A-69916, MARCH 6, 1936, 15 COMP. GEN. 763

A-69916: Mar 6, 1936

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OR THOSE FROM WHICH THEY ARE MANUFACTURED. ARE NOT MINED. SUCH DETERMINATION ONCE MADE IS SUFFICIENT ONLY SO LONG AS SUCH FINDING CONTINUES CORRECT. INDEPENDENT DETERMINATIONS TO THE SAME EFFECT BY THE PURCHASING AGENCIES ARE NOT NECESSARY. IF THE FINDINGS OF THE SECRETARY OF THE TREASURY IN THIS REGARD ARE NOT SUFFICIENT. ARE BEING RECEIVED FROM YOUR OFFICE IN THE SEVERAL BUREAUS OF THIS DEPARTMENT. SUPPLIES AS HAVE BEEN MINED OR PRODUCED IN THE UNITED STATES. SUPPLIES AS HAVE BEEN MANUFACTURED IN THE UNITED STATES SUBSTANTIALLY ALL FROM ARTICLES. UNLESS THE HEAD OF THE DEPARTMENT CONCERNED SHALL DETERMINE (1) THAT SUCH PROCUREMENT IS INCONSISTENT WITH THE PUBLIC INTEREST OR (2) THAT THE COST IS UNREASONABLE.

A-69916, MARCH 6, 1936, 15 COMP. GEN. 763

CONTRACTS - FOREIGN PRODUCTS - CERTIFICATES REQUIRED THE FINDING REQUIRED BY THE SECOND SENTENCE OF SECTION 2 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1520, THAT THE ARTICLES, MATERIALS, OR SUPPLIES TO BE USED FOR PUBLIC PURPOSES, OR THOSE FROM WHICH THEY ARE MANUFACTURED, ARE NOT MINED, PRODUCED, OR MANUFACTURED IN THE UNITED STATES IN SUFFICIENT AND REASONABLY AVAILABLE COMMERCIAL QUANTITIES, AND OF A SATISFACTORY QUALITY, MAY BE MADE BY SUBORDINATE OFFICERS SPECIFICALLY DESIGNATED BY THE HEADS OF THE DEPARTMENTS, BUT SUCH DETERMINATION ONCE MADE IS SUFFICIENT ONLY SO LONG AS SUCH FINDING CONTINUES CORRECT. THE SECRETARY OF THE TREASURY MAY MAKE DETERMINATIONS, IN AWARDING CONTRACTS UNDER THE GENERAL SCHEDULE OF SUPPLIES, EXTENDING TO THE PROCUREMENT BY OTHER GOVERNMENT AGENCIES, PURSUANT TO SAID SCHEDULE, WITH REFERENCE TO THE ACT OF MARCH 3, 1933, 47 STAT. 1520, PROHIBITING THE PURCHASE OF ARTICLES, MATERIALS, OR SUPPLIES, IF NOT MINED, PRODUCED, OR MANUFACTURED IN THE UNITED STATES EXCEPT UNDER SPECIFIED CIRCUMSTANCES, AND INDEPENDENT DETERMINATIONS TO THE SAME EFFECT BY THE PURCHASING AGENCIES ARE NOT NECESSARY, BUT, IF THE FINDINGS OF THE SECRETARY OF THE TREASURY IN THIS REGARD ARE NOT SUFFICIENT, PAYMENTS BY THE PURCHASING AGENCIES MUST NECESSARILY BE QUESTIONED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, MARCH 6, 1936:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 11, 1936, AS FOLLOWS:

NOTICES OF AMOUNTS SUSPENDED OR DISALLOWED, STANDARD FORM 2084, ARE BEING RECEIVED FROM YOUR OFFICE IN THE SEVERAL BUREAUS OF THIS DEPARTMENT, REQUIRING CERTIFICATES SIGNED BY THE HEAD OF THE DEPARTMENT IN CONNECTION WITH THE PROCUREMENT OF ARTICLES, MATERIALS, AND SUPPLIES OF FOREIGN ORIGIN.

SECTION 2 OF TITLE III OF THE ACT OF MARCH 3, 1933 (47 STAT. 1520), PROVIDES THAT ONLY SUCH UNMANUFACTURED ARTICLES, MATERIALS, AND SUPPLIES AS HAVE BEEN MINED OR PRODUCED IN THE UNITED STATES, AND ONLY SUCH MANUFACTURED ARTICLES, MATERIALS, AND SUPPLIES AS HAVE BEEN MANUFACTURED IN THE UNITED STATES SUBSTANTIALLY ALL FROM ARTICLES, MATERIALS, OR SUPPLIES MINED, PRODUCED, OR MANUFACTURED AS THE CASE MAY BE, IN THE UNITED STATES, SHALL BE ACQUIRED FOR PUBLIC USE, UNLESS THE HEAD OF THE DEPARTMENT CONCERNED SHALL DETERMINE (1) THAT SUCH PROCUREMENT IS INCONSISTENT WITH THE PUBLIC INTEREST OR (2) THAT THE COST IS UNREASONABLE. THE SECOND SENTENCE OF THE SECTION PROVIDES THAT THE SECTION SHALL NOT APPLY WITH RESPECT TO ARTICLES, MATERIALS, OR SUPPLIES IF ARTICLES, MATERIALS, OR SUPPLIES OF THE CLASS OR KIND TO BE USED, OR THE ARTICLES, MATERIALS, OR SUPPLIES FROM WHICH THEY ARE MANUFACTURED ARE NOT MINED, PRODUCED, OR MANUFACTURED AS THE CASE MAY BE, IN THE UNITED STATES IN SUFFICIENT AND REASONABLY AVAILABLE COMMERCIAL QUANTITIES AND OF A SATISFACTORY QUALITY, BUT APPARENTLY DOES NOT REQUIRE A CERTIFICATION OF THE FACTS BY THE HEAD OF THE DEPARTMENT.

IN 14 COMP. GEN. 381 IT WAS HELD THE ACT CONTAINED NO PROVISION FOR A DELEGATION OF AUTHORITY AND THAT THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED MUST MAKE THE DETERMINATION IN RESPECT TO ARTICLES, MATERIALS, OR SUPPLIES MENTIONED IN THE FIRST SENTENCE OF THE SECTION CITED AS WELL AS THOSE MENTIONED IN THE SECOND SENTENCE OF THAT SECTION.

THE QUESTIONS THAT NOW PRESENT THEMSELVES ARE WHETHER, IN AWARDING CONTRACTS UNDER THE GENERAL SCHEDULE OF SUPPLIES THE SECRETARY OF THE TREASURY MAY MAKE DETERMINATIONS WHICH WILL EXTEND TO THE SECRETARY OF AGRICULTURE IN THE PROCUREMENT OF ARTICLES, MATERIALS, OR SUPPLIES FROM THE CONTRACTORS. FOR EXAMPLE, IF, WHEN AN AWARD IS MADE BY THE DIRECTOR OF PROCUREMENT OR OTHER CONTRACTING OFFICER, THE SECRETARY OF THE TREASURY DETERMINES THAT SIMILAR ARTICLES ARE NOT PRODUCED OR MANUFACTURED IN THE UNITED STATES IN SUFFICIENT AND REASONABLY AVAILABLE COMMERCIAL QUANTITIES AND OF SATISFACTORY QUALITY AND THE ARTICLES ARE LISTED IN THE GENERAL SCHEDULE OF SUPPLIES, WILL IT BE NECESSARY THAT THE SECRETARY OF AGRICULTURE MAKE A SIMILAR DETERMINATION WHEN THE ARTICLES ARE PROCURED FOR THE USE OF THE DEPARTMENT OF AGRICULTURE?

IT IS COMMON KNOWLEDGE THAT RUBBER, CORK, TEA, COFFEE, ETC., ARE NOT PRODUCED COMMERCIALLY IN THE UNITED STATES, IN VIEW OF WHICH IT SEEMS THAT IF CERTIFICATION OF THAT FACT IS REQUIRED IT COULD PROPERLY BE MADE BY A CONTRACTING OR OTHER OFFICER FAMILIAR THEREWITH. IF IT IS NECESSARY THAT THE HEAD OF THE DEPARTMENT DETERMINE THAT MATERIALS AND SUPPLIES TO BE PROCURED ARE COMPOSED CHIEFLY OF MATERIALS NOT PRODUCED COMMERCIALLY IN THE UNITED STATES WILL THE REQUIREMENTS OF THE STATUTE BE SATISFIED IF HE DETERMINES THAT ARTICLES MANUFACTURED IN THE UNITED STATES FROM SUCH MATERIALS MAY BE PROCURED, FROM TIME TO TIME IN THE FUTURE, FOR THE USE OF THE DEPARTMENT?

THE DECISIONS REPORTED IN 14 COMP. GEN. 381 AND 601 ARE TO THE EFFECT THAT WHILE THE DETERMINATION REQUIRED BY THE FIRST SENTENCE OF SECTION 2, TITLE III, OF THE ACT OF MARCH 3, 1933, 47 STAT. 1520, INVOLVING THE EXERCISE OF PERSONAL JUDGMENT AND DISCRETION, MUST BE MADE BY THE HEAD OF THE DEPARTMENT CONCERNED AND THAT AUTHORITY TO MAKE SUCH DETERMINATION CANNOT BE DELEGATED, THE SHOWING REQUIRED BY THE SECOND SENTENCE--- THAT IS, A SHOWING THAT THE ARTICLES, MATERIALS, OR SUPPLIES TO BE USED OR THOSE FROM WHICH THEY ARE MANUFACTURED ARE NOT MINED, PRODUCED, OR MANUFACTURED IN THE UNITED STATES IN SUFFICIENT AND REASONABLY AVAILABLE COMMERCIAL QUANTITIES AND OF A SATISFACTORY QUALITY--- MAY BE MADE EITHER BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED OR BY SUBORDINATES TO WHOM THAT DUTY HAS BEEN ASSIGNED. THAT IS TO SAY, THE EXISTENCE OF SUCH FACTS MAY BE ESTABLISHED BEFORE THIS OFFICE IN LIKE MANNER AS OTHER FACTS NECESSARY TO SUPPORT A CLAIM FOR PAYMENT OR FOR CREDIT ARE REQUIRED TO BE ESTABLISHED. IN CONFORMITY THEREWITH YOU ARE ADVISED THAT THE FINDING REQUIRED BY THE SECOND SENTENCE OF SECTION 2 OF THE ACT, SUPRA, MAY BE MADE BY A SUBORDINATE OFFICER OR OFFICERS OF YOUR DEPARTMENT SPECIFICALLY DESIGNATED BY YOU FOR THE PURPOSE, ACCOMPANIED BY A PROPER SHOWING OF FACTS IN SUPPORT OF SUCH FINDING. EVIDENCE OF THE OFFICERS' DESIGNATION SHOULD BE FILED HERE. YOUR SUGGESTION IN THE LAST PARAGRAPH OF YOUR LETTER THAT A DETERMINATION IN THAT BEHALF ONCE MADE WOULD BE SUFFICIENT TO JUSTIFY PROCUREMENT OF SUCH MATERIALS, ETC., FROM TIME TO TIME IN THE FUTURE, IS SUBJECT TO THE QUALIFICATION THAT SUCH FINDING CONTINUES TO BE CORRECT. IT MUST BE RECOGNIZED THAT DOMESTIC CONDITIONS OF PRODUCTION AND MANUFACTURE ARE CONSTANTLY CHANGING AND ARTICLES, MATERIALS, ETC., NOT COMMERCIALLY PRODUCED IN THIS COUNTRY TODAY MAY BE AVAILABLE AT A FUTURE TIME.

YOUR QUESTION AS TO WHETHER IN AWARDING CONTRACTS UNDER THE GENERAL SCHEDULE OF SUPPLIES, THE SECRETARY OF THE TREASURY MAY MAKE DETERMINATIONS WHICH WILL EXTEND TO THE SECRETARY OF AGRICULTURE IN THE PROCUREMENT OF ARTICLES, MATERIALS, OR SUPPLIES FROM THE CONTRACTORS, IS ANSWERED IN THE AFFIRMATIVE. THE BLANKET CONTRACTS UNDER SAID GENERAL SCHEDULE ARE CONSUMMATED BY THE SECRETARY OF THE TREASURY WHO IS THE PROPER OFFICER TO MAKE THE DETERMINATIONS REQUIRED BY THE STATUTE UNDER THE CONTRACTS. PURCHASES BY EXECUTIVE DEPARTMENTS AND OTHER GOVERNMENT ESTABLISHMENTS EXCEPT AS OTHERWISE PROVIDED BY LAW, ARE SUBJECT TO THOSE CONTRACTS AND AN INDEPENDENT FINDING TO THE SAME EFFECT BY THE HEADS OF SUCH OTHER DEPARTMENTS AND ESTABLISHMENTS WOULD NOT APPEAR NECESSARY. HOWEVER, AS WILL APPEAR FROM THE TWO CITED DECISIONS IN 14 COMP. GEN. 381 AND 601, THERE IS INVOLVED THE QUESTION WHETHER THE FINDINGS OF THE SECRETARY OF THE TREASURY ARE SUFFICIENT UNDER THE STATUTE. WHEN THE RECORDS OF THIS OFFICE DO NOT DISCLOSE SUCH PROPER FINDINGS WITH REFERENCE TO THE GENERAL SUPPLY SCHEDULE CONTRACTS, IT IS NECESSARY TO QUESTION PAYMENTS BY OTHER DEPARTMENTS AND ESTABLISHMENTS FOR PURCHASES MADE FROM THE CONTRACTORS. WHEN THE RECORDS OF THIS OFFICE DISCLOSE PROPER FINDINGS BY THE SECRETARY OF THE TREASURY PURSUANT TO THE STATUTE, SUCH FINDINGS WILL BE ACCEPTED BY THIS OFFICE AS APPLICABLE TO PURCHASES BY OTHER DEPARTMENTS AND ESTABLISHMENTS UNDER GENERAL SUPPLY SCHEDULE CONTRACTS, IF OTHERWISE FREE FROM OBJECTION.