B-167874, NOVEMBER 13, 1969, 49 COMP. GEN. 305

B-167874, NOVEMBER 13, 1969, 49 COMP. GEN. 305

VETERANS ADMINISTRATION -- CONTRACTS -- TRAINING -- INTERAGENCY PARTICIPATION -- AUTHORITY THE FINANCING OF A CONTRACT BY THE VETERANS ADMINISTRATION (VA) FOR A HOSPITAL ADMINISTRATORS INTERAGENCY INSTITUTE WITH A NON-GOVERNMENTAL FACILITY IN THE DISTRICT OF COLUMBIA, THE COST TO BE SHARED BY OTHER FEDERAL AGENCY MEMBERS OF THE INTERAGENCY COMMITTEE, IS PRECLUDED BY SECTION 307 OF PUBLIC LAW 90-550, WHICH PROHIBITS THE USE OF THE MONIES APPROPRIATED IN THE ACT TO FINANCE INTERDEPARTMENTAL BOARDS, COMMISSIONS, COUNCILS, COMMITTEES, OR SIMILAR GROUP ACTIVITIES THAT OTHERWISE WOULD BE FINANCED UNDER 31 U.S.C. 691, NOR MAY THE AUTHORITY IN SECTION 601 OF THE ECONOMY ACT BE USED TO PROVIDE THE TRAINING, AS SOME OF THE AGENCIES OF THE COMMITTEE ARE NOT ENUMERATED IN THE ACT. HOWEVER, AN INTERAGENCY ARRANGEMENT UNDER THE TRAINING ACT (5 U.S.C. 4101-4118) THAT WOULD PROVIDE MORE EFFECTIVE OR ECONOMICAL TRAINING WOULD WARRANT VA CONTRACTING FOR THE NONGOVERNMENTAL TRAINING FACILITIES. DISTRICT OF COLUMBIA -- LEASES, CONCESSIONS, RENTAL AGREEMENTS, ETC. -- PRIOR APPROPRIATION NECESSITY THE VETERANS ADMINISTRATION (VA) IN CONTRACTING FOR HOSPITAL ADMINISTRATORS INSTITUTES IN NONGOVERNMENTAL FACILITIES LOCATED IN THE DISTRICT OF COLUMBIA (D.C.) MAY NOT HAVE THE CONTRACTOR PROCURE ROOM ACCOMMODATIONS IN D.C. FOR THE LIVE-IN-PARTICIPANTS ATTENDING THE INSTITUTES, 40 U.S.C. 34 RESTRICTING THE RENTAL OF SPACE IN D.C. FOR THE PURPOSES OF THE GOVERNMENT, IN THE ABSENCE OF AN EXPRESS APPROPRIATION. THE VA APPROPRIATIONS DO NOT PROVIDE FOR THE RENTAL OF SPACE IN D.C. AND VA MAY NOT AVOID THE LEASING RESTRICTION BY THE INCLUSION OF A COST REIMBURSEMENT TYPE PROVISION IN THE CONTRACT. HOWEVER, HOTEL SERVICES AND FACILITIES OUTSIDE D.C. MAY BE PROCURED AS NECESSARY TRAINING EXPENSES AND FURNISHED IN KIND TO TRAINEES IN A TRAVEL STATUS, AND AN APPROPRIATE REDUCTION MADE IN THE PER DIEM PAYABLE. VETERANS ADMINISTRATION -- CONTRACTS -- LEASES -- SPACE IN AND OUTSIDE DISTRICT OF COLUMBIA INCIDENT TO THE VETERANS ADMINISTRATION CONTRACT FOR INTERAGENCY HOSPITAL ADMINISTRATORS INSTITUTES IN NONGOVERNMENTAL FACILITIES IN THE DISTRICT OF COLUMBIA, ROOM ACCOMMODATIONS OTHER THAN IN THE DISTRICT MAY BE PROCURED AND FURNISHED ON A REIMBURSABLE BASIS TO OFFICERS OF THE MILITARY DEPARTMENTS WHOSE OFFICIALS DUTY STATION IS THE WASHINGTON METROPOLITAN AREA, AS THE APPROPRIATIONS CHARGEABLE WITH THE EXPENDITURES PROVIDE FUNDS FOR THE TRAINING EXPENSES OF MEMBERS OF THE MILITARY SERVICES AND COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, NOVEMBER 13, 1969:

WE REFER TO YOUR LETTER OF SEPTEMBER 9, 1969, REQUESTING OUR DECISION UPON CERTAIN QUESTIONS RELATING TO A CONTRACT AND A PROPOSED AMENDMENT THERETO, BETWEEN THE VETERANS ADMINISTRATION (VA) AND FREDERICK H. GIBBS, PROFESSOR OF HOSPITAL ADMINISTRATION, GEORGE WASHINGTON UNIVERSITY. UNDER THE CONTRACT PROFESSOR GIBBS ACTS AS THE DIRECTOR, INTERAGENCY INSTITUTES FOR FEDERAL HOSPITAL ADMINISTRATORS. YOU SAY THAT THE COST OF THE CONTRACT IS SHARED BY OTHER FEDERAL AGENCY MEMBERS OF THE INTERAGENCY COMMITTEE, I.E., DEPARTMENTS OF THE ARMY, AIR FORCE, NAVY, AND THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE.

YOUR FIRST QUESTION IS WHETHER THE PROPOSED INTERAGENCY ARRANGEMENT IS PRECLUDED BY SECTION 307 OF PUBLIC LAW 90-550, 82 STAT. 956, WHICH PROHIBITS THE USE OF MONIES APPROPRIATED BY THAT ACT FOR FINANCING INTERDEPARTMENTAL BOARDS, COMMISSIONS, COUNCILS, COMMITTEES OR SIMILAR GROUPS UNDER SECTION 214 OF THE INTERDEPARTMENTAL OFFICES APPROPRIATION ACT OF 1946, 31 U.S.C. 691, WHICH DO NOT HAVE PRIOR SPECIFIC CONGRESSIONAL APPROVAL FOR SUCH METHOD OF FINANCIAL SUPPORT.

SECTION 9 OF THE ACT OF MARCH 4, 1909, 35 STAT. 1027, 31 U.S.C. 673, PROHIBITS THE USE OF PUBLIC FUNDS TO PAY THE COMPENSATION OR EXPENSES OF ANY COMMISSION, COUNCIL, BOARD OR OTHER SIMILAR BODY, OR ANY MEMBERS THEREOF, OR FOR EXPENSES IN CONNECTION WITH ANY WORK OR THE RESULTS OF ANY WORK OR ACTION OF SUCH GROUPS, UNLESS THE CREATION OF THE SAME WAS AUTHORIZED BY LAW.

HOWEVER, SUBSEQUENTLY THERE WAS ENACTED INTO LAW SECTION 214 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1946, 59 STAT. 134, 31 U.S.C. 691, WHICH READS AS FOLLOWS--QUOTING FROM THE CODE:

APPROPRIATIONS OF THE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS OF THE GOVERNMENT SHALL BE AVAILABLE FOR THE EXPENSES OF COMMITTEES, BOARDS, OR OTHER INTERAGENCY GROUPS ENGAGED IN AUTHORIZED ACTIVITIES OF COMMON INTEREST TO SUCH DEPARTMENTS AND ESTABLISHMENTS AND COMPOSED IN WHOLE OR IN PART OF REPRESENTATIVES THEREOF WHO RECEIVE NO ADDITIONAL COMPENSATION BY VIRTUE OF SUCH MEMBERSHIP: PROVIDED, THAT EMPLOYEES OF SUCH DEPARTMENTS AND ESTABLISHMENTS RENDERING SERVICE FOR SUCH COMMITTEES, BOARDS, OR OTHER GROUPS, OTHER THAN AS REPRESENTATIVES, SHALL RECEIVE NO ADDITIONAL COMPENSATION BY VIRTUE OF SUCH SERVICE.

THIS LETTER PROVISION OF LAW, IN EFFECT, EXCEPTS FROM THE PROVISIONS OF 31 U.S.C. 673 EXECUTIVE DEPARTMENT AND INDEPENDENT ESTABLISHMENT COMMITTEES, BOARDS, OR OTHER INTERAGENCY GROUPS OF THE TYPE SPECIFIED THEREIN THAT ARE ENGAGED IN AUTHORIZED ACTIVITIES OF COMMON INTEREST TO SUCH DEPARTMENTS AND ESTABLISHMENTS. THUS, 31 U.S.C. 691 WOULD APPEAR TO PROVIDE THE NECESSARY AUTHORITY FOR THE OPERATION OF THE INTERAGENCY COMMITTEE INVOLVED HERE.

HOWEVER, THE GENERAL EFFECT OF SECTION 307 OF PUBLIC LAW 90-550-- SECTION 410, H.R. 12307, 91ST CONGRESS, WHICH WOULD PROVIDE APPROPRIATIONS FOR INDEPENDENT ESTABLISHMENTS, INCLUDING VA, FOR THE FISCAL YEAR 1970 INCLUDES A SIMILAR PROVISION--IS TO PRECLUDE WITH CERTAIN EXCEPTIONS, NOT HERE PERTINENT, THE FINANCING FROM FUNDS APPROPRIATED BY PUBLIC LAW 90-550 OF "INTERDEPARTMENTAL BOARDS, COMMISSIONS, COUNCILS, COMMITTEES, OR SIMILAR GROUPS" ENGAGED IN ANY OF THE "AUTHORIZED ACTIVITIES" WHICH OTHERWISE MIGHT HAVE BEEN FINANCED BY SUCH INTERAGENCY GROUPS UNDER 31 U.S.C. 691 UNLESS SPECIFIC CONGRESSIONAL AUTHORIZATION HAS BEEN GIVEN FOR SUCH METHOD OF FINANCING. ACCORDINGLY, IT IS OUR VIEW THAT NONE OF YOUR ADMINISTRATION'S FUNDS MAY BE USED TO FINANCE THE CONTRACT IN QUESTION IN ITS PRESENT FORM.

CONCERNING THE USE OF THE AUTHORITY CONTAINED IN SECTION 601 OF THE ECONOMY ACT (31 U.S.C. 686) AS A BASIS FOR THE PROPOSED ARRANGEMENT, WE NOTE THAT THAT SECTION PERMITS ONLY CERTAIN ENUMERATED AGENCIES TO PLACE ORDERS WITH OTHER AGENCIES FOR SERVICES WHICH THE LATTER AGENCIES MAY BE IN A POSITION TO PROCURE BY CONTRACT. SINCE THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE IS NOT ONE OF THE ENUMERATED AGENCIES, VA MAY NOT OBTAIN ANY SERVICES BY CONTRACT FOR THAT DEPARTMENT UNDER THE AUTHORITY OF 31 U.S.C. 686.

WE HAVE EXAMINED THE PROVISIONS OF TITLE 5, U.S.C. RELATING TO THE TRAINING OF GOVERNMENT EMPLOYEES, 5 U.S.C. 4101-4118, AND WHILE THAT STATUTE EXPRESSLY PROVIDES FOR EXTENSION OF ONE AGENCY'S GOVERNMENT FACILITY TRAINING PROGRAMS TO EMPLOYEES OF OTHER GOVERNMENT AGENCIES (5 U.S.C. 4101), NOWHERE IN THAT STATUTE HAVE WE FOUND ANY LANGUAGE EXPRESSLY AUTHORIZING ONE AGENCY TO CONTRACT FOR NON-GOVERNMENT FACILITY TRAINING TO BE UTILIZED BY OTHER GOVERNMENT AGENCIES.

ON THE OTHER HAND, ONE OF THE BASIC POLICIES AND OBJECTIVES OF THE TRAINING STATUTE IS TO OBTAIN MAXIMUM TRAINING BENEFITS FROM EACH TRAINING DOLLAR SPENT. IF THE ARRANGEMENT YOU PROPOSE UNDER THE AUTHORITY OF THE TRAINING ACT IS, IN FACT, TO THE FINANCIAL INTEREST OF THE UNITED STATES BY PROVIDING MORE EFFECTIVE OR ECONOMICAL TRAINING FOR THE DOLLARS EXPENDED, THEN IT IS OUR OPINION THAT SUCH ARRANGEMENT NOT ONLY IS IN ACCORDANCE WITH GOOD BUSINESS PRACTICE BUT WOULD BE CONSISTENT WITH THE PURPOSES AND THE SPIRIT OF THE TRAINING STATUTE. THUS, OUR OFFICE WOULD INTERPOSE NO OBJECTION IF THE FINANCIAL INTEREST OF THE UNITED STATES WARRANTS YOUR ADMINISTRATION'S CONTRACTING FOR NON GOVERNMENT FACILITY TRAINING WHICH COULD BE UTILIZED NOT ONLY BY VA BUT OTHER GOVERNMENT AGENCIES.

WE UNDERSTAND THAT UNDER THE PROPOSED TERMS OF THE CONTRACT THE CONTRACTOR WOULD PROCURE ROOM ACCOMMODATIONS FOR THE ACTUAL NUMBER OF LIVE -IN PARTICIPANTS ATTENDING EACH INSTITUTE AND THAT VA WOULD REIMBURSE THE CONTRACTOR THE ACTUAL EXPENSES INCURRED BY HIM IN PROCURING SUCH ACCOMMODATIONS. 40 U.S.C. 34 IS A RESTRICTION ON THE RENTAL OF SPACE IN THE DISTRICT OF COLUMBIA TO BE USED FOR THE PURPOSES OF THE GOVERNMENT IN THE ABSENCE OF AN EXPRESS APPROPRIATION THEREFOR. SUCH RESTRICTION IS COMPREHENSIVE, APPLYING TO ALL USES FOR SUCH PURPOSES WHETHER TEMPORARY OR PERMANENT. SEE 35 COMP. GEN. 314 (1955). THUS, VA WOULD NOT BE PERMITTED TO USE ITS APPROPRIATIONS TO PAY THE LESSOR OF SUCH SPACE. IT HAS BEEN HELD THAT AN AGENCY MAY NOT AVOID A STATUTORY RESTRICTION BY CONTRACTING UNDER A COST REIMBURSEMENT TYPE CONTRACT FOR THE PROCURING OF A SERVICE OR FACILITY WHICH IT COULD NOT PROCURE DIRECTLY. SEE 43 COMP. GEN. 697 (1964). THE PRINCIPLE IN THAT DECISION IS EQUALLY FOR APPLICATION HERE. THUS, WE HOLD THAT YOU MAY NOT BY A COST REIMBURSEMENT TYPE OF PROVISION IN A CONTRACT PROCURE SPACE IN THE DISTRICT OF COLUMBIA WHICH YOU COULD NOT DO ON A DIRECT LEASING ARRANGEMENT COVERING THE PREMISES.

CONCERNING THE PROCURING OF HOTEL SERVICES AND FACILITIES AND FURNISHING THEM IN KIND TO PARTICIPANT TRAINEES WHO ARE IN A TRAVEL STATUS, WE SEE NO LEGAL OBJECTION TO SUCH PROCEDURE PROVIDED THE ACCOMMODATIONS ARE NOT SITUATED IN THE DISTRICT OF COLUMBIA AND THAT THE PROCEDURE IS ADMINISTRATIVELY DETERMINED TO BE AN APPROPRIATE MEANS OF INCURRING NECESSARY TRAINING EXPENSES. WE UNDERSTAND THAT AN APPROPRIATE REDUCTION IN THE PER DIEM RATE PAYABLE TO THE EMPLOYEE WOULD BE MADE IN SUCH CASES.

YOUR FINAL QUESTION CONCERNS THE PROCURING AND FURNISHING AS A NECESSARY TRAINING EXPENSE ROOM ACCOMMODATIONS TO OFFICERS OF THE MILITARY DEPARTMENTS WHOSE OFFICIAL DUTY STATION IS IN THE WASHINGTON METROPOLITAN AREA. WHILE THE PROVISIONS OF CHAPTER 41 OF TITLE 5, U.S.C. DO NOT APPLY TO AN "INDIVIDUAL *** WHO IS A MEMBER OF A UNIFORMED SERVICE DURING A PERIOD IN WHICH HE IS ENTITLED TO PAY UNDER SECTION 204 OF TITLE 37" WE NOTE THAT BY VIRTUE OF APPROPRIATION PROVISIONS APPEARING ANNUALLY IN DEPARTMENT OF DEFENSE APPROPRIATION ACTS UNDER THE HEADINGS OPERATION AND MAINTENANCE, ARMY; OPERATION AND MAINTENANCE, NAVY; AND OPERATION AND MAINTENANCE, AIR FORCE, FUNDS ARE MADE AVAILABLE FOR CERTAIN TRAINING EXPENSES OF MEMBERS OF THE MILITARY SERVICES. SEE FOR EXAMPLE PUBLIC LAW 90-580, 82 STAT. 1122. SEE ALSO THE PROVISIONS CONTAINED IN 10 U.S.C. 4301(A) AND 9301(A) RELATING TO MEMBERS OF THE ARMY AND AIR FORCE, RESPECTIVELY. SIMILARLY WITH RESPECT TO COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, SEE 42 U.S.C. 218A. IN VIEW OF SUCH AUTHORITIES THE PROCUREMENT OF AND THE FURNISHING OF ROOMS TO MILITARY PERSONNEL-- PROVIDED IT IS NOT SPACE RENTED IN THE DISTRICT OF COLUMBIA--WOULD BE AUTHORIZED IF NECESSARY FOR FULL PARTICIPATION IN THE TRAINING AND REIMBURSEMENT THEREFOR FROM AVAILABLE MILITARY APPROPRIATIONS WOULD BE PROPER.