« PreviousContinue »
delivery of the article, shall be advertised and contracted for by the Secretary of the Treasury, instead of by the several departments and establishments, upon such days as he may designate. There shall be a general supply committee in lieu of the board provided for in section thirtyseven hundred and nine of the Revised Statutes as amended, composed of officers, one from each such department, designated by the head thereof, the duties of which committee shall be to make, under the direction of the said Secretary, an annual schedule of required miscellaneous supplies, to standardize such supplies, eliminating all unnecessary grades and varieties, and to aid said Secretary in soliciting bids based upon formulas and specifications drawn up by such experts in the service of the Government as the committee may see fit to call upon, who'shall render whatever assistance they may require. The committee shall aid said Secretary in securing the proper fulfillment of the contracts for such supplies, for which purpose the said Secretary shall prescribe, and all departments comply with, rules providing for such examination and tests of the articles received as may be necessary for such purpose; in making additions to the said schedule; in opening and considering the bids, and shall perform such other similar duties as he may assign to them: Provided, That the articles intended to be purchased in this manner are those in common use by or suitable to the ordinary needs of two or more such departments or establishments; but the said Secretary shall have discretion to amend the annual common supply schedule from time to time as to any articles that, in his judgment, can as well be thus purchased. In all cases only one bond for the proper performance of each contract shall be required, notwithstanding that supplies for more than one department or government establishment are included in such contract. Every purchase or drawing of such supplies from the contractor shall be immediately reported to said committee. No disbursing officer shall be a member of such committee. No department or establishment shall purchase or draw supplies from the common schedule through more than one office or bureau, except in case of detached bureaus or offices having field or outlying service, which may purchase
directly from the contractor with the permission of the head of their department: And provided further, That telephone service, electric light, and power service purchased or contracted for from companies or individuals shall be so obtained by him.”
First. In the case of a "detached bureau or office having field or outlying service," such, for example, as the MarineHospital Service or the Revenue-Cutter Service, which requires supplies for use both in the city of Washington and at various places throughout the country, may all the supplies required by such bureau, those to be used in the city of Washington, as well as those to be used elsewhere, be ordered directly by such bureau from the person having the contract to supply all of the departments ?
Second. To whom does the word "him" in the last proviso in the section refer, and what is the meaning of this proviso?
Third. Is section 3709, Revised Statutes, as amended by acts of January 27, 1894, and April 21, 1894 (28 Stat. 33 and 62), in so far as they provide that the Bureau of Engraving and Printing is excepted therefrom, repealed by this act by implication ?
I will reply to the inquiries in the order given.
First. May a detached bureau or office having a field or outlying service order all of its supplies directly from the parties who have contracted to furnish them?
The general provision is that each department and establishment shall draw its supplies through one office or bureau; but the bureaus and offices mentioned constitute an exception to this general provision, which exception depends upon one condition that the bureau or office have a field or outlying service. If it has such service, it may, by permission of the head of the department, be excluded entirely from the general rule, there being no suggestion in the statute of a limitation or restriction as to the amount or character of supplies to be ordered or the point of their delivery.
Therefore, my answer to the first question is that the head of a department may permit any of its bureaus or
offices having a field or outlying service to order all of their supplies, those needed for use in the city of Washington, as well as elsewhere, directly from the contractor.
Second. What is the meaning of the final proviso which relates to telephone, electric light, and power service ?
The last word “him” necessarily refers to the Secretary of the Treasury. He is the only single individual mentioned in the entire section, except where it is declared that the supply committee shall be composed of an officer from each department "designated by the head thereof;"> and it is apparent that “him” can have no reference to the head of a department as such. The proviso, therefore, is that the Secretary of the Treasury shall "so obtain telephone and electric light and power service purchased or contracted for from companies or individuals; and the word "so" can refer to nothing else than the method of contracting for other supplies, which is set forth in the preceding parts of the section; and when such services are contracted for they must be ordered as other supplies.
The purpose of this provision was to concentrate in the hands of one individual the power to contract for the services mentioned for all of the departments and establishments, so that uniformity and the most advantageous rates could be secured.
Third. Is the Bureau of Engraving and Printing subject to the provisions of said section 4 of the act of June 17, 1910 ?
Section 3709, Revised Statutes, provided that all purchases and contracts for supplies in any of the departments of the Government, except for personal services, should be made by advertising, except in case of a public exigency. By the act of January 27, 1894 (28 Stat. 33, ch. 22), this section was amended by providing that the advertisements should all be made upon the same day, and specifying particularly as to the opening of the bids and their submission to a board created by the act, and the recommendation of proposals by this board; and the departments and establishments to which this amendment was applicable were enumerated therein, and paper and materials for the use of the Government Printing Office and materials used in the
work of the Bureau of Engraving and Printing were expressly excluded therefrom.
By section 2 of the act of April 21, 1894, ch. 61 (28 Stat. 62), the act of January 27, 1894, was amended by limiting its application to “advertisements for proposals for fuel, ice, stationery, and other miscellaneous supplies to be purchased at Washington for the use of the executive departments and other government establishments therein named.” This left seciion 3709, Revised Statutes, in force as to all kinds of supplies not mentioned in this act.
With the law in this condition, the section under consideration was passed, which, in its opening sentence, is made to apply to “all supplies of fuel, ice, stationery, and other miscellaneous supplies for the executive departments and government establishments in Washington.” This act was intended to, and did, supersede the acts of April 21 and January 27, 1894, and prescribes the method by which the supplies mentioned should thereafter be purchased, and the Bureau of Engraving and Printing, not being excepted therefrom, the supplies of the character mentioned in the act for that bureau must be contracted for and purchased in accordance with its terms. Very respectfully,
J. A. FOWLER,
Acting Attorney-General. The SECRETARY OF THE TREASURY.
PURCHASE OF SUPPLIES FROM PARTY TO AN UNLAWFUL
An adjudication that a person or corporation is a party to an unlawful
trust or monopoly, from which decree an appeal has been taken, is not sufficient to exclude such person or corporation from competition in the sale of supplies to the Government. Opinion of April 19, 1910
(28 Op. 247), followed. Statutory authority "to reject any and all bids” does not confer the right DEPARTMENT OF JUSTICE,
to arbitrarily or capriciously reject any bid. A statutory provision that supplies shall be purchased where they can
be cheapest, etc., “the interests of the Government considered," does not enlarge the authority of the contracting officer, but has reference to the cost and adaptability of the supplies.
July 25, 1910. Sir: I have the honor to acknowledge receipt of your communication of June 14, 1910, in which you state the following facts:
On December 11, 1909, a War Department order was issued by you directed to all officers and agents of the Government in and under the War Department, stating that the Standard Oil Company of New Jersey, and other companies, specifying them, had been adjudged parties to an unlawful trust, and that they were by said order brought within the scope of directions heretofore given, that
"No contract on behalf of the Government be entered into directly with any corporation which has been adjudicated to be a party to an unlawful trust and monopoly and to be carrying on business in violation of law, nor with any middleman or agent of any such company or concern, where it is known that such middleman or agent is acting for such unlawful concern."
On May 31, 1910, the Vacuum Oil Company, one of the companies specified in said order, requested the suspension of the above-mentioned order pending the ultimate decree of the Supreme Court, basing the request upon the act of March 3, 1901, describing the method of purchasing supplies for the army, and an opinion of the Attorney-General thereon, which appears in volume 18, Op. 349; and
You request my opinion as to whether or not the adjudication that a person or corporation is a party to an unlawful trust or monopoly and is carrying on business in violation of law is sufficient to exclude such person or corporation from competition in the sale of supplies to the Government.
The following appear to be the statutes which have a material bearing upon the question propounded:
Section 3709, Revised Statutes, provides:
“All purchases and contracts for supplies or services, in any of the departments of the Government, except for personal services, shall be made by advertising a sufficient