B-137208, JAN. 25, 1960

B-137208, JAN. 25, 1960

TO MR. CLEO F. LAYTON, AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF THE INTERIOR:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 14, 1959, REQUESTING A DECISION AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF THE DEPARTMENT OF THE NAVY FOR $39,159.55, REPRESENTING THE COST INCURRED IN REPAIRING DAMAGES TO LCMS USED IN THE PRIBILOF ISLANDS, ALASKA, SUPPLY OPERATION DURING AUGUST AND SEPTEMBER 1957.

YOU STATE THAT THE NAVY ENTERED INTO AN AGREEMENT WITH THE BUREAU OF COMMERCIAL FISHERIES, DEPARTMENT OF THE INTERIOR, UNDER AUTHORITY OF 31 U.S.C. 686, WHEREBY THE NAVY AGREED TO DELIVER CERTAIN CARGO TO THE PRIBILOF ISLANDS, ALASKA, AT A FIXED PER DIEM RATE OF $606. ALSO, THAT PAYMENT WAS MADE TO THE NAVY FOR THE FULL AMOUNT OF PER DIEM CHARGES CLAIMED. YOU POINT OUT THAT THE DEPARTMENT HAS NO OBJECTION TO PAYING THE ADDITIONAL CHARGES CLAIMED BY NAVY, THAT SUCH CHARGES APPEAR JUST AND REASONABLE, AND THAT FUNDS ARE AVAILABLE FOR THE PAYMENT THEREOF.

THE DOUBT AS TO THE PROPRIETY OF PAYING THE AMOUNT COVERED BY THE SUBJECT VOUCHER IS SAID TO ARISE BECAUSE OF OUR DECISION TO MR. W. E. CORBIN, AUTHORIZED CERTIFYING OFFICER, FISH AND WILDLIFE SERVICE, DATED DECEMBER 16, 1958, B-137208. THAT DECISION CONSIDERED A CLAIM OF THE NAVY IN THE SUM OF $20,303, AGAINST THE BUREAU OF COMMERCIAL FISHERIES, REPRESENTING THE COST OF REPAIRING DAMAGES TO THE U.S.S. MERRICK (AKA 97) AND LCMS USED IN DELIVERING THE SUPPLIES TO THE PRIBILOF ISLANDS. PAYMENT WAS DENIED ON THE BASIS THAT THE BUREAU OF COMMERCIAL FISHERIES PAID THE NAVY THE AMOUNT AGREED UPON FOR CARRYING OUT THE SUPPLY OPERATION. ALSO, THERE WAS APPLIED THE GENERAL RULE STATED IN OUR DECISION 25 COMP. GEN. 49, 54, WHEREIN WE HELD THAT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, THE FUNDS OF GOVERNMENT DEPARTMENTS AND AGENCIES ARE NOT AVAILABLE FOR PAYMENT OF CLAIMS FOR DAMAGES TO THE PROPERTY OF OTHER GOVERNMENT DEPARTMENTS AND AGENCIES.

IT APPEARS FROM A LETTER DATED SEPTEMBER 29, 1959, FROM THE DEPUTY AND ASSISTANT CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS TO THE COMMISSIONER, FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR, AND FROM INFORMAL DISCUSSIONS HAD WITH REPRESENTATIVES OF THE NAVY THAT THE CLAIM OF $20,303 COVERED THE COST OF REPAIRING DAMAGES TO THE U.S.S. MERRICK ONLY, AND DID NOT INCLUDE THE COST OF REPAIR OF DAMAGES TO THE LANDING CRAFT. SUPPORT OF THE NAVY'S CLAIM FOR REIMBURSEMENT OF THE COST OF REPAIRS OF THE DAMAGES TO THE LANDING CRAFT IN THE SUM OF $39,159.55, THE LETTER STATES IN PERTINENT PART:

"* * * SINCE 1957 THESE LANDING CRAFT HAVE BEEN USED ONLY FOR THE PRIBILOF ISLANDS RESUPPLY OPERATIONS; THE NAVY HAS NOT EMPLOYED THE CRAFT FOR ITS OWN PURPOSES. THE LANDING CRAFT WERE REPAIRED TO MAKE THEM SUITABLE FOR USE IN THE 1958 PRIBILOF RESUPPLY OPERATION WHICH WAS UNDERTAKEN IN RESPONSE TO A SIMILAR REQUEST FROM YOUR AGENCY. BUT FOR YOUR NEED FOR THEM, THE NAVY WOULD NOT HAVE REPAIRED THE LANDING CRAFT AT THIS TIME, AS THERE WAS NO SCHEDULED NAVY USE FOR THESE CRAFT.

"IT IS CONSIDERED THAT THE BILL FOR REPAIRS TO THE LANDING CRAFT IS NOT LIKE THE BILL FOR REPAIR OF THE USS MERRICK. THE REPAIRS TO THE MERRICK WERE MADE TO MAKE THE VESSEL SUITABLE FOR THE NAVY'S PURPOSES, BUT REPAIRS TO THE LANDING CRAFT WERE MADE SOLELY TO MAKE THE CRAFT SUITABLE FOR THE 1958 RESUPPLY OPERATION PERFORMED FOR YOUR AGENCY. THE BENEFIT OF THESE REPAIRS ACCRUED TO YOUR AGENCY. FOR THESE REASONS IT IS CONSIDERED THAT PAYMENT OF THE BILL OF $39,159.55 BY YOUR AGENCY IS APPROPRIATE.'

AS STATED IN OUR DECISION OF DECEMBER 16, 1958, B-137208, THE UNDERLYING PRINCIPLE OF THE DECISION 25 COMP. GEN. 49, AND DECISION THEREIN CITED, IS THAT THE OWNERSHIP OF PUBLIC PROPERTY IS IN THE GOVERNMENT AND NOT IN A DEPARTMENT OR BRANCH THEREOF HAVING POSSESSION OF THE PROPERTY, AND, THEREFORE, THAT EXPENSES INCURRED IN THE REPAIR OF SUCH PROPERTY ARE CHARGEABLE TO THE APPROPRIATIONS OF THE ESTABLISHMENT FOR THE ACTIVITIES OF WHICH THE REPAIRS ARE NECESSARY. CF. 30 COMP. GEN. 295, 31 ID. 329; 37 ID. 308. HERE THE REPAIRS TO THE LANDING CRAFT WERE NECESSARY FOR THE PURPOSES OF THE BUREAU OF COMMERCIAL FISHERIES AND NOT FOR THE PURPOSE OF RESTORING THE EQUIPMENT FOR ANY NAVY ACTIVITIES. AND IT IS IMMATERIAL THAT THE REPAIRS WERE MADE AFTER THE 1957 SUPPLY OPERATION HAD BEEN COMPLETED, SINCE IT CLEARLY APPEARS THEY WERE MADE FOR THE PURPOSE OF PLACING THE LANDING CRAFT IN CONDITION FOR USE OF THE BUREAU OF COMMERCIAL FISHERIES IN CONNECTION WITH THE 1958 SUPPLY OPERATION AND NOT FOR ANY REQUIRED USE BY THE NAVY.

ACCORDINGLY, YOU ARE ADVISED THAT SINCE THE EXPENSE OF REPAIR WORK TO THE LANDING CRAFT WOULD NOT HAVE BEEN INCURRED BY THE NAVY HAD NOT THE BUREAU OF COMMERCIAL FISHERIES REQUESTED THE NAVY TO CONDUCT THE 1958 SUPPLY OPERATION, SUCH WORK REASONABLY MAY BE CONSIDERED AS HAVING BEEN ORDERED BY THE BUREAU OF COMMERCIAL FISHERIES AND, THEREFORE, THE COST THEREOF MAY BE REIMBURSED TO THE NAVY FROM THE FUNDS AVAILABLE TO THE BUREAU AS AN EXPENSE OF THE 1958 PRIBILOF ISLANDS SUPPLY OPERATION SOLELY FOR THE BENEFIT OF THE BUREAU OF COMMERCIAL FISHERIES. SEE 5 COMP. GEN. 162.

THE VOUCHER TRANSMITTED WITH YOUR LETTER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.