B-241319, October 3, 1991, 71 Comp.Gen. 1

B-241319: Oct 3, 1991

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We conclude that since BPA is a federal agency. BPA asserted that the interdepartmental waiver doctrine does not apply to BPA since its operations are financed by user fees. Although our decisions on the doctrine have generally concerned claims for damages. We have long described the doctrine as applying to one government instrumentality paying rent to another. 16 Comp.Gen. 887 (1937) The doctrine is based on the concept that the property of instrumentalities of the government is not the property of the separate entities. BPA is clearly an instrumentality of the federal government. The office of the Administrator is an office in the Department of Energy under the jurisdiction and control of the Secretary. /3/ In addition.

B-241319, October 3, 1991, 71 Comp.Gen. 1

MISCELLANEOUS TOPICS - Federal Administrative/Legislative Matters - Administrative agencies - Interagency waiver - Property damages MISCELLANEOUS TOPICS - Federal Administrative/Legislative Matters - Administrative agencies - Interagency waiver - Rent DIGEST: The interdepartmental waiver doctrine prohibits the Bonneville Power Administration (BPA) from charging the National Weather Service (NWS) rent for its noninterfering use of a radio station site, but does not prohibit it from charging for the costs or damages resulting from such use.

Payment by National Weather Service to Bonneville Power Administration for Use of Microwave Radio Station Site:

The Department of Commerce (Commerce) requests an opinion on behalf of the National Weather Service (NWS) concerning the authority of the Bonneville Power Administration (BPA) to charge NWS for its noninterfering use of a radio station site to broadcast weather information to the general public. For the reasons stated below, we conclude that since BPA is a federal agency, the interdepartmental waiver doctrine generally applies to BPA and prohibits it from charging NWS, another federal agency, rent for its noninterfering use of real property. However, the doctrine does not prohibit BPA from charging NWS for the costs or damages resulting from such use since it would be inconsistent with BPA's statutory scheme for BPA's customers to pay for such costs and damages through an increase in rates.

BACKGROUND

The Bonneville Project Act, ch. 720, 50 Stat. 731 (1937) (codified at 16 U.S.C. Sec. 832-8321 (1988)), authorized the construction of the Bonneville Dam on the Columbia River and established BPA to build and operate transmission facilities and to market the power generated by the dam. At present, BPA maintains facilities throughout the Pacific Northwest. Since 1970, NWS has used BPA's microwave radio station site in West Portland, Oregon, to broadcast weather data to the general public. /1/ In November 1989, BPA agreed to continue the arrangement, but informed NWS that the annual fee for the use of the site would include a $2,500 rental charge for its use of the land and the two antennae on BPA's tower. The record does not identify any additional costs to BPA directly resulting from NWS' use of the radio station site.

Commerce informed BPA that NWS would not pay rent for the radio station site because the interdepartmental waiver doctrine bars interagency claims for the use of real property. In response, BPA asserted that the interdepartmental waiver doctrine does not apply to BPA since its operations are financed by user fees. Following its unsuccessful attempt to locate another broadcast cite, NWS agreed to obligate funds to pay all charges accrued from January 1, 1990, seek our opinion in this matter, and proceed in accordance with our decision. /2/ In reaction to Commerce's submission to our Office, BPA submitted its views to us on this matter.

DISCUSSION

The interdepartmental waiver doctrine prohibits a federal agency from paying for the use or repair of real property controlled by another federal agency, unless authorized by statute. 60 Comp.Gen. 406 (1981); 59 Comp.Gen. 93 (1979). Although our decisions on the doctrine have generally concerned claims for damages, we have long described the doctrine as applying to one government instrumentality paying rent to another. See, e.g., 20 Comp.Gen. 699 (1941); 16 Comp.Gen. 887 (1937) The doctrine is based on the concept that the property of instrumentalities of the government is not the property of the separate entities, but rather of the government as a single entity. 41 Comp.Gen. 235 (1961). Since there can be no reimbursement by the government to itself for the use or damage of its own property, one agency or instrumentality cannot pay another for using or damaging government property. 65 Comp.Gen. 464 (1986).

After reviewing the statutes governing BPA's operations, we conclude that the interdepartmental waiver doctrine generally applies to BPA. BPA is clearly an instrumentality of the federal government. Under section 2(a) of the Bonneville Project Act, 16 U.S.C. Sec. 832a(a), the office of the Administrator is an office in the Department of Energy under the jurisdiction and control of the Secretary. /3/ In addition, BPA is required to repair and replace its property with federal funds. The Federal Columbia River Transmission Act of 1974 (act), Pub.L. No. 93-454, 88 Stat. 1376 (1974) (codified at 16 U.S.C. Sec. 838-838k), established the Bonneville Power Administration Fund as a permanent appropriation to finance BPA's operations. Under section 11(a) of the act, 16 U.S.C. Sec. 838i(a), the Fund consists of all receipts and collections of the Administrator, such as user fees received from customers, proceeds derived from the Administrator's sale of bonds, any appropriations made by Congress, and certain funds transferred to the Fund when it was established. Section 11(b) of the act, 16 U.S.C. Sec. 838i(b), requires the Administrator of BPA to make expenditures from the Fund to carry out his duties, including operating, maintaining, and repairing the transmission system.

The statutes governing BPA's operations do not provide an exception to the interdepartmental waiver doctrine which would authorize BPA to charge another federal agency rent for its noninterfering use of real property. In this regard, we have recognized exceptions to the interdepartmental waiver doctrine where Congress has, by statute, expressly required an interagency activity to operate on a self sustaining basis by recovering all costs from using agencies. 65 Comp.Gen. at 465. However, the pertinent statutes, including those cited by BPA, do not meet this criteria. /4/ Moreover, allowing BPA to charge NWS rent when NWS' use is at no cost to BPA would in effect subsidize BPA's customers in a manner inconsistent with the statutory requirement that customers pay for BPA's services at rates that allow BPA to recover the costs of the services provided. E.g., 16 U.S.C. Sec. 832f; 16 U.S.C. Sec. 838g.

On the other hand, we have no objection to BPA charging, and NWS and other federal agencies paying, for costs or damages resulting from their use of BPA's property. /5/ We find that BPA's statutory financing scheme provides an exception to BPA from the interdepartmental waiver doctrine to the extent of costs of damages to real property. Those statutes contemplate BPA's customers paying for the services provided at rates the Administrator determines with regard to the cost of producing and transmitting electric energy. They do not contemplate BPA's customers paying rates which cover costs generated by federal agencies in conducting activities wholly unrelated to the services BPA is charged with providing its customers. In this respect, BPA's financing scheme is similar to that of the San Carlos Irrigation Project, the subject of our decision at 41 Comp.Gen. 235 in which we concluded that the intergovernmental waiver doctrine did not preclude the Interior Department's claim against the Department of the Air Force. We explained that the beneficiaries of the Project, the Pima Indians, rather than the government, would bear the cost of the damage if the claim was disallowed. Like the beneficiaries of the San Carlos Irrigation Project, BPA's customers provide the only funds available to cover the costs or damages associated with a federal agency's use of BPA property and they rather than the government would bear the cost of repair if a claim were disallowed. Accordingly, the interdepartmental waiver doctrine does not bar BPA from charging NWS, or any other federal agency, for actual costs resulting from their using the real property under BPA's control.

CONCLUSION

The interdepartmental waiver doctrine prohibits BPA from charging agencies rent for their noninterfering use of BPA's real property, but does not prohibit it from recovering costs or damages resulting from such use. Therefore, BPA may not recover from NWS the rental charge for NWS' use of the radio station site at issue here.

/1/ NWS initially obtained a "license" to use the site from BPA on June 5, 1970. NWS and BPA signed a second agreement on July 26, 1978, and revised that agreement on December 5, 1979. Under the agreement of December 5, 1979, NWS was to pay BPA $469 annually for the use of the tower, land, emergency and commercial power, and site development. The agreement further provided that it would be subject to review and revision every 10 years.

/2/ We understand that NWS obtained another site from which to broadcast after the Department of Commerce submitted its request for our decision. However, the Department of Commerce seeks our decision to settle its disagreement with BPA relating to the period during which NWS used the site. Section 302(a) of the Department of Energy Organization Act, Pub.L. No. 95-91, 91 Stat. 565, 578 (1977) (codified at 42 U.S.C. Sec. 7152(a) (1988)), transferred the functions of the Secretary of Interior with respect to BPA to the Secretary of Energy and placed BPA within the Department of Energy as a distinct organizational entity.

/3/ BPA asserts, for example, that sections 2(e) and (f) of the Bonneville Project Act, 16 U.S.C. Sec. 832a(e) and (f), authorize it to charge NWS for its use of the radio station site. By their terms, these provisions are not exceptions to the interdepartmental waiver doctrine, and there is no indication in their legislative history that Congress intended to authorize interagency claims. In addition, BPA suggests that statutes governing the administration of government buildings constitute exceptions to the interdepartmental waiver doctrine. We need not address this issue since NWS' use of the property at issue does not fall within the scope of such statutes. /4/ Under its agreement with BPA, NWS assumed the cost of ensuring that its use did not interfere with BPA's use as well as the cost of any damage. NWS raised no objection to these charges to BPA and did not discuss them in its request for our decision. In previous decisions, the government sought approval to make improvements to property it had leased. See, e.g., 69 Comp.Gen. 673 (1990); 65 Comp.Gen. 847 (1986). In these cases the government's interest in the improvements was protected through its contractual relationship with the owner of the property.

/5/ By decision of today (B-243180, 71 Comp.Gen. ***), we are reaching a similar conclusion with respect to the travel expenses of the spouses of Federal Aviation Administration employees for attending security training before permanent overseas assignment.