B-134014, NOVEMBER 7, 1957, 37 COMP. GEN. 308

B-134014, NOVEMBER 7, 1957, 37 COMP. GEN. 308

VEHICLES - GOVERNMENT - DAMAGE - MOTOR POOL VEHICLES - REQUISITIONING AGENCY LIABILITY COSTS OF REPAIRS TO GENERAL SERVICES ADMINISTRATION MOTOR POOL VEHICLES DAMAGED BY AN EMPLOYEE OF THE REQUISITIONING AGENCY, WITH OR WITHOUT FAULT OR NEGLIGENCE OF THE EMPLOYEE TO WHOM THE VEHICLE IS ASSIGNED, ARE CONSIDERED INCIDENT TO THE OPERATION OF A MOTOR VEHICLE POOL AND ARE REIMBURSABLE TO THE GENERAL SERVICES ADMINISTRATION BY THE REQUISITIONING AGENCY UNDER SECTION 211 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 40 U.S.C. 491, AND THE REGULATIONS ISSUED PURSUANT THERETO WHICH PROVIDE FOR PAYMENT OF DAMAGE CLAIMS.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, NOVEMBER 7, 1957:

YOUR LETTER OF OCTOBER 3, 1957, PRESENT TWO QUESTIONS FOR DECISION ARISING IN THE OPERATION OF MOTOR VEHICLE POOLS UNDER SECTION 211 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 AS AMENDED BY THE ACT OF SEPTEMBER 1, 1954, PUBLIC LAW 766, 68 STAT. 1126, 40 U.S.C. 491.

A MOTOR VEHICLE IN A GENERAL SERVICES ADMINISTRATION OPERATED MOTOR VEHICLE POOL WAS ASSIGNED TO AN EMPLOYEE OF THE NAVAL AIR MATERIAL CENTER, PHILADELPHIA NAVAL BASE. WHILE THE CAR WAS PROPERLY PARKED IT WAS BACKED INTO BY A BLIMP-TOWING MECHANICAL MULE OPERATED BY AN EMPLOYEE OF THE NAVAL AIR MATERIAL UNIT. YOUR LETTER STATES THAT IT APPEARS THAT THE BLIMP-TOWING MULE WAS NEGLIGENTLY OPERATED AND SUCH NEGLIGENCE HAS NOT BEEN QUESTIONED BY THE NAVY DEPARTMENT.

THE COST OF REPAIRING THE VEHICLE WAS $118.73 AND HEADQUARTERS FIRST NAVAL DISTRICT, BOSTON, MASSACHUSETTS, WAS REQUESTED TO REIMBURSE GENERAL SERVICES ADMINISTRATION. PAYMENT WAS DENIED ON THE BASIS OF OUR DECISION PUBLISHED AT 25 COMP. GEN. 49 WHEREIN THERE WAS APPLIED THE GENERAL RULE THAT, IN THE ABSENCE OF SPECIFIC PROVISIONS OF LAW OTHERWISE, THE FUNDS OF GOVERNMENT DEPARTMENTS AND AGENCIES ARE NOT AVAILABLE FOR PAYMENT OF CLAIMS FOR DAMAGES TO THE PROPERTY OF OTHER GOVERNMENT DEPARTMENTS AND AGENCIES. YOU REQUEST A DECISION AS TO THE PROPRIETY OF PAYMENT BY THE NAVY DEPARTMENT TO YOUR AGENCY UNDER THE FOLLOWING CIRCUMSTANCES.

(1) WHERE, AS IN THE PRESENT CASE, THE MOTOR POOL VEHICLE WAS DAMAGED BY THE NAVY DEPARTMENT BUT THROUGH NO FAULT OR NEGLIGENCE OF THE NAVY DEPARTMENT EMPLOYEE TO WHOM THE CAR WAS ASSIGNED.

(2) WHERE, IN A HYPOTHETICAL CASE, A MOTOR POOL VEHICLE IS DAMAGED BY THE NAVY DEPARTMENT AS THE RESULT OF THE CARELESSNESS OR NEGLIGENCE OF A NAVY DEPARTMENT EMPLOYEE TO WHOM THE CAR IS ASSIGNED.

SECTION 211 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 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), ARE CONTAINED IN EXECUTIVE ORDER NO. 10579, NOVEMBER 30, 1954, 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:

308.04. 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 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 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. THIS 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.

SINCE THE LAW AND REGULATIONS HERE INVOLVED SPECIFICALLY PROVIDE FOR THE PAYMENT OF CLAIMS FOR DAMAGES IN CASES FALLING WITHIN THE PROVISIONS OF THE REGULATION, THE RULE APPLIED IN THE DECISION PUBLISHED AT 25 COMP. GEN. 49 IS NOT FOR APPLICATION. IT MUST BE CONCLUDED THAT THE GENERAL SERVICES ADMINISTRATION IS ENTITLED TO REIMBURSEMENT IN SUCH CASES.

THE REGULATIONS MAKE NO DISTINCTION BETWEEN DAMAGE CAUSED BY THE NEGLIGENCE OF A NAVY DEPARTMENT EMPLOYEE TO WHOM THE VEHICLE IS ASSIGNED AND DAMAGE CAUSED BY THE NEGLIGENCE OF SOME OTHER EMPLOYEE OF THE NAVY DEPARTMENT. THE NAVY DEPARTMENT WOULD BE RESPONSIBLE FOR THE DAMAGE IN EITHER CASE.