B-135524, JUN. 12, 1958

B-135524: Jun 12, 1958

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500 FEET OF DITCH WAS ELIGIBLE FOR COST-SHARING UNDER THE PROGRAM. DETERMINED THAT AN ADDITIONAL 800 FEET OF DITCH WAS ESSENTIAL FOR THE ADEQUATE DRAINAGE OF THE FISK FARM AND THAT 400 FEET MORE WOULD ACCOMPLISH DRAINAGE ON AN ADJOINING FARM. DESIGNS FOR THE DRAINAGE SYSTEM WERE DEVELOPED TO CARRY THE DRAINAGE LOAD FROM THE FULL AREA. ARRANGEMENTS FOR A COOPERATIVE DRAINAGE SYSTEM FELL THROUGH AND THE DESIGNS WERE ADJUSTED TO HANDLE ONLY THE DRAINAGE FOR THE FISK FARM. HIS UNDATED APPLICATION FOR PAYMENT FOR THIS PRACTICE IS FOR $583.20. THE SOIL CONSERVATION SERVICE CONTENDED THAT THE "DRAINAGE DITCH IS NOT COMPLETE TILL IT IS DOWN TO GRADE BACK TO STATION 23 TIMES 00" (2. THE PRACTICE APPEARS TO HAVE BEEN FORMALLY APPROVED BY THE COUNTY COMMITTEE AFTER THE FACT AND ONLY TO THE EXTENT OF ACTUAL PERFORMANCE.

B-135524, JUN. 12, 1958

TO THE SECRETARY OF AGRICULTURE:

BY LETTER OF MARCH 12, 1958, ASSISTANT SECRETARY E. L. PETERSON PRESENTED FOR OUR CONSIDERATION THE QUESTION AS TO WHETHER IT WOULD BE LEGAL IN THE CIRCUMSTANCES INVOLVED TO APPROVE A CLAIM, IF PROPERLY SUBMITTED, FOR WORK PERFORMED BY MR. R. D. FISK OF CHARITON, LUCAS COUNTY, IOWA, UNDER THE 1952 FARM LAND RESTORATION PROGRAM.

THE RECORD SHOWS THAT MR. FISK REQUESTED COST-SHARING ASSISTANCE UNDER THAT PROGRAM TO RESTORE TO USEFULNESS A DRAINAGE DITCH WHICH HAD BEEN DAMAGED BY A FLOOD. THE LUCAS COUNTY AGRICULTURAL STABILIZATION AND CONSERVATION COMMITTEE DETERMINED THAT 1,500 FEET OF DITCH WAS ELIGIBLE FOR COST-SHARING UNDER THE PROGRAM. THE SOIL CONSERVATION SERVICE, WHICH HAD RESPONSIBILITY IN PRACTICES OF THE TYPE HERE INVOLVED FOR DETERMINING NEED AND PRACTICABILITY, FOR SUPERVISING INSTALLATION, AND FOR CHECKING PERFORMANCE, DETERMINED THAT AN ADDITIONAL 800 FEET OF DITCH WAS ESSENTIAL FOR THE ADEQUATE DRAINAGE OF THE FISK FARM AND THAT 400 FEET MORE WOULD ACCOMPLISH DRAINAGE ON AN ADJOINING FARM. DESIGNS FOR THE DRAINAGE SYSTEM WERE DEVELOPED TO CARRY THE DRAINAGE LOAD FROM THE FULL AREA. HOWEVER, DURING CONSTRUCTION OF THE DITCH, ARRANGEMENTS FOR A COOPERATIVE DRAINAGE SYSTEM FELL THROUGH AND THE DESIGNS WERE ADJUSTED TO HANDLE ONLY THE DRAINAGE FOR THE FISK FARM.

MR. FISK COMPLETED THE WORK IN ACCORDANCE WITH THE SPECIFICATIONS FOR THE 1,500 FEET OF DITCH BUT DID NOT DIG THE ADDITIONAL 800 FEET. HIS UNDATED APPLICATION FOR PAYMENT FOR THIS PRACTICE IS FOR $583.20, REPRESENTING THE GOVERNMENT'S SHARE OF THE COST OF REMOVING 4,860CUBIC YARDS OF DIRT. IN A "REPORT OF PERFORMANCE" DATED OCTOBER 30, 1952, THE SOIL CONSERVATION SERVICE CONTENDED THAT THE "DRAINAGE DITCH IS NOT COMPLETE TILL IT IS DOWN TO GRADE BACK TO STATION 23 TIMES 00" (2,300 FEET IN LENGTH) AND THEREFORE DID NOT APPROVE PAYMENT OF THE CLAIM. A NOTICE OF APPROVED PRACTICE DATED DECEMBER 5, 1952, SIGNED BY EARL M. TAYLOR, A MEMBER OF THE AGRICULTURAL STABILIZATION AND CONSERVATION COUNTY COMMITTEE APPROVED THE REMOVAL OF 4,860 CUBIC YARDS OF DIRT FROM THE DITCH AND APPROVED $583.20 AS THE GOVERNMENT'S SHARE OF THE COST. HENCE, THE PRACTICE APPEARS TO HAVE BEEN FORMALLY APPROVED BY THE COUNTY COMMITTEE AFTER THE FACT AND ONLY TO THE EXTENT OF ACTUAL PERFORMANCE. DUE TO FAILURE TO COMPLETE THE DITCH AS REQUIRED BY THE SOIL CONSERVATION SERVICE, NO PAYMENT HAS BEEN MADE TO MR. FISK, ALTHOUGH HE RECENTLY WROTE ADMINISTRATIVE OFFICIALS IN THE FIELD DEMANDING PAYMENT FOR THE WORK ACTUALLY PERFORMED.

THE LETTER OF MARCH 12, 1958, INDICATES THAT THE ADDITIONAL 800 FEET OF DITCH NOT DUG IN 1952 WOULD BE ELIGIBLE FOR COST-SHARING UNDER THE 1958 AGRICULTURAL CONSERVATION PROGRAM IF MR. FISK WOULD NOT AGREE TO EXTEND THE DITCH AS ORIGINALLY DESIGNED, AND THAT SUCH CONSTRUCTION AT THIS TIME WOULD RENDER THE PART OF THE DITCH CONSTRUCTED UNDER THE 1952 PROGRAM ELIGIBLE FOR PAYMENT. YOUR DEPARTMENT DESIRES TO MAKE MR. FISK AN OFFER OF COST-SHARING UNDER THE 1958 PROGRAM TO COMPLETE THE DITCH AND AT THE SAME TIME ASSURE HIM THAT HE WOULD BE PAID FOR THE WORK PREVIOUSLY PERFORMED. SINCE THE APPROPRIATION FOR PERFORMING PRACTICES UNDER THE 1952 PROGRAM WAS AVAILABLE ONLY UNTIL DECEMBER 31, 1954, THE QUESTION ARISES WHETHER, IN THE CIRCUMSTANCES, A PROPERLY SUBMITTED CLAIM FOR THE WORK DONE UNDER THE 1952 PROGRAM COULD LEGALLY BE APPROVED.

SINCE THE COMPLETION OF THE REMAINING 800 FEET OF DITCH AT THIS TIME WOULD COMPLETE THE WORK AS ORIGINALLY PLANNED AND DESIGNED UNDER THE 1952 PROGRAM, IT WOULD APPEAR THAT MR. FISK PROPERLY WOULD BE ENTITLED TO PAYMENT FOR THE COMPLETED PRACTICE AS ORIGINALLY CONTEMPLATED. HOWEVER, THE TIME ELAPSED BETWEEN THE TWO PORTIONS OF THE WORK RAISE A QUESTION AS TO AVAILABILITY OF APPROPRIATIONS SINCE THE CURRENT APPROPRIATION WOULD BE AVAILABLE ONLY FOR THE WORK PERFORMED UNDER THE CURRENT PROGRAM AND THE APPROPRIATION FOR THE 1952 PROGRAM WAS AVAILABLE ONLY UNTIL DECEMBER 31, 1954. HOWEVER, AS STATED ABOVE, ON DECEMBER 5, 1952, THE ASC COUNTY COMMITTEE FORMALLY APPROVED THE WORK ACTUALLY ACCOMPLISHED UNDER THE 1952 PROGRAM AND THE AMOUNT OF THE GOVERNMENT'S SHARE OF THE COST THEREOF. THE CIRCUMSTANCES, AND ASSUMING THAT MR. FISK NOW COMPLETES THE WORK AS ORIGINALLY CONTEMPLATED, THAT APPROVAL MAY BE CONSIDERED AS CREATING A VALID OBLIGATION AGAINST THE APPROPRIATION AVAILABLE FOR THE 1952 PROGRAM AND PAYMENT OF THE CLAIM MAY BE MADE FROM THE SUCCESSOR TO THAT ACCOUNT UPON COMPLETION OF THE WORK. IF REQUIRED TO SATISFY THE OBLIGATION, THE NECESSARY FUNDS TO PAY THE CLAIM MAY BE RESTORED TO THE APPROPRIATE "M" ACCOUNT AS PROVIDED BY 7 GAO 2075.