B-135598, APRIL 30, 1958, 37 COMP. GEN. 720

B-135598: Apr 30, 1958

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YOUR LETTER IS. THIS IS A VERY VALUABLE DOCUMENT FOR SCIENTISTS IN THE FOOD AND DRUG ADMINISTRATION LABORATORIES. WE ARE TOLD THAT THE CURRENT PRICE HAS RISEN TO $1. THIS WAS ACCEPTED BY THE SOCIETY'S INVOICE OF OCTOBER 31. FROM OUR CLAIMS DIVISION TO THE AMERICAN CHEMICAL SOCIETY CONCERNING A SET OF THE THIRD DECENNIAL INDEX PURCHASED BY THE FOOD AND DRUG ADMINISTRATION WHEREIN IT WAS HELD THAT "AS THE PUBLICATIONS IN QUESTION ARE NEITHER A NEWSPAPER. THERE IS NO AUTHORITY FOR PAYMENT ON THE VOUCHER IN ADVANCE OF DELIVERY.'. YOU SAY THAT YOU UNDERSTAND FROM THE AMERICAN CHEMICAL SOCIETY THAT VARIOUS AGENCIES OF GOVERNMENT ARE NOW PURCHASING THE PROPOSED INDEX ON AN ADVANCE PAYMENT BASIS AND YOU ASSUME THAT A CHANGE OF CIRCUMSTANCES HAS OCCURRED SINCE 1950 WHICH WOULD PERMIT PAYMENT IN ADVANCE.

B-135598, APRIL 30, 1958, 37 COMP. GEN. 720

PAYMENTS - ADVANCE - SUBSCRIPTIONS TO NEWSPAPERS, PERIODICALS, ETC. - CHEMICAL INDEX THE DECENNIAL INDEX PUBLISHED BY THE AMERICAN CHEMICAL SOCIETY MAY NOT BE REGARDED AS A NEWSPAPER, MAGAZINE, OR PERIODICAL WITHIN THE MEANING OF THE ADVANCE PAYMENT EXEMPTION IN 31 U.S.C. 530, AND IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY GOVERNMENT AGENCIES MAY NOT MAKE ADVANCE PAYMENTS FOR SUCH A PUBLICATION.

TO R. DAVILA, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, APRIL 30, 1958:

YOUR LETTER OF MARCH 19, 1958, WITH ENCLOSURES INCLUDING COPY OF THE INVOICE INVOLVED, REQUESTS OUR DECISION AS TO WHETHER YOU MAY CERTIFY A VOUCHER FOR $900 IN FAVOR OF THE AMERICAN CHEMICAL SOCIETY COVERING AN ADVANCE PAYMENT FOR A NINETEEN VOLUME SET OF THE FIFTH DECENNIAL INDEX TO CHEMICAL ABSTRACTS.

YOUR LETTER IS, IN PERTINENT PART, AS FOLLOWS:

IN AUGUST 1957 THE AMERICAN CHEMICAL SOCIETY CIRCULARIZED AN OFFER TO SELL THEIR PROPOSED FIFTH DECENNIAL INDEX TO CHEMICAL ABSTRACTS FOR $900. THIS IS A VERY VALUABLE DOCUMENT FOR SCIENTISTS IN THE FOOD AND DRUG ADMINISTRATION LABORATORIES. THE COST COULD BE SPREAD OVER A 3 YEAR PERIOD, PAYABLE IN ADVANCE IN INSTALLMENTS OF $300 EACH. THEY ADVISED THAT WHEN COMPLETED THE INDEX WOULD SELL FOR $1,200 TO $2,000. WE ARE TOLD THAT THE CURRENT PRICE HAS RISEN TO $1,200.

TO TAKE ADVANTAGE OF THE SAVINGS, THE FOOD AND DRUG ADMINISTRATION PLACED AN ORDER FOR THE PROPOSED INDEX. THIS WAS ACCEPTED BY THE SOCIETY'S INVOICE OF OCTOBER 31, 1957.

YOU REFER TO A LETTER DATED OCTOBER 25, 1950, FROM OUR CLAIMS DIVISION TO THE AMERICAN CHEMICAL SOCIETY CONCERNING A SET OF THE THIRD DECENNIAL INDEX PURCHASED BY THE FOOD AND DRUG ADMINISTRATION WHEREIN IT WAS HELD THAT "AS THE PUBLICATIONS IN QUESTION ARE NEITHER A NEWSPAPER, PERIODICAL NOR MAGAZINE, THERE IS NO AUTHORITY FOR PAYMENT ON THE VOUCHER IN ADVANCE OF DELIVERY.' YOU SAY THAT YOU UNDERSTAND FROM THE AMERICAN CHEMICAL SOCIETY THAT VARIOUS AGENCIES OF GOVERNMENT ARE NOW PURCHASING THE PROPOSED INDEX ON AN ADVANCE PAYMENT BASIS AND YOU ASSUME THAT A CHANGE OF CIRCUMSTANCES HAS OCCURRED SINCE 1950 WHICH WOULD PERMIT PAYMENT IN ADVANCE.

SECTION 3648 REVISED STATUTES, 31 U.S.C. 529, PROVIDES, IN PERTINENT PART, THAT:

NO ADVANCE OF PUBLIC MONEY SHALL BE MADE IN ANY CASE UNLESS AUTHORIZED BY THE APPROPRIATION CONCERNED OR OTHER LAW. AND IN ALL CASES OF CONTRACTS FOR THE PERFORMANCE OF ANY SERVICE, OR THE DELIVERY OF ARTICLES OF ANY DESCRIPTION, FOR THE USE OF THE UNITED STATES, PAYMENTS SHALL NOT EXCEED THE VALUE OF THE SERVICE RENDERED, OR OF THE ARTICLES DELIVERED PREVIOUSLY TO SUCH PAYMENT. * * *

SECTION 530, TITLE 31 U.S.C., PROVIDES AS FOLLOWS:

SUBSCRIPTIONS FOR PUBLICATIONS FOR THE DEPARTMENT OF AGRICULTURE, TO BE PAID FOR BY THE SECRETARY OF AGRICULTURE; SUBSCRIPTIONS TO NEWSPAPERS, MAGAZINES, PERIODICALS, AND OTHER PUBLICATIONS, PURCHASED FROM FUNDS OF THE BRANCH, OFFICE, OR OFFICERS OF THE ARMY THE SECRETARY OF THE ARMY MAY FROM TIME TO TIME DESIGNATE; SUBSCRIPTIONS FOR PUBLICATIONS FOR THE VETERANS' ADMINISTRATION, TO BE PAID FOR BY THE DIRECTOR; SUBSCRIPTIONS FOR NEWSPAPERS AND PERIODICALS FOR THE NAVAL SERVICE; SUBSCRIPTIONS CHARGES FOR NEWSPAPERS, MAGAZINES, AND OTHER PERIODICALS FOR OFFICIAL USE OF ANY OFFICE UNDER THE GOVERNMENT OF THE UNITED STATES OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA TO BE PAID FROM APPROPRIATIONS AVAILABLE THEREFOR, MAY BE PAID IN ADVANCE. ( ITALICS SUPPLIED.)

IN OUR DECISION OF DECEMBER 1, 1937, 17 COMP. GEN. 455, WE HELD IN CONNECTION WITH THE ACT OF JUNE 12, 1930,6 STAT. 580, FROM WHICH THE ITALICIZED PORTION OF THE LAST QUOTED CODE PROVISION IS DERIVED, THAT-- QUOTING FROM THE SYLLABUS:

PAYMENT FOR THE THIRD DECENNIAL INDEX TO CHEMICAL ABSTRACTS IS NOT AUTHORIZED IN ADVANCE OF THE DELIVERY OF ITS SEVERAL VOLUMES, AS SUCH PUBLICATION IS NOT A NEWSPAPER, MAGAZINE, OR PERIODICAL WITHIN THE EXCEPTION PROVIDED BY THE ACT OF JUNE 12, 1930, 46 STAT. 580, FROM THE PROHIBITION IN SECTION 3648, REVISED STATUTES, AGAINST PAYMENT FROM APPROPRIATED FUNDS FOR SERVICES OR SUPPLIES IN ADVANCE OF THE RENDITION OF SUCH SERVICES OR THE DELIVERY OF SUCH SUPPLIES * * *.

BY DECISION OF SEPTEMBER 3, 1938, A-90102, WE AFFIRMED OUR EARLIER DECISION. THESE DECISIONS HAVE NOT BEEN OVERRULED AND WE PERCEIVE NO REASON WHY SUCH DECISIONS SHOULD NOT BE FOR APPLICATION IN THE INSTANT CASE.

WHILE IT MAY BE THAT VARIOUS AGENCIES OF THE FEDERAL GOVERNMENT ARE NOW PURCHASING THE PROPOSED INDEX ON AN ADVANCE PAYMENT BASIS, IT ALSO MAY BE THAT THE FEDERAL AGENCIES MAKING ADVANCE PAYMENTS FOR THE PUBLICATION IN QUESTION ARE SPECIFICALLY AUTHORIZED TO DO SO BY PERTINENT APPROPRIATION PROVISIONS OR OTHER LAW, OR THAT SUCH AGENCIES ARE INCLUDED AMONG THOSE AUTHORIZED TO PAY FOR ,PUBLICATIONS" IN ADVANCE BY THE LAST QUOTED CODE PROVISION. IN ANY EVENT, WE ARE NOT AWARE OF ANY CHANGE IN CIRCUMSTANCES THAT WOULD PERMIT PAYMENT IN ADVANCE FOR THE PUBLICATION IN QUESTION IN THE INSTANT CASE.

IN VIEW OF THE FOREGOING, YOU ARE ADVISED THAT YOU MAY NOT CERTIFY A VOUCHER FOR ADVANCE PAYMENT OF THE INVOICE INVOLVED HERE IN THE ABSENCE OF A STATUTORY PROVISION WHICH WOULD HAVE THE EFFECT OF AUTHORIZING SUCH PAYMENT.