B-199696.OM, SEP 4, 1980

B-199696.OM: Sep 4, 1980

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THIS CLAIM CANNOT BE SETTLED BY THE GENERAL ACCOUNTING OFFICE SINCE THE ADVERTISEMENT WAS PLACED WITHOUT PRIOR AUTHORIZATION IN VIOLATION OF 44 U.S.C. A BILL FOR ADVERTISING OR PUBLICATION MAY NOT BE PAID UNLESS THERE IS PRESENTED WITH THE BILL A COPY OF THE WRITTEN AUTHORITY.". PROHIBIT PAYMENT UNLESS WRITTEN AUTHORITY FOR SUCH ADVERTISING IS ISSUED IN ADVANCE. UNLESS AND UNTIL IT IS REPEALED THE PROVISIONS THEREOF REQUIRE THE DENIAL OF ANY PAYMENT TO A PUBLISHER WHO HAS FURNISHED ADVERTISING TO THE GOVERNMENT WHERE THE GOVERNMENT AGENT. A PUBLISHER'S ONLY RELIEF IS PURSUANT TO THE MERITORIOUS CLAIMS ACT OR ENACTMENT OF A PRIVATE RELIEF BILL. IT IS SUGGESTED THAT ENACTMENT OF A STATUTE IN SUBSTANTIALLY THE FOLLOWING FORM WILL ACCOMPLISH THE DESIRED PURPOSE.

B-199696.OM, SEP 4, 1980

PRECIS-UNAVAILABLE

CONGRESS OF THE UNITED STATES:

IN ACCORDANCE WITH THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 31 U.S.C. SEC. 236 (1976), WE MAKE THE FOLLOWING REPORT AND RECOMMENDATION ON THE CLAIM OF THE BROOKLYN TIMES, 108 WEST END AVENUE, BOX 723, BROOKLYN, NEW YORK 11235, FOR $280. THIS CLAIM ORIGINATES AS A RESULT OF A NEWSPAPER ADVERTISEMENT FURNISHED BY THE NAMED PUBLISHER FOR THE DEPARTMENT OF THE ARMY IN ITS MARCH 29, 1978, ISSUE. THIS CLAIM CANNOT BE SETTLED BY THE GENERAL ACCOUNTING OFFICE SINCE THE ADVERTISEMENT WAS PLACED WITHOUT PRIOR AUTHORIZATION IN VIOLATION OF 44 U.S.C. SEC. 3702 (1976), WHICH READS AS FOLLOWS:

"ADVERTISEMENTS, NOTICES, OR PROPOSALS FOR AN EXECUTIVE DEPARTMENT OF THE GOVERNMENT, OR FOR A BUREAU OR OFFICE CONNECTED WITH IT, MAY NOT BE PUBLISHED IN A NEWSPAPER EXCEPT UNDER WRITTEN AUTHORITY FROM THE HEAD OF THE DEPARTMENT; AND A BILL FOR ADVERTISING OR PUBLICATION MAY NOT BE PAID UNLESS THERE IS PRESENTED WITH THE BILL A COPY OF THE WRITTEN AUTHORITY."

ORDINARILY, WE DO NOT REPORT TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT CLAIMS WHICH CANNOT BE PAID BY REASON OF A PROHIBITORY STATUTE. THE INSTANT CASE, HOWEVER, THE PROVISIONS OF 44 U.S.C. SEC. 3702 DO NOT PROHIBIT ADVERTISING IN NEWSPAPERS BUT, INSTEAD, PROHIBIT PAYMENT 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 A CONTRACT.

OUR OFFICE BY LETTER DATED NOVEMBER 25, 1974, B-181337, RECOMMENDED TO THE CONGRESS THAT 44 U.S.C. SEC. 3702 BE REPEALED. HOWEVER, UNLESS AND UNTIL IT IS REPEALED THE PROVISIONS THEREOF REQUIRE THE DENIAL OF ANY PAYMENT TO A PUBLISHER WHO HAS FURNISHED ADVERTISING TO THE GOVERNMENT WHERE THE GOVERNMENT AGENT, THROUGH ERROR OR OVERSIGHT, HAS NOT COMPLIED WITH THE STATUTE IN PROCURING THE ADVERTISING. AS A CONSEQUENCE, A PUBLISHER'S ONLY RELIEF IS PURSUANT TO THE MERITORIOUS CLAIMS ACT OR ENACTMENT OF A PRIVATE RELIEF BILL.

IN VIEW OF THE FACT THAT THE PUBLISHER ACTED IN GOOD FAITH IN FURNISHING ADVERTISING WHICH BENEFITED THE GOVERNMENT, WE RECOMMEND THAT THE CLAIM BE AUTHORIZED FOR PAYMENT.

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 BROOKLYN TIMES, BROOKLYN, NEW YORK, FOR AN ADVERTISEMENT PUBLISHED ON MARCH 29, 1978, FOR THE DEPARTMENT OF THE ARMY AND TO ALLOW IN FULL AND FINAL SETTLEMENT OF SUCH CLAIM THE SUM OF $280. SUCH AMOUNT SHALL BE PAYABLE FROM THE APPLICABLE APPROPRIATION OF THE DEPARTMENT OF THE ARMY."

GENERAL ACCOUNTING OFFICE MEMORANDUM OFFICE OF THE GENERAL COUNSEL: CHIEF, PAYMENT BRANCH, CLAIMS GROUP:

SUBJECT: CLAIM OF THE BROOKLYN TIMES

WE ARE FORWARDING THE CLAIM OF THE BROOKLYN TIMES FOR THE COST OF AN ADVERTISEMENT PLACED IN THE PAPER BY AN ARMY RECRUITER. THE DEPARTMENT OF THE ARMY REPORTS THE GOVERNMENT BENEFITED FROM THE ADVERTISEMENT AND IT CONSIDERS THE PRICE FAIR AND REASONABLE.

WITHOUT WRITTEN AUTHORITY FROM THE HEAD OF THE DEPARTMENT, TITLE 44, U.S. CODE, SECTION 3702, DOES NOT AUTHORIZE PAYMENT OF A BILL FOR ADVERTISING. SINCE THE ARMY RECRUITER WAS NOT DELEGATED THE AUTHORITY TO PLACE THE ADVERTISEMENT, WE MAY NOT LAWFULLY ALLOW THE CLAIM. HOWEVER, AS DESCRIBED IN B-182938-O.M., FEBRUARY 26, 1975, WE REQUEST YOU TO FORWARD THE MATTER FOR THE CONSIDERATION OF THE CONGRESS UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT, TITLE 31, U.S. CODE, SECTION 236.

INDORSEMENT

ASSOCIATE DIRECTOR, FGMS DIVISION - CLAIMS GROUP

RETURNED. THE CLAIM OF THE BROOKLYN TIMES IN THE AMOUNT OF $280 RESULTING FROM AN ADVERTISEMENT PLACED THEREIN ON MARCH 29, 1978, AT THE REQUEST OF THE DEPARTMENT OF THE ARMY MAY NOT BE PAID SINCE THE ADVERTISEMENT WAS PROCURED IN VIOLATION OF 44 U.S.C. SEC. 3702 (1976), WHICH PROVIDES THAT:

"ADVERTISEMENTS, NOTICES, OR PROPOSALS FOR AN EXECUTIVE DEPARTMENT OF THE GOVERNMENT, OR FOR A BUREAU OR OFFICE CONNECTED WITH IT, MAY NOT BE PUBLISHED IN A NEWSPAPER EXCEPT UNDER WRITTEN AUTHORITY FROM THE HEAD OF THE DEPARTMENT; AND A BILL FOR ADVERTISING OR PUBLICATION MAY NOT BE PAID UNLESS THERE IS PRESENTED WITH THE BILL A COPY OF THE WRITTEN AUTHORITY."

NEVERTHELESS, WE BELIEVE THAT THE EQUITIES IN THE MATTER ARE SUCH AS TO WARRANT REPORTING OF THE CLAIM TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 31 U.S.C. SEC. 236 (1976).

ENCLOSED IS A COPY OF OUR REPORT OF TODAY TO THE CONGRESS RECOMMENDING THAT PAYMENT OF THE CLAIM BE AUTHORIZED. WE SUGGEST THAT YOU ADVISE THE CLAIMANT THAT NO FURTHER ACTION IN THE MATTER CAN BE TAKEN UNLESS AND UNTIL THE CONGRESS ENACTS LEGISLATION PURSUANT TO OUR RECOMMENDATION.