B-134332, DECEMBER 30, 1957, 37 COMP. GEN. 443

B-134332: Dec 30, 1957

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

1957: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 4. REQUESTING ADVICE AS TO WHETHER THE GENERAL SERVICES ADMINISTRATION IS CONSIDERED TO HAVE THE AUTHORITY TO MAKE THE CERTIFICATION PROVIDED FOR IN SECTION 278B. WHERE IT IS DESIRED TO EXCEPT THE TRANSACTION FROM THE LIMITATIONS IMPOSED BY SECTION 278A. PROVIDES THAT THE ABOVE LIMITATIONS OF THE ECONOMY ACT "SHALL NOT APPLY DURING WAR OR A NATIONAL EMERGENCY DECLARED BY CONGRESS OR BY THE PRESIDENT TO SUCH LEASES OR RENEWALS OF EXISTING LEASES OF PRIVATELY OR PUBLICLY OWNED PROPERTY AS ARE CERTIFIED BY THE SECRETARY OF THE ARMY OR THE SECRETARY OF THE NAVY. YOU STATE THAT THERE HAVE BEEN INSTANCES BOTH BEFORE AND SINCE THE EFFECTIVE DATE OF REORGANIZATION PLAN NO. 18 WHERE GSA HAD TRANSFERRED TO IT.

B-134332, DECEMBER 30, 1957, 37 COMP. GEN. 443

LEASES - RENT LIMITATION EXEMPTIONS - GENERAL SERVICES ADMINISTRATION - STATUTORY CONSTRUCTION THE CERTIFICATION AUTHORIZED TO BE MADE BY THE SECRETARIES OF THE ARMY AND THE NAVY UNDER 40 U.S.C. 278B TO EXEMPT LEASES FOR NATIONAL EMERGENCY PURPOSES FROM THE RENT LIMITATIONS IN 40 U.S.C. 278A MAY NOT BE REGARDED AS INCONSISTENT WITH THE RIGHT TO ACQUIRE SPACE IN BUILDINGS BY LEASE VESTED IN THE ADMINISTRATOR OF GENERAL SERVICES BY THE SUBSEQUENTLY ADOPTED REORGANIZATION PLAN NO. 18 OF 1950 SO AS TO BE CONSTRUED AS A FUNCTION OF THE ADMINISTRATOR OF GENERAL SERVICES.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, DECEMBER 30, 1957:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 4, 1957, REQUESTING ADVICE AS TO WHETHER THE GENERAL SERVICES ADMINISTRATION IS CONSIDERED TO HAVE THE AUTHORITY TO MAKE THE CERTIFICATION PROVIDED FOR IN SECTION 278B, TITLE 40, U.S.C. IN CONNECTION WITH THE ACQUISITION OF SPACE BY LEASE FOR GOVERNMENT AGENCIES BY GSA, WHERE IT IS DESIRED TO EXCEPT THE TRANSACTION FROM THE LIMITATIONS IMPOSED BY SECTION 278A, TITLE 40, UNITED STATES CODE.

SECTION 322 OF THE ACT OF JUNE 30, 1932, 47 STAT. 412, AS MODIFIED BY SECTION 15 OF TITLE II OF THE ACT OF MARCH 3, 1933, 47 STAT. 1517 (40 U.S.C. SEC. 278A), POPULARLY REFERRED TO AS THE ECONOMY ACT, PROVIDES THAT NO APPROPRIATION SHALL BE OBLIGATED OR EXPENDED FOR THE RENT OF ANY BUILDING OR PART OF A BUILDING TO BE OCCUPIED FOR GOVERNMENT PURPOSES AT A RENTAL IN EXCESS OF THE PER ANNUM RATE OF 15 PERCENTUM OF THE FAIR MARKET VALUE OF THE RENTED PREMISES NOR FOR ALTERATIONS, IMPROVEMENTS, AND REPAIRS OF THE RENTED PREMISES IN EXCESS OF 25 PERCENTUM OF THE AMOUNT OF THE RENT FOR THE FIRST YEAR OF THE RENTAL TERM, OR FOR THE RENTAL TERM IF LESS THAN ONE YEAR, WITH CERTAIN EXCEPTIONS.

THE ACT OF APRIL 28, 1942, C. 249, 56 STAT. 247, AS AMENDED BY SECTION 205 (A) OF TITLE II OF THE ACT OF JULY 26, 1947, 61 STAT. 501 (40 U.S.C. SEC. 278B), PROVIDES THAT THE ABOVE LIMITATIONS OF THE ECONOMY ACT "SHALL NOT APPLY DURING WAR OR A NATIONAL EMERGENCY DECLARED BY CONGRESS OR BY THE PRESIDENT TO SUCH LEASES OR RENEWALS OF EXISTING LEASES OF PRIVATELY OR PUBLICLY OWNED PROPERTY AS ARE CERTIFIED BY THE SECRETARY OF THE ARMY OR THE SECRETARY OF THE NAVY, OR BY SUCH PERSON OR PERSONS AS HE MAY DESIGNATE, AS COVERING PREMISES FOR MILITARY, NAVAL, OR CIVILIAN PURPOSES NECESSARY FOR THE PROSECUTION OF THE WAR OR VITAL IN THE NATIONAL EMERGENCY.'

SECTION 1 OF REORGANIZATION PLAN NO. 18 OF 1950, EFFECTIVE JULY 1, 1950, 64 STAT. 1270, TRANSFERRED TO THE ADMINISTRATOR OF GENERAL SERVICES ALL FUNCTIONS WITH RESPECT TO ACQUIRING SPACE IN BUILDINGS BY LEASE AND ASSIGNING GENERAL PURPOSE SPACE FOR THE USE OF FEDERAL AGENCIES. SPECIFICALLY EXCLUDES SPACE LOCATED IN BUILDINGS IN FOREIGN COUNTRIES, AT MILITARY POSTS, ARSENALS, NAVY YARDS AND SIMILAR DEFENSE INSTALLATIONS, SPACE OCCUPIED BY THE POST OFFICE DEPARTMENT, AND SPACE IN HOSPITALS, LABORATORIES, FACTORIES AND OTHER SPECIAL PURPOSE BUILDINGS.

YOU STATE THAT THERE HAVE BEEN INSTANCES BOTH BEFORE AND SINCE THE EFFECTIVE DATE OF REORGANIZATION PLAN NO. 18 WHERE GSA HAD TRANSFERRED TO IT, OR HAS ENTERED INTO, LEASES FOR THE HOUSING OF ACTIVITIES ESPECIALLY EXEMPTED FROM THE ECONOMY ACT BY SECTION 278B, UPON THE CERTIFICATION OF THE SECRETARY OF THE ARMY OR NAVY, ILLUSTRATIVE OF WHICH IS THE RECENT REQUEST MADE BY THE FEDERAL CIVIL DEFENSE ADMINISTRATION FOR ACQUISITION OF SPACE IN WHICH TO STOCKPILE MEDICAL SUPPLIES IN CASE OF DISASTER. ALSO, YOU STATE:

IT IS THE VIEW OF THIS AGENCY THAT THE AUTHORITY TO MAKE THE CERTIFICATION PROVIDED IN 40 U.S.C. 278B, IN ACQUIRING SPACE IN JUSTIFIABLE CASES SIMILAR TO THE ONE MENTIONED ABOVE, IS A ,FUNCTION WITH RESPECT TO ACQUIRING SPACE BY LEASE" AND ACCORDINGLY MUST BE CONSIDERED TO HAVE BEEN TRANSFERRED TO THIS AGENCY BY REORGANIZATION PLAN NO. 18.

IT IS A CANON OF STATUTORY CONSTRUCTION THAT A LATER STATUTE GENERAL IN ITS TERMS AND NOT EXPRESSLY REPEALING A PRIOR SPECIAL OR SPECIFIC STATUTE WILL BE CONSIDERED AS NOT INTENDED TO AFFECT THE SPECIAL OR SPECIFIC PROVISIONS OF THE EARLIER STATUTE UNLESS THE INTENTION TO EFFECT THE REPEAL IS CLEARLY MANIFESTED OR UNAVOIDABLY IMPLIED BY THE IRRECONCILABILITY OF THE CONTINUED OPERATION OF BOTH, OR UNLESS THERE IS SOMETHING IN THE GENERAL LAW OR IN THE COURSE OF LEGISLATION UPON ITS SUBJECT MATTER THAT MAKES IT MANIFEST THAT THE LEGISLATIVE BODY CONTEMPLATED AND INTENDED TO REPEAL. 50 AM. JUR., STATUTES, SEC. 564. IS ALSO A GENERAL PRINCIPLE OF INTERPRETATION THAT WHERE A STATUTE DIRECTS A THING TO BE DONE IN A PARTICULAR MANNER, OR BY CERTAIN PERSONS, IT WILL ORDINARILY BE HELD TO IMPLY THAT SUCH THING SHALL NOT BE DONE IN ANY OTHER MANNER, OR BY OTHER PERSONS. 50 AM. JUR. 239, STATUTES, SEC. 244.

THE TRANSFER TO THE ADMINISTRATOR OF GENERAL SERVICES BY SECTION 1 OF REORGANIZATION PLAN NO. 18 OF 1950 OF "ALL FUNCTIONS WITH RESPECT TO ACQUIRING SPACE IN BUILDINGS BY LEASE" IS NOT NECESSARILY INCONSISTENT WITH THE RETENTION OF THE RIGHT AND DUTY VESTED IN THE SECRETARIES OF THE ARMY AND NAVY UNDER SECTION 278B TO DETERMINE WHETHER THE FACTS IN A PARTICULAR CASE ARE SUCH AS TO WARRANT THE ISSUANCE OF A CERTIFICATE EXEMPTING THE LEASE TRANSACTION FROM THE LIMITATIONS IMPOSED BY SECTION 322 OF THE ECONOMY ACT. THE FUNCTION OF ISSUING SUCH A CERTIFICATE BEARS SOME RELATION TO THE LEASE SUBSEQUENTLY ENTERED INTO, BUT WE DO NOT REGARD IT AS "A FUNCTION WITH RESPECT TO ACQUIRING SPACE IN BUILDINGS BY LEASE," ANY MORE THAN IS THE FUNCTION OF DETERMINING THAT SPACE IS REQUIRED, WHICH STILL IS TO BE EXERCISED BY SEVERAL AGENCIES. HENCE AND INASMUCH AS THE DETERMINATION TO BE MADE IS THAT THE PREMISES ARE FOR PURPOSES "NECESSARY FOR THE WAR OR VITAL IN THE NATIONAL EMERGENCY," WHICH APPEARS STILL TO BE WITHIN THE PROVINCE OF THE MILITARY DEPARTMENTS, WE PERCEIVE NO BASIS FOR CONCLUDING THAT SECTION 1 OF THE PLAN MODIFIED BY IMPLICATION THE PROVISIONS OF SECTION 278B IN THE MANNER CONTENDED. MOREOVER, SECTION 9 (A) (1) OF THE REORGANIZATION ACT OF 1949, 63 STAT. 203, 5 U.S.C. 133Z-7 (A) (1), PURSUANT TO WHICH REORGANIZATION PLAN NO. 18 OF 1950 WAS SUBMITTED, PROVIDED THAT ANY STATUTE ENACTED BEFORE THE EFFECTIVE DATE OF A REORGANIZATION PLAN "SHALL, EXCEPT TO THE EXTENT RESCINDED, MODIFIED, SUPERSEDED, OR MADE INAPPLICABLE BY OR UNDER AUTHORITY OF LAW OR BY THE ABOLITION OF A FUNCTION, HAVE THE SAME EFFECT AS IF SUCH REORGANIZATION HAD NOT BEEN MADE.'

IT IS THEREFORE OUR CONCLUSION THAT THE GENERAL SERVICES ADMINISTRATION IS WITHOUT AUTHORITY TO MAKE THE CERTIFICATION PROVIDED FOR IN SECTION 278B.