A procedure by which the Indian Office would invite proposals from all manufacturers or dealers in typewriters and adding machines, and enter into a contract with each such manufacturer or dealer who executed a proposal would result in a unilateral contract and not be a compliance with section 3709, Revised Statutes, and section 23 of the act of June 25, 1910. (36 Stat., 861.)

Comptroller Downey to the Secretary of the Interior, July 25, 1914:

I have your request of July 21, 1914, for decision as follows:

"I have the honor to invite attention to the attached form of contract which is intended to be used in connection with the purchase of typewriters and adding machines for the use of the Indian Service, together with the form of proposal on which bids are to be invited for the different kinds of machines above referred to.

"If it can be legally done under the provisions of sections 3709, R. S., et seq., the Indian Service proposes to make contracts with the various typewriter and adding-machine concerns covering the purchase of these articles throughout the entire ensuing fiscal year at the rates which are to be shown on an accompanying schedule, and which are to be obtained after due advertising on the proposal bĺanks attached and by publication on a bulletin board.

"It is not the intention to specify a certain number of typewriters or adding machines, as the Indian Service is not in a position to say at present how many machines of each make may be bought during the fiscal year referred to.

"The advantage of being able to purchase any one of the various makes of typewriters and adding machines becomes apparent when it is taken into consideration that for certain purposes a very light machine is necessary, such as for use of supervisors and other officials who are traveling constantly, while in other cases a medium weight machine may be used to advantage, as in the cases of persons whose work requires them to move within a limited territory.

"In other cases the heavier grades of machines may be used to better advantage, as they are only intended to be used at one particular point in the service.

"It must be taken into consideration also that at times the scarcity of funds applicable makes it impracticable to purchase the more expensive kinds of typewriters. It is therefore impracticable to standardize on one particular make of machine or one particular style, as in the case of typewriters both long and short carriage machines are constantly in use.

"It will be noted that there is a provision in the contract whereby cach company is to notify the office of any reduction in rate, so that the schedule may be amended accordingly and the lower price taken advantage of in placing subsequent order. It is believed that such an arrangement would be wholly to the advantage of the Government, and that by making such contracts after due advertising the provisions of section 3709 would be fully complied with, and it would not be necessary to advertise for proposals prior to each particular purchase or take the other alternative of considering each particular purchase as one of a patented article which would exclusively answer the purpose of the particular superintendency for which it is intended.

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"It is respectfully suggested that inasmuch as these forms are intended to be used in connection with the expenditure of Government funds by the Indian Service they are a proper subject for consideration by your office, and it is further suggested that you give this department the benefit of your views with regard to the legality of this method of procedure as soon as practicable."

Section 5 of the act of July 31, 1894 (28 Stat., 206), provides that

"The Comptroller of the Treasury shall, under the direction of the Secretary of the Treasury, prescribe the forms of keeping and rendering all public accounts, except those relating to the postal revenues and expenditures therefrom."

The forms of the proposal and contract submitted are not forms of keeping and rendering public accounts relating to the Indian Service, and therefore I have no jurisdiction to consider them with a view to altering or approving them. Their appropriateness and correctness is a matter for consideration by the proper administrative officials. (14 Comp. Dec., 1.)

But as to the legality of purchasing typewriters and adding machines for the Indian Service in the manner above indicated, you are advised that section 23 of the act of June 25, 1910 (36 Stat., 861), provides that hereafter the purchase of Indian supplies shall be made in conformity with the requirements of section 3709, Revised Statutes of the United States. The provisions of this section relate solely to advertising and do not prescribe the form of agreement. Under the accepted construction of its provisions and those of the act of June 25, 1910, Indian supplies must be procured by advertising for proposals, except where the public exigency requires immediate delivery and will not admit of the delay incident to advertising. (17 Comp. Dec., 114; id., 124; 20 id., 250; id., 582.)

From a reading of your letter and the accompanying papers it seems clear that it is intended the Indian Office shall invite proposals from all manufacturers or dealers in typewriters and adding machines and, having received proposals, to enter into a contract with each such manufacturer or dealer. The purpose evidently is to have a contract for each make of these machines so that the Indian Office may order any one that may be desired at any time during the year. The form of contract clearly indicates that it is not the intention that the Indian Office shall bind itself to buy any particular number of the machines covered by any contract or to buy the number of such machines that may be needed in the service during the fiscal year. A contract of this kind would be unilateral, and there can be no doubt that the making of a series of such contracts would not be a compliance with section 3709 of the Revised Statutes. It would be a compliance with that section only in form and not a compliance with its substance and purpose.

A procedure which would result in leaving in the Government an option to purchase from any bidder would be far different from a purchase from a successful bidder under a competitive contract and would be entirely devoid of the essence of the procedure contemplated by section 3709. Advertising for proposals certainly contemplates the acceptance of a proposal as the basis of a contract and not the optional acceptance of all proposals.

It seems also to be the purpose of this form of contract that, after getting the price proposed by the contractor and accepted, the Government shall have the right to a lower price than is stated in the contract, provided the contractor "decides to charge a lower rate for typewriters than that given in the attached schedule during the period covered by this contract." (Art. 5.) This provision, if a contractor should be willing to incorporate it in a contract, is ambiguous, to say the least.

It is also stipulated and agreed in article 9 “that the price quoted by the party of the second part in the schedule hereto attached shall not be in excess of the lowest price paid by the Government of the United States for the same make and model of machine during the period of the fiscal years 1913 and 1914." The schedule referred to is the one that would be submitted with the proposal of the bidder and it is difficult to understand why the contract should or could provide as to the nature of the contents of a schedule already submitted rather than to determine the fact, before the contract is made, that the price does not exceed the lowest price referred to.

The most that can be said for contracts containing such provisions as those quoted from articles 5 and 9 is that they give an option, unsupported by any consideration, for the Indian Office to purchase, during the fiscal year 1915, any machine it may wish at the lowest price the Government paid in 1913 or 1914 or that the Government or any person may pay in 1915.

Without authority to prescribe the forms of contracts to be made by your department, but in answer to your request for my views with regard to the legality of the proposed method of procedure, I will say that it would not be a compliance with section 3709. That section does not provide in terms for the award of a contract either to the lowest and best bidder for the most suitable article or to any other. Its purpose is that purchases and contracts therefor shall be made after the advertising therein provided for, and contracts with all bidders or contracts by which the Government does not agree to purchase are not contracts made in compliance with its terms.

AVIATION PAY FOR THE MARINE CORPS.

The act of July 18, 1914 (38 Stat.,-), establishing an aviation section of the Signal Corps of the Army and providing additional pay for officers and enlisted men attached thereto, has no application under section 1612, Revised Statutes, to officers and enlisted men of the Marine Corps.

Additional pay for officers of the Marine Corps for aviation duty is fixed by the act of March 4, 1913 (37 Stat., 891, 892), which takes such pay out of the operation of section 1612, Revised Statutes, until further action thereon by Congress.

Comptroller Downey to the Secretary of the Navy, July 27, 1914:

I have your letter of the 22d instant requesting a decision, in which you say:

"1. The department has this date rated First Lieut. Bernard L. Smith and Second Lieut. William M. McIlvain, United States Marine Corps, as junior military aviators' within the meaning of the act approved July 18, 1914.

"2. It is requested that a decision by the Comptroller of the Treasury now obtain upon the question as to what increased compensation these officers in this rating are entitled to receive under the provisions of section 1612, Revised Statutes.

"3. It is further requested in connection with these particular cases that the Comptroller of the Treasury also decide what other provisions of the act of July 18, 1914, touching pay, allowances, gratuities, etc., for officers and for enlisted men on aviation service apply under section 1612, Revised Statutes, to like cases arising in the Marine Corps."

You inclose a letter from the Major General Commandant, Marine Corps, recommending the ratings you have made and requesting my decision.

The Major General Commandant states in part:

"1. The act of July 18, 1914, increasing the efficiency of the aviation service of the Army and for other purposes, authorizes, under certain conditions and within 60 days after the date of its approval viz: July 18, 1914, the rating as junior military aviator of any officer, with rank below that of captain, who is now on aviation duty and who has shown by practical tests, including aerial flights, that he is especially well qualified for military aviation service. This law directs that after said rating shall have been made it shall not be conferred upon any person except as otherwise provided for in that act. This act further provides each duly qualified junior military aviator shall while so serving have the rank, pay, and allowances of one grade higher than that held by him under his line commission, provided that his rank under said commission be not higher than that of first lieutenant, and while on duty requiring him to participate regularly and frequently in aerial flights, he shall receive in addition an increase of 50 per centum in the pay of his grade and length of service under his line commission.'

"3. Two officers of the Marine Corps, viz: First Lieut. Bernard L. Smith and Second Lieut. William M. McIlvain, now attached to the

aviation section of the Atlantic Fleet, on board the North Carolina, in West Indian waters, have according to information of record at these headquarters, shown by practical tests including aerial flights, that they are especially well qualified for aviation duty and as such are eligible to rating as 'junior military aviators.'

* *

"5. In these circumstances, believing the action proposed to be entirely lawful, this office recommends that the two officers mentioned, viz: * be now rated by the Secretary of the Navy as 'junior military aviators' as defined by the act of July 18, 1914. It is further recommended, when such is done, that these cases and the provisions of the act of July 18, 1914, be brought to the attention of the Comptroller of the Treasury with request that his decision obtain as to what increased pay these officers are now entitled to receive. * * * 29

The first section and parts of the second section of the act of July 18, 1914 (Public, No. 143), show the purpose and effect of that law, and are as follows:

"That there shall hereafter be and there is hereby created, an aviation section, which shall be a part of the Signal Corps of the Army, and which shall be, and is hereby, charged with the duty of operating or supervising the operation of all military air craft, including balloons and aeroplanes, all appliances pertaining to said craft, and signaling apparatus of any kind when installed on said craft; also with the duty of training officers and enlisted men in matters pertaining to military aviation.

"SEC. 2. That, in addition to such officers and enlisted men as shall be assigned from the Signal Corps at large to executive, administrative, scientific, or other duty in or for the aviation section, there shall be in said section aviation officers not to exceed sixty in number, and two hundred and sixty aviation enlisted men of all grades; and said aviation officers and aviation enlisted men, all of whom shall be engaged on duties pertaining to said aviation section, shall be additional to the officers and enlisted men now allotted by law to the Signal Corps, the commissioned and enlisted strengths of which are hereby increased accordingly.

"The aviation officers provided for in this section shall, except as hereinafter prescribed specifically to the contrary, be selected from among officers holding commissions in the line of the Army with rank below that of captain, and shall be detailed to serve as such aviation officers for periods of four years, unless sooner relieved, and the provisions of section twenty-seven of the act of Congress approved February second, nineteen hundred and one (Thirty-first Statutes, page seven hundred and fifty-five), are hereby extended so as to apply to said aviation officers and to the vacancies created in the line of the Army by the detail of said officers therefrom.

* *

Two ratings of aviation officers are provided by section 3 of the act, to wit, "junior military aviators" and "military aviators."

It is shown by the parts of the act quoted that the aviation officers and enlisted men are to belong to the Signal Corps of the Army,