A-14824, JULY 12, 1926, 6 COMP. GEN. 33

A-14824: Jul 12, 1926

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COOKS' APRONS IS AUTHORIZED WHEN THE VOUCHERS ARE ACCOMPANIED BY A PROPER STATEMENT OF FACTS AND A CERTIFICATE OF THE PURCHASING OFFICER SHOWING THAT THE ARTICLES PURCHASED ARE NECESSARY FROM THE STANDPOINT OF THE GOVERNMENT AND ARE FOR THE USE OF LABORERS OF THE FLOATING OR TRANSIENT TYPE WHO ARE EMPLOYED FOR WHATEVER WORK THAT MAY BE ASSIGNED TO THEM FROM TIME TO TIME. THAT SUCH SUPPLIES ARE NOT TO BE USED BY REGULAR EMPLOYEES IN THE PERFORMANCE OF THE SPECIFIC DUTIES FOR WHICH THEIR SERVICES WERE ENGAGED. WHICH IS BECOMING SERIOUS TO THE EXTENT OF RETARDING PROGRESS ON THE WORK. THIS SITUATION IS SUMMED UP AS FOLLOWS: UNLIKE THE USUAL CONDITIONS EXISTING IN OTHER BRANCHES OF THE GOVERNMENT SERVICE.

A-14824, JULY 12, 1926, 6 COMP. GEN. 33

PERSONAL FURNISHINGS - RUBBER BOOTS, WAITERS' JACKETS, COOKS' APRONS THE PURCHASE OF RUBBER BOOTS, WAITERS' JACKETS, AND COOKS' APRONS IS AUTHORIZED WHEN THE VOUCHERS ARE ACCOMPANIED BY A PROPER STATEMENT OF FACTS AND A CERTIFICATE OF THE PURCHASING OFFICER SHOWING THAT THE ARTICLES PURCHASED ARE NECESSARY FROM THE STANDPOINT OF THE GOVERNMENT AND ARE FOR THE USE OF LABORERS OF THE FLOATING OR TRANSIENT TYPE WHO ARE EMPLOYED FOR WHATEVER WORK THAT MAY BE ASSIGNED TO THEM FROM TIME TO TIME, AND THAT SUCH SUPPLIES ARE NOT TO BE USED BY REGULAR EMPLOYEES IN THE PERFORMANCE OF THE SPECIFIC DUTIES FOR WHICH THEIR SERVICES WERE ENGAGED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, JULY 12, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 15, 1926, REQUESTING A DECISION OF THE QUESTION PRESENTED AS FOLLOWS:

THE CHIEF OF ENGINEERS HAS PLACED BEFORE ME A SITUATION EXISTING IN CONNECTION WITH THE PROSECUTION OF RIVER AND HARBOR OPERATIONS, BROUGHT ABOUT BY THE RESTRICTIONS DURING THE LAST YEAR OR TWO ON THE PURCHASE OF EQUIPMENT FOR EMPLOYEES, OCCASIONED BY CERTAIN OF YOUR DECISIONS PLACING A CONSTRUCTION ON THE LAWS MAKING APPROPRIATIONS FOR SUCH WORKS, WHICH IS BECOMING SERIOUS TO THE EXTENT OF RETARDING PROGRESS ON THE WORK. THIS SITUATION IS SUMMED UP AS FOLLOWS:

UNLIKE THE USUAL CONDITIONS EXISTING IN OTHER BRANCHES OF THE GOVERNMENT SERVICE, THE WORK OF THE ENGINEER DEPARTMENT INVOLVES OPERATIONS WHICH ARE IN MOST CASES FAR REMOVED FROM CONVENIENT SOURCES OF SUPPLIES AND LABOR, SUCH AS LOCK AND DAM CONSTRUCTION, BREAKWATER CONSTRUCTION, LEVEE AND MATTRESS CONSTRUCTION, DREDGING, ETC., SUCH CONDITIONS MAKING THE MATTER OF OBTAINING AND MAINTAINING LABOR FORCES ONE OF THE MOST DIFFICULT AND IMPORTANT CONSIDERATIONS TO COPE WITH. THE DEGREE OF PROGRESS ON SUCH WORK, THEREFORE, IS GOVERNED TO A GREAT EXTENT BY THE CONVENIENCE AND SUFFICIENCY OF SUCH LABOR SUPPLY, AND YEARS OF EXPERIENCE HAVE FULLY DEMONSTRATED THE NECESSITY OF MAKING THE CONDITIONS OF SUCH EMPLOYMENT AS NEARLY COMPETITIVE WITH THOSE EXISTING IN LOCAL COMMERCIAL ENTERPRISES AS POSSIBLE.

IT IS DESIRABLE AND MAY BE OF MATERIAL HELP IN REACHING A DECISION IN THIS MATTER TO HAVE AVAILABLE INFORMATION AS TO SOME OF THE LABOR DIFFICULTIES FACING EMPLOYING OFFICERS IN CONNECTION WITH RIVER AND HARBOR WORK. THE LARGE PERCENTAGE OF LABOR EMPLOYED ON SUCH WORK IS ITINERANT IN NATURE, IGNORANT TO A MARKED DEGREE, AND DIFFICULT TO DEAL WITH. THEY REMAIN A FEW DAYS OR WEEKS AND PASS ON AS THE IMPULSE OF THE MOMENT OR NOTION STRIKES THEM, OR IF THE CONDITIONS OF EMPLOYMENT ARE MORE SEVERE THAN THOSE EXISTING IN AVAILABLE COMMERCIAL EMPLOYMENT. IN FACT, IN MANY LOCALITIES, IN ORDER TO OBTAIN THEM, IT IS NECESSARY TO SEND OUT SCOUTS TO NEIGHBORING TOWNS AND TRANSPORT THEM TO THE WORK, THE NECESSITY BEING SO GREAT IN SOME LOCALITIES AS TO REQUIRE SERVICES OF SUCH SCOUTS CONTINUOUSLY TO KEEP THE PLACES OF THOSE CONTINUALLY LEAVING FILLED. IDEA CAN BE DEDUCED FROM THIS SITUATION OF THE EFFECT OF AN EFFORT TO REQUIRE THEM TO PURCHASE THE EQUIPMENT FROM THEIR OWN FUNDS THAT OTHER EMPLOYERS UNIFORMLY FURNISH JUST AS THEY DO THE TOOLS WITH WHICH THE WORK IS PERFORMED. ALMOST INVARIABLY THEY DO NOT HAVE THE NECESSARY FUNDS, AND IF THEY HAD, THE PLACES TO PURCHASE ARE REMOTE AND A DAY'S TIME WOULD BE LOST TO MAKE THE PURCHASES. WAGES MIGHT BE RAISED SUFFICIENTLY TO TAKE CARE OF THE NECESSARY PURCHASES, BUT THIS COURSE WOULD BE VERY IMPRACTICABLE, AS WELL AS COSTLY TO THE GOVERNMENT, THE FINAL RESULT BEING A GENERAL RAISE IN PAY, BECAUSE WHEN EMPLOYEES, AFTER A FEW DAYS WORK IN MOST CASES, DECIDED TO MOVE, THEY WOULD, OF COURSE, TAKE THEIR EQUIPMENT WITH THEM. COST OF THE WORK WOULD, THEREFORE, BE GREATLY INCREASED. OFFICERS IN CHARGE OF THE WORKS CONSISTENTLY REPORT THAT COMMERCIAL FIRMS FURNISH THE NECESSARY EQUIPMENT FOR THE USE OF THIS CLASS OF EMPLOYEES, AND THAT THEIR PAY IN ADDITION IS NEVER LESS THAN THE RATES PAID BY THE GOVERNMENT IN THE SAME LOCALITIES. THESE CONDITIONS APPLY PARTICULARLY TO EQUIPMENT SUCH AS BOOTS, RAINCOATS, ETC.

ANOTHER CLASS OF EQUIPMENT CONSIDERED ESSENTIAL FOR THE PURPOSE OF SANITATION AND CONSEQUENT EFFICIENT PROGRESS AND PROSECUTION OF THE WORK, IS THE PURCHASE OF WAITERS' JACKETS, COOKS' APRONS, ETC. THE WORK, WITH FEW EXCEPTIONS, IS NOT ACCESSIBLE TO PLACES WHERE FOOD IS OBTAINABLE, AND IT IS NECESSARY TO ESTABLISH MESSES. THIS IS ACCOMPLISHED BY DISTRIBUTING THE EXPENSES THEREOF AMONG THOSE SUBSISTED. MEN ARE PICKED FOR PREPARING AND SERVING THE FOOD FROM THE WORKMEN, AND THEIR CLOTHING IS USUALLY SOILED AND MUDDY. IT WOULD BE AN ACT OF NEGLIGENCE FROM THE STANDPOINT OF SANITATION TO PERMIT THESE MEN TO PREPARE AND SERVE THE FOOD WITHOUT SOME SORT OF COVERING FOR THEIR DIRTY CLOTHING, AND WOULD BE VERY COSTLY TO THE GOVERNMENT IN THE WAY OF COMPENSATION FOR SICKNESS AND DISEASE. IT WOULD BE UNREASONABLE TO EXPECT THE MEN SELECTED TO PROVIDE THEMSELVES WITH THIS EQUIPMENT, SINCE THE TIME EACH MAN IS ENGAGED IN SUCH WORK IS A SMALL FRACTIONAL PART OF THEIR WORKING TIME, IN FACT, THEY ARE THE SAME CLASS OF LABOR AS REFERRED TO IN THE PRECEDING PARAGRAPH, AND IF REQUIRED TO PURCHASE THE EQUIPMENT, THEY WOULD LEAVE THE SERVICE. IT IS A GOVERNMENT RULE ON THE WORK THAT THEY MUST WEAR THIS CLOTHING, AND THE MATTER RESOLVES ITSELF INTO EITHER WAIVING THIS RULE AND PERMITTING THE FOOD TO BE SERVED IN FILTH, OR ENFORCING IT AND FURNISHING EQUIPMENT. OF COURSE, VERY FEW OF THIS CLASS OF LABOR, REALIZE THE BENEFIT OF SANITATION.

UNDER THIS STATEMENT OF CIRCUMSTANCES, IT CAN BE STATED MOST DEFINITELY AND EMPHATICALLY THAT THIS WORK UNDER THE ENGINEER DEPARTMENT CAN NOT BE ACCOMPLISHED AS EXPEDITIOUSLY AND SATISFACTORILY FROM THE GOVERNMENT'S STANDPOINT, WITHOUT SUCH EQUIPMENT, AND THAT THE EQUIPMENT IS NOT SUCH AS THE EMPLOYEE REASONABLY COULD BE REQUIRED TO FURNISH AS PART OF THE PERSONAL EQUIPMENT NECESSARY TO ENABLE HIM TO PERFORM THE REGULAR DUTIES OF THE POSITION TO WHICH HE WAS APPOINTED OR FOR WHICH HIS SERVICES WERE ENGAGED, BOTH OF THE REQUIREMENTS OF THE COMPTROLLER GENERAL BEING ANSWERED IN THE NEGATIVE.

THE APPROPRIATION ACTS OF THE ENGINEER DEPARTMENT ARE WORDED IN VERY GENERAL TERMS WITH NO SPECIFIC AUTHORITY FOR THE PURCHASE OF TOOLS OR ANY OTHER TYPE OF EQUIPMENT BEING PROVIDED FOR. FROM A STRICTLY LEGAL CONSTRUCTION OF THE LAW, THE DISTINCTION BETWEEN EQUIPMENT OF THE TYPE OF TOOLS AND THAT OF PERSONAL EQUIPMENT IS FULLY APPRECIATED AND THE NECESSITY OF SUCH A DISTINCTION IS FULLY REALIZED IN CONNECTION WITH EMPLOYEES APPOINTED TO DESIRABLE POSITIONS INVOLVING THE USE OF SUCH EQUIPMENT IN THE EXECUTION OF THEIR REGULAR DUTIES. A RULING TO THIS EFFECT IS ESSENTIAL IN THE INTERESTS OF THE GOVERNMENT, BUT IT IS BELIEVED THAT THE EQUIPMENT PURCHASED ON RIVER AND HARBOR WORKS FOR THE INTERMITTENT USE OF COMMON LABORERS, MOVING FROM ONE JOB TO ANOTHER AT THE SLIGHTEST PROVOCATION WITHOUT DIFFICULTY AT LABORERS' ESTABLISHED RATES OF PAY, IS NOT PERSONAL EQUIPMENT WITHIN THE MEANING OF THAT TERM AS SET FORTH ABOVE AND IN THE VARIOUS DECISIONS. THE EQUIPMENT IS NOT ISSUED TO ANY CERTAIN EMPLOYEES FOR THEIR INDIVIDUAL USE, BUT IS CARRIED IN STOCK AS ARE TOOLS OR OTHER GOVERNMENT PROPERTY, ACCOUNTED FOR ON PROPERTY RETURNS, AND IS ISSUED TO DIFFERENT EMPLOYEES AT INFREQUENT INTERVALS WHEN CONDITIONS NECESSITATE FOR THE EFFICIENT PROSECUTION OF THE WORK, PROBABLY NOT AMOUNTING TO MORE THAN 30 FULL WORKING DAYS IN A YEAR FOR ANY ONE EMPLOYEE. IT IS BELIEVED, THEREFORE, THAT THIS EQUIPMENT IS MORE IN THE NATURE OF TOOLS THAN PERSONAL EQUIPMENT.

IN VIEW OF THE ABOVE STATEMENT OF FACTS AND CIRCUMSTANCES, IT IS REQUESTED THAT THE COMPTROLLER GENERAL GIVE THIS MATTER HIS CONSIDERATION AND RENDER A DECISION THEREON, FROM WHICH THE VARIOUS PURCHASING AND DISBURSING OFFICERS INVOLVED MAY READILY UNDERSTAND THE CONDITIONS UNDER WHICH PURCHASE OF SUCH EQUIPMENT IS OR IS NOT AUTHORIZED FROM PUBLIC FUNDS, IN ORDER THAT THE EXISTING SITUATION OF UNCERTAINTY AMONG THE VARIOUS DISTRICTS, SOME MAKING THE ESSENTIAL PURCHASES FOR COMMON LABOR HOPING FOR FAVORABLE ACTION, WHILE OTHERS HESITATE FEARING DISALLOWANCE, NOT BEING ABLE TO DETERMINE FROM DECISIONS RENDERED ANY IDEA OF THE PROBABLE ACTION OF THE GENERAL ACCOUNTING OFFICE ON SUCH ITEMS IN THEIR ACCOUNT, ALTHOUGH THE CONDITIONS IN ALL DISTRICTS ARE PRACTICALLY IDENTICAL, MAY BE ELIMINATED AND CONSISTENCY BY REASON OF CLEAR UNDERSTANDING MAINTAINED. IT MAY BE PROPER TO SUGGEST, IN FURTHERANCE OF THE INTERESTS OF THE UNITED STATES, IN CONNECTION WITH THE EFFICIENT AND EXPEDITIOUS PROSECUTION OF THE WORK IN CONSIDERATION OF THE CONDITIONS EXISTING ON RIVER AND HARBOR WORKS IN THE ENGINEER DEPARTMENT, THAT A CONSTRUCTION OF THE LAW FOR THE PURPOSE HEREIN INVOLVED PLACING THE DISTINCTION BETWEEN THE PURCHASE OF EQUIPMENT FROM PUBLIC FUNDS FOR COMMON LABORERS, ITINERANT IN NATURE, WHOSE USE OF SAME IS ONLY INTERMITTENT, AS EXPLAINED ABOVE, AS DISTINGUISHED FROM DESIRABLE POSITIONS REMUNERATIVE AND IN DEMAND, REQUIRING THE USE OF SUCH EQUIPMENT IN CONNECTION WITH THEIR REGULAR DUTIES WHO MUST PURCHASE SAME THEMSELVES, WOULD MATERIALLY AID IN THE PROPER EXECUTION OF THE LAW WITHIN THE APPARENT INTENTION OF CONGRESS, HOLDING SUCH EQUIPMENT FOR THE USE OF SUCH COMMON LABORERS AS IN THE NATURE OF TOOLS WITHIN THE MEANING OF THE VARIOUS DECISIONS RATHER THAN PERSONAL EQUIPMENT. IT CAN BE STATED AS THE OPINION OF EVERY ENGINEER OFFICER ON THE WORKS THAT THERE IS PRACTICALLY THE SAME JUSTIFICATION IN THE PAST PRACTICE OF THE ENGINEER DEPARTMENT FOR THE PURCHASE OF THE EQUIPMENT ABOVE MENTIONED AS FOR THE PURCHASE OF PICKS, SHOVELS, AND WHEELBARROWS.

THIS OFFICE IN THE DECISION OF JANUARY 19, 1924, 3 COMP. GEN. 433, LAID DOWN GENERAL RULES FOR THE GUIDANCE OF ADMINISTRATIVE OFFICERS IN THE PURCHASE OF ARTICLES OF PERSONAL FURNISHINGS WITH A VIEW TO DISPELLING THE UNCERTAINTY PREVIOUSLY EXISTING IN THAT CONNECTION. THE RULES SO LAID DOWN, REASONABLY AND FAIRLY APPLIED, SHOULD ENABLE A PURCHASING OFFICER IN THE MAJORITY, IF NOT ALL, OF THE CASES, TO DETERMINE WHETHER A PARTICULAR PURCHASE IS OR IS NOT AUTHORIZED. THE SUBSEQUENT DECISIONS HAVE MERELY APPLIED TO INDIVIDUAL PURCHASES THE RULES ANNOUNCED IN THE DECISION OF JANUARY 19, 1924, AND ANY CONFUSION THAT MAY EXIST WITH REFERENCE TO THE MATTER IS PROBABLY DUE TO THE TENDENCY OF PURCHASING OFFICERS TO CERTIFY TO A STATEMENT AS TO THE NECESSITY AND USE OF THE ARTICLES SO PURCHASED WITH A VIEW TO BRINGING THE PARTICULAR PURCHASE WITHIN SUCH RULES WITHOUT REGARD TO THE ACTUAL FACTS INVOLVED. THE REQUIREMENT IS AND MUST BE THAT THE CERTIFICATE OF PURCHASING OFFICERS IN SUCH CASES SHOW THE FACTS AND NOT MERELY THEIR PERSONAL OPINION THAT THE PURCHASE IS AUTHORIZED UNDER THE RULES SO LAID DOWN.

IT APPEARS FROM YOUR SUBMISSION THAT YOU ARE MAINLY CONCERNED AT PRESENT WITH THE FURNISHING OF RUBBER BOOTS AND SUCH ARTICLES AS WAITERS' AND COOKS' JACKETS AND APRONS, TO "COMMON LABORERS, ITINERANT IN NATURE, WHOSE USE OF THE SAME IS ONLY INTERMITTENT.' IT MAY BE STATED, WITH RESPECT TO SUCH PURCHASES, THAT CREDIT THEREFOR HAS BEEN AND WILL BE ALLOWED IN THE DISBURSING ACCOUNTS WHEN THE VOUCHERS ARE ACCOMPANIED BY A PROPER STATEMENT OF FACTS AND A CERTIFICATE BY THE PURCHASING OFFICER TO THE EFFECT THAT THE ARTICLES PURCHASED ARE FOR THE USE OF LABORERS OF THE FLOATING OR TRANSIENT TYPE WHO ARE EMPLOYED FOR WHATEVER WORK MAY BE ASSIGNED TO THEM FROM TIME TO TIME, AND ARE NOT TO BE USED BY REGULAR EMPLOYEES IN THE PERFORMANCE OF THE SPECIFIC DUTIES FOR WHICH THEIR SERVICES WERE ENGAGED. 5 COMP. GEN. 413; ID. 586.

THE SITUATION WITH RESPECT TO THE PURCHASE OF SUCH ARTICLES OF PERSONAL FURNISHINGS IN CONNECTION WITH THE WORK OF THE ENGINEER DEPARTMENT WOULD APPEAR TO BE NOT ESSENTIALLY DIFFERENT FROM THAT IN THE RECLAMATION SERVICE OF THE INTERIOR DEPARTMENT. IN THIS CONNECTION ATTENTION IS INVITED TO CIRCULAR LETTER OF NOVEMBER 5, 1925, ISSUED BY THE COMMISSIONER OF THE BUREAU OF RECLAMATION TO THE FIELD OFFICERS OF SAID SERVICE.