A-91233, JANUARY 21, 1938, 17 COMP. GEN. 588

A-91233: Jan 21, 1938

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THERE IS NO OBJECTION TO THE PURCHASE BY THE DEPARTMENT OR ESTABLISHMENT CONCERNED OF SUCH ARMS AND AMMUNITION AS WILL MEET THE NEEDS OF THE GOVERNMENT IN A PARTICULAR INSTANCE WHERE IT IS SATISFACTORILY SHOWN THAT THE SECRETARY OF WAR IS NOT PREPARED TO MEET SUCH NEEDS. AT WHICH TIME INSTRUCTIONS WERE IMMEDIATELY ISSUED TO THE FIELD EMPLOYEES OF THE BUREAU OF FISHERIES THAT EFFECTIVE AT ONCE ALL ARMS AND AMMUNITION FOR OFFICIAL USE MUST BE PROCURED THROUGH PROPER CHANNELS. THE ABOVE REFERRED-TO NOTICE OF EXCEPTION WAS IN CONNECTION WITH AN OPEN MARKET PURCHASE OF TWO BOXES OF 12 GAUGE SHOTGUN SHELLS WHICH WERE PURCHASED LOCALLY BY THE ACTING SUPERINTENDENT OF THE TUPELO (MISSISSIPPI) STATION OF THE BUREAU OF FISHERIES FOR "KILLING KINGFISHERS.

A-91233, JANUARY 21, 1938, 17 COMP. GEN. 588

ARMS AND AMMUNITION - PROCUREMENT OTHER THAN THROUGH WAR DEPARTMENT AS THE ACT OF APRIL 14, 1937, 50 STAT. 63, AMENDING THE ACT OF MARCH 3, 1879, 20 STAT. 412, AUTHORIZES BUT DOES NOT DIRECT THE SECRETARY OF WAR TO FURNISH, UPON REQUEST BY THE HEAD OF A DEPARTMENT, ETC., SUCH ARMS AND AMMUNITION AS MAY BE FOUND NECESSARY FOR THE PROTECTION OF PUBLIC MONEY AND PROPERTY, THERE IS NO OBJECTION TO THE PURCHASE BY THE DEPARTMENT OR ESTABLISHMENT CONCERNED OF SUCH ARMS AND AMMUNITION AS WILL MEET THE NEEDS OF THE GOVERNMENT IN A PARTICULAR INSTANCE WHERE IT IS SATISFACTORILY SHOWN THAT THE SECRETARY OF WAR IS NOT PREPARED TO MEET SUCH NEEDS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF COMMERCE JANUARY 21, 1938:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 15, 1937, AS FOLLOWS:

THE BUREAU OF FISHERIES OF THIS DEPARTMENT REQUIRES, AT VARIOUS TIMES DURING A FISCAL YEAR, SHOTGUN SHELLS AND OCCASIONALLY SMALL CALIBER RIFLE CARTRIDGES TO BE USED IN THE DESTRUCTION OF PREDATORY BIRDS AND/OR ANIMALS.

FOR A NUMBER OF YEARS THE NECESSARY AMMUNITION FOR THIS PURPOSE HAS BEEN PURCHASED IN THE OPEN MARKET. EXAMPLES OF SUCH PURCHASES MAY BE FOUND ON THE FOLLOWING VOUCHERS:

CHART

BU.VO.NO. D/O VO.NO. DATE PAID PAID BY--- SYMBOL NO.

252320 200414 4/23/1924 C. E. MOLSTER -------- 80005

276681 290900 5/15/1926 C. E. MOLSTER -------- 80005

288140 340094 4/12/1927 C. E. MOLSTER -------- 80005

302516 414486 5/15/1928 C. E. MOLSTER -------- 80005

314669 47796 3/18/1929 C. E. MOLSTER -------- 80005

320908 10130 8/12/1929 C. E. MOLSTER -------- 80005

335902 11029 7/28/1930 C. E. MOLSTER -------- 80005

354202 11928 8/10/1931 C. E. MOLSTER -------- 80005

374480 12932 8/16/1932 C. E. MOLSTER -------- 80005

392279 5341 8/4/1933 C. E. MOLSTER -------- 80005

422546 95645 7/19/1935 G. F. ALLEN ---------- 108100

ON AUGUST 20, 1937, THE BUREAU OF FISHERIES RECEIVED NOTICE OF EXCEPTION FROM THE AUDIT DIVISION OF THE GENERAL ACCOUNTING OFFICE REGARDING BUREAU OF FISHERIES VOUCHER NO. 425451; D/O VOUCHER NO. 404901, PAID SEPTEMBER 30, 1935, BY MR. G. F. ALLEN, SYMBOL 108-100, AT WHICH TIME INSTRUCTIONS WERE IMMEDIATELY ISSUED TO THE FIELD EMPLOYEES OF THE BUREAU OF FISHERIES THAT EFFECTIVE AT ONCE ALL ARMS AND AMMUNITION FOR OFFICIAL USE MUST BE PROCURED THROUGH PROPER CHANNELS--- FROM THE WAR DEPARTMENT.

THE ABOVE REFERRED-TO NOTICE OF EXCEPTION WAS IN CONNECTION WITH AN OPEN MARKET PURCHASE OF TWO BOXES OF 12 GAUGE SHOTGUN SHELLS WHICH WERE PURCHASED LOCALLY BY THE ACTING SUPERINTENDENT OF THE TUPELO (MISSISSIPPI) STATION OF THE BUREAU OF FISHERIES FOR "KILLING KINGFISHERS, SNAKES, AND OTHER ENEMIES TO FISH," FROM THE APPROPRIATION "PROPAGATION OF FOOD FISHES," PUBLIC, NO. 22, 74TH CONGRESS, APPROVED MARCH 22, 1935. THE PERTINENT PORTION OF THE EXCEPTION STATED,"* * * IT IS ASSUMED THAT THE PROTECTION IN THIS CASE WAS OF FOOD FISHES IN THE WATERS OF THE UNITED STATES, AND IT HAS BEEN HELD THAT ANY PROPERTY OWNED BY AN INSTRUMENTALITY OF THE GOVERNMENT IS "PROPERTY" WITHIN THE MEANING OF THE ACT OF MARCH 3, 1879, 20 STAT. 412, AUTHORIZING AND DIRECTING THE SECRETARY OF WAR TO ISSUE ARMS AND AMMUNITION TO THE HEAD OF ANY DEPARTMENT FOR THE PROTECTION OF PUBLIC PROPERTY. 15 COMP. GEN. 485. IN THE ABSENCE OF A SHOWING OF AN EMERGENCY THAT WOULD NOT PERMIT THE DELAY NECESSARY TO OBTAIN SUCH AMMUNITION FROM THE WAR DEPARTMENT, AND IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY FOR THE PURCHASE, THE ACT OF MARCH 3, 1879, SUPRA, MUST BE HELD APPLICABLE TO THIS PURCHASE. 4 COMP. GEN. 606.'

DUE TO THE LONG-STANDING PRACTICE OF THE BUREAU OF FISHERIES OF PURCHASING IN THE OPEN MARKET SMALL QUANTITIES OF AMMUNITION FOR THE DESTRUCTION OF PREDATORY BIRDS AND ANIMALS, THE FACT THAT IMMEDIATELY UPON RECEIPT OF THE ABOVE REFERRED-TO NOTICE OF EXCEPTION THE BUREAU OF FISHERIES TOOK THE NECESSARY STEPS TO INSURE AGAINST THE CONTINUATION OF OPEN MARKET PURCHASES OF AMMUNITION, AND THE FACT THAT PRIOR PURCHASES HAVE NOT BEEN OBJECTED TO BY YOUR OFFICE, IT IS REQUESTED THAT ALL SUCH PURCHASES, PRIOR TO AUGUST 20, 1937, THE DATE THE ABOVE REFERRED-TO EXCEPTION WAS RECEIVED BY THE BUREAU OF FISHERIES, BE ALLOWED BY YOUR OFFICE.

IN VIEW OF THE ABOVE SUSPENSION, THIS OFFICE PLACED AN ORDER WITH THE WAR DEPARTMENT, CHIEF OF ORDNANCE, FOR ONE CASE OF 12 GAUGE SHOTGUN SHELLS NO. 6 SHOT, LONG RANGE LOAD, AND ONE CASE 20 GAUGE SHELLS NO. 6 SHOT, LONG RANGE LOAD. ON RECEIPT OF THIS ORDER, THE WAR DEPARTMENT ADVISED THIS OFFICE IN LETTER DATED OCTOBER 12, 1937,"* * * THE WAR DEPARTMENT STOCKS ONLY 12 GAUGE SHOTGUN SHELLS LOADED WITH NO. 4, NO. 6, AND NO. 7 1/2 CHILLED SHOT OF STANDARD LOAD. NO LONG RANGE LOAD OF EITHER THE 12 OR 20 GAUGE CAN BE SUPPLIED BY THE WAR DEPARTMENT. THE BILL OF LADING AND PURCHASE ORDER ARE BEING RETAINED IN THIS OFFICE PENDING FURTHER INSTRUCTIONS.'

THE NECESSITY FOR LONG RANGE SHOTGUN SHELLS IS DUE TO THE FACT THAT THE AMMUNITION IS PURCHASED FOR THE PURPOSE OF DESTROYING PREDATORY BIRDS AT FISH HATCHERIES. THESE BIRDS INCLUDE FISH HAWKS,KINGFISHERS, HERONS, CRANES, ETC., WHICH CAUSE THE LOSS OF THOUSANDS OF FISH ANNUALLY. THEY FREQUENT THE PONDS ALMOST DAILY AND SOON BECOME VERY WARY, STAYING OUT OF ORDINARY GUN-SHOT RANGE. THEY PAY NO ATTENTION TO THE EMPLOYEES WHO ARE WORKING AT THE STATION AS LONG AS THE LATTER DO NOT APPROACH TOO CLOSELY. HOWEVER, BY THE USE OF LONG RANGE AMMUNITION IT IS USUALLY POSSIBLE TO KILL THESE PREDATORS WITHOUT THE NECESSITY OF ASSIGNING A MAN TO STALK THEM. IT IS MUCH CHEAPER TO PURCHASE THE LONG RANGE AMMUNITION THAN TO TAKE A MAN FROM HIS REGULAR DUTIES AND ASSIGN HIM TO THE JOB OF HUNTING DOWN THESE BIRDS.

THE PROVISIONS OF THE ACT OF MARCH 3, 1879, 20 STAT. 412, REFERRED TO IN THE GENERAL ACCOUNTING OFFICE EXCEPTION WAS AMENDED APRIL 14, 1937 (PUB. 30), TO READ AS FOLLOWS:

"THAT UPON THE REQUEST OF THE HEAD OF ANY DEPARTMENT OR INDEPENDENT AGENCY OF THE GOVERNMENT, THE SECRETARY OF WAR BE, AND HE IS HEREBY AUTHORIZED TO ISSUE ARMS, SUITABLE ACCOUTERMENTS FOR USE THEREWITH, AND AMMUNITION WHENEVER THEY MAY BE REQUIRED FOR THE PROTECTION OF THE PUBLIC MONEY AND PROPERTY, AND THEY MAY BE DELIVERED TO ANY OFFICER OF THE DEPARTMENT OR INDEPENDENT AGENCY, TO BE ACCOUNTED FOR TO THE SECRETARY OF WAR, AND TO BE RETURNED WHEN THE NECESSITY FOR THEIR USE HAS EXPIRED.'

IN VIEW OF THIS AMENDMENT WHICH AUTHORIZES BUT DOES NOT DIRECT THE SECRETARY OF WAR TO ISSUE ARMS AND AMMUNITION UPON THE REQUEST OF THE HEAD OF ANY DEPARTMENT, YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER OR NOT THIS DEPARTMENT IS CORRECT IN ITS OPINION THAT SINCE THE WAR DEPARTMENT COULD NOT FURNISH SUITABLE AMMUNITION, THE LANGUAGE OF THE ACT WOULD NOT PROHIBIT THE BUREAU OF FISHERIES FROM PURCHASING THE NECESSARY AMMUNITION IN THE OPEN MARKET.

AN EXPLANATION AS TO THE NECESSITY FOR THE PURCHASE OF THE AMMUNITION HAVING BEEN RECEIVED WITH THE REPLY TO EXCEPTION DATED SEPTEMBER 25, 1937, VOUCHER 404901, ACCOUNTS OF G. F. ALLEN, CHIEF DISBURSING OFFICER, WAS PASSED FOR CREDIT AND THE DISBURSING OFFICER WAS SO NOTIFIED UNDER DATE OF OCTOBER 8, 1937.

THE PRACTICE OF THE BUREAU OF FISHERIES OF PURCHASING IN THE OPEN MARKET, SMALL QUANTITIES OF AMMUNITION FOR THE DESTRUCTION OF PREDATORY BIRDS AND ANIMALS APPEARS TO HAVE BEEN PERMITTED TO CONTINUE FOR MANY YEARS WITHOUT BEING QUESTIONED BY THIS OFFICE. WHILE THIS FACT WOULD NOT IN ITSELF PRECLUDE THE DISALLOWANCE OF CREDIT FOR PAYMENTS MADE CONTRARY TO LAW, BUT, IN VIEW OF THE CIRCUMSTANCES HERE APPEARING SUCH PAYMENTS MADE PRIOR TO AUGUST 20, 1937, WILL NOT BE FURTHER QUESTIONED IF OTHERWISE CORRECT.

THE ACT OF MARCH 3, 1879, 20 STAT. 412, AS AMENDED BY THE ACT OF APRIL 14, 1937, PUBLIC, NO. 30, 50 STAT. 63, IS NO LONGER MANDATORY IN THAT IT NOW AUTHORIZES BUT DOES NOT DIRECT THE SECRETARY OF WAR TO FURNISH SUCH ARMS AND AMMUNITION AS MAY BE FOUND NECESSARY FOR THE PROTECTION OF PUBLIC MONEY AND PROPERTY. THEREFORE, WHEN IT IS SATISFACTORILY SHOWN THAT THE ARMS OR AMMUNITION WHICH THE SECRETARY OF WAR IS PREPARED TO FURNISH WILL NOT MEET A PARTICULAR NEED OF THE GOVERNMENT, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO THE PURCHASE BY THE DEPARTMENT OR ESTABLISHMENT CONCERNED OF SUCH ARMS AND AMMUNITION AS WILL MEET THE NEED IN THE PARTICULAR INSTANCE, IF FUNDS OTHERWISE ARE AVAILABLE THEREFOR.