A-6691, JULY 30, 1926, 6 COMP. GEN. 84

A-6691: Jul 30, 1926

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OF PROFESSIONAL OR TECHNICAL SERVICES FOR WHICH A DEPARTMENT OF THE GOVERNMENT IS ESTABLISHED TO FURNISH AND WHICH IS SPECIFICALLY PROVIDED FOR BY DEFINITE APPROPRIATION. IS SUBSTANTIALLY THE EMPLOYMENT OF SUCH ADDITIONAL SERVICES IN THE EXECUTIVE DEPARTMENT OF THE GOVERNMENT AS WOULD TEND TO EVADE THE STATUTORY LIMITATIONS UPON THE EMPLOYMENT OF PERSONAL SERVICES. CREDIT FOR THE PAYMENTS MADE WILL BE ALLOWED IN THIS INSTANCE AS UPON A QUANTUM MERUIT BASIS. QUESTIONS BEARING UPON THIS EXPENDITURE WERE DISCUSSED AND OBJECTION EXPRESSED TO THE PROCUREMENT OF THE SERVICE ENGAGED AND THE METHOD EMPLOYED. IT WAS THEREIN STATED THAT A REVIEW OF THE DISALLOWANCE WOULD BE DEFERRED UNTIL THE DATA THEREIN OUTLINED HAD BEEN SUBMITTED.

A-6691, JULY 30, 1926, 6 COMP. GEN. 84

CONTRACTS, SUPPLEMENTAL - EMPLOYMENT OF PERSONAL SERVICES THE ENGAGEMENT BY CONTRACT AND PAYMENT OUT OF A GENERAL OR LUMP-SUM APPROPRIATION, OF PROFESSIONAL OR TECHNICAL SERVICES FOR WHICH A DEPARTMENT OF THE GOVERNMENT IS ESTABLISHED TO FURNISH AND WHICH IS SPECIFICALLY PROVIDED FOR BY DEFINITE APPROPRIATION, IS SUBSTANTIALLY THE EMPLOYMENT OF SUCH ADDITIONAL SERVICES IN THE EXECUTIVE DEPARTMENT OF THE GOVERNMENT AS WOULD TEND TO EVADE THE STATUTORY LIMITATIONS UPON THE EMPLOYMENT OF PERSONAL SERVICES. THE MERE FACT THAT THE OLD DATA FOR DESIGNS OF BRIDGES FURNISHED FOR A STIPULATED COMPENSATION IN ACCORDANCE WITH A CONTRACTUAL AGREEMENT ENTERED INTO AFTER COMPLIANCE WITH SECTION 3709, REVISED STATUTES, COULD BE USED BY THE CONTRACTORS, CONSTITUTES NO REASON FOR THE ENTERING INTO OF A SUPPLEMENTAL AGREEMENT WITHOUT COMPLIANCE WITH THE PROVISIONS OF SAID SECTION FOR NEW DESIGNS TO MEET CHANGED REQUIREMENTS. HOWEVER, IN VIEW OF THE REPORTED NECESSITY FOR SUCH SERVICES, THE RENDITION AND PAYMENT THEREFOR, ALL WITH THE APPARENT TACIT APPROVAL OF THE CONGRESS, CREDIT FOR THE PAYMENTS MADE WILL BE ALLOWED IN THIS INSTANCE AS UPON A QUANTUM MERUIT BASIS.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 30, 1926:

EARL I. BROWN, COLONEL, CORPS OF ENGINEERS, REQUESTED OCTOBER 28, 1924, REVIEW OF SETTLEMENT NO. M-8997-W, DATED AUGUST 14, 1924, DISALLOWING CREDIT FOR $20,000 PAID BY HIM TO HARRINGTON, HOWARD AND ASH, UNDER CONTRACT DATED JULY 2, 1923, FOR THE PREPARATION OF DESIGNS, PLANS AND SPECIFICATIONS FOR FOUR BRIDGES OVER THE CHESAPEAKE AND DELAWARE CANAL. IN CONSIDERING THE MATTERS INVOLVED, REVIEW OF MARCH 18, 1925, A-6691, QUESTIONS BEARING UPON THIS EXPENDITURE WERE DISCUSSED AND OBJECTION EXPRESSED TO THE PROCUREMENT OF THE SERVICE ENGAGED AND THE METHOD EMPLOYED, AND IT WAS THEREIN STATED THAT A REVIEW OF THE DISALLOWANCE WOULD BE DEFERRED UNTIL THE DATA THEREIN OUTLINED HAD BEEN SUBMITTED.

THERE HAS NOW BEEN SUBMITTED A STATEMENT, SUPPLEMENTED BY THE CHIEF OF ENGINEERS, EXPLAINING THE PROCURING OF THE SERVICES IN QUESTION.

THE ITEM OF $20,000, INVOLVED IN THE DISALLOWANCE, WAS PAID UNDER CONTRACT OF JULY 2, 1923, WHICH PURPORTS TO BE SUPPLEMENTAL TO A CONTRACT OF APRIL 21, 1922, PROVIDING FOR COMPENSATION OF $40,000, FOR LIKE SERVICES FOR THE PROJECTS THEN CONTEMPLATED, AND THE OBJECTION TAKEN TO THE SERVICE FOR WHICH THE PAYMENT OF $20,000 WAS MADE RELATES TO (1) THE PROPRIETY OF ENGAGING SUCH SERVICES UNDER EXISTING STATUTES, WHICH ALSO COVERS THE CONTRACT OF APRIL 21, 1922, AND (2) THE MANNER OF ENGAGING THE ADDITIONAL SERVICE UNDER THE SO-CALLED SUPPLEMENTAL CONTRACT.

AS TO THE FIRST QUESTION, THE EXPLANATORY STATEMENTS SUBMITTED ARE IN ACCORD THAT THE ENGINEER OFFICE HAD NO QUALIFIED TALENT AVAILABLE FOR DESIGNING THE BRIDGES ACROSS THE CHESAPEAKE AND DELAWARE CANAL, AND ACCORDINGLY IT WAS NECESSARY TO EMPLOY EXPERTS OUTSIDE THE GOVERNMENT SERVICE, THE CHIEF OF ENGINEERS STATING AS TO THIS FACT, THAT:

17. COLONEL BROWN'S LETTER OF APRIL 4, 1924, QUITE FULLY EXPLAINS WHY IT WAS NECESSARY IN THE CASE TO EMPLOY COMPETENT CONSULTING ENGINEERS. THIS IS NOT CONSIDERED AS EMPLOYING PRIVATE INDIVIDUALS "TO PERFORM THE DUTIES OF THE GOVERNMENT OFFICERS AND EMPLOYEES OFFICIALLY ENGAGED ON RIVER AND HARBOR WORK.' THE NUMBER OF ENGINEER OFFICERS AUTHORIZED BY CONGRESS TO PERFORM ALL CLASSES OF WORK, INCLUDING COMMAND OF ENGINEER REGIMENTS AND OF OTHER STRICTLY MILITARY DUTY, AS WELL AS RIVER AND HARBOR WORK, IS ABOUT 500. THE NUMBER OF MEN ENGAGED ON RIVER AND HARBOR WORK UNDER THE SUPERVISION OF THE CHIEF OF ENGINEERS VARIES FROM ABOUT 20,000 TO 30,000. NOTHING HAS EVER OCCURRED YET TO INDICATE THAT CONGRESS WOULD CONSIDER FAVORABLY A RECOMMENDATION TO SO INCREASE THE CORPS OF ENGINEERS AS TO MAKE THE EMPLOYMENT OF CIVIL ASSISTANTS UNNECESSARY FOR THE PROPER HANDLING OF THE LARGE FORCE. IF, THEREFORE, EMPLOYEES ARE TO BE HIRED FROM CIVIL LIFE, IT APPEARS BETTER IN SUCH A CASE AS THIS TO EMPLOY MEN WHO MAKE A SPECIALTY OF THE DESIGN OF BRIDGES RATHER THAN DELEGATE THIS WORK TO THE REGULAR EMPLOYEES WHO ARE NOT QUALIFIED BY EDUCATION OR EXPERIENCE TO MAKE SUCH A DESIGN. A FORCE VERY PROBABLY COULD BE ORGANIZED FROM AMONG THE REGULAR EMPLOYEES OF THE DEPARTMENT THAT, IN THE COURSE OF TIME AND AT A HIGH COST TO THE GOVERNMENT FOR THE DESIGN WORK, COULD TURN OUT PLANS FOR A LARGE DRAWBRIDGE, BUT AS THIS DEPARTMENT VERY RARELY HAS OCCASION TO BUILD SUCH BRIDGES, NO OFFICER OF THE CORPS HAS HAD ACTUAL EXPERIENCE IN THE DESIGN OF SUCH BRIDGES, NO OFFICER OF THE CORPS HAS HAD ACTUAL EXPERIENCE IN THE DESIGN OF SUCH BRIDGES NOR, SO FAR AS IS KNOWN, HAS ANY EMPLOYEE OF THE DEPARTMENT EVER DESIGNED SUCH A BRIDGE. THE EXPERTS EMPLOYED, ON THE CONTRARY, ARE ENGAGED IN THIS WORK ALL OF THE TIME. IT IS A GENERAL RULE THAT INEXPERIENCED DESIGNERS WORK INTO THEIR DESIGNS FEATURES WHICH GREATLY ADD TO THE COST OF CONSTRUCTION, AND IT IS NOT BELIEVED THAT A LARGE BASCULE BRIDGE, DESIGNED BY AN INEXPERIENCED FORCE, WOULD BE ANY EXCEPTION TO THE GENERAL RULE.

18. SO FAR AS EMPLOYING EXPERTS IS CONCERNED, IT MAY BE OBSERVED THAT THE ATTORNEY'S GENERAL'S DEPARTMENT AND OTHER DEPARTMENTS OF THE GOVERNMENT--- WHEN THEY HAVE SPECIALLY COMPLICATED QUESTIONS--- EMPLOY ATTORNEYS WHO MAKE A PRACTICE OF THAT PARTICULAR CLASS OF WORK; ALSO SURGEONS IN PRIVATE PRACTICE--- WHEN A SPECIALLY DIFFICULT OPERATION IS TO BE PERFORMED--- GENERALLY REFER THEIR PATIENT TO A SPECIALIST.

19. ANOTHER ENGINEER OFFICER IS, TO THE KNOWLEDGE OF THIS OFFICE, ENGAGED AT THE PRESENT TIME IN ENDEAVORING TO SECURE THE SERVICES OF AN EXPERT CONSULTANT FOR A BRIDGE WHICH HE WILL SOON HAVE TO BUILD. THIS OFFICER HAS BEEN IN CORRESPONDENCE WITH MR. R. S. BUCK, OF NEW YORK, WHO IS A BRIDGE ENGINEER OF NATIONAL REPUTATION. HE HAS BEEN ENGAGED IN BRIDGE DESIGN AND CONSTRUCTION FOR MANY YEARS. HE WAS THE CHIEF ENGINEER IN CHARGE OF THE DESIGN AND CONSTRUCTION OF THE MANHATTAN AND QUEENSBORO BRIDGES ACROSS THE EAST RIVER AT NEW YORK. THESE ARE TWO OF THE LARGEST BRIDGES IN THE WORLD. IN A LETTER TO THE ENGINEER OFFICER REFERRED TO, MR. BUCK STATES: "I INCLOSE HEREWITH COPY OF STATEMENT OF MY PROFESSIONAL EXPERIENCE MADE OUT SOME TIME AGO, WHICH WILL PROBABLY SERVE YOUR PURPOSE. YOU WILL SEE FROM THIS THAT I CAN NOT QUALIFY AS A SPECIALIST EITHER IN REINFORCED CONCRETE OR BASCULE BRIDGE DESIGN AND CONSTRUCTION. " THIS INDICATES THAT EVEN A BRIDGE ENGINEER WHO HAS BEEN IN CHARGE OF THE DESIGN AND CONSTRUCTION OF SUCH MONUMENTAL BRIDGES AS THOSE ACROSS THE EAST RIVER IN NEW YORK HESITATES TO UNDERTAKE THE DESIGN OF A BASCULE BRIDGE WHICH IS A TYPE DIFFERENT FROM THOSE UPON WHICH HE HAS BEEN ENGAGED.

REGARDING THE REFERENCE TO EMPLOYMENT OF EXPERTS BY THE ATTORNEY GENERAL AND DEPARTMENTS OF THE GOVERNMENT, IT IS SUFFICIENT TO DIRECT ATTENTION TO THE FACT THAT IN ALL SUCH CASES, INCLUDING AS WELL THE SUPERVISING ARCHITECT'S OFFICE, SPECIFIC AUTHORITY HAS BEEN GIVEN IN THE ACTS RELATING TO THOSE ACTIVITIES.

THE ACT OF MARCH 2, 1919, 40 STAT. 1277, PROVIDING FOR THE INLAND WATER WAY FROM DELAWARE RIVER TO CHESAPEAKE BAY, DELAWARE AND MARYLAND, DOES NOT PROVIDE SPECIFICALLY FOR THE EMPLOYMENT OF EXPERT SERVICES, BUT INSTEAD THE APPROPRIATION, WHICH IS FOR THE PURCHASE OF THE EXISTING CANAL AND IMPROVEMENT THEREOF TO A DEPTH OF TWELVE FEET, IS TO BE EXPENDED UNDER THE DIRECTION OF THE SECRETARY OF WAR AND THE SUPERVISION OF THE CHIEF OF ENGINEERS. UNDER THE RULES OF STATUTORY CONSTRUCTION, THERE BEING AN APPROPRIATION FOR THE ENGINEER OFFICE FOR THE EMPLOYMENT OF SERVICES OF THE CHARACTER OF ENGINEERS AND OTHER TECHNICAL AND CIVILIAN EMPLOYEES, THE USE OF A MORE GENERAL APPROPRIATION IS NOT AVAILABLE TO, IN EFFECT, SUPPLEMENT THE MORE SPECIFIC APPROPRIATION. 16 COMP. DEC. 119 AND CASES CITED. THE USE OF AN APPROPRIATION TO BEST ADVANTAGE IS PROPER BUT THE USE MUST BE WITHIN WHAT CONGRESS AUTHORIZED BY THE APPROPRIATION AND MUST NOT TRANSGRESS THE GENERAL RESTRICTIONS PLACED BY CONGRESS UPON THE USE OF APPROPRIATIONS.

THE OFFICE OF CHIEF OF ENGINEERS HAS AVAILABLE ENGINEER OFFICERS OF THE ARMY, AND, IN ADDITION, IT IS PROVIDED IN THE ACTS OF EACH YEAR SUBSTANTIALLY AS WORDED IN THE ACT OF MARCH 1, 1919, 40 STAT. 1239, AS FOLLOWS:

THE SERVICES OF SKILLED DRAFTSMEN, CIVIL ENGINEERS, AND SUCH OTHER SERVICES AS THE SECRETARY OF WAR MAY DEEM NECESSARY, MAY BE EMPLOYED ONLY IN THE OFFICE OF THE CHIEF OF ENGINEERS, TO CARRY INTO EFFECT THE VARIOUS APPROPRIATIONS FOR RIVERS AND HARBORS, FORTIFICATIONS, AND SURVEYS AND PREPARATION FOR AND THE CONSIDERATION OF RIVER AND HARBOR ESTIMATES AND BILLS, TO BE PAID FROM SUCH APPROPRIATIONS: PROVIDED, * * * THE SECRETARY OF WAR SHALL EACH YEAR, IN THE ANNUAL ESTIMATES, REPORT TO CONGRESS THE NUMBER OF PERSONS SO EMPLOYED, THEIR DUTIES, AND THE AMOUNT PAID TO EACH.

IN THE CASE OF THE EMPLOYMENT OF HUGH L. COOPER AND COMPANY FOR ENGINEERING SERVICES IN CONNECTION WITH THE CONSTRUCTION OF WILSON DAM, DECISION OF NOVEMBER 23, 1922, 15 MS. COMP. GEN. 987, IT WAS SAID:

* * * OFFICERS AND EMPLOYEES MAY NOT ORDINARILY EMPLOY OTHERS TO PERFORM THEIR DUTIES, OR USE A CONSTRUCTION APPROPRIATION TO EMPLOY CONTRACT PERSONNEL IN LIEU OF OR IN ADDITION TO OFFICIAL PERSONNEL, THE MEANS OF EMPLOYMENT OF WHICH IS OTHERWISE AVAILABLE.

IN THE PRESENT CASE THE ENGAGEMENT BY CONTRACT AND PAYMENT OUT OF A GENERAL OR LUMP-SUM APPROPRIATION OF SUCH SERVICES FOR WHICH THE ENGINEER OFFICE IS ESTABLISHED TO FURNISH, AND WHICH ARE SPECIFICALLY PROVIDED FOR BY DEFINITE APPROPRIATION, IS SUBSTANTIALLY THE EMPLOYMENT OF SUCH SERVICE IN THE EXECUTIVE DEPARTMENT OF THE GOVERNMENT AND WOULD TEND TO EVADE THE STATUTORY LIMITATIONS UPON EMPLOYMENT OF PERSONAL SERVICES.

THE FURTHER OBJECTION TO THIS SERVICE RELATES TO THE MANNER OF ENGAGING SUCH ADDITIONAL SERVICE UNDER A SO-CALLED SUPPLEMENTAL CONTRACT. THE FIRST SERVICE OF THIS ENGINEERING FIRM WAS ENGAGED UPON WHAT IS UNDERSTOOD TO HAVE BEEN SUBMITTED BIDS, AND FOLLOWING, A CONTRACT WAS ENTERED INTO FOR THE FURNISHING OF DESIGNS FOR THE BRIDGES CONTEMPLATED IN THE EXISTING AUTHORIZED PLANS FOR THE WATERWAY FOR A CONSIDERATION OF $40,000 AND IT APPEARS THAT DESIGNS CONFORMABLE TO SUCH PLANS WERE COMPLETED AND FURNISHED AND THE FULL CONSIDERATION OF $40,000 PAID THEREFOR. THE SUBSEQUENT CONTRACT, THEREFORE, WAS NOT A SUPPLEMENTAL CONTRACT, BUT WAS IN REALITY A DISTINCTLY SEPARATE CONTRACT FOR NEW DESIGNS FOR BRIDGES HAVING WIDER SPANS, AND HENCE INVOLVING NEW ENGINEERING PROBLEMS AND REQUIRING REDESIGNING. THE MERE FACT THAT THE OLD DATA COULD BE USED BY THE CONTRACTORS, CONSTITUTED NO REASON FOR ACCORDING IT SPECIAL FAVORS, OR FOR IGNORING THE PROVISIONS OF SECTION 3709, REVISED STATUTES.

REVIEWING ALL THE CIRCUMSTANCES OF THIS CASE, THE CONCLUSION IS INESCAPABLE THAT THE ENGAGEMENT OF SUCH SERVICES OF THE FIRM OF ENGINEERS WAS NOT ONLY UNAUTHORIZED BUT THE MANNER OF THE PROCUREMENT WAS VIOLATIVE OF STATUTORY REQUIREMENTS. HOWEVER, IN VIEW OF THE REPORTED NECESSITY FOR SUCH SERVICES, THE RENDITION THEREOF AND PAYMENT THEREFOR, ALL WITH APPARENT TACIT APPROVAL OF THE CONGRESS, CREDIT FOR THE PAYMENTS WILL BE ALLOWED IN THIS INSTANCE AS UPON A QUANTUM MERUIT. ACCORDINGLY, CREDIT FOR $20,000 IS CERTIFIED IN THE ACCOUNTS OF THE PAYING OFFICER AND THE SUSPENSIONS MADE FOR THE PAYMENTS UNDER THE CONTRACT OF APRIL 21, 1922, WILL BE REMOVED, IF OTHERWISE CORRECT.

PAYMENTS UNDER FUTURE ENGAGEMENTS OF THE CHARACTER HEREIN DECLARED TO BE UNLAWFUL WILL NOT BE CREDITED IN THE ACCOUNTS OF PAYING OFFICERS. ALL CLAIMS BASED UPON EXISTING ENGAGEMENTS SHOULD BE SUBMITTED WITH FULL ADMINISTRATIVE REPORT AND RECOMMENDATION TO THE GENERAL ACCOUNTING OFFICE FOR DIRECT SETTLEMENT. OTHER SIMILAR PAYMENTS MADE UNDER EXECUTED AGREEMENTS WILL BE FOR CONSIDERATION IN THE AUDIT AS TO WHETHER THE COMPENSATION PAID EXCEEDS THE RATE AUTHORIZED BY LAW TO BE PAID FOR LIKE PERSONAL SERVICE, AND UPON OBTAINING THE DATA ESSENTIAL TO A PROPER DETERMINATION, CREDIT MAY BE ALLOWED AS UPON A QUANTUM MERUIT OR VALEBAT, FOR THE AMOUNT DUE, IF OTHERWISE CORRECT.