B-183743, JUN 13, 1975, 54 COMP GEN 1055

B-183743: Jun 13, 1975

Additional Materials:

Contact:

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

 

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

WILL NO LONGER BE FOLLOWED. THESE PANELS HAVE BEEN STAFFED BY DISTINGUISHED SCIENTISTS AND RECOGNIZED EXPERTS IN THEIR FIELDS OF ENDEAVOR. WHO ARE EMPLOYED ON A CONSULTANT BASIS BY THE OTA. INASMUCH AS THESE PANEL MEMBERS ARE VERY BUSY PEOPLE WITH FULL-TIME EMPLOYMENT IN PRIVATE INDUSTRY OR AT HIGHER LEVEL EDUCATIONAL INSTITUTIONS. PANEL MEETINGS ARE NORMALLY SCHEDULED ON THE WEEKEND AND THEN USUALLY FOR ONLY 1 DAY. PERIODIC PANEL MEETINGS ARE OPEN TO THE PUBLIC. ARE LONG-STANDING MEMBERS OF THE COSMOS CLUB AT 2121 MASSACHUSETTS AVENUE. THE FACT THAT IT IS OPEN AND IN OPERATION ON WEEKENDS. IS ALWAYS AVAILABLE FOR PANEL MEETINGS ON SHORT NOTICE. IS PROPERLY STAFFED AND EQUIPPED TO PROVIDE ALL THE SERVICES REQUIRED FOR PANEL MEETINGS.

B-183743, JUN 13, 1975, 54 COMP GEN 1055

MEETINGS - SHORT TERM CONFERENCE FACILITIES - SERVICE CONTRACT - FEDERAL PROPERTY MANAGEMENT REGULATIONS FEDERAL AGENCIES MAY NOW PROCURE THE USE OF SHORT-TERM CONFERENCES AND MEETING FACILITIES WITHOUT REGARD TO PROHIBITION AGAINST RENTAL CONTRACTS IN DISTRICT OF COLUMBIA IN 40 U.S.C. 34, INASMUCH AS THE GENERAL SERVICES ADMINISTRATION IN ITS FEDERAL PROPERTY REGULATIONS, CONTAINED IN 41 C.F.R. 101-17.101-4 HAS INTERPRETED THE PROCUREMENT OF USE OF SHORT-TERM CONFERENCE FACILITIES AS A SERVICE CONTRACT INSTEAD OF A RENTAL CONTRACT. OFFICE OF TECHNOLOGY ASSESSMENT (OTA), WHICH HAS LEGISLATIVE AUTHORITY TO CONTRACT FOR SUCH SERVICES, MAY REIMBURSE ITS PANEL MEMBER SPONSORS FOR EXPENSES INCURRED IN ARRANGING OTA PANEL MEETINGS AT THE COSMOS CLUB IN THE DISTRICT OF COLUMBIA, WITH APPROPRIATE REDUCTIONS IN EACH MEMBER'S ACTUAL SUBSISTENCE ALLOWANCE FOR MEALS PROVIDED IN THIS MANNER. 35 COMP. GEN. 314; 49 ID. 305; AND B-159633, MAY 20, 1974, INSOFAR AS THEY PROHIBITED PROCUREMENT OF SHORT TERM CONFERENCE FACILITIES IN THE DISTRICT OF COLUMBIA, WILL NO LONGER BE FOLLOWED.

IN THE MATTER OF REIMBURSEMENT OF EXPENSES FOR USE OF SHORT-TERM CONFERENCE FACILITIES IN DISTRICT OF COLUMBIA, JUNE 13, 1975:

THIS ACTION INVOLVES AN INFORMAL REQUEST FOR AN ADVANCE DECISION FROM THE OFFICE OF TECHNOLOGY ASSESSMENT (OTA), AN INDEPENDENT OFFICE WITHIN THE LEGISLATIVE BRANCH, AND THE AUTHORIZED CERTIFYING OFFICER OF THE GENERAL ACCOUNTING OFFICE, AS TO THE PROPRIETY OF MAKING CERTAIN PAYMENTS FOR EXPENSES THAT THE OTA HAS INCURRED IN CONNECTION WITH PERIODIC MEETINGS OF TECHNOLOGY ASSESSMENT PANEL MEMBERS IN WASHINGTON, D.C.

THE OTA, ESTABLISHED UNDER PROVISIONS OF 2 U.S.C. CHAPTER 15 (SUPP. III, 1973) HAS THE MISSION OF PROVIDING CONGRESS WITH SCIENTIFIC AND TECHNICAL INFORMATION, ASSESSMENTS, REPORTS, SURVEYS, ETC., IT REQUIRES IN ORDER TO LEGISLATE ON SUCH MATTERS. UNDER AUTHORITY PROVIDED IN THE AFOREMENTIONED STATUTE, THE OTA HAS ESTABLISHED SEVERAL PANELS AND COMMITTEES TO PREPARE ASSESSMENTS IN SUCH AREAS AS MATERIALS, TRANSPORTATION, ENERGY, ETC. THESE PANELS HAVE BEEN STAFFED BY DISTINGUISHED SCIENTISTS AND RECOGNIZED EXPERTS IN THEIR FIELDS OF ENDEAVOR, WHO ARE EMPLOYED ON A CONSULTANT BASIS BY THE OTA. INASMUCH AS THESE PANEL MEMBERS ARE VERY BUSY PEOPLE WITH FULL-TIME EMPLOYMENT IN PRIVATE INDUSTRY OR AT HIGHER LEVEL EDUCATIONAL INSTITUTIONS, PANEL MEETINGS ARE NORMALLY SCHEDULED ON THE WEEKEND AND THEN USUALLY FOR ONLY 1 DAY. PERIODIC PANEL MEETINGS ARE OPEN TO THE PUBLIC. MANY OF THE PANEL MEMBERS, AS DISTINGUISHED SCIENTISTS, ARE LONG-STANDING MEMBERS OF THE COSMOS CLUB AT 2121 MASSACHUSETTS AVENUE, WASHINGTON, D.C. AND DESIRE TO STAY AT THAT FACILITY WHEN VISITING WASHINGTON, D.C. HENCE, IN LIGHT OF THE PANEL MEMBERS' PREFERENCE FOR THIS FACILITY, ITS CENTRAL AND CONVENIENT LOCATION, THE FACT THAT IT IS OPEN AND IN OPERATION ON WEEKENDS, PROVIDES FOOD AND OTHER SERVICES, IS ALWAYS AVAILABLE FOR PANEL MEETINGS ON SHORT NOTICE, AND IS PROPERLY STAFFED AND EQUIPPED TO PROVIDE ALL THE SERVICES REQUIRED FOR PANEL MEETINGS, THE OTA DESIRES TO USE THE COSMOS CLUB FOR PANEL MEETINGS WHENEVER POSSIBLE. ADDITION, OTA BELIEVES THAT HOLDING PANEL MEETINGS AT THIS FACILITY WILL GIVE ITS WORK VISABILITY IN THE SCIENTIFIC COMMUNITY AND ATTRACT THE INTEREST OF OTHER DISTINGUISHED SCIENTISTS THAT IT MAY DESIRE TO RECRUIT FOR CONSULTATION.

THE FACILITIES OF THE COSMOS CLUB ARE AVAILABLE ONLY TO MEMBERS AND THEIR GUESTS. THUS, TO OBTAIN THE USE OF THESE FACILITIES FOR PANEL MEETINGS, THE OTA MUST REIMBURSE A COSMOS CLUB MEMBER FOR THE EXPENSES HE INCURS IN SPONSORING THE MEETINGS. THESE EXPENSES INCLUDE FOOD, TELEPHONE, PARKING, ROOM CHARGES, COFFEE AND SIMILAR SERVICES. THE OTA HAS SUBMITTED THE COSMOS CLUB BILLS OF SEVERAL PANEL MEMBER SPONSORS TO THIS OFFICE FOR PAYMENT AND THE GENERAL ACCOUNTING OFFICE AUTHORIZED CERTIFYING OFFICER HAS INFORMALLY REQUESTED AN ADVANCE DECISION ON SUCH EXPENDITURES. SPECIFICALLY, THE AUTHORIZED CERTIFYING OFFICER QUESTIONS WHETHER PAYMENT OF THESE CLAIMS WOULD BE PRECLUDED BY THE PROHIBITION IN 40 U.S.C. SEC. 34 (1970), AGAINST THE EXECUTION OF A CONTRACT BY A GOVERNMENT AGENCY FOR RENTAL OF ANY BUILDING IN THE DISTRICT OF COLUMBIA FOR GOVERNMENTAL PURPOSES UNLESS THERE IS A SPECIFIC APPROPRIATION THEREFOR. IN THIS CONNECTION, 40 U.S.C. SEC. 34 (1970) PROVIDES AS FOLLOWS:

NO CONTRACT SHALL BE MADE FOR THE RENT OF ANY BUILDING, OR PART OF ANY BUILDING, TO BE USED FOR THE PURPOSES OF THE GOVERNMENT IN THE DISTRICT OF COLUMBIA, UNTIL AN APPROPRIATION THEREFOR SHALL HAVE BEEN MADE IN TERMS BY CONGRESS, AND THIS CLAUSE SHALL BE REGARDED AS NOTICE TO ALL CONTRACTORS OR LESSORS OF ANY SUCH BUILDING OR PART OF ANY BUILDING.

OUR OFFICE HAS LONG HELD THAT THE PROHIBITION EXPRESSED IN 40 U.S.C. SEC. 34 (1970) AGAINST THE EXECUTION OF A CONTRACT FOR THE RENTAL OF ANY BUILDING IN THE DISTRICT OF COLUMBIA FOR GOVERNMENTAL PURPOSES UNTIL AN APPROPRIATION HAS BEEN MADE IS COMPREHENSIVE AND APPLIES TO ALL USES, WHETHER GOVERNMENT TRANSIENT OR LONG TERM. SEE 35 COMP. GEN. 314 (1955), 49 ID. 305 (1969), AND B-159633, MAY 20, 1974, AS WELL AS CASES CITED IN THESE DECISIONS. HOWEVER, THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 40 U.S.C. SEC. 490 (1970) ASSIGNS THE RESPONSIBILITY FOR ALL PHASES OF BUILDING SPACE MANAGEMENT TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION (GSA), INCLUDING THE ACQUISITION OF SPACE THROUGH LEASE OR RENTAL ARRANGEMENT WITHIN THE DISTRICT OF COLUMBIA FOR OTHER AGENCIES. PURSUANT TO ITS AUTHORITY, GSA HAS PROMULGATED FEDERAL PROPERTY MANAGEMENT REGULATIONS IN TITLE 41 OF THE CODE OF FEDERAL REGULATIONS. IN 41 C.F.R. SEC. 101 17.101-4 (1974), GSA HAS SET FORTH THE PROCEDURES THAT AGENCIES MUST FOLLOW IN OBTAINING SHORT- TERM USE OF CONFERENCE AND MEETING FACILITIES. THIS SECTION PROVIDES:

SEC. 101-17.101-4 SHORT-TERM USE OF CONFERENCE AND MEETING FACILITIES.

AGENCIES HAVING A NEED FOR FACILITIES FOR SHORT-TERM CONFERENCES AND MEETINGS SHALL CONTACT GSA INFORMALLY TO MAKE THEIR REQUIREMENTS KNOWN. GSA WILL DETERMINE IF SUITABLE GOVERNMENT-OWNED FACILITIES ARE AVAILABLE IN THE DESIRED AREA AND, IF SO, WILL NOTIFY THE REQUESTING AGENCY OF ITS ASSIGNMENT. IF NO SUITABLE FACILITIES ARE AVAILABLE, GSA WILL ASSIST OR ADVISE AGENCIES IN ARRANGING FOR THE USE OF PRIVATELY OWNED FACILITIES WHEN AGENCIES HAVE AUTHORITY TO CONTRACT BY PURCHASE ORDER OR OTHER MEANS. PAYMENT FOR USE OF PRIVATELY OWNED CONFERENCE OR MEETING ROOMS IS, IN FACT, PAYMENT FOR THE SERVICES AND FURNISHINGS THAT ARE PROVIDED. SUCH SERVICES AND FURNISHINGS, IN ADDITION TO THE FACILITIES (AUDITORIUM, CONFERENCE ROOM, MEETING ROOM, ETC.), WOULD INCLUDE CHAIRS (ALREADY PLACED AS REQUESTED BY THE USER), ROSTRUM WITH TABLES AND CHAIRS, POSTING OF NOTICES ON APPROPRIATE BUILDING BULLETIN BOARD, AMPLIFIER SYSTEM, SCREEN AND MOTION PICTURE PROJECTOR, AND OTHER SPECIAL EQUIPMENT NEEDED. GSA MAY OBTAIN PRIVATELY OWNED CONFERENCE AND MEETING FACILITIES BY SERVICE CONTRACT ON AN HOURLY RATE BASIS WHERE COMBINED REQUIREMENTS OF THE FEDERAL AGENCIES IN A PARTICULAR AREA WOULD JUSTIFY AN OPEN END SERVICE CONTRACT FOR SUCH SPACE FOR INTERMITTENT USE PERIODS OR FOR AN EXTENDED PERIOD OF TIME.

WE NOTE FROM THE ABOVE-QUOTED REGULATION THAT THE PROCUREMENT OF THE SHORT-TERM USE OF CONFERENCE AND MEETING FACILITIES IS CONSIDERED TO BE A SERVICE CONTRACT RATHER THAN A RENTAL OR LEASE CONTRACT. IT IS A GENERAL PRINCIPLE OF LAW THAT THE INTERPRETATION BY AN AGENCY OF A STATUTE WHICH IT IS CHARGED TO ADMINISTER IS ENTITLED TO GREAT WEIGHT. UNITED STATES V. JACKSON, 280 U.S. 183 (1930); NEW YORK CENTRAL SECURITIES CO. V. UNITED STATES, 287 U.S. 12 (1932); UNITED STATES V. AMERICAN TRUCKING ASSOC., INC., 310 U.S. 534 (1940); LEVINSON V. SPECTOR MOTOR CO., 330 U.S. 649 (1947); UDALL V. TOLLMAN, 380 U.S. 1 (1965); UNITED STATES V. CITY OF CHICAGO, 400 U.S. 8 (1970). HENCE, WE ARE OF THE OPTION THAT GSA, AS THE AGENCY CHARGED WITH THE ADMINISTRATION OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 40 U.S.C. SEC. 490 (1970), HAS AUTHORITY TO CONSTRUE THE PROCUREMENT OF SHORT-TERM USE OF CONFERENCE AND MEETING FACILITIES AS A SERVICE CONTRACT RATHER THAN A RENTAL CONTRACT. UNDER THIS CONSTRUCTION, THE PROCUREMENT OF SHORT-TERM USE OF CONFERENCE AND MEETING FACILITIES AS SET FORTH IN 41 C.F.R. SEC. 101-17.101-4 WOULD NOT BE PRECLUDED BY THE AFOREMENTIONED PROHIBITION IN 40 U.S.C. SEC. 34 (1970), AGAINST THE EXECUTION OF A CONTRACT BY A GOVERNMENT AGENCY FOR RENTAL OF ANY BUILDING IN THE DISTRICT OF COLUMBIA FOR GOVERNMENTAL PURPOSES UNLESS PURSUANT TO SPECIFIC APPROPRIATION AUTHORITY. WE HAVE NEVER BEFORE FULLY AGENCY PROCUREMENT OF THE USE OF SHORT-TERM CONFERENCE FACILITIES IN THE DISTRICT OF COLUMBIA AND THEREFORE OUR HOLDINGS THAT APPLY THE PROHIBITION AGAINST THE RENTAL OF SPACE IN THE DISTRICT OF COLUMBIA CONTAINED IN 40 U.S.C. SEC. 34 (1970) FOR SUCH PURPOSES, AS SET FORTH IN 35 COMP. GEN. 314 (1955); 49 ID. 305 (1969), AND B-159633, MAY 20, 1974, WILL NOT BE FOLLOWED IN THE FUTURE.

IN VIEW OF THE FOREGOING, FEDERAL AGENCIES MAY NOW PROCURE THE SHORT TERM USE OF CONFERENCE AND MEETING FACILITIES PROVIDING THEY COMPLY WITH THE REQUIREMENT OF 41 C.F.R. SEC. 101-17.101-4 FOR THE PROCUREMENT OF SUCH FACILITIES. HOWEVER, THE LEGISLATIVE HISTORY OF THE OTA INDICATES THAT THE INTENT OF CONGRESS WAS TO CONSIDER OTA AS A PART OF CONGRESS AND OTA STAFF AS "CONGRESSIONAL STAFF." H.R. REPORT NO. 92 1436, 92D CONG., 2D SESS., 10-11 (1972). AS SUCH, THE OTA WOULD NOT COME WITHIN THE GSA DEFINITION OF A "FEDERAL AGENCY" AS SET FORTH IN 41 C.F.R. SEC. 101-17.003 -23 AND THUS WOULD NOT BE REQUIRED TO COMPLY WITH THE PROVISIONS OF 41 C.F.R. SEC. 101-17.101-4, CONCERNING THE PROCUREMENT OF SHORT-TERM USE OF CONFERENCE AND MEETING FACILITIES.

ALSO, WE ARE OF THE OPINION THAT THE AUTHORITY OF THE OTA IS SUFFICIENTLY BROAD SO AS TO ENABLE IT TO REIMBURSE A PANEL MEMBER THE COST HE INCURS IN SPONSORING A PANEL MEETING AT THE COSMOS CLUB. IN THIS CONNECTION, 2 U.S.C. SEC. 475(A) (SUPP. III, 1973) PROVIDES AS FOLLOWS:

SEC. 475. POWERS OF OFFICE OF TECHNOLOGY ASSESSMENT.

THE OFFICE SHALL HAVE THE AUTHORITY, WITHIN THE LIMITS OF AVAILABLE APPROPRIATIONS, TO DO ALL THINGS NECESSARY TO CARRY OUT THE PROVISIONS OF THIS CHAPTER, INCLUDING, BUT WITHOUT BEING LIMITED TO, THE AUTHORITY TO -

(2) ENTER INTO CONTRACTS OR OTHER ARRANGEMENTS AS MAY BE NECESSARY FOR THE CONDUCT OF THE WORK OF THE OFFICE WITH ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES, WITH ANY STATE, TERRITORY, OR POSSESSION OR ANY POLITICAL SUBDIVISION THEREOF, OR WITH ANY PERSON, FIRM, ASSOCIATION, CORPORATION, OR EDUCATIONAL INSTITUTION, WITH OR WITHOUT REIMBURSEMENT, WITHOUT PERFORMANCE OR OTHER BONDS, AND WITHOUT REGARD TO SECTION 5 OF TITLE 41 ***.

THE ABOVE-QUOTED STATUTE AUTHORIZES THE OTA TO ENTER INTO ARRANGEMENTS WITH ANY PERSON AS MAY BE NECESSARY FOR THE CONDUCT OF ITS WORK AND THE ACCOMPLISHMENT OF ITS MISSION. HENCE, WE ARE OF THE OPINION THAT THE OTA HAS AUTHORITY TO REIMBURSE THE SPONSORS OF SHORT TERM PANEL MEETINGS AT THE COSMOS CLUB. HOWEVER, SINCE THE PANEL MEMBERS ARE AUTHORIZED ACTUAL SUBSISTENCE NOT TO EXCEED $50 PER DAY, THE COST OF ANY MEALS CONSUMED BY PANEL MEMBERS AT THE COSMOS CLUB AND REIMBURSED TO THE SPONSORING PANEL MEMBER, SHOULD SERVE TO REDUCE THE $50 PER DAY ACTUAL SUBSISTENCE LIMIT ON A PRO RATA BASIS.