A-28286, AUGUST 12, 1929, 9 COMP. GEN. 67

A-28286: Aug 12, 1929

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ADVERTISING - PERSONAL SERVICES - TREE SURGEONS THE SERVICES OF TREE SURGEONS ARE PERSONAL SERVICES TO BE OBTAINED. AS FOLLOWS: ENCLOSED HEREWITH IS A COPY IN DUPLICATE OF A PROPOSED ADVERTISEMENT AND CONTRACT COVERING TREE SURGERY. UNDER THE JURISDICTION OF THIS OFFICE WHICH IS FORWARDED TO YOU WITH THE REQUEST THAT IT BE EXAMINED AND IF APPROVED. WITH THESE CONDITIONS IN MIND IT IS CONSIDERED IMPOSSIBLE TO STATE THE EXACT MONEY VALUE OF WORK TO BE DONE FOR THE REASON THAT THIS OFFICE CAN NOT ANTICIPATE IN ADVANCE STORM DAMAGE. IT IS BELIEVED THAT IF WE HAD A STANDING CONTRACT OF THIS SORT. IN VIEW OF THE FACT THAT IT IS DESIRED TO ADVERTISE UNDER DATE OF AUGUST 20. IT IS REQUESTED THAT IF POSSIBLE YOU GIVE THIS MATTER EARLY CONSIDERATION AND INFORM THIS OFFICE AS TO WHETHER THE PROPOSED ADVERTISEMENT AND CONTRACT WILL BE APPROVED BY YOUR OFFICE IF SUBMITTED IN ITS PRESENT FORM.

A-28286, AUGUST 12, 1929, 9 COMP. GEN. 67

ADVERTISING - PERSONAL SERVICES - TREE SURGEONS THE SERVICES OF TREE SURGEONS ARE PERSONAL SERVICES TO BE OBTAINED, IN THE FIELD, IN ACCORDANCE WITH CIVIL SERVICE LAWS AND THE CLASSIFICATION ACT OF 1923, 42 STAT. 1488, AS AMENDED BY SECTION 3 OF THE ACT OF MAY 28, 1928, 45 STAT. 776, AND EXTENDED TO THE FIELD SERVICE BY THE ACT OF DECEMBER 6, 1924, 43 STAT. 704. A REQUEST IN ADVERTISEMENTS FOR PROPOSALS FOR TREE SURGEONS TO FURNISH VARIOUS ITEMS OF SUPPLIES AND MATERIALS NEEDED IN CONNECTION WITH THEIR WORK DOES NOT CHANGE THE CHARACTER OF THE SERVICES TO BE RENDERED BY THE TREE SURGEONS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, AUGUST 12, 1929:

THERE HAS BEEN RECEIVED, PRESUMABLY BY YOUR DIRECTION, A LETTER DATED AUGUST 8, 1929, FROM THE PURCHASING AND CONTRACTING OFFICER OF THE WASHINGTON GENERAL DEPOT, AS FOLLOWS:

ENCLOSED HEREWITH IS A COPY IN DUPLICATE OF A PROPOSED ADVERTISEMENT AND CONTRACT COVERING TREE SURGERY, BRACING AND FEEDING, AT THE VARIOUS NATIONAL CEMETERIES, BATTLEFIELDS, AND MILITARY PARKS, UNDER THE JURISDICTION OF THIS OFFICE WHICH IS FORWARDED TO YOU WITH THE REQUEST THAT IT BE EXAMINED AND IF APPROVED, RETURNED TO THIS OFFICE IN SUFFICIENT TIME FOR DISTRIBUTION TO PROSPECTIVE BIDDERS PRIOR TO AUGUST 20, 1929.

A LARGE PORTION OF THE WORK TO BE EXECUTED UNDER THIS CONTRACT CONSISTS IN CABLING AND SPLICING OF TREES AFTER STORM DAMAGE, AND ALSO OTHER EMERGENCY TREE SURGERY AND FEEDING. WITH THESE CONDITIONS IN MIND IT IS CONSIDERED IMPOSSIBLE TO STATE THE EXACT MONEY VALUE OF WORK TO BE DONE FOR THE REASON THAT THIS OFFICE CAN NOT ANTICIPATE IN ADVANCE STORM DAMAGE, NOR CAN WE DETERMINE BLIGHTS, PESTS, ROTS, ETC., THAT MAY ATTACK THE TREES AND WHICH WOULD REQUIRE IMMEDIATE ATTENTION.

IT IS BELIEVED THAT IF WE HAD A STANDING CONTRACT OF THIS SORT, MANY VALUABLE TREES WOULD BE SAVED, THE GOVERNMENT WOULD UNQUESTIONABLY RECEIVE MUCH BETTER PRICES, AND THE WORK WOULD BE OF UNIFORM QUALITY AT ALL CEMETERIES.

IN VIEW OF THE FACT THAT IT IS DESIRED TO ADVERTISE UNDER DATE OF AUGUST 20, IT IS REQUESTED THAT IF POSSIBLE YOU GIVE THIS MATTER EARLY CONSIDERATION AND INFORM THIS OFFICE AS TO WHETHER THE PROPOSED ADVERTISEMENT AND CONTRACT WILL BE APPROVED BY YOUR OFFICE IF SUBMITTED IN ITS PRESENT FORM.

THE PROPOSED ADVERTISEMENT REQUESTS PROPOSALS ON SOME 53 ITEMS APPARENTLY NEEDED IN CONNECTION WITH TREE SURGERY, AND ONLY ONE ITEM, THE FIRST, PERTAINS TO TREE SURGEONS BY REQUESTING A UNIT PRICE PER HOUR FOR THEIR SERVICES. ALL OF THE OTHER ITEMS ARE FOR MATERIALS, ETC., IN CONNECTION WITH SUCH WORK IN SOME 33 NATIONAL CEMETERIES LOCATED IN THE DISTRICT OF COLUMBIA AND THE STATES OF VIRGINIA, MARYLAND, SOUTH CAROLINA, NORTH CAROLINA, PENNSYLVANIA, AND WEST VIRGINIA. THE SPECIFICATIONS PROPOSE TO NOTIFY PROSPECTIVE BIDDERS, AMONG OTHER THINGS, THAT---

ALL TREES THAT ARE TO BE TREATED FOR CAVITY WORK, SURGICAL TREATMENT, OR BRACING OF WIND STRESS WILL BE DESIGNATED BY AN AUTHORIZED REPRESENTATIVE OF THE UNITED STATES, UNDER WHOSE DIRECTION ALL WORK SHALL BE SUPERVISED AND APPROVED.

THE MATERIALS NECESSARY FOR THE TREE SURGERY COULD, OF COURSE, BE PURCHASED FROM THE MANUFACTURERS OR DEALERS THEREIN, BUT IT SEEMS TO BE THE PURPOSE OF THE PROPOSED ADVERTISEMENT TO SECURE THE SERVICES OF TREE SURGEONS AND FOR THEM TO FURNISH THE REQUIRED MATERIAL AT SPECIFIED PRICES. WHY THE GOVERNMENT ITSELF DOES NOT PURCHASE THE NECESSARY MATERIAL AND THEREBY EFFECT A SAVING OF THE TREE SURGEONS' PROFIT THEREON IS NOT SHOWN.

HOWEVER, IRRESPECTIVE OF THIS FEATURE OF THE MATTER, THERE IS THE FACT THAT TREE SURGERY INVOLVES NOT ONLY A PERSONAL SERVICE BUT SPECIALIZED KIND OF PERSONAL SERVICE, AND THE FURNISHING OF MATERIAL NECESSARY IN CONNECTION THEREWITH BY THE TREE SURGEONS DOES NOT DISTINGUISH THE BASIC CHARACTER OF THEIR VOCATION FROM THAT OF DENTAL SURGEONS WHO FURNISH THE MATERIALS REQUIRED IN THEIR WORK, AND IN THIS CONNECTION IT MAY BE NOTED THAT THE MAKING OF CONTRACTS FOR DENTAL SURGERY WAS AUTHORIZED ONLY PURSUANT TO SPECIFIC STATUTORY PROVISION THEREFOR. SEE SECTION 18 OF ACT OF FEBRUARY 2, 1901, 31 STAT. 752.

SINCE THERE IS NO LAW SPECIFICALLY AUTHORIZING THE MAKING OF CONTRACTS FOR TREE SURGERY, THE WORK MAY BE ACCOMPLISHED ONLY BY THE EMPLOYMENT OF THE NECESSARY PERSONNEL AND THE PURCHASE OF MATERIALS FOR THEIR USE. IS UNDERSTOOD THAT THE DIRECTOR OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL HAS EMPLOYED A TREE SURGEON WHOSE JOB HAS BEEN CLASSIFIED BY THE PERSONNEL CLASSIFICATION BOARD, AND THE TREE SURGERY WORK UNDER THE SUPERVISION OF THE DIRECTOR IS PERFORMED BY THIS TREE SURGEON WITH THE AID OF NECESSARY LABORERS AND HELPERS EMPLOYED FOR THAT PURPOSE.

IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY FOR THE EMPLOYMENT OF TREE SURGEONS OTHERWISE THERE IS FOR CONSIDERATION THE CIVIL SERVICE LAWS FOR OBTAINING PERSONAL SERVICES, AND THE CLASSIFICATION ACT OF 1923, 42 STAT. 1488, AS AMENDED BY THE ACT OF MAY 28, 1928, 45 STAT. 776, AND EXTENDED BY THE ACT OF DECEMBER 6, 1924, 43 STAT. 704, AND SUBSEQUENT ACTS, TO THE FIELD SERVICES OF THE GOVERNMENT, FOR THE PAYMENT OF SUCH EMPLOYEES IN BOTH THE DEPARTMENTAL AND FIELD SERVICES OF THE GOVERNMENT.

ACCORDINGLY, I HAVE TO ADVISE THAT ITEM 1 OF THE PROPOSED ADVERTISEMENT REQUESTING PROPOSALS FOR "UNIT COST PER HOUR FOR TREE SURGERY" SHOULD BE ELIMINATED, AND THAT IF THE SERVICES OF TREE SURGEONS ARE REQUIRED IN CONNECTION WITH THE MAINTENANCE, ETC., OF NATIONAL CEMETERIES, THEY SHOULD BE OBTAINED IN ACCORDANCE WITH THE CIVIL SERVICE LAWS AND COMPENSATED IN ACCORDANCE WITH THE CLASSIFICATION ACT, AS AMENDED. ANY ADVERTISEMENT FOR NECESSARY SUPPLIES TO BE PURCHASED FROM MANUFACTURERS OR OTHERS FOR USE IN TREE SURGERY WORK SHOULD INDICATE THE APPROPRIATE QUANTITIES OF THE VARIOUS SUPPLIES REQUIRED, WITH A PROVISION FOR REASONABLE VARIANCE THEREFROM. SEE 8 COMP. GEN. 354, 355.

YOU ARE ADVISED THAT THERE IS NO AUTHORITY FOR THE ISSUANCE OF THE PROPOSED ADVERTISEMENT IN ITS PRESENT FORM.