B-198713.4, Dec 11, 1989

B-198713.4, Dec 11, 1989

APPROPRIATIONS/FINANCIAL MANAGEMENT - Statutes of limitation - Claims Against Government - Administrative regulations - Modification DIGEST: A final rule is issued for publication in the Federal Register amending 4 CFR part 31 to provide that claims against the government which are within GAO's jurisdiction may be filed with the federal agency concerned for purposes of tolling the 6-year limitations period is 31 U.S.C. Sec. 3702(b) (1982). The final rule follows earlier publication of an interim rule on this subject and is effective as of June 15, 1989, the publication date of the interim rule (54 FR 25437).

Billing Code 1610-01

GENERAL ACCOUNTING OFFICE

4 CFR Part 31

Claims Against the United States; General Procedure:

SUMMARY: This final rule amends the provisions of the General Accounting Office's claims regulations concerning the Barring Act, 31 U.S.C. 3702(b) (1982). Under the prior regulations a claim had to be filed with the General Accounting Office (GAO) within 6 years after the claim accrued in order to be timely filed within the limitations period established by the Barring Act. This amendment provides that a claim is considered timely filed for purposes of the Barring Act when the claim is filed either with GAO or with the agency whose activities gave rise to the claim within 6 years after the claim accrues. Since this amendment relieved a restriction on the filing of claims, immediate implementation was desirable, and we issued it as an interim rule on June 15, 1989, with a 60 -day comment period (54 FR 25437). We have considered the comments received and taken them into account in developing a final rule.

This rule also makes editorial changes to update 4 CFR Part 31 and bring it into conformance with existing administrative practices of the General Accounting Office.

EFFECTIVE DATE: This final rule is effective with respect to claims not barred by 31 U.S.C. 3702(b) as of June 15, 1989.

FOR FURTHER INFORMATION CONTACT: Robert L. Higgins, Associate General Counsel, at FTS 275-6410 or commercial (202) 275-6410.

SUPPLEMENTARY INFORMATION: By notice published in the Federal Register on June 15, 1989, the General Accounting Office issued an interim rule which provided that the timely filing of a claim with the individual federal agency involved is sufficient to satisfy the filing requirements of 31 U.S.C. 3702(b). The so-called Barring Act, 31 U.S.C. 3702(b) (1982), provides that, with certain exceptions, a claim within the settlement jurisdiction of the General Accounting Office "must be received by the Comptroller General within 6 years after the claim accrues. ..." Since enactment of the Barring Act in 1940, we have required that such claims be filed directly with GAO within the allowed 6 years. Therefore, claims filed with any agency other than GAO did not satisfy the filing requirement of the Barring Act.

We no longer believe this requirement is warranted in light of the fact that under current practice, claimants are encouraged to file their claims initially with the particular agency involved in the matter. We believe the purpose of the Barring Act is served if a claim is filed within the statutory 6-year period, either with GAO or with the agency where the claim arose and which will initially adjudicate it.

No written comments were received in response to our request for comments on the interim rule. Several telephone comments and inquiries were received and have been considered.

One question related to the effective date of the new rule. As stated above and in the interim rule, the effective date is June 15, 1989, with respect to any claim not barred by 31 U.S.C. 3702(b) prior to that date. Thus, any claim that accrued before June 15, 1983, is time-barred unless it was filed with GAO within 6 years after the date it accrued. However, a claim that accrued on or after June 15, 1983, is not time-barred if it was filed either with the agency involved or with GAO within the applicable 6-year period. If such a claim was filed with the agency involved before June 15, 1989, the claim need not be filed with GAO for purposes of tolling the statute, but will be treated as if it were filed with GAO on June 15, 1989.

Another question raised was whether the statement in section 31.4 of the interim rule that "claims which cannot be resolved by the department or agency shall be transmitted to the Claims Group, General Accounting Office, for resolution" was intended to preclude claimants from appealing agency determinations to GAO. It was not so intended. A claimant has always had the right to file a claim with GAO if he or she is not satisfied with the agency's determination or resolution of the claim. Also, agencies may continue to refer doubtful claims to GAO for resolution. The intent of section 31.4 is simply to make it clear that a claim should be initially filed with the department or agency involved in the subject matter and that that department or agency should attempt to resolve the dispute. Both the agency and the claimant continue to have access to GAO to settle doubtful or disputed claims. Section 31.4 has been revised to clarify this issue.

Accordingly, GAO's claims regulations in 4 CFR Part 31 are amended to provide that a claim, within GAO's settlement jurisdiction, which is not time-barred prior to June 15, 1989, and which is received within the statutory 6-year period by the agency whose program or activity gave rise to the claim, shall be treated as having been timely filed for purposes of the Barring Act. Agencies are urged to develop procedures to ensure that the date of receipt is clearly recorded to avoid disputes over the filing date.

List of Subjects in 4 CFR Part 31

Accounting, Claims, Filing procedures, Government employees, Military personnel

For the reasons set forth in the preamble, 4 CFR Part 31 is amended as follows:

PART 31 - CLAIMS AGAINST THE UNITED STATES; GENERAL PROCEDURE

1. The authority citation for Part 31 continues to read as follows:

Authority: 31 U.S.C. 711. Interpret or apply 31 U.S.C. 3702.

Sec. 31.1 (Amended)

2. The first sentence of Sec. 31.1 is amended by adding the words "or in the agency out of whose activities the claim arose" after the words "the General Accounting Office".

Sec. 31.3 (Amended)

3. The second sentence of Sec. 31.3 is revised to read as follows: "See Part 11 of this chapter".

4. Section 31.4 is revised to read as follows:

Sec. 31.4 Where claims should be filed, Appeals

A claimant should file his or her claim with the administrative department or agency out of whose activities the claim arose. The agency shall initially adjudicate the claim. If the claimant is not satisfied with the agency's determination, he or she may appeal that determination to the Claims Group, General Accounting Office. Claims which cannot be resolved by the department or agency shall be transmitted to the Claims Group, General Accounting Office, for resolution. Claims referred by agencies or by claimants to the General Accounting Office, or any correspondence regarding a claim, should be addressed to:

Claims Group

U.S. General Accounting Office

Washington, DC 20548.

5. Section 31.5, paragraph (a), is revised to read as follows:

Sec. 31.5 Statutory limitations on claims

(a) Statutory limitations relating to claims generally. All claims against the United States Government, except as otherwise provided by law, are subject to the 6-year statute of limitations contained in 31 U.S.C. 3702(b). To satisfy the statutory limitation, a claim must be received by the General Accounting Office, or by the department or agency out of whose activities the claim arose, within 6 years from the date the claim accrued. The burden of establishing compliance with the statute of limitations rests with the claimant.

Sec. 31.6 (Amended)

6. Section 31.6 is amended by removing the words "Accounting and Financial Management Division" in the section heading and in the text of the section wherever they appear.

Sec. 31.8 (Amended)

7. Section 31.8, paragraph (a), is amended by removing the words "Accounting and Financial Management Division".