B-162704, JANUARY 23, 1968, 47 COMP. GEN. 387

B-162704: Jan 23, 1968

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TO A PRIVATE PARTY TO USE GOVERNMENT-OWNED COMPUTERS ON A REIMBURSABLE BASIS WHEN THE EQUIPMENT IS NOT IN USE BY VA. THE FEASIBILITY OF MAKING ARRANGEMENTS UNDER WHICH GOVERNMENT OWNED ADPE EQUIPMENT MIGHT BE MADE AVAILABLE TO THE PUBLIC DURING PERIODS IN WHICH THE EQUIPMENT IS NOT IN USE IS BEING CONSIDERED BY THE GSA ADMINISTRATOR. YOUR LETTER DISCLOSES THAT THERE IS LOCATED AT THE SOUTHERN RESEARCH SUPPORT CENTER. YOU HAVE FOR CONSIDERATION A REQUEST FROM LITTLE ROCK UNIVERSITY. YOU ALSO HAVE REQUESTS FROM TWO OTHER EDUCATIONAL INSTITUTIONS TO USE THE COMPUTER FACILITIES. YOU ADVISE THAT YOU ARE AWARE THAT UNDER SECTION 759 OF TITLE 40. WHILE YOU POINT OUT THAT THERE IS NO SPECIFIC AUTHORITY UNDER WHICH THE VETERANS ADMINISTRATION CAN ENTER INTO AGREEMENTS FOR THE USE OF GOVERNMENT-OWNED DATA PROCESSING EQUIPMENT BY PRIVATE PARTIES.

B-162704, JANUARY 23, 1968, 47 COMP. GEN. 387

EQUIPMENT - AUTOMATIC DATA PROCESSING SYSTEMS - USE BY PRIVATE PARTIES UPON CONCURRENCE BY THE ADMINISTRATOR OF THE GENERAL SERVICES ADMINISTRATION (GSA), WHO UNDER 40 U.S.C. 759 HAS THE PRIMARY RESPONSIBILITY FOR THE PURCHASE AND UTILIZATION OF AUTOMATIC DATA PROCESSING EQUIPMENT (ADPE) FOR THE FEDERAL GOVERNMENT, THE ADMINISTRATOR OF VETERANS AFFAIRS (VA) OR HIS DESIGNEE MAY GRANT A REVOCABLE LICENSE THAT CONFORMS TO THE CRITERIA ESTABLISHED IN GENERAL ACCOUNTING OFFICE DECISIONS, TO A PRIVATE PARTY TO USE GOVERNMENT-OWNED COMPUTERS ON A REIMBURSABLE BASIS WHEN THE EQUIPMENT IS NOT IN USE BY VA, AND THE FEASIBILITY OF MAKING ARRANGEMENTS UNDER WHICH GOVERNMENT OWNED ADPE EQUIPMENT MIGHT BE MADE AVAILABLE TO THE PUBLIC DURING PERIODS IN WHICH THE EQUIPMENT IS NOT IN USE IS BEING CONSIDERED BY THE GSA ADMINISTRATOR.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, JANUARY 23, 1968:

YOUR LETTER OF OCTOBER 13, 1967, SUBMITS FOR OUR CONSIDERATION AND DECISION THE QUESTION WHETHER THE ADMINISTRATOR OF VETERANS AFFAIRS, OR HIS DESIGNEE, MAY GRANT REVOCABLE LICENSE TO A PRIVATE PARTY TO USE GOVERNMENT-OWNED COMPUTERS ON A REIMBURSABLE BASIS WHEN NOT IN USE BY THE VETERANS ADMINISTRATION.

YOUR LETTER DISCLOSES THAT THERE IS LOCATED AT THE SOUTHERN RESEARCH SUPPORT CENTER, VETERANS ADMINISTRATION HOSPITAL, LITTLE ROCK, ARKANSAS, AN IBM 1620 COMPUTER. CURRENTLY, YOU HAVE FOR CONSIDERATION A REQUEST FROM LITTLE ROCK UNIVERSITY, FOR THE USE OF THE COMPUTER FOR EDUCATIONAL PURPOSES NOT TO EXCEED 5 HOURS PER MONTH ON A REIMBURSEMENT BASIS. ADDITION, YOU ALSO HAVE REQUESTS FROM TWO OTHER EDUCATIONAL INSTITUTIONS TO USE THE COMPUTER FACILITIES. YOU STATE THAT THE REQUESTED USE BY THE UNIVERSITY WOULD NOT INTERFERE WITH THE RESEARCH SUPPORT CENTER'S UTILIZATION OF THE COMPUTER.

YOU ADVISE THAT YOU ARE AWARE THAT UNDER SECTION 759 OF TITLE 40, U.S.C. THE ADMINISTRATOR OF THE GENERAL SERVICES ADMINISTRATION (GSA) HAS THE PRIMARY RESPONSIBILITY FOR THE PURCHASE AND UTILIZATION OF AUTOMATIC DATA PROCESSING EQUIPMENT FOR THE FEDERAL GOVERNMENT; AND THAT THE AVAILABILITY OF COMPUTER TIME ON THIS COMPUTER HAS BEEN PROPERLY REPORTED TO THE GENERAL SERVICES ADMINISTRATION (FORMS GSA 2068 A AND B), AND THERE HAS BEEN NO REQUEST FOR UTILIZATION BY ANY OTHER FEDERAL AGENCY.

WHILE YOU POINT OUT THAT THERE IS NO SPECIFIC AUTHORITY UNDER WHICH THE VETERANS ADMINISTRATION CAN ENTER INTO AGREEMENTS FOR THE USE OF GOVERNMENT-OWNED DATA PROCESSING EQUIPMENT BY PRIVATE PARTIES, YOU EXPRESS THE IDEA THAT IT WOULD APPEAR THAT SUCH AN ARRANGEMENT WOULD BE CONSISTENT WITH THE INTENT OF CONGRESS EXPRESSED IN SECTION 5053 OF TITLE 38, U.S.C. WHICH AUTHORIZES THE ADMINISTRATOR OF THE VETERANS ADMINISTRATION BY CONTRACT OR OTHER AGREEMENT TO SHARE AND EXCHANGE SPECIALIZED MEDICAL RESOURCES WITH PUBLIC AND PRIVATE HOSPITALS IN THE MEDICAL COMMUNITY. MOREOVER, YOU STATE THE PROPOSED REVOCABLE LICENSE ON A REIMBURSABLE BASIS WOULD BE AN EXTENSION OF THE TYPE OF LICENSING ARRANGEMENT APPROVED BY US IN OUR DECISION OF JUNE 24, 1965, 44 COMP. GEN. 824. HOWEVER, YOU FEEL THAT AS WE HAVE NOT GIVEN SPECIFIC APPROVAL TO SUCH LICENSING AGREEMENTS IN THE INSTANT AREA, OUR VIEWS SHOULD BE SOUGHT BEFORE SUCH AN AGREEMENT IS CONSUMMATED.

AS WE STATED IN 44 COMP. GEN. 824, THERE ARE MANY DECISIONS OF THIS OFFICE AND OF THE ATTORNEY GENERAL OF THE UNITED STATES RELATIVE TO GRANTING REVOCABLE LICENSES FOR THE USE OF GOVERNMENT PROPERTY UNDER CERTAIN CIRCUMSTANCES AND CONDITIONS. SEE, FOR EXAMPLE, 38 COMP. GEN. 36; 36 ID. 561; 25 ID. 909; B-57383, FEBRUARY 25, 1947; 34 OP. ATTY. GEN. 320; 30 ID. 470; 22ID. 240. SUCH DECISIONS HAVE HELD GENERALLY THAT THE HEAD OF A GOVERNMENT DEPARTMENT OR AGENCY HAS AUTHORITY TO GRANT TO A PRIVATE INDIVIDUAL OR BUSINESS A REVOCABLE LICENSE TO USE GOVERNMENT PROPERTY, SUBJECT TO TERMINATION AT ANY TIME AT THE WILL OF THE GOVERNMENT, PROVIDED THAT SUCH USE DOES NOT INJURE THE PROPERTY IN QUESTION AND SERVES SOME PURPOSE USEFUL OR BENEFICIAL TO THE GOVERNMENT ITSELF. THE ATTORNEY GENERAL HAS STATED THAT THE QUESTION AS TO WHETHER THE GRANTING OF SUCH A LICENSE IN ANY GIVEN CASE IS BENEFICIAL TO THE GOVERNMENT IS FOR THE EXERCISE OF THE JUDGMENT OF THE OFFICIAL VESTED WITH THE POWER TO GRANT, RATHER THAN A QUESTION OF LAW TO BE DETERMINED IN ADVANCE BY THE LAW OFFICERS OF THE GOVERNMENT. 30 OP. ATTY. GEN. 470, 482.

HOWEVER, SINCE--- AS INDICATED IN YOUR LETTER--- UNDER PUBLIC LAW 89-306, 79 STAT. 1127, THE ADMINISTRATOR OF THE GENERAL SERVICES ADMINISTRATION HAS THE PRIMARY RESPONSIBILITY FOR THE PURCHASE AND UTILIZATION OF AUTOMATIC DATA PROCESSING EQUIPMENT, WE REQUESTED AN EXPRESSION OF HIS VIEWS IN THE MATTER.

THE ADMINISTRATOR OF THE GENERAL SERVICES ADMINISTRATION BY LETTER DATED DECEMBER 12, 1967, REPLIED TO US AS FOLLOWS:

PUBLIC LAW 89-306 VESTED IN THE GENERAL SERVICES ADMINISTRATION CONSIDERABLE AUTHORITY WITH REGARD TO GOVERNMENT-WIDE MANAGEMENT OF AUTOMATIC DATA PROCESSING EQUIPMENT (ADPE). OUR INTEREST IN THE QUESTION ASKED BY VA EXTENDS, THEREFORE, NOT ONLY TO THE LEGAL ISSUES INVOLVED BUT TO QUESTIONS OF MANAGEMENT POLICY.

WE HAVE FOR SOME TIME BEEN CONSIDERING THE POSSIBILITY OF MAKING ARRANGEMENTS UNDER WHICH GOVERNMENT-OWNED ADPE MIGHT BE MADE AVAILABLE TO THE PUBLIC, DURING PERIODS IN WHICH IT IS NOT IN USE. ALTHOUGH OUR PRELIMINARY ANALYSES OF THE PROBLEM INDICATED THAT SUCH ARRANGEMENTS CAN LEGALLY BE MADE, WE HAVE NOT AS YET DETERMINED THAT THEY WOULD NECESSARILY BEST SERVE THE GOVERNMENT'S INTERESTS.

WE ARE INCLINED TO BELIEVE, FOR EXAMPLE, THAT THE EXISTENCE OF COMPUTER TIME, EXCESS TO THE NEEDS OF ALL FEDERAL AGENCIES, REFLECTS, AT LEAST IN PART, THE FACT THAT THE GOVERNMENT'S ADP NEEDS MIGHT BE SERVED BY LESS HARDWARE THAN IS PRESENTLY INSTALLED. IT MIGHT BE FAR MORE EFFICIENT IN CASES IN WHICH SUBSTANTIAL AMOUNTS OF EXCESS TIME WERE AVAILABLE, TO ESTABLISH A COMPUTER CENTER WHICH COULD OPERATE FULL TIME AND SERVE THE NEEDS OF SEVERAL AGENCIES, WITH LESS EQUIPMENT.

HOWEVER, EVEN IN CASES IN WHICH SATISFACTORY ARRANGEMENTS FOR JOINT USE OF ADPE COULD NOT BE MADE, MANY FACTORS WOULD HAVE TO BE CONSIDERED BEFORE A SALE TO THE GENERAL PUBLIC COULD BE MADE. SOME OF THESE FACTORS ARE: 1. THE METHODS BY WHICH GOVERNMENT COSTS, WHICH SHOULD BE RECOVERED IN ANY RENTAL ARRANGEMENT SHOULD BE COMPUTED. 2. THE EXTENT TO WHICH THE COSTS OF SUPPORT SERVICES INCIDENT TO THE RENTAL, SUCH AS LIGHT, HEAT AND SUPERVISION, MIGHT BE CREDITED TO THE APPROPRIATIONS FROM WHICH SUCH COSTS ARE PAID. 3. THE METHODS BY WHICH AVAILABLE TIME WOULD BE SCREENED THROUGH FEDERAL AGENCIES AND ELIGIBLE DONEES. 4. THE POSSIBILITY THAT THE EQUIPMENT MIGHT BE DAMAGED BY THE USER. 5. THE EXTENT OF THE GOVERNMENT'S RESPONSIBILITY FOR INJURIES TO THIRD PARTIES DURING PERIODS IN WHICH PRIVATE PARTIES USE THE EQUIPMENT. 6. THE METHODS BY WHICH AND TERMS UNDER WHICH SALES OR SURPLUS TIME COULD BE EFFECTED.

SINCE WE CANNOT BE CERTAIN, FROM THE INFORMATION FURNISHED BY VA, THAT ALL OF THESE MATTERS HAVE BEEN CONSIDERED, WE ARE NOT IN A POSITION TO CONCUR IN THE PROPOSAL AT THIS TIME. WE THEREFORE PROPOSE TO CONTACT VA AND EXAMINE IN MORE DETAIL THE FEASIBILITY OF THEIR PROPOSAL, AND IF FOUND TO BE FEASIBLE, DEVELOP SUITABLE PLANS FOR PUTTING IT INTO EFFECT.

IN LIGHT OF THE FOREGOING YOU ARE ADVISED THAT IF THE ADMINISTRATOR OF GSA SUBSEQUENTLY CONCURS IN YOUR PROPOSAL, WE WOULD NOT OBJECT TO YOU, OR YOUR DESIGNEE, GRANTING A REVOCABLE LICENSE TO A PRIVATE PARTY TO USE GOVERNMENT-OWNED COMPUTERS ON A REIMBURSABLE BASIS WHEN NOT IN USE BY THE VETERANS ADMINISTRATION, PROVIDED THAT SUCH LICENSE CONFORMS TO THE CRITERIA SET OUT IN THE DECISIONS CITED.