B-172155, AUG 13, 1971

B-172155, AUG 13, 1971

USE OF APPROPRIATED FUNDS TO PAY TELEPHONE TOLL CHARGES ADVANCE DECISION DENYING CLAIM OF SOUTH CENTRAL BELL TELEPHONE COMPANY FOR LONG DISTANCE TOLL CHARGES ON A CLASS B-1 (UNOFFICIAL USE) TELEPHONE PLACED IN AN AIRMAN'S BARRACKS FOR THE PRIVATE USE OF AIRMAN MICHAEL EDWIN SOLLERS. SECTION 679, TITLE 31 U.S. CODE, AND SECTION 680 OF TITLE 31 BOTH PROHIBIT THE USE OF APPROPRIATED FUNDS FOR PAYMENT OF NON-OFFICIAL TOLL CHARGES. CONSEQUENTLY, THE AIR FORCE MAY NOT PAY THE CLAIM.

TO LIEUTENANT MITCHELL:

BY LETTER OF MARCH 9, 1971, THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, FORWARDED FOR OUR CONSIDERATION YOUR REQUEST OF FEBRUARY 23, 1971, FOR AN ADVANCE DECISION ON THE CLAIM OF SOUTH CENTRAL BELL TELEPHONE COMPANY FOR LONG-DISTANCE TOLL CHARGES IN THE AMOUNT OF $223.85.

YOUR LETTER RELATES THAT IN ACCORDANCE WITH THE PROVISIONS OF AFM 100 22, CLASS B-1 (UNOFFICIAL USE) TELEPHONE SERVICE WAS APPLIED FOR AND INSTALLED IN THE AIRMEN BARRACKS FOR THE PERSONAL USE OF AIRMAN MICHAEL EDWIN SOLLERS. UNDER AF CONTRACT NO. AF33(038)-12379 AND COMMUNICATION SERVICE AUTHORIZATION NO. EGR-SODK-42C A SPECIAL BILLING NUMBER WAS ASSIGNED FOR IDENTIFICATION OF LONG-DISTANCE TOLLS ON THE COMMERCIAL BILL AND SUBSEQUENT RE-BILLING BY THE AIR FORCE TO THE CLASS B SUBSCRIBER. DURING THE PERIODS JANUARY 26, 1969, TO FEBRUARY 25, 1969, AND MARCH 26, 1969, TO APRIL 25, 1969, LONG-DISTANCE CALLS TOTALLING $223.85, WERE CHARGED TO AIRMAN SOLLERS' SPECIAL BILLING NUMBER FOR WHICH HE DISCLAIMED RESPONSIBILITY. IT APPEARS THAT ANOTHER AIRMAN USED THE PHONE AND SPECIAL BILLING NUMBER WITHOUT PERMISSION.

THE SOUTH CENTRAL BELL TELEPHONE COMPANY INSISTS THAT UNDER THE TERMS OF THE CONTRACT THE AIR FORCE IS RESPONSIBLE FOR ALL TOLL MESSAGES ORIGINATING AT THE BASE, AND THEREFORE SHOULD PAY THE TOLLS OF $223.85 CHARGED TO THE SPECIAL BILLING NUMBER - WHICH WERE DEDUCTED FROM THE COMPANY'S BILLS. THE QUESTION OF THE LIABILITY OF THE AIR FORCE FOR THE CHARGES IS RAISED IN LIGHT OF SECTION 679, TITLE 31 OF THE U.S. CODE, WHICH PROVIDES

" *** NO MONEY APPROPRIATED BY ANY ACT SHALL BE EXPENDED FOR TELEPHONE SERVICE INSTALLED IN ANY PRIVATE RESIDENCE OR PRIVATE APARTMENT OR FOR TOLLS OR OTHER CHARGES FOR TELEPHONE SERVICE FROM PRIVATE RESIDENCES OR PRIVATE APARTMENTS, EXCEPT FOR LONG-DISTANCE TELEPHONE TOLLS REQUIRED STRICTLY FOR THE PUBLIC BUSINESS *** ."

SEE, ALSO, 31 U.S.C. 680A

"*** NO PART OF ANY APPROPRIATION FOR ANY EXECUTIVE DEPARTMENT *** SHALL BE USED FOR THE PAYMENT OF LONG-DISTANCE TELEPHONE TOLLS EXCEPT FOR THE TRANSACTION OF PUBLIC BUSINESS WHICH THE INTERESTS OF THE GOVERNMENT REQUIRE TO BE SO TRANSACTED *** ."

THE USE OF APPROPRIATED FUNDS FOR THE PAYMENT OF THE UNOFFICIAL LONG DISTANCE CALLS IS PROHIBITED BY SECTIONS 679 AND 680A. THE SECTIONS ARE IN EFFECT A LEGISLATIVE LIMITATION ON THE CONTRACTUAL AUTHORITY OF THE DEPARTMENTS. OF EQUAL APPLICABILITY HEREIN ARE THE VIEWS EXPRESSED WITH REGARD TO SECTION 680A IN A DECISION OF SEPTEMBER 10, 1969 (B 165102), TO THE SOUTHWESTERN BELL TELEPHONE COMPANY. THE CONTENTION OF A CONTRACTUAL OBLIGATION ON THE PART OF THE AIR FORCE WAS REJECTED -

"YOUR SECOND CONTENTION IS THAT NOTWITHSTANDING THE OFFICIAL OR PERSONAL NATURE OF THE TELEPHONE CALL, THE AGENCY IS RESPONSIBLE 'FOR PAYMENT OF ALL USAGE OF THAT SERVICE.' WHILE IT WOULD APPEAR, AS A GENERAL RULE, THAT A SUBSCRIBER IS LIABLE FOR ALL LONG-DISTANCE MESSAGES ORIGINATING FROM HIS TELEPHONE IT HAS BEEN THE CONSISTENT POSITION OF THIS OFFICE THAT CONTRACTS WITH THE FEDERAL GOVERNMENT FOR TELEPHONE SERVICES MUST BE MADE SUBJECT TO THE PROVISIONS OF 31 U.S.C. 680A, AND THE GENERAL RULE IS THEREFORE INAPPLICABLE. SEE B-164699, JULY 5 (8), 1968."

AND IN A DECISION OF JULY 8, 1968 (B-164699), TO AN ACCOUNTING AND FINANCE OFFICER OF THE AIR FORCE IT WAS STATED -

"WE HAVE HELD IN SIMILAR CASES THAT CONTRACTS FOR TELEPHONE SERVICES MUST BE VIEWED AS HAVING BEEN MADE SUBJECT TO THE PROVISIONS OF 31 U.S.C. 680A AND THAT THE ACT CONTAINS NO AUTHORITY FOR ITS WAIVER BY AN OFFICER OR AN EMPLOYEE OF THE GOVERNMENT IN ANY CASE - NOR DOES ANY SUCH AUTHORITY OTHERWISE EXIST. CONSEQUENTLY, IN THE ABSENCE OF ACTUAL PRIOR COLLECTION FROM THE INDIVIDUALS RESPONSIBLE FOR THE AMOUNTS DUE FOR SAID CALLS, THERE APPEARS TO BE NO LEGAL BASIS FOR PAYING THE CLAIM. SEE B-36190, AUGUST 12, 1943, AND B-90487, NOVEMBER 29, 1949."

YOU ARE ADVISED THE CLAIM OF SOUTH CENTRAL BELL TELEPHONE COMPANY MAY NOT BE PAID BY THE AIR FORCE.