B-67241, JULY 31, 1947, 27 COMP. GEN. 48

B-67241, JULY 31, 1947, 27 COMP. GEN. 48

NEWSPAPER ADVERTISING RESTRICTIONS - APPLICABILITY TO ADVERTISEMENTS RESPECTING AVAILABILITY OF SURPLUS PROPERTY FOR SALE THE PROVISIONS OF SECTION 3828, REVISED STATUTES, REQUIRING THE ADVANCE WRITTEN APPROVAL OF THE HEAD OF THE DEPARTMENT FOR NEWSPAPER ADVERTISING, ARE NOT FOR APPLICATION WHERE ADVERTISING RESPECTING THE AVAILABILITY OF SURPLUS PROPERTY FOR SALE 30 DAYS BEFORE ITS ABANDONMENT OR DESTRUCTION IS PLACED IN LOCAL NEWSPAPERS BY CONTRACTING OFFICERS OF A DISPOSAL AGENCY PURSUANT TO THE MANDATORY ADVERTISING REQUIREMENTS OF REGULATION--- HAVING THE FORCE AND EFFECT OF LAW--- ISSUED IN FURTHERANCE OF THE PROVISIONS OF SECTION 11 (E) OF THE SURPLUS PROPERTY ACT OF 1944, AS AMENDED, AUTHORIZING THE SURPLUS PROPERTY ADMINISTRATOR TO PRESCRIBE REGULATIONS FOR "UNIFORM AND WIDE PUBLIC NOTICE CONCERNING SURPLUS PROPERTY AVAILABLE FOR SALE.'

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, JULY 31, 1947:

THERE HAS BEEN RECEIVED A LETTER DATED JUNE 17, 1947, FROM THE UNDER SECRETARY OF WAR, AS FOLLOWS:

IN CONNECTION WITH THE ADVERTISEMENT IN NEWSPAPERS OF SALES OF SALVAGE BY THE WAR DEPARTMENT, THE QUESTION HAS ARISEN AS TO WHETHER OR NOT THE PROVISIONS OF SECTION 3828 OF THE REVISED STATUTES, REQUIRING THE PRIOR WRITTEN AUTHORITY OF THE HEAD OF THE DEPARTMENT FOR NEWSPAPER ADVERTISING, ARE APPLICABLE.

ATTENTION IS INVITED TO THE PROVISIONS OF SECTION 11 (E) OF THE SURPLUS PROPERTY ACT OF 1944 (58 STAT. 770; 50 U.S.C. APP. 1620 (E) (, AS AMENDED BY THE ACT OF 18 SEPTEMBER 1945, 59 STAT. 33:

"THE BOARD ( SURPLUS PROPERTY ADMINISTRATOR) SHALL PRESCRIBE REGULATIONS NECESSARY TO PROVIDE, SO FAR AS PRACTICABLE, FOR UNIFORM AND ADEQUATE TIME INTERVALS BETWEEN NOTICE AND SALE SO THAT ALL INTERESTED PURCHASERS MAY HAVE A FAIR OPPORTUNITY TO BUY.'

PURSUANT TO THE ABOVE STATUTORY AUTHORITY THE SURPLUS PROPERTY ADMINISTRATOR HAS PROMULGATED SPA REGULATION NO. 19, DATED 7 DECEMBER 1945, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"SEC. 8319.6 ABANDONMENT OR DESTRUCTION--- (A) NOTICE OF PROPOSED ABANDONMENT OR DESTRUCTION * * * PROPERTY SHALL NOT BE DESTROYED OR ABANDONED BY ANY OWNING OR DISPOSAL AGENCY UNTIL THIRTY (30) DAYS AFTER PUBLICATION OF NOTICE OF SUCH PROPOSED DESTRUCTION OR ABANDONMENT. SUCH NOTICE SHALL CONTAIN A GENERAL DESCRIPTION OF THE PROPERTY TO BE DESTROYED OR ABANDONED AND SHALL BE PUBLISHED ONCE IN A NEWSPAPER HAVING GENERAL CIRCULATION IN THE AREA IN WHICH THE PROPERTY IS LOCATED. * * *"

IN ACCORDANCE WITH THE ABOVE REGULATIONS, MANDATORILY REQUIRING NEWSPAPER ADVERTISING, CONTRACTING OFFICERS IN DISPOSING OF SALVAGE PROCURED SUCH ADVERTISING. IT APPEARS THAT IN SOME INSTANCES ACTION HAS BEEN TAKEN WITHOUT THE PRIOR APPROVAL WHICH CERTAINLY UNDER OTHER CIRCUMSTANCES MAY BE REQUIRED BY THE PROVISIONS OF SECTION 3828 OF THE REVISED STATUTES. WHILE NOT ENTIRELY FREE FROM DOUBT, IT IS HOWEVER, THE VIEW OF THE DEPARTMENT THAT UNDER THE CIRCUMSTANCES RELATING TO THE NEWSPAPER ADVERTISEMENTS UNDER DISCUSSION HEREIN, THERE IS FOR CONSIDERATION THAT AS THE REGULATION ( SPA REGULATION NO. 19, SUPRA), PROMULGATED AS REQUIRED BY, AND IN IMPLEMENTATION OF, THE ABOVE QUOTED PROVISIONS OF THE SURPLUS PROPERTY ACT OF 1944, AS AMENDED, MAKES NEWSPAPER ADVERTISING MANDATORY, SUCH REQUIREMENT MAY BE VIEWED AS A LEGISLATIVE REGULATION, AND, THEREFORE, SECTION 3828, SUPRA, MAY NOT BE APPLICABLE IN THESE CASES. THIS REGARD, YOUR ATTENTION IS INVITED TO THE DECISION OF FIRST COMPTROLLER LAWRENCE (5 LAWRENCE COMP. DEC. 389, 390) HOLDING THAT SECTION 3828 OF THE REVISED STATUTES DID NOT APPLY TO ADVERTISEMENTS PUBLISHED BY ORDER OF A COLLECTOR OF INTERNAL REVENUE UNDER AUTHORITY OF SECTION 3460 OF THE REVISED STATUTES, WHICH REQUIRED NEWSPAPER ADVERTISEMENTS. IN THE DECISION CITED THE COMPTROLLER HELD:

"BUT, EVIDENTLY, SECTION 3828 CANNOT APPLY TO SUCH NOTICES. THE STATUTE EXPRESSLY REQUIRES THE COLLECTOR TO GIVE THE NOTICES. THE DISCRETION IS GENERALLY VESTED IN HIM TO SELECT THE NEWSPAPER IN WHICH TO PUBLISH, BUT THE STATUTE PERMITS NO DISCRETION TO OMIT THE PUBLICATION. SECTION 3828 CAN ONLY APPLY WHEN BY LAW THE HEAD OF A DEPARTMENT CAN EXERCISE A DISCRETION, EITHER IN THE SELECTION OF A NEWSPAPER IN WHICH TO PUBLISH OR IN DETERMINING WHETHER A NOTICE SHALL OR SHALL NOT BE PUBLISHED.'

IN VIEW OF THE FACT THAT DISBURSING OFFICERS ARE RAISING QUESTIONS AS TO THE PROPRIETY OF MAKING PAYMENT IN THESE CASES FOR NEWSPAPER ADVERTISING OBTAINED WITHOUT THE PRIOR WRITTEN AUTHORITY OF THE HEAD OF THE DEPARTMENT, AND IN ORDER THAT APPROPRIATE INSTRUCTIONS MAY BE ISSUED IN THE MATTER, YOUR DECISION IS REQUESTED AS TO WHETHER THE PROVISIONS OF SECTION 3828 OF THE REVISED STATUTES ARE APPLICABLE TO NEWSPAPER ADVERTISING OF DISPOSITIONS OF SALVAGE UNDER THE SURPLUS PROPERTY ACT OF 1944, AS AMENDED, AND THE ABOVE REFERRED TO REGULATIONS PROMULGATED UNDER AUTHORITY THEREOF, SO AS TO REQUIRE ADVANCE APPROVAL OF SUCH NEWSPAPER ADVERTISING BY THE SECRETARY OF WAR.

SURPLUS PROPERTY ADMINISTRATION REGULATION NO. 19, QUOTED IN PART, IN THE LETTER OF JUNE 17, PROVIDES FURTHER AS FOLLOWS:

* * * SUCH NOTICE SHALL CONTAIN AN OFFERING TO SELL THE PROPERTY OR TO DONATE IT TO ELIGIBLE DONEES UNDER SEC. 8319.4. A COPY OF SUCH NOTICE SHALL BE GIVEN TO THE SURPLUS PROPERTY ADMINISTRATOR AT THE BEGINNING OF SUCH THIRTY (30) DAY PERIOD. THE SURPLUS PROPERTY ADMINISTRATOR FINDS THAT SUCH NOTICE WILL CONSTITUTE THE REASONABLE EFFORTS REQUIRED BY SECTION 13 (B) OF THE SURPLUS PROPERTY ACT TO DISPOSE OF SUCH PROPERTY OTHERWISE THAN BY DESTRUCTION.

WHILE THE NOTICE CONTEMPLATED UNDER THE SAID REGULATION HAS TO DO WITH THE ABANDONMENT OR DESTRUCTION OF SURPLUS PROPERTY, ITS PURPOSE IS TO NOTIFY THE PUBLIC OF ITS AVAILABILITY FOR SALE. HENCE, THE REGULATION IS IN FURTHERANCE OF THE AUTHORITY VESTED IN THE SURPLUS PROPERTY ADMINISTRATOR UNDER SECTION 11 (E) OF THE SURPLUS PROPERTY ACT, AS AMENDED, 59 STAT. 533, QUOTED IN THE AFORESAID LETTER, TO PRESCRIBE REGULATIONS "FOR UNIFORM AND WIDE PUBLIC NOTICE CONCERNING SURPLUS PROPERTY AVAILABLE FOR SALE.' A REGULATION OF SUCH TYPE, MADE PURSUANT TO OR IN EXECUTION OF A STATUTE, IS QUASI-LEGISLATIVE AND HAS BEEN HELD TO BECOME A PART OF THE LAW AND TO BE OF THE SAME FORCE AS THE STATUTE ITSELF. 21 COMP. DEC. 482; 18 COMP. GEN. 907. THUS, IT FOLLOWS THAT IT IS MANDATORY UPON THE OWNING OR DISPOSAL AGENCY TO ADVERTISE THE AVAILABILITY FOR SALE OF SURPLUS PROPERTY 30 DAYS BEFORE ITS CONTEMPLATED ABANDONMENT OR DESTRUCTION.

SINCE THE ADVERTISING HEREIN QUESTION IS PLACED PURSUANT TO THE AUTHORITY OF A SPECIFIC STATUTE, AND AS NO DISCRETION IS VESTED IN THE DISPOSAL AGENCY AS TO WHETHER OR NOT THERE SHALL BE ADVERTISING, THE PROVISIONS OF SECTION 3828 OF THE REVISED STATUTES--- WHICH OTHERWISE WOULD REQUIRE THE WRITTEN APPROVAL BY THE HEAD OF DEPARTMENT--- ARE NOT FOR APPLICATION.