B-115925, AUGUST 6, 1953, 33 COMP. GEN. 68

B-115925: Aug 6, 1953

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THE DISPOSITION AND USE OF SUCH PROCEEDS OF SALE ARE SUBJECT TO THE PROVISIONS OF SECTION 201 (C) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949. 1953: REFERENCE IS MADE TO LETTER OF JUNE 24. PRESENTING FOR DECISION THE QUESTION OF WHETHER THE DISPOSITION AND USE OF THE PROCEEDS OF SALE OF FURNISHINGS AND APPURTENANCES OF FOREIGN SERVICE BUILDINGS ACQUIRED FOR THE USE OF DIPLOMATIC AND CONSULAR ESTABLISHMENTS IN FOREIGN COUNTRIES ARE GOVERNED BY THE PROVISIONS OF SECTION 201 (C) OF THE FEDERAL PROPERTY. IT IS ASSUMED THAT ALL OF THE "FURNISHINGS AND APPURTENANCES" INVOLVED ARE PERSONAL PROPERTY. THERE IS NO DOUBT THAT THE SALE AND USE OF THE PROCEEDS THEREOF ARE AUTHORIZED AND GOVERNED BY THE PROVISIONS OF SECTION 201 (C) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 UNLESS SUCH SALE AND THE USE OF THE PROCEEDS THEREOF ARE SPECIFICALLY AUTHORIZED BY THE FOREIGN SERVICE BUILDINGS ACT.

B-115925, AUGUST 6, 1953, 33 COMP. GEN. 68

SALES - PUBLIC PROPERTY IN FOREIGN COUNTRIES THE FOREIGN SERVICE BUILDINGS ACT OF 1926, AS AMENDED, DOES NOT AUTHORIZE THE DISPOSITION OR USE OF THE PROCEEDS OF SALE OF FURNISHINGS AND APPURTENANCES (PERSONAL PROPERTY AS DISTINGUISHED FROM REAL PROPERTY) OF FOREIGN SERVICE BUILDINGS ACQUIRED FOR THE USE OF DIPLOMATIC AND CONSULAR ESTABLISHMENTS IN FOREIGN COUNTRIES, AND THE DISPOSITION AND USE OF SUCH PROCEEDS OF SALE ARE SUBJECT TO THE PROVISIONS OF SECTION 201 (C) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, THE REGULATIONS OF THE ADMINISTRATOR OF GENERAL SERVICES ADMINISTRATION, AND ACCOUNTING SYSTEMS MEMORANDUM NO. 23--- REVISED, OF JUNE 19, 1953.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, AUGUST 6, 1953:

REFERENCE IS MADE TO LETTER OF JUNE 24, 1953, FROM THE ASSISTANT SECRETARY OF STATE, PRESENTING FOR DECISION THE QUESTION OF WHETHER THE DISPOSITION AND USE OF THE PROCEEDS OF SALE OF FURNISHINGS AND APPURTENANCES OF FOREIGN SERVICE BUILDINGS ACQUIRED FOR THE USE OF DIPLOMATIC AND CONSULAR ESTABLISHMENTS IN FOREIGN COUNTRIES ARE GOVERNED BY THE PROVISIONS OF SECTION 201 (C) OF THE FEDERAL PROPERTY, AND ADMINISTRATIVE SERVICES ACT OF 1949, PUBLIC LAW 152, APPROVED JUNE 30, 1949, 63 STAT. 383, OR BY THE FOREIGN SERVICE BUILDINGS ACT, 1926, AS AMENDED, 22 U.S.C. 292-300.

FROM THE MANNER OF PRESENTATION, IT IS ASSUMED THAT ALL OF THE "FURNISHINGS AND APPURTENANCES" INVOLVED ARE PERSONAL PROPERTY, AS DISTINGUISHED FROM REAL PROPERTY. THAT BEING SO, THERE IS NO DOUBT THAT THE SALE AND USE OF THE PROCEEDS THEREOF ARE AUTHORIZED AND GOVERNED BY THE PROVISIONS OF SECTION 201 (C) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 UNLESS SUCH SALE AND THE USE OF THE PROCEEDS THEREOF ARE SPECIFICALLY AUTHORIZED BY THE FOREIGN SERVICE BUILDINGS ACT, AS AMENDED. AS INDICATED IN YOUR LETTER, IF THE FOREIGN SERVICE BUILDINGS ACT, 1926, IS APPLICABLE, THE PROCEEDS OF SALE MAY BE CREDITED TO THE FOREIGN SERVICE BUILDINGS FUND AND BE USED, WITHOUT FISCAL YEAR LIMITATION, FOR ANY PURPOSE FOR WHICH THAT FUND IS AVAILABLE. ON THE OTHER HAND, IF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 377, IS CONTROLLING, THE PROCEEDS OF THE SALES MAY BE CREDITED TO THE FOREIGN SERVICE BUILDINGS FUND IF OBLIGATED FOR SIMILAR REPLACEMENT ITEMS, OTHERWISE TO THE APPROPRIATE DEPOSIT FUND ACCOUNT; MAY BE USED ONLY FOR THE ACQUISITION OF "SIMILAR" ITEMS; AND REMAIN AVAILABLE FOR ONLY ONE FISCAL YEAR FOLLOWING THE FISCAL YEAR IN WHICH THE SALE IS MADE. SEE ACCOUNTING SYSTEMS MEMORANDUM NO. 23--- REVISED, DATED JUNE 19, 1953.

SECTION 9 OF THE FOREIGN SERVICE BUILDINGS ACT, 1926, AS ADDED BY THE ACT OF APRIL 19, 1945, PUBLIC LAW 33, 59 STAT. 53, PROVIDES AS FOLLOWS:

9. THE SECRETARY OF STATE, WHEN HE FINDS IT TO BE IN THE INTEREST OF THE GOVERNMENT, WITH THE CONCURRENCE OF THE FOREIGN SERVICE BUILDINGS COMMISSION, IS AUTHORIZED TO SELL BUILDINGS AND GROUNDS ACQUIRED FOR THE USE OF DIPLOMATIC AND CONSULAR ESTABLISHMENTS IN FOREIGN COUNTRIES, AND NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, THE PROCEEDS OF SUCH SALES MAY BE APPLIED TOWARD THE PURCHASE AND CONSTRUCTION, FURNISHING, AND PRESERVATION OF OTHER PROPERTIES, OR HELD IN THE FOREIGN SERVICE BUILDING FUND, AS IN THE JUDGMENT OF THE COMMISSION MAY BEST SERVE THE GOVERNMENT'S INTEREST: PROVIDED, HOWEVER, THAT THE SECRETARY OF STATE SHALL REPORT ALL SUCH TRANSACTIONS ANNUALLY TO THE CONGRESS WITH THE BUDGET ESTIMATES OF THE DEPARTMENT OF STATE.

THE PURPOSE OF THIS SECTION 9 WAS EXPLAINED IN HOUSE REPORT NO. 49, 79TH CONGRESS, ACCOMPANYING H.R. 685, ENACTED AS THE SAID AMENDATORY ACT OF APRIL 19, 1945, AS FOLLOWS:

THE LEGISLATION PROPOSED WOULD PERMIT THE DEPARTMENT TO MAKE A CASH SALE AND USE THE PROCEEDS FOR DIRECT PURCHASES. IT ACTUALLY INVOLVES ONLY A MEANS OF IMPLEMENTING THE PRESENT EXCHANGE LAW TO OVERCOME PRACTICAL DIFFICULTIES OF OPERATION. THE DISPOSAL OF PROPERTY BY CASH SALE AND RETURN OF THE PROCEEDS TO THE GENERAL RECEIPTS OF THE TREASURY, AND THE APPROPRIATION BY CONGRESS OF NEW MONEY TO PERMIT OF THE PURCHASE OF OTHER PROPERTY MORE SUITABLE FOR CONSULAR AND DIPLOMATIC ESTABLISHMENTS AS AN ALTERNATIVE PROPOSAL, WOULD NOT AFFORD AS PRACTICAL A PROCEDURE AS WOULD ENACTMENT OF THE BILL SUGGESTED, THE TIME NECESSARY TO OBTAIN ADEQUATE FUNDS THROUGH RESORT TO THE APPROPRIATION PROCEDURE WOULD NOT PERMIT OF MAKING DEFINITE COMMITMENTS SO OFTEN NECESSARY TO CONCLUDE ALTOGETHER SATISFACTORY REAL-ESTATE TRANSACTIONS.

THIS PROVISION OF LAW AUTHORIZED THE SECRETARY OF STATE TO SELL ONLY "BUILDINGS AND GROUNDS ACQUIRED FOR THE USE OF DIPLOMATIC AND CONSULAR ESTABLISHMENTS IN FOREIGN COUNTRIES.' IT IS A WELL-KNOWN RULE OF STATUTORY CONSTRUCTION THAT WORDS IN A STATUTE ARE UNIFORMLY PRESUMED, UNLESS THE CONTRARY APPEARS, TO BE USED IN THEIR ORDINARY AND USUAL SENSE AND WITH THE MEANING COMMONLY ATTRIBUTED TO THEM. THE LEGISLATIVE HISTORY OF THIS ACT DOES NOT INDICATE IN ANY RESPECT THAT THE TERM "BUILDINGS AND GROUNDS" WAS USED IN OTHER THAN ITS COMMON ORDINARY MEANING, THAT IS, REAL PROPERTY AS DISTINGUISHED FROM PERSONAL PROPERTY AND IN FACT, THE BUILDINGS AND GROUNDS ARE FREQUENTLY REFERRED TO IN THE LEGISLATIVE HISTORY AS REAL ESTATE. UNDER SUCH CIRCUMSTANCES, THERE IS NO BASIS TO DEVIATE FROM THE APPLICATION OF THE ABOVE STATED RULE OF STATUTORY CONSTRUCTION.

THE FACT THAT THE PROCEEDS FROM THE SALE OF THE "BUILDINGS AND GROUNDS" COULD BE USED TO PURCHASE FURNISHINGS OR THE FACT THAT THE FOREIGN SERVICE BUILDINGS ACT, 1926, WAS AMENDED BY THE ACT OF JUNE 19, 1952, PUBLIC LAW 399, 66 STAT. 140, TO PERMIT ALL FURNISHINGS FOR SUCH FOREIGN SERVICE BUILDINGS TO BE PURCHASED FROM THE FOREIGN SERVICE BUILDINGS FUND IN NO WAY AUTHORIZES EITHER THE SALE OF FURNISHINGS OR THE USE OF THE PROCEEDS THEREOF.

ACCORDINGLY, THE GENERAL ACCOUNTING OFFICE HAS NO ALTERNATIVE BUT TO CONCLUDE THAT THE FOREIGN SERVICE BUILDINGS ACT, 1926, AS AMENDED, DOES NOT AUTHORIZE THE SALE OR USE OF THE PROCEEDS OF SALE OF "FURNISHINGS AND APPURTENANCES OF FOREIGN SERVICE BUILDINGS AND GROUNDS" REFERRED TO IN YOUR SUBMISSION. HENCE, AS INDICATED ABOVE, THE USE OF SUCH PROCEEDS OF SALE IS SUBJECT TO THE PROVISIONS OF SECTION 201 (C) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, THE REGULATIONS OF THE ADMINISTRATOR OF GENERAL SERVICE ADMINISTRATION ISSUED THEREUNDER, AND ACCOUNTING SYSTEMS MEMORANDUM NO. 23--- REVISED, DATED JUNE 19, 1953.