B-132813, SEP. 5, 1957

B-132813: Sep 5, 1957

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

REQUESTS OUR DECISION WHETHER THE POST OFFICE DEPARTMENT IS REQUIRED TO REIMBURSE GENERAL SERVICES ADMINISTRATION UNDER SECTION 202/A) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949. IN THE EVENT IT IS DETERMINED THAT REIMBURSEMENT IS REQUIRED. A FURTHER DECISION IS REQUESTED AS TO WHETHER. (2) DISPOSE OF THE SITES UNDER SECTION 203/A) OF PUBLIC LAW 519 AT COST OR AT THE APPRAISED VALUATION (WHICHEVER IS THE LOWER) TO SUCCESSFUL LEASE BIDDERS UNDER THAT SECTION. THE VIEW IS EXPRESSED THAT THE POST OFFICE DEPARTMENT SHOULD BE ABLE. IT IS ALSO STATED THAT IT IS NOT INTENDED TO USE FOR THIS PURPOSE SITES WHICH ARE DESCRIBED IN THE PROVISO IN PARAGRAPH (B) OF SECTION 203/A) (2) OF PUBLIC LAW 519.

B-132813, SEP. 5, 1957

TO THE POSTMASTER GENERAL:

YOUR LETTER OF AUGUST 5, 1957, REQUESTS OUR DECISION WHETHER THE POST OFFICE DEPARTMENT IS REQUIRED TO REIMBURSE GENERAL SERVICES ADMINISTRATION UNDER SECTION 202/A) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, PUBLIC LAW 152, APPROVED JUNE 30, 1949, 63 STAT. 384, AS AMENDED, 40 U.S.C. 483/A), FOR FEDERALLY OWNED SITES TO BE TRANSFERRED TO THE POST OFFICE DEPARTMENT AND DISPOSED OF UNDER SECTION 203 (A) OF THE THE POST OFFICE DEPARTMENT PROPERTY ACT OF 1954, PUBLIC LAW 519, APPROVED JULY 22, 1954, 68 STAT. 523, 39 U.S.C. 903/A). IN THE EVENT IT IS DETERMINED THAT REIMBURSEMENT IS REQUIRED, A FURTHER DECISION IS REQUESTED AS TO WHETHER, UPON DISPOSAL OF THE FEDERALLY OWNED SITE BY THE POST OFFICE DEPARTMENT, THE AMOUNT RECEIVED THEREFOR MAY BE CREDITED TO THE CURRENT APPLICABLE APPROPRIATION OF THE POST OFFICE DEPARTMENT WITHIN THE LIMITATIONS SET OUT IN SECTION 205/A) OF PUBLIC LAW 519.

YOUR LETTER STATES THAT THE POST OFFICE DEPARTMENT HAS FOR SOME TIME SEEN THE NEED FOR AND WISDOM OF USING IN ITS LONG-TERM COMMERCIAL LEASING PROGRAM SOME OF THE PUBLIC BUILDING SITES ACQUIRED FOR POST OFFICE SITES BY THE UNITED STATES THROUGH THE YEARS. IT HAD BEEN THE PLAN TO (1) ACQUIRE THESE SITES FROM GENERAL SERVICES ADMINISTRATION WITHOUT REIMBURSEMENT, (2) DISPOSE OF THE SITES UNDER SECTION 203/A) OF PUBLIC LAW 519 AT COST OR AT THE APPRAISED VALUATION (WHICHEVER IS THE LOWER) TO SUCCESSFUL LEASE BIDDERS UNDER THAT SECTION, AND (3) DEPOSIT THE PROCEEDS IN THE GENERAL FUNDS OF THE TREASURY PURSUANT TO SECTION 205 OF PUBLIC LAW 519. THE VIEW IS EXPRESSED THAT THE POST OFFICE DEPARTMENT SHOULD BE ABLE, BY AGREEMENT WITH GENERAL SERVICES ADMINISTRATION, TO USE FEDERALLY OWNED SITES ACQUIRED OR USED FOR POSTAL PURPOSES TO FURTHER THE DEPARTMENT'S LONG-TERM LEASING PROGRAM UNDER SECTION 203 WITHOUT HAVING TO INCUR ANY CAPITAL EXPENSE IN THE NATURE OF LAND ACQUISITION COSTS. IT IS ALSO STATED THAT IT IS NOT INTENDED TO USE FOR THIS PURPOSE SITES WHICH ARE DESCRIBED IN THE PROVISO IN PARAGRAPH (B) OF SECTION 203/A) (2) OF PUBLIC LAW 519.

SECTION 203 OF PUBLIC LAW 519, PROVIDES:

"SEC. 203. (A) THE POSTMASTER GENERAL IS AUTHORIZED TO---

"/1) NEGOTIATE AND ENTER INTO LEASE AGREEMENTS WITH ANY PERSON, COPARTNERSHIP, CORPORATION, OR OTHER PUBLIC OR PRIVATE ENTITY, WHICH DO NOT BIND THE GOVERNMENT FOR PERIODS EXCEEDING THIRTY YEARS FOR EACH SUCH AGREEMENT, ON SUCH TERMS AS THE POSTMASTER GENERAL DEEMS TO BE IN THE BEST INTERESTS OF THE UNITED STATES, FOR THE ERECTION BY SUCH LESSOR OF SUCH BUILDINGS AND IMPROVEMENTS FOR POSTAL PURPOSES AS THE POSTMASTER GENERAL DEEMS APPROPRIATE, ON LANDS SOLD, LEASED, OR OTHERWISE DISPOSED OF BY THE POSTMASTER GENERAL TO, OR OTHERWISE ACQUIRED BY, SUCH PERSON, COPARTNERSHIP, CORPORATION, OR PUBLIC OR PRIVATE ENTITY;

"/2) FOR THE PURPOSES OF PARAGRAPH (1) OF THIS SECTION, AND WITHOUT REGARD TO THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 (ACT OF JUNE 30, 1949, CH. 288, EIGHTY-FIRST CONGRESS, FIRST SESSION), AS AMENDED--

"/A) ACQUIRE BY PURCHASE, CONDEMNATION, LEASE, DONATION, OR OTHERWISE, AND ON SUCH TERMS AS HE SHALL DEEM APPROPRIATE TO THE BEST INTERESTS OF THE UNITED STATES, REAL PROPERTY AND INTERESTS THEREIN, FOR USE FOR POSTAL PURPOSES; AND

"/B) DISPOSE OF REAL PROPERTY, AND INTERESTS THEREIN, ACQUIRED FOR USE OR USED FOR POSTAL PURPOSES BY SALE, LEASE, OR OTHERWISE, ON SUCH TERMS AS HE SHALL DEEM APPROPRIATE TO THE BEST INTEREST OF THE UNITED STATES: PROVIDED, THAT THE POSTMASTER GENERAL SHALL NOT, FOR THE PURPOSES OF THIS SECTION, DISPOSE OF (1) ANY GOVERNMENT-OWNED PROPERTY, OR INTERESTS THEREIN, ACQUIRED PURSUANT TO SECTION 101 OF THE PUBLIC BUILDINGS ACT OF 1949 (63 STAT. 176) OR (2) ANY GOVERNMENT OWNED PROPERTY, OR INTERESTS THEREIN, WHICH HAS BEEN ACQUIRED PURSUANT TO LAW, PRIOR TO THE ENACTMENT OF THIS ACT, ON WHICH THERE HAS BEEN CONSTRUCTED A BUILDING TO BE USED FOR POSTAL PURPOSES AND WHICH IS PRESENTLY BEING USED FOR SUCH PURPOSES.

"/B) FUNDS AVAILABLE TO THE POST OFFICE DEPARTMENT FOR THE PAYMENT OF RENTS ARE AUTHORIZED TO BE UTILIZED BY THE POSTMASTER GENERAL FOR THE PURPOSES OF THIS SECTION.'

THE POSITION OF THE GENERAL SERVICES ADMINISTRATION, AS SHOWN IN CORRESPONDENCE TRANSMITTED WITH YOUR SUBMISSION, IS THAT THE AUTHORITY CONTAINED IN ABOVE-QUOTED SECTION 203 (A) (2) (A) TO ACQUIRE "BY PURCHASE, CONDEMNATION, LEASE, DONATION OR OTHERWISE," APPLIES TO ACQUISITIONS FROM PRIVATE RATHER THAN GOVERNMENTAL SOURCES. THEY ALSO POINT OUT THAT THE ONLY AUTHORITY GSA HAS TO TRANSFER PROPERTY TO THE POST OFFICE DEPARTMENT OR ANY OTHER FEDERAL AGENCIES WOULD BE THAT VESTED IN THE ADMINISTRATOR PURSUANT TO SECTION 202 (A) OF PUBLIC LAW 152. IT IS STATED IN YOUR GENERAL COUNSEL'S LETTER OF JUNE 21, 1957, TO THE GENERAL COUNSEL, GSA, THAT FOR THE PURPOSES OF SUCH LETTER IT IS TO BE ASSUMED THAT THE POST OFFICE DEPARTMENT IS NOT IN A POSITION TO CERTIFY THAT IT DOES NOT HAVE FUNDS AVAILABLE FOR REIMBURSEMENT. GSA REGULATION 2-IV-202.07, PRESCRIBED UNDER THE AUTHORITY OF SECTION 202/A) OF PUBLIC LAW 152, REQUIRES REIMBURSEMENT AT FAIR VALUE IN CASES, SUCH AS HERE, WHERE THE REQUESTING AGENCY HAS INDICATED THAT IT IS NOT IN A POSITION TO CERTIFY THAT IT DOES NOT HAVE THE FUNDS AVAILABLE FOR REIMBURSEMENT. THE PROCEEDS FROM TRANSFERS MADE PURSUANT TO SECTION 202 (A) ARE FOR COVERING INTO THE TREASURY AS MISCELLANEOUS RECEIPTS UNDER SECTION 204 OF PUBLIC LAW 152. THE SUGGESTION IS OFFERED BY THE GENERAL SERVICES ADMINISTRATION IN LETTER OF JULY 10, 1957, TO YOUR DEPARTMENT, THAT THE BROAD TERMS OF SECTION 203 (A) (2) (B) (AS WELL AS SECTION 203 (A) (1) ( OF PUBLIC LAW 519, AUTHORIZE DISPOSITION OF 1926 PUBLIC BUILDING ACT SITES WITHOUT CONSIDERATION AND, IF THE PROPERTY ACQUIRED FROM GSA WERE THUS DISPOSED OF, THERE WOULD BE NO RESULTING DEPOSIT OF MONEYS INTO THE TREASURY AS MISCELLANEOUS RECEIPTS. WHILE YOUR DEPARTMENT AGREES WITH THAT CONCLUSION, IT IS POINTED OUT THAT THERE STILL WOULD BE A NON RECOVERABLE OUTLAY REPRESENTING THE FAIR VALUE OF THE SITE PAID TO GENERAL SERVICES ADMINISTRATION.

YOUR LETTER STATES:

"IT IS BELIEVED THAT IT WAS NOT THE INTENT OF CONGRESS TO HAVE THIS DEPARTMENT MAKE ANY CAPITAL OUTLAYS BY WAY OF REIMBURSEMENT TO GENERAL SERVICES ADMINISTRATION FOR TRANSFERS OF REAL PROPERTY TO EFFECTUATE SECTION 203 OF THE POST OFFICE DEPARTMENT PROPERTY ACT OF 1954, (PUBLIC LAW 519, 39 U.S.C. 903 AND FOLLOWING) AS EVIDENCED BY THE BROAD ACQUISITION AUTHORITY GRANTED TO THE POSTMASTER GENERAL BY SUCH ACT. THUS, SECTION 203 (A) (2) AUTHORIZED THE POSTMASTER GENERAL TO BOTH ACQUIRE AND DISPOSE OF REAL PROPERTY WITHOUT REGARD TO THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, PUBLIC LAW 152 (THIS NECESSARILY EXCLUDES THE TERMS OF SAID ACT AS TO REIMBURSEMENT) AND "ON SUCH TERMS AS HE SHALL DEEM APPROPRIATE TO THE BEST INTEREST OF THE UNITED STATES.' BOTH GENERAL SERVICES ADMINISTRATION AND THE POST OFFICE DEPARTMENT AGREE THAT PURSUANT TO SECTION 203/A) (2) THIS DEPARTMENT MAY DISPOSE OF 1926 PUBLIC BUILDINGS ACT PROPERTY WHICH IS TRANSFERRED TO US, AND TO DO SO WITHOUT REGARD TO PUBLIC LAW 152 (40 U.S.C. 471). ACCORDINGLY, IT APPEARS ELEMENTARY THAT WE CAN ALSO ACQUIRE SUCH PROPERTY PURSUANT TO THE EXPRESS AUTHORIZATION CONTAINED IN SAID SECTION 203 (A) (2) AND DO SO WITHOUT REGARD TO PUBLIC LAW 152. MOREOVER, SECTION 205/B) PROVIDES A TREATMENT OF THE PROCEEDS OF DISPOSITION BY THE POST OFFICE DEPARTMENT WHICH IS IN SUBSTITION FOR, AND NOT IN ADDITION TO, THE SIMILAR REQUIREMENTS OF PUBLIC LAW 152. IT CANNOT BE REASONABLE TO SUPPOSE THAT A DOUBLE DEPOSIT OF FUNDS SHOULD BE MADE. SECTION 203 (A) (2) MAKES NO DISTINCTION BETWEEN ACQUISITION BY TRANSFER FROM GENERAL SERVICES ADMINISTRATION AND ACQUISITION BY OTHER MEANS, NOR DOES THE LEGISLATIVE HISTORY OF TITLE II OF PUBLIC LAW 519 NOR THE PRACTICALITIES OF THE SITUATION REQUIRE A CONTRARY CONCLUSION.'

WE AGREE WITH THE ABOVE STATED VIEW CONCERNING CAPITAL OUTLAYS TO EFFECTUATE SECTION 203 OF PUBLIC LAW 519. ALSO, WE AGREE THAT IT IS NOT REASONABLE TO SUPPOSE THAT A DOUBLE DEPOSIT TO MISCELLANEOUS RECEIPTS SHOULD BE MADE. HOWEVER, WE CANNOT AGREE, FOR THE REASONS STATED BELOW, TO YOUR VIEW CONCERNING THE APPLICABILITY OF SAID SECTION TO SITES TRANSFERRED FROM GENERAL SERVICES ADMINISTRATION.

SECTION 203/A) (2) (A) OF PUBLIC 519 AUTHORIZES THE POSTMASTER GENERAL TO "ACQUIRE BY PURCHASE, CONDEMNATION, LEASE, DONATION, OR OTHERWISE, AND ON SUCH TERMS AS HE SHALL DEEM APPROPRIATE TO THE BEST INTERESTS OF THE UNITED STATES, REAL PROPERTY AND INTERESTS THEREIN, FOR USE FOR POSTAL PURPOSES.' THE TERMS USED THEREIN DO NOT APPEAR SUSCEPTIBLE TO AN INTERPRETATION THAT SUCH AUTHORITY EXTENDED TO SITES ALREADY IN GOVERNMENT OWNERSHIP AND UNDER THE CONTROL OF THE GENERAL SERVICES ADMINISTRATION, NOR DOES THE LEGISLATIVE HISTORY SUPPORT SUCH VIEW. SENATE REPORT NO. 1084, 83D CONGRESS, OF THE COMMITTEE ON PUBLIC WORKS IN REPORTING H.R. 6342 (WHICH BECAME PUBLIC LAW 519) EXPLAINS AT PAGE 9 THEREOF THE PURPOSE OF SECTION 203 AS FOLLOWS:

"FOR THE PURPOSES OF THIS SECTION THE POSTMASTER GENERAL IS AUTHORIZED TO ACQUIRE REAL PROPERTY FOR POSTAL PURPOSES BY PURCHASE, CONDEMNATION, LEASE, DONATION, OR OTHERWISE, AND TO DISPOSE OF SUCH PROPERTY BY SALE, LEASE, OR OTHERWISE. FUNDS AVAILABLE TO THE POST OFFICE DEPARTMENT FOR PAYMENT OF RENTS WILL BE USED TO CARRY OUT THE PURPOSE OF THIS SECTION. THIS AUTHORITY WITH RESPECT TO ACQUISITION AND DISPOSAL OF REAL PROPERTY FOR THE PURPOSE OF ENTERING INTO TERM LEASE AGREEMENTS IS INTENDED TO ENABLE THE POSTMASTER GENERAL TO ELIMINATE SPECULATION IN OPTIONS IN CONNECTION WITH THE NEGOTIATION OF SUCH TERM LEASES.

ALSO, THE FOLLOWING EXCERPT FROM PAGE 21 OF THE HEARING ON H.R. 6342 HELD JANUARY 21, 1954, BEFORE THE SUBCOMMITTEE ON BUILDINGS AND GROUNDS, COMMITTEE ON PUBLIC WORKS, UNITED STATES SENATE, IN WHICH THERE WAS BEING DISCUSSED THE PROPOSED PROVISIONS OF SECTION 203 INDICATES THAT THE PROPONENTS OF SUCH SECTION DID NOT CONTEMPLATE THE INCLUSION OF GOVERNMENT -OWNED SITES, NOR THE USE OF SUCH SITES UNDER THE TERM-LEASING PROGRAM:

"SENATOR CHAVEZ. WHAT HAPPENS IN AN INSTANCE SUCH AS YOU HAVE OUTLINED IF A BUILDING IS CONSTRUCTED ON PROPERTY THAT THE POST OFFICE DEPARTMENT NOW OWNS? DO YOU CHARGE REAL-ESTATE TAX ON THE BUILDING ITSELF?

"MR. KIEB. IN THE FIRST PLACE, THE POST OFFICE DEPARTMENT DOES NOT OWN ANY PROPERTY.

"SENATOR CHAVEZ. BUT SUPPOSE THEY DO?

MR. KIEB: IF IT WAS ON ONE OF THOSE GENERAL SERVICES ADMINISTRATION SITES THAT I MENTIONED, IT WOULD BE OUR SUGGESTION THAT WE WOULD LEASE THAT SITE WHICH IS MUNICIPALLY TAX FREE TO THE PROPONENT AT THE LOWEST POSSIBLE RETURN OF PERHAPS $1 A YEAR AND THEN WE WOULD LEASE THE BUILDING WITH A LEASE-PURCHASE TYPE OF PAYMENT. * * *"

SINCE IT IS OBVIOUS THAT LANDS ALREADY IN GOVERNMENT OWNERSHIP WOULD NOT BE SUBJECT TO SPECULATION AND INASMUCH AS IT DOES NOT APPEAR THAT THE TRANSFER OF SUCH SITES FROM GENERAL SERVICES ADMINISTRATION WAS CONTEMPLATED BY SAID SECTION, WE CONCLUDE THAT THE ACQUISITION PROVISIONS OF SECTION 203 (A) (2) (A) DO NOT EXTEND TO TRANSFER SUCH AS NOW PROPOSED. THEREFORE, THE ONLY AUTHORITY FOR TRANSFER OF FEDERALLY OWNED POST OFFICE SITES IS THAT CONTAINED IN SECTION 202/A) OF PUBLIC LAW 152. WE DO NOT BELIEVE, HOWEVER, THAT THE POST OFFICE DEPARTMENT IS PRECLUDED FROM SECURING A TRANSFER OF THE SITES WITHOUT REIMBURSEMENT UNDER SECTION 202/A) OF PUBLIC LAW 152, AND THE REGULATIONS APPLICABLE THERETO. WHILE WE NOTE FROM THE EXCHANGE OF CORRESPONDENCE BETWEEN THE POST OFFICE DEPARTMENT AND GENERAL SERVICES ADMINISTRATION, THAT YOUR DEPARTMENT HAS INDICATED IT WILL NOT BE IN A POSITION TO CERTIFY THAT IT DOES NOT HAVE APPROPRIATIONS AVAILABLE FOR REIMBURSEMENT, YOUR ATTENTION IS DIRECTED TO SECTION 203 (B) OF PUBLIC LAW 519, WHICH PROVIDES:

"FUNDS AVAILABLE TO THE POST OFFICE DEPARTMENT FOR THE PAYMENT OF RENTS ARE AUTHORIZED TO BE UTILIZED BY THE POSTMASTER GENERAL FOR THE PURPOSE OF THIS SECTION.'

THUS, WHILE THE APPROPRIATION FOR THE PAYMENT OF RENTS IS AVAILABLE FOR ACQUISITIONS OF SITES UNDER SECTION 203/A) (2) (A), IT IS NOT AVAILABLE FOR SITES TRANSFERRED FROM GENERAL SERVICES ADMINISTRATION UNDER AUTHORITY OF SECTION 202/A) OF PUBLIC LAW 152, NOR DOES IT APPEAR THAT OTHER APPROPRIATIONS OF THE POST OFFICE DEPARTMENT ARE AVAILABLE FOR SUCH PURPOSE. UNDER THESE CIRCUMSTANCES A CERTIFICATION AS REQUIRED BY GSA REGULATION 2-IV-202.07 "THAT TRANSFER OF THE PROPERTY CANNOT BE FINANCED FROM AVAILABLE FUNDS" WOULD SEEM TO BE IN ORDER, THUS QUALIFYING TRANSFER OF THE SITES WITHOUT REIMBURSEMENT.

TRANSFER OF THE SITES ON THIS BASIS, AND SUBSEQUENT DISPOSAL BY SALE TO EFFECTUATE THE PURPOSES OF SECTION 203, WOULD NOT, IN VIEW OF THE PROVISIONS OF SECTION 205 OF PUBLIC LAW 519, AUGMENT THE APPROPRIATIONS OF YOUR DEPARTMENT SINCE SECTION 205 REQUIRES THAT IF ANY PROPERTY ACQUIRED PURSUANT TO THE PUBLIC BUILDINGS ACTS OF 1926 AND 1949 SHOULD BE TRANSFERRED TO THE POSTMASTER GENERAL AND SUBSEQUENTLY SOLD OR DISPOSED OF, ANY AMOUNTS RECEIVED FROM SUCH DISPOSAL SHALL BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS. SEE SENATE REPORT NO. 1084, 83D CONGRESS, PAGE 5. CONSEQUENTLY, IF THE REQUIRED CERTIFICATION IS MADE AND PROVIDED THAT THE ADMINISTRATOR OF GENERAL SERVICES, WITH THE APPROVAL OF THE DIRECTOR OF THE BUREAU OF THE BUDGET, WHO IS AUTHORIZED UNDER SECTION 202/A) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT TO PRESCRIBE THE EXTENT OF REIMBURSEMENTS FOR SUCH TRANSFERS OF EXCESS PROPERTY, DETERMINES SUCH TRANSFER SHOULD BE MADE WITHOUT REIMBURSEMENT, SUCH TRANSFER WITHOUT REIMBURSEMENT WOULD BE AUTHORIZED.

SINCE YOUR SECOND QUESTION IS BASED UPON OUR DETERMINING IN ANSWER TO THE FIRST QUESTION THAT THE POST OFFICE DEPARTMENT MUST REIMBURSE GENERAL SERVICES ADMINISTRATION THE FAIR VALUE OF SITES WHICH ARE TRANSFERRED TO YOUR DEPARTMENT AND USED IN THE LEASING PROGRAM UNDERSECTION 203 OF PUBLIC LAW 519, CONSIDERATION THEREOF IS NOT REQUIRED.