B-153348, OCTOBER 3, 1975, 55 COMP.GEN. 348

B-153348, OCTOBER 3, 1975, 55 COMP.GEN. 348

VEHICLES - ACQUISITION BY PURCHASE OR TRANSFER - FOR USE BY GRANTEES ACQUISITION BY AGENCIES OF AIRCRAFT AND PASSENGER MOTOR VEHICLES BY PURCHASE OR TRANSFER IS PROHIBITED BY 31 U.S.C. 638A, UNLESS SPECIFICALLY AUTHORIZED BY APPROPRIATION ACT OR OTHER LAW, AND THIS PROHIBITION APPLIES TO ACQUISITION BY TRANSFER BY LAW ENFORCEMENT ASSISTANCE ADMINISTRATION OF AIRCRAFT OR PASSENGER MOTOR VEHICLES FOR USE BY GRANTEES IN THEIR REGULAR LAW ENFORCEMENT FUNCTIONS BECAUSE AGENCY OBTAINS CUSTODY AND ACCOUNTABILITY AND EXCEPTION WOULD REDUCE CONGRESSIONAL CONTROL OVER AIRCRAFT AND VEHICLES. SEE 44 COMP.GEN. 117. 43 COMP.GEN. 697, 49 COMP.GEN. 202 AND B-162525, DECEMBER 21, 1967, DISTINGUISHED.

IN THE MATTER OF TRANSFERABILITY OF PASSENGER MOTOR VEHICLES AND AIRCRAFT BETWEEN FEDERAL AGENCIES FOR USE BY GRANTEES, OCTOBER 3, 1975:

BY LETTER OF DECEMBER 19, 1974, THE ADMINISTRATOR OF THE LAW ENFORCEMENT ASSISTANCE ADMINISTRATION (LEAA) REQUESTED A DECISION AS TO WHETHER THE STATUTORY RESTRICTION ON THE TRANSFER OF EXCESS MOTOR VEHICLES AND AIRCRAFT FROM ONE FEDERAL AGENCY TO ANOTHER (31 U.S.C. 638A) APPLIES WHERE THE RECEIVING AGENCY RETAINS ONLY LEGAL TITLE AND ITS GRANTEE RECEIVES THE USE OF THE PROPERTY FOR PURPOSES OF A GRANT. THE ADMINISTRATOR STATES THAT THE FEDERAL EXCESS PROPERTY LIST HAS INCLUDED HELICOPTERS AND OTHER VEHICLES WHICH ARE USABLE BY STATE AND LOCAL GOVERNMENT GRANTEES FOR THEIR LAW ENFORCEMENT FUNCTIONS.

IN BRIEF, 31 U.S.C. 638A (1970) PROHIBITS FEDERAL AGENCIES FROM ACQUIRING -- BY PURCHASE, TRANSFER, OR HIRE-- PASSENGER MOTOR VEHICLES OR AIRCRAFT UNLESS SPECIFICALLY AUTHORIZED TO DO SO BY AN APPROPRIATION ACT OR OTHER LAW. THE LEAA ADMINISTRATOR CONTENDS THAT THE CONGRESSIONAL INTENT BEHIND THIS RESTRICTION WAS TO PREVENT POTENTIAL ABUSES OF PROPERTY WITHIN AN AGENCY AND PROMOTE GREATER ACCOUNTABILITY IN THE GOVERNMENT AND THAT THE INTENT IS NOT FRUSTRATED BY PERMITTING GRANTEES TO UTILIZE EXCESS AIRCRAFT OR MOTOR VEHICLES FOR ORIGINALLY INTENDED PURPOSES. HE STATES THAT AIRCRAFT OR MOTOR VEHICLES TRANSFERRED FROM ONE FEDERAL AGENCY TO A GRANTEE OF ANOTHER AGENCY ARE NOT ACQUIRED BY THE RECEIVING AGENCY IN THE SENSE PROSCRIBED BY THE STATUTE; THAT THE GRANTEE PAYS ALL THE COSTS OF THE TRANSFER; AND THAT THE RECEIVING AGENCY IS NOT ENTITLED TO THE BENEFICIAL USE OF THE PROPERTY. HE CONCLUDES THAT PROHIBITING TRANSFERS TO GRANTEES WAS NEVER CONTEMPLATED BY 31 U.S.C. 638A.

AS SUPPORT FOR HIS POSITION, THE ADMINISTRATOR CITES 43 COMP.GEN. 697 (1964), WHERE WE HELD THAT EXPENDITURES FROM FUNDS GRANTED BY THE NATIONAL SERVICE FOUNDATION FOR SCIENTIFIC RESEARCH BY GRANTEES MAY BE MADE WITHOUT REGARD TO THE PROHIBITION ON THE PURCHASE OF AIRCRAFT WITHOUT SPECIFIC STATUTORY AUTHORITY. FINALLY, THE ADMINISTRATION CITES THE FEDERAL PROPERTY MANAGEMENT REGULATIONS ISSUED BY GENERAL SERVICES ADMINISTRATION (GSA) WHICH PROVIDE, AT 41 C.F.R. 101 43.320(B), THAT--

* * * EXCESS PERSONAL PROPERTY CAN ALSO BE USED TO EXPAND THE ABILITY OF A CONTRACTOR OR PROJECT GRANTEE TO FULFILL HIS MISSION, AND SHALL BE CONSIDERED FOR THIS USE WHEREVER POSSIBLE. * * *

THE STATUTORY RESTRICTIONS ON ACQUIRING AIRCRAFT AND MOTOR VEHICLES IMPOSED ON FEDERAL AGENCIES BY 31 U.S.C. 638A DO NOT CONTAIN ANY EXCEPTION FOR SUCH PROPERTY ACQUIRED BY AN AGENCY FOR USE BY ITS GRANTEES, AND WE DO NOT BELIEVE IT WOULD BE APPROPRIATE TO MAKE A BROAD EXCEPTION BY DECISION.

IT SEEMS CLEAR THAT THE PURPOSE BEHIND SECTION 638A OF TITLE 31 WAS TO GIVE CONGRESS SOME MEASURE OF CONTROL OVER THE ACQUISITION OF PASSENGER MOTOR VEHICLES AND AIRCRAFT BY FEDERAL AGENCIES. THE ACQUISITION OF SUCH PROPERTY IS NOT BARRED; IT IS SIMPLY MADE SUBJECT TO APPROVAL BY CONGRESS IN THE ANNUAL APPROPRIATION PROCESS. IF AN AGENCY DOES NOT OBTAIN AUTHORIZATION FOR ACQUIRING MOTOR VEHICLES OR AIRCRAFT IN ITS APPROPRIATION ACT OR OTHER LAW, THEN 31 U.S.C. 638A BECOMES A PROHIBITION ON ACQUISITION BY OTHER MEANS. SUBSECTION (E) OF SECTION 638A EXPRESSLY MAKES THE RESTRICTION APPLICABLE TO THE ACQUISITION OF AIRCRAFT OR PASSENGER MOTOR VEHICLES BY ANY AGENCY BY TRANSFER FROM ANOTHER AGENCY.

IN 44 COMP.GEN. 117 (1964), WE HELD THAT THE STATUTORY RESTRICTIONS APPLIED TO PASSENGER VEHICLES ACQUIRED BY TRANSFER FROM OTHER DEPARTMENTS AND AGENCIES, WITH OR WITHOUT REIMBURSEMENT. IN OVERRULING 26 COMP.GEN. 312 (1946) WHICH HAD HELD THE STATUTORY PROVISIONS INAPPLICABLE TO TRANSFERS WITHOUT REIMBURSEMENT, WE REVIEWED THE LEGISLATIVE HISTORY OF THE STATUTE (THEN CODIFIED AS 5 U.S.C. 78) AND FOUND A CLEAR INTENTION THAT THE ACQUISITION OF MOTOR VEHICLES BY PURCHASE, TRANSFER, OR BY ANY MEANS WAS TO BE PROHIBITED UNLESS SPECIFICALLY AUTHORIZED BY AN APPROPRIATION OR OTHER LAW. OUR HOLDING WAS AS FOLLOWS (44 COMP.GEN. 117, AT 119):

* * * 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.

BY WAY OF GENERAL BACKGROUND, SECTION 202(A) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT, REFERRED TO IN THE QUOTATION ABOVE, DIRECTS THE ADMINISTRATOR OF THE GENERAL SERVICES ADMINISTRATION "TO PROMOTE THE MAXIMUM UTILIZATION OF EXCESS PROPERTY BY EXECUTIVE AGENCIES AND . . . PROVIDE FOR THE TRANSFER OF EXCESS PROPERTY AMONG FEDERAL AGENCIES . . . ." TO ACCOMPLISH THIS OBJECTIVE, PERSONAL PROPERTY NO LONGER NEEDED BY A FEDERAL AGENCY IS REQUIRED TO BE REPORTED AS EXCESS TO GSA WHICH DETERMINES IF OTHER FEDERAL AGENCIES HAVE A NEED FOR THE EXCESS PROPERTY. UNDER GSA'S FEDERAL PROPERTY MANAGEMENT REGULATIONS, FEDERAL AGENCIES ACQUIRING EXCESS PERSONAL PROPERTY ARE AUTHORIZED: (1) TO USE IT FOR THEIR OWN PROGRAMS, OR (2) TO MAKE IT AVAILABLE TO THEIR GRANTEES AND COST REIMBURSABLE CONTRACTORS. 41 C.F.R. 101-43.301, 320.

THE USE OF EXCESS PROPERTY IN GENERAL BY FEDERAL GRANTEES WAS APPROVED BY THE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, BY LETTERS OF MAY 15, 1968, AND MAY 25, 1970, TO THE OFFICE OF ECONOMIC OPPORTUNITY. THE COMPTROLLER GENERAL LIKEWISE APPROVED MAKING EXCESS PROPERTY AVAILABLE TO GRANTEES IN A DECISION OF DECEMBER 21, 1967, B 162525. EXCESS PROPERTY WHICH IS NOT NEEDED BY ANY FEDERAL AGENCY BECOMES "SURPLUS PROPERTY" TO BE DISPOSED OF BY SALE OR BY DONATION WITHOUT COST TO STATES FOR EDUCATIONAL, PUBLIC HEALTH OR CIVIL DEFENSE PURPOSES, 40 U.S.C. 484(C) AND (J) (1970).

A NUMBER OF PROBLEMS HAVE DEVELOPED IN BOTH THE GRANTEE PROGRAM AND THE DONATION PROGRAM. THE AD HOC INTERAGENCY STUDY GROUP ON UTILIZATION OF EXCESS FEDERAL PROPERTY, IN ITS REPORT OF JANUARY 7, 1974, TO THE GSA ADMINISTRATOR, HAS MADE LONG-TERM RECOMMENDATIONS TO ELIMINATE ACQUISITION OF EXCESS PROPERTY BY FEDERAL AGENCIES FOR THEIR GRANTEES AND TO ALLOW SURPLUS PROPERTY TO BE DONATED TO STATES, FOR GENERAL PUBLIC USE. THESE RECOMMENDATIONS WOULD REQUIRE LEGISLATION AMENDING THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT.

WITH REGARD TO THE RESTRICTIONS ON ACQUIRING VEHICLES AND AIRCRAFT IN 31 U.S.C. 638A, WE HAVE RECOGNIZED EXCEPTIONS TO THE STATUTE WHERE THE USE HAS BEEN SOLELY FOR RESEARCH PURPOSES. SEE 49 COMP.GEN. 202 (1969) AND PRIOR DECISIONS CITED THEREIN. HOWEVER, WE DO NOT BELIEVE THAT THIS LIMITED EXCEPTION SHOULD BE EXTENDED TO COVER THE NORMAL USE OF MOTOR VEHICLES AND AIRCRAFT BY GRANTEES OF FEDERAL AGENCIES. IN SUCH CASES THE FEDERAL AGENCY INVOLVED ACQUIRES CUSTODY AND ACCOUNTABILITY FOR THE EXCESS PROPERTY TRANSFERRED TO IT FOR USE BY ITS GRANTEES AND, AFTER A GRANT IS COMPLETED, THE PROPERTY IS SUBJECT TO THE CONTROL OF THE FEDERAL AGENCY. THUS, GRANTING THE LEAAS REQUEST WOULD DIMINISH THE CONTROL OF CONGRESS OVER THE NUMBER OF VEHICLES AND AIRCRAFT ACQUIRED BY FEDERAL AGENCIES. OUR HOLDING IN 43 COMP.GEN. 697 (1964) THAT THE NATIONAL SCIENCE FOUNDATION'S GRANTEES MAY PURCHASE AIRCRAFT FOR SCIENTIFIC RESEARCH WITHOUT REGARD TO 31 U.S.C. 638A IS DISTINGUISHABLE BECAUSE IT INVOLVED EXPENDITURES FROM GRANT FUNDS BY GRANTEES.

WE CONCLUDE THAT, ALTHOUGH 44 COMP.GEN. 117, SUPRA, DID NOT INVOLVE THE QUESTION OF THE USE OF EXCESS PROPERTY BY GRANTEES, IT IS NEVERTHELESS CONTROLLING. WE, THEREFORE, HOLD THAT 31 U.S.C. 638A APPLIES TO THE ACQUISITION BY TRANSFER BY THE LAW ENFORCEMENT ASSISTANCE ADMINISTRATION OF EXCESS AIRCRAFT OR PASSENGER MOTOR VEHICLES FOR USE BY ITS GRANTEES IN THEIR REGULAR LAW ENFORCEMENT FUNCTIONS.

OUR DECISION DOES NOT MEAN THAT THE EXCESS AIRCRAFT OR VEHICLES WILL GO UNUSED. INSTEAD, AS INDICATED IN THE AD HOC STUDY GROUP'S REPORT, IT MAY RESULT IN A MORE EQUITABLE DISTRIBUTION OF SUCH PROPERTY. IF NO FEDERAL AGENCY HAS A DIRECT NEED FOR SUCH EXCESS ITEMS FOR ITS OWN PROGRAMS, THE ITEMS WILL BE DECLARED SURPLUS BY GSA AND WILL BE AVAILABLE FOR DONATION THROUGH STATE AGENCIES TO ELIGIBLE RECIPIENTS UNDER SECTION 203(J) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT, AS AMENDED, 40 U.S.C. 484(J).