B-130637, FEB. 26, 1957

B-130637: Feb 26, 1957

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YOU REPORT THAT THE REQUESTS FOR PUBLICATION OF THESE NOTICES WERE GIVEN THE PUBLISHERS BY THE ADMINISTRATION'S DIRECTOR IN SAN DIEGO. WE HAVE CONSISTENTLY CONSTRUED SECTION 3828. THAT THE PROHIBITION AGAINST PAYMENT IN THE ABSENCE OF SUCH WRITTEN AUTHORIZATION IS MANDATORY AND MAY NOT BE WAIVED. THE ACCOUNTING OFFICERS OF THE GOVERNMENT UNIFORMLY HAVE HELD THAT THE STATUTE IS APPLICABLE GENERALLY TO ALL BOARDS. WHICH ARE HEREWITH RETURNED.

B-130637, FEB. 26, 1957

TO MR. LESTER H. THOMPSON, AUTHORIZED CERTIFYING OFFICER, FEDERAL HOUSING ADMINISTRATION:

YOUR LETTER OF FEBRUARY 5, 1957, REQUESTS OUR DECISION WHETHER YOU MAY PROPERLY CERTIFY FOR PAYMENT TWO VOUCHERS, TRANSMITTED THEREWITH, IN FAVOR OF IMPERIAL VALLEY PRESS, EL CENTRE, CALIFORNIA, AND UNION TRIBUNE PUBLISHING COMPANY, P.O. BOX 231, SAN DIEGO 12, CALIFORNIA, IN THE AMOUNTS OF $3.50 AND $23.20, RESPECTIVELY. THE VOUCHERS COVER CHARGES FOR NEWSPAPER ADVERTISING IN CONNECTION WITH THE SALE OF TWO PROPERTIES WHICH HAD BEEN ACQUIRED BY THE COMMISSIONER OF THE FEDERAL HOUSING ADMINISTRATION.

YOU REPORT THAT THE REQUESTS FOR PUBLICATION OF THESE NOTICES WERE GIVEN THE PUBLISHERS BY THE ADMINISTRATION'S DIRECTOR IN SAN DIEGO, CALIFORNIA, WITHOUT THE WRITTEN AUTHORITY OF THE COMMISSIONER REQUIRED BY SECTION 3828, REVISED STATUTES, AND PARAGRAPH 8116, OF THE FHA PROPERTY MANAGEMENT HANDBOOK, VOLUME VIII, SECTION 1, OF THE FHA MANUAL WHICH PROVIDES:

"IN NO EVENT SHALL THE COMMISSIONER BE LIABLE OR OBLIGATED TO PAY FOR ANY ADVERTISING OR PROMOTIONAL WORK OR SHARE THEREOF UNLESS SPECIFICALLY AGREED TO IN ADVANCE IN WRITING BY THE COMMISSIONER.'

SECTION 3828, REVISED STATUTES, 44 U.S.C. 324, PROVIDES--- QUOTING FROM THE CODE--- AS FOLLOWS:

"NO ADVERTISEMENT, NOTICE, OR PROPOSAL FOR ANY EXECUTIVE DEPARTMENT OF THE GOVERNMENT, OR FOR ANY BUREAU THEREOF, OR FOR ANY OFFICE THEREWITH CONNECTED, SHALL BE PUBLISHED IN ANY NEWSPAPER WHATEVER, EXCEPT IN PURSUANCE OF A WRITTEN AUTHORITY FOR SUCH PUBLICATION FROM THE HEAD OF SUCH DEPARTMENT; 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.'

WHILE SECTION 12 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 809, 5 U.S.C. 222, PERMITS HEADS OF DEPARTMENTS TO DELEGATE TO SUBORDINATE OFFICIALS THE AUTHORITY VESTED IN HIM BY 44 U.S.C. 324 TO AUTHORIZE ADVERTISING, IT APPEARS FROM THE PROVISION OF THE FHA MANUAL QUOTED ABOVE AND YOUR LETTER THAT NO SUCH DELEGATION HAD BEEN MADE TO THE ADMINISTRATION'S DIRECTORS.

WE HAVE CONSISTENTLY CONSTRUED SECTION 3828, REVISED STATUTES, TO REQUIRE A WRITTEN AUTHORIZATION IN ADVANCE BY THE HEAD OF THE DEPARTMENT OR A PERSON DELEGATED BY HIM AS A CONDITION PRECEDENT TO THE CREATION OF AN OBLIGATION AGAINST THE UNITED STATES; AND, THAT THE PROHIBITION AGAINST PAYMENT IN THE ABSENCE OF SUCH WRITTEN AUTHORIZATION IS MANDATORY AND MAY NOT BE WAIVED. ALSO, THE ACCOUNTING OFFICERS OF THE GOVERNMENT UNIFORMLY HAVE HELD THAT THE STATUTE IS APPLICABLE GENERALLY TO ALL BOARDS, COMMISSIONS AND ESTABLISHMENTS OF THE GOVERNMENT AND THAT A SUBSEQUENT APPROVAL OR ATTEMPTED RATIFICATION OF AN EXPENDITURE FOR ADVERTISING DOES NOT CONSTITUTE COMPLIANCE WITH THE MANDATORY REQUIREMENT OF THE STATUTE THAT "WRITTEN AUTHORITY FOR SUCH PUBLICATION" FIRST BE OBTAINED. SEE 5 COMP. DEC. 166; 25 ID. 348; 27 ID. 124; 3 COMP. GEN. 737; 4 ID. 841; 17 ID. 693; 26 ID. 76; 35 ID. 235. ALSO, SEE SECTION 18 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 811, DEFINING "DEPARTMENT" AS USED IN THAT ACT TO INCLUDE INDEPENDENT ESTABLISHMENTS AND CERTAIN OTHER GOVERNMENT AGENCIES.

ACCORDINGLY, THE VOUCHERS, WHICH ARE HEREWITH RETURNED, MAY NOT BE CERTIFIED FOR PAYMENT.