B-86372, JUNE 17, 1949, 28 COMP. GEN. 720

B-86372, JUNE 17, 1949, 28 COMP. GEN. 720

VEHICLES - PASSENGER-CARRYING - PURCHASE OF HEATERS HEATERS FOR PASSENGER MOTOR VEHICLES ARE TO BE REGARDED AS PART OF THE EQUIPMENT NECESSARY FOR THE OPERATION OF A VEHICLE AND, AS SUCH, ARE WITHIN THE APPLICABLE PURCHASE PRICE LIMITATION PROVIDED BY SECTION 5 (C) (1) OF THE ACT OF JULY 16, 1914, AS ADDED BY SECTION 16 (A) OF THE ACT OF AUGUST 2, 1946, REQUIRING THAT THE PURCHASE OF ANY PASSENGER MOTOR VEHICLE BE AT A COST "COMPLETELY EQUIPPED FOR OPERATION" NOT IN EXCESS OF THAT SPECIFIED BY LAW; HOWEVER, WHERE VEHICLES PURCHASED IN GOOD FAITH FOR USE IN WARM CLIMATES ARE TRANSFERRED TO COLD CLIMATES AFTER BONA FIDE OPERATION UNDER WARM CLIMATE CONDITIONS, HEATERS MAY BE PURCHASED WITHOUT A SHOWING OF COMPLIANCE WITH THE THEN-EXISTING PRICE LIMITATION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE ARMY, JUNE 17, 1949:

REFERENCE IS MADE TO YOUR LETTER OF MAY 12, 1949, DESCRIBING WHAT ARE STATED TO BE THE ADMINISTRATIVE DIFFICULTIES INVOLVED IN CONNECTION WITH THE PROCUREMENT OF HEATERS FOR INSTALLATION IN PASSENGER MOTOR VEHICLES AND REQUESTING RECONSIDERATION OF VARIOUS DECISIONS OF THIS OFFICE WHICH HOLD THAT HEATERS MUST BE INCLUDED IN THE PRICE LIMITATION RESTRICTION FORMERLY CARRIED IN CERTAIN ANNUAL APPROPRIATION ACTS. IT IS STATED THAT SUCH EARLIER DECISIONS--- 17 COMP. GEN. 640; 18 ID. 120; AND 19 ID. 988--- ARE STILL PERTINENT IN THAT THE PREVIOUS RESTRICTIONS FORMERLY CARRIED IN THE ANNUAL APPROPRIATION ACTS HAVE BEEN INCORPORATED INTO PERMANENT LAW BY SECTION 5 (C) (1) OF THE ACT OF JULY 16, 1914, AS ADDED BY SECTION 16 (A) OF THE ACT OF AUGUST 2, 1946, 60 STAT. 810, WHICH PROVIDES AS FOLLOWS:

(C) UNLESS OTHERWISE SPECIFICALLY PROVIDED, NO APPROPRIATION AVAILABLE FOR ANY DEPARTMENT SHALL BE EXPENDED---

(1) TO PURCHASE ANY PASSENGER MOTOR VEHICLE (EXCLUSIVE OF BUSSES, AMBULANCES, AND STATION WAGONS), AT A COST, COMPLETELY EQUIPPED FOR OPERATION, AND INCLUDING THE VALUE OF ANY VEHICLE EXCHANGED, IN EXCESS OF THE MAXIMUM PRICE THEREFOR, IF ANY, ESTABLISHED PURSUANT TO LAW BY A GOVERNMENT AGENCY AND IN NO EVENT MORE THAN SUCH AMOUNT AS MAY BE SPECIFIED IN AN APPROPRIATION OR OTHER ACT, WHICH SHALL BE IN ADDITION TO THE AMOUNT REQUIRED FOR TRANSPORTATION * * *.

FOLLOWING A SUMMARY OF SEVERAL EARLIER DECISIONS IN THE MATTER, IT WAS STATED IN 19 COMP. GEN. 988 THAT THE PURCHASE PRICE LIMITATION IS APPLICABLE TO THE COST OF ALL AUTOMOBILE ACCESSORIES REQUIRED FOR THE COMFORT AND CONVENIENCE OF THE PASSENGERS AND THE EFFICIENT OPERATION OF THE VEHICLE, PROVIDED SUCH ACCESSORIES, WHEN IN USE, ARE SUCH AS ORDINARILY ARE PERMANENTLY ATTACHED TO, AND BECOME A PART OF, THE VEHICLE. IT WAS HELD THEREIN THAT HEATERS WERE ACCESSORIES OF THIS TYPE AND, THEREFORE, MUST BE INCLUDED IN THE PURCHASE PRICE LIMITATION. ADDITION TO THE DECISIONS REFERRED TO ABOVE, THE QUESTION AS TO WHETHER HEATERS PROPERLY SHOULD BE CONSIDERED AS FALLING WITHIN THE PRICE LIMITATION PRESCRIBED BY CONGRESS ALSO WAS CONSIDERED IN 24 COMP. GEN. 94 AND THE HOLDING IN 19 COMP. GEN. 988 WAS REAFFIRMED THEREIN.

WITH RESPECT TO THE CONTENTION THAT THE PHRASE "COMPLETELY EQUIPPED FOR OPERATION" WAS NOT INTENDED TO APPLY TO SUCH ITEMS AS HEATERS, BUT ONLY TO ITEMS WHICH ARE REQUIRED EQUIPMENT UNDER THE LAW OF MOST STATES, CONSIDERING THE LONG PERIOD OF TIME DURING WHICH THE ABOVE STATED RULE HAS BEEN IN EFFECT TOGETHER WITH THE FACT THAT IT WAS REITERATED ON AUGUST 9, 1944, IN 24 COMP. GEN. 94, OR ONLY TWO YEARS PRIOR TO THE ENACTMENT OF SECTION 5 (C) (1) OF THE ACT OF JULY 16, 1914, AS ADDED BY SECTION 16 (A) OF THE ACT OF AUGUST 2, 1946, IT MUST BE PRESUMED THAT THE CONGRESS, IN TAKING SUCH ACTION, WITHOUT SPECIFICALLY EXCLUDING THE COST OF HEATERS FROM THE APPLICABLE PRICE LIMITATION, WAS FAMILIAR WITH THE RULE AND INTENDED TO ADOPT IT AND CONTINUE IT IN EFFECT. SEE NATIONAL LEAD CO. V. UNITED STATES, 252 U.S. 140. CONSEQUENTLY, A SUBSEQUENT CONSTRUCTION CONTRARY TO THE RULE WOULD NOT BE LEGALLY JUSTIFIED (SEE EDWARDS V. WABASH RY. CO., 264 F. 610), AND THE PREVIOUS DECISIONS OF THIS OFFICE, SO FAR AS THEY HOLD THAT A HEATER IS A PART OF THE EQUIPMENT NECESSARY FOR THE OPERATION OF A PASSENGER-CARRYING VEHICLE AND THUS WITHIN THE APPLICABLE PRICE LIMITATION, MUST BE SUSTAINED.

IT IS RECOGNIZED, HOWEVER, THAT THERE ARE AREAS IN WHICH THE CLIMATE IS SUCH THAT A HEATER WOULD NOT BE A PIECE OF EQUIPMENT ESSENTIAL FOR THE OPERATION OF A CAR AND, THEREFORE, NOT NECESSARY AT THE TIME THE VEHICLE IS PURCHASED. IT IS FURTHER RECOGNIZED THAT IN AN AGENCY SUCH AS THE DEPARTMENT OF THE ARMY IT MAY BE NECESSARY AT TIMES TO TRANSFER PASSENGER- CARRYING VEHICLES FROM SUCH AREAS TO AN AREA IN WHICH THE CLIMATE IS SUCH THAT THE INSTALLATION OF HEATERS MAY BE ESSENTIAL FOR THE OPERATION OF THE VEHICLES. IN SUCH INSTANCES, WHERE THE VEHICLES TRANSFERRED WERE PURCHASED IN GOOD FAITH FOR USE IN A WARM CLIMATE AREA AND, AFTER BONA FIDE OPERATION UNDER THE CONDITIONS CONTEMPLATED AT THE TIME OF PURCHASE, ARE TRANSFERRED TO A COLD CLIMATE AREA, THIS OFFICE WILL NOT OBJECT TO THE PURCHASE OF A HEATER WITHOUT A SHOWING THAT SUCH PURCHASE IS NOT IN CONTRAVENTION OF THE PRICE LIMITATION IN EFFECT AT THE TIME THE VEHICLES WERE PURCHASED, PROVIDED A STATEMENT OF FACTS INDICATING THAT THE PURCHASE WAS NECESSITATED BY CIRCUMSTANCES SUCH AS OUTLINED ABOVE IS ATTACHED TO THE PERTINENT CONTRACT OR VOUCHER.

IT IS BELIEVED THAT THE FOREGOING WILL SERVE TO RELIEVE THE DEPARTMENT OF THE ARMY OF MUCH OF THE DIFFICULTY REFERRED TO IN YOUR LETTER.