A-95838, JULY 23, 1938, 18 COMP. GEN. 80

A-95838: Jul 23, 1938

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FEDERAL PRISON-MADE GOODS - PURCHASES OF SIMILAR ITEMS COMMERCIALLY - GOVERNMENT LIABILITY PAYMENT IS NOT AUTHORIZED FROM REGULAR. FOR A COMMERCIAL PURCHASE OF WIPING CLOTHS IN THE ABSENCE OF A SHOWING THAT THE CLOTHS COULD NOT HAVE BEEN PROCURED FROM THE FEDERAL PRISON INDUSTRIES. FROM WHICH CORPORATION ALL ARTICLES AND MATERIALS SO AVAILABLE ARE REQUIRED BY STATUTE TO BE PURCHASED. 1938: THERE WAS RECEIVED YOUR LETTER OF JUNE 1. A DOUBT IS ENTERTAINED AS TO WHETHER SAME IS AUTHORIZED FOR PAYMENT. STATES THAT IT IS NOT NECESSARY TO OBTAIN CLEARANCE FOR THE PURCHASE OF SECOND HAND WIPING RAGS FOR PURCHASES FROM COMMERCIAL MARKET SOURCES. " IS LISTED IN THE FEDERAL PRISON INDUSTRIES. AN ADVANCE DECISION IS REQUESTED.

A-95838, JULY 23, 1938, 18 COMP. GEN. 80

FEDERAL PRISON-MADE GOODS - PURCHASES OF SIMILAR ITEMS COMMERCIALLY - GOVERNMENT LIABILITY PAYMENT IS NOT AUTHORIZED FROM REGULAR, AS DISTINGUISHED FROM EMERGENCY RELIEF, FUNDS, FOR A COMMERCIAL PURCHASE OF WIPING CLOTHS IN THE ABSENCE OF A SHOWING THAT THE CLOTHS COULD NOT HAVE BEEN PROCURED FROM THE FEDERAL PRISON INDUSTRIES, INC., FROM WHICH CORPORATION ALL ARTICLES AND MATERIALS SO AVAILABLE ARE REQUIRED BY STATUTE TO BE PURCHASED.

ACTING COMPTROLLER GENERAL ELLIOTT TO MAJ. I. V. TODD, UNITED STATES ARMY, JULY 23, 1938:

THERE WAS RECEIVED YOUR LETTER OF JUNE 1, 1938, AS FOLLOWS:

1. THE INCLOSED VOUCHER HAS BEEN SUBMITTED TO THE UNDERSIGNED DISBURSING OFFICER FOR PAYMENT. A DOUBT IS ENTERTAINED AS TO WHETHER SAME IS AUTHORIZED FOR PAYMENT, FOR THE FOLLOWING REASON:

PURCHASE ORDER NO. 16-228 INCLUDES AN ITEM FOR 100 LBS. WIPING RAGS, THE KIND NOT SPECIFIED.

2. A MEMORANDUM TO PROCUREMENT OFFICERS, NO. F-34-1, FROM THE NATIONAL PARK SERVICE, DATED FEBRUARY 21, 1938, STATES THAT IT IS NOT NECESSARY TO OBTAIN CLEARANCE FOR THE PURCHASE OF SECOND HAND WIPING RAGS FOR PURCHASES FROM COMMERCIAL MARKET SOURCES. THE ITEM,"WIPING CLOTH MATERIAL," IS LISTED IN THE FEDERAL PRISON INDUSTRIES, SCHEDULE OF PRODUCTS, WITH THE FOLLOWING INFORMATION:

"WE NOW MANUFACTURE WIPING CLOTH MATERIAL AS LISTED BELOW TO TAKE THE PLACE OF SECOND HAND WIPING RAGS.'

3. AN ADVANCE DECISION IS REQUESTED.

THE VOUCHER SUBMITTED IS IN THE AMOUNT OF $24.49 AND COVERS A PURCHASE MADE MAY 23, 1938, FROM MOTOR EQUIPMENT CO. OF ALTUS, OKLAHOMA, WHICH PURCHASE INCLUDED, AMONG OTHER ITEMS, 100 POUNDS OF WIPING RAGS AT 13 CENTS PER POUND.

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 AND 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 AGENCY USING A REGULAR, AS DISTINGUISHED FROM AN EMERGENCY, APPROPRIATION TO PURCHASE FROM ANY OTHER SOURCE 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 SUCH APPROPRIATED FUNDS. SEE IN THIS CONNECTION CONSOLIDATED SUPPLY CO. V. UNITED STATES, 59 CT.CLS. 197, WHEREIN 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.

SEE, ALSO, 8 COMP. GEN. 457; 10 ID. 206; 14 COMP. GEN. 270, 748.

AS IT IS NOT ESTABLISHED THAT ITEM 2 OF THIS PURCHASE, COVERING WIPING RAGS, COULD NOT HAVE BEEN PROCURED FROM THE FEDERAL PRISON INDUSTRIES, INC., AND AS THE FUNDS INVOLVED ARE REGULAR AS DISTINGUISHED FROM EMERGENCY RELIEF FUNDS, PAYMENT ON THE VOUCHER, WHICH IS RETURNED, IN AN AMOUNT IN EXCESS OF ($24.49 MINUS $13) $11.49 IS NOT AUTHORIZED.