B-36003, SEPTEMBER 1, 1943, 23 COMP. GEN. 157

B-36003: Sep 1, 1943

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BUREAUS AND ESTABLISHMENTS IRRESPECTIVE OF WHETHER THEY ARE IN THE EXECUTIVE BRANCH OF THE GOVERNMENT. 1943: I HAVE YOUR LETTER OF JULY 26. THIS RESTRICTION IS DOUBTLESS DESIRABLE BOTH FROM THE STANDPOINT OF THE CONTRACTORS AND OF THE MAJORITY OF THE GOVERNMENT AGENCIES. 000 ENVELOPES WILL RESULT IN MORE WASTE THAN BENEFIT AS IN SOME INSTANCES SUCH A QUANTITY WOULD BE A TEN YEARS' SUPPLY. WE HAVE INQUIRED OF ALL CONTRACTORS LISTED IN THE POST OFFICE CONTRACT SCHEDULE AND ONLY THREE FIRMS. HAVE AGREED TO ACCEPT ORDERS FOR LESS THAN THE MINIMUM OF 5. WE ARE CONSIDERING THE ADVISABILITY OF OUR MAKING SEPARATE CONTRACTS FOR THE REQUIREMENTS OF THE JUDICIARY OR FOR SUCH PORTION OF THOSE REQUIREMENTS AS CANNOT BE PURCHASED UNDER THE POST OFFICE CONTRACTS.

B-36003, SEPTEMBER 1, 1943, 23 COMP. GEN. 157

ENVELOPES - STATUTORY REQUIREMENTS AS TO PURCHASES BY AGENCIES NOT IN EXECUTIVE BRANCH OF GOVERNMENT THE PROVISIONS OF THE ACT OF JUNE 26, 1906, THAT THE POSTMASTER GENERAL SHALL CONTRACT FOR ALL ENVELOPES FOR USE BY "* * * EXECUTIVE DEPARTMENTS, AND ALL GOVERNMENT BUREAUS AND ESTABLISHMENTS," APPLY TO ALL GOVERNMENT DEPARTMENTS, BUREAUS AND ESTABLISHMENTS IRRESPECTIVE OF WHETHER THEY ARE IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, AND, THEREFORE, ENVELOPES FOR THE USE OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS--- AN ESTABLISHMENT NOT IN THE EXECUTIVE BRANCH OF THE GOVERNMENT--- SHOULD BE PROCURED IN CONFORMITY WITH THE PROVISIONS OF THE SAID ACT. 21 COMP. GEN. 105, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, SEPTEMBER 1, 1943:

I HAVE YOUR LETTER OF JULY 26, 1943, AS FOLLOWS:

AS YOU MAY KNOW, THE POST OFFICE DEPARTMENT LIMITED ITS CONTRACTS FOR THE SIX-MONTH PERIOD BEGINNING JULY 1, 1943, TO ORDERS FOR NOT LESS THAN 5,000 ENVELOPES OF SIZES UP TO AND INCLUDING 4 1/2 INCHES BY 10 3/8 INCHES AND TO ORDERS OF NOT LESS THAN 1,000 ENVELOPES OF THE LARGER SIZES. THIS RESTRICTION IS DOUBTLESS DESIRABLE BOTH FROM THE STANDPOINT OF THE CONTRACTORS AND OF THE MAJORITY OF THE GOVERNMENT AGENCIES; HOWEVER, FOR A SUBSTANTIAL PORTION OF OUR REQUIREMENTS THE PURCHASE OF 5,000 ENVELOPES WILL RESULT IN MORE WASTE THAN BENEFIT AS IN SOME INSTANCES SUCH A QUANTITY WOULD BE A TEN YEARS' SUPPLY. WE HAVE INQUIRED OF ALL CONTRACTORS LISTED IN THE POST OFFICE CONTRACT SCHEDULE AND ONLY THREE FIRMS, INCLUDING ONLY THOSE HAVING CONTRACTS FOR ITEMS OF LITTLE IMPORTANCE TO US, HAVE AGREED TO ACCEPT ORDERS FOR LESS THAN THE MINIMUM OF 5,000.

THEREFORE, WE ARE CONSIDERING THE ADVISABILITY OF OUR MAKING SEPARATE CONTRACTS FOR THE REQUIREMENTS OF THE JUDICIARY OR FOR SUCH PORTION OF THOSE REQUIREMENTS AS CANNOT BE PURCHASED UNDER THE POST OFFICE CONTRACTS.

UNDER DATE OF JUNE 4, 1941, THIS OFFICE SUBMITTED THE QUESTION AS TO WHETHER THE CONTRACTS EXECUTED BY THE PROCUREMENT DIVISION, TREASURY DEPARTMENT, COVER THE REQUIREMENTS OF THE JUDICIARY. IN YOUR REPLY OF AUGUST 6, 1941, (B17617), YOU ADVISED THAT THE BASIC ACT OF JUNE 17, 1910, UNDER WHICH THE PROCUREMENT DIVISION OPERATES "DEALT SPECIFICALLY WITH THE SUPPLIES "FOR THE EXECUTIVE DEPARTMENTS AND OTHER GOVERNMENT ESTABLISHMENTS IN WASHINGTON" " AND HAD BEEN HELD TO INCLUDE ONLY OTHER EXECUTIVE ESTABLISHMENTS. AS A RESULT IT WAS DECIDED THAT THE ACT WOULD NOT MAKE IT MANDATORY THAT MATERIALS FOR THE JUDICIAL BRANCH OF THE GOVERNMENT BE PURCHASED UNDER THE CONTRACTS EXECUTED BY THE PROCUREMENT DIVISION.

TITLE 39, U.S.C. SECTION 355 READS AS FOLLOWS:

"THE POSTMASTER GENERAL SHALL CONTRACT, FOR A PERIOD NOT EXCEEDING FOUR YEARS, FOR ALL ENVELOPES, STAMPED OR OTHERWISE, DESIGNED FOR SALE TO THE PUBLIC, OR FOR USE BY THE POST OFFICE DEPARTMENT, THE POSTAL SERVICE, AND OTHER EXECUTIVE DEPARTMENTS, AND ALL GOVERNMENT BUREAUS AND ESTABLISHMENTS, AND THE BRANCHES OF THE SERVICE COMING UNDER THEIR JURISDICTION, AND MAY CONTRACT FOR THEM TO BE PLAIN OR WITH SUCH PRINTED MATTER AS MAY BE PRESCRIBED BY THE DEPARTMENT MAKING REQUISITION THEREFOR.'

WE ASSUME THAT THIS STATUTE, LIKE THE ACT OF JUNE 17, 1910, WAS INTENDED TO APPLY ON TO THE EXECUTIVE ESTABLISHMENTS OF THE GOVERNMENT AND WOULD NOT RESTRICT THE JUDICIARY TO THE USE OF THE CONTRACTS EXECUTED BY THE POST OFFICE DEPARTMENT, BUT BEFORE TAKING ACTION IN THE MATTER WE WISH TO INQUIRE WHETHER YOUR OFFICE WOULD TAKE EXCEPTION TO PAYMENTS WHICH WE MIGHT MAKE UNDER CONTRACT EXECUTED BY THIS OFFICE FOR THE PURCHASE OF ENVELOPES FOR THE JUDICIARY.

A DECISION IN THE MATTER AT YOUR EARLIEST CONVENIENCE WILL BE APPRECIATED.

THE ACT OF JUNE 26, 1906, 34 STAT. 476, 39 U.S.C. 355, QUOTED IN YOUR LETTER, HAS BEEN HELD TO APPLY TO ALL GOVERNMENT "DEPARTMENTS * * * BUREAUS AND ESTABLISHMENTS, AND THE BRANCHES OF THE SERVICE COMING UNDER THEIR JURISDICTION," IRRESPECTIVE OF WHETHER THEY ARE OR ARE NOT IN THE EXECUTIVE BRANCH OF THE GOVERNMENT.

IN DECISION OF APRIL 9, 1908, 14 COMP. DEC. 674, THE COMPTROLLER OF THE TREASURY STATED---

THE AUDITOR FOR THE STATE AND OTHER DEPARTMENTS HAS SUBMITTED FOR APPROVAL, DISAPPROVAL, OR MODIFICATION, HIS DECISION OF MARCH 21, 1908, MAKING AN ORIGINAL CONSTRUCTION OF A STATUTE, AS FOLLOWS:

"THE ACT OF JUNE 26, 1906, REQUIRES THAT THE POSTMASTER-1GENERAL SHALL CONTRACT FOR ALL ENVELOPES "FOR USE BY THE POST-OFFICE DEPARTMENT, THE POSTAL SERVICE, AND OTHER EXECUTIVE DEPARTMENTS, AND ALL GOVERNMENT BUREAUS AND ESTABLISHMENTS AND THE BRANCHES OF THE SERVICE COMING UNDER THEIR JURISDICTION.' THE QUESTION IS WHETHER THE LIBRARY OF CONGRESS IS A GOVERNMENT ESTABLISHMENT. THE POSTMASTER 1GENERAL INTIMATES THAT UNDER HIS FIRST CONSTRUCTION HE HELD THAT THE APPLICATION OF THE LAW WAS IN EFFECT LIMITED TO THE EXECUTIVE BRANCHES, AND THAT THE ,ESTABLISHMENTS" OF THE ACT WERE THOSE WHICH HAD THE EXECUTIVE CHARACTER. AS A MATTER OF CLASSIFICATION THE LIBRARY OF CONGRESS IS NOT AN EXECUTIVE ESTABLISHMENT. ITS NAME INDICATES ITS ORIGIN AND PURPOSE; CONTROL OF THE INSTITUTION IS VESTED IN A JOINT COMMITTEE OF CONGRESS. BUT THE LIBRARY, IN LATE YEARS AT LEAST, HAS CEASED TO HAVE THE CHARACTER OF AN INTIMATE ADJUNCT OF CONGRESS, AND HAS BECOME MORE AND MORE A PUBLIC INSTITUTION IN THE LARGER SENSE. MOREOVER, I DO NOT THINK IT WAS THE INTENTION OF CONGRESS TO LIMIT THE POSTMASTER-1GENERAL'S AGENCY WITH RESPECT TO ENVELOPES UPON A PRINCIPLE OF TECHNICAL CLASSIFICATION. THE OBJECTS AND PROPOSED BENEFITS OF THE SCHEME OF PURCHASE ARE SUCH AS TO APPLY NO LESS TO THE LIBRARY OF CONGRESS THAN TO THE PURELY EXECUTIVE ESTABLISHMENTS OF THE GOVERNMENT. THIS VIEW IS STRENGTHENED BY THE DIFFERENCE IN LANGUAGE BETWEEN THE ACT OF JUNE 26, 1906, AND THE PRECEDING ACT ON THE SAME SUBJECT, SECTION 96 OF THE ACT OF JANUARY 12, 1895 (28 STAT. 624). EXCEPT AS TO THE TERM OF THE CONTRACT, THE FORMER MAKES THE GENERAL PROVISION, BUT AFFECTS MERELY "HIS OWN (THE POSTMASTER-1GENERAL-S) AND OTHER DEPARTMENTS.' THE ADDED LANGUAGE IN THE LATTER ACT IS EVIDENCE TO MY MIND OF AN INTENTION TO GIVE THE LAW THE WILDEST POSSIBLE APPLICATION, TO PUT AN END TO ALL OPPORTUNITIES FOR EXEMPTION OR LIMITATION ON PURELY FORMAL GROUNDS. THE WORD "ESTABLISHMENT," THEN, AS IT STANDS IN THE ACT, MUST BE READ IN THE GENERAL SENSE AND WITH ITS BROAD MEANING. I AM OF OPINION AND DECIDE THAT THE LIBRARY OF CONGRESS IS SUCH AN ESTABLISHMENT. * * *"

THE WORD " GOVERNMENT" IN SAID STATUTE IS PRESUMED TO HAVE BEEN USED IN ITS ORDINARY MEANING. THE LIBRARY OF CONGRESS IS AN ADJUNCT OF CONGRESS AND IS THEREFORE A GOVERNMENT ESTABLISHMENT. IT IS IN MY OPINION INCLUDED WITHIN THE MEANING OF THE CLAUSE "ALL GOVERNMENT BUREAUS AND ESTABLISHMENTS" AS USED IN THE ACT OF JUNE 26, 1906. THE AUDITOR'S CONSTRUCTION OF SAID STATUTE IS APPROVED.

SEE, ALSO, 3 COMP. GEN. 945, WHERE, IN DISCUSSING THE SAID ACT OF JUNE 26, 1906, IT WAS SAID---

IT WILL BE NOTED THAT THIS STATUTE REQUIRES THE POSTMASTER GENERAL TO CONTRACT FOR ALL ENVELOPES FOR USE BY ALL EXECUTIVE DEPARTMENTS AND ALL GOVERNMENT BUREAUS AND ESTABLISHMENTS AND THE BRANCHES OF THE SERVICE COMING UNDER THEIR JURISDICTION.

IN AN UNPUBLISHED DECISION DATED OCTOBER 18, 1924, A-2683, IN CONNECTION WITH THE SAID ACT OF JUNE 26, 1906, IT WAS STATED---

* * * FURTHERMORE, THE UNITED STATES SUPREME COURT IS CLEARLY A GOVERNMENT ESTABLISHMENT WITHIN THE MEANING OF THE PROVISION HERE UNDER CONSIDERATION.

IT IS TO BE NOTED, TOO, THAT IN THE ACT OF AUGUST 7, 1939, 53 STAT. 1223, 28 U.S.C. 444, CREATING THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, THE SAID OFFICE IS SPECIFICALLY DESIGNATED AS "AN ESTABLISHMENT.'

AS STATED IN YOUR LETTER, IT WAS HELD IN DECISION OF AUGUST 6, 1941, B- 17617 (21 COMP. GEN. 105), THAT THE ACT OF JUNE 17, 1910, 36 STAT. 531, RELATING TO THE PROCUREMENT OF SUPPLIES "FOR THE EXECUTIVE DEPARTMENTS AND OTHER GOVERNMENT ESTABLISHMENTS IN WASHINGTON," IS OPERATIVE ONLY IN THE EXECUTIVE BRANCH OF THE GOVERNMENT. IN THE SAID DECISION THERE WAS CITED, AMONG OTHER DECISIONS, 23 COMP. DEC. 599, IN WHICH ARE SET FORTH THE REASONS FOR THE CONCLUSION THAT THE SAID ACT OF JUNE 17, 1910, AFFECTED ONLY THE EXECUTIVE BRANCH OF THE GOVERNMENT, SUCH REASONS BEING BASED CHIEFLY ON THE FACT THAT ANTECEDENT LEGISLATION HAD BEEN LIMITED SPECIFICALLY TO THE EXECUTIVE BRANCH.

MOREOVER, IT IS TO BE NOTED THAT THE SAID DECISION OF AUGUST 6, 1941, REFERRED TO IN YOUR LETTER, COVERED, ALSO, 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; AND IT WAS HELD THAT THE SAID SECTION, REQUIRING ADVERTISING IN CONNECTION WITH PURCHASES AND CONTRACTS FOR SUPPLIES AND SERVICES "IN ANY OF THE DEPARTMENTS OF THE GOVERNMENT," IS APPLICABLE TO "ALL ACTIVITIES OF THE GOVERNMENT NOT SPECIFICALLY EXEMPTED THEREFROM OR OTHERWISE PROVIDED BY LAW.' ACCORDINGLY, THE SAID DECISION OF AUGUST 6, 1941, IS NOT TO BE REGARDED IN ANY RESPECT AS REQUIRING OR SUPPORTING THE CONCLUSION STATED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER, THAT THE ACT OF JUNE 26, 1906, SUPRA,"LIKE THE ACT OF JUNE 17, 1910, WAS INTENDED TO APPLY ONLY TO THE EXECUTIVE ESTABLISHMENTS OF THE GOVERNMENT.'

SPECIFICALLY, YOU ARE ADVISED THAT THE PROVISIONS OF THE SAID ACT OF JUNE 26, 1906, ARE APPLICABLE TO THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS AND THAT ENVELOPES TO BE OBTAINED BY THAT OFFICE SHOULD BE OBTAINED IN CONFORMITY WITH THE REQUIREMENTS OF THE SAID ACT. IT IS SUGGESTED THAT RELIEF FROM THE DIFFICULTY OF OBTAINING ENVELOPES IN QUANTITIES SUITABLE TO YOUR NEEDS MIGHT BE OBTAINED BY REFERRING YOUR SPECIFIC PROBLEMS OR DIFFICULTIES TO THE POSTMASTER GENERAL. SEE 14 COMP. GEN. 854; 14 COMP. DEC. 325.