B-59170, AUGUST 1, 1946, 26 COMP. GEN. 76

B-59170, AUGUST 1, 1946, 26 COMP. GEN. 76

NEWSPAPER ADVERTISING RESTRICTIONS - APPLICABILITY TO ADVERTISEMENTS IN "ENGINEERING NEWS-RECORD" THE REQUIREMENT OF SECTION 3828, REVISED STATUTES, THAT ADVERTISEMENTS PUBLISHED IN NEWSPAPERS BE AUTHORIZED BY THE HEAD OF THE DEPARTMENT IS APPLICABLE TO ADVERTISEMENTS IN THE PUBLICATION " ENGINEERING NEWS- 1RECORD" WHICH, WHILE DEVOTED TO BUSINESS REPORTS, ADVERTISING, ETC., RELATING EXCLUSIVELY TO THE FIELDS OF ENGINEERING AND CONSTRUCTION, CONTAINS NEWS AND INFORMATION OF A GENERAL AND CURRENT NATURE SUCH AS MAY BE FOUND IN ORDINARY NEWSPAPERS; AND CLAIMS FOR PAYMENT FOR ADVERTISEMENTS INSERTED THEREIN SHOULD BE HANDLED IN ACCORDANCE WITH GENERAL REGULATIONS NO. 66 (7 COMP. GEN. 861) PRESCRIBING VOUCHER FORMS, ETC., FOR SUCH SERVICES. 22 COMP. GEN. 606, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO FRANK H. SHINER, DEPARTMENT OF THE INTERIOR, AUGUST 1, 1946:

I HAVE YOUR UNDATED LETTER, RECEIVED IN THIS OFFICE JULY 12, 1946, AS FOLLOWS:

UNDER AUTHORITY OF SECTION 3 OF THE ACT APPROVED DECEMBER 29, 1941 ( PUBLIC LAW NO. 389, 77TH CONGRESS) THERE IS TRANSMITTED HEREWITH A CLAIM IN THE AMOUNT OF $32.50 OF THE " ENGINEERING NEWS RECORD" FOR A DECISION AS TO THE PROPRIETY FOR PAYMENT FROM THE FUND "14X6000.084 IN RECLAMATION FUND, SPECIAL FUND" ( HUNGRY HORSE PROJECT).

IN THE PAST IT HAS BEEN THE CUSTOM TO HANDLE THESE CLAIMS ON VOUCHER FORM 1054 WHICH, HOWEVER, WAS PRESCRIBED FOR USE IN NEWSPAPER ADVERTISING. NOTE THAT IN YOUR DECISION IN 22 C.G. 606 YOU INFORMED THE UNITED STATES EMPLOYMENT SERVICE THAT ITS ADVERTISEMENTS IN TELEPHONE DIRECTORIES SHOULD BE HANDLED ON STANDARD FORM 1034 ( SPECIAL VOUCHER FOR PURPOSES AND SERVICES OTHER THAN PERSONAL) FOR THE REASON THAT SECTION 3828 R.S., WHICH REQUIRES ADVERTISEMENTS IN NEWSPAPERS TO BE AUTHORIZED BY THE HEAD OF A DEPARTMENT, IS CONFINED TO ADVERTISING IN NEWSPAPERS. YOU FURTHER HELD THAT THERE ARE NO GENERAL RESTRICTIONS UPON THE USE OF PUBLIC FUNDS FOR ADVERTISING IF IN FURTHERANCE OF THE OBJECTS FOR WHICH APPROPRIATED, THAT TELEPHONE DIRECTORIES ARE NOT NEWSPAPERS, AND THAT THE RESTRICTIONS OF SECTION 3828 AND ALL REGULATIONS ISSUED PURSUANT THERETO DO NOT APPLY TO ADVERTISING THEREIN.

THE USE OF STANDARD FORM 1034 IN THISE CASE WILL OBVIATE THE NECESSITY FOR SEEKING DEPARTMENTAL APPROVAL OF THESE ADVERTISEMENTS OR A DELEGATION OF AUTHORITY IN PURSUANCE OF SECTION 3828 TO SIGN THE ADVERTISING ORDER NECESSARY TO SUPPORT VOUCHER FORM 1054. IT WILL NOT REQUIRE THE SUBMISSION BY FIELD OFFICES TO ALL THEIR ADVERTISING TO THE WASHINGTON OFFICE AND WILL PERMIT INSERTION IN PUBLICATIONS SUCH AS THE " ENGINEERING NEWS RECORD" WITHOUT THE USE OF THE SEVERAL FORMS WHICH HAVE BEEN PRESCRIBED FOR ADVERTISING IN NEWSPAPERS. IT WILL BE A MUCH SIMPLER PROCEDURE AND OVER A PERIOD OF YEARS WILL RESULT IN CONSIDERABLE SAVINGS OF TIME AND EXPENSE TO THE GOVERNMENT, AND WILL INSURE PUBLICATION OF ADVERTISING SUFFICIENTLY IN ADVANCE OF BID OPENINGS, SO THAT THE GREATEST POSSIBLE ADVANTAGE TO THE GOVERNMENT WILL RESULT FROM SUCH ADVERTISING.

SECTION 3828, REVISED STATUTES, 44 U.S.C. 324, PROVIDES AS FOLLOWS:

NO ADVERTISEMENT, NOTICE, OR PROPOSAL FOR ANY EXECUTIVE DEPARTMENT OF THE GOVERNMENT, OR FOR ANY BUREAU THEREOF, OR FOR ANY OFFICE THEREWITH CONNECTED, SHALL BE PUBLISHED IN ANY NEWSPAPER WHATEVER, EXCEPT IN PURSUANCE OF A WRITTEN AUTHORITY FOR SUCH PUBLICATION FROM THE HEAD OF SUCH DEPARTMENT; AND NO BILL FOR ANY SUCH ADVERTISING, OR PUBLICATION, SHALL BE PAID, UNLESS THERE BE PRESENTED WITH SUCH BILL, A COPY OF SUCH WRITTEN AUTHORITY.

SINCE, AS YOU INDICATE, IT WAS HELD IN THE DECISION OF JANUARY 7, 1943, 22 COMP. GEN. 606, THAT SECTION 3828, REVISED STATUTES, SUPRA, IS CONFINED TO ADVERTISING IN "NEWSPAPERS," YOUR SUBMISSION POSES THE BASIC QUESTION OF WHETHER THE " ENGINEERING NEWS-1RECORD" IS FOR CONSIDERATION AS A NEWSPAPER WITHIN THE PURVIEW OF THE SAID SECTION OF THE REVISED STATUTES. THERE WAS FOR CONSIDERATION IN THE CITED DECISION THE QUESTION OF WHETHER TELEPHONE DIRECTORIES CAME WITHIN THE DEFINITION OF NEWSPAPERS, AS TO WHICH ADVERTISING THEREIN REQUIRED APPLICATION OF SECTION 3828, AND IT WAS HELD THAT TELEPHONE DIRECTORIES WERE NOT SO DEFINED.

A COPY OF THE " ENGINEERING NEWS-1RECORD" OF THE ISSUE IN WHICH THE ADVERTISEMENT, COVERED BY THE VOUCHER SUBMITTED WITH YOUR LETTER, APPEARS HAS BEEN OBTAINED, AND ASIDE FROM THE INCLUSION OF THE WORD " NEWS" ON THE COVER THEREOF, THERE IS NOTED THE HEADING " NEWS OF THE WEEK" ON PAGE 1 AND " NEWS IN BRIEF" ON PAGE 2. WHILE THE TITLE OF THE PUBLICATION MIGHT INDICATE THAT ITS CONTENTS ARE OF A NATURE THAT WOULD BE OF INTEREST TO THOSE ENGAGED IN THE ENGINEERING PROFESSION OR CONSTRUCTION BUSINESS THERE ARE CONTAINED THROUGHOUT IN ADDITION TO NEWS AND INFORMATION CONCERNING VARIOUS ENGINEERING AND CONSTRUCTION PROJECTS, MATTERS OF INTEREST TO THE GENERAL PUBLIC SUCH AS MAY BE FOUND IN THE ORDINARY NEWSPAPER.

IN DECISION OF APRIL 25, 1946, 25 COMP. GEN. 734, WHEREIN THERE WAS CONSIDERED THE STATUS OF " VARIETY," A PUBLICATION DEVOTED PRIMARILY TO THE PRINCIPAL FIELDS OF ENTERTAINMENT, IT WAS HELD AS FOLLOWS:

IT APPEARS FROM THE FOREGOING THAT, WHILE THE COURTS HAVE RECOGNIZED THE DIFFICULTY OF LAYING DOWN A RULE OF DISTINCTION BETWEEN NEWSPAPERS AND OTHER PUBLICATIONS FOR APPLICATION IN ALL CASES, YET THERE IS UNANIMITY IN THE OPINION THAT WHERE THE PUBLICATION CONTAINS GENERAL AND CURRENT NEWS THE CIRCUMSTANCE THAT SUCH NEWS IS RESTRICTED TO A PARTICULAR SUBJECT MATTER OR IS OF A NATURE THAT PERHAPS IS OF INTEREST ONLY TO A PORTION OF THE PUBLIC IN GENERAL DOES NOT SERVE TO REMOVE THE PUBLICATION FROM CLASSIFICATION AS A NEWSPAPER. SO FAR AS CONCERNS " VARIETY," THE PUBLICATION HERE INVOLVED, IT APPEARS TO BE DEVOTED EXCLUSIVELY TO NEWS AND INFORMATION CONCERNING THE PRINCIPAL FIELDS OF PRESENT-DAY ENTERTAINMENT--- MOTION PICTURES, MUSIC, THE STAGE AND RADIO--- AND CONTAINS ADVERTISING, CRITICAL REVIEWS, BUSINESS REPORTS, ETC., RELATING THERETO WHICH, WHILE DESIGNED TO ESPECIALLY APPEAL TO, OR SERVE THE INTEREST OF, THOSE WHO ARE PROFESSIONALLY ENGAGED OR FINANCIALLY INTERESTED IN THOSE ACTIVITIES, NONETHELESS ARE, TO A CONSIDERABLE EXTENT, NEWS AND INFORMATION OF A GENERAL AND CURRENT NATURE SUCH AS MAY BE FOUND IN THE ORDINARY NEWSPAPER. THEREFORE, AND APPLYING THE RATIONALE OF THE DECISIONS OF THE COURTS AND THE ACCOUNTING OFFICERS ABOVE REFERRED TO, I AM CONSTRAINED TO HOLD THAT THE INSTANT PUBLICATION IS A NEWSPAPER WITHIN THE MEANING OF THE LIMITATION CONTAINED IN SECTION 106, SUPRA, AND, SUCH BEING THE CASE, THAT IT MAY NOT BE PURCHASED WITHOUT REGARD THERETO.

THE PUBLICATION HERE INVOLVED LIKEWISE IS DEVOTED EXCLUSIVELY TO NEWS AND INFORMATION CONCERNING PARTICULAR FIELDS OF ACTIVITY--- ENGINEERING AND CONSTRUCTION--- AND CONTAINS BUSINESS REPORTS, ADVERTISING, ETC., RELATING THERETO. NEVERTHELESS, THERE IS CONTAINED THEREIN NEWS AND INFORMATION OF A GENERAL AND CURRENT NATURE SUCH AS MAY BE FOUND IN THE ORDINARY NEWSPAPER. ACCORDINGLY, IT MUST BE CONCLUDED THAT THE INSTANT PUBLICATION COMES WITHIN THE DEFINITION OF A NEWSPAPER AS USED IN SECTION 3828, REVISED STATUTES, AND THAT CLAIMS FOR THE PAYMENT OF ADVERTISEMENTS INSERTED THEREIN SHOULD BE HANDLED IN ACCORDANCE WITH GENERAL REGULATIONS NO. 66 OF THE GENERAL ACCOUNTING OFFICE, 7 COMP. GEN. 861.

PAYMENT ON THE VOUCHER SUBMITTED IS NOT AUTHORIZED AND SAID VOUCHER WILL BE RETAINED IN THIS OFFICE.