B-129149, SEP. 28, 1956

B-129149, SEP. 28, 1956

TO THE SECRETARY OF THE AIR FORCE:

YOUR LETTER OF AUGUST 31, 1956, REQUESTS OUR DECISION WHETHER A FACILITY KNOWN AS BOEING AIRPLANE COMPANY PLANCOR 1577, SEATTLE, WASHINGTON, MAY BE TRANSFERRED FROM THE RECONSTRUCTION FINANCE CORPORATION TO THE DEPARTMENT OF THE AIR FORCE, WITHOUT REIMBURSEMENT UNDER THE AUTHORITY OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 377, AS AMENDED BY THE ACT OF JULY 12, 1952, 66 STAT. 593.

YOU STATE THAT YOUR DEPARTMENT IS PREPARED TO PROVIDE THE FOLLOWING CERTIFICATIONS REQUIRED BY GSA REGULATION 2-IV-202.07 (B) TO JUSTIFY THE TRANSFER WITHOUT REIMBURSEMENT:

"/A) THAT THIS DEPARTMENT HAS A NEED FOR THE PROPERTY TO CARRY ON AN APPROVED PROGRAM;

"/B) THAT THE ACQUISITION OF THE PROPERTY CANNOT BE FINANCED FROM AVAILABLE FUNDS;

"/C) THAT ACQUISITION AND USE OF THE PROPERTY WOULD NOT BE CONTRARY TO THE INTENT OF CONGRESS WITH RESPECT TO SUCH ACQUISITION AND USE.'

THE CONTROL AND JURISDICTION OVER AND THE ACCOUNTABILITY FOR THE FACILITY WAS TRANSFERRED, PURSUANT TO THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, BY THE RFC TO THE DEPARTMENT OF THE AIR FORCE, BY LETTER AGREEMENT DATED JULY 3, 1952, SUBJECT TO THE FOLLOWING CONDITION:

"/2) YOUR DEPARTMENT SHALL REIMBURSE THIS CORPORATION IN AN AMOUNT EQUAL TO THE FAIR VALUE OF THE PROPERTY TRANSFERRED, AS DETERMINED BY THE ADMINISTRATOR OF GSA, IN ACCORDANCE WITH SAID PUBLIC LAW 152 (FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949), UNLESS THE CONGRESS OF THE UNITED STATES, PRIOR TO JULY 1, 1953, AUTHORIZES OR APPROVES SUCH TRANSFER WITHOUT REIMBURSEMENT.'

THE TRANSFER WAS ACCEPTED ON AUGUST 4, 1952, AND ON JUNE 1, 1953, THE ADMINISTRATOR OF GENERAL SERVICES PRESCRIBED A FAIR VALUE OF $215,000FOR THE FACILITY. THE DATE WITHIN WHICH REIMBURSEMENT WAS TO BE MADE HAS BEEN EXTENDED TO A DATE 60 DAYS AFTER THE DATE OF THIS DECISION.

THE LETTER AGREEMENT OF JULY 3, 1952 TRANSFERRED THE INTERESTS OF THE RFC IN THE PROPERTY "IN ACCORDANCE WITH THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS IMPLEMENTED BY PUBLIC BUILDINGS CIRCULAR NO. 1.' THE REFERRED-TO ACT AND CIRCULAR DIRECTED, AND PRESCRIBED PROCEDURES FOR THE TRANSFER OF EXCESS AND SURPLUS PROPERTY AND NO OTHER. MANIFESTLY, SINCE THE PROPERTY HAD BEEN REQUESTED FOR USE BY THE DEPARTMENT OF THE AIR FORCE, IT WAS NOT SURPLUS PROPERTY WHICH IS DEFINED IN SECTION 3 (G) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT AS "PROPERTY NOT REQUIRED FOR THE NEEDS AND RESPONSIBILITIES OF ALL FEDERAL AGENCIES.' ACCORDINGLY, AND CONSIDERING THE REPORTED CIRCUMSTANCES SURROUNDING THE TRANSFER, THE PROPERTY APPEARS, SO FAR AS THE RFC IS CONCERNED, TO HAVE BEEN EXCESS PROPERTY EVEN THOUGH THERE MAY NOT HAVE BEEN ANY FORMAL DECLARATION TO THE GSA OF ANY SUCH DETERMINATION HAVING BEEN MADE.

SECTION 202 (A) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 66 STAT. 593, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/A)IN ORDER TO MINIMIZE EXPENDITURES FOR PROPERTY, THE ADMINISTRATOR SHALL PRESCRIBE POLICIES AND METHODS TO PROMOTE THE MAXIMUM UTILIZATION OF EXCESS PROPERTY BY EXECUTIVE AGENCIES, AND HE SHALL PROVIDE FOR THE TRANSFER OF EXCESS PROPERTY AMONG FEDERAL AGENCIES AND TO THE ORGANIZATIONS SPECIFIED IN SECTION 109 (F). THE ADMINISTRATOR, WITH THE APPROVAL OF THE DIRECTOR OF THE BUREAU OF THE BUDGET, SHALL PRESCRIBE THE EXTENT OF REIMBURSEMENT FOR SUCH TRANSFERS OF EXCESS PROPERTY: PROVIDED, THAT REIMBURSEMENT SHALL BE REQUIRED OF THE FAIR VALUE, AS DETERMINED BY THE ADMINISTRATOR, OF ANY EXCESS PROPERTY TRANSFERRED WHENEVER NET PROCEEDS ARE REQUESTED PURSUANT TO SECTION 204 (B) OR WHENEVER EITHER THE TRANSFEROR OR THE TRANSFEREE AGENCY (OR THE ORGANIZATIONAL UNIT AFFECTED) IS SUBJECT TO THE GOVERNMENT CORPORATION CONTROL ACT (59 STAT. 597, 31 U.S.C. 841) * * *.'

AS STATED IN OUR DECISION OF DECEMBER 1, 1954, B-119819, TO THE ADMINISTRATOR OF GENERAL SERVICES, THE LEGISLATIVE HISTORY OF THE 1949 ACT, AS AMENDED, INDICATES THAT THE PROVISO REQUIRING REIMBURSEMENT OF THE FAIR VALUE OF EXCESS PROPERTY TRANSFERRED WHERE EITHER THE TRANSFEROR OR TRANSFEREE AGENCY IS SUBJECT TO THE GOVERNMENT CORPORATION CONTROL ACT WAS INSERTED TO MAINTAIN THE INTEGRITY OF THE CORPORATE ACCOUNTS; THAT IS, TO PREVENT THE IMPAIRMENT OF THE CAPITAL ASSETS OF A CORPORATION DISPOSING OF EXCESS PROPERTY OR THE UNJUST ENRICHMENT OF A CORPORATION RECEIVING SUCH EXCESS PROPERTY. HOWEVER, THE GOVERNMENT CORPORATIONS APPROPRIATIONS ACT, 1949, 62 STAT. 1183, 1187, CONTAINS A PROVISO AS FOLLOWS:

"* * * PROVIDED FURTHER, THAT THE SECRETARY OF THE TREASURY IS HEREBY AUTHORIZED AND DIRECTED TO CANCEL NOTES OF THE RECONSTRUCTION FINANCE CORPORATION IN THE AMOUNT OF $9,313,736,531, PLUS THE INTEREST ACCRUED THEREON SUBSEQUENT TO JUNE 30, 1947, THE FOREGOING STATED AMOUNT REPRESENTING UNRECOVERED COSTS TO THE CORPORATION AS OF JUNE 30, 1947, IN ITS NATIONAL DEFENSE, WAR, AND RECONVERSION ACTIVITIES, AND ANY AMOUNTS RECOVERED BY THE CORPORATION WITH RESPECT TO THESE ACTIVITIES SUBSEQUENT TO JUNE 30, 1947, SHALL, AFTER DEDUCTION OF RELATED EXPENSES, BE DEPOSITED IN THE TREASURY AS MISCELLANEOUS RECEIPTS: * * *"

THIS PROVISO INTENDED TO RELIEVE THE RECONSTRUCTION FINANCE CORPORATION OF THE COSTS OF ITS WARTIME ACTIVITIES AND IT INCLUDES THE COST OF THE FACILITY HERE IN QUESTION. THE ABOVE-QUOTED PORTION OF THE GOVERNMENT CORPORATIONS APPROPRIATION ACT, 1949, SPECIFICALLY PROVIDES THAT ANY AMOUNTS RECOVERED SUBSEQUENT TO JUNE 30, 1947, FROM THE ACTIVITIES STATED THEREIN SHALL BE DEPOSITED IN THE TREASURY AS MISCELLANEOUS RECEIPTS. THEREFORE, THE TRANSFER OF THE FACILITY TO THE DEPARTMENT OF THE ARMY WITHOUT REIMBURSEMENT WOULD NOT IMPAIR THE CAPITAL STRUCTURE OF THE RECONSTRUCTION FINANCE CORPORATION OR ITS SUCCESSOR LIQUIDATING AGENCY. ALSO, WHILE IT HAS BEEN HELD THAT AGENTS OF THE UNITED STATES HAVE NO AUTHORITY TO RELEASE OR MODIFY CONTRACTUAL RIGHTS WHICH HAVE ACCRUED TO THE UNITED STATES IN THE ABSENCE OF PAYMENT OF CONSIDERATION, SUCH RULE IS NOT NECESSARILY FOR APPLICATION HERE WHERE TWO AGENCIES OF THE UNITED STATES ARE INVOLVED. SO FAR AS WE CAN PERCEIVE, NO BENEFIT WOULD ACCRUE FROM FORCING THE DEPARTMENT OF THE AIR FORCE TO SEEK AN APPROPRIATION TO COMPLY WITH THE 1952 LETTER AGREEMENT WHERE IT APPEARS SUCH AMOUNT WILL IMMEDIATELY BE FOR DEPOSIT INTO THE TREASURY, UNDER THE QUOTED PROVISION OF THE GOVERNMENT CORPORATIONS APPROPRIATIONS ACT, 1949, AS A MISCELLANEOUS RECEIPT.

ACCORDINGLY, AND PROVIDED THAT THE ADMINISTRATOR OF GENERAL SERVICES, WITH THE APPROVAL OF THE DIRECTOR OF THE BUDGET, WHO IS AUTHORIZED UNDER SECTION 202 (A) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT TO PRESCRIBE THE EXTENT OF REIMBURSEMENTS FOR SUCH TRANSFERS OF EXCESS PROPERTY, DETERMINES SUCH TRANSFER SHOULD BE MADE WITHOUT REIMBURSEMENT, SUCH TRANSFER WITHOUT REIMBURSEMENT WOULD APPEAR TO BE AUTHORIZED.

IT IS NOTED THAT CERTAIN OF THE ENCLOSURES TO YOUR LETTERS INDICATE AN INTENTION TO CONSTRUCT ADDITIONAL FACILITIES ON THE LAND INVOLVED WHICH THE RECORD SHOWS WAS LEASED FEBRUARY 5, 1944 FOR A TERM OF FIVE YEARS WITH OPTIONS OF RENEWAL FOR THREE ADDITIONAL TERMS OF FIVE YEARS EACH. YOU MAY WISH TO CONSIDER IN THIS CONNECTION 6 COMP. DEC. 295, 15 COMP. GEN. 761, 20 ID. 927, AND 35 ID. 715.