A-16868, JANUARY 15, 1927, 6 COMP. GEN. 474

A-16868: Jan 15, 1927

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IS A PERSONAL SERVICE TO BE PERFORMED BY REGULAR EMPLOYEES OF THE GOVERNMENT ENGAGED BY DIRECT EMPLOYMENT IN ACCORDANCE WITH THE CLASSIFICATION ACT. WAS ENTERED INTO AFTER SUBMITTING PROPOSALS FOR SUCH SERVICES TO A NUMBER OF FIRMS ENGAGED IN THAT CLASS OF BUSINESS AND THE AWARD WAS MADE TO THE LOWEST BIDDER. IS PERSONAL SERVICE FOR PERFORMANCE BY REGULAR EMPLOYEES UNDER PROPER ADMINISTRATIVE SUPERVISION. THE POSITION OF JANITOR AND LIKE POSITIONS HAVE BEEN CLASSIFIED IN THE CUSTODIAL GRADES UNDER THE CLASSIFICATION ACT OF 1923. WHICH WAS EXTENDED TO THE FIELD SERVICE OF THE VETERANS' BUREAU BY THE ACT OF DECEMBER 6. THERE IS ACCORDINGLY NO AUTHORITY TO EMPLOY JANITORS AND PAY COMPENSATION FOR SUCH SERVICES OTHERWISE THAN IN ACCORDANCE WITH THE CLASSIFICATION ACT. 6 COMP.

A-16868, JANUARY 15, 1927, 6 COMP. GEN. 474

PERSONAL SERVICES, JANITORS - ADVERTISING, TOWEL SERVICE JANITOR SERVICE FOR PREMISES LEASED TO THE GOVERNMENT, WHEN NOT REQUIRED TO BE FURNISHED BY THE LESSOR UNDER THE PROVISIONS OF THE LEASE, IS A PERSONAL SERVICE TO BE PERFORMED BY REGULAR EMPLOYEES OF THE GOVERNMENT ENGAGED BY DIRECT EMPLOYMENT IN ACCORDANCE WITH THE CLASSIFICATION ACT. THE ALLEGED REFUSAL OF THE LESSOR OF PREMISES LEASED TO THE UNITED STATES TO PERMIT ANY OTHER TOWEL SERVICE THAN THE ONE SELECTED BY IT TO SERVE THE LESSEES IN THE BUILDING DOES NOT WARRANT THE PLACING OF THE TOWEL-SERVICE CONTRACT WITHOUT ADVERTISING, AS THE LESSOR HAS NO LEGAL RIGHT TO DICTATE OR RESTRICT THE OPERATION OF GOVERNMENT BUSINESS.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, JANUARY 15, 1927:

THE ATTENTION OF THIS OFFICE HAS BEEN CALLED TO THE CONTRACT BETWEEN YOUR BUREAU AND THE SUPERIOR WINDOW CLEANING CO. (INC.) FOR JANITOR SERVICE FOR THE THIRD, FOURTH, AND FIFTH FLOORS, OCCUPIED BY THE VETERANS' BUREAU, IN THE PENNSYLVANIA BUILDING, 225-241 WEST THIRTY FOURTH STREET, NEW YORK CITY. THE CONTRACT WITH THE SUPERIOR WINDOW CLEANING CO. (INC.) WAS ENTERED INTO AFTER SUBMITTING PROPOSALS FOR SUCH SERVICES TO A NUMBER OF FIRMS ENGAGED IN THAT CLASS OF BUSINESS AND THE AWARD WAS MADE TO THE LOWEST BIDDER. JANITOR SERVICE, HOWEVER, FOR LEASED PREMISES, WHEN NOT REQUIRED OF THE LESSOR UNDER THE TERMS OF THE LEASE, IS PERSONAL SERVICE FOR PERFORMANCE BY REGULAR EMPLOYEES UNDER PROPER ADMINISTRATIVE SUPERVISION.

THE VETERANS' BUREAU APPROPRIATION FOR THE FISCAL YEAR 1927, ACT OF APRIL 22, 1926, 44 STAT. 319, PROVIDES FOR "SALARIES OF PERSONNEL IN THE DISTRICT OF COLUMBIA AND ELSEWHERE IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923.' THE POSITION OF JANITOR AND LIKE POSITIONS HAVE BEEN CLASSIFIED IN THE CUSTODIAL GRADES UNDER THE CLASSIFICATION ACT OF 1923, 42 STAT. 1488, WHICH WAS EXTENDED TO THE FIELD SERVICE OF THE VETERANS' BUREAU BY THE ACT OF DECEMBER 6, 1924, 43 STAT. 705, BY AN APPROPRIATION OF $1,225,000 TO ENABLE THE ADJUSTMENT OF THE COMPENSATION OF THE FIELD FORCES OF THAT BUREAU IN ACCORDANCE THEREWITH. THERE IS ACCORDINGLY NO AUTHORITY TO EMPLOY JANITORS AND PAY COMPENSATION FOR SUCH SERVICES OTHERWISE THAN IN ACCORDANCE WITH THE CLASSIFICATION ACT. 6 COMP. GEN. 141; ID. 364.

FURTHERMORE, THE WORK TO BE PERFORMED WAS NOT TO BE DONE BY THE CONTRACTOR PERSONALLY, BUT BY EMPLOYEES SELECTED BY IT. IN OTHER WORDS, THE DUTY OF SELECTING EMPLOYEES QUALIFIED TO PERFORM PERSONAL SERVICES FOR THE UNITED STATES WAS TRANSFERRED TO THE CONTRACTOR INSTEAD OF BEING PERFORMED BY PROPER ADMINISTRATIVE OFFICERS. THE DELEGATION OF ADMINISTRATIVE DUTIES TO OTHERS BY CONTRACT IS NOT AUTHORIZED. 6 COMP. GEN. 51. SEE ALSO UNDERWOOD V. UNITED STATES, DECIDED BY THE COURT OF CLAIMS JUNE 14, 1926.

THERE HAS ALSO BEEN CALLED TO THE ATTENTION OF THIS OFFICE CONTRACTS WITH THE HARTFORD APRON AND TOWEL SUPPLY CO., DATED JUNE 7, 1926, NOS. 1718 AND 1740, FOR FURNISHING LAUNDRY TOWEL SERVICE FOR THE USE OF THE EMPLOYEES AND THE MEDICAL AND DENTAL CLINIC IN THE PREMISES AT 983 MAIN STREET, HARTFORD, CONN. THESE CONTRACTS WERE LET WITHOUT COMPETITION, IT BEING STATED IN EXPLANATION THEREOF THAT "THIS COMPANY IS THE ONLY ONE PERMITTED BY THE OWNERS OF THE AMERICAN INDUSTRIAL BUILDING TO GIVE TOWEL SERVICES TO THE TENANTS.' THE LEASES COVERING THE RENTAL OF SPACE IN THE BUILDING IN QUESTION HAVE BEEN EXAMINED, BUT NOTHING IS FOUND THEREIN WHICH WOULD JUSTIFY ANY SUCH RESTRICTION ON THE PART OF THE LESSOR. IN THE ABSENCE OF SUCH A PROVISION IN THE LEASE, THE LESSOR IS WITHOUT AUTHORITY TO INTERFERE IN THE MANNER IN WHICH THE GOVERNMENT CONDUCTS ITS BUSINESS, AND ANY SUCH ATTEMPT ON THE PART OF THE LESSOR OR OWNERS OF THE BUILDING BEING WHOLLY UNWARRANTED FURNISHES NO LEGAL JUSTIFICATION FOR FAILURE TO COMPLY WITH THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES.

IN VIEW OF THE CONDITIONS UNDER WHICH THE ABOVE CONTRACTS WERE ENTERED INTO, CREDIT WILL BE ALLOWED FOR ALL PAYMENTS THEREUNDER FOR SERVICES RENDERED PRIOR TO MARCH 1, 1927. PROMPT NOTICE SHOULD BE GIVEN OF THE TERMINATION OF THE RESPECTIVE CONTRACTS AND STEPS SHOULD BE TAKEN TO ENGAGE ANY NECESSARY JANITOR SERVICE BY DIRECT EMPLOYMENT AND TO ADVERTISE AND RELET THE TOWEL SUPPLY CONTRACTS TO THE LOWEST QUALIFIED BIDDER. IS NOTED THAT ALL OF THE CONTRACTS IN QUESTION ARE SUBJECT TO TERMINATION UPON 10 DAYS' NOTICE.