A-55880, JUNE 23, 1934, 13 COMP. GEN. 462

A-55880: Jun 23, 1934

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SUCH MEANING IS NOT TO BE ENLARGED BY APPLICATION TO INCLUDE SURROUNDING GROUNDS. IT ESTABLISHES THE OBLIGATION OF THE ARCHITECTS AS DISTINGUISHED FROM THE UNDERTAKINGS OF THE GOVERNMENT AS SET FORTH IN ARTICLE 2 AND HAS NO REFERENCE TO THE AMOUNT OF THE FEE OR THE BASIS UPON WHICH IT IS TO BE ESTIMATED. THIS PROVISION IS CLEAR AND UNAMBIGUOUS AND ESTABLISHES THE BASIS UPON WHICH THE PERCENTAGE FEES OF THE ARCHITECTS ARE TO BE COMPUTED. IT IS TRUE. THAT THE SIDEWALKS WERE A PART OF THE APPROACH TO THE NEW CONSERVATORY. THAT THE TOPSOIL WAS USED IN THE GROUNDS AND INSIDE OF THE CONSERVATORY. THAT THE COST OF TRANSPLANTING WAS BROUGHT WITHIN THE SCOPE OF THE PROJECT BY THE CONGRESS. IS NOT SUFFICIENT TO CONSTITUTE ANY OF THE ITEMS INVOLVED A PART OF THE BUILDINGS OR THEIR EQUIPMENT.

A-55880, JUNE 23, 1934, 13 COMP. GEN. 462

CONTRACTS - ARCHITECTS' FEES UNDER A CONTRACT BY THE ARCHITECT OF THE CAPITOL FOR ARCHITECTURAL SERVICES IN CONNECTION WITH THE CONSTRUCTION OF PUBLIC BUILDINGS WHICH PROVIDES FOR A PERCENTAGE COMPENSATION BASED ON THE COST OF THE BUILDINGS AND THEIR EQUIPMENT, NO PART OF THE COST OF BEAUTIFYING AND/OR IMPROVING THE GROUNDS APPURTENANT TO SUCH BUILDINGS MAY BE INCLUDED IN COMPUTING THE AMOUNT OF THE ARCHITECTS' FEES. WORDS AND PHRASES--- BUILDING. THE TERM "BUILDING" HAS A RECOGNIZED MEANING, IMPORTING A STRUCTURE INCLOSED WITHIN WALLS AND COVERED BY A ROOF, AND SUCH MEANING IS NOT TO BE ENLARGED BY APPLICATION TO INCLUDE SURROUNDING GROUNDS. THE TERM "EQUIPMENT" AS APPLIED TO BUILDINGS ALSO HAS AN ESTABLISHED MEANING AND DOES NOT INCLUDE PLANTINGS, TOPSOIL, OR SIDEWALKS, ON SURROUNDING GROUNDS.

COMPTROLLER GENERAL MCCARL TO THE ARCHITECT OF THE CAPITOL, JUNE 23, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 22, 1934, RELATIVE TO THE INCLUSION OF THE FOLLOWING ITEMS AS PART OF THE BASIS FOR PAYMENT OF THE SIX PERCENT ARCHITECTS' FEE OF EDWARD H. BENNETT AND WILLIAM E. PARSONS FOR SERVICES IN CONNECTION WITH THE CONSTRUCTION OF THE NEW CONSERVATORY, BOTANIC GARDEN, UNDER CONTRACT ACBG-1, MARCH 4, 1930.

TABLE REMOVAL OF PLANTS ------------------------------------------- $4,066.20 COST OF TOPSOIL -------------------------------------------- 8,480.40 COST OF SIDEWALKS ----------------------------------------- - 5,158.35

ARTICLE 1 OF THE CONTRACT WITH THE ARCHITECTS, WHICH YOU QUOTE IN PART AS AUTHORITY FOR INCLUSION OF THE ITEMS ABOVE, DEALS EXCLUSIVELY WITH THE SCOPE OF THE SERVICES TO BE RENDERED BY THE ARCHITECTS UNDER THEIR CONTRACT. IT ESTABLISHES THE OBLIGATION OF THE ARCHITECTS AS DISTINGUISHED FROM THE UNDERTAKINGS OF THE GOVERNMENT AS SET FORTH IN ARTICLE 2 AND HAS NO REFERENCE TO THE AMOUNT OF THE FEE OR THE BASIS UPON WHICH IT IS TO BE ESTIMATED.

ARTICLE 2 OF THE CONTRACT PROVIDES IN PERTINENT PART THAT "THE PARTY OF THE FIRST PART (THE GOVERNMENT) ALSO AGREES TO PAY THE PARTIES OF THE SECOND PART, AS COMPENSATION, AN AMOUNT EQUAL TO SIX PERCENT (6 PERCENT) OF THE TOTAL COST OF THE BUILDINGS AND THEIR EQUIPMENT.'

THIS PROVISION IS CLEAR AND UNAMBIGUOUS AND ESTABLISHES THE BASIS UPON WHICH THE PERCENTAGE FEES OF THE ARCHITECTS ARE TO BE COMPUTED. IT IS TRUE, NO DOUBT, THAT THE SIDEWALKS WERE A PART OF THE APPROACH TO THE NEW CONSERVATORY, THAT THE TOPSOIL WAS USED IN THE GROUNDS AND INSIDE OF THE CONSERVATORY, AND THAT THE COST OF TRANSPLANTING WAS BROUGHT WITHIN THE SCOPE OF THE PROJECT BY THE CONGRESS. THIS, HOWEVER, IS NOT SUFFICIENT TO CONSTITUTE ANY OF THE ITEMS INVOLVED A PART OF THE BUILDINGS OR THEIR EQUIPMENT. THE TERM "BUILDING" HAS BEEN THE OBJECT OF DEFINITION BY THE COURTS TOO OFTEN TO REQUIRE DISCUSSION HERE. A BUILDING IS A STRUCTURE OR EDIFICE INCLOSING A SPACE WITHIN ITS WALLS AND USUALLY COVERED WITH A ROOF. SEE 9 CORPUS JURIS 685 FOR NUMEROUS DEFINITIONS TO THE SAME EFFECT. THE TERM EQUIPMENT, AS APPLIED TO BUILDINGS, ALSO HAS AN ESTABLISHED MEANING AND DOES NOT INCLUDE PLANTINGS, TOPSOIL, OR SIDEWALKS.

THIS OFFICE HAS HELD THAT A STEAM DISTRIBUTION SYSTEM BETWEEN A POWER PLANT AND PUBLIC BUILDING DID NOT CONSTITUTE A BUILDING. 10 COMP. GEN. 499; THAT LANDSCAPING WAS NOT A BUILDING AND THAT THE CONSTRUCTION OF PUBLIC ROADS WAS NOT A BUILDING. 11 COMP. GEN. 57; A 40066 AND A-40068, JANUARY 8, 1932. WHILE THE QUESTION INVOLVED IN THOSE CASES WAS DIFFERENT THE PRINCIPLE IS THE SAME. IT IS CLEAR THAT THE BUILDINGS AND THEIR EQUIPMENT COULD BE COMPLETE AND READY FOR OCCUPANCY WITHOUT REFERENCE TO APPROACHES OR THE BEAUTIFICATION OF THE SURROUNDING TERRITORY.

IN VIEW OF THE PLAIN CONTRACT PROVISIONS IT MUST BE HELD THAT THE 6 PERCENT FEE TO WHICH THE ARCHITECTS ARE ENTITLED IS TO BE COMPUTED UPON THE COST OF THE ACTUAL BUILDINGS AND THEIR EQUIPMENT WITHOUT REFERENCE TO EXTERIOR WALKS, TOPSOIL, OR PLANTING.

YOU ARE ADVISED, THEREFORE, THAT THE INCLUSION OF THE ITEMS HERE INVOLVED AS PART OF THE BASIS FOR DETERMINING THE AMOUNT OF THE ARCHITECTS' FEES IS NOT PROPER AND PAYMENT ON SUCH BASIS IS NOT AUTHORIZED.