B-199801 L/M, OCT 21, 1980

B-199801 L/M, OCT 21, 1980

PRECIS-UNAVAILABLE

WALTER F. MONDALE, PRESIDENT OF THE SENATE:

PURSUANT TO THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. SEC. 236 (1976), WE HAVE THE HONOR TO SUBMIT OUR REPORT AND RECOMMENDATION TO THE CONGRESS CONCERNING THE CLAIM OF THE NEWS TRIBUNE FOR ADVERTISING PROVIDED FOR THE CIVILIAN PERSONNEL OFFICE OF THE NINTH INFANTRY DIVISION AND FORT LEWIS. WE REQUEST THAT YOU PRESENT THE REPORT TO THE UNITED STATES SENATE.

AN IDENTICAL REPORT IS BEING SENT TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES.

CONGRESS OF THE UNITED STATES:

THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. SEC. 236 (1976), PROVIDES THAT:

"WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON."

IN ACCORDANCE WITH THAT ACT, WE MAKE THE FOLLOWING REPORT AND RECOMMENDATION ON THE CLAIM OF THE NEWS TRIBUNE FOR $34.32.

THE CLAIM ARISES FROM ADVERTISEMENTS PRINTED IN THE NEWSPAPER. ORDERS FOR THE ADVERTISEMENTS WERE PLACED BY AN EMPLOYEE OF THE CIVILIAN PERSONNEL OFFICE OF THE NINTH INFANTRY DIVISION AND FORT LEWIS, FORT LEWIS, WASHINGTON, WITHOUT PRIOR WRITTEN APPROVAL BY THE PROPER AUTHORITIES FOR THE PLACING OF THE ADVERTISEMENTS.

THE UNITED STATES ARMY FINANCE AND ACCOUNTING CENTER FORWARDED THE CLAIM TO OUR CLAIMS DIVISION WITH A RECOMMENDATION FOR PAYMENT SINCE THE ADVERTISEMENTS WOULD HAVE BEEN AUTHORIZED HAD PROPER PROCUREMENT PROCEDURES BEEN FOLLOWED, THE PRICE CLAIMED IS FAIR AND REASONABLE AND THE GOVERNMENT BENEFITED FROM THE ADVERTISEMENTS. THE CLAIM COULD NOT BE SETTLED BY OUR CLAIMS DIVISION BECAUSE THE ADVERTISEMENTS WERE PRINTED WITHOUT PRIOR AUTHORIZATION IN VIOLATION OF 44 U.S.C. SEC. 3702 (1976), WHICH STATES:

"ADVERTISEMENTS, NOTICES, OR PROPOSALS FOR AN EXECUTIVE DEPARTMENT OF THE GOVERNMENT, OR FOR A BUREAU OR OFFICE CONNECTED WITH IT, MAY NOT BE PUBLISHED IN A NEWSPAPER EXCEPT UNDER WRITTEN AUTHORITY FROM THE HEAD OF THE DEPARTMENT; AND A BILL FOR ADVERTISING OR PUBLICATION MAY NOT BE PAID UNLESS THERE IS PRESENTED WITH THE BILL A COPY OF THE WRITTEN AUTHORITY."

WE HELD IN 35 COMP.GEN. 235 (1955) THAT PAYMENT FOR ADVERTISEMENTS IS PRECLUDED WHERE THE PROCEDURE REQUIRED BY THE STATUTE IS NOT FOLLOWED.

ORDINARILY, WE DO NOT REPORT TO THE CONGRESS UNDER THE ACT OF APRIL 10, 1928, CLAIMS WHICH CANNOT BE PAID BY REASON OF A PROHIBITORY STATUTE. HOWEVER, ALTHOUGH 44 U.S.C. SEC. 3702 PROHIBITS PAYMENT FOR ADVERTISING UNLESS WRITTEN AUTHORITY IS ISSUED IN ADVANCE OF ADVERTISING, IT DOES NOT PROHIBIT ADVERTISING IN NEWSPAPERS. THEREFORE, SINCE THE NEWSPAPER APPEARS TO HAVE ACTED IN GOOD FAITH AND THE GOVERNMENT BENEFITED FROM THE ADVERTISING, WE HAVE DETERMINED THAT THE EQUITIES WARRANT REPORTING THE CLAIM UNDER THE MERITORIOUS CLAIMS ACT WITH A RECOMMENDATION THAT PAYMENT BE AUTHORIZED.

IF THE CONGRESS AGREES WITH OUR RECOMMENDATION, IT IS SUGGESTED THAT ENACTMENT OF A STATUTE IN SUBSTANTIALLY THE FOLLOWING FORM WILL ACCOMPLISH THE DESIRED PURPOSE:

"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT THE COMPTROLLER GENERAL OF THE UNITED STATES BE, AND HE HEREBY IS, AUTHORIZED AND DIRECTED TO SETTLE AND ADJUST THE CLAIM OF THE NEWS TRIBUNE FOR $34.32 FOR ADVERTISEMENTS FOR THE CIVILIAN PERSONNEL OFFICE OF THE NINTH INFANTRY DIVISION AND FORT LEWIS. THE AMOUNT SHALL BE PAYABLE FROM THE APPLICABLE APPROPRIATIONS OF THE DEPARTMENT OF THE ARMY."