BNUMBER:  B-277521 
DATE:  July 31, 1997
TITLE: [Letter], B-277521, July 31, 1997
**********************************************************************

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.