B-43297, JULY 26, 1944, 24 COMP. GEN. 56

B-43297, JULY 26, 1944, 24 COMP. GEN. 56

PURCHASES - DRINKING WATER WHERE, AT A LOCATION NOT HAVING A MUNICIPAL WATER SUPPLY, THE AVAILABLE SUPPLY OF WATER FROM INDIVIDUAL WELLS HAS NOT BEEN SHOWN TO BE UNSAFE FOR DRINKING PURPOSES, THE PURCHASE OF SPECIAL DRINKING WATER FOR THE USE OF GOVERNMENT EMPLOYEES (NOT ENTITLED TO SUBSISTENCE AT GOVERNMENT EXPENSE) FROM AN APPROPRIATION NOT SPECIFICALLY AVAILABLE FOR SUCH PURCHASE IS NOT AUTHORIZED; NOR IS THE APPROPRIATION AVAILABLE FOR THE COST OF TESTING THE WATER SUPPLY, IT BEING PRESUMED THAT THE STATE PROVIDES FREE TESTING AND ANALYZING FACILITIES. PRIOR DECISIONS INVOLVING PURCHASES OF DRINKING WATER WHERE THE MUNICIPAL SUPPLY WAS UNPALATABLE, ETC., AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION, JULY 26, 1944:

I HAVE YOUR LETTER OF JULY 13, 1944, AS FOLLOWS:

THE FOLLOWING INFORMATION IS SUBMITTED TO YOU FOR CONSIDERATION WHETHER, UNDER THE CIRCUMSTANCES OUTLINED, THIS COMMISSION MAY EXPEND FUNDS APPROPRIATED FOR COMMISSION EXPENSES BY THE INDEPENDENT OFFICES APPROPRIATION ACT FOR 1945 ( PUBLIC LAW 358, 78TH CONGRESS, 2ND SESSION) FOR THE PURCHASE OF DRINKING WATER AT ITS SOUTH MIAMI BEACH, FLORIDA, MONITORING STATION, DESPITE THE LACK OF AN EXPRESS STATUTORY AUTHORIZATION TO MAKE SUCH PURCHASES.

THE CITY OF SOUTH MIAMI DOES NOT HAVE A CENTRAL WATER SYSTEM AND THE PEOPLE THERE, INCLUDING THOSE AT THE COMMISSION'S MONITORING STATION, OBTAIN WATER FROM INDIVIDUAL WELLS AND PUMPING APPARATUS. THERE IS, HOWEVER, NO ASSURANCE THAT THE WELL WATER IS FREE FROM HARMFUL BACTERIA AND EVEN IF, UPON TEST, THE WATER IS FOUND TO BE FREE FROM SUCH BACTERIA AT A PARTICULAR TIME, THERE CAN BE NO ASSURANCE OF THE CONTINUED FITNESS OF THE WATER FOR HUMAN CONSUMPTION. THEREFORE, THE WELL WATER IN THAT LOCALITY, WHICH ALSO HAS A PARTICULARLY BAD TASTE, IS NOT GENERALLY USED FOR DRINKING PURPOSES, AND I AM INFORMED THAT IT IS THE GENERAL PRACTICE IN THE COMMUNITY TO PURCHASE SUCH WATER. IT IS MY UNDERSTANDING THAT, UNDER THESE CONDITIONS, THE EXPENDITURE OF FUNDS FOR THE PURCHASE OF DRINKING WATER WOULD BE PROPER UNDER THE COMMISSION'S APPROPRIATIONS REFERRED TO ABOVE, PROVIDING IN PART AS FOLLOWS:

"SALARIES AND EXPENSES, NATIONAL DEFENSE: FOR ALL EXPENSES NECESSARY TO ENABLE THE FEDERAL COMMUNICATIONS COMMISSION, WITHOUT REGARD TO SECTION 3709 OF THE REVISED STATUTES, TO PERFORM ITS FUNCTIONS RELATED TO NATIONAL DEFENSE, INCLUDING RADIO MONITORING * * *"

I AM AWARE OF A NUMBER OF YOUR DECISIONS REGARDING THE PURCHASE OF DRINKING WATER WITHOUT SPECIFIC STATUTORY AUTHORITY THEREFOR, INCLUDING 18 COMP. GEN. 238, 17 ID. 698, 5 ID. 53 AND 90, AND 3 ID. 828. HOWEVER, THE CITED CASES INVOLVED THE PROPRIETY OF CHARGES AGAINST APPROPRIATED FUNDS FOR THE PURCHASE OF DRINKING WATER WHEN WATER WAS AVAILABLE FROM A CENTRAL WATER SYSTEM OR WAS IN SOME SIMILAR MANNER SUPPLIED FOR DRINKING PURPOSES, UNDER WHICH CIRCUMSTANCES IT COULD BE ASSUMED THAT ADEQUATE AND CONTINUED SUPERVISION BY MUNICIPAL AUTHORITIES TO PREVENT CONTAMINATION OF THE WATER WOULD ASSURE ITS FITNESS FOR DRINKING PURPOSES. IF, HOWEVER, THE PURCHASE OF WATER FOR DRINKING PURPOSES WOULD NOT BE PROPER UNDER THE ABOVE CIRCUMSTANCES, WILL YOU PLEASE ADVISE WHETHER THE FUNDS REFERRED TO ABOVE, MAY BE USED FOR PERIODIC TESTING OF THE WELL WATER AND FOR PURIFICATION OF THE WATER, IF NECESSARY.

IN 18 COMP. GEN. 238, IT WAS HELD (QUOTING FROM THE SYLLABUS):

A CONTRACT FOR THE FURNISHING OF BOTTLED DRINKING WATER FOR THE USE OF GOVERNMENT EMPLOYEES IS NOT AUTHORIZED WHERE THE PUBLIC WATER SUPPLY IS ADMITTED BY THE LOCAL HEALTH OFFICER TO BE "FREE FROM BACTERIA" AND IS NOT SHOWN TO BE DETRIMENTAL TO THE HEALTH OF THE EMPLOYEES, NOTWITHSTANDING HIS OPINION THAT "THE WATER WAS OF A TURGID AND MUDDY NATURE HAVING A TASTE WHICH * * *, WOULD MAKE THE WATER NOT POTABLE FOR HUMAN CONSUMPTION.'

IN DECISION OF SEPTEMBER 14, 1932, A-44192, TO THE SECRETARY OF THE TREASURY, THERE WAS CONSIDERED THE QUESTION OF FURNISHING DRINKING WATER TO AN INSPECTION STATION OF THE CUSTOMS SERVICE UNDER CONDITIONS THEREIN STATED AS FOLLOWS:

ONE SUCH INSPECTION STATION IS LOCATED 3.2 MILES FROM AMBROSE, NORTH DAKOTA, ON THE CANADIAN BORDER. OBVIOUSLY, THERE IS NO PUBLIC WATER SUPPLY, AND WATER FOR DOMESTIC USE MUST BE SECURED FROM WELLS OR CISTERNS. THE DEEP WELL WHICH HAS BEEN SUNK ON THE SITE SUPPLIES WATER OF A VERY ALKALINE NATURE, WHICH IS VERY UNPALATABLE, AND SPOILS THE TASTE OF FOODS COOKED IN IT. THE REPORT OF A PUBLIC HEALTH SERVICE SANITARY ENGINEER ON THIS WATER STATES THAT WHILE THERE IS NOTHING INJURIOUS IN THE WATER FOR DOMESTIC USE, IT WOULD NOT BE SATISFACTORY FOR CULINARY USES, AND WHILE HIS RECOMMENDATIONS SUGGEST THE USE OF THE WATER FOR BOILER PURPOSES AND DOMESTIC PURPOSES, AFTER CERTAIN TREATMENT THEREOF, HE EXCEPTS ITS USE FOR CULINARY AND POSSIBLE DRINKING WATER PURPOSES, BECAUSE OF ITS OBJECTIONABLE TASTE. WITH RESPECT TO THE SITUATION THERE PRESENTED, IT WAS HELD IN SAID DECISION, AS FOLLOWS:

CLEARLY THERE IS NO DUTY ON THE GOVERNMENT TO FURNISH ITS EMPLOYEES WITH WATER FOR COOKING PURPOSES WHEN THEY ARE NOT ENTITLED TO SUBSISTENCE AT GOVERNMENT EXPENSE.

THE APPROPRIATION QUOTED, SUPRA, DOES NOT SPECIFICALLY PROVIDE FOR THE PURCHASE OF DRINKING WATER AND, WITH RESPECT TO THE RULES GOVERNING THE PURCHASE OF WATER UNDER SUCH CIRCUMSTANCES, YOUR ATTENTION IS INVITED TO THE DECISIONS REPORTED IN 5 COMP. GEN. 53; ID. 90, AND DECISIONS THEREIN CITED; AND TO DECISION ADDRESSED TO YOU UNDER DATE OF DECEMBER 13, 1930, A -34468, INVOLVING THE PURCHASE OF BOTTLED SPRING WATER BY THE COLLECTOR OF INTERNAL REVENUE AT ABERDEEN, SOUTH DAKOTA.

SINCE THE NECESSITY FOR THE PURCHASE OF THE WATER FROM THE GOVERNMENT STANDPOINT HAS NOT BEEN SHOWN, YOU ARE ADVISED THAT, UNDER THE FACTS STATED, THE USE OF THE APPROPRIATION INVOLVED FOR THE FURNISHING AND DELIVERY OF WATER FROM A PRIVATE WELL IS NOT AUTHORIZED.

WHILE IT APPEARS THAT THE PUBLISHED DECISIONS OF THIS OFFICE NEGATIVING THE PURCHASE OF DRINKING WATER, OF WHICH 18 COMP. GEN. 238, IS AN EXAMPLE, HAVE BEEN IN CASES IN WHICH THERE WAS AVAILABLE A MUNICIPAL WATER SUPPLY, THAT FACT WAS NOT THE CONTROLLING FEATURE--- THE REAL TEST BEING THE AVAILABILITY OF A SUPPLY OF DRINKING WATER IRRESPECTIVE OF ITS SOURCE, THAT IS TO SAY, IF THERE BE AVAILABLE AN ADEQUATE SUPPLY OF POTABLE DRINKING WATER, THE PURCHASE OF DRINKING WATER IS NOT AUTHORIZED AS A CHARGE AGAINST APPROPRIATED FUNDS IN THE ABSENCE OF A SPECIFIC STATUTORY PROVISION THEREFOR. COMPARE B-25611, MAY 27, 1942. THE RULE IS CLEARLY STATED IN THE SYLLABUS OF THE DECISION, 5 COMP. GEN. 53, AS FOLLOWS:

AS THERE IS NO DUTY OR OBLIGATION UPON THE UNITED STATES TO FURNISH DRINKING WATER TO EMPLOYEES NOT ENTITLED TO SUBSISTENCE AT GOVERNMENT EXPENSE, REGARDLESS OF WHETHER A SUITABLE SUPPLY IS OR IS NOT AVAILABLE WITHOUT CHARGE, THE PURCHASE OF DRINKING WATER AT GOVERNMENT EXPENSE FOR USE IN OFFICES, WITHOUT SUFFICIENT EVIDENCE AS TO THE NECESSITY THEREFOR FROM THE GOVERNMENT'S STANDPOINT AS DISTINGUISHED FROM THE NEEDS OR PREFERENCES OF THE EMPLOYEES, IS NOT AUTHORIZED IN THE ABSENCE OF A SPECIFIC PROVISION IN THE APPROPRIATION INVOLVED PROVIDING FOR SUCH PURCHASE.

AS IT WOULD APPEAR THAT THERE IS AN AVAILABLE SUPPLY OF WATER FROM INDIVIDUAL WELLS AND THAT THE WATER IN THE AVAILABLE WELLS HAS NOT BEEN SHOWN TO BE NON-POTABLE, THAT IS, NOT SAFE FOR DRINKING PURPOSES, THE PURCHASE OF DRINKING WATER IS NOT AUTHORIZED UPON THE PRESENT RECORD.

SINCE, AS INDICATED ABOVE, THERE IS NO DUTY OR OBLIGATION UPON THE GOVERNMENT TO PURCHASE DRINKING WATER FOR ITS EMPLOYEES NOT ENTITLED TO SUBSISTENCE AT GOVERNMENT EXPENSE, I PERCEIVE NO MORE REASON FOR THE GOVERNMENT TO INCUR THE COST OF PERIODIC TESTING OF THE AVAILABLE WATER SUPPLY THAN, FOR INSTANCE, OF INCURRING COSTS OF ANALYZING OR TESTING SUCH COMMODITIES AS ARE OBTAINED BY THEN FOR EATING PURPOSES. I DO NOT FIND THAT THE REFERRED-TO APPROPRIATION IS ANY MORE AVAILABLE FOR THE COST OF TESTING THE AVAILABLE WATER SUPPLY THAN FOR THE PURCHASE OF WATER FOR DRINKING PURPOSES. IT IS TO BE PRESUMED THAT FACILITIES ARE PROVIDED BY THE STATE FREE OF COST FOR TESTING AND ANALYZING WATER IN ANY SECTION OF THE STATE. ACCORDINGLY, THE QUESTION POSED IN THE LAST SENTENCE OF THE THIRD PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.