Federal Courthouse Construction: Better Planning, Oversight, and Courtroom Sharing Needed to Address Future Costs
Published: 2010-09-29T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: The federal judiciary (judiciary) and the General Services Administration (GSA) are in the midst of a multi-billion dollar courthouse construction initiative, which has faced rising construction costs. For 33 federal courthouses completed since 2000, GAO examined (1) whether they contained extra space and any costs related to it; (2) how their actual size compares with the congressionally authorized size; (3) how their space based on the judiciary's 10-year estimates of judges compares with the actual number of judges; and (4) whether the level of courtroom sharing supported by the judiciary's data could have changed the amount of space needed in these courthouses. This testimony is based on GAO's June 2010 report; for that report, GAO analyzed courthouse planning and use data, visited courthouses, modeled courtroom sharing scenarios, and interviewed judges, GSA officials, and others.
section_title: What GAO Found
paragraphs: The 33 federal courthouses completed since 2000 include 3.56 million square feet of extra space consisting of space that was constructed (1) above the congressionally authorized size, (2) due to overestimating the number of judges the courthouses would have, and (3) without planning for courtroom sharing among judges. Overall, this space represents about 9 average-sized courthouses. The estimated cost to construct this extra space, when adjusted to 2010 dollars, is $835 million, and the annual cost to rent, operate and maintain it is $51 million. Twenty seven of the 33 courthouses completed since 2000 exceed their congressionally authorized size by a total of 1.7 million square feet. Fifteen exceed their congressionally authorized size by more than 10 percent, and 12 of these 15 also had total project costs that exceeded the estimates provided to congressional committees. However, there is no requirement to notify congressional committees about size overages. A lack of oversight by GSA, including not ensuring its space measurement policies were followed and a lack of focus on building courthouses within the congressionally authorized size, contributed to these size overages. For 23 of 28 courthouses whose space planning occurred at least 10 years ago, the judiciary overestimated the number of judges that would be located in them, causing them to be larger and costlier than necessary. Overall, the judiciary has 119, or approximately 26 percent, fewer judges than the 461 it estimated it would have. This leaves the 23 courthouses with extra courtrooms and chamber suites that, together, total approximately 887,000 square feet of extra space. A variety of factors contributed to the judiciary's overestimates, including inaccurate caseload projections, difficulties in projecting when judges would take senior status, and long-standing difficulties in obtaining new authorizations. However, the degree to which inaccurate caseload projections contributed to inaccurate judge estimates cannot be measured because the judiciary did not retain the historic caseload projections used in planning the courthouses. Using the judiciary's data, GAO designed a model for courtroom sharing, which shows that there is enough unscheduled courtroom time for substantial courtroom sharing. Sharing could have reduced the number of courtrooms needed in courthouses built since 2000 by 126 courtrooms--about 40 percent of the total number--covering about 946,000 square feet of extra space. Judges raised potential challenges to courtroom sharing, such as uncertainty about courtroom availability, but those with courtroom sharing experience overcame those challenges when necessary, and no trials were postponed. The judiciary has adopted policies for future sharing for senior and magistrate judges, but GAO's analysis shows that additional sharing opportunities are available. For example, GAO's courtroom sharing model shows that there is sufficient unscheduled time for 3 district judges to share 2 courtrooms and 3 senior judges to share 1 courtroom. The recommendations in GAO's related report include: GSA should (1) ensure courthouses are within their authorized size or provide notification when designed spaced exceeds authorized space (2) retain caseload projections to improve the accuracy of 10-year judge planning; and (3) establish and use courtroom sharing policies based on scheduling and use data. GSA and the judiciary agreed with most recommendations, but expressed concerns with GAO's methodology and key findings. GAO believes these to be sound, as explained in the report.

section_title: Letter
paragraphs: We are pleased to be here to discuss the results of our report on Federal  Courthouse Construction issued June 21, 2010. Since the early 1990s, the  General Services Administration (GSA) and the federal judiciary  (judiciary) have undertaken a multi-billion dollar courthouse construction  initiative that has resulted in 66 new courthouses or annexes, with 29  additional projects in various stages of development. However, rising costs  and other federal budget priorities threaten to stall the initiative. In 2008,  for example, we found that increases in construction cost estimates for the  Los Angeles, California courthouse had led to an impasse that has yet to  be resolved. Also, in fiscal year 2009, the judiciary’s rent payments totaled  over $970 million. The judiciary has sought to reduce the payments  through requests for rent exemptions from GSA and Congress through  internal policy changes, such as annually capping rent growth and  validating rental rates.
This testimony, based on our report, discusses, for 33 federal courthouses  completed since 2000, (1) whether the courthouses contain extra space  and any costs related to that space, (2) how the actual sizes of the  courthouses compare with the congressionally authorized sizes, (3) how  courthouse space based on the judiciary’s 10-year estimates of the number  of judges compares with the actual number of judges; and (4) whether the  level of courtroom sharing supported by data from the judiciary’s 2008  study of district courtroom sharing could have changed the amount of  space needed in these courthouses. To address these objectives, we  analyzed planning, construction, and budget documents associated with  all 33 federal courthouses or major annexes completed from 2000 through  March 2010. In addition, we selected 7 of the federal courthouses in our  scope to analyze more closely as case studies. We conducted the  courthouse construction performance audit on which I am testifying from  September 2008 to June 2010 in accordance with generally accepted  government auditing standards. Those standards require that we plan and  perform the audit to obtain sufficient, appropriate evidence to provide a  reasonable basis for our findings and conclusions based on our audit  objectives. We believe that the evidence obtained provides a reasonable  basis for our findings and conclusions based on our audit objectives. More  detail on our scope and methodology is available in the full report.
subsections: section_title: Background
paragraphs: The Administrative Office of the U.S. Courts is an organization within the  judicial branch which serves as the central support entity for federal  courts, and is supervised by the Judicial Conference of the United States.  The Judicial Conference serves as the judiciary’s principal policy-making  body and recommends national policies and legislation, including  recommending additional judgeships to Congress. The U.S. Courts Design  Guide (Design Guide) specifies the judiciary’s criteria for designing new  court facilities and sets the space and design standards for court-related  elements of courthouse construction. In 1993, the judiciary also developed  a space planning program called AnyCourt to determine the amount of  court-related space the judiciary will request for a new courthouse based  on Design Guide standards and estimated staffing levels. GSA and the  judiciary plan new federal courthouses based on the judiciary’s estimated  10-year judge and space requirements. For courthouses that are selected  for construction, GSA typically submits two detailed project descriptions,  or prospectuses, for congressional authorization: one for site and design  and the other for construction. Prospectuses are submitted to the Senate  Committee on Environment and Public Works and the House Committee  on Transportation and Infrastructure for authorization and Congress  appropriates funds for courthouse projects, often at both the design and  construction phases. GSA manages the construction contract and oversees  the work of the construction contractor. After courthouses are occupied,  GSA charges the judiciary and any other tenants rent for the occupied  space and for their respective share of common areas.
section_title: Extra Space in Courthouses Cost an Estimated $835 Million in Constant 2010 Dollars to Construct and $51 Million Annually to Rent, Operate, and Maintain
paragraphs: Thirty-two of the 33 federal courthouses completed since 2000 include  extra square feet of space, totaling 3.56 million square feet—overall, this  space represents about 9 average-sized courthouses. The estimated cost to  construct this extra space, when adjusted to 2010 dollars, is $835 million,  and the annual cost to rent, operate, and maintain it is $51 million. The  extra space and its causes are as follows:    1.7 million square feet caused by construction in excess of congressional    887,000 extra square feet caused by the judiciary overestimating the  number of judges the courthouses would have in 10 years; and   946,000 extra square feet caused by district and magistrate judges not  sharing courtrooms.
In addition to higher construction costs, the extra square footage in these  32 courthouses results in higher annual operations and maintenance costs,  which are largely passed on to the judiciary and other tenants as rent.  Based on our analysis of the judiciary’s rent payments to GSA for these  courthouses at fiscal year 2009 rental rates, the extra courtrooms and  other judiciary space increase the judiciary’s annual rent payments by $40  million. In addition, our analysis estimates that the extra space cost $11  million in fiscal year 2009 to operate and maintain. Typically, operations  and maintenance costs represent from 60 to 85 percent of the costs of a  facility over its lifetime, while design and construction costs represent  about 5 to 10 percent of these costs. Therefore, the ongoing operations  and maintenance costs for the extra square footage are likely to total  considerably more in the long run than the construction costs for this  extra square footage.
GSA cited concerns with our methodology. Our methodology applied  GSA’s policies and data directly from original documents and sources, and  our cost estimation methodology balanced higher and lower cost  construction spaces to create a conservative estimate of the costs  associated with the extra space in courthouses. We believe that our  findings are presented in a fair and accurate way and illustrate how past  problems with the courthouse program could affect future courthouse  projects.
section_title: Most Courthouses Exceed the Congressionally Authorized Size Due to a Lack of Oversight by GSA
paragraphs: Twenty-seven of the 33 federal courthouses constructed since 2000 exceed  their congressionally authorized size, resulting in about 1.7 million more  square feet than authorized. Fifteen of the 33 courthouses exceed their  congressionally authorized size by 10 percent or more. In all 7 of the case  study courthouses, the increases in building common and other space  were proportionally larger than the increases in tenant space, leading to a  lower building efficiency than GSA’s target of 67 percent. Efficiency is  important because, for a given amount of tenant space, meeting the  efficiency target helps control a courthouse’s gross square footage and  therefore its costs. According to GSA officials, controlling the gross  square footage of a courthouse is the best way to control construction  costs.
Twelve of the 15 courthouses that exceeded the congressionally  authorized gross square footage by 10 percent or more also had total  project costs that exceeded the total project cost estimate provided to  congressional authorizing committees. Four of the 15 courthouses had  total project costs that exceeded the estimate provided to the  congressional authorizing committees, at the construction phase, by about  10 percent or more. GSA’s annual appropriations acts include a provision  stating that GSA may increase spending for a project in an approved  prospectus by more than 10 percent if GSA obtains advance approval from  the Committee on Appropriations. While GSA sought approval from the  appropriations committees for the cost increases incurred for these 4  courthouses, GSA did not explain to these committees that the  courthouses were larger than authorized and therefore did not attribute  any of the cost increase to this difference. However, there is no statutory  requirement for GSA to notify congressional authorizing or appropriations  committees if the size exceeds the congressionally authorized square  footage.
GSA lacked sufficient controls to ensure that the 33 courthouses were  constructed within the congressionally authorized gross square footage.  Initially, GSA had not established a consistent policy for how to measure  gross square footage. GSA established a policy for measuring gross square  footage by 2000, but has not ensured that this space measurement policy  was understood and followed. Moreover, GSA has not demonstrated it is  enforcing this policy because all 6 courthouses completed since 2007  exceed their congressionally authorized size. According to GSA officials,  the agency did not focus on ensuring that the authorized gross square  footage was met in the design and construction of courthouses until 2007.
According to a GSA official, at times, courthouses were designed to meet  various design goals without an attempt to limit the size of the building  common or other space to the square footage allotted in the plans  provided to congressional authorizing committees – and these spaces may  have become larger to serve a design goal as a result. Another element of  GSA’s lack of oversight in this area was that GSA relied on the architect to  validate that the courthouse’s design was within the authorized gross  square footage without ensuring that the architect followed GSA’s policies  for how to measure certain commonly included spaces, such as atriums.  Although GSA officials emphasized that open space for atriums would not  cost as much as space completely built out with floors, these officials also  agreed that there are costs associated with constructing and operating  atrium space.
Though not a result of a lack of oversight, one additional contributor to  the construction of more tenant space than planned is that the judiciary’s  automated space planning tool, AnyCourt, incorporates a standard square  footage requirement for each district courtroom. However, according to  GSA’s space measurement policy, the amount of a courtroom’s square  footage doubles if the courtroom spans two floors. Without a mechanism  to adjust AnyCourt’s calculation of a planned courthouse’s square footage  to reflect GSA’s space measurement policy when the design includes two- story courtrooms, GSA may not request sufficient gross square footage for  courthouses with two-story courtrooms.
Recently, GSA has taken some steps to improve its oversight of the  courthouse construction process by clarifying its space measurement  policies and increasing efforts to monitor the size of courthouse projects  during the planning stages. In May 2009, GSA published a revised space  assignment policy to clarify and emphasize its policies on counting square  footage. In addition, according to GSA officials, GSA established a  collaborative effort in 2008 between its Office of Design and Construction  and its Real Estate Portfolio Management to establish policy and practices  for avoiding inconsistencies. It is not yet clear whether these steps will  establish sufficient oversight to ensure that courthouses are planned and  constructed within the congressionally authorized square footage.
section_title: Estimated Space Needs Exceeded Actual Space Needs, Resulting in Courthouses That Were Larger than Necessary
paragraphs: Of the 33 courthouses built since 2000, 28 have reached or passed their 10- year planning period and 23 of those 28 courthouses have fewer judges  than estimated. For these 28 courthouses, the judiciary has 119, or  approximately 26 percent, fewer judges than the 461 it estimated it would  have, resulting in approximately 887,000 extra square feet. The extra space  includes courtroom and chamber suites as well as the proportional  allocation of additional public, mechanical spaces, and sometimes secure,  inside parking space in new courthouses. We identified a variety of factors  that led the judiciary to overestimate the number of judges it would have  after 10 years, which include:  Inaccurate caseload growth projections: In a 1993 report, we questioned  the reliability of the caseload projection process the judiciary used. For  this report, we were not able to determine the degree to which inaccurate  caseload projections contributed to inaccurate judge estimates because  the judiciary did not retain the historic caseload projections used in  planning the courthouses. Judiciary officials at three of the courthouses  we visited indicated that the estimates used in planning for these  courthouses inadvertently overstated the growth in district case filings  and, hence, the need for additional judges.
Challenges predicting how many judges will be located in a courthouse  in 10 years: It is difficult to predict, for example, when a judge will take a  reduced case-load through senior status or leave the bench entirely. It is  also challenging to project how many requested judgeships will be  authorized, how many vacancies will be filled, and where new judges will  be seated.
The judiciary raised concerns that some extra space in courthouses exist  because the judiciary did not receive all the new judge authorizations it  requested. We recognize that some of the extra courtrooms reflect the  historic trend that the judiciary has not received all the additional  authorized judges it has requested.
section_title: Low Levels of Use Show That Judges Could Share Courtrooms, Reducing the Need for Future Courtrooms by More than One-Third
paragraphs: Our analysis indicates that courtroom sharing could have reduced the  number of courtrooms needed in 27 of the 33 district courthouses built  since 2000 by a total of 126 courtrooms—about 40 percent of the total  number of district and magistrate courtrooms constructed since 2000. In  total, not building these courtrooms, as well as, their associated support,  building common, and other spaces, would have reduced construction by  approximately 946,000 square feet. Most courthouses constructed since  2000 have enough courtrooms for all of the district and magistrate judges  to have their own courtrooms. According to the judiciary’s data,  courtrooms are used for case-related proceedings only a quarter of the  available time or less, on average. Using the judiciary’s data, we applied  generally accepted modeling techniques to develop a computer model for  sharing courtrooms. The model ensures sufficient courtroom time for all  case-related activities; all time allotted to noncase-related activities, such  as preparation time, ceremonies, and educational purposes; and all events  cancelled or postponed within a week of the event. The model shows the  following courtroom sharing possibilities: 3 district judges could share 2  courtrooms, 3 senior judges could share 1 courtroom, and 2 magistrate  judges could share 1 courtroom with time to spare.
During our interviews and convening of an expert panel on courtroom  sharing, some judges remained skeptical of sharing and raised potential  challenges to courtroom sharing, but other judges with sharing experience  said they have overcome those challenges when necessary without  postponing trials. The primary concern judges cited was the possibility  that all courtrooms could be in use by other judges and a courtroom might  not be available. To address this concern, we programmed our model to  provide more courtroom time than necessary to conduct court business.  Additionally, most judges with experience in sharing courtrooms agreed  that court staff must work harder to coordinate with judges and all  involved parties to ensure everyone is in the correct courtroom at the  correct time. Judges who share courtrooms in one district also said that  courtroom sharing coordination is easier when there is a great deal of  collegiality among judges. Another concern about sharing courtrooms was  how the court would manage when judges have long trials. However, when  the number of total trials is averaged across the total number of judges,  each judge has approximately 15 trials per year, with the median trial  lasting 1 or 2 days. Therefore, it is highly unlikely that all judges in a  courthouse will simultaneously have long trials. Another concern stated  was that sharing courtrooms between district and magistrate judges was  difficult due to differences in responsibilities and courtroom size. To  address this concern, our model separated district and magistrate judges  for sharing purposes.
In 2008 and 2009, the Judicial Conference adopted sharing policies for  future courthouses under which senior district and magistrate judges will  share courtrooms at a rate of two judges per courtroom plus one  additional duty courtroom for courthouses with more than two magistrate  judges. Additionally, the conference recognized the greater efficiencies  available in courthouses with many courtrooms and recommended that in  courthouses with more than 10 district judges, district judges also share.  Our model’s application of the judiciary’s data shows that more sharing  opportunities are available.
The judiciary stated that at the time the 33 courthouses we reviewed were  planned, the judiciary’s policy was for judges not to share courtrooms and  that it would be more appropriate for us to apply that policy. Our  congressional requesters specifically asked that we consider how a  courtroom sharing policy could have changed the amount of space needed  in these courthouses. The judiciary also raised concerns with the  assumptions and methodology used in developing the courtroom sharing  model. We carefully documented the data and parameters throughout our  report so that our model could be replicated by anyone with access to the  judiciary’s data and familiarity with discrete event simulation. Our model  provides one option for developing a sharing policy based on actual time  during which courtrooms are scheduled and used.
section_title: Conclusions and Prior Recommendations
paragraphs: It is important for the federal judiciary to have adequate, appropriate,  modern facilities to carry out judicial functions. However, the current  process for planning and constructing new courthouses has resulted in the  33 federal courthouses built since 2000 being overbuilt by more than 3.5  million square feet. This extra space not only cost about $835 million in  constant 2010 dollars to construct, but has additional annual costs of  about $51 million in operations and maintenance and rent that will  continue to strain GSA’s and the judiciary’s resources for years to come.  This extra space exists because the courthouses, as built, are larger than  those congressionally authorized; contain space for more judges than are  in the courthouses at least 10 years after the space was planned, and, for  the most part, were not planned with a view toward judges sharing  courtrooms.
Thus, in our report we recommended that the Administrator of GSA take  the following three actions:    Establish sufficient internal control activities to ensure that regional GSA  officials understand and follow GSA’s space measurement policies  throughout the planning and construction of courthouses. These control  activities should allow for accurate comparisons of the size of a planned  courthouse with the congressionally authorized gross square footage  throughout the design and construction process.
To avoid requesting insufficient space for courtrooms based on the  AnyCourt model’s identification of courtroom space needs, establish a  process, in cooperation with the Director of the Administrative Office of  the U.S. Courts, by which the planning for the space needed per courtroom  takes into account GSA’s space measurement policy related to two-story  courtrooms when relevant.
Report to congressional authorizing committees when the design of a  courthouse exceeds the authorized size by more than 10 percent, including  the reasons for the increase in size.
We also recommend that the Director of the Administrative Office of the  U.S. Courts, on behalf of the Judicial Conference of the United States take  the following three actions:    Retain caseload projections for at least 10 years for use in analyzing their  accuracy and incorporate additional factors into the judiciary’s 10-year  judge estimates, such as past trends in obtaining judgeships.
Expand nationwide courtroom sharing policies to more fully reflect the  actual scheduling and use of district courtrooms.
Distribute information to judges on positive practices judges have used to  overcome challenges to courtroom sharing.
GSA and the judiciary agreed with most of the recommendations, but  expressed concerns with GAO’s methodology and key findings. GSA  concurred with our recommendation to notify the appropriate  Congressional committees when the square footage increase exceeds the  maximum identified in the prospectus by 10 percent or more. GSA did not  concur with our recommendation to establish internal controls to ensure  that regional GSA officials understand and follow GSA’s space  measurement policies throughout the planning and construction of  courthouses; stating that their current controls and oversight are  sufficient. The judiciary concurred with our recommendation to expand  sharing policies based on a thorough and considered analysis of the data  but raised concerns related to the applicability of our model as guidance  for its system. The judiciary did not comment directly on its plans to retain  caseload projection but stated that it will continue to look for ways to  improve its planning methodologies. Finally the judiciary did not provide  comment on its intent to distribute information on the positive practices  judges have used to overcome challenges to courtroom sharing.
Mr. Chairman, this concludes our testimony. We are pleased to answer any  questions you might have.
section_title: Contact Information
paragraphs: For further information on this testimony, please contact Mark L.  Goldstein, (202) 512-2834 or by e-mail at goldsteinm@gao.gov. Contact  points for our Offices of Congressional Relations and Public Affairs may  be found on the last page of this statement. Individuals making key  contributions to this testimony include Keith Cunningham, Assistant  Director; Susan Michal-Smith; and Jade Winfree.
This is a work of the U.S. government and is not subject to copyright protection in the  United States. The published product may be reproduced and distributed in its entirety  without further permission from GAO. However, because this work may contain  copyrighted images or other material, permission from the copyright holder may be  necessary if you wish to reproduce this material separately.