TITLE:  Bureau of Land Management: Payment of Pocatello Field Office, B-290901, December 16, 2002
BNUMBER:  B-290901
DATE:  December 16, 2002
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Bureau of Land Management: Payment of Pocatello Field Office, B-290901, December
16, 2002

   Decision
    
    
Matter of:   Bureau of Land Management: Payment of Pocatello Field Office
Photocopying Costs
    
File:            B-290901
    
Date:           December 16, 2002
    
DIGEST
    
Photocopying services procured by a Bureau of Land Management field office
from a commercial source in violation of 44 U.S.C. S: 501, requiring that
all such services be procured through the Government Printing Office
absent a waiver, were not authorized and may not be paid with federal
funds.
    
DECISION
    
A certifying officer of the Bureau of Land Management (BLM), U.S.
Department of the Interior, has requested an advance decision under 31
U.S.C. S: 3529 regarding the payment of photocopying services incurred by
the Pocatello Field Office in Idaho.  For the following reasons, we
conclude that absent a waiver, BLM's appropriated funds are not available
to pay for the services because of the statutory prohibition on procuring
such services from a commercial vendor. 
    
BACKGROUND
    
When the BLM Pocatello field office was named as a party to a lawsuit in
the federal district court, the field office assigned staff members to
help the Interior Solicitor's office prepare documents needed for the
lawsuit.  The documents needed filled six large boxes and included
monitoring files, case files, allotment files, trespass files, technical
documents, drawings, photographs and odd-sized maps.  Each document needed
to be *Bate Stamped,* meaning each page in the documents needed to be
stamped, numbered sequentially by page and recorded into an index using a
spreadsheet format. 
    
The Interior attorney sent an e-mail message to the Pocatello staff member
in charge as well as others at the field office on November 20, 2001,
requesting that three copies of the material be provided to him by
November 28.  However, work on assembling the documents did not begin
until November 26 when the staff member in charge returned from leave. 
When notified of the delay, the Interior attorney agreed to an extension
to December 10 for at least three copies of the files.  Given the volume
of records involved and the tight timeframes, the field office staff
decided to use a local Kinko's to copy the documents.  The records were
delivered to Kinko's on November 28 and one copy was returned to the
office for Bate Stamping on December 1.  The first copy was paid for by
credit card ($2,109.90) by an authorized charge card holder.[1]  The
record was sent back to Kinko's and an additional eight copies were
completed on December 4.  The bill for the additional copies came to
$19,501.93.  BLM has not paid that bill.
    
The BLM Idaho State Office issued guidance to all employees setting forth
the procedures for obtaining printing and photocopying services, including
the following:
    
*All printing services (printing, photocopying, binding, and collating)
are required to be obtained through an established Government Printing
Office (GPO) contract, or waivers can be granted from GPO.  These waivers
can normally be obtained with a simple phone call . . .  In-house copy
machines are to be used only for simple copy jobs (300 copied pages or
less).  The State Office has a local GPO photocopy contract which must be
used for the larger jobs.  This contract includes many services and, in
most cases, can deliver in 24 hours.*
    
BLM Instruction Memorandum No. ID-2000-054, April 14, 2000.  Since the
Pocatello staff did not comply with these procedures in this case, the
Pocatello Field Office submitted the procurement action for ratification
of the unauthorized commitment to the Idaho State Office chief contracting
officer and the State Director in accordance with BLM regulations.  The
regulations also include requesting concurrence from the Interior
Solicitor for amounts exceeding $2,500.  BLM Manual 1510-1.602-3, June 15,
2000, and BLM Instruction Memorandum No. ID-201-004, Oct. 11, 2000.  The
ratifying officials declined to ratify the purchase of Kinko's services
based on their determination that 44 U.S.C. S: 501 and Federal Acquisition
Regulation Part 8.8 require agencies to obtain printing and duplicating
services through the Government Printing Office (GPO) or a GPO contract
vendor in the absence of a waiver for the services to be performed at a
commercial firm.  *Ratification Action, Report of Unauthorized
Procurement, Bureau of Land Management Printing at Kinkos,* signed by
Julie Lewis, State Office Chief Contracting Officer (May 17, 2002),
Kenneth M. Sebby, Solicitor (May 22, 2002) and Jonathan S. Fost, Acting
State Director (May 23, 2002) (hereafter, *Ratification Determination*). 
The Ratification Determination stated that GPO will not issue a waiver for
more than $1,000.00 or issue a waiver retroactively.  Id. at 2.  The
Determination also noted that the price charged by Kinko's was
substantially higher than the GPO contract vendor negotiated rates, and
that there was a GPO vendor in Boise that could have facilitated the
project by the due dates at a lower cost of $5,791.27.  Id.
    
DISCUSSION
    
With certain exceptions not pertinent here, all printing and binding for
the government *shall be done* at the GPO, absent a waiver from the Joint
Committee on Printing (JCP).  44 U.S.C. S: 501.  See B-300192, Nov. 13,
2000.  The term *printing* includes the process of duplicating using a
photocopy machine.  See Legislative Branch Appropriations Act, 1993, S:
207, Pub. L. No. 102-392, 106 Stat. 1703, 1719 (1992), as amended by Pub.
L. No. 103-283, 108 Stat. 1423, 1440 (1994) (reproduced at 44 U.S.C. S:
501 note); B-251481.4, Sept. 30, 1994.  The Public Printer may authorize
an executive department, independent office, or establishment of the
government to purchase such printing directly if he determines that the
GPO is not able or suitably equipped to execute the printing or if it
would be more economical or in the best interest of the government to have
the printing performed elsewhere.  44 U.S.C. S: 504.  Here, according to
Interior officials, GPO had a mandatory contract in place with a vendor in
Boise, Idaho who in fact could have performed in a timely manner at
considerably lower cost.  Ratification Determination at 2.  The
Ratification Determination also stated that GPO will not retroactively
waive the requirement to use a GPO source.[2]
    
In this case the employees who contracted for the Kinko's duplicating
services did not follow the procedures outlined in the BLM Instruction
Memorandum No. ID-2000-054 or seek a prior waiver from the GPO.  According
to the Pocatello Field Office Manager, the staff involved were apparently
unaware that it was mandatory to contact the Idaho State Office for large
copying jobs and believed that the logistics of handling the large volume
of documents justified the use of the local Kinko's.  Memorandum from Jeff
Steele, Pocatello Field Office Manager, to Idaho State Office, Attn:
Procurement Analyst, *Ratification of Expenditures for Copying Costs,*
Dec. 12, 2001.  However, as the Ratification Determination indicated, the
available GPO contractor could have delivered the records on time and less
expensively than the Kinko's.  Consequently, since there was no authority
to contract with Kinko's for the photocopying services, the contract
imposed no legal obligation on the government.  The United States is
neither bound nor estopped by the acts of its employees in entering into,
approving, or purporting to authorize the contract even though the
government may have received the benefit of the photocopying.  See
B-251481.4, Sept. 30, 1994; B-178496, Oct. 9, 1973. 
    
Accordingly, we have no basis to authorize payment of the photocopying
services procured by the field office staff from Kinko's.  We understand,
however, that the
Joint Committee on Printing will consider granting a retroactive waiver in
some circumstances, and BLM may consider requesting such a waiver in this
case.  See
72 Comp. Gen. 291 (1993); B-251481, Feb. 23, 1993; B-163762, Sept. 2,
1975.
    
    
    
    
Anthony Gamboa
General Counsel
    
    

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   [1] BLM has indicated that if we determine that payment in this case is
not authorized, it will seek recovery of the amount inappropriately
charged.  Letter to Thomas H. Armstrong, Assistant General Counsel, GAO,
from Julie Lewis, Procurement Analyst, BLM, Sept. 16, 2002.
[2] The official in GPO's Office of General Counsel responsible for
reviewing agency requests for waivers advised us that GPO as a matter of
practice refuses to grant waivers retroactively.