B-164358, NOV. 18, 1969

B-164358, NOV. 18, 1969

STENOGRAPHIC REPORTING--FEDERAL PROCUREMENT REGULATIONS APPLICABILITY IN VIEW OF SPECIFIC TERMS OF FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 WHICH PROVIDES THAT ADMINISTRATOR OF GENERAL SERVICES ADMINISTRATION SHALL "IN RESPECT OF EXECUTIVE AGENCIES * * * PRESCRIBE POLICIES AND METHODS OF PROCUREMENT AND SUPPLY OF PERSONAL PROPERTY AND NONPERSONAL SERVICES, INCLUDING NONRELATED FUNCTIONS, SUCH AS CONTRACTING" AND DEFINES "EXECUTIVE AGENCY" AS INCLUDING ANY EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT IN EXECUTIVE BRANCH OF GOVERNMENT, SINCE TAX COURT IS "AN INDEPENDENT AGENCY IN THE EXECUTIVE BRANCH OF THE GOVERNMENT" (20 U.S.C. 7441), EVEN THOUGH 26 U.S.C. 7458 AUTHORIZES TAX COURT TO FIX TERMS AND CONDITIONS UNDER WHICH TRANSCRIPTS WILL BE SUPPLIED BY CONTRACTORS, COURT IS REQUIRED TO FOLLOW FEDERAL PROCUREMENT REGULATIONS WITH RESPECT TO STENOGRAPHIC REPORTING SERVICES CONTRACTS.

TO MR. OTTO W. SCHOENFELDER:

I AM SORRY FOR THE DELAY IN REPLYING TO YOUR LETTER OF MARCH 19, 1969, CONCERNING THE APPLICABILITY OF THE FEDERAL PROCUREMENT REGULATIONS TO THE TAX COURT WITH RESPECT TO CONTRACTS FOR STENOGRAPHIC REPORTING SERVICES. UNFORTUNATELY YOUR LETTER PLUS A MEMORANDUM FROM OUR ATTORNEYS WAS MIXED AMONG SOME OTHER PAPERS AND DID NOT COME TO MY ATTENTION UNTIL RECENTLY.

AS I UNDERSTAND IT YOUR POSITION IS THAT UNDER 26 U.S.C. 7458 THE COURT IS AUTHORIZED TO CONTRACT FOR AND TO FIX THE TERMS AND CONDITIONS UNDER WHICH STENOGRAPHIC TRANSCRIPTS OF PROCEEDINGS WILL BE SUPPLIED, AND THAT THROUGHOUT THE YEARS, BEFORE AND SUBSEQUENT TO THE ISSUANCE OF THE FEDERAL PROCUREMENT REGULATIONS 1-1.009 CONCERNING DEVIATIONS FROM PRESCRIBED STANDARD FORMS, THE COURT HAS ACTED UNDER THE STATUTORY AUTHORITY AND ASSUMED THAT SUCH AUTHORITY CONTROLLED THE CONTRACT PROCEDURES APPLICABLE TO THE PROCUREMENT OF STENOGRAPHIC REPORTING SERVICES. FURTHER THAT THE TAX COURT IS A "FEDERAL COURT" AND IS EXEMPT FROM THE ADMINISTRATIVE PROCEDURE ACT UNDER THE SECTION 2 EXCLUSION OF "COURTS". YOU SUGGEST THAT THE SITUATION IS SIMILAR TO THAT WHICH PERMITS THE TAX COURT AN EXEMPTION FROM THE APPLICATION OF THE ADMINISTRATIVE PROCEDURE ACT.

THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 PROVIDES THAT THE ADMINISTRATOR OF GSA SHALL "IN RESPECT OF EXECUTIVE AGENCIES * * * PRESCRIBE POLICIES AND METHODS OF PROCUREMENT AND SUPPLY OF PERSONAL PROPERTY AND NONPERSONAL SERVICES, INCLUDING RELATED FUNCTIONS SUCH AS CONTRACTING.' 40 U.S.C. 481 (A). THE ACT DEFINES "EXECUTIVE AGENCY" AS INCLUDING ANY EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT IN THE EXECUTIVE BRANCH OF THE GOVERNMENT. 40 U.S.C. 472. SECTION 7441 OF THE INTERNAL REVENUE CODE OF 1954, 26 U.S.C. 7441, STATES THAT THE TAX COURT OF THE UNITED STATES IS "AN INDEPENDENT AGENCY IN THE EXECUTIVE BRANCH OF THE GOVERNMENT.' ALTHOUGH 26 U.S.C. 7458 STATES THAT THE TAX COURT IS AUTHORIZED TO FIX THE TERMS AND CONDITIONS UNDER WHICH TRANSCRIPTS WILL BE SUPPLIED BY CONTRACTORS, 40 U.S.C. 747 SAYS THAT THE AUTHORITY CONFERRED BY 40 U.S.C. 481 (A) SHALL BE IN ADDITION AND PARAMOUNT TO ANY AUTHORITY CONFERRED BY ANY OTHER LAW AND SHALL NOT BE SUBJECT TO THE PROVISIONS OF ANY LAW INCONSISTENT WITH IT. SECTION 474 SAYS FURTHER THAT IT SHALL NOT IMPAIR OR AFFECT THE AUTHORITY OF CERTAIN NAMED AGENCIES. HOWEVER, THE TAX COURT IS NOT ONE OF THE NAMED AGENCIES.

UNDER THE AUTHORITY OF THE FEDERAL PROPERTY ACT, GSA HAS PRESCRIBED THE FEDERAL PROCUREMENT REGULATIONS. SECTION 1-1.202 OF THE REGULATIONS DEFINES "EXECUTIVE AGENCY" SUBSTANTIALLY THE SAME AS 40 U.S.C. 472. SECTION 1-16.000 PRESCRIBES FORMS FOR USE BY "EXECUTIVE AGENCIES" IN CONNECTION WITH THE PROCUREMENT OF SUPPLIES, NONPERSONAL SERVICES AND CONSTRUCTION. AMONG THE PRESCRIBED FORMS ARE STANDARD FORM 33 AND 33A PRESCRIBED FOR SUPPLIES AND SERVICES. THE METHOD OF OBTAINING DEVIATIONS FROM THE STANDARD FORMS ARE PRESCRIBED IN SECTION 1-1.009.

IN VIEW OF THE SPECIFIC TERMS OF THE PROPERTY ACT IT SEEMS TO US THAT NOTWITHSTANDING 26 U.S.C. 7458 THE TAX COURT IS REQUIRED TO FOLLOW THE FEDERAL PROCUREMENT REGULATIONS WITH RESPECT TO CONTRACTS FOR STENOGRAPHIC REPORTING SERVICES. CONSEQUENTLY, IF THE COURT DOES NOT WANT TO FOLLOW THE GSA PRESCRIBED FORMS AUTHORITY TO DEVIATE SHOULD BE REQUESTED.