B-198242.OM, APR 1, 1980

B-198242.OM: Apr 1, 1980

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LCD: FRANK OBERSON AND JOHN BALDWIN OF YOUR STAFF HAVE REQUESTED OUR INTERPRETATION OF SECTION 409 OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT - INDEPENDENT AGENCIES APPROPRIATION ACT. MESSRS OBERSON AND BALDWIN HAVE ALSO PROVIDED US A LIST OF PLACES WITHIN FEDERAL OFFICES IN WHICH PLANTS MAY BE LOCATED AND HAVE ASKED WHETHER SECTION 409 WOULD PRECLUDE CONTRACTS TO CARE FOR PLANTS LOCATED IN THOSE PLACES. CONTRACTING BY MUNICIPALITIES FOR MAINTENANCE OF THEIR PARKS IF FEDERAL REVENUE SHARING FUNDS WERE USED. THE PROVISION WAS INTRODUCED AS A FLOOR AMENDMENT TO THE HUD APPROPRIATION ACT BY SENATOR SASSER. SENATOR SASSER WAS THEN ASKED BY SENATOR PROXMIRE WHETHER THE PROPOSED AMENDMENT WOULD APPLY TO ACTIVITIES IN CITY PARKS AND SIMILAR ACTIVITIES.

B-198242.OM, APR 1, 1980

SUBJECT: PROHIBITION IN PUBLIC LAW NO. 96-103 ON USING APPROPRIATED FUNDS FOR PLANT CARE AND WATERING CONTRACTS - B-198242-O.M.

DIRECTOR, LCD:

FRANK OBERSON AND JOHN BALDWIN OF YOUR STAFF HAVE REQUESTED OUR INTERPRETATION OF SECTION 409 OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT - INDEPENDENT AGENCIES APPROPRIATION ACT, 1980, PUB. L. NO. 96 -103, 93 STAT. 771, 788 (HUD APPROPRIATION ACT). THIS PROVISION PROHIBITS THE USE OF APPROPRIATED FUNDS FOR PLANT MAINTENANCE CONTRACTS. MESSRS OBERSON AND BALDWIN HAVE ALSO PROVIDED US A LIST OF PLACES WITHIN FEDERAL OFFICES IN WHICH PLANTS MAY BE LOCATED AND HAVE ASKED WHETHER SECTION 409 WOULD PRECLUDE CONTRACTS TO CARE FOR PLANTS LOCATED IN THOSE PLACES.

SECTION 409 OF THE HUD APPROPRIATION ACT PROVIDES:

"NO PART OF ANY APPROPRIATION FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 1980, CONTAINED IN THIS OR ANY OTHER ACT SHALL BE USED TO CONTRACT WITH PRIVATE FIRMS TO PROVIDE PLANT CARE OR WATERING SERVICES."

IF READ LITERALLY, THIS SECTION WOULD PROHIBIT THE USE OF ANY APPROPRIATED MONEY FOR ANY CONTRACTS FOR MAINTENANCE OF PLANTS, WHEREVER LOCATED. FOR EXAMPLE, IT WOULD PROHIBIT CONTRACTING FOR LANDSCAPING SERVICES OUTSIDE OF FEDERAL OFFICE BUILDINGS, CONTRACTING FOR TREE AND SHRUBBERY CARE IN NATIONAL CEMETERIES, AND CONTRACTING BY MUNICIPALITIES FOR MAINTENANCE OF THEIR PARKS IF FEDERAL REVENUE SHARING FUNDS WERE USED, AS WELL AS CONTRACTING FOR WATERING OFFICE PLANTS WITHIN FEDERAL BUILDINGS.

AFTER EXAMINING THE LEGISLATIVE HISTORY OF THIS PROVISION, WE BELIEVE THAT THE CONGRESS DID NOT INTEND SUCH A BROAD APPLICATION OF THE PROHIBITION. THE PROVISION WAS INTRODUCED AS A FLOOR AMENDMENT TO THE HUD APPROPRIATION ACT BY SENATOR SASSER. IN EXPLAINING THE NEED FOR THIS PROVISION, SENATOR SASSER STATED HIS BELIEF THAT THE GOVERNMENT SHOULD NOT BE SPENDING ITS MONEY TO CARE FOR "OFFICE" PLANTS FOR FEDERAL EMPLOYEES. FOR EXAMPLE, HE STATED:

"MR. PRESIDENT, IN THE FINAL ANALYSIS, THE QUESTION COMES DOWN TO 'SHOULD THE TAXPAYERS PAY FOR OFFICE PLANTS FOR FEDERAL EMPLOYEES.'

CONSEQUENTLY, MR. PRESIDENT, I AM OFFERING AN AMENDMENT THAT WOULD PROHIBIT FEDERAL AGENCIES FROM USING APPROPRIATED FUNDS TO CONTRACT WITH PRIVATE FIRMS TO PROVIDE PLANT CARE AND WATERING SERVICES." (125 CONG. REC. S. 10725 (DAILY ED. JULY 27, 1979).)

SENATOR SASSER WAS THEN ASKED BY SENATOR PROXMIRE WHETHER THE PROPOSED AMENDMENT WOULD APPLY TO ACTIVITIES IN CITY PARKS AND SIMILAR ACTIVITIES. SENATOR SASSER REPLIED:

"NO; THIS WOULD BE ACTIVITIES WHICH ARE CONDUCTED IN THE OFFICES OF VARIOUS AGENCIES WHEREIN THEY CONTRACT WITH A PRIVATE PLANT SERVICE TO COME BY AND WATER THEIR PLANTS. (ID. AT S. 10726)

ALTHOUGH THE SENATE ADOPTED THIS AMENDMENT, WHILE THE BILL WAS IN CONFERENCE, SENATOR PROXMIRE AGAIN EXPRESSED CONCERN ABOUT THE COVERAGE OF THE AMENDMENT. THE STAFF OF THE SENATE APPROPRIATIONS COMMITTEE INFORMALLY ASKED GAO FOR ITS INTERPRETATION OF THE AMENDMENT. IN A LETTER TO THE STAFF DATED AUGUST 10, 1979, RICHARD BROWN, GAO'S DIRECTOR, GENERAL SERVICES AND CONTROLLER, STATED:

"*** BASED UPON THE LEGISLATIVE HISTORY INVOLVED, WE HAVE CONCLUDED THAT IT IS THE CLEAR INTENT OF THE SPONSOR THAT NO PART OF ANY APPROPRIATION FOR FISCAL YEAR 1980 SHOULD BE USED TO CONTRACT WITH PRIVATE FIRMS TO PROVIDE PLANT CARE OR WATERING SERVICES IN INTERIOR OFFICES HOUSING FEDERAL EMPLOYEES."

AT THE REQUEST OF SENATOR PROXMIRE, MR. BROWN'S LETTER WAS PRINTED IN THE CONGRESSIONAL RECORD TO AID THE SENATE IN ITS CONSIDERATION OF THE CONFERENCE REPORT ON THE HUD APPROPRIATION ACT. IN EXPLAINING THE AMENDMENT AT THAT TIME, SENATOR PROXMIRE STATED THAT THE PROHIBITION WAS "CLEARLY MEANT TO APPLY TO PLANTS IN INTERIOR OFFICES ***."

IT IS THUS CLEAR THAT THE CONGRESS WAS AWARE OF, AND ACQUIESCED IN, OUR INTERPRETATION THAT THE PROHIBITION ONLY APPLIED TO PLANT MAINTENANCE CONTRACTS INSIDE FEDERAL OFFICES. MAINTENANCE CONTRACTS FOR OUTDOOR PLANTS WERE NOT INTENDED TO BE COVERED.

BECAUSE THE LANGUAGE OF SECTION 409 IS ABSOLUTE, IT MIGHT BE CONSIDERED AS APPLYING TO ALL PLANTS LOCATED INSIDE FEDERAL BUILDINGS OR IN RENTED SPACE CONTROLLED AND OCCUPIED BY THE FEDERAL GOVERNMENT.

HOWEVER, WE ARE NOT CONVINCED THAT THE CONGRESS INTENDED SUCH A BROAD PROHIBITION.

FOR EXAMPLE, IN INTRODUCING THE AMENDMENT, SENATOR SASSER STATED THAT HE DIDN'T THINK TENNESSEE TAXPAYERS WOULD WANT TO PAY FOR INDOOR OFFICE PLANTS "FOR FEDERAL EMPLOYEES." FURTHER, IN MR. BROWN'S LETTER, WHICH IS PART OF THE LEGISLATIVE HISTORY, GAO'S INTERPRETATION WAS THAT THE PROHIBITION EXTENDED TO PLANTS IN INTERIOR OFFICES "HOUSING FEDERAL EMPLOYEES." FINALLY, SENATOR PROXMIRE EXPLAINED THAT THE PROHIBITION APPLIED TO PLANTS IN INTERIOR OFFICES "WHICH I THINK WE CAN AGREE SHOULD BE CARED FOR BY THE OCCUPANTS OF THOSE OFFICES RATHER THAN A PRIVATE CONTRACTOR." FROM THESE STATEMENTS, IT APPEARS THAT THE PROHIBITION MIGHT ONLY APPLY TO OFFICE SPACE TO WHICH PARTICULAR FEDERAL EMPLOYEES ARE ACTUALLY ASSIGNED. IN SUCH SPACE, IT APPEARS THAT THE CONGRESS INTENDS THAT THE OCCUPANT SHOULD CARE FOR THE PLANTS.

BECAUSE THE LEGISLATIVE HISTORY GIVES US REASON TO DOUBT THAT THE CONGRESS INTENDED THE PROHIBITION TO APPLY TO ALL INTERIOR PLANTS, GAO SHOULD ONLY TAKE EXCEPTION TO CLEAR CASES OF VIOLATION; THAT IS, WHERE FISCAL YEAR 1980 APPROPRIATED FUNDS ARE USED FOR PRIVATE CONTRACTS TO CARE FOR OR WATER PLANTS LOCATED IN AREAS WHERE AN INDIVIDUAL OR GROUP OF FEDERAL EMPLOYEES ARE ASSIGNED TO WORK. WE SHOULD NOT TAKE EXCEPTION WHERE THE PLANTS MAINTAINED ARE IN PUBLICLY OR COMMONLY USED AREAS WHICH ARE NOT THE ASSIGNED WORK SPACE OF ANY PARTICULAR EMPLOYEE OR EMPLOYEES.

IN SPECIFIC RESPONSE TO THE LIST SUPPLIED BY MESSRS OBERSON AND BALDWIN, WE HAVE PREPARED THE TABLE ON THE FOLLOWING PAGE INDICATING WHETHER A CONTRACT TO MAINTAIN PLANTS IN THE SPECIFIED AREAS WOULD WARRANT REPORTING TO SENATOR SASSER AS CLEARLY IN VIOLATION OF SECTION 409 OF THE HUD APPROPRIATIONS ACT:

LOCATION OF PLANT IN VIOLATION OF LAW

EXHIBIT AREAS NO

RECEPTION AREA NO

LOBBIES NO

IN LIEU OF A WALL NO

ATRIUMS NO

TO SEPARATE 2 DESKS IN AN OPEN AREA YES

HALLWAYS NO

RESTROOMS NO

CORRIDORS NO

AISLES NO (UNLESS ADJACENT TO

EMPLOYEE DESKS)

CONFERENCE ROOMS NO

PRIVATE OFFICES YES

SEMI-PRIVATE OFFICES YES

OFFICES USED TO CONDUCT MEETINGS WITH NO (UNLESS EMPLOYEE IS THE PUBLIC ASSIGNED TO THAT OFFICE)

CAFETERIAS NO

OFFICES USED TO CONDUCT MEETINGS WITH NO (UNLESS EMPLOYEE IS

OTHER OFFICIALS FROM OTHER AGENCIES ASSIGNED TO THAT OFFICE)

LIBRARIES NO

COMPUTER ROOMS NO

LABORATORIES YES (UNLESS NO EMPLOYEES

ARE ASSIGNED TO THAT

LABORATORY AS WORK SPACE)

AUDITORIUMS NO