B-141608, APRIL 26, 1960, 39 COMP. GEN. 723

B-141608: Apr 26, 1960

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CDM 59-17 WAS ISSUED ON DECEMBER 10. 500 WAS ISSUED FOR ALTERATIONS AND IMPROVEMENTS TO BUILDINGS 32 AND 34. YOU SAY THAT BASED ON THE OCDM CERTIFICATION THAT IS 1959 FISCAL YAR APPROPRIATION WAS AVAILABLE FOR REIMBURSEMENT FOR THE WORK COVERED BY THE JOB ORDERS. THE MATERIAL CONTAINED IN THE LEGISLATIVE HISTORY OF THE OCDM APPROPRIATIONS FOR FISCAL YEAR 1959 BOTH OCDM AND THE GENERAL SERVICES ADMINISTRATION HAVE CONCLUDED THAT THE OCDM'S FISCAL YEAR 1959 APPROPRIATION CLEARLY IS LEGALLY AVAILABLE FOR REIMBURSEMENT FOR THE PURPOSE AS INDICATED. IT IS APPARENT FROM THE SPECIFICATIONS FOR THE PROJECTS THAT THE WORK CONTEMPLATED BY JOB ORDERS CDM 59-32 AND CDM 59-33 WILL CONSTITUTE "PUBLIC IMPROVEMENTS" WITHIN THE MEANING OF THOSE WORDS AS USED SECTION 3733.

B-141608, APRIL 26, 1960, 39 COMP. GEN. 723

PUBLIC BUILDINGS - REPAIRS, ETC. - APPROPRIATIONS - SPECIFIC AUTHORIZATION THE PROVISION IN THE INDEPENDENT OFFICERS APPROPRIATION ACT, 1959, MAKING FUNDS AVAILABLE TO CARRY OUT THE FEDERAL CIVIL DEFENSE ACT OF 1950, TOGETHER WITH THE AUTHORITY IN SECTION 201 (H) OF THE ACT, FOR RENOVATION OF FACILITIES FOR CIVIL DEFENSE, SATISFIES THE REQUIREMENT IN SECTION 3733, REVISED STATUTES, 41 U.S.C. 12, WHICH PRECLUDES THE EXECUTION OF CONTRACTS FOR PUBLIC IMPROVEMENTS IN THE ABSENCE OF A SPECIFIC APPROPRIATION; THEREFORE, 1959 FUNDS MAY BE USED TO REIMBURSE THE GENERAL SERVICES ADMINISTRATION FOR WORK INCIDENT TO THE REHABILITATION OF A TRAINING CENTER.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, APRIL 26, 1960:

YOUR LETTER OF DECEMBER 30, 1959, CONCERNS THREE JOB ORDERS ISSUED BY THE OFFICE OF CIVIL AND DEFENSE MOBILIZATION ( OCDM) FOR CERTAIN WORK TO BE PERFORMED BY THE GENERAL SERVICES ADMINISTRATION ON A REIMBURSABLE BASIS.

JOB ORDER NO. CDM 59-17 WAS ISSUED ON DECEMBER 10, 1958, IN THE ESTIMATED AMOUNT OF $5,000 FOR ENGINEERING SERVICES IN DEVELOPING PLANS AND SPECIFICATIONS FOR THE REHABILITATION FOR THE ALAMEDA TRAINING SCHOOL, ALAMEDA, CALIFORNIA. THEREAFTER, ON JUNE 26, 1959, OCDM ISSUED JOB ORDER NO. CDM 59-32 IN THE ESTIMATED AMOUNT OF $55,000 FOR THE REHABILITATION (ALTERATIONS AND IMPROVEMENTS) OF THE SCHOOL. ON THE SAME DAY, JOB ORDER NO. CDM 59-33 IN THE ESTIMATED AMOUNT OF $32,500 WAS ISSUED FOR ALTERATIONS AND IMPROVEMENTS TO BUILDINGS 32 AND 34, OCDM, REGION 7 HEADQUARTERS, SANTA ROSA, CALIFORNIA.

YOU SAY THAT BASED ON THE OCDM CERTIFICATION THAT IS 1959 FISCAL YAR APPROPRIATION WAS AVAILABLE FOR REIMBURSEMENT FOR THE WORK COVERED BY THE JOB ORDERS, YOUR REGIONAL OFFICE, SAN FRANCISCO, PROCEEDED WITH THE PREPARATION OF THE NECESSARY PLANS AND SPECIFICATIONS AND CONTRACTED FOR THE PERFORMANCE OF THE ACTUAL ALTERATION WORK.

IN LETTER DATED NOVEMBER 16, 1959, TO THE REGIONAL COMMISSIONER, GENERAL SERVICES ADMINISTRATION, SAN FRANCISCO, OUR REGIONAL MANAGER CONCLUDED THAT EACH OF THE ABOVE JOBS, IF ACCOMPLISHED, WOULD CONSTITUTE PUBLIC IMPROVEMENTS OF FEDERALLY OWNED BUILDINGS FOR WHICH OCDM HAS NO SPECIFIC FUNDS AVAILABLE IN ITS FISCAL YEAR 1959 APPROPRIATIONS TO REIMBURSE THE GENERAL SERVICES ADMINISTRATION. YOU SAY THAT UPON RECEIPT OF THIS LETTER YOUR REGIONAL OFFICE SUSPENDED WORK ON JOB ORDER NO. CDM 59-33, BUT PROCEEDED ON THE OTHER TWO JOB ORDERS SINCE A BINDING CONTRACT HAD BEEN ENTERED INTO PRIOR TO RECEIPT OF THE LETTER.

YOU SAY THAT IN VIEW OF THE BROAD AUTHORITY IN SECTIONS 401 (C), (E) AND 201 (H) OF THE FEDERAL CIVIL DEFENSE ACT OF 1950, AS AMENDED, 50 U.S.C. APP. 2253 (C), (E) AND 2281 (H), AND THE MATERIAL CONTAINED IN THE LEGISLATIVE HISTORY OF THE OCDM APPROPRIATIONS FOR FISCAL YEAR 1959 BOTH OCDM AND THE GENERAL SERVICES ADMINISTRATION HAVE CONCLUDED THAT THE OCDM'S FISCAL YEAR 1959 APPROPRIATION CLEARLY IS LEGALLY AVAILABLE FOR REIMBURSEMENT FOR THE PURPOSE AS INDICATED, AND, AS SUCH, WITHIN THE PURVIEW OF OUR DECISION OF MAY 13, 1959, 38 COMP. GEN. 758.

IN VIEW OF THE DOUBT, HOWEVER, EXPRESSED BY OUR REGIONAL MANAGER, YOU REQUEST OUR CONCURRENCE IN THE POSITION TAKEN BY THE GENERAL SERVICES ADMINISTRATION AND OCDM.

IT IS APPARENT FROM THE SPECIFICATIONS FOR THE PROJECTS THAT THE WORK CONTEMPLATED BY JOB ORDERS CDM 59-32 AND CDM 59-33 WILL CONSTITUTE "PUBLIC IMPROVEMENTS" WITHIN THE MEANING OF THOSE WORDS AS USED SECTION 3733, REVISED STATUTES, 41 U.S.C. 12. THIS SECTION PROVIDES AS FOLLOWS:

NO CONTRACT SHALL BE ENTERED INTO FOR THE ERECTION, REPAIR, OR FURNISHING OF ANY PUBLIC BUILDING, OR FOR ANY PUBLIC IMPROVEMENT WHICH SHALL BIND THE GOVERNMENT TO PAY A LARGER SUM OF MONEY THAN THE AMOUNT IN THE TREASURY APPROPRIATED FOR THE SPECIFIC PURPOSE. (R.S. SECTION 3733.)

THE DOUBT IN THE MATTER ARISES BECAUSE OF THE ABOVE-QUOTED PROVISION OF LAW.

THE OFFICE OF CIVIL AND DEFENSE MOBILIZATION, HEADED BY A DIRECTOR, WAS CREATED BY CONSOLIDATING THE OFFICE OF DEFENSE MOBILIZATION AND THE FEDERAL CIVIL DEFENSE ADMINISTRATION PURSUANT TO REORGANIZATION PLAN NO. 1 OF 1958, 72 STAT. 1799, AS AMENDED, 72 STAT. 861, 5 U.S.C. 133Z 15 NOTE. SINCE THIS CONSOLIDATION DID NOT BECOME EFFECTIVE UNTIL JULY 1, 1958, SEPARATE APPROPRIATIONS WERE MADE TO THE OFFICE OF DEFENSE MOBILIZATION AND THE FEDERAL CIVIL DEFENSE ADMINISTRATION FOR FISCAL YEAR 1959, BUT, UNDER THE ABOVE-CITED REORGANIZATION ACT, BOTH APPROPRIATIONS WERE AVAILABLE TO OCDM.

SECTION 201 (H) OF THE FEDERAL CIVIL DEFENSE ACT OF 1950, AS AMENDED, 50 U.S.C. APP. 2281 (H), PROVIDES, IN PART, AS FOLLOWS:

THE ADMINISTRATOR IS AUTHORIZED, IN ORDER TO CARRY OUT THE ABOVE MENTIONED PURPOSES, TO---

PROCURE BY CONDEMNATION OR OTHERWISE, CONSTRUCT, LEASE, TRANSPORT, STORE, MAINTAIN, RENOVATE OR DISTRIBUTE MATERIALS AND FACILITIES FOR CIVIL DEFENSE, WITH THE RIGHT TO TAKE IMMEDIATE POSSESSION THEREOF: * * * ( ITALICS SUPPLIED.)

IT IS CLEAR THAT UNDER SECTION 201 (H) THE ADMINISTRATOR IS AUTHORIZED TO RENOVATE "FACILITIES" FOR CIVIL DEFENSE PURPOSES. "FACILITIES" ARE DEFINED IN SECTION 3 (A) OF THE SAME ACT AS INCLUDING BUILDINGS, SHELTERS, UTILITIES AND LAND.

THE INDEPENDENT OFFICES APPROPRIATION ACT, 1959, 72 STAT. 1064, UNDER THE HEADING " FEDERAL CIVIL DEFENSE ADMINISTRATION" SUBHEADING " OPERATIONS," PROVIDES, IN PART, AS FOLLOWS:

FOR NECESSARY EXPENSES, NOT OTHERWISE PROVIDED FOR, IN CARRYING OUT THE PROVISIONS OF THE FEDERAL CIVIL DEFENSE ACT OF 1959, AS AMENDED (50 U.S.C. APP. 2251-2297), * * * $18,500,000: * * * ( ITALICS SUPPLIED.)

IT IS APPARENT THAT THE ABOVE-QUOTED APPROPRIATION LANGUAGE MAKES FUNDS AVAILABLE FOR CARRYING OUT THE PROVISIONS OF THE FEDERAL CIVIL DEFENSE ACT OF 1950, AS AMENDED, INCLUDING THE RENOVATION OF FACILITIES, AS AUTHORIZED BY SECTION 201 (H) OF THAT ACT. THIS WOULD APPEAR TO MEET THE REQUIREMENTS OF SECTION 3733, REVISED STATUTES. MOREOVER, IN CONNECTION WITH THE CITED APPROPRIATION ACT YOUR LETTER INDICATES THAT THE FOLLOWING LINE ITEM APPEARS AT PAGE A-118 (REV.) OF THE OCDM (APPARENTLY THE FEDERAL CIVIL DEFENSE ADMINISTRATION) BUDGET SUBMISSION:

H. CONSTRUCTION CHANGES, RENOVATIONS AND SPACE ADAPTATION--- COMPUTED AT AN APPROXIMATE COST OF $15,000 PER REGION.

ALSO, THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES ON INDEPENDENT OFFICES APPROPRIATIONS FOR 1959, AT PAGES 413, 445, 446, AND 457, DISCLOSE THE FOLLOWING:

MR. HOEGH.

* * * * * * * TO THE TRAINING CENTERS, YOU IN FISCAL YEAR 1958 GAVE US SUFFICIENT MONEY TO SET UP THE PHYSICAL STRUCTURE OF ONE ADDITIONAL TRAINING CENTER. THIS YEAR WE ARE ASKING FOR THE FINANCING OF AN ADDITIONAL TRAINING CENTER AND FOR THE PERSONNEL REQUIRED TO SUPPORT THESE TWO TRAINING CENTERS.

MR. THOMAS. * * * EDUCATION AND TRAINING GOES FROM $2,513,300 FOR 1958 TO $2,700,000 FOR 1959. YOU ARE GOING TO SET UP TWO MORE SCHOOLS, AND THAT IS THE BEST MONEY IN YOUR BUDGET, IF I MAY SAY SO.

MR. HOEGH. YES, SIR.

MR. THOMAS. ALL THE OTHER AGENCIES HAVE TRAVEL, TRANSPORTATION, PRINTING AND REPRODUCTION. WHAT ARE YOUR OTHER CONTRACTUAL SERVICES OF $1,779,300 UNDER 107? WHAT IS THAT?

MR. HOEGH. $508,000 OF THAT IS FOR TRAINING CENTER.

MR. HEFFELFINGER. MR. CHAIRMAN, THAT CAN BE FOUND ON PAGE A-88. AS MR. HOEGH SAID, $508,000 OF THAT IS FOR THE ONE TRAINING CENTER THAT WE WANT TO COMPLETE THIS YEAR.

MR. THOMAS. WELL, YOU HAVE TWO TRAINING CENTERS. WHAT ARE THEY GOING TO COST?

I NOTE YOU HAVE AN INCREASE FOR THE LAUNDERING AND CLEANING SERVICES AS A RESULT OF THE PROGRAM EXPANSION OF QUARTERS AND THE ACCOMMODATIONS FOR ADDITIONAL STUDENTS; RENOVATION OF SPACE IN THE AMOUNT OF $68,000; RENOVATION OF 5 BARRACKS IN THE AMOUNT OF $250,000.

WHERE WILL YOU PUT ALL OF THIS?

MR. HEFFELFINGER. THE SITES HAVE NOT BEEN SELECTED.

MR. THOMAS. HOW DO YOU KNOW ABOUT THE BARRACKS, THEN?

MR. HEFFELFINGER. THESE ARE ESTIMATES WHICH WE OBTAINED FROM THE GENERAL SERVICES ADMINISTRATION AS TO WHAT IT WOULD COST TO RENOVATE A BARRACKS FOR STUDENT QUARTERS.

MR. THOMAS. DO YOU HAVE SOME PARTICULAR PLACE PICKED OUT WHERE THEY HAVE BARRACKS?

MR. HEFFELFINGER. NO, SIR; WE ASSUMED WE COULD PROBABLY GO INTO GOVERNMENT SPACE AND THE MOST AVAILABLE GOVERNMENT SPACE IS OF THE BARRACKS TYPE.

MR. THOMAS. I NOTE YOU HAVE A SPECIAL AREA RENOVATION COST AS WELL AS ENGINEERING AND PLANS AND SPECIFICATIONS, LABOR AND PROPER EQUIPMENT NEEDED TO ADAPT SPACE WHERE SUCH IS NOT AVAILABLE FROM GSA IN THE AMOUNT OF $80,000.

WHAT DOES THAT COVER?

MR. HEFFELFINGER. THAT COVERS MOVEMENT OF PARTITIONS, LABOR, AND ENGINEERING PLANS TO ADAPT REAL PROPERTY. ( ITALICS SUPPLIED.)

IN VIEW OF THE FOREGOING WE WILL NOT OBJECT TO THE OFFICE OF CIVIL AND DEFENSE MOBILIZATION USING FUNDS MADE AVAILABLE TO IT IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1959, TO REIMBURSE THE GENERAL SERVICES ADMINISTRATION FOR THE WORK COVERED BY THE JOB ORDERS IN QUESTION.