A-86567, AUGUST 9, 1937, 17 COMP. GEN. 113

A-86567: Aug 9, 1937

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ENVELOPES - NEGATIVE PRESERVERS - DEPARTMENTAL PURCHASE JURISDICTION WHERE THE ADVERTISING FOR BIDS BY THE POSTMASTER GENERAL FOR NEGATIVE PRESERVERS UNDER A DETERMINATION THAT THEY WERE ENVELOPES WITHIN THE PURVIEW OF THE ACT OF JUNE 26. WAS NOT SO CLEARLY ERRONEOUS AS TO REQUIRE DISAGREEMENT BY THE GENERAL ACCOUNTING OFFICE. IS FOR SUBMISSION TO THE ATTORNEY GENERAL FOR HIS OPINION. AS FOLLOWS: THIS OFFICE IS IN RECEIPT OF YOUR DECISION NO. THE DECISION AROSE FROM A LETTER OF THE POSTMASTER GENERAL EXPLAINING THAT NEGATIVE PRESERVERS WERE BEING PURCHASED FOR THE VETERANS' ADMINISTRATION BY SOLICITING BIDS. THIS OFFICE IS NOT REQUIRED TO OBJECT TO THE AWARD OF THE CONTRACT TO THE P. HAS FOR MANY YEARS CONTRACTED FOR NEGATIVE PRESERVERS ON THE THEORY THAT THEY WERE NOT ENVELOPES.

A-86567, AUGUST 9, 1937, 17 COMP. GEN. 113

ENVELOPES - NEGATIVE PRESERVERS - DEPARTMENTAL PURCHASE JURISDICTION WHERE THE ADVERTISING FOR BIDS BY THE POSTMASTER GENERAL FOR NEGATIVE PRESERVERS UNDER A DETERMINATION THAT THEY WERE ENVELOPES WITHIN THE PURVIEW OF THE ACT OF JUNE 26, 1906, 34 STAT. 476, REQUIRING PURCHASE THROUGH HIM, WAS NOT SO CLEARLY ERRONEOUS AS TO REQUIRE DISAGREEMENT BY THE GENERAL ACCOUNTING OFFICE, THE MATTER OF CONFLICTING JURISDICTION ARISING BECAUSE OF THE CONTRACTING BY THE TREASURY DEPARTMENT FOR IDENTICAL ITEMS, IF NOT POSSIBLE OF ADJUSTMENT BETWEEN THE DEPARTMENT HEADS CONCERNED, IS FOR SUBMISSION TO THE ATTORNEY GENERAL FOR HIS OPINION, AND NOT FOR DETERMINATION BY THE GENERAL ACCOUNTING OFFICE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, AUGUST 9, 1937:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 23, 1937, AS FOLLOWS:

THIS OFFICE IS IN RECEIPT OF YOUR DECISION NO. A-86567 RENDERED TO THE POSTMASTER GENERAL UNDER DATE OF JUNE 21, 1937. THE DECISION AROSE FROM A LETTER OF THE POSTMASTER GENERAL EXPLAINING THAT NEGATIVE PRESERVERS WERE BEING PURCHASED FOR THE VETERANS' ADMINISTRATION BY SOLICITING BIDS, RATHER THAN FROM THE CONTRACTOR UNDER THE GENERAL SCHEDULE OF SUPPLIES, IN ACCORDANCE WITH TITLE 39, SECTION 355, U.S. CODE, WHICH PROVIDES THAT THE POSTMASTER GENERAL SHALL CONTRACT FOR ALL ENVELOPES. IN ANSWER TO THE LETTER OF THE POSTMASTER GENERAL, YOU STATE THAT: "IN VIEW OF THE TERMS OF SAID STATUTE AND THE FACTS APPEARING, THIS OFFICE IS NOT REQUIRED TO OBJECT TO THE AWARD OF THE CONTRACT TO THE P. L. ANDREWS CORPORATION AS THE LOWEST RESPONSIBLE BIDDER FOR DELIVERY OF THE ENVELOPES.'

THE PROCUREMENT DIVISION, AND BEFORE IT THE GENERAL SUPPLY COMMITTEE, HAS FOR MANY YEARS CONTRACTED FOR NEGATIVE PRESERVERS ON THE THEORY THAT THEY WERE NOT ENVELOPES. NEGATIVE PRESERVERS DO NOT CONFORM TO THE GENERAL CONCEPTION OF AN ENVELOPE IN THAT THEY DO NOT HAVE A FLAP OF ANY SORT, GUMMED OR OTHERWISE, AND THEY CANNOT BE SEALED OR TIED SHUT IN ANY FASHION; THEY CANNOT, IN SHORT, COMPLETELY ENVELOP MATERIAL BECAUSE OF THEIR CONSTRUCTION, OPEN AT ONE END. THEY ARE NOT DESIGNED TO TRANSMIT MATERIAL OF ANY CHARACTER, BUT SOLELY TO PRESERVE PHOTOGRAPHIC NEGATIVES. IF ANY TERM OTHER THAN "NEGATIVE PRESERVERS" BE USED TO DESIGNATE THEM, THE TERM ,FILING JACKET" WOULD MOST NEARLY MEET THEIR DESCRIPTION.

THE FEDERAL SPECIFICATION (NO. G-P-641) APPLYING TO NEGATIVE PRESERVERS DOES NOT USE THE WORD ,ENVELOPE" ANYWHERE, NOR DOES THE DESCRIPTION OF THIS ARTICLE AS CARRIED IN THE GENERAL SCHEDULE OF SUPPLIES. IT IS NOTED THAT, ALTHOUGH POST OFFICE DEPARTMENT INVITATION NO. 138 (ISSUED MAY 6 AND OPENED MAY 19, 1937) CALLS THE PRESERVERS "ENVELOPES," THE DESCRIPTION "PRESERVERS; NEGATIVE, PAPER, PHOTOGRAPHIC" IS INSERTED IMMEDIATELY THEREAFTER, WHICH DESCRIPTION IS IDENTICAL WITH THAT SHOWN IN THE GENERAL SCHEDULE OF SUPPLIES. MOREOVER, IT IS ALSO NOTED THAT THE POST OFFICE DEPARTMENT INVITATION REQUIRES COMPLIANCE WITH FEDERAL SPECIFICATION NO. G -P-641.

NEGATIVE PRESERVERS ARE AT PRESENT CARRIED IN THE GENERAL SCHEDULE OF SUPPLIES UNDER ITEM NUMBERS 18-P-24320 TO 18-P-24375, INCLUSIVE, CONTRACTS FOR THE VARIOUS SIZES HAVING BEEN MADE WITH G. GENNERT, INC. (TPS. NO. 15742), MATHERS-LAMM PAPER COMPANY (TPS. NO. 15750), PICKER X-RAY CORP. (TPS. NO. 15759) AND WILLIAMS, BROWN AND EARLE, INC. (TPS. NO. 15777). THESE CONTRACTS WERE AWARDED FOR THE PERIOD JANUARY 1 TO DECEMBER 31, 1937, AND PROVIDE FOR PURCHASE OF NEGATIVE PRESERVERS BY ALL GOVERNMENT ACTIVITIES IN THE DISTRICT OF COLUMBIA, AS WELL AS BY CERTAIN FIELD SERVICES. IF THE PURCHASE OF NEGATIVE PRESERVERS BY THE POST OFFICE DEPARTMENT WAS INTENDED FOR USE BY ANY GOVERNMENT ACTIVITY IN THE DISTRICT OF COLUMBIA, IT WOULD SEEM THAT SUCH PURCHASE SHOULD HAVE BEEN MADE UNDER THE GENERAL SCHEDULE OF SUPPLIES.

IT IS REQUESTED THAT YOU ADVISE WHETHER OR NOT THE EFFECT OF YOUR DECISION WAS INTENDED TO BE THAT NEGATIVE PRESERVERS SHOULD BE CLASSIFIED AS ENVELOPES AND, IF IT WAS SO INTENDED, THAT YOU ADVISE THIS OFFICE REGARDING THE CONSEQUENT STATUS OF THE EXISTING CONTRACTS FOR NEGATIVE PRESERVERS UNDER THE GENERAL SCHEDULE OF SUPPLIES.

THE QUESTION BEFORE THIS OFFICE IN THE REFERRED TO DECISION OF JUNE 21, 1937, WAS WHETHER THERE SHOULD BE WITHHELD THE USES OF APPROPRIATED MONEYS FOR MAKING PAYMENTS UNDER A CONTRACT TO BE AWARDED BY THE POSTMASTER GENERAL TO THE LOWEST RESPONSIBLE BIDDER AT A PRICE LESS THAN THAT STIPULATED IN TREASURY DEPARTMENT CONTRACT 15750 FOR THE DELIVERY OF CERTAIN CONTAINER ENVELOPES FOR USE BY THE VETERANS' ADMINISTRATION. THE CONTRACT HAD BEEN RECOMMENDED FOR AWARD UNDER THE TERMS OF THE ACT OF JUNE 26, 1906, 34 STAT. 476, WHICH PROVIDED IN PERTINENT PART THAT:

* * * THE POSTMASTER-GENERAL SHALL CONTRACT, FOR A PERIOD NOT EXCEEDING FOUR YEARS, FOR ALL ENVELOPES, STAMPED OR OTHERWISE, DESIGNED FOR SALE TO THE PUBLIC, OR FOR USE BY THE POST OFFICE DEPARTMENT, THE POSTAL SERVICE, AND OTHER EXECUTIVE DEPARTMENTS, AND ALL GOVERNMENT BUREAUS AND ESTABLISHMENTS, AND THE BRANCHES OF THE SERVICE COMING UNDER THEIR JURISDICTION, AND MAY CONTRACT FOR THEM TO BE PLAIN OR WITH SUCH PRINTED MATTER AS MAY BE PRESCRIBED BY THE DEPARTMENT MAKING REQUISITION THEREFOR:

THE WORD "ENVELOPE" IS DEFINED IN WEBSTER'S NEW INTERNATIONAL DICTIONARY, PAGE 733, TO BE:

THAT WHICH ENVELOPS; A WRAPPER; AN INCLOSING COVER; ESP., THE COVER OR WRAPPER OF A DOCUMENT AS OF A LETTER.

THE ENVELOPES IN THIS CASE WERE FOR THE PURPOSE OF FILING PHOTOGRAPHIC NEGATIVES, AND, WHILE THEY HAD NO FLAP FOR SEALING, THE POSTMASTER GENERAL CONCLUDED THEY WERE ENVELOPES WITHIN THE PURVIEW OF THE ACT OF JUNE 26, 1906, AND, ACCORDINGLY, IN RESPONSE TO A REQUISITION OF THE VETERANS' ADMINISTRATION, HE ADVERTISED FOR BIDS FOR FURNISHING SAME AND RECEIVED AN OFFER OF $9.95 PER THOUSAND AS COMPARED WITH THE PRICE OF $14.30 PER THOUSAND STIPULATED IN THE TREASURY DEPARTMENT CONTRACT. HIS ACTION WAS NOT SO CLEARLY ERRONEOUS AS TO REQUIRE THIS OFFICE TO DISAGREE THEREWITH.

WITH RESPECT TO YOUR QUESTION AS TO THE CONSEQUENT STATUS OF THE EXISTING CONTRACTS FOR NEGATIVE PRESERVERS UNDER THE GENERAL SCHEDULE OF SUPPLIES, YOU ARE ADVISED THAT IF, IN FACT, SUCH PRESERVERS ARE "ENVELOPES" WITHIN THE MEANING OF THAT TERM AS USED IN THE ACT OF JUNE 26, 1906, AND, HENCE TO BE CONTRACTED FOR BY THE POSTMASTER GENERAL, THE ACTION IN PURPORTING TO ENTER INTO GENERAL SCHEDULE OF SUPPLY CONTRACTS THEREFOR WAS A NULLITY- -- BEING BEYOND THE JURISDICTION OF THE TREASURY DEPARTMENT. MOREOVER, IT IS NOT UNDERSTOOD THAT THE TREASURY DEPARTMENT GENERAL SUPPLY COMMITTEE CONTRACTS FOR THESE PRESERVERS OR ENVELOPES REQUIRE THE PURCHASE THEREUNDER OF ANY PARTICULAR QUANTITY.

IF YOU AND THE POSTMASTER GENERAL CANNOT AGREE AS TO THE JURISDICTION IN THE MATTER OF CONTRACTING FOR SUCH ENVELOPES OR PRESERVERS, IT IS SUGGESTED THAT THE QUESTION OF CONFLICTING JURISDICTION BE SUBMITTED TO THE ATTORNEY GENERAL OF THE UNITED STATES FOR AN OPINION WITH RESPECT THERETO--- THIS OFFICE BEING CONCERNED WITH THE USES OF APPROPRIATED MONEYS FOR MAKING PAYMENTS UNDER CONTRACTS AS MADE, RATHER THAN WITH CONFLICTS OF ADMINISTRATIVE JURISDICTION BETWEEN DEPARTMENTS OF THE GOVERNMENT IN THE MATTER OF MAKING CONTRACTS.