B-27941, AUGUST 21, 1942, 22 COMP. GEN. 153

B-27941, AUGUST 21, 1942, 22 COMP. GEN. 153

ACCEPTANCE BY FEDERAL AGENCY OF PRIVATE PROPERTY OFFERED FOR ITS USE THE ACCEPTANCE BY A FEDERAL AGENCY OF THE LOAN OR DONATION OF EQUIPMENT FOR USE BY THE GOVERNMENT IS NOT SPECIFICALLY PROHIBITED BY LAW BUT, FOR VARIOUS REASONS, INCLUDING THAT OF PUBLIC POLICY, THE BORROWING OF PROPERTY BY THE GOVERNMENT IS NOT TO BE ENCOURAGED GENERALLY. THE OFFER BY A GOVERNMENT EMPLOYEE TO LOAN A TRAILER TO THE AGENCY IN WHICH EMPLOYED FOR ITS USE MAY BE ACCEPTED IF IT BE ADMINISTRATIVELY DETERMINED THAT SUCH EQUIPMENT IS NECESSARY TO THE DISCHARGE OF THE DUTIES AND FUNCTIONS OF THE AGENCY AND THAT THE ACCEPTANCE OF THE LOAN IS CLEARLY IN THE INTEREST OF THE UNITED STATES, BUT THERE SHOULD BE A DEFINITE UNDERSTANDING WITH RESPECT TO THE USE AND UPKEEP OF THE TRAILER AND ITS RETURN TO THE OWNER, AND DUE CONSIDERATION SHOULD BE GIVEN TO THE FACT THAT SUCH TRANSACTIONS ARE OPEN TO CRITICISM FOR POSSIBLE FAVORITISM AND PREFERENTIAL TREATMENT OF THE EMPLOYEE.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION, AUGUST 21, 1942:

I HAVE A LETTER DATED AUGUST 6, 1942, FROM THE SECRETARY OF YOUR COMMISSION, AS FOLLOWS:

AN EMPLOYEE OF THIS COMMISSION, NAMELY MR. WILLIAM J. HOFFERT, ASSISTANT SUPERVISOR OF THE RADIO INTELLIGENCE DIVISION MONITORING STATION AT LAUREL, MARYLAND, OWNS A USED TRAILER CAPABLE OF CARRYING A MAXIMUM LOAD OF 1,500 POUNDS.

REALIZING THE COMMISSION'S URGENT NEED FOR THIS TYPE OF EQUIPMENT BY VIRTUE OF HIS EMPLOYMENT BY THE COMMISSION, HE HAS AGREED TO LOAN THE VEHICLE TO THE COMMISSION GRATIS FOR THE DURATION OF THE PRESENT EMERGENCY.

YOUR OPINION IS REQUESTED AS TO WHETHER THE COMMISSION MAY TAKE OVER AND OPERATE THE TRAILER IN CONNECTION WITH OFFICIAL BUSINESS, OBTAIN CERTIFICATE OF TITLE IN ITS NAME, MAKE REPLACEMENT OF TIRES AND MAKE ANY OTHER REPAIRS THAT MAY BE NECESSARY FROM TIME TO TIME, UTILIZING FUNDS FROM THE COMMISSION'S APPROPRIATION.

YOUR EARLY CONSIDERATION OF THIS MATTER WOULD BE GREATLY APPRECIATED.

THERE HAS NOT BEEN FOUND ANY STATUTORY PROVISION SPECIFICALLY AUTHORIZING THE FEDERAL COMMUNICATIONS COMMISSION TO ACCEPT THE DONATION OR LOAN OF PROPERTY FOR OFFICIAL USE. FURTHERMORE, THE PRACTICE OF BORROWING PROPERTY FOR GOVERNMENT USE IS NOT TO BE ENCOURAGED GENERALLY, INASMUCH AS SUCH PRACTICE OFTEN LEADS TO CLAIMS AGAINST THE GOVERNMENT FOR DAMAGE TO, OR LOSS OF, THE LOANED PROPERTY AND MIGHT GIVE RISE TO QUESTIONS AS TO FAVORS RECEIVED OR EXPECTED FROM THE GOVERNMENT BY PERSONS LOANING THEIR PROPERTY. HOWEVER, THERE APPEARS TO BE NO SPECIFIC PROHIBITION AGAINST ACCEPTING THE LOAN OR DONATION OF PROPERTY SUCH AS THAT HERE INVOLVED FOR USE BY THE GOVERNMENT AND SUCH PRACTICE HAS BEEN RECOGNIZED AS LAWFUL IN SOME INSTANCES. SEE, FOR EXAMPLE, 20 COMP. GEN. 617, WHEREIN IT WAS HELD (QUOTING SYLLABUS):

WHERE EQUIPMENT IS LOANED TO THE GOVERNMENT FOR USE IN CONNECTION WITH A PARTICULAR GOVERNMENT WORK, THE APPROPRIATION FOR THAT WORK IS AVAILABLE FOR REPAIRS TO SUCH EQUIPMENT TO THE EXTENT NECESSARY FOR THE CONTINUED USE OF THE EQUIPMENT ON THAT WORK, BUT SUCH APPROPRIATION IS NOT AVAILABLE FOR REPAIRS TO RETURN THE EQUIPMENT IN GOOD CONDITION AFTER THE USE HAS TERMINATED.

THERE IS FOR CONSIDERATION, ALSO, THE QUESTION ARISING FROM THE FACT THAT THE OWNER OF THE INVOLVED TRAILER IS AN EMPLOYEE OF THE FEDERAL COMMUNICATIONS COMMISSION. IN 21 COMP. GEN. 705, IT IS SAID (PAGE 707):

CONTRACTS BETWEEN THE GOVERNMENT AND ITS EMPLOYEES ARE NOT PROHIBITED GENERALLY BY STATUTE BUT ONLY WHERE AN EMPLOYEE OF THE GOVERNMENT ACTS AS AGENT BOTH FOR THE GOVERNMENT AND THE CONTRACTOR IN THE TRANSACTION OF BUSINESS (SEE 18 U.S.C. 93; 14 OP. ATTY. GEN. 482; 24 ID. 557; 5 COMP. GEN. 93; 13 ID. 281; 17 ID. 123); OR WHERE THE SERVICE TO BE RENDERED UNDER A CONTRACT WITH AN EMPLOYEE IS SUCH AS COULD HAVE BEEN REQUIRED OF HIM IN HIS OFFICIAL CAPACITY, IN WHICH CASE THE PAYMENT OF ADDITIONAL COMPENSATION IS INHIBITED BY SECTIONS 1764 AND 1765, REVISED STATUTES, 5 U.S. CODE, 69, 70. CF. WOODWELL V. UNITED STATES, 214, U.S. 82.

HOWEVER, ASIDE FROM ANY STATUTORY PROHIBITION, CONTRACTS BETWEEN THE GOVERNMENT AND ITS EMPLOYEES ARE OPEN TO CRITICISM FOR POSSIBLE FAVORITISM AND PREFERENTIAL TREATMENT; AND THIS OFFICE OFTEN HAS EXPRESSED THE VIEW THAT SUCH CONTRACTS SHOULD NOT BE MADE EXCEPT FOR THE MOST COGENT REASONS. 5 COMP. GEN. 93; 14 ID. 403; CF. 13 COMP. GEN. 281.

IN THE INSTANT MATTER, HOWEVER, HAVING REGARD PARTICULARLY FOR THE EXISTING WAR CONDITIONS RESULTING IN A SHORTAGE OF MATERIALS FOR USE IN MANUFACTURING SUCH ARTICLES AS TRAILERS, TIRES, C., I SEE NO REAL OBJECTION TO ACCEPTANCE OF THE CONTEMPLATED LOAN OF THE TRAILER IF IT BE ADMINISTRATIVELY DETERMINED THAT SUCH EQUIPMENT IS NECESSARY TO THE DISCHARGE OF THE DUTIES AND FUNCTIONS OF THE FEDERAL COMMUNICATIONS COMMISSION AND THAT ACCEPTANCE OF THE LOAN IS CLEARLY IN THE INTEREST OF THE UNITED STATES. IT IS SUGGESTED, HOWEVER, THAT IF SUCH LOAN IS TO BE ACCEPTED, THERE SHOULD BE A WRITTEN AGREEMENT DEFINITELY FIXING THE PERIOD OF THE LOAN AND SETTING FORTH SUCH CONDITIONS AS MAY BE PROPER WITH RESPECT TO THE USE AND UPKEEP OF THE TRAILER AND ITS RETURN TO THE OWNER, IN CONFORMITY WITH THE PRINCIPLES AND DECISIONS ABOVE MENTIONED.

WHETHER THE COMMISSION PROPERLY MAY OBTAIN IN ITS NAME A CERTIFICATE OF TITLE TO THE TRAILER, AS SUGGESTED IN THE ABOVE LETTER, IS A MATTER OVER WHICH THIS OFFICE HAS NO JURISDICTION AND CONCERNING WHICH NO OPINION IS EXPRESSED. IT MAY BE OBSERVED, HOWEVER, THAT IF THE TRAILER IS MERELY LOANED TO THE COMMISSION FOR THE DURATION OF THE WAR, AS DISTINGUISHED FROM AN OUTRIGHT GIFT TO THE GOVERNMENT, IT IS NOT APPARENT HOW IT COULD BE REGARDED AS OWNED BY THE COMMISSION.