A-58115, JUNE 20, 1935, 14 COMP. GEN. 909

A-58115: Jun 20, 1935

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IS IDENTIFIED WITH AND ATTACHES TO THE INDIVIDUAL AND MEANS THAT THE PERSONAL ELEMENT PREDOMINATES AND NECESSITATES A SELECTION OF THE PERSON AND THAT THE CONTRACTING BE DIRECTLY WITH AND BINDING UPON THAT PERSON. IT IS NOT AN AUTHORITY TO CONTRACT FOR AN INDIVIDUAL'S SERVICES THROUGH ANOTHER AGENCY. IF THE SERVICES OF PARTICULAR ARCHITECTS ARE ADMINISTRATIVELY DETERMINED TO BE NECESSARY TO THE SUCCESS OF A CONTEMPLATED PROJECT. 1935: REFERENCE IS HAD TO YOUR LETTER OF MAY 24. YOU WILL REMEMBER THAT YOU APPROVED UNDER DATE OF MARCH 27. THE SERVICES REQUIRED WILL BE THOSE CALLED FOR BY OUR USUAL FORM OF ARCHITECT'S CONTRACT WHICH WAS APPROVED BY YOU UNDER DATE OF MARCH 15. THE CONTRACT WILL BE IN THAT FORM.

A-58115, JUNE 20, 1935, 14 COMP. GEN. 909

PERSONAL SERVICES - ARCHITECTS - ADVERTISING THE EXCEPTION OF PERSONAL SERVICES FROM THE REQUIREMENTS OF ADVERTISING UNDER SECTION 3709, REVISED STATUTES, IS IDENTIFIED WITH AND ATTACHES TO THE INDIVIDUAL AND MEANS THAT THE PERSONAL ELEMENT PREDOMINATES AND NECESSITATES A SELECTION OF THE PERSON AND THAT THE CONTRACTING BE DIRECTLY WITH AND BINDING UPON THAT PERSON. IT IS NOT AN AUTHORITY TO CONTRACT FOR AN INDIVIDUAL'S SERVICES THROUGH ANOTHER AGENCY. IF THE SERVICES OF PARTICULAR ARCHITECTS ARE ADMINISTRATIVELY DETERMINED TO BE NECESSARY TO THE SUCCESS OF A CONTEMPLATED PROJECT, THE SELECTION SHOULD BE MADE BY RESPONSIBLE OFFICIALS OF THE GOVERNMENT SERVICE AND THE SERVICES OF SUCH ARCHITECTS SECURED EITHER BY EMPLOYMENT OR BY CONTRACTING DIRECTLY WITH THE INDIVIDUALS AND NOT THROUGH AN INTERMEDIATE NON- GOVERNMENT AGENCY.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS, JUNE 20, 1935:

REFERENCE IS HAD TO YOUR LETTER OF MAY 24, 1935, AS FOLLOWS:

IN CONNECTION WITH THE LOW COST HOUSING AND SLUM CLEARANCE PROJECT IN BROOKLYN, NEW YORK, DESIGNATED AS THE WILLIAMSBURG PROJECT NO. H 1301, WE PROPOSE NOW TO ENTER INTO A CONTRACT, FOR ARCHITECTURAL SERVICES, AS DESCRIBED BELOW, WITH THE NEW YORK CITY MUNICIPAL HOUSING AUTHORITY. YOU WILL REMEMBER THAT YOU APPROVED UNDER DATE OF MARCH 27, 1935, SUBJECT TO CERTAIN CONDITIONS, A PROPOSED AGREEMENT BETWEEN THE GOVERNMENT AND THE AUTHORITY FOR PROCURING OPTIONS ON BEHALF OF THE GOVERNMENT ON THE SAME PROJECT.

THE SERVICES REQUIRED WILL BE THOSE CALLED FOR BY OUR USUAL FORM OF ARCHITECT'S CONTRACT WHICH WAS APPROVED BY YOU UNDER DATE OF MARCH 15, 1935, AND THE CONTRACT WILL BE IN THAT FORM, EXCEPT, OF COURSE, FOR CHANGES NECESSARY TO ADAPT IT TO THE PARTICULAR FACTS. THE CONTRACT WILL SPECIFY THAT THE ACTUAL WORK WILL BE PERFORMED BY A CERTAIN GROUP OF WELL- KNOWN ARCHITECTS OF THE CITY OF NEW YORK JOINED TOGETHER AS A PARTNERSHIP FOR THE PURPOSE, AND WILL PROVIDE, AS USUAL, THAT ANY OTHER ARCHITECTS, LANDSCAPE ARCHITECTS, OR ENGINEERS EMPLOYED TO AID IN THE WORK, AS WELL AS THEIR COMPENSATION, MUST BE FIRST APPROVED ON BEHALF OF THE GOVERNMENT, AND THAT ALL SERVICES RENDERED WILL BE SUBJECT TO GOVERNMENT APPROVAL.

THE FEE TO BE PAID BY THE GOVERNMENT WILL BE CALCULATED, AS USUAL, UPON THE COST OF CONSTRUCTION AT A RATE TO BE DETERMINED BY THE SCHEDULE USED ON ALL SIMILAR PROJECTS, BUT NOT TO BE HIGHER THAN A STATED MAXIMUM. THE AMOUNT WILL BE FURTHER SPECIFICALLY LIMITED TO THE AMOUNT TO BE PAID BY THE AUTHORITY TO THE ARCHITECTS, SO AS TO PREVENT THE AUTHORITY FROM MAKING ANY FINANCIAL PROFIT. CONSEQUENTLY, THE ONLY VARIATION FROM OUR USUAL EMPLOYMENT OF ARCHITECTS ON SUCH PROJECTS WILL LIE IN THE EXISTENCE OF THE AUTHORITY AS A DIRECTING INTERMEDIATE PARTY.

THE REASONS FOR THE DESIRABILITY OF CONTRACTING WITH THE AUTHORITY CORRESPOND SOMEWHAT WITH THE REASONS FOR CONTRACTING WITH IT FOR PROCURING OPTIONS, AND ARE AS FOLLOWS:

1. THE AUTHORITY IS VITALLY INTERESTED IN HOUSING PROJECTS IN NEW YORK CITY AND ITS SOLE REASON FOR EXISTENCE IS THE FURTHERING OF SUCH PROJECTS. IT WAS CREATED FOR THE PURPOSE OF STUDYING, INITIATING, AND MANAGING SUCH PROJECTS, AND IT HAS A LARGE STAFF OF ARCHITECTS, ENGINEERS, AND DRAFTSMEN WHO FOR A PERIOD OF MANY MONTHS HAVE DONE EXTENSIVE WORK IN STUDYING THE HOUSING NEEDS OF NEW YORK CITY AND THE TYPES, SIZES, LAYOUT, AND OTHER FEATURES OF THE BUILDINGS BELIEVED BEST ADAPTED TO SUCH PURPOSES, PARTICULAR STUDIES HAVING BEEN MADE IN REGARD TO THE NEIGHBORHOOD OF THIS SITE. THE RESULTS OF ALL SUCH STUDIES, AS WELL AS THE PRESENT SERVICES OF THE STAFF, WILL BE MADE AVAILABLE TO THE PROJECT WITH NO ADDITIONAL COST WHATSOEVER. I BELIEVE IT IN THE GOVERNMENT'S INTERESTS TO TAKE THE FULLEST ADVANTAGE OF THE WORK OF THAT STAFF, AND THAT THAT RESULT CAN BE BEST OBTAINED BY MAKING THE AUTHORITY THE ACTUAL CONTRACTING PARTY, SUBJECT TO OUR CUSTOMARY PROVISIONS FOR PROTECTION OF THE GOVERNMENT.

2. THE AUTHORITY'S OBLIGATIONS TO THE TAXPAYERS OF THE CITY REQUIRE IT TO TAKE A MAJOR PART IN PROJECTS OF THIS CHARACTER, AND IT HAS THEREFORE URGED THAT THE CONTRACT BE MADE WITH IT. IN VIEW OF THE AUTHORITY'S PURPOSES AND HISTORY, AND PARTICULARLY ITS EXTENSIVE WORK IN CONNECTION WITH THIS AND OTHER PROPOSED PROJECTS, I BELIEVE THAT IT SHOULD BE GIVEN EVERY OPPORTUNITY TO WORK IN COOPERATION WITH THE GOVERNMENT IN THE DEVELOPMENT OF SUCH PROJECTS IN THE CITY OF NEW YORK, SUBJECT TO SUCH SAFEGUARDS AND PROVISIONS FOR CONTROL AS THE GOVERNMENT DEEMS NECESSARY TO PROTECT ITS INTERESTS, AND, FURTHER, THAT THE PROPOSED METHOD OF PROCURING ARCHITECTURAL SERVICES WILL NOT ONLY AMPLY PROTECT BUT WILL FURTHER THE INTERESTS OF THE GOVERNMENT.

YOUR ADVICE IS REQUESTED AS TO WHETHER OR NOT THE GENERAL ACCOUNTING OFFICE WILL HAVE ANY OBJECTION TO MAKING DISBURSEMENTS UNDER THE PROPOSED CONTRACT IF ENTERED INTO BY THIS ADMINISTRATION.

SECTION 3709, REVISED STATUTES, PROVIDES:

ALL PURCHASES AND CONTRACTS FOR SUPPLIES OR SERVICES, IN ANY OF THE DEPARTMENTS OF THE GOVERNMENT, EXCEPT FOR PERSONAL SERVICES, SHALL BE MADE BY ADVERTISING A SUFFICIENT TIME PREVIOUSLY FOR PROPOSALS RESPECTING THE SAME, WHEN THE PUBLIC EXIGENCIES DO NOT REQUIRE THE IMMEDIATE DELIVERY OF THE ARTICLES, OR PERFORMANCE OF THE SERVICE. WHEN IMMEDIATE DELIVERY OR PERFORMANCE IS REQUIRED BY THE PUBLIC EXIGENCY, THE ARTICLES OR SERVICE REQUIRED MAY BE PROCURED BY OPEN PURCHASE OR CONTRACT, AT THE PLACES AND IN THE MANNER IN WHICH SUCH ARTICLES ARE USUALLY BOUGHT AND SOLD, OR SUCH SERVICES ENGAGED, BETWEEN INDIVIDUALS.

THE EXCEPTION OF PERSONAL SERVICES FROM THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, IS IDENTIFIED WITH AND ATTACHES TO THE INDIVIDUAL AND MEANS THAT THE PERSONAL ELEMENT PREDOMINATES AND NECESSITATES THAT THERE BE SELECTION OF THE PERSON AND THAT THE CONTRACTING BE DIRECTLY WITH AND BINDING UPON THAT PERSON. IT IS PERSONAL TO THE ONE CONTRACTING AND NOT AN AUTHORITY TO CONTRACT FOR THAT ONE'S SERVICES THROUGH ANOTHER. 9 COMP. GEN. 169. IT WOULD NOT BE PERMISSIBLE, THEREFORE, TO CONTRACT WITH THE NEW YORK CITY MUNICIPAL HOUSING AUTHORITY TO SELECT AND FURNISH TO YOUR ADMINISTRATION SUCH ARCHITECTS AS IT MAY DEEM PROPER--- AND TO CONTRACT WITH THE AUTHORITY TO IN TURN CONTRACT IN YOUR BEHALF FOR ONLY SUCH ARCHITECTS AS YOU MAY SELECT OR APPROVE, WOULD SEEM EVEN IF AUTHORIZED AN UNNECESSARILY INVOLVED PROCEDURE.

IF THE SERVICES OF PARTICULAR ARCHITECTS ARE ADMINISTRATIVELY DETERMINED TO BE NECESSARY TO THE SUCCESS OF THE CONTEMPLATED PROJECT, THE SELECTION OF THE PARTICULAR ARCHITECTS SHOULD BE MADE BY RESPONSIBLE OFFICIALS OF YOUR ADMINISTRATION AND THE SERVICES OF SUCH ARCHITECTS TO THE EXTENT NECESSARY SHOULD BE SECURED EITHER BY EMPLOYMENT OR BY CONTRACTING DIRECTLY WITH THE INDIVIDUALS AND NOT THROUGH AN INTERMEDIATE AGENCY. SHOULD BE UNDERSTOOD THAT IN GOVERNMENT PROJECTS, SUCH AS INVOLVED IN THE PRESENT MATTER, THERE IS FOR CONSIDERATION FIRST WHETHER THE SERVICES INCIDENT TO SUCH PROJECTS, INCLUDING ARCHITECTURAL SERVICES, MAY NOT BE PERFORMED BY OFFICERS AND EMPLOYEES OF THE GOVERNMENT. THE EMPLOYMENT OF OUTSIDE PROFESSIONAL SERVICE UNDER CONTRACT SHOULD BE RESORTED TO ONLY WHEN DUE TO THE HIGHLY TECHNICAL FEATURES OF THE PROJECT OR FOR OTHER REASONS THE USE OF REGULAR EMPLOYEES OF THE GOVERNMENT WOULD NOT BE ADEQUATE TO ACCOMPLISH THE PURPOSE AUTHORIZED BY LAW.