B-40863, APRIL 4, 1944, 23 COMP. GEN. 749

B-40863: Apr 4, 1944

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SPECIFIC APPROPRIATION AVAILABILITY SINCE FUNDS WERE APPROPRIATED TO THE PUBLIC BUILDINGS ADMINISTRATION FEDERAL WORKS AGENCY. 1944: I HAVE YOUR LETTER OF MARCH 20. IT IS STATED THAT MAINTENANCE OF SAID BUILDING IS UNDER THE JURISDICTION OF THE SUPERINTENDENT. THAT ORDINARILY THE WORK OF PAINTING SUCH OFFICES IS PERFORMED BY THE FEDERAL WORKS AGENCY WITHOUT COST TO THE COMMISSION. THAT THE QUALITY OF PAINT USED IS OF SO INFERIOR A GRADE THAT FREQUENT PAINTINGS ARE NECESSARY. THAT EACH SUCH RENOVATION IS COSTLY TO THE COMMISSION IN THAT OPERATIONS ARE PRACTICALLY SUSPENDED AND THE COMMISSION IS PUT TO EXPENSE FOR CLEANING RUGS. IT IS FURTHER STATED THAT THE COMMISSION HAS IN STOCK A HIGH GRADE PAINT WHICH IT DESIRES TO USE IN RENOVATING COMMISSION SPACE.

B-40863, APRIL 4, 1944, 23 COMP. GEN. 749

PUBLIC BUILDINGS - PAINTING AND RENOVATING - GENERAL V. SPECIFIC APPROPRIATION AVAILABILITY SINCE FUNDS WERE APPROPRIATED TO THE PUBLIC BUILDINGS ADMINISTRATION FEDERAL WORKS AGENCY, IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1944, SPECIFICALLY FOR "THE REPAIR, PRESERVATION, AND UPKEEP OF ALL COMPLETED PUBLIC BUILDINGS UNDER THE CONTROL OF THE FEDERAL WORKS AGENCY," PAINT PURCHASED WITH FUNDS OF THE FEDERAL COMMUNICATIONS COMMISSION APPROPRIATED FOR "REPAIRS TO BUILDINGS" MAY NOT BE USED FOR ORDINARY PAINTING AND RENOVATING OF SPACE OCCUPIED BY THE COMMISSION IN A PUBLIC BUILDING IN WASHINGTON, D.C., UNDER THE CONTROL OF THE FEDERAL WORKS AGENCY, EVEN THOUGH SUCH PAINT MAY BE OF A HIGHER GRADE THAN THAT USED BY THE PUBLIC BUILDINGS ADMINISTRATION AND THE USE THEREOF WOULD BE MORE ECONOMICAL IN RENDERING UNNECESSARY FREQUENT PAINTINGS.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION, APRIL 4, 1944:

I HAVE YOUR LETTER OF MARCH 20, 1944, REQUESTING DECISION WHETHER THE FEDERAL WORKS AGENCY LAWFULLY MAY ACCEPT PAINT PURCHASED BY THE FEDERAL COMMUNICATIONS COMMISSION FOR USE IN PAINTING THE EXECUTIVE OFFICES OF THE COMMISSION LOCATED IN THE NEW POST OFFICE BUILDING, WASHINGTON, D.C. IT IS STATED THAT MAINTENANCE OF SAID BUILDING IS UNDER THE JURISDICTION OF THE SUPERINTENDENT, POST OFFICES AND INTERNAL REVENUE GROUP, FEDERAL WORKS AGENCY; THAT ORDINARILY THE WORK OF PAINTING SUCH OFFICES IS PERFORMED BY THE FEDERAL WORKS AGENCY WITHOUT COST TO THE COMMISSION, BUT THAT THE QUALITY OF PAINT USED IS OF SO INFERIOR A GRADE THAT FREQUENT PAINTINGS ARE NECESSARY; AND THAT EACH SUCH RENOVATION IS COSTLY TO THE COMMISSION IN THAT OPERATIONS ARE PRACTICALLY SUSPENDED AND THE COMMISSION IS PUT TO EXPENSE FOR CLEANING RUGS, POLISHING FURNITURE, AND HIRING LABORERS TO MOVE FILE CASES AND FURNITURE, AND REPLACEMENT AFTER COMPLETION.

IT IS FURTHER STATED THAT THE COMMISSION HAS IN STOCK A HIGH GRADE PAINT WHICH IT DESIRES TO USE IN RENOVATING COMMISSION SPACE; THAT THE FEDERAL WORKS AGENCY HAS DECLINED TO ACCEPT SUCH MATERIAL FOR THIS PURPOSE ON THE GROUND THAT MONEYS APPROPRIATED FOR MAINTENANCE PURPOSES INCLUDES THE PURCHASE OF PAINTS USED BY SUCH AGENCY; BUT THAT WHEN QUESTIONED REGARDING THE LEGALITY OF AN AGENCY FURNISHING ITS OWN MATERIAL IT WAS STATED THAT "TO THEIR KNOWLEDGE A STATUTE PROHIBITING SUCH AN ARRANGEMENT WAS NON- EXISTENT.' IT IS POINTED OUT THAT THE COMMISSION LIKEWISE IS ALLOTTED MONEYS UNDER ITS APPROPRIATION FOR REPAIRS TO BUILDINGS AND GROUNDS. DECISION ALSO IS REQUESTED WHETHER THE COMMISSION, IF NECESSARY, MAY SOLICIT AND AWARD CONTRACTS FOR PAINTING AND RENOVATING ITS OFFICES IN SAID NEW POST OFFICE BUILDING.

SECTION 1, TITLE 40, U.S. CODE, PROVIDES:

THE PUBLIC BUILDING ADMINISTRATION IN THE FEDERAL WORKS AGENCY SHALL HAVE THE ABSOLUTE CONTROL OF AND THE ALLOTMENT OF ALL SPACE IN THE SEVERAL PUBLIC BUILDINGS OWNED OR BUILDINGS LEASED BY THE UNITED STATES IN THE DISTRICT OF COLUMBIA, WITH THE EXCEPTION OF THE EXECUTIVE MANSION AND OFFICE OF THE PRESIDENT, CAPITOL BUILDING, THE SENATE AND HOUSE OFFICE BUILDINGS, THE CAPITOL POWER PLANT, THE BUILDINGS UNDER THE JURISDICTION OF THE REGENTS OF THE SMITHSONIAN INSTITUTION, AND THE CONGRESSIONAL LIBRARY BUILDING, AND SHALL FROM TIME TO TIME ASSIGN AND ALLOT, FOR THE USE OF THE SEVERAL ACTIVITIES OF THE GOVERNMENT, ALL SUCH SPACE.

THE APPROPRIATION FOR THE PUBLIC BUILDINGS ADMINISTRATION, FEDERAL WORKS AGENCY, CONTAINED IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1944, PUBLIC LAW 90, APPROVED JUNE 26, 1943, 57 STAT. 176, PROVIDES IN EXPRESS TERMS FOR "THE REPAIR, PRESERVATION, AND UPKEEP OF ALL COMPLETED PUBLIC BUILDINGS UNDER THE CONTROL OF THE " FEDERAL WORKS AGENCY" INCLUDING "BUILDINGS OPERATED BY THE TREASURY AND POST OFFICE DEPARTMENTS IN THE DISTRICT OF COLUMBIA.' THUS, FUNDS WERE APPROPRIATED TO THE FEDERAL WORKS AGENCY FOR THE SPECIFIC PURPOSE OF PAINTING AND OTHERWISE MAINTAINING THE NEW POST OFFICE BUILDING, WASHINGTON, D.C., AND NECESSARILY, OF COURSE, FOR THE PURCHASE OF MATERIALS INCIDENT TO SUCH WORK. BUT, AS POINTED OUT IN YOUR LETTER, THE APPROPRIATION FOR THE FEDERAL COMMUNICATIONS COMMISSION CONTAINED IN THE SAME ACT--- THAT IS, THE INDEPENDENT OFFICES APPROPRIATION ACT, 1944--- AUTHORIZES THE USE OF FUNDS APPROPRIATED THEREIN FOR THE "IMPROVEMENT AND CARE OF GROUNDS AND REPAIRS TO BUILDINGS, NOT TO EXCEED $5,000.'

THE FACT THAT THE COMMISSION HAS THE DESIRED PAINT AVAILABLE IN STOCK IN THE INSTANT SITUATION IS OF NO MATERIAL SIGNIFICANCE, SINCE, PRESUMABLY, IT WAS PURCHASED UNDER AUTHORITY OF LAW. THAT IS TO SAY, THE QUESTION STILL IS WHETHER THE FUNDS OF THE COMMISSION PROPERLY MAY BE EXPENDED IN CONNECTION WITH THE UPKEEP AND REPAIR OF SPACE OCCUPIED IN A BUILDING UNDER THE JURISDICTION AND CONTROL OF THE FEDERAL WORKS AGENCY. AND, OF PRIMARY CONCERN IN THE DETERMINATION OF THAT QUESTION, IS THE PROVISION OF LAW WHICH REQUIRES THAT---

EXCEPT AS OTHERWISE PROVIDED BY LAW, SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE, AND FOR NO OTHERS. SECTION 3678, REVISED STATUTES, 31 U.S.C. 628).

IT IS WELL SETTLED THAT WHERE AN APPROPRIATION IS AVAILABLE FOR A SPECIFIC OBJECT, ANOTHER APPROPRIATION CANNOT BE USED FOR THE SAME WORK UNLESS IT CLEARLY APPEARS THAT IT WAS THE INTENTION OF THE CONGRESS THAT SUCH OTHER APPROPRIATION SHOULD BE AVAILABLE IN ADDITION TO THE SPECIFIC APPROPRIATION. 20 COMP. GEN. 272; 23 ID. 481. AND IT WOULD SEEM THAT SUCH INTENT SHOULD BE UNMISTAKABLY CLEAR WHERE BOTH INVOLVED APPROPRIATIONS ARE CONTAINED IN THE SAME ACT, AS IN THE INSTANT CASE. WERE THE EXECUTIVE OFFICES IN THE NEW POST OFFICE BUILDING THE ONLY SPACE OCCUPIED BY THE FEDERAL COMMUNICATIONS COMMISSION, IT WELL MIGHT BE ARGUED THAT THE CONGRESS MUST HAVE INTENDED THE FUNDS OF THE COMMISSION TO BE AVAILABLE FOR REPAIRS TO SUCH PREMISES, AS OTHERWISE THE APPROPRIATION PROVISION FOR "REPAIRS TO BUILDINGS" WOULD BE MEANINGLESS. BUT, IT BEING UNDERSTOOD THAT THE COMMISSION OCCUPIES SPACE IN MANY BUILDINGS OUTSIDE THE DISTRICT OF COLUMBIA IN CONNECTION WITH ITS ACTIVITIES IN THE FIELD, THERE APPEARS NO REASONABLE BASIS FOR SUCH AN ARGUMENT IN THIS INSTANCE.

ALSO, IT HAS BEEN HELD THAT WHERE CERTAIN REPAIRS ARE MADE NECESSARY BY REASON OF THE SPECIALIZED WORK OF THE AGENCY OCCUPYING THE PREMISES, THE EXPENSE THEREOF PROPERLY IS CHARGEABLE TO THE APPROPRIATION FOR THE ACTIVITY TO BE BENEFITED RATHER THAN TO THE PUBLIC BUILDING APPROPRIATION. SEE 16 COMP. GEN. 816, AND CASES CITED THEREIN. HOWEVER, IT WOULD APPEAR THAT ORDINARY PAINTING AND RENOVATING OF PREMISES FROM TIME TO TIME IS WORK WHICH WOULD BE NECESSARY FOR THE OCCUPANCY THEREOF BY ANY GOVERNMENT OFFICE FORCE. CF. 17 COMP. GEN. 1050.

WHILE IT MAY BE, AS INDICATED BY YOUR LETTER, THAT THE FEDERAL WORKS AGENCY PRESENTLY IS USING PAINT OF AN INFERIOR GRADE IN THE UPKEEP OF THE BUILDING INVOLVED, AND THAT THE USE OF SUCH PAINT IS UNECONOMICAL FROM A PRACTICAL STANDPOINT, NEVERTHELESS, THE SELECTION OF THE TYPE OF PAINT TO BE USED IN THE MAINTENANCE AND REPAIR OF THE BUILDING HAS BEEN LEFT BY THE CONGRESS TO THE DISCRETION AND JUDGMENT OF THE OFFICIALS OF THE FEDERAL WORKS AGENCY, AND THE FACT THAT THE AGENCY OCCUPYING THE BUILDING MAY PREFER A DIFFERENT PAINT IS NOT JUSTIFICATION FOR USING APPROPRIATED FUNDS --- OR PAINT PURCHASED WITH SUCH FUNDS--- WHICH OTHERWISE ARE NOT AVAILABLE FOR THE OBJECT DESIRED.

IN VIEW OF THE FOREGOING, IT MUST BE CONCLUDED THAT HAVING APPROPRIATED FUNDS TO THE FEDERAL WORKS AGENCY FOR THE SPECIFIC PURPOSE OF PAINTING AND RENOVATING PUBLIC BUILDINGS UNDER ITS CONTROL, INCLUDING SPACE OCCUPIED BY THE FEDERAL COMMUNICATIONS COMMISSION IN THE NEW POST OFFICE BUILDING, WASHINGTON, D.C., THE CONGRESS COULD NOT HAVE INTENDED THAT THE FUNDS OF THE COMMISSION--- OR PAINT PURCHASED WITH SUCH FUNDS--- BE USED FOR SUCH WORK, AND THAT, THEREFORE, EITHER OF THE ARRANGEMENTS PROPOSED IN YOUR LETTER IS PROHIBITED BY SECTION 3678, REVISED STATUTES, SUPRA. ..END :