A-94520, JUNE 13, 1938, 17 COMP. GEN. 1066

A-94520: Jun 13, 1938

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IS AS FOLLOWS: THE SUPPLY DIVISION OF THE NAVY DEPARTMENT FREQUENTLY MAKES PURCHASES IN THE OPEN MARKET OF SUPPLIES AND PROCURES SERVICES WHEN THE AMOUNT INVOLVED IS VERY SMALL. SUCH LIMITATION OF AMOUNT IS NOT DESIGNED TO EVADE PURCHASE UNDER FORMAL CONTRACT OR BOND. IT IS CONSIDERED THAT THE STATUTE MIGHT WELL BE CONSTRUED AS APPLYING TO ALL ACTIVITIES OF THE NAVY. YOUR DECISION IS REQUESTED AS TO WHETHER VOUCHERS WILL BE APPROVED BY THE GENERAL ACCOUNTING OFFICE FOR OPEN MARKET PURCHASES IN ACCORDANCE WITH THE PROVISIONS OF THE ABOVE-CITED ACT IN AMOUNTS NOT EXCEEDING THE LIMITS THEREIN PRESCRIBED. A SIMILAR STATUTE IS IN FORCE WITH RESPECT TO PURCHASES FOR THE ARMY. AS FOLLOWS: * * * THE WAR DEPARTMENT IS AN EXECUTIVE DEPARTMENT.

A-94520, JUNE 13, 1938, 17 COMP. GEN. 1066

OPEN-MARKET PURCHASES - APPLICABILITY OF NAVAL SERVICE STATUTORY AUTHORIZATION TO EXECUTIVE DEPARTMENT OF THE NAVY THE ACT OF MARCH 2, 1907, 34 STAT. 1193, AUTHORIZING "PURCHASE OF SUPPLIES AND THE PROCUREMENT OF SERVICES FOR ALL BRANCHES OF THE NAVAL SERVICE * * * IN OPEN MARKET IN THE MANNER COMMON AMONG BUSINESS MEN, WITHOUT FORMAL CONTRACT OR BOND," UNDER THE CIRCUMSTANCES THERE SPECIFIED, MAY NOT BE APPLIED TO THE EXECUTIVE DEPARTMENT OF THE NAVY-- THE NAVY DEPARTMENT PROPER--- AS DISTINGUISHED FROM THE NAVAL SERVICES OF THE GOVERNMENT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JUNE 13, 1938:

YOUR LETTER OF APRIL 23, 1938, IS AS FOLLOWS:

THE SUPPLY DIVISION OF THE NAVY DEPARTMENT FREQUENTLY MAKES PURCHASES IN THE OPEN MARKET OF SUPPLIES AND PROCURES SERVICES WHEN THE AMOUNT INVOLVED IS VERY SMALL. IT HAS BEEN THE PRACTICE, HOWEVER, IN ALL SUCH CASES EXCEPT WHERE AN EMERGENCY EXISTS TO OBTAIN PROPOSALS AND MAKE AWARD TO THE LOWEST BIDDER. THIS PROCEDURE INVOLVES PAPER WORK AND CLERICAL LABOR NOT JUSTIFIED BY THE SMALL EXPENDITURES REQUIRED.

THE ACT OF MARCH 2, 1907 (34 STAT. 1193; 34 U.S.C. SEC. 571), CONTAINS THE FOLLOWING PROVISION:

"THAT HEREAFTER THE PURCHASE OF SUPPLIES AND THE PROCUREMENT OF SERVICES FOR ALL BRANCHES OF THE NAVAL SERVICE MAY BE MADE IN OPEN MARKET IN THE MANNER COMMON AMONG BUSINESS MEN, WITHOUT FORMAL CONTRACT OR BOND, WHEN THE AGGREGATE OF THE AMOUNT REQUIRED DOES NOT EXCEED FIVE HUNDRED DOLLARS, AND WHEN, IN THE OPINION OF THE PROPER ADMINISTRATIVE OFFICERS, SUCH LIMITATION OF AMOUNT IS NOT DESIGNED TO EVADE PURCHASE UNDER FORMAL CONTRACT OR BOND, AND EQUALLY OR MORE ADVANTAGEOUS TERMS CAN THEREBY BE SECURED.'

WHILE THE ABOVE AUTHORIZATION HAS NOT BEEN REGARDED IN THE PAST AS APPLICABLE TO THE NAVY DEPARTMENT FOR THE REASON THAT THE TERM "NAVAL SERVICE" HAS IN SOME INSTANCES BEEN INTERPRETED AS NOT INCLUDING THE EXECUTIVE DEPARTMENT OF THE NAVY, IT IS CONSIDERED THAT THE STATUTE MIGHT WELL BE CONSTRUED AS APPLYING TO ALL ACTIVITIES OF THE NAVY, INCLUDING THE NAVY DEPARTMENT PROPER, AND ITS OFFICES AND BUREAUS AT THE SEAT OF THE GOVERNMENT, AS WELL AS TO THE PURCHASING OFFICES IN THE FIELD.

AS THE ADOPTION OF THIS CONSTRUCTION OF THE ACT WOULD BE A DEPARTURE FROM THE PREVIOUS PRACTICE, AND IN ORDER TO AVOID ANY QUESTION BY THE ACCOUNTING OFFICERS, YOUR DECISION IS REQUESTED AS TO WHETHER VOUCHERS WILL BE APPROVED BY THE GENERAL ACCOUNTING OFFICE FOR OPEN MARKET PURCHASES IN ACCORDANCE WITH THE PROVISIONS OF THE ABOVE-CITED ACT IN AMOUNTS NOT EXCEEDING THE LIMITS THEREIN PRESCRIBED.

THE STATUTE QUOTED IN YOUR LETTER, SUPRA, HAS APPLICATION TO "ALL BRANCHES OF THE NAVAL VICE.' A SIMILAR STATUTE IS IN FORCE WITH RESPECT TO PURCHASES FOR THE ARMY. ACT OF JUNE 12, 1906, 34 STAT. 258. CONSIDERING THE STATUS OF THE ARMY SERVICE AND THE NAVY SERVICE WITH RESPECT TO THE APPLICATION OF THE PROVISIONS OF THE ACT OF JUNE 17, 1910, 36 STAT. 531, REQUIRING ALL MISCELLANEOUS SUPPLIES FOR THE USE OF "THE EXECUTIVE DEPARTMENTS AND OTHER GOVERNMENT ESTABLISHMENTS IN WASHINGTON" TO BE ADVERTISED AND CONTRACTED FOR BY THE SECRETARY OF THE TREASURY, THE COMPTROLLER OF THE TREASURY, IN 19 COMP. DEC. 834, HELD IN PERTINENT PART, PAGE 837, AS FOLLOWS:

* * * THE WAR DEPARTMENT IS AN EXECUTIVE DEPARTMENT, BUT THE ARMY IS NOT A PART OF THAT EXECUTIVE DEPARTMENT. THE NAVY DEPARTMENT IS AN EXECUTIVE DEPARTMENT, BUT THE NAVY IS NOT A PART OF THAT EXECUTIVE DEPARTMENT.

THERE HAVE LONG BEEN RECOGNIZED THE DISTINCTIONS BETWEEN THE MILITARY AND NAVAL SERVICES OF THE GOVERNMENT AND THEIR RESPECTIVE EXECUTIVE DEPARTMENTS--- THE CONGRESS ITSELF HAVING RECOGNIZED SUCH DISTINCTIONS BY MAKING SEPARATE APPROPRIATIONS FOR SAID SERVICES AND THEIR RESPECTIVE EXECUTIVE DEPARTMENTS. THE NAVY DEPARTMENT APPEARS TO HAVE RECOGNIZED THAT DISTINCTION FOR MORE THAN 30 YEARS WITH RESPECT TO THE APPLICATION OF THE CITED 1907 STATUTE--- A FACT ADMITTED IN THE LETTER, SUPRA.

THE ACT OF MARCH 2, 1907--- AS WELL AS OTHER STATUTES IN PARI MATERIA--- HAS IN MANY INSTANCES BEEN CONSTRUED BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT AS CONSTITUTING AN EXCEPTION TO THE PROVISIONS OF SECTIONS 3709 AND 3744, REVISED STATUES. THE EXCEPTION IN THIS PARTICULAR INSTANCE APPLIES ONLY TO THE "BRANCHES OF THE NAVAL SERVICE.' IT IS A WELL-SETTLED RULE OF STATUTORY CONSTRUCTION THAT WHEN A STATUTE ENUMERATES THE PERSONS OR THINGS TO BE AFFECTED BY ITS PROVISIONS, THERE IS AN IMPLIED EXCLUSION OF OTHERS, THERE THEN BEING A NATURAL INFERENCE THAT ITS APPLICATION IS NOT INTENDED TO BE GENERAL- - SUCH RULE BEING EXPRESSED BY THE LEGAL MAXIM EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS. ALSO, IT IS A WELL-SETTLED RULE OF STATUTORY CONSTRUCTION THAT AN EXPRESS EXCEPTION EXCLUDES OTHERS AND IN NO WAY CHANGES OR AFFECTS THE FORCE OF GENERAL LAW, OTHER THAN AS SPECIFICALLY PROVIDED FOR IN THE EXCEPTION.

HAVING REGARD, THEREFORE, TO THE DISTINCTIONS BETWEEN THE MILITARY AND NAVAL SERVICES OF THE GOVERNMENT AND THEIR RESPECTIVE EXECUTIVE DEPARTMENTS AS ABOVE DISCUSSED, AS WELL AS THE RULES OF STATUTORY CONSTRUCTION APPLICABLE TO THE MATTER, I AM CONSTRAINED TO THE VIEW THAT THE CITED 1907 ACT MAY NOT BE APPLIED TO THE EXECUTIVE DEPARTMENT OF THE NAVY, I.E., THE NAVY DEPARTMENT PROPER, AND ITS OFFICES AND BUREAUS AT THE SEAT OF THE GOVERNMENT, AS DISTINGUISHED FROM THE NAVAL SERVICES.

IT MAY BE WELL TO STATE HERE THAT PURCHASES FOR THE EXECUTIVE DEPARTMENT AND OTHER ESTABLISHMENTS OF THE NAVY IN WASHINGTON, D.C., AND FOR SUCH FIELD SERVICES AS MAY BE EXPRESSLY MENTIONED, ARE REQUIRED TO BE MADE THROUGH--- OR PURSUANT TO AUTHORIZATIONS FROM--- THE PROCUREMENT DIVISION, TREASURY DEPARTMENT. SEE SECTION 1 OF EXECUTIVE ORDER NO. 6166, DATED JUNE 10, 1933, 5 U.S.C. 132; DECISION OF DECEMBER 1, 1930, A-34104, TO YOU; AND DECISION OF APRIL 21, 1937, A 81226, TO THE EMERSON ELECTRIC MANUFACTURING CO., BASED UPON YOUR REPORT DATED APRIL 10, 1937, IN THE MATTER.

ACCORDINGLY, THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE, SO FAR AS CONCERNS PURCHASES FOR THE EXECUTIVE DEPARTMENT OF THE NAVY AND ITS OFFICES AND BUREAUS AT THE SEAT OF THE GOVERNMENT--- THE STATUTE IN QUESTION BEING, AS ABOVE STATED, FOR APPLICATION ONLY TO PURCHASES FOR ALL BRANCHES OF THE NAVAL SERVICE AS DISTINGUISHED FROM PURCHASES FOR THE EXECUTIVE DEPARTMENT OF THE NAVY, ETC. ..END :