B-138598, MAY 13, 1959, 38 COMP. GEN. 758

B-138598, MAY 13, 1959, 38 COMP. GEN. 758

APPROPRIATIONS - GENERAL SERVICES ADMINISTRATION - SERVICES FOR OTHER AGENCIES - BUILDING REPAIRS RENOVATIONS TO MAKE A BUILDING SUITABLE FOR OCCUPANCY BY THE FEDERAL AVIATION AGENCY CONSTITUTE ,IMPROVEMENTS" WITHIN THE MEANING OF SECTION 3733, REVISED STATUTES, 41 U.S.C. 12, WHICH REQUIRES SPECIFIC STATUTORY AUTHORITY FOR THE CONSTRUCTION, REPAIR AND IMPROVEMENT OF PUBLIC BUILDINGS, AND IN THE ABSENCE OF SUCH SPECIFIC AUTHORITY IN THE AGENCY'S APPROPRIATIONS, GENERAL APPROPRIATIONS FOR NECESSARY EXPENSES MAY NOT BE USED TO REIMBURSE THE GENERAL SERVICES ADMINISTRATION FOR THE RENOVATION WORK. ALTHOUGH APPROPRIATIONS MADE AVAILABLE TO AGENCIES MAY BE USED FOR NECESSARY EXPENSES, THE TERM ,NECESSARY EXPENSES" REFERS TO CURRENT OR RUNNING EXPENSES OF A MISCELLANEOUS CHARACTER INCIDENT TO AND DIRECTLY RELATED TO THE AGENCY'S PARTICULAR FUNCTIONS AND DOES NOT INCLUDE EXPENSES FOR THE CONSTRUCTION AND IMPROVEMENT OF PUBLIC BUILDINGS FOR WHICH SPECIFIC STATUTORY AUTHORITY IS REQUIRED. THE AVAILABILITY OF AN AGENCY'S APPROPRIATION FOR THE COST OF SPECIAL SERVICES INCIDENT TO THE SPACE NEEDS OF THE AGENCY WHICH DO NOT COME WITHIN THE PURVIEW OF PUBLIC BUILDING IMPROVEMENTS WITHIN THE MEANING OF SECTION 3733, REVISED STATUTES, 41 U.S.C. 12, OR WITHIN THE PURVIEW OF THE NORMAL SPACE NEEDS REQUIRED TO BE FURNISHED WITHOUT REIMBURSEMENT BY THE GENERAL SERVICES ADMINISTRATION MUST BE DETERMINED ON THE BASIS OF THE AGENCY'S APPROPRIATION, THE SPECIFIC NATURE OF THE OPERATIONS OF THE OCCUPANT AGENCY, AND THE PECULIAR NEEDS REQUIRED TO CARRY OUT THE STATUTORY FUNCTIONS IMPOSED UPON THE AGENCY. IN VIEW OF THE LANGUAGE IN THE APPROPRIATION FOR GENERAL SERVICES ADMINISTRATION FOR THE REPAIR AND IMPROVEMENT OF FEDERALLY OWNED BUILDINGS, THAT IS,"FOR EXPENSES NECESSARY FOR THE REPAIR, ALTERATION, PRESERVATION, RENOVATION, IMPROVEMENT, EXTENSION, EQUIPMENT, AND DEMOLITION OF FEDERALLY OWNED BUILDINGS," ALL WORK ENCOMPASSED IN THOSE TERMS, EXCEPT WORK INCIDENT TO SPECIALIZED USES PECULIAR TO THE NEEDS OF THE OCCUPYING AGENCY, MUST BE PERFORMED BY THE GENERAL SERVICES ADMINISTRATION AND THE COSTS CHARGED TO THE REPAIR AND IMPROVEMENT APPROPRIATION PROVIDED FOR THE GENERAL SERVICES ADMINISTRATION, BUT IF THE APPROPRIATION OF THE OCCUPANT AGENCY SPECIFICALLY AUTHORIZES TENANT CHANGES THEN IT WOULD BE AVAILABLE UNDER THE RULE OF STATUTORY CONSTRUCTION THAT A SPECIFIC APPROPRIATION FOR A PARTICULAR OBJECT PRECLUDES THE USE OF A MORE GENERAL APPROPRIATION. IN VIEW OF THE LONG PREVAILING PRACTICE OF THE GENERAL SERVICES ADMINISTRATION OF PERFORMING SPECIAL SERVICES INCIDENT TO THE OCCUPANCY OF FEDERAL BUILDINGS ON A REIMBURSABLE BASIS EVEN THOUGH THE OCCUPANT AGENCY DID NOT HAVE SPECIFIC APPROPRIATION AUTHORITY FOR SUCH SERVICES, NO OBJECTION WILL BE MADE TO THE CONTINUANCE OF THE PRACTICE PROVIDED THAT THE MATTER IS PROMPTLY AND FULLY DISCLOSED TO THE CONGRESS.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, MAY 13, 1959:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 3, 1959, REQUESTING RECONSIDERATION OF THE CONCLUSIONS IN OUR LETTER OF MARCH 4, 1959, 38 COMP. GEN. 588, TO THE CHAIRMAN OF THE SENATE COMMITTEE ON GOVERNMENT OPERATIONS, IN ANSWER TO CERTAIN QUESTIONS SUBMITTED BY HIM CONCERNING THE AVAILABILITY OF FUNDS OF THE FEDERAL AVIATION AGENCY, THE CIVIL AERONAUTICS ADMINISTRATION, AND THE AIRWAYS MODERNIZATION BOARD, FOR THE RENOVATION OF THE OLD EMERGENCY HOSPITAL, 1711 NEW YORK AVENUE FOR OCCUPANCY BY THE FEDERAL AVIATION AGENCY.

IN ANSWERING THE QUESTIONS SUBMITTED WE CONCLUDED THAT THE PROPOSED ALTERATIONS GENERALLY MUST BE REGARDED AS NORMAL OFFICE SPACE ALTERATIONS INCIDENT TO FURNISHING OF SUITABLE QUARTERS TO THE FEDERAL AVIATION AGENCY, AS DISTINGUISHED FROM ALTERATIONS FOR SPECIALIZED REQUIREMENTS OF THE AGENCY, AND THAT THE RENOVATION JOB COULD NOT, IN THE ABSENCE OF SPECIFIC APPROPRIATIONS THEREFOR TO THE FAA OR ITS PREDECESSORS, BE REGARDED AS SPECIAL SERVICES FOR PERFORMANCE BY GSA ON A REIMBURSABLE BASIS UNDER SECTION 210 (A) (6) AND 210 (F) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 40 U.S.C. 490 (A) (6) AND (F), BUT RATHER MUST BE REGARDED AS A SERVICE TO BE PERFORMED BY GSA IN THE FURNISHING OF SUITABLE ACCOMMODATIONS FOR THE AGENCY AS REQUIRED BY SECTION 303 (C) OF THE FEDERAL AVIATION ACT OF 1958, 72 STAT. 748, 49 U.S.C. 1344 (C), AND TO BE CHARGED TO GSA APPROPRIATIONS EXPRESSLY MADE AVAILABLE FOR REPAIR, ALTERATION AND IMPROVEMENT OF FEDERALLY OWNED BUILDINGS.

FURTHER WE CONCLUDED THAT THE RENOVATION OF THIS BUILDING TO MAKE IT SUITABLE FOR OFFICE SPACE FOR THE AGENCY, EVEN IF IT COULD BE CONSIDERED AS A SPECIAL SERVICE, MUST BE REGARDED AS A "PUBLIC IMPROVEMENT" WITHIN THE MEANING OF SECTON 3733, REVISED STATUTES, 41 U.S.C. 12, AND THAT SINCE THERE IS NO SPECIFIC AUTHORITY FOR PUBLIC IMPROVEMENTS IN THE AGENCY'S APPROPRIATIONS, SUCH APPROPRIATIONS ARE NOT AVAILABLE FOR REIMBURSING GSA FOR THE PROPOSED RENOVATION OF THE BUILDING UNDER JOB ORDER NO. 13442.

IN JUSTIFICATION OF YOUR VIEW THAT AGENCY APPROPRIATIONS PROVIDING GENERALLY "FOR ALL NECESSARY EXPENSES" ARE LEGALLY AVAILABLE FOR NECESSARY TENANT CHANGES YOU QUOTE A PORTION OF OUR DECISION IN 38 COMP. GEN. 193, CONCERNING REIMBURSABLE WORK UNDER YOUR STANDARD PRACTICES. YOU SAY, IN EFFECT, THAT SINCE THIS DECISION WAS RENDERED YOU HAVE INTERPRETED THE PHRASE IN THE QUOTATION,"GENERALLY THE APPROPRIATIONS OF THE AGENCY REQUESTING THE SERVICES MUST BE AVAILABLE FOR SUCH SPECIAL SERVICES AND MUST BE USED THEREFOR," AS A STATEMENT INDICATING THAT THE GSA APPROPRIATIONS ARE NOT NORMALLY AVAILABLE FOR THESE ITEMS. YOU STATE, HOWEVER, THAT THE CONCLUSIONS IN OUR LETTER OF MARCH 4, 1959, HAVE PLACED IN DOUBT YOUR WHOLE REIMBURSABLE WORK PROGRAM AND THAT UPON THE BASIS OF SUCH CONCLUSIONS, IT APPEARS THAT FEW, IF ANY, TENANT CHANGES, ALTERATIONS OR IMPROVEMENTS MADE AT THE REQUEST OF TENANT AGENCIES FOR THEIR "CONVENIENCE, OR SPECIALIZED PURPOSES" WOULD BE OTHER THAN "PUBLIC IMPROVEMENTS.'

YOU SAY THAT YOU HAVE BEEN AWARE OF THE RULINGS IN THE DECISIONS CITED ON PAGE 6 OF OUR LETTER OF MARCH 4, 1959, IN SUPPORT OF OUR VIEW THAT THE RENOVATION WORK COVERED BY JOB ORDER NO. 13442 GENERALLY CONSTITUTED A "PUBLIC IMPROVEMENT" WITHIN THE MEANING OF THAT TERM AS USED IN 41 U.S.C. 12. YOU STATE, HOWEVER, THAT THE WORK INVOLVED IN THOSE CASES HAS BEEN CONSIDERED AS APPLICABLE TO IMPROVEMENTS TO THE INVOLVED BUILDINGS OR STRUCTURES; THAT OVER A LONG PERIOD OF TIME YOU HAVE CONSIDERED THE PROJECTS THERE INVOLVED AS INVOLVING RESTORATION OR UPGRADING OF THE INVOLVED STRUCTURES; AND THAT YOU HAVE DISTINGUISHED THESE PROJECTS FROM WHAT YOU TERM "TENANT CHANGES OR ALTERATIONS," FOLLOWING GENERALLY ACCEPTED COMMERCIAL PRACTICES. IN THE LIGHT OF THE FOREGOING YOU STATE THAT OVER THE YEARS THE AGENCIES HAVE COME TO RECOGNIZE THAT THIS WORK IS REIMBURSABLE BY THE TENANT TO THE OWNER, JUST AS IN COMMERCIAL PRACTICE; THAT THESE CHANGES ARE BROUGHT ABOUT TO ADJUST THE SPACE TO THE FUNCTIONS OF THE OCCUPANT AGENCY; THAT THEY NOT ONLY ARE NOT CONSIDERED IMPROVEMENTS BUT IN MOST INSTANCES ARE ACTUALLY A DETRIMENT, IN THAT THE REASSIGNMENT OF THE SPACE TO ANOTHER AGENCY USUALLY REQUIRES REMOVAL OF THE CHANGES PREVIOUSLY MADE OR FURTHER CHANGES; AND THAT WHILE THE VALUE OF THE BUILDING CAN BE RESTORED OR IMPROVED GENERALLY BY IMPROVEMENTS, TENANT CHANGES PRACTICALLY HAVE NO EFFECT ON THE VALUE. YOU CONTEND THAT MOST OF THE WORK INVOLVED IN TENANT CHANGES NATURALLY IS INCIDENT TO MOVING, RELOCATING, OR REMOVING PARTITIONS AND RELATED WORK, AND THAT THIS IN TURN WILL INVOLVE WORK OVER AND ABOVE NORMAL, SUCH AS LIGHT CHANGES, SOUNDPROOFING, SHIFTING ELECTRICAL OUTLETS, RELOCATING DOORS, DUCTS, PATCHING, AND PAINTING AND OTHER SIMILAR WORK INCIDENTAL TO TENANT CHANGES.

IN CONNECTION WITH THE RENOVATION WORK CALLED FOR BY JOB ORDER NO. 13442 YOU LIST SEVEN ITEMS WHICH AS A MINIMUM, YOU BELIEVE TO BE OVER AND ABOVE WHAT GSA NORMALLY FURNISHES OR BUDGETS FOR, AND WHICH FIT THE SPECIAL REQUIREMENTS OF THE FAA AS DISTINGUISHED FROM OTHER AGENCIES, AND ARE THEREFORE REIMBURSABLE BY THAT AGENCY. ALSO, AS TYPICAL EXAMPLES OF PROJECTS CONSIDERED AS REIMBURSABLE, YOU ENCLOSE COPIES OF PENDING JOB ORDERS AWAITING FURTHER ACTION IN VARIOUS AREAS OF THE WASHINGTON REGIONAL OFFICE, TOGETHER WITH TWO SAMPLES OF PROPOSED JOB ORDERS WHICH WOULD BE PERFORMED AT THE REQUEST OF THE AGENCY AND ALSO CONSIDERED AS REIMBURSABLE.

IN CONCLUSION YOU REFER TO THE MAGNITUDE OF YOUR REIMBURSABLE WORK PROGRAM AND STATE THAT YOUR WASHINGTON REGIONAL OFFICE ALONE EXPENDS APPROXIMATELY $10,000,000 A YEAR IN THIS TYPE OF WORK EITHER BY CONTRACT OR THROUGH A PERMANENT FORCE ACCOUNT GROUP OF ABOUT 600 EMPLOYEES; THAT PENDING FURTHER CLARIFICATION, WORK UNDER REIMBURSABLE JOB ORDERS HAS COME TO A VIRTUAL STANDSTILL; AND THAT GSA IS IN NO POSITION APPROPRIATION-WISE TO ABSORB EITHER NOW OR IN FISCAL YEAR 1960, TENANT CHANGES, ALTERATIONS AND IMPROVEMENTS SUCH AS THOSE INDICATED BY THE EXAMPLES FORWARDED WITH YOUR LETTER WHICH HERETOFORE HAVE BEEN CONSIDERED BY GSA AND YOUR TENANT AGENCIES AS REIMBURSABLE UNDER THE STANDARD PRACTICES.

AT THE OUTSET IT SHOULD BE POINTED OUT THAT SINCE IT WAS UNDERSTOOD THAT THE RENOVATION WORK PROVIDED FOR UNDER JOB ORDER NO. 13442, AS AMENDED, WAS INTENDED TO BE PERFORMED UNDER A SINGLE LUMP-SUM CONTRACT, THE CONCLUSIONS IN OUR LETTER OF MARCH 4, 1959, WERE BASED UPON THE WORK IN ITS ENTIRETY AS SET FORTH IN THE SPECIFICATIONS ISSUED PURSUANT TO THE JOB ORDER AND NOT ON AN ITEM BY ITEM BASIS. ACCORDINGLY, AND HAVING REGARD FOR THE NATURE OF THE OVERALL CONSTRUCTION ALTERATIONS AS OUTLINED IN THE SPECIFICATIONS, IT WAS CONCLUDED THAT THE WORK CALLED FOR, AS A WHOLE, CONSTITUTED A PUBLIC IMPROVEMENT WITHIN THE MEANING OF SECTION 3733, REVISED STATUTES, 41 U.S.C. 12, AND THAT SINCE THERE APPEARED TO BE NO SPECIFIC AUTHORITY FOR PUBLIC IMPROVEMENTS IN THE AGENCY'S APPROPRIATIONS, SUCH APPROPRIATIONS ARE NOT AVAILABLE FOR PERFORMANCE OF THE PROPOSED RENOVATION WORK OR FOR REIMBURSEMENT TO GSA THEREFOR. ALSO, IT SHOULD BE POINTED OUT AGAIN THAT SECTION 303 (C) OF THE STATUTE ESTABLISHING THE FEDERAL AVIATION AGENCY ( FEDERAL AVIATION ACT OF 1958, 72 STAT. 748) SPECIFICALLY PROVIDES THAT SUITABLE ACCOMMODATIONS FOR THE AGENCY SHALL BE PROVIDED BY GSA, UNLESS YOU SHOULD DETERMINE PURSUANT TO SECTION 1 (D) OF REORGANIZATION PLAN NO. 18 OF 1950, (64 STAT. 1270; 5 U.S.C. 133Z-15 NOTE) THAT THE SPACE TO BE ACQUIRED IS TO BE UTILIZED FOR THE SPECIAL PURPOSES OF THE AGENCY AND IS NOT GENERALLY SUITABLE FOR THE USE OF OTHER AGENCIES.

SECTION 3733, REVISED STATUTES, 41 U.S.C. 12 PROVIDES:

NO CONTRACT SHALL BE ENTERED INTO FOR THE ERECTION, REPAIR, OR FURNISHING OF ANY PUBLIC BUILDING, OR FOR ANY PUBLIC IMPROVEMENT WHICH SHALL BIND THE GOVERNMENT TO PAY A LARGER SUM OF MONEY THAN THE AMOUNT IN THE TREASURY APPROPRIATED FOR THE SPECIFIC PURPOSE.

THIS STATUTORY PROVISION IS DERIVED FROM SECTION 3 OF THE ACT OF JULY 25, 1968, 15 STAT. 177, AN ACT MAKING APPROPRIATIONS TO SUPPLY DEFICIENCIES IN THE APPROPRIATIONS FOR THE SERVICE OF THE GOVERNMENT FOR THE FISCAL YEAR ENDING JUNE 30, 1868, AND OTHER PURPOSES. MANIFESTLY, THE OBJECT OF THE STATUTE WAS TO PREVENT EXECUTIVE OFFICERS FROM INVOLVING THE GOVERNMENT IN EXPENDITURES AND LIABILITIES BEYOND THOSE CONTEMPLATED BY THE CONGRESS. 21 OP. ATTY. GEN. 244, 248. THE QUESTION AS TO WHAT CONSTITUTES A PUBLIC IMPROVEMENT WITHIN THE MEANING OF THE STATUTE HAS BEEN THE SUBJECT OF NUMEROUS DECISIONS OF THE ACCOUNTING OFFICERS, SEVERAL OF WHICH WERE CITED IN OUR LETTER OF MARCH 4, 1959, TO THE CHAIRMAN OF THE SENATE COMMITTEE ON GOVERNMENT OPERATIONS. IT IS APPARENT FROM YOUR LETTER THAT YOU DO NOT REGARD THE INVOLVED RENOVATION WORK AS A PUBLIC IMPROVEMENT WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 3733, REVISED STATUTES, NOTWITHSTANDING THE NATURE OF THE WORK AS SHOWN BY THE SPECIFICATIONS FOR PROJECT. ON THE CONTRARY, IT APPEARS TO BE YOUR VIEW THAT THE WORK IS NOTHING MORE THAN "TENANT CHANGES" FOR THE SPECIALIZED REQUIREMENTS OF THE AGENCY AND, THEREFORE, PROPERLY MAY BE REGARDED AS REIMBURSABLE PURSUANT TO YOUR " STANDARD PRACTICES IN THE MANAGEMENT AND SERVICING OF BUILDINGS.' WE DO NOT AGREE WITH THESE VIEWS BUT FEEL THAT THE WORK INVOLVED COMES GENERALLY WITHIN THE STATUTORY PROHIBITION. THAT THE CONGRESS HAD CONSTRUCTION ALTERATIONS SUCH AS DESCRIBED IN THE SPECIFICATIONS IN MIND AT THE TIME OF ENACTMENT OF LEGISLATION WHICH SUBSEQUENTLY BECAME SECTION 3733 REVISED STATUTES IS INDICATED BY THE STATEMENT OF SENATOR HOWE APPEARING ON PAGE 4152 OF THE CONGRESSIONAL GLOBE OF JULY 17, 1868, AS FOLLOWS:

MR. PRESIDENT, I HAVE NOT HEARD ANY BETTER REMEDY THAN THIS SUGGESTED, AND I AM UNWILLING TO BELIEVE THAT SOME REMEDY MAY NOT BE DEVISED. THE ABUSES OF THE PRESENT MODE OF DOING BUSINESS ARE MANIFEST. THE SENATOR FROM MAINE ( MR. MORRILL) MENTIONED ONE PATENT UPON THE FACE OF THIS BILL. YOU HAD A HOSPITAL FOR THE CARE OF THE SAILORS IN THE MERCHANT SERVICE OF THE UNITED STATES AT CHELSEA. I NEVER SAW IT; BUT I AM TOLD IT WAS ONE OF THE FINEST BUILDINGS IN THE COUNTRY, ABUNDANTLY ADEQUATE FOR EVERY PURPOSE. WE FIND HERE IN THIS BILL AN APPROPRIATION OF $45,000 FOR IMPROVEMENTS, FOR REMODELING THAT MARINE HOSPITAL. I TRIED TO CONVINCE THE SENATE THE OTHER DAY THAT YOU OUGHT NEVER TO HAVE INVESTED A CENT IN MARINE HOSPITALS ANYWHERE. YOU DO NOT DO IT IN THOSE CITIES WHERE THERE IS THE LARGEST COMMERCE. THE SECRETARY SAYS IT IS UNNECESSARY; BUT THIS WAS DONE; THIS BUILDING WAS ERECTED. THE OFFICERS IN CHARGE, IT SEEMS, THOUGHT THEY COULD MAKE IT BETTER. WE ARE INFORMED BY THE ARCHITECT THAT THEY APPLIED FOR PERMISSION TO MAKE IT BETTER, TO REMODEL IT; HE TOLD THEM NO; THERE WAS NO APPROPRIATION; THEY APPLIED AGAIN, HE TOLD THEM NO. HE STEADFASTLY RESISTED THE ATTEMPT TO REMODEL IT, BUT IN DEFIANCE OF HIS RESISTANCE THEY WENT ON AND MADE A CONTRACT, AND THE WORK HAS BEEN DONE. CONGRESS NEVER HAS BEEN CONSULTED, NEVER HAS ASSENTED; THE ARCHITECT WAS CONSULTED AND REFUSED, BUT THE WORK HAS BEEN DONE; AND HERE ARE POOR MECHANICS CLAMORING AT THE DOORS OF CONGRESS TO BE PAID. WHAT CAN YOU DO? YOU CANNOT VERY WELL REFUSE TO PAY THESE MEN; HERE IS THE APPROPRIATION TO PAY THEM; THEY HAVE DONE THE WORK; THEY HAVE DONE IT ON YOUR BUILDING; AND SO I SUPPOSE WE HAVE GOT TO PAY THEM; BUT IT WAS THE MOST WANTON DISREGARD OF LAW AND OF OFFICIAL DUTY THAT I CAN CONCEIVE OF. IF YOU TOLERATE THIS YOUR TREASURY STANDS WIDE OPEN TO THE DEMAND OF EVERY EMPLOYEE YOU HAVE. HE CAN MAKE HIS CONTRACTS, NO MATTER WHETHER THEY MINISTER TO THE PUBLIC INTEREST OR NOT; HE MAKES HIS CONTRACTS, GOES ON AND EXECUTES THEM, AND YOU COME IN AND PAY THEM TO SAVE INNOCENT MEN FROM THE CONSEQUENCES OF HIS WRONG. ( ITALICS SUPPLIED.)

WHILE IT IS TRUE THAT THE APPROPRIATIONS MADE AVAILABLE TO THE AGENCY PROVIDE FOR "NECESSARY EXPENSES," THAT PHRASE AND SIMILAR PHRASES HAVE BEEN CONSTRUED AS REFERRING TO CURRENT OR RUNNING EXPENSES OF A MISCELLANEOUS CHARACTER ARISING OUT OF AND DIRECTLY RELATED TO THE AGENCY'S WORK, AND NOT AS BROAD ENOUGH TO INCLUDE THE COST OF CONSTRUCTION, NOR DEFINITE ENOUGH TO COMPLY WITH THE REQUIREMENTS OF SECTION 3733, REVISED STATUTES, 4 COMP. GEN. 1063. NOR DO WE FIND ANY OTHER LANGUAGE IN THE AGENCY'S APPROPRIATION EITHER IN SPECIFIC TERMS OR BY NECESSARY IMPLICATION WHICH WOULD AUTHORIZE A CHARGE THERETO FOR IMPROVEMENTS TO PUBLIC BUILDINGS. NEITHER DO WE FIND ANYTHING IN THE LEGISLATIVE HISTORY INDICATING THAT THE CONGRESS IN ENACTING SECTIONS 210 (A) (6) AND 210 (F) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT, AS AMENDED, INTENDED TO NULLIFY THE PROVISIONS OF SECTION 3733, REVISED STATUTES. ACCORDINGLY, IN OUR VIEW NOTHING IN YOUR LETTER REQUIRES ANY CHANGE OR MODIFICATION IN THE CONCLUSIONS IN OUR LETTER OF MARCH 4, 1959, TO THE CHAIRMAN OF THE SENATE COMMITTEE ON GOVERNMENT OPERATIONS THAT THE PROPOSED RENOVATION WORK CONSTITUTES AN "IMPROVEMENT" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 3733, REVISED STATUTES, AND THAT SINCE THERE APPEARS NO SPECIFIC AUTHORITY FOR PUBLIC IMPROVEMENTS IN THE AGENCY'S APPROPRIATIONS SUCH APPROPRIATIONS ARE NOT AVAILABLE FOR REIMBURSING GSA FOR THE PROPOSED RENOVATION WORK. IN VIEW OF THE FOREGOING CONCLUSIONS THERE IS NO NECESSITY, INSOFAR AS CONCERNS THE RENOVATION PROPOSED BY JOB ORDER NO. 13442, TO CONSIDER YOUR ARGUMENTS THAT THE WORK INVOLVED IS PROPERLY FOR PERFORMANCE BY GSA AS SPECIAL SERVICES ON REIMBURSABLE BASIS UNDER SECTION 210 (A) (6) AND 210 (F) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 AS AMENDED. HOWEVER, IN THE LIGHT OF YOUR STATEMENT THAT OUR LETTER OF MARCH 4, 1959, HAS PLACED IN DOUBT YOUR WHOLE REIMBURSABLE WORK PROGRAM, AND BECAUSE OF YOUR INTERPRETATION OF A CERTAIN PHRASE IN 38 COMP. GEN. 193 (B-132396), WE WILL CONSIDER YOUR ARGUMENTS IN THIS RESPECT.

THERE IS QUOTED IN YOUR LETTER AN EXTRACT FROM 38 COMP. GEN. 193, AS FOLLOWS:

CONCERNING THE DOUBT OF SOME FEDERAL AGENCIES REGARDING THEIR ABILITY TO REIMBURSE THE GENERAL SERVICES ADMINISTRATION FOR SPACE CHANGES INITIATED AT THEIR REQUEST AND FOR THEIR CONVENIENCE, IT APPEARS THAT WHERE THE SERVICES REQUESTED OF THE GENERAL SERVICES ADMINISTRATION BY ANOTHER FEDERAL AGENCY IN A BUILDING UNDER THE CONTROL OF THE GENERAL SERVICES ADMINISTRATION FALL WITHIN THE SCOPE OF "NORMAL SPACE NEEDS," THE OTHER AGENCY'S APPROPRIATIONS WOULD NOT BE AVAILABLE TO REIMBURSE THE GENERAL SERVICES ADMINISTRATION FOR SUCH SERVICE. HOWEVER, WHERE A FEDERAL AGENCY REQUESTS "SPECIAL SERVICES," THAT IS, THE SERVICES OVER AND ABOVE NORMAL SERVICES AND PECULIAR TO THE NEEDS OF THE AGENCY AND NOT BUDGETED FOR BY THE GENERAL SERVICES ADMINISTRATION, WE ARE OF THE VIEW THAT GENERALLY THE APPROPRIATIONS OF THE AGENCY REQUESTING THE SERVICES MUST BE AVAILABLE FOR SUCH SPECIAL SERVICES AND MUST BE USED THEREFOR THROUGH REIMBURSEMENT TO YOUR ADMINISTRATION. IN VIEW OF WHAT WE STATED ABOVE CONCERNING THE GENERAL SERVICES ADMINISTRATION REGULATIONS REFERRED TO IN OUR DECISION OF AUGUST 27, 1957, B-132396, IT DOES NOT APPEAR NECESSARY TO DISCUSS FURTHER THE APPLICATION OF THE REGULATIONS CONTAINED IN TITLE II, REAL PROPERTY MANAGEMENT. ( ITALICS SUPPLIED.)

YOU STATE THAT YOU HAVE GENERALLY CONSTRUED THE ITALICIZED PORTION OF THE QUOTED EXCERPT AS A STATEMENT INDICATING THAT THE APPROPRIATIONS TO GSA WERE NOT NORMALLY AVAILABLE FOR THESE ITEMS. IN CONTEXT, HOWEVER, THE QUOTED STATEMENT WAS MADE BECAUSE OF A STATEMENT IN YOUR LETTER OF JUNE 13, 1958, THAT SOME FEDERAL AGENCIES WERE DOUBTFUL OF THEIR ABILITY TO REIMBURSE GSA FOR SPACE CHANGES, INITIATED AT THEIR REQUEST AND FOR THEIR CONVENIENCE. WE DID NOT THEN UNDERTAKE TO CONSIDER WHAT TYPES OF SERVICES WOULD FALL WITHIN THE CATEGORY OF SPECIAL SERVICES, OR FOR WHAT SERVICES YOUR APPROPRIATIONS WOULD NOT IN ANY EVENT BE AVAILABLE. WHAT WE DID SAY, IN EFFECT, WAS THAT IF THE AGENCY'S APPROPRIATIONS WERE AVAILABLE EITHER BY SPECIFIC DESIGNATION OR BECAUSE OF NEEDS PECULIAR TO THE AGENCY'S DUTIES, THE APPROPRIATIONS OF GSA COULD NOT BE USED. THIS WOULD NECESSARILY BE TRUE BECAUSE OF THE WELL-ESTABLISHED RULE OF STATUTORY INTERPRETATION THAT THE MAKING OF A SPECIFIC APPROPRIATION FOR A PARTICULAR OBJECT EXCLUDES THE USE OF A MORE GENERAL APPROPRIATION WHICH MIGHT OTHERWISE BE AVAILABLE. 20 COMP. GEN. 272; 23 ID. 481; ID. 749. THE QUOTED STATEMENT NEVER WAS INTENDED TO HAVE THE BROAD APPLICATION SET FORTH IN YOUR LETTER.

YOUR " STANDARD PRACTICES" REGULATIONS DELINEATE TWO TYPES OF SERVICES FURNISHED THE OCCUPANT AGENCIES, NAMELY, THOSE FOR "NORMAL" SPACE NEEDS, AND THOSE CLASSIFIED AS "SPECIAL SERVICES," MADE AT THE REQUEST OF AND FOR THE CONVENIENCE OF THE OCCUPANT AGENCIES. THE FORMER ARE FURNISHED WITHOUT COST AND THE LATTER ARE FURNISHED UPON A REIMBURSABLE BASIS. IS WITH RESPECT TO THE SO-CALLED SPECIAL SERVICES THAT YOUR LETTER IS CONCERNED.

WHETHER AN AGENCY'S APPROPRIATIONS ARE AVAILABLE FOR SPECIAL SERVICES NOT BUDGETED FOR BY GSA, BUT FALLING SHORT OF IMPROVEMENTS TO GOVERNMENT-OWNED BUILDINGS WITHIN THE MEANING OF SECTION 3733, REVISED STATUTES, MUST BE DETERMINED IN THE LIGHT OF THE AGENCY'S APPROPRIATIONS AND THE LEGISLATIVE HISTORY THEREOF, CONSIDERING ALSO THE SPECIFIC NATURE OF THE OPERATIONS OF THE OCCUPANT AGENCY AND THE PECULIAR NEEDS ARISING THEREFROM. 18 COMP. GEN. 389. WE HAVE HELD THAT AN AGENCY'S APPROPRIATION IS AVAILABLE FOR PAYMENT OF THE COST OF NECESSARY STRUCTURAL ALTERATIONS IN A PUBLIC BUILDING DIRECTLY INCIDENTAL TO THE INSTALLATION OF SPECIAL PURPOSE EQUIPMENT NECESSARY TO THE PERFORMANCE OF DUTIES AND FUNCTIONS IMPOSED ON THE AGENCY BY LAW. 3 COMP. GEN. 812; 16 ID. 160. UNDER THIS PRINCIPLE WE HAVE HELD THAT AN AGENCY'S APPROPRIATION WAS AVAILABLE FOR THE INSTALLATION OF A VENT AND SPRINKLER HEADS IN A VAULT TO PROTECT MOTION PICTURE FILMS ESSENTIAL IN THE WORK CARRIED ON BY THE DIVISION OF VENEREAL DISEASES, PUBLIC HEALTH SERVICE, UPON THE GROUND THAT THE EXPENSE IN QUESTION MIGHT PROPERLY BE CONSIDERED AS INCIDENT TO THE WORK OF THE AGENCY, IN THAT THE FILM WAS A FIRE HAZARD, AND THAT THE WORK INVOLVED WOULD BE AS MUCH FOR THE PRESERVATION OF THE FILMS AS FOR THE PROTECTION OF THE BUILDING AGAINST FIRE, AND THUS MIGHT BE CHARGEABLE TO THE MAINTENANCE WORK OF THE AGENCY AS A SPECIFIC EXPENSE UNDER ITS APPROPRIATION. 5 COMP. GEN. 1014. WE HAVE ALSO HELD THAT WHERE THE WORK DOES NOT INVOLVE CHANGES RENDERED NECESSARY SOLELY BECAUSE OF SPECIALIZED WORK BY THE OCCUPYING AGENCY, AND ITS APPROPRIATION CONTAINS NO PROVISIONS FOR ALTERATIONS AND IMPROVEMENTS TO PUBLIC BUILDINGS, THE INADEQUACY IN AMOUNT OF AN APPROPRIATION FOR SUCH IMPROVEMENTS MADE TO THE AGENCY CHARGED WITH THE MAINTENANCE AND OPERATION OF PUBLIC BUILDINGS GENERALLY DOES NOT OPERATE TO AUTHORIZE THE USE FOR SUCH PURPOSES OF THE MORE GENERAL APPROPRIATION OF THE OCCUPYING AGENCY. 17 COMP. GEN. 1050.

FOR THE FOREGOING REASONS, WE CANNOT CONCUR IN YOUR STATEMENT THAT APPROPRIATIONS OF OCCUPANT AGENCIES PROVIDING GENERALLY "FOR ALL NECESSARY EXPENSES" ARE LEGALLY AVAILABLE FOR NECESSARY TENANT CHANGES WITHIN YOUR STANDARD PRACTICES BECAUSE CONGRESS HAS MADE NO SPECIFIC APPROPRIATIONS TO GSA WHICH WOULD HAVE THE EFFECT OF EXCLUDING THE AVAILABILITY OF THESE GENERAL AGENCY APPROPRIATIONS.

IT APPEARS FROM YOUR LETTER TO BE YOUR VIEW THAT IF YOU OR THE COMMISSIONER OF PUBLIC BUILDINGS OR THE REGIONAL COMMISSIONERS CONCLUDE THAT REPAIRS, ALTERATIONS OR IMPROVEMENTS ARE BEYOND THE ,NORMAL SPACE NEEDS" OF THE OCCUPANT AGENCY, THE WORK THEN MAY BE PERFORMED AS A SPECIAL SERVICE ON A REIMBURSABLE BASIS PURSUANT TO PARAGRAPH 4 OF YOUR STANDARD PRACTICES, WITHOUT REGARD TO THE AVAILABILITY OF THE AGENCY APPROPRIATIONS. IT IS POINTED OUT THAT YOUR STANDARD PRACTICES HAVE BEEN IN USE IN SUBSTANTIALLY THE SAME FORM AS AT PRESENT FOR OVER TWENTY YEARS BY YOUR ADMINISTRATION AND ITS PREDECESSOR, AND THAT THE PROCEDURES OUTLINED THEREIN HAVE FORMED THE BASIS FOR BUDGETING AND APPROPRIATION PURPOSES INCIDENT TO ALTERATION, IMPROVEMENT AND TENANT CHANGES MATTERS THROUGHOUT THAT PERIOD. AS AN EXAMPLE OF THE PROCEDURE FOLLOWED YOU REFER TO YOUR ESTIMATE OF APPROPRIATIONS, FISCAL YEAR 1951, UNDER THE HEADING " SALARIES AND EXPENSES, PUBLIC BUILDINGS AND GROUNDS OUTSIDE THE DISTRICT OF COLUMBIA.' PARTICULAR REFERENCE IS MADE TO PAGE 2, ENTITLED " STANDARD PRACTICES AS BASIS OF ESTIMATE," WHEREIN THERE ARE SET FORTH BOTH THE SERVICES INCLUDED AND THOSE EXCLUDED. WITH RESPECT TO THE LATTER CATEGORY YOU STATE THAT IT IS NOT POSSIBLE TO ANTICIPATE THE REQUIREMENTS OF SPECIAL SERVICES PECULIAR TO ANY AGENCY'S NEEDS, SUCH AS COSTS OF MAKING SPACE SUITABLE FOR USE AS LABORATORIES OR OTHER SPECIALIZED USES; MOVING ALTERATIONS AND TENANT CHANGES FOR CONVENIENCE OF THE TENANT, SUCH AS SPACE ADJUSTMENTS, AND ANY OTHER SPECIAL JOBS PURELY FOR THE BENEFIT OF THE TENANT AND NOT COVERED IN THE 1951 ESTIMATE. FROM THIS YOU ARGUE THAT IT IS CLEAR THAT THE CONGRESS, IN MAKING APPROPRIATIONS FOR GSA AND OTHER AGENCIES, HAS RECOGNIZED THAT TENANT CHANGES, BUILDING ALTERATIONS AND IMPROVEMENTS (AS DISTINGUISHED FROM ,PUBLIC IMPROVEMENTS" REQUIRING A SPECIFIC APPROPRIATION) FOR THE CONVENIENCE OR SPECIALIZED PURPOSES OF THE OCCUPANT, AND NOT WITHIN THE NONREIMBURSABLE CATEGORIES OF YOUR STANDARD PRACTICES, WOULD BE REIMBURSABLE. ALSO, YOU REFER TO PAGE 20 OF YOUR JUSTIFICATION OF ESTIMATES OF APPROPRIATIONS FOR THE FISCAL YEAR 1959, AS SUBMITTED TO THE CONGRESS, COVERING BUILDINGS MANAGEMENT OPERATIONS, AS FOLLOWS:

THE ESTIMATE FOR 1959 IS BASED ON STANDARD PRACTICES IN THE MANAGEMENT AND SERVICING OF BUILDINGS PROVIDED IN EXHIBIT 8, APPENDIX C, GSA REGULATIONS 2-II-304.04.

AND ON REIMBURSABLE JOB ORDERS, YOU INVITE ATTENTION TO PAGES 30 AND 31 ON THE BUILDINGS MANAGEMENT FUND AS IT APPEARS AND IS DISCUSSED AT PAGES 83 THROUGH 87 OF THE TRANSCRIPT OF THE HEARINGS BEFORE THE HOUSE SUBCOMMITTEE ON APPROPRIATIONS FOR FEBRUARY 11, 1958.

IN EXAMINING THE INDEPENDENT OFFICES APPROPRIATION HEARINGS FROM 1952 THROUGH 1959, WE FIND NO DISCUSSIONS CONCERNING THE AUTHORITY OF THE OCCUPYING AGENCIES TO REIMBURSE GSA FOR WORK PERFORMED, AND THE VERY FACT THAT THE AUTHORITY FOR MAKING REIMBURSEMENTS WAS NOT DISCUSSED WOULD TEND TO INDICATE THAT THE SUBCOMMITTEES WERE NOT AWARE THAT THE AGENCIES WERE MAKING SUCH REIMBURSEMENTS FOR SO-CALLED SPECIAL SERVICES WITHOUT SPECIFIC APPROPRIATION AUTHORITY. INDEED A READING OF THE DISCUSSION BETWEEN REPRESENTATIVE THOMAS AND MR. MEDLEY AND OTHER GSA OFFICIALS AS IT APPEARS ON PAGES 83 THROUGH 87 OF THE HEARINGS ON YOUR 1959 APPROPRIATIONS BEFORE THE SUBCOMMITTEE ON INDEPENDENT OFFICES OF THE HOUSE COMMITTEE ON APPROPRIATIONS, THE STATEMENTS BY YOUR REPRESENTATIVES COULD BE CONSTRUED AS MEANING THAT THE OCCUPYING AGENCIES GET SPECIFIC APPROPRIATIONS FOR SPECIAL SERVICES PERFORMED BY GSA. SPECIFICALLY, ON PAGE 86 OF THESE HEARINGS MR. MEDLEY, IN ANSWER TO A QUESTION BY MR. THOMAS CONCERNING THE SOURCES OF INCOME WITH RESPECT TO THE BUILDINGS MANAGEMENT FUND, STATED THAT "THEY (THE OCCUPYING AGENCIES) GET THE APPROPRIATIONS.' THE LOGICAL INFERENCE FROM THIS STATEMENT IS THAT THEY GET SPECIFIC APPROPRIATIONS FOR REIMBURSABLE WORK PERFORMED BY GSA.

OVER THE YEARS THE ACCOUNTING OFFICERS IN DETERMINING THE AVAILABILITY OF GENERAL APPROPRIATIONS FOR SPACE CHANGES FALLING SHORT OF "PUBLIC IMPROVEMENTS" WITHIN THE MEANING OF SECTION 3733, REVISED STATUTES, HAVE RECOGNIZED A DISTINCTION BETWEEN SPACE CHANGES AND ALTERATIONS FOR NORMAL USES AND THOSE FOR LABORATORIES OR OTHER SPECIALIZED USES. HOWEVER, IN VIEW OF THE BROAD LANGUAGE CONTAINED IN YOUR APPROPRIATION FOR "REPAIR AND IMPROVEMENT, FEDERALLY OWNED BUILDINGS," NAMELY "FOR EXPENSES NECESSARY FOR THE REPAIR, ALTERATION, PRESERVATION, RENOVATION, IMPROVEMENT, EXTENSION, EQUIPMENT, AND DEMOLITION OF FEDERALLY OWNED BUILDINGS," IT APPEARS THAT ALL OF THE ABOVE WORK, EXCEPT THAT INCIDENT TO LABORATORIES OR OTHER SPECIALIZED USES PECULIAR TO THE NEEDS OF THE OCCUPYING AGENCIES, PROPERLY MAY BE PERFORMED BY YOUR ADMINISTRATION AND PAID FOR FROM YOUR APPROPRIATION, SINCE YOUR APPROPRIATIONS SPECIFICALLY COVERS THE TYPE OF WORK WHICH IS INVOLVED IN TENANT CHANGES. IT THEREFORE IS OUR VIEW THAT AN AGENCY WHICH INTENDS TO USE ITS FUNDS FOR SPECIAL CHANGES OR OTHER TYPES OF WORK FOR WHICH YOUR APPROPRIATION IS SPECIFICALLY AVAILABLE MUST BUDGET FOR SUCH WORK AND SPECIFICALLY INFORM THE CONGRESS AT THE TIME OF THEIR APPROPRIATION HEARINGS THAT FUNDS ARE BEING REQUESTED FOR SUCH PURPOSES. IF THE APPROPRIATION ACT OF THE AGENCY SPECIFICALLY AUTHORIZES THE USE OF THE AGENCY FUND FOR SUCH PURPOSES OR IF IT IS APPARENT FROM THE LEGISLATIVE HISTORY OF THE APPROPRIATION THAT THE CONGRESS INTENDS THE AGENCY APPROPRIATION TO BE AVAILABLE THEREFOR, THEN SUCH APPROPRIATION WOULD BE AVAILABLE AND YOUR APPROPRIATION WOULD NOT BE, UNDER THE RULE THAT A SPECIFIC APPROPRIATION FOR A PARTICULAR OBJECT EXCLUDES THE USE OF A MORE GENERAL APPROPRIATION WHICH OTHERWISE MIGHT BE AVAILABLE. 20 COMP. GEN. 272. UNDER THE ARGUMENT YOU PRESENT IT WOULD APPEAR THAT TWO APPROPRIATIONS MIGHT BE AVAILABLE FOR SUCH WORK, DEPENDING UPON A DETERMINATION AS TO WHETHER THE WORK TO BE PERFORMED IS CLASSIFIED AS SPECIAL OR NORMAL, AND ALSO (AS DEVELOPED IN CONNECTION WITH THE AIR- CONDITIONING MATTERS CONSIDERED IN 38 COMP. GEN. 193) THE ADEQUACY OR INADEQUACY OF YOUR APPROPRIATIONS TO DO THE WORK.

BECAUSE OF THE LONG PREVAILING PRACTICE OF PERFORMING SPECIAL SERVICE WORK FOR THE AGENCIES ON A REIMBURSABLE BASIS WITHOUT REGARD TO AVAILABILITY OF THE AGENCIES' APPROPRIATION FOR SUCH WORK, AND YOUR STATEMENT THAT YOU ARE IN NO POSITION APPROPRIATION-WISE TO ABSORB EITHER NOW OR IN 1960 SUCH TENANT CHANGES, ALTERATIONS, AND IMPROVEMENTS AS HAVE BEEN HERETOFORE CONSIDERED BY YOU AND THE TENANT AGENCIES TO BE REIMBURSABLE UNDER THE STANDARD PRACTICES, WE WILL NOT OBJECT TO THE CONTINUANCE OF THIS PRACTICE PROVIDED THE MATTER IS PROMPTLY AND FULLY DISCLOSED TO THE CONGRESS, TOGETHER WITH YOUR VIEWS AND OUR VIEWS AS HEREIN INDICATED. THIS IS NOT TO BE UNDERSTOOD AS AUTHORIZING THE PERFORMANCE OF THE SPECIFIC WORK ON JOB ORDER NO. 13442 OR SIMILAR PROJECTS ON A REIMBURSABLE BASIS. IN THE MEANTIME, WE WILL BE GLAD TO HAVE OUR REPRESENTATIVES DISCUSS WITH YOUR REPRESENTATIVES ANY PROPOSED CHANGES IN YOUR STANDARD PRACTICES IN ORDER TO EXCLUDE FROM THE REIMBURSABLE WORK CATEGORY ITEMS NOT QUALIFYING FOR REIMBURSEMENT BECAUSE OF THE PROVISIONS OF SECTION 3733, REVISED STATUTES, OR OTHER APPLICABLE LAWS OR DECISIONS, AND TO DEFINE MORE SPECIFICALLY THE CLASSES OF WORK WHICH MAY AND MAY NOT BE PERFORMED ON A REIMBURSABLE BASIS. ACTION IN THE MATTER SHOULD BE PROMPTLY TAKEN IN ORDER THAT ANY NECESSARY REVISION IN YOUR STANDARD PRACTICES MAY BE REFLECTED IN YOUR 1961 BUDGET SUBMISSION TO THE CONGRESS.