(B-41654) ·

SERVICES BETWEEN FEDERAL AGENCIES-EXPIRATION OF SPECIFIC AUTHORITY AS AFFECTING AUTHORITY UNDER GENERAL LAW

Whether, from a factual standpoint, a particular Federal agency is "in a position to supply, or to render or to obtain by contract" services or supplies for another agency, within the meaning of section 601 of the Economy Act of June 30, 1932, as amended, is for administrative determination by the agency involved; however, as a matter of law, the general authority of the agency to procure or to perform the services would be affected by legislation pertaining specifically to the agency's functions or activities.

The fact that specific authority has been granted the Civil Aeronautics Administration by the Civilian Pilot Training Act of 1939, as amended, to conduct a pilot training program for naval personnel, which authority expires on July 1, 1944, does not operate to prohibit the Administration from performing pilot training services for the Navy Department after that date under the general authority provided by section 601 of the Economy Act of June 30, 1932, as amended, for interagency services-the full expense of the services to be charged to funds advanced to the Administration by the Navy Department in accordance with said section 601.

Comptroller General Warren to the Secretary of Commerce, June 9, 1944:

I have your letter of June 1, 1944, as follows:

Reference is made to your letter dated May 19, 1944 (B-41654) in reply to this Department's letter dated April 26, 1944.

It is not clear whether your letter expresses views applicable to the portion of the program which is being conducted by the Civil Aeronautics Administration for the Navy Department under Section 601 of the Economy Act, 31 U. S. C. Supp. 686, as amended.

The Navy Department has transferred funds to this Department for training of certain Navy personnel for the fourth quarter of the fiscal year ending June 30, 1944. The 1080 voucher covering this transfer states that it is for articles and services to be performed as follows:

"Advance payment for all necessary expenses incident to the training of Naval Personnel including the lease of Aircraft and Administration Overhead, under authority 31 U. S. C. 626, as amended."

Under date of May 15, 1944 the Navy Department advises that it desires that 1,450 of the Navy personnel now being given training under funds transferred to this Department be given an intermediate course to start July 7, 1944 and be trained until graduation on August 3, 1944. The Navy letter further states "Funds transferred to you thus far in fiscal year 1944 have not specifically provided for the cost of this training. We understand from you, however, that the money actually transferred will be ample to cover this additional course so that no further transfer of funds for training will be necessary."

The Navy has advised that it will be willing to amend its Order so as to authorize the expenditure of funds already transferred for the fiscal year ending June 30, 1944 to cover the additional training requested for the period falling within the 1945 fiscal year.

It is intended that the intermediate training will be given by private flight contractors pursuant to contracts between the Civil Aeronautics Administrator and the contractors, as authorized by Section 601 of the Economy Act, as amended by the Act of July 20, 1942, which specifically authorizes services to be performed through contracts. The necessary supervision and inspection of the facilities to be used, qualifications of personnel, and the detailed conduct of the program will be performed by the Civil Aeronautics Administration, which possesses the necessary knowledge, experience and facilities, acquired in the discharge of its regular functions, in inspection and supervisory work of the type required in order to assure that the Navy program will be completed satisfactorily.

It would be appreciated if you would advise whether there would be any objection to the Civil Aeronautics Administration performing the services requested by the Navy Department in connection with the conduct of the inter598796 44—vol. 23- -61

mediate course for Navy trainees during July and August, 1944, from funds transferred pursuant to Section 601 of the Economy Act, as amended, specifically covering said period.

In the decision of May 19, 1944 (B-41654), it was stated:

In view of the clear and unambiguous terms of section 7 of the Civilian Pilot Training Act of 1939, quoted in pertinent part in your letter, it must be held that all Amendatory Revocable Licenses executed under said act are terminated by operation of law as of July 1, 1944. And this would appear to be true whether payments under such licenses are made from funds appropriated to the Civil Aeronautics Administration or from funds of the War or Navy Departments. The source of the funds is not the controlling factor. The sole criterion is whether the agreement or obligation has been entered into under the Civilian Pilot Training Act of 1939; if so, it is to be at an end on July 1, 1944.

The substance of your present inquiry is whether, conceding that all contracts, leases, and other obligations entered into under the Civilian Pilot Training Act of 1939, 53 Stat. 855, are terminated by operation of law as of July 1, 1944, it necessarily follows that the Administration is precluded after that date from conducting a course of intermediate training for the Navy Department. It is understood that the full expense of such course would be charged to funds of the Navy Department available for such purpose which have been transferred to the Administration and which, though advanced during the fiscal year 1944, would be obligated by an order from the Navy Department requesting the additional training course for July and August, 1944, as provided in subsection (c) of section 601 of the Economy Act of June 30, 1932, as amended, 31 U. S. C. 686 (c). Reference is made to said section 601 of the Economy Act as, also, the authority under which the purposed course would be conducted. Said section provides:

(a) Any executive department or independent establishment of the Government, or any bureau or office thereof, if funds are available therefor and if it is determined by the head of such executive department, establishment, bureau, or office to be in the interest of the Government so to do, may place orders with any other such department, establishment, bureau, or office for materials, supplies, equipment, work, or services, of any kind that such requisitioned Federal agency may be in a position to supply or equipped to render, and shall pay promptly by check to such Federal agency as may be requisitioned, upon its written request, either in advance or upon the furnishing or performance thereof, all or part of the estimated or actual cost thereof as determined by such department, establishment, bureau, or office as may be requisitioned; but proper adjustments on the basis of the actual cost of the materials, supplies, or equipment furnished, or work or services performed, paid for in advance, shall be made as may be agreed upon by the departments, establishments, bureaus, or offices concerned: Provided, That the War Department, Navy Department, Treasury Department, Civil Aeronautics Administration, and the Maritime Commission may place orders, as provided herein, for materials, supplies, equipment, work, or services, of any kind that any requisitioned Federal agency may be in a position to supply, or to render or to obtain by contract: Provided further, That if such work or services can be as conveniently or more cheaply performed by private agencies such work shall be let by competitive bids to such private agencies. Bills rendered, or requests for advance payments made, pursuant to any such order, shall not be subject to audit or certification in advance of payment.

(b) Amounts paid as provided in subsection (a) shall be credited, (1) in the case of advance payments, to special working funds, or (2) in the case of payments other than advance payments, to the appropriations or funds against which charges have been made pursuant to any such order, except as hereinafter

provided. The Secretary of the Treasury shall establish such special working funds as may be necessary to carry out the provisions of this subsection. Such amounts paid shall be available for expenditure in furnishing the materials, supplies, or equipment, or in performing the work or services, or for the objects specified in such appropriations or funds. Where materials, supplies, or equipment are furnished from stocks on hand, the amounts received in payment therefor shall be credited to appropriations or funds, as may be authorized by other law, or, if not so authorized, so as to be available to replace the materials, supplies, or equipment, except that where the head of any such department, establishment, bureau, or office determines that such replacement is not necessary the amounts paid shall be covered into the Treasury as miscellaneous receipts. (c) Orders placed as provided in subsection (a) shall be considered as obligations upon appropriations in the same manner as orders or contracts placed with private contractors. Advance payments credited to special working funds shall remain available to the procuring agency for entering into contracts and other uses during the fiscal year or years for which the appropriation involved was made and thereafter until said appropriation lapses under the law to the surplus fund of the Treasury. (As amended July 20, 1942, ch. 507, 56 Stat. 661; Laws 1943, ch. 150, s 1, 57 Stat. 219.)

Prior to the amendment to said section approved July 20, 1942, 56 Stat. 661 (Public Law 670), it had been held that said section 601, 47 Stat. 417, did not authorize the transfer of funds from one Federal agency to another for the purpose of having the second agency procure the performance of work for the first agency by outside contract. See 19 Comp. Gen. 544; 20 Comp. Gen. 264. Under the section as amended the War Department, Navy Department, Treasury Department, Civil Aeronautics Administration, and the Maritime Commission are authorized to place orders for materials, supplies, equipment, or services, of any kind that any requisitioned Federal agency "may be in a position to supply, or to render or to obtain by contract." Thus, there is no question as to the authority of the Civil Aeronautics Administration under said section 601 of the Economy Act to contract with private flight contractors for the course of intermediate training requested by the Navy Department, provided the Civil Aeronautics Administration may be considered as "in a position" to do so.

Whether a particular agency is "in a position" to do certain work for another agency within the meaning of this provision is, in large measure, for administrative determination by the agency involved. Such agency, alone, can decide such matters as the availability of sufficient qualified personnel to perform or to supervise the performance of the work requested; and its determinations in such matters are to be weighed accordingly. Hence, in view of the representations made in your letter and the past experience of the Administration in the conduct of similar courses and programs, it is clear that from a purely practical or factual standpoint the Civil Aeronautics Administration is equipped to contract for and to administer the intermediate training course requested.

However, it would seem that there are inherent in the status of an agency being "in a position" to do work requested by another agency requisites of law as well as fact. For example, could it properly be

said that an agency was "in a position" to do certain work-or to procure such work by outside contract-notwithstanding such agency had been prohibited by specific statute from engaging in activities necessarily involved in the performance or procurement of such work? Cf. 17 Comp. Gen. 728; 18 Comp. Gen. 262; 21 Comp. Gen. 749.

As originally enacted, the Civilian Pilot Training Act of 1939 covered only the training of "civilian" pilots. Subsequently, the act was amended by the act of June 10, 1943, 57 Stat. 150, in order that the program of pilot training being conducted by the Civilian Aeronautics Administration under the Civilian Pilot Training Act of 1939 might be extended to military or naval personnel on active duty. See committee reports on H. R. 1670, 78th Congress. Such specific authority, as well as all contracts, leases, and other obligations executed thereunder, expires on July 1, 1944, under the terms of section 7 of the act. The precise question to be decided here is whether, having regard for the principle that legislation pertaining specifically to the functions or activities of an agency may affect the general authority of such agency to perform or procure services for another agency under section 601 of the Economy Act, the action of the Congress in specifically authorizing the Civil Aeronautics Administration to train pilots for a limited period of time should be construed as prohibiting the proposed arrangement with the Navy Department when the specific authority thus granted has expired.

The necessity for said amendment of June 10, 1943, stemmed from a decision of this office (B-31330, January 6, 1943) in which it was held that since appropriations theretofore made to the Civil Aeronautics Administrator for the purpose of carrying out the Civilian Pilot Training Act of 1939 were limited expressly to the training of "civilian" pilots, such appropriations were not available for training military or naval personnel on active duty. It will be noted that said decision did not involve the authority of the Civil Aeronautics Administration to train such personnel but only the authority for charging the expense of such training to funds appropriated to the Administration. In fact, in the concluding paragraph of said decision it was stated:

Accordingly, I have to advise that, under existing law, the preliminary training of Naval Reserve members on active duty whether by the Navy or at facilities established by the Civil Aeronautics Administration, must be at the expense of applicable naval appropriations.

And since the sole purpose of the amendment of June 10, 1943, to the Civilian Pilot Training Act of 1939, was to meet the objection raised by this office in said decision of January 6, 1943, it is reasonable to conclude that the fact of its enactment does not connote a previous lack of authority in the Civil Aeronautics Administration to train

pilots for the Navy Department under section 601 of the Economy Act-separate and apart from the program authorized by the Civilian Pilot Training Act of 1939-or signify an intention of the Congress to limit or otherwise affect the general authority contained in said section 601.

Accordingly, there appears no objection to the proposed arrangement under which the Civil Aeronautics Administration would conduct the course of intermediate training requested by the Navy Department under contracts with private flight contractors pursuant to the authority of section 601 of the Economy Act, as amended, the full expense of such course to be charged to funds advanced to the Administration by the Navy Department in accordance with the provisions of said section 601.

(B-41875)

PAY-LONGEVITY-SERVICE CREDITS

CONCURRENT ENLISTED SERV.

ICE OF NAVAL RESERVE MIDSHIPMEN (TEMPORARY)

While under section 3A of the Pay Readjustment Act of 1942, as amended, Naval Reserve officers may not count prior service as midshipmen (temporary) of the Naval Reserve for longevity pay purposes, their active service as midshipmen does not preclude the counting as Naval Reserve enlisted service of a concurrent period during which their enlisted status was retained in accordance with the regulations governing the appointment of enlisted men as midshipmen (temporary).

Assistant Comptroller General Yates to the Secretary of the Navy, June 9, 1944: Reference is made to your letter of May 6, 1944 (JAG: II: WJG:z L16-4/00) with enclosures, relative to the right of officers of the U. S. Naval Reserve to count for longevity pay purposes periods during which they held a dual status as enlisted men and as midshipmen (temporary) in the said Reserve.

The Naval Reserve Act of 1938, approved June 25, 1938, 52 Stat. 1176, 1177, 1182, provides in pertinent part as follows:

SEC. 4. The Naval Reserve shall be composed of male citizens of the United States and of the insular possessions of the United States who have attained the age of seventeen years and who, by appointment or enlistment therein under regulations prescribed by the Secretary of the Navy or by transfer thereto as in this Act provided, obligate themselves to serve in the Navy in time of war or when in the opinion of the President a national emergency exists: Provided further, That no officer or man of the Naval Reserve shall be a member of any other naval or military organization except the Naval Militia *

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SEC. 5. Any member of the Naval Reserve * may be ordered to active duty by the Secretary of the Navy in time of war or when in the opinion of the President a national emergency exists and may be required to perform active duty throughout the war or until the national emergency ceases to exist *

SEC. 9. The Secretary of the Navy shall prescribe all necessary and proper regulations, not inconsistent with the provisions of this Act, for the recruiting, organization, government, administration, training, inspection, and mobilization of the Naval Reserve