A-33272, SEPTEMBER 26, 1930, 10 COMP. GEN. 140

A-33272: Sep 26, 1930

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IS PROHIBITED UNDER THE TERMS OF SECTION 3733 OF THE REVISED STATUTES. OR UNLESS A PROJECT SPECIFICALLY APPROPRIATED FOR MUST FAIL IF THE BUILDINGS ARE NOT CONSTRUCTED. 26 COMP. THE APPROPRIATION FOR THE FIFTEENTH DECENNIAL CENSUS IS NOT AVAILABLE FOR THE CONSTRUCTION OF AN ADDITION OR EXTENSION TO TEMPORARY BUILDING "D. HOLDING THAT THE APPROPRIATION FOR THE FIFTEENTH DECENNIAL CENSUS IS NOT AVAILABLE FOR THE CONSTRUCTION OF AN ADDITION OR EXTENSION TO TEMPORARY BUILDING "D. IN THE DECISION REFERENCE WAS MADE TO DECISION OF APRIL 14. PROVIDED THE BUILDINGS ARE NECESSARY INSTRUMENTALITIES IN THE ADMINISTRATION AND EXECUTION OF THE APPROPRIATION ACT. THAT DECISION WAS HELD INAPPLICABLE IN THE INSTANT CASE.

A-33272, SEPTEMBER 26, 1930, 10 COMP. GEN. 140

PUBLIC BUILDINGS - CONSTRUCTION - LUNCH ROOMS THE CONSTRUCTION OF TEMPORARY BUILDINGS, AS WELL AS PERMANENT BUILDINGS, IS PROHIBITED UNDER THE TERMS OF SECTION 3733 OF THE REVISED STATUTES, IN THE ABSENCE OF A SPECIFIC APPROPRIATION THEREFOR, OR UNLESS A PROJECT SPECIFICALLY APPROPRIATED FOR MUST FAIL IF THE BUILDINGS ARE NOT CONSTRUCTED. 26 COMP. DEC. 829 DISTINGUISHED. THE APPROPRIATION FOR THE FIFTEENTH DECENNIAL CENSUS IS NOT AVAILABLE FOR THE CONSTRUCTION OF AN ADDITION OR EXTENSION TO TEMPORARY BUILDING "D," SIXTH STREET AND MISSOURI AVENUE, WASHINGTON, .C., OCCUPIED BY THE CENSUS BUREAU EMPLOYEES, TO BE USED AS A LUNCH ROOM FOR THE EMPLOYEES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, SEPTEMBER 26, 1930:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF SEPTEMBER 16, 1930, REQUESTING A RECONSIDERATION OF THE DECISION OF THIS OFFICE, DATED SEPTEMBER 9, 1930, A-33272, HOLDING THAT THE APPROPRIATION FOR THE FIFTEENTH DECENNIAL CENSUS IS NOT AVAILABLE FOR THE CONSTRUCTION OF AN ADDITION OR EXTENSION TO TEMPORARY BUILDING "D," SIXTH STREET AND MISSOURI AVENUE, WASHINGTON, D.C., OCCUPIED BY THE CENSUS BUREAU EMPLOYEES, TO BE USED AS A LUNCH ROOM FOR THE EMPLOYEES.

IN THE DECISION REFERENCE WAS MADE TO DECISION OF APRIL 14, 1920, 26 COMP. DEC. 829, THAT (QUOTING FROM THE SYLLABUS):

AN APPROPRIATION FOR GENERAL PURPOSES MAY BE USED TO CONSTRUCT BUILDINGS OF A TEMPORARY CHARACTER NOT INTENDED OR DESIGNED FOR PERMANENT USE OR OCCUPATION, PROVIDED THE BUILDINGS ARE NECESSARY INSTRUMENTALITIES IN THE ADMINISTRATION AND EXECUTION OF THE APPROPRIATION ACT.

THAT DECISION WAS HELD INAPPLICABLE IN THE INSTANT CASE, FOR THE FOLLOWING REASON:

WHILE THE EXISTING BUILDING "D" IS CLASSED AS TEMPORARY, IT IS DESIGNED AND USED PRIMARILY TO PROVIDE OFFICE SPACE FOR GOVERNMENT ACTIVITIES, AND COULD BE, AND HAS BEEN, USED BY OTHER BRANCHES OF THE SERVICE, THE CENSUS BUREAU BEING ASSIGNED THERETO FOR THE TIME BEING, AND NEITHER THE EXISTING BUILDING NOR ANY ADDITION THERETO REASONABLY COULD BE CLASSED AS A "NECESSARY INSTRUMENTALITY IN THE ADMINISTRATION AND EXECUTION OF THE APPROPRIATION ACT" FOR THE BUREAU OF THE CENSUS. SEE 21 COMP. DEC. 420.

YOU NOW ASK CONSIDERATION THAT THE PROPOSED CONSTRUCTION FOR LUNCH ROOM FACILITIES MEETS THE CONDITIONS LAID DOWN IN SAID DECISION OF APRIL 14, 1920, BECAUSE (1) "IT IS A WELL-ESTABLISHED FACT THAT A LUNCH ROOM OR CAFETERIA IS A NECESSARY ADJUNCT TO THE PROPER FUNCTIONING OF A DEPARTMENT OR LARGE BUREAU; " (2) IT IS A FACT THAT THERE ARE NO BUILDINGS NEAR TO BUILDING "D" WHICH COULD BE RENTED AND USED AS A CAFETERIA; AND (3) THE BUILDING WILL BE TEMPORARY, NOT TO BE USED AFTER THE FIFTEENTH DECENNIAL CENSUS PERIOD, AND WILL BE CONSTRUCTED MOSTLY OF SECONDHAND MATERIAL.

THE DECISIONS OF THE ACCOUNTING OFFICERS CONSISTENTLY HAVE RECOGNIZED THAT TEMPORARY BUILDINGS MAY BE CLASSED AS "NECESSARY INSTRUMENTALITIES IN THE ADMINISTRATION AND EXECUTION OF THE APPROPRIATION ACT," THE COST OF CONSTRUCTION OF WHICH IS PROPERLY CHARGEABLE UNDER A GENERAL APPROPRIATION WITHOUT REGARD TO THE PROHIBITION CONTAINED IN SECTION 3733, REVISED STATUTES, ONLY WHEN THE PROPOSED TEMPORARY BUILDINGS ARE SO ABSOLUTELY ESSENTIAL THAT A FAILURE TO CONSTRUCT THEM WOULD RENDER IT IMPOSSIBLE TO ACCOMPLISH THE PURPOSE FOR WHICH THE APPROPRIATION WAS MADE. THE TEMPORARY BUILDINGS AUTHORIZED TO BE CONSTRUCTED FROM GENERAL APPROPRIATIONS HAVE HAD TO DO WITH THE DIRECT EXECUTION OF THE WORK FOR WHICH THE APPROPRIATION TO BE USED HAS BEEN PROVIDED. FOR INSTANCE, IN THE DECISION OF APRIL 14, 1920, SUPRA, THE TEMPORARY BUILDINGS WERE FOR STORING SURPLUS WAR SUPPLIES FOR USE IN THE CONSTRUCTION OF NATIONAL FOREST ROADS. IN DECISION OF AUGUST 19, 1922, 2 COMP. GEN. 133, AN APPROPRIATION FOR AIRPLANE MAIL SERVICE WAS HELD AVAILABLE FOR CONSTRUCTION OF HANGARS, SHOPS, AND STOREHOUSES ABSOLUTELY ESSENTIAL TO THE OPERATION OF THE SERVICE. IN DECISION OF APRIL 5, 1928, 7 COMP. GEN. 629, AN APPROPRIATION FOR CERTAIN INVESTIGATIONS OF THE PUBLIC HEALTH SERVICE WAS HELD AVAILABLE TO CONSTRUCT A COVER OF THE GREENHOUSE TYPE TO PROTECT A SERIES OF ARTIFICIAL CHANNELS USED IN RESEARCH STUDIES, AND THERE WERE CITED IN THAT DECISION OTHER DECISIONS HOLDING THAT THERE WAS NO CONTRAVENTION OF SECTION 3733, REVISED STATUTES, BY THE ERECTION OF A TEMPORARY SHED TO HOUSE A FUMIGATION TANK USED IN FUMIGATING COTTON AGAINST THE PINK BOLLWORM, OR CONSTRUCTION OF A CABINET 30 FEET SQUARE FOR USE OF THE PUBLIC HEALTH SERVICE IN AN EXPERIMENTAL STUDY OF THE EFFECT OF LIGHT IN RELATION TO DISEASES OF MAN, OR ERECTION OF EMERGENCY POST OFFICES OF A TEMPORARY CHARACTER OF CONSTRUCTION. IT WILL BE NOTED, HOWEVER, THAT IN EACH INSTANCE THE CONSTRUCTION OF TEMPORARY BUILDINGS HAD A DIRECT RELATION TO THE WORK AUTHORIZED TO BE PERFORMED UNDER THE APPROPRIATION SOUGHT TO BE USED FOR THE CONSTRUCTION.

WHILE IT HAS BEEN HELD PROPER TO INCLUDE PROVISION FOR A LUNCH ROOM IN PLANS FOR THE CONSTRUCTION OF A NEW GOVERNMENT BUILDING FOR WHICH A SPECIFIC APPROPRIATION HAS BEEN MADE, 9 COMP. GEN. 217, IN THE ABSENCE OF A REQUIREMENT OF LAW TO SUBSIST ITS EMPLOYEES, I AM UNABLE TO AGREE THAT "A LUNCH ROOM OR A CAFETERIA IS A NECESSARY ADJUNCT TO THE PROPER FUNCTIONING OF A DEPARTMENT OR A LARGE BUREAU.' THERE IS NO GENERAL RESPONSIBILITY ON THE GOVERNMENT TO PROVIDE LUNCHEON FACILITIES FOR ITS EMPLOYEES, AND THERE IS NO DIRECT CONNECTION BETWEEN THE WORK OF TAKING THE CENSUS AND THE CONSTRUCTION OF A LUNCH ROOM TO BE USED BY EMPLOYEES ENGAGED ON SUCH WORK. BUILDING "D" HAS BEEN IN USE AS A GOVERNMENT OFFICE FOR A NUMBER OF YEARS, YET HERETOFORE IT HAS NOT BEEN ADVANCED THAT A LUNCH ROOM WAS ABSOLUTELY ESSENTIAL TO THE WORK PERFORMED THEREIN. THERE WOULD BE NO DIFFERENCE IN THIS RESPECT BETWEEN BUILDING "D" AND ANY OTHER GOVERNMENT BUILDING IN WASHINGTON WHEREIN THERE ARE NO LUNCH-ROOM FACILITIES. ALSO, THE FACT THAT THERE MAY BE NO OTHER BUILDINGS NEAR AVAILABLE TO RENT AS A LUNCH ROOM CAN NOT OPERATE TO AUTHORIZE THE USE OF PUBLIC FUNDS TO CONSTRUCT A BUILDING IN CONTRAVENTION OF THE PROVISION OF SECTION 3733, REVISED STATUTES.

WITH REFERENCE TO YOUR STATEMENT THAT THE BUILDING WILL BE TEMPORARY AND PROPOSED TO BE CONSTRUCTED MOSTLY OF SECOND-HAND MATERIAL, THIS OFFICE DOES NOT QUESTION THE TEMPORARY CHARACTER OF THE PROPOSED BUILDING, NOR THAT ECONOMY WOULD BE PRACTICED BY THE USE OF SECOND-HAND MATERIAL. THE POINT IS THAT THE CONSTRUCTION OF TEMPORARY BUILDINGS, AS WELL AS PERMANENT BUILDINGS, IS PROHIBITED UNDER THE TERMS OF SECTION 3733, REVISED STATUTES, IN THE ABSENCE OF A SPECIFIC APPROPRIATION THEREFOR, OR UNLESS A PROJECT SPECIFICALLY APPROPRIATED FOR MUST FAIL IF THE BUILDINGS ARE NOT CONSTRUCTED. SUCH IS NOT THE SITUATION HERE. IN THIS CONNECTION YOUR ATTENTION IS INVITED PARTICULARLY TO DECISION OF FEBRUARY 2, 1926, 5 COMP. GEN. 575, IN WHICH THE FOLLOWING IS QUOTED FROM A DECISION OF MARCH 27, 1925, A 8295:

THE QUESTION AS TO WHAT CONSTITUTES A PUBLIC BUILDING OR A PUBLIC IMPROVEMENT WITHIN THE MEANING OF THIS SECTION HAS BEEN THE SUBJECT OF NUMEROUS DECISIONS BOTH BY FORMER COMPTROLLERS OF THE TREASURY AND BY THIS OFFICE, AND THE GENERAL AND UNIFORM HOLDING SEEMS TO HAVE BEEN THAT ANY STRUCTURE IN THE FORM OF A BUILDING NOT CLEARLY OF A TEMPORARY CHARACTER IS A PUBLIC BUILDING OR PUBLIC IMPROVEMENT WITHIN THE MEANING OF SAID SECTION, AND THE PURCHASE OR CONSTRUCTION THEREOF IS NOT AUTHORIZED UNLESS SPECIFIC APPROPRIATION IS MADE THEREFOR. 10 COMP. DEC. 683; 13 ID. 355; 16 ID. 685; 21 ID. 420; 2 COMP. GEN. 14; ID. 477. IN THIS CONNECTION YOUR ATTENTION IS INVITED IN PARTICULAR TO DECISION OF AUGUST 12, 1911, IN WHICH IT WAS HELD THAT AN APPROPRIATION "FOR THE INVESTIGATION AND IMPROVEMENT OF METHODS OF CROP PRODUCTION UNDER SEMIARID OR DRY-LAND CONDITIONS" WAS NOT AVAILABLE FOR THE ERECTION OF A SO-CALLED TEMPORARY SHED TO SHELTER THE NECESSARY FARM ANIMALS AND A PORTABLE HOUSE 12 X 16 FEET FOR THE TEMPORARY USE OF EMPLOYEES, NOTWITHSTANDING THE FACT THAT THE SECRETARY OF AGRICULTURE REPRESENTED THESE BUILDINGS AS BEING "ABSOLUTELY ESSENTIAL IN CONNECTION WITH THE USE TO WHICH THE LAND IS TO BE PUT BY THE DEPARTMENT" IN CARRYING OUT THE PURPOSE OF THE APPROPRIATION.