GAO-05-941R Courthouse Construction Hearing Questions

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). 

United States Government Accountability Office

Washington, DC 20548 
Page 2 GAO-05-941R Courthouse Construction Hearing Questions

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 
Page 3 GAO-05-941R Courthouse Construction Hearing Questions

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 

Agency, address Justification 

Estimated 

forgone 

annual rent 

Smithsonian Institution, National 

Museum of the American Indian, 

New York, NY 

Legislatively mandated exemption. $4,566,632 

U.S. Postal Service, 271 

Cadman Plaza, New York, NY 

GSA granted an exemption to the Postal Service as part 

of a 99-year rent-free agreement with GSA as a condition 

of the negotiated sale of the building in lieu of a transfer of 

funds from GSA. 

$1,820,000 

National Building Museum, 5th 

and F Sts., Washington, DC 

Legislatively mandated exemption. $1,300,000 

Woodrow Wilson Center, 1300 

Pennsylvania Ave., Washington, 

DC 

GSA granted an exemption based on funding limitations 

imposed by Congress and the compelling purpose of 

memorializing the nation’s 28th President. 

$5,400,000 

Department of Commerce, 14th 

St. and Constitution Ave., 

Washington, DC 

GSA granted an exemption covering the area of the 

building that is maintained at the expense of the tenant 

agency. 

$400,000 

National Imaging and Mapping 

Agency, M St., Washington, DC 

GSA granted a rent exemption of 50 percent because the 

tenant agreed to pay all maintenance, capital 

improvements, and security expenses due. 

$7,038,552 

 

3

 GAO, Federal Office Space: Increased Ownership Would Result in Significant Savings, GAO/GGD90-11 (Washington, D.C.: Dec. 22, 1989). 
Page 4 GAO-05-941R Courthouse Construction Hearing Questions

Agency, address Justification 

Estimated 

forgone 

annual rent 

Department of Agriculture, 

multiple locations, Washington, 

DC 

GSA granted a 100-percent rent exemption for the 

tenant’s three headquarters buildings for fiscal years 1996 

through 2006 to allow the tenant to accumulate funds 

needed for major repairs on these buildings. The tenant 

will then pay for the repairs. 

$52,406,234 

Railroad Retirement Board, 

nationwide locations 

GSA granted a partial rent exemption so that the tenant 

would pay only the actual costs for these buildings 

through fiscal year 2013. 

$3,655,063 

Centers for Medicare and 

Medicaid Services, nationwide 

locations 

GSA granted a partial rent exemption so that the tenant 

would pay only the actual costs for these buildings 

through fiscal year 2013. 

$15,717,264 

Social Security Administration, 

Washington, DC 

GSA granted a partial rent exemption so that the tenant 

would pay only for the actual costs for these buildings 

through fiscal year 2013. 

$72,417,477 

Department of State, 1801 

Pennsylvania Ave., Washington, 

DC 

GSA granted an exemption for space used by the 

President’s G-8 Economic Summit staff from August 2004 

to November 2004 because neither the Department of 

State nor the G-8 Economic Summit has received 

appropriated funding for rent payments to GSA. 

$1,330,740 

International Broadcasting 

Board of Governors, 

Washington, DC 

GSA granted an exemption in 2004 based on tenant 

certification that it did not have funds available to meet the 

obligation. A new long-term occupancy agreement is 

being negotiated. 

$1,016,195 

Presidential and Armed Forces 

Inaugural Committees, Mary E. 

Switzer Building, Washington, 

DC 

GSA granted an exemption in 2004 because it found that 

it was not practical or feasible for the tenant to pay the 

rent. 

$2,415,440 

U.S. Election Assistance 

Commission, Washington, DC 

GSA granted an exemption for fiscal year 2004 because 

the tenant was appropriated only 12 percent of its 

authorized budget and did not have sufficient money to 

pay its rent. 

$100,060 

 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 

less than leasing the same facilities from the private sector over a 30-year period.4

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). 
Page 5 GAO-05-941R Courthouse Construction Hearing Questions

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). 
Page 6 GAO-05-941R Courthouse Construction Hearing Questions

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: 

• 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. 

• Clearly define project scope and refine construction cost estimates before 

requesting project approval and final funding levels. 

• 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. 

• 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. 
Page 7 GAO-05-941R Courthouse Construction Hearing Questions

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. 

• 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 CourtroomSharing 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). 
Page 8 GAO-05-941R Courthouse Construction Hearing Questions

• 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

• 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. 

• 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. 

• 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). 
Page 9 GAO-05-941R Courthouse Construction Hearing Questions

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 

• 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; 
Page 10 GAO-05-941R Courthouse Construction Hearing Questions

• 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; 

• 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 

• 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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