Concerns In Public Buildings And Improvements - Statutory
Section 3305(b) of title 40 authorizes GSA to alter public buildings.“Alter” includes “repairing, remodeling,improving, or extending or other changes in a public building.” 40 U.S.C. § 3301(a)(1)(B). As with construction, the term includes related planning, engineering, architectural work, and similar actions. 41 C.F.R. § 102-71.20. GSA may do the work itself or may carry out any authorized construction or alteration by contract if deemed to be “most advantageous to the Government.” 40 U.S.C. § 3305(c). GSA may delegate most of its construction functions.
40 U.S.C. § 3313. For projects whose estimated cost does not exceed $100,000, delegation is mandatory upon request.
The “except as provided in section 3305(b)” refers to 40 U.S.C. § 3305(b), which authorizes GSA to alter public buildings and to acquire land necessary to carry out the alterations, and then provides: “Approval under section 3307 of this title is not required for any alteration and acquisition authorized by this section for which the estimated maximum cost does not exceed $1,500,000.”
The project cost may be increased by up to 10 percent of the prospectus estimate without having to submit a revised prospectus. 40 U.S.C. § 3307(c). Either committee may rescind its approval in the case of a project for construction, alteration, oracquisition if an appropriation has not been made within 1 year after the date of approval. 40 U.S.C. § 3307(d).
GSA may adjust any dollar amount specified in section 3307 annually “to reflect a percentage increase or decrease in construction costs during the prior calendar year, as determined bythe composite index of construction costs of the Department of Commerce,” promptly reporting any such adjustments to the committees. 40 U.S.C. § 3307(g).
Funds will be available for the project, with or without compliance with 40 U.S.C. § 3307, if Congress specifically appropriates funds for the project, or if it can be clearly established that Congress knowingly included those funds in a lump-sum appropriation. Merely burying the project in budget justification material, however, is not enough.
Executive Order Requirement
The requirement in Executive Order No. 12072 to give preference to central business areas, discussed previously in section E of this chapter in connection with leasing, applies tosite selection under 40 U.S.C. § 3304. Exec. Order No. 12072, Federal Space Management, § 1-103, 43 Fed. Reg. 36,869 (Aug. 16, 1978). Therefore, it is within GSA’s discretion when soliciting sites for public building construction to limit consideration to a central business area.
Contract Authority Under Partial
A statute originally enacted in 1908, 40 U.S.C. § 3171, recognizes that, for any number of reasons, Congress may not wish to fully fund the construction of a public building up front. It provides: “Unless specifically directed otherwise, the Administrator of General Services may make a contract within the full limit of the cost fixed by Congressfor the acquisition of land for sites, or for the enlargement ofsites, for public buildings, or for the erection, remodeling, extension, alteration, and repairs of public buildings, even though an appropriation is made for only part of the amount necessary to carry out legislation authorizing that purpose.”
Note Above -- In accord with these principles is Maiatico v. United States,302 F.2d 880 (D.C. Cir. 1962), in which the court held that GSA had no authority to condemn an office building where GSA (1) had not obtained prospectus approval as required by 40 U.S.C. § 3307, and (2) purported to act under authority of a lump-sum appropriation which could not be demonstrated to include the building in question.
As noted earlier, any construction project requires architectural and engineering services, and 40 U.S.C. § 3308(a) authorizes GSA to procure those services. However, GSA must retain responsibility for all construction, including interpreting construction contracts, approving contract changes, certifying payment vouchers, and making final contract settlement. 40 U.S.C. § 3308(c). To the maximum extent feasible, construction should comply with one of the nationally recognized model building codes, and should take into consideration state and local zoning