B-146407, OCTOBER 6, 1961, 41 COMP. GEN. 227

B-146407, OCTOBER 6, 1961, 41 COMP. GEN. 227

PROPERTY - PUBLIC - EXCHANGE OR SALE FOR SIMILAR ITEMS - AMBULANCES ALTHOUGH STATION WAGONS CONVERTED FOR USE AS AMBULANCES TO REPLACE USED REGULAR TYPE AMBULANCES ARE STRUCTURALLY DIFFERENT AND BUILT FOR DIFFERENT PURPOSES, WHEN THE STATION WAGONS ARE EQUIPPED FOR USE AS AMBULANCES, THEY ARE REGARDED AS "SIMILAR ITEMS" WITHIN THE MEANING OF SECTION 201 (C) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 40 U.S.C. 481 (C), WHICH AUTHORIZES THE ADMINISTRATOR OF GENERAL SERVICES TO EXCHANGE OR SELL SIMILAR ITEMS OF PERSONAL PROPERTY AND APPLY THE ALLOWANCES OR PROCEEDS TO THE NEWLY ACQUIRED PROPERTY AND WHEN THE CONVERSION WORK IS INCIDENTAL TO THE ACQUISITION OF THE CONVERTED STATION WAGONS, SECTION 201 (C) OF THE ACT DOES NOT REQUIRE ANY DISTINCTION IN THE CASE OF CONVERSION PRIOR TO DELIVERY AND PASSAGE OF TITLE, OR AFTER, SO THAT USED REGULAR TYPE AMBULANCES MAY BE EXCHANGED FOR CONVERTED STATION WAGONS AND THE CONVERSION WORK DONE EITHER BEFORE OR AFTER DELIVERY.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, OCTOBER 6, 1961:

YOUR LETTER OF JULY 11, 1961, WITH AN ENCLOSURE, CONCERNS THE APPLICABILITY OF SECTION 201 (C) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 (40 U.S.C. 481 (C) (, WHICH AUTHORIZES THE EXCHANGE OF SIMILAR ITEMS OF PERSONAL PROPERTY, TO SITUATIONS OF USED REGULAR TYPE AMBULANCES BEING REPLACED WITH STATION WAGONS ADAPTED FOR USE AS AMBULANCES.

YOUR LETTER STATES CURRENT STUDIES HAVE DEMONSTRATED STATION WAGONS MAY BE CONVERTED TO AMBULANCE VEHICLES WITH RELATIVELY LIMITED EFFORT AND ONLY A SMALL EXPENDITURE OF FUNDS, $75 TO $300 PER UNIT; STATION WAGON AMBULANCES ARE SUITABLE FOR MANY OF THE PURPOSES FOR WHICH REGULAR TYPE AMBULANCES ARE USED; AND THE UTILIZATION OF CONVERTED STATION WAGONS INSTEAD OF REGULAR TYPE AMBULANCES WOULD RESULT IN APPRECIABLE SAVINGS, FROM LOWER ACQUISITION COST, LOWER OPERATION AND MAINTENANCE COSTS, AND GREATER RESALE VALUE. AS A RESULT, THE GENERAL SERVICES ADMINISTRATION HAS DEVELOPED A PROGRAM FOR THE USE, WHERE SUITABLE, OF CONVERTED STATION WAGON AMBULANCES INSTEAD OF REGULAR TYPE AMBULANCES.

CONVERSION OF A STATION WAGON TO AN AMBULANCE MAY BE EFFECTED PRIOR TO DELIVERY AND PASSAGE OF TITLE TO THE GOVERNMENT OR SHORTLY THEREAFTER. YOU REQUEST OUR OPINION WHETHER AN EXCHANGE OF A USED REGULAR TYPE AMBULANCE FOR A CONVERTED STATION WAGON AMBULANCE MAY BE AUTHORIZED UNDER SECTION 201 (C):

(1) WHERE THE CONVERSION WORK IS INCIDENTAL TO THE ACQUISITION TRANSACTION AND IS ACCOMPLISHED PRIOR TO THE MAKING OF DELIVERY AND PASSAGE OF TITLE TO THE VEHICLE TO THE GOVERNMENT.

(2) WHERE THE CONVERSION WORK IS INCIDENTAL TO THE ACQUISITION TRANSACTION BUT IS PERFORMED SUBSEQUENT TO THE MAKING OF DELIVERY AND PASSAGE OF TITLE TO THE VEHICLE TO THE GOVERNMENT.

INVOLVED HEREIN IS THE SCOPE OR BREADTH THAT MAY PROPERLY BE ATTRIBUTED TO THE TERM "SIMILAR ITEMS" AS USED IN SECTION 201 (C). THE SECTION PROVIDES THAT IN ACQUIRING PERSONAL PROPERTY,"ANY EXECUTIVE AGENCY, UNDER REGULATIONS TO BE PRESCRIBED BY THE ADMINISTRATOR, MAY EXCHANGE OR SELL SIMILAR ITEMS AND MAY APPLY THE EXCHANGE ALLOWANCE OR PROCEEDS OF SALE IN SUCH CASES IN WHOLE OR IN PART PAYMENT FOR THE PROPERTY ACQUIRED.'

" SIMILAR ITEMS" IS NOT A PRECISE TERM. "A COMPOSITE OF THE DEFINITIONS OF THE WORD "SIMILAR" AS GIVEN IN BLACK'S AND BOUVIER'S LAW DICTIONARIES IS TO THE EFFECT THAT IT MEANS "NEARLY CORRESPONDING; RESEMBLING IN MANY RESPECTS; SOMEWHAT LIKE; HAVING A GENERAL LIKENESS OR SAMENESS IN ALL ESSENTIAL PARTICULARS.' RARELY HAS IT BEEN HELD TO MEAN IDENTICAL, OTHER THAN WHEN APPLIED TO CRIMINAL CASES. THE DEFINITIONS IN THE STANDARD DICTIONARIES ARE TO THE SAME GENERAL EFFECT.' ASSOCIATED TRADERS, INC. V. UNITED STATES, 144 CT.1CL. 744, 169 F.1SUPP. 502, 506.

THE LEGISLATIVE HISTORY OF SECTION 201 (C) DOES NOT REQUIRE A NARROW CONSTRUCTION OF THE TERM ,SIMILAR ITEMS," AND IN THE LIGHT OF THE SECTION'S HISTORY, WE ARE OF THE VIEW THE TERM AFFORDS GENERAL SERVICES ADMINISTRATION A FLEXIBLE STANDARD IN THE PROMULGATION OF REGULATIONS FOR THE PURPOSE OF THE SECTION. THE HOUSE COMMITTEE ON EXPENDITURES IN THE EXECUTIVE DEPARTMENTS IN REPORTING UPON H.R. 4754 (H. REPORT NO. 670), WHICH BECAME THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, STATED WITH REFERENCE TO SECTION 201 (C):

THIS SUBSECTION AUTHORIZES EXECUTIVE AGENCIES TO EXCHANGE OR SELL PERSONAL PROPERTY AND APPLY THE TRADE-IN ALLOWANCE OR PROCEEDS OF SALE IN WHOLE OR PART PAYMENT FOR PROPERTY ACQUIRED. THIS IS AN EXPANSION OF AUTHORITY GIVEN UNDER A NUMBER OF EXISTING STATUTES TO SPECIFIC AGENCIES OR WITH RESPECT TO SPECIFIC TYPES OF PROPERTY. WHILE THESE STATUTES ARE REPEALED BY SECTION 502 (A) (8) TO (28), THE LANGUAGE HERE IS INTENDED TO BE SUFFICIENTLY BROAD TO PRESERVE ALL SUCH EXISTING AUTHORITY. FOR EXAMPLE, THE DEPARTMENT OF AGRICULTURE MAY CONTINUE, SUBJECT, OF COURSE, TO ANY REGULATIONS OF THE ADMINISTRATOR, TO EXCHANGE PUBLICATIONS WITHOUT MONETARY APPRAISAL OR DETAILED LISTING AS IT HAS DONE IN THE PAST UNDER THAT PORTION OF THE ACT OF MARCH 4, 1915 (5 (5 U.S.C. 548), WHICH IS REPEALED BY SECTION 502 (A) (14).

IT MAY ALSO BE MENTIONED THAT A SENATE AMENDMENT, RESTRICTING THE APPLICABILITY OF THE SECTION TO SUCH ITEMS "EXCHANGED AS A GENERAL PRACTICE IN TRADE CHANNELS," WAS DELETED FROM THE BILL AS ENACTED.

A REGULAR TYPE AMBULANCE AND A STATION WAGON ARE BOTH PASSENGER CARRYING VEHICLES. CF. 5 U.S.C. 78. THEY DIFFER STRUCTURALLY IN THAT THE FORMER IS GENERALLY BUILT ON MEDIUM OR HEAVY WEIGHT CHASSIS; ALSO UNLIKE THE MASS PRODUCED STATION WAGON, AMBULANCES ARE GENERALLY BUILT AND EQUIPPED TO ORDER, BY THE MANUFACTURER. BUT THE APPARENT ESSENTIAL DIFFERENCE FOR THE PURPOSE OF SECTION 201 (C) IS THAT AN AMBULANCE IS BUILT AND EQUIPPED FOR SPECIALIZED USE WHEREAS THE STATION WAGON IS BUILT AND EQUIPPED FOR GENERAL PASSENGER USE. HOWEVER, UPON EQUIPPING A STATION WAGON FOR USE AS AN AMBULANCE, IT APPEARS TO US THE CONVERTED VEHICLE MAY PROPERLY BE CLASSIFIED AS AN AMBULANCE FOR TRADE-IN PURPOSES. MOREOVER, WHEN THE CONVERSION WORK IS INCIDENTAL TO ACQUISITION, WE SEE NO SUBSTANTIVE BASIS, FOR THE PURPOSE OF SECTION 201 (C), FOR DISTINGUISHING THE SITUATION OF CONVERSION PRIOR TO DELIVERY AND PASSAGE OF TITLE FROM THAT OF CONVERSION SUBSEQUENT TO DELIVERY AND PASSAGE OF TITLE.

YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE WITH REGARD TO BOTH SITUATIONS PRESENTED, AND YOU ARE ADVISED THAT AN APPROPRIATE REVISION OF THE REGULATIONS PROMULGATED UNDER SECTION 201 (C) WOULD NOT BE OBJECTED TO BY OUR OFFICE.