B-168529, JAN. 5, 1970

B-168529, JAN. 5, 1970

MISCELLANEOUS--MILK PROGRAM AGREEMENTS--EFFECTIVE DATE DECISION TO SECRETARY OF AGRICULTURE ADVISING THAT THE EFFECTIVE DATE OF A SPECIAL MILK PROGRAM AGREEMENT WITH THE QUAPOW BOY SCOUTS CANNOT BE CHANGED RETROACTIVELY. AN APPLICATION BY A BOY SCOUT CAMP TO PARTICIPATE IN THE SPECIAL MILK PROGRAM WHICH WAS APPROVED BY THE DEPARTMENT OF AGRICULTURE ON THE DATE IT WAS RECEIVED, ALTHOUGH THE CAMP HAD OPENED TWO MONTHS EARLIER AND SHOULD HAVE APPLIED FOR PARTICIPATION BEFORE OPENING, MAY NOT BE CHANGED TO PERMIT PAYMENT RETROACTIVELY TO THE DATE OF THE CAMP OPENING.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER DATED DECEMBER 1, 1969, FROM MR. RICHARD LYNG, ASSISTANT SECRETARY, DEPARTMENT OF AGRICULTURE, REQUESTING OUR DECISION AS TO WHETHER THE EFFECTIVE DATE OF A SPECIAL MILK PROGRAM AGREEMENT WITH THE QUAPAW AREA COUNCIL, BOY SCOUTS OF AMERICA, LITTLE ROCK, ARKANSAS, MAY BE CHANGED FROM JULY 22, 1969, TO MAY 30, 1969.

THE FACTS, AS STATED IN THE LETTER AND RELATED PAPERS, ARE THAT THE QUAPAW AREA COUNCIL OPERATES A SUMMER CAMP AND PARTICIPATED IN THE SPECIAL MILK PROGRAM IN 1968. ON MAY 5, 1969, THE DALLAS REGIONAL OFFICE MAILED PARTICIPATION FORMS OUT TO ALL CAMPS IN THE AREA THAT HAD PARTICIPATED IN THE SPECIAL MILK PROGRAM THE PREVIOUS SUMMER. A FOLLOW-UP LETTER WAS SENT OUT BY THE DALLAS REGIONAL OFFICE MAY 26, 1969, TO ALL ORGANIZATIONS, INCLUDING THE QUAPAW AREA COUNCIL, WHICH HAD NOT RETURNED THE COMPLETED PARTICIPATION FORMS. THE LETTER STATED IN PART THAT "THESE FORMS ARE REQUIRED BEFORE YOUR CAMP OPENS FOR THE SUMMER."

THE COMPLETED PARTICIPATION FORM OF THE QUAPAW AREA COUNCIL WAS NOT RECEIVED BY THE DALLAS REGIONAL OFFICE UNTIL JULY 22, 1969, THE COUNCIL ATTRIBUTING THE DELAY IN SUBMITTING THE PARTICIPATION FORM TO AN OVERSIGHT ON THE PART OF A FORMER EMPLOYEE. THE PARTICIPATION FORM STATED THE OPENING DATE OF THE CAMP WAS MAY 30, 1969, AND THE CAMP WAS TO CLOSE ON AUGUST 4, 1969. APPROVAL OF THE APPLICATION WAS GRANTED AND THE AGREEMENT FORM WAS SIGNED BY THE ADMINISTRATIVE OFFICER OF THE REGIONAL OFFICE JULY 23, 1969, WITH THE EFFECTIVE DATE OF THE AGREEMENT BEING JULY 22, 1969, THE DAY IT WAS RECEIVED IN THE REGIONAL OFFICE.

IN SUGGESTING THAT THE COUNCIL'S APPLICATION NOW BE CONSIDERED AS BEING EFFECTIVE FROM THE DATE THAT THE CAMP OPENED, THE ASSISTANT SECRETARY REFERS TO PARAGRAPH 215.9 OF THE SPECIAL MILK PROGRAM REGULATIONS, 7 CFR 215.9 (A), WHICH PROVIDES AS FOLLOWS:

"A STATE AGENCY, OR CFPDO WHERE APPLICABLE, MAY GRANT WRITTEN APPROVAL TO BEGIN OPERATIONS UNDER THE PROGRAM PRIOR TO THE RECEIPT OF THE APPLICATION FROM THE SCHOOL OR CHILD-CARE INSTITUTION. SUCH WRITTEN APPROVAL SHALL BE ATTACHED TO THE SUBSEQUENTLY FILED APPLICATION, AND THE AGREEMENT EXECUTED BY THE SCHOOL OR CHILD-CARE INSTITUTION SHALL BE EFFECTIVE FROM THE DATE UPON WHICH THE SCHOOL OR CHILD-CARE INSTITUTION WAS AUTHORIZED TO BEGIN OPERATIONS: PROVIDED, HOWEVER, THAT SUCH EFFECTIVE DATE SHALL NOT BE EARLIER THAN THE CALENDAR MONTH PRECEDING THE CALENDAR MONTH IN WHICH THE AGREEMENT IS EXECUTED BY THE STATE AGENCY OR BY THE DEPARTMENT."

THE PROVISIONS OF SUCH PARAGRAPH WERE CONSIDERED IN OUR DECISION OF MARCH 8, 1963, B-150657, ALSO REFERRED TO BY THE ASSISTANT SECRETARY. THAT CASE INVOLVED AN APPLICATION BY A BOY SCOUT CAMP TO PARTICIPATE IN THE SPECIAL MILK PROGRAM WHICH WAS NOT SUBMITTED UNTIL TWO WEEKS AFTER THE CAMP OPENED. HOWEVER, SEVERAL WEEKS PRIOR TO ITS OPENING THE CAMP OFFICIALS HAD WRITTEN TO THE REGIONAL OFFICE OF THE AGRICULTURAL MARKETING SERVICE ADVISING OF ITS INTENTION TO PARTICIPATE IN THE PROGRAM. IN THAT CASE, NO DEADLINE FOR SUBMITTING THE APPLICATION WAS INDICATED IN THE INSTRUCTIONS OR INFORMATION FURNISHED THE CAMP. IN VIEW OF THE ABOVE-CITED REGULATIONS THE CAMP COULD HAVE BEEN GRANTED APPROVAL ON THE BASIS OF ITS EARLIER LETTER. HOWEVER, SUCH APPROVAL WAS NOT GRANTED APPARENTLY BECAUSE THE REGIONAL OFFICE ASSUMED THAT THE CAMP OFFICIALS WOULD FILE A FORMAL APPLICATION PRIOR TO ITS OPENING DATE. SINCE THE CAMP HAD OTHERWISE COMPLIED WITH PROGRAM REQUIREMENTS, WE STATED THAT IN VIEW OF THE PROVISIONS OF THE REGULATION IN QUESTION WE WOULD NOT OBJECT TO AMENDMENT OF THE AGREEMENT TO SHOW ITS EFFECTIVE DATE TO BE THAT ON WHICH THE CAMP OPENED.

THAT CASE, OF COURSE, DIFFERS FROM THE INSTANT ONE IN THAT HERE THE REGIONAL OFFICE HAD RECEIVED NO WRITTEN INDICATION FROM THE COUNCIL THAT IT INTENDED TO PARTICIPATE IN THE SPECIAL MILK PROGRAM, AND, AS SET OUT ABOVE, THE REGIONAL OFFICE DID NOT RECEIVE A REPLY TO ITS PREVIOUS NOTICES UNTIL APPROXIMATELY TWO MONTHS AFTER THE CAMP OPENED. WHILE THE COUNCIL DID TELEPHONE THE REGIONAL OFFICE ON JULY 18, 1969, THE RECORD INDICATES THAT THE COUNCIL WAS TOLD THAT THE EARLIEST DATE THE CAMP COULD BE APPROVED UNDER THE PROGRAM WAS THE DATE THE PARTICIPATION FORMS WERE RECEIVED IN THE REGIONAL OFFICE AND THAT THE FORMS SHOULD BE SENT IN IMMEDIATELY SO THAT APPROVAL COULD BE GIVEN FOR THE REMAINING PERIOD.

WE THINK IT IS CLEAR FROM THE PLAIN WORDING OF PARAGRAPH 215.9 (A) THAT THE COUNCIL IS NOT ENTITLED TO PAYMENT FOR ANY PERIOD PRIOR TO APPROVAL OF ITS APPLICATION. NOT ONLY DID THE INSTRUCTIONS SPECIFICALLY REQUIRE SUBMISSION OF THE APPLICATIONS BEFORE THE CAMP OPENED FOR THE SUMMER, THE RECORD INDICATES THAT THE REGIONAL OFFICE DID NOT INTEND TO AUTHORIZE THE COUNCIL TO PARTICIPATE IN THE PROGRAM PRIOR TO ACTUAL RECEIPT OF THE APPLICATION. TO HOLD OTHERWISE WOULD PERMIT ANY TARDY APPLICATION WHICH IS PROPER IN OTHER RESPECTS TO BE RETROACTIVELY EFFECTIVE UP TO TWO MONTHS PRIOR TO ITS RECEIPT BY THE GOVERNMENT -- A RESULT CLEARLY NOT CONTEMPLATED BY THE REGULATIONS.

ACCORDINGLY, AND SINCE THE REGULATIONS GOVERNING THE SPECIAL MILK PROGRAM WERE ISSUED PURSUANT TO STATUTE AND HENCE HAVE THE SAME FORCE AND EFFECT AS LAW, WE SEE NO BASIS ON WHICH A WAIVER COULD BE MADE IN THIS CASE SO AS TO PERMIT PAYMENT TO BE MADE TO THE COUNCIL RETROACTIVELY TO MAY 30, 1969, THE DATE ON WHICH THE CAMP OPENED. FEDERAL CROP INSURANCE CORPORATION V. MERRILL, 332 U.S. 380 (1947).