A-51555, JULY 9, 1934, 14 COMP. GEN. 25

A-51555: Jul 9, 1934

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1934: I HAVE YOUR LETTER OF JUNE 12. AS FOLLOWS: REFERENCE IS MADE TO YOUR LETTER NO. CONCERNING ARRANGEMENTS WITH THE WAR AND NAVY DEPARTMENTS TO HAVE EACH OF THEM ASSIGN AN OFFICER TO PERFORM CERTAIN DUTIES AND TRAVEL AS COURIERS FOR THE DEPARTMENT OF STATE. NO REFERENCE WAS MADE IN THIS COMMUNICATION TO THE PROVISIONS OF TITLE VI. IF FUNDS ARE AVAILABLE THEREFOR AND IF IT IS DETERMINED BY THE HEAD OF SUCH EXECUTIVE DEPARTMENT. TO THE APPROPRIATIONS OR FUNDS AGAINST WHICH CHARGES HAVE BEEN MADE PURSUANT TO ANY SUCH ORDER. OR EQUIPMENT ARE FURNISHED FROM STOCKS ON HAND. OR OFFICE DETERMINES THAT SUCH REPLACEMENT IS NOT NECESSARY. DECISIONS HAVE BEEN RENDERED BY YOUR OFFICE ON NOVEMBER 11.

A-51555, JULY 9, 1934, 14 COMP. GEN. 25

OFFICERS - ARMY AND NAVY - ASSIGNMENT AS COURIERS UNDER THE STATE DEPARTMENT - REIMBURSEMENT FOR SERVICES BETWEEN DEPARTMENTS SECTIONS 1223 AND 1440, REVISED STATUTES, EXCLUDE ARMY AND NAVY OFFICERS FROM EMPLOYMENT IN THE FOREIGN SERVICE OF THE UNITED STATES. SECTION 601 OF THE ECONOMY ACT, 47 STAT. 417, PROVIDING GENERALLY FOR AGREEMENTS FOR THE PERFORMANCE OF PURELY PERSONAL SERVICES BY THE PERSONNEL OF ONE DEPARTMENT OR OFFICE FOR THE PERFORMANCE OF THE WORK OF THE OTHER, DOES NOT REPEAL, BY IMPLICATION, THE SPECIAL PROVISIONS, APPLICABLE IN A LIMITED FIELD, OF SECTIONS 1222, 1223, 1229, AND 1440 OF THE REVISED STATUTES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, JULY 9, 1934:

I HAVE YOUR LETTER OF JUNE 12, 1934, AS FOLLOWS:

REFERENCE IS MADE TO YOUR LETTER NO. A-51555, DATED OCTOBER 26, 1933, CONCERNING ARRANGEMENTS WITH THE WAR AND NAVY DEPARTMENTS TO HAVE EACH OF THEM ASSIGN AN OFFICER TO PERFORM CERTAIN DUTIES AND TRAVEL AS COURIERS FOR THE DEPARTMENT OF STATE. YOU ADVISED THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORIZATION THE STATE DEPARTMENT APPROPRIATION "CONTINGENT EXPENSES, FOREIGN SERVICE" MAY NOT PROPERLY BE CHARGED WITH TRAVEL EXPENSES OF OFFICERS OF THE REGULAR ARMY AND REGULAR NAVY FROM THEIR POSTS OF DUTY TO PARIS AND IN RETURNING TO THIS COUNTRY UPON TERMINATION OF THEIR SERVICES AS COURIERS.

NO REFERENCE WAS MADE IN THIS COMMUNICATION TO THE PROVISIONS OF TITLE VI, ENTITLED ,INTERDEPARTMENTAL WORK" OF THE ACT OF CONGRESS APPROVED JUNE 30, 1932, 47 STAT. 417, SECTION 601 OF WHICH PROVIDES FOR THE AMENDMENT OF SECTION 7 OF THE ACT APPROVED MAY 21, 1920, TO READ AS FOLLOWS:

"SEC. 7. (A) ANY EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT OF THE GOVERNMENT, OR ANY BUREAU OR OFFICE THEREOF, IF FUNDS ARE AVAILABLE THEREFOR AND IF IT IS DETERMINED BY THE HEAD OF SUCH EXECUTIVE DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE TO BE IN THE INTEREST OF THE GOVERNMENT SO TO DO, MAY PLACE ORDERS WITH ANY OTHER SUCH DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE FOR MATERIALS, SUPPLIES, EQUIPMENT, WORK, OR SERVICES, OF ANY KIND THAT SUCH REQUISITIONED FEDERAL AGENCY MAY BE IN A POSITION TO SUPPLY OR EQUIPPED TO RENDER, AND SHALL PAY PROMPTLY BY CHECK TO SUCH FEDERAL AGENCY AS MAY BE REQUISITIONED, UPON ITS WRITTEN REQUEST, EITHER IN ADVANCE OR UPON THE FURNISHING OR PERFORMANCE THEREOF, ALL OR PART OF THE ESTIMATED OR ACTUAL COST THEREOF AS DETERMINED BY SUCH DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE AS MAY BE REQUISITIONED, BUT PROPER ADJUSTMENTS ON THE BASIS OF THE ACTUAL COST OF THE MATERIALS, SUPPLIES, OR EQUIPMENT FURNISHED, OR WORK OR SERVICES PERFORMED, PAID FOR IN ADVANCE, SHALL BE MADE AS MAY BE AGREED UPON BY THE DEPARTMENTS, ESTABLISHMENTS, BUREAUS, OR OFFICES CONCERNED: PROVIDED, HOWEVER, THAT IF SUCH WORK OR SERVICES CAN BE AS CONVENIENTLY OR MORE CHEAPLY PERFORMED BY PRIVATE AGENCIES, SUCH WORK SHALL BE LET BY COMPETITIVE BIDS TO SUCH PRIVATE AGENCIES. BILLS RENDERED, OR REQUESTS FOR ADVANCE PAYMENTS MADE, PURSUANT TO ANY SUCH ORDER, SHALL NOT BE SUBJECT TO AUDIT OR CERTIFICATION IN ADVANCE OF PAYMENT.

"/B) AMOUNTS PAID AS PROVIDED IN SUBSECTION (A) SHALL BE CREDITED (1) IN THE CASE OF ADVANCE PAYMENTS TO SPECIAL WORKING FUNDS, OR (2) IN THE CASE OF PAYMENTS OTHER THAN ADVANCE PAYMENTS, TO THE APPROPRIATIONS OR FUNDS AGAINST WHICH CHARGES HAVE BEEN MADE PURSUANT TO ANY SUCH ORDER, EXCEPT AS HEREINAFTER PROVIDED. THE SECRETARY OF THE TREASURY SHALL ESTABLISH SUCH SPECIAL WORKING FUNDS AS MAY BE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS SUBSECTION. SUCH AMOUNTS PAID SHALL BE AVAILABLE FOR EXPENDITURE IN FURNISHING THE MATERIALS, SUPPLIES, OR EQUIPMENT, OR IN PERFORMING THE WORK OR SERVICES, OR FOR THE OBJECTS SPECIFIED IN SUCH APPROPRIATIONS OR FUNDS. WHERE MATERIALS, SUPPLIES, OR EQUIPMENT ARE FURNISHED FROM STOCKS ON HAND, THE AMOUNTS RECEIVED IN PAYMENT THEREFOR SHALL BE CREDITED TO APPROPRIATIONS OR FUNDS AS MAY BE AUTHORIZED BY OTHER LAW, OR, IF NOT SO AUTHORIZED, SO AS TO BE AVAILABLE TO REPLACE THE MATERIALS, SUPPLIES, OR EQUIPMENT, EXCEPT THAT WHERE THE HEAD OF ANY SUCH DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE DETERMINES THAT SUCH REPLACEMENT IS NOT NECESSARY, THE AMOUNTS PAID SHALL BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.

"/C) ORDERS PLACED AS PROVIDED IN SUBSECTION (A) SHALL BE CONSIDERED AS OBLIGATIONS UPON APPROPRIATIONS IN THE SAME MANNER AS ORDERS OR CONTRACTS PLACED WITH PRIVATE CONTRACTORS. ADVANCE PAYMENTS CREDITED TO A SPECIAL WORKING FUND SHALL REMAIN AVAILABLE UNTIL EXPENDED.'

DECISIONS HAVE BEEN RENDERED BY YOUR OFFICE ON NOVEMBER 11, 1932, 12 COMP. GEN. 442; ON NOVEMBER 24, 1933, 13 COMP. GEN. 150; AND ON MARCH 2, 1934 (A-53791), INTERPRETING THE PROVISIONS QUOTED ABOVE. YOUR DECISION OF MARCH 2, 1934, CONTAINED THE FOLLOWING STATEMENT:

"IT SEEMS REASONABLY CLEAR THAT THE CONGRESS INTENDED BY THE ENACTMENT OF SECTION 601 OF THE ECONOMY ACT THAT TWO DEPARTMENTS OR OFFICES OF THE GOVERNMENT OPERATING UNDER SEPARATE APPROPRIATIONS MAY ENTER INTO AN AGREEMENT FOR THE PERFORMANCE OF PURELY PERSONAL SERVICES BY THE PERSONNEL OF ONE DEPARTMENT OR OFFICE FOR THE PERFORMANCE OF THE WORK OF THE OTHER, FOR WHICH REIMBURSEMENT OR TRANSFER OF APPROPRIATION MAY BE MADE NOT TO EXCEED THE REGULAR SALARIES AND AUTHORIZED EXPENSES, IF ANY, OF THE PERSONNEL LOANED COVERING THE PERIOD INVOLVED. BUT IN SUCH CASES THERE SHOULD BE A WRITTEN ORDER OR AGREEMENT IN ADVANCE, SIGNED BY THE RESPONSIBLE ADMINISTRATIVE OFFICER OF EACH OF THE DEPARTMENTS OR OFFICES CONCERNED, AND SAID AGREEMENT SHOULD BE ATTACHED TO THE REQUEST FOR TRANSFER OF APPROPRIATIONS OR VOUCHER FOR REIMBURSEMENT FOR FILING IN THIS OFFICE.'

I INCLOSE A COPY OF AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY DEPARTMENT, DATED APRIL 30, 1934, IN WHICH HE STATES HIS CONCLUSIONS AS FOLLOWS:

"AFTER A CAREFUL EXAMINATION OF THE PROVISIONS OF SECTION 601, TITLE VI, OF THE ECONOMY ACT, IN THE LIGHT OF THE DECISIONS OF THE COMPTROLLER GENERAL ABOVE CITED, THIS OFFICE IS OF THE OPINION THAT AN AGREEMENT MAY BE LEGALLY MADE AND ENFORCED BETWEEN THE NAVY DEPARTMENT AND ANOTHER EXECUTIVE DEPARTMENT WHEREIN THE NAVY DEPARTMENT WILL BE REIMBURSED BY THE DEPARTMENT RECEIVING THE SERVICES FOR ALLOWANCES AND EXPENSES OF CERTAIN NAVAL OR MARINE OFFICERS OR MEN WHO MAY BE DETAILED TO PERFORM DUTY OR RENDER SERVICE UNDER THE DIRECTION OR SUPERVISION OF THE OTHER DEPARTMENT AND FOR THE BENEFIT OF THE OTHER DEPARTMENT. IT IS THE FURTHER OPINION OF THIS OFFICE, HOWEVER, THAT IN ORDER TO INSURE THAT THE NAVY DEPARTMENT WILL BE REIMBURSED AS AGREED THERE SHOULD BE A WRITTEN ORDER OR AGREEMENT SIGNED BY A RESPONSIBLE ADMINISTRATIVE OFFICER OF THE NAVY DEPARTMENT AND OF THE OTHER EXECUTIVE DEPARTMENT CONCERNED, IN ADVANCE OF THE RENDERING OF SUCH SERVICES, AND THAT SAID AGREEMENT SHOULD BE ATTACHED TO THE REQUEST FOR TRANSFER OF APPROPRIATIONS OR VOUCHER FOR REIMBURSEMENT FROM THE APPROPRIATION OF THE EXECUTIVE DEPARTMENT FOR WHOM THE SERVICES ARE RENDERED TO THE CREDIT OF THE NAVY DEPARTMENT.'

AS THE PROVISIONS OF THE SO-CALLED ECONOMY ACT ABOVE QUOTED WERE ENACTED SUBSEQUENT TO SECTIONS 1222, 1223, 1224, AND 1440 OF THE REVISED STATUTES, AS AMENDED, AND AS THE PHRASEOLOGY USED IN THE PROVISIONS ABOVE QUOTED ARE NOT RESTRICTED IN THEIR APPLICATION, IT IS BELIEVED THAT THE CONGRESS MAY REASONABLY BE CONSIDERED TO HAVE INTENDED THAT THE RESTRICTIONS CONTAINED IN THE ABOVE-MENTIONED PROVISIONS OF THE REVISED STATUTES SHOULD NOT BE INVOKED TO PREVENT THE MAKING OF CONTRACTS BY THE WAR DEPARTMENT OR THE NAVY DEPARTMENT FOR THE PERFORMANCE OF WORK FOR THIS DEPARTMENT BY PERSONNEL OF THE ARMY OR THE NAVY. WHEN THE PROVISIONS OF TITLE VI OF THE ECONOMY ACT WERE UNDER CONSIDERATION IN THE HOUSE OF REPRESENTATIVES THE FOLLOWING STATEMENTS WERE MADE:

"MR. FRENCH. IT WOULD PERMIT ONE DEPARTMENT THAT IS DOING A PARTICULAR LINE OF WORK, AND IS QUALIFIED TO DO THAT WORK, TO DO THE WORK UPON THE REQUEST OF ANOTHER DEPARTMENT AND UPON AN AGREEMENT BETWEEN THE TWO DEPARTMENTS TO DO THAT SPECIFIC WORK. * * *" BEING UTILIZED TO PROMOTE SAVINGS AND ECONOMIES, IT OUGHT TO BE ADOPTED; AND SUCH SAVINGS AND ECONOMIES OUGHT TO BE ENCOURAGED AS FAR AS POSSIBLE BY ACTION OF THE APPROPRIATIONS COMMITTEE IN DENYING ANY DUPLICATION OF SERVICE.'

"MR. BRIGGS. THIS IS AN ECONOMY PROGRAM; AND WHEN IT COMES DOWN TO FUNDAMENTALS I THINK THAT EVERYBODY WANTS TO HAVE CARRIED INTO EFFECT THROUGHOUT THIS GOVERNMENT THE UTMOST ECONOMIES OF EVERY KIND WHICH CAN BE EFFECTED PROPERLY AND STILL LET THE GOVERNMENT BE CARRIED ON EFFICIENTLY.

SECTION 601 OF THE ACT OF JUNE 30, 1932, CONTAINS A GENERAL AUTHORIZATION TO MAKE THESE CONTRACTS AND HAS NO PROVISION EXPRESSLY INDICATING THAT SECTIONS 1222, 1223, 1224, AND 1440 OF THE REVISED STATUTES ARE APPLICABLE TO THE PERFORMANCE OF SPECIFIED WORK UNDER SUCH CONTRACTS. AS THE PERSONNEL INVOLVED DO NOT BECOME OFFICERS OR EMPLOYEES OF THIS DEPARTMENT, THERE WOULD SEEM TO BE NO GROUNDS FOR DEPRIVING THE DEPARTMENT OF STATE OF THE RIGHT TO CONTRACT WITH THE WAR AND NAVY DEPARTMENTS FOR THE SERVICES OF EXPERIENCED AND EFFICIENT PERSONNEL WHICH IS WELL QUALIFIED TO PERFORM CERTAIN TYPES OF WORK, INCLUDING INSPECTION OF MATERIALS AND SUPPLIES, REQUIRED BY THIS DEPARTMENT.

I SHALL ACCORDINGLY APPRECIATE IT VERY MUCH IF YOU WILL BE SO GOOD AS TO RECONSIDER THIS MATTER AND ADVISE ME WHETHER YOU FIND IT POSSIBLE TO MODIFY THE DECISION CONTAINED IN YOUR LETTER OF OCTOBER 26, 1933, ON THIS SUBJECT.

IT WAS STATED IN THE DECISION TO YOU OF OCTOBER 26, 1933, THAT THE PURPOSE OF SECTIONS 1223 AND 1440 OF THE REVISED STATUTES WAS TO EXCLUDE ARMY AND NAVY OFFICERS FROM EMPLOYMENT IN THE DIPLOMATIC OR CONSULAR SERVICE, OR, AS IT IS NOW DESIGNATED, THE "FOREIGN SERVICE," OF THE UNITED STATES. YOU WILL OBSERVE THE STATUTE IS ADDRESSED TO AN OFFICER "WHO ACCEPTS OR HOLDS ANY (OR AN) APPOINTMENT IN THE FOREIGN SERVICE.' YOU URGE THAT AS THE PROVISIONS OF THE SO-CALLED "ECONOMY ," QUOTED IN YOUR LETTER, WERE ENACTED SUBSEQUENT TO SECTIONS 1222, 1223, 1224, AND 1440 OF THE REVISED STATUTES, AND, THERE BEING NO RESTRICTION IN THE LANGUAGE USED, IT MAY BE REASONABLY CONSIDERED THAT THE CONGRESS INTENDED THAT THE RESTRICTIONS CONTAINED IN THE CITED SECTIONS OF THE REVISED STATUTES SHOULD NOT BE INVOKED TO PREVENT THE ASSIGNMENT OF ARMY AND NAVY OFFICERS AS COURIERS UNDER THE STATE DEPARTMENT. ASIDE FROM ANY QUESTION OF WHETHER EMPLOYMENT OF COURIERS"--- ASSUMING THEY ARE ONLY A HIGH-GRADE MESSENGER--- ARE WITHIN THE AUTHORITY OF SECTION 7 QUOTED FOR ONE GOVERNMENT AGENCY TO PLACE WITH ANOTHER "ORDERS * * * FOR MATERIALS, SUPPLIES, EQUIPMENT, WORK, OR SERVICES OF ANY KIND"--- THE EMPLOYMENT OF SUCH "COURIERS" SUGGESTING MAINLY AN INCREASE OF PERSONNEL BY DETAIL RATHER THAN EMPLOYMENT TO DO A SPECIFIC JOB, AND ENDING WITH THE COMPLETION OF THE JOB--- THE CONSTRUCTION ADMINISTRATIVELY URGED WOULD IGNORE A FUNDAMENTAL RULE OF STATUTORY CONSTRUCTION IN THAT IT WOULD RECOGNIZE THROUGH A GENERAL ACT A REPEAL BY IMPLICATION OF SPECIAL ACTS APPLYING SPECIFICALLY TO OFFICERS OF A CERTAIN CLASS.

GIVING APPLICATION TO THE ESTABLISHED RULES THAT IMPLIED REPEALS ARE REGARDED WITH DISFAVOR AND THAT SPECIAL PROVISIONS APPLICABLE IN A LIMITED FIELD ARE NOT REPEALED BY GENERAL ACTS UNLESS THE PURPOSE SO TO DO IS CLEARLY EXPRESSED, THE IMPELLING CONCLUSION IS THAT TWO DEPARTMENTS OR OFFICES OF THE GOVERNMENT OPERATING UNDER SEPARATE APPROPRIATIONS MAY ENTER INTO AGREEMENTS FOR THE PERFORMANCE OF PURELY PERSONAL SERVICES BY THE PERSONNEL OF ONE DEPARTMENT OR OFFICE FOR THE PERFORMANCE OF THE WORK OF THE OTHER, WHERE NOT OTHERWISE PROHIBITED BY LAW. ACCORDINGLY, YOU ARE ADVISED THAT THE PROVISIONS OF SECTION 601 OF THE ECONOMY ACT ARE NOT AUTHORITY ON WHICH THE CONCLUSION REACHED IN THE DECISION OF OCTOBER 26, 1933, MAY BE CHANGED OR MODIFIED.