A-57536, OCTOBER 1, 1934, 14 COMP. GEN. 270

A-57536: Oct 1, 1934

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THERE IS NO AUTHORITY FOR ALLOWING CREDIT IN THE ACCOUNTS OF DISBURSING OFFICERS FOR PAYMENTS MADE FOR ARTICLES PURCHASED COMMERCIALLY OF THE CLASSES MANUFACTURED BY THE FEDERAL PENTENTIARIES. UNLESS THERE BE A SHOWING THAT THE FEDERAL PENITENTIARIES WERE UNABLE TO FURNISH SUCH ARTICLES. THE TERMS OF WHICH ARE MANDATORY. CREDIT FOR THE PAYMENT WAS DISALLOWED FOR THE REASON THAT NO CLEARANCE FROM THE FEDERAL PENITENTIARY AT LEAVENWORTH. SAID LETTER IS. THE FORESTER WAS ADVISED BY MR. AS FURTHER STATED IT WAS NOT UNTIL DECEMBER 15. SINCE THIS WAS A SINGLE PURCHASE TO MEET IMMEDIATE EMERGENCY NEEDS AND DOES NOT INVOLVE IN ANY WAY THE QUESTION OF SUCCESSIVE PURCHASES WITHIN A SHORT PERIOD.

A-57536, OCTOBER 1, 1934, 14 COMP. GEN. 270

PURCHASE OF ARTICLES MANUFACTURED BY FEDERAL PENITENTIARIES UNDER THE PROVISIONS OF SECTION 9 OF THE ACT OF FEBRUARY 11, 1924, 43 STAT. 6, AND SECTION 7 OF THE ACT OF MAY 27, 1930, 46 STAT. 391, THERE IS NO AUTHORITY FOR ALLOWING CREDIT IN THE ACCOUNTS OF DISBURSING OFFICERS FOR PAYMENTS MADE FOR ARTICLES PURCHASED COMMERCIALLY OF THE CLASSES MANUFACTURED BY THE FEDERAL PENTENTIARIES, UNLESS THERE BE A SHOWING THAT THE FEDERAL PENITENTIARIES WERE UNABLE TO FURNISH SUCH ARTICLES, AND ALLEGED EMERGENCIES CONSTITUTE NO AUTHORITY FOR FAILURE TO COMPLY WITH THE PROVISIONS OF SAID STATUTES, THE TERMS OF WHICH ARE MANDATORY.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 1, 1934:

BY LETTER DATED AUGUST 9, 1934, W. E. THOMPSON, FISCAL AGENT, FOREST SERVICE, HAS REQUESTED A REVIEW OF THE DISALLOWANCE OF CREDIT OF $12.95 IN HIS DECEMBER 1933 ACCOUNT FOR A PAYMENT MADE TO GERTS, LUMBARD AND CO., CHICAGO, ILL., FOR 24 BRUSHES IN FOUR LOTS OF ONE HALF DOZEN EACH, ORDERED NOVEMBER 16, 1933, AND INVOICED ON VOUCHER 657, DECEMBER 1933. CREDIT FOR THE PAYMENT WAS DISALLOWED FOR THE REASON THAT NO CLEARANCE FROM THE FEDERAL PENITENTIARY AT LEAVENWORTH, KANS., WHICH WOULD PERMIT THE PURCHASE OF THE BRUSHES ELSEWHERE, ACCOMPANIED THE VOUCHER. SAID LETTER IS, IN PART, AS FOLLOWS:

AS STATED IN LETTER OF JUNE 8, 1934, FROM THE SECRETARY OF AGRICULTURE TO YOU (TO WHICH YOU REFER IN YOUR DECISION A-56176) BY LETTER DATED JULY 10, 1929, THE FORESTER WAS ADVISED BY MR. BARROWS, ASSISTANT PURCHASING AND SALES AGENT, OFFICE OF THE SUPERINTENDENT OF PRISONS, THAT IN THE FUTURE ORDERS FOR QUANTITIES EXCEEDING ONE DOZEN SHOULD BE PLACED WITH THAT OFFICE, A RELEASE COVERING THE PURCHASE OF ONE DOZEN OR LESS IN COMMERCIAL MARKET HAVING BEEN FURNISHED TO THE DIVISION OF PURCHASES, SALES, AND TRAFFIC, DEPARTMENT OF AGRICULTURE, AND AS FURTHER STATED IT WAS NOT UNTIL DECEMBER 15, 1933, THAT THE OFFICE OF THE SUPERINTENDENT OF PRISONS WITHDREW THE WAIVER. AND AS STATED IN REPLY OF JUNE 13, 1934, NOTICE OF THIS WITHDRAWAL DID NOT REACH THIS LABORATORY UNTIL JANUARY 1934.

SINCE THIS WAS A SINGLE PURCHASE TO MEET IMMEDIATE EMERGENCY NEEDS AND DOES NOT INVOLVE IN ANY WAY THE QUESTION OF SUCCESSIVE PURCHASES WITHIN A SHORT PERIOD, AND SINCE THE PURCHASE WAS ENTIRELY WITHIN THE TERMS OF THE WAIVER WHICH WE HAD BEEN INSTRUCTED TO FOLLOW AND HAD FOLLOWED SINCE JULY 1929 IT IS RESPECTFULLY REQUESTED THAT THE DISALLOWANCE IN THIS CASE BE RAISED.

SECTION 9 OF THE ACT OF FEBRUARY 11, 1924, 43 STAT. 6, PROVIDES:

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.

SECTION 7 OF THE ACT OF MAY 27, 1930, 46 STAT. 391, PROVIDES:

THE SEVERAL FEDERAL DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS AND ALL OTHER GOVERNMENT INSTITUTIONS OF THE UNITED STATES SHALL PURCHASE AT NOT TO EXCEED CURRENT MARKET PRICES, SUCH PRODUCTS OF THE INDUSTRIES HEREIN AUTHORIZED TO BE CARRIED ON AS MEET THEIR REQUIREMENTS AND AS MAY BE AVAILABLE AND ARE AUTHORIZED BY THE APPROPRIATIONS FROM WHICH SUCH PURCHASES ARE MADE. * *

THE EFFECT OF THESE PROVISIONS HAS BEEN CONSIDERED IN NUMEROUS DECISIONS OF THIS OFFICE. SEE, PARTICULARLY, 8 COMP. GEN. 457; A 40939, MARCH 4, 1932.

THERE IS NO AUTHORITY FOR ALLOWING CREDIT FOR A PAYMENT MADE FOR BRUSHES PURCHASED COMMERCIALLY UNLESS THERE BE A SHOWING THAT THE FEDERAL PENITENTIARY WAS UNABLE TO FURNISH THE BRUSHES. A-45472, NOVEMBER 17, 1932, A-51394, OCTOBER 16, 1933. NO SHOWING HAS BEEN MADE IN THE INSTANT CASE THAT THE BRUSHES NEEDED COULD NOT HAVE BEEN DELIVERED BY THE LEAVENWORTH PENITENTIARY. THE ADMINISTRATIVE OFFICE SHOULD HAVE MADE INQUIRY FROM TIME TO TIME OF THE SUPERINTENDENT OF PRISONS AS TO WHETHER THE CONDITIONS STATED IN THE LETTER OF JULY 10, 1929, SUPRA, CONTINUED TO EXIST OR HAD CHANGED TO SUCH AN EXTENT THAT THE BRUSHES NEEDED BY THE FOREST SERVICE COULD HAVE BEEN SUPPLIED BY THE FEDERAL PENITENTIARY. SEE DECISION OF JULY 5, 1934, A-56176.

WITH RESPECT TO THE ALLEGATION OF AN IMMEDIATE EMERGENCY AS A REASON FOR ALLOWANCE OF CREDIT FOR THE PAYMENT IN QUESTION, IT IS TO BE NOTED THAT THE ACTS OF FEBRUARY 11, 1924, AND MAY 27, 1930, SUPRA, DO NOT CONTAIN ANY PROVISION EXEMPTING PURCHASES ON ACCOUNT OF EMERGENCIES. THIS OFFICE HAS UNIFORMLY HELD THAT ALLEGED EMERGENCIES ARE NO AUTHORITY FOR FAILING TO COMPLY WITH THE PROVISIONS OF THE ABOVE MENTIONED ACTS, THE TERMS OF WHICH ARE MANDATORY ON THE VARIOUS DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT. A-41111, MARCH 5, 1932; A-45472, NOVEMBER 17, 1932; AND A- 56942, AUGUST 29, 1934.

ACCORDINGLY, THE DISALLOWANCE OF CREDIT FOR THE PAYMENT IN QUESTION MUST BE AND IS SUSTAINED.