A-20836, DECEMBER 31, 1927, 7 COMP. GEN. 405

A-20836, DECEMBER 31, 1927, 7 COMP. GEN. 405

ADVERTISING - PURCHASES OF SUPPLIES FOR THE FURNISHING OF ALLOWANCES IN KIND AS PART OF COMPENSATION THE AUTHORITY GRANTED IN SECTION 3 OF THE ACT OF MARCH 2, 1926, 44 STAT. 161, FOR THE FISCAL YEAR 1927, AND SECTION 3 OF THE ACT OF JANUARY 26, 1927, 44 STAT. 1052, FOR THE FISCAL YEAR 1928, TO THE HEADS OF DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS TO CONTINUE TO FURNISH FIELD EMPLOYEES WITH THE VARIOUS ITEMS OF MAINTENANCE THEREIN MENTIONED AS A PART OF COMPENSATION, DOES NOT PERMIT OPEN-MARKET PURCHASES BY THE OFFICERS OR EMPLOYEES WITHOUT REGARD TO COMPETITIVE BIDDING, BUT THE LAW CONTEMPLATES ONLY A LAWFUL PROCEDURE AND COMPLIANCE WITH THE GENERAL PROVISIONS OF LAW GOVERNING THE PURCHASE OF SUPPLIES FOR THE USE OF THE GOVERNMENT.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, DECEMBER 31, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 5, 1927, REQUESTING REVIEW OF SETTLEMENT K-11614-J, SUSPENDING IN THE ACCOUNTS OF JOHN W. SNOOK, WARDEN OF THE UNITED STATES PENITENTIARY, ATLANTA, GA., FOR THE QUARTER ENDED DECEMBER 31, 1926, ITEMS FOR SPECIAL SUPPLIES SUCH AS MEATS, FISH, AND GROCERIES, PURCHASED IN THE OPEN MARKET FOR THE PERSONAL USE OF THE WARDEN AND DEPUTY WARDEN.

IN DECISION OF FEBRUARY 24, 1926, A-9884, ADDRESSED TO THE WARDEN OF THE UNITED STATES PENITENTIARY AT LEAVENWORTH, KANS., IT WAS HELD THAT THE APPROPRIATION "UNITED STATES PENITENTIARY, LEAVENWORTH, KANS., SUBSISTENCE, 1925," ACT OF MAY 28, 1924, 43 STAT. 221, WHICH INCLUDED AN ITEM FOR "SUPPLIES FROM THE PRISON STORES FOR WARDEN, DEPUTY WARDEN, AND PHYSICIAN," WAS NOT AVAILABLE FOR PURCHASE OF SPECIAL SUPPLIES FOR SUCH OFFICERS IN THE OPEN MARKET WITHOUT REGARD TO COMPETITIVE BIDDING AND OTHER COMPLIANCE WITH GENERAL LAWS RELATING TO PURCHASES FOR THE GOVERNMENT, AND THE WARDEN WAS GIVEN CREDIT FOR THE AMOUNT OF SUCH PURCHASES ONLY TO THE END OF THE THEN CURRENT QUARTER, MARCH 31, 1926. THE RULE THERE ANNOUNCED WAS OF COURSE APPLICABLE TO THE PENITENTIARY AT ATLANTA UNDER THE WORDING OF THE APPROPRIATION THEREFOR, VIZ,"FOR SUBSISTENCE, INCLUDING THE SAME OBJECTS SPECIFIED UNDER THIS HEAD FOR THE PENTITENTIARY AT LEAVENWORTH, KANS.' THE CORRESPONDING APPROPRIATIONS FOR THE FISCAL YEARS 1927 (ACT OF APRIL 29, 1926, 44 STAT. 347-8) AND 1928 (ACT OF FEBRUARY 24, 1927, 44 STAT.1198) DO NOT CONTAIN THE PROVISION FOR FURNISHING SUPPLIES TO THE WARDEN, DEPUTY WARDEN, AND PHYSICIAN. ACCORDINGLY, THE PRACTICE AT ATLANTA UNDER WHICH THE WARDEN AND DEPUTY WARDEN WERE PERMITTED TO PURCHASE THEIR OWN SUPPLIES IN THE OPEN MARKET SHOULD HAVE BEEN DISCONTINUED AT LEAST FROM AND AFTER JULY 1, 1926, IN ACCORDANCE WITH SAID DECISION.

IT IS NOW APPARENTLY CONTENDED THAT THE FOLLOWING GENERAL PROVISION OF LAW CONTAINED IN SECTION 3 OF THE ACT OF MARCH 2, 1926, 44 STAT. 161, FOR THE FISCAL YEAR 1927, WOULD PERMIT THE PURCHASE IN THE OPEN MARKET BY THE WARDEN AS INDICATED:

THE HEAD OF AN EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT, WHERE, IN HIS JUDGMENT, CONDITIONS OF EMPLOYMENT REQUIRE IT, MAY CONTINUE TO FURNISH CIVILIANS EMPLOYED IN THE FIELD SERVICE WITH QUARTERS, HEAT, LIGHT, HOUSEHOLD EQUIPMENT, SUBSISTENCE, AND LAUNDRY SERVICE; AND APPROPRIATIONS FOR THE FISCAL YEAR 1927 OF THE CHARACTER HERETOFORE USED FOR SUCH PURPOSES ARE HEREBY MADE AVAILABLE THEREFORE: PROVIDED, THAT THE REASONABLE VALUE OF SUCH ALLOWANCES SHALL BE DETERMINED AND CONSIDERED AS PART OF THE COMPENSATION IN FIXING THE SALARY RATE OF SUCH CIVILIANS.

SEE ALSO A SIMILAR PROVISION FOR THE FISCAL YEAR 1928, SECTION 3 OF THE ACT OF JANUARY 26, 1927, 44 STAT. 1052.

THERE IS NOTHING IN THESE GENERAL PROVISIONS OF LAW TO AUTHORIZE PURCHASES OF SUBSISTENCE OR MAINTENANCE SUPPLIES IN THE OPEN MARKET WITHOUT REGARD TO COMPETITIVE BIDDING OR OTHER COMPLIANCE WITH GENERAL PROVISIONS OF LAW CONTROLLING PURCHASES OF SUPPLIES FOR THE USE OF THE GOVERNMENT, NOR TO AUTHORIZE CONTINUATION OF SUCH AN UNLAWFUL PRACTICE THERETOFORE OBTAINING. THE PROVISIONS OF LAW AUTHORIZING THE HEADS OF DEPARTMENTS AND OFFICES TO CONTINUE TO FURNISH FIELD EMPLOYEES THE ITEMS OF MAINTENANCE THEREIN MENTIONED CONTEMPLATE A LAWFUL AND REGULAR PROCEDURE WITH FULL COMPLIANCE WITH ANY OTHER LAW NOT IN CONFLICT. THERE IS NO CONFLICT BETWEEN THESE TWO ANNUAL PROVISIONS OF LAW AND OTHER LAWS CONTROLLING GOVERNMENTAL PURCHASES WHICH ARE FOR APPLICATION WITH RESPECT TO PURCHASES OF THE SUPPLIES USED BY THE GOVERNMENT IN FURNISHING THE FIELD EMPLOYEES THE ITEMS OF MAINTENANCE MENTIONED IN THE STATUTE.

YOU STATE,"AS A MATTER OF PRECAUTION AND TO AVOID ANY MISUNDERSTANDING, INSTRUCTIONS HAVE BEEN ISSUED TO THE SEVERAL WARDENS THAT ALL SUBSISTENCE SUPPLIES ARE TO BE ISSUED THROUGH THE STOREKEEPER.' SUCH INSTRUCTIONS ARE NECESSARY NOT ONLY AS A MATTER OF PRECAUTION AND TO AVOID ANY MISUNDERSTANDING BUT ALSO AS PROVIDING A PROPER AND LAWFUL PROCEDURE.

THE POSITION OF WARDEN AT ATLANTA APPEARS TO HAVE BEEN ALLOCATED AND THE SALARY RATE FIXED, EFFECTIVE JANUARY 1, 1926, AT $6,000 PER ANNUM ($4,200 CASH AND $1,800 MAINTENANCE ALLOWANCE), EFFECTIVE JULY 1, 1927, AT $6,500 PER ANNUM ($4,400 CASH AND $2,100 MAINTENANCE ALLOWANCE). THERE HAS NOT BEEN SUBMITTED TO THIS OFFICE SUFFICIENT EVIDENCE FROM WHICH TO DETERMINE THAT THE VALUE OF THE ITEMS OF MAINTENANCE, INCLUDING THE SUBSISTENCE SUPPLIES, FURNISHED THE WARDEN, HAS BEEN PROPERLY DETERMINED PURSUANT TO THE PROVISIONS OF SECTION 3 OF THE ACT OF MARCH 2, 1926, SUPRA. IT IS UNDERSTOOD, HOWEVER, THAT ADMINISTRATIVE REGULATIONS RECENTLY HAVE BEEN ISSUED PRESCRIBING A PROCEDURE FOR THE ACCOUNTING FOR SUBSISTENCE FURNISHED OFFICERS AND EMPLOYEES AT UNITED STATES PENITENTIARIES AND FOR DETERMINING THE REASONABLE VALUE THEREOF TO BE CHARGED AS A PART OF COMPENSATION. IF AND WHEN THIS SHOWING HAS BEEN MADE FOR PERIODS ON AND AFTER JULY 1, 1926, AS TO SUBSISTENCE AND OTHER MAINTENANCE ALLOWANCES FURNISHED THE WARDEN AND ALL OTHER OFFICERS AND EMPLOYEES UNDER THE UNITED STATES PENITENTIARIES, WHO ARE ENTITLED TO MAINTENANCE AS PART OF COMPENSATION, THERE WILL BE FOR FURTHER CONSIDERATION THE REMOVAL OF THE SUSPENSIONS MADE IN THE ACCOUNTS BY THIS OFFICE.