B-208091.OM., SEP 24, 1982

B-208091.OM., SEP 24, 1982

SUBJECT: CLAIM OF THE ATLANTA JOURNAL (Z-2843759) - B-208091-O.M.

ACTING DIRECTOR, AFMD-CLAIMS GROUP:

RETURNED IS FILE Z-2843759, ALONG WITH A COPY OF OUR LETTER OF TODAY, B-208091, TO THE ATLANTA JOURNAL, ADVISING THAT WHILE WE HAVE NO AUTHORITY TO PAY ITS CLAIM, WE ARE SUBMITTING IT TO THE CONGRESS PURSUANT TO THE MERITORIOUS CLAIMS ACT. IN ADDITION, WE ARE INCLUDING COPIES OF OUR LETTERS TO THE CONGRESS, THE PRESIDENT OF THE SENATE AND THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, RECOMMENDING THAT THE CLAIM BE AUTHORIZED.

THIS CASE IS DISTINGUISHABLE FROM NEW YORK TIMES, ET AL., B-206625, JULY 28, 1982 (Z-2836142, Z-2836143, Z-32022(15)), IN WHICH WE HELD THAT THE WRITTEN AUTHORITY REQUIRED BY 42 U.S.C. SEC. 3702 WAS PROVIDED WHERE BLANKET AUTHORITY TO APPROVE ADVERTISEMENTS WAS DELEGATED IN WRITING BY A COMMANDING GENERAL TO HIS INSTALLATION COMMANDERS. EVEN IF THE FORT STEWART COMMANDER WAS DELEGATED SIMILAR AUTHORITY, THIS CASE IS NEVERTHELESS DISTINGUISHABLE BECAUSE THE FORT STEWART COMMANDER DID NOT APPROVE THE ADVERTISEMENT AS DID THE COMMANDER IN NEW YORK TIMES, ET AL.

IN THE EVENT THAT THE CONGRESS ENACTS THE RECOMMENDED MERITORIOUS CLAIMS ACT LEGISLATION, THE MATTER WILL BE REFERRED BACK TO THE COMPTROLLER GENERAL. THE FILE FOR THIS CASE, Z-2843759, WILL BE NEEDED AT THAT TIME AND SHOULD BE KEPT AVAILABLE. THE SAME IS TRUE OF THE CLAIM OF FLORIDA TIMES-UNION AND THE JACKSONVILLE JOURNAL, B-208306, AUGUST 18, 1982 (Z-2843392).

ATTACHMENTS

THIS IS IN REFERENCE TO YOUR CLAIM IN THE AMOUNT OF $274.50 FOR ADVERTISEMENTS PLACED IN YOUR NEWSPAPER FROM AUGUST 1 TO 10, 1981, TO RECRUIT ENGINEERING PERSONNEL FOR THE FORT STEWART ARMY DIVISION. THE ADVERTISEMENTS WERE PROCURED IN VIOLATION OF SECTION 3702 OF TITLE 44, UNITED STATES CODE, WHICH PROVIDES THAT:

"ADVERTISEMENTS, NOTICES, OR PROPOSALS FOR AN EXECUTIVE DEPARTMENT OF THE GOVERNMENT OR FOR A BUREAU OR OFFICE CONNECTED WITH IT, MAY NOT BE PUBLISHED IN A NEWSPAPER EXCEPT UNDER WRITTEN AUTHORITY FROM THE HEAD OF THE DEPARTMENT; AND A BILL FOR ADVERTISING OR PUBLICATION MAY NOT BE PAID UNLESS THERE IS PRESENTED WITH THE BILL A COPY OF THE WRITTEN AUTHORITY."

REGRETFULLY, OUR OFFICE THEREFORE MUST DISALLOW YOUR CLAIM. YOU PUBLISHED THE ADVERTISEMENTS IN GOOD FAITH, HOWEVER, AND WE FEEL THAT THE EQUITIES IN THE MATTER WARRANT REPORTING YOUR CLAIM TO THE CONGRESS OF THE UNITED STATES UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 31 U.S.C. SEC. 236 (1976). ENCLOSED IS A COPY OF OUR REPORT OF TODAY TO THE CONGRESS RECOMMENDING THAT PAYMENT OF THE CLAIM BE AUTHORIZED.

NO FURTHER ACTION ON YOUR CLAIM CAN BE TAKEN BY OUR OFFICE UNLESS AND UNTIL THE CONGRESS ENACTS LEGISLATION PURSUANT TO OUR RECOMMENDATION.

ATTACHMENT

TO THE CONGRESS OF THE UNITED STATES:

THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. SEC. 236 (1976), PROVIDES THAT:

"WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON."

IN ACCORDANCE WITH THE ACT, WE MAKE THE FOLLOWING REPORT AND RECOMMENDATION ON THE CLAIM OF THE ATLANTA JOURNAL FOR $274.50.

THE CLAIM ARISES FROM ADVERTISEMENTS PRINTED IN THE NEWSPAPER. EMPLOYEE OF THE FORT STEWART ARMY DIVISION PLACED THE ORDER FOR THE ADVERTISEMENTS WITHOUT PRIOR WRITTEN APPROVAL BY THE PROPER AUTHORITIES FOR THE PLACING OF THE ADVERTISEMENTS.

THE ARMY FINANCE AND ACCOUNTING CENTER FORWARDED THE CLAIM FILE TO OUR CLAIMS GROUP FOR SETTLEMENT. THE FILE INDICATES THAT THE AMOUNT CLAIMED IS CONSIDERED FAIR AND REASONABLE AND THE GOVERNMENT HAS BENEFITED FROM THE ADVERTISEMENTS. OUR OFFICE DISALLOWED THE CLAIM BECAUSE THE ADVERTISEMENTS WERE PRINTED WITHOUT PRIOR WRITTEN AUTHORIZATION IN VIOLATION OF 44 U.S.C. SEC. 3702 (1976), WHICH STATES:

"ADVERTISEMENTS, NOTICES, OR PROPOSALS FOR AN EXECUTIVE DEPARTMENT OF THE GOVERNMENT OR FOR A BUREAU OR OFFICE CONNECTED WITH IT, MAY NOT BE PUBLISHED IN A NEWSPAPER EXCEPT UNDER WRITTEN AUTHORITY FROM THE HEAD OF THE DEPARTMENT; AND A BILL FOR ADVERTISING OR PUBLICATION MAY NOT BE PAID UNLESS THERE IS PRESENTED WITH THE BILL A COPY OF THE WRITTEN AUTHORITY."

WE HELD IN 35 COMP.GEN. 235 (1955) THAT THE ABOVE-CITED PROVISION DOES NOT PRECLUDE ADVERTISING IN NEWSPAPERS PER SE, BUT ONLY PAYMENT FOR THE ADVERTISEMENTS UNLESS THE PROPER PROCEDURES ARE FOLLOWED. SUBSEQUENT RATIFICATION AFTER THE SERVICES HAVE BEEN RENDERED DOES NOT COMPLY WITH THE TERMS OF THE STATUTE.

ORDINARILY, WE DO NOT REPORT TO THE CONGRESS UNDER THE ACT OF APRIL 10, 1928, CLAIMS WHICH CANNOT BE PAID BY REASON OF A PROHIBITORY STATUTE. HOWEVER, ALTHOUGH 44 U.S.C. SEC. 3702 PROHIBITS PAYMENT FOR ADVERTISING UNLESS WRITTEN AUTHORITY IS ISSUED IN ADVANCE OF ADVERTISING, IT DOES NOT PROHIBIT ADVERTISING IN NEWSPAPERS. THEREFORE, SINCE THE NEWSPAPER APPEARS TO HAVE ACTED IN GOOD FAITH AND THE GOVERNMENT BENEFITED FROM THE ADVERTISING, WE HAVE DETERMINED THAT THE EQUITIES WARRANT REPORTING THE CLAIM UNDER THE MERITORIOUS CLAIMS ACT WITH A RECOMMENDATION THAT PAYMENT BE AUTHORIZED.

IF THE CONGRESS AGREES WITH OUR RECOMMENDATION, IT IS SUGGESTED THAT ENACTMENT OF A STATUTE IN SUBSTANTIALLY THE FOLLOWING FORM WILL ACCOMPLISH THE DESIRED RESULT:

"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT THE COMPTROLLER GENERAL BE, AND HE HEREBY IS, AUTHORIZED AND DIRECTED TO SETTLE AND ADJUST THE CLAIM OF THE ATLANTA JOURNAL FOR $274.50 FOR ADVERTISEMENTS FOR THE FORT STEWART ARMY DIVISION. THE AMOUNT SHALL BE PAYABLE FROM THE APPLICABLE APPROPRIATIONS OF THE DEPARTMENT OF THE ARMY."