A-11609, DECEMBER 31, 1925, 5 COMP. GEN. 450

A-11609, DECEMBER 31, 1925, 5 COMP. GEN. 450

ARLINGTON MEMORIAL BRIDGE COMMISSION - CONTRACTING FOR PERSONAL SERVICES THE EMPLOYMENT OF PERSONAL SERVICES BY CONTRACT, IN CONNECTION WITH THE ARLINGTON MEMORIAL BRIDGE COMMISSION AS AUTHORIZED BY SECTION 3 OF THE ACT OF FEBRUARY 24, 1925, 43 STAT. 975, CONSTITUTES THE PERSONS SO CONTRACTED WITH EMPLOYEES OF THE UNITED STATES SUBJECT TO THE SAME STATUTORY LIMITATIONS ON TRAVELING AND SUBSISTENCE EXPENSES AS ARE APPLICABLE TO REGULAR EMPLOYEES OF THE UNITED STATES. CONTRACTS CONTAINING PROVISIONS OBLIGATING THE UNITED STATES TO PAY UNLIMITED OR INDEFINITE AMOUNTS ARE NOT AUTHORIZED. IN VIEW OF THE PROHIBITION CONTAINED IN SECTION 3737, REVISED STATUTES, THE RIGHT TO TRANSFER OR ASSIGN MAY NOT BE INCLUDED IN A FORMAL CONTRACT. THE AUTHORITY TO DETERMINE WHAT EVIDENCE SHALL BE REQUIRED TO SUPPORT PAYMENTS UNDER A CONTRACT AND WHAT AUDIT SHALL BE MADE OF THE ACCOUNTS AND RECORDS OF THE CONTRACTORS IS VESTED BY LAW IN THE GENERAL ACCOUNTING OFFICE, AND THAT OFFICE MAY NOT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, BE DIVESTED OF ITS JURISDICTION BY ANY CONTRACTUAL AGREEMENT ENTERED INTO BY ADMINISTRATIVE OFFICERS OF THE GOVERNMENT.

COMPTROLLER GENERAL MCCARL TO LIEUT. COL. C. O. SHERRILL, EXECUTIVE AND DISBURSING OFFICER, ARLINGTON MEMORIAL BRIDGE COMMISSION, DECEMBER 31, 1925:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF OCTOBER 17, 1925, REQUESTING DECISION UPON A MATTER PRESENTED AS FOLLOWS:

UNDER AUTHORITY CONTAINED IN SECTION 3 OF THE ACT APPROVED FEBRUARY 24, 1925, CONTRACTS HAVE BEEN ENTERED INTO WITH MCKIM, MEAD AND WHITE, ARCHITECTS, AND WITH MR. W. J. DOUGLAS, CONSULTING ENGINEER, FOR PROFESSIONAL SERVICES IN CONNECTION WITH THE DESIGN AND CONSTRUCTION OF THE ARLINGTON MEMORIAL BRIDGE.

PARAGRAPH 6 OF THE FORMER CONTRACT PROVIDES AS FOLLOWS:

"6. IN CONSIDERATION OF THE COMPLETE AND FAITHFUL PERFORMANCE BY THE ARCHITECTS OF THE COVENANTS AGREED TO IN THIS CONTRACT, THE ARCHITECTS SHALL BE PAID BY THE CONTRACTING OFFICER THE AGGREGATE OF THE FOLLOWING:

"/B) ALL NECESSARY TRAVELING EXPENSES OF THE ARCHITECTS AND THOSE OF THEIR EMPLOYEES WHILE ENGAGED IN MAKING VISITS OR INSPECTIONS IN CONNECTION WITH THE WORK OF THIS CONTRACT, PLUS.'

THE CONTRACT WITH MR. DOUGLAS PROVIDES AS FOLLOWS:

"4. FOR THE SERVICES OF THE CONSULTING ENGINEER, AS SPECIFIED ABOVE, THE CONTRACTING OFFICERS WILL MAKE THE FOLLOWING DESCRIBED PAYMENTS TO THE CONSULTING ENGINEER:

"/C) THE ACTUAL AMOUNT DISBURSED BY THE CONSULTING ENGINEER FOR TRAVELING EXPENSES OUTSIDE OF THE METROPOLITAN DISTRICT OF NEW YORK, WHEN AUTHORIZED BY THE CONTRACTING OFFICER, PROVIDED, HOWEVER, THAT NO PAYMENT WILL BE MADE FOR EXPENSES INCURRED BY THE CONSULTING ENGINEER IN TRAVELING BETWEEN NEW YORK AND WASHINGTON.

"/D) THE ACTUAL AMOUNT DISBURSED BY THE CONSULTING ENGINEER FOR TRAVELING EXPENSES OUTSIDE OF THE METROPOLITAN DISTRICT OF NEW YORK INCURRED BY THE ENGINEERS, COMPUTERS, OR DRAFTSMEN, IN THE EMPLOY OF THE CONSULTING ENGINEER, WHILE ACTUALLY ENGAGED UPON THIS WORK.'

THE FOREGOING PROVISIONS WERE INCLUDED IN THE CONTRACTS, IN ORDER TO KEEP THE PAYMENTS OF THESE SPECIAL PROFESSIONAL SERVICES DOWN TO A MINIMUM AND PREVENT THE CONTRACTORS IN EACH CASE FROM INCREASING THE ITEM OF SALARIES TO INCLUDE A HIGH ALLOWANCE FOR TRAVELING EXPENSES. UNDER THE CONTRACTS AS ENTERED INTO THE AMOUNT OF TRAVEL PERFORMED IS WITHIN THE CONTROL OF THE CONTRACTING OFFICER AND CAN BE KEPT DOWN TO A MINIMUM.

HOWEVER, THE REPRESENTATIVES OF THE CONTRACTORS IN BOTH CASES ARE MEN OF UNUSUALLY HIGH PROFESSIONAL STANDING, WHO ARE ACCUSTOMED AND EXPECT TO STOP AT FIRST-CLASS HOTELS AND TO USE THE MOST CONVENIENT TRANSPORTATION. WHEN ENTERING INTO THE CONTRACTS IT WAS UNDERSTOOD BY BOTH PARTIES THERETO THAT THE QUOTED SECTIONS FULLY COVERED ACTUAL EXPENSES, INCLUDING HOTEL RATES AT FIRST-CLASS HOTELS AND OCCASIONAL TAXICAB OR AUTOMOBILE HIRE, AND THAT PAYMENT FOR THESE WOULD NOT BE LIMITED BY THE GENERAL PROVISIONS OF OTHER APPROPRIATION LAWS EFFECTING THE PAYMENT OF TRAVEL EXPENSES TO GOVERNMENT EMPLOYEES AND LIMITING THE SAME TO A MAXIMUM OF $5.00 A DAY.

IT IS, THEREFORE, PROPOSED TO SAY, UNDER THE TERMS OF THE CONTRACTS, AS QUOTED, FULL AMOUNT OF ALL ACTUAL AND REASONABLE TRAVEL EXPENSES; AND IT IS UNDERSTOOD THAT THE TERMS OF THE CONTRACTS THEMSELVES REQUIRE THIS AND THAT THE ACT FOR THE CONSTRUCTION OF THE MEMORIAL BRIDGE AUTHORIZES SUCH CONTRACTS TO BE MADE. HOWEVER, THE POSSIBILITY WAS FORESEEN THAT YOUR OFFICE MIGHT RAISE A POINT IN THIS REGARD AND TAKE EXCEPTION TO TRAVEL EXPENSE VOUCHERS PAID IN ACCORDANCE WITH THE TERMS OF THE CONTRACTS. IS, THEREFORE, THOUGHT ADVISABLE TO PLACE THE CASE BEFORE YOU IN ADVANCE AND OBTAIN YOUR CONCURRENCE IN THE VIEWS OF THE CONTRACTING OFFICER, IN ORDER TO AVOID POSSIBLE MISUNDERSTANDING AND CORRESPONDENCE IN THE FUTURE.

INFORMATION IS ALSO REQUESTED AS TO WHETHER YOU WILL REQUIRE THE TRAVELING EXPENSES INCURRED UNDER THESE CONTRACTS TO BE SUPPORTED BY SWORN AFFIDAVITS, AS IS REQUIRED FOR THE TRAVELING EXPENSES OF GOVERNMENT EMPLOYEES, OR WHETHER ACCOUNTS CERTIFIED TO BY A PROPERLY AUTHORIZED AGENT OF THE CONTRACTOR WILL BE ACCEPTABLE.

THE ACT OF FEBRUARY 24, 1925, 43 STAT. 974, AUTHORIZING THE CONSTRUCTION OF THE MEMORIAL BRIDGE, PROVIDES:

THAT THE COMMISSION CREATED BY SECTION 23 OF THE ACT APPROVED MARCH 4, 1913 (THIRTY-SEVENTH STATUTES, PAGE 885), IS HEREBY AUTHORIZED AND DIRECTED TO PROCEED AT ONCE WITH THE CONSTRUCTION OF A MEMORIAL BRIDGE ACROSS THE POTOMAC RIVER FROM THE VICINITY OF THE LINCOLN MEMORIAL IN THE CITY OF WASHINGTON TO AN APPROPRIATE POINT IN THE STATE OF VIRGINIA, INCLUDING APPROPRIATE APPROACHES, ROADS, STREETS, BOULEVARDS, AVENUES, AND WALKS LEADING THERETO ON BOTH SIDES OF SAID RIVER, TOGETHER WITH THE LANDSCAPE FEATURES APPERTAINING THERETO, ALL IN ACCORDANCE WITH THE DESIGN, SURVEYS, AND ESTIMATES OF COST TRANSMITTED BY SAID COMMISSION TO CONGRESS UNDER DATE OF APRIL 22, 1924: PROVIDED, THAT SAID COMMISSION MAY MAKE SUCH CHANGES IN DESIGN AND LOCATION OF SAID BRIDGE WITHOUT INCREASING THE TOTAL COST OF THE PROJECT AS IN ITS DISCRETION MAY BE FOUND TO BE NECESSARY OR ADVISABLE.

SEC. 2. THAT THE EXECUTION OF THE PROJECT HEREIN AND HEREBY AUTHORIZED SHALL BE CARRIED OUT UNDER THE GENERAL SUPERVISION OF THE ARLINGTON MEMORIAL BRIDGE COMMISSION IN THE IMMEDIATE CHARGE OF THE EXECUTIVE OFFICER OF THE SAID COMMISSION, AND THAT SAID CONSTRUCTION SHALL BE ENTERED UPON AS SPEEDILY AS PRACTICABLE IN ACCORDANCE WITH THE PLANS SUBMITTED BY THE SAID COMMISSION AND SHALL BE PROSECUTED TO COMPLETION BY CONTRACTS OR OTHERWISE, AS MAY BE MOST ECONOMICAL AND ADVANTAGEOUS TO THE GOVERNMENT AND APPROVED AND ORDERED BY THE SAID COMMISSION IN A TOTAL SUM NOT TO EXCEED $14,750,000. * * *

SEC. 3. THAT THE SAID EXECUTIVE OFFICER OF THE SAID ARLINGTON MEMORIAL BRIDGE COMMISSION IS HEREBY AUTHORIZED, WITH THE APPROVAL OF THE SAID COMMISSION, TO EMPLOY THE SERVICES OF SUCH ENGINEERS, ARCHITECTS, SCULPTORS, ARTISTS, AND OTHER PERSONNEL AS SHALL BE DETERMINED TO BE NECESSARY WITHOUT REFERENCE TO CIVIL SERVICE REQUIREMENTS AND AT RATES OF PAY AUTHORIZED BY SAID COMMISSION: PROVIDED, THAT SUCH OFFICERS OF THE UNITED STATES CORPS OF ENGINEERS AS MAY BE CONSIDERED NECESSARY BY SAID COMMISSION MAY BE DETAILED BY THE PRESIDENT ON THIS WORK FOR SUCH PERIODS AS THE COMMISSION MAY REQUIRE.

AN APPROPRIATION FOR COMMENCING THE CONSTRUCTION OF THE BRIDGE WAS MADE IN THE ACT OF MARCH 4, 1925, 43 STAT. 1316, IN THE FOLLOWING TERMS:

FOR COMMENCING THE CONSTRUCTION OF THE ARLINGTON MEMORIAL BRIDGE ACROSS THE POTOMAC RIVER AT WASHINGTON, AUTHORIZED IN AN ACT ENTITLED "AN ACT TO PROVIDE FOR THE CONSTRUCTION OF A MEMORIAL BRIDGE ACROSS THE POTOMAC RIVER FROM A POINT NEAR THE LINCOLN MEMORIAL IN THE CITY OF WASHINGTON TO AN APPROPRIATE POINT IN THE STATE OF VIRGINIA, AND FOR OTHER PURPOSES," APPROVED FEBRUARY 24, 1925, TO BE EXPENDED IN ACCORDANCE WITH THE PROVISIONS AND CONDITIONS OF THE SAID ACT, $500,000, TO REMAIN AVAILABLE UNTIL EXPENDED.

PURSUANT TO THESE ACTS CONTRACTS HAVE BEEN ENTERED INTO FOR PERSONAL SERVICES TO BE FURNISHED BY THE FIRM OF MCKIM, MEAD AND WHITE, AS ARCHITECTS, AND BY W. J. DOUGLAS, AS CONSULTING ENGINEER. THE CONTRACT FOR ARCHITECTURAL SERVICES PROVIDES:

1. THAT SAID ARCHITECTS SHALL FURNISH SUCH SERVICES IN CONNECTION WITH THE ARTISTIC AND ARCHITECTURAL FEATURES OF THE ARLINGTON MEMORIAL BRIDGE PROJECT AS MAY BE REQUIRED FROM TIME TO TIME BY THE CONTRACTING OFFICER. THESE SERVICES WILL INCLUDE ALL NECESSARY CONFERENCES, STUDIES, AND MODIFICATIONS REQUIRED OF THE PRELIMINARY PLANS HERETOFORE MADE, THE PREPARATION OF WORKING DRAWINGS, LARGE SCALE AND FULL-SIZE DETAIL DRAWINGS, THE PREPARATION OF SPECIFICATIONS, THE PREPARATION OR CHECKING OF SHOP DETAILS, THE INSPECTION OF ARCHITECTURAL WORK AND MATERIAL, RECOMMENDATIONS AS TO MATERIALS BEST FITTED FOR DIFFERENT PARTS OF THE STRUCTURE, AND, IN GENERAL, ADVICE ON ALL MATTERS USUALLY LEFT TO THE SUPERVISION OF ARCHITECTS.

2. ALL MAPS, DRAWINGS, DESCRIPTIONS, ETC., EXECUTED AND DELIVERED UNDER THE TERMS OF THIS CONTRACT SHALL BECOME THE PROPERTY OF THE UNITED STATES.

3. THE ARCHITECTS SHALL BE RESPONSIBLE FOR AND PAY ALL LIABILITIES INCURRED BY THEM FOR SERVICES, LABOR, AND MATERIAL IN THE PROSECUTION OF THE WORK.

4. THE ARCHITECTS SHALL HOLD AND SAVE THE UNITED STATES, AND ALL OFFICERS AND AGENTS THEREOF, HARMLESS FROM AND AGAINST ALL AND EVERY DEMAND, OR DEMANDS, OF ANY NATURE OR KIND FOR, OR ON ACCOUNT OF, THE USE OF ANY PATENTED INVENTION, ARTICLE, OR PROCESS INCLUDED IN THE MATERIALS HEREBY AGREED TO BE FURNISHED AND WORK TO BE DONE UNDER THIS CONTRACT.

5. THE ARCHITECTS SHALL UTILIZE IN CARRYING OUT THE TERMS OF THIS CONTRACT SUCH OF THEIR REGULARLY EMPLOYED TECHNICAL PERSONNEL AS MAY BE NECESSARY, AND SUCH PROFESSIONAL PERSONNEL NOT IN THEIR REGULAR EMPLOY WHOSE EMPLOYMENT MAY BE AUTHORIZED IN ADVANCE BY THE CONTRACTING OFFICER. TO INSURE PROPER COOPERATION BETWEEN THE ARCHITECTURAL AND ENGINEERING DESIGN FORCES, THE ARCHITECTS SHALL MAINTAIN IN THE CITY OF WASHINGTON, IN OFFICE SPACE TO BE PROVIDED BY THE CONTRACTING OFFICER, SUCH REPRESENTATIVES AS MAY BE CONSIDERED NECESSARY OR REQUESTED BY THE CONTRACTING OFFICER.

6. IN CONSIDERATION OF THE COMPLETE AND FAITHFUL PERFORMANCE BY THE ARCHITECTS OF THE COVENANTS AGREED TO IN THIS CONTRACT, THE SAID ARCHITECTS SHALL BE PAID BY THE CONTRACTING OFFICER AN AMOUNT EQUAL TO THEIR COSTS MADE UP OF THE WAGES AND SALARIES PAID BY THEM TO SUCH OF THEIR DRAFTSMEN, SPECIFICATION WRITERS, AND OTHERS OF THEIR REGULARLY EMPLOYED TECHNICAL PERSONNEL FOR SUCH TIMES AS THEY MAY BE ENGAGED SOLELY UPON THIS WORK; PLUS 60 PERCENTUM (60 PERCENT) OF SUCH WAGES AND SALARIES FOR OVERHEAD EXPENSES; PLUS THE ACTUAL SUMS PAID TO OTHER PROFESSIONAL PERSONNEL NOT IN THE REGULAR EMPLOY OF THE ARCHITECTS WHOSE EMPLOYMENT MAY BE AUTHORIZED BY THE CONTRACTING OFFICER AS PROVIDED IN PARAGRAPH 5 ABOVE; PLUS NECESSARY TRAVELING EXPENSES OF SAID ,OTHER PROFESSIONAL PERSONNEL" AND THOSE OF THEIR EMPLOYEES WHILE ENGAGED IN MAKING INSPECTIONS AS PROVIDED IN PARAGRAPH 1 ABOVE; PLUS A PROFESSIONAL FEE FOR THE ARCHITECTS OF $15,000 FOR THE FIRST YEAR; $15,000 FOR THE SECOND YEAR; $15,000 FOR THE THIRD YEAR; $10,000 FOR THE FOURTH YEAR, AND $5,000 IN ALL FOR THE FIFTH TO TENTH YEARS, INCLUSIVE, PROVIDED THAT IF THE PROJECT IS NOT COMPLETE AT THE END OF THE TENTH YEAR FROM THIS DATE THAT A PER DIEM FEE OF $100 PER DAY SHALL BE PAID TO THE SAID ARCHITECTS FOR THEIR PROFESSIONAL SERVICES WHENEVER REQUIRED BY THE CONTRACTING OFFICER; PROVIDED, ALSO, THAT IF THE SAID PROJECT SHALL BE COMPLETED IN LESS THAN TEN YEARS THAT THE TOTAL PROFESSIONAL FEE TO THE ARCHITECTS SHALL BE $60,000 FOR ALL SERVICES RENDERED AS REQUIRED HEREON ON THE COMPLETE PROJECT.

7. PAYMENTS OF THE AMOUNTS AS SPECIFIED IN PARAGRAPH 6 ABOVE WILL BE MADE EACH MONTH UPON CERTIFIED STATEMENTS RENDERED BY THE ARCHITECTS, SUPPORTED BY RECEIPTED SUBVOUCHERS, UNLESS SUCH SUBVOUCHERS ARE SPECIFICALLY EXCEPTED BY THE CONTRACTING OFFICER, AND SUCH AUDITS OF THE ACCOUNTS AND RECORDS OF THE ARCHITECTS AS THE CONTRACTING OFFICER MAY CONSIDER NECESSARY, COVERING THE AMOUNTS EXPENDED BY OR DUE TO THE ARCHITECTS FOR THE PRECEDING MONTH FOR THE VARIOUS ITEMS, I.E., SALARIES OF REGULARLY EMPLOYED PERSONNEL, OVERHEAD EXPENSES, AMOUNTS PAID TO OTHER PROFESSIONAL PERSONNEL, TRAVELING EXPENSES, AND PROFESSIONAL FEE, AS STIPULATED IN PARAGRAPH 6.

12. ANY QUALIFIED ARCHITECT WITH WHOM THE ARCHITECTS MAY ESTABLISH ORIGINAL PARTNERSHIP RELATIONS IN GOOD FAITH DURING THE LIFE OF THIS CONTRACT SHALL BE ENTITLED, IN CASE OF THE DEATH OR DISABILITY OF THE ARCHITECTS ORIGINALLY EXECUTING THE CONTRACT, TO CONTINUE AND COMPLETE THE EXECUTION THEREAFTER AS A SURVIVING PARTNER OF THE FIRM.

THE CONTRACT FOR THE SERVICES OF THE CONSULTING ENGINEER PROVIDES:

2. THE CONSULTING ENGINEER, IN CONSIDERATION OF THE PAYMENTS TO BE MADE BY THE CONTRACTING OFFICER, MORE PARTICULARLY SPECIFIED IN PARAGRAPH 4, AGREES TO SUPPLY THE CONTRACTING OFFICER WITH HIS BEST SERVICES AS FOLLOWS:

3. THE CONSULTING ENGINEER WILL SERVE AND REPORT AND BE RESPONSIBLE TO THE CONTRACTING OFFICER FOR THE FOLLOWING ENGINEERING SERVICES, AND AS SUCH WILL---

(A) ACT AS CONSULTANT TO THE CONTRACTING OFFICER ON ALL MATTERS RELATING TO THE ENGINEERING DESIGN, OR TO THE CONSTRUCTION, OR TO BOTH ENGINEERING DESIGN AND CONSTRUCTION, OF THE ARLINGTON MEMORIAL BRIDGE AT WASHINGTON, D.C., WHICH THE CONTRACTING OFFICER MAY LAY BEFORE HIM;

(B) SUPPLY THE SERVICES OF SUCH ENGINEERS, COMPUTERS, OR DRAFTSMEN, AS MAY BE IN HIS EMPLOY, AND AS MAY BE REQUESTED BY THE CONTRACTING OFFICER, TO ASSIST HIM ON THIS WORK;

(C) MAKE SUCH VISITS TO WASHINGTON, TO CONFER WITH THE CONTRACTING OFFICER, OR TO INSPECT THE WORK, AS MAY BE REQUESTED BY THE CONTRACTING OFFICER; AND (D) MAKE SUCH VISITS OR INSPECTIONS TO OTHER POINTS THAN WASHINGTON, FOR PURPOSES CONNECTED WITH THE ARLINGTON MEMORIAL BRIDGE, AS MAY BE REQUESTED BY THE CONTRACTING OFFICER.

4. FOR THE SERVICES OF THE CONSULTING ENGINEER, AS SPECIFIED ABOVE, THE CONTRACTING OFFICER WILL MAKE THE FOLLOWING-DESCRIBED PAYMENTS TO THE CONSULTING ENGINEER:

(A) FOR SERVICES RENDERED INSIDE THE METROPOLITAN DISTRICT OF NEW YORK, TWO HUNDRED DOLLARS ($200.00) PER DAY, AND FOR THE SERVICES RENDERED IN WASHINGTON, D.C., OR OTHER POINTS OUTSIDE OF THE METROPOLITAN DISTRICT OF NEW YORK, TWO HUNDRED FIFTY DOLLARS ($250.00) PER DAY, PROVIDED, HOWEVER, THAT NO PAYMENT WILL BE MADE FOR SUCH SMALL SERVICES AS MAY INVOLVE NOT MORE THAN ONE-HALF HOUR IN ANY ONE DAY, AND PROVIDED ALSO, THAT THE TOTAL AMOUNT OF THE PER DIEM PAYMENTS JUST DESCRIBED SHALL NOT EXCEED SEVEN THOUSAND FIVE HUNDRED DOLLARS ($7,500.00) IN ANY ONE YEAR.

(B) FOR SUCH SERVICES AS MAY BE RENDERED BY THE ENGINEERS, COMPUTERS, OR DRAFTSMEN IN THE EMPLOY OF THE CONSULTING ENGINEER, WHO MAY BE EMPLOYED UPON THE WORK OF THE ARLINGTON MEMORIAL BRIDGE, THE ACTUAL PAY ROLL COST TO THE CONSULTING ENGINEER FOR THESE ENGINEERS, COMPUTERS, OR DRAFTSMEN, PLUS AN AMOUNT EQUAL TO SIXTY-FIVE PERCENT (65 PERCENT) OF THAT COST FOR OVERHEAD.

(C) THE ACTUAL AMOUNT DISBURSED BY THE CONSULTING ENGINEER FOR TRAVELING EXPENSES OUTSIDE OF THE METROPOLITAN DISTRICT OF NEW YORK, WHEN AUTHORIZED BY THE CONTRACTING OFFICER, PROVIDED, HOWEVER, THAT NO PAYMENT WILL BE MADE FOR EXPENSES INCURRED BY THE CONSULTING ENGINEER IN TRAVELING BETWEEN NEW YORK AND WASHINGTON.

(D) THE ACTUAL AMOUNT DISBURSED BY THE CONSULTING ENGINEER FOR TRAVELING EXPENSES OUTSIDE OF THE METROPOLITAN DISTRICT OF NEW YORK INCURRED BY THE ENGINEERS, COMPUTERS, OR DRAFTSMEN, IN THE EMPLOY OF THE CONSULTING ENGINEER, WHILE ACTUALLY ENGAGED UPON THIS WORK.

5. PAYMENTS OF THE AMOUNTS AS SPECIFIED IN PARAGRAPH 4 ABOVE WILL BE MADE EACH MONTH UPON CERTIFIED STATEMENTS RENDERED BY THE CONSULTING ENGINEER AND SUPPORTED BY RECEIPTED SUBVOUCHERS, UNLESS SUCH SUBVOUCHERS ARE SPECIFICALLY EXCEPTED BY THE CONTRACTING OFFICER, AND BY SUCH AUDITS OF THE ACCOUNTS AND RECORDS OF THE CONSULTING ENGINEER AS THE CONTRACTING OFFICER MAY CONSIDER NECESSARY, COVERING THE AMOUNTS EXPENDED BY OR DUE TO THE CONSULTING ENGINEER FOR THE PRECEDING MONTH FOR THE VARIOUS ENUMERATED IN PARAGRAPH 4.

6. ALL MAPS, DRAWINGS, DESCRIPTIONS, ETC., EXECUTED AND DELIVERED BY THE CONSULTING ENGINEER, UNDER THE TERMS OF THIS CONTRACT, SHALL BECOME THE PROPERTY OF THE UNITED STATES.

THE AUTHORITY IN SECTION 3 OF THE ACT OF FEBRUARY 24, 1925, SUPRA, IS "TO EMPLOY THE SERVICES OF SUCH ENGINEERS, ARCHITECTS, SCULPTORS, ARTISTS, AND OTHER PERSONNEL AS SHALL BE DETERMINED TO BE NECESSARY WITHOUT REFERENCE TO CIVIL SERVICE REQUIREMENTS AND AT RATES OF PAY AUTHORIZED BY SAID COMMISSION.' PERSONS EMPLOYED UNDER THIS SECTION OF THE ACT, WHETHER BY CONTRACT OR OTHERWISE, ARE NEVERTHELESS EMPLOYEES OF THE UNITED STATES FOR THE PERIOD OF SUCH EMPLOYMENT. THEIR TRAVELING EXPENSES AND SUBSISTENCE, ARE, THEREFORE, SUBJECT TO THE LIMITATIONS PRESCRIBED BY THE ACTS OF APRIL 6, 1914, 38 STAT. 318, AND AUGUST 1, 1914, 38 STAT. 680, AND REIMBURSEMENT THEREFOR CAN BE MADE ONLY ON PROPERLY ITEMIZED VOUCHERS EXECUTED UNDER OATH AND SUPPORTED BY SUBVOUCHERS RECEIPTS, ETC., AS IN THE CASE OF OTHER EMPLOYEES OF THE GOVERNMENT. FURTHERMORE, SAID PROVISION CONTEMPLATES A DIRECT EMPLOYMENT OF THE PERSONAL SERVICES OF THE CHARACTER INDICATED, AND NOT AN AGREEMENT OR CONTRACT WITH AN OUTSIDE AGENCY TO FURNISH SUCH SERVICES ON A COST-PLUS BASIS, AS IS PROVIDED FOR UNDER THE TWO CONTRACTS HERE IN QUESTION.

THE CONTRACTS ARE ALSO OBJECTIONABLE IN THE FOLLOWING PARTICULARS:

1. THE ARCHITECTURAL SERVICE CONTRACT IN PARAGRAPH 12 WOULD PERMIT THE TRANSFER OR ASSIGNMENT OF THE CONTRACT TO ANY ARCHITECT WHO MAY THEREAFTER BECOME A PARTNER AND CONTINUE AS A SURVIVING MEMBER OF THE FIRM. THIS IS IN DIRECT CONTRAVENTION OF SECTION 3737, REVISED STATUTES.

2. THIS CONTRACT ALSO PROVIDES FOR A "PROFESSIONAL FEE, AT A FLAT RATE PER ANNUM WITHOUT SPECIFYING THE NUMBER OF PERSONS WHOSE SERVICES ARE TO BE FURNISHED. IF IT CONTEMPLATES THE SERVICES OF ONLY ONE MEMBER OF THE FIRM AT A TIME IT EXCEEDS THE MAXIMUM SALARY AUTHORIZED BY THE CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1488. 4 COMP. GEN. 1077; 5 ID. 73.

3. BOTH CONTRACTS PURPORT TO AUTHORIZE THE CONTRACTORS TO UTILIZE THEIR PRESENT OFFICE FORCES AND TO EMPLOY ADDITIONAL PERSONNEL IN CONNECTION WITH THE SUBJECT MATTER OF THE CONTRACTS, REIMBURSEMENT TO BE MADE TO THE CONTRACTORS FOR ALL WAGES AND SALARIES PAID BY THEM TO SUCH EMPLOYEES FOR THE TIME ENGAGED SOLELY ON SUCH WORK, PLUS 60 AND 65 PERCENT, RESPECTIVELY, OF SUCH EXPENDITURES, AS OVERHEAD, NO LIMIT BEING PRESCRIBED TO THE AMOUNT FOR WHICH THE UNITED STATES MIGHT BE OBLIGATED UNDER SUCH PROVISIONS. NO CONTRACTING OFFICER OF THE GOVERNMENT IS AUTHORIZED THUS TO INCUR OBLIGATIONS INVOLVING PAYMENT OF AN INDEFINITE AND UNCERTAIN SUM THAT MAY EXCEED THE APPROPRIATION AND WHICH IS INCAPABLE OF DEFINITE ASCERTAINMENT FROM THE TERMS OF THE CONTRACT. 15 COMP. DEC. 407; 3 COMP. GEN. 117, 140. ALSO, WHAT OVERHEAD EXPENSE JUSTIFIES SUCH A HIGH PERCENTAGE DOES NOT APPEAR. IN ADDITION THE ARCHITECTS ARE TO RECEIVE FEES SCALED AT $15,000 ANNUALLY OVER 10 YEARS, TO A TOTAL OF $60,000.

4. NOTWITHSTANDING THE CONTRACTS PRESUMABLY WERE INTENDED TO OBTAIN PERSONAL SERVICES OF A HIGH GRADE INVOLVING SPECIAL TECHNICAL TRAINING AND PROFESSIONAL QUALIFICATIONS, THEY DO NOT SPECIFY THE PERSONS WHO ARE TO RENDER THE SERVICE, NOR IS THERE ANY PROVISION IN THE CONTRACTS PRESCRIBING A STANDARD OR BASIS BY WHICH THE SUFFICIENCY AS TO CHARACTER OR EXTENT OF SERVICES REQUIRED MAY BE DETERMINED.

5. PARAGRAPHS 7 OF THE ARCHITECTURAL CONTRACT AND 5 OF THE ENGINEERING CONTRACT PURPORT TO VEST IN THE CONTRACTING OFFICER THE AUTHORITY TO DETERMINE THE EVIDENCE THAT SHALL BE REQUIRED TO SUPPORT PAYMENTS UNDER THE CONTRACTS AND THE AUDIT THAT SHALL BE MADE OF THE ACCOUNTS AND RECORDS OF THE CONTRACTORS. IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR SUCH PROVISIONS IN A CONTRACT ARE VOID FOR THE REASON THAT THE DUTIES AND RESPONSIBILITIES OF DETERMINING THE SUFFICIENCY OF EVIDENCE IN SUPPORT OF PAYMENTS MADE BY DISBURSING OFFICERS AND OF ADJUSTING AND SETTLING CLAIMS ARISING UNDER GOVERNMENT CONTRACTS INVOLVING PAYMENTS FROM APPROPRIATED MONEYS ARE VESTED BY LAW IN THE GENERAL ACCOUNTING OFFICE, AND SUCH MATTERS CAN NOT PROPERLY BE MADE THE SUBJECT OF CONTRACT. THE JURISDICTION AND AUTHORITY OF ADMINISTRATIVE OFFICERS IN THE MATTER OF OBLIGATING APPROPRIATED MONEYS BY CONTRACT EXTENDED ONLY TO SUCH PROVISIONS AS MAY BE NECESSARY TO OBTAIN, IN THE MANNER PRESCRIBED BY LAW, THE MATERIALS, SERVICES, AND SUPPLIES FOR WHICH THE APPROPRIATION SOUGHT TO BE OBLIGATED IS AVAILABLE, AND SUCH OFFICERS CAN NOT BY CONTRACT ACQUIRE JURISDICTION OR AUTHORITY TO DETERMINE THE LEGALITY OF PAYMENTS UNDER SAID CONTRACTS OR TO ADJUST AND SETTLE CLAIMS ARISING THEREUNDER.

ACCORDINGLY, I AM CONSTRAINED TO HOLD THAT THE CONTRACTS IN QUESTION ARE NOT AUTHORIZED UNDER EXISTING LAW.