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13 COMP. GEN. 359




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American Government

13 COMP. GEN. 359

Comptroller General of the United States
May 16, 1934

A-55166, MAY 16, 1934, 13 COMP. GEN. 359

ADVERTISING - SPECIFICATIONS - CONDITIONAL BIDS UNDER EXECUTIVE ORDER NO. 6646, DATED MARCH 14, 1934, AND MADE A PART OF ADVERTISED SPECIFICATIONS, BIDDERS ARE REQUIRED TO CERTIFY THAT THEY ARE COMPLYING WITH, AND WILL CONTINUE TO COMPLY WITH THE APPLICABLE APPROVED CODE OF FAIR COMPETITION FOR THE TRADE OR INDUSTRY CONCERNED, AND IN EVENT THE BID IS ACCEPTED THE CONTRACTOR MUST AGREE THAT HE WILL NOT ACCEPT OR PURCHASE FOR THE PERFORMANCE OF ANY SUCH CONTRACT ANY ARTICLES, MATERIALS, OR SUPPLIES IN WHOLE OR IN PART PRODUCED OR FURNISHED BY ANY PERSON WHO SHALL NOT HAVE CERTIFIED THAT HE IS COMPLYING WITH AND WILL CONTINUE TO COMPLY WITH THE APPLICABLE APPROVED CODE OF FAIR COMPETITION WHICH RELATES TO SUCH ARTICLES, MATERIALS, OR SUPPLIES. WHEN A BIDDER QUALIFIES HIS BID WITH RESPECT THERETO THE BID IS NOT RESPONSIVE TO THE ADVERTISED SPECIFICATIONS AND IS NOT FOR CONSIDERATION.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, MAY 16, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 19, 1934, WITH ENCLOSURES, TO THE EFFECT THAT IN RESPONSE TO AN ADVERTISEMENT DATED MARCH 30, 1934, THERE WERE RECEIVED AND OPENED APRIL 10, 1934, FIVE BIDS AND ONE ALTERNATE BID FOR THE DELIVERY OF TWO 1/2-TON TRUCKS FOR USE OF THE ELEVENTH LIGHTHOUSE DISTRICT, DETROIT, MICH.; THAT THE LOWEST BID SUBMITTED WAS THAT OF THE NORTHWEST MOTOR CO. IN THE SUM OF $488.26 EACH; THAT THE NEXT LOWEST BID WAS THAT OF THE CHEVROLET MOTOR CO. IN THE SUM OF $551.35 EACH; AND THAT THE THIRD LOWEST BID WAS THE ALTERNATE BID SUBMITTED BY THE NORTHWEST MOTOR CO. IN THE SUM OF $613.88 EACH. APPARENTLY EITHER THE TRUCKS OFFERED BY THE NORTHWEST MOTOR CO. OR THOSE OFFERED BY THE CHEVROLET MOTOR CO. WOULD MEET THE TERMS OF THE ADVERTISED SPECIFICATIONS AND THE ONLY DIFFERENCE BETWEEN THE TWO BIDS OF THE NORTHWEST MOTOR CO. IS THAT IN ONE CASE THE TRUCKS WERE OFFERED TO THE GOVERNMENT LESS CERTAIN DISCOUNT FROM THE MANUFACTURER'S LIST PRICE, WHILE IN THE OTHER CASE THE TRUCKS WERE OFFERED WITHOUT SUCH DISCOUNT FOR CONSIDERATION IN EVENT IT BE CONCLUDED THAT SUCH BIDDER IS PROHIBITED UNDER THE CODE OF FAIR COMPETITION FOR THE MOTOR VEHICLE RETAILING TRADE APPROVED OCTOBER 3, 1933, FROM SELLING TO THE GOVERNMENT TRUCKS AT LESS THAN THE LIST PRICE. YOU HAVE REQUESTED DECISION WHETHER THERE SHOULD BE ACCEPTED THE BID OF THE NORTHWEST MOTOR CO. IN THE SUM OF $488.26 EACH OR THE NEXT LOWEST BID OF THE CHEVROLET MOTOR CO. IN THE SUM OF $551.35 EACH.

THE REQUIREMENT OF SECTION 3709, REVISED STATUTES, IS THAT PUBLIC CONTRACTS MUST BE ADVERTISED ON THE BASIS OF SPECIFICATIONS STATING THE NEEDS OF THE GOVERNMENT IN SUCH TERMS AS TO PERMIT OF FULL AND FREE COMPETITION BY ALL QUALIFIED BIDDERS AND THAT APPROPRIATED MONEYS MAY NOT BE USED TO MAKE PAYMENT IN EXCESS OF THE LOWEST RESPONSIBLE BID PROPOSING TO MAKE DELIVERY IN ACCORDANCE WITH SUCH SPECIFICATIONS. THE DOUBT--- IN AN OTHERWISE CLEAR CASE--- WHETHER THERE SHOULD BE ACCEPTED THE BID SUBMITTED BY THE NORTHWEST MOTOR CO. IN THE SUM OF $488.26 EACH FOR THE TWO TRUCKS HAS ARISEN BECAUSE OF THE TERMS OF EXECUTIVE ORDER NO. 6646, DATED MARCH 14, 1934, AND A MIMEOGRAPHED LETTER OF APRIL 6, 1934, FROM THE NORTHWEST MOTOR CO. WHICH ACCOMPANIED ITS BID AS FOLLOWS:

THERE WILL BE NO SUBCONTRACTORS IN CONNECTION WITH ANY CONTRACT BIDDER MAY ENGAGE IN UNDER THIS BID, AND NO MANUFACTURER WILL IN ANY WISE BE A PARTY TO ANY SUCH CONTRACT. THE BIDDER IS SUBMITTING THIS BID ENTIRELY UPON ITS OWN RESPONSIBILITY AND NOTHING CONTAINED HEREIN, OR IN THE BID FILED HEREWITH, OR THE ALTERNATE BID FILED HEREWITH, IS IN ANY MANNER OR DEGREE BINDING ON THE FORD MOTOR COMPANY, A DELAWARE CORPORATION. THE NORTHWEST MOTOR COMPANY HAS NO AUTHORITY, EXPRESSED, INFERRED OR IMPLIED, TO ACT FOR OR BIND THE FORD MOTOR COMPANY.

THE BIDDER IS A MEMBER OF THE N.R.A., HAS COMPLIED, IS COMPLYING, AND WILL CONTINUE TO COMPLY WITH ALL ITS LAWFUL PROVISIONS. IT CAN MAKE NO REPRESENTATIONS RESPECTING ANY OF THE VARIOUS MANUFACTURERS WHO HAVE ANY PART IN THE MANUFACTURE OF MATERIALS AND EQUIPMENT OFFERED IN THIS BID, AND CANNOT BIND ITSELF THAT ALL OF SUCH MANUFACTURERS ARE COMPLYING. BIDDER HAS NO MEANS OF KNOWING WHETHER OR NOT THEY ARE, AND SUCH A REQUIREMENT WOULD BE UNFAIR AND UNJUST. THE LAW HAS MEANS OF ENFORCEMENT AND BIDDER CANNOT CONTRACT WITH THE GOVERNMENT TO SEE THAT THE LAW IS ENFORCED; IT CAN MAKE ASSURANCES ONLY INSOFAR AS THEY RELATE TO BIDDER, AND SUCH CERTIFICATE AS BIDDER EXECUTES WILL RELATE ONLY TO BIDDER.

IN VIEW OF EXECUTIVE ORDER 6646, DATED MARCH 14, 1934, BIDDER HAS SUBMITTED ITS BID. IN CONNECTION WITH SAID EXECUTIVE ORDER BIDDER FEELS IT IS SUBJECT TO THE FOLLOWING INTERPRETATION, AND IF, AND ONLY IF, SUCH INTERPRETATION IS CONFIRMED BY COMPETENT AUTHORITY, THEN BIDDER SUBMITS THE FOLLOWING INTERPRETATION:

1. THAT BIDDER IS REQUIRED TO SUBMIT CERTIFICATE OF COMPLIANCE ONLY INSOFAR AS IT RELATES TO BIDDER.

2. THAT REQUIREMENT THAT BIDDER FURNISH CERTIFICATE ON THE PART OF THE 5,000 OR MORE MANUFACTURERS WHOSE PRODUCTS GO TO MAKE THE COMPONENT PARTS THAT CONSTITUTE A MOTOR VEHICLE OF THE TYPE BIDDER PROPOSES TO FURNISH UNDER THIS BID IS IMPRACTICAL, UNFAIR, UNJUST, AND AGAINST THE INTERESTS OF THE GOVERNMENT AND ALL QUALIFIED BIDDERS, AND IS REPUGNANT TO THE STATUTES GOVERNING GOVERNMENT PURCHASES, AND, THEREFORE, IS NOT A LAWFUL REQUIREMENT.

3. BIDDER RECOGNIZES AS CONTROLLING RULINGS OF THE COMPTROLLER GENERAL OF THE UNITED STATES THAT GENERAL LANGUAGE IN A CODE RESPECTING DISCOUNTS DOES NOT APPLY TO THE GOVERNMENT AND, THEREFORE, IN QUOTING THE GOVERNMENT, BIDDERS MAY QUOTE LESS THAN FULL LIST PRICE WITHOUT VIOLATING THE CODE OF FAIR COMPETITION FOR THE MOTOR VEHICLE RETAILING TRADE. THIS INTERPRETATION OF BIDDER IS NOT ACCEPTED BY COMPETENT AUTHORITY,THEN BIDDER PROTESTS THE CONSIDERATION OF ANY BID RECEIVED FROM ANY BIDDER QUOTING LESS THAN LIST PRICE. ARTICLE IV B OF CODE OF FAIR COMPETITION FOR THE MOTOR VEHICLE RETAILING TRADE STATES "NO DEALER SHALL SELL A NEW CAR AT RETAIL TO A CONSUMER FOR LESS THAN FACTORY LIST PRICE * * *; " THEREFORE, ANY SALE TO THE GOVERNMENT, A CONSUMER, IS A RETAIL SALE AND ALL BIDS AT LESS THAN LIST PRICE WOULD BE IN VIOLATION. ANY SELLER TO THE GOVERNMENT--- WHETHER HE BE MANUFACTURER OR OTHERWISE--- IS ENGAGED IN RETAILING WHEN HE SELLS TO THE GOVERNMENT, AND, THEREFORE, IS SUBJECT TO THE PROVISIONS OF THE CODE.

BIDDER TAKES THE FURTHER POSITION THAT THERE BEING NOTHING IN THE NATIONAL INDUSTRIAL RECOVERY ACT MAKING CODES OF FAIR COMPETITION UNDER SUCH ACT APPLICABLE TO THE FEDERAL GOVERNMENT, THERE IS NO AUTHORITY CONTAINED IN SAID ACT TO MAKE SUCH CODES APPLICABLE, EITHER BY INFERENCE OR BY EXECUTIVE ACTION. ANY ATTEMPT TO DO SO WOULD BE AN INVASION BY THE EXECUTIVE OF THE LEGISLATIVE BRANCH OF THE GOVERNMENT, AND, THEREFORE, WOULD BE VOID. TO ASSUME THAT CODES PROMULGATED UNDER THE ACT ARE APPLICABLE TO THE FEDERAL GOVERNMENT WOULD RESULT IN THE CREATION OF TWO CLASSES OF BIDDERS ON AUTOMOTIVE EQUIPMENT DESIRED BY THE GOVERNMENT, AS MANUFACTURERS WOULD ATTEMPT TO BID UNDER ONE CODE AND THE DEALERS WOULD ATTEMPT TO BID UNDER ANOTHER. THIS WOULD GIVE THE MANUFACTURERS AN UNFAIR ADVANTAGE, CONTRARY TO THE PRINCIPLES SET FORTH IN SECTION 3 OF THE ACT, AND ALSO CONTRARY TO PUBLIC POLICY. SUCH AN ATTEMPT TO MAKE THESE CODES APPLICABLE TO THE FEDERAL GOVERNMENT WOULD LEAD TO THE INEVITABLE CONCLUSION THAT NO BIDDER, MANUFACTURER, OR DEALER COULD OFFER AUTOMOTIVE EQUIPMENT TO THE GOVERNMENT AT LESS THAN LIST PRICE. ANY ATTEMPT BY EXECUTIVE ACTION TO RESTRICT FAIR AND OPEN COMPETITION IN THE BIDDING ON GOVERNMENT PURCHASES IS REPUGNANT TO THE STATUTES COVERING GOVERNMENT PURCHASES AND IS VOID. FURTHER, ANY ATTEMPT TO SET UP ANY AGENCY FOR THE PURPOSE OF DETERMINING WHETHER OR NOT ANY BIDDER IS COMPLYING WITH THE LAW, OR ANY CODE THAT HAS THE FORCE OF LAW, IS AN INVASION OF THE JUDICIARY AND CONTRARY TO THE ACT, AND, THEREFORE, IS VOID.

DELIVERY WILL BE MADE IN ACCORDANCE WITH THE SCHEDULE FILED WITH THIS BID, UNLESS DELAYED FOR UNFORSEEABLE CAUSES BEYOND THE CONTROL OF THE MANUFACTURERS OF THE PARTS, EQUIPMENT, AND VEHICLES OFFERED IN THIS BID, AND WITHOUT THEIR FAULT, AND NEGLIGENCE, INCLUDING, BUT NOT RESTRICTED TO, ACTS OF GOD OR THE PUBLIC ENEMY, ACTS OF THE GOVERNMENT, FIRES, FLOODS, EPIDEMICS, QUARANTINE RESTRICTIONS, STRIKES, AND FREIGHT EMBARGOES, WHICH AFFECT THE MANUFACTURERS OR ANY OF THEIR SUPPLIERS OF PARTS, MATERIALS, OR LABOR FOR THEIR PARTS, VEHICLES, OR EQUIPMENT PROPOSED IN THIS BID, AND BIDDER SUBJECTS ITSELF TO NO PENALTIES FOR DELAYS OCCASIONED BY ANY OF THE FOREGOING.

BIDDER IN ITS AFFIDAVIT TO DISBURSING OFFICER WILL AVER THAT ALL SUPPLIES FURNISHED UNDER SUCH CONTRACT HAVE, TO THE BEST OF ITS KNOWLEDGE, INFORMATION, AND BELIEF, BEEN PRODUCED IN STRICT COMPLIANCE WITH SUCH CODE OR AGREEMENT, AS THE CASE MAY BE, AND PAYMENT SHALL BE MADE UPON SUCH AVERMENT.

THE ACT OF JUNE 16, 1933, 48 STAT. 195, 200, OTHERWISE KNOWN AS THE NATIONAL INDUSTRIAL RECOVERY ACT, IN ITS RELATION TO PURCHASE OF MOTOR VEHICLES ON BEHALF OF THE UNITED STATES HAS BEEN HERETOFORE CONSIDERED BY THIS OFFICE IN DECISIONS OF NOVEMBER 10, 1933, AND NOVEMBER 29, 1933, 13 COMP. GEN. 127, 132 AND 159, RESPECTIVELY, AND THERE HAVE BEEN QUOTED IN SAID DECISIONS THE APPLICABLE TERMS OF THE ACT OF JUNE 16, 1933. IT IS NOT NECESSARY TO REQUOTE SUCH TERMS, BUT PARTICULAR ATTENTION MAY BE INVITED TO SECTION 1 OF SAID ACT WHEREIN IT WAS DECLARED THAT A ,NATIONAL EMERGENCY PRODUCTIVE OF WIDESPREAD UNEMPLOYMENT AND DISORGANIZATION OF INDUSTRY, WHICH BURDENS INTERSTATE AND FOREIGN COMMERCE, AFFECTS THE PUBLIC WELFARE AND UNDERMINES THE STANDARDS OF LIVING OF THE AMERICAN PEOPLE, IS HEREBY DECLARED TO EXIST; " TO SECTIONS 3 AND 4 OF SAID ACT WHEREIN THE PRESIDENT WAS RESPECTIVELY AUTHORIZED TO APPROVE CODES OF FAIR COMPETITION FOR TRADES, INDUSTRIES, OR SUBDIVISIONS THEREOF, AND TO ENTER INTO REEMPLOYMENT AGREEMENTS WITH PERSONS, ETC., ENGAGED IN TRADE OR INDUSTRY; AND TO SECTION 10 OF THE ACT WHEREIN THE PRESIDENT WAS AUTHORIZED TO PRESCRIBE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSE OF THE TLE," AS TO SUCH CODES AND REEMPLOYMENT AGREEMENTS DESIGNED TO AMELIORATE THE "NATIONAL EMERGENCY PRODUCTIVE OF WIDESPREAD UNEMPLOYMENT AND DISORGANIZATION OF INDUSTRY.'

THE CODES OF FAIR COMPETITION FOR BOTH THE MOTOR VEHICLE MANUFACTURING INDUSTRY AND FOR THE MOTOR VEHICLE RETAILING TRADE HAVE NOW BEEN APPROVED BY THE PRESIDENT AND THE TERMS OF THE REEMPLOYMENT AGREEMENT ARE NOT APPLICABLE HERE. THERE WAS ISSUED AUGUST 10, 1933, AN EXECUTIVE ORDER WHICH IS QUOTED IN PERTINENT PART IN 13 COMP. GEN. 65, 67, AND CONSIDERED IN THE ABOVE REFERRED TO DECISIONS IN 13 COMP. GEN. 127, 132, AND 159, AS REQUIRING COMPLIANCE OF GOVERNMENT CONTRACTORS WITH--- BUT NOT AFFIRMATIVE TO--- CODES OF FAIR COMPETITION IN THE PERFORMANCE OF CONTRACTS WITH THE UNITED STATES. HOWEVER, SUBSEQUENT TO SAID DECISION, THERE WAS ISSUED EXECUTIVE ORDER 6646, DATED MARCH 14, 1934, WHICH PROVIDES THAT:

1. (A) ALL INVITATIONS TO BIDDERS HEREAFTER PROMULGATED BY OR IN BEHALF OF ANY EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT OR OTHER AGENCY OR INSTRUMENTALITY OF THE UNITED STATES, INCLUDING GOVERNMENT-OWNED AND GOVERNMENT-CONTROLLED CORPORATIONS (ALL OF THE FOREGOING BEING HEREINAFTER DESCRIBED AS AGENCIES OF THE UNITED STATES), SHALL CONTAIN A PROVISION TO THE EFFECT THAT NO BID WILL BE CONSIDERED UNLESS IT INCLUDES OR IS ACCOMPANIED BY A CERTIFICATE DULY EXECUTED BY THE BIDDER STATING THAT THE BIDDER IS COMPLYING WITH AND WILL CONTINUE TO COMPLY WITH EACH APPROVED CODE OF FAIR COMPETITION TO WHICH HE IS SUBJECT, AND IF ENGAGED IN ANY TRADE OR INDUSTRY FOR WHICH THERE IS NO APPROVED CODE OF FAIR COMPETITION, THEN STATING THAT AS TO SUCH TRADE OR INDUSTRY HE HAS BECOME A PARTY TO AND IS COMPLYING WITH AND WILL CONTINUE TO COMPLY WITH AN AGREEMENT WITH THE PRESIDENT UNDER SECTION 4 (A) OF THE NATIONAL INDUSTRIAL RECOVERY ACT.

(B) NO BID WHICH DOES NOT COMPLY WITH THE FOREGOING REQUIREMENTS SHALL BE CONSIDERED OR ACCEPTED.

(C) ALL CONTRACTS AND PURCHASE ORDERS AUTHORIZED BY ANY AGENCY OF THE UNITED STATES SHALL CONTAIN A PROVISION TO THE EFFECT THAT THE PARTY OR PARTIES AWARDED ANY SUCH CONTRACT OR PURCHASE ORDER SHALL COMPLY WITH EACH APPROVED CODE OF FAIR COMPETITION TO WHICH IT IS SUBJECT AND IF ENGAGED IN ANY TRADE OR INDUSTRY FOR WHICH THERE IS NO APPROVED CODE OF FAIR COMPETITION, THEN, AS TO SUCH TRADE OR INDUSTRY, WITH AN AGREEMENT WITH THE PRESIDENT AS AFORESAID; AND THAT THE UNITED STATES SHALL HAVE THE RIGHT TO CANCEL ANY CONTRACT FOR FAILURE TO COMPLY WITH SUCH PROVISION AND MAKE OPEN MARKET PURCHASES OR HAVE THE WORK CALLED FOR BY THE CONTRACT OTHERWISE PERFORMED, AT THE EXPENSE OF THE CONTRACTOR.

(D) NO AGENCY OF THE UNITED STATES AND NO GOVERNMENT CONTRACTOR OR SUPPLIER SHALL HEREAFTER ACCEPT OR PURCHASE FOR THE PERFORMANCE OF ANY CONTRACT OR PURCHASE ORDER OR ENTER INTO ANY SUBCONTRACTS FOR ANY ARTICLES, MATERIALS, OR SUPPLIES, IN WHOLE OR IN PART PRODUCED OR FURNISHED BY ANY PERSON WHO SHALL NOT HAVE CERTIFIED THAT HE IS COMPLYING WITH AND WILL CONTINUE TO COMPLY WITH EACH CODE OF FAIR COMPETITION WHICH RELATES TO SUCH ARTICLES, MATERIALS, OR SUPPLIES, OR IN CASE THERE IS NO APPROVED CODE FOR THE WHOLE OR ANY PORTION THEREOF, THEN, TO THAT EXTENT, WITH AN AGREEMENT WITH THE PRESIDENT AS AFORESAID.

(E) THE FOREGOING PROVISIONS OF THIS ORDER SHALL LIKEWISE APPLY TO ALL CONTRACTS AND PURCHASE ORDERS AUTHORIZED BY ANY STATE, MUNICIPAL CORPORATION, LOCAL SUBDIVISION, PERSON, OR CORPORATION IN CONNECTION WITH PROJECTS CARRIED OUT OR TO BE CARRIED OUT, WHOLLY OR IN PART, WITH FUNDS LOANED OR GRANTED BY ANY AGENCY OF THE UNITED STATES, AND ALL CONTRACTS AND AGREEMENTS FOR THE MAKING OF ANY SUCH LOAN OR GRANT SHALL CONTAIN A PROVISION REQUIRING THE STATE, MUNICIPAL CORPORATION, LOCAL SUBDIVISION, PERSON, OR CORPORATION RECEIVING SUCH LOAN OR GRANT, TO COMPLY WITH THE PROVISIONS OF THIS ORDER; PROVIDED THAT THIS PARAGRAPH SHALL NOT BE CONSTRUED AS REQUIRING THE RESTRICTION OF THE USE OF MATERIALS TO THOSE PRODUCED WITHIN THE UNITED STATES NOR TO REQUIRE PRICE DIFFERENTIALS IN FAVOR OF SUCH MATERIALS. 2. ANY PERSON FALSELY CERTIFYING AS TO COMPLIANCE AS AFORESAID WHO SUBMITS ANY SUCH PROPOSAL, BID, CONTRACT, OR SUBCONTRACT, OR ACCEPTS ANY PURCHASE ORDER, MAY BE PUNISHED AS PROVIDED IN SECTION 10 (A) OF THE NATIONAL INDUSTRIAL RECOVERY ACT, BY A FINE OF NOT TO EXCEED FIVE HUNDRED DOLLARS ($500) OR IMPRISONMENT NOT TO EXCEED 6 MONTHS, OR BOTH, AND IN EVENT OF ANY SUCH FALSE CERTIFICATION BY ANY SUCH PERSON, ANY CONTRACT, SUBCONTRACT, OR PURCHASE ORDER TO WHICH HE IS PARTY SECURED BY OR IN FURTHERANCE OF ANY SUCH PROPOSAL OR BID MAY BE CANCELED BY THE OTHER PARTY THERETO, AND THE UNFINISHED PORTION THEREOF COMPLETED AT THE EXPENSE OF THE PERSON GUILTY OF SUCH FALSE CERTIFICATION AND HIS SURETIES, IF ANY.

3. WHENEVER A DISPUTE SHALL ARISE BETWEEN ANY AGENCY OF THE UNITED STATES AND ANY BIDDER, CONTRACTOR, SUPPLIER, OR OTHER PERSON AS TO COMPLIANCE WITH ANY CODE OF FAIR COMPETITION OR WITH AN AGREEMENT WITH THE PRESIDENT AS AFORESAID IN CONNECTION WITH ANY PROPOSAL, BID, CONTRACT, SUBCONTRACT, OR PURCHASE ORDER MENTIONED HEREIN, THE ADMINISTRATOR FOR INDUSTRIAL RECOVERY, OR SUCH AGENCY AS HE SHALL DESIGNATE, SHALL DECIDE SUCH DISPUTE AND, FOR THE PURPOSES OF ACTION UNDER THIS EXECUTIVE ORDER, SUCH DECISION SHALL BE FINAL AND CONCLUSIVE; BUT THE DETERMINATION OF SUCH AGENCY OF THE UNITED STATES SHALL BE EFFECTIVE FOR ALL PURPOSES PENDING SUCH DECISION.

4. ALL PROVISIONS OF APPROVED CODES OF FAIR COMPETITION SHALL APPLY TO THE MAKING AND PERFORMANCE OF CONTRACTS WITH OR SALES TO AGENCIES OF THE UNITED STATES.

5. THE ADMINISTRATOR FOR INDUSTRIAL RECOVERY MAY MAKE EXCEPTIONS IN SPECIFIC CASES OR OTHERWISE UNDER THIS ORDER WHENEVER SUCH ACTION SHALL BE RECOMMENDED TO HIM BY AN AGENCY OF THE UNITED STATES AND WHEN IN THE JUDGMENT OF THE ADMINISTRATOR JUSTICE OR PUBLIC INTEREST WILL BE SERVED THEREBY.

6. ANY PROVISIONS OF EXECUTIVE ORDER NO. 6246, SIGNED AUGUST 10, 1933, OR ANY OTHER EXECUTIVE ORDER, AND ANY RULE OR REGULATION IN CONFLICT THEREWITH ARE HEREBY TO THAT EXTENT MODIFIED AND RESCINDED.

UNDER THIS EXECUTIVE ORDER, ISSUED, PRESUMABLY, PURSUANT TO THE AUTHORITY CONFERRED ON THE PRESIDENT BY SECTION 10 OF THE ACT OF JUNE 16, 1933, AS AN AID IN CARRYING OUT THE PURPOSES OF THE NATIONAL INDUSTRIAL RECOVERY ACT, IT IS REQUIRED THAT ALL BIDS TO BE CONSIDERED OR ACCEPTED MUST BE ACCOMPANIED BY A CERTIFICATE OF THE BIDDER THAT HE IS COMPLYING WITH AND WILL CONTINUE TO COMPLY WITH EACH APPROVED CODE OF FAIR COMPETITION TO WHICH HE IS SUBJECT, WHERE THERE IS SUCH AN APPROVED CODE AS HERE; THAT THE CONTRACT ENTERED INTO AS A RESULT OF THE ACCEPTANCE OF SUCH A BID ACCOMPANIED BY THE REQUIRED CERTIFICATE SHALL CONTAIN A PROVISION THAT THE CONTRACTOR, IN THE PERFORMANCE OF THE CONTRACT, SHALL COMPLY WITH EACH SUCH APPROVED CODE OF FAIR COMPETITION TO WHICH HE IS SUBJECT; AND THAT NO GOVERNMENT CONTRACTOR OR SUPPLIER SHALL ACCEPT OR PURCHASE FOR THE PERFORMANCE OF ANY SUCH CONTRACT OR PURCHASE ORDER, OR ENTER INTO ANY SUBCONTRACT FOR ANY ARTICLES, MATERIALS, OR SUPPLIES, IN WHOLE OR IN PART, PRODUCED OR FURNISHED BY ANY PERSON WHO SHALL NOT HAVE CERTIFIED THAT HE IS COMPLYING WITH AND WILL CONTINUE TO COMPLY WITH EACH APPROVED CODE OF FAIR COMPETITION WHICH RELATES TO SUCH ARTICLES, MATERIALS, OR SUPPLIES. THAT IS TO SAY, IT IS NOT ENOUGH, UNDER THE EXECUTIVE ORDER OF MARCH 14, 1934, THAT THE CONTRACTOR FURNISH A CERTIFICATE WITH HIS BID THAT HE IS COMPLYING WITH AND WILL CONTINUE TO COMPLY WITH THE APPLICABLE APPROVED CODE OF FAIR COMPETITION, OR IF NO CODE, THAT HE HAS SIGNED AND HAS COMPLIED WITH AND WILL CONTINUE TO COMPLY WITH THE PRESIDENT'S REEMPLOYMENT AGREEMENT, AND AGREES IN THE CONTRACT TO CONTINUE COMPLIANCE THEREWITH, BUT HE MAY NOT MAKE DELIVERY UNDER THE CONTRACT OF ANY ARTICLES, MATERIALS, OR SUPPLIES, IN WHOLE OR IN PART PRODUCED OR FURNISHED BY ANY PERSON WHO SHALL NOT HAVE CERTIFIED THAT HE IS COMPLYING WITH AND WILL CONTINUE TO COMPLY WITH EACH CODE OF FAIR COMPETITION WHICH RELATES TO SUCH ARTICLES, MATERIALS, OR SUPPLIES, OR, IF NO CODE, THEN THAT HE HAS SIGNED AND HAS COMPLIED WITH THE PRESIDENT'S REEMPLOYMENT AGREEMENT.

THE ADVERTISED SPECIFICATIONS OF MARCH 30, 1934, FOR BIDS TO BE OPENED APRIL 10, 1934, FOR THE DELIVERY OF THE TWO TRUCKS CONTAINED, AMONG OTHER THINGS, A REQUIREMENT AS TO CERTIFICATE OF COMPLIANCE WITH THE CODES OF FAIR COMPETITION AND THE TERMS OF THE EXECUTIVE ORDER NO. 6646, DATED MARCH 14, 1934. THE SAID CERTIFICATE OF COMPLIANCE AS EXECUTED BY THE NORTHWEST MOTOR CO. IS AS FOLLOWS:

IT IS HEREBY CERTIFIED THAT THE UNDERSIGNED IS COMPLYING WITH AND WILL CONTINUE TO COMPLY WITH EACH APPROVED CODE OF FAIR COMPETITION TO WHICH HE IS SUBJECT, AND/OR IF ENGAGED IN ANY TRADE OR INDUSTRY FOR WHICH THERE IS NO APPROVED CODE OF FAIR COMPETITION, THEN AS TO SUCH TRADE OR INDUSTRY THAT HE HAS BECOME A PARTY TO AND IS COMPLYING WITH AND WILL CONTINUE TO COMPLY WITH AN AGREEMENT WITH THE PRESIDENT UNDER SECTION 4 (A) OF THE NATIONAL INDUSTRIAL RECOVERY ACT (PRESIDENT'S REEMPLOYMENT AGREEMENT) AND THAT ALL OTHER CONDITIONS AND REQUIREMENTS OF EXECUTIVE ORDER NO. 6646, DATED MARCH 14, 1934, ARE BEING AND WILL BE COMPLIED WITH.

PROVIDED, THAT WHERE SUPPLIES ARE PURCHASED THAT ARE NOT MINED, PRODUCED, OR MANUFACTURED IN THE UNITED STATES (SEE SEC. 2 TITLE III, OF THE ACT APPROVED MARCH 3, 1933, PUBLIC, NO. 428 72D CONG), THE SPECIAL OR GENERAL CODE OF FAIR PRACTICE SHALL APPLY TO THAT PORTION OF THE CONTRACT EXECUTED WITHIN THE UNITED STATES. EXCEPT TIRES OF IMPORTED RAW MATERIALS MANUFACTURED IN THE U.S.

APRIL 6, 1934

(DATE)

THE NORTHWEST MOTOR COMPANY,

(INDIVIDUAL OR FIRM NAME)

SUBJECT TO AND AMENDED BY THE ATTACHED LETTER.

(SIGNED) R. P. SABINE,

PRESIDENT.

AS STATED, THE CERTIFICATE WAS EXECUTED "SUBJECT TO AND AMENDED BY THE ATTACHED LETTER" OF APRIL 6, 1934, HEREINBEFORE QUOTED, AND IT IS OBVIOUS THAT THE BID SO SUBMITTED IS NOT RESPONSIVE TO THE ADVERTISED SPECIFICATIONS IN THAT THE CERTIFICATE AS SO QUALIFIED PROPOSES TO DISREGARD THE REQUIREMENTS OF SUBSECTION (D) OF SECTION 1 OF THE EXECUTIVE ORDER BY SUBMITTING IN LIEU OF THE CERTIFICATES BY SAID SUBSECTION REQUIRED, THE BIDDER'S AFFIDAVIT BASED UPON INFORMATION AND BELIEF.

ACCORDINGLY, YOU ARE ADVISED THAT THE PROPOSAL SUBMITTED BY THE NORTHWEST MOTOR CO. IS NOT FOR CONSIDERATION.



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