B-144618, APR. 15, 1966

B-144618: Apr 15, 1966

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TO THE SECRETARY OF AGRICULTURE: REFERENCE IS MADE TO THE LETTER OF FEBRUARY 14. WHICH ARE GOVERNED BY THE PROVISIONS OF 44 U.S.C. 322. THE PROVISIONS OF CHAPTER 5200 OF THE GAO MANUAL ARE DESIGNED TO IMPLEMENT THESE STATUTORY PROVISIONS. THE ASSISTANT SECRETARY STATES THE DEPARTMENT'S POSITION THAT THE "PRESENT PROCEDURE FOR PROCURING ADVERTISING IS CONSIDERED UNNECESSARILY COMPLEX FOR THE FOLLOWING REASONS: "1. THE PREPARATION AND PROCESSING OF THE SF-1143 IS A MORE COMPLICATED PROCEDURE THAN ARE THESE SMALL PURCHASE PROCEDURES. "2. THE PUBLISHER IS REQUIRED TO COMPLETE A GOVERNMENT VOUCHER FORM (SF- 1143 REVERSE). IT IS NO LONGER CUSTOMARY IN THE TRADE TO FURNISH SUCH DETAILED INVOICES.

B-144618, APR. 15, 1966

TO THE SECRETARY OF AGRICULTURE:

REFERENCE IS MADE TO THE LETTER OF FEBRUARY 14, 1966, FROM THE ASSISTANT SECRETARY FOR ADMINISTRATION, RECOMMENDING THAT OUR OFFICE GIVE CONSIDERATION TO ELIMINATION OF THE REQUIREMENT FOR USE OF STANDARD FORM 1143, AND TO DELETION OF THE OTHER PROVISIONS OF CHAPTER 5200, FROM TITLE 7 OF THE GENERAL ACCOUNTING OFFICE POLICY AND PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES. THE PROVISIONS OF THIS CHAPTER RELATE TO THE REQUIREMENTS AND PROCEDURES FOR THE PROCUREMENT AND PAYMENT OF ADVERTISING BY THE GOVERNMENT, WHICH ARE GOVERNED BY THE PROVISIONS OF 44 U.S.C. 322, 44 U.S.C. 324, AND 5 U.S.C. 22A (3). BASICALLY, THESE STATUTES AUTHORIZE AND REQUIRE THE FOLLOWING:

1. PAYMENT FOR ALL FORMS OF ADVERTISING REQUIRED BY LAW AT A PRICE WHICH, WITH THE USUAL DISCOUNTS, DOES NOT EXCEED THE COMMERCIAL RATES CHARGED TO PRIVATE INDIVIDUALS.

2. A WRITTEN DELEGATION OF AUTHORITY FROM THE AGENCY HEAD TO PERMIT SUBORDINATE OFFICIALS TO PURCHASE ADVERTISING SPACE IN NEWSPAPERS.

3. WRITTEN AUTHORIZATION TO THE PUBLISHER AS A CONDITION PRECEDENT TO PUBLICATION OF NEWSPAPER ADVERTISEMENTS, AND SUBMISSION OF A COPY OF SUCH AUTHORIZATION WITH THE BILL FOR PAYMENT OF SUCH ADVERTISING SERVICE.

THE PROVISIONS OF CHAPTER 5200 OF THE GAO MANUAL ARE DESIGNED TO IMPLEMENT THESE STATUTORY PROVISIONS. THESE INCLUDE 7 GAO 5210.20, REQUIRING THE USE OF STANDARD FORM 1143 IN PLACING ORDERS FOR ADVERTISING AND IN VOUCHERING PAYMENTS FOR ADVERTISING; 7 GAO 5220.10, REQUIRING THAT DELEGATIONS BY AGENCY HEADS OF AUTHORITY TO PROCURE ADVERTISING SPACE IN NEWSPAPERS MUST BE IN THE FORM OF LETTERS OR REGULATIONS; 7 GAO 5220.20, REQUIRING AGENCIES SUBJECT TO CENTRALIZED AUDIT TO SUBMIT TO THE GENERAL ACCOUNTING OFFICE COPIES OF LETTERS OR REGULATIONS DELEGATING AUTHORITY TO ADVERTISE AND AGENCIES SUBJECT TO SITE AUDIT TO RETAIN SUCH DELEGATIONS IN THEIR OWN RECORDS; 7 GAO 5220.40, REQUIRING THAT REFERENCE BE MADE TO THE DELEGATION OF AUTHORITY ON EACH STANDARD FORM 1143 AND PRESCRIBING THE PERSONS REQUIRED TO SIGN SUCH FORM; AND 7 GAO 5230.20, REQUIRING THE SUBMISSION OF COPIES OF NEWSPAPERS, OR OF AFFIDAVITS, AS PROOF OF PUBLICATION.

AS JUSTIFICATION FOR THE REQUESTED ACTION, THE ASSISTANT SECRETARY STATES THE DEPARTMENT'S POSITION THAT THE "PRESENT PROCEDURE FOR PROCURING ADVERTISING IS CONSIDERED UNNECESSARILY COMPLEX FOR THE FOLLOWING REASONS:

"1. AN ADVERTISING ORDER MUST BE PREPARED ON STANDARD FORM 1143. THIS PRECLUDES THE USE OF SMALL PURCHASE PROCEDURES, SUCH AS REGULAR OR FIELD PURCHASE ORDER FORMS, CASH PAYMENT TECHNIQUES, OR BLANKET PURCHASE ARRANGEMENTS. THE PREPARATION AND PROCESSING OF THE SF-1143 IS A MORE COMPLICATED PROCEDURE THAN ARE THESE SMALL PURCHASE PROCEDURES.

"2. THE PUBLISHER IS REQUIRED TO COMPLETE A GOVERNMENT VOUCHER FORM (SF- 1143 REVERSE). HE MUST SHOW THE NAME OF THE TYPE, NUMBER OF LINES, PRICE PER LINE, SUBSEQUENT INSERTIONS, AND MUST EVEN ATTACH A CLIPPING OF THE ADVERTISEMENT TO EACH COPY OF THE SF-1143. IT IS NO LONGER CUSTOMARY IN THE TRADE TO FURNISH SUCH DETAILED INVOICES. MANY FIRMS USE AUTOMATED BILLING PROCEDURES NOT ADAPTABLE TO THE USE OF THE SF-1143. ADVERTISING RATES ARE REGULARLY PUBLISHED IN DAILY ISSUES OF MOST NEWSPAPERS. THE USE OF REGULAR BILLING PROCEDURES OF THE FIRM SHOULD BE ADEQUATE FOR PAYMENT AND AUDIT PURPOSES.

"3. THE ASSIGNMENT OF THE ADMINISTRATIVE DUTIES OF ORDERING ADVERTISING TO SUBORDINATES BY NAME OR POSITION (SEE 7 GAO 5220.10) IS BURDENSOME, LITTLE MORE THAN WORDS, AND ACTUALLY SERVES NO USEFUL PURPOSE. ACTUAL PLACING OF ORDERS IS, AND MUST BE, ACCOMPLISHED BY SUCH SUBORDINATES IN ANY CASE. THERE IS NO DANGER OF UNWARRANTED USURPATION OF POWER BY SUCH OFFICIALS IF THE AUTHORITY TO PURCHASE ADVERTISING IS REDELEGATED TO THEM THE SAME WAY AS GENERAL PROCUREMENT AUTHORITY IS REDELEGATED TO THEM.'

IN ADDITION, THE LEGISLATIVE HISTORY OF 44 U.S.C. 324 IS RECITED FOR THE PURPOSE OF ILLUSTRATING THAT IT HAS OUTLIVED THE REASON FOR ITS ENACTMENT IN 1870, WHICH IS STATED TO HAVE BEEN TO PREVENT DISTRICT OF COLUMBIA NEWSPAPERS FROM REPUBLISHING AND COLLECTING FEES FOR ADVERTISEMENTS APPEARING IN DISTANT NEWSPAPERS. IT IS ALSO STATED THAT THERE IS NO REASON FOR SINGLING OUT NEWSPAPERS FOR "SPECIAL SCRUTINY BY WAY OF SPECIAL ORDERING AND VOUCHERING PROCEDURES," SINCE NEWSPAPER PUBLISHERS OPERATE BY THE SAME STANDARDS OF INTEGRITY AS DO OTHER BUSINESSES. ELIMINATION OF THE USE OF SF 1143 WOULD, ACCORDING TO THE ASSISTANT SECRETARY, RESULT IN A SAVINGS BY YOUR DEPARTMENT OF MORE THAN THREE MAN-YEARS OF TIME ANNUALLY.

WITH REGARD TO THE REQUIREMENTS OF 7 GAO 5220.10, WHICH ARE INTENDED TO IMPLEMENT 44 U.S.C. 324 AND 5 U.S.C. 22A (3) WITH RESPECT TO THE AUTHORITY TO ADVERTISE, THE BELIEF IS STATED THAT THE SECRETARY OF AGRICULTURE IS EXEMPT THEREFROM. THE BASIS OF THIS BELIEF IS SECTION 4 (A) OF REORGANIZATION PLAN NO. 2 OF 1953, 67 STAT. 633, 5 U.S.C. 133Z-15 NOTE, WHICH GIVES THE SECRETARY OF AGRICULTURE GENERAL AUTHORITY TO DELEGATE HIS FUNCTIONS TO SUBORDINATE EMPLOYEES OF THE DEPARTMENT. CITED IN SUPPORT OF THIS POSITION ARE SEVERAL COMPTROLLER GENERAL DECISIONS INTERPRETING SIMILAR PROVISIONS, AND A HOUSE OF REPRESENTATIVES COMMITTEE REPORT ON A REORGANIZATION PLAN FOR THE DEPARTMENT OF COMMERCE WHICH CONTAINS IDENTICAL PROVISIONS.

WE HAVE, ON AT LEAST TWO PREVIOUS OCCASIONS, CONSIDERED THE FOREGOING STATUTORY PROVISIONS GOVERNING THE PROCUREMENT AND PAYMENT OF ADVERTISING BY THE GOVERNMENT. OUR CONSIDERATION OF THESE STATUTES WAS IN CONNECTION WITH PROPOSED LEGISLATION TO REPEAL THEM. IN COMMENTING ON SUCH LEGISLATION, SPECIFICALLY H.R. 11935, 87TH CONGRESS, WE HAVE INDICATED THAT OUR OFFICE WOULD INTERPOSE NO OBJECTION TO THE REPEAL OF SUCH PROVISIONS. WE HAVE ALSO RECOGNIZED THE FACT THAT IN THE EVENT OF REPEAL OF THESE PROVISIONS CERTAIN OF OUR REGULATIONS COULD BE RESCINDED OR REVISED, CONSISTENT WITH BASIC ACCOUNTING AND AUDITING PRINCIPLES. THE REPEAL OF THESE STATUTORY PROVISIONS IS OF COURSE A MATTER OF CONGRESSIONAL POLICY, AND CONGRESS HAS NOT SEEN FIT TO ENACT SUCH REPEALING LEGISLATION. IN VIEW THEREOF, AND SINCE OUR REGULATIONS ARE IMPLEMENTATIONS OF THESE STATUTES, WE DO NOT BELIEVE THERE IS JUSTIFICATION FOR RECISSION OR MODIFICATION OF SUCH REGULATIONS.

HOWEVER, WE BELIEVE THE CONTENTIONS OF THE ASSISTANT SECRETARY WITH RESPECT TO YOU BEING EXEMPT FROM THE PROVISIONS OF 7 GAO 5220.10 ARE VALID INSOFAR AS THE PROHIBITION AGAINST REDELEGATION OF AUTHORITY TO ADVERTISE IS CONCERNED. THIS SECTION IMPLEMENTS THE AUTHORITY GRANTED BY 5 U.S.C. 22A (3) TO THE HEADS OF DEPARTMENTS TO DELEGATE TO SUBORDINATE OFFICIALS THE FUNCTION OF AUTHORIZING PUBLICATION OF ADVERTISEMENTS, NOTICES OR PROPOSALS, AND SPECIFIES THE MEANS BY WHICH SUCH DELEGATIONS SHALL BE MADE. IT ALSO PROHIBITS REDELEGATION BY SUBORDINATE OFFICIALS OF THE AUTHORITY SO DELEGATED, "UNLESS OTHERWISE AUTHORIZED BY LAW.' WE HAVE RECOGNIZED IN THE DECISIONS CITED IN THE ASSISTANT SECRETARY'S LETTER (29 COMP. GEN. 519; 30 ID. 366; 33 ID. 359; AND 35 ID. 703) THAT FUNCTIONS VESTED SOLELY IN THE HEADS OF DEPARTMENTS OR VESTED IN THE HEADS OF DEPARTMENTS WITH AUTHORITY TO DELEGATE SUCH FUNCTIONS TO SUBORDINATES, MAY PROPERLY BE REDELEGATED BY THE SUBORDINATES WHERE AUTHORIZED BY THE HEAD OF THE DEPARTMENT PURSUANT TO VARIOUS REORGANIZATION PLANS CONTAINING PROVISIONS SIMILAR TO, OR IDENTICAL WITH, THE PLAN CITED. WE THEREFORE AGREE THAT YOU MAY PROPERLY DELEGATE THE FUNCTION OF AUTHORIZING PUBLICATIONS, AND GRANT AUTHORITY TO REDELEGATE SUCH FUNCTION, BY APPROPRIATE REGULATIONS, ORDERS OR MEMORANDA. IN THIS CONNECTION, SEE 30 COMP. GEN. 366.

IT IS THEREFOR OUR CONCLUSION THAT CHAPTER 5200 OF TITLE 7 OF THE GAO MANUAL MUST BE CONSIDERED A PROPER AND NECESSARY IMPLEMENTATION OF EXISTING LAWS AND, EXCEPT TO THE EXTENT INDICATED IN THE FOREGOING PARAGRAPH, IS FULLY APPLICABLE TO THE DEPARTMENT OF AGRICULTURE.