B-93621, JUNE 16, 1950, 29 COMP. GEN. 504

B-93621: Jun 16, 1950

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EVEN THOUGH FUNDS HAVE NOT BEEN APPROPRIATED BY CONGRESS TO COVER THE CONTRACT OBLIGATIONS. 1950: REFERENCE IS MADE TO LETTER DATED MARCH 8. AS FOLLOWS: ANTHRACITE RESEARCH LABORATORY: THE DIRECTOR OF THE BUREAU OF MINES IS AUTHORIZED TO ENTER INTO CONTRACTS (NOT TO EXCEED $300. OR AGENCY IS AUTHORIZED TO HAVE CONSTRUCTED- - INCLUDING THE PREPARATION OF PLANS. THAT THE LANGUAGE MERELY AUTHORIZES THE TRANSFER TO THE ADMINISTRATOR OF ANY FUNDS WHICH HAVE BEEN APPROPRIATED TO THE OTHER FEDERAL AGENCY FOR SUCH PURPOSES. IF FUNDS HAVE BEEN APPROPRIATED THIS PROVISION AUTHORIZES THEIR TRANSFER TO THE ADMINISTRATOR. IT DOES NOT PRECLUDE THE ADMINISTRATOR FROM ENTERING INTO CONTRACTS AUTHORIZED BY CONGRESS BEFORE FUNDS ARE APPROPRIATED.

B-93621, JUNE 16, 1950, 29 COMP. GEN. 504

DEPARTMENTS AND ESTABLISHMENTS - SERVICES BETWEEN - AUTHORITY TO CONTRACT PRIOR TO AVAILABILITY OF APPROPRIATED FUNDS IN VIEW OF THE SPECIFIC AUTHORIZATION IN THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1950, TO ENTER INTO CONTRACTS FOR THE COMPLETION OF THE CONSTRUCTION AND EQUIPMENT OF AN ANTHRACITE RESEARCH LABORATORY, THE ADMINISTRATOR OF GENERAL SERVICES MAY, PURSUANT TO THE AUTHORITY CONTAINED IN THE ACT OF JUNE 25, 1910, AS AMENDED, ENTER INTO CONTRACTS ON BEHALF OF THE BUREAU OF MINES FOR COMPLETION OF THE LABORATORY, EVEN THOUGH FUNDS HAVE NOT BEEN APPROPRIATED BY CONGRESS TO COVER THE CONTRACT OBLIGATIONS.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE INTERIOR, JUNE 16, 1950:

REFERENCE IS MADE TO LETTER DATED MARCH 8, 1950, FROM THE ACTING ASSISTANT SECRETARY OF THE INTERIOR, REQUESTING A DECISION AS TO WHETHER, UNDER THE CIRCUMSTANCES REPORTED THEREIN, THE GENERAL SERVICES ADMINISTRATION MAY LEGALLY EXECUTE ON BEHALF OF YOUR DEPARTMENT CONTRACTS FOR THE COMPLETION OF CONSTRUCTION AND EQUIPMENT OF THE ANTHRACITE RESEARCH LABORATORY AT SCHUYLKILL HAVEN, PENNSYLVANIA, AS AUTHORIZED BY THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1950, PUBLIC LAW 350, APPROVED OCTOBER 12, 1949, 63 STAT. 765, 789, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

ANTHRACITE RESEARCH LABORATORY: THE DIRECTOR OF THE BUREAU OF MINES IS AUTHORIZED TO ENTER INTO CONTRACTS (NOT TO EXCEED $300,000) FOR THE COMPLETION OF CONSTRUCTION AND EQUIPMENT OF THE ANTHRACITE RESEARCH LABORATORY AT SCHUYLKILL HAVEN, PENNSYLVANIA.

IT APPEARS FROM THE LETTER OF MARCH 8, 1950, THAT YOUR DEPARTMENT REQUESTED THE GENERAL SERVICES ADMINISTRATION TO ENTER INTO, ON BEHALF OF THE BUREAU OF MINES, THE CONTRACTS AUTHORIZED BY THE ABOVE-QUOTED PROVISION OF THE ACT OF OCTOBER 12, 1949, PURSUANT TO THE AUTHORITY CONTAINED IN THE ACT OF JUNE 25, 1910, AS AMENDED BY THE ACT OF JUNE 15, 1938, 40 U.S.C. 265. THE GENERAL SERVICES ADMINISTRATION, HOWEVER, HAS REFRAINED FROM ACTING ON YOUR DEPARTMENT'S REQUEST BECAUSE OF DOUBT AS TO WHETHER THE ACT OF JUNE 25, 1910, AS AMENDED, AUTHORIZES THE ADMINISTRATOR TO ENTER INTO SUCH CONTRACTS UNTIL CONGRESS APPROPRIATES MONEY TO PAY FOR THE COSTS WHICH WOULD BE INCURRED THEREUNDER.

THE ACT OF JUNE 25, 1910, AS AMENDED, PROVIDES THAT THE ADMINISTRATOR OF GENERAL SERVICES (SEE SECTION 103 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 380) MAY IN HIS DISCRETION, UPON THE REQUEST OF THE HEAD OF ANY OTHER EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR OTHER FEDERAL AGENCY, CARRY OUT THE CONSTRUCTION OF ANY BUILDING WHICH ANY SUCH EXECUTIVE DEPARTMENT, ESTABLISHMENT, OR AGENCY IS AUTHORIZED TO HAVE CONSTRUCTED- - INCLUDING THE PREPARATION OF PLANS, DRAWINGS, DESIGNS, SPECIFICATIONS, AND ESTIMATES * * * THE EXECUTION OF CONTRACTS, AND SUPERVISION OF CONSTRUCTION: PROVIDED, THAT FUNDS APPROPRIATED TO OTHER EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, OR OTHER FEDERAL AGENCIES FOR THE FOREGOING PURPOSES SHALL BE AVAILABLE FOR TRANSFER TO AND EXPENDITURE BY THE PUBLIC BUILDINGS ADMINISTRATION ( GENERAL SERVICES ADMINISTRATION) IN WHOLE OR IN PART, EITHER IN REIMBURSEMENT OF THE PROPER APPROPRIATIONS OF THE PUBLIC BUILDINGS ADMINISTRATION ( GENERAL SERVICES ADMINISTRATION), FOR THE COST OF SUCH WORK, OR AS ADVANCES TO SPECIAL ACCOUNTS FOR THE PURPOSE OF PROVIDING FOR THE PROSECUTION OF SAID WORK.

THE ACTING ASSISTANT SECRETARY STATES THAT YOUR DEPARTMENT DOES NOT BELIEVE THAT THE LANGUAGE OF THE PROVISO CONTAINED IN THE ACT OF JUNE 25, 1910, AS AMENDED, REQUIRES THAT MONEY MUST BE APPROPRIATED BEFORE THE ADMINISTRATOR MAY EXERCISE HIS CONTRACTING AUTHORITY; THAT THE LANGUAGE MERELY AUTHORIZES THE TRANSFER TO THE ADMINISTRATOR OF ANY FUNDS WHICH HAVE BEEN APPROPRIATED TO THE OTHER FEDERAL AGENCY FOR SUCH PURPOSES, I.E., IF FUNDS HAVE BEEN APPROPRIATED THIS PROVISION AUTHORIZES THEIR TRANSFER TO THE ADMINISTRATOR, BUT IT DOES NOT PRECLUDE THE ADMINISTRATOR FROM ENTERING INTO CONTRACTS AUTHORIZED BY CONGRESS BEFORE FUNDS ARE APPROPRIATED; AND THAT IT DOES NOT APPEAR REASONABLE TO SUPPOSE THAT CONGRESS INTENDED TO AUTHORIZE THE DIRECTOR OF THE BUREAU OF MINES TO ENTER INTO CONTRACTS BUT PROHIBIT HIM FROM USING THE ADMINISTRATOR'S SKILLED AND EXPERIENCED PERSONNEL IN ACHIEVING THE MOST EFFECTIVE AND ECONOMICAL CONTRACTING UNDER THE CONTRACT AUTHORIZATION OF OCTOBER 12, 1949.

IN VIEW OF THE SPECIFIC AUTHORIZATION CONTAINED IN THE ACT OF OCTOBER 12, 1949, SUPRA, IT IS CLEAR THAT THE DIRECTOR OF THE BUREAU OF MINES MAY ENTER INTO PROPER CONTRACTS NOT IN EXCESS OF $300,000 PRIOR TO THE CONGRESS APPROPRIATING MONEY TO PAY FOR THE COSTS WHICH WOULD BE INCURRED THEREUNDER, AND THAT SUCH CONTRACTS WILL FIRMLY OBLIGATE THE UNITED STATES FOR THEIR PAYMENT. 28 COMP. GEN. 163. AND, IT SEEMS EQUALLY CLEAR THAT, BY VIRTUE OF THE AUTHORIZATION CONTAINED IN THE 1910 ACT, AS AMENDED BY THE 1938 ACT, FOR "THE EXECUTION OF CONTRACTS" BY THE ADMINISTRATOR OF GENERAL SERVICES, THAT OFFICIAL MAY, UNDER THE AUTHORITY OF THE DIRECTOR OF THE BUREAU OF MINES, ENTER INTO CONTRACTS FOR THE COMPLETION OF THE CONSTRUCTION AND EQUIPMENT OF THE ANTHRACITE RESEARCH LABORATORY PROVIDED BY THE ACT OF OCTOBER 12, 1949, UPON THE REQUEST OF YOUR DEPARTMENT.

PRESUMABLY THE DOUBT ENTERTAINED BY THE GENERAL SERVICES ADMINISTRATION IN THE MATTER IS THAT THE TERMS OF THE PROVISO IN THE 1910 ACT, AS AMENDED, SEEM TO REQUIRE, AS A CONDITION PRECEDENT TO THE PERFORMANCE OF THE WORK, THE EXISTENCE OF APPROPRIATED FUNDS. WHILE IT IS TRUE THAT THE USUAL FUNCTION OF A PROVISO IS TO LIMIT OR TO MODIFY THE GENERAL LEGISLATIVE PROVISIONS TO WHICH IT IS ATTACHED, IT IS NOT AN UNCOMMON PRACTICE TO ENACT INDEPENDENT LEGISLATION BY MEANS OF PROVISOS, THE WORD "PROVIDED" OFTEN BEING USED INDISCRIMINATELY. 23 COMP. GEN. 387. BUT, IN ANY EVENT, THAT A PURPOSE SUCH AS ABOVE REFERRED TO WAS NOT INTENDED SEEMS EVIDENT FROM THE LEGISLATIVE HISTORY OF THE MEASURE. SEE HOUSE REPORT NO. 1920, 75TH CONGRESS, ACCOMPANYING H.R. 9683, WHICH WAS ENACTED INTO THE LAW AMENDING THE ACT OF JUNE 25, 1910. IT IS INDICATED IN SAID REPORT THAT PRIOR TO ITS AMENDMENT THE 1910 ACT HAD BEEN CONSTRUED AS REQUIRING THAT THE RESPONSIBILITY FOR THE MAKING OF THE CONTRACTS AND FOR THE EXPENDITURE OF FUNDS APPROPRIATED TO EXECUTIVE AGENCIES FOR BUILDINGS REMAIN WITH THE EXECUTIVE HEADS OF SUCH AGENCIES, AND THAT SUCH FUNCTIONS COULD NOT PROPERLY BE PERFORMED BY THE PROCUREMENT DIVISION OF THE TREASURY. IT IS FURTHER SHOWN THAT THE SOLE PURPOSE OF THE LEGISLATION WAS TO OVERCOME THE EFFECT OF THIS INTERPRETATION BY PERMITTING THE PROCUREMENT DIVISION TO EXECUTE CONTRACTS FOR THE CONSTRUCTION OF PUBLIC BUILDINGS AND TO PERMIT THE TRANSFER TO THAT DIVISION OF SUCH APPROPRIATIONS FROM OTHER FEDERAL AGENCIES AS MAY BE AVAILABLE FOR THAT PURPOSE, EITHER BY REIMBURSEMENT OR AS ADVANCES TO COVER THE COST OF THE WORK.

IN VIEW OF THE FOREGOING, AND SINCE THERE IS NOTHING OTHERWISE IN THE LEGISLATIVE HISTORY OF THE MEASURE FORMING ANY REASONABLE BASIS FOR THE VIEW THAT IT WAS THE INTENTION TO PRECLUDE THE ADMINISTRATOR FROM ENTERING INTO CONTRACTS AUTHORIZED BY LAW UNTIL AN APPROPRIATION HAD BEEN MADE, THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO THE ADMINISTRATOR OF GENERAL SERVICES ENTERING INTO THE CONTRACTS ON BEHALF OF YOUR DEPARTMENT PURSUANT TO THE ACT OF JUNE 25, 1910, AS AMENDED, IF HE SO DESIRES. OBVIOUSLY, UNTIL AN APPROPRIATION IS MADE TO COVER THE CONTRACT OBLIGATION, PAYMENT CANNOT BE EFFECTED. BUT, OF COURSE, THIS WOULD BE TRUE WHETHER THE CONTRACTS WERE ENTERED INTO BY YOUR DEPARTMENT OR BY THE GENERAL SERVICES ADMINISTRATION.