A-19375, FEBRUARY 28, 1928, 7 COMP. GEN. 531

A-19375: Feb 28, 1928

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AUTHORIZING THE SALE OF CERTAIN MILITARY RESERVATIONS AND DIRECTING THE SECRETARY OF WAR TO HAVE MADE APPRAISALS OF THE PROPERTY TO BE SOLD BY APPRAISERS TO BE CHOSEN BY HIM AND PAY THE EXPENSES OF APPRAISAL FROM THE PROCEEDS OF SALES. THE SECRETARY OF WAR IS NOT RESTRICTED TO APPOINTING APPRAISERS FROM THE PERSONNEL OF THE WAR OR OTHER DEPARTMENTS OF THE GOVERNMENT. NOR IS HE PRECLUDED BY THE USUAL AND ORDINARY RULES GOVERNING EMPLOYMENTS FROM ENTERING INTO NEGOTIATIONS WITH OUTSIDE AGENCIES FOR THE FURNISHING OF INDIVIDUALS FOR THAT PURPOSE. THE PAYMENT OF FEES TO APPRAISERS WHOSE SERVICES WERE RENDERED UNDER AN INFORMAL AGREEMENT FOR THE PURPOSE OF MAKING APPRAISALS OF SUCH PROPERTY IS NOT AUTHORIZED TO BE MADE FROM THE PROCEEDS RECEIVED FROM THE SALE OF PROPERTY SOLD UNDER ITS PROVISIONS.

A-19375, FEBRUARY 28, 1928, 7 COMP. GEN. 531

PERSONAL SERVICES - APPRAISERS - SALES OF SURPLUS MILITARY RESERVATIONS UNDER THE ACT OF MARCH 12, 1926, 44 STAT. 203, AUTHORIZING THE SALE OF CERTAIN MILITARY RESERVATIONS AND DIRECTING THE SECRETARY OF WAR TO HAVE MADE APPRAISALS OF THE PROPERTY TO BE SOLD BY APPRAISERS TO BE CHOSEN BY HIM AND PAY THE EXPENSES OF APPRAISAL FROM THE PROCEEDS OF SALES, THE SECRETARY OF WAR IS NOT RESTRICTED TO APPOINTING APPRAISERS FROM THE PERSONNEL OF THE WAR OR OTHER DEPARTMENTS OF THE GOVERNMENT, NOR IS HE PRECLUDED BY THE USUAL AND ORDINARY RULES GOVERNING EMPLOYMENTS FROM ENTERING INTO NEGOTIATIONS WITH OUTSIDE AGENCIES FOR THE FURNISHING OF INDIVIDUALS FOR THAT PURPOSE. THERE BEING NO AUTHORITY IN THE ACT OF JULY 9, 1918, 40 STAT. 850, FOR THE APPOINTMENT OF APPRAISERS TO APPRAISE THE SURPLUS PROPERTY AUTHORIZED BY THAT ACT TO BE SOLD, THE PAYMENT OF FEES TO APPRAISERS WHOSE SERVICES WERE RENDERED UNDER AN INFORMAL AGREEMENT FOR THE PURPOSE OF MAKING APPRAISALS OF SUCH PROPERTY IS NOT AUTHORIZED TO BE MADE FROM THE PROCEEDS RECEIVED FROM THE SALE OF PROPERTY SOLD UNDER ITS PROVISIONS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, FEBRUARY 28, 1928:

I HAVE YOUR LETTER OF JANUARY 23, 1928, REQUESTING REVIEW OF THE ACTION TAKEN BY THIS OFFICE, AS INDICATED BY LETTER DATED DECEMBER 14, 1927, TO THE FINANCE OFFICER, WASHINGTON, D.C., IN CONNECTION WITH THE PAYMENT OF $41.22 ON VOUCHER 5, APRIL, 1927, ACCOUNTS OF MAJ. E. T. COMEGYS, FINANCE DEPARTMENT, UNITED STATES ARMY, TO THE NEW ORLEANS REAL ESTATE AGENTS ASSOCIATION FOR SERVICES RENDERED IN APPRAISING THE FORT MACOMB, LA., PROPERTY, AND THAT DECISION A-19375 OF SEPTEMBER 27, 1927, IN THE MATTER OF THE VOUCHER OF THE AMERICAN APPRAISAL CO. IN THE AMOUNT OF $750, COVERING SERVICES RENDERED IN MAKING AN APPRAISAL OF THE PETER LYALL PLANT, MONTREAL, CANADA, BE SO MODIFIED AS TO PERMIT THE DISBURSING OFFICER TO MAKE PAYMENT OF SAID AMOUNT TO THAT COMPANY.

THE NEW ORLEANS REAL ESTATE AGENTS ASSOCIATION APPEARS TO HAVE BEEN APPOINTED UNDER THE AUTHORITY CONFERRED ON THE SECRETARY OF WAR BY SECTION 5 OF THE ACT OF MARCH 12, 1926, 44 STAT. 203, TO MAKE AN APPRAISAL OF A MILITARY RESERVATION AUTHORIZED BY SAID ACT TO BE SOLD,AND IT ALSO APPEARS THAT THE SERVICES OF THAT ASSOCIATION WERE SECURED WITHOUT ADVERTISING OR WITHOUT BEING COVERED BY A FORMAL OR INFORMAL CONTRACT. THE FORT MACOMB PROPERTY WAS APPRAISED BY AN AGENT OF THE ASSOCIATION AT $11,487.37, FOR WHICH THE ASSOCIATION WAS PAID, ON THE VOUCHER MENTIONED AN APPRAISAL FEE OF ONE-HALF OF 1 PERCENT ON THE FIRST $5,000 AND ONE-FOURTH OF 1 PERCENT ON THE BALANCE, OR A TOTAL OF $41.22. NO FINAL ACTION LOOKING TO THE DISALLOWANCE OF SAID PAYMENT HAS AS YET BEEN TAKEN BY THIS OFFICE, CREDIT THEREFOR HAVING BEEN SUSPENDED ONLY, BUT THE FINANCE OFFICER WAS ADVISED IN LETTER OF DECEMBER 14, 1927, THAT THE AMOUNT OF SAID PAYMENT WOULD BE DISALLOWED IN A LATER SETTLEMENT.

THE ACT OF MARCH 12, 1926, SUPRA, AUTHORIZED THE SECRETARY OF WAR TO SELL OR CAUSE TO BE SOLD, EITHER IN WHOLE OR IN TWO OR MORE PARTS AS HE MIGHT DEEM BEST FOR THE INTERESTS OF THE UNITED STATES, CERTAIN MILITARY RESERVATIONS THEREIN NAMED, INCLUDING FORT MACOMB, LA., IT BEING PROVIDED IN SECTION 5 OF SAID ACT THAT---

IN THE DISPOSAL OF THE AFORESAID PROPERTY THE SECRETARY OF WAR SHALL IN EACH AND EVERY CASE CAUSE THE PROPERTY TO BE APPRAISED, EITHER ASA WHOLE OR IN TWO OR MORE PARTS, BY AN APPRAISER OR APPRAISERS TO BE CHOSEN BY HIM FOR EACH TRACT, AND IN THE MAKING OF SUCH APPRAISAL DUE REGARD SHALL BE GIVEN TO THE VALUE OF ANY IMPROVEMENTS THEREON AND TO THE HISTORIC INTEREST OF ANY PART OF SAID LAND.

AND IN SECTION 9 THEREOF, THAT---

THE EXPENSES OF APPRAISAL, SURVEY, ADVERTISING, AND ALL EXPENSES INCIDENT TO THE SALE OF THE PROPERTY HEREINBEFORE AUTHORIZED FOR DISPOSITION SHALL BE PAID FROM THE PROCEEDS OF THE SALE OF ANY OF THE PROPERTIES SOLD UNDER THIS ACT: PROVIDED, THAT NO AUCTIONEER OR PERSON ACTING IN SAID CAPACITY SHALL BE PAID A FEE FOR THE SALE OF SAID PROPERTY IN EXCESS OF $100 A DAY.

THE SECRETARY OF WAR HAVING THUS BEEN SPECIFICALLY AUTHORIZED IN CONNECTION WITH THE SALE OF FORT MACOMB TO HAVE THE PROPERTY APPRAISED BY APPRAISERS TO BE CHOSEN BY HIM AND TO MAKE PAYMENT OF EXPENSES OF APPRAISAL FROM THE PROCEEDS OF SALE OF THAT OR ANY OTHER PROPERTY INCLUDED IN THE ACT OF MARCH 12, 1926, THE ONLY QUESTIONS FOR DETERMINATION IN CONNECTION WITH THE SALE ARE WHETHER THE SECRETARY OF WAR HAD AUTHORITY UNDER SECTION 5 OF THAT ACT TO SECURE APPRAISERS OUTSIDE OF THE EMPLOYEES OF THE WAR OR OTHER DEPARTMENTS OF THE GOVERNMENT, OR, IN THE EVENT THERE WAS SUCH AUTHORITY, WHETHER HE WAS AUTHORIZED TO EMPLOY FIRMS, ASSOCIATIONS, OR CORPORATIONS TO FURNISH APPRAISERS WHOSE SERVICES WOULD NOT BE SUBJECT TO THE RESTRICTIONS AND COMPENSATION LIMITATIONS APPLICABLE TO THE EMPLOYMENT OF PERSONAL SERVICES GENERALLY.

WITH RESPECT TO THESE QUESTIONS, THERE WOULD NOT APPEAR TO BE MUCH ROOM FOR DOUBT, IN VIEW OF THE LANGUAGE OF SECTION 5, DIRECTING THE SECRETARY OF WAR TO CAUSE THE PROPERTY TO BE APPRAISED BY ANY APPRAISER OR APPRAISERS "TO BE CHOSEN BY HIM," THAT THERE WAS ANY INTENT ON THE PART OF THE CONGRESS TO LIMIT THE SECRETARY OF WAR IN HIS CHOICE OF APPRAISERS EITHER TO EMPLOYEES OF THE WAR OR ANY OTHER DEPARTMENT OF THE GOVERNMENT, OR TO PRECLUDE HIM FROM ENTERING INTO NEGOTIATIONS WITH OUTSIDE AGENCIES FOR THE FURNISHING OF INDIVIDUALS FOR THE PURPOSE OF MAKING THE REQUIRED APPRAISALS. UNDER THE AUTHORITY CONFERRED BY SECTION 5, THE MATTER OF CHOOSING AN APPRAISER OR APPRAISERS AND THE COMPENSATION TO BE PAID, IS LARGELY WITHIN THE DISCRETION OF THE SECRETARY OF WAR AND THE ORDINARY AND USUAL RULES WITH RESPECT TO EMPLOYMENTS ARE NOT FOR APPLICATION. YOU ARE ADVISED, THEREFORE, THAT IN THE SELLING OR OTHERWISE DISPOSING OF THE PROPERTY COVERED BY THE ACT HERE IN QUESTION, AND BY THE ACTS AUTHORIZING YOU TO DISPOSE OF OTHER MILITARY RESERVATIONS IN WHICH YOU ARE SPECIFICALLY AUTHORIZED TO HAVE APPRAISALS MADE BY APPRAISERS TO BE CHOSEN BY YOU, NO FURTHER OBJECTION WILL BE MADE TO THE APPOINTMENT OF APPRAISERS AND THE PAYMENT FOR THEIR SERVICES FROM THE PROCEEDS OF SALES PROVIDED THE COMPENSATION PAID APPEARS TO BE REASONABLE AND JUST AND NOT OUT OF PROPORTION TO THE VALUE OF THE SERVICES RENDERED.

IN THE MATTER OF THE AMERICAN APPRAISAL CO. VOUCHER, IN WHICH IT WAS PROPOSED TO MAKE PAYMENT OF THE SUM OF $750 INFORMALLY AGREED UPON AS THE FEE TO BE PAID FOR MAKING AN APPRAISAL OF THE PETER LYALL PLANT FROM THE PROCEEDS OF SALE OF SAID PROPERTY, WHICH WAS APPRAISED AT $150,000, IT WAS HELD IN THE DECISION WHICH YOU NOW REQUEST BE MODIFIED, THAT THERE WAS NO AUTHORITY FOR THE EMPLOYMENT OF A CORPORATION OR INDIVIDUAL OUTSIDE THE GOVERNMENT SERVICE TO APPRAISE THE PROPERTY IN QUESTION, THAT BEING A DUTY DEVOLVING UPON THE WAR DEPARTMENT ITSELF, AND THAT THE AGREEMENT WAS ALSO OBJECTIONABLE IN THAT IT WAS FOR THE FURNISHING BY A CORPORATION OR FORM OF PERSONAL SERVICES BY ITS EMPLOYEES, IT BEING STATED THAT IF THE SECURING OF SUCH SERVICES HAD BEEN OTHERWISE AUTHORIZED, THEY SHOULD HAVE BEEN PROCURED THROUGH AGREEMENT WITH THE INDIVIDUALS PERFORMING THE SERVICE.

THE ACT OF JULY 9, 1918, 40 STAT. 850, UNDER WHICH THE ABOVE MENTIONED PROPERTY IS STATED TO HAVE BEEN SOLD, MADE NO PROVISION FOR AN APPRAISAL TO BE MADE NOR DID IT AUTHORIZE THE APPOINTMENT OF APPRAISERS TO MAKE AN APPRAISAL OF THE PROPERTY IN QUESTION OR ANY OTHER PROPERTY INCLUDED IN ITS TERMS. OTHER THAN THE DIRECTION THAT THE MONEYS RECEIVED FROM SALES MADE UNDER THAT ACT SHOULD BE DEPOSITED TO THE CREDIT OF THE APPROPRIATION OUT OF WHICH WAS PAID THE COST TO THE GOVERNMENT OF THE PROPERTY SOLD, THE LAWS IN EFFECT PRIOR THERETO RESPECTING THE ITEMS OF EXPENSE THAT WOULD BE ALLOWABLE IN CONNECTION WITH SALES THEREUNDER, WERE IN FULL FORCE AND EFFECT AND APPLICABLE TO THE PROCEEDS OF SALE OF SAID PROPERTY.

THE ACT OF JUNE 8, 1896, 29 STAT. 268, REFERRED TO IN YOUR LETTER, DIRECTED THAT FROM THE PROCEEDS OF SALES OF OLD MATERIALS, CONDEMNED STORES, SUPPLIES, OR OTHER PUBLIC PROPERTY OF ANY KIND BEFORE BEING DEPOSITED INTO THE TREASURY EITHER AS MISCELLANEOUS RECEIPTS OR TO THE CREDIT OF THE APPROPRIATIONS TO WHICH SUCH PROCEEDS ARE AUTHORIZED BY LAW TO BE MADE, THERE MIGHT BE PAID THE EXPENSES OF SUCH SALES AS APPROVED BY THE ACCOUNTING OFFICERS OF THE TREASURY, SO AS TO REQUIRE ONLY THE NET PROCEEDS OF SUCH SALES TO BE DEPOSITED INTO THE TREASURY. UNDER INSTRUCTIONS PRESCRIBED BY THE COMPTROLLER OF THE TREASURY AND APPROVED BY THE SECRETARY OF THE TREASURY UNDER THE AUTHORITY OF THAT ACT (TREASURY DEPARTMENT CIRCULAR NO. 6, OF JANUARY 9, 1897, 3 COMP. DEC. 744), AND WHICH HAVE BEEN CONSISTENTLY FOLLOWED BY THE ACCOUNTING OFFICERS SINCE THAT TIME, THE EXPENSES OF SALES PAYABLE FROM GROSS PROCEEDS OF SALES OF SURPLUS GOVERNMENT PROPERTY ARE LIMITED TO THOSE PERTAINING DIRECTLY TO THE SALES SUCH AS AUCTIONEERS' FEES, CARTAGE TO PLACE OF SALE, COST OF INSPECTION, IF AN INSPECTOR BE HIRED FOR THAT PURPOSE, AND SUCH LIKE EXPENSES.

THERE HAVING BEEN NO AUTHORITY FOR THE INCURRING OF EXPENSES FOR APPRAISERS' FEES IN CONNECTION WITH THE SALE OF THE PETER LYALL PLANT, THE PAYMENT OF SUCH FEES IS NOT CONSIDERED BY THIS OFFICE AS HAVING BEEN PROPER.