A-31949, JUNE 26, 1930, 9 COMP. GEN. 525

A-31949: Jun 26, 1930

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THAT ALL ORDERS OR CONTRACTS FOR THE MANUFACTURE OF MATERIAL PLACED WITH GOVERNMENT OWNED ESTABLISHMENTS SHALL BE CONSIDERED AS OBLIGATIONS IN THE SAME MANNER AS PROVIDED FOR SIMILAR ORDERS PLACED WITH COMMERCIAL MANUFACTURERS AND PAID UNDER APPROPRIATIONS AVAILABLE WHEN THE ORDER IS PLACED. 1930: REFERENCE IS MADE TO YOUR LETTER OF APRIL 30. THERE IS SUBMITTED HEREWITH FOR ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT BY THIS OFFICE VOUCHER OF HUDSON CONSTRUCTION CO. SHOULD HAVE BEEN MET. IS IN PART AS FOLLOWS: 1. 068.58 FOR SERVICES RENDERED FOR RENTAL OF A POWER SHOVEL AND OPERATOR FOR 49 1/2 DAYS AT $42 PER DAY IS HEREWITH FORWARDED FOR AN ADVANCE DECISION AS TO WHETHER OR NOT SAME IS PAYABLE FROM 1930 FUNDS. 2.

A-31949, JUNE 26, 1930, 9 COMP. GEN. 525

CONTRACTS - PRIOR YEAR APPROPRIATIONS THE PROVISIONS OF THE ACT OF JUNE 5, 1920, 41 STAT. 975, THAT ALL ORDERS OR CONTRACTS FOR THE MANUFACTURE OF MATERIAL PLACED WITH GOVERNMENT OWNED ESTABLISHMENTS SHALL BE CONSIDERED AS OBLIGATIONS IN THE SAME MANNER AS PROVIDED FOR SIMILAR ORDERS PLACED WITH COMMERCIAL MANUFACTURERS AND PAID UNDER APPROPRIATIONS AVAILABLE WHEN THE ORDER IS PLACED, DO NOT AUTHORIZE CHARGING PRIOR YEAR APPROPRIATIONS WITH PAYMENTS UNDER A 1930 FISCAL YEAR CONTRACT FOR THE CONSTRUCTION OF AVIATION LANDING FIELD ADMINISTRATIVELY AUTHORIZED IN THE FISCAL YEAR 1928.

COMPTROLLER GENERAL MCCARL TO CAPT. H. B. LOVELL, UNITED STATES ARMY, JUNE 26, 1930:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 30, 1930 (FO-158-HUDSON CONSTRUCTION CO.), AS OLLOWS:

1. THERE IS SUBMITTED HEREWITH FOR ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT BY THIS OFFICE VOUCHER OF HUDSON CONSTRUCTION CO. IN AMOUNT OF $2,068.50, BASED ON CONTRACT W-971 QM-350, DATED AUGUST 27, 1929, AND CHANGED ORDER "A" THERETO, DATED MARCH 12, 1930, WHICH HAS BEEN PRESENTED TO THE UNDERSIGNED, A DISBURSING OFFICER, FOR PAYMENT.

2. THE ORIGINAL CONTRACT PROVIDES FOR EXPENDITURE OF APPROXIMATELY $6,000 (ESTIMATED) INVOLVING FUNDS FOR THE FISCAL YEAR 1928, WHILE THE CHANGE ORDER "A" MODIFIES THE CONTRACT SO AS TO INCLUDE FUNDS APPROPRIATED FOR THE FISCAL YEAR 1930 TO THE EXTENT OF APPROXIMATELY 100 PERCENT OF THE ORIGINAL AMOUNT.

3. THIS OFFICE ENTERTAINS DOUBT AS TO THE PROPRIETY OF APPLICATION OF FUNDS APPROPRIATED FOR THE FISCAL YEAR 1930 FOR A PROJECT WHICH SPECIFIED FUNDS OF THE FISCAL YEAR 1928 BASED ON 1 COMP. GEN. 175, AND ALSO AS TO WHETHER THE REQUIREMENTS OF 5 COMP. GEN. 642, SHOULD HAVE BEEN MET, WHICH STATES IN PART,"THAT AN ORIGINAL CONTRACT MAY NOT BE EXPANDED BY A SUPPLEMENTAL AGREEMENT ENTERED INTO WITHOUT ADVERTISING PROVIDING FOR SUBSTANTIAL ADDITIONS TO AND NOT A PART OF THE WORK COVERED BY THE ORIGINAL CONTRACT.'

THE THIRD INDORSEMENT OF THE CHIEF OF FINANCE, DATED MAY 20, 1930 (167/133020 FAA-3 HUDSON CONSTRUCTION CO.), TRANSMITTING YOUR REQUEST TO THIS OFFICE, IS IN PART AS FOLLOWS:

1. IN ACCORDANCE WITH THE REQUEST OF CAPT. H. B. LOVELL, FINANCE OFFICER, BOSTON, MASS., THE ATTACHED VOUCHER IN FAVOR OF THE HUDSON CONSTRUCTION CO. IN AMOUNT OF $2,068.58 FOR SERVICES RENDERED FOR RENTAL OF A POWER SHOVEL AND OPERATOR FOR 49 1/2 DAYS AT $42 PER DAY IS HEREWITH FORWARDED FOR AN ADVANCE DECISION AS TO WHETHER OR NOT SAME IS PAYABLE FROM 1930 FUNDS.

2. THE ORIGINAL CONTRACT NO. W-971 QM-350 DATED SEPTEMBER 26, 1929, WAS ENTERED INTO AFTER ADVERTISING, THE HUDSON CONSTRUCTION CO. BEING THE LOWEST BIDDER. THE CONTRACT PROVIDED FOR USE OF THE POWER SHOVEL AND OPERATOR FOR 156 WORKING DAYS (MORE OR LESS) OF EIGHT HOURS EACH AT A COST OF $42 PER DAY. PAYMENT WAS AUTHORIZED FROM 1928 FUNDS IN VIEW OF THE FACT THAT THE EXPENDITURE WAS AN INCIDENTAL EXPENSE TO THE COMPLETION OF AN APPROVED PROJECT FOR THE CONSTRUCTION OF AN AVIATION LANDING FIELD AT FORT H. G. WRIGHT, N.Y., WITH THE MIDDLESEX HOUSING CO., METUCHEN, N.J., DATED JUNE 30, 1928.

3. THE ATTACHED VOUCHER COVERS THE FIRST EXPENSES INCURRED UNDER CHANGE ORDER "A" DATED MARCH 12, 1930, (COPY OF WHICH IS ATTACHED HERETO) WHICH MODIFIES THE ORIGINAL CONTRACT AND EXTENDS THE DATE OF COMPLETION TO AUGUST 15, 1930. IT IS NOTED THAT ADVERTISING WAS NOT RESORTED TO FOR THE ADDITIONAL WORK FURNISHED UNDER SAID CHANGE AND IN THIS CONNECTION ATTENTION IS INVITED TO ATTACHED CORRESPONDENCE MARKED "INCLOSURE 1.'

THE VOUCHER SUBMITTED SHOWS THAT THE PAYMENT IS PROPOSED TO BE UNDER THE 1930 APPROPRIATION ,ARMING, EQUIPPING, AND TRAINING THE NATIONAL GUARD.' THE CONTRACT OF AUGUST 27, 1929, WITH THE HUDSON CONSTRUCTING CO., THOUGH MADE IN THE FISCAL YEAR 1930, EVIDENTLY CONTEMPLATES THAT PAYMENTS THEREUNDER WOULD BE MADE FROM THE 1928 APPROPRIATION "ARMING, EQUIPPING, AND TRAINING THE NATIONAL GUARD.' THE ONLY EXPLANATION IN THE RECORD FOR THIS PROCEDURE OF ATTEMPTING TO OBLIGATE A 1928 APPROPRIATION BY A 1930 CONTRACT IS THE FOLLOWING DIRECTION CONTAINED IN A COMMUNICATION DATED JUNE 10, 1929, FROM THE OFFICE OF THE CORPS AREA COMMANDER HEADQUARTERS FIRST CORPS AREA, TO "COMMANDING OFFICER, H.D. LONG ISLAND SOUND, FORT H. G. WRIGHT, N.Y., " A COPY OF WHICH IS ATTACHED TO THE CONTRACT:

5. EACH INSTRUMENT OF PROCUREMENT WILL BEAR THE FOLLOWING NOTATION:

"IN ACCORDANCE WITH 2D IND., DATED MAY 23, 1929, OFFICE OF MILITIA BUREAU (MBS 686-1-NY-9), THIS PROCUREMENT IS AN INCIDENTAL EXPENSE TO THE COMPLETION OF AN APPROVED PROJECT FOR THE CONSTRUCTION OF AN AVIATION LANDING FIELD AT FORT H. G. WRIGHT, N.Y., COVERED BY CONTRACT NO. W-971 QM -279 WITH MIDDLESEX HOUSING CO., METUCHEN, N.J., DATED JUNE 30, 1928. THERE WERE BUT 7,259 CU.YDS. OF FILL IN THE DESIGNATED AREA REFERRED TO IN PARAGRAPH 2 OF SPECIFICATIONS BY DETAIL OF THE CONTRACT, AND THE THE CONTRACTOR HAVING DEPOSITED SAME IN THE DESIGNATED LOW AREA, NO FURTHER WORK IN CONNECTION WITH THE CONTRACT COULD BE REQUIRED OF THE CONTRACTOR, HE HAVING REFUSED TO ACCEPT ANY ADDITIONAL WORK ORDERS. IT HAS BECOME NECESSARY FOR THE GOVERNMENT TO TAKE OVER THE WORK OF COMPLETING THE PROJECT.'

THE CONTRACT OF JUNE 30, 1928, WITH THE MIDDLESEX HOUSING CO., MENTIONED IN THE QUOTED COMMUNICATION, HAS BEEN EXAMINED. IT IS FOR CERTAIN GRADING TO BE DONE IN CONNECTION WITH THE CONSTRUCTION OF THE AVIATION LANDING FIELD AT FORT H. G. WRIGHT AND APPARENTLY WAS FULLY COMPLETED SOME TIME PRIOR TO JUNE 30, 1929. IT IS STATED ON THE FIRST PAGE OF SAID CONTRACT THAT THE SERVICES TO BE OBTAINED THEREUNDER "ARE AUTHORIZED BY, ARE FOR THE PURPOSE SET FORTH IN, AND ARE CHARGEABLE TO PROCUREMENT AUTHORITY 48 MB 400 P-2506 A 6070-8, THE AVAILABLE BALANCE OF WHICH IS SUFFICIENT TO COVER COST OF SAME," BUT A COPY OF SUCH PROCUREMENT AUTHORITY IS NOT ATTACHED TO THE CONTRACT. HOW THIS CONTRACT. HOW THIS CONTRACT OF JUNE 30, 1928, FULLY COMPLETED DURING THE FISCAL YEAR 1929 COULD HAVE ANY CONNECTION WITH THE PRESENT CONTRACT MADE IN THE FISCAL YEAR 1930 WITH ANOTHER FIRM TO DO OTHER WORK ON THE LANDING FIELD, OR HOW SUCH 1930 CONTRACT COULD POSSIBLY OBLIGATE UNEXPENDED BALANCES OF THE 1928 APPROPRIATION IS NOT EXPLAINED IN THE PRESENT SUBMISSION. SOME LIGHT IS THROWN ON THE MATTER, HOWEVER, BY YOUR REFERENCE TO DECISION OF OCTOBER 1, 1921, 1 COMP. GEN. 175, PERTAINING TO AVAILABILITY OF APPROPRIATIONS BEYOND THE FISCAL YEAR FOR WHICH MADE. IN THAT DECISION IT WAS HELD THAT THE COST OF EQUIPMENT INCIDENTAL TO AND NECESSARY FOR USE IN MANUFACTURING MATERIAL PERTAINING TO APPROVED PROJECTS, UNDER AN ORDER OR CONTRACT PLACED WITH A GOVERNMENT-OWNED ESTABLISHMENT, PURSUANT TO THE ACT OF JUNE 5, 1920, 41 STAT. 975, IS CHARGEABLE TO THE APPROPRIATION FOR THE FISCAL YEAR IN WHICH THE ORDER OR CONTRACT FOR THE MANUFACTURE OF THE MATERIAL IS PLACED ALTHOUGH THE EQUIPMENT BE PURCHASED DURING THE FISCAL YEAR. THAT DECISION HAS REFERENCE TO THE EXPRESS AUTHORITY CONTAINED IN THE SAID ACT OF JUNE 5, 1920, FOR THE OBLIGATION OF APPROPRIATIONS BY PLACING ORDERS OR CONTRACTS WITH GOVERNMENT-OWNED ESTABLISHMENTS FOR THE MANUFACTURE OF MATERIAL THE SAME AS THOUGH SUCH ORDERS WERE PLACED WITH COMMERCIAL MANUFACTURERS. THERE WAS NO ORDER FOR THE MANUFACTURE OF MATERIAL INVOLVED IN THE PRESENT CASE AND NEITHER THE ACT OF JUNE 5, 1920, SUPRA, NOR THE DECISION CITED, 1 COMP. GEN. 175, HAS ANY APPARENT APPLICATION WHATSOEVER TO THE WORK OR PROJECT HERE INVOLVED.

HENCE, IT APPEARS THAT NO PAYMENTS FOR WORK UNDER THIS 1930 CONTRACT ARE AUTHORIZED UNDER 1928 APPROPRIATIONS. THE CONTRACT WAS MADE DURING THE FISCAL YEAR 1930, AND, SO FAR AS IS SHOWN, ONLY APPROPRIATIONS FOR THAT FISCAL YEAR WOULD BE AVAILABLE FOR PAYMENT FOR WORK DONE THEREUNDER. THIS CONNECTION IT IS OBSERVED THAT THE WORK FOR WHICH PAYMENT IS NOW CLAIMED IS FOR THE FIFTH AND SIXTH PERIOD OF 25 WORKING DAYS, COMPLETED APRIL 3, 1930, AND AS THE ORIGINAL CONTRACT WAS FOR APPROXIMATELY 156 WORKING DAYS TO BE COMPLETED ON OR BEFORE JUNE 30, 1930, THE WORK COMPLETED TO APRIL 3, 1930; WOULD BE WITHIN THE CONTRACT AS ORIGINALLY MADE AND THE AUTHORITY FOR EXTENDING THE CONTRACT TO COVER WORK IN ADDITION TO THAT CONTEMPLATED BY THE ORIGINAL CONTRACT IS NOT INVOLVED IN THE PAYMENT NOW PROPOSED. IT MAY BE STATED HERE, HOWEVER, THAT SECTION 3709, REVISED STATUTES, EXPRESSLY INCLUDES SERVICES, OTHER THAN PERSONAL SERVICE, AS WELL AS SUPPLIES, IN ITS REQUIREMENTS AS TO ADVERTISING PRIOR TO CONTRACTING, AND THAT ANY EXTENSION OF WORK UNDER THE PRESENT CONTRACT BEYOND THE REASONABLE TIME AND AMOUNT ACTUALLY CONTEMPLATED BY THE ORIGINAL CONTRACT AND ITS STIPULATION "156 WORKING DAYS (MORE OR LESS), WITHOUT PRIOR ADVERTISING FOR COMPETITIVE BIDS, WOULD NOT BE AUTHORIZED. SEE 5 COMP. GEN. 642, AND AUTHORITIES THEREIN CITED. THE STATED BASIS FOR THE REPORTED EXTENSION IN THIS CASE WAS THE AVAILABILITY OF FUNDS FOR LIKE WORK UNDER THE 1930 APPROPRIATION IN ADDITION TO THE FUNDS SUPPOSEDLY AVAILABLE UNDER THE 1928 APPROPRIATION, BUT AS IT APPEARS THAT THE 1928 APPROPRIATION IS NOT PROPERLY CHARGEABLE WITH THE COST OF ANY OF THE WORK UNDER THE CONTRACT, BUT THAT ALL WORK UNDER THE CONTRACT IS REQUIRED TO BE PAID FOR, IF AT ALL, UNDER THE 1930 APPROPRIATION, IT MAY BE THAT NO FUNDS UNDER THE SAID 1930 APPROPRIATION WILL BE AVAILABLE FOR WORK IN ADDITION TO THAT ALREADY COMPLETED UNDER THE TERMS OF THE ORIGINAL CONTRACT, AND, IN THAT EVENT, OF COURSE, THERE COULD BE NO VALID EXTENSION OF THE CONTRACT, EITHER WITH OR WITHOUT ADVERTISING, THERE BEING NO APPROPRIATION.

ACCORDINGLY, YOU ARE ADVISED THAT ON THE FACTS SUBMITTED PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, IF OTHERWISE CORRECT, MAY BE MADE UNDER THE PROPOSED 1930 APPROPRIATION, IF ALLOTTED FUNDS AVAILABLE THEREUNDER ARE SUFFICIENT TO COVER THE WORK HERE IN QUESTION, TOGETHER WITH ALL PREVIOUS WORK PERFORMED UNDER THE CONTRACT. A COMPLETE EXPLANATION OF THE MATTER SHOULD ACCOMPANY THE VOUCHER IF PAID ON THIS BASIS.