B-125630, OCTOBER 26, 1955, 35 COMP. GEN. 235

B-125630: Oct 26, 1955

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WHICH PRECLUDE PAYMENT UNLESS THE BILL WHEN PRESENTED IS ACCOMPANIED BY A COPY OF SUCH WRITTEN AUTHORITY. ARE MANDATORY CONDITIONS PRECEDENT TO PAYMENT AND. A PROPOSED RATIFICATION BY THE HEAD OF THE DEPARTMENT AFTER THE ADVERTISING SERVICES HAVE BEEN RENDERED WOULD NOT BE LEGALLY JUSTIFIABLE NOR WOULD IT REMOVE THE STATUTORY BAR AGAINST PAYMENT. 1955: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 21. THE PERTINENT FACTS RELATIVE TO THE TRANSACTIONS ARE SET FORTH IN A COMMUNICATION DATED APRIL 25. IT FURTHER APPEARS THAT THE ADVERTISING SERVICES SO ORDERED WERE RENDERED BY THE PUBLISHERS IN APPARENT GOOD FAITH AND IN RELIANCE UPON ORDERS WHICH HAD BEEN SIGNED BY AN EMPLOYEE OF THE UNITED STATES GOVERNMENT.

B-125630, OCTOBER 26, 1955, 35 COMP. GEN. 235

ADVERTISING - NEWSPAPERS - AUTHORIZATION REQUIREMENTS - EFFECT OF SUBSEQUENT RATIFICATION THE NEWSPAPER ADVERTISING PUBLICATION CONDITIONS IN SECTION 3828, REVISED STATUTES, AND SECTION 12 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 WHICH REQUIRE ADVANCE WRITTEN AUTHORITY BY THE HEAD OF THE DEPARTMENT OR HIS REPRESENTATIVE, AND WHICH PRECLUDE PAYMENT UNLESS THE BILL WHEN PRESENTED IS ACCOMPANIED BY A COPY OF SUCH WRITTEN AUTHORITY, ARE MANDATORY CONDITIONS PRECEDENT TO PAYMENT AND, THEREFORE, A PROPOSED RATIFICATION BY THE HEAD OF THE DEPARTMENT AFTER THE ADVERTISING SERVICES HAVE BEEN RENDERED WOULD NOT BE LEGALLY JUSTIFIABLE NOR WOULD IT REMOVE THE STATUTORY BAR AGAINST PAYMENT.

TO THE SECRETARY OF THE ARMY, OCTOBER 26, 1955:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 21, 1955, WITH ENCLOSURES, WHEREIN YOU REQUEST A DECISION AS TO WHETHER THE ACTION TAKEN BY THE PURCHASING AND CONTRACTING OFFICER, QUARTERMASTER SUPPLY OFFICE, FORT BUCHANAN, PUERTO RICO, IN ISSUING ORDERS FOR ADVERTISING IN TWO LOCAL DAILY NEWSPAPERS WITHOUT UTILIZING THE PROPER PROCUREMENT FORMS AS PRESCRIBED IN PARAGRAPH 2-202.4, ARMY PROCUREMENT PROCEDURE, AND WITHOUT FIRST HAVING OBTAINED WRITTEN AUTHORITY THEREFOR, AS REQUIRED BY SECTION 3828, REVISED STATUTES, NOW MAY BE RATIFIED OR APPROVED BY YOU SO AS TO PLACE THE OUTSTANDING ACCOUNTS OF THE PUBLISHERS IN LINE FOR PAYMENT.

THE PERTINENT FACTS RELATIVE TO THE TRANSACTIONS ARE SET FORTH IN A COMMUNICATION DATED APRIL 25, 1955, FROM THE ASSISTANT ADJUTANT GENERAL, UNITED STATES ARMY FORCES ANTILLES AND MILITARY DISTRICT OF PUERTO RICO, AND ALSO IN A MEMORANDUM DATED SEPTEMBER 16, 1955, PREPARED BY THE ACTING CHIEF, PROCUREMENT LAW DIVISION, OFFICE OF THE JUDGE ADVOCATE GENERAL. APPEARS THAT ON JANUARY 10, 1955, THE CONTRACTING OFFICER, ACTING UPON THE REQUEST OF THE PUERTO RICO USAR PROPERTY OFFICER, ISSUED ORDERS NOS. 984 AND 985, IN THE RESPECTIVE AMOUNTS OF $265 AND $218, TO COVER THE COST OF PUBLISHING CERTAIN ADVERTISING NOTICES IN THE DAILY NEWSPAPERS " EL MUNDO" AND THE EDITORIAL " EL IMPARTIAL," BOTH OF SAN JUAN, IN CONNECTION WITH THE USAR RECRUITING PROGRAM. IT FURTHER APPEARS THAT THE ADVERTISING SERVICES SO ORDERED WERE RENDERED BY THE PUBLISHERS IN APPARENT GOOD FAITH AND IN RELIANCE UPON ORDERS WHICH HAD BEEN SIGNED BY AN EMPLOYEE OF THE UNITED STATES GOVERNMENT. HOWEVER, AS ABOVE STATED, THE ORDERS FOR THESE SERVICES WERE PLACED BY THE CONTRACTING OFFICER WITHOUT COMPLYING WITH THE REGULATIONS PRESCRIBED IN DEPARTMENTAL BULLETINS ENTITLED ARMY PROCUREMENT PROCEDURE, PARAGRAPH 2-202.4 OF WHICH READS, IN PERTINENT PART:

A (2) NO ADVERTISEMENT, NOTICE, OR PROPOSAL SHALL BE PUBLISHED IN ANY NEWSPAPER EXCEPT IN PURSUANCE OF WRITTEN AUTHORITY FOR SUCH PUBLICATION FROM THE SECRETARY OR THE APPROPRIATE OFFICIAL NAMED ABOVE, OR OF A PERSON TO WHOM ADMINISTRATIVE DUTIES HAVE BEEN DULY ASSIGNED BY THE SECRETARY OR THE APPROPRIATE OFFICIAL NAMED ABOVE, AND NO BILL FOR ANY SUCH ADVERTISING OR PUBLICATION SHALL BE PAID UNLESS THERE BE PRESENTED, WITH SUCH BILL, A COPY OF SUCH WRITTEN AUTHORITY.

B (3) IN ALL CASES, AUTHORITY TO ADVERTISE MUST BE SECURED IN ADVANCE. SUCH AUTHORITY WILL NOT BE GRANTED RETROACTIVELY.

THESE REGULATIONS ARE BASED UPON THE PROVISIONS OF SECTION 3828, REVISED STATUTES, 44 U.S.C. 324, AND SECTION 12 OF THE ACT OF AUGUST 2, 1946, PUBLIC LAW 600, 60 STAT. 806, 809, 5 U.S.C. 22A, WHICH PROHIBIT THE PUBLICATION IN "ANY NEWSPAPER WHATEVER" OF AN ADVERTISEMENT, NOTICE OR PROPOSAL FOR ANY EXECUTIVE DEPARTMENT OF THE GOVERNMENT "EXCEPT IN PURSUANCE OF A WRITTEN AUTHORITY FOR SUCH PUBLICATION FROM THE HEAD OF SUCH DEPARTMENT," OR BY ONE SPECIFICALLY DESIGNATED BY HIM TO ACT IN HIS STEAD. SECTION 3828, REVISED STATUTES, FURTHER PROVIDES THAT "NO BILL FOR SUCH ADVERTISING, OR PUBLICATION, SHALL BE PAID UNLESS THERE BE PRESENTED, WITH SUCH BILL, A COPY OF SUCH WRITTEN AUTHORITY.'

IT IS UNDERSTOOD THAT NEITHER THE PURCHASING AND CONTRACTING OFFICER, NOR THE PUERTO RICO USAR PROPERTY OFFICER, WHO ORIGINALLY REQUESTED THAT THESE ADVERTISING ORDERS BE ISSUED, HAD THE REQUISITE AUTHORITY, DELEGATED OR OTHERWISE, TO ORDER THE PUBLICATION OF THE NOTICES HERE IN CONTROVERSY. SEE, IN THIS CONNECTION, GENERAL REGULATIONS NO. 109 REVISED, DATED JANUARY 17, 1949, 28 COMP. GEN. 742, 743; 28 ID. 305.

THE PROVISIONS OF SECTION 3828, REVISED STATUTES, ARE UNEQUIVOCAL AND DO NOT PERMIT OF ANY INTERPRETATION CONTRARY TO THE PURPOSES AND MEANING THEREIN PLAINLY EXPRESSED. THE REQUIREMENT THAT ADVANCE WRITTEN AUTHORITY FOR ADVERTISING IN NEWSPAPERS BE GRANTED BY THE HEAD OF THE DEPARTMENT, OR BY SOME OTHER PARTY SPECIFICALLY DESIGNATED BY HIM TO ACT IN HIS STEAD, LEAVES NO ROOM FOR ANY CONSTRUCTION OR INTERPRETATION CONTRARY TO THAT EXPRESSED IN THE STATUTE ITSELF AND, HENCE, NO EXCEPTION MAY BE ADDED THERETO IN ORDER TO ALLEVIATE A HARDSHIP IN ANY PARTICULAR INSTANCE. CF. CORONA COAL CO. V. UNITED STATES, 263 U.S. 537, 540, AND THE JUDICIAL AUTHORITIES THERE CITED. IN THEIR INTERPRETATION OF THIS STATUTE, THE ACCOUNTING OFFICERS OF THE GOVERNMENT UNIFORMLY HAVE HELD THAT WRITTEN AUTHORIZATION IN ADVANCE OF THE ADVERTISING SERVICES ORDERED IS A CONDITION PRECEDENT TO THE CREATION OF A VALID AND BINDING OBLIGATION AGAINST THE UNITED STATES, AND FURTHER, THAT A SUBSEQUENT APPROVAL OR ATTEMPTED RATIFICATION OF AN EXPENDITURE FOR ADVERTISING, SUCH AS YOU SUGGEST, WOULD NOT CONSTITUTE A COMPLIANCE WITH THE MANDATORY REQUIREMENT OF THE STATUTE THAT "WRITTEN AUTHORITY FOR SUCH PUBLICATION" FIRST BE OBTAINED FROM THE HEAD OF THE DEPARTMENT, OR HIS DESIGNATED REPRESENTATIVE. 5 COMP. DEC. 166; 3 COMP. GEN. 737; 4 ID. 841; 17 ID. 693; 26 ID. 76; CF. 22ID. 1083. THESE DECISIONS ARE NOT TO BE CONFUSED, HOWEVER, WITH OTHERS WHEREIN WE HELD THAT THE REQUIREMENTS OF CERTAIN STATUTES PROVIDING FOR AUTHORIZATION "OR APPROVAL" OF AN EXPENDITURE OR AN ACT BY THE DEPARTMENT HEAD ARE SATISFIED BY AN APPROPRIATE SHOWING THAT AUTHORIZATION FOR THE EXPENDITURE EITHER WAS GIVEN IN ADVANCE, OR THAT THE EXPENDITURE WAS APPROVED AFTER ITS INCURRENCE. SEE 21 COMP. GEN. 921; 22 ID. 894; 32 ID. 171; 33 ID. 140.

HERE THE STATUTE MAKES NO PROVISION FOR THE APPROVAL OF ADVERTISING SERVICES AFTER THEY HAVE BEEN RENDERED, NOR DOES IT PERMIT THE PAYMENT ON ANY INVOICE FOR ADVERTISING UNLESS THE BILL, WHEN ,PRESENTED," IS ACCOMPANIED BY "A COPY OF SUCH WRITTEN AUTHORITY" FROM THE DEPARTMENT HEAD, OR FROM HIS REPRESENTATIVE. MANIFESTLY, A COMPLIANCE WITH THESE CONDITIONS IS A CONDITION PRECEDENT TO PAYMENT FOR ANY ADVERTISING SERVICES RENDERED. IN THE CIRCUMSTANCES, WE ARE LEFT WITH NO ALTERNATIVE BUT TO ADVISE THAT THE PROPOSED RATIFICATION BY YOU OF THE ACTION OF THE CONTRACTING OFFICER WOULD NOT BE LEGALLY JUSTIFIABLE, NOR WOULD IT OPERATE TO REMOVE THE STATUTORY BAR AGAINST PAYMENT OF THE CURRENT INVOICES. SEE WRIGHT V. UNITED STATES, 15 C.1CLS. 80, 90.

THE PAPERS WHICH ACCOMPANIED YOUR COMMUNICATION OF SEPTEMBER 21, 1955, WILL BE RETAINED HERE, AS REQUESTED, AND WILL BE GIVEN APPROPRIATE CONSIDERATION IN THE EVENT IT IS DECIDED TO TRANSMIT THE CLAIMANTS' INVOICES HERE FOR DIRECT SETTLEMENT AS CLAIMS.