Examples "C" and "A" given in ASPR 1-801.1 and cited by Reynolds in support of its position are not applicable here since those examples specifically refer to situations involving vendor purchases, whereas here Reynolds is not purchasing raw materials from vendors but producing the same at its own facilities.

Accordingly, the protest of Reynolds is denied.

[B-149682]

Regulations-Implementing Procedures-Waiver

The retroactive waiver of a Federal aid highway program operating policy issued by the Federal Highway Administrator under a regulation of the Secretary of Commerce which specified that all operating procedures and instructions issued by the Administrator "shall be and continued in full force and effect from the date issued or until modified or revoked by him" would nullify the prospective terms under which the authority to issue procedures was granted; therefore, the Administrator's authority to modify or revoke his policies can only be exercised prospectively.

Regulations-Implementing Procedures-Effect

A requirement for advance approval for the employment of private attorneys by States participating in the Federal aid highway program as stated in the policy and procedures memorandums issued by the Federal Highway Administrator, which memorandums set forth the operating rules for the program so that they have the force and effect of law, is a requirement which must be uniformly applied to all States; therefore, the retroactive waiver for one State of the advance approval requirement for the employment of attorneys is not within the authority of the Administrator and Federal aid payments made on the basis of such retroactive waiver must be disallowed.

To the Secretary of Commerce, July 9, 1963:

In our review of the Federal-aid highway program in the State of Virginia as administered by the Bureau of Public Roads, we found that Federal participation has been allowed in costs related to employment by the State of private attorneys notwithstanding the State's failure to obtain advance approval for such employment as required by Bureau directives. We advised the Federal Highway Administrator by letter of January 31, 1963, that in our opinion he did not have the authority to retroactively waive requirements imposed upon the States by him in connection with their entitlement to Federal participation under the various Federal-aid highway laws and that since the situation with respect to the employment of private attorneys in Virginia constituted an improper waiver of requirements, the exact amounts of related Federal participation should be determined and deducted from future payments due the State. The basis for our conclusion, essentially as reported to the Administrator, is set forth in the following paragraphs.

Section 18 of the Federal Highway Act, approved November 9, 1921, 42 Stat. 216, 23 U.S.C. 19 (1952 Ed.), amending the Federal-Aid Road

Act of July 11, 1916, as amended and supplemented, provided in pertinent part, that:

The Secretary of Commerce shall prescribe and promulgate all needful rules and regulations for the carrying out of the provisions of this Aet

This provision is currently contained in 23 U.S.C. 315 so far as the highways involved are concerned.

The functions of all other officers of the Department of Commerce and the functions of all agencies and employees of the Department were, with a few exceptions not pertinent here, transferred to the Secretary of Commerce, with power vested in him to authorize their performance or the performance of any of his functions by any such officers, agencies, and employees by 1950 Reorganization Plan No. 5, effective May 24, 1950, 64 Stat. 1263, 5 U.S.C. 591 note.

Section 1.23 of regulations issued by the Secretary of Commerce in 1951 under the Federal-Aid Road Act of July 11, 1916, 39 Stat. 355, as amended and supplemented, provided that:

The Commissioner [of Public Roads] is hereby authorized to issue such operating procedures and instructions not in conflict with the act or with the regulations in this part as he may deem necessary for carrying out the provisions and effecting the purposes of the act and the regulations in this part, and all such operating procedures and instructions issued by him shall be and continue in full force and effect from the date on which issued or made effective until modified or revoked by him.

In November of 1953 the Commissioner issued General Administrative Memorandum No. 343, section 4.06 of which provided that:

The cost of employing private attorneys, for purposes other than the preparation of title evidence, and real estate firms or individuals as negotiators or acquisition agents may not be included as eligible for Federal participation, unless such employment is approved in advance by the Division Engineer of the Bureau of Public Roads. Consideration should be given among other things to the following: (a) that the acquiring agency does not maintain an organization adequate for acquiring the right-of-way as a part of its normal operating staff, (b) that the fee is not on a percentage basis, and (c) that the fee is just and reasonable. In case of any doubt the matter should be referred to the Washington office.

The Commissioner's instruction remained effective in substantially similar terms until 1960.

Policy and Procedure Memorandum 21-4.1, issued by the Federal Highway Administrator on December 30, 1960, provides in paragraph 60, with respect to employment of attorneys, that:

If either the State highway department or the chief legal officer of the State regularly employs part-time assistants or legal counsel for right-of-way procurement, and if such is set forth in the State's policy and procedures and accepted by Publie Roads, reimbursement may be claimed for the eligible cost of the services of such attorneys. The employment of special counsel for a particular project, in addition to that set forth in the accepted State plan, shall be approved in advance by the division engineer upon a proper showing that (1) the employment of special counsel is in the public interest, (2) that the fee is not In excess of those prevailing in the locality for similar services, and (3) the fee is not on a percentage basis.

In May of 1960, the Secretary of Commerce in a general revision of the regulations for administering Federal aid for highways pro

vided-in addition to authorizing the issuance of policies and procedures as above-in section 1.9 of the new regulations that:

Federal-aid funds shall not participate in any cost which is not incurred in conformity with applicable Federal and State law, the regulations in this part, and policies and procedures prescribed by the Administrator

Disregarding, for the moment, question as to whether the policies and procedures issued by the Federal Highway Administrator pursuant to authority granted to him under section 1.23 of the Secretary's regulations quoted above-section 1.32 of the current regulationshave the force and effect of law, it is clear that neither the Administrator nor anyone else in the Bureau of Public Roads has authority to retroactively waive the "regulatory" provisions of such policies and procedures as are issued. This conclusion is based upon the provision in section 1.23 of the regulations of the Secretary prior to 1960 that "all such operating procedures and instructions issued by [the Administrator] shall be and continue in full force and effect from the date on which issued or made effective until modified or revoked by him." We believe that the only proper inference to be drawn from such language is that the Administrator's authority to modify or revoke his "regulatory" policies and procedures operates prospectively only. For to hold that he may waive them retroactively is to nullify the terms under which the authority to issue policies and procedures was granted by the Secretary in the first instance. From 1960 forward, section 1.9 of the regulations issued by the Secretary in that year, quoted above, precludes the Highway Administrator from retroactively waiving any failure to comply.

Concerning the status of the Administrator's policies and procedures, it might be argued that they do not have the force and effect of law; and, therefore, any deviation therefrom not violative of statutory law or the Secretary's regulations may be retroactively waived by the Secretary. The Secretary's regulations specifically reserve to himself the function of issuing regulations pursuant to the authority conferred by the statutory provisions cited. See section 1.22 of his regulations prior to 1960 and section 1.37 thereafter. Therefore, and since the power delegated to the Highway Administrator speaks in terms of policies and procedures rather than regulations, it follows that the Administrator's issuances are of lesser dignity than the Secretary's regulations. But does the fact that they are of lesser dignity require the conclusion that they do not have the force and effect of law?

We are inclined to the view that the policies and procedures issued by the Administrator bear the same relation to the Secretary's regulations as these regulations bear to the statute under which they were issued. In this view, bearing in mind the broad functions delegated to the Administrator and the Secretary's authority under Reorganization Plan No. 5 to make such delegation, the policies and procedures

issued by the Administrator constitute the basis under which the Secretary has determined the Federal-aid Highway Program is to be implemented; and to the extent that these policies and procedures do not conflict with the law or the Secretary's regulation they do have the force and effect of law and are not subject to retroactive waiver. See 21 Comp. Dec. 482, 484. This interpretation is supported by the fact that in 1960 the Secretary by his regulation, section 1.9, precluded Federal participation in any cost not incurred in conformity with the Administrator's policies and procedures.

In commenting upon our conclusions, the Federal Highway Administrator, in his letter of April 9, 1963, took the position that the Bureau has authority to waive or make exceptions to a provision of his policy and procedure memoranda which is not based on either a specific requirement of law or on the Federal-aid regulations, when the particular circumstances involved clearly justify such an action. The thrust of the Administrator's argument is that the policy and procedure memoranda were never intended to be regarded as "regulations" in the sense that they were inflexible and not subject to exception when the facts so warranted; that an examination of the memoranda readily discloses they are replete with minutiae which would result in chaos if lack of compliance therewith would require the withholding of Federal participation; and that since section 1.37 of the regulations of the Secretary of Commerce specifically reserves to the Secretary the function of issuing and revising regulations, the policy and procedural issuances of the Administrator cannot be regarded as having the force and effect of law without being in conflict with the Secretary's own regulation. In short it is the Administrator's view that his policy and procedure memoranda requirements may not be waived only where to effect a waiver would contravene the controlling statutes or provisions of the Secretary's regulations but that in other cases the memoranda merely constitute guidelines for the administration of the Federal-aid highway program and, as such, may be retroactively waived or modified as the Administrator sees fit in any particular circumstance.

That the Bureau's policy and procedure memoranda were never intended as "regulations" is of no particular import since whether or not they are such must be determined by their operative nature. With respect to the contention that they contain a great deal of minutiae, we wish to make clear that we recognize there are certain aspects of the memoranda which are instructional and directory and relate more to control over Bureau personnel and the administrative processes of operating the program as opposed to establishing requirements which must be met for entitlement to Federal participation. It is only those criteria laid down for the States to follow which are clearly phrased in terms of requirements that must be complied with which we

maintain cannot be waived. Contrary to the position taken by the Administrator, it would appear that retroactive waivers and exceptions to these criteria in individual circumstances is more conducive to chaos than would be the case if they were applied uniformly in all situations. And concerning the provisions of Regulation 1.37 reserving to the Secretary the authority to issue "regulations," the only meaning we can attach to this provision which would be consistent with the legal concepts applicable in the circumstances is that the Secretary in delegating the function to the Administrator of issuing policy and procedure memoranda made clear that such memoranda could not contravene the Secretary's regulations.

The policy and procedure memoranda issued by the Federal Highway Administrator set the detailed framework of rights and obligations attendant to prosecution of the Federal-aid highway programs. They spell out to the States those requirements which must be met for entitlement to their share of the Federal funds committed to the programs. The Administrator is appointed by the President with the advice and consent of the Senate. While he operates under the general supervision of the Secretary of Commerce, he is charged by statute with the responsibility of administering the Bureau of Public Roads, 23 U.S.C. 303. And pursuant to the provisions of Reorganization Plan No. 5 of 1950, the Secretary of Commerce has, in effect, delegated to the Administrator the function of establishing the detailed framework under which the highway programs are to be carried out. Under these circumstances we believe it must be concluded that there is no authority to treat any State differently from any other in respect of their rights to Federal participation in cost incurred by them and, it follows, that to achieve uniformity there can be no retroactive waiver or exception to the governing rules in individual cases. In our reports to the Congress on reviews of selected activities of the Federalaid program, we consistently have expressed the view that effective administration of the program depends, principally, upon an orderly system of clearly defined procedures effectively enforced at all levels of the State highway departments and the Bureau.

Accordingly, you are advised that this Office will be required to disallow all future payments which may be made on the basis of a retroactive waiver of requirements stipulated in the policy and procedure memoranda issued by the Federal Highway Administrator. Recognizing that the misapplication of these memoranda in the past was widespread and of longstanding and that any attempt to correct them to a substantial degree would be virtually impossible, we do not propose that any action be taken with respect to them, including the situation in Virginia covered above.

758-984 O-65-5