A-45460, NOVEMBER 11, 1932, 12 COMP. GEN. 442

A-45460: Nov 11, 1932

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IS NOT TO BE REGARDED AS PRECLUDING. THE FOLLOWING EXPLANATION IS OFFERED: (1) THE NAVY DEPARTMENT IN SUBMITTING ITS BILL FOR THE SERVICES RENDERED TO THIS OFFICE. WITH THE UNDERSTANDING THAT THE COST OF SUCH SERVICES MAY BE REIMBURSED IN FULL BY THE OFFICE RECEIVING THE SAME. (2) THE SERVICES WERE RENDERED BY THE NAVY DEPARTMENT SUBSEQUENT TO THE ENACTMENT OF PUBLIC 212. YET IT WAS IMPOSSIBLE FOR THE NAVY DEPARTMENT TO ACT UPON THIS OFFICE'S REQUEST UNTIL AFTER THE ENACTMENT OF PUBLIC 212. SO THAT THE AGREEMENT WHEN CONFIRMED WOULD SEEM TO HAVE BEEN SUBJECT TO THE PROVISIONS OF PUBLIC 212. (3) THE ATTACHED DOCUMENTS OF THE NAVY DEPARTMENT SHOW THAT THAT DEPARTMENT HAS PAID FOR THESE SERVICES OUT OF THEIR 1933 APPROPRIATIONS.

A-45460, NOVEMBER 11, 1932, 12 COMP. GEN. 442

ECONOMY ACT - REIMBURSEMENT FOR SERVICES BETWEEN DEPARTMENTS THE RULE IN FORCE PRIOR TO JULY 1, 1932, OF EXCLUDING THE SALARIES OF REGULAR EMPLOYEES FROM THE COST OF WORK PERFORMED BY ONE DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE FOR ANOTHER, IS NOT TO BE REGARDED AS PRECLUDING, IN MAKING SUCH ADJUSTMENTS UNDER THE PROVISIONS OF SECTION 601 OF THE ECONOMY ACT, THE CONSIDERATION, AS PART OF THE ACTUAL COST, OF THE SALARY OR COMPENSATION OF OFFICERS OR EMPLOYEES ENGAGED DIRECTLY ON THE WORK, INCLUDING THE AMOUNT TO BE DEDUCTED AND IMPOUNDED UNDER TITLE I OF THE ECONOMY ACT.

COMPTROLLER GENERAL MCCARL TO THE ARCHITECT OF THE CAPITOL, NOVEMBER 11, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF OCTOBER 21, 1932, AS FOLLOWS:

WITH REFERENCE TO THE ATTACHED VOUCHER IN FAVOR OF THE U.S. NAVY PROPERTY ACCOUNTING OFFICER IN THE AMOUNT OF $6.35 TO WHICH EXCEPTION HAS BEEN TAKEN BY YOUR OFFICE, THE FOLLOWING EXPLANATION IS OFFERED:

(1) THE NAVY DEPARTMENT IN SUBMITTING ITS BILL FOR THE SERVICES RENDERED TO THIS OFFICE, REQUESTED REIMBURSEMENT UNDER THE PROVISIONS OF PUBLIC 212 (TITLE VI), WHICH PROVIDES THAT DEPARTMENTS MAY CONTRACT WITH ONE ANOTHER FOR SERVICES, WHERE THE INTEREST OF THE GOVERNMENT CAN THEREBY BE BEST SERVED, WITH THE UNDERSTANDING THAT THE COST OF SUCH SERVICES MAY BE REIMBURSED IN FULL BY THE OFFICE RECEIVING THE SAME.

(2) THE SERVICES WERE RENDERED BY THE NAVY DEPARTMENT SUBSEQUENT TO THE ENACTMENT OF PUBLIC 212, AND WOULD THEREFORE SEEM TO FALL WITHIN THE PROVISIONS OF THE SAME. ALTHOUGH THIS OFFICE MADE FORMAL REQUEST TO THE SECRETARY OF THE NAVY FOR THE PROCUREMENT OF INSPECTION SERVICES ON JUNE 28, 1932 (PRIOR TO THE ENACTMENT OF PUBLIC 212), YET IT WAS IMPOSSIBLE FOR THE NAVY DEPARTMENT TO ACT UPON THIS OFFICE'S REQUEST UNTIL AFTER THE ENACTMENT OF PUBLIC 212, SO THAT THE AGREEMENT WHEN CONFIRMED WOULD SEEM TO HAVE BEEN SUBJECT TO THE PROVISIONS OF PUBLIC 212.

(3) THE ATTACHED DOCUMENTS OF THE NAVY DEPARTMENT SHOW THAT THAT DEPARTMENT HAS PAID FOR THESE SERVICES OUT OF THEIR 1933 APPROPRIATIONS, THEREBY INDICATING THAT THE ORDER WAS IN 1933 FISCAL YEAR ITEM AND THEREFORE SUBJECT TO THE PROVISIONS OF PUBLIC 212. MOREOVER, AT THE TIME THIS OFFICE MADE ITS REQUEST, IT WAS PRESUMED THAT ONLY A 1933 NAVY DEPARTMENT APPROPRIATION, PROVIDING FOR SALARIES, WOULD BE AVAILABLE TO COVER THE EXPENDITURES.

(4) THE APPROPRIATION UNDER THE JURISDICTION OF THIS OFFICE FROM WHICH REIMBURSEMENT FOR THESE SERVICES IS TO BE MADE, IS AN APPROPRIATION WITHOUT YEAR ("ANNEX, LIBRARY OF CONGRESS, NO YEAR"), AND THE ORDER, WHEN GIVEN, CONTEMPLATED SECURING SERVICES DURING THE FISCAL YEAR 1933.

IN VIEW OF THE ABOVE-DESCRIBED CIRCUMSTANCES, IT IS THE OPINION OF THIS OFFICE THAT THE ATTACHED ACCOUNT OF THE NAVY DEPARTMENT FALLS WITHIN THE PROVISIONS OF PUBLIC LAW 212 (TITLE VI), WHICH HAS AMENDED THE PROVISIONS OF U.S. CODE, TITLE 31, SECTION 686, UNDER WHICH REIMBURSEMENT FOR SERVICES AND SUPPLIES WERE MADE TO THE NAVY DEPARTMENT PRIOR TO JUNE 30, 1932, AND THAT THE ACCOUNT IS THEREFORE PROPERLY PAYABLE IN THE AMOUNT SUBMITTED TO THE GENERAL ACCOUNTING OFFICE: PROVIDED, OF COURSE, THAT THIS OFFICE IS CORRECT IN ITS INTERPRETATION OF TITLE VI OF THE ECONOMY ACT.

ON THE VOUCHER IN QUESTION THE UNITED STATES NAVY PROPERTY ACCOUNTING OFFICER CLAIMED REIMBURSEMENT FOR SALARY AND EXPENSES OF TWO INSPECTORS IN MAKING MILL INSPECTION OF SHOP AND FIELD RIVETS FOR STRUCTURAL STEEL FOR USE IN CONNECTION WITH THE CONSTRUCTION OF THE ADDITION TO THE LIBRARY OF CONGRESS. THE VOUCHER WAS RETURNED WITHOUT CERTIFICATION UNDER THE GENERAL RULE THAT THE AMOUNT CHARGEABLE TO THE FUNDS OF AN ESTABLISHMENT OF THE GOVERNMENT FOR SERVICES PERFORMED THEREFOR BY ANOTHER ESTABLISHMENT IS LIMITED TO THE ADDITIONAL EXPENSE ACTUALLY INCURRED BY REASON OF SUCH SERVICE, EXCLUDING THE SALARY OF EMPLOYEES PERFORMING THE SERVICES, WHICH HAS BEEN HELD TO REMAIN A CHARGE AGAINST THE APPROPRIATION FOR THE DEPARTMENT OR OFFICE UNDER WHICH REGULARLY EMPLOYED. 14 COMP. DEC. 294; 15 ID. 697; 16 ID. 422; 6 COMP. GEN. 81; ID. 217; 7 ID. 709; 10 ID. 131, ID. 193, ID. 275.

THE RULE PURSUANT TO WHICH THE VOUCHER IN THE INSTANT CASE HAS BEEN DISAPPROVED FOR PAYMENT, LONG IN FORCE PRIOR TO JULY 1, 1932, HAD ITS INCEPTION AT A TIME WHEN SALARIES OF EMPLOYEES WERE SPECIFICALLY FIXED IN THE APPROPRIATION ACTS, AND WHEN THERE EXISTED NO SPECIAL STATUTORY AUTHORITY FOR PERFORMANCE OF SERVICES BY ONE DEPARTMENT OR OFFICE OF THE GOVERNMENT FOR ANOTHER. THIS RULE AND THE UNDERLYING REASONS WERE SET FORTH IN A DECISION OF MAY 8, 1928, 7 COMP. GEN. 709, 710, AS FOLLOWS:

AS STATED IN THE DECISION OF SEPTEMBER 28, 1926, 6 COMP. GEN. 217, REFERRED TO BY YOU, THE GENERAL RULE IS THAT WHERE THE SERVICE OF AN EMPLOYEE OF ONE ESTABLISHMENT OF THE GOVERNMENT IS LOANED TO ANOTHER ESTABLISHMENT, THE PAYMENT BY THE ESTABLISHMENT RECEIVING THE BENEFIT OF THE SERVICE IS LIMITED TO THE ADDITIONAL EXPENSE INCURRED BY THE EMPLOYEE DURING THE PERIOD HE IS ENGAGED ON THE WORK OF THE ESTABLISHMENT TO WHICH HE IS LOANED, THE SALARY OF THE EMPLOYEE REMAINING A CHARGE AGAINST THE APPROPRIATION OF THE ESTABLISHMENT TO WHICH HE BELONGS. IN OTHER WORDS, THE ESTABLISHMENT FOR WHICH THE SERVICE IS PERFORMED IS CHARGED ONLY WITH THE ADDITIONAL EXPENSE INCIDENT TO THE SERVICE, ON THE GROUND THAT IF THE EMPLOYEE'S SALARY SHOULD BE REIMBURSED BY THE ESTABLISHMENT TO WHICH HIS SERVICES WERE LOANED, SUCH REIMBURSEMENT WOULD HAVE THE EFFECT OF AUGMENTING THE APPROPRIATION UNDER WHICH HIS SALARY WAS ORDINARILY PAID. THE BASIS OF SUCH A RULE IS THE ASSUMPTION THAT THE EMPLOYEE'S SERVICES CAN BE SPARED BY THE ESTABLISHMENT BY WHICH HE IS EMPLOYED, OTHERWISE SUCH SERVICES WOULD NOT BE LOANED. SEE ALSO 6 COMP. GEN. 81.

THIS RULE WAS APPLIED, ALSO, IN THE OPERATION OF THE ACT OF MAY 21, 1926, 44 STAT. 605, AUTHORIZING THE USE OF THE NAVAL WORKING FUND FOR PERFORMANCE OF SERVICES FOR OTHER DEPARTMENTS, IN DECISION OF DECEMBER 20, 1930, 10 COMP. GEN. 275, 277, AS FOLLOWS:

* * * IT WAS POINTED OUT IN THAT DECISION THAT IT IS RECOGNIZED THAT ANY MATERIAL AMOUNT OF SUCH ADDITIONAL WORK REQUIRES INCREASED EXPENSE, AND IT WAS HELD TO BE IN CONFORMITY WITH SECTION 3678, REVISED STATUTES, TO REQUIRE THAT THE AMOUNT OF SUCH ADDITIONAL EXPENSE AS CAN BE ACCURATELY DETERMINED SHALL BE REIMBURSED BY THE PROCURING DEPARTMENT. THIS IS THE UNDERLYING PRINCIPLE OF THE NUMEROUS DECISIONS INVOLVING REIMBURSEMENT FOR OTHERWISE AUTHORIZED AND PROPER SERVICES RENDERED BY ONE DEPARTMENT OR ESTABLISHMENT FOR ANOTHER, AND IT IS IN THE LIGHT OF THOSE DECISIONS THAT THERE IS FOR DETERMINATION THE "ACTUAL COST"OF SERVICES WITHIN THE MEANING OF THE CITED ACT OF MAY 21, 1926. CLEARLY, THERE IS NO ACTUAL COST TO BE REIMBURSED WHERE A DEPARTMENT HAS BEEN PUT TO NO EXPENSE THAT WOULD NOT HAVE BEEN INCURRED IF THE SERVICES IN QUESTION HAD NOT BEEN PERFORMED, NOR IS THERE ANY BASIS FOR REIMBURSEMENT AS ACTUAL COST OF AMOUNTS WHICH CAN NOT BE ACCURATELY DETERMINED AND SHOWN TO BE DIRECTLY DUE TO THE PERFORMANCE OF THE SERVICE IN QUESTION.

THE FACTS PRESENTED ARE NOT SUFFICIENT TO AUTHORIZE REIMBURSEMENT FROM APPROPRIATIONS OF THE BUREAU OF LIGHTHOUSES, DEPARTMENT OF COMMERCE, FOR THE SALARIES OF INSPECTORS WHICH WOULD HAVE BEEN PAID UNDER APPROPRIATIONS FOR THE BUREAU OF ORDNANCE IF THE INSPECTIONS HAD NOT BEEN MADE. * * *

SECTION 601, TITLE VI, OF THE ECONOMY ACT PROVIDES:

SECTION 7 OF THE ACT ENTITLED "AN ACT MAKING APPROPRIATIONS FOR FORTIFICATIONS AND OTHER WORKS OF DEFENSE, FOR THE ARMAMENT THEREOF, AND FOR THE PROCUREMENT OF HEAVY ORDNANCE FOR TRIAL AND SERVICE, FOR THE FISCAL YEAR ENDING JUNE 30, 1921, AND FOR OTHER PURPOSES," APPROVED MAY 21, 1920 (U.S.C., TITLE 31, SEC. 686), IS AMENDED TO READ AS FOLLOWS:

"SEC. 7. (A) ANY EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT OF THE GOVERNMENT, OR ANY BUREAU OR OFFICE THEREOF, IF FUNDS ARE AVAILABLE THEREFOR AND IF IT IS DETERMINED BY THE HEAD OF SUCH EXECUTIVE DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE TO BE IN THE INTEREST OF THE GOVERNMENT SO TO DO, MAY PLACE ORDERS WITH ANY OTHER SUCH DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE FOR MATERIALS, SUPPLIES, EQUIPMENT, WORK, OR SERVICES, OF ANY KIND THAT SUCH REQUISITIONED FEDERAL AGENCY MAY BE IN A POSITION TO SUPPLY OR EQUIPPED TO RENDER, AND SHALL PAY PROMPTLY BY CHECK TO SUCH FEDERAL AGENCY AS MAY BE REQUISITIONED, UPON ITS WRITTEN REQUEST, EITHER IN ADVANCE OR UPON THE FURNISHING OR PERFORMANCE THEREOF, ALL OR PART OF THE ESTIMATED OR ACTUAL COST THEREOF AS DETERMINED BY SUCH DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE AS MAY BE REQUISITIONED; BUT PROPER ADJUSTMENTS ON THE BASIS OF THE ACTUAL COST OF THE MATERIALS, SUPPLIES, OR EQUIPMENT FURNISHED, OR WORK OR SERVICES PERFORMED, PAID FOR IN ADVANCE, SHALL BE MADE AS MAY BE AGREED UPON BY THE DEPARTMENTS, ESTABLISHMENTS, BUREAUS, OR OFFICES CONCERNED: PROVIDED, HOWEVER, THAT IF SUCH WORK OR SERVICES CAN BE AS CONVENIENTLY OR MORE CHEAPLY PERFORMED BY PRIVATE AGENCIES SUCH WORK SHALL BE LET BY COMPETITIVE BIDS TO SUCH PRIVATE AGENCIES. BILLS RENDERED, OR REQUESTS FOR ADVANCE PAYMENTS MADE, PURSUANT TO ANY SUCH ORDER, SHALL NOT BE SUBJECT TO AUDIT OR CERTIFICATION IN ADVANCE OF PAYMENT.

"/B) AMOUNTS PAID AS PROVIDED IN SUBSECTION (A) SHALL BE CREDITED, (1) IN THE CASE OF ADVANCE PAYMENTS, TO SPECIAL WORKING FUNDS, OR (2) IN THE CASE OF PAYMENTS OTHER THAN ADVANCE PAYMENTS, TO THE APPROPRIATIONS OR FUNDS AGAINST WHICH CHARGES HAVE BEEN MADE PURSUANT TO ANY SUCH ORDER, EXCEPT AS HEREINAFTER PROVIDED. THE SECRETARY OF THE TREASURY SHALL ESTABLISH SUCH SPECIAL WORKING FUNDS AS MAY BE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS SUBSECTION. SUCH AMOUNTS PAID SHALL BE AVAILABLE FOR EXPENDITURE IN FURNISHING THE MATERIALS, SUPPLIES, OR EQUIPMENT, OR IN PERFORMING THE WORK OR SERVICES, OR FOR THE OBJECTS SPECIFIED IN SUCH APPROPRIATIONS OR FUNDS. WHERE MATERIALS, SUPPLIES, OR EQUIPMENT ARE FURNISHED FROM STOCKS ON HAND, THE AMOUNTS RECEIVED IN PAYMENT THEREFOR SHALL BE CREDITED TO APPROPRIATIONS OR FUNDS, AS MAY BE AUTHORIZED BY OTHER LAW, OR, IF NOT SO AUTHORIZED, SO AS TO BE AVAILABLE TO REPLACE THE MATERIALS, SUPPLIES, OR EQUIPMENT, EXCEPT THAT WHERE THE HEAD OF ANY SUCH DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE DETERMINES THAT SUCH REPLACEMENT IS NOT NECESSARY THE AMOUNTS PAID SHALL BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.

"/C) ORDERS PLACED AS PROVIDED IN SUBSECTION (A) SHALL BE CONSIDERED AS OBLIGATIONS UPON APPROPRIATIONS IN THE SAME MANNER AS ORDERS OR CONTRACTS PLACED WITH PRIVATE CONTRACTORS. ADVANCE PAYMENTS CREDITED TO A SPECIAL WORKING FUND SHALL REMAIN AVAILABLE UNTIL EXPENDED.'

THESE PROVISIONS WOULD APPEAR TO CONTEMPLATE THAT THE APPROPRIATIONS FOR THE DEPARTMENT OR OFFICE FOR WHICH THE WORK IS TO BE PERFORMED SHOULD BEAR THE TOTAL DIRECT COST THEREOF, INCLUDING PERSONAL SERVICES. NOTE PARTICULARLY THE SPECIFIC REFERENCE TO "SERVICES PERFORMED" AND THE AUTHORIZED ADJUSTMENT AS MAY BE AGREED TO BY THE DEPARTMENTS, ESTABLISHMENTS, BUREAUS, OR OFFICES CONCERNED ON THE BASIS OF THE ACTUAL COST OF THE SERVICES PERFORMED.

IN VIEW OF THESE STATUTORY PROVISIONS AND THE GENERAL PRACTICE OF APPROPRIATING LUMP SUMS FOR PERSONAL SERVICES UNDER THE VARIOUS BRANCHES OF THE GOVERNMENT, IT REASONABLY MAY BE CONCLUDED THAT THE RULE ABOVE STATED, IN FORCE PRIOR TO JULY 1, 1932, OF EXCLUDING SALARIES OF REGULAR EMPLOYEES WHICH WOULD HAVE BEEN PAID IN ANY EVENT, IS NOT TO BE REGARDED AS PRECLUDING, IN MAKING ADJUSTMENTS ON ACCOUNT OF WORK PERFORMED BY ONE DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE FOR ANOTHER UNDER THE PROVISIONS OF THE SAID SECTION 601, THE CONSIDERATION, AS A PART OF THE ACTUAL COST, OF THE SALARY OR COMPENSATION OF OFFICERS OR EMPLOYEES ENGAGED DIRECTLY ON THE WORK, INCLUDING THE AMOUNT TO BE DEDUCTED AND IMPOUNDED UNDER TITLE I OF THE ECONOMY ACT. SEE DECISION OF SEPTEMBER 13, 1932, A-43585, 12 COMP. GEN. 345.

YOU ARE ADVISED, THEREFORE, THAT THE VOUCHER IN QUESTION WILL BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT AND PROPER.