B-111765, OCTOBER 7, 1952, 32 COMP. GEN. 171

B-111765: Oct 7, 1952

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APPROVAL BY THE SECRETARY OF THE NAVY OF TUITION PAYMENTS UNDER EMPLOYEE TRAINING CONTRACTS ENTERED INTO WITHOUT PRIOR SECRETARIAL APPROVAL WILL MEET THE REQUIREMENT OF THE ACT SO AS TO PERMIT SUCH PAYMENTS UNDER THE CONTRACTS. WHICH REQUIRE SECRETARIAL APPROVAL MAY BE CHARGED TO THE APPROPRIATIONS AVAILABLE FOR EMPLOYEE TRAINING AT THE TIME CONTRACTS FOR SUCH TRAINING WERE ENTERED INTO EVEN THOUGH THE APPROVAL OF THE CONTRACTS AND EXPENSES BY THE SECRETARY CONCERNED WAS MADE AT A LATER DATE. 1952: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 3. THE PROVISION IN QUESTION IS. IT IS STATED IN YOUR LETTER THAT YOUR DEPARTMENT ISSUED INSTRUCTIONS UNDER DATE OF JANUARY 3. IT IS INDICATED THAT A NUMBER OF ACTIVITIES ENTERED INTO CONTRACTS FOR THE INSTRUCTION OR TRAINING OF CIVILIAN EMPLOYEES SUBSEQUENT TO THE PASSAGE OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT.

B-111765, OCTOBER 7, 1952, 32 COMP. GEN. 171

OFFICERS AND EMPLOYEES - TRAINING - APPROPRIATION AVAILABILITY UNDER SECTION 610 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952, WHICH PROVIDES FUNDS FOR ALL NECESSARY EXPENSES IN CONNECTION WITH CIVILIAN EMPLOYEE INSTRUCTION AND TRAINING SPECIFICALLY APPROVED BY THE SECRETARY OF THE DEPARTMENT CONCERNED, APPROVAL BY THE SECRETARY OF THE NAVY OF TUITION PAYMENTS UNDER EMPLOYEE TRAINING CONTRACTS ENTERED INTO WITHOUT PRIOR SECRETARIAL APPROVAL WILL MEET THE REQUIREMENT OF THE ACT SO AS TO PERMIT SUCH PAYMENTS UNDER THE CONTRACTS, HOWEVER THE SPIRIT AND INTENT OF THE STATUTE WOULD BE MORE COMPLETELY FULFILLED BY THE ADVANCE APPROVAL OF SUCH EXPENSES. THE EXPENSES INCURRED UNDER THE EMPLOYEE TRAINING PROVISIONS OF SECTION 610 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952, WHICH REQUIRE SECRETARIAL APPROVAL MAY BE CHARGED TO THE APPROPRIATIONS AVAILABLE FOR EMPLOYEE TRAINING AT THE TIME CONTRACTS FOR SUCH TRAINING WERE ENTERED INTO EVEN THOUGH THE APPROVAL OF THE CONTRACTS AND EXPENSES BY THE SECRETARY CONCERNED WAS MADE AT A LATER DATE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, OCTOBER 7, 1952:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 3, 1952, REQUESTING THE DECISION OF THIS OFFICE ON CERTAIN QUESTIONS ARISING FROM THE PROVISIONS OF SECTION 610 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952, 65 STAT. 445, AND THE SAME SECTION OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1953, 66 STAT. 532.

THE PROVISION IN QUESTION IS, IN PERTINENT PART, AS FOLLOWS:

APPROPRIATIONS CONTAINED IN THIS ACT SHALL BE AVAILABLE FOR * * * ALL NECESSARY EXPENSES, AT THE SEAT OF GOVERNMENT OF THE UNITED STATES OF AMERICA OR ELSEWHERE, IN CONNECTION WITH (1) INSTRUCTION AND TRAINING, INCLUDING TUITION, SPECIFICALLY APPROVED BY THE SECRETARY OF THE DEPARTMENT CONCERNED AND NOT OTHERWISE PROVIDED FOR, OF CIVILIAN EMPLOYEES, * * *.

IT IS STATED IN YOUR LETTER THAT YOUR DEPARTMENT ISSUED INSTRUCTIONS UNDER DATE OF JANUARY 3, 1952, TO ALL ACTIVITIES CONCERNED, REQUIRING SUCH ACTIVITIES TO COMPLY WITH THIS PROVISION BY FORWARDING TO THE UNDER SECRETARY OF THE NAVY FOR APPROVAL, VIA THE BUREAU OR OFFICE HAVING MANAGEMENT CONTROL AND THE OFFICE OF INDUSTRIAL RELATIONS, ALL REQUISITIONS FOR PAYMENT OF TUITION FOR TRAINING OF CIVILIAN EMPLOYEES OF THE NAVY BEFORE OBLIGATING FUNDS THEREFOR.

HOWEVER, IT IS INDICATED THAT A NUMBER OF ACTIVITIES ENTERED INTO CONTRACTS FOR THE INSTRUCTION OR TRAINING OF CIVILIAN EMPLOYEES SUBSEQUENT TO THE PASSAGE OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952, SUPRA, BUT WITHOUT SECURING THE PRIOR APPROVAL OF THE SECRETARY OF THE NAVY, ACTING IN ACCORDANCE WITH PROCEDURES PRESCRIBED UNDER PRIOR APPROPRIATION ACTS WHICH DID NOT REQUIRE SECRETARIAL APPROVAL OF SUCH CONTRACTS. IT IS FURTHER INDICATED THAT THE UNDER SECRETARY OF THE NAVY HAS CAREFULLY EXAMINED A NUMBER OF REQUESTS WHICH HAVE BEEN SUBMITTED TO HIM FOR APPROVAL OF TUITION PAYMENTS UNDER SUCH CONTRACTS AND HAS DETERMINED THAT THE INSTRUCTION AND TRAINING FURNISHED WERE FULLY JUSTIFIED AND IN THE BEST INTERESTS OF THE NAVY AND THAT, HAD REQUEST FOR APPROVAL THEREOF BEEN SUBMITTED IN ADVANCE, THE APPROVAL WOULD HAVE BEEN GRANTED. HENCE, THE DECISION OF THIS OFFICE IS REQUESTED ON THE QUESTION OF WHETHER APPROVAL BY THE SECRETARY OF THE NAVY OR THE UNDER SECRETARY OF THE NAVY AT THIS TIME OF REQUESTS FOR APPROVAL OF TUITION PAYMENTS IN CONNECTION WITH INSTRUCTION OR TRAINING FURNISHED TO CIVILIAN EMPLOYEES OF THE NAVAL ESTABLISHMENT UNDER CONTRACTS OR AGREEMENTS ENTERED INTO SUBSEQUENT TO THE DATE OF APPROVAL OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952, SUPRA, WITHOUT PRIOR SECRETARIAL APPROVAL, WILL MEET THE REQUIREMENTS OF SECTION 610 OF THAT ACT SO THAT PAYMENTS LEGALLY MAY BE MADE UNDER SUCH CONTRACTS OR AGREEMENTS AND, IF SO, WHETHER SUCH PAYMENT MAY BE CHARGED TO THE APPROPRIATIONS WHICH WERE AVAILABLE FOR SUCH EXPENSES AT THE TIME THE CONTRACTS OR AGREEMENTS WERE ENTERED INTO, OR WHETHER THEY MUST BE CHARGED AGAINST APPROPRIATIONS CURRENTLY AVAILABLE FOR THIS PURPOSE AT THE TIME OF APPROVAL.

THIS OFFICE HAS REPEATEDLY HELD THAT THE WORD "APPROVED," AS USED IN STATUTES AND REGULATIONS, CONTEMPLATES THE RATIFICATION OR CONFIRMATION OF A THING ALREADY DONE, AS DIFFERENTIATED FROM THE WORD "AUTHORIZED" WHICH CONTEMPLATES THE GIVING OF PERMISSION PRIOR TO THE ACT. IN THE DECISION OF MARCH 15, 1943, B-31909, 22 COMP. GEN. 895, IT WAS HELD, QUOTING FROM THE SYLLABUS, THAT:

WHERE A STATUTE OR REGULATION PROVIDES THAT THE HEAD OF A DEPARTMENT OR ESTABLISHMENT MAY AUTHORIZE AN ACT OR THE INCURRING OF AN EXPENDITURE, THE AUTHORIZATION MUST BE GIVEN IN ADVANCE, BUT WHERE THE STATUTE OR REGULATION PROVIDES THAT AN ACT OR AN EXPENDITURE MAY BE EITHER AUTHORIZED OR APPROVED, THE AUTHORIZATION MAY EITHER BE GIVEN IN ADVANCE OR APPROVED AFTER THE FACT.

SEE, ALSO, 21 COMP. GEN. 921 AND 745 WHICH WERE CITED IN YOUR LETTER.

ACCORDINGLY, IT APPEARS THAT APPROVAL BY THE SECRETARY OF THE NAVY OR THE UNDER SECRETARY OF THE NAVY AT THIS TIME OF REQUESTS FOR PAYMENT UNDER THE CONTRACTS OR AGREEMENTS HERE IN QUESTION WOULD MEET THE REQUIREMENTS OF SECTION 610 OF THE CITED APPROPRIATION ACT AND PERMIT PAYMENTS TO BE LEGALLY MADE UNDER SUCH CONTRACTS OR AGREEMENTS. HOWEVER, THIS OFFICE FEELS THAT THE SPIRIT AND INTENT OF THE STATUTE OBVIOUSLY WOULD BE MORE COMPLETELY FULFILLED BY THE APPROVAL OF SUCH EXPENSES IN ADVANCE. ALSO, SUCH ADVANCE APPROVAL CLEARLY WOULD BE A BETTER ADMINISTRATIVE PRACTICE AS NOW REQUIRED BY THE INSTRUCTIONS ISSUED BY YOUR DEPARTMENT UNDER DATE OF JANUARY 3, 1952.

WITH RESPECT TO YOUR QUESTION CONCERNING THE APPROPRIATION CHARGEABLE WITH THESE EXPENSES, IT IS CLEAR THAT APPROVAL OF THESE CONTRACTS OR AGREEMENTS AT THIS TIME WOULD RENDER THEM VALID AND BINDING FROM THEIR EXECUTION AND, HENCE, THE APPROPRIATIONS AVAILABLE FOR SUCH CONTRACTS OR AGREEMENTS AT THE TIME THEY WERE ENTERED INTO ARE PROPERLY CHARGEABLE WITH THE EXPENSES INCURRED THEREUNDER.