B-142190 March 23, 1960

B-142190 March 23, 1960

Honorable Glenard P. Lipscomb House of Representatives

Dear Mr. Lipscomb:

By letter of February 29, 1960, acknowledged March 2, you requested our advice as to whether, under an pursuant to section 631 of the Department of Defense Appropriaton Act, 1960, 77 Stat. 366, 383, Military Air Transport Service expenditures for procurement of commerical air transportation service are necessarily limited to $85 million, or whether MATS expenditures for such purpose could extend that amount.

Section 631 provides that:

"Of the funds made available by this Act for the services of the Military Air Transport Service, $85,000,000 shall be available only for procurement of commerical air transportation service; and the Secretary of Defense shall utilize the services of civil air carrier which qualify as small businesses to the fullest extent found practicable."

It is a general rule of statutory construction that an appropriation for a specific object is available for that object to the exclusion of a more general apporpriation and that the exhaustion of a specific appropriation does not authorize charging the excess payment to a moe general appropriation. However, whether language making part of a larger appropriation "available only" for a particular purpose constitutes a maximum limitation on the amount which properly may be used for the particular purpose or whether it merely earmarks the part of the appropriation so as to assure the availability of the smaller sum for the particulary purpose would depend upon the intent of the Congress in using the language.

Section 634 of the Department of Defense Appropriation Act, 1959, 72 Stat. 711, 729, contains the sum provision with respect to fiscal year 1959 funds as does section 631 with respect to fiscal year 1960 funds, except that the amount involved is $80 million rather than $85 million. The legislative history surrounding the inclusion of sections 634 and 631 is voluminous, and scattered throughout may be found statements which would support almost any interpretations of those sections as might be desired. However, consideration of the legislative history as a whole and analysis of the basic purpose for including the language contained in sections 634 and 631 of the appropriations acts for 1959 and 1960 lead to the conclusion that the language utilized was intended to require that the amounts stated be considered as minimum amounts to be expended for the purpose specified.

Without reciting a detailed account of the statements made in hearing on the subject and in congressional debates of the matter, it may be stated that for several years prior to 1959, Congress felt that the Military Air Transport Service was not procuring a sufficient amount of services from United States civil air carriers. But the congress did not direct any action through legislation; instead, it made known its desires in this regard through the medium of committee reports:

"Last year in the conference committee on the Defense appropriations bill the Senate joined with the House in stating in a letter to the Secretary of Defense that the Government should, to the greatest extent practicable, adjust its use of air transportation so as to use existing unutilized capacity of United States air carriers. This statement was based upon our position that maximum utilization by the Department of Defense of United States civil air carriers is essential both in the promotion of our free enterprise economy and in the provision of the necessary ready reserve civil airlift for national defense; and that Government operations of its own air transport facilities should be limited to that essential to military security.

"The committee reaffirms its position of last year that the Department of Defense should utilize the services of commerical transportation, in preference to Government-owned and Government-operated transportation, to the fullest extent possible when upon using the same cost standards for both commerical and Government facilitites, it is found to be more economical, and further, that in evaluating relative costs of transportation, the Department should recognize the specific monetary value of time saved as an important factor in the award of competitive bids in transportation.

*******

"It is the wish of the Committee, therefore, that within the 1958 appropriations for operations and maintenance and for military personnel the Defense Department reprogram expendituresfor operating MATS and other Government-owned transport activities sufficiently to permit the funds so reprogramed to be applied toward procuring the services of United States civil air carriers to meet as nearly as possible 40 percent of the passenger requirements and 20 percent of the cargo requirements of the Military Air Transport Service." (S. Rept. 543, 85th Cong., 1st sess., Department of Defense Appropriation Bill, 1958, pp. 13, 14.)

"*** The committee of conference emphasizes the importance of the Senate committee report on Use of Commerical Carriers and sells on the Department of Defense to carry out the full intent. However, it is realized that the procurement of commerical transportation must be made in accordance with existing law." (H. Rept. 841, 85th Cong., 1st sess., Department of Defense Appropriation Bill, 1958, conference report, pp. 6, 7.)

It was because the Air Force did not reprogram its funds so as to procure in 1958 40 percent of MATS passenger requirements and 20 percent of its cargo requirements that section 634 was included in the appropriation act for 1959. Senate Report No. 1937, 85th Congress, 2d Session, Department of Defense Appropriation Bill, 1959, contains the following statement beginning on page 17:

"Although specifically reaffirming all the language contained inthe above- titled section of the report accompanying Department of Defense appropriations last year (S. Rept. No. 543, 85th Cong., 1st sess.), the comittee is convinced that language in the act itself is the only means of carrying out the committee's oft-stated desires with respect to use of commerical air carriers. The Department of Defense record of noncompliance with report language makes it imparative to take such action if the congressional will is to have any force whatsoever.

"Accordingly, the Committee has parovided in section 635(a) that $84 million of funds available to the Military Air Transport Service are available only for procurement of commerical service **** (Section 635(a) was enacted in amended form as section 634 of the appropriation act for fiscal year 1959.)

And at page 23 of Senate Report No. 476, 86th Congress, 1st Session, accompanying the Department of Defense Appropriation Bill, 1960, the Committee on Appropriations after learning that only $70 million of hte $80 million provided had been utilized for the procurement of commerical service, specifically reaffirmed all of the above-quoted language.

The foregoing clearly establishes that it was concern over what was considered to be insufficient use of commerical air lift service which prompted the appropriation limitation in question and that the limitation was intended as a minimum amount to be expended for the purpose stated therein.

Accordingly, applying the rules of statutory contruction stated above, it is our opinion that Military Air Transport Service expenditures in fiscal year 1960 for procurement of commerical air transportation service may exceed the $85 million reserved exclusively for such pupose out of the overall funds available for MATS services.

Sincerely yours,

JOSEPH CAMPBELL Comptroller General of the United States