B-174226, JAN 12, 1972

B-174226, JAN 12, 1972

CIVILIAN EMPLOYEE - CONSULTANT SERVICES - METHOD OF PROCUREMENT DECISION ALLOWING CERTIFICATION FOR PAYMENT OF AN INVOICE SUBMITTED BY MRS. MARIAN HENDERSON FOR SIX DAYS OF CONSULTANT SERVICES. THE STATUTORY AUTHORITY OF THE OFFICE OF ECONOMIC OPPORTUNITY, AS PRESCRIBED BY SECTION 602 OF THE ECONOMIC OPPORTUNITY ACT OF 1964, PERMITS THE HIRING OF SUCH SERVICES BY CONTRACT WITHOUT REGARD TO CIVIL SERVICE LAWS AND REGULATIONS. ALTHOUGH THE RECORD IS UNCLEAR AS TO WHETHER CLAIMANT WAS A PERSONAL OR INDEPENDENT CONTRACTOR, THE COMP. GEN. WOULD NOT OBJECT TO THE VOUCHER BEING PROCESSED FOR PAYMENT, SINCE THE UNIT PRICE WAS REASONABLE AND THE SERVICES SEEM TO HAVE BEEN PERFORMED IN GOOD FAITH.

TO MR. ROY B. HOGG:

WE REFER TO YOUR LETTER OF SEPTEMBER 28, 1971, BY WHICH YOU HAVE REQUESTED OUR DECISION AS TO WHETHER THE INVOICE SUBMITTED FOR PAYMENT BY MRS. MARIAN HENDERSON MAY BE CERTIFIED FOR PAYMENT.

THAT INVOICE, FOR THE AMOUNT OF $210, IS FOR PAYMENT TO MRS. HENDERSON FOR SIX DAYS OF CONSULTANT SERVICES, AT THE RATE OF $35 PER DAY, RENDERED IN CONNECTION WITH THE "SEOO EVALUATION." THE PURCHASE ORDER DESCRIBES THOSE SERVICES MORE FULLY AS FOLLOWS:

"SERVICES OF MRS. MARIAN HENDERSON FERNDALE, MICHIGAN FOR EVALUATING SERVICES RENDERED DURING THE SEOO, ILLINOIS, EVALUATION. THE EVALUATION TOOK PLACE FROM JULY 11, THROUGH JULY 16, 1971 UNDER THE DIRECTION OF MR. MILTON HYMAN. MRS. HENDERSON IS A LOW-INCOME INDIVIDUAL AND HAD SPECIAL RESPONSIBILITY IN ASSESSING THE LOW INCOME ADVOCACY ROLE OF THE SEOO."

YOU INDICATE THAT THERE IS NO RECORD OF A STANDARD FORM 50, NOTIFICATION OF PERSONNEL ACTION, SHOWING THE EMPLOYMENT OF MRS. HENDERSON. IN VIEW OF THIS AND THE ABOVE-QUOTED LANGUAGE OF THE PURCHASE ORDER WHICH SUGGESTS THAT AS BETWEEN THE GOVERNMENT AND MRS. HENDERSON THERE EXISTED THE RELATIONSHIP OF EMPLOYER AND EMPLOYEE, YOU HAVE QUESTIONED THE PROPRIETY OF THE USE OF THE PURCHASE ORDER MECHANISM TO SECURE THE SERVICES OF MRS. HENDERSON, INDICATING THAT, IN YOUR OPINION, THIS IS VIOLATION OF THE CIVIL SERVICE LAWS AND REGULATIONS.

IT APPEARS THAT THE SERVICES RENDERED BY MRS. HENDERSON WERE REGARDED BY YOUR AGENCY AS "CONSULTANT" SERVICES. SECTION 3109 OF TITLE 5 OF THE U.S.C. (FORMERLY 5 U.S.C. 55A) AUTHORIZES THE HEAD OF AN AGENCY, WHEN AUTHORIZED BY APPROPRIATION OR OTHER STATUTE, TO PROCURE BY CONTRACT THE TEMPORARY OR INTERMITTENT SERVICES OF EXPERTS AND CONSULTANTS WITHOUT REGARD TO THE PROVISION OF TITLE 5 GOVERNING APPOINTMENT IN THE COMPETITIVE SERVICE. SECTION 602 OF THE ECONOMIC OPPORTUNITY ACT OF 1964, 78 STAT. 528, PROVIDES SUCH AUTHORIZATION AS FOLLOWS:

"SEC. 602. IN ADDITION TO THE AUTHORITY CONFERRED UPON HIM BY OTHER SECTIONS OF THIS ACT, THE DIRECTOR IS AUTHORIZED, IN CARRYING OUT HIS FUNCTIONS UNDER THIS ACT, TO -

"(A) APPOINT IN ACCORDANCE WITH THE CIVIL SERVICE LAWS SUCH PERSONNEL AS MAY BE NECESSARY TO ENABLE THE OFFICE TO CARRY OUT ITS FUNCTIONS, AND, EXCEPT AS OTHERWISE PROVIDED HEREIN, FIX THEIR COMPENSATION IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1949 (5 U.S.C. 1071 ET SEQ.);

"(B) EMPLOY EXPERTS AND CONSULTANTS OR ORGANIZATIONS THEREOF AS AUTHORIZED BY SECTION 15 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 (5 U.S.C. 55A), COMPENSATE INDIVIDUALS SO EMPLOYED AT RATES NOT IN EXCESS OF $100 PER DIEM, INCLUDING TRAVEL TIME, AND ALLOW THEM, WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, TRAVEL EXPENSES (INCLUDING PER DIEM IN LIEU OF SUBSISTENCE) AS AUTHORIZED BY SECTION 5 OF SUCH ACT (5 U.S.C. 73B-2) FOR PERSONS IN THE GOVERNMENT SERVICE EMPLOYED INTERMITTENTLY, WHILE SO EMPLOYED: PROVIDED, HOWEVER. THAT CONTRACTS FOR SUCH EMPLOYMENT MAY BE RENEWED ANNUALLY:"

THE INSTRUCTIONS OF THE CIVIL SERVICE COMMISSION REGARDING EMPLOYMENT OF EXPERTS AND CONSULTANTS, CHAPTER 304 OF THE FEDERAL PERSONNEL MANUAL, ARE APPLICABLE REGARDLESS OF WHETHER THE SERVICES ARE OBTAINED BY APPOINTMENT OR PURSUANT TO CONTRACT PROVIDED THERE IS AN EMPLOYEE EMPLOYER RELATIONSHIP. THE USE OF A PURCHASE ORDER IN LIEU OF THE PRESCRIBED PROCEDURES IN CHAPTER 304, ABOVE, IS NOT SUFFICIENT (WHERE AN EMPLOYEE- EMPLOYER RELATIONSHIP IS CREATED) TO CONSTITUTE THE APPOINTMENT REQUIRED TO BE MADE IN ORDER TO SECURE SUCH SERVICES OF AN EXPERT OR A CONSULTANT. THOSE PROCEDURES, HOWEVER, HAVE NO APPLICATION TO AN INDEPENDENT CONTRACTOR TYPE SITUATION WHERE THERE IS NO EMPLOYEE EMPLOYER RELATIONSHIP. MOREOVER, IT SHOULD BE NOTED, GENERALLY, THAT THE STATUTORY EXPERT AND CONSULTANT AUTHORITY OF YOUR AGENCY SPECIFICALLY PERMITS THE HIRING OF SUCH SERVICES BY CONTRACT WITHOUT REGARD TO CIVIL SERVICE LAWS AND REGULATIONS. THUS, THE USE BY YOUR AGENCY OF EXPERTS AND CONSULTANTS, WHETHER OBTAINED BY APPOINTMENT OR CONTRACT, WOULD NOT VIOLATE THE PROHIBITION IN YOUR INSTRUCTIONS AGAINST OBTAINING SERVICES THROUGH SUPPORT CONTRACTS. WHEN INDEPENDENT CONTRACTOR-TYPE SERVICES ARE REQUIRED, AN APPROPRIATE CONTRACT SHOULD BE EXECUTED.

IN THE INSTANT CASE, THE RECORD IS NOT CLEAR INTO WHICH CATEGORY, PERSONAL OR INDEPENDENT CONTRACTOR, THE SERVICES FIT. HOWEVER, IN VIEW OF THE APPARENT REASONABLENESS OF THE UNIT PRICE, AND SINCE THE SERVICES APPEAR TO HAVE BEEN PERFORMED IN GOOD FAITH UNDER THE EXPERT OR CONSULTANT AUTHORITY, WE WOULD NOT OBJECT TO THE INVOICE, RETURNED HEREWITH, BEING PROCESSED FOR PAYMENT, IF ..END :