B-141022, DEC. 21, 1960

B-141022, DEC. 21, 1960

TO MR. HARRY A. SEBERT, AUTHORIZED CERTIFYING OFFICER, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION:

THERE HAS BEEN CONSIDERED YOUR REPLY OF SEPTEMBER 12, 1960, SETTING FORTH YOUR REASONS FOR BELIEVING THAT EXCEPTIONS TOTALLING $1,499.25 ORIGINALLY ISSUED AGAINST YOU ON APRIL 17, 1959, AND REISSUED ON SEPTEMBER 18, 1959, SHOULD BE REMOVED.

THE EXCEPTIONS INVOLVED WERE STATED AGAINST SEVERAL VOUCHERS CERTIFIED BY YOU COVERING PAYMENT FOR AIR CONDITIONERS PURCHASED FOR THE COOLING OF OFFICE SPACE IN THE HEADQUARTERS OFFICE OF THE FORMER NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS IN WASHINGTON, D.C. THE EXCEPTIONS WERE STATED BECAUSE THE ACT OF OCTOBER 26, 1942, 56 STAT. 999, AS AMENDED, 40 U.S.C. 317, PROHIBITS THE USE OF APPROPRIATIONS, OTHER THAN THOSE OF THE GENERAL SERVICES ADMINISTRATION, FOR THE PURCHASE OR INSTALLATION OF AIR CONDITIONING EQUIPMENT IN BUILDINGS IN THE DISTRICT OF COLUMBIA WHICH ARE UNDER THE CONTROL OF THE GENERAL SERVICES ADMINISTRATION. THE PROHIBITION, HOWEVER, DOES NOT APPLY IF THE EQUIPMENT IS FOR "SPECIAL LABORATORY, SCIENTIFIC, AND RESEARCH PURPOSES.'

WHILE, ADMITTEDLY, THE AIR CONDITIONERS WERE PURCHASED FOR THE HEADQUARTERS OFFICE WHERE NO LABORATORY ACTIVITIES WERE PERFORMED YOU CONTEND THAT IT DOES NOT NECESSARILY FOLLOW THAT THESE UNITS WERE NOT PURCHASED FOR SCIENTIFIC AND RESEARCH PURPOSES AND THAT YOU COULD NOT REASONABLY HAVE KNOWN THAT THEY WERE NOT FOR USE FOR SUCH PURPOSES INASMUCH AS YOUR AGENCY ENGAGES IN MANY SCIENTIFIC AND RESEARCH PROGRAMS.

ASSUMING, AS CONTENDED BY YOU, THAT THE PURCHASE OF THESE AIR CONDITIONERS WOULD BE PROPER IF FOR "SCIENTIFIC AND RESEARCH PURPOSES" EVEN THOUGH NOT FOR "SPECIAL LABORATORY" USE, WE FAIL TO SEE HOW SUCH INTERPRETATION WOULD SERVE AS A BASIS FOR THE REMOVAL OF THE EXCEPTIONS.

THE PURCHASE ORDERS FOR THE AIR CONDITIONERS SPECIFIED THAT THEY WERE TO BE SHIPPED TO HEADQUARTERS IN WASHINGTON, D.C. THE FACT THAT THE EQUIPMENT WAS NOT ORDERED DIRECTLY FROM HEADQUARTERS SHOULD HAVE RAISED DOUBT AS TO THE LEGALITY OF THE PURCHASE, AND, COUPLED WITH THE FACT THAT THE HEADQUARTERS OFFICE CONTAINED NOTHING BUT OFFICE SPACE AND IN VIEW OF THE STATUTORY PROHIBITION ON THE PURCHASE OF AIR CONDITIONERS, WE CANNOT AGREE THAT YOU REASONABLE COULD HAVE ASSUMED THE PURCHASE TO BE FOR "SCIENTIFIC AND RESEARCH PURPOSES.'

IN OTHER WORDS IT IS OUR VIEW THAT THE ABOVE CIRCUMSTANCES ARE SUCH AS TO RAISE A REASONABLE DOUBT AS TO THE VALIDITY OF THE PURCHASE AND THAT BY THE EXERCISE OF REASONABLE DILIGENCE AND INQUIRY YOU COULD HAVE ASCERTAINED THE TRUE FACTS. IN THIS CONNECTION IT IS NOTED THAT THE PURCHASE REQUESTS SPECIFICALLY CONTAIN ONE OF THE FOLLOWING LEGENDS IN THE SPACE DESCRIBING THE INTENDED USE: "FOR WASHINGTON OFFICE; " "FOR COOLING OF OFFICE SPACE AT HDQ. OFFICES, WASHINGTON, D.C.; " OR "CONDITIONING OF ADDITIONAL OFFICE SPACE AT HDQ. OFFICE, WASHINGTON, D.C.'

YOU REFER ALSO TO THE FACT THAT THE FORMER EXECUTIVE SECRETARY HAS DETERMINED THAT THE AIR CONDITIONERS WERE "NECESSARY TO THE ACCOMPLISHMENT OF THE SCIENTIFIC AND RESEARCH PURPOSES OF THE AGENCY.' HAD THIS CERTIFICATION ACCOMPANIED THE PAYMENT VOUCHERS AND IF THERE WERE NOTHING IN THE VOUCHERS OR ACCOMPANYING PAPERS WHICH MIGHT MAKE SUCH CERTIFICATION APPEAR QUESTIONABLE IT MAY BE THAT THE EXCEPTION PROPERLY MIGHT BE REMOVED. HOWEVER, THIS CERTIFICATION WAS NOT MADE UNTIL AFTER WE HAD QUESTIONED THE PAYMENTS, IT WAS NOT RELIED ON BY YOU, AND IT CLEARLY IS NOT IN ACCORD WITH THE MEANING INTENDED BY THE CONGRESS IN ITS USE OF THE WORDS "SCIENTIFIC AND RESEARCH PURPOSES.' TO GIVE THOSE WORDS THE BROAD CONSTRUCTION URGED BY YOU WOULD COMPLETELY NULLIFY THE EFFECT OF THE PROHIBITION SINCE UNDER SUCH CONSTRUCTION, ANY AGENCY WHICH IS AUTHORIZED TO USE ITS APPROPRIATIONS FOR SCIENTIFIC AND RESEARCH PURPOSES MIGHT THEN USE ITS APPROPRIATIONS TO AIR CONDITION ITS OFFICE SPACE IN WASHINGTON, D.C. IN THIS CONNECTION ATTENTION IS INVITED TO SENATE REPORT NO. 1196, 81ST CONGRESS, WHICH ACCOMPANIED THE HOUSE BILL THAT WAS SUBSEQUENTLY ENACTED OCTOBER 26, 1949, PROVIDING THE EXCEPTION RELATING TO "SPECIAL LABORATORY, SCIENTIFIC AND RESEARCH PURPOSES," WHEREIN IT IS SPECIFICALLY STATED THAT:

"H.R. 5934 WAS INTRODUCED AT THE REQUEST OF THE BUREAU OF PUBLIC BUILDINGS IN ORDER TO MAKE AN EXCEPTION TO EXISTING LAW SO THAT AGENCIES REQUIRING SPECIAL EQUIPMENT FOR THE OPERATION OF THEIR LABORATORIES MAY PROCURE AND INSTALL SUCH EQUIPMENT WITHOUT THE APPROVAL OF THE BUREAU OF PUBLIC BUILDINGS.'

HOUSE REPORT NO. 1366 CONTAINS A SIMILAR STATEMENT.

ACCORDINGLY, IT DOES NOT APPEAR THAT THE FACTS IN THIS CASE ARE SUCH AS TO WARRANT GRANTING YOU RELIEF UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 875, 31 U.S.C. 82C.