B-109776, FEB. 28, 1958

B-109776, FEB. 28, 1958

TO MR. JACOB SEIDENBERG, EXECUTIVE DIRECTOR, THE PRESIDENT'S COMMITTEE ON GOVERNMENT CONTRACTS:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 27, 1957, FURNISHING A COPY OF A LETTER DATED DECEMBER 20, 1957, FROM THE DEPARTMENT OF DEFENSE, ADDRESSED TO YOU, CONCERNING THE QUESTION OF THE INCLUSION OF THE STANDARD NONDISCRIMINATION CLAUSE AS PROVIDED IN EXECUTIVE ORDER NO. 10557 IN ALL GOVERNMENT BILLS OF LADING.

WE NOTE THAT THE DEPARTMENT OF DEFENSE HAS CONCLUDED THAT IT WOULD NOT BE APPROPRIATE TO INCLUDE THE NONDISCRIMINATION CLAUSE IN GOVERNMENT BILLS OF LADING USED BY THE DEPARTMENT UNLESS SIMILAR PROVISIONS ARE CONTAINED IN THE BILLS OF LADING USED BY OTHER DEPARTMENTS AND AGENCIES OF THE FEDERAL GOVERNMENT. WE CONCUR IN THE VIEW THAT UNIFORMITY IS DESIRABLE. THE LETTER FROM THE DEPARTMENT OF DEFENSE THEN REFERS TO THE FACT THAT FOR YEARS THE COMPTROLLER GENERAL HAS PRESCRIBED THE CONTENTS OF THE GOVERNMENT BILL OF LADING, AND STATES THAT "WITHOUT HIS APPROVAL THIS DEPARTMENT WOULD BE UNABLE TO VARY THE TERMS AND CONDITIONS OF THE BILLS IT USES.' THERE FOLLOWS A SUGGESTION THAT THIS MATTER BE REFERRED TO THE COMPTROLLER GENERAL, WITH THE VIEW TO THE ESTABLISHMENT OF A GOVERNMENT- WIDE POLICY FOR THE INCLUSION OF THE STANDARD NONDISCRIMINATION CLAUSE IN THE GOVERNMENT BILL OF LADING.

OUR AUTHORITY TO PRESCRIBE STANDARD FORMS FOR USE BY THE EXECUTIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT STEMS PRIMARILY FROM THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, 42 STAT. 25, 31 U.S.C. 49, AS SUBSEQUENTLY AMENDED BY THE PROVISIONS OF THE BUDGET AND ACCOUNTING PROCEDURES ACT OF 1950, APPROVED SEPTEMBER 12, 1950, 64 STAT. 834, ET SEQ. SEE PARTICULARLY, TITLE 1, PART II, SECTION 112 OF THAT ACT, 64 STAT. 836, 31 U.S.C. 66A. IN ADDITION, THE COMPTROLLER GENERAL SHALL MAKE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY FOR CARRYING ON THE WORK OF THE GENERAL ACCOUNTING OFFICE. 31 U.S.C. 52 (F). THIS AUTHORITY TO PRESCRIBE STANDARD FORMS, PRACTICES, PROCEDURES, AND REGULATIONS CONCERNING ADMINISTRATIVE APPROPRIATION AND FUND ACCOUNTING, HOWEVER, IS NOT INTENDED TO LIMIT THE AUTHORITY VESTED IN OTHER OFFICERS OF THE GOVERNMENT TO MAKE LAWFUL CONTRACTS IN ITS BEHALF. SEE 36 OP.ATTY.GEN. 289. THE AUTHORITY TO CONTRACT WITH COMMON CARRIERS OF PROPERTY FOR TRANSPORTATION SERVICES AND TO NEGOTIATE THE TERMS AND CONDITIONS UNDER WHICH SUCH SERVICES WILL BE PERFORMED FOR THE UNITED STATES BELONGS TO THE GENERAL SERVICES ADMINISTRATION AND THE DEPARTMENT OF DEFENSE, AMONG OTHER GOVERNMENT AGENCIES AND DEPARTMENTS. SEE, FOR EXAMPLE, SECTION 201 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 383, 40 U.S.C. 481.

ACCORDINGLY, WHILE WE HAVE EXERCISED OUR AUTHORITY TO PRESCRIBE STANDARD FORMS FOR THE PROCUREMENT OF TRANSPORTATION SERVICES, AND HAVE ISSUED GENERAL REGULATIONS FOR THE GUIDANCE OF THE EXECUTIVE DEPARTMENTS AND AGENCIES IN THE USE OF SUCH FORMS, SUCH AS OUR GENERAL REGULATIONS NO. 97- REVISED, DATED JANUARY 21, 1946, 25 COMP. GEN. 924, CONCERNING THE GOVERNMENT BILL OF LADING AND RELATED FORMS, THE TERMS AND CONDITIONS GOVERNING THE FURNISHING OF SUCH SERVICES ARE PRIMARILY DETERMINED BY THE DEPARTMENTS AND AGENCIES TO THE EXTENT THAT THOSE TERMS AND CONDITIONS ARE NOT IN CONFLICT WITH APPROPRIATION LIMITATIONS AND OUR AUDITING AND ACCOUNTING REQUIREMENTS. THE UNDERLYING CONTRACTUAL DOCUMENT IN MANY CASES IS A SPECIAL QUOTATION OR TENDER SUBMITTED BY THE CARRIERS PURSUANT TO SECTION 22 (49 U.S.C. 22) AND COMPARABLE PROVISIONS OF THE INTERSTATE COMMERCE ACT.

THEREFORE, WHILE WE APPRECIATE THE PROBLEMS BEFORE YOUR COMMITTEE IN ITS EFFORTS TO ATTAIN ITS OBJECTIVES, WE ARE NOT, BY REASON OF OUR FUNCTIONS AND DUTIES UNDER THE LAW, IN A POSITION TO REQUIRE, UNILATERALLY, THE INCLUSION OF THE NONDISCRIMINATION CLAUSE IN THE GOVERNMENT BILL OF LADING OR TO ARRANGE FOR THE CONCURRENCE OF THE MANY INTERESTED CARRIERS IN A MATTER THAT IS ESSENTIALLY ADMINISTRATIVE IN CHARACTER.

IF YOU SO DESIRE, WE SHALL JOIN, IN THE CAPACITY OF OBSERVERS, IN ANY DISCUSSIONS THAT MAY BE ARRANGED FOR THE PURPOSE OF ESTABLISHING THE ACCEPTABILITY AND INCLUSION OF THE NONDISCRIMINATION CLAUSE IN GOVERNMENT BILLS OF LADING.