B-43609, AUGUST 14, 1944, 24 COMP. GEN. 123

B-43609: Aug 14, 1944

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ARE NOT TO BE CONSIDERED AS PASSENGER-CARRYING VEHICLES WITHIN THE PURVIEW OF SECTION 5 OF THE ACT OF JULY 16. 1944: I HAVE YOUR LETTER OF AUGUST 1. PROVIDING IN PART: "ATTENTION OF THE PROCUREMENT DIVISION HAS BEEN DIRECTED TO THE FACT THAT CONSIDERABLE QUANTITIES OF SERVICEABLE USED TRUCKS WILL BE DECLARED AS SURPLUS TO THIS DIVISION. IT IS REQUESTED THAT A LISTING BE MADE BY ALL FEDERAL AGENCIES OF THEIR PRESENT AND IMMEDIATELY ANTICIPATED TRUCK REQUIREMENTS. A COPY OF WHICH IS ATTACHED. 000 THIS PURCHASE AUTHORITY WAS SUBSEQUENTLY AMENDED BY TELEPHONE CONVERSATION TO DESIGNATE ONE-HALF TON TRUCKS. AFTER THE PUBLIC HEALTH SERVICE WAS ADVISED THAT ONE AND ONE-HALF TON VEHICLES WOULD NOT BE AVAILABLE BUT THAT ONE-HALF TON TRUCKS WOULD BE AVAILABLE.

B-43609, AUGUST 14, 1944, 24 COMP. GEN. 123

VEHICLES - STATUS AS PASSENGER-CARRYING OR TRUCK HALF-TON MOTOR-PROPELLED VEHICLES, PURCHASED FOR USE AS TRUCKS, WITH WHATEVER PASSENGER-CARRYING CAPACITY REPRESENTED BY SEATS FOR PASSENGERS ELIMINATED, AND LISTED AND DESCRIBED BY THE MANUFACTURER IN THE CLASS OF TRUCKS, ARE NOT TO BE CONSIDERED AS PASSENGER-CARRYING VEHICLES WITHIN THE PURVIEW OF SECTION 5 OF THE ACT OF JULY 16, 1914, PROHIBITING THE PURCHASE OF MOTOR-PROPELLED PASSENGER-CARRYING VEHICLES UNLESS SPECIFICALLY AUTHORIZED BY LAW, AND PAYMENT THEREFOR MAY BE MADE FROM AN APPROPRIATION WHICH, ALTHOUGH SPECIFICALLY AVAILABLE FOR THE "MAINTENANCE AND OPERATION OF PASSENGER-CARRYING AUTOMOBILES," CONTAINS NO PROVISION FOR THE PURCHASE OF SUCH VEHICLES. 16 COMP. GEN. 260, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, AUGUST 14, 1944:

I HAVE YOUR LETTER OF AUGUST 1, 1944, AS FOLLOWS:

ON APRIL 1, 1944, THE PROCUREMENT DIVISION OF THE UNITED STATES TREASURY DEPARTMENT ISSUED CIRCULAR LETTER, B-SERIES, NO. 10, PROVIDING IN PART:

"ATTENTION OF THE PROCUREMENT DIVISION HAS BEEN DIRECTED TO THE FACT THAT CONSIDERABLE QUANTITIES OF SERVICEABLE USED TRUCKS WILL BE DECLARED AS SURPLUS TO THIS DIVISION.

"IN ORDER TO DIRECT PROPERLY THE FLOW OF THIS EQUIPMENT TOWARD THE FULFILLMENT OF ANY FORESEEABLE FEDERAL NEED, IT IS REQUESTED THAT A LISTING BE MADE BY ALL FEDERAL AGENCIES OF THEIR PRESENT AND IMMEDIATELY ANTICIPATED TRUCK REQUIREMENTS. ANY SUCH LIST SHOULD INCLUDE THE MAKE, MODEL, TYPE AND SIZE OF TRUCK PREFERRED.'

PURSUANT TO THIS CIRCULAR THE UNITED STATES PUBLIC HEALTH SERVICE OF THE FEDERAL SECURITY AGENCY, ON APRIL 18, 1944, ORALLY DISCUSSED WITH THE PROCUREMENT DIVISION OF THE TREASURY DEPARTMENT, THE OBTAINING OF SEVERAL ONE-HALF TON TRUCKS. WHEN ADVISED THAT ONLY ONE AND ONE-HALF TON TRUCKS WOULD BE AVAILABLE, IT SUBMITTED TO THE PROCUREMENT DIVISION ITS PURCHASE AUTHORITY, A COPY OF WHICH IS ATTACHED, FOR FIVE ONE AND ONE-HALF TON TRUCKS, SAID PURCHASE AUTHORITY PROVIDING IN PART:

ENCUMBRANCE

QUANTITY REQUIRED RECORD ITEM ARTICLES OR SERVICES NO.

NUMBER UNIT UNIT

PRICE TOTAL

1 TRUCKS, 1 1/2 TON, FORD OR

CHEVROLET ---------------- 5 EACH 800 4,000

THIS PURCHASE AUTHORITY WAS SUBSEQUENTLY AMENDED BY TELEPHONE CONVERSATION TO DESIGNATE ONE-HALF TON TRUCKS, AFTER THE PUBLIC HEALTH SERVICE WAS ADVISED THAT ONE AND ONE-HALF TON VEHICLES WOULD NOT BE AVAILABLE BUT THAT ONE-HALF TON TRUCKS WOULD BE AVAILABLE. THEREAFTER, THE PROCUREMENT DIVISION OF THE TREASURY DEPARTMENT INSTRUCTED THE PUBLIC HEALTH SERVICE TO PICK UP THE VEHICLES AT FORT MEADE, MARYLAND. WHEN THE VEHICLES WERE DELIVERED TO THE PUBLIC HEALTH SERVICE, IT WAS OBSERVED THAT THEY WERE OF THE TYPE KNOWN AS CHEVROLET " CARRYALL SUBURBANS.'

WE HAVE BEEN ADVISED BY THE WASHINGTON OFFICE OF THE CHEVROLET MOTOR DIVISION, A COPY OF THE LETTER BEING ATTACHED HERETO, THAT THE " CARRYALL SUBURBAN" IS THE STANDARD CHEVROLET HALF-TON TRUCK CHASSIS EQUIPPED WITH A HALF-TON PANEL BODY, WITH CERTAIN UNDESCRIBED MODIFICATIONS AS TO INNER LINING, AND WITH THE ADDITION OF TWO REAR SEATS THEREBY ENABLING IT TO TRANSPORT EIGHT PERSONS. THE VEHICLE IS LISTED AND DESCRIBED IN THE CATALOG OF CHEVROLET TRUCKS. IN ADDITION TO THE ABOVE DESCRIPTION, THE CHEVROLET MOTOR DIVISION HAS STATED:

"THIS VEHICLE IS OF DISTINCTLY COMMERCIAL DESIGN, BOTH CHASSIS AND BODY, AND IS LICENSED IN MOST STATES AS A COMMERCIAL VEHICLE SINCE THE REAR SEATS ARE REMOVABLE, THUS PERMITTING CONVERSION FOR USE AS A COMMODITY CARRYING UNIT.'

THE APPROPRIATION FROM WHICH THE PUBLIC HEALTH SERVICE PROPOSES TO PAY FOR THESE VEHICLES IS NOT AVAILABLE FOR THE PURCHASE OF PASSENGER CARRYING AUTOMOTIVE EQUIPMENT, NOR DOES THE PUBLIC HEALTH SERVICE DESIRE TO OBTAIN SUCH PASSENGER CARRYING EQUIPMENT. ON THE CONTRARY THE PUBLIC HEALTH SERVICE REQUIRES LIGHT TRUCKS FOR THE PURPOSE OF TRANSPORTING X-RAY EQUIPMENT USED BY THE TUBERCULOSIS CONTROL SECTION OF THE STATE RELATIONS DIVISION, OR FOR TOWING OF TRAILERS CONTAINING SIMILAR EQUIPMENT. ALL SEATS, EXCEPT THE DRIVER'S SEAT, WILL BE REMOVED FROM THE TRUCKS SO THAT ITS CAPACITY AND USEFULNESS FOR CARRYING PASSENGERS, EXCEPT AS MAY BE TRANSPORTED IN THE CONVENTIONAL TRUCK WOULD BE DESTROYED.

EXAMINATION OF THE DECISIONS OF YOUR OFFICE, AND OF THE COMPTROLLER OF THE TREASURY, REVEALS THAT THE RESTRICTIONS AGAINST THE PURCHASE OF PASSENGER CARRYING AUTOMOTIVE EQUIPMENT "APPLIES ONLY TO THE PURCHASE OF VEHICLES PRIMARILY USED FOR CARRYING PASSENGERS AND NOT TO THE PURCHASE OF VEHICLES PRIMARILY USED FOR SOME OTHER PURPOSE, SUCH AS A FREIGHT TRUCK.' 27 COMP. DEC. 1016; CF. 3 COMP. GEN. 900; 16 COMP. GEN. 320. THUS, THE PURCHASE OF A VEHICLE DESCRIBED AS " FORD TRUCK, TT CHASSIS, WITH PASSENGER AND FREIGHT BODY, TO CONTAIN IN ADDITION TO THE FRONT SEAT TWO SEATS RUNNING THE FULL LENGTH OF THE BODY * * *" WAS HELD NOT TO VIOLATE THE ACT OF JULY 16, 1914 (38 STAT. 508) WHEN IT WAS SHOWN THAT ITS PRIMARY PURPOSE WAS TO HAUL SUPPLIES, THE TRANSPORTATION OF PERSONS BEING INCIDENTAL THERETO. 3 COMP. GEN. 900. SIMILARLY, APPROVAL WAS GIVEN FOR THE PURCHASE OF "JEEPS" NOTWITHSTANDING THE FACT THAT A "POSSIBLE CONVENIENT USE OF THE VEHICLES (WAS) TO TRANSPORT PERSONNEL.'

DECISION

IN LIGHT OF THESE DECISIONS, IT WOULD APPEAR THAT THE PURCHASE OF THE VEHICLES FOR THE PURPOSES ABOVE STATED DOES NOT CONSTITUTE THE PURCHASE OF PASSENGER CARRYING EQUIPMENT. NEVERTHELESS, THIS OFFICE IS AWARE OF THE DECISION CONTAINED IN 16 COMP. GEN. 260, WHEREIN A VEHICLE CLASSIFIED AS A " CARRYALL SUBURBAN" WAS HELD, UNDER THE CIRCUMSTANCES THERE PRESENTED, TO BE PASSENGER CARRYING WITHIN THE MEANING OF THE ACT OF JULY 16, 1914. GATHER IN THAT SITUATION, HOWEVER, THAT MATERIAL FACTORS, NOT PRESENT IN THE INSTANT ONE, WERE THE REQUIREMENTS OF THE SPECIFICATIONS THAT THE VEHICLE MUST CONTAIN FOUR UPHOLSTERED SEATS SUCH AS WOULD BE USED FOR CARRYING EIGHT PASSENGERS AND THAT THE MANUFACTURER BE ENGAGED IN THE PRODUCTION OF PASSENGER AUTOMOBILES FOR AT LEAST FIVE YEARS. BEFORE WE UTILIZE THESE VEHICLES, HOWEVER, WE DESIRE TO BE ADVISED WHETHER PAYMENT FOR THESE VEHICLES BY TRANSFER OF FUNDS FROM APPROPRIATION " EMERGENCY HEALTH AND SANITATION ACTIVITIES, NATIONAL DEFENSE, 1944" (WHICH HAVE ALREADY BEEN PROPERLY ENCUMBERED) WOULD BE A VIOLATION OF THE ACT OF JULY 16, 1914.

INASMUCH AS THESE VEHICLES CANNOT BE UTILIZED UNTIL A DECISION HAS BEEN RENDERED BY YOU, A PROMPT REPLY IS REQUESTED.

IN 16 COMP. GEN. 260, THE DECISION REFERRED TO IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER, IT WAS HELD (QUOTING FROM THE SYLLABUS):

THE PURCHASE OF A MOTOR-PROPELLED PASSENGER-CARRYING VEHICLE BEING PROHIBITED BY SECTION 5 OF THE ACT OF JULY 16, 1914, 38 STAT. 508, UNLESS SPECIFICALLY AUTHORIZED BY LAW, PAYMENT MAY NOT BE MADE IN CONNECTION WITH THE PURCHASE BY THE FEDERAL COMMUNICATIONS COMMISSION OF AN AUTOMOBILE PRIMARILY OFFERED FOR SALE AND INTENDED FOR USE AS A PASSENGER-CARRYING VEHICLE, NOTWITHSTANDING THE REMOVAL OF THE EXTRA BODY SEATS PERMITS ITS USE FOR OTHER PURPOSES, PARTICULARLY WHERE THE SPECIFICATIONS INVOLVED INCLUDE NUMEROUS OBJECTIONABLE FEATURES IN CONTRAVENTION OF THE DECISIONS OF THE GENERAL ACCOUNTING OFFICE.

AS WILL BE SEEN FROM CONSIDERATION OF THE FACTS PRESENTED TO THIS OFFICE IN CONNECTION WITH THAT DECISION, IT WAS NOT CONSIDERED THAT THE CHARACTER OF THE VEHICLE HAD BEEN SO CHANGED AS TO DEPRIVE IT OF ITS PASSENGER- CARRYING CHARACTERISTICS. SEE, IN THAT CONNECTION, THE DECISION IN 3 COMP. GEN. 900, IN WHICH IT WAS HELD (QUOTING FROM THE SYLLABUS):

WHERE IT IS SHOWN THAT THE AUTOMOBILES PURCHASED FOR USE OF FIELD STATIONS OF THE UNITED STATES WEATHER BUREAU WERE DESIGNED AND CONSTRUCTED PRIMARILY FOR TRANSPORTING SUPPLIES AND EQUIPMENT AND THAT PASSENGERS WERE CARRIED ONLY INCIDENTAL TO SUCH TRANSPORTATION, PAYMENT IS AUTHORIZED, AS THE PURCHASE IS NOT IN VIOLATION OF THE ACT OF JULY 16, 1914, 38 STAT. 508, PROHIBITING THE USE OF ANY APPROPRIATION FOR THE PURCHASE OF MOTOR- PROPELLED PASSENGER-CARRYING VEHICLES FOR ANY BRANCH OF THE GOVERNMENT SERVICE UNLESS SUCH PURCHASE IS SPECIFICALLY AUTHORIZED BY LAW.

IT APPEARS FROM YOUR LETTER THAT THE VEHICLES REFERRED TO THEREIN WERE FURNISHED UPON A PURCHASE AUTHORITY PROVIDING FOR 1/2-TON TRUCKS; THAT THE NEED OF YOUR AGENCY IS FOR SUCH TRUCKS; AND THAT WHATEVER PASSENGER- CARRYING CAPACITY MIGHT HAVE BEEN REPRESENTED BY THE PRESENCE OF THE SEATS FOR PASSENGERS, OTHER THAN THE DRIVER'S SEAT, WILL BE ELIMINATED BY THE REMOVAL OF SUCH SEATS. IN THE CIRCUMSTANCES, AS THE PARTICULAR VEHICLES WERE ACQUIRED FOR USE AS TRUCKS AND WILL BE SO ALTERED AS TO RESTRICT THEM TO SUCH USE, AND HAVING REGARD FOR THE FACT THAT THE MANUFACTURER LISTS AND DESCRIBES THE VEHICLE IN THE CLASS OF TRUCKS, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO THE PROCUREMENT OF SUCH VEHICLES BY THE USE OF THE APPROPRIATION " EMERGENCY HEALTH AND SANITATION ACTIVITIES, NATIONAL DEFENSE, 1944," A PUBLIC HEALTH SERVICE APPROPRIATION APPEARING IN THE ACT OF JULY 12, 1943, 57 STAT. 506, WHICH APPROPRIATION, ALTHOUGH PROVIDING SPECIFICALLY FOR THE ,MAINTENANCE AND OPERATION OF PASSENGER-CARRYING AUTOMOBILES" DOES NOT CONTAIN ANY PROVISION FOR THE PURCHASE OF PASSENGER- CARRYING VEHICLES. HENCE, THE QUESTION POSED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.