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the steeper grades and widening on essentially the existing alignment and providing a 16-foot width bituminous surface course with 4-foot shoulders and adequate drainage facilities; upon completion of improvement, the State would maintain the road in its improved condition at its sole cost and expense; the total amount of consideration in the contract is $54,900; and that the State is in a position to begin improvement of the road this fall and complete the work before winter conditions set in. It is intended to use project construction funds for payment under the proposed contract.
It is further stated that construction of a Government-owned road, paralleling State Route 40/5 would involve extensive hillside cuts through terrain where slide conditions would be encountered and result in extensive maintenance problems and that the length of time involved to prepare contract plans and to acquire the right-of-way for a private road would not permit construction of the road this calendar year. The estimated cost for construction of such a private road is stated to be approximately $100,000 and that in addition maintenance of the road would be the Government's responsibility.
The Assistant Secretary says that unless a suitable all-weather road is provided this fall, travel conditions for lock operating personnel will be hazardous during inclement winter weather conditions and result in unpredictable schedules for arrival and departure of lock personnel and that completion of construction of the lock and dam about November will eliminate the availability of equipment which has maintained the road sufficiently to enable access during the construction operations.
The letter further states that our attention is invited to a provision in the proposed contract whereby the State grants to the Government a license for road purposes over Secondary Route 40/5; advice is that the license was considered to be more than merely permissive to cover the requirements for road purposes, i.e., loads and traffic above the standards for the secondary route; and the State, having no basis for funding improvement of the road, is willing to accept the continuing obligation requiring a higher maintenance standard without charge to the Government, and, therefore, the license is thus more than a mere permissive license and seems to be coupled with an interest sufficient to vest a substantive right in the Government similar to an easement. In this connection, we should like to point out that under § 1412, c. 17, West Virginia Code of 1955, a public road is defined as including any road to which the public has access and which it is not denied the right to use and under Article 1f of the proposed contract the Government would be granted an irrevocable license to use the involved road only "as long as said portion of road remains a public road." Hence it appears that the
Government would acquire no greater rights with respect to the use of Secondary Route 40/5 than that enjoyed by the general public. The doubt in the matter is said to arise from our prior ruling prohibiting the use of Federal funds for public road improvement. It is stated, however, that there are many extenuating circumstances which are considered to be justification for the proposed expenditure. It is well established that appropriated funds are not available for the repair, improvement, or reconstruction of State-controlled public roads, unless specifically authorized by substantive law or the appropriation concerned. 2 Comp. Gen. 308; 6 id. 97; id. 353. The use of appropriated funds therefor in the absence of specific statutory authority would result in the violation of sections 3678, 3679, as amended, and 3733, Revised Statutes.
Section 3678, Revised Statues, 31 U.S.C. 628, states:
Except as otherwise provided by law, sums appropriated for the various branches of expenditure in the public service shall be applied solely to the objects for which they are respectively made, and for no others.
Section 3679, Revised Statutes, 31 U.S.C. 665, provides that:
No officer or employee of the United States shall make or authorize an expenditure from or create or authorize an obligation under any appropriation or fund in excess of the amount available therein; nor shall any such officer or employee involve the Government in any contract or other obligation, for the payment of money for any purpose, in advance of appropriations made for such purpose, unless such contract or obligation is authorized by law.
Section 3733, Revised Statutes, 41 U.S.C. 12, states:
No contract shall be entered into for the erection, repair, or furnishing of any public building, or for any public improvement which shall bind the Government to pay a larger sum of money than the amount in the Treasury appropriated for the specific purpose.
This latter provision of law prohibits the execution of a contract for "any public improvement" on Federal property unless funds are specifically appropriated therefor.
Thus, if specific action is required by the Congress with respect to public improvements on Federal property, a fortiori, specific authority would be required for the financing from Federal funds of public improvements on State property.
In a decision dated December 23, 1952, on a similar case (32 Comp. Gen. 296), we concluded that the construction of a deceleration lane on U.S. Highway 6, adjoining the entrance to the Veterans Administration Hospital, but not on the premises, was not authorized, stating in part:
Considering all of the factors involved, including the belief that numerous other requests would be made if Federal participation in the construction of these proposed lanes were permitted, the conclusion seems inescapable that the use of Federal funds to improve public roads near Federal facilities is a matter for the consideration of the Congress.
The appropriation sought to be charged in this case is contained in the Public Works Appropriation Act, 1960, 73 Stat. 491. Under the heading "Construction General," the act provides:
For the prosecution of river and harbor, flood control, shore protection, and related projects authorized by law ***.
The Hildebrand Lock and Dam project on the Monongahela River, West Virginia, was authorized by the River and Harbor Act of 1950, 64 Stat. 163, of which section 101 provides:
That the following works of improvement of rivers and harbors and other waterways for navigation, flood control, and other purposes are hereby adopted and authorized to be prosecuted under the direction of the Secretary of the Army and supervision of the Chief of Engineers in accordance with the plans and subject to the conditions recommended by the Chief of Engineers in the respective reports hereinafter designated ***.
Monongahela River, West Virginia and Pennsylvania; Senate Document Number 100, Eighty-first Congress
Senate Document No. 100, 81st Congress, contains the plans and recommendations for the enlargement and improvement of the navigation channels on the Monongahela River, West Virginia and Pennsylvania, including the Hildebrand Lock and Dam project. However, we find nothing in that document to indicate that the construction of access roads outside the project or the improvement of similarly situated State public roads were contemplated. Since the appropriation sought to be charged is for "projects authorized by law" and authority for the project is based solely upon the plans set forth In Senate Document No. 100, it follows that the appropriation is not available for the improvement of State public roads outside the project.
Accordingly, we are required to conclude that the use of project construction funds for the improvement of West Virginia Secondary Route 40/5 is not authorized.
Contracts-Research Work Performed by National Academy of Sciences-Advance Payment Prohibition
In view of the express exemption in section 10 (a) of the Agricultural Marketing Act of 1946, 7 U. S. C. 427i (a), from the application of the advance payment prohibition in 31 U. S. C. 529, payments by the Department of Agriculture for research services to be performed by the National Academy of Sciences will not be regarded as in contravention of the advance payment prohibition. 39 Comp. Gen. 71, modified.
To the Secretary of Agriculture, November 20, 1959:
By letter of September 11, 1959, the Under Secretary of Agriculture requested that we give further consideration to the questions involved in our decision of August 3, 1959, 39 Comp. Gen. 71.
The subject matter of that decision was contract No. A-1s-33826, dated June 30, 1953, and supplement thereto, by which the National Academy of Sciences agreed to perform certain research service for the Department of Agriculture for $42,288. Pursuant to the contract provisions a portion of the contract price was paid in advance. In the performance of the research called for by the contract the Academy incurred costs which exceeded the contract price by $25,055.28. The Department of Agriculture refused to pay this additional amount and the matter was referred here for settlement.
In our decision of August 3, 1959, we authorized our Claims Division to allow the claim of the National Academy of Sciences. We also stated that the provision for advance payment contravened section 3648, Revised Statutes, 31 U.S.C. 529, and suggested that future similar contracts limit the consideration to be paid thereunder to reimbursement of the Academy's actual expenses, with a limitation if desired, on the maximum amount payable under the contracts.
The Under Secretary points out that the contract was executed by the Department pursuant to authority contained in the Agricultural Marketing Act of 1946, and that section 10 (a) thereof, 7 U.S.C. 427i (a), specifically provides that payments may be made without regard to the provisions of section 3648, Revised Statutes. In view of such authority we agree that the advance payments were not in contravention of section 3648, Revised Statutes.
We do not agree, however, with the Under Secretary's views that the terms of the instant contract are in accord with our suggestion concerning future contract terms. Our suggestion contemplated that future contracts not only should provide for reimbursement of actual costs up to a stipulated maximum amount but should also specifically provide that no costs be incurred above the amount so stipulated unless authorized by a subsequent agreement if so intended.
It also is our view that the Agricultural Marketing Act does not in any way affect the authority of the Academy as set out in section 3 of the act of March 3, 1863, 12 Stat. 806, 36 U.S.C. 253, which provides, in effect, that when the Academy is requested to perform work for the Government the actual expense of such work shall be paid from appropriations made for that purpose.
The Under Secretary states that the Academy agreed to contribute funds otherwise available to it to the cost of the contract work and contends that the contract price agreed on might, therefore, properly be less than the cost of the work. In response to our request for comments on this matter the Business Manager for the Academy, by letter of November 4, 1959, replied in part:
2. The Under Secretary of Agriculture is correct in his statement that it was contemplated that the National Academy of Sciences-National Research Council "would contribute funds otherwise available to it to the cost of the project."
Again in reference to an estimate of costs of stenographic and secretarial assistance, he quotes our statement that additional required services would be provided by the Academy-Research Council. The contributions of the Contractor from funds other than those provided by Contract No. A-1s-33826 were indeed quite substantial in amount. The services of the Executive Secretary of the Agricultural Board were provided at no cost to the contract. Those services consisted of scientific oversight of the project throughout its term. In addition, the services of the secretarial and stenographic staff of the Executive Secretary of the Agricultural Board were required and were provided to a considerable extent in the performance of the contract work. Those services were mostly in reference to (a) correspondence with individuals and organizations who were potential sources of data of the kind to be compiled, (b) correspondence with members of the Committee on Feed Composition and with other scientists on the development of criteria and on other matters relating to the organization of the data to be compiled and (c) the preparation and distribution of committee meeting minutes and periodic progress reports. Further, a portion of the Contractor's expenses of distributing copies of the published report, Composition of Cereal Grains and Forages, was incurred subsequent to the date we closed the contract account, and such expenses have been defrayed from other funds.
Generally accepted accounting practices would have permitted the Academy to charge the above-described costs to the contract account. The amount of those costs (not allocated to the contract account) exceeded the total of the cash contributions from the four sources named in the Special Acknowledgment on page vii of the published report and referred to in the Under Secretary's letter. Those contributions were made in consideration of the fact that the Academy had obligated itself to assume a portion of the cost of the work required under the contract.
3. You quoted the following from the Under Secretary's letter of September 11: "We believe in the instant contract it was clearly understood between the parties that the Academy was to provide sufficient financing to carry out the project even if the agreed fixed sum might turn out to be inadequate." We deny categorically that responsible representatives of the Academy undertook on behalf of the Academy to underwrite, without limitation, costs of the work which would be in excess of the contract amount. Certainly it was not intended that acceptance of the contract should completely and irrevocably deny to the Academy the right (a) to limit its financial obligation thereunder and/or (b) to claim and to receive payment agreed to for its actual cost of performance. It is our belief that the position taken herein is consistent with the terms of the Act of March 3, 1863 which imposes on the Academy the obligation to serve Government and the requirement that such services shall be provided on a nonprofit basis.
In view of the apparent misunderstanding between the contracting parties and the fact that your Department, even with the allowance of the claim, paid less than the actual cost of the contract work, we believe that our allowance of the Academy's claim represented a proper solution of the matter. In this regard your attention is invited to letter of December 1, 1958, addressed to our Claims Division by F. H. Spencer, Executive Assistant Administrator, Agricultural Research Service, wherein he stated that “*** if you feel that the equity of the situation would justify payment of the claim, we would have no objection."
Civilian Personnel-July 3, 1959-Compensatory Days Substituted for Holiday Pay-Act of September 22, 1959 Employees who worked on July 3, 1959, and who, pursuant to Executive Order No. 10825, were granted a compensatory day off prior to September 22, 1959,