B-138496, MAY 20, 1959, 38 COMP. GEN. 782

B-138496, MAY 20, 1959, 38 COMP. GEN. 782

REAL PROPERTY TRANSFERS BETWEEN GOVERNMENT AGENCIES - SPECIFIC STATUTORY AUTHORITY - APPROPRIATION AVAILABILITY THE TRANSFER OF REAL PROPERTY WHICH IS REPORTED AS EXCESS TO THE NEEDS OF ONE GOVERNMENT AGENCY TO ANOTHER GOVERNMENT AGENCY UNDER THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 MAY BE MADE WITHOUT REGARD TO WHETHER THE ACQUIRING AGENCY HAS SPECIFIC LAND AND PUBLIC BUILDING ACQUISITION AUTHORITY AS REQUIRED UNDER 41 U.S.C. 14 AND 40 U.S.C. 259, WHICH RESTRICTIVE STATUTES ARE APPLICABLE TO THE ACQUISITION OF NEW LAND AND BUILDINGS AND NOT TO LAND AND BUILDINGS ALREADY OWNED BY THE GOVERNMENT. THE COST OF REIMBURSING ANOTHER GOVERNMENT AGENCY FOR THE FAIR MARKET VALUE OF REAL PROPERTY TRANSFERRED UNDER THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 TO THE DEPARTMENT OF AGRICULTURE FOR USE OF THE AGRICULTURAL RESEARCH SERVICE MAY BE REGARDED AS A NECESSARY EXPENSE UNDER THE APPROPRIATION CONSTRUCTION RULE THAT AN APPROPRIATION, WHICH IS MADE FOR A PARTICULAR OBJECT, CONFERS AUTHORITY BY IMPLICATION TO INCUR NECESSARY EXPENSES TO THE PROPER EXECUTION OF THE OBJECT, AND, UPON AN ADMINISTRATIVE DETERMINATION THAT THE REAL PROPERTY TRANSFER IS NECESSARY FOR AGRICULTURAL RESEARCH, THE COST MAY BE CHARGED TO THE AGRICULTURAL RESEARCH SERVICE APPROPRIATION IN THE DEPARTMENT OF AGRICULTURE AND FARM CREDIT ADMINISTRATION APPROPRIATION ACT, 1959.

TO THE SECRETARY OF AGRICULTURE, MAY 20, 1959:

BY LETTER OF JANUARY 19, 1959, THE ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR DECISION ON A MATTER INVOLVING THE ACQUISITION OF 13.89 ACRES OF LAND AND A BUILDING THEREON, LOCATED AT BROWNSVILLE, TEXAS. THE ADMINISTRATIVE ASSISTANT SECRETARY STATED THAT THE PROPERTY IN QUESTION IS CURRENTLY BEING USED BY THE AGRICULTURAL RESEARCH SERVICE OF YOUR DEPARTMENT UNDER PERMIT FROM THE INTERNATIONAL BOUNDARY AND WATER COMMISSION, AND THAT SAID COMMISSION HAS REPORTED THE PROPERTY TO THE GENERAL SERVICES ADMINISTRATION UNDER THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 40 U.S.C. 471, AS EXCESS TO ITS NEEDS. IT IS FURTHER STATED THAT THE GENERAL SERVICES ADMINISTRATION HAS ESTABLISHED THE FAIR VALUE OF THE PROPERTY FOR TRANSFER PURPOSES AT $4,407.50. THE LETTER INDICATED THAT THE PROPERTY IS URGENTLY NEEDED BY YOUR DEPARTMENT IN CONNECTION WITH THE PINK BOLL WORM RESEARCH PRESENTLY BEING CARRIED ON AT THAT LOCATION, AND THAT THE $4,407.50 REQUIRED FOR REIMBURSEMENT ADMINISTRATIVELY COULD BE MADE AVAILABLE FROM THE AGRICULTURAL RESEARCH APPROPRIATION. HOWEVER, SINCE THAT APPROPRIATION DOES NOT SPECIFICALLY MAKE FUNDS AVAILABLE FOR THE ACQUISITION OF LAND, AND YOUR DEPARTMENT HAS NO SPECIFIC AUTHORITY TO ACQUIRE REAL PROPERTY FOR USE FOR THE PROGRAM INVOLVED, HAVING ONLY THE GENERAL LAND ACQUISITION AUTHORITY GRANTED BY 7 U.S.C. 428A (A), A DECISION IS REQUESTED AS TO WHETHER YOUR DEPARTMENT LEGALLY CAN ACQUIRE THE REAL PROPERTY IN QUESTION AND MAKE REIMBURSEMENT THEREFOR FROM THE APPROPRIATION CITED. A QUESTION ALSO IS RAISED AS TO THE APPLICABILITY OF 41 U.S.C. 14 AND 40 U.S.C. 259 TO THE TRANSACTION.

A SITUATION PRACTICALLY IDENTICAL WITH THE PRESENT ONE, EXCEPT THAT IT INVOLVED A TRANSFER OF REAL PROPERTY UNDER THE SURPLUS PROPERTY ACT OF 1944, 58 STAT. 765, RATHER THAN THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, WAS DISCUSSED IN OUR DECISION OF JANUARY 7, 1948, B-71849, TO THE SECRETARY OF THE TREASURY. THAT DECISION INVOLVED THE TRANSFER OF CERTAIN GOVERNMENT OWNED LAND UNDER THE CONTROL OF THE WAR ASSETS ADMINISTRATION AS SURPLUS PROPERTY TO THE BUREAU OF FEDERAL SUPPLY (WHICH HAD NO SPECIFIC AUTHORITY TO ACQUIRE LAND) UPON PAYMENT OF THE FAIR VALUE OF SAID LAND TO THE WAR ASSETS ADMINISTRATION UNDER THE PROVISIONS OF THE SURPLUS PROPERTY ACT OF 1944. IN THAT DECISION, WE STATED:

WHILE REALTY IS NOT EXPRESSLY MENTIONED IN SAID SECTION 12 (OF THE SURPLUS PROPERTY ACT OF 1944), UNDER THE TERMS OF SECTION 3 OF THE ACT THE WORD "PROPERTY" AS USED THEREIN IS DEFINED AS MEANING "ANY INTEREST, OWNED BY THE UNITED STATES OR ANY GOVERNMENT AGENCY, IN REAL OR PERSONAL PROPERTY," AND THE TERM "SURPLUS PROPERTY" AS USED THEREIN IS DEFINED AS MEANING "ANY PROPERTY WHICH HAS BEEN DETERMINED TO BE SURPLUS TO THE NEEDS AND RESPONSIBILITIES OF THE OWNING AGENCY.' IT IS APPARENT, THEREFORE, THAT WHEN READ IN CONJUNCTION WITH SECTION 3 OF THE SAID ACT THE TERMS OF SECTION 12 THEREOF PROPERLY SHOULD BE CONSTRUED AS COVERING THE DISPOSITION OF REAL PROPERTY AS WELL AS PERSONAL PROPERTY. ANY DOUBT THAT SUCH IS THE CASE WOULD APPEAR TO BE ENTIRELY REMOVED BY SECTION 23 OF THE ACT WHICH PROVIDES FOR DISPOSAL THROUGH OTHER CHANNELS OF " SURPLUS REAL PROPERTY WHICH IS NOT DISPOSED OF TO GOVERNMENT AGENCIES UNDER SECTION 12.'

AS STATED IN YOUR LETTER, NO EXPRESS AUTHORITY FOR THE ACQUISITION OF LAND TO CARRY OUT THE PURPOSES OF THE STRATEGIC AND CRITICAL MATERIALS STOCK PILING ACT IS CONTAINED IN THE SAID ACT OR IN THE FIRST SUPPLEMENTAL APPROPRIATION ACT. 1947. 60 STAT. 910, 916, MAKING THE APPROPRIATIONS FOR CARRYING OUT THOSE PROPOSED PURPOSES. HOWEVER, SINCE AS ABOVE INDICATED THE INTER-AGENCY TRANSFER HERE PROPOSED CLEARLY APPEARS TO BE AUTHORIZED UNDER THE SURPLUS PROPERTY ACT OF 1944, PROVIDED FUNDS PROPERLY MAY BE SAID TO BE AVAILABLE THEREFOR, IT SEEMS REASONABLE TO CONCLUDE THAT THE RESTRICTION PLACED UPON THE PURCHASE OF LAND ON BEHALF OF THE UNITED STATES BY SECTION 3736, REVISED STATUTES, HAS NO PROPER APPLICATION TO SUCH TRANSFER. SEE 40 OP. ATTY. GEN. NO. 483, SEPTEMBER 6, 1946.

IN VIEW OF THE FOREGOING, IF IT BE ADMINISTRATIVELY DETERMINED THAT THE TRANSFER OF THE LAND HERE IN QUESTION IS "NECESSARY FOR THE * * * STORAGE * * * OF STRATEGIC AND CRITICAL MATERIALS FOR NATIONAL DEFENSE PURPOSES," AS PROVIDED BY THE FIRST SUPPLEMENTAL APPROPRIATION ACT, 1947, SUPRA, IT WOULD APPEAR THAT THE COST THEREOF REASONABLY MAY BE REGARDED AS A PROPER CHARGE AGAINST THE APPROPRIATION ESTABLISHED BY THE SAID ACT.

WHAT WAS SAID IN THAT DECISION APPEARS TO BE EQUALLY FOR APPLICATION HERE. THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, SUPERSEDES THE SURPLUS PROPERTY ACT OF 1944 AND PROVIDES COMPLETE AND SELF-CONTAINED AUTHORITY AND PROCEDURE FOR THE TRANSFER OF EXCESS PROPERTY--- INCLUDING REAL PROPERTY--- BETWEEN THE VARIOUS GOVERNMENT AGENCIES. SINCE SECTION 3736, REVISED STATUTES, 41 U.S.C. 14, WAS HELD IN THE CITED DECISION OF JANUARY 7, 1948, TO BE INAPPLICABLE TO TRANSFERS OF SURPLUS REAL PROPERTY BETWEEN GOVERNMENT AGENCIES UNDER THE SURPLUS PROPERTY ACT OF 1944, SAID SECTION WOULD APPEAR TO BE EQUALLY INAPPLICABLE TO TRANSFERS OF EXCESS REAL PROPERTY BETWEEN GOVERNMENT AGENCIES UNDER THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED. LIKEWISE, THE PROVISIONS OF SECTION 3734, REVISED STATUTES, 40 U.S.C. 259, APPARENTLY WERE INTENDED TO APPLY TO THE ACQUISITION OF NEW LAND AND OF LAND ALREADY OWNED BY THE GOVERNMENT. SIMILARLY, THE PROVISIONS OF 7 U.S.C. 428A (A), AUTHORIZING YOUR DEPARTMENT TO ACQUIRE LAND NEEDED TO CARRY OUT ITS AUTHORIZED WORK ONLY IF PROVISION THEREFOR IS MADE IN THE APPLICABLE APPROPRIATION ACT OR OTHER LAW, SEEM TO BE DIRECTED AGAINST THE ACQUISITION OF LAND NOT ALREADY OWNED BY THE GOVERNMENT AND WOULD NOT APPEAR TO BE FOR APPLICATION HERE. SINCE THE CITED RESTRICTIVE STATUTES REQUIRING SPECIFIC AUTHORITY OR A SPECIFIC APPROPRIATION FOR THE ACQUISITION OF LAND ARE APPLICABLE ONLY TO THE ACQUISITION OF NEW LAND AND NOT TO TRANSFERS OF EXCESS GOVERNMENT-OWNED REAL PROPERTY BETWEEN AGENCIES UNDER THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, SUCH TRANSFERS MAY BE MADE IN ACCORDANCE WITH THE PROVISIONS OF THE LATTER ACT REGARDLESS OF WHETHER THE ACQUIRING AGENCY HAS SPECIFIC LAND ACQUISITION AUTHORITY.

IN VIEW OF THE INAPPLICABILITY TO THE PRESENT SITUATION OF THE STATUTES REQUIRING SPECIFIC APPROPRIATION PROVISION FOR THE ACQUISITION OF LAND, THE QUESTION OF THE AVAILABILITY OF THE AGRICULTURAL RESEARCH SERVICE APPROPRIATION FOR REIMBURSEMENT OF THE FAIR VALUE OF THE PROPERTY IN QUESTION IS FOR DETERMINATION IN ACCORDANCE WITH THE USUAL RULES OF APPROPRIATION LAW CONSTRUCTION. IT IS A SETTLED RULE THAT, WHERE AN APPROPRIATION IS MADE FOR A PARTICULAR OBJECT, BY IMPLICATION IT CONFERS AUTHORITY TO INCUR EXPENSES WHICH ARE NECESSARY OR INCIDENT TO THE PROPER EXECUTION OF THE OBJECT UNLESS THERE IS ANOTHER APPROPRIATION WHICH MAKES MORE SPECIFIC PROVISION FOR SUCH EXPENDITURES, OR UNLESS THEY ARE PROHIBITED BY LAW. SEE 29 COMP. GEN. 419. HENCE, IF IT IS ADMINISTRATIVELY DETERMINED THAT THE TRANSFER OF THE REAL PROPERTY HERE IN QUESTION IS "NECESSARY TO PERFORM AGRICULTURAL RESEARCH * * * TO CONTROL AND ERADICATE PESTS * * * " AS PROVIDED BY TITLE I OF THE DEPARTMENT OF AGRICULTURE AND FARM CREDIT ADMINISTRATION APPROPRIATION ACT, 1959, UNDER THE HEADING " AGRICULTURAL RESEARCH SERVICE" ( PUBLIC LAW 85-459, 72 STAT. 188, 5 U.S.C. 568A), IT WOULD APPEAR THAT THE FAIR VALUE THEREOF AS ESTABLISHED BY THE GENERAL SERVICES ADMINISTRATION PURSUANT TO THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, REASONABLY MAY BE REGARDED AS A PROPER CHARGE AGAINST SAID APPROPRIATION.