B-154282, OCT. 15, 1965, 45 COMP. GEN. 184

B-154282, OCT. 15, 1965, 45 COMP. GEN. 184

VEHICLES - PURCHASES - LIMITATION - VEHICLES ACQUIRED FROM EXCESS PROPERTY LISTS THE TRANSFERS OF PASSENGER-CARRYING MOTOR VEHICLES BETWEEN GOVERNMENT AGENCIES WITH OR WITHOUT REIMBURSEMENT AS AUTHORIZED UNDER SECTION 202 (A) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED (40 U.S.C. 483 (A) (, THAT ARE WITHIN THE PURCHASE LIMITATIONS PRESCRIBED BY 5 U.S.C. 78 DO NOT INCLUDE TRANSFERS WITHOUT REIMBURSEMENT OF EXCESS VEHICLES FOR REPLACEMENT OR UPGRADING WHERE AN EQUAL NUMBER OF VEHICLES ARE REPORTED AS EXCESS AND NO AUGMENTATION RESULTS IN THE NUMBER OF VEHICLES AUTHORIZED, OR TRANSFERS FROM EXCESS PROPERTY LISTS FOR UP TO 3 MONTHS WITHOUT REIMBURSEMENT FOR EMERGENCY PURPOSES WHEN AN AGENCY IS UNABLE TO SECURE VEHICLES FROM THE MOTOR POOL SYSTEM AND HAS AUTHORITY TO HIRE VEHICLES, THE TEMPORARY ACQUISITION IN THE NATURE OF A LOAN ELIMINATING HIRING VEHICLES DURING EMERGENCIES WITHOUT VIOLATING THE PURCHASE LIMITATION, PROVIDED APPROPRIATE CONTROLS ARE EXERCISED TO PRECLUDE THE UTILIZATION OF LOAN PROCEDURES TO CIRCUMVENT THE LIMITATIONS CONTAINED IN 5 U.S.C. 78. 44 COMP. GEN. 117 CLARIFIED.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, OCTOBER 15, 1965:

BY LETTER OF OCTOBER 4, 1964, YOUR GENERAL COUNSEL REQUESTED THAT WE RECONSIDER OUR DECISION OF SEPTEMBER 1, 1964, B-154282, PUBLISHED AT 44 COMP. GEN. 117.

THE CITED DECISION CONCLUDED THAT TRANSFERS OF PASSENGER-CARRYING MOTOR VEHICLES BETWEEN GOVERNMENT AGENCIES WITH OR WITHOUT REIMBURSEMENT AS AUTHORIZED UNDER SECTION 202 (A) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 40 U.S.C. 483 (A), ARE EMBRACED WITHIN THE LIMITATIONS SET FORTH IN SECTION 5 OF THE ACT OF JULY 16, 1914, AS AMENDED BY SECTION 16 (A) OF THE ACT OF AUGUST 2, 1946, 5 U.S.C. 78.

AS POINTED OUT BY THE GENERAL COUNSEL, SECTION 5 OF THE 1914 ACT AS ORIGINALLY ENACTED PROVIDED THAT NO APPROPRIATION SHOULD BE AVAILABLE FOR THE PURCHASE OF ANY PASSENGER-CARRYING VEHICLE UNLESS SPECIFIC AUTHORITY IS GIVEN THEREFOR; AND IT PROHIBITED THE EXPENDITURE OF ANY APPROPRIATED FUNDS FOR THE PURCHASE, MAINTENANCE, REPAIR, OR OPERATION OF PASSENGER- CARRYING VEHICLES UNLESS SPECIFICALLY AUTHORIZED BY LAW. IN 1946 THIS SECTION WAS AMENDED GENERALLY AND DIVIDED INTO FIVE SUBSECTIONS OF WHICH ONLY SUBSECTIONS (A) AND (E) ARE PERTINENT HERE. SUBSECTION (A) PROVIDES, WITH CERTAIN EXCEPTIONS NOT RELEVANT IN THIS CASE, THAT NO APPROPRIATION SHALL BE EXPENDED TO PURCHASE OR HIRE PASSENGER MOTOR VEHICLES UNLESS SPECIFICALLY AUTHORIZED BY LAW. SUBJECTION (E) PROVIDES THAT: "THE ACQUISITION OF AIRCRAFT OR PASSENGER MOTOR VEHICLES BY ANY AGENCY BY TRANSFER FROM ANOTHER DEPARTMENT OF THE GOVERNMENT SHALL BE CONSIDERED AS A PURCHASE WITHIN THE MEANING HEREOF.' THE ORIGINAL PROSCRIPTION AGAINST EXPENSES FOR MAINTENANCE, REPAIR, AND OPERATION WAS ELIMINATED; BUT THE LEGISLATIVE HISTORY SHOWS CLEARLY THAT THIS WAS DONE BECAUSE IT WAS DEEMED UNNECESSARY TO LIMIT SUCH EXPENSES SO LONG AS THE ORIGINAL ACQUISITION OF VEHICLES IS UNDER CONGRESSIONAL CONTROL. SEE H.REPT. NO. 2186 AND S.REPT. NO. 1636, 79TH CONG. 2D SESS.

IT WAS UPON THE BASIS OF SUBSECTION (E), QUOTED IMMEDIATELY ABOVE, AND RELATED LEGISLATIVE HISTORY, THAT WE REACHED OUR CONCLUSION IN THE DECISION WE HAVE BEEN ASKED TO RECONSIDER. THE REQUEST FOR RECONSIDERATION OF THAT CONCLUSION INVOLVES ONLY ITS APPLICATION TO TRANSFERS WITHOUT REIMBURSEMENT OF EXCESS VEHICLES FOR REPLACEMENT OR UPGRADING PURPOSES WHERE THE AGENCY OBTAINING SUCH VEHICLES PROMPTLY REPORTS AS EXCESS AN EQUAL NUMBER OF VEHICLES. THE REASONS UNDERLYING THE GENERAL COUNSEL'S REQUEST ARE SET FORTH IN THE FOLLOWING EXCERPT FROM HIS LETTER:

KEEPING IN MIND THAT, AT THE TIME OF THE 1946 ACT, TRANSFERS OF EXCESS PROPERTY FROM ONE AGENCY TO ANOTHER WERE MADE AS A GENERAL RULE WITH REIMBURSEMENT (40 U.S.C., 1946 ED., 311 AND 311A, NOW REPEALED), WE THINK IT IS REASONABLE TO CONCLUDE THAT SUBSECTIONS (A) AND (E) WERE INTENDED (1) TO PROHIBIT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORIZATION, THE USE OF APPROPRIATED FUNDS FOR THE ACQUISITION OF MOTOR VEHICLES, INCLUDING THE USE OF SUCH FUNDS TO ACQUIRE EXCESS VEHICLES, AND (2) TO PRECLUDE AGENCIES FROM INCREASING THE TOTAL NUMBER OF THEIR VEHICLES UNLESS THE INCREASE HAD FIRST BEEN AUTHORIZED BY AN APPROPRIATION ACT OR OTHER LAW.

IN OUR OPINION THERE IS NOTHING IN THE LEGISLATIVE HISTORY OR IN SUBJECTIONS (A) AND (E) WHICH REQUIRES THE CONCLUSION THAT AUTHORIZATION BY AN APPROPRIATION ACT OR OTHER LAW IS NECESSARY TO PERMIT THE TRANSFER OF AN EXCESS VEHICLE, WITHOUT REIMBURSEMENT, AS LONG AS THE AGENCY RECEIVING THE EXCESS VEHICLE GIVES UP A VEHICLE AT THE SAME TIME. THE ELIMINATION, THROUGH THE 1946 AMENDMENT, OF THE REQUIREMENT FOR SPECIFIC AUTHORIZATION FOR THE MAINTENANCE, REPAIR, OR OPERATION OF VEHICLES SUPPORTS THE VIEW THAT THE PRINCIPAL INTENT OF THE CONGRESS WAS TO MAINTAIN CONTROL OVER THE USE OF APPROPRIATED FUNDS AND THE NUMBER OF VEHICLES HELD BY EACH AGENCY.

IT IS TRUE, OF COURSE, THAT THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 CONTAINS NO SPECIFIC AUTHORIZATION TO ACQUIRE PASSENGER MOTOR VEHICLES WITHOUT REGARD TO THE PROVISIONS OF 5 U.S.C. 78. SECTION 602 (C) OF THE ACT, 40 U.S.C. 474 (C), DOES PROVIDE, HOWEVER, THAT "THE AUTHORITY CONFERRED BY THIS ACT SHALL BE IN ADDITION AND PARAMOUNT TO ANY AUTHORITY CONFERRED BY ANY OTHER LAW AND SHALL NOT BE SUBJECT TO THE PROVISIONS OF ANY LAW INCONSISTENT HEREWITH * * *.'

ONE OF THE PURPOSES OF THE PROPERTY ACT IS TO PROMOTE THE MAXIMUM UTILIZATION OF EXCESS PROPERTY AND WE BELIEVE THAT THE INTERPRETATION OF 5 U.S.C. (A) AND (E) SHOULD BE MADE WITH THIS IN MIND. IT SEEMS OBVIOUS THAT IT IS DESIRABLE FOR AN AGENCY TO REPLACE VEHICLES WHICH ARE IN POOR CONDITION, OR WHICH HAVE BEEN DAMAGED OR WRECKED, WITH EXCESS VEHICLES WHEN SUCH EXCESS VEHICLES ARE AVAILABLE, PROVIDED THE TRANSFER IS ACCOMPLISHED WITHOUT REIMBURSEMENT AND ON CONDITIONS WHICH WILL PRECLUDE AN INCREASE IN THE TOTAL NUMBER OF VEHICLES HELD BY THE AGENCY.

THE NEED FOR SUCH REPLACEMENTS, PARTICULARLY IN THE CASE OF DAMAGED OR WRECKED VEHICLES, AND THE POSSIBLE AVAILABILITY OF ACCEPTABLE EXCESS VEHICLES CANNOT REASONABLY BE FORECAST SO AS TO BE INCLUDED IN REQUESTS FOR APPROPRIATION AUTHORIZATIONS.

WE AGREE WITH THE GENERAL COUNSEL'S RATIONALE AND WOULD POINT OUT THAT NOTWITHSTANDING ANY CONTRARY IMPLICATION APPEARING THEREIN, OUR DECISION OF SEPTEMBER 1, 1964, WAS NOT INTENDED TO CONFLICT WITH THE GENERAL COUNSEL'S VIEWS. OUR DECISION WAS DIRECTED TOWARD A SITUATION WHERE THE NUMBER OF VEHICLES AUTHORIZED FOR THE AGENCY INVOLVED WAS AUGMENTED THROUGH ACQUISITIONS FROM EXCESS PROPERTY LISTS.

A SECOND POINT RAISED BY THE GENERAL COUNSEL IS WHETHER THE DECISION WAS INTENDED TO PRECLUDE THE TEMPORARY TRANSFER, FOR UP TO THREE MONTHS, WITHOUT REIMBURSEMENT, OF EXCESS VEHICLES NEEDED IN EMERGENCIES WHERE VEHICLES REQUIRED CANNOT BE SUPPLIED BY THE GENERAL SERVICES ADMINISTRATION MOTOR POOL SYSTEM. HIS VIEWS ON THIS POINT ARE STATED AS FOLLOWS:

IN THE LIGHT OF THE FOREGOING DISCUSSION WE DO NOT BELIEVE THAT THIS TYPE OF TRANSACTION, WHICH IS REALLY MORE IN THE NATURE OF A LOAN, WAS INTENDED TO BE PRECLUDED BY 5 U.S.C. 78. TO HOLD OTHERWISE WOULD PRESUMABLY REQUIRE AGENCIES, IN EMERGENCY SITUATIONS, TO HIRE MOTOR VEHICLES FROM PRIVATE SOURCES, A RESULT WHICH WOULD BE MOST OBJECTIONABLE IF EXCESS VEHICLES ARE AVAILABLE.

THERE IS NO INDICATION THAT THE SUBJECT OF TEMPORARY USE, IN EMERGENCIES, WAS CONSIDERED BY THE CONGRESS IN CONNECTION WITH THE 1946 ACT AND, ACCORDINGLY, WE DO NOT THINK THAT IT WAS THE INTENTION TO REQUIRE PRIOR APPROPRIATION ACT AUTHORITY FOR SUCH USE.

IT IS NOT ENTIRELY ACCURATE TO SAY THAT CONGRESS DID NOT CONSIDER THE SUBJECT OF TEMPORARY EMERGENCY USE OF VEHICLES IN CONNECTION WITH THE 1946 ACT, IF WE ACCEPT THE PROPOSITION THAT THE FUNDAMENTAL PURPOSE OF THAT ACT WAS TO MAINTAIN CONTROL OVER THE NUMBER OF VEHICLES HELD BY EACH AGENCY, AND WE KEEP IN MIND THAT THE RESTRICTIONS IMPOSED ARE WITH RESPECT TO THE HIRE OF AS WELL AS THE PURCHASE OF PASSENGER MOTOR VEHICLES. WITH THIS FUNDAMENTAL PURPOSE IN MIND, IT IS CLEAR THAT EVEN THE TEMPORARY LOAN OF EXCESS VEHICLES WOULD DILUTE THE EXTENT OF CONGRESSIONAL CONTROL WHICH THE ACT WAS DESIGNED TO PROVIDE, IF, IN FACT, SUCH LOANS CAUSED AN AGENCY'S TOTAL VEHICLE INVENTORY TO EXCEED ITS AUTHORIZATIONS FOR PURCHASE AND HIRE. HOWEVER, WHERE AN AGENCY IS AUTHORIZED TO HIRE VEHICLES, WE AGREE THAT THE TEMPORARY LOAN OF EXCESS VEHICLES UNDER EMERGENCY CONDITIONS DOES NOT OF ITSELF DO VIOLENCE TO THE UNDERLYING PURPOSE OF THE ACT PROVIDED THAT APPROPRIATE CONTROLS ARE EXERCISED TO PRECLUDE UTILIZATION OF LOAN PROCEDURES TO CIRCUMVENT THE ESSENTIAL PURPOSES OF THE STATUTE.