B-128706, AUG. 14, 1956

B-128706: Aug 14, 1956

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DEPARTMENT OF AGRICULTURE: REFERENCE IS MADE TO YOUR LETTER OF JULY 5. THE ITEMS TO BE EXCHANGED OR SOLD AND THE ITEMS TO BE ACQUIRED MAY BE CONSIDERED "SIMILAR" ONLY WHEN BOTH ARE "PERSONAL PROPERTY.'. THE TELEPHONE LINE IN QUESTION IS STATED TO HAVE CONSISTED OF SIX SECTIONS KNOWN AS THE DARBY-SULA-WEST FORK LINE IN THE BITTERROOT NATIONAL FOREST. ITS TOTAL LENGTH IS APPROXIMATELY 41.7 MILES. REMOVAL OF THE LINE WAS OPTIONAL WITH THE PURCHASER. HIS RIGHT TO USE PRIVATELY-OWNED LAND IS DEPENDENT ON NEGOTIATIONS WITH THE LAND OWNER. THE LINE WAS SOLD FOR $6. 920 AND THE PROCEEDS DEPOSITED INTO A TREASURY ACCOUNT FROM WHICH THE ACCOMPANYING VOUCHER IS PROPOSED TO BE PAID. IN WHICH FUNDS ADMINISTRATIVELY REPORTED TO HAVE RESULTED FROM THE SALE OF PERSONAL PROPERTY WERE AUTHORIZED TO BE USED FOR THE PURCHASE OF RADIO EQUIPMENT DESIGNED TO ACCOMPLISH THE SAME PURPOSE AS THAT FOR WHICH THE ORIGINAL PERSONAL PROPERTY WAS USED.

B-128706, AUG. 14, 1956

TO MR. WILLIAM W. CRAWFORD, AUTHORIZED CERTIFYING OFFICER, FOREST SERVICE, DEPARTMENT OF AGRICULTURE:

REFERENCE IS MADE TO YOUR LETTER OF JULY 5, 1956 (A DISBURSEMENT VOUCHERS G.A.O.) TRANSMITTING A VOUCHER IN THE AMOUNT OF $340 IN FAVOR OF MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC., FOR RADIO EQUIPMENT AND REQUESTING A DECISION WHETHER THE VOUCHER MAY BE CERTIFIED FOR PAYMENT.

THE VOUCHER AND RELATED PAPERS PROPOSE TO PAY THE AMOUNT FROM FUNDS DERIVED FROM THE SALE OF A TELEPHONE LINE PURSUANT TO AUTHORITY CONTINUED IN SECTION 201 (C) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 384, 40 U.S.C. 481 (C). THE REFERRED TO STATUTE PROVIDES AS FOLLOWS:

"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.'

UNDER GENERAL SERVICES ADMINISTRATION REGULATION 1-II-213.01, THE ITEMS TO BE EXCHANGED OR SOLD AND THE ITEMS TO BE ACQUIRED MAY BE CONSIDERED "SIMILAR" ONLY WHEN BOTH ARE "PERSONAL PROPERTY.'

THE TELEPHONE LINE IN QUESTION IS STATED TO HAVE CONSISTED OF SIX SECTIONS KNOWN AS THE DARBY-SULA-WEST FORK LINE IN THE BITTERROOT NATIONAL FOREST, MONTANA. ITS TOTAL LENGTH IS APPROXIMATELY 41.7 MILES. REMOVAL OF THE LINE WAS OPTIONAL WITH THE PURCHASER, WHO ELECTED TO USE THE LINE IN PLACE. FOR ON-SITE USE, THE PURCHASER OBTAINED NO RIGHT-OF-WAY IN THE LAND FROM THE GOVERNMENT BUT USES THE GOVERNMENT-OWNED LAND UNDER A PERMIT FROM THE FOREST SERVICE. HIS RIGHT TO USE PRIVATELY-OWNED LAND IS DEPENDENT ON NEGOTIATIONS WITH THE LAND OWNER. THE LINE WAS SOLD FOR $6,920 AND THE PROCEEDS DEPOSITED INTO A TREASURY ACCOUNT FROM WHICH THE ACCOMPANYING VOUCHER IS PROPOSED TO BE PAID.

YOU REFER TO OUR DECISION OF JUNE 3, 1955, B-123623, IN WHICH FUNDS ADMINISTRATIVELY REPORTED TO HAVE RESULTED FROM THE SALE OF PERSONAL PROPERTY WERE AUTHORIZED TO BE USED FOR THE PURCHASE OF RADIO EQUIPMENT DESIGNED TO ACCOMPLISH THE SAME PURPOSE AS THAT FOR WHICH THE ORIGINAL PERSONAL PROPERTY WAS USED, THE ORIGINAL AND REPLACEMENT EQUIPMENT BEING REGARDED AS "SIMILAR" WITHIN THE MEANING OF SECTION 201 (C) AND CURRENT GENERAL SERVICES ADMINISTRATION REGULATION. YOU STATE THAT WHILE NO QUESTION EXISTS BUT THAT THE TELEPHONE LINE AND RADIO EQUIPMENT IN THE INSTANT CASE ARE SIMILAR, THERE IS A DOUBT AS TO WHETHER THE TELEPHONE LINE IS "PERSONAL" PROPERTY WITHIN THE REGULATIONS.

"PERSONAL PROPERTY" IS DEFINED IN GENERAL SERVICES ADMINISTRATION REGULATION I-I-102.01 A.25. AS FOLLOWS:

"PROPERTY OF ANY KIND OR ANY INTEREST THEREIN, EXCEPT REAL PROPERTY, RECORDS OF THE FEDERAL GOVERNMENT, AND NAVAL VESSELS OF THE FOLLOWING CATEGORIES: BATTLESHIPS, CRUISER, AIRCRAFT CARRIERS, DESTROYERS, AND SUBMARINES.'

"REAL PROPERTY" IS DEFINED IN GENERAL SERVICES ADMINISTRATION REGULATION 1-I-102.01 A.25. AS FOLLOWS:

"/A) ANY INTEREST IN LAND (EXCEPT THE PUBLIC DOMAIN AND LANDS RESERVED OR DEDICATED FOR NATIONAL FOREST OR NATIONAL PARK PURPOSES, INCLUDING LANDS WITHDRAWN OR RESERVED FROM THE PUBLIC DOMAIN WHICH THE ADMINISTRATOR, WITH THE CONCURRENCE OF THE SECRETARY OF THE INTERIOR, DETERMINES ARE SUITABLE FOR RETURN TO THE PUBLIC DOMAIN BECAUSE SUCH LANDS ARE NOT SUBSTANTIALLY CHANGED IN CHARACTER BY IMPROVEMENTS) OWNED BY THE UNITED STATES, INCLUDING ANY WHOLLY OWNED GOVERNMENT CORPORATION, AND ANY FIXTURES, APPURTENANCES, AND IMPROVEMENTS OF ANY KIND LOCATED THEREON; AND

"/B) ANY FIXTURES, STRUCTURES, AND OTHER IMPROVEMENTS OWNED BY THE UNITED STATES (INCLUDING SUCH AS MAY BE LOCATED ON THE PUBLIC DOMAIN OR ON LANDS RESERVED OR DEDICATED FOR NATIONAL FOREST OR NATIONAL PARK PURPOSES, OR LOCATED ON LAND THAT IS NOT OWNED BY THE UNITED STATES), WHICH ARE TO BE DISPOSED OF FOR OFF-SITE USE, EXCLUDING,HOWEVER, STANDING TIMBER AND CROPS OFFERED FOR DISPOSAL SEPARATELY FROM THE LAND ON WHICH LOCATED.'

REGULATIONS ARE TO BE GIVEN A REASONABLE CONSTRUCTION AND A LITERAL APPLICATION WHICH WOULD LEAD TO ABSURD CONSEQUENCES SHOULD BE AVOIDED WHENEVER A SENSIBLE APPLICATION CAN BE GIVEN CONSISTENT WITH THE ADMINISTRATIVE AND LEGISLATIVE PURPOSE. WHILE A LITERAL INTERPRETATION OF THE FOREGOING DEFINITIONS WOULD APPEAR TO INDICATE THAT TELEPHONE LINES LOCATED ON NATIONAL FOREST LANDS WHICH ARE SOLD UNDER TERMS, SUCH AS HERE, WHERE ON-SITE USE IS SANCTIONED UNDER A REVOKABLE PERMIT ARE TO BE CONSIDERED "PERSONAL PROPERTY" SUCH INTERPRETATION APPEARS UNREASONABLE AND ABSURD IN THE LIGHT OF THE LANGUAGE OF THE REGULATIONS WHICH REQUIRES FIXTURES, STRUCTURES AND IMPROVEMENTS (OTHER THAN TIMBER AND CROPS) TO BE SOLD FOR OFF-SITE USE TO BE CONSIDERED "REAL PROPERTY.' IF SUCH IMPROVEMENTS TO BE SOLD FOR OFF-SITE USE ARE REAL PROPERTY UNDER THE REGULATIONS, OBVIOUSLY SUCH IMPROVEMENTS SOLD FOR USE IN PLACE OR AT THE PURCHASER'S ELECTION EITHER OFF-SITE OR IN PLACE WOULD BE NO LESS REAL PROPERTY. FURTHERMORE, IT WOULD APPEAR THAT THE GENERAL SERVICES ADMINISTRATION CONSIDERS ALL TELEPHONE LINES WHETHER SOLD FOR "ON-SITE" OR ,OFF-SITE" USE TO BE "REAL PROPERTY" WITHIN THE PURVIEW OF THE ACT. SEE IN THIS CONNECTION GENERAL SERVICES ADMINISTRATION REGULATION 2-V-201.03 CONCERNING THE DISPOSAL OF SURPLUS REAL PROPERTY.

THEREFORE, WE CONCLUDE THAT THE TELEPHONE LINE IN QUESTION IS NOT "PERSONAL PROPERTY" SO AS TO COME WITHIN THE PURVIEW OF SECTION 201 (C) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT, AND THUS THE PROCEEDS OF SALE ARE NOT AVAILABLE THEREUNDER FOR PURCHASE OF THE RADIO EQUIPMENT BUT ARE REQUIRED TO BE OTHERWISE DISPOSED OF UNDER SECTION 204 OF THE ACT AS AMENDED.

THE VOUCHER WHICH IS RETURNED HEREWITH ACCORDINGLY MAY NOT BE CERTIFIED FOR PAYMENT FROM THE INVOLVED SPECIAL DEPOSIT ACCOUNT. THERE IS OF COURSE NO OBJECTION, IF OTHERWISE PROPER, TO ITS PAYMENT FROM OTHER FUNDS AVAILABLE FOR EXPENSES OF THE FOREST SERVICE.