B-95136
July 16, 1986
1. The General Services Administration is authorized to make repairs
and alterations to leased buildings without regard to the limitation set
forth in Sec. 322 of the Economy Act of 1932, as amended (40 U.S.C.
Sec. 278a (1982)) upon proper determination since section 210 (a) (8) of
the Federal Property and Administrative Services Act of 1949, as
amended, (40 U.S.C. Sec. 490 (a) (8), authorizes repairs and alterations
to leased premises without regard to limitations when Administrator is
otherwise authorized to maintain, operate and protect any building
property or grounds inside or outside the District of Columbia and the
Administrator of General Services is so authorized both as a result of
transfer of authority effected by section 103 of the 1949 Act (40 U.S.C.
Sec. 753) and by language contained in annual appropriation to GSA which
makes funds available to operate, maintain and protect federally-leased
buildings.
2. GSA is not required to obtain prospectus approval for repairs and
alterations to leased buildings by section 7(a) of the Public Buildings
Act of 1959, as amended (40 U.S.C. Sec. 606(a)) since leased buildings
are not "public buildings" for purpose of that act and leases are not
within meaning of "acquisition" for purpose of the 1959 Act.
The Honorable Robert T. Stafford
Chairman, Committee on Environment
and Public Works
United States Senate
Dear Mr. Chairman:
This letter is in response to the request dated September 16, 1985,
signed by you and Senator Lloyd Bentsen, Ranking Minority Member,
seeking clarification of the authority of the General Services
Administration (GSA) to repair and alter leased premises in light of the
Public Buildings Act of 1959 (1959 Act), as amended, 40 U.S.C. Secs.
601-616 (1982) (the source of GSA's authority to repair and alter public
buildings) as well as other provisions of law. During a meeting held
prior to receipt of your formal submission, members of the Committee
staft indicated to representatives of this Office concern over the
position taken by GSA that repairs and alterations to leased premises
were not covered by the prospectus approval procedure contained in the
1959 Act. As explained by the staff, it was GSA's opinion that leased
buildings were not public buildings within the scope of the 1959 Act.
The committee staff members also expressed concern with the position
taken by GSA that based upon section 322 of the Economy Act of 1932, as
amended, 40 U.S.C. Sec. 278a, it has authority independent of the 1959
Act to make repairs and alterations to leased premises. GSA's position
is based upon the decision of this Office appearing at 29 Comp. Gen.
279 (1949). The committee staff expressed the view that 40 U.S.C. Sec.
278a imposed a limitation on spending funds for repairs and alterations
to leased premises but that it did not constitute an authorization to
repair and alter leased premises. Consequently, we were asked to review
these specific issues (including reconsideration of our decision in 29
Comp. Gen. 279, supra) as part of our response to your inquiry.
As agreed to by members of the committee staff and in order to fully
respond to the issues raised, we requested and received a report on this
matter from the Administrator of General Services. His views were
considered during preparation of our response. For the reasons
explained in detail in the enclosed Appendix, we find that GSA does have
authority independent of the 1959 Act to alter and repair leased
premises. We therefore affirm our 1949 decision to that effect. As a
result GSA is not required to obtain prospectus approval for
appropriations in excess of $500,000 for alterations to leased premises
pursuant to section 7(a) of the 1959 Act.
Unless you publicly announce its contents earlier, we will not
distribute copies of this opinion until 30 days from its date.
Sincerely yours,
Comptroller General
of the United States
Enclosure - Appendix
The following discuission provides a historical review of the various
aspects of holdings by the Comptroller General (and his predecessor, the
Comptroller of the Treasury) concerning the authority of Government
officers to expend public funds for repairs and alterations to privately
owned property.
Generally, prior to 1932 it had been the position of the accounting
officers of the Government that permanent improvements to private
property (including leased premises) could not be made using public
funds 1/ unless made pursuant to stipulations in lease agreements that
the alterations, repairs or improvements were part of the consideration
under the lease. 2/ The reasoning was that to permit the improvements
would constitute a gratuity to the owner which Government officials are
not authorized to make in the absence of statutory authority. 3/ While
this would be the case in situations where the Government derived no
benefit from paying for the improvements in question, it was also
realized that in many instances there was a benef it to the Government
as a result of making permanent improvements to private property. It
was therefore recognized that the prohibition was one of public policy,
not statutory prohibition, so that in appropriate circumstances,
alteratons to leased premises would be proper. 4/ Consequently, if
agencies had authority to lease property, they were considered to have
authority to make repairs or improvements thereto as part of the
bargained-for consideration under the lease.
Against this background, the Congress enacted section 322 of the
Economy Act of 1932, 5/ which provided in pertinent part that.
"After June 30, 1932, no appropriation shall be obligated or
expended for the rent of any building or part of a building to be
occuipied for Government purposes at a rental in excess of the per
annum rate of 15 per centum of the fair market value of the rented
premises at the date of the lease under which the premises are to
be occupied by the Government nor for alterations, improvements,
and repairs of the rented premises in excess of 25 per centum of
the amount of the rent for the first year of the rental term, or
for the rental term if less than one year: * * *" 6/
While admittedly the purpose of this provision was to limit the
amount the Government expended in repairs, alterations or improvements
to leased premises, it otherwise left unchanged the basic authority of
Government agencyes to make permanent improvements to privately owned
property. It was identified in later decisions as being both a
limtation on agency authority to repair and improve leased premises and
an authorization to act up to the stated percentage limitations when
making repairs and improvements to leased premises. 7/ These decisions
did not conclude that the inherent authority of Government officers to
make permanent improvements to private property as part of the
bargained-for consideration of a lease was affected by the provision.
8/
Thereafter, when considering the scope of the Economy Act of 1932, we
held that the limitation on repairs, alterations and improvements
applied only to permanent improvements and not to temporary, removable
tenant's fixtures; 9/ that it did not apply to unimproved land; 10/
and that it applied only to alterations and repairs paid for directly by
the GOVERNMENT. 11/
Additionally, immediately following creation of GSA by section 103 of
the Federal Property and Administrative Services Act of 1949 (1949 Act),
as amended, 40 U.S.C. Sec. 753 (1982), the 1949 Act was amended by
addition of a new section 210, which provides as follows:
"Sec. 210. (a) Whenever and to the extent that the
Administrator has been or hereafter may be authorized by any
provision of law other than this subsection to maintain, operate,
and protect any building, property, or grounds situated in or
outside the District of Columbia, including the construiction,
repair, preservation, demolition, furnishing, and equipment
thereof, he is auithorized in the discharge of the duties so
conferred upon him--
* * * * *
"(8) to repair, alter, and improve rented premises, without
regard to the 25 per centum limitation of section 322 of the Act
of June 30, 1932 (47 Stat. 412), as amended, upon a
determination by the Administrator that by reason of circumstances set
forth by the Administrator in such determination the execution of such
work, without reference to such limitation, is advantageous to the
Government in terms of economy, efficiency, or national security.* * *"
(Emphasis supplied.) 40 U.S.C. Sec. 490(a)(8) (1982).
We note that prior to June 30, 1949, the authority to acquire space
for use of Federal agencies (by construction, purchase or leasing) and
the responsibility for custody, control and management of
Government-owned or Government-leased space (with certain exceptions)
was vested in the Federal Works Agency (including its constituent
element, the Public Buildings Administration). 12/ Section 103 of the
1949 Act, as amended, 40 U.S.C. Sec. 753 (1982), transferred to the
Administrator of General Services all functions of the Federal Works
Agency and all agencies thereof (including the Public Buildings
Administration) and all functions of the Public Works Administrator and
the Commissioner of Public Buildings.
We note that section 210 (f) of the 1949 Act, as amended, 40 U.S.C.
Sec. 490(f) (1982), established the Federal Buildings Fund from which
the Congress annually appropriates finds for real property management.
These appropriations are made "available for necessary expenses of real
property management and related activities not otherwise provided for *
* * including operation, maintenance, and protection of federallyowned
and leased buildings." 13/
Thus; there is ample authority for the Administrator of General
Services to make alterations, repairs and improvements to private
property, including leased premises without regard to the limitations
contained in section 322 of the Economy Act of 1932. 14/
Members of the Committee staff have suggested that repairs and
alterations to leased premises are subject to prospectus approval under
section 7 (a) of the 1959 Act on the grounds that alterations to all
public buildings are covered by section 7(a) and that leased premises
are public buildings under the 1959 Act. We have reviewed the 1959 Act
and relevant amendments to the 1959 Act as well as the legislative
histories of these laws but do not find support for this position. Our
review persuades us that repairs and alterations to leased premises are
not subject to prospectus approval under section 7(a) of the 1959 Act.
Section 7(a) of the 1959 Act, as initially enacted provided:
"In order to insure the equitable distribution of public
buildings throughout the United States with due regard for the
comparative urgency of need for such buildings, except as provided
in section 4, no appropriation shall be made to construct any
public building or to acquire any building to be used as a public
building involving an expenditure in excess of $100,000, and no
appropriation shall be made to alter any public building involving
an expenditure in excess of $200,000, if such construction,
alteration, or acquisition has not been approved by resolutions
adopted by the Committee on Public Works of the Senate and House
of Representatives, respectively. 15/ (Emphasis supplied.)
Section 13 of the 1959 Act, which provides definitions for many of
the words or terms used in that Act, does not include a definition for
the word "acquire." Section 3 of the 1959 Act, provides that:
"The Administrator is authorized to acquire, by purchase,
concemnation, donation, exchange, or otherwise, any building and
its site which he determines to be necessary to carry out his
duties under this Act." 16/
The report of the House Committee on public Works explains the
purpose of this provisions as follows:
"The third section authorizes the Administrator to acquire any
building and its site which he determines to be necessary to carry
out his duties under the bill. The Administrator is authorized to
acquire any such building by purchase, condemnation, donation,
exchange or any other fashion which wouid result in the United
States becoming the owner of the property." (Emphasis supplied.)
H.R. Rep. No. 557, 86th Cong., 1st Sess., 7 (1959).
A statement in the Senate Committee on Public Works report
accompanying the bill which ultimately became the 1959 Act also suggests
the finding that building acquisitions under section 3 of the 1959 Act
did not include acquisition through leasing. It follows that prospectus
approvals under section 7 of the 1959 Act, required in connection with
the acquisition of public buildings, likewise did not include proposed
acquisitions by leasing since the same terms or words used in different
sections of the same act should be construed consistently unless there
is clear legislative intent to the contrary.
On the question of whether the term "public building" as used in the
1959 Act should be interpreted as including leased space, we note that
there is no rule governing whether a leased building should be
considered to be a "public building" in construing that term in any
given statute. It is not a word of art.
While section 13(1) of the 1959 Act, 40 U.S.C. Sec. 612 (1982)
defines the term "public building," 17/ it does not mention whether
leased buildings are included within its scope. However, the
legislative history suggests that leased space was not intended to be
included. For example, the Senate report on the bill which ultimately
became the 1959 Act stated as follows concerning section 13:
"This section defines seven terms which are used throughout the
bill in order to insure that they will have the same meaning
throughout the bill. One of the most important of the defined
terms is that of "public buildings." The definition of this term
is substantially that which the Congress has established in the
Public Buildings Act of 1926 and in the various acts which amend
it and which supplement it. The definition is explicit in stating
those buildings which are included within the scope of the bill,
as well as those which are excluded. It is limited to those types
and classes of buildings which historically have been the
responsibility of the Administrator and his predecessors in
function. Further, flexibility in coverage is allowed by
permitting the president to include or exclude buildings or
construction projects which he deems to be justified in the public
interest except that he may not bring a specifically excluded type
of building under the law." S. Rep. No. 694, 86th Cong., 1st
Sess., 8 (1959).
Since the Public Buildings Act of 1926, as amended, was concerned
with the construction or purchase, as opposed to the leasing, of
buildings by the Government, the Senate report supports an
interpretation of the term "public buildings" which would not include
those acquired by lease. In addition, the reports of the House and
Senate Public Works Committees accompanying the 1959 Act focus their
attention upon a historical analysis of laws relating to acquisition of
ownership interest by the Government when speaking of public buildings.
See S. Rep. No. 694, 86th Cong., 1st Sess. 1-3 (1959) and H.R. Rep. No.
557, 86th Cong., 1st Sess., 3-7 (1959). Furthermore, a reading of the
law as passed in 1959 shows the term "public building" is generally used
in conjunction with the words construction or acquisition, but not
leasing. As we have already indicated, the term "acquire" when used in
the 1959 Act does not include acquiring buildings by leasing.
Finally, section 16 of the 1959 Act, as amended, 40 U.S.C. Sec. 615,
provides:
"Nothing in this Act shall be construed to limit or repeal--
(1) existing authorizations for the leasing of buildings by and for
the use of the General Services Administrations * * *."
This provision further demonstrates that the prospectus approval
provision of the 1959 Act, when enacted, did not applyto leased
buildings. Effect of 1972 Amendment to section 7(a) of 1959 Act
The Public Buildings Amendments of 1972 amended the prospectus
approval requirement of section 7(a) of the 1959 Act to read as follows:
"In order to insure the equitable distribution of public
buildings throughout the United States with due regard for the
comparative urgency of need for such buildings, except as provided
in section 4, no appropriation shall be made to construct, alter,
purchase, or to acquire any building to be used as a public
building which involves a total expenditure in excess of $500,000
if such construction, alteration, purchase, or acquisition has not
been approved by resolutions adopted by the Committee on Public
Works of the Senate and House of Representatives, respectively.
No appropriation shall be made to lease any space at an average
annual rental in excess of $500,000 for use for public purposes if
such lease has not been approved by resolutions adopted by the
Committee on Public Works of the Senate and House of
Representatives, respectively." 40 U.S.C. Sec. 606(a) (1982).
While section 7 (a) was thus changed, no change was made to section 3 to
include leasing within the ambit of acquisitions authorized by that
section or to section 13 to specifically include it within the
definition of public buildings.
The amendment quoted above expressly added a separate requirement for
prospectus approval for appropriations made to "lease any space at an
average annual rental in excess of $500,000 for use for public purposes"
rather than including leasing within the first prohibition even though
the first prohibition also was amended to require prospectus approval
prior to appropriations made to "construct, alter, purchase, or to
acquire any building to be used as a public building." In our view, this
demonstrates an intent to distinguish between the use of the term
"public buildings" and the use of the phrase "space for use for public
purposes" in the two prospectus approval requirements. In summary, we
have found that the term, "public buildings", did not include leased
property prior to the 1972 amendments for purposes of the 1959 Act, and
the 1972 amendment to section 7 of the 1959 Act did nothing to change
this. Consequently, since the requirement for prospectus approval for
alterations in excess of $500,000 applies only to alterations to public
buildings, we agree with GSA that it is not required to obtain
prospectus approval of alterations to leased premises.
1/ 5 Comp. Gen. 696 (1926); 5 Comp. Gen. 366 (1925); 2 Comp. Gen.
606 (1923); 6 Comp. Dec. 142 (1899); and, 5 Comp. Dec. 478 (1899).
2/ A-33513, Oct. 10, 1930; 5 Comp. Gen. 696 (1926); 5 Comp. Gen.
366 (1925); 2 Comp. Gen. 606 (1923); 6 Comp. Dec. 943 (1900); 6 Comp.
Dec. 142, 146 (1899); 6 Comp. Dec. 135 (1899); and 3 Comp. Dec. 196
(1896). See 18 Comp. Dec. 70 (1911) holding that the Government would
not be liable for the expenses of permanent improvements or repairs and
alterations to rented buildings unless provided for in the lease.
3/ 6 Comp. Dec. 943, 944 (1900) and 6 Comp. Dec. 135, 141 (1899).
Decisions by the Comptroller General supporting this proposition were
all found to be made since 1932. See, for example, 53 Comp. Gen. 351,
352 (1973)1 42 Comp. Gen. 480 (1963); 39 Comp. Gen. 304, 306 (1959);
38 Comp. Gen. 143 (1958); and 35 Comp. Gen. 715 (1956).
4/ B-198629, July 28, 1980; B-187482, Feb. 17, 1977; 55 Comp. Gen.
872 (1976); 53 Comp. Gen. 351 (1973); 47 Comp. Gen. 61 (1967); 46
Comp. Gen. 25 (1966); and 42 Comp. Gen. 480 (1963).
5 / Act of June 30, 1932, ch. 314, 47 stat. 412, 40 U.S.C. Sec. 278a
(1940).
6/ This provision was intended to address the problem caused by
agencies requesting and receiving extensive repairs to quarters that
were intended for agency occupation only temporarily, pending
construiction of public buildings. S. Rep. No. 756, 72d Cong., 1st
Sess., accompanying the Legislative Branch Appropriation Bill, 1933
(Economy Act), 15(1932).
7/ 53 Comp. Gen. 317 (1973); 42 Comp. Gen. 480 (1963); 29 Comp.
Gen. 279 (1949); 21 Comp. Gen. 906 (1942); and B-198629, July 28,
1980.
8/ See 27 Comp. Gen. 389 (1948) explaining that this provision was
intended to serve as a limitation on prior authority.
9/ 30 Comp. Gen. 76 (1950); 29 Comp. Gen. 279 (1949); 20 Comp.
Gen. 105 (1940); 18 Comp. Gen. 144 (1938); B-71640, Dec. 30, 1947;
and, B-50694, Aug. 2, 1945.
10/ 38 Comp. Gen. 143 (1958) and B-126950, March 12, 1956.
11/ 59 Comp. Gen. 658 (1980).
12/ 40 U.S.C. Secs. 1, 8-13, 14, 15-19, 36, 37a, 285, 304a-304e,
341-348 (1946 and Supp. III 1949).
13/ See for example, 1986, Treasury, Postal Service and General
Government Appropriation Act for 1986, (H.R. 3036) as adopted by section
101 (h) of the Joint Resolution making further continuing appropriations
for the fiscal year 1986, Pub. L. No. 99-109, December 19, 1985, 99
Stat. 1291 and the 1985 Treasury, Postal Service and General Government
Appropriation Act for 1985, (H.R. 5798) as adopted by section 101 (j) of
the Joint Resolution making continuing appropriations for the fiscal
year 1985, Public Law 99-473, October 12, 1984, 98 Stat. 1963.
14/ The limitation on annual rental not exceeding 15 per centum of
the fair market value of the premises at the time of the lease was
permanently suspended in 1983. See our decision to the Federal Aviation
Adminstration-Limits on Rent Payments, B-217884, Feb. 18, 1986, 65 Comp.
Gen. .
15/ Pub. L. No. 86-249, Sec. 7(a), September 9, 1959, 73 Stat. 480,
40 U.S.C. Sec. 606(a) (1964).
16/ 40 U.S.C. Sec. 602 (1982).
17/ 40 U.S.C. Sec. 612(1) provides:
"As used in this chapter--
"(1) The term "public building" means any building, whether for
single or multitenant occupancy, its grounds, approaches, and
appurtenances, which is generally suitable for office or storage
space or both for the use of one or more Federal agencies or mixed
ownership corporations, and shall include: (i) Federal office
buildings, (ii) post office, (iii) customhouses, (iv) courthouses,
(v) appraisers stores, (vi) border inspection facilities, (vii)
warehouses, (viii) record centers, (ix) relocation facilities, and
(x) similar Federal facilities, and (xi) any other buildings or
construction projects the inclusion of which the President may
deem, from time to time hereafter, to be justified in the public
interest; * * *."
B-65821, MAY 29, 1947
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
THE HONORABLE, THE ATTORNEY GENERAL:
MY DEAR MR. CLARK:
REFERENCE IS MADE TO LETTER DATED APRIL 22, 1947, FROM THE ASSISTANT
TO THE ATTORNEY GENERAL, AS FOLLOWS:
"THE DEPARTMENT OF JUSTICE, IN COMMON WITH OTHER AGENCIES WITH LAW
ENFORCEMENT POWERS, HAS EXPERIENCED DIFFICULTY IN CARRYING OUT ITS
STATUTORY DUTIES IN CONSEQUENCES OF THE PROHIBITION OF ADVANCE PAYMENTS
CONTAINED IN SECTION 3648, REVISED STATUTES, (31 U.S.C. 529). IT HAS
BEEN NECESSARY MANY TIMES TO REQUIRE OUR OFFICERS AND EMPLOYEES TO
ADVANCE PERSONAL FUNDS TO SECURE REQUIRED DOCUMENTS AND SERVICES IN THE
FURTHERANCE OF OFFICIAL BUSINESS.
"THE REASONING IN YOUR DECISION OF JUNE 9, 1943, B-34946, APPEARS TO
JUSTIFY THE CONCLUSION THAT IF AN AGENCY REQUIRES THE FURNISHING OF
SERVICES, ETC., UNDER CIRCUMSTANCES IN WHICH THEY CANNOT BE PROCURED
EXCEPT BY PAYMENT IN ADVANCE, SUCH PAYMENTS WILL NOT BE DEEMED TO BE IN
VIOLATION OF SECTION 3648, REVISED STATUTES. THE DECISION, OF COURSE,
IS CONFINED TO PAYMENT OF COURT COSTS AND INDIVIDUAL EXPENSES IN ADVANCE
WHEN THE LITIGATION IS IN STATE COURTS IN STATES WHICH REQUIRE PAYMENT
IN ADVANCE.
"THE DEPARTMENT PROPOSES TO ISSUE A CIRCULAR TO ITS FIELD EMPLOYEES,
PRINCIPALLY UNITED STATES ATTORNEYS AND THEIR STAFFS, AND THE DISBURSING
OFFICERS OF THE COURTS, SUBSTANTIALLY ALONG THE LINES OF THE ENCLOSED
DRAFT. IT WILL BE OBSERVED THAT THE CIRCULAR IS PREDICATED UPON
COMPLIANCE WITH LOCAL LAW. YOUR DECISION IS LIMITED TO THE RESTRICTIONS
ON FEDERAL ACTIVITIES BY STATE LEGISLATION. HOWEVER, IT OFTENTIMES
HAPPENS THAT FEDERAL OFFICERS ARE REQUIRED TO PROCURE OFFICIAL
TRANSCRIPTS FROM STATE EMPLOYEES, NOT NECESSARILY CONNECTED WITH THE
COURTS, WHO DEMAND PAYMENT IN ADVANCE. MANY TIMES, THESE DOCUMENTS ARE
REQUIRED IN PREPARATION FOR A CASE OR DURING THE COURSE OF AN
INVESTIGATION OUT OF WHICH A CASE MAY GROW. IN THE LATTER SITUATION, IT
MAY TURN OUT THAT THE FACTS DEVELOPED DO NOT JUSTIFY THE FILING OF AN
INFORMATION OR THE PROCUREMENT OF AN INDICTMENT. YOUR ADVICE IS
THEREFORE RESPECTFULLY REQUESTED ON THE FOLLOWING QUESTIONS:
"1. WILL YOUR OFFICE BE REQUIRED TO OBJECT TO THE ISSUANCE OF A
CIRCULAR IN THE FORM AND WITH THE CONTENT OF THE PRESENT SUGGESTED
DRAFT?
"2. MAY THE REASONING OF THE DECISION OF JUNE 9, 1943, B-34946, BE
EXTENDED TO PROCUREMENT OF SERVICES FROM OTHER THAN COURT OFFICIALS,
SUCH AS THE SECRETARY OF STATE IN FURNISHING CERTIFIED COPIES OF
ARTICLES OF INCORPORATION OR OF OTHER OFFICIALS IN SUPPLYING RECORDS OF
BIRTHS, DEATH, MARRIAGES, ETC.?
"3. CAN THE REASONING OF THE CITED DECISION BE EXTENDED TO THE
PROCURING OF DOCUMENTS AND RECORDS WHEN NEEDED IN THE COURSE OF AN
INVESTIGATION, REGARDLESS OF WHETHER A CASE HAS BEEN OR IS ULTIMATELY
FILED?
"4. IT IS ASSUMED THAT IF A STATE RECORD IS REQUIRED FOR USE IN A
FEDERAL COURT AND PAYMENT IN ADVANCE IS DEMANDED, THERE WILL BE NO
OBJECTION TO SUCH ADVANCE PAYMENT. IT THIS CORRECT?
"YOUR RESPONSE TO THESE SEVERAL QUESTIONS WILL BE APPRECIATED."
THE REFERRED-TO DRAFT OF A PROPOSED CIRCULAR READS AS FOLLOWS:
"IN MANY PLACES THE STATE LAW REQUIRES THAT THE FEES OF STATE, COUNTY
OR MUNICIPAL OFFICERS FOR CERTAIN SERVICES BE PAID IN ADVANCE. SINCE
SECTION 3648, REVISED STATUTES OF THE UNITED STATES, (31 U.S.C. 529)
FORBIDS ADVANCE PAYMENTS BY THE FEDERAL GOVERNMENT, IT HAS BEEN
NECESSARY FOR FEDERAL OFFICERS TO PAY THESE FEES FROM THEIR PERSONAL
FUNDS FOR LATER REIMBURSEMENT.
"IT WILL NO LONGER BE REQUIRED THAT UNITED STATES ATTORNEYS AND
MARSHALS PAY THESE FEES FROM THEIR PERSONAL FUNDS. IT IS REASONABLE TO
ASSUME THAT IN AUTHORIZING THE AGENCY TO PARTICIPATE IN SUITS OR LEGAL
PROCEEDINGS IN STATE COURTS, THE CONGRESS INTENDED THAT PAYMENT OF COURT
COSTS SHOULD BE MADE AS REQUIRED BY THE STATE LAW, NOTWITHSTANDING THE
PROVISIONS OF SECTION 3648, REVISED STATUTES.
"ADVANCE PAYMENTS MAY BE MADE FROM APPROPRIATED FUNDS WHEN AUTHORIZED
UPON A SHOWING OF NECESSITY. THE VOUCHER SHOULD BE SUPPORTED BY THE
AUTHORIZATION AND A REFERENCE TO THIS CIRCULAR, AS WELL AS THE REFERENCE
TO THE STATE STATUTE(S) PRESCRIBING THE FEE AND REQUIRING THE ADVANCE
PAYMENT. IN ADDITION, THE VOUCHER SHOULD CONTAIN THE CERTIFICATE,
SIGNED BY THE OFFICIAL PROCURING THE SERVICES, 'I CERTIFY THAT THIS
ADVANCE PAYMENT IS NECESSARY IN THE PUBLIC INTEREST.'
"ADVANCE PAYMENTS ARE TO BE MADE ONLY WHEN SO REQUIRED BY LOCAL LAW.
IF PAYMENTS MAY BE MADE AFTER THE SERVICES HAVE BEEN RENDERED, THERE CAN
BE NO CHANGE IN THE PRESENT METHOD OF PAYMENT FOLLOWING COMPLETION OF
SERVICE."
IN THE CITED DECISION OF JUNE 9, 1943, B-34946, IT WAS POINTED OUT
THAT, AS THE FEDERAL AGENCY THERE INVOLVED WAS AUTHORIZED BY STATUTE TO
RESORT TO LITIGATION IN THE STATE COURTS AND THAT IN DOING SO IT WAS
CONFRONTED WITH HE NECESSITY OF ADVANCING CERTAIN FEES AND COURT COSTS
IN COMPLIANCE WITH THE REQUIREMENTS OF THE STATE LAWS, IT WAS REASONABLE
TO ASSUME THAT, IN AUTHORIZING THE AGENCY TO PARTICIPATE IN SUITS OR
LEGAL PROCEEDINGS IN STATE COURTS, THE CONGRESS INTENDED THAT PAYMENT OF
COURT COSTS SHOULD BE MADE IN CONFORMITY WITH STATE LAW, NOTWITHSTANDING
THE PROVISIONS OF SECTION 3648, REVISED STATUTES. ACCORDINGLY, THERE
WAS AUTHORIZED THE PAYMENT IN ADVANCE OF FEES AND OTHER ITEMS OF EXPENSE
REQUISITE TO LITIGATION IN STATE COURTS IN COMPLIANCE WITH THE
REQUIREMENTS OF STATE LAW.
THE MATTERS PRESENTED IN THE ABOVE-QUOTED LETTER WOULD NOT APPEAR TO
DIFFER IN ANY SUBSTANTIAL RESPECT FROM THOSE INVOLVED IN THE DECISION OF
JUNE 9, 1943. IT IS RECOGNIZED THAT YOUR DEPARTMENT, IN CONNECTION WITH
THE PROSECUTION OF ITS LAW ENFORCEMENT FUNCTIONS, NECESSARILY REQUIRES
OFFICIAL TRANSCRIPTS OF DOCUMENTS AND RECORDS IN THE CUSTODY OF STATE,
COUNTY OR MUNICIPAL OFFICERS, AND THAT SUCH FUNCTIONS SUBSTANTIALLY WILL
BE IMPEDED UNLESS PAYMENT IN ADVANCE FOR SUCH TRANSCRIPTS WHERE REQUIRED
BY LOCAL LAW MAY BE MADE. WHILE THE SAID DECISION OF JUNE 9, 1943, WAS
RESTRICTED TO PAYMENTS IN ADVANCE TO COURT OFFICIALS, NO REASON IS
PERCEIVED WHY THE PRINCIPLE THEREOF MAY NOT PROPERLY BE EXTENDED TO
OTHER STATE AND LOCAL OFFICIALS. IN THAT CONNECTION, THERE WOULD APPEAR
TO BE APPOSITE HERE STATEMENT MADE IN DECISION OF JULY 19, 1943,
B-35670, AS FOLLOWS:
"SECTION 3648, REVISED STATUTES, PROHIBITS THE DISBURSEMENT OF PUBLIC
FUNDS IN ADVANCE OF THE RENDERING OF SERVICES OR DELIVERY OF MATERIALS
FOR WHICH PAYMENT IS MADE. THE PRIMARY PURPOSE OF SAID STATUTE, OF
COURSE, IS OBVIOUS. THE DANGER INHERENT IN AN ADVANCE OF MONEYS PRIOR
TO THE RENDERING OF SERVICE OR DELIVERY OF MATERIALS UNDER A CONTRACT IS
THE POSSIBILITY OF FAILURE OF PERFORMANCE ON THE PART OF THE CONTRACTOR
AND HIS REFUSAL OR INABILITY TO REFUND THE MONEYS SO ADVANCED. HOWEVER,
HAVING REGARD FOR THE ESTABLISHED RESPONSIBILITY OF A STATE, THAT DANGER
WOULD SEEM TO BE LESS REAL WHERE A STATE IS THE CONTRACTOR UNDERTAKING
TO RENDER SERVICES UNDER AN AGREEMENT WITH THE UNITED STATES ***." SEE,
ALSO, 25 COMP.GEN. 834.
ACCORDINGLY, I HAVE TO ADVISE THAT, SO FAR AS THIS OFFICE IS
CONCERNED, NO OBJECTION WILL BE INTERPOSED TO THE ADVANCE PAYMENT
PROCEDURE CONTEMPLATED BY THE PROPOSED CIRCULAR, ABOVE QUOTED, IT BEING
NOTED THEREFROM THAT SUCH PAYMENTS ARE TO BE MADE ONLY WHEN REQUIRED BY
LOCAL LAW, IN THE ABSENCE OF WHICH PAYMENTS IN ARREARS WILL CONTINUE TO
BE MADE. THE FIRST QUESTION SET FORTH IN THE LETTER OF APRIL 22, 1947,
IS ANSWERED ACCORDINGLY, AND QUESTIONS 2, 3 AND 4 ARE ANSWERED IN THE
AFFIRMATIVE.
B-65821, MAY 29, 1947
PRECIS UNAVAILABLE
THE HONORABLE,
THE ATTORNEY GENERAL.
MY DEAR MR. CLARK:
TRANSCRIPTS FROM STATE EMPLOYEES, NOT NECESSARILY CONNECTED WITH THE
COURTS, WHO DEMAND PAYMENT IN ADVANCE. MANY TIMES, THESE DOCUMENTS ARE
REQUIRED IN PREPARATION FOR A CASE OR DURING THE COURSE OF AN
INVESTIGATION OUT OF WHICH A CASE MAY GROW. IN THE LATTER SITUATION, IT
MAY TURN OUT THAT THE FACTS DEVELOPED DO NOT JUSTIFY THE FILING OF AN
INFORMATION OR THE PROCUREMENT OF AN INDICTMENT. YOUR ADVICE IS
THEREFORE RESPECTFULLY REQUESTED ON THE FOLLOWING QUESTIONS:
"1. WILL YOUR OFFICE BE REQUIRED TO OBJECT TO THE ISSUANCE OF A
CIRCULAR IN THE FORM AND WITH THE CONTENT OF THE PRESENT SUGGESTED
DRAFT?
"2. MAY THE REASONING OF THE DECISION OF JUNE 9, 1943, B-34946, BE
EXTENDED TO PROCUREMENT OF SERVICES FROM OTHER THAN COURT OFFICIALS,
SUCH AS THE SECRETARY OF STATE IN FURNISHING CERTIFIED COPIES OF
ARTICLES OF INCORPORATION OR OF OTHER OFFICIALS IN SUPPLYING RECORDS OF
BIRTHS, DEATHS, MARRIAGES, ETC.?
"3. CAN THE REASONING OF THE CITED DECISION BE EXTENDED TO THE
PROCURING OF DOCUMENTS AND RECORDS WHEN NEEDED IN THE COURSE OF AN
INVESTIGATION, REGARDLESS OF WHETHER A CASE HAS BEEN OR IS ULTIMATELY
FILED?
"4. IT IS ASSUMED THAT IF A STATE RECORD IS REQUIRED FOR USE IN A
FEDERAL COURT AND PAYMENT IN ADVANCE IS DEMANDED, THERE WILL BE NO
OBJECTION TO SUCH ADVANCE PAYMENT. IS THIS CORRECT?
"YOUR RESPONSE TO THESE SEVERAL QUESTIONS WILL BE APPRECIATED."
THE REFERRED-TO DRAFT OF A PROPOSED CIRCULAR READS AS FOLLOWS:
"IN MANY PLACES THE STATE LAW REQUIRES THAT THE FEES OF STATE, COUNTY
OR MUNICIPAL OFFICERS FOR CERTAIN SERVICES BE PAID IN ADVANCE. SINCE
SECTION 3648, REVISED STATUTES OF THE UNITED STATES, (31 U.S.C. 529)
FORBIDS ADVANCE PAYMENTS BY THE FEDERAL GOVERNMENT, IT HAS BEEN
NECESSARY FOR FEDERAL OFFICERS TO PAY THESE FEES FROM THEIR PERSONAL
FUNDS FOR LATER REIMBURSEMENT.
"IT WILL NO LONGER BE REQUIRED THAT UNITED STATES ATTORNEYS AND
MARSHALS PAY THESE FEES FROM THEIR PERSONAL FUNDS. IT IS REASONABLE TO
ASSUME THAT IN AUTHORIZING THE AGENCY TO PARTICIPATE IN SUITS OR LEGAL
PROCEEDINGS IN STATE COURTS, THE CONGRESS INTENDED THAT PAYMENT OF COURT
COSTS SHOULD BE MADE AS REQUIRED BY THE STATE LAW, NOTWITHSTANDING THE
PROVISIONS OF SECTION 3648, REVISED STATUTES.
"ADVANCE PAYMENTS MAY BE MADE FROM APPROPRIATED FUNDS WHEN AUTHORIZED
UPON A SHOWING OF NECESSITY. THE VOUCHER SHOULD BE SUPPORTED BY THE
AUTHORIZATION AND A REFERENCE TO THIS CIRCULAR, AS WELL AS THE REFERENCE
TO THE STATE STATUTE(S) PRESCRIBING THE FEE AND REQUIRING THE ADVANCE
PAYMENT. IN ADDITION, THE VOUCHER SHOULD CONTAIN THE CERTIFICATE,
SIGNED BY THE OFFICIAL PROCURING THE SERVICES, 'I CERTIFY THAT THIS
ADVANCE PAYMENT IS NECESSARY IN THE PUBLIC INTEREST.'
"ADVANCE PAYMENTS ARE TO BE MADE ONLY WHEN SO REQUIRED BY LOCAL LAW.
IF PAYMENTS MAY BE MADE AFTER THE SERVICES HAVE BEEN RENDERED, THERE CAN
BE NO CHANGE IN THE PRESENT METHOD OF PAYMENT FOLLOWING COMPLETION OF
SERVICE."
IN THE CITED DECISION OF JUNE 9, 1943, B-34946, IT WAS POINTED OUT
THAT, AS THE FEDERAL AGENCY THERE INVOLVED WAS AUTHORIZED BY STATUTE TO
RESORT TO LITIGATION IN THE STATE COURTS AND THAT IN DOING SO IT WAS
CONFRONTED WITH THE NECESSITY OF ADVANCING CERTAIN FEES AND COURT COSTS
IN COMPLIANCE WITH THE REQUIREMENTS OF THE STATE LAWS, IT WAS REASONABLE
TO ASSUME THAT, IN AUTHORIZING THE AGENCY TO PARTICIPATE IN SUITS OR
LEGAL PROCEEDINGS IN STATE COURTS, THE CONGRESS INTENDED THAT PAYMENT OF
COURT COSTS SHOULD BE MADE IN CONFORMITY WITH STATE LAW, NOTWITHSTANDING
THE PROVISIONS OF SECTION 3648, REVISED STATUTES. ACCORDINGLY, THERE
WAS AUTHORIZED THE PAYMENT IN ADVANCE OF FEES AND OTHER ITEMS OF EXPENSE
REQUISITE TO LITIGATION IN STATE COURTS IN COMPLIANCE WITH THE
REQUIREMENTS OF STATE LAW.
THE MATTERS PRESENTED IN THE ABOVE-QUOTED LETTER WOULD NOT APPEAR TO
DIFFER IN ANY SUBSTANTIAL RESPECT FROM THOSE INVOLVED IN THE DECISION OF
JUNE 9, 1943. IT IS RECOGNIZED THAT YOUR DEPARTMENT, IN CONNECTION WITH
THE PROSECUTION OF ITS LAW ENFORCEMENT FUNCTIONS, NECESSARILY REQUIRES
OFFICIAL TRANSCRIPTS OF DOCUMENTS AND RECORDS IN THE CUSTODY OF STATE,
COUNTY OR MUNICIPAL OFFICERS, AND THAT SUCH FUNCTIONS SUBSTANTIALLY WILL
BE IMPEDED UNLESS PAYMENT IN ADVANCE FOR SUCH TRANSCRIPTS WHERE REQUIRED
BY LOCAL LAW MAY BE MADE. WHILE THE SAID DECISION OF JUNE 9, 1943, WAS
RESTRICTED TO PAYMENTS IN ADVANCE TO COURT OFFICIALS, NO REASON IS
PERCEIVED WHY THE PRINCIPLE THEREOF MAY NOT PROPERLY BE EXTENDED TO
OTHER STATE AND LOCAL OFFICIALS. IN THAT CONNECTION, THERE WOULD APPEAR
TO BE APPOSITE HERE THE STATEMENT MADE IN DECISION OF JULY 19, 1943,
B-35670, AS FOLLOWS:
"SECTION 3648, REVISED STATUTES, PROHIBITS THE DISBURSEMENT OF PUBLIC
FUNDS IN ADVANCE OF THE RENDERING OF SERVICES OR DELIVERY OF MATERIALS
FOR WHICH PAYMENT IS MADE. THE PRIMARY PURPOSE OF SAID STATUTE, OF
COURSE, IS OBVIOUS. THE DANGER INHERENT IN AN ADVANCE OF MONEYS PRIOR
TO THE RENDERING OF SERVICE OR DELIVERY OF MATERIALS UNDER A CONTRACT IS
THE POSSIBILITY OF FAILURE OF PERFORMANCE ON THE PART OF THE CONTRACTOR
AND HIS REFUSAL OR INABILITY TO REFUND THE MONEYS SO ADVANCED. HOWEVER,
HAVING REGARD FOR THE ESTABLISHED RESPONSIBILITY OF A STATE, THAT DANGER
WOULD SEEM TO BE LESS REAL WHERE A STATE IS THE CONTRACTOR UNDERTAKING
TO RENDER SERVICES UNDER AN AGREEMENT WITH THE UNITED STATES ***."
SEE, ALSO, 25 COMP.GEN. 834.
ACCORDINGLY, I HAVE TO ADVISE THAT, SO FAR AS THIS OFFICE IS
CONCERNED, NO OBJECTION WILL BE INTERPOSED TO THE ADVANCE PAYMENT
PROCEDURE CONTEMPLATED BY THE PROPOSED CIRCULAR, ABOVE QUOTED, IT BEING
NOTED THEREFROM THAT SUCH PAYMENTS ARE TO BE MADE ONLY WHEN REQUIRED BY
LOCAL LAW, IN THE ABSENCE OF WHICH PAYMENTS IN ARREARS WILL CONTINUE TO
BE MADE. THE FIRST QUESTION SET FORTH IN THE LETTER OF APRIL 22, 1947,
IS ANSWERED ACCORDINGLY, AND QUESTIONS 2, 3 AND 4 ARE ANSWERED IN THE
AFFIRMATIVE.
B-61076, FEB 25, 1947
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
LIEUTENANT COLONEL R.J. DESMOND, DISBURSING OFFICER, C. OF E.,
THROUGH CHIEF OF ENGINEERS, WAR DEPARTMENT.:
DEAR COLONEL DESMOND:
THERE WAS RECEIVED BY REFERENCE FROM THE CHIEF OF ENGINEERS YOUR
LETTER OF AUGUST 12, 1946, REQUESTING DECISION AS TO WHETHER PAYMENT IS
AUTHORIZED FROM THE APPROPRIATION, 12 X 3000, MAINTENANCE AND
IMPROVEMENT OF EXISTING RIVER AND HARBOR WORKS, ON A VOUCHER DATED
AUGUST 8, 1946, STATED IN FAVOR OF COMMERCIAL STATIONERY CO., 2 RECTOR
STREET, NEW YORK, NEW YORK, IN THE AMOUNT OF $13.80, COVERING THE COST
OF PING PONG PADDLES AND BALLS ORDERED ON JULY 31, 1946, FOR USE IN THE
RECREATION ROOM OF A SEAGOING DREDGE UNDER THE JURISDICTION OF THE NEW
YORK DISTRICT OFFICE OF THE UNITED STATES ENGINEER OFFICE.
YOU STATE THAT SUBPARAGRAPH 5228.15(G) OF REVISED ORDERS AND
REGULATIONS, WAR DEPARTMENT, CORPS OF ENGINEERS, CHAPTER V, SECTION 10,
REQUIRES THAT A ROOM SUITABLE FOR RECREATIONAL PURPOSES BE PRORATED ON
EACH SEAGOING DREDGE WITHIN THE JURISDICTION OF DISTRICT ENGINEERS
UNLESS SUCH REQUIREMENT BE WAIVED BY THE CHIEF OF ENGINEERS; THAT
SUITABLE SPACE ON ONE OF THE DREDGES WITHIN THE JURISDICTION OF THE NEW
YORK DISTRICT OFFICE NOW IS BEING UTILIZED AS A RECREATION ROOM AND THAT
IT IS DESIRED TO EQUIP SUCH ROOM AS WELL AS SIMILAR ROOMS ON OTHER
DREDGES WITHIN THE JURISDICTION OF SUCH OFFICE WITH VARIOUS TYPES OF
RECREATIONAL EQUIPMENT SUCH AS MAGAZINES, PING PONG BALLS AND PADDLES,
PUNCHING BAGS AND BOOKS. ALSO, YOU POINT OUT THAT THE MEN EMPLOYED ON
THE SEAGOING DREDGES WITHIN THE JURISDICTION OF THE NEW YORK DISTRICT
ARE AWAY FROM PORT FIVE DAYS AT A TIME, THE SAID DREDGES LEAVING PORT ON
MONDAY NOON AND NOT RETURNING UNTIL THE FOLLOWING SATURDAY NOON; THAT,
DURING SUCH PERIOD, TWENTY-FOUR HOURS AROUND THE CLOCK SEA WATCH SERVICE
CONSISTING OF FOUR HOURS ON DUTY AND EIGHT HOURS OFF IS PERFORMED; THAT
THE WORK CARRIED ON BY THE CREWS, NAMELY, PICKING UP SILT FROM THE
CHANNEL WHILE SAILING AT A RATE OF FOUR MILES PER HOUR, GOING OUT TO
SEA, DUMPING IT, AND RETURNING AGAIN TO THE CHANNEL FOR REPETITION OF
THE SAME OPERATION, IS TEDIOUS; THAT THE AVERAGE MONTHLY LABOR TURNOVER
ON THE SAID DREDGES WAS 10.2 PERCENT FOR THE PERIOD JUNE, 1944, TO
AUGUST, 1946, THE LABOR TURNOVER THEREON HAVING REACHED A HIGH POINT OF
22 PERCENT IN JANUARY, 1946; AND THAT PREDOMINANT AMONG THE REASONS
GIVEN BY EMPLOYEES FOR RESIGNING FROM THEIR WORK ON THE DREDGES HAS BEEN
THE LACK OF RECREATIONAL AND EDUCATIONAL FACILITIES THEREON AND A
CONSEQUENT DESIRE TO SHIP OUT ON "DEEP WATER." FURTHERMORE, YOU CALL
ATTENTION TO THE FACT THAT THE GOVERNMENT, IN OBTAINING THE CLASS OF MEN
EMPLOYED ON THE SAID DREDGES, IS OBLIGED TO COMPETE WITH COMMERCIAL
VESSELS MOST OF THE PERSONNEL OF WHICH IS FURNISHED BY LABOR UNIONS
WHICH ORGANIZATIONS CONSTANTLY ARE STRIVING TO IMPROVE THE WORKING
CONDITIONS OF THEIR MEMBERS. AS A CONSEQUENCE, THE PROVIDING OF
RECREATIONAL EQUIPMENT FOR WORKERS EMPLOYED ON THE DISTRICT'S SEAGOING
DREDGES IS DEEMED TO BE NECESSARY IN ORDER TO PREVENT HIGHER TURNOVER ON
SUCH DREDGES FROM REACHING UNDUE PROPORTIONS AND IN ORDER TO MAINTAIN
THE EFFICIENCY AND PRESERVE THE MORALE OF THE MEN EMPLOYED THEREON.
ACCORDINGLY, IT IS STATED AS YOUR BELIEF THAT THE FURNISHING OF
RECREATIONAL EQUIPMENT ON SUCH DREDGES IS REASONABLY INCIDENT TO THE
OPERATION THEREOF AND THAT AN EXPENDITURE INCURRED FOR SUCH PURPOSE
PROPERLY IS TO BE REGARDED AS CHARGEABLE TO THE APPROPRIATION MENTIONED.
ORDINARILY THE PROVIDING OF EQUIPMENT FOR THE RECREATIONAL ACTIVITIES
OF CIVILIAN EMPLOYEES OF THE UNITED STATES CONSTITUTES AN EXPENSE WHICH
IS PERSONAL TO SUCH EMPLOYEES AND MAY NOT BE PAID WITH APPROPRIATED
FUNDS IN THE ABSENCE OF SPECIFIC AUTHORITY THEREFOR OR AUTHORITY BY
NECESSARY IMPLICATION. 18 COMP.GEN. 147. THE APPROPRIATION SOUGHT TO BE
CHARGED HEREIN DOES NOT AUTHORIZE SPECIFICALLY THE PURCHASE OF
RECREATIONAL EQUIPMENT FOR EMPLOYEES ENGAGED IN RIVER AND HARBOR WORK.
HOWEVER, IN VIEW OF THE FACTS SET FORTH IN YOUR LETTER AND THE
DETERMINATION BY THE CHIEF OF ENGINEERS THAT THE FURNISHING OF A
WELL-EQUIPPED RECREATION ROOM FOR THE USE OF CREWS ON SEAGOING DREDGES,
SUCH AS THOSE OPERATING UNDER THE JURISDICTION OF THE NEW YORK DISTRICT,
IS NECESSARY IN ORDER "FOR THE ENGINEER DEPARTMENT AT LARGE TO COMPETE
SUCCESSFULLY WITH COMMERCIAL VESSELS IN THE LABOR MARKET" AND TO
MAINTAIN THE EFFICIENCY AND PRESERVE THE MORALE OF THE CREWS WORKING ON
SUCH DREDGES, THIS OFFICE IS NOT REQUIRED TO OBJECT TO THE
ADMINISTRATIVE DETERMINATION THAT THE OBJECTIVES OF THE PROPOSED
EXPENDITURE REASONABLY MAY BE SAID TO BE BY IMPLICATION, WITHIN THE
PURVIEW OF THE APPROPRIATION FOR THE MAINTENANCE AND IMPROVEMENT OF
RIVER AND HARBOR WORKS.
THE VOUCHER, TOGETHER WITH ATTACHED INVOICE AND PURCHASE ORDER, IS
RETURNED HEREWITH AND YOU ARE ADVISED THAT PAYMENT THEREON IS
AUTHORIZED, IF OTHERWISE CORRECT.
A-51604, AUG 25, 1981
HEADNOTES-UNAVAILABLE
DIGEST:
1974 AMENDMENT TO FOOD STAMP ACT INCREASED PERCENTAGE OF FEDERAL
REIMBURSEMENT TO STATES FOR ADMINISTRATIVE COSTS OF PROGRAM. SECRETARY
OF AGRICULTURE ISSUED REGULATIONS STATING INCREASED RATE WOULD BECOME
EFFECTIVE FOR ALL COSTS INCURRED AFTER OCTOBER 1, 1974. SECRETARY MAY
REIMBURSE ALL STATES, WHETHER ACCOUNTING FOR COSTS ON CASH OR ACCRUAL
BASIS, AT RATE EFFECTIVE WHEN OBLIGATIONS AROSE.
REIMBURSEMENT TO STATES OF FOOD STAMP PROGRAM ADMINISTRATIVE
COSTS:
THE COMMISSIONER OF HUMAN RESOURCES, STATE OF TEXAS, (JOINED BY THE
DEPUTY DIRECTOR, CALIFORNIA DEPARTMENT OF SOCIAL SERVICES), HAS ASKED
THAT WE RECONSIDER OUR DECISION, REIMBURSEMENT TO STATES OF FOOD STAMP
PROGRAM ADMINISTRATIVE COSTS, A-51604, FEBRUARY 19, 1980. THAT CASE
ADDRESSED THE QUESTION OF WHETHER THE DEPARTMENT OF AGRICULTURE IN
REIMBURSING STATES FOR PART OF THEIR ADMINISTRATIVE COSTS IN CARRYING
OUT THE FOOD STAMP PROGRAM, SHOULD REIMBURSE STATES USING A CASH BASIS
METHOD OF ACCOUNTING AT THE RATE EFFECTIVE WHEN THE PAYMENTS WERE
ACTUALLY MADE BY THE STATE, OR AT THE RATE EFFECTIVE WHEN THE
ADMINISTRATIVE COSTS WERE INCURRED, I.E., WHEN A LEGAL OBLIGATION TO PAY
AROSE. BECAUSE THE STATES DID NOT HAVE AN OPPORTUNITY TO PRESENT THEIR
POSITION WHEN WE FIRST CONSIDERED THIS MATTER, WE AGREED TO RECONSIDER.
IN OUR PREVIOUS DECISION, A-51604, FEBRUARY 19, 1980, WE CONCLUDED
THAT AGRICULTURE'S DECISION TO REIMBURSE ALL STATES, REGARDLESS OF
WHETHER THEY USED A CASH BASIS OR ACCRUAL BASIS OF ACCOUNTING, AT THE
RATE IN EFFECT WHEN THE COSTS WERE INCURRED, IS NOT INCONSISTENT WITH
EITHER THE STATUTE OR REGULATIONS. THUS, CITING THE WELL ESTABLISHED
LEGAL PRINCIPLE THAT GREAT DEFERENCE BE GIVEN TO THE INTERPRETATION OF A
STATUTE BY THE AGENCY CHARGED WITH ITS ADMINISTRATION AND THAT THE
AGENCY'S POSITION WILL ONLY BE OVERTURNED IF IT IS FOUND TO BE ARBITRARY
AND CAPRICIOUS, WE SAW NO BASIS TO CHALLENGE AGRICULTURE'S
INTERPRETATION.
THE STATES ARGUE, HOWEVER, THAT A PROPER READING OF THE REGULATIONS
SUGGESTS THAT STATES USING A CASH BASIS METHOD OF ACCOUNTING SHOULD BE
REIMBURSED AT THE RATE IN EFFECT ON THE DATE THE ADMINISTRATIVE COSTS
ARE ACTUALLY PAID. IN REACHING THIS CONCLUSION, THE STATES CONTEND THAT
SECTION 271.2(A) OF THE REGULATIONS, WHICH PROVIDES FOR REIMBURSEMENT AT
THE RATE IN EFFECT WHEN THE COSTS ARE INCURRED, MUST BE READ IN
CONJUNCTION WITH SEVERAL OTHER SECTIONS OF THE REGULATIONS TO DETERMINE
JUST WHEN COSTS ARE CONSIDERED TO BE INCURRED FOR A CASH BASIS STATE.
FIRST, THEY CITE THE REQUIREMENT THAT:
COSTS SHALL BE IN ACCORDANCE WITH PART 275 OF THIS
SUBCHAPTER." 7 C.F.R. SEC. 271.2(C). ADDITIONALLY, THE STATES REFER
TO PART 275, WHICH DEALS GENERALLY WITH PAYMENT OF ADMINISTRATIVE COSTS
OF STATE AGENCIES. SPECIFICALLY, THE STATES POINT TO THE SECTION ON
FINANCIAL REPORTING REQUIREMENTS:
OUTLAYS AND PROGRAM INCOME ON THE SAME ACCOUNTING BASIS,
I.E., CASH OR ACCRUED EXPENDITURE (ACCRUAL), WHICH IS USED
IN MAINTAINING ITS ACCOUNTING RECORDS. THE BASIS USED BY
A STATE AGENCY MUST BE CONSISTENT FOR ALL PROGRAMS IT
ADMINISTERS AND FOR WHICH IT IS CLAIMING AGAINST THE FEDERAL
GOVERNMENT." 7 C.F.R. SEC. 275.9(D)(2).
THE TWO STATES MAINTAIN THAT ANY INTERPRETATION OF SECTION 271.2(A)
SHOULD TAKE INTO CONSIDERATION SECTIONS 271.2(C) AND 275.9(D)(2); AND
THAT -
CONSIDERED AS A WHOLE, IT IS APPARENT THAT PAYMENT FOR
ADMINISTRATIVE COSTS SHOULD BE MADE BY USDA PURSUANT TO
EACH STATE'S CLAIM PROPERLY SUBMITTED ON THE SAME
ACCOUNTING BASIS WHICH THE STATE USES IN MAINTAINING ITS
ACCOUNTING RECORDS CONSISTENT WITH ALL ITS PROGRAMS ***." THUS, TEXAS
AND CALIFORNIA READ SECTIONS 271.2(C) AND 275.9(D)(2) TOGETHER AS
REQUIRING THEM TO SUBMIT CLAIMS FOR ADMINISTRATIVE COSTS ON A CASH
BASIS, AND SEE THIS AS IN TURN REQUIRING AGRICULTURE TO REIMBURSE THEM
ON THE BASIS OF THE RATE IN EFFECT WHEN THE COSTS ARE RECOGNIZED FOR
ACCOUNTING PURPOSES.
AGRICULTURE, ON THE OTHER HAND, SEES NO INCONSISTENCY BETWEEN ITS
REGULATIONS WHICH PERMIT REIMBURSEMENT TO A CASH BASIS STATE ONLY WHEN
THE STATE HAS PAID FOR THE SERVICES IT RECEIVED, AND THE REGULATION
WHICH PEGS THE RATE OF REIMBURSEMENT TO THE STATE AS OF THE DATE THE
ADMINISTRATIVE COSTS WERE ACTUALLY INCURRED BY THE STATE. THE FORMER
REGULATIONS ARE DESIGNED TO RECOGNIZE A STATE'S PREFERRED ACCOUNTING
SYSTEM. THE LATTER REGULATION IS NOT BASED ON ACCOUNTING PRINCIPLES BUT
ON ITS INTERPRETATION OF THE STATUTE. IN ORDINARY PARLANCE, A COST IS
INCURRED WHEN A LEGAL OBLIGATION TO PAY ARISES. THE FACT THAT SOME
STATES CHOOSE TO RECORD THE OBLIGATION IMMEDIATELY AND OTHERS ONLY WHEN
PAYMENT IS MADE IS IMMATERIAL. FOR PURPOSES OF DETERMINING THE PROPER
RATE OF REIMBURSEMENT, THE DATE SHOULD BE BASED ON THE SAME PRINCIPLE
FOR ALL STATES.
WE APPRECIATE THE STATES' POSITION AND RECOGNIZE THAT THE QUESTION IS
A CLOSE ONE. BUT, WE ARE UNABLE TO FIND THAT THE SECRETARY'S
INTERPRETATION IS ARBITRARY, CAPRICIOUS, OR LEGALLY UNTENABLE. IN VIEW
OF THE BROAD DISCRETION IN ADMINISTERING THE PROGRAM GRANTED TO THE
SECRETARY UNDER 7 U.S.C. SEC. 2013(C) AND THE WELL SETTLED RULES OF
STATUTORY INTERPRETATION CITED IN OUR PREVIOUS DECISION, WE UPHOLD HIS
POSITION.
ACCORDINGLY, WE AFFIRM OUR PREVIOUS DECISION.
FILE: B-217178; B-217388 85-1 CPD 141
DATE: February 5, 1985
MATTER OF: Don Strickland's Consultant and Advisory Service
DIGEST:
CONTRACTS - PROTESTS - INTERESTED PARTY REQUIREMENT - DIRECT INTEREST
CRITERION
Protests of solicitation restrictions filed by consultant who
declines to identify its clients, on behalf of which protests were
allegedly filed, are dismissed because under the circumstances the
protester is not an interested party.
Don Strickland's Consultant and Advisory Service (Strickland)
protests the specifications included in invitation for bids (IFB)
DACA63-85-B-0044, issued by the Army Engineer District, Fort Worth,
Texas, and IFB FO5600-84-B-0036, issued by Lowry Air Force Base,
Colorado. The solicitations are for the provision of lodging, meals,
and transportation for Military Entrance and Processing Stations in
Dallas, Texas, and in Denver, Colorado, respectively. The protests are
dismissed.
Strickland contends that the solicitations' "area of consideration"
specifications are unnecessarily restrictive and that they unduly limit
the number of qualified bidders, in that they require that the facility
offered be located within a 2-mile radius of the entrance stations and,
thus, violate Federal Acquisition Regulation (FAR), Section 14.101(a)
and Section 14.407-1, 48 Fed. Reg. 42,102 (1983) (to be codified at 48
C.F.R. Sections 14.101(a) and 14.407-1, respectively. The protester
further contends that since the contractor must furnish all
transportation, the distance of the facility from the entrance station
should not be a significant factor in the evaluation of bids.
Strickland requests that these solicitations be amended to extend the
geographical areas of consideration to at least a 10-mile radius, and
that the bid opening dates be extended to 30 days beyond the effective
date of the requested amendments. Concerning IFB FO5600-84-B-0036, the
protester states that the requested amendment to the solicitation will
"allow adequate competition among small business facilities" and enhance
the potential of the solicitation as a 100-percent small business
set-aside.
Strickland, which is located in Garner, North Carolina, contends that
it is protesting these solicitations as a consultant on behalf of its
clients, which it has declined to name. Strickland insists that the
identity of its clients is a confidential matter and that regulations do
not require disclosure of the names of prospective bidders on behalf of
which a protest may be filed. However, nothing in the record before us
indicates that Strickland actually represents potential bidders for the
subject contracts.
Under our Bid Protest Procedures, a party must be "interested" in
order to have its protest considered by this Office. 4 C.F.R. Section
21.1(a) (1984). Since Strickland has declined to reveal the potential
bidders that it claims to represent and, being located in North
Carolina, does not itself qualify to bid under the subject
solicitations, even if the geographical area limitations were expanded
as requested, the issue to be resolved in this case is whether the
protester is an "interested party" as contemplated by the provisions of
4 C.F.R. Section 21.1(a).
In determining whether a protester is sufficiently interested so as
to permit our consideration, we examine the extent to which there exists
a direct relationship between the questions raised and the party's
asserted interest and the degree to which that interest is established.
National Treasury Employees Union, B-216188, Sept. 10, 1984, 84-2 C.P.D.
Paragraph 278; Kenneth R. Bland, Consultant, B-184852, Oct. 17, 1975,
75-2 C.P.D. Paragraph 242. Where there are intermediate parties that
have a greater interest than the protester, we have generally considered
the protester to be too remote from the cause to establish interest
within the meaning of our Bid Protest Procedures. National Treasury
Employees Union, B-216188, supra, 84-2 C.P.D. Paragraph 278 at 2.
Under this rule, the potential bidders who could bid on these
solicitations, if they were amended as Strickland requests, would be
intermediate parties of greater interest in the expansion of the
geographical limitation of the solicitations. Although a consultant who
represents a bidder or potential bidder, under certain circumstances,
may be considered to have a sufficient interest in the procurement
sought by its client, in the absence of evidence that Strickland, in
fact, represents or is authorized to represent particular bidders,
Strickland has not established its interest in these solicitations and,
therefore, is not an interested party. See Kenneth R. Bland,
Consultant, B-184852, supra, 75-2 C.P.D. Paragraph 242; Professional
Helicopter Pilots Association, B-208031.2, Oct. 22, 1982, 82-2 C.P.D.
Paragraph 363.
We dismiss the protests.
Comptroller General
of the United States
B-40342.2(1) L/M, OCT 21, 1981, OFFICE OF GENERAL COUNSEL
HEADNOTES-UNAVAILABLE
DIGEST:
SECTION 207 OF EQUAL ACCESS TO JUSTICE ACT, PROVIDING THAT JUDGMENT
APPROPRIATION (31 U.S.C. SEC. 724A) WILL BE AVAILABLE ONLY TO EXTENT
PROVIDED IN ADVANCE IN APPROPRIATION ACTS, WAS INTENDED TO PRECLUDE
EXPANDED AVAILABILITY OF JUDGMENT APPROPRIATION, FOR WHICH POINT OF
ORDER HAD BEEN SUSTAINED IN HOUSE DEBATE ON CONFERENCE REPORT.
THEREFORE, AND SINCE THERE IS NO INDICATION OF INTENT TO DIMINISH
EXISTING AVAILABILITY OF 31 U.S.C. SEC. 724A, GAO WILL CONTINUE TO
CERTIFY FOR PAYMENT COURT COSTS AND ATTORNEY'S FEES ALREADY AUTHORIZED
UNDER PRE-EXISTING STATUTES. HOWEVER, ATTORNEY'S FEES NEWLY AUTHORIZED
BY EQUAL ACCESS TO JUSTICE ACT MAY NOT BE PAID UNDER 31 U.S.C. SEC.
724A UNLESS CONGRESS MAKES APPROPRIATION REQUIRED BY SECTION 207.
MR. STEPHEN L. BABCOCK, CONFERENCE OF THE UNITED STATES:
WE HAVE RECEIVED A COPY OF YOUR AUGUST 28, 1981, LETTER ADDRESSED TO
MR. JUDD KUTCHER, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS,
CONCERNING THE EFFECT OF SECTION 207 OF THE EQUAL ACCESS TO JUSTICE ACT.
THE QUESTION YOU RAISE IS WHETHER SECTION 207 WILL BAR THE USE OF THE
PERMANENT JUDGMENT APPROPRIATION, 31 U.S.C. SEC. 724A, FOR THE PAYMENT
OF COURT COSTS WHICH WERE ALREADY AUTHORIZED BEFORE ENACTMENT OF THE
EQUAL ACCESS TO JUSTICE ACT. WHILE NO ONE HAS YET REQUESTED A FORMAL
DECISION ON THE POINT, THE ISSUE IS CERTAINLY ONE WE WILL HAVE TO
CONSIDER. OUR PRELIMINARY VIEW IS THAT SECTION 207 SHOULD NOT AFFECT
THE PAYMENT OF AWARDS AUTHORIZED BY PRE-EXISTING STATUTES.
THE PROBLEM MAY BE OUTLINED AS FOLLOWS:
(1) PRIOR TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. SEC. 2412
AUTHORIZED COURTS TO AWARD COSTS AGAINST THE UNITED STATES, AS
ENUMERATED IN 28 U.S.C. SEC. 1920, BUT NOT INCLUDING ATTORNEY'S FEES.
COSTS AWARDED UNDER 28 U.S.C. SEC. 2412 ARE TO BE PAID "AS PROVIDED IN
SECTION 2414 AND SECTION 2517 OF THIS TITLE FOR THE PAYMENT OF JUDGMENTS
AGAINST THE UNITED STATES" - THAT IS, THEY ARE PAID, UPON CERTIFICATION
BY THE GENERAL ACCOUNTING OFFICE, FROM THE PERMANENT APPROPRIATION FOR
JUDGMENTS CONTAINED IN 31 U.S.C. SEC. 724A.
(2) THE EQUAL ACCESS TO JUSTICE ACT, TITLE II OF PUBLIC LAW 96-481,
WAS ENACTED ON OCTOBER 21, 1980, AND BECAME EFFECTIVE ON OCTOBER 1,
1981. ITS PURPOSE IS TO AUTHORIZE THE AWARDING OF ATTORNEY'S FEES AND
EXPENSES IN A VARIETY OF SITUATIONS, BOTH ADMINISTRATIVE AND JUDICIAL,
WHERE SUCH AWARDS HAD BEEN PREVIOUSLY UNAUTHORIZED UNDER THE SO-CALLED
"AMERICAN RULE." THE NEW LAW DEALT WITH JUDICIAL AWARDS BY AMENDING 28
U.S.C. SEC. 2412. THE AMENDED VERSION RE-ENACTED THE EXISTING
PROVISIONS DEALING WITH COURT COSTS, AND ADDED NEW SECTIONS TO COVER
ATTORNEY'S FEES.
(3) SECTION 207 OF THE ACT PROVIDES:
SAME MANNER AS THE PAYMENT OF FINAL JUDGMENTS AS PROVIDED IN
THIS ACT IS EFFECTIVE ONLY TO THE EXTENT AND IN SUCH AMOUNTS
AS ARE PROVIDED IN ADVANCE IN APPROPRIATIONS ACTS." WE DISCUSSED THE
EFFECT OF SECTION 207 IN LETTERS TO THE SPEAKER OF THE HOUSE OF
REPRESENTATIVES AND THE PRESIDENT OF THE SENATE (B-40342, DECEMBER 17,
1980) AND IN A LETTER TO YOUR OFFICE (B-40342.1, MAY 15, 1981). IT
CLEARLY PROHIBITS USE OF THE JUDGMENT APPROPRIATION UNLESS AND UNTIL
CONGRESS MAKES A SPECIFIC APPROPRIATION FOR THAT PURPOSE (WHICH TO OUR
KNOWLEDGE IT HAS NOT DONE) OR ADDRESSES THE PROBLEM BY OTHER LEGISLATIVE
ACTION.
(4) SINCE THE EQUAL ACCESS TO JUSTICE ACT RE-ENACTED THE EXISTING
PROVISIONS OF 28 U.S.C. SEC. 2412 (SECTIONS 2412(A) AND (C)(1) IN THE
NEW LAW), IT CAN BE ARGUED THAT THE PHRASE "AS PROVIDED IN THIS ACT" IN
SECTION 207 APPLIES TO ALL OF SECTION 2412, INCLUDING THE PRE-EXISTING
PORTIONS. UNDER THIS INTERPRETATION, THE JUDGMENT APPROPRIATION WOULD
NO LONGER BE AUTOMATICALLY AVAILABLE FOR COURT COSTS.
OUR REVIEW OF THE STATUTE AND ITS LEGISLATIVE HISTORY SUGGESTS TO US
THAT THIS WAS NOT THE INTENT OF SECTION 207 AND THAT IT SHOULD NOT BE
CONSTRUED IN THIS MANNER. THE ENTIRE LEGISLATIVE HISTORY OF SECTION 207
IS FOUND IN THE CONGRESSIONAL RECORD FOR OCTOBER 1, 1980, PAGES H-10213
THROUGH H-10218. SINCE WE EXPECT THE EFFECT OF SECTION 207 TO BE A
RECURRING QUESTION, WE WILL OUTLINE THIS LEGISLATIVE HISTORY IN SOME
DETAIL. PAGE REFERENCES ARE TO THE DAILY EDITION OF THE CONGRESSIONAL
RECORD FOR OCTOBER 1, 1980.
THE CONFERENCE REPORT ON H.R. 5612, WHICH BECAME PUB.L. NO. 96-481,
WAS ISSUED ON SEPTEMBER 30, 1980 (H.R.REP. NO. 96-1434). THE CONFERENCE
VERSION OF TITLE II (EQUAL ACCESS TO JUSTICE ACT) WAS IDENTICAL TO THE
VERSION ENACTED INTO LAW EXCEPT THAT IT DID NOT INCLUDE SECTION 207.
THE HOUSE OF REPRESENTATIVES TOOK UP ITS DEBATE ON THE CONFERENCE
REPORT ON OCTOBER 1, 1980. REPRESENTATIVE DANIELSON RAISED A POINT OF
ORDER, CHARGING THAT THE PAYMENT PROVISIONS OF TITLE II CONSTITUTED "AN
APPROPRIATION ON A LEGISLATIVE BILL, IN VIOLATION OF CLAUSE 2 OF RULE XX
OF THE RULES OF THE HOUSE OF REPRESENTATIVES." (H-10214) THE CITED RULE
PROHIBITS HOUSE CONFEREES FROM AGREEING TO SUCH A PROVISION WITHOUT
PRIOR AUTHORITY OF THE HOUSE.
THE CHAIR SUMMARIZED THE PROVISIONS IN QUESTION AND THEN STATED:
IN THE CONFERENCE REPORT EXTENDS THE PURPOSES TO WHICH AN
EXISTING PERMANENT APPROPRIATION 31 U.S.C. SEC. 724A MAY BE
PUT AND ALLOWS THE WITHDRAWAL DIRECTLY FROM THE TREASURY,
WITHOUT APPROVAL IN ADVANCE BY APPROPRIATION ACTS, OF FUNDS
TO CARRY OUT THE PROVISIONS OF TITLE II OF THE SENATE
AMENDMENT." (H-10214) ACCORDINGLY, FOR THE SPECIFIC REASON THAT THE
BILL WOULD HAVE EXPANDED THE AVAILABILITY OF THE JUDGMENT APPROPRIATION,
THE CHAIR SUSTAINED THE POINT OF ORDER. THUS, AT THIS POINT, THE BILL
WAS DEAD WITHOUT SOME FURTHER LEGISLATIVE ACTION.
REPRESENTATIVE SMITH THEN OFFERED AN AMENDED VERSION OF THE BILL TO
CURE THE DEFECT. THE SMITH AMENDMENT WAS IDENTICAL TO THE CONFERENCE
VERSION WITH THE ADDITION OF ONE NEW SECTION - SECTION 207.
REPRESENTATIVE SMITH EXPLAINED THAT HIS AMENDMENT "MODIFIES THOSE
PROVISIONS WHICH HAVE BEEN RULED TO BE AN APPROPRIATION ON AN
AUTHORIZATION BILL. IT MAKES NO OTHER CHANGES IN THE LANGUAGE."
(H-10218)
REPRESENTATIVE DANIELSON AGAIN RAISED A POINT OF ORDER, CONTENDING
THAT THE SMITH AMENDMENT STILL AMOUNTED TO AN APPROPRIATION ON A
LEGISLATIVE BILL. REPRESENTATIVE SMITH, ARGUING AGAINST THE POINT OF
ORDER, OFFERED THE FOLLOWING EXPLANATION:
(SECTION 207) IS WORDED THAT IT IS JUST AN AUTHORIZATION
FOR AN APPROPRIATION. THERE HAS TO BE A SPECIFIC
APPROPRIATION, THE SAME PROCEDURE WE USE IN ALMOST ALL LAWS
AROUND HERE." (H-10218) REPRESENTATIVE MCDADE THEN CONFIRMED
REPRESENTATIVE SMITH'S STATEMENT, POINTING OUT THAT SECTION 207 "IS
BOILERPLATE LANGUAGE." (THE LANGUAGE HAS IN FACT BECOME VERY COMMON
SINCE ENACTMENT OF THE CONGRESSIONAL BUDGET ACT OF 1974, AND IS USUALLY
FOUND IN CASES OF CONTRACT AUTHORITY TO SATISFY THE REQUIREMENTS OF 31
U.S.C. SEC. 1351(A).)
THE CHAIR THEN OVERRULED THE SECOND POINT OF ORDER, THE HOUSE
ACCEPTED THE CONFERENCE REPORT WITH THE SMITH AMENDMENT AFTER SOME
FURTHER DEBATE, AND THE BILL WAS ULTIMATELY SIGNED INTO LAW WITH SECTION
207.
REVIEWING THIS LEGISLATIVE HISTORY, IT SEEMS CLEAR THAT THE PURPOSE
OF SECTION 207 WAS TO CURE THE DEFECT WHICH PROMPTED THE CHAIR TO
SUSTAIN REPRESENTATIVE DANIELSON'S FIRST POINT OF ORDER - THE EXPANSION
OF THE AVAILABILITY OF 31 U.S.C. SEC. 724A. HOWEVER, WE FIND NO
INDICATION OF ANY INTENT TO DIMINISH ITS EXISTING AVAILABILITY.
THEREFORE, CONSTRUING SECTION 207 IN LIGHT OF ITS APPARENT PURPOSE, WE
PROPOSE TO APPLY 31 U.S.C. SEC. 724A AS FOLLOWS:
(1) WE WILL CONTINUE TO CERTIFY FOR PAYMENT FROM THE PERMANENT
JUDGMENT APPROPRIATION AWARDS OF COSTS AND/OR ATTORNEY'S FEES THAT WERE
ALREADY AUTHORIZED BEFORE THE EQUAL ACCESS TO JUSTICE ACT WAS ENACTED.
THIS WILL INCLUDE COURT COSTS UNDER THE PRIOR VERSION OF 28 U.S.C. SEC.
2412 AND ATTORNEY'S FEES UNDER THE SEVERAL STATUTES WHICH ALREADY
AUTHORIZED THEM AGAINST THE UNITED STATES (FOR EXAMPLE, TITLE VII OF THE
CIVIL RIGHTS ACT AND THE FREEDOM OF INFORMATION ACT).
(2) UNLESS AND UNTIL CONGRESS MAKES THE APPROPRIATION REQUIRED BY
SECTION 207 OR OTHERWISE AMENDS THE LAW, WE WILL NOT BE ABLE TO CERTIFY
AWARDS NEWLY AUTHORIZED BY THE EQUAL ACCESS TO JUSTICE ACT. THIS RESULT
FOLLOWS FROM SECTION 207 ITSELF AND THE PROHIBITION IN THE CONSTITUTION
AGAINST DRAWING MONEY FROM THE TREASURY EXCEPT UNDER AN APPROPRIATION
MADE BY LAW (ARTICLE I, SECTION 9).
IN SUM, BY VIRTUE OF SECTION 207, WE VIEW THE EQUAL ACCESS TO JUSTICE
ACT AS NEIGHER EXPANDING NOR DIMINISHING THE AVAILABILITY OF THE
PERMANENT JUDGMENT APPROPRIATION. WHILE THE ABOVE DISCUSSION HAS BEEN
DIRECTED AT JUDICIAL AWARDS, IT OBVIOUSLY APPLIES WITH EQUAL FORCE TO
ADMINISTRATIVE AWARDS OF ATTORNEY'S FEES AND EXPENSES AUTHORIZED BY
SECTION 203 OF THE ACT, TO BE CODIFIED AT 5 U.S.C. SEC. 504. SINCE NO
LEGAL BASIS EXISTED TO PAY ADMINISTRATIVE AWARDS OF ATTORNEY'S FEES FROM
THE JUDGMENT APPROPRIATION PRIOR TO THE EQUAL ACCESS TO JUSTICE ACT,
THERE CONTINUES TO BE NONE UNLESS AND UNTIL CONGRESS MAKES AN
APPROPRIATION OR TAKES OTHER LEGISLATIVE ACTION.
WE ARE SENDING COPIES OF THIS LETTER TO THE ACTING ASSISTANT ATTORNEY
GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE, AND THE DIRECTOR OF THE
ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS.
B-36099, AUG 14, 1943
PRECIS UNAVAILABLE
MR. P. H. HARLEY, AUTHORIZED CERTIFYING OFFICER,
FOREST SERVICE, DEPARTMENT OF AGRICULTURE,
POST OFFICE BUILDING,
ALBUQUERQUE, NEW MEXICO.
DEAR MR. HARLEY:
I HAVE YOUR LETTER OF JULY 29, 1943 (REFERENCE, A, DISBURSEMENT,
GENERAL ACCOUNTING OFFICE), REQUESTING DECISION WHETHER YOU ARE
AUTHORIZED TO CERTIFY FOR PAYMENT A VOUCHER STATED IN FAVOR OF THE
ARIZONA STATE LAND DEPARTMENT IN THE AMOUNT OF $19.40, REPRESENTING THE
AMOUNT CLAIMED FOR RENTAL FOR THE PERIOD BEGINNING JULY 1, 1943, AND
ENDING JUNE 30, 1944, OF 640 ACRES OF RANGE LAND INCLUDED IN THE
SOUTHWESTERN FOREST AND RANGE EXPERIMENT STATION HEADQUARTERS, AND
OCCUPIED UNDER LEASES NOS. 27935-U, 27936-U, 27937-U AND 27938-S.
THERE IS ATTACHED TO THE VOUCHER A BILL DATED MAY 1, 1943, CONTAINING
AN ITEMIZED STATEMENT OF THE AMOUNT CLAIMED AND A NOTICE TO THE EFFECT
THAT THE RENTAL CLAIMED ON SAID BILL WILL BE DUE AND PAYABLE AT THE
OFFICE OF THE STATE LAND DEPARTMENT ON JULY 1, 1943, AND THAT IF THE
RENTAL IS NOT RECEIVED ON OR BEFORE THE DUE DATE, PENALTY AND INTEREST
WILL BE ADDED THERETO. ALSO, THERE IS ATTACHED TO SAID VOUCHER, LETTER
DATED JUNE 15, 1943, FROM THE DEPUTY COMMISSIONER OF THE STATE LAND
DEPARTMENT TO THE UNITED STATES FOREST SERVICE AT TUCSON AS FOLLOWS:
"YOURS OF JUNE 11TH REGARDING PAYMENT OF RENTALS ON LANDS LEASED FROM
THE STATE OF ARIZONA HAS BEEN REFERRED TO ME FOR REPLY.
"IN ANSWER THERETO I WISH TO QUOTE YOU THE PART OF THE STATUTE WHICH
APPLIES TO THE PAYMENT OF RENTALS:
"'SECTION 11-304. - THEREAFTER THE COMMISSIONER OR HIS DULY APPOINTED
REPRESENTATIVE SHALL INVESTIGATE AND CLASSIFY SAID LAND AND SHALL ASSESS
A FAIR AND EQUITABLE RENTAL THEREON; SAID RENTAL SHALL BE PAID IN
ADVANCE, ANNUALLY OR FOR SUCH OTHER PERIOD NOT EXCEEDING TWO (2) YEARS
AS THE COMMISSIONER MAY FIX.'
"IN VIEW OF THE ABOVE SECTION OF THE STATUTE, IT DOES NOT APPEAR THAT
THERE IS ANY DISCRETION IN THE COMMISSIONER AS TO HOW THE RENTALS SHALL
BE COLLECTED. HE IS CHARGED WITH THE ADMINISTRATION OF A TRUST, AND IS
DEFINITELY INSTRUCTED TO COLLECT RENTALS IN ADVANCE.
"WE ARE SORRY THAT WE HAVE NO DISCRETION IN THE MATTER, AND WISH TO
COOPERATE WITH YOU IN EVERY WAY POSSIBLE, BUT WE CANNOT ENTER INTO A
LEASE PAYABLE IN ANY OTHER MANNER."
THE LEASES UNDER WHICH THE LAND IS REPORTED TO BE OCCUPIED DO NOT
APPEAR TO BE PRESENTLY FILED IN THIS OFFICE. HOWEVER, IT IS UNDERSTOOD
INFORMALLY THAT SAID LEASES PROVIDE FOR THE ADVANCE PAYMENT OF RENTAL.
SECTION 3648, REVISED STATUTES, PROHIBITS THE DISBURSEMENT OF PUBLIC
FUNDS IN ADVANCE OF THE RENDERING OF SERVICES OR DELIVERY OF MATERIALS
FOR WHICH PAYMENT IS MADE, AND IT HAS BEEN REPEATEDLY HELD THAT THIS
STATUTORY INHIBITION IS APPLICABLE TO LEASES EXECUTED BY OR ON BEHALF OF
THE UNITED STATES AS LESSEE. 3 COMP.GEN. 542; 18 ID. 839; 19 ID. 758.
IN THIS CONNECTION IT IS NOTED THAT THERE IS NO SPECIFIC PROVISION IN
THE APPROPRIATION DESIGNATED ON THE VOUCHER "SALARIES AND EXPENSES
FOREST SERVICE," SUBTITLE "RANGE INVESTIGATIONS" AS MADE BY THE ACT OF
JULY 12, 1943, 57 STAT. , PUBLIC LAW 129, EXEMPTING IT FROM THE
PROHIBITION IN SAID SECTION 3648.
OF COURSE, THE PRIMARY PURPOSE OF SAID SECTION IN THE REVISED
STATUTES IS OBVIOUS. THE DANGER INHERENT IN AN ADVANCE PAYMENT OF
MONEYS PRIOR TO THE RENDERING OF SERVICE OR DELIVERY OF MATERIALS UNDER
A CONTRACT IS THAT THERE IS ALWAYS A POSSIBILITY OF FAILURE OF
PERFORMANCE ON THE PART OF THE CONTRACTOR OR HIS REFUSAL OR INABILITY TO
REFUND THE MONEYS ADVANCED. HOWEVER, THE LESSER, IN THIS INSTANCE IS A
STATE AND IN CONNECTION WITH A SOMEWHAT SIMILAR SITUATION INVOLVING
PROPOSED ADVANCE PAYMENTS TO VARIOUS STATES FOR THE AMOUNT OF THE
ESTIMATED COST OF PREVENTING AND CONTROLLING FIRES IN CRITICAL AREAS, IT
WAS STATED IN DECISION OF JULY 19, 1943, B-35670, TO THE SECRETARY OF
AGRICULTURE, AS FOLLOWS:
"*** HOWEVER, HAVING REGARD FOR THE ESTABLISHED RESPONSIBILITY OF A
STATE, THAT DANGER WOULD SEEM TO BE LESS REAL WHERE A STATE IS THE
CONTRACTOR UNDERTAKING TO RENDER SERVICES UNDER AN AGREEMENT WITH THE
UNITED STATES, PARTICULARLY WHERE, AS HERE, THE ENDS TO BE ACHIEVED BY
THE PERFORMANCE OF THE SERVICE - THE PREVENTION AND SUPPRESSION OF
FOREST FIRES WITHIN ITS CONFINES - WILL BENEFIT THE STATE AS WELL AS THE
FEDERAL GOVERNMENT. THEREFORE, AND IN VIEW OF THE EMERGENT NATURE OF
THE WORK TO BE PERFORMED AND THE UNDOUBTED RELATIONSHIP OF THAT WORK TO
THE WAR EFFORT (COMPARE 22 COMP.GEN. 386), I HAVE TO ADVISE THAT THE
PROPOSED ARRANGEMENT FOR ADVANCES MAY BE REGARDED AS WITHIN YOUR
ADMINISTRATIVE DISCRETION IN THE USE OF THE APPROPRIATION INVOLVED,
WHICH IS SPECIFICALLY MADE AVAILABLE FOR COOPERATION WITH THE VARIOUS
STATES. ***"
IN THE PRESENT CASE THE CONSIDERATIONS FOR APPROVING THE ADVANCE
PAYMENTS UNDER THE LEASE ARE EQUALLY PERSUASIVE AND THE DANGER OF THE
UNITED STATES SUFFERING A LOSS BY REASON OF SUCH PAYMENTS IS EQUALLY
REMOTE IF THERE BE CONSIDERED NOT ONLY THE SMALL AMOUNT OF THE TOTAL
ANNUAL RENTAL RATE OF $19.40, BUT ALSO THE FACT THAT IT IS TO THE
ADVANTAGE OF THE STATE TO KEEP THE GOVERNMENT IN OCCUPANCY OF THE LAND.
THE HEARINGS ON THE APPROPRIATION PROPOSED TO BE CHARGED WITH THE RENTAL
UNDER THE LEASES HERE INVOLVED DISCLOSE THAT THE ACTIVITIES FOR WHICH
THE LANDS ARE LEASED INVOLVE THE INVESTIGATION OF LIVESTOCK BREEDING,
FEEDING AND GRAZING ON THE RANGE IN THE FORESTS OF THE VARIOUS STATES
WITH A VIEW TO IMPROVING PRODUCTION OF LIVESTOCK, AND THAT SUCH
ACTIVITIES ARE CARRIED ON IN COOPERATION WITH THE VARIOUS STATE
EXPERIMENT STATIONS.
THEREFORE, CONSIDERING THE REQUIREMENTS OF THE STATE LAW AS REPORTED
IN LETTER OF JUNE 15, 1943, QUOTED ABOVE, AND THE OTHER FACTORS
INVOLVED, YOU ARE ADVISED THAT, IF THE LEASES IN FACT PROVIDE FOR
PAYMENTS IN ADVANCE, THE VOUCHER, IF CORRECT IN OTHER RESPECTS, MAY BE
CERTIFIED FOR PAYMENT.
SAID VOUCHER AND RELATED PAPERS ARE RETURNED HEREWITH.
B-35670, JUL 19, 1943
PRECIS UNAVAILABLE
THE HONORABLE,
THE SECRETARY OF AGRICULTURE.
MY DEAR MR. SECRETARY:
I HAVE YOUR LETTER OF JULY 12, 1943, REQUESTING DECISION UPON A
QUESTION ARISING UNDER THE APPROPRIATION ITEM "FOREST FIRE COOPERATION"
CONTAINED IN THE DEPARTMENT OF AGRICULTURE APPROPRIATION ACT, 1944,
APPROVED JULY 12, 1943, 57 STAT. 413 (PUBLIC LAW 129, 78TH CONGRESS),
WHICH PROVIDES:
"FOR COOPERATION WITH THE VARIOUS STATES OR OTHER APPROPRIATE
AGENCIES IN FOREST-FIRE PREVENTION AND SUPPRESSION AND THE PROTECTION OF
TIMBERED AND CUT-OVER LANDS IN ACCORDANCE WITH THE PROVISIONS OF
SECTIONS 1, 2, AND 3 OF THE ACT ENTITLED 'AN ACT TO PROVIDE FOR THE
PROTECTION OF FOREST LANDS, FOR THE REFORESTATION OF DENUDED AREAS, FOR
THE EXTENSION OF NATIONAL FORESTS, AND FOR OTHER PURPOSES, IN ORDER TO
PROMOTE THE CONTINUOUS PRODUCTION OF TIMBER ON LANDS CHIEFLY SUITABLE
THEREFOR', APPROVED JUNE 7, 1924, AS AMENDED (16 U.S.C. 564-570),
INCLUDING ALSO THE STUDY OF THE EFFECT OF TAX LAWS AND THE INVESTIGATION
OF TIMBER INSURANCE AS PROVIDED IN SECTION 3 OF SAID ACT, $6,300,000, OF
WHICH NOT TO EXCEED $87,418 AND $5,000 SHALL BE AVAILABLE FOR PERSONAL
SERVICES AND FOR THE PURCHASE OF SUPPLIES AND EQUIPMENT, RESPECTIVELY,
IN THE DISTRICT OF COLUMBIA: PROVIDED, THAT THE SECRETARY OF
AGRICULTURE MAY AUTHORIZE EXPENDITURES NOT TO EXCEED $2,800,000 FROM
THIS APPROPRIATION FOR PREVENTING AND SUPPRESSING FOREST FIRES ON
CRITICAL AREAS OF NATIONAL IMPORTANCE WITHOUT REQUIRING AN EQUAL
EXPENDITURE BY THE STATE AND PRIVATE OWNERS."
YOU STATE THAT THE LOCATION OF MOST OF THE WORK TO BE UNDERTAKEN
PURSUANT TO THE AUTHORITY CONTAINED IN THE PROVISO TO THE APPROPRIATION
ABOVE QUOTED IS SUCH THAT IT CAN BE HANDLED MORE EXPEDITIOUSLY BY STATE
ORGANIZATIONS WITH WHICH THE FOREST SERVICE COOPERATES IN FIRE
PROTECTION UNDER THE ACT OF JUNE 7, 1924, 43 STAT. 653, AND YOU FURTHER
STATE:
"IT IS PLANNED TO MAKE CONTRACTUAL ARRANGEMENTS WITH THE STATES UNDER
WHICH THEIR FIRE PROTECTION ORGANIZATIONS WILL HANDLE FIRE PREVENTION
AND SUPPRESSION ON SUCH CRITICAL AREAS AS CAN BE HANDLED MOST
ECONOMICALLY THROUGH SUCH AN ARRANGEMENT. THIS CONTEMPLATES ADVANCE
APPROVAL BY THE FOREST SERVICE OF THE PLAN OF OPERATION IN DETAIL,
PERIODIC INSPECTIONS BY FOREST SERVICE PERSONNEL TO INSURE THAT THE
REQUIRED MEASURES ARE PUT INTO EFFECT AND MAINTAINED IN ACCORDANCE WITH
SPECIFICATIONS AND THAT EXPENDITURES ARE MADE ONLY FOR PURPOSES
NECESSARY TO ACCOMPLISHMENT OF THE TASK.
"THE FOREST SERVICE IS FAMILIAR WITH THE OPERATION OF THE STATE
PROTECTION AGENCIES THROUGH COOPERATION UNDER THE 1924 ACT OVER A PERIOD
OF YEARS AND HAS COOPERATIVE AGREEMENTS NOW IN EFFECT; IT IS KNOWN THAT
THESE ORGANIZATIONS ARE FULLY QUALIFIED AND PROPERLY LOCATED FOR THE
EFFICIENT HANDLING OF PROTECTION WORK ON CRITICAL AREAS. WHILE THE
STATES ARE WILLING TO UNDERTAKE THE TASK, SEVERAL OF THEM DO NOT HAVE
FUNDS WITH WHICH TO FINANCE THE OPERATION INITIALLY UNDER AN ARRANGEMENT
WHEREBY LATER REIMBURSEMENT WOULD BE MADE BY THE FEDERAL GOVERNMENT.
DECISION IS DESIRED WHETHER IT IS PERMISSIBLE TO ADVANCE TO THE STATES
FROM THIS APPROPRIATION THE AMOUNT OF THE ESTIMATED COST OF PREVENTING
AND CONTROLLING FIRE ON SUCH CRITICAL AREAS WITH THE UNDERSTANDING THAT
ANY UNOBLIGATED BALANCE WILL BE REFUNDED TO THE FEDERAL GOVERNMENT."
WHILE YOUR SUBMISSION DOES NOT SO STATE, IT IS UNDERSTOOD FROM
INFORMAL INQUIRY OF YOUR DEPARTMENT THAT THE AMOUNTS TO BE EXPENDED
UNDER THE PROPOSED AGREEMENTS OR CONTRACTS WILL REPRESENT REIMBURSEMENT
TO THE STATES - BUT WITHOUT PROFIT - OF THE COST AND EXPENSE OF
MAINTAINING LOOKOUTS IN THE AREAS INVOLVED, THE DRILLING AND TRAINING OF
FIRE CREWS, THE PURCHASE AND AND MAINTENANCE OF EQUIPMENT (TITLE TO
WHICH WILL BE IN THE UNITED STATES), THE PAYMENT OF WAGES TO PERSONNEL,
ETC., IN ADDITION TO THE COST OF ACTUAL FIRE SUPPRESSION.
SECTION 3648, REVISED STATUTES, PROHIBITS THE DISBURSEMENT OF PUBLIC
FUNDS IN ADVANCE OF THE RENDERING OF SERVICES OR DELIVERY OF MATERIALS
FOR WHICH PAYMENT IS MADE, THE PRIMARY PURPOSE OF SAID STATUTE, OF
COURSE, IS OBVIOUS. THE DANGER INHERENT IN AN ADVANCE OF MONEYS PRIOR
TO THE RENDERING OF SERVICE OR DELIVERY OF MATERIALS UNDER A CONTRACT IS
THE POSSIBILITY OF FAILURE OF PERFORMANCE ON THE PART OF THE CONTRACTOR
AND HIS REFUSAL OR INABILITY TO REFUND THE MONEYS SO ADVANCED. HOWEVER,
HAVING REGARD FOR THE ESTABLISHED RESPONSIBILITY OF A STATE, THAT DANGER
WOULD SEEM TO BE LESS REAL WHERE A STATE IS THE CONTRACTOR UNDERTAKING
TO RENDER SERVICES UNDER AN AGREEMENT WITH THE UNITED STATES,
PARTICULARLY WHERE, AS HERE, THE ENDS TO BE ACHIEVED BY THE PERFORMANCE
OF THE SERVICE - THE PREVENTION AND SUPPRESSION OF FOREST FIRES WITHIN
ITS CONFINES - WILL BENEFIT THE STATE AS WELL AS THE FEDERAL GOVERNMENT.
THEREFORE, AND IN VIEW OF THE EMERGENT NATURE OF THE WORK TO BE
PERFORMED AND THE UNDOUBTED RELATIONSHIP OF THAT WORK TO THE WAR EFFORT
(COMPARE 22 COMP.GEN. 386), I HAVE TO ADVISE THAT THE PROPOSED
ARRANGEMENT FOR ADVANCES MAY BE REGARDED AS WITHIN YOUR ADMINISTRATIVE
DISCRETION IN THE USE OF THE APPROPRIATION INVOLVED, WHICH IS
SPECIFICALLY MADE AVAILABLE FOR COOPERATION WITH THE VARIOUS STATES.
HOWEVER, IN ORDER TO REDUCE TO A MINIMUM THE POSSIBILITY OF LOSS TO THE
UNITED STATES, IT IS SUGGESTED THAT THE ENTIRE AMOUNT OF SUCH ESTIMATED
COST SHOULD NOT BE ADVANCED TO THE STATE AT ONE TIME, BUT THAT ADVANCES
BE MADE PERIODICALLY, SUCH AS IN MONTHLY OR QUARTERLY INSTALLMENTS.
File: B-235927