A-70371, SEPTEMBER 15, 1936, 16 COMP. GEN. 241

A-70371: Sep 15, 1936

Additional Materials:

Contact:

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

 

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

ASKS THAT THERE BE FURTHER CONSIDERED THE QUESTION WHICH YOU SET FORTH AS FOLLOWS: REFERENCE IS MADE TO DECISION A-70371. THAT DECISION IS TO THE EFFECT THAT IN CONNECTION WITH THE EMERGENCY CONSERVATION WORK THE DEPARTMENT OF AGRICULTURE MAY NOT APPLY ITS REGULATIONS. THIS IS CONTRARY TO THE IMPRESSION THE DEPARTMENT HAS HAD FROM THE BEGINNING OF THE EMERGENCY WORK PROGRAM. IS AS FOLLOWS: "DEPARTMENTAL REGULATIONS. EQUIPMENT FROM THE EMERGENCY CONSERVATION FUND FOR USE IN CONNECTION WITH THE EMERGENCY CONSERVATION WORK WILL BE MADE UNDER THE REGULATIONS. FROM THE OUTSET IT HAS BEEN COMMONLY UNDERSTOOD THAT THE INTENT OF THIS PARAGRAPH WAS TO ENABLE EACH DEPARTMENT TO HANDLE ITS TRANSACTIONS RELATING TO THE EMERGENCY CONSERVATION WORK IN ACCORDANCE WITH ITS USUAL PRACTICES.

A-70371, SEPTEMBER 15, 1936, 16 COMP. GEN. 241

EQUIPMENT - EXCHANGE OF OLD FOR NEW - EMERGENCY CONSERVATION WORK THE EXCHANGE OF OLD PROPERTY IN PARTIAL PAYMENT FOR NEW, WITHOUT COVERING THE VALUE OF THE OLD INTO THE TREASURY AS A MISCELLANEOUS COVERING THE VALUE OF THE OLD INTO THE TREASURY AS A MISCELLANEOUS RECEIPT, NOT BEING AUTHORIZED UNLESS EXPRESSLY PROVIDED FOR BY STATUTE, THE PROVISIONS AUTHORIZING SUCH EXCHANGES UNDER DEPARTMENT OF AGRICULTURE APPROPRIATIONS MAY NOT BE EXTENDED TO EMERGENCY CONSERVATION WORK APPROPRIATIONS EXPENDED UNDER THE DIRECTION AND CONTROL OF THAT DEPARTMENT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, SEPTEMBER 15, 1936:

YOUR LETTER OF JUNE 1, 1936, ASKS THAT THERE BE FURTHER CONSIDERED THE QUESTION WHICH YOU SET FORTH AS FOLLOWS:

REFERENCE IS MADE TO DECISION A-70371, DATED MAY 2, TO MAJOR E. C. MORTON, FINANCE OFFICER, U.S. ARMY.

THAT DECISION IS TO THE EFFECT THAT IN CONNECTION WITH THE EMERGENCY CONSERVATION WORK THE DEPARTMENT OF AGRICULTURE MAY NOT APPLY ITS REGULATIONS, MADE IN ACCORDANCE WITH LAW (TITLE 5, SEC. 547, U.S.C.), AUTHORIZING THE EXCHANGE OF MOTOR-PROPELLED VEHICLES, TRACTORS, ROAD EQUIPMENT, ETC., OR PARTS THEREOF, IN WHOLE OR PART PAYMENT FOR OTHER VEHICLES, TRACTORS, ETC., OR PARTS. THIS IS CONTRARY TO THE IMPRESSION THE DEPARTMENT HAS HAD FROM THE BEGINNING OF THE EMERGENCY WORK PROGRAM, AND IN MY OPINION THE QUESTION MERITS FURTHER CONSIDERATION.

THE EMERGENCY CONSERVATION ACT OF MARCH 31, 1933, AUTHORIZED THE PRESIDENT TO MAKE RULES AND REGULATIONS GOVERNING THAT ACTIVITY. SECTION 14 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935, APPROVED APRIL 8, 1935, EXTENDED THE TIME LIMIT CONTAINED IN THE ACT OF MARCH 31, 1933, TO AND INCLUDING MARCH 31, 1937. SECTION 1 OF THE APRIL 8 ACT CONTAINED AN APPROPRIATION FOR THE CIVILIAN CONSERVATION CORPS, DEFINED BY SECTION 3, TITLE I OF THE SECOND DEFICIENCY APPROPRIATION ACT, FISCAL YEAR 1935, APPROVED AUGUST 12, 1935, AS EMBRACING EMERGENCY CONSERVATION WORK OF THE CHARACTER CARRIED ON PRIOR TO APRIL 1, 1935, UNDER AUTHORITY OF THE ACT OF MARCH 31, 1933.

SECTION 5 OF THE "REGULATIONS GOVERNING THE FISCAL TRANSACTIONS OF THE EMERGENCY CONSERVATION WORK," APPROVED APRIL 17, 1933, AND STILL IN EFFECT, IS AS FOLLOWS:

"DEPARTMENTAL REGULATIONS.--- PROCUREMENT OF SERVICES, SUPPLIES, AND EQUIPMENT FROM THE EMERGENCY CONSERVATION FUND FOR USE IN CONNECTION WITH THE EMERGENCY CONSERVATION WORK WILL BE MADE UNDER THE REGULATIONS, OR PROCEDURE OF THE PROCURING DEPARTMENT.'

FROM THE OUTSET IT HAS BEEN COMMONLY UNDERSTOOD THAT THE INTENT OF THIS PARAGRAPH WAS TO ENABLE EACH DEPARTMENT TO HANDLE ITS TRANSACTIONS RELATING TO THE EMERGENCY CONSERVATION WORK IN ACCORDANCE WITH ITS USUAL PRACTICES, RECOGNIZING THAT ANY VARIATION FROM USUAL PROCEDURE AND PRACTICE WOULD BE CONFUSING, A CONTINUOUS SOURCE OF ERROR AND INIMICAL TO THE BEST INTERESTS OF THE WORK. THIS DEPARTMENT HAS HAD NO QUESTION WHATEVER AS TO THE PROPRIETY OF PROCEEDING UNDER ITS REGULATIONS AND IN ACCORDANCE WITH THE USUAL PRACTICE OF THE DEPARTMENT, AND THERE SEEMS TO BE NO DOUBT THAT THAT WAS THE INTENTION OF SECTION 5 OF THE REGULATIONS ABOVE QUOTED. IN FACT, HAD THIS NOT BEEN THE INTENTION IT WOULD HAVE BEEN NECESSARY TO PRESCRIBE OR DESIGNATE OTHER REGULATIONS TO GOVERN. OBVIOUSLY SINCE THE PERSONNEL FAMILIAR WITH THE REGULAR ACTIVITIES OF THE DEPARTMENT IS NECESSARILY UTILIZED FOR THE GUIDANCE AND GENERAL SUPERVISION OF THE EMERGENCY CONSERVATION ACTIVITIES, THE MOST EFFICIENT PROCEDURE IS TO AVOID SO FAR AS POSSIBLE VARIATIONS FROM ESTABLISHED PROCEDURE, AS CONTEMPLATED BY PARAGRAPH 5 OF THE REGULATIONS.

IN LINE WITH THE IMPRESSION ABOVE EXPRESSED, ECW PROCUREMENTS FROM THE BEGINNING HAVE BEEN MADE IN ACCORDANCE WITH THE DEPARTMENT'S REGULATIONS (EXCEPT WHEN HANDLED BY STATES UNDER THE SUPPLEMENTAL REGULATIONS FOR EMERGENCY CONSERVATION WORK, APPROVED BY THE DIRECTOR AND THE PRESIDENT MAY 20, 1933). THE EXCHANGE OF PARTS HERETOFORE HAS NOT BEEN QUESTIONED AND REGULATIONS PERTAINING THERETO HAVE BEEN CONSIDERED AS FULLY APPLICABLE TO THE WORK AS ANY OTHER REGULATIONS OF THE DEPARTMENT. THE RULING THAT SOME OF THESE REGULATIONS ARE INAPPLICABLE RAISES THE QUESTION WHETHER THE DEPARTMENT'S REGULATIONS GENERALLY MAY BE SO CLASSED AND CREATES UNCERTAINTY AS TO THE RULES THAT ARE TO GOVERN IF THE DEPARTMENT'S REGULATIONS MAY NOT BE FOLLOWED. I SHOULD APPRECIATE IT THEREFORE IF YOU WOULD RECONSIDER THE CONCLUSION IN THE MAY 2 DECISION.

AS THERE APPEARS TO BE INVOLVED NO MISTAKE OF FACT, ERROR IN COMPUTATION, OR THE PRODUCTION OF NEW AND MATERIAL EVIDENCE, A RECONSIDERATION OF THE FORMER COMPTROLLER GENERAL'S DECISION OF MAY 2, 1936, AS TO THE PARTICULAR MATTER THERE IN QUESTION IS NOT AUTHORIZED. SEE UNITED STATES V. BANK OF METROPOLIS, 15 PETERS, 377, 401; COTTON V. UNITED STATES, 29 CT. CLS. 207, 225; 1 COMP. GEN. 548; 2 ID. 5; 4 ID. 636; 14 ID. 734; AND A-66863, JULY 21, 1936. IT MAY BE STATED FOR YOUR INFORMATION, HOWEVER, RESPECTING GENERAL QUESTION RAISED BY YOUR SUBMISSION, THAT THE LONG ESTABLISHED RULE THAT PROPERTY OF THE UNITED STATES MAY NOT, IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY THEREFOR, BE EXCHANGED IN PARTIAL PAYMENT FOR OTHER PROPERTY UNLESS THERE EXISTS AUTHORITY TO DISPOSE OF THE PROPERTY PROPOSED TO BE EXCHANGED AND THE VALUE THEREOF BE COVERED INTO THE TREASURY AS A MISCELLANEOUS RECEIPT, IS IN CONFORMITY WITH THE PROVISIONS OF SECTION 3679, REVISED STATUTES (34 STAT. 48), THAT NO DEPARTMENT OF THE GOVERNMENT SHALL EXPEND IN ANY ONE FISCAL YEAR ANY SUM IN EXCESS OF APPROPRIATIONS MADE BY CONGRESS FOR THAT FISCAL YEAR; OF SECTION 3732, REVISED STATUTES, THAT NO CONTRACT OR PURCHASE ON BEHALF OF THE UNITED STATES SHALL BE MADE UNLESS THE SAME IS AUTHORIZED BY LAW OR IS UNDER AN APPROPRIATION ADEQUATE TO ITS FULFILLMENT; OF SECTION 3617, REVISED STATUTES, THAT THE GROSS AMOUNT OF ALL MONEYS RECEIVED FROM WHATEVER SOURCE FOR THE USE OF THE UNITED STATES SHALL BE PAID INTO THE TREASURY WITHOUT ANY ABATEMENT OR REDUCTION "OF ANY DESCRIPTION WHATEVER," AND OF SECTION 3618, REVISED STATUTES, THAT ALL PROCEEDS OF SALES OF OLD MATERIAL, CONDEMNED STORES, SUPPLIES, OR OTHER PUBLIC PROPERTY OF ANY KIND, WITH CERTAIN STATED EXCEPTIONS,"SHALL BE DEPOSITED AND COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, ON ACCOUNT OF "PROCEEDS OF GOVERNMENT PROPERTY," AND SHALL NOT BE WITHDRAWN OR APPLIED EXCEPT IN CONSEQUENCE OF A SUBSEQUENT APPROPRIATION MADE BY LAW.'

THE EXCHANGE OF OLD PROPERTY IN PARTIAL PAYMENT FOR NEW PROPERTY IS IN EFFECT THE SALE OF THE OLD PROPERTY AND THE APPLICATION OF ITS SALE PRICE TO THE PURCHASE PRICE OF THE NEW PROPERTY AND AS IT IS OBVIOUS THAT SUCH PROCEDURE DIRECTLY AUGMENTS THE APPROPRIATIONS OTHERWISE MADE AVAILABLE BY THE CONGRESS FOR THE PURPOSES OF THE SPENDING AGENCY AND THUS CLEARLY CONTRAVENES THE STATUTORY PROVISIONS CITED, SUCH PROCEDURE MAY NOT BE VIEWED AS LAWFUL EXCEPT WHERE IT IS EXPRESSLY AUTHORIZED BY STATUTE. TO EXTENDING SUCH AUTHORITY UNDER DEPARTMENT OF AGRICULTURE APPROPRIATIONS TO EXPENDITURES UNDER EMERGENCY CONSERVATION WORK APPROPRIATIONS THERE WOULD APPEAR FOR APPLICATION THE PRINCIPLES OF DECISION TO YOU OF AUGUST 6, 1936, A-71966, HOLDING THAT THE PROVISIONS OF THE ACT OF JANUARY 31, 1931, 46 STAT. 1052, AUTHORIZING THE PAYMENT OF CERTAIN DAMAGE CLAIMS ARISING IN THE FOREST SERVICE FROM THE APPLICABLE APPROPRIATIONS FOR THE FOREST SERVICE FURNISH NO LEGAL BASIS TO PAY SIMILAR CLAIMS UNDER APPROPRIATIONS FOR EMERGENCY CONSERVATION WORK MERELY BECAUSE SUCH APPROPRIATIONS WERE BEING EXPENDED ON EMERGENCY CONSERVATION PROJECTS UNDER THE DIRECTION AND CONTROL OF THE FOREST SERVICE.