A-9624, AUGUST 19, 1925, 5 COMP. GEN. 130

A-9624: Aug 19, 1925

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IS NOT AN EXECUTIVE DEPARTMENT OR GOVERNMENT ESTABLISHMENT WITHIN THE PURVIEW OF THE ACT OF JUNE 17. IS NOT REQUIRED TO PURCHASE SUPPLIES (INK AND TYPEWRITER RIBBONS) FOR OFFICE USE FROM CONTRACTORS LISTED ON THE GENERAL SCHEDULE OF SUPPLIES. IT MAY BE STATED THAT IF YOU ARE OF THE OPINION THAT THE INK AND TYPEWRITER RIBBONS FURNISHED ARE NOT IN ACCORDANCE WITH THE GOVERNMENT SPECIFICATIONS THEREFOR THEY MAY BE TESTED BY AVAILABLE GOVERNMENT FACILITIES. IF NOT UP TO FEDERAL SPECIFICATIONS THE CONTRACTORS MAY BE REQUIRED TO SUPPLY ARTICLES WHICH MEET THE SPECIFICATIONS UPON WHICH THEIR BIDS WERE MADE AND THE CONTRACTS AWARDED. OF WHICH THE DIRECTOR OF THE BUREAU OF STANDARDS IS CHAIRMAN. SEE CIRCULAR NO. 42 OF THE BUREAU OF THE BUDGET UNDER WHICH THE BOARD WAS ESTABLISHED.

A-9624, AUGUST 19, 1925, 5 COMP. GEN. 130

PURCHASES - REGISTER OF WILLS, DISTRICT OF COLUMBIA THE OFFICE OF THE REGISTER OF WILLS, DISTRICT OF COLUMBIA, IS NOT AN EXECUTIVE DEPARTMENT OR GOVERNMENT ESTABLISHMENT WITHIN THE PURVIEW OF THE ACT OF JUNE 17, 1910, 36 STAT. 531, AND IS NOT REQUIRED TO PURCHASE SUPPLIES (INK AND TYPEWRITER RIBBONS) FOR OFFICE USE FROM CONTRACTORS LISTED ON THE GENERAL SCHEDULE OF SUPPLIES.

COMPTROLLER GENERAL MCCARL TO THE REGISTER OF WILLS, DISTRICT OF COLUMBIA, AUGUST 19, 1925:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 25, 1925, REQUESTING DECISION AS TO YOUR AUTHORITY TO PURCHASE INK AND TYPEWRITER RIBBONS FOR USE IN YOUR OFFICE OF A DIFFERENT QUALITY THAN THOSE FURNISHED BY THE CONTRACTORS LISTED ON THE GENERAL SCHEDULE OF SUPPLIES.

ASIDE FROM THE QUESTION OF YOUR RIGHT TO MAKE PURCHASES FROM CONTRACTORS OTHER THAN THOSE LISTED ON THE GENERAL SCHEDULE OF SUPPLIES, IT MAY BE STATED THAT IF YOU ARE OF THE OPINION THAT THE INK AND TYPEWRITER RIBBONS FURNISHED ARE NOT IN ACCORDANCE WITH THE GOVERNMENT SPECIFICATIONS THEREFOR THEY MAY BE TESTED BY AVAILABLE GOVERNMENT FACILITIES, AND IF NOT UP TO FEDERAL SPECIFICATIONS THE CONTRACTORS MAY BE REQUIRED TO SUPPLY ARTICLES WHICH MEET THE SPECIFICATIONS UPON WHICH THEIR BIDS WERE MADE AND THE CONTRACTS AWARDED, OR, UPON FAILURE TO DO SO, THE SUPPLIES MAY BE PURCHASED IN THE OPEN MARKET AND THE EXCESS COST CHARGED TO THE CONTRACTOR. THE MATTER OF HAVING THE SUPPLIES TESTED, OR OF HAVING A CHANGE MADE IN THE STANDARD SPECIFICATIONS, SHOULD BE TAKEN UP WITH THE FEDERAL SPECIFICATIONS BOARD, OF WHICH THE DIRECTOR OF THE BUREAU OF STANDARDS IS CHAIRMAN. SEE CIRCULAR NO. 42 OF THE BUREAU OF THE BUDGET UNDER WHICH THE BOARD WAS ESTABLISHED.

THE PRIMARY QUESTION, HOWEVER, RAISED IN YOUR SUBMISSION APPEARS TO BE WHETHER THE OFFICE OF THE REGISTER OF WILLS IS A "GOVERNMENT ESTABLISHMENT" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 4 OF THE ACT OF JUNE 17, 1910, 36 STAT. 531; THAT IS, WHETHER YOU ARE REQUIRED BY THAT ACT TO OBTAIN SUPPLIES FOR YOUR OFFICE UNDER CONTRACTS MADE BY THE SECRETARY OF THE TREASURY IN THE MANNER THEREIN PROVIDED.

THE ACT OF FEBRUARY 27, 1801, 2 STAT. 107, DIVIDED THE DISTRICT OF COLUMBIA AS THEN CONSTITUTED INTO TWO COUNTIES, LYING ON THE RESPECTIVE SIDES OF THE POTOMAC, AND PROVIDED IN SECTION 12 THEREOF:

* * * THAT THERE SHALL BE APPOINTED IN AND FOR EACH OF THE SAID COUNTIES, A REGISTER OF WILLS, * * * WHO * * * SHALL HAVE ALL THE POWERS, PERFORM ALL THE DUTIES, AND RECEIVE THE LIKE FEES, AS * * * REGISTERS OF WILLS * * * WITHIN THE STATE OF MARYLAND * * *.

THE LAW BEING SILENT AS TO THE APPOINTING POWER, THE APPOINTMENT OF THE REGISTER OF WILLS IS VESTED IN THE PRESIDENT OF THE UNITED STATES, WITH THE ADVICE AND CONSENT OF THE SENATE, IN ACCORDANCE WITH ARTICLE II, SECTION 2, OF THE CONSTITUTION OF THE UNITED STATES. 13 OP.ATTY.GEN. 409.

THE ACT OF JULY 14, 1892, 27 STAT. 153, CONTAINS THE FOLLOWING PROVISION:

THAT THE REGISTER OF WILLS OF THE DISTRICT OF COLUMBIA SHALL NOT AFTER DECEMBER THIRTY-FIRST, EIGHTEEN HUNDRED AND NINETY-TWO, RETAIN OF THE FEES AND EMOLUMENTS OF HIS OFFICE FOR HIS PERSONAL COMPENSATION, OVER AND ABOVE HIS NECESSARY CLERK HIRE AND THE INCIDENTAL EXPENSES OF HIS OFFICE, CERTIFIED TO BY THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, OR BY ONE OF ITS JUSTICES APPOINTED BY IT FOR THAT PURPOSE, AND TO BE AUDITED AND ALLOWED BY THE PROPER ACCOUNTING OFFICERS OF THE TREASURY, A SUM EXCEEDING THREE THOUSAND SIX HUNDRED DOLLARS A YEAR, OR EXCEEDING THAT RATE FOR ANY TIME LESS THAN A YEAR; AND THE SURPLUS OF SUCH FEES AND EMOLUMENTS SHALL BE PAID INTO THE TREASURY TO THE CREDIT OF THE DISTRICT OF COLUMBIA * *

SECTION 120 OF THE CODE OF LAW FOR THE DISTRICT OF COLUMBIA AUTHORIZES AND DIRECTS THE REGISTER OF WILLS TO ACT AS CLERK OF THE SUPREME COURT OF THE DISTRICT OF COLUMBIA WHEN SITTING IN PROBATE TERM. SECTION 121 OF THE CODE PRESCRIBES THE ADDITIONAL DUTIES SO CONFERRED UPON THE REGISTER OF WILLS AND PROVIDES:

* * * HE SHALL MAKE OUT AND ISSUE EVERY SUMMONS, PROCESS, AND ORDER OF THE COURT, AND IN EVERY RESPECT ACT UNDER ITS CONTROL AND DIRECTION IN REFERENCE TO MATTERS COMING WITHIN THE JURISDICTION OF SAID COURT. * * *.THAT ANY EXPENDITURES INCURRED BY HIM IN SO DOING SHALL NOT BE A CHARGE UPON THE PUBLIC TREASURY, BUT SHALL, TOGETHER WITH HIS OWN COMPENSATION, AT THE RATE OF FOUR THOUSAND DOLLARS PER ANNUM, BE PAID OUT OF THE REVENUES OF THE OFFICE OF REGISTER OF WILLS * * *.

SECTION 1111 OF THE CODE PRESCRIBES THE FEES TO BE CHARGED BY THE REGISTER OF WILLS IN HIS CAPACITY AS REGISTER OF WILLS OR CLERK OF THE PROBATE COURT, AND SECTION 1636 OF SAID CODE EXPRESSLY EXCEPTS FROM THE REPEAL PROVISIONS OF THE CODE---

ACTS OR PARTS OF ACTS AUTHORIZING, DEFINING, AND PRESCRIBING THE ORGANIZATION, POWERS, DUTIES, FEES, AND EMOLUMENTS OF THE REGISTER OF WILLS OF THE DISTRICT OF COLUMBIA AND HIS OFFICE.

SUMMING UP THE VARIOUS ACTS, THE REGISTER OF WILLS IS APPOINTED BY THE PRESIDENT OF THE UNITED STATES; HIS OFFICIAL DUTIES ARE PERFORMED LARGELY UNDER THE CONTROL OF THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, WHICH COURT MUST CERTIFY ALL EXPENDITURES MADE BY HIM, AND SUCH EXPENDITURES ARE SUBJECT TO AUDIT BY THIS OFFICE; HIS DUTIES ARE NOT DIRECTLY CONNECTED WITH THOSE OF THE EXECUTIVE DEPARTMENTS OR ESTABLISHMENTS, BUT ARE CONFINED SOLELY TO MATTERS ARISING IN CONNECTION WITH THE DISTRICT LAWS AND LOCAL GOVERNMENT. THE FACT THAT THE EXPENDITURES MUST BE CERTIFIED BY THE SUPREME COURT OF THE DISTRICT WOULD INDICATE AN INTENT THAT SUCH EXPENDITURES ARE TO BE MADE ON THE SAME OR A SIMILAR BASIS AS EXPENDITURES OF THAT COURT. IN A DECISION BY THE FORMER COMPTROLLER OF THE TREASURY, APRIL 28, 1917, 23 COMP. DEC. 599, IT WAS HELD THAT THE SUPREME COURT OF THE DISTRICT OF COLUMBIA IS NOT AN EXECUTIVE DEPARTMENT NOR A GOVERNMENT ESTABLISHMENT IN WASHINGTON, AND THEREFORE IS NOT WITHIN THE PURVIEW OF THE ACT OF JUNE 17, 1910, SUPRA, UNDER WHICH THE GENERAL SUPPLY SCHEDULE WAS ESTABLISHED.

IN A SIMILAR QUESTION AS TO THE RIGHT OF THE RECORDER OF DEEDS OF THE DISTRICT OF COLUMBIA TO PURCHASE FROM OTHER THAN THE CONTRACTORS LISTED ON THE GENERAL SCHEDULE OF SUPPLIES, IT WAS HELD THAT AS THE RECORDER IS AN OFFICER OF THE DISTRICT GOVERNMENT, HIS OFFICE IS NOT AN EXECUTIVE DEPARTMENT NOR A GOVERNMENT ESTABLISHMENT WITHIN THE PURVIEW OF THE ACT OF JUNE 17, 1910. A.D. 6551, MARCH 29, 1922. SEE ALSO 28 OP.ATTY.GEN. 438.

IT MUST BE HELD, THEREFORE, THAT THE OFFICE OF THE REGISTER OF WILLS OF THE DISTRICT OF COLUMBIA IS NOT AN EXECUTIVE DEPARTMENT NOR A GOVERNMENT ESTABLISHMENT WITHIN THE PURVIEW OF THE ACT OF JUNE 17, 1910, AND IS NOT REQUIRED BY LAW TO PURCHASE ITS SUPPLIES FROM THE CONTRACTORS LISTED ON THE GENERAL SCHEDULE OF SUPPLIES. HOWEVER, IT WOULD APPEAR TO BE GOOD ADMINISTRATION AND IN THE INTERESTS OF ECONOMY GENERALLY TO DO SO WHEN SATISFACTORY SUPPLIES CAN BE PROCURED THEREFROM.

ANSWERING SPECIFICALLY THE QUESTION PRESENTED, YOU ARE ADVISED THAT YOU HAVE THE AUTHORITY TO PURCHASE INK AND TYPEWRITER RIBBONS FROM OTHER SOURCES IF UNABLE TO PROCURE SATISFACTORY KINDS FROM THE LISTED CONTRACTORS.

WHERE THE PURCHASE OF SUCH ARTICLES EXCEEDS $25 (SEE ACT OF MARCH 2, 1911, 36 STAT. 975) THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, IN THE MATTER OF SECURING COMPETITIVE BIDS SHOULD BE COMPLIED WITH. ATTENTION IS INVITED, ALSO, TO THE PROVISIONS OF SECTION 3743, REVISED STATUTES, UNDER WHICH ALL CONTRACTS OR AGREEMENTS BY YOUR OFFICE FOR THE PROCUREMENT OF SUPPLIES OTHER THAN CASH PURCHASES--- I.E., IN WHICH PAYMENT IS NOT MADE SIMULTANEOUSLY WITH THE DELIVERY OF THE GOODS--- SHOULD BE REDUCED TO WRITING AND FILED IN THIS OFFICE FOR CONSIDERATION IN CONNECTION WITH THE AUDIT OF YOUR ACCOUNTS WHICH THIS OFFICE IS REQUIRED BY LAW TO MAKE.