A-48641, MAY 5, 1933, 12 COMP. GEN. 618

A-48641, MAY 5, 1933, 12 COMP. GEN. 618

CONTRACTS - FOREIGN GOODS - BOOKS, PERIODICALS, AND NEWSPAPERS BOOKS, PERIODICALS, MAGAZINES, NEWSPAPERS, ETC., ARE NOT "ARTICLES, MATERIALS, AND SUPPLIES" WITHIN THE REQUIREMENTS OF SECTION 2, TITLE III, OF THE ACT OF MARCH 3, 1933, 47 STAT. 1520.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, MAY 5, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 21, 1933, AS FOLLOWS:

IN THE PROCUREMENT OF BOOKS, PERIODICALS, MAGAZINES, NEWSPAPERS, AND THE PRINTING OF BRIEFS FOR THE NEEDS OF THE DEPARTMENT, REQUIREMENT HAS BEEN MADE THAT PUBLISHERS CERTIFY THAT THE ARTICLES, MATERIALS, AND SUPPLIES USED IN THE MANUFACTURE THEREOF ARE FROM ARTICLES, MATERIALS, AND SUPPLIES PRODUCED OR MANUFACTURED "SUBSTANTIALLY" IN THE UNITED STATES. OBJECTION TO MAKING SUCH CERTIFICATION HAS BEEN RAISED ON THE PART OF THE PUBLISHERS AND PRINTERS, WHO STATE THAT IT IS IMPOSSIBLE TO CERTIFY THAT THE INK, THREAD, PULP, AND MATERIAL USED IN THE MANUFACTURING OF PAPER, BINDING, ETC., ARE PRODUCED FROM ARTICLES OR MATERIALS "SUBSTANTIALLY" MANUFACTURED OR PRODUCED IN THE UNITED STATES. THE WORD "SUBSTANTIAL" IS A RELATIVE TERM AND THE PUBLISHERS AND PRINTERS ARE UNWILLING TO MAKE A GENERAL STATEMENT IN THE ABSENCE OF DEFINITE KNOWLEDGE WHICH THEY ORDINARILY DO NOT HAVE AND WHICH IS IMPOSSIBLE OR INORDINATELY EXPENSIVE TO SECURE.

SUCH OBJECTION WOULD SEEM TO HAVE CONSIDERABLE MERIT, PARTICULARLY IN CASES WHERE SINGLE VOLUMES ARE FOR PROCUREMENT. WHILE IT MIGHT BE POSSIBLE FOR A PUBLISHER TO CERTIFY WITH SOME DEGREE OF CERTAINTY WITH RESPECT TO SOME RECENTLY PUBLISHED BOOKS, ETC., IT WOULD BE OBVIOUSLY OUT OF ALL PROPORTION TO THE COST INVOLVED FOR A BOOKSELLER (NOT NECESSARILY THE PUBLISHER) TO ASCERTAIN THE HISTORY OF A PARTICULAR BOOK PUBLISHED FROM EIGHT TO TEN OR MORE YEARS AGO.

IN THE PURCHASE OF SCIENTIFIC BOOKS IT IS OFTTIMES IMPOSSIBLE TO SECURE ANY OTHER THAN A FOREIGN PUBLICATION. IN OTHER INSTANCES THERE ARE AMERICAN EDITIONS OF THESE PUBLICATIONS, BUT THE FOREIGN EDITION IS PREFERRED BECAUSE IT IS MORE ACCURATE OR BECAUSE IT IS DESIRED IN THE ORIGINAL OR FOR SIMILAR REASONS.

UNDER THE PROVISIONS OF SECTION 2 OF TITLE III OF THE TREASURY-POST OFFICE APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1934, APPROVED MARCH 3, 1933, THE HEAD OF A DEPARTMENT MAY DETERMINE THAT IT IS INCONSISTENT WITH THE PUBLIC INTEREST OR THAT THE COST IS UNREASONABLE AND THE PARTICULAR BOOKS, MAGAZINES, OR PERIODICALS MAY BE PURCHASED, BUT THIS WOULD OBVIOUSLY REQUIRE A CERTIFICATION EACH TIME BY THE HEAD OF THE DEPARTMENT, WHICH WOULD ADD CONSIDERABLE LABOR TO HIS PRESENT MULTIFARIOUS DUTIES. MOREOVER, SINCE THE CERTIFICATION WOULD BE SUPERFLUOUS UNLESS THE USE OF FOREIGN MATERIALS IN THE PRODUCTION OF THE PUBLICATION WAS DISCLOSED, THE STATEMENTS IN THIS RESPECT WHICH VENDORS FIND SO BURDENSOME AND IMPRACTICAL WOULD STILL BE NECESSARY.

IN VIEW, THEREFORE, OF THE FACTS AND CIRCUMSTANCES ABOVE STATED, YOUR DECISION IS REQUESTED (1) WHETHER OR NOT BOOKS, NEWSPAPERS, PRINTED BRIEFS, PERIODICALS, MAGAZINES, AND SIMILAR REQUIREMENTS ARE INCLUDED WITHIN THE PROVISIONS OF SECTION 2 OF TITLE III OF THE ACT OF MARCH 3, AND IF SO, (2) WHETHER THE HEAD OF THE DEPARTMENT MAY MAKE A GENERAL FINDING THAT IT WOULD BE INCONSISTENT WITH THE PUBLIC INTEREST TO LIMIT THE PURCHASE OF THE PRINTED MATERIAL ABOVE DESCRIBED TO THAT IN THE PRODUCTION OF WHICH ONLY MATERIALS OF DOMESTIC GROWTH OR MANUFACTURE HAD BEEN USED.

IF THE HEAD OF THE DEPARTMENT MAY NOT MAKE SUCH A GENERAL FINDING, YOUR DECISION IS REQUESTED AS TO WHETHER THE AUTHORITY TO MAKE THE SPECIFIC CERTIFICATION AS TO INCONSISTENCY WITH PUBLIC INTEREST OR UNREASONABLE COST IN INDIVIDUAL CASES MAY BE DELEGATED BY THE HEAD OF THE DEPARTMENT TO A SUBORDINATE OFFICER.

THE REFERRED-TO TITLE III, SECTION 2, OF THE ACT OF MARCH 3, 1933,PUBLIC NO. 428, 47 STAT. 1520, IS AS FOLLOWS:

NOTWITHSTANDING ANY OTHER PROVISION OF LAW, AND UNLESS THE HEAD OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT CONCERNED SHALL DETERMINE IT TO BE INCONSISTENT WITH THE PUBLIC INTEREST, OR THE COST TO BE UNREASONABLE, ONLY SUCH UNMANUFACTURED ARTICLES, MATERIALS, AND SUPPLIES AS HAVE BEEN MINED OR PRODUCED IN THE UNITED STATES, AND ONLY SUCH MANUFACTURED ARTICLES, MATERIALS, AND SUPPLIES AS HAVE BEEN MANUFACTURED IN THE UNITED STATES SUBSTANTIALLY ALL FROM ARTICLES, MATERIALS, OR SUPPLIES MINED, PRODUCED, OR MANUFACTURED, AS THE CASE MAY BE, IN THE UNITED STATES, SHALL BE ACQUIRED FOR PUBLIC USE. THIS SECTION SHALL NOT APPLY WITH RESPECT TO ARTICLES, MATERIALS, OR SUPPLIES FOR USE OUTSIDE THE UNITED STATES, OR IF ARTICLES, MATERIALS, OR SUPPLIES OF THE CLASS OR KIND TO BE USED OR THE ARTICLES, MATERIALS, OR SUPPLIES FROM WHICH THEY ARE MANUFACTURED ARE NOT MINED, PRODUCED, OR MANUFACTURED, AS THE CASE MAY BE, IN THE UNITED STATES IN SUFFICIENT AND REASONABLY AVAILABLE COMMERCIAL QUANTITIES AND OF A SATISFACTORY QUALITY.

AS A GENERAL RULE, APPROPRIATIONS FOR THE PURCHASE OF MATERIALS AND SUPPLIES ARE NOT AVAILABLE FOR THE PURCHASE OF BOOKS, PERIODICALS, MAGAZINES, NEWSPAPERS, ETC., THE REQUIREMENT BEING FOR SPECIFIC AUTHORIZATION TO PERMIT APPROPRIATIONS TO BE USED FOR SUCH PURPOSES. SEE SECTION 3 OF THE ACT OF MARCH 15, 1898, 30 STAT. 316, 4 COMP. DEC. 551; 6 ID. 311; ID. 668. SEE, ALSO, SECTION 192, REVISED STATUTES, AS AMENDED BY THE ACT OF JUNE 22, 1906, 34 STAT. 449, AND SECTION 1779, REVISED STATUTES; 2 COMP. GEN. 451. CONSEQUENTLY, THERE WOULD APPEAR TO BE A REASONABLE BASIS FOR CONCLUDING THAT THE TERMS "ARTICLES, MATERIALS, AND SUPPLIES" DO NOT INCLUDE BOOKS, PERIODICALS, MAGAZINES, NEWSPAPERS, AND THE PRINTING OF BRIEFS, AND SINCE RESTRICTING THE ACQUISITION OF SUCH ITEMS WAS NOT A PART OF THE PURPOSE SOUGHT TO BE ACCOMPLISHED BY THE LEGISLATION IN QUESTION, I HAVE TO ADVISE THAT SUCH ITEMS NEED NOT BE REGARDED AS "ARTICLES, MATERIALS, AND SUPPLIES" WITHIN THE REQUIREMENTS OF TITLE III OF THE ACT OF MARCH 3, 1933. IN VIEW OF THIS CONCLUSION, AN ANSWER TO YOUR SECOND QUESTION IS UNNECESSARY.