B-123623, JUN. 3, 1955

B-123623, JUN. 3, 1955

TO MR. M. R. WEISSENBORN, AUTHORIZED CERTIFYING OFFICER, FOREST SERVICE, DEPARTMENT OF AGRICULTURE:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 8, 1955 (A DISBURSEMENT VOUCHERS), TRANSMITTING AN INVOICE IN THE AMOUNT OF $198.24 IN FAVOR OF MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC., 4501 W. AUGUSTA BOULEVARD, CHICAGO 51, ILLINOIS, FOR CERTAIN RADIO EQUIPMENT (REMOTE CONTROL CONSOLE) AND REQUESTING A DECISION WHETHER THE VOUCHER MAY BE CERTIFIED FOR PAYMENT.

IT APPEARS THAT THE EQUIPMENT WAS PURCHASED TO REPLACE A TELEPHONE LINE INSTALLED IN 1930 AFTER IT WAS FOUND THAT INSTALLATION OF DIAL SERVICE WOULD REQUIRE COMPLETE RENOVATION OF THE EXISTING LINE AND THAT TESTS SHOWED THAT THE RADIO EQUIPMENT WOULD SERVE THE ADMINISTRATIVE NEEDS ADEQUATELY AT REDUCED IMMEDIATE COSTS AS WELL AS GREATLY REDUCED FUTURE MAINTENANCE COSTS.

PAYMENT OF THE AMOUNT CLAIMED ON THE INVOICE IS PROPOSED TO BE MADE UNDER AUTHORITY CONTAINED IN SECTION 201 (C) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 384, 40 U.S.C. 481 (C), WHICH PROVIDES:

"/C) IN ACQUIRING PERSONAL PROPERTY, ANY EXECUTIVE AGENCY, UNDER REGULATIONS TO BE PRESCRIBED BY THE ADMINISTRATOR, MAY EXCHANGE OR SELL SIMILAR ITEMS AND MAY APPLY THE EXCHANGE ALLOWANCE OR PROCEEDS OF SALE IN SUCH CASES IN WHOLE OR IN PART PAYMENT FOR THE PROPERTY ACQUIRED: PROVIDED, THAT ANY TRANSACTION CARRIED OUT UNDER THE AUTHORITY OF THIS SUBSECTION SHALL BE EVIDENCED IN WRITING.'

IT IS STATED THAT DOUBT AS TO THE PROPRIETY OF THE PROPOSED PAYMENT ARISES BECAUSE THE FUNDS PROPOSED TO BE CHARGED REPRESENT PROCEEDS FROM THE SALE OF THE TELEPHONE LINE AND THAT IT IS NOT ENTIRELY FREE FROM DOUBT WHETHER A RADIO AND THE TELEPHONE LINE ARE "SIMILAR" ITEMS WITHIN THE MEANING OF THE ABOVE STATUTE AND THE PERTINENT REGULATIONS. PERSONAL PROPERTY REGULATION NO. 6, REVISED, DATED SEPTEMBER 7, 1951, ISSUED PURSUANT TO THE ABOVE STATUTE AUTHORIZES THE USE OF THE PROCEEDS OF SALE OF PERSONAL PROPERTY TO ACQUIRE REPLACEMENT PROPERTY WHEN, AMONG OTHER REQUIREMENTS,"THE ITEMS SOLD OR EXCHANGED ARE SIMILAR TO THE ITEMS ACQUIRED.'

SECTION 4 (B) OF THE REGULATION, PROVIDES---

"ITEMS SHALL BE DEEMED "SIMILAR" FOR THE PURPOSE OF THIS REGULATION WHEN:

"/1) THEY ARE SUBSTANTIALLY ALIKE IN ALL MATERIAL ASPECTS AND CHARACTERISTICS, EXCLUDING, HOWEVER, CONDITION, YEAR, MODEL, SIZE OR CAPACITY, AND MANUFACTURER; OR

"/2) THE AGENCY HEAD, OR HIS REPRESENTATIVE DULY AUTHORIZED FOR THE PURPOSE, FINDS, IN WRITING, THAT THEY RESEMBLE EACH OTHER IN MOST MATERIAL ASPECTS AND CHARACTERISTICS AND ARE ADAPTABLE TO THE SAME OR COMPARABLE USES, WHICH FINDING SHALL SUPPORT EACH PURCHASE DOCUMENT COVERING PROPERTY ACQUIRED PURSUANT THERETO.'

THE ABOVE REGULATION WAS SUPERSEDED BY G.S.A. REGULATION 1-II 213.01, DATED APRIL 5, 1955, EFFECTIVE AS OF MAY 6, 1955. SECTION 213.04B OF THE CURRENT REGULATION PROVIDES IN PERTINENT PART AS FOLLOWS:

"THE ITEM OF PERSONAL PROPERTY TO BE EXCHANGED OR SOLD AND THE ITEM TO BE ACQUIRED SHALL BE SIMILAR FOR THE PURPOSE OF THIS SECTION WHEN:

"2. IN THE CASE OF PERSONAL PROPERTY NOT FALLING WITHIN THE CATEGORIES OF SUBPARAGRAPH 1, ABOVE, THE ITEM TO BE ACQUIRED IS DESIGNED AND CONSTRUCTED FOR THE SAME SPECIFIC PURPOSE AS THE ITEM TO BE REPLACED; * * *"

UNDER THE ORIGINAL REGULATION, THERE MIGHT BE SOME DOUBT AS TO WHETHER THE INVOLVED ITEMS PROPERLY MAY BE REGARDED AS COMING WITHIN SECTION 4 (B) (2) OF SUCH REGULATIONS IN VIEW OF THEIR LACK OF RESEMBLANCE "IN MOST MATERIAL ASPECTS AND CHARACTERISTICS.' SINCE, HOWEVER, THE SUPPORTING PAPERS INDICATE THAT THE RADIO EQUIPMENT TO BE ACQUIRED IS DESIGNED AND CONSTRUCTED FOR ACCOMPLISHMENT OF THE SAME PURPOSE FOR WHICH THE TELEPHONE LINE WAS USED, THE RADIO EQUIPMENT MAY BE REGARDED AS "SIMILAR" WITHIN THE MEANING OF THE ABOVE STATUTE AND CURRENT REGULATIONS.

ACCORDINGLY, THE INVOICE, WHICH IS ATTACHED, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE PROPER.