B-78978, SEPTEMBER 2, 1948, 28 COMP. GEN. 146

B-78978, SEPTEMBER 2, 1948, 28 COMP. GEN. 146

PROPORTIONAL SPACING MACHINES, HEKTOWRITERS, AND VARITYPERS - PURCHASE PRICE LIMITATION THE PURCHASE, WHEN OTHERWISE PROPER, OF SPECIAL PURPOSE MACHINES SUCH AS THE " PROPORTIONAL SPACING MACHINE," THE " HEKTOWRITER," AND THE " VARITYPER" IS SUBJECT TO THE RESTRICTION IN THE TREASURY DEPARTMENT APPROPRIATION ACT, 1949, THAT TYPEWRITING MACHINES SHALL NOT BE PURCHASED DURING ANY QUARTER OF THE FISCAL YEAR 1949 AT A PRICE IN EXCESS OF 90 PERCENT OF THE LOWEST NET CASH PRICE, PLUS APPLICABLE FEDERAL EXCISE TAXES, ACCORDED THE MANUFACTURER'S MOST FAVORED CUSTOMER (OTHER THAN THE UNITED STATES AND PURCHASERS FOR EDUCATIONAL INSTRUCTION PURPOSES) DURING THE 6-MONTH PERIOD PRECEDING SUCH QUARTER.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, SEPTEMBER 2, 1948:

REFERENCE IS MADE TO YOUR LETTER OF JULY 28, 1948, IN WHICH YOU REQUEST AN OPINION AS TO WHETHER SPECIAL PURPOSE MACHINES SUCH AS THE " PROPORTIONAL SPACING MACHINE" AND THE " HEKTOWRITER," MANUFACTURED BY THE INTERNATIONAL BUSINESS MACHINES CORPORATION, AND THE " VARITYPER," MANUFACTURED BY THE RALPH C. COXHEAD CORPORATION, SHOULD BE CONSIDERED AS SUBJECT TO THE PRICE RESTRICTIONS ESTABLISHED BY THE TREASURY DEPARTMENT APPROPRIATION ACT, 1949 ( PUBLIC LAW 640, APPROVED JUNE 14, 1948, 62 STAT. 415, 416).

THE PERTINENT PROVISIONS OF THE SAID ACT ARE AS FOLLOWS:

NO PART OF ANY MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE USED DURING THE FISCAL YEAR 1949 FOR THE PURCHASE, WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES, OF ANY TYPEWRITING MACHINES (EXCEPT BOOKKEEPING AND BILLING BY THE VETERANS' ADMINISTRATION).

EACH AGENCY IN THE EXECUTIVE BRANCH OF THE GOVERNMENT (WHICH SHALL INCLUDE ALL DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND WHOLLY OWNED GOVERNMENT CORPORATIONS), IS AUTHORIZED AND DIRECTED (1) TO REPORT WITHIN THIRTY DAYS AFTER THE ENACTMENT OF THIS ACT, OR BY JULY 1, 1948, WHICHEVER IS THE LATER, TO THE DIRECTOR OF THE BUREAU OF FEDERAL SUPPLY THE TOTAL NUMBER OF TYPEWRITING MACHINES IN THE POSSESSION OR CUSTODY OF SUCH AGENCY AND THE NUMBER THEREOF SURPLUS TO ITS REQUIREMENTS, AND (2) TO SURRENDER AND SHIP SUCH SURPLUS TYPEWRITING MACHINES AS THE DIRECTOR OF THE BUREAU OF FEDERAL SUPPLY MAY DIRECT. COSTS OF PACKING AND SHIPPING HEREUNDER SHALL BE CHARGED TO THE GENERAL SUPPLY FUND. EACH AGENCY SHALL FURNISH THE DIRECTOR OF THE BUREAU OF FEDERAL SUPPLY SUCH INFORMATION REGARDING TYPEWRITING MACHINES AS HE MAY FROM TIME TO TIME REQUEST. THE BUREAU OF FEDERAL SUPPLY IS AUTHORIZED AND DIRECTED TO RECEIVE AND HOLD ALL TYPEWRITING MACHINES SURRENDERED TO IT HEREUNDER AND TO DISTRIBUTE SAME TO ANY OF SUCH AGENCIES AS THE DIRECTOR OF THE BUREAU OF FEDERAL SUPPLY MAY DETERMINE. NOTWITHSTANDING THE FOREGOING PARAGRAPHS, IN THE EVENT THE DIRECTOR OF THE BUREAU OF FEDERAL SUPPLY IS UNABLE TO FURNISH ANY SUCH AGENCY WITH SUITABLE TYPEWRITERS OUT OF STOCK ON HAND, HE MAY PURCHASE TYPEWRITERS FOR THE ACCOUNT OF SUCH AGENCY: PROVIDED, THAT THE PRICE PAID DURING ANY QUARTER OF THE FISCAL YEAR FOR SUCH TYPEWRITERS SHALL NOT EXCEED NINETY PERCENTUM OF THE LOWEST NET CASH PRICE, PLUS APPLICABLE FEDERAL EXCISE TAXES, ACCORDED THE MOST FAVORED CUSTOMER (OTHER THAN THE GOVERNMENT OF THE UNITED STATES, OR ANY AGENCY THEREOF, AND PURCHASERS OF TYPEWRITERS FOR EDUCATIONAL INSTRUCTION PURPOSES ONLY) OF THE MANUFACTURER OF SUCH MACHINES DURING THE SIX MONTH PERIOD IMMEDIATELY PRECEDING SUCH QUARTER.

THE DIRECTOR OF THE BUREAU OF FEDERAL SUPPLY IS AUTHORIZED AND DIRECTED AT SUCH TIMES AS HE MAY DETERMINE TO BE NECESSARY TO SURVEY AND DETERMINE THE NUMBER AND KINDS OF TYPEWRITERS WHICH ARE AT ANY TIME SURPLUS TO THE REQUIREMENTS OF ANY AGENCY. UPON SUCH DETERMINATION THE DIRECTOR OF THE BUREAU OF FEDERAL SUPPLY IS AUTHORIZED TO DIRECT, UPON SUCH NOTICE AND IN SUCH MANNER AS HE MAY PRESCRIBE, THE HEAD OF ANY AGENCY TO SURRENDER TO THE BUREAU OF FEDERAL SUPPLY ANY AND ALL TYPEWRITING MACHINES, SURPLUS TO ITS REQUIREMENTS, AND SUCH DETERMINATION AND DIRECTION BY THE DIRECTOR OF THE BUREAU OF FEDERAL SUPPLY SHALL BE FINAL AND CONCLUSIVE UPON ALL AGENCIES, OFFICERS, AND EMPLOYEES OF THE EXECUTIVE BRANCH OF THE GOVERNMENT OF THE UNITED STATES.

THE DIRECTOR OF THE BUREAU OF FEDERAL SUPPLY IS AUTHORIZED TO CHARGE EACH AGENCY TO WHICH TYPEWRITING MACHINES ARE SUPPLIED HEREUNDER AMOUNTS EQUAL TO THE FAIR VALUE THEREOF, AS DETERMINED BY HIM, AND SUCH AMOUNTS SHALL BE CREDITED TO THE GENERAL SUPPLY FUND.

IT IS TO BE NOTED FIRST THAT THE PURPOSE TO BE EFFECTED BY THIS STATUTE, AS INDICATED BY ITS LANGUAGE, DIFFERS MATERIALLY FROM THE PURPOSE APPARENT IN THE LANGUAGE OF PRIOR APPROPRIATION ACTS, WHICH SINCE THE ACT OF MARCH 3, 1921, 41 STAT. 1307, HAVE PLACED AN ACTUAL DOLLAR LIMITATION ON THE PRICE WHICH COULD BE PAID FROM ANY APPROPRIATION ACT FOR "STANDARD" TYPEWRITING MACHINES OF VARIOUS CARRIAGE SIZES. NOT ONLY DOES THE CURRENT ACT AVOID LIMITING THE TYPE OF TYPEWRITING MACHINES EMBRACED THEREIN BY THE USE OF THE ADJECTIVE "STANDARD," BUT THE ACT ITSELF, TOGETHER WITH ITS LEGISLATIVE HISTORY, REVEALS A CONGRESSIONAL INTENT TO PROHIBIT THE PURCHASE OF ANY MACHINE SIMILAR IN CHARACTER TO A TYPEWRITING MACHINE EXCEPT BOOKKEEPING AND BILLING MACHINES AND TYPEWRITING MACHINES FOR VETERANS, UNLESS A "SUITABLE" TYPEWRITER CANNOT BE FURNISHED BY THE DIRECTOR OF FEDERAL SUPPLY OUT OF STOCKS ON HAND IN THE BUREAU. INDEED, THE LEGISLATIVE HISTORY OF H.R. 5770, WHICH ULTIMATELY BECAME PUBLIC LAW 640, SUPRA, DISCLOSES THAT ORIGINALLY THE INTENT WAS TO PROHIBIT ABSOLUTELY THE PURCHASE UNDER ANY CIRCUMSTANCES OF ANY TYPEWRITING MACHINE,"EXCEPT BOOKKEEPING AND BILLING MACHINES.' THUS, THE REPORT OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, RESPECTING H.R. 5770, AS ORIGINALLY DRAFTED ( REPORT NO. 1532, P. 14), CONTAINS THE FOLLOWING STATEMENT:

IN SUMMARY, IT IS OBVIOUS THAT THE GOVERNMENT NOW HAS MORE THAN AN ADEQUATE SUPPLY OF TYPEWRITERS TO MEET ALL REQUIREMENTS FOR THE COMING YEAR. THIS BEING THE CASE, THERE IS NO JUSTIFICATION FOR THE PURCHASE OF A SINGLE TYPEWRITER, ORDINARY, ELECTRIC, PORTABLE, OR OTHERWISE, DURING THE FISCAL YEAR 1949. TO PERMIT THE PURCHASE OF TYPEWRITERS UNDER THESE CONDITIONS WOULD BE A BREACH OF TRUST ON THE PART OF THE CONGRESS IN THESE TIMES WHEN THE CRUSHING EXPENSES OF GOVERNMENT ARE ALREADY A PORTENTOUS MENACE TO OUR SYSTEM OF FREE ENTERPRISE.

THE SAID BILL AS ORIGINALLY REPORTED BY THE COMMITTEE ON APPROPRIATIONS TO THE COMMITTEE OF THE WHOLE HOUSE CONTAINED NO EXCEPTION TO THE FLAT PROHIBITION AGAINST THE PURCHASE OF TYPEWRITERS OTHER THAN BOOKKEEPING AND BILLING MACHINES. THE AMENDMENT PERMITTING THE PURCHASE OF MACHINES WHEN NO "SUITABLE" MACHINE CAN BE FURNISHED BY THE DIRECTOR OF FEDERAL SUPPLY FROM GOVERNMENT SURPLUS WAS PROPOSED IN ITS ORIGINAL FORM ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES BY MR. MILLER OF CONNECTICUT, WITH THE FOLLOWING COMMENT, QUOTING FROM THE CONGRESSIONAL RECORD OF MAY 15, 1948, APPENDIX PAGES A-1643-4:

MR. MILLER OF CONNECTICUT. MR. CHAIRMAN, THE COMMITTEE WILL RECALL THAT LAST YEAR WE HAD SOME DEBATE ON THE QUESTION OF WRITING INTO THE TREASURY APPROPRIATION BILL A PRICE CEILING ON TYPEWRITERS. THE CHAIRMAN OF THE SUBCOMMITTEE HANDLING THE BILL THE GENTLEMAN FROM NEW JERSEY ( MR. CANFIELD) STATED AT THAT TIME THAT HIS COMMITTEE WAS GOING TO GO INTO THE WHOLE QUESTION AND MAKE A THOROUGH STUDY OF THE PROCEDURE TO BE FOLLOWED IN THE PROCUREMENT OF THE TYPEWRITERS. THAT INVESTIGATION HAS BEEN COMPLETED AND THE COMMITTEE HAS COME UP WITH SOME RATHER INTERESTING FINDINGS. I UNDERSTAND THAT THEY HAVE DISCOVERED THAT THE FEDERAL GOVERNMENT OWNS THREE AND A FRACTION TYPEWRITERS FOR EVERY SECRETARY, STENOGRAPHER, AND TYPIST ON THE FEDERAL PAY ROLL.

MY ATTENTION WAS CALLED THIS AFTERNOON TO THE FACT THAT THE LANGUAGE OF THIS APPROPRIATION BILL MAY BE SO RESTRICTIVE THAT AN AGENCY OF THE GOVERNMENT, SUCH AS THE ATOMIC ENERGY COMMISSION, FOR EXAMPLE, WOULD BE BARRED FROM PURCHASING SPECIAL TYPEWRITERS THAT IT IS ANTICIPATED THEY WILL REQUIRE NEXT YEAR. I AM INFORMED THAT THERE ARE NO TYPEWRITERS OF THE KIND NEEDED BY THE ATOMIC ENERGY COMMISSION NOW IN THE POSSESSION OF THE GOVERNMENT. THEY WILL WANT TYPEWRITERS THAT USE SYMBOLS AND HIEROGLYPHICS INSTEAD OF THE ALPHABET KEYBOARD.

BECAUSE OF THAT SITUATION I HAVE OFFERED THE FOLLOWING AMENDMENT. PAGE 22 AT THE END OF LINE 7, ADD THE FOLLOWING:

"IN THE EVENT THE DIRECTOR OF THE BUREAU OF FEDERAL SUPPLY IS UNABLE TO FURNISH ANY SUCH AGENCY WITH SUITABLE TYPEWRITERS OF SPECIAL TYPE OUT OF STOCK ON HAND, HE MAY PURCHASE SUCH MANUALLY OPERATED MACHINES AT THE AVERAGE LIST PRICE OF THE INDUSTRY LESS 30 PERCENT OUT OF FUNDS SPECIFICALLY APPROPRIATED FOR THAT PURPOSE.'

LAST YEAR I STATED VERY EMPHATICALLY THAT AS A MATTER OF PRINCIPLE I WAS OPPOSED TO WRITING INTO AN APPROPRIATION BILL A PRICE CEILING ON TYPEWRITERS. I URGED THEN THAT TYPEWRITERS BE BOUGHT AS ARE ALL OTHER GOVERNMENT SUPPLIES, EITHER THROUGH NEGOTIATION OR BY COMPETITIVE BIDS. AM GLAD THAT THE APPROPRIATIONS COMMITTEE HAS ELIMINATED FROM THIS BILL THE OBJECTIONABLE AND OBSOLETE PRICE CEILING.

IN CLOSING I WANT TO MAKE IT CLEAR THAT I DO NOT ADVOCATE ANY AMENDMENT TO THIS BILL THAT WOULD PERMIT ANY AGENCY OF THE GOVERNMENT TO BUY A SINGLE TYPEWRITER THAT IS NOT NEEDED. IF THE LANGUAGE OF THE AMENDMENT I HAVE PROPOSED IS NOT SUFFICIENTLY RESTRICTIVE AND IF AFTER FURTHER CONSIDERATION IN THE OTHER BODY MORE RESTRICTIVE LANGUAGE CAN BE SUBSTITUTED, I WOULD CERTAINLY SUPPORT IT.

MR. CANFIELD. MR. CHAIRMAN, WILL THE GENTLEMAN YIELD?

MR. MILLER OF CONNECTICUT. I YIELD.

MR. CANFIELD. IT IS THE UNDERSTANDING OF THE COMMITTEE THAT THE GENTLEMAN'S AMENDMENT APPLIES TO A UNIQUE TYPE OF TYPEWRITER WHICH HAS TO BE ESPECIALLY CONSTRUCTED AND NOT THE REGULAR MANUAL OR ELECTRIC TYPEWRITER.

MR. MILLER OF CONNECTICUT. THAT IS RIGHT. I DO NOT MEAN THAT THE TREASURY DEPARTMENT OR SOME OTHER DEPARTMENT CAN BUY A TYPEWRITER JUST BECAUSE THEY DO NOT WANT THE ONE THAT HAS ALREADY BEEN FURNISHED FOR THEM. BUT THIS IS FOR ESPECIALLY BUILT TYPEWRITERS WITH A SPECIAL KEYBOARD OR SOME OTHER SPECIAL CHARACTERISTIC. THE GOVERNMENT MIGHT NOT HAVE ANY OF THOSE, SO THESE AGENCIES COULD GO OUT AND BUY THEM UNDER THE LANGUAGE OF THIS AMENDMENT IF THEY CAN JUSTIFY THEIR PURCHASE BEFORE THE COMMITTEE ON APPROPRIATIONS.

MR. CANFIELD. THE CHAIRMAN OF THE COMMITTEE ACCEPTS THE AMENDMENT.

THUS IT IS APPARENT THAT THE AMENDMENT WAS PROPOSED SOLELY TO PERMIT THE PURCHASE OF SPECIAL-PURPOSE MACHINES WHICH WERE NOT AVAILABLE FROM GOVERNMENT STOCK AND, INASMUCH AS THE AMENDMENT ITSELF INCLUDED THE ONLY PURCHASE/PRICE LIMITATION CONTAINED IN THE ACT, IT OBVIOUSLY WAS INTENDED THAT THE PRICE LIMITATION FIXED THEREBY WOULD APPLY TO TYPEWRITING MACHINES DESIGNED FOR SPECIAL PROPOSES. IN OTHER WORDS, UNDER THE LANGUAGE OF THE BILL AS THEN PROPOSED, SUCH MACHINES WERE THE ONLY MACHINES TO WHICH THE LIMITATION COULD HAVE BEEN INTENDED TO APPLY SINCE THEY WERE THE ONLY MACHINES AUTHORIZED TO BE PURCHASED. WHILE THE LANGUAGE OF THE AMENDMENT WAS SUBSEQUENTLY CHANGED TO OMIT REFERENCE TO MACHINES OF "SPECIAL TYPE" AND TO PROVIDE FOR, AMONG OTHER THINGS, THE INCLUSION OF FEDERAL EXCISE TAXES IN THE PRICE OF THE MACHINES PURCHASED, SENATE REPORT NO. 1389 ON H.R. 5770, SHOWS THAT SUCH CHANGE WAS EFFECTED AT THE SUGGESTION OF THE BUREAU OF FEDERAL SUPPLY, TREASURY DEPARTMENT, IN ORDER THAT "SOME RELIEF * * * SHOULD BE AFFORDED TO TYPEWRITER COMPANIES" THROUGH PAYMENT OF APPLICABLE FEDERAL TAXES. THERE IS NO INDICATION IN THE RECORD THAT THE PURPOSE OF THE CHANGE WAS TO REMOVE FROM THE PROHIBITION SPECIAL-PURPOSE MACHINES SUCH AS ORIGINALLY WERE INTENDED TO BE COVERED

THEREBY.

MOREOVER, EVEN WITHOUT RESORT TO THE LEGISLATIVE HISTORY OF THE ACT, THE CONCLUSION WOULD APPEAR TO BE REQUIRED THAT THE SPECIAL-PURPOSE MACHINES REFERRED TO IN YOUR LETTER COME WITHIN THE PURVIEW OF THE ACT.

FUNK AND WAGNALLS NEW STANDARD DICTIONARY, 1942 EDITION, DEFINES "TYPEWRITING MACHINE" AS "SAME AS TYPEWRITER," AND DEFINES A TYPEWRITER AS "A MACHINE FOR PRODUCING PRINTED CHARACTERS AS A SUBSTITUTE FOR WRITING, VARIOUSLY CONSTRUCTED, BUT USUALLY HAVING A KEYBOARD, DEPRESSION OF THE KEYS SERVING TO IMPRESS A TYPE UPON THE PAPER THROUGH THE MEDIUM OF AN INKED RIBBON.'

IT APPEARS FROM THE CATALOG ILLUSTRATIONS PREPARED BY THE MANUFACTURER AND SUBMITTED WITH YOUR LETTER THAT THE INSTANT MACHINES FALL WITHIN THE CONFINES OF SUCH DEFINITION. BRIEFLY, THE PROPORTIONAL SPACING MACHINE IS DESCRIBED AS A MACHINE WHICH THROUGH "PROPORTIONAL SPACING AS COMPARED WITH CONVENTIONAL SPACING PERMITS MORE TYPEWRITTEN MATERIAL ON A GIVEN PAGE.' THE HEKTOWRITER IS SHOWN TO BE A MACHINE WHICH HAS FOR ITS PRIMARY PURPOSE THE PREPARATION OF " AN ORIGINAL REVERSE PAGE FOR REPRODUCTION ON A LIQUID DUPLICATING MACHINE" BUT WHICH, NEVERTHELESS, ACCORDING TO INFORMATION INFORMALLY OBTAINED FROM THE MANUFACTURER, IS CAPABLE OF BEING USED AS AN ORDINARY TYPEWRITER. THE VARITYPER IS DESCRIBED AS BEING A MACHINE WHICH IS CAPABLE OF PRINTING IN VARIED TYPE STYLES AND ONE WHICH "ANY COMPETENT TYPIST CAN OPERATE.' IN ADDITION, ALL THREE OF THE MACHINES ARE SHOWN TO BE KEY OPERATED AND TO HAVE THE GENERAL APPEARANCE OF TYPEWRITERS. IT SEEMS APPARENT, THEREFORE, THAT THE SAID MACHINES SHOULD BE REGARDED AS TYPEWRITING MACHINES SUCH AS ARE COVERED BY THE TREASURY DEPARTMENT APPROPRIATION ACT, 1949, SUPRA.

ANY DOUBT WHICH OTHERWISE MIGHT EXIST AS TO THE CORRECTNESS OF THIS CONCLUSION WOULD APPEAR TO BE REMOVED BY THE APPLICATION OF THE FAMILIAR RULE OF STATUTORY CONSTRUCTION,"EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS," WHICH MEANS THE EXPRESSION OF ONE THING IS THE EXCLUSION OF ANOTHER. SEE VOL. 15, WORDS AND PHRASES, PERM, USED., PAGE 765. IN THE FIRST PARAGRAPH OF THE ABOVE-QUOTED PROVISIONS OF THE ACT IT IS PROVIDED THAT THE ACT APPLIES TO "ANY TYPEWRITING MACHINES (EXCEPT BOOKKEEPING AND BILLING MACHINES AND TYPEWRITING MACHINES FOR VETERANS * * *).' UNDER THE RULE REFERRED TO THE SPECIFIC EXCLUSION OF BOOKKEEPING AND BILLING MACHINES NECESSARILY IMPLIES THAT OTHER MACHINES--- ESPECIALLY THOSE HAVING MORE SIMILARITY TO TYPEWRITERS, SUCH AS THE MACHINES HERE INVOLVED--- WERE INTENDED TO BE INCLUDED IN THE MACHINES COVERED BY THE ACT. ACCORDINGLY, IT IS THE OPINION OF THIS OFFICE THAT THE SPECIAL-PURPOSE MACHINES REFERRED TO IN YOUR LETTER OF JULY 28 ARE SUBJECT TO THE RESTRICTIONS ESTABLISHED BY THE TREASURY DEPARTMENT APPROPRIATION ACT, 1949, SUPRA.