terminate minor controversies which arise and which are not covered by the guaranty contained in 716, the decision of the Secretary or his appointed repre sentative should be final on all matters of fact.

Though the guaranty required in all departmental standard specifications for trucks has been changed to comply with your Decision, request is made that your Decision be reconsidered in view of the important facts herein submitted.

It is to be understood, of course, that it is not a duty or function of this office to draft the guaranty or other provisions which are to be included in specifications covering the purchases of equipment or sup plies for the various departments of the Government. Such responsibility primarily is a function of the Federal Specification Board, Procurement Division, Treasury Department, and/or the particular administrative office making the purchase in the event an applicable Federal specification has not been formulated. The duty and responsibility of this office in that respect is to determine the question as to whether specifications which have been drafted by administrative departments are unduly restrictive of competition or otherwise unauthorized-this question being one that goes to the legality of contracts and the uses of appropriated moneys. See 17 Comp. Gen. 554; 18 Comp. Gen. 285, 579, and 19 Comp. Gen. 673.

In the decision of May 31, 1941, supra, 20 Comp. Gen. 836, there was questioned by this office a provision in invitation for bids No. 5809, dated January 26, 1940, which had been issued by your Department for the purchase of a truck, six wheel-four rear wheel drive-2,000 gallon oil tank body-rated gross vehicle weight 30,000 pounds, for the National Park Service, pursuant to which invitation contract No. I-1-P-12670 was entered into on April 22, 1940, with The Autocar Sales & Service Company for the purchase of said truck at a price of $5,620, less a trade-in allowance of $125, or a net price of $5,495. The questioned provision was contained in that part of the invitation for bids entitled "Special Bid Conditions" and provided, in pertinent part, as follows:

The bidder guarantees that the machine or machines bid on will do the work required as set forth in "Service Requirements" without undue stress or delay and in a satisfactory manner, for a period of at least one year after date of acceptance of the machine or machines by the Government. Except as otherwise specifically provided in this contract, all disputes concerning questions of fact arising under this contract shall be decided by the contracting officer subject to written appeal by the contractor within 30 days to the head of the department concerned or his duly authorized representative, whose decision shall be final and conclusive upon the parties thereto.

Contractor will be required to post a bond equal to 100% of the amount of the contract as a guarantee that the equipment delivered under the contract will be in accordance with the specifications and will perform to the satisfaction of the Government for a period of one year from date of delivery.

Said provision was questioned in the decision of May 31, 1941; supra. for the reason that the facts of record indicated that the inclusion of a guaranty provision of such an exacting nature was unauthorized

as being contrary to that provided for in Federal specification No. KKK-T-716, the general guaranty provisions of which specificationalthough being designed primarily for the purchase of four wheel trucks two rear wheel drive, of 1,000-pound payload capacitywere believed to have been intended to cover the purchase of trucks generally by the departments of the Government. The pertinent provisions of said specification 716 require that the successful bidder shall guarantee that the truck furnished will be suitable for the work to be performed, and will guarantee the truck against defective workmanship and material for a period of 90 days, or for 4,000 miles of road travel, and against faulty design developing during a period of one year, or 8,000 miles of road travel. In connection therewith, it was stated in the decision of May 31, 1941, that there appeared to be no perceivable reason why the general guaranty provisions of specification No. 716 could not be used to meet every particular and essential need of the National Park Service in the purchase of trucks, or why such guaranty provisions should not be included in specifications covering the purchases of trucks to the exclusion of the more drastic and exacting guaranty requirement contained in the special bid conditions of invitation No. 5809, supra.

Also, it was stated in the decision of May 31, 1941, that the guaranty provision contained in the questioned invitation apparently served to limit and restrict competition and resulted in excess cost to the Government, as was evidenced by the fact that while circular letters were sent to 51 dealers, only three bids were received; and by the further fact that an otherwise acceptable low bid was rejected for the sole reason that said low bidder refused to subscribe to the guaranty provision contained in the special bid conditions of the invitation, resulting in an award to the highest bidder at an excess cost to the Government of approximately 12 percent. On that state of facts, you were informed that the special bid conditions should be eliminated from future invitations for bids covering the purchase of trucks for your Department.

Upon reconsideration of the matter in the light of the facts now set forth in the Acting Secretary's letter of April 13, supra, it appears doubtful, as is stated therein, whether it may be said that the general guaranty provisions of specification No. 716 were intended by the Federal Specification Board to apply to the purchase of trucks generally by Government departments, regardless of the size or type of the truck. In other words, while the facts of record at the time of the decision of May 31, 1941, supra, justified the conclusion stated in said decision, namely, that the general guaranty provisions of specification No. 716 apparently were intended for applica

tion in the purchase of all types of trucks, it now appears from the Acting Secretary's letter of April 13 that such was not the intention of the Federal Specification Board, but that at the time specification No. 716 was drafted, it was intended by the Board to be applicable to the purchase of four wheel trucks, only--two rear wheel drive-with a 1,000-pound payload capacity. Accordingly, it may be concluded that in view of the evidence now of record the general guaranty provisions of specification No. 716 were not intended or required to be used in the purchase of the type of truck covered by invitation No. 5809, supra. Also, there appears to be no other Federal specification which applies directly to such type of truck.

Therefore, this office will not object to the incorporation by your Department, in future invitations for the purchases of heavier and more expensive types of trucks and similar equipment, of a provision requiring bidders to guarantee the satisfactory performance of such equipment for a period of one year, or for the number of miles it is estimated that the equipment will travel during the period of a year, if it be determined by your Department that the use of such a provision is necessary to protect the interest of the United States and to insure that replacement of defective parts will be made promptly by contractors; and provided that the inclusion of such a provision in invitations does not tend to restrict competition unduly or to increase unnecessarily the cost of the equipment to the Government.

With respect to this latter objection, it now appears from the record, as is stated in the Acting Secretary's letter of April 13, supra, that the International Harvester Company, whose low bid on invitation No. 5809, supra, was rejected, did not take exception to that part of the special guaranty provision, supra, requiring bidders to guarantee the satisfactory performance of the equipment for at least a year, but that the objection of said bidder was directed to the stipulation that the decision of the contracting officer, or, on appeal, the decision of the head of the department, was to be final and conclusive on all disputes concerning questions of fact. Furthermore, it now appears that said bidder apparently has agreed to abide by the terms of such provision as it did not take exception to a similar provision in a subsequent invitation for the purchase of equipment on which it was the successful bidder. Also, it does not appear that any other manufacturer of these heavier, more expensive and more complex type of trucks and similar equipment has taken exception either to the provision requiring them to guarantee the satisfactory performance of the equipment for a period of a year or to the provision stipulating that the determination of the contracting officer and/or the head of the department shall be final on disputes concerning questions of fact. And there is no evidence

of record definitely showing that in the past bidders have increased their prices beyond what they otherwise would be but for the inclusion of the guaranty provision in the special bid conditions.

However, the provision in the special bid conditions requiring the successful bidder to post a bond equal to 100 percent of the amount of the contract as a guarantee that the equipment delivered will be in accordance with specifications and that it will perform to the satisfaction of the Government for a period of one year, would appear to increase unnecessarily the cost of equipment to the Government, since bidders undoubtedly include the cost of such performance bonds in their bid prices, and the manufacturers of the heavier type of trucks and other similar equipment purchased by your Department generally are reputable concerns which have been in business for a number of years, and presumably will replace any defective parts promptly, as is evidenced by the example cited in the Acting Secretary's letter of April 13, supra. Accordingly, it ordinarily would not appear to be necessary to have bidders on this type of equipment furnish a performance bond, at least in the full amount of the contract price, unless your Department has reason to believe that the successful bidder may be other than a reputable manufacturer and that the protection of the Government's interest would seem to require such a performance bond.

(B-26801)

RETIREMENT-DISTRICT OF COLUMBIA JUDGES

The provisions of section 11 (a) of the act of April 1, 1942, establishing a retirement system for judges of The Municipal Court, The Municipal Court of Appeals and of the Juvenile Court of the District of Columbia, are not mandatory but merely grant said judges the privilege of electing to receive the benefits therein provided, and until such election is made, said judges are not "subject to another retirement system" so as to exclude them from the benefits of the Civil Service Retirement Act of 1930, as amended, to which they are otherwise entitled.

If a judge of The Municipal Court, The Municipal Court of Appeals or of the Juvenile Court of the District of Columbia elects to accept the retirement benefits authorized for judges of such courts by section 11 (a) of the act of April 1, 1942, he will be regarded as having relinquished his right to retirement benefits under the Civil Service Retirement Act of 1930, as amended-a claim for retirement deductions under the latter act to be regarded as such an election.

Comptroller General Warren to the President, United States Civil Service Commission, June 29, 1942:

I have your letter of June 17, 1942, as follows:

Section 3 of the Civil Service Retirement Act of May 29, 1930, as amended, provides in part:

"This Act shall apply to all officers and employees in or under the executive, judicial, and legislative branches of the United States Government, and

to all officers and employees of the municipal government of the District of Columbia, except elective officers and heads of executive departments: Provided, That this Act shall not apply to any such officer or employee of the United States or of the municipal government of the District of Columbia subject to another retirement system for such officers and employees of such governments:

* * * "

The judges of the various courts of the District of Columbia not already subject thereto were brought within the terms of the retirement act by the amendment of January 24, 1942, and deductions have been taken from their salary for retirement purposes since that date. At least one of these judges has been contributing to the retirement fund for several years, having retained membership by reason of continuity with prior service under the retire ment act. (10 Comp. Gen. 491; 34 Ops. Atty. Gen. 334).

Section 11 (a), Public No. 512, 77th Congress, approved April 1, 1942, reads: "Any judge of The Municipal Court for the District of Columbia, any judge of The Municipal Court of Appeals for the District of Columbia, as established by this Act, or any judge of the Juvenile Court of the District of Columbia, may hereafter retire after having served as a judge of such court for a period or periods aggregating twenty years or more, whether continuously or not. Any judge who so retires shall receive annually in equal monthly installments, during the remainder of his life, a sum equal to such proportion of the salary received by such judge at the date of such retirement as the total of his aggregate years of service bears to the period of thirty years, the same to be paid in the same manner as the salary of such judge. In no event shall the sum received by any such judge hereunder be in excess of the salary of such judge at the date of such retirement. In computing the years of service under this section, service in either the Police Court of the District of Co lumbia or the Municipal Court of the District of Columbia, or the Juvenile Court of the District of Columbia, as heretofore constituted, shall be included whether or not such service be continuous. The terms 'retire' and 'retirement' as used in this section shall mean and include retirement, resignation, or failure of reappointment upon the expiration of the term of office of an incumbent."

The commission has been informally advised that a number of the District of Columbia judges have discontinued their contributions to the Civil Service Retirement and Disability Fund and expect to submit claims for refund of retirement deductions previously made. Furthermore, we understand, informally, that some of those now under consideration for appointment as judges, as authorized by said act of April 1, 1942, have been under the civil service retirement system for a number of years past, and consequently, if appointed, they will transfer from their present positions in which they are now members of the retirement system, to their new positions as judges of said courts without break in service.

The former Comptroller General in his decision of August 29, 1934 (14 Comp. Gen. 174) held:

"There are several retirement acts in force among personnel subject to the civil-service laws and regulations, such as the Civil Retirement Act, the Panama Canal Retirement Act, the Lighthouse Service Retirement Act, etc. No employee is subject to more than one retirement act at the same time While the employees of the Railroad Retirement Board are subject to the civil-service laws and regulations, as the act of June 27, 1934, supra, specifcally subjects them to the retirement system therein established for railroad employees, they are not required to contribute to the civil service disability and retirement fund under the terms of the Civil Retirement Act."

This decision holds that employees of the Railroad Retirement Board whe would otherwise have occupied a status under the civil service retirement law were removed from the operation of that law by the definite and specific terms of the act of June 27, 1934, which mandatorily placed them under the system set up for railroad employees.

On the other hand, section 11 (a), supra, provides for a payment of benefits. after completion of twenty years' service as a judge, but has no provision for the vesting of interest in any benefit before the completion of twenty years of such service. Furthermore, the acceptance of such benefit appears entirely within the discretion of the judge. In the opinion of this Commis sion, the retirement benefits provided by the act of April 1, 1942, not being