B-70976, DECEMBER 26, 1947, 27 COMP. GEN. 347

B-70976, DECEMBER 26, 1947, 27 COMP. GEN. 347

DEPARTMENTS AND ESTABLISHMENTS - FURNISHING OF SPACE, ETC., IN PUBLIC BUILDINGS SINCE THE HOUSE LOAN BANK BOARD, AS CONSTITUTED BY REORGANIZATION PLAN NO. 3 OF 1947, IS NOT A WHOLLY OWNED GOVERNMENT CORPORATION, NOTWITHSTANDING ITS FUNCTIONS INCLUDE THOSE OF BOARDS OF DIRECTORS OF GOVERNMENT CORPORATIONS WHICH WERE TRANSFERRED TO IT PURSUANT TO SAID PLAN, SECTION 306 OF THE GOVERNMENT CORPORATIONS ACT, 1948, REQUIRING WHOLLY OWNED GOVERNMENT CORPORATIONS OCCUPYING SPACE IN PUBLIC BUILDINGS AT THE SEAT OF GOVERNMENT TO PAY RENT THEREFOR, AFFORDS NO BASIS FOR REQUIRING THE BOARD TO PAY RENT FOR ANY SPACE IT OCCUPIES IN SUCH AN OFFICE BUILDING. WHILE THE COSTS OF MAINTENANCE AND OPERATION OF A GOVERNMENT-OWNED OFFICE BUILDING--- TRANSFERRED TO THE UNITED STATES PURSUANT TO SECTION 306 OF THE GOVERNMENT CORPORATIONS APPROPRIATION ACT, 1948, AND PLACED UNDER THE CONTROL OF THE PUBLIC BUILDINGS ADMINISTRATION--- MAY NOT HAVE BEEN ANTICIPATED OR INCLUDED IN THE ADMINISTRATION'S BUDGET ESTIMATES, AND WHILE UNDER THE ACT OF MARCH 1, 1919, THE ADMINISTRATION MERELY CONTROLS AND ALLOCATES BUILDING SPACE, IT IS THE RESPONSIBILITY OF THE ADMINISTRATION TO USE FUNDS APPROPRIATED TO IT BY THE INDEPENDENT OFFICES APPROPRIATION ACT, 1948, FOR THE REPAIR, UPKEEP, OPERATION, ETC., OF PUBLIC BUILDINGS, FOR THE COST OF MAINTAINING AND OPERATING THE SPACE IN SUCH A BUILDING OCCUPIED BY A GOVERNMENT AGENCY. THE PROVISION IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1948, AUTHORIZING REIMBURSEMENT OF THE PUBLIC BUILDINGS ADMINISTRATION FOR SERVICES FURNISHED OTHER GOVERNMENTAL ACTIVITIES, WHICH CONTEMPLATES SERVICES THAT OTHERWISE ARE NOT REQUIRED TO BE PERFORMED BY THE ADMINISTRATION--- SUCH AS SERVICES WHICH MAY BE RENDERED UNDER SECTION 601 OF THE ECONOMY ACT--- CONSTITUTES NO BASIS FOR REQUIRING A GOVERNMENT AGENCY OCCUPYING SPACE IN A GOVERNMENT-OWNED OFFICE BUILDING UNDER THE CONTROL AND MANAGEMENT OF THE ADMINISTRATION TO REIMBURSE THE ADMINISTRATION FOR THE COST OF MAINTAINING AND OPERATING THE SPACE OCCUPIED BY SUCH AGENCY, EVEN THOUGH THE CURRENT APPROPRIATION FOR SUCH AGENCY INCLUDES AN ITEM FOR RENT.

COMPTROLLER GENERAL WARREN TO THE FEDERAL WORKS ADMINISTRATOR, DECEMBER 26, 1947:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 31, 1947, REQUESTING A DECISION AS TO WHETHER, UNDER SECTION 306 OF THE GOVERNMENT CORPORATIONS APPROPRIATION ACT, 1948, PUBLIC LAW 268, 61 STAT. 574, 584, APPROVED JULY 30, 1947, THE HOUSE LOAN BANK BOARD IS REQUIRED TO PAY RENT UNDER SAID SECTION, WHETHER THE BOARD MAY BE REQUIRED TO REIMBURSE THE PUBLIC BUILDINGS ADMINISTRATION FOR THE COST OF OPERATION AND MAINTENANCE OF THE SPACE OCCUPIED BY THE FUNCTIONS OF THE BOARD WHICH ARE NONCORPORATE IN CHARACTER, UNTIL APPROPRIATIONS FOR THE OPERATION AND MAINTENANCE OF THE BUILDING BECOME AVAILABLE TO THE PUBLIC BUILDINGS ADMINISTRATION.

THE BUILDING IN QUESTION, OF WHICH THE BOARD IS AN OCCUPANT, WAS TRANSFERRED TO THE UNITED STATES AND PLACED UNDER THE CONTROL OF THE PUBLIC BUILDINGS ADMINISTRATION PURSUANT TO SAID SECTION 306 OF THE GOVERNMENT CORPORATIONS APPROPRIATIONS ACT, 1948, WHICH SECTION PROVIDES AS FOLLOWS:

TITLE TO ALL OFFICE BUILDINGS AT THE SEAT OF GOVERNMENT, WHICH ARE OWNED BY WHOLLY OWNED GOVERNMENT CORPORATIONS, AND ALL RIGHT, TITLE, OR INTEREST OF SUCH CORPORATIONS IN THE LAND UPON WHICH SUCH BUILDINGS ARE LOCATED ARE HEREBY TRANSFERRED TO THE UNITED STATES, AND THE SECRETARY OF THE TREASURY IS AUTHORIZED AND DIRECTED TO DISCHARGE THE INDEBTEDNESS TO THE TREASURY OF ANY CORPORATION HOLDING SUCH RIGHTS, TITLE, OR INTERESTS IN ANY SUCH LAND OR BUILDING TO THE VALUE THEREOF AS DETERMINED BY THE SECRETARY OF THE TREASURY AS OF THE DATE OF TRANSFER: PROVIDED, THAT IN CASE OF DISAGREEMENT ON THE PART OF THE HEAD OF THE CORPORATION WITH RESPECT TO SAID VALUE AS DETERMINED, THE ADMINISTRATOR OF THE FEDERAL WORKS AGENCY SHALL MAKE A FINAL DETERMINATION OF THE PROPERTY VALUE. HEREAFTER, SUCH BUILDINGS SHALL BE CONTROLLED AND MANAGED IN THE SAME MANNER AS PRESCRIBED IN THE ACT OF MARCH 1, 1919, AS AMENDED (40 U.S.C. 1). WHOLLY OWNED GOVERNMENT CORPORATIONS REQUIRING SPACE IN OFFICE BUILDINGS AT THE SEAT OF GOVERNMENT SHALL OCCUPY ONLY SUCH SPACE AS MAY BE ALLOTTED IN ACCORDANCE WITH THE PROVISIONS OF SUCH ACT OF MARCH 1, 1919, AS AMENDED (40 U.S.C. 1), AND SHALL PAY SUCH RENTAL THEREON AS MAY BE DETERMINED BY THE FEDERAL WORKS ADMINISTRATOR, SUCH RENTAL TO INCLUDE ALL COST OF MAINTENANCE, UPKEEP, AND REPAIR.

WHETHER THE BOARD IS REQUIRED TO PAY RENT UNDER THE FOREGOING PROVISIONS OF LAW DEPENDS UPON ITS STATUS. THAT IS TO SAY, IF THE BOARD IS A WHOLLY OWNED GOVERNMENT CORPORATION THE PROVISIONS OF THE SAID SECTION WOULD APPLY; IF IT BE AN AGENCY OF THE GOVERNMENT SAID PROVISIONS HAVE NO APPLICATION.

THE HOME LOAN BANK BOARD WAS CREATED BY REORGANIZATION PLAN 3 OF 1947, 61 STAT.--- (12 F.R. 4981), SECTIONS 1 AND 2 OF WHICH PROVIDE AS FOLLOWS:

SECTION 1. HOUSING AND HOME FINANCE AGENCY.--- THE HOME OWNERS' LOAN CORPORATION, THE FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, THE FEDERAL HOUSING ADMINISTRATION, THE UNITED STATES HOUSING AUTHORITY, THE DEFENSE HOMES CORPORATION, AND THE UNITED STATES HOUSING CORPORATION, TOGETHER WITH THEIR RESPECTIVE FUNCTIONS, THE FUNCTIONS OF THE FEDERAL HOME LOAN BANK BOARD, AND THE OTHER FUNCTIONS TRANSFERRED BY THIS PLAN, ARE CONSOLIDATED, SUBJECT TO THE PROVISIONS OF SECTIONS 2 TO 5, INCLUSIVE, HEREOF, INTO AN AGENCY WHICH SHALL BE KNOWN AS THE HOUSING AND HOME FINANCE AGENCY. THERE SHALL BE IN SAID AGENCY CONSTITUENT AGENCIES WHICH SHALL BE KNOWN AS THE HOME LOAN BANK BOARD, THE FEDERAL HOUSING ADMINISTRATION, AND THE PUBLIC HOUSING ADMINISTRATION.

SEC. 2. HOME LOAN BANK BOARD. (A) THE HOME LOAN BANK BOARD SHALL CONSIST OF THREE MEMBERS APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. NOT MORE THAN TWO MEMBERS OF THE BOARD SHALL BE MEMBERS OF THE SAME POLITICAL PARTY. THE PRESIDENT SHALL DESIGNATE THE MEMBERS OF THE BOARD FIRST APPOINTED HEREUNDER TO SERVE FOR TERMS EXPIRING, RESPECTIVELY, AT THE CLOSE OF BUSINESS ON JUNE 30, 1949, JUNE 30, 1950, AND JUNE 30, 1951, AND THEREAFTER THE TERM OF EACH MEMBER SHALL BE FOUR YEARS. WHENEVER A VACANCY SHALL OCCUR AMONG THE MEMBERS THE PERSON APPOINTED TO FILL SUCH VACANCY SHALL HOLD OFFICE FOR THE UNEXPIRED PORTION OF THE TERM OF THE MEMBER WHOSE PLACE HE IS SELECTED TO FILL. EACH OF THE MEMBERS OF THE BOARD SHALL RECEIVE COMPENSATION AT THE RATE OF $10,000 PER ANNUM.

(B) THE PRESIDENT SHALL DESIGNATE ONE OF THE MEMBERS OF THE HOME LOAN BANK BOARD AS CHAIRMAN OF THE BOARD. THE CHAIRMAN (1) BE THE CHIEF EXECUTIVE OFFICER OF THE BOARD, (2) APPOINT AND DIRECT THE PERSONNEL NECESSARY FOR THE PERFORMANCE OF THE FUNCTIONS OF THE BOARD OR OF THE CHAIRMAN OR OF ANY AGENCY UNDER THE BOARD, AND (3) DESIGNATE THE ORDER IN WHICH THE OTHER MEMBERS OF THE BOARD SHALL, DURING THE ABSENCE OF DISABILITY OF THE CHAIRMAN, BE ACTING CHAIRMAN AND PERFORM THE DUTIES OF THE CHAIRMAN.

(C) EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION (B) OF THIS SECTION THERE ARE TRANSFERRED TO THE HOME LOAN BANK BOARD THE FUNCTIONS (1) OF THE FEDERAL HOME LOAN BOARD, (2) OF THE BOARD OF DIRECTORS OF THE HOME OWNERS' LOAN CORPORATION, (3) OF THE BOARD OF TRUSTEES OF THE FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, (4) OF ANY MEMBER OR MEMBERS OF ANY OF SAID BOARDS, AND (5) WITH RESPECT TO THE DISSOLUTION OF THE UNITED STATES HOUSING CORPORATION.

WHILE THE FUNCTIONS OF THE BOARD OF DIRECTORS AND THE BOARD OF TRUSTEES OF THE DESIGNATED CORPORATIONS AND THOSE WITH RESPECT TO THE DISSOLUTION OF THE UNITED STATES HOUSING CORPORATION ARE TRANSFERRED TO THE HOME LOAN BANK BOARD THERE CAN BE LITTLE DOUBT THAT, UNDER THE AFORE-QUOTED PROVISIONS OF THE REORGANIZATION PLAN, THE BOARD, AS CONSTITUTED, IS AN AGENCY OF THE UNITED STATES AND IS NOT A CORPORATION. ACCORDINGLY, THE BOARD NOT BEING A "WHOLLY OWNED GOVERNMENT CORPORATION," SECTION 306 OF THE GOVERNMENT CORPORATIONS APPROPRIATIONS ACT, 1948, SUPRA, AFFORDS NO BASIS FOR REQUIRING THE BOARD TO PAY RENT FOR ANY SPACE OCCUPIED BY IT IN THE BUILDING.

THERE REMAINS THE QUESTION AS TO WHETHER THE BOARD, AS AN AGENCY OF THE GOVERNMENT, IS REQUIRED TO REIMBURSE THE PUBLIC BUILDINGS ADMINISTRATION FOR THE COST OF OPERATION AND MAINTENANCE OF THE SPACE OCCUPIED BY THE BOARD FOR THE FISCAL YEAR 1948, OR UNTIL SUCH TIME AS APPROPRIATIONS FOR THE MAINTENANCE AND OPERATION OF THE FEDERAL HOME LOAN BANK BOARD BUILDING BECOME AVAILABLE TO THE ADMINISTRATION. IN CONNECTION THEREWITH, IT IS STATED IN YOUR LETTER IN PART AS FOLLOWS:

THE CONGRESS, HOWEVER, HAS PROVIDED ANOTHER MEANS BY WHICH THE PUBLIC BUILDINGS ADMINISTRATION MAY MEET A SITUATION SUCH AS THAT WHICH NOW EXISTS BECAUSE OF THE UNFORESEEN TRANSFER TO ITS CONTROL OF THE BUILDING IN QUESTION BY INSERTING THE FOLLOWING LANGUAGE IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1948:

"THE APPROPRIATIONS FOR SALARIES AND EXPENSES, PUBLIC BUILDINGS AND GROUNDS IN AND OUTSIDE THE DISTRICT OF COLUMBIA, SHALL BE AVAILABLE FOR PRINTING AND BINDING AND FOR COMMUNICATION SERVICES SERVING ONE OR MORE GOVERNMENTAL ACTIVITIES, AND FOR SERVICES TO MOTOR VEHICLES, AND WHERE SUCH SERVICES, TOGETHER WITH QUARTERS, MAINTENANCE, OR OTHER SERVICE, ARE FURNISHED ON A REIMBURSABLE BASIS TO ANY GOVERNMENTAL ACTIVITY, SUCH ACTIVITY SHALL MAKE PAYMENT THEREFOR PROMPTLY BY CHECK UPON THE REQUEST OF THE PUBLIC BUILDINGS ADMINISTRATION EITHER IN ADVANCE OR AFTER THE SERVICE HAS BEEN FURNISHED, FOR DEPOSIT TO THE CREDIT OF THE APPLICABLE APPROPRIATION, OF ALL OR PART OF THE ESTIMATED OR ACTUAL COST THEREOF, AS THE CASE MAY BE, PROPER ADJUSTMENT UPON THE BASIS OF ACTUAL COST TO BE MADE FOR SERVICES PAID FOR IN ADVANCE.' ( ITALICS SUPPLIED.)

IT IS UNDERSTOOD THAT WHEN THE BUILDING WAS OWNED BY THE HOME OWNERS LOAN CORPORATION, THE PREDECESSORS OF THE BOARD PAID RENT FOR THE SPACE OCCUPIED BY THEM AND THAT THE BUDGET ESTIMATES FOR THE FISCAL YEAR 1948 FOR THE FEDERAL HOME LOAN BANK BOARD WERE CUT MATERIALLY BELOW THE ESTIMATES, SUCH CUTS WERE GENERAL AND DID NOT RELATE TO ANY SPECIFIC ITEM.

THE BOARD CONTENDS THAT UNDER THE INDEPENDENT OFFICES APPROPRIATIONS ACT, 1948 AND THE ACT OF MARCH 1, 1919 (40 U.S.C. 1), THE PUBLIC BUILDINGS ADMINISTRATION FOR THE FISCAL YEAR 1948 CONTAIN NO FUNDS FOR THE MAINTENANCE AND OPERATION OF THE BUILDING AND THE ACT OF MARCH 1, 1919 MERELY PLACES IN THE PUBLIC BUILDINGS ADMINISTRATION THE CONTROL AND ALLOTMENT OF SPACE IN CERTAIN GOVERNMENT BUILDINGS IN THE DISTRICT OF COLUMBIA AND MAKES NO MENTION OF THE MAINTENANCE AND OPERATION OF SUCH BUILDINGS.

WHILE IT MAY BE THAT THE MAINTENANCE AND OPERATION OF THE BUILDING UNDER CONSIDERATION WAS NOT ANTICIPATED OR INCLUDED IN THE BUDGET ESTIMATES UPON WHICH THE APPROPRIATIONS FOR THE PUBLIC BUILDINGS ADMINISTRATION FOR THE FISCAL YEAR 1948 WERE BASED, AND WHILE THE ACT OF MARCH 1, 1919, 40 STAT. 1269 (40 U.S.C. 1), MERELY PLACES IN THE ADMINISTRATION THE CONTROL AND ALLOTMENT OF SPACE IN CERTAIN BUILDINGS, THE APPROPRIATION FOR THE PUBLIC BUILDINGS ADMINISTRATION, CONTAINED IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1948, APPROVED JULY 30, 1947, 61 STAT. 592, PROVIDES IN EXPRESS TERMS THAT IT IS FOR "THE REPAIR, PRESERVATION, AND UPKEEP OF ALL COMPLETED PUBLIC BUILDINGS UNDER THE CONTROL OF THE FEDERAL WORKS AGENCY, * * * AND FOR THE OPERATION OF CERTAIN COMPLETED AND OCCUPIED BUILDINGS UNDER THE CONTROL OF THE FEDERAL WORKS AGENCY.' THE BUILDINGS EXCLUDED FROM OPERATION BY THE FEDERAL WORKS AGENCY ARE MENTIONED SPECIFICALLY IN SAID ACT. ALSO, THE SAID APPROPRIATION PROVIDES, UNDER " SALARIES AND EXPENSES," 61 STAT. 593, AS FOLLOWS:

SALARIES AND EXPENSES, PUBLIC BUILDINGS AND GROUNDS IN THE DISTRICT OF COLUMBIA AND ADJACENT AREA: FOR EXPENSES NECESSARY FOR THE ADMINISTRATION, PROTECTION, MAINTENANCE, AND IMPROVEMENT OF PUBLIC BUILDINGS AND GROUNDS IN THE DISTRICT OF COLUMBIA AND THE AREA ADJACENT THERETO, MAINTAINED AND OPERATED BY THE PUBLIC BUILDINGS ADMINISTRATION * * *.

THERE APPEARS TO BE NO QUESTION BUT THAT THE BUILDING UNDER CONSIDERATION IS A PUBLIC BUILDING UNDER THE CONTROL OF THE FEDERAL WORKS AGENCY, AND THAT IT IS THE RESPONSIBILITY OF THE PUBLIC BUILDINGS ADMINISTRATION TO MAINTAIN AND OPERATE SAID BUILDING. HENCE, THE COST OF SUCH MAINTENANCE AND OPERATION PROPERLY IS REQUIRED TO BE CHARGED AGAINST THE AFORESAID APPROPRIATION OF THE PUBLIC BUILDINGS ADMINISTRATION FOR THE FISCAL YEAR 1948, EVEN THOUGH SUCH COSTS MAY NOT HAVE BEEN CONTEMPLATED AT THE TIME THE BUDGET ESTIMATES WERE PREPARED.

AS TO THE PROVISION CONTAINED IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1948, 61 STAT. 594, QUOTED IN YOUR LETTER, AUTHORIZING REIMBURSEMENT OF THE APPLICABLE APPROPRIATIONS OF THE PUBLIC BUILDINGS ADMINISTRATION FOR SERVICES FURNISHED ANY GOVERNMENTAL ACTIVITY, SINCE THE SERVICES CONTEMPLATED UNDER THE PROVISION REFERRED TO ARE THOSE NOT OTHERWISE REQUIRED TO BE PERFORMED BY THE ADMINISTRATION BUT SERVICES SUCH AS MAY BE RENDERED UNDER SECTION 601 OF THE ECONOMY ACT OF 1932, 47 STAT. 417 (31 U.S.C. 686 (A) (, OR OTHER STATUTORY AUTHORITY, SAID PROVISION CONSTITUTES NO BASIS FOR REQUIRING THE HOME LOAN BANK BOARD TO REIMBURSE THE PUBLIC BUILDINGS ADMINISTRATION ON ACCOUNT OF THE COSTS INVOLVED. MOREOVER, THE FACT THAT THE APPROPRIATION FOR THE FISCAL YEAR 1948 FOR THE FEDERAL HOME LOAN BANK BOARD MAY HAVE INCLUDED AN ITEM FOR RENT DOES NOT AFFORD ANY BASIS FOR REQUIRING THE BOARD TO MAKE REIMBURSEMENT OF SUCH COSTS.