B-57383, JUNE 28, 1946, 25 COMP. GEN. 909

B-57383, JUNE 28, 1946, 25 COMP. GEN. 909

PROPERTY - PUBLIC - DISPOSAL THE EXECUTION BY THE DEPARTMENT OF STATE OF AN AGREEMENT PROPOSING, IN EFFECT, PERMANENTLY TO VEST IN A GLOBE MANUFACTURER THE BENEFICIAL OWNERSHIP OF GOVERNMENT DRAWINGS FOR AN AERONAUTICAL GLOBE MAP IN THAT THE MANUFACTURER WOULD BE GRANTED THE IRREVOCABLE AND EXCLUSIVE RIGHT TO MAKE PRINTING PLATES FROM PHOTOGRAPHIC NEGATIVES OF SUCH DRAWINGS TO BE USED IN PRINTING MAPS FOR COVERING GLOBES FOR SALE TO THE PUBLIC, AS WELL AS TO THE GOVERNMENT AT REDUCED PRICES, WOULD, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, BE IN VIOLATION OF ARTICLE IV, SECTION 3, CLAUSE 2, OF THE CONSTITUTION OF THE UNITED STATES, GRANTING THE CONGRESS THE EXCLUSIVE JURISDICTION TO DISPOSE OF GOVERNMENT PROPERTY. 17 COMP. GEN. 1070, AND 18 ID. 967, DISTINGUISHED.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF STATE, JUNE 28, 1946:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 20, 1946, AS FOLLOWS:

FOR SOME PERIOD OF TIME THE DEPARTMENT HAS BEEN DEVELOPING AN AIR ROUTE GLOBE WHICH IS NEEDED IN ORDER TO PERMIT A BETTER UNDERSTANDING OF PROBLEMS OF AVIATION WHICH, OF COURSE, ARE ASSUMING GREATER IMPORTANCE EVERY DAY. ALONG WITH THE AIR ROUTE GLOBE THE DEPARTMENT HAS BEEN DEVELOPING A TRANSPARENT PLASTIC HEMISPHERE WHICH CAN BE SUPERIMPOSED ON TOP OF A GLOBE AND PERMIT READY CALCULATION OF AIR ROUTES AND DISTANCES AND COMPARISONS OF LAND AND SEA AREAS. IN ORDER THAT THIS PLASTIC HEMISPHERE CAN BE USED PROPERLY A SLIGHT ADAPTATION HAS TO BE MADE OF THE PRESENT GLOBES SO AS TO INSURE COMPLETE SPHERICITY.

THE WEBSTER COSTELLO COMPANY, A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF ILLINOIS AND ONE OF THE LARGEST CONCERNS IN THE UNITED STATES DEVOTED TO THE PREPARATION OF GLOBES, MAPS AND OTHER GEOGRAPHICAL AIDS, HAS BEEN COOPERATING WITH THE DEPARTMENT IN THE DEVELOPMENT OF THIS PROGRAM AND HAS PREVIOUSLY FURNISHED THE DEPARTMENT WITH AIR ROUTE GLOBES WHICH HAVE ALREADY PROVED THEIR USEFULNESS. IT IS EXPECTED THAT THE NEW GLOBE, PARTICULARLY WHEN USED IN CONJUNCTION WITH THE PLASTIC HEMISPHERES, WILL BE EVEN MORE USEFUL.

THE AIR ROUTE GLOBE, THE PRODUCTION OF WHICH WEBSTER COSTELLO IS WILLING TO UNDERTAKE, WILL BE FAR MORE ACCURATE THAN ANY OTHER AIR ROUTE GLOBE PRODUCED UP TO THIS TIME AND COULD BE USED TO ADVANTAGE BY COMMERCIAL FIRMS AND BY SCHOOLS AND COLLEGES THROUGHOUT THE COUNTRY, AND THE DEPARTMENT WOULD BE ONLY TOO GLAD TO HAVE SUCH USE MADE OF THE GLOBES AS TO PROMOTE AMERICAN BUSINESS INTERESTS AND FOSTER A BETTER UNDERSTANDING OF GEOGRAPHICAL RELATIONS AMONG THE POPULATION AS A WHOLE.

HENCE, THE DEPARTMENT WOULD SEE NO OBJECTION FROM A POLICY STANDPOINT TO THE DISTRIBUTION OF THE GLOBES ON A COMMERCIAL BASIS BY WEBSTER COSTELLO. MOREOVER, WEBSTER COSTELLO, IF IT IS GIVEN THE PRIVILEGE OF DISTRIBUTING THE GLOBES COMMERCIALLY, IS WILLING TO ASSUME PART OF THE COST OF PRODUCING THE NEW TYPE OF GLOBE WHICH WOULD NATURALLY RESULT IN A FINANCIAL BENEFIT TO THE GOVERNMENT. THE PLAN, THEREFORE, IS TO ENTER INTO A CONTRACT WITH WEBSTER COSTELLO WHEREBY WEBSTER COSTELLO WOULD AGREE TO PRODUCE THE GLOBES ON THE BASIS OF PRINTS WHICH HAVE BEEN CORRECTED AND REVISED BY THE GOVERNMENT AND AGREE TO ASSUME PART OF THE ESTIMATED COST OF SUCH PRODUCTION. IT IS BELIEVED THAT THE PROPOSED ARRANGEMENT IS OF ADVANTAGE TO THE GOVERNMENT AND THAT THERE ARE NO REASONS EITHER IN POLICY OR LAW WHICH WOULD RENDER THE ENTRY INTO SUCH AN AGREEMENT UNDESIRABLE. IT IS RECOGNIZED, NEVERTHELESS, THAT WEBSTER COSTELLO WOULD BE DERIVING AN ADVANTAGE (FOR WHICH, OF COURSE, IT GIVES A CORRESPONDING BENEFIT TO THE GOVERNMENT) FROM THE USE OF MATERIAL WHICH WAS PREPARED IN COOPERATION WITH THE GOVERNMENT.

IT IS NOT BELIEVED THAT THE FACT THAT WEBSTER COSTELLO MIGHT DERIVE SUCH AN ADVANTAGE WOULD MILITATE AGAINST THE AGREEMENT, AS IT HAS BEEN CUSTOMARY, PARTICULARLY IN THE WAR YEARS, FOR GOVERNMENT TECHNICIANS TO LEND THEIR ASSISTANCE TO PRIVATE INDUSTRY IN WORKING OUT PROBLEMS, THE SOLUTION OF WHICH, ALTHOUGH BENEFICIAL TO THE GOVERNMENT, WOULD ALSO RESULT IN A BENEFIT TO PRIVATE INDUSTRY. IN FACT, THERE ARE TWO DECISIONS OF THE COMPTROLLER GENERAL RELATING TO THE SALE OF REPORTS OF HEARINGS BY A STENOGRAPHIC REPORTING COMPANY WHICH WOULD SEEM TO OFFER A PRECEDENT FOR THE PRESENT SITUATION NAMELY 17 C.G., 1070, AND 18 C.G., 967. IN BOTH THESE OPINIONS THE RIGHT OF THE GOVERNMENT TO PERMIT THE SALE TO THE GENERAL PUBLIC OF STENOGRAPHIC PROCEEDINGS OF CERTAIN HEARINGS IN WHICH THE PUBLIC IS INTERESTED, WAS IMPLIEDLY APPROVED. WHILE THE FACTS OF THE CASES ARE DIFFERENT, THE PRINCIPLE WOULD APPEAR TO BE THE SAME.

IN VIEW OF THE FACTS RECITED IN THIS LETTER, YOU ARE REQUESTED TO INFORM THE DEPARTMENT IF YOU HAVE ANY OBJECTIONS TO THE CONSUMMATION OF THE ATTACHED CONTRACT BETWEEN THE UNITED STATES GOVERNMENT AND THE WEBSTER COSTELLO COMPANY.

IT IS UNDERSTOOD FROM THE TERMS OF THE PROPOSED AGREEMENT ENCLOSED WITH YOUR LETTER THAT, IN CONNECTION WITH THE PRODUCTION OF THE GLOBES, YOUR DEPARTMENT WILL PREPARE DRAWINGS FROM WHICH PHOTONEGATIVES WILL BE MADE, SAID PHOTONEGATIVES TO BE GIVEN TO THE CONTRACTOR FOR USE IN MAKING THE PRINTING PLATES FOR THE PRINTING OF THE GLOBE COVERS; THAT THE SAID PRINTING PLATES MADE BY THE CONTRACTOR ARE TO REMAIN ITS PROPERTY; AND THAT THE CONTRACTOR WILL BE PERMITTED TO SELL SUCH GLOBES TO THE GENERAL PUBLIC, THE RIGHT ACCORDED TO IT IN THAT REGARD TO BE TO THE EXCLUSION OF ANY OTHER PERSON, FIRM, ETC. IN RETURN FOR THE PRIVILEGE THUS GIVEN THE CONTRACTOR THE GOVERNMENT IS TO BE GIVEN THE RIGHT TO PURCHASE THE GLOBES, IN STATED LOTS, AT A PRICE LOWER THAN NORMALLY WOULD BE THE CASE.

THE DETAILS OF THE FOREGOING ARRANGEMENT APPEAR TO BE EMBODIED IN PARAGRAPHS NOS. 1, 2, 4, 5, AND 11 OF THE PROPOSED CONTRACT, WHICH PROVISIONS ARE AS FOLLOWS:

1. THE GOVERNMENT SHALL PREPARE DRAWINGS FOR AN AERONAUTICAL GLOBE WHICH SHALL BE TRULY SPHERICAL, SAID DRAWINGS BEING PREPARED UPON A 1 INCH GRID OF PARALLELS AND MERIDIANS EXPERIMENTALLY PROVEN TO BE HIGHLY ACCURATE AS PRINTED UPON SPECIAL GLOBE PAPER REGULARLY USED BY WEBSTER COSTELLO AND AS HAND-MOUNTED ON A TRULY SPHERICAL BALL 12.125 INCHES IN DIAMETER, SAID DRAWINGS BEING BASED SO FAR AS FEASIBLE UPON THE IMPRESSIONS OF THE WEBSTER COSTELLO " REALITY" 16-INCH GEOGRAPHICAL GLOBE WHICH IS FLATTENED AT THE POLES.

2. THE GOVERNMENT SHALL FURNISH TO WEBSTER COSTELLO PHOTOGRAPHIC NEGATIVES FROM WHICH PRINTING PLATES MAY BE MADE ADAPTED TO THE PRINTING OF AN AERONAUTICAL GLOBE MAP OR COVER FOR A TRULY SPHERICAL GLOBE 12.125 INCHES IN DIAMETER; SAID PRINTING PLATES TO BE MADE BY WEBSTER COSTELLO AND TO REMAIN THE PROPERTY OF WEBSTER COSTELLO AND THE GOVERNMENT TO RETAIN A DUPLICATE SET OF PHOTOGRAPHIC NEGATIVES FOR SPECIAL AND POSSIBLE EMERGENCY USE, IT BEING MUTUALLY UNDERSTOOD AND AGREED THAT THESE DUPLICATE NEGATIVES SHALL AT ALL TIMES HEREAFTER REMAIN THE PROPERTY OF THE GOVERNMENT, SUBJECT TO THE TERMS AND CONDITIONS AND LIMITATIONS AS TO USE HEREIN RECITED.

4. IT IS HEREBY MUTUALLY UNDERSTOOD AND AGREED THAT THE USE OF SAID DUPLICATE COPIES OF THE NEGATIVES, WHICH ARE REFERRED TO HEREINBEFORE, IS AND SHALL BE LIMITED TO USE BY THE DEPARTMENT IN THE MANUFACTURE OF GEOGRAPHICAL GLOBE MAPS AND THE REVISION OR CORRECTION THEREOF, OR PARTS THEREOF OR PARTS THEREFOR, TO BE MOUNTED ON SPHERICAL GLOBE BALLS TO BE MANUFACTURED EXCLUSIVELY BY WEBSTER COSTELLO.

5. THE DEPARTMENT AGREES, THAT IT WILL NOT AT ANY TIME, DURING THE EXISTENCE OF THIS AGREEMENT OR THEREAFTER, LOAN OR SELL OR OTHERWISE FURNISH OR SUPPLY TO ANY COMPETITOR OR COMPETITORS OF WEBSTER COSTELLO OR TO ANY OTHER PERSON, FIRM, CORPORATION OR ASSOCIATION, ANY COMPLETE GEOGRAPHICAL GLOBE MAP OR PARTS THEREOF IN THE MANUFACTURE OR PRODUCTION OF WHICH SAID DUPLICATE NEGATIVES, HEREIN REFERRED TO, WERE EMPLOYED.

11. IN RETURN FOR THE ASSUMPTION BY WEBSTER COSTELLO OF THE COST OF PRODUCING THE NEW CUTTING DIES, STEEL MOLDS AND RINGS, THE GOVERNMENT AUTHORIZES WEBSTER COSTELLO TO DISTRIBUTE THE AERONAUTICAL GLOBES TO SCHOOLS AND COLLEGES AND ELSEWHERE, PROVIDED THAT IT IS CLEARLY UNDERSTOOD THAT SUCH AUTHORIZATION SHALL IN NO SENSE CONSTITUTE AN ENDORSEMENT OF THE GLOBE BY THE GOVERNMENT AND THAT WEBSTER COSTELLO WILL IN NO EVENT REPRESENT THE GLOBE AS HAVING BEEN ENDORSED BY THE GOVERNMENT.

IT IS APPARENT FROM THE ABOVE-QUOTED PROVISIONS THAT THE DRAWINGS, REFERRED TO IN PARAGRAPH 1, AND THE PHOTOGRAPHIC NEGATIVES THEREOF, REFERRED TO IN PARAGRAPH 2, ARE THE PROPERTY OF THE UNITED STATES AND THAT, UNDER THE TERMS OF THE OTHER ABOVE-QUOTED PARAGRAPHS OF THE PROPOSED AGREEMENT, SUBSTANTIAL PROPERTY RIGHTS IN THE DRAWINGS AND PHOTOGRAPHIC NEGATIVES WOULD BE TRANSFERRED TO THE CONTRACTOR AND WOULD REMAIN ITS PROPERTY, IRREVOCABLY AND EXCLUSIVELY, EXCEPT FOR THE LIMITED RIGHTS RETAINED BY THE UNITED STATES. ON THE OTHER HAND, THE EXECUTION OF THE PROPOSED AGREEMENT WOULD OPERATE TO DIVEST THE UNITED STATES OF PRACTICALLY ALL RIGHTS WHICH IT MAY HAVE IN THE DRAWINGS AND PHOTOGRAPHIC NEGATIVES AND WOULD LIMIT ITS USE THEREOF TO THE MANUFACTURE OF GLOBE MAPS AND THE REVISION OR CORRECTION THEREOF, TO BE MOUNTED ON SPHERICAL GLOBE BALLS TO BE MANUFACTURED EXCLUSIVELY BY THE PROPOSED CONTRACTOR.

UNDER SUCH CIRCUMSTANCES, IT WOULD SEEM THAT THE PRIMARY QUESTION FOR DETERMINATION IS WHETHER THE CONTEMPLATED AGREEMENT VIOLATES THE PROVISION RELATIVE TO THE DISPOSITION OF GOVERNMENT PROPERTY CONTAINED IN ARTICLE IV, SECTION 3, CLAUSE 2, OF THE CONSTITUTION OF THE UNITED STATES, AS FOLLOWS:

THE CONGRESS SHALL HAVE POWER TO DISPOSE OF AND MAKE ALL NEEDFUL RULES AND REGULATIONS RESPECTING THE TERRITORY OR OTHER PROPERTY BELONGING TO THE UNITED STATES * * *.

THE COURTS UNIFORMLY HAVE HELD THAT SUCH PROVISION CONFERS ON THE CONGRESS EXCLUSIVE JURISDICTION TO DISPOSE OF THE LAND OR OTHER PROPERTY OF THE UNITED STATES AND THAT THERE IS NO POWER IN THE HEAD OF AN EXECUTIVE DEPARTMENT OF THE GOVERNMENT TO TAKE SUCH ACTION WITHOUT SPECIFIC LEGISLATIVE AUTHORITY THEREFOR. IRVINE V. MARSHALL, 20 HOW. 558; WISCONSIN R. CO. V. PRICE COUNTY, 133 U.S. 496; LIGHT V. UNITED STATES, 220 U.S. 523; UNITED STATES V. FORBES, 259 F. 385. AND THIS RESTRICTION APPLIES NOT ONLY IN RESPECT TO REAL PROPERTY BUT EXTENDS WITH EQUAL FORCE TO PERSONAL PROPERTY BELONGING TO THE GOVERNMENT, WHETHER TANGIBLE OR INTANGIBLE. UNITED STATES V. NICOLL, 1 PAINE ( U.S.) 646 (F. CASE 15879); ROYAL INDEMNITY COMPANY V. UNITED STATES, 313 U.S. 289; AND SEE, PARTICULARLY, 34 OP. ATTY. GEN. 320.

ACCORDINGLY, SINCE, AS HERETOFORE POINTED OUT, THE PROPOSED AGREEMENT APPARENTLY CONTEMPLATES A PERMANENT VESTING OF THE BENEFICIAL OWNERSHIP OF THE GOVERNMENT DRAWINGS IN A PRIVATE CONTRACTOR, I AM OF THE OPINION THAT, IN A REAL SENSE THERE WOULD RESULT A DIMINUTION OF THE PROPERTY OF THE GOVERNMENT OR ITS CONTROL OVER SAID PROPERTY WHICH, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, IS NOT AUTHORIZED. THE DECISIONS OF THIS OFFICE CITED IN YOUR LETTER--- 17 COMP. GEN. 1070, AND 18 COMP. GEN. 967--- PERTAINING TO THE SALE TO THE PUBLIC OF COPIES OF STENOGRAPHIC REPORTS OF ADMINISTRATIVE PROCEEDINGS, DID NOT INVOLVE THE QUESTION OF THE DISPOSITION OF PROPERTY BELONGING TO THE UNITED STATES AND ARE NOT APPLICABLE TO THE INSTANT CONTRACT.

HOWEVER, IN VIEW OF THE PRINCIPLES SET FORTH IN THE OPINION OF THE ATTORNEY GENERAL CITED ABOVE, 34 OP. ATTY. GEN. 320, THE EXECUTION OF AN AGREEMENT PROVIDING FOR THE GRANT OF A NONTRANSFERABLE, NONEXCLUSIVE, REVOCABLE LICENSE TO THE CONTRACTOR TO USE THE GOVERNMENT OWNED DRAWINGS WOULD NOT APPEAR TO BE OBJECTIONABLE.