A-3592, AUGUST 6, 1924, 4 COMP. GEN. 159

A-3592, AUGUST 6, 1924, 4 COMP. GEN. 159

CONTRACTS - FORMAL - INFORMAL - INTERIOR DEPARTMENT UNDER THE ACT OF JUNE 5, 1924, 43 STAT. 392, THE PURCHASE OF SUPPLIES AND EQUIPMENT OR THE PROCUREMENT OF SERVICES FOR THE DEPARTMENT OF THE INTERIOR MAY BE MADE IN OPEN MARKET WITHOUT COMPLIANCE WITH SECTIONS 3709 AND 3744, REVISED STATUTES, IN THE MANNER COMMON AMONG BUSINESS MEN, WHEN THE AGGREGATE AMOUNT OF THE PURCHASE OR SERVICE DOES NOT EXCEED $100 IN ANY INSTANCE. THE PURCHASE OF SUPPLIES BY THE DEPARTMENT OF THE INTERIOR BY PROPOSAL AND ACCEPTANCE, WHEN THE AGGREGATE AMOUNT OF THE PURCHASE IS IN EXCESS OF $100 IN ANY ONE INSTANCE, MUST BE BY FORMAL CONTRACT UNDER SECTION 3744, REVISED STATUTES, EXCEPT IN THOSE CASES IN WHICH THE THING PURCHASED AND THE MONEY IN PAYMENT THEREFOR PASS BETWEEN THE VENDOR AND THE VENDEE AT THE SAME TIME. THE QUESTION OF WHETHER IT IS MORE ECONOMICAL, ETC., TO MAKE A SUCCESSION OF INDEPENDENT PURCHASES OF THE SAME CLASS OF SUPPLIES, ETC., RATHER THAN TO ENTER INTO A CONTRACT FOR A GIVEN PERIOD PROVIDING FOR THE FURNISHING OF SUCH SUPPLIES AS REQUIRED AND ORDERED, IS ONE FOR ADMINISTRATIVE DETERMINATION.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, AUGUST 6, 1924:

THE FOLLOWING LETTER, DATED JUNE 11, 1924, HAS BEEN RECEIVED FROM THE SUPERINTENDENT, MISSION INDIAN AGENCY, RIVERSIDE, CALIF.:

REFERENCE IS MADE TO THE VARIOUS REGULATIONS COVERING IMMEDIATE DELIVERY AND PAYMENT AND CONTINUOUS SERVICE, AND THE NECESSITY FOR CONTRACTS.

A RATHER PECULIAR CONDITION EXISTS AT THIS UNIT, AND THE FOLLOWING IS SUBMITTED WITH THE HOPE THAT YOUR OFFICE CAN RELIEVE THE SITUATION:

THE HEADQUARTERS FOR THE MISSION INDIAN AGENCY ARE IN THE TOWN OF RIVERSIDE, CALIFORNIA, AND THE 31 RESERVATIONS UNDER THIS JURISDICTION RANGE FROM 35 TO 200 MILES DISTANT. THERE ARE FIVE DAY SCHOOLS AND A HOSPITAL. THE HOSPITAL IS LOCATED 35 MILES AWAY, AND THE DAY SCHOOLS FROM 60 TO 150 MILES. THESE DAY SCHOOLS ARE ISOLATED, SITUATED IN THE BACK COUNTRY, AND ARE FOR THE INDIAN CHILDREN WHO CAN NOT ATTEND PUBLIC SCHOOLS AND ARE TOO YOUNG TO BE SENT TO NONRESERVATION SCHOOLS. MOST OF THESE CHILDREN ARE IN NEED OF NOURISHING FOODS, SUCH AS FRESH MEATS, VEGETABLES, ETC. THESE CAN ONLY BE OBTAINED FROM LOCAL STORES ADJACENT TO THE RESERVATIONS. AS EACH SCHOOL IS ISOLATED, THERE ARE NATURALLY BUT FEW STORES. AT PALA THERE IS ONLY ONE STORE; AT MESA GRANDE THERE IS BUT ONE STORE, 1/2 MILE DISTANT; AND AT SANTA YSABEL STORE THERE IS BUT ONE STORE. THE VOLCAN SCHOOL TRADES AT THE SANTA YSABEL STORE, WHICH IS 4 MILES FROM THE SCHOOL. AT CAMPO THERE IS BUT ONE STORE, AND THAT IS 10 MILES FROM THE SCHOOL. THE VEGETABLES AND MEATS, C., NEEDED FOR THE CHILDREN MUST BE PURCHASED FROM THESE STORES. THERE IS NO OTHER SOURCE FROM WHICH THEY CAN BE OBTAINED, AS THE INDIANS DO NOT HAVE A SURPLUS TO SELL; AND THEY CAN NOT BE PURCHASED FROM THE SURROUNDING TOWNS, ESPECIALLY IN THE WARM WEATHER. THESE PURCHASES RANGE FROM 80 CENTS TO $5.00 PER WEEK PER SCHOOL; THE AMOUNTS ARE ALL SMALL AND NOT OF SUFFICIENT IMPORTANCE TO WARRANT A STOREKEEPER TO EXECUTE A CONTRACT COVERING DELIVERY OF SUCH. IN FACT, IT HAS ALREADY BEEN INTIMATED THAT NO CONTRACT WILL BE ENTERED INTO, THE STOREKEEPERS WELL REALIZING THAT THE GOVERNMENT MUST PURCHASE FROM THEM OR ELSE GO WITHOUT. AS THE SUPPLIES ARE NECESSARY FOR THE CHILDREN, IT IS IMPOSSIBLE TO DO WITHOUT THEM; AND AS THE TRADERS ARE DISINCLINED TO ENTER INTO A CONTRACT, IT COMPLICATES MATTERS FOR THIS AGENCY.

THERE HAS BEEN CONSIDERABLE DELAY IN SETTLING BILLS WITHIN THE 15 DAY LIMIT. THIS IS DUE TO THE FACT THAT THE DEALERS ARE ALSO NEGLIGENT IN THIS RESPECT AND DESPITE REPEATED URGINGS CONTINUE TO SEND IN THE BILLS MONTHLY, AND EVEN QUARTERLY. THEY HAVE BEEN FOLLOWING THIS PRACTICE FOR YEARS, AND AS THEY HAVE ALWAYS RECEIVED THEIR MONEY HERETOFORE THEY CANNOT UNDERSTAND THE NECESSITY FOR HASTE NOR UNDERSTAND WHY A CONTRACT MUST BE ENTERED INTO FOR THE SMALL AMOUNTS PURCHASED BY THIS OFFICE. IN FACT, THEY RATHER RESENT OUR URGINGS BOTH FOR THE CONTRACT AND PROMPT SUBMISSAL OF BILLS. IN THIS SECTION, BACK-COUNTRY MERCHANTS CONSIDER 30 DAYS AS "CASH; " THEY HAVE ALWAYS DONE SO, AND DO NOT CARE TO CHANGE AT THIS TIME.

WHEN BILLS ARE RECEIVED HERE THEY ARE VOUCHERED AND RETURNED TO THE TEACHER OR EMPLOYEE WHO MADE THE PURCHASE, WITH THE REQUEST THAT HE SIGN AND SEND TO THE MERCHANT WITH INSTRUCTIONS FOR HIM TO SIGN AND SEND TO THIS OFFICE. ALTHOUGH A CHECK IS KEPT HERE, IT IS NOT UNUSUAL FOR A STOREKEEPER TO KEEP A VOUCHER FOR A MONTH OR SIX WEEKS, ALTHOUGH THIS OFFICE HAS FREQUENTLY WRITTEN ASKING FOR ITS RETURN. IN A FEW INSTANCES IT HAS BEEN NECESSARY TO WRITE AN EMPLOYEE ASKING HIM TO GO TO THE STORE AND MAIL THE VOUCHER PERSONALLY. MOST OF OUR PURCHASES ARE MADE BY MAIL OR PHONE, AND FREQUENTLY THE SUPPLIES ARE "SENT UP" BY AN INDIAN OR A WHITE MAN WHO IS ,GOING THAT WAY.'

THE SAME IS ALSO TRUE IN REGARD TO RATION PURCHASES. INDIANS ARE GIVEN ORDERS ON STORES IN THEIR IMMEDIATE NEIGHBORHOOD, AND AS THE INDIANS LIVE IN THE REMOTE SECTIONS, THERE IS USUALLY BUT ONE STORE. ONLY A FEW MONTHS AGO WE RECEIVED A BILL FOR SEVEN MONTHS' RATIONS, AND I DOUBT THAT THE STOREKEEPER WOULD HAVE SENT IT IN THEN HAD NOT THE RATIONER DIED. PART OF THIS BILL REVERTED TO THE PREVIOUS FISCAL YEAR AND IT WAS NECESSARY TO SEND IT IN AS A CLAIM.

AT THE SOBOBA HOSPITAL MUCH THE SAME CONDITION PREVAILS, ALTHOUGH THE HOSPITAL IS MUCH BETTER LOCATED THAN THE DAY SCHOOLS. IT IS 4 MILES FROM SAN JACINTO AND 5 MILES FROM HEMET, CALIF., BOTH SMALL TOWNS. THE MERCHANTS HERE ARE NOT INCLINED TO ENTER INTO CONTRACT FOR MEATS, VEGETABLES, FRUITS, ETC., REQUIRED FOR THE PATIENTS, BECAUSE THE AMOUNTS REQUIRED VARY WITH THE NEEDS OF THE INSTITUTION. IT WAS ONLY AFTER CONSIDERABLE CORRESPONDENCE AND PERSONAL VISITS THAT A DAIRYMAN AT SAN JACINTO CONSENTED TO ENTER INTO A CONTRACT TO FURNISH MILK, AND THEN HE INSISTED UPON A MINIMUM OF 10 QUARTS A DAY BEFORE HE WOULD SIGN IT. THESE MERCHANTS ARE ALSO LAX IN SUBMITTING BILLS DESPITE OUR URGINGS, AND UNLESS PAYMENT IS MADE TO THEM WITHIN A REASONABLE LENGTH OF TIME THEY WILL WITHDRAW CREDIT FROM THE INSTITUTION.

AS MATTERS NOW STAND, IT IS IMPOSSIBLE IN MANY INSTANCES TO COMPLY WITH THE REGULATIONS REQUIRING PAYMENT WITHIN 15 DAYS FROM DATE OF DELIVERY AND CONTINUOUS SERVICE, AND I WOULD APPRECIATE ADVICE FROM YOUR OFFICE AS TO WHAT METHOD TO PURSUE TO AVOID EXCEPTIONS TO ACCOUNTS.

A DISBURSING OFFICER IS ENTITLED UNDER THE LAW TO A DECISION ONLY ON A QUESTION SPECIFICALLY INVOLVED IN A VOUCHER WHICH IS PROPERLY BEFORE HIM FOR PAYMENT, 25 COMP. DEC., 653; HOWEVER, THE MATTERS SUBMITTED APPEARING SUCH AS TO WHICH THE SUPERINTENDENT SHOULD BE ADVISED, IT IS DEEMED PROPER AND NECESSARY TO BRING THEM TO YOUR ATTENTION AND IN SO DOING TO STATE GENERALLY THE LAW AND PROCEDURE APPLICABLE.

THE ACT OF JUNE 5, 1924, 43 STAT. 392, PROVIDES:

THE PURCHASE OF SUPPLIES AND EQUIPMENT OR THE PROCUREMENT OF SERVICES FOR THE DEPARTMENT OF THE INTERIOR, THE BUREAUS AND OFFICES THEREOF, INCLUDING HOWARD UNIVERSITY AND THE COLUMBIA INSTITUTION FOR THE DEAF, AT THE SEAT OF GOVERNMENT, AS WELL AS THOSE LOCATED IN THE FIELD OUTSIDE OF THE DISTRICT OF COLUMBIA, MAY BE MADE IN OPEN MARKET WITHOUT COMPLIANCE WITH SECTIONS 3709 AND 3744, OF THE REVISED STATUTES OF THE UNITED STATES, IN THE MANNER, COMMON AMONG BUSINESS MEN, WHEN THE AGGREGATE AMOUNT OF THE PURCHASE OR THE SERVICE DOES NOT EXCEED $100 IN ANY INSTANCE.

IN CONSTRUING THE $50 PURCHASE PROVISION OF THE INDIAN OFFICE, 39 STAT. 126, IT WAS SAID IN DECISION OF NOVEMBER 14, 1923, THAT:

SECTION 3744, REVISED STATUTES, PROVIDES:

"IT SHALL BE THE DUTY OF THE SECRETARY OF WAR, OF THE SECRETARY OF THE NAVY, AND OF THE SECRETARY OF THE INTERIOR TO CAUSE AND REQUIRE EVERY CONTRACT MADE BY THEM SEVERALLY ON BEHALF OF THE GOVERNMENT, OR BY THEIR OFFICERS UNDER THEM APPOINTED TO MAKE SUCH CONTRACTS, TO BE REDUCED TO WRITING AND SIGNED BY THE CONTRACTING PARTIES WITH THEIR NAMES AT THE END THEREOF; * * *.'

THE WORD "CONTINUOUS" IS NOT OUTLINED IN SECTION 3744, REVISED STATUTES, BUT IN THE APPLICATION OF THAT SECTION IT FREQUENTLY HAS BEEN USED TO DESCRIBE A SERIES OF DAILY PURCHASES OF SUPPLIES, ETC., OR INTERMITTENT PURCHASES THEREOF, OVER A GIVEN PERIOD.

THE MATTER OF WHETHER IT IS MORE ECONOMICAL, ETC., TO MAKE A SUCCESSION OF INDEPENDENT PURCHASES OF THE SAME CLASSES OF SUPPLIES, ETC., RATHER THAN TO ENTER INTO A CONTRACT FOR A GIVEN PERIOD PROVIDING FOR THE FURNISHING OF SUCH SUPPLIES AS REQUIRED AND ORDERED, IS ADMINISTRATIVE.

WHAT WAS SAID IN THE DECISION QUOTED, SUPRA, IS APPLICABLE HERE. WHERE IT IS PRACTICABLE AND MORE ECONOMICAL TO ENTER INTO A CONTRACT FOR A GIVEN PERIOD PROVIDING FOR THE FURNISHING OF THE SUPPLIES, AS REQUIRED AND ORDERED DURING SUCH PERIOD, IT IS NECESSARY TO HAVE THE CONTRACT REDUCED TO WRITING AND SIGNED BY THE PARTIES WITH THEIR NAMES AT THE END THEREOF, AS REQUIRED BY SECTION 3744, REVISED STATUTES, PROVIDED THE EXPENDITURES OVER THE PERIOD OF THE CONTRACT ARE ESTIMATED TO EXCEED $100. FOR INSTANCE, IF A CONTRACT FOR PASTURAGE OR STORAGE IS ENTERED INTO FOR A GIVEN PERIOD, TO WIT, SIX MONTHS, AND THE RATE PER MONTH IS SUCH AS NOT TO REQUIRE EXPENDITURES IN EXCESS OF $100 FOR THE ENTIRE PERIOD, SUCH A CONTRACT, THOUGH FOR A CONTINUOUS SERVICE, IS NOT REQUIRED TO BE REDUCED TO WRITING AND SIGNED IN THE MANNER PRESCRIBED IN SECTION 3744, REVISED STATUTES, AND THE SITUATION IS THE SAME WHETHER IT INVOLVES THE PROCUREMENT OF NONPERSONAL SERVICES, SUCH AS PASTURAGE, STORAGE, ETC., OR THE PURCHASE OF SUPPLIES.

IN THE CASE OF SINGLE PURCHASES OR PROCUREMENTS IN EXCESS OF $100, THE REQUIREMENTS OF SECTION 3744, REVISED STATUTES, MUST BE COMPLIED WITH UNLESS THE THING PURCHASED OR PROCURED AND THE MONEY IN PAYMENT THEREFOR PASS BETWEEN VENDOR AND VENDEE AT THE SAME TIME, AS IN THE CASE OF AN ORDINARY PURCHASE OVER THE COUNTER OF A DEALER. 3 COMP. GEN. 314. THOSE INSTANCES WHERE THE THING PURCHASED AND THE MONEY IN PAYMENT DO NOT PASS BETWEEN THE VENDOR AND VENDEE AT THE SAME TIME AND THERE HAS BEEN NO CONTRACT AS REQUIRED BY SECTION 3744, REVISED STATUTES, THE DISBURSING OFFICER SHOULD NOT MAKE PAYMENT, BUT CLAIMS ARISING THEREFROM SHOULD BE FORWARDED WITH ADMINISTRATIVE ACTION AND RECOMMENDATION TO THE GENERAL ACCOUNTING OFFICE FOR DIRECT SETTLEMENT. IN THIS CONNECTION ATTENTION IS INVITED TO DECISION OF APRIL 24, 1924, ON A SUBMISSION BY CHARLES M. DONOHUE, SURVEYOR GENERAL AND DISBURSING OFFICER, GENERAL LAND OFFICE, AND LETTER OF JUNE 11, 1924, TO YOU RELATIVE TO THE MATTER.