A-70514, MARCH 25, 1936, 15 COMP. GEN. 844

A-70514: Mar 25, 1936

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1936: YOUR ATTENTION IS INVITED TO THE FOLLOWING CONTRACTS COVERING THE PURCHASE OF SUPPLIES FOR THE UNITED STATES MARINE HOSPITAL. SHOWING THAT THE ARTICLES COVERED BY SAID CONTRACTS COULD NOT HAVE BEEN PROCURED FROM THE SAID FEDERAL PRISON INDUSTRIES. WAS REQUESTED IN LETTER OF NOVEMBER 1. THE SURGEON GENERAL STATED AS FOLLOWS: RECEIPT IS ACKNOWLEDGED OF YOUR LETTER (REF. YOU ARE INFORMED THAT ASIDE FROM THE RECEIPT ON DECEMBER 20. OR INSTRUCTIONS HAVE BEEN RECEIVED FROM THE CORPORATION MENTIONED. UNDER THE CIRCUMSTANCES IT WAS NOT KNOWN THAT CLEARANCE WAS NECESSARY FOR THE PURCHASE OF THE ITEMS IN QUESTION FROM COMMERCIAL SOURCES. THE NECESSARY STEPS WILL BE TAKEN TO SECURE COPIES OF CURRENT REGULATIONS AND CATALOGUES ISSUED BY THE FEDERAL PRISON INDUSTRIES.

A-70514, MARCH 25, 1936, 15 COMP. GEN. 844

FEDERAL PRISON-MADE GOODS - PURCHASES OF SIMILAR ITEMS COMMERCIALLY PURCHASES INVOLVING REGULAR AS DISTINGUISHED FROM EMERGENCY RELIEF APPROPRIATIONS, MADE FROM PRIVATE BUSINESS FIRMS OF ARTICLES OR MATERIALS AVAILABLE AND REQUIRED BY STATUTE TO BE PURCHASED FROM THE FEDERAL PRISON INDUSTRIES, INC., DO NOT CREATE BINDING OBLIGATIONS ON THE UNITED STATES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, MARCH 25, 1936:

YOUR ATTENTION IS INVITED TO THE FOLLOWING CONTRACTS COVERING THE PURCHASE OF SUPPLIES FOR THE UNITED STATES MARINE HOSPITAL, SEATTLE, WASH., WHICH INCLUDE ITEMS OF CANVAS, RADIATOR BRUSHES, CUSPIDOR BRUSHES, COUNTER BRUSHES, AND RATTAN BROOMS:

T PH-12691, VAN WATERS AND ROGERS, INC., SEATTLE, WASH. PURCHASE OF CANVAS.

T PH-12689, PACKER SCOTT CO., SEATTLE, WASH. PURCHASE OF RADIATOR AND CUSPIDOR BRUSHES.

T PH-12690, SEATTLE HARDWARE CO., SEATTLE, WASH. PURCHASE OF RATTAN BROOMS AND COUNTER BRUSHES.

THERE NOT HAVING BEEN FILED WITH THE ABOVE CONTRACTS A CLEARANCE FROM THE FEDERAL PRISON INDUSTRIES, INC., SHOWING THAT THE ARTICLES COVERED BY SAID CONTRACTS COULD NOT HAVE BEEN PROCURED FROM THE SAID FEDERAL PRISON INDUSTRIES, INC., THE SURGEON GENERAL, UNITED STATES PUBLIC HEALTH SERVICE, WAS REQUESTED IN LETTER OF NOVEMBER 1, 1935, TO FURNISH INFORMATION AS TO THE REASON FOR THE PURCHASE FROM COMMERCIAL SOURCES. REPLY THERETO BY LETTER OF NOVEMBER 7, 1935, THE SURGEON GENERAL STATED AS FOLLOWS:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER (REF. A-DD-CE) DATED NOVEMBER 1, 1935, REGARDING THE PURCHASE FROM COMMERCIAL SOURCES OF CERTAIN CANVAS AND BRUSHES BY THE MARINE HOSPITAL AT SEATTLE, WASHINGTON. IN THE ABSENCE OF A CLEARANCE FROM THE COMMISSIONER OF INDUSTRIES, FEDERAL PRISON INDUSTRIES, INC., YOU REQUEST AN EXPLANATION AS TO THE REASONS FOR THE PURCHASES MENTIONED.

IN REPLY, YOU ARE INFORMED THAT ASIDE FROM THE RECEIPT ON DECEMBER 20, 1934, BY THIS BUREAU OF A COPY OF THE EXECUTIVE ORDER DATED DECEMBER 11, 1934, CREATING THE FEDERAL PRISON INDUSTRIES, C., NO REGULATIONS, CATALOGUES, OR INSTRUCTIONS HAVE BEEN RECEIVED FROM THE CORPORATION MENTIONED. UNDER THE CIRCUMSTANCES IT WAS NOT KNOWN THAT CLEARANCE WAS NECESSARY FOR THE PURCHASE OF THE ITEMS IN QUESTION FROM COMMERCIAL SOURCES.

THE NECESSARY STEPS WILL BE TAKEN TO SECURE COPIES OF CURRENT REGULATIONS AND CATALOGUES ISSUED BY THE FEDERAL PRISON INDUSTRIES, INC.

THE ACT OF FEBRUARY 11, 1924 (43 STAT. 6), PROVIDED:

THAT THE ATTORNEY GENERAL OF THE UNITED STATES IS AUTHORIZED AND DIRECTED TO ESTABLISH, EQUIP, MAINTAIN, AND OPERATE AT THE UNITED STATES PENITENTIARY, LEAVENWORTH, KANSAS, 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. * * *

SEC. 9. 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.

THE ACT OF MAY 27, 1930, 46 STAT. 391, TO PROVIDE FOR THE DIVERSIFICATION OF EMPLOYMENT OF FEDERAL PRISONERS, ETC., DIRECTED THE ATTORNEY GENERAL TO ESTABLISH SUCH INDUSTRIES AS WILL PRODUCE ARTICLES AND COMMODITIES FOR CONSUMPTION IN UNITED STATES PENAL AND CORRECTIONAL INSTITUTIONS OR FOR SALE TO THE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS OF THE GOVERNMENT, AND SECTION 7 OF SAID ACT EXPRESSLY PROVIDES THAT:

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 ACT OF JUNE 23, 1934, 48 STAT. 1211, PROVIDED FOR THE CREATION OF A CORPORATION TO BE KNOWN AS "FEDERAL PRISON INDUSTRIES" AND SECTION 3 THEREOF PROVIDED:

THE PRESIDENT SHALL TRANSFER TO SAID CORPORATION THE DUTY OF DETERMINING IN WHAT MANNER AND TO WHAT EXTENT INDUSTRIAL OPERATIONS SHALL BE CARRIED ON IN FEDERAL PENAL AND CORRECTIONAL INSTITUTIONS AND MAY TRANSFER TO SAID CORPORATION ANY PART OR ALL OF THE OTHER POWERS AND DUTIES NOW VESTED IN THE ATTORNEY GENERAL OR ANY OTHER OFFICER OR EMPLOYEE OF THE UNITED STATES BY SAID ACT OF MAY 27, 1930. * * *

IN VIEW OF THESE PROVISIONS OF THE STATUTES, OF WHICH ALL PERSONS ARE CHARGEABLE WITH NOTICE, THERE IS NO AUTHORITY OF LAW FOR ANY GOVERNMENT ACTIVITY TO PURCHASE FROM PRIVATE BUSINESS FIRMS ARTICLES OR MATERIALS WHICH ARE AVAILABLE FOR PURCHASE FROM THE FEDERAL PRISON INDUSTRIES, INC., PURSUANT TO SUCH STATUTES, AND PURCHASES CONTRARY TO SUCH PROVISIONS OF LAW MAY NOT BE RECOGNIZED AS CREATING ANY OBLIGATION ON THE PART OF THE GOVERNMENT TO PAY THEREFOR FROM APPROPRIATED FUNDS. SEE IN THIS CONNECTION CONSOLIDATED SUPPLY COMPANY V. UNITED STATES, 59 CT. CLS. 197, WHEREIN IT WAS HELD IN EFFECT, THAT OFFICERS CANNOT OBLIGATE THE UNITED STATES BY ACTING CONTRARY TO THE PROVISIONS OF THE STATUTES. IN SAID DECISION THE COURT STATED:

* * * WHERE A STATUTE IN EXPRESS LANGUAGE CIRCUMSCRIBES THE AUTHORITY AND POWER OF AN OFFICER OF THE GOVERNMENT AND EXPRESSLY DIRECTS THE MANNER OF SECURING SUPPLIES OF THE CHARACTER HERE FURNISHED, WE ARE NOT * * * AUTHORIZED IN HOLDING THE UNITED STATES LIABLE FOR A CONTRACT MADE IN DIRECT OPPOSITION TO EXISTING LAW.

* * * IF AN OFFICER OF THE GOVERNMENT IS POSITIVELY FORBIDDEN TO ENTER INTO A CONTRACT, AND IN ADDITION TO THIS IS MANDATORILY DIRECTED TO ACT IN A CERTAIN WAY UNDER PRESCRIBED CONDITIONS, HE MAY NOT DISREGARD THE MANDATE OF THE LAW AND OBLIGATE THE UNITED STATES IN SO DOING. HIS AUTHORITY TO ACT IS DERIVED FROM THE STATUTE.

SEE, ALSO, 8 COMP. GEN. 457; 10 ID. 206; 14 COMP. GEN. 270, 748.

AS IT IS NOT ESTABLISHED THAT THE ARTICLES COVERED BY THE CONTRACTS IN QUESTION COULD NOT HAVE BEEN PROCURED FROM THE FEDERAL PRISON INDUSTRIES, INC., AND AS THE CONTRACTS PURPORT TO OBLIGATE REGULAR, AS DISTINGUISHED FROM EMERGENCY RELIEF, APPROPRIATIONS, NO CREDIT MAY BE ALLOWED FOR PAYMENTS MADE ON ACCOUNT THEREOF.