B-201859.OM, FEB 5, 1981

B-201859.OM: Feb 5, 1981

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O'NEILL: YOUR RECENT MEMORANDUM ASKS WHETHER NATIONAL SCIENCE FOUNDATION (NSF) CONTRACTS WITH SEVERAL NONPROFIT UNIVERSITY ASSOCIATIONS TO MANAGE AND OPERATE THE NATIONAL CENTER FOR ATMOSPHERIC RESEARCH AND FIVE NATIONAL ASTRONOMY CENTERS ARE PROHIBITED BY SECTION 14(C) OF THE NATIONAL SCIENCE FOUNDATION ACT OF 1950. NO HOUSE REPORT WAS SUBMITTED WITH THIS LEGISLATION. THE PROHIBITION WAS NOT IN ISSUE DURING DEBATE ON THE 1950 LEGISLATION AND WAS NOT DISCUSSED OR EXPLAINED IN ANY SUBSTANTIVE WAY. IT WAS. NSF'S CONTRACTS WITH NONPROFIT UNIVERSITY ASSOCIATIONS TO OPERATE THE FACILITIES DO NOT APPEAR TO VIOLATE THE LITERAL LANGUAGE OF THE PROHIBITION SINCE IT IS NOT NSF "ITSELF" WHICH DOES THE OPERATING.

B-201859.OM, FEB 5, 1981

SUBJECT: NATIONAL SCIENCE FOUNDATION'S SUPPORT OF NATIONAL RESEARCH CENTERS (FILE B-201859; CODE 920866)

GROUP DIRECTOR, PAD - PAUL J. O'NEILL:

YOUR RECENT MEMORANDUM ASKS WHETHER NATIONAL SCIENCE FOUNDATION (NSF) CONTRACTS WITH SEVERAL NONPROFIT UNIVERSITY ASSOCIATIONS TO MANAGE AND OPERATE THE NATIONAL CENTER FOR ATMOSPHERIC RESEARCH AND FIVE NATIONAL ASTRONOMY CENTERS ARE PROHIBITED BY SECTION 14(C) OF THE NATIONAL SCIENCE FOUNDATION ACT OF 1950, AS AMENDED, 42 U.S.C. SEC. 1873(C). IN MY OPINION, THEY DO NOT.

SECTION 1873(C) PROVIDES:

"THE FOUNDATION SHALL NOT, ITSELF, OPERATE ANY LABORATORIES OR PILOT PLANTS." FN1

THE SENATE REPORT (NO. 90) ON THIS PROVISION ONLY RESTATES THE PROHIBITION WITHOUT EXPLANATION. SEE 1950 U.S.C. CONG. & ADMIN. NEWS, 2269, 2276. THE CONFERENCE REPORT DID NOT ADDRESS THIS MATTER, ID. 2276, AND NO HOUSE REPORT WAS SUBMITTED WITH THIS LEGISLATION. ID. 2269.

THE PROHIBITION WAS NOT IN ISSUE DURING DEBATE ON THE 1950 LEGISLATION AND WAS NOT DISCUSSED OR EXPLAINED IN ANY SUBSTANTIVE WAY. IT WAS, HOWEVER, MENTIONED IN PASSING. 96 CONG. REC. 2600 (REMARKS OF MR. PRIEST).

WHATEVER THE RATIONALE FOR THE PROHIBITION MAY BE, NSF'S CONTRACTS WITH NONPROFIT UNIVERSITY ASSOCIATIONS TO OPERATE THE FACILITIES DO NOT APPEAR TO VIOLATE THE LITERAL LANGUAGE OF THE PROHIBITION SINCE IT IS NOT NSF "ITSELF" WHICH DOES THE OPERATING. MOREOVER, CONGRESS IS AWARE OF NSF'S CONTRACTING ARRANGEMENTS AND HAS NOT TAKEN EXCEPTION. FOR EXAMPLE, THE SENATE REPORT ON NSF'S 1981 APPROPRIATION NOTES:

"FINALLY, THE FOUNDATION SUPPORTS THROUGH CONTRACTS, A NUMBER OF NATIONAL CENTERS WHERE LARGE FACILITIES ARE MADE AVAILABLE FOR THE USE OF QUALIFIED SCIENTISTS, INCLUDING THE VERY LARGE ARRAY RADIO ASTRONOMY OBSERVATORY, THE NATIONAL RADIO ASTRONOMY OBSERVATORY AND THE NATIONAL CENTER FOR ATMOSPHERIC RESEARCH."

S. REPT. NO. 96-926, 96TH CONG., 2ND SESS. 75 (1979) ON H. R. 7631 (HUD AND CERTAIN INDEPENDENT AGENCY APPROPRIATIONS FOR FY 1981). SEE ALSO, NATIONAL SCIENCE FOUNDATION ANNUAL REPORT 1979 AT 19, 25, 26, AND 29 FOR MENTION OF THESE CONTRACTUAL ARRANGEMENTS.

IF I CAN BE OF FURTHER ASSISTANCE, PLEASE LET ME KNOW.

DIGEST

PROHIBITION OF SECTION 14(C), NATIONAL SCIENCE FOUNDATION ACT OF 1950, 42 U.S.C. SEC. 1873(C) THAT FOUNDATION, "ITSELF," NOT OPERATE ANY LABORATORIES OR PILOT PLANTS IS NOT VIOLATED WHERE FOUNDATION CONTRACTS OUT LABORATORY OPERATIONS AND MANAGEMENT TO UNIVERSITY ASSOCIATIONS.

FN1 THE GENESIS FOR THIS PROVISION MAY HAVE BEEN A PROVISION IN A 1946 BILL WHICH PROVIDED:

"THE ADMINISTRATOR SHALL NOT, HOWEVER, THROUGH THE

FOUNDATION OR ITS OWN EMPLOYEES, OPERATE ANY LABORATORIES, PILOT PLAPILOT PLANTS, OR OTHER SUCH SCIENTIFIC OR TECHNICAL WHICH HE FACILITIES WHICH HE MAY ACQUIRE." SECTION 11(B), S. 1850 (1946)9 (1946).