B-156161, MAY 11, 1965, 44 COMP. GEN. 695

B-156161, MAY 11, 1965, 44 COMP. GEN. 695

APPROPRIATIONS - FISCAL YEAR - AVAILABILITY BEYOND - YEAR-END BUYING PRINTING REQUISITIONS FOR SALES PROMOTION MATERIAL SUBMITTED TO THE GOVERNMENT PRINTING OFFICE (GPO) NEAR THE END OF A FISCAL YEAR WITHOUT ANY COPY MAY NOT BE REGARDED AS MATERIAL REQUIRED TO REPLACE STOCK OR AS MEETING A BONA FIDE NEED OF THE FISCAL YEAR FOR LAWFULLY OBLIGATING THE APPROPRIATION AVAILABLE AT THE TIME OF ISSUANCE BECAUSE "STOCK" IN SUCH CASES REFERS GENERALLY TO READILY AVAILABLE COMMON USE STANDARD ITEMS RATHER THAN TO MATERIALS WHICH ARE ESPECIALLY CREATED FOR A PARTICULAR PURPOSE AND WHICH REQUIRE A LENGTHY PERIOD FOR CREATION, AND FURTHER THE FACT THAT THE COPY WAS NOT FURNISHED TO GPO UNTIL SEVEN MONTHS AFTER THE FISCAL YEAR PRECLUDES SUCH REQUISITIONS FROM BEING CONSIDERED FIRM AND COMPLETE ORDERS WHEN ISSUED; THEREFORE, THE REQUISITIONS ARE NOT LAWFUL OBLIGATIONS OF THE PARTICULAR FISCAL YEAR AND SUCH APPROPRIATIONS MAY NOT BE CHARGED WITH THE PRINTING COSTS.

TO MRS. BETTY F. LEATHERMAN, DEPARTMENT OF COMMERCE, MAY 11, 1965:

YOUR LETTER OF APRIL 14, 1965, PRESENTED FOR OUR CONSIDERATION THE QUESTION WHETHER GOVERNMENT PRINTING OFFICE INVOICE NO. 955, DATED MARCH 18, 1965, IN THE AMOUNT OF $1,500, ATTACHED THERETO, AND SIMILAR FORTHCOMING INVOICES COVERING THE PRINTING OF CERTAIN SALES PROMOTION MATERIALS FOR THE UNITED STATES TRAVEL SERVICE, MAY BE PAID FROM FISCAL YEAR 1964 FUNDS OF THAT AGENCY.

THE RECORD BEFORE OUR OFFICE SHOWS THAT THE UNITED STATES TRAVEL SERVICE (HEREINAFTER REFERRED TO AS USTS) ATTEMPTED TO OBLIGATE $176,536 OF FISCAL YEAR 1964 FUNDS FOR THE PRINTING OF THE SALES PROMOTION MATERIALS HERE IN QUESTION BY ISSUING PRINTING REQUISITIONS NUMBERED 1678 THROUGH 1687 TO THE GOVERNMENT PRINTING OFFICE UNDER DATE OF JUNE 16, 1964. AT THAT DATE, SUCH MATERIALS COULD NOT EVEN BE PRINTED, MUCH LESS USED, BEFORE THE EXPIRATION OF FISCAL YEAR 1964, HENCE THE QUESTION ARISES AS TO THE LEGALITY OF SUCH ATTEMPTED OBLIGATION.

IN CONNECTION WITH PRINTING REQUISITIONS ISSUED NEAR THE END OF A FISCAL YEAR, WE STATED IN OUR CIRCULAR LETTER TO THE HEADS OF ALL GOVERNMENT AGENCIES, DATED SEPTEMBER 3, 1941, A-44006, PUBLISHED AT 21 COMP. GEN. 1159, AS FOLLOWS:

"IT HAS COME TO THE ATTENTION OF THIS OFFICE THAT MANY REQUISITIONS FOR PRINTING AND BINDING HAVE BEEN PREPARED AND TRANSMITTED TO THE GOVERNMENT PRINTING OFFICE DURING THE LATTER PART OF EACH FISCAL YEAR MANIFESTLY FOR THE SOLE PURPOSE OF OBLIGATING AN EXPIRING CURRENT APPROPRIATION, AS SUCH SERVICES COULD NOT POSSIBLY HAVE BEEN OBTAINED IN TIME, NOR WERE THEY OF A CHARACTER, TO SUPPLY THE NEEDS OF THE FISCAL YEAR IN WHICH THE REQUISITIONS WERE ISSUED.

"IN A NUMBER OF CASES SUCH REQUISITIONS HAVE BORNE NOTATIONS TO THE EFFECT THAT MANUSCRIPT AND ILLUSTRATIONS WILL FOLLOW, AND REQUESTS HAVE FREQUENTLY BEEN MADE BY THE REQUISITIONING OFFICES, SIMULTANEOUSLY WITH THE SUBMISSION OF REQUISITIONS OR IMMEDIATELY THEREAFTER, FOR THE RETURN OF DOCUMENTS WHICH WERE TRANSMITTED WITH THE REQUISITIONS IN ORDER THAT THEY COULD BE FURTHER EDITED OR REVISED. IN SUCH INSTANCES IT IS NOT GENERALLY POSSIBLE FOR THE GOVERNMENT PRINTING OFFICE TO ESTIMATE THE COST OF THE JOB TO BE PERFORMED OR TO BEGIN WORK THEREON, AND THE ONLY OBJECTIVE ACCOMPLISHED BY PRESENTING REQUISITIONS UNDER SUCH CIRCUMSTANCES IS THE IMPROPER OBLIGATION OF A CURRENT FISCAL YEAR APPROPRIATION.

"THE GENERAL RULE FOR LAWFULLY OBLIGATING A FISCAL YEAR APPROPRIATION IS THAT THE SUPPLIES OR SERVICES ARE INTENDED TO SERVE A BONA FIDE NEED OF THE FISCAL YEAR IN WHICH THE NEED ARISES TO REPLACE STOCK USED IN SUCH FISCAL YEAR. A REQUISITION IMPROPERLY ISSUED WILL NOT OBLIGATE THE APPROPRIATION CURRENT AT THE TIME THE REQUISITION IS ISSUED, AND ORDINARILY WHERE A REQUISITION IS ISSUED DURING ONE FISCAL YEAR AND THE SERVICES ARE NOT PERFORMED OR REQUIRED UNTIL THE SUCCEEDING FISCAL YEAR THE APPROPRIATION CURRENT AT THE TIME THE SERVICES ARE RENDERED IS PROPERLY CHARGEABLE WITH THE COST.'

THE ACTION OF THE USTS IN THIS INSTANCE FALLS SQUARELY WITHIN THE EXAMPLE CITED IN OUR CIRCULAR LETTER AND, HENCE, CONSTITUTES A PRIMA FACIE INVALID ATTEMPT TO OBLIGATE FISCAL YEAR 1964 FUNDS. HOWEVER, ATTACHED TO YOUR LETTER IS A MEMORANDUM FROM MR. JOHN W. BLACK, ACTING DIRECTOR OF USTS, ATTEMPTING TO JUSTIFY THE OBLIGATION AND USE OF FISCAL YEAR 1964 FUNDS FOR THE PRINTING HERE IN QUESTION.

THE MEMORANDUM STATES THAT USTS, AS PART OF ITS REGULAR PROGRAMS, REQUESTED AND OBTAINED FROM CONGRESS FUNDS FOR THE CREATION AND PRODUCTION OF SALES PROMOTION MATERIALS IN FISCAL YEAR 1964. HOWEVER, DUE TO A DELAY IN SELECTING A NEW SALES PROMOTION AGENCY, A CONTRACT FOR THE CREATIVE WORK ON THESE PROMOTIONAL MATERIALS COULD NOT BE ENTERED INTO UNTIL MAY 28, 1964, THUS MAKING IT IMPOSSIBLE TO OBLIGATE FUNDS FOR THE PRINTING OF THE MATERIALS TO BE CREATED THEREUNDER BEFORE JUNE.

IT IS CONTENDED IN THE MEMORANDUM THAT THE NEED FOR THE PROMOTIONAL MATERIAL AROSE DURING FISCAL YEAR 1964 AND THAT THE MATERIAL WAS REQUIRED TO REPLACE "STOCK" OR PROMOTIONAL MATERIAL USED IN FISCAL YEAR 1964. THE MEMORANDUM CORRECTLY STATES THE GENERAL RULE FOR LAWFULLY OBLIGATING A FISCAL YEAR APPROPRIATION, THAT IS, THAT THE MATERIALS ORDERED ARE INTENDED TO MEET A BONA FIDE NEED OF THE FISCAL YEAR IN WHICH THE NEED AROSE, OR TO REPLACE STOCK USED IN THAT FISCAL YEAR. ALSO, THE MEMORANDUM CITES OUR DECISIONS OF AUGUST 4, 1943, B 35967; AUGUST 10, 1943, B-35807; AND JUNE 1, 1950, B-95380, AS INSTANCES WHERE WE DETERMINED THAT PRINTING REQUISITIONS ISSUED NEAR THE END OF A FISCAL YEAR PROPERLY OBLIGATED SUCH YEAR'S APPROPRIATION.

IT SHOULD BE NOTED THAT "STOCK" AS USED IN THE STATED GENERAL RULE REFERS GENERALLY TO READILY AVAILABLE COMMON-USE STANDARD ITEMS. SEE 32 COMP. GEN. 436. WE DO NOT BELIEVE THAT THE ACQUISITION OF PROMOTIONAL MATERIALS WHICH ARE ESPECIALLY "CREATED" FOR A PARTICULAR PURPOSE AND WHICH REQUIRE A LENGTHY PERIOD FOR CREATION PRIOR TO BEING PRINTED MAY BE CONSIDERED AS ,REPLACEMENT OF STOCK" AS THAT TERM IS USED IN THE RULE, REGARDLESS OF THE FACT THAT THEY ARE TO BE USED IN PLACE OF OTHER MATERIALS PREVIOUSLY USED FOR THE SAME GENERAL PURPOSE.

MOREOVER, BEFORE ANY ORDER OR REQUISITIONS MAY BE CONSIDERED AS LEGALLY OBLIGATING THE APPROPRIATION OF THE FISCAL YEAR IN WHICH IT WAS ISSUED--- EVEN IF THE MATERIAL ORDERED CLEARLY IS INTENDED TO MEET A BONA FIDE NEED OF THAT FISCAL YEAR OR IS FOR REPLACEMENT OF STOCK USED IN THAT FISCAL YEAR--- SUCH ORDER MUST BE FIRM AND COMPLETE. 32 COMP. GEN. 436. IN THIS CONNECTION, WE NOTE THAT THE PRINTING REQUISITION INVOLVED IN OUR DECISION OF AUGUST 4, 1943, B-35967 (PUBLISHED AT 23 COMP. GEN. 82), COVERED A BONA FIDE NEED OF THE FISCAL YEAR IN WHICH IT WAS ISSUED AND WAS COMPLETE WITH MANUSCRIPT MATERIAL IN FINAL FORM AT THE TIME IT WAS ISSUED; THE REQUISITION INVOLVED IN B-95380, JUNE 1, 1950, APPARENTLY WAS COMPLETE WHEN ISSUED AND COVERED THE PRINTING OF MATERIAL IDENTICAL WITH THAT USED IN THE FISCAL YEAR IN WHICH THE REQUISITION WAS ISSUED (AND WHICH HAD LONG BEEN USED UNCHANGED), WHICH MAY BE CONSIDERED AS REPLACEMENT OF STOCK ITEMS; AND B-35807 OF AUGUST 10, 1943, INVOLVED THE PRINTING OF A REPORT OF THE SIXTEENTH DECENNIAL CENSUS UNDER AN APPROPRIATION SPECIFICALLY MADE FOR THAT CENSUS AND NOT CONTINUED IN THE SUCCEEDING FISCAL YEAR, AND THE REQUISITION WAS CONSIDERED AS OBLIGATING THE APPROPRIATION OF THE FISCAL YEAR IN WHICH ISSUED ONLY TO THE EXTENT THAT IT WAS COMPLETE (I.E., ACCOMPANIED BY MANUSCRIPT TYPED IN FINAL FORM) AT THE TIME IT WAS ISSUED. SEE ALSO, B-154277, JUNE 5, 1964; B 114619, APRIL 17, 1953.

IN THE PRESENT INSTANCE, THE RECORD BEFORE OUR OFFICE INDICATES THAT NONE OF THE REQUISITIONS HERE INVOLVED WAS ACCOMPANIED BY MANUSCRIPTS OR OTHER COPY TO BE PRINTED AT THE TIME OF ISSUANCE. THE REQUISITIONS BORE NOTATIONS TO THE EFFECT THAT SPECIFICATIONS AND COPY WOULD FOLLOW BUT DID NOT SPECIFY A DATE. FURTHERMORE, THE RECORD REVEALS THAT NO COPY ACTUALLY WAS FURNISHED THE GOVERNMENT PRINTING OFFICE UNDER THESE REQUISITIONS UNTIL FEBRUARY 1, 1965, OVER SEVEN MONTHS AFTER THE END OF THE 1964 FISCAL YEAR. OBVIOUSLY, EVEN IF THE PRINTING HERE INVOLVED COULD BE CONSIDERED AS REPLACEMENT OF STOCK OR AS INTENDED TO MEET A BONA FIDE NEED OF FISCAL YEAR 1964, THESE REQUISITIONS DID NOT SATISFY THE REQUIREMENT OF FIRM AND COMPLETE ORDERS BEFORE THE EXPIRATION OF THE 1964 FISCAL YEAR. MOREOVER, IN VIEW OF THE LATE DATE AT WHICH COPY WAS FURNISHED TO THE GOVERNMENT PRINTING OFFICE, IT IS DIFFICULT TO SEE HOW THIS PRINTING COULD FULFILL A NEED OF THE 1964 FISCAL YEAR.

HENCE, IT MUST BE HELD THAT THE REQUISITIONS HERE IN QUESTION DID NOT LEGALLY OBLIGATE FISCAL YEAR 1964 FUNDS OF THE USTS AND, THEREFORE, THE GOVERNMENT PRINTING OFFICE INVOICE NO. 955, WHICH IS RETURNED HEREWITH, AND ANY OTHER SUCH INVOICES COVERING SALES PROMOTION MATERIALS PRINTED UNDER REQUISITIONS NUMBERED 1678 THROUGH 1687, ISSUED UNDER DATE OF JUNE 16, 1964, CANNOT BE PAID FROM FISCAL YEAR 1964 FUNDS.