BNUMBER:  B-275669.2 
DATE:  July 30, 1997
TITLE: American Battle Monuments Commission-Contracting with, B-
275669.2, July 30, 1997
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Matter of:American Battle Monuments Commission-Contracting with 
          Donated Funds for World War II Armed Forces Memorial

File:     B-275669.2

Date:   July 30, 1997         

DIGEST

Pub. L. No. 103-32 establishes a special fund in the Treasury to be 
available to the American Battle Monuments Commission for establishing 
World War II Memorial.  The law also authorizes the Commission to 
accept private donations for the memorial and requires that the 
donations, along with other funds available for the memorial, be 
deposited in and invested by the Treasury.  All such funds are 
considered appropriated funds.  In contracting with these funds, 
including the donated funds, the Commission is required to follow the 
procedures prescribed by the Federal Property and Administrative 
Procedures Act and the Federal Acquisition Regulation otherwise 
applicable to federal contracting since neither Pub. L. No. 103-32 nor 
its legislative history indicate an intention that the Commission be 
exempt from such requirements.  68 Comp. Gen. 237 (1989), and 
B-211149, Dec. 12, 1985, distinguished.

DECISION

This responds to a request from the Secretary of the American Battle 
Monuments Commission asking whether the Commission must comply with 
the Federal Property and Administrative Services Act (FPASA) and the 
regulations implementing that statute when using donated funds to 
support contracts for the construction of a World War II Memorial 
pursuant to Pub. L. No. 103-32, 107 Stat. 90 (1993).  As explained 
below, the Commission is required to comply with the FPASA and the 
implementing Federal Acquisition Regulation (FAR) in contracting for 
the memorial with donated funds.

Background

Sections 1(b) and (c) of Pub. L. No. 103-32 require the Commission to 
establish the World War II Memorial in compliance with 40 U.S.C.  sec.  
1001-1010, establishing standards for commemorative works in the 
District of Columbia, and to provide for accessibility by and 
accommodation for the physically handicapped.  Section 3 of Pub. L. 
No. 103-32 authorizes the Commission to solicit and accept private 
contributions for the memorial.  This law does not refer to the FPASA 
or otherwise state the requirements applicable to Commission contracts 
for the memorial.  

The Commission recognizes that when a federal entity expends both 
appropriated and donated funds to accomplish a statutory purpose, the 
expenditures from both sources ordinarily are viewed as appropriated 
fund expenditures subject to the statutes and regulations applicable 
to such expenditures, such as the FPASA.       68 Comp. Gen. 237, 238 
(1989).  The Commission points out, however, that in      68 Comp. 
Gen. 237, concerning the Christopher Columbus Quincentenary Jubilee 
Commission, and B-211149, Dec. 12, 1985, concerning the Holocaust 
Memorial Council, we concluded that the Columbus Commission and the 
Holocaust Council did not have to follow the FPASA and the FAR when 
financing their contracts with donated funds.  The Commission asks 
whether it must comply with the FPASA and the FAR when contracting 
with funds donated under Pub. L. No. 103-32.

Analysis

The American Battle Monuments Commission, originally established in 
1923, has various responsibilities related to the design, 
construction, and maintenance of military cemeteries and memorials, 
primarily outside the continental United States.[1]   The Commission's 
request concerns the additional responsibilities Congress more 
recently assigned the Commission under Pub. L. No. 103-32 to establish 
a World War II Memorial in the District of Columbia or its environs.  
Section 3 of Pub. L. No. 103-32 provides that the Commission shall 
solicit and accept private contributions for the memorial.  Section 4 
creates a fund in the Treasury available to the Commission for the 
expenses of establishing the memorial.  The private contributions, as 
well as surcharges paid to the Commission for the memorial under the 
World War II 50th Anniversary Commemorative Coins Act, are required to 
be deposited in the fund.  In addition, section 4 requires the 
Secretary of the Treasury to invest any portion of the fund not 
required to meet current expenses in interest bearing obligations of 
the United States or obligations whose principal and interest are 
guaranteed by the United States, and to credit to the fund the 
interest on, and proceeds from the sale or redemption of such 
obligations.[2]  

The World War II 50th Anniversary Commemorative Coins Act, Pub. L. No. 
102-414, 106 Stat. 2106 (1992), authorizes the Secretary of the 
Treasury to mint and issue
commemorative coins, and sell such coins at prices intended to recover 
the costs of issuing the coins plus a surcharge.  The Act directs that 
all amounts received from the sale of the commemorative coins be 
deposited in the Treasury's Coinage Profit Fund, 31 U.S.C.  sec.  5111(b), 
and that the Secretary of the Treasury shall pay from that fund a 
specified portion of the surcharges derived from the sales of the 
coins to the American Battle Monuments Commission, to be used for the 
expenses of the World War II Memorial.  Funds payable from the Coinage 
Profits Fund are considered appropriated funds.  See 68 Comp. Gen. 583 
(1989).  See also, 57 Comp. Gen. 311 (1978), to the same effect 
concerning commissary sales surcharges.  

Funds available to agencies are considered appropriated funds, 
regardless of their source, if they are made available for collection 
and expenditure pursuant to specific statutory authority.  As 
discussed, the fund available for constructing the memorial consists 
not just of donated funds, but also consists of the surcharges from 
the coin sales transferred from the Coinage Profits Fund, and interest 
on and proceeds from the obligations in which the Secretary of the 
Treasury has invested funds not needed for current expenses.  In a 
case similar to this one, where (1) the agency had statutory authority 
to accept donations for a specific purpose, (2) the donations were 
required to be deposited in a special trust fund account in the 
Treasury, and (3) the funds from that account were then available to 
be disbursed for the designated purpose, the funds were considered to 
be appropriated funds.  The Liberty Consortium, B-215042, Apr. 12, 
1985.  In addition, as we recognized in the Columbus Commission and 
Holocaust Memorial decisions cited by the Commission, when a federal 
entity expends both appropriated and donated funds to accomplish a 
statutory purpose, the expenditures from both sources generally are 
viewed as appropriated fund expenditures subject to all statutes and 
regulations governing such expenditures.  68 Comp. Gen. 237, supra; 
and B-211149, Dec. 12, 1985, supra.

The procurement provisions of FPASA were established to "facilitate 
the procurement of property and services."  41 U.S.C.  sec.  251.  Section 
252 of Title 41 provides that "Executive agencies shall make purchases 
and contracts for property and services in accordance with the 
provisions" of subchapter IV and the implementing regulations.[3]  In 
implementing the procurement provisions of FPASA, the FAR applies to 
all "acquisitions," except where expressly excluded, and it defines 
acquisitions as "the acquiring by contract with appropriated funds of 
supplies or services (including construction) by and for the use of 
the Federal Government through purchase or lease . . . ."  48 C.F.R.  sec.  
1.104 and 12.101.   

The Commission cites no specific provision of law as excluding it from 
complying with the FPASA provisions in contracting for the World War 
II Memorial.  Rather, the Commission asks whether it may be exempt for 
contracts funded by donated funds as was the Christopher Columbus 
Quincentenary Jubilee Commission and the Holocaust Memorial Council.  
As explained below, we believe that these two cases involved factors 
that clearly distinguish them from this case.

With respect to the Columbus Quincentenary Jubilee Commission, the act 
establishing the Columbus Commission explicitly provided that "Subject 
to such rules and regulations as may be adopted by the Commission, the 
Commission may   . . . . procure supplies, services, and property; 
make contracts; expend in furtherance of this act funds appropriated, 
donated or received in pursuance of contracts hereunder."  We found 
nothing in the act nor its legislative history indicating that 
Congress intended for the Columbus Commission's separate and 
independent statutory authority to issue procurement rules and 
regulations to be constrained by the requirements of the FPASA or the 
FAR.  68 Comp. Gen. 237, 239.  The legislation governing establishment 
of the World War II Memorial has no such provision.

In the case of the Holocaust Memorial Council, we considered the 
nature and purpose of the Council to be unique.  Specifically, the 
Council's governing statute provided for the Council to pay all 
expenses related to constructing the Holocaust Museum with donated 
funds and explicitly provided that the donated funds were not 
appropriated funds.  Further, the background and legislative history 
associated with the act establishing the Council convinced us Congress 
intended for the Council to be  an entity significantly analogous to 
the Smithsonian Institution.  Consistent with that intent, we 
concluded that, as in the case of the Smithsonian, the Council could 
expend its donated funds in accordance with the directives of its 
governing board, free of the strictures generally applicable to 
government funds, including the procurement requirements in the FPASA 
and the implementing FAR.  B-211149, Dec. 12, 1985.  In contrast, 
neither Pub. L. No. 103-32 nor its legislative history indicates that 
the Commission was to use donated funds for contracting under rules 
and regulations different from those applicable to federal agencies 
using appropriated funds.

The statute governing establishment of the World War II Memorial 
differs from those governing the Columbus Commission and the Holocaust 
Council in other important respects.  The statutes establishing the 
Columbus Commission and the Council did not require that their donated 
funds be deposited in the Treasury, and the two entities were free to 
invest their donated funds in non-Treasury, interest-bearing accounts.  
This is not the case here.  Pub. L. No. 103-32 requires that both 
donated funds and other funds available to the Commission for 
establishing the World War II Memorial be deposited in the special 
fund in the Treasury created for this purpose.  

In summary, the legislation governing the Commission's establishing of 
the World War II Memorial does not contain the provisions found in the 
legislation governing the Columbus Commission that authorized adoption 
of procurement rules unconstrained by the FPASA and FAR.  Also, unlike 
the legislation and legislative history applicable to the Holocaust 
Memorial Council, Pub. L. No. 103-32 and its legislative history does 
not establish that the Commission was to be analogous to the 
Smithsonian or otherwise have broad authority to expend its donated 
funds free of the strictures generally applicable a federal agency's 
use of government funds.  In contrast, the specific statutory 
provisions requiring that the donated and other funds available to the 
Commission for the World War II Memorial be deposited in and invested 
by the Treasury support the conclusion that Congress did not intend 
that the Commission have the unconstrained authority available to the 
Columbus Commission and the Holocaust Memorial Council.

Accordingly, under the current statutory provisions, the Commission 
should comply with the requirements of the FPASA and its implementing 
regulations in the FAR when contracting with either donated or other 
funds available for the establishment of the World War II Memorial 
pursuant to Pub. L. No. 103-32.

/s/Robert P. Murphy
for Comptroller General
of the United States   

1. Act of March 3, 1923, ch. 283, 42 Stat. 1509, the current 
provisions of which are now codified in 36 U.S.C. ch. 8.

2. Section 2 of Pub. L. No. 103-32 establishes an advisory board to 
assist the Commission with promoting the memorial, encouraging private 
donations, and advising on the site and design of the memorial.  The 
advisory board has no control over expenditure of the funds.

3. An "executive agency" for purposes of FPASA is "any executive 
department or independent establishment in the executive branch of the 
Government . . . . "40 U.S.C.  sec.  472.  Section 252(a) of Title 41 
excludes from the application of subchapter IV, (1) the Department of 
Defense, the Coast Guard, and the National Aeronautics and Space 
Administration; or (2) "when this subchapter is made inapplicable 
pursuant to section 474 of Title 40 or any other law. . . ."  The 
Commission falls within the definition of "executive agency" and is 
not among the agencies statutorily excluded.