B-112177, NOVEMBER 13, 1952, 32 COMP. GEN. 233

B-112177, NOVEMBER 13, 1952, 32 COMP. GEN. 233

PURCHASES - FOREIGN PRODUCTS - UNAVAILABILITY OF DOMESTIC SUPPLIES - NATIONAL PRODUCTION AUTHORITY AUTHORIZATIONS UNDER SECTION 2 OF THE BUY AMERICAN ACT OF MARCH 3, 1933, AS AMENDED, WHICH PROHIBITS THE PURCHASE OF FOREIGN MATERIALS OR SUPPLIES UNLESS THE MATERIALS ARE NOT MINED OR PRODUCED IN SUFFICIENT AND REASONABLY AVAILABLE COMMERCIAL QUANTITIES IN THE UNITED STATES, A NATIONAL PRODUCTION AUTHORITY AUTHORIZATION FOR THE TREASURY DEPARTMENT TO PURCHASE FOREIGN COPPER ESTABLISHES THE FACT THAT DOMESTIC COPPER IS UNAVAILABLE, SO THAT FOREIGN COPPER IN THE AMOUNT OF THE AUTHORIZATION MAY BE PURCHASED BY THE TREASURY DEPARTMENT WITHOUT A SEPARATE DETERMINATION OF DOMESTIC UNAVAILABILITY OF THE MATERIAL OR SUPPLIES. THE PROHIBITION AGAINST THE PURCHASE OF FOREIGN MATERIALS OR SUPPLIES CONTAINED IN SECTION 2 OF THE BUY AMERICAN ACT OF MARCH 3, 1933, AS AMENDED, DOES NOT APPLY WHERE THE REQUIRED DOMESTIC MATERIALS OR SUPPLIES ARE UNAVAILABLE, AND THEREFORE, THE TREASURY DEPARTMENT MAY PURCHASE, SUBJECT TO THE APPROVAL OF THE NATIONAL PRODUCTION AUTHORITY, FOREIGN COPPER UNDER AN ALLOCATION OF DOMESTIC COPPER UPON A DETERMINATION BY THE TREASURY DEPARTMENT THAT DOMESTIC COPPER IS UNAVAILABLE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, NOVEMBER 13, 1952:

REFERENCE IS MADE TO LETTER DATED OCTOBER 2, 1952, FROM THE ACTING SECRETARY OF THE TREASURY TRANSMITTING A COPY OF NATIONAL PRODUCTION AUTHORITY AUTHORIZATION NO. PM-35-9-52 AUTHORIZING THE UNITED STATES MINT TO PURCHASE DURING SEPTEMBER 1952, 397,000 POUNDS OF "DOMESTIC" COPPER AND 203,000 POUNDS OF "OTHER" (FOREIGN) COPPER AND A COPY OF NATIONAL PRODUCTION AUTHORITY ORDER M-16, AS AMENDED, ENTITLED " DISTRIBUTION OF COPPER RAW MATERIALS" AND PRESENTING FOR DECISION THE FOLLOWING QUESTIONS:

(A) IN THE CASE OF THE SEPTEMBER ALLOTMENT, FOR EXAMPLE, MAY THE ALLOCATION OF 203,000 POUNDS OF "OTHER" (FOREIGN) COPPER BY THE NATIONAL PRODUCTION AUTHORITY BE REGARDED AS ESTABLISHING THAT "DOMESTIC" COPPER IS NOT AVAILABLE AND, THEREFORE, FOREIGN COPPER IN THE AMOUNT OF 203,000 POUNDS MAY BE LEGALLY PROCURED NOTWITHSTANDING THE PROVISIONS OF TITLE 41, U.S.C., SEC. 10A, WITHOUT AN INDEPENDENT DETERMINATION BY THE MINT THAT "DOMESTIC" COPPER IS UNAVAILABLE?

(B) ASSUMING THE MINT ENTERS THE MARKET FOR THE PURCHASE OF 397,000 POUNDS OF "DOMESTIC" COPPER, AS AUTHORIZED BY THE SEPTEMBER 1952 NATIONAL PRODUCTION AUTHORITY ALLOCATION, AND IS UNABLE TO OBTAIN THAT QUANTITY OF "DOMESTIC" COPPER, ALTHOUGH EVERY REASONABLE EFFORT TO DO SO IS MADE, DOES THE COMPTROLLER GENERAL, IN VIEW OF THE PROVISIONS OF TITLE 41, U.S.C., SEC. 10A, PERCEIVE ANY OBJECTION TO THE MINT'S ACQUISITION OF "FOREIGN" COPPER IN LIEU OF THE "DOMESTIC" COPPER ALLOCATED BY THE NATIONAL PRODUCTION AUTHORITY? THE NATIONAL PRODUCTION AUTHORITY HAS INFORMALLY ADVISED THE MINT THAT, UNDER THE ALLOCATION,"FOREIGN" COPPER MAY BE OBTAINED IN LIEU OF "DOMESTIC" IF "DOMESTIC" COPPER IS UNAVAILABLE.

SECTION 2 OF THE BUY AMERICAN ACT OF 1933, 47 STAT. 1520, 41 U.S.C. 10A, PROVIDES AS FOLLOWS:

NOTWITHSTANDING ANY OTHER PROVISION OF LAW, AND UNLESS THE HEAD OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT CONCERNED SHALL DETERMINE IT TO BE INCONSISTENT WITH THE PUBLIC INTEREST, OR THE COST TO BE UNREASONABLE, ONLY SUCH UNMANUFACTURED ARTICLES, MATERIALS, AND SUPPLIES AS HAVE BEEN MINED OR PRODUCED IN THE UNITED STATES, AND ONLY SUCH MANUFACTURED ARTICLES, MATERIALS, AND SUPPLIES AS HAVE BEEN MANUFACTURED IN THE UNITED STATES SUBSTANTIALLY ALL FROM ARTICLES, MATERIALS, OR SUPPLIES MINED, PRODUCED, OR MANUFACTURED, AS THE CASE MAY BE, IN THE UNITED STATES, SHALL BE ACQUIRED FOR PUBLIC USE. THIS SECTION SHALL NOT APPLY WITH RESPECT TO ARTICLES, MATERIALS, OR SUPPLIES FOR USE OUTSIDE THE UNITED STATES, OR IF ARTICLES, MATERIALS, OR SUPPLIES OF THE CLASS OR KIND TO BE USED OR THE ARTICLES, MATERIALS, OR SUPPLIES FROM WHICH THEY ARE MANUFACTURED ARE NOT MINED, PRODUCED, OR MANUFACTURED, AS THE CASE MAY BE, IN THE UNITED STATES IN SUFFICIENT AND REASONABLY AVAILABLE COMMERCIAL QUANTITIES AND OF SATISFACTORY QUALITY.

THE ORIGINAL INTENT OF THE CONGRESS IN ENACTING THIS PROVISION OF LAW WAS CLARIFIED BY SECTION 633 OF THE NATIONAL MILITARY ESTABLISHMENT APPROPRIATION ACT, 1950, 63 STAT. 987, 1024. BY THE SPECIFIC TERMS OF THE LAST SENTENCE OF THE QUOTED PROVISION OF LAW, IT HAS NO APPLICATION WHERE THE ARTICLES, MATERIALS OR SUPPLIES OF THE CLASS OR KIND TO BE USED ARE NOT MINED IN THE UNITED STATES IN SUFFICIENT AND REASONABLY AVAILABLE COMMERCIAL QUANTITIES AND OF A SATISFACTORY QUALITY. IT IS UNDERSTOOD THAT, AT THE PRESENT TIME, COPPER IS IN SHORT SUPPLY IN THE UNITED STATES AND FOR THAT REASON IT IS BEING ALLOCATED BY THE SECRETARY OF COMMERCE ( NATIONAL PRODUCTION AUTHORITY) UNDER THE PROVISIONS OF SECTION 101 OF THE DEFENSE PRODUCTION ACT OF 1950, 64 STAT. 798, AND EXECUTIVE ORDER NO. 10161 OF SEPTEMBER 9, 1950, TO ALL USERS ON THE BASIS OF APPROXIMATELY 2/3 "DOMESTIC" AND 1/3 "OTHER" (FOREIGN) COPPER. BY SECTION 713 OF SAID ACT, 64 STAT. 821, ITS PROVISIONS ARE APPLICABLE TO THE UNITED STATES. IT THUS SEEMS CLEAR THAT DOMESTIC COPPER IS IN EXCESS OF THE ALLOCATION THEREOF BY THE NATIONAL PRODUCTION AUTHORITY IS NOT AVAILABLE TO THE TREASURY DEPARTMENT IN SUFFICIENT AND REASONABLY AVAILABLE COMMERCIAL QUANTITIES IN THE UNITED STATES. HENCE, UNDER THE ALLOCATION OF "OTHER" COPPER (FOREIGN), COPPER MAY BE LEGALLY PROCURED WITHOUT A SEPARATE DETERMINATION BY THE MINT THAT DOMESTIC COPPER IS UNAVAILABLE. HOWEVER, A COPY OF THE NATIONAL PRODUCTION AUTHORITY AUTHORIZATION TO PURCHASE "OTHER" (FOREIGN) COPPER SHOULD BE ATTACHED TO THE VOUCHER EVIDENCING PAYMENT THEREFOR, EXCEPT WHERE VARIOUS PURCHASES ARE MADE UNDER ONE AUTHORIZATION, A CITATION TO SUCH AUTHORIZATION MAY BE MADE ON THE VOUCHERS IN LIEU OF ATTACHING A COPY OF THE AUTHORIZATION TO EACH VOUCHER.

THE GENERAL ACCOUNTING OFFICE HAS OBJECTION TO THE PURCHASE, WITH THE APPROVAL OF THE NATIONAL PRODUCTION AUTHORITY, OF FOREIGN COPPER UNDER AN ALLOCATION OF DOMESTIC COPPER WHERE IT IS PROPERLY DETERMINED BY THE TREASURY DEPARTMENT THAT DOMESTIC COPPER IS UNAVAILABLE AND A CERTIFICATE TO THAT EFFECT IS CONTAINED ON THE VOUCHER EVIDENCING PAYMENT.