Payment by National Weather Service to Bonneville Power Administration for USE of Microwave Radio Station Site, B-241319
| Decision Date | 03 October 1991 |
| Docket Number | B-241319 |
| Citation | 71 Comp.Gen. 1 |
| Parties | Payment by National Weather Service to Bonneville Power Administration for Use of Microwave Radio Station Site. |
| Court | Comptroller General of the United States |
MISCELLANEOUS TOPICS - Federal Administrative/Legislative Matters - Administrative agencies - Interagency waiver - Property damages MISCELLANEOUS TOPICS - Federal Administrative/Legislative Matters - Administrative agencies - Interagency waiver - Rent DIGEST: The interdepartmental waiver doctrine prohibits the Bonneville Power Administration (BPA) from charging the National Weather Service (NWS) rent for its noninterfering use of a radio station site, but does not prohibit it from charging for the costs or damages resulting from such use.
The Department of Commerce (Commerce) requests an opinion on behalf of the National Weather Service (NWS) concerning the authority of the Bonneville Power Administration (BPA) to charge NWS for its noninterfering use of a radio station site to broadcast weather information to the general public. For the reasons stated below, we conclude that since BPA is a federal agency, the interdepartmental waiver doctrine generally applies to BPA and prohibits it from charging NWS another federal agency, rent for its noninterfering use of real property. However, the doctrine does not prohibit BPA from charging NWS for the costs or damages resulting from such use since it would be inconsistent with BPA's statutory scheme for BPA's customers to pay for such costs and damages through an increase in rates.
The Bonneville Project Act, ch. 720, 50 Stat. 731 (1937) (codified at 16 U.S.C. Sec. 832-8321 (1988)), authorized the construction of the Bonneville Dam on the Columbia River and established BPA to build and operate transmission facilities and to market the power generated by the dam. At present, BPA maintains facilities throughout the Pacific Northwest. Since 1970, NWS has used BPA's microwave radio station site in West Portland, Oregon, to broadcast weather data to the general public.[1] In November 1989, BPA agreed to continue the arrangement, but informed NWS that the annual fee for the use of the site would include a $2, 500 rental charge for its use of the land and the two antennae on BPA's tower. The record does not identify any additional costs to BPA directly resulting from NWS' use of the radio station site.
Commerce informed BPA that NWS would not pay rent for the radio station site because the interdepartmental waiver doctrine bars interagency claims for the use of real property. In response, BPA asserted that the interdepartmental waiver doctrine does not apply to BPA since its operations are financed by user fees. Following its unsuccessful attempt to locate another broadcast cite, NWS agreed to obligate funds to pay all charges accrued from January 1, 1990, seek our opinion in this matter, and proceed in accordance with our decision.[2] In reaction to Commerce's submission to our Office, BPA submitted its views to us on this matter.
The interdepartmental waiver doctrine prohibits a federal agency from paying for the use or repair of real property controlled by another federal agency, unless authorized by statute. 60 Comp.Gen. 406 (1981); 59 Comp.Gen. 93 (1979). Although our decisions on the doctrine have generally concerned claims for damages, we have long described the doctrine as applying to one government instrumentality paying rent to another. See e.g., 20 Comp.Gen. 699 (1941); 16 Comp.Gen. 887 (1937) The doctrine is based on the concept that the property of instrumentalities of the government is not the property of the separate entities, but rather of the government as a single entity. 41 Comp.Gen. 235 (1961). Since there can be no reimbursement by the government to itself for the use or damage of its own property, one agency or instrumentality cannot pay another for using or damaging government property. 65 Comp.Gen. 464 (1986).
After reviewing the statutes governing BPA's operations, we conclude that the interdepartmental waiver doctrine generally applies to BPA. BPA is clearly an instrumentality of the federal government. Under section 2(a) of the Bonneville Project Act, 16 U.S.C. Sec. 832a(a), the office of the Administrator is an office in the Department of Energy under the jurisdiction and control of the Secretary.[3] In addition BPA is required to repair and replace its property with federal funds. The Federal Columbia River Transmission Act of 1974 (act), Pub.L. No. 93-454, 88 Stat. 1376 (1974) (codified at 16 U.S.C. Sec. 838-838k), established the Bonneville Power Administration Fund as a permanent appropriation to finance BPA's operations. Under section 11(a) of the act, 16 U.S.C. Sec. 838i(a), the Fund consists of all receipts and collections of the Administrator, such as user fees received from customers, proceeds derived from the Administrator's sale of bonds, any appropriations made by Congress, and certain funds transferred to the Fund when it was established. Section 11(b) of the act, 16 U.S.C. Sec 838i(b), requires the Administrator of BPA to make expenditures from the Fund to carry out his duties, including operating, maintaining, and repairing the transmission system.
The statutes governing BPA's operations do not provide an exception to the interdepartmental waiver doctrine which would authorize BPA to charge another federal agency rent for its noninterfering use of real property. In this regard, we have recognized exceptions to the interdepartmental waiver doctrine where Congress has, by statute, expressly required an interagency activity to operate on a self sustaining basis by recovering all costs from using agencies. 65...
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