B-114876, MAR. 15, 1960

B-114876, MAR. 15, 1960

TO THE SECRETARY OF STATE:

THIS IS IN RESPONSE TO YOUR LETTER OF FEBRUARY 5, 1960, FILE REFERENCE CU:IES, CONCERNING THE OBLIGATION OF FUNDS UNDER THE INTERNATIONAL EDUCATIONAL EXCHANGE PROGRAMS. THE SUBJECT LETTER STATES THAT OUR DECISION OF JANUARY 21, 1960, B-114876, IS NOT IN ACCORD WITH THE APPARENT UNDERSTANDING REACHED BETWEEN REPRESENTATIVES OF YOUR DEPARTMENT AND OUR OFFICE; AND IN VIEW THEREOF SETS FORTH THE PERTINENT MATTERS DISCUSSED AT THE CONFERENCE ON DECEMBER 17, 1959, AND YOUR UNDERSTANDING OF THE AGREEMENT REACHED ON THESE MATTERS, AS FOLLOWS:

"1. THE ALTERNATE PROCEDURE WHICH HAS BEEN IN USE SINCE 1951 IS NO LONGER VALID.

"2. A PROCEDURE WHEREBY AN ALTERNATE MAY BE DESIGNATED AFTER THE CLOSE OF A FISCAL YEAR IF HE HAD BEEN SPECIFIED AS AN ALTERNATE PRIOR TO THE CLOSE OF THE FISCAL YEAR IS PROPER.

"3. THAT THE DEPARTMENT'S POSITION OF ASSUMING THAT THE APPROVAL OF FORM DS-1006, UNITED STATES GOVERNMENT GRANT AUTHORIZATION, BY LETTER OF APRIL 28, 1953, (A-44014) CONSTITUTED APPROVAL OF THE ALTERNATE PROCEDURE AS THEN BEING USED WAS A LEGITIMATE ONE. THIS PROCEDURE WAS EXPLAINED IN THE DEPARTMENT'S LETTER OF MARCH 24, 1953 SUBMITTING THE FORM DS-1006 FOR THE APPROVAL OF YOUR OFFICE.

"IN VIEW OF THE ABOVE, YOUR OFFICE WOULD TAKE NO ACTION ON CASES INVOLVING ALTERNATES DESIGNATED UNDER THE OLD PROCEDURE AND A NEW PROCEDURE WOULD BE IMPLEMENTED AS SOON AS POSSIBLE.'

AT THE CONFERENCE OF DECEMBER 17, 1959, YOUR REPRESENTATIVES PRESENTED A MEMORANDUM ADDRESSED TO A REPRESENTATIVE OF THIS OFFICE STATING THEIR UNDERSTANDING AND REQUESTING CONFIRMATION OF AN AGREEMENT SAID TO HAVE BEEN REACHED IN A PREVIOUS CONFERENCE BETWEEN SUCH REPRESENTATIVES ON JUNE 16, 1959, TO THE EFFECT THAT OBLIGATIONS CONCERNING ALTERNATE GRANTEES DESIGNATED IN REPLACEMENT OF PRINCIPAL GRANTEES DESIGNATED IN PRIOR FISCAL YEARS COULD BE CHARGED AGAINST THE SAME PRIOR YEARS' FUNDS AS THE OBLIGATIONS FOR THE PRINCIPAL GRANTEES. OUR REPRESENTATIVES STATED THAT THEY HAD NOT APPROVED SUCH A PROCEDURE AND THAT THE PROCEDURE DID NOT SEEM TO BE IN COMPLIANCE WITH SECTION 1311 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1955. THEY AGREED, HOWEVER, TO GIVE THE MATTER FURTHER STUDY AND TO INFORM YOUR REPRESENTATIVES OF THEIR CONCLUSIONS. THIS WAS THE EXTENT OF ANY UNDERSTANDING REACHED AT THE CONFERENCE ON DECEMBER 17, 1959. DURING THE FURTHER CONSIDERATION OF THIS QUESTION IT WAS CONCLUDED THAT A FORMAL DECISIONS ON THE MATTER SHOULD BE ISSUED. ONE OF YOUR REPRESENTATIVES WAS INFORMED OF OUR CONCLUSION IN THE MATTER IN A TELEPHONE CONVERSATION ON JANUARY 19, 1960, AND HE AGREED THAT A FORMAL DECISION WOULD BE DESIRABLE. OUR DECISION OF JANUARY 21, 1960, WAS THEN ISSUED.

AS TO ITEM NO. 1, NO AGREEMENT WAS REACHED AT THE CONFERENCE ON DECEMBER 17, 1959, BUT OUR DECISION OF JANUARY 21, 1960, MAKES IT CLEAR THAT THE PRESENT ALTERNATE PROCEDURE DOES NOT VALIDLY OBLIGATE PRIOR FISCAL YEAR APPROPRIATIONS. AS INDICATED IN THAT DECISION, THIS PROCEDURE WAS QUESTIONED BY THIS OFFICE IN A CONFERENCE ON JULY 8, 1958, AND IT WAS THEN AGREED THAT REVISED REGULATIONS WOULD BE PREPARED, CLEARED WITH THIS OFFICE, AND ISSUED. NO PROPOSED REVISED REGULATIONS, HOWEVER, WERE THEREAFTER PRESENTED TO THIS OFFICE OR APPARENTLY ISSUED.

WHILE THE PROCEDURE SET OUT IN ITEM 2 WAS NOT INVOLVED IN THE MEMORANDUM PRESENTED TO US AT THE CONFERENCE ON DECEMBER 17, 1959, AND CONSEQUENTLY NOT CONSIDERED IN OUR DECISION OF JANUARY 21, A SIMILAR PROCEDURE WAS DISCUSSED AT THE CONFERENCE AND SERIOUS DOUBTS WERE EXPRESSED BY OUR REPRESENTATIVES AS TO ITS LEGALITY. IN RESPONSE TO YOUR REPRESENTATIVE'S SPECIFIC QUESTION IN THE TELEPHONE CONVERSATION OF JANUARY 19, 1960, HE WAS ADVISED THAT WE HAD GIVEN THIS MATTER NO FURTHER CONSIDERATION AND THAT IT WOULD NOT BE COVERED IN THE FORTHCOMING DECISION. WE BELIEVE A PROCEDURE COMPLYING WITH SECTION 1311 AND OTHER LAWS COULD BE DEVELOPED WHICH WOULD PERMIT THE DESIGNATION OF AN ALTERNATE AT THE TIME AN AWARD IS MADE TO THE PRINCIPAL GRANTEE PROVIDED THAT ALL OF THE CRITERIA FOR SELECTION OF THE PRINCIPAL AND REQUIRED ADMINISTRATIVE ACTION ARE ALSO MET CONCERNING THE ALTERNATE WITH THE SOLE EXCEPTION THAT THE AWARD TO THE ALTERNATE IS NOT MAILED TO HIM PENDING A DETERMINATION AS TO WHETHER THE PRINCIPAL ACTUALLY COMPLIES WITH THE TERMS OF HIS AWARD. WE BELIEVE, HOWEVER, THAT IF IT IS DESIRED TO USE ANY PROCEDURE TO QUALIFY ALTERNATES ON SUCH A CONTINGENCY BASIS, THE PROCEDURE SHOULD BE DEVELOPED IN DETAIL AND SUBMITTED TO THIS OFFICE FOR REVIEW AND DETERMINATION OF ITS LEGALITY.

CONCERNING ITEM NO. 3, THERE WAS NO AGREEMENT AT THE CONFERENCE ON DECEMBER 17, 1959, WITH YOUR DEPARTMENT'S POSITION THAT OUR APPROVAL OF FORM DS-1006, UNITED STATES GOVERNMENT GRANT AUTHORIZATION, BY LETTER OF APRIL 28, 1953, A-44014, CONSTITUTED APPROVAL OF THE ALTERNATE PROCEDURE. DURING OUR REVIEW OF THE MATTER AFTER THE CONFERENCE, HOWEVER, WE CONCLUDED THAT THERE WAS SOME BASIS FOR YOUR DEPARTMENT'S ASSUMPTION THAT OUR APPROVAL OF THE FORM WAS AN APPROVAL OF THE ALTERNATE PROCEDURE EVEN THOUGH THE LEGALITY OF THE PROCEDURE WAS NOT A SUBJECT OF CONSIDERATION AT THAT TIME. FOR THIS REASON WE DECIDED THAT A FORMAL DECISION CLARIFYING THE MATTER SHOULD BE ISSUED. NEITHER ARE WE AWARE OF ANY AGREEMENT AT THE DECEMBER 17 CONFERENCE THAT THIS OFFICE WOULD TAKE NO ACTION ON CASES INVOLVING ALTERNATES DESIGNATED UNDER THE OLD PROCEDURE NOR THAT THIS MATTER WAS DISCUSSED AT THAT MEETING. YOUR REPRESENTATIVE DID RAISE THIS QUESTION DURING THE TELEPHONE CONVERSATION ON JANUARY 19 AND WAS INFORMED THAT THIS MATTER HAD NOT BEEN CONSIDERED. IN VIEW OF ALL OF THE CIRCUMSTANCES AND NOTWITHSTANDING THAT THIS MATTER HAD BEEN QUESTIONED AS EARLY AS THE CONFERENCE ON JULY 8, 1958, WE ARE AGREEABLE THAT THE DATE OF FEBRUARY 28, 1960, PROPOSED IN YOUR LETTER BE RECOGNIZED AS THE FINAL DEADLINE FOR DESIGNATING ALTERNATES AGAINST PRIOR YEAR FUNDS WITH THE UNDERSTANDING THAT YOUR PROCEDURES WILL BE CHANGED TO COMPLY WITH OUR DECISION OF JANUARY 21, 1960.

WE HOPE THAT THIS MATTER HAS NOW BEEN CLARIFIED SO THAT THE RESPONSIBLE OFFICIALS OF YOUR DEPARTMENT MAY BE CORRECTLY INFORMED REGARDING THE REQUIREMENTS FOR ESTABLISHING OBLIGATIONS FOR GRANTS UNDER THE INTERNATIONAL EDUCATIONAL EXCHANGE PROGRAMS IN COMPLIANCE WITH SECTION 1311 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1955, AND OTHER RELATED LAWS.