notwithstanding a decision holding it unconstitutional a statute continues to remain on the statute books; and that if a statute be declared unconstitutional and the decision so declaring it be subsequently overruled the statute will then be held valid from the date it became effective. Pierce, et al. v. Pierce, 46 Ind. 86, 95; McCollum v. McConaughy, 141 Iowa 172, 176, 119 N. W. 539, 541; Christopher v. Mungen, 61 Fla. 513, 532, 55 So. 273, 280; Allison v. Corker, 67 N. J. L. 596, 600; Boyd v. Alabama, 94 U. S. 645, 619; State v. O'Neil, 147 Iowa 513, 515, 520, 523; The Effect of an Unconstitutional Statute by Oliver P. Field, pp. 181, et seq. See also Thomas v. Gilbert, 76 Ohio St. 341; Jackson v. Harris, 43 F. (2d) 513, 516; Haskett et al v. Maxey et al, 134 Ind. 182, 190; Center School Township v. State, 150 Ind. 168, 173; Ray v. Natural Gas Co., 138 Pa. St. 576, 590; Storrie v. Cortes, 90 Tex. 283, 291; Hoven v. McCarthy Bros. Co., 163 Minn. 339, 341; Allen. v. Allen, 95 Cal. 184, 199; Crigler v. Shepler, 79 Kan. 834, 840; Adkins v. Children's Hospital, supra 544; 7 R. C. L., p. 1010.

It is, therefore, my opinion that the District of Columbia minimum-wage law is now a valid act of the Congress and may be administered in accordance with its terms.

Respectfully,

HOMER CUMMINGS.

RIGHT OF DOUGLAS AIRCRAFT CO. TO CONTRACT PRICE FOR AIRPLANES FURNISHED ARMY

Sec. 10 (c) of the Air Corps Act authorizes the Secretary of War to contract with the winner in a design competition, held under secs. 10 (a) and 10 (b), on terms and conditions deemed most advantageous for furnishing or constructing the aircraft indicated in the advertisement for submission of competitive designs.

Sec. 10 (t) authorizes the Secretary, after advertising for bids, to select the airplane best suited to the needs of the Government and to award a contract to the bidder offering it; and his action in making the selection and award is reviewable only by the President and the Federal courts.

The weight of decision is that it will suffice if an act is so done that it accomplishes the substantial purposes of a statute though not done in precise accord therewith.

That the Secretary failed to comply with certain provisions of the Air Corps Act does not defeat the right of a contractor to be paid for airplanes furnished by it in accordance with contract and accepted and used.

APRIL 9, 1937.

The SECRETARY OF WAR.

MY DEAR MR. SECRETARY: Reference is made to your letter, undated, in which you request my opinion upon a question arising in your Department in connection with a contract with the Douglas Aircraft Co. for the furnishing of transport airplanes for the Army.

From your letter and data submitted in connection therewith, it appears that on September 21, 1935, you awarded to the Douglas Aircraft Co. a contract for the furnishing of 20 transport airplanes for the Army. On October 28, 1935, the Fairchild Aircraft Corporation, an unsuccessful bidder on said contract, filed with the Comptroller General of the United States a protest against the award of the contract to the Douglas Aircraft Co. Thereafter, the Comptroller General, in letters dated February 19 and June 13, 1936, ruled that the said award and the contract based thereon were unlawful, for the reason that under the method of bidding adopted and followed the competition secured related principally to quality and performance, and that there had been no sufficient competition as to price.

You state that the contract was entered into under an administrative determination and award made by you under authority of paragraph (t) of section 10 of the act of July 2, 1926, c. 721, 44 Stat. 780, 788, known as the Air Corps Act. You further state that the Douglas Aircraft Co. has on its part fully and satisfactorily performed the contract and has delivered to the War Department the airplanes contracted for; that the Department has accepted. and is now using them, and that nothing further remains to be done under the contract except to pay for the airplanes so delivered.

You request my opinion whether under the facts furnished by you the Douglas Aircraft Co. is now entitled to

payment for the airplanes delivered in accordance with the terms of the contract.

The general procurement statutes, as embodied in section 3709 of the Revised Statutes and related acts, require strict competitive bidding as to price; and it has been held that invitations for bids under them must contain specifications sufficiently definite to assure that all bidders offering products complying with the specifications will offer substantially the same product, and that the award of the contract must be made to the lowest responsible bidder. (See my opinion to you of January 26, 1937, 38 Op. 555, relating to contract with the Graybar Electric Co.)

Section 10 of the Air Corps Act, however, provides a different method for the procurement of aircraft from that, provided by the general procurement statutes. The provisions of that section here pertinent are as follows:

"SEC. 10. (a) That in order to encourage the development of aviation and improve the efficiency of the Army and Navy aeronautical matériel the Secretary of War or the Secretary of the Navy, prior to the procurement of new designs of aircraft or aircraft parts or aeronautical accessories, shall, by advertisement for a period of thirty days in at least three of the leading aeronautical journals and in such other manner as he may deem advisable, invite the submission in competition, by sealed communications, of such designs of aircraft, aircraft parts, and aeronautical accessories, together with a statement of the price for which such designs in whole or in part will be sold to the Govern

ment.

"(b) The aforesaid advertisement shall specify a sufficient time, not less than sixty days from the expiration of the advertising period, within which all such communications containing designs and prices therefor must be submitted, and all such communications received shall be carefully kept sealed in the War Department or the Navy Department, as the case may be, until the expiration of said specified time, and no designs mailed after that time shall be received or considered. Said advertisement shall state in general terms the kind of aircraft, parts, or accessories to be de

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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