B-17617, AUGUST 6, 1941, 21 COMP. GEN. 105

B-17617, AUGUST 6, 1941, 21 COMP. GEN. 105

ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS - ADVERTISING FOR BIDS AND GENERAL SCHEDULE OF SUPPLIES SINCE NEITHER THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS NOR THE COURTS FOR WHICH IT SERVES AS THE ADMINISTRATIVE AGENCY ARE IN THE EXECUTIVE BRANCH OF THE GOVERNMENT THE GENERAL SUPPLY SCHEDULE CONTRACTS HAVE NO MANDATORY APPLICATION TO THEIR RESPECTIVE REQUIREMENTS FOR SUPPLIES, BUT SUCH SUPPLIES SHOULD BE SO OBTAINED IN THE INTEREST OF ECONOMY AND GOOD ADMINISTRATION, PROVIDED THE CONTRACTORS WILL ACCEPT ORDERS THEREFOR. THE ADVERTISING FOR BIDS REQUIREMENTS OF SECTION 3709, REVISED STATUTES, ARE APPLICABLE TO ALL PURCHASES IN EXCESS OF $50--- THE APPLICABLE STATUTORY OPEN-MARKET PURCHASE LIMITATION--- MADE UNDER APPROPRIATIONS FOR ANY OF THE COURTS FOR WHICH THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS SERVES AS ADMINISTRATIVE AGENCY.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE U.S. COURTS, AUGUST 6, 1941:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF JUNE 4, 1941, AS FOLLOWS:

ATTACHED ARE COPIES OF A LETTER WITH ENCLOSURES RECEIVED FROM MR. WILLARD L. HART, CHIEF CLERK OF THE UNITED STATES COURT OF CLAIMS, RAISING CERTAIN QUESTIONS WITH REFERENCE TO THE APPLICABILITY OF THE PROVISIONS OF SECTION 3709 OF THE UNITED STATES REVISED STATUTES AND THE CONTRACTS EXECUTED BY THE PROCUREMENT DIVISION OF THE TREASURY DEPARTMENT, TO PURCHASES FROM THE APPROPRIATION AVAILABLE TO THAT COURT.

WE WOULD APPRECIATE RECEIVING YOUR VIEWS ON THE QUESTIONS RAISED BY MR. HART, NOT ONLY AS THEY AFFECT THE COURT OF CLAIMS APPROPRIATION, BUT ALSO THE OTHER APPROPRIATIONS MADE TO THE JUDICIARY WHICH ARE ADMINISTERED BY THIS OFFICE.

THE ACT OF OCTOBER 10, 1940, PUBLIC NO. 842, 76TH CONGRESS," TO CONSOLIDATE CERTAIN EXCEPTIONS TO SECTION 3709 OF THE REVISED STATUTES AND TO IMPROVE THE UNITED STATES CODE," PROVIDES THAT SECTION 3709 SHALL NOT BE CONSTRUED TO APPLY TO ANY PURCHASE OR SERVICES AUTHORIZED BY ANY APPROPRIATION ACT FOR THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS WHERE THE AGGREGATE AMOUNT INVOLVED DOES NOT EXCEED THE AMOUNT OF $50.00. THIS IS IN KEEPING WITH THE LANGUAGE OF THE APPROPRIATION " MISCELLANEOUS EXPENSES, ADMINISTRATIVE OFFICE OF THE U.S. COURTS" FOR THE FISCAL YEAR 1941 AND OF THE BILL FOR THE FISCAL YEAR 1942 AS IT NOW STANDS. HOWEVER, IT DOES NOT APPEAR TO BE CLEAR WHETHER THIS ACT APPLIES ONLY TO THE APPROPRIATIONS FOR THE OPERATION OF THIS OFFICE OR TO EXPENDITURES MADE BY THIS OFFICE FOR THE FEDERAL COURTS AS WELL.

SPECIFICALLY THE QUESTIONS FOR DETERMINATION ARE:

1. DO THE CONTRACTS EXECUTED BY THE PROCUREMENT DIVISION OF THE TREASURY DEPARTMENT COVER THE REQUIREMENTS OF THE COURT OF CLAIMS, OTHER UNITED STATES COURTS OR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS?

2. ARE THE PROVISIONS OF SECTION 3709 R.S. APPLICABLE TO PURCHASES MADE FROM APPROPRIATIONS FOR THE COURT OF CLAIMS OR OTHER UNITED STATES COURTS?

3. IF YOUR ANSWER TO THE SECOND QUESTION IS IN THE AFFIRMATIVE, WHAT, IF ANY EXEMPTIONS FROM THE PROVISIONS OF SEC. 3709 R.S. ARE APPLICABLE TO EXPENDITURES MADE BY THE COURT OF CLAIMS OR OTHER UNITED STATES COURTS, OR BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS FROM COURT APPROPRIATIONS?

THE LETTER DATED MAY 5, 1941, FROM THE CHIEF CLERK OF THE COURT OF CLAIMS, IS IN PERTINENT PART AS FOLLOWS:

I DESIRE TO PROPOUND A QUESTION IN REFERENCE TO THE EXPENDITURES UNDER THE APPROPRIATION," CONTINGENT EXPENSES, COURT OF CLAIMS," AND RESPECTFULLY REQUEST THAT YOU OBTAIN AN OFFICIAL RULING THEREON FROM THE COMPTROLLER GENERAL, IN ORDER THAT I MAY BE GUIDED IN FUTURE PURCHASES OF SUPPLIES, ETC., FOR THE COURT OF CLAIMS.

SECTION 142 OF THE JUDICIAL CODE ( U.S.C. 247) PROVIDES AS FOLLOWS:

"THE SAID CLERK SHALL HAVE AUTHORITY WHEN HE HAS GIVEN BOND AS PROVIDED IN THE PRECEDING SECTION, TO DISBURSE, UNDER THE DIRECTION OF THE COURT, THE CONTINGENT FUND WHICH MAY FROM TIME TO TIME BE APPROPRIATED FOR ITS USE; AND HIS ACCOUNTS SHALL BE SETTLED BY THE GENERAL ACCOUNTING OFFICE IN THE SAME WAY AS THE ACCOUNTS OF OTHER DISBURSING AGENTS OF THE GOVERNMENT ARE SETTLED.'

IT APPEARS TO THE UNDERSIGNED THAT, CONSTRUING THIS SECTION ALONE, THERE WOULD BE NO LIMITATION WHATSOEVER IN REFERENCE TO THE AMOUNT WHICH CAN BE EXPENDED WITHOUT THE NECESSITY OF OBTAINING BIDS IN THE OPEN MARKET, NOR IS THERE ANY REQUIREMENT CONCERNING THE MAKING OF PURCHASES FROM THE GENERAL SUPPLY SCHEDULE. THE ONLY REQUIREMENT OF THIS SECTION IS THAT THE DISBURSEMENT OF THIS FUND IS UNDER THE DIRECTION OF THE COURT.

PRIOR TO THE ACT OF AUGUST 7, 1939, CREATING THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, MOST OF THE FUNDS APPROPRIATED FOR THE UNITED STATES COURTS WERE ADMINISTERED BY THE DEPARTMENT OF JUSTICE AND THERE WAS PLACED A LIMITATION OF $25.00 ON ALL PURCHASES WITHOUT THE NECESSITY OF OBTAINING BIDS IN THE OPEN MARKET OR PURCHASING ARTICLES FROM THE GENERAL SUPPLY SCHEDULE.

IN A DECISION OF COMPTROLLER WARWICK TO THE ATTORNEY GENERAL DATED JULY 29, 1920, THE QUESTION PERTAINING TO THE LEGISLATIVE, EXECUTIVE AND JUDICIAL APPROPRIATION ACT FOR THE FISCAL YEAR 1921 WHICH PROVIDED THAT SECTION 3709 OF THE REVISED STATUTES SHALL NOT BE CONSTRUED TO APPLY TO ANY PURCHASE OR SERVICE RENDERED FOR THE DEPARTMENT OF JUSTICE WHEN THE AGGREGATE AMOUNT INVOLVED DOES NOT EXCEED THE SUM OF $25.00. A DECISION WAS REQUESTED AS TO WHETHER THE PROVISIONS OF THE LAW, ABOVE STATED, WERE APPLICABLE TO THE PURCHASE OF ARTICLES AUTHORIZED BY THE DEPARTMENT OF JUSTICE FOR USE IN THE OFFICES OF OFFICIALS OF UNITED STATES COURTS. THE DECISION HELD AS FOLLOWS:

"GENERAL LAWS AND ANNUAL APPROPRIATION ACTS DISTINGUISH BETWEEN THE DEPARTMENT OF JUSTICE, WHICH IS PART OF THE EXECUTIVE BRANCH OF THE GOVERNMENT, AND UNITED STATES COURTS AND THEIR OFFICERS BELONGING TO THE JUDICIAL BRANCH. HOWEVER, IN THE MATTER OF ADMINISTRATION OF THEIR APPROPRIATIONS AND GENERAL SUPERVISION OF THEIR EXPENDITURES, AND FOR THE PURPOSES OF ADMINISTRATIVE ACCOUNTING, THE COURTS AND THEIR OFFICERS ARE PLACED UNDER THE DEPARTMENT OF JUSTICE.

"A PURCHASE MADE OR SERVICE RENDERED FOR AN OFFICIAL OF A UNITED STATES COURT MAY FAIRLY BE SAID TO BE A PURCHASE OR SERVICE FOR THE DEPARTMENT OF JUSTICE, AND I THINK THAT THE STATUTE WAS INTENDED TO BE SO CONSTRUED. YOU ARE ACCORDINGLY ADVISED THAT IT IS APPLICABLE TO PURCHASES MADE FOR COURT OFFICIALS OF ARTICLES AUTHORIZED BY THE DEPARTMENT OF JUSTICE UNDER ANY APPROPRIATION ADMINISTERED BY THE DEPARTMENT OF JUSTICE.'

MY PREDECESSOR IN OFFICE, J. BRADLEY TANNER, ON JULY 12, 1926, RECEIVED A LETTER FROM LURTIN R. GINN, ASSISTANT COMPTROLLER GENERAL OF THE UNITED STATES, WHEREIN HE STATED THAT, IN CONNECTION WITH SUSPENSIONS IN MR. TANNER'S ACCOUNTS, INFORMATION WAS REQUESTED CONCERNING THE APPLICATION OF SECTION 3709 OF THE REVISED STATUTES. IT WILL BE NOTED THAT MR. GINN DID NOT GIVE A FORMAL DECISION BUT EXPRESSED MERELY HIS OWN VIEWS. HE HELD, IN SUBSTANCE, THAT HE WAS SATISFIED IN HIS OWN MIND THAT THE COURT OF CLAIMS CONTINGENT APPROPRIATION IS NOT RESTRICTED BY THE PROVISIONS OF SECTION 3709 R.S. IN A LETTER OF THE SAME DATE, JULY 12, 1926, TO THE ACTING CHIEF OF THE CIVIL DIVISION OF THE DEPARTMENT OF JUSTICE ( GENERAL ACCOUNTING OFFICE), MR. GINN HELD THAT THE APPROPRIATION FOR CONTINGENT EXPENSES, COURT OF CLAIMS, IS NOT ADMINISTERED BY THE DEPARTMENT OF JUSTICE AND IN VIEW OF SECTION 142 OF THE JUDICIAL CODE HE DID NOT SEE HOW SECTION 3709 R.S. COULD HAVE ANY APPLICATION TO THE PURCHASE OF SUPPLIES AND SERVICES AND ALSO INASMUCH AS SECTION 3709 REFERS TO DEPARTMENTS. FOR YOUR INFORMATION I AM ENCLOSING HEREWITHA COPY OF MR. GINN'S LETTER TO THE ACTING CHIEF OF THE CIVIL DIVISION, ATTACHING IT AS EXHIBIT 1.

THIS OFFICE ON AUGUST 20, 1937, ADDRESSED A LETTER TO THE PROCUREMENT DIVISION OF THE TREASURY DEPARTMENT SEEKING A CLEARANCE FOR THE PURCHASE OF A RUG FOR ONE OF THE JUSTICE'S CHAMBERS. THE PARTICULAR RUG DESIRED WAS ONE WHICH WAS NOT ON THE SCHEDULE AND THERE WERE NO RUGS APPROXIMATELY MEETING THE SPECIFICATIONS REQUIRED FOR THE DESIRED RUG. ON SEPTEMBER 2, 1937, THE ACTING ASSISTANT DIRECTOR OF THE PROCUREMENT DIVISION, HONORABLE ROBERT LEFEVRE, ADDRESSED A LETTER TO THE UNDERSIGNED RELATIVE TO THE CLEARANCE REQUESTED AND I QUOTE THE SECOND PARAGRAPH OF MR. LEFEVRE'S LETTER:

"IT IS THE OPINION OF THIS OFFICE THAT THE CONTRACTS FOR SUPPLIES ENTERED INTO BY THE PROCUREMENT DIVISION DO NOT COVER THE REQUIREMENTS OF THE COURT OF CLAIMS, INASMUCH AS THE AUTHORITY FOR THE MAKING OF SUCH CONTRACTS RELATES TO THE EXECUTIVE BRANCH OF THE GOVERNMENT Y.'

IT WAS, THEREFORE, UNNECESSARY TO OBTAIN A CLEARANCE FOR THE PURCHASE OF THE JUSTICE'S RUG.

IT IS NEEDLESS FOR ME TO ADVISE YOU THAT THERE IS NO INTENTION ON MY PART TO TAKE AN ARBITRARY STAND RELATIVE TO THE SUBJECT MATTER OF THIS LETTER, AND, ON THE CONTRARY, IT HAS BEEN AND IS THE CUSTOM OF THIS OFFICE IN ALL OF ITS PURCHASES OF SUPPLIES OR SERVICES IN EXCESS OF $25.00 TO PURCHASE FROM THE GENERAL SUPPLY SCHEDULE OR TO INVITE BIDS AND TO MAKE AWARDS TO THE LOWEST RESPONSIBLE BIDDER, AND IN GOOD FAITH TO ENDEAVOR TO COOPERATE WITH AND COMPLY WITH THE RULES AND REGULATIONS OF THE GENERAL ACCOUNTING OFFICE AND OF YOUR OFFICE. * * *

AS INDICATED IN THE CHIEF CLERK'S LETTER, UNDER THE SYSTEM OF ADMINISTRATION OF THE UNITED STATES COURTS IN OPERATION PRIOR TO THE EFFECTIVE DATE OF THE ACT OF AUGUST 7, 1939, 53 STAT. 1223, CREATING THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, THE APPROPRIATIONS FOR THE COURTS, WITH FEW EXCEPTIONS, WERE ADMINISTERED BY THE DEPARTMENT OF JUSTICE--- ONE OF SUCH EXCEPTIONS BEING THE APPROPRIATION FOR CONTINGENT EXPENSES OF THE COURT OF CLAIMS, WHICH WAS DISBURSED BY THE CHIEF CLERK OF THE COURT UNDER THE DIRECTION OF THE COURT, PURSUANT TO SECTION 142 OF THE JUDICIAL CODE, 28 U.S.C. 247. THE ANSWERS TO THE QUESTIONS PRESENTED IN YOUR LETTER DEPEND LARGELY UPON THE CHANGES IN SUCH PREEXISTING SYSTEM OF ADMINISTRATION WROUGHT BY THE SAID ACT OF AUGUST 7, 1939.

THE ACT PROVIDES, IN PART:

THAT THE JUDICIAL CODE IS HEREBY AMENDED BY ADDING AT THE END THEREOF A NEW CHAPTER TO BE NUMBERED XV AND ENTITLED " THE ADMINISTRATION OF THE UNITED STATES COURTS," AS FOLLOWS:

" CHAPTER XV--- THE ADMINISTRATION OF THE UNITED STATES COURTS---

"SEC. 302. THERE SHALL BE AT THE SEAT OF GOVERNMENT AN ESTABLISHMENT TO BE KNOWN AS THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, WITH A DIRECTOR AT THE HEAD THEREOF WHO SHALL BE APPOINTED BY THE SUPREME COURT OF THE UNITED STATES AND HOLD OFFICE AT THE PLEASURE OF AND BE SUBJECT TO REMOVAL BY THE AFORESAID COURT. * * *

"SEC. 304. THE DIRECTOR SHALL BE THE ADMINISTRATIVE OFFICER OF THE UNITED STATES COURTS AND SHALL HAVE CHARGE, UNDER THE SUPERVISION AND DIRECTION OF THE CONFERENCE OF SENIOR CIRCUIT JUDGES, OF---

"/1) ALL ADMINISTRATIVE MATTERS RELATING TO THE OFFICES OF THE CLERKS AND OTHER CLERICAL AND ADMINISTRATIVE PERSONNEL OF THE COURTS, BUT NOTHING CONTAINED IN THIS CHAPTER SHALL BE CONSTRUED AS AFFECTING THE AUTHORITY OF THE COURTS TO APPOINT THEIR ADMINISTRATIVE OR CLERICAL PERSONNEL, OR THE AUTHORITY OF THE ATTORNEY GENERAL RESPECTING UNITED STATES MARSHALS AND THEIR DEPUTIES, UNITED STATES ATTORNEYS AND THEIR ASSISTANTS;

"/3) THE DISBURSEMENT, DIRECTLY AND THROUGH THE SEVERAL UNITED STATES MARSHALS AS NOW PROVIDED BY LAW, OF THE MONEYS APPROPRIATED FOR THE MAINTENANCE, SUPPORT, AND OPERATION OF THE COURTS;

"/4) THE PURCHASE, EXCHANGE, TRANSFER, AND DISTRIBUTION OF EQUIPMENT AND SUPPLIES;

"/5) THE EXAMINATION AND AUDIT OF VOUCHERS AND ACCOUNTS OF THE OFFICIALS AND EMPLOYEES COVERED BY THIS CHAPTER;

"/6) THE PROVIDING OF ACCOMMODATIONS FOR THE USE OF THE COURTS AND THE VARIOUS OFFICIALS AND EMPLOYEES COVERED BY THIS CHAPTER; AND

"/7) SUCH OTHER MATTERS AS MAY BE ASSIGNED TO HIM BY THE SUPREME COURT AND THE CONFERENCE OF THE SENIOR CIRCUIT JUDGES. * * *

"SEC. 308. THE PROVISIONS OF THIS CHAPTER SHALL APPLY TO THE SEVERAL UNITED STATES CIRCUIT COURTS OF APPEALS, THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, THE SEVERAL DISTRICT COURTS OF THE UNITED STATES IN THE CONTINENTAL UNITED STATES, THE COURT OF CLAIMS, THE UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS, THE UNITED STATES CUSTOMS COURT, THE DISTRICT COURT FOR THE DISTRICT OF ALASKA, THE DISTRICT COURT FOR THE DISTRICT OF HAWAII, THE DISTRICT COURT OF THE UNITED STATES FOR PUERTO RICO, THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE CANAL ZONE, THE DISTRICT COURT OF THE VIRGIN ISLANDS, AND THE UNITED STATES COURT FOR CHINA. THE TERM "COURTS" AS USED IN THIS CHAPTER MEANS THE COURTS SPECIFIED IN THIS SECTION. THE TERM ,CONTINENTAL UNITED STATES" AS USED IN THIS CHAPTER MEANS THE STATES OF THE UNION AND THE DISTRICT OF COLUMBIA. * * *"

SEC. 4. ALL UNEXPENDED APPROPRIATIONS FOR THE SUPPORT, MAINTENANCE, AND OPERATION OF THE COURTS SPECIFIED IN SECTION 306 OF THE JUDICIAL CODE FOR THE CURRENT FISCAL YEAR, AND ALL UNEXPENDED APPROPRIATIONS COVERING JUDICIAL PERSONNEL AS SPECIFIED IN SECTION 304 (1) OF THE JUDICIAL CODE, INCLUDING APPROPRIATIONS FOR THE SALARIES OF JUSTICES AND JUDGES WHO HAVE RETIRED OR WHO HAVE RESIGNED UNDER THE PROVISIONS OF SECTION 260 OF THE JUDICIAL CODE ( U.S.C., TITLE 28, SEC. 375), ARE HEREBY TRANSFERRED TO THE CONTROL OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS. SEC. 5. ALL POWERS AND DUTIES NOW CONFERRED OR IMPOSED BY LAW UPON THE DEPARTMENT OF JUSTICE OR THE ATTORNEY GENERAL, RELATING TO THE ADMINISTRATIVE AUDIT OF THE ACCOUNTS AND VOUCHERS REFERRED TO IN SECTION 304 OF THE JUDICIAL CODE, ARE HEREBY TRANSFERRED TO AND VESTED IN THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS.

SEC. 6. ALL ADMINISTRATIVE POWERS AND DUTIES NOW CONFERRED OR IMPOSED BY LAW UPON THE DEPARTMENT OF JUSTICE OR THE ATTORNEY GENERAL, RESPECTING CLERKS OF COURTS, DEPUTY CLERKS OF COURTS AND CLERICAL ASSISTANTS, LAW CLERKS, SECRETARIES, AND STENOGRAPHERS TO THE JUDGES, AND LIBRARIANS IN CHARGE OF LIBRARIES OF THE COURTS, AND SUCH OTHER EMPLOYEES OF THE COURTS NOT EXCLUDED BY SECTION 304 OF CHAPTER XV AS HEREINBEFORE SET FORTH, ARE HEREBY VESTED IN THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS.

WITH REFERENCE TO YOUR FIRST QUESTION, AS TO WHETHER THE CONTRACTS EXECUTED BY THE PROCUREMENT DIVISION, TREASURY DEPARTMENT, COVER THE REQUIREMENTS OF THE COURT OF CLAIMS, OTHER UNITED STATES COURTS, OR YOUR OFFICE, I HAVE TO ADVISE THAT THE PROCUREMENT DIVISION IS THE SUCCESSOR TO THE FUNCTIONS FORMERLY EXERCISED BY THE GENERAL SUPPLY COMMITTEE, UNDER THE DIRECTION OF THE SECRETARY OF THE TREASURY, PURSUANT TO THE PROVISIONS OF SECTION 4 OF THE ACT OF JUNE 17, 1910, 36 STAT. 531, AND SECTION 1 OF THE ACT OF FEBRUARY 27, 1929, 45 STAT. 1341, IN THE PROCUREMENT OF SUPPLIES FOR THE EXECUTIVE DEPARTMENTS AND OTHER GOVERNMENT ESTABLISHMENTS IN WASHINGTON, THE MUNICIPAL GOVERNMENT ESTABLISHMENTS IN WASHINGTON, THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, AND CERTAIN FIELD SERVICES. IN CONSTRUING THE PROVISIONS OF THE 1910 ACT, WHICH DEALT SPECIFICALLY WITH THE PROCUREMENT OF SUPPLIES "FOR THE EXECUTIVE DEPARTMENTS AND OTHER GOVERNMENT ESTABLISHMENTS IN WASHINGTON," IT WAS HELD THAT WHILE THE ACT DID NOT REQUIRE FOR THE FIELD SERVICES TO BE PURCHASED IN THE MANNER THEREIN PROVIDED, SUCH SUPPLIES COULD BE PURCHASED UNDER THE CONTRACTS OF THE GENERAL SUPPLY COMMITTEE WITH THE CONSENT OF THE SECRETARY OF THE TREASURY AND OF THE CONTRACTORS; THAT WHERE SUCH CONTRACTS INCLUDED SUPPLIES OF A PARTICULAR FIELD SERVICE THEY WOULD EXCLUDE ANY OTHER MEANS OF PROCUREMENT EXCEPT IN CASE OF PUBLIC EXIGENCY REQUIRING IMMEDIATE DELIVERY; AND THAT PURCHASES BY EXECUTIVE DEPARTMENTS AND OTHER GOVERNMENT ESTABLISHMENTS IN WASHINGTON, D.C., FOR DELIVERY THERE AND LATER SHIPMENT TO THE FIELD WERE WITHIN THE SCOPE OF THE ACT, 18 COMP. DEC. 751; 19 ID. 547; 22 ID. 201; 7 COMP. GEN. 122. IT WAS HELD, ALSO, THAT BY THE TERM "OTHER GOVERNMENT ESTABLISHMENTS IN WASHINGTON," CONGRESS MUST HAVE INTENDED TO INCLUDE ONLY SUCH ESTABLISHMENTS AS ARE SIMILAR IN CHARACTER TO THE EXECUTIVE DEPARTMENTS, THAT IS, OTHER EXECUTIVE ESTABLISHMENTS, AND THAT THE ACT WAS NOT OPERATIVE OUTSIDE OF THE EXECUTIVE BRANCH OF THE GOVERNMENT, 23 COMP. DEC. 599; 5 COMP. GEN. 130.

BY SECTION 1 OF EXECUTIVE ORDER NO. 6166, DATED JUNE 10, 1933, THE GENERAL SUPPLY COMMITTEE WAS ABOLISHED AND THE FUNCTION OF DETERMINATION OF POLICIES AND METHODS OF PROCUREMENT, WAREHOUSING, AND DISTRIBUTION OF PROPERTY, FACILITIES, STRUCTURES, IMPROVEMENTS, MACHINERY, EQUIPMENT, STORES, AND SUPPLIES EXERCISED BY ANY AGENCY WAS TRANSFERRED TO A PROCUREMENT DIVISION IN THE TREASURY DEPARTMENT. SAID DIVISION WAS EMPOWERED, WITH THE APPROVAL OF THE PRESIDENT, TO PROVIDE FOR PROCUREMENT, WAREHOUSING, OR DISTRIBUTION FOR ANY AGENCY, BY UNDERTAKING SUCH FUNCTIONS ITSELF OR BY OTHER METHODS SET FORTH IN THE EXECUTIVE ORDER. HOWEVER, SECTION 16 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1517, PURSUANT TO WHICH SAID EXECUTIVE ORDER WAS ISSUED, AUTHORIZED REORGANIZATIONS ONLY IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, AND SECTION 21 OF THE EXECUTIVE ORDER LIMITED THE TERM "AGENCY," AS THEREIN USED, TO THE EXECUTIVE BRANCH. VIEW THEREOF, THE CONTRACTS OF THE PROCUREMENT DIVISION HAVE NO BROADER APPLICATION THAN DID THOSE OF THE FORMER GENERAL SUPPLY COMMITTEE, INSOFAR AS CONCERNS AGENCIES OUTSIDE OF THE EXECUTIVE BRANCH OF THE GOVERNMENT.

UNDER THE FORMER SYSTEM OF COURT ADMINISTRATION, INVOLVING THE PROCUREMENT OF SUPPLIES AND EQUIPMENT FOR THE COURTS AND COURT OFFICIALS BY REQUISITION UPON THE DEPARTMENT OF JUSTICE AT WASHINGTON, IT WAS HELD THAT THE ITEMS USED IN FILLING SUCH REQUISITIONS SHOULD BE OBTAINED UNDER THE GENERAL SUPPLY CONTRACTS, ON THE THEORY THAT A PURCHASE FOR THE USE OF COURT OFFICIALS WAS A PURCHASE FOR THE DEPARTMENT. SEE 27 COMP. DEC. 712; A-15999, NOVEMBER 20, 1926. BY THE ABOVE-QUOTED PROVISIONS OF SECTION 304 OF THE JUDICIAL CODE, AS AMENDED BY SECTION 1 OF THE ACT OF AUGUST 7, 1939, THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS WAS PLACED IN CHARGE OF THE DISBURSEMENT OF THE MONEYS APPROPRIATED FOR THE MAINTENANCE, SUPPORT, AND OPERATION OF THE COURTS, AND OF THE PURCHASE, EXCHANGE, TRANSFER, AND DISTRIBUTION OF EQUIPMENT AND SUPPLIES. WHILE SAID OFFICE IS SPECIFICALLY DESIGNATED IN SECTION 302 OF THE JUDICIAL CODE, AS AMENDED, AS AN ESTABLISHMENT AT THE SEAT OF GOVERNMENT, IT IS CLEARLY NOT AN ESTABLISHMENT IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, ONE OF THE CHIEF REASONS FOR ITS CREATION HAVING BEEN TO REMOVE THE ADMINISTRATION OF THE COURTS FROM THE CONTROL OF THE EXECUTIVE BRANCH AND TO TURN IT OVER TO THE COURTS THEMSELVES. SEE SENATE REPORT NO. 426, 76TH CONGRESS, ST SESSION, ON BILL S. 188, ENACTED AS THE ACT OF AUGUST 7, 1939.

ACCORDINGLY, AS NEITHER THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS NOR THE COURTS FOR WHICH IT SERVES AS THE ADMINISTRATIVE AGENCY ARE IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, THE CONTRACTS OF THE PROCUREMENT DIVISION HAVE NO MANDATORY APPLICATION TO THEIR RESPECTIVE REQUIREMENTS FOR SUPPLIES. HOWEVER, IT WOULD APPEAR IN THE INTEREST OF ECONOMY AND GOOD ADMINISTRATION TO OBTAIN SUCH SUPPLIES UNDER THE GENERAL SCHEDULE OF SUPPLIES, PROVIDED THE CONTRACTORS WILL ACCEPT ORDERS THEREFOR. 5 COMP. GEN. 130.

AS TO YOUR SECOND AND THIRD QUESTIONS, RELATIVE TO THE APPLICATION OF SECTION 3709, REVISED STATUTES, TO PURCHASES MADE UNDER APPROPRIATIONS FOR THE COURT OF CLAIMS OR OTHER UNITED STATES COURTS--- EITHER BY THE COURTS OR BY YOUR OFFICE--- DIFFERENT CONSIDERATIONS PRESENT THEMSELVES. SAID SECTION, 41 U.S.C. 5, PROVIDES:

* * * EXCEPT AS OTHERWISE PROVIDED BY LAW ALL PURCHASES AND CONTRACTS FOR SUPPLIES OR SERVICES, IN ANY OF THE DEPARTMENTS OF THE GOVERNMENT, AND PURCHASES OF INDIAN SUPPLIES, EXCEPT FOR PERSONAL SERVICES, SHALL BE MADE BY ADVERTISING A SUFFICIENT TIME PREVIOUSLY FOR PROPOSALS RESPECTING THE SAME, WHEN THE PUBLIC EXIGENCIES DO NOT REQUIRE THE IMMEDIATE DELIVERY OF THE ARTICLES, OR PERFORMANCE OF THE SERVICE. WHEN IMMEDIATE DELIVERY OR PERFORMANCE IS REQUIRED BY THE PUBLIC EXIGENCY, THE ARTICLES OR SERVICE REQUIRED MAY BE PROCURED BY OPEN PURCHASE OR CONTRACT AT THE PLACES AND IN THE MANNER IN WHICH SUCH ARTICLES ARE USUALLY BOUGHT AND SOLD, OR SUCH SERVICES ENGAGED, BETWEEN INDIVIDUALS. * * *

IT HAS BEEN HELD FREQUENTLY BY THE COURTS AND THE ACCOUNTING OFFICERS THAT THE PROVISIONS OF THE STATUTE ARE DESIGNED TO GIVE ALL PERSONS EQUAL RIGHT TO COMPETE FOR GOVERNMENT BUSINESS; TO SECURE TO THE GOVERNMENT THE BENEFITS OF COMPETITION; TO PREVENT UNJUST FAVORITISM BY REPRESENTATIVES OF THE GOVERNMENT IN MAKING PURCHASES ON PUBLIC ACCOUNT; AND TO PREVENT COLLUSION AND FRAUD IN PROCURING SUPPLIES OR LETTING CONTRACTS, UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; HARVEY V. UNITED STATES, 8 CT.1CLS. 501; 3 COMP. DEC. 175; 14 ID. 328; 6 COMP. GEN. 557; 18 ID. 641. THERE IS NO EXEMPTION IN THE STATUTE OF ANY ACTIVITY OF THE GOVERNMENT FROM THE REQUIREMENT TO ADVERTISE, 3 COMP. GEN. 920. THE ACT DOES NOT SPECIFY EXECUTIVE DEPARTMENTS, BUT A FORMER COMPTROLLER OF THE TREASURY, BY CONSTRUING ITS PROVISIONS IN CONNECTION WITH CERTAIN AMENDMENTS OF 1894 DEALING WITH THE EXECUTIVE DEPARTMENTS AND OTHER ESTABLISHMENTS AT WASHINGTON--- SUPERSEDED BY THE ACT OF JUNE 17, 1910, CONSIDERED ABOVE- - ARRIVED AT THE CONCLUSION THAT THE REQUIREMENT OF ADVERTISING WAS LIMITED TO THE EXECUTIVE DEPARTMENTS, 8 COMP. DEC. 128; 15 ID. 606. HOWEVER, SUCH VIEW COMPLETELY OVERLOOKED THE TRUE SIGNIFICANCE OF THE AMENDMENTS AND WAS SPECIFICALLY REPUDIATED IN A FULLY CONSIDERED DECISION OF THIS OFFICE UNDER DATE OF FEBRUARY 21, 1928, A-21057, IN PART AS FOLLOWS:

* * * THERE IS NO EXEMPTION OF THE MIXED CLAIMS COMMISSION FROM THE REQUIREMENT TO ADVERTISE WHICH APPLIES ALIKE TO ALL DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, BOARDS, ETC., OF THE GOVERNMENT (3 COMP. GEN. 920). IN YOUR LETTER OF DECEMBER 28, 1927, TO THIS OFFICE YOU CITE AND QUOTE FROM A DECISION OF THE COMPTROLLER OF THE TREASURY, DATED AUGUST 20, 1901, 8 COMP. DEC. 128, HOLDING THAT THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, WERE NOT APPLICABLE TO THE PROCUREMENT OF SUPPLIES AND SERVICES FOR THE SPANISH CLAIMS COMMISSION UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF MARCH 2, 1901, 31 STAT. 878. THIS DECISION WAS BASED ON THE AMENDMENTS TO SECTION 3709, REVISED STATUTES, BY THE ACTS OF JANUARY 27, 1894, 28 STAT. 33, AND APRIL 21, 1894, 28 STAT. 62, TO PROVIDE A CERTAIN PROCEDURE RELATIVE TO ADVERTISEMENT FOR PROPOSALS, ETC., "FOR FUEL, ICE, STATIONERY, AND OTHER MISCELLANEOUS SUPPLIES TO BE PURCHASED AT WASHINGTON FOR THE USE OF THE EXECUTIVE DEPARTMENTS AND OTHER GOVERNMENT ESTABLISHMENTS" NAMED IN THE FIRST AMENDMENT. IT WAS REASONED THAT THE AMENDMENTS HAVING SPECIFIED THE EXECUTIVE DEPARTMENTS, AND CERTAIN OTHER GOVERNMENT ESTABLISHMENTS PARTICULARLY NAMED, SUCH AMENDMENTS SHOULD BE TAKEN AS A LEGISLATIVE DEFINITION OF THE ESTABLISHMENTS INTENDED TO BE AFFECTED BY THE GENERAL PROVISIONS OF SECTION 3709, REVISED STATUTES. THAT THIS POSITION CANNOT BE SUSTAINED WOULD SEEM CLEAR FROM THE FACT THAT THE AMENDMENTS DIRECTED A PROCEDURE TO BE FOLLOWED ONLY IN THE PURCHASE OF MISCELLANEOUS SUPPLIES AT WASHINGTON, TO BE CONTRACTED FOR ANNUALLY, BY THE PARTICULAR ESTABLISHMENTS THEREIN NAMED, AND DID NOT OTHERWISE CHANGE THE PROVISIONS OF SECTION 3709 WHICH APPLIED GENERALLY TO ALL PURCHASES OF SUPPLIES AND SERVICES IN ANY OF THE DEPARTMENTS OF THE GOVERNMENT. THE FACT THAT SUCH AMENDMENTS SPECIFIED THAT THE EXECUTIVE DEPARTMENTS AND OTHER ESTABLISHMENTS NAMED WERE TO BE GOVERNED IN A CERTAIN MANNER IN THE PURCHASE OF CERTAIN OF THEIR SUPPLIES AT WASHINGTON COULD NOT HAVE THE EFFECT OF LIMITING THE GENERAL PROVISIONS OF SECTION 3709, TO THE ACTIVITIES WHICH WERE NAMED IN THE AMENDMENTS FOR A PARTICULAR PURPOSE. THE CIRCUMSTANCE THAT THE AMENDMENTS SPECIFIED EXECUTIVE DEPARTMENTS WHEREAS SECTION 3709 APPLIED TO "ANY OF THE DEPARTMENTS OF THE GOVERNMENT" WOULD OF ITSELF SEEM CONCLUSIVE THAT THE TERM WAS USED IN THE AMENDMENTS FOR THE PARTICULAR PURPOSE THEREIN PROVIDED FOR AND IN NO SENSE AS A DEFINITION OR LIMITATION OF THE TERM "ANY OF THE DEPARTMENTS OF THE GOVERNMENT" AS USED IN SECTION 3709. THAT THE PROVISIONS OF SECTION 3709 ARE NOT LIMITED TO THE ACTIVITIES NAMED IN THE AMENDMENTS OF JANUARY 27 AND APRIL 21, 1894, SUPRA, IS FURTHER SHOWN BY SUBSEQUENT LEGISLATIVE ENACTMENTS LIMITING THE APPLICABILITY OF SECTION 3709 IN CASES OF EXPENDITURES BELOW SPECIFIED AMOUNTS BY VARIOUS GOVERNMENT ACTIVITIES WHICH WERE NOT NAMED IN THE AMENDMENTS. SEE FOR EXAMPLE THE ACTS OF JUNE 12, 1922, 42 STAT. 638 ( CIVIL SERVICE COMMISSION): FEBRUARY 13, 1923, 42 STAT. 1244 ( U.S. VETERANS' BUREAU), AND MAY 13, 1926, 44 STAT. 547 ( ARCHITECT OF THE CAPITOL).

TO THE LIMITED EXEMPTIONS MENTIONED IN THE ABOVE-QUOTED DECISION THERE COULD BE ADDED MANY MORE SET FORTH IN THE ACT OF OCTOBER 10, 1940, 54 STAT. 1109, PARTICULARLY THE EXEMPTION OF $50 IN SECTION 1 OF THAT ACT APPLICABLE TO YOUR OFFICE, THE SCOPE OF WHICH IS HERE IN QUESTION. SUCH LIMITED EXEMPTIONS, APPLICABLE TO AGENCIES IN ALL BRANCHES OF THE GOVERNMENT, RAISE THE CLEAR IMPLICATION THAT THE CONGRESS INTENDED THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, TO APPLY TO ALL ACTIVITIES OF THE GOVERNMENT NOT SPECIFICALLY EXEMPTED THEREFROM OR OTHERWISE PROVIDED FOR BY LAW.

SAID ACT OF OCTOBER 10, 1940, INSOFAR AS IT APPLIES TO YOUR OFFICE, PROVIDES AS FOLLOWS:

THAT SECTION 3709 OF THE REVISED STATUTES SHALL NOT BE CONSTRUED TO APPLY TO ANY PURCHASES OR SERVICES AUTHORIZED BY ANY APPROPRIATION ACT FOR THE HEREINAFTER ENUMERATED DEPARTMENTS AND INDEPENDENT OFFICES---

(B) WHERE THE AGGREGATE AMOUNT INVOLVED DOES NOT EXCEED THE SUM OF $50---

(1) THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS.

AS TO THE SCOPE OF THE FOREGOING EXEMPTION, IT IS NOTED THAT THE EXEMPTION OF $50 WHICH IT SUPERSEDED, ACT OF MAY 14, 1940, TITLE IV, 54 STAT. 211, 41 U.S.C. 6 GG, AS WELL AS THE SIMILAR EXEMPTION IN THE JUDICIARY APPROPRIATION ACT, 1942, TITLE IV, PUBLIC LAW 135, APPROVED JUNE 28, 1941, 55 STAT. 265, WAS A PROVISO TO THE APPROPRIATION FOR MISCELLANEOUS EXPENSES OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS. HOWEVER, THE LANGUAGE EMPLOYED TO EXCLUDE PURCHASES NOT IN EXCESS OF $50 FROM THE STATUTORY REQUIREMENT FOR ADVERTISING IS ALMOST IDENTICAL WITH THAT IN THE EXEMPTION OF $25 PROVIDED BY THE ACT OF MAY 29, 1920, 41 STAT. 631, IN THE CASE OF PURCHASES OR SERVICES RENDERED FOR THE DEPARTMENT OF JUSTICE. BY THE DECISION OF JULY 29, 1920, 27 COMP. DEC. 113, QUOTED IN PART IN THE LETTER FROM THE CHIEF CLERK OF THE COURT OF CLAIMS, THE LATTER EXEMPTION WAS HELD APPLICABLE TO PURCHASES MADE FOR COURT OFFICIALS OF ARTICLES AUTHORIZED BY THE DEPARTMENT OF JUSTICE UNDER ANY APPROPRIATION ADMINISTERED BY THE DEPARTMENT.

IN VIEW OF THE SPECIFIC PROVISIONS OF SECTION 304 OF THE JUDICIAL CODE, AS AMENDED BY THE ACT OF AUGUST 7, 1939, PLACING THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS IN CHARGE OF THE DISBURSEMENT OF THE MONEYS APPROPRIATED FOR THE MAINTENANCE, SUPPORT, AND OPERATION OF THE COURTS--- AS DEFINED IN SECTION 308 OF THE JUDICIAL CODE, AS AMENDED--- THE PURCHASE, EXCHANGE, TRANSFER, AND DISTRIBUTION OF EQUIPMENT AND SUPPLIES AND THE PROVIDING OF ACCOMMODATIONS FOR THE USE OF THE COURTS AND COURT OFFICIALS, THE REASONING OF THE DECISION, 27 COMP. DEC. 113, APPLIES WITH EQUAL FORCE TO THE PRESENT QUESTION. UNDER SUCH REASONING, THE EXEMPTION OF $50 IS APPLICABLE TO ANY PURCHASES OR SERVICES FOR THE COURT OF CLAIMS OR ANY OF THE OTHER COURTS ENUMERATED IN SECTION 308 OF THE JUDICIAL CODE, AS AMENDED. THE CONCLUSIONS REACHED HEREIN MAKE IT UNNECESSARY TO CONSIDER THE CORRECTNESS OR INCORRECTNESS OF THE VIEWS OF THE FORMER ASSISTANT COMPTROLLER GENERAL, SET FORTH IN THE CHIEF CLERK'S LETTER, IN RESPECT OF THE APPLICATION OF SECTION 3709, REVISED STATUTES, TO PURCHASES UNDER THE APPROPRIATION FOR CONTINGENT EXPENSES OF THE COURT OF CLAIMS.

SUMMARIZING THE ANSWERS TO YOUR THREE QUESTIONS, YOU ARE ADVISED THAT PURCHASES OF SUPPLIES FOR YOUR OFFICE OR THE COURTS ARE NOT REQUIRED TO BE MADE UNDER PROCUREMENT DIVISION CONTRACTS, BUT MAY BE SO MADE WITH THE CONSENT OF THE CONTRACTORS; AND THAT THE PROVISIONS OF SECTION 3709, REVISED STATUTES, ARE APPLICABLE TO ALL PURCHASES IN EXCESS OF $50 MADE UNDER APPROPRIATIONS FOR ANY OF THE COURTS ENUMERATED IN SECTION 308 OF THE JUDICIAL CODE, AS AMENDED. IT MAY BE ADDED THAT THE PURCHASE OF SUPPLIES UNDER A PROCUREMENT DIVISION CONTRACT WILL BE ACCEPTED BY THIS OFFICE AS A SUFFICIENT COMPLIANCE WITH THE REQUIREMENT FOR ADVERTISING, WHERE OTHERWISE APPLICABLE.