Evening star., 1934-07-08
M'CARL'S RULING
DEFENDS FOULO|S
Decision Bobs Up to Contra
dict Law Violation in
Plane Buying.
BY REX COLLIER.

| olUllhl Cllhl BCo tilqt huJ. OClls oClyd-
min D. Foulois 'willfuly and deliber-
stely' violated the law governing air
plane purchases.
Gen Foulois is said to be in pos
session of copy Of the opinion. which
held, in effect, that the War and Navy
Departments had been clothed with
special authority by law to award air
plane contracts without competitive
| bidding.
While contrary opinions by the
judge advocate general Of the Army
| we're cited in the report of the House
Military Affairs Subcommittee con-
demning Gen. Foulois, it was pointed
out that McCarl Is the supreme au-
| thority' in interpreting acts of Con-
gress and that his rulings must SUPER
sede all others.
McCarls opinion was expressed in
| letter to the chairman of the House
Committee on Expenditures In the
executive departments, under date of
| February IL, 1929, in response to a
request from the then chairman,
Former Representative William Will
hanson of South Dakota, for an ex-
animation of certain airplane con-
tracts contemplated by the Secretary
Of the Navy.
Exception Is Mentioned.
After. reviewing sections of the act
Of July 2, 1925, pertaining to airplane
procurement, the controller general
advised williamson that provisions of
the act make such purchases as
therein are provided for an exception
to the provisions Of section 37o9, Re
vised Statutes, which requires compe-
tition in the purchase of all supplies
for the United States except in case
of emergency"
THE act, SUPRA" McCarl wrote
| places certain discretion in the Sec
retary Of the Navy and would appear
to contemplate the exercise Of per-
sonal judgment on his part in the
making of such contracts.
1T is to be noted with respect to
paragraph (D, supra, that the deci-
sion of the Secretary Of the Navy
with reference to the award of the
provisions Of the contract and the
application and administration of
| the provisions Of the contract are not
renewable
This provision. as well as other
| provisions of the act, make such
| purchases as therein are provided for
an exception to the provisions of
section 3709, Revised Statutes, which
requires competition in the purchase
of all supplies for the United States
| except in case of emergency, and
also, is an innovation in that it ap-
parently vests in the contracting
oficer the sole and final jurisdiction
to interpret the contract.
Decision Is Administrative.
ut would seem reasonable to as
sumo that all the manufacturers Of
aircraft, etc, in the United States
are interested in the development
and furnishing Of such equipment to
the Government, and there is no
reason why they should not be given
| an opportunity to submit bids rather
than leaving to the discretion Of the
administrative head whether or not
bids should be asked. .-.t-
However. under the present pro-
cedure, the determination as to
whether or not they are to be al
| lowed to submit bids is entirely
within the discretion Of the admin
iStrative head"
While McCarl referred specifically
| to the Secretary of the Navy because
the contracts in question were naval
ones, he cited pertinent provisions of
the 1926 act including the much
discussed section K, which reads:
The Secretary of War or the
! Secretary of the Navy may. at his
discretion. purchase abroad or in the
/ United States, with or without COM
petition, by contract or otherwise, such
| designs, aircraft, aircraft parts or aero
| nautical accessories as may be neceS-
sary in his judgment for experimental
purposes in the development of air.
craft or aircraft parts or aeronautical
accessories Of the best kind for the
/ Army or the Navy, as the case may
be, and If as a result Of such procure
ment new and suitable designs con-
sidered to be the best kind for the
Army or the Navy are developed, he
may enter into contract. subject to
the requirements Of paragraph (D OF
this section (requiring contractors to
curement in quantity Of such aircraft,
aircraft parts or aeronautical acces-
sories, without regard to the pro-
Jisions of paragraphs (a) to (e), in
elusive hereof"
Quotes Further Provision.
He also quoted paragraph (D, as
follows:
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 air.
craft, aircraft parts or aeronautical
accessories, said Secretary hereby is
authorized to award such contract to
find to be the lowest responsible
bidder that can satisfactorily perform
the work or the service required to
the best advantage of the Govern
ment, and the decision of the Secre-
tary of the department concerned as
to the award Of such contract, and
the Interpretation of the provisions
of the contract, and the application
and administration of the contract
shall not be renewable, otherwise
than as may be herein provided for, |
by any officer or tribunal of the
United States except the President |
and the Federal courts"
The act of 1925 was adopted at the
instance of aviation officials and
friends of aviation in the hope of
building up In this country the
finest air corps in the world" Army
and Navy air officials claimed they
were being hindered in aviation de-
velopment by the insistence Of Con-
troller General McCarl that the letter
Of the law requiring competitive bid
ding be adhered to in every instance.
Aviation officers complained that the
low bidders invariably were manu-
featuring inferior planes and they
asked Congress to give them special
authority to buy the best planes
available, without regard to competi-
tive bidding.
McCarI Opposed Act