B-113044, JANUARY 2, 1953, 32 COMP. GEN. 309

B-113044: Jan 2, 1953

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ARE SUBJECT TO THE FOREIGN PRODUCT PURCHASE RESTRICTION OF THE BUY-AMERICAN ACT. 12 COMP. IT IS STATED IN THE LETTER THAT THE BID SUBMITTED BY BENZIGER BROTHERS. WAS IDENTICAL TO THAT SUBMITTED BY THE FOREIGN PUBLISHER BUT THAT THE AWARD WAS SPLIT BETWEEN THE TWO BIDDERS BECAUSE THE FOREIGN PUBLISHER HAD PROVIDED FOR A LOWER FREIGHT DIFFERENTIAL FOR PACIFIC COAST DESTINATIONS. THE COMPANY IS OF THE OPINION THAT THE SO CALLED BUY- AMERICAN ACT. WAS APPLICABLE TO THE PROCUREMENT. IT IS RECOGNIZED THAT SECTION 6-103.1 OF THE ARMED (SERVICES PROCUREMENT REGULATIONS SPECIFICALLY STATES THAT BOOKS ARE NOT SUBJECT TO THE PROVISIONS OF THE BUY-AMERICAN ACT AND THAT. SUCH REGULATION IS BASED ON THE DECISION OF MY PREDECESSOR APPEARING IN 12 COMP.

B-113044, JANUARY 2, 1953, 32 COMP. GEN. 309

PURCHASES - FOREIGN PRODUCTS - BOOKS, PERIODICALS, AND NEWSPAPERS BOOKS, PERIODICALS, MAGAZINES, NEWSPAPERS, ETC., ARE SUBJECT TO THE FOREIGN PRODUCT PURCHASE RESTRICTION OF THE BUY-AMERICAN ACT. 12 COMP. GEN. 618, OVERRULED.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, JANUARY 2, 1953:

BY LETTER OF DECEMBER 3, 1952, THE FIRM OF BENZIGER BROTHERS, INC., BROUGHT TO THE ATTENTION OF THIS OFFICE THE RECENT ACTION OF THE DEPARTMENT OF THE NAVY IN AWARDING A CONTRACT FOR CERTAIN LITURGICAL BOOKS TO A FOREIGN PUBLISHER.

IT IS STATED IN THE LETTER THAT THE BID SUBMITTED BY BENZIGER BROTHERS, INC., WAS IDENTICAL TO THAT SUBMITTED BY THE FOREIGN PUBLISHER BUT THAT THE AWARD WAS SPLIT BETWEEN THE TWO BIDDERS BECAUSE THE FOREIGN PUBLISHER HAD PROVIDED FOR A LOWER FREIGHT DIFFERENTIAL FOR PACIFIC COAST DESTINATIONS. THE COMPANY IS OF THE OPINION THAT THE SO CALLED BUY- AMERICAN ACT, APPROVED MARCH 3, 1933, 47 STAT. 1520, AS AMENDED BY SECTION 633 OF THE ACT OF OCTOBER 29, 1949, 63 STAT. 1024, WAS APPLICABLE TO THE PROCUREMENT.

IT IS RECOGNIZED THAT SECTION 6-103.1 OF THE ARMED (SERVICES PROCUREMENT REGULATIONS SPECIFICALLY STATES THAT BOOKS ARE NOT SUBJECT TO THE PROVISIONS OF THE BUY-AMERICAN ACT AND THAT, IN ALL PROBABILITY, SUCH REGULATION IS BASED ON THE DECISION OF MY PREDECESSOR APPEARING IN 12 COMP. GEN. 618 WHEREIN IT WAS HELD, QUOTING FROM THE SYLLABUS:

BOOKS, PERIODICALS, MAGAZINES, NEWSPAPERS, ETC., ARE NOT "ARTICLES, MATERIALS AND SUPPLIES" WITHIN THE REQUIREMENTS OF SECTION 2, TITLE III, OF THE ACT OF MARCH 3, 1933, 47 STAT. 1520.

BASICALLY, THE CONCLUSION IN THAT DECISION RESTED ON THE PROPOSITION THAT SINCE APPROPRIATED FUNDS GENERALLY ARE NOT AVAILABLE FOR THE PURCHASE OF BOOKS, PERIODICALS, ETC., IN THE ABSENCE OF SPECIFIC AUTHORIZATION, THE TERM "ARTICLES, MATERIALS, AND SUPPLIES" COULD NOT HAVE BEEN INTENDED TO INCLUDE BOOKS, PERIODICALS, ETC. I AM UNABLE TO AGREE WITH THE CONCLUSION OF THAT DECISION OR WITH THE REASONING UPON WHICH IT WAS BASED. I CAN FIND NO PROPER BASIS FOR EXCLUDING BOOKS FROM THE ORDINARY CONNOTATION OF THE TERM, PARTICULARLY THE WORD "ARTICLES.'

MOREOVER, AS THE BUY-AMERICAN ACT WAS CLARIFIED BY THE AMENDMENT OF OCTOBER 29, 1949, 41 U.S.C. 10 (D), THERE NO LONGER EXIST THE DIFFICULTIES EXPERIENCED BY BOOK PUBLISHERS REFERRED TO IN THE DECISION 12 COMP. GEN. 618, IN BEING UNABLE TO CERTIFY THAT THE MATERIALS USED IN THE MANUFACTURE OF THE BOOK WERE PRODUCED IN THE UNITED STATES. IT IS NOW CLEAR THAT THE ACT REQUIRES THE PURCHASE OF ARTICLES, MATERIALS OR SUPPLIES MANUFACTURED IN THE UNITED STATES, REGARDLESS OF THE SOURCE OF THE CONSTITUENT MATERIALS, IF THEY ARE AVAILABLE IN SUFFICIENT AND REASONABLE COMMERCIAL QUANTITIES AND OF SATISFACTORY QUALITY, UNLESS THE HEAD OF THE DEPARTMENT DETERMINES THEIR PURCHASE TO BE INCONSISTENT WITH THE PUBLIC INTEREST OR THEIR COST TO BE UNREASONABLE. IT IS MY OPINION, THEREFORE, THAT PURCHASES OF BOOKS, PERIODICALS, MAGAZINES, NEWSPAPERS, ETC., MUST BE REGARDED AS SUBJECT TO THE RESTRICTIONS OF THE BUY-AMERICAN ACT.

ACCORDINGLY, 12 COMP. GEN. 618 IS HEREBY OVERRULED AND THE NECESSARY ACTION TO EFFECT A REVISION OF THE APPLICABLE REGULATIONS OF YOUR DEPARTMENT SHOULD BE TAKEN AS SOON AS PRACTICABLE.