B-159633, NOVEMBER 2, 1966, 46 COMP. GEN. 379

B-159633, NOVEMBER 2, 1966, 46 COMP. GEN. 379

DONATIONS - PRIVATE FUNDS - USAGE - CONFERENCES, ENTERTAINMENT, ETC. THE NATIONAL SCIENCE FOUNDATION LACKING EXPRESSED AUTHORITY FOR THE RENTAL OF HOTEL ACCOMMODATIONS IN WASHINGTON, D.C; FOR A CONFERENCE, PAYMENT BY THE FOUNDATION FOR THE USE OF SUCH SPACE FROM APPROPRIATED FUNDS IS PROHIBITED BY 40 U.S.C. 34, AND THE GENERAL SERVICES ADMINISTRATION NOT HAVING ARRANGED FOR THE SPACE MAY NOT PAY THE RENTAL COST. HOWEVER, PURSUANT TO SECTION 11 (F) OF THE NATIONAL SCIENCE FOUNDATION ACT OF 1950, AS AMENDED, 42 U.S.C. 1870 (F), PAYMENT FOR THE RENTAL SPACE, INCLUDING LUNCHEONS, TELEPHONE CALLS, AND COFFEE, ITEMS NOT PAYABLE FROM APPROPRIATED FUNDS, MAY BE MADE FROM THE FOUNDATION'S DONATION ACCOUNT 49X8960, UPON ADMINISTRATIVE DETERMINATION THE EXPENSES WERE NECESSARY. DISTRICT OF COLUMBIA - LEASES, CONCESSIONS, RENTAL AGREEMENTS, ETC. PRIOR APPROPRIATION NECESSITY THE GENERAL STATUTORY AUTHORITY IN SECTION 11 (E) OF THE NATIONAL SCIENCE FOUNDATION ACT OF 1950, AS AMENDED, 42 U.S.C. 1870 (E), CONFLICTING WITH 40 U.S.C. 34 PROHIBITING THE RENTAL OF SPACE IN THE DISTRICT OF COLUMBIA FOR THE USE OF THE GOVERNMENT, ABSENT A PRIOR APPROPRIATION FOR THE PURPOSE, THE HOTEL ACCOMMODATIONS RENTED IN THE DISTRICT BY THE NATIONAL SCIENCE FOUNDATION MAY NOT BE PAID FROM APPROPRIATED FUNDS, AND THE PROHIBITION IN 40 U.S.C. 34 NOT OVERCOME BY A STATEMENT IN THE BUDGET JUSTIFICATION WHERE THE APPROPRIATION ACT DID NOT AUTHORIZE THE RENTAL EXPENDITURE, THE SPECIFIC STATUTORY PROHIBITION PREVAILS OVER THE GENERAL ADMINISTRATIVE AUTHORITY CONFERRED BY SECTION 11 (E) OF THE 1950 ACT ON THE FOUNDATION.

TO C. A. BAILEY, NATIONAL SCIENCE FOUNDATION, NOVEMBER 2, 1966:

YOUR LETTER OF OCTOBER 5, 1966, REQUESTS OUR DECISION CONCERNING THE PROPRIETY OF CERTIFYING FOR PAYMENT A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF THE STATLER HILTON HOTEL OF WASHINGTON, D.C. THE VOUCHER IN THE TOTAL AMOUNT OF $595.69 COVERS SLEEPING ROOMS, LUNCHEONS, COFFEE (SERVED IN PANEL ROOMS), AND PANEL ROOMS; SPECIFICALLY SET FORTH ON THE VOUCHER ARE ROOM CHARGES OF $289.12. ALSO YOU ENCLOSE A PURCHASE ORDER TO THE STATLER HILTON HOTEL IN THE AMOUNT OF $595.69 COVERING APPROXIMATELY 12 SLEEPING ROOMS, LUNCHEONS, COFFEE AND 4 PANEL ROOMS.

YOUR DOUBT IN THE MATTER ARISES BECAUSE OF THE PROHIBITION CONTAINED IN THE ACT OF MARCH 3, 1877, 19 STAT. 370, 40 U.S.C. 34, WHICH READS AS FOLLOWS:

NO CONTRACT SHALL BE MADE FOR THE RENT OF ANY BUILDING, OR PART OF ANY BUILDING, TO BE USED FOR THE PURPOSES OF THE GOVERNMENT IN THE DISTRICT OF COLUMBIA, UNTIL AN APPROPRIATION THEREFOR SHALL HAVE BEEN MADE IN TERMS BY CONGRESS, AND THIS CLAUSE SHALL BE REGARDED AS NOTICE TO ALL CONTRACTORS OR LESSORS OF ANY SUCH BUILDING OR ANY PART OF BUILDING.

YOU POINT OUT THAT SECTION 11 (E) OF THE NATIONAL SCIENCE FOUNDATION ACT OF 1950, AS AMENDED (NSF ACT), 42 U.S.C. 1870 (E), PROVIDES THAT:

THE FOUNDATION SHALL HAVE THE AUTHORITY, WITHIN THE LIMITS OF AVAILABLE APPROPRIATIONS, TO DO ALL THINGS NECESSARY TO CARRY OUT THE PROVISIONS OF THIS CHAPTER, INCLUDING, BUT WITHOUT BEING LIMITED THERETO, THE AUTHORITY-

(E) TO ACQUIRE BY PURCHASE, LEASE, LOAN, GIFT, OR CONDEMNATION, AND TO HOLD AND DISPOSE OF BY GRANT, SALE, LEASE, OR LOAN, REAL AND PERSONAL PROPERTY OF ALL KINDS NECESSARY FOR, OR RESULTING FROM, THE EXERCISE OF AUTHORITY GRANTED BY THIS CHAPTER;

YOU NOTE THAT THE INDEPENDENT OFFICES APPROPRIATION ACT, 1967, PUBLIC LAW 89-555, 80 STAT. 663, 676, PROVIDES AN APPROPRIATION "FOR EXPENSES NECESSARY TO CARRY OUT THE PURPOSES OF THE NATIONAL SCIENCE FOUNDATION ACT OF 1950, AS AMENDED (42 U.S.C. 1861-1879)."

YOUR LETTER CONTINUES:

THE NATURE OF THE FOUNDATION ACTIVITIES IS SUCH AS TO REQUIRE A HIGH DEGREE OF CO-OPERATION WITH THE ACADEMIC COMMUNITY. THE DETAILS OF THE CO -OPERATION ARE EXPLAINED ON PAGE 6 OF THE FOUNDATION'S "JUSTIFICATION OF ESTIMATES OF APPROPRIATIONS, SALARIES, AND EXPENSES, FISCAL YEAR 1967;, MORE THAN FIVE HUNDRED HIGHLY QUALIFIED SCIENTISTS AND ENGINEERS SERVE AS CONSULTANTS TO THE FOUNDATION. THESE INDIVIDUALS SERVE ON VARIOUS BOARDS, COMMITTEES, AND PANELS FROM WHICH THE FOUNDATION SEEKS ADVICE AND GUIDANCE ON MATTERS OF POLICY, PROGRAM CONTENT, CRITERIA FOR JUDGING PROPOSALS AND ADMINISTRATION. WHERE SPACE IS AVAILABLE, SOME OF THESE MEETINGS ARE CONVENED IN CONFERENCE ROOMS IN THE LEASED OFFICE SPACE OF THE FOUNDATION (1800 G STREET, N.W.) OR IN OTHER GOVERNMENT OFFICES. FREQUENTLY HOWEVER, IT IS NECESSARY TO USE THE PANEL ROOMS AND CONFERENCE ROOMS OF THE HOTEL IN WHICH THE COMMITTEE MEMBERS AND PANELISTS ARE HOUSED. FOR EXAMPLE, DURING FY 67 SOME FIFTY-SIX OF THE EDUCATION EVALUATION MEETINGS AND DIRECTOR'S MEETINGS HAVE BEEN SCHEDULED IN WASHINGTON, D.C; AND VARIOUS OTHER POINTS THROUGHOUT THE COUNTRY. A COPY OF THE SCHEDULE IS ATTACHED FOR YOUR INFORMATION. THE NUMBER OF PARTICIPANTS RANGES FROM AS LOW AS SEVEN TO AS MANY AS ONE HUNDRED AND THIRTY-FIVE. THE PARTICIPANTS AT THESE MEETINGS RECEIVE NO SALARY. THEIR LODGING AND SUBSISTENCE ARE PAID FOR DIRECTLY BY THE FOUNDATION. PROVISION FOR SUCH PAYMENT APPEARS ON PAGE 370 OF THE 1967 BUDGET JUSTIFICATIONS. (COPIES OF THE PERTINENT BUDGET JUSTIFICATION SHEETS ARE ATTACHED.)

IN LIGHT OF THE FOREGOING YOU PRESENT THE FOLLOWING QUESTIONS IN CONNECTION WITH THE PROPRIETY OF CERTIFYING THE VOUCHER FOR PAYMENT:

QUESTION 1

DOES THE ABOVE QUOTED SECTION 11 (E) OF THE NSF ACT (WHEN CONSIDERED IN CONJUNCTION WITH THE WORDING OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1967, AND THE SUPPORTING BUDGET JUSTIFICATIONS COVERING APPROPRIATIONS FOR THE CONVENING OF PANELISTS AND ADVISORY BODIES) OVERCOME THE PROHIBITION CONTAINED IN THE 1877 STATUTE?

QUESTION 2

IF THE ANSWER TO THE ABOVE QUESTION SHOULD BE IN THE NEGATIVE, WOULD IT BE PERMISSIBLE FOR THE GENERAL SERVICES ADMINISTRATION TO PAY THE ATTACHED VOUCHER WITH THE NATIONAL SCIENCE FOUNDATION REIMBURSING GSA FOR THE RENTAL EXPENSES INVOLVED? UNDER THE PROVISIONS OF BOB CIRCULAR NO. A-11, SECTION 6 (J), AND THE PROVISIONS OF FEDERAL PROPERTY MANAGEMENT REGULATION 101-20.900 (AT SUBPART 902-3), IT IS CUSTOMARY FOR AGENCIES TO REIMBURSE GSA FOR INITIAL RENTAL EXPENSES UNTIL SUCH TIME AS GSA CAN PROVIDE FOR THE RENTALS IN ITS OWN APPROPRIATION REQUEST.

QUESTION 3

IF THE ANSWER TO BOTH OF THE ABOVE QUESTIONS SHOULD BE IN THE NEGATIVE, WOULD I BE PERMITTED TO PAY THE ATTACHED VOUCHER FROM THE NSF DONATIONS ACCOUNT 49X8960? I REFER YOU TO B-142538 DATED FEBRUARY 8, 1961, RENDERED TO THE DIRECTOR OF THE NATIONAL SCIENCE FOUNDATION IN WHICH YOU DEFINE THE SITUATIONS UNDER WHICH EXPENDITURES MIGHT BE MADE FROM THE NSF DONATIONS ACCOUNT.

BEFORE ANSWERING THE QUESTIONS PRESENTED YOU ARE ADVISED THAT NOTHING STATED HEREIN SHOULD BE CONSTRUED AS APPROVING THE USE OF APPROPRIATED FUNDS TO PAY FOR LUNCHEONS, TELEPHONE CALLS AND COFFEE FURNISHED THE PANELISTS. WE NOTE THAT IN THE "BUDGET JUSTIFICATIONS" REFERRED TO IN YOUR LETTER IT IS STATED THAT "THE FOUNDATION WILL PAY COMPENSATION DIRECTLY TO CONSULTANTS AND PANELISTS WHOSE EXPENSES WERE PREVIOUSLY PAID THROUGH EVALUATION CONTRACTS;,THERE IS NOTHING IN YOUR LETTER CONCERNING OTHER AMOUNTS, IF ANY, PAID DIRECTLY TO THE PANELISTS.

CONCERNING YOUR FIRST QUESTION, IT IS CLEAR THAT 40 U.S.C. 34 PROHIBITS THE RENTING OF A BUILDING, OR PART OF ANY BUILDING IN THE DISTRICT OF COLUMBIA UNTIL A SPECIFIC APPROPRIATION HAS BEEN MADE FOR SUCH PURPOSE. WHILE SECTION 11 (E) OF THE NSF ACT VESTS BROAD AUTHORITY IN THE FOUNDATION, IT CONTAINS NO EXPRESS AUTHORITY FOR RENTING BUILDING SPACE IN THE DISTRICT OF COLUMBIA, NOR DOES THE APPROPRIATION ACT REFERRED TO IN YOUR LETTER, AUTHORIZE THE EXPENDITURE OF FUNDS FOR THE RENTAL OF SPACE IN THE DISTRICT.

IT IS A SETTLED PRINCIPLE OF STATUTORY CONSTRUCTION THAT A SPECIFIC STATUTORY PROVISION COVERING A GIVEN SUBJECT MATTER WILL PREVAIL OVER GENERAL LANGUAGE OF THE SAME OR ANOTHER STATUTE WHICH MIGHT OTHERWISE PROVE CONTROLLING. IN OTHER WORDS, TO THE EXTENT OF ANY CONFLICT BETWEEN A GENERAL PROVISION AND A SPECIFIC PROVISION, THE GENERAL PROVISION MUST YIELD TO THE SPECIFIC PROVISION AND OPERATE ONLY UPON SUCH CASES AS ARE NOT WITHIN THE SCOPE OF THE SPECIFIC PROVISION. 27 COMP. GEN. 439; ID. 280; 26 ID. 561. IT IS APPARENT THAT SECTION 11 (E) OF THE NSF ACT IS, AS FAR AS PERTINENT HERE, A GENERAL PROVISION AND THAT 40 U.S.C. 34, IS A SPECIFIC PROVISION, AND THERE IS, IN EFFECT, A CONFLICT BETWEEN THE TWO, INSOFAR AS RENTING SPACE IN THE DISTRICT OF COLUMBIA IS CONCERNED. HENCE, 40 U.S.C. 34 WOULD BE CONTROLLING IN THE INSTANT CASE.

FURTHER, THERE IS NOTHING IN THE COPIES OF THE "BUDGET JUSTIFICATIONS" ENCLOSED WITH YOUR LETTER CONCERNING THE RENTAL OF SPACE IN THE DISTRICT OF COLUMBIA, AND EVEN IF SUCH A STATEMENT APPEARED IN THE BUDGET JUSTIFICATIONS, THAT, IN ITSELF, WOULD NOT BE SUFFICIENT TO OVERCOME THE PROHIBITION IN 40 U.S.C. 34.

ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

AS TO YOUR SECOND QUESTION, INASMUCH AS NSF DID NOT REQUEST THE GENERAL SERVICES ADMINISTRATION (GSA) TO FURNISH SUCH SPACE, AND GSA DID NOT ASSIGN THE SPACE INVOLVED TO NSF (SEE 40 U.S.C. 304 (C) (, NOR CONTRACT FOR SUCH SPACE ON BEHALF OF NSF, THERE WOULD APPEAR TO BE NO BASIS FOR GSA TO PAY THE VOUCHER IN QUESTION OR ANY PART THEREOF. SECTION 6 (K) OF THE BUREAU OF THE BUDGET CIRCULAR A-11 WOULD APPEAR TO PERTAIN TO INSTANCES WHERE AN AGENCY REQUESTS GSA TO RENT SPACE FOR A TERM OF YEARS, WITHOUT GSA HAVING HAD AN OPPORTUNITY TO INCLUDE IN ITS BUDGET REQUEST THE FUNDS TO PAY THE RENTAL FOR THE SPACE INVOLVED.

IN LIGHT OF THE FOREGOING YOUR SECOND QUESTION IS ANSWERED IN THE NEGATIVE.

CONCERNING YOUR THIRD QUESTION, SECTION 11 (F) OF THE NSF ACT, AS AMENDED, 42 U.S.C. 1870 (F), AUTHORIZES THE FOUNDATION---

(F) TO RECEIVE AND USE FUNDS DONATED BY OTHERS, IF SUCH FUNDS ARE DONATED WITHOUT RESTRICTION OTHER THAN THAT THEY BE USED IN FURTHERANCE OF ONE OR MORE OF THE GENERAL PURPOSES OF THE FOUNDATION.

IN OUR DECISION OF FEBRUARY 8, 1961, B-142538, WE STATED, IN EFFECT, THAT THE PRIVATE DONATIONS OR CONTRIBUTIONS RECEIVED BY NSF UNDER THE AUTHORITY OF THE ABOVE-QUOTED PROVISION OF LAW CONTITUTE TRUST FUNDS WITHIN THE PURVIEW OF SECTION 20 OF THE PERMANENT APPROPRIATION REPEAL ACT, 1934, 31 U.S.C. 725S, TO BE DISBURSED IN ACCORDANCE WITH THE TERMS OF THE TRUST. WE FURTHER STATED THAT:

WITH REFERENCE TO TRUST FUNDS, * * * IT HAS BEEN HELD THAT WHERE FEDERAL OFFICERS ARE AUTHORIZED TO ACCEPT SUCH FUNDS FOR A PARTICULAR PURPOSE, AUTHORITY MUST OF NECESSITY BE REPOSED IN THE CUSTODIANS OF THE TRUST FUND TO MAKE EXPENDITURES NECESSARY TO CARRY OUT THE PURPOSE OF TRUST WITHOUT REFERENCE TO GENERAL REGULATORY AND PROHIBITORY STATUTES APPLICABLE TO PUBLIC FUNDS. 16 COMP. GEN. 650, 655; 36 ID. 771; B-131278, SEPTEMBER 9, 1957. THEREFORE, IT FOLLOWS THAT THE AUTHORITY GIVEN TO THE FOUNDATION TO ACCEPT AND USE DONATIONS IS BROAD ENOUGH TO EMPOWER THE FOUNDATION TO SPEND THE FUNDS FOR ENTERTAINMENT WHEN IT DETERMINES THAT SUCH EXPENSES ARE NECESSARY TO CARRY OUT EFFECTIVELY ITS AUTHORIZED FUNCTIONS.

MANIFESTLY, THE QUESTION AS TO WHETHER ENTERTAINMENT IS NECESSARY TO ACCOMPLISH STATUTORY ACTIVITIES IS OFTEN DIFFICULT OF DETERMINATION. THEREFORE, WE MAY NOT UNDERTAKE TO DRAW A LINE OR SET FORTH A GENERAL STATEMENT WHICH WOULD ENCOMPASS ALL SITUATIONS WHERE THE DONATED FUNDS PROPERLY MAY BE SO USED TO FURTHER THE GENERAL PURPOSES OF THE FOUNDATION. HOWEVER, IT SEEMS REASONABLE TO CONCLUDE THAT, IN GENERAL, WHETHER ENTERTAINMENT IS NECESSARY OR ESSENTIAL TO THE FURTHERANCE OF ONE OR MORE OF THE FOUNDATION'S GENERAL PURPOSES FOR WHICH THE DONATED FUNDS ARE AUTHORIZED TO BE RECEIVED AND USED, IS A CONCLUSION OF FACT TO BE DETERMINED ON THE BASIS OF THE PARTICULAR FACTS AND CIRCUMSTANCES INVOLVED AND IN LIGHT OF THE GENERAL OBJECTIVES OF THE FOUNDATION TO BE SERVED. OTHER WORDS, THE FACTS, IN EACH CASE, MUST REASONABLY JUSTIFY THE CONCLUSION NOT ONLY THAT THE ENTERTAINMENT WILL FURTHER A PURPOSE OF THE FOUNDATION BUT THAT THE FOUNDATION'S FUNCTIONS COULD NOT BE ACCOMPLISHED AS SATISFACTORILY OR AS EFFECTIVELY FROM THE GOVERNMENT'S STANDPOINT WITHOUT SUCH EXPENDITURES. IN SUCH CASES, AN ADMINISTRATIVE DETERMINATION AS TO THE NECESSITY OF EXPENDITURES FOR ENTERTAINMENT TO CARRY OUT EFFECTIVELY THE AUTHORIZED FUNCTIONS OF THE FOUNDATION IS ACCORDED GREAT WEIGHT IN CONSIDERING THE DONATED FUNDS REFERRED TO AVAILABLE TO THE FOUNDATION FOR SUCH PURPOSES.

IN VIEW OF THE LAST-QUOTED PROVISION OF LAW AND IN LIGHT OF WHAT IS STATED IN OUR DECISION OF FEBRUARY 8, 1961, B-142538, WE WOULD NOT OBJECT TO THE CERTIFICATION OF THE VOUCHER--- WHICH IS RETURNED HEREWITH--- FOR PAYMENT OUT OF NSF DONATION ACCOUNT 49X8960, IF IT IS ADMINISTRATIVELY DETERMINED BY THE APPROPRIATE OFFICIALS OF NSF THAT SUCH EXPENDITURES WERE NECESSARY TO FURTHER ONE OR MORE OF THE GENERAL PURPOSES OF THE NSF (AND IF OTHERWISE CORRECT).

YOUR THIRD QUESTION IS ANSWERED ACCORDINGLY.