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B-45101, JANUARY 4, 1951, 30 COMP. GEN. 266

B-45101 Jan 04, 1951
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THERE WAS BROUGHT TO THE ATTENTION OF THE THEN SECRETARY OF THE ARMY THE POSSIBILITY THAT THE APPLICATION OF THE PROCEDURES SET FORTH IN CHAPTER 4 OF WAR DEPARTMENT TECHNICAL MANUAL 14-504. DISBURSING OFFICERS AND PROCUREMENT OFFICERS ARE AUTHORIZED TO MAKE REQUESTS OF VENDORS AND CONTRACTORS TO SUBMIT INVOICES NOT PREVIOUSLY SUBMITTED FOR SUPPLIES OR SERVICES FURNISHED THE GOVERNMENT. YOU POINTED OUT THAT THE REPORTED PROCEDURES ARE BASED UPON AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY TO THE EFFECT THAT SUCH PRACTICE IS NOT IN VIOLATION OF THE SPIRIT OR THE LETTER OF 18 U.S.C. 283 (THEN 18 U.S.C. 198) WHICH. THE PERTINENT PROVISIONS OF SAID SECTION AS NOW CONSTITUTED ARE AS FOLLOWS: WHOEVER.

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B-45101, JANUARY 4, 1951, 30 COMP. GEN. 266

CLAIMS - AIDING OR ASSISTING IN PROSECUTION - SOLICITATION OF INVOICES AND SUPPORTING DOCUMENTS ACTIONS BY GOVERNMENT OFFICERS AND EMPLOYEES TO SECURE INVOICES AND SUPPORTING DOCUMENTS FROM VENDORS AND CONTRACTORS IN ORDER THAT PROMPT PAYMENT BE MADE OF CURRENT LEGITIMATE CLAIMS FOR SERVICES AND SUPPLIES FURNISHED THE GOVERNMENT PURSUANT TO PROPER PROCUREMENT METHODS MAY BE REGARDED AS AID OR ASSISTANCE GIVEN IN DISCHARGE OF OFFICIAL DUTIES SO AS TO EXEMPT SUCH OFFICERS AND EMPLOYEES FROM CRIMINAL PENALTIES PRESCRIBED BY 18 U.S.C. 283 FOR GOVERNMENT OFFICERS AND EMPLOYEES WHO AID OR ASSIST IN THE PROSECUTION OF CLAIMS AGAINST THE UNITED STATES.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE ARMY, JANUARY 4, 1951:

BY OFFICE LETTER OF SEPTEMBER 20, 1949, B-45101, THERE WAS BROUGHT TO THE ATTENTION OF THE THEN SECRETARY OF THE ARMY THE POSSIBILITY THAT THE APPLICATION OF THE PROCEDURES SET FORTH IN CHAPTER 4 OF WAR DEPARTMENT TECHNICAL MANUAL 14-504, DATED DECEMBER 1, 1943, AS CHANGED MARCH 9, 1945, MIGHT RESULT IN THE INVITING OF CLAIMS AGAINST THE UNITED STATES IN APPARENT CONTRAVENTION OF THE PROVISIONS OF 18 U.S.C. 283, WHICH PRESCRIBE CERTAIN CRIMINAL PENALTIES IN THE CASE OF GOVERNMENT OFFICERS AND EMPLOYEES WHO AID OR ASSIST IN THE PROSECUTION OF CLAIMS AGAINST THE UNITED STATES. UNDER THE PROCEDURES REFERRED TO, DISBURSING OFFICERS AND PROCUREMENT OFFICERS ARE AUTHORIZED TO MAKE REQUESTS OF VENDORS AND CONTRACTORS TO SUBMIT INVOICES NOT PREVIOUSLY SUBMITTED FOR SUPPLIES OR SERVICES FURNISHED THE GOVERNMENT. UNDER DATE OF JUNE 7, 1950, IN REPLY TO THE LETTER OF SEPTEMBER 20, 1949, YOU POINTED OUT THAT THE REPORTED PROCEDURES ARE BASED UPON AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY TO THE EFFECT THAT SUCH PRACTICE IS NOT IN VIOLATION OF THE SPIRIT OR THE LETTER OF 18 U.S.C. 283 (THEN 18 U.S.C. 198) WHICH, BY ITS LANGUAGE, EXCLUDES FROM ITS OPERATIONS ANY PRACTICE FOLLOWED IN THE PROPER CONDUCT OF OFFICIAL DUTIES.

THE PERTINENT PROVISIONS OF SAID SECTION AS NOW CONSTITUTED ARE AS FOLLOWS:

WHOEVER, BEING AN OFFICER OR EMPLOYEE OF THE UNITED STATES OR ANY DEPARTMENT OR AGENCY THEREOF, OR OF THE SENATE OR HOUSE OF REPRESENTATIVES, ACTS AS AN AGENT OR ATTORNEY FOR PROSECUTING ANY CLAIM AGAINST THE UNITED STATES, OR AIDS OR ASSISTS IN THE PROSECUTION OR SUPPORT OF ANY SUCH CLAIM OTHERWISE THAN IN THE PROPER DISCHARGE OF HIS OFFICIAL DUTIES, OR RECEIVES ANY GRATUITY, OR ANY SHARE OF OR INTEREST IN ANY SUCH CLAIM IN CONSIDERATION OF ASSISTANCE IN THE PROSECUTION OF SUCH CLAIM, SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH.

WHILE THIS OFFICE IS WITHOUT JURISDICTION TO DETERMINE AUTHORITATIVELY WHETHER OR NOT THE PENAL PROVISIONS OF A STATUTE HAVE BEEN VIOLATED (20 COMP. GEN. 488), IT HAS ALWAYS CONSIDERED IT TO BE ITS DUTY TO REPORT APPARENT VIOLATIONS TO THE HEAD OF THE AGENCY CONCERNED, AND, IN SOME CASES, TO THE ATTORNEY GENERAL FOR APPROPRIATE ACTION.

IN THE CASE OF THE PROVISIONS HERE INVOLVED, 18 U.S.C. 283, THE SPECIFIC TERMS OF THE STATUTE EXEMPT GOVERNMENT OFFICERS OR EMPLOYEES FROM PENAL LIABILITY IN CASES WHERE THE AID OR ASSISTANCE GIVEN REPRESENTS A DISCHARGE OF PROPER OFFICIAL DUTIES. IT WOULD APPEAR THAT REASONABLE STEPS LOOKING TO THE PROMPT PAYMENT OF CURRENT LEGITIMATE CLAIMS FOR SERVICES AND SUPPLIES FURNISHED THE GOVERNMENT PURSUANT TO PROPER PROCUREMENT METHODS--- WHICH PAYMENT IS POSSIBLE ONLY IF INVOICES AND SUPPORTING PAPERS RELATING TO OPEN ACCOUNTS OF VENDORS AND CONTRACTORS ARE TIMELY SUBMITTED--- CLEARLY WOULD BE WITHIN THE SCOPE OF PROPER OFFICIAL DUTIES.

ACCORDINGLY, YOU ARE ADVISED THAT THIS OFFICE WILL NOT QUESTION ACTIONS BY GOVERNMENT OFFICERS AND EMPLOYEES IN SEEKING THE SUBMISSION OF INVOICES AND SUPPORTING PAPERS SO THAT TIMELY PAYMENT MAY BE MADE OF OPEN ACCOUNTS WHERE THERE IS NO QUESTION OF THE GOVERNMENT'S LIABILITY NOR DISPUTE AS TO THE FACTS, AS DISTINGUISHED FROM UNLIQUIDATED AND DISPUTED ACCOUNTS. HOWEVER, APPROPRIATE ACTION NECESSARILY WILL CONTINUE TO BE TAKEN BY THIS OFFICE IN THOSE INSTANCES WHERE THE ACTION OF THE OFFICER OR EMPLOYEE INVOLVED APPEARS TO GO BEYOND A PROPER CONCEPT OF THE DISCHARGE OF OFFICIAL DUTIES.

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