B-73841, APRIL 15, 1948, 27 COMP. GEN. 634

B-73841: Apr 15, 1948

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1948: REFERENCE IS MADE TO LETTER OF FEBRUARY 18. IN ORDER TO MAINTAIN THE CAFETERIA WHICH IS PRESENTLY OPERATING. ITS ESTABLISHMENT AND MAINTENANCE WAS NECESSARY DUE TO THE LOCATION OF THE NATIONAL BUREAU OF STANDARDS IN AN OUTLYING DISTRICT WHERE ADEQUATE COMMERCIAL FACILITIES WERE NOT READILY AVAILABLE IN THE VICINITY TO ENABLE THE EMPLOYEES TO SECURE THEIR LUNCH IN THEIR ALLOTTED PERIOD OF TIME. IT WAS NECESSARY FOR THE BUREAU TO AUGMENT ITS CAFETERIA FACILITIES WITH A TEMPORARY MAKESHIFT ARRANGEMENT BY THE ERECTION OF A PORTABLE ARMY BARRACKS TO TAKE CARE OF ITS INCREASED PERSONNEL. HAVE DETERIORATED TO THE POINT WHERE THEY NO LONGER ADEQUATELY SERVE THE NEEDS OF THE EMPLOYEES. CERTAIN FUNDS WERE MADE AVAILABLE FOR THE GENERAL OPERATION AND MAINTENANCE OF THE BUREAU AND FOR "PLANT EQUIPMENT.

B-73841, APRIL 15, 1948, 27 COMP. GEN. 634

PUBLIC BUILDINGS - REPAIRS AND IMPROVEMENTS EXTENSIVE STRUCTURAL CHANGES AND REPLACEMENT OF WORN-OUT EQUIPMENT, CONTEMPLATED IN THE ENLARGEMENT AND MODERNIZATION OF A CAFETERIA AT THE NATIONAL BUREAU OF STANDARDS, DO NOT FALL WITHIN THE CATEGORY OF MAINTENANCE AND PROTECTION, NOR DO THEY CONSTITUTE REPAIRS OR ALTERATIONS WITHIN THE MEANING OF SAID TERMS AS ORDINARILY CONSTRUED, BUT, RATHER, CONSTITUTE A "PUBLIC IMPROVEMENT" WITHIN THE MEANING OF SECTION 3733, REVISED STATUTES, WHICH, IN THE ABSENCE OF SPECIFIC PROVISION THEREFOR, MAY NOT BE CHARGED TO THE CURRENT APPROPRIATION FOR "MAINTENANCE AND PROTECTION OF BUILDINGS, INCLUDING REPAIRS AND ALTERATIONS THERETO.'

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, APRIL 15, 1948:

REFERENCE IS MADE TO LETTER OF FEBRUARY 18, 1948, FROM THE ACTING SECRETARY OF COMMERCE, REQUESTING A DECISION AS TO WHETHER FUNDS APPROPRIATED IN THE DEPARTMENT OF COMMERCE APPROPRIATION ACT, 1948, PUBLIC LAW 166, APPROVED JULY 9, 1947, 61 STAT. 295, 300, FOR THE OPERATION AND ADMINISTRATION OF THE NATIONAL BUREAU OF STANDARDS, PROPERLY MAY BE USED TO MAKE "STRUCTURAL CHANGES IN THE INDUSTRIAL BUILDING" AND TO REPLACE WORN-OUT EQUIPMENT IN THE ESTIMATED AMOUNT OF $100,000, IN ORDER TO MAINTAIN THE CAFETERIA WHICH IS PRESENTLY OPERATING.

RELATIVE TO THE MATTER, THE LETTER STATES AS FOLLOWS:

THIS CAFETERIA HAS BEEN MAINTAINED AT THE NATIONAL BUREAU OF STANDARDS FOR APPROXIMATELY THE PAST FORTY YEARS. ITS ESTABLISHMENT AND MAINTENANCE WAS NECESSARY DUE TO THE LOCATION OF THE NATIONAL BUREAU OF STANDARDS IN AN OUTLYING DISTRICT WHERE ADEQUATE COMMERCIAL FACILITIES WERE NOT READILY AVAILABLE IN THE VICINITY TO ENABLE THE EMPLOYEES TO SECURE THEIR LUNCH IN THEIR ALLOTTED PERIOD OF TIME.

DURING THE WAR, IT WAS NECESSARY FOR THE BUREAU TO AUGMENT ITS CAFETERIA FACILITIES WITH A TEMPORARY MAKESHIFT ARRANGEMENT BY THE ERECTION OF A PORTABLE ARMY BARRACKS TO TAKE CARE OF ITS INCREASED PERSONNEL. WITH THE CESSATION OF HOSTILITIES, THE BUREAU ANTICIPATED THAT ITS PERSONNEL WOULD DECREASE, BUT THIS HAS NOT BEEN THE CASE DUE TO THE INCREASE IN THE BUREAU'S REGULAR RESEARCH ACTIVITIES PERFORMED FOR OTHER GOVERNMENT AGENCIES, PARTICULARLY THE DEPARTMENT OF NATIONAL DEFENSE.

AS BOTH THE CAFETERIA FACILITIES ESTABLISHED MANY YEARS AGO IN THE INDUSTRIAL BUILDING, AS WELL AS THE TEMPORARY FACILITIES, HAVE DETERIORATED TO THE POINT WHERE THEY NO LONGER ADEQUATELY SERVE THE NEEDS OF THE EMPLOYEES, THE BUREAU DESIRES TO ENLARGE THE PERMANENT FACILITIES IN THE INDUSTRIAL BUILDING AND TO REPLACE THE WORN OUT EQUIPMENT.

THE ACT APPROVED APRIL 29, 1926, 44 STAT. 356, 40 U.S.C. 14A, PLACES IN THE SECRETARY OF COMMERCE "RESPONSIBILITY FOR THE CARE, MAINTENANCE, AND PROTECTION" OF THE BUILDINGS OCCUPIED BY THE BUREAU OF STANDARDS AND OF THE EQUIPMENT USED IN CONNECTION THEREWITH; AND, BY THE TERMS OF THE DEPARTMENT OF COMMERCE APPROPRIATION ACT, 1948, 61 STAT. 300, CERTAIN FUNDS WERE MADE AVAILABLE FOR THE GENERAL OPERATION AND MAINTENANCE OF THE BUREAU AND FOR "PLANT EQUIPMENT; MAINTENANCE AND PROTECTION OF BUILDINGS, INCLUDING REPAIRS AND ALTERATIONS THERETO.'

IT WILL BE NOTED FROM THE AFORESAID LETTER THAT THE PROPOSED ENLARGEMENT OF THE CAFETERIA AT THE BUREAU WILL INCLUDE SUBSTANTIAL CHANGES IN EXISTING FACILITIES--- THE PROPOSED PROJECT CONTEMPLATING STRUCTURAL CHANGES AND THE REPLACEMENT OF WORN-OUT EQUIPMENT WITH A TOTAL ESTIMATED EXPENDITURE OF $100,000. WHILE THE APPROPRIATION FOR THE BUREAU FOR THE CURRENT FISCAL YEAR IS AVAILABLE FOR THE "MAINTENANCE AND PROTECTION OF BUILDINGS, INCLUDING REPAIRS AND ALTERATIONS THERETO," I DO NOT FEEL THAT THE CONTEMPLATED CHANGES IN THE CAFETERIA BUILDING REASONABLY MAY BE SAID TO FALL WITHIN SAID LANGUAGE. THE PROPOSED WORK DOES NOT FALL WITHIN THE CATEGORY OF MAINTENANCE AND PROTECTION NOR MAY IT BE SAID TO CONSTITUTE REPAIRS OR ALTERATIONS WITHIN THE MEANING OF SAID TERMS AS CONSTRUED BY THE ACCOUNTING OFFICERS. THUS, IN 20 COMP. DEC. 73, 74, THE TERMS "ALTERATION" AND "REPAIR" WERE DEFINED AS FOLLOWS:

THE WORD "ALTERATION" MEANS THE ACT OR PROCESS OF ALTERING, AN EFFECTED CHANGE, AS, FOR INSTANCE, THE ERECTION OF A PARTITION DIVIDING ONE ROOM FROM ANOTHER, CHANGING THE STAIRWAY, CLOSING UP A DOOR OR WINDOW, OR CUTTING A NEW DOOR OR WINDOW, ETC.

THE WORD "REPAIR" MEANS TO MAKE OVER, TO RESTORE TO A GOOD OR SOUND STATE, AS REPAIRING THE ROOF, REPAIRING WINDOWS, OR REPAIRING THE OUTSIDE STEPS, ETC. ALSO, IN 2 COMP. GEN. 301, IT WAS STATED THAT WHILE THE USE OF AN APPROPRIATION FOR "REPAIRS AND PRESERVATION OF PUBLIC BUILDINGS" HAD BEEN PERMITTED FOR MINOR IMPROVEMENTS, THE GENERAL POLICY WAS TO RESTRICT ITS USE AS TO EXCLUDE PAYMENT FROM IT "FOR ALTERATION OR IMPROVEMENT OF A BUILDING OF ANY CONSIDERABLE MAGNITUDE OR IMPORTANCE, AS TO WHICH IT IS CUSTOMARY AND PROPER TO OBTAIN SPECIFIC APPROPRIATION.'

FURTHERMORE, THE CONTEMPLATED ENLARGEMENT AND MODERNIZATION OF THE PRESENT CAFETERIA FACILITIES APPEAR TO CONSTITUTE A "PUBLIC IMPROVEMENT" WITHIN THE MEANING OF SECTION 3733, REVISED STATUTES (41 U.S.C. 12), AS FOLLOWS:

NO CONTRACT SHALL BE ENTERED INTO FOR THE ERECTION, REPAIR, OR FURNISHING OF ANY PUBLIC BUILDING, OR FOR ANY PUBLIC IMPROVEMENT WHICH SHALL BIND THE GOVERNMENT TO PAY A LARGER SUM OF MONEY THAN THE AMOUNT IN THE TREASURY APPROPRIATED FOR THE SPECIFIC PURPOSE. IN SUCH CONNECTION, IT WAS HELD IN 8 COMP. GEN. 335, THAT THE INSTALLATION OF AN ELEVATOR IN A PUBLIC BUILDING CONSTITUTED A PUBLIC IMPROVEMENT WITHIN THE MEANING OF THE QUOTED PROVISION OF THE REVISED STATUTES AND THAT, SINCE THERE WAS NO SPECIFIC PROVISION FOR SUCH INSTALLATION IN THE APPROPRIATION SOUGHT TO BE CHARGED, THE APPROPRIATION WAS NOT AVAILABLE FOR SAID PURPOSES. THE APPROPRIATION HERE INVOLVED DOES NOT PROVIDE SPECIFICALLY FOR THE ENLARGEMENT AND MODERNIZATION OF THE CAFETERIA FACILITIES AT THE BUREAU OF STANDARDS.

FURTHERMORE, CERTAIN REPRESENTATIVES WITH RESPECT TO THE CAFETERIA WERE MADE TO A SUBCOMMITTEE OF THE SENATE COMMITTEE ON CIVIL SERVICE, DURING FEBRUARY, 1947, PURSUANT TO A RESOLUTION TO INVESTIGATE THE SYSTEM OF OPERATING CAFETERIAS IN GOVERNMENT BUILDINGS, AS FOLLOWS ( HEARINGS, PART 4, PAGE 371, ET SEQ.):

IT IS LOCATED ON THE THIRD FLOOR OF THE INDUSTRIAL BUILDING, ONE OF THE LARGEST BUILDINGS AT THE BUREAU. CAFETERIA SPACE WAS PROVIDED FOR WHEN THIS BUILDING WAS ERECTED IN 1918 * * * SINCE 1930, THE CAFETERIA HAS BEEN OPERATED ON A NON-PROFIT BASIS BY THE NATIONAL BUREAU OF STANDARDS WELFARE COMMITTEE, NOW THE NATIONAL BUREAU OF STANDARDS WELFARE ASSOCIATION, INC. * * * EXPENSES INCIDENT TO THE OPERATION OF THE CAFETERIA ARE CONFINED TO THE COST OF FOOD AND SALARIES PAID TO OPERATING PERSONNEL, MAINTENANCE, AND REPLACEMENT OF EQUIPMENT * * * THE ORIGINAL EQUIPMENT WAS INSTALLED, THAT IS, THE MAINTAINED AND ALL ADDITIONAL EQUIPMENT HAS BEEN PAID FOR OUT OF STATIONARY EQUIPMENT, BY THE GOVERNMENT, BUT SINCE THEN ANYTHING ELSE HAS BEEN MAINTAINED AND ALL ADDITIONAL EQUIPMENT HAS BEEN PAID FOR OUT OF CAFETERIA FUNDS * * * WE (THE ASSOCIATION) PAY NO RENT * * * WE DO NOT PAY FOR ELECTRICITY OR GAS * * * (WE PAY FOR) ALL EQUIPMENT REPLACEMENTS.

THUS, THE FACT REMAINS THAT THE SUBCOMMITTEE, AND THE CONGRESS, WERE GIVEN TO UNDERSTAND IN RATHER DEFINITE LANGUAGE THAT REPLACEMENTS OF EQUIPMENT WERE CONSIDERED TO BE A RESPONSIBILITY OF, AND WERE BEING MADE BY, THE NATIONAL BUREAU OF STANDARDS WELFARE ASSOCIATION, INC. NO REPRESENTATIONS TO THE CONTRARY HAVE BEEN FOUND IN THE LEGISLATIVE PROCEEDINGS INCIDENT TO THE PASSAGE OF THE BUREAU'S APPROPRIATION FOR 1948 (APPROVED ON JULY 9, 1947), THE HEARINGS ON WHICH WERE NOT COMPLETED UNTIL NEARLY FOUR MONTHS LATER.

ACCORDINGLY, IT MUST BE CONCLUDED THAT THE APPROPRIATION CONSIDERED IS NOT AVAILABLE FOR THE PURPOSE IN QUESTION.