B-96826, AUGUST 15, 1950, 30 COMP. GEN. 76

B-96826, AUGUST 15, 1950, 30 COMP. GEN. 76

LEASES - REPAIRS AND IMPROVEMENTS - INSTALLATION OF AWNINGS THE INSTALLATION OF AWNINGS AT GOVERNMENT EXPENSE ON A LEASED BUILDING BY MEANS OF BRACKETS AND SCREWS WHICH ARE READILY REMOVABLE WITHOUT INJURING OR DEFACING THE EXTERIOR BUILDING WALL WOULD NOT CONSTITUTE AN ALTERATION OR IMPROVEMENT OF A LEASED BUILDING SO AS TO BE SUBJECT TO THE 25 PERCENT ALTERATION, IMPROVEMENT, ETC., LIMITATION OF SECTION 322 OF THE ECONOMY ACT OF JUNE 30, 1932. 29 COMP. GEN. 63, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, AUGUST 15, 1950:

REFERENCE IS MADE TO LETTER OF JULY 12, 1950, FROM THE ASSISTANT SECRETARY OF AGRICULTURE, CONCERNING THE APPLICABILITY--- TO CERTAIN INSTALLATIONS REFERRED TO THEREIN--- OF THAT PORTION OF DECISION APPEARING IN 29 COMP. GEN. 63, WHEREIN IT WAS STATED, IN EFFECT, THAT, UNDER THE TERMS OF A LEASE WHICH DO NOT REQUIRE THAT AWNINGS BE INSTALLED BY THE LESSOR, SUCH AWNINGS COULD BE INSTALLED AT GOVERNMENT EXPENSE SUBJECT "TO THE LIMITATIONS OF SECTION 322 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 412.'

THE ASSISTANT SECRETARY STATES THAT THE SOIL CONSERVATION SERVICE FINDS IT NECESSARY TO INSTALL AWNINGS ON A LEASED BUILDING AND THAT IT IS PLANNED TO INSTALL SUCH AWNINGS BY MEANS OF BRACKETS AND SCREWS WHICH ARE READILY REMOVABLE WITHOUT DEFACING OR INJURING THE EXTERIOR BUILDING WALL. THE AWNINGS WOULD REMAIN THE PROPERTY OF THE GOVERNMENT AND WOULD BE REMOVABLE AT WILL BY THE GOVERNMENT. ALSO, IT IS STATED THAT, FROM TIME TO TIME, THE DEPARTMENT HAS NEED TO MAKE LIKE INSTALLATIONS OF A TEMPORARY NATURE IN RENTED BUILDINGS BUT WOULD BE UNABLE TO DO SO IN CERTAIN INSTANCES IF SUCH INSTALLATIONS, AS CONSTRUED IN THE REFERRED-TO DECISION, ARE SUBJECT TO THE 25 PERCENT LIMITATION CONTAINED IN SECTION 322 OF THE ECONOMY ACT, SUPRA.

IN ACCORDANCE WITH THE PRINCIPLES ESTABLISHED IN 20 COMP. GEN. 105, THIS OFFICE GENERALLY HAS RECOGNIZED THAT FIXTURES OR EQUIPMENT AS TO WHICH THE TENANT RETAINS TITLE AND THE RIGHT OF REMOVAL WITHOUT ANY SPECIAL AGREEMENT WITH THE LESSOR, AND WHICH ARE ATTACHED IN SUCH A MANNER AS TO BE READILY REMOVABLE WITHOUT INJURING OR DEFACING THE BUILDING, AND NOT INTENDED IN ANY EVENT TO BECOME A PART OF THE BUILDING, DO NOT FALL WITHIN THE PURVIEW OF THE 25 PERCENT LIMITATION OF THE ECONOMY ACT.

IT WAS NOT THE INTENT OF THE DECISION IN 29 COMP. GEN. 63 TO MODIFY IN ANY WAY THE PRINCIPLES ESTABLISHED BY SUCH EARLIER DECISION. THE REFERRED -TO STATEMENT APPEARING THEREIN WAS MADE IN REPLY TO THE SPECIFIC QUESTION PRESENTED BY THE POSTMASTER GENERAL, AS TO "WHETHER THERE WOULD BE ANY OBJECTION TO THE PURCHASE AND INSTALLATION OF THE AWNINGS AT GOVERNMENT EXPENSE, THROUGH CONTRACT OR OTHERWISE, AS PROVIDED IN SECTION 322 OF THE ECONOMY ACT OF JUNE 30, 1932.' IN THE ABSENCE OF ANY INFORMATION CONCERNING THE MANNER IN WHICH THE AWNINGS WERE INTENDED TO BE INSTALLED, AND BECAUSE OF SUCH SPECIFIC REFERENCE TO THE SAID SECTION 322, IT WAS ASSUMED THAT THE AWNINGS INVOLVED PERHAPS WERE INTENDED TO BE INSTALLED IN SUCH A MANNER AS TO CONSTITUTE AN IMPROVEMENT OF A LEASED BUILDING WITHIN THE MEANING OF THE STATUTORY 25 PERCENT LIMITATION.

HOWEVER, UNDER THE CIRCUMSTANCES DESCRIBED IN THE ASSISTANT SECRETARY'S LETTER, IT IS CLEAR THAT THE INSTALLATION OF THE AWNINGS REFERRED TO THEREIN WOULD NOT CONSTITUTE AN ALTERATION OR AN IMPROVEMENT OF A LEASED BUILDING AND, CONSEQUENTLY, IF REQUIRED TO BE INSTALLED AT GOVERNMENT EXPENSE, WOULD NOT BE SUBJECT TO SUCH LIMITATION. SEE 20 COMP. GEN. 105; B-50694, AUGUST 2, 1945, AND B 71640, DECEMBER 30, 1947. ACCORDINGLY, YOU ARE ADVISED THAT THE PORTION OF DECISION APPEARING IN 29 COMP. GEN. 63 WHICH MAY BE CONSTRUED AS INDICATING A CONCLUSION DIFFERENT FROM THAT REACHED HEREIN, IS NOT FOR APPLICATION IN SITUATIONS WHERE THE FACTS ARE AS DESCRIBED IN THE ASSISTANT SECRETARY'S LETTER.