B-165196, SEPTEMBER 25, 1968, 48 COMP. GEN. 161

B-165196: Sep 25, 1968

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WHICH PROVIDES FOR THE SALE OF LAND AT 50 PERCENT OF ITS FAIR VALUE AND FOR ITS REVERSION TO THE GOVERNMENT IN THE EVENT THE LAND IS NOT USED FOR THE PURPOSE OF THE CONVEYANCE IS NOT A GRANT OF FEDERAL FUNDS PRECLUDING REIMBURSEMENT TO THE STATE OF 75 PERCENT OF THE COST OF THE PROJECT UNDER THE TERMS OF THE FEDERAL AID IN WILDLIFE RESTORATION ACT OF 1937. - AND THE FACT THAT THE LAND WAS PURCHASED FOR LESS THAN ITS "FAIR VALUE" DOES NOT PROHIBIT REIMBURSEMENT. ARE SET FORTH BELOW. BASED ON THE HIGHEST AND BEST USE OF THE PROPERTY AT THE TIME IT IS OFFERED FOR DISPOSAL. THIS STATUTE ALSO PROVIDES THAT THE PROPERTY SHALL BE USED FOR THE PURPOSE FOR WHICH IT WAS CONVEYED FOR A PERIOD OF NOT LESS THAN 20 YEARS.

B-165196, SEPTEMBER 25, 1968, 48 COMP. GEN. 161

STATES - RECREATIONAL PROJECTS - PURCHASE OF LAND REIMBURSEMENT THE CONVEYANCE OF LAND PURCHASED BY THE STATE OF KENTUCKY FROM GENERAL SERVICES ADMINISTRATION FOR RECREATIONAL PURPOSES PURSUANT TO THE AUTHORITY IN 50 U.S.C. 1622 (H), WHICH PROVIDES FOR THE SALE OF LAND AT 50 PERCENT OF ITS FAIR VALUE AND FOR ITS REVERSION TO THE GOVERNMENT IN THE EVENT THE LAND IS NOT USED FOR THE PURPOSE OF THE CONVEYANCE IS NOT A GRANT OF FEDERAL FUNDS PRECLUDING REIMBURSEMENT TO THE STATE OF 75 PERCENT OF THE COST OF THE PROJECT UNDER THE TERMS OF THE FEDERAL AID IN WILDLIFE RESTORATION ACT OF 1937--- A PROJECT APPROVED BY THE SECRETARY OF THE INTERIOR--- AND THE FACT THAT THE LAND WAS PURCHASED FOR LESS THAN ITS "FAIR VALUE" DOES NOT PROHIBIT REIMBURSEMENT, THE PURCHASE PRICE PAID FOR THE LAND CONSTITUTING THE COST OF THE PROJECT.

TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 25, 1968:

LETTER DATED SEPTEMBER 3, 1968, FROM THE DEPUTY ASSISTANT SECRETARY OF THE INTERIOR REQUESTS A DECISION AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT A VOUCHER IN FAVOR OF THE TREASURER, STATE OF KENTUCKY, IN THE AMOUNT OF $118,837.50.

THE PERTINENT FACTS AND CIRCUMSTANCES GIVING RISE TO THE REQUEST FOR DECISION, AS DISCLOSED BY THE DEPUTY ASSISTANT SECRETARY'S LETTER, ARE SET FORTH BELOW.

THE VOUCHER RESULTS FROM A WILDLIFE-RESTORATION PROJECT APPROVED BY THE SECRETARY OF THE INTERIOR ON JULY 25, 1966, FOR THE STATE OF KENTUCKY, UNDER THE TERMS OF THE FEDERAL AID IN WILDLIFE RESTORATION ACT OF 1937, COMMONLY KNOWN AS THE PITTMAN-ROBERTSON ACT, 50 STAT. 917, AS AMENDED, 16 U.S.C. 669 ET SEQ. THE PROJECT, IDENTIFIED AS W-44 L 1UNDER CONTRACT NUMBER 14-16-0004-757, INVOLVED THE PURCHASE BY THE STATE OF LAND FOR RECREATIONAL PURPOSES FROM THE GENERAL SERVICES ADMINISTRATION. UNDER THE TERMS OF 50 U.S.C. 1622 (H), SUCH LAND FOR RECREATIONAL PURPOSES MAY BE SOLD TO A STATE "AT A PRICE EQUAL TO 50 PERCENTUM OF THE FAIR VALUE OF THE PROPERTY CONVEYED, BASED ON THE HIGHEST AND BEST USE OF THE PROPERTY AT THE TIME IT IS OFFERED FOR DISPOSAL, REGARDLESS OF ITS FORMER CHARACTER OR USE, AS DETERMINED BY THE ADMINISTRATOR (OF GENERAL SERVICES).' THIS STATUTE ALSO PROVIDES THAT THE PROPERTY SHALL BE USED FOR THE PURPOSE FOR WHICH IT WAS CONVEYED FOR A PERIOD OF NOT LESS THAN 20 YEARS, OR IT MAY REVERT AT THE OPTION OF THE UNITED STATES. THE ACQUISITION WAS ACCOMPLISHED BY THE STATE OF KENTUCKY IN WHICH TITLE NOW VESTS.

THE COST TO THE STATE OF THE LAND (AND THE PROJECT), AS INDICATED BY THE VOUCHER, WAS $158,450. THE STATE NOW SEEKS REIMBURSEMENT UNDER THE SAID FEDERAL AID IN WILDLIFE RESTORATION ACT AT THE RATE OF 75 PERCENTUM OF THE COST OF THE PROJECT, OR $118,837.50. THE REFERENCED ACT PROVIDES IN 16 U.S.C. 669E THAT THE FEDERAL PORTION OF A WILDLIFE RESTORATION PROJECT APPROVED THEREUNDER SHALL NOT EXCEED 75 PERCENTUM OF THE TOTAL ESTIMATED COST THEREOF; AND, 16 U.S.C. 669F GENERALLY CONTEMPLATES REIMBURSEMENT PAYMENTS BY THE GOVERNMENT.

THE GENERAL SERVICES ADMINISTRATION HAS RAISED THE QUESTION OF THE PROPRIETY OF PAYMENT ON THE BASIS OF THE HOLDING IN OUR DECISION OF JULY 28, 1967, 47 COMP. GEN. 81, DEALING WITH THE USE OF THE SAME "MATCHING MONEY" FOR FEDERAL GRANTS FROM TWO DIFFERENT AGENCIES.

THE DEPUTY ASSISTANT SECRETARY STATES THAT YOUR DEPARTMENT DOES NOT BELIEVE THAT THAT RULING GOVERNS THE PRESENT SITUATION. HE STATES THAT IT IS FELT THAT THE CONVEYANCE OF THE LAND TO KENTUCKY AT 50 PERCENTUM OF THE FAIR VALUE, PROVIDED FOR BY STATUTE AND SUBJECT TO REVERSION, IS NOT A GRANT OF FEDERAL FUNDS; AND THAT THE PRICE PAID BY THE STATE, ACCORDING TO THIS STATUTORY FORMULA, IS THE COST TO THE STATE OF THE PROJECT AND, AS SUCH, IS REIMBURSABLE AT THE RATE OF 75 PERCENTUM.

AS NOTED IN THE DEPUTY ASSISTANT SECRETARY'S LETTER, OUR DECISION OF JULY 28, 1967, CONCERNS THE USE OF THE SAME "MATCHING MONEY" FOR FEDERAL GRANTS FROM TWO DIFFERENT FEDERAL AGENCIES, AS WELL AS THE MAKING OF TWO FEDERAL GRANTS, BOTH OF WHICH INCLUDED A PERCENTAGE OF THE COST OF THE SAME FACILITY. IN THAT DECISION WE HELD AS FOLLOWS--- QUOTING THE SYLLABUS:

A FEDERAL AVIATION ADMINISTRATION (FAA) GRANT TO THE CITY OF JUNEAU, ALASKA, INCIDENT TO THE CONSTRUCTION OF A SEWAGE SYSTEM WHICH INCLUDED THE PERCENTAGE OF COST PROVIDED BY A PUBLIC HEALTH SERVICE (PHS) GRANT FOR THE FACILITY, WHERE BOTH GRANTS WERE MATCHED BY THE STATE WITH THE SAME FUNDS, WAS MADE WITHOUT AUTHORITY AND IS WITHOUT LEGAL EFFECT, EVEN THOUGH THE FEDERAL AIRPORT ACT DOES NOT PROHIBIT THE GRANT, THE WATER POLLUTION CONTROL ACT UNDER WHICH THE PHS GRANT WAS MADE REQUIRING THE CITY TO PAY COSTS IN EXCESS OF THE GRANT. THEREFORE, TO PERMIT FAA TO MAKE A GRANT FOR THE SAME PROJECT WOULD REQUIRE THE UNITED STATES TO CONTRIBUTE MORE THAN THE AMOUNT OF THE PHS GRANT, THEREBY WAIVING ITS RIGHT TO HAVE THE GRANTEE COMPLETE THE PROJECT WITHOUT FURTHER COST TO THE UNITED STATES, AND WOULD NOT SATISFY THE DEFINITION IN THE FEDERAL AIRPORT ACT THAT "PROJECT COSTS" ARE COSTS "WHICH WOULD NOT HAVE BEEN INCURRED OTHERWISE.'

WE AGREE THAT THE RULING IN OUR DECISION OF JULY 28, 1967, DOES NOT APPLY TO THE INSTANT CASE, SINCE THE CONVEYANCE OF THE LAND TO THE STATE OF KENTUCKY AT 50 PERCENT OF THE FAIR VALUE, AS PROVIDED BY STATUTE, IS NOT A GRANT OF FEDERAL FUNDS. FURTHER, WE FIND NOTHING IN THE FEDERAL AID IN WILDLIFE RESTORATION ACT, AS AMENDED, WHICH WOULD PRECLUDE A STATE FROM BEING REIMBURSED 75 PERCENT OF THE COST OF A PROJECT APPROVED THEREUNDER BECAUSE LAND FOR THE PROJECT WAS PURCHASED FROM THE UNITED STATES AT LESS THAN ITS "FAIR VALUE.' THIS BEING SO, AND SINCE THE PRICE PAID BY THE STATE FOR THE LAND IN QUESTION IS THE COST TO THE STATE OF THE PROJECT, THE STATE MAY BE REIMBURSED 75 PERCENT OF SUCH COST IN ACCORDANCE WITH THE PROVISIONS OF THE FEDERAL AID IN WILDLIFE RESTORATION ACT OF 1937, AS AMENDED, IF OTHERWISE PROPER.

ACCORDINGLY, THE VOUCHER IN QUESTION MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.