A-4808, NOVEMBER 17, 1924, 4 COMP. GEN. 453

A-4808: Nov 17, 1924

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE CLAIM FOR REIMBURSEMENT IS ONLY ALLOWABLE ON THE BASIS OF A QUANTUM MERUIT. THE OBJECTION TO THE HIRE OF AUTOMOBILES FOR LENGTHY PERIODS AS BEING AN INDIRECT VIOLATION OF THE PROHIBITION AGAINST THE PURCHASE OF MOTOR- PROPELLED PASSENGER-CARRYING VEHICLES IS NOT APPLICABLE WHERE THE DEPARTMENT OR SERVICE HAS BEEN GIVEN STATUTORY AUTHORITY TO PURCHASE PASSENGER-CARRYING VEHICLE. 1924: THE FOLLOWING IS A COPY OF A LETTER RECEIVED FROM E. 1924: THAT ALL FIELD EMPLOYEES OF THE GENERAL LAND OFFICE MAY HAVE EARLY AND SPECIFIC INSTRUCTIONS AS TO REQUIREMENTS CONCERNING NECESSITY FOR ADVERTISING AND THE EXECUTION OF FORMAL CONTRACTS. REQUEST IS HEREBY MADE FOR AN ADVANCE DECISION OR RULING. A DISBURSING OFFICER IS ENTITLED UNDER THE LAW TO A DECISION ONLY ON A QUESTION SPECIFICALLY INVOLVED IN A VOUCHER WHICH IS PROPERLY BEFORE HIM FOR PAYMENT. 4 COMP.

A-4808, NOVEMBER 17, 1924, 4 COMP. GEN. 453

CONTRACTS - AUTO HIRE AN AGREEMENT FOR THE HIRE OF AN AUTOMOBILE TO A FIELD AGENT OF THE GENERAL LAND OFFICE, DEPARTMENT OF THE INTERIOR, FOR 11 DAYS DURING THE PERIOD FROM APRIL 2 TO 18, 1924, AT $12 PER DAY, $132, NOT HAVING BEEN REDUCED TO WRITING AS REQUIRED BY SECTION 3744, REVISED STATUTES, THE CLAIM FOR REIMBURSEMENT IS ONLY ALLOWABLE ON THE BASIS OF A QUANTUM MERUIT. THE AUTHORITY GIVEN THE DEPARTMENT OF THE INTERIOR BY THE ACT OF JUNE 5, 1924, 43 STAT. 392, TO PURCHASE SUPPLIES AND EQUIPMENT OR PROCURE PERSONAL SERVICES IN THE OPEN MARKET WHERE THE AMOUNT DOES NOT EXCEED $100, DOES NOT AUTHORIZE THE SPLITTING UP OF PROCUREMENTS WHICH WOULD OTHERWISE EXCEED $100 INTO SMALLER UNITS IN ORDER TO AVOID COMPLIANCE WITH SECTIONS 3709 AND 3744, REVISED STATUTES. THE OBJECTION TO THE HIRE OF AUTOMOBILES FOR LENGTHY PERIODS AS BEING AN INDIRECT VIOLATION OF THE PROHIBITION AGAINST THE PURCHASE OF MOTOR- PROPELLED PASSENGER-CARRYING VEHICLES IS NOT APPLICABLE WHERE THE DEPARTMENT OR SERVICE HAS BEEN GIVEN STATUTORY AUTHORITY TO PURCHASE PASSENGER-CARRYING VEHICLE, AND IN SUCH CASES CONTRACTS FOR THE HIRE FOR EXTENDED PERIODS MAY BE MADE WHEN IN THE INTERESTS OF THE GOVERNMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, NOVEMBER 17, 1924:

THE FOLLOWING IS A COPY OF A LETTER RECEIVED FROM E. D. M. FOWLE, SPECIAL DISBURSING AGENT, GENERAL LAND OFFICE, ON AUGUST 19, 1924:

THAT ALL FIELD EMPLOYEES OF THE GENERAL LAND OFFICE MAY HAVE EARLY AND SPECIFIC INSTRUCTIONS AS TO REQUIREMENTS CONCERNING NECESSITY FOR ADVERTISING AND THE EXECUTION OF FORMAL CONTRACTS, COVERING PURCHASES AND SERVICES OTHER THAN PERSONAL, AS WELL AS DEFINITELY SPECIFIED RULINGS AS TO WHEN AND IN WHAT MANNER THE EXCEPTIONS, UNDER THE PROVISIONS OF THE ACT OF JUNE 5, 1924, FOR THE INTERIOR DEPARTMENT, MAY BE APPLIED, SPECIFICALLY WITH REFERENCE TO THE HIRE OF SPECIAL TRANSPORTATION, REQUEST IS HEREBY MADE FOR AN ADVANCE DECISION OR RULING.

I AM ENCLOSING HEREWITH COPY OF MY LETTER, DATED AUGUST 11, 1924, DIRECTED TO SPECIAL AGENT HENRY H. LEPPER, GLASGOW, MONTANA, CONCERNING CLAIMS OF THE MAGRUDER MOTOR CO. INC., GLASGOW, MONTANA, FOR AUTO HIRE, REPLYING TO POINTED INQUIRIES AS TO WHY I FAILED TO MAKE PAYMENT OF THE CLAIMS, AS PRESENTED, AND MY REASONS FOR TRANSMITTING SAME TO YOUR OFFICE FOR DIRECT SETTLEMENT AS CLAIMS.

A DISBURSING OFFICER IS ENTITLED UNDER THE LAW TO A DECISION ONLY ON A QUESTION SPECIFICALLY INVOLVED IN A VOUCHER WHICH IS PROPERLY BEFORE HIM FOR PAYMENT. 4 COMP. GEN. 159, 160. HOWEVER, THIS DISBURSING OFFICER PRESENTS CERTAIN MATTERS AS TO WHICH HE SHOULD BE ADVISED, AND IN VIEW THEREOF IT IS DEEMED PROPER TO BRING THEM TO YOUR ATTENTION AND TO STATE GENERALLY THE LAW AND PROCEDURE APPLICABLE.

THE CLAIM OF THE MAGRUDER MOTOR CO. (INC.), REFERRED TO IN THE DISBURSING AGENT'S LETTER, SUPRA, WAS FOR THE HIRE BY HENRY H. LEPPER, SPECIAL AGENT, GENERAL LAND OFFICE, DEPARTMENT OF THE INTERIOR, OF ONE "CLOSED OVERLAND AUTOMOBILE," FOR 11 DAYS DURING THE PERIOD FROM APRIL 2 TO 18, 1924, AT $12 PER DAY, THE HIRE OF THE SAID AUTOMOBILE, CERTIFIED AS FOR THE OFFICIAL USE OF SAID AGENT BEING BY INFORMAL AGREEMENT NOT REDUCED TO WRITING AS REQUIRED BY SECTION 3744, REVISED STATUTES.

THE VOUCHER CONSTITUTING THE CLAIM WAS FORWARDED TO THIS OFFICE FOR DIRECT SETTLEMENT, AS REQUIRED BY DECISION OF JULY 5, 1924, 4 COMP. GEN. 14, BEING TRANSMITTED BY THE ACTING COMMISSIONER OF THE GENERAL LAND OFFICE, APPROVED FOR SETTLEMENT IN THE AMOUNT CLAIMED AND BEING ACCOMPANIED BY CERTIFICATES BY THREE RESIDENTS OF GLASGOW, MONT., WHO "HAVE BEEN ENGAGED IN THE HIRE OF AUTOMOBILES" THAT THE CHARGE "OF $12 PER DAY IS A VERY REASONABLE RATE FOR THE USE OF SAID AUTOMOBILE IN THE VICINITY OF GLASGOW, MONT.' UPON THE FACTS NOW APPEARING THE AMOUNT CLAIMED WILL BE ALLOWED ON THE BASIS OF A QUANTUM MERUIT.

THERE IS ATTACHED TO THE VOUCHER CONSTITUTING SAID CLAIM A LETTER, DATED APRIL 24, 1924, FROM E. D. M. FOWLE TO THE COMMISSIONER OF THE GENERAL LAND OFFICE, IN WHICH IT IS STATED:

RULE 233, CIRCULAR 616, APPROVED AUGUST 9, 1918, BY THE SECRETARY OF THE INTERIOR, IS A LAWFUL REGULATION PROVIDING AUTHORITY FOR THE HIRE OF SPECIAL TRANSPORTATION:

"SPECIAL CONVEYANCES: HIRE OF SPECIAL CONVEYANCES, SUCH AS TAXICABS OR OTHER AUTOMOBILES, LIVERY, OR BOAT, ONLY WHEN NO PUBLIC OR REGULAR MEANS OF TRANSPORTATION ARE AVAILABLE AND THE NECESSARY INCIDENTAL EXPENSES CONNECTED THEREWITH, SUCH AS FEED AND STABLING OF HORSES AND THE SUBSISTENCE OF DRIVER, FERRIAGE, AND TOLLS. ALSO SERVICES OF AND SUBSISTENCE OF GUIDE WHEN NO DRIVER IS EMPLOYED. IF THE CHARGES FOR SPECIAL CONVEYANCE INCLUDE FEED AND STABLING OF HORSES AND SUBSISTENCE OF DRIVER, OR ANY SUCH ITEMS, THE PRINCIPAL VOUCHER OR SUBVOUCHER MUST SO STATE. THE MAXIMUM AMOUNT THAT MAY BE PAID BY SPECIAL DISBURSING AGENTS WITHOUT SPECIFIC AUTHORIZATION BY THE COMMISSIONER IS $20 A DAY FOR HIRE OF EACH AUTO. IF IN RARE CASES IT IS NECESSARY TO EXCEED THIS RATE, THE EXCESS AMOUNTS MUST NOT BE PAID UNTIL FULL EXPLANATION HAS BEEN SUBMITTED TO THE COMMISSIONER AND RECEIVES HIS APPROVAL.'

CIRCULAR 459, APPROVED FEBRUARY 21, 1916:

"BY DIRECTION OF THE SECRETARY, THE FOLLOWING INSTRUCTIONS ARE ISSUED FOR YOUR GUIDANCE IN THE MATTER OF THE HIRE OF AUTOMOBILES:

"1. THE HIRE OF AUTOMOBILES IS AUTHORIZED ONLY FOR SINGLE TRIPS, AND IN CASES WHERE IT IS CLEARLY ADVANTAGEOUS TO THE GOVERNMENT AS AGAINST OTHER AVAILABLE MEANS OF CONVEYANCE.'

THERE WAS TRANSMITTED IN CONNECTION WITH THE REQUEST FOR DECISION A COPY OF A LETTER DATED JULY 30, 1924, FROM THE ACTING ASSISTANT COMMISSIONER OF THE GENERAL LAND OFFICE TO HENRY H. LEPPER, SPECIAL AGENT, GLASGOW, MONT., WHICH READS:

REFERRING TO YOUR INQUIRY OF JULY 21, 1924, VOUCHERS IN FAVOR OF THE MAGRUDER MOTOR COMPANY AND YOUR OWN VOUCHER FOR PAYMENTS MADE TO THAT COMPANY ARE HELD PENDING RECEIPT OF "WRITTEN STATEMENTS FROM ONE OR MORE PERSONS ENGAGED IN THE SAME VICINITY IN THE HIRE OF AUTOMOBILES AS TO WHAT THEY CONSIDER A REASONABLE RENTAL FOR THE MACHINE USED," REQUIRED BY THE COMPTROLLER'S DECISION OF JULY 5, 1924, A COPY OF WHICH IS INCLOSED HEREWITH.

IF YOU CONTRACT WITH ANY MOTOR COMPANY FOR THE HIRE OF A MACHINE, FOR SUCH A PERIOD AS WILL AMOUNT TO MORE THAN $100, IT WILL BE NECESSARY FOR YOU TO COMPLY WITH SECS. 3709 AND 3744, R.S., BUT IF THE SERVICE (WHETHER FOR THE TRIP OR FOR THE WEEK) AMOUNTS TO LESS THAN $100, THE STATUTORY REQUIREMENT AS TO ADVERTISING AND AS TO CONTRACTS IS WAIVED BY THE INTERIOR APPROPRIATION ACT OF 1925.

THE ACT OF JUNE 5, 1924, 43 STAT. 392, PROVIDES:

THE PURCHASE OF SUPPLIES AND EQUIPMENT OR THE PROCUREMENT OF SERVICES FOR THE DEPARTMENT OF THE INTERIOR, THE BUREAUS AND OFFICES THEREOF, INCLUDING HOWARD UNIVERSITY AND THE COLUMBIA INSTITUTION FOR THE DEAF, AT THE SEAT OF GOVERNMENT, AS WELL AS THOSE LOCATED IN THE FIELD OUTSIDE THE DISTRICT OF COLUMBIA, MAY BE MADE IN OPEN MARKET WITHOUT COMPLIANCE WITH SECTIONS 3709 AND 3744 OF THE REVISED STATUTES OF THE UNITED STATES, IN THE MANNER COMMON AMONG BUSINESS MEN WHEN THE AGGREGATE AMOUNT OF THE PURCHASE OR THE SERVICE DOES NOT EXCEED $100 IN ANY INSTANCE.

THE APPARENT REASON FOR REFERENCE TO RULE 233, CIRCULAR 616, APPROVED AUGUST 9, 1918, IS TO SHOW THE AUTHORITY OF THE FIELD OFFICERS OF THE GENERAL LAND OFFICE TO ENTER INTO CONTRACTS OF HIRE SUCH AS HERE IN QUESTION. THE FIRST SENTENCE OF RULE 233, CIRCULAR 616, CORRESPONDS TO THE SAME AUTHORITY GRANTED ALL FIELD EMPLOYEES OF THE DEPARTMENT OF THE INTERIOR. SEE PARAGRAPH 7, PAGE 4, OF THE TRAVEL REGULATIONS OF THE DEPARTMENT OF THE INTERIOR, APPROVED SEPTEMBER 30, 1914.

CIRCULAR 459, APPROVED FEBRUARY 21, 1916, WAS ISSUED AT A TIME WHEN NONE OF THE APPROPRIATIONS FOR THE GENERAL LAND OFFICE MADE PROVISION FOR THE PURCHASE, MAINTENANCE, AND OPERATION OF MOTOR-PROPELLED PASSENGER-CARRYING VEHICLES. SEE THE APPROPRIATIONS IN QUESTION, ACT OF MARCH 3, 1915, 38 STAT. 854 TO 856, AND SEE ALSO SECTION 5 OF THE ACT OF JULY 16, 1914, 38 STAT. 508, 509, WHICH PROVIDED:

NO APPROPRIATION MADE IN THIS OR ANY OTHER ACT SHALL BE AVAILABLE FOR THE PURCHASE OF ANY MOTOR-PROPELLED OR HORSE-DRAWN PASSENGER CARRYING VEHICLE FOR THE SERVICE OF ANY OF THE EXECUTIVE DEPARTMENTS OR OTHER GOVERNMENT ESTABLISHMENTS, OR ANY BRANCH OF THE GOVERNMENT SERVICE, UNLESS SPECIFIC AUTHORITY IS GIVEN THEREFOR, AND AFTER THE CLOSE OF THE FISCAL YEAR NINETEEN HUNDRED AND FIFTEEN THERE SHALL NOT BE EXPENDED OUT OF ANY APPROPRIATION MADE BY CONGRESS ANY SUM FOR PURCHASE, MAINTENANCE, REPAIR, OR OPERATION OF MOTOR-PROPELLED OR HORSE-DRAWN PASSENGER-CARRYING VEHICLES FOR ANY BRANCH OF THE PUBLIC SERVICE OF THE UNITED STATES UNLESS THE SAME IS SPECIFICALLY AUTHORIZED BY LAW, AND IN THE ESTIMATES FOR THE FISCAL YEAR NINETEEN HUNDRED AND SIXTEEN AND SUBSEQUENT FISCAL YEARS THERE SHALL BE SUBMITTED IN DETAIL ESTIMATES FOR SUCH NECESSARY OR OPERATION OF ALL MOTOR-PROPELLED OR HORSE-DRAWN PASSENGER-CARRYING VEHICLES, SPECIFYING THE SUMS REQUIRED, THE PUBLIC PURPOSES FOR WHICH SAID VEHICLES ARE INTENDED, AND THE OFFICIALS OR EMPLOYEES BY WHOM THE SAME ARE TO BE USED.

IN CONSTRUING THE SECTION JUST QUOTED IT WAS HELD IN DECISION OF JANUARY 19, 1915, 21 COMP. DEC. 462, THAT---

* * * WHILE THE ACT OF JULY 16, 1914, SUPRA, SPEAKS IN TERMS OF THE PURCHASE OF AUTOMOBILES, YET TO HOLD THAT AN AUTOMOBILE MAY BE HIRED BY THE MONTH OR BY THE YEAR WOULD BE AN EVASION OF THE LAW AND WOULD NULLIFY IT, INASMUCH AS EVERYONE WHO COULD NOT PURCHASE A MACHINE MIGHT ACCOMPLISH THE SAME PURPOSE BY HIRING IT.

IT FOLLOWED FROM THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 16, 1914, AND THE DECISIONS CONSTRUING THAT SECTION, THAT ONLY TRIP HIRES OF PASSENGER-CARRYING VEHICLES WERE AUTHORIZED IN THE ABSENCE OF AUTHORITY TO PURCHASE SUCH VEHICLES; AND THAT UNDOUBTEDLY ACCOUNTED FOR PARAGRAPH 1 OF CIRCULAR NO. 459, APPROVED FEBRUARY 21, 1916, THE AUTHORITY TO MAKE THE TRIP ENGAGEMENTS, IN THE ABSENCE OF AUTHORITY TO PURCHASE, BEING ON THE SAME BASIS AS THE AUTHORITY TO INCUR EXPENSES FOR NECESSARY OFFICIAL TRANSPORTATION BY THE MORE REGULAR MEANS OF PUBLIC CONVEYANCE SUCH AS BY STREET CAR STEAMBOAT, RAILROAD, ETC. HOWEVER, SINCE THE ISSUANCE OF CIRCULAR NO. 459, AUTHORITY TO PURCHASE PASSENGER-CARRYING VEHICLES HAS BEEN GRANTED IN CONNECTION WITH AT LEAST ONE APPROPRIATION, TO WIT, THE ONE HERE IN QUESTION, FOR "PROTECTING PUBLIC LANDS, TIMBER, ETC., " ACT OF JUNE 5, 1924, 43 STAT. 395, UNDER WHICH, IT IS UNDERSTOOD, PRACTICALLY ALL OF THE HIRINGS OF PASSENGER-CARRYING VEHICLES ARE MADE, HIRINGS OF SUCH VEHICLES UNDER THE OTHER APPROPRIATIONS OF THE GENERAL LAND OFFICE BEING ONLY FOR OCCASIONAL TRIPS.

IT APPEARS THAT CIRCULAR NO. 459, SUPRA, SHOULD BE AMENDED, IF IT HAS NOT ALREADY BEEN, SO THAT HIRINGS UNDER THE APPROPRIATION FOR "PROTECTING PUBLIC LANDS, TIMBER, ETC., " MAY BE MADE FOR EXTENDED PERIODS WHERE TO SO HIRE IS IN THE INTERESTS OF THE UNITED STATES. THERE WOULD APPEAR NO JUSTIFICATION FOR REPEATED SINGLE TRIP HIRES WHERE THERE IS AUTHORITY TO HIRE FOR EXTENDED PERIODS AND THE NEEDS OF THE SERVICE CAN BE SUPPLIED AT MORE ADVANTAGEOUS RATES BY THE HIRING FOR AN EXTENDED PERIOD. NEITHER IS THERE AUTHORITY FOR SPLITTING NONPERSONAL SERVICE ENGAGEMENTS MERELY TO AVOID THE REQUIREMENT OF LAW AS TO ADVERTISING AND REDUCING CONTRACTS TO WRITING AS REQUIRED BY SECTIONS 3709 AND 3744, REVISED STATUTES, SUCH AS MAKING TWO ENGAGEMENTS FOR HIRE FOR 5 DAYS EACH AT $12 A DAY INSTEAD OF ONE ENGAGEMENT FOR 10 DAYS AT THE SAME RATE. SEE GENERALLY DECISION OF AUGUST 6, 1924, 4 COMP. GEN. 159, AS TO THE REQUIREMENTS OF, AND PROCEDURE, ETC., IN CONNECTION WITH, THE $100 PURCHASE PROVISION FOR THE INTERIOR DEPARTMENT, QUOTED, SUPRA. ..END :