B-16653, JUNE 7, 1941, 20 COMP. GEN. 862

B-16653, JUNE 7, 1941, 20 COMP. GEN. 862

MOTION PICTURE PRODUCTION - AVAILABILITY OF GRAND COULEE DAM PROJECT FUNDS; ADVERTISING REQUIREMENTS; ETC. WHILE THE FUNDS MADE AVAILABLE BY THE 1941 INTERIOR DEPARTMENT APPROPRIATION ACT FOR CONTINUING CONSTRUCTION OF THE GRAND COULEE DAM PROJECT MAY BE CHARGED WITH THE COST OF PRODUCING A MOTION PICTURE RECORD OF THE SALIENT FEATURES OF PROJECT CONSTRUCTION IF ADMINISTRATIVELY DETERMINED THAT SUCH A RECORD IS REASONABLY REQUISITE TO AND ADVANTAGEOUS IN CONNECTION WITH THE CONSTRUCTION OF THE PROJECT, SAID FUNDS ARE NOT AVAILABLE FOR SUCH COST FOR THE PURPOSE OF DISSEMINATING INFORMATION AND INSTRUCTION TO BENEFICIARIES OF RECLAMATION. WHILE THE GRAND COULEE DAM PROJECT IS NOT YET IN OPERATION AS A RECLAMATION PROJECT, THE FUNDS APPROPRIATED BY THE 1941 INTERIOR DEPARTMENT APPROPRIATION ACT FOR GIVING INFORMATION AND ADVICE TO SETTLERS ON RECLAMATION PROJECTS WOULD BE AVAILABLE FOR THE COST OF A MOTION- PICTURE RECORD OF THE CONSTRUCTION FEATURES OF THE GRAND COULEE DAM IF IT BE ADMINISTRATIVELY DETERMINED THAT SUCH A RECORD WOULD PROVIDE A SUITABLE VEHICLE FOR GIVING TO THE SETTLERS ON OTHER RECLAMATION PROJECTS NOW IN OPERATION INFORMATION OF THE NATURE DESCRIBED IN SAID ACT. A PROPOSED CONTRACT WITH A MOTION-PICTURE PRODUCER, WHICH INVOLVES NOT ONLY THE PERSONAL SERVICES OF THE CONTRACTOR BUT ALSO THE FURNISHING BY THE CONTRACTOR OF NUMEROUS ITEMS OF PHOTOGRAPHIC EQUIPMENT AND THE EMPLOYMENT OF PERSONNEL TO SERVICE SUCH EQUIPMENT, IS NOT EXEMPTED FROM THE ADVERTISING FOR BIDS REQUIREMENTS OF SECTION 3709, REVISED STATUTES, EVEN THOUGH IT IS A CONTRACT FOR SERVICES IN CONNECTION WITH "ART FORMS.' EXTENT TO WHICH INVITATION FOR BIDS SHOULD BE CIRCULATED, REJECTION OF BIDS OF UNQUALIFIED BIDDERS, ETC., DISCUSSED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, JUNE 7, 1941:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 6, 1941, AS FOLLOWS:

UNDER THE PROVISIONS OF THE RECLAMATION ACT OF JUNE 17, 1902 (32 STAT. 388), AND PARTICULARLY THE CURRENT APPROPRIATION ACT OF JUNE 18, 1940 (54 STAT. 448), IT IS BELIEVED THAT AUTHORITY EXISTS, THROUGH THE MEDIUM OF MOTION PICTURES, TO DISSEMINATE INFORMATION AND INSTRUCTION TO THE BENEFICIARIES OF RECLAMATION AND TO PRESERVE CERTAIN RECORDS OF THE SALIENT FEATURES OF PROJECT CONSTRUCTION. THE BUREAU OF RECLAMATION CONSIDERS IT NECESSARY, DESIRABLE, AND APPROPRIATE TO PRODUCE A MOTION PICTURE USING AS THE SUBJECT THE GRAND COULEE DAM AND APPURTENANT WORKS OF THE COLUMBIA BASIN PROJECT IN WASHINGTON.

THE UNDERTAKING WOULD REQUIRE THE SERVICES OF AN EXPERIENCED MOTION PICTURE PRODUCER, WHO HAS SOME EQUIPMENT AND WHOSE TASK, AMONG OTHER THINGS, WOULD INCLUDE THE FOLLOWING:

(A) TO SERVE AS TECHNICAL CONSULTANT TO THE BUREAU;

(B) TO SUPERVISE, DIRECT, CUT, AND EDIT THE MOTION-PICTURE FILM;

(C) TO STUDY CERTAIN MOTION-PICTURE FILM WHICH ALREADY HAS BEEN TAKEN BY THE BUREAU AND TO DETERMINE WHAT ADDITIONAL MATERIAL SHOULD BE PHOTOGRAPHED IN ORDER TO COMPLETE A DOCUMENTARY MOTION PICTURE;

(D) TO PREPARE A SUITABLE SHOOTING SCRIPT FROM WHICH A FINISHED MOTION PICTURE WILL BE CUT AND TO SUPERVISE ANY NECESSARY LABORATORY WORK;

(E) TO FURNISH SUITABLE EQUIPMENT FOR THE ACCOMPLISHMENT OF VARIOUS OF THE NECESSARY FUNCTIONS.

THE BUREAU HAS BEEN ABLE TO CONTACT AN INDIVIDUAL WHO POSSESSES THE SPECIAL EXPERIENCE AND TRAINING REQUISITE TO DIRECTING AND EDITING MOTION PICTURES AND HE IS WILLING TO UNDERTAKE THE WORK AND FURNISH CERTAIN ESSENTIAL EQUIPMENT NOT OWNED BY THE BUREAU AT THE REMUNERATION NAMED AND IN ACCORDANCE WITH THE TERMS OF THE ENCLOSED PROPOSED CONTRACT. THE MOTION PICTURE IS AN ART FORM, EVEN WHEN USED TO RECORD AND TO DOCUMENT, AND AS SUCH CANNOT BE MADE THE SUBJECT OF SPECIFICATIONS WHICH WILL INSURE THE REQUIRED QUALITY AND THE NEEDED DEGREE OF TECHNICAL EXCELLENCE. BEST ASSURANCE OF THESE IS OBTAINED BY CHOOSING AN INDIVIDUAL WITH THE EXPERIENCE AND PAST PERFORMANCES WHICH DEMONSTRATE ABILITY TO THE REQUIRED DEGREE. AN INADEQUATE PRODUCER AND DIRECTOR WOULD ENDANGER VALUABLE NEGATIVES WHICH CANNOT BE REPRODUCED; WOULD THROUGH WASTE OF TIME AND MATERIAL RAISE THE COST PERHAPS TO PROHIBITIVE FIGURES; AND MIGHT IN THE END BRING FORTH AN INADEQUATE OR PERHAPS EVEN OFFENSIVE FILM. YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER THE BUREAU OF RECLAMATION MAY ENTER INTO A CONTRACT SUCH AS THAT ENCLOSED WITHOUT COMPLIANCE WITH THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, REGARDING ADVERTISING FOR PROPOSALS.

THE MONEYS MADE AVAILABLE BY THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1941, JUNE 18, 1940, FOR CONTINUATION OF CONSTRUCTION OF THE GRAND COULEE DAM PROJECT, 54 STAT. 438, AND FOR ADMINISTRATIVE EXPENSES IN CONNECTION THEREWITH, PROPERLY MAY BE CHARGED WITH THE COST OF PRODUCTION OF A MOTION -PICTURE RECORD OF THE SALIENT FEATURES OF PROJECT CONSTRUCTION IF YOU DETERMINE THAT SUCH A RECORD IS REASONABLY REQUISITE TO AND WOULD BE ADVANTAGEOUS IN CONNECTION WITH CONSTRUCTION OF THE PROJECT. SEE DECISION OF APRIL 19, 1940, B-9267, TO THE FEDERAL WORKS ADMINISTRATOR. CF. 18 COMP. GEN. 843. IT IS NOT CLEAR, HOWEVER, THAT THE MOTION PICTURE CONTEMPLATED BY THE BUREAU OF RECLAMATION WOULD BE OF A DOCUMENTARY OR TECHNICAL CHARACTER, OR THAT IT WOULD BE INTENDED PRIMARILY FOR USE IN CONNECTION WITH CONSTRUCTION OF THE PROJECT. IT APPEARS, RATHER, FROM THE STATEMENTS IN YOUR LETTER AND FROM CERTAIN PROVISIONS OF THE PROPOSED CONTRACT--- PARTICULARLY THE REQUIREMENT OF THE CONTRACT THAT THE GOVERNMENT FURNISH "NECESSARY MUSIC, SOUND EFFECTS, AND STOCK MOTION- PICTURE SHOTS"--- THAT THE DISSEMINATION OF INFORMATION AND INSTRUCTION TO THE BENEFICIARIES OF RECLAMATION IS THE MOVING FACTOR IN THE PRODUCTION OF THE CONTEMPLATED PICTURE.

THE PORTIONS OF THE CITED ACT WHICH PROVIDE FUNDS FOR CONTINUATION OF CONSTRUCTION OF THE GRAND COULEE DAM PROJECT, AND FOR ADMINISTRATIVE EXPENSES IN CONNECTION THEREWITH, CONTAIN NO REFERENCE TO THE PRODUCTION OF MOTION PICTURES AND NO PROVISION FOR THE DISSEMINATION OF INFORMATION AND INSTRUCTION. IT MUST BE HELD, THEREFORE, THAT SUCH FUNDS ARE NOT AVAILABLE FOR THE PRODUCTION OF A MOTION PICTURE FOR THAT PURPOSE OR FOR ANY OTHER PURPOSE NOT REQUISITE TO THE CONSTRUCTION OF THE PROJECT. 9267, SUPRA, CITING 16 COMP. GEN. 462.

IN THIS CONNECTION, THERE MAY BE CONSIDERED THE PROVISIONS OF THE 1941 INTERIOR DEPARTMENT APPROPRIATION ACT RELATING TO OPERATION AND MAINTENANCE ADMINISTRATION, 54 STAT. 435, AS FOLLOWS:

OPERATION AND MAINTENANCE ADMINISTRATION: FOR NECESSARY PAY OF EMPLOYEES, TRAVELING AND OTHER EXPENSES INCIDENT TO THE GENERAL ADMINISTRATION OF RECLAMATION PROJECTS, EITHER OPERATED AND MAINTAINED BY THE BUREAU OR TRANSFERRED TO WATER USERS' ORGANIZATIONS FOR OPERATION AND MAINTENANCE, AND INCIDENT TO THE SALE OF TEMPORARILY AND PERMANENTLY UNPRODUCTIVE PUBLIC LANDS AS AUTHORIZED BY THE ACT OF MAY 16, 1930 (46 STAT. 367), INCLUDING GIVING INFORMATION AND ADVICE TO SETTLERS ON RECLAMATION PROJECTS IN THE SELECTION OF LANDS, EQUIPMENT, AND LIVESTOCK, THE PREPARATION OF LAND FOR IRRIGATION, THE SELECTION OF CROPS, METHODS OF IRRIGATION AND AGRICULTURAL PRACTICE, AND GENERAL FARM MANAGEMENT, THE COST OF WHICH SHALL BE CHARGED TO THE GENERAL RECLAMATION FUND AND SHALL NOT BE CHARGED AS A PART OF THE CONSTRUCTION OR OPERATION AND MAINTENANCE COST, PAYABLE BY THE WATER USERS UNDER THE PROJECTS, $35,000.

WHILE IT IS UNDERSTOOD THE GRAND COULEE DAM PROJECT IS NOT YET IN OPERATION AS A RECLAMATION PROJECT, THE FUNDS APPROPRIATED BY THE ABOVE QUOTED PORTION OF THE CITED ACT, FOR GIVING INFORMATION AND ADVICE TO SETTLERS ON RECLAMATION PROJECTS, WOULD BE AVAILABLE FOR THE CONTEMPLATED MOTION-PICTURE RECORD OF THE CONSTRUCTION FEATURES OF THE GRAND COULEE DAM IF IT BE DETERMINED ADMINISTRATIVELY THAT SUCH A RECORD WOULD PROVIDE A SUITABLE VEHICLE FOR GIVING TO THE SETTLERS ON RECLAMATION PROJECTS WHICH ARE NOW IN OPERATION, INFORMATION OF THE NATURE DESCRIBED IN THE QUOTED PROVISION.

THE PROPOSED CONTRACT TRANSMITTED WITH YOUR LETTER WOULD INVOLVE NOT ONLY THE PERSONAL SERVICES OF THE CONTRACTOR, BUT ALSO THE FURNISHING BY THE CONTRACTOR OF NUMEROUS ITEMS OF PHOTOGRAPHIC EQUIPMENT, AND APPARENTLY THE EMPLOYMENT BY THE CONTRACTOR OF PERSONNEL TO SERVICE SUCH EQUIPMENT. THE CONTRACT, THEREFORE, WOULD COME WITHIN THE PURVIEW OF SECTION 3709, REVISED STATUTES, AND IS REQUIRED TO BE AWARDED AFTER ADVERTISING FOR PROPOSALS. THE TERMS OF THE STATUTE ARE PLAIN, AND NEITHER THE ADMINISTRATIVE NOR THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE AUTHORIZED TO READ INTO IT AN EXCEPTION, WITH RESPECT TO CONTRACTS FOR SERVICES IN CONNECTION WITH ART FORMS, WHICH THE CONGRESS DID NOT WRITE INTO IT.

OF COURSE, THE FACT THAT THE CONTRACT MUST BE AWARDED AFTER ADVERTISING FOR PROPOSALS WOULD NOT REQUIRE THE ACCEPTANCE OF A BID SUBMITTED%D BY ONE NOT QUALIFIED TO PERFORM THE NECESSARY SERVICES. SEE O-BRIEN V. CARNEY (6 F. ( SUPP.) 761, 762). IF, AS STATED IN YOUR LETTER, THE BEST ASSURANCE OF OBTAINING THE REQUIRED QUALITY AND NEEDED DEGREE OF TECHNICAL EXCELLENCE WOULD BE OBTAINED "BY CHOOSING AN INDIVIDUAL WITH THE EXPERIENCE AND PAST PERFORMANCES WHICH DEMONSTRATE ABILITY TO THE REQUIRED DEGREE," IT IS NOT CLEAR WHY A PERSON OF THE TYPE DESIRED COULD NOT BE OBTAINED BY ADVERTISING UPON THE BASIS OF AN INVITATION FOR BIDS WHICH WOULD SET FORTH THE NECESSARY QUALIFICATIONS. OR, IN VIEW OF THE NECESSITY OF SECURING A CONTRACTOR OF ADMITTED COMPETENCE, THE CIRCULATION OF AN INVITATION FOR BIDS COULD BE LIMITED TO PERSONS OR FIRMS KNOWN TO POSSESS THE NECESSARY EQUIPMENT AND THE REQUISITE DEGREE OF SKILL, IF YOU DETERMINE THAT SUCH A PROCEDURE WOULD BE MORE ADVANTAGEOUS TO THE UNITED STATES THAN THE GENERAL CIRCULATION OF AN INVITATION BASED UPON SPECIFICATIONS DESCRIBING THE NECESSARY QUALIFICATIONS FOR BIDDING (19 COMP. GEN. 523). IT IS NOT STATED IN YOUR LETTER, NOR IS IT OTHERWISE INDICATED, THAT ONLY ONE PERSON OR FIRM IN THE UNITED STATES POSSESSES THE NECESSARY EQUIPMENT OR THE REQUISITE QUALIFICATIONS TO PERFORM THE SERVICES DESIRED.