B-13204, NOVEMBER 19, 1940, 20 COMP. GEN. 264

B-13204: Nov 19, 1940

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1940: I HAVE YOUR LETTER OF OCTOBER 29. THE CIVIL AERONAUTICS ADMINISTRATION DOES NOT HAVE A CONSTRUCTION DEPARTMENT. SINCE A SUBSTANTIAL PART OF THE WORK TO BE ACCOMPLISHED UNDER THIS PROGRAM WILL BE ACCOMPLISHED BY CONTRACT. ARE EQUIPPED TO ACCOMPLISH THIS WORK FOR THE CIVIL AERONAUTICS ADMINISTRATION. TO PROCEED WITH THE ACCOMPLISHMENT OF A CONSTRUCTION PROJECT OF THIS NATURE WHEN THEY HAVE ALL OF THE FIELD AND OTHER FACILITIES NECESSARY TO PROMPTLY PROCEED WITH THE WORK THAN TO REQUIRE THE CIVIL AERONAUTICS ADMINISTRATION TO ESTABLISH DUPLICATED ENGINEERING FUNCTIONS. SINCE IT IS ESSENTIAL THAT THIS WORK BE GOTTEN UNDER WAY IMMEDIATELY IN CONNECTION WITH THE NATIONAL-DEFENSE PREPARATIONS.

B-13204, NOVEMBER 19, 1940, 20 COMP. GEN. 264

DEPARTMENTS AND ESTABLISHMENTS - SERVICES BETWEEN - ONE DEPARTMENT CONTRACTING FOR ANOTHER, ETC. FUNDS MADE AVAILABLE TO THE CIVIL AERONAUTICS ADMINISTRATION BY THE ACT OF OCTOBER 9, 1940 FOR NATIONAL-DEFENSE LANDING-AREA PROJECTS MAY BE TRANSFERRED TO OTHER GOVERNMENT AGENCIES UNDER SECTION 601 OF THE ECONOMY ACT OF JUNE 30, 1932, ONLY FOR SERVICES OR WORK TO BE PERFORMED IN CONNECTION WITH SUCH PROJECTS BY PERSONNEL OF THOSE AGENCIES, BUT IN CONNECTION WITH THOSE OF SAID PROJECTS WHICH INVOLVE THE CONSTRUCTION OF PUBLIC BUILDINGS FUNDS MAY BE TRANSFERRED TO THE FEDERAL WORKS AGENCY FOR DIRECT EXPENDITURE UNDER CONTRACTS EXECUTED BY THAT AGENCY AS CONTEMPLATED BY SECTION 35 OF THE ACT OF JUNE 25, 1910, AS AMENDED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, NOVEMBER 19, 1940:

I HAVE YOUR LETTER OF OCTOBER 29, 1940, AS FOLLOWS:

THE CIVIL AERONAUTICS ADMINISTRATION OF THIS DEPARTMENT HAS AN APPROPRIATION IN THE AMOUNT OF $40,000,000 PROVIDED IN PUBLIC, NO. 812, 76TH CONGRESS, APPROVED OCTOBER 9, 1940, FOR THE CONSTRUCTION, IMPROVEMENT, AND REPAIR OF NOT TO EXCEED TWO HUNDRED AND FIFTY PUBLIC AIRPORTS AND OTHER PUBLIC LANDING AREAS IN THE UNITED STATES AND ITS TERRITORIES AND POSSESSIONS. THE MOST EXPEDITIOUS AND ECONOMICAL METHOD OF ACCOMPLISHING THIS WORK WOULD BE UNDER THE PROVISIONS OF PARAGRAPH 601 OF THE ECONOMY ACT (31 U.S.C. 686).

THE CIVIL AERONAUTICS ADMINISTRATION DOES NOT HAVE A CONSTRUCTION DEPARTMENT, AND SINCE A SUBSTANTIAL PART OF THE WORK TO BE ACCOMPLISHED UNDER THIS PROGRAM WILL BE ACCOMPLISHED BY CONTRACT, AFTER ADVERTISING AND SECURING OF COMPETITIVE BIDS, IT WOULD BE NECESSARY FOR THE CIVIL AERONAUTICS ADMINISTRATION TO ESTABLISH A CONSTRUCTION UNIT TO PREPARE PLANS AND SPECIFICATIONS, ADVERTISE AND AWARD CONTRACTS AND TO ACTUALLY SUPERVISE THE WORK TO BE ACCOMPLISHED UNDER SUCH CONTRACTS. FEDERAL AGENCIES SUCH AS THE WAR DEPARTMENT AND THE NAVY DEPARTMENT, ARE EQUIPPED TO ACCOMPLISH THIS WORK FOR THE CIVIL AERONAUTICS ADMINISTRATION, PROVIDING THAT FUNDS MAY BE MADE AVAILABLE TO THEM UNDER PARAGRAPH 601 OF THE ECONOMY ACT OF JUNE 30, 1932. IN VIEW OF THE EMERGENCY NATURE OF ALL DEFENSE ACTIVITIES, IT WOULD UNDOUBTEDLY BE MORE ECONOMICAL AND MORE EXPEDITIOUS FOR THE WAR DEPARTMENT, FOR EXAMPLE, TO PROCEED WITH THE ACCOMPLISHMENT OF A CONSTRUCTION PROJECT OF THIS NATURE WHEN THEY HAVE ALL OF THE FIELD AND OTHER FACILITIES NECESSARY TO PROMPTLY PROCEED WITH THE WORK THAN TO REQUIRE THE CIVIL AERONAUTICS ADMINISTRATION TO ESTABLISH DUPLICATED ENGINEERING FUNCTIONS.

SINCE IT IS ESSENTIAL THAT THIS WORK BE GOTTEN UNDER WAY IMMEDIATELY IN CONNECTION WITH THE NATIONAL-DEFENSE PREPARATIONS, I SHALL APPRECIATE YOUR PROMPT ADVICE IF YOU AGREE THAT THE PROCEDURE PROPOSED COMES WITHIN THE PURVIEW OF THE CITED SECTION OF THE ECONOMY ACT.

THE APPROPRIATION IN QUESTION, ACT APPROVED OCTOBER 9, 1940, PUBLIC NO. 812, PROVIDES:

DEVELOPMENT OF LANDING AREAS: FOR THE CONSTRUCTION, IMPROVEMENT, AND REPAIR OF NOT TO EXCEED TWO HUNDRED AND FIFTY PUBLIC AIRPORTS AND OTHER PUBLIC LANDING AREAS IN THE UNITED STATES AND ITS TERRITORIES AND POSSESSIONS DETERMINED BY THE ADMINISTRATOR, WITH THE APPROVAL OF A BOARD COMPOSED OF THE SECRETARY OF WAR, SECRETARY OF THE NAVY, AND SECRETARY OF COMMERCE, TO BE NECESSARY FOR NATIONAL DEFENSE, INCLUDING AREAS ESSENTIAL FOR SAFE APPROACHES AND INCLUDING THE ACQUISITION OF LAND, $40,000,000, OF WHICH $2,000,000 SHALL BE AVAILABLE FOR GENERAL ADMINISTRATIVE EXPENSES, INCLUDING THE OBJECTS SPECIFIED IN SECTION 204 OF THE CIVIL AERONAUTICS ACT OF 1938 (52 STAT. 983) AND INCLUDING ENGINEERING SERVICES AND SUPERVISION OF CONSTRUCTION: PROVIDED, THAT THIS APPROPRIATION SHALL NOT BE CONSTRUED AS PRECLUDING THE USE OF OTHER APPROPRIATIONS AVAILABLE FOR ANY OF THE PURPOSES FOR WHICH THIS APPROPRIATION IS MADE.

SECTION 35 OF THE ACT OF JUNE 25, 1910, AS AMENDED BY THE ACT OF JUNE 15, 1938, 52 STAT. 683, PROVIDES:

THE SECRETARY OF THE TREASURY MAY, IN HIS DISCRETION, UPON THE REQUEST OF THE HEAD OF ANY OTHER EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT OR OTHER FEDERAL AGENCY, CAUSE THE PROCUREMENT DIVISION, TREASURY DEPARTMENT, TO CARRY OUT THE CONSTRUCTION OF ANY BUILDING OR BUILDINGS FOR GOVERNMENTAL PURPOSES WHICH ANY SUCH EXECUTIVE DEPARTMENT, ESTABLISHMENT, OR AGENCY MAY BE AUTHORIZED TO HAVE CONSTRUCTED, INCLUDING THE PREPARATION OF PLANS, DRAWINGS, DESIGNS, SPECIFICATIONS AND ESTIMATES, THE ACQUISITION OF LAND NECESSARY FOR SITES THE EXECUTION OF CONTRACTS, AND SUPERVISION OF CONSTRUCTION: PROVIDED THAT FUNDS APPROPRIATED TO OTHER EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, OR OTHER FEDERAL AGENCIES FOR THE FOREGOING PURPOSES SHALL BE AVAILABLE FOR TRANSFER TO AND EXPENDITURE BY THE PROCUREMENT DIVISION, TREASURY DEPARTMENT, IN WHOLE OR IN PART, EITHER IN REIMBURSEMENT OF THE PROPER APPROPRIATIONS OF THE PROCUREMENT DIVISION, FOR THE COST OF SUCH WORK, OR AS ADVANCES TO SPECIAL ACCOUNTS FOR THE PURPOSE OF PROVIDING FOR THE PROSECUTION OF SAID WORK.

THE AUTHORITY THUS VESTED IN THE SECRETARY OF THE TREASURY AND THE PROCUREMENT DIVISION OF THE TREASURY DEPARTMENT WAS TRANSFERRED TO THE FEDERAL WORKS AGENCY BY REORGANIZATION PLAN NO. 1, WHICH BECAME EFFECTIVE JULY 1, 1939, 53 STAT. 1426. AS TO SUCH PROJECTS AS MAY INVOLVE THE CONSTRUCTION OF PUBLIC BUILDINGS AS CONTEMPLATED BY THE LAW LAST QUOTED AND WITH RESPECT TO WHICH THE FEDERAL WORKS AGENCY MAY BE EQUIPPED AND HAVE FACILITIES TO PROSECUTE, NO REASON IS APPARENT WHY FUNDS SHOULD NOT BE TRANSFERRED TO THAT AGENCY UNDER THE PROCEDURE AUTHORIZED BY SAID ACT. HOWEVER, NO SUCH PROVISION OF LAW APPEARS TO HAVE BEEN ENACTED AUTHORIZING SUCH ARRANGEMENTS WITH THE WAR DEPARTMENT OR THE NAVY DEPARTMENT.

PRIOR TO THE AMENDMENT OF THE ACT OF JUNE 25, 1910, BY THE ACT OF JUNE 15, 1938, SUPRA, THERE WAS PRESENTED TO THIS OFFICE A PROPOSAL TO TRANSFER FUNDS UNDER AUTHORITY OF SECTION 601 OF THE ECONOMY ACT FROM THE FOREIGN SERVICE BUILDING FUND TO A WORKING FUND UNDER THE PROCUREMENT DIVISION OF THE TREASURY DEPARTMENT TO ENABLE THAT DIVISION TO PERFORM CERTAIN WORK IN CONNECTION WITH THE RESIDENCE FOR THE AMERICAN MINISTER AT OTTAWA, CANADA. IN DECISION OF MARCH 18, 1936, A 70486, WITH RESPECT TO THIS PROPOSAL, IT WAS SAID:

WHILE THE APPROPRIATION " FOREIGN SERVICE BUILDING FUND" APPEARS TO BE AVAILABLE FOR THE COST OF CONSTRUCTING THE PROPOSED NEW ROADWAY AS "INITIAL ALTERATION AND REPAIR OF PURCHASED * * * GROUNDS" ON THE RECENTLY ACQUIRED SITE FOR A RESIDENCE FOR THE AMERICAN MINISTER AT OTTAWA, CANADA, THE RESPONSIBILITY FOR LETTING THE CONTRACT FOR THE WORK TO BE DONE IS THAT OF THE SECRETARY OF STATE UNDER THE CITED PROVISIONS OF THE FOREIGN SERVICE BUILDINGS ACT OF 1926, AS AMENDED, AND SUCH RESPONSIBILITY, HAVING BEEN SPECIFICALLY FIXED BY LAW, MAY NOT BE TRANSFERRED TO ANOTHER AGENCY OF THE GOVERNMENT BY THE ESTABLISHING OF A SPECIAL WORKING FUND UNDER SECTION 601 OF THE ACT OF JUNE 30, 1932, 47 STAT. 417, MAKING AVAILABLE FOR EXPENDITURE BY SUCH OTHER AGENCY THE FUNDS ENTRUSTED TO THE SECRETARY OF STATE FOR THE PROJECT IN QUESTION. FURTHERMORE, THERE IS NOT INVOLVED IN WHAT IS HERE PROPOSED THE PLACING BY THE SECRETARY OF STATE WITH THE DIVISION OF PROCUREMENT OF AN ORDER "FOR MATERIALS, SUPPLIES, EQUIPMENT, WORK, OR SERVICES OF ANY KIND THAT" THE DIVISION OF PROCUREMENT "MAY BE IN A POSITION TO SUPPLY OR EQUIPPED TO RENDER" SUCH AS WOULD AUTHORIZE AVAILING OF THE PROCEDURE PROVIDED FOR UNDER THE SAID SECTION 601 OF THE ACT OF JUNE 30, 1932. ON THE CONTRARY, WHAT IS HERE CONTEMPLATED IS THE TURNING OVER TO THE DIVISION OF PROCUREMENT OF AN ADMINISTRATIVE DUTY WHICH THE CONGRESS IMPOSED UPON THE DEPARTMENT OF STATE. CONSEQUENTLY, THERE IS NO AUTHORITY OF LAW FOR THE ESTABLISHING OF THE WORKING FUND, AS PROPOSED.

ALSO, A SIMILAR QUESTION, INVOLVING THE CONSTRUCTION OF STATIONS FOR THE CIVIL AERONAUTICS AUTHORITY ON PALMYRA AND JOHNSTON ISLANDS, WAS SUBMITTED TO THIS OFFICE BY THE NAVY DEPARTMENT AND BY DECISION OF DECEMBER 2, 1939, 19 COMP. GEN. 544, IT WAS HELD:

SECTION 601 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 417, DOES NOT AUTHORIZE THE TRANSFER OF FUNDS FROM ONE FEDERAL AGENCY TO ANOTHER FOR THE PURPOSE OF HAVING THE SECOND AGENCY PROCURE THE PERFORMANCE OF WORK FOR THE FIRST AGENCY BY OUTSIDE CONTRACTS, THE AUTHORITY BEING LIMITED TO ORDERS FOR SUCH MATERIALS, SUPPLIES, EQUIPMENT, WORK, OR SERVICES OF ANY KIND THAT THE REQUISITIONED AGENCY "MAY BE IN A POSITION TO SUPPLY OR EQUIPPED TO RENDER.'

WHAT WAS STATED IN THE ABOVE QUOTATIONS FROM THOSE TWO DECISIONS IS EQUALLY APPLICABLE TO THE QUESTION HERE PRESENTED INSOFAR AS IT RELATES TO THE TRANSFER OF FUNDS AND CONTRACTING FUNCTIONS FROM THE DEPARTMENT OF COMMERCE TO THE WAR DEPARTMENT OR TO THE NAVY DEPARTMENT.

ACCORDINGLY, IN ANSWER TO THE QUESTION SUBMITTED, I HAVE TO ADVISE THAT, IF THE SERVICES OF ANY GOVERNMENT AGENCY OTHER THAN THE PUBLIC BUILDINGS ADMINISTRATION OF THE FEDERAL WORKS AGENCY ARE TO BE UTILIZED IN CONNECTION WITH PROJECTS TO BE PROSECUTED UNDER THE APPROPRIATION HERE INVOLVED, THE ONLY SERVICES WHICH MAY BE REQUISITIONED UNDER THE PROVISIONS OF SECTION 701 OF THE ECONOMY ACT OF JUNE 30, 1932, ARE THOSE INCIDENT TO THE PREPARATION OF PLANS AND SPECIFICATIONS, THE DRAFTING OF CONTRACT PROVISIONS, AND THE SUPERVISION AND INSPECTION OF THE CONSTRUCTION WORK; THAT IS, SERVICES OR WORK TO BE RENDERED OR PERFORMED BY THE PERSONNEL OF THE REQUISITIONED AGENCY.