Riggs National Bank for $96,000. Said bond is to mature on May 25, 1962, and provides for interest at the rate of 32% per annum, payable semiannually to The Riggs National Bank.

The bank retained $16,000 in a savings account in the name of the D.C. Armory Board to meet the expenses of the Armory Board in connection with Stadium obligations, part of which was earmarked and retained in the savings account to pay interest on the borrowed funds. The Riggs National Bank has expressed a willingness to pay interest on this savings account (of $16,000) at the rate of 3% per annum.

Your specific questions are as follows:

(1) Whether the proceeds received from the sale of bonds under the provisions of the 1957 Act, as amended, are required by law to be deposited in the Treasury of the United States and expended in the same manner as other public funds of the District of Columbia are received and expended;

(2) In view of the 3% interest which the Armory Board will receive on the $16,000 (now in a savings account at The Riggs National Bank) plus the fact that the major portion of this ($10,080) will be used to pay the Riggs National Bank its 32% interest on the $96,000, can this sum be left on deposit at the Bank either in whole or to such extent as to meet the Armory Board's obligation to pay to The Riggs National Bank the 32% interest on the $96,000;

(3) When the Armory Board sells a bond or bonds in the future, either for the cost of final drawings and specifications, the construction of the Stadium and/or other purposes as stated in the 1957 Stadium Act and, at the same time, incurs an obligation to repay such bond or bonds, plus interest, is the money derived from such sale a "receipt" (derived from the exercise by the Board of the powers granted by the 1957 Stadium Act, as amended), and as such, must be deposited in the Treasury of the United States in view of the fact that the Armory Board is primarily required to pay off the principal and interest on such bonds under the 1957 Stadium Act? The District of Columbia Armory Board was created by Public Law 603, approved June 4, 1948 (62 Stat. 341). The purpose of this act was to state a policy for maintenance and operation of the District of Columbia National Guard Armory with the use to be, primarily, for the quartering and training of the Militia of the District of Columbia, and, secondarily, to provide suitable facilities for major athletic events, conventions, concerts and such other activities as may be in the interest of the District of Columbia. Section 8 of the 1948 act provides that expenditures from the Armory Board working capital fund (created by section 8) may be made only upon vouchers which have been certified by the Armory Board and approved by the Auditor of the District of Columbia before payment, and that such expenditures shall be disbursed in the same manner as other District of Columbia funds are disbursed.

The District of Columbia Stadium Act of 1957, as amended (Stadium Act), authorizes the Armory Board to construct and operate a stadium having a seating capacity of not more than 50,000. The Stadium Act also authorizes the Armory Board to issue negotiable bonds bearing interest to finance stadium construction costs, but provides that the interest (on the bonds) shall not be at a rate in excess of that approved by the Secretary of the Treasury. The act further provides (section 6(a)), 62 Stat. 340, that the Armory Board "shall place into an operating fund all receipts derived from

the exercise by the Board of the powers granted by this Act" (i.e. the Stadium Act, as amended) to be used for constructing, operating and maintaining the stadium. Also, section 9 of the Stadium Act, 62 Stat. 34, as amended, provides in pertinent part as follows: All bonds and other securities issued by the Board under authority of this Act are hereby guaranteed as to both principal and interest by the United States. [Italics supplied.]

Inasmuch as the bonds issued by the Armory Board under the Stadium Act, as amended, are guaranteed as to both principal and interest by the United States, we are of the view that the funds received from the sale of such bonds should be regarded as public moneys required to be deposited in the Treasury of the United States pursuant to 31 U.S.C. 482 and 31 U.S.C. 521, in the absence of specific statutory authority permitting such funds to be deposited in commercial banks or other private depositories.

While the Stadium Act is silent as to whether funds received from sale of the bonds should be expended in the same manner as public funds of the District of Columbia, it expressly states that the construction of the stadium is "to provide the people of the District of Columbia with a stadium" (see section 2 of the act), 62 Stat. 339. Also, section 10 of the act, 62 Stat. 342, provides that the Commissioners of the District of Columbia shall certify as to accuracy the financial statement the Armory Board is required by the section to file with the Congress each year. Moreover, provisions are included in the act (section 9) under which the District of Columbia will, if necessary, obtain and furnish funds to the Armory Board in order to insure prompt payment of amounts payable on account of the bonds, although such amounts are reimbursable to the District of Columbia out of available moneys in the "sinking fund," established by the act. Also, it would appear to be in the interest of economy that the bond proceeds should be expended in the same manner as public funds of the District of Columbia, since the District Government has the necessary personnel and facilities for approving, processing and paying vouchers of the Armory Board. (See section 8 of the act of June 4, 1948, referred to above.) In light of the foregoing it is our view that the bond proceeds should be expended in the same manner as are public funds of the District of Columbia.

Your first question is answered accordingly.

In view of the answer to question No. 1, your second question is answered in the negative.

As to question No. 3, House Report No. 2146 (85th Congress, 2d Session), on the bill which became Public Law 85-561 and amended the District of Columbia Stadium Act of 1957, contains the fol lowing (p. 8):

(e) The stadium's operating fund shall be used for constructing, operating; and repairing the stadium. This fund will include receipts from the issuance of bonds as well as revenues derived from the operation of the stadium. It is clear from the quoted statement that moneys derived from the sale of bonds are to be considered "receipts," within the scope of that term as used in section 6(a) of the act, as amended, and as such, are for deposit into the operating fund established by the section. Hence, and in view of the answer to question No. 1, your third question is answered in the affirmative.

[B-138859]

Contracts - Specifications — Restrictive — Particular Make-Negotiated Procurement

A specification which requires the use of a particular manufacturer's regularly produced item or a major component thereof on the basis that the item furnished in previous procurements met the needs of the contracting agency, without any administrative determination as to whether another manufacturer's product embodying different design features may be equally suitable to the agency needs, is so restrictive as to prevent the competition required under advertised procurement procedures, even though other manufacturers may duplicate the item or component.

Specifications which describe a particular manufacturer's product by its exact characteristics in detailed drawings are no different from specifications which indicate a product by brand name and model number and, therefore, it is required that the phrase "or equal" or words of similar import must be added to the description and that bids which offer products which will perform the job just as well must be considered for award on an equal basis.

A lapse of more than six months between the date of initiation of a negotiated procurement, which was authorized under 10 U.S.C. 2304 (a) (2), on the basis that the public exigency would not permit the delay incident to an advertised procurement and the date of the contract award, together with the fact that a period of 30 days was allowed for submission of proposals, compares favorably with period of time required under formally advertised procurements and indicates that the public exigency exception may not have been properly invoked; however, in view of the fact that much of the delay was due to the careful review after protest of the award and in view of the advanced state of completion of work under the contract, objection will not be raised to the negotiated procurement.

To the Secretary of the Air Force, August 18, 1959:

We refer to letters of April 2, June 8, June 18, July 8, and August 4, 1959, signed by various members of your staff concerning Request for Quotation No. ENG-11-184-(NEG-59-A-129) and Invitation for Bids No. DA-ENG-11-184-59-A-736-JD, May 29, 1959, both issued by the Corps of Engineers for the procurement respectively of 160 and 150 snowplows for the Department of the Air Force.

With respect to the negotiated procurement, it is reported in enclosures to a letter signed by the Assistant Secretary of the Army (Logistics), dated April 21, 1959, that the Chicago Procurement Office, Corps of Engineers, received from the Air Force, Military Interdepartmental Purchase Requests (MIPR) No. 40-604-8-50B

671, dated June 18, 1958, for 10 snowplows and No. 40-604-9-50B819, dated August 18, 1958, for (as subsequently amended) 150 snowplows in accordance with specification No. MIL-S-26850C(USAF) dated May 16, 1958. The specification requires equipment pursuant to drawings referenced therein covering a chassis as manufactured by Oshkosh Motor Truck, Inc., and plow units as manufactured by Frink Snow Plow, Inc., Wausau Iron Works and Sicard Industries, Inc. The report from the Army states that in a conference between representatives of the Corps of Engineers and the Air Force, the latter stated, "This was the only equipment that would do the job." A memorandum dated February 19, 1959, signed by the Director of Research and Development, USAF, enclosed with the Army report states:

The Air Force has reviewed the specification used in the procurement of 160 snow plows by RFQ, ENG-11-184 (Neg. 59-A-129) to specification MILS-26850C (USAF), and has determined that this specification sets out and represents the minimum requirements of the Air Force for snow plows to be used in clearing snow from air field runways.

The MIPR's indicated that the requirement for the snowplows was urgent. In addition, a letter dated August 27, 1958, from the Director, Supply and Services, Memphis Air Force Depot, also enclosed with the Army report states:

1. The snowplows to be procured on subject MIPR's are urgently required by the Air Force. Non-receipt of these snowplows prior to the coming winter season will seriously hamper flight operations at Air Force bases. The most serious effects would be felt by new activations within the Strategic Air Command, where there has been no prior requirement. Aircraft will be subject to grounding as a result of heavy snowfall at these locations now lacking this equipment if delivery is not timely.

2. In view of the above, it is requested that urgent handling be afforded subject MIPR's as provided by AFPI, Paragraph 3-202.2 3 III.

The cited AFPI provision relates to the public exigency exception to the general requirement that supplies and services be acquired through the use of competitive bid procedures. In view of the stated urgency, the contracting officer determined that the procurement should be negotiated pursuant to 10 U.S.C. 2304 (a) (2) which authorizes negotiation when "the public exigency will not permit the delay incident to advertising."

Request for Quotation No. ENG-11-184-(NEG-59-A-129) covering the 160 snowplow requirement was issued October 13, 1958. (The delay between preparation of the second MIPR and date of issuance of the RFQ was caused in large part, according to an enclosure to the letter of June 8, by the need to reproduce certain of the 1,700 drawings incorporated in the specification by reference.) Proposals were to be opened November 12, 1958. The request was sent to 19 firms; four offers were received in reply, two of which were determined to be nonresponsive. One of the firms submitting a nonresponsive offer, Walter Motor Truck Company, protested the

procurement. By a telephone call on November 12, from Headquarters USAF, the Corps of Engineering was requested to withhold further action on the procurement because of the protest. This request was confirmed by a teletype message of December 19, 1958. In accordance therewith, action on the procurement was held up by the Corps of Engineers.

By teletype dated January 12, 1959, from Headquarters USAF, the contracting officer was authorized to proceed with the award. However, on January 14, 1959, the Assistant Secretary of the Air Force (Materiel) requested that the award be withheld pending his review, which was apparently completed by January 23, 1959, when the Air Force MIPR Officer in Chicago was advised by Headquarters USAF, to authorize the Corps of Engineers to proceed as expeditiously as possible with the award. Further delay was incurred pending a review of the matter by the Secretary of the Air Force. Finally, on February 5, 1959, the Corps of Engineers was requested to cancel all hold orders and to make an all-out effort to procure the snowplows.

Meanwhile pursuant to a request (apparently prompted by the large number of delays) from the contracting officer dated January 15, 1959, the Air Force Liaison Office, by memorandum of January 20 verified that the procurement was still urgent. The latter memorandum states in part:

1. The fact that delivery of subject snowplows can not be effected before April 1959 will in no way moderate the Air Force requirement that delivery of these plows be consummated at the earliest possible date.

2. Shipping instructions for first group of subject units will be directed to the far north of the Western Hemisphere. An initial delivery in April 1959, accompanied by a suitable transportation priority, will not be out of line with the use of these plows at designated site.

3. Just recently this office has received a communication from HQ USAF and Hq Air Defense Command (copies attached) stating that earliest possible delivery of subject snowplows is required and that Schedule "A", as referred to in the contract, be adhered to.

Accordingly, negotiations were resumed with the responsive offerors and award was made to Oshkosh on March 2, 1959. We understand that this negotiation period might have been shorter but for the frequent and careful review at several stages prompted by the wide degree of interest in the procurement.

The letter of April 2 from the Deputy, Procurement and Production, indicates that specification No. MIL-S-26850C, USAF, dated May 16, 1958 (superseded by MIL-S-26850D, October 7, 1958, which is substantially identical), covers a snowplow having a Gross Vehicle Weight of 54,000 lbs. including a truck chassis, associated displacement blades, a universal blade mounting attachment, and a high speed large capacity rotary plow with auxiliary engine. The letter further states that in four prior procurements of vehicles of a similar