A-5280, MAY 20, 1940, 19 COMP. GEN. 941

A-5280: May 20, 1940

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

"TESTING" SERVICES AS REFERRED TO GENERALLY IN RELATION TO GOVERNMENT PURCHASES ARE DISTINGUISHABLE FROM "INSPECTION" SERVICES IN THAT THEY INVOLVE MORE THE USE OF SPECIAL EQUIPMENT AND APPLICATION OF ESTABLISHED SCIENTIFIC PRINCIPLES AND PROCEDURES THAN THE PURELY PERSONAL SERVICES INVOLVED IN "INSPECTION.'. ARE APPLICABLE. - IS REQUIRED TO MAKE THEM. WAS GIVEN BY YOUR OFFICE RELATIVE TO THE AUTHORITY OF THE BUREAU OF RECLAMATION TO HAVE MATERIALS PROCURED FOR THE GOVERNMENT INSPECTED BY PRIVATE ESTABLISHMENTS RATHER THAN BY PERSONS IN THE OFFICIAL EMPLOY OF THE UNITED STATES. IN WHICH YOU CONCLUDED THAT SUCH PRACTICE IS NOT IN ACCORDANCE WITH LAW IN THAT SUCH A PROCEDURE INVOLVES AN IMPROPER USE OF APPROPRIATIONS AND AN UNAUTHORIZED EMPLOYMENT OF CIVILIANS FOR WORK OTHERWISE PROVIDED FOR.

A-5280, MAY 20, 1940, 19 COMP. GEN. 941

CONTRACTS - INSPECTION AND TESTS - PRIVATE AGENCIES NEITHER SECTION 12 OF THE RECLAMATION PROJECT ACT OF 1939, 53 STAT. 1197, NOR SECTION 601 OF THE ACT OF JUNE 30, 1932, 47 STAT. 417, AUTHORIZES PROCURING FROM PRIVATE SOURCES THE PERFORMANCE OF REGULAR GOVERNMENTAL FUNCTIONS INVOLVING PURELY PERSONAL SERVICES, SUCH AS THE "INSPECTION" OF GOVERNMENT PURCHASES. "TESTING" SERVICES AS REFERRED TO GENERALLY IN RELATION TO GOVERNMENT PURCHASES ARE DISTINGUISHABLE FROM "INSPECTION" SERVICES IN THAT THEY INVOLVE MORE THE USE OF SPECIAL EQUIPMENT AND APPLICATION OF ESTABLISHED SCIENTIFIC PRINCIPLES AND PROCEDURES THAN THE PURELY PERSONAL SERVICES INVOLVED IN "INSPECTION.' UNLIKE "INSPECTION" SERVICES,"TESTING" SERVICES, AS REFERRED TO GENERALLY IN RELATION TO GOVERNMENT PURCHASES, MAY BE, AND WHERE THE CONDITIONS FOR PROCUREMENT FROM PRIVATE AGENCIES UNDER SECTION 601 OF THE ACT OF JUNE 30, 1932, 47 STAT. 417, ARE APPLICABLE, SHOULD BE, PROCURED FROM PRIVATE AGENCIES WHERE THEY CANNOT BE MADE BY THE PERSONNEL AND EQUIPMENT OF THE PROCURING AGENCY AND NO OTHER GOVERNMENT AGENCY--- SUCH AS THE BUREAU OF STANDARDS--- IS REQUIRED TO MAKE THEM.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, MAY 20, 1940:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 21, 1940, AS FOLLOWS:

UNDER DATE OF FEBRUARY 13, 1925, AN OPINION, NUMBERED A-5280, WAS GIVEN BY YOUR OFFICE RELATIVE TO THE AUTHORITY OF THE BUREAU OF RECLAMATION TO HAVE MATERIALS PROCURED FOR THE GOVERNMENT INSPECTED BY PRIVATE ESTABLISHMENTS RATHER THAN BY PERSONS IN THE OFFICIAL EMPLOY OF THE UNITED STATES, IN WHICH YOU CONCLUDED THAT SUCH PRACTICE IS NOT IN ACCORDANCE WITH LAW IN THAT SUCH A PROCEDURE INVOLVES AN IMPROPER USE OF APPROPRIATIONS AND AN UNAUTHORIZED EMPLOYMENT OF CIVILIANS FOR WORK OTHERWISE PROVIDED FOR. YOUR OPINION CLOSES WITH THE SUGGESTION THAT REMEDIAL LEGISLATION BE SPONSORED IF A CONTINUANCE OF THE PRACTICE OF EMPLOYING SUCH PRIVATE AND UNOFFICIAL SERVICES IS DESIRED.

TITLE VI OF THE ACT OF CONGRESS OF JUNE 30, 1932 (47 STAT. 417), READS IN PART AS FOLLOWS:

"ANY * * * BUREAU * * * IF FUNDS ARE AVAILABLE THEREFOR AND IF IT IS DETERMINED BY THE HEAD OF SUCH * * * BUREAU, * * * TO BE IN THE INTEREST OF THE GOVERNMENT SO TO DO MAY PLACE ORDERS WITH ANY OTHER SUCH DEPARTMENT * * * 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, * * * 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 NCIES.'

IN VIEW OF THE ABOVE PROVISO, AND THE STATEMENT THAT GOVERNMENTAL SERVICES "MAY" BE UTILIZED, THIS STATUTE HAS BEEN INTERPRETED AS AUTHORIZING CONTRACTS WITH PRIVATE ESTABLISHMENTS WHEN THEIR EQUIPMENT OR LABORATORY IS CONVENIENTLY LOCATED, THEIR SERVICES ARE TECHNICALLY SATISFACTORY, AND MAY BE HAD AT COSTS BELOW THOSE OF GOVERNMENT AGENCIES.

IN ADDITION TO THE AUTHORITY ABOVE QUOTED, YOUR ATTENTION IS ALSO DIRECTED TO SECTION 12 OF THE ACT OF AUGUST 4, 1939 (53 STAT. 1187), WHICH MAY HAVE A BEARING ON THE PROBLEM. THIS SECTION PROVIDES:

"WHEN APPROPRIATIONS HAVE BEEN MADE FOR THE COMMENCEMENT OR CONTINUATION OF CONSTRUCTION OR OPERATION AND MAINTENANCE OF ANY PROJECT, THE SECRETARY MAY, IN CONNECTION WITH SUCH CONSTRUCTION OR OPERATION AND MAINTENANCE, ENTER INTO CONTRACTS FOR MISCELLANEOUS SERVICES, FOR MATERIALS AND SUPPLIES, AS WELL AS FOR CONSTRUCTION, WHICH MAY COVER SUCH PERIODS OF TIME AS THE SECRETARY MAY CONSIDER NECESSARY BUT IN WHICH THE LIABILITY OF THE UNITED STATES SHALL BE CONTINGENT UPON APPROPRIATIONS BEING MADE THEREFOR.'

YOUR OPINION OF FEBRUARY 13, 1925, WAS APPARENTLY BASED ON AN ABSENCE OF LEGISLATION ENABLING PRIVATE AGENCIES TO DO THE WORK, AND IT IS BELIEVED THE TWO STATUTES IN PART QUOTED ABOVE NOW SUPPLY THE AUTHORITY THEN RULED AS LACKING.

IF SUCH CONCLUSIONS ARE CORRECT, IT IS PROPOSED TO USE PRIVATE FACILITIES FOR TESTING WHENEVER THEY WILL SERVE OUR PURPOSES MORE EFFECTIVELY THAN OTHER GOVERNMENTAL AGENCIES, AS, FOR EXAMPLE, WHEN THEY ARE LESS COSTLY FOR SATISFACTORY SERVICES, AND ARE MORE CONVENIENTLY LOCATED FOR SUCH WORK.

WILL YOU PLEASE GIVE YOUR OPINION OF THE EFFECT OF THE QUOTED LEGISLATION ON YOUR EARLIER DECISION.

IN THE DECISION OF FEBRUARY 13, 1925, A-5280, IT WAS STATED THAT THE PRACTICE OF HAVING INSPECTIONS OF GOVERNMENT PURCHASES MADE BY PARTIES OTHER THAN OFFICIAL EMPLOYEES OF THE GOVERNMENT WAS NOT IN ACCORDANCE WITH LAW IN THAT SUCH A PROCEDURE INVOLVED THE IMPROPER USE OF APPROPRIATIONS, AN UNAUTHORIZED EMPLOYMENT OF CIVILIANS FOR WORK OTHERWISE PROVIDED FOR, AND RAISED QUESTIONS RELATIVE TO THE STATUS OF THE INSPECTORS AND THEIR FINDINGS. ACCORDINGLY, THE NECESSITY FOR LEGISLATIVE AUTHORITY WAS SUGGESTED IF A CONTINUANCE OF THE PRACTICE OF EMPLOYING PRIVATE AND UNOFFICIAL INSPECTION SERVICES WAS DESIRED.

THE TERM "INSPECTION," IN THE SENSE THAT IT IS USED GENERALLY IN CONNECTION WITH GOVERNMENT PURCHASES, WOULD SEEM TO BE CONFINED SIMPLY TO THE "ACT OR PROCESS OF INSPECTING," TO A "STRICT OR PRYING EXAMINATION," OR TO "A CLOSE OR CAREFUL SCRUTINY," FOR THE PURPOSE OF DETERMINING, GENERALLY FROM OUTWARD APPEARANCES OR MECHANICAL OPERATION, WHETHER THE SUPPLIES OR EQUIPMENT PURCHASED PROPERLY WERE PREPARED OR ASSEMBLED AND IN ACCORDANCE WITH SPECIFICATIONS, FREE FROM DEFECTS, MECHANICAL ERRORS, ETC. IN THAT SENSE IT IS A PERSONAL SERVICE AND AS SUCH A GOVERNMENTAL FUNCTION, INVOLVING PERSONAL JUDGMENT, AND PROPERLY IS FOR PERFORMANCE BY GOVERNMENT EMPLOYEES UNDER GOVERNMENT SUPERVISION. SEE IN THIS CONNECTION THE DECISION PUBLISHED AT 6 COMP. GEN. 140, WHEREIN IT IS STATED:

* * * PERSONAL SERVICES NECESSARY IN CONNECTION WITH GOVERNMENTAL ACTIVITIES ARE FOR PERFORMANCE BY REGULAR EMPLOYEES OF THE GOVERNMENT WHO ARE RESPONSIBLE TO THE GOVERNMENT, AND SUCH SERVICES SHOULD NOT BE PERFORMED BY CONTRACTORS WHO CAN NOT BE HELD PERSONALLY RESPONSIBLE FOR FAILURE OR MISFEASANCE IN THE PERFORMANCE OF SUCH DUTIES. * * * AND AS TO INSPECTION SERVICE IN PARTICULAR:

* * * THE INSPECTION OF PURCHASES BY THE UNITED STATES IS FOR THE PROTECTION OF THE UNITED STATES AND NOT FOR THE PROTECTION OF VENDORS AND CAN BE ACCOMPLISHED PROPERLY ONLY BY PERSONS RESPONSIBLE TO THE GOVERNMENT AND ACTING UNDER GOVERNMENT SUPERVISION. * * *

WHILE SECTION 601, TITLE VI, OF THE ACT OF JUNE 30, 1932, 47 STAT. 417, QUOTED IN PART IN YOUR LETTER, AUTHORIZES THE PROCUREMENT OF CERTAIN MATERIALS, SUPPLIES, EQUIPMENT, WORK, OR SERVICES FROM PRIVATE AGENCIES WHEN "SUCH WORK OR SERVICES CAN BE AS CONVENIENTLY OR MORE CHEAPLY PERFORMED BY PRIVATE AGENCIES," SUCH PROVISION NEVER HAS BEEN CONSTRUED, AND PROPERLY COULD NOT BE CONSTRUED, TO AUTHORIZE CONTRACTING WITH PRIVATE AGENCIES FOR THE PERFORMANCE OF REGULAR GOVERNMENTAL FUNCTIONS INVOLVING PURELY PERSONAL SERVICES, SUCH AS THE "INSPECTION" OF GOVERNMENT PURCHASES. IN OTHER WORDS, THE PROVISION MUST BE CONSTRUED AS APPLYING ONLY TO CASES IN WHICH THE SERVICES INVOLVED ARE OTHERWISE LAWFULLY PROCURABLE FROM PRIVATE AGENCIES. LIKEWISE, SECTION 12 OF THE ACT OF AUGUST 4, 1939, 53 STAT. 1187, QUOTED IN YOUR LETTER MUST BE CONSTRUED AS AUTHORIZING THE PROCUREMENT OF MISCELLANEOUS SERVICES, MATERIALS, AND SUPPLIES FROM PRIVATE AGENCIES ONLY WHEN THEY ARE OTHERWISE AUTHORIZED BY LAW TO BE OBTAINED FROM PRIVATE AGENCIES.

HOWEVER, THERE IS A MATERIAL DISTINCTION BETWEEN "INSPECTION" IN THE SENSE IN WHICH IT HAS BEEN DISCUSSED HEREINBEFORE, AND "TESTING" AS REFERRED TO GENERALLY IN RELATION TO GOVERNMENT PURCHASES. "TEST" OR "TESTING" IN THAT SENSE MAY BE SAID TO BE THE DETERMINATION BY SCIENTIFIC MEANS OF THE PHYSICAL OR CHEMICAL PROPERTIES OR ELEMENTS OF A SAMPLE OF MATERIALS OR SUPPLIES, REQUIRING NOT ONLY THE SERVICES OF PERSONS POSSESSING CERTAIN TECHNICAL KNOWLEDGE BUT ALSO SPECIAL APPLIANCES SUCH AS LABORATORY EQUIPMENT, ETC., WHERE THE SERVICES ARE CAPABLE OF PERFORMANCE IN ACCORDANCE WITH SPECIFICATIONS AND INVOLVE NOT SO MUCH THE ELEMENT OF PERSONAL JUDGMENT AS THE APPLICATION OF ESTABLISHED SCIENTIFIC PRINCIPLES AND PROCEDURES. IN SUCH CASE THE RESULTS TO BE ACCOMPLISHED ARE NOT DEPENDENT UPON PERSONAL JUDGMENT, WOULD NOT BE AFFECTED BY GOVERNMENT SUPERVISION, AND THE SERVICES, GENERALLY, ARE NOT NECESSARILY FOR PERFORMANCE BY GOVERNMENT PERSONNEL, UNLESS SPECIFICALLY SO PROVIDED BY LAW.

IN THAT VIEW, WHEN A PROCURING AGENCY OF THE GOVERNMENT HAS NEED FOR "TESTS" OF SUPPLIES OR EQUIPMENT, AS DISTINGUISHED FROM "INSPECTIONS," WHICH CANNOT BE MADE BY ITS OWN PERSONNEL AND EQUIPMENT OR BY ANOTHER AGENCY OF THE GOVERNMENT WHICH THE CONGRESS HAS SPECIFICALLY PROVIDED SHALL MAKE SUCH TESTS, IT WOULD APPEAR THAT SECTION 601, TITLE VI, OF THE ACT OF JUNE 30, 1932, SUPRA, NOT ONLY AUTHORIZES BUT REQUIRES THAT SUCH "TESTS" BE MADE BY PRIVATE AGENCIES, AFTER ADVERTISING FOR COMPETITIVE BIDS, WHEN SUCH "TESTS" CAN BE MADE MORE CONVENIENTLY OR ECONOMICALLY BY SUCH PRIVATE AGENCIES THAN BY SOME GOVERNMENT AGENCY EQUIPPED TO MAKE THEN AND AUTHORIZED TO DO SO, BY THE SAID ACT, ON A REIMBURSEMENT BASIS. HOWEVER, WITH RESPECT TO THE TESTING OF GOVERNMENT PURCHASES OF SUPPLIES, ETC., THE CONGRESS HAS FOR SEVERAL YEARS SPECIFICALLY PROVIDED FOR SUCH TESTS, GENERALLY, BY THE BUREAU OF STANDARDS. SEE, FOR INSTANCE, THE DEPARTMENT OF COMMERCE APPROPRIATION ACT FOR THE FISCAL YEAR 1940, 53 STAT. 885, 912, WHEREIN A SPECIFIC APPROPRIATION WAS MADE TO THE BUREAU OF STANDARDS FOR "THE TESTING OF EQUIPMENT, MATERIALS, AND SUPPLIES IN CONNECTION WITH GOVERNMENT PURCHASES.' BY REASON THEREOF, THERE WOULD APPEAR TO BE NO AUTHORITY TO HAVE PRIVATE AGENCIES MAKE TESTS OF SUCH SUPPLIES, ETC., IF THE BUREAU OF STANDARDS IS EQUIPPED AND IN A POSITION TO MAKE THEM.