B-122254, FEB. 1, 1957

B-122254: Feb 1, 1957

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WE HELD THAT FUNDS MADE AVAILABLE TO THE SOUTHWESTERN POWER ADMINISTRATION IN ITS "CONTINUING FUND" FOR THE FISCAL YEAR 1954 ARE AVAILABLE TO IMPLEMENT CERTAIN CONTRACTS BETWEEN THAT ADMINISTRATION AND THE G AND T COOPERATIVES. AS OF THE DATE THAT DECISION WAS RENDERED ONLY THREE OF THE FIVE G AND T COOPERATIVES INVOLVED (CENTRAL ELECTRIC POWER COOPERATIVE. CORRESPONDENCE RECEIVED FROM YOUR DEPARTMENT PRIOR TO OUR DECISION INDICATED THAT IF THE APPROPRIATION IN QUESTION WAS HELD AVAILABLE TO IMPLEMENT THE CONTRACTS. IT IS STATED IN THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER THAT. IT IS FURTHER STATED THAT YOUR DEPARTMENT HAS SENT LETTERS REQUESTING SUCH INFORMATION TO N. WILL BE PREPARED AND SUBMITTED HERE.

B-122254, FEB. 1, 1957

TO THE HONORABLE, THE SECRETARY OF THE INTERIOR:

A LETTER OF JANUARY 8, 1957, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR, REFERS TO OUR DECISION OF NOVEMBER 8, 1956, B-122254, TO YOU, RELATIVE TO CLAIMS OF CERTAIN GENERATING AND TRANSMISSION COOPERATIVES, AND PRESENTS FOR OUR CONSIDERATION A MATTER WHICH HAS ARISEN IN CONNECTION THEREWITH.

IN THE ABOVE REFERRED-TO DECISION, WE HELD THAT FUNDS MADE AVAILABLE TO THE SOUTHWESTERN POWER ADMINISTRATION IN ITS "CONTINUING FUND" FOR THE FISCAL YEAR 1954 ARE AVAILABLE TO IMPLEMENT CERTAIN CONTRACTS BETWEEN THAT ADMINISTRATION AND THE G AND T COOPERATIVES. IN ORDER TO SETTLE THE CLAIMS OF THE COOPERATIVES ON THE BASIS SET FORTH IN OUR DECISION, WE REQUESTED THAT YOU FURNISH US MONTHLY BILLINGS SHOWING THE AMOUNTS DUE THE COOPERATIVES AND THE GOVERNMENT DURING EACH MONTH OF THE PERIOD JULY 1, 1953, TO JUNE 30, 1954.

AS OF THE DATE THAT DECISION WAS RENDERED ONLY THREE OF THE FIVE G AND T COOPERATIVES INVOLVED (CENTRAL ELECTRIC POWER COOPERATIVE, N. W. ELECTRIC POWER COOPERATIVE, INC., AND WESTERN FARMERS ELECTRIC COOPERATIVE) HAD FILED CLAIMS WITH SOUTHWESTERN, AND ONLY ONE COOPERATIVE (CENTRAL) HAD FURNISHED MONTHLY BILLINGS. HOWEVER, CORRESPONDENCE RECEIVED FROM YOUR DEPARTMENT PRIOR TO OUR DECISION INDICATED THAT IF THE APPROPRIATION IN QUESTION WAS HELD AVAILABLE TO IMPLEMENT THE CONTRACTS, SOUTHWESTERN EXPECTED CLAIMS FROM THE OTHER TWO COOPERATIVES.

IT IS STATED IN THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER THAT, EXCEPT IN THE CASE OF CENTRAL, BEFORE THE REQUESTED STATEMENTS CAN BE PREPARED THE COOPERATIVES INVOLVED MUST FURNISH THE NECESSARY DATA AND INFORMATION. IT IS FURTHER STATED THAT YOUR DEPARTMENT HAS SENT LETTERS REQUESTING SUCH INFORMATION TO N. W. ELECTRIC POWER COOPERATIVE, INC., AND WESTERN FARMERS ELECTRIC COOPERATIVE, AND UPON RECEIPT THEREOF ESTIMATES OF MONTHLY BILLING STATEMENTS, AS REQUESTED IN OUR DECISION OF NOVEMBER 8, WILL BE PREPARED AND SUBMITTED HERE.

THE LAST PARAGRAPH OF THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER IS AS FOLLOWS:

"YOUR OPINION IS REQUESTED AS TO WHETHER SIMILAR LETTERS MAY PROPERLY BE SENT TO KAMO ELECTRIC COOPERATIVE, INC., AND SHO-ME POWER CORPORATION, NEITHER OF WHICH HAS AS YET ASSERTED A CLAIM AGAINST THE GOVERNMENT FOR THE PERIOD INVOLVED. ALTHOUGH THESE TWO COOPERATIVES ARE REFERRED TO IN THE AFOREMENTIONED OPINION, NO EFFORT HAS BEEN MADE TO SECURE INFORMATION FROM THEM NOR HAVE THEY BEEN FURNISHED COPIES OF YOUR OPINION, SINCE SUCH ACTION MIGHT BE VIEWED AS INVITING CLAIMS AGAINST THE GOVERNMENT IN CONTRAVENTION OF THE PROVISIONS OF 18 U.S.C.A. 283. IN ORDER THAT THIS PROBLEM MAY BE DISPOSED OF PROMPTLY, AN EARLY OPINION IS REQUESTED AS TO WHETHER YOUR OFFICE WOULD QUESTION ACTIONS BY GOVERNMENT OFFICERS AND EMPLOYEES IN FURNISHING COPIES OF THE OPINION TO THESE TWO COOPERATIVES AND REQUESTING THE SUBMISSION OF NECESSARY DATA AND INFORMATION.'

SECTION 283 OF TITLE 18, U.S.C. PROHIBITS ANY OFFICER OR EMPLOYEE OF THE UNITED STATES FROM AIDING OR ASSISTING IN THE PROSECUTION OR SUPPORT OF ANY CLAIM AGAINST THE UNITED STATES OTHERWISE THAN IN THE PROPER DISCHARGE OF HIS OFFICIAL DUTIES.

THE FACTS AND CIRCUMSTANCES WHICH GAVE RISE TO THE INSTANT MATTER ARE SET FORTH IN DETAIL IN OUR DECISION OF NOVEMBER 8, 1956, B-122254, AND NO USEFUL PURPOSE WOULD BE SERVED BY REPETITION THEREOF HERE. HOWEVER, THE FOLLOWING EXCERPTS FROM THAT DECISION APPEAR PERTINENT IN CONSIDERING THE REQUEST MADE IN THE LAST SENTENCE OF THE ASSISTANT SECRETARY'S LETTER:

"THE FAILURE OF SOUTHWESTERN TO IMPLEMENT DURING THE FISCAL YEAR 1954 THE ORIGINAL CONTRACTS WITH THE COOPERATIVES APPEARS TO HAVE BEEN DUE TO ITS ERRONEOUS BELIEF THAT NO PART OF THE APPROPRIATION FOR THAT YEAR WAS AVAILABLE THEREFOR. BUT FOR SUCH ERRONEOUS CONCLUSION, THE APPROPRIATION OF $1,200,000 LESS AMOUNTS NECESSARY FOR OTHER OBJECTS WOULD HAVE BEEN USED FOR SUCH PURPOSE. IT THUS WOULD APPEAR EQUITABLE AND PROPER TO NOW USE THE REMAINING AMOUNT IN THAT FUND, NOT OTHERWISE OBLIGATED, TO SATISFY THE AMOUNTS DUE THE COOPERATIVES UNDER THE CONTRACTS. THIS WOULD IN EFFECT IMPLEMENT THEM TO THE EXTENT OF THE APPROPRIATION MADE AVAILABLE THEREFOR.

"UNDER THE CONTRACTS, THE COOPERATIVES ARE TO BE PAID MONTHLY ON THE BASIS OF ESTIMATED BILLINGS WITH AN ADJUSTMENT AT THE END OF THE FISCAL YEAR SO AS TO PLACE THE PARTIES ON AN ACTUAL-COST BASIS. SINCE THERE IS NOT A SUFFICIENT AMOUNT AVAILABLE IN THE "CONTINUING FUND" FOR THE FISCAL YEAR 1954, TO PAY THE FULL AMOUNT OF THE CLAIMS, IT WOULD APPEAR PAYMENT THEREOF SHOULD BE MADE ON THE SAME BASIS AS THOUGH FUNDS HAD BEEN CONSIDERED AVAILABLE TO IMPLEMENT THE LEASE PURCHASE CONTRACTS DURING FISCAL YEAR 1954. IN OTHER WORDS, UNDER THE CONTRACT PROVISIONS EACH COOPERATIVE WOULD HAVE BILLED SOUTHWESTERN MONTHLY AND WOULD HAVE BEEN PAID MONTHLY UNTIL THE APPROPRIATED AMOUNT NOT NECESSARY FOR OTHER OBJECTS WAS EXHAUSTED. THEREFORE, IN DETERMINING THE AMOUNTS DUE THE CLAIMANTS, IT WOULD APPEAR THE SAME PROCEDURE SHOULD BE FOLLOWED THAT IS TO SAY, THE CLAIMS WOULD BE FOR SETTLEMENT ON THE BASIS OF THE AMOUNTS THAT WOULD HAVE ACCRUED TO THE CLAIMANTS MONTHLY UNDER THE CONTRACTS TO THE EXTENT OF AVAILABLE FUNDS. IN ANY MONTH WHERE THERE ARE NOT SUFFICIENT FUNDS AVAILABLE TO PAY FULL AMOUNTS DUE, THE CLAIMANTS WILL BE PAID ON A PRO RATA BASIS. THEREFORE, IT IS REQUESTED THAT YOU FURNISH US MONTHLY BILLINGS SHOWING AMOUNTS DUE SOUTHWESTERN FROM EACH OF THE COOPERATIVES INVOLVED FOR THE PERIOD JULY 1, 1953, TO JUNE 30, 1954, UNDER THE LEASE- PURCHASE CONTRACTS AND MONTHLY BILLINGS OF AMOUNTS DUE THE COOPERATIVES FROM SOUTHWESTERN FOR THE SAME PERIODS UNDER THE SAME CONTRACTS CALLING TO OUR ATTENTION ANY ERRORS THEREIN. * * *"

AS INDICATED FROM THE ABOVE-QUOTED EXCERPTS, THE REASON THAT THE FIVE G AND T COOPERATIVES WERE NOT PAID BY SOUTHWESTERN UNDER THE CONTRACTS DURING FISCAL YEAR 1954, APPEARS TO HAVE BEEN DUE TO AN ERRONEOUS BELIEF THAT NO PART OF ITS APPROPRIATION FOR THAT YEAR WAS AVAILABLE TO IMPLEMENT THE CONTRACTS. PRESUMABLY, THE TWO COOPERATIVES WHICH HAVE NOT SUBMITTED CLAIMS EITHER ARE NOT AWARE OF OUR DECISION OR (WHICH IS MORE LIKELY) WILL NOT BE ENTITLED TO PAYMENTS UNDER THE PAYMENT PROCEDURE SET FORTH THEREIN.

BE THAT AS IT MAY, IN VIEW OF THE HOLDING IN OUR DECISION OF NOVEMBER 8, IT APPEARS THAT THE FIVE G AND T COOPERATIVES REFERRED-TO IN YOUR DEPARTMENT'S LETTER ARE ENTITLED TO BE PAID (IF OTHERWISE ENTITLED) UNDER THE PROVISIONS OF THE CONTRACTS INVOLVED, TO THE EXTENT OF THE FUNDS AVAILABLE IN THE "CONTINUING FUND" FOR FISCAL YEAR 1954. IF THE GOVERNMENT NOW FAILS TO IMPLEMENT THE CONTRACTS TO THE EXTENT OF AVAILABLE FUNDS, THE GOVERNMENT WOULD BE IN DEFAULT UNDER THE CONTRACTS AND APPARENTLY LIABLE FOR DAMAGES, REGARDLESS OF WHETHER CLAIMS ARE FILED. THEREFORE, IF THE AVAILABLE FUNDS ARE EXHAUSTED IN PAYING THE THREE SUBMITTED CLAIMS (IT BEING UNDERSTOOD THAT THE FUNDS AVAILABLE ARE NOT SUFFICIENT TO PAY IN FULL SUCH CLAIMS) IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN OUR DECISION, AND SUBSEQUENTLY CLAIMS ARE RECEIVED FROM THE OTHER TWO COOPERATIVES, IT WOULD APPEAR THAT UNDER THE CONTRACTS THE GOVERNMENT WOULD BE LIABLE FOR ANY AMOUNTS THESE LATTER TWO COOPERATIVES WOULD HAVE BEEN PAID ORIGINALLY HAD MONIES IN THE CONTINUING FUND NOT BEEN CONSIDERED UNAVAILABLE TO IMPLEMENT THE CONTRACTS. ALSO, IF THE AMOUNTS NOW AVAILABLE TO IMPLEMENT THE CONTRACTS ARE EXPENDED IN FULL PAYING THE THREE SUBMITTED CLAIMS AND THE OTHER TWO COOPERATIVES ARE, IN FACT, ENTITLED TO PAYMENT FOR ELECTRICITY OR SERVICES UNDER THE CONTRACTS, THERE WOULD BE, IN EFFECT, OVERPAYMENTS TO THE THREE PAID COOPERATIVES TO THE EXTENT OF THE AMOUNTS DUE THE UNPAID COOPERATIVES. MOREOVER, SINCE AVAILABLE FUNDS ARE NOT SUFFICIENT TO PAY IN FULL THE THREE SUBMITTED CLAIMS, FAILURE TO FURNISH COPIES OF OUR DECISION TO THE OTHER TWO COOPERATIVES (AND REQUEST THE DATA AND INFORMATION NECESSARY TO DETERMINE WHETHER ANY AMOUNTS ARE DUE THESE COOPERATIVES UNDER THE CONTRACTS), WILL NOT ENTAIL ANY ADDED EXPENSE TO THE GOVERNMENT. INSTEAD, AS INDICATED ABOVE, FAILURE TO TAKE SUCH ACTION MIGHT WELL PREJUDICE THE GOVERNMENT.

UNDER THE FACTS AND CIRCUMSTANCES PRESENT IN THE INSTANT CASE, WE FEEL IT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT TO NOTIFY ALL FIVE G AND T COOPERATIVES OF OUR DECISION IN THIS MATTER, WITH THE REQUEST THAT THEY SUBMIT ALL DATA AND INFORMATION NECESSARY TO DETERMINE AMOUNTS DUE THEM UNDER THE CONTRACTS TO THE EXTENT OF AVAILABLE APPROPRIATIONS. IT IS OUR VIEW THAT SUCH ACTION WOULD BE IN DISCHARGE OF PROPER OFFICIAL DUTIES IN THIS CASE AND NOT A VIOLATION OF 18 U.S.C. 283. ACCORDINGLY, AND WHILE THAT STATUTE IS PENAL IN NATURE AND ANY FINAL DETERMINATION OF WHETHER THERE HAS BEEN A VIOLATION THEREOF IS A MATTER FOR THE DEPARTMENT OF JUSTICE RATHER THAN US, YOU ARE ADVISED THAT WE WILL NOT QUESTION ACTIONS BY EMPLOYEES OF YOUR DEPARTMENT IN FURNISHING COPIES OF OUR DECISION OF NOVEMBER 8, 1956, TO THE KAMO ELECTRIC COOPERATIVE, INC., AND SHO-ME POWER CORPORATION AND REQUESTING FROM THEM THE NECESSARY DATA AND INFORMATION.

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