B-145648, JUNE 14, 1961, 40 COMP. GEN. 694

B-145648: Jun 14, 1961

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APPROPRIATIONS - NO-YEAR - EFFECT OF SUBSEQUENT LIMITATIONS UNOBLIGATED BALANCES FROM A 1959 NO-YEAR APPROPRIATION AVAILABLE FOR THE ACQUISITION OF AIRCRAFT WHICH HAVE BEEN MERGED WITH OTHER NO-YEAR FUNDS. ARE NOT RESTRICTED OR LIMITED BY THE SUBSEQUENT DENIAL OF FUNDS IN THE ABSENCE OF AN EXPRESS OR CLEARLY IMPLIED RESTRICTION OR LIMITATION ON THE PRIOR FUNDS AND. PROVIDED THAT THE ORIGINAL CEILING ON THE NUMBER OF AIRCRAFT SPECIFIED IN THE 1959 APPROPRIATION IS NOT EXCEEDED. ARE TO BE TREATED AS UNOBLIGATED BALANCES AVAILABLE FOR EXPENDITURE IN THE SAME MANNER AND FOR THE SAME PURPOSES AS OTHER FUNDS FROM THE NO-YEAR APPROPRIATION. 1961: REFERENCE IS MADE TO YOUR LETTER OF APRIL 14. THERE WAS ENACTED THE FEDERAL AVIATION ACT OF 1958.

B-145648, JUNE 14, 1961, 40 COMP. GEN. 694

APPROPRIATIONS - NO-YEAR - EFFECT OF SUBSEQUENT LIMITATIONS UNOBLIGATED BALANCES FROM A 1959 NO-YEAR APPROPRIATION AVAILABLE FOR THE ACQUISITION OF AIRCRAFT WHICH HAVE BEEN MERGED WITH OTHER NO-YEAR FUNDS, INCLUDING THOSE IN A SUBSEQUENT APPROPRIATION ACT IN WHICH CONGRESS DENIED THE AGENCY'S REQUEST TO EXPEND FUNDS MADE AVAILABLE FOR AIRCRAFT ACQUISITION, ARE NOT RESTRICTED OR LIMITED BY THE SUBSEQUENT DENIAL OF FUNDS IN THE ABSENCE OF AN EXPRESS OR CLEARLY IMPLIED RESTRICTION OR LIMITATION ON THE PRIOR FUNDS AND, THEREFORE, THE UNEXPENDED BALANCES MAY BE USED BY THE AGENCY IN 1961 FOR THE PURCHASE OF AN AIRPLANE, PROVIDED THAT THE ORIGINAL CEILING ON THE NUMBER OF AIRCRAFT SPECIFIED IN THE 1959 APPROPRIATION IS NOT EXCEEDED. FUNDS RECOVERED BY AN AGENCY IN A SUBSEQUENT FISCAL YEAR AS A RESULT OF COST REDUCTIONS AND OTHER ADJUSTMENTS IN CONTRACTS, WHICH HAD BEEN ORIGINALLY CHARGED TO A NO-YEAR APPROPRIATION, ARE TO BE TREATED AS UNOBLIGATED BALANCES AVAILABLE FOR EXPENDITURE IN THE SAME MANNER AND FOR THE SAME PURPOSES AS OTHER FUNDS FROM THE NO-YEAR APPROPRIATION.

TO THE ADMINISTRATOR, FEDERAL AVIATION AGENCY, JUNE 14, 1961:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 14, 1961, REQUESTING A DECISION AS TO THE PROPRIETY OF THE PURCHASE BY YOUR AGENCY, UNDER THE FACTS DESCRIBED HEREINAFTER, OF A DC-7 TYPE AIRCRAFT DURING FISCAL YEAR 1961 WITH FUNDS APPROPRIATED TO THE AIRWAYS MODERNIZATION BOARD IN TITLE III OF THE DEPARTMENT OF COMMERCE AND RELATED AGENCIES APPROPRIATION ACT, 1959, APPROVED JUNE 25, 1958, 72 STAT. 236, WHICH READS AS FOLLOWS:

FOR NECESSARY EXPENSES OF THE AIRWAYS MODERNIZATION BOARD, INCLUDING PURCHASE (NOT TO EXCEED SIX) AND HIRE OF PASSENGER MOTOR VEHICLES; ACQUISITION BY PURCHASE OR TRANSFER OR AIRCRAFT (NOT TO EXCEED FOURTEEN) AND HIRE, MAINTENANCE, AND OPERATION OF AIRCRAFT; AND EXPENSES OF ATTENDANCE AT MEETINGS CONCERNED WITH THE WORK OF THE BOARD, $31,500,000 TO REMAIN AVAILABLE UNTIL EXPENDED.

ON AUGUST 23, 1958, THERE WAS ENACTED THE FEDERAL AVIATION ACT OF 1958, 72 STAT. 731. PURSUANT TO THE PROVISIONS OF SECTION 304, 72 STAT. 749, AND SECTION 1502 (A) AND (B), 72 STAT. 810, OF THIS ACT AND THE TERMS OF 31 U.S.C. 581C (B), THE PRESIDENT BY EXECUTIVE ORDER NO. 10786, DATED NOVEMBER 1, 1958, TRANSFERRED THE FUNCTIONS, PERSONNEL, PROPERTY, AND UNEXPENDED FUNDS OF THE AIRWAYS MODERNIZATION BOARD TO THE FEDERAL AVIATION AGENCY. AS A RESULT OF THIS ACTION THE TREASURY DEPARTMENT, EFFECTIVE NOVEMBER 1, 1958, TRANSFERRED THE UNEXPENDED BALANCE IN THE ACCOUNT "87X0100 EXPENSES, AIRWAYS MODERNIZATION BOARD" TO THE ACCOUNT "69X0100 EXPENSES, FEDERAL AVIATION AGENCY; " AND EFFECTIVE DECEMBER 31, 1958, THAT DEPARTMENT, UNDER AUTHORITY OF EXECUTIVE ORDER NO. 10797, DATED DECEMBER 24, 1958, TRANSFERRED THE LARGER PART OF THE UNEXPENDED BALANCE IN THE LATTER ACCOUNT TO THE ACCOUNT "69X1300 RESEARCH AND DEVELOPMENT, FEDERAL AVIATION AGENCY.'

YOU STATE THAT AT THE END OF THE FISCAL YEAR 1959, SIX AIRCRAFT HAD BEEN EITHER PURCHASED OR TRANSFERRED UNDER AUTHORITY CONTAINED IN THE APPROPRIATION MADE TO THE AIRWAYS MODERNIZATION BOARD AND THAT ONE ADDITIONAL AIRCRAFT WAS ACQUIRED BY TRANSFER IN FISCAL YEAR 1960. FURTHER, THAT WHEN YOUR AGENCY SUBMITTED TO THE CONGRESS ITS APPROPRIATION REQUEST AND JUSTIFICATIONS FOR THE FISCAL YEAR 1960, IT WAS NOT ANTICIPATED THAT THERE WOULD BE ANY UNOBLIGATED BALANCES CARRIED FORWARDED FROM FISCAL YEAR 1959 TO FISCAL YEAR 1960 UNDER THE APPROPRIATION FOR "1RESEARCH AND DEVELOPMENT.'

YOU FURTHER STATE THAT THE BUDGET FOR THE FISCAL YEAR 1960 (PAGE 154), WITH REFERENCE TO THIS APPROPRIATION, INCLUDED AUTHORITY FOR THE "PURCHASE OF NOT TO EXCEED THREE AIRCRAFT.' IN CONSIDERING THE INDEPENDENT OFFICES APPROPRIATION BILL FOR 1960 (1H.R. 7040, 86TH CONG.), THE HOUSE COMMITTEE ON APPROPRIATIONS REJECTED THIS ITEM UNDER THE APPROPRIATION. IT WAS RESTORED IN THE BILL BY THE SENATE UPON RECOMMENDATION OF THE SENATE COMMITTEE ON APPROPRIATIONS (1SENATE REPORT NO. 423, PAGE 5), AND FINALLY DELETED THEREFROM BY THE COMMITTEE OF CONFERENCE WHICH ACTION WAS ADOPTED BY THE HOUSE AND SENATE. SEE THE CONFERENCE REPORT, HOUSE REPORT NO. 709, PAGES 1 AND 8, REGARDING AMENDMENT NO. 15. THE LEGISLATIVE HISTORY OF THESE ACTIONS, YOU SAY, THROWS NO LIGHT ON THE MATTER OTHER THAN THE TESTIMONY OF YOUR AGENCY AT PAGE 402 OF THE SENATE HEARINGS ON THE BILL TO THE EFFECT THAT THE THREE AIRCRAFT, VIZ., TWO CESSNA 182'S AND ONE CESSNA 370 WERE NEEDED FOR TESTING PURPOSES, AND THAT IT WAS MORE ECONOMICAL TO PURCHASE RATHER THAN TO LEASE THEM.

YOU POINT OUT THAT SUBSEQUENT TO THE SUBMISSION BY YOUR AGENCY OF ITS FORMAL BUDGET REQUEST AND JUSTIFICATION TO THE CONGRESS FOR FISCAL YEAR 1959 (APPARENTLY INTENDED TO MEAN 1960) IT DEVELOPED THAT APPROXIMATELY $2,000,000 WAS UNOBLIGATED AS OF JUNE 30, 1959, OUT OF THE FUNDS PROVIDED BY THE DEPARTMENT OF COMMERCE AND RELATED AGENCIES APPROPRIATION ACT, 1959, UNDER THE APPROPRIATION ,1EXPENSES, AIRWAYS MODERNIZATION BOARD" QUOTED ABOVE. THESE FUNDS WERE MERGED WITH THE NO YEAR APPROPRIATION OF $48,700,000 MADE TO YOUR AGENCY FOR "1RESEARCH AND DEVELOPMENT" IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1960, PUBLIC LAW 86-255, APPROVED SEPTEMBER 14, 1959, 73 STAT. 503, AND THE TOTAL PROGRAMMED FOR PROJECTS NOT INVOLVING THE PURCHASE OF AIRCRAFT. ALSO, YOU MENTIONED THAT THE 1961 BUDGET ESTIMATES DID NOT REQUEST AUTHORITY FOR PROCUREMENT OF AIRCRAFT FOR THE RESEARCH AND DEVELOPMENT PROGRAM, AND THAT THE NO-YEAR APPROPRIATION OF $64,000,000 CONTAINED IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1961, PUBLIC LAW 86-626, APPROVED JULY 12, 1960, FOR ,1RESEARCH AND DEVELOPMENT" (74 STAT. 428), INCLUDED NO FUNDS FOR SUCH PROCUREMENT.

YOU EXPLAIN THAT IN THE DEVELOPMENT OF THE 1961 PROGRAM FOR TESTING AND EVALUATING THE BRITISH BLEU LANDING SYSTEM, IT BECAME EVIDENT THAT A NEED EXISTED FOR AN EQUIPPED TRANSPORT TYPE AIRCRAFT. FURTHER, THAT AS A RESULT OF SOLICITING ALTERNATE BIDS FOR THE PURCHASE AND LEASE OF A DC-7 TYPE AIRCRAFT, IT WAS ADMINISTRATIVELY DETERMINED MORE ECONOMICAL FROM THE GOVERNMENT'S STANDPOINT TO PURCHASE RATHER THAN TO LEASE THE AIRCRAFT. THE AIRCRAFT WAS PURCHASED FOR $225,000, WHICH FUNDS WERE RECOVERED DURING FISCAL YEAR 1961 AS A RESULT OF COST REDUCTIONS AND OTHER ADJUSTMENTS IN CONTRACTS ORIGINALLY OBLIGATED DURING FISCAL YEAR 1959, PURSUANT TO THE AIRCRAFT ACQUISITION AUTHORITY CONTAINED IN THE FISCAL 1959 APPROPRIATION ACT.

THE VIEW IS EXPRESSED THAT PURCHASE OF THE AIRCRAFT DURING FISCAL YEAR 1961 UTILIZING FUNDS PROVIDED IN THE APPROPRIATION CONTAINED IN THE 1959 APPROPRIATION ACT WAS WITHIN THE AUTHORITY OF THE APPROPRIATION. HOWEVER, THE DOUBT IN THE MATTER APPARENTLY ARISES BY REASON OF THE ACTION OF THE CONGRESS SUBSEQUENT TO THE 1959 APPROPRIATION DENYING THE REQUEST OF YOUR AGENCY TO EXPEND FUNDS MADE AVAILABLE TO THE RELATED APPROPRIATION IN THE 1960 APPROPRIATION ACT FOR SUCH PURPOSES.

THE APPROPRIATION QUOTED ABOVE FOR THE AIRWAYS MODERNIZATION BOARD THE UNEXPENDED BALANCE OF WHICH WAS TRANSFERRED TO THE FEDERAL AVIATION AGENCY UPON ITS CREATION AND ESTABLISHED UNDER THE APPROPRIATION ACCOUNT "1RESEARCH AND DEVELOPMENT" WAS SPECIFICALLY MADE AVAILABLE UNTIL EXPENDED. SIMILARLY, THE APPROPRIATIONS PROVIDED TO YOUR AGENCY FOR "1RESEARCH AND DEVELOPMENT" IN THE CITED 1960 AND 1961 INDEPENDENT OFFICES APPROPRIATION ACTS WERE MADE AS NO-YEAR APPROPRIATIONS.

WHEN THE CONGRESS EXPRESSLY PROVIDES IN AN APPROPRIATION, AS IN THE CASE OF THE SUBJECT APPROPRIATION, THAT IT SHALL "REMAIN AVAILABLE UNTIL EXPENDED" ALL STATUTORY TIME LIMITS AS TO WHEN THE FUNDS MAY BE OBLIGATED AND EXPENDED ARE REMOVED. 31 U.S.C. 718. AND LIMITATIONS ON SPECIFIC OBJECTS OF EXPENDITURE OR THE AMOUNTS WHICH MAY BE EXPENDED FOR SPECIFIED ITEMS CONTAINED IN SUCH APPROPRIATIONS ARE TO BE CONSIDERED AS AVAILABLE WITHOUT REGARD TO FISCAL YEAR UNLESS OTHERWISE SPECIFIED. THEREFORE, SINCE NO-YEAR APPROPRIATIONS, UNLESS OTHERWISE ORDERED BY THE CONGRESS, REMAIN AVAILABLE FOR THEIR ORIGINAL PURPOSES UNTIL EXPENDED, IT FOLLOWS THAT THE AVAILABILITY OF SUCH APPROPRIATIONS IS NOT CHANGED BY A LATER ACT, EXCEPT IN SUCH RESPECTS AND TO SUCH EXTENT AS IS EXPRESSLY STATED OR CLEARLY IMPLIED BY SUCH ACT.

WHILE THE CONGRESS EXPLICITLY DENIED THE USE OF THE APPROPRIATION FOR "1RESEARCH AND EVELOPMENT" CONTAINED IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1960, FOR THE ACQUISITION OF THREE AIRCRAFT, WE FIND NOTHING IN THE PRINTED LEGISLATIVE HISTORY OF THAT ACTION, AS INDICATED IN YOUR LETTER, WHICH WOULD REQUIRE IT TO BE CONSIDERED AS LIMITING OR RESTRICTING THE USE OF THE UNEXPENDED BALANCE OF THE PRIOR NO-YEAR APPROPRIATION TO THE AIRWAYS MODERNIZATION BOARD FOR THE ACQUISITION OF AIRCRAFT. SEE 31 COMP. GEN. 275; ID. 543, CITED IN YOUR LETTER. AS THE LATTER APPROPRIATION AUTHORIZED THE ACQUISITION OF NOT TO EXCEED FOURTEEN AIRCRAFT, AND AS AMOUNTS RECOVERED AS A RESULT OF COST REDUCTIONS AND OTHER ADJUSTMENTS IN OBLIGATIONS INCURRED THEREUNDER, REGARDLESS OF THE TIME OF RECOVERY, ARE TO BE TREATED AS UNOBLIGATED BALANCES AVAILABLE FOR EXPENDITURE IN THE SAME MANNER AND FOR THE SAME PURPOSES AS OTHER FUNDS IN SAID APPROPRIATION, IT IS CLEAR THAT SUCH FUNDS PROPERLY MAY BE USED TO ACQUIRE AIRCRAFT SO LONG AS THE CEILING ESTABLISHED THEREFOR IS NOT EXCEEDED. SEE 23 COMP. GEN. 365, 367.

ACCORDINGLY, IN SPECIFIC ANSWER TO YOUR QUESTION YOU ARE ADVISED THAT WE SEE NO LEGAL OBJECTION TO THE USE BY YOUR AGENCY OF THE NO-YEAR APPROPRIATION ORIGINALLY MADE TO THE AIRWAYS MODERNIZATION BOARD FOR THE ACQUISITION OF THE DC-7 TYPE AIRCRAFT UNDER THE FACTS OUTLINED ABOVE.

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