A-49795, JULY 10, 1933, 13 COMP. GEN. 9

A-49795: Jul 10, 1933

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AMENDED - COMPENSATION REDUCTION - SCIENTIFIC PERSONAL SERVICE CONTRACTS CONTRACTS FOR FURNISHING BY THE CONTRACTOR OF HIS PERSONAL SCIENTIFIC SERVICE CONSTITUTE THE CONTRACTOR AN EMPLOYEE OR OFFICER OF THE UNITED STATES AND THE COMPENSATION SO FIXED IS SUBJECT TO REDUCTION OF THE PERCENTAGE PRESCRIBED BY THE EXECUTIVE ORDER ISSUED UNDER TITLE II. DECISION AS TO THE APPLICATION OF REFERENCE (A) IS REQUESTED ON THE FOLLOWING STATEMENT OF FACTS. 1798 WERE ENTERED INTO ON JANUARY 13. THESE CONTRACTS ARE BASED ON SERVICES FOR 141 DAYS AT DIFFERENT RATES OF PAY. ORDER N173S 1824 WAS PLACED WITH OMER I. ORDER N173S-1739 WAS PLACED ON NOVEMBER 14. COPY OF CONTRACT N173S-1796 IS ATTACHED AS SPECIMEN.

A-49795, JULY 10, 1933, 13 COMP. GEN. 9

ECONOMY ACT, AMENDED - COMPENSATION REDUCTION - SCIENTIFIC PERSONAL SERVICE CONTRACTS CONTRACTS FOR FURNISHING BY THE CONTRACTOR OF HIS PERSONAL SCIENTIFIC SERVICE CONSTITUTE THE CONTRACTOR AN EMPLOYEE OR OFFICER OF THE UNITED STATES AND THE COMPENSATION SO FIXED IS SUBJECT TO REDUCTION OF THE PERCENTAGE PRESCRIBED BY THE EXECUTIVE ORDER ISSUED UNDER TITLE II, ACT OF MARCH 20, 1933.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JULY 10, 1933:

THERE HAS BEEN RECEIVED THE REFERENCE BY YOUR ENDORSEMENT OF JULY 1, DIRECTOR OF THE NAVAL RESEARCH LABORATORY AS FOLLOWS: REFERENCES: (A) ADMINISTRATION OF "AN ACT TO MAINTAIN THE CREDIT OF

THE UNITED STATES GOVERNMENT, APPROVED MARCH 20,

1933.'

(B) LEGISLATIVE APPROPRIATION ACT FISCAL YEAR 1933,

APPROVED JUNE 30, 1932. ENCLOSURE: 1. (A) COPY OF CONTRACT N173S-1796.

1. DECISION AS TO THE APPLICATION OF REFERENCE (A) IS REQUESTED ON THE FOLLOWING STATEMENT OF FACTS.

(A) CONTRACTS N173S-1796, 1797, AND 1798 WERE ENTERED INTO ON JANUARY 13, 1933 WITH ROBERT D. NORTON, JOHN A. PLUGGE, AND BERTRAM M. HARRISON FOR SERVICES OF A SCIENTIFIC NATURE AS PROVIDED FOR IN THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1933. THESE CONTRACTS ARE BASED ON SERVICES FOR 141 DAYS AT DIFFERENT RATES OF PAY. ORDER N173S 1824 WAS PLACED WITH OMER I. LEWIS FOR SIMILAR SERVICES FOR 3 MONTHS FROM MARCH 7, 1933 TO JUNE 6, 1933, 5 1/2 DAYS PER WEEK AT $6 PER DAY. ORDER N173S-1739 WAS PLACED ON NOVEMBER 14, 1932 WITH DR. H. D. CROCKFORD FOR A PERIOD OF 30 DAYS,"VARIOUS DATES DURING THE REMAINDER OF THE FISCAL YEAR 1933 WHEN MOST CONVENIENT TO CARRY ON THIS WORK.' COPY OF CONTRACT N173S-1796 IS ATTACHED AS SPECIMEN.

(B) IT WILL BE NOTED THAT CONTRACTS N173S-1796, 1797 AND 1798 SPECIFY NO DEFINITE TIME FOR PERFORMANCE OF THE SERVICES, BUT THE LENGTH OF TIME INVOLVED, 141 DAYS, WAS BASED ON 5 1/2 DAY WEEKS, EXTENDING FROM THE DATE OF CONTRACT APPROXIMATELY TO THE END OF THE FISCAL YEAR. ORDER N173S-1824 WAS SPECIFICALLY SO STATED AND ORDER N173S-1739 WAS NOT LIMITED EXCEPT AS TO THE TOTAL NUMBER OF DAYS WORK.

(C) NONE OF THESE CONTRACTS IN ANY PLACE REFER TO ANY DEDUCTION OR IMPOUNDING OF FUNDS. HOWEVER, UNDER REFERENCE (A) THE SUM OF 8 1/3 PERCENT HAS BEEN DEDUCTED AND IMPOUNDED FROM EACH PAYMENT MADE.

2. REFERENCE (A), IN TITLE II, SECTION 1 (A) (5) WOULD APPEAR TO EXEMPT THESE EMPLOYEES FROM THE DEDUCTION PROVIDED FOR UNDER SECTION 2, AS THEIR CONTRACTS WERE IN EFFECT ON THE DATE OF THE ENACTMENT OF REFERENCE (A). ON THE OTHER HAND REFERENCE (A) WOULD APPEAR TO REPEAL THE PROVISIONS OF REFERENCE (B) UNDER WHICH THE DEDUCTION OF 8 1/3 PERCENT HAS HITHERTO BEEN MADE ON THESE CONTRACTS.

3. DECISION IS THEREFORE REQUESTED AS TO WHETHER THE PAYMENT OF THESE CONTRACT EMPLOYEES ON AND AFTER APRIL 1, 1933, SHOULD BE:

(A) THE FULL AMOUNT SPECIFIED IN THE CONTRACT OR ORDER WITHOUT DEDUCTION.

(B) THE AMOUNT SPECIFIED AS ABOVE LESS THE DEDUCTION OF 8 1/3 PERCENT WHICH IS BEING MADE AT THE PRESENT TIME.

(C) THE AMOUNT AS SPECIFIED ABOVE LESS SUCH DEDUCTION AS THE PRESIDENT MAY ESTABLISH IN ACCORDANCE WITH THE TERMS OF REFERENCE (A).

CONTRACTS OF THIS NATURE WERE CONSIDERED IN DECISION OF AUGUST 2, 1932, A -43615, AND IT WAS THEREIN HELD THAT THE PARTIES CAME WITHIN THE TERMS OFFICERS AND EMPLOYEES AS DEFINED IN SECTION 104 OF THE ECONOMY ACT OF JUNE 30, 1932, AND THAT THEIR COMPENSATION WAS ACCORDINGLY SUBJECT TO THE 8 1/3 PERCENT REDUCTION UNDER THAT ACT.

SECTION 1, TITLE II, ACT OF MARCH 20, 1933, 48 STAT. 12, PROVIDES AS FOLLOWS:

(A) THE TERMS "OFFICER" AND "EMPLOYEE" MEAN ANY PERSON RENDERING SERVICES IN OR UNDER ANY BRANCH OR SERVICE OF THE UNITED STATES GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, BUT DO NOT INCLUDE (1) OFFICERS WHOSE COMPENSATION MAY NOT, UNDER THE CONSTITUTION, BE DIMINISHED DURING THEIR CONTINUANCE IN OFFICE; (2) THE VICE PRESIDENT, THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, SENATORS, REPRESENTATIVES IN CONGRESS, DELEGATES, AND RESIDENT COMMISSIONERS; (3) OFFICERS AND EMPLOYEES ON THE ROLLS OF THE SENATE AND HOUSE OF REPRESENTATIVES; (4) ANY PERSON IN RESPECT OF ANY OFFICE, POSITION, OR EMPLOYMENT THE AMOUNT OF COMPENSATION OF WHICH IS EXPRESSLY FIXED BY INTERNATIONAL AGREEMENT; AND (5) ANY PERSON IN RESPECT OF ANY OFFICE, POSITION, OR EMPLOYMENT THE COMPENSATION OF WHICH IS PAID UNDER THE TERMS OF ANY CONTRACT IN EFFECT ON THE DATE OF THE ENACTMENT OF THIS TITLE, IF SUCH COMPENSATION MAY NOT LAWFULLY BE REDUCED.

(B) THE TERM "COMPENSATION" MEANS ANY SALARY, PAY, WAGE, ALLOWANCE(EXCEPT ALLOWANCES FOR TRAVEL) OR OTHER EMOLUMENT PAID FOR SERVICES RENDERED IN ANY CIVILIAN OR NONCIVILIAN OFFICE, POSITION, OR EMPLOYMENT; * * *

THE CONTRACTS IN QUESTION ARE NOTHING MORE OR LESS THAN CONTRACTS OF EMPLOYMENT UNDER WHICH THE CONTRACTOR BECOMES AN OFFICER OR EMPLOYEE OF THE UNITED STATES. ALL CONTRACTS OF EMPLOYMENT, WHETHER IN THE FORM OF AN APPOINTMENT, A WRITTEN CONTRACT, OR OTHERWISE, ARE DEPENDENT UPON APPROPRIATIONS MADE BY THE CONGRESS AND ARE SUBJECT TO SUCH CONDITIONS AND LIMITATIONS AS THE CONGRESS MAY SEE FIT TO IMPOSE.

NOTWITHSTANDING, THEREFORE, THAT THESE CONTRACTS WERE ENTERED INTO PRIOR TO APRIL 1, 1933, THEY ARE NOT OF SUCH A CHARACTER THAT THE CONSIDERATION NAMED THEREIN MAY NOT LAWFULLY BE REDUCED. BEGINNING APRIL 1, 1933, THE COMPENSATION OF THESE EMPLOYEES AS STATED IN THEIR RESPECTIVE CONTRACTS IS SUBJECT TO THE PERCENTAGE REDUCTION WHICH HAS BEEN AND/OR WILL BE PRESCRIBED BY EXECUTIVE ORDER UNDER TITLE II, ACT OF MARCH 20, 1933.