B-131418, MAY 28, 1957

B-131418, MAY 28, 1957

TO MR. C. D. BEAN, COMMISSIONER:

YOUR LETTER DATED APRIL 29, 1957, REQUESTS RECONSIDERATION OF OUR DECISION OF APRIL 19, 1957, B-131418, 36 COMP. GEN. - , WHICH HOLDS THAT THE COST OF CERTAIN HIGH POWERED EQUIPMENT ON PASSENGER MOTOR VEHICLES USED IN POLICE WORK IS REQUIRED TO BE INCLUDED WITHIN THE STATUTORY PURCHASE PRICE LIMITATION SET OUT IN 5 U.S.C. 78 (C) (1) AND THE GENERAL GOVERNMENT MATTERS APPROPRIATION ACT, 1957, PUBLIC LAW 578, APPROVED JUNE 13, 1956, 70 STAT. 279, 5 U.S.C. SUPP. IV 78A-1.

THAT DECISION IS PREMISED ON THE CONCLUSIONS THAT THE HIGH POWERED EQUIPMENT ORDINARILY BECOMES A PERMANENT PART OF THE VEHICLE AND IS ESSENTIAL TO THE COMFORT AND CONVENIENCE OF THE PASSENGERS AND THE EFFICIENT OPERATION OF THE VEHICLE. HOWEVER, YOUR LETTER REQUESTING RECONSIDERATION SAYS THAT A SIX CYLINDER ENGINE WOULD OPERATE A VEHICLE FOR ALMOST ALL PURPOSES AS EFFICIENTLY AS AN EIGHT CYLINDER ENGINE. YOU SUBMIT FURTHER THAT THE DIFFERENCE BETWEEN THE TWO TYPES OF ENGINES IS NO WAY ESSENTIAL TO THE EFFICIENT OPERATION OF THE VEHICLE, BUT IS ESSENTIAL TO THE SPEEDY TAKE-OFF AND ABILITY TO OVERTAKE ANOTHER FLEEING VEHICLE. THIS IS SUGGESTED AS A JUSTIFICATION FOR CONSIDERING THE EIGHT CYLINDER ENGINE AND OTHER HIGH POWERED EQUIPMENT AS OUTSIDE THE LONG ESTABLISHED "COMFORT-CONVENIENCE EFFICIENT OPERATION" RULE REFERRED TO IN OUR PRIOR DECISION.

ON APRIL 29, 1957, AT A CONFERENCE AMONG REPRESENTATIVES OF THE GENERAL SERVICES ADMINISTRATION, INTERNAL REVENUE SERVICE, FEDERAL BUREAU OF INVESTIGATION, DEPARTMENT OF JUSTICE AND OUR OFFICE, IT WAS SUGGESTED THAT THE "PASSENGER MOTOR VEHICLE" ON WHICH THE CONGRESS INTENDED TO IMPOSE THE PURCHASE PRICE LIMITATION IS A VEHICLE WHOSE MAIN PURPOSE IS TO CARRY PASSENGERS FROM ONE PLACE TO ANOTHER RATHER THAN A POLICE VEHICLE WHOSE MAIN PURPOSE IS TO PURSUE AND OVERTAKE CRIMINALS AND VEHICLES IN ILLEGAL OPERATION, JUST AS A WEAPON MIGHT BE USED TO RESTRAIN A CRIMINAL ACT.

ON MAY 14, 1957, AT A SECOND CONFERENCE IN THE MATTER BETWEEN REPRESENTATIVES OF THE GENERAL SERVICES ADMINISTRATION AND OUR OFFICE, REFERENCE WAS MADE TO THE TESTIMONY OF JOHN B. HANSON, THE DIRECTOR OF THE MOTOR VEHICLES DIVISION OF THE GENERAL SERVICES ADMINISTRATION, AT HEARINGS BEFORE THE SENATE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS ON H.R. 6499, 84TH CONGRESS, WHICH BECAME THE GENERAL GOVERNMENT MATTERS APPROPRIATION ACT, 1956, 69 STAT. 192. MR. HANSON TESTIFIED ON JUNE 14, 1955, IN CONNECTION WITH THE LANGUAGE ON THE DOLLAR LIMITATION FOR THE PROCUREMENT OF AUTOMOBILES AND STATION WAGONS. THE COLLOQUY ON THE LIMITATION, PRINTED ON PAGES 9 AND 10 OF THE SENATE HEARINGS ON H.R. 6499, IS AS FOLLOWS:

"MR. HANSON. $1,350 WE THINK IS SUFFICIENT AT THIS TIME FOR PASSENGER CARS, ALTHOUGH AS A RESULT OF THE RECENT LABOR AGREEMENTS IT MAY BE INSUFFICIENT BEFORE THE YEAR IS OVER---

"SENATOR SALTONSTALL. SO YOU WOULD WANT THIS BILL TO READ $1,350 FOR A PASSENGER VEHICLE AND $1,850 FOR A STATION WAGON?

"MR. HANSON. YES, SIR.

"SENATOR MAGNUSON. WHAT ABOUT WHERE YOU NEED A VEHICLE ON WHICH YOU PUT SOME EXTRAS NOT FOR THE PURPOSE OF PUTTING IN SOME COMFORTS AND CONVENIENCES, BUT BECAUSE THEY ARE NEEDED IN CERTAIN TYPES OF WORK, HOW ARE YOU GOING TO GET BY WITH THAT LIMITATION?

"MR. HANSON. IF AN AGENCY HAS A NEED FOR A VEHICLE WHICH WILL REQUIRE THAT TYPE OF EXTRAS, THAT AGENCY WOULD JUSTIFY THE REQUIREMENT IN ITS BUDGET BEFORE THE APPROPRIATION COMMITTEES AND ASK FOR NECESSARY MONEY FOR THAT TYPE OF VEHICLE.

"SENATOR MAGNUSON. I AM THINKING OF VEHICLES IN THE FOREST SERVICE WHERE THEY NEED MORE GEAR, MORE SPACE. SO THAT YOU DO NOT NEED THAT AMENDMENT. THAT AMENDMENT HAS BEEN SUGGESTED TO ME THAT THAT SHOULD NOT BE INCLUDED, IT SAYS:

"THE AMOUNT CHARGED BY THE CONTRACTOR FOR THE GOVERNMENT FOR THE SPECIAL FEATURE OR EQUIPMENT ON THE VEHICLE WHICH IS NOT REQUIRED FOR THE CONVENIENCE OF THE OPERATOR NEED NOT BE INCLUDED IN SAID MAXIMUM AMOUNT.'

"WOULD THAT LANGUAGE AID YOU IN ANY RESPECT?

"MR. HANSON. THAT WOULD AID PARTICULARLY WITH RESPECT TO CERTAIN USED FOR WHICH WE HAVE TO BUY CARS WITH SPECIAL EQUIPMENT SUCH AS FOR POLICE WORK.

"SENATOR MAGNUSON. THEN IT HAS BEEN SUGGESTED THAT WE INCORPORATE IN THE REPORT ADDITIONAL LANGUAGE HAS BEEN ADDED SO AS TO MAKE CLEAR THAT THE AMOUNT SO ESTABLISHED DOES NOT INCLUDE THE AMOUNT OF THE MANUFACTURER'S REGULARLY ESTABLISHED CHARGE TO THE PUBLIC FOR TRANSPORTATION AND DELIVERY OF THE VEHICLE OR THE COST OF ANY SPECIAL FEATURE OR EQUIPMENT NOT REQUIRED FOR THE CONVENIENCE OF THE PASSENGERS TO CARRY OUT OFFICIAL DUTIES. IT MIGHT BE WELL TO PUT THIS IN THE REPORT RATHER THAN COVER UP THE BILL WITH LANGUAGE.

"MR. HANSON. YES, SIR.

"SENATOR MAGNUSON. WE WILL CONSIDER THAT.

"I HAVE ALSO BEEN TOLD BY THE FACTORY REPRESENTATIVES OF TWO OF THE CONCERNS THAT YOU MENTIONED, THE GENERAL MOTORS AND FORD, THAT THEY ARE A LITTLE AFRAID THAT THIS $1,350 WOULD NOT LAST VERY LONG.

"MR. HANSON. THAT IS WHAT I POINTED OUT, SIR.

"SENATOR MAGNUSON. WELL, WE WILL CONSIDER IT. IF YOU DO NEED TO COME BACK WE ARE AVAILABLE MOST OF THE TIME.'

AT THE SECOND CONFERENCE IN OUR OFFICE, THE REPRESENTATIVES OF THE GENERAL SERVICES ADMINISTRATION CONTENDED THAT SENATOR MAGNUSON'S STATEMENT CONCERNING THE SUGGESTION THAT ADDITIONAL LANGUAGE BE INCORPORATED IN THE SENATE REPORT TO MAKE "CLEAR" THAT THE LIMITATION DOES NOT INCLUDE SPECIAL EQUIPMENT INDICATES THAT THE CONGRESS ALREADY RECOGNIZED THAT THE LIMITATION IS INAPPLICABLE TO VEHICLES USED FOR LAW ENFORCEMENT WORK AND THE SUGGESTION WAS INTENDED ONLY FOR CLARIFICATION PURPOSES. AT THE SAME CONFERENCE, REFERENCE ALSO WAS MADE TO THE TESTIMONY OF L. L. DUNKLE, JR., DIRECTOR OF NATIONAL BUYING, GENERAL SERVICES ADMINISTRATION, AND MR. HANSON AT HEARINGS ON GENERAL GOVERNMENT MATTERS APPROPRIATIONS, 1958, BEFORE THE HOUSE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS. THE COLLOQUY AT THESE HEARINGS, PRINTED ON PAGES 101 AND 102 OF THE HOUSE HEARINGS ON THE 1958 APPROPRIATION IS AS FOLLOWS:

"MR. ANDREWS: ARE THERE ANY POLICE AGENCIES, SUCH AS THE FBI OR ANY OTHER, THAT ARE NOT UNDER THIS LIMITATION TODAY?

"MR. DUNKLE. THEY ARE ALL UNDER THIS LIMITATION. THERE IS A COMPTROLLER GENERAL'S DECISION THAT PERMITS CERTAIN POLICE-TYPE ACTIVITIES TO EXCLUDE THE COST OF SPECIAL EQUIPMENT PECULIAR TO THEIR MISSION FROM THE LIMITATION.

"MR. ANDREWS. THEN THE FBI, IF THEY WANT AN EIGHT-CYLINDER AUTOMOBILE WITH AUTOMATIC TRANSMISSION, THEY CAN GET IT?

"MR. HANSON. NOT IF THE BASE PRICE, EXCLUDING RADIO, SIRENS, AND SPECIALIZED POLICE EQUIPMENT, EXCEEDS THE LIMITATION.

"MR. ANDREWS. DOES NOT THE FBI HAVE EIGHT-CYLINDER AUTOMOBILES?

"MR. HANSON. THEY HAVE SOME. RIGHT NOW I DO NOT THINK THEY COULD GET IT IN THE MARKET.

"MR. ANDREWS. HOW DID THEY GET THOSE THEY HAVE HAD IN THE PAST?

"MR. HANSON. UNTIL LAST FALL WE HAD QUITE A BIT OF LEEWAY, BUT WHEN THE NEW MODELS CAME OUT THE PRICES WENT UP ABOUT $135.

"MR. DUNKLE. I HAVE A LITTLE INFORMATION ON THAT I THINK WILL BE HELPFUL. WE HAVE BOUGHT CARS FOR THE FBI THIS YEAR. WE HAVE PAID AN AVERAGE OF $1,643.16 WITH THE ADDITIONAL EQUIPMENT THEY NEEDED AND COULD JUSTIFY, AND WHICH WAS PERMISSIBLE UNDER THE TERMS OF THE COMPTROLLER GENERAL'S DECISION. I THINK THE REFERENCE TO THE COMPTROLLER GENERAL'S DECISION IS EIGHTEENTH COMPTROLLER GENERAL DECISIONS, PAGE 120.'

IT WAS CONTENDED THAT, NOTWITHSTANDING THE STATEMENTS IN THE HEARINGS THAT EIGHT CYLINDER ENGINES CANNOT BE PURCHASED IF THE PRICE WILL CAUSE THE AUTOMOBILE PRICE TO EXCEED THE LIMITATION, MR. DUNKLE'S STATEMENT THAT FBI CARS HAD BEEN PURCHASED WITH ADDITIONAL EQUIPMENT AT AN AVERAGE PRICE OF $1,643.16 UNDER AUTHORITY OF 18 COMP. GEN. 120 WITH NO FURTHER STATEMENT OR OBJECTION MADE BY ANY MEMBER OF THE HOUSE COMMITTEE INDICATES THAT THE COMMITTEE CONSIDERED 18 COMP. GEN. 120 APPLICABLE TO PURCHASERS OF EIGHT CYLINDER ENGINES FOR LAW ENFORCEMENT VEHICLES, AS WELL AS TO PURCHASES OF RADIOS AND SIRENS USED IN POLICE WORK. IT WAS STATED FURTHER THAT SUCH HIGH POWERED SPECIAL POLICE EQUIPMENT HAS BEEN PURCHASED WITHOUT OBJECTION FOR MORE THAN EIGHTEEN YEARS AND THAT ALL THROUGH THIS PERIOD 18 COMP. GEN. 120 WAS ASSUMED TO BE AUTHORITY FOR THESE PURCHASES.

OUR VIEW IS THAT IF AN EIGHT CYLINDER ENGINE IS ESSENTIAL TO THE SPEEDY TAKE-OFF AND ALSO THE ABILITY TO OVERTAKE ANOTHER VEHICLE, IT IS ESSENTIAL TO THE EFFICIENT OPERATION OF THE VEHICLE. IF A SIX CYLINDER ENGINE DOES NOT HAVE ADEQUATE ENERGY TO PRODUCE A DESIRED RESULT, BUT AN EIGHT CYLINDER DOES HAVE ADEQUATE POWER TO ACT EFFECTUALLY AND TO PRODUCE A DESIRED EFFECT, THEN THE EIGHT CYLINDER ENGINE IS CAPABLE OF MORE EFFICIENT OPERATION FOR THE DESIRED PURPOSE THAN THE SIX CYLINDER ENGINE. THE FACT THAT THE EQUIPMENT IS HIGH POWERED INDICATES IT ACTUALLY IS PRODUCTIVE OF THE DESIRED GREATER EFFICIENCY. SUCH EIGHT CYLINDER ENGINE IS NO DOUBT AN INTEGRAL PART OF THE CAR, AND REGARDLESS OF THE PURPOSE FOR WHICH THE CAR IS USED, IT IS A PASSENGER MOTOR VEHICLE. ALSO, THE STATUTE PRECLUDES,"UNLESS OTHERWISE SPECIFICALLY PROVIDED," THE EXPENDITURE OF MORE THAN $1,350 FOR SUCH A VEHICLE COMPLETELY EQUIPPED FOR OPERATION.

REGARDING THE CONTENTION THAT THE SENATE SUBCOMMITTEE, RATHER THAN INTENDING TO "AMEND" THE PURCHASE PRICE LIMITATION, INTENDED TO MAKE "CLEAR" THAT THE LIMITATION DOES NOT INCLUDE SPECIAL EQUIPMENT FOR LAW ENFORCEMENT WORK, IT IS NOTED THAT THE SENATE AMENDED H.R. 6499 SO THAT THE SECTION RELATING TO THE STATUTORY PURCHASE LIMITATION ON PASSENGER MOTOR VEHICLES WOULD HAVE PROVIDED "THAT THE AMOUNT OF ANY CHARGE BY THE CONTRACTOR TO THE GOVERNMENT FOR ANY SPECIAL FEATURE OR EQUIPMENT ON SAID VEHICLE THAT IS NOT REQUIRED FOR THE CONVENIENCE AND COMFORT OF THE OPERATOR OR PASSENGERS BUT IS NECESSARY TO PERMIT THE OPERATOR OR PASSENGERS TO CARRY OUT THEIR OFFICIAL DUTIES NEED NOT BE INCLUDED IN SAID MAXIMUM AMOUNT.' HOWEVER, WHEN THE BILL WAS IN CONFERENCE THIS LANGUAGE WAS NOT APPROVED. ALSO, THE SPECIAL LIMITATION AS TO STATION WAGONS SIMILARLY WAS NOT ENACTED. THE 1957 APPROPRIATION ACT ENACTED ON $1,800 LIMITATION AS TO STATION WAGONS BUT THE LANGUAGE WHICH WOULD HAVE EXCEPTED FROM THE LIMITATION SPECIAL FEATURES NECESSARY TO ENABLE THE OPERATORS TO CARRY OUT THEIR OFFICIAL DUTIES WAS NEVER ENACTED INTO LAW.

IN VIEW OF THE REPRESENTATIONS MADE IN CONNECTION WITH THE 1958 HEARINGS TO THE HOUSE SUBCOMMITTEE THAT THE FBI CANNOT GET EIGHT CYLINDER ENGINES IF THE BASE PRICE OF THE EQUIPMENT EXCEEDS THE LIMITATION, WE ARE COMPELLED TO CONCLUDE THAT THE COMMITTEE UNDERSTOOD THAT STATEMENT ACCORDING TO ITS PLAIN AND OBVIOUS TENOR AND THAT THE REFERENCE TO 18 COMP. GEN. 120 WAS UNDERSTOOD TO APPLY TO POLICE RADIOS, SIRENS, SPOTLIGHTS OR SIMILAR SPECIAL EQUIPMENT NOT FOR USE IN CONNECTION WITH OPERATION OF THE CAR AS A PASSENGER CARRYING VEHICLE AND ADDING NOTHING TO THE EASE, CONVENIENCE, SAFETY, OR EFFICIENCY OF ITS OPERATION, ITS APPEARANCE OR ITS PASSENGER CARRYING QUALITIES. IN THE FACE OF THE FORTHRIGHT STATEMENTS MADE TO THE COMMITTEE IT IS UNTENABLE TO CONCLUDE OTHERWISE. THE TESTIMONY BEFORE THE SENATE AND HOUSE SUBCOMMITTEE ALSO SEEMS TO US CLEARLY TO INDICATE THAT THE CONGRESS WAS GIVEN TO UNDERSTAND THAT POLICE VEHICLES ARE ENCOMPASSED BY THE STATUTORY PURCHASE PRICE LIMITATION ON PASSENGER MOTOR VEHICLES. IN ADDITION, THE 1956 APPROPRIATION HEARINGS APPEAR TO INDICATE THAT THE CONGRESS HAS GIVEN CONSIDERATION TO THE PROPRIETY OF EXCEPTING CERTAIN SPECIAL EQUIPMENT FROM THE STATUTORY PURCHASE PRICE LIMITATION BUT HAS NOT APPROVED IT. FURTHERMORE, REPRESENTATIONS WERE MADE TO CONGRESS THAT IF AN AGENCY REQUIRED SPECIAL EQUIPMENT IN CERTAIN TYPES OF WORK THE AGENCY WOULD JUSTIFY THE REQUIREMENT IN ITS BUDGET BEFORE THE APPROPRIATION COMMITTEES AND ASK FOR NECESSARY MONEY FOR THAT TYPE OF VEHICLE. THEREFORE, WE FEEL THAT ANY EXCEPTION TO THE APPLICATION OF THE LIMITATION TO SUCH VEHICLE IS A MATTER FOR THE AGENCIES REQUIRING SUCH CARS TO JUSTIFY IN THEIR RESPECTIVE BUDGETS BEFORE THE APPROPRIATION COMMITTEES OR IF A GENERAL EXCEPTION IS TO BE SOUGHT AS TO POLICE TYPE VEHICLES THAT MATTER IS FOR PRESENTATION TO THE CONGRESS RATHER THAN FOR US TO MAKE SUCH A GENERAL EXCEPTION BY DECISION.

HOWEVER, IT IS EQUALLY CLEAR THAT 18 COMP. GEN. 120 WAS ADMINISTRATIVELY MISCONSTRUED, AND A PRACTICE BASED UPON SUCH MISCONSTRUCTION IS REPORTED TO HAVE BEEN FOLLOWED ADMINISTRATIVELY FOR MANY YEARS. FURTHERMORE, IT HAS BEEN REPORTED THAT HIGH POWERED POLICE EQUIPMENT IS NEEDED URGENTLY FOR EFFECTIVE LAW ENFORCEMENT. IT HAS BEEN CONTENDED FURTHER THAT IMMEDIATE APPLICATION OF OUR DECISION WILL SERIOUSLY HAMPER THE ENTIRE PROCUREMENT OPERATION FOR THESE POLICE TYPE VEHICLES AND THAT GIVING LAW ENFORCEMENT OFFICERS VEHICLES WITHOUT HIGH POWERED EQUIPMENT IS LIKE GIVING THEM WEAPONS WITHOUT AMMUNITION. ALSO, IT HAS BEEN SUGGESTED THAT THE FAILURE OF THE CONGRESS TO AUTHORIZE THE EXCEPTION IN CONNECTION WITH THAT 1956 APPROPRIATION WAS BECAUSE THE AMENDMENT WAS DEEMED UNNECESSARY RATHER THAN THAT THE CONGRESS OBJECTED TO EXCEEDING THE LIMITATION WHEN POLICE TYPE VEHICLES WERE PURCHASED. ACCORDINGLY, WE WILL NOT OBJECT TO CONTINUANCE OF THE REPORTED PRACTICE PROVIDED THE MATTER IS PROMPTLY PRESENTED TO CONGRESS. HOWEVER, UNLESS THE CONGRESS EXCEPTS POLICE TYPE VEHICLES FROM THE LIMITATION BY THE END OF ITS NEXT SESSION, WE WILL BE REQUIRED TO APPLY AT THAT TIME THE RULE LAID DOWN IN OUR DECISION OF APRIL 19, 1957.