B-146032, SEPTEMBER 20, 1961, 41 COMP. GEN. 199

B-146032: Sep 20, 1961

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

- VEHICLES - GOVERNMENT - DAMAGES MOTOR POOL VEHICLES - REQUISITIONING AGENCY LIABILITY THE COST OF REPAIRS TO GOVERNMENT VEHICLES DAMAGED WHILE BEING OPERATED IN A MOTOR VEHICLE POOL ARE ELEMENTS OF COST INCIDENT TO THE OPERATION OF THE VEHICLE AS PROVIDED BY SECTION 211 (D) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949. REPAIR COSTS FOR DAMAGED VEHICLES ARE FOR RECOVERY FROM THE USING AGENCY. ARE REGULATIONS WHICH DIRECTLY CONCERN THE OPERATION OF MOTOR VEHICLE POOLS AND ARE THEREFORE WITHIN THE SCOPE OF SECTION 211 (B) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949. THE LIABILITY OF THE REQUISITIONING AGENCY FOR THE COST OF REPAIRS TO A DAMAGED VEHICLE IS DEPENDENT UPON WHETHER OR NOT NEGLIGENCE OF ITS EMPLOYEE IS INVOLVED.

B-146032, SEPTEMBER 20, 1961, 41 COMP. GEN. 199

VEHICLES - GOVERNMENT - DAMAGES - MOTOR POOL VEHICLES - REQUISITIONING AGENCY LIABILITY--- VEHICLES - GOVERNMENT - DAMAGES - MOTOR POOL VEHICLES - REGULATION APPLICABILITY--- VEHICLES - GOVERNMENT - DAMAGES MOTOR POOL VEHICLES - REQUISITIONING AGENCY LIABILITY THE COST OF REPAIRS TO GOVERNMENT VEHICLES DAMAGED WHILE BEING OPERATED IN A MOTOR VEHICLE POOL ARE ELEMENTS OF COST INCIDENT TO THE OPERATION OF THE VEHICLE AS PROVIDED BY SECTION 211 (D) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 40 U.S.C. 491 (D), WHICH NOT ONLY MAKES THE FEDERAL SUPPLY FUND AVAILABLE FOR ALL ELEMENTS OF COST BUT SPECIFICALLY PROVIDES FOR THE RECOVERY OF ALL SUCH ELEMENTS OF COST FROM THE REQUISITIONING AGENCY; THEREFORE, REPAIR COSTS FOR DAMAGED VEHICLES ARE FOR RECOVERY FROM THE USING AGENCY. REGULATIONS TO REQUIRE REQUISITIONING AGENCIES TO BE RESPONSIBLE FOR ANY DAMAGE TO A MOTOR POOL VEHICLE, AS A SEPARATE CHARGE FROM THE COST OF THE GENERAL USE OF THE VEHICLE, ARE REGULATIONS WHICH DIRECTLY CONCERN THE OPERATION OF MOTOR VEHICLE POOLS AND ARE THEREFORE WITHIN THE SCOPE OF SECTION 211 (B) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 40 U.S.C. 491 (B), AND EXECUTIVE ORDER NO. 10579, WHICH AUTHORIZE THE ADMINISTRATOR OF GENERAL SERVICES TO PROVIDE FOR THE ESTABLISHMENT, MAINTENANCE AND OPERATION OF MOTOR VEHICLE POOLS FOR THE USE OF EXECUTIVE AGENCIES. UNDER PERSONAL PROPERTY MANAGEMENT REGULATIONS RELATIVE TO THE OPERATION OF MOTOR VEHICLE POOLS, WHICH PROVIDE THAT THE BASIS FOR DETERMINING RESPONSIBILITY FOR THE NEGLIGENCE OR MISCONDUCT WHICH CAUSED DAMAGE TO A MOTOR POOL VEHICLE SHALL BE THE FINDINGS OF THE EMPLOYING AGENCY OF THE VEHICLE OPERATOR, THE LIABILITY OF THE REQUISITIONING AGENCY FOR THE COST OF REPAIRS TO A DAMAGED VEHICLE IS DEPENDENT UPON WHETHER OR NOT NEGLIGENCE OF ITS EMPLOYEE IS INVOLVED, WHICH MAKES THE ADMINISTRATIVE DETERMINATION IN THE MATTER ESSENTIAL, AND, THEREFORE, IN THE ABSENCE OF A DETERMINATION BY A REQUISITIONING AGENCY THAT AN EMPLOYEE WHO WAS THE DRIVER OF A MOTOR POOL VEHICLE WHICH WAS DAMAGED WAS NOT NEGLIGENT, THE GENERAL SERVICES ADMINISTRATION IS ENTITLED TO REIMBURSEMENT FOR THE COST OF THE REPAIRS TO THE DAMAGED VEHICLE.

TO THE SECRETARY OF LABOR, SEPTEMBER 20, 1961:

BY LETTER OF JUNE 1, 1961, THE ADMINISTRATIVE ASSISTANT SECRETARY REQUESTS OUR DECISION AS TO WHETHER YOUR DEPARTMENT IS DIRECTLY CHARGEABLE FOR THE COST OF REPAIRING A GOVERNMENT VEHICLE REQUISITIONED FROM THE GENERAL SERVICES ADMINISTRATION INTERAGENCY MOTOR POOL FOR GALVESTON- 1HOUSTON, AND DAMAGED WHILE DRIVEN BY A DEPARTMENT OF LABOR EMPLOYEE, OR WHETHER THE COST OF SUCH REPAIRS SHOULD BE A PART OF THE USER CHARGES MADE BY GENERAL SERVICES ADMINISTRATION FOR THE USE OF MOTOR VEHICLES UNDER SECTION 211 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED BY THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1126, 40 U.S.C. 491. YOUR REQUEST INVOLVES THE REGULATIONS AND OPERATIONS OF THE GSA AND WE THEREFORE REQUESTED AND OBTAINED THEIR VIEWS IN THE MATTER.

THE QUESTION OF WHETHER A REQUISITIONING AGENCY IS REQUIRED TO REIMBURSE THE GENERAL SERVICES ADMINISTRATION FOR DAMAGES WAS CONSIDERED IN OUR DECISIONS OF NOVEMBER 7, 1957, 37 COMP. GEN. 306, AND ID. 308, AND WE HELD THAT THE GSA REGULATION WHICH REQUIRES THE AGENCY EMPLOYING THE OPERATOR OF A VEHICLE ASSIGNED FROM A MOTOR VEHICLE POOL TO BE RESPONSIBLE FOR ANY DAMAGE RESULTING FROM ABUSE, NEGLIGENCE, OR MISUSE, IS WITHIN THE SCOPE OF THE APPLICABLE LAW AND REGULATIONS OF THE PRESIDENT WHICH SPECIFICALLY AUTHORIZE ITS ISSUANCE, AND, THEREFORE, MUST BE REGARDED AS A STATUTORY REGULATION HAVING THE FORCE AND EFFECT OF LAW. ACCORDINGLY, IT WAS CONCLUDED THAT THE GENERAL SERVICES ADMINISTRATION IS ENTITLED TO REIMBURSEMENT IN SUCH CASES.

THE ADMINISTRATIVE ASSISTANT SECRETARY STATES THAT YOUR DEPARTMENT IS AWARE OF THE ABOVE-CITED DECISIONS, BUT THAT IT IS BELIEVED THAT CERTAIN CONSIDERATIONS NOT DISCUSSED THEREIN FURNISH GROUNDS FOR FURTHER CONSTRUING SECTION 211 OF THE ACT. IN THIS REGARD IT IS STATED IN HIS LETTER:

WE AGREE WITH YOUR CONSTRUCTION OF THE PHRASE "ALL ELEMENTS OF COST" IN SECTION 211 (D) OF THE ACT AS INCLUDING REPAIRS TO DAMAGED VEHICLES. DO NOT BELIEVE, HOWEVER, THAT THIS CONSTRUCTION NECESSARILY LEADS TO THE CONCLUSION THAT THE COST OF SUCH REPAIRS ARE DIRECTLY CHARGEABLE TO THE BORROWING AGENCY USING THE VEHICLE. ON THE CONTRARY, SECTION 211 (D) EXPRESSLY PROVIDES THAT "THE GENERAL SUPPLY FUND PROVIDED FOR IN SECTION 630G OF TITLE 5 SHALL BE AVAILABLE FOR USE BY OR UNDER THE DIRECTION AND CONTROL OF THE ADMINISTRATOR OF GENERAL SERVICES ADMINISTRATION FOR PAYING ALL ELEMENTS OF COST * * * INCIDENT TO THE ESTABLISHMENT, MAINTENANCE, AND OPERATION (INCLUDING SERVICING AND STORAGE) OF MOTOR VEHICLE POOLS OR SYSTEMS FOR TRANSPORTATION OF PROPERTY OR PASSENGERS. * * *"

SECTION 211 (D) ALSO PROVIDES THAT " PAYMENTS BY REQUISITIONING AGENCIES * * * SHALL BE AT PRICES FIXED BY THE ADMINISTRATOR AT LEVELS WHICH WILL RECOVER SO FAR AS PRACTICABLE ALL SUCH ELEMENTS OF COST.' IT IS OUR BELIEF THAT THIS PROVISION CONTEMPLATES APPROPRIATE USER CHARGES TO COVER, AS THE SECTION INDICATES, ALL ELEMENTS OF COST, RATHER THAN DIRECT CHARGES TO THE USING AGENCIES ON A CASE-BY-CASE BASIS WHEN A VEHICLE IS DAMAGED. THIS INTERPRETATION IS FURTHER SUPPORTED BY SECTION 109 OF THE ACT (5 U.S.C. 630G (A) (, WHICH CREATED THE GENERAL SUPPLY FUND AND MADE IT AVAILABLE FOR, AMONG OTHER THINGS,"PAYING THE COST OF PERSONAL SERVICES EMPLOYED DIRECTLY IN THE REPAIR, REHABILITATION, AND CONVERSION OF PERSONAL PROPERTY.'

SECTION 211 OF THE ACT PROVIDES, IN PERTINENT PART:

(B) SUBJECT TO REGULATIONS ISSUED BY THE PRESIDENT * * * THE ADMINISTRATOR SHALL * * * (2) PROVIDE FOR THE ESTABLISHMENT, MAINTENANCE, AND OPERATION (INCLUDING SERVICING AND STORAGE) OF MOTOR VEHICLE POOLS OR SYSTEMS FOR TRANSPORTATION OF PROPERTY OR PASSENGERS, AND FOR FURNISHING SUCH MOTOR VEHICLE AND RELATED SERVICES TO EXECUTIVE AGENCIES. * * *

(D) THE GENERAL SUPPLY FUND * * * SHALL BE AVAILABLE FOR USE BY OR UNDER THE DIRECTION AND CONTROL OF THE ADMINISTRATOR FOR PAYING ALL ELEMENTS OF COST (INCLUDING THE PURCHASE OR RENTAL PRICE OF MOTOR VEHICLES AND OTHER RELATED EQUIPMENT AND SUPPLIES) INCIDENT TO THE ESTABLISHMENT, MAINTENANCE, AND OPERATION (INCLUDING SERVICING AND STORAGE) OF MOTOR VEHICLE POOLS * * *. PAYMENTS BY REQUISITIONING AGENCIES SO SERVED SHALL BE AT PRICES FIXED BY THE ADMINISTRATOR AT LEVELS WHICH WILL RECOVER SO FAR AS PRACTICABLE ALL SUCH ELEMENTS OF COSTS. PROVIDED, THAT THE PURCHASE PRICE OF MOTOR VEHICLES * * * SHALL BE RECOVERED ONLY THROUGH CHARGE FOR THE COST OF AMORTIZATION: * * *

IT IS TO BE NOTED THAT WHILE THE GENERAL SUPPLY FUND IS AVAILABLE FOR PAYING ALL ELEMENTS OF COST, SECTION 211 (D), 40 U.S.C. 491 (D), SPECIFICALLY PROVIDES FOR RECOVERY SO FAR AS PRACTICABLE OF ALL SUCH ELEMENTS OF COSTS FROM THE REQUISITIONING AGENCIES. AS STATED IN 37 COMP. GEN. 306 AND ID. 308, THERE CAN BE NO QUESTION BUT THAT THE COSTS OF MAKING REPAIRS TO VEHICLES DAMAGED WHILE BEING OPERATED IN A MOTOR VEHICLE POOL ARE ELEMENTS OF COST INCIDENT TO THE OPERATION OF SUCH MOTOR VEHICLE POOL. HENCE, UNDER THE SPECIFIC PROVISIONS OF THE ACT THEY MAY BE RECOVERED FROM THE REQUISITIONING AGENCY. CONCERNING THE METHOD OF RECOVERY, WHETHER BY A FLAT RATE CHARGE AS DISTINGUISHED FROM SEPARATE CHARGES TO COVER THE COST OF GENERAL USE OF THE VEHICLE AND THE COST OF A PARTICULAR ACCIDENT, THE ACT DOES NOT PROSCRIBE THE ADMINISTRATOR OF GENERAL SERVICES FROM THE EXERCISE OF DISCRETION IN THE MATTER. IN THIS RESPECT IT WAS STATED IN THE ADMINISTRATOR'S LETTER OF SEPTEMBER 6, 1961, IN HIS COMMENTS ON THE QUESTION HEREIN CONSIDERED, THAT---

IN THE EXERCISE OF A BUSINESSLIKE DISCRETION, THE ADMINISTRATOR OF GENERAL SERVICES HAS HERETOFORE DETERMINED, IN THE INTEREST OF FAIRNESS TO AGENCIES PARTICIPATING IN MOTOR POOLS AS WELL AS ECONOMY IN MANAGING GENERAL SUPPLY FUND REIMBURSEMENTS, THAT A SEPARATE CHARGE FOR ACCIDENTS AND A SEPARATE CHARGE FOR ALL OTHER ELEMENTS OF COST WOULD BE A SOUNDER PROCEDURE THAN COMBINING BOTH IN A SINGLE PER MILE CHARGE.

REGULATIONS TO REQUIRE THE REQUISITIONING AGENCY TO BE RESPONSIBLE FOR ANY DAMAGE TO A MOTOR VEHICLE, AS A SEPARATE CHARGE, WERE THEREFORE ISSUED. THE AUTHORITY FOR THE ISSUANCE OF SUCH REGULATIONS WAS FULLY CONSIDERED IN OUR DECISIONS OF NOVEMBER 7, 1957, SUPRA, WHEREIN WE HELD THAT SUCH REGULATIONS WERE WITHIN THE SCOPE OF THE APPLICABLE LAW AND EXECUTIVE ORDER NO. 10579. WHILE IT IS STATED IN THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER THAT "NEITHER THE EXECUTIVE ORDER NOR THE ACT * * * GOES FURTHER THAN TO AUTHORIZE THE ADMINISTRATOR TO PROVIDE FOR THE ESTABLISHMENT, MAINTENANCE, AND OPERATION OF MOTOR VEHICLE POOLS OR SYSTEMS FOR THE USE OF EXECUTIVE AGENCIES," AND THEREFORE THAT THE REGULATIONS ARE NOT WITHIN THE INTENDED SCOPE OF AUTHORITY OF THE EXECUTIVE ORDER OR THE ACT, WE DO NOT CONCUR IN SUCH A RESTRICTED VIEW. REGULATIONS GOVERNING SO VITAL A QUESTION AS LIABILITY FOR DAMAGES TO VEHICLES ASSIGNED FROM A MOTOR VEHICLE POOL DIRECTLY CONCERN THE OPERATION OF SUCH POOLS.

REFERENCE IS MADE IN THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER TO OUR DECISION IN 30 COMP. GEN. 295, WHICH HELD THAT IN VIEW OF THE AUTHORITY GRANTED GOVERNMENT DEPARTMENTS AND AGENCIES BY SECTION 601 OF THE ECONOMY ACT OF 1932, AS AMENDED, 31 U.S.C. 686, TO NEGOTIATE AMONG THEMSELVES TO FURNISH MATERIAL, SUPPLIES, EQUIPMENT, AND SERVICES SIMILAR TO THOSE FURNISHED BY COMMERCIAL CONCERNS AND TO PAY FOR PROPERTY WHICH IS TRANSFERRED, AN AGENCY LOANING PROPERTY TO ANOTHER AGENCY MAY PROVIDE BY AGREEMENT THAT THE PROPERTY BE RETURNED IN AS GOOD CONDITION AS WHEN LOANED AND THAT THE EXPENSE OF PLACING THE PROPERTY IN SUCH CONDITION BE BORNE BY THE BORROWING AGENCY, PROVIDED THAT AGENCY'S APPROPRIATION IS AVAILABLE THEREFOR. IT IS STATED IN THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER THAT " SINCE THE GENERAL SUPPLY FUND WAS ESTABLISHED SUBSEQUENT TO THIS DECISION FOR THE EXPRESS PURPOSE OF PAYING FOR ALL ELEMENTS OF COST INCIDENT TO THE OPERATION OF A MOTOR VEHICLE POOL, WE QUESTION WHETHER THE DEPARTMENT OF LABOR'S APPROPRIATION COULD BE SIMILARLY SUBSCRIBED.'

ASIDE FROM THE FACT THAT THE PRESENT SITUATION DOES NOT ARISE UNDER THE ECONOMY ACT, PROVISIONS OF LAW GOVERNING THE OPERATION OF MOTOR VEHICLE POOLS SPECIFICALLY PROVIDE FOR THE REIMBURSEMENT OF ALL ELEMENTS OF COST BY THE REQUISITIONING AGENCY AS HEREINBEFORE INDICATED. THEREFORE UNDER THE ACT, AND REGULATIONS, APPROPRIATIONS OF THE REQUISITIONING AGENCIES ARE PROPERLY CHARGEABLE WITH THE COSTS OF REPAIRS FOR DAMAGES WHERE NEGLIGENCE OF ITS EMPLOYEES IS INVOLVED.

FINALLY, IT IS CONTENDED IN THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER THAT THE REGULATIONS OF THE GENERAL SERVICES ADMINISTRATION CREATE CERTAIN PRACTICAL DIFFICULTIES IN DETERMINING THE EXISTENCE OF NEGLIGENCE. IN THIS CONNECTION IT IS STATED IN THE LETTER:

AS AN INCIDENTAL QUESTION, THE REGULATIONS UNDER WHICH GOVERNMENT SERVICES ADMINISTRATION WOULD PLACE RESPONSIBILITY IN THE REQUISITIONING AGENCY FOR PAYMENT OF REPAIR COSTS ARE NOT CLEAR AS TO HOW AND BY WHOM ACTUAL NEGLIGENCE IS TO BE DETERMINED. FOR EXAMPLE, ABSENT JUDICIAL DECREE, IS THE DECISION TO BE MADE BY THE GENERAL SERVICES ADMINISTRATION, BY THE REQUISITIONING AGENCY, BY A TRAFFIC POLICEMAN, OR BY TESTIMONY OF WITNESSES? IS THE FAILURE ON THE PART OF A THIRD PARTY, OUTSIDE OF THE GOVERNMENT, TO FILE A TORT CLAIM INDICATIVE OF THE LACK OF NEGLIGENCE ON THE PART OF THE GOVERNMENT DRIVER? DOES THE QUESTION OF NEGLIGENCE TURN ON SOME FEDERAL CONCEPT OR IS IT DEFINED BY STATE LAW? IF STATE LAW IS APPLICABLE, IN JURISDICTIONS WITH A COMPARATIVE NEGLIGENCE RULE MUST THE REQUISITIONING AGENCY BEAR THE ENTIRE COST OF REPAIRS IF IT IS ONLY MINIMALLY NEGLIGENT?

THE APPLICABLE GENERAL SERVICES ADMINISTRATION REGULATION, PERSONAL PROPERTY MANAGEMENT REGULATIONS I-V-309.07, PAR. 2, PROVIDES IN PERTINENT PART:

THE BASIS FOR DETERMINING RESPONSIBILITY FOR THE NEGLIGENCE OR MISCONDUCT WHICH CAUSED OR PRECIPITATED THE DAMAGE TO THE MOTOR POOL VEHICLE SHALL BE THE FINDINGS OF AN INVESTIGATION CONDUCTED BY AND IN ACCORDANCE WITH ADMINISTRATIVE REGULATIONS OF THE AGENCY EMPLOYING THE VEHICLE OPERATOR.

THE DETERMINATION OF NEGLIGENCE, UNDER THE ABOVE REGULATION, IS TO BE MADE BY THE REQUISITIONING AGENCY AND IN REGARD TO SUCH DETERMINATION, WE ARE ADVISED BY GENERAL SERVICES ADMINISTRATION THAT THEY DO NOT SEEK RECOVERY ON THE GROUND THAT THERE IS NEGLIGENCE OF A NATURE WHICH WOULD SUPPORT RECOVERY IN A PRIVATE LAW SUIT. FURTHER, THAT IF AN AGENCY DETERMINES THAT ITS EMPLOYEE IS NOT NEGLIGENT OR GUILTY OF MISCONDUCT, THAT AGENCY MAY SO INDICATE AND GENERAL SERVICES ADMINISTRATION PROCEEDS TO REPAIR THE VEHICLE WITHOUT REIMBURSEMENT.

IT IS STATED IN THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER THAT A BILL FOR REPAIRS PRESENTLY BEFORE YOUR DEPARTMENT, WAS ACCOMPANIED BY A LETTER FROM THE GENERAL SERVICES ADMINISTRATION, DATED AUGUST 5, 1960, STATING THAT "OUR REGIONAL COUNSEL HAS DETERMINED THAT THE DRIVER WAS NEGLIGENT TO SOME DEGREE AND THAT THE USING AGENCY SHOULD BE BILLED FOR THE COST OF REPAIRS.' IN REGARD TO THIS STATEMENT WE ARE ADVISED BY THE GENERAL SERVICES ADMINISTRATION THAT IN REVIEWING YOUR DEPARTMENT'S INVESTIGATION REPORT THEY INTERPRETED IT AS AN INDICATION BY THE DEPARTMENT OF LABOR OF SOME NEGLIGENCE ON THE PART OF ITS EMPLOYEE. INTERPRETATION OF THE REPORT WAS REQUIRED SINCE IT IS STATED BY GENERAL SERVICES ADMINISTRATION THAT YOUR DEPARTMENT HAS NOT YET INDICATED WHETHER IT CONSIDERS ITS EMPLOYEE NEGLIGENT, IT BEING STATED IN LETTER OF OCTOBER 4, 1960, TO GENERAL SERVICES ADMINISTRATION, THAT "WHETHER OR NOT THE DRIVER WAS NEGLIGENT HAS NOT BEEN DETERMINED AND IN ANY EVENT, IS NOT MATERIAL TO THIS DISCUSSION.' SINCE UNDER THE APPLICABLE REGULATIONS THE LIABILITY OF THE REQUISITIONING AGENCY FOR THE COST OF REPAIRS TO A DAMAGED VEHICLE IS DEPENDENT UPON WHETHER OR NOT NEGLIGENCE OF ITS EMPLOYEES IS INVOLVED, SUCH DETERMINATION IS ESSENTIAL. IN THE ABSENCE OF A DETERMINATION BY YOUR DEPARTMENT THAT THE EMPLOYEE INVOLVED WAS NOT NEGLIGENT, THE GENERAL SERVICES ADMINISTRATION IS ENTITLED TO REIMBURSEMENT.

IN SUMMARY, YOU ARE ADVISED THAT OUR DECISIONS PUBLISHED IN 37 COMP. GEN. 306 AND 308, ARE FOR APPLICATION IN THE INSTANT CASE.