B-197289, APRIL 14, 1980, 59 COMP.GEN. 386

B-197289, APRIL 14, 1980, 59 COMP.GEN. 386

APPROPRIATIONS - OBLIGATION - PRINTING AND BINDING REQUISITIONS - PERFORMANCE CONTINUING BEYOND FISCAL YEAR FACT THAT PERFORMANCE UNDER REQUISITION FOR PRINTING AND BINDING EXTENDS OVER MORE THAN ONE FISCAL YEAR DOES NOT MEAN PAYMENTS ARE TO BE SPLIT AMONG FISCAL YEARS ON BASIS OF SERVICES ACTUALLY PERFORMED. GENERAL RULE IS THAT PAYMENTS UNDER GOVERNMENT CONTRACTS ARE CHARGED TO FISCAL YEAR APPROPRIATION CURRENT AT TIME LEGAL OBLIGATION ARISES. APPROPRIATIONS - OBLIGATION - BONA FIDE NEEDS RESTRICTIONS PRINTING AND BINDING REQUISITION, ACCOMPANIED BY COPY OR SPECIFICATIONS SUFFICIENT TO ALLOW GOVERNMENT PRINTING OFFICE TO PROCEED WITH JOB, CREATES VALID OBLIGATION IF NEED FOR PRINTING EXISTS AT TIME ORDER IS SUBMITTED.

MATTER OF: OBLIGATION OF APPROPRIATION FOR PRINTING - COMMISSION OF FINE ARTS, APRIL 14, 1980:

AN AUTHORIZED CERTIFYING OFFICER OF THE DEPARTMENT OF THE INTERIOR, ACTING AS FISCAL OFFICER FOR THE COMMISSION OF FINE ARTS UNDER AN AGREEMENT BETWEEN THE DEPARTMENT AND THE COMMISSION, HAS REQUESTED OUR DECISION ON THE FISCAL YEAR APPROPRIATIONS) TO BE CHARGED FOR THE COSTS OF PUBLICATION BY THE COMMISSION OF ITS BOOK "SIXTEENTH STREET ARCHITECTURE, VOLUME I," WHICH WAS PRINTED BY THE GOVERNMENT PRINTING OFFICE (GPO). ACCORDING TO THE INQUIRY, ALTHOUGH PRINTING OF THE BOOK WAS INITIALLY ORDERED BY THE COMMISSION IN FISCAL YEAR 1977, THE COMMISSION HAS ATTEMPTED TO OBLIGATE PART OF ITS FISCAL YEAR 1977, 1978, AND 1979 APPROPRIATIONS FOR THE WORK.

THE CERTIFYING OFFICER STATES HIS BELIEF THAT THE ENTIRE COST OF THE PRINTING JOB SHOULD HAVE BEEN CHARGED AGAINST THE COMMISSION'S FISCAL YEAR 1977 APPROPRIATION. THE COMMISSION, ON THE OTHER HAND, ASSERTS THAT COSTS SHOULD BE DISTRIBUTED BY FISCAL YEAR BASED ON THE ACTUAL INCURRENCE OF EXPENSES BY GPO AND THE AVAILABILITY OF APPROPRIATED FUNDS FOR PRINTING.

FOR THE REASONS INDICATED BELOW, WE AGREE WITH THE CERTIFYING OFFICER THAT THE ENTIRE COST OF PRINTING "SIXTEENTH STREET ARCHITECTURE" SHOULD HAVE BEEN CHANGED TO THE COMMISSION'S FISCAL YEAR 1977 APPROPRIATION.

ON AUGUST 23, 1977, THE COMMISSION SUBMITTED TO THE PUBLIC PRINTER A PRINTING AND BINDING REQUISITION (STANDARD FORM 1), DESIGNATED REQUISITION NO. 77-18. THE REQUISITION ORDERED THE PRINTING OF 2500 COPIES OF "SIXTEENTH STREET ARCHITECTURE, VOLUME I." THE PRINTING WAS TO BE CHARGED TO THE FISCAL YEAR 1977 APPROPRIATION, SALARIES AND EXPENSES, COMMISSION OF FINE ARTS. THE REQUISITION ORDER WAS ACCOMPANIED BY THE COMMISSION'S MANUSCRIPT FOR THE BOOK.

BY LETTER OF SEPTEMBER 13, 1977, TO THE PREDECESSOR OF THE CURRENT CERTIFYING OFFICER, THE SECRETARY OF THE COMMISSION REQUESTED THAT $14,000 OUT OF THE COMMISSION'S FISCAL YEAR 1977 APPROPRIATION BE OBLIGATED FOR THE PRINTING OF THE BOOK. THE LETTER INDICATED THAT THE GPO HAD GIVEN THE COMMISSION A ROUGH ESTIMATE FOR THE ENTIRE JOB OF ABOUT $21,000.

ON SEPTEMBER 28, 1978, THE COMMISSION SUBMITTED A SECOND PRINTING AND BINDING REQUISITION TO THE GPO, DESIGNATED REQUISITION NO. 78-23. THIS REQUISITION AGAIN ORDERED THE PRINTING OF 2500 COPIES OF "SIXTEENTH STREET ARCHITECTURE, VOLUME I." IT INDICATED THAT THE JOB WAS TO BE CHARGED TO THE FISCAL YEAR 1978 APPROPRIATION, SALARIES AND EXPENSES, COMMISSION OF FINE ARTS. AT THE BOTTOM OF THE FORM WERE HAND WRITTEN THE WORD "CONTINUING REQUISITION TO REQ.-- ."

IN A MEMORANDUM TO THE CERTIFYING OFFICER DATED SEPTEMBER 29, 1978, THE SECRETARY OF THE COMMISSION REQUESTED THAT $13,000 OF THE COMMISSION'S FISCAL YEAR 1978 APPROPRIATION BE OBLIGATED FOR THE PRINTING JOB. THE MEMORANDUM INDICATED THAT THE GPO AND INFORMALLY ADVISED THE COMMISSION THAT APPROXIMATELY $13,000 WORTH OF WORK HAD BEEN DONE ON THE COMMISSION'S ORDER IN FISCAL YEAR 1978. THE MEMORANDUM WAS ACCOMPANIED BY A COPY OF REQUISITION NO. 78-23 AND A NEW INFORMAL ESTIMATE BY THE GPO OF THE TOTAL COST OF THE JOB, WHICH GAVE A "BALL PARK ESTIMATE" OF OVER $31,000.

IN A LETTER TO THE CERTIFYING OFFICER, DATED AUGUST 10, 1979, THE SECRETARY OF THE COMMISSION REQUESTED THAT $28,000 OF THE COMMISSION'S FISCAL YEAR 1979 APPROPRIATION BE OBLIGATED FOR THE PRINTING OF "SIXTEENTH STREET ARCHITECTURE." THE LETTER INDICATES THAT THE GPO HAD INFORMED THE COMMISSION THAT THE ACTUAL COST OF THE PRINTING WOULD BE ABOUT $40,000.

A GPO INVOICE, DATED OCTOBER 5, 1979, INDICATES THAT THE TOTAL CHARGE FOR PRINTING THE COMMISSION BOOK WAS $39,421. THE GPO BILLED $20,700 OF THIS AMOUNT TO REQUISITION NO. 77-18 AND $18,721 TO REQUISITION NO. 78-23. A NOVEMBER 2, 1979, LETTER TO THE CERTIFYING OFFICER, THE COMPTROLLER OF GPO STATED THAT THE JOB WAS BILLED TO THE TWO SEPARATE REQUISITIONS AT THE REQUEST OF THE COMMISSION.

AS MENTIONED ABOVE, THE COMMISSION IS OF THE OPINION THAT THE COSTS OF PRINTING "SIXTEENTH STREET ARCHITECTURE" SHOULD BE CHARGED AGAINST ITS FISCAL YEAR 1977, 1978, AND 1979 APPROPRIATIONS IN PROPORTION TO THE AMOUNT OF WORK DONE BY GPO IN THOSE YEARS. WE DO NOT AGREE. AS WE STATED AT 23 COMP.GEN. 370, 371(1943), THE FACT THAT PERFORMANCE UNDER A CONTRACT EXTENDS OVER MORE THAN ONE FISCAL YEAR DOES NOT MEAN THAT PAYMENTS ARE TO BE SPLIT AMONG THE FISCAL YEARS ON THE BASIS OF SERVICES ACTUALLY PERFORMED. RATHER, THE GENERAL RULE IS THAT PAYMENTS DUE UNDER A GOVERNMENT CONTRACT ARE TO BE CHARGED TO THE FISCAL YEAR APPROPRIATION CURRENT AT THE TIME THE LEGAL OBLIGATION AROSE; THAT IS, THE FISCAL YEAR IN WHICH A BONA FIDE NEED FOR THE GOODS OR SERVICES AROSE AND IN WHICH A VALID CONTRACT OR AGREEMENT WAS ENTERED INTO. SEE, E.G., B-125444, MAY 2, 1956; 27 COMP.GEN. 711, 714(1948); 23 ID. 370(1943).

IT SHOULD BE NOTED THAT THE PRINTING REQUISITION IN QUESTION WAS NOT ISSUED AS PART OF AN INTERAGENCY ECONOMY ACT AGREEMENT, UNDER 31 U.S.C. 686, BUT RATHER PURSUANT TO THE SPECIFIC AUTHORITY OF 44 U.S.C. 501. PERFORMANCE UNDER AN ECONOMY ACT AGREEMENT CANNOT ORDINARILY EXTEND BEYOND THE END OF THE FISCAL YEAR OF THE FUNDS WHICH ARE BEING OBLIGATED, BECAUSE THESE FUNDS MUST BE DEOBLIGATED AT THE END OF THE FISCAL YEAR TO THE EXTENT THAT PERFORMANCE HAS NOT BEEN COMPLETED. SEE 31 U.S.C. 686- 1(1976); 58 COMP.GEN. 471, 472-73(1979).

IN THE CASE OF PRINTING AND BINDING SERVICES PERFORMED FOR A FEDERAL AGENCY BY GPO, WE HAVE HELD THAT WHEN A REQUISITION FOR PRINTING IS ACCOMPANIED BY COPY OR SPECIFICATIONS SUFFICIENT FOR GPO TO PROCEED WITH THE JOB, AND THERE IS A PRESENT NEED FOR THE PRINTING OF THE ORDERED PUBLICATION, THE ORDER CREATES A VALID OBLIGATION. SEE B-123964, AUGUST 23, 1955; 23 COMP.GEN. 82(1943). THE FISCAL YEAR APPROPRIATION CURRENT AT THE TIME OF THE ORDER SHOULD BE CHARGED FOR FULL COSTS OF THE PRINTING, NOTWITHSTANDING THE FACT THAT THE WORK MAY NOT BE COMPLETED DURING THE FISCAL YEAR. SEE ID.

IN THE PRESENT INSTANCE, THE RECORD SHOWS THAT PRINTING AND BINDING REQUISITION NO. 77-18, SUBMITTED TO GPO AUGUST 23, 1977, CONTAINED SUFFICIENT SPECIFICATIONS AND WAS ACCOMPANIED BY COMMISSION-PREPARED MANUSCRIPT SO THAT GPO COULD PROCEED WITH THE JOB. IT IS ALSO CLEAR THAT THE COMMISSION HAD A PRESENT NEED FOR THE PRINTING IT ORDERED. IT FOLLOWS THAT REQUISITION NO. 77-18 CREATED A LAWFUL OBLIGATION OF FISCAL YEAR 1977 FUNDS FOR THE COSTS OF PRINTING "SIXTEENTH STREET ARCHITECTURE." ALTHOUGH THE COMMISSION ONLY RECORDED AN OBLIGATION OF $14,000, THE ACTUAL OBLIGATION CREATED WAS THE FULL COST OF THE PRINTING JOB. IT ALSO FOLLOWS THAT THE ATTEMPTS BY THE COMMISSION TO OBLIGATE FISCAL YEAR 1978 AND 1979 FUNDS FOR THE PRINTING WERE NOT EFFECTIVE. THE COMMISSION'S FISCAL YEAR 1978 AND 1979 APPROPRIATIONS WERE NOT AVAILABLE FOR THE FISCAL YEAR 1977 PRINTING ORDER AND MAY NOT BE USED TO PAY FOR THE PRINTING OF "SIXTEENTH STREET ARCHITECTURE.

IT IS NOT CLEAR FROM THE RECORD WHETHER THE COMMISSION HAD SUFFICIENT UNOBLIGATED FISCAL YEAR 1977 FUNDS AVAILABLE TO PAY FOR THE PRINTING OF "SIXTEENTH STREET ARCHITECTURE" WHEN IT SUBMITTED ITS REQUISITION TO GPO. THE COMMISSION NORMALLY RECEIVES A LUMP SUM APPROPRIATION FOR SALARIES AND EXPENSES. THEREFORE, ALTHOUGH THE COMMISSION MAY NOT HAVE BUDGETED A SUFFICIENT SUM FOR PRINTING, IT MAY HAVE HAD OTHER FUNDS AVAILABLE TO PAY FOR THE PRINTING JOB. HOWEVER, IF THE COMMISSION IN FACT DID NOT HAVE SUFFICIENT FISCAL YEAR 1977 FUNDS TO PAY FOR THE PRINTING, TWO STATUTORY PROVISIONS WERE VIOLATED.

FIRST, SUBSECTION 1102(B) OF TITLE 44 OF THE U.S.C. PROVIDES:

PRINTING MAY NOT BE DONE FOR AN EXECUTIVE DEPARTMENT, INDEPENDENT AGENCY OR ESTABLISHMENT IN A FISCAL YEAR IN EXCESS OF THE AMOUNT OF THE APPROPRIATION.

ALTHOUGH THE MEANING OF THIS PROVISION IS NOT ENTIRELY CLEAR, IT IS OUR OPINION THAT IT AT LEAST PROHIBITS AN AGENCY FROM REQUISITIONING PRINTING FROM GPO UNLESS IT HAS SUFFICIENT FUNDS AVAILABLE TO PAY FOR THAT PRINTING.

SECOND, SUBSECTION 665(A) OF TITLE 31 OF THE U.S.C.PART OF THE SO CALLED "ANTIDEFICIENCY ACT," PROVIDES:

NO OFFICER OR EMPLOYEE OF THE UNITED STATES SHALL MAKE OR AUTHORIZE AN EXPENDITURE FROM OR CREATE OR AUTHORIZE AN OBLIGATION UNDER ANY APPROPRIATION OR FUND IN EXCESS OF THE AMOUNT AVAILABLE THEREIN; NOR SHALL ANY SUCH OFFICER OR EMPLOYEE INVOLVE THE GOVERNMENT IN ANY CONTRACT OR OTHER OBLIGATION, FOR THE PAYMENT OF MONEY FOR ANY PURPOSE, IN ADVANCE OF APPROPRIATIONS MADE FOR SUCH PURPOSE, UNLESS SUCH CONTRACT OR OBLIGATION IS AUTHORIZED BY LAW.

IN THIS INSTANCE, IF THE COMMISSION DID NOT HAVE SUFFICIENT FUNDS TO PAY FOR THE PRINTING AT THE TIME THE PRINTING REQUISITION WAS SUBMITTED TO GPO, THEN THE OFFICER ORDERING THE PRINTING HAS VIOLATED THIS ACT.

IT MAY BE ARGUED THAT THE ANTIDEFICIENCY ACT SHOULD NOT BE APPLIED TO THE PRESENT SITUATION (1) BECAUSE GPO PRINTING OF DOCUMENTS INVOLVES A TRANSACTION BETWEEN TWO FEDERAL AGENCIES, (2) BECAUSE THE CONGRESS WILL NOT BE FORCED TO ENACT A DEFICIENCY APPROPRIATION TO LIQUIDATE THE COMMISSION'S DEBTS TO GPO, AND (3) BECAUSE THE COST TO THE UNITED STATES IS THE SAME WHETHER THE COMMISSION'S APPROPRIATION OR GPO'S REVOLVING FUND PAY FOR THIS PRINTING. HOWEVER, AS WE STATED AT 42 COMP.GEN. 272, 275, ONE OF THE PURPOSES OF THE ANTIDEFICIENCY ACT WAS:

* * * TO KEEP ALL THE DEPARTMENTS OF THE GOVERNMENT, IN THE MATTER OF INCURRING OBLIGATIONS FOR EXPENDITURES, WITHIN THE LIMITS AND PURPOSES OF APPROPRIATIONS ANNUALLY PROVIDED FOR CONDUCTING THEIR LAWFUL FUNCTIONS * *

BY INCURRING OBLIGATIONS IN EXCESS OF AVAILABLE APPROPRIATIONS, THE COMMISSION WOULD CAUSE THE UNITED STATES TO INCUR COST GREATER THAN THE CONGRESS HAD AUTHORIZED. IF IN FACT A VIOLATION OF THE ANTIDEFICIENCY ACT OCCURRED, THE PROVISIONS OF 31 U.S.C. 665(I)(2) REQUIRE THAT IT BE REPORTED TO THE CONGRESS.