B-138264, JULY 10, 1962, 42 COMP. GEN. 21

B-138264: Jul 10, 1962

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WILL BE REGARDED AS AUTHORITY FOR TRANSFER BY THE DEPARTMENT OF THE NAVY OF EXCESS REAL PROPERTY IN GUAM TO OTHER FEDERAL AGENCIES AND IN THE ABSENCE OF ANY PROVISION REGARDING THE EXTENT OF REIMBURSEMENT IN PROPERTY TRANSFERS BETWEEN FEDERAL AGENCIES. THE TERMS AND CONDITIONS OF SUCH DISPOSAL ARE FOR DETERMINATION BY THE AGENCY IN CONTROL OF THE PROPERTY AND TRANSFERS WITHOUT REIMBURSEMENT MAY BE MADE. 1962: REFERENCE IS MADE TO LETTER OF JUNE 11. THE ADMINISTRATOR OF GENERAL SERVICES IS EXPRESSLY AUTHORIZED. THE ASSISTANT SECRETARY REQUESTS ADVICE AS TO WHETHER THE DEPARTMENT OF THE NAVY IS AUTHORIZED UNDER THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949. PLACES UPON THE ADMINISTRATOR OF GENERAL SERVICES THE RESPONSIBILITY TO PRESCRIBE POLICIES AND METHODS TO PROMOTE THE EFFECTIVE USE IN THE EXECUTIVE ESTABLISHMENT OF PROPERTY LOCATED IN THE UNITED STATES WHICH IS EXCESS TO THE NEEDS OF A PARTICULAR AGENCY AND ALSO TO PROVIDE FOR THE TRANSFER OF SUCH PROPERTY AMONG THE FEDERAL AGENCIES HAVING A NEED THEREFOR.

B-138264, JULY 10, 1962, 42 COMP. GEN. 21

PROPERTY - PUBLIC - SURPLUS - TRANSFER TO GOVERNMENT AGENCIES - REIMBURSEMENT FOREIGN AREAS ALTHOUGH THE AUTHORITY FOR THE DISPOSAL OF FOREIGN EXCESS PROPERTY IN SECTION 402 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 DOES NOT CONTAIN ANY PROVISION FOR TRANSFERS OF PROPERTY BETWEEN FEDERAL AGENCIES IN FOREIGN AREAS, THE BROAD POWERS GIVEN TO AGENCIES UNDER SECTION 402 OF THE ACT TO DISPOSE OF SUCH PROPERTY AS WELL AS THE PRIMARY OBJECTIVE OF THE ACT TO ENABLE MAXIMUM USE BY THE GOVERNMENT OF ITS OWN PROPERTY, WILL BE REGARDED AS AUTHORITY FOR TRANSFER BY THE DEPARTMENT OF THE NAVY OF EXCESS REAL PROPERTY IN GUAM TO OTHER FEDERAL AGENCIES AND IN THE ABSENCE OF ANY PROVISION REGARDING THE EXTENT OF REIMBURSEMENT IN PROPERTY TRANSFERS BETWEEN FEDERAL AGENCIES, THE TERMS AND CONDITIONS OF SUCH DISPOSAL ARE FOR DETERMINATION BY THE AGENCY IN CONTROL OF THE PROPERTY AND TRANSFERS WITHOUT REIMBURSEMENT MAY BE MADE.

TO THE SECRETARY OF THE NAVY, JULY 10, 1962:

REFERENCE IS MADE TO LETTER OF JUNE 11, 1962, FROM THE ASSISTANT SECRETARY OF THE NAVY (INSTALLATIONS AND LOGISTICS), CONCERNING THE AUTHORITY OF THE DEPARTMENT OF THE NAVY, UNDER THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 63 STAT. 377, 40 U.S.C. 471, TO TRANSFER EXCESS REAL PROPERTY IN GUAM TO OTHER FEDERAL AGENCIES WITHOUT REIMBURSEMENT THEREFOR.

THE ASSISTANT SECRETARY STATES THAT WHEREAS TITLE IV OF THE CITED ACT (40 U.S.C. 511), MAKES EACH EXECUTIVE AGENCY RESPONSIBLE FOR THE DISPOSAL OF ITS FOREIGN EXCESS PROPERTY WHICH INCLUDES THE PROPERTY IN GUAM, IT CONTAINS NO EXPRESS PROVISION WITH RESPECT TO PROPERTY UTILIZATION OR REIMBURSEMENT FOR TRANSFERS OF PROPERTY BETWEEN AGENCIES. IN CONNECTION THEREWITH, HE POINTS OUT THAT TITLE II OF THE ACT PROVIDES IN SECTION 203, 40 U.S.C. 484, FOR THE DISPOSAL OF SURPLUS PROPERTY AND SEPARATELY UNDER SECTION 202 FOR PROPERTY UTILIZATION.

BY THE TERMS OF SAID SECTION 202 (40 U.S.C. 483), THE ADMINISTRATOR OF GENERAL SERVICES IS EXPRESSLY AUTHORIZED, WITH THE APPROVAL OF THE DIRECTOR OF THE BUREAU OF THE BUDGET, TO PRESCRIBE THE EXTENT OF REIMBURSEMENT FOR TRANSFERS OF EXCESS PROPERTY BETWEEN FEDERAL AGENCIES. THE REGULATION ISSUED WITH REFERENCE THERETO, NAMELY GSA REG. 2-IV-202.07, LIMITS SUCH TRANSFERS OF EXCESS REAL PROPERTY WITHIN THE STATES, THE DISTRICT OF COLUMBIA, PUERTO RICO AND THE VIRGIN ISLANDS. IN VIEW OF THIS SITUATION, THE ASSISTANT SECRETARY REQUESTS ADVICE AS TO WHETHER THE DEPARTMENT OF THE NAVY IS AUTHORIZED UNDER THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, TO TRANSFER EXCESS REAL PROPERTY IN GUAM TO OTHER FEDERAL AGENCIES WITHOUT REIMBURSEMENT, AND THE PROCEDURAL OR OTHER REQUIREMENTS THAT MAY BE APPLICABLE TO SUCH TRANSFERS.

TITLE II OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 40 U.S.C. 481, DEALS WITH THE SUBJECT OF PROPERTY MANAGEMENT. SECTION 202 (A) (40 U.S.C. 483 (A) (, PLACES UPON THE ADMINISTRATOR OF GENERAL SERVICES THE RESPONSIBILITY TO PRESCRIBE POLICIES AND METHODS TO PROMOTE THE EFFECTIVE USE IN THE EXECUTIVE ESTABLISHMENT OF PROPERTY LOCATED IN THE UNITED STATES WHICH IS EXCESS TO THE NEEDS OF A PARTICULAR AGENCY AND ALSO TO PROVIDE FOR THE TRANSFER OF SUCH PROPERTY AMONG THE FEDERAL AGENCIES HAVING A NEED THEREFOR. UNDER THIS SECTION, THE ADMINISTRATOR OF GENERAL SERVICES IS AUTHORIZED, WITH THE APPROVAL OF THE DIRECTOR OF THE BUREAU OF THE BUDGET, TO PRESCRIBE THE EXTENT OF REIMBURSEMENT FOR SUCH TRANSFERS OF EXCESS PROPERTY.

ON THE OTHER HAND, BY THE TERMS OF SECTION 401, TITLE IV OF THAT ACT, 40 U.S.C. 511, EACH EXECUTIVE AGENCY HAVING FOREIGN EXCESS PROPERTY UNDER ITS CONTROL, IS MADE INDIVIDUALLY RESPONSIBLE FOR ITS DISPOSAL,SUBJECT TO CONFORMING WITH THE FOREIGN POLICY OF THE UNITED STATES AND POLICIES ESTABLISHED BY THE PRESIDENT FOR THE EXECUTION OF THIS TITLE. THUS, IT IS CLEAR THAT WHILE THE CITED PROVISIONS OF TITLES II AND IV OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, ARE COMPLEMENTARY IN PURPOSE TO PROVIDE FOR EFFECTIVE MANAGEMENT AND DISPOSITION OF EXCESS PROPERTY, THEY ARE INDEPENDENT OF EACH OTHER FROM THE STANDPOINT OF SCOPE AND OPERATION.

SECTION 402 OF TITLE IV OF THE PROPERTY ACT, 40 U.S.C. 512, RELATING TO THE METHODS AND TERMS OF DISPOSAL PROVIDES THAT FOREIGN EXCESS PROPERTY MAY BE DISPOSED OF BY SALE, EXCHANGE, LEASE OR TRANSFER, FOR CASH, CREDIT, OR OTHER PROPERTY, WITH OR WITHOUT WARRANTY, AND UPON SUCH OTHER TERMS AND CONDITIONS AS THE HEAD OF THE EXECUTIVE AGENCY CONCERNED DEEMS PROPER. SUCH PROPERTY MAY BE DISPOSED OF FOR FOREIGN CURRENCIES OR CREDITS, OR SUBSTANTIAL BENEFITS OR THE DISCHARGE OF CLAIMS RESULTING FROM THE COMPROMISE OR SETTLEMENT OF SUCH CLAIMS BY ANY EXECUTIVE AGENCY IN ACCORDANCE WITH THE LAW, WHENEVER THE HEAD OF THE EXECUTIVE AGENCY CONCERNED DETERMINES THAT IT IS IN THE INTEREST OF THE UNITED STATES TO DO SO.

AS STATED IN THE ASSISTANT SECRETARY'S LETTER, SECTION 402 DOES NOT EXPRESSLY PROVIDE FOR THE TRANSFER OF FOREIGN EXCESS PROPERTY BETWEEN FEDERAL AGENCIES. HOWEVER, THE LEGISLATIVE PROCEEDINGS OF THE SECTION INDICATE THAT THIS MATTER WAS CONSIDERED BY THE CONGRESS. SEE THE STATEMENT ON PAGE 6 OF THE H.REPT. 670, 81ST CONGRESS ON THE BILL (H.R. 4754) WHICH BECAME THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, TO THE EFFECT THAT THE INVENTORY OF SURPLUS PROPERTY IN FOREIGN AREAS WAS SMALL AND THAT "IN MOST CASES THE COST OF TRANSPORTATION BACK TO THIS COUNTRY PROBABLY WOULD EXCEED EITHER THE USE VALUE TO THE GOVERNMENT OR THE SALES RETURN IN THE COMMERCIAL MARKET.' ALSO, IN EXPLAINING THE PROVISIONS OF THE BILL ON THE FLOOR OF THE HOUSE, REPRESENTATIVE HOLIFIELD HAD THIS TO SAY WITH REFERENCE TO THE DISPOSITION OF EXCESS PROPERTY IN FOREIGN AREAS. (95 CONG. REC. 7443 (1949) ).

IN CONSIDERING TITLE IV WE FINE EXCESS PROPERTY LOCATED IN FOREIGN COUNTRIES HAS FAR LESS POTENTIAL FOR GENERAL GOVERNMENT USE THAN PROPERTY PHYSICALLY LOCATED WITHIN THE BORDERS OF UNITED STATES. IN OUR GOVERNMENT, THE ARMED SERVICES ARE THE ONLY SUBSTANTIAL USERS OF PROPERTY IN FOREIGN COUNTRIES. FURTHER, THE COSTS OF TRANSPORTING FOREIGN EXCESS PROPERTY BACK TO THE UNITED STATES AND OF REHABILITATING IT WOULD, IN MOST CASES, EQUAL OR EXCEED ITS VALUE FOR USE BY A CIVILIAN AGENCY HERE. AND, MOST IMPORTANTLY, THE DISPOSAL OF FOREIGN EXCESS PROPERTY TO FOREIGN GOVERNMENTS HAS PROVED IN THE PAST, AND SHOULD CONTINUE TO PROVE IN THE FUTURE, AN EFFECTIVE INSTRUMENT FOR AIDING OUR FOREIGN POLICY. ACCORDINGLY, THIS BILL IN TITLE IV PROVIDES GENERALLY THAT THE RESPONSIBILITY, FOR THE DISPOSITION OF FOREIGN EXCESS PROPERTY, SHALL BE LODGED IN THE AGENCY CHARGED WITH ITS CUSTODY, SUBJECT HOWEVER, TO POLICY GUIDANCE AND DIRECTION BY THE SECRETARY OF STATE.

IT WOULD SEEM APPARENT THAT THE ABSENCE OF EXPRESS AUTHORITY IN THE PROVISIONS OF SECTION 402 TO TRANSFER FOREIGN EXCESS PROPERTY FROM ONE FEDERAL AGENCY TO ANOTHER STEMMED FROM A RECOGNITION OF THE LIMITED GENERAL USE OF SUCH PROPERTY BY FEDERAL AGENCIES OPERATING IN FOREIGN AREAS. THEREFORE, HAVING REGARD FOR THE VERY BROAD POWERS GIVEN TO AGENCIES TO DISPOSE OF SUCH PROPERTY, AND CONSIDERING THAT ONE OF THE PRIMARY OBJECTIVES OF THE PROPERTY ACT IS TO ENABLE THE MAXIMUM UTILIZATION BY THE GOVERNMENT OF ITS OWN PROPERTY, WE SEE NO LEGAL BASIS FOR VIEWING THE PROVISIONS OF SECTION 402 AS PRECLUDING THE TRANSFER OF EXCESS REAL PROPERTY UNDER THE CONTROL OF THE DEPARTMENT OF THE NAVY IN GUAM TO OTHER FEDERAL AGENCIES HAVING A NEED THEREFOR. AND, SINCE THERE IS NOTHING CONTAINED IN THE PROVISIONS OF TITLE IV, WITH REFERENCE TO THE EXTENT OF REIMBURSEMENT REQUIRED FOR TRANSFERS OF EXCESS PROPERTY BETWEEN FEDERAL AGENCIES, IT IS OUR VIEW THAT THE TERMS AND CONDITIONS OF SUCH DISPOSALS ARE FOR DETERMINATION BY THE AGENCY HAVING CONTROL OF THE PROPERTY WITHIN THE BROAD AUTHORITY OF SECTION 402.

ACCORDINGLY, AND IN ANSWER TO THE SPECIFIC QUESTION PRESENTED, WE ARE OF THE OPINION THAT YOUR DEPARTMENT IS AUTHORIZED UNDER THE TERMS OF THE CITED SECTIONS OF TITLE IV OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, TO TRANSFER CONTROL OF EXCESS REAL PROPERTY IN GUAM TO OTHER FEDERAL AGENCIES HAVING A NEED THEREFOR WITHOUT REIMBURSEMENT.