B-122516, MAY 16, 1955, 34 COMP. GEN. 605

B-122516, MAY 16, 1955, 34 COMP. GEN. 605

PROJECTS - COST OF ACQUIRING TITLE - REIMBURSEMENT; CLAIMS - STATUTES OF LIMITATION UNDER SECTION 2 OF THE FLOOD CONTROL ACT OF 1938, WHICH PROVIDES THAT LOCAL AGENCIES SHALL BE REIMBURSED WITHOUT REGARD TO ANY RESTRICTIONS, LIMITATIONS OR PRIOR CONSENT PROVIDED BY OTHER ACTS, THE LOS ANGELES COUNTY FLOOD CONTROL DISTRICT MAY BE REIMBURSED FOR REASONABLE EXPENDITURES INCURRED IN ACQUIRING TITLE TO LANDS, EASEMENTS AND RIGHTS-OF -WAY FOR IMPROVEMENT OF THE LOS ANGELES RIVER AUTHORIZED BY THE FLOOD CONTROL ACT OF 1936, NOTWITHSTANDING ASSURANCES MADE BY THE DISTRICT THAT TITLE WOULD BE PROVIDED WITHOUT COST TO THE UNITED STATES. A CLAIM WHICH BY STATUTE IS NOT PAYABLE UNTIL ITS VALIDITY IS DETERMINED BY A DESIGNATED AGENCY DOES NOT ACCRUE UNTIL THE DETERMINATION HAS BEEN MADE AND, THEREFORE, CLAIMS FOR COSTS OF ACQUIRING TITLE TO LANDS, EASEMENTS AND RIGHTS-OF-WAY FOR IMPROVEMENT OF THE LOS ANGELES RIVER AUTHORIZED BY THE FLOOD CONTROL ACT OF 1938, OR PRIOR LEGISLATION, MAY BE PRESENTED UNDER THE ACT OF OCTOBER 9, 1940, WITHIN 10 YEARS AFTER THEY ARE DEEMED REASONABLE BY THE SECRETARY OF WAR AND THE CHIEF OF ENGINEERS PURSUANT TO SECTION 2 OF THE FLOOD CONTROL ACT.

COMPTROLLER GENERAL CAMPBELL TO THE SECRETARY OF THE ARMY, MAY 16, 1955:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 6, 1955, TRANSMITTING AN INVOICE SUBMITTED BY THE LOS ANGELES COUNTY FLOOD CONTROL DISTRICT, LOS ANGELES, CALIFORNIA, REPORTEDLY COVERING ACTUAL EXPENDITURES IN CONNECTION WITH THE ACQUISITION OF TITLE TO LANDS, EASEMENTS AND RIGHTS OF-WAY FOR IMPROVEMENT OF THE LOS ANGELES RIVER, FROM DAYTON AVENUE TO LOS FELIZ BOULEVARD FOR THE PERIOD OF JULY 1, 1936, TO DECEMBER 31, 1951. YOU REQUEST A DECISION AS TO WHETHER PAYMENT MAY BE MADE TO THE DISTRICT FOR THE EXPENDITURES SHOWN BY THE INVOICE LESS THE AMOUNT FOR DISALLOWANCE REVEALED BY YOUR AUDIT.

YOUR LETTER STATES THAT IMPROVEMENT OF THE LOS ANGELES RIVER WAS AUTHORIZED BY THE FLOOD CONTROL ACT OF 1936, 49 STAT. 1570, AND THAT THE DISTRICT SUBMITTED ASSURANCES AS REQUIRED BY THE ACT THAT ALL LANDS, EASEMENTS, AND RIGHTS-OF-WAY NECESSARY FOR THE PROJECT WOULD BE PROVIDED WITHOUT COST TO THE UNITED STATES. FURTHER, YOUR LETTER STATES THAT THE INVOICE, DATED AUGUST 29, 1952, WAS PRESENTED PURSUANT TO SECTION 2 OF THE FLOOD CONTROL ACT OF 1938, 52 STAT. 1215, AND THAT THE ITEMS COVERED BY THE INVOICE HAD NOT PREVIOUSLY BEEN PRESENTED OR PAID; BUT THAT THE DISTRICT DID INFORM THE GOVERNMENT, BY LETTER DATED MAY 27, 1946, OF THE APPROXIMATE AMOUNT EXPENDED IN CONNECTION WITH THE ACQUISITION OF LAND FOR THE PROJECT, THE AMOUNT BEING SUBJECT TO AUDIT BY THE GOVERNMENT AS BILLS OR INVOICES WERE PRESENTED.

SECTION 2 OF THE FLOOD CONTROL ACT OF 1938, 52 STAT. 1215, PROVIDES IN PERTINENT PART AS OLLOWS:

THAT IN CASE OF ANY DAM AND RESERVOIR PROJECT, OR CHANNEL IMPROVEMENT, OR CHANNEL RECTIFICATION PROJECT FOR FLOOD CONTROL, HEREIN AUTHORIZED OR HERETOFORE AUTHORIZED BY THE ACT OF JUNE 22, 1936 * * *, AS AMENDED, * * * TITLE TO ALL LANDS, EASEMENTS, AND RIGHTS-OF WAY FOR SUCH PROJECT SHALL BE ACQUIRED BY THE UNITED STATES OR BY STATES, POLITICAL SUBDIVISIONS THEREOF OR OTHER RESPONSIBLE LOCAL AGENCIES AND CONVEYED TO THE UNITED STATES, AND PROVISIONS (A), (B), AND (C) OF SECTION 3 OF SAID ACT OF JUNE 22, 1936, SHALL NOT APPLY THERETO. NOTWITHSTANDING ANY RESTRICTIONS, LIMITATIONS, OR REQUIREMENT OF PRIOR CONSENT PROVIDED BY ANY OTHER ACT, THE SECRETARY OF WAR IS HEREBY AUTHORIZED AND DIRECTED TO ACQUIRE IN THE NAME OF THE UNITED STATES TITLE TO ALL LANDS, EASEMENTS, AND RIGHTS-OF-WAY NECESSARY FOR ANY DAM AND RESERVOIR PROJECT OR CHANNEL IMPROVEMENT OR CHANNEL RECTIFICATION PROJECT FOR FLOOD CONTROL, WITH FUNDS HERETOFORE OR HEREAFTER APPROPRIATED OR MADE AVAILABLE FOR SUCH PROJECTS, AND STATES, POLITICAL SUBDIVISIONS THEREOF, OR OTHER RESPONSIBLE LOCAL AGENCIES, SHALL BE GRANTED AND REIMBURSED FOR SUCH FUNDS, SUMS EQUIVALENT TO ACTUAL EXPENDITURES DEEMED REASONABLE BY THE SECRETARY OF WAR AND THE CHIEF OF ENGINEERS AND MADE BY THEM IN ACQUIRING LANDS, EASEMENTS, AND RIGHTS-OF- WAY FOR ANY DAM AND RESERVOIR PROJECT, OR ANY CHANNEL IMPROVEMENT OR CHANNEL RECTIFICATION PROJECT FOR FLOOD CONTROL HERETOFORE OR HEREIN AUTHORIZED * * *. ( ITALICS SUPPLIED.)

IT IS CLEAR THAT UNDER THE ACT OF 1938 THE DISTRICT MAY BE REIMBURSED FOR REASONABLE EXPENDITURES ACTUALLY MADE IN ACQUIRING LANDS, EASEMENTS AND RIGHTS-OF-WAY FOR THE PROJECT, NOTWITHSTANDING THE ASSURANCE MADE BY THE DISTRICT PURSUANT TO THE FLOOD CONTROL ACT OF 1936 THAT THE LANDS, EASEMENTS AND RIGHTS-OF-WAY WOULD BE PROVIDED WITHOUT COST TO THE UNITED STATES. THE FLOOD CONTROL ACT OF 1938 PROVIDES THAT "PROVISIONS (A), (B), AND (C) OF SECTION 3 OF SAID ACT OF JUNE 22, 1936, SHALL NOT APPLY THERETO," AND THAT LOCAL AGENCIES SHALL BE REIMBURSED " NOTWITHSTANDING ANY RESTRICTIONS, LIMITATIONS, OR REQUIREMENT OF PRIOR CONSENT PROVIDED BY ANY OTHER ACT.'

MANY OF THE EXPENDITURES CONTAINED IN THE INVOICE WERE MADE MORE THAN TEN YEARS AGO. THERE IS FOR CONSIDERATION WHETHER ANY CLAIM PRESENTED BY THE DISTRICT AS A RESULT OF SUCH EXPENDITURES IS NOT BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, PROVIDING THAT EVERY CLAIM COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE "SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.' WHERE BY STATUTE A CLAIM IS NOT PAYABLE UNTIL THE VALIDITY THEREOF HAS BEEN DETERMINED BY A DESIGNATED AGENCY OF THE GOVERNMENT, THE CLAIM DOES NOT ACCRUE UNTIL SUCH DETERMINATION HAS BEEN MADE. SEE UNITED STATES V. LOUISIANA, 123 U.S. 32; BRISTER AND KOESTER LUMBER CORP. V. UNITED STATES, 188 F.2D 986; PENN BRIDGE COMPANY V. UNITED STATES 71 C.1CLS. 273; 20 COMP. GEN. 734, 738. SINCE THE FLOOD CONTROL ACT OF 1938 PROVIDES THAT LOCAL AGENCIES SUCH AS THE DISTRICT SHALL BE REIMBURSED "SUMS EQUIVALENT TO ACTUAL EXPENDITURES DEEMED REASONABLE BY THE SECRETARY OF WAR AND THE CHIEF OF ENGINEERS," NO CLAIM ACCRUED UNTIL THE SECRETARY OF THE ARMY AND THE CHIEF OF ENGINEERS FOUND THE EXPENDITURES REASONABLE. THE DATE OF SUCH FINDING CANNOT BE ASCERTAINED FROM THE PRESENT RECORD BUT APPARENTLY DID NOT ANTEDATE THE SUBMISSION OF THE INVOICE BY THE DISTRICT ON OR AFTER AUGUST 29, 1952, UNLESS A FINDING WAS MADE AS A RESULT OF THE DISTRICT'S LETTER OF MAY 27, 1946, CITED ABOVE. IN EITHER EVENT, NO PART OF THE CLAIM COULD HAVE FIRST ACCRUED MORE THAN TEN YEARS AGO WITHIN THE CONTEMPLATION OF THE ACT OF OCTOBER 9, 1940.

THEREFORE, PAYMENT MAY BE MADE TO THE LOS ANGELES FLOOD CONTROL DISTRICT FOR ACTUAL EXPENDITURES IN CONNECTION WITH THE ACQUISITION OF TITLE TO LANDS, EASEMENTS AND RIGHTS-OF-WAY FOR THE LOS ANGELES RIVER PROJECT TO THE EXTENT THEY ARE DEEMED REASONABLE PURSUANT TO THE FLOOD CONTROL ACT OF 1938 AND ARE OTHERWISE CORRECT. IN THIS CONNECTION, ATTENTION IS INVITED TO THE ADMINISTRATIVE AUDITOR'S REPORT OF DECEMBER 18, 1952, QUESTIONING THE PROPRIETY OF INDIRECT CHARGES TOTALING $40,793.27 ON THE BASIS THAT THE PERCENTAGES USED DO NOT CONFORM WITH RATES IN PREVIOUS REIMBURSEMENT BILLS FROM THE LOS ANGELES FLOOD CONTROL DISTRICT.

THE INVOICE AND DOCUMENTS WHICH ACCOMPANIED YOUR SUBMISSION ARE ENCLOSED.