B-158452, FEB. 17, 1966, 45 COMP. GEN. 506

B-158452, FEB. 17, 1966, 45 COMP. GEN. 506

LEASES - BUILDING CONSTRUCTION - APPROPRIATION LIMITATIONS - KNOWLEDGE OF GOVERNMENT'S NEEDS KNOWLEDGE OF THE SPACE NEEDS OF A FEDERAL AGENCY BY A COUNTY GOVERNMENT IN THE PLANNING AND CONSTRUCTION, AT ITS OWN RISK, OF A NEW BUILDING, NO COMMITMENT OR PROMISE TO LEASE THE SPACE HAVING BEEN MADE BY THE AGENCY PRIOR TO THE CONSTRUCTION OF THE BUILDING, DOES NOT BRING A PROPOSED LEASE AGREEMENT FOR SPACE IN THE COUNTY BUILDING WITHIN THE LEASE-CONSTRUCTION LIMITATION, WHICH BEGINNING WITH THE FISCAL YEAR 1963 HAS BEEN INCLUDED IN INDEPENDENT OFFICES APPROPRIATION ACTS, REQUIRING THAT A PROSPECTUS FOR THE LEASE CONSTRUCTION OF SPACE TO BE ERECTED BY THE LESSOR FOR A FEDERAL AGENCY AT A COST EXCEEDING $200,000 MUST BE SUBMITTED FOR APPROVAL TO THE APPROPRIATE CONGRESSIONAL COMMITTEE.

TO THE ADMINISTRATOR, FEDERAL AVIATION AGENCY, FEBRUARY 17, 1966:

WE REFER TO YOUR LETTER OF FEBRUARY 2, 1966, REQUESTING OUR DECISON ON THE APPLICABILITY, TO THE SITUATION THEREIN SET FORTH, OF THE LEASE CONSTRUCTION LIMITATION WHICH SINCE FISCAL YEAR 1963 HAS BEEN INCLUDED IN INDEPENDENT OFFICES APPROPRIATION ACTS.

NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE USED FOR THE PAYMENT OF RENTAL ON LEASE AGREEMENTS FOR THE ACCOMMODATION OF FEDERAL AGENCIES IN BUILDINGS AND IMPROVEMENTS WHICH ARE TO BE ERECTED BY THE LESSOR FOR SUCH AGENCIES AT AN ESTIMATED COST OF CONSTRUCTION IN EXCESS OF $200,000 OR FOR THE PAYMENT OF THE SALARY OF ANY PERSON WHO EXECUTES SUCH A LEASE AGREEMENT: PROVIDED, THAT THE FOREGOING PROVISO SHALL NOT BE APPLICABLE TO PROJECTS FOR WHICH A PROSPECTUS FOR THE LEASE CONSTRUCTION OF SPACE HAS BEEN SUBMITTED TO AND APPROVED BY THE APPROPRIATE COMMITTEES OF THE CONGRESS IN THE SAME MANNER AS FOR THE PUBLIC BUILDINGS CONSTRUCTION PROJECTS PURSUANT TO THE PUBLIC BUILDINGS ACT OF 1959. (INDEPENDENT OFFICES APPROPRIATION ACT, 1966, PUBLIC LAW 89-128, 79 STAT. 520, 531.)

THE FEDERAL AVIATION AGENCY CURRENTLY DESIRES TO LEASE SPACE ON THE SECOND FLOOR OF A TWO-STORY BUILDING AT THE ALBANY COUNTY (NEW YORK) AIRPORT. THE BUILDING, COMPLETED NOVEMBER 1964, WAS CONSTRUCTED BY THE COUNTY TO HOUSE, ON THE FIRST FLOOR, ITS FIRE, CRASH, AND MAINTENANCE FACILITIES. THE SECOND FLOOR WAS DESIGNED IN PART TO PROVIDE FOR THE FEDERAL AVIATION AGENCY'S FLIGHT SERVICE STATION, CONSIDERED TO BE INADEQUATELY HOUSED IN THE AIRPORT'S TRAFFIC CONTROL TOWER.

THE SPACE NEEDS OF THE FAA FLIGHT SERVICE STATION HAD BEEN MADE KNOWN TO THE COUNTY WHILE PLANNING ITS NEW BUILDING, BUT IT DOES NOT APPEAR THAT A COMMITMENT OR PROMISE TO LEASE WAS MADE BY FAA REPRESENTATIVES PRIOR TO COMPLETION OF THE COUNTY BUILDING. THE SITUATION IS SUMMED UP IN YOUR LETTER AS FOLLOWS:

* * * IT IS CLEAR THAT THERE WAS NO LEASE NOR HAD THE REPRESENTATIVES OF FAA MADE A BINDING COMMITMENT FOR A LEASE. IN FACT, AS OF THIS DATE THERE IS STILL NO LEASE NOR A BINDING COMMITMENT FOR ONE. ALTHOUGH PRIOR TO COMMENCEMENT OF CONSTRUCTION OF THE BUILDING, THE FAA DID SUBMIT THE GENERAL OUTLINES OF ITS REQUIREMENTS FOR A FSS STATION, IT DID NOT AGREE TO LEASE THE SPACE WHEN THE BUILDING WAS COMPLETED. AT MOST, THE DISCUSSIONS IN 1962-1963 WERE EXPLORATORY. AT THE TIME OF THE EARLY DISCUSSIONS IN 1962 WITH THE COUNTY OF ALBANY, WHEN FAA SUBMITTED ITS GENERAL OUTLINES OF THE FSS, THE COUNTY WAS ADVISED THAT THE FAA COULD NOT MAKE A FIRM COMMITMENT FOR SPACE IN THE BUILDING THE COUNTY WAS CONSIDERING TO ERECT. LATER IN 1963, JUST PRIOR TO THE TIME THE COUNTY ADVERTISED FOR BIDS FOR CONSTRUCTION OF THE BUILDING, THE FAA ADVISED THE COUNTY THAT IF THE COUNTY PROCEEDED TO CONSTRUCT THE BUILDING, IT COULD NOT RELY ON THE FAA LEASING SPACE FOR ITS FSS. IN OTHER WORDS, IF THE COUNTY DID ERECT THE BUILDING CONTAINING SPACE WHICH IN GENERAL MET THE FAA REQUIREMENTS FOR A FSS, IT WOULD DO SO AT ITS OWN RISK. SINCE THERE WAS NO FIRM COMMITMENT FROM THE FAA, THE COUNTY WAS FREE TO RENT THE SPACE TO A THIRD PARTY; IT WAS NOT BOUND TO RENT THE SPACE TO THE FAA.

YOU ARE ADVISED WE CONCUR IN YOUR OPINION THAT ANY AGREEMENT HEREAFTER ENTERED INTO BY THE FAA FOR THE LEASE OF SPACE IN THE NOW COMPLETED ALBANY COUNTY AIRPORT BUILDING WOULD NOT BE, WITH REFERENCE TO THE APPROPRIATION LIMITATION, A LEASE AGREEMENT FOR THE ACCOMMODATION OF A FEDERAL AGENCY IN A BUILDING "TO BE ERECTED BY THE LESSOR" FOR SUCH AGENCY. THERE THUS WOULD BE NO NEED FOR SUBMISSION OF A PROSPECTUS AS CONTEMPLATED BY THE APPROPRIATION LIMITATION IN THE SITUATION OF A LEASE-CONSTRUCTION AGREEMENT.