B-130934, JUN. 26, 1957

B-130934, JUN. 26, 1957

TO HONORABLE FRANKLIN G. FLOETE, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 1, 1957, REQUESTING A DECISION AS TO WHETHER THE PURCHASE CONTRACT DOCUMENTS, PUBLIC BUILDINGS PURCHASE CONTRACT PROGRAM, DATED NOVEMBER 1956, PROMULGATED BY YOUR ADMINISTRATION TO CARRY OUT THE PURPOSES OF THE PUBLIC BUILDINGS PURCHASE CONTRACT ACT OF 1954, AS AMENDED, 40 U.S.C. 356, ARE LEGALLY WITHIN THE FRAMEWORK OF THE ENABLING LEGISLATION.

BRIEFLY, THE PURCHASE CONTRACT DOCUMENTS CONSIST OF A THREE-PARTY CONTRACT TO BE EXECUTED BY THE GOVERNMENT, THE BUILDER AND THE INVESTOR,WHOSE OBLIGATIONS ARE DESCRIBED IN THE DOCUMENTS, AS FOLLOWS:

"/A) THE BUILDER

(I) CONSTRUCTS THE IMPROVEMENTS ON THE GOVERNMENT-OWNED SITE (LEASED TO HIM FOR THE PURPOSE), IN ACCORDANCE WITH THE GOVERNMENT'S PLANS AND SPECIFICATIONS.

(II) UPON COMPLETION OF THE IMPROVEMENTS, AT A "FINANCIAL CLOSING" , ACCEPTS PAYMENT OF THE PURCHASE PRICE FROM THE INVESTOR AND CONVEYS THE IMPROVEMENTS TO A TRUSTEE UNDER A TRUST ESTABLISHED BY THE BUILDER FOR THE PURPOSE OF HOLDING TITLE TO THE IMPROVEMENTS DURING THE PURCHASE TERM.

"/B) THE INVESTOR

(I) UPON COMPLETION OF THE IMPROVEMENTS, PAYS THE PURCHASE PRICE TO THE BUILDER FOR AND ON BEHALF OF THE GOVERNMENT, AT THE FINANCIAL CLOSING, AND RECEIVES FROM THE GOVERNMENT CERTIFICATES OF CONTRACT OBLIGATION.

(II) UPON COMPLETION OF THE IMPROVEMENTS, AT A "FINANCIAL CLOSING," QUARTERLY PAYMENTS TO AMORTIZE THE PURCHASE PRICE WITH INTEREST THEREON.

"/C) THE GOVERNMENT

(I) SUPERVISES CONSTRUCTION.

(II) CERTIFIES PROGRESS OF THE CONSTRUCTION IN TERMS OF THE PURCHASE PRICE.

(III) PAYS REAL ESTATE TAXES DIRECTLY TO THE TAXING AUTHORITIES DURING THE CONSTRUCTION PERIOD.

(IV)UPON COMPLETION OF THE IMPROVEMENTS AUTHORIZES THE INVESTOR TO PAY THE PURCHASE PRICE TO THE BUILDER.

(V) OCCUPIES THE IMPROVEMENTS AND ASSUMES FULL RESPONSIBILITY FOR MAINTENANCE, OPERATION, MANAGEMENT AND ALL HAZARD RISKS.

(VI) REPAYS THE INVESTOR, WITH INTEREST, IN EQUAL QUARTERLY PAYMENTS OVER THE PURCHASE TERM.

(VII) PAYS REAL ESTATE TAXES DIRECTLY TO THE TAXING AUTHORITIES DURING THE PURCHASE TERM.

(VIII) AT THE END OF THE PURCHASE TERM ACCEPTS CONVEYANCE OF THE IMPROVEMENTS FROM THE TRUSTEES.'

AS INDICATED IN YOUR LETTER, SECTION 411 (C) OF THE PUBLIC BUILDINGS ACT OF 1949, AS AMENDED BY THE ABOVE PUBLIC BUILDINGS PURCHASE CONTRACT ACT OF 1954, AUTHORIZES THE ADMINISTRATOR OF GENERAL SERVICES TO ENTER INTO AGREEMENTS WITH ANY PERSON, ETC., TO EFFECTUATE ANY OF THE PURPOSES OF THE ACT, AS AMENDED. YOU STATE THAT,"WHILE THE CONGRESS EVIDENTLY CONTEMPLATED SINGLE CONTRACTS FOR THE ACQUISITION OF THE SITE, PREPARATION OF PLANS AND SPECIFICATIONS AND THE FINANCING AND CONSTRUCTION OF THE PROJECT BUILDING AND THEREAFTER THE PURCHASE THEREOF BY THE GOVERNMENT, FOR ADMINISTRATIVE CONVENIENCES, IT WAS DETERMINED ADMINISTRATIVE CONVENIENCES, IT WAS DETERMINED TO ACQUIRE THE SITE AND OBTAIN THE DETAILED PLANS AND SPECIFICATIONS UNDER SEPARATE CONTRACTS.' JUSTIFICATION FOR SUCH PROCEDURE YOU STATE THAT IT HAS BEEN TACITLY APPROVED BY THE CONGRESS AS EVIDENCED BY THE ENACTMENT OF AN APPROPRIATION FOR "SITES AND PLANNING, PURCHASE CONTRACT, AND PUBLIC BUILDINGS PROJECTS," AS CONTAINED IN TITLE I OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1957, APPROVED JUNE 27, 1956, 70 STAT. 343, AS FOLLOWS:

"FOR AN ADDITIONAL AMOUNT FOR EXPENSES NECESSARY IN CARRYING OUT THE PROVISIONS OF THE PUBLIC BUILDINGS PURCHASE CONTRACT ACT OF 1954 (68 STAT. 518), INCLUDING PREPARATION OF DRAWINGS AND SPECIFICATIONS, BY CONTRACT OR OTHERWISE; ACQUISITION OF THE SITES, WHERE NOT OTHERWISE PROVIDED FOR, INCLUDING SOIL INVESTIGATIONS AND TESTS; AND ADMINISTRATIVE EXPENSES; $5,000,000, TO REMAIN AVAILABLE UNTIL EXPENDED.'

ASIDE FROM THE FACT THAT THE CONGRESS HAS APPROPRIATED THE ABOVE SUM FOR THE ACQUISITION OF SITES AND FOR THE PREPARATION OF DRAWINGS AND SPECIFICATIONS IT HAS BEEN NOTED IN OUR AUDIT OF THE TRANSACTIONS THAT CERTAIN PROSPECTUSES SUBMITTED TO THE HOUSE AND SENATE COMMITTEES ON PUBLIC WORKS PURSUANT TO THE REQUIREMENTS OF SECTION 411 (E) OF THE ACT HAVE EXPRESSLY STATED THAT NEW SITES ARE TO BE ACQUIRED. IN SUCH INSTANCES, THE DATA ACCOMPANYING THE PROSPECTUSES SUBMITTED TO THE RESPECTIVE COMMITTEES FOR APPROVAL DISCLOSED THAT THE SITE ACQUISITION AND DESIGN COSTS WERE INTENDED TO BE EXCLUDED FROM THE PROPOSED PURCHASE CONTRACTS. OUR EXAMINATION FURTHER DISCLOSED THAT IN EACH OF THE ABOVE INSTANCES THE COMMITTEES HAVE APPROVED THE PROSPECTUSES SUBMITTED WITHOUT OBJECTION.

FROM THE STANDPOINT OF ECONOMY OF OPERATION, IT IS TO BE NOTED THAT IN SENATE REPORT NO. 1084, 83D CONGRESS ON H.R. 6342, WHICH BECAME PUBLIC LAW 519, THE COMMITTEE CONCLUDED THAT THE ACQUISITION OF SPACE BY DIRECT CONSTRUCTION WITH APPROPRIATED FUNDS RESULTS IN THE LOWEST OVER-ALL COST TO THE GOVERNMENT AS COMPARED TO THE LEASE-PURCHASE METHOD AND THE STRAIGHT LEASING METHOD. THE REPORT STATES THAT SINCE THE LEAST COSTLY METHOD HAS NOT BEEN FUNCTIONING FOR ALMOST 15 YEARS DUE TO WAR AND ECONOMIC CONDITIONS, THE COMMITTEE FAVORED THE ADOPTION OF THE LEASE- PURCHASE METHOD AS A SUPPLEMENTARY MEANS OF MEETING THE MORE URGENT PERMANENT SPACE REQUIREMENTS, TO BE USED WHEN THE DIRECT CONSTRUCTION METHOD WAS NOT POSSIBLE OF ATTAINMENT DUE TO BUDGETARY CONDITIONS.

THE LEGISLATIVE HISTORY OF THE ACT AND THE 1954 AMENDMENTS INDICATES THAT THE SO-CALLED ,LEASE-PURCHASE" PROGRAM WAS ORIGINALLY ENVISIONED AS A MEANS OF ACQUIRING BUILDINGS BY INCORPORATING IN LONG-TERM LEASES PROVISIONS WHEREBY THE RENTALS PAID BY THE GOVERNMENT SHOULD BE CREDITED AGAINST AN AGREED PURCHASE PRICE, SO THAT AT THE END OF THE LEASE TERM TITLE TO THE LEASED PROPERTY SHOULD PASS TO THE GOVERNMENT, WITHOUT THE NECESSITY OF ANY APPROPRIATION OF FUNDS OTHER THAN CUSTOMARY APPROPRIATIONS FOR PAYMENT OF RENTAL FOR GOVERNMENT-OCCUPIED BUILDINGS. AS DEVELOPED DURING THE LEGISLATIVE PROCEEDINGS THE NATURE OF THE PROGRAM WAS ENLARGED TO ENCOMPASS THE PRIVATE CONSTRUCTION UNDER GOVERNMENT CONTRACTS OF BUILDINGS FOR GOVERNMENT USE, WITH PAYMENT TO BE MADE IN INSTALLMENTS OVER A PERIOD OF YEARS, TITLE TO REMAIN IN THE PRIVATE CONTRACTOR UNTIL COMPLETION OF THE PAYMENTS.

THE METHOD OF OPERATION CONTEMPLATED BY THE DOCUMENTS NOW SUBMITTED INVOLVES A FURTHER STEP NOT SPECIFICALLY MENTIONED IN THE ACT--- THAT IS, THE INTRODUCTION INTO THE PROGRAM OF A THIRD PARTY, CALLED THE "INVESTOR," WHO UNDERTAKES TO PAY THE "BUILDER" IN FULL UPON COMPLETION OF THE WORK IN ACCORDANCE WITH THE LATTER'S CONTRACT WITH THE GOVERNMENT, AND WHO IN RETURN RECEIVES FROM THE GOVERNMENT "CERTIFICATES OF CONTRACT OBLIGATION" WHEREBY THE GOVERNMENT UNDERTAKES TO REPAY THE AMOUNT SO PAID, WITH INTEREST, IN INSTALLMENTS OVER A PERIOD OF NOT MORE THAN 25 YEARS. TITLE TO THE LAND (WHICH WOULD HAVE BEEN ACQUIRED BY THE GOVERNMENT PRIOR TO ENTERING INTO THE CONSTRUCTION PROJECT) WOULD REMAIN IN THE GOVERNMENT, BUT TITLE TO THE BUILDING, WITH A FIFTY-FIVE YEAR LEASEHOLD GRANTED TO THE BUILDER BY THE GOVERNMENT, WOULD BE CONVEYED TO A TRUSTEE TO BE HELD DURING THE PAYMENT PERIOD AND TO BE CONVEYED TO THE GOVERNMENT UPON COMPLETION OF THE AGREED PAYMENTS.

FOR ALL PRACTICAL PURPOSES THE TRANSACTION BETWEEN THE GOVERNMENT AND THE INVESTOR IS ESSENTIALLY ONE OF BORROWING AND LENDING, AND THE EFFECT ON THE GOVERNMENT APPEARS TO BE IN NO MATERIAL WAY DIFFERENT FROM THAT OF ORDINARY BORROWING BY THE TREASURY AND DIRECT APPROPRIATION FOR CONSTRUCTION--- EXCEPT WITH RESPECT TO THE PROBABLE INTEREST RATE TO BE PAID. ON THE OTHER HAND, IT CANNOT BE SAID THAT THE OVERALL TRANSACTION IS SUBSTANTIALLY DIFFERENT IN RESULT FROM THE ISSUANCE OF THE PROPOSED "CERTIFICATES OF CONTRACT OBLIGATIONS" AS DIRECT PAYMENT TO THE BUILDER FOR CONSTRUCTION OR TO A THIRD PARTY AS THE PURCHASE PRICE OF A BUILDING ERECTED AT HIS COST FOR GOVERNMENT USE, EITHER OF WHICH PROCEDURES WOULD APPEAR TO BE CLEARLY AUTHORIZED BY THE ACT. WE THEREFORE CONCLUDE THAT WE WOULD NOT BE JUSTIFIED IN HOLDING THAT THE PROPOSED METHOD OF OPERATION IS NOT LEGALLY WITHIN THE FRAMEWORK OF THE ENABLING LEGISLATION.

WE ARE NOT UNMINDFUL OF THE FACT THAT IT HAS BEEN CONTENDED THAT THE ABOVE PROCEDURES PROMULGATED BY THE ADMINISTRATION FOR THE PURPOSE OF CARRYING OUT THE PROVISIONS OF THE ACT ARE NOT AUTHORIZED BY THE STATUTE, AND THAT THERE NOW IS PENDING BEFORE THE HOUSE COMMITTEE ON PUBLIC WORKS A BILL (H.R. 6993) UNDER WHICH THE AUTHORITY GRANTED THE ADMINISTRATOR WOULD EXPRESSLY INCLUDE ANY CONTRACT OR SERIES OR GROUP OF CONTRACTS, INCLUDING, BUT NOT LIMITED TO, CONTRACTS COVERING ACQUISITION OF SITES, PREPARATION OF PLANS AND SPECIFICATIONS, FINANCIAL ARRANGEMENTS, AND CONSTRUCTION WHICH THE ADMINISTRATOR DEEMS NECESSARY TO EFFECTUATE THE PURPOSES OF THE ACT. CONSIDERING, HOWEVER, ALL THE FOREGOING FACTORS, PARTICULARLY THE FACT THAT THE CONGRESS, BY APPROPRIATING DIRECTLY FOR THE PREPARATION OF DRAWINGS AND SPECIFICATIONS TOGETHER WITH THE ACQUISITION OF SITES, HAS, IN EFFECT SANCTIONED THE EXCLUSION OF SUCH COSTS FROM THE PURCHASE CONTRACTS, WE SEE NO LEGAL OBJECTION TO THE PURCHASE CONTRACT DOCUMENTS GENERALLY, PENDING THE ENACTMENT OF FURTHER LEGISLATION EXPRESSING THE INTENTION OF THE CONGRESS IN THE MATTER.

AS TO THE SPECIFIC PROVISIONS OF THE PURCHASE CONTRACT DOCUMENTS, GSA FORM 1337, PAGE 2, PARAGRAPH 7 (B) (II) AND 7 (C) (VI), AND GSA FORM 1341, TITLE III, ARTICLES 3, 4, AND 7 PROVIDE FOR EQUAL QUARTERLY PAYMENTS BY THE GOVERNMENT TO THE INVESTOR FOR THE AMORTIZATION OF THE PURCHASE PRICE OF THE IMPROVEMENTS WITH INTEREST. SECTION 411 (A) OF THE ACT PROVIDES THAT ,EVERY PURCHASE CONTRACT ENTERED INTO PURSUANT TO THIS TITLE SHALL PROVIDE FOR EQUAL ANNUAL PAYMENTS FOR THE AMORTIZATION OF PRINCIPAL WITH INTEREST THEREON.' THE WORD "ANNUAL" HAS BEEN DEFINED AS MEANING ACCRUING ONCE A YEAR OR YEARLY. HORNE V. KENOSHA LINCOLN-MERCURY, INC., 61 N.W. 2D 893, 895; PEOPLE V. STANDARD, 133 N.E. 2D 757, 762. SEE, ALSO, CITY AND COUNTY OF DENVER V. HALLETT, 83 P. 1064, 1067. WHILE IT IS TRUE THAT THE ADMINISTRATOR IS VESTED WITH BROAD AUTHORITY UNDER THE ACT THE LANGUAGE OF THE STATUE IS PLAIN, EXPRESSLY STIPULATING THAT EVERY CONTRACT SHALL PROVIDE FOR EQUAL ANNUAL PAYMENTS. THEREFORE, IT WOULD APPEAR THAT THE ABOVE QUARTERLY PAYMENTS ARE NOT EXPRESSLY AUTHORIZED. HOWEVER, AS THE ADMINISTRATION HAS CONSTRUED THE "EQUAL ANNUAL PAYMENTS" PROVISION OF THE STATUTE AS PERMITTING WEEKLY, MONTHLY, OR ANNUAL INSTALLMENTS, SO LONG AS THE AGGREGATE ANNUAL AMOUNTS ARE EQUAL OVER THE ENTIRE CONTRACT TERM, AND SINCE THE ABOVE BILL (H.R. 6993) WOULD AUTHORIZE PAYMENTS AT SUCH INTERVALS AS THE ADMINISTRATOR DEEMS NECESSARY WITHOUT REGARD FOR THE FOREGOING REQUIREMENT OF EQUAL ANNUAL PAYMENTS, WE WILL NOT OBJECT TO THE QUARTERLY PAYMENTS PENDING THE ENACTMENT OF FURTHER LEGISLATION IN THE MATTER.

ARTICLE 1, TITLE IV OF GSA FORM 1341, PROVIDES FOR PAYMENT OF REAL ESTATE TAXES DIRECTLY TO THE TAXING AUTHORITIES BY THE GOVERNMENT ON BEHALF OF THE OWNER DURING THE PERIOD OF THE PURCHASE CONTRACT. THIS PROVISION IS MADE PURSUANT TO SECTION 411 (H) OF THE ACT PROVIDING THAT ANY INTEREST IN REAL PROPERTY ACQUIRED UNDER THIS SECTION SHALL BE SUBJECT TO STATE AND LOCAL TAXES UNTIL TITLE PASSES TO THE UNITED STATES. ARTICLE 1 (H), TITLE 1 OF GSA FORM 1341 DEFINES REAL ESTATE TAXES AS INCLUDING TAXES OF ANY KIND AND NATURE WHATSOEVER APPLICABLE TO THE IMPROVEMENTS AND THE BUILDER'S LEASEHOLD INTEREST IN THE SITE, WHICH SITE, UNDER THE TERMS OF ARTICLE 5 (A), TITLE II OF GSA FORM 1341 WILL BE LEASED TO THE BUILDER. UNDER THE PROCEDURE PROPOSED BY THE CONTRACT DOCUMENTS IT APPEARS THAT THE IMPROVEMENTS ARE TO BE CONSTRUCTED ON GOVERNMENT-OWNED LANDS LEASED TO THE BUILDER FOR THAT PURPOSE. DURING CONSIDERATION OF H.R. 6342, WHICH BECAME PUBLIC LAW 519, IT APPEARS THAT GENERALLY IT WAS CONTEMPLATED THAT TITLE TO THE PROPERTY WOULD BE VESTED IN THE CONTRACTOR DURING THE CONTRACT PERIOD AND THUS THE PROPERTY WOULD BE SUBJECT, UNDER LOCAL LAWS, TO THE SAME AD VALOREM TAXES AS ARE EXACTED BY THE LOCAL TAXING AUTHORITIES. SEE IN THIS CONNECTION STATEMENT BY SENATOR KUCHEL APPEARING AT PAGE 5318 OF THE CONGRESSIONAL RECORD OF APRIL 20, 1954, AND THE STATEMENT ON PAGE 4 OF SENATE REPORT NO. 1084, 83D CONGRESS, ACCOMPANYING H.R. 6342. IN THE CIRCUMSTANCES, AND HAVING REGARD FOR THE FACT THAT THE CONTRACT DOCUMENTS CONTEMPLATE CONSTRUCTION OF THE IMPROVEMENTS ON GOVERNMENT-OWNED LAND, BUT WITH A FIFTY-FIVE YEAR LEASEHOLD VESTED IN A TRUSTEE PENDING FULL REPAYMENT OF THE INVESTOR, WE SEE NO OBJECTION TO THE ABOVE CONTRACT PROVISION IN SITUATIONS WHERE THE STATE LAW PROVIDES THAT THE TAXES SHALL BE ASSESSED TO THE LESSEES OR USERS OF THE PROPERTY AS DISTINGUISHED FROM TAXES IMPOSED ON THE LAND. 84 C.J.S. SEC. 95; 23 A.L.R. 248. SEE ALSO, UNITED STATES V. CITY OF DETROIT, 77 N.W. 2D 79, APPEAL PENDING 352 U.S. 962. SECTION 3 (G), GSA FORM 1342 PROVIDES FOR ALLOWABLE OVERHEAD, PROFIT, AND COMMISSION PERCENTAGES, WITH RESPECT TO CHANGES, AND STIPULATES CERTAIN ITEMS WHICH WILL BE CONSIDERED TO BE INCLUDED THEREIN. IT IS UNDERSTOOD FROM DISCUSSIONS WITH YOUR REPRESENTATIVES THAT IT IS INTENDED THAT FINANCING COSTS IN CONNECTION WITH CHANGES WILL BE ALLOWED AS A SEPARATE ITEM OF COST UNDER SECTION 3 (E), BUT THAT IT IS NOT INTENDED TO ALLOW OVERHEAD, PROFIT OR COMMISSION ON SUCH FINANCING CHARGES. SINCE SUCH INTENTION IS NOT CLEARLY SET FORTH IN THE ABOVE SECTION THERE IS SUGGESTED FOR YOUR CONSIDERATION THE ADVISABILITY OF CLARIFYING THE LANGUAGE ACCORDINGLY. SECTION 3 (H) FIXES A MAXIMUM PERCENTAGES FOR OVERHEAD, PROFIT, AND COMMISSIONS THAT MAY BE ALLOWED UNDER THE CONTRACT, BUT IT FAILS TO DEFINE CLEARLY THE BASES TO WHICH THE PERCENTAGES APPLY. IN ORDER TO ESTABLISH THE MAXIMUM ALLOWABLE AMOUNTS UNDER THE CONTRACT IT WOULD BE NECESSARY TO KNOW WHICH ITEMS OF COST ENUMERATED IN SECTION 3 (E) ARE INCLUDED IN THE BASE TO WHICH THE MAXIMUM PERCENTAGES WOULD BE APPLIED. HERE ALSO IT IS SUGGESTED THAT CONSIDERATION BE GIVEN TO THE ADVISABILITY OF REVISING THE LANGUAGE OF THIS SECTION TO REMOVE ANY AMBIGUITY IN THIS RESPECT.

FINALLY, IN THE FIRST LINE OF ARTICLE 5, TITLE II OF GSA FORM 1341 IT IS BELIEVED THE WORD ,BUILDER" SHOULD BE SUBSTITUTED FOR THE WORD "BIDDER" AND THAT IN ARTICLE 11 TITLE III OF THE SAME FORM THE LANGUAGE (ON PAGE 10) "REPAIRS TO EVERY CHARACTER" SHOULD BE CHANGED TO READ "REPAIRS OF EVERY CHARACTER.'

OTHER THAN THE FOREGOING, WE HAVE NO FURTHER COMMENTS TO MAKE AT THIS TIME REGARDING THE PURCHASE CONTRACT DOCUMENTS. IT MUST BE UNDERSTOOD, HOWEVER, THAT THE FACT THAT THIS PROCEDURE WAS SUBMITTED HERE FOR REVIEW MAY NOT BE VIEWED AS PRECLUDING OUR OFFICE FROM TAKING SUCH ACTION WITH REGARD TO SPECIFIC MATTERS WHICH MAY ARISE IN CONNECTION WITH TRANSACTIONS ENCOMPASSED BY SUCH DOCUMENTS AS MAY BE NECESSARY TO THE PROPER PERFORMANCE OF OUR DUTIES UNDER THE LAW.