B-193601, JUL 3, 1979

B-193601: Jul 3, 1979

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DIGEST: APPROPRIATED FUNDS MAY NOT BE USED TO PURCHASE "HOSPITALITY KITS" SINCE EXPENDITURE IS PROHIBITED BY 10 U.S.C. 2387. THE ITEMS LISTED ON THE VOUCHER ARE KITCHEN UTENSILS WHICH THE NAVY STATES WERE ACQUIRED TO ESTABLISH TWO NAVAL LEGAL SERVICE OFFICE (NLSO) "HOSPITALITY KITS" AT THE GUAM NAVAL BASE FOR INCOMING OR DEPARTING OFFICER AND ENLISTED PERSONNEL. BECAUSE THERE ARE NO OTHER MEANS AVAILABLE TO PROVIDE THIS ASSISTANCE AND SERVICE TO THESE PERSONNEL AND THEIR FAMILIES. THE KITS ARE TO BE LOANED TO THESE PERSONNEL ON A CONTROLLED USE BASIS. WILL REMAIN THE PROPERTY OF THE NAVY. THE NLSO SAYS THAT: "IN THE NEXT 10 MONTH PERIOD THERE WILL BE A TURNOVER OF ELEVEN ASSIGNED INDIVIDUALS AND THEIR FAMILIES WITH REPLACEMENTS TO BE DESIGNATED.

B-193601, JUL 3, 1979

DIGEST: APPROPRIATED FUNDS MAY NOT BE USED TO PURCHASE "HOSPITALITY KITS" SINCE EXPENDITURE IS PROHIBITED BY 10 U.S.C. 2387, AS IMPLEMENTED BY DOD INSTRUCTION.

PURCHASE OF "HOSPITALITY KITS" BY THE NAVAL LEGAL SERVICE OFFICE:

THE U.S. NAVY FINANCE OFFICE, SAN FRANCISCO, CALIFORNIA, HAS REQUESTED AN ADVANCE DECISION CONCERNING THE PROPRIETY OF CERTIFYING FOR PAYMENT FROM APPROPRIATED FUNDS A VOUCHER IN FAVOR OF THE NAVY EXCHANGE FOR $98.40.

THE ITEMS LISTED ON THE VOUCHER ARE KITCHEN UTENSILS WHICH THE NAVY STATES WERE ACQUIRED TO ESTABLISH TWO NAVAL LEGAL SERVICE OFFICE (NLSO) "HOSPITALITY KITS" AT THE GUAM NAVAL BASE FOR INCOMING OR DEPARTING OFFICER AND ENLISTED PERSONNEL, BECAUSE THERE ARE NO OTHER MEANS AVAILABLE TO PROVIDE THIS ASSISTANCE AND SERVICE TO THESE PERSONNEL AND THEIR FAMILIES. THE KITS ARE TO BE LOANED TO THESE PERSONNEL ON A CONTROLLED USE BASIS, AND WILL REMAIN THE PROPERTY OF THE NAVY. AS FURTHER JUSTIFICATION FOR THIS PURCHASE, THE NLSO SAYS THAT:

"IN THE NEXT 10 MONTH PERIOD THERE WILL BE A TURNOVER OF ELEVEN ASSIGNED INDIVIDUALS AND THEIR FAMILIES WITH REPLACEMENTS TO BE DESIGNATED. THE GENERAL AVAILABILITY OF HOUSING FOR NEW ARRIVALS RESULTS IN RAPID TERMINATION OF T.L.A. (TEMPORARY LODGING ALLOWANCE) LEAVING THOSE INDIVIDUALS WITH NO READY MEANS SHORT OF EXPENSIVE PURCHASES OF ITEMS ALREADY OWNED AND IN THEIR HHG (HOUSEHOLD GOODS). DEPARTING PERSONNEL ARE SEVERELY LIMITED IN ENTITLEMENT TO TLA AND ARE FREQUENTLY LEFT TO RESORT TO BEGGING AND BORROWING MINIMAL ESSENTIAL ITEMS LIKE THOSE CONTAINED ON THIS VOUCHER."

THE NLSO PROPOSES PAYMENT OF THIS AMOUNT OUT OF ITS OPERATION AND MAINTENANCE FUND.

UNDER 10 U.S.C. SEC. 2387 (1976) DEPARTMENT OF DEFENSE (DOD) APPROPRIATIONS MAY NOT BE USED TO SUPPLY OR REPLACE TABLE LINEN, DISHES, GLASSWARE, SILVER, AND KITCHEN UTENSILS FOR USE IN THE RESIDENCES ON SHORE, OR QUARTERS ON SHORE, OF OFFICERS OF THE ARMED FORCES, EXCEPT "UNDER REGULATIONS APPROVED BY THE SECRETARY OF DEFENSE AND PROVIDING FOR UNIFORM PRACTICES AMONG THE ARMED FORCES UNDER HIS JURISDICTION." REGULATIONS IMPLEMENTING THIS STATUTE ARE CONTAINED IN DOD INSTRUCTION NO. 4165.43, DATED MARCH 27, 1975. THIS INSTRUCTION, ENTITLED "PROVISION OF FURNISHINGS IN PERSONNEL QUARTERS," IS APPLICABLE TO "ALL FURNISHINGS FOR GOVERNMENT QUARTERS, WHEREVER LOCATED AND HOWEVER OBTAINED, AND FOR ALL NON-GOVERNMENT *** QUARTERS."

PARAGRAPH VA) OF THE INSTRUCTION REPEATS THE PROHIBITION CONTAINED IN 10 U.S.C. SEC. 2387 (1976), EXEMPTING ONLY INCUMBENTS OF CERTAIN SPECIAL COMMAND POSITIONS, NOT RELEVANT HERE. IN ADDITION, FURNISHINGS ALLOWED UNDER THE INSTRUCTION, AS DEFINED IN AN APPENDIX THEREOF, SPECIFICALLY EXCLUDES "*** HOUSEHOLD GOODS, SUCH AS LINENS, CUTLERY, SILVERWARE, DISHES AND KITCHEN UTENSILS ***."

IT MAY BE ARGUED THAT THE STATUTE AND THE INSTRUCTION APPEAR TO APPLY ONLY TO THE INCLUSION OF KITCHEN UTENSILS IN THE FURNISHINGS OF THE QUARTERS, AND NOT TO THE LOAN OF SUCH ITEMS TO PERSONNEL AS IS THE METHOD CONTEMPLATED BY NLSO FOR DISTRIBUTING THE KITS. HOWEVER, WE BELIEVE THAT THE INSTRUCTION WAS INTENDED TO PROHIBIT THIS PROCEDURE AS WELL. ADDITION TO LISTING MAXIMUM ALLOWANCES OF FURNISHINGS TO BE PROVIDED FOR VARIOUS QUARTERS, THE INSTRUCTION ALSO EXPRESSLY PROVIDES FOR THE LOAN OF FURNISHINGS DIRECTLY TO PERSONNEL. PARAGRAPH IVC) PROVIDES THAT: "*** FURNISHINGS MAY ALSO BE PROVIDED ON A TEMPORARY LOAN BASIS (OUTSIDE THE CONTINENTAL UNITED STATES) PENDING RECEIPT OF IN TRANSIT PERSONALLY OWNED FURNIGHINGS WHEN DETERMINED ADVANTAGEOUS TO THE GOVERNMENT ***." THIS IS ESSENTIALLY THE ARRANGEMENT PROPOSED BY NLSO FOR DISTRIBUTING THE KITS ON LOAN. THIS PROVISION DOES NOT PROVIDE AUTHORITY FOR DOING SO BECAUSE, AS NOTED ABOVE, FURNISHINGS IS DEFINED TO EXCLUDE THE ITEMS CONTAINED IN THE KIT.

ACCORDINGLY, THE VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT AND THE COPY OF IT WILL BE RETAINED HERE.