B-117798, DECEMBER 16, 1953, 33 COMP. GEN. 272

B-117798, DECEMBER 16, 1953, 33 COMP. GEN. 272

PAYMENTS - ADVANCE - CONTRACTS IN FOREIGN COUNTRIES THE ADVANCE PAYMENT PROHIBITION OF SECTION 3648 OF THE REVISED STATUTES PRECLUDES ADVANCE PAYMENT FOR SERVICES TO BE RENDERED UNDER A CONTRACT FOR THE MAINTENANCE OF A THOROUGHFARE BETWEEN TWO CAMPS IN A FOREIGN COUNTRY IN THE ABSENCE OF A LAW OR MINISTERIAL REGULATION OF THAT COUNTRY REQUIRING SUCH PAYMENT.

COMPTROLLER GENERAL WARREN TO MAJOR P. M. CALLINAN, DEPARTMENT OF THE ARMY, DECEMBER 16, 1953:

I HAVE YOUR LETTER OF OCTOBER 27, 1953, TRANSMITTING FOR ADVANCE DECISION BUREAU VOUCHER DATED OCTOBER 6, 1953, STATED IN FAVOR OF FRANZ HUEMER AND COMPANY, SALZBURG, AUSTRIA, AND PROPOSING PAYMENT TO THE COMPANY IN THE SUM OF $510 FOR ITS "CONTRACTED" PROMISE TO MAINTAIN THE THOROUGHFARE BETWEEN CAMP KLESSHEIM AND CAMP SIEZENHEIM, SALZBURG, FOR THE PERIOD OF FOUR YEARS COMMENCING FROM AUGUST 18, 1953.

THE PROPRIETY OF MAKING PAYMENT ON THE VOUCHER HAS BEEN QUESTIONED BY YOU UPON THE GROUNDS THAT IT WOULD CONSTITUTE A PAYMENT IN ADVANCE OF THE VALUE OF ANY OF THE SERVICES SOUGHT TO BE ENGAGED UNDER THE REPAIR OR MAINTENANCE AGREEMENT REFERRED TO, AND THUS BE IN CONTRAVENTION OF THE PROVISIONS OF SECTION 3648, REVISED STATES, 31 U.S.C. 529. SPECIFICALLY YOU QUESTION WHETHER THE PROPOSED PAYMENT COMES WITHIN ANY OF THE EXEMPTIONS CONTAINED IN SECTION 602, TITLE VI, PUBLIC LAW 179, 83D CONGRESS, 67 STAT. 349, WHICH READS:

SECTION 3648, REVISED STATUTES, SHALL NOT APPLY IN THE CASE OF PAYMENTS MADE FROM APPROPRIATIONS CONTAINED IN THIS ACT, (1) TO PAYMENTS MADE IN COMPLIANCE WITH THE LAWS OF FOREIGN COUNTRIES OR THEIR MINISTERIAL REGULATIONS, (2) TO PAYMENTS FOR RENT IN SUCH COUNTRIES FOR SUCH PERIODS AS MAY BE NECESSARY TO ACCORD WITH LOCAL CUSTOM, OR (3) TO PAYMENTS MADE FOR TUITION.

THERE IS NO LEGAL JUSTIFICATION FOR DISREGARDING THE MANDATORY PROVISIONS OF THE STATUTE PROHIBITING THE ADVANCE OF PUBLIC MONEY "IN ANY CASE WHATEVER," EXCEPT OF COURSE, WHERE SPECIFICALLY AUTHORIZED BY LAW. SEE, IN THIS CONNECTION, 19 COMP. GEN. 758, 760, AND THE AUTHORITIES THERE CITED. HERE, THE AMOUNT CLAIMED OBVIOUSLY DOES NOT REPRESENT RENT OR TUITION AND THE RECORD FAILS TO ESTABLISH THE EXISTENCE OF ANY FOREIGN LAW OR MINISTERIAL REGULATION WHICH MIGHT REQUIRE PAYMENT TO THE CLAIMANT OF ANY AMOUNT IN EXCESS OF THE VALUE OF THE SERVICES ACTUALLY RENDERED OR PERFORMED UNDER THE PURPORTED CONTRACT. HENCE, THE INSTANT CASE CANNOT BE REGARDED AS FALLING WITHIN ANY OF THE EXCEPTED SITUATIONS DESCRIBED IN PUBLIC LAW 179, SUPRA.

IT MUST BE CONCLUDED, THEREFORE, THAT PAYMENT ON THAT INSTANT VOUCHER, RETURNED HEREWITH, IS NOT AUTHORIZED.