A-25975, FEBRUARY 20, 1929, 8 COMP. GEN. 457

A-25975: Feb 20, 1929

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UNTIL THE SUPPLY THEREIN PRODUCED IS EXHAUSTED BEFORE PURCHASING ELSEWHERE. THE PURCHASE OF SAID ARTICLES ELSEWHERE IS NOT AUTHORIZED EXCEPT UPON A SHOWING THAT THE PENITENTIARY COULD NOT SUPPLY THE SAME. WHERE IT IS PROPOSED TO PURCHASE A KIND OF SHOE. FOR DECISION WHETHER YOU ARE AUTHORIZED. THE QUESTION SEEMS TO HAVE BEEN PRESENTED BECAUSE OF OBJECTION OF THIS OFFICE TO CONTRACT NO. THE FUNDS FOR THE SUPPORT OF THE HOME ARE DERIVED FROM CERTAIN BALANCES OF PENSION MONEY DUE INMATES (ACT OF JULY 1. PROVIDED: * * * THAT THE ACCOUNTS RELATING TO THE EXPENDITURE OF ALL PUBLIC MONEYS APPROPRIATED FOR THE SUPPORT AND MAINTENANCE OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS SHALL BE AUDITED BY THE BOARD OF MANAGERS OF SAID HOME IN THE SAME MANNER AS IS PROVIDED FOR THE ACCOUNTS OF THE VARIOUS DEPARTMENTS OF THE UNITED STATES GOVERNMENT.

A-25975, FEBRUARY 20, 1929, 8 COMP. GEN. 457

NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS - PURCHASE OF SHOES, BROOMS, AND BRUSHES THE ACT OF FEBRUARY 11, 1924, 43 STAT. 6, MAKES IT OBLIGATORY ON THE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT, INCLUDING THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS, TO PURCHASE SHOES, BROOMS, AND BRUSHES FROM THE FEDERAL PENITENTIARY AT LEAVENWORTH, KANS., UNTIL THE SUPPLY THEREIN PRODUCED IS EXHAUSTED BEFORE PURCHASING ELSEWHERE, AND THE PURCHASE OF SAID ARTICLES ELSEWHERE IS NOT AUTHORIZED EXCEPT UPON A SHOWING THAT THE PENITENTIARY COULD NOT SUPPLY THE SAME. WHERE IT IS PROPOSED TO PURCHASE A KIND OF SHOE, BROOM, OR BRUSH WHICH THE PENITENTIARY CAN NOT FURNISH THERE MUST BE A SATISFACTORY SHOWING OF THE FACTS AS TO THE NECESSITY FOR PURCHASING SUCH PARTICULAR KIND.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT OF THE BOARD OF MANAGERS OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS, FEBRUARY 20, 1929:

THERE HAS BEEN RECEIVED YOUR REQUEST DATED DECEMBER 29, 1928, FOR DECISION WHETHER YOU ARE AUTHORIZED, NOTWITHSTANDING THE PROVISIONS OF THE ACT OF FEBRUARY 11, 1924, 43 STAT. 6, TO CONTRACT WITH PRIVATE MANUFACTURERS FOR SUCH SHOES AS MAY BE NECESSARY FOR ISSUE TO THE INMATES OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS.

THE QUESTION SEEMS TO HAVE BEEN PRESENTED BECAUSE OF OBJECTION OF THIS OFFICE TO CONTRACT NO. NHGT-156, DATED JUNE 18, 1928, BETWEEN THE NATIONAL MILITARY HOME FOR DISABLED VOLUNTEER SOLDIERS AND THE BROWN SHOE CO. (INC.), FOR DELIVERY OF A QUANTITY OF SHOES ON OR BEFORE DECEMBER 31, 1928.

SECTION 4825, REVISED STATUTES, PROVIDED THAT THE PRESIDENT, THE SECRETARY OF WAR, THE CHIEF JUSTICE, AND SUCH OTHER PERSONS AS MAY FROM TIME TO TIME BE ASSOCIATED WITH THEM, SHOULD CONSTITUTE AN ESTABLISHMENT FOR THE CARE AND RELIEF OF DISABLED VOLUNTEERS OF THE UNITED STATES ARMY TO BE KNOWN BY THE NAME AND STYLE OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS, AND JOINT RESOLUTION 241, APPROVED OCTOBER 19, 1914, 38 STAT. 780, PROVIDED THAT THEREAFTER THE BOARD FOR THE MANAGEMENT OF SAID HOME SHOULD CONSIST OF SEVEN MEMBERS, FOUR TO CONSTITUTE A QUORUM. THE ACT OF MARCH 4, 1921, 41 STAT. 1396, FIXED CERTAIN SALARIES FOR CERTAIN MEMBERS OF THE BOARD AND EMPLOYEES THEREOF. THE FUNDS FOR THE SUPPORT OF THE HOME ARE DERIVED FROM CERTAIN BALANCES OF PENSION MONEY DUE INMATES (ACT OF JULY 1, 1902, 32 STAT. 564, AND ACT OF JUNE 25, 1910, 36 STAT. 736); SALES OF SUBSISTENCE STORES AND OTHER PROPERTY OF THE HOME (ACT OF AUGUST 18, 1894, 28 STAT. 412); AND APPROPRIATIONS MADE ANNUALLY THEREFOR (ACT OF MARCH 23, 1928, 45 STAT. 359, 363). THE ACT OF MARCH 3, 1887, 24 STAT. 539, PROVIDED THAT THE EXPENDITURES OF THE HOME "SHALL BE MADE SUBJECT TO THE GENERAL LAWS GOVERNING THE DISBURSEMENT OF PUBLIC MONEYS, SO FAR AS THE SAME CAN BE MADE APPLICABLE THERETO," WHILE THE ACT OF MARCH 3, 1901, 31 STAT. 1178, AS AMENDED BY SECTION 304 OF THE ACT OF JUNE 10, 1921, 42 STAT. 24, PROVIDED:

* * * THAT THE ACCOUNTS RELATING TO THE EXPENDITURE OF ALL PUBLIC MONEYS APPROPRIATED FOR THE SUPPORT AND MAINTENANCE OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS SHALL BE AUDITED BY THE BOARD OF MANAGERS OF SAID HOME IN THE SAME MANNER AS IS PROVIDED FOR THE ACCOUNTS OF THE VARIOUS DEPARTMENTS OF THE UNITED STATES GOVERNMENT, AND THEREUPON IMMEDIATELY TRANSMITTED DIRECTLY TO THE GENERAL ACCOUNTING OFFICE FOR FINAL AUDIT AND SETTLEMENT.

THE FOREGOING STATUTES HAVE BEEN REFERRED TO FOR THE PURPOSE OF SHOWING BEYOND DOUBT THE REQUIREMENT OF THE LAW THAT PUBLIC MONEYS APPROPRIATED FOR THE SUPPORT OF THE HOME AND OTHER MONEYS USED THEREFOR SHALL BE EXPENDED "SUBJECT TO THE GENERAL LAWS GOVERNING THE DISBURSEMENT OF PUBLIC MONEYS, SO FAR AS THE SAME CAN BE MADE APPLICABLE THERETO.' SEE BROOKS HARDWARE COMPANY V. GREER, 46 L.R.A., N.S. 301; LYLE V. NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS, 170 U.S. 842, AND OHIO V. THOMAS, 173 U.S. 276. SEE ALSO NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS V. PARRISH, 229 U.S. 494.

THE PURPOSE OF THE ACT OF FEBRUARY 11, 1924, 43 STAT. 6, WAS STATED IN HOUSE REPORT NO. 21, SIXTY-EIGHTH CONGRESS, FIRST SESSION, AFTER REFERRING TO THE ECONOMIC WASTE OF UNEMPLOYMENT OF THE INMATES OF FEDERAL PENITENTIARIES AS A MINOR CONSIDERATION, IN PERTINENT PART, AS FOLLOWS:

* * * THE UNEMPLOYMENT FEATURE OF PRISON LIFE IS THAT WHICH APPEALS MOST STRONGLY TO THE COMMITTEE; FOR THIS A REMEDY SHOULD BE OBTAINED AS EARLY AS POSSIBLE. THE FACT OF UNEMPLOYMENT IS DEMORALIZING AND DESTRUCTIVE. IT IS NOT ONLY THE DUTY OF THE GOVERNMENT FROM A HUMANITARIAN POINT OF VIEW TO PROVIDE AS FAR AS PRACTICABLE FOR THE EMPLOYMENT OF ITS PRISONERS BUT ALSO FROM THE VIEWPOINT OF ECONOMY.

THE SHOE INDUSTRY, SO FAR AS SUPPLYING THE NEEDS OF THE GOVERNMENT, WOULD REQUIRE THE PRODUCTION OF APPROXIMATELY 1,000,000 PAIRS OF SHOES ANNUALLY, AND IT WOULD FURNISH EMPLOYMENT TO ABOUT 1,000 MEN. IT IS ESTIMATED THAT THIS NUMBER OF MEN COULD BE PROFITABLY EMPLOYED IN THIS INDUSTRY AND BE ABLE TO PRODUCE 2,500 PAIRS OF SHOES PER DAY. * * *

AS A MEANS OF REDUCING THE ECONOMIC LOSS DUE TO THE UNEMPLOYMENT OF THE INMATES OF THE UNITED STATES PENITENTIARY AND PROVIDING EMPLOYMENT FOR THEM, SECTION 1 OF THE ACT OF FEBRUARY 11, 1924, AUTHORIZED THE ESTABLISHMENT OF A FACTORY OR FACTORIES FOR THE MANUFACTURE OF SHOES, BROOMS, AND BRUSHES "TO SUPPLY THE REQUIREMENTS OF THE VARIOUS DEPARTMENTS OF THE UNITED STATES GOVERNMENT," WITH THE REQUIREMENT THAT THE PRODUCTS "SHALL BE UTILIZED IN SAID PENITENTIARY OR SOLD TO THE GOVERNMENT OF THE UNITED STATES FOR THE USE OF THE MILITARY AND NAVAL FORCES AND OTHER GOVERNMENT DEPARTMENTS.' SECTION 2 OF THE ACT PROVIDES THAT THE ARTICLES SO MANUFACTURED SHALL BE SOLD AT THE CURRENT MARKET PRICES AS DETERMINED BY THE ATTORNEY GENERAL OR HIS AUTHORIZED AGENT, AND SECTION 9 THEREOF, PROVIDES THAT---

IT IS HEREBY MADE OBLIGATORY UPON THE VARIOUS DEPARTMENTS OF THE GOVERNMENT TO PURCHASE THE PRODUCTS OF THE BUSINESS HEREIN AUTHORIZED TO BE CARRIED ON IN THE PENITENTIARY AT LEAVENWORTH, KANSAS, UNTIL THE SUPPLY THEREIN PRODUCED IS EXHAUSTED BEFORE PURCHASING ELSEWHERE.

IT IS REPORTED, IN THE REQUEST FOR DECISION, THAT SHOES PURCHASED FROM A PRIVATE MANUFACTURER AT A PRICE OF $2.8175 PER PAIR WERE BETTER ADAPTED TO THE USE OF THE MEMBERS OF THE HOME THAN THE SHOES OFFERED BY THE LEAVENWORTH PENITENTIARY AT THE PRICE OF $3.15 OR $3.55 PER PAIR; BUT, AS STATED, THE REQUIREMENT OF SECTION 2 OF THE ACT OF FEBRUARY 11, 1924, IS THAT THE SHOES MANUFACTURED IN THE PENITENTIARY "SHALL BE SOLD AT CURRENT MARKET PRICES.' THE FACT THAT SHOES MAY BE OFFERED BY A PRIVATE MANUFACTURER AT A LESS SUM THAN THE SHOES OFFERED BY THE FEDERAL PENITENTIARY, DOES NOT NECESSARILY DETERMINE THAT THE FEDERAL PENITENTIARY IS NOT SELLING THE SHOES "AT THE CURRENT MARKET PRICES," AS THE DIFFERENCE IN PRICE BETWEEN THE SHOES MANUFACTURED BY THE FEDERAL PENITENTIARY AND THE PRIVATE MANUFACTURER MAY BE DUE TO A DIFFERENCE IN QUALITY OF THE SHOES. BUT IN ANY EVENT, THE ACT OF FEBRUARY 11, 1924, MAKES IT OBLIGATORY UPON THE VARIOUS DEPARTMENTS OF THE GOVERNMENT TO PURCHASE THE SHOES MANUFACTURED IN THE PENITENTIARY AT LEAVENWORTH "UNTIL THE SUPPLY THEREIN PRODUCED IS EXHAUSTED BEFORE PURCHASING ELSEWHERE.' THERE IS NO AUTHORITY TO PURCHASE SHOES ELSEWHERE WHEN THE SUPPLY OF SHOES AT THE FEDERAL PENITENTIARY IS NOT EXHAUSTED, EVEN THOUGH SHOES MAY BE OBTAINED ELSEWHERE AT A LOWER PRICE THAN FROM THE PENITENTIARY. IT IS EQUALLY OBLIGATORY THAT THE SHOES MANUFACTURED AT THE FEDERAL PENITENTIARY BE SOLD "AT THE CURRENT MARKET PRICES" AND THE PRICE IS ONE FOR ADJUSTMENT BETWEEN THE PURCHASING AGENCY AND THE ATTORNEY GENERAL WHO IS AUTHORIZED UNDER SECTION 2 OF THE ACT TO DETERMINE THE CURRENT MARKET PRICES.

IT MAY BE THAT THE PENITENTIARY CAN NOT PRODUCE SHOES TO MEET THE REQUIREMENTS OF ALL OF THE INMATES OF THE HOME. THE DISABILITIES AND INFIRMITIES OF SOME OF THE INMATES OF THE HOME MAY REQUIRE SPECIAL SHOES SUCH AS CAN NOT BE MANUFACTURED AT THE PENITENTIARY, AND IN SUCH CASES SHOES FOR SUCH INMATES MAY BE PURCHASED ELSEWHERE. HOWEVER, THERE SHOULD ACCOMPANY TO THIS OFFICE FOR FILING WITH THE AGREEMENT, A CLEAR SHOWING OF THE REASONS WHY THE PARTICULAR SHOES ARE REQUIRED AND WHY THEY COULD NOT BE OBTAINED FROM THE PENITENTIARY.

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE ADVISED THAT WHERE SHOES CAN BE PURCHASED AT THE FEDERAL PENITENTIARY MEETING THE REQUIREMENTS OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS, SUCH SHOES MAY NOT BE PURCHASED ELSEWHERE. WHERE SHOES CAN NOT BE PURCHASED AT THE PENITENTIARY MEETING THE REQUIREMENTS OF THE HOME DUE TO INFIRMITIES OR DISABILITY OF THE INMATES FOR WHOM THEY ARE INTENDED, OR DUE TO THE EXHAUSTION OF THE SUPPLY AT THE PENITENTIARY, A CLEAR SHOWING IN THIS REGARD MUST ACCOMPANY THE CONTRACT FOR THE PURCHASE OF SUCH SHOES ELSEWHERE.

THE REQUIREMENTS HEREIN WITH RESPECT TO THE PURCHASE OF SHOES ARE EQUALLY APPLICABLE TO THE PURCHASE OF BROOMS AND BRUSHES.