A-54569, APRIL 13, 1934, 13 COMP. GEN. 281

A-54569: Apr 13, 1934

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IS IN CONTRAVENTION OF SECTION 41 OF THE FEDERAL CRIMINAL CODE. ARE OPEN TO CRITICISM IRRESPECTIVE OF THE BONA FIDES WITH WHICH THE EMPLOYEE'S DETERMINATION MAY BE EXERCISED. 1934: YOUR ATTENTION IS INVITED TO A CONTRACT. IT APPEARS FROM THE ABSTRACT OF AGREEMENT FORM 1036 THAT THREE EQUALLY LOW BIDS WERE RECEIVED AND THAT AWARD WAS MADE BY LOT. THURMAN IS IN THE TYPEWRITER BUSINESS OR ONLY IN THIS PARTICULAR INSTANCE. WHICH RESTS UPON THE DETERMINATION OF THE EMPLOYEE ARE OPEN TO CRITICISM IRRESPECTIVE OF THE BONA FIDES WITH WHICH THE EMPLOYEE'S DETERMINATION MAY BE EXERCISED AND CANNOT BE SANCTIONED BY THIS OFFICE. YOU ARE ADVISED THAT NO PAYMENTS ARE AUTHORIZED UNDER THE SAID CONTRACT.

A-54569, APRIL 13, 1934, 13 COMP. GEN. 281

OFFICERS AND EMPLOYEES CONTRACTING WITH THE GOVERNMENT A CONTRACT FOR THE RENTAL OF TYPEWRITERS FOR THE USE OF THE BUREAU OF CENSUS, COMMERCE DEPARTMENT, NEGOTIATED AND SIGNED BY A SUPERVISOR OF CENSUS, BOTH FOR HIMSELF INDIVIDUALLY AND FOR THE UNITED STATES AS CONTRACTING OFFICER, IS IN CONTRAVENTION OF SECTION 41 OF THE FEDERAL CRIMINAL CODE, 35 STAT. 1097. CONTRACTS BETWEEN THE UNITED STATES AND AN EMPLOYEE TO FURNISH A SERVICE THE EXTENT OF, AND THE NECESSITY FOR, WHICH RESTS UPON THE DETERMINATION OF THE CONTRACTING EMPLOYEE, ARE OPEN TO CRITICISM IRRESPECTIVE OF THE BONA FIDES WITH WHICH THE EMPLOYEE'S DETERMINATION MAY BE EXERCISED, AND CANNOT BE SANCTIONED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, APRIL 13, 1934:

YOUR ATTENTION IS INVITED TO A CONTRACT, C CC-2101, DATED JANUARY 2, 1934, WHEREBY H. J. THURMAN, GREENSBORO, N.C., SUPERVISOR OF CENSUS OF SECOND DISTRICT OF NORTH CAROLINA, AGREED TO PAY HIMSELF AS RENTAL FOR THREE TYPEWRITERS FROM JANUARY 2, 1934, AT THE RATE OF $3 PER MONTH PER TYPEWRITER.

IT APPEARS FROM THE ABSTRACT OF AGREEMENT FORM 1036 THAT THREE EQUALLY LOW BIDS WERE RECEIVED AND THAT AWARD WAS MADE BY LOT. HOWEVER, AS PREVIOUSLY NOTED THE SAID H. J. THURMAN, ACTING IN HIS OFFICIAL CAPACITY, CONTRACTED WITH HIMSELF AS AN INDIVIDUAL FOR THE RENTAL OF SAID EQUIPMENT.

SECTION 41 OF THE FEDERAL CRIMINAL CODE, 35 STAT. 1097, PROVIDES:

NO OFFICER OR AGENT OF ANY CORPORATION, JOINT-STOCK COMPANY, OR ASSOCIATION, AND NO MEMBER OR AGENT OF ANY FIRM, OR PERSON DIRECTLY OR INDIRECTLY INTERESTED IN THE PECUNIARY PROFITS OR CONTRACTS OF SUCH CORPORATION, JOINT-STOCK COMPANY, ASSOCIATION, OR FIRM, SHALL BE EMPLOYED OR SHALL ACT AS AN OFFICER OR AGENT OF THE UNITED STATES FOR THE TRANSACTION OF BUSINESS WITH SUCH CORPORATION, JOINT-STOCK COMPANY, ASSOCIATION, OR FIRM. * * *.

IT DOES NOT APPEAR WHETHER MR. THURMAN IS IN THE TYPEWRITER BUSINESS OR ONLY IN THIS PARTICULAR INSTANCE, BUT HOWEVER, THAT MAY BE, THE STATUTE QUOTED DOES NOT PROHIBIT AN EMPLOYEE FROM CONTRACTING WITH THE GOVERNMENT IF HE DOES NOT AT THE SAME TIME ACT AS AN AGENT OF THE GOVERNMENT IN NEGOTIATING OR SIGNING THE CONTRACT. IT MUST BE INTERPRETED AS PROHIBITING EMPLOYEES OF THE UNITED STATES FROM ACTING FOR BOTH THE GOVERNMENT AND THE CONTRACTOR. CONTRACTS BETWEEN THE UNITED STATES AND AN EMPLOYEE TO FURNISH A SERVICE, THE EXTENT OF AND THE NECESSITY FOR, AS IN THIS CASE, WHICH RESTS UPON THE DETERMINATION OF THE EMPLOYEE ARE OPEN TO CRITICISM IRRESPECTIVE OF THE BONA FIDES WITH WHICH THE EMPLOYEE'S DETERMINATION MAY BE EXERCISED AND CANNOT BE SANCTIONED BY THIS OFFICE. ACCORDINGLY, YOU ARE ADVISED THAT NO PAYMENTS ARE AUTHORIZED UNDER THE SAID CONTRACT. IF ANY PAYMENTS HAVE BEEN MADE TO MR. THURMAN UNDER THE SAID CONTRACT, PROPER STEPS SHOULD BE TAKEN TO COLLECT THE AMOUNT SO PAID (5 COMP. GEN. 93).