B-205094(1), NOV 24, 1981

B-205094(1): Nov 24, 1981

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DIGEST: COST OF NEWSPAPER ADVERTISEMENTS WITHOUT PRIOR WRITTEN AUTHORITY BY THE HEAD OF THE DEPARTMENT OR HIS REPRESENTATIVE MAY NOT BE PAID BECAUSE SUCH PAYMENT IS EXPRESSLY PROHIBITED BY 44 U.S.C. THE CLAIM WILL BE SUBMITTED TO THE CONGRESS PURSUANT TO THE MERITORIOUS CLAIMS ACT OF APRIL 10. WE CONCLUDE THAT THE DISALLOWANCE WAS CORRECT. THE CLAIM WAS DISALLOWED BECAUSE 44 U.S.C. IS FROM THE CHIEF OF NAVAL OPERATIONS TO THE COMMANDER. THE SECOND DOCUMENT IS A MEMORANDUM. FROM THE ASSISTANT SECRETARY OF THE NAVY TO THE DEPUTY CHIEF OF NAVAL OPERATIONS AND STATES THAT AUTHORITY WAS GRANTED IN A MEETING ON DECEMBER 29. THE DOCUMENTS SUBMITTED BY THE NAVY DO NOT ESTABLISH THAT WRITTEN AUTHORIZATION TO PUBLISH WAS OBTAINED PRIOR TO THE JANUARY 6.

B-205094(1), NOV 24, 1981

DIGEST: COST OF NEWSPAPER ADVERTISEMENTS WITHOUT PRIOR WRITTEN AUTHORITY BY THE HEAD OF THE DEPARTMENT OR HIS REPRESENTATIVE MAY NOT BE PAID BECAUSE SUCH PAYMENT IS EXPRESSLY PROHIBITED BY 44 U.S.C. SEC. 3702 (1976); HOWEVER, THE CLAIM WILL BE SUBMITTED TO THE CONGRESS PURSUANT TO THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, BECAUSE OF THE EQUITABLE CONSIDERATIONS IN THIS CASE.

THE VIRGINIAN-PILOT AND THE LEDGER-STAR:

THE COMMANDER, NAVAL FACILITIES ENGINEERING COMMAND, NORFOLK, VIRGINIA (NAVY), HAS REQUESTED RECONSIDERATION OF THE DISALLOWANCE BY OUR CLAIMS GROUP OF THE CLAIM OF THE VIRGINIAN-PILOT AND THE LEDGER STAR FOR ADVERTISING SERVICES PROVIDED TO THE NAVY FROM JANUARY 6 TO 12, 1981.

FOR THE REASONS THAT FOLLOW, WE CONCLUDE THAT THE DISALLOWANCE WAS CORRECT.

THE CLAIM WAS DISALLOWED BECAUSE 44 U.S.C. SEC. 3702 (1976) REQUIRES THAT EVIDENCE OF WRITTEN AUTHORIZATION IN ADVANCE OF THE ADVERTISING SERVICES BE OBTAINED AND PRESENTED WITH THE BILL. IN REQUESTING RECONSIDERATION, THE NAVY HAS SUBMITTED TWO DOCUMENTS WHICH IT CONTENDS SATISFY THE STATUTORY REQUIREMENTS. THE FIRST DOCUMENT, DATED DECEMBER 31, 1980, IS FROM THE CHIEF OF NAVAL OPERATIONS TO THE COMMANDER, ATLANTIC DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, AND INDICATES THAT A "NOTICE OF FINDING OF NO SIGNIFICANT IMPACT" SHOULD BE PUBLISHED IN THE LOCAL NEWS MEDIA AND COPIES MAILED TO INTERESTED PARTIES. THE SECOND DOCUMENT IS A MEMORANDUM, DATED JULY 27, 1981, FROM THE ASSISTANT SECRETARY OF THE NAVY TO THE DEPUTY CHIEF OF NAVAL OPERATIONS AND STATES THAT AUTHORITY WAS GRANTED IN A MEETING ON DECEMBER 29, 1980, WITH THE OFFICE OF THE SECRETARY OF THE NAVY TO PUBLISH A "FINDING OF NO SIGNIFICANT IMPACT" IN THE LOCAL (NORFOLK, VIRGINIA.) MEDIA, IN ACCORDANCE WITH NAVY IMPLEMENTING INSTRUCTIONS.

THE DOCUMENTS SUBMITTED BY THE NAVY DO NOT ESTABLISH THAT WRITTEN AUTHORIZATION TO PUBLISH WAS OBTAINED PRIOR TO THE JANUARY 6, 1981, PUBLICATION. IN VIEW OF THE MANDATORY LANGUAGE OF THE STATUTE, WE HAVE HELD THAT AFTER-THE-FACT APPROVAL OR ATTEMPTED RATIFICATION IS NOT SUFFICIENT TO REMOVE THE STATUTORY BAR AGAINST PAYMENT AND, IN THE CIRCUMSTANCES, WE CONCLUDE THAT THE DISALLOWANCE WAS CORRECT. RICHARD A. DU BEY, B-199951(1), APRIL 16, 1981, 60 COMP.GEN. (1981).

HOWEVER, IN SOMEWHAT SIMILAR CIRCUMSTANCES, WE HAVE CONCLUDED THAT BECAUSE THE NEWSPAPER PUBLISHED THE ADVERTISEMENT IN GOOD FAITH AND THE GOVERNMENT RECEIVED THE BENEFIT THEREOF, THE EQUITIES WARRANTED REPORTING THE CLAIM TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 31 U.S.C. SEC. 236 (1976). NEWSPAPER ADVERTISING BY UNAUTHORIZED EMPLOYEE, B-181337, NOVEMBER 25, 1974. OUR OFFICE HAS RECOMMENDED TO THE CONGRESS THAT SECTION 3702 BE REPEALED AND A BILL, H. R. 1020, IS NOW PENDING BEFORE THE CONGRESS. TO DATE, THE CONGRESS HAS NOT CHOSEN TO ACT FAVORABLY UPON THIS RECOMMENDATION.

IN THIS CASE, THE VIRGINIAN-PILOT AND THE LEDGER-STAR CARRIED THE ADVERTISEMENTS AS REQUESTED AND THE NAVY HAS RECEIVED THE FULL BENEFIT OF THE REQUIRED ADVERTISEMENTS. THE NAVY STATES THAT THE AMOUNT CLAIMED BY THE NEWSPAPER IS FAIR AND REASONABLE. THE RECORD ALSO CONTAINS A STATEMENT THAT ACTION IS BEING TAKEN OR PLANNED TO PREVENT A RECURRENCE OF UNAUTHORIZED COMMITMENTS. UNDER THESE CIRCUMSTANCES, WE ARE SUBMITTING THIS CLAIM TO THE CONGRESS PURSUANT TO THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, RECOMMENDING THAT PAYMENT OF THE CLAIM BE AUTHORIZED.