B-70501, DECEMBER 8, 1947, 27 COMP. GEN. 317

B-70501, DECEMBER 8, 1947, 27 COMP. GEN. 317

LEASES - SUBLEASING OF EXCESS SPACE - GOVERNMENT AGENCIES AND PRIVATE PARTIES WHILE, UNDER SECTION 29 OF THE WORLD WAR VETERANS' ACT, 1924, AS AMENDED, AUTHORIZING THE LEASING OF GOVERNMENT-OWNED PROPERTY, THE ADMINISTRATOR OF VETERANS' AFFAIRS MAY NOT SUBLEASE LEASED PROPERTY IN EXCESS OF THE NEEDS OF THE VETERANS' ADMINISTRATION TO OTHER GOVERNMENT AGENCIES OR PRIVATE PARTIES, SUCH SURPLUS SPACE MAY BE MADE AVAILABLE TO ANOTHER GOVERNMENT AGENCY PURSUANT TO THE PROVISIONS OF SECTION 601 OF THE ACT OF JUNE 30, 1932, AS AMENDED, RESPECTING INTERAGENCY SERVICES, UNDER AN INFORMAL AGREEMENT WHEREBY REIMBURSEMENT FOR THE PROPORTIONATE COST OF THE SPACE AND BUILDING SERVICES WILL BE EFFECTED BY AN ADJUSTMENT BETWEEN APPROPRIATIONS IN ACCORDANCE WITH THE PROVISIONS OF GENERAL REGULATIONS NO. 98.

COMPTROLLER GENERAL WARREN TO THE ACTING ADMINISTRATOR OF VETERANS' AFFAIRS, DECEMBER 8, 1947:

I HAVE YOUR LETTER OF OCTOBER 21, 1947, REQUESTING TO BE ADVISED (1) WHETHER WITHIN THE INTENT OF SECTION 29 OF THE WORLD WAR VETERANS' ACT, 1924, AS AMENDED, 43 STAT. 615 (38 U.S.C. 455), THERE IS LEGAL OBJECTION TO THE TEMPORARY SUBLETTING OF PROPERTY HELD BY THE UNITED STATES UNDER A FIVE-YEAR LEASE ENTERED INTO BY THE VETERANS' ADMINISTRATION UNDER AUTHORITY OF SECTION 100 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 284, AS AMENDED BY THE ACT OF JUNE 22, 1946, 60 STAT. 299 (38 U.S.C. 693), AND (2) WHETHER, IN THE EVENT SUCH SUBLETTING IS AUTHORIZED, THE NET PROCEEDS REQUIRED TO BE DEPOSITED AS MISCELLANEOUS RECEIPTS IS THE RENTAL RECEIVED FOR THE PROPERTY OR THE AMOUNT BY WHICH SUCH RENTAL EXCEEDS THE AMOUNT PAID FOR THE SPACE BY THE VETERANS' ADMINISTRATION.

AS TO THE CIRCUMSTANCES UNDER WHICH THE QUESTIONS PRESENTED AROSE IT IS STATED IN YOUR LETTER THAT---

AS ONE FLOOR OF THE SPACE LEASED IS NOT REQUIRED FOR USE BY THE VETERANS' ADMINISTRATION AT THE PRESENT TIME, IT WILL BE OCCUPIED BY ANOTHER GOVERNMENT AGENCY ON A MONTH TO MONTH BASIS AND IT IS CONTEMPLATED THAT PAYMENT WILL BE MADE TO THE VETERANS' ADMINISTRATION BY MEANS OF STANDARD FORM 1080 FOR THE PROPORTIONATE AMOUNT OF SPACE UTILIZED, CREDIT BEING GIVEN TO THE APPROPRIATION CHARGED WITH THE TOTAL AMOUNT OF RENTAL.

IT IS DEEMED DESIRABLE TO ALLOW THE LEAVE COVERING THE AFORESAID SPACE TO REMAIN IN EFFECT DURING THE REMAINDER OF THE FIVE-YEAR PERIOD, SINCE IT IS ANTICIPATED THAT THIS SPACE WILL BE NEEDED TO PROVIDE FOR THE EXPANSION OF THE VETERANS ADMINISTRATION ACTIVITIES NOW LOCATED IN THE BUILDING. IT IS ANTICIPATED, HOWEVER, THAT THE OCCASION MAY ARISE IN THE INTERIM WHEN THE SPACE WILL NO LONGER BE REQUIRED BY ANOTHER AGENCY OF THE FEDERAL GOVERNMENT, IN WHICH EVENT IT WOULD BE TO THE BEST INTERESTS OF THE GOVERNMENT TO RENT THE SPACE TEMPORARILY TO A COMMERCIAL CONCERN.

SECTION 29 OF THE WORLD WAR VETERANS' ACT OF 1924, 43 STAT. 615, AS AMENDED, REFERRED TO IN YOUR LETTER, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 29. THE DIRECTOR IS AUTHORIZED, IN HIS DISCRETION, TO SELL, LEASE, OR EXCHANGE SURPLUS EQUIPMENT, SUPPLIES, PRODUCTS, OR WASTE MATERIALS BELONGING TO THE BUREAU OR ANY OF ITS PLANTS OR INSTITUTIONS; AND TO LEASE FOR A TERM, NOT EXCEEDING THREE YEARS, LANDS OR BUILDINGS, OR PARTS OR PARCELS THEREOF, BELONGING TO THE UNITED STATES AND UNDER THE CONTROL OF THE BUREAU. THE NET PROCEEDS OF ALL SUCH SALES, LEASES, OR EXCHANGES SHALL BE COVERED INTO THE TREASURY OF THE UNITED STATES AS MISCELLANEOUS RECEIPTS.

UNDER THE EXPRESS TERMS OF THE STATUTORY PROVISION, ABOVE QUOTED, THE AUTHORITY VESTED IN THE ADMINISTRATOR OF VETERANS' AFFAIRS TO LEASE SUCH PROPERTY AS THEREIN DESCRIBED PERTAINS TO PROPERTY "BELONGING TO THE UNITED STATES AND UNDER THE CONTROL OF THE VETERANS' ADMINISTRATION.' THUS THE AUTHORITY GRANTED IS EXPRESSLY LIMITED TO GOVERNMENT-OWNED PROPERTY AND DOES NOT INCLUDE PROPERTY LEASED TO THE GOVERNMENT AND UNDER THE CONTROL OF THE VETERANS' ADMINISTRATION, SUCH AS REFERRED TO IN YOUR LETTER. FURTHERMORE, IT CONSISTENTLY HAS BEEN HELD THAT PAYMENT OF RENT BY ONE GOVERNMENT DEPARTMENT OR AGENCY FOR PREMISES UNDER THE ADMINISTRATIVE CONTROL OF ANOTHER GOVERNMENT DEPARTMENT OR AGENCY IS NOT AUTHORIZED. SEE 21 COMP. DEC. 528; 22 ID. 684; 20 COMP. GEN. 581; ID. 699. AND IT MAY BE STATED THAT, WHILE THE LEASING SPACE IN EXCESS OF THE NEEDS OF THE PARTICULAR ACTIVITY INVOLVED AND SUBLEASING SUCH SPACE TO OTHER GOVERNMENT AGENCIES OR ESTABLISHMENTS. NEITHER IS THERE GENERAL AUTHORITY FOR A GOVERNMENT ACTIVITY HAVING CONTROL OF A LEASEHOLD INTEREST IN EXCESSIVE SPACE TO SUBLEASE THE SAME TO PRIVATE PARTIES.

HOWEVER, THE PROVISIONS OF SECTION 7 (A) OF THE ACT OF MAY 21, 1920, 41 STAT. 613, AS AMENDED BY SECTION 601 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 417, AS AMENDED BY THE ACT OF JULY 20, 1942, 56 STAT. 661 (31 U.S.C. 686), HAVE BEEN HELD TO CONSTITUTE SUFFICIENT AUTHORITY FOR ONE GOVERNMENT AGENCY TO MAKE AVAILABLE TO ANOTHER GOVERNMENT AGENCY, UNDER AN INFORMAL ARRANGEMENT SURPLUS SPACE IN LEASED PREMISES AND TO RECEIVE REIMBURSEMENT FOR THE PROPORTIONATE COST OF THE SPACE AND OF ALL UTILITIES AND SERVICES INVOLVED, INCLUDING THE COST OF LIGHT, HEAT, FUEL, WATER AND JANITOR SERVICES. SEE 24 COMP. GEN. 851 AND 26 COMP. GEN. 677.

INASMUCH AS YOUR ADMINISTRATION APPARENTLY HAS DEEMED IT NECESSARY TO RETAIN CONTROL OF THE ADDITIONAL SPACE HERE IN QUESTION FOR POSSIBLE FUTURE USE FOR THE PURPOSE PROVIDED FOR IN SECTION 100 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, SUPRA, RATHER THAN TO DECLARE THE SPACE TO BE SURPLUS FOR REASSIGNING TO ANOTHER GOVERNMENT AGENCY BY THE PUBLIC BUILDINGS ADMINISTRATION UNDER SECTION 1 OF THE ACT OF AUGUST 27, 1935, 49 STAT. 885, AS AMENDED BY THE ACT OF JULY 18, 1940, 54 STAT. 764 (40 U.S.C. 304A), THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO MAKING SUCH AN ARRANGEMENT FOR THE OCCUPANCY OF SUCH ADDITIONAL SPACE BY ANOTHER GOVERNMENT AGENCY, UNLESS PROHIBITED BY THE TERMS OF THE LEASE UNDER WHICH THE INTEREST IN THE PROPERTY WAS ACQUIRED. AS SUGGESTED IN YOUR LETTER, REIMBURSEMENT FOR THE PROPORTIONATE COST OF THE SPACE AND ANY SPECIAL SERVICES SHOULD BE EFFECTED BY AN ADJUSTMENT OF APPROPRIATIONS OF MEANS OF STANDARD FORM 1080. SEE GENERAL REGULATIONS NO. 98, OCTOBER 7, 1943, 23 COMP. GEN. 998.

IS, AS YOUR ADMINISTRATION APPEARS TO ANTICIPATE, IT LATER BECOMES DIFFICULT TO FIND ANOTHER GOVERNMENT AGENCY WHICH DESIRES TO OCCUPY THE EXCESSIVE SPACE ON SUCH A TEMPORARY INFORMAL BASIS, THERE IS SUGGESTED THE ADVISABILITY OF TAKING THE MATTER UP WITH THE PUBLIC BUILDINGS ADMINISTRATION WITH THE VIEW TOWARDS OBTAINING ITS ASSISTANCE IN THAT CONNECTION.