veloped and the approximate number or quantity required, and the department concerned shall furnish to each applicant identical specific detailed information as to the conditions and requirements of the competition and as to the various features and characteristics to be developed, listing specifically the respective measures of merit, expressed in rates per centum, that shall be applied in determining the merits of the designs, and said measures of merit shall be adhered to throughout such competition. All designs received up to the time specified for submitting them shall then be referred to a board appointed for that purpose by the Secretary of the department concerned and shall be appraised by it as soon as practicable and report made to the Secretary as to the winner or winners of such competition. When said Secretary shall have approved the report of said board, he shall then fix a time and place for a public announcement of the results and notify each competitor thereof; but if said report shall be disapproved by said Secretary, the papers shall be returned to the board for revision or the competition be decided by the Secretary, in his discretion, and in any case the decision of the Secretary shall be final and conclusive. Such announcement shall include the percentages awarded to each of the several features or characteristics of the designs submitted by each competitor and the prices named by the competitors for their designs and the several features thereof if separable. "(c) Thereupon the said Secretary is authorized to contract with the winner or winners in such competition on such terms and conditions as he may deem most advantageous to the Government for furnishing or constructing all of each of the items, or all of any one or more of the several items of the aircraft, or parts, or accessories indicated in the advertisement, as the said Secretary shall find that in his judgment a winner is, or can within a reasonable time become, able and equipped to furnish or construct satisfactorily all or part, provided said Secretary and the winner shall be able to agree on a reasonable price. If the Secretary shall decide that a winner can not reasonably carry out and perform a contract for all or part of such aircraft, parts, or accessories, as above provided, then he is authorized to purchase the winning designs or any separable parts thereof if a fair and reasonable price can be agreed on with the winner, but not in excess of the price submitted with the designs. "(e) The competitors in design competition mentioned in this section shall submit with their designs a graduated scale of prices for which they are willing to construct any or all or each of the aircraft, aircraft parts, and aeronautical accessories for which designs are submitted and such stated prices shall not be exceeded in the awarding of contracts contemplated by this section. * * * * "(t) Hereafter whenever the Secretary of War, or the Secretary of the Navy, shall enter into a contract for or on behalf of the United States, for aircraft, aircraft parts, or aeronautical accessories, said Secretary is hereby authorized to award such contract to the bidder that said Secretary shall find to be the lowest responsible bidder that can satisfactorily perform the work or the service required to the best advantage of the Government; and the decision of the Secretary of the department concerned as to the award of such contract, the interpretation of the provisions of the contract, and the application and administration of the contract shall not be reviewable, otherwise than as may be therein provided for, by any officer or tribunal of the United States except the President and the Federal courts." This statute, insofar as the procurement of aircraft for the Government is concerned, relaxes the strict rule of competitive bidding on a price basis as required by the general procurement statutes, and permits the procurement of such aircraft under competition based on performance. It contemplates that performance rather than price shall be the controlling factor. This construction of the statute is supported by its legislative history. The section had its inception in an extended investigation and study by the Committee on Military Affairs of the House of Representatives of the problems involved in the procurement of military aircraft. This led to the introduction in the House on May 27, 1926, of two bills (H. R. 12471 and H. R. 12472) respectively introduced by Mr. McSwain, Chairman of the House Committee on Military Affairs, and Mr. Vinson, Chairman of the House Committee on Naval Affairs. The provisions of section 10 of the Act of July 2, 1926, were substantially contained in the said two bills, which were identical in terms except that one, H. R. 12471, would have legislated exclusively for the Army, and the other, H. R. 12472, for the Navy. Separate reports (H. Rep. No. 1395 and No. 1396, 69th Cong., 1st sess.), in all material respects identical in terms, recommended enactment of the two bills. Report No. 1395 on H. R. 12471, relative to the Army, gave as a reason for the proposed legislation the following: "Ever since the introduction of aeronautics into the military service as an element of the national defense the Secretary of War has in the procurement of improved designs of aircraft and the components thereof been handicapped to such an extent by inadequate, confused, and unnecessarily restrictive laws that the aviation material of the Army is inadequate in quantity and inefficient in character, and is suffering from a lack of progress that threatens complete stagnation." As to the general effect of the bill, the report stated in part: "In the bill there are some provisions that constitute a departure from previous legislative practice relating to the Army, but they are, in the opinion of the committee, of a character entirely beneficial to the Government's interests. The Secretary of War is given a discretionary authority that has been long needed to procure aircraft and the components thereof from others than the bidders that name the lowest prices. He may exercise such discretion as will relieve the Government of the misfortune of being obliged, as heretofore, to contract for and accept apparatus furnished or constructed by a 'lowest bidder' whose product may prove, as has often happened, a useless investment and an apparatus more dangerous to those operating it than to an enemy.' The substance of the two bills above referred to was by amendment subsequently incorporated in H. R. 10827 by conferees of the House and Senate. This bill later became the act of July 2, 1926. Mr. Vinson, one of the House conferees and also the introducer of H. R. 12472, in his explanation of section 10 on the floor of the House, said in part (Cong. Rec., v. 67, pt. 11, pp. 12268-12270): "Since the signing of the armistice, with characteristic perseverance patriotic men have been endeavoring to throw the searchlight of truth upon our aircraft situation. There have been since the close of the war more than 21 major investigations and studies of this subject. Charges have been made by gentlemen having official status in the Government and those in civil life. Hundreds and hundreds of witnesses have testified upon the various aspects of the subject; thousands and thousands of pages of testimony written; many recommendations made. Before this Congress convened there had been little if anything done by way of legislation to obviate just criticism in which our country found itself in respect of aviation. * * * "The Committee on Military Affairs held hearings over a period of months upon the general subject of aviation and its relation to the other armed forces. But these hear ings were mainly concerned with the increase of our air forces both in equipment and personnel. The committee could not, because of the time element, give all this period to the particular subjects of design and procurement. "It was thought best to have joint hearings before the Committees on Naval Affairs and Military Affairs upon a bill changing the existing law as to the procurement of new designs and aircraft therefrom. Many days were spent in these hearings. The testimony was confined to the betterment of conditions affecting designs, the encouragement of inventors, and the procurement in quantity production. All viewpoints were presented. Everyone appearing before this committee conceded that the existing laws pertaining to design and procurement were so inflexible that the Government could not readily obtain the best to be had in aircraft, and all recognized the need to stimulate not only the industry in this country but the inventive genius of our land. As was usual, there was practically unanimity relative to the condition of the patient, but the prescription had yet to be written and the medicine prescribed. "Since the war every student of the subject has realized that we have no policy that will either permit the departments to obtain the best in aircraft or to stimulate the genius of the country; there is nothing in the existing law that permits any encouragement to the industry, rather it tends toward the destruction of it. "It is commonplace to state that the art of flying and the aviation industry is in its infancy. No one will contradict that statement. Since the war, there has been a stupendous impetus in the art; in the future, it will advance in enormous strides. But, in this stage of its development, we have been pursuing the same course in the purchase of our planes as if it were a fully developed art. The existing law is inflexible, and under its operation the departments have no discretion in the manner in which our aircraft must be procured (and by aircraft in this discussion I include aircraft parts and aeronautical accessories). The existing law relative to the subject of purchase of our aircraft is interwoven with and builded upon the statutes which relate to the purchase of all other material and supplies for the Government. One may inquire why the same rules of law governing in such matters would not be applicable in respect of aircraft. There is a material difference. In the matter of supplies, we have a standardization. In aviation, standardization has not arrived, and, as yet, does not exist. It is a changing art; an art in which the best today is mediocre tomorrow. * * * * * "The purpose underlying this measure is to permit our Government to secure the most highly developed types of |