Federal Courthouses: Rent Increases Due to New Space and Growing 
Energy and Security Costs Require Better Tracking and Management 
(22-JUN-06, GAO-06-892T).					 
                                                                 
The judiciary pays over $900 million in rent annually to GSA for 
court-related space, representing a growing proportion of the	 
judiciary's budget. The judiciary's rent payments are deposited  
into GSA's Federal Buildings Fund (FBF), a revolving fund used to
finance GSA's real property services, including the construction 
and repair of federal facilities under GSA control. In December  
2004, the judiciary requested a $483 million dollar permanent,	 
annual rent exemption which GSA denied, saying that it undermined
the intent of FBF and that GSA was unlikely to obtain		 
appropriations to replace lost FBF income. GAO reviewed (1)	 
recent trends in the judiciary's rent and space occupied and (2) 
challenges that the judiciary faces in managing its rent costs.  
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-06-892T					        
    ACCNO:   A55850						        
  TITLE:     Federal Courthouses: Rent Increases Due to New Space and 
Growing Energy and Security Costs Require Better Tracking and	 
Management							 
     DATE:   06/22/2006 
  SUBJECT:   Budget obligations 				 
	     Federal courts					 
	     Federal property management			 
	     Interagency relations				 
	     Rent policies					 
	     Rental rates					 
	     Federal Buildings Fund				 

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GAO-06-892T

     

     * Background
     * Increases in Square Footage and Operating and Security Costs
     * Judiciary Faces a Number of Challenges but Could Take Action
     * Recommendations
     * Agency Comments
     * Scope and Methodology
     * GAO Contacts and Staff Acknowledgements
          * Order by Mail or Phone

Testimony

Before the Subcommittee on Economic Development, Public Buildings and
Emergency Management, Committee on Transportation and Infrastructure,
House of Representatives

United States Government Accountability Office

GAO

For Release on Delivery Expected at 11:00 a.m. EDT

Thursday, June 22, 2006

FEDERAL COURTHOUSES

Rent Increases Due to New Space and Growing Energy and Security Costs
Require Better Tracking and Management

Statement of Mark L. Goldstein, Director Physical Infrastructure Issues

GAO-06-892T

Mr. Chairman, Ranking Democratic Member, and Members of the Subcommittee:

Thank you for the opportunity to testify before you today on our work
related to federal courthouse rents. Since the early 1990s, the General
Services Administration (GSA) and the federal judiciary1 have undertaken a
multibillion dollar courthouse construction initiative to address what the
judiciary has identified as growing needs. According to the Administrative
Office of the U.S. Courts (AOUSC), the judiciary's workload has grown
substantially and the number of court staff has doubled since 1985. The
judiciary pays over $900 million in rent annually to GSA to occupy
court-related space, and this amount represents a growing proportion of
the judiciary's budget. The rent payments, which by law approximate
commercial rates, are deposited into GSA's Federal Buildings Fund (FBF).
With slightly over 20 percent of its budget allocated for rent payments,
in December 2004, the judiciary requested a $483 million permanent, annual
exemption from rent payments to GSA so that according to judiciary
officials, the judiciary would not have to cut personnel to pay the rent.
In denying the judiciary's requested rent exemption, GSA noted that FBF
was designed to encourage efficient space utilization by making agencies
accountable for the space they occupy, and that it is unlikely GSA could
obtain direct appropriations to replace lost FBF income. In June 2005, we
testified2 that federal agencies' rent payments provided a relatively
stable, predictable source of revenue for FBF, but that this revenue has
not been sufficient to finance both growing capital investment needs and
the cost of leased space. In fact there have been several direct
appropriations to FBF to cover this funding gap. We also found that
previous rent exemptions, such as the one requested by the judiciary,
hampered GSA's ability to generate sufficient revenue for needed capital
investment. You asked us to review the judiciary's courthouse rent costs.

Today my testimony will discuss (1) recent trends in the judiciary's rent
payments and square footage occupied; and (2) challenges that the
judiciary faces in managing its rent costs. My statement is based on our
report that will also be released today.3 In summary, we found the
following:

1 The federal judiciary is comprised of 94 judicial districts organized
around state boundaries and grouped into 12 regional circuits, each of
which has a United States Court of Appeals. There is also a 13th Circuit,
the Court of Appeals for the Federal Circuit, which has nationwide
jurisdiction to hear appeals in specialized cases, such as those involving
patent laws and cases decided by the Court of International Trade and the
Court of Federal Claims.

2 GAO, Courthouse Construction: Overview of Previous and Ongoing Work,
GAO-05-838T (Washington, D.C.: June 21, 2005).

           o  About two-thirds of the judiciary's $210 million rent increase
           from fiscal years 2000 through 2005 is attributable to a 19
           percent increase in net square footage. The remaining increase is
           attributable to disproportionately high increases in security and
           operating costs. We also found that neither the judiciary nor GSA
           had routinely and comprehensively analyzed the factors influencing
           the rent increases. In the report released with this testimony, we
           recommended that the judiciary begin tracking and analyzing rent
           trends in order to improve its understanding and ability to manage
           its rent costs. The judiciary agreed that tracking trends is
           necessary, but said that the specific types of data we recommended
           would not be particularly useful for program planning, management,
           or budgeting purposes.
           o  The judiciary faces several challenges to managing its rent
           costs including costly architectural and structural requirements
           for modern courthouses, a lack of incentives for efficient space
           use, and a lack of space allocation criteria for appeals and
           senior district judges. AOUSC also identified several challenges
           in addition to the ones we identified, including statutorily
           designated places of holding court, the benefits to GSA and the
           Federal Buildings Fund of backfilling courthouses with other
           courts, and inconsistencies in the funding stream for courthouse
           construction projects. In our report released with this testimony,
           we recommended that the judiciary establish incentives to
           encourage local decision makers to use space efficiently and
           improve its space allocation criteria in a number of ways. The
           judiciary disagreed that additional space allocation criteria are
           needed for appeals courts and senior judges, and said that it has
           already started updating its space allocation criteria related to
           technological advancements and plans to consider other changes in
           the future.

           Federal agencies, including the judiciary, that operate in
           facilities under the control and custody of GSA are required to
           pay rent for the space they occupy. Rent payments, which by law
           must approximate commercial rates, are deposited into the FBF,
           which is a revolving fund that GSA uses to provide a range of real
           property services, including maintenance, repairs, and
           alterations, to space occupied by federal agencies. GSA, through
           FBF, encourages federal agencies to be accountable for the space
           they use by requiring them to budget and pay for their own space
           requirements. A committee report accompanying the enactment of FBF
           noted that because each agency would have to budget for its space
           needs, doing so would promote more efficient and economical use of
           space by government agencies.4 The judiciary's rent payments
           represent roughly 15 percent of all rent payments made into FBF,
           making it one of the two largest contributors.5

           On the basis of a rent pricing policy introduced in the late
           1990s, the rent GSA charges is composed principally of shell rent,
           operating expenses, tenant improvements, and security costs. These
           components account for over 96 percent of the judiciary's rent
           bill payments in fiscal year 2005.

           o  The shell rent represents the cost of using the structure, base
           building systems, concrete floor, and basic wall and ceiling
           finishes and is the largest rent component, representing 60
           percent of the judiciary's annual rent bill payments in fiscal
           year 2005.6 For most government-owned properties, shell rent does
           not represent the actual costs, but is based instead on comparable
           private sector commercial rents in the local commercial market.
           o  Tenant improvements reflect customizing space for that tenant
           and can include private offices, special type spaces, floor
           covering, doors, and wood finishes. The tenant is responsible for
           deciding how to finish the space beyond some basic minimum
           standards and thus has control over much of the cost. GSA
           officials have said that the judiciary has the highest costs for
           tenant improvements in its inventory because of the level of
           finishes needed in federal courthouses. Unlike the other rent
           components, tenant improvement costs are removed from the rent
           bill once the tenant has completely paid for them.
           o  Operating costs-which cover cleaning; general maintenance; and
           heating, air conditioning, and other utilities-are set as part of
           the market appraisal for the shell rent in owned space. But unlike
           the shell rent, operating costs are adjusted annually for
           inflation in between appraisals.
           o  Until fiscal year 2005, the judiciary paid Federal Protective
           Service (FPS) security costs to GSA as part of its rent payment.
           Starting in fiscal year 2005, however, the judiciary began paying
           these security costs directly to the Department of Homeland
           Security (DHS) after FPS was transferred to that department.
           However, since FPS security costs still exist, and they were an
           important part of rent for all of the other years we analyzed, we
           included these costs as if they were still part of annual rent
           bill payments for fiscal year 2005.
           o  Rent is also composed of several other components, including
           fees for parking, building joint use, antennas, and GSA's Public
           Buildings Service. These other components comprised about 4
           percent of the judiciary's entire rent bill in fiscal year 2005.

           The Judicial Conference of the United States (Judicial Conference)
           is the judiciary's principal policy making body. The Judicial
           Conference works in coordination with AOUSC, which is responsible
           for administering the federal judiciary's budget as well as
           performing other programmatic and administrative functions, such
           as paying the judiciary's rent bill from its annual appropriations
           from Congress. Each circuit has a judicial council, which is
           composed of federal judges in that circuit, and the council has
           the authority to determine the need for all space accommodation
           within its circuit. As such, the district, bankruptcy, and appeals
           courts occupy space in courthouses or lease space in other federal
           or private office buildings. The district courts are the trial
           courts of the federal court system, housing both district and
           magistrate judges. They occupy the most space within the federal
           judiciary. The district courts have jurisdiction to hear nearly
           all categories of federal cases, including both civil and criminal
           matters. The federal judiciary has exclusive jurisdiction over
           bankruptcy cases, which are overseen by bankruptcy judges. The
           court of appeals from each circuit hears appeals from the district
           courts located within its boundaries, as well as appeals from
           decisions of federal administrative agencies. Figure 1 illustrates
           the rentable square feet distribution within the federal
           judiciary.

           Figure 1: Space Distribution within the Federal Judiciary in
           Fiscal Year 2005

           Note: The remaining space is composed of AOUSC, the Federal Public
           Defender's Office, and other specialized federal courts.

           The federal judiciary's rental obligations for federally owned and
           leased space have steadily risen from $780 million to $990
           million, or 27 percent from fiscal years 2000 through 2005, after
           controlling for inflation using the Gross Domestic Product price
           index. During this period, the judiciary had a net increase in the
           amount of space it occupies, from 33.6 million to 39.8 million
           rentable square feet, which is a 19 percent increase nationwide.
           About two-thirds of the rent increase is attributable to this
           increase in square footage. Among the components of rent, shell
           (the building with basic infrastructure) grew proportionately with
           the amount of net space added-about 19 percent. However, increases
           in operating costs (driven by increases in energy costs) and
           security costs grew disproportionately higher than the percentage
           of net space added, thus contributing to the overall increase in
           rent (see figure 2). The costs of tenant improvements (finishes
           such as carpeting) increased at a slower rate than the amount of
           net space added. AOUSC disagreed with our methods for attributing
           costs to the judiciary's net growth in square footage. We continue
           to believe that our methods are sound.

           Figure 2: The Approximate Share of Judiciary Rent Increases
           Attributable to the Net Growth in Square Footage and Other Factors
           (Fiscal Years 2000 through 2005)

           Square footage and total rent growth occurred in all years,
           circuits, and courts (see figure 3). The judiciary's rent
           increases have outpaced those of other agencies located in GSA
           space, largely because the federal judiciary's square footage is
           growing faster than that of other agencies. However, the rate of
           operating cost growth was similar to that experienced by other
           agencies.7

                                   Background

3GAO, Federal Courthouses: Rent Increases Due to New Space and Growing
Energy and Security Costs Require Better Tracking and Management ,
GAO-06-613 (Washington, D.C.: June 22, 2006).

4H.R. Rep. No. 92-989, at 3 & 4 (1972).

5The other is the Department of Justice.

6According to GSA, it uses shell rent proceeds to finance the cost of
acquiring, repairing, altering, and operating buildings under the custody
and control of GSA.

    Increases in Square Footage and Operating and Security Costs have Driven
Increases in the Judiciary's Rent Bill from Fiscal Years 2000 through 2005

7 Interagency comparisons regarding security costs are not possible since
the methods used to secure federal courthouses differ from other agencies.

Figure 3: Percentage Net Change in Square Footage and Major Rent Bill
Components, by Judicial Circuit, Fiscal Years 2000 through 2005

Note: The Federal and District of Columbia circuits were included in the
aggregate statistics but are not listed in the map.

Much of the judiciary's recent growth in net square footage was caused by
the construction of new courthouses. New courthouses represent about 8.8
million rentable square feet of new space that the judiciary has taken
occupancy of since fiscal year 1998 (a larger timeframe than our rent
trend data). According to judiciary officials, much of the judiciary's
growth and accompanying space-related needs have been the result of
elevating workloads, such as increases experienced in civil case filings.
The judiciary's courthouse construction effort may continue. Before it
imposed a moratorium in 2005, postponing new courthouse construction
projects for two years, the judiciary indicated that it had 35 additional
courthouse construction projects planned for fiscal years 2005 through
2009, estimated to cost billions of dollars. According to AOUSC, these
projects will be subject to the judiciary's new asset management planning
process that will consider renovation and other ways to limit new
construction. As of May 2006, no final decisions had been made.

We found that neither the judiciary nor GSA had routinely and
comprehensively analyzed the factors influencing the rent increases. This
information could help the judiciary better understand the reasons behind
its rent increases, make more informed space allocation decisions in the
future, and identify errors in GSA's billing. Furthermore, the lack of a
full understanding of the reasons for increases in the judiciary rent, in
our view, contributed to growing hostility between the judiciary and GSA.
Conversely, GSA's lack of full understanding of the reasons for the rent
increases left it unable to justify them to the judiciary and other
stakeholders, such as Congress.

 Judiciary Faces a Number of Challenges but Could Take Actions to Better Manage
                            Its Future Rent Payments

The federal judiciary faces several challenges to managing its rent costs
including costly new construction requirements, a lack of incentives for
efficient space use, and a lack of space allocation criteria for appeals
and senior district judges. First, modern courthouses require structural
and architectural elements that make them among the most costly types of
federal space to construct. Chief among these elements are the three
separate circulation patterns for judges, prisoners, and the public that
the U.S. Marshals Service requires for security (see figure 4). These
construction costs necessitate rental rates under GSA's pricing policy
that are more expensive than the highest-quality office space in some
markets, including Denver, Colorado; Phoenix, Arizona; and Seattle,
Washington. This necessitates GSA using an approach for calculating rent
charges that is based on the costs to construct the building-known as
return on investment pricing-instead of an appraisal. The judiciary's
policy of providing one courtroom per district judge sets the number of
courtrooms needed in new federal courthouses and adds space requirements,
consequently increasing rent payments.

Figure 4: Sample Courtroom and Associated Support Spaces That Were Based
on Design Guide Criteria

The judiciary has initiated a rent validation effort, but it does not
address the lack of incentives for efficient space use at the circuit and
district levels. Because rent is paid centrally by AOUSC, circuits and
districts have few incentives to efficiently manage their space. An
example of the inefficiencies that may result is in the Eastern District
of Virginia, where the judiciary paid about $272,000 in 2005 to rent 4,600
square feet of office space for an appeals judge in McLean, Virginia, in
addition to paying for 4,300 square feet of chamber space originally
designated for that judge in the Albert V. Bryan U.S. Courthouse in nearby
Alexandria, Virginia. According to AOUSC, the judiciary has subsequently
pursued alternative uses for this chamber space. During site visits, we
observed multiple instances of unused or unassigned courtrooms, chambers,
and support spaces. Although planning and building for future needs may
limit alternative uses of space until it is occupied, some of this
underutilization is the result of outdated criteria, which stipulated the
existence of support areas, such as libraries, that in some cases are now
rarely used. In most cases, this was because judicial officers are
increasingly turning to electronic sources and research and keeping the
limited number of books they need in their chambers. However, since the
Design Guide provides space for law libraries, the districts we visited
all had them (see figure 5).

Figure 5: Law Library in the Evo A. Deconcini Courthouse in Tucson,
Arizona

Assigning space to appeals courts and senior district judges poses
challenges due to a lack of criteria, which can lead to variation and
inefficiencies and, thus, higher rent. Although the appeals court is
required by law to hold court in specific locations, the statute does not
indicate how much space it should occupy. For example, the judiciary plans
to increase the space the appeals courts occupy by taking over former
district courthouses in Richmond, Virginia, and Seattle, Washington, for
appeals court use, even though the appeals courts conduct court there once
a month or less. Circuit and district officials said that national
criteria for managing the space allocated to the appeals courts and senior
district judges could help limit the space assigned to them. In commenting
on the report associated with this testimony, AOUSC also identified
several challenges in addition to the ones we identified that we
subsequently incorporated into the report but did not evaluate. These
included statutorily designated places of holding court, the benefits to
GSA and the Federal Buildings Fund in backfilling courthouses with other
courts, and inconsistencies in the funding stream for courthouse
construction projects.

                                Recommendations

We made the following five recommendations to the judiciary in our report
associated with this testimony8 in order to help the federal judiciary
better understand and manage rent costs:

           1. Work with GSA to track rent and square footage trend data on an
           annual basis for the following factors:

                        o  rent component (shell rent, operations, tenant
                        improvements, and other costs) and security (paid to
                        the Department of Homeland Security);
                        o  judicial function (district, appeals, and
                        bankruptcy);
                        o  rentable square footage; and
                        o  geographic location (circuit and district levels).

This data will allow the judiciary to create a better national
understanding of the effect that local space management decisions have on
rent and to identify any mistakes in GSA data.

           2. Work with the Judicial Conference of the United States to
           improve the way it manages its space and associated rent costs.

                        A. Create incentives for districts/circuits to manage
                        space more efficiently. These incentives could take
                        several forms, such as a pilot project that that
                        charges rent to circuits and/or districts to
                        encourage more efficient space usage.
                        B. Revise the Design Guide to establish criteria for
                        the number of appeals courtrooms and chambers and the
                        space allocated for senior district judges and make
                        additional improvements to space allocation standards
                        related to technological advancements (e.g.,
                        libraries, court reporter space, and staff efficiency
                        due to technology) and decrease requirements where
                        appropriate.

8 GAO-06-613 .

                                Agency Comments

We provided a draft of the report that is being released today9 to GSA and
AOUSC for official review and comment and received written comments from
both. GSA agreed with the thrust of the report and concurred with our
recommendations, but expressed one concern. GSA felt it was more aware of
the reasons for rent increases than our draft portrayed. In commenting on
the report associated with this testimony, AOUSC said that it does not
believe tracking the data recommended by GAO would be useful-we disagree
with this assessment. AOUSC also said it is already implementing
incentives and updating its criteria, however the actions it identified do
not fully address our recommendations. For a more thorough discussion of
the agency comments, see the report associated with this testimony.10

                             Scope and Methodology

We conducted our work from May 2005 to May 2006 in accordance with
generally accepted government auditing standards. During our work, we
analyzed nationwide judiciary rent data generated from GSA's billing data,
reviewed laws and the regulation related to FBF and GSA's rent pricing
process and policies, and reviewed the U.S. Courts Design Guide and other
judiciary rent planning documents. Additionally, we conducted site visits
at federal courthouses in the following districts: Arizona, Eastern
Virginia, Maryland, Nebraska, Rhode Island, and Western Washington. We
selected Arizona, Nebraska, Rhode Island, and Western Washington because
they were in districts that experienced large overall rent increases from
fiscal years 2000 through 2005 and were geographically dispersed. We also
visited Maryland and Eastern Virginia court facilities while we were
designing this audit and included them in the review because they
contained a new courthouse, a renovated courthouse, and a courthouse that
was targeted for replacement. The findings from these courthouse visits
can not be generalized to the population of federal courthouses
nationwide. We interviewed district, magistrate, and bankruptcy judges;
officials from the AOUSC, which is the judiciary's administrative agency;
clerks, circuit executives, and other representatives from U.S. circuit
and district courts with authority over space and facilities; GSA
officials in headquarters and the regions; and other real property
management experts. We determined that the rent data were sufficiently
reliable for the purposes of our review.

9 GAO-06-613 .

10 GAO-06-613 .

Mr. Chairman and members of the Subcommittee, this concludes my prepared
statement, I would be pleased to respond to any questions that you or the
other Members of the Subcommittee may have.

                    GAO Contacts and Staff Acknowledgements

For further information about this testimony, please contact me at (202)
512-2834 or [email protected] . Keith Cunningham, Randy DeLeon, Bess
Eisenstadt, Brandon Haller, Grant Mallie, Susan Michal-Smith, Joshua
Ormond, Elizabeth Repko, David Sausville, and Gary Stofko made key
contributions to this statement.

(543176)

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Highlights of GAO-06-892T, a testimony before the Subcommittee on Economic
Development, Public Buildings and Emergency Management, Committee on
Transportation and Infrastructure, House of Representatives

June 2006

FEDERAL COURTHOUSES

Rent Increases Due to New Space and Growing Energy and Security Costs
Require Better Tracking and Management

The judiciary pays over $900 million in rent annually to GSA for
court-related space, representing a growing proportion of the judiciary's
budget. The judiciary's rent payments are deposited into GSA's Federal
Buildings Fund (FBF), a revolving fund used to finance GSA's real property
services, including the construction and repair of federal facilities
under GSA control. In December 2004, the judiciary requested a $483
million dollar permanent, annual rent exemption which GSA denied, saying
that it undermined the intent of FBF and that GSA was unlikely to obtain
appropriations to replace lost FBF income. GAO reviewed (1) recent trends
in the judiciary's rent and space occupied and (2) challenges that the
judiciary faces in managing its rent costs.

What GAO Recommends

In an associated report, GAO recommended that the judiciary (1) track rent
trends and (2) improve its management of space and associated costs by
providing incentives for efficient use and updating its space allocation
criteria. AOUSC strongly disagreed with our report and said that it does
not believe tracking data recommended by GAO would be useful. We believe
otherwise. AOUSC also said it is already implementing incentives and
updating its criteria, however, the actions it identified do not fully
address our recommendations. GSA generally agreed with the report.

The federal judiciary's rental obligations to GSA for courthouses have
increased from $780 million to $990 million or 27 percent from fiscal
years 2000 through 2005, after controlling for inflation-primarily due to
a simultaneous net increase in space from 33.6 million to 39.8 million
rentable square feet, a 19 percent increase nationwide. Much of the net
increase in space was the result of new courthouses that the judiciary has
taken occupancy of since 2000. According to the Administrative Office of
the U.S. Courts (AOUSC), the judiciary's workload has grown substantially
and the number of court staff has doubled since 1985. Shell rent (the
building with basic infrastructure) increased proportionately with square
footage growth, but operational (utilities and general maintenance) and
security costs grew disproportionately higher than square footage due to
external factors, such as increasing energy costs and security
requirements. Neither GSA nor the judiciary had routinely and
comprehensively analyzed the factors causing rent increases, making it
more difficult for the judiciary to manage increases.

The Approximate Share of Judiciary Rent Increases Attributable to Growth
in the Net Square Footage and Other Factors (Fiscal Years 2000 through
2005)

The federal judiciary faces several challenges to managing its rental
obligations, including costly new construction requirements, a lack of
incentives for efficient space use, and a lack of space allocation
criteria for appeals and senior judges. First, building enhancements, such
as three separate circulation patterns for judges, prisoners, and the
public, and structural and architectural elements make courthouses among
the most expensive federal facilities to construct in GSA's inventory,
often leading to higher rent payments. Second, the judiciary has begun a
rent validation effort intended to monitor GSA rent charges, but it does
not address the lack of incentives for efficient space management at the
circuit and district levels. An example of the inefficiencies that may
result is in the Eastern District of Virginia, where the judiciary paid
about $272,000 in 2005 to rent space for an appeals judge in McLean,
Virginia, in addition to paying for space designated for that judge in a
nearby federal courthouse that the judiciary later used for alternative
purposes. Finally, the lack of criteria for assigning courtrooms for
appeals and senior judges can contribute to inefficiencies in the amount
of space provided, which can result in higher rent payments.
*** End of document. ***