B-181337 November 25, 1974

B-181337 November 25, 1974

The Honorable Carl Albert Speaker of the House of Representatives

Dear Mr. Speaker:

There is enclosed for your consideration a draft of a bill "To repeal certain laws relating to the procurement of advertising for the Government," and for other purposes.

Our recommendation in the matter is made pursuant to 31 U.S.C. Section 53 which provides, in part, that the Comptroller General shall make recommendations to Congress looking to greater economy or efficiency in public expenditures.

The enclosed draft bill would repeal two statutory provisions with reference to the procurement of newspaper advertising for the Government which the General Accounting Office believes to have outlived their usefulness and to be obsolete. They are as follows (44 U.S.C. Section 3702 and 44 U.S.C. Section 3703 respectively):

"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notices, or proposals for an executive department of the Government, or for a bureau or office connected with it, may not be published in a newspaper except under written authority from the head of the department; and a bill for advertising or publication may not be paid unless there is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. (44 U.S.C. Section 3702, being R.S. section 3828, derived from section 2 of the Act of July 15, 1870, 16 Stat. 308.)

"Advertisements, notices, proposals for contracts, and all forms of advertising required by law for the several departments of the Government may be paid for at a price not to exceed the commercial rates charged to private individuals, with the usual discounts. But the heads of the several departments may secure lower terms at special rates when the public interest requires it. The rates shall include the furnishing of lawful evidence, under oath, of publication, to be made and furnished by the printer or publisher making publication." (44 U.S.C. Section 3703, derived from section 1 of the Act of June 20, 1878, 20 Stat. 216.)

The bill would also repeal subsection 302(b)(2) of title 5, United States Code, which authorizes the head of an agency to delegate to subordinate officials the authority vested in him by section 324 (now section 3702) of title 44.

We recommend repeal of these statutes since they involve an administrative procedure of delegating authorities and the maintenance of records thereon which is troublesome and of no particular value, particularly in terms of the intent of the legislation as originally enacted. The requirements prescribed by 44 U.S.C. Section 3702 and 44 U.S.C. Section 3703 may well have been salutary when these statutes were enacted, over 95 years ago, at a time when Government procurement was far from its present systematized form. The legislative history of the 1870 act (44 U.S.C. Section 3702) reveals that the reason for its enactment was to prevent District of Columbia newspapers from republishing and collecting fees for advertisements appearing in distant newspapers. Furthermore, this law was enacted at a time when the Government establishment was small and the department head could review personally the routine operations under his control. Today, however, there appears to be no good reason for continuance of such requirements. Advertising needed by Government agencies in newspapers could satisfactorily be procured and paid for through application of the procurement procedures available under such modern statutory authorities as title III of the Federal Property and Administrative Services Act of 1949, 41 U.S.C. Section 251 et seq., and the Armed Services Procurement Act of 1947 codified in 10 U.S.C. Section 2301 et deq.

Under these authorities, Government officials are required to effect procurement of property and services, whether by formal advertising or by negotiation , on a competitive basis to the maximum extent practicable, from responsible sources at fair and reasonable prices, calculated to result in the lowest overall cost to the Government (sections 302 and 303, Federal Property and Administrative Services Act of 1949, 41 U.S.C. Section 252 and 253; 10 U.S.C. Section 2304 and 2305; sections 1-1.301 and 1-3.801, Armed Services Procurement Regulation). Thus, the old requirement appearing in 44 U.S.C. Section 3703 pertaining particularly to the procurement of advertising for the Government, that it must be paid for at prices not to exceed the commercial rates charged to private individuals, with the usual discounts, is no longer significant, or needed. The requirements of 44 U.S.C. Section 3702, that the procurement of advertising for the Government must be supported by written authority for publication from the head of the department, and that no bill for such advertising shall be paid unless a copy of the written authority is presented with the bill, are outmoded and unnecessary. They generate additional paperwork, and call for special and time-consuming administrative actions in the procurement process.

The provisions of 44 U.S.C. Section 3702 are such as to require the denial of any payment to a publisher who has furnished advertising in good faith to the Government where the Government agents through error or oversight has not complied with the statute in procuring advertising. As a consequence, we are today transmitting to the Congress, pursuant to the Meritorious Claims Act, 31 U.S.C. Section 236, the claims of seven newspapers for advertising procured under procedures which did not fully meet the requirements of 44 U.S.C. Section 3702 but which otherwise would properly be for payment.

Repeal of 44 U.S.C. Section 3702 and 44 U.S.C. Section 3703 would promote economy and efficiency in Government procurement. Furthermore, repeal of 44 U.S.C. 3702 would permit payment of such relatively small claims without having to take up the time of the Congress and the expenses related thereto.

In view of the foregoing, we strongly feel that the procurement procedures of 44 U.S.C. Sections 3702-3703 are not in keeping with today's complex Government operations and recommend early enactment of the proposed bill.

Sincerely yours,

R. F. KELLER Acting Comptroller General of the United States

Enclosure

A BILL

To repeal certain provisions of law relating to the procurement of advertising for the Government.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that sections 3702 and 3703 of title 44, United States Code, and section 302(b)(2) of title 5, United States Code, are hereby repealed.