B-8310, FEBRUARY 2, 1940, 19 COMP. GEN. 695

B-8310, FEBRUARY 2, 1940, 19 COMP. GEN. 695

LEASES - RENT - ADDITIONAL AMOUNTS - HEATING WHERE BUILDING USED 24 HOURS A DAY WHERE IT BECAME NECESSARY FOR THE GOVERNMENT TO USE LEASED PREMISES FOR AN EXTRA SHIFT OF EMPLOYEES WORKING BETWEEN THE HOURS OF 11:30 P.M. AND 7 A.M., AND NEITHER THE LESSOR NOR THE GOVERNMENT CONTEMPLATED AT THE TIME OF THE EXECUTION OF THE LEASE THAT THE GOVERNMENT WOULD REQUIRE ANY EXTRA OR UNUSUAL HEATING SERVICE, AND BOTH PARTIES THEN KNEW THAT HEAT WAS FURNISHED IN THE BUILDING FROM APPROXIMATELY 6 A.M. UNTIL MIDNIGHT, OTHERWISE PROPER PAYMENTS, UNDER A SUPPLEMENTAL LEASE, FOR HEAT FURNISHED BETWEEN THE HOURS OF MIDNIGHT AND 6 A.M. WILL NOT BE QUESTIONED EVEN THOUGH THE LEASE WHICH REQUIRED THE LESSOR TO FURNISH HEAT AS PART OF THE RENTAL CONSIDERATION MADE NO PROVISION SPECIFYING OR LIMITING THE HOURS IT WAS TO BE FURNISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, RAILROAD RETIREMENT BOARD, FEBRUARY 2, 1940:

YOUR LETTER OF JANUARY 30, 1940, WITH ENCLOSURES, IS AS FOLLOWS:

THE COMMISSIONER OF PUBLIC BUILDINGS, AT THE REQUEST OF THE RAILROAD RETIREMENT BOARD, HAS ENTERED INTO AN AGREEMENT BASED UPON AND ARISING FROM THE FOLLOWING FACTS AND CIRCUMSTANCES:

ON JULY 1, 1939, THE COMMISSIONER OF PUBLIC BUILDINGS, BY VIRTUE OF A LEASE, A PHOTOSTATIC COPY OF WHICH IS ATTACHED, PROVIDED OFFICE SPACE FOR THE RAILROAD RETIREMENT BOARD IN THE PREMISES KNOWN AS LASALLE BUILDING ( NORTH), THIS CITY. AMONG OTHER STANDARD LEASE PROVISIONS WAS ONE UNDER WHICH THE LESSOR AGREED TO FURNISH "HEAT.' AT THAT TIME THE RAILROAD RETIREMENT BOARD HAD OCCUPIED THIS SPACE FOR SEVERAL YEARS UNDER PRIOR LEASE.

IN VIEW OF THE PAST EXPERIENCE OF THE BOARD'S OPERATIONS IN SUCH PREMISES, NEITHER THE LESSOR NOR THE OCCUPANT CONTEMPLATED THAT ITS POSSESSION AND USE OF THE PREMISES WOULD REQUIRE ANY EXTRA, SPECIAL, OR UNUSUAL HEATING SERVICE. IT WAS KNOWN TO BOTH PARTIES THAT HEAT WAS FURNISHED TO THE APARTMENTS IN THIS BUILDING FROM APPROXIMATELY 6 A.M. UNTIL 12 MIDNIGHT, AND THERE WAS NO THOUGHT BUT THAT THIS AMOUNT OF HEAT WOULD MEET THE REQUIREMENTS OF THE BOARD.

HOWEVER, ON OR ABOUT JANUARY 20, 1940, IT BECAME NECESSARY TO CALL A THIRD SHIFT OF EMPLOYEES TO WORK ON THE RECORDING MACHINES STATIONED IN THESE PREMISES BETWEEN THE HOURS OF 11:30 P.M. AND 7 A.M. IT MAY BE EXPLAINED THAT THIS WORK IS ESSENTIAL AND THAT THE TIME OF COMPLETION THEREOF IS AN IMPORTANT FACTOR. BRIEFLY, THE WORK CONSISTS OF THE SYSTEMATIC COMPILATION OF MONTHLY WAGE AND SERVICE RECORDS OF APPROXIMATELY 2 MILLION EMPLOYEES IN THE RAILROAD INDUSTRY, AND THE RECEIPT, CHECKING, RECAPITULATION, AND PROMPT FORWARDING OF ANNUAL STATEMENTS THEREOF TO THE EMPLOYEES CONCERNED THROUGH THEIR EMPLOYERS. THE STATEMENTS MUST BE DISTRIBUTED AND PLACED IN THE HANDS OF THE EMPLOYEES IN ORDER THAT THEY MAY ASSENT TO THE PRESUMED CORRECTNESS THEREOF OR TAKE EXCEPTION THERETO WITHIN THE PRESCRIBED STATUTORY LIMITS. IT IS ESTIMATED THAT THE THIRD SHIFT OF EMPLOYEES FOR THIS PARTICULAR WORK WILL BE REQUIRED UNTIL SOME TIME IN APRIL 1940.

WHEN REQUESTED TO FURNISH HEAT FOR THESE PREMISES BETWEEN THE HOURS OF MIDNIGHT AND 6 A.M., THE LESSOR REFUSED ON THE GROUND THAT THIS EXTRA SERVICE WAS NOT CONTEMPLATED BY THE PARTIES, AND THAT SINCE THE LESSOR BY NECESSITY PURCHASED ITS HEAT SUPPLY FROM THE RECEIVERS OF THE LASALLE BUILDING ( SOUTH), ADDITIONAL PAYMENTS TO THE EXTENT OF THE COST OF THE EXTRA COAL CONSUMED WOULD HAVE TO BE ARRANGED FOR BEFORE IT WOULD AGREE TO FURNISH SUCH EXTRA HEAT.

FURTHERMORE, IT MAINTAINED THAT THERE WAS NO LEGAL OBLIGATION UNDER THE TERMS OF THE LEASE TO FURNISH HEAT BEYOND THAT ORDINARILY AND NORMALLY SUPPLIED. IN SUPPORT OF THIS POSITION, CITATION WAS MADE TO A LETTER OF THE ACTING COMPTROLLER GENERAL OF THE UNITED STATES TO THE CHAIRMAN, SOCIAL SECURITY BOARD, DATED JANUARY 25, 1938 (A-89614). IT APPEARS THAT THE FACTS AND CIRCUMSTANCES COVERED BY THAT LETTER WERE SUBSTANTIALLY IDENTICAL WITH THOSE IN THE INSTANT MATTER, AND THAT THE ACTING COMPTROLLER GENERAL CONCLUDED AS FOLLOWS:

"ACCORDINGLY, IN VIEW OF THE FACTS AND CIRCUMSTANCES IN THIS PARTICULAR CASE, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO OTHERWISE PROPER PAYMENTS UNDER A CONTRACT WITH THE LESSOR PROSPECTIVE IN EFFECT AND PROVIDING FOR PAYMENT BY THE GOVERNMENT FOR THE ESTIMATED ACTUAL COST OF THE SPECIAL SERVICES UNDER PARAGRAPH 6 OF THE LEASES FURNISHED BY THE LESSOR BETWEEN 12 MIDNIGHT AND 7:30 A.M., IF ADMINISTRATIVELY APPROVED AND FUNDS ARE AVAILABLE THEREFOR.'

IN VIEW OF THESE FACTS AND CIRCUMSTANCES, THE COMMISSIONER OF PUBLIC BUILDINGS HAS ENTERED INTO AN AGREEMENT TO PAY FOR THE ACTUAL COST OF THE ADDITIONAL COAL CONSUMED IN FURNISHING SUCH EXTRA SERVICE. A COPY OF THAT AGREEMENT IS ATTACHED, AND ADVICE IS REQUESTED AS TO WHETHER THE COMPTROLLER GENERAL WILL OBJECT TO ANY OTHERWISE PROPER PAYMENTS MADE THEREUNDER.

PARAGRAPH 6 OF THE LEASE OF JULY 1, 1939, REFERRED TO IN YOUR LETTER PROVIDES AS FOLLOWS:

THE LESSOR SHALL FURNISH TO THE GOVERNMENT, DURING THE OCCUPANCY OF SAID PREMISES, UNDER THE TERMS OF THIS LEASE, AS PART OF THE RENTAL CONSIDERATION, THE FOLLOWING: ELECTRIC CURRENT FOR LIGHTING, FOR ELECTRIC FANS, AND FOR ORDINARY OFFICE EQUIPMENT, TOGETHER WITH THE NECESSARY LIGHTING FIXTURES, SOCKETS, BULBS, WALL PLUGS, ETC., WATER, HEAT, ELEVATOR SERVICE, ADEQUATE TOILET FACILITIES AND SUPPLIES, WINDOW SHADES FOR ALL WINDOWS AND AWNINGS WHERE CONSIDERED NECESSARY, JANITOR SERVICE FOR THE DAILY CLEANING OF OFFICE ROOMS, CORRIDORS AND TOILET ROOMS NECESSARY FOR THE PROPER UTILIZATION OF THE SPACE, INCLUDING THE KEEPING OF SAID LIGHTING, HEATING, AND PLUMBING FIXTURES IN GOOD REPAIR.

THE SUPPLEMENTAL AGREEMENT REFERRED TO IN YOUR LETTER RECITES THAT IT WAS EXECUTED BY THE CONTRACTING PARTIES "AS OF THE TWENTY-THIRD DAY OF JANUARY 1940.' THERE IS NO PROVISION IN THE ORIGINAL LEASE AGREEMENT SPECIFYING OR LIMITING THE HOURS THE LESSOR IS REQUIRED TO FURNISH HEAT, WHICH IS INCLUDED AS ONE OF THE SPECIAL SERVICES IN PARAGRAPH 6 OF THE LEASE TO BE FURNISHED BY THE LESSOR AS PART OF THE RENTAL CONSIDERATION. HOWEVER, IN VIEW OF THE FACTS AND CIRCUMSTANCES SET FORTH IN YOUR LETTER RELATIVE TO THE INTENTION OF THE PARTIES AT THE TIME SAID LEASE WAS ENTERED INTO, IT MAY NOT BE CONSTRUED AS REQUIRING THE LESSOR TO FURNISH HEAT ON A 24-HOUR BASIS.

ACCORDINGLY, THIS OFFICE WILL NOT BE REQUIRED TO QUESTION OTHERWISE PROPER PAYMENTS UNDER THE SUPPLEMENTAL LEASE FOR HEAT FURNISHED ON AND AFTER JANUARY 23, 1940, BETWEEN THE HOURS OF "12:00 MIDNIGHT AND 6 A.M.'