B-49560, MAY 25, 1945, 24 COMP. GEN. 851

B-49560, MAY 25, 1945, 24 COMP. GEN. 851

DEPARTMENTS AND ESTABLISHMENTS - SERVICES BETWEEN OFFICE SPACE - ADVANCE PAYMENTS UNDER THE PROVISIONS OF SECTION 601 OF THE ACT OF JUNE 30, 1932, AS AMENDED, RESPECTING INTERAGENCY SERVICES, ONE AGENCY MAY FURNISH ANOTHER AGENCY A PORTION OF ITS LEASED OFFICE SPACE, AND PAYMENT MAY BE MADE IN ADVANCE--- WITHOUT REGARD TO THE ADVANCE PAYMENT PROHIBITION OF SECTION 3648, REVISED STATUTES--- OR ON ANY OTHER BASIS AGREED UPON, FOR NOT TO EXCEED THE PROPORTIONATE COST OF THE SPACE AND FOR ALL UTILITIES AND SERVICES FURNISHED.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, MAY 25, 1945:

I HAVE YOUR LETTER OF MAY 2, 1945, REFERENCE 46, AS FOLLOWS:

THIS DEPARTMENT HAS BEEN OCCUPYING APPROXIMATELY 6,000 SQUARE FEET OF SPACE IN A BUILDING AT MIAMI, FLORIDA, LEASED BY THE WAR DEPARTMENT AND LOCATED AT 229 NORTH 39TH STREET. THE SPACE IS VERY NECESSARY BECAUSE OF CONGESTED CONDITIONS OBTAINING AT THE MAIN OFFICE AT MIAMI.

THERE IS APPENDED A PHOTOSTATIC COPY OF A FORM OF PERMIT, COVERING THE USE OF THE SAID SPACE, ISSUED BY THE WAR DEPARTMENT. IT WILL BE NOTED THAT THE PERMIT IN SUB-PARAGRAPH 5, PROVIDES THAT THIS DEPARTMENT SHALL REIMBURSE THE WAR DEPARTMENT IN THE AMOUNT OF $98.50 PER MONTH, PAYABLE IN ADVANCE, FOR ITS PROPORTIONED SHARE OF THE RENTAL PAID BY THE WAR DEPARTMENT, UNDER LEASE NO. 2-2287-ENG-528.

IT IS UNDERSTOOD THAT PAYMENT OF RENTAL MAY NOT BE MADE IN ADVANCE. HOWEVER, THE QUESTION ARISES AS TO WHETHER THIS DEPARTMENT MAY LEGALLY PAY TO THE WAR DEPARTMENT AN AMOUNT REPRESENTING THE PRO RATA SHARE OF THE TOTAL RENT PAID BY THE WAR DEPARTMENT FOR THE USE OF THE ENTIRE PREMISES, OF WHICH THIS DEPARTMENT OCCUPIES A PART. THE DEPARTMENT UNDERSTANDS THAT IT CAN LEGALLY PAY ITS PROPORTIONATE SHARE OF OPERATING AND MAINTENANCE EXPENSES, BUT I SHALL BE PLEASED TO HAVE YOUR RULING AS TO WHETHER IN THE INSTANT CASE IT MAY REIMBURSE THE WAR DEPARTMENT FOR ITS PROPORTIONATE SHARE OF THE TOTAL RENTAL INVOLVED.

THE REFERRED-TO SUBPARAGRAPH 5, OF THE PERMIT UNDER WHICH YOUR DEPARTMENT OCCUPIES A PORTION OF THE LEASED PREMISES PROVIDES:

5. THAT THE PERMITTEE SHALL REIMBURSE THE WAR DEPARTMENT IN THE AMOUNT OF NINETY-EIGHT AND 50/100 ($98.50) PER MONTH, PAYABLE MONTHLY IN ADVANCE, FOR THE PROPORTIONATE SHARE OF THE RENTAL PAID BY THE UNITED STATES, UNDER THE SAID LEASE NO. W-2287-ENG-528, AND IN ADDITION THERETO, SHALL PAY ITS PROPORTIONATE SHARE OF ALL UTILITIES, BASED UPON METER READINGS, OR OTHER SUCH METHODS AS MAY BE DETERMINED BY THE SAID OFFICER OR OTHER COMPETENT MILITARY AUTHORITY. PAYMENT SHALL BE MADE DIRECT TO THE PRODUCING COMPANY COVERING SUCH SERVICES AS ARE NOT PRODUCED BY THE WAR DEPARTMENT. FOR SUCH SERVICES AS ARE PRODUCED AND FURNISHED BY THE WAR DEPARTMENT, THE PERMITTEE SHALL PAY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 7 OF THE ACT OF CONGRESS APPROVED MAY 21, 1920 (41 STAT. 613), AS AMENDED BY SECTION 601 OF THE ACT OF CONGRESS, APPROVED JUNE 30, 1932 (47 STAT. 417), AND BY THE ACTS OF CONGRESS APPROVED JULY 20, 1942 (56 STAT. 661), AND JUNE 26, 1943 (57 STAT. 219), AND WITH APPLICABLE REGULATIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES, GOVERNING PAYMENTS BETWEEN DEPARTMENTS OF THE UNITED STATES FOR SERVICES RENDERED.

SECTION 3648, REVISED STATUTES, PROVIDES:

NO ADVANCE OF PUBLIC MONEY SHALL BE MADE IN ANY CASE WHATEVER. AND IN ALL CASES OF CONTRACTS FOR THE PERFORMANCE OF ANY SERVICE, OR THE DELIVERY OF ARTICLES OF ANY DESCRIPTION, FOR THE USE OF THE UNITED STATES, PAYMENT SHALL NOT EXCEED THE VALUE OF THE SERVICE RENDERED, OR OF THE ARTICLES DELIVERED PREVIOUSLY TO SUCH PAYMENT. IT SHALL, HOWEVER, BE LAWFUL, UNDER THE SPECIAL DIRECTION OF THE PRESIDENT, TO MAKE SUCH ADVANCES TO THE DISBURSING OFFICERS OF THE GOVERNMENT AS MAY BE NECESSARY TO THE FAITHFUL AND PROMPT DISCHARGE OF THEIR RESPECTIVE DUTIES, AND TO THE FULFILLMENT OF THE PUBLIC ENGAGEMENTS. THE PRESIDENT MAY ALSO DIRECT SUCH ADVANCES AS HE MAY DEEM NECESSARY AND PROPER, TO PERSONS IN THE MILITARY AND NAVAL SERVICE EMPLOYED ON DISTANT STATIONS, WHERE THE DISCHARGE OF THE PAY AND EMOLUMENTS TO WHICH THEY MAY BE ENTITLED CANNOT BE REGULARLY EFFECTED.

IT HAS BEEN HELD THAT SAID STATUTE PROHIBITS ADVANCE PAYMENTS OF RENTAL UNLESS THERE BE SPECIFIC STATUTORY PROVISION FOR SUCH PAYMENTS. 19 COMP. GEN. 758.

IN THE CASE HERE PRESENTED, THE PERMIT PROVIDES THAT RENTAL PAYMENTS SHALL BE MADE IN ADVANCE, AND THAT THE PERMITTEE SHALL MAKE PAYMENTS FOR ITS PROPORTIONATE SHARE OF UTILITIES PRODUCED AND FURNISHED BY THE WAR DEPARTMENT IN ACCORDANCE WITH SECTION 601 OF THE ECONOMY ACT AS AMENDED. SAID STATUTE AS INCORPORATED IN SECTION 686, TITLE 31, U.S. CODE, SUPP. IV, PROVIDES, IN MATERIAL PART---

(A) ANY EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT OF THE GOVERNMENT, OR ANY BUREAU OF OFFICE THEREOF, IF FUNDS ARE AVAILABLE THEREFOR AND IF IT IS DETERMINED BY THE HEAD OF SUCH EXECUTIVE DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE TO BE IN THE INTEREST OF THE GOVERNMENT SO TO DO, MAY PLACE ORDERS WITH ANY OTHER SUCH DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE FOR MATERIALS, SUPPLIES, EQUIPMENT, WORK, OR SERVICES, OF ANY KIND THAT SUCH REQUISITIONED FEDERAL AGENCY MAY BE IN A POSITION TO SUPPLY OR EQUIPPED TO RENDER, AND SHALL PAY PROMPTLY BY CHECK TO SUCH FEDERAL AGENCY AS MAY BE REQUISITIONED, UPON ITS WRITTEN REQUEST, EITHER IN ADVANCE OR UPON THE FURNISHING OR PERFORMANCE THEREOF, ALL OR PART OF THE ESTIMATED OR ACTUAL COST THEREOF AS DETERMINED BY SUCH DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE AS MAY BE REQUISITIONED; BUT PROPER ADJUSTMENTS ON THE WORK OR SERVICES PERFORMED, PAID FOR IN ADVANCE, SHALL BE MADE AS MAY BE AGREED UPON BY THE DEPARTMENTS, ESTABLISHMENTS, BUREAUS, OR OFFICES CONCERNED: PROVIDED, THAT THE WAR DEPARTMENT, TREASURY DEPARTMENT, CIVIL AERONAUTICS ADMINISTRATION, AND THE MARITIME COMMISSION MAY PLACE ORDERS, AS PROVIDED HEREIN, FOR MATERIALS, SUPPLIES, EQUIPMENT, WORK, OR SERVICES, OF ANY KIND THAT ANY REQUISITIONED FEDERAL AGENCY MAY BE IN A POSITION TO SUPPLY, OR TO RENDER OR TO OBTAIN BY CONTRACT: PROVIDED FURTHER, THAT IF SUCH WORK OR SERVICES CAN BE AS CONVENIENTLY OR MORE CHEAPLY PERFORMED BY PRIVATE AGENCIES SUCH WORK SHALL BE LET BY COMPETITIVE BIDS TO SUCH PRIVATE AGENCIES. BILLS RENDERED, OR REQUESTS FOR ADVANCE PAYMENTS MADE, PURSUANT TO ANY SUCH ORDER, SHALL NOT BE SUBJECT TO AUDIT OR CERTIFICATION IN ADVANCE OF PAYMENT.

THAT STATUTE PROVIDES FOR PROMPT PAYMENT, OR PAYMENT IN ADVANCE WHEN AGREED UPON BY THE DEPARTMENTS, FOR SERVICES RENDERED OR MATERIALS FURNISHED ONE DEPARTMENT BY ANOTHER. IT PROVIDES FOR PROPER ADJUSTMENTS ON THE BASIS OF ACTUAL COST OF THE MATERIALS, SUPPLIES, OR EQUIPMENT FURNISHED, OR WORK OR SERVICES PERFORMED, AND THE PAYMENTS MAY BE MADE IN ADVANCE AS AGREED UPON BY THE DEPARTMENTS CONCERNED. WHILE THE FURNISHING OF OFFICE SPACE IS NOT COVERED IN SPECIFIC TERMS, THE STATUTE IS BROAD ENOUGH TO INCLUDE SUCH COOPERATION BETWEEN DEPARTMENTS, AND, YOUR DEPARTMENT BEING AUTHORIZED BY THE REFERRED-TO PERMIT TO OCCUPY SPACE ON WHICH THE RENTAL IS BEING PAID BY THE WAR DEPARTMENT, THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO THE UNDERTAKING ON THE PART OF YOUR DEPARTMENT TO REIMBURSE THE WAR DEPARTMENT FOR NOT TO EXCEED THE PROPORTIONATE COST OF THE SPACE AND OTHER SERVICES SO FURNISHED TO YOUR DEPARTMENT. THE QUESTION HERE PRESENTED DOES NOT INVOLVE THE DISCHARGE OF A GOVERNMENT OBLIGATION TO A NON-GOVERNMENT AGENCY OR INDIVIDUAL WHERE AN EXCESS PAYMENT MIGHT RESULT IN A LOSS TO THE UNITED STATES. IN CASE OF AN OVERPAYMENT BY ONE DEPARTMENT TO ANOTHER, THE MATTER CAN BE ADJUSTED UPON DISCOVERY.

IN THE LIGHT OF THE FOREGOING, YOU ARE ADVISED, IN ANSWER TO THE QUESTION POSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER, THAT THE WAR DEPARTMENT MAY BE REIMBURSED ON A PROPORTIONATE BASIS FOR THE RENTAL PAID ON THE SPACE OCCUPIED BY YOUR DEPARTMENT AND FOR ALL UTILITIES AND SERVICES FURNISHED, AND THAT REIMBURSEMENT MAY BE MADE UPON SUCH BASIS AS HAS BEEN, OR MAY BE, AGREED UPON BY THE DEPARTMENTS.