A-96426, JULY 20, 1938, 18 COMP. GEN. 74

A-96426: Jul 20, 1938

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I HAVE YOUR LETTER OF JULY 12. PURSUANT TO THIS AUTHORITY NUMEROUS ALLOTMENTS HAVE BEEN MADE. WHICH WILL CAUSE THESE FEDERAL AGENCIES CONSIDERABLE EMBARRASSMENT AND DEFEAT THE PURPOSE OF THE CONGRESS THAT THE PROGRAM PROVIDED FOR BY THE ACT IN QUESTION BE PROSECUTED WITH ALL POSSIBLE DISPATCH. UNLESS A LIBERAL INTERPRETATION IS PLACED UPON SECTION 201 OF THE ACT. IT APPARENTLY WAS THE INTENTION OF THE ACT TO CONTINUE THE FUNCTIONS OF THE PUBLIC WORKS ADMINISTRATION BEGUN UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT. THIS PURPOSE IS EMPHASIZED BY THE FOLLOWING WORDS TAKEN FROM SECTION 201A: "* * * BY PROVIDING FOR USEFUL PUBLIC WORKS PROJECTS OF THE KIND AND CHARACTER WHICH THE FEDERAL EMERGENCY ADMINISTRATOR OF PUBLIC WORKS * * * HAS HERETOFORE FINANCED OR AIDED IN FINANCING.

A-96426, JULY 20, 1938, 18 COMP. GEN. 74

APPROPRIATIONS - WORK RELIEF AND PUBLIC WORKS APPROPRIATION ACT OF 1938 AVAILABILITY FOR ALLOTMENTS FOR ADMINISTRATIVE EXPENSES OF FEDERAL PUBLIC WORKS PROJECTS FUNDS APPROPRIATED IN THE PUBLIC WORKS ADMINISTRATION APPROPRIATION ACT OF 1938, APPROVED JUNE 21, 1938, 52 STAT. 809, MAY NOT BE ALLOTTED TO FEDERAL AGENCIES TO COVER ADMINISTRATIVE EXPENSES IN CONNECTION WITH ALLOTMENTS TO SUCH AGENCIES FOR FEDERAL PUBLIC WORKS PROJECTS UNDER TITLE II OF THE SAID ACT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS, JULY 20, 1938.

I HAVE YOUR LETTER OF JULY 12, 1938, AS FOLLOWS:

THE ACT OF JUNE 21, 1938, TITLE II (PUBLIC RESOLUTION 122, 75TH CONGRESS), AUTHORIZES THE ALLOTMENT OF FUNDS THEREIN APPROPRIATED FOR FINANCING FEDERAL PUBLIC WORKS PROJECTS. PURSUANT TO THIS AUTHORITY NUMEROUS ALLOTMENTS HAVE BEEN MADE, WITH THE APPROVAL OF THE PRESIDENT, TO VARIOUS GOVERNMENT AGENCIES. A SITUATION HAS ARISEN, HOWEVER, WHICH WILL CAUSE THESE FEDERAL AGENCIES CONSIDERABLE EMBARRASSMENT AND DEFEAT THE PURPOSE OF THE CONGRESS THAT THE PROGRAM PROVIDED FOR BY THE ACT IN QUESTION BE PROSECUTED WITH ALL POSSIBLE DISPATCH, UNLESS A LIBERAL INTERPRETATION IS PLACED UPON SECTION 201 OF THE ACT.

IT APPARENTLY WAS THE INTENTION OF THE ACT TO CONTINUE THE FUNCTIONS OF THE PUBLIC WORKS ADMINISTRATION BEGUN UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT. THIS PURPOSE IS EMPHASIZED BY THE FOLLOWING WORDS TAKEN FROM SECTION 201A:

"* * * BY PROVIDING FOR USEFUL PUBLIC WORKS PROJECTS OF THE KIND AND CHARACTER WHICH THE FEDERAL EMERGENCY ADMINISTRATOR OF PUBLIC WORKS * * * HAS HERETOFORE FINANCED OR AIDED IN FINANCING, PURSUANT TO TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT, * * *.'

IN SUBSECTION "C," RELATING SPECIFICALLY TO FEDERAL PROJECTS, PROVISION IS MADE: "FOR FEDERAL CONSTRUCTION PROJECTS.'

THE VARIOUS AGENCIES SHARING IN THE PUBLIC WORKS PROGRAM ARE COMPELLED TO EMPLOY ADDITIONAL PERSONNEL; TO PURCHASE OFFICE EQUIPMENT AND SUPPLIES; TO CONDUCT CORRESPONDENCE BY LETTER, TELEGRAPH, AND TELEPHONE; TO RENT OFFICE SPACE; AND TO INCUR OTHER EXPENSES NOT PROVIDED FOR THROUGH REGULAR APPROPRIATIONS. UNDER THE TERMS OF THE NATIONAL INDUSTRIAL RECOVERY ACT, FUNDS WERE ALLOTTED TO THE SEVERAL AGENCIES TAKING PART IN THE FIRST PUBLIC WORKS PROGRAM TO COVER NECESSARY ADMINISTRATIVE EXPENSES. THESE ALLOTMENTS WERE ESTABLISHED AS SEPARATE PROJECTS, AND MONEY TRANSFERRED THERETO FROM NUMEROUS INDIVIDUAL CONSTRUCTION PROJECTS IN AMOUNTS ESTIMATED TO BE THE APPROXIMATE COST OF ADMINISTRATION IN CONNECTION WITH EACH PROJECT. THE SPENDING AGENCIES WERE THEREFORE IN A POSITION TO HIRE TECHNICAL, CLERICAL, AND ACCOUNTING ASSISTANCE AND TO MEET THE EXPENSES OF AN EXPANDED OVERHEAD ORGANIZATION.

IN VIEW OF THE LIMITATION IN SUBSECTION "C," IT HAS BEEN SUGGESTED THAT FUNDS MAY NOT BE ALLOTTED TO A SPENDING AGENCY FOR ADMINISTRATIVE EXPENSE AS THEY WERE ALLOTTED DURING THE ORIGINAL PUBLIC WORKS PROGRAM. IT IS POSSIBLE, OF COURSE, TO CHARGE THE TIME OF TECHNICAL EMPLOYEES TO A GIVEN PROJECT AND THROUGH A TEDIOUS PROCESS KEEP TIME RECORDS FOR STENOGRAPHERS, MESSENGERS, TELEPHONE OPERATORS, ACCOUNTANTS, BOOKKEEPERS, AND OTHER MISCELLANEOUS EMPLOYEES. THE VOLUME OF WORK, HOWEVER, WOULD BE IMMENSE AND ACCURACY UNDOUBTEDLY WOULD BE SACRIFICED. IT WOULD BE ALMOST IMPOSSIBLE TO DISTRIBUTE TO PROJECTS ON A PRO RATA BASIS COSTS OF OFFICE EQUIPMENT AND STATIONARY, OFFICE RENT, COMMUNICATION SERVICE, AND OTHER SIMILAR EXPENSES AT THE TIME PAYMENT THEREFOR WAS MADE. FURTHERMORE, IT MAY BE ENTIRELY IMPRACTICAL, IF NOT ACTUALLY IMPOSSIBLE, TO MAKE ANY SPECIFIC DISTRIBUTION OF DETAILED COSTS INCURRED BY CENTRAL ADMINISTRATIVE AGENCIES, SUCH AS THE DEPARTMENT OF THE INTERIOR, WHICH IN THE INTERESTS OF EFFICIENCY MUST CONDUCT CENTRALIZED ACTIVITIES FOR PURCHASING, CONTROL OF PERSONNEL, ETC., ON BEHALF OF ITS BUREAUS OR DIVISIONS, WHICH MAY BE THE ACTUAL SPENDING AGENCIES.

THE APPROPRIATION SPECIFICALLY MADE FOR ADMINISTRATIVE EXPENSES FOR THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS, WAS BASED SOLELY UPON THE NEEDS OF THIS OFFICE AND CANNOT BE DIVIDED AMONG OTHER FEDERAL AGENCIES WITHOUT DISRUPTING SERIOUSLY THE WORK WHICH THE PUBLIC WORKS ADMINISTRATION IS CHARGED TO PERFORM. RECOGNIZING THIS SITUATION AND THE FACT THAT THE SPENDING AGENCIES ARE UNABLE, WITH THEIR REGULAR APPROPRIATIONS, TO BEAR THE ADMINISTRATIVE EXPENSE DISCUSSED HEREIN, THERE ARE TWO QUESTIONS WHICH NEED TO BE DETERMINED IMMEDIATELY:

1. MAY THE PUBLIC WORKS ADMINISTRATION APPROPRIATION ACT OF 1938 BE CONSTRUED TO PERMIT THE ALLOTMENT OF FUNDS TO FEDERAL AGENCIES TO COVER ADMINISTRATIVE EXPENSES IN CONNECTION WITH THEIR SHARE OF THE PUBLIC WORKS PROGRAM?

2. IF THE ANSWER IS IN THE NEGATIVE, WHAT MEANS CAN BE PROVIDED FOR ASSURING THE SPEEDY PROSECUTION OF THIS PROGRAM AUTHORIZED BY THE CONGRESS AS AN EMERGENCY OTHER THAN BY ALLOTTING FUNDS APPROPRIATED TO THIS ADMINISTRATION FOR ADMINISTRATIVE EXPENSES?

UNLESS THIS MATTER CAN BE WORKED OUT SATISFACTORILY AND SPEEDILY, THE ENTIRE FEDERAL PROJECT PROGRAM OF THE PUBLIC WORKS ADMINISTRATION MAY BE OBSTRUCTED, CONTRARY TO THE OBVIOUS INTENT OF THE CONGRESS.

THIS SITUATION IS PRESENTED TO YOU WITH THE REQUEST THAT YOU GIVE IT YOUR IMMEDIATE PERSONAL ATTENTION, AND THAT PRIOR TO RENDERING A FORMAL OPINION YOU DISCUSS THE MATTER WITH REPRESENTATIVES OF THIS OFFICE. THE DISCUSSIONS MAY BE ARRANGED TO SUIT YOUR CONVENIENCE, BUT IT IS REQUESTED THAT A DATE BE SET AS EARLY AS POSSIBLE IN VIEW OF THE EMERGENCY, AND THAT UPON ITS DETERMINATION, MR. FRED E. SCHNEPFE OF THIS ADMINISTRATION BE INFORMALLY NOTIFIED THEREOF.

SECTION 201 (A), TITLE II, WORK RELIEF AND PUBLIC WORKS APPROPRIATION ACT OF 1938, AUTHORIZES EXPENDITURES BY THE ADMINISTRATOR, SUBJECT TO THE APPROVAL OF THE PRESIDENT, FOR "/1) THE MAKING OF ALLOTMENTS TO FINANCE FEDERAL PROJECTS.' SECTION 201 (C) FURTHER PROVIDES:

UNDER SUBSECTION (A) (1) OF THIS SECTION TO TO EXCEED $200,000,000 SHALL BE ALLOTTED FOR FEDERAL AGENCIES FOR FEDERAL CONSTRUCTION PROJECTS (INCLUDING PROJECTS FOR MAKING SURVEYS AND MAPS, NOT EXCEEDING $2,500,000) IN CONTINENTAL UNITED STATES OUTSIDE THE DISTRICT OF COLUMBIA, AND SUCH PROJECTS SHALL BE SELECTED FROM AMONG THE FOLLOWING CLASSES: (1) PROJECTS AUTHORIZED BY LAW AND FOR THE ACQUISITION OF LAND FOR SITES FOR SUCH AUTHORIZED PROJECTS; (2) PROJECTS FOR THE ENLARGEMENT, EXTENSION, OR REMODELING OF EXISTING FEDERAL PLANTS, INSTITUTIONS, OR FACILITIES; (3) PROJECTS FOR HOSPITALS AND DOMICILIARY FACILITIES OF THE VETERANS' ADMINISTRATION (INCLUDING THE ACQUISITION OF LAND FOR SITES THEREFOR) AND ANY SUCH ALLOTMENTS SHALL BE AVAILABLE FOR THE PURPOSES AND UNDER THE CONDITIONS SPECIFIED IN THE APPROPRIATION FOR "HOSPITALS AND DOMICILIARY FACILITIES" IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1939; AND (4) PROJECTS FOR PENAL AND CORRECTIONAL FACILITIES UNDER THE DEPARTMENT OF JUSTICE, INCLUDING THE ACQUISITION OF LAND FOR SITES THEREFOR: PROVIDED, THAT NOT TO EXCEED $15,000,000 OF SUCH ALLOTMENTS SHALL BE MADE FOR MILITARY OR NAVAL PURPOSES EXCEPT FOR THE HOUSING OR HOSPITALIZATION OF PERSONNEL OR FOR STORAGE OF MATERIAL, SUPPLIES, AND EQUIPMENT AT EXISTING ESTABLISHMENTS.

AS STATED IN MY DECISION OF JUNE 25, 1938, A-95797, 17 COMP. GEN. 1114, TO THE SECRETARY OF THE NAVY, WITH RESPECT TO FUNDS MADE AVAILABLE UNDERSAID SUBSECTION (C) FOR ALLOTMENTS TO FEDERAL AGENCIES FOR FEDERAL CONSTRUCTION PROJECTS, THERE IS NO PROVISION IN SAID TITLE FOR GENERAL ADMINISTRATIVE EXPENSES OF THE FEDERAL AGENCIES TO WHICH ALLOTMENTS ARE AUTHORIZED TO BE MADE. IN THAT RESPECT TITLE II DIFFERS FROM TITLE I OF THE ACT IN WHICH SPECIFIC AMOUNTS ARE APPROPRIATED FOR ADMINISTRATIVE EXPENSES OF CERTAIN ESTABLISHMENTS AND, ALSO, PROVISIONS ARE MADE FOR THE USE OF PROJECT ALLOTMENTS FOR ADMINISTRATIVE EXPENSES WITHIN CERTAIN RESTRICTIONS AND LIMITATIONS. SEE SECTION 3 OF THE ACT. SINCE IN THE ONE ACT SPECIFIC PROVISIONS ARE MADE FOR ADMINISTRATIVE EXPENSES IN CONNECTION WITH THE EXPENDITURE OF FUNDS APPROPRIATED UNDER TITLE I AND NO SUCH PROVISIONS ARE MADE WITH RESPECT TO THE EXPENDITURE OF THE FUNDS AUTHORIZED TO BE ALLOTTED UNDER SECTION 201 (C) OF TITLE II THEREOF, IT MUST BE ASSUMED THAT IT WAS NOT THE INTENT OF THE CONGRESS TO AUTHORIZE ALLOTMENTS FOR ADMINISTRATIVE EXPENSES TO FEDERAL AGENCIES TO WHICH ALLOTMENTS ARE AUTHORIZED TO BE MADE FOR CONSTRUCTION PROJECTS IN CONNECTION WITH THE PUBLIC WORKS PROGRAM UNDER TITLE II. THEREFORE, YOUR QUESTION 1 MUST BE ANSWERED IN THE NEGATIVE.

YOUR SECOND QUESTION IS NOT FOR DETERMINATION BY THIS OFFICE. HOWEVER, IT MAY BE SUGGESTED THAT WHILE OBVIOUSLY THERE MAY BE INCREASED ADMINISTRATIVE COSTS INCIDENT TO THE ADMINISTRATION OF THE CONSTRUCTION PROJECTS FOR WHICH ALLOTMENTS ARE AUTHORIZED TO BE MADE UNDER SECTION 201 (C), IT IS NOT UNREASONABLE TO ASSUME THAT SUCH COSTS AS CANNOT PROPERLY BE CHARGED TO THE CONSTRUCTION PROJECT ALLOTMENT AS BEING DIRECTLY INCIDENT TO THE PROSECUTION OF THE PROJECT WERE INTENDED TO BE ABSORBED BY THE AGENCY UNDER THE REGULAR APPROPRIATIONS MADE FOR ITS ADMINISTRATIVE EXPENSES. IN THIS CONNECTION THERE IS FOR CONSIDERATION SECTION 46, TITLE V, U.S.C., WHICH PROHIBITS THE EMPLOYMENT OF PERSONAL SERVICES AT THE SEAT OF GOVERNMENT UNDER ANY APPROPRIATION MADE FOR ANY SPECIFIC OR GENERAL PURPOSE, UNLESS SUCH EMPLOYMENT IS AUTHORIZED AND PAYMENT THEREFOR PROVIDED IN THE LAW GRANTING THE APPROPRIATION. THE ONLY PROVISION MADE IN TITLE II OF THE SAID ACT OF JUNE 21, 1938, FOR PAYMENT FOR PERSONAL SERVICES AT THE SEAT OF GOVERNMENT IS THAT MADE IN SECTION 201 (F) THEREOF.