B-108466, MAY 8, 1952, 31 COMP. GEN. 578

B-108466: May 8, 1952

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1952: REFERENCE IS MADE TO LETTER DATED MARCH 17. AS FOLLOWS: "WHENEVER IN THIS ACT AN AMOUNT IS SPECIFIED WITHIN AN APPROPRIATION FOR PARTICULAR PURPOSES OR OBJECT OF EXPENDITURE. IT IS EXPLAINED IN THE LETTER THAT THE AUDITOR FOR THE DISTRICT OF COLUMBIA DISAPPROVED A REQUEST OF THE MUNICIPAL ARCHITECT FOR THE TRANSFER OF $51. THAT THE ACTION OF THE AUDITOR WAS BASED UPON THE VIEW THAT THE PROVISIONS OF SECTION 4. THAT THE LATTER CONTENDS THE AMOUNT OF FUNDS TRANSFERABLE TO HIM IS GOVERNED BY THE PERCENTAGE LIMITATION PROVISION ON CONSTRUCTION WORK WHICH. HE ALSO CONTENDS IS NOT SUBJECT TO THE SAID SECTION 4. THE INTENT AND PURPOSE OF SECTION 4 IS TO CHANGE THE AVAILABILITY OF AN AMOUNT WITHIN AN APPROPRIATION SPECIFIED FOR A PARTICULAR PURPOSE OR OBJECT OF EXPENDITURE FROM A SPECIFIC AMOUNT TO A "NOT TO EXCEED" OR MAXIMUM AMOUNT.

B-108466, MAY 8, 1952, 31 COMP. GEN. 578

APPROPRIATIONS - LIMITATIONS - SPECIFIC V. GENERAL THE SPECIFIC LIMITATION IN THE APPROPRIATION " CAPITAL OUTLAY, PUBLIC SCHOOL CONSTRUCTION, SITES AND EQUIPMENT" CONTAINED IN THE DISTRICT OF COLUMBIA APPROPRIATION ACT, 1952, UPON THE AMOUNT TO BE MADE AVAILABLE FOR THE USE OF THE MUNICIPAL ARCHITECT, FIXES THE MAXIMUM AMOUNT THAT MAY BE TRANSFERRED TO THE APPROPRIATION ACCOUNT " OFFICE OF MUNICIPAL ARCHITECT, CONSTRUCTION SERVICES," FOR PLANS AND SPECIFICATIONS INCIDENT TO PUBLIC SCHOOL CONSTRUCTION, AND THEREFORE, THE GENERAL PERCENTAGE LIMITATION PROVISION ON CONSTRUCTION WORK PROVIDED IN SAID ACT MAY NOT OPERATE TO INCREASE THE AMOUNT SO FIXED.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, MAY 8, 1952:

REFERENCE IS MADE TO LETTER DATED MARCH 17, 1952, FROM THE ACTING PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, REQUESTING A DECISION AS TO WHETHER THE APPROPRIATION ACCOUNT , OFFICE OF MUNICIPAL ARCHITECT, CONSTRUCTION SERVICES" MAY BE INCREASED BY TRANSFERS FROM THE APPROPRIATION FOR " CAPITAL OUTLAY, PUBLIC SCHOOL CONSTRUCTION, SITES AND EQUIPMENT" CONTAINED IN THE DISTRICT OF COLUMBIA APPROPRIATION ACT, 1952, PUBLIC LAW 106, APPROVED AUGUST 3, 1951, IN EXCESS OF THE AMOUNT OF $190,000 SPECIFIED THEREIN FOR THE EXCLUSIVE USE OF THE MUNICIPAL ARCHITECT.

THE QUESTION APPARENTLY ARISES BY REASON OF THE PROVISION CONTAINED IN THE CITED ACT UNDER THE HEADING " PUBLIC WORKS," 65 STAT. 164, WHICH PROVIDES:

"ALL APPORTIONMENTS OF APPROPRIATIONS FOR THE USE OF THE OFFICE OF MUNICIPAL ARCHITECT IN PAYMENT OF PERSONAL SERVICES EMPLOYED ON CONSTRUCTION WORK PROVIDED FOR BY SAID APPROPRIATIONS SHALL BE BASED ON AN AMOUNT NOT EXCEEDING 4 PERCENTUM OF A TOTAL OF NOT MORE THAN $2,000,000 OF APPROPRIATIONS MADE FOR SUCH CONSTRUCTION PROJECTS AND NOT EXCEEDING 3 3/4 PERCENTUM OF A TOTAL OF THE APPROPRIATIONS IN EXCESS OF $2,000,000, AND APPROPRIATIONS SPECIFICALLY MADE IN THIS ACT FOR THE PREPARATION OF PLANS AND SPECIFICATIONS SHALL BE DEDUCTED FROM ANY ALLOWANCES AUTHORIZED UNDER THIS PARAGRAPH: * * *" (ITALICS SUPPLIED.) AND SECTION 4 OF THE " GENERAL PROVISIONS," 65 STAT. 171, AS FOLLOWS:

"WHENEVER IN THIS ACT AN AMOUNT IS SPECIFIED WITHIN AN APPROPRIATION FOR PARTICULAR PURPOSES OR OBJECT OF EXPENDITURE, SUCH AMOUNT, UNLESS OTHERWISE SPECIFIED, SHALL BE CONSIDERED AS THE MAXIMUM AMOUNT WHICH MAY BE EXPENDED FOR SAID PURPOSE OR OBJECT RATHER THAN AN AMOUNT SET APART EXCLUSIVELY THEREFOR.'

IT IS EXPLAINED IN THE LETTER THAT THE AUDITOR FOR THE DISTRICT OF COLUMBIA DISAPPROVED A REQUEST OF THE MUNICIPAL ARCHITECT FOR THE TRANSFER OF $51,722 FROM THE FOREGOING APPROPRIATION, SAID AMOUNT REPRESENTING THE DIFFERENCE BETWEEN $190,000 AND THE AMOUNT DETERMINED TO BE TRANSFERABLE THEREFROM UNDER THE ABOVE QUOTED PERCENTAGE LIMITATION PROVISION ON CONSTRUCTION WORK; THAT THE ACTION OF THE AUDITOR WAS BASED UPON THE VIEW THAT THE PROVISIONS OF SECTION 4, SUPRA, FIX THE AMOUNT OF $190,000 AS THE MAXIMUM SUM WHICH MAY BE TRANSFERRED FROM THE APPROPRIATION IN QUESTION FOR THE USE OF THE MUNICIPAL ARCHITECT; AND THAT THE LATTER CONTENDS THE AMOUNT OF FUNDS TRANSFERABLE TO HIM IS GOVERNED BY THE PERCENTAGE LIMITATION PROVISION ON CONSTRUCTION WORK WHICH, HE ALSO CONTENDS IS NOT SUBJECT TO THE SAID SECTION 4, BY REASON OF THE EXCEPTING PHRASE "UNLESS OTHERWISE SPECIFIED" CONTAINED THEREIN.

THE INTENT AND PURPOSE OF SECTION 4 IS TO CHANGE THE AVAILABILITY OF AN AMOUNT WITHIN AN APPROPRIATION SPECIFIED FOR A PARTICULAR PURPOSE OR OBJECT OF EXPENDITURE FROM A SPECIFIC AMOUNT TO A "NOT TO EXCEED" OR MAXIMUM AMOUNT, SO THAT AN EXCESS THEREUNDER MAY BE USED FOR THE GENERAL PURPOSES OF THE APPROPRIATION. 18 COMP. GEN. 211, 212. THE PHRASE "UNLESS OTHERWISE SPECIFIED" REFERS TO THE WORDS "WITHIN AN APPROPRIATION" AND, AS USED THEREIN, REASONABLY CONTEMPLATES THOSE INSTANCES WHERE THE CONGRESS USES WORDS OF LIMITATION WITHIN AN APPROPRIATION, WHICH MANIFEST A CLEAR INTENT THAT THE AMOUNT SET ASIDE FOR PARTICULAR DESIGNATED PURPOSES CONSTITUTES A RESTRICTED OR FIXED AMOUNT--- AS DISTINGUISHED FROM A MAXIMUM AMOUNT--- AND, IN SUCH CIRCUMSTANCES, THE PHRASE EXCEPTS FROM APPLICATION THE CHANGE IN AVAILABILITY OTHERWISE DIRECTED BY THE SECTION. FOR EXAMPLE, SEE THE APPROPRIATION FOR THE OFFICE OF MUNICIPAL ARCHITECT CONTAINED IN THE DISTRICT OF COLUMBIA APPROPRIATION ACT OF 1951, PUBLIC LAW 616, APPROVED JULY 18, 1950, 64 STAT. 360, WHICH CONTAINS A LIMITATION THEREUNDER ON THE AMOUNT OF FUNDS "EXCLUSIVELY" FOR TEST BORINGS AND SOIL INVESTIGATIONS.

HENCE, IT DOES NOT APPEAR, AS CONTENDED BY THE MUNICIPAL ARCHITECT, THAT THE PERCENTAGE LIMITATION PROVISION WAS INTENDED TO BE ENCOMPASSED BY THE PHRASE "UNLESS OTHERWISE SPECIFIED," AND IN APPLYING THE PROVISIONS OF SECTION 4 TO THE LIMITATION OF $190,000 THE EFFECT THEREOF IS TO CHANGE THE AVAILABILITY OF THE ITEM FROM A RESTRICTED OR FIXED AMOUNT TO A MAXIMUM AMOUNT. THUS, THERE REMAINS FOR CONSIDERATION WHETHER THE SPECIFIC APPROPRIATION LIMITATION OR THE GENERAL PERCENTAGE LIMITATION PROVISION IS FOR APPLICATION IN DETERMINING THE AMOUNT OF FUNDS PROPERLY TRANSFERABLE TO THE MUNICIPAL ARCHITECT FOR PLANS AND SPECIFICATIONS INCIDENT TO PUBLIC SCHOOL CONSTRUCTION.

THE PERCENTAGE LIMITATION PROVISION QUOTED ABOVE HAS APPEARED IN DISTRICT OF COLUMBIA APPROPRIATION ACTS, IN SUBSTANTIALLY THE SAME FORM, SINCE THE FISCAL YEAR 1925 (43 STAT. 541). THE ITALICIZED PORTION THEREOF APPEARED FOR THE FIRST TIME IN THE APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1940, 53 STAT. 1004, 1006. SEE SENATE REPORT NO. 535, 76TH CONGRESS, ST SESSION. THE PURPOSE OF THE PROVISION IS TO ESTABLISH AN OVER-ALL PERCENTAGE LIMIT ON THE AMOUNT OF FUNDS AVAILABLE TO THE MUNICIPAL ARCHITECT FOR PERSONAL SERVICE EXPENDITURES INCIDENT TO CONSTRUCTION WORK. THE EFFECT OF THE ITALICIZED LANGUAGE IS TO FACILITATE COMPLIANCE WITH SUCH PERCENTAGE LIMITATION IN VIEW OF THE PRACTICE GENERALLY FOLLOWED BY THE CONGRESS OF APPROPRIATING, IN ADVANCE OF FUNDS FOR CONSTRUCTION, A SPECIFIC AMOUNT TO COVER THE PARTIAL COST OF PREPARING PLANS AND SPECIFICATIONS. SEE SENATE HEARINGS ON THE DISTRICT OF COLUMBIA APPROPRIATION BILL FOR 1940, PAGE 95.

IT IS PERTINENT TO NOTE AT THIS POINT THAT THE 4 PERCENT AND 3 3/4 PERCENT SPECIFIED IN THE GENERAL PERCENTAGE LIMITATION PROVISION, IS THE MAXIMUM THAT MAY BE USED BY THE MUNICIPAL ARCHITECT FOR THE EMPLOYMENT OF PERSONAL SERVICES ON ALL CONSTRUCTION WORK PROVIDED FOR BY THE SEVERAL APPROPRIATIONS FOR THE DISTRICT OF COLUMBIA. IF THE CONGRESS HAD INTENDED NOT TO OTHERWISE LIMIT THE AMOUNT OF FUNDS AVAILABLE TO THE MUNICIPAL ARCHITECT FROM THE APPROPRIATION UNDER CONSIDERATION, IT SEEMS CLEAR THAT NO ACTION IN THE MATTER NEED HAVE BEEN TAKEN. AND, SINCE THE CONGRESS SAW FIT TO IMPOSE UNDER SAID APPROPRIATION A SPECIFIC LIMITATION OF $190,000, EFFECT MUST NECESSARILY BE GIVEN THERETO UNDER THE RULE OF STATUTORY CONSTRUCTION THAT WHERE THERE IS A GENERAL AND SPECIAL PROVISION IN THE SAME OR DIFFERENT STATUTES, IN APPARENT CONFLICT, THE SPECIAL PROVISION QUALIFIES THE GENERAL PROVISION AND SUPPLIES AN EXCEPTION THERETO. SEE 27 COMP. GEN. 439, 442, 29 ID. 374.

THE CONCLUSION IS REQUIRED, THEREFORE, THAT THE LIMITATION OF $190,000 UNDER THE APPROPRIATION " CAPITAL OUTLAY, PUBLIC SCHOOL CONSTRUCTION, SITES AND EQUIPMENT," IS THE MAXIMUM AMOUNT THAT MAY BE TRANSFERRED THEREFROM TO THE OFFICE OF THE MUNICIPAL ARCHITECT. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.