686 F.2d 925 | Ct. Cl. | 1982
delivered the opinion of the court:
Plaintiff operates food and accommodation services at Yosemite National Park (Yosemite) as a concessioner of the National Park Service (NPS). Under a long-term contract
I.
The facts have been stipulated by the parties. In 1963, plaintiff and NPS entered into a 30-year concession contract for the provision to the public of food and accommodation services in Yosemite. Because plaintiffs facilities are inside the park and the park is itself isolated, the Government has complete control over plaintiffs access to the basic utilities needed to operate its facilities. Consequently, the concession contract requires that NPS supply plaintiff with utilities, and throughout the life of the contract NPS has provided plaintiff with electrical, water and sewer, and solid waste disposal services. Section 6(a) of the contract states only that the rates charged be "reasonable.”
At Yosemite, NPS obtained the electricity it provided to plaintiff from two sources. During the period in question, 1974 to 1980, about 60 percent (per year, on the average) of plaintiffs electricity was generated at a hydroelectric plant, owned and operated by NPS, in the park. The remaining 40 percent (approximately) was obtained by NPS from Pacific Gas & Electric Company (PG&E), the public utility company which supplies electricity to the Yosemite area. NPS distributed the PG&E electricity throughout the park on its own distribution grid.
The method NPS used to set electricity rates is, in its essential outline, straightforward. From 1974 to 1978, NPS based its charges on the rate schedule of PG&E. Beginning in 1978, NPS used instead the average of the rates of PG&E and two other area utility companies, Southern California Edison Company and Sierra Pacific Power Company. This rate-setting method may be called a comparative-rate system.
Plaintiff points out that, while 60 percent of the electricity NPS supplied was purely hydroelectric (from the NPS generator at Yosemite), NPS charged plaintiff as if 100 percent of the electricity were generated by a combination of hydro, nuclear, and fossil fuels. As a result, plaintiff says, it was overcharged for 60 percent of the electricity it used, because no nuclear or fossil fuel was used in its production.
In essence, plaintiff is arguing that a cost-based system should be used instead of the comparative-rate system. While plaintiff says it would accept the use of the utilities’ rates as a starting point for calculating NPS rates, it insists that ultimately the NPS rates must bear a close relation to the actual cost to NPS. The legal question presented in this case is whether the contract and the relevant statutes and regulations require a cost-based system — that is, one whose validity rests ultimately on its relationship to the actual costs to NPS of producing the electricity — or whether a rational comparative-rate system is permissible.
A.
The NPS rates in this case are governed by what might be described as several levels of authority. The most directly applicable level is the contract itself, section 6(a) of which states:
The Secretary [of the Interior] shall furnish utilities to the Concessioner, when available, and at reasonable rates to be fixed by the Secretar$_¡\ for use in connection with the operations authorized hereunder. [Emphasis supplied.]
The contract, however, offers no further definition of "reasonable rates.”
The term "reasonable,” by itself, could mean reasonable in relation to the Government’s cost of providing the electricity; or, it could mean reasonable in relation to the rates plaintiff would otherwise have to pay to obtain the electricity from utility companies, in short, fair market value. The contract simply offers no basis for choosing between these meanings. Under the plain words of the contract, then, we cannot say that the NPS comparative-rate system is unreasonable.
Taken as a whole, section 6(a) points to a more definite meaning of "reasonable.” The phrase "to be fixed by the Secretary” suggests that the parties contemplated an established procedure which would give meaning to the otherwise vague term "reasonable.” As discussed at length below, there are such statutory and regulatory provisions for fixing these prices. Since, as we find, these provisions require a reasonable price to be set in either of the senses discussed above, it makes the most sense to read "reasonable rates” in section 6(a) of the contract to mean in accordance with the applicable statutes and regulations.
The comparative-rate method used by NPS was established in a memorandum, dated January 24, 1973, from the Acting Director, Western Region. It provides:
All charges for utility services require the application of sound business management practices. Accordingly, local rates will be established at comparable commercial prices charged in the community being used by the concessioner to support and justify the respective charges for meals or lodging or services provided the public. This policy is consistent with the intent of Congress (31 U.S.C. 483[a]) and the Office of Management and Budget (Circular A-25) in that the resulting rate(s) will recover costs to the fullest extent possible and as fair and equitable, taking into consideration value to the recipient, public interest served, and other pertinent facts. [Emphasis supplied.]
There can be no question that the NPS practice of averaging local utility rates is in accordance with this policy memorandum, and plaintiff does not contend otherwise.
The basic statutory authority for the provision by NPS of electricity to concessioners is found in the organic act of the National Park System.
In order to facilitate the administration of the National Park System, the Secretary of the Interior is authorized to carry out the following activities, and he may use applicable appropriations for the aforesaid system for the following purposes:
* * * * *
(4) Utility services for concessioners; reimbursement
Furnishing, on a reimbursement of appropriation basis, all types of utility services to concessioners, contractors, permittees, or other users of such services, within the National Park System: Provided, That reimbursements for cost of such utility services may be credited to the appropriation current at the time reimbursements are received. [Emphasis supplied.]
Plaintiff argues that the italicized words are, so to speak, words of limitation rather than words of purchase. That is,
The legislative history of section lb(4) makes it fairly clear that the Government’s position is the correct one, or at least that plaintiffs position is not the correct one. Concern about overcharging concessioners had nothing to do with the enactment of section lb(4); concern about undercharging by the Government was the central theme. The only substantive comments on paragraph (4) are in letters from the Secretary of the Interior to the respective committee chairmen, recommending approval of paragraph (4). In both letters the Secretary stresses the tremendous post-war increase in use of the parks, the unnecessary expense of NPS generating all of its own electricity, and the efficiency of NPS buying its electricity elsewhere and charging for the cost of obtaining and distributing it.
C.
The Department of the Interior, of which NPS is part, is subject to statutes and regulations which set fiscal policy for the entire Government. The regulation applicable to this contract is Bureau of the Budget Circular No. A-25,
Lease or sale. Where federally owned resources or property are leased or sold, a fair market value should be obtained. Charges are to be determined by the application of sound business management principles, and so far as practicable and feasible in accordance with comparable commercial practices. Charges need not be limited to the recovery of costs; they may produce net revenues to the Government.
*****
In determining the charges for the lease and sale of Government-owned resources or property, [the agency shall] apply sound business management principles and comparable commercial practices. [Emphasis supplied.]
The provision of electricity to plaintiff is the sale of a federally owned resource. Therefore, Circular No. A-25 expressly does not require NPS to use a cost-based system; rather, it mandates a comparative-rate system based on the fair market value of the goods or services. The NPS rate system is in accordance with Circular No. A-25 and we must go to a higher level of authority if we are to discover a basis for a challenge to the NPS rates.
The statutory authority pursuant to which Circular No. A-25 was promulgated is the Independent Offices Appropriation Act, 1952 (IOAA),
It is the sense of the Congress that any work, service, publication, report, document, benefit, privilege, authority, use, franchise, license, permit, certificate, registration or similar thing of value or utility performed, furnished, provided, granted, prepared, or issued by any Federal agency * * * to or for any person (including groups, associations, organizations, partnerships, corporations, or businesses) * * * shall be selfsustaining to the full extent possible, and the head of each Federal agency is authorized by regulation (which, in the case of agencies in the executive branch, shall be as uniform as practicable and subject to such policies as the President may prescribe) to prescribe therefor such fee, charge, or price, if any, as he shall determine, in case none exists, or redetermine, in case of any existing one, to be fair and equitable taking into consideration direct and indirect cost to the Government, value to the recipient, public policy or interest served, and other pertinent facts, and any amount so determined or redetermined shall be collected and paid into the Treasury as miscellaneous receipts * * *. [Emphasis supplied.]
Two things are apparent from the plain words of the statute: it gives only the most general indication of how fees and rates are actually to be set, and it applies to a wide variety of federal activities.
The IOAA is like section lb(4) in the sense that its words themselves express no preference for a cost-based or a comparative-rate system. The term "selfsustaining” is no more precise than "on a reimbursement of appropriation basis.” In addition, the factors in the IOAA to be considered in rate-setting go far beyond simply reimbursement of cost, and there is no indication that the non-cost factors are
The legislative history of the IOAA is sparse and unillu-minating in much the same way that the legislative history of section lb(4) is. In general the reports simply repeat the provision without comment.
The Committee is concerned that the Government is not receiving full return from many of the services which it renders to special beneficiaries. * * *
The problem addressed was undercharging by the Government; overcharging was not considered.
After examination of the relevant contractual, regulatory, and statutory provisions, we conclude that the NPS comparative-rate system was properly instituted. It was within the guidelines provided by the IOAA and Circular No. A-25, and it was therefore "reasonable” within the meaning of the contract.
III..
Plaintiff, however, raises the objection that the IOAA is not to be construed so broadly, relying upon a series of cases which describe the IOAA’s application to licensing fees.
A.
In National Cable I the Supreme Court was presented with a Federal Communications Commission (FCC) fee schedule for cable television licenses. The FCC had charged each cable system a filing fee plus an annual fee of 30 cents per subscriber. The Court held that the IOAA must be narrowly construed to avoid constitutional difficulties. The danger was that the fee imposed by the FCC could become a tax and that the taxation power must not be broadly delegated by Congress to agencies.
In New England Power, companion to National Cable I, the Court concentrated on the difference between individual and public benefit. That case involved annual assessments by the Federal Power Commission (FPC) on electric utilities and natural gas companies, designed to defray the general administrative expenses of the agency. The FPC fees were set aside because they were justified only by general public or industry benefit and were for general governmental expenses. They were therefore in the nature of taxes.
Our primary concern here is with the National Cable I case which discussed the basis of fees, as it is clear that plaintiff received an individual benefit within the meaning of New England Power.
The cost standard laid down by the Supreme Court refers to those direct and indirect costs to the Government of the licensing process; it does not refer to the ultimate value to the recipient, i.e., the profits made possible by the license.
The Fifth Circuit, in Mississippi Power & Light Co. v. U.S. Nuclear Regulatory Comm’n, adopted less strict language:
We find the Commission’s formula to be a reasonable method of estimating such fees. Notwithstanding the petitioner’s assertion to the contrary, the NRC in establishing its costs is only obligated to come forth with reasonable approximations, not precise calculations. [Emphasis supplied.]
To the same effect is Circular No. A-25, which was expressly approved by the Supreme Court in New England Power,
Costs shall be determined or estimated from the best available records in the agency, and new cost accounting systems will not be established solely for this purpose.
Under the Supreme Court’s interpretation of the IOAA in fee cases, cost must be the ultimate basis of fees, but the required relationship between fees and costs can be satisfied by a fee system which has a reasonable, not necessarily exact, relation to cost. Even if the fee cases apply to the instant case, then, plaintiff must show that the NPS method makes no reasonable approximation of cost.
B.
The fee cases, however, are not apposite. In National Cable I and New England Power, the Supreme Court said that it is an imposition in the nature of a tax when Congress creates the need for a license and then charges more to obtain the license than it costs the Government to issue it. Such a system goes beyond regulation — regulation is the registration, inspection, or allocation on which the license is based — and enters the realm of public policy by imposing additional costs — taxes. The Court held that taxes cannot be imposed by an administrative agency on the basis of a general delegation of power.
In the present case, by contrast, the Government has not created the need for electricity, nor is the service provided a regulatory one. Plaintiff, to carry on its chosen business, would have to buy electricity in any case, anywhere, regardless of the ownership of the land on which it operates and regardless of the existence or lack of a scheme of regulation. That is, anyone in plaintiffs position, whether the grantor of the concession is the Government or a wholly private enterprise, would have to make arrangements to obtain electricity from the grantor.
This is the significance of the contract, which is the feature of this case that distinguishes it from the license fee
This point might be clarified by distinguishing between the activities of the Government acting as sovereign and those acting as landowner. The Supreme Court has used this distinction on occasion in other areas, though it is unclear how much the Court is willing to rely on it as the basis for decisions.
In National Cable I, the Government’s power to allocate the airwaves and to issue licenses came not from its ownership of the airwaves but from its sovereign power to regulate certain activities — in the case of the FCC, interstate commerce. While it might be argued that the airwaves are in a sense a public resource capable of being owned, that is surely not the case with other examples of regulation to which the IOAA and National Cable I have been applied, like bank examinations and environmental impact statements. Certainly the Government’s right to examine banks does not derive from its ownership of the bank’s assets. Likewise, it would be somewhat bizarre to characterize the Government’s interest in the whole environment as ownership of it.
In contrast, the electricity provided by the Government to plaintiff is the product of Government-owned resources (land and water) and capital (the hydroelectric plant), both of which the Government has acquired and over which it exercises the rights of ownership. In selling the electricity pursuant to a contract, the Government is not performing a uniquely governmental function; it is selling a Government-owned resource. To give another example, if the Government rents out space in a building it owns, it does so by virtue of its ownership of the building, not by virtue of its
The distinction between sovereign acts and ownership acts ties in with the Supreme Court’s language in National Cable I. Taxation is a sovereign activity; ownership does not confer such a power. To the extent that the Government limits its role to ownership, it is not taxing. The Government can only assess the electric rates at issue here by virtue of a contract with plaintiff, voluntarily entered. The Government cannot charge everyone in the hotel business for electricity; it can do so here because it owns Yosemite and has a contract with plaintiff. So long as the contract term — "reasonable rates” — is not violated, as we have held, the charges are within the Government’s power.
National Cable I and New England Power involved no contract and thus do not apply to the present facts. A cost-based system is not required in the instant case. Under the contract, the agency does not run the risk of imposing an unauthorized tax, so the 10AA here need not be "read * * * narrowly to avoid constitutional problems.”
C.
The Government takes the above distinction one step further and argues that the sale of electricity should be viewed as the sale of surplus property. If the sale of electricity is thus characterized, the Government contends, the Government is at liberty to charge whatever rate it can get.
This argument must be rejected for three reasons. The first is that the surplus property statute does not apply to this situation, nor does the Government argue that it does.
We conclude that in the sale of electricity the rates charged are not limited to recovery of costs in the way that licensing fees are, but at the same time the rates are not completely unlimited like the sale of surplus property. The sale of electricity occupies a middle ground between licensing fees and surplus property. In a word, the electric rates must be reasonable, either in the sense of a cost basis or of a comparable rate. As this is the standard required by the contract, we restate our conclusion that the contract term and the 10AA impose the same standard.
D.
Our purpose in Part III has been to determine whether judicial interpretation of the IOAA renders the lease or sale provision of Circular No. A-25 unlawful, which it must be if plaintiffs cost-based theory is correct. We find that the provision is not contrary to law. Circular No. A-25, whose fee provisions were expressly approved by the Supreme Court in New England Power,
The provision entitled "Lease or sale,” quoted above,
As we said above, the Yosemite system is well within the ambit of Circular No. A-25. It is a comparative-rate system, and its method of comparison is designed to ensure that the rates charged represent fair market value. The utility prices are easily accessible to all and the system is practicable, feasible, and requires no new accounting systems. We therefore conclude that the NPS rate system is within the power authorized by the 10AA.
IV.
The burden of proof on plaintiffs motion for summary judgment is to show that the NPS system was illegal or unauthorized. So far we have analyzed the NPS system on its own merits and found it acceptable. But, more to the point, plaintiff has failed to make any real showing that the Yosemite system fails to pass muster. Even accepting plaintiffs argument — which we do not — that the cost-based system of National Cable I is required, plaintiff has presented no concrete evidence that NPS rates exceed the standard of "reasonable approximation” described in Part III-A above. Plaintiffs argument, while logically coherent as far as it goes, does not go beyond a mere sketch of the rate-setting system. Plaintiff considers some costs but does not consider others. It is unrealistic to limit cost considerations to energy costs — water versus petroleum versus uranium — where major capital and maintenance expenses are also involved.
There is no basis in the record for the claim that the cost to NPS of producing hydroelectric power is in actual fact
Plaintiff has also failed, in support of its motion, to present a coherent alternative to the present system. While espousing a cost-based system, plaintiff is apparently willing to accept certain anomalies — like the taxes which the utility companies must pay and NPS does not — in order to keep the system simple, in accordance with Circular No. A-25.
The first problem with plaintiffs suggestion is the usual line-drawing one. While we are not overly concerned with the mere fact of line-drawing,
Plaintiffs failure to meet its burden requires our denial of its motion for summary judgment. Defendant’s cross-motion should be granted because we have found that the NPS rate system is in accordance with law and the contract. Defendant has also counterclaimed for underpayment by plaintiff, if the basis of the rates must be cost.
We therefore conclude, after careful consideration of the parties’ submissions and after oral argument, that the NPS rate system at issue here was properly imposed. Plaintiffs motion for summary judgment is denied; defendant’s cross-motion for summary judgment is granted; defendant’s counterclaim is dismissed; and the petition is dismissed.
We do not mean to belittle the direct effect of the contractual terms on the determination of rates in this case. Did we not conclude that the statutes and regulations require rates which are reasonable within the meaning of § 6(a), we would not hold that "reasonable” means in accordance with the statute and regulations.
16 U.S.C. § 1b(4) (1976).
H.R. Rep. No. 116, 83d Cong., 1st Sess. 3 (1953) (letter of Secretary of the Interior); S. Rep. No. 723, 83d Cong., 1st Sess. 4, reprinted in 1953 U.S. Code Cong. & Ad. News 2240, 2242 (letter of Secretary of the Interior).
Id.
S. Rep. No. 723, supra note 3, at 2 (committee statement) and at 4 (Secretary’s letter), 1953 U. S. Code Cong. & Ad. News at 2241, 2242; H.R. Rep. No. 116, supra note 3, at 3.
See Haig v. Agee, 453 U.S. 280, 300-01 (1981); Estate of Sanford v. Commissioner, 308 U.S. 39, 44 (1939); Cohen v. United States, 181 Ct. Cl. 400, 406, 384 F.2d 1001, 1004 (1967); Kleinfelter v. United States, 162 Ct. Cl. 88, 92-94, 318 F.2d 929, 931-32 (1963).
Bureau of the Budget, Circular No. A-25 (Sept. 23, 1959) [hereinafter Circular No. A-25].
Id., jj 2. Plaintiff does not challenge the applicability of Circular No. A-25 to fnAISD rfltAQ
Circular No. A-25, ¶¶ 3(b), 4(e).
Independent Offices Appropriation Act, 1952, Pub. L. No. 82-137, § 501, 65 Stat. 290 (1951), codified at 31 U.S.C. § 483a (1976).
Id.
H.R. Rep. No. 384, 82d Cong., 1st Sess. 29-30 (1951); S. Rep. No. 418, 82d Cong., 1st Sess. (1951); H.R. Rep. No. 753,82d Cong., 1st Sess. (1951) (conference report); H.R. Rep. No. 869,82d Cong., 1st Sess. (1951) (conference report).
H.R. Rep. No. 384, supra note 12, at 2.
Id. at 3 ("authorize and encourage the charging or increasing of fees”; "to revise charges where present charges are too low”).
The sole reference to § 501 in the debates follows this pattern, emphasizing FCC and ICC license and inspection fees. 97 Cong. Rec. 4809 (1951) (remarks of Rep. Yates).
S. Rep. No. 2120, 81st Cong., 2d Sess. 3, 15 (1950) (report of a special Committee on Expenditures in the Executive Departments).
National Cable Television Ass’n v. United States, 415 U.S. 336 (1974) [hereinafter National Cable I].
Federal Power Comm’n v. New England Power Co., 415 U.S. 345 (1974) [hereinafter New England Power].
National Cable I, 415 U.S. at 340-41.
Id. at 341-43. The Court read "value to recipient” in the IOAA to mean cost to the Government. Id.
Id., at 343-44.
Id. at 344.
New England Power, 415 U.S. at 348-51.
The existence of an incidental public benefit (in this case, accommodations and food service to park visitors) does not overcome the individual nature of the benefit to plaintiffs business of being supplied with electricity. Electronic Indus. Ass’n v. F.C.C., 554 F.2d 1109, 1115 (D.C. Cir. 1976).
The four FCC cases decided in the District of Columbia Circuit in 1976, and virtually all of the more recent ones, deal mainly with the allocation of Government costs between individual and public benefit; that is, they deal with the basis of the fee rather than the calculation of its amount. National Cable Television Ass’n v. F.C.C., 554 F.2d 1094 (D.C. Cir. 1976) [hereinafter National Cable II\; Electronic Indus. Ass’n, 554 F.2d 1109; National Ass’n of Broadcasters v. F.C.C., 554 F.2d 1118 (D.C. Cir. 1976); Capital Cities Communications, Inc. v. F.C.C., 554 F.2d 1135 (D.C. Cir. 1976). As that is not an issue in this case, we do not discuss the main thrust of those cases.
See First Nat’l Bank v. Smith, 445 F. Supp. 1117 (D. Minn. 1977).
See Alyeska Pipeline Serv. Co. v. United States, 224 Ct. Cl. 240, 624 F.2d 1005 (1980); Colorado-Ute Elec. Ass’n v. Watt, 533 F. Supp. 197 (D. Colo. 1982); Public Serv. Co. v. Andrus, 433 F. Supp. 144 (D. Colo. 1977).
See Mississippi Power & Light Co. v. U.S. Nuclear Regulatory Comm’n, 601 F.2d 223 (5th Cir. 1979), cert. denied, 444 U.S. 1102 (1980).
See Alumet v. Andrus, 607 F.2d 911 (10th Cir. 1979); Nevada Power Co. v. Watt, 515 F. Supp. 307 (D. Utah 1981).
See Reinoehl v. Hershey, 426 F.2d 815 (9th Cir. 1970).
See Diapulse Corp. of America v. F.D.A., 500 F.2d 75 (2d Cir. 1974).
National Cable II, 554 F.2d at 1107.
Id. at 1106; National Ass’n of Broadcasters, 554 F.2d at 1130 n.28.
National Cable II, 554 F.2d at 1106, 1108; Electronic Indus. Ass’n, 554 F.2d at 1114, 1115 n.13, 1116; National Ass’n of Broadcasters, 554 F.2d at 1129 n.28; Capital Cities, 554 F.2d at 1138.
See Colorado-Ute Elec. Ass’n, 533 F. Supp. at 202; Public Serv. Co., 433 F. Supp. at 156.
Mississippi Power & Light Co., 601 F.2d at 232, citing National Ass’n of Broadcasters, 554 F.2d at 1130 n.28.
New England Power, 415 U.S. at 349-50.
Circular No. A-25, ¶ 5(a).
National Cable I, 415 U.S. at 341-42.
See note 1 and accompanying text, supra.
The Supreme Court has recently developed the distinction between sovereign and ownership activities in cases involving the application of the Sherman Act to state and local government activities. The Parker doctrine states that the Sherman Act does not prohibit the situation where "[t]he state in adopting and enforcing the prorate program made no contract or agreement * * * but, as sovereign, imposed the restraint as an act of government.” (Emphasis supplied.) Parker v. Brown, 317 U.S. 341, 352 (1943) (California marketing program for raisins). In Goldfarb v. Virginia State Bar, 421 U.S. 773, 791-92 (1975), the Court, applying the Parker doctrine, found that a state bar association could be a governmental entity (therefore exempt) for some purposes and a commercial organization for others. The Court held that, in enforcing minimum fees for attorneys’ services, the bar was engaging in a commercial activity subject to the Sherman Act. Id.
City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389 (1978), involved the application of Parker to a municipally owned electricity plant. The plurality opinion itself was quite narrow, but it was accompanied by opinions by Justices Brennan and Marshall and Chief Justice Burger, which emphasized the significance of the sovereign nature of an activity. Justice Brennan restated the "as sovereign” idea in Parker, id. at 409-10, 413, and Justice Marshall also emphasized the fact that a governmental activity is "imposed.” Id. at 418. The Chief Justice advocated the sovereignty distinction at great length, id. at 418-26, stating that "the particular undertaking at issue here — the supplying of electric service — has not traditionally been the prerogative of the State.” Id. at 424. This position has strong antecedents in the holding of United States v. California, 297 U.S. 175 (1936), that a state-owned and -operated railroad was a common carrier subject to federal regulation, id. at 181,183-84, though that Court also stated that "we think it unimportant to say whether the state conducts its railroad in its ’sovereign’ or in its 'private’ capacity.” Id. at 183.
Similar ideas were expressed in National League of Cities v. Usery, 426 U.S. 833 (1976), which was much cited in City of Lafayette. In Usery, the Court held that the states cannot be bound, constitutionally, to federal labor standards. The Court held that employment of people to do its work is one of a state’s "integral operations in areas of traditional governmental functions,” id. at 852, and that the Federal Government cannot regulate the "States qua States.” Id. at 847. While apparently embracing the sovereign/ownership distinction conceptually ("traditional governmental functions”) — and clearly reading California that way, id. at 854-55 & n.18— the expansion of "integral governmental functions” to all state employment may blur the distinction in practice.
Justice Frankfurter criticized the distinction in his opinions for the Court in New
National Cable I, 415 U.S. at 342.
40 U.S.C. §§ 472,484 (1976); 41 C.F.R. subpart 101-45.3 (1981).
Circular No. A-25, H 2.
New England Power, 415 U.S. at 349-50.
See text at n.9, supra.
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See Village of Belle Terre v. Boraas, 416 U.S. 1, 8 & n.5 (1974).
We stated recently in Acker v. United States, 223 Ct. Cl. 281, 290, 620 F.2d 802, 806 (1980):
"• 4 * [T]he construction of a statute by an agency charged with its administration*412 is given deference and entitled to great weight. Udall v. Tallman, 380 U.S. 1 (1965); Bowles v. Seminole Rock Co., 325 U.S. 410 (1945); Crawford v. United States, 179 Ct. Cl. 128, 142-43, 376 F.2d 266, 274 (1967), cert. denied, 389 U.S. 1041 (1968). Moreover, the passage of time increases the assumption that Congress is aware of the agency interpretation of a statute and concurs in it, since no subsequent legislation has altered it. Benton v. United States, 203 Ct. Cl. 263, 488 F.2d 1017 (1973); Alabama v. United States, 198 Ct. Cl. 683, 461 F.2d 1324, cert. denied, 409 U.S. 1023 (1972). * * *” Both of these considerations apply to this case.
Obviously, the mere fact of a counterclaim does not provide a factual basis for denying plaintiff summary judgment, but it is one of the symptoms of the nonexistence of a factual basis for plaintiffs motion.