B-106964, JANUARY 17, 1952, 31 COMP. GEN. 308

B-106964: Jan 17, 1952

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CIVIL DEFENSE - CONTRIBUTIONS TO STATES - RETROACTIVE PAYMENTS THE AUTHORIZATION IN SECTION 201 (I) OF THE FEDERAL CIVIL DEFENSE ACT OF 1950 TO MAKE CONTRIBUTIONS TO STATES ON THE BASIS OF CIVIL DEFENSE PROGRAMS OR PROJECTS APPROVED BY THE ADMINISTRATOR INCLUDES THE AUTHORITY TO MAKE CONTRIBUTIONS UPON THE ADMINISTRATOR'S APPROVAL WHERE THE EQUIPMENT WAS CONTRACTED FOR AND PURCHASED BY THE STATE AFTER THE DATE A FEDERAL APPROPRIATION BECAME AVAILABLE FOR SUCH CONTRIBUTION BUT PRIOR TO THE GOVERNMENT'S COMMITMENT TO CONTRIBUTE TO THE COST THEREOF. 1952: REFERENCE IS MADE TO LETTER OF DECEMBER 29. REQUESTING DECISION OF CERTAIN QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH CONTRIBUTIONS TO THE STATES UNDER THE PROVISIONS OF SECTION 201 (I) OF THE FEDERAL CIVIL DEFENSE ACT OF 1950.

B-106964, JANUARY 17, 1952, 31 COMP. GEN. 308

CIVIL DEFENSE - CONTRIBUTIONS TO STATES - RETROACTIVE PAYMENTS THE AUTHORIZATION IN SECTION 201 (I) OF THE FEDERAL CIVIL DEFENSE ACT OF 1950 TO MAKE CONTRIBUTIONS TO STATES ON THE BASIS OF CIVIL DEFENSE PROGRAMS OR PROJECTS APPROVED BY THE ADMINISTRATOR INCLUDES THE AUTHORITY TO MAKE CONTRIBUTIONS UPON THE ADMINISTRATOR'S APPROVAL WHERE THE EQUIPMENT WAS CONTRACTED FOR AND PURCHASED BY THE STATE AFTER THE DATE A FEDERAL APPROPRIATION BECAME AVAILABLE FOR SUCH CONTRIBUTION BUT PRIOR TO THE GOVERNMENT'S COMMITMENT TO CONTRIBUTE TO THE COST THEREOF; HOWEVER, RETROACTIVE PAYMENTS MAY NOT BE MADE FOR OBLIGATIONS INCURRED OR EXPENDITURES MADE BY THE STATES PRIOR TO THE DATE THE APPROPRIATION BECOMES AVAILABLE TO MAKE CONTRIBUTIONS TO THE STATES.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, FEDERAL CIVIL DEFENSE ADMINISTRATION, JANUARY 17, 1952:

REFERENCE IS MADE TO LETTER OF DECEMBER 29, 1951, WITH ENCLOSURES, FROM THE ACTING ADMINISTRATOR, REQUESTING DECISION OF CERTAIN QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH CONTRIBUTIONS TO THE STATES UNDER THE PROVISIONS OF SECTION 201 (I) OF THE FEDERAL CIVIL DEFENSE ACT OF 1950, APPROVED JANUARY 12, 1951, 64 STAT. 1249, AND APPROPRIATION ACTS MAKING FUNDS AVAILABLE THEREFOR.

THE QUESTIONS ARE SET FORTH IN THE SAID LETTER, AS FOLLOWS:

(1) MAY WE APPROVE CONTRIBUTIONS TO THE STATES FOR ITEMS OF ORGANIZATIONAL EQUIPMENT CONTRACTED FOR AND PURCHASED BY THEM AFTER THE DATE OF THE FEDERAL APPROPRIATION FROM WHICH THE CONTRIBUTION WILL BE MADE BUT PRIOR TO OUR COMMITMENT TO CONTRIBUTE TOWARD THE COST OF SUCH TEMS?

(2) MAY WE MAKE CONTRIBUTIONS IN A SITUATION DUPLICATING THE ABOVE EXCEPT THAT THE STATE HAS CONTRACTED FOR THE ITEMS OF EQUIPMENT PRIOR TO THE DATE OF THE APPLICABLE FEDERAL APPROPRIATION?

(3) MAY WE MAKE CONTRIBUTIONS WHERE THE STATE HAS BOTH CONTRACTED FOR AND EXPENDED MONIES PRIOR TO THE DATE OF THE APPLICABLE FEDERAL APPROPRIATION AND PRIOR TO OUR COMMITMENT TO CONTRIBUTE TO THE COST OF SUCH ITEMS?

SECTION 201 OF THE FEDERAL CIVIL DEFENSE ACT OF 1950, 64 STAT. 1248, 1249, READS, IN PERTINENT PART, AS FOLLOWS:

SEC. 201. THE ADMINISTRATOR IS AUTHORIZED, IN ORDER TO CARRY OUT THE ABOVE-MENTIONED PURPOSES, TO---

(I) MAKE FINANCIAL CONTRIBUTIONS, ON THE BASIS OF PROGRAMS OR PROJECTS APPROVED BY THE ADMINISTRATOR, TO THE STATES FOR CIVIL DEFENSE PURPOSES * * *. SUCH CONTRIBUTIONS SHALL BE MADE ON SUCH TERMS OR CONDITIONS AS THE ADMINISTRATOR SHALL PRESCRIBE * * *. SECTION 408 OF THAT ACT, 64 STAT. 1257, AUTHORIZES TO BE APPROPRIATED SUCH FUNDS AS MAY BE NECESSARY TO CARRY OUT ITS PROVISIONS.

THE WORD "APPROVED" IS SUFFICIENTLY BROAD TO ENCOMPASS BOTH AN AUTHORIZATION IN ADVANCE OR AN APPROVAL AFTER THE FACT. 21 COMP. GEN. 921; 22 ID. 749. THUS, THE AUTHORIZATION TO MAKE CONTRIBUTIONS TO THE STATES ON THE BASIS OF PROGRAMS OR PROJECTS APPROVED BY THE ADMINISTRATOR INCLUDES THE AUTHORITY TO MAKE CONTRIBUTIONS UPON THE ADMINISTRATOR'S APPROVAL AFTER THE FACT WHERE THE EQUIPMENT WAS CONTRACTED FOR, AND PURCHASED BY THE STATE AFTER THE DATE A FEDERAL APPROPRIATION BECAME AVAILABLE FOR SUCH CONTRIBUTION. THE FIRST QUESTION IS THUS ANSWERED IN THE AFFIRMATIVE.

AS TO THE SECOND AND THIRD QUESTIONS, THE MATTER OF MAKING RETROACTIVE CONTRIBUTIONS IN CONNECTION WITH SUPPLIES CONTRACTED FOR BY THE STATES OR FINALLY PURCHASED AND PAID FOR BY THEM FOR CIVIL DEFENSE PURPOSES HAS BEEN CONSIDERED BY THE CONGRESS AND ITS COMMITTEES ON SEVERAL OCCASIONS. THUS, IN THE COURSE OF HEARINGS CONCERNING THE PROVISIONS OF THE THIRD SUPPLEMENTAL APPROPRIATION ACT, 1951, APPROVED JUNE 2, 1951, 65 STAT. 52, THE ADMINISTRATOR SUBMITTED A MEMORANDUM DATED MARCH 27, 1951, TO THE HOUSE APPROPRIATION COMMITTEE RELATIVE TO THE MATTER. IT IS STATED IN THE OPINION OF THE GENERAL COUNSEL OF YOUR ADMINISTRATION--- WHICH WAS FORWARDED WITH THE LETTER OF THE ACTING ADMINISTRATOR--- THAT THE SAID MEMORANDUM DECLARED, THAT UNLESS THE CONGRESS SHOULD AUTHORIZE OTHERWISE (1) THE ADMINISTRATOR WOULD NOT MAKE CONTRIBUTIONS TO MATCH STATE EXPENDITURES MADE PRIOR TO THE EFFECTIVE DATE OF THE APPROPRIATION BUT THAT (2) "CONTRIBUTIONS WOULD BE MADE TO MATCH COMMITMENTS MADE PRIOR TO THE APPROPRIATION IN CASES WHERE THE ACTUAL EXPENDITURES WERE NOT MADE UNTIL AFTER THE APPROPRIATION BECAME EFFECTIVE.' HOWEVER, THE SECOND PROPOSITION MENTIONED DOES NOT APPEAR TO BE CLEARLY BROUGHT OUT IN THE SAID MEMORANDUM SO AS TO WARRANT THE CONCLUSION THAT THE CONGRESS WAS CLEARLY AWARE THEREOF AND INTENDED THAT CONTRIBUTIONS WOULD BE MADE IN CONNECTION WITH OBLIGATIONS INCURRED BY THE STATES FOR CIVIL DEFENSE BUT NOT SATISFIED BY PAYMENT AT THE EFFECTIVE DATE OF THE FEDERAL APPROPRIATION AUTHORIZING CONTRIBUTIONS. THAT THE CONGRESS RECOGNIZED NO SUCH DISTINCTION AND THAT THE MEMORANDUM WAS UNDERSTOOD BY THE CONGRESS AS MERELY ESTABLISHING A POLICY THAT NO RETROACTIVE PAYMENTS WOULD BE MADE IN CONNECTION WITH OBLIGATIONS INCURRED OR EXPENDITURE MADE BY THE STATES PRIOR TO A FEDERAL APPROPRIATION BECOMING AVAILABLE, APPEARS TO BE EVIDENT FROM THE DISCUSSION OF THE MATTER ON THE FLOOR OF THE HOUSE. CONGRESSIONAL RECORD FOR APRIL 10, 1951, PAGES 3682-3). THUS, IN RESPONSE TO THE QUERY OF CONGRESSMAN SEELY-1BROWN AS TO WHETHER A FEDERAL CONTRIBUTION WOULD BE AUTHORIZED IF THE STATE OF CONNECTICUT, SUBSEQUENT TO THE ENACTMENT OF THE FEDERAL CIVIL DEFENSE ACT BUT PRIOR TO THE ENACTMENT OF A FEDERAL APPROPRIATION, OBLIGATED $300,000 FOR CIVIL DEFENSE PURPOSES, THERE WERE READ EXCERPTS FROM THE MEMORANDUM OF MARCH 27, 1951, FROM WHICH IT APPEARS BOTH HE AND HIS COLLEAGUES UNDERSTOOD NO FEDERAL CONTRIBUTIONS WOULD BE FORTHCOMING IN CONNECTION WITH SUCH COMMITMENT IN THE ABSENCE OF FURTHER LEGISLATIVE ACTION. ALSO, DURING THE SENATE DEBATE ON THE SAME BILL, SUCH A PROPOSED AMENDMENT TO PERMIT RETROACTIVE CONTRIBUTIONS TO BE MADE IN CONNECTION WITH "PROJECTS INITIATED BY THE STATES ON OR AFTER JANUARY 12, 1951, NOTWITHSTANDING THE FACT THAT STATE FUNDS THEREFOR WERE OBLIGATED OR EXPENDED PRIOR TO APPROVAL BY THE ADMINISTRATOR" WAS REJECTED. CONGRESSIONAL RECORD FOR MAY 9, 1951, PAGE 5265. FURTHER, THE REPORT OF THE HOUSE COMMITTEE ON APPROPRIATIONS ON THE SUPPLEMENTAL APPROPRIATION ACT H.R. 890, 82D CONGRESS, PAGE 47) ON A PROPOSAL OF THE ADMINISTRATOR TO MAKE RETROACTIVE CONTRIBUTIONS TO THE STATES FOR FUNDS EXPENDED SINCE JANUARY 12, 1951, APPEARS PERTINENT AS TO SUCH PAYMENTS FOR PERIODS PRIOR TO THE EFFECTIVE DATE OF THE APPROPRIATION. THE SAID REPORT STATES AS FOLLOWS:

* * * THIS IS DIRECTLY CONTRARY TO THE POSITION TAKEN BY THE CIVIL DEFENSE ADMINISTRATION EARLIER IN THE YEAR. THE COMMITTEE AGREES WITH THE PREVIOUS POSITION ASSUMED BY THE ADMINISTRATION INASMUCH AS A POLICY OF RETROACTIVE PAYMENTS WOULD BE DETRIMENTAL TO THE CIVIL DEFENSE PROGRAM AND CONTRARY TO FISCAL POLICIES OF THE FEDERAL GOVERNMENT. THE SENATE COMMITTEE IN ITS REPORT ( SENATE REPORT 891, 82D CONGRESS, PAGE 242), IN ORDER TO RATIFY PREVIOUS EXPENDITURES, RECOMMENDED CERTAIN LANGUAGE WHICH BECAME SECTION 1001 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1952, 65 STAT. 754, AND WHICH READS AS FOLLOWS:

THE APPROPRIATIONS AND AUTHORITY PROVIDED IN CHAPTER XI OF THE THIRD SUPPLEMENTAL APPROPRIATION ACT, 1951, APPROVED JUNE 2, 1951, UNDER THE HEADING " EXPENSES OF DEFENSE PRODUCTION" AND " FEDERAL CIVIL DEFENSE ADMINISTRATION," SHALL BE AVAILABLE FROM AND INCLUDING APRIL 1, 1951, FOR THE PURPOSES RESPECTIVELY PROVIDED IN SUCH APPROPRIATIONS AND AUTHORITY. ALL OBLIGATIONS INCURRED DURING THE PERIOD APRIL 1, TO JUNE 1, 1951, INCLUSIVE, IN ANTICIPATION OF SUCH APPROPRIATIONS AND AUTHORITY ARE HEREBY RATIFIED AND CONFIRMED IF IN ACCORDANCE WITH THE TERMS THEREOF.

IN VIEW OF THE ABOVE LEGISLATIVE HISTORY, IT APPEARS THAT THE CONGRESS DID NOT INTEND OR CONTEMPLATE THAT RETROACTIVE PAYMENTS WOULD BE MADE FOR OBLIGATIONS INCURRED OR EXPENDITURES MADE BY THE STATES PRIOR TO AN APPROPRIATION BECOMING AVAILABLE. ACCORDINGLY, THE HOLDING IN A-71315 DATED FEBRUARY 28, 1936, THAT, IN THE ABSENCE OF A CONTRARY INDICATION, SUMS APPROPRIATED FOR GRANTS ARE AVAILABLE FOR USE ONLY PROSPECTIVELY FROM THE DATE OF THE APPROPRIATION AND NOT FOR REIMBURSING STATES FOR EXPENDITURES THERETOFORE MADE OR FOR LIQUIDATING OBLIGATIONS THERETOFORE INCURRED APPEARS FOR APPLICATION AND YOUR SECOND AND THIRD QUESTIONS ARE ANSWERED IN THE NEGATIVE. HOWEVER, IN VIEW OF SECTION 1001 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1952, FUNDS FOR CONTRIBUTIONS TO THE STATES MADE BY THE THIRD SUPPLEMENTAL APPROPRIATION ACT, 1951, FOR THE PURCHASE OF "MEDICAL SUPPLIES AND EQUIPMENT" AND "FOR TRAINING AND EDUCATION" ARE AVAILABLE FOR CONTRIBUTIONS TO APPROVED OBLIGATIONS INCURRED BY THE STATES FOR THOSE PURPOSES ON AND AFTER APRIL 1, 1951.