Mr. BROOKS. They are a more expensive-type installation than yours or Mr. O'BRIEN. It is a better partition. It is worth more and costs more. Mr. BROOKS. Then you went out to the building to take a look? Mr. O'BRIEN. I called Mr. Warren first. I asked Mr. Warren, I said, "Do you want a bid from us on this job or not? It looks like the same old wrangle will come up again if we bid on this job, the way the specifications are written." Mr. Warren didn't want to talk too much about the job. And so I went to the building. The plans didn't show where in the building the partitions were to be installed. I know the building pretty well. I know a number of people that work in the building. We have done some work in the building. So I went first to see I asked for Mr. Moran, who was away. Mr. Anderson, who I know, is away. And there is another gentleman that kind of occupies an office outside of Mr. Anderson's office and I was referred to him for any information I wanted. He didn't know about a job that was to be done. Mr. BROOKS. He did? Mr. O'BRIEN. He did not know about any job to be done there. But he took me around the building and he thought that looked like a job that was already there. So I went down there and saw a partition installation. It looked almost like the plans that I was to bid. And so then I called Mr. Jay. I asked him-first I asked him why we were asked to bid a job through contractors when our competition was bidding it direct. Mr. Jay seemed to feel that I had a just complaint, and he told me if that is the case, he asked me if I would write him a letter to that effect. And I told him I would, but as events occurred later, I didn't bother writing a letter. Mr. BROOKS. When you went out and saw that apparently there were new partitions that were serviceable, already installed Mr. O'BRIEN. Then I asked Mr. Jay if those were the partitions that were referred to, and he said "Yes"; he told me that they were installed. Mr. BROOKS. He knew that they were installed? Mr. O'BRIEN. Yes, sir. And I asked him why we were bidding the job. He told me that they were installed not through the regular procedure, but they did want to get bids on it. I asked him what would happen if we were low bidder. He told me that Henges would probably have to-I don't know whether it was probably, or that they would have to take the partitions out if we were low bidder and we would put our partitions in. Mr. BROOKS. Did this strike you as a little unusual? Mr. O'BRIEN. Yes, sir. And then I looked, later on I looked back in the page preceding your specifications have an index, and the first time I looked at the job I looked at the index number. It called for the partitions to be installed. But on the page preceding that there is a general requirement that made some vague reference and didn't tell you exactly what you might have to do with some existing partitions that are there. At least, I couldn't figure out what you were supposed to do, whether you were supposed to take them out and put them someplace else, or take them out and set them aside. It was unclear to me. Mr. BROOKS. This is section 4-8 of the specifications-check me if this is right-page 41: Existing work may be removed, retired, or temporarily removed and same replaced for the performance of the work to be done. Work remaining in place, damaged, or defaced by reason of the work done under this contract shall be restored to its original condition. Mr. O'BRIEN. Yes, sir. Mr. BROOKS. This left you sort of in a quandary as to whether you took out what was there and replaced it, or if you took it out you had to put it back without damaging it in the same place where you had put new partitions? Mr. O'BRIEN. Actually Mr. BROOKS. It was pretty involved. Mr. O'BRIEN. Actually, I didn't know what to do with it. It wasn't clear to me. It still isn't. Mr. BROOKS. You don't do this very often, do you? Mr. O'BRIEN. No, sir. Mr. BROOKS. Did you ever hear this done before, advertising for a job that, when you go look at it, is apparently all completed? Mr. O'BRIEN. No, sir. Mr. BROOKS. It does seem very strange, doesn't it? Mr. O'BRIEN. Yes, sir. Mr. BROOKS. Was that basically your reason for not submitting a bid? Mr. O'BRIEN. Yes, sir. I didn't know why Mr. BROOKS. It just didn't make sense to you to go tear up something, or start over, or what. Mr. O'BRIEN. That's right. That was my reason. Mr. BROOKS. Mr. Wallhauser? Mr. WALLHAUSER. Mr. O'Brien, after this was unclear to you, did you try to make it clear? Mr. O'BRIEN. I called Mr. Warren again. I had also complained to Mr. Warren about the fact that we were bidding, asked to bid through contractors when other partition men were asked to bid direct. I called him again about that. I also told Mr. Warren that the job just didn't look-it looked strange to me and I didn't care to bid it. Mr. Warren said, "That is your decision. I am glad it's yours and not mine." Mr. WALLHAUSER. But it wasn't this one specific part of the specification that caused you not to bid it; it was an accumulation? Mr. O'BRIEN. It was an accumulation of things. In fact, I decided not to bid it before I read that particular part of the specifications. But after I read that I was awfully glad I didn't. Mr. WALLHAUSER. You had already decided not to bid it before you read it? Mr. O'BRIEN. Yes, sir. Mr. BROOKS. After you had seen they were already installed. Was that the determining factor? Mr. O'BRIEN. Yes, sir. It looked to me like it was some kind of complementary bid, or something, that was desired from me. I didn't want to give a complementary bid. I don't recall ever having done it, or requested one. That was my reason. Mr. BROOKS. Is there anything else in regard to the GSA operations which you think might be helpful to this hearing? Mr. O'BRIEN. As far as I know, if there is anything you want to know from me, I will answer the truth as I know it. Mr. BROOKS. Do you have any further questions, Mr. Wallhauser? Mr. WALLHAUSER. No. I would like to emphasize-make sure that I understood one point clearly-Mr. Jay did say, did he not, that if you were low, the Henges Co. would have to take out its partitions? Mr. O'BRIEN. I think he said they did, or they probably would. I forget whether they definitely would have to, or whether they probably would. I think probably-anyhow, he wanted me to bid the job, and intimated that we would get the job if we were low bidder. Mr. BROOKS. And they would take out the new partitions and you would put them in, apparently? Mr. O'BRIEN. I assume so. Mr. BROOKS. Didn't that strike you as a rather unbusinesslike procedure? Mr. O'BRIEN. Well; yes, sir. Mr. BROOKS. You don't generally go and put in new partitions; people don't just take them out and replace them with the same thing, or essentially the same thing. They are apparently fairly equal, the two types of partitions. Mr. O'BRIEN. Yes, sir. Mr. BROOKS. Did you think they have had put them up pretty well? They looked like they would stand? Mr. O'BRIEN. They would do the job. Mr. BROOKS. If they had been yours, would you have replaced them? If you had owned the buildings, would you have left those partitions in there? They looked all right to you? Mr. O'BRIEN. Yes, sir. Mr. BROOKS. We sure appreciate your coming down. Mr. O'BRIEN. Is that all, sir? Mr. BROOKS. Gentlemen. We would like to call Mr. James L. Horn Bostel, the GSA regional counsel. Please be sworn, sir. Raise your right hand. Do you swear that the testimony you are about to give this subcommittee will be the truth, the whole truth, and nothing but the truth, so help you God? Mr. HORNBOSTEL. I do. Mr. BROOKS. Will you be seated and give us your full name? I believe we have it correct. You might clarify it if we don't. It is a capital "B." That is right, isn't it? Mr. HORN BOSTEL. Yes, sir. TESTIMONY OF JAMES L. HORNBOSTEL, REGIONAL COUNSEL, GENERAL SERVICES ADMINISTRATION, REGION 6, KANSAS CITY, MO. Mr. HORNBOSTEL. My name is James L. Horn Bostel. I am regional counsel for region 6, General Services Administration, Kansas City, Mo. Mr. BROOKS. How long have you served GSA in that capacity, sir? Mr. HORN BOSTEL. I was with GSA when the law was enacted in 1949-July 1. And then I was furloughed because of reduction in force, and when the regional office was set up, I believe it was around the first week in October, I was recalled from furlough about the 20th of October and I have been regional counsel ever since October 20 or the week before November, anyway, 1950, until this date. I have been on the job since 1950. Mr. BROOKS. You were asked by the subcommittee investigator, were you not, to give written memorandum in answer to certain questions on this CSS partition work, were you? Mr. HORN BOSTEL. Yes, sir. I was requested to give that. I have my original office file copy. Mr. BROOKS. It is dated February 4, 1960. Is that right? Mr. BROOKS. I have an extra copy here. Mr. HORN BOSTEL. I have my original office file copy. Mr. BROOKS. We would like originals even better than photostats. Mr. HORN BOSTEL. I probably can read it better. Yes, sir; I did under date of February 4, 1960. Mr. BROOKS. The subject is "Commodity Stabilization Service, Kansas City, Mo., PB-JO-60071." Mr. HORN BOSTEL. Yes, sir. Mr. BROOKS. The entire memo will be placed in the appendix in the record. I would like to have you read into the record the second paragraph at this time. Mr. HORN BOSTEL (reading): Contract PB-JO 60071 was not approved for legal sufficiency, reference my routing slip of January 14. Memorandum to the file of January 26 from regional director, PBS, confirms that no work will be performed under said contract. Payment thereunder will be for work previously and "voluntarily" accomplished by contractor. Mr. BROOKS. As I understand it, when you wrote that rejection on January 14 you knew that the work had been performed some months earlier, approximately. It was around September 1. And that the advertised competitive bidding was after the fact? Mr. HORN BOSTEL. That is correct. Mr. BROOKS. I wonder if you would read, sir, the third and fourth paragrahs of that statement. Mr. HORN BOSTEL. The third and fourth paragraphs? Mr. BROOKS. Yes, sir. Starting off "In my opinion the partitions are personal property." Mr. HORN BOSTEL (reading): In my opinion, the partitions are personal property. If they are real property or part of the building, no payment could be had. To illustrate, should a person without contract, authority, or "voluntarily" paint a house or install a roof on a third person's house the recipient of the benefits would not be obligated under the law to pay for them. Do you want the other? Mr. BROOKS. And the fourth paragraph. Mr. HORN BOSTEL (reading): If personal property similarly delivered to one is returned to sender, there is no obligation to pay for it. If said personal property, however, is retained, needed, or used by one, the law implies an obligation to pay for it on the theory of quantum merit. The word "merit" is spelled wrong. It is m-e-r-u-i-t. I know the proper spelling of it. I don't know how it got by here. Mr. BROOKS. That was your opinion when you reviewed the contract on January 14. Is it still your opinion? Mr. HORN BOSTEL. It is personal property; yes, sir. Removable partitions. Mr. BROOKS. And this statemeent is still your opinion on the matter? Mr. HORN BOSTEL. Yes, sir. Mr. BROOKS. After you had written your rejection of the contract on January 14, 1960, were you criticized for putting it in writing? Mr. HORN BOSTEL. I learned the fact in a conference, two conferences, one January 21, and January 22. In the conference of January 22 I was critized not whether the opinion was right or wrong but that I shouldn't have written it or put it in the record, the file, the official files, without conferring with Mr. Lund. Mr. BROOKS. Was there any reason for not writing down your official opinion as to the legality of a given matter when you are acting as regional counsel and representing the Government interest in this area? Mr. HORN BOSTEL. As I said at the time, I would have been happy to follow procedure, but I didn't know that was the procedure. Mr. BROOKS. Has the procedure in the past been for you to just orally say you can or you can't do things, or do you customarily as a lawyer write your opinions on matters so that it will be a part of the record? Mr. HORNBOSTEL. I give a written opinion on every contract I approve, maybe by rubber stamp "Approved for legal sufficiency." If I do not approve them, I give a written memorandum. That had been the policy of my office. Mr. BROOKS. Have they complained before about your giving a written reason for not approving a written contract? Mr. HORN BOSTEL. No, sir. Mr. BROOKS. No complaint before about writing down the reason? Mr. HORN BOSTEL. No, sir. Mr. BROOKS. This is the first time they complained about a written reason, or opinion? Mr. HORN BOSTEL. Well, it was just pointed out to me that I should have conferred with Mr. Lund prior to doing it. My reply to that was that it didn't come from Mr. Lund, it came from the Design and Construction Division that I rendered the opinion to. It came into my office as a routine matter. This It is under procedure that these contracts come in to me. came in to me and when I saw it then I disapproved it, in my memorandum of the 14th of January. Mr. BROOKS. You generally give your best and most honest opinion you can think of and do it as right as you can and submit it back to the design and construction people, and then they follow it on up if there is any complaint, up through channels I guess to Mr. Lund and to Mr. Jay; is that it? Mr. HORNBOSTEL. I haven't experienced it before, sir, to my knowledge. I haven't experienced that. I also have contracts for the other divisions there. We have Federal supply and we have transportation, and utilities division services, 58364-60-6 |