B-112349, JANUARY 30, 1953, 32 COMP. GEN. 342

B-112349, JANUARY 30, 1953, 32 COMP. GEN. 342

LEASES - AIR CONDITIONING SERVICES - OVERTIME PERIODS A BUILDING LEASE WHICH CONTAINS A PROVISION FOR FURNISHING AIR CONDITIONING SERVICES DURING WORKING HOURS AND OTHER HOURS AS MAY BE REQUIRED CONTEMPLATES THE FURNISHING OF THOSE SERVICES BEYOND REGULAR WORKING HOURS NECESSITATED BY OVERTIME WORK WHICH IS WELL KNOWN TO BE REQUIRED FREQUENTLY IN THE CONDUCT OF PUBLIC BUSINESS, AND THEREFORE, A LESSOR MAY NOT BE PAID ADDITIONAL AMOUNTS FOR FURNISHING AIR CONDITIONING SERVICES DURING PERIOD EMPLOYEES ARE REQUIRED TO WORK OVERTIME. A LEASE EXECUTED BY THE GENERAL SERVICES ADMINISTRATION PURSUANT TO ITS FUNCTION AND DUTY UNDER 40 U.S.C. 304 (C) TO PROVIDE GOVERNMENT AGENCIES WITH OFFICE SPACE AND NECESSARY BUILDING SERVICES MAY NOT BE AMENDED BY AN AGREEMENT MADE BY THE OCCUPYING AGENCY WITH THE LESSOR.

ACTING COMPTROLLER GENERAL YATES TO WENDELL H. BEARDEN, FEDERAL SECURITY AGENCY, JANUARY 30, 1953:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 8, 1952, 14:M:FA, ADDRESSED TO THE DIVISION OF AUDITS, GENERAL ACCOUNTING OFFICE, REQUESTING DECISION AS TO WHETHER THERE IS AUTHORIZED TO BE CERTIFIED FOR PAYMENT A VOUCHER FOR $50 IN FAVOR OF MOLTON, ALLEN AND WILLIAMS, INC., AGENTS FOR BUILDING MANAGEMENT CORPORATION, BIRMINGHAM, ALABAMA, FOR OPERATION AND MAINTENANCE OF AIR CONDITIONING EQUIPMENT FROM 5 TO 7 P.M. MONDAY THROUGH FRIDAY AND 8 1/2 HOURS ON SATURDAY FROM 8:30 A.M. TO 5 P.M., AT THE BUREAU OF OLD-AGE AND SURVIVORS INSURANCE AREA OFFICE AT BIRMINGHAM, DURING THE PERIOD AUGUST 13, TO SEPTEMBER 13, 1952.

YOUR LETTER STATES THAT THIS SERVICE IS OVER AND ABOVE AND IN ADDITION TO THE AIR CONDITIONING REGULARLY PROVIDED BY THE LESSOR UNDER LEASE NO. WA- 6PB-6650, DATED JUNE 10, 1946, WITH THE CITY OF BIRMINGHAM, ALABAMA, AND THAT YOU ARE IN DOUBT AS TO THE PROPRIETY OF THE PAYMENT SINCE EXCEPTION HAS BEEN TAKEN IN THE AUDIT BY THE GENERAL ACCOUNTING OFFICE OF VOUCHER 297352, SEPTEMBER 1951 ACCOUNT OF PAUL D. BANNING, EFFECTING A SIMILAR PAYMENT TO THE ABOVE LESSOR FOR SUCH SERVICES DURING MAY 1951. IN THIS CONNECTION, EXCEPTION ALSO HAS BEEN TAKEN TO A LIKE PAYMENT ON VOUCHER 297353, SEPTEMBER 1951 ACCOUNT OF MR. BANNING, COVERING JUNE 1951. THE BASIS FOR THE EXCEPTIONS IS THAT THE LEASE DOES NOT AUTHORIZE PAYMENT FOR OPERATING EXPENSES OF AIR CONDITIONING DURING OVERTIME PERIODS.

UNDER THE TERMS OF THE LEASE THE GOVERNMENT IS ENTITLED TO THE USE AND OCCUPANCY OF THE DEMISED PREMISES FOR A PERIOD OF 5 YEARS WITH A RIGHT OF RENEWAL EXTENDING THE PERIOD OF OCCUPANCY TO NOT MORE THAN 10 YEARS FROM THE DATE OF ORIGINAL OCCUPANCY, APPROXIMATELY FEBRUARY 1, 1947. PARAGRAPH 7 FIXES THE RENTAL TO BE PAID AT SPECIFIED RATES PER SQUARE FOOT PER ANNUM FOR USABLE SPACE, WITHOUT ANY PROVISION FOR ADDITIONAL COMPENSATION FOR EXTRAS. PARAGRAPH 6 PROVIDES THAT THE LESSOR SHALL FURNISH THE FACILITIES, SERVICES, PRIVILEGES AND CONVENIENCES SET FORTH IN ITS PROPOSAL DATED APRIL 8, 1946, AS MODIFIED BY THE GOVERNMENT'S LETTER DATED MAY 3, 1946, AND THE LESSOR'S LETTER OF MAY 22, AND TELEGRAM OF MAY 23, 1946, AND ACCEPTED ON MAY 24, 1946. IT FURTHER IS PROVIDED THAT SAID PROPOSAL AS MODIFIED AND ACCEPTED, IS INCORPORATED INTO AND MADE A PART OF THE LEASE:

IN THE LETTER OF APRIL 8, 1946, THE CITY OF BIRMINGHAM OFFERED TO "FURNISH COOLED AIR FROM REGULAR AIR-CONDITIONING EQUIPMENT DURING PROPER MONTHS AND REASONABLE WORKING HOURS.' THE GOVERNMENT'S LETTER OF MAY 3, 1946 ACCEPTED SUCH OFFER WITH THE PERTINENT QUALIFICATION THAT " THE BUILDING SERVICES FURNISHED BY YOU SHALL BE AT SUCH TIMES AS THE GOVERNMENT EMPLOYEES ARE REQUIRED TO WORK WITHIN THE SPACE.' THIS STIPULATION WAS AGREED TO BY THE CITY IN ITS LETTER OF MAY 22, 1946, IT BEING STATED THAT THIS REQUIREMENT WAS " ACCEPTED. IT BEING UNDERSTOOD THAT SUCH SERVICE SHALL BE FURNISHED DURING REGULAR WORKING HOURS, THAT IS, 8:00 A.M. TO 6:00 P.M. MONDAY'S THROUGH FRIDAY-S, AND ADDITIONAL SERVICE DURING OTHER HOURS AS REQUIRED BY GOVERNMENT. IT BEING UNDERSTOOD GOVERNMENT WILL BE REASONABLE IN ITS REQUIREMENTS FOR ADDITIONAL SERVICES.' THESE CONDITIONS WERE ACCEPTED IN THE GOVERNMENT'S LETTER OF MAY 24, 1946.

THUS, IT APPEARS THAT THE LEASE EXPRESSLY PROVIDES THAT, IN ADDITION TO REGULAR WORKING HOURS, COOLED AIR SERVICES WILL BE FURNISHED DURING OTHER HOURS AS REASONABLY REQUIRED. WHAT IS A REASONABLE TIME DEPENDS UPON THE CIRCUMSTANCES IN EACH CASE, COVIELLO V. MOCO FRUIT CO., INC., 109 P.2D 766, AND IT MUST STEM FROM A JUSTIFIABLE REASON, LONG V. EQUITABLE TAX ASSURANCE SOCIETY OF UNITED STATES, 60 N.E. 2D 808. THE SERVICES BEYOND REGULAR WORKING HOURS IN QUESTION WERE NECESSITATED BY OVERTIME WORK WHICH IT IS WELL KNOWN FREQUENTLY IS REQUIRED IN THE CONDUCT OF PUBLIC BUSINESS AND MUST BE ADEQUATELY PROVIDED FOR IN ADVANCE. IT UNDOUBTEDLY WAS FOR THAT REASON THAT THE GOVERNMENT INSISTED UPON MODIFYING THE ORIGINAL OFFER SO AS TO PROVIDE FOR NECESSARY SERVICE BEYOND REGULAR WORKING HOURS. ALSO, IT IS THE FUNCTION AND DUTY OF THE GENERAL SERVICES ADMINISTRATION TO PROVIDE OFFICE SPACE AND NECESSARY BUILDING SERVICE FOR THE BUREAU OF OLD-AGE AND SURVIVORS INSURANCE AREA OFFICE. 40 U.S.C. 304 (C). CONSEQUENTLY, THERE WAS NO AUTHORITY IN ANY OFFICER OF YOUR BUREAU TO ENTER INTO AN AGREEMENT WITH THE LESSOR PURPORTING TO AMEND THE TERMS OF THE LEASE TO PROVIDE SERVICES THEREUNDER OR TO OTHERWISE OBLIGATE FUNDS OF THE BUREAU FOR THAT PURPOSE UNDER A SEPARATE INFORMAL AGREEMENT. IN THIS CONNECTION, THE RECORD DISCLOSES THAT SEVERAL SUPPLEMENTAL AGREEMENTS MODIFYING THE TERMS OF THE ORIGINAL LEASE IN OTHER RESPECTS WERE ENTERED INTO BETWEEN THE LESSOR AND THE GENERAL SERVICES ADMINISTRATION. ALSO, THE AUTHORITY FOR THE PAYMENTS AS MADE OR PROPOSED TO BE MADE, TO AN AGENT OF THE BUILDING MANAGEMENT CORPORATION, THE AGENT OF THE LESSOR, THE CITY OF BIRMINGHAM, IS NOT APPARENT. SEE 31 U.S.C. 492.

ACCORDINGLY, YOU ARE ADVISED THAT THE VOUCHER FOR $50 ACCOMPANYING THE LETTER OF OCTOBER 8 MAY NOT BE CERTIFIED FOR PAYMENT. THE EXCEPTIONS TO VOUCHERS 297352 AND 297353 WILL BE CONTINUED.