B-125125, OCT. 5, 1955

B-125125, OCT. 5, 1955

TO HONORABLE E. F. MANSURE, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 8, 1955, REQUESTING ADVICE AS TO WHETHER WE WOULD BE REQUIRED TO OBJECT TO A PROPOSED PLAN FOR THE INSTALLING OF EMPLOYEE-OWNED AIR CONDITIONING UNITS IN CERTAIN BUILDINGS. THE ENCLOSURES RECEIVED WITH YOUR LETTER CONSIST OF NEWSPAPER CLIPPINGS WHICH TEND TO CONVEY THE IMPRESSION THAT WORKING CONDITIONS IN SO-CALLED TEMPORARY BUILDINGS IN WASHINGTON, D.C., ARE BAD BECAUSE OF THE EXTREME HEAT AND HUMIDITY AND THAT CERTAIN EMPLOYEES WHO WORK IN THOSE BUILDINGS HAVE OFFERED TO FURNISH THEIR OWN AIR CONDITIONERS IN ORDER TO PERFORM THEIR DUTIES EFFICIENTLY.

YOU STATE THAT AVAILABLE FUNDS OF THE GENERAL SERVICES ADMINISTRATION ARE INADEQUATE FOR THE FURNISHING OF SUCH EQUIPMENT AT GOVERNMENT EXPENSE AND THAT EMPLOYEES HAVE REQUESTED PERMISSION TO INSTALL THEIR OWN AIR CONDITIONING UNITS. IN THAT CONNECTION, YOU POINT OUT THAT THE GOVERNMENT HAS PROVIDED AIR CONDITIONING IN BUILDINGS IN MANY LOCATIONS AND CITE AMONG ITS ADVANTAGES THAT IT INCREASES THE EFFICIENCY OF EMPLOYEES AND AVOIDS THE NECESSITY FOR DISMISSALS DURING HOT WEATHER.

YOU CONCLUDE THAT IT IS ADMINISTRATIVELY CONSIDERED DESIRABLE TO COMPLY WITH THE EMPLOYEES' REQUEST IF A PROPER WAY CAN BE FOUND TO PROTECT THE INTERESTS OF BOTH THE GOVERNMENT AND THE EMPLOYEE. TO THAT END, YOUR ADMINISTRATION HAS DEVELOPED A PLAN WHICH, IT BELIEVES, IS COMPATIBLE WITH EXISTING LAW AND THE ADMINISTRATIVE PROBLEMS INVOLVED. THE PLAN SUBMITTED FOR APPROVAL IS SET OUT IN YOUR LETTER AS FOLLOWS:

"THE PROGRAM FOR INSTALLATION OF EMPLOYEE-OWNED AIR CONDITIONING UNITS WOULD INCLUDE BUILDINGS WHERE WE HAVE NO PLANS FOR CENTRAL AIR CONDITIONING AT A LATER DATE. WE WOULD DETERMINE AT PERIODIC INTERVALS FOR EACH BUILDING THE NUMBER OF EMPLOYEES WHO WANT TO INSTALL THE UNIT AT THEIR EXPENSE SO THAT DETERMINATION MAY BE MADE AS TO ESTIMATED COST OF INSTALLATION (WIRING, REWIRING, ETC.).

"IN ORDER TO TAKE ADVANTAGE OF THE GOVERNMENT'S ABILITY TO OBTAIN A LOW UNIT PRICE BY VOLUME BUYING, WE PROPOSE TO PURCHASE THE REQUIRED UNITS THROUGH THE BUILDINGS MANAGEMENT FUND, OBTAINING REIMBURSEMENT FOR THE PURCHASE PRICE AND COST OF INSTALLATION FROM THE EMPLOYEES IN WHOM TITLE WILL THEN BE VESTED.

"WE WILL ENTER INTO A RENT-FREE OR NOMINAL RENT LEASE ARRANGEMENT WITH THE INDIVIDUAL EMPLOYEE OR GROUP OF EMPLOYEES FOR THE LEASE OF THE UNIT BY THE GOVERNMENT, PROVIDE THE NECESSARY INSTALLATION, AND PAY FOR THE ELECTRIC CURRENT CONSUMED AND RECURRING REPAIRS.'

THE PROPOSED PLAN RAISES THE QUESTION FOR DECISION IN THE PRESENT MATTER, NAMELY, WHETHER THE GENERAL SERVICES ADMINISTRATION MAY LEGALLY ENTER INTO AN AGREEMENT WITH A GOVERNMENT EMPLOYEE OR GROUP OF EMPLOYEES UNDER WHICH THE COST OF PURCHASE AND INSTALLATION OF AIR CONDITIONING UNITS WILL BE INITIALLY CHARGED TO THE "BUILDINGS MANAGEMENT FUND" WITH A VIEW TO SUBSEQUENT REIMBURSEMENT OF THE FUND BY THE EMPLOYEES.

THE "BUILDINGS MANAGEMENT FUND, GENERAL SERVICES ADMINISTRATION," PROPOSED TO BE CHARGED WITH THE COST OF PURCHASE AND INSTALLATION OF THE AIR CONDITIONING UNITS IN QUESTION, WAS ESTABLISHED BY SECTION 1 OF THE ACT OF JULY 12, 1952, 65 STAT. 594, 40 U.S.C. 450 (F) TO BE OPERATED ON A REIMBURSABLE BASIS TO FACILITATE THE OPERATIONS AND ACCOUNTING INCIDENT TO BUILDINGS MANAGEMENT FUNCTIONS AND RELATED SERVICES AUTHORIZED BY LAW TO BE PERFORMED BY THE GENERAL SERVICES ADMINISTRATION.

AS INDICATED IN YOUR LETTER, THAT ACT PERMITS REIMBURSEMENT TO THE FUND FROM ANY AGENCY, PERSON, OR ORGANIZATION TO WHICH SERVICES, ETC., ARE FURNISHED. HOWEVER, IT IS NOT UNDERSTOOD HERE ON WHAT THEORY OR BASIS THE INSTALLATION OF AIR CONDITIONING UNITS IN THE BUILDINGS IN QUESTION, THE PRIMARY BENEFIT OF WHICH WILL INURE TO THE GOVERNMENT EVEN THOUGH THE EMPLOYEES HOUSED THEREIN WILL BE BENEFITED, MAY BE REGARDED AS THE FURNISHING TO THE EMPLOYEES A BUILDINGS MANAGEMENT SERVICE FOR THE FINANCING OF WHICH THE FUND WAS ESTABLISHED. ON THE OTHER HAND, IT SEEMS CLEAR FROM YOUR LETTER THAT THE USE OF THE FUND TO FINANCE THE COST OF INSTALLING AIR CONDITIONING UNITS IN THE BUILDINGS STEMS FROM THE INADEQUACY OF FUNDS MADE AVAILABLE IN YOUR OPERATING APPROPRIATIONS FOR SUCH PURPOSES. HENCE, IF THE FUND WERE REIMBURSED BY THE EMPLOYEES, IT WOULD NOT BE ON ACCOUNT OF THE RECEIPT OF A SERVICE RENDERED TO THEM BY THE GENERAL SERVICES ADMINISTRATION, BUT MERELY IN THE NATURE OF AN ADJUSTMENT TO CORRECT AN IMPROPER CHARGE TO THE FUND, A USE OF THE FUND NOT PROVIDED BY THE ACT UNDER WHICH IT WAS ESTABLISHED.

MOREOVER, THE PROPOSED PLAN FOR THE PURCHASE AND INSTALLATION OF THE AIR CONDITIONING UNITS CONSTITUTES, IN PRACTICAL EFFECT, NOTHING MORE THAN THE PURCHASE AND SALE BY THE GOVERNMENT OF SUCH EQUIPMENT. NO STATUTE HAS BEEN BROUGHT TO OUR ATTENTION AND NONE HAS BEEN FOUND WHICH WOULD AUTHORIZE THE GENERAL SERVICES ADMINISTRATION TO PROCURE AIR CONDITIONERS FOR GOVERNMENT PERSONNEL EVEN WHERE THE GOVERNMENT IS COMPENSATED THEREFOR OR REIMBURSED IN KIND. TOO, ASSUMING THAT IN THE INSTANT CASE THE PURCHASE OF SUCH EQUIPMENT FROM THE FUND WERE OTHERWISE PROPER, THE AUTHORITY OF YOUR ADMINISTRATION TO CONVEY LEGAL TITLE THEREIN TO SUCH PERSONNEL WOULD, INDEED, BE VERY DOUBTFUL IN VIEW OF THE SPECIFIC STATUTES GOVERNING THE DISPOSITION OF GOVERNMENT EXCESS OR SURPLUS PERSONAL PROPERTY.

THUS, THE PROPOSED PLAN FOR THE USE OF THE BUILDINGS MANAGEMENT FUND TO FINANCE INITIALLY THE PURCHASE AND INSTALLATION OF AIR CONDITIONING UNITS IN CERTAIN BUILDINGS WITH ULTIMATE REIMBURSEMENT OF THE COST THEREOF BY GOVERNMENT PERSONNEL MUST BE REGARDED AS NOT ONLY CONTRARY TO THE AUTHORIZED USES OF SUCH FUND BUT IN CONTRAVENTION OF SECTION 3678, REVISED STATUTES, 31 U.S.C. 628, WHICH PROVIDES THAT ALL SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE AND FOR NO OTHERS. ACCORDINGLY, IT MUST BE HELD THAT SUCH PLAN IS NOT AUTHORIZED UNDER EXISTING LAW AND, THEREFORE, MAY NOT BE APPROVED BY US.

IN THIS CONNECTION, IT IS UNDERSTOOD INFORMALLY FROM A REPRESENTATIVE OF YOUR ADMINISTRATION THAT THE PROGRAM ALSO CONTEMPLATES, WHEN REQUESTED BY GOVERNMENT PERSONNEL, THE RENTAL OF EMPLOYEE-OWNED AIR CONDITIONING UNITS. UNDER SUCH A PLAN IT IS PROPOSED TO ENTER INTO A NOMINAL OR RENT- FREE LEASE AGREEMENT WITH THE INDIVIDUAL EMPLOYEE OR GROUP OF EMPLOYEES OWNING SUCH EQUIPMENT, THE AGREEMENT TO PROVIDE THAT THE EMPLOYEES OWNING SUCH EQUIPMENT, THE AGREEMENT TO PROVIDE THAT THE EMPLOYEES PAY THE INSTALLATION COSTS THEREOF AND THAT THE GOVERNMENT DEFRAY ALL EXPENSES INCIDENT TO ITS OPERATION AND MAINTENANCE.

THE SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1943, 56 STAT. 990, 999, AS AMENDED BY THE ACT OF OCTOBER 26, 1949, 63 STAT. 930, 40 U.S.C. 317, PROHIBITS, UNLESS OTHERWISE SPECIFICALLY PROVIDED, THE USE OF APPROPRIATIONS OTHER THAN THOSE MADE TO THE PUBLIC BUILDINGS ADMINISTRATION (NOW THE PUBLIC BUILDINGS SERVICE) FOR THE PURCHASE OR INSTALLATION OF THE COOLING EQUIPMENT LISTED THEREIN IN GOVERNMENT OWNED OR LEASED BUILDINGS IN THE DISTRICT OF COLUMBIA AND AREA ADJACENT THERETO. THE STATUTE MAKES THE PUBLIC BUILDINGS SERVICE OPERATING APPROPRIATIONS AVAILABLE FOR THE PURCHASE OR INSTALLATION OF AIR CONDITIONING EQUIPMENT IN GOVERNMENT-OWNED OR LEASED BUILDINGS. IT HAS BEEN HELD THAT THE AUTHORITY TO PURCHASE INCLUDES THE LESSER POWER TO LEASE.

IN VIEW OF SUCH SPECIFIC STATUTORY AUTHORITY AND HAVING REGARD FOR THE DUTY IMPOSED UPON THE ADMINISTRATOR OF GENERAL SERVICES OF OPERATING AND MAINTAINING GOVERNMENT-OWNED OR LEASED OFFICE BUILDINGS AND THE ASSIGNMENT AND REASSIGNMENT OF SPACE THEREIN, YOU ARE ADVISED THAT IF YOU DEEM IT IN THE INTEREST OF THE GOVERNMENT WE WOULD NOT BE REQUIRED TO OBJECT TO THE LATTER PLAN FOR RENTING EMPLOYEE-OWNED AIR CONDITIONING UNITS AS OUTLINED ABOVE. HOWEVER, IT IS SUGGESTED THAT CONSIDERATION BE GIVEN TO THE INCLUSION OF PROVISIONS IN SUCH LEASE AGREEMENTS TO OBVIATE PROBLEMS WHICH MIGHT ARISE BY REASON OF JOINT OWNERSHIP BY THE EMPLOYEES OF THE AIR CONDITIONING UNITS.

AS YOU WILL OBSERVE, THE FOREGOING IS CONFINED ONLY TO THE QUESTIONS PRESENTED IN YOUR LETTER AND IS NOT INTENDED TO INDICATE OUR VIEWS AS TO THE DESIRABILITY OF THE METHOD PROPOSED TO BE EMPLOYED FOR INSTALLING AIR CONDITIONING IN CERTAIN BUILDINGS.