B-242413, Jul 12, 1991

B-242413: Jul 12, 1991

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

APPROPRIATIONS/FINANCIAL MANAGEMENT - Appropriation Availability - Purpose availability - Necessary expenses rule - Advertising APPROPRIATIONS/FINANCIAL MANAGEMENT - Appropriation Availability - Purpose availability - Necessary expenses rule - Voluntary expenditure Reimbursement DIGEST: Claim for reimbursement of personal funds used to pay for newspaper advertisements for National Guard recruitment activities may be paid under "public necessity" exception to prohibition against reimbursing voluntary creditors where underlying expenditure is authorized. Failure to act would have resulted in disruption of federal activity and transaction satisfies criteria for quantum meruit. Payment is not precluded by 44 U.S.C.

B-242413, Jul 12, 1991

APPROPRIATIONS/FINANCIAL MANAGEMENT - Appropriation Availability - Purpose availability - Necessary expenses rule - Advertising APPROPRIATIONS/FINANCIAL MANAGEMENT - Appropriation Availability - Purpose availability - Necessary expenses rule - Voluntary expenditure Reimbursement DIGEST: Claim for reimbursement of personal funds used to pay for newspaper advertisements for National Guard recruitment activities may be paid under "public necessity" exception to prohibition against reimbursing voluntary creditors where underlying expenditure is authorized, failure to act would have resulted in disruption of federal activity and transaction satisfies criteria for quantum meruit. Payment is not precluded by 44 U.S.C. Sec. 3702 where authority to approve advertisements had been delegated by Chief, National Guard Bureau to U.S. Property and Fiscal Officers.

SGM Theodore Schultz:

This action is in response to a claim submitted to us by SGM Theodore M. Schultz for reimbursement of $3,149.50 he paid from personal funds for recruiting advertisements while he was Recruiting Operations Sergeant for the Minnesota Army National Guard.

As part of his duties in January 1987, SGM Schultz requested Wide Area Classified Ad Associates to place advertisements promoting service in the National Guard in 39 community papers for a period of 15 weeks. The request was a routine extension of previous advertising with Wide Area Advertising. However, due to an administrative error, no purchase order was issued by the U.S. Property and Fiscal Officer, Minnesota (USPFO). When the invoices for the advertisements arrived, SGM Schultz realized that a purchase order had not been issued. Believing that the advertisements would not be published unless payment was made, SGM Schultz paid for the advertisements out of his own personal funds to prevent a significant disruption in recruitment efforts in rural Minnesota. After investigation, the USPFO recommended ratification of the unauthorized commitment. However, the National Guard Bureau was unable to authorize ratification because the vendor had been paid. The Bureau recommended that Schultz file a claim with our Office under the public necessity exception to the voluntary creditor rule.

In 62 Comp.Gen. 419 (1983), we held that government employees who use personal funds to procure services may be reimbursed under the public necessity exception if:

(1) the underlying expenditure is authorized;

(2) failure to act would result in disruption of a federal program or activity;

(3) the transaction satisfies either the criteria for ratification or restitution under a quantum meruit theory.

SGM Schultz's claim meets all of these requirements. The USPFO's investigation revealed that there were funds available for the commitment, a bona fide government requirement existed, and that the transaction would have been valid had the commitment been made by an authorized procurement agent. There is no reason to dispute Schultz's contention that recruitment efforts would have been disrupted had he not used personal funds to pay for the advertisements. Finally, the USPFO's findings and recommendation that the claim be ratified is prima facie evidence that it satisfies the criteria for quantum meruit including a benefit to the government, good faith and reasonable price requirements.

Finally, we do not find 44 U.S.C. Sec. 3702 to be a bar to the payment. Section 3702 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."

We held in New York Times, B-206625, July 26, 1982, that prior written authority in the form of a delegation of authority is sufficient to comply with the statute. Here, National Guard Federal Acquisition Supplement 1.9101(b)(1)(1989) contains such a delegation from the Chief, National Guard Bureau to the USPFOs.

Accordingly, SGM Schultz may be reimbursed $3,149.50.