B-150466, JANUARY 14, 1963, 42 COMP. GEN. 376

B-150466, JANUARY 14, 1963, 42 COMP. GEN. 376

AGRICULTURE DEPARTMENT - FOREST SERVICE - SERVICES ON OTHER THAN FEDERAL LANDS - PAYMENT. AGRICULTURE DEPARTMENT - FOREST SERVICE - SERVICES ON OTHER THAN FEDERAL LANDS - PAYMENT ALTHOUGH ADVANCE DEPOSITS OF ESTIMATED COSTS ARE REQUIRED FROM PUBLIC AND PRIVATE AGENCIES TO COVER THE COOPERATIVE WORK AUTHORIZED UNDER 16 U.S.C. 572 TO BE PERFORMED BY THE FOREST SERVICE AT THE EXPENSE OF INTERESTED PARTIES, IN VIEW OF THE FACT THAT BY WRITTEN AGREEMENT PROVISION MAY BE MADE FOR EMERGENCY WORK TO BE PAID FROM FOREST SERVICE APPROPRIATIONS ON A REIMBURSABLE BASIS, PAYMENT FOR OTHER THAN EMERGENCY WORK MAY BE MADE IN ARREARS, FOR WHETHER PAID FOR IN ADVANCE OR ON REIMBURSABLE BASIS, THE WORK WOULD BE "AT THE EXPENSE OF INTERESTED PARTIES; " THEREFORE, THE LEGISLATIVE HISTORY NOT INDICATING AN INTENT TO PRECLUDE THE USE OF APPROPRIATIONS ON A REIMBURSABLE BASIS FOR OTHER THAN EMERGENCY WORK, THE FOREST SERVICE MAY PERFORM COOPERATIVE SERVICES PURSUANT TO 16 U.S.C. 572 ON A REIMBURSABLE BASIS WHEN CONSIDERED ADVANTAGEOUS TO THE GOVERNMENT, AND WHEN RECOVERY OF COSTS, INCLUDING BOND PROCEDURES, IS ASSURED. UNDER 15 U.S.C. 572, WHICH AUTHORIZES THE PERFORMANCE OF COOPERATIVE WORK BY THE FOREST SERVICE AND DEPOSIT OF MONEYS ADVANCED TO COVER THE ESTIMATED COST OF THE WORK TO A SPECIAL FUND, AMOUNTS COLLECTED ON THE BASIS OF ESTIMATED ADVANCED BILLINGS MAY NOT BE CREDITED TO FOREST SERVICE APPROPRIATIONS PRIOR TO PERFORMANCE OF THE WORK, AND SUCH AMOUNTS WHICH REPRESENT ADVANCE DEPOSITS ARE FOR CREDIT TO THE SPECIAL FUND.

TO THE SECRETARY OF AGRICULTURE, JANUARY 14, 1963:

YOUR LETTER OF DECEMBER 13, 1962, CONCERNS THE PERFORMANCE OF COOPERATIVE WORK BY THE FOREST SERVICE WITH FUNDS PROVIDED BY NONFEDERAL SOURCES.

YOU STATE THAT FOR THE PAST 12 YEARS A SUBSTANTIAL AMOUNT OF COOPERATIVE WORK HAS BEEN DONE UNDER AUTHORITY OF AN AMENDMENT CONTAINED IN SECTION 5 OF THE ACT OF APRIL 24, 1950, 64 STAT. 82 (16 U.S.C. 572). THIS SECTION READS AS FOLLOWS:

SEC. 5. THAT SECTION 1 OF THE ACT OF MARCH 3, 1925 (43 STAT. 1132; 16 U.S.C. 572), IS HEREBY AMENDED TO READ AS FOLLOWS:

"SEC. 1. (A) THE SECRETARY OF AGRICULTURE IS AUTHORIZED, WHERE THE PUBLIC INTEREST JUSTIFIES, TO COOPERATE WITH OR ASSIST PUBLIC AND PRIVATE AGENCIES, ORGANIZATIONS, INSTITUTIONS, AND PERSONS IN PERFORMING WORK ON LAND IN STATE, COUNTY, MUNICIPAL, OR PRIVATE OWNERSHIP, SITUATED WITHIN OR NEAR A NATIONAL FOREST, FOR WHICH THE ADMINISTERING AGENCY, OWNER, OR OTHER INTERESTED PARTY DEPOSITS IN ONE OR MORE PAYMENTS A SUFFICIENT SUM TO COVER THE TOTAL ESTIMATED COST OF THE WORK TO BE DONE FOR THE BENEFIT OF THE DEPOSITOR, FOR ADMINISTRATION, PROTECTION, IMPROVEMENT, REFORESTATION, AND SUCH OTHER KINDS OF WORK AS THE FOREST SERVICE IS AUTHORIZED TO DO ON LANDS OF THE UNITED STATES: PROVIDED, THAT THE UNITED STATES SHALL NOT BE LIABLE TO THE DEPOSITOR OR LANDOWNER FOR ANY DAMAGE INCIDENT TO THE PERFORMANCE OF SUCH WORK.

"/B) COOPERATION AND ASSISTANCE ON THE SAME BASIS AS THAT AUTHORIZED IN SUBSECTION (A) IS AUTHORIZED ALSO IN THE PERFORMANCE OF ANY SUCH KINDS OF WORK IN CONNECTION WITH THE OCCUPANCY OR USE OF THE NATIONAL FORESTS OR OTHER LANDS ADMINISTERED BY THE FOREST SERVICE.

"/C) MONEYS DEPOSITED UNDER THIS SECTION SHALL BE COVERED INTO THE TREASURY AND SHALL CONSTITUTE A SPECIAL FUND, WHICH IS HEREBY MADE AVAILABLE UNTIL EXPENDED FOR PAYMENT OF THE COST OF WORK PERFORMED BY THE FOREST SERVICE AND FOR REFUNDS TO DEPOSITORS OF AMOUNTS DEPOSITED BY THEM IN EXCESS OF THEIR SHARE OF SAID COST: PROVIDED, THAT WHEN DEPOSITS ARE RECEIVED FOR A NUMBER OF SIMILAR TYPES OF WORK ON ADJACENT OR OVERLAPPING AREAS, OR ON AREAS WHICH IN THE AGGREGATE ARE DETERMINED TO COVER A SINGLE WORK UNIT, THEY MAY BE EXPENDED ON SUCH COMBINED AREAS FOR THE PURPOSES FOR WHICH DEPOSITED, IN WHICH EVENT REFUNDS TO THE DEPOSITORS OF THE TOTAL AMOUNT OF THE EXCESS DEPOSITS INVOLVED WILL BE MADE ON A PROPORTIONATE BASIS: PROVIDED FURTHER, THAT WHEN SO PROVIDED BY WRITTEN AGREEMENT PAYMENT FOR WORK UNDERTAKEN PURSUANT TO THIS SECTION MAY BE MADE FROM ANY FOREST SERVICE APPROPRIATION AVAILABLE FOR SIMILAR TYPES OF WORK, AND REIMBURSEMENT RECEIVED FROM SAID AGENCIES, ORGANIZATIONS, INSTITUTIONS, OR PERSONS COVERING THEIR PROPORTIONATE SHARE OF THE COST AND THE FUNDS RECEIVED AS REIMBURSEMENT SHALL BE DEPOSITED TO THE CREDIT OF THE FOREST SERVICE APPROPRIATION FROM WHICH INITIALLY PAID OR TO APPROPRIATIONS OR SIMILAR PURPOSES CURRENTLY AVAILABLE AT THE TIME OF DEPOSIT: PROVIDED FURTHER, THAT WHEN BY THE TERMS OF A WRITTEN AGREEMENT EITHER PARTY THERETO FURNISHES MATERIALS, SUPPLIES, EQUIPMENT, OR SERVICES FOR FIRE EMERGENCIES IN EXCESS OF ITS PROPORTIONATE SHARE, ADJUSTMENT MAY BE MADE BY REIMBURSEMENT OR BY REPLACEMENT IN KIND OF SUPPLIES, MATERIALS, AND EQUIPMENT CONSUMED OR DESTROYED IN EXCESS OF THE FURNISHING PARTY'S PROPORTIONATE SHARE.'

YOU ADVISE THAT FOREST SERVICE POLICY HAS BEEN TO REQUIRE ADVANCE DEPOSITS IN AMOUNTS SUFFICIENT TO COVER THE COST OF THE WORK BEING PERFORMED. YOU STATE THAT WHEN SUCH WORK WAS TO BE PERFORMED AT THE REQUEST OF A NATIONAL FOREST USER, SUCH AS A TIMBER PURCHASER, THE ADVANCE PAYMENT POLICY WAS COMPATIBLE WITH THE REQUIREMENT THAT TIMBER TO BE CUT WAS TO BE PAID FOR IN ADVANCE OF CUTTING. HOWEVER, YOU STATE THAT RECENT CHANGES IN PAYMENT METHODS PERMIT PAYMENT AFTER THE TIMBER HAS BEEN CUT WHEN THE PAYMENT TO THE GOVERNMENT IS GUARANTEED BY PAYMENT BOND OR OTHER ACCEPTABLE SURETY. YOU EXPLAIN THAT PROVISIONS FOR ARREARS PAYMENTS FOR TIMBER VALUES ON THE ONE HAND AND ADVANCE DEPOSITS FOR COOPERATIVE WORK PERTAINING TO THE SAME TIMBER SALE OPERATION ON THE OTHER HAVE CREATED ADMINISTRATIVE PROBLEMS.

YOU STATE THAT THE FOREST SERVICE DESIRES TO PERMIT PAYMENT IN ARREARS FOR WORK PERFORMED FOR COOPERATORS IN INSTANCES WHERE: (1) IT HAS BEEN ADMINISTRATIVELY DETERMINED TO BE ADVANTAGEOUS TO THE GOVERNMENT; AND (2) NECESSARY PRECAUTIONS HAVE BEEN TAKEN TO INSURE THE RECOVERY OF ALL COSTS INVOLVED, INCLUDING PAYMENT BOND PROCEDURES. THE EXPENSES WOULD BE PAID INITIALLY FROM APPROPRIATIONS AVAILABLE FOR SIMILAR TYPES OF WORK AND WOULD BE REPAID TO SUCH APPROPRIATIONS AS AUTHORIZED IN THE SECOND PROVISO OF SUBSECTION (C) QUOTED ABOVE. YOU STATE THAT ALTHOUGH THE WORDING OF THIS PROVISO APPARENTLY PROVIDES BROAD AUTHORITY FOR MAKING EXPENDITURES FROM FOREST SERVICE APPROPRIATIONS AND FOR REIMBURSEMENT TO THE UNITED STATES UNDER CERTAIN CONDITIONS, THE ILLUSTRATIONS OF ITS APPLICABILITY GIVEN IN THE LEGISLATIVE HISTORY OF H.REPT. NO. 1189 AND S.REPT. NO. 1069, 81ST CONGRESS, ARE MORE LIMITED. YOU QUOTE THE FOLLOWING FROM THE CITED REPORTS:

(C) THE NEED FOR THE AUTHORITY CONFERRED BY THE SECOND PROVISO OF SUBSECTION (C) WILL NOT ARISE OFTEN BUT WHEN IT DOES THE FOREST SERVICE WILL BE IN A POSITION TO AID IN MEETING A LOCAL EMERGENCY, PURSUANT TO THE TERMS OF A WRITTEN AGREEMENT. TO ILLUSTRATE, IN AN ISOLATED COMMUNITY, THE COUNTY SNOW PLOW, COMMONLY USED FOR KEEPING OPEN THE ROAD TO THE LOCAL SCHOOL, BREAKS DOWN. THE FOREST SERVICE HAS IN THE VICINITY A TRACTOR WITH BULLDOZER ATTACHMENT, USED FOR CONSTRUCTING AND MAINTAINING MINOR FOREST ROADS TRIBUTARY TO THE COMMUNITY.

WHEN OTHER SUITABLE EQUIPMENT IS NOT AVAILABLE, THE COUNTY MAY REQUEST THE ASSISTANCE OF THE FOREST SERVICE IN KEEPING THE ROAD OPEN UNTIL ITS OWN SNOW PLOW IS REPAIRED. IN SUCH INSTANCES THE FOREST SERVICE APPROPRIATION COULD BE REIMBURSED BY THE LOCAL PUBLIC AGENCY OR PERSON FOR WHOM THE SERVICE WAS PERFORMED.

ANOTHER EXAMPLE OF SUCH A LOCAL EMERGENCY IS WHERE A CONTRACTOR MOVING THROUGH THE NATIONAL FOREST EN ROUTE TO A CONSTRUCTION JOB DAMAGES A FOREST SERVICE TELEPHONE LINE AND COMPLETELY DISRUPTS TELEPHONE SERVICE WHEN UNITS OF HEAVY EQUIPMENT ACCIDENTALLY SLIDE OFF THE ROAD. THE CONTRACTOR IS ANXIOUS TO GET HIS EQUIPMENT TO THE SITE OF THIS CONSTRUCTION JOB AS SOON AS POSSIBLE. ON THE OTHER HAND, SERVICE OVER THE TELEPHONE LINE IS ESSENTIAL TO MEET FOREST SERVICE AND GENERAL PUBLIC NEEDS. WHERE FOREST SERVICE EMPLOYEES ARE THE ONLY ONES IMMEDIATELY AVAILABLE AND QUALIFIED TO RESTORE THE LINE IT OBVIOUSLY IS IN THE INTEREST OF ALL CONCERNED FOR THE FOREST SERVICE TO ENTER INTO AN AGREEMENT TO MAKE THE NECESSARY REPAIRS AND ALLOW THE CONTRACTOR TO REIMBURSE IT FOR THE EXPENDITURE INCURRED.

YOU STATE THAT THE SITUATIONS FOR WHICH IT WOULD NOW BE DESIRABLE TO PERMIT PAYMENT IN ARREARS DO NOT INVOLVE OCCASIONAL EMERGENCIES, BUT RATHER A CONTINUING PROCEDURE FOR SETTLEMENT IN ARREARS FOR WORK IN ORDER TO PROVIDE SIGNIFICANT ADMINISTRATIVE ADVANTAGES AND TO PLACE THE PROCEDURES USED BY THE FOREST SERVICE ON A BASIS COMPARABLE TO THOSE IN PRIVATE BUSINESS. YOU EXPLAIN THAT WHEN TIMBER SALE PAYMENTS ARE MADE IN ARREARS UNDER PAYMENT BOND PROCEDURES, ADDITIONAL FREQUENT ADVANCE BILLINGS FOR DEPOSIT FOR WORK TO BE DONE BY THE FOREST SERVICE ARE ADMINISTRATIVELY UNDESIRABLE TO BOTH THE FOREST SERVICE AND THE PURCHASER BECAUSE OF THE INCREASED RECORD KEEPING AND EXPENSE INVOLVED.

IT IS STATED IN YOUR LETTER THAT AN EXAMPLE OF A CURRENT SITUATION TO WHICH THE AUTHORITY MIGHT BE APPLIED IS IN CONNECTION WITH ADMINISTRATION OF A TIMBER SALE WHERE THE PURCHASER HAS ELECTED TO PAY THE FOREST SERVICE FOR PERFORMING WORK FOR WHICH THE PURCHASER IS RESPONSIBLE UNDER THE CONTRACT TERMS. YOU EXPLAIN THAT GENERALLY SUCH A CASE INVOLVES TWO TYPES OF SERVICES AND PROCEDURES AS FOLLOWS--- QUOTING FROM YOUR LETTER:

(1) WORK NECESSARY TO PROTECT THE LOGGED-OVER AREA FROM SOIL EROSION AND TO PERFORM THE MAINTENANCE OF FOREST SERVICE ROADS NECESSITATED BY THE PURCHASER'S USE IN THE LOGGING OPERATIONS. FOR EACH TYPE OF WORK, THE TOTAL ESTIMATED COST IS DETERMINED BY APPLYING KNOWN UNIT COSTS TO UNITS OF WORK NEEDED BASED ON EXPERIENCE. THE TOTAL ESTIMATED COST IS THEN CONVERTED TO A RATE PER-THOUSAND BOARD FEET OF TIMBER COVERED BY THE CONTRACT. UNDER THE PROPOSED ARREARS PAYMENT BASIS THE PURCHASER WOULD GENERALLY BE BILLED MONTHLY AT A RATE PER THOUSAND BOARD FEET FOR TIMBER REPORTED CUT, IRRESPECTIVE OF WHETHER THE WORK INVOLVED HAD OR HAD NOT BEEN ACCOMPLISHED. IN SOME INSTANCES THE BILLING MAY BE MADE IN LUMP SUM AMOUNTS BASED ON COST OF WORK PERFORMED. IN EITHER CASE DEPOSITS WOULD BE CREDITED TO THE FOREST SERVICE APPROPRIATIONS TO WHICH EXPENDITURES FOR ACCOMPLISHING THE WORK WERE OR WOULD BE CHARGED.

(2) SCALING SERVICES, AS REQUIRED BY THE TERMS OF TIMBER SALES CONTRACTS, AND SPECIAL SCALING REPORTS REQUESTED BY THE OPERATOR IN ADDITION TO THOSE REQUIRED BY THE FOREST SERVICE. AMOUNTS CHARGED TO THE OPERATOR FOR EXTRA SCALING SERVICES PERFORMED ARE DETERMINED BY ACTUAL COSTS, FIXED UNIT RATES PER THOUSAND BOARD FEET OF TIMBER WHICH ARE SET ON THE BASIS OF ESTIMATED COSTS, OR A COMBINATION OF THE TWO COST DETERMINATION METHODS.

UNDER PRESENT PROCEDURES THE COSTS OF DOING THIS WORK ARE INITIALLY CHARGED TO THE FOREST SERVICE APPROPRIATION FOR SCALING AND TRANSFERRED TO THE PURCHASER'S ADVANCE DEPOSIT ACCOUNT EACH PAY PERIOD (BI-WEEKLY) BASED ON REPORTS OF ACTUAL WORK PERFORMED OR VOLUMES OF TIMBER INVOLVED OR BOTH. THE PROPOSAL IS TO PERMIT ARREARS PAYMENT INSTEAD OF ADVANCE DEPOSITS AND TO DEPOSIT AMOUNTS COLLECTED TO THE APPROPRIATIONS CHARGED.

YOU STATE THAT SCALING SERVICES ARE GENERALLY PERFORMED UNDER THE AUTHORITY OF SECTION 5 OF THE ACT OF APRIL 24, 1950, SINCE IT ALSO PROVIDES AUTHORITY FOR RELATED COOPERATIVE WORK FOR USERS OF THE NATIONAL FORESTS AND ALL SUCH WORK CAN BE TREATED AS UNDER ONE AUTHORITY. YOU EXPLAIN THAT SECTION 210, ACT OF SEPTEMBER 21, 1944, 58 STAT. 737 (16 U.S.C. 572A), QUOTED BELOW, SPECIFICALLY AUTHORIZES THE FOREST SERVICE TO PROVIDE SPECIAL SCALING SERVICES ON A COOPERATIVE BASIS.

THE FOREST SERVICE MAY ACCEPT MONEY FROM TIMBER PURCHASERS FOR DEPOSIT INTO THE TREASURY IN THE TRUST ACCOUNT,"FOREST SERVICE COOPERATIVE FUND," WHICH MONEYS ARE HEREBY MADE AVAILABLE FOR SCALING SERVICES REQUESTED BY PURCHASERS IN ADDITION TO THOSE REQUIRED BY THE FOREST SERVICE, AND FOR REFUNDS OF AMOUNTS DEPOSITED IN EXCESS OF THE COST OF SUCH WORK.

OUR DECISION IS REQUESTED WHETHER THE PROPOSED PROCEDURES ARE AUTHORIZED BY THE PROVISIONS OF THE ACT OF APRIL 24, 1950.

THE PURPOSE OF THE ACT OF APRIL 24, 1950, WAS TO PERMIT THE FOREST SERVICE TO CARRY OUT MORE EFFICIENTLY AND MORE EFFECTIVELY THE FUNCTIONS AND DUTIES IMPOSED ON IT BY CONGRESS. SEE PAGE 1 OF H.REPT. NO. 1189 AND S.REPT. NO. 1069, 81ST CONGRESS, 1ST SESSION. THE PRIMARY PURPOSE OF SECTION 5 OF THE SAME ACT WAS TO BROADEN THE AUTHORITY OF SECTION 1 OF THE ACT OF MARCH 3, 1925, TO PERMIT PERFORMANCE OF VARIOUS KINDS OF WORK BY THE FOREST SERVICE, AT THE EXPENSE OF INTERESTED PARTIES, ON NATIONAL FOREST AND RELATED LANDS. SEE PAGE 5 OF THE SAME REPORTS. IN LIGHT OF WHAT IS STATED IN YOUR LETTER THE PROPOSED PROCEDURES WOULD APPEAR TO PERMIT THE FOREST SERVICE TO CARRY OUT ITS FUNCTIONS AND DUTIES MORE EFFICIENTLY AND MORE EFFECTIVELY; AND WHETHER THE WORK INVOLVED IS PAID FOR IN ADVANCE OR ON ARE IMBURSABLE BASIS IT WOULD BE "AT THE EXPENSE OF INTERESTED PARTIES.'

ALSO, THE LANGUAGE USED IN THE PROVISO IN QUESTION IS VERY BROAD AND PROVIDES FOR RENDERING SERVICES ON A REIMBURSABLE BASIS WHERE IT IS SO PROVIDED BY WRITTEN AGREEMENT. THE LEGISLATIVE HISTORY OF SECTION 5 DISCLOSES THAT THE SENATE COMMITTEE ON AGRICULTURE AND FORESTRY AND THE HOUSE COMMITTEE ON AGRICULTURE WERE OF THE OPINION THAT THE NEED FOR THE AUTHORITY CONFERRED BY THE PROVISO WOULD NOT ARISE OFTEN BUT THAT WHEN THE NEED AROSE THE FOREST SERVICE WOULD BE IN A POSITION TO AID IN MEETING A LOCAL EMERGENCY PURSUANT TO THE TERMS OF A WRITTEN AGREEMENT. IN OTHER WORDS, IT APPEARS THAT THE PROVISO WAS INSERTED IN SUBSECTION (3) OF SECTION 5 TO ENABLE THE FOREST SERVICE TO RENDER THE SERVICES AUTHORIZED BY SECTION 5 ON A REIMBURSABLE BASIS IN SITUATIONS INVOLVING A LOCAL EMERGENCY.

HOWEVER, WE FOUND NOTHING IN THE LEGISLATIVE HISTORY WHICH WOULD INDICATED THAT THE COMMITTEE INTENDED TO PRECLUDE THE USE OF THE AUTHORITY CONTAINED IN THE PROVISO IN SITUATIONS NOT INVOLVING EMERGENCIES, WHEN IT IS DETERMINED BY THE FOREST SERVICE THAT THE USE OF SUCH AUTHORITY IN OTHER INSTANCES WOULD BE ADVANTAGEOUS TO THE GOVERNMENT.

IN VIEW OF THE FOREGOING WE WOULD HAVE NO LEGAL OBJECTION TO THE FOREST SERVICE RENDERING THE SERVICES AUTHORIZED BY SECTION 5 ON A REIMBURSABLE BASIS PURSUANT TO THE BROAD AUTHORITY CONTAINED IN THE SECOND PROVISO OF SUBSECTION (C) OF THAT SECTION, IN INSTANCES WHERE (1) IT HAS BEEN ADMINISTRATIVELY DETERMINED TO BE ADVANTAGEOUS TO THE GOVERNMENT AND (2) NECESSARY PRECAUTIONS HAVE BEEN TAKEN TO INSURE THE RECOVERY OF ALL COSTS INVOLVED, INCLUDING PAYMENT BOND PROCEDURES. WE FIND NO BASIS, HOWEVER, FOR CREDITING AMOUNTS COLLECTED ON THE BASIS OF ESTIMATED BILLINGS TO THE APPROPRIATIONS PRIOR TO PERFORMANCE OF THE WORK AS INDICATED IN THE FIRST TYPE OF WORK SET OUT ON PAGE 4 OF YOUR LETTER. SUCH AMOUNTS REPRESENT ADVANCE DEPOSITS AND SHOULD BE CREDITED TO THE FUND. THERE THUS WOULD BE SOME ADVANTAGES TO CREDITING ALL COLLECTIONS INITIALLY TO THE FUND.

SINCE THE SECOND PROVISO OF SECTION 5 (C), 16 U.S.C. 572 (C), HOWEVER, WOULD THUS BE USED IN SITUATIONS OTHER THAN THE EMERGENCIES CONTEMPLATED BY THE CONGRESS AT THE TIME OF ITS ENACTMENT, WE SUGGEST THAT THE APPROPRIATE CONGRESSIONAL COMMITTEES BE SO INFORMED.