B-79145, SEPTEMBER 10, 1948, 28 COMP. GEN. 163

B-79145: Sep 10, 1948

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CONTRACTS MADE PURSUANT TO SUCH AUTHORITY FOR WHICH FUNDS ARE NOT APPROPRIATED WOULD NOT BE IN CONTRAVENTION OF THE ANTI-DEFICIENCY ACT (31 U.S.C. 665). ARE IN ADDITION TO THE AUTHORITY TO ENTER INTO CONTINGENT CONTRACTS UNDER THE 1939 ACT. 1948: REFERENCE IS MADE TO LETTER DATED AUGUST 5. WHICH PROVIDE THAT THE COMMISSIONER OF RECLAMATION IS AUTHORIZED TO ENTER INTO CONTRACTS IN AMOUNTS NOT IN EXCESS OF CERTAIN SUMS IN CONNECTION WITH THE CASHUMA UNIT OF THE SANTA BARBARA PROJECT. AS IS STATED IN THE SAID LETTER. PROVIDES THAT "IN ADDITION THERETO THE COMMISSIONER OF RECLAMATION IS AUTHORIZED TO ENTER INTO CONTRACTS IN AN AMOUNT NOT IN EXCESS OF $1. "THE COMMISSIONER OF RECLAMATION IS AUTHORIZED TO ENTER INTO CONTRACTS IN AN AMOUNT NOT IN EXCESS OF $2.

B-79145, SEPTEMBER 10, 1948, 28 COMP. GEN. 163

INTERIOR DEPARTMENT - RECLAMATION PROJECTS - CONTRACTING AUTHORITY THE CONTRACTING FOR THE CONSTRUCTION AND CONTINUATION OF VARIOUS RECLAMATION PROJECTS BEING SPECIFICALLY AUTHORIZED BY THE PROVISIONS OF THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1949, IN AMOUNTS IN ADDITION TO THOSE APPROPRIATED FOR SUCH PROJECTS, CONTRACTS MADE PURSUANT TO SUCH AUTHORITY FOR WHICH FUNDS ARE NOT APPROPRIATED WOULD NOT BE IN CONTRAVENTION OF THE ANTI-DEFICIENCY ACT (31 U.S.C. 665), PROHIBITING THE INVOLVEMENT OF THE GOVERNMENT IN ANY CONTRACTS OR OBLIGATION FOR THE FUTURE PAYMENT OF MONEY IN EXCESS OF APPROPRIATIONS UNLESS AUTHORIZED BY LAW; RATHER, SUCH CONTRACTS WOULD FIRMLY OBLIGATE THE UNITED STATES FOR THE PAYMENT THEREOF. THE PROVISIONS OF THE INTERIOR DEPARTMENT APPROPRIATION ACT 1949, AUTHORIZING THE COMMISSIONER OF RECLAMATION TO ENTER INTO FIRM CONTRACTS FOR THE CONSTRUCTION AND CONTINUATION OF VARIOUS PROJECTS FOR AMOUNTS IN ADDITION TO THOSE APPROPRIATED, DO NOT SUPERSEDE--- AS TO SUCH PROJECTS--- THE PROVISIONS OF SECTION 12 OF THE RECLAMATION PROJECT ACT OF 1939, AUTHORIZING CONTINGENT LIABILITY CONTRACTS FOR MISCELLANEOUS SERVICES, MATERIALS AND SUPPLIES, AND CONSTRUCTION, DEPENDENT UPON APPROPRIATIONS BEING MADE THEREFOR, BUT, RATHER, ARE IN ADDITION TO THE AUTHORITY TO ENTER INTO CONTINGENT CONTRACTS UNDER THE 1939 ACT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 10, 1948:

REFERENCE IS MADE TO LETTER DATED AUGUST 5, 1948, FROM THE ASSISTANT SECRETARY OF THE INTERIOR, RELATIVE TO THE EFFECT OF THE PROVISIONS OF THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1949, PUBLIC LAW 841, APPROVED JUNE 29, 1948, 62 STAT. 1127, WHICH PROVIDE THAT THE COMMISSIONER OF RECLAMATION IS AUTHORIZED TO ENTER INTO CONTRACTS IN AMOUNTS NOT IN EXCESS OF CERTAIN SUMS IN CONNECTION WITH THE CASHUMA UNIT OF THE SANTA BARBARA PROJECT, CALIFORNIA, AND THE PALISADES PROJECT, IDAHO.

AS IS STATED IN THE SAID LETTER, THE AFORESAID ACT, UNDER THE SECTION PROVIDING FOR THE CONSTRUCTION AND CONTINUATION OF VARIOUS PROJECTS, APPROPRIATES $1,000,000 FOR THE CONSTRUCTION OF THE CASHUMA UNIT, SANTA BARBARA PROJECT, AND PROVIDES THAT "IN ADDITION THERETO THE COMMISSIONER OF RECLAMATION IS AUTHORIZED TO ENTER INTO CONTRACTS IN AN AMOUNT NOT IN EXCESS OF $1,600,000" AND THAT, AS TO THE PALISADES PROJECT, IDAHO,"THE COMMISSIONER OF RECLAMATION IS AUTHORIZED TO ENTER INTO CONTRACTS IN AN AMOUNT NOT IN EXCESS OF $2,000,000.'

THE QUESTIONS RAISED--- AND ON WHICH THE DECISION OF THIS OFFICE IS REQUESTED--- ARE WHETHER THE QUOTED PROVISIONS AUTHORIZE THE MAKING OF FIRM CONTRACTS WHICH WILL FULLY OBLIGATE THE UNITED STATES TO PAY THE CONTRACTORS, IN THE AGGREGATE UP TO THE AMOUNTS INDICATED; AND SECOND, WHETHER AS TO THE TWO PROJECTS INVOLVED, THE PROVISIONS SUPERSEDE OR ADDITIONAL TO THE AUTHORITY GIVEN THE BUREAU OF RECLAMATION BY SECTION 12 OF THE RECLAMATION PROJECT ACT OF 1939, 53 STAT. 1197, 43 U.S.C. 388, WHICH IS AS FOLLOWS:

WHEN APPROPRIATIONS HAVE BEEN MADE FOR THE COMMENCEMENT OR CONTINUATION OF CONSTRUCTION OF OPERATION AND MAINTENANCE OF ANY PROJECT, THE SECRETARY MAY, IN CONNECTION WITH SUCH CONSTRUCTION OR OPERATION AND MAINTENANCE, ENTER INTO CONTRACTS FOR MISCELLANEOUS SERVICES, FOR MATERIALS AND SUPPLIES, AS WELL AS FOR CONSTRUCTION, WHICH MAY COVER SUCH PERIODS OF TIME AS THE SECRETARY MAY CONSIDER NECESSARY BUT IN WHICH THE LIABILITY OF THE UNITED STATES SHALL BE CONTINGENT UPON APPROPRIATIONS BEING MADE THEREFOR.

THE LETTER STATES THAT, IN THE ADMINISTRATIVE VIEW, THE AUTHORITY TO CONTRACT IMPORTS AN ENFORCEABLE AND NONCONTINGENT OBLIGATION AND THAT THE FIRST QUESTION SHOULD ACCORDINGLY BE ANSWERED IN THE AFFIRMATIVE. AS TO THE SECOND, IT IS STATED THAT IT WOULD APPEAR THAT THE NONCONTINGENT CONTRACT AUTHORITY IN THE APPROPRIATION ACT IS ADDITIONAL TO THE CONTINGENT AUTHORITY GRANTED IN SECTION 388, TITLE 43, UNITED STATES CODE.

TITLE 31, U.S.C. 665, PROVIDES IN PART AS FOLLOWS:

NO EXECUTIVE DEPARTMENT OR OTHER GOVERNMENT ESTABLISHMENT OF THE UNITED STATES SHALL EXPEND, IN ANY ONE FISCAL YEAR, ANY SUM IN EXCESS OF APPROPRIATIONS MADE BY CONGRESS FOR THAT FISCAL YEAR, OR INVOLVE THE GOVERNMENT IN ANY CONTRACT OR OTHER OBLIGATION FOR THE FUTURE PAYMENT OF MONEY IN EXCESS OF SUCH APPROPRIATIONS UNLESS SUCH CONTRACT OR OBLIGATION IS AUTHORIZED BY LAW * * *. (1ITALICS SUPPLIED.) THIS PROVISION HAS BEEN THE SUBJECT OF SEVERAL OPINIONS OF THE ATTORNEY GENERAL AND OF THE COURTS AS WELL AS OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT. THE LANGUAGE FROM 9 OP. ATTY. GEN. 18, WHICH FOLLOWS, SEEMS PARTICULARLY PERTINENT TO THE FIRST QUERY.

THE MEANING OF THE PROVISION IS VERY PLAIN. IT DECLARES THAT THE DEPARTMENT SHALL HAVE POWER TO BIND THE GOVERNMENT BY CONTRACT ONLY IN TWO CASES: (1,) WHERE THE CONTRACT IS EXPRESSLY AUTHORIZED BY A LAW; AND, (2,) WHERE THERE IS AN APPROPRIATION ALREADY MADE LARGE ENOUGH TO FULFILL IT. IN THE FIRST CASE THERE IS AN EXPRESS POWER TO CONTRACT FOR THE WORK; IN THE SECOND THERE IS AN IMPLIED POWER TO CONTRACT FOR SO MUCH WORK AS THE APPROPRIATION WILL PAY FOR. FOR INSTANCE: IF CONGRESS EMPOWERS THE SECRETARY OF WAR TO CONTRACT FOR CLEANING OUT THE OBSTRUCTIONS FROM A CERTAIN RIVER, THE SECRETARY MAY MAKE A CONTRACT AT ONE FOR THE WHOLE WORK; AND EVEN THOUGH NO APPROPRIATION HAS YET BEEN MADE TO MEET IT, THE FAITH OF THE GOVERNMENT WILL BE PLEDGED TO MAKE GOOD * * *.

ALSO, SEE 4 OP. ATTY. GEN. 600; 6 ID. 26; 15 ID. 235. 3 COMP. DEC. 437; 27 COMP. GEN. 452, 454.

THE COURT OF CLAIMS, IN CONSTRUING THE SECTION IN THE CASE OF COLLINS V. UNITED STATES, 15 C.1CLS. 22, 35, IN RELATION TO ARTICLE I, SECTION 9, CLAUSE 7 OF THE CONSTITUTION--- PROVIDING THAT "NO MONEY SHALL BE DRAWN FROM THE TREASURY, BUT IN CONSEQUENCE OF APPROPRIATIONS MADE BY LAW"--- RECOGNIZED THAT LEGAL OBLIGATIONS BINDING ON THE UNITED STATES MAY EXIST EVEN IN THE ABSENCE OF APPROPRIATIONS TO MEET THEM. ALSO, SEE PARSONS'S CASE, C.1CLS. 246; WINCHESTER AND POTOMAC RAILROAD CO. V. UNITED STATES, 27 C.1CLS. 494.

ACCORDINGLY, SINCE THE COMMISSIONER OF RECLAMATION WAS SPECIFICALLY AUTHORIZED BY LAW TO ENTER INTO CONTRACTS, IN EXCESS OF THE AMOUNTS APPROPRIATED--- IN AN AMOUNT NOT IN EXCESS OF $1,600,000 IN THE CASE OF THE CASHUMA UNIT OF THE SANTA BARBARA PROJECT, AND NOT IN EXCESS OF $2,000,000 AS TO THE PALISADES PROJECT--- OTHERWISE PROPER CONTRACTS NOT IN EXCESS OF THOSE AMOUNTS WILL FIRMLY OBLIGATE THE UNITED STATES FOR THEIR PAYMENT. THE FIRST QUESTION IS ANSWERED ACCORDINGLY.

AS TO THE SECOND QUESTION, IT IS CLEAR FROM WHAT IS STATED ABOVE THAT THE CONTRACT AUTHORIZATION PROVISION OF THE APPROPRIATION ACT CONTEMPLATES THE ENTERING INTO OF A FIRM CONTRACT WHICH FULLY WILL OBLIGATE THE FAITH AND CREDIT OF THE UNITED STATES TO ITS PAYMENT. THE LIABILITY OF THE UNITED STATES, ON PROPER CONTRACTS ENTERED INTO UNDER ITS AUTHORITY, IS FIXED AND CLEAR. IT IS NOT CONTINGENT IN ANY WAY ON THE APPROPRIATION NECESSARY TO IT FULFILLMENT AND THE GOVERNMENT IS FULLY OBLIGATED TO SATISFY ITS CONDITIONS. THE LIABILITY OF THE UNITED STATES ON CONTRACTS ENTERED INTO PURSUANT TO SECTION 388, TITLE 43, U.S.C. ON THE OTHER HAND "SHALL BE CONTINGENT UPON APPROPRIATIONS BEING MADE THEREFOR.' UNDER SUCH CONTRACTS, NO LEGAL OBLIGATION EXISTS TO PAY THEIR AMOUNTS UNLESS AND UNTIL APPROPRIATION IS MADE THEREFOR. ACCORDINGLY, AND SINCE NO PURPOSE IS EVIDENT FROM THE LEGISLATIVE HEARINGS ON THE APPROPRIATION PROVISIONS UNDER CONSIDERATION TO LIMIT THE AUTHORITY OF THE BUREAU OF RECLAMATION TO ENTER INTO CONTRACTS UNDER 43 U.S.C. 388, AND APPLYING THE USUAL CANON OF STATUTORY CONSTRUCTION THAT REPEAL OR MODIFICATION OF PRIOR STATUTES BY IMPLICATION IS NOT FAVORED SO THAT, UNLESS CLEARLY INCONSISTENT WITH PRIOR STATUTES, LATER LEGISLATION SHOULD NOT BE CONSTRUED AS REPEALING OR MODIFYING THE EARLIER STATUTES, IT APPEARS THAT THE AUTHORITY TO CONTRACT UNDER THE PROVISIONS OF THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1949, IS ADDITIONAL TO THE AUTHORITY TO ENTER INTO CONTINGENT CONTRACTS UNDER SECTION 12 OF THE RECLAMATION PROJECT ACT OF 1939, 43 U.S.C. 388. THE SECOND QUESTION IS ANSWERED ACCORDINGLY.