A-96379, AUGUST 3, 1938, 18 COMP. GEN. 122

A-96379, AUGUST 3, 1938, 18 COMP. GEN. 122

CONTRACTS - CONSULTING ENGINEERING SERVICES INCIDENT TO CONSTRUCTION OF PUBLIC BUILDING - INTENDED ADMINISTRATIVE AGENCY OCCUPANT'S AUTHORITY THE ARRANGEMENT OF OFFICE SPACE, INSTALLATION OF ELECTRIC WIRING FOR LIGHTS, DUMB-WAITERS, CALL BELLS, ETC., IN CONNECTION WITH THE CONSTRUCTION OF A CONTEMPLATED PUBLIC BUILDING, ARE PROBLEMS OF CONSTRUCTION WHICH ANY COMPETENT ARCHITECT OR CONSTRUCTION ENGINEER SHOULD BE FULLY QUALIFIED TO SOLVE AND WHICH ARE SOLVED REPEATEDLY AND SYSTEMATICALLY IN THE CONSTRUCTION OF THE VARIOUS GOVERNMENT BUILDINGS, AND AS SUCH ARE FOR PERFORMANCE BY OR THROUGH THE PROCUREMENT DIVISION, PUBLIC BUILDINGS BRANCH, TREASURY DEPARTMENT, AS INVOLVING APPROPRIATIONS UNDER CONTROL OF THAT DEPARTMENT, AND NOT THROUGH THE CONTRACTING OF THE INTENDED GOVERNMENT AGENCY OCCUPANT WITH A PRIVATE CONSULTANT WITH PAYMENT FROM APPROPRIATED FUNDS UNDER THE CONTROL OF THAT AGENCY. A-80461, SEPTEMBER 8, 1936, DISTINGUISHED, AND A-96379, JULY 20, 1938, 18 COMP. GEN. 71, AFFIRMED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE RAILROAD RETIREMENT BOARD, AUGUST 3, 1938:

YOUR LETTER OF JULY 27, 1938, IS AS FOLLOWS:

REFERENCE IS MADE TO YOUR LETTER OF JULY 20, 1938 (A-96379), AND TO OUR CONVERSATION OF YESTERDAY RELATING THERETO.

FROM THE OPINION EXPRESSED IN YOUR LETTER AND FROM OUR CONVERSATION, IT IS FAIRLY APPARENT THAT WE DID NOT IN THE PROPOSED FORM OF CONTRACT SUCCEED IN CONVEYING AN ACCURATE IMPRESSION OF THE INTIMATE RELATIONSHIP OF THE SERVICES DESIRED OF MR. HOPF TO THE RESPONSIBILITIES OF THE BOARD RATHER THAN TO THE RESPONSIBILITIES OF THE TREASURY DEPARTMENT IN THE CONSTRUCTION OF THE BUILDING FOR THE BOARD. AS I STATED ORALLY YESTERDAY, THE SERVICES DESIRED OF MR. HOPF RELATE PRIMARILY TO MATTERS WHICH ARE OF PARAMOUNT IMPORTANCE TO THE EFFICIENT FUNCTIONING OF THE BOARD AND TO THE ECONOMICAL ADMINISTRATION OF THE ACT, IRRESPECTIVE OF THE PARTICULAR SPACE TO BE OCCUPIED BY THE BOARD; IN ORDER TO FUNCTION EFFICIENTLY, OPERATIONS MUST BE LAID OUT SO AS TO BE ADAPTED TO THE SPACE OCCUPIED, TO THE EXTENT THAT THE SPACE MAY NOT BE ADAPTED TO THE TYPE OF ORGANIZATION MOST DESIRED. THE PROPOSED CONSTRUCTION OF THE BUILDING MERELY GIVES A DIFFERENT BACKGROUND IN THE CONTEXT OF WHICH THE SERVICES MUST BE PERFORMED AND AFFORDS GREATER ASSURANCE OF PERMANENT SOUNDNESS WITH LESS NECESSITY FOR EXPERIMENTATION.

IT IS DEFINITELY NOT THE INTENTION NOR THE DESIRE OF THE BOARD TO INFRINGE UPON THE JURISDICTION OF ANY OTHER BRANCH OF THE GOVERNMENT, NOR TO ASSUME ANY OF THE RESPONSIBILITIES IMPOSED UPON OTHER BRANCHES OF THE GOVERNMENT. THE BOARD IS, HOWEVER, EXTREMELY ANXIOUS TO DISCHARGE THE RESPONSIBILITIES IMPOSED UPON IT IN THE MOST EFFICIENT AND ECONOMICAL MANNER THAT CAN BE FOUND AND TO BE PREPARED TO FURNISH WITH ASSURANCE TO OTHER BRANCHES OF THE GOVERNMENT SUCH INFORMATION AND DETERMINATIONS AS THEY PROPERLY EXPECT TO RECEIVE. THE COINCIDENCE OF A HIGHLY FORMATIVE STATE IN THE DEVELOPMENT OF AN ORGANIZATION TO DISCHARGE VAST NEW RESPONSIBILITIES IN THE ADMINISTRATION OF AN ENTIRELY NEW VENTURE IN THE FEDERAL GOVERNMENT WITH THE DEVELOPMENT OF PLANS FOR PERMANENT SPACE IN WHICH TO HOUSE THAT ORGANIZATION MAKES THAT RESPONSIBILITY AN EXTREMELY GRAVE ONE, AND THE BOARD FEELS THAT IT WOULD BE DERELICT IN ITS DUTY IF IT DID NOT AVAIL ITSELF OF THE GREATEST SKILL AND EXPERIENCE WHICH IS TO BE HAD IN THAT FIELD.

IN VIEW OF THESE CIRCUMSTANCES, THE PROPOSED FORM OF CONTRACT HAS BEEN REVISED TO MAKE IT ENTIRELY CLEAR UPON THE FACE OF THE CONTRACT THAT THE SERVICES TO BE ENGAGED RELATE SOLELY TO THE DISCHARGE OF THE RESPONSIBILITIES OF THE BOARD IN THE ADMINISTRATION OF THE RAILROAD UNEMPLOYMENT INSURANCE ACT AND DO NOT INFRINGE UPON THE RESPONSIBILITIES OF ANY OTHER BRANCH OF THE GOVERNMENT.

I DESIRE TO CALL PARTICULAR ATTENTION TO THE FACT THAT THE DUTIES ARE DEFINED SOLELY IN TERMS OF THE BOARD'S ORGANIZATION AND FUNCTIONING AND WITHOUT REFERENCE TO ANY PARTICULAR SPACE TO BE OCCUPIED BY THE BOARD. FAR AS PLANS AND DESIGNS FOR SPACE ENTER INTO THE PERFORMANCE OF THE DUTIES, IT IS MADE CLEAR IN THE INTRODUCTORY CLAUSE OF SECTION 2 (A) THAT THE CONSULTANT'S FUNCTIONS ARE TO BE DISCHARGED IN LIGHT OF SUCH PLANS OR DESIGNS AS MAY FROM TIME TO TIME BE PRESENTED OR PROPOSED BY THE PROPER BRANCHES OF THE GOVERNMENT. THE PROPOSED FORM OF CONTRACT DIRECTS SPECIFIC ATTENTION TO THE APPROPRIATION WHICH IS TO BE CHARGED WITH THE EXPENSES AND RECITES THE MAKING OF THOSE FINDINGS AND DETERMINATIONS WHICH IN THE LANGUAGE OF THE APPROPRIATION ARE THE SOLE CONDITIONS UPON WHICH THE FUNDS ARE TO BE AVAILABLE. THE INVESTIGATIONS, FINDINGS, AND DETERMINATIONS REFERRED TO HAVE IN FACT BEEN MADE. THE SERVICES TO BE PERFORMED ARE NOT IN PRINCIPLE DISSIMILAR TO THOSE PERFORMED UNDER MR. HOPF'S CONTRACT WITH THE SOCIAL SECURITY BOARD, DISCUSSED IN YOUR LETTER OF SEPTEMBER 8, 1936 (A-80461). THE TERMS OF THE APPROPRIATION TO BE CHARGED WITH THE EXPENDITURE DIFFER FROM THOSE INVOLVED IN THE CONTRACT WITH THE SOCIAL SECURITY BOARD ONLY IN THAT THE TERMS OF THE APPROPRIATION IN THE RAILROAD UNEMPLOYMENT INSURANCE ACT ARE SOMEWHAT BROADER THAN THOSE IN THE APPROPRIATION FOR THE SOCIAL SECURITY BOARD. IT WOULD APPEAR, THEREFORE, THAT THE AVAILABILITY OF FUNDS FOR THE CONTRACT NOW PROPOSED SHOULD FOLLOW A FORTIORI FROM YOUR DECISION A-80461.

IN VIEW OF THE URGENCY WHICH THE BOARD FEELS FOR GETTING THIS WORK UNDER WAY, YOUR EARLY ATTENTION TO THE QUESTION WHETHER THE EXECUTION OF THE CONTRACT IN THE FORM ATTACHED MIGHT BE PERMITTED WOULD BE GREATLY APPRECIATED.

THE BOARD FEELS DEEPLY AND WISHES TO EXPRESS ITS APPRECIATION FOR THE COURTESIES AFFORDED US AND FOR THE OPPORTUNITY OF DISCUSSING THE ENTIRE MATTER WITH YOU.

THE FORM OF CONTRACT ACCOMPANYING YOUR RESUBMISSION DESCRIBES IN SECTION 2 THEREOF THE SERVICES TO BE PERFORMED AS FOLLOWS:

SECTION 2. CONSULTANT'S SERVICES.--- THE CONSULTANT SHALL RENDER THE FOLLOWING SERVICES IN ADDITION TO ANY OTHER SERVICES REQUIRED FOR THE PROPER PERFORMANCE OF THIS CONTRACT:

(A) IN LIGHT OF SUCH PLANS OR DESIGNS AS MAY FROM TIME TO TIME BE PRESENTED OR PROPOSED BY THE PROPER BRANCHES OF THE GOVERNMENT FOR SPACE IN WHICH TO CARRY ON THE FUNCTIONS OF THE BOARD, CONSIDER, CONSULT WITH THE BOARD UPON, AND PRESENT FOR THE INFORMATION OF ALL OTHER INTERESTED BRANCHES OF THE GOVERNMENT:

(I) THE MOST ECONOMICAL AND EFFICIENT LAYOUTS OF THE SEVERAL PROCESSES INVOLVED IN LARGE VOLUME OPERATIONS INCLUDED IN THE ADMINISTRATION IN THE DISTRICT OF COLUMBIA OF THE RAILROAD UNEMPLOYMENT INSURANCE ACT AND ITS COORDINATION WITH THE ADMINISTRATION OF THE RAILROAD RETIREMENT ACTS.

(II) THE PHYSICAL RELATIONSHIP OF SUCH PROCESSES TO EACH OTHER AND THE PHYSICAL FACILITIES REQUIRED FOR CONDUCTING SUCH PROCESSES AND FOR THE ACCOMMODATION OF THE EMPLOYEES ENGAGED THEREIN.

(III) THE EFFECT OF PHYSIOLOGICAL FACTORS UPON THE EFFECTIVE CONDUCT OF SUCH PROCESSES AND THE MEANS AND METHODS OF PROVIDING PROPER PHYSIOLOGICAL FACTORS.

(IV) THE RELATIVE ADVANTAGES AND DISADVANTAGES OF CONDUCTING EACH OF SUCH PROCESSES IN LARGE AREAS OF UNDIVIDED SPACE OR PARTITIONED SPACE, AND THE AREA BEST ADAPTED TO EACH OF SUCH PROCESSES.

(V) THE ELECTRICAL AND TRANSMISSION SERVICES REQUIRED FOR CONDUCTING SUCH PROCESSES, INCLUDING UNDERFLOOR DUCTS, INTERCOMMUNICATING DEVICES, DUMB- WAITERS, AND OTHER TYPES OF TRANSPORTATION.

(VI) THE AMOUNT OF SPACE REQUIRED BY THE SEVERAL DEPARTMENTS OF THE BOARD AND THE MOST EFFECTIVE LOCATION OF THE DEPARTMENTS IN RELATION TO EACH OTHER.

(VII) THE MOST EFFECTIVE ARRANGEMENT OF OFFICES FOR OCCUPANCY OF THE MEMBERS OF THE BOARD AND ACTIVITIES DIRECTLY ALLIED WITH THEIR OFFICES AND THE APPROPRIATE LOCATION OF SUCH OFFICES IN RELATION TO THE LOCATION OF OTHER OPERATIONS.

(B) REPORTS TO THE BOARD.--- THE CONSULTANT SHALL REPORT TO THE BOARD FROM TIME TO TIME AND IN SUCH FORM AND MANNER AS THE BOARD MAY REQUEST CONCERNING THE DUTIES PERFORMED PURSUANT TO PARAGRAPH (A) OF THIS SECTION.

(C) OTHER SERVICES.--- THE CONSULTANT SHALL:

(I) AFTER RECEIVING NOTICE THEREOF, ATTEND ALL CONFERENCES WITH PERSONS DESIGNATED BY THE BOARD AS ITS REPRESENTATIVES WITH REFERENCE TO ANY SERVICES PERFORMED BY THE CONSULTANT.

(II)UPON REQUEST OF THE BOARD, CONSULT WITH THE BOARD OR OTHER REPRESENTATIVES OF THE UNITED STATES OF AMERICA.

WHILE PHRASED IN SOMEWHAT DIFFERENT LANGUAGE THE SERVICES ARE THE SAME AS DESCRIBED IN THE PROPOSED CONTRACT CONSIDERED IN MY DECISION TO YOU OF JULY 20, 1938, THAT IS, THEY HAVE TO DO WITH THE ARRANGEMENT OF OFFICE SPACE AND WITH THE INSTALLATION OF ELECTRIC WIRING FOR LIGHTS, DUMB- WAITERS, CALL BELLS, AND POSSIBLY INTER-OFFICE TELEPHONES. THESE ARE PROBLEMS OF CONSTRUCTION WHICH ANY COMPETENT ARCHITECT OR CONSTRUCTION ENGINEER SHOULD BE FULLY QUALIFIED TO SOLVE AND WHICH ARE SOLVED REPEATEDLY AND SYSTEMATICALLY IN THE CONSTRUCTION OF THE VARIOUS GOVERNMENT BUILDINGS; AND ARE READILY CARRIED OUT BY CONTACT BETWEEN THE GOVERNMENT AGENCIES CONCERNED. SUCH SERVICES ARE FOR PERFORMANCE BY OR THROUGH THE PROCUREMENT DIVISION, PUBLIC BUILDINGS BRANCH, TREASURY DEPARTMENT, AND INVOLVE APPROPRIATIONS UNDER THE CONTROL OF THAT DEPARTMENT.

THE SERVICES DESIRED BY YOUR BOARD AS DESCRIBED IN THE TWO FORMS OF CONTRACT SUBMITTED BY YOU ARE ESSENTIALLY DIFFERENT FROM THE SERVICES WHICH FORMED THE SUBJECT OF MY DECISION OF SEPTEMBER 8, 1936, A-80461, TO THE SOCIAL SECURITY BOARD, WHICH WERE:

* * * TO ACT AS TECHNICAL SUPERVISOR, UNDER THE DIRECTION AND SUPERVISION OF THE BOARD, OF THE ADMINISTRATION AND OPERATION OF THE BOARD'S SYSTEM OF RECORDS UNDER TITLE II OF THE SOCIAL SECURITY ACT WITH PARTICULAR REFERENCE TO:

THE MACHINERY, INDEX CARDS, FILING OF SERVICE REPORTS TO THE BOARD, CONTROL ACCOUNTS, FLOW OF THE WORK, THE LEDGER, THE TYPES AND NUMBERS OF ACCOUNTING MACHINERY AND SUBSIDIARY ACCOUNTING EQUIPMENT, THE LAYOUT OF THE ACCOUNTING MACHINERY EQUIPMENT, THE EVALUATION OF PROPOSALS MADE BY MANUFACTURERS OF ACCOUNTING EQUIPMENT MACHINERY AND SUPPLIES, THE CONTROL OF TIME STUDIES WITH REFERENCE TO VARIOUS TYPES OF ACCOUNTING EQUIPMENT MACHINES, AND SUCH OTHER MATTERS RELATING TO THE ADMINISTRATION AND OPERATION OF THE BOARD'S SYSTEM OF RECORDS UNDER SAID TITLE II AS THE BOARD MAY DIRECT.

WHETHER THE SERVICES THERE SET FORTH COULD HAVE BEEN PERFORMED BY OTHER AGENCIES OF THE GOVERNMENT IS NOT CLEAR AS IN THE PRESENT INSTANCE BUT HOWEVER THAT MAY BE SAID DECISION IS NO AUTHORITY OUTSIDE OF THAT PARTICULAR CASE.

IN THE CIRCUMSTANCES I MUST ADHERE TO THE CONCLUSION REACHED IN MY FORMER DECISION, THAT IS, THAT THE APPROPRIATION UNDER YOUR CONTROL IS NOT AVAILABLE FOR SERVICES CONTEMPLATED BY EITHER OF THE PROPOSED CONTRACTS.