B-186818, SEP 22, 1976

B-186818: Sep 22, 1976

Additional Materials:

Contact:

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

 

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

SINCE PAYMENTS TO GSA FOR SPECIAL REIMBURSABLE SERVICES ARE NOT PART OF STANDARD LEVEL USER CHARGES. THEY ARE NOT SUBJECT TO 90 PERCENT CEILING AND MUST BE PAID IN FULL. FOOD AND DRUG ADMINISTRATION'S STANDARD LEVEL USER CHARGE PAYMENTS: THIS DECISION IS IN RESPONSE TO AN INQUIRY BY THE ASSISTANT SECRETARY. THE SLUCS ARE ESTABLISHED PURSUANT TO SECTION 210(J) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949. WHICH PROVIDES IN PART: "THE ADMINISTRATOR OF GENERAL SERVICES IS AUTHORI7ED AND DIRECTED TO CHARGE ANYONE FURNISHED SERVICES. THE PROCEEDS FROM SLUCS ARE PAID INTO THE FEDERAL BUILDINGS FUND CREATED BY SECTION 210(F) OF THE 1949 ACT. WE HAVE BEEN INFORMALLY ADVISED BY FDA'S BUDGET OFFICE THAT GSA ASSESSED FDA THE AMOUNT OF $14.

B-186818, SEP 22, 1976

1. FOOD AND DRUG ADMINISTRATION MUST PAY TO GENERAL SERVICES ADMINISTRATION (GSA) 90 PERCENT OF STANDARD LEVEL USER CHARGES (SLUCS) FROM ITS "SALARIES AND EXPENSES" APPROPRIATION UNDER PUB. L. NO. 94 122, NOTWITHSTANDING FURTHER REDUCTIONS IN ORIGINAL BUDGET ESTIMATES FOR THIS PURPOSE RECOMMENDED IN CONGRESSIONAL COMMITTEE REPORTS. SECTION 608 OF PUB. L. NO. 94-122, WHICH IMPOSES 90 PERCENT CEILING, CONSTITUTES ONLY LEGALLY BINDING LIMIT ON SLUC PAYMENTS. B-177610, SEPTEMBER 3, 1976. 2. SINCE PAYMENTS TO GSA FOR SPECIAL REIMBURSABLE SERVICES ARE NOT PART OF STANDARD LEVEL USER CHARGES, THEY ARE NOT SUBJECT TO 90 PERCENT CEILING AND MUST BE PAID IN FULL.

FOOD AND DRUG ADMINISTRATION'S STANDARD LEVEL USER CHARGE PAYMENTS:

THIS DECISION IS IN RESPONSE TO AN INQUIRY BY THE ASSISTANT SECRETARY, COMPTROLLER, OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW), CONCERNING THE AUTHORITY OF THE FOOD AND DRUG ADMINISTRATION (FDA), TO PAY STANDARD LEVEL USER CHARGES (SLUC) FOR SPACE RENTAL FOR FISCAL YEAR 1976, IN THE FULL AMOUNT ASSESSED BY THE GENERAL SERVICES ADMINISTRATION (GSA).

THE SLUCS ARE ESTABLISHED PURSUANT TO SECTION 210(J) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 40 U.S.C. 490(J)(SUPP. V, 1975), WHICH PROVIDES IN PART:

"THE ADMINISTRATOR OF GENERAL SERVICES IS AUTHORI7ED AND DIRECTED TO CHARGE ANYONE FURNISHED SERVICES, SPACE, QUARTERS, MAINTENANCE, REPAIR, OR OTHER FACILITIES (HEREINAFTER REFERRED TO AS SPACE AND SERVICES), AT RATES TO BE DETERMINED BY THE ADMINISTRATOR FROM TIME TO TIME AND PROVIDED FOR IN REGULATIONS ISSUED BY HIM. SUCH RATES AND CHARGES SHALL APPROXIMATE COMMERCIAL CHARGES FOR COMPARABLE SPACE AND SERVICES * * *."

THE PROCEEDS FROM SLUCS ARE PAID INTO THE FEDERAL BUILDINGS FUND CREATED BY SECTION 210(F) OF THE 1949 ACT, AS AMENDED, 40 U.S.C. 490(F)(SUPP. 1975), TO FINANCE REAL PROPERTY MANAGEMENT AND RELATED GSA ACTIVITIES.

WE HAVE BEEN INFORMALLY ADVISED BY FDA'S BUDGET OFFICE THAT GSA ASSESSED FDA THE AMOUNT OF $14,211,000 FOR FISCAL YEAR 1976, OF WHICH $9,519,000 REPRESENTS DIRECT GSA BILLINGS FOR SLUCS, $2,630,000 REPRESENTS FDA'S PRO RATA SHARE OF SLUCS FOR THE PARKLAWN COMPLEX IN ROCKVILLE, MARYLAND (PAID TO THE HEALTH SERVICES ADMINISTRATION), AND $2,062,000 REPRESENTS CHARGES FOR SPECIAL REIMBURSABLE SERVICES. HOWEVER, FDA IS OF THE OPINION THAT THE LEGISLATIVE HISTORY OF THE AGRICULTURE AND RELATED AGENCIES APPROPRIATION ACT, 1976, PUB. L. NO. 94-122, OCTOBER 21, 1975, 89 STAT. 641, INDICATES THAT THE CONGRESS INTENDED NO MORE THAN $12,037,000 TO BE EXPENDED FOR PAYMENT OF THE SLUC ASSESSED BY GSA.

PUB. L. NO. 94-122, SUPRA, APPROPRIATED $201,805,000 FOR FDA'S FISCAL YEAR 1976 "SALARIES AND EXPENSES" ACCOUNT. THE 1976 BUDGET REQUEST FOR THIS ACCOUNT HAD BEEN $203,460,000. THE REQUESTED AMOUNT INCLUDED AN ESTIMATE OF $14,850,000 FOR GSA RENTAL CHARGES. SEE HEARINGS ON AGRICULTURE AND RELATED AGENCIES APPROPRIATIONS FOR 1976 BEFORE THE SUBCOMMITTEE ON AGRICULTURE AND RELATED AGENCIES OF THE HOUSE COMMITTEE ON APPROPRIATIONS, 94TH CONG., 1ST SESS., PT. 5, AT 279, FN. 1. THE BILL REPORTED BY THE HOUSE APPROPRIATIONS COMMITTEE (H.R. 8561, 94TH CONG.) PROPOSED $201,805,000 TO BE APPROPRIATED FOR FDA'S "SALARIES AND EXPENSES" ACCOUNT. THE COMMITTEE'S REPORT ACCOMPANYING H.R. 8561 EXPLAINED THE NET $1,655,000 DECREASE BELOW THE AMOUNT REQUESTED AS FOLLOWS:

"THE STANDARD TEN PERCENT REDUCTION FOR GSA SPACE RENTAL COSTS HAS NOT BEEN RECOMMENDED FOR THIS APPROPRIATION BECAUSE FISCAL YEAR 1975 GSA BILLINGS ARE EXPECTED TO FALL BELOW THE 1975 APPROPRIATED AMOUNT BY 3.6 MILLION. INSTEAD OF THE TEN PERCENT REDUCTION, THE COMMITTEE RECOMMENDS THAT THE ESTIMATED 1975 BILLINGS ($11,250,000) BE INCREASED BY A SEVEN PERCENT INFLATION FACTOR AND SUBTRACTED FROM THE FISCAL YEAR 1976 BUDGET AMOUNT ($14,850,000) FOR A REDUCTION OF $2,813,000.

"THE INCREASE FOR FUNDING REQUESTED POSITIONS PLUS $750,000 FOR A HIGH PRIORITY STUDY DISCUSSED BELOW, LEAVES A NET REDUCTION OF $1,655,000 BELOW THE BUDGET ESTIMATE, ALL OF WHICH IS RELATED TO THE DECREASED GSA SPACE RENTAL COSTS." H.R. REP. NO. 94-346, 78-79 (1975).

THE HOUSE OF REPRESENTATIVES PASSED H.R. 8561 ON JULY 14, 1976, PROVIDING THE AMOUNT OF THE COMMITTEE RECOMMENDATION FOR "SALARIES AND EXPENSES." THE SENATE PASSED H.R. 8561 ON JULY 25, 1975, PROVIDING THE SAME AMOUNT FOR "SALARIES AND EXPENSES" AS DID THE HOUSE OF REPRESENTATIVES. THE SENATE ACTION WAS EXPLAINED AS FOLLOWS:

"FOR SALARIES AND EXPENSES FOR THE FOOD AND DRUG ADMINISTRATION THE COMMITTEE RECOMMEDNS AN APPROPRIATION OF $201,805,000. THIS IS $1,808,000 MORE THAN PROVIDED FOR FISCAL 1975 AND IS $1,655,000 LESS THAN THE BUDGET ESTIMATE FOR FISCAL 1976. IT IS THE AMOUNT PROVIDED IN THE HOUSE BILL. THE REDUCTION FROM THE BUDGET ESTIMATE FOR FISCAL 1976 IS REPRESENTED BY A REDUCTION OF $2,813,000 FOR GSA SPACE COSTS PARTIALLY OFFSET BY INCREASES OF ADDITIONAL PERSONNEL AND SPECIAL STUDIES ON FDA REGULATIONS." S. REP. NO. 94-293, 298 (1975).

THE LANGUAGE OF ITS APPROPRIATIONS ACT, PUB. L. NO. 94-122, DOES NOT REFER TO THE COMMITTEE'S RECOMMENDED REDUCTIONS IN FDA'S BUDGET ESTIMATE FOR PAYMENT OF SLUCS. MOREOVER, NOTWITHSTANDING THE RECOMMENDATION TO THE CONTRARY IN THE HOUSE REPORT QUOTED SUPRA, SECTION 608 OF THE ACT CONTAINS THE USUAL GENERAL 90 PERCENT CEILING UPON PAYMENT OF ASSESSED SLUC AMOUNTS AS FOLLOWS:

"NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE AVAILABLE FOR PAYING TO THE ADMINISTRATOR OF THE GENERAL SERVICES ADMINISTRATION IN EXCESS OF 90 PERCENT OF THE STANDARD LEVEL USER CHARGE ESTABLISHED PURSUANT TO SECTION 210(J) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, FOR SPACE AND SERVICES." 89 STAT. 667.

APPARENTLY FDA IS OF THE OPINION THAT SINCE THE APPROPRIATIONS COMMITTEES OF BOTH HOUSES OF THE CONGRESS INDICATED IN THEIR REPORTS THAT THEIR ACTION IN CHANGING THE AMOUNTS PROVIDED FOR "SALARIES AND EXPENSES" WAS A RESULT, IN PART, OF THEIR REDUCING FDA'S BUDGET ESTIMATE FOR GSA SPACE RENTAL PAYMENTS BY $2,813,000, THE RESULTING BALANCE OF THE BUDGET ESTIMATE-- $12,037,000-- PROVIDES THE MAXIMUM AMOUNT WHICH IT IS AUTHORIZED TO PAY GSA.

OUR RECENT DECISION IN B-177610, SEPTEMBER 3, 1976, IS DISPOSITIVE OF THE ISSUES RAISED HERE TO THE EXTENT THAT THEY CONCERN PAYMENT OF SLUCS. THAT DECISION INVOLVED A SITUATION ALSO ARISING UNDER PUB. L. NO. 94-122 IN WHICH THE APPROPRIATIONS COMMITTEES HAD RECOMMENDED REDUCTIONS FROM THE BUDGET ESTIMATES BY THE SOIL CONSERVATION SERVICES (SCS), DEPARTMENT OF AGRICULTURE OF MORE THAN 10 PERCENT FOR THE PAYMENT OF SLUCS BUT THE RECOMMENDATIONS WERE NOT REFLECTED IN THE APPROPRIATION LANGUAGE ITSELF. RELYING ON PRIOR DECISIONS OF OUR OFFICE, PARTICULARLY 55 COMP.GEN. 812, 819-820 (1976), WE CONCLUDED:

"WHILE THE HOUSE APPROPRIATIONS COMMITTEE RECOMMENDED THAT SCS'S BUDGET ESTIMATES FOR GSA SPACE RENTAL BE REDUCED BY $1,318,000 (APPROXIMATELY 20 PERCENT) AND THIS RECOMMENDATION WAS CONCURRED IN BY THE SENATE, THIS DID NOT, IN OUR VIEW, SERVE TO LEGALLY RESTRICT THE AMOUNT WHICH SCS COULD PAY TO GSA SINCE THE LIMITATION WAS NOT SET FORTH IN THIS APPROPRIATION ACT ITSELF. THUS, IT IS OUR OPINION THAT SCS IS AUTHORIZED AND REQUIRED TO PAY FROM FUNDS APPROPRIATED BY PUB. L. NO. 94-122, 90 PERCENT OF THE SLUC ASSESSED BY GSA."

SIMILARLY, IT IS OUR OPINION IN THIS CASE THAT FDA IS ALSO LIABLE FOR PAYMENT OF 90 PERCENT OF THE SLUCS ASSESSED AGAINST IT.

IT APPEARS THAT $2,062,000 OF THE TOTAL AMOUNT ASSESSED BY GSA AGAINST FDA FOR FISCAL YEAR 1976 REPRESENTS CHARGES FOR SPECIAL REIMBURSABLE SERVICES RATHER THAN SLUC AMOUNTS. WHILE REIMBURSEMENTS FOR SPECIAL SERVICES ARE ALSO CREDITED TO THE FEDERAL BUILDINGS FUND, THEY OPERATE UNDER AUTHORITIES OTHER THAN THOSE APPLICABLE TO SLUCS. SEE 40 U.S.C. 490(F)(6) (SUPP. V, 1975). THE GSA REGULATIONS PROVIDE THAT THE FUNDS FOR REIMBURSABLE SERVICES SHOULD BE INCLUDED IN AGENCY BUDGET SUBMISSIONS, 41 C.F.R. 101-21.401 (1975), AND THAT ESTIMATES OF RECURRING REIMBURSABLE SERVICES AND CHARGES ARE TO BE PROVIDED BY GSA TO AGENCIES WHICH HAVE REQUESTED SUCH SERVICES EACH YEAR CONCURRENTLY WITH THE SLUC LISTINGS FOR THE APPLICABLE BUDGET YEAR. ID., SEC. 101 21.603. RATES CHARGED FOR REIMBURSABLE SERVICES ARE FIXED TO RECOVER THE APPROXIMATE COST BY GSA IN PROVIDING SUCH SERVICES, ID. SEC. 101 21.604(C). SPECIFIC TYPES OF WORK TO BE PERFORMED ON A FIXED PRICE REIMBURSABLE BASIS ARE SET FORTH IN 41 C.F.R. 101-21.606(D). FURTHER, 41 C.F.R. 101-21.604(E) PROVIDES:

"WORK AUTHORIZATIONS WHICH MUST BE COMPLETED BEFORE REIMBURSABLE WORK IS BEGUN MUST DESCRIBE THE WORK ORDERED AND INCLUDE A FIXED PRICE REPRESENTING THE COST FOR THE WORK DESCRIBED. WORK AUTHORIZATIONS MUST BE SIGNED BY A RESPONSIBLE OFFICIAL OF THE AGENCY REQUESTING THE WORK, AND MUST CONTAIN A CITATION OF THE APPROPRIATION OR FUND TO BE CHARGED AND A STATEMENT THAT THE FUNDS ARE AVAILABLE FOR IMMEDIATE OBLIGATION."

IT IS CLEAR FROM THE FOREGOING THAT CHARGES FOR REIMBURSABLE SERVICES ARE DISTINGUISHED FROM SLUCS IN TERMS OF THEIR SEPARATE AUTHORITIES AND BECAUSE THEY ARE DESIGNED ONLY TO RECOVER THE COST TO GSA OF PROVIDING SERVICES, WHEREAS SLUCS ARE TO APPROXIMATE COMMERCIAL RATES AND THUS INCLUDE A PROFIT ELEMENT IN THE ESTABLISHMENT OF RATES. IN ADDITION, THE 90 PERCENT CEILING CONTAINED IN SECTION 608 OF PUB. L. NO. 94-122, SUPRA, WHICH APPLIES TO "THE STANDARD LEVEL USER CHARGE ESTABLISHED PURSUANT TO SECTION 210(J) OF THE FEDERAL PROPERTY AND ADMINISTRATION SERVICES ACT OF 1949, AS AMENDED," DOES NOT ENCOMPASS REIMBURSEMENTS FOR SPECIAL SERVICES. SEE 55 COMP.GEN. 897, 898-99 (1976). ACCORDINGLY, CHARGES ASSESSED BY GSA FOR SUCH SPECIAL SERVICES MUST BE PAID IN FULL BY FDA FROM WHATEVER APPROPRIATIONS ARE AVAILABLE TO IT FOR THIS PURPOSE.

IN SUM, IT IS OUR OPINION THAT FDA IS AUTHORIZED AND REQUIRED TO PAY FROM FUNDS APPROPRIATED BY PUB. L. NO. 94-122, 90 PERCENT OF THE SLUCS ASSESSED BY GSA, AND 100 PERCENT OF THE CHARGES FOR SPECIAL REIMBURSABLE SERVICES.