United States Department of Agriculture and General Services Administration—Consistency of Lease Incentives with the Miscellaneous Receipts Statute

Decision

Matter of: United States Department of Agriculture and General Services Administration—Consistency of Lease Incentives with the Miscellaneous Receipts Statute

File: B-334307

Date: August 15, 2023

The U.S. Department of Agriculture (USDA) relocated the National Institute of Food and Agriculture (NIFA) and the Economic Research Service (ERS) to Kansas City, Missouri. As part of the relocation, the General Services Administration (GSA) executed a lease whose price included “free rent” for the first 24 months of the lease. Under the miscellaneous receipts statute, agencies are required to deposit money received for the government in the general fund of the Treasury, unless otherwise authorized by statute. Neither USDA nor GSA received any funds because of the relocation or because of the lease containing the “free rent.” Rather, the “free rent” is a part of the lease’s fixed price which GSA considered in determining which lessor to select. As a result, neither agency violated the miscellaneous receipts statute.

This responds to a request for our decision regarding whether the U.S. Department of Agriculture (USDA) violated the miscellaneous receipts statute when it relocated the National Institute of Food and Agriculture (NIFA) and the Economic Research Service (ERS) to Kansas City, Missouri.[1]

In accordance with our regular practice, we contacted USDA and the General Services Administration (GSA) to seek factual information and the agencies’ legal views on this matter.[2] Both USDA and GSA provided responses to our inquiries.[3]

BACKGROUND

In August 2018, the Secretary of Agriculture announced USDA’s intention to relocate NIFA and ERS outside of the Washington, D.C. area.[4] On August 15, 2018, USDA requested Expressions of Interest from potential sites for the new ERS and NIFA headquarters location.[5] The request noted that USDA would consider “[l]ower costs and the potential of incentives to offset costs” when reviewing submissions.[6] USDA received 139 expressions of interest across 35 states.[7] In June 2019, USDA announced the selection of Kansas City as the new location for ERS and NIFA.[8] In its announcement, USDA highlighted $26 million in incentives that state and local entities offered.[9]

To support the relocation, GSA sought to lease office space for USDA’s use and issued a Request for Lease Proposals that closed August 7, 2019.[10] The advertisement stated:

The U.S. General Services Administration is not involved with, or a party to, any concessions or other incentives offered by state or local municipalities. Offerors shall coordinate any such concessions or other incentives with the local jurisdiction(s), as applicable, and price their rental rates accordingly in order for the Government to benefit from all economic incentives offered by state and/or local municipalities.[11]

The Request for Lease Proposals also directed offerors to include rent concessions in their offers and explained that the gross annual price would be adjusted to reflect “free rent.”[12]

On October 31, 2019, GSA signed a contract for the lease of office space.[13] The lease provided “free rent” for the first twenty-four months of the lease, resulting in no cost to the government for two years.[14] GSA subsequently signed occupancy agreements with NIFA and ERS for use of the leased space.[15]

On November 13, 2019, a USDA official signed a Memorandum of Agreement (MOA) with the State of Missouri and other state and local entities, memorializing the incentives that state and local entities offered to support the relocation.[16] The MOA notes that the incentives “are based on an assumed 253 employees for [ERS] . . . and 315 employees for [NIFA].”[17] The incentives generally fell into three categories: benefits accruing to USDA; benefits accruing to USDA employees; and benefits that would accrue to the lessor of space leased for USDA’s use.[18]

Regarding the first category of incentives, according to USDA, the agency has not accepted any funds under the MOA.[19] Nor has GSA accepted any incentives.[20] For benefits accruing to USDA employees, USDA employees were instructed not to accept any incentives unless the incentives were available to all federal employees, and USDA is unaware of any employees accepting incentives in contravention of that advice.[21] As a result, this decision does not address whether incentives offered to USDA employees would violate the miscellaneous receipts statute.

DISCUSSION

At issue here is whether USDA and GSA violated the miscellaneous receipts statute. We first consider whether either agency received funds, as such funds may be miscellaneous receipts. We then consider whether the lease and the MOA require a third party to bear the government’s legal liabilities in contravention of the miscellaneous receipts statute.

Under the miscellaneous receipts statute, an official receiving “money for the Government” must deposit the money in the Treasury. 31 U.S.C. § 3302(b). This requirement advances the primary purpose of the statute, which is to ensure that Congress retains control of the public purse, thereby protecting Congress’s constitutional power to appropriate public money. B-327830, Feb. 8, 2017; B‑325396, Feb. 23, 2015. Funds constitute “money for the Government” if they are to be used to bear the expenses of the government or to pay its obligations. B‑325396, Feb. 23, 2015. Here, neither USDA nor GSA has received any funds as a result of the relocation.[22]

However, agencies cannot circumvent the miscellaneous receipts statute’s requirements by structuring a transaction so that no agency employee ever receives the money. B-327830, Feb. 8, 2017 (A third-party could not pay an agency’s legal liabilities.); Motor Coach Industries v. Dole, 725 F.2d 958 (4th Cir. 1984) (fee receipts were “money for the Government” even where no agency employee received the fees). The key factor in determining whether a third party’s receipt of funds implicates the miscellaneous receipts statute is whether those funds reduce or eliminate a legal liability that would otherwise be borne by the agency.

We have addressed this issue in numerous cases, including ones involving contracts where an agency is legally obligated to make payments but has another party make the payments directly to the contractor. For example, among the functions of the Small Business Administration (SBA) was oversight of lenders who made SBA-guaranteed loans. B‑300248, Jan. 15, 2004. SBA used a contractor to assist with this oversight function. Id. Rather than paying the contractor from its appropriations, SBA required the lenders to pay a fee directly to the contractor. Id. Because these fees satisfied a government obligation arising from a contract, funds used to pay these contractors were “money for the Government” under the miscellaneous receipts statute. Id.

In another example, the Commodity Futures Trading Commission (CFTC) violated the miscellaneous receipts statute when it arranged for its landlords to pay CTFC’s legal liabilities. B-327830, Feb. 8, 2017. CFTC incurred obligations to make payments to third-party contractors, representing legal liabilities for the government. CFTC’s lease agreements required the landlords, rather than CFTC, to make the payments to the third-parties. Id. As a result, the landlords would discharge a legal liability of the government, and CFTC would avoid using its own appropriations to make the payments. These arrangements violated the miscellaneous receipts statute. See also B-265727, July 19, 1996 (Securities and Exchange Commission (SEC) violated the miscellaneous receipts statute when it arranged for a sub-lessee to make payments to satisfy SEC’s obligation to pay rent.).

In contrast, the receipt of services for a discounted price does not implicate the miscellaneous receipts statute, so long as the discount is not the result of a third party making payments the government would otherwise be legally required to make. For example, GSA entered into a no-cost contract for real estate brokerage services that did not violate the miscellaneous receipts statute. B-302811, July 12, 2004; B-291947, Aug. 15, 2003. Under the proposed contract, brokers would provide lease acquisition and related services to federal agencies without cost to the government, with the brokers’ compensation taking the form of commissions paid by lessors. The distinguishing feature of this arrangement was that GSA would have no financial liability to brokers, and the brokers would have no expectation of payment from GSA. B-302811, July 12, 2004. If a lessor failed to pay a broker, the broker would have no claim against GSA. Id. See also B-327830, Feb. 08, 2017 (negotiated reductions in monthly rent were legally permissible); 48 Comp. Gen. 497 (1969) (a rental contract with monthly rental credits applied during the final months of the rental period is acceptable).

Here, the incentives the lessor may receive as a result of USDA’s relocation do not violate the miscellaneous receipts statute. As a threshold matter, the federal government would not receive any incentive payments that a state or local entity may make to the lessor. Even so, we must consider whether these incentive payments reduce or eliminate a legal liability of the government.

To determine the extent of the government’s legal liability here, we look to the terms of the lease. The lease constitutes the entire agreement of the parties, so we need not consult other agreements to determine the amount of the government’s legal liability. [23] The lease requires the government to pay rent at a fixed price.[24] The lease does not incorporate the MOA between USDA and state and local entities or the incentives themselves.[25] The extent of the government’s legal liability, then, is the fixed price outlined in the lease.

Next, we consider whether the lessor incentives reduce or eliminate the government’s legal liability. Importantly, the lease does not make the fixed price contingent upon the lessor’s receipt of incentives from state and local entities and provides no concessions if such incentives fail to materialize.[26] This arrangement is akin to GSA’s real estate brokerage agreement, where GSA bore no financial responsibility if a lessor failed to pay a commission. B-302811, July 12, 2004; B‑291947, Aug. 15, 2003. Similarly, here, the lessor bears the risk, and the government’s legal liability does not change, if the offered incentives do not materialize. Therefore, incentives paid to the lessor are not a third-party payment made to reduce or eliminate the government’s legal liability.

Nor does the lease contemplate or require any third-party payments on GSA’s behalf. Similarly, we are unaware of any other agreements between GSA and third parties that would require the third party to make GSA’s rental payments. This distinguishes GSA’s lease from the agreements entered into by SBA and CFTC, which required third parties to bear costs that the government would otherwise have borne. See B‑300248, Jan. 15, 2004; B-327830, Feb. 8, 2017.

Instead, the finalized lease provides for 24 months of “free rent,” resulting in no cost to the government for the first two years of the lease.[27] This “free rent” is a part of the lease’s fixed price which GSA considered in determining which lessor to select. GSA accounted for offers of “free rent” in its assessment of bids by adjusting the gross annual price and selected a lessor based on these adjusted prices.[28] In this way, the “free rent” is similar to other concessions or discounts an offeror might propose to win a government contract.[29] GSA and the lessor incorporated the “free rent” into their agreement, and the “free rent” does not represent an amount that a third party will pay to the lessor to reduce the government’s legal liability. Therefore, GSA’s lease does not violate the miscellaneous receipts statute.

CONCLUSION

Neither USDA nor GSA violated the miscellaneous receipts statute when USDA relocated NIFA and ERS to the Kansas City region. Neither agency received any funds due to the relocation, and no third party is making payments to reduce or eliminate the government’s legal liabilities.

Edda Emmanuelli Perez
General Counsel