B-129881, FEBRUARY 4, 1957, 36 COMP. GEN. 561

B-129881: Feb 4, 1957

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GOVERNMENT RESEARCH FACILITIES - USE BY GRADUATE AND FACULTY SCIENTISTS NATIONAL BUREAU OF STANDARDS COOPERATIVE PROGRAM THE USE OF RESEARCH FACILITIES OF THE NATIONAL BUREAU OF STANDARDS BY GRADUATE AND FACULTY SCIENTISTS OF RECOGNIZED INSTITUTIONS OF HIGHER LEARNING IS PERMISSIBLE UNDER AUTHORITY OF THE ACT OF MARCH 3. PROVIDED CONDITIONS PROTECTING THE GOVERNMENT'S RIGHTS AND LIMITING ITS LIABILITY ARE OBSERVED UNDER THE COOPERATIVE PROGRAM. IT IS STATED THAT THE NATIONAL BUREAU OF STANDARDS IS CONTEMPLATING THE ESTABLISHMENT OF A COOPERATIVE PROGRAM WHEREUNDER FACULTY AND GRADUATE STUDENT SCIENTISTS FROM RECOGNIZED UNIVERSITIES WILL BE PERMITTED TO UNDERTAKE UNIVERSITY-DIRECTED EXPERIMENTAL RESEARCH STUDIES IN BUREAU LABORATORIES.

B-129881, FEBRUARY 4, 1957, 36 COMP. GEN. 561

GOVERNMENT RESEARCH FACILITIES - USE BY GRADUATE AND FACULTY SCIENTISTS NATIONAL BUREAU OF STANDARDS COOPERATIVE PROGRAM THE USE OF RESEARCH FACILITIES OF THE NATIONAL BUREAU OF STANDARDS BY GRADUATE AND FACULTY SCIENTISTS OF RECOGNIZED INSTITUTIONS OF HIGHER LEARNING IS PERMISSIBLE UNDER AUTHORITY OF THE ACT OF MARCH 3, 1901, 20 U.S.C. 91, WHICH MAKES FACILITIES FOR RESEARCH IN GOVERNMENT DEPARTMENTS ACCESSIBLE TO SCIENTIFIC INVESTIGATORS, STUDENTS AND GRADUATES OF INSTITUTIONS OF LEARNING, PROVIDED CONDITIONS PROTECTING THE GOVERNMENT'S RIGHTS AND LIMITING ITS LIABILITY ARE OBSERVED UNDER THE COOPERATIVE PROGRAM.

TO THE SECRETARY OF COMMERCE, FEBRUARY 4, 1957:

LETTER DATED NOVEMBER 23, 1956, FROM THE ASSISTANT SECRETARY OF COMMERCE FOR ADMINISTRATION, REQUESTS OUR ADVICE AS TO WHETHER THE BUREAU OF STANDARDS MAY PERMIT THE LIMITED USE OF ITS FACILITIES BY FACULTY AND GRADUATE STUDENT SCIENTISTS OF RECOGNIZED UNIVERSITIES UNDER CERTAIN SPECIFIED CONDITIONS.

IT IS STATED THAT THE NATIONAL BUREAU OF STANDARDS IS CONTEMPLATING THE ESTABLISHMENT OF A COOPERATIVE PROGRAM WHEREUNDER FACULTY AND GRADUATE STUDENT SCIENTISTS FROM RECOGNIZED UNIVERSITIES WILL BE PERMITTED TO UNDERTAKE UNIVERSITY-DIRECTED EXPERIMENTAL RESEARCH STUDIES IN BUREAU LABORATORIES, USING BUREAU EQUIPMENT AND FACILITIES, AT SUCH TIMES AS SUCH STUDIES WILL NOT INTERFERE WITH BUREAU ACTIVITIES AND THE BUREAU FACILITIES REQUIRED ARE NOT IN USE. SUCH PERMISSION IS TO BE GRANTED UPON THE FOLLOWING CONDITIONS: (1) THE BUREAU WILL PAY NO SALARY COSTS FOR THE WORK; (2) THE BUREAU WILL NOT BE RESPONSIBLE FOR THE SCIENTIFIC SUPERVISION OF THE WORK, NOR FOR THE COST OF SUCH SUPERVISION, SUCH COST AND SUPERVISION TO BE BORNE BY THE SPONSORING ORGANIZATION; (3) THE GOVERNMENT WILL NOT BE LIABLE FOR INJURY AND THE LIKE, SUCH LIABILITY TO BE BORNE BY THE SPONSORING ORGANIZATIONS; (4) THERE ARE PROPER SAFEGUARDS FOR GOVERNMENT PROPERTY; (5) THE PROPOSED STUDY DOES NOT INTERFERE WITH REGULAR GOVERNMENT ACTIVITIES; (6) THE BUREAU WILL PAY NO DIRECT COSTS FOR THE SUPPORT OF THE STUDY, OTHER THAN THE PROVISION OF SPACE, FACILITIES, AND ADMINISTRATIVE COSTS RELATED TO SUCH USE; (7) THE STUDY HAS A GENERAL VALUE TO THE WORK OF THE NATIONAL BUREAU OF STANDARDS; AND (8) THE RESULTS OF SUCH STUDY ARE MADE PART OF THE PUBLIC DOMAIN.

THE LETTER STATES FURTHER THAN SUCH A COOPERATIVE PROGRAM WOULD BE OF CONSIDERABLE VALUE TO THE GOVERNMENT AND TO THE BUREAU BY ESTABLISHING BENEFICIAL CONTACT BETWEEN THE BUREAU SCIENTISTS, THE UNIVERSITIES, THEIR FACULTIES AND STUDENTS; INCREASING THE SCIENTIFIC EDUCATIONAL POTENTIAL OF THE AREA AND THE NATION; THUS CONTRIBUTING TO THE RESOLUTION OF THE PROBLEM OF TRAINING AND INCREASING THE NATION'S SHORT SUPPLY OF SCIENTISTS; CREATING A FULLER AWARENESS AMONG YOUNG SCIENTISTS OF THE IMPORTANCE OF GOVERNMENT SCIENCE, THEREBY ENHANCING THE SCIENTIFIC RECRUITMENT POSSIBILITIES FOR GOVERNMENT AGENCIES; AND PROVIDING MAXIMUM UTILIZATION OF BUREAU EQUIPMENT WITHOUT EXPANSION OF SPACE OR FACILITIES.

SECTIONS 273 AND 278C OF TITLE 15 OF THE U.S.C. ARE CITED IN THE LETTER AS FURNISHING AUTHORITY FOR THE PROPOSED PROGRAM. HOWEVER, SECTION 273 MERELY STATES FOR WHOM THE BUREAU MAY EXERCISE ITS FUNCTIONS AND APPARENTLY CONTEMPLATES THE PERFORMANCE OF SUCH FUNCTIONS BY ITS OWN PERSONNEL. SECTION 278C AUTHORIZES THE ACCEPTANCE AND UTILIZATION OF GIFTS OF REAL OR PERSONAL PROPERTY ONLY AND DOES NOT APPEAR PERTINENT TO THE PROPOSED PROGRAM.

ALSO CITED IN THE LETTER OF NOVEMBER 23 IS SECTION 91 OF TITLE 20 OF THE U.S.C. WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

THE FACILITIES FOR STUDY RESEARCH AND ILLUSTRATION IN THE GOVERNMENT DEPARTMENTS AND IN THE FOLLOWING AND ANY OTHER GOVERNMENTAL COLLECTIONS NOW EXISTING OR HEREAFTER TO BE ESTABLISHED IN THE CITY OF WASHINGTON FOR THE PROMOTION OF KNOWLEDGE SHALL BE ACCESSIBLE, UNDER SUCH RULES AND RESTRICTIONS AS THE OFFICERS IN CHARGE OF EACH DEPARTMENT OR COLLECTION MAY PRESCRIBE, SUBJECT TO SUCH AUTHORITY AS IS NOW OR MAY HEREAFTER BE PERMITTED BY LAW, TO THE SCIENTIFIC INVESTIGATORS AND TO DULY QUALIFIED INDIVIDUALS, STUDENTS AND GRADUATES OF ANY INSTITUTION OF LEARNING IN THE SEVERAL STATES AND TERRITORIES AND THE DISTRICT OF COLUMBIA, * * *.

THE PORTION NOT QUOTED CONSISTS OF A LISTING OF AGENCIES HAVING LITERARY AND SCIENTIFIC COLLECTIONS AND, WHILE THE BUREAU IS NOT INCLUDED IN SUCH LIST, IT IS A PART OF A GOVERNMENT DEPARTMENT AND HENCE WOULD APPEAR TO BE COVERED BY THE SECTION. IT IS NOTED THAT THIS SECTION SPECIFIES "FACILITIES FOR STUDY RESEARCH," WHICH WORDING, IN CONJUNCTION WITH THE REFERENCE TO ,COLLECTIONS," MIGHT BE CONSTRUED TO MEAN ONLY SUCH RESEARCH AS MAY BE MADE IN A LIBRARY OR BY STUDYING ALREADY COLLECTED KNOWLEDGE, RATHER THAN TO PERMIT ENGAGING IN ORIGINAL RESEARCH TO DISCOVER NEW KNOWLEDGE. HOWEVER, THIS PORTION OF THE U.S.C. IS NOT POSITIVE LAW AND REFERENCE MUST BE MADE TO THE ORIGINAL STATUTES AS ENACTED BY THE CONGRESS TO DETERMINE THE ACTUAL LAW. SECTION 91 WAS CODIFIED FROM TWO BASIC STATUTES, THE JOINT RESOLUTION OF APRIL 12, 1892, 27 STAT. 395, JT. RES. NO. 8, AND THE ACT OF MARCH 3, 1901, 31 STAT. 1039. THE FORMER, AFTER A PREAMBLE RECITING THAT BY THE ACTION OF CONGRESS LARGE LITERARY AND SCIENTIFIC COLLECTIONS HAVE BEEN ACCUMULATED IN VARIOUS GOVERNMENT AGENCIES AT THE NATIONAL CAPITAL, PROVIDES---

THAT THE FACILITIES FOR RESEARCH AND ILLUSTRATION IN THE FOLLOWING AND ANY OTHER GOVERNMENTAL COLLECTIONS NOW EXISTING OR HEREAFTER TO BE ESTABLISHED IN THE CITY OF WASHINGTON FOR THE PROMOTION OF KNOWLEDGE SHALL BE ACCESSIBLE, UNDER SUCH RULES AND RESTRICTIONS AS THE OFFICERS IN CHARGE OF EACH COLLECTION MAY PRESCRIBE, SUBJECT TO SUCH AUTHORITY AS IS NOW OR MAY HEREAFTER BE PERMITTED BY LAW, TO THE SCIENTIFIC INVESTIGATORS AND TO STUDENTS OF ANY INSTITUTION OF HIGHER EDUCATION NOW INCORPORATED OR HEREAFTER TO BE INCORPORATED UNDER THE LAWS OF CONGRESS OR OF THE DISTRICT OF COLUMBIA, * * *.

AND LISTS THE AGENCIES POSSESSING SUCH COLLECTIONS. THIS STATUTE CLEARLY CONTEMPLATES ONLY THAT TYPE OF STUDY RESEARCH REFERRED TO ABOVE. THE LATTER STATUTE, 31 STAT. 1039, MAKES NO REFERENCE TO EITHER COLLECTIONS OR THE EARLIER STATUTE, AND PROVIDES---

THAT FACILITIES FOR STUDY AND RESEARCH IN THE GOVERNMENT DEPARTMENTS, THE LIBRARY OF CONGRESS, THE NATIONAL MUSEUM, THE ZOOLOGICAL PARK, THE BUREAU OF ETHNOLOGY, THE FISH COMMISSION, THE BOTANIC GARDENS, AND SIMILAR INSTITUTIONS HEREAFTER ESTABLISHED SHALL BE AFFORDED TO SCIENTIFIC INVESTIGATORS AND TO DULY QUALIFIED INDIVIDUALS, STUDENTS, AND GRADUATES OF INSTITUTIONS OF LEARNING IN THE SEVERAL STATES AND TERRITORIES, AS WELL AS IN THE DISTRICT OF COLUMBIA, UNDER SUCH RULES AND RESTRICTIONS AS THE HEADS OF THE DEPARTMENTS AND BUREAUS MENTIONED MAY PRESCRIBE.

SINCE THIS STATUTE LIST STUDY AND RESEARCH AS TWO SEPARATE ITEMS AND IS NOT RESTRICTED TO ACCUMULATED COLLECTIONS OF SCIENTIFIC OR LITERARY KNOWLEDGE, THE AUTHORITY CONTAINED THEREIN TO RENDER GOVERNMENT RESEARCH FACILITIES AVAILABLE TO SCIENTIFIC INVESTIGATORS AND TO DULY QUALIFIED INDIVIDUALS, STUDENTS AND GRADUATES OF INSTITUTIONS OF LEARNING READILY IS CONSTRUABLE AS COVERING ORIGINAL RESEARCH SUCH AS IS CONTEMPLATED UNDER THE PROPOSED PROGRAM. EVEN IF SUCH APPLICATION OF THIS STATUTE WAS NOT CONTEMPLATED BY THE CONGRESS WHEN IT WAS ENACTED, THE COURTS HAVE HELD IN INTERPRETING STATUTES THAT IF THE LANGUAGE OF A STATUTE IS SUCH AS TO BRING A CERTAIN SITUATION WITHIN IT, IT IS UNIMPORTANT THAT THE PARTICULAR APPLICATION MAY NOT HAVE BEEN CONTEMPLATED BY THE LEGISLATORS. SEE BARR V. UNITED STATES, 324 U.S. 83; AND DELANY V. MORAITIS, 136 F.2D 129.

MOREOVER, EVEN IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, A NUMBER OF DECISIONS, BOTH OF OUR OFFICE AND OF THE ATTORNEY GENERAL HAVE HELD THAT THE HEAD OF A GOVERNMENT DEPARTMENT HAS AUTHORITY TO GRANT TO INDIVIDUALS OR ORGANIZATIONS REVOCABLE LICENSES TO USE GOVERNMENT PROPERTY FOR VARIOUS PURPOSES WHERE SUCH PURPOSES WHERE DEEMED TO BENEFIT THE GOVERNMENT. THOSE DECISIONS HELD THAT THE GRANTING OF SUCH A LICENSE WAS NOT AN ALIENATION OF TITLE, OWNERSHIP, OR CONTROL OF GOVERNMENT PROPERTY AND DID NOT CONSTITUTE A DISPOSAL OF GOVERNMENT PROPERTY IN VIOLATION OF THE CONSTITUTIONAL PROHIBITION. IN 22 COMP. GEN. 563 IT WAS HELD, QUOTING FROM THE SYLLABUS THAT---

A CONTRACT BY THE FEDERAL COMMUNICATIONS COMMISSION, GRANTING AN INDIVIDUAL A REVOCABLE LICENSE OR PERMIT--- AS DISTINGUISHED FROM A VESTED PROPERTY RIGHT--- TO CULTIVATE GOVERNMENT-OWNED LAND UNDER THE COMMISSION'S CONTROL FOR THE PURPOSE OF ELIMINATING OR REDUCING FIRE AND WIND HAZARDS TO RADIO MONITORING STATIONS LOCATED ON THE LAND, IS NOT IN DEROGATION OF ARTICLE IV, SECTION 3, CLAUSE 2 OF THE CONSTITUTION OF THE UNITED STATES, RESERVING TO THE CONGRESS THE POWER TO DISPOSE OF FEDERAL PROPERTY, AND, THEREFORE, THERE IS NO LEGAL OBJECTION TO THE EXECUTION OF SUCH A CONTRACT.

SEE B-57383, JUNE 28, 1946, (25 COMP. GEN. 909), AND FEBRUARY 25, 1947, RELATIVE TO ALLOWING A MANUFACTURER OF GLOBE MAPS TO USE CERTAIN GOVERNMENT-OWNED DRAWINGS IN THE PRODUCTION OF GLOBES, AND B-41654, MAY 19, 1944, CONCERNING THE USE BY FLIGHT INSTRUCTION CONTRACTORS OF GOVERNMENT-OWNED AIRPLANES FOR TRAINING PILOTS. SEE ALSO, THE NUMEROUS DECISIONS, OPINIONS OF THE ATTORNEY GENERAL AND COURT CASES CITED AND DISCUSSED IN THE REFERRED-TO DECISIONS. THE CONDITIONS PROPOSED TO BE IMPOSED IN CONNECTION WITH PERMISSION TO USE THE BUREAU'S FACILITIES APPEAR TO CONFORM TO THE PRINCIPLES SET OUT IN THE ABOVE DECISIONS.

ACCORDINGLY, IT APPEARS THAT AUTHORITY EXISTS FOR THE BUREAU TO PERMIT LIMITED USE OF ITS RESEARCH SPACE AND FACILITIES BY GRADUATE AND FACULTY SCIENTISTS OF RECOGNIZED INSTITUTIONS OF HIGHER LEARNING ON CONDITIONS SUBSTANTIALLY AS PROPOSED IN THE LETTER OF NOVEMBER 23, 1956.