B-122928, MARCH 8, 1955, 34 COMP. GEN. 432

B-122928, MARCH 8, 1955, 34 COMP. GEN. 432

PAYMENTS - ADVANCE - INTERIOR DEPARTMENT - INDIAN EDUCATIONAL PROGRAM THE AUTHORIZATION TO MAKE ADVANCE PAYMENTS CONTAINED IN THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1955, FOR " HEALTH, EDUCATION AND WELFARE SERVICES" HAS REFERENCE ONLY TO ADVANCE PAYMENTS FOR A BONA FIDE NEED DURING THE FISCAL YEAR 1955, AND, THEREFORE, THE APPROPRIATION MAY NOT BE OBLIGATED WITH AN ADVANCE PAYMENT TO COVER THE COST OF THAT PORTION OF SERVICES TO BE RENDERED BY THE STATE OF OREGON IN CONDUCTING AN EDUCATIONAL PROGRAM FOR INDIANS WHICH WILL EXTEND BEYOND THE FISCAL YEAR 1955.

COMPTROLLER GENERAL CAMPBELL TO THE SECRETARY OF THE INTERIOR, MARCH 8, 1955:

REFERENCE IS MADE TO LETTER OF FEBRUARY 14, 1955, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR, CONCERNING THE QUESTION AS TO THE AVAILABILITY BEYOND THE CURRENT FISCAL YEAR OF THE APPROPRIATION " HEALTH, EDUCATION AND WELFARE SERVICES" CONTAINED IN THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1955, PUBLIC LAW 465, APPROVED JULY 1, 1954, 68 STAT. 363.

A STATE PLAN FOR OPERATION OF THE KLAMATH SPECIAL EDUCATION AND TRAINING PROGRAM AND A PROPOSED AGREEMENT WITH THE STATE OF OREGON WERE ENCLOSED WITH THE LETTER. UNDER THE AGREEMENT, OREGON WOULD PROVIDE AN EDUCATIONAL PROGRAM AUTHORIZED UNDER THE PROVISIONS OF BOTH SECTION 26 OF THE ACT OF AUGUST 13, 1954, PUBLIC LAW 587, 83D CONGRESS, 68 STAT. 718, AND SECTION 13 (C) OF THE ACT OF AUGUST 13, 1954, PUBLIC LAW 588, 83D CONGRESS, 68 STAT. 724, 727. THOSE ACTS AUTHORIZE YOU, WITHIN THE LIMITS OF AVAILABLE APPROPRIATIONS, TO ENTER INTO AGREEMENTS WITH STATES TO UNDERTAKE A SPECIAL PROGRAM OF EDUCATION AND TRAINING OF MEMBERS OF CERTAIN TRIBES OF INDIANS PRIOR TO THE TERMINATION OF THE FEDERAL TRUST RELATIONSHIP TO THE AFFAIRS OF SUCH TRIBES AND THEIR MEMBERS. THE AGREEMENT WOULD REQUIRE OREGON TO SUBMIT TO THE BUREAU OF INDIAN AFFAIRS OPERATIONAL BUDGETS IN ADVANCE FOR APPROVAL. THESE BUDGETS WHEN AGREED UPON WOULD BECOME A PART OF THE AGREEMENT. THE AGREEMENT WOULD BE EFFECTIVE UNTIL TERMINATION OF FEDERAL SUPERVISION OVER THE INDIANS INVOLVED, SUBJECT TO A PROVISION THAT AN APPROVED BUDGET COULD BE CANCELED BY MUTUAL AGREEMENT AT ANY TIME PRIOR TO ITS COMPLETION.

IT IS STATED IN THE LETTER THAT THE STATE OF OREGON IS RELUCTANT TO UNDERTAKE THIS PROGRAM WITHOUT REASONABLE ASSURANCE THAT FUNDS CAN BE MADE AVAILABLE IN THIS FISCAL YEAR IN SUFFICIENT AMOUNT TO ASSURE THE CONTINUANCE OF THE PROGRAM BEYOND THE END OF FISCAL YEAR 1955. THEREFORE, AND SINCE THE APPROPRIATION AUTHORIZES PAYMENT "/IN ADVANCE OR FROM DATE OF ADMISSION)," THE SPECIFIC QUESTION PRESENTED IS WHETHER THE BUREAU OF INDIAN AFFAIRS MAY MAKE ADVANCE PAYMENTS FOR EACH OPERATIONAL BUDGET ON THE DATES OF APPROVAL OF SUCH BUDGETS FROM ANNUAL APPROPRIATIONS AVAILABLE ON THOSE DATES EVEN THOUGH THE BUDGETS COVER A PERIOD BEYOND THE FISCAL YEAR IN WHICH THE ADVANCE IS MADE. IT IS UNDERSTOOD THAT THE BUDGET IN THIS CASE WOULD COVER A PERIOD OF 18 MONTHS.

THE APPROPRIATION " HEALTH, EDUCATION AND WELFARE SERVICES, 1955" IS AVAILABLE FOR OBLIGATION ONLY DURING THE FISCAL YEAR 1955 AND, THEREFORE, LEGALLY MAY BE OBLIGATED ONLY FOR THE BONA FIDE NEEDS OF THAT FISCAL YEAR. SEE SECTION 3732 AND 3679, REVISED STATUTES, AS AMENDED, 41 U.S.C. 11 AND 31 U.S.C. 665, AND SECTION 1 OF THE ACT OF JULY 6, 1949, 63 STAT. 407, 31 U.S.C. 712A. THE REASONING CONSISTENTLY APPLIED BY THE COURTS IN HOLDING THAT LEASES UNDER A FISCAL-YEAR APPROPRIATION HAVE NO LEGAL EFFECT BEYOND SUCH FISCAL YEAR WOULD APPEAR TO BE EQUALLY APPLICABLE TO THE INSTANT PROPOSED AGREEMENT. SEE LEITER, ET AL., TRUSTEES V. UNITED STATES 271 U.S. 204; GOODYEAR TIRE AND RUBBER COMPANY V. UNITED STATES 276 U.S. 287, AND GAY STREET CORPORATION OF BALTIMORE, MARYLAND V. UNITED STATES, UNITED STATES COURT OF CLAIMS CONGRESSIONAL NO. 3-52, DECIDED JANUARY 11, 1955. ALSO SEE 28 COMP. GEN. 553. IT SEEMS CLEAR THAT HERE THE ONLY BONA FIDE NEED DURING THE FISCAL YEAR 1955 IS FOR THE PORTION OF THE EDUCATIONAL PROGRAM WHICH CAN ACTUALLY BE FURNISHED DURING SUCH FISCAL YEAR. THE AUTHORIZATION IN THE APPROPRIATION TO MAKE PAYMENTS IN ADVANCE HAS REFERENCE ONLY TO ADVANCE PAYMENTS FOR BONA FIDE NEEDS DURING THE FISCAL YEAR 1955 AND IN NO WAY EXTENDS THE PERIOD OF AVAILABILITY OF THE APPROPRIATION.