A-80193, SEPTEMBER 25, 1936, 16 COMP. GEN. 312

A-80193: Sep 25, 1936

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NOTWITHSTANDING THE PURCHASES ARE ALLEGED TO HAVE BEEN MADE IN GOOD FAITH AND ON ACCOUNT OF EMERGENCY CONDITIONS. CREDIT FOR THE AMOUNT SO PAID WAS DISALLOWED FOR THE REASON THAT THE PAINTERS' DUST BRUSHES SHOULD HAVE BEEN OBTAINED FROM THE FEDERAL PENITENTIARY. THE BRUSHES COVERED BY SUBJECT VOUCHER WERE REQUIRED IN AN EMERGENCY TO INCREASE THE LOCAL STOCK SUFFICIENTLY TO PERMIT THE ISSUE OF A GREATER QUANTITY THAN WAS THEN AVAILABLE. THE AVERAGE ISSUE OF THIS SIZE AND TYPE BRUSH IS ONLY SIX (6) PER YEAR. TEN (10) WERE ON HAND. OF WHICH ONLY SIX (6) WERE AVAILABLE FOR CURRENT ISSUE. FULL STOCKS OF BRUSHES ARE REGULARLY REQUISITIONED ON THE BUREAU OF SUPPLIES AND ACCOUNTS. IT WAS CONSIDERED THAT REFERENCE (B) AUTHORIZED SUCH PURCHASES.

A-80193, SEPTEMBER 25, 1936, 16 COMP. GEN. 312

FEDERAL PRISON-MADE GOODS - PURCHASES OF SIMILAR ITEMS COMMERCIALLY COMMERCIAL PURCHASES OF SUPPLIES OBTAINABLE FROM FEDERAL PRISON INDUSTRIES, INC., WITHOUT CLEARANCE FROM SAID CORPORATION, BEING IN CONTRAVENTION OF THE STATUTES, CREATE NO OBLIGATION ON THE GOVERNMENT FOR PAYMENT THEREFOR FROM APPROPRIATED FUNDS, NOTWITHSTANDING THE PURCHASES ARE ALLEGED TO HAVE BEEN MADE IN GOOD FAITH AND ON ACCOUNT OF EMERGENCY CONDITIONS.

ACTING COMPTROLLER GENERAL ELLIOTT TO LT.COMDR. ARTHUR REMBERT, UNITED STATES NAVY, SEPTEMBER 25, 1936:

BY FIRST ENDORSEMENT OF AUGUST 11, 1936, THE PAYMASTER GENERAL OF THE NAVY TRANSMITTED YOUR LETTER OF JULY 24, 1936, REQUESTING REVIEW OF A DISALLOWANCE OF CREDIT FOR $9 PAID ON VOUCHER NO. 3048 OF YOUR FEBRUARY 1935 ACCOUNT AS DISBURSING OFFICER, NAVY YARD, SOUTH CAROLINA, COVERING THE PURCHASE FROM WOLFE BRUSH CO. OF EIGHT PAINTERS' DUST BRUSHES, FLAT 4 1/4 INCHES WIDE. CREDIT FOR THE AMOUNT SO PAID WAS DISALLOWED FOR THE REASON THAT THE PAINTERS' DUST BRUSHES SHOULD HAVE BEEN OBTAINED FROM THE FEDERAL PENITENTIARY.

IN SUPPORT OF THE REQUEST FOR REVIEW YOU FORWARDED COPY OF A LETTER, DATED OCTOBER 17, 1935, FROM THE SUPPLY OFFICER, AS FOLLOWS:

1. THE BRUSHES COVERED BY SUBJECT VOUCHER WERE REQUIRED IN AN EMERGENCY TO INCREASE THE LOCAL STOCK SUFFICIENTLY TO PERMIT THE ISSUE OF A GREATER QUANTITY THAN WAS THEN AVAILABLE. THE AVERAGE ISSUE OF THIS SIZE AND TYPE BRUSH IS ONLY SIX (6) PER YEAR. TEN (10) WERE ON HAND; OF WHICH ONLY SIX (6) WERE AVAILABLE FOR CURRENT ISSUE, FOUR (4) BEING COVERED BY PRIOR RESERVATIONS.

2. FULL STOCKS OF BRUSHES ARE REGULARLY REQUISITIONED ON THE BUREAU OF SUPPLIES AND ACCOUNTS. IN THIS INSTANCE, DUE TO THE SMALL QUANTITY REQUIRED AND THE VALUE INVOLVED BEING LESS THAN $10, IT WAS CONSIDERED THAT REFERENCE (B) AUTHORIZED SUCH PURCHASES, IT BEING OBVIOUS THAT PROCUREMENT FROM THE U.S. PENITENTIARY VIA REQUISITION ON THE BUREAU OF SUPPLIES AND ACCOUNTS WOULD BE IMPRACTICABLE AS THE USUAL PERIOD REQUIRED FOR DELIVERY IN THIS MANNER IS APPROXIMATELY SIXTY (60) TO NINETY (90) DAYS AFTER SUBMISSION OF REQUISITION. HOWEVER, THROUGH AN INADVERTENCE THE PARTICULAR ITEM WAS NOT CHECKED AGAINST THOSE EXCEPTIONS IN REFERENCE (C).

3. IT IS NOT REQUESTED THAT CLEARANCE BE OBTAINED IN ORDER THAT G.A.O. EXCEPTION CAN BE COMPLIED WITH.

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. * * *

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 REGULAR 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 CO. 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. 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 ID. 270, 748.

IN THIS CASE IT IS SHOWN THAT NOTWITHSTANDING THE SUPPLIES PURCHASED COULD HAVE BEEN FURNISHED BY THE FEDERAL PRISON INDUSTRIES, INC., PURCHASE WAS MADE COMMERCIALLY IN CONTRAVENTION TO THE ACT, SUPRA. THE FACT THAT THE PURCHASE IS ALLEGED TO HAVE BEEN MADE IN GOOD FAITH, OR ON ACCOUNT OF EMERGENCY CONDITIONS, MAY NOT BE ACCEPTED AS AUTHORIZING THE PURCHASE IN DIRECT CONTRAVENTION OF THE MANDATORY PROVISIONS OF THE ACTS, SUPRA. ..END