B-131811, MAY 28, 1957, 36 COMP. GEN. 790

B-131811: May 28, 1957

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APPROPRIATIONS - PUBLIC BUILDING CONSTRUCTION - AVAILABILITY BEYOND - FISCAL YEAR APPROPRIATIONS WHICH ARE MADE AVAILABLE IN THE SECOND SUPPLEMENTAL APPROPRIATION ACT. FOR PLANS AND SPECIFICATIONS FOR PUBLIC BUILDING CONSTRUCTION ARE TO BE REGARDED AS ANNUAL APPROPRIATIONS FOR THE FISCAL YEAR 1957. EVEN THOUGH NO PERIOD OF AVAILABILITY IS SPECIFIED FOR EACH ITEM. APPROPRIATIONS WHICH WERE MADE AVAILABLE FOR CONSTRUCTION OF FACILITIES FOR HOUSING ANIMALS FOR NATIONAL INSTITUTES OF HEALTH IN THE SECOND SUPPLEMENTAL APPROPRIATION ACT. WHICH ARE TO BE USED FOR CONSTRUCTION OF PERMANENT TYPE BUILDINGS MAY BE CONSIDERED AVAILABLE UNTIL EXPENDED UNDER 31 U.S.C. 682. THE APPROPRIATIONS WERE ESTABLISHED ON THE BOOKS OF THE TREASURY AS FISCAL YEAR 1957 APPROPRIATION ACCOUNTS.

B-131811, MAY 28, 1957, 36 COMP. GEN. 790

APPROPRIATIONS - PUBLIC BUILDING CONSTRUCTION - AVAILABILITY BEYOND - FISCAL YEAR APPROPRIATIONS WHICH ARE MADE AVAILABLE IN THE SECOND SUPPLEMENTAL APPROPRIATION ACT, 1957, FOR PLANS AND SPECIFICATIONS FOR PUBLIC BUILDING CONSTRUCTION ARE TO BE REGARDED AS ANNUAL APPROPRIATIONS FOR THE FISCAL YEAR 1957, EVEN THOUGH NO PERIOD OF AVAILABILITY IS SPECIFIED FOR EACH ITEM, AND SINCE APPROPRIATIONS FOR PLANS AND SPECIFICATIONS FOR BUILDING CONSTRUCTION MAY NOT BE CONSIDERED PUBLIC BUILDING APPROPRIATIONS SO AS TO COME WITHIN THE EXEMPTION TO THE FISCAL YEAR LIMITATION IN 31 U.S.C. 682, SUCH APPROPRIATIONS MAY NOT BE OBLIGATED AFTER THE 1957 FISCAL YEAR. APPROPRIATIONS WHICH WERE MADE AVAILABLE FOR CONSTRUCTION OF FACILITIES FOR HOUSING ANIMALS FOR NATIONAL INSTITUTES OF HEALTH IN THE SECOND SUPPLEMENTAL APPROPRIATION ACT, 1957, AND WHICH ARE TO BE USED FOR CONSTRUCTION OF PERMANENT TYPE BUILDINGS MAY BE CONSIDERED AVAILABLE UNTIL EXPENDED UNDER 31 U.S.C. 682.

TO THE SECRETARY OF HEALTH, EDUCATION AND WELFARE, MAY 28, 1957:

YOUR LETTER OF MAY 9, 1957, REQUESTS OUR DECISION CONCERNING THE PERIOD OF AVAILABILITY OF CERTAIN APPROPRIATIONS FOR THE PUBLIC HEALTH SERVICE, CONTAINED IN THE SECOND SUPPLEMENTAL APPROPRIATION ACT, 1957, PUBLIC LAW 855, APPROVED JULY 31, 1956, 70 STAT. 769. THOSE APPROPRIATIONS READ AS FOLLOWS:

CONSTRUCTION OF DENTAL RESEARCH BUILDING: FOR THE PREPARATION OF PLANS AND SPECIFICATIONS FOR CONSTRUCTION OF BUILDINGS AND FACILITIES FOR THE NATIONAL INSTITUTE OF DENTAL RESEARCH, IN ACCORDANCE WITH THE NATIONAL DENTAL RESEARCH ACT, AS AMENDED (42 U.S.C. 288), $200,000.

CONSTRUCTION OF ANIMAL QUARTERS: FOR CONSTRUCTION OF FACILITIES FOR HOUSING ANIMALS FOR THE NATIONAL INSTITUTES OF HEALTH, INCLUDING PREPARATION OF PLANS, EQUIPMENT, AND THE TEMPORARY DIVERSION OF SUCH FACILITIES FOR OFFICE SPACE, $1,371,000.

GENERAL OFFICE BUILDING: FOR PLANS AND SPECIFICATIONS PREPARATORY TO CONSTRUCTION OF A GENERAL OFFICE BUILDING, NATIONAL INSTITUTES OF HEALTH, $300,000.

CONSTRUCTION OF LIBRARY FACILITIES: FOR THE PREPARATION OF PLANS, SPECIFICATIONS, AND DRAWINGS FOR THE NATIONAL LIBRARY OF MEDICINE, $350,000: PROVIDED, THAT THIS APPROPRIATION SHALL BECOME EFFECTIVE ONLY UPON ENACTMENT INTO LAW OF S. 3430, EIGHTY-FOURTH CONGRESS.

THE APPROPRIATIONS WERE ESTABLISHED ON THE BOOKS OF THE TREASURY AS FISCAL YEAR 1957 APPROPRIATION ACCOUNTS. SEE TREASURY DEPARTMENT ANNOUNCEMENT OF ACCOUNT SYMBOLS AND TITLES NOS. 4215 AND 4222, DATED AUGUST 3 AND 8, 1956, RESPECTIVELY.

YOU SAY THAT ALTHOUGH THE REFERRED-TO APPROPRIATIONS DO NOT SPECIFY THE PERIOD OF AVAILABILITY, YOU HAVE ASSUMED THAT THE FUNDS REPRESENTED THEREBY REMAIN AVAILABLE UNTIL COMPLETION OF THE WORK FOR WHICH THEY WERE APPROPRIATED PURSUANT TO THE TERMS OF 31 U.S.C. 682. IN SUPPORT OF THAT POSITION YOU POINT OUT THAT THE LANGUAGE OF THE APPROPRIATION FOR THE DENTAL BUILDING, AS CONTAINED ON PAGE 12 OF SENATE DOCUMENT NO. 143, 84TH CONGRESS, INCLUDED THE PHRASE "TO REMAIN AVAILABLE UNTIL EXPENDED.' YOU REPORT THAT ALTHOUGH THE PRINTED LEGISLATIVE RECORD IS SILENT AS TO THE REASON FOR DELETION OF THE PHRASE FROM THE APPROPRIATION, YOUR DEPARTMENT WAS INFORMALLY ADVISED THAT THE LANGUAGE WAS CONSIDERED UNNECESSARY. ALSO, YOU REFER TO THE DELETION OF THIS PHRASE FROM THE LANGUAGE OF THE APPROPRIATION MADE IN THE SECOND SUPPLEMENTAL APPROPRIATION ACT, 1956, PUBLIC LAW 533, APPROVED MAY 19, 1956, 70 STAT. 170, TO THE PUBLIC HEALTH SERVICE FOR " CONSTRUCTION OF BIOLOGICS STANDARDS LABORATORY BUILDING," AND TO THE EXPLANATORY STATEMENT CONTAINED IN THE RELATED SENATE REPORT NO. 1725, 84TH CONGRESS (PAGE 15), TO THE EFFECT THAT THE PROVISIONS OF 31 U.S.C. 682, QUOTED THEREIN, OBVIATE THE NEED FOR CONTINUING THE PHRASE IN THE LANGUAGE OF THAT APPROPRIATION.

AS A FURTHER INDICATION OF THE INTENT OF THE CONGRESS TO AUTHORIZE THE WORK PERFORMED UNDER THE APPROPRIATIONS FOR PLANS AND SPECIFICATIONS AS PART OF THE ACTUAL CONSTRUCTION OF THE BUILDINGS, YOU SUGGEST THAT THE APPROPRIATION TITLES CLEARLY INDICATE THE PURPOSE OF THE APPROPRIATIONS IS CONSTRUCTION AND THAT THE LANGUAGE IDENTIFIES THE NATURE OR PURPOSES OF THE BUILDINGS TO BE CONSTRUCTED. IN ADDITION, YOU MENTION THAT TWO OF THE APPROPRIATIONS IN QUESTION CONTAIN SPECIFIC REFERENCE TO THE ENABLING LEGISLATION PROVIDING FOR CONSTRUCTION OF THE BUILDINGS.

PROCEEDING FURTHER, YOU SAY THAT PLANS AND SPECIFICATIONS ARE DRAWN IN COOPERATION WITH THE ENGINEERING STAFF OF THE GENERAL SERVICES ADMINISTRATION, AND EXPLAIN THE VARIOUS FUNCTIONS AND PROBLEMS OF THE LATTER IN PREPARING SITE AND BUILDING PLANS AND SPECIFICATIONS, WHICH SERVE TO ESTIMATE THE APPROXIMATE FUND REQUIREMENTS FOR THE ACTUAL CONSTRUCTION. IN CONNECTION THEREWITH, YOU POINT OUT THAT THE SERVICES OF ARCHITECTS ARE REQUIRED FROM THE TIME THE INITIAL PLANS AND SPECIFICATIONS ARE MADE UNTIL THE STRUCTURE IS COMPLETED. YOU EXPRESS THE VIEW THAT THE DRAWING OF PLANS AND SPECIFICATIONS FOR THE CONSTRUCTION OF A BUILDING THUS IS NOT A SEPARABLE PART OF THE OVERALL BUILDING PROJECT BUT RATHER, IS A CONTINUING INTEGRAL FUNCTION TO BE PERFORMED THROUGHOUT THE ENTIRE LIFE OF THE PROJECT; AND, THEREFORE, IT WOULD BE IMPOSSIBLE TO EFFICIENTLY ACCOMPLISH THE PURPOSE OF THE APPROPRIATIONS IF THE PERIOD OF OBLIGATIONAL AVAILABILITY WERE TO BE LIMITED TO ONE FISCAL YEAR.

SECTION 7 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 487, AS AMENDED BY SECTION 6 OF THE ACT OF MARCH 3, 1919, 40 STAT. 1309, 31 U.S.C. 718, PROVIDES THAT NO SPECIFIC OR INDEFINITE APPROPRIATION MADE IN ANY REGULAR ANNUAL APPROPRIATION ACT SHALL BE CONSTRUED TO BE PERMANENT OR AVAILABLE CONTINUOUSLY WITHOUT REFERENCE TO A FISCAL YEAR UNLESS IT BELONGS TO CERTAIN CLASSES THEREIN SPECIFIED, INCLUDING PUBLIC BUILDINGS, OR UNLESS IT IS MADE IN TERMS EXPRESSLY PROVIDING THAT IT SHALL CONTINUE AVAILABLE BEYOND THE FISCAL YEAR FOR WHICH THE APPROPRIATION ACT IN WHICH IT IS CONTAINED MAKES PROVISION.

SECTION 1 OF THE ACT OF JUNE 23, 1874, 18 STAT. 275, 31 U.S.C. 682, READS AS FOLLOWS:

ALL MONEYS APPROPRIATED FOR THE CONSTRUCTION OF PUBLIC BUILDINGS SHALL REMAIN AVAILABLE UNTIL THE COMPLETION OF THE WORK FOR WHICH THEY ARE, OR MAY BE, APPROPRIATED; AND UPON THE FINAL COMPLETION OF EACH OR ANY OF SAID BUILDINGS, AND THE PAYMENT OF ALL OUTSTANDING LIABILITIES THEREFOR, THE BALANCE OR BALANCES REMAINING SHALL BE IMMEDIATELY COVERED INTO THE TREASURY.

THE APPROPRIATIONS HERE UNDER CONSIDERATION ARE NOT CONTAINED IN A REGULAR ANNUAL APPROPRIATION ACT BUT THE CITED SUPPLEMENTAL APPROPRIATION ACT IN WHICH THEY APPEAR PROVIDES IN ITS OPENING CLAUSE:

THAT THE FOLLOWING SUMS ARE APPROPRIATED OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED, TO SUPPLY SUPPLEMENTAL APPROPRIATION * * * FOR THE FISCAL YEAR ENDING JUNE 30, 1957, AND FOR OTHER PURPOSES * * *.

IT IS CLEAR FROM THIS PROVISION OF LAW THAT, AS TO THE APPROPRIATIONS CONTAINED IN THE ACT, THE CONGRESS INTENDED THAT THEY WERE TO BE CONSIDERED AS ANNUAL APPROPRIATIONS FOR THE FISCAL YEAR 1957, UNLESS OTHERWISE PROVIDED IN EXPRESS TERMS, OR UNLESS THE APPROPRIATIONS WERE OF SUCH CLASS AS ARE SPECIFICALLY EXEMPTED FROM FISCAL YEAR LIMITATIONS BY THE REFERRED-TO 1874 AND 1912 STATUTES.

THE APPROPRIATIONS QUOTED ABOVE, EXCEPT AS TO THE APPROPRIATION FOR CONSTRUCTION OF FACILITIES FOR HOUSING ANIMALS WHICH IS CONSIDERED HEREINAFTER, ARE NOT MADE AVAILABLE FOR THE ACTUAL CONSTRUCTION OF PUBLIC BUILDINGS. ON THE CONTRARY, THEY ARE AVAILABLE SOLELY FOR THE PREPARATION OF PLANS AND SPECIFICATIONS FOR PUBLIC BUILDINGS TO BE CONSTRUCTED. REPEATEDLY HAVE HELD THAT SUCH APPROPRIATIONS FOR PLANS AND SPECIFICATIONS DO NOT CONSTITUTE PUBLIC BUILDING APPROPRIATIONS WITHIN THE MEANING OF THE ACTS OF 1874 AND 1912, SO AS TO RENDER INAPPLICABLE FISCAL YEAR LIMITATIONS. SEE, IN ADDITION TO OUR DECISIONS 7 COMP. GEN. 619 AND 19 ID. 702, CITED IN YOUR EXEMPTION FROM THE INHIBITION OF THE 1912 STATUTE GENERALLY HAS BEEN HELD TO BE INAPPLICABLE TO ANY APPROPRIATION WHICH DOES NOT PROVIDE FOR THE ORIGINAL CONSTRUCTION OF A PUBLIC BUILDING.

ONE OF THE REASONS ADVANCED IN YOUR LETTER FOR REESTABLISHING THESE APPROPRIATIONS WITH NO-YEAR AVAILABILITY IS THAT THE PHRASE "TO REMAIN AVAILABLE UNTIL EXPENDED" WAS DELETED FROM THE APPROPRIATION CONTAINED IN THE SECOND SUPPLEMENTAL APPROPRIATION ACT, 1956, FOR " CONSTRUCTION OF BIOLOGICS STANDARDS LABORATORY BUILDING.' THAT APPROPRIATION IS EXPRESSLY MADE AVAILABLE FOR CONSTRUCTION OF THE BUILDING INCLUDING PLANS AS DISTINGUISHED FROM THE ONES HERE INVOLVED WHICH ARE AVAILABLE ONLY FOR PLANS AND SPECIFICATIONS. HENCE, IT IS AT ONCE APPARENT THAT THE 1956 APPROPRIATION IS SUBJECT TO THE PROVISIONS OF 31 U.S.C. 682, THAT THE PHRASE "TO REMAIN AVAILABLE UNTIL EXPENDED" IS UNNECESSARY THEREIN TO DENOTE ITS PERIOD OF AVAILABILITY BUT THAT SUCH SECTION AND REASON FOR DELETION OF THE PHRASE HAS NO APPLICATION HERE.

REGARDING THE CONTENTION THAT THE APPROPRIATION TITLES INDICATE A LEGISLATIVE INTENT THAT THE ,PURPOSE OF THE APPROPRIATIONS IS CONSTRUCTION," WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF THE APPROPRIATION ACT, OR OTHERWISE, INDICATING AN INTENTION ON THE PART OF THE CONGRESS THAT THE SAID TITLES SHOULD BE CONSTRUED AS BROADENING THE USE OR PERIOD OF AVAILABILITY OF THE APPROPRIATIONS CONTRARY TO THE PLAIN TERMS THEREOF OR TO THE BASIC PRINCIPLES UNDERLYING THE SUBJECT STATUTES. SEE 1 COMP. GEN. 532, 533.

YOU MAY BE SURE THAT WE FULLY RECOGNIZE THE PROBLEMS INCIDENT TO OBLIGATING WITHIN A FISCAL YEAR ALL FUNDS PROVIDED FOR PLANS AND SPECIFICATIONS FOR LARGE PUBLIC BUILDING PROJECTS, PARTICULARLY, IN VIEW OF THE PROVISIONS OF SECTION 1311 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1955, 68 STAT. 800, 830, 31 U.S.C. 200. CF. 35 COMP. GEN. 3; 34 ID. 705. HOWEVER, AND AFTER CONSIDERING THE OTHER REASONS ASSIGNED BY YOU, WE FIND NOTHING WHICH WOULD WARRANT ANY CHANGE IN THE CLASSIFICATION OF THESE APPROPRIATIONS.

ACCORDINGLY, AND IN ANSWER TO YOUR SPECIFIC QUESTION WE CONCLUDE THAT THE APPROPRIATIONS HERE UNDER CONSIDERATION MAY NOT BE REGARDED AS PUBLIC BUILDINGS APPROPRIATIONS SUBJECT TO THE PROVISIONS OF 31 U.S.C. 682, AND SINCE BY THE TERMS THEREOF THEY ARE NOT MADE AVAILABLE BEYOND THE FISCAL YEAR 1957, THERE IS NO AUTHORITY FOR CONSIDERING THEM AVAILABLE FOR OBLIGATION SUBSEQUENT TO JUNE 30, 1957.

CONCERNING THE APPROPRIATION FOR CONSTRUCTION OF FACILITIES FOR HOUSING ANIMALS, OUR UNDERSTANDING IS THAT IT WAS ESTABLISHED IN A FISCAL YEAR 1957 ACCOUNT UNDER THE BELIEF THAT THE CONSTRUCTION INVOLVED DID NOT CONSTITUTE A PUBLIC BUILDING. ON THE BASIS OF INFORMAL ADVICE NOW RECEIVED FROM THE GENERAL SERVICES ADMINISTRATION THAT THE CONTEMPLATED FACILITIES ARE IN THE NATURE OF BRICK CONSTRUCTED PERMANENT TYPE BUILDINGS, NO REASON APPEARS WHY THE FUNDS SHOULD NOT BE MADE AVAILABLE UNDER A NO-YEAR APPROPRIATION ACCOUNT AND, IN ORDER THAT THE STATUS OF THE APPROPRIATION MAY BE SHOWN ON THE RECORD ACCORDINGLY, THE MATTER IS BEING CALLED TO THE ATTENTION OF THE SECRETARY OF THE TREASURY TODAY WITH A VIEW TO ADJUSTING THIS APPROPRIATION ACCOUNT.