B-123514, MAY 13, 1955, 34 COMP. GEN. 599

B-123514, MAY 13, 1955, 34 COMP. GEN. 599

APPROPRIATIONS - RECLAMATION SERVICE - CONSTRUCTION OF SEWERAGE SYSTEM FOR USE OF GOVERNMENT AND GENERAL PUBLIC IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, THE BUREAU OF RECLAMATION MAY NOT EXECUTE A CONTRACT FOR THE CONSTRUCTION OF A SEWERAGE SYSTEM IN EXCESS OF THE CAPACITY REQUIRED BY THE GOVERNMENT TO BE USED JOINTLY BY A RECLAMATION PROJECT CAMP AND THE GENERAL PUBLIC EVEN THOUGH THE COST OF A LARGER SYSTEM WOULD BE ABOUT THE SAME.

COMPTROLLER GENERAL CAMPBELL TO THE SECRETARY OF THE INTERIOR, MAY 13, 1955:

IN LETTER DATED APRIL 1, 1955, THE UNDER SECRETARY OF THE INTERIOR REQUESTED A DECISION AS TO THE PROPRIETY OF EXECUTING A CONTRACT WITH THE TOWN OF GLENDO, WYOMING, PROVIDING, AMONG OTHER THINGS, FOR THE CONSTRUCTION BY THE UNITED STATES OF A "500-CAPACITY SEWERAGE SYSTEM" FOR JOINT USE BY THE GOVERNMENT AND THE 200 CITIZENS OF THE TOWN.

BY JOINT RESOLUTION OF JULY 16, 1954, 68 STAT. 486, THE BUREAU OF RECLAMATION WAS AUTHORIZED TO CONSTRUCT AND OPERATE THE GLENDO DAM AND POWER PLANT, GLENDO UNIT, AS PART OF THE MISSOURI RIVER BASIN PROJECT. IS INDICATED IN THE SUBMISSION THAT, IN CONNECTION WITH PROVIDING HOUSING FACILITIES FOR GOVERNMENT PERSONNEL CONCERNED WITH THE ADMINISTRATION OF THE PROJECT, IT HAS BEEN DECIDED, AFTER DISCUSSIONS, THAT THE BUREAU OF RECLAMATION SHOULD CONSTRUCT A CAMP FOR BUREAU PERSONNEL ON 10 ACRES OF LAND TO BE DONATED BY THE TOWN AND WHICH SITE IS ADJACENT TO THE TOWN LIMITS.

IT IS STATED THAT A 150-PERSON CAPACITY SEPTIC-TYPE SYSTEM WOULD BE ADEQUATE TO SERVE THE CAMP NEEDS FOR SEWAGE DISPOSAL. HOWEVER, IT IS PROPOSED, IN ORDER TO FULFILL THE REQUIREMENTS OF THE RESIDENTS OF THE TOWN, THAT THE GOVERNMENT CONSTRUCT A 500-PERSON CAPACITY SEWERAGE SYSTEM TO BE USED JOINTLY BY THE TOWN AND THE FEDERAL GOVERNMENT. IT IS REPORTED THAT THE COST OF THE 500-PERSON SYSTEM WOULD BE ABOUT THE SAME AS THE SMALLER SYSTEM. IN EXCHANGE FOR THE RIGHT TO USE THE SEWERAGE SYSTEM CONSTRUCTED BY THE UNITED STATES, THE TOWN WOULD OPERATE AND MAINTAIN THE SYSTEM IN PERPETUITY WITHOUT COST TO THE GOVERNMENT AND, IN ADDITION, WOULD FURNISH CERTAIN SERVICES TO THE CAMP AREA SUCH AS WATER, GAS SERVICE, STREET MAINTENANCE AND LIGHTING, AND FIRE AND POLICE PROTECTION.

IT IS STATED IN YOUR LETTER OF THE UNDER SECRETARY THAT IT IS THE CONSIDERED OPINION OF YOUR DEPARTMENT THAT THE PROVISION IN THE PROPOSED CONTRACT FOR THE CONSTRUCTION AND JOINT USE OF THE LARGER SYSTEM IS IN THE BEST INTEREST OF THE GOVERNMENT. THE PRIMARY JUSTIFICATION FOR THAT VIEW APPEARS TO BE THAT THE GOVERNMENT WOULD BE RELIEVED OF THE CONTINUING EXPENSE FOR OPERATION AND MAINTENANCE OF THE SYSTEM. WHILE IT IS CONCEDED IN THE LETTER OF APRIL 1 THAT THERE IS NO LAW SPECIFICALLY AUTHORIZING THE DEPARTMENT TO CONSTRUCT A FACILITY LARGER THAN FOR ITS ACTUAL NEEDS, IT IS SUGGESTED THAT THE EXECUTION OF THE PROPOSED CONTRACT IS AUTHORIZED UNDER THE BROAD AUTHORITY VESTED IN YOU UNDER THE PROVISIONS OF SECTIONS 7 AND 10 OF THE RECLAMATION ACT OF JUNE 17, 1902, 32 STAT. 388, 389, 43 U.S.C. 421, 373.

THE PRIMARY QUESTION FOR DETERMINATION HERE IS WHETHER THE APPROPRIATED FUNDS OF YOUR DEPARTMENT ARE AVAILABLE FOR THE CONSTRUCTION OF SEWERAGE FACILITIES IN EXCESS OF THE GOVERNMENT'S REQUIREMENTS SO AS TO MEET THE NEEDS OF THE INHABITANTS OF THE TOWN OF GLENDO. WE ARE OF THE OPINION THAT THAT QUESTION MUST BE ANSWERED IN THE NEGATIVE. THE PROPOSED USE OF APPROPRIATED FUNDS NECESSARILY INVOLVES SECTION 3678, REVISED STATUTES, 31 U.S.C. 28, WHICH PROVIDES THAT, EXCEPT AS OTHERWISE PROVIDED BY LAW, SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE, AND FOR NO OTHERS. THUS, IT IS APPARENT THAT THE DESIRABILITY OF AN EXPENDITURE DOES NOT MAKE AN APPROPRIATION AVAILABLE FOR SUCH EXPENDITURE IF IT IS NOT OTHERWISE AVAILABLE THEREFOR. THE ACCOUNTING OFFICERS HAVE HELD IT TO BE FUNDAMENTAL THAT FEDERAL AGENCIES CANNOT MAKE USE OF APPROPRIATED FUNDS TO MANUFACTURE PRODUCTS OR MATERIALS FOR, OR OTHERWISE SUPPLY SERVICES TO, PRIVATE PARTIES IN THE ABSENCE OF SPECIFIC AUTHORITY THEREFOR. 28 COMP. GEN. 38. IT WOULD SEEM BUT A LOGICAL EXTENSION OF THAT PRINCIPLE THAT THE EXPENDITURE OF APPROPRIATED FUNDS FOR THE CONSTRUCTION OF A GOVERNMENT FACILITY DESIGNED FOR USE BY PRIVATE PARTIES LIKEWISE IS PROHIBITED UNLESS SPECIFICALLY AUTHORIZED BY STATUTE.

IT IS RECOGNIZED THAT THE GOVERNMENT WILL RECEIVE CERTAIN TANGIBLE BENEFITS IN RETURN FOR ITS UNDERTAKING UNDER THE PROPOSED AGREEMENT. BUT THAT FACT HAS NOT BEEN REGARDED AS CONTROLLING IN SIMILAR CASES. FOR EXAMPLE, IT HAS BEEN HELD THAT THE PERFORMANCE OF SERVICES BY GOVERNMENT PERSONNEL FOR NON-FEDERAL OR PRIVATE AGENCIES INVOLVES AN IMPROPER USE OF APPROPRIATED FUNDS EVEN WHERE THE GOVERNMENT IS COMPENSATED THEREFOR OR REIMBURSED IN KIND. B-69238, JULY 13, 1948; 31 COMP. GEN. 624. AND SEE, PARTICULARLY, THE DECISION IN 32 COMP. GEN. 91, HOLDING THAT AGREEMENTS ENTERED INTO BETWEEN THE GOVERNMENT AND COUNTY OR MUNICIPAL AUTHORITIES CONTEMPLATING THE USE OF FEDERAL FIRE FIGHTING EQUIPMENT AND PERSONNEL BEYOND THE LIMITS OF UNITED STATES RESERVATIONS CONTRAVENED THE PROVISIONS OF 3678, REVISED STATUTES, NOTWITHSTANDING THE FACT THAT UNDER THE AGREEMENTS THE LOCAL GOVERNMENTAL AUTHORITIES WERE TO FURNISH FIRE- FIGHTING SERVICES TO THE GOVERNMENT RESERVATIONS. SPECIFIC STATUTORY AUTHORITY FOR SUCH AGREEMENTS NOW IS UNDER CONSIDERATION BY THE CONGRESS. (S. 1006 AND H.R. 6015, 84TH CONGRESS, FIRST SESSION).

NEITHER THE ACT OF JUNE 29, 1948, 62 STAT. 1129, APPROPRIATING FUNDS FOR THE MISSOURI RIVER BASIN PROJECT (INCLUDING THE GLENDO PROJECT) NOR THE CURRENT APPROPRIATION FOR CARRYING OUT THE FUNCTIONS OF THE BUREAU OF RECLAMATION, 67 STAT. 265, REASONABLY MAY BE CONSTRUED AS CONTEMPLATING THE CONSTRUCTION OF FACILITIES SUCH AS HERE INVOLVED FOR USE OF THE GENERAL PUBLIC, AND NO OTHER STATUTE HAS COME TO ATTENTION WHICH WOULD AUTHORIZE THE PROPOSED EXPENDITURE. WITH REFERENCE TO SECTIONS 7 AND 10 OF THE RECLAMATION ACT OF JUNE 17, 1902, REFERRED TO IN THE LETTER OF APRIL 1, WHILE IT IS TRUE THAT THERE IS VESTED IN THE SECRETARY BROAD AUTHORITY TO ACQUIRE RIGHTS AND PROPERTY AND TO PERFORM ANY AND ALL ACTS NECESSARY FOR CARRYING OUT THE PROVISIONS OF THE STATUTE, SUCH AUTHORITY DOES NOT APPEAR SUFFICIENT TO RENDER APPROPRIATED FUNDS AVAILABLE FOR THE PERFORMANCE OF A FUNCTION WHICH IS NOT AUTHORIZED.

THAT BOTH THE DEPARTMENT OF INTERIOR AND THE CONGRESS VIEWED AN EXPENDITURE SUCH AS PROPOSED AS IMPROPER WOULD SEEM TO BE INDICATED BY THE ENACTMENT OF PUBLIC LAW 832, 81ST CONGRESS, APPROVED SEPTEMBER 25, 1950, 64 STAT. 1031, WHICH AUTHORIZED THE SECRETARY OF THE INTERIOR TO TRANSFER TO THE TOWN OF MILLS, WYOMING, THE SEWERAGE SYSTEM CONSTRUCTED BY THE UNITED STATES IN AND ADJACENT TO THE TOWN. IT IS UNDERSTOOD THAT IN THAT CASE IT WAS RECOGNIZED THAT THERE WAS NO EXISTING STATUTORY AUTHORITY FOR THE BUREAU TO DISPOSE OF THE EXCESS SEWERAGE CAPACITY TO THE TOWN OF MILLS AND THAT SPECIAL LEGISLATION TO ACCOMPLISH THAT RESULT WAS NECESSARY. THINK THAT IN THIS CASE ALSO THERE SHOULD BE LEGISLATIVE SANCTION OF THE PROPOSED CONTRACT INSOFAR AS IT WOULD OBLIGATE THE UNITED STATES TO CONSTRUCT A LARGER CAPACITY SEWERAGE SYSTEM THAN THAT REQUIRED FOR THE PROJECT NEEDS FOR JOINT USE BY THE GOVERNMENT AND THE TOWN OF GLENDO.

IN VIEW OF THE FOREGOING, YOU ARE ADVISED THAT WE WOULD BE REQUIRED TO OBJECT TO THE PROPOSED CONTRACT IN THAT RESPECT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR.