B-155849, JAN. 28, 1965

B-155849, JAN. 28, 1965

TO MISS JEANETTE B. WILBANKS, AUTHORIZED CERTIFYING OFFICER, BUREAU OF MINES:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 23, 1964, WHEREIN YOU REQUEST OUR DECISION AS TO WHETHER PAYMENT MAY BE MADE TO NATIONAL RESEARCH COUNCIL AND ACADEMIC PRESS, INC., FOR PUBLICATIONS SUPPLIED TO YOUR DEPARTMENT.

YOU ADVISE THAT ON NOVEMBER 21, 1962, YOUR BARTLESVILLE, OKLAHOMA, OFFICE ISSUED AN ORDER TO CENTRAL MAGAZINE COMPANY, INC., RIVERSIDE, CALIFORNIA, FOR THE PURCHASE OF 1963 CALENDAR YEAR ISSUES OF A NUMBER OF TECHNICAL PUBLICATIONS UNDER CONTRACT NO. GS-00S-27489, FSC GROUP 76, PART III, OF THE FEDERAL SUPPLY SCHEDULE.

IN JANUARY 1963 VOUCHER NO. 2176 ISSUED, AND AN ADVANCE PAYMENT OF $229.24 WAS MADE TO CENTRAL MAGAZINE COMPANY FOR ALL ITEMS ON THE ORDER. NATIONAL RESEARCH COUNCIL, CANADA, THE PUBLISHERS OF THE MAGAZINES LISTED AS ITEMS 4 AND 5 ON THE PURCHASE ORDER NO. 345-916, SUBSEQUENTLY RECEIVED A CORRECTION OF THE PURCHASE ORDER DATED NOVEMBER 21, 1962, WHICH WAS ADDRESSED TO CENTRAL MAGAZINE COMPANY, INC., AND WHICH CORRECTED TO $21.00 THE UNIT PRICE PREVIOUSLY QUOTED ON ITEMS 4 AND 5. NATIONAL RESEARCH COUNCIL STATES THAT THEY CONSIDERED THIS AS AN OFFICIAL ORDER FROM YOUR DEPARTMENT'S PETROLEUM RESEARCH CENTER, AND THAT SUBSCRIPTIONS WERE ENTERED IN THE CENTER'S NAME IN THE AMOUNT OF $21.00 NOW CLAIMED BY THEM.

ADDITIONALLY, ACADEMIC PRESS, INC., HAS BILLED YOU FOR THE 1963 SUBSCRIPTION TO THE JOURNAL OF COLLOID SCIENCE IN THE AMOUNT OF $28.00 WHICH PUBLICATION WAS INCLUDED AS ITEM 11 ON PURCHASE ORDER NO. 345 916, AND THAT ADVANCE PAYMENT THEREFOR WAS ALSO MADE TO CENTRAL MAGAZINE COMPANY ALTHOUGH THE 1963 ISSUES WERE RECEIVED DIRECTLY FROM ACADEMIC PRESS.

YOU ADVISE THAT GENERAL SERVICES ADMINISTRATION WOULD ATTEMPT TO RECOVER ADVANCE PAYMENTS MADE TO THE NOW DEFUNCT CENTRAL MAGAZINE COMPANY, INC., BUT NO RECOVERY HAS BEEN MADE, TO YOUR KNOWLEDGE, AT THIS TIME. 31 U.S.C. 530 (A) PROVIDES IN PERTINENT PART AS FOLLOWS:

"SUBSCRIPTION OR OTHER CHARGES FOR NEWSPAPERS, MAGAZINES, PERIODICALS, AND OTHER PUBLICATIONS FOR OFFICIAL USE OF ANY OFFICE UNDER THE GOVERNMENT OF THE UNITED STATES OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA MAY BE PAID IN ADVANCE FROM APPROPRIATIONS AVAILABLE THEREFOR, *

PURCHASE ORDER NO. 345-916 OF NOVEMBER 21, 1962, INDICATES THAT THE ADVANCE PAYMENT MADE TO CENTRAL MAGAZINE COMPANY, THE PRIME CONTRACTOR, COVERED THE AMOUNTS NOW CLAIMED BY THE INDIVIDUAL SUBCONTRACTORS. THE FACT THAT THE AMOUNTS OF THE PARTICULAR CLAIMS WERE NEVER PAID TO THE RESPECTIVE CLAIMANTS BY CENTRAL MAGAZINE COMPANY AS PRIME CONTRACTOR DOES NOT CREATE AN OBLIGATION ON THE PART OF THE GOVERNMENT, SINCE THE LEGAL RELATIONSHIPS WOULD NOT APPEAR TO HAVE BEEN CHANGED BY THE FACT THAT THE PETROLEUM RESEARCH CENTER OF YOUR DEPARTMENT HAD NEGOTIATIONS DIRECTLY WITH THESE SUBCONTRACTORS REGARDING CERTAIN DETAILS, SUCH AS DIRECT DELIVERY OF THE ORDERED SUBSCRIPTIONS.

THERE IS NO SHOWING THAT SUCH DELIVERY WAS MADE WITH THE UNDERSTANDING, EITHER EXPRESS OR IMPLIED, THAT THE GOVERNMENT WOULD PAY THE RESPECTIVE PUBLISHERS RATHER THAN THE PRIME CONTRACTOR, AND IT FOLLOWS THAT THERE IS NO PRIVITY OF CONTRACT BETWEEN THE GOVERNMENT AND THE PUBLISHERS.

ACCORDINGLY, PAYMENT MAY NOT BE MADE TO NATIONAL RESEARCH COUNCIL AND ACADEMIC PRESS, INC., FOR THE PUBLICATIONS IN QUESTION.