B-7980, FEBRUARY 3, 1940, 19 COMP. GEN. 702

B-7980: Feb 3, 1940

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IS TO BE DISREGARDED BECAUSE OF THE LATTER AGENCY NOT BEING "IN A POSITION TO FURNISH" SAME. THE QUESTION WHETHER THE ORDER WHICH WAS PLACED PRIOR TO THE EXPIRATION OF THE PERIOD OF AVAILABILITY FOR OBLIGATION OF THE APPROPRIATION INVOLVED WOULD AUTHORIZE THE OBLIGATING OF SAID FUNDS BEYOND THE PERIOD OF ORIGINAL AVAILABILITY. IS NOT FOR CONSIDERATION WHERE. THERE IS INVOLVED THE NECESSITY FOR A REOBLIGATION OF THE FUNDS APPARENTLY ON AN ENTIRELY DIFFERENT BASIS. 1940: I HAVE YOUR LETTER OF JANUARY 10. UPON WHICH YOUR DECISION IS DESIRED. NO MONEY HAS ACTUALLY BEEN TRANSFERRED AND NO EXPENDITURES HAVE BEEN MADE ON THE BASIS OF THIS ORDER FOR THE REASON THAT IT HAS SINCE DEVELOPED THAT THE PUBLIC BUILDINGS ADMINISTRATION.

B-7980, FEBRUARY 3, 1940, 19 COMP. GEN. 702

APPROPRIATIONS - APPLICABILITY OF FISCAL YEAR LIMITATIONS ALL APPROPRIATIONS MADE BY A DEFICIENCY ACT ENTITLED "AN ACT MAKING APPROPRIATIONS TO SUPPLY DEFICIENCIES IN CERTAIN APPROPRIATIONS FOR THE FISCAL YEAR ENDING JUNE 30, 1938, AND FOR PRIOR FISCAL YEARS, TO PROVIDE SUPPLEMENTAL APPROPRIATIONS FOR THE FISCAL YEARS ENDING JUNE 30, 1938, AND JUNE 30, 1939, AND FOR OTHER PURPOSES" MUST BE CONSIDERED ANNUAL APPROPRIATIONS SUBJECT TO FISCAL YEAR OBLIGATION LIMITATIONS, UNLESS OTHERWISE PROVIDED IN THE ACT, OR OTHERWISE EXEMPTED BY LAW, AND THUS AS NOT AVAILABLE FOR PAYMENT OF OBLIGATIONS INCURRED SUBSEQUENT TO THE FISCAL YEAR INVOLVED. AN APPROPRIATION MADE TO CARRY OUT THE PROVISIONS OF A PUBLIC RESOLUTION RELATING TO THE PREPARATION OF PLANS OR DESIGNS OF A PUBLIC BUILDING, AS DISTINGUISHED FROM ONE MADE FOR THE PURCHASE OR CONSTRUCTION OF A PUBLIC BUILDING, MAY NOT BE CONSIDERED A PUBLIC BUILDING APPROPRIATION WITHIN THE PURVIEW OF THE EXCEPTION--- ACT OF AUGUST 24, 1912, 37 STAT. 487, AS AMENDED--- FROM FISCAL YEAR OBLIGATION LIMITATIONS. AS THE ORDER FOR A MODEL OF A PUBLIC BUILDING DESIGN PLACED BY A GOVERNMENT AGENCY WITH THE PROCUREMENT DIVISION, TREASURY DEPARTMENT, UNDER SECTION 601 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 417, AS AMENDED, IS TO BE DISREGARDED BECAUSE OF THE LATTER AGENCY NOT BEING "IN A POSITION TO FURNISH" SAME, THE QUESTION WHETHER THE ORDER WHICH WAS PLACED PRIOR TO THE EXPIRATION OF THE PERIOD OF AVAILABILITY FOR OBLIGATION OF THE APPROPRIATION INVOLVED WOULD AUTHORIZE THE OBLIGATING OF SAID FUNDS BEYOND THE PERIOD OF ORIGINAL AVAILABILITY, IS NOT FOR CONSIDERATION WHERE, IN ADDITION TO OTHER PROBABLE OBJECTION, THERE IS INVOLVED THE NECESSITY FOR A REOBLIGATION OF THE FUNDS APPARENTLY ON AN ENTIRELY DIFFERENT BASIS, AND THE FUNDS INVOLVED MAY NOT NOW BE USED FOR THE PURPOSE OF THE APPROPRIATION IN THE ABSENCE OF APPROPRIATE LEGISLATION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, SMITHSONIAN GALLERY OF ART COMMISSION, FEBRUARY 3, 1940:

I HAVE YOUR LETTER OF JANUARY 10, 1940, AS FOLLOWS:

THE QUESTION HAS ARISEN IN THIS COMMISSION AS TO THE AVAILABILITY OF THE APPROPRIATION PROVIDED BY THE SECOND DEFICIENCY APPROPRIATION ACT, FISCAL YEAR 1938, APPROVED JUNE 15 (25), 1938, UPON WHICH YOUR DECISION IS DESIRED. THAT APPROPRIATION READS AS FOLLOWS:

" SMITHSONIAN GALLERY OF ART COMMISSION: TO CARRY OUT THE PROVISIONS OF SECTION 2 OF PUBLIC RESOLUTION NUMBERED 95, ENTITLED " JOINT RESOLUTION TO SET APART PUBLIC GROUND FOR THE SMITHSONIAN GALLERY OF ART, AND FOR OTHER PURPOSES," APPROVED MAY 17, 1938, FISCAL YEAR 1939, $40,000.'

PRIOR TO JULY 1, 1939, THE COMMISSION PLACED AN ORDER WITH THE PROCUREMENT DIVISION FOR THE FURNISHING BY THE PROCUREMENT DIVISION OF A MODEL, AT A COST NOT TO EXCEED $1,500, PAYABLE FROM THE ABOVE APPROPRIATION, OF THE WINNING DESIGN FOR THE SMITHSONIAN GALLERY OF ART WHICH THE COMMISSION OBTAINED UNDER THE AUTHORITY OF THE JOINT RESOLUTION OF MAY 17, 1938, 52 STAT. 399. THE TERMS OF THE ORDER CALL FOR MONTHLY REIMBURSEMENTS ON THE BASIS OF ACTUAL COST. NO MONEY HAS ACTUALLY BEEN TRANSFERRED AND NO EXPENDITURES HAVE BEEN MADE ON THE BASIS OF THIS ORDER FOR THE REASON THAT IT HAS SINCE DEVELOPED THAT THE PUBLIC BUILDINGS ADMINISTRATION, AS SUCCESSOR IN THIS REGARD TO THE PROCUREMENT DIVISION, IS NOT IN A POSITION TO FURNISH THE MODEL IN QUESTION BECAUSE OF A SPECIAL METHOD OF CONSTRUCTION WHICH HAS BEEN DETERMINED TO BE NECESSARY. SECTION 601 (C) OF THE ACT OF JUNE 30, 1932, 47 STAT. 417 ( U.S.C. TITLE 31, SEC. 686) PROVIDES THAT ORDERS FOR WORK PLACED WITH ANOTHER AGENCY SHALL BE CONSIDERED AS OBLIGATIONS UPON APPROPRIATIONS IN THE SAME MANNER AS ORDERS OR CONTRACTS PLACED WITH PRIVATE CONTRACTORS.

ALTHOUGH THE TERMS "FISCAL YEAR 1939" APPEAR IN THE LANGUAGE QUOTED FROM THE APPROPRIATION IN QUESTION, IT DOES NOT APPEAR THAT THE ACT OF JUNE 25, 1938, WAS ONE OF "THE ANNUAL APPROPRIATION BILLS" WITHIN THE MEANING OF SECTION 3690 OF THE REVISED STATUTES ( U.S.C. TITLE 31, SEC. 712), REQUIRING THE UNEXPENDED BALANCES OF APPROPRIATIONS CONTAINED IN SUCH BILLS TO BE APPLIED ONLY TO THE PAYMENT OF EXPENSES INCURRED DURING THE FISCAL YEAR FOR WHICH MADE OR TO THE FULFILLMENT OF CONTRACTS PROPERLY MADE WITHIN THAT YEAR. MOREOVER, SECTION 7 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 487, AS AMENDED ( U.S.C. TITLE 31, SEC. 718), EXCLUDES FROM APPROPRIATIONS MADE IN ANNUAL APPROPRIATION ACTS WHICH MUST BE CONSTRUED TO BE NOT PERMANENT OR AVAILABLE CONTINUOUSLY WITHOUT REFERENCE TO A FISCAL YEAR, THOSE WHICH BELONG TO THE CLASS TERMED "PUBLIC BUILDINGS.' AN EXAMINATION OF SECTION 2 OF THE JOINT RESOLUTION OF MAY 17, 1938, REVEALS THAT THE PURPOSES FOR WHICH THE APPROPRIATION IS MADE AVAILABLE RELATE WHOLLY TO THE PREPARATION OF PLANS, ETC., FOR A PUBLIC BUILDING WHICH HAVE BEEN ADMINISTRATIVELY DETERMINED TO INCLUDE CONSTRUCTION OF A MODEL. WHILE THIS APPROPRIATION IS NOT ONE FOR THE "CONSTRUCTION" OF A PUBLIC BUILDING WITHIN THE MEANING OF SECTION 1 OF THE ACT OF JUNE 23, 1874, 18 STAT. 275 ( U.S.C. TITLE 31, SEC. 682), THERE APPEARS TO BE NOTHING IN SECTION 7 OF THE ACT OF AUGUST 24, 1912, AS AMENDED, TO EXCLUDE IT FROM THE CLASS TERMED "PUBLIC BUILDINGS" THEREIN.

IF SECTION 3690 OF THE REVISED STATUTES AND THE ACT OF AUGUST 12, 1912, AS AMENDED, DO NOT APPLY, THE EXPENDITURE OF THIS APPROPRIATION BEYOND THE FISCAL YEAR 1939 WOULD NOT APPEAR TO DO VIOLENCE TO THE TERMS OF THE APPROPRIATION ITSELF, WHERE, AS IN THIS CASE, THE FUNDS HAVE BEEN SET ASIDE FOR A SPECIFIC PURPOSE DURING THE FISCAL YEAR 1939. MOREOVER, EVEN IF THE STATUTORY RESTRICTIONS ON AVAILABILITY REFERRED TO APPLY HERE, THE FACT THAT FUNDS WERE DEFINITELY ALLOCATED FOR THE PURPOSES OF CONSTRUCTING A MODEL PRIOR TO THE END OF THE FISCAL YEAR 1939 WOULD APPEAR TO BRING THESE FUNDS WITHIN THE CATEGORY OF THOSE AVAILABLE FOR THE PAYMENT OF "EXPENSES PROPERLY INCURRED DURING THAT YEAR" WITHIN THE MEANING OF SECTION 3690 OF THE REVISED STATUTES.

THE SECOND CONCLUSION INDICATED IN THE PRECEDING PARAGRAPH WOULD NECESSARILY FOLLOW IF THE PUBLIC BUILDINGS ADMINISTRATION WERE IN A POSITION TO PROCEED WITH CONSTRUCTION OF THE MODEL, IN VIEW OF THE EXPRESS LANGUAGE OF SECTION 601 (C) OF THE ACT OF JUNE 30, 1932. IF THIS BE TRUE, IT WOULD APPEAR THAT THE COMMISSION MIGHT NOW CANCEL THE ORDER WITH THE PROCUREMENT DIVISION AND ITSELF UNDERTAKE CONSTRUCTION OF THE MODEL THROUGH THE ARCHITECT WHO PREPARED THE DESIGNS FOR THE BUILDING AND WHO, IT IS BELIEVED, IS BEST QUALIFIED TO INTERPRET THEM- - MAKING THE EXPENDITURES THEREFOR, NOT TO EXCEED $1,500, UNDER AUTHORITY OF SECTION 2 (C) OF THE JOINT RESOLUTION OF MAY 17, 1938, AUTHORIZING THE COMMISSION TO EMPLOY TECHNICAL ASSISTANCE AND MAKE EXPENDITURES NECESSARY FOR THE PERFORMANCE OF THE DUTIES VESTED IN THE COMMISSION. THIS ALTERNATIVE IS THE ONE DEEMED MOST FEASIBLE UNDER THE CIRCUMSTANCES, AND YOUR DECISION AS TO WHETHER THE UNOBLIGATED BALANCE OF THE APPROPRIATION PROVIDED BY THE ACT OF JUNE 25, 1938, IS AVAILABLE THEREFOR IS ACCORDINGLY REQUESTED. COPY OF THE ORDER WHICH THIS COMMISSION PLACED WITH THE PROCUREMENT DIVISION IS ENCLOSED.

IF YOUR REPLY TO THE FOREGOING SHOULD BE IN THE NEGATIVE, IT WILL BE APPRECIATED IF YOU WILL ADVISE WHETHER YOU WOULD INTERPOSE ANY OBJECTION TO THE PUBLIC BUILDINGS ADMINISTRATION EMPLOYING THE ARCHITECTS WHO DESIGNED THE BUILDING TO CONSTRUCT THE MODEL, UNDER A PROFESSIONAL SERVICE CONTRACT PURSUANT TO SECTION 3 (B) OF THE ABOVE MENTIONED JOINT RESOLUTION AUTHORIZING THE DIRECTOR OF PROCUREMENT TO "SUPERVISE THE PREPARATION OF THE PLANS AND SPECIFICATIONS, MAKE ALL NECESSARY CONTRACTS, AND SUPERVISE CONSTRUCTION" OF THE BUILDING, AND THE ACT OF MARCH 31, 1930, 46 STAT. 137, AUTHORIZING THE SECRETARY OF THE TREASURY TO EMPLOY OUTSIDE PROFESSIONAL SERVICES, BY CONTRACT OR OTHERWISE, WITHOUT COMPETITION, WITH THE UNDERSTANDING THAT THE COST THEREOF (NOT EXCEEDING $1,500) INCURRED BY THE PUBLIC BUILDINGS ADMINISTRATION IS TO BE REIMBURSED BY THIS COMMISSION IN ACCORDANCE WITH THE TERMS OF ITS AGREEMENT WITH THE PUBLIC BUILDINGS ADMINISTRATION.

SUBSECTIONS (A) AND (C) OF SECTION 2 OF THE ACT OF MAY 17, 1938, 52 STAT. 399, 400, PROVIDE:

SEC. 2. (A) A COMMISSION, TO BE CALLED THE SMITHSONIAN GALLERY OF ART COMMISSION (HEREINAFTER REFERRED TO AS THE " COMMISSION"), COMPRISING A MEMBER TO BE DESIGNATED BY THE REGENTS OF THE SMITHSONIAN INSTITUTION; THE SECRETARY OF THE SMITHSONIAN INSTITUTION; A MEMBER TO BE DESIGNATED BY THE SECRETARY OF THE TREASURY; THE CHAIRMAN OF THE NATIONAL CAPITAL PARK AND PLANNING COMMISSION; THE CHAIRMAN OF THE COMMISSION OF FINE ARTS; THE CHAIRMAN OF THE JOINT COMMITTEE ON THE LIBRARY; THE CHAIRMAN OF THE COMMITTEE ON THE LIBRARY OF THE HOUSE; AND THE CHAIRMAN OF THE ART COMMISSION OF THE SMITHSONIAN INSTITUTION IS HEREBY CREATED AND AUTHORIZED TO MAKE ALL PRELIMINARY INVESTIGATIONS AND TO SECURE APPROPRIATE DESIGNS, BY COMPETITION OR OTHERWISE, PREFERABLY BY COMPETITION, FOR A BUILDING TO BE CONSTRUCTED ON THE SITE ABOVE DESCRIBED, SAID BUILDING TO BE SO DESIGNED AS TO PERMIT OF FUTURE EXPANSION, PARKING ARRANGEMENTS, AND FOR LANDSCAPING ITS SURROUNDINGS. THE COMMISSION SHALL CHOOSE A CHAIRMAN FROM ITS OWN MEMBERSHIP.

(C) THE COMMISSION MAY EMPLOY SUCH TECHNICAL, CLERICAL, AND OTHER ASSISTANTS AND MAKE SUCH EXPENDITURES (INCLUDING EXPENDITURES FOR PERSONAL SERVICES AT THE SEAT OF GOVERNMENT AND ELSEWHERE) AS MAY BE NECESSARY FOR THE PERFORMANCE OF THE DUTIES VESTED IN THE COMMISSION: PROVIDED, THAT ARCHITECTURAL, ENGINEERING, AND OTHER NECESSARY CONSULTANTS MAY BE EMPLOYED WITHOUT REGARD TO THE CIVIL-SERVICE LAWS AND THE CLASSIFICATION ACT OF 1923, AS AMENDED. ALL EXPENDITURES OF THE COMMISSION, INCLUDING THE COST OF ANY DESIGN WHICH MAY BE ACCEPTED, AND THE COMPENSATION OF A JURY OF AWARD IN THE EVENT A COMPETITION IS HELD, SHALL BE ALLOWED AND PAID UPON PRESENTATION OF ITEMIZED VOUCHERS THEREFOR APPROVED BY ITS CHAIRMAN. TO CARRY OUT THE PROVISIONS OF THIS SECTION, THERE IS HEREBY AUTHORIZED TO BE APPROPRIATED THE SUM OF *40,000.

THE SECOND DEFICIENCY ACT OF 1938, APPROVED JUNE 25, 1938, 52 STAT. 1114, IS ENTITLED "AN ACT MAKING APPROPRIATIONS TO SUPPLY DEFICIENCIES IN CERTAIN APPROPRIATIONS FOR THE FISCAL YEAR ENDING JUNE 30, 1938, AND FOR PRIOR FISCAL YEARS, TO PROVIDE SUPPLEMENTAL APPROPRIATIONS FOR THE FISCAL YEARS ENDING JUNE 30, 1938, AND JUNE 30, 1939, AND FOR OTHER PURPOSES.' ACCORDINGLY, ALL APPROPRIATIONS MADE BY SAID ACT MUST BE CONSIDERED ANNUAL APPROPRIATIONS SUBJECT TO FISCAL YEAR LIMITATIONS, UNLESS OTHERWISE PROVIDED IN THE ACT, OR OTHERWISE EXEMPTED BY LAW, AND IN THAT CONNECTION IT IS NOTED THAT THE APPROPRIATION QUOTED IN YOUR SUBMISSION, 52 STAT. 1118, PROVIDES IN SPECIFIC TERMS THAT IT IS FOR THE "FISCAL YEAR 1939.' SEE DECISIONS A-35995, JULY 23, 1931, AND A 39436, NOVEMBER 16, 1931. ALSO, AS THE APPROPRIATION IS MADE TO CARRY OUT PROVISIONS OF SECTION 2 OF THE ACT RELATING TO THE PREPARATION OF PLANS OR DESIGNS AS DISTINGUISHED FROM ONE MADE FOR THE PURCHASE OR CONSTRUCTION OF A PUBLIC BUILDING, IT MAY NOT BE CONSIDERED A PUBLIC BUILDING APPROPRIATION WITHIN THE PURVIEW OF THE ACT OF AUGUST 24, 1912, 37 STAT. 487, AS AMENDED. 1 COMP. GEN. 435; ID. 532; 2 ID. 820; 7 ID. 619; 10 ID. 454. ACCORDINGLY, WITH RESPECT TO THE QUERY WHETHER THE APPROPRIATION IS SUBJECT TO FISCAL YEAR RESTRICTIONS IT MUST BE HELD THAT SAID APPROPRIATION IS ONE FOR THE FISCAL YEAR 1939 AND IS NOT AVAILABLE FOR THE PAYMENT OF OBLIGATIONS INCURRED SUBSEQUENT TO JUNE 30, 1939.

YOUR LETTER PRESENTS THE FURTHER QUESTION WHETHER THE ORDER PLACED BY THE COMMISSION WITH THE PROCUREMENT DIVISION UNDER DATE OF JUNE 30, 1939, MAY BE CONSIDERED, UNDER SECTION 601 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 417, AS AMENDED, AS AN ORDER OBLIGATING THE FUNDS DURING THE FISCAL YEAR 1939 SO THAT SAID FUNDS NOW MAY BE CONSIDERED AVAILABLE FOR EXPENDITURE BY EITHER THE PUBLIC BUILDINGS ADMINISTRATION OR BY YOUR COMMISSION FOR THE PURPOSE CONTEMPLATED BY SAID ORDER.

THE ORDER IN QUESTION IS IN PART AS FOLLOWS:

YOU ARE AUTHORIZED TO CONSTRUCT THE ABOVE MODEL AT A COST NOT TO EXCEED $1,500.00; AND YOU WILL BE REIMBURSED MONTHLY ON AN ACTUAL COST BASIS. ONE OF THE PREREQUISITES OF SECTION 601 IS THAT THE ORDER FOR SUPPLIES OR SERVICES BY ONE AGENCY OF THE GOVERNMENT TO ANOTHER MUST BE FOR SUPPLIES OR SERVICES WHICH THE REQUISITIONED AGENCY "MAY BE IN A POSITION TO SUPPLY OR EQUIPPED TO RENDER.' AND SINCE IT IS STATED IN YOUR LETTER THAT THE PUBLIC BUILDINGS ADMINISTRATION, AS SUCCESSOR TO THE PROCUREMENT DIVISION,"IS NOT IN A POSITION TO FURNISH THE MODEL IN QUESTION" IT IS AT LEAST QUESTIONABLE WHETHER THERE WAS A VALID ORDER WITHIN THE PURVIEW OF SAID SECTION 601. SEE IN THIS CONNECTION DECISIONS OF DECEMBER 2, 1939, B -7071, 19 COMP. GEN. 544, AND 18 COMP. GEN. 262. IN ANY EVENT, SINCE THE ORDER AS SUCH MUST BE DISREGARDED, THUS NECESSITATING A REOBLIGATION OF THE FUNDS (DECISION OF MARCH 13, 1939, B-1750) APPARENTLY ON AN ENTIRELY DIFFERENT BASIS, EITHER BY THE PUBLIC BUILDINGS ADMINISTRATION OR BY YOUR COMMISSION, THE QUESTION OF WHETHER SAID ORDER CREATED AN OBLIGATION AGAINST THE APPROPRIATION IS NO LONGER FOR CONSIDERATION.

IN VIEW OF THE FOREGOING A DISCUSSION OF THE ALTERNATIVE SUGGESTIONS CONTAINED IN THE LAST TWO PARAGRAPHS OF YOUR LETTER APPEARS UNNECESSARY, IT BEING SUFFICIENT TO SAY THAT THE USE OF THE UNEXPENDED BALANCE IN THE APPROPRIATION IN QUESTION IS NOT AUTHORIZED UNLESS AND UNTIL SUCH USE BE SPECIFICALLY PROVIDED FOR HEREAFTER BY APPROPRIATE LEGISLATION.