A-90178, MARCH 18, 1938, 17 COMP. GEN. 748

A-90178: Mar 18, 1938

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PAMPHLETS AND POSTERS - ADVANCE PAYMENTS AND APPROPRIATION REIMBURSEMENTS ON BASIS OF INTERAGENCY SERVICES SAFETY PAMPHLETS AND POSTERS ARE NOT PERIODICALS WITHIN THE MEANING OF SECTION 5. PAYMENT THEREFOR IN ADVANCE OF THEIR DELIVERY IS PROHIBITED BY SECTION 3648. THE INSTITUTION WHICH IS TO BE REIMBURSED NOT BEING "IN A POSITION TO SUPPLY OR EQUIPPED TO RENDER" THE SERVICES OR SUPPLIES INVOLVED AS REQUIRED BY SAID ACT. WHEN FIRST SUBMITTED CERTIFICATION WAS REFUSED FOR THE REASON THAT THE FURNISHING OF SAFETY PAMPHLETS AND POSTERS CONSTITUTED A SUBSTANTIAL PART OF THE SERVICE UNDER THE CONTRACT AND ANY PAYMENT IN ADVANCE OF THE FURNISHING OF SUCH BULLETINS WOULD BE IN CONTRAVENTION OF SECTION 3648.

A-90178, MARCH 18, 1938, 17 COMP. GEN. 748

SAFETY SERVICE, PAMPHLETS AND POSTERS - ADVANCE PAYMENTS AND APPROPRIATION REIMBURSEMENTS ON BASIS OF INTERAGENCY SERVICES SAFETY PAMPHLETS AND POSTERS ARE NOT PERIODICALS WITHIN THE MEANING OF SECTION 5, ACT MARCH 4, 1915, 38 STAT. 1049, AUTHORIZING PAYMENT IN ADVANCE FOR SUBSCRIPTIONS TO PERIODICALS, AND PAYMENT THEREFOR IN ADVANCE OF THEIR DELIVERY IS PROHIBITED BY SECTION 3648, REVISED STATUTES. THE TOTAL COST OF SERVICES AND SUPPLIES PROCURED FROM PRIVATE SOURCES AND PROPERLY CHARGEABLE TO APPROPRIATIONS FOR TWO OR MORE PENAL INSTITUTIONS, MAY NOT BE CHARGED TO ONE OF THE APPROPRIATIONS WITH SUBSEQUENT REIMBURSEMENT FROM THE OTHERS UNDER SECTION 601 OF THE ACT OF JUNE 30, 1932, 47 STAT. 417, THE INSTITUTION WHICH IS TO BE REIMBURSED NOT BEING "IN A POSITION TO SUPPLY OR EQUIPPED TO RENDER" THE SERVICES OR SUPPLIES INVOLVED AS REQUIRED BY SAID ACT, AND THE PRACTICE BEING VIOLATIVE OF THE PROVISIONS OF SECTION 3678, REVISED STATUTES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ATTORNEY GENERAL, MARCH 18, 1938:

THERE HAS BEEN RESUBMITTED FOR AUDIT IN ADVANCE OF PAYMENT VOUCHER NO. 850 IN FAVOR OF THE NATIONAL SAFETY COUNCIL, INCORPORATED, FOR $1,115 AS FINAL PAYMENT UNDER CONTRACT JLC-5023. WHEN FIRST SUBMITTED CERTIFICATION WAS REFUSED FOR THE REASON THAT THE FURNISHING OF SAFETY PAMPHLETS AND POSTERS CONSTITUTED A SUBSTANTIAL PART OF THE SERVICE UNDER THE CONTRACT AND ANY PAYMENT IN ADVANCE OF THE FURNISHING OF SUCH BULLETINS WOULD BE IN CONTRAVENTION OF SECTION 3648, REVISED STATUTES, AND FOR THE FURTHER REASON THAT THE CHARGING OF THE WHOLE PAYMENT TO ONE APPROPRIATION, WITH KNOWLEDGE THAT THE APPROPRIATION WAS AVAILABLE FOR ONLY A PORTION THEREOF, WOULD BE IN CONTRAVENTION OF SECTION 3678, REVISED STATUTES. THE VOUCHER WHEN RESUBMITTED WAS ACCOMPANIED BY THE FOLLOWING LETTER DATED JANUARY 14, 1938, FROM THE ASSISTANT DIRECTOR, BUREAU OF PRISONS:

THERE IS RETURNED HEREWITH U.S. PENITENTIARY, ATLANTA, GEORGIA, VOUCHER NO. 850 IN THE SUM OF $1,115 IN FAVOR OF THE NATIONAL SAFETY COUNCIL, INC., COVERING SERVICE RENDERED UNDER CONTRACT JLC-5023. THIS VOUCHER WAS SUBMITTED FOR PREAUDIT ON OUR SCHEDULE NO. 343 AND WAS RETURNED WITH YOUR PREAUDIT DIFFERENCE STATEMENT DATED DECEMBER 3, 1937, WHICH IS ATTACHED TO THE VOUCHER. EXCEPTION IS TAKEN TO THE PAYMENT OF THE VOUCHER ON THE GROUNDS THAT (1) PAYMENT MAY NOT BE MADE IN ADVANCE, AND (2) THAT CHARGING THE WHOLE PAYMENT TO ONE APPROPRIATION IS IN CONTRAVENTION OF SECTION 3648, REVISED STATUTES, AND 14 COMP. GEN. 103.

WE ARE SOMEWHAT SURPRISED AT THE EXCEPTIONS TAKEN TO THE PAYMENT OF THIS VOUCHER IN VIEW OF THE FACT THAT THIS PROCEDURE HAS BEEN FOLLOWED, WITH THE APPROVAL OF YOUR OFFICE, IN A NUMBER OF INSTANCES. PARTICULAR REFERENCE IS MADE TO PAYMENT UNDER AN IDENTICAL CONTRACT, JLC-3308, DURING THE FISCAL YEAR 1936. COPY OF A LETTER DATED SEPTEMBER 4, 1935, SUBMITTED TO YOUR DIVISION IN CONNECTION WITH THE PREAUDIT OF A VOUCHER UNDER THAT CONTRACT, IS ENCLOSED FOR YOUR INFORMATION. THIS VOUCHER WAS CERTIFIED IN ACCORDANCE WITH THE RECOMMENDATION MADE IN OUR LETTER.

PARTICULAR ATTENTION IS INVITED TO ARTICLE 3 OF CONTRACT JLC-5023, IN WHICH IT IS PROVIDED THAT FINAL PAYMENT OF $1,115 SHALL BE MADE WHEN DETAILED REPORT IS SUBMITTED AND ACCEPTED. 38 STAT. 1049 PROVIDES THAT PAYMENT MAY BE MADE IN ADVANCE FOR SUBSCRIPTIONS. THE SERVICE, WHICH HAS NOT YET BEEN COMPLETELY FURNISHED BY THE NATIONAL SAFETY COUNCIL, IS NOTHING MORE THAN A SUBSCRIPTION FOR THE FURNISHING OF SAFETY PAMPHLETS DURING CONTRACT PERIOD. THIS IS CERTAINLY WITHIN THE MEANING OF 38 STAT. 1049.

AS TO THE SECOND OBJECTION, ATTENTION IS INVITED TO SECTION 601 OF ACT OF CONGRESS APPROVED JUNE 30, 1932, PUBLIC, 212, 72D CONGRESS, WHICH PROVIDES FOR THE FURNISHING OF SERVICE OR SUPPLIES BY ONE DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT TO ANOTHER, FOR WHICH PAYMENT MAY BE MADE IN ADVANCE, OR SUBSEQUENT TO THE RENDERING OF THE SERVICE. THIS ACT, IT IS BELIEVED, PROVIDES AMPLE AUTHORITY FOR THE PAYMENT OF ALL SERVICE RENDERED UNDER CONTRACT JLC-5023 TO THE VARIOUS INSTITUTIONS FROM THE APPROPRIATION "U.S. PENITENTIARY, ATLANTA, GEORGIA, MAINTENANCE, 1937" WITH THE UNDERSTANDING THAT REIMBURSEMENT WILL BE MADE BY THE VARIOUS INSTITUTIONS FOR THEIR PROPORTIONATE SHARE OF THE SERVICE. THE SERVICE IS OF SUCH A NATURE THAT IT IS PROPERLY CHARGEABLE TO THE ATLANTA APPROPRIATION, AND IT APPEARS THERE WOULD BE NO FURTHER OBJECTION TO PAYMENT FOR THIS SERVICE FROM THE ONE APPROPRIATION, WITH REIMBURSEMENT FROM OTHER INSTITUTIONAL APPROPRIATIONS, THAN THERE WOULD BE FOR THE PURCHASE OF SUPPLIES BY ONE INSTITUTION WHICH MIGHT BE FURNISHED TO ANOTHER INSTITUTION AND REIMBURSEMENT OBTAINED.

IT IS REQUESTED THAT THE VOUCHER BE RECONSIDERED AND CERTIFICATION IS URGENTLY RECOMMENDED TO AVOID A GREAT AMOUNT OF DETAIL WORK IN MAKING SMALL PAYMENTS TO THE CONTRACTOR.

THE PERTINENT PARTS OF THE CONTRACT ARE AS FOLLOWS:

ARTICLE I. THE COUNCIL FOR THE CONSIDERATION HEREIN MENTIONED TO RENDER TO THE GOVERNMENT ALL SERVICES REQUIRED IN MAKING A SAFETY INSPECTION OF THE UNITED STATES INDUSTRIAL REFORMATORY, CHILLICOTHE, OHIO, UNITED STATES NORTHEASTERN PENITENTIARY, LEWISBURG, PENNSYLVANIA, UNITED STATES PENITENTIARY, ATLANTA, GEORGIA, UNITED STATES PENITENTIARY, LEAVENWORTH, KANSAS, THE UNITED STATES PENITENTIARY ANNEX, FORT LEAVENWORTH, KANSAS, UNITED STATES SOUTHWESTERN REFORMATORY, EL RENO, OKLAHOMA, THE UNITED STATES REFORMATORY CAMP, PETERSBURG, VIRGINIA, THE UNITED STATES DETENTION FARM, MILAN, MICHIGAN, THE FEDERAL INDUSTRIAL INSTITUTION FOR WOMEN, ALDERSON, WEST VIRGINIA, THE UNITED STATES DETENTION FARM, LA TUNA, TEXAS, THE UNITED STATES PENITENTIARY, ALCATRAS ISLAND, CALIFORNIA, AND THE UNITED STATES PENITENTIARY, MCNEIL ISLAND, WASHINGTON, WHICH SHALL INCLUDE A THOROUGH AND COMPLETE EXAMINATION OF ALL MACHINERY AND EQUIPMENT, BUILDINGS, ELEVATORS, ELECTRICAL EQUIPMENT, POWER PLANT FACILITIES AND EQUIPMENT, TRANSPORTATION EQUIPMENT, AND ANY AND ALL OTHER FEATURES OF THE SAID INSTITUTIONS, FOR THE PURPOSE OF DISCOVERING AND REPORTING TO THE DIRECTOR OF THE UNITED STATES BUREAU OF PRISONS AND THE WARDEN OR SUPERINTENDENT OF EACH INSTITUTION ALL ACCIDENT HAZARDS TO LIFE AND LIMB OF EMPLOYEES AND INMATES; TO MAKE ESTIMATES, WORKING DRAWINGS, PLANS AND SPECIFICATIONS FOR ANY SAFETY DEVICES OR EQUIPMENT REQUIRED FOR THE ELIMINATION OF SUCH HAZARDS WHEN REQUIRED BY THE GOVERNMENT; TO DRAFT, ASSIST IN INSTALLING, AND SUPERVISE A PROGRAM FOR THE ELIMINATION OF ACCIDENT HAZARDS; TO SUPPLY EACH INSTITUTION WITH APPROPRIATE SAFETY EDUCATIONAL POSTERS WEEKLY FOR ONE YEAR FOR A TOTAL OF FORTY-TWO (42) SAFETY BULLETIN BOARDS, TOGETHER WITH INFORMATIONAL SAFETY PAMPHLETS.

ARTICLE II. THE COUNCIL ALSO AGREES TO FURNISH THE GOVERNMENT WITH A PRELIMINARY REPORT UPON THE COMPLETION OF ITS INITIAL SURVEY OF THE INSTITUTIONS, POINTING OUT THE HAZARDS TO LIFE AND LIMB WHICH ARE IN NEED OF IMMEDIATE REMEDY AND IT ALSO AGREES TO FURNISH A FINAL REPORT SETTING FORTH COMPLETELY ANY AND ALL SUGGESTIONS OR CHANGES OF ALL MEASURES WHICH IT CONSIDERS NECESSARY THAT THE GOVERNMENT TAKE TO ELIMINATE ACTUAL HAZARDS.

ARTICLE III. FOR AND IN CONSIDERATION OF THE SERVICE THUS RENDERED THE COUNCIL SHALL RECEIVE AS COMPENSATION A TOTAL AMOUNT OF $2,230.00 PAYABLE $1,115.00 WHEN PRELIMINARY SURVEY IS COMPLETED AND $1,115.00 WHEN THE DETAILED REPORT IS SUBMITTED AND ACCEPTED.

SECTION 3648, REVISED STATUTES, PROVIDES:

NO ADVANCE OF PUBLIC MONEY SHALL BE MADE IN ANY CASE WHATEVER. AND IN ALL CASES OF CONTRACTS FOR THE PERFORMANCE OF ANY SERVICE, OR THE DELIVERY OF ARTICLES OF ANY DESCRIPTION, FOR THE USE OF THE UNITED STATES, PAYMENT SHALL NOT EXCEED THE VALUE OF THE SERVICE RENDERED, OR OF THE ARTICLES DELIVERED PREVIOUSLY TO SUCH PAYMENT. * * *

SECTION 5 OF THE ACT OF MARCH 4, 1915, 38 STAT. 1049, MAKES AN EXCEPTION TO THE PROVISIONS OF SECTION 3648 IN THE FOLLOWING LANGUAGE:

THAT HEREAFTER SUBSCRIPTIONS TO PERIODICALS, WHICH HAVE BEEN CERTIFIED IN WRITING BY THE RESPECTIVE HEADS OF THE EXECUTIVE DEPARTMENTS OR OTHER GOVERNMENT ESTABLISHMENTS TO BE REQUIRED FOR OFFICIAL USE, MAY BE PAID IN ADVANCE FROM APPROPRIATIONS AVAILABLE THEREFOR.

IN ORDER TO AUTHORIZE ADVANCE PAYMENTS UNDER THE ACT OF 1915, SUPRA, THE SUBJECT MATTER MUST CONSIST OF A SUBSCRIPTION TO A PERIODICAL. SUBSCRIPTION TO OTHER THAN A PERIODICAL IS NOT WITHIN THE TERMS OF THE STATUTE. IN THE CASE OF HOUGHTON V. PAYNE, 194 U.S. 88, THE TERM PERIODICAL WAS DEFINED AS FOLLOWS:

A PERIODICAL, AS ORDINARILY UNDERSTOOD, IS A PUBLICATION APPEARING AT STATED INTERVALS, EACH NUMBER OF WHICH CONTAINS A VARIETY OF ORIGINAL ARTICLES BY DIFFERENT AUTHORS, DEVOTED EITHER TO GENERAL LITERATURE OR SOME SPECIAL BRANCH OF LEARNING OR TO A SPECIAL CLASS OF SUBJECTS. ORDINARILY EACH NUMBER IS INCOMPLETE IN ITSELF, AND INDICATES A RELATION WITH PRIOR OR SUBSEQUENT NUMBERS OF THE SAME SERIES. IT IMPLIES A CONTINUITY OF LITERARY CHARACTER, A CONNECTION BETWEEN THE DIFFERENT NUMBERS OF THE SERIES IN THE NATURE OF THE ARTICLES APPEARING IN THEM, WHETHER THEY BE SUCCESSIVE CHAPTERS OF THE SAME STORY OR NOVEL, OR ESSAYS UPON SUBJECTS PERTAINING TO GENERAL LITERATURE. * * *

SAFETY PAMPHLETS AND POSTERS DO NOT APPEAR TO COME WITHIN THIS DEFINITION OF PERIODICALS.

WITH RESPECT TO CONTRACT JLC-3308 FOR THE FURNISHING OF SIMILAR SERVICES DURING THE FISCAL YEAR 1936, VOUCHER 1010802 WAS CERTIFIED IN ADVANCE OF PAYMENT BY THE AUDIT DIVISION OF THIS OFFICE AFTER RECEIPT OF THE LETTER OF SEPTEMBER 4, 1935, ADDRESSED TO THE CHIEF OF THE AUDIT DIVISION. SUCH ACTION BY A DIVISION OF THIS OFFICE, HOWEVER, CONSTITUTES NO PRECEDENT AND CANNOT BIND THE OFFICE IN FUTURE CASES.

IN VIEW OF THE FOREGOING IT MUST BE HELD THAT PAYMENT ON THE VOUCHER NO. 850 IS NOT AUTHORIZED AT THIS TIME NOR UNTIL THE PAMPHLETS AND POSTERS HAVE ALL BEEN DELIVERED.

THE CHARGING OF THE WHOLE CONTRACT CONSIDERATION TO THE APPROPRIATION FOR THE UNITED STATES PENITENTIARY AT ATLANTA, GA., IS NOT AUTHORIZED UNDER SECTION 601 OF THE ACT OF JUNE 30, 1932, 47 STAT. 417, AS THE SERVICE IS NOT ONE THAT THE PENITENTIARY AT ATLANTA, GA., IS "IN A POSITION TO SUPPLY OR EQUIPPED TO RENDER" AS REQUIRED BY THAT STATUTE. IN 14 COMP. GEN. 103, IT WAS HELD:

WHILE THE GENERAL ACCOUNTING OFFICE MAY EFFECT ADJUSTMENTS BETWEEN APPROPRIATIONS WHEN, UNDER A MISTAKE OF LAW OR FACT, A VOUCHER HAS BEEN CHARGED TO THE WRONG APPROPRIATION AND IT CLEARLY APPEARS THAT ANOTHER APPROPRIATION IS AVAILABLE, AN ADMINISTRATIVE OFFICER MAY NOT, FOR THE SAKE OF AN ADMINISTRATIVE EXPEDIENCY, DELIBERATELY CHARGE THE WRONG APPROPRIATION WITH THE EXPECTATION OF OBTAINING SUBSEQUENTLY AN ADJUSTMENT THEREOF BY TRANSFER OF APPLICABLE APPROPRIATIONS--- SUCH PRACTICE RESULTING IN THE RENDITION OF FALSE ACCOUNTS AND BEING VIOLATIVE OF THE PROVISION OF SECTION 3678, REVISED STATUTES.

WHEN AN OBLIGATION IS PROPERLY CHARGEABLE TO MORE THAN ONE APPROPRIATION IT IS PROPER TO SHOW ON THE VOUCHER IN THE SPACE PROVIDED THEREFOR, ALL OF THE APPLICABLE APPROPRIATIONS AND TO DRAW ONE CHECK TO THE PAYEE IN PAYMENT OF THE OBLIGATION REPRESENTED BY THE VOUCHER.

IT IS NOT APPARENT WHY THE PROCEDURE INDICATED IN THE ABOVE DECISION CANNOT BE FOLLOWED IF AND WHEN FINAL PAYMENT BECOMES DUE UNDER THE PRESENT CONTRACT. THE VOUCHER IS RETURNED, PAYMENT THEREON TO AWAIT THE FURNISHING OF ALL THE SERVICE AND SUPPLIES TO WHICH THE UNITED STATES IS ENTITLED UNDER THE CONTRACT.