A-53791, MARCH 2, 1934, 13 COMP. GEN. 234

A-53791: Mar 2, 1934

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THE LOAN OF PERSONNEL BETWEEN DEPARTMENTS OR OFFICES WILL BE REGARDED AS HAVING BEEN MADE AS AN ACCOMMODATION FOR WHICH NO REIMBURSEMENT OR TRANSFER OF APPROPRIATION WILL BE MADE FOR SALARIES. THE REQUEST FOR TRANSFER OF APPROPRIATION WAS DENIED PURSUANT TO THE PRIOR RULINGS OF THE ACCOUNTING OFFICERS OF THE UNITED STATES. THAT THE APPROPRIATION OF THE LOANING AGENCY MAY NOT BE REIMBURSED FOR THE COMPENSATION OF AN EMPLOYEE WHOSE SERVICES ARE LOANED TO ANOTHER AGENCY. IN REQUESTING REVIEW THE ADMINISTRATIVE OFFICE HAS PRESENTED THE FOLLOWING STATEMENT: YOU ARE RESPECTFULLY REFERRED TO DECISION OF NOVEMBER 11. IS THE CONTENTION OF THE INTERSTATE COMMERCE COMMISSION THAT IT HAS AND IS PERFORMING A SERVICE FOR THE UNITED STATES SHIPPING BOARD JUST AS TRULY AS THAT PERFORMED BY THE NAVY DEPARTMENT FOR THE ARCHITECT OF THE CAPITOL IN THE CASE CITED.

A-53791, MARCH 2, 1934, 13 COMP. GEN. 234

DEPARTMENTS AND ESTABLISHMENTS - SERVICES BETWEEN - LOAN OF EMPLOYEES PURSUANT TO THE PROVISIONS OF SECTION 601 OF THE ACT OF JUNE 30, 1932, 47 STAT. 417, TWO DEPARTMENTS OR OFFICES OF THE GOVERNMENT OPERATING UNDER SEPARATE APPROPRIATIONS MAY ENTER INTO AN AGREEMENT FOR 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 APPROPRIATIONS MAY BE MADE NOT TO EXCEED THE REGULAR SALARY AND AUTHORIZED EXPENSES, IF ANY, OF THE PERSONNEL LOANED COVERING THE PERIOD INVOLVED. IN THE ABSENCE OF A WRITTEN ORDER OR AGREEMENT IN ADVANCE PROVIDING FOR INTERDEPARTMENTAL PERSONAL SERVICES, OR UNLESS THE WRITTEN ORDER OR AGREEMENT SPECIFICALLY PROVIDES FOR REIMBURSEMENT, THE LOAN OF PERSONNEL BETWEEN DEPARTMENTS OR OFFICES WILL BE REGARDED AS HAVING BEEN MADE AS AN ACCOMMODATION FOR WHICH NO REIMBURSEMENT OR TRANSFER OF APPROPRIATION WILL BE MADE FOR SALARIES.

DECISION BY ACTING COMPTROLLER GENERAL ELLIOTT, MARCH 2, 1934:

THE INTERSTATE COMMERCE COMMISSION HAS REQUESTED REVIEW OF THE ACTION OF THIS OFFICE OF JANUARY 25, 1934, DENYING ITS REQUEST FOR TRANSFER FROM UNITED STATES SHIPPING BOARD FUNDS TO THE APPROPRIATION FOR THE INTERSTATE COMMERCE COMMISSION TO REIMBURSE THE COMMISSION FOR SALARY IN THE AMOUNT OF $200 PAID TO M. J. SCHWARTZ, AN EMPLOYEE OF THE INTERSTATE COMMERCE COMMISSION, FOR THE PERIOD JUNE 1 TO 30, 1933, WHILE LOANED TO THE UNITED STATES SHIPPING BOARD. THE REQUEST FOR TRANSFER OF APPROPRIATION WAS DENIED PURSUANT TO THE PRIOR RULINGS OF THE ACCOUNTING OFFICERS OF THE UNITED STATES, THAT THE APPROPRIATION OF THE LOANING AGENCY MAY NOT BE REIMBURSED FOR THE COMPENSATION OF AN EMPLOYEE WHOSE SERVICES ARE LOANED TO ANOTHER AGENCY, THERE BEING NO ADDITIONAL BURDEN UPON THE FUNDS OF THE LOANING ESTABLISHMENT. CITING 6 COMP. GEN. 217 AND DECISION OF SEPTEMBER 6, 1933, A-50746.

IN REQUESTING REVIEW THE ADMINISTRATIVE OFFICE HAS PRESENTED THE FOLLOWING STATEMENT:

YOU ARE RESPECTFULLY REFERRED TO DECISION OF NOVEMBER 11, 1932, 12COMP. GEN. 442, WHICH COVERS REIMBURSEMENT FOR SERVICES BETWEEN DEPARTMENTS. IS THE CONTENTION OF THE INTERSTATE COMMERCE COMMISSION THAT IT HAS AND IS PERFORMING A SERVICE FOR THE UNITED STATES SHIPPING BOARD JUST AS TRULY AS THAT PERFORMED BY THE NAVY DEPARTMENT FOR THE ARCHITECT OF THE CAPITOL IN THE CASE CITED.

SUBSEQUENT TO THE PASSAGE OF THE INTERCOASTAL SHIPPING ACT OF 1933, WHICH REQUIRED COMMON CARRIERS BY WATER IN INTERCOASTAL COMMERCE TO FILE ACTUAL RATES WITH THE UNITED STATES SHIPPING BOARD, AND NOT TO CHANGE OR AFTER SHORTER NOTICE UNDER SPECIAL PERMISSION FROM THE BOARD, IT BECAME SUCH RATES EXCEPT AFTER THIRTY DAYS' NOTICE BY THE FILING OF A NEW TARIFF, NECESSARY FOR THE SHIPPING BOARD TO HAVE EXPERT ASSISTANCE IN DRAWING UP TARIFF RULES AND REGULATIONS, AND IN ORGANIZING THE MACHINERY FOR HANDLING SUCH TARIFFS, SPECIAL PERMISSIONS, AND RELATED MATTERS. AS THE SHIPPING BOARD HAD NO EXPERIENCED EMPLOYEES ALONG THESE LINES, AND THE INTERSTATE COMMERCE COMMISSION HAD EXPERTS IN ITS OWN SECTION OF TARIFFS, WHO WERE COMPETENT TO SET UP THE MACHINERY FOR HANDLING THESE MATTERS, IT REQUESTED THE INTERSTATE COMMERCE COMMISSION TO ASSIST IT IN THE ESTABLISHMENT OF THIS DIVISION. OBVIOUSLY, THE WORK OF SETTING UP THIS NEW DIVISION COULD BE DONE ONLY IN THE OFFICES OF THE SHIPPING BOARD, AND AS A CONSEQUENCE THE COMMISSION AUTHORIZED MR. SCHWARTZ DURING JUNE AND MESSRS. LORIN C. NELSON, EDMOND W. CHAPDELAINE, AND PAUL P. REINEY AT VARIOUS OTHER TIMES TO PERFORM THIS SERVICE FOR THE SHIPPING BOARD AT ITS OWN OFFICES.

MR. NELSON, WHO IS AN ASSISTANT DIRECTOR IN THE COMMISSION'S SECTION OF TARIFFS, WAS PERSONALLY ENGAGED ON A SURVEY OF THE BOARD'S DIVISION OF REGULATIONS AND TRAFFIC, AND PERSONNEL REORGANIZATION. MR. CHAPDELAINE, WHO IS AN ASSISTANT IN THE OFFICE OF THE CHIEF OF THE SECTION OF TARIFFS, WAS PERSONALLY ENGAGED IN DRAWING UP TARIFF RULES AND REGULATIONS, AND THE INSTALLATION OF NEW TARIFF FILING SYSTEM. MR. REINEY, AND MR. SCHWARTZ WERE ESPECIALLY QUALIFIED ALONG THE LINES REQUIRED, AND WERE ENGAGED IN SETTING UP A TARIFF SECTION AND SUPERVISING ITS PERSONNEL.

IT WAS UNDERSTOOD BY BOTH THE SHIPPING BOARD, AND THE INTERSTATE COMMERCE COMMISSION AT THE TIME THE COMMISSION UNDERTOOK TO HAVE ITS EMPLOYEES TO DO THE WORK FOR THIS BOARD, THAT IT WOULD BE REIMBURSED FOR ITS SERVICES UNDER SECTION 601 OF THE ECONOMY ACT, WHICH PROVIDES FOR PAYMENT OF SERVICES AS WELL AS SUPPLIES WHEN RENDERED BY ONE DEPARTMENT FOR THE OTHER.

AS THE COMMISSION HAS RENDERED A SOMEWHAT SIMILAR SERVICE FOR OTHER GOVERNMENT ESTABLISHMENTS BESIDES THE SHIPPING BOARD, FOR WHICH IT ANTICIPATED REIMBURSEMENT, IT IS HOPED THAT THIS CASE CAN BE RECONSIDERED AND THE SHIPPING BOARD AUTHORIZED TO PAY THE COMMISSION FOR THE SERVICE AS STATED IN THE VOUCHER ALREADY SUBMITTED.

SECTION 601, TITLE VI, OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 417, PROVIDES AS FOLLOWS:

SECTION 7 OF THE ACT ENTITLED "AN ACT MAKING APPROPRIATIONS FOR FORTIFICATIONS AND OTHER WORKS OF DEFENSE, FOR THE ARMAMENT THEREOF, AND FOR THE PROCUREMENT OF HEAVY ORDNANCE FOR TRIAL AND SERVICE, FOR THE FISCAL YEAR ENDING JUNE 30, 1921, AND FOR OTHER PURPOSES," APPROVED MAY 21, 1920 (U.S.C., TITLE 31, SEC. 686), IS AMENDED TO READ AS FOLLOWS:

"SECTION 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.'

IN DECISION OF NOVEMBER 11, 1932, 12 COMP. GEN. 442, 444, AFTER QUOTING THE ABOVE STATUTE, IT WAS HELD AS FOLLOWS:

THESE PROVISIONS WOULD APPEAR TO CONTEMPLATE THAT THE APPROPRIATIONS FOR THE DEPARTMENT OR OFFICE FOR WHICH THE WORK IS TO BE PERFORMED SHOULD BEAR THE TOTAL DIRECT COST THEREOF, INCLUDING PERSONAL SERVICES. NOTE PARTICULARLY THE SPECIFIC REFERENCE TO "SERVICES PERFORMED" AND THE AUTHORIZED ADJUSTMENT AS MAY BE AGREED TO BY THE DEPARTMENTS, ESTABLISHMENTS, BUREAUS, OR OFFICES CONCERNED ON THE BASIS OF THE ACTUAL COST OF THE SERVICES PERFORMED.

IN VIEW OF THESE STATUTORY PROVISIONS AND THE GENERAL PRACTICE OF APPROPRIATING LUMP SUMS FOR PERSONAL SERVICES UNDER THE VARIOUS BRANCHES OF THE GOVERNMENT, IT REASONABLY MAY BE CONCLUDED THAT THE RULE ABOVE STATED, IN FORCE PRIOR TO JULY 1, 1932, OF EXCLUDING SALARIES OF REGULAR EMPLOYEES WHICH WOULD HAVE BEEN PAID IN ANY EVENT, IS NOT TO BE REGARDED AS PRECLUDING, IN MAKING ADJUSTMENTS ON ACCOUNT OF WORK PERFORMED BY ONE DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE FOR ANOTHER UNDER THE PROVISIONS OF THE SAID SECTION 601, THE CONSIDERATION, AS A PART OF THE ACTUAL COST, OF THE SALARY OR COMPENSATION OF OFFICERS OR EMPLOYEES ENGAGED DIRECTLY ON THE WORK, INCLUDING THE AMOUNT TO BE DEDUCTED AND IMPOUNDED UNDER TITLE I OF THE ECONOMY ACT. SEE DECISION OF SEPTEMBER 13, 1932, A-43585, 12 COMP. GEN. 345.

IN DECISION OF NOVEMBER 24, 1933, 13 COMP. GEN. 150, 153, THE ABOVE QUOTED DECISION WAS FURTHER AMPLIFIED AS FOLLOWS:

THIS DECISION, RENDERED WITH PARTICULAR REFERENCE TO CIVILIAN PERSONNEL, DID NOT REQUIRE THAT THE SALARIES OF THE REGULAR PERSONNEL SHOULD BE INCLUDED AS AN ITEM OF COST OF SERVICES PERFORMED BY ONE DEPARTMENT OR OFFICE FOR ANOTHER. UNDER THE TERMS OF SECTION 601 (A) OF THE ECONOMY ACT, SUPRA, AS APPLIED BY SAID DECISION, IT IS FOR DETERMINATION AND AGREEMENT BY THE DEPARTMENTS OR OFFICES CONCERNED WHETHER THE ACTUAL COST OF INTERDEPARTMENTAL WORK SHALL INCLUDE ONLY ADDITIONAL EXPENSES DIRECTLY INCIDENT TO THE SERVICES PERFORMED UNDER THE RULE IN FORCE PRIOR TO THE DECISION OF NOVEMBER 11, 1932, SUPRA, OR WHETHER THERE SHOULD BE INCLUDED, ALSO, AS ITEMS OF COST THE SALARIES OF REGULAR PERSONNEL PERFORMING THE SERVICE AND OTHER REGULAR EXPENSES WHICH WOULD BE CHARGEABLE IN ANY EVENT TO THE APPROPRIATIONS OF THE PERFORMING DEPARTMENT. * * *

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.

IN THE ABSENCE OF A WRITTEN ORDER OR AGREEMENT IN ADVANCE, OR UNLESS THE WRITTEN ORDER OR AGREEMENT SPECIFICALLY PROVIDES FOR REIMBURSEMENT, THE LOAN OF PERSONNEL WILL BE REGARDED AS HAVING BEEN MADE AS AN ACCOMMODATION FOR WHICH NO REIMBURSEMENT OR TRANSFER OF APPROPRIATION WILL BE MADE FOR SALARIES UNDER THE PRINCIPLE STATED IN THIS DECISION OF SEPTEMBER 6, 1933, A-50746, AND THE DECISIONS THEREIN CITED, VIZ, 6 COMP. GEN. 217; 7 ID. 709, 710; 10 ID. 131, 193, 275.

IN THE INSTANT CASE THE TRANSFER OF APPROPRIATION REQUESTED BY THE INTERSTATE COMMERCE COMMISSION WILL NOT BE MADE BY THIS OFFICE UNLESS AND UNTIL THERE BE FILED A STATEMENT BY THE RESPONSIBLE OFFICER OF THE DEPARTMENT OF COMMERCE (TO WHICH THE SHIPPING BOARD HAS BEEN TRANSFERRED) AGREEING TO SUCH TRANSFER.