B-140761, OCT. 1, 1959

B-140761, OCT. 1, 1959

TO THE HONORABLE NORMAN P. MASON, ADMINISTRATOR, HOUSING AND HOME FINANCE AGENCY:

BY LETTER OF SEPTEMBER 15, 1959, OUR ADVICE HAS BEEN REQUESTED AS TO THE PROPRIETY OF A PROCEDURE PROPOSED WITH RESPECT TO THE DISPOSAL OF PROPERTY UNDER THE ATOMIC ENERGY COMMISSION ACT OF 1955, 69 STAT. 471, AS AMENDED, 42 U.S.C. 2301 ET SEQ., IN SITUATIONS WHERE THE PROPERTY HAS BEEN CLASSIFIED FOR SALE BY THE ATOMIC ENERGY COMMISSION AND ANY EXISTING PRIORITY RIGHTS HAVE EXPIRED.

PURSUANT TO SECTION 52 OF THE ACT, THE COMMISSION IS AUTHORIZED TO DISPOSE OF ANY REAL PROPERTY AT DESIGNATED COMMUNITIES AND IS REQUIRED TO OFFER FOR DISPOSAL REAL PROPERTY WITHIN SUCH COMMUNITIES WITH CERTAIN DESIGNATED EXCEPTIONS NOT HERE MATERIAL. SUBSECTION 52C PROVIDES:

"C. SUCH PROPERTY SHALL BE DISPOSED OF ON SUCH TERMS AND CONDITIONS, CONSISTENT WITH THIS CHAPTER, AS THE COMMISSION SHALL PRESCRIBE IN THE NATIONAL INTEREST, AND WITHOUT REGARD TO ANY PREFERENCES OR PRIORITIES WHATEVER EXCEPT THOSE PROVIDED FOR PURSUANT TO THIS ACT. TRANSFERS BY THE COMMISSION OF SUCH PROPERTY SHALL NOT IMPAIR RIGHTS UNDER EXISTING LEASES AND COVENANTS, INCLUDING ANY PURCHASE RIGHTS THEREIN CONFERRED.'

SECTION 52 OF THE ACT PROVIDES IN PART, WITH RESPECT TO PROCEDURES TO BE USED IN THE DISPOSITION OF THE TYPE OF PROPERTY IN QUESTION:

"B. ANY PROPERTY (OTHER THAN CHURCH PROPERTY) CLASSIFIED FOR SALE UNDER SECTION 41 AND OFFERED FOR SALE UNDER SECTION 52, AS TO WHICH NO PRIORITY RIGHT HAS BEEN CONFERRED, OR AS TO WHICH ALL PRIORITY RIGHTS HAVE EXPIRED, SHALL BE ADVERTISED FOR SALE TO THE HIGHEST BIDDER, SUBJECT TO THE RIGHT OF THE COMMISSION TO REJECT ANY OR ALL BIDS, AND ALSO SUBJECT TO THE RIGHT OF AN OCCUPANT OF A GOVERNMENT-OWNED SINGLE FAMILY OR DUPLEX HOUSE TO BUY SUCH HOUSE BY PAYING AN AMOUNT EQUAL TO THE HIGHEST BID. NO BID SHALL BE ACCEPTED WHICH IS BELOW THE APPRAISED VALUE OR, IN THE CASE OF GOVERNMENT- OWNED SINGLE AND DUPLEX HOUSES IS BELOW 85 PERCENTUM OF THE APPRAISED VALUE.

"C. AS TO ANY PROPERTY WHICH HAS NOT BEEN SOLD UNDER SUBSECTION 53B. WITHIN ONE YEAR AFTER THE FIRST ADVERTISEMENT FOR SALE UNDER SUBSECTION 53B. THE COMMISSION MAY MAKE SUCH DISPOSITION, ON SUCH TERMS AND CONDITIONS, AS IT MAY DEEM APPROPRIATE, BUT THE COMMISSION SHALL GIVE AN OCCUPANT OF A GOVERNMENT-OWNED SINGLE FAMILY OR DUPLEX HOUSE SUCH FURTHER OPPORTUNITY TO PURCHASE SUCH HOUSE AS SHALL BE FAIR AND EQUITABLE.'

PURSUANT TO SECTION 101 OF THE ACT THE AUTHORITY TO SELL SUCH PROPERTIES HAS BEEN TRANSFERRED BY THE PRESIDENT FROM THE COMMISSION TO THE ADMINISTRATOR, HOUSING AND HOME FINANCE AGENCY, UNDER EXECUTIVE ORDER NO. 10657, FEBRUARY 14, 1956, AS AMENDED BY EXECUTIVE ORDER NO. 10734, OCTOBER 17, 1957.

WE UNDERSTAND THAT UNDER THE PRESENT PROCEDURE AN INVITATION FOR BIDS IS ISSUED CONTAINING THE CUSTOMARY BID-CLOSING DATE BEYOND WHICH NO BIDS MAY BE CONSIDERED FOR AWARD. IF NO ACCEPTABLE BID IS RECEIVED WITHIN THE DEADLINE THE PROPERTY MUST BE READVERTISED FOR SALE WITH ALL OF THE DELAY OF ISSUING THE INVITATION AND THE USUAL 30 OR 45 DAY PERIOD FOR THE SUBMISSIONS OF BIDS REPEATED. YOU POINT OUT THAT THIS PROCEDURE HAS RESULTED IN THE ISSUANCE OF TWO OR MORE INVITATIONS ON THE SAME PROPERTY WITHOUT RECEIPT OF ANY ACCEPTABLE BID. IN ORDER TO PROVIDE AN ADDITIONAL MEASURE OF FLEXIBILITY IN THE PROCEDURE, WHICH YOUR EXPERIENCE INDICATES MAY BE REQUIRED IN ORDER TO CARRY OUT THE CONGRESSIONAL MANDATE TO DISPOSE OF THE PROPERTY EXPEDITIOUSLY, YOU PROPOSE TO INSERT THE FOLLOWING PROVISION IN FUTURE INVITATIONS:

"IF AN ACCEPTABLE BID IS NOT RECEIVED ON OR BEFORE THE RETURN DATE, THE HOUSING ADMINISTRATOR WITHOUT FURTHER NOTICE MAY THEREAFTER ACCEPT THE FIRST BID MEETING THE SPECIFIED REQUIREMENTS, OR WITHDRAW THE OFFER.'

IT IS UNDERSTOOD THAT NO BID WHICH IS BELOW THE APPRAISED VALUE WOULD BE ACCEPTED WITHIN ONE YEAR AFTER THE PROPERTY IS FIRST ADVERTISED FOR SALE.

THE PROPOSED LANGUAGE IS TOO BRIEFLY PRESENTED TO PERMIT COMMENT THEREON WITHOUT MORE INFORMATION WITH RESPECT TO THE CONTEXT WITHIN WHICH IT WOULD APPEAR. IT IS OUR UNDERSTANDING, HOWEVER, THAT THE LANGUAGE OF THE INVITATION WOULD BE SUCH AS TO ADVISE BIDDERS THAT IF NO BID ACCEPTABLE UNDER THE TERMS OF THE INVITATION IS RECEIVED WITHIN THE PERIOD PRESCRIBED FOR THE SUBMISSION OF BIDS BY THE INVITATION, A BID SUBMITTED AFTER SUCH PERIOD HAS EXPIRED MAY BE ACCEPTED IF SUCH ACCEPTANCE IS DEEMED IN THE NATIONAL INTEREST PROVIDED IT MEETS ALL OF THE OTHER REQUIREMENTS OF THE INVITATION.

AS NOTED IN YOUR LETTER THE POLICY OF THE CONGRESS EXPRESSED IN THE LEGISLATION AND IN ITS HISTORY IS THAT THE PROPERTIES SHOULD BE DISPOSED OF IN AN EXPEDITIOUS MANNER CONSISTENT WITH THE BEST INTEREST OF THE UNITED STATES. IT HAS BEEN CONSISTENTLY HELD THAT UNDER SECTION 3709 OF THE REVISED STATUTES AND SIMILAR LEGISLATION GOVERNING PUBLIC PROCUREMENT THE PROCEDURES NORMALLY FOLLOWED IN FORMAL ADVERTISING MAY BE DISPENSED WITH IF THEIR EMPLOYMENT WOULD SERVE NO USEFUL PURPOSE, AS WHERE ADVERTISING HAS FAILED TO DEVELOP COMPETITION WITH RESPECT TO THE PROPOSED TRANSACTION. IN VIEW THEREOF, THERE APPEARS TO BE NO LEGAL OBJECTION TO THE PROPOSAL IN ACCORDANCE WITH OUR UNDERSTANDING STATED ABOVE SO LONG AS THE RIGHTS OF OCCUPANTS OR OTHER LESSEES PROVIDED UNDER THE ACT OR BY LEASE ARE PROTECTED. SEE B-137341, OCTOBER 23, 1958.