B-198568, O.M., APR 17, 1980

B-198568, O.M., APR 17, 1980

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

WE ARE FORWARDING THE CLAIM OF THE BAKERSFIELD CALIFORNIAN FOR $142.80. THE CLAIMANT SEEKS PAYMENT FOR PUBLISHING RECRUITMENT ADVERTISING FOR THE ARMY NATIONAL GUARD WITHOUT CONTRACTUAL COVERAGE.

THE CONTRACTING OFFICER HAS STATED THAT THIS CLAIM AROSE THROUGH A FAILURE TO FOLLOW CORRECT PROCUREMENT PROCEDURES. THE ADVERTISEMENT WOULD HAVE BEEN PLACED HAD CORRECT PROCEDURES BEEN FOLLOWED, AND THE GOVERNMENT HAS BENEFITED FROM THIS SERVICE. ALTHOUGH THE CONTRACTING OFFICER RECOMMENDS PAYMENT, SUCH ACTION WOULD BE IMPROPER IN VIEW OF THE RESTRICTIONS FOUND IN 44 U.S.C. 3702.

THEREFORE, WE ARE FORWARDING THE MATTER, IN ACCORDANCE WITH B-182938 O.M., FEBRUARY 26, 1975 AND B-181337, NOVEMBER 25, 1974, FOR YOUR CONSIDERATION FOR SUBMISSION TO THE CONGRESS AS A MERITORIOUS CLAIM.

INDORSEMENT

ASSOCIATE DIRECTOR, FGMS DIVISION-CLAIMS GROUP:

RETURNED. THE BAKERSFIELD CALIFORNIAN REQUESTS PAYMENT OF ITS CLAIM FOR $142.80, WHICH ARISES FROM ITS PUBLISHING RECRUITMENT ADVERTISEMENTS FOR THE CALIFORNIA ARMY NATIONAL GUARD. THE GUARD HAD NOT REQUESTED PUBLICATION, BUT HAD MERELY ASKED THE NEWSPAPER TO PROVIDE A QUOTATION OF THE PRICE THAT WOULD BE CHARGED FOR THE PUBLICATION. CONSEQUENTLY, THE PUBLICATION WAS MADE WITHOUT A REQUEST AND WITHOUT THE GUARD HAVING OBTAINED PRIOR WRITTEN APPROVAL BY THE PROPER AUTHORITIES FOR ANY PUBLICATION AS IS REQUIRED BY 44 U.S.C. SEC. 3702 (1976).

PAYMENT OF THE CLAIM SHOULD BE DENIED.

PAYMENT FOR ADVERTISEMENTS IS PRECLUDED WHERE THE PROCEDURE REQUIRED BY 44 U.S.C. SEC. 3702 (1976) IS NOT FOLLOWED. 35 COMP.GEN. 235 (1955). THAT STATUTE PROVIDES:

"ADVERTISEMENTS, NOTICES, OR PROPOSALS FOR AN EXECUTIVE DEPARTMENT OF THE GOVERNMENT, OR FOR A BUREAU OR OFFICE CONNECTED WITH IT, MAY NOT BE PUBLISHED IN A NEWSPAPER EXCEPT UNDER WRITTEN AUTHORITY FROM THE HEAD OF THE DEPARTMENT; AND A BILL FOR ADVERTISING OR PUBLICATION MAY NOT BE PAID UNLESS THERE IS PRESENTED WITH THE BILL A COPY OF THE WRITTEN AUTHORITY."

IN THE PAST, WE HAVE FORWARDED TO THE UNITED STATES CONGRESS FOR ITS CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. SEC. 236 (1976), CLAIMS ARISING FROM IMPROPER PUBLICATIONS. SEE PAYMENT FOR NEWSPAPER ADVERTISEMENTS WITHOUT PRIOR AUTHORIZATION, B-196440, APRIL 3, 1980. HOWEVER, IN THIS CASE, WE DO NOT BELIEVE THAT SUCH A COURSE OF ACTION SHOULD BE TAKEN. IN THE CASES FORWARDED TO THE CONGRESS, THE CONTRACTING OFFICIALS, ALBEIT IMPROPERLY, HAD REQUESTED THAT THE PUBLICATION BE MADE. HERE, THERE WAS NO REQUEST FOR THE PUBLICATION OF THE ADVERTISEMENTS - MERELY A REQUEST FOR A QUOTATION OF THE PRICE THAT WOULD BE CHARGED IF THE ADVERTISEMENTS WERE PLACED.