Questions for the Record: Hearing on the Judiciary's Ability to
Pay for Current and Future Space Needs (27-JUL-05, GAO-05-941R).
On June 21, 2005, we testified at the Subcommittee on Economic
Development, Public Buildings, and Emergency Management Committee
on Transportation and Infrastructure's oversight hearing on the
judiciary's ability to pay for current and future space needs.
This report responds to a June 23, 2005, request in which
Congress asked additional questions about the Federal Buildings
Fund (FBF) and the judiciary's efforts to manage its space needs.
To respond to these questions, we primarily relied on our
previous work and knowledge of these areas. We prepared this
response during June and July 2005 in accordance with generally
accepted government auditing standards. Because our response is
primarily based on previously issued products, we did not seek
agency comments on a draft of this report.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-05-941R
ACCNO: A31359
TITLE: Questions for the Record: Hearing on the Judiciary's
Ability to Pay for Current and Future Space Needs
DATE: 07/27/2005
SUBJECT: Construction costs
Cost analysis
Cost control
Facility construction
Facility maintenance
Facility management
Federal courts
Federal facilities
Federal funds
Funds management
Rental rates
Federal Buildings Fund
******************************************************************
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GAO-05-941R
United States Government Accountability Office Washington, DC 20548
July 27, 2005
The Honorable Bill Shuster
Chairman
The Honorable Eleanor Holmes Norton
Ranking Democratic Member
Subcommittee on Economic Development, Public
Buildings, and Emergency Management Committee on Transportation and
Infrastructure House of Representatives
Subject: Questions for the Record: Hearing on the Judiciary's Ability to
Pay for Current and Future Space Needs
On June 21, 2005, we testified at the Subcommittee's oversight hearing on
the judiciary's ability to pay for current and future space needs.1 This
report responds to your June 23, 2005, request in which you asked
additional questions about the Federal Buildings Fund (FBF) and the
judiciary's efforts to manage its space needs. To respond to these
questions, we primarily relied on our previous work and knowledge of these
areas. We prepared this response during June and July 2005 in accordance
with generally accepted government auditing standards. Because our
response is primarily based on previously issued products, we did not seek
agency comments on a draft of this report. Our answers to your questions
follow.
Question 1. On page 6 [of your testimony] you mention the downside of
"flexible design guidance" - what does that mean and how does it affect
construction budgets?
As we reported in 1995,2 flexible design guidance refers to the wide
latitude the General Services Administration (GSA) and the judiciary had
in choosing the location, design, construction, and finishes of courthouse
projects. These choices significantly affected courthouse construction
costs. Because of such choices, some courthouses had more expensive
materials or costly design configurations and enhancements than other
courthouses. This flexibility contributed to large degrees
1 GAO, Courthouse Construction: Overview of Previous and Ongoing Work,
GAO-05-838T
(Washington, D.C.: June 21, 2005).
2 GAO, Federal Courthouse Construction: More Disciplined Approach Would
Reduce Costs and
Provide for Better Decisionmaking, GAO/T-GGD-96-19 (Washington, D.C.: Nov.
8, 1995).
of uncertainty and variability in courthouse construction budgets. For
example, in the Foley Square courthouse in New York, GSA used white marble
from floor to ceiling as well as in the main lobby and carried the marble
motif to each elevator lobby throughout the building. By comparison, GSA
used drywall, wood, and manufactured stone highlights to finish the lobby
of the Alexandria courthouse in Virginia. According to the GSA project
officer, these materials were less expensive than marble. The different
choices made about the fixtures and finishes of these two courthouses had
a major impact on their construction costs.
Question 2. Your testimony also frequently mentions systematic oversight
(page 6), and the need for a systematic process to oversee and manage
court projects. As you know, GSA has a Courts Management Group currently
housed within the Office of the Chief Architect. Do you believe that is
the best placement for this important office? Since it is 4 levels removed
from the Commissioner, how effective can it be?
We have not formally evaluated the overall effectiveness and/or
organizational placement of the Courts Management Group within GSA's
Office of the Chief Architect. However, we have recognized that the
creation of such an office is important to bringing more focus and
discipline into the courthouse planning, funding, and construction
process.
In 1993, the Administrative Office of the U.S. Courts (AOUSC) and GSA
convened an Independent Courts Building Program Panel to provide an
objective assessment of the overall courthouse construction program. The
panel made a number of recommendations intended to improve the management
of the program, identify opportunities for cost savings, and ensure that
public funds were being spent efficiently and cost-effectively. One of the
panel's recommendations was to create a Center for Courthouse Programs
(CCP) within GSA's Public Buildings Service.
In 1995, GSA established the Courthouse Management Group, within its
Public Buildings Service, to be the central management organization for
the courthouse building program. The Courthouse Management Group
officially became CCP and was relocated under the Office of the Chief
Architect, within the Public Buildings Service, as part of a 2003
reorganization of the central office of GSA's Public Buildings Service.
CCP was established to serve as the central point of contact for the
judiciary, GSA's field offices, the Office of Management and Budget (OMB),
and Congress. CCP's responsibilities include reviewing and finalizing
prospectuses, which are detailed project descriptions, before they are
submitted to OMB; developing cost benchmarks; comparing cost estimates for
new projects with these benchmarks; and determining whether proposed
courthouse designs conform to the standards published in the U.S. Courts
Design Guide (Design Guide).
According to GSA, its Office of the Chief Architect is the source of
design and construction expertise for GSA's $10 billion construction
program and is an appropriate location for CCP. GSA indicated that CCP is
a technical resource to
GSA's Administrator and Public Buildings Service Commissioner, providing
the benefit of professional expertise in the creation of buildings,
including courthouses, but is not large enough to justify an independent
office.
Question 3. What impact have caps had on the Federal Buildings Fund? What
about the rent the Administrator waives each year? For the Federal
Buildings Fund to have sufficient monies to manage the federal inventory,
how important is it that agencies are housed in federally owned space?
We have found that rent caps, or restrictions, have had a serious,
detrimental impact on the ability of the Federal Buildings Fund (FBF) to
finance the government's real property asset management needs. Since the
early 1980s, we have repeatedly noted that rent exemptions, such as those
instituted at various times by OMB and Congress, have contributed to
shortfalls in FBF. In a 1989 report,3 we described the restrictions as a
principal reason why FBF has accumulated insufficient money for capital
improvements, and we recommended the elimination of all rent restrictions.
According to GSA, most of the rent restrictions have been lifted, but a
number of narrowly focused rent exemptions still remain. Some were
legislatively mandated, but the GSA Administrator granted most of the
current exemptions. In general, these exemptions are focused on one
building or are granted for a limited time. The total amount of the
estimated annual rent forgone because of these rent exemptions is about
$170 million. Table 1 lists these exemptions, their justifications, and
the estimated forgone annual rent.
Table 1: Current Rent Exemptions in GSA Buildings
Estimated
Agency, address Justification forgone annual
rent
Smithsonian Institution,
National Legislatively mandated exemption. $4,566,632
Museum of the American
Indian,
New York, NY
GSA granted an exemption to the
U.S. Postal Service, 271 Postal Service as part $1,820,000
Cadman Plaza, New York, of a 99-year rent-free agreement
NY with GSA as a condition
of the negotiated sale of the
building in lieu of a transfer of
funds from GSA.
National Building
Museum, 5th Legislatively mandated exemption. $1,300,000
and F Sts., Washington,
DC
Woodrow Wilson Center, GSA granted an exemption based on
1300 funding limitations $5,400,000
Pennsylvania Ave., imposed by Congress and the
Washington, compelling purpose of
DC memorializing the nation's 28th
President.
Department of Commerce, GSA granted an exemption covering
14th the area of the $400,000
St. and Constitution building that is maintained at the
Ave., expense of the tenant
Washington, DC agency.
National Imaging and GSA granted a rent exemption of 50
Mapping percent because the $7,038,552
Agency, M St., tenant agreed to pay all
Washington, DC maintenance, capital
improvements, and security
expenses due.
3 GAO, Federal Office Space: Increased Ownership Would Result in
Significant Savings, GAO/GGD90-11 (Washington, D.C.: Dec. 22, 1989).
Estimated
Agency, address Justification forgone annual rent
Department of GSA granted a 100-percent
Agriculture, rent exemption for the $52,406,234
multiple locations, tenant's three headquarters
Washington, buildings for fiscal years
1996
DC through 2006 to allow the
tenant to accumulate funds
needed for major repairs on
these buildings. The tenant
will then pay for the
repairs.
Railroad Retirement GSA granted a partial rent
Board, exemption so that the tenant $3,655,063
nationwide locations would pay only the actual
costs for these buildings
through fiscal year 2013.
Centers for Medicare and GSA granted a partial rent
exemption so that the tenant $15,717,264
Medicaid Services, would pay only the actual
nationwide costs for these buildings
locations through fiscal year 2013.
Social Security GSA granted a partial rent
Administration, exemption so that the tenant $72,417,477
would pay only for the
Washington, DC actual costs for these
buildings
through fiscal year 2013.
GSA granted an exemption for
Department of State, 1801 space used by the $1,330,740
Pennsylvania Ave., President's G-8 Economic
Washington, Summit staff from August
2004
DC to November 2004 because
neither the Department of
State nor the G-8 Economic
Summit has received
appropriated funding for
rent payments to GSA.
International GSA granted an exemption in
Broadcasting 2004 based on tenant $1,016,195
certification that it did
Board of Governors, not have funds available to
meet the
Washington, DC obligation. A new long-term
occupancy agreement is
being negotiated.
Presidential and Armed GSA granted an exemption in
Forces 2004 because it found that $2,415,440
Inaugural Committees, it was not practical or
Mary E. feasible for the tenant to
pay the
Switzer Building, rent.
Washington,
DC
U.S. Election Assistance GSA granted an exemption for
fiscal year 2004 because $100,060
Commission, Washington, the tenant was appropriated
DC only 12 percent of its
authorized budget and did
not have sufficient money to
pay its rent.
Total $169,583,657
Source: GAO analysis of GSA data.
Note: According to GSA, the U.S. Senate does not pay market rates for its
GSA facilities (district offices) because of an October 1996 signed
memorandum of agreement between the U.S. Senate and GSA regarding
tenant-requested improvements, but the U.S. Senate has not been granted a
formal exemption.
We have repeatedly reported on the importance for cost reasons of housing
agencies in owned space rather than leasing space from the private sector.
In a 1989 study of 43 projects, we found that constructing government
buildings would cost $12 billion
4
less than leasing the same facilities from the private sector over a
30-year period. These findings were borne out in additional GAO studies in
1995 and 1999.5 We also
4 GAO/GGD-90-11.
5 GAO, General Services Administration: Opportunities for Cost Savings in
the Public Buildings
Area, GAO/T-GGD-95-149 (Washington, D.C.: July 13, 1995) and GAO, General
Services
Administration: Comparison of Space Acquisition Alternatives-Leasing to
Lease-Purchase and
Leasing to Construction, GAO/GGD-99-49R (Washington, D.C.: Mar. 12, 1999).
identified a heavy reliance on costly leasing as an issue that contributed
to our identifying federal real property as a governmentwide high-risk
issue in 2003.6 In addition, we have found that the surplus generated for
FBF through leasing is minimal. GSA officials said that GSA charges
agencies the price it pays for the lease plus an 8-percent, administrative
fee.
Question 4. What is the schedule for completion of the April request from
this Committee? Have you begun the work? Any problems?
As discussed on July 15, 2005, with the office of the Subcommittee on
Economic Development, Public Buildings, and Emergency Management, we are
pursuing the following three objectives.
(1) How are rent payments calculated by GSA and planned and accounted for
by the judiciary?
(2) What trends has the judiciary experienced in rent payments and space
needs in recent years?
(3) What challenges, if any, does the judiciary face in managing its need
for space to accomplish its mission?
We plan to complete our design work for this request by August 31, 2005.
At that time, we will be in a position to commit to a final issuance date.
Our work on the request is underway. We have met with the judiciary and
GSA, and we have started collecting and analyzing relevant data. To date,
both the judiciary and GSA have fully cooperated with our work.
Question 5. Government-wide, do landholding agencies receive sufficient
appropriations to meet their space acquisition and maintenance needs?
Federal landholding agencies we reviewed have not historically received
enough funding to meet their federal real property management needs. These
agencies commonly have sizable deferred maintenance backlogs that are
continually increasing because of insufficient funding for facility
maintenance. For example, in a 2004 GAO report, 7 we cited an estimate by
the Secretary of Defense that the total cost of improving facilities to a
level that would meet the department's condition goals would be between
$62 billion and $164 billion. Using funds for infrastructure has, in fact,
limited the ability of the Department of Defense to devote more funding to
other critical departmental needs. In January 2003, we reported that the
Department of the
6 GAO, High-Risk Series: Federal Real Property, GAO-03-122 (Washington,
D.C.: January 2003). 7 GAO, Defense Infrastructure: Long-term Challenges
in Managing the Military Construction Program, GAO-04-288 (Washington,
D.C.: Feb. 24, 2004).
Interior estimated the value of its deferred maintenance backlog at
between $8.1 billion and $11.4 billion.8 Using facility assessments, the
Office of Facilities Reliability, within the Smithsonian's Office of
Facilities Engineering and Operations, determined that the Smithsonian
Institution had an inventory of about $329 million in deferred maintenance
projects as of October 2004.9 Even with recent increases in congressional
funding for facility construction and maintenance, many federal facilities
are still in an alarming state of deterioration. Deteriorating federal
facilities, in part, caused us to designate federal real property as a
governmentwide high risk area in 2003 and to continue that designation in
our 2005 update.
Question 6. Please comment on the potential effectiveness of the
Judiciary's efforts to reduce their space costs? What more would you
recommend they do?
In 1995, we reported that GSA and the judiciary have processes to identify
needs and to propose courthouse construction projects; however, they had
not developed and implemented a strategic capital investment plan that (1)
puts projects in some longterm strategic context, (2) sets priorities
among competing projects, and (3) identifies short-and long-term project
funding needs.10 We recommended that GSA and AOUSC work together to take
the following actions:
o Complete and effectively implement a plan for capital investment that
identifies, fully justifies, and sets priorities among needed projects and
lays out all known needed projects in a long-term strategic
context-including the specific rationale and criteria used for identifying
each of the higher-priority projects and the estimated funding needed to
design and construct the projects.
o Clearly define project scope and refine construction cost estimates
before requesting project approval and final funding levels.
o Establish and effectively implement a systematic and ongoing project
oversight and evaluation process to compare and contrast courthouse
projects, identify opportunities for reducing costs, and communicate and
apply lessons learned to ongoing and future projects.
o Establish a mechanism to monitor and assess the use of the flexible
design guidance with a view toward striking a better balance in the
choices made about courthouse design, including features and finishes.
In a 2004 congressional briefing, we identified key actions the judiciary
and GSA have taken to improve the courthouse construction program.
Specifically, in fiscal year
8 GAO, Major Management Challenges and Program Risks: Department of the
Interior, GAO-03-104
(Washington, D.C.: January 2003).
9 GAO, Smithsonian Institution: Facilities Management Reorganization Is
Progressing, but
Funding Remains a Challenge, GAO-05-369 (Washington, D.C.: Apr. 25, 2005).
10 GAO/T-GGD-96-19.
1996, the judiciary implemented an annually updated, rolling Five-Year
Courthouse Plan, and in 1997, it revised the U.S. Courts Design Guide to
incorporate new criteria intended to encourage cost-consciousness.
According to the judiciary, several actions designed to improve
communications and management of the program have been implemented.
At the Subcommittee's June 21, 2005, hearing, the judiciary discussed
multiple initiatives designed to control the building program's costs and
reduce the rent amounts paid to GSA. The initiatives include a review of
the standards in the Design Guide and a re-evaluation of the long-range
planning process. While the judiciary's cost-containment initiatives could
be a step forward, we believe our original 1995 recommendation to
implement a strategic capital investment plan is still relevant.
Additionally, our 1997 analysis of actual courtroom use for trials and
nontrial activities at seven locations suggested there may be
opportunities to reduce costs by building fewer full-sized trial
courtrooms through implementing courtroom sharing.11
Question 7. Do the excerpts of prior GAO reports included in testimony
submitted by the judiciary present a fair and accurate reflection of the
current status of the Federal Buildings Fund?
Our prior reports have shown that rent payments have provided a relatively
stable, predictable source of revenue for FBF, but that this revenue has
not kept pace with demands. All of the excerpts AOUSC quoted from our
reports were accurate, but they did not reflect the full breadth of the
issues related to federal real property management included in those
products. For example, in each of the five cited GAO reports and
testimonies, AOUSC quoted our findings of FBF's shortfalls without noting
that in each case we found that rent restrictions-like the one AOUSC is
requesting-contributed to those shortfalls. The following bullets provide
additional context for each of AOUSC's citations from our reports.
o As cited by AOUSC, we concluded in 1981 that FBF had not generated
sufficient revenue for construction and that there was no evidence that
FBF had improved agencies' use of space.12 However, in that report, we
also found that initial expectations for FBF were too high because GSA
relied too much on costly leasing, OMB and Congress restricted the rent
GSA could charge, and FBF was not established with upfront funds. We
concluded that FBF may overcome its early cash flow problems over time and
recommended that Congress strengthen FBF in a number of ways, including
providing GSA with additional authority to borrow from the Treasury or
making direct appropriations to augment FBF's resources. Since that
report, Congress has made numerous supplemental appropriations to FBF.
11 GAO, Courthouse Construction Sufficient Data and Analysis Would Help
Resolve the Courtroom-
Sharing Issue, GAO-01-70 (Washington, D.C.: Dec. 14, 2000).
12 GAO, GSA's Federal Buildings Fund Fails to Meet Primary Objectives,
GAO/PLRD-82-18
(Washington, D.C.: Dec. 11, 1981).
o As cited by AOUSC, we testified in March 1990 that FBF was not
generating sufficient revenue for construction or property acquisition.13
However, we also stated in that testimony that one reason for the
insufficient FBF revenues was that OMB and Congress have periodically
restricted the rent GSA could charge tenant agencies. We estimated in that
testimony that these restrictions had reduced FBF revenue by $4 billion up
to that time. Moreover, in a report published 3 months earlier, we
recommended eliminating all OMB and congressional rent restrictions.14
o In 1992, as cited by AOUSC, we testified again that FBF had not met
its original expectations and that the Pentagon's removal from the GSA
system could signal erosion of support for the concept.15 However, we also
cited problems such as rent restrictions and dependence on leased space as
reasons for FBF generating insufficient revenue.
o AOUSC cited our 1993 finding that there are a number of obstacles to
the government's cost-effective, businesslike acquisition and management
of real property mission assets. These obstacles included GSA management
weaknesses and FBF shortfalls.16 However, our report also noted that a
number of reforms had been proposed to remove the obstacles and that the
principal reasons for FBF shortfalls included rent restrictions and a
reliance on leased space.
o AOUSC cited our 1993 finding that rent payments, while providing a
relatively stable, predictable source of revenue, have not been sufficient
to finance capital investment and the costs of leased space.17 However,
AOUSC's citation excluded our observation that one reason FBF generated
less revenue than anticipated was that OMB and Congress periodically
restricted the rent GSA could charge federal agencies.
In addition, you asked us if there were other issues in the AOUSC
testimony that could benefit from additional context. We would like to
elaborate on three issues. First, AOUSC stated several times that the
amount the judiciary pays in rent does not match the exact costs that GSA
incurs for the space it provides to the judiciary. For example, according
to the AOUSC testimony, GSA's pricing policy allows it to include local
real estate taxes in calculating rents for tenants in federally owned
facilities, even though the federal government is exempt from such
charges. One of the major purposes of the Public Buildings Act Amendments
of 1972, which established FBF, was to finance the real property and
related activities of GSA by requiring agencies to pay rent to GSA for
deposit into FBF. By law, rent is based on approximate commercial charges
for comparable space and services and was chosen over cost recovery to
produce more income so that the fund could finance construction and
13 GAO, The Disinvestment in Federal Office Space, GAO/T-GGD-90-24
(Washington, D.C.: Mar. 20,
1990).
14 GAO/GGD-90-11.
15 GAO, DOD Rental Payments to GSA, GAO/T-GGD-92-31 (Washington, D.C.:
Apr. 8, 1992).
16 GAO, Federal Real Property: Key Acquisition and Management Obstacles,
GAO/T-GGD-93-42
(Washington, D.C.: July 27, 1993).
17 GAO, Federal Buildings Fund Limitations, GAO/GGD-93-34R (Washington,
D.C.: Apr. 5, 1993).
major repairs. The rate that GSA charges agencies for rent is approved by
OMB; is based on market appraisals of fully serviced rental values, which
reflect what a private sector owner would charge for the space; and
includes values for taxes, depreciation, and liability insurance charges
paid in the private sector.
Second, the AOUSC testimony notes that Congress paid for courthouses built
from fiscal year 1990 through fiscal year 2004 through direct
appropriations into FBF. We found that Congress can make and often did
make supplemental appropriations into FBF over this period. However, this
supplemental funding was not tied directly to any specific projects or
types of projects. According to the relevant appropriations acts, the
additional amounts are being deposited into FBF to carry out the purposes
of the fund. Moreover, according to the statute establishing FBF and the
relevant appropriations acts, funds in FBF are available to GSA for real
property management functions, including space acquisition and management
functions. Thus, the direct appropriations into the fund cover more real
property activities than funding new courthouses, as AOUSC maintains.
Third, it is important to note that AOUSC's analysis of other agencies'
rent payments may not capture the full complexity of the rent issue. Under
the law, courthouses are listed as public buildings under the control of
the GSA Administrator and GSA is required by law to charge the judiciary
for the space and services provided to it. Certain buildings are
specifically exempted by law from GSA management and control, including
the Capitol Building and the surrounding House and Senate office
buildings, the Main Treasury Building, and buildings located on the
grounds of a Department of Defense (DOD) facility. Thus, the legislative
branch, the Treasury Department, and DOD do not pay rent into FBF or
receive services from GSA for these properties. However, landowning
agencies do pay to maintain their own facilities out of their budgets.
Because the judicial branch is not statutorily exempt from GSA's
management, the judiciary is required to pay rent into FBF for the space
it occupies and the services it receives.
Question 8. What types of data would GAO require to conduct an accurate
and effective space utilization study of courtrooms?
GAO has not developed criteria for determining effective courtroom
utilization, but we have recommended that the judiciary do so.
Specifically, our 1997 recommendations provided the judiciary with an
analytical approach for determining how many new courtrooms should be
built. This approach took into account courtroom usage and other factors.
The judiciary needs to design and implement cost-effective research for
determining the number and types of courtrooms needed, as well as whether
each district judge needs a dedicated courtroom. Such research should
include
o establishing criteria for determining effective courtroom utilization
and a mechanism for collecting and analyzing data at a representative
number of locations so that trends can be identified over time and better
insights obtained on court activity and courtroom usage;
o designing and implementing a methodology for capturing and analyzing
data on latent usage, courtroom scheduling, and other factors that may
substantially affect the relationship between the availability of
courtrooms and judges' ability to effectively administer justice;
o using these data and criteria to explore whether the practice of
assigning one judge per courtroom is needed to promote efficient courtroom
management or whether other courtroom assignment alternatives exist; and
o establishing an action plan with time frames for implementing and
overseeing these efforts.18
In 2000, we reviewed and commented on part of a May 2000 Ernst & Young
study on the judiciary's space facilities programs, specifically the part
of the study pertaining to courtroom use and sharing. 19 We determined
that this study was not designed to provide the type of data and analysis
we and other research organizations such as the Rand Institute for Civil
Justice and the Federal Judicial Center, the judiciary's research arm,
have determined would be needed to help resolve the courtroomsharing
issue.
We are sending copies of this report to the Administrator, GSA, and the
Director, AOUSC. We will make copies available to others on request. The
report is also available on GAO's Web site at www.gao.gov. If you have any
questions, please contact me on (202) 512-2834 or at goldsteinm@gao.gov.
Mark L. Goldstein
Director, Physical Infrastructure Issues
(543141)
18 GAO, Courthouse Construction: Better Courtroom Use Could Enhance
Facility Planning and
Decisionmaking, GAO/GGD-97-39 (Washington, D.C.: May 19, 1997).
19 GAO-01-70.
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