ABSENCES:

(See Leaves of Absence)
ADMINISTRATIVE DETERMINA-
TIONS:
Conclusiveness:

Extent of General Accounting Office au-
thority-Government corporations. (See
Corporations, Government)

Small business-small business compe-
tency certifications which are made con-
clusive on procurement officers of Govt.
by sec. 213 of Small Business Act of 1953,
15 U. S. C. 642, are final only with re-
spect to capacity or credit of bidder and
are not controlling where bidder is deter-
mined not to be qualified for other
reasons, such as lack of integrity; con-
sistent record of default under prior
contracts; not manufacturer or dealer;
debarment under Walsh-Healey or
Davis-Bacon Acts...........

ADMINISTRATIVE ERRORS:
Compensation. (See Compensation, admin-
istrative error)

Leave credit. (See Leaves of Absence, an-
nual, excess leave adjustments, maximum
accumulation v. current leave, forfeiture
due to administrative error)
ADMINISTRATIVE EXPENSES:
Leasing of office space-inasmuch as rent for
regional office space leased by Govt. cor-
poration-wholly-owned or mixed-owner-
ship-is an administrative expense, the
solicitation for lease of space must be ad-
vertised in accordance with require-
ments of sec. 3709, R. S., 41 U. S. C. 5...
ADVERTISING:

Necessity or nonnecessity:

Corporations-inasmuch as rent for re-
gional office space leased by Govt. cor-
poration-wholly-owned or mixed-
ownership is an administrative ex-
pense, the solicitation for lease of space
must be advertised in accordance with
requirements of sec. 3709, R. S., 41
U. S. C. 5.....
Negotiation. (See Contracts, negotiation)
No useful purpose to be served-exception
to advertising statutes which permits
awards in cases where no useful purpose
would be served by advertising may not
be resorted to where original specifica-

Necessity or nonnecessity-Continued
tions are so altered as to make amount of
change to be expected in bid prices con-
Jectural.....

Page

524

Sole source of supply-Govt.'s need for
uniformity in procurement of item to be
produced after model had been accepted
and in procurement of additional quan-
tities, which were advertised under sep-
arate invitation, is not sufficient basis for
determining that contractor who pro-
duced acceptable model, which differed
materially and improved on specifi-
cations, is sole source of supply and for
dispensing with requirement for read-
vertising for additional quantities after
design and performance requirements
were definitely established..........
Specification changes-neither award of
contract made on basis of subsequently
amended specifications nor modification
of existing contract to incorporate
amended specifications is in compliance
with advertising statutes which require
that same specifications be offered to all
prospective bidders to permit full and
free competition for Govt. business..... 524
AGRICULTURE DEPARTMENT:
Soil bank:

Regulation waiver:

Authority to waive administrative reg-

524

ulations which were promulgated,
pursuant to Soil Bank Act, must be
based on specific statutory language
which would permit exercise of ad-
ministrative discretion to waive reg-
ulations in individual cases and such
authority may not be implied from
general language of sec. 124 of act, 7
U. S. C. 1812, which authorizes Secre-
tary to prescribe regulations to carry
out soil bank program....
Statute which authorizes administrative
officer to prescribe regulations neces-
sary to carry out program requires pro-
mulgation of regulations of general
application and does not imply au-
thority for inclusion in regulations of
waiver provision which would permit
administrator in his discretion to dis-
regard regulations in certain individual
cases and to enforce them in others... 820

820

AIRCRAFT:

Charter-ferry charges in the determina-
tion of ferry mileage claims on charter air
movements for the military agencies, the
meaning of the terms "ferry mileage,"
"ferry flight," or "ferry," used but not
defined in an airline charter tariff, may be
determined from definitions used in the
tariffs of other air carriers operating charter
services....

ALASKA:

Effect of territorial legislative action on
Federal funds-fund "C"-although Ter-
ritory of Alaska in enactment of its mental
health program legislation provided for
payment of fees and expenses for judicial
proceedings from schedule "C" fund,
similar to 48 U. S. C. 47, which was re-
pealed pursuant to sec. 301 of Alaska
Mental Health Enabling Act of 1956, 48
U.S. C. 46-1, any action by Territory with
respect to schedule "C" fund, which is
made up of receipts authorized by Con-
gress to be used rather than to be deposited
into Treasury and which is, therefore, to be
regarded as appropriated funds, would be
inconsistent with Article 1, Sec. 9, Clause
7 of the Constitution, hence, schedule "C"
fund is not subject to expenditure by
Territorial legislature.....
Mental health program-cost responsibility—
sec. 102 of Alaska Mental Health Enabling
Act of 1956, which confers responsibility
for care of committed mental patients on
legislature of Alaska does not carry with it
responsibility for prior commitment ex-
penses nor authorize Territory to increase
fees of commissioners, jurors and witnesses
otherwise payable from schedule "C"
funds, therefore, schedule "C" funds
which were heretofore available for inci-
dental expenses of court, including com-
mitment proceedings, may continue to be
used for expenses incident to insanity pro-
ceedings...

ALIENS:
Employment:

Compensation prohibition-relief-Dept.
of Army employee who was in fact
citizen of England, although she believed
that she had acquired U. S. citizenship
by reason of naturalization of father, and
who received compensation during fiscal
year 1942 contrary to prohibition in
Military Appro. Act, 1942, against
payment of salary to noncitizens, is
found to have been paid by disbursing
officer in good faith and without any
lack of good faith on her part to justify
invoking relief provisions of act of May
2, 1942, and, therefore, no salary refund
from employee is required.......
Regulation r. statutory prohibition-em-
ployment of noncitizen by Dept. of
Army contrary to Civil Service Reg.
£104, which precludes permanent em-

Page | ALIENS-Continued
Employment-Continued

243

243

483

ployment in competitive service unless
person is citizen or owes allegiance to
U. 8., does not make appointment vold
ab initio but voidable only so that em-
ployee who is separated pursuant to such
regulation when it is learned that no
record could be found of naturalization of
father as U. S. citizen is entitled to com-
pensation and lump-sum leave earned
prior to separation....

Military personnel travel. (See Travel Ex-
penses, military personnel, release from
active duty, aliens).

Retired military member losing United
States citizenship. (See Pay, retired, dis-
ability, termination, foreign citizenship)
ANNUAL LEAVE:

(See Leaves of Absence, annual)
APPOINTMENTS:

Informal, irregular, etc.—voidable v. void—
employment of noncitizen by Dept. of
Army contrary to Civil Service Reg. 2.104,
which precludes permanent employment
in competitive service unless person is
citizen or owes allegiance to U. S., does not
make appointment void ab initio but
voidable only so that employee who is
separated pursuant to such regulation
when it is learned that no record could be
found of naturalization of father as U. 8.
citizen is entitled to compensation and
lump-sum leave earned prior to separation. 483
Military personnel:

Termination:

Acceptance of Regular Army commis-
sion as first lieutenant by officer who
is serving on active duty under com-
mission as Captain, Army of the
United States, without component,
does not terminate existing com-
mission and fact that officer's military
record and report of separation show
him as being separated on date of so-
ceptance of Regular Army commission
does not in itself alter or change his
status insofar as existing commission
in Army of U. S., without component
is concerned and, accordingly, officer
was not discharged or released for
purpose of accepting appointment in
Regular service for entitlement to
mustering-out pay....

Placing of Air Force Reserve officer on
temporary disability retired list under
orders which advised officer that his
appointment was terminated does not
automatically terminate his appoint
ment and statement in orders which
was not in accordance with any pro-
vision of law is not regarded as ad-
ministrative act terminating appoint-
ment; therefore, member who con-
tinued to be de jure member of
Reserves while on temporary diss

APPOINTMENTS-Continued
Military personnel-Continued

Termination-Continued

bility retired list and who was em-
ployed in civilian position is exempt
from dual compensation restrictions
in 5 U. S. C. 59 (a) and may receive
retired pay which had been withheld
due to termination of Reserve status...
APPROPRIATIONS:
Adjustment-accountable officer relief-
losses which are incurred by overseas
disbursing officers performing disbursing
functions for Dept. of State as well as for
other agencies pursuant to authority
delegated from Dept. of Treasury under
sec. 4 of E. O. No. 6166, but which cannot
be related to function of any particular one
or more of agencies for which disbursements
are made, are required to be adjusted from
current appropriation of Dept. of State
available for disbursing function at time
adjustment is made, in absence of more
specific appropriation for such adjust-
ments; however, in future disbursing losses
may be considered as part of cost of dis-
bursing function and considered in de-
termination of reimbursement charges
assessed agencies using disbursing service..
Apportionment. (See Appropriations, de-
ficiencies, Antideficiency Act, apportion-
ment)

Augmentation-repair of another agency's
building expenditure of Canal Zone
Govt. funds for conversion of buildings
transferred to Govt. by Dept. of Navy,
with right of recapture reserved to trans-
feror, would not be improper augmenta-
tion of Navy appropriations provided that
funds were specifically appropriated to
Canal Zone for such purpose-------
Authorizations:
Effect:

Authorization for appropriation in act
of Sept. 2, 1957, 71 Stat. 575, which
provides for payment of inequitable
losses in pay sustained by officers of
uniformed services under emergency
economy legislation, does not consti-
tute appropriation nor expand avail-
ability of appropriations thereafter
made in absence of specific statutory
provision, and fact that Coast Guard
Commandant advised Subcomm. of
Comm. on Appro., House of Repre-
sentatives, that such claims by officers
or former officers of Coast Guard were
to be paid from 1959 Coast Guard ap-
propriation does not have effect of
making appropriation available for
payment of claims....
Authority in sec. 16, title 2, Canal Zone

Code, for acquisition or construction of
buildings is appropriation authoriza-

Page APPROPRIATIONS—Continued
Authorizations-Continued

811

Effect-Continued

tion and does not supersede prohibi-
tion in sec. 3733, R. S., 41 U. S. C. 12,
against execution of contracts for con-
struction of public buildings in absence
of specific appropriation for such pur-
pose; therefore, specific appropriation
for conversion of buildings in Canal
Zone is required before expenditure
can be made..........

Availability:

Christmas cards. (See Printing and Bind-
ing, Christmas cards)

Compensation increases-reclassified posi-
tions-when Civil Service Comm. pre-
pares and publishes revised standards for
positions as required under sec. 401 of
Classification Act of 1949, 5 U. S. C. 1094,
it is mandatory that administrative
agency take action within reasonable
time to place existing positions in proper
classes and grades prescribed in revised
standards and to pay scheduled salaries
of grades, notwithstanding current ap-
propriation estimates did not include in-
creased cost resulting from application of
new standards.------
Meetings. (See Meetings)
Objects other than as specified:

Funds for more than one purpose-use of
balance in Soldier's and Sailor's Civil
Relief Fund to refund some of com-
mercial insurance loss collections to
former servicemen in accordance with
decision in U. S. v. Plesha, 352 U. S.
202, when fund was initially estab-
lished by appropriations and includes
other collections administratively
made pursuant to statute for specific
purposes would be diversion of appro-
priations for another purpose, and in
view of inadequacy of fund for any uni-
form system for payment of all claims,
implementation of Plesha decision re-
quires Congressional action--------
Sanction by Congress:

Use of forest roads and trails appropria-
tions for construction and mainte-
nance of aircraft landing fields for
national forest purposes rather than
for roads and trails purposes in
amount authorized under sec. 201 of
Department of the Interior and Re-
lated Agencies Appropriation Act,
1958, for expenditure from appropria-
tions available to Forest Service,
would be legally objectionable as
use of appropriations for object other
than for which appropriation was
made, and mere fact that there was
disclosed at Congressional hearings

APPROPRIATIONS-Continued

Availability-Continued

Objects other than as specified-Continued
Sanction by Congress-Continued

administrative intent to use roads
and trails funds rather than forest
service or forest service protection
funds does not, in absence of specific
authority, establish Congressional
sanction for use of such funds......
Authorization for appropriation in act
of Sept. 2, 1957, 71 Stat. 575, which
provides for payment of inequitable
losses in pay sustained by officers of
uniformed services under emergency
economy legislation, does not con-
stitute appropriation nor expand
availability of appropriations there-
after made in absence of specific
statutory provision, and fact that
Coast Guard Commandant advised
Subcomm. of Comm. on Appro.,
House of Representatives, that such
claims by officers or former officers of
Coast Guard were to be paid from
1959 Coast Guard appropriation does
not have effect of making appropria-
tion available for payment of claims.
Although 1958 appropriation for Canal
Zone (Public Law 85-52) is in such
broad terms that it might be legally
available for conversion of certain
buildings, fact that Congress was
advised that appropriation was to
be used for completely different
projects requires submission of en-
tire matter to Congress before pro-
ceeding with building program....
Public buildings:
Expenditure without regard to fiscal

year. (See Appropriations, fiscal year,
availability beyond, public buildings
construction)

Repair. (See Public Buildings, repairs,
etc., appropriations)
Deficiencies-Antideficiency Act-allotment
subdivision-administrative appropriation
control reg. which provides for distribution
of budget apportionments into small
number of allotments to high level officials
and then permits them to further sub-
divide allotments into smaller segments
called allowances for purposes of operating
needs as distinguished from apportion-
ment control but requires responsibility
for allowances to be continued in allotment
officials is in conformance with subsec.
(g) of Antideficiency Act, 31 U. S. C. 665;
and under such reg, creation of obligation
in excess of dollar amount of allowance
would not be in violation of penalty and
reporting requirements of Antideficiency
Act.....

Fiscal year:

Availability beyond:

After expiration of obligation period-
amendments to be made, after period
for obligation of Federal airport ap-
propriations has expired, to grant
agreements to increase amount of
Federal obligation by not to exceed
10 percent as provided by act of July
25, 1949, 49 U. 8. C. 1111, which was
not self-executing act nor act which
obligated Govt. to increase amount
of all Federal obligations, have effect
of creating additional obligation to
one originally incurred and under rules
of appropriation construction such
amendments may only be made
during period for which appropriation
is available for obligation; therefore,
unobligated balances in appropriations
which expired on June 30, 1958, may
not be used to increase maximum
amounts established in grant agree-
ments by amendments made after
that date.....
Contracts:

Page

Amendments-amendments to be
made, after period for obligation of
Federal airport appropriations has
expired, to grant agreements to in-
crease amount of Federal obligation
by not to exceed 10 percent as pro-
vided by act of July 25, 1949, 49
U. S. C. 1111, which was not self-
executing act nor act which obli-
gated Govt. to increase amount of
all Federal obligations, have effect
of creating additional obligation to
one originally incurred and under
rules of appropriation construction
such amendments may only be made
during period for which appropria-
tion is available for obligation; there-
fore, unobligated balances in appro-
priations which expired on June
30, 1958, may not be used to increase
maximum amounts established in
grant agreements by amendments
made after that date...........
Long term execution of lease agree-
ment for rental of nitrogen gas
cylinders for 25-year period is in
contravention of advance payment
prohibition in sec. 3648, R. S., 31
U. S. C. 529; and, since rental agree-
ments are incident to regular and
continuing purchase of gas from
lessor over lease period, such agree-
ments are in violation of sec. 3735,
R. S., 41 U. S. C. 13, which prohibits
execution of contracts for more than
year, and secs. 3679 and 3732, R. S.,

APPROPRIATIONS-Continued

Fiscal year-Continued

Availability beyond-Continued
Contracts Continued

31 U. S. C. 665 and 41 U. S. C. 11,
limiting obligation of appropriations
by contract to needs arising within
fiscal year covered by appropriation
to be charged.............
Public building construction-annual
salaries and expenses appropriations
for Agricultural Research Service
which contain specific limitation on
amount available for construction,
alteration, and repair of buildings may
not be regarded as appropriations
which are separable so that amount
for construction could be established
on a no-year basis and considered
available continuously without ref-
erence to fiscal year pursuant to 31
U. S. C. 682 and 718.......

Interior Department:
Employees assigned to embassies-use of
Dept. of Interior appropriations for pro-
motion of mineral resources in U. S.,
its territories and possessions to pay
expenses incident to assignment of solid
fuels technologist to American Embassy
in Europe would not only be improper
In view of specific area limitation in ap-
propriation but, even more significant,
would be contrary to intent of Congress
and President as expressed in Reorgan-
ization Plan No. II of 1939, and Foreign
Service Act of 1946, which centralized
in Dept. of State responsibility for
foreign fact-finding and reporting of type
here involved for all agencies of Govt...
Road and trail funds for forest airfields-
use of forest roads and trails appropria-
tions for construction and maintenance
of aircraft landing fields for national
forest purposes rather than for roads
and trails purposes in amount authorized
under sec. 201 of Department of the
Interior and Related Agencies Appro-
priation Act, 1958, for expenditure from
appropriations available to Forest Serv-
ice, would be legally objectionable as
use of appropriations for object other
than for which appropriation was made,
and mere fact that there was disclosed
at Congressional hearings administra-
tive intent to use roads and trails funds
rather than forest service or forest serv-
Ice protection funds does not, in absence
of specific authority, establish Con-
gressional sanction for use of such funds.
Limitations-area designation-use of Dept.
of Interior appropriations for promotion
of mineral resources in U. S., its territories
and possessions to pay expenses incident

to assignment of solid fuels technologist
to American Embassy in Europe would
not only be improper in view of specific
area limitation in appropriation but, even
more significant, would be contrary to
intent of Congress and President as ex-
pressed in Reorganization Plan No. II of
1939, and Foreign Service Act of 1946,
which centralized in Dept. of State re-
sponsibility for foreign fact-finding and
reporting of type here involved for all
agencies of Govt..
Obligation:
Contracts:

Future needs:

Execution of lease agreement for rental
of nitrogen gas cylinders for 25-year
period is in contravention of advance
payment prohibition in sec. 3648,
R. S., 31 U. S. C. 529; and, since
rental agreements are incident to
regular and continuing purchase of
gas from lessor over lease period,
such agreements are in violation of
sec. 3735, R. S., 41 U. S. C. 13, which
prohibits execution of contracts for
more than year, and secs. 3679 and
3732, R. S., 31 U. S. C. 665 and 41
U. 8. C. 11, limiting obligation of
appropriations by contract to needs
arising within fiscal year covered by
appropriation to be charged...
Although contract for materials which
are needed in subsequent fiscal years
and which will not be obtainable on
open market at time required may
be regarded as contract for bona fide
need of fiscal year in which contract
is made so as to be considered prop-
erly made under sec. 1 of Surplus
Fund-Certified Claims Act of 1949
for obligation of annual appropri-
ations, procurement is subject to pro-
hibition in sec. 3739, R. S., against
making of contracts for terms in
excess of 1 year so that only needs of
first fiscal year may be considered
bona fide need of year in which con-
tract is made..........
Proposed contract which provides for
delivery of materials in future fiscal
years from source which can supply
both current and future needs and
which includes cancellation pro-
vision in effect obligating Govt. to
pay in 1 fiscal year charge far in ex-
cess of needs of that year is not con-
tract fulfilling bona fide need so as to
be considered properly made under
sec. 1 of Surplus Fund-Certified
Claims Act of 1949 for obligation of
annual appropriations....

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