A-38036, AUGUST 29, 1931, 11 COMP. GEN. 88

A-38036: Aug 29, 1931

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PUBLIC BUILDINGS - MAINTENANCE AND OPERATION AS SOON AS TITLE TO BUILDINGS OCCUPIED BY THE UNITED STATES UNDER LEASE HAS BEEN ACQUIRED BY THE GOVERNMENT THEY BECOME COMPLETED AND OCCUPIED BUILDINGS UNDER THE CONTROL OF THE TREASURY DEPARTMENT AND THE EXPENSE OF THE MAINTENANCE AND OPERATION IS THEN PAYABLE FROM PUBLIC BUILDING APPROPRIATIONS UNDER THE TREASURY DEPARTMENT. THIS DEPARTMENT HAS ACQUIRED BUILDINGS ON SUCH SITES WHICH WERE AT THE TIME OF ACQUISITION OCCUPIED BY POSTAL ACTIVITIES UNDER LEASE BY THE POST OFFICE DEPARTMENT. THE POST OFFICE DEPARTMENT HAS DESIRED TO CONTINUE THE USE OF THE BUILDINGS UNTIL SUCH TIME AS THE DEPARTMENT WAS READY TO PROCEED WITH THE CONSTRUCTION OF THE NEW BUILDING.

A-38036, AUGUST 29, 1931, 11 COMP. GEN. 88

PUBLIC BUILDINGS - MAINTENANCE AND OPERATION AS SOON AS TITLE TO BUILDINGS OCCUPIED BY THE UNITED STATES UNDER LEASE HAS BEEN ACQUIRED BY THE GOVERNMENT THEY BECOME COMPLETED AND OCCUPIED BUILDINGS UNDER THE CONTROL OF THE TREASURY DEPARTMENT AND THE EXPENSE OF THE MAINTENANCE AND OPERATION IS THEN PAYABLE FROM PUBLIC BUILDING APPROPRIATIONS UNDER THE TREASURY DEPARTMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, AUGUST 29, 1931:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 4, 1931 AS FOLLOWS:

IN CERTAIN INSTANCES IT HAS HAPPENED THAT IN PURCHASING SITES FOR POST- OFFICE BUILDINGS, THIS DEPARTMENT HAS ACQUIRED BUILDINGS ON SUCH SITES WHICH WERE AT THE TIME OF ACQUISITION OCCUPIED BY POSTAL ACTIVITIES UNDER LEASE BY THE POST OFFICE DEPARTMENT, AND THE POST OFFICE DEPARTMENT HAS DESIRED TO CONTINUE THE USE OF THE BUILDINGS UNTIL SUCH TIME AS THE DEPARTMENT WAS READY TO PROCEED WITH THE CONSTRUCTION OF THE NEW BUILDING. A NOTABLE EXAMPLE IS THE ACQUISITION OF THE POST OFFICE AND CUSTOMHOUSE SITE AT ST. PAUL, MINNESOTA. THE AUTHORIZATION FOR THE SITE IS CONTAINED IN THE SECOND DEFICIENCY ACT DATED MARCH 4, 1929, AS FOLLOWS:

"SAINT PAUL (MINNESOTA) POST OFFICE, CUSTOMHOUSE, AND SO FORTH: FOR ACQUISITION OF THE COMMERCIAL STATION IN BLOCK 30 BOUNDED BY JACKSON, THIRD, AND SIBLEY STREETS, AND SO MUCH OF THE BALANCE OF SAID BLOCK AS MAY BE NECESSARY, AND COMMENCEMENTS OF CONSTRUCTION, $900,000, UNDER AN ESTIMATED TOTAL COST OF $2,700,000: PROVIDED, THAT NOT MORE THAN $480,000 SHALL BE PAID FOR SUCH COMMERCIAL STATION.'

THE QUESTION HAS ARISEN AS TO WHETHER THE ANNUAL APPROPRIATIONS OF THE OFFICE OF THE SUPERVISING ARCHITECT ARE AVAILABLE FOR THE MAINTENANCE AND OPERATION OF SUCH BUILDING BY THE TREASURY DEPARTMENT AFTER TITLE HAS PASSED TO THE GOVERNMENT AND THE LEASES THEREON HAVE CEASED TO EXIST.

IN THE PRESENT INSTANCE THE BUILDING AND THE SITE THEREOF WERE PURCHASED TOGETHER WITH ADDITIONAL LAND, NOT FOR THE PURPOSE OF A PERMANENT OCCUPATION OF THE BUILDING, BUT TO DEMOLISH SAME AND TO CONSTRUCT ON THE LAND ACQUIRED A LARGER BUILDING FOR POSTAL PURPOSES.

IN 24 COMP. DEC. 305, THE COMPTROLLER OF THE TREASURY HELD THAT WHERE A GOVERNMENT ACTIVITY WAS IN OCCUPATION OF A BUILDING ON LAND ACQUIRED AS A PART OF A SITE FOR A NEW FEDERAL BUILDING IT MIGHT BE REPAIRED OUT OF THE ANNUAL APPROPRIATIONS TO SUCH EXTENT AS IS NECESSARY TO MAINTAIN THE BUILDING IN ITS EXISTING CHARACTER, BUT THAT NO REPAIRS IN THE NATURE OF IMPROVEMENTS MIGHT BE MADE. IN THE CASE WHICH CALLED FORTH THE REQUEST FOR THE DECISION JUST MENTIONED, THE TREASURY DEPARTMENT MADE THE NECESSARY REPAIRS FOR THE BUILDING TO MAKE IT USABLE FOR THE POST OFFICE DEPARTMENT, BUT PAID NONE OF THE EXPENSES FOR MAINTENANCE AND OPERATION. IT IS BELIEVED THAT THE COMPTROLLER'S VIEW WAS BASED ON THE THEORY THAT A BUILDING OF THIS CHARACTER WAS NOT A "PUBLIC BUILDING" WITHIN THE MEANING OF THE TERM AS USED IN THE APPROPRIATIONS UNDER THE CONTROL OF THE SUPERVISING ARCHITECT'S OFFICE.

UNDER THE AUTHORIZATION OF MARCH 5, 1928 (45 STAT. 178), AUTHORIZING THE PURCHASE OF ADDITIONAL LAND AND THE BUILDING THEREON AT BINGHAMTON, NEW YORK, THE TREASURY DEPARTMENT PURCHASED THE BUILDING UNDER LEASE TO THE POST OFFICE DEPARTMENT FOR A PARCEL-POST STATION, AND SINCE THE PURCHASE THEREOF HAS PAID THE OPERATING EXPENSES OF THE BUILDING. UNDER DATE OF MARCH 4, 1931, CONGRESS AUTHORIZED THE DEMOLITION OF THE BUILDING ON THE SITE AND THE CONSTRUCTION OF A NEW BUILDING UNDER A LIMIT OF COST OF $575,000.

IT WILL BE APPARENT FROM THE FOREGOING THAT DOUBT HAS ARISEN AS TO THE STATUS OF BUILDINGS OCCUPIED BY FEDERAL ACTIVITIES, WHICH ARE ACQUIRED BY THE TREASURY DEPARTMENT AS PORTIONS OF FEDERAL BUILDING SITES--- THAT IS, WHETHER THEY SHOULD BE TREATED AS BUILDINGS IN A STATUS ANALOGOUS TO BUILDINGS RENTED BY THE FEDERAL ACTIVITY OCCUPYING THE SAME--- EVEN THOUGH RENT HAS CEASED WITH THE ACQUISITION OF THE PROPERTY BY THE GOVERNMENT, OR WHETHER THEY SHOULD BE TREATED AS COMPLETED AND OCCUPIED PUBLIC BUILDINGS UNDER THE CONTROL OF THE TREASURY DEPARTMENT, SO AS TO PERMIT THE USE OF THE ANNUAL APPROPRIATIONS IN CONNECTION WITH THE CARE AND MAINTENANCE AND REPAIR THEREOF. IF IT WERE POSSIBLE IN ALL CASES TO ORDER THE IMMEDIATE VACATION OF BUILDINGS AS SOON AS TITLE IS ACQUIRED, THE QUESTION WOULD NOT BE SO VITAL, BUT IN MOST CASES THE BUILDINGS WILL CONTINUE TO BE OCCUPIED FOR CONSIDERABLE PERIODS, PENDING THE COMPLETION OF WORKING DRAWINGS AND SPECIFICATIONS AND UNTIL SUCH TIME AS PROVISION CAN BE MADE FOR THEIR TEMPORARY OR PERMANENT HOUSING.

A DIFFERENT SITUATION IS PRESENTED IN THE CASE OF A BUILDING PURCHASED IN CONNECTION WITH THE ACQUISITION OF THE SITE FOR THE POST OFFICE BUILDING TO BE ERECTED AT CHICAGO, ILLINOIS, UNDER AUTHORIZATION CONTAINED IN THE SECOND DEFICIENCY ACT APPROVED JULY 3, 1930, WHICH PROVIDES AS FOLLOWS:

"CHICAGO (ILLINOIS) POST OFFICE, AND SO FORTH: THE AUTHORIZATION CONTAINED IN THE ACT APPROVED MAY 29, 1928 (45 STAT., P. 920), FOR A BUILDING FOR THE ACCOMMODATION OF THE POST OFFICE AND OTHER GOVERNMENT OFFICES, UNDER A TOTAL ESTIMATED LIMIT OF COST OF $14,250,000, IS HEREBY AMENDED SO AS TO AUTHORIZE AND EMPOWER THE SECRETARY OF THE TREASURY, IN HIS DISCRETION, IN LIEU THEREOF TO SELL AT SUCH TIME AND ON SUCH TERMS AS HE DEEMS PROPER AT PUBLIC SALE, AFTER DUE ADVERTISEMENT, THE SITE FOR SAID BUILDING HERETOFORE ACQUIRED, AND TO CONVEY THE SAME TO THE PURCHASER BY THE USUAL QUITCLAIM DEED, AND TO ACQUIRE A NEW SITE WITHIN THE BLOCK BOUNDED BY HARRISON, VAN BUREN, AND CANAL STREETS AND THE SO-CALLED VAN BUREN POSTAL STATION, SUBJECTTO THE RIGHT OF THE GRANTORS TO USE THE SUBSURFACE THEREOF FOR RAILROAD PURPOSES, AND NECESSARY RESERVATIONS FOR LIGHT AND AIR; TO CONSTRUCT ON SUCH NEW SITE A BUILDING FOR THE ACCOMMODATION OF THE POST OFFICE AND OTHER GOVERNMENT OFFICES; TO ACQUIRE THE SITE OF THE SO-CALLED VAN BUREN POSTAL STATION WITH THE BUILDINGS THEREON, TOGETHER WITH THE FIXED EQUIPMENT THEREIN AND TO REMODEL, ENLARGE, AND REPAIR SAID LAST NAMED BUILDING FOR POSTAL PURPOSES, SUCH PURCHASE TO BE SUBJECT TO THE USE OF SUCH PORTIONS OF THE BUILDING BY THE GRANTOR AND ON SUCH TERMS AS THE SECRETARY OF THE TREASURY MAY DEEM PROPER, ALL AT A TOTAL ESTIMATED COST OF $21,000,000.'

IN THIS CASE THE BUILDING KNOWN AS THE DEARBORN STREET PARCEL-POST STATION IS TO BE INCORPORATED AS A PART OF THE COMPLETED STRUCTURE, AND IS TO BE OCCUPIED UNTIL THE NEW STRUCTURE IS SUFFICIENTLY COMPLETED TO PERMIT OF MOVING THE OCCUPANTS THEREIN WHEN THE BUILDING IN QUESTION WILL BE REMODELED AND MADE PART OF THE NEW BUILDING.

POSSIBLY THIS STRUCTURE, DUE TO THE FACT THAT IT IS NOT TO BE ENTIRELY DEMOLISHED, AND IS TO BE UTILIZED IN PART, MAY BE CONSIDERED AS A PUBLIC BUILDING, AND THEREFORE MAY BE MAINTAINED FROM APPROPRIATIONS UNDER THE CONTROL OF THE SUPERVISING ARCHITECT'S OFFICE.

YOUR CONSIDERATION AND AN EXPRESSION OF YOUR OPINION ARE THEREFORE RESPECTFULLY REQUESTED AS TO WHAT EXTENT THE ANNUAL APPROPRIATIONS OF THE TREASURY DEPARTMENT SHOULD BE UTILIZED IN THIS CONNECTION, OR WHETHER THE POST OFFICE DEPARTMENT, OR OTHER FEDERAL ACTIVITY OCCUPYING BUILDING ACQUIRED IN THE MANNER DESCRIBED, SHOULD CONTINUE TO OPERATE AND MAINTAIN THE BUILDINGS AND SITES SO LONG AS THEY ARE PERMITTED TO OCCUPY THEM PRIOR TO THE CONSTRUCTION OF FEDERAL BUILDINGS ON SUCH SITES.

IN THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1231-1234, UNDER THE GENERAL HEADINGS "PUBLIC BUILDINGS, REPAIRS, EQUIPMENT, AND GENERAL EXPENSES" AND "OPERATING EXPENSES, PUBLIC BUILDINGS," ARE GROUPED VARIOUS APPROPRIATIONS FOR EXPENSES IN CONNECTION WITH PUBLIC BUILDINGS, ALL OF WHICH ARE SPECIFICALLY APPLICABLE TO "COMPLETED AND OCCUPIED PUBLIC BUILDINGS * * * UNDER THE CONTROL OF THE TREASURY DEPARTMENT.' IN THE SPECIFIC APPROPRIATIONS FOR "REPAIRS AND PRESERVATION OF PUBLIC BUILDINGS" AND "MECHANICAL EQUIPMENT FOR PUBLIC BUILDINGS" ARE FOUND PROVISIONS FOR---

* * * REPAIRS AND PRESERVATIONS OF BUILDINGS NOT RESERVED BY VENDORS ON SITES UNDER THE CONTROL OF THE TREASURY DEPARTMENT ACQUIRED FOR PUBLIC BUILDINGS OR THE ENLARGEMENT OF PUBLIC BUILDINGS, THE EXPENDITURES ON THIS ACCOUNT FOR THE CURRENT FISCAL YEAR NOT TO EXCEED 15 PERCENTUM OF THE ANNUAL RENTAL OF SUCH BUILDINGS--- AND

* * * FOR INSTALLATION AND REPAIR OF MECHANICAL EQUIPMENT * * * IN BUILDINGS NOT RESERVED BY VENDORS ON SITES UNDER THE CONTROL OF THE TREASURY DEPARTMENT ACQUIRED FOR PUBLIC BUILDINGS OR THE ENLARGEMENTS OF PUBLIC BUILDINGS, THE TOTAL EXPENDITURES ON THIS ACCOUNT FOR THE CURRENT FISCAL YEAR NOT TO EXCEED 10 PERCENTUM OF THE ANNUAL RENTALS OF SUCH BUILDINGS.

THE LIMITATION OF EXPENDITURES TO A PERCENTAGE OF THE RENTALS WITH RESPECT TO BUILDINGS NOT RESERVED BY VENDORS WOULD INDICATE THAT THESE SPECIFIC PROVISIONS HAVE REFERENCE TO BUILDINGS WHICH WERE NOT TO BE USED BY THE UNITED STATES, BUT MIGHT BE RENTED TO PRIVATE PARTIES PENDING THEIR DEMOLITION. YOUR SUBMISSION, HOWEVER, RELATES TO BUILDINGS UNDER LEASE TO THE UNITED STATES UP TO THE TIME THEY ARE ACQUIRED BY THE UNITED STATES AND WHICH IT IS DESIRED TO CONTINUE TO OCCUPY, EITHER INDEFINITELY OR TEMPORARILY, UNTIL ARRANGEMENTS CAN BE MADE FOR THE ERECTION OF A NEW BUILDING UPON THE SITE.

UNDER SUCH CIRCUMSTANCES THE BUILDINGS MUST BE CONSIDERED AS "COMPLETED AND OCCUPIED PUBLIC BUILDINGS" UNDER THE CONTROL OF THE TREASURY DEPARTMENT FROM THE TIME THE TITLE THERETO VESTS IN THE UNITED STATES AND SO LONG AS THEY CONTINUE TO BE OCCUPIED FOR PUBLIC PURPOSES. ACCORDINGLY, THE EXPENSES OF THEIR MAINTENANCE AND OPERATION WOULD BE PAYABLE UNDER THE PUBLIC BUILDINGS APPROPRIATIONS UNDER THE TREASURY DEPARTMENT. IN THE DECISION IN 24 COMP. DEC. 305, CITED IN YOUR SUBMISSION, IT WAS HELD THAT EXPENSES OF TEMPORARY REPAIRS AND PRESERVATION, BUT NOT IMPROVEMENTS, OF BUILDINGS UPON SITES PURCHASED BY THE GOVERNMENT MIGHT BE PAID UNDER PUBLIC BUILDINGS APPROPRIATIONS. THIS WAS NOT BASED UPON ANY DETERMINATION, AS SUGGESTED BY YOU, THAT THE BUILDINGS WERE NOT PUBLIC BUILDINGS WITHIN THE MEANING OF THE APPROPRIATIONS, BUT UPON THE FACT THAT THE APPROPRIATION UNDER CONSIDERATION DID NOT PROVIDE FOR IMPROVEMENTS. SEE, ALSO, A.D. 7824, AUGUST 23, 1923, WITH RESPECT TO IMPROVEMENTS IN THE GRAHAM BUILDING; AND A.D. 7809, AUGUST 17, 1923, WITH RESPECT TO REPAIRS AND IMPROVEMENTS TO THE ANNEX TO THE SANDUSKY, OHIO, POST OFFICE.

IN VIEW OF THE FOREGOING, THERE WOULD APPEAR FOR CONSIDERATION IN THIS CONNECTION WHETHER UNEXPENDED AMOUNTS OF THE APPROPRIATIONS FOR RENT OF SUCH BUILDINGS SHOULD NOT REVERT TO THE TREASURY, AND IT IS REQUESTED THAT THIS OFFICE BE ADVISED FROM TIME TO TIME OF THE BUILDINGS WHICH HAVE BEEN ACQUIRED FOR THE USE OF THE GOVERNMENT, WITH A VIEW TO SUCH ACTION ON THIS PHASE OF THE MATTER AS MAY BE REQUIRED.