B-154282, SEPTEMBER 1, 1964, 44 COMP. GEN. 117

B-154282, SEPTEMBER 1, 1964, 44 COMP. GEN. 117

VEHICLES - PURCHASES - LIMITATION - VEHICLES ACQUIRED FROM EXCESS PROPERTY LISTS TRANSFERS OF PASSENGER VEHICLES ACQUIRED FROM OTHER DEPARTMENTS AND AGENCIES UNDER SECTION 202 (A) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 40 U.S.C. 483 (A), ARE NOT OUTSIDE THE PURCHASE LIMITATIONS IN APPROPRIATION ACTS, 5 U.S.C. 78, PROHIBITING THE PURCHASE OR HIRE OF PASSENGER MOTOR VEHICLES UNLESS AUTHORIZED BY AN APPROPRIATION ACT OR OTHER LAW APPLYING TO ALL FORMS OF ACQUISITION, INCLUDING GOVERNMENT TRANSFERS WITH OR WITHOUT REIMBURSEMENT, EMBRACING TRANSFERS UNDER SECTION 202 (A), THE 1949 ACT, A GENERAL LAW RELATING TO ALL FEDERAL PROPERTY, CONTAINING NO AUTHORIZATION TO ACQUIRE VEHICLES WITHOUT REGARD TO 5 U.S.C. 78; HOWEVER, THE BUREAU OF INDIAN AFFAIRS HAVING RELIED ON 26 COMP. GEN. 312 IN THE ACQUISITION OF EXCESS VEHICLES WITHOUT REGARD TO THE PURCHASE LIMITATION IN THE 1963 APPROPRIATION ACT, NO ACTION ON THE TRANSFER WILL BE TAKEN. 26 COMP. GEN. 312, OVERRULED.

TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 1, 1964:

IN THE AUDIT OF THE OPERATIONS OF THE BUREAU OF INDIAN AFFAIRS FOR THE FISCAL YEAR 1963, THIS OFFICE HAS FOUND THAT PASSENGER MOTOR VEHICLES ACQUIRED WITHOUT COST BY TRANSFERS FROM OTHER GOVERNMENT AGENCIES UNDER THE PROVISIONS OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 40 U.S.C. 471, ET SEQ., WERE NOT CONSIDERED ADMINISTRATIVELY AS REQUIRED TO BE INCLUDED WITHIN THE LIMITATION TO PURCHASE 220 PASSENGER MOTOR VEHICLES CONTAINED IN THE APPROPRIATION ACT FOR THE BUREAU FOR THE FISCAL YEAR 1963. THE EFFECT OF THIS ACTION HAS RESULTED IN THE ACQUISITION BY THE BUREAU OF SOME 53 PASSENGER MOTOR VEHICLES FROM THE EXCESS PROPERTY LISTS IN ADDITION TO THOSE AUTHORIZED IN THE 1963 APPROPRIATION ACT. UPON OUR INQUIRY INTO THIS MATTER OFFICIALS OF THE BUREAU OF INDIAN AFFAIRS CITED AS AUTHORITY FOR THIS ACTION A DECISION OF THIS OFFICE, 26 COMP. GEN. 312, AND AN OPINION OF THE SOLICITOR, DEPARTMENT OF THE INTERIOR, M-36145, DATED SEPTEMBER 24, 1952, APPARENTLY BASED UPON THE RULING IN 26 COMP. GEN. 312.

THIS LETTER IS TO ADVISE THAT UPON REVIEW OF THE MATTER WE DO NOT CONSIDER THE PRACTICE WITHIN YOUR DEPARTMENT OF REGARDING VEHICLES TRANSFERRED FROM OTHER FEDERAL DEPARTMENTS AND AGENCIES WITHOUT COSTS AS BEING OUTSIDE THE PURCHASE LIMITATION IN THE APPROPRIATION ACTS TO BE PROPER.

THE DECISION IN 26 COMP. GEN. 312, RELIED UPON WAS RENDERED AT THE REQUEST OF THE ADMINISTRATOR OF VETERANS AFFAIRS AND INVOLVED THE APPLICATION OF THE RESTRICTIONS CONTAINED IN SECTION 5 OF THE ACT OF JULY 16, 1914, AS AMENDED, 5 U.S.C. 78, REGARDING THE ACQUISITION OF PASSENGER MOTOR VEHICLES ON THE AUTHORIZATION CONTAINED IN SECTION 102 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 284, NOW APPEARING IN SUBSTANTIALLY THE SAME FORM IN 38 U.S.C. 5003. THIS LATTER ACT PERMITS THE VETERANS ADMINISTRATION AND THE MILITARY DEPARTMENTS TO ENTER INTO CONTRACTS FOR, AMONG OTHERS, THE TRANSFERS OF HOSPITAL AND DOMICILIARY FACILITIES, SUPPLIES, AND EQUIPMENT WITHOUT REIMBURSEMENT.

INVOLVED THERE WERE PASSENGER MOTOR VEHICLES TRANSFERRED ALONG WITH OTHER HOSPITAL FACILITIES FROM THE ARMY AND NAVY WHICH VEHICLES WERE AN INCIDENTAL PART OF THE ESSENTIAL OPERATING EQUIPMENT OF THE HOSPITALS.

THE PERTINENT PROVISIONS OF 5 U.S.C. 78 READ AS FOLLOWS:

(A) UNLESS SPECIFICALLY AUTHORIZED BY THE APPROPRIATION CONCERNED OR OTHER LAW, NO APPROPRIATION SHALL BE EXPENDED TO PURCHASE OR HIRE PASSENGER MOTOR VEHICLES FOR ANY BRANCH OF THE GOVERNMENT * * *.

(E) 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 OF THIS SECTION.

IN PERMITTING SUCH TRANSFERS IN 26 COMP. GEN. 312, WITH REGARD TO THE QUOTED PROVISIONS ABOVE THE STATEMENT WAS MADE THAT THESE PROVISIONS REPRESENT A LIMITATION UPON THE USE OF APPROPRIATED FUNDS AND SINCE TRANSFERS OF VEHICLES WERE PERMITTED UNDER SECTION 102 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, WITHOUT REIMBURSEMENT THE QUOTED PROVISIONS HAVE NO APPLICATION TO TRANSFERS OF PROPERTY AUTHORIZED TO BE ACCOMPLISHED WITHOUT REIMBURSEMENT.

A REVIEW OF THE LEGISLATIVE HISTORY OF THE AMENDMENT MADE TO SECTION 5 OF THE ACT OF JULY 16, 1914, 5 U.S.C. 78, ABOVE, CONTAINED IN SECTION 16 (A) OF THE ACT OF AUGUST 2, 1946, 60 STAT. 810, 5 U.S.C. 78, SHOWS THE FOLLOWING TO HAVE BEEN THE UNDERSTANDING OF THE CONGRESS AS TO THE MEANING SOUGHT TO BE ACCOMPLISHED BY THE AMENDMENT. BOTH CONGRESSIONAL COMMITTEES IN REPORTING ON THIS LEGISLATION (H.REPT.NO. 2186 AND S.REPT.NO. 1636, 79TH CONGRESS, 2D SESSION) MADE THE FOLLOWING STATEMENTS:

* * * SUBSECTION (A) OF THE AMENDED ACT PROHIBITS (WITH CERTAIN EXCEPTIONS) THE PURCHASE OR HIRE OF PASSENGER MOTOR VEHICLES UNLESS SPECIFICALLY AUTHORIZED BY THE APPROPRIATION CONCERNED OR OTHER LAW. * * * SUBSECTION (E) PROVIDES THAT THE ACQUISITION OF AIRCRAFT OR PASSENGER MOTOR VEHICLES BY ANY AGENCY BY TRANSFER FROM ANOTHER DEPARTMENT IS TO BE CONSIDERED AS A PURCHASE WITHIN THE MEANING OF THE FOREGOING. * * *

IT SEEMS CLEAR FROM A READING OF THIS PORTION OF THE CONGRESSIONAL REPORT THAT IT WAS INTENDED THAT THE ACQUISITION OF MOTOR VEHICLES BY PURCHASE, TRANSFER, OR BY ANY MEANS WAS TO BE PROHIBITED. WHILE THE LANGUAGE USED IN THE STATUTE PROHIBITS OR LIMITS THE EXPENDITURE OF AN APPROPRIATION TO ACQUIRE PASSENGER MOTOR VEHICLES, THE UNDERSTANDING OF THE CONGRESS WAS THAT THE AMENDMENTS TO THE 1914 LAW WOULD ACTUALLY PROHIBIT THE ACQUISITION OF PASSENGER MOTOR VEHICLES UNLESS SPECIFICALLY AUTHORIZED BY AN APPROPRIATION OR OTHER LAW. CONSIDERING THAT THE PROVISIONS IN SUBSECTION (E), 5 U.S.C. 78 (E), QUOTED ABOVE WERE NEW PROVISIONS AT THE TIME OF THE 1946 AMENDMENT THEIR OBVIOUS PURPOSE WAS TO ENLARGE THE RESTRICTIONS CONTAINED IN SUBSECTION (A), 5 U.S.C. 78 (A), CONCERNING THE PURCHASE OF PASSENGER MOTOR VEHICLES TO INCLUDE ALL FORMS OF ACQUISITION INCLUDING TRANSFERS WHETHER OR NOT REIMBURSEMENT WAS REQUIRED. WHILE A LITERAL READING OF THE STATUTORY LANGUAGE MIGHT NOT PRODUCE THIS RESULT, WE ARE OF THE OPINION THAT HENCEFORTH THE UNDERLYING INTENTION RATHER THAN THE LITERAL LANGUAGE SHOULD CONTROL. IT IS THE OPINION OF THIS OFFICE, THEREFORE, THAT THE RESTRICTIONS CONTAINED IN 5 U.S.C. 78 QUOTED ABOVE ARE TO BE REGARDED AS AN ABSOLUTE PROHIBITION AGAINST THE ACQUISITION OF SUCH VEHICLES BY PURCHASE, TRANSFER OR ANY OTHER MEANS UNLESS SPECIFIC AUTHORIZATION FOR PURCHASE OR ACQUISITION OF VEHICLES IS PROVIDED BY AN APPROPRIATION OR OTHER LAW. TRANSFERS OF PASSENGER MOTOR VEHICLES AUTHORIZED UNDER THE PROVISIONS OF SECTION 202 (A) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 40 U.S.C. 483 (A), WITH OR WITHOUT REIMBURSEMENT, ARE EMBRACED WITHIN LIMITATIONS SET FORTH IN THE QUOTED PROVISIONS ABOVE SINCE SUCH ACT IS A GENERAL LAW RELATING TO ALL FEDERAL PROPERTY AND CONTAINS NO SPECIFIC AUTHORIZATION TO ACQUIRE PASSENGER MOTOR VEHICLES WITHOUT REGARD TO THE PROVISIONS IN 5 U.S.C. 78, SUPRA. THUS SUCH TRANSFERS ARE REQUIRED TO BE INCLUDED WITHIN THE PURCHASE AUTHORIZATION CONTAINED IN THE ANNUAL APPROPRIATION ACTS.

ACCORDINGLY, THE RATIONALE UNDERLYING THE DECISION AT 26 COMP. GEN. 312 WILL NO LONGER BE FOLLOWED. HOWEVER, SINCE THE TRANSFER OF THE 53 VEHICLES IN QUESTION WAS ACCOMPLISHED UNDER THE BELIEF THAT THE RULING IN 26 COMP. GEN. 312 PERMITTED SUCH TRANSFER WITHOUT REGARD TO THE LIMITATION EXPRESSED IN THE FISCAL YEAR 1963 APPROPRIATION OF THE BUREAU OF INDIAN AFFAIRS, NO FURTHER AUDIT ACTION WILL BE TAKEN WITH RESPECT TO THIS MATTER.