The third decision referred to in your letter, namely, 13 Comp. Gen. 349, involved the question of whether a claim for consequential damages to private property resulting from the operation of aircraft should be reported to the Congress for an appropriation pursuant to the terms of the act of April 10, 1928, 45 Stat. 413. Claims under the act of April 10, 1928, are not dependent upon the availability of appropriated funds and, therefore, are not comparable to cases such as the present one where the sole question is whether the facts presented are such as to bring the claim within the scope and purpose of a particular provision contained in an appropriation act. It will be noted that the appropriation provision here in question differs in certain respects from those which were for consideration in connection with the decisions of October 20, 1923, 3 Comp. Gen. 234 and June 30, 1925, 4 Comp. Gen. 1074. By the terms of the instant provision a large measure of authority and discretion in determining the validity of certain damage claims is expressly committed to the Secretary of the Navy-who is empowered to "consider, ascertain, adjust, determine and pay" such claims. Thus the factual determination as to whether damages in the amount claimed actually have been incurred as the result of "operation of Naval aircraft" is to be made by him; and in the absence of some evidence or indication that the findings made are arbitrary, unreasonable, etc., said findings would appear to be final, and not subject to review or revision by this office. For consideration in connection with the making of such determination, you are advised that an official in charge of the goat herd at the Beltsville Research Center, Department of Agriculture, stated in response to an informal inquiry that, while some milch goats are timid and temperamental and their milk supply might be affected by fear resulting from the noise of low-flying aircraft, he doubted whether as a result of such a disturbance "many doe goats, heavy with kid" would fall "paralyzed with fright, never to walk again or deliver their kids." It is suggested, therefore, that careful inquiry be made as to the reasonableness of the demands of the claimant, particularly as regards this phase of the claim. However, if it be determined, pursuant to the authority vested in you by the terms of the provision of law here in question, that damages in the amount of $456, or a lesser amount, were actually incurred by H. L. Crosby and Zelda Crosby, as the result of the operation of Naval aircraft in the vicinity of their goat dairy, this office will not be required to object to the payment of such amount as may be found due under the applicable appropriation "Aviation, Navy." (B-20826) PUBLIC QUARTERS CONSTRUCTED FOR RENTAL TO ENLISTED MEN AND CIVILIAN EMPLOYEES RENTAL OR ASSIGNMENT TO COM MISSIONED OFFICERS Low-cost defense houses constructed under authority of title II, section 201 of the act of September 9, 1940, which provides that the Secretary of War and the Secretary of the Navy may rent the houses to certain enlisted men and civilian employees with families, may not be rented to commissioned Navy officers, but, if any of the houses are not needed for the purpose for which authorized, the Secretary of the Navy may assign them to officers on a nonrental basis, in which case the officers would not be entitled to rental allowance. Assistant Comptroller General Elliott to the Secretary of the Navy, November 10, 1941: There has been considered your letter dated September 26, 1941, which is in part as follows: In the letter of August 22, 1941, the Commandant, U. S. Naval Operating Base. Guantanamo Bay, Cuba, urgently requests that authority be granted to set aside 30 houses in the Low Cost Defense Housing Project at that Base for rental to commissioned naval officers. In view of the critical shortage of housing facilities at the Guantanamo Naval Base, the Navy Department contemplates approval of the Commandant's request. However, before taking any further action in this matter, your decision is requested as to whether or not such low-cost defense houses may be legally assigned to officers on a rental basis at rates set up as suitable for enlisted men and civilian employees. Your further decision is requested as to whether or not, if it is held that the officers in question may be permitted to occupy such low-cost defense houses on a rental basis, the occupancy of such Government-owned and controlled quarters on a rental basis will preclude the use of naval appropriations for payment to the officers concerned of rental allowance to which they might otherwise be entitled but for the occupancy of such Government-owned and controlled quarters. Accompanying your request for decision is a first indorsement dated September 12, 1941, from the Chief of the Bureau of Navigation to the Secretary of the Navy, as follows: Reference: (a) SecNav ltr. ND15/N4-1(410524) K Du of June 14, 1941. (b) Art. 1819 (4) (7), U. S. Navy Regulations, 1920, as amended. (c) Compt. Gen, Decision B-13039 of Nov. 15, 1940. 1. Forwarded, recommending approval of the request contained in paragraph 5 of basic letter that 30 houses in the low-cost defense housing project be set aside for commissioned naval officers, provided this procedure is consistent with the provision of law. 2. In reference (a) the Secretary of the Navy authorized the Commandant, fifteenth naval district to assign officers to units in a low cost housing project under conditions similar to those outlined in basic letter. It was stipulated, however, that the commandant would determine the suitability of the quarters for the officers' occupancy. It was also stipulated that no additional expenditure of funds for the purchase of furniture or furnishings would be provided and that during the period of voluntary_occupancy, the officers would not be entitled to payment of rental allowance. In any event the commandant must certify that the quarters so assigned were not needed for enlisted men or civilian employees. 3. The act under which the appropriations were made for the low-cost housing project provides in part as follows: Provided further, That the Secretary of War and the Secretary of the Navy, at their discretion, are hereby authorized to rent such housing units, upon completion, to enlisted men of the Army, Navy, Marine Corps with families, to field employees of the Military and Naval Establishments with families, and to workers with families who are engaged, or to be engaged, in industries essential to the military and naval national defense programs, ineluding work on ships under the control of the Maritime Commission. The Secretary of War and the Secretary of the Navy are further authorized to use such rentals as may be collected from each housing project for the management and maintenance of the housing units therein, including utilities, roads, walks, and accessories, and to set up special reserve accounts for the amortization of the cost of the project: ** 4. Reference (b) states in part: "(4) Every officer, on reporting for duty at a place which is his permanent station and where public quarters are available, shall be immediately assigned thereat, in writing, by the commanding officer, who is the competent superior authority for that purpose (or in the case of marine quarters, by the commanding officer of marines), the quarters designated for his occupancy, or, if none have been designated, such quarters as may be available, provided such quarters contain the number of rooms prescribed by law for an officer of his rank, as stated in the table below or the equivalent of such table, or a less number of rooms determined by such competent superior authority to be adequate in the particular case for the occupancy of the officer and his dependents, if any, giving due consideration to the suitability of the quarters for occupancy by the officer concerned, the position of the officer in the organization, his rank, the number, age, and sex of his dependents, and other circumstances affecting the assignment." "(7) The voluntary occupation by an officer without dependents or by an officer with his dependents of the quarters assigned shall be conclusive proof that they are adequate." The above was based on the premise that there would be some choice remaining to the Commanding Officer as to whether or not quarters were "suitable or adequate." At the Naval Operating Base, Guantanamo, Cuba, the Commanding Officer is under the necessity of certifying that quarters are suitable and adequate or leaving the officer without any quarters for his dependents whatsoever. It also presumes that the officer has some choice remaining, under certain circumstances, as to whether or not he will occupy the Government quarters available. At the above-mentioned station the officer must take "voluntary occupation" or forego the presence of his family on the station. 5. Reference (c) is a decision on certain questions brought up by the Secretary of War in his letter to the Comptroller General dated October 14, 1940 among which was the following: "Although there is no doubt of the authority of the Secretary of War to undertake the development, administration, and management of the project in question pursuant to Public, No. 671, supra, this act does not specificaily cover several legal questions which will arise in the course of such administration. For example, although the Secretary of War is authorized to rent dwellings to enlisted men, the act is silent on the question whether such enlisted lessees would be entitled to receive a monetary allowance in lieu of quarters under the circumstances. If such allowance is not legally authorized, it is extremely doubtful whether such enlisted lessees will be able to pay a rental sufficient to insure the self-liquidation of the project." 6. The answer to the above was in part as follows: "As a general rule when the War Department has Government-owned or leased quarters available for occupancy by enlisted men such quarters are furnished in kind and no rental charge is proper. But it appears not to have been contemplated that the quarters here in question would be available for occupancy by enlisted men on such a basis. Of course, to the extent that quarters, other than those constructed pursuant to the terms of title II of the act of June 28, 1940, supra, are available for occupancy by enlisted men, they should be furnished and no monetary allowance in lieu of quarters paid. However, when such quarters are not available, the fact that enlisted men may be permitted to rent project quarters at rentals fixed in accordance with section 204 of the act of June 28, 1940, supra, will not preclude them from being paid such monetary allowances for quarters as they would be entitled to receive if occupying quarters not owned by the Government." 7. In view of the above it is recommended that a decision of the Comptroller General be requested as to whether or not the subject houses can be assigned to officers on a rental basis at rates set up as suitable for enlisted men and civilian employees. It would appear that rentals would be required in order to provide for up-keep, administration, and amortization of the project. A decision is also requested that if the officer does pay such rental does the fact that he is occupying Government quarters preclude his drawing rental allowance. 8. If an unfavorable decision is received in this matter, it is urgently recommended that the Bureau of Yards and Docks institute a program of providing quarters for officers on outlying stations remote from civilian communities where quarters for their dependents might be found in order to bring the consideration given to officers more in line with what has been given to enlisted men and civilian employees. It is disclosed that the low-cost defense houses which you propose to set aside for occupancy by officers were constructed with funds made available under Public Law No. 781. Apparently the statutory provision to which reference is made is title II, section 201 of the Second Supplemental National Defense Appropriation Act, 1941, 54 Stat. 883, which provides: SEC. 201. To the President for allocation to the War Department and the Navy Department for the acquisition of necessary land and the construction of housing units, including necessary utilities, roads, walks, and accessories, at locations on or near Military or Naval Establishments, now in existence or to be built, or near privately owned industrial plants engaged in military or naval activities, which for the purposes of this act shall be construed to include activities of the Maritime Commission, where the Secretary of War, the Secretary of the Navy, or the Chairman of the Maritime Commission shall certify that such housing is important for purposes under their respective jurisdiction and necessary to the national defense program, $100,000,000: Provided, That the average unit cost of such housing projects, including acquisitions of land, the installation of necessary utilities, roads, walks, accessories, and collateral expenses shall not be in excess of $3,500: Provided further, That in carrying out the purposes of this section the Secretary of War and the Secretary of the Navy may utilize such other agencies of the United States as they may determine upon: Provided further, That the Secretary of War and the Secretary of the Navy, at their discretion, are hereby authorized to rent such housing units, upon completion, to enlisted men of the Army, Navy, Marine Corps with families, to field employees of the Military and Naval Establishments with families, and to workers with families who are engaged, or to be engaged, in industries essential to the military and naval national defense programs, including work on ships under the control of the Maritime Commission. The Secretary of War and the Secretary of the Navy are further authorized to use such rentals as may be collected from each housing project for the management and maintenance of the housing units therein, including utilities, roads, walks, and accessories, and to set up special reserve accounts for the amortization of the cost of the project: Provided further, That the authority of existing law for the negotiation of cost-plus-a-fixed-fee contracts shall be applicable to housing projects for which funds may be made available to the War and Navy Departments or the Maritime Commission. According to the express terms of the statute the Secretary of War and the Secretary of the Navy, at their discretion, are authorized to rent the completed houses to "enlisted men of the Army, Navy, Marine Corps with families, to field employees of the Military and Naval Establishments with families, and to workers with families who are engaged or to be engaged in industries essential to the military or naval national defense programs, * "Nowhere in the provision is it suggested that the houses authorized thereby were intended for the occupancy of officers of either of the services, nor has any statement been found in the history of this particular legislation which permits the assumption that they were so intended. The statute authorizes the renting of the houses constructed thereunder to certain designated persons and, since officers of the Navy are not included among such designated persons, the authority granted to rent such houses does not extend to officers. Accordingly, you are advised that such houses may not be legally assigned to officers on a rental basis at rates set up as suitable for enlisted men and civilian employees. In view of the answer to your first question no answer to your second question is required. However, it may be stated that it is clear that the houses involved were or are being constructed with public funds, and that the completed houses are Government property under the jurisdiction of the Secretary of the Navy. If such houses are not needed for the purpose for which authorized, that is, for the occupancy of certain enlisted men or civilian employees as designated in the statute, it appears to be within your authority to assign such unoccupied and unneeded houses under your supervision and control to commissioned officers, but, if such houses are assigned to officers, such assignment would be an assignment of public quarters within the meaning of the rental allowance statutes and would preclude payment of rental allowance during the period the officers occupied such houses. (B-21209) CONTRACTS-COST-PLUS-PAYMENTS-FINALITY OF CONTRACTING OFFICER'S APPROVAL A contractor who is to operate an ordnance manufacturing plant for the Government on a cost-plus-a-fixed-fee basis may not be reimbursed the cost of membership in a local Chamber of Commerce where such membership has no reasonable relation to the work to be performed under the contract, even though the contracting officer's representative has approved the payment under a contract provision which provides for reimbursement of "Such other items as should, in the opinion of the Contracting Officer, be included in the cost of the work." Comptroller General Warren to Maj. W. Gritz, U. S. Army, November 12, 1941: There has been received by reference from the Under Secretary of War, your letter of September 22, 1941, as follows: 1. The enclosed Bureau Voucher No. 1383-ORD-172, in the amount of $100.00, having been presented to the undersigned disbursing officer by Atlas Powder Company, through the Office of the Commanding Officer, Weldon Spring Ordnance Works, Weldon Spring, Missouri, requesting reimbursement under Cost-Plus-AFixed-Fee Contract No. W-ORD-482, dated October 23, 1940, is submitted for advance decision as to whether or not such charges for local Chamber of Commerce fees as set forth therein is to be construed as necessary for the job and is therefore a reimbursable item under title 3, article 3 (a), paragraph 1R, of the contract. An explanation of the expenditure and the basis for his approval thereof is set forth by the contracting officer's representative, in first indorsement of September 15, 1941, to you, as follows: 1. In connection with Bu Voucher 1383-ORD-172, covering reimbursement to the Atlas Powder Company for Invoice 4176 in favor of the St. Louis Chamber of |