BNUMBER: B-277521
DATE: July 31, 1997
TITLE: [Letter], B-277521, July 31, 1997
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B-277521
July 31, 1997
The Honorable Alan M. Hantman
Architect of the Capitol
Dear Mr. Hantman:
This responds to your July 15, 1997, letter asking whether there are
options under current law for accepting the Radio and TV
Correspondents Association's proposal to pay for certain modifications
to the United States Capitol incident to the installation of broadcast
equipment. Specifically, the Association, on behalf of the networks
it represents, wishes to install equipment for broadcasting
congressional events similar to equipment located in various
facilities in the Capitol Complex that has been provided and is used
by other broadcast networks. An available storage room in the Capitol
has been identified for this purpose. However, the storage room will
need modifications estimated to cost $55,000 for power, cooling, fire
protection, lighting, and cable pathways in order to support the
installation and use of the broadcast equipment. The two options
discussed below are available under current law for accepting the
Association's proposal to pay for the work necessary to installing the
broadcast equipment.[1]
Receive a Gift From the Association
One option for implementing the Association's proposal is for the
Association to make a gift of money to the U.S. Capitol Preservation
Commission, of which the Architect is an ex officio member. 40 U.S.C. sec.
188a(d) (1994). As a general rule, an agency may not accept for its
own use gifts of money or property in the absence of express statutory
authority. Using such gifts in the absence of statutory authority
constitutes an unauthorized augmentation of appropriations.
Principles of Federal Appropriations Law, 2-141 (GAO/OGC-92-13,
December 1992). The U.S. Capitol Preservation Commission has the
requisite statutory authority to accept a gift from the Association
and use it for the proposed purposes.
The U.S. Capitol Preservation Commission was established for a number
of purposes, including providing for improvements in, preservation of,
and acquisitions for the United States Capitol and conducting other
activities that directly facilitate, encourage, or otherwise support
such purposes. 40 U.S.C sec. 188a(a)(1), (3) (1994). The Commission may
accept gifts of property and money to carry out its purposes as well
as acquiring, administering, disposing, and conducting other
transactions relating to such property. 40 U.S.C. sec. 188a-1(a).
Donations are required to be deposited into the Capitol Preservation
Fund, which has been established in the Treasury. 40 U.S.C. sec.
188a-1(c)(1), 188a-2(a). The Fund is available (1) to pay transaction
costs, and similar expenses incurred relating to gifts or property and
(2) for improvement and preservation projects for the United States
Capitol (subject to the approval of the Committee on Appropriations of
the House and the Committee on Appropriations of the Senate). 40
U.S.C. sec. 188a-2(b)(1), (2).
We believe these statutory provisions provide the Commission with the
authority to accept a gift of money from the Association and use
those funds to make the improvements to the Capitol proposed by the
Association in accordance with statutory and other procedures
governing improvement projects for the United States Capitol.
Grant a Permit to the Association
Another option for implementing the Association's proposal is for an
authorized official of the Congress to grant the Association a permit
under which the Association will pay for the needed modifications.
The Comptroller General and the Attorney General have long recognized
that even in the absence of express statutory authority, the head of
an agency or department may grant a private person a nonexclusive,
nontransferable, revocable permit or license to use government
property (real or personal) for nongovernment business, provided that
such use does not permanently injure the property and serves some
purpose useful and beneficial to the government. B-191943, October
16, 1978; 44 Comp. Gen. 824 (1965); 36 Comp. Gen. 561 (1957); 22 Comp.
Gen. 63 (1942); 30 Op. Att'y Gen. 470 (1915). These determinations
lie within the discretion of the agency official empowered to grant
the permit or license.[2]
Implementing the Association's proposal by granting it a permit
presents certain issues regarding the relationship between the
Architect, the Association, and the contractor performing the
modification work. First, all improvements, alterations, additions,
and repairs to the Capitol Building must be made by the direction and
under the supervision of the Architect of the Capitol. 40 U.S.C. sec.
166 (1994). While the law does not require that the Architect
actually perform the work on the Capitol or that the government pay
for all such work, it does require that the work be performed under
the oversight of the Architect.
Second, it would be consistent with the requirement that the work be
performed under the Architect's oversight for the Architect to agree
on the contractor to perform the work. This of course could be
accomplished by the permit providing that the Association will select
a contractor and administer the contract, but the contractor must be
approved by the Architect and under the Architect's general oversight.
Alternatively, there may be security or other reasons to have the
Architect select the contractor and administer the contract by
agreeing that the Architect will serve as the Association's
representative in these matters. If this alternative is chosen, the
permit and resulting contract should clearly provide that the
Architect is not acting on behalf of the United States government, the
Association alone is legally liable for paying the contractor, and
there is a means for ensuring that the Association provides sufficient
funds to cover the cost of the modifications.[3]
Finally, the permit should reflect the Association's responsibility
for restoring the premises when the permit expires. The broadcast
equipment and any equipment installed on the premises as part of the
proposed modification are and will remain the property of the
Association (or the networks it represents). Accordingly, the
Association will be responsible for removing equipment and restoring
the premises as required by the Architect.
I trust the foregoing will be of assistance.
Sincerely yours,
Robert P. Murphy
General Counsel
B-277521
July 31, 1997
DIGEST
1. The U.S. Capitol Preservation Commission is authorized by 40
U.S.C. sec. 188a through 188a-5 (1994) to accept a gift of money from
the Radio and TV Correspondents Association to pay for certain
modifications to the United States Capitol incident to the
installation of broadcast equipment in order to permit the entities it
represents to broadcast congressional events.
2. An authorized official of Congress may grant the Radio and TV
Correspondents Association a nonexclusive, nontransferable, revocable
permit or license to locate broadcast equipment in the United States
Capitol in order to permit the entities it represents to broadcast
congressional events and to pay for modifications needed to permit the
premises to be used for such purposes, provided that such use does not
permanently injure the property and serves some purpose useful and
beneficial to the government.
1. We understand the broadcast equipment will be used only by the
Association and the organizations that it represents, and the
modifications are solely for the purpose of supporting the equipment.
Because the broadcast equipment is neither for the official business
of the government nor the type of relatively standard equipment likely
to be readily accessed for official government business, this does not
appear to present the risk of an improper augmentation of
appropriations discussed in 70 Comp. Gen. 597 (1991). Further,
locating the equipment on government property does not constitute an
improper augmentation of appropriations simply because there is also a
public benefit, namely the dissemination of information about the
activities of the Congress, since this is a requirement for granting
the permit or license.
2. Which officials of the Congress would be authorized to grant a
permit to the Association is a matter to be determined in accordance
with the provisions of law and the Rules of the House of
Representatives and the United States Senate relating to the control
of, and the assignment of space in, the Capitol Building.
3. A procedure that provides for the Association to retain custody of
the funds and directly pay the contractor avoids a number of
potential problems that may arise if the Architect or some other
congressional official handles the funds. See White House Travel
(GAO/AIMD-36-138R, September 18, 1996) and GAO reports cited therein.