B-159633, MAY 20, 1974

B-159633, MAY 20, 1974

1. PROHIBITION IN 40 U.S.C. 34 AGAINST EXECUTION OF CONTRACT FOR RENTAL OF ANY BUILDING IN DISTRICT OF COLUMBIA FOR GOVERNMENTAL PURPOSES UNLESS AN APPROPRIATION THEREFOR HAS BEEN MADE BARS PAYMENT OF $500 CONFERENCE ROOM RENTAL CHARGE IN ABSENCE OF DELEGATION OF LEASING AUTHORITY BY GSA ADMINISTRATOR TO OFFICIAL OF GSA WHO APPROVED FORMATION OF RENTAL AGREEMENT. 2. GOVERNMENT PAYMENT FOR COFFEE-BREAK ITEMS PROVIDED GOVERNMENT EMPLOYEES PARTICIPATING IN A MANAGEMENT SEMINAR IS NOT PERMITTED IN LIGHT OF GENERAL RULE THAT IN ABSENCE OF AUTHORIZING LEGISLATION REFRESHMENTS FURNISHED TO GOVERNMENT EMPLOYEES MAY NOT BE PAID FOR WITH APPROPRIATED FUNDS.

TO GENERAL SERVICES ADMINISTRATION:

MR. GARY E. SCHROEDER, AN AUTHORIZED CERTIFYING OFFICER OF THE GENERAL SERVICES ADMINISTRATION (GSA), HAS REQUESTED OUR DECISION CONCERNING THE PROPRIETY OF HIS CERTIFYING FOR PAYMENT AN INVOICE FROM THE THOMAS CIRCLE INN (RAMADA INN) LOCATED IN WASHINGTON, D.C. FOR EITHER THE TOTAL INVOICE AMOUNT OF $788.66 OR THE LESSER SUM OF $288.66 REPRESENTING A DEDUCTION OF THE $500 CHARGED FOR ROOM RENTAL.

THE SERVICES OF THE INN WERE OBTAINED FOR THE PURPOSE OF HOLDING A COMMERCIALLY OFFERED TRAINING COURSE ENTITLED "PROBLEM SOLVING AND DECISION MAKING - GMS-II" - A MANAGEMENT SEMINAR - DURING THE WEEK OF OCTOBER 15, 1973, THROUGH OCTOBER 19, 1973. AN OFFICIAL OF THE ADMINISTRATIVE SERVICES DIVISION OF THE AUTOMATED DATA AND TELECOMMUNICATIONS SERVICE, GSA, MADE THE NECESSARY ARRANGEMENTS WITH THE INN INCLUDING APPROVAL OF THE $100 PER DAY ROOM RENTAL CHARGE. THE AUTOMATED DATA AND TELECOMMUNICATIONS SERVICE WHICH IS DESCRIBED IN MR. SCHROEDER'S SUBMISSION AS "THE BENEFITING ORGANIZATION IN THIS CASE" IS ONE OF THE FIVE OPERATING SERVICES OF GSA WITH THE RESPONSIBILITY OF ADMINISTERING AUTOMATIC DATA PROCESSING PROGRAMS AND COMMUNICATIONS SERVICES FOR THE GOVERNMENT.

THE CERTIFYING OFFICER'S DOUBT REGARDING THE $500 ROOM RENTAL CHARGE ARISES BECAUSE OF THE PROHIBITION CONTAINED IN THE ACT OF MARCH 3, 1877, 19 STAT. 370, 40 U.S.C. 34, WHICH READS AS FOLLOWS:

"NO CONTRACT SHALL BE MADE FOR THE RENT OF ANY BUILDING, OR PART OF ANY BUILDING, TO BE USED FOR THE PURPOSES OF THE GOVERNMENT IN THE DISTRICT OF COLUMBIA, UNTIL AN APPROPRIATION THEREFOR SHALL HAVE BEEN MADE IN TERMS BY CONGRESS, AND THIS CLAUSE SHALL BE REGARDED AS NOTICE TO ALL CONTRACTORS OR LESSORS OF ANY SUCH BUILDING OR PART OF ANY BUILDING."

MR. SCHROEDER'S LETTER INDICATES HIS CONCERN THAT "(SINCE) THE APPROPRIATION LANGUAGE FOR THE AUTOMATED DATA AND TELECOMMUNICATIONS SERVICE, THE BENEFITING ORGANIZATION IN THIS CASE, DOES NOT SPECIFICALLY PROVIDE FOR THE RENTAL OF SPACE ***," THE LANGUAGE OF 40 U.S.C. 34 PROHIBITS PAYMENT OF THE ROOM RENTAL CHARGE WITH GOVERNMENT FUNDS.

OUR OFFICE HAS HELD THAT THE PROHIBITION EXPRESSED IN 40 U.S.C. 34 AGAINST THE EXECUTION OF A CONTRACT FOR THE RENTAL OF ANY BUILDING IN THE DISTRICT OF COLUMBIA FOR GOVERNMENTAL PURPOSES UNTIL AN APPROPRIATION HAS BEEN MADE IS COMPREHENSIVE AND APPLIES TO ALL USES WHETHER TEMPORARY OR PERMANENT. SEE 35 COMP. GEN. 314 (1955) AND 49 COMP. GEN. 305 (1969) AS WELL AS CASES CITED IN THOSE DECISIONS. HOWEVER, THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 377, AS AMENDED, AUTHORIZES GSA TO ENTER INTO LEASING AGREEMENTS FOR THE BENEFIT AND ACCOMMODATION OF FEDERAL AGENCIES. SPECIFICALLY SECTION 210(H)(1) OF THAT ACT (40 U.S.C. 490(H)(1)) PROVIDES AS FOLLOWS:

"THE ADMINISTRATOR (OF GSA) IS AUTHORIZED TO ENTER INTO LEASE AGREEMENTS WITH ANY PERSON, COPARTNERSHIP, CORPORATION, OR OTHER PUBLIC OR PRIVATE ENTITY, WHICH DO NOT BIND THE GOVERNMENT FOR PERIODS IN EXCESS OF TWENTY YEARS FOR EACH SUCH LEASE AGREEMENT, ON SUCH TERMS AS HE DEEMS TO BE IN THE INTEREST OF THE UNITED STATES AND NECESSARY FOR THE ACCOMMODATION OF FEDERAL AGENCIES IN BUILDINGS AND IMPROVEMENTS WHICH ARE IN EXISTENCE OR TO BE ERECTED BY THE LESSOR FOR SUCH PURPOSES AND TO ASSIGN AND REASSIGN SPACE THEREIN TO FEDERAL AGENCIES."

WE CONSIDER THE LANGUAGE OF THIS SECTION TOGETHER WITH ITS LEGISLATIVE HISTORY AS AUTHORIZING THE ADMINISTRATOR OF GSA TO LEASE BUILDINGS AND PARTS OF BUILDINGS IN THE DISTRICT OF COLUMBIA (SEE PAGE 1, HOUSE REPORT NO. 1814, AND PAGES 1, 2, AND 3 OF THE SENATE REPORT NO. 1146, 85TH CONGRESS). CONSEQUENTLY, IT IS OUR VIEW THAT IF THE ADMINISTRATOR OF GSA HAD AUTHORIZED THE FORMATION OF THIS RENTAL AGREEMENT, THE STATUTORY REQUIREMENT OF 40 U.S.C. 34, THAT NO CONTRACT TO RENT SPACE IN THE DISTRICT OF COLUMBIA FOR GOVERNMENTAL PURPOSES BE FORMED UNLESS AUTHORIZED BY A SPECIFIC APPROPRIATION WOULD HAVE BEEN SATISFIED.

ALTHOUGH 40 U.S.C. 486(D) AUTHORIZES THE ADMINISTRATOR OF GSA TO DELEGATE THE AUTHORITY VESTED IN HIM UNDER THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 "*** TO ANY OFFICIAL IN THE GENERAL SERVICES ADMINISTRATION ***," THERE IS NOTHING IN THE RECORD TO INDICATE THAT SUCH AUTHORITY HAD BEEN DELEGATED TO THE OFFICIAL WHO ENTERED INTO THE QUESTIONED LEASE ARRANGEMENT. THEREFORE, ON THE BASIS OF THE PRESENT RECORD WE MUST CONCLUDE THAT THE PROHIBITION CONTAINED IN 40 U.S.C. 34 BARS PAYMENT OF THE $500 ROOM RENTAL CHARGE. IN ACCORDANCE WITH THE FOREGOING THE FIRST QUESTION PRESENTED IN THE CERTIFYING OFFICER'S SUBMISSION AS TO WHETHER THE INVOICE CAN PROPERLY BE CERTIFIED FOR PAYMENT IN TOTAL AMOUNT OF $788.66 IS ANSWERED IN THE NEGATIVE.

THE REMAINING AMOUNT OF $288.60 THAT IS INCLUDED IN THIS INVOICE AS AN EXPENSE OF CONDUCTING THIS SEMINAR APPARENTLY REPRESENTS THE COMBINED COST OF THE DAILY COFFEE-REFRESHMENT BREAKS THAT WERE PROVIDED TO SEMINAR PARTICIPANTS AND THE RENTAL FEES CHARGED FOR THE USE OF VARIOUS INSTRUCTIONAL AIDS SUCH AS TAPE RECORDERS AND EASELS. ALTHOUGH WE DO NOT QUESTION PAYMENT FOR THE LATTER ITEMS, IT HAS GENERALLY BEEN HELD THAT IN THE ABSENCE OF AUTHORIZING LEGISLATION THE COST OF REFRESHMENTS FURNISHED TO GOVERNMENT EMPLOYEES MAY NOT BE PAID WITH APPROPRIATED FUNDS. SEE 47 COMP. GEN. 657 (1968); AND B-168774, SEPTEMBER 2, 1970, AS WELL AS CASES CITED IN THOSE DECISIONS. UNDER THE CIRCUMSTANCES AS REPORTED IN THE CERTIFYING OFFICER'S LETTER WE ARE NOT AWARE OF ANY BASIS ON WHICH TO AUTHORIZE PAYMENT FOR THE COFFEE BREAK ITEMS PROVIDED TO SEMINAR PARTICIPANTS. CONSEQUENTLY, WE MUST CONCLUDE ON THE BASIS OF THE PRESENT RECORD THAT IT WOULD BE IMPROPER FOR THE GOVERNMENT TO PAY THE $168 COFFEE -BREAK EXPENSES.

IN ACCORDANCE WITH THE FOREGOING, THE INVOICE MAY BE PROPERLY CERTIFIED FOR PAYMENT IN THE AMOUNT OF $120.66 REPRESENTING A DEDUCTION OF $668 FROM THE TOTAL INVOICE AMOUNT OF $788.66.