B-163762, SEP 2, 1975

B-163762, SEP 2, 1975

1. WHILE THIS OFFICE IS WITHOUT AUTHORITY TO AUTHORIZE PAYMENT OF PRINTING COSTS INCURRED OUTSIDE PROVISIONS OF 44 U.S.C. SEC. 501 WHICH REQUIRES THAT, WITH CERTAIN EXCEPTIONS, ALL PRINTING AND BINDING BE DONE AT GOVERNMENT PRINTING OFFICE (GPO), WE WOULD NOT OBJECT TO PAYMENT FOR PRINTING OF REPORT ON RAILROAD PRODUCTIVITY BY HARVARD UNIVERSITY UNDER THE CIRCUMSTANCES OF THIS CASE IF AUTHORIZED RETROACTIVELY BY THE JOINT COMMITTEE ON PRINTING WHICH IS PERMITTED TO WAIVE THE GPO REQUIREMENT UNDER 44 U.S.C. SEC. 504 WHEN THE GPO IS UNABLE TO MEET THE NEED IN QUESTION OR IT IS IN THE INTEREST OF THE GOVERNMENT TO CONTRACT FOR THE WORK ELSEWHERE. 2. ALTHOUGH PROCUREMENT OF PRINTING OF REPORT ON RAILROAD PRODUCTIVITY BY TASK FORCE OF NATIONAL COMMISSION ON PRODUCTIVITY (NCP) WAS NOT FORMALLY ADVERTISED, NEGOTIATION OF ORAL CONTRACT WITH HARVARD UNIVERSITY APPEARS APPROPRIATE UNDER EXCEPTIONS PROVIDED BY 41 U.S.C. SEC. 252(C) SINCE AGGREGATE AMOUNT INVOLVED WAS LESS THAN $2,500, SERVICES WERE RENDERED BY A UNIVERSITY, AND SITUATION CONFRONTING NCP MET REQUIREMENT OF PUBLIC EXIGENCY EXCEPTION. 3. IN VIEW OF LEGISLATIVE HISTORY SHOWING CLEAR CONGRESSIONAL INTENT THAT PRESENT COMMISSION ON PRODUCTIVITY AND WORK QUALITY BE EXTENSION OF PRESIDENT'S NATIONAL COMMISSION ON PRODUCTIVITY (NCP), THIS OFFICE DOES NOT OBJECT TO PRESENT COMMISSION PAYING DEBT INCURRED BY PREDECESSOR (NCP) AS LONG AS FUNDS FROM NCP'S 1974 APPROPRIATIONS REMAIN AVAILABLE IN AMOUNT SUFFICIENT TO MAKE PAYMENT.

PAYMENT OF $1,163.00 TO HARVARD UNIVERSITY FOR PRINTING AND DISTRIBUTION SERVICES:

THIS ACTION IS IN RESPONSE TO A LETTER RECEIVED FEBRUARY 10, 1975, FROM GEORGE H. KUPER, ACTING EXECUTIVE DIRECTOR, NATIONAL COMMISSION ON PRODUCTIVITY AND WORK QUALITY (THE COMMISSION), REQUESTING AN OPINION OF THIS OFFICE AS TO WHETHER THE COMMISSION IS AUTHORIZED TO PAY THE SUM OF $1,163.00 TO HARVARD UNIVERSITY. THE EXPENSE WAS INCURRED PURSUANT TO A VERBAL AGREEMENT BETWEEN ITS PREDECESSOR AGENCY, THE NATIONAL COMMISSION ON PRODUCTIVITY (NCP) AND HARVARD UNIVERSITY FOR PRINTING AND DISTRIBUTION OF A REPORT BY ITS TASK FORCE ON RAILROAD PRODUCTIVITY, DATED NOVEMBER 1973, ENTITLED "IMPROVING RAILROAD PRODUCTIVITY." MR. KUPER'S LETTER STATES THAT, DURING THE FALL OF 1973, DEMAND FOR THE REPORT GREATLY EXCEEDED THE NCP'S SUPPLY, LARGELY BECAUSE OF CONSIDERATION BY CONGRESS OF LEGISLATION INVOLVING THE PROBLEMS OF THE PENN CENTRAL RAILROAD AND OTHER RAILROAD ISSUES. IN VIEW OF THE URGENT NEED FOR THE REPORT AND THE INABILITY OF THE ORIGINAL PRINTING CONTRACTOR TO MAKE ADDITIONAL COPIES, A VERBAL AGREEMENT WAS REACHED WITH HARVARD UNIVERSITY TO DO THE WORK AT A COST NOT TO EXCEED $1,200. (ALTHOUGH THE COMMISSION'S RECORDS ARE SILENT AS TO THE IDENTITY OF THE ORIGINAL PRINTING CONTRACTOR, AN EXAMINATION OF THE REPORT ITSELF REVEALS THE GOVERNMENT PRINTING OFFICE (GPO) SYMBOL ON PAGE 329 OF THE REPORT.) THE LETTER INDICATES THAT HARVARD CARRIED OUT ITS AGREEMENT TO PRINT AND DISTRIBUTE THE REPORT ON THE COMMISSION'S BEHALF.

SECTION 501 OF TITLE 44 OF THE U.S.C. REQUIRES, WITH CERTAIN EXCEPTIONS, THAT ALL PRINTING AND BINDING FOR THE GOVERNMENT BE DONE AT THE GPO. SECTION 504 OF TITLE 44 PROVIDES THAT THE JOINT COMMITTEE ON PRINTING MAY PERMIT THE PUBLIC PRINTER TO AUTHORIZE AN EXECUTIVE DEPARTMENT, INDEPENDENT OFFICE, OR ESTABLISHMENT OF THE GOVERNMENT TO PURCHASE SUCH PRINTING DIRECTLY AS GPO IS NOT ABLE OR SUITABLY EQUIPPED TO EXECUTE OR AS MAY BE MORE ECONOMICALLY OR IN THE BETTER INTEREST OF THE GOVERNMENT EXECUTED ELSEWHERE. THE RECORD, HOWEVER, DOES NOT INDICATE THAT SUCH PERMISSION WAS EVER SOUGHT OR GRANTED.

THIS OFFICE HAS NO AUTHORITY OF ITS OWN TO WAIVE THE REQUIREMENTS OF 44 U.S.C. SEC. 501, REGARDLESS OF THE EQUITABLE CONSIDERATIONS INVOLVED. RULING ON A SIMILAR CLAIM BY A PRIVATE FIRM FOR PRINTING AN ANNUAL REPORT FOR THE NATIONAL ADVISORY COUNCIL ON ADULT EDUCATION, ADMITTEDLY PERFORMED IN GOOD FAITH AND WITHOUT PRIOR KNOWLEDGE OF ANY LEGAL IMPEDIMENT, WE SAID:

"WE DO NOT QUESTION YOUR GOOD FAITH IN THE MATTER. HOWEVER, THE CONTRACT BEING PROHIBITED BY LAW IMPOSED NO LEGAL OBLIGATION ON THE GOVERNMENT AND THE UNITED STATES IS NEITHER BOUND NOR ESTOPPED BY THE ACTS OF ITS OFFICERS OR AGENTS IN ENTERING INTO, APPROVING, OR PURPORTING TO AUTHORIZE THE CONTRACT EVEN THOUGH IT APPEARS THAT THE GOVERNMENT MAY HAVE RECEIVED THE BENEFIT OF THE PRINTING, SINCE GENERAL PRINCIPLES OF EQUITY WILL NOT BE APPLIED TO FRUSTRATE THE PURPOSE OF THE LAW OR TO THWART PUBLIC POLICY."

B-178496, OCTOBER 9, 1973. SEE ALSO GEORGE M. DAVIS DBA CONSOLIDATED SUPPLY COMPANY V. UNITED STATES, 59 CT. CL. 197 (1924.)

IN ANOTHER CASE INVOLVING THE PRIVATE PRINTING WITHOUT PRIOR AUTHORIZATION BY THE PUBLIC PRINTER OF A BROCHURE ON TROPICAL STORM AGNES, THE JOINT COMMITTEE ON PRINTING WAS ASKED IF A WAIVER WOULD HAVE BEEN GRANTED HAD THE MATTER BEEN PRESENTED TO IT IN A TIMELY MANNER. THE COMMITTEE REPLIED THAT IT WAS THE POLICY OF THE PUBLIC PRINTER NOT TO ISSUE RETROACTIVE WAIVERS. HOWEVER, THE SPECIAL CIRCUMSTANCES OF THAT CASE - "THE DEVASTATING EFFECT OF THE HURRICANE AND THE NEED FOR FURNISHING IMMEDIATELY HELPFUL INFORMATION TO THE PUBLIC" - JUSTIFIED AN EXCEPTION AND IT RECOMMENDED PAYMENT OF THE BILL AS THOUGH THE WAIVER HAD BEEN GRANTED BEFORE THE OBLIGATION WAS INCURRED. B-167790, MAY 25, 1973. WE CANNOT, OF COURSE, PREDICT WHAT ACTION THE JOINT COMMITTEE WILL TAKE IF THE CIRCUMSTANCES OF THIS CASE ARE PRESENTED TO IT BY THE COMMISSION, BUT IF IT CHOOSES TO GRANT THE NECESSARY AUTHORITY TO THE PUBLIC PRINTER TO WAIVE THE REQUIREMENTS OF 44 U.S.C. SEC. 501 ON A RETROACTIVE BASIS, THIS OFFICE WILL NOT OBJECT TO PAYMENT BECAUSE THE CONTRACT WAS OTHERWISE PROPER, FOR THE REASONS STATED BELOW.

ALTHOUGH THE INSTANT PROCUREMENT WAS NOT FORMALLY ADVERTISED, NEGOTIATION APPEARS APPROPRIATE UNDER THE EXCEPTIONS PROVIDED BY THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 41 U.S.C. SEC. 252(C) IN THAT THE AGGREGATE AMOUNT INVOLVED DID NOT EXCEED $2,500 AND THE SERVICES WERE RENDERED BY A UNIVERSITY. FURTHERMORE, WE AGREE THAT THE SITUATION CONFRONTING THE NCP IN THE FALL OF 1973 WOULD REQUIRE AN EXPEDITIOUS CONTRACT AWARD UNDER THE PUBLIC EXIGENCY EXCEPTION. SEE B-179197, NOVEMBER 4, 1974, AND B-168992, OCTOBER 1, 1970. SECTION 252(C) OF TITLE 41 PROVIDES IN PERTINENT PART:

"ALL PURCHASES AND CONTRACTS FOR PROPERTY AND SERVICES SHALL BE MADE BY ADVERTISING, AS PROVIDED IN SECTION 253 OF THIS TITLE, EXCEPT THAT SUCH PURCHASES AND CONTRACTS MAY BE NEGOTIATED BY THE AGENCY HEAD WITHOUT ADVERTISING IF -

"(2) THE PUBLIC EXIGENCY WILL NOT ADMIT OF THE DELAY INCIDENT TO THE ADVERTISING;

"(3) THE AGGREGATE AMOUNT INVOLVED DOES NOT EXCEED $2,500;

"(5) FOR ANY SERVICE TO BE RENDERED BY ANY UNIVERSITY, COLLEGE, OR OTHER EDUCATIONAL INSTITUTION ***."

WITH REFERENCE TO THE ORAL NATURE OF THE CONTRACT, SINCE AUTHORITY FOR NEGOTIATION EXISTED, AND THERE IS NO STATUTE OR REGULATION REQUIRING CONTRACTS OF THIS NATURE TO BE IN WRITING, AN ORAL CONTRACT IS JUST AS BINDING AS THOUGH IT WERE IN WRITING. ESCOTE MANUFACTURING COMPANY INC., V. UNITED STATES, 144 CT. CL. 452, 459, (1959). SEE ALSO B 175635, AUGUST 9, 1972; B-174723, FEBRUARY 18, 1972; AND B-164887, DECEMBER 2, 1968. MOREOVER, THE SUBMISSION LETTER STATES THAT THE ORIGINAL CONTRACTOR WAS UNABLE TO MAKE ADDITIONAL COPIES AVAILABLE. AS NOTED PREVIOUSLY, THE ORIGINAL CONTRACTOR WAS THE GPO. IF TRUE, GPO'S INABILITY MEETS THE STATUTORY TEST FOR AUTHORIZING DIRECT PURCHASE OF PRINTING UNDER 44 U.S.C. SEC. 504.

A QUESTION REMAINING IS WHETHER THE PRESENT COMMISSION CAN PAY A DEBT INCURRED BY AN EARLIER COMMISSION (THE NCP). THE LEGISLATIVE HISTORY OF PUB. L. NO. 93-311, 88 STAT. 236, APPROVED JUNE 8, 1974, SHOWS THE CLEAR INTENT OF CONGRESS TO AUTHORIZE THE EXTENSION OF THE PRESIDENT'S NATIONAL COMMISSION ON PRODUCTIVITY AND TO CHANGE ITS NAME TO THE NATIONAL COMMISSION ON PRODUCTIVITY AND WORK QUALITY. SEE H.R. REP. NO. 93-366, 93D CONG., 1ST SESS., AND S. REP. NO. 93-138, 93D CONG., 1ST SESS. FURTHERMORE, THERE ARE NUMEROUS REFERENCES IN THE FLOOR DEBATE OF THE HOUSE OF REPRESENTATIVES TO "THE COMMISSION" AS AN ONGOING ENTITY (CONG. REC., DAILY ED., MAY 14, 1974, PP. H3807 - 3822). THEREFORE, WE SEE NO PROBLEM ARISING FROM THE FACT THAT THE DEBT WAS INCURRED BY THE PRESENT COMMISSION'S PREDECESSOR AS LONG AS APPROPRIATIONS REMAIN AVAILABLE FROM THE NCP'S 1974 APPROPRIATION IN AN AMOUNT SUFFICIENT TO MAKE THE PAYMENT. SEE 52 COMP. GEN. 179 (1972).

IN VIEW OF THE ABOVE, AND IF FUNDS ARE AVAILABLE FROM THE NCP'S FISCAL YEAR 1974 APPROPRIATION, THIS OFFICE WOULD HAVE NO OBJECTION TO THE PAYMENT BY THE NATIONAL COMMISSION ON PRODUCTIVITY AND WORK QUALITY OF $1,163.00 TO HARVARD UNIVERSITY FOR EXPENSES INCURRED FOR PRINTING AND DISTRIBUTION OF A REPORT FOR THE PRESIDENT'S NATIONAL COMMISSION ON PRODUCTIVITY IF THE JOINT COMMITTEE ON PRINTING DECIDES TO GRANT A WAIVER OF THE GPO REQUIREMENT UNDER 44 U.S.C. SEC. 504.