B-182342, JUN 20, 1975, 54 COMP GEN 1075

B-182342, JUN 20, 1975, 54 COMP GEN 1075

APPROPRIATIONS - AVAILABILITY - TELEVISION SET - ENVIRONMENTAL PROTECTION AGENCY SHIP IN VIEW OF FACT THAT CREW AND SCIENTISTS ABOARD ENVIRONMENTAL PROTECTION AGENCY SHIP, ROGER R. SIMON, ARE CONFINED FOR EXTENDED PERIODS WITHOUT ANY COMMON RECREATIONAL FACILITIES AND THAT THEY ARE UNABLE TO PERSONALLY PROVIDE THEIR OWN PORTABLE TELEVISIONS DUE TO THE SHIP'S CONFIGURATION, APPROPRIATED FUNDS MAY BE USED TO PURCHASE TELEVISION SET AND SPECIAL ANTENNA AND ROTOR SHOULD RESPONSIBLE EPA OFFICIAL FIND IT NECESSARY FOR MOST EFFICIENT AND ECONOMICAL PERFORMANCE OF THE SHIP'S FUNCTIONS.

IN THE MATTER OF THE PURCHASE OF A TELEVISION SET FOR INSTALLATION ON ENVIRONMENTAL PROTECTION AGENCY SHIP, JUNE 20, 1975:

THE ASSISTANT ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY (EPA) FOR PLANNING AND MANAGEMENT PRESENTS FOR OUR CONSIDERATION TWO QUESTIONS CONCERNING THE PURCHASE OF A TELEVISION SET FOR INSTALLATION ON A SHIP OWNED BY THAT AGENCY. THE VESSEL, ROGER R. SIMON, IS OPERATED AS GOVERNMENT-FURNISHED PROPERTY UNDER CONTRACT WITH THE GREAT LAKES LABORATORY, STATE UNIVERSITY OF NEW YORK, BUFFALO. THE CONTRACT PROVIDES FOR THE UNIVERSITY TO OPERATE THE SHIP AND TO FURNISH A CREW, BUT ANY MAJOR PIECES OF EQUIPMENT FOR THE SHIP ARE TO BE PURCHASED BY THE EPA.

THE SHIP GATHERS AND EVALUATES WATER SAMPLES COLLECTED IN THE GREAT LAKES. SEE 33 U.S.C. SECS. 1251, 1254(F), 1258 (SUPP. II, 1972). THE SHIP'S PERSONNEL CONSISTS OF 10 UNIVERSITY-SUPPLIED CREWMEN AND FROM 5 TO 10 EPA SCIENTISTS. A NORMAL CRUISE LASTS FROM 7 TO 15 DAYS, ORDINARILY WITHOUT PUTTING INTO DOCK DURING THE DURATION OF THE CRUISE. THE EPA SCIENTISTS ON BOARD ARE FURNISHED LODGING AND MEALS AND ARE, CONSEQUENTLY, ONLY COMPENSATED $1 PER DIEM AND THE VESSEL MOVES FROM SAMPLING POINT TO SAMPLING POINT AFTER THE SCIENTISTS' NORMAL WORK HOURS.

IT IS AGAINST THIS BACKGROUND THAT BOTH THE EPA SCIENTISTS AND THE SHIP'S CREW REQUEST THE INSTALLATION OF A TELEVISION IN THE SHIP'S LOUNGE. SUPPORT OF THEIR REQUEST, THEY ASSERT THE FOLLOWING ARGUMENTS:

(A) NO OTHER COMMON RECREATIONAL FACILITIES ARE AVAILABLE ON THE SHIP.

(B) LIMITED SPACE AND THE NEED FOR A SPECIAL ANTENNA AND ROTOR PREVENTS INDIVIDUALS PROVIDING PORTABLES OF THEIR OWN.

(C) THE EPA EMPLOYEES ARE, IN A SENSE, CAPTIVE ON BOARD AND THEIR PER DIEM HAS BEEN REDUCED TO $1.00 PER DAY SINCE LODGING AND MEALS ARE PROVIDED. A TELEVISION IS COMMONLY PROVIDED AS A PART OF COMMERCIAL LODGING THROUGHOUT THE UNITED STATES.

FURTHERMORE, EPA'S ASSISTANT ADMINISTRATOR ASSERTS HIS PREFERENCE FOR THIS EXPENSE RATHER THAN OTHER ALTERNATIVES SUCH AS LENGTHENING THE CRUISE TO ALLOW FREQUENT DOCKING WHICH WOULD PERMIT THE CREW TO USE COMMERCIAL LODGINGS AND FACILITIES, BUT WOULD SUBSTANTIALLY INCREASE THE COST TO THE GOVERNMENT IN BOTH TIME AND MONEY.

THE TWO QUESTIONS PRESENTED ARE:

1. UNDER THE CIRCUMSTANCES DESCRIBED ABOVE, MAY THE AGENCY PROCURE A TELEVISION SET OR REIMBURSE THE CONTRACTOR FOR PROVIDING A SET OUT OF APPROPRIATED FUNDS?

2. IF THE ANSWER TO THE FIRST QUESTION IS NEGATIVE, CAN MISCELLANEOUS CONTRIBUTED FUNDS UNDER 33 U.S.C. 1155 OR 42 U.S.C. 219 BE UTILIZED FOR SUCH A PURPOSE?

THE GENERAL RULE CONCERNING THE USE OF APPROPRIATED FUNDS FOR RECREATIONAL OR ENTERTAINMENT PURPOSES IS FOUND AT 18 COMP. GEN. 147 (1938):

WHILE THE FURNISHING OF RECREATIONAL FACILITIES MAY BE HIGHLY DESIRABLE, PARTICULARLY IN A PLACE SUCH AS REFERRED TO IN YOUR LETTER (MIDWAY ISLAND), THEY CONSTITUTE EXPENSES WHICH ARE PERSONAL TO THE EMPLOYEES AND WHICH ARE NOT PERMITTED TO BE FURNISHED FROM APPROPRIATED FUNDS UNLESS PROVIDED IN THE APPROPRIATION EITHER SPECIFICALLY OR BY NECESSARY IMPLICATION.

SINCE WE ARE UNABLE TO DISCOVER A SPECIFIC APPROPRIATION FOR THE PURPOSE REQUESTED HERE, THE ISSUE HERE IS WHETHER THE EXPENDITURE OF $400 FOR A TELEVISION MAY BE CONSIDERED A NECESSARY EXPENSE FOR CARRYING OUT THE PURPOSES OF THE EPA APPROPRIATION. WE EXPLAINED THE PHRASE, "NECESSARY IMPLICATION," IN OUR DECISION PUBLISHED AT 27 COMP. GEN. 679 (1948):

IT MAY BE STATED AS A GENERAL RULE THAT THE USE OF APPROPRIATED FUNDS FOR OBJECTS NOT SPECIFICALLY SET FORTH IN THE APPROPRIATION ACT BUT HAVING A DIRECT CONNECTION WITH AND ESSENTIAL TO THE CARRYING OUT OF THE PURPOSES FOR WHICH THE FUNDS WERE APPROPRIATED IS AUTHORIZED. ID. AT 681.

WE HAVE HELD THAT THE EXPENDITURE OF APPROPRIATED FUNDS FOR RECREATIONAL OR ENTERTAINMENT PURPOSES WAS PERMISSIBLE IN A FEW INSTANCES. FOR EXAMPLE, ATTENTION IS DIRECTED TO B-173009, JULY 20, 1971, WHERE A FEDERAL AVIATION ADMINISTRATION APPROPRIATION FOR "THE CONSTRUCTION AND FURNISHING OF QUARTERS AND RELATED ACCOMMODATIONS" WAS INTERPRETED "AS INCLUDING CERTAIN LIMITED RECREATION FACILITIES SUCH AS TENNIS COURTS AND PLAYGROUND FACILITIES" IN AN ISOLATED SECTOR OF THE PANAMA CANAL ZONE. IN 41 COMP. GEN. 264 (1961), WE HELD THAT A PROVISION IN THE AMERICAN-MEXICAN TREATY ACT OF 1950, 22 U.S.C. 277D-1 NOTE (TAKEN TOGETHER WITH ITS LEGISLATIVE HISTORY), SPECIFICALLY AUTHORIZING THE CONSTRUCTION OF RECREATIONAL FACILITIES FOR "OFFICERS, AGENTS, AND EMPLOYEES OF THE UNITED STATES," WAS SUFFICIENTLY BROAD TO INCLUDE, "BY IMPLICATION," THE EMPLOYEES' FAMILIES AND CONSEQUENTLY THAT THE PURCHASE OF PLAYGROUND EQUIPMENT FOR THE CHILDREN OF THE EMPLOYEES WAS AUTHORIZED. APPROVAL WAS ALSO EXTENDED TO A PROPOSAL TO PAY THE COSTS OF TRANSPORTATION INVOLVED IN SHIPPING MUSICAL INSTRUMENTS, BILLIARD AND PING PONG TABLES, BASEBALL EQUIPMENT, AND OTHER SIMILAR EQUIPMENT OBTAINED FROM SURPLUS MILITARY STOCK TO WEATHER BUREAU INSTALLATIONS IN THE ARCTIC. PURSUANT TO 15 U.S.C. SEC. 328 THE MILITARY DEPARTMENTS WERE AUTHORIZED TO TRANSFER WITHOUT CHARGE SURPLUS EQUIPMENT AND SUPPLIES WICH ARE NECESSARY FOR THE ESTABLISHMENT, MAINTENANCE AND OPERATION OF ARCTIC WEATHER STATIONS. IN OUR DECISION, B-144237, NOVEMBER 7, 1960, WE STATED:

IN THE PRESENT CASE, HOWEVER, IN VIEW OF THE ISOLATED LOCATIONS OF THESE ARCTIC WEATHER STATIONS, THE CONFINEMENT TO THE STATIONS OF THE EMPLOYEES DURING A LARGE PART OF THE YEAR, THE CONSEQUENT PROBLEM OF ADJUSTMENT OF EMPLOYEES TO ENVIRONMENT, AND THE DIFFICULTIES OF REMOVING AND REPLACING EMPLOYEES WHO ARE UNABLE SO TO ACCOMMODATE THEMSELVES, IT SEEMS REASONABLE TO CONSIDER THAT EQUIPMENT INTENDED TO ALLEVIATE THOSE CONDITIONS HAS A DIRECT CONNECTION WITH AND IS ESSENTIAL TO THE EFFICIENT AND SUCCESSFUL OPERATION OF THE NETWORK. FURTHERMORE, UNDER THESE CIRCUMSTANCES, AND CONSIDERING THAT THE TOURS OF DUTY ARE RELATIVELY SHORT TOGETHER WITH THE ATTENDANT TURNOVER IN PERSONNEL, IT APPEARS UNREASONABLE TO EXPECT OR REQUIRE THAT THE EMPLOYEES PURCHASE AND TRANSPORT THIS EQUIPMENT TO THE STATIONS AT THEIR PERSONAL EXPENSE.

ALSO, IN CONNECTION WITH THE USE OF APPROPRIATED FUNDS BY THE CORPS OF ENGINEERS TO PURCHASE PING PONG PADDLES AND BALLS FOR USE ON BOARD A SEAGOING DREDGE, WE HELD IN B-61076, DATED FEBRUARY 25, 1947, THAT:

*** THE APPROPRIATION SOUGHT TO BE CHARGED HEREIN DOES NOT AUTHORIZE SPECIFICALLY THE PURCHASE OF RECREATIONAL EQUIPMENT FOR EMPLOYEES ENGAGED IN RIVER AND HARBOR WORK. HOWEVER, IN VIEW OF THE FACTS SET FORTH IN YOUR LETTER AND THE DETERMINATION BY THE CHIEF OF ENGINEERS THAT THE FURNISHING OF A WELL-EQUIPPED RECREATION ROOM FOR THE USE OF CREWS ON SEAGOING DREDGES, SUCH AS THOSE OPERATING UNDER THE JURISDICTION OF THE NEW YORK DISTRICT, IS NECESSARY IN ORDER "FOR THE ENGINEER DEPARTMENT AT LARGE TO COMPETE SUCCESSFULLY WITH COMMERCIAL VESSELS IN THE LABOR MARKET" AND TO MAINTAIN THE EFFICIENCY AND PRESERVE THE MORALE OF THE CREWS WORKING ON SUCH DREDGES, THIS OFFICE IS NOT REQUIRED TO OBJECT TO THE ADMINISTRATIVE DETERMINATION THAT THE OBJECTIVES OF THE PROPOSED EXPENDITURE REASONABLY MAY BE SAID TO BE, BY IMPLICATION, WITHIN THE PURVIEW OF THE APPROPRIATION FOR THE MAINTENANCE AND IMPROVEMENT OF RIVER AND HARBOR WORKS.

IN VIEW OF THE ABOVE-DISCUSSED DECISIONS AND THE UNUSUAL FACTUAL CIRCUMSTANCES INVOLVING THIS SHIP, IF IT IS ADMINISTRATIVELY DETERMINED THAT A TELEVISION SET IS ESSENTIAL FOR THE MOST ECONOMICAL AND EFFICIENT PERFORMANCE OF THE SHIP'S FUNCTIONS, WE WOULD NOT OBJECT TO THE PROPOSED EXPENDITURE IN THE INSTANT CASE.

IN VIEW OF OUR ANSWER TO THE FIRST QUESTION, WE NEED NOT CONSIDER THE SECOND QUESTION.