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Senator STENNIS. I have just a few other questions. On this matth. ter of the continental air defense, I had said in my original statement,
even though there had not been a chance for a formal conference on this with other committee members, we have discussed it from time to time on an informal basis, and especially in view of the recent new announcement with reference to the continental air defense, I felt justified in saying that we would emphasize that subject in our hearings. You say you want more time to submit certain figures in view of this recent BOMARC decision.
Mr. BRYANT. That's right, sir.
Senator STENNIS. That is all right. We will give you time. But at the same time I hope you can have your figures in within a week, because we will set up that hearing, and we want to know just where you have lighted on your figures before we hear General Kuter, I believe it is, who is now commander.
So let's get those in within a week if you can, or say 10 days from now.
Mr. BRYANT. Mr. Chairman, I will make every effort and I believe I can do it within a week.
Senator STENNIS. All right. And another thing that we will want to hear you on, that we will want you to cover explicitly, are the contracts by competitive bids. We want a showing where it is actually competitive, and what percentage are handled that way and so forth. We always go into that, so I know you are anticipating those questions.
Mr. BRYANT. That's right. As a matter of fact, I have a reference in my prepared statement which you admitted to the record which bears on this. My recollection is, and I think this is correct, that last year it was 92 percent.
(The following information was subsequently submitted :) During fiscal year 1959 the three military departments awarded worldwide military construction contracts amounting to a total of $1,481,422,591. Of this amount, contracts totaling $1,357,507,398 (or 92 percent) were awarded by means of formally advertised competitive bids, with the award being made to the lowest responsible bidder.
Senator STENNIS. Yes. Well, we would want an analysis to show that that is full-fledged competitive bidding. We get letters from time to time saying that the specifications on some projects were worded so as to eliminate actual competitive bidding. It does have it on its face but not in reality. So our questions will be certainly searching on those points. Now also you make a special showing here, I am sure, about the family housing picture, what you have now, what you are asking for and the guidelines that you have applied.
Mr. BRYANT. Yes, sir.
Senator STENNIS. I mention these now for emphasis. Another thing that I wanted to go into was this ARPA. You say you're recommending $20 million of new construction for ARPA. I have had the idea that ARPA was having a rather limited application now in the scope of its activity.
Mr. BRYANT. Well, it has changed from the standpoint of its original charter. It is now operated within the office of Dr. York, research and engineering. This is very largely, Mr. Chairman, in
connection with the add-on research and development work that is being done in connection with the Nike-Zeus, above and beyond what has already been involved in the research and development work on that particular project.
Senator STENNIS. I don't look with any disfavor on Nike-Zeus, but I think, members of the committee, that we ought to have Dr. York over also.
This is not just a construction matter but it is a policy matter and it involves other agencies, and I notice where Dr. York has been given new authority too, and we will list, Mr. Clerk, Dr. York as one of our witnesses.
Mr. BRYANT. I think you probably will also want General Betts, who is the Director of ARPA.
Senator STENNIS. Yes. We will get that full picture. Senator Case, may I call on you for any questions?
Senator Case. Mr. Secretary, I was struck by the reference in both your oral statement and the longer detailed statement to section 510. I note on page 32 of your full statement that you again bring attention to the fact that:
The Attorney General has advised the President that these sections violate fundamental constitutional principles and, in view thereof, the President recommended to the Congress in his budget message earlier this year that these sections be repealed. However, during their examination of this section, the House Armed Services Committee revised and expanded this language to that now shown in section 510 of H.R. 10777.
You go on to say that your principal objection to that is that real estate transactions over $50,000 would come to halt when there is a sine die adjournment of the Congress.
In the first place, we have had this provision in the law now for several years, and it has been working. Is it the opinion of the Attorney General that whatever action has been taken has been taken unconstitutionally?
Mr. BRYANT. I believe that is true, sir. So far as the technical argument with respect to the constitutional phases of this, I think it would be well either to discuss it with General Counsel or a member of General Counsel's staff who are prepared I am sure to do it, and/or the Attorney General.
My own approach to it was as indicated in here. I am sure that this committee well realizes the background of fact that created this and the circumstances which have followed since.
I am sure that the chairman in particular, since he was so interested in establishing an agency in the Defense Department that would screen military requirements, particularly in the real estate field, and in the construction field, realizes that at the beginning there was created a Director of Construction and Real Property Management which ultimately worked into the Reorganization Act as an Assistant Secretary's position. It is my recollection from the history preceding the adoption of this requirement of coming into agreement with the committees of the Congress, that it preceded the establishment of this office, and in my opinion a great deal of the concern that was the origin of this requirement of coming into agreement has been taken care of by virtue of the establishment of the office and the assurance which this committee has received not only from our own line item identification of requirements, but the clearances that we go through
in the case of the actual accomplishment of these land transactions which are brought to your attention wherever and whenever possible.
To that extent I felt that we could, as far as I am concerned for the moment, divorce ourselves from a discussion which you may still want from legal counsel of the constitutional aspects of the issue, and talk about it from the standpoint of administration.
What I said in here with respect to the modifying language, or the utlimately adopted language, of the House committee still stands. When Mr. Vinson first proposed a change in the statutory requirement of coming into agreement, he offered a fully acceptable amendment. As a matter of fact, I not only myself was happy and pleased with Mr. Vinson's proposal but I went to the trouble to secure the assent and endorsement of all other interested agencies including the BOB, the members of the White House staff who were interested, and so on.
I do not know just what happened between the time that the socalled Vinson amendment, for identification if you will, was submitted in his bill and the ultimate language now in H.R. 10777; but as it stands at the moment, it seems quite clear to me that there will be the usual run of ordinary transactions which would quickly secure, if we were under the old system, your immediate response and endorsement, but which we would find it very difficult if not impossible to certify as requiring action pending the new congressional session as something which would imperil the Nation if we did not proceed with it.
Under those circumstances, my feeling is that administrative activities would come to a halt, and we might very well find ourselves losing opportunities that we ought to proceed with and, perhaps, involving financial losses and so forth that we would not care to have happen.
Senator CASE. Under the procedure we have had heretofore, have you found it any handicap to submit these transactions to the Armed Services Committee?
Mr. BRYANT. I don't say it is a handicap. I will answer that as honestly as I can, but there is a certain amount of administrative detail, and delays. The point is that it seems to me this is getting again into something which I would prefer not to handle as to the more technical legal aspect, that is, a measure of clearance by a segment of the Congress rather than by an action by the Congress itself pursuant to a desire of the Congress either to change the suggested procedure or to follow a new course, or something like that.
It is a rather sensitive distinction if you will, but we have, in answer to your question—and I have said this before—we have proceeded with our business under the prevailing requirements.
I suspect, although I cannot speak for Mr. Vinson of course, that he must have felt some merit in the President's requirement inserted in his budget message, and sought therefore to establish a system which would more clearly cover the constitutional angles and still permit the Congress to act in the event that a report to the Congress suggested some other congressional action.
Senator Case. I recall that when it was my privilege to serve as chairman of the subcommittee, when you had projects in the interim between sessions of Congress, we adopted a procedure whereby the chairman of the subcommittee was authorized to act in the name of the subcommittee if there was an urgent situation.
I recall that we had a hearing which was at Rapid City once where some of the Air Force people had something they wanted action on, and they wanted to have some discussion of that before they proceeded with it. To the best of my knowledge, during the time that Senator Stennis has been chairman of the subcommittee, there has not been any delay in considering projects when Congress was not in session, if there was any urgency indicated for the project.
Senator STENNIS. I haven't heard of any, if I may interpose at that point, Mr. Secretary. I think we got the papers back to you during the fall months rather rapidly, and I don't recall any instance where there was any delay.
Mr. BRYANT. From an administrative angle, Mr. Chairman, I am obliged, as I have testified here before, to acknowledge the fact of your statement.
That has been something which has been susceptible of accomplishment and performance, but because of the diligence of the committee.
I am not so sure, however, that this is what is really the crux of this matter, Mr. Chairman.
Senator STENNIS. Yes. Well, if I may say at this point, Mr. Secretary, and to you too, Senator Case, as a lawyer I can see where there is an argument, here, for the executive branch of the Government to insist that once the law has been passed and signed by the President and money appropriated, that then it is no longer a congressional matter.
I can see a basis for that, and perhaps the executive branch should keep the record clear until there has been a higher court determination that it is insistent on its prerogatives.
That does not bother me. In fact I think they should keep that avenue open. But as a practical matter I don't believe that just the concurrence here of coming into agreement is a very serious matter constitutionally. The practical side of it is what we have been looking at.
Mr. BRYANT. May I suggest, Mr. Chairman, with all deference, that since I have inserted in my larger statement and suggested it for consideration as a substitute for the existing language in H.R. 10777 that the original amendment offered by Mr. Vinson be given your careful attention, as I am sure it was given by him.
Senator STENNIS. I have not made any study of that language. This is new language to me. We have not gone into it.
Senator Case. Mr. Chairman, of course, there are the two aspects of it. One, the practical working relationship between the Department and the committees, and the other is the constitutional side of it. Now I am not a lawyer, and of course you know I defer to the chairman and all the legal talent around the table, on the committee and in the Department when it comes to those things so far as the legal aspects are concerned. But I always reserve the right as a layman to make some observations and feel that I don't have the inhibitions that perhaps the lawyers do, who are more conversant with precedents and decisions and so forth.
Senator STENNIS. Correct.
Senator CASE. But it has never seemed to me that it was impossible to draft language which would make this procedure fully constitutional and effective. The Congress has repeatedly delegated to the President legislative powers under the reorganization plan, not as the President, not to issue an Executive order, but as an act of the Congress. I have always thought that we could, if we wanted to take this matter of real estate operations and phrase that, in which a committee of the Congress could be made the agent of the Congress, just as the President is the agent of the Congress in formulating a reorganization act, and predicate it upon a finding.
I think all of the reorganization acts have stated that the President should make a finding of efficiency and economy as the basis upon which he could take existing statutes, repeal them, take agencies and throw them together and so forth.
He could write law as the agent of the Congress, if he made a finding that certain things would be accomplished thereby. I have always thought that the real estate sections here in these property transactions could be given sound constitutional foundation in the same manner, even though it is a segment of the Congress that acts.
Certainly if you can divorce the President in his capacity as the Chief Executive and simply as an individual make him the agent of the Congress, you could take a committee of the Congress or you could take the chairman of a committee or you could take any single person who might be a Member of the Congress or anybody else, and make him an agent to do certain things predicated upon certain findings.
Mr. BRYANT. May I say, Senator Case, that no one would be happier than I if a solution could be reached here which was acceptable not only to the Congress but also, of course, to the administration, to the executive branch rather.
I am not a lawyer either, but I can see what you are driving at. I have this suggestion to offer, since I think it might be very difficult for resolution this morning, Mr. Chairman. That is up to you.
Senator STENNIS. Yes, sir.
Mr. BRYANT. That it be given further study, and that our counsel consider some of the statements, and he is present today, that you have made, and in consultation with the executive branch, particularly with the Attorney General, see if this thing can't be welded in such fashion that these conflicting attitudes can be resolved.
This is, of course, from my standpoint eminently desirable. My purpose is to administer the authorizations that we get from this committee and the appropriations that flow from it following those in a fashion that will give us the best operational job.
Senator STENNIS. We will look it over, Mr. Secretary, through impartial eyes, but from the viewpoint of legislators in the final analysis.
Mr. BRYANT. Thank you, sir.
Senator CASE. Mr. Chairman, I think that during the course of years certain principles hae developed which the Defense Department has been inclined to follow in the acquisition and disposal of property.
Certain guidelines have grown out of the referral of these projects back to the Congress. But I am sure that an examination of the record of these proposals from time to time would show that while we have approved in large part the proposal as submitted, that there were many times when the Congress or the committees of the Congress have suggested modifications of the proposals or even indicated conditional approvals that have resulted in saving money, that