B-157885, NOV. 8, 1965

B-157885: Nov 8, 1965

Additional Materials:

Contact:

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

 

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

000 AND 34 ACRES HAVE ALREADY BEEN CONVEYED. THAT TITLE TO THE REMAINING 91 ACRES IS STILL IN THE UNITED STATES AND $255. TWO ACRES ARE TO BE CONVEYED TO THE BOARD. THAT THE 34 ACRES SO FAR CONVEYED TO THE BOARD HAVE BEEN RECONVEYED BY THE BOARD TO NOVA UNIVERSITY. YOUR LETTER DISCLOSES THAT NOVA UNIVERSITY IS PART OF AN EDUCATIONAL COMPLEX REFERRED TO AS THE SOUTH FLORIDA EDUCATION CENTER. YOU STATE THAT NOVA UNIVERSITY REQUIRES THE 91 ACRES WHICH HAVE NOT YET BEEN CONVEYED UNDER THE CONTRACT OF SALE WITH THE BOARD. WE REITERATED THEREIN THAT THE PRINCIPLE THAT NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO GIVE AWAY OR SURRENDER A VESTED RIGHT OR MODIFY THE TERMS OF A CONTRACT IF SUCH ACTION IS PREJUDICIAL TO THE UNITED STATES WAS NOT FOR APPLICATION WHERE STATUTORY AUTHORITY EXISTS FOR THE TRANSFER OF PROPERTY WITHOUT COMPENSATION AND THE APPROPRIATE DETERMINATION REQUIRED (BY THE STATUTE) TO MAKE SUCH TRANSFER HAS BEEN MADE.

B-157885, NOV. 8, 1965

TO THE HONORABLE LAWSON B. KNOTT, JR., ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

YOUR LETTER OF OCTOBER 19, 1965, CONCERNS A CONTRACT DATED NOVEMBER 13, 1963, WHEREBY THE UNITED STATES, ACTING BY AND THROUGH THE ADMINISTRATOR OF GENERAL SERVICES, AGREED TO SELL, AND THE BOARD OF PUBLIC INSTRUCTION OF BROWARD COUNTY (BOARD), FORT LAUDERDALE, FLORIDA, AGREED TO PURCHASE, 125 ACRES OF LAND AT A PRICE OF $375,000.

YOUR LETTER DISCLOSES THAT THE BOARD HAS PAID $120,000 AND 34 ACRES HAVE ALREADY BEEN CONVEYED; AND THAT TITLE TO THE REMAINING 91 ACRES IS STILL IN THE UNITED STATES AND $255,000 OF THE PURCHASE PRICE REMAINS UNPAID. YOU ADVISE THAT UNDER THE CONTRACT 34 QUARTERLY PAYMENTS OF $7,500 EACH, PLUS INTEREST, REMAIN TO BE MADE, BEGINNING WITH THE PAYMENT DUE AUGUST 13, 1965, WHICH HAS BEEN DEFERRED PENDING OUR CONSIDERATION OF THE QUESTION PRESENTED IN YOUR LETTER. YOU STATE THAT UPON THE MAKING OF EACH SUCH QUARTERLY PAYMENT, TWO ACRES ARE TO BE CONVEYED TO THE BOARD.

YOU REPORT THAT THE MONEY FOR THE PAYMENTS MADE TO DATE HAS BEEN FURNISHED TO THE BOARD BY THE NOVA UNIVERSITY OF ADVANCED TECHNOLOGY, A PRIVATE, NONPROFIT UNIVERSITY, AND THAT THE 34 ACRES SO FAR CONVEYED TO THE BOARD HAVE BEEN RECONVEYED BY THE BOARD TO NOVA UNIVERSITY. YOUR LETTER DISCLOSES THAT NOVA UNIVERSITY IS PART OF AN EDUCATIONAL COMPLEX REFERRED TO AS THE SOUTH FLORIDA EDUCATION CENTER; THAT THE CAMPUS OF THE CENTER INCLUDES PUBLIC SCHOOLS FROM THE PRESCHOOL LEVEL THROUGH A JUNIOR COLLEGE, BUILT OR TO BE BUILT BY THE BOARD OF PUBLIC INSTRUCTION OF BROWARD COUNTY, AND A UNIVERSITY TO BE CONSTRUCTED BY NOVA UNIVERSITY.

YOU STATE THAT NOVA UNIVERSITY REQUIRES THE 91 ACRES WHICH HAVE NOT YET BEEN CONVEYED UNDER THE CONTRACT OF SALE WITH THE BOARD. IT HAS BEEN PROPOSED THAT GENERAL SERVICES ADMINISTRATION (GSA) AGREE WITH THE BOARD TO CANCEL, AT NO COST TO EITHER PARTY, THE CONTRACT OF SALE WITH RESPECT TO THE REMAINING 91 ACRES AND THE UNPAID PURCHASE PRICE OF $255,000, AND THAT THEREUPON THE 91 ACRES BE ASSIGNED BY GSA TO THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) FOR CONVEYANCE TO NOVA UNIVERSITY AT A PUBLIC BENEFIT ALLOWANCE PURSUANT TO SECTION 203 (K) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 40 U.S.C. 484 (K).

YOU, IN EFFECT, REQUEST A DECISION AS TO WHETHER WE WOULD INTERPOSE ANY OBJECTION TO THE CANCELLATION OF THE CONTRACT BETWEEN GSA AND THE BOARD WITH RESPECT TO THE 91 ACRES SO THAT THE PROPERTY MAY BE ASSIGNED TO HEW FOR CONVEYANCE BY SUCH AGENCY TO THE BOARD UNDER THE APPLICABLE PROVISIONS OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED.

AS INDICATED IN YOUR LETTER, WE HELD IN 40 COMP. GEN. 455, THAT CERTAIN PROPERTY COULD BE CONVEYED TO THE VALLEJO UNIFIED SCHOOL DISTRICT AT A PUBLIC BENEFIT ALLOWANCE PURSUANT TO SECTION 203 (K) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, EVEN THOUGH THE DISTRICT HAD ENTERED INTO A CONTRACT TO PURCHASE THE PROPERTY FROM THE GOVERNMENT. WE REITERATED THEREIN THAT THE PRINCIPLE THAT NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO GIVE AWAY OR SURRENDER A VESTED RIGHT OR MODIFY THE TERMS OF A CONTRACT IF SUCH ACTION IS PREJUDICIAL TO THE UNITED STATES WAS NOT FOR APPLICATION WHERE STATUTORY AUTHORITY EXISTS FOR THE TRANSFER OF PROPERTY WITHOUT COMPENSATION AND THE APPROPRIATE DETERMINATION REQUIRED (BY THE STATUTE) TO MAKE SUCH TRANSFER HAS BEEN MADE. SEE B 81135, DECEMBER 15, 1948.

SECTION 203 (K) (1) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 40 U.S.C. 484 (K) (1), PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/1) UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, THE ADMINISTRATOR IS AUTHORIZED, IN HIS DISCRETION, TO ASSIGN TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE FOR DISPOSAL SUCH SURPLUS REAL PROPERTY, INCLUDING BUILDINGS, FIXTURES, AND EQUIPMENT SITUATED THEREON, AS IS RECOMMENDED BY THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE AS BEING NEEDED FOR SCHOOL, CLASSROOM, OR OTHER EDUCATIONAL USE, OR FOR USE IN THE PROTECTION OF PUBLIC HEALTH, INCLUDING RESEARCH.

"/A) SUBJECT TO THE DISAPPROVAL OF THE ADMINISTRATOR WITHIN THIRTY DAYS AFTER NOTICE TO HIM BY THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE OF A PROPOSED TRANSFER OF PROPERTY FOR SCHOOL, CLASSROOM, OR OTHER EDUCATIONAL USE, THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, THROUGH SUCH OFFICERS OR EMPLOYEES OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE AS HE MAY DESIGNATE, MAY SELL OR LEASE SUCH REAL PROPERTY, INCLUDING BUILDINGS, FIXTURES, AND EQUIPMENT SITUATED THEREON, FOR EDUCATIONAL PURPOSES TO THE STATES AND THEIR POLITICAL SUBDIVISIONS AND INSTRUMENTALITIES, AND TAX-SUPPORTED EDUCATIONAL INSTITUTIONS, AND TO OTHER NONPROFIT EDUCATIONAL INSTITUTIONS WHICH HAVE BEEN HELD EXEMPT FROM TAXATION UNDER SECTION 101 (6) OF TITLE 26.

"/C) IN FIXING THE SALE OR LEASE VALUE OF PROPERTY TO BE DISPOSED OF UNDER SUBPARAGRAPH (A) AND SUBPARAGRAPH (B) OF THIS PARAGRAPH, THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE SHALL TAKE INTO CONSIDERATION ANY BENEFIT WHICH HAS ACCRUED OR MAY ACCRUE TO THE UNITED STATES FROM THE USE OF SUCH PROPERTY BY ANY SUCH STATE, POLITICAL SUBDIVISION, INSTRUMENTALITY, OR INSTITUTION.'

IT IS CLEAR FROM THE QUOTED PROVISIONS OF LAW THAT STATUTORY AUTHORITY EXISTS FOR THE SECRETARY OF HEW TO CONVEY SURPLUS REAL PROPERTY TO CERTAIN NONPROFIT EDUCATIONAL INSTITUTIONS, SUBJECT TO THE DISAPPROVAL OF THE ADMINISTRATOR OF GENERAL SERVICES. AS WAS THE CASE IN 40 COMP. GEN. 445, THE DEED TO THE 91 ACRES IN THE INSTANT CASE HAS NOT BEEN DELIVERED BY GSA TO THE BOARD NOR HAS THE PURCHASE PRICE BEEN PAID BY THE BOARD FOR THIS PORTION OF THE LAND. THUS, TITLE TO THE 91 ACRES IS STILL IN THE UNITED STATES. WHILE IN THE INSTANT CASE THE CONTRACT PURCHASER (THE BOARD) MAY NOT BE ELIGIBLE FOR A PUBLIC BENEFIT TRANSFER UNDER SECTION 203 (K) (1) FOR UNIVERSITY PURPOSES, YOU ADVISE THAT NOVA UNIVERSITY IS ELIGIBLE AND THAT THE TRANSFER WOULD BE MADE BY HEW TO THE UNIVERSITY. MOREOVER, WE UNDERSTAND THAT IF THE CONTRACT PURCHASER ACQUIRED THE 91 ACRES IT WOULD CONVEY THE 91 ACRES TO THE UNIVERSITY AND THE UNIVERSITY WOULD PAY THE CONTRACT PURCHASER THE ACQUISITION COST OF THE PROPERTY.

IN LIGHT OF ALL THE FACTS AND CIRCUMSTANCES WE WOULD INTERPOSE NO OBJECTION IN THE INSTANT CASE TO GSA AGREEING WITH THE BOARD TO CANCEL, AT NO COST TO EITHER PARTY, THE CONTRACT OF SALE BETWEEN GSA AND THE BOARD WITH RESPECT TO THE REMAINING 91 ACRES AND THE UNPAID PURCHASE PRICE OF $255,000, SO THAT THE LAND MAY BE ASSIGNED TO HEW FOR CONVEYANCE BY SUCH AGENCY TO NOVA UNIVERSITY UNDER THE APPLICABLE PROVISION OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED.