A-9778, JUNE 3, 1925, 4 COMP. GEN. 1010

A-9778, JUNE 3, 1925, 4 COMP. GEN. 1010

NATIONAL GUARD CONTRACTS UNDER SECTION 1661, REVISED STATUTES, AS AMENDED BY SECTION 3 OF THE ACT OF JUNE 22, 1906, 34 STAT. 450, CONTRACTS FOR THE EXPENDITURE OF FEDERAL FUNDS BY PROPERTY AND DISBURSING OFFICERS OF THE NATIONAL GUARD OF THE RESPECTIVE STATES ARE REQUIRED TO BE MADE AS SIMILAR CONTRACTS ARE MADE FOR THE REGULAR ARMY. THEY MUST BE MADE UNDER THE DIRECTION OF THE SECRETARY OF WAR AND MUST COMPLY WITH ALL FEDERAL REQUIREMENTS AND, AS FEDERAL CONTRACTS, BE FILED IN THE GENERAL ACCOUNTING OFFICE IN SUPPORT OF VOUCHERS MAKING PAYMENTS THEREUNDER. THE REQUIREMENTS OF SECTIONS 3744 AND 3747, REVISED STATUTES, MUST BE OBSERVED, AND THE OFFICER ENTERING INTO NATIONAL GUARD CONTRACTS MUST BE APPOINTED BY THE SECRETARY OF WAR OR BY THE CHIEFS OF PROCUREMENT BUREAUS OF THE WAR DEPARTMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, JUNE 3, 1925:

THERE HAS BEEN RECEIVED YOUR LETTER DATED MAY 22, 1925, IN REFERENCE TO A LETTER FROM THIS OFFICE DATED APRIL 14, 1925, WITH RESPECT TO THE FAILURE TO EXECUTE AND FURNISHED THE GENERAL ACCOUNTING OFFICE CONTRACTS FOR EXPENDITURE OF FEDERAL FUNDS MADE BY THE PROPERTY AND DISBURSING OFFICERS OF THE NATIONAL GUARD OF THE RESPECTIVE STATES. YOU STATE THAT "THE NATIONAL GUARD IS NOT A PART OF THE ARMY OF THE UNITED STATES EXCEPT WHEN IT IS IN FEDERAL SERVICE," AND THAT---

WHEN FUNDS APPROPRIATED FOR THE NATIONAL GUARD ARE APPORTIONED TO A STATE AND TURNED OVER TO IT ON REQUISITION OF THE GOVERNOR UNDER THE PROVISIONS OF SECTION 67, NATIONAL DEFENSE ACT, AND DISBURSEMENT THEREOF IS TO BE MADE FOR AN AUTHORIZED PROJECT, THE CONTRACT MADE TO CARRY OUT SUCH PROJECT IS ENTERED INTO BY THE PROPERTY AND DISBURSING OFFICER OF THE STATE. IN THE PAST THE POLICY OF NEITHER THE MILITIA BUREAU NOR THE MILITARY DIVISION OF THE GENERAL ACCOUNTING OFFICE HAS BEEN CONSISTENT. LEASES FOR THE ACQUISITION OF RIFLE RANGES, MANEUVER AND CAMP SITES HAVE UNIFORMLY BEEN MADE ON FORM NO. 17, MILITIA BUREAU, WHICH SPECIFICALLY PROVIDES THAT THE PROPERTY AND DISBURSING OFFICER CONCERNED ACTS FOR AND ON BEHALF OF HIS STATE. SOME OTHER CONTRACTS HAVE BEEN MADE IN THE NAME OF THE UNITED STATES, OTHERS IN THE NAME OF THE STATE CONCERNED, AND STILL OTHERS IN THE NAME OF BOTH THE UNITED STATES AND THE STATE. SOME HAVE BEEN EXECUTED ON REGULAR WAR DEPARTMENT FORMS, SUCH AS ARE USED IN THE REGULAR ARMY, AND OTHERS HAVE BEEN SPECIALLY DRAFTED. IN SOME CASES ALL OF THE PROVISIONS OF LAW AND REGULATIONS WHICH RELATE TO THE EXECUTION OF ARMY CONTRACTS HAVE BEEN CARRIED OUT, WHILE IN OTHER CASES THEY HAVE NOT. THERE HAS BEEN CONSIDERABLE CONFUSION IN THE PRACTICE OF THE MILITIA BUREAU, THE MILITARY DIVISION OF THE GENERAL ACCOUNTING OFFICE, AND AMONG THE STATES, THOUGH IN THEORY THE MILITIA BUREAU HAS BEEN OF THE OPINION THAT THE CONTRACTS ARE STATE CONTRACTS.

IN ORDER THAT THIS IMPORTANT MATTER MAY BE SETTLED, YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

(A) ARE CONTRACTS FOR THE DISBURSEMENT OF FEDERAL FUNDS, APPROPRIATED FOR THE SUPPORT OF THE NATIONAL GUARD, APPORTIONED TO THE STATES, AND PAID OVER TO THE PROPERTY AND DISBURSING OFFICER THEREOF, TO BE CONSIDERED AS FEDERAL OR STATE CONTRACTS?

(B) MAY SUCH CONTRACTS BE ENTERED INTO BY ANY OFFICER DULY DELEGATED BY THE GOVERNOR OF THE STATE CONCERNED, OR IS THE PROPERTY AND DISBURSING OFFICER OF THE STATE THE ONLY PERSON WHO MAY EXECUTE SUCH CONTRACTS?

(C) IF YOU HOLD THAT SUCH CONTRACTS ARE STATE CONTRACTS, ARE THE PROVISIONS OF LAW REFERRED TO BY THE CHIEF MILITARY DIVISION IN HIS LETTER, APPLICABLE THERETO, AND ARE THERE ANY OTHER PROVISIONS OF LAW APPLICABLE?

IN ANSWERING THESE QUESTIONS YOU ARE REQUESTED TO DISREGARD THE PROVISIONS OF ARMY AND NATIONAL GUARD REGULATIONS. THE NATIONAL GUARD REGULATIONS ARE NOW BEING REVISED AND IT IS URGED THAT YOUR DECISION BE EXPEDITED, SO THAT IT MAY BE MADE THE BASIS OF APPROPRIATE REGULATIONS TO BE INCLUDED IN SUCH REVISION.

SECTION 67 OF THE ACT OF JUNE 3, 1916, 39 STAT. 199, AS AMENDED, AMONG OTHER THINGS PROVIDES THAT A SUM OF MONEY SHALL THEREAFTER BE APPROPRIATED ANNUALLY FOR THE SUPPORT OF THE NATIONAL GUARD, INCLUDING THE EXPENSE OF PROVIDING ARMS, ORDNANCE STORES, QUARTERMASTER STORES, CAMP EQUIPAGE, AND ALL OTHER MILITARY SUPPLIES FOR ISSUE TO THE NATIONAL GUARD, TOGETHER WITH SUCH OTHER EXPENSE PERTAINING TO SAID GUARD AS WAS THEN OR MAY THEREAFTER BE AUTHORIZED BY LAW. SAID SECTION FURTHER PROVIDES THAT THE SUM OF MONEY SO APPROPRIATED SHALL BE APPORTIONED AMONG THE STATES AND TERRITORIES; THAT THE APPORTIONMENT SHALL BE PAID OVER TO THE PROPERTY AND DISBURSING OFFICERS OF THE RESPECTIVE STATES AND TERRITORIES UPON PROPER REQUISITIONS; AND THAT SAID PROPERTY AND DISBURSING OFFICER SHALL RENDER THROUGH THE WAR DEPARTMENT SUCH ACCOUNTS FOR THE FEDERAL FUNDS PAID OVER TO THEM AS MAY BE REQUIRED BY THE ACCOUNTING OFFICERS OF THE UNITED STATES. SECTION 1661, REVISED STATUTES, AS AMENDED BY SECTION 3 OF THE ACT OF JUNE 22, 1906, 34 STAT. 450, PROVIDES:

THAT THE PURCHASE OR MANUFACTURE OF ARMS, ORDNANCE STORES, QUARTERMASTER STORES, AND CAMP EQUIPAGE FOR THE MILITIA UNDER THE PROVISIONS OF THIS ACT SHALL BE MADE UNDER THE DIRECTION OF THE SECRETARY OF WAR, AS SUCH ARMS, ORDNANCE AND QUARTERMASTER STORES, AND CAMP EQUIPAGE ARE NOW MANUFACTURED OR OTHERWISE PROVIDED FOR THE USE OF THE REGULAR ARMY, AND THEY SHALL BE RECEIPTED FOR AND SHALL REMAIN THE PROPERTY OF THE UNITED STATES, AND BE ANNUALLY ACCOUNTED FOR BY THE GOVERNORS OF THE STATES AND TERRITORIES AND BY THE COMMANDING GENERAL OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA, FOR WHICH PURPOSE THE SECRETARY OF WAR SHALL PRESCRIBE AND SUPPLY THE NECESSARY BLANKS AND MAKE SUCH REGULATIONS AS HE MAY DEEM NECESSARY TO PROTECT THE INTERESTS OF THE UNITED STATES.

THIS STATUTE RECOGNIZES, AS IS POINTED OUT IN THE REQUEST FOR DECISION, THAT THE NATIONAL GUARD IS NOT A PART OF THE ARMY OF THE UNITED STATES EXCEPT WHEN IN FEDERAL SERVICE BY THE REQUIREMENT THAT THE PURCHASE OR MANUFACTURE OF ARMS, ORDNANCE STORES, QUARTERMASTER STORES, AND CAMP EQUIPAGE FOR THE NATIONAL GUARD SHALL BE MADE UNDER THE DIRECTION OF THE SECRETARY OF WAR "AS SUCH ARMS, ORDNANCE AND QUARTERMASTER STORES, AND CAMP EQUIPAGE ARE NOW MANUFACTURED OR OTHERWISE PROVIDED FOR THE USE OF THE REGULAR ARMY.' SECTIONS 3709 AND 3744 TO 3747, INCLUSIVE, REVISED STATUTES, PROVIDE IN GENERAL, HOW SUCH MATERIAL SHALL BE PURCHASED FOR THE REGULAR ARMY AND SUCH PROVISIONS MUST BE FOLLOWED WITH RESPECT TO THE PURCHASE, ETC., OF THE MATERIAL FOR THE NATIONAL GUARD. THE REQUIREMENT THAT THE "SECRETARY OF WAR SHALL PRESCRIBE AND SUPPLY THE NECESSARY" BLANK FORMS FOR SUCH CONTRACTS AND MAKE SUCH REGULATIONS AS SHALL BE DEEMED NECESSARY IS SIMILAR TO THE REQUIREMENTS IN SECTION 3747, REVISED STATUTES, AND CLEARLY CONTEMPLATES THAT THERE SHALL BE UNIFORMITY AS TO BOTH THE FORMS FOR CONTRACTS AND THE PROCEDURE OF CONTRACTING FOR THE NATIONAL GUARD.

THE LAW MAY BE SAID TO REQUIRE THAT SUCH CONTRACTS BE MADE AS SIMILAR CONTRACTS ARE MADE FOR THE REGULAR ARMY AND TO REQUIRE PROPERTY ACCOUNTABILITY AS PROPERTY OF THE UNITED STATES. IN SO FAR THEN AS ACCOUNTABILITY FOR THE FUNDS USED IS CONCERNED, AND SO UNDERSTANDING QUESTION (A), THE CONTRACTS MUST COMPLY WITH ALL FEDERAL REQUIREMENTS, AND AS SUCH BE FILED IN THIS OFFICE IN SUPPORT OF VOUCHERS MAKING PAYMENTS THEREUNDER. SINCE THE LAW REQUIRES THE CONTRACTS TO BE MADE UNDER THE "DIRECTION OF THE SECRETARY OF WAR," AND AS CONTRACTS ARE MADE FOR THE REGULAR ARMY, THE REQUIREMENTS OF SECTIONS 3744 AND 3747, REVISED STATUTES, MUST BE OBSERVED, AND THE OFFICER ENTERING INTO NATIONAL GUARD CONTRACTS MUST BE APPOINTED BY THE SECRETARY OF WAR OR BY THE CHIEFS OF PROCUREMENT BUREAUS OF THE WAR DEPARTMENT. SEE WAR DEPARTMENT GENERAL ORDERS, NOS. 47 AND 55, 1918. IT NECESSARILY FOLLOWS THAT THE GOVERNOR OF THE STATE CONCERNED HAS NO AUTHORITY IN THE MATTER OF APPOINTING CONTRACTING OFFICERS AND THAT THE SECRETARY OF WAR MAY APPOINT THE PROPERTY AND DISBURSING OFFICER OR SOME OTHER QUALIFIED OFFICER OF THE NATIONAL GUARD OF THE STATE CONCERNED TO MAKE SUCH CONTRACTS ON FORMS PRESCRIBED AND IN ACCORDANCE WITH REGULATIONS ISSUED FOR HIM.

THE ANSWER TO THE FIRST QUESTION SEEMS TO RENDER UNNECESSARY ANY FURTHER ANSWER TO THE THIRD QUESTION, EXCEPT TO STATE THAT IN THE ABSENCE OF SPECIFIC EXCEPTIONS TO THE CONTRARY ALL LAWS APPLICABLE TO PURCHASES FOR THE REGULAR ARMY ARE REQUIRED TO BE OBSERVED IN MAKING PURCHASES FOR THE NATIONAL GUARD. THE REASON FOR SUCH REQUIREMENT WOULD APPEAR TO BE OBVIOUS. UNDER THE NATIONAL DEFENSE ACT, AS AMENDED, THE NATIONAL GUARD IS ONE OF THE THREE COMPONENTS OF THE ARMY OF THE UNITED STATES, AND IT IS ENTIRELY FITTING AND PROPER THAT ITS PEACE-TIME ACTIVITIES AND PRACTICES SHOULD BE SIMULATED AS NEARLY AS MAY BE TO THE ACTIVITIES AND PRACTICES OF THE OTHER TWO COMPONENTS, PARTICULARLY OF THE REGULAR ARMY.