B-36415, AUGUST 31, 1943, 23 COMP. GEN. 150

B-36415, AUGUST 31, 1943, 23 COMP. GEN. 150

APPROPRIATIONS - AVAILABILITY FOR OBLIGATION BEYOND FISCAL YEAR - CONSTRUCTION OF PUBLIC BUILDINGS WHERE AN APPROPRIATION FOR THE CONSTRUCTION OF PUBLIC BUILDINGS IS BY ITS TERMS RESTRICTED TO THE "FISCAL YEAR 1943," THE PROVISION IN SECTION 1 OF THE ACT OF JUNE 23, 1874, THAT MONEYS APPROPRIATED FOR THE CONSTRUCTION OF PUBLIC BUILDINGS SHALL REMAIN AVAILABLE UNTIL COMPLETION OF THE WORK, DOES NOT OPERATE TO REMOVE THE FISCAL YEAR LIMITATION SO AS TO AUTHORIZE OBLIGATION OF THE APPROPRIATION BEYOND THE EXPIRATION OF THAT FISCAL YEAR.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION, AUGUST 31, 1943:

I HAVE YOUR LETTER OF AUGUST 12, 1943, REQUESTING DECISION ON MATTERS SET FORTH THEREIN AS FOLLOWS:

THE FIRST DEFICIENCY APPROPRIATION ACT, 1943, PROVIDED AN ADDITIONAL $90,500 FOR THE FEDERAL COMMUNICATIONS COMMISSION. THE LANGUAGE OF THE APPROPRIATION ACT IS AS FOLLOWS:

"SALARIES AND EXPENSES, NATIONAL DEFENSE: FOR AN ADDITIONAL AMOUNT FOR "SALARIES AND EXPENSES, NATIONAL DEFENSE," FISCAL YEAR 1943, INCLUDING THE OBJECTS SPECIFIED UNDER THIS HEAD IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1943, AND FOR THE PURCHASE OF LAND IN THE HAWAIIAN ISLANDS AND THE CONSTRUCTION THEREON OF BUILDINGS FOR MONITORING FACILITIES, THE COST OF WHICH SHALL BE REIMBURSED FROM AN APPLICABLE APPROPRIATION OF THE NAVY DEPARTMENT IN AN AMOUNT NOT TO EXCEED $25,000, AND FOR THE CONSTRUCTION IN ALASKA, ON LAND ALREADY OWNED BY GOVERNMENT, OF BUILDINGS FOR THE HOUSING OF EMPLOYEES, $90,500; AND THE LIMITATION UPON THE AMOUNT WHICH MAY BE EXPENDED FOR TRAVEL EXPENSES UNDER THIS HEAD IS HEREBY INCREASED FROM $222,000 TO $272,000.'

FROM THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, AND FROM THE HOUSE OF REPRESENTATIVES REPORT NO. 170, IT APPEARS THAT $50,000 WAS FOR TRAVEL EXPENSE AND $12,500 FOR TRANSPORTATION OF HOUSEHOLD GOODS, WHICH ITEMS ARE NOT NOW IN QUESTION, AND THAT THE BALANCE OF $28,000 WAS INCLUDED FOR THE FOLLOWING PROJECTS:

1. $25,000 FOR THE CONSTRUCTION OF BUILDINGS TO HOUSE EMPLOYEES ON LAND ALREADY OWNED BY THE GOVERNMENT AT THE MONITORING STATION AT POINT LENA, ALASKA. THE MONITORING STATION WAS LOCATED AT POINT LENA, EIGHTEEN MILES FROM JUNEAU THE NEAREST CITY, AFTER A CAREFUL SURVEY BECAUSE IT AFFORDED THE BEST LISTENING POINT FROM WHICH TO COVER THAT HIGHLY IMPORTANT MILITARY AREA. THE STATION IS IN OPERATION TWENTY FOUR HOURS A DAY, REQUIRING THREE WATCHES, AND THE PERSONNEL HAVE TO TRAVEL BACK AND FORTH TO JUNEAU OVER A CIRCUITOUS ROAD SKIRTING THE COAST WHICH IS EXTREMELY HAZARDOUS, ESPECIALLY IN WINTER.

2. $3,000 FOR CLEARING GROUND AT THE POINT LENA MONITORING STATION FOR THE CONSTRUCTION OF A DIRECTIONAL ANTENNA.

THE APPROPRIATION ALSO AUTHORIZED THE USE OF NOT MORE THAN $25,000 OF NATIONAL DEFENSE FUNDS FOR THE INITIAL FINANCING OF A PROJECT IN HAWAII INVOLVING THE PURCHASE OF LAND AND THE CONSTRUCTION THEREON OF BUILDINGS TO HOUSE MONITORING FACILITIES, THE COST OF WHICH WAS TO BE REIMBURSED BY THE NAVY DEPARTMENT, BUT IT IS CLEAR FROM THE ABOVE ANALYSIS OF THE ESTIMATES, AND ALSO FROM THE TESTIMONY BEFORE THE SUBCOMMITTEE, THAT THIS $25,000 WAS NOT INTENDED TO BE AN INTEGRAL PART OF THE $90,500. COMMISSIONER WAKEFIELD'S PREPARED STATEMENT FOR THE SUBCOMMITTEE WAS IN PERTINENT PART AS FOLLOWS:

"REPLACEMENT OF MONITORING STATION IN THE HAWAIIAN ISLANDS--- NO FUNDS REQUESTED.--- A BUILDING RECENTLY ERECTED TO HOUSE THE COMMISSION'S MONITORING STATION ON THE ISLAND OF OAHU, .H., HAS BEEN TAKEN OVER BY THE NAVY, WHICH PROPOSES TO PAY $25,000 FOR A NEW SITE AND BUILDING TO HOUSE THE COMMISSION'S STATION. NO FUNDS ARE REQUESTED FOR A NEW STATION, BUT ONLY LANGUAGE AUTHORIZING THE COMMISSION TO ACCEPT THE COST OF THE NEW STATION FROM THE NAVY.'

COMMANDER WILLENBUCHER APPEARED BEFORE THE SUBCOMMITTEE ON BEHALF OF THE NAVY DEPARTMENT AND TESTIFIED:

"THE FEDERAL COMMUNICATIONS COMMISSION WITH FULL COOPERATION TURNED OVER 30 ACRES OF LAND TO THE NAVY DEPARTMENT FOR ESSENTIAL EXPANSION IN CONNECTION WITH A RADIO ACTIVITY OF THE NAVY, AND THE AGREEMENT WAS THAT WHEN THE FEDERAL COMMUNICATIONS COMMISSION WOULD OBTAIN LEGISLATIVE AUTHORITY TO REPLACE ITS OWN LAND FOR ITSELF, THE NAVY DEPARTMENT WOULD REPLACE IT AND PAY FOR IT FROM GENERAL FUNDS AVAILABLE TO THE NAVY DEPARTMENT. THE NAVY DEPARTMENT BUDGET OFFICER, ADMIRAL ALLEN, HAS INDICATED THAT THOSE FUNDS ARE AVAILABLE, AND THAT IS THE PARTICULAR PURPOSE OF THIS ITEM.'

IMMEDIATELY AFTER THE FIRST DEFICIENCY APPROPRIATION ACT, 1943, BECAME LAW ON MARCH 18, 1943, STEPS WERE TAKEN TO PROCEED WITH THESE PROJECTS BUT IT WAS NOT POSSIBLE TO OBLIGATE THE FUNDS PRIOR TO JUNE 30. THE HAWAIIAN PROJECT WAS DELAYED BY THE NECESSITY OF A SURVEY TO SELECT A FAVORABLE SITE AND BY NEGOTIATIONS WITH THE LANDOWNERS FOR A REASONABLE PRICE. BIDS WERE RECEIVED FOR THE ALASKAN PROJECTS BEFORE JUNE 30, BUT WERE REJECTED AS THEY WERE TOO HIGH TO PERMIT OF COMPLETING THE WORK WITH THE FUNDS PROVIDED. IT IS BELIEVED THAT THESE BIDS WERE HIGH BECAUSE OF UNCERTAINTY IN THE MINDS OF THE BIDDERS AS TO THE AVAILABILITY AND COST OF LABOR AND MATERIALS, AND THAT NOW IT WOULD BE POSSIBLE TO OBTAIN MORE REASONABLE BIDS.

THE NEED FOR THESE PROJECTS IS CONTINUING AND THERE ARE SUFFICIENT UNOBLIGATED FUNDS FROM NATIONAL DEFENSE APPROPRIATIONS FOR THE FISCAL YEAR 1943 TO FINANCE THEM, BUT NO STEPS HAVE BEEN TAKEN SINCE JUNE 30 TO PROCEED WITH THESE PROJECTS BECAUSE OF QUESTIONS WHICH AROSE AS TO THE PROPRIETY OF OBLIGATING SUCH FUNDS DURING THE FISCAL YEAR 1944.

TITLE 31, SECTION 682, OF THE U.S.C. IS AS FOLLOWS:

"ALL MONEYS APPROPRIATED FOR THE CONSTRUCTION OF PUBLIC BUILDINGS SHALL REMAIN AVAILABLE UNTIL THE COMPLETION OF THE WORK FOR WHICH THEY ARE, OR MAY BE APPROPRIATED; AND UPON THE FINAL COMPLETION OF EACH ORANY OF SAID BUILDINGS AND THE PAYMENT OF ALL OUTSTANDING LIABILITIES THEREFOR, THE BALANCE OR BALANCES REMAINING SHALL BE IMMEDIATELY COVERED INTO THE TREASURY. ( JUNE 23, 1874, C. 476, SEC. 1, 18 STAT. 275).'

THE PROJECT FOR THE CONSTRUCTION OF BUILDINGS AT POINT LENA SEEMS TO BE CLEARLY WITHIN THE SCOPE OF THIS PROVISION OF LAW. THE OTHER TWO PROJECTS ARE IN THE NATURE OF NON-RECURRING CAPITAL EXPENDITURES, BUT AS ONE CALLS FOR THE PURCHASE OF LAND PRELIMINARY TO THE CONSTRUCTION OF BUILDINGS AND THE OTHER FOR THE CLEARING OF LAND PRELIMINARY TO THE ERECTION OF STRUCTURES OTHER THAN BUILDINGS, WE ARE NOT CLEAR AS TO THE APPLICABLE RULE.

THE FIRST DEFICIENCY APPROPRIATION ACT, 1943, APPROVED MARCH 18, 1943, 57 STAT. 21, IN WHICH THERE APPEARS THE APPROPRIATION ITEM QUOTED IN YOUR LETTER, PROVIDES IN ITS OPENING CLAUSE:

THAT THE FOLLOWING SUMS ARE APPROPRIATED * * * TO SUPPLY DEFICIENCIES IN CERTAIN APPROPRIATIONS FOR THE FISCAL YEAR ENDING JUNE 30, 1943, AND FOR PRIOR FISCAL YEARS, TO PROVIDE SUPPLEMENTAL APPROPRIATIONS FOR THE FISCAL YEAR ENDING JUNE 30, 1943, AND FOR OTHER PURPOSES.

WHILE IT WOULD SEEM APPARENT FROM THIS PROVISION OF LAW, ALONE, THAT CONGRESS INTENDED THAT THE APPROPRIATIONS AND AUTHORIZATIONS CONTAINED IN THE ACT--- UNLESS SPECIFICALLY PROVIDING OTHERWISE--- WERE TO BE CONSIDERED AS FOR THE FISCAL YEAR 1943, THE LANGUAGE OF THE APPROPRIATION ITEM HERE INVOLVED PROVIDES IN SPECIFIC TERMS THAT IT IS FOR THE "FISCAL YEAR 1943" AND THIS MUST CONTROL THE CONCLUSION TO BE REACHED IN THE PRESENT MATTER.

THE EFFECT OF SECTION 1 OF THE ACT OF JUNE 23, 1874, 18 STAT. 275, QUOTED IN YOUR LETTER HERETOFORE HAS BEEN CONSIDERED BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT AND IT CONSISTENTLY HAS BEEN HELD THAT THE PROVISIONS OF THE SAID ACT OF 1874 DO NOT OPERATE TO REMOVE FISCAL YEAR LIMITATIONS WHERE SPECIFICALLY STATED IN APPROPRIATIONS FOR THE CONSTRUCTION OF PUBLIC BUILDINGS.

FOR EXAMPLE, IN 6 COMP. GEN. 783, THERE WAS CONSIDERED AN APPROPRIATION FOR THE CONSTRUCTION OF A PUBLIC BUILDING AND WHICH CONTAINED THE WORDS "FISCAL YEAR 1927.' IT WAS HELD IN SAID DECISION AS FOLLOWS:

IT THUS APPEARS THAT THE AUTHORITY FOR INCURRING THE OBLIGATIONS IN QUESTION WAS GRANTED JUNE 10, 1926, AND THAT THE APPROPRIATION TO PAY SAID OBLIGATIONS WAS MADE AVAILABLE JULY 3, 1926. AS THE APPROPRIATION WAS SPECIFICALLY DESIGNATED AS "FISCAL YEAR 1927" IT MUST BE ASSUMED THAT THE PERIOD FROM JUNE 10, 1926 TO JUNE 30, 1927--- MORE THAN A YEAR--- WAS REGARDED AS AMPLE TIME IN WHICH TO INCUR ALL THE OBLIGATIONS AUTHORIZED UNDER THE SAID PROVISION IN THE ACT OF JUNE 10, 1926. THERE IS NOTED IN THIS CONNECTION THAT IN THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE HOUSE COMMITTEE ON APPROPRIATIONS, IN THE DISCUSSION OF THIS ITEM ON JUNE 17, 1926, IT WAS STATED THAT THE MASTER TRACK SCALE WOULD BE INSTALLED WITHIN A YEAR, INDICATING THAT IF THE APPROPRIATION WAS GRANTED THE ACQUISITION OF THE SITE, THE CONSTRUCTION OF THE BUILDING, AND THE PURCHASE AND INSTALLATION OF THE EQUIPMENT WOULD BE ACCOMPLISHED WITHIN THE FISCAL YEAR 1927. BUT BE THAT AS IT MAY, AND REGARDLESS OF THE FACT THAT THE APPROPRIATION IS FOR THE CONSTRUCTION OF A BUILDING, IN VIEW OF THE PLAIN TERMS OF THE APPROPRIATION IN QUESTION IT MUST BE HELD THAT ITS AVAILABILITY FOR THE INCURRING OF OBLIGATIONS THEREUNDER CEASES ON JUNE 30, 1927. ( ITALICS SUPPLIED.)

IN ANOTHER DECISION, 18 COMP. GEN. 969, THE ACT THERE INVOLVED APPROPRIATED FUNDS "TO REMAIN AVAILABLE UNTIL JUNE 30, 1939," FOR THE CONSTRUCTION OF CERTAIN COAST GUARD AIR STATIONS. AFTER QUOTING SECTION 1 OF THE ACT OF JUNE 23, 1874, SUPRA, IT WAS HELD:

ASSUMING THAT THE AIR STATIONS AT ELIZABETH CITY AND SAN FRANCISCO HERE INVOLVED ARE "PUBLIC BUILDINGS" WITHIN THE PURVIEW OF THIS PROVISION IN THE ACT OF JUNE 23, 1874, THE AVAILABILITY OF THE APPROPRIATIONS THEREFOR MAY NOT BE HELD TO BE EXTENDED BY SUCH ACT, IN VIEW OF THE EXPRESS LIMITATIONS PUT ON SUCH APPROPRIATIONS BY THE CONGRESS IN PROVIDING THAT SUCH APPROPRIATIONS WERE ,TO REMAIN AVAILABLE UNTIL JUNE 30, 1939.' "AVAILABLE" MEANS AVAILABLE FOR ADMINISTRATIVE OBLIGATION; AND HAVING BEEN EXPRESSLY MADE SO AVAILABLE "UNTIL JUNE 30, 1939," THEY MAY NOT BE TREATED AS AVAILABLE FOR ADMINISTRATIVE OBLIGATION AFTER THAT DATE. * * *

HAD THE APPROPRIATION HERE IN QUESTION NOT CONTAINED THE WORDS "FISCAL YEAR 1943," IT MIGHT BE CONSTRUED UNDER THE PROVISIONS OF THE ACT OF JUNE 23, 1874, SUPRA, AS A PUBLIC BUILDING APPROPRIATION SUCH AS WOULD BE AVAILABLE UNTIL FINAL COMPLETION OF SUCH BUILDINGS AS ARE AUTHORIZED TO BE CONSTRUCTED THEREUNDER; BUT THE CONGRESS HAVING SEEN FIT TO PLACE AN EXPRESS LIMITATION THEREIN, CONFINING IT TO THE FISCAL YEAR 1943, IT MUST BE HELD THAT THE APPROPRIATION IS A FISCAL YEAR APPROPRIATION FOR THAT FISCAL YEAR, CONFORMABLY WITH THE DECISIONS ABOVE CITED. ACCORDINGLY, IN SPECIFIC ANSWER TO THE QUESTION YOU SUBMIT, I HAVE TO ADVISE THAT THE UNEXPENDED FUNDS UNDER THAT APPROPRIATION ARE NOT AVAILABLE FOR THE INCURRING OF OBLIGATIONS SUBSEQUENT TO JUNE 30, 1943, EITHER FOR THE THREE PROJECTS TO WHICH YOU REFER OR FOR OTHER PURPOSES.