[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[F. Permissible Limitations on Use of Funds]
[Â§ 71. Military Contracts]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 6416-6421]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
               F. PERMISSIBLE LIMITATIONS ON USE OF FUNDS
 
Sec. 71.--Military Contracts

Conventional Powerplant for Ship

Sec. 71.1 To a bill appropriating funds for defense procurement, an 
    amendment providing that none of the funds therein shall be 
    available for paying the cost of a conventional powerplant for a 
    designated ship was held to be a proper limitation and in order 
    even though it was apparent that there were no funds in the bill 
    for the ship in question.

    On Apr. 22, 1964,(5) the Committee of the Whole was 
considering H.R. 10939, a Department of Defense appropriation bill. A 
point of order against an amendment was overruled as follows:
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 5. 110 Cong. Rec. 8802, 88th Cong. 2d Sess.
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        Amendment offered by Mr. [Craig] Hosmer [of California]: On 
    page 42, line 18, after line 18 insert a new section 540--and 
    renumber the following sections--to read as follows:
        ``None of the funds appropriated herein shall be available for 
    paying the cost of a conventional powerplant for CVA-67.''
        Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I make the 
    point of order that there are no funds in this bill for an aircraft 
    carrier.
        The Chairman: (6) Does the gentleman desire to be 
    heard on the point of order?
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 6. Eugene J. Keogh (N.Y.).
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        Mr. Hosmer: Yes, I do.
        The Chairman: The Chair will be pleased to hear him.
        Mr. Hosmer: My point is, It is irrelevant whether or not there 
    are any funds in this bill. An amendment of this nature will lie 
    irrespective.
        The Chairman: The Chair is ready to rule. . . .
        . . . Apparently the only basis for that point of order is that 
    there are no funds in the pending bill to accomplish that which is 
    sought to be accomplished by the amendment. As futile, therefore, 
    as the amendment might be, it is in fact a limitation of the funds 
    herein appropriated and the Chair therefore overrules the point of 
    order.

Retired Military Officers Employed by Defense Contractors; Incidental 
    Duties Imposed on Officials

Sec. 71.2 Where the manifest intent of a proposed amendment is to 
    impose a negative limitation on the use of funds

[[Page 6417]]

    appropriated in the bill, the implication that the administration 
    of the limitation will impose certain incidental burdens on 
    executive officers does not destroy the character of the 
    limitation. For example, an amendment providing that none of the 
    funds appropriated in a bill could be used to enter into contracts 
    with any concern having on its payroll a retired or inactive 
    military officer was held to be a limitation and in order.

    On June 3, 1959,(7) the Committee of the Whole was 
considering H.R. 7454, a Department of Defense appropriation bill. The 
Clerk read as follows, and proceedings ensued as indicated below:
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 7. 105 Cong. Rec. 9741, 9742, 86th Cong. 1st Sess.
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        Construction of Ships, Military Sea Transportation Service, 
                           Department of Defense

        The appropriation to the Department of Defense for 
    ``Construction of ships, Military Sea Transportation Service,'' 
    shall not be available for obligation after June 30, 1959.
        Mr. [Alfred E.] Santangelo [of New York]: Mr. Chairman, I offer 
    an amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Santangelo: On page 25, after line 
        17, add new section, as follows:

                               General Provisions

            ``Sec. 301. None of the funds contained in this Title may 
        be used to enter into a contract with any person, organization, 
        company or concern which provides compensation to a retired or 
        inactive military or naval general officer who has been an 
        active member of the military forces of the United States 
        within 5 years of the date of enactment of this act.''. . .

        Mr. [Gerald R.] Ford [of Michigan]: Mr. Chairman, it is 
    legislation on an appropriation bill. I will reserve a point of 
    order. . . .
        Mr. Chairman, I renew my point of order. . . .
        The Chairman: (8) The Chair is prepared to rule. . . 
    .
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 8. Eugene J. Keogh (N.Y.).
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        It is obvious that the intent of this amendment is to impose a 
    limitation on the expenditure of the funds here appropriated, and 
    while the point might be made that imposing limitations will impose 
    additional burdens, it is nevertheless the opinion of the Chair 
    clearly a limitation on expenditures, and therefore the Chair 
    overrules the point of order.

    Parliamentarian's Note: In a similar ruling, on May 5, 1960, the 
Chair allowed an amendment stating in part:

        None of the funds contained in this Title may be used to pay or 
    reimburse any Defense Contractor which  . . . within two years from 
    the release from active duty of a retired commissioned officer 
    knowingly permits any such retired commissioned officer to sell or 
    aid in the selling of anything of value to

[[Page 6418]]

    the Department of Defense or an Armed Force of the United 
    States.(9)

 9. 106 Cong. Rec. 9632, 9634-36, 86th Cong. 2d Sess.
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In the current practice, however, it would probably be held that the 
language denying funds to contractors who ``knowingly'' permit retired 
officers to participate in the sales in question constitutes 
legislation, in that it places on administrative officials the 
additional burden of making findings as to the intent or state of 
knowledge of the defense contractors described.

Resale of Subsidized Commodities

Sec. 71.3 An amendment to the war agencies appropriation bill providing 
    that no part of the appropriation in the pending bill shall be used 
    for payment to any person who pays any subsidy, authorizes the 
    payment of a subsidy, or participates in any of several stated 
    manners in the payment of subsidies involving the purchase of any 
    commodity by the government for the purpose of its resale at a 
    lower price than that paid by the government was held to be a 
    proper limitation and in order.

    On June 18, 1943,(10) the Committee of the Whole was 
considering H.R. 2968. The Clerk read as follows:
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10. 89 Cong. Rec. 6111, 78th Cong. 1st Sess.
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        Salaries and expenses: For all necessary expenses of the Office 
    of Price Administration in carrying out the provisions of the 
    Emergency Price Control Act of 1942, as amended by the act of 
    October 2, 1942 (50 U.S.C. App. 901), and the provisions of the act 
    of May 31, 1941 (55 Stat. 236), as amended by the Second War Powers 
    Act, 1942 (50 U.S.C. App. 622), and all other powers, duties, and 
    functions which may be lawfully delegated to the Office of Price 
    Administration . . . $165,000,000 . . . [Provided], That no part of 
    this appropriation shall be available for making any subsidy 
    payments: Provided further, That no part of this appropriation 
    shall be used to enforce any maximum price or prices on any 
    agricultural commodity or any commodity processed or manufactured 
    in whole or substantial part from any agricultural commodity unless 
    and until (1) the Secretary of Agriculture has determined and 
    published for such agricultural commodity the prices specified in 
    section 3(a) of the Emergency Price Control Act of 1942; (2) in 
    case of a comparable price for such agricultural commodity, the 
    Secretary of Agriculture has held public hearings and determined 
    and published such comparable price in the manner prescribed by 
    section 3(b) of said act; and (3) the Secretary of Agriculture has 
    determined after investigation and proclaimed that the maximum 
    price or prices so established on any

[[Page 6419]]

    such agricultural commodity will reflect to the producer of such 
    agricultural commodity a price in conformity with section 3(c) of 
    said act: Provided further, That any employee of the Office of 
    Price Administration is authorized and empowered, when designated 
    for the purpose by the head of the agency, to administer to or take 
    from any person an oath, affirmation, or affidavit when such 
    instrument is required in connection with the performance of the 
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    functions or activities of said Office.

    An amendment was offered, as follows: (11)
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11. Id. at p. 6123.
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        Amendment offered by Mr. [Everett M.] Dirksen [of Illinois]: 
    Page 13, after line 3, add the following: ``Provided further, That 
    no part of any appropriation contained herein shall be used for 
    payment of the salary or expense of any person who, directly or 
    indirectly, pays any subsidy of any kind or character whatsoever, 
    or who directs or authorizes the payment of a subsidy, or who 
    participates in the preparation of or calculations for the payment 
    of a subsidy, or who directs any other person to pay or prepare or 
    calculate or supply information for the payment of a subsidy, or 
    any person who, directly or indirectly, collaborates with, 
    consults, cooperates with, or directly or indirectly aids any other 
    Federal agency for the payment or the preparation of a subsidy; or 
    of any person who engages or participates as aforesaid in the 
    preparation, formulation, or carrying out of any plan or scheme 
    involving the purchase of any commodity by the Government for the 
    purpose of its resale at a price lower than that paid by the 
    Government.''
        Mr. [Emanuel] Celler [of New York]: Mr. Chairman, a point of 
    order.
        The Chairman: (12) The gentleman will state it.
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12. John J. Sparkman (Ala.).
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        Mr. Celler: Mr. Chairman, I make the point of order that the 
    amendment offered by the gentleman from Illinois is not germane and 
    is legislation on an appropriation bill. The rule under which this 
    bill was brought into this Chamber waived all points of order with 
    reference to limitations that were engrafted on the bill itself by 
    the Appropriations Committee. For example, a proviso was inserted 
    to the effect that no part of this appropriation shall be available 
    for making any subsidy payments. This type of provision was made 
    impervious to a point of order by the rule which brought this bill 
    into this Chamber, but I believe the rule would not preclude a 
    point of order I now make with reference to the amendment the 
    gentleman from Illinois has offered. So I make the point of order 
    that the amendment is legislation on an appropriation bill and not 
    a mere limitation of amount of appropriation nor a mere limitation 
    of purpose of the appropriation.
        The Chairman: Does the gentleman from Illinois desire to be 
    heard?
        Mr. Dirksen: Yes, Mr. Chairman. The point needs no belaboring. 
    This is purely a limitation.
        The Chairman: The Chair is ready to rule.
        The gentleman from New York makes the point of order against 
    the

[[Page 6420]]

    amendment that it is legislation on an appropriation bill and that 
    it is not germane. The Chair thinks that the amendment is a 
    limitation and is not subject to the point of order, and therefore 
    overrules the point of order.

Inventions From Research and Development

Sec. 71.4 An amendment providing that none of the funds appropriated in 
    the bill may be used to enter into research or development 
    contracts under which new inventions or patents, conceived in the 
    process of performing the contract, do not become the property of 
    the United States was held to be a limitation restricting the 
    availability of funds and in order.

    On May 5, 1960,(13) the Committee of the Whole was 
considering H.R. 11998, which included the appropriation of funds for 
research and development to be carried out directly by government 
personnel and by contract. The following proceedings took place:
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13. 106 Cong. Rec. 9624, 9627, 86th Cong. 2d Sess.
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        Mr. [Harris B.] McDowell [Jr., of Delaware]: Mr. Chairman, I 
    offer an amendment.
        The Clerk read as follows:
        Amendment offered by Mr. McDowell: On page 29, after line 13, 
    insert the following:

            ``Sec. 501. None of the funds appropriated in this Act 
        shall be available for making payments on any research or 
        development contract under which any invention, improvement, or 
        discovery conceived or first actually reduced to practice in 
        the course of performance of such contract or any subcontract 
        thereof, or under which any patent based on such invention, 
        improvement, or discovery, does not become the property of the 
        United States.''
            And renumber the following sections accordingly. . . .

        The Chairman: (14) The gentleman will state his 
    point of order.
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14. Eugene J. Keogh (N.Y.).
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        Mr. [George H.] Mahon [of Texas]: The point of order is that 
    this proposed amendment would imply additional duties beyond the 
    scope of the bill.
        The Chairman: Does the gentleman from Delaware desire to be 
    heard on the point of order?
        Mr. McDowell: Yes; I do, Mr. Chairman.
        Mr. Chairman, I cited to the Chair certain Hinds' and Cannon's 
    precedents which adequately demonstrate that the amendment does not 
    in any way restrict the administrative procedures under the act. It 
    is not retroactive in any sense of the word. With that, I simply 
    leave the matter at this point to the Chair for a ruling.
        The Chairman: The Chair is ready to rule.
        The gentleman from Delaware [Mr. McDowell] offered an amendment 
    in the language heretofore reported, and a point of order was made 
    by the gentleman from Texas [Mr. Mahon] that it was, in effect, 
    legislation on an appropriation bill, imposing additional du

[[Page 6421]]

    ties on the executive branch of the Government.
        The Chair has had an opportunity to reread the language of the 
    amendment and to refer to the precedents applicable, in the opinion 
    of the Chair, thereto. It is the opinion of this occupant of the 
    chair that the amendment offered by the gentleman from Delaware is, 
    in fact, a limitation on the appropriations appropriated in this 
    act, and while it may be argued that the limitation imposed causes 
    or results in additional burdens on the executive branch, in the 
    opinion of this occupant of the chair, that is normal and 
    reasonable to expect in the carrying out of the limitation.
        Therefore, the Chair is constrained to overrule the point of 
    order.
        The point of order is overruled.

Prohibiting Funds for Contracts Containing Specified Clause

Conditions for Dispute Settlement

Sec. 71.5 Language in an appropriation bill providing that no funds in 
    the bill shall be used for the purpose of entering into contracts 
    containing a certain condition was held to be a proper limitation 
    restricting the availability of funds and in order.

    On Apr. 9, 1952,(15) the Committee of the Whole was 
considering H.R. 7391, a Department of Defense appropriation bill. The 
Clerk read as follows:
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15. 98 Cong. Rec. 3891, 82d Cong. 2d Sess.
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        Sec. 635. No funds contained in this act shall be used for the 
    purpose of entering into contracts containing article 15 of the 
    Standard Government Contract, which reads as follows:
        ``Disputes: Except as otherwise specifically provided in this 
    contract, all disputes concerning questions of fact arising under 
    this contract shall be decided by the contracting officer subject 
    to written appeal by the contractor within 30 days to the head of 
    the department concerned or his duly authorized representative, 
    whose decision shall be final and conclusive upon the parties 
    thereto. In the meantime the contractor shall diligently proceed 
    with the work as directed.''
        Mr. [Overton] Brooks [of Louisiana]: Mr. Chairman, I make a 
    point of order against the language in Section 365 on the ground 
    that it is legislation on an appropriation bill.
        The Chairman: (16) If no one desires to be heard on 
    the point of order, the Chair is ready to rule. The Chair holds, 
    after careful consideration of the paragraph to which the gentleman 
    from Louisiana makes a point of order, that the language is a 
    limitation on an appropriation bill and therefore overrules the 
    point of order.
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16. James W. Trimble (Ark.).
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