B-40426, MARCH 7, 1944, 23 COMP. GEN. 652

B-40426: Mar 7, 1944

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PURSUANT TO THE SOIL CONSERVATION ACT OF 1935 ENTERS INTO A COOPERATIVE AGREEMENT WITH A STATE AGENCY WHEREBY THE EXPENSE OF A PROJECT IS TO BE SHARED BY THE PARTIES. THE STATE AGENCY DOES NOT HAVE THE FACILITIES TO PERFORM ITS SHARE OF THE WORK DIRECTLY AND. IS UNABLE TO ADVANCE ITS SHARE OF THE MONEY UNTIL AFTER THE WORK IS PERFORMED. THE MAJOR PART OF THIS COOPERATIVE WORK IS WITH THE AGENCIES ORGANIZED UNDER STATE LAWS SUCH AS SOIL CONSERVATION DISTRICTS. THE FEDERAL AND STATE COOPERATING AGENCIES HAVE EACH CUSTOMARILY DIRECTLY PERFORMED ITS AGREED PORTION OF THE WORK. DIFFICULTIES IN CONTINUING TO FOLLOW THIS PROCEDURE IN SOME CASES ARE NOW ARISING. IT IS PROPOSED. THERE IS NOW PRESENTED THE QUESTION AS TO WHETHER OR NOT SUCH REIMBURSEMENTS.

B-40426, MARCH 7, 1944, 23 COMP. GEN. 652

APPROPRIATIONS - REIMBURSEMENTS UNDER COOPERATIVE SOIL CONSERVATION AGREEMENTS WHERE THE SOIL CONSERVATION SERVICE, PURSUANT TO THE SOIL CONSERVATION ACT OF 1935 ENTERS INTO A COOPERATIVE AGREEMENT WITH A STATE AGENCY WHEREBY THE EXPENSE OF A PROJECT IS TO BE SHARED BY THE PARTIES, BUT THE STATE AGENCY DOES NOT HAVE THE FACILITIES TO PERFORM ITS SHARE OF THE WORK DIRECTLY AND, DUE TO PROHIBITING LAWS, REGULATIONS, OR POLICIES, IS UNABLE TO ADVANCE ITS SHARE OF THE MONEY UNTIL AFTER THE WORK IS PERFORMED, THE AMOUNT EXPENDED BY THE SOIL CONSERVATION SERVICE AS THE COOPERATING AGENCY'S SHARE MAY BE CONSIDERED AS A TENTATIVE CHARGE AGAINST THE APPROPRIATION AND THE AMOUNT RECEIVED IN REIMBURSEMENT THEREOF REGARDED AS A REPAYMENT TO THE APPROPRIATION; ANY AMOUNT REIMBURSED IN EXCESS OF THE AMOUNT EXPENDED SHOULD BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, WAR FOOD ADMINISTRATION, MARCH 7, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 28, 1944, AS FOLLOWS:

A PROBLEM HAS ARISEN IN CONNECTION WITH THE ACTIVITIES BEING CARRIED ON BY THE SOIL CONSERVATION SERVICE UNDER AUTHORITY OF THE ACT OF APRIL 27, 1935 (16 U.S.C. 590 A, B, C, D, E, F).

THE OBJECTIVES OF SOIL AND MOISTURE CONSERVATION AND SOUND LAND USE CAN BE REALIZED MOST EFFECTIVELY AND ECONOMICALLY BY THE COOPERATIVE EFFORTS OF THE FEDERAL GOVERNMENT AND THE VARIOUS AGENCIES AND INDIVIDUALS HAVING THESE SAME OBJECTIVES.

THE MAJOR PART OF THIS COOPERATIVE WORK IS WITH THE AGENCIES ORGANIZED UNDER STATE LAWS SUCH AS SOIL CONSERVATION DISTRICTS, IRRIGATION DISTRICTS, AND UNIVERSITIES. UNDER THE AGREED ARRANGEMENTS, THE FEDERAL AND STATE COOPERATING AGENCIES HAVE EACH CUSTOMARILY DIRECTLY PERFORMED ITS AGREED PORTION OF THE WORK, AND MADE DIRECT EXPENDITURE OF ITS OWN FUNDS AND AS A MATTER OF GENERAL WORKING POLICY THIS HAS BEEN ADMINISTRATIVELY CONSIDERED DESIRABLE. HOWEVER, DIFFICULTIES IN CONTINUING TO FOLLOW THIS PROCEDURE IN SOME CASES ARE NOW ARISING; THE PRIME ONE BEING THE STATE AGENCY'S LACK OF FACILITIES TO PERFORM DIRECTLY ITS DESIRED PART OF THE UNDERTAKING. IT IS PROPOSED, IN LIEU THEREOF, THAT WHEN NECESSARY THE ARRANGEMENTS NOW PROVIDE FOR THE SOIL CONSERVATION SERVICE TO BE REIMBURSED BY THE COOPERATOR FOR THE COST OF FURNISHING PERFORMING CERTAIN ITEMS AS MAY BE AGREED UPON INCIDENT TO THE COOPERATIVE UNDERTAKING.

THERE IS NOW PRESENTED THE QUESTION AS TO WHETHER OR NOT SUCH REIMBURSEMENTS, IF MADE, COULD PROPERLY BE CREDITED TO THE APPROPRIATION BEARING THE ORIGINAL COST OF THE AGREED UPON ITEMS, OR WOULD IT BE REQUIRED THAT THE REMITTANCES BE DEPOSITED AS MISCELLANEOUS RECEIPTS IN ACCORDANCE WITH SECTION 3617, REVISED STATUTES.

THE SECRETARY OF AGRICULTURE IS AUTHORIZED (16 U.S.C. 590A) * * * (3) " TO COOPERATE OR ENTER INTO AGREEMENTS WITH, OR TO FURNISH FINANCIAL OR OTHER AID TO, ANY AGENCY, GOVERNMENTAL OR OTHERWISE, OR ANY PERSON, SUBJECT TO SUCH CONDITIONS, AS HE MAY DEEM NECESSARY, FOR THE PURPOSES OF SECTIONS 590A-590H, 590I, 590J-590Q OF THIS TITLE; AND" * * *

THERE IS ALSO PROVIDED (16 U.S.C. 590C) " AS A CONDITION TO THE EXTENDING OF ANY BENEFITS UNDER SECTIONS 590A-590H, 590I, 590J-590Q OF THIS TITLE TO ANY LANDS NOT OWNED OR CONTROLLED BY THE UNITED STATES OR ANY OF ITS AGENCIES, THE SECRETARY OF AGRICULTURE MAY, INSOFAR AS HE MAY DEEM NECESSARY FOR THE PURPOSES OF SECTIONS 590A-590H, 5901, 590J-590Q OF THIS TITLE, REQUIRE--- * * * (3) CONTRIBUTIONS IN MONEY, SERVICES, MATERIALS, OR OTHERWISE, TO ANY OPERATIONS CONFERRING SUCH BENEFITS.'

IT IS CONTENDED BY SOIL CONSERVATION SERVICE OFFICIALS FAMILIAR WITH THE HISTORY OF THIS LEGISLATION THAT THESE PROVISIONS WERE INTENDED TO ALLOW BROAD COOPERATIVE PRACTICES OF SUCH TYPES AS MAY BE NECESSARY IN ATTAINING THE OBJECTIVES OF THE ACT, INCLUDING SUCH A FACILITATING METHOD FOR SECURING THE REQUIRED PERFORMANCE OF THE WORK AS THIS REIMBURSEMENT PROCEDURE NOW PROPOSED. IT IS ALSO STATED THAT THIS WILL NOT RESULT IN AUGMENTING THE APPROPRIATION INVOLVED; SINCE, IF IT CANNOT BE FOLLOWED IT WILL SIMPLY MEAN IN SOME CASES THAT IT WILL NOT BE POSSIBLE TO UNDERTAKE IMPORTANT COOPERATIVE WORK.

IT MAY, OF COURSE, BE POSSIBLE IN SOME INSTANCES TO SECURE THE REMITTANCE FROM THE COOPERATOR IN ADVANCE OF THE PERFORMANCE OF THE WORK; THIS TO BE DEPOSITED IN A TRUST FUND ACCOUNT; HOWEVER, DUE TO EITHER PROHIBITORY LAWS, REGULATIONS, OR POLICIES, IT SEEMS SOME STATE AGENCIES ARE UNABLE TO MAKE THESE PAYMENTS IN ADVANCE.

YOUR EARLY CONSIDERATION OF THE QUESTION PRESENTED AND DECISION IN THE MATTER WOULD BE APPRECIATED.

IN DECISION OF AUGUST 28, 1936, 16 COMP. GEN. 195, IT WAS STATED:

* * * THE QUESTION AS TO WHETHER MONEYS COLLECTED TO REIMBURSE THE GOVERNMENT FOR EXPENDITURES PREVIOUSLY MADE SHOULD BE USED TO REIMBURSE THE APPROPRIATIONS FROM WHICH THE EXPENDITURES WERE MADE OR SHOULD BE COVERED INTO THE GENERAL FUND OF THE TREASURY HAS OFTEN BEEN BEFORE THE ACCOUNTING OFFICERS OF THE TREASURY AND THIS OFFICE, AND IT HAD BEEN UNIFORMLY HELD THAT IN THE ABSENCE OF AN EXPRESS PROVISION IN THE STATUTE TO THE CONTRARY, SUCH FUNDS SHOULD BE COVERED IN AS MISCELLANEOUS RECEIPTS. 22 COMP. GEN. 253; ID. 315; 24 COMP. DEC. 694; 5 COMP. GEN. 289. * *

WHERE THE ESTABLISHED RULE IS FOR APPLICATION, THERE IS NO AUTHORITY FOR MAKING EXCEPTIONS THERETO; BUT THE RULE IS NOT APPLICABLE TO ALL CASES IN WHICH REIMBURSEMENT IS RECEIVED. FOR INSTANCE, IN DECISION OF JANUARY 30, 1940, B-8121, TO THE SECRETARY OF THE INTERIOR, IT WAS STATED:

IT HAS BEEN THE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT FOR A NUMBER OF YEARS THAT WHEN SPECIFIC PROVISION IS MADE IN PURCHASE CONTRACTS OR AGREEMENTS FOR THE RETURN OF CONTAINERS TO THE CONTRACTOR AT A STIPULATED PRICE, THE AMOUNT PAID ORIGINALLY FOR SUCH CONTAINERS IS ONLY A TENTATIVE CHARGE AGAINST THE APPROPRIATION INVOLVED, AND THE RECEIPTS FROM THE RETURN OF SAID CONTAINERS ARE FOR DEPOSITING TO THE CREDIT OF THE APPROPRIATION FROM WHICH TENTATIVE PAYMENT WAS MADE. THAT STATEMENT WAS QUOTED WITH APPROVAL IN DECISION OF DECEMBER 23, 1943, B-38761 (23 COMP. GEN. 462), TO N. A. OLMSTED, AUTHORIZED CERTIFYING OFFICER, AGRICULTURAL RESEARCH ADMINISTRATION.

THE ACT PROVIDING FOR THE PROTECTION OF LAND RESOURCES AGAINST SOIL EROSION, 49 STAT. 163, CONFERS UPON THE SECRETARY OF AGRICULTURE BROAD AUTHORITY, NOW SHARED BY THE WAR FOOD ADMINISTRATOR, BOTH OF WHOM ARE AUTHORIZED TO COOPERATE OR ENTER INTO AGREEMENTS WITH STATE AGENCIES; AND THE WAR FOOD ADMINISTRATOR IS AUTHORIZED TO FURNISH FINANCIAL OR OTHER AID SUBJECT TO SUCH CONDITIONS AS HE MAY DEEM NECESSARY FOR THE PURPOSE OF CARRYING OUT CERTAIN SECTIONS OF THE ACT. PURSUANT THERETO THE SOIL CONSERVATION SERVICE DESIRES TO ENTER INTO AGREEMENTS WITH COOPERATING STATE AGENCIES WHEREBY THE EXPENSE OF THE PROJECT SHALL BE SHARED BY THE SOIL CONSERVATION SERVICE AND THE STATE AGENCY. IF THE SOIL CONSERVATION SERVICE AND THE STATE AGENCY EACH IS EQUIPPED AND ABLE TO PERFORM ITS AGREED PROPORTION OF THE WORK, NO QUESTION ARISES; ALSO, IF THE STATE AGENCY IS NOT PREPARED TO PERFORM ITS SHARE OF THE WORK DIRECTLY, BUT IS ABLE, FINANCIALLY AND LEGALLY, TO ADVANCE ITS AGREED SHARE OF THE COST OF THE PROJECT, AND THE AMOUNT IS PLACED IN A TRUST FUND ACCOUNT AND EXPENDED BY THE SOIL CONSERVATION SERVICE PURSUANT TO THE AGREEMENT, NO QUESTION ARISES. IN EITHER CASE THE APPROPRIATION FOR SOIL CONSERVATION IS CHARGED WITH THE AGREED SHARE OF THE EXPENSE INVOLVED. YOUR CHIEF QUESTION, HOWEVER, ARISES IN CASES WHERE THE STATE AGENCY DESIRING TO COOPERATE DOES NOT HAVE THE FACILITIES TO PERFORM ITS SHARE OF THE WORK DIRECTLY AND, DUE TO PROHIBITING LAWS, REGULATIONS, OR POLICIES, IS UNABLE TO ADVANCE ITS SHARE OF THE MONEY UNTIL AFTER THE WORK HAS BEEN PERFORMED. IT IS UNDERSTOOD THAT, IN SOME SUCH CASES, THE SOIL CONSERVATION SERVICE DESIRES TO ENTER INTO COOPERATING AGREEMENTS WITH THE STATE AGENCIES WHEREBY THE EXPENSE OF THE PROJECT WOULD BE SHARED BUT ALL THE WORK WOULD BE PERFORMED BY THE SOIL CONSERVATION SERVICE FOR WHICH IT WOULD BE REIMBURSED BY THE STATE AGENCY FOR THE AGREED SHARE OF THE EXPENSE INVOLVED. UNLESS THE AMOUNT PAID BY THE STATE AGENCY BE CREDITED TO THE APPROPRIATION AGAINST WHICH THE EXPENSE OF THE PROJECT WAS CHARGED, THE APPROPRIATION AVAILABLE FOR SOIL CONSERVATION SERVICE WILL HAVE BEEN DEPLETED IN THE FULL AMOUNT EXPENDED ON THE PROJECT FOR BOTH THE FEDERAL AND THE STATE AGENCIES AND THE RESULTS SOUGHT TO BE ACCOMPLISHED BY THE STATUTORY PROVISIONS FOR COOPERATIVE WORK WOULD BE DEFEATED.

ACCORDINGLY, IF IT BE ADMINISTRATIVELY DETERMINED THAT IT IS NECESSARY IN THE SITUATIONS REFERRED TO FOR THE SOIL CONSERVATION SERVICE TO PERFORM ALL THE SERVICES IN CONNECTION WITH CERTAIN PROJECTS PURSUANT TO AGREEMENTS WITH STATE AGENCIES FOR REIMBURSEMENT OF A SHARE OF THE EXPENSE INVOLVED IN ORDER TO CARRY OUT THE PURPOSES OF THE SOIL CONSERVATION ACT OF APRIL 27, 1935, THE AMOUNT EXPENDED FOR WHICH THE STATE AGENCY HAS AGREED TO REIMBURSE, MAY BE CONSIDERED AS A TENTATIVE CHARGE, ONLY, AGAINST THE APPROPRIATION RATHER THAN AN EXPENDITURE AND THE AMOUNT RECEIVED IN REIMBURSEMENT MAY BE REGARDED AS A REPAYMENT TO THE APPROPRIATION AGAINST WHICH THE TENTATIVE CHARGE WAS MADE. OF COURSE, ANY AMOUNT RECEIVED IN EXCESS OF THE AMOUNT EXPENDED WOULD BE FOR COVERING INTO THE TREASURY AS A MISCELLANEOUS RECEIPT.