A-92702, MARCH 14, 1938, 17 COMP. GEN. 739

A-92702: Mar 14, 1938

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" PAYMENT IS NOT AUTHORIZED FROM APPROPRIATED FUNDS FOR COST OF ALTERATIONS REQUIRED AFTER EXTENDED OCCUPANCY UNDER THE LEASE. AS NECESSARY TO THE PROPER CONDUCT OF ITS BUSINESS WERE MADE AT THE BEGINNING OF THE LEASE PERIOD AND THAT THE ALTERATIONS SUBSEQUENTLY MADE WERE NECESSARY ONLY FOR THE STORAGE OF OFFICE SUPPLIES. IS AS FOLLOWS: ON SEPTEMBER 21. THIS SPACE WAS OCCUPIED BY THE SOCIAL SECURITY BOARD UNTIL JULY 1. AT WHICH TIME A SUPPLEMENTAL LEASE WAS DRAWN COVERING AN ADDITIONAL 488 SQ.FT. ON THE COMMENCEMENT OF OCCUPANCY BY THE SOCIAL SECURITY BOARD THE PREMISES WERE PREPARED BY THE LESSOR IN ACCORDANCE WITH THE BOARD'S REQUIREMENTS. THE QUARTERS WERE KEPT IN THEIR ORIGINAL CONDITION UNTIL OCTOBER 1937.

A-92702, MARCH 14, 1938, 17 COMP. GEN. 739

LEASES - REPAIRS AND IMPROVEMENTS - ALTERATIONS SUBSEQUENT TO LESSOR'S INITIAL CONDITIONING OF PREMISES WHERE A LEASE PROVIDED THAT "THE LESSOR SHALL FURNISH TO THE GOVERNMENT DURING OCCUPANCY OF SAID PREMISES * * * ALL NECESSARY FLOOR COVERINGS, PARTITIONING, ALTERATIONS AND REPAIRS TO ENABLE THE SOCIAL SECURITY BOARD TO CONDUCT ITS PUBLIC BUSINESS PROPERLY AND PRIVATELY," PAYMENT IS NOT AUTHORIZED FROM APPROPRIATED FUNDS FOR COST OF ALTERATIONS REQUIRED AFTER EXTENDED OCCUPANCY UNDER THE LEASE, NOTWITHSTANDING SUCH ALTERATIONS, ETC., AS NECESSARY TO THE PROPER CONDUCT OF ITS BUSINESS WERE MADE AT THE BEGINNING OF THE LEASE PERIOD AND THAT THE ALTERATIONS SUBSEQUENTLY MADE WERE NECESSARY ONLY FOR THE STORAGE OF OFFICE SUPPLIES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, SOCIAL SECURITY BOARD, MARCH 14, 1938:

YOUR LETTER OF FEBRUARY 15, 1938, IS AS FOLLOWS:

ON SEPTEMBER 21, 1936, THE SOCIAL SECURITY BOARD ENTERED INTO A LEASING AGREEMENT WITH THE ALLEN BUILDING COMPANY FOR 1,812 SQ.FT. OF FLOOR SPACE ON THE FIFTEENTH FLOOR OF THE ALLEN BUILDING, DALLAS, TEXAS, SAID LEASE TO BE EFFECTIVE OCTOBER 1, 1936. PARAGRAPH 6 OF THIS LEASE PROVIDED IN PART AS FOLLOWS:

"* * * THE LESSOR SHALL FURNISH TO THE GOVERNMENT DURING OCCUPANCY OF SAID PREMISES, UNDER TERMS OF THIS LEASE, ALL NECESSARY FLOOR COVERINGS, PARTITIONING, ALTERATIONS AND REPAIRS TO ENABLE THE SOCIAL SECURITY BOARD TO CONDUCT ITS PUBLIC BUSINESS PROPERLY AND PRIVATELY.'

THIS SPACE WAS OCCUPIED BY THE SOCIAL SECURITY BOARD UNTIL JULY 1, 1937, AT WHICH TIME A SUPPLEMENTAL LEASE WAS DRAWN COVERING AN ADDITIONAL 488 SQ.FT. OF SPACE. ON THE COMMENCEMENT OF OCCUPANCY BY THE SOCIAL SECURITY BOARD THE PREMISES WERE PREPARED BY THE LESSOR IN ACCORDANCE WITH THE BOARD'S REQUIREMENTS. THE QUARTERS WERE KEPT IN THEIR ORIGINAL CONDITION UNTIL OCTOBER 1937. HOWEVER, DURING THAT YEAR THE PROBLEM OF STORAGE OF OFFICE SUPPLIES HAD INCREASED CONSIDERABLY, MAKING IT NECESSARY TO EITHER ENLARGE THE ROOM IN WHICH THE SUPPLIES WERE STORED OR STORE THE OVERFLOW IN SOME OTHER PORTION OF THE SPACE.

IT WAS FELT THAT THE SUPPLIES SHOULD BE KEPT SEGREGATED AT A SINGLE POINT, AND IT WAS, THEREFORE, DETERMINED THAT THE BETTER PLAN WOULD BE TO ENLARGE THE ROOM. A METHOD OF OBTAINING THIS DESIRED CHANGE IN PARTITIONING WAS CONSIDERED AND THE CONCLUSION WAS REACHED THAT THE ABOVE QUOTED CLAUSE, FROM PARAGRAPH 6 OF THE LEASE, DID NOT GRANT TO THE SOCIAL SECURITY BOARD THE RIGHT TO DEMAND SUCH A CHANGE, WITHIN THE SPACE LEASED, OF THE LESSOR; ESPECIALLY, SINCE THE SPACE HAD BEEN PROPERLY PREPARED BY HIM AT THE BEGINNING OF THE LEASING PERIOD.

IT WOULD APPEAR THAT UNDER ANY OTHER CONSTRUCTION THE LESSOR COULD BE REQUIRED TO INSTALL OR CHANGE ANY PARTITIONS WITHIN THE SPACE, REGARDLESS OF EXTENT OR REASONABLENESS, AT THE WHIM OF THE SOCIAL SECURITY BOARD. IS RESPECTFULLY SUBMITTED THAT SUCH CONSTRUCTION COULD NOT REASONABLY HAVE BEEN WITHIN THE CONTEMPLATION OF THE PARTIES TO THE LEASE.

AFTER REACHING THE ABOVE CONCLUSION, PURCHASE ORDER NO. 3282-38, A COPY OF WHICH IS ATTACHED, WAS WRITTEN, THE REQUESTED CHANGES WERE COMPLETED BY THE LESSOR AND THE VOUCHER, WHICH IS ALSO ENCLOSED, WAS SUBMITTED BY HIM. WITH RESPECT TO THE REASONABLENESS OF THE CHARGE, IT IS SUBMITTED THAT THE CHARGE MADE BY THE LESSOR IS FOR ONLY SUCH MATERIALS AS HE WAS REQUIRED TO PURCHASE FOR THE PARTITION CHANGE AND NO CHARGE WAS MADE FOR LABOR. ORDER TO CHECK THIS FIGURE, AN INFORMAL QUOTATION WAS OBTAINED FROM G. E. SMITH, 1510 NORTH HASKALL STREET, DALLAS, TEX. THIS QUOTATION WAS IN THE AMOUNT OF $60, WHICH DID NOT INCLUDE THE COST OF THREE DOORS, HARDWARE AND FACINGS.

IN THE LIGHT OF THE ABOVE FACTS, INFORMATION IS REQUESTED AS TO WHETHER OR NOT THE ATTACHED VOUCHER CAN BE PAID BY THE SOCIAL SECURITY BOARD IN THE AMOUNT OF $40.

UNDER THE PROVISION OF THE LEASE QUOTED IN YOUR SUBMISSION THE LESSOR BECAME OBLIGATED, NOT ONLY TO PLACE THE PREMISES IN PROPER CONDITION FOR OCCUPANCY FOR THE PUBLIC USE OF YOUR BOARD AT THE BEGINNING OF THE LEASE PERIOD, BUT TO FURNISH "DURING OCCUPANCY OF SAID PREMISES" UNDER THE LEASE "ALL NECESSARY PARTITIONING, ALTERATIONS," ETC., TO ENABLE THE BOARD TO CONDUCT ITS PUBLIC BUSINESS PROPERLY AND PRIVATELY. WHILE AS YOU STATE THE ALTERATIONS, ETC., MADE AT THE BEGINNING OF THE LEASE MAY HAVE BEEN ADEQUATE TO MEET THE NEEDS OF THE BOARD FOR ONE YEAR CHANGES WERE LATER REQUIRED AND UNDER THE LEASE THE LESSOR WAS OBLIGATED TO MAKE THE SAME. THERE WAS, THEREFORE, NO AUTHORITY OF LAW FOR AGREEING WITH THE LESSOR THAT THE GOVERNMENT WOULD PAY FOR SUCH SERVICES WHICH CONSTITUTE AN OBLIGATION OF THE LESSOR.

IN THE CIRCUMSTANCES PAYMENT ON THE VOUCHER WHICH IS RETURNED HEREWITH IS NOT AUTHORIZED.

AS TO THE STATEMENTS IN THE ANTEPENULTIMATE PARAGRAPH OF YOUR LETTER IT MAY BE SAID THAT IT MUST HAVE BEEN REASONABLY WITHIN THE CONTEMPLATION OF THE PARTIES TO THE LEASE TO ABIDE BY THE CLEAR AND UNAMBIGUOUS TERMS OF THE LEASE, AND THAT CHANGES INVOLVING PARTITIONS, ALTERATIONS, C., OF THE LEASED PREMISES WOULD BE REQUIRED BY THE BOARD ONLY WHEN NECESSARY TO ENABLE IT TO CONDUCT ITS PUBLIC BUSINESS AND NOT BECAUSE OF A MERE "WHIM OF THE SOCIAL SECURITY BOARD.' OTHERWISE THE OBVIOUS IMPLICATION WOULD BE THAT WHILE THE COST OF SUCH "WHIM" COULD BE CHARGED TO PUBLIC FUNDS IT COULD NOT BE CHARGED TO THE LESSOR.