B-238868, Jun 1, 1990

B-238868, Jun 1, 1990

DIGEST: Subject: Availability of Unobligated Expired 1988 Appropriations Section 254(b)(1) of the National Defense Authorization Act for fiscal years 1990 and 1991, Pub.L. No. 101-189, 103 Stat. 1352, 1406, which intended to reappropriate unobligated expired funds appropriated for fiscal year 1988 for evaluation of the Bofors Bill weapon system and Milan II weapon system cannot be effected. The Joint Resolution Continuing Appropriations for fiscal year 1988, Pub.L. No. 100-202, 101 Stat 1329-57, 58, neither specifically appropriated nor clearly intended funds for the Bofors Bill and Milan II weapon systems testing.

Evaluator-in-Charge - Noble Holmes:

You have asked whether expired, unspent fiscal 1988 funds appropriated for evaluation of the Army Bofors Bill and Milan weapon systems may be used in fiscal years 1990 and 1991 for testing and evaluation of those systems, as well as the Dragon II weapons system, pursuant to a directive in section 254(b)(1) of the National Defense Authorization Act for fiscal years 1990 and 1991, Pub.L. No. 101-189, 103 Stat. 1352, 1406 (Nov. 29, 1989). For the reasons given below, we conclude that unobligated expired fiscal 1988 appropriations may not be spent in this way.

1. Background

The National Defense Authorization Act for fiscal years 1990 and 1991 was enacted on November 29, 1989, eight days after enactment of the fiscal year 1990, Department of Defense Appropriations Act, Pub.L. No. 101-165, 103 Stat. 1112. Section 254 of the authorization act mandates side-by- side testing and evaluation of the Bofors Bill weapon system, the Milan weapon system, and the Dragon II weapon system. Subsection(b) states that these tests are to be funded from, among others, funds appropriated for fiscal year 1988 for evaluation of the Bofors Bill and Milan systems which have remained unspent. /1/ Section 254 is one B-238868 of a number of provisions under the authorization heading "Research, Development, Test and Evaluation." As a general matter, funds for Army testing of weapon systems come from the lump-sum appropriation for Army research, development, test and evaluation. E.g., Pub.L. No. 101-165, 103 Stat. 1125.

The program and funding method authorized by section 254 were not mentioned in the fiscal 1990 Defense appropriations act. Nor does the legislative history of either the authorization or appropriations acts provide any discussion about the funding method. Although the Conference Report accompanying the fiscal 1990 and 1991 Defense Authorization Act directed the Army to complete side-by-side testing of the Dragon II, Bofors Bill, and Milan weapon systems, it did not discuss how these tests were to be funded. H.R. Rep. No. 331, 101st Cong., 1st Sess. 533 (1989).

Section 202 of the National Defense Authorization Act for fiscal years 1988 and 1989, Pub.L. No. 100-180, 101 Stat. 1019, 1045-46, which was enacted several weeks before the related fiscal 1988 appropriations act, provided that of the funds authorized for Army research, development, test and evaluation for fiscal 1988, not more that $18 million could be obligated for the advanced Anti-tank Weapon System Medium until the Secretary of the Army certified to the Committees on Armed Services of the Senate and the House of Representatives that the Army had completed a Milan II weapon system evaluation. /2/ The House report accompanying the fiscal 1988 authorization act recommended $10 million for evaluation of the Milan II system and $10 million for evaluation of the Bofors Bill system. H.R. Rep. No. 58, 100th Cong., 1st Sess. 132 (1987). Conference, the amount intended was reduced to $5 million for evaluation of both. H.R. Rep. No. 446, 100th Cong., 1st Sess. 499 (1987).

The Joint Resolution Continuing Appropriations for fiscal year 1988 appropriated a lump sum of approximately $4.688 billion to the Army for research, development, test and evaluation to remain available until the end of fiscal year 1989. Pub.L. No. 100-202, 101 Stat. 1329-57, 58. Neither the Act nor the conference report, H.R. Rep. No. 498, 100th Cong., 1st Sess. 623-34 (1987), provided specific amounts for the Milan II and Bofors Bill evaluations, or mentioned either project. The House recommended $10 million above the budget in the Foreign Weapons Evaluation Program for the evaluations, H.R. Rep. No. 410, 100th Cong., 1st Sess. 217 (1987), but the Senate did not recommend any funding, S. Rep. No. 235, 100th Cong., 1st Sess. 274 (1987).

The Department of the Army has reviewed section 254 and has determined that fiscal 1988 Army research, development, test and evaluation funds may not be used to fund the testing since those funds have expired and cannot be used for new obligations. The Army also maintains that since the direction to fund the tests with fiscal year 1988 funds was provided in the 1990 authorization act, and not the appropriations act, there is insufficient authority to use the 1988 funds.

2. Legal Discussion

We agree with the Army's conclusion, but our analysis is somewhat different. We have held that a subsequent appropriations act is sufficient authority to reappropriate expired unobligated appropriations. B-224828, Oct. 1, 1986. Although we have not considered whether a subsequent authorization act alone also is sufficient authority to reappropriate these kinds of funds, we find no reason to address that issue. The problem here is that the fiscal year 1988 appropriations act did not appropriate any monies for the Milan II and Bofors Bill tests.

We cannot say that the language in the fiscal 1988 and 1989 Defense Authorization Act and accompanying committee reports mentioning the Milan II evaluation, construed together with the lump-sum Army research, development, test and evaluation appropriation for fiscal year 1988, somehow constituted a specific appropriation for testing of the Milan II and Bofors Bill systems. The authorization act neither mandated testing of the Milan II system nor mentioned testing and evaluation of the Bofors Bill system; the appropriations act made no specific appropriation for testing of either system; and the committee reports accompanying the appropriations act did not clearly indicate the tests were intended to be funded from the lump-sum appropriation for Army research, development, test and evaluation, or any other appropriation. Regarding the latter point, we think it significant that while the House report did recommend $10 million for the tests, the Conference Report did not mention the tests and the Senate report recommended nothing.

Accordingly, we find that the fiscal 1988 appropriations act did not appropriate any money for testing and evaluation of the Milan II and Bofors Bill systems. Thus, section 254(b)(1) of the fiscal year 1990 and 1991 Defense Authorization Act, directing that unspent expired funds appropriated for fiscal year 1988 be used to test and evaluate the Bofors Bill and Milan systems during fiscal years 1990 and 1991, cannot be effected.

/1/ The other 2 sources mentioned by section 254(b) are funds appropriated for fiscal year 1989 for the terminated Dragon III program which remain unspent, and other fiscal year 1988 or 1989 funds available to the Secretary.

/2/ Section 202 defined "Milan II evaluation" as evaluation of the Milan II system as an interim alternative medium-range anti-tank weapons system, as directed in the joint explanatory statement of the Committee of Conference accompanying the Conference report on House Joint Resolution 738. Pub.L. No. 100-180, 101 Stat. 1019, 1046. House Joint Resolution 738 was the Joint Resolution continuing appropriations for fiscal year 1987, Pub.L. No. 99-591, 100 Stat. 3341. The conference report further discussed Milan II, and intended $10 million for testing and evaluation of it. The $10 million was to come from the lump-sum appropriation for Army research, development, test and evaluation. H.R. Rep. No. 1005, 99th Cong., 2d Sess. 555 (1986).