B-139917, JUL. 6, 1959

B-139917, JUL. 6, 1959

TO THE ATTORNEY GENERAL:

BY LETTER OF MAY 28, 1959, GCD:RM 77-44-181, THE ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, REQUESTED OUR COMMENTS AS TO WHETHER CONSTRUCTION OF A PUBLIC WORK UTILIZING PLANS DISSIMILAR TO THOSE ORIGINALLY PREPARED WITH FUNDS ADVANCED UNDER TITLE V OF THE WAR MOBILIZATION AND RECONVERSION ACT OF 1944, 50 U.S.C. 1671, 1946 ED., SHOULD BE CONSIDERED WITHIN THE AREA OF DE MINIMIS MENTIONED IN UNITED STATES V. CITY OF WENDELL, IDAHO, 237 F.2D 51.

THE RECORD SHOWS THAT THE TOWN OF FROID, MONTANA, WAS ADVANCED $5,231 FOR THE PREPARATION OF PLANS FOR CONSTRUCTION OF A PUBLIC WORK DESCRIBED AS "WATER SUPPLY, STORAGE AND DISTRIBUTION.' IT APPEARS THAT THE TOWN CONSTRUCTED SUCH A PUBLIC WORK BUT THAT THE ORIGINAL PLANS FOR WHICH THE ADVANCE WAS RECEIVED WERE NOT UTILIZED, CONSTRUCTION HAVING BEEN ACCOMPLISHED UNDER A SECOND SET OF PLANS SUBSEQUENTLY PURCHASED. THE ADMINISTRATIVE REPORT OF COMPARISON MADE BETWEEN THE ORIGINAL PLANS AND THE PLANS USED CONCLUDES THAT "THEY DIFFER CONSIDERABLY IN THE DESIGN, THE LOCATION OF THE MAIN SUPPLY LINE FROM THE WELL TO THE POINT OF INTERSECTION WHERE THE TOWN DISTRIBUTES WATER, (AND) THE SIZE OF LINES, VALVES, FITTINGS, AND FIRE HYDRANTS.' IT IS OBVIOUS, HOWEVER, FROM REVIEW OF THE REPORT OF COMPARISON, THAT THE PROJECT CONSTRUCTED, WHILE VARYING IN DESIGN AND LOCATION OF COMPONENT PARTS FROM THE ORIGINAL PLANS, IS ESSENTIALLY THE "WATER SUPPLY, STORAGE AND DISTRIBUTION" SYSTEM CONTEMPLATED BY THE TOWN OF FROID WHEN THE ADVANCE WAS REQUESTED. THE REPORT SPEAKS ONLY OF THE WATER SUPPLY AND DISTRIBUTION SYSTEM FOR THE TOWN OF FROID, MONTANA.

NOWHERE IS THERE INDICATION THAT MORE THAN ONE SYSTEM IS INVOLVED. SECTION 501 (C) OF THE ACT, 50 U.S.C. 1671 (C), 1946 ED., PROVIDES THAT "ADVANCES UNDER THIS SECTION TO ANY PUBLIC AGENCY SHALL BE REPAID BY SUCH AGENCY IF AND WHEN THE CONSTRUCTION OF PUBLIC WORKS SO PLANNED IS UNDERTAKEN.'

THE WENDELL CASE INVOLVED THE QUESTION OF WHETHER A PAVING PROJECT ACTUALLY ACCOMPLISHED WAS ESSENTIALLY THE SAME AS THE PROJECT FOR WHICH AN ADVANCE WAS REQUESTED. SINCE THERE ARE USUALLY NUMEROUS POTENTIAL PAVING PROJECTS IN A CITY, THE SPECIFIC AREAS COVERED OR THE SPECIFIC STREET BLOCKS INCLUDED IN EACH PROJECT WERE THE FACTORS WHICH WOULD CONCLUSIVELY DETERMINE WHETHER THE COMPLETED PROJECT WAS THE SAME AS ORIGINALLY PLANNED. IT WAS IN THIS CONTEXT THAT THE COURT STATED THAT A PAVING PROJECT ON THE WEST SIDE OF TOWN WOULD NOT BE THE SAME AS A PAVING PROJECT ON THE EAST SIDE OF TOWN; OR IF THERE WERE A DE MINIMIS OF OVERLAPPING OF THE AREAS THE PROJECTS WOULD NOT BE THE SAME. IN OUR LETTER TO YOU DATED MAY 1, 1958, B-134457 (YOUR REFERENCE GCD:RM 77 59-142), WE DISCUSSED IN CONSIDERABLE DETAIL OUR VIEWS ON THE APPLICATION OF THE WENDELL CASE AND CONCLUDED THAT WHERE AN ADVANCE FOR PLANNING WATER FACILITIES OBVIOUSLY CONTEMPLATED THE CONSTRUCTION OF ONLY ONE SUCH FACILITY TO SERVE THE ENTIRE CITY, THE LOCATION OF THE PROJECT WOULD NOT BE CONTROLLING AS TO WHETHER CONSTRUCTION THEREOF WAS PURSUANT TO THE GENERAL OVERALL PLAN FOR WHICH THE ADVANCE HAD BEEN MADE.

SUBSEQUENT TO OUR LETTER, AND IN ACCORD THEREWITH, IT WAS HELD IN UNITED STATES V. CITY OF WILLIS, TEXAS, 164 F.SUPP. 324, THAT EVEN THOUGH CONSTRUCTION PLANS FOR WHICH MONEY ADVANCED WAS USED WERE NOT CONSIDERED FEASIBLE BY THE CITY AND WERE NOT USED AND PLANS PREPARED BY OTHER ENGINEERS WERE EVENTUALLY USED IN CONSTRUCTION OF A SANITARY SEWER SYSTEM AND DISPOSAL PLANT, SUMS ADVANCED BY FEDERAL WORKS ADMINISTRATOR WERE REQUIRED TO BE REPAID. THE CITY OF WILLIS (AS DID THE TOWN OF FROID) DENIED THAT ANY CONSTRUCTION WAS EVER UNDERTAKEN OR STARTED OR THAT ANY CONTRACT WAS EVER LET UNDER THE ORIGINAL PLANS, FOR WHICH THE MONEY WAS ADVANCED, AND THAT IT THEREFORE WAS NOT LIABLE FOR THE MONEY ADVANCED BY THE UNITED STATES. RELYING ON THE WENDELL CASE AND THE CASE OF UNITED STATES V. BOARD OF EDUCATION OF CITY OF BISMARCK, 126 F.SUPP. 338, THE COURT HELD THAT REPAYMENT OF THE ADVANCE MATURED WHEN THE CITY UNDERTOOK CONSTRUCTION OF ITS SANITARY SEWER SYSTEM AND DISPOSAL PLANT. THE COURT QUOTED THE CONCLUSION IN THE BISMARCK CASE THAT THE PHRASE "PUBLIC WORK SO PLANNED," AS USED IN THE ACT, RELATES TO THE GENERAL PLAN CONTEMPLATED BY THE APPLICANT WHEN REQUESTING AN ADVANCE OF FUNDS FROM THE GOVERNMENT.

THE SITUATION IN THE WILLIS CASE IS COMPARABLE TO THAT INVOLVED HERE AND THE HOLDING THEREIN LEAVES LITTLE ROOM FOR DOUBT THAT THE INSTANT CASE DOES NOT FALL WITHIN THE AREA OF DE MINIMIS MENTIONED IN THE WENDELL CASE.