B-162933, DEC. 22, 1967

B-162933: Dec 22, 1967

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DURING THE TIME OF YOUR OCCUPANCY OF THE QUARTERS IN QUESTION A RENTAL CHARGE FOR SUCH QUARTERS BASED ON THE REASONABLE VALUE THEREOF WAS REQUIRED TO BE MADE BY THE ACT OF AUGUST 20. IN THE CIRCUMSTANCES UNDER WHICH THE QUARTERS AND FACILITIES ARE PROVIDED. WHEN PAYMENT OF THE RATES AND CHARGES IS MADE BY OTHER THAN PAYROLL DEDUCTIONS. THE ABOVE QUOTED STATUTORY PROVISIONS ARE IMPLEMENTED BY AUTHORIZED REGULATIONS PROMULGATED BY THE DIRECTOR. NO OFFICER OR EMPLOYEE OF THE GOVERNMENT AT WESTOVER AIR FORCE BASE WAS CLOTHED WITH AUTHORITY TO AGREE OR CONTRACT WITH YOU TO FURNISH THE GOVERNMENT QUARTERS OCCUPIED BY YOU WITHOUT A RENTAL CHARGE. THE MAID SERVICE FURNISHED IN REGARD TO YOUR QUARTERS AT $15 A MONTH WAS A CHARGE FOR A FACILITY WITHIN THE PURVIEW OF THE LAW RATHER THAN A RENTAL CHARGE FOR THE QUARTERS AS SUCH.

B-162933, DEC. 22, 1967

TO MR. JOSEPH A. BESSO:

YOUR LETTER OF NOVEMBER 2, 1967, REQUESTS REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT OF OCTOBER 26, 1967, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $358 COLLECTED BY THE DEPARTMENT OF THE AIR FORCE TO COVER THE RENTAL OF QUARTERS FURNISHED YOU BY THE DEPARTMENT AS A CIVILIAN EMPLOYEE AT WESTOVER AIR FORCE BASE DURING THE PERIOD JULY 18, 1966, TO FEBRUARY 1, 1967.

DURING THE TIME OF YOUR OCCUPANCY OF THE QUARTERS IN QUESTION A RENTAL CHARGE FOR SUCH QUARTERS BASED ON THE REASONABLE VALUE THEREOF WAS REQUIRED TO BE MADE BY THE ACT OF AUGUST 20, 1964, 78 STAT. 557, NOW CODIFIED IN 5 U.S.C. 5911.

SO FAR AS HERE PERTINENT 5 U.S.C. 5911 PROVIDES, IN PART, AS FOLLOWS:

"/B) THE HEAD OF AN AGENCY MAY PROVIDE * * * AN EMPLOYEE STATIONED IN THE UNITED STATES WITH QUARTERS AND FACILITIES, WHEN CONDITIONS OF EMPLOYMENT OR OF AVAILABILITY OF QUARTERS WARRANT THE ACTION.

"/C) RENTAL RATES FOR QUARTERS PROVIDED FOR AN EMPLOYEE UNDER SUBSECTION (B) OF THIS SECTION * * * AND CHARGES FOR FACILITIES MADE AVAILABLE IN CONNECTION WITH THE OCCUPANCY OF THE QUARTERS, SHALL BE BASED ON THE REASONABLE VALUE OF THE QUARTERS AND FACILITIES TO THE EMPLOYEE * * * CONCERNED, IN THE CIRCUMSTANCES UNDER WHICH THE QUARTERS AND FACILITIES ARE PROVIDED, OCCUPIED, OR MADE AVAILABLE. THE AMOUNTS OF THE RATES AND CHARGES SHALL BE PAID BY, OR DEDUCTED FROM THE PAY OF, THE EMPLOYEE * * * OR OTHERWISE CHARGED AGAINST HIM IN ACCORDANCE WITH LAW. THE AMOUNTS OF PAYROLL DEDUCTIONS FOR THE RATES AND CHARGES SHALL REMAIN IN THE APPLICABLE APPROPRIATION OR FUND. WHEN PAYMENT OF THE RATES AND CHARGES IS MADE BY OTHER THAN PAYROLL DEDUCTIONS, THE AMOUNTS OF PAYMENT SHALL BE CREDITED TO THE GOVERNMENT AS PROVIDED BY LAW.'

THE ABOVE QUOTED STATUTORY PROVISIONS ARE IMPLEMENTED BY AUTHORIZED REGULATIONS PROMULGATED BY THE DIRECTOR, BUREAU OF THE BUDGET, IN BUREAU OF THE BUDGET CIRCULAR NO. A-45, REVISED OCTOBER 31, 1964.

THE IMPLEMENTING REGULATIONS CONTEMPLATE THAT THE REASONABLE VALUE OF THE QUARTERS FURNISHED SHALL BE ASCERTAINED BY REFERENCE TO THE RENTAL RATES CHARGED FOR COMPARABLE PRIVATELY OWNED QUARTERS OR HOUSING IN THE AREA WHICH REFLECT THE FAIR MARKET OF THE GOVERNMENT QUARTERS.

IN VIEW OF THE REQUIREMENTS OF THE STATUTE, THE STATUTORY REGULATIONS IN CIRCULAR NO. A-45 AND SECTION 2 OF AIR FORCE REGULATIONS NO. 40-551, DATED NOVEMBER 30, 1964, NO OFFICER OR EMPLOYEE OF THE GOVERNMENT AT WESTOVER AIR FORCE BASE WAS CLOTHED WITH AUTHORITY TO AGREE OR CONTRACT WITH YOU TO FURNISH THE GOVERNMENT QUARTERS OCCUPIED BY YOU WITHOUT A RENTAL CHARGE. THE MAID SERVICE FURNISHED IN REGARD TO YOUR QUARTERS AT $15 A MONTH WAS A CHARGE FOR A FACILITY WITHIN THE PURVIEW OF THE LAW RATHER THAN A RENTAL CHARGE FOR THE QUARTERS AS SUCH.

THE INFORMATION FURNISHED US BY THE DEPARTMENT OF THE AIR FORCE SHOWS THAT IN THE ABSENCE OF A CURRENTLY ESTABLISHED FAIR RENTAL RATE FOR YOUR QUARTERS THE DEPARTMENT USED AS A BASIS FOR DETERMINATING YOUR INDEBTEDNESS A FAIR RENTAL RATE OF $60 A MONTH ESTABLISHED FOR THE QUARTERS IN 1962 BY THE ARMY CORPS OF ENGINEERS (APPRAISAL REPORT OF RENTS, RCS: 1-AF-XBB-Z1, DATED 27 JUNE 1962).

IN OUR REVIEW OF YOUR CASE WE DO NOT PASS UPON THE REASONABLENESS OF THE RENTAL RATE CHARGED YOU SINCE THE FIXING OF SUCH RATES IS A RESPONSIBILITY OF THE DEPARTMENT OF THE AIR FORCE UNDER THE GUIDELINES CONTAINED IN BUREAU OF THE BUDGET CIRCULAR NO. A-45.

WE MUST CONCLUDE, HOWEVER, THAT NO OFFICER OR EMPLOYEE OF THE AIR FORCE WAS AUTHORIZED TO CONTRACT ON BEHALF OF THE GOVERNMENT TO FURNISH YOU THE QUARTERS WITHOUT CHARGE OF A REASONABLE RENTAL FOR SUCH QUARTERS.

THEREFORE, ON THE PRESENT RECORD, THE CONCLUSION REACHED IN OUR OFFICE SETTLEMENT OF OCTOBER 26, 1967, MUST BE SUSTAINED.

OUR OFFICE WILL GIVE OBJECTIVE CONSIDERATION TO ANY ARGUMENT ADVANCED ON YOUR BEHALF BY AN ATTORNEY. WE REQUEST THAT HIS AUTHORITY TO REPRESENT YOU BE EVIDENCED BY A POWER OF ATTORNEY. ALSO, WE POINT OUT THAT CLAIMS ARE SETTLED BY US UPON THE BASIS OF THE WRITTEN RECORD. THE DISALLOWANCE BY OUR OFFICE, OF COURSE, DOES NOT PRECLUDE A CLAIMANT FROM ASSERTING HIS RIGHTS IN THE COURTS.