B-160052, JAN. 22, 1969

B-160052: Jan 22, 1969

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THE AMOUNT WAS BILLED TO THE PUBLIC HEALTH SERVICE. THE CLAIM CANNOT BE SETTLED BY THE GENERAL ACCOUNTING OFFICE SINCE THE ADVERTISEMENT WAS PLACED WITHOUT PRIOR AUTHORIZATION IN VIOLATION OF SECTION 3828. THE BUREAU WAS FACED WITH AN UNANTICIPATED NURSE ANESTHETIST VACANCY ON THE DANANG TEAM. THE DECISION WAS MADE TO PLACE AN ADVERTISEMENT IN THE -AMERICAN JOURNAL OF NURSING. THE ORDER WAS PLACED BY TELEPHONE IN ADVANCE OF NECESSARY AUTHORIZATION. WHILE THIS WAS IN ERROR IT IS REPORTED THAT IT WAS DONE IN GOOD FAITH AND A REQUISITION CONFIRMING THE ORDER WAS PREPARED BY THE BUREAU ON JUNE 30. IT IS CLEAR THAT SUCH AUTHORIZATION MUST BE ISSUED PRIOR TO PUBLICATION AND THAT THE SUBSEQUENT RATIFICATION OF THE PROCUREMENT ACTION DOES NOT COMPLY WITH THE TERMS OF THE STATUTE.

B-160052, JAN. 22, 1969

TO THE CONGRESS OF THE UNITED STATES:

PURSUANT TO THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236, WE MAKE THE FOLLOWING REPORT AND RECOMMENDATION ON THE CLAIM OF THE AMERICAN JOURNAL OF NURSING FOR $238.50. THE AMOUNT WAS BILLED TO THE PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, BY THE CLAIMANT COMPANY FOR THE COST OF AN ADVERTISEMENT PLACED IN ITS MAGAZINE, THE AMERICAN JOURNAL OF NURSING, AUGUST 1966 ISSUE. THE CLAIM CANNOT BE SETTLED BY THE GENERAL ACCOUNTING OFFICE SINCE THE ADVERTISEMENT WAS PLACED WITHOUT PRIOR AUTHORIZATION IN VIOLATION OF SECTION 3828, REVISED STATUTES, 44 U.S.C. 324, WHICH READS 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.' IT HAS BEEN ADMINISTRATIVELY REPORTED THAT--- "THE BUREAU OF MEDICAL SERVICES OF THE PUBLIC HEALTH SERVICE, BY AGREEMENT WITH THE AGENCY FOR INTERNATIONL DEVELOPMENT, OPERATES TWO SURGICAL TEAMS IN SOUTH VIETNAM - IN DANANG AND NHATRANG. THESE TEAMS PROVIDE SURGICAL CARE FOR THE VIETNAMESE CIVILIAN POPULATION - PRIMARILY WAR CASUALTIES. JUNE, THE BUREAU WAS FACED WITH AN UNANTICIPATED NURSE ANESTHETIST VACANCY ON THE DANANG TEAM. THE BEST SOURCE OF RECRUITMENT FOR TEAM POSITIONS HAS BEEN THROUGH PROFESSIONAL JOURNALS; AND THE DECISION WAS MADE TO PLACE AN ADVERTISEMENT IN THE -AMERICAN JOURNAL OF NURSING,- AS HAD BEEN DONE PREVIOUSLY.'

TO EXPEDITE THE ADVERTISEMENT, AND ASSURE ITS APPEARANCE IN THE AUGUST ISSUE OF THE JOURNAL, THE ORDER WAS PLACED BY TELEPHONE IN ADVANCE OF NECESSARY AUTHORIZATION. WHILE THIS WAS IN ERROR IT IS REPORTED THAT IT WAS DONE IN GOOD FAITH AND A REQUISITION CONFIRMING THE ORDER WAS PREPARED BY THE BUREAU ON JUNE 30, 1966, AND APPROVED BY PROPER AUTHORITY ON AUGUST 5, 1966.

SINCE UNDER THE PROVISIONS OF 44 U.S.C. 324 AN ADVERTISEMENT IN ANY NEWSPAPER WHATEVER MAY BE PUBLISHED ONLY PURSUANT TO A WRITTEN AUTHORIZATION, IT IS CLEAR THAT SUCH AUTHORIZATION MUST BE ISSUED PRIOR TO PUBLICATION AND THAT THE SUBSEQUENT RATIFICATION OF THE PROCUREMENT ACTION DOES NOT COMPLY WITH THE TERMS OF THE STATUTE. THE STATUTE HAS LONG BEEN CONSTRUED TO INCLUDE PERIODIC PUBLICATIONS CONTAINING GENERAL AND CURRENT NEWS SUCH AS THE AMERICAN JOURNAL OF NURSING. CONSEQUENTLY, THE PAYMENT OF THE SUBJECT INVOICE IS PROHIBITED UNDER EXISTING LAW.

ORDINARILY, WE DO NOT REPORT TO THE CONGRESS UNDER THE ACT OF APRIL 10, 1928, CLAIMS WHICH CANNOT BE PAID BY REASON OF A PROHIBITORY STATUTE. THE INSTANT CASE, HOWEVER, THE PROVISIONS OF 44 U.S.C. 324 DO NOT ACTUALLY PROHIBIT ADVERTISING IN NEWSPAPERS, BUT, INSTEAD, PROHIBIT PAYMENT THEREFOR UNLESS WRITTEN AUTHORITY FOR SUCH ADVERTISING IS ISSUED IN ADVANCE. IN OTHER WORDS, THE PRIMARY PURPOSE OF THE STATUTE APPEARS TO BE TO PRESCRIBE THE CONTRACTING PROCEDURE TO BE FOLLOWED BEFORE A CONTRACT FOR ADVERTISING MAY BE AWARDED RATHER THAN TO PROHIBIT THE MAKING OF SUCH CONTRACT.

ACCORDINGLY, WE BELIEVE THAT THE EXIGENCIES OF THE VIETNAM SITUATION, THE URGENCY OF THE RECRUITMENT NEED, AND THE FACT THAT THE SERVICES WERE ORDERED AND RENDERED IN GOOD FAITH, CONSTITUTE SUCH ELEMENTS OF EQUITY AS TO WARRANT FAVORABLE CONSIDERATION OF THE CLAIM BY THE CONGRESS AND WE RECOMMEND, THEREFORE, THAT PAYMENT OF THE CLAIM BE AUTHORIZED.

WE ARE ADVISED THAT THE AMOUNT BILLED DOES NOT EXCEED THE COMMERCIAL RATES CHARGED TO PRIVATE INDIVIDUALS, WITH THE USUAL DISCOUNTS, AS REQUIRED BY LAW (44 U.S.C. 322).

IF THE CONGRESS AGREES WITH OUR RECOMMENDATION IN THIS MATTER, IT IS SUGGESTED THAT ENACTMENT OF A STATUTE IN SUBSTANTIALLY THE FOLLOWING FORM WILL ACCOMPLISH THE DESIRED PURPOSE:

"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT THE COMPTROLLER GENERAL OF THE UNITED STATES BE, AND HE HEREBY IS, AUTHORIZED AND DIRECTED TO SETTLE AND ADJUST THE CLAIM OF THE AMERICAN JOURNAL OF NURSING, NEW YORK, NEW YORK, FOR AN ADVERTISMENT PLACED IN ITS AUGUST 1966 ISSUE OF THE AMERICAN JOURNAL OF NURSING BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, AND TO ALLOW IN FULL AND FINAL SETTLEMENT OF SUCH CLAIM THE SUM OF $238.50. SUCH AMOUNT SHALL BE PAYABLE FROM THE APPROPRIATION -HOSPITALS AND MEDICAL CARE, PUBLIC HEALTH SERVICE, 1967.-"

THE MATTER PREVIOUSLY WAS REPORTED FOR THE CONSIDERATION OF THE CONGRESS BY OUR LETTER OF NOVEMBER 15, 1966, B-160052. PURSUANT TO OUR RECOMMENDATION CONTAINED THEREIN, A BILL, H.R. 2653, CONTAINING THE LANGUAGE SUGGESTED ABOVE, WAS INTRODUCED IN THE HOUSE OF REPRESENTATIVES AND WAS APPROVED BY THAT BODY ON MARCH 21, 1967. THE SENATE, HOWEVER, FAILED TO ACT ON THE CLAIM BEFORE THE SECOND SESSION OF THE 90TH CONGRESS TERMINATED.

SINCE, AS INDICATED ABOVE, WE ARE STILL OF THE VIEW THAT THE CLAIM OF THE AMERICAN JOURNAL OF NURSING IS MERITORIOUS AND DESERVING OF FAVORABLE ACTION, IT IS NOW PRESENTED FOR CONSIDERATION BY THE NEW 91ST CONGRESS.