Federal Courthouses: Recommended Construction Projects Should Be Evaluated under New Capital- Planning Process
Released: 2013-04-17T00:00:00

Letter

Background

The U.S. district courts are the trial courts of the federal court system. There are 94 federal judicial districts—at least one for each state, the District of Columbia, and four U.S. territories—organized into 12 regional circuits. Each circuit has a court of appeals whose jurisdiction includes appeals from the district and bankruptcy courts located within the circuit, as well as appeals from decisions of federal administrative agencies.The Administrative Office of the United States Courts (AOUSC) within the judicial branch carries out a wide range of services for the federal judiciary, including capital-planning. The Judicial Conference of the United States (Judicial Conference) supervises the Director of the AOUSC and is the principal policy-making body for the federal judiciary and recommends national policies and legislation on all aspects of federal judicial administration.

Federal courthouses can house a variety of appellate, district, senior district, magistrate, or bankruptcy judges as well as other court and non- court-related tenants. Prior to 2008, the judiciary did not require judges to share courtrooms, except in situations where the courthouse was out of space. courtroom-sharing (1) between senior district judges and (2) between magistrate judges. In 2011, the Judicial Conference adopted a courtroom- sharing policy for bankruptcy judges. These policies apply to new courthouse projects and existing courthouses when there is a new space need that cannot otherwise be accommodated. (See app. II for more information on judiciary’s courtroom-sharing policies.) The judiciary has also been studying the feasibility of an appropriate sharing policy for district judges in courthouses with more than 10 district judges, but has not yet finalized a policy and could not tell us when or if it expected to do so. Our 2010 report examined judiciary data on courtroom usage and found that there are additional opportunities for significant cost savings through courtroom-sharing, particularly for district judges.

Appellate judges, however, have always shared courtrooms because they sit in panels of three or more. operational deficiencies in the existing courthouse, and (4) the current number of judges who do not have a permanent courtroom and chambers in the existing courthouse, plus the projected number of judges over the 10-year planning period who will not have a courtroom and chambers. From fiscal years 2005 to 2006, as a cost containment initiative, the judiciary imposed a moratorium on new courthouse construction while it reevaluated its capital-planning process.

In 2008, the judiciary began using a new capital-planning process, called the Asset Management Planning (AMP) process, to assess, identify, and rank its space needs. According to judiciary officials, the AMP process addresses concerns about growing costs and incorporates best practices related to capital-planning. The AMP process includes several steps beginning with the completion of a district-wide Long Range Facilities Plan (LFRP). Collectively, the AMP process: documents courthouse space conditions and district space needs develops housing strategies that can include construction of a new based, in part, on the judiciary’s AMP process rules and building standards as specified in the U.S. Courts Design Guide; identifies space needs on a building-specific and citywide basis; and courthouse or annex and renovation projects.

The AMP process results in an urgency score for construction or renovation based primarily on the current and future need for courtrooms and chambers and the condition assessment of the existing building (see app. III). The AMP process establishes criteria for qualifying for new courthouse construction, such as requiring that an existing courthouse have a chamber for each judge and needing two or more additional courtrooms. Judiciary officials told us that unlike the previous capital- planning process, a new courthouse could no longer be justified as part of the AMP process based solely on security or operational deficiencies. The judiciary has chosen to improve security within existing courthouse rather than replace them with new courthouses. After the Judicial Conference identifies courthouse projects, GSA conducts feasibility studies to assess alternatives for meeting the judiciary’s space needs and recommends a preferred alternative. The judiciary adopts the GSA recommended alternative, which may differ from the alternative recommended in the AMP process. For example, a project may not qualify for new courthouse construction under the AMP process, but GSA may determine through its feasibility study that new construction is the most cost-efficient, viable solution. See figure 1 for the judiciary’s current process for selecting and approving new courthouse construction projects.

Part of the judiciary’s capital-planning—both the previous and current processes—has been to periodically communicate its facility decisions for construction projects via a document known as the Five Year Courthouse Project Plan (5-year plan). The 5-year plan is a one-page document that lists proposed projects by fiscal year and the estimated costs for various project phases (site acquisition, design, or construction) as approved by the Judicial Conference. The judiciary uses the plan to communicate its most urgent projects to Congress and other decision makers. Previously, we found that judiciary’s 5-year plans did not reflect the most urgently needed projects and lacked key information about the projects selected— such as a justification for the project’s priority level.

GSA reviews its courthouse studies with the judiciary and forwards approved projects for new courthouses to the Office of Management and Budget (OMB) for review. If approved by OMB, GSA then submits requests to congressional authorizing committees for new courthouse projects in the form of detailed descriptions, or prospectuses, authorizing acquisition of a building site, building design, and construction. Following congressional authorization and the appropriation of funds for the projects, GSA manages the site, design, and construction phases. After occupancy, GSA charges federal tenants, such as the judiciary, rent for the space they occupy and for their respective share of common areas, including mechanical spaces. In fiscal year 2012, the judiciary’s rent payments to GSA totaled over $1 billion for approximately 42.4 million square feet of space in 779 buildings that include 446 federal courthouses.

Before Congress makes an appropriation for a proposed project, GSA submits detailed project descriptions called prospectuses to the Senate Committee on Environment and Public Works and the House Committee on Transportation and Infrastructure, for authorization by these committees when the proposed construction, alteration, or acquisition of a building to be used as a public building exceeds a specified dollar threshold. For purposes of this report, we refer to these committees as “authorizing committees” when discussing the submission of the prospectuses and providing additional information relating to prospectuses to these committees. Furthermore, for purposes of this report, we refer to approval of these projects by these committees as “congressional authorization.” See 40 U.S.C. § 3307. evaluating all of the courthouses until October 2015 and would take another 18 to 24 months to complete the LRFPs, dependent upon the availability of funding.

AMP Process Partially Aligns with Several Leading Practices but Does Not Provide Needed Information to Decision Makers

AMP Process Partially Aligns with Several Leading Practices in Capital Planning

The AMP process, which the judiciary has applied to about 67 percent of its courthouses, represents progress by the judiciary in aligning its capital- planning process with leading capital-planning practices, but the document the judiciary uses to request courthouse construction projects lacks transparency and key information. We have previously reported that prudent capital-planning can help agencies maximize limited resources and keep capital acquisitions on budget, on schedule, and aligned with mission needs and goals. Figure 2 summarizes leading capital-planning practices and our assessment of the extent to which the AMP process aligns with those practices. For our analysis of judiciary’s planning practices, we focused on the judiciary’s implementation of the concepts that underlie the planning phase of OMB and GAO guidance, including linking capital-planning to an agency’s strategic goals and objectives and developing a long-term capital investment plan.

Several aspects of the AMP process partially align with leading capital- planning practices, but none fully align and the 5-year plan only aligns to a limited extent—which we discuss further in this report. Here are some examples to illustrate partial alignment:

Strategic Linkage. The judiciary’s strategic plan links to its management of capital assets, but the AMP process does not link to the strategic plan. For example, the AMP process documents we reviewed did not explain how the process helps achieve the goals and objectives in the judiciary’s current strategic plan, which are organized around seven issues: providing justice; the effective and efficient management of public resources; the judiciary workforce of the future; harnessing technology’s potential; enhancing access to the judicial process; the judiciary’s relationships with the other branches of government; and enhancing public understanding, trust, and confidence. However, after our review, a judiciary official told us that the Long Range Facility Plans (LRFP) currently under development would include a reference to the strategic plan.

Needs Assessment and Gap Identification. The AMP process has improved judiciary’s needs assessment and gap analysis by establishing a comprehensive, nationwide 328-factor study for every courthouse, whereas the previous process was not as comprehensive and only assessed courthouses when requested by a local judicial district. The AMP process evaluates the degree to which existing facilities support court operations by applying space functionality standards, security, and building condition factors. However, cost estimates supporting the judiciary’s needs are incomplete, as discussed later in this report.

Alternatives Evaluation. The AMP process establishes a review and approval framework criteria for justifying new construction, whereas none existed in the previous process. The AMP process evaluates some alternatives, such as renovating existing courthouses to meet needs, but it is unclear if the judiciary considered other options, such as courtroom-sharing in the existing courthouse. Assessing a wide- range of alternatives would help the judiciary ensure that it evaluated other, less costly, approaches to bridging the performance gap before recommending new construction.

Review and Approval Framework with Established Criteria for Selecting Capital Investments. The AMP process includes a review and approval framework with criteria, such as courthouses needing two or more courtrooms to qualify for a new courthouse project. However, courtroom deficits are not apparent in most projects reported in the 5-year plan.

Long-Term Capital Investment Plan. Judiciary officials with whom we spoke agreed that the 5-year plan is not a long-term capital investment plan, but it is what the judiciary uses to document its request for new courthouse construction to decision makers. The one- page 5-year plan document does not reflect the depth of the AMP process, describe all other projects that the judiciary considered, or indicate how the projects chosen will help fulfill the judiciary’s mission, goals, and objectives.

Two courthouse projects illustrate how the AMP process has changed the way the judiciary evaluates its need for new courthouses. Specifically, two projects listed on a previous 5-year plan (covering fiscal years 2012 through 2016) were re-evaluated under AMP—San Jose, California, and Greenbelt, Maryland. Both had ranked among the top 15 most urgent projects nationwide under the previous capital-planning process, and as such, the judiciary prioritized them for new construction in 2010. However, after the judiciary evaluated the San Jose and Greenbelt projects under the AMP process, their nationwide rankings fell to 117 and 139, respectively. Judiciary officials explained that this drop was largely because of the completion of additional AMP assessments, coupled with the reduced space needs because of courtroom-sharing. Following the change in rankings, GSA and the judiciary determined that judiciary’s needs could alternatively be addressed through repair and alteration projects that reconfigure existing space. The judiciary added that its decision saved taxpayer money. As a result, at the request of the judiciary, the Judicial Conference of the United States removed the two projects from the 5-year plan.

Current 5-Year Plan Lacks Transparency, and $1- Billion Cost Estimate Is Not Comprehensive

The judiciary’s current 5-year plan—the end product of the judiciary’s capital-planning process—does not align with leading practices for a long- term capital investment plan in a number of ways. The plan does not provide decision makers with detailed information about proposed construction projects or how they were selected. The one-page document lists each project by city name, year, and dollar estimate for the next phase of the project’s development as shown in figure 3. The one-page plan also provides the project’s urgency score from the judiciary’s capital- planning process. However, the document does not specify whether the scores were developed under the old process or the AMP process. Unlike a long-term capital investment plan—usually the end product under leading capital-planning practices—the 5-year plan lacks complete cost and funding information, linkage to the judiciary’s strategic plan, and information on why projects were selected. Specifically, while courthouses provide facilities for the judiciary to accomplish goals set out in its strategic plan, such as enhancing access to the judicial process, the 5-year plan contains no mention of the strategic plan. In addition, the 5- year plan does not include a discussion of the AMP process and criteria; a schedule of when the AMP process will be completed; and details on the alternatives considered during the process, such as whether the judiciary’s courtroom-sharing policy was applied prior to requesting a new courthouse project.

The 5-year plan is not transparent and does not provide key funding information, such as total estimated project costs. Specifically, it lists about $1.1 billion in estimated costs, which are the funds needed for that specific 5-year period. However, these costs only include part of the project phases. The estimated cost of all project phases—site acquisition, building design, and construction—comes to $1.6 billion in 2013 dollars. In addition, while no longer included in the 5-year plan, the judiciary estimated that it would need to pay GSA $87 million annually in rent, or $1.6 billion over the next 20 years, to occupy these courthouses if constructed. Table 1 describes our analysis of judiciary’s data for the estimated cost of all phases and projected rent costs that total almost $3.2 billion. However, even though the $3.2-billion estimate provides a more complete presentation of the project costs, that estimate could change based on GSA’s redesign of projects because of changes in the judiciary’s needs. In addition, the $3.2-billion estimate does not include life-cycle costs, such as furniture and GSA disposal of existing facilities, which would also have to be included for the cost estimate to be comprehensive. GAO and OMB have established that estimates of life-cycle costs are necessary for accurate capital-planning.

In addition, the 5-year plan does not provide the amount of funding already provided for all of the projects. Since fiscal year 1995, Congress has appropriated about $177 million of the estimated $1.6 billion needed for 10 of these projects’ phases, mostly for site acquisitions and designs. None of the projects has begun construction, and only the Mobile project has received any construction funding (see fig. 4).

We found that the 5-year plan does not align with the leading practice of considering the risks involved in acquiring new courthouses. Specifically, the plan does not inform stakeholders that 11 of the 12 projects require further design before construction can begin. According to GSA officials, the agency has not received funding for the design of two projects (Chattanooga and Des Moines). Of the remaining 10 projects that have design funding, 1 is in the design process and 9 are on hold. According to GSA officials, some of the projects on hold must be re-designed to accommodate policy and other requirements relating to, for example, changes such as courtroom-sharing and energy management.example, the design of the Savannah courthouse project was completed in 1998 and now needs extensive re-design to accommodate changes mandated by policy shifts, including improved security and a reduction in the number of courtrooms needed. GSA officials said that only the design of the Nashville project—though oversized by one floor—is likely to remain largely intact because it would be more cost-effective to rent the additional space to other tenants than to completely re-design the project.

In February 2012, judiciary submitted its 5-year plan to Congress and other decision makers. As a result, there is a risk that funding decisions could be made without complete and accurate information. Congress would benefit from having information based upon a long-term capital investment plan for several reasons. Specifically, transparency about future priorities could allow decision makers to weigh current-year budget decisions within the context of projects’ expected future costs. In the case of the judiciary, which has identified a number of future courthouse projects estimated to cost several billion dollars, full transparency regarding these future priorities may spur discussion and debate about actions Congress can take to address them. Additionally, transparency regarding future capital costs would put the judiciary’s priorities in context with federal spending. There is widespread agreement that the federal government faces formidable near- and long-term fiscal challenges. GAO has long stated that more transparent information and better incentives for budget decisions, involving both existing and proposed programs, could facilitate consideration of competing demands and help put U.S. finances on a more sustainable footing.

Most Courthouse Projects Were Not Evaluated under AMP Process and Do Not Meet AMP Criterion for New Construction

Judiciary Has Not Evaluated Most 5-Year Plan Projects under the AMP Process

The judiciary has not applied the AMP process to 10 of the 12 construction projects on the current 5-year plan dated September 2012. These 10 projects were evaluated under the judiciary’s prior capital- planning process and approved based on their urgency levels as determined under that process. Judiciary officials said that they did not want to delay the projects or force them to undergo a second capital- planning process review because the judiciary had already approved the projects. Only 2 projects on the current 5-year plan (2014 to 2018) were assessed under the AMP process—Chattanooga, Tennessee, and Des Moines, Iowa. Judiciary officials said these projects were added to the 5- year plan in September 2010 because they had the highest priority rankings of the projects that had undergone an AMP review at that time. Judiciary officials explained that these projects also had GSA feasibility studies that recommended new construction. However, the Chattanooga and Des Moines projects have not retained their top rankings as the judiciary has continued to apply the AMP process to additional courthouses. Specifically, judiciary documents show that more than a dozen other projects not included on the 5-year plan now rank above the Chattanooga and Des Moines projects, six of which recommend new construction. For example, we visited the federal courthouse in Macon, Georgia, which now ranks higher than either the Chattanooga or Des Moines projects. The Macon courthouse suffers from numerous operational and security issues typical of historic courthouses, but it is not included on the 5-year plan. As we previously noted, the judiciary also applied the AMP process to 2 other projects that were included on an older 5-year plan (2012 to 2016)—San Jose and Greenbelt—and subsequently removed them after the projects received substantially lower priority rankings, as shown in appendix IV.

The change in the rankings of the 4 projects calls into question the extent to which the projects remaining on the 5-year plan represent the judiciary’s most urgent projects and whether proceeding with these projects while hundreds of AMP reviews remain to be done represents the most fiscally responsible path. We recognize that conducting AMP reviews of the 10 projects on the 5-year plan would involve additional costs; however, not conducting AMP reviews on these projects could involve spending billions of dollars over the next 20 years on courthouses that may not be the most urgent projects. While the AMP process only partially aligns with leading practices in capital-planning, it is a significant improvement over the capital-planning process the judiciary used to choose 10 of the 12 projects on the 5-year plan. Assessing the 10 projects with the AMP process could help ensure that projects on the 5- year plan do, in fact, represent the judiciary’s most urgent projects.

Most Projects Do Not Qualify for a New Courthouse under the AMP Courtroom Criterion

found that 5 of the projects on the list currently need additional courtrooms, and of those, only the Charlotte and Greenville projects would qualify under the AMP criterion because both need three additional courtrooms (see table 2). We did not assess if the shortage of courtrooms alone is the most appropriate criterion for requesting new construction from GSA, but the establishment of a clear criterion adds an element of transparency that was lacking in the judiciary’s previous capital-planning process.

We visited two courthouses on the current 5-year plan that were selected as new construction projects under the prior capital-planning process— Savannah and Anniston built in 1899 and 1906, respectively. These historic courthouses qualified for new construction under the previous process because of space needs and security and operational deficiencies because of their age, condition and building configuration. According to judiciary and GSA officials, neither courthouse meets Design Guide standards for (1) the secure circulation of prisoners, the public, and courthouse staff and (2) the adjacency of courtrooms and judge’s chambers. However, neither of these courthouses would qualify for new construction under the AMP criterion as both have a sufficient number of existing courtrooms for all the judges. Specifically, the Savannah and Anniston courthouses each have enough courtrooms for all assigned judges to have exclusive access to their own courtroom. Savannah currently houses one district judge, one senior district judge, one magistrate judge, and one bankruptcy judge. Figure 5 shows two courtrooms in the Anniston courthouse that currently house one senior district judge and one bankruptcy judge.

As discussed, the judiciary’s courtroom-sharing policies for senior district, magistrate, and bankruptcy judges allow it to reduce the scope of its courthouse projects and contributed to the cancelation of other courthouse projects. The judiciary has also been studying a courtroom- sharing policy for district judges but has not yet finalized a policy and could not provide a date when and if it planned to do so. Our 2010 report based on judiciary data on courtroom scheduling and use showed that judges of all kinds, including district judges, could share courtrooms without delaying any scheduled events and recommended that the judiciary expand courtroom-sharing to more fully reflect the actual scheduling and use of district courtrooms. Specifically, judiciary data showed that three district judges could share two courtrooms or a district judge and a senior district judge could share one courtroom. If district judges shared courtrooms in this way, the judiciary would have a sufficient number of courtrooms in all of the 12 proposed projects in the 5- year plan, based on the AMP criterion.

In responding to our recommendation, the judiciary stated that our 2010 report oversimplified the complex task of courtroom-sharing by assuming that judicial proceedings were more certain and predicable than they are. We addressed the uncertainty of courtroom scheduling by (1) accounting for unused scheduled time as if the courtroom were actually used and (2) providing additional unscheduled time in courtrooms. Since potential courtroom-sharing among district judges could reduce the need for additional courtroom space and the AMP criterion for qualifying for new courthouse construction, it is important for the judiciary to finalize its position and policy on courtroom-sharing, as we previously recommended.

Conclusion

With the development and implementation of the AMP process, the judiciary’s capital-planning efforts partially align with several leading practices. The AMP process has the potential to provide a wealth of information on the judiciary’s existing facilities and assess and rank the need for new construction based on measurable criteria. However, the 5- year plan submitted for approval of several billion-dollars worth of projects—a one-page list of projects with limited and incomplete information—does not support the judiciary’s request for courthouse construction projects. For example, the AMP process introduces a criterion for when new construction is warranted—when two or more courtrooms are needed—but the 5-year plan does not show how this criterion applies to the recommended projects. Furthermore, the 5-year plan has underestimated total costs of these projects by about $2 billion because it does not include all project phases and because the judiciary no longer includes its rent costs on the 5-year plan. Additionally, construction has not begun on any of the 12 courthouse projects on the 5- year plan and most need to be redesigned to meet current standards. Given the fiscal environment, the judiciary and the Congress would benefit from more detailed information about courthouse projects and their estimated costs than judiciary currently provides. Such information would enable judiciary and Congress to better evaluate the full range of real property priorities over the next few years and, should fiscal constraints so dictate, identify which should take precedence over the others. In short, greater transparency would allow for more informed decision making among competing priorities.

Current fiscal challenges also require that the federal government focus on essential projects. While the judiciary has made significant strides in improving its capital-planning process, most of the 12 projects listed on the 5-year plan are products of its former process. It is possible that some of the 12 projects do not reflect the most urgent capital investment needs of the judiciary under its current criteria. Two projects on a previous 5- year plan that were assessed under the AMP process were removed from the list and now rank well down on the judiciary’s list of priorities, but the judiciary has not applied the AMP process to 10 courthouses on the current 5-year plan dated September 2012. Furthermore, 10 of the 12 projects on the current 5-year plan do not require a sufficient number of courtrooms to qualify for new construction under the AMP courtroom criterion. In addition, there is no evidence that the judiciary considered how it could meet the need for courtrooms without new construction if district judges shared courtrooms. Although there would be some incremental costs involved with an additional 10 AMP reviews, those costs appear justified given the billions involved in moving forward with the construction of those 10 courthouses. Similar to the 2-year moratorium the judiciary placed on courthouse construction while it developed the AMP process, it is not too late to apply the AMP process to the 5-year plan projects and possibly save taxpayers from funding construction of projects that might not represent the judiciary’s highest priorities under current criteria. It is critical that the judiciary accurately determine its most urgent projects because of the taxpayer cost and the years of work involved in designing and constructing new courthouses.

Recommendations

To further improve the judiciary’s capital-planning process, enhance transparency of that process, and allow for more informed decision making related to the federal judiciary’s real property priorities, we 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 two actions: 1. Better align the AMP process with leading practices for capital- planning. This should include linking the AMP process to the judiciary’s strategic plan and developing and sharing with decision makers a long-term capital investment plan. In the meantime, future 5- year plans should provide comprehensive information on new courthouse projects, including: a) a summary of why each project qualifies for new construction and is more urgent than other projects, including information about how the AMP process and other judiciary criteria for new courthouse construction were applied to the project; b) complete cost estimates of each project; and c) the alternatives to a new project that were considered, including courtroom-sharing, and why alternatives were deemed insufficient. 2. Impose a moratorium on projects on the current 5-year plan until AMP evaluations are completed for them and then request feasibility studies for courthouse projects with the highest urgency scores that qualify for new construction under the AMP process.

Agency Comments and Our Evaluation

We provided copies of a draft of this report to GSA and AOUSC for review and comment. GSA and AOUSC provided technical comments that we incorporated as appropriate. Additionally, AOUSC provided written comments in which it agreed with our recommendation to link the AMP process to the judiciary’s strategic plan. However, AOUSC raised a number of concerns that the subpoints related to our first recommendation on improving capital planning would duplicate other judiciary or GSA documents. Furthermore, AOUSC disagreed with our recommendation to place a moratorium on the projects in the 5-year plan until it could perform AMP evaluations of those projects because it would take years and not change the result. We continue to believe that our recommendation is sound because the projects included on the 5-year plan were evaluated under the judiciary’s previous capital planning process and evidence suggested they no longer represent the judiciary’s highest priorities. Specifically, two projects on a previous 5-year plan that were assessed under the AMP process were removed from the list and now rank well down the judiciary’s list of priorities. In addition, 10 of the 12 projects on the current 5-year plan do not qualify for new construction under the AMP process. In response to AOUSC’s comments, we made some technical clarifications where noted, none of which materially affected our findings, conclusions, or recommendations. AOUSC’s complete comments are contained in appendix V, along with our response to specific issues raised.

In commenting on a draft of our report, AOUSC said it would take steps to address our first recommendation to link the AMP process to the judiciary’s strategic plan, but cited concerns about our presentation of information, accuracy of data, and the subpoints of the first recommendation. Specifically, AOUSC disputed our characterization of the judiciary’s role in the capital-planning process for new courthouses and the information provided to Congress to justify new courthouses. According to AOUSC, Congress receives extensive, detailed information on new courthouse projects from GSA, and our recommendation for the judiciary to provide more comprehensive information on courthouse projects in 5-year plans would duplicate the GSA’s work. AOUSC also disputed our presentation of the AMP process, stating that GAO did not consider all documents when making our conclusions. AOUSC disagreed with our recommendation for a moratorium on all projects currently on the 5-year plan because completing AMP evaluations for those projects would unnecessarily delay the projects and exacerbate existing security and structural issues with the existing courthouses. In AOUSC’s view, AMP evaluations for these courthouses would take years and not alter the justification for new construction projects. AOUSC further disputed the data we used to support our conclusions about the projects on the 5-year plan and our explanation of the data’s source. AOUSC also questioned our characterization of the judiciary’s actions in response to recommendations in a prior GAO report.

We believe our findings, analysis, conclusions, and recommendations are well supported. GAO adheres to generally accepted government auditing standards, which ensure the accuracy and relevance of the facts within this report. These standards include a layered approach to fact validation that includes supervisory review of all work papers, independent verification of the facts within the report, and the judiciary’s review of the facts prior to our release of the draft report for agency comment. To the extent that the judiciary is questioning any facts, the judiciary had multiple opportunities provide supporting documentation to substantiate its view. We believe that our description of the roles and responsibilities of the judiciary and the GSA in the capital-planning process for new courthouses is correct and appropriate. In reaching our conclusions about the information provided to Congress, we relied on documents we received from the judiciary and GSA. We continue to believe that by implementing our recommendation about providing additional information to Congress, the judiciary would improve the completeness and transparency of the information that Congress needs to justify and authorize funding of new courthouse projects. We will review AOUSC’s steps, once finalized, to address our recommendation that the AMP process be linked to the judiciary’s strategic plan. We continue to believe that any steps that AOUSC takes should be aligned with leading practices, including presentation of total project cost estimates and alternatives considered, such as greater courtroom sharing in existing courthouses.

With regard to our recommended moratorium on projects on the current 5-year plan, we note that the AMP process represents progress by the judiciary in better aligning its capital-planning process with leading practices. Consequently, we believe that it would be worthwhile to use this improved process to ensure that all courthouse construction proposals remain the judiciary’s top priorities and qualify for new construction under the AMP process. The San Jose and Greenbelt projects were approved as among the highest priorities for new construction under the old process but, after being evaluated under the AMP process, now rank far lower on the judiciary’s list of priorities—117th and 139th, respectively. We also noted that regardless of whether a project is on the 5-year plan, GSA is responsible for ensuring that courthouses are adequately maintained. We relied on data provided by the judiciary and the GSA to support our analysis of whether the projects on the 5-year plan would qualify under the AMP process, and stand by our conclusions. We used the most current and complete data provided by the judiciary to evaluate the cost of these projects. We will review information provided by the judiciary and determine whether to close the recommendation from our 2010 report at the appropriate time. In response to AOUSC’s comments, we clarified the report and added detail to our methodology in appendix I as appropriate.

As agreed with your office, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date. At that time, we will send copies of this report to the appropriate congressional committees, Director of the Administrative Office of the U.S. Courts, the Administrator of GSA and other interested parties. In addition, the report will be available at no charge on GAO’s website at http://www.gao.gov.

If you or your staffs have any questions on this report, please contact me at (202) 512-2834 or goldsteinm@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. Contact information and key contributors to the report are listed in appendix VI.

Appendix I: Objectives, Scope and Methodology

This report addresses the following objectives:

To what extent does the judiciary’s capital-planning process align with leading practices and provide the information needed for informed decision making?

To what extent were the courthouse projects recommended for funding in fiscal years 2014 to 2018 assessed under the judiciary’s current capital-planning process?

To evaluate the judiciary’s capital-planning process, we collected information on leading capital-planning practices from the Office of Management and Budget’s (OMB) Capital Programming Guide and GAO’s Executive Guide and compared this information with the AMP process contained in the judiciary’s Long Range Facility Plans, Facility Benefit Assessments, Citywide Benefit Assessments, Urgency Evaluations, 5-year plans and Strategic Plan. We did not review the appropriateness of criteria used by judiciary in its AMP process. We reviewed documentation on the status of courthouse construction projects and information about other federal buildings occupied by the judiciary. We reviewed GSA data on actual costs of construction and tenant improvements at two courthouse projects (Las Cruces, NM and Ft. Pierce, FL) one completed in 2010 and one completed in 2011; and GSA and judiciary estimated costs of construction for the courthouse projects on the most recent 5-year plan, covering fiscal years 2014 to 2018. To determine if life-cycle cost estimates were provided in the 5-year plan, we assessed the judiciary data against GAO’s Cost Estimating and Assessment Guide. To determine the current dollar value of the judiciary’s estimate of courthouse projects’ rents, we calculated the present value of the estimated project cost based upon averages of monthly indexes from U.S. Department of Labor, Bureau of Labor Statistics, and rent based upon 20 year OMB published discount rate for analyses. In addition, we interviewed judiciary officials on the AMP process and its alignment with leading capital-planning practices. To analyze judiciary’s capital-planning process, we reviewed our previous reports on capital-planning across the federal government, including the efforts by the judiciary and the Department of Veterans Affairscommunicate its urgent housing needs to Congress.

To assess recent courthouse projects recommended for funding under the judiciary’s current capital-planning process, we reviewed the judiciary’s documents detailing the projects recommended for funding for fiscal years 2009 through 2018, called 5-year plans, and other documents on: congressional authorizations and funding appropriations for courthouse projects; judiciary information on courts and courthouses; and GSA information on federal buildings, existing and planned federal courthouses, courthouse design, and federal historic property. We interviewed judiciary and GSA officials in Washington, D.C., and federal courthouses we selected in Anniston, AL; Macon, GA; and Savannah, GA. To observe existing courthouses, we selected Anniston and Savannah because they were evaluated under judiciary’s old capital- planning process and are on the most recent 5-year plan, covering fiscal years 2014 to 2018. We selected Macon because it was highly ranked under the judiciary’s new capital-planning process and is in close proximity to Anniston and Savannah. While our observations cannot be generalized to all federal courthouses, they provide keen insights into physical conditions at old historic courthouses. We reviewed documentation provided by the judiciary on strategic planning, capital- planning, existing courthouse evaluations, the rating and ranking of existing courthouse deficiencies, existing and future judgeships, and courtroom-sharing by judges. To determine the extent that courthouse projects on the 5-year plan reflect future judges needed and courtroom- sharing, we compared the judiciary’s planned occupancy information to the judiciary’s own guidance, our previous work on judiciary’s courtroom- sharing, and a recently proposed bill from the 112th Congress that would have required GSA to design courthouses with more courtroom-sharing.

We determined the number of courtrooms in the existing courthouses and compared them to the number of courtrooms needed in the new courthouses using the judiciary’s courtroom-sharing policy. We also applied judiciary’s courtroom-sharing policy for new courthouses to existing courthouses. We reviewed documentation provided by GSA on the status of courthouse construction; the status of courthouse projects on the two most recent 5-year plans; and federal buildings and courthouses occupied by the judiciary. We reviewed the judiciary’s and GSA’s data for completeness and determined that the data were sufficiently reliable for the purposes of this report.

We conducted this performance audit from March 2012 to April 2013 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.

Appendix II: Judiciary’s Courtroom-Sharing Policy for New Construction

Senior District Judges

In court facilities with one or two Bankruptcy Judges, one courtroom will be provided for each Bankruptcy Judge. In court facilities with three or more bankruptcy judges, one courtroom will be provided for every two bankruptcy judges, rounding down when there is an odd number of judges. In addition, one courtroom will be provided for emergency matters, such as Chapter 11 first-day hearings.

Appendix III: Judiciary’s Asset-Management Planning Process Urgency-Evaluation Matrix for New Construction Projects

Categories (weight) Description Current additional courtrooms needed (15%)

Courtrooms needed today. Data separated by judge type and weights assigned (district judges 100%, senior district judges 75%, magistrate judges 50% or bankruptcy judges 50%). Courtroom-sharing per Judicial Conference policy.

Future additional courtrooms needed (5%)

Courtrooms needed within 15 years. Data separated by judge type and weights assigned (district judges 100%, senior district judges 75%, magistrate judges 50% or bankruptcy judges 50%). Courtroom-sharing per Judicial Conference policy.

Current additional chambers needed (22.5%)

Chambers needed today. Data separated by judge type and weights assigned (district judges 100%, senior district judges 75%, magistrate judges 50% or bankruptcy judges 50%). Courtroom-sharing per Judicial Conference policy.

Future additional chambers needed (7.5%)

Chambers needed within 15 years. Data separated by judge type and weights assigned (district judges 100%, senior district judges 75%, magistrate judges 50% or bankruptcy judges 50%). Courtroom-sharing per Judicial Conference policy.

Citywide benefit assessment result (40%)

In cities where courtrooms and chambers are located in multiple facilities, a citywide benefit assessment is produced. This incorporates the individual Facility Benefit Assessment for each facility; the type, a mix of facility ownership; and fragmentation of the court operations on a citywide basis. In cities with a single courthouse, the Facility Benefit Assessment is the same as the citywide assessment and covers 328 items in four main categories: building conditions (30%); space functionality (30%); security (25%); and space standards (15%).

Civil filings historic (3%)

Average annual change in the number of civil filings (1997-2011).

Civil filings projected (1%)

Projected average annual change in the number of civil filings (2012-2026).

Criminal defendants historic (4.5%)

Average annual change in the number of number of criminal defendants (1997-2011).

Criminal defendants projected (1.5%)

Projected average annual change in the number of criminal defendants (2012-2026).

Appendix IV: Judiciary’s New Courthouse Projects for Fiscal Years 2012 to 2016 and Fiscal Years 2014 to 2018

New asset-management planning process

Fiscal year 2014 – 2018 5- X 90.4 See note See note The higher the “score,” the greater the space need urgency.

More than one building assessed.

Appendix V: Comments from the Federal Judiciary

GAO Comments

1. AOUSC stated that we failed to understand the purpose of the 5-year plan, indicating that it is not a long-term capital investment plan. The draft report that we provided to AOUSC for comment indicates that the 5-year plan is not a long-term capital investment plan. However, the 5-year plan represents the only document that communicates the judiciary’s recommendations related to new courthouse projects to Congress and other stakeholders. Since it is important for stakeholders to understand the context for new courthouse projects, we continue to believe that the judiciary should improve the completeness and transparency of the information the judiciary uses to justify these projects. 2. AOUSC stated that funding for the projects totaled $188.29 million, but did not provide any supporting information for this amount. We used General Services Administration (GSA) data to determine the amount of funding appropriated for the projects on the 5-year plan, which we state to be $177 million in our report. 3. AOUSC stated that GSA already provides sufficient information to Congress on the judiciary’s behalf for courthouse projects. While GSA provides information to congressional committees when seeking authorization for new courthouse projects, by that time, the judiciary has already recommended the projects for new construction. The 5-year plan represents the only document that communicates the judiciary’s recommendations for new construction, and it is incomplete and lacks transparency. For example, the 5-year plan underestimates the total costs of these projects by about $2 billion because it does not include all project phases and because the judiciary no longer includes its rent costs on the 5-year plan. 4. AOUSC was critical of our conclusion that the AMP process does not link to the judiciary’s strategic plan. According to AOUSC, the template for future Long-Range Facilities Plans will clearly illustrate how the AMP process supports and links to the judiciary’s strategic plan. We continue to welcome improvements to the judiciary’s approach to strategic planning for courthouse construction. We will assess these changes when they are implemented, as part of our recommendation follow-up process. 5. AOUSC noted that, with respect to our recommendation, imposing a moratorium and reviewing the projects on the 5-year plan under the AMP process would create a delay of up to 6 years and that 10 of the 12 projects have been on the 5-year plan since 1999 or earlier. AOUSC states in its response that the previous capital-planning process was “stringent,” and as a result should be respected for its policy and budgetary implications. We have previously found deficiencies in the judiciary’s previous capital planning process, including that the judiciary tends to overstate the number of judges that will be located in a courthouse after 10 years. Our draft report noted that the AMP process represents progress by the judiciary in better aligning its capital-planning process with leading practices. When the judiciary applied the AMP process to two projects on a previous 5-year plan—San Jose, California, and Greenbelt, Maryland—neither project ranked among the judiciary’s revised priorities for new construction, indeed, they ranked 117th and 139th, respectively. In addition, only two projects in the current 5-year plan qualify for new construction under the judiciary’s AMP process. Shifting courthouse priorities demonstrate a process that is not yet finalized. Given the federal government’s current budgetary condition, the judiciary should assure the Congress through its planning process that the courthouses prioritized for construction funding truly represent its most urgent needs. Otherwise, the government stands to potentially spend billions of dollars on courthouse construction that does not meet the judiciary’s most urgent needs. Assessing all courthouses under the AMP process, given the problems of the previous process, would help assure the judiciary and the Congress that the highest priority courthouses are selected and that the government is effectively spending construction funds. 6. AOUSC stated that the declining conditions in existing courthouses on the 5- year plan place judges, staff, and the public in harm’s way. Our work over a number of years has shown that many federal buildings face deteriorated conditions, a reason that federal property was included on GAO’s High Risk List. The courts are not alone in this regard. Our draft report noted that GSA is responsible for ensuring that courthouses are adequately maintained. As a result, GSA addresses building maintenance issues regardless of the status of the courthouse construction program. In addition, we note that the criteria the judiciary uses to select new courthouse construction projects are its own. The AMP process established that space shortages, not facility condition, are the only criteria for requesting new courthouse construction. 7. AOUSC noted the security concerns at existing courthouses we visited that we did not independently evaluate. For additional context, we added to the report references to the judiciary’s approach to improve security within existing courthouses rather than replace them with new courthouses. The judiciary’s AMP process criteria are consistent with this approach, as facility security deficiencies under the AMP process are no longer a justification for new courthouse construction. 8. AOUSC attached a letter from Chief Judge Lisa Godbey Wood of the Southern District of Georgia, which we have printed in this report on pages 47 to 54. We address Judge Wood’s comments separately (see comments 21- 27). 9. AOUSC stated table 2 included incorrect information and provided revisions to the table. We stand by the information provided in our report, which was provided by the GSA and the judiciary and was reviewed consistent with our internal controls under generally accepted government auditing standards. The AOUSC’s most recent numbers relate only to one courthouse in each city, but our numbers represent all the judiciary’s courtrooms in each city for which we used judiciary and GSA data. We revised our final report to clarify that the number of courtrooms in table 2 were for cities, some of which have more than one existing courthouse. For example, in Chattanooga, Tennessee, the AOUSC revised our number of courtrooms from six to four possibly because there are only four courtrooms in the Joel W. Solomon Federal Building and United States Courthouse from which the judiciary is seeking to relocate district and magistrate judge’s chambers and courtrooms. However, there are six courtrooms in Chattanooga because the bankruptcy judges’ chambers and courtrooms are located in a leased former post office/customs house. 10. AOUSC stated that the criteria of needing two or more courtrooms in order to recommend constructing a new courthouse pertains to the housing strategy recommendations contained in a district’s Long Range Facilities Plan, and that the next step is the completion of a GSA feasibility study. However, AOUSC is describing the new AMP process. The fact remains that most projects on the current 5-year plan were selected based on their evaluation under the judiciary’s previous capital-planning process, which did not include the courtroom shortage criteria. As a result, those courthouses slated for new construction under the old process and those selected under the new process are not comparable and do not represent the judiciary’s highest priorities. 11. AOUSC noted that when projects on the 5-year plan have a shortfall of one courtroom as opposed to two, the GSA feasibility study concluded that new courthouse construction was recommended. Our draft report observed that although a project may not qualify for new courthouse construction under the AMP process, GSA may determine through a feasibility study that new construction is the most cost-efficient, viable solution despite the fact the courthouse in question did not rise to the top in the selection process. 12. According to AOUSC, two projects were removed from the 5-year plan because their space needs had changed and not because their rankings dropped. Our draft report correctly stated that reduced space needs contributed to the removal of these projects from the 5-year plan. 13. AOUSC questioned if we reviewed any of the Long Range Facility Plans produced as part of the AMP process and the previous capital planning process. We reviewed these judiciary documents and have revised the description of our methodology discussed in appendix I to include the names of the documents related to the judiciary’s capital-planning process that we reviewed while developing this report. Specifically, we added the Long Range Facility Plans, Facility Benefit Assessments, Citywide Benefit Assessments, Urgency Evaluations, and the 5-year plan. 14. AOUSC stated that our assessment that the AMP process partially aligns with the leading capital practice related to “needs assessment and gap identification” was a gross error. According to AOUSC, it is not the judiciary’s role to generate cost estimates, and they believe that our partially aligns assessment is too low. While GSA is responsible for estimating the costs of courthouse projects, we continue to believe that the judiciary’s capital- planning process partially—not fully—aligns with this leading practice. GAO and Office of Management and Budget (OMB) guidance has established that estimates of life-cycle costs are necessary for accurate capital planning. The judiciary’s 5-year plan lists GSA estimated costs, but they are incomplete. Specifically, the cost estimates do not include all project phases—site acquisition, building design, and construction. In addition, the judiciary no longer includes the estimated cost of rent in its 5-year plan even though they have estimated costs for all project phases and rent. We believe this omission denies stakeholders and congressional decision makers complete information on judiciary construction-program costs. In addition, our draft report notes that these estimates are not life-cycle costs, which would also have to be included for the cost estimate to be comprehensive. 15. AOUSC disagreed with our assessment that the AMP process partially aligns with the leading capital practices related to “alternatives evaluation” because the judiciary does evaluate options with an emphasis on the least costly option. AOUSC also indicated that we did not consider Long Range Facility Plans in making this determination. We did consider Long Range Facility Plans, and continue to believe that the judiciary’s capital-planning process partially aligns with this leading practice. GAO and OMB guidance established that leading organizations carefully consider a wide range of alternatives. Our draft report noted that the AMP process evaluates some alternatives, such as renovating existing courthouses to meet needs, but the judiciary provided no evidence that it considered other viable options, such as courtroom sharing in existing courthouses, even though courtroom sharing is required in new courthouses. 16. AOUSC disagreed with our assessment that the AMP process partially aligns with the leading capital practices related to establishing a “review and approval framework with established criteria for selecting capital investments” because our draft report indicated that the judiciary has established such a framework. We continue to believe that the judiciary’s capital-planning process partially aligns with this leading practice because while we were able to discern that there are review and approval criteria in the AMP process, we found no evidence that the judiciary’s current 5-year plan applies those criteria. Specifically, the judiciary established the criterion that courthouses need to have a shortage of two or more courtrooms to qualify for a new courthouse construction project. However, 10 of the 12 projects recommended for new construction on the 5-year plan do not qualify under this criterion. 17. AOUSC stated that we used incorrect and inflated estimates for project costs.

We sought to provide total project cost estimates for each project on the 5- year plan. Our draft report uses estimates that the judiciary provided for total project costs and rent, which we adjusted for inflation to the current fiscal year. In response to our statement of facts, AOUSC provided a revised table (reprinted on p. 51 of this report). However, the data in the table that AOUSC provided were incomplete and they did not include supporting documentation. Consequently, we continue to use the most current, complete estimates of the total project costs and rent available. 18. AOUSC stated that the estimates of total project costs were provided to them by GSA. We added GSA to the source of table 1. 19. AOUSC stated that the judiciary has implemented changes to address recommendations from our 2010 report (GAO-10-417). GAO has a process for following up and closing previous recommendations. We have not yet assessed the extent to which the judiciary’s actions have fulfilled the recommendations from our 2010 report. We will, however, consider this and all other information from the judiciary when we determine whether to close the recommendations from our 2010 report. We plan to examine this recommendation in the summer of 2013. 20. According to AOUSC, the projects on the 5-year plan are fully justified under its previous “stringent” process that preceded the AMP process. However, as we have previously noted, the former process had shortcomings and in our opinion does not represent a process that the Congress should rely upon for making capital budget decisions. The new AMP process will, when complete, likely provide Congress with greater assurance that the judiciary’s construction priorities represent the highest priority needs. We addressed the difference in funding for the projects on the current 5-year plan in comment 2. 21. Judge Wood stated that the number of judges in Savannah may change. For each project, we used data provided by AOUSC. However, in our 2010 report (GAO-10-417), we found that the judiciary often overestimated the number of future judges it would have in planning for new courthouses. 22. According to Judge Wood, it is inappropriate to subject the Savannah courthouse to the AMP process when over $6 million has already been spent on design services. We found, and the AOUSC agreed, in comments to our draft report, that the Savannah courthouse has four courtrooms and four judges. Consequently, it does not qualify for new construction under the AMP criterion. In addition, according to GSA, the original courthouse design from 1998, to which Judge Wood refers, is old and outdated. As a result, if the project moves forward, the government would need to spend additional money to redesign a new courthouse for Savannah. 23. Judge Wood noted the poor condition of the existing Savannah courthouse and the need for a repair and alterations project to address deferred maintenance issues. We toured this courthouse and noted many of the same deficiencies. Our draft report noted that regardless of whether a project is on the 5-year plan, GSA is responsible for ensuring that courthouses are adequately maintained. In addition, as the current plan for the Savannah project is to continue to use the existing courthouse and build an annex, deferred maintenance in the existing courthouse would still need to be addressed if the plan moved forward. 24. Judge Wood noted that the existing Savannah Courthouse was built in 1899 and has several deficiencies to Design Guide standards. Our draft report noted that some existing courtrooms may not meet Design Guide standards for size. However, as we also note, according to AMP guidance, a disparity between space in an existing facility and the Design Guide standards is not justification for facility alteration and expansion. 25. Judge Wood noted several security concerns in the existing Savannah Courthouse. See comment 7. 26. Judge Wood noted that the Savannah Courthouse project preceded the AMP process and the courthouse needs an additional courtroom and judge’s chamber. We address the judiciary’s previous capital planning process and judge and courtroom counts in Savannah in comments 20 and 21, respectively. 27. Judge Wood attached photos documenting some of the building condition problems at the Savannah Courthouse, and those are reprinted on pages 49 and 50. See comment 23. 28. AOUSC provided changes to the courtroom numbers in table 2 from our draft report. As we explained in comment 9, we changed the table to make clear that the courtroom count refers to the number of courtrooms citywide, not just in one courthouse.

Appendix VI: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Keith Cunningham, Assistant Director; George Depaoli; Colin Fallon; Geoffrey Hamilton; James Leonard; Faye Morrison; and Sara Ann Moessbauer made key contributions to this report.