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department, except in the case of an exigency, to obtain supplies except through the Secretary of the Treasury.”
You state that “this practice, if required by the law, has not been followed,” and your first question is whether wit is mandatory upon the Secretary of the Treasury to contract for all classes of supplies in accordance with the Solicitor's opinion.”
In my judgment, section 4 of the act of June 17, 1910, does not make it mandatory upon the Secretary of the Treasury to purchase all supplies of the character mentioned in the act, regardless of whether, as prescribed in the first proviso thereof, such articles are “in common use by or suitable to the ordinary needs of two or more such departments or establishments.” By providing "that the articles intended to be purchased in this manner;" that is, through contracts made by the Secretary with the aid of the general supply committee,“ are those in common use by or suitable to the ordinary needs of two or more such departments or establishments,” Congress limited the general duties of the Secretary and the committee to articles possessing such characteristics. By providing further, however, “but the said Secretary shall have discretion to amend the annual common supply schedule from time to time as to any articles that, in his judgment, can as well be thus purchased,” Congress gave the Secretary a discretion as to adding other articles irrespective of the question whether they were in common use by or suitable to the ordinary needs of two or more departments or establishments. The Secretary being authorized to exercise his judgment as to the addition of any article to the schedule, there can be no mandatory duty resting upon him to exercise that power.
The fact, mentioned by the Solicitor, “that there is no provision in this statute which expressly or impliedly permits any department, except in the case of an exigency, to obtain supplies except through the Secretary of the Treasury” is immaterial, since authority in the other departments to make such contracts existed prior to the passage of the present act, which (sec. 5) merely repeals “all laws or parts of laws inconsistent with this act." The primary object of the act in question is to effect the purchase, in the most efficient manner, having regard to quality and economy, of certain supplies in common use by or suitable to the ordinary needs of two or more departments or establishments. The authority given the Secretary to add other articles to the annual common supply schedule is, as stated, discretionary with him, having in view the objects intended to be accomplished. If he does not choose to exercise that power in any case, the department or establishment concerned is certainly not to be denied authority to purchase the desired article in the manner theretofore authorized by law. So, as to any article which might possibly be scheduled by the committee in the first instance, as being in common use, etc., if they fail to do so and the Secretary does not add it after his attention is called to the matter, authority would likewise cxist in the department or establishment concerned to purchase it. In other words, the act is not to be construed so as to embarrass the operations of the Government.
This disposes of your first question
Your second question is whether there is anything in the act requiring contracts for any classes of supplies except "common supplies” to be purchased through the medium of the general supply committee. In view of what has already been said, the answer to this question must be “yes, if the Secretary should conclude that any such supplies, being of the miscellaneous character referred to in the act, may as well be thus purchased, and add them to the common supply schedule.'
Your third question is stated as follows:
“Does the law, in your opinion, require all purchases of all kinds of supplies contemplated by the act and intended for use in the field service outside of Washington to be made from the contractor under the general supply schedule, such, for example, as supplies for the Life-Saving Service, Public Health and Marine-Hospital Service, and the Postal Service ?
Upon this question the Solicitor of the Treasury held that "departments and governmental establishments having field service must purchase their supplies under the general schedule; and from the contractor under the general supply committee, and not from an outside independent contractor.”
I am advised by a representative of the general supply committee that “to attempt to act in accordance with this opinion would require an amount of machinery with which the committee has not been provided," and that, “on the other hand, a construction of the law which would limit the supplies in question to those used in the department buildings within the District of Columbia would so restrict the quantities that much of the valuable work done, and the progress already made looking toward a uniformity of supplies and prices, for which the general supply committee was established, would be nullified to a large degree if not entirely."
The first sentence of section 4 refers to supplies "for the the executive departments and other government establishments in Washington," but subsequently it is provided that “no department or establishment shall purchase or draw supplies from the common schedule through more than one office or bureau, except in case of detached bureaus or offices having field or outlying service, which may purchase directly from the contractor with the permission of the head of their department.”
This latter clause seems clearly to imply that the authority given you to advertise and contract for supplies "for the executive department and other government establishments in Washington" covers supplies required by such departments for “detached bureaus or offices having field or outlying service,” such bureaus or offices, however, being given the privilege, with the permission of the head of their department, to “purchase,” i. e., order, their supplies directly from the contractor. Thus, in my opinion of July 25, 1910, it was held that the authority of such bureaus or offices to order supplies directly from the contractor applied “to all of their supplies, those needed for use in the city of Washington, as well as elsewhere" (28 Op. 380,383).
It will be observed that, as to supplies for detached bureaus or offices having field or outlying service, the limitations of the act with respect to the character of supplies also apply. Whether a given article used by the field service of a department, or a given service, comes within the statute, can only be determined as the case arises. Speaking generally, however, I may say that there seems to be no necessity for construing the act in such a way as to defeat its objects or embarrass the operations of any department or establishment of the Government. The general purpose of the act is to provide a method by which the Government may be enabled to secure a better class of supplies in a more economical way. If to schedule and standardize certain articles used by detached bureaus and offices having field or outlying service would subserve no such purpose but only embarrass the committee or the department concerned, the committee would seem to be justified in omitting them. The fact that the Secretary may amend the schedule from time to time by adding any article that in his judgment may as well be thus purchased will enable him to supply any omissions.
Your next question is as follows:
“In connection with the postal service, attention is invited to the act of April 28, 1904 (33 Stat. 440), which creates the office of purchasing agent in the Post-Office Department, and defines his duties. Please advise me if the repealing clause of the act of June 17, 1910, amends, modifies, or repeals the act of April 28, 1904.”
The repealing clause of the act in question (sec. 5) repeals "all laws or parts of laws inconsistent with this act.” It seems clear, therefore, that the act of April 28, 1904, was amended and modified only in so far as the act in question is inconsistent therewith. It follows that supplies required for the use of the Post-Office Department coming within the description "all supplies of fuel, ice, stationery, and other miscellaneous supplies for the executive departments and other government establishments in Washington” which are “in common use by or suitable to the ordinary needs of two or more such departments or establishments,' and which have been placed by the general supply committee upon the annual supply schedule, as well as any article
of the miscellaneous character referred to added by the Secretary to such schedule, must, "when the public exigencies do not require the immediate delivery of the article," be advertised and contracted for by the Secretary of the Treasury, under the provisions of the act of June 17, 1910. Otherwise, the act of April 28, 1904, continues in force.
You next inquire whether the clause of the proviso to section 4, "but the said Secretary shall have discretion to amend the annual common supply schedule from time to time as to any articles that, in his judgment, can be as well thus purchased,” authorizes you to make awards and revise the annual schedule at any time during the year” that you may deem proper.
It seems to me that, reading the language quoted by you in connection with the authority given you by the first sentence to advertise and contract upon such days as you may designate, an intention is clearly apparent to vest in you the discretion which an affirmative decision of this question would imply, and you are accordingly so advised. ing this, I assume that by the word “revise" you mean to "amend” the annual common supply schedule by adding other articles of the character covered by the act.
I also answer in the assirmative your question whether the provision “that telephone service, electric light, and power service purchased or contracted for from companies or individuals shall be so obtained by him," means that you "shall obtain such service through the medium of the general supply committee.” This question has already been so decided in an opinion by the Acting AttorneyGeneral of July 25th last (28 Op. 380).
Finally, referring to the provision that “no department or establishment shall purchase or draw supplies from the common schedule through more than one office or bureau,” you inquire whether this requires “the establishment of a single supply division in each department which shall order and receive all materials needed for that department."
I see no reason for interpreting this clause to mean anything more or less than what its language plainly indicates. It does not purport to limit the number of supply bureaus or offices, but, for the purposes of more efficient administration, requires each department or establishment, whether