Dear Mr. Chairman, B-300192

CourtComptroller General of the United States
PartiesDear Mr. Chairman
Docket NumberB-300192
Decision Date13 November 2002

Dear Mr. Chairman

No. B-300192

Comptroller General of the United States

November 13, 2002


The Honorable Robert C. Byrd Chairman, Committee on Appropriations United States Senate

Anthony H. Gamboa General Counsel

This responds to your letter of October 18, 2002, requesting our opinion on the effect of section 117 of Pub L. No. 107-229, 116 Stat. 1465 (September 30, 2002) (the fiscal year 2003 Continuing Resolution), as amended by section 4 of Pub. L. No. 107-240, 116 Stat. 1492 (October 11, 2002). Public Law 107-240 extended the fiscal year 2003 Continuing Resolution. For the reasons explained below, we conclude that, under section 117, agencies are prohibited from using any funds to implement the Office of Management and Budget (OMB) Memorandum M-02-07 (hereafter, Memorandum), [1] including private sector printing, and no funds are available to pay for the printing of the President's Budget other than through the Government Printing Office (GPO). Failure to abide by section 117 would constitute a violation of the Antideficiency Act.

BACKGROUND

For more than a decade there has been a continuing dispute between the Congress and the executive branch concerning the application of the laws governing the acquisition of printing by the departments and agencies of the executive branch. [2] To date, the dispute has focused on essentially two statutes--44 U.S.C. 501 and section 207 of the Legislative Branch Appropriations Act, 1993, 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. 501 note) (hereafter, section 207). Reduced to its essence, section 501 of title 44 of the United States Code requires that all printing for the executive departments and independent offices and establishments of the government be done through the GPO. In 1992, in section 207, Congress reinforced

the policy embodied in 44 U.S.C. 501 by enacting a specific restriction on the use of funds appropriated for any fiscal year for the procurement of any printing of government publications other than by or through the GPO.

On May 3, 2002, the Director of OMB issued Memorandum M-02-07 to heads of executive departments and agencies encouraging them to acquire printing from sources other than GPO. The Memorandum relies specifically on a 1996 Department of Justice, Office of Legal Counsel (OLC) opinion, 20 Op. Off. Legal Counsel 214 (1996), for the proposition that Congress May not constitutionally require federal agencies to go through GPO to obtain printing services. Id. In the words of the OLC opinion, 44 U.S.C. 501 and section 207 violate constitutional principles of separation of powers, because, in OLC's opinion, the GPO is subject to congressional control and performs executive functions. Accordingly, OLC concluded that

44 U.S.C. 501 and section 207 are unconstitutional and, therefore, inoperative, id. at 226, and executive branch departments and agencies are not obligated to procure printing by or through the GPO. Id. at 221.

The OMB Memorandum M-02-07 announces that executive departments and agencies should not be required to procure printing through GPO and advises agencies to select printing and duplicating service based on best quality, cost, and time of delivery. OMB Memorandum M-02-07 at 3. The Memorandum does not object to executive agencies' use of GPO printing services: If GPO can provide a better combination of quality, cost, and time of delivery, ... then Executive Branch departments and agencies should continue to use GPO printing services. Id. The Memorandum specifies, however, that [w]henever the private sector can provide the better combination of quality, cost, and time of delivery, the department or agency should contract with the private sector. Id. In addition, the Memorandum's guidelines allow for in-house printing and require annual reporting of agency printing and duplicating costs. Id.

On October 11, 2002, Congress enacted Pub. L. No. 107-240, 116 Stat. 1492 (October 11, 2002), section 4 of which amended section 117 of Pub. L. No. 107-229, 116 Stat. 1465 (September 30, 2002). [3] Section 117, as amended, is straightforward. In subsection (a), Congress finds that 44 U.S.C. 501 and section 207(a) require all government printing to be done by and through GPO (except as those provisions provide otherwise). Subsection (b) consists of two paragraphs that restrict the use of any funds appropriated through the continuing resolution for fiscal year 2003, Pub. L. No. 107-229, as amended, or any other act. Paragraph (1) prohibits the use of appropriated funds to implement or comply with OMB Memorandum M-02-07. Paragraph (2) is narrowly drawn to prohibit the use of any appropriated funds to pay for the printing (other than by the [GPO]) of the budget of the United States Government submitted by the President of the United States under [31 U.S.C. 1105]. [4]

By letter dated October 18, 2002, you asked for our opinion on the effect of section 4 of Pub. L. 107-240, as it amended section 117 of Pub. L. 107-229, focusing specifically on sections 117(b)(1) and (b)(2). Pursuant to our standard practice, we asked OMB for its views on the effect of section 117. Letter from Susan A. Poling, Associate General Counsel, General Accounting Office, to Philip J. Perry, General Counsel, OMB, October 23, 2002. In its response of October 29, 2002, OMB reiterated its reliance on the 1996 OLC opinion noted above and referred also to an October 22, 2002, OLC memorandum. [5] Letter from Philip J. Perry, General Counsel, OMB, to Anthony H. Gamboa, General Counsel, General Accounting Office, and Susan A. Poling, Associate General Counsel, General Accounting Office, October 29, 2002. [6] Although the October 2002 OLC memorandum concludes that section 117 violates separation of powers, it does so by relying on the 1996 OLC opinion's analysis of 44 U.S.C. 501 and section 207; it does not independently analyze the language of section 117.

DISCUSSION

We start with the recognition that it is neither our role nor our province to opine on or adjudicate the constitutionality of legislation passed by Congress and signed by the President. B-215863, July 26, 1984; B-248111.2, Apr. 15, 1993. Such laws come to us with a heavy presumption in favor of their constitutionality. [7] Like the courts, we construe statutes narrowly to avoid constitutional issues. INS v. St. Cyr, 533 U.S. 289, 299 n. 12 (2001). Given our authority to settle and audit the accounts of the government, 31 U.S.C. 3526, 3523, 712, we will apply the laws as we find them absent a controlling judicial opinion that such laws are unconstitutional. B-215863, July 26, 1984; B-248111.2, Apr. 15, 1993.

Turning to the language of section 117, as amended, we find it clear and unambiguous. As noted earlier, section 117(b)(1) prohibits the use of any funds appropriated under this joint resolution [the fiscal year 2003 continuing resolution] or any other Act to implement or comply with [OMB] Memorandum M-02-07... or any other memorandum or similar opinion reaching the same, or substantially the same, result as such memorandum. OMB has not raised any construction or interpretive issues concerning the plain import of the language of section 117(b)(1). In our opinion, section 117(b)(1) provides that OMB May not use any appropriated funds to implement its memorandum, and that no executive department or agency May use appropriated funds to acquire printing services in accordance with the guidance provided in the memorandum. Consequently, the effect of section 117(b)(1) is that executive branch departments and agencies May not contract with private sector sources for printing except as otherwise specifically provided by law.

Section 117(b)(2)...

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