B-180752, JUN 12, 1974

B-180752: Jun 12, 1974

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REIMBURSEMENT MAY NOT BE ALLOWED BECAUSE SUMMARIZATION OF SERVICES PERFORMED DOES NOT GIVE COST OF EACH SERVICE AND IT IS NECESSARY TO STATE THE COSTS OF THE ALLOWABLE ITEMS ENUMERATED IN 2-6.2 OF FPMR 101-7 IN ORDER FOR REIMBURSEMENT TO BE ALLOWED. 2. AUTHORIZED CERTIFYING OFFICER MAY REFUSE TO CERTIFY SUCH EXPENSE FOR PAYMENT SINCE 31 U.S.C. 82D PROVIDES THAT AUTHORIZED CERTIFYING OFFICER MAY REQUEST ADVANCE DECISION FROM THE COMPTROLLER GENERAL IN A DOUBTFUL CASE AND HE IS RESPONSIBLE FOR AN ERRONEOUS PAYMENT WHEN HE DOES NOT EXERCISE SUCH RIGHT. 3. ALTHOUGH AUTHORIZED CERTIFYING OFFICER BELIEVES THAT A CLAIM DISAPPROVED BY AN APPROPRIATE ADMINISTRATIVE OFFICIAL IS ALLOWABLE. HE SHOULD NOT CERTIFY THE CLAIM FOR PAYMENT SINCE THE PROPER PROCEDURE IN SUCH A CASE IS TO SUBMIT THE CLAIM TO THE GENERAL ACCOUNTING OFFICE FOR DIRECT SETTLEMENT.

B-180752, JUN 12, 1974

1. EMPLOYEE TRANSFERRED TO OXFORD, WISCONSIN, FROM MILAN, MICHIGAN, CLAIMS REIMBURSEMENT FOR LEGAL FEES INCIDENT TO THE SALE OF HIS RESIDENCE COVERING BOTH ALLOWABLE ITEMS AND SERVICES OF AN ADVISORY NATURE. REIMBURSEMENT MAY NOT BE ALLOWED BECAUSE SUMMARIZATION OF SERVICES PERFORMED DOES NOT GIVE COST OF EACH SERVICE AND IT IS NECESSARY TO STATE THE COSTS OF THE ALLOWABLE ITEMS ENUMERATED IN 2-6.2 OF FPMR 101-7 IN ORDER FOR REIMBURSEMENT TO BE ALLOWED. 2. ALTHOUGH APPROPRIATE ADMINISTRATIVE OFFICIAL APPROVES RELOCATION EXPENSE OF TRANSFERRED EMPLOYEE, AUTHORIZED CERTIFYING OFFICER MAY REFUSE TO CERTIFY SUCH EXPENSE FOR PAYMENT SINCE 31 U.S.C. 82D PROVIDES THAT AUTHORIZED CERTIFYING OFFICER MAY REQUEST ADVANCE DECISION FROM THE COMPTROLLER GENERAL IN A DOUBTFUL CASE AND HE IS RESPONSIBLE FOR AN ERRONEOUS PAYMENT WHEN HE DOES NOT EXERCISE SUCH RIGHT. 3. ALTHOUGH AUTHORIZED CERTIFYING OFFICER BELIEVES THAT A CLAIM DISAPPROVED BY AN APPROPRIATE ADMINISTRATIVE OFFICIAL IS ALLOWABLE, HE SHOULD NOT CERTIFY THE CLAIM FOR PAYMENT SINCE THE PROPER PROCEDURE IN SUCH A CASE IS TO SUBMIT THE CLAIM TO THE GENERAL ACCOUNTING OFFICE FOR DIRECT SETTLEMENT.

TO MR. R. W. MCGHEE:

THIS ACTION IS IN RESPONSE TO LETTER DATED FEBRUARY 25, 1974, FROM MR. R. W. MCGHEE, AUTHORIZED CERTIFYING OFFICER, BUREAU OF PRISONS, UNITED STATES DEPARTMENT OF JUSTICE, REQUESTING AN ADVANCE DECISION AS TO WHETHER A RECLAIM VOUCHER IN THE AMOUNT OF $507.50, WHICH REPRESENTS ATTORNEY FEES, IN FAVOR OF MR. TERRANCE R. HANLEY, AN EMPLOYEE OF THE BUREAU OF PRISONS, UNITED STATES DEPARTMENT OF JUSTICE, MAY BE CERTIFIED FOR PAYMENT.

THE RECORD INDICATES THAT UNDER TRAVEL AUTHORIZATION NO. 124-23-4, DATED SEPTEMBER 28, 1973, MR. HANLEY EFFECTED A CHANGE OF OFFICIAL DUTY STATION FROM MILAN, MICHIGAN, TO OXFORD, WISCONSIN. THE ATTORNEY FEES WERE INCURRED INCIDENT TO THE SALE OF MR. HANLEY'S FORMER RESIDENCE IN MILAN, MICHIGAN. THE FIRM OF CREAL AND HURBIS WAS RETAINED BY MR. HANLEY TO REPRESENT HIM DURING THE SALE OF HIS RESIDENCE. THE APPROPRIATE OFFICIAL IN MILAN DETERMINED THAT THE LEGAL FEES WERE PAYABLE BUT THAT A TERMITE INSPECTION FEE OF $25 WAS NOT PAYABLE. THE CERTIFYING OFFICER DETERMINED THAT HE COULD NOT CERTIFY THE PAYMENT OF THE LEGAL FEES BUT CERTIFIED THE TERMITE INSPECTION FEE FOR PAYMENT. MR. HANLEY RECLAIMS THE AMOUNT OF $507.50 FOR LEGAL FEES WHICH WAS DISALLOWED ON HIS ORIGINAL VOUCHER. THE CERTIFYING OFFICER REQUESTED OUR DECISION AS TO WHETHER HE MAY DISALLOW EXPENSES APPROVED BY AN APPROPRIATE ADMINISTRATIVE OFFICER WHEN HE CANNOT, IN GOOD FAITH, APPROVE SUCH EXPENSES. HE ALSO ASKS WHETHER HE MAY CERTIFY THE LEGAL FEES FOR PAYMENT.

IT HAS BEEN HELD THAT A CERTIFYING OFFICER WHO ACCEPTS THE ADVICE AND INSTRUCTION OF AN ADMINISTRATIVE OFFICER CONCERNING A DOUBTFUL PAYMENT INSTEAD OF EXERCISING HIS RIGHT TO OBTAIN A DECISION BY THE COMPTROLLER GENERAL, AS PROVIDED BY SECTION 3 OF THE ACT OF DECEMBER 29, 1941, 31 U.S.C. 82D, MAY NOT BE RELIEVED OF RESPONSIBILITY FOR MAKING AN ERRONEOUS PAYMENT. 31 COMP. GEN. 653 (1952). THEREFORE, IT WAS PROPER FOR THE CERTIFYING OFFICER TO WITHHOLD CERTIFICATION FOR PAYMENT OF THE LEGAL FEES AND SUBMIT THE QUESTION OF THE PROPRIETY OF THEIR PAYMENT FOR DECISION. REGARDING THE PROPRIETY OF THE PAYMENT OF THE TERMITE INSPECTION FEE, WE POINT OUT THAT WHEN AN ADMINISTRATIVE EXCEPTION IS TAKEN TO A CLAIM, THE PROPER PROCEDURE IS TO SUBMIT THE CLAIM TO THE GENERAL ACCOUNTING OFFICE FOR DIRECT SETTLEMENT. SEE 33 COMP. GEN. 20 (1953).

FEDERAL PROPERTY MANAGEMENT REGULATIONS (FPMR) 101-7, EFFECTIVE MAY 1, 1973, SECTION 2-6.2C WHICH SUPERSEDES OFFICE OF MANAGEMENT AND BUDGET CIRCULAR (OMB) NO. A-56, CITED BY THE CERTIFYING OFFICER, PROVIDES WITH REGARD TO REIMBURSEMENT OF LEGAL EXPENSES INCIDENT TO THE SALE OR PURCHASE OF A RESIDENCE AS FOLLOWS:

"C. LEGAL AND RELATED EXPENSES. TO THE EXTENT SUCH COSTS HAVE NOT BEEN INCLUDED IN BROKERS' OR SIMILAR SERVICES FOR WHICH REIMBURSEMENT IS CLAIMED UNDER OTHER CATEGORIES, THE FOLLOWING EXPENSES ARE REIMBURSABLE WITH RESPECT TO THE SALE AND PURCHASE OF RESIDENCES IF THEY ARE CUSTOMARILY PAID BY THE SELLER OF A RESIDENCE AT THE OLD OFFICIAL STATION OR IF CUSTOMARILY PAID BY THE PURCHASER OF A RESIDENCE AT THE NEW OFFICIAL STATION, TO THE EXTENT THEY DO NOT EXCEED AMOUNTS CUSTOMARILY CHARGED IN THE LOCALITY OF THE RESIDENCE: COSTS OF (1) SEARCHING TITLE, PREPARING ABSTRACT, AND LEGAL FEES FOR A TITLE OPINION OR (2) WHERE CUSTOMARILY FURNISHED BY THE SELLER, THE COST OF A TITLE INSURANCE POLICY; COSTS OF PREPARING CONVEYANCES, OTHER INSTRUMENTS, AND CONTRACTS AND RELATED NOTARY FEES AND RECORDING FEES; COSTS OF MAKING SURVEYS, PREPARING DRAWINGS OR PLATS WHEN REQUIRED FOR LEGAL OR FINANCING PURPOSES; AND SIMILAR EXPENSES. COSTS OF LITIGATION ARE NOT REIMBURSABLE."

INCLUDED IN THE RECORD IS A SUMMARIZATION OF THE SERVICES PERFORMED BY CREAL AND HURBIS WHICH INDICATES THAT, ALTHOUGH A WARRANTY DEED AND OTHER DOCUMENTS WERE PREPARED, THE MAJORITY OF SERVICES CONSISTED OF OFFICE AND TELEPHONE CONSULTATIONS AND CONFERENCES WITH MR. HANLEY AND OTHERS. HAS BEEN HELD THAT LEGAL SERVICES OF AN ADVISORY NATURE ARE NOT REIMBURSABLE, B-174644, APRIL 20, 1972. THE CHARGES FOR THE CONSULTATIONS AND CONFERENCES APPEAR TO BE OF AN ADVISORY NATURE AND, THEREFORE, ARE NOT ALLOWABLE. IT HAS ALSO BEEN HELD THAT WHERE A LEGAL FEE INCLUDES AMOUNTS FOR LEGAL REPRESENTATION AND COUNSELING, THE FULL AMOUNT OF THE FEE IS NOT REIMBURSABLE. ONLY THOSE PARTS OF AN ATTORNEY'S FEE THAT REPRESENT SERVICES OF THE TYPES ENUMERATED IN 4.2C OF THE OMB CIRCULAR, NOW SECTION 2-6.2C, FPMR 101-7, ARE REIMBURSABLE. B-169621, JUNE 25, 1970.

THE SUMMARIZATION OF SERVICES PERFORMED DOES NOT GIVE A BREAKDOWN OF THE COSTS FOR THE VARIOUS SERVICES. ACCORDINGLY, SINCE THE PAYMENT OF FEES COVERED ADVISORY SERVICES AND THERE IS NO ITEMIZATION OF ITEMS THAT ARE ALLOWABLE NO PART OF THE $507.50 CLAIMED MAY BE CERTIFIED FOR PAYMENT.

WITH RESPECT TO THE CLAIM FOR THE $25 TERMITE INSPECTION FEE, IT HAS BEEN HELD THAT A TERMITE INSPECTION FEE, IF CUSTOMARILY PAID BY THE SELLER OF A RESIDENCE, IS REIMBURSABLE UNDER SECTION 4 OF OMB CIRCULAR NO. A-56, NOW SECTION 2-6.2 OF FPMR 101-7. SEE B-163801, MAY 1, 1968, AND B-175918, JUNE 15, 1972. OUR OFFICE HAS BEEN INFORMALLY ADVISED THAT THE TERMITE INSPECTION FEE IS CUSTOMARILY PAID BY THE SELLER IN THE AREA WHERE MR. HANLEY'S FORMER RESIDENCE WAS SOLD. THEREFORE, HE IS ENTITLED TO REIMBURSEMENT FOR THE TERMITE INSPECTION FEE.