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the public interest he may properly, as was done here, invoke a claim of privilege on the return of the subpoena. Upon receiving a claim of privilege from the Chief Executive, it became the further duty of the District Court to treat the subpoenaed material as presumptively privileged and to require the Special Prosecutor to demonstrate that the presidential material was "essential to the justice of the (pending criminal] case." United States v. Burr, supra, at 192. Here the District Court treated the material as presumptively privileged, proceeded to find that the Special Prosecutor had made a sufficient showing to rebut the presumption and ordered an in camera examination of the subpoenaed material. On the basis of our examination of the record we are un able to conclude that the District Court erred in ordering the inspection. Accordingly we affirm the order of the District Court that subpoenaed materials be transmitted to that court. We now turn to the important question of the District Court's responsibilities in conduction the in camera examination of presidential materials or communications delivered under the compulsion of the subpoena duces tecum.
Enforcement of the subpoena duces tecum was stayed pending this Court's resolution of the issues raised by the petitions for certiorari. Those issues now having been disposed of, the matter of implementation will rest with the District Court. "[T]he guard, furnished to (the President) to protect him from being harassed by vexations and unnecessary subpoenas, is to be looked for in the conduct of the district] court after the subpoenas have issued; not in any circumstances which is to precede their being issued." United States v. Burr, supra, at 34. Statements that meet the test of admissibility and relevance must be isolated; all other material must be excised. At this stage the District Court is not limited to representations of the Special Prosecutor as to the evidence sought by the subpoena; the material will be available to the District Court. It is elementary that in camera inspection of evidence is always a procedure calling for scrupulous protection against any release or publication of material not found by the court, at that stage, probably admissible in evidence and relevant to the issues of the trial for which it is sought. That being true of an ordinary situation, it is obvious that the District Court has a very heavy responsibility to see to it that presidential conversations, which are either not relevant or not admissible, are accorded that high degree of respect due the President of the United States. Mr. Chief Justice Marshall sitting as a trial judge in the Burr case, supra, was extraordinarily careful to point out that:
"[I]n no case of this kind would a Court be required to proceed against the President as against an ordinary individual." United states v. Burr, 25 Fed Cases 187, 191 (No. 14,694).
Marshall's statement cannot be read to me an in any sense that a President is above the law, but relates to the singularly unique role under Art II of a President's communications and activities, related to the performance of duties under that Article. Moreover
er, a President's communications and activities encompass a vastly wider range of sensitive material than would be true of any "ordinary individual." It is therefore necessary in the public interest to afford presidential confidentiality the greatest protection consistent with the fair administration of justice. The need for confidentiality even as to idle conversations with associates in which casual reference might be made concerning political leaders within the country or foreign statesmen is too obvious to call for further treatment. We have no doubt that the District Judge will at all times accord to presidential records that high degree of de ference suggested in United States v. Burr, supra, and will discharge his responsibility to see to it that until released to the Special Prosecutor no in camera material is revealed to anyone. This burden applies with even greater force to excised material; once the decision is made to excise, the material is restored to its privileged status and should be returned under seal to its lawful custodian.
Since this matter came before the Court during the pendency of a criminal prosecution, and on representations that time is of the essence,
the mandate shall issue forthwith.
Mr. Justice Rehnquist took no part in the consideration or decision of these cases.
To Rockhill, Vanderveer, Kennedy & Lee, 6 February 1961:
We have your letter of 8 December 1960, with enclosures, submitting on behalf of J.D. Wallace & Company, Inc., a claim against the United States in the amount of $49,956.82, arising out of the cancellation of contract No. AF 09(603) -35205, awarded 26 January 1960, by the Warner Robbins Air Materiel Area, United States Air Force, for the procurement of 78 radial overarm saws.
Bids for the procurement were solicited under invitation No. 09-603-60635, issued 8 September 1959. When bids were opened as scheduled on 9 October 1959, it was found that the Wallace bid was accompanied by a continuation sheet, forming a part thereof, which showed how the bidder proposed to meet certain of the requirements imposed by the specifications. After opening, the bidders were advised that the procurement had been canceled. Later, however, the procurement office asked the bidders if they would be willing to reinstate their bids. By letter of 8 December 1959, the Wallace Company so agreed. It appears the information in the continuation sheet of the Wallace bid caused some question as to its responsiveness. On 10 December 1959, the Wallace firm sent a telegram to the contracting officer stating that the firm proposed to furnish an item in accordance with the specifications contained in the invitation. Award was made to Wallace on 26 January 1960, on the basis of the specifications as issued.
That award was protested and upon due consideration, we found that the bid originally submitted by Wallace was not responsive to the specifications in at least two aspects--the means of preventing movement of the cutting head relative to the upright column and the power brake. This determination appears to have been borne out by the failure of the prototype submitted in accordance with the terms of the contract to meet the specifications for these and other reasons. Accordingly, we concluded in our decision of 13 June 1960 (39 Comp. Gen. 832), that the Wallace bid was not responsive to the invitation, that the award was erroneous and should be disavowed by the United States, and that the contractor should be advised that no further deliveries would be accepted.
The contract was canceled on or about 23 June 1960. At that time, 18 of the saws had been delivered, accepted and, as we understand, paid for at the contract price. The claim submitted represents actual costs incurred in obtaining supplies and otherwise preparing for the manufacture of the 60 saws undelivered at the time of cancellation. We understand, as indicated in the enclosures to your letter, that the claim is subject to reduction by any amount realized from other dispositions of the materials,
The procurement was undertaken pursuant to 10 U.S.C. 2304(a), which provides that with certain exceptions, not here material, purchases of and contracts for property or services of the kind under consideration shall be made by formal advertising. It is further provided at 10 U.S.C. 2305(c) that-
* * * Awards shall be made with reasonable promptness by giving written notice to the responsible bidder whose bid conforms to the invitation and will be most advantageous to the United States, price and other factors considered. * * * (Italics supplied.)
Where, as in this case, a contract is required by statute to be awarded pursuant to formal advertising, a bid which varies materially from the specifications must be rejected. 63 C.J.S. Municipal Corporations sec. 1000; 43 Am. Jur. Public Works and Contracts sec. 40; William A. Carey & Co. v. Borough of Fair Lawn (N.J. 1955), 117 A, 2d 140; 38 Op. Atty. Gen. 555; Tufano v. Borough of Cliffside Park (N.J. 1933), 165 A. 628; International Motor Co. v. Mayor, etc. of Plainfield (N.J. 1921), 115 A. 391; and Sutton v. City of St. Paul (Minn, 1951), 48 N.W. 28 436. In the cited opinion of the Attorney General it was stated:
It is also well established that if in response to
A bid which varies materially from the terms of the invitation may not be modified after opening to conform to the specifications. 63 C.J.S. Municipal Corporations sec. 1003; 10 McQuillin on Municipal Corporations, 3d ed., sec. 29.65.
A contract required to be let pursuant to competitive bid procedures, which is awarded on a bid containing material variances from the invitation, is void ab initio. Hudson City Contract Co. v. Jersey City Incinerator Authority (N.J. 1955), 111 A. 2d 385. Such contract is invalid and confers no rights on the purported contractor. Tupfer v, Board of Chosen Freeholders (N.J. 1917), 100 A. 927; Hornung v. Town of West New York (N.J. 1911), 81 A. 1116; Case v. Inhabitants of Trenton (N.J. 1909), 74 A. 672; Konig v. Mayor, etc., of Baltimore (Md. 1915), 95 A. 478; Diamond v. Mankato (Minn. 1903), 93 N.W. 911; Le Tourneau v. Hugo (Minn, 1903), 97 N.W. 115; Collier v. City of St. Paul (Minn. 1947), 26 N.W. 2d 835; United States v. Elliott (1911), 223 U.S. 524; 20 Op. Atty. Gen. 496; New York Mail & Newspaper Trans. Co. v. United States (1957), 139 Ct. ci. 751.
In the case of United States v. Elliott, supra, an invitation had been issued incorporating certain specifications. The low bid as submitted contained exceptions to those specifications. After correspondence between the contracting office and the bidder as to the intent of the exceptions, a contract was entered into incorporating the exceptions. After award, the contractor submitted detailed drawings which, it was determined, depicted a product materially deficient from the viewpoint of the Government's needs.
After cancellation, the contractor sued for breach of contract. The Supreme Court held that if the original specifications were to be followed there was not contract, since the bidder had not offered such performance, and if the modifications offered by the bidder were to be regarded as having been adopted there was no contract "* * * since it would then came to pass that the contract was so erroneous to and destructive of the advertised proposals as to nullify them, and therefore cause it to result that the contract was one made without the competitive bidding which was necessary to give it validity."
In the case of Konig v. Mayor, etc., of Baltimore, supra, there was considered the validity of a contract awarded under the terms of a statute requiring award to the lowest responsible bidder. The invitation solicited bids on alternative items with the contracting officer reserving the right to accept either. The low bidder submitted a bid on the first alternate with the provision that if this alternate could not be employed without obtaining a license from the patent holder he could then perform in accordance with a second alternate. The bidder was awarded a contract which provided that the city retained the option at the appropriate time to direct the use of either alternative. The court held that the contract was "utterly void" since the bid submitted was not in conformity with the specifications.
In the case of Coller v. City of St. Paul, supra, the statute required award to the lowest responsible bidder. An invitation had been issued for the procurement and installation of street parking meters. The low bidder offered an alternative method of installing certain of the meters and took exception to the specification requirement that the contractor pay the salary of the City's service man for six months. After opening, the low bidder withdrew the exceptions and offered to perform exactly in accordance with the invitation; and on that basis he was awarded the contract. The court held that where, as here, there is a material variance between the bid and the invitation, the bid must be rejected. The court further found that the variance in this case was material in that it would have given the bidder a substantial advantage over the other bidders since the alternate method offered would save approximately $2,100 out of a total price of $69,000. The court specifically held also that no bid could be modified after opening, even though no fraud or wrongdoing had been shown, and that the award to the low bidder under the circumstances was "void". As to the applicability of the rule regardless of the good faith of the parties see also Diamond v. City of Mankato, supra, and Konig v. Mayor, etc., of Baltimore, supra. As to the materiality of the variance of the specifications, see also 63 C.J.S. Municipal Corporations, sec. 1000.
In this instance, we believe that the exceptions to the specifications included in the Wallace bid must be regarded as material variances since they would have resulted, if employed, in a reduction in production cost, thus giving the low bidder a decided competitive advantage over bidders responding to the specifications. In accordance with the foregoing authorities we must conclude, as we held in our decision of 13 June 1960, 39 Comp. Gen. 832, that no valid contract ever existed.