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B-150004, MAY 27, 1963, 42 COMP. GEN. 650

B-150004 May 27, 1963
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IS UNAUTHORIZED ABSENT CONGRESSIONAL APPROVAL. THE ARRANGEMENT INVOLVING A GRANT TO THE ORGANIZATION OF A CONCESSION OR PRIVILEGE TO USE GOVERNMENT-OWNED PROPERTY IS SUBJECT TO THE STATUTORY PROVISIONS GOVERNING PUBLIC CONTRACTS AND TO SECTION 321 OF THE ACT OF JUNE 30. REQUIRING PAYMENT OF A MONETARY CONSIDERATION FOR THE VALUABLE PRIVILEGE THAT IS FOR DEPOSIT IN THE TREASURY AND WHICH WOULD NOT BE AVAILABLE UNLESS APPROPRIATED BY THE CONGRESS. 1963: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 28. IS THAT THE FRIENDS OF THE NATIONAL ZOO. WHICH WE UNDERSTAND IS A PRIVATE NONPROFIT CHARITABLE OR EDUCATIONAL ORGANIZATION. BE PERMITTED TO INSTALL IN THE ZOO AN AUDIO-TOUR SYSTEM CONSISTING OF COIN-OPERATED SOUND DEVICES WHICH WILL DELIVER RECORDED LECTURES OR INFORMATORY TALKS CONCERNING THE ADJACENT EXHIBITS.

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B-150004, MAY 27, 1963, 42 COMP. GEN. 650

PROPERTY - PUBLIC - PRIVATE USE - AUTHORITY THE INSTALLATION IN THE NATIONAL ZOO BY A NONPROFIT ORGANIZATION OF A COIN-OPERATED AUDIO-TOUR SYSTEM, THE INCOME TO BE USED FOR A TEACH TRAINING PROGRAM AND A GUIDEBOOK, IS UNAUTHORIZED ABSENT CONGRESSIONAL APPROVAL, THE ARRANGEMENT INVOLVING A GRANT TO THE ORGANIZATION OF A CONCESSION OR PRIVILEGE TO USE GOVERNMENT-OWNED PROPERTY IS SUBJECT TO THE STATUTORY PROVISIONS GOVERNING PUBLIC CONTRACTS AND TO SECTION 321 OF THE ACT OF JUNE 30, 1932, 40 U.S.C. 303 (B), REQUIRING PAYMENT OF A MONETARY CONSIDERATION FOR THE VALUABLE PRIVILEGE THAT IS FOR DEPOSIT IN THE TREASURY AND WHICH WOULD NOT BE AVAILABLE UNLESS APPROPRIATED BY THE CONGRESS, AND THE TEACH-TRAINING PROGRAM AND GUIDEBOOK, IF NOT DEEMED CONSIDERATION FOR A CONCESSION, WOULD AMOUNT TO VOLUNTARY SERVICES WHICH UNDER SECTION 3679, REVISED STATUTES, 31 U.S.C. 665 (B), COULD NOT LAWFULLY BE ACCEPTED; THEREFORE, AUTHORIZATION TO ENTER INTO AN AGREEMENT FOR THE INSTALLATION IN THE ZOO OF AN AUDIO-TOUR SYSTEM SHOULD BE REQUESTED OF THE CONGRESS.

TO THE SECRETARY, SMITHSONIAN INSTITUTION, MAY 27, 1963:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 28, 1962, SUBMITTING FOR OUR CONSIDERATION A PROPOSAL RECEIVED FROM THE FRIENDS OF THE NATIONAL ZOO AND REQUESTING ADVICE AS TO THE LEGAL PROPRIETY OF ENTERING INTO AN AGREEMENT ON THE BASIS OF SUCH PROPOSAL.

THE PROPOSAL, IN SUBSTANCE, IS THAT THE FRIENDS OF THE NATIONAL ZOO, WHICH WE UNDERSTAND IS A PRIVATE NONPROFIT CHARITABLE OR EDUCATIONAL ORGANIZATION, BE PERMITTED TO INSTALL IN THE ZOO AN AUDIO-TOUR SYSTEM CONSISTING OF COIN-OPERATED SOUND DEVICES WHICH WILL DELIVER RECORDED LECTURES OR INFORMATORY TALKS CONCERNING THE ADJACENT EXHIBITS. THE PROCEEDS DERIVED FROM THESE DEVICES WOULD THEN BE USED BY THE ORGANIZATION TO FINANCE TWO PROGRAMS: ONE, THE DEVELOPMENT AND CONDUCT OF A TEACH- TRAINING PROGRAM FOR TEACHERS OF THE SCHOOL SYSTEMS OF THE WASHINGTON METROPOLITAN AREA, WHICH WOULD ENABLE THEM TO CONDUCT GROUPS OF PUPILS ON ZOO TOURS WITH GREATLY ENHANCED ABILITY TO MAKE SUCH TOURS GENUINELY EDUCATIONAL AND CULTURALLY BENEFICIAL; AND TWO, THE PREPARATION AND PUBLICATION OF A FIRST-CLASS GUIDEBOOK FOR THE ZOO, TO BE AVAILABLE FOR SALE TO THE PUBLIC AT THE LOWEST POSSIBLE PRICE.

IT IS UNDERSTOOD THAT THE PROPOSED PROGRAMS, DETAILS OF WHICH WOULD BE SUBJECT IN ALL RESPECTS TO APPROVAL BY THE OFFICIALS OF THE ZOO, ARE CONSIDERED BY THEM AND BY YOU TO BE ADVANTAGEOUS AND DESIRABLE IN THE PROMOTION AND FURTHERANCE OF THE PURPOSES AND OBJECTIVES OF THE ZOO; ALSO, THAT ADOPTION OF THE PROPOSAL WOULD BE ON SUCH TERMS AS WOULD PRECLUDE ACCRUAL OF ANY PRIVATE PROFIT.

IN INFORMAL DISCUSSIONS OF THE MATTER BETWEEN REPRESENTATIVES OF OUR AGENCIES, ATTENTION WAS DIRECTED PRINCIPALLY TO THE QUESTION WHETHER FORMAL IMPLEMENTATION OF THE PROPOSAL BY A CONTRACTUAL AGREEMENT COULD PROPERLY BE NEGOTIATED WITHOUT FORMAL ADVERTISING, REFERENCE BEING HAD TO THE OFTEN-STATED POSITION OF THIS OFFICE THAT THE GRANT OF ANY CONCESSION OR PRIVILEGE INVOLVING THE USE OF GOVERNMENT PROPERTY SHOULD BE SUBJECT TO THE SAME STATUTORY ADVERTISING REQUIREMENTS AS THE AWARD OF ANY OTHER PUBLIC CONTRACT. SEE DECISION B-145772 OF SEPTEMBER 1, 1961, 41 COMP. GEN. 177, TO YOU, AND CASES THEREIN CITED.

HOWEVER, AFTER FULLER CONSIDERATION, WE BELIEVE THAT THE PROPOSAL RAISES A MORE FUNDAMENTAL QUESTION AS TO THE LEGAL AUTHORITY OF THE SMITHSONIAN TO ENTER INTO SUCH AN AGREEMENT, WHETHER ADVERTISED OR NEGOTIATED.

IT IS OUR UNDERSTANDING THAT THE NATIONAL ZOOLOGICAL PART IS THE PROPERTY OF THE UNITED STATES AND NOT A PART OF THE LANDS APPROPRIATED TO THE SMITHSONIAN INSTITUTION BY SECTION 4 OF THE ACT OF AUGUST 10, 1846, 9 STAT. 104 (20 U.S.C. 52). THE AUTHORITY OF THE SMITHSONIAN OVER THE PARK IS DERIVED FROM THE ACT OF APRIL 30, 1890, 26 STAT. 78 (20 U.S.C. 81), WHICH PLACED IT "UNDER THE DIRECTION OF THE REGENTS OF THE SMITHSONIAN INSTITUTION, WHO ARE AUTHORIZED TO TRANSFER TO IT ANY LIVING SPECIMENS, WHETHER OF ANIMALS OR PLANTS, IN THEIR CHARGE, TO ACCEPT GIFTS FOR THE PARK AT THEIR DISCRETION, IN THE NAME OF THE UNITED STATES, TO MAKE EXCHANGES OF SPECIMENS, AND TO ADMINISTER THE SAID ZOOLOGICAL PARK FOR THE ADVANCEMENT OF SCIENCE AND THE INSTRUCTION AND RECREATION OF THE PEOPLE.'

IN THE ABSENCE OF ANY OTHER PROVISIONS IN THE ACT REFERRED TO, IT IS OUR VIEW THAT THE REGENTS, IN THE EXERCISE OF THE AUTHORITY THEREBY CONFERRED UPON THEM WITH RESPECT TO THE ZOO, ARE SUBJECT TO ALL LIMITATIONS AND RESTRICTIONS APPLICABLE GENERALLY TO ADMINISTRATIVE OFFICIALS OF THE GOVERNMENT.

FUNDAMENTAL IN THE OPERATION OF THE GOVERNMENTAL ACTIVITY IS THE MANDATE OF ARTICLE I, SECTION 9, PARAGRAPH 7, OF THE CONSTITUTION, THAT "NO MONEY SHALL BE DRAWN FROM THE TREASURY, BUT IN CONSEQUENCE OF APPROPRIATIONS MADE BY LAW * * * .' IN JUSTICE STORY'S COMMENTARIES ON THE CONSTITUTION (5TH ED., VOL. 1, P. 222) IT IS SAID WITH REFERENCE TO THIS PROVISION: "AS ALL THE TAXES RAISED FROM THE PEOPLE, AS WELL AS THE REVENUES FROM OTHER SOURCES, ARE TO BE APPLIED TO THE DISCHARGE OF THE EXPENSES, AND DEBTS, AND OTHER ENGAGEMENTS OF THE GOVERNMENT, IT IS HIGHLY PROPER THAT CONGRESS SHOULD POSSESS THE POWER TO DECIDE HOW AND WHEN ANY MONEY SHOULD BE APPLIED FOR THESE PURPOSES.'

THE CONGRESS HAS JEALOUSLY GUARDED ITS PREROGATIVES UNDER THIS CLAUSE, AND HAS FROM TIME TO TIME BY GENERAL STATUES SOUGHT TO GUARD AGAINST ANY POSSIBILITY OF ENCROACHMENT BY THE EXECUTIVE DEPARTMENT. TO INSURE THAT THE EXECUTIVE SHALL REMAIN WHOLLY DEPENDENT UPON APPROPRIATIONS IT IS REQUIRED (WITH LIMITED AND VERY SPECIFIC EXCEPTIONS) THAT THE GROSS AMOUNT OF ALL MONEYS RECEIVED FROM WHATEVER SOURCE FOR THE UNITED STATES BE DEPOSITED INTO THE TREASURY (R.S. 3617; 31 U.S.C. 484); AND THAT NO OFFICER OR EMPLOYEE OF THE UNITED STATES SHALL INVOLVE THE GOVERNMENT IN ANY CONTRACT OR OTHER OBLIGATION FOR THE PAYMENT OF MONEY FOR ANY PURPOSE IN ADVANCE OF APPROPRIATIONS THEREFOR, UNLESS SUCH CONTRACT OR OBLIGATION IS AUTHORIZED BY LAW. (R.S. 3679, 31 U.S.C. 665 (A); SEE, ALSO, R.S. 3732, 41 U.S.C. 11). AS ADDITIONAL SAFEGUARDS AGAINST UNAUTHORIZED EXECUTIVE ACTIVITIES, THE ACCEPTANCE OF VOLUNTARY SERVICE FOR THE UNITED STATES IS PROHIBITED (R.S. 3679, 31 U.S.C. 665 (B) ); AND SPECIFICALLY WITH RESPECT TO THE USE OF GOVERNMENT PROPERTY BY OUTSIDE PARTIES IT IS PROVIDED THAT LEASES OF BUILDINGS AND PROPERTIES OF THE UNITED STATES SHALL BE FOR MONEY ONLY, ANY PROVISION FOR ALTERATION, REPAIR, OR IMPROVEMENT THEREOF AS A PART OF THE CONSIDERATION FOR THE USE BEING PROHIBITED (SEC. 321, ACT OF JUNE 30, 1932, 47 STAT. 412; 40 U.S.C. 303 (B) ).

WE HAVE FOR MANY YEARS CONSISTENTLY HELD THAT ANY GRANT OF A RIGHT TO USE GOVERNMENT-OWNED PROPERTY OR FACILITIES IN A MANNER NOT PERMITTED TO THE PUBLIC AT LARGE CREATES A VALUABLE PRIVILEGE FOR WHICH THE GOVERNMENT SHOULD BE COMPENSATED, AND SHOULD BE SUBJECT TO STATUTORY PROVISIONS GOVERNING PUBLIC CONTRACTS. 7 COMP. GEN. 806; 19 ID. 887. WE HAVE ALSO HELD THAT THE PROVISIONS OF SECTION 321 OF THE ACT OF JUNE 30, 1932, CITED ABOVE, ARE APPLICABLE TO ALL SUCH GRANTS, WHETHER OR NOT THEY MEET THE STRICT LEGAL DEFINITION OF LEASES. SEE 41 COMP. GEN. 493; 35 ID. 113.

IN THE LIGHT OF THE ABOVE PRINCIPLES AND STATUTORY REQUIREMENTS, WE FEEL THAT THE PROPOSED ARRANGEMENT WITH THE FRIENDS OF THE NATIONAL ZOO WOULD BE UNAUTHORIZED, HOWEVER BENEFICIAL AND DESIRABLE IT MIGHT BE. IT WOULD INVOLVE A GRANT TO THE ORGANIZATION OF A CONCESSION OR PRIVILEGE WHICH, UNDER OUR INTERPRETATION OF THE CITED PROVISION OF THE 1932 ACT, WOULD BE PERMISSIBLE ONLY FOR A SOLELY MONETARY CONSIDERATION; IF, ON THE OTHER HAND, A MONETARY CONSIDERATION WERE PROVIDED, THE MONEY WOULD BE REQUIRED TO BE DEPOSITED IN THE TREASURY AND WOULD NOT BE AVAILABLE FOR THE PROPOSED USES UNLESS APPROPRIATED THEREFOR BY THE CONGRESS. VIEWED FROM THE OTHER END, THE FURNISHING OF THE CONTEMPLATED TEACH-TRAINING PROGRAM AND GUIDEBOOK, IF NOT DEEMED TO BE CONSIDERATION FOR A CONCESSION, WOULD AMOUNT TO VOLUNTARY SERVICES WHICH COULD NOT LAWFULLY BE ACCEPTED.

FOR THE REASONS STATED, WE BELIEVE THAT AUTHORIZATION FOR ENTERING INTO ANY SUCH ARRANGEMENT AS PROPOSED SHOULD BE REQUESTED FOR THE CONGRESS.

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