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B-152420, FEB. 25, 1964

B-152420 Feb 25, 1964
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THE PROVISIONS OF 31 U.S.C. 686 WERE HELD TO PROVIDE NO AUTHORITY FOR EXECUTION OF THE AGREEMENTS IN QUESTION SINCE THE ARMY NATIONAL GUARD OF A GIVEN STATE WAS CONSIDERED TO BE A STATE AGENCY RATHER THAN AN "EXECUTIVE DEPARTMENT. WE STATED THAT SINCE THE OFFICE OF STATE ADJUTANT GENERAL IS A STATE OFFICE ADMINISTERED UNDER THE GOVERNOR OF THE STATE. IS IN THE INTEREST OF THE GOVERNMENT. CONCERNING 32 U.S.C. 709 IT WAS HELD THAT SINCE SUCH PROVISION OF LAW AUTHORIZES THE EMPLOYMENT OF TECHNICIANS (CARETAKERS) ONLY AS NEEDED TO CARE FOR ARMY NATIONAL GUARD MATERIEL. IT IS NOT THE ADJUTANT GENERAL OF THE STATE WHO PLACES THE ORDER. AUTHORITIES OF THE ACTIVE ARMY WHO DETERMINE THAT THE ORDER IS IN THE BEST INTEREST OF THE GOVERNMENT.

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B-152420, FEB. 25, 1964

TO THE SECRETARY OF THE ARMY:

BY LETTER OF DECEMBER 30, 1963, MR. E. T. PRATT, JR., ASSISTANT SECRETARY OF THE ARMY (FINANCIAL MANAGEMENT) ASKED THAT, IN VIEW OF ADDITIONAL MATTERS PRESENTED THEREIN, WE RECONSIDER OUR DECISION OF OCTOBER 3, 1963, B-152420, IN WHICH WE HELD THAT NEITHER THE PROVISIONS OF SECTION 601 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 417, AS AMENDED, 31 U.S.C. 686, NOR 32 U.S.C. 709 PROVIDED LEGAL AUTHORITY FOR AGREEMENTS BETWEEN UNITED STATES ARMY CORPS COMMANDERS AND STATE ADJUTANTS GENERAL FOR THE MAINTENANCE OF ARMY RESERVE EQUIPMENT.

THE PROVISIONS OF 31 U.S.C. 686 WERE HELD TO PROVIDE NO AUTHORITY FOR EXECUTION OF THE AGREEMENTS IN QUESTION SINCE THE ARMY NATIONAL GUARD OF A GIVEN STATE WAS CONSIDERED TO BE A STATE AGENCY RATHER THAN AN "EXECUTIVE DEPARTMENT, ESTABLISHMENT, BUREAU OR OFFICE" WITHIN THE MEANING OF THOSE TERMS AS USED IN 31 U.S.C. 686. IN THAT DECISION, WE STATED THAT SINCE THE OFFICE OF STATE ADJUTANT GENERAL IS A STATE OFFICE ADMINISTERED UNDER THE GOVERNOR OF THE STATE, SUCH OFFICIAL COULD NOT BE CONSIDERED TO BE THE HEAD OF A FEDERAL EXECUTIVE DEPARTMENT, ESTABLISHMENT, BUREAU OR OFFICE WHO, UNDER 31 U.S.C. 686 MUST DETERMINE THAT AN ORDER PLACED WITH ANOTHER FEDERAL EXECUTIVE DEPARTMENT, ETC., IS IN THE INTEREST OF THE GOVERNMENT.

CONCERNING 32 U.S.C. 709 IT WAS HELD THAT SINCE SUCH PROVISION OF LAW AUTHORIZES THE EMPLOYMENT OF TECHNICIANS (CARETAKERS) ONLY AS NEEDED TO CARE FOR ARMY NATIONAL GUARD MATERIEL, ARMAMENT, AND EQUIPMENT, IT PROVIDED NO AUTHORITY FOR THE EXECUTION OF AGREEMENTS CONCERNING THE HIRING OF ADDITIONAL TECHNICIANS TO REPAIR ARMY RESERVE EQUIPMENT WITH THE COST BEING REIMBURSED TO THE APPROPRIATION FOR OPERATION AND MAINTENANCE, ARMY, NATIONAL GUARD.

THE ASSISTANT SECRETARY NOW POINTS OUT THAT, WITH REFERENCE TO 31 U.S.C. 686, IT IS NOT THE ADJUTANT GENERAL OF THE STATE WHO PLACES THE ORDER, BUT AUTHORITIES OF THE ACTIVE ARMY WHO DETERMINE THAT THE ORDER IS IN THE BEST INTEREST OF THE GOVERNMENT. WE WERE FULLY AWARE OF THE FACT THAT THE ADJUTANT GENERAL OF THE STATE DID NOT PLACE THE ORDER. WE MERELY INTENDED TO DEMONSTRATE THAT UNDER 31 U.S.C. 686 THE AGENCY PLACING THE ORDER AND THE REQUISITIONED AGENCY MUST BOTH BE FEDERAL AGENCIES. THE ASSISTANT SECRETARY ALSO POINTS OUT THAT NATIONAL GUARD TECHNICIANS HAVE BEEN HELD BY THE COURTS TO BE EMPLOYEES OF THE UNITED STATES WITHIN THE MEANING OF THE FEDERAL TORT CLAIMS ACT AND THAT THE NATIONAL GUARD HAS BEEN RECOGNIZED IN OUR DECISION OF MAY 9, 1963, B 151095, 42 COMP. GEN.---, AS BEING A FEDERAL INSTRUMENTALITY INSOFAR AS A STATE GASOLINE TAX IS CONCERNED.

THE FACT THAT THE NATIONAL GUARD MAY BE CONSIDERED FOR CERTAIN PURPOSES TO BE A FEDERAL INSTRUMENTALITY OR THAT EMPLOYEES OF THE NATIONAL GUARD MAY, FOR CERTAIN PURPOSES, BE CONSIDERED TO BE FEDERAL EMPLOYEES DOES NOT, OF COURSE, NECESSARILY REQUIRE THE CONCLUSION THAT A STATE NATIONAL GUARD UNIT IS A FEDERAL AGENCY WITHIN THE PURVIEW OF 31 U.S.C. 686. FURTHERMORE, THE ASSISTANT SECRETARY STATES THAT---

"* * * IT IS OF COURSE CLEAR THAT THE NATIONAL GUARD NOT IN ACTIVE FEDERAL SERVICE (WITH THE EXCEPTION PERHAPS OF THE DISTRICT OF COLUMBIA NATIONAL GUARD (O-TOOLE V. U.S., 206 F.2D 912) ( IS NOT A FEDERAL EXECUTIVE DEPARTMENT, ESTABLISHMENT, BUREAU OR OFFICE.'

IN VIEW OF THE ABOVE AND INASMUCH AS 31 U.S.C. 686 CLEARLY CONTEMPLATES THE MAKING OF AGREEMENTS FOR SERVICES, SUPPLIES, ETC., ONLY BETWEEN FEDERAL AGENCIES, WE SEE NO BASIS FOR HOLDING THAT SUCH PROVISION OF LAW AUTHORIZES AN AGREEMENT TO BE ENTERED INTO BETWEEN A FEDERAL AGENCY ON THE ONE HAND AND A STATE AGENCY ON THE OTHER. ACCORDINGLY, OUR PREVIOUS DECISION ON THIS MATTER MUST BE SUSTAINED.

THE ASSISTANT SECRETARY THEN SUGGESTS THAT IF WE AGAIN CONCLUDE THAT 31 U.S.C. 686 IS NOT APPLICABLE TO THESE REPAIR AND MAINTENANCE TRANSACTIONS, IT MAY BE THAT 10 U.S.C. 2205 PROVIDES A BASIS FOR CREDITING THE REIMBURSEMENTS TO THE APPROPRIATE NATIONAL GUARD APPROPRIATION TO PERMIT THE PAYMENT OF THE SALARIES OF THE ADDITIONAL TECHNICIANS. THIS SECTION OF TITLE 10, UNITED STATES CODE, PROVIDES IN PART THAT---

"REIMBURSEMENTS MADE TO APPROPRIATIONS OF THE DEPARTMENT OF DEFENSE OR A DEPARTMENT OR AGENCY THEREOF UNDER SECTION 686 OF TITLE 31, OR OTHER AMOUNTS PAID BY OR ON BEHALF OF A DEPARTMENT OR AGENCY OF THE DEPARTMENT OF DEFENSE TO ANOTHER DEPARTMENT OR AGENCY OF THE DEPARTMENT OF DEFENSE, OR BY OR ON BEHALF OF PERSONNEL OF ANY DEPARTMENT OR ORGANIZATION, FOR SERVICES RENDERED OR SUPPLIES FURNISHED, MAY BE CREDITED TO AUTHORIZED ACCOUNTS. * * *"

RELATIVE TO THIS MATTER, HE STATES THAT---

"* * * REGARDLESS OF THE CAPACITY IN WHICH THE STATE ADJUTANT GENERAL MAY BE ACTING IN SIGNING THE AGREEMENT FOR MAINTENANCE SERVICES, HE DOES CONSENT, IN THAT AGREEMENT, TO THE PAYMENT OF THE REIMBURSEMENTS TO THE APPROPRIATION "OPERATION AND MAINTENANCE, ARMY NATIONAL GUARD.' THIS IS AN APPROPRIATION OF THE UNITED STATES, ADMINISTERED BY AGENTS OF THE FEDERAL GOVERNMENT, AND REIMBURSEMENTS TO IT, PURSUANT TO THE MENTIONED AGREEMENTS, ARE MADE TO AND CREDITED BY MILITARY DISBURSING OFFICERS. THUS IT WOULD APPEAR THAT THE REIMBURSEMENT PAYMENTS ARE MADE TO AN AGENCY OF THE DEPARTMENT OF DEFENSE. SECTION 2205 OF TITLE 10, U.S.C. STATES THAT AMOUNTS PAID BY OR ON BEHALF OF A DEPARTMENT OR AGENCY OF THE DEPARTMENT OF DEFENSE TO ANOTHER DEPARTMENT OR AGENCY OF THE DEPARTMENT OF DEFENSE MAY BE CREDITED TO AUTHORIZED ACCOUNTS. BY AGREEMENT THE REIMBURSEMENTS ARE PAYABLE TO AN AGENCY OF THE DEPARTMENT OF DEFENSE, AND IT WOULD APPEAR THAT UNDER 10 U.S.C. 2205 THEY ARE PROPERLY CREDITABLE TO THE APPROPRIATION "OPERATION AND MAINTENANCE, ARMY NATIONAL GUARD," TO BE USED UNDER THE TERMS OF THAT APPROPRIATION.'

IT IS EXPLAINED ON PAGE A-11 OF HOUSE REPORT NO. 1401, 87TH CONGRESS, THAT THE PURPOSE OF 10 U.S.C. 2205 IS TO AUTHORIZE THE DEPARTMENT OF DEFENSE TO OPERATE AS AN INTEGRATED DEPARTMENT BY PERMITTING SUPPLIES TO BE FURNISHED AND SERVICES TO BE RENDERED WITHIN AND AMONG AGENCIES OF THE DEPARTMENT OF DEFENSE AND TO PROVIDE THAT REIMBURSEMENTS THEREFOR BE CREDITED TO AUTHORIZED ACCOUNTS. REFERENCE ALSO IS MADE THEREIN TO PAGES 23 AND 24 OF SENATE REPORT NO. 366, 81ST CONGRESS, WHEREIN IT IS FURTHER EXPLAINED, IN PART, THAT SUCH SECTION ORIGINALLY WAS INTENDED TO SIMPLIFY PROCEDURES OTHERWISE REQUIRED UNDER THE ECONOMY ACT.

IT THUS APPEARS THAT 10 U.S.C. 2205 IS APPLICABLE ONLY WITH RESPECT TO SERVICES PERFORMED PURSUANT TO 31 U.S.C. 686 OR TO SERVICES PERFORMED BY ONE AGENCY OR DEPARTMENT OF THE DEPARTMENT OF DEFENSE FOR ANOTHER AGENCY OR DEPARTMENT OF THE DEPARTMENT OF DEFENSE. SINCE WE HAVE PREVIOUSLY HELD THAT A STATE NATIONAL GUARD UNIT IS A STATE ORGANIZATION AND CANNOT, THEREFORE, BE CONSIDERED TO BE AN AGENCY OF THE DEPARTMENT OF DEFENSE, IT IS OUR VIEW THAT 10 U.S.C. 2205 DOES NOT PROVIDE AUTHORITY FOR THE TRANSACTIONS IN QUESTION. IN OTHER WORDS,IT IS OUR VIEW THAT THIS SECTION PROVIDES FOR THE DISPOSITION OF FUNDS RECEIVED IN REIMBURSEMENT FOR SERVICES RENDERED PURSUANT TO LAW BUT DOES NOT OF ITSELF CONSTITUTE AUTHORITY FOR THE EXECUTION OF AGREEMENTS COVERING THE FURNISHING OF SERVICES OR REIMBURSEMENT THEREFOR.

THE ASSISTANT SECRETARY ALSO POINTS OUT THAT THE LEGISLATIVE HISTORIES OF RECENT ANNUAL APPROPRIATION ACTS FOR THE DEPARTMENT OF DEFENSE INDICATE THAT THE CONGRESS HAS BEEN FULLY INFORMED AND HAS APPROVED OF THE TYPE OF AGREEMENT IN QUESTION. AN EXAMINATION OF THE HEARINGS REFERRED TO BY THE ASSISTANT SECRETARY, HELD IN CONNECTION WITH THE DEPARTMENT OF DEFENSE APPROPRIATIONS FOR THE YEARS 1963 AND 1964, DISCLOSES THAT BOTH THE SENATE AND HOUSE COMMITTEES ON APPROPRIATIONS WERE FULLY INFORMED CONCERNING THESE AGREEMENTS AND THAT NO QUESTION WAS RAISED CONCERNING THE AUTHORITY UNDER WHICH SUCH AGREEMENTS WERE EXECUTED. ALSO, IT IS POINTED OUT THAT LEGISLATION IS NOW PENDING (H.R. 2504, 88TH CONGRESS) WHICH, AMONG OTHER THINGS, WOULD REPEAL 32 U.S.C. 709 AND SUBSTITUTE A NEW SECTION 401 AUTHORIZING THE EMPLOYMENT OF NATIONAL GUARD TECHNICIANS IN ACCORDANCE WITH REGULATIONS OF THE SECRETARY OF THE ARMY, REQUIRED FOR THE MAINTENANCE OF SUPPLIES ISSUED TO THE ARMED FORCES.

FURTHERMORE, IT IS STATED THAT---

"TO DISCONTINUE THIS PROGRAM WILL RESULT IN THE DISCHARGE OF SOME 280 EXPERIENCED AND HIGHLY SKILLED ARMY NATIONAL GUARD TECHNICIANS FROM THEIR CIVILIAN EMPLOYMENT. FURTHER, IT WILL BE DIFFICULT TO RETAIN THESE TECHNICIANS AS MEMBERS OF THE NATIONAL GUARD UNLESS THEIR CIVILIAN STATUS AS TECHNICIANS IS RETAINED. THEIR LOSS TO THE PROGRAM WILL ADVERSELY AFFECT THE ABILITY OF THE GUARD TO RESPOND TO ITS MATERIEL READINESS REQUIREMENTS. IT IS EXTREMELY DOUBTFUL THAT THEY WILL BE AVAILABLE FOR REEMPLOYMENT AT SUCH TIME AS ADDITIONAL LEGAL AUTHORITY FOR THEIR EMPLOYMENT IS ENACTED.'

WHILE WE REMAIN OF THE VIEW THAT THERE EXISTS NO STATUTORY AUTHORITY FOR THE TRANSACTIONS HERE INVOLVED, THERE APPEARS NO QUESTION BUT THAT THE AGREEMENTS ARE IN THE INTERESTS OF THE GOVERNMENT AND CONSIDERING THAT SOME OF THESE AGREEMENTS HAVE BEEN IN EXISTENCE FOR A NUMBER OF YEARS AND THAT THE ARRANGEMENTS HAVE BEEN DISCLOSED TO THE SENATE AND HOUSE COMMITTEES ON APPROPRIATIONS, WE WILL RAISE NO FURTHER OBJECTION TO SUCH AGREEMENTS AT THIS TIME. HOWEVER, IF IT IS CONTEMPLATED THAT SUCH ARRANGEMENTS WILL BE CONTINUED INDEFINITELY, WE BELIEVE THAT SPECIFIC AUTHORITY THEREFOR SHOULD BE OBTAINED FROM THE CONGRESS.

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