B-7303, DECEMBER 15, 1939, 19 COMP. GEN. 585

B-7303: Dec 15, 1939

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CASES ARE SUCH AS COULD BE OBTAINED UNDER SECTION 601 OF THE ECONOMY ACT OF JUNE 30. IS NOT NECESSARY TO AUTHORIZE SUCH TRANSFERS AND MERELY LIMITS THE AMOUNT THEREOF WHICH WOULD OTHERWISE BE LIMITED ONLY BY THE GENERAL LIMITATION OF SECTION 601. AUTHORIZING TRANSFERS "IF FUNDS ARE AVAILABLE THEREFOR.'. FUNDS SO TRANSFERRED ARE IN LARGE PART USED TO PAY FOR THE SERVICES OF PHYSICIANS AND CHEMISTS IN THE DEPARTMENT OF AGRICULTURE INCIDENT TO EXAMINING AND ANALYZING ALLEGED THERAPEUTIC DEVICES AND MEDICINES SOLD THROUGH THE MAILS. THE SERVICES OF SCIENTIFIC AND PROFESSIONAL EMPLOYEES OF OTHER DEPARTMENTS ARE REQUIRED AT TIMES. AS WHEN A MINING ENGINEER IS NEEDED TO EXAMINE MINING PROPERTY EXPLOITED IN CONNECTION WITH ALLEGED MAIL FRAUD SCHEMES.

B-7303, DECEMBER 15, 1939, 19 COMP. GEN. 585

APPROPRIATIONS - TRANSFERS - BETWEEN DEPARTMENTS AND ESTABLISHMENTS - NONNECESSITY FOR SPECIFIC PROVISION IN VIEW OF GENERAL AUTHORITY UNDER ECONOMY ACT SERVICES OF SCIENTIFIC AND PROFESSIONAL GOVERNMENT EMPLOYEES OBTAINED BY THE POST OFFICE DEPARTMENT THROUGH OTHER GOVERNMENT DEPARTMENTS FOR USE IN PARTICULAR MAIL FRAUD, ETC., CASES ARE SUCH AS COULD BE OBTAINED UNDER SECTION 601 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 417, PROVIDING FOR INTERDEPARTMENTAL WORK AND SERVICES, AND, HENCE, A PROVISO, SUCH AS CONTAINED IN THE POST OFFICE DEPARTMENT APPROPRIATION FOR 1940, THAT NOT EXCEEDING A SPECIFIED SUM SHALL BE AVAILABLE FOR TRANSFER TO OTHER DEPARTMENTS, ETC., FOR CHEMICAL AND OTHER INVESTIGATIONS, IS NOT NECESSARY TO AUTHORIZE SUCH TRANSFERS AND MERELY LIMITS THE AMOUNT THEREOF WHICH WOULD OTHERWISE BE LIMITED ONLY BY THE GENERAL LIMITATION OF SECTION 601, AUTHORIZING TRANSFERS "IF FUNDS ARE AVAILABLE THEREFOR.'

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL, DECEMBER 15, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 24, 1939, AS FOLLOWS:

THE APPROPRIATION ACT FOR THE FIELD SERVICE, POST OFFICE DEPARTMENT, FOR THE FISCAL YEAR 1940, CONTAINS THE FOLLOWING PROVISION UNDER " OFFICE OF CHIEF INSPECTOR.'

"TRAVELING AND MISCELLANEOUS EXPENSES: FOR TRAVELING EXPENSES OF INSPECTORS, INSPECTORS IN CHARGE, THE CHIEF POST-OFFICE INSPECTOR, AND THE ASSISTANT CHIEF POST-OFFICE INSPECTOR, AND FOR THE TRAVELING EXPENSES OF FOUR CLERKS PERFORMING STENOGRAPHIC AND CLERICAL ASSISTANCE TO POST-OFFICE INSPECTORS IN THE INVESTIGATION OF IMPORTANT FRAUD CASES; FOR TESTS, EXHIBITS, DOCUMENTS, PHOTOGRAPHS, OFFICE AND OTHER NECESSARY EXPENSES INCURRED BY POST-OFFICE INSPECTORS IN CONNECTION WITH THEIR OFFICIAL INVESTIGATIONS, INCLUDING NECESSARY MISCELLANEOUS EXPENSES OF DIVISION HEADQUARTERS, AND NOT TO EXCEED $500 FOR TECHNICAL AND SCIENTIFIC BOOKS AND OTHER BOOKS OF REFERENCE NEEDED IN THE OPERATION OF THE POST OFFICE INSPECTION SERVICE, $630,000: PROVIDED, THAT NOT EXCEEDING $28,000 OF THIS SUM SHALL BE AVAILABLE FOR TRANSFER BY THE POSTMASTER GENERAL TO OTHER DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS FOR CHEMICAL AND OTHER INVESTIGATIONS.'

THE PROVISO DESIGNATING PART OF THE APPROPRIATION FOR TRANSFER TO OTHER DEPARTMENTS FOR CHEMICAL AND OTHER INVESTIGATIONS HAS APPEARED IN SEVERAL APPROPRIATION ACTS SINCE 1932. FUNDS SO TRANSFERRED ARE IN LARGE PART USED TO PAY FOR THE SERVICES OF PHYSICIANS AND CHEMISTS IN THE DEPARTMENT OF AGRICULTURE INCIDENT TO EXAMINING AND ANALYZING ALLEGED THERAPEUTIC DEVICES AND MEDICINES SOLD THROUGH THE MAILS, RENDERING EXPERT OPINIONS CONCERNING THE EFFICACY OF SUCH DEVICES AND MEDICINES, AND TESTIFYING AS TO THE FINDINGS AT FRAUD HEARINGS BEFORE THE SOLICITOR OF THIS DEPARTMENT; ALSO FOR NECESSARY EXPENSES INCURRED IN CONNECTION WITH THESE FUNCTIONS. THE SERVICES OF SCIENTIFIC AND PROFESSIONAL EMPLOYEES OF OTHER DEPARTMENTS ARE REQUIRED AT TIMES, AS WHEN A MINING ENGINEER IS NEEDED TO EXAMINE MINING PROPERTY EXPLOITED IN CONNECTION WITH ALLEGED MAIL FRAUD SCHEMES.

THE SERVICES OF EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE ARE USED REGULARLY IN CONNECTION WITH OUR MEDICAL FRAUD CASES. ARRANGEMENTS FOR SUCH SERVICES AND FOR SERVICES OF EMPLOYEES OF OTHER DEPARTMENTS WHEN REQUIRED ARE MADE THROUGH THE DEPARTMENT AND NOT DIRECTLY BY THE POST OFFICE INSPECTORS WHO CONDUCT THE RELATED INVESTIGATIONS.

IT HAS BEEN SUGGESTED THAT THE INCLUSION OF A PROVISION IN THE ANNUAL ACT SPECIFICALLY PROVIDING FOR THE TRANSFER OF FUNDS AS DESCRIBED MAY BE UNNECESSARY BECAUSE OF THE PROVISIONS OF THE ECONOMY ACT, SECTION 601, PARAGRAPH 7 (31 U.S.C. 686). THAT PART OF THE ECONOMY ACT PROVIDES THAT:

"ANY EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT OF THE GOVERNMENT, OR ANY BUREAU OR OFFICE THEREOF, IF FUNDS ARE AVAILABLE THEREFOR AND IF IT IS DETERMINED BY THE HEAD OF SUCH EXECUTIVE DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE TO BE IN THE INTEREST OF THE GOVERNMENT SO TO DO, MAY PLACE ORDERS WITH ANY OTHER SUCH DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE FOR MATERIALS, SUPPLIES, EQUIPMENT, WORK, OR SERVICES, OF ANY KIND THAT SUCH REQUISITIONED FEDERAL AGENCY MAY BE IN A POSITION TO SUPPLY OR EQUIPPED TO RENDER, AND SHALL PAY PROMPTLY BY CHECK TO SUCH FEDERAL AGENCY AS MAY BE REQUISITIONED, UPON ITS WRITTEN REQUEST, EITHER IN ADVANCE OR UPON THE FURNISHING OR PERFORMANCE THEREOF, ALL OR PART OF THE ESTIMATED OR ACTUAL COST THEREOF AS DETERMINED BY SUCH DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE AS MAY BE REQUISITIONED; BUT PROPER ADJUSTMENTS ON THE BASIS OF THE ACTUAL COST OF THE MATERIALS, SUPPLIES, OR EQUIPMENT FURNISHED, OR WORK OR SERVICES PERFORMED, PAID FOR IN ADVANCE SHALL BE MADE AS MAY BE AGREED UPON BY THE DEPARTMENTS, ESTABLISHMENTS, BUREAUS, OR OFFICES CONCERNED: PROVIDED, HOWEVER, THAT IF SUCH WORK OR SERVICES CAN BE AS CONVENIENTLY OR MORE CHEAPLY PERFORMED BY PRIVATE AGENCIES SUCH WORK SHALL BE LET BY COMPETITIVE BIDS TO SUCH PRIVATE AGENCIES. BILLS RENDERED, OR REQUESTS FOR ADVANCE PAYMENTS MADE, PURSUANT TO ANY SUCH ORDER, SHALL NOT BE SUBJECT TO AUDIT OR CERTIFICATION IN ADVANCE OF PAYMENT.'

YOUR DECISION IS REQUESTED AT AN EARLY DATE WHETHER IN VIEW OF THE QUOTED PROVISIONS OF THE ECONOMY ACT IT IS NECESSARY TO THE CONTINUANCE OF THE DESIRED AUTHORITY FOR TRANSFER OF FUNDS TO INCLUDE IN THE 1941 APPROPRIATION ACT FOR THIS DEPARTMENT THE PROVISO CONTAINED IN THE 1940 ACT.

THE SERVICES EMBRACED BY THE PROVISO IN QUESTION ARE SUCH AS COULD BE OBTAINED BY YOUR DEPARTMENT UNDER THE PROVISIONS OF SECTION 601 OF THE ECONOMY ACT, 47 STAT. 417, QUOTED IN YOUR LETTER, SUPRA. THE ONLY PURPOSE, THEREFORE, WHICH THE PROVISO SERVES, IS TO LIMIT OR CIRCUMSCRIBE THE AMOUNT WHICH CAN BE USED "FOR CHEMICAL AND OTHER INVESTIGATIONS" REQUIRED BY THE POST OFFICE DEPARTMENT TO BE PERFORMED BY OTHER DEPARTMENTS OR AGENCIES IN CONNECTION WITH THE OPERATION OF THE " OFFICE OF CHIEF INSPECTOR"--- THE QUOTED PROVISIONS OF THE ECONOMY ACT NOT CONTAINING ANY SPECIFIC LIMITATIONS AS TO THE AMOUNT OF SERVICES, ETC., WHICH THE REQUISITIONING DEPARTMENT OR AGENCY MAY REQUIRE BUT ONLY SUCH GENERAL LIMITATIONS AS ARE COUCHED IN THE WORDS,"IF FUNDS ARE AVAILABLE THEREFOR.'

ACCORDINGLY, YOU ARE ADVISED THAT, IN VIEW OF THE QUOTED PROVISIONS OF THE ECONOMY ACT OF JUNE 30, 1932, THE EXISTENCE OF A PROVISO SUCH AS THAT QUOTED FROM THE 1940 APPROPRIATION ACT IS NOT NECESSARY TO THE CONTINUANCE OF YOUR AUTHORIZATION TO OBTAIN THE SERVICES OF "OTHER DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS FOR CHEMICAL AND OTHER INVESTIGATIONS," BUT WHETHER THE CONGRESS WILL DESIRE TO CONTINUE OR RETAIN THE LIMITATION AS TO THE AMOUNT WHICH MAY BE EXPENDED FOR SUCH SERVICES IS, OF COURSE, A MATTER FOR DECISION BY THAT BODY.