A-4558, OCTOBER 6, 1924, 4 COMP. GEN. 356

A-4558: Oct 6, 1924

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FOR THE PURCHASE OF CERTAIN TRACTS OF LAND IN THE DISTRICT OF COLUMBIA AS SITES FOR GOVERNMENT BUILDINGS CONTAINED NO SPECIFIC AUTHORIZATION FOR THE EMPLOYMENT OF PERSONAL SERVICES AT THE SEAT OF GOVERNMENT AND WAS NOT APPLICABLE TO THE PAYMENT OF COMMISSIONS TO A REAL ESTATE BROKER EMPLOYED UNDER A PRIOR CONTRACT TO SECURE OPTIONS ON THE LAND AND TO PERFORM CERTAIN OTHER SERVICES INCIDENT TO ITS ACQUISITION. THE NEGOTIATING FOR THE PURCHASE OF LAND IN THE DISTRICT OF COLUMBIA FOR THE UNITED STATES IS AN ADMINISTRATIVE DUTY WHICH MAY NOT BE DELEGATED BY A COMMISSION CHARGED THERE WITH TO OTHER THAN A RESPONSIBLE OFFICER OF THE GOVERNMENT. THE FACT THAT SUCH COMMISSION MAY NOT HAVE POSSESSED OFFICERS OR EMPLOYEES QUALIFIED TO PERFORM SUCH SERVICE ON ITS BEHALF DID NOT JUSTIFY THE PROCUREMENT FOR THE PURPOSE OF THE SERVICES OF A REAL ESTATE BROKER OR AUTHORIZE PAYMENT TO HIM OF COMMISSIONS FOR HIS SERVICES OUT OF AN APPROPRIATION WHICH CONTAINED NO SPECIFIC AUTHORIZATION FOR PERSONAL SERVICE AT THE SEAT OF GOVERNMENT.

A-4558, OCTOBER 6, 1924, 4 COMP. GEN. 356

PERSONAL SERVICES - REAL ESTATE BROKER THE APPROPRIATION IN THE ACT OF JUNE 12, 1922, 42 STAT. 646, FOR THE PURCHASE OF CERTAIN TRACTS OF LAND IN THE DISTRICT OF COLUMBIA AS SITES FOR GOVERNMENT BUILDINGS CONTAINED NO SPECIFIC AUTHORIZATION FOR THE EMPLOYMENT OF PERSONAL SERVICES AT THE SEAT OF GOVERNMENT AND WAS NOT APPLICABLE TO THE PAYMENT OF COMMISSIONS TO A REAL ESTATE BROKER EMPLOYED UNDER A PRIOR CONTRACT TO SECURE OPTIONS ON THE LAND AND TO PERFORM CERTAIN OTHER SERVICES INCIDENT TO ITS ACQUISITION, SUCH EMPLOYMENT AND PAYMENT BEING PROHIBITED BY SECTION 4 OF THE ACT OF AUGUST 5, 1882, 22 STAT. 255. THE NEGOTIATING FOR THE PURCHASE OF LAND IN THE DISTRICT OF COLUMBIA FOR THE UNITED STATES IS AN ADMINISTRATIVE DUTY WHICH MAY NOT BE DELEGATED BY A COMMISSION CHARGED THERE WITH TO OTHER THAN A RESPONSIBLE OFFICER OF THE GOVERNMENT, AND THE FACT THAT SUCH COMMISSION MAY NOT HAVE POSSESSED OFFICERS OR EMPLOYEES QUALIFIED TO PERFORM SUCH SERVICE ON ITS BEHALF DID NOT JUSTIFY THE PROCUREMENT FOR THE PURPOSE OF THE SERVICES OF A REAL ESTATE BROKER OR AUTHORIZE PAYMENT TO HIM OF COMMISSIONS FOR HIS SERVICES OUT OF AN APPROPRIATION WHICH CONTAINED NO SPECIFIC AUTHORIZATION FOR PERSONAL SERVICE AT THE SEAT OF GOVERNMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 6, 1924:

IN CONNECTION WITH THE SETTLEMENT OF THE ACCOUNTS OF EDWARD F. BATCHELOR, DISBURSING CLERK, STATE, WAR, AND NAVY DEPARTMENTS BUILDINGS, FOR THE PERIOD JULY 1 TO SEPTEMBER 30, 1923, THERE IS FOR CONSIDERATION AND DECISION THE QUESTION WHETHER PAYMENTS AGGREGATING $10,437.60 MADE TO EDWARD P. SCHWARTZ, REAL ESTATE BROKER, IN COMMISSIONS OR BROKERAGE FEES AS REIMBURSEMENT FOR PERSONAL SERVICES PERFORMED IN SECURING OPTIONS TO PURCHASE FOR THE GOVERNMENT ON CERTAIN TRACTS OF LAND OCCUPIED BY TEMPORARY GOVERNMENT BUILDINGS ARE A PROPER CHARGE AGAINST THE APPROPRIATION FOR THE PURCHASE OF SUCH SITES PROVIDED BY THE ACT OF JUNE 12, 1922, 42 STAT. 646.

THE ACT IN QUESTION PROVIDED AS FOLLOWS:

THE COMMISSION IN CHARGE OF THE STATE, WAR AND NAVY DEPARTMENTS BUILDINGS, TO WIT, THE SECRETARY OF STATE, THE SECRETARY OF WAR, AND THE SECRETARY OF THE NAVY, IS HEREBY AUTHORIZED AND DIRECTED TO ACQUIRE BY PURCHASE, SO FAR AS THEY MAY BE ABLE TO AT PRICES DEEMED BY THEM TO BE REASONABLE AND FAIR, OTHERWISE BY CONDEMNATION IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF CONGRESS, APPROVED AUGUST 30, 1890, PROVIDING FOR A SITE FOR THE ENLARGEMENT OF THE GOVERNMENT PRINTING OFFICE, THE FOLLOWING SQUARES OF LAND FOR PUBLIC PURPOSES, TO WIT, THE WHOLE OF SQUARES KNOWN AS NUMBERS EAST OF EIGHTY-SEVEN; EAST OF EIGHTY EIGHT; ONE HUNDRED AND TWENTY-FOUR; ONE HUNDRED AND TWENTY-FIVE; ONE HUNDRED AND FORTY-FIVE; ONE HUNDRED AND FORTY-SIX; AND ONE HUNDRED AND FORTY-SEVEN, IN THE CITY OF WASHINGTON, DISTRICT OF COLUMBIA. THE COMMISSION IS FURTHER AUTHORIZED TO REDUCE THE AREA TO BE ACQUIRED WHERE BE REASON OF IMPROVEMENTS CONSTRUCTED, OR UNREASONABLE PRICES ASKED, OR FOR OTHER REASONS IN THEIR JUDGMENT THE PUBLIC INTERESTS MAY EQUIRE: PROVIDED, THAT IF ACQUIRED BY PURCHASE, THE COST OF THE SQUARES, INCLUDING EXPENSES INCIDENT THERETO, SHALL NOT EXCEED THE SUM OF $1,500,000, WHICH SUM IS HEREBY AUTHORIZED AND THE SAME IS HEREBY APPROPRIATED: PROVIDED FURTHER, THAT THE SQUARES AUTHORIZED TO BE ACQUIRED HEREIN SHALL BE UNDER THE CONTROL OF THE SUPERINTENDENT OF THE STATE, WAR, AND NAVY DEPARTMENTS BUILDINGS.

THE FACTS PRESENTED SHOW THAT UNDER DATE OF APRIL 24, 1922, WHICH IT IS NOTED WAS PRIOR TO THE PASSAGE OF THE APPROPRIATION ACT, THE SUPERINTENDENT OF THE STATE, WAR AND NAVY DEPARTMENTS BUILDINGS, ENTERED INTO CONTRACT WITH EDWARD P. SCHWARTZ, WASHINGTON, D.C., FOR HIS PERSONAL SERVICES IN SECURING OPTIONS ON THE LAND AUTHORIZED TO BE PURCHASED UNDER THE QUOTED APPROPRIATION ACT AND TO PERFORM CERTAIN OTHER SERVICES INCIDENT TO THE ACQUISITION OF SAID LAND. THE CONTRACT PROVIDED AS COMPENSATION AND REIMBURSEMENT FOR EXPENSES A FEE OR COMMISSION AMOUNTING TO 3 PERCENT ON THE PURCHASE PRICE OF ALL LAND PURCHASED PROVIDED THAT IN NO CASE SHOULD THE COMPENSATION AMOUNT TO MORE THAN $24,000. UNDER THIS CONTRACT $6,453.47 WAS PAID MAY 14, 1923, AND $3,984.13 WAS PAID JUNE 16, 1923, CREDIT FOR ALL OF WHICH HAS BEEN SUSPENDED IN THE ACCOUNTS OF THE DISBURSING OFFICER MAKING THE PAYMENTS.

IT IS CONTENDED BY THE DISBURSING OFFICER THAT THE PAYMENT OF THE COMMISSIONS OR FEES TO THE REAL ESTATE BROKER IN THIS CASE WAS FULLY JUSTIFIED BECAUSE OF THE SAVING TO THE GOVERNMENT IN THE AMOUNT REQUIRED TO BE PAID FOR THE LAND, WHICH SAVING IS ALLEGED TO GREATLY EXCEED THE AMOUNT PAID IN FEES, AND BECAUSE AMONG THE EMPLOYEES OF THE OFFICE OF THE SUPERINTENDENT OF THE STATE, WAR, AND NAVY DEPARTMENTS BUILDINGS, THERE WAS NONE QUALIFIED TO CONSUMMATE THE PURCHASES.

SECTION 4 OF THE ACT OF AUGUST 5, 1882, 22 STAT. 255, PROHIBITS THE EMPLOYMENT OF PERSONAL SERVICES AT THE SEAT OF GOVERNMENT EXCEPT ONLY AT SUCH RATES AND IN SUCH NUMBERS AS MAY BE SPECIFICALLY APPROPRIATED FOR BY CONGRESS. THIS PROHIBITION IS APPLICABLE NOT ONLY TO EMPLOYMENTS UNDER REGULAR APPOINTMENTS BUT ALSO TO CONTRACT EMPLOYMENTS FOR PERSONAL SERVICES. SEE 26 COMP. DEC. 559; ID. 635.

THE ACT OF JUNE 12, 1922, APPROPRIATING FOR THE PURCHASE OF THE LAND IN QUESTION DID NOT EXPRESSLY PROVIDE FOR THE EMPLOYMENT OF PERSONAL SERVICES, NOR WAS THE OBJECT FOR WHICH THE APPROPRIATION PROVIDED, VIZ, PURCHASE OF LANDS, OF SUCH A NATURE AS TO NECESSARILY IMPLY THAT EMPLOYMENT OF PERSONAL SERVICES IN CONNECTION THEREWITH WAS AUTHORIZED. THE APPROPRIATION FOR ,EXPENSES INCIDENT THERETO" CONTEMPLATED ONLY THOSE WHICH MIGHT BE LAWFULLY INCURRED. IT MAY BE THE ADMINISTRATIVE OFFICE EMPLOYED THE REAL ESTATE BROKER TO PROCURE THE PROPERTY AT A FAIR PRICE. WHILE ECONOMY AND SAVING TO THE GOVERNMENT IS DESIRABLE, THAT CONSIDERATION DOES NOT JUSTIFY AN UNLAWFUL PROCEDURE, SUCH AS THE EMPLOYMENT OF PERSONAL SERVICES IN THE ABSENCE OF SPECIFIC AUTHORITY OF LAW THEREFOR. THE MATTER OF NEGOTIATING FOR THE PURCHASE OF LAND FOR THE UNITED STATES IS AN ADMINISTRATIVE DUTY WHICH MAY NOT BE DELEGATED TO ANY ONE OTHER THAN A RESPONSIBLE OFFICER OF THE GOVERNMENT, AND IF SUCH OFFICERS ARE UNABLE TO OBTAIN THE PROPERTY DESIRED AT A FAIR PRICE, CONDEMNATION PROCEEDINGS HAVE BEEN AUTHORIZED BY LAW UNDER WHICH THE PROPERTY MAY BE ACQUIRED. SEE 3 COMP. GEN. 720, 721. FURTHERMORE, THE FACT THAT THE EMPLOYEES OF THE OFFICE OF THE SUPERINTENDENT OF THE STATE, WAR, AND NAVY DEPARTMENTS BUILDINGS WERE NOT QUALIFIED TO PERFORM THE SERVICES DID NOT JUSTIFY OR AUTHORIZE THE USE OF THE APPROPRIATION. COMP. DEC. 800. THE ACT AUTHORIZING THE ACQUISITION OF THESE LANDS SPECIFICALLY IMPOSES UPON THE COMMISSION IN CHARGE OF THE STATE, WAR, AND NAVY DEPARTMENTS BUILDINGS THE DUTIES INCIDENT THERETO AND VESTS IN THE SECRETARY OF STATE, THE SECRETARY OF WAR, AND THE SECRETARY OF THE NAVY THE AUTHORITY TO DETERMINE THE REASONABLE AND FAIR PRICES OF THE SAID LAND.

ACCORDINGLY, IT MUST BE HELD THAT THE EMPLOYMENT OF EDWARD P. SCHWARTZ WAS UNLAWFUL AND THAT THE TOTAL AMOUNT PAID TO HIM IN COMMISSIONS FOR HIS SERVICES IN OBTAINING OPTIONS TO PURCHASE THE LAND IN QUESTION MUST BE DISALLOWED IN THE ACCOUNTS OF THE DISBURSING OFFICER.