A-15735, OCTOBER 1, 1926, 6 COMP. GEN. 225

A-15735: Oct 1, 1926

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IS A NONPERSONAL SERVICE WHICH MAY PROPERLY BE MADE THE SUBJECT OF A CONTRACT. REQUESTING DECISION OF A QUESTION PRESENTED AS FOLLOWS: I HAVE JUST RECEIVED A LETTER FROM THE ACTING SUPERINTENDENT OF YOSEMITE NATIONAL PARK REQUESTING ADVICE AS TO THE LEGALITY OF ESTABLISHING PRICE RATES FOR CERTAIN PIECEWORK TO BE DONE IN THE PARK. IT IS DIFFICULT TO SECURE CONTRACTS AT REASONABLE RATES FOR WOOD OR SHAKES FOR THE REASON THAT THE CUTTING OPERATIONS ARE NOT IN ONE AREA BUT ARE SCATTERED OVER THE PARK FROM PLACED TO PLACE. YOUR ADVICE IS RESPECTFULLY REQUESTED AS TO WHETHER OR NOT THE SUPERINTENDENT OF YOSEMITE NATIONAL PARK IS AUTHORIZED TO PAY FOR THE CUTTING OF WOOD AND THE MAKING OF SHAKES ON A PIECEWORK BASIS.

A-15735, OCTOBER 1, 1926, 6 COMP. GEN. 225

CONTRACTS' NONPERSONAL SERVICES - WOOD CUTTING THE CUTTING OF WOOD AT STIPULATED PRICES PER CORD ON PER THOUSAND SHAKES BEING CAPABLE OF PERFORMANCE IN ACCORDANCE WITH SPECIFICATIONS AND NOT DEPENDENT UPON GOVERNMENT SUPERVISION, IS A NONPERSONAL SERVICE WHICH MAY PROPERLY BE MADE THE SUBJECT OF A CONTRACT, DUE COMPLIANCE WITH SECTIONS 3709 AND 3744 REVISED STATUTES TO BE HAD.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, OCTOBER 1, 1926:

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

I HAVE JUST RECEIVED A LETTER FROM THE ACTING SUPERINTENDENT OF YOSEMITE NATIONAL PARK REQUESTING ADVICE AS TO THE LEGALITY OF ESTABLISHING PRICE RATES FOR CERTAIN PIECEWORK TO BE DONE IN THE PARK. HE REFERS TO A RATE OF $4.00 PER CORD FOR PINE WOOD CUT AND $5.00 PER CORD FOR OAK, ALSO $7.50 PER THOUSAND FOR THE CUTTING OF SHAKES. HERETOFORE THIS WORK HAS BEEN DONE BY DAY LABOR, PAYMENT BEING MADE ON PAY ROLLS. IT WOULD BE ADVANTAGEOUS TO THE GOVERNMENT TO PAY FOR THE CUTTING OF WOOD ON A PIECEWORK BASIS RATHER THAN ON A DAILY-WAGE SCHEDULE. IT IS DIFFICULT TO SECURE CONTRACTS AT REASONABLE RATES FOR WOOD OR SHAKES FOR THE REASON THAT THE CUTTING OPERATIONS ARE NOT IN ONE AREA BUT ARE SCATTERED OVER THE PARK FROM PLACED TO PLACE, THE WOOD BEING CUT FROM DEAD OR INSECT-INFESTED TREES OR OTHERS THAT MUST BE REMOVED FOR ROAD CONSTRUCTION.

YOUR ADVICE IS RESPECTFULLY REQUESTED AS TO WHETHER OR NOT THE SUPERINTENDENT OF YOSEMITE NATIONAL PARK IS AUTHORIZED TO PAY FOR THE CUTTING OF WOOD AND THE MAKING OF SHAKES ON A PIECEWORK BASIS, AS TO WHETHER OR NOT SUCH SERVICE SHOULD BE COVERED BY CONTRACT, AND WHETHER PAYMENT SHOULD BE MADE ON A PAY ROLL FOR PERSONAL SERVICES OR VOUCHERS FOR SERVICES OTHER THAN PERSONAL.

IT IS UNDERSTOOD THAT WHAT IS DESIRED IS TO CONTRACT AN OCCASION DEMANDS WITH AN OUTSIDE AGENCY FOR THE CUTTING OF WOOD AT STIPULATED PRICES PER CORD, OR PER THOUSAND SHAKES, IN LIEU OF EMPLOYING REGULAR DAY LABORERS AT SPECIFIED DAILY WAGES FOR THE PERFORMANCE OF SUCH CUTTING. YOUR REQUEST IS APPARENTLY PROMPTED BECAUSE OF DOUBT AS TO WHETHER THE SERVICES REQUIRED IN THE CUTTING OF WOOD FALL WITHIN THE CATEGORY OF PERSONAL SERVICES, AND, THEREFORE, ARE REQUIRED TO BE PERFORMED BY REGULAR EMPLOYEES OF THE UNITED STATES.

IN THIS CONNECTION IT WAS SAID IN DECISION OF THIS OFFICE DATED SEPTEMBER 4, 1926, A-15437, 6 COMP. GEN. 180, AS FOLLOWS:

THE ESTABLISHED RULE IS THAT PERSONAL SERVICES AS SUCH ARE FOR PERFORMANCE BY REGULAR EMPLOYEES OF THE GOVERNMENT SUBJECT TO PROPER SUPERVISION AND MAY NOT BE PERFORMED OTHERWISE. 5 COMP. GEN. 450, 629, 968. NONPERSONAL SERVICES HAVE BEEN DEFINED AS THOSE NECESSITATING THE FURNISHING OF BOTH PERSONAL SERVICES AND MATERIAL OR SUPPLIES. 5 COMP. GEN. 231. TO THIS DEFINITION OF NONPERSONAL SERVICES MAY ALSO BE ADDED TEMPORARY SERVICES OF LABORERS, MECHANICS, AND MEMBERS OF A RECOGNIZED TRADE OR CRAFT WHEN ENGAGED BY CONTRACT FOR THE PERFORMANCE OF A PARTICULAR JOB FOR WHICH THERE IS AN AVAILABLE APPROPRIATION. 6 COMP. DEC. 314. WHILE SERVICES OF THIS CHARACTER MAY, AND SHOULD BE PERFORMED BY THE REGULAR EMPLOYEES OF THE GOVERNMENT WHEN QUALIFIED AND AVAILABLE, NO OBJECTION WILL BE MADE, WHEN NO REGULAR EMPLOYEES ARE QUALIFIED OR AVAILABLE TO CONTRACTING FOR SUCH SERVICES AFTER DUE COMPLIANCE WITH THE PROVISIONS OF SECTIONS 3709 AND 3744. REVISED STATUTES.

SINCE WHAT IS DESIRED AND REQUIRED IN THIS INSTANCE CAN BE COVERED BY SPECIFICATIONS SO THAT THE BASIS OF PAYMENT AND THE DETERMINATION AS TO WHETHER THE CONTRACT HAS BEEN SATISFACTORILY PERFORMED DO NOT DEPEND UPON GOVERNMENT SUPERVISION OF THE EXECUTION OF THE WORK NOR INVOLVE A CONSIDERATION OF THE QUALIFICATIONS, ABILITIES, INDUSTRY, OR EFFECTIVENESS OF THE INDIVIDUALS PERFORMING THE WORK, THERE WOULD APPEAR TO BE NO REASON WHY THE MATTER SHOULD NOT BE MADE THE SUBJECT OF CONTRACT FOR THE CUTTING OF WOOD RATHER THAN A HIRING OF PERSONAL SERVICES, IT APPEARING FROM YOUR SUBMISSION THE PROPOSED PROCEDURE IS MORE ADVANTAGEOUS TO THE GOVERNMENT, AND THE APPROPRIATION FOR THE ADMINISTRATION, PROTECTION, AND MAINTENANCE OF THE YOSEMITE NATIONAL PARK FOR THE FISCAL YEAR 1927 BEING AVAILABLE FOR THE WORK IN QUESTION. THE REQUIREMENTS OF SECTIONS 3709 AND 3744, REVISED STATUTES, SHOULD, OF COURSE, BE COMPLIED WITH IN THE MAKING OF SUCH CONTRACTS.