B-132356, JUL. 29, 1957

B-132356: Jul 29, 1957

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THE PROCEDURE CONTEMPLATES THAT THE BUREAU OF PUBLIC ROADS WILL ACQUIRE TITLE TO THE EXCESS PROPERTY UNDER THE PROVISIONS OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949. THE BUREAU OF PUBLIC ROADS WILL THEREUPON TRANSFER THE EXCESS PROPERTY TO STATE COOPERATING AGENCIES UNDER THE PERMISSIVE AUTHORITY CONTAINED IN THE ANNUAL APPROPRIATION ACTS FOR THE DEPARTMENT OF COMMERCE. THE STATE COOPERATING AGENCIES RECEIVING SUCH PROPERTY WILL BE REQUIRED TO MAKE REIMBURSEMENT IN THE SAME AMOUNT EXPENDED BY THE BUREAU FOR THE PROPERTY. NO SURCHARGE WILL BE IMPOSED BY THE BUREAU AND ANY INSPECTION. RELATED COSTS WILL BE BORNE BY THE STATE. THE CONTEMPLATED PROCEDURE APPEARS TO BE WITHIN THE SCOPE OF THE STATUTES CITED AND NO QUESTION AS TO ITS LEGALITY WILL BE RAISED BY US.

B-132356, JUL. 29, 1957

TO THE SECRETARY OF COMMERCE:

ON JUNE 25, 1957, THE ASSISTANT SECRETARY OF COMMERCE FOR ADMINISTRATION REQUESTED OUR ADVICE ON AND CONFIRMATION OF A PROCEDURE WHEREBY EXCESS MATERIALS AND EQUIPMENT WOULD BE OBTAINED BY THE BUREAU OF PUBLIC ROADS THROUGH THE GENERAL SERVICES ADMINISTRATION AND TRANSFERRED TO STATE COOPERATING AGENCIES FOR USE IN HIGHWAY CONSTRUCTION, MAINTENANCE, AND RESEARCH.

THE PROCEDURE CONTEMPLATES THAT THE BUREAU OF PUBLIC ROADS WILL ACQUIRE TITLE TO THE EXCESS PROPERTY UNDER THE PROVISIONS OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, AND MAKE REIMBURSEMENT THEREFOR IN ACCORDANCE WITH THE ESTABLISHED REQUIREMENTS OF THE GENERAL SERVICES ADMINISTRATION. THE BUREAU OF PUBLIC ROADS WILL THEREUPON TRANSFER THE EXCESS PROPERTY TO STATE COOPERATING AGENCIES UNDER THE PERMISSIVE AUTHORITY CONTAINED IN THE ANNUAL APPROPRIATION ACTS FOR THE DEPARTMENT OF COMMERCE. THE STATE COOPERATING AGENCIES RECEIVING SUCH PROPERTY WILL BE REQUIRED TO MAKE REIMBURSEMENT IN THE SAME AMOUNT EXPENDED BY THE BUREAU FOR THE PROPERTY, SUCH REIMBURSEMENT BEING CREDITED TO CURRENT APPLICABLE APPROPRIATIONS IN ACCORDANCE WITH THE ABOVE-CITED PERMISSIVE AUTHORITY. NO SURCHARGE WILL BE IMPOSED BY THE BUREAU AND ANY INSPECTION, HANDLING, TRANSPORTATION, AND RELATED COSTS WILL BE BORNE BY THE STATE.

THE CONTEMPLATED PROCEDURE APPEARS TO BE WITHIN THE SCOPE OF THE STATUTES CITED AND NO QUESTION AS TO ITS LEGALITY WILL BE RAISED BY US. HOWEVER, SINCE THE GENERAL SERVICES ADMINISTRATION TRANSFERS EXCESS PROPERTY ON A "FIRST COME" BASIS, THE PROCEDURE AS PROPOSED WOULD PERMIT THE BUREAU OF PUBLIC ROADS TO ACQUIRE AND TRANSFER TO THE STATES EXCESS PROPERTY WHICH WAS NEEDED BY ANOTHER FEDERAL AGENCY, THUS REQUIRING THE LATTER TO PROCURE IDENTICAL PROPERTY ELSEWHERE AT A SUBSTANTIALLY GREATER COST. OBVIOUSLY, SUCH A RESULT WAS NOT INTENDED BY THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OR THE PERMISSIVE TRANSFER AUTHORITY CONTAINED IN THE ANNUAL APPROPRIATION ACTS FOR THE DEPARTMENT OF COMMERCE. THE PRIMARY INTENT OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT WAS TO RETAIN WITHIN THE GOVERNMENT ANY PROPERTY NEEDED BY ANY AGENCY THEREOF IN THE PERFORMANCE OF ITS STATUTORY DUTIES AND TO PERMIT THE DISPOSAL OUTSIDE OF THE FEDERAL GOVERNMENT OF ONLY SUCH PROPERTY AS WAS NOT REQUIRED FOR USE BY ANY FEDERAL AGENCY. THE AUTHORITY WHEREBY THE BUREAU OF PUBLIC ROADS MAY SELL PROPERTY TO STATE COOPERATING AGENCIES IS PERMISSIVE ONLY; THAT IS TO SAY, SUCH SALE IS NOT A STATUTORY DUTY OF THE BUREAU. THE ACQUISITION BY THE BUREAU AND TRANSFER TO STATE AGENCIES, UNDER THE PROPOSED PROCEDURE, OF EXCESS PROPERTY NEEDED BY ANOTHER FEDERAL AGENCY WOULD RESULT IN AN ANOMALOUS SITUATION WHEREBY THE BUREAU WOULD BE FURNISHING FEDERAL PROPERTY TO STATE AGENCIES AT RELATIVELY LOW COST WHILE ANOTHER FEDERAL AGENCY WOULD BE PROCURING IDENTICAL PROPERTY FOR ITS OWN USE AT A HIGHER COST. SUCH A SITUATION, OBVIOUSLY, SHOULD NOT BE ALLOWED TO OCCUR.

THEREFORE, THE PROPOSED PROCEDURE SHOULD BE MODIFIED TO INSURE THAT THE BUREAU WILL NOT ACQUIRE FOR TRANSFER TO A STATE AGENCY ANY EXCESS PROPERTY NEEDED BY ANOTHER FEDERAL AGENCY FOR ITS OWN USE; THAT IS, TO GIVE OTHER FEDERAL AGENCIES PRIORITY OVER THE BUREAU OF PUBLIC ROADS IN THE ACQUISITION OF EXCESS PROPERTY WHEN THE BUREAU DESIRES THE PROPERTY NOT FOR ITS OWN USE BUT FOR TRANSFER TO STATE COOPERATING AGENCIES.