B-128065, JUNE 11, 1956, 35 COMP. GEN. 692

B-128065, JUNE 11, 1956, 35 COMP. GEN. 692

APPROPRIATIONS - AVAILABILITY BEYOND FISCAL YEAR - PRESENT NEED REQUIREMENT - SUBSTITUTION OF DIFFERENT MODEL TYPEWRITERS THE PROCUREMENT OF DIFFERENT MODEL TYPEWRITERS IN THE FISCAL YEAR 1956 IN PLACE OF UNDELIVERED TYPEWRITERS, WHICH WERE ORDERED IN FISCAL YEAR 1954 FOR ANOTHER PURPOSE, MAY NOT BE REGARDED AS FULFILLING A BONA FIDE NEED OF THE FISCAL YEAR 1954 AND MAY NOT BE ACCEPTED AND CHARGED AGAINST THE 1954 APPROPRIATION.

TO THE POSTMASTER GENERAL, JUNE 11, 1956:

REFERENCE IS MADE TO LETTER OF MAY 28, 1956, FROM THE CHIEF OF PROCUREMENT, DIVISION OF SUPPLIES, BUREAU OF FACILITIES, OF YOUR DEPARTMENT REQUESTING A DECISION AS TO WHETHER, IN THE LIGHT OF THE FACTS THEREIN SET FORTH, THERE MAY BE ACCEPTED THE OFFER OF A CONTRACTOR TO SUBSTITUTE 77-11 INCH TYPEWRITERS FOR 63-19 INCH TYPEWRITERS WHICH YOUR DEPARTMENT ORDERED IN FISCAL YEAR 1954.

WHILE THE INSTANT MATTER WILL BE CONSIDERED AS THOUGH SUBMITTED BY YOU, ATTENTION IS DIRECTED TO CIRCULAR LETTER B-62475, DATED DECEMBER 13, 1946, 26 COMP. GEN. 993, CONCERNING REQUESTS FOR DECISIONS BY OTHER THAN HEADS OF DEPARTMENTS.

IT APPEARS THAT ON MAY 7 AND JUNE 22, 1954, THE CHIEF OF PROCUREMENT OF YOUR DEPARTMENT ORDERED--- FROM THE GENERAL SUPPLY SCHEDULE--- A TOTAL OF 150 SMITH-CORONA TYPEWRITERS, STANDARD, 19 INCH ELITE TYPE, UNDER PURCHASE ORDERS NOS. 4-T-2411 (AMENDED) AND 4-T-3523 AND HAS RECEIVED DELIVERY OF 87 OF SUCH TYPEWRITERS. IT IS REPORTED THAT DUE TO THE FACT THAT THE FORM FOR WHICH THE 19 INCH TYPEWRITERS WERE ORIGINALLY PURCHASED HAS BECOME OBSOLETE AND IS NOT NOW BEING USED, YOUR DEPARTMENT NO LONGER HAS NEED FOR THE 63 TYPEWRITERS WHICH HAVE NOT BEEN DELIVERED UNDER THE PURCHASE ORDERS. IT IS STATED IN THE LETTER THAT YOUR DEPARTMENT HAS URGENT NEED FOR 77-11 INCH STANDARD TYPEWRITERS. IT IS REPORTED THAT THE COST OF THE 77-11 INCH MACHINES WOULD BE SLIGHTLY LESS THAN THE COST OF 63-19 INCH MACHINES. IT IS ALSO REPORTED THAT SMITH-CORONA HAS OFFERED TO SUPPLY YOUR DEPARTMENTS WITH 77-11 INCH TYPEWRITERS RATHER THAN SEE THE CONTRACT CANCELED. THE LETTER CONTINUES, IN PERTINENT PART, AS FOLLOWS:

THE DEPARTMENT HAS URGENT NEED FOR AT LEAST 45 OF THE 11 INCH TYPEWRITERS IN CONNECTION WITH THE FORTHCOMING CIVIL DEFENSE EXERCISES, AND ITS 1956 APPROPRIATIONS ARE NOT SUFFICIENT TO PURCHASE THE 11 INCH TYPEWRITERS. HAS BEEN SUGGESTED THAT THE DECISIONS IN 16 COMP. GEN. 37, 21 COMP. GEN. 1159, 22 COMP. GEN. 156, AND 27 COMP. GEN. 764 PRECLUDE THE SUBSTITUTION. IT IS MY OPINION THAT THOSE DECISIONS DO NOT NECESSARILY PRECLUDE THE PROPOSED SUBSTITUTION. TWO OF THEM (16 COMP. GEN. 37 AND 22 COMP. GEN. 156) DEALT WITH THE QUESTION OF WHETHER THE PRIOR APPROPRIATION HAD BEEN FIRMLY OBLIGATED. NO SUCH QUESTION ARISES IN THIS CONNECTION INASMUCH AS THE DEPARTMENT'S 1954 APPROPRIATION WAS FIRMLY OBLIGATED AND THE COSTS OF OBTAINING THE DIFFERENT TYPE OF NEEDED EQUIPMENT WOULD BE WITHIN THE LIMITS OF THE ORIGINAL OBLIGATION.

ALTHOUGH THE QUESTION YOU PRESENT CONCERNS THE SUBSTITUTION OF 77-11 INCH TYPEWRITERS FOR 63-19 INCH MACHINES IT APPEARS THAT THERE IS FIRST FOR CONSIDERATION THE QUESTION WHETHER THE COST OF THE 63-19 INCH MACHINES WAS A PROPER OBLIGATION AGAINST YOUR FISCAL YEAR 1954 APPROPRIATION. INDICATED ABOVE IT IS STATED IN THE LETTER OF MAY 28 THAT THERE IS NO QUESTION BUT THAT YOUR DEPARTMENT'S FISCAL YEAR 1954 APPROPRIATION WAS "FIRMLY OBLIGATED" FOR THE PURCHASE OF THESE TYPEWRITERS. HOWEVER, WE ENTERTAIN CONSIDERABLE DOUBT AS TO THE CORRECTNESS OF THIS STATEMENT.

THE GENERAL RULE RELATIVE TO OBLIGATING FISCAL YEAR APPROPRIATIONS BY CONTRACTS IS THAT (1) THE CONTRACT MUST BE MADE WITHIN THE FISCAL YEAR THE APPROPRIATION FOR WHICH IS SOUGHT TO BE CHARGED AND THAT (2) THE SUBJECT MATTER MUST CONCERN A NEED ARISING WITHIN THAT FISCAL YEAR. 16 COMP. GEN. 37. IT DOES NOT APPEAR THAT, AT LEAST AS TO THE 63-19 INCH TYPEWRITERS IN QUESTION, THE SECOND REQUIREMENT WAS MET.

RECORDS OBTAINED INFORMALLY FROM YOUR DEPARTMENT INDICATE THAT SHIPPING INSTRUCTIONS FOR A NUMBER OF 19 INCH MACHINES ORDERED IN THE FISCAL YEAR 1954 WERE NOT FURNISHED TO THE CONTRACTOR UNTIL FISCAL YEAR 1956. FACT, THESE RECORDS SHOW THAT SHIPPING INSTRUCTIONS WERE ISSUED AS LATE AS MARCH 27, 1956, ORDERING SMITH-CORONA TO DELIVER TWO 19 INCH MACHINES TO NEW YORK CITY AND ONE MACHINE TO COVINGTON, KENTUCKY, AND THAT THE CONTRACTOR SHIPPED SUCH MACHINES ON APRIL 11 AND 24, 1956, RESPECTIVELY. THESE RECORDS ALSO INDICATE THE CONTRACTOR SHIPPED A 19 INCH TYPEWRITER TO THE POSTMASTER, RIVERSIDE, NEW JERSEY, ON MAY 17, 1956. MOREOVER, IT APPEARS THAT THE CONTRACTOR HAS ALWAYS BEEN WILLING AND ABLE TO FURNISH THE 63-19 INCH MACHINES FOR WHICH PURCHASE ORDERS WERE ISSUED IN FISCAL YEAR 1954 BUT HAS NEVER BEEN REQUESTED TO DO SO.

THERE APPEARS TO BE SOME DOUBT AS TO WHETHER ANY OF THE 19 INCH TYPEWRITERS FOR WHICH SHIPPING INSTRUCTIONS WERE ISSUED IN FISCAL YEAR 1956 MAY BE CONSIDERED TO HAVE BEEN A BONA FIDE NEED OF FISCAL YEAR 1954. IN ANY EVENT IT CAN HARDLY BE SAID THAT THE 63-19 INCH UNDELIVERED TYPEWRITERS FOR WHICH PURCHASE ORDERS WERE ISSUED IN FISCAL YEAR 1954 WERE A BONA FIDE NEED OF THAT FISCAL YEAR WHEN APPROXIMATELY TWO YEARS HAVE ELAPSED SINCE ISSUANCE OF THE PURCHASE ORDERS AND THE CONTRACTOR HAS NOT BEEN REQUESTED TO DELIVER SUCH MACHINES.

IN VIEW OF THE FOREGOING IT MUST BE HELD, AT LEAST AS TO THE 63 TYPEWRITERS IN QUESTION, THAT SUCH MACHINES WERE NOT A BONA FIDE NEED OF FISCAL YEAR 1954. HENCE, YOUR FISCAL YEAR 1954 APPROPRIATION MAY NOT BE CONSIDERED AS HAVING BEEN OBLIGATED FOR THE COST OF THESE TYPEWRITERS. HOWEVER, ASSUMING FOR THE PURPOSES OF ARGUMENT THAT THE 1954 FISCAL YEAR APPROPRIATION WAS OBLIGATED FOR THE COST OF THE 63-19 INCH TYPEWRITERS, THE RECORD BEFORE US DOES NOT DISCLOSE THAT THE 77-11 INCH TYPEWRITERS SOUGHT TO BE SUBSTITUTED THEREFOR ARE TO FULFILL THE SAME NEED AS THE TYPEWRITERS ORDERED IN FISCAL YEAR 1954. THEREFORE, IN ANSWER TO YOUR SPECIFIC QUESTION, THE 77-11 INCH TYPEWRITERS MAY NOT BE ACCEPTED IN PLACE OF THE 63-19 INCH MACHINES AND CHARGED TO YOUR FISCAL YEAR 1954 APPROPRIATIONS.