JULY 1, 1957–JUNE 30, 1958
(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-
Page ADVERTISING-Continued
Necessity or nonnecessity-Continued tions are so altered as to make amount of change to be expected in bid prices con- Jectural.....
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:
Authority to waive administrative reg-
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
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....
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...
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
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:
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
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..........
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
Page APPROPRIATIONS—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:
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
Page APPROPRIATIONS-Continued
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:
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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