A-39457, NOVEMBER 14, 1931, 11 COMP. GEN. 190

A-39457: Nov 14, 1931

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO THE EXTENT THAT IT IS INCONSISTENT THEREWITH AND IF THE SUPPLIES FURNISHED BY CONTRACTORS UPON THE GENERAL SUPPLY SCHEDULE ARE NOT GROWN. UNLESS IN HIS DISCRETION THE INTEREST OF THE GOVERNMENT WILL NOT PERMIT. WHILE THE CONTRACTS FOR SUCH ITEMS ARE NOT MADE DIRECTLY BY THE SECRETARY OF THE NAVY. NEVERTHELESS THE ARTICLES ARE PURCHASED BY SAID SECRETARY ON ORDERS BASED ON THE GENERAL CONTRACTS ENTERED INTO BY THE SECRETARY OF THE TREASURY PURSUANT TO THE ACT OF JUNE 17. THE AMOUNTS PAID UNDER SUCH ORDERS ARE DEFRAYED FROM APPROPRIATIONS PROVIDED IN THE CURRENT NAVAL APPROPRIATION ACT IN WHICH THE PROHIBITION AGAINST THE PURCHASE OF ARTICLES OF FOREIGN GROWTH. PRODUCTION OR MANUFACTURE IS EMBODIED.

A-39457, NOVEMBER 14, 1931, 11 COMP. GEN. 190

CONTRACTS - AMERICAN PRODUCTS - NAVY DEPARTMENT THE PROVISION IN THE NAVY DEPARTMENT APPROPRIATION ACT FOR THE FISCAL YEAR 1931, ACT FEB. 28, 1931, 46 STAT. 1450, REQUIRING THAT IN THE EXPENDITURE OF APPROPRIATIONS UNDER THAT ACT, THE SECRETARY OF THE NAVY SHALL PURCHASE OR CONTRACT ONLY FOR ARTICLES OF THE GROWTH, PRODUCTION, OR MANUFACTURE OF THE UNITED STATES, AMENDS THE GENERAL SUPPLY ACT OF JUNE 17, 1910, 36 STAT. 531, TO THE EXTENT THAT IT IS INCONSISTENT THEREWITH AND IF THE SUPPLIES FURNISHED BY CONTRACTORS UPON THE GENERAL SUPPLY SCHEDULE ARE NOT GROWN, PRODUCED, OR MANUFACTURED IN THIS COUNTRY, THE CONTRACTS ON THE SCHEDULES SHOULD BE DISREGARDED BY THE NAVY DEPARTMENT AND SUPPLIES OF AMERICAN GROWTH, PRODUCTION, OR MANUFACTURE PURCHASED OTHERWISE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, NOVEMBER 14, 1931:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 5, 1931, AS FOLLOWS:

THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1932 APPROVED FEBRUARY 28, 1931 (46 STAT. 1450) CONTAINS THE FOLLOWING PROVISION, VIZ:

"THAT IN THE EXPENDITURE OF APPROPRIATIONS IN THIS ACT THE SECRETARY OF THE NAVY SHALL, UNLESS IN HIS DISCRETION THE INTEREST OF THE GOVERNMENT WILL NOT PERMIT, PURCHASE OR CONTRACT FOR, WITHIN THE LIMITS OF THE UNITED STATES, ONLY ARTICLES OF THE GROWTH, PRODUCTION, OR MANUFACTURE OF THE UNITED STATES, NOTWITHSTANDING THAT SUCH ARTICLES OF THE GROWTH, PRODUCTION, OR MANUFACTURE OF THE UNITED STATES MAY COST MORE, IF SUCH EXCESS OF COST BE NOT UNREASONABLE.'

IN YOUR DECISION OF APRIL 20, 1931 (10 COMP. GEN. 484) YOU HELD THAT THE WORDS "PURCHASE OR CONTRACT FOR" AS USED IN SAID ACT "MUST BE CONSTRUED AND UNDERSTOOD AS MEANING DIRECT PURCHASES OR CONTRACTS FOR THE PROCUREMENT OF THE ARTICLES * * *.'

SAID DECISION, HOWEVER, DID NOT DISCUSS THE QUESTION AS TO THE APPLICABILITY OF THE PROVISION TO PURCHASES MADE BY THE NAVY DEPARTMENT OF ITEMS ON THE GENERAL SUPPLY COMMITTEE SCHEDULE CONTRACTED FOR BY THE SECRETARY OF THE TREASURY FOR ALL EXECUTIVE DEPARTMENTS AND OTHER GOVERNMENT ESTABLISHMENTS IN WASHINGTON UNDER THE PROVISIONS OF THE ACT OF JUNE 17, 1910 (36 STAT. 531, TITLE 41, U.S. CODE, SEC. 7).

WHILE THE CONTRACTS FOR SUCH ITEMS ARE NOT MADE DIRECTLY BY THE SECRETARY OF THE NAVY, NEVERTHELESS THE ARTICLES ARE PURCHASED BY SAID SECRETARY ON ORDERS BASED ON THE GENERAL CONTRACTS ENTERED INTO BY THE SECRETARY OF THE TREASURY PURSUANT TO THE ACT OF JUNE 17, 1910, AND THE AMOUNTS PAID UNDER SUCH ORDERS ARE DEFRAYED FROM APPROPRIATIONS PROVIDED IN THE CURRENT NAVAL APPROPRIATION ACT IN WHICH THE PROHIBITION AGAINST THE PURCHASE OF ARTICLES OF FOREIGN GROWTH, PRODUCTION OR MANUFACTURE IS EMBODIED.

YOUR OPINION IS ACCORDINGLY REQUESTED AS TO WHETHER OR NOT THE PROVISION FIRST ABOVE QUOTED APPLIES TO PURCHASES BY THE NAVY DEPARTMENT OF ITEMS ON THE GENERAL SUPPLY COMMITTEE SCHEDULE. IF YOU HOLD THAT IT DOES APPLY, INFORMATION IS REQUESTED AS TO THE PROCEDURE TO BE FOLLOWED BY THE NAVY DEPARTMENT IN PURCHASING ARTICLES ON SAID SCHEDULE. UNDER THE PRESENT PRACTICE THE NAVY DEPARTMENT PLACES ITS ORDERS FOR REQUISITE SUPPLIES WITH DEALERS WITH WHOM THE SECRETARY OF THE TREASURY HAS ENTERED INTO CONTRACT AND NO PURCHASE OF ITEMS CARRIED ON SUCH SCHEDULE CAN BE MADE FROM OTHER DEALERS. THE NAVY DEPARTMENT IS WITHOUT KNOWLEDGE AS TO WHETHER OR NOT THE SUPPLIES TO BE FURNISHED BY THE DEALERS WITH WHOM THE SECRETARY OF THE TREASURY HAS ENTERED INTO CONTRACTS ARE OF THE GROWTH, PRODUCTION, OR MANUFACTURE OF THE UNITED STATES, AS THE SCHEDULE DOES NOT SHOW THE SOURCE OF ORIGIN OF SUCH SUPPLIES.

EARLY ACTION WILL BE APPRECIATED AS CERTAIN SUPPLIES URGENTLY NEEDED BY THE NAVY DEPARTMENT AND CARRIED ON THE SCHEDULE ARE UNDERSTOOD TO BE OF FOREIGN MANUFACTURE.

THE ACT OF JUNE 17, 1910, 36 STAT. 531, REQUIRING THE PURCHASE OF SUPPLIES BY ALL EXECUTIVE DEPARTMENTS AND OTHER GOVERNMENT ESTABLISHMENTS IN WASHINGTON TO BE MADE UNDER THE CONTRACTS ENTERED INTO BY THE GENERAL SUPPLY COMMITTEE IS FOR GENERAL APPLICATION IN THE DISTRICT OF COLUMBIA, BUT CONTAINS NO REQUIREMENT THAT PREFERENCE TO BE GIVEN TO AMERICAN- PRODUCED GOODS. THE PROVISION IN THE APPROPRIATION ACT FOR THE NAVY DEPARTMENT FOR THE FISCAL YEAR 1932 QUOTED IN YOUR SUBMISSION, IS FOR SPECIAL APPLICATION TO EXPENDITURES FROM NAVAL APPROPRIATIONS AND TO THE EXTENT THAT IT IS INCONSISTENT WITH THE GENERAL-SUPPLY ACT, THE GENERAL- SUPPLY ACT MUST BE CONSIDERED AMENDED OR REPEALED BY THE LATER SPECIAL STATUTE. RODGERS V. UNITED STATES, 185 U.S. 83; TOWNSEND V. LITTLE, 109 U.S. 504. IT MUST BE HELD, THEREFORE, THAT WHERE SUPPLIES COVERED BY A GENERAL-SUPPLY CONTRACT ARE OF THE GROWTH, PRODUCTION, OR MANUFACTURE OF THE UNITED STATES, THE NEEDS OF THE NAVY DEPARTMENT ARE FOR SUPPLYING THEREUNDER THE SAME AS BEFORE THE PROVISION IN THE ACT OF FEBRUARY 28, 1931, WAS ENACTED. BUT WHERE THE SUPPLIES FURNISHED BY CONTRACTORS UPON THE GENERAL-SUPPLY SCHEDULE ARE NOT GROWN, PRODUCED, OR MANUFACTURED IN THIS COUNTRY, THE CONTRACTS UNDER THE GENERAL-SUPPLY SCHEDULE SHOULD BE DISREGARDED AND SUPPLIES OF AMERICAN GROWTH, PRODUCTION, OR MANUFACTURE PURCHASED ELSEWHERE. SEE, HOWEVER, 10 COMP. GEN. 536.

THE PROCEDURE TO BE FOLLOWED IN DETERMINING WHETHER SUPPLIES OFFERED BY THE GENERAL-SUPPLY CONTRACTORS ARE OF AMERICAN GROWTH, PRODUCTION, OR MANUFACTURE IS AN ADMINISTRATIVE MATTER FOR THE CONSIDERATION OF YOUR DEPARTMENT IN CONJUNCTION WITH THE TREASURY DEPARTMENT. BUT VOUCHERS COVERING PAYMENT FOR ARTICLES COVERED BY GENERAL-SUPPLY CONTRACTS MUST, IF THE PURCHASE WAS UNDER A GENERAL-SUPPLY CONTRACT, SHOW THAT THE ARTICLE IS OF AMERICAN GROWTH, PRODUCTION, OR MANUFACTURE OR THE REASON WHY ARTICLES OF AMERICAN GROWTH, PRODUCTION, OR MANUFACTURE WERE NOT PURCHASED, AND, IF THE PURCHASE IS NOT UNDER A GENERAL-SUPPLY CONTRACT, IT MUST BE SHOWN THAT THE ARTICLES COVERED BY SUCH CONTRACTS ARE NOT OF AMERICAN GROWTH, PRODUCTION, OR MANUFACTURE.

SHOULD YOU, IN THE EXERCISE OF THE DISCRETION CONFERRED UPON YOU BY THE STATUTE, DETERMINE IN ANY CASE THAT THE NECESSITY OF THE GOVERNMENT WILL NOT PERMIT THE PURCHASE OF SUPPLIES OF AMERICAN GROWTH, PRODUCTION, OR MANUFACTURE, THE VOUCHER COVERING PAYMENT THEREFOR SHOULD CONTAIN A CERTIFICATE TO THAT EFFECT.