B-40494, APRIL 27, 1944, 23 COMP. GEN. 811

B-40494, APRIL 27, 1944, 23 COMP. GEN. 811

CONTRACTS - NATIONAL PARK CONCESSIONS - TERMINATION OR SUSPENSION DURING WAR PERIOD WHERE A CONCESSIONER IN A NATIONAL PARK IS REQUIRED TO PAY AN ANNUAL FRANCHISE FEE UNDER AN AGREEMENT FOR THE MAINTENANCE OF A SADDLE AND PACK HORSE TRANSPORTATION SERVICE FOR THE BENEFIT OF PARK VISITORS, THE FACT THAT THE CONTRACT HAS BECOME UNPROFITABLE BECAUSE OF THE GASOLINE AND TIRE RATIONING PROGRAMS INSTITUTED BY THE GOVERNMENT FURNISHES NO LEGAL BASIS FOR ADMINISTRATIVE ACTION WHICH CONTEMPLATES THAT THE CONTRACT SHALL CONTINUE OPERATIVE AND IN EFFECT BUT THAT THERE SHALL BE A WAIVER OR ABATEMENT OF THE FRANCHISE FEE. IF IT BE ADMINISTRATIVELY DETERMINED THAT THE PUBLIC INTEREST DOES NOT REQUIRE A CONTINUATION OF A CONTRACT UNDER WHICH A CONCESSIONER IN A NATIONAL PARK IS REQUIRED TO MAINTAIN FOR THE BENEFIT OF PARK VISITORS A SADDLE AND PACK HORSE TRANSPORTATION SERVICE FOR A PERIOD OF 15 YEARS FROM JANUARY 1, 1942, AND TO PAY AN ANNUAL FRANCHISE FEE THEREFOR, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO THE EXECUTION OF A SUPPLEMENTAL AGREEMENT WITH THE CONCESSIONER TO TERMINATE OR TEMPORARILY SUSPEND THE ENTIRE CONTRACT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, APRIL 27, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 29, 1944, AS FOLLOWS:

ON MARCH 19, 1942, CONTACT NO. I-1P-18177, A COPY OF WHICH IS ENCLOSED, WAS ENTERED INTO BETWEEN THE UNITED STATES OF AMERICA AND THE PARK SADDLE HORSE COMPANY UNDER WHICH IT AGREED TO ESTABLISH, MAINTAIN, AND OPERATE IN GLACIER NATIONAL PARK A SADDLE AND PACK HORSE TRANSPORTATION SERVICE FOR THE BENEFIT OF THE VISITORS TO THE PARK FOR A PERIOD OF FIFTEEN YEARS FROM JANUARY 1, 1942. ARTICLE IV (B) OF THE CONTRACT REQUIRES THE COMPANY TO PAY A FRANCHISE FEE OF $500 PER ANNUM TOGETHER WITH A PERCENT OF NET PROFITS IN EXCESS OF A PRIORITY AMOUNTING TO 6 PERCENT OF THE VALUE OF ITS INVESTMENT.

BECAUSE OF CONDITIONS DUE TO THE WAR, IT WAS DEEMED ADVISABLE TO DISCONTINUE ENTIRELY THE BUS TRANSPORTATION SERVICE OF THE GLACIER PARK TRANSPORT COMPANY, AND TO CURTAIL MATERIALLY THE HOUSING AND MEAL SERVICE OF THE GLACIER PARK COMPANY (FORMERLY GLACIER PARK HOTEL COMPANY). BECAUSE OF THIS DISCONTINUANCE AND CURTAILMENT OF SERVICE, IT WAS ALSO CONSIDERED ADVISABLE TO DISCONTINUE ENTIRELY THE SADDLE AND PACK HORSE TRANSPORTATION SERVICE AND OTHER INCIDENTAL PRIVILEGES OF THE PARK SADDLE HORSE COMPANY. COPIES OF PERTINENT COMMUNICATIONS IN CONNECTION WITH THESE MATTERS ARE ENCLOSED.

MR. GEORGE W. NOFFSINGER, PRESIDENT OF THE PARK SADDLE HORSE COMPANY, IN A LETTER OF JANUARY 29, TO THE DIRECTOR OF THE NATIONAL PARK SERVICE, A COPY OF WHICH IS ENCLOSED, HAS REQUESTED THAT THE CONCESSION FEES DUE FROM HIS COMPANY, STARTING WITH THE YEAR 1943 AND FOR THE DURATION OF THE WAR, BE WAIVED OR ABATED. THIS APPLICATION IS MADE ON THE GROUNDS THAT THE PARK WAS NOT REGULARLY OPEN; THAT OTHER FACILITIES WERE NOT IN OPERATION; THAT, THEREFORE, IT WOULD HAVE BEEN IMPOSSIBLE FOR HIS COMPANY TO HAVE OPERATED DURING THE YEAR 1943; AND, THAT THE SAME CONDITION DOUBTLESS WILL PREVAIL FOR THE DURATION OF THE WAR.

THE GREAT NORTHERN RAILROAD WHICH SERVES VISITORS TO THE GLACIER NATIONAL PARK DECIDED, AS A MATTER OF POLICY AND TO CONFORM TO THE REQUESTS OF THE OFFICE OF DEFENSE TRANSPORTATION, NOT TO SOLICIT TOURIST BUSINESS FOR GLACIER NATIONAL PARK DURING THE 1943 SEASON, AND IT DID NOT STOP ITS TRANSCONTINENTAL PASSENGER TRAINS AT GLACIER PARK AND BELT ON, THE RAILROAD STATIONS ADJACENT TO THE PARK. BECAUSE OF GASOLINE AND TIRE RESTRICTIONS, IT WAS EVIDENT PRIOR TO THE OPENING OF THE 1943 SEASON THAT THERE WOULD BE FEW VISITORS REACHING THE PARK BY AUTOMOBILE. IT IS THE BROAD GENERAL POLICY OF THIS DEPARTMENT AS AN AID IN THE WINNING OF THE WAR TO DISCOURAGE RATHER THAN ENCOURAGE, AS IS THE CUSTOM IN PEACETIME, VISITATION TO THE NATIONAL PARKS. THEREFORE, THE ACTION MENTIONED IN THE SECOND PARAGRAPH OF THIS COMMUNICATION WAS TAKEN AND THE PARK SADDLE HORSE COMPANY FURNISHED NO SERVICES TO VISITORS TO THE PARK DURING 1943. IT IS NOT LIKELY THAT IT WILL BE CALLED UPON BY THIS DEPARTMENT TO FURNISH ANY SERVICES FOR THE DURATION OF THE WAR.

IN VIEW OF THE CIRCUMSTANCES, YOUR OPINION IS REQUESTED AS TO WHETHER THE CONCESSION FEES DUE FROM THE PARK SADDLE HORSE COMPANY STARTING WITH THE YEAR 1943 AND FOR THE DURATION OF THE WAR MAY BE WAIVED OR ABATED BY ADMINISTRATIVE OR OTHER ACTION.

IN DECISION OF APRIL 11, 1944, B-40226, TO YOU, IT WAS HELD THAT AN ADMINISTRATIVE REMISSION OR REDUCTION IN THE AMOUNT OF THE ANNUAL FRANCHISE FEE REQUIRED TO BE PAID UNDER AN AGREEMENT FOR THE MAINTENANCE AND OPERATION OF A MEDICAL AND HOSPITAL SERVICE IN YELLOWSTONE NATIONAL PARK IS UNAUTHORIZED IN THE ABSENCE OF SOME COMPENSATING BENEFIT TO THE GOVERNMENT. IN SAID DECISION IT WAS STATED:

THERE IS NO PROVISION IN THE CONTRACT INVOLVED TO THE EFFECT THAT THE CONTRACTOR MAY BE EXCUSED FROM PERFORMANCE IN THE EVENT ANTICIPATED REVENUES FAIL TO MATERIALIZE; CONSEQUENTLY, THERE IS NO LEGAL BASIS FOR RELIEVING THE CONTRACTOR FROM HIS OBLIGATIONS THEREUNDER ON THE GROUND THAT THE CONTRACT IS UNPROFITABLE. SEE COLUMBUS RAILWAY, POWER AND LIGHT CO. V. COLUMBUS, 249 U.S. 399, AND CASES THEREIN CITED. ALSO, IT IS WELL SETTLED THAT, IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING, NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO GIVE AWAY OR SURRENDER ANY RIGHT VESTED IN OR ACQUIRED BY THE GOVERNMENT UNDER A CONTRACT. SEE BRAWLEY V. UNITED STATES, 96 U.S. 168; SIMPSON V. U.S., 172; U.S. 372; PACIFIC HARDWARE CO. V. UNITED STATES, 49 C.1CLS. 327; BAUSCH AND LOMB OPTICAL CO. V. UNITED STATES, 78 C.1CLS. 584. * * *

IN VIEW OF THE FACTUAL SIMILARITY BETWEEN THE DECISION OF APRIL 11, 1944, AND THE PRESENT MATTER, THE LEGAL PRINCIPLES CONSIDERED AND THE CONCLUSION REACHED IN SAID DECISION APPEAR TO BE EQUALLY APPLICABLE HERE TO THE EXTENT THAT THE QUESTION PRESENTED CONTEMPLATES THAT THE CONTRACT SHALL CONTINUE OPERATIVE AND IN EFFECT BUT THAT THERE SHALL BE A WAIVER OR ABATEMENT OF THE FRANCHISE FEE.

HOWEVER, IT IS UNDERSTOOD FROM YOUR LETTER AND ITS ACCOMPANYING ENCLOSURES THAT, AT THE REQUEST OF YOUR DEPARTMENT, THE SADDLE AND PACK HORSE TRANSPORTATION SERVICE AND OTHER INCIDENTAL PRIVILEGES OF THE PARK SADDLE HORSE COMPANY UNDER THE CONTRACT INVOLVED WERE DISCONTINUED ENTIRELY BEGINNING WITH THE YEAR 1943. IN VIEW OF THESE CIRCUMSTANCES, YOU ARE ADVISED THAT IF IT BE ADMINISTRATIVELY DETERMINED THAT THE PUBLIC INTEREST DOES NOT REQUIRE A CONTINUATION OF THE CONTRACT, AT LEAST FOR THE PRESENT, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO THE EXECUTION OF SUPPLEMENTAL AGREEMENT WITH THE CONTRACTOR TO TERMINATE OR TEMPORARILY SUSPEND THE ENTIRE CONTRACT EFFECTIVE JANUARY 1, 1943. IN THAT CONNECTION, SEE MY DECISION OF MAY 22, 1942, B-25701, TO YOU.