B-72410, JANUARY 21, 1948, 27 COMP. GEN. 389

LEASES - REPAIRS AND IMPROVEMENT - LESSOR'S OBLIGATION TO PAINT THE PAINTING OF THE INTERIOR WALLS OF LEASED PREMISES FOR THE PURPOSE OF CREATING SATISFACTORY LIGHTING CONDITIONS NEED NOT BE REGARDED AS AN OBLIGATION OF THE LESSOR UNDER THE LEASE TO MAINTAIN THE PREMISES IN GOOD REPAIR AND TENANTABLE CONDITION--- THERE BEING NO REQUIREMENT IN THE LEASE THAT THE LESSOR FURNISH SPECIAL LIGHTING FACILITIES OR IMPROVE THE LIGHTING FACILITIES ON THE PREMISES--- AND, THEREFORE, THE COST OF FURNISHING THE NECESSARY PAINT PROPERLY MAY BE CONSIDERED AS CHARGEABLE TO THE GOVERNMENT.

ACTING COMPTROLLER GENERAL YATES TO L. E. LYMAN, DEPARTMENT OF AGRICULTURE, JANUARY 21, 1948:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 22, 1947, TRANSMITTING A VOUCHER, TOGETHER WITH RELATED PAPERS, STATED IN FAVOR OF THE ERICKSON PAINT STORE, HOLDREGE, NEBRASKA, IN THE AMOUNT OF $13.96 FOR FOUR GALLONS OF PAINT FURNISHED THE SOIL CONSERVATION SERVICE ON DECEMBER 4, 1947, AND REQUESTING A DECISION AS TO WHETHER THE VOUCHER PROPERLY MAY BE CERTIFIED FOR PAYMENT.

IT APPEARS FROM YOUR LETTER THAT THE PAINT--- COMPRISED OF ONE GALLON GREEN AND THREE GALLONS CREAM--- WAS PURCHASED FROM THE ERICKSON PAINT STORE UNDER PURCHASE ORDER NO. 125-48 NB-S-1 TO BE USED FOR PAINTING TWO ROOMS IN THE BASEMENT OF THE MUNICIPAL BUILDING IN HOLDREGE, WHICH TWO ROOMS, TOGETHER WITH CERTAIN SPACE IN A ROOM ON THE FIRST FLOOR OF THE BUILDING, WERE THEN OCCUPIED BY THE GOVERNMENT AS LESSEE UNDER LEAVE NO. ASC ( NB-O/-6015, DATED JANUARY 21, 1946.

UNDER THE LEASE REFERRED TO, THE CITY OF HOLDREGE LEASED SUCH SPACE TO THE GOVERNMENT FOR A TERM BEGINNING JANUARY 2, 1946, AND ENDING JUNE 30, 1946, AT A RENTAL OF $16 A MONTH, WITH AN OPTION TO THE GOVERNMENT TO RENEW IT ANNUALLY, NOT, HOWEVER, BEYOND JUNE 31, 1951, AT A RENTAL OF $18 A MONTH. THE LEASE PROVIDED THAT THE SPACE WAS LEASED FOR USE AS OFFICE QUARTERS. THE LEASE FURTHER PROVIDED THAT THE LESSOR WOULD, AS PART OF THE RENTAL CONSIDERATION, FURNISH HEAT, WATER AND ELECTRICITY FOR THE LEASED PREMISES. PARAGRAPH 8 GIVES THE GOVERNMENT THE RIGHT TO MAKE ALTERATIONS, ATTACH FIXTURES AND ERECT ADDITIONS, STRUCTURES OR SIGNS UPON THE CONDITIONS THERE STATED. PARAGRAPH 9 PROVIDES THAT THE LESSOR SHALL, UNLESS SPECIFIED TO THE CONTRARY, MAINTAIN THE LEASED PREMISES IN GOOD REPAIR AND TENANTABLE CONDITION DURING THE CONTINUANCE OF THE LEASE, EXCEPT IN THE CASE OF DAMAGE ARISING FROM THE ACT OF NEGLIGENCE OF THE GOVERNMENT'S AGENTS OR EMPLOYEES. IT APPEARS FROM YOUR LETTER THAT THE LEASE HAS BEEN EXTENDED TO JUNE 30, 1948.

IT IS STATED IN A MEMORANDUM OF THE ACTING STATE CONSERVATIONIST, APPROVED BY THE CHIEF, REGIONAL ADMINISTRATIVE SERVICES DIVISION OF THE SOIL CONSERVATION SERVICE, THAT THE WALLS OF THE BASEMENT SPACE OCCUPIED BY THE SOIL CONSERVATION SERVICE UNDER THE LEASE ARE OF POURED REINFORCED CONCRETE CONSTRUCTION HAVING A GRAY CEMENT FINISH; THAT THE NATURAL AND ARTIFICIAL LIGHTING IN THE PREMISES WAS NOT ADEQUATE TO MEET THE REQUIRED USAGE OF THE SPACE FOR OFFICE AND DRAFTING PURPOSES AND THAT, THEREFORE, PAINTING OF THE WALLS A LIGHT COLOR WAS CONSIDERED NECESSARY TO CREATE SATISFACTORY LIGHTING CONDITIONS. IT IS FURTHER STATED IN SAID MEMORANDUM THAT THE PAINTING OF THE WALLS WAS DONE TO ONLY ONE BASEMENT ROOM AND THAT THE GALLON OF GREEN PAINT WAS PURCHASED FOR PAINTING THE BORDER. YOUR LETTER INDICATES THAT THE PAINT IS TO BE USED FOR PAINTING THE OTHER LEASED ROOM IN THE BASEMENT.

YOU EXPRESS THE VIEW THAT THE PAINTING OF THE CONCRETE WALLS MIGHT NOT BE CONSIDERED AS MAINTAINING THE EXISTING STATE OF THE WALLS UNDER THE DEFINITION OF "MAINTAIN" IN THE DECISION REPORTED IN 21 COMP. GEN. 90. HOWEVER, YOU APPEAR TO BE IN DOUBT THAT SUCH IS THE CASE, SINCE YOU STATE FURTHER THAT YOU ARE IN DOUBT AS TO WHETHER PAYMENT OF THE VOUCHER IS PROHIBITED BY THE PROVISIONS OF SECTION 9 OF THE LEASE WHICH REQUIRES THE LESSOR TO MAINTAIN THE PREMISES IN GOOD REPAIR AND TENANTABLE CONDITION, OR WHETHER, IN VIEW OF THE PURPOSE FOR WHICH THE PAINT WAS TO BE USED, ITS PURCHASE WAS AUTHORIZED BY 47 STAT. 412--- BY WHICH YOU HAVE REFERENCE TO SECTION 322 OF THE ECONOMY ACT OF JUNE 30, 1932--- WHICH PROVIDES, AMONG OTHER THINGS, THAT NO APPROPRIATION SHALL BE OBLIGATED OR EXPENDED FOR ALTERATIONS, IMPROVEMENTS AND REPAIRS OF RENTED PREMISES IN EXCESS OF 25 PERCENTUM OF THE AMOUNT OF THE RENT FOR THE FIRST YEAR OF THE TERM OR FOR THE RENTAL TERM IF LESS THAN ONE YEAR.

THE REFERRED-TO PROVISIONS OF SAID SECTION 322 DO NOT CONSTITUTE AN AFFIRMATIVE AUTHORIZATION IN ALL CASES TO MAKE ALTERATIONS, REPAIRS AND IMPROVEMENTS TO LEASED PROPERTY AT THE EXPENSE OF THE GOVERNMENT. INSTEAD, THE PROVISIONS MERELY IMPOSE A LIMITATION ON THE AMOUNT THAT MAY BE EXPENDED FOR SUCH PURPOSES, IF OTHERWISE PROPER. WHERE A LESSOR, EITHER UNDER THE EXPRESS TERMS OF A LEASE OR BY REASON OF HIS POSITION AS LESSOR, IS OBLIGATED TO MAKE ALTERATIONS, IMPROVEMENTS AND REPAIRS, THE PROVISIONS OF SUCH SECTION WOULD NOT TRANSFER THE OBLIGATION TO THE GOVERNMENT.

THUS, IF UNDER THE TERMS OF THE LEASE HERE INVOLVED THE OBLIGATION TO PAINT THE WALLS A LIGHTER COLOR THAN THEY WERE WAS ON THE LESSOR, THE PROVISIONS OF THE SECTION WOULD NOT RELIEVE IT--- THE LESSOR--- FROM SUCH OBLIGATION. HOWEVER, ON THE FACTS AS REPORTED, IT IS AT BEST OPEN TO DOUBT THAT THE LESSOR WAS REQUIRED BY THE TERMS OF THE LEASE IN THIS CASE TO PAINT THE WALLS A LIGHTER COLOR FOR THE MERE PURPOSE OF MAKING A BETTER LIGHT IN THE SPACE, THERE BEING NO REQUIREMENT IN THE LEASE THAT THE LESSOR FURNISH SPECIAL LIGHTING FACILITIES OR IMPROVE THE LIGHTING FACILITIES ON THE PREMISES. FURTHERMORE, THE PAINT WAS ORDERED FROM THE ERICKSON PAINT STORE BY THE GOVERNMENT AND WAS FURNISHED TO THE GOVERNMENT BY THAT CONCERN IN GOOD FAITH.

ACCORDINGLY, THE VOUCHER, WHICH, TOGETHER WITH RELATED PAPERS, IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT TO THE PAYEE NAMED THEREON, IF OTHERWISE FREE FROM OBJECTION.