B-131402, AUGUST 9, 1957, 37 COMP. GEN. 98

B-131402, AUGUST 9, 1957, 37 COMP. GEN. 98

FEDERAL NATIONAL MORTGAGE ASSOCIATION - APPLICABILITY OF GENERAL SERVICES ADMINISTRATION BUILDING, ETC., REGULATIONS UNDER REORGANIZATION PLAN NO. 18 OF 1950, ALL FUNCTIONS OF WHOLLY OWNED AND MIXED-OWNERSHIP GOVERNMENT CORPORATIONS RELATING TO THE ACQUISITION OF SPACE IN BUILDINGS BY LEASE AND THE ASSIGNMENT OF SPACE IN BUILDINGS FOR USE BY THESE CORPORATIONS WERE TRANSFERRED TO THE GENERAL SERVICES ADMINISTRATION. ALTHOUGH THE FEDERAL NATIONAL MORTGAGE ASSOCIATION CHARTER ACT, BY WHICH THE CORPORATION STATUS WAS CHANGED FROM A WHOLLY-OWNED TO A MIXED OWNERSHIP CORPORATION, PROVIDES BROAD CONTRACT AUTHORITY, IT SPECIFICALLY LIMITS THE CORPORATION'S POWERS BY THE APPLICATION OF THE GOVERNMENT CORPORATION CONTROL ACT AND GOVERNMENT CORPORATION LAWS GENERALLY SO THAT THE LAWS AND REGULATIONS RELATING TO BUILDING FUNCTIONS PERFORMED BY GENERAL SERVICES ADMINISTRATION FOR GOVERNMENT AGENCIES, INCLUDING CORPORATIONS, MAY BE REGARDED AS HAVING BEEN INCORPORATED BY REFERENCE IN THE CHARTER ACT AND MADE APPLICABLE TO THE FEDERAL NATIONAL MORTGAGE ASSOCIATION.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, AUGUST 9, 1957:

REFERENCE IS MADE TO YOUR LETTER OF JULY 2, 1957, WHICH REPORTED ON THE LEASING ACTIVITY OF THE FEDERAL NATIONAL MORTGAGE ASSOCIATION ( FNMA) IN LOS ANGELES, CALIFORNIA, AND REQUESTED A DECISION CLARIFYING THE STATUS OF FNMA AS A GOVERNMENT CORPORATION.

IN PARTICULAR YOU REQUEST A DECISION ON THE FOLLOWING QUESTIONS:

1. DOES THE SUBSEQUENT GRANT OF INDEPENDENT LEASING AUTHORITY TO FNMA AS CONTAINED IN ITS CHARTER ACT EXEMPT IT FROM THE PROVISIONS OF REORGANIZATION PLAN NO. 18?

2. IF THE ANSWER TO THE FIRST QUESTION IS IN THE NEGATIVE, DID REORGANIZATION PLAN NO. 18 TRANSFER TO GSA ALL FUNCTIONS OF MIXED OWNERSHIP GOVERNMENT CORPORATIONS WITH RESPECT TO ACQUIRING SPACE IN BUILDINGS BY LEASE AND WITH RESPECT TO ASSIGNING AND REASSIGNING SPACE IN BUILDINGS FOR USE BY AGENCIES?

3. IF THE ANSWER TO THE SECOND QUESTION IS IN THE NEGATIVE, IS THE DESIGNATION OF FNMA AS A WHOLLY OWNED GOVERNMENT CORPORATION IN 31 U.S.C. 846 CONCLUSIVE IN ESTABLISHING ITS CHARACTER FOR THE PURPOSE OF DETERMINING ITS SUSCEPTIBILITY TO GSA REGULATIONS ISSUED OR TO BE ISSUED IN IMPLEMENTATION OF REORGANIZATION PLAN NO. 18 OF 1950 RELATING TO LEASING FUNCTIONS OF GOVERNMENT CORPORATIONS?

4. IF THE ANSWER TO THE THIRD QUESTION IS IN THE NEGATIVE, MAY FNMA IN THE APPLICATION OF GSA REGULATIONS REFERRED TO IN SAID QUESTION BE CONSIDERED A MIXED-OWNERSHIP CORPORATION?

THE REORGANIZATION ACT OF 1949, 63 STAT. 203, 5 U.S.C. 133Z ET SEQ., AUTHORIZED THE PRESIDENT TO EXAMINE THE ORGANIZATION OF ALL GOVERNMENT AGENCIES AND TO EFFECTUATE NECESSARY CHANGES. SECTION 7 OF THE ACT, 63 STAT. 205, 5 U.S.C. 133Z-5, INCLUDES " GOVERNMENT CORPORATIONS" WITHIN THE MEANING OF THE TERM "AGENCY.'

PURSUANT TO THE AUTHORITY CONTAINED IN THE ACT, PRESIDENT TRUMAN TRANSFERRED TO THE ADMINISTRATOR OF GENERAL SERVICES ALL THE RESPECTIVE AGENCIES' FUNCTIONS WITH RESPECT TO ACQUIRING SPACE IN BUILDINGS BY LEASE. SECTION 1 OF REORGANIZATION PLAN NO. 18 OF 1950, 64 STAT. 1270, 5 U.S.C. 133Z-15 NOTE AND 40 U.S.C. 304C NOTE. THE ADMINISTRATOR ALSO WAS AUTHORIZED TO DELEGATE HIS AUTHORITY. SECTION 3, IBID.

PURSUANT TO REORGANIZATION PLAN NO. 18 OF 1950, SUPRA, AND OTHER RELATED ACTS (SEE GSA REG. 2-II-101.02), THE ADMINISTRATOR ISSUED A REGULATION, 44 C.F.R. 102.1, WHICH PROVIDED THAT THE GENERAL SERVICES ADMINISTRATION WOULD PERFORM FOR EXECUTIVE AGENCIES, INCLUDING WHOLLY OWNED GOVERNMENT CORPORATIONS, ALL FUNCTIONS WITH RESPECT TO ACQUIRING GENERAL-PURPOSE SPACE IN BUILDINGS BY LEASE, INCLUDING THE EXECUTION OF ALL LEASES AND RELATED CONTRACTS. ON DECEMBER 15, 1953, BY THE ISSUANCE OF GSA REG. 2- III-102.01A, THE ORIGINAL REGULATION WAS AMENDED TO PROVIDE THAT THE GENERAL SERVICES ADMINISTRATION WOULD PERFORM FOR THE AGENCIES ALL FUNCTIONS, INCLUDING THE EXECUTION OF THE NECESSARY DOCUMENTS, WITH RESPECT TO ACQUISITION BY LEASE OF SPACE IN BUILDINGS. INASMUCH AS THIS REGULATION WAS ISSUED UNDER THE AUTHORITY OF THE REORGANIZATION ACT OF 1949, SECTION 7 OF WHICH INCLUDES " GOVERNMENT CORPORATIONS" WITHIN THE MEANING OF THE TERM "AGENCY," WE MUST, IN THE ABSENCE OF ANY INDICATION OF A CONTRARY INTENT, CONSTRUE THE TERM "AGENCIES," AS USED IN GSA REG. 2-III -102.01A, SUPRA, AS INCLUDING CORPORATIONS.

IN 1954, FNMA, A WHOLLY OWNED GOVERNMENT CORPORATION, WAS RECHARTERED AS A MIXED-OWNERSHIP CORPORATION. SECTION 309 (A) OF THE FNMA CHARTER ACT, 68 STAT. 620, 12 U.S.C. 1723A (A), PROVIDES, INSOFAR AS PERTINENT, THAT THE CORPORATION SHALL HAVE THE POWER---

* * * TO ENTER INTO AND PERFORM CONTRACTS, LEASES, * * * ON SUCH TERMS AS IT MAY DEEM APPROPRIATE * * * WITH ANY PERSON, FIRM, ASSOCIATION OR CORPORATION; * * *

THE BROAD AUTHORITY OF THIS SECTION IS LIMITED BY SECTION 309 (B) OF THE CHARTER ACT, 68 STAT. 620-621, 12 U.S.C. 1723A (B) WHICH PROVIDES:

EXCEPT AS MAY BE OTHERWISE PROVIDED IN THIS TITLE, IN THE GOVERNMENT CORPORATION CONTROL ACT, OR IN OTHER LAWS SPECIFICALLY APPLICABLE TO GOVERNMENT CORPORATIONS, THE ASSOCIATION SHALL DETERMINE THE NECESSITY FOR AND THE CHARACTER AND AMOUNT OF ITS OBLIGATIONS AND EXPENDITURES AND THE MANNER IN WHICH THEY SHALL BE INCURRED, ALLOWED, PAID, AND ACCOUNTED FOR.

SINCE THE REORGANIZATION ACT OF 1949, REORGANIZATION PLAN NO. 18, OF 1950, AND THE PERTINENT GSA REGULATIONS ARE APPLICABLE TO GOVERNMENT CORPORATIONS, IT IS OUR OPINION THAT THEY WERE INCORPORATED BY REFERENCE INTO FNMA'S 1954 CHARTER.

SECTION 202 OF THE CHARTER ACT, 68 STAT. 622, 31 U.S.C. SUPP. II, 846 NOTE, PROVIDES:

THE FEDERAL NATIONAL MORTGAGE ASSOCIATION, ESTABLISHED PURSUANT TO THE PROVISIONS OF TITLE III OF THE NATIONAL HOUSING ACT AS IN EFFECT PRIOR TO JULY 1, 1948, AND NAMED IN SECTION 101 OF THE GOVERNMENT CORPORATION CONTROL ACT, AS AMENDED, SHALL BE THE BODY CORPORATE REFERRED TO IN SECTION 302 OF TITLE III OF THE NATIONAL HOUSING ACT OF 1954.

SECTION 101 OF THE GOVERNMENT CORPORATION CONTROL ACT, AS AMENDED, 31 U.S.C. SUPP. II 846, INCLUDES FNMA WITHIN THE MEANING OF THE TERM "WHOLLY OWNED GOVERNMENT CORPORATION.' THEREFORE, ALTHOUGH, UNDER ITS 1954 CHARTER ACT FNMA IS ORGANICALLY A MIXED-OWNERSHIP CORPORATION, SECTION 202 OF THE CHARTER ACT, SUPRA, EVIDENCES THE INTENT OF THE CONGRESS THAT GENERICALLY FNMA IS TO CONTINUE TO BE CLASSED AS A WHOLLY OWNED GOVERNMENT CORPORATION. FOR THE PURPOSE OF INTERPRETING STATUTES AND REGULATIONS CONTAINING THE PHRASE "WHOLLY OWNED GOVERNMENT CORPORATION," SECTION 101 OF THE GOVERNMENT CORPORATION CONTROL ACT, SUPRA, CONTROLS, IN THE ABSENCE OF A CLEAR INDICATION OF A CONTRARY LEGISLATIVE INTENT. ALSO, WHETHER A CORPORATION IS WHOLLY OWNED BY THE GOVERNMENT OR IS MIXED-OWNERSHIP, IT IS STILL A GOVERNMENT CORPORATION. SEE 25 COMP. GEN. 7.

SECTION 309 (B) OF THE FNMA CHARTER ACT MADE REORGANIZATION PLAN NO. 18 APPLICABLE TO THE CORPORATION. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

INASMUCH AS THE TERM " GOVERNMENT CORPORATION" INCLUDES WHOLLY OWNED GOVERNMENT CORPORATIONS AND MIXED-OWNERSHIP CORPORATIONS REORGANIZATION PLAN NO. 18 CAN BE CONSIDERED TO HAVE TRANSFERRED TO GSA ALL FUNCTIONS OF MIXED-OWNERSHIP CORPORATIONS WITH RESPECT TO ACQUIRING SPACE IN BUILDINGS BY LEASE AND WITH RESPECT TO ASSIGNING AND REASSIGNING SPACE IN BUILDINGS FOR USE BY AGENCIES. ACCORDINGLY, YOUR SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE AND NO ANSWERS ARE REQUIRED FOR QUESTIONS 3 AND 4.

ENCLOSED FOR YOUR INFORMATION IS A COPY OF OUR LETTER OF TODAY TO THE ATTORNEY FOR MILLIRON WHO PROTESTED FNMA'S DISREGARD OF MILLIRON'S LOW BID FOR 20,000 FEET OF SPACE IN LOS ANGELES, CALIFORNIA.

A COPY OF THIS DECISION IS BEING TRANSMITTED TO THE PRESIDENT OF FNMA.