B-133781, NOVEMBER 7, 1957, 37 COMP. GEN. 306

B-133781, NOVEMBER 7, 1957, 37 COMP. GEN. 306

VEHICLES - GOVERNMENT - DAMAGES - MOTOR POOL VEHICLES - PURCHASE PRICE RECOVERY LIMITATION THE PROVISO IN THE MOTOR VEHICLE POOL SECTION OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 40 U.S.C. 491 (D), WHICH PRECLUDES THE GENERAL SERVICES ADMINISTRATION FROM RECOVERING AT ONE TIME FROM THE REQUISITIONING AGENCY THE PURCHASE PRICE OF THE VEHICLE BUT REQUIRES RECOVERY THROUGH CHARGES FOR AMORTIZATION, DOES NOT PRECLUDE RECOVERY OF DAMAGES TO VEHICLES AS RESULT OF NEGLIGENCE OR MISUSE REGARDLESS OF WHETHER THE DAMAGES ARE MEASURED BY THE COST OF REPAIRS OR THE AMOUNT OF THE LOSS IN CASE THE VEHICLE CANNOT BE REPAIRED.

TO THE SECRETARY OF COMMERCE, NOVEMBER 7, 1957:

LETTER OF SEPTEMBER 11, 1957, ACKNOWLEDGED OCTOBER 2, FROM THE ASSISTANT SECRETARY FOR ADMINISTRATION, REQUESTS A DECISION WHETHER THE GENERAL SERVICES ADMINISTRATION, AS THE OWNER OF A PASSENGER MOTOR VEHICLE AND AS OPERATOR OF THE DENVER FEDERAL CENTER MOTOR VEHICLE POOL PURSUANT TO SECTION 211 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 40 U.S.C. 491, AS AMENDED BY THE ACT OF SEPTEMBER 1, 1954, PUBLIC LAW 766, 68 STAT. 1126, 40 U.S.C. 491, IS ENTITLED TO REIMBURSEMENT FOR DAMAGES TO THE VEHICLE RESULTING FROM ITS NEGLIGENT OPERATION BY AN EMPLOYEE OF THE BUREAU OF PUBLIC ROADS.

SECTION 211 OF THE CITED ACT PROVIDES:

(B) SUBJECT TO REGULATIONS ISSUED BY THE PRESIDENT * * * THE ADMINISTRATOR SHALL * * * (2) PROVIDE FOR THE ESTABLISHMENT, MAINTENANCE AND OPERATION (INCLUDING SERVICING AND STORAGE) OF MOTOR VEHICLE POOLS OR SYSTEMS FOR TRANSPORTATION OF PROPERTY OR PASSENGERS, AND FOR FURNISHING SUCH MOTOR VEHICLE AND RELATED SERVICES TO EXECUTIVE AGENCIES. * * *

(D) THE GENERAL SUPPLY FUND * * * SHALL BE AVAILABLE FOR USE BY OR UNDER THE DIRECTION AND CONTROL OF THE ADMINISTRATOR FOR PAYING ALL ELEMENTS OF COST (INCLUDING THE PURCHASE OR RENTAL PRICE OF MOTOR VEHICLES AND OTHER RELATED EQUIPMENT AND SUPPLIES) INCIDENT TO THE ESTABLISHMENT, MAINTENANCE, AND OPERATION (INCLUDING SERVICING AND STORAGE) OF MOTOR VEHICLE POOLS * * *. PAYMENTS BY REQUISITIONING AGENCIES SO SERVED SHALL BE AT PRICES FIXED BY THE ADMINISTRATOR AT LEVELS WHICH WILL RECOVER SO FAR AS PRACTICABLE ALL SUCH ELEMENTS OF COSTS. PROVIDED, THAT THE PURCHASE PRICE OF MOTOR VEHICLES * * * SHALL BE RECOVERED ONLY THROUGH CHARGE FOR THE COST OF AMORTIZATION: * * *

THE REGULATIONS OF THE PRESIDENT ISSUED ON NOVEMBER 30, 1954, PURSUANT TO SUBSECTION 211 (B), 40 U.S.C. 471 NOTE, ARE CONTAINED IN EXECUTIVE ORDER NO. 10579, 19 F.R. 7925 ( DI), SECTION 11 OF WHICH PROVIDES:

SEC. 11. SUPPLEMENTARY REGULATIONS. THE ADMINISTRATOR SHALL, AFTER CONSULTATION WITH THE EXECUTIVE AGENCIES CONCERNED AND WITH DUE REGARD TO THEIR PROGRAM ACTIVITIES, ISSUE SUCH SUPPLEMENTARY REGULATIONS OF GENERAL APPLICABILITY TO THE EXECUTIVE AGENCIES CONCERNED AS ARE NECESSARY FOR THE EFFECTIVE AND ECONOMICAL OPERATION OF POOLS OR SYSTEMS UNDER THE ACT.

THE SUPPLEMENTARY REGULATIONS OF THE ADMINISTRATOR OF GENERAL SERVICES ARE CONTAINED IN GSA PERSONAL PROPERTY MANAGEMENT REGULATIONS I-V-301.00 TO 309.04. SUBSECTION 308.04 OF THESE REGULATIONS PROVIDES:

ABUSIVE USE OR NEGLIGENT DAMAGE. WHENEVER A MOTOR VEHICLE IS DAMAGED THROUGH ABUSE, NEGLIGENCE, MISUSE, OR DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL OR NARCOTICS, THE AGENCY EMPLOYING THE OPERATOR OF THE VEHICLE WILL BE FURNISHED A COMPLETE STATEMENT THEREOF AND SHALL BE RESPONSIBLE FOR THE DAMAGE. ALL COSTS RESULTING FROM SUCH DAMAGE WILL BE BILLED TO THE AGENCY EMPLOYING SUCH OPERATOR.

SECTION 211 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, PROVIDES SPECIFICALLY THAT THE REQUISITIONING AGENCIES SO SERVED SHALL MAKE PAYMENTS AT PRICES FIXED BY THE ADMINISTRATOR AT LEVELS WHICH WILL RECOVER SO FAR AS PRACTICABLE "ALL ELEMENTS OF COST (INCLUDING THE PURCHASE OR RENTAL PRICE OF MOTOR VEHICLES AND OTHER RELATED EQUIPMENT AND SUPPLIES) INCIDENT TO THE ESTABLISHMENT, MAINTENANCE, AND OPERATION (INCLUDING SERVICING AND STORAGE) OF MOTOR VEHICLE POOLS OR SYSTEMS FOR TRANSPORTATION OF PROPERTY OR PASSENGERS.' THERE CAN BE NO QUESTION BUT THAT THE COSTS OF MAKING REPAIRS TO VEHICLES DAMAGED WHILE BEING OPERATED IN A MOTOR VEHICLE POOL (OR THE AMOUNT OF THE LOSS WHERE THE VEHICLE IS INCAPABLE OF BEING REPAIRED) ARE ELEMENTS OF COST INCIDENT TO THE OPERATION OF SUCH MOTOR VEHICLE POOL.

UNDER THE APPLICABLE LAW AND EXECUTIVE ORDER NO. 10579, THE ADMINISTRATOR OF GENERAL SERVICES HAS ISSUED GSA REGULATION I-V-308.04 WHICH REQUIRES THE AGENCY EMPLOYING THE OPERATOR OF A VEHICLE ASSIGNED FROM A MOTOR VEHICLE POOL TO BE RESPONSIBLE FOR ANY DAMAGE TO THE VEHICLE RESULTING FROM ABUSE, NEGLIGENCE, OR MISUSE. THE REGULATION IS WITHIN THE SCOPE OF THE APPLICABLE LAW AND REGULATIONS OF THE PRESIDENT WHICH SPECIFICALLY AUTHORIZE ITS ISSUANCE AND, THEREFORE, MUST BE REGARDED AS A STATUTORY REGULATION HAVING THE FORCE AND EFFECT OF LAW.

ACCORDINGLY, SINCE THE DAMAGE TO THE VEHICLE IN QUESTION CONCEDEDLY WAS CAUSED BY ITS NEGLIGENT OPERATION BY AN EMPLOYEE OF THE BUREAU OF PUBLIC ROADS, IT MUST BE CONCLUDED THAT THE GENERAL SERVICES ADMINISTRATION IS ENTITLED TO REIMBURSEMENT OF THE AMOUNT OF THE DAMAGE FROM THE BUREAU OF PUBLIC ROADS. THE PROVISO IN SECTION 211 (D) OF THE ACT, 40 U.S.C. 491 (D) MERELY PRECLUDES GSA FROM RECOVERING AT ONE TIME THE PURCHASE PRICE OF A VEHICLE TO BE USED IN A POOL BY CHARGING SUCH EXPENSE TO A REQUISITIONING AGENCY BUT PERMITS SUCH RECOVERY THROUGH CHARGES FOR AMORTIZATION. IT IN NO WAY PREVENTS RECOVERY OF DAMAGES TO VEHICLES THROUGH NEGLIGENCE OR MISUSE WHETHER SUCH DAMAGES BE MEASURED BY THE COSTS OF REPAIRS OR THE AMOUNT OF THE LOSS WHERE THE VEHICLE IS INCAPABLE OF BEING REPAIRED.