B-160348, NOVEMBER 21, 1966, 46 COMP. GEN. 427

B-160348: Nov 21, 1966

Additional Materials:

Contact:

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

 

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

IT IS POINTED OUT IN YOUR LETTER THAT NEITHER THE PUBLIC BUILDINGS ACT OF 1959. IT IS STATED. IT IS RELATED IN YOUR LETTER THAT CONGRESS HAS FROM TIME TO TIME APPROPRIATED FUNDS FOR THE CONSTRUCTION OF PUBLIC BUILDINGS TO AGENCIES OTHER THAN GSA. IS CITED AS AN EXAMPLE WHERE A PROSPECTUS WAS SUBMITTED BY GSA AND APPROVED BY THE HOUSE PUBLIC WORKS COMMITTEE AND THE SENATE PUBLIC WORKS COMMITTEE. THE PROJECT WAS FUNDED IN FISCAL YEARS 1964 AND 1965 BY APPROPRIATIONS FROM THE FEDERAL OLD AGE AND INSURANCE TRUST FUND. IN ADDITION TO THE FOREGOING OUR ATTENTION IS DIRECTED TO SECTION 15 OF THE PUBLIC BUILDINGS ACT OF 1959. MAY BE DELEGATED TO THE APPROPRIATE EXECUTIVE AGENCY WHERE THE ADMINISTRATOR DETERMINES THAT SUCH DELEGATION WILL PROMOTE EFFICIENCY AND ECONOMY.

B-160348, NOVEMBER 21, 1966, 46 COMP. GEN. 427

PUBLIC BUILDINGS - CONSTRUCTION - AUTHORIZATION AND APPROPRIATIONS THE PUBLIC BUILDING ACT OF 1959, AS AMENDED, ALTHOUGH UNDER SECTION 7 (A), 40 U.S.C. 606, REQUIRES THE GENERAL SERVICES ADMINISTRATION (GSA) TO SUBMIT AND SECURE THE APPROVAL OF THE CONGRESSIONAL COMMITTEES ON PUBLIC WORKS OF PROPOSED PUBLIC BUILDING CONSTRUCTION, DOES NOT REQUIRE THE APPROPRIATION FOR THE CONSTRUCTION TO BE MADE TO GSA, AND THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, IN SECTION 210 (C), 49 U.S.C. 490 (C), PROVIDING FOR THE TRANSFER TO GSA OF FUNDS APPROPRIATED TO OTHER AGENCIES FOR BUILDING CONSTRUCTION, GSA MAY INITIATE AND SECURE THE AUTHORIZATION FOR AN APPROPRIATION TO CONSTRUCT POSTAL FACILITIES, THE POST OFFICE DEPARTMENT TO OBTAIN THE APPROPRIATION FOR EXPENDITURE CONSISTENT WITH THE RESPONSIBILITIES OF THE GSA ADMINISTRATOR TO CONSTRUCT PUBLIC BUILDINGS.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, NOVEMBER 21, 1966:

YOUR LETTER DATED OCTOBER 28, 1966, REQUESTS AN OPINION WHETHER, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED, OUR OFFICE WOULD OBJECT TO THE CONTINUATION OF THE PRACTICE OF THE GENERAL SERVICES ADMINISTRATION OF EXPENDING FUNDS FOR OR IN CONNECTION WITH THE ACQUISITION OR CONSTRUCTION OF A PUBLIC BUILDING AS DEFINED IN SECTION 13 OF THE PUBLIC BUILDINGS ACT OF 1959, A AMENDED, 40 U.S.C. 612, ALTHOUGH THE APPROPRIATION BE MADE TO AN AGENCY OTHER THAN THE GSA, PURSUANT TO AN AUTHORIZATION GIVEN TO GSA BY THE PUBLIC WORKS COMMITTEES OF THE SENATE AND HOUSE OF REPRESENTATIVES, RESPECTIVELY, IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 7 (A) OF THE ACT, 40 U.S.C. 606.

SECTION 7 (A) PROVIDES IN PERTINENT PART AS FOLLOWS: * * * NO APPROPRIATION SHALL BE MADE TO CONSTRUCT ANY PUBLIC BUILDING OR TO ACQUIRE ANY BUILDING TO BE USED AS A PUBLIC BUILDING INVOLVING AN EXPENDITURE IN EXCESS OF $100,000, AND NO APPROPRIATION SHALL BE MADE TO ALTER ANY PUBLIC BUILDING INVOLVING AN EXPENDITURE IN EXCESS OF $200,000, IF SUCH CONSTRUCTION, ALTERATION, OR ACQUISITION HAS NOT BEEN APPROVED BY RESOLUTIONS ADOPTED BY THE COMMITTEE ON PUBLIC WORKS OF THE SENATE AND HOUSE OF REPRESENTATIVES, RESPECTIVELY,AND SUCH APPROVAL HAS NOT BEEN RESCINDED * * *. FOR THE PURPOSE OF SECURING CONSIDERATION OF SUCH APPROVAL THE ADMINISTRATOR SHALL SUBMIT TO CONGRESS A PROSPECTUS OF THE PROPOSED PROJECT * * *.

IT IS POINTED OUT IN YOUR LETTER THAT NEITHER THE PUBLIC BUILDINGS ACT OF 1959, AS AMENDED, NOR, AS FAR AS YOUR OFFICE CAN DETERMINE, ANY OTHER FEDERAL STATUTE CONTAINS ANY REQUIREMENT THAT APPROPRIATIONS MADE BY THE CONGRESS FOR CONSTRUCTION OF PUBLIC BUILDINGS OR OTHER PUBLIC PURPOSES MAY BE MADE ONLY TO THE AGENCY WHICH HAS OBTAINED THE AUTHORIZATION FOR AN APPROPRIATION FOR THE PURPOSE IN QUESTION. SIMILARLY, IT IS STATED, NEITHER JEFFERSON'S MANUAL AND RULES OF THE HOUSE OF REPRESENTATIVES (H. DOC. 374, 88TH CONG; 2D SESS.) NOR SENATE PROCEDURE (S. DOC. 44, 88TH CONG; 1ST SESS.) CONTAINS ANY EXPRESS OR IMPLIED PROHIBITION AGAINST MAKING AN APPROPRIATION TO AN AGENCY OTHER THAN THE ONE WHICH SECURED THE NECESSARY AUTHORIZATION FOR THE APPROPRIATION.

AS TO PAST PRACTICES, IT IS RELATED IN YOUR LETTER THAT CONGRESS HAS FROM TIME TO TIME APPROPRIATED FUNDS FOR THE CONSTRUCTION OF PUBLIC BUILDINGS TO AGENCIES OTHER THAN GSA, ALTHOUGH THE AUTHORIZATION FOR THE APPROPRIATION HAD, IN EACH CASE, BEEN INITIATED AND OBTAINED BY THE ADMINISTRATOR OF GENERAL SERVICES PURSUANT TO THE PROCEDURE SET OUT IN SECTION 7 (A) OF THE ACT. THE ADDITIONAL OFFICE BUILDING AND WAREHOUSE FOR THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, SOCIAL SECURITY ADMINISTRATION AT WOODLAWN, BALTIMORE COUNTY, MARYLAND, IS CITED AS AN EXAMPLE WHERE A PROSPECTUS WAS SUBMITTED BY GSA AND APPROVED BY THE HOUSE PUBLIC WORKS COMMITTEE AND THE SENATE PUBLIC WORKS COMMITTEE. THE PROJECT WAS FUNDED IN FISCAL YEARS 1964 AND 1965 BY APPROPRIATIONS FROM THE FEDERAL OLD AGE AND INSURANCE TRUST FUND, TRANSFERED TO GSA.

IN ADDITION TO THE FOREGOING OUR ATTENTION IS DIRECTED TO SECTION 15 OF THE PUBLIC BUILDINGS ACT OF 1959, AS AMENDED, 40 U.S.C. 614, WHICH PROVIDES:

THE PERFORMANCE, IN ACCORDANCE WITH STANDARDS ESTABLISHED BY THE ADMINISTRATOR OF GENERAL SERVICES, OF THE RESPONSIBILITIES AND AUTHORITIES VESTED IN HIM UNDER THIS CHAPTER SHALL, EXCEPT FOR THE AUTHORITY CONTAINED IN SECTION 603 OF THIS TITLE, UPON REQUEST, BE DELEGATED TO THE APPROPRIATE EXECUTIVE AGENCY WHERE THE ESTIMATED COST OF THE PROJECT DOES NOT EXCEED $100,000, AND MAY BE DELEGATED TO THE APPROPRIATE EXECUTIVE AGENCY WHERE THE ADMINISTRATOR DETERMINES THAT SUCH DELEGATION WILL PROMOTE EFFICIENCY AND ECONOMY. NO DELEGATION OF RESPONSIBILITY OR AUTHORITY MADE UNDER THIS SECTION SHALL EXEMPT THE PERSON TO WHOM SUCH DELEGATION IS MADE, OR THE EXERCISE OF SUCH RESPONSIBILITY OR AUTHORITY, FROM ANY OTHER PROVISION OF THIS CHAPTER.

PURSUANT TO THE ABOVE AUTHORITY YOU SAY YOU HAVE RECENTLY ADVISED THE POSTMASTER GENERAL THAT YOU WILL DELEGATE TO HIM AUTHORITY TO DESIGN AND CONSTRUCT CERTAIN POSTAL FACILITIES WHICH ARE PUBLIC BUILDINGS AS DEFINED IN THE PUBLIC BUILDINGS ACT OF 1959, AS AMENDED, WITH THE UNDERSTANDING THAT GSA WILL SUBMIT THE NECESSARY PROSPECTUSES TO THE PUBLIC WORKS COMMITTEES AND THAT THE REQUIRED FUNDING OF SUCH PROJECTS AS MAY BE APPROVED BY THE PUBLIC WORKS COMMITTEES WILL BE INCLUDED IN THE APPROPRIATION REQUESTS OF THE POST OFFICE DEPARTMENT. THIS WOULD BE A CASE WHERE GSA WOULD INITIATE AND OBTAIN THE AUTHORIZATION FOR THE APPROPRIATION, BUT THE APPROPRIATION WOULD BE OBTAINED BY THE POST OFFICE DEPARTMENT.

CONCERNING THE AUTHORITY TO TRANSFER FUNDS TO GSA, SECTION 210 (C) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 40 U.S.C. 490 (C), PROVIDES IN PART AS FOLLOWS:

(C) ACQUISITION OF LAND; SURVEYS; CONSTRUCTION SERVICES.

AT THE REQUEST OF ANY FEDERAL AGENCY OR ANY MIXED-OWNERSHIP CORPORATION (AS DEFINED IN THE GOVERNMENT CORPORATION CONTROL ACT) OR THE DISTRICT OF COLUMBIA, THE ADMINISTRATOR IS AUTHORIZED (1) TO ACQUIRE LAND FOR BUILDINGS AND PROJECTS AUTHORIZED BY THE CONGRESS; (2) TO MAKE OR CAUSE TO BE MADE, UNDER CONTRACT OR OTHERWISE, SURVEYS AND TEST BORINGS AND TO PREPARE PLANS AND SPECIFICATIONS FOR SUCH BUILDINGS AND PROJECTS PRIOR TO THE APPROVAL BY THE ATTORNEY GENERAL OF THE TITLE TO THE SITES THEREOF; AND (3) TO CONTRACT FOR, AND TO SUPERVISE, THE CONSTRUCTION AND DEVELOPMENT AND THE EQUIPPING OF SUCH BUILDINGS OR PROJECTS. ANY SUM AVAILABLE TO ANY SUCH FEDERAL AGENCY OR INSTRUMENTALITY FOR ANY SUCH BUILDING OR PROJECT MAY BE TRANSFERRED BY SUCH AGENCY TO THE GENERAL SERVICES ADMINISTRATION IN ADVANCE FOR SUCH PURPOSES AS THE ADMINISTRATOR SHALL DETERMINE TO BE NECESSARY, INCLUDING THE PAYMENT OF SALARIES AND EXPENSES OF PERSONNEL ENGAGED IN THE PREPARATION OF PLANS AND SPECIFICATIONS OR IN FIELD SUPERVISION, AND FOR GENERAL OFFICE EXPENSES TO BE INCURRED IN THE RENDITION OF ANY SUCH SERVICE.

WE HAVE NO OBJECTION TO GSA CONTINUING THE PRACTICE DESCRIBED IN THE FIRST PARAGRAPH OF THIS LETTER. THE PUBLIC BUILDINGS ACT OF 1959, AS AMENDED, PROHIBITS THE MAKING OF APPROPRIATIONS FOR THE CONSTRUCTION, ALTERATION, OR ACQUISITION OF PUBLIC BUILDINGS WITHOUT THE APPROVAL, BY RESOLUTION OF THE COMMITTEES ON PUBLIC WORKS. THERE IS NO AFFIRMATIVE AUTHORIZATION OR REQUIREMENT IN THE ACT THAT UPON SUCH APPROVAL, APPROPRIATIONS ARE TO BE MADE DIRECTLY TO THE GENERAL SERVICES ADMINISTRATION. THE ADMINISTRATOR IS, HOWEVER, RESPONSIBLE FOR ALL CONSTRUCTION AUTHORIZED BY THE ACT. CONSEQUENTLY, SHOULD AN APPROPRIATION BE ENACTED BY CONGRESS TO ANY AGENCY OTHER THAN GSA PROVIDING FUNDS FOR THE CONSTRUCTION OF A PUBLIC BUILDING, THE AUTHORIZATION OF WHICH WAS DULY PROVIDED IN ACCORDANCE WITH SECTION 7 (A) OF THE ACT, THE EXPENDITURE OF FUNDS BY GSA FOR OR IN CONNECTION WITH THE ACQUISITION OR CONSTRUCTION OF SUCH PUBLIC BUILDING WOULD BE CONSISTENT WITH THE STATUTORY RESPONSIBILITIES PLACED UPON THE ADMINISTRATOR.

THE REFERENCES IN YOUR LETTER TO JEFFERSON'S MANUAL AND RULES OF THE HOUSE OF REPRESENTATIVES, AND TO THE SENATE PROCEDURE, RELATE TO WHETHER A PROPOSED APPROPRIATION TO AN AGENCY OTHER THAN GSA WOULD BE SUBJECT TO A POINT OF ORDER AT THE TIME THE APPROPRIATIONS ARE BEING CONSIDERED BY CONGRESS. THIS OF COURSE WOULD BE FOR DETERMINATION BY THE CONGRESSIONAL BODY CONSIDERING THE APPROPRIATION; BUT, AS HEREINABOVE STATED, WE DO NOT BELIEVE AN APPROPRIATION TO AN AGENCY OTHER THAN GSA, WHERE THE REQUIREMENTS OF SECTION 7 (A) HAVE BEEN MET, WOULD VIOLATE THE PROVISIONS OF THE PUBLIC BUILDINGS ACT OF 1959, AS AMENDED.