B-173282, SEP 15, 1971, 51 COMP GEN 167

B-173282: Sep 15, 1971

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PUBLIC UTILITIES - RELOCATION - GOVERNMENT LIABILITY THE REQUEST OF THE POTOMAC ELECTRIC POWER COMPANY (PEPCO) FOR REIMBURSEMENT OF FACILITIES RELOCATION COSTS INCURRED INCIDENT TO THE CONSTRUCTION OF THE LIBRARY OF CONGRESS JAMES MADISON MEMORIAL BUILDING WAS PROPERLY DENIED IN THE ABSENCE OF STATUTORY AUTHORITY SIMILAR TO THAT UNDER WHICH PEPCO IS BEING REIMBURSED FOR RELOCATIONS OF THEIR FACILITIES IN CONNECTION WITH THE METRO PROGRAM. 1971: REFERENCE IS MADE TO YOUR LETTER OF JUNE 16. IN THAT CASE WE HELD THAT THE APPROPRIATION MADE FOR THE CONSTRUCTION OF UNDERGROUND DUCT LINES FROM THE CAPITOL POWER PLANT TO NEW PUBLIC BUILDINGS WAS NOT AVAILABLE FOR THE PAYMENT OF THE COSTS OF RELOCATING PUBLIC UTILITIES.

B-173282, SEP 15, 1971, 51 COMP GEN 167

PUBLIC UTILITIES - RELOCATION - GOVERNMENT LIABILITY THE REQUEST OF THE POTOMAC ELECTRIC POWER COMPANY (PEPCO) FOR REIMBURSEMENT OF FACILITIES RELOCATION COSTS INCURRED INCIDENT TO THE CONSTRUCTION OF THE LIBRARY OF CONGRESS JAMES MADISON MEMORIAL BUILDING WAS PROPERLY DENIED IN THE ABSENCE OF STATUTORY AUTHORITY SIMILAR TO THAT UNDER WHICH PEPCO IS BEING REIMBURSED FOR RELOCATIONS OF THEIR FACILITIES IN CONNECTION WITH THE METRO PROGRAM, AND NEITHER THE APPROPRIATION MEASURES FOR THE LIBRARY OF CONGRESS BUILDING NOR ANY OTHER AUTHORITY PROVIDES FOR THE PAYMENT OF THE UTILITY LOCATION COSTS BY THE ARCHITECT OF THE CAPITOL.

TO THE ARCHITECT OF THE CAPITOL, SEPTEMBER 15, 1971:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 16, 1971, CONCERNING THE REQUEST OF THE POTOMAC ELECTRIC POWER COMPANY (PEPCO) FOR REIMBURSEMENT OF FACILITIES RELOCATION COSTS INCURRED INCIDENT TO THE CONSTRUCTION OF THE LIBRARY OF CONGRESS JAMES MADISON MEMORIAL BUILDING.

YOU STATE IN YOUR LETTER THAT YOU DENIED PEPCO'S REQUEST BASED ON OUR DECISION 10 COMP. GEN. 331 (1931). IN THAT CASE WE HELD THAT THE APPROPRIATION MADE FOR THE CONSTRUCTION OF UNDERGROUND DUCT LINES FROM THE CAPITOL POWER PLANT TO NEW PUBLIC BUILDINGS WAS NOT AVAILABLE FOR THE PAYMENT OF THE COSTS OF RELOCATING PUBLIC UTILITIES. THE CASE THEN WENT ON TO STATE:

RIGHTS OF WAY OR FRANCHISES GRANTED *** TO PUBLIC UTILITY CORPORATIONS, IN PUBLIC STREETS, ETC., TO OPERATE THEIR BUSINESS ARE USUALLY COUPLED WITH RESERVATIONS THAT THE PUBLIC UTILITY COMPANY WILL, UPON DEMAND OF THE GRANTING AUTHORITY, VACATE THE STREETS, ETC., OR RELOCATE OR DIVERT ITS CONDUITS, LINES, ETC., TO MEET THE NEEDS OF THE GRANTING AUTHORITY AS THEY ARISE. IT IS UNDERSTOOD THAT THE FRANCHISES OF PUBLIC UTILITY COMPANIES IN THE DISTRICT OF COLUMBIA ARE GRANTED ON SUCH A BASIS AND THAT WHEN THE NEED OF THE FEDERAL GOVERNMENT OR THE DISTRICT OF COLUMBIA GOVERNMENT SO REQUIRE IN CONNECTION WITH THE CONSTRUCTION OF PUBLIC BUILDINGS, ETC., SUCH PUBLIC UTILITY COMPANIES ARE UNDER OBLIGATION TO REMOVE, DIVERT, OR RELOCATE THEIR LINES, CONDUITS, ETC., WITHOUT COST TO THE FEDERAL GOVERNMENT OR THE DISTRICT OF COLUMBIA.

IN ANOTHER LINE OF CASES WE HAVE CONSISTENTLY HELD THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, APPROPRIATIONS FOR THE CONSTRUCTION OF ROADS AND TRAILS COULD NOT BE USED FOR THE PURPOSE OF PAYING THE COST OF REMOVING AND RELOCATING PUBLIC UTILITY LINES ON PUBLIC PROPERTY WHEN THEY INTERFERED WITH THE PARAMOUNT RIGHT OF THE UNITED STATES TO USE THE LANDS. SEE 44 COMP. GEN. 59 (1964) AND CASES CITED THEREIN.

PEPCO ALLEGES THAT OUR RULINGS HAVE NOT BEEN CONSISTENTLY APPLIED AND CITES THE FEDERALLY ASSISTED METRO PROGRAM IN WHICH THEY ARE BEING REIMBURSED FOR RELOCATIONS OF THEIR FACILITIES AND THE POLICY OF THE BUREAU OF PUBLIC ROADS. IN THE METRO PROGRAM, HOWEVER, THERE IS SPECIFIC STATUTORY AUTHORITY FOR SUCH REIMBURSEMENT. (SECTION 68 OF THE ACT OF NOVEMBER 6, 1966, PUBLIC LAW 89-774, 80 STAT. 1347.) INSOFAR AS UTILITY RELOCATION PAYMENTS BY THE BUREAU OF PUBLIC ROADS ARE CONCERNED SEE 23 U.S.C. 123. THE APPROPRIATION MEASURES FOR THE LIBRARY OF CONGRESS BUILDING CONTAIN NO SIMILAR AUTHORITY, NOR ARE WE AWARE OF ANY OTHER LAW AUTHORIZING PAYMENT BY THE ARCHITECT OF THE CAPITOL OF THE TYPE OF COSTS INVOLVED HERE.

UNDER THESE CIRCUMSTANCES WE FIND THAT YOU WERE CORRECT IN DENYING PEPCO'S REQUEST FOR REIMBURSEMENT AND REQUIRING THAT IT PERFORM THE NECESSARY RELOCATION WORK WITHOUT COST TO THE GOVERNMENT.