B-148902, AUG. 8, 1962

B-148902, AUG. 8, 1962

TO WARD AND PAUL, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 9, 1962, CONCERNING THE TERM OF CONTRACT NO. CAB 186 C AWARDED TO THE CSA REPORTING CORPORATION UNDER INVITATION NO. 1133 FOR VERBATIM REPORTING OF HEARINGS AND DEPOSITIONS HELD OR TAKEN IN THE UNITED STATES BEFORE THE CIVIL AERONAUTICS BOARD, THE FURNISHING OF TRANSCRIPTS THEREOF, AND THE PERFORMANCE OF RELATED SERVICES THEREIN DESCRIBED.

AS INDICATED IN YOUR LETTER THE CONTRACT REQUIRES THE CONTRACTOR TO FURNISH THE SPECIFIED SERVICES "DURING THE PERIOD JULY 1, 1961 THROUGH JUNE 30, 1963, UNLESS THE GOVERNMENT TERMINATES THE CONTRACT AS HEREIN PROVIDED.' YOU STATE, IN EFFECT, THAT SINCE THE TERM OF THE CONTRACT SPANS TWO FISCAL YEARS IT IS CONTRARY TO THE PRINCIPLES OF OUR DECISIONS IN SIMILAR CASES HOLDING THAT BECAUSE OF THE RESTRICTIONS OF 3679 AND 3732, REVISED STATUTES (31 U.S.C. 665 AND 41 U.S.C. 11) THE EXECUTION OF SUCH CONTRACTS UNDER ANNUAL APPROPRIATIONS BEYOND THE EXTENT AND AVAILABILITY OF SUCH APPROPRIATIONS IS PROHIBITED. 24 COMP. GEN. 159; 33 ID. 90; 36 ID. 683; 37 ID. 60; ID. 155. IN THE CIRCUMSTANCES, YOU REQUEST THAT THE CIVIL AERONAUTICS BOARD BE REQUIRED TO ISSUE A NEW INVITATION FOR THE COMING FISCAL YEAR LIMITING THE SERVICES TO BE FURNISHED TO SUCH FISCAL YEAR.

CONTRACT CAB 186 C OBLIGATES THE CONTRACTOR TO FURNISH "UP TO TEN (10) BUT NORMALLY THREE (3) COPIES" TO THE BOARD WITHOUT CHARGE AND "ONE (1) COPY ONLY * * * TO BE FURNISHED WITHOUT CHARGE, UPON REQUEST, TO OTHER FEDERAL AGENCIES DIRECTLY PARTICIPATING IN THE HEARING.' THE CONTRACT FURTHER PROVIDES THAT ADDITIONAL COPIES OF ANY TRANSCRIPT TO BE SOLD TO THE BOARD AND TRANSCRIPTS OF NONCONFIDENTIAL PROCEEDINGS TO BE SOLD TO THE PUBLIC WOULD SELL AT THE BASIC PRICE OF 30 CENTS PER PAGE. THE TERM "BASIC PRICE" IS DEFINED AS MEANING THE PRICE FOR "ORDINARY" COPY OF TRANSCRIPTS OF HEARINGS HELD IN THE WASHINGTON AREA AND IT IS PROVIDED THAT A SURCHARGE OF NOT TO EXCEED 50 PERCENT OF THE BASIC PRICE MAY BE ASSESSED FOR COPIES OF TRANSCRIPTS OF HEARINGS HELD OUTSIDE OF WASHINGTON.

SECTION 3679, REVISED STATUTES, AS AMENDED, SO FAR AS HERE MATERIAL, PROHIBITS ANY EXECUTIVE DEPARTMENT OR OTHER GOVERNMENT ESTABLISHMENT FROM INVOLVING THE GOVERNMENT IN ANY CONTRACT OR OTHER OBLIGATION FOR THE FUTURE PAYMENT OF MONEY IN EXCESS OF APPROPRIATIONS FOR THE FUTURE PAYMENT OF MONEY IN EXCESS OF APPROPRIATIONS FOR THE THEN CURRENT FISCAL YEAR, UNLESS SUCH CONTRACT OR OTHER OBLIGATION IS AUTHORIZED BY LAW. THIS PROHIBITION DOES NOT APPLY TO THE TYPE OF CONTRACT HERE INVOLVED SINCE SUCH CONTRACT DOES NOT INVOLVE THE GOVERNMENT IN OBLIGATIONS FOR THE FUTURE PAYMENT OF MONEY UNLESS MORE THAN TEN COPIES ARE FURNISHED THE BOARD--- A SITUATION WHICH THE BOARD HAS REPORTED INFORMALLY HAS NEVER OCCURRED.

THE SAME IS TRUE OF SECTION 3732, REVISED STATUTES WHICH PROHIBITS THE MAKING OF CONTRACTS ,UNLESS THE SAME IS AUTHORIZED BY LAW OR IS UNDER AN APPROPRIATION ADEQUATE TO ITS FULFILLMENT.' THE INVOLVED CONTRACT DOES NOT BECOME A CONTRACT INSOFAR AS ANY OBLIGATION TO PAY MONEY IS CONCERNED, UNLESS THE CONTRACTOR SHOULD FURNISH THE BOARD MORE THAN 10 COPIES--- A SITUATION WHICH AS INDICATED ABOVE THE BOARD HAS INFORMALLY REPORTED HAS NEVER OCCURRED.

SECTION 3735, REVISED STATUTES, 41 U.S.C. 13, IS THE ONLY OTHER STATUTE WHICH MIGHT BE CONSIDERED AS LIMITING THE TERM OF THE INVOLVED CONTRACT. THAT STATUTE PROVIDES THAT IT SHALL BE UNLAWFUL FOR THE EXECUTIVE DEPARTMENTS TO MAKE CONTRACTS FOR STATIONERY OR OTHER SUPPLIES FOR A LONGER TERM THAN ONE YEAR. SECTION 310 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 41 U.S.C. 260, PROVIDES, IN SUBSECTION (A) THAT SECTION 3735, REVISED STATUTES SHALL NOT APPLY TO THE PROCUREMENT OF PROPERTY OR SERVICES (1) BY GENERAL SERVICES ADMINISTRATION, OR (2) WITHIN THE SCOPE OF AUTHORITY DELEGATED BY THE ADMINISTRATOR TO ANY OTHER EXECUTIVE AGENCY. BY DELEGATION OF AUTHORITY NUMBERED 363 (24 FR 1921, MARCH 17, 1959) THE ADMINISTRATOR OF GSA DELEGATED TO ALL EXECUTIVE AGENCIES EXCEPT CERTAIN AGENCIES NOT HERE MATERIAL, AUTHORITY TO UTILIZE THE PROVISIONS OF TITLE III OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 WHEN PROCURING PROPERTY AND SERVICES, SUBJECT TO THE CONDITIONS THEREIN SET FORTH. WHILE THIS DELEGATION HAS BEEN SUPERSEDED BY A NEW DELEGATION (NO. 410, MARCH 26, 1962, 25 FR 3017) THE NEW DELEGATION SPECIFICALLY VALIDATED TRANSACTIONS INITIATED PRIOR TO ITS EFFECTIVE DATE.

FOR THE FOREGOING REASONS YOUR REQUEST THAT THE BOARD BE REQUIRED TO ISSUE A NEW INVITATION FOR THE COMING FISCAL YEAR AND THAT THE PERIOD OF THE CONTRACT BE LIMITED TO SUCH FISCAL YEAR MUST BE DENIED. HOWEVER, WE ARE TODAY ADVISING THE CHAIRMAN OF THE CIVIL AERONAUTICS BOARD OF OUR OPINION THAT IT WOULD BE IN THE BEST INTERESTS OF BOTH THE GOVERNMENT AND THE INDUSTRY TO LIMIT THE TERM OF FUTURE CONTRACTS TO ONE FISCAL YEAR.