[Protest of Army Contract Award for Health Care Management and Technical Services]

A-3975, AUGUST 1, 1924, 4 COMP. GEN. 141

PERSONAL FURNISHINGS - RUBBER BOOTS - VEHICLES - PASSENGER-CARRYING RUBBER BOOTS USED REGULARLY BY EMPLOYEES OF THE GENERAL LAND OFFICE WHILE EMPLOYED IN THEIR USUAL OCCUPATION ON LAND SURVEYS AND DISCLOSED NOT TO BE ABSOLUTELY ESSENTIAL TO THE ACCOMPLISHMENT OF THE PUBLIC WORK, BUT PRIMARILY AS PERSONAL EQUIPMENT FOR THE PERSONAL COMFORT AND PROTECTION OF THE EMPLOYEES, ARE NOT A PROPER CHARGE AGAINST AN APPROPRIATION WHICH MAKES NO PROVISION FOR THE PURCHASE OF SUCH ARTICLES. A MOTOR CYCLE WITH A PERMANENT SIDE-CAR ATTACHMENT FOR THE PURPOSE OF CARRYING FREIGHT IS NOT A PASSENGER-CARRYING VEHICLE WITHIN THE MEANING OF THE ACT OF JULY 16, 1914, 38 STAT. 508, PROHIBITING THE EXPENDITURE OF ANY SUM WITHOUT SPECIFIC AUTHORITY FOR THE PURCHASE, MAINTENANCE, REPAIR, OR OPERATION OF MOTOR-PROPELLED PASSENGER-CARRYING VEHICLES, AND REIMBURSEMENT FOR NECESSARY REPAIRS MADE ON SUCH MOTOR CYCLE IS AUTHORIZED.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 1, 1924:

E. D. SORENSEN, UNITED STATES SURVEYOR GENERAL IN UTAH, REQUESTS REVIEW OF SETTLEMENT I-17427, DATED SEPTEMBER 28, 1922, AND SETTLEMENT C-1792-I, DATED APRIL 2, 1924, WHEREIN CREDIT FOR TWO ITEMS HEREINAFTER MENTIONED WAS DISALLOWED.

THE ITEM INVOLVED IN THE FIRST SETTLEMENT REPRESENTS THE COST OF TWO OXY- ACETYLENE WELDS ON G.L.O. MOTOR CYCLE NO. 5, AT $1 EACH, TOTAL, $2, PAID FOR ON VOUCHER 536, DECEMBER, 1921, AND CREDIT WAS DISALLOWED FOR THE REASON THAT IT APPEARED THE REPAIRS WERE MADE UPON A PASSENGER-CARRYING MOTOR-PROPELLED VEHICLE CONTRARY TO THE ACT OF JULY 16, 1914, 38 STAT. 508, SECTION 5, PROHIBITING THE EXPENDITURE OF ANY SUM FOR THE PURCHASE, MAINTENANCE, REPAIR, OR OPERATION OF MOTOR PROPELLED PASSENGER-CARRYING VEHICLES FOR ANY BRANCH OF THE PUBLIC SERVICE UNLESS THE SAME IS SPECIFICALLY AUTHORIZED BY LAW.

IT BEING NOW REPORTED THAT THE CAR IN QUESTION WAS NOT CONSTRUCTED FOR NOR APPARENTLY USED AS A PASSENGER-CARRYING VEHICLE, BUT IS A MOTOR CYCLE EQUIPPED WITH A SIDE CAR PERMANENTLY AND INTEGRALLY ATTACHED, SUITABLE ONLY FOR FREIGHT-CARRYING PURPOSES, THE SAME WILL NOW BE ALLOWED IN THE ACCOUNTS.

THE ITEM INVOLVED IN THE SECOND SETTLEMENT REPRESENTS AN EXPENDITURE OF $12.50 FOR TWO PAIRS OF RUBBER HIP BOOTS AT $6.25 PER PAIR, PAID FOR ON VOUCHER 736, AUGUST, 1922, AND CREDIT WAS DISALLOWED IN ACCORDANCE WITH 20 COMP. DEC. 306 AND 2 COMP. GEN. 258, AS BEING PERSONAL FURNISHINGS.

IN JUSTIFICATION OF THE PURCHASE OF THESE BOOTS THE ASSISTANT SUPERVISOR OF SURVEYS AT SALT LAKE CITY, UNDER DATE OF JUNE 20, 1924, STATES:

* * * THE BOOTS IN QUESTION WERE PURCHASED FOR USE OF THE VARIOUS ASSISTANTS ENGAGED ON GROUP NO. 110, UTAH. THIS WORK WAS ENTIRELY DIFFERENT FROM THE USUAL PUBLIC-LAND SURVEY, AND IT WAS NECESSARY FOR THE ASSISTANTS TO BE IN WATER AND MUD ALL THE TIME WHILE ENGAGED IN THE FIELD. IT WAS NECESSARY IN ORDER TO OBTAIN ASSISTANTS TO PROVIDE RUBBER BOOTS OR WADERS FOR THEIR USE WHILE ENGAGED IN THE FIELD SURVEY WORK, AND THEY WERE HIRED WITH THE UNDERSTANDING THAT RUBBER BOOTS WOULD BE PROVIDED. THE BOOTS WERE NOT PURCHASED FOR ANY PARTICULAR PERSON AND WERE WORN BY WHOEVER HAPPENED TO BE EMPLOYED. THE BOOTS ALWAYS REMAINED THE PROPERTY OF THE GOVERNMENT, AND IN NO SENSE COULD BE REGARDED AS PERSONAL FURNISHINGS. * * * THE BOOTS WERE ABSOLUTELY NECESSARY, AND IF THEY HAD NOT BEEN PROVIDED BY THE GOVERNMENT IT WOULD HAVE BEEN NECESSARY TO PAY WAGES VERY MATERIALLY IN EXCESS OF THOSE WE DID PAY IN ORDER TO OBTAIN MEN FOR THE WORK. IT WAS GOOD BUSINESS AND VERY MUCH TO THE INTEREST OF THE GOVERNMENT TO PROVIDE THE BOOTS FOR USE ON THIS UNUSUAL SURVEY.

NOTWITHSTANDING THE STATEMENT HEREIN QUOTED TO THE CONTRARY, RUBBER BOOTS ARE ESSENTIALLY PERSONAL FURNISHINGS.

IT IS PROPOSED TO PAY FOR THESE ARTICLES FROM THE APPROPRIATION, "SURVEYING THE PUBLIC LANDS, 1923," ACT OF MAY 24, 1922, 42 STAT. 558, AND THIS APPROPRIATION DOES NOT SPECIFICALLY PROVIDE FOR THE PURCHASE OF SUCH ARTICLES. THEREFORE IN ACCORDANCE WITH THE RULE AS STATED IN 3 COMP. GEN. 433, THERE IS FOR CONSIDERATION WHETHER THE USE OF THE BOOTS WAS NECESSARY, FROM THE GOVERNMENT'S STANDPOINT, TO THE ACCOMPLISHMENT OF THE PURPOSE OF THE APPROPRIATION; AND IF SO, WHETHER THE EMPLOYEES MIGHT REASONABLY BE REQUIRED TO FURNISH THEM AS A PART OF THE PERSONAL EQUIPMENT NECESSARY TO ENABLE THEM TO PERFORM THE DUTIES FOR WHICH THEY WERE ENGAGED. FROM THE GOVERNMENT'S STANDPOINT IT WOULD APPEAR TO BE IMMATERIAL WHETHER THE PERSONS ENGAGED ON THE SURVEY WORE RUBBER BOOTS. IN OTHER WORDS, IT WOULD APPEAR THAT THE BOOTS WERE WORN FOR THE PERSONAL COMFORT, BENEFIT, OR PROTECTION OF THE EMPLOYEES. BUT ASSUMING THAT THE WORK COULD NOT BE ACCOMPLISHED AS EXPEDITIOUSLY OR ECONOMICALLY, FROM THE GOVERNMENT'S STANDPOINT, WITHOUT THE BOOTS AS WITH THEM, THE ADMINISTRATIVE REPORT HEREINBEFORE QUOTED INDICATES THAT THE BOOTS WERE WORN REGULARLY BY THE EMPLOYEES IN THE PERFORMANCE OF THE ORDINARY DUTIES FOR WHICH THEY WERE EMPLOYED, AND THE VERY NATURE OF THE WORK REQUIRED OF SURVEYOR'S ASSISTANTS IN SECTIONS IN WHICH THERE ARE STREAMS, SWAMPS, ETC., SUGGESTS THE NEED OF SUITABLE WADING BOOTS. THEREFORE IT MUST BE ASSUMED THAT IF THE BOOTS IN QUESTION WERE NECESSARY TO THE ACCOMPLISHMENT OF THE WORK THE EMPLOYEES REASONABLY COULD BE REQUIRED TO FURNISH THEM FOR THEMSELVES AS A PART OF THE PERSONAL EQUIPMENT NECESSARY TO ENABLE THEM PROPERLY TO PERFORM THE DUTIES FOR WHICH THEY WERE ENGAGED. THE FACT THAT A PAIR OF BOOTS MIGHT NOT HAVE BEEN ASSIGNED TO A PARTICULAR EMPLOYEE FOR HIS INDIVIDUAL USE AND THAT THE BOOTS WOULD AT ALL TIMES BE REGARDED AS THE PROPERTY OF THE GOVERNMENT ARE NOT THE SOLE DETERMINING FACTORS. SUCH FACTORS ARE NOT MATERIAL WHEN IT IS CLEARLY SHOWN THAT THE ARTICLES ARE USED REGULARLY BY THE EMPLOYEE IN THE PERFORMANCE OF THE PRINCIPAL OR ORDINARY DUTIES OF THE POSITION IN WHICH EMPLOYED.

THE QUESTION OF ADEQUACY OF COMPENSATION OR ECONOMY OF EXPENDITURE INCIDENT TO THE RATES AS PAID IS NOT FOR CONSIDERATION HERE, AS A DETERMINATION OF THE MATTER HERE PRESENTED DEPENDS UPON WHETHER THERE IS AUTHORITY OF LAW THEREFOR, AND UNDER THE CIRCUMSTANCES APPEARING I AM CONSTRAINED BY THE FACTS TO DECIDE THAT THERE IS NO AUTHORITY FOR SUCH EXPENDITURE AND ACCORDINGLY THE DISALLOWANCE AS TO THE ITEM OF $12.50 IS SUSTAINED.

UPON REVIEW OF SETTLEMENT I-17427 A DIFFERENCE OF $2 IS CERTIFIED FOR CREDIT IN THE DISBURSING OFFICER'S ACCOUNTS.