A-91282, FEBRUARY 8, 1938, 17 COMP. GEN. 638

A-91282: Feb 8, 1938

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NOTWITHSTANDING THE ADMINISTRATIVE ALLEGATION OF UNAWARENESS THAT THE MATERIALS WERE AVAILABLE THROUGH THE FEDERAL PRISON INDUSTRIES. THAT THE DISTANCE INVOLVED WAS TOO GREAT TO JUSTIFY SUCH PURCHASE. SHOWING THAT THE SUPPLIES COULD NOT HAVE BEEN PROCURED FROM THE SAID FEDERAL PRISON INDUSTRIES. WAS REQUESTED IN LETTER OF OCTOBER 19. THERE WAS RECEIVED IN REPLY A CARBON COPY OF A LETTER DATED OCTOBER 28. EXPLANATION OF THE PROCEDURE FOLLOWED IT IS STATED. THAT THERETOFORE TENTS WERE OBTAINED THROUGH THE SAN FRANCISCO OFFICE. IT IS FURTHER STATED THAT TENTS AND TENT FLIES LISTED IN THE FEDERAL PRISON INDUSTRIES SCHEDULE OF PRODUCTS SEPTEMBER 1937. THAT THE COMMERCIAL PRODUCTS ARE LESS COSTLY THAN THE FEDERAL PRISON INDUSTRIES.

A-91282, FEBRUARY 8, 1938, 17 COMP. GEN. 638

FEDERAL PRISON-MADE GOODS - PURCHASES OF SIMILAR ITEMS COMMERCIALLY CONTRACTS WITH PRIVATE BUSINESS FIRMS FOR ARTICLES OR MATERIALS REQUIRED TO BE PURCHASED FROM THE FEDERAL PRISON INDUSTRIES, INC., PURSUANT TO THE ACTS OF MAY 27, 1930, 46 STAT. 391, AND JUNE 23, 1934, 48 STAT. 1211, INVOLVING REGULAR, AS DISTINGUISHED FROM EMERGENCY RELIEF, APPROPRIATIONS, MAY NOT BE RECOGNIZED AS CREATING ANY OBLIGATION ON THE GOVERNMENT, NOTWITHSTANDING THE ADMINISTRATIVE ALLEGATION OF UNAWARENESS THAT THE MATERIALS WERE AVAILABLE THROUGH THE FEDERAL PRISON INDUSTRIES, INC.; THAT THE DISTANCE INVOLVED WAS TOO GREAT TO JUSTIFY SUCH PURCHASE; ETC.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, FEBRUARY 8, 1938:

THERE HAS COME TO MY ATTENTION CONTRACT NO. I22P-195, DATED SEPTEMBER 8, 1937, WITH THE COLORADO TENT AND AWNING CO., DENVER, COLO., COVERING THE PURCHASE OF TENTS AND TENT FLIES IN THE SUM OF $327.90 FOR USE IN GRAND TETON NATIONAL PARK, MOOSE, WYO.

THERE NOT HAVING BEEN FILED WITH THE SAID CONTRACT A CLEARANCE FROM FEDERAL PRISON INDUSTRIES, INC., SHOWING THAT THE SUPPLIES COULD NOT HAVE BEEN PROCURED FROM THE SAID FEDERAL PRISON INDUSTRIES, INC., THE DIRECTOR, NATIONAL PARK SERVICE, WAS REQUESTED IN LETTER OF OCTOBER 19, 1937, TO FURNISH INFORMATION AS TO THE REASON FOR THE PURCHASE FROM COMMERCIAL SOURCES. THERE WAS RECEIVED IN REPLY A CARBON COPY OF A LETTER DATED OCTOBER 28, 1937, FROM THE ASSISTANT DIRECTOR, NATIONAL PARK SERVICE, BY THE CHIEF CONTRACT EXAMINER, TO THE SUPERINTENDENT, GRAND TETON NATIONAL PARK, REQUESTING THAT SUCH INFORMATION BE FURNISHED AND A LETTER DATED NOVEMBER 24, 1937, FROM THE ASSISTANT DIRECTOR, NATIONAL PARK SERVICE, BY THE CHIEF CONTRACT EXAMINER, FORWARDING THE EXPLANATION DATED NOVEMBER 5, 1937, OF THE ACTING SUPERINTENDENT, GRAND TETON NATIONAL PARK. EXPLANATION OF THE PROCEDURE FOLLOWED IT IS STATED, IN SUBSTANCE, THAT THERETOFORE TENTS WERE OBTAINED THROUGH THE SAN FRANCISCO OFFICE, BUT SAID OFFICE HAD ADVISED IT NO LONGER HAD A TENT CONTRACT AND, BEING UNAWARE THAT TENTS COULD BE PURCHASED THROUGH THE FEDERAL PRISON INDUSTRIES, INC., THEY OBTAINED THESE TENTS COMMERCIALLY. IT IS FURTHER STATED THAT TENTS AND TENT FLIES LISTED IN THE FEDERAL PRISON INDUSTRIES SCHEDULE OF PRODUCTS SEPTEMBER 1937, DID NOT MEET THEIR SPECIFICATIONS, BEING 10.66 OUNCES IN WEIGHT INSTEAD OF 12 OUNCES; THAT THE COMMERCIAL PRODUCTS ARE LESS COSTLY THAN THE FEDERAL PRISON INDUSTRIES, INC., PRODUCTS; THAT THE LOCATION OF THE PARK WOULD NOT WARRANT PURCHASING GOODS FROM AS GREAT A DISTANCE AS ATLANTA, GA.

IT APPEARS FROM THE SCHEDULE OF PRODUCTS, FEDERAL PRISON INDUSTRIES, INC., REVISED SEPTEMBER 1937, THAT REGULAR STOCK TENTS ARE MANUFACTURED FROM 10.66-OUNCE CANVAS AND TENT FLIES FROM 10-OUNCE CANVAS UNLESS OTHERWISE SPECIFIED (PP. 10 AND 14). IT APPEARS, ALSO, THAT THE FEDERAL PRISON INDUSTRIES, INC., IS IN POSITION TO FURNISH TENTS AND TENT FLIES OF SUCH SIZE AND CONSTRUCTION AS WILL MEET THE PURCHASER'S SPECIFICATIONS (PP. 10 AND 15). THE SCHEDULE DISCLOSES, ALSO, THAT THE FEDERAL PRISON INDUSTRIES, INC., CAN FURNISH 12-OUNCE WATERPROOFED DUCK, COLOR KHAKI, FOR TENT CONSTRUCTION (PP. 28 AND 29). SEE, ALSO, THE SCHEDULE OF PRODUCTS, FEDERAL PRISON INDUSTRIES, INC., DATED NOVEMBER 1936 (PP. 3, 5, AND 6).

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 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. 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. SEE 14 COMP. GEN. 270.

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