A-69795, MARCH 16, 1936, 15 COMP. GEN. 805

A-69795: Mar 16, 1936

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IN CONNECTION WITH EXHIBITS TO BE PRESENTED AT THE TEXAS CENTENNIAL EXPOSITION ARE AVAILABLE FOR CONTRACTING. SAID CONTRACTS ARE FOR EXECUTION BY THE SECRETARY OF THE TREASURY. THE UNITED STATES TEXAS CENTENNIAL COMMISSION PROPOSES TO DIRECT THE PUBLIC HEALTH SERVICE TO ENGAGE THE SERVICES OF CERTAIN EDUCATIONAL INSTITUTIONS IN THE STATE OF TEXAS TO PREPARE A NUMBER OF INDIVIDUAL EXHIBITS THAT WILL BE AN IMPORTANT PART OF THE SCIENTIFIC EXHIBIT ABOVE REFERRED TO AS "THE STORY OF LIFE.'. IN MOST CASES THE SCIENTISTS WHO WILL PREPARE THESE EXHIBITS HAVE DONE ORIGINAL RESEARCH IN THESE SPECIAL FIELDS WITH WHICH THE EXHIBITS ARE CONCERNED. THESE EXHIBITS WILL LARGELY PRESENT THE CONTRIBUTIONS MADE TO SCIENCE BY THESE SPECIAL WORKERS.

A-69795, MARCH 16, 1936, 15 COMP. GEN. 805

EXHIBITS - TEXAS CENTENNIAL COMMISSION - NONPERSONAL SERVICE CONTRACTS WITHOUT COMPETITION FUNDS ALLOCATED TO THE PUBLIC HEALTH SERVICE BY THE TEXAS CENTENNIAL COMMISSION FROM THE APPROPRIATION MADE BY THE ACT OF AUGUST 12, 1935, 49 STAT. 575, IN CONNECTION WITH EXHIBITS TO BE PRESENTED AT THE TEXAS CENTENNIAL EXPOSITION ARE AVAILABLE FOR CONTRACTING, WITHOUT COMPETITION, WITH VARIOUS STATE EDUCATIONAL INSTITUTIONS FOR THE PREPARATION OF SAID EXHIBITS, THE CONTRACTS INVOLVING ONLY A REIMBURSEMENT FOR THE COST OF MATERIALS USED AND NOT THE PROCUREMENT OF PERSONAL SERVICES AS SUCH, NO PERSON NOW IN GOVERNMENT SERVICE APPEARING PECULIARLY QUALIFIED THEREFOR, AND SATISFACTORY EXHIBIT COMPETITION OF THE TYPE DESIRED NOT BEING AVAILABLE, BUT SAID CONTRACTS ARE FOR EXECUTION BY THE SECRETARY OF THE TREASURY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE UNITED STATES TEXAS CENTENNIAL COMMISSION, MARCH 16, 1936:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 9, 1936, AS FOLLOWS:

THE UNITED STATES TEXAS CENTENNIAL COMMISSION HAS ALLOCATED TO THE UNITED STATES PUBLIC HEALTH SERVICE THE SUM OF $30,000 FOR THE PURPOSE OF PREPARING EXHIBITS TO BE PRESENTED AT THE TEXAS CENTENNIAL EXPOSITION. ADVISORY COMMITTEE APPOINTED BY THE COMMISSION HAS RECOMMENDED THAT A SCIENTIFIC EXHIBIT BE PRESENTED WHICH WOULD ENDEAVOR TO PORTRAY IN AN ILLUSTRATIVE AND INTERESTING MANNER THE FUNDAMENTAL FACTS REGARDING LIVING THINGS, THIS EXHIBIT TO BE KNOWN AS "THE STORY OF LIFE.'

THE UNITED STATES TEXAS CENTENNIAL COMMISSION PROPOSES TO DIRECT THE PUBLIC HEALTH SERVICE TO ENGAGE THE SERVICES OF CERTAIN EDUCATIONAL INSTITUTIONS IN THE STATE OF TEXAS TO PREPARE A NUMBER OF INDIVIDUAL EXHIBITS THAT WILL BE AN IMPORTANT PART OF THE SCIENTIFIC EXHIBIT ABOVE REFERRED TO AS "THE STORY OF LIFE.' IN MOST CASES THE SCIENTISTS WHO WILL PREPARE THESE EXHIBITS HAVE DONE ORIGINAL RESEARCH IN THESE SPECIAL FIELDS WITH WHICH THE EXHIBITS ARE CONCERNED. THESE EXHIBITS WILL LARGELY PRESENT THE CONTRIBUTIONS MADE TO SCIENCE BY THESE SPECIAL WORKERS. INDICATIVE OF THE TYPE OF EXHIBIT WHICH IS CONTEMPLATED, THE FOLLOWING IS SUBMITTED:

TABLE

EXHIBITS FROM INSTITUTIONS IN TEXAS

SCHOOL EXHIBIT ESTIMATED

COST TEXAS CHRISTIAN UNIVERSITY --- WATER AND LIFE ----------------- $125

CONTRIBUTION OF CHEMISTRY TO

LIFE ------------------------ 125 TEXAS A. AND M. COLLEGE ------ STORY OF VITAMINS -------------- 900

PLANT DISEASES ----------------- 1,500

ANATOMY AND PHYSIOLOGY OF PLANTS 528

STORY OF THE TEXAS TICK -------- 1,000

COMPARATIVE PATHOLOGY, LOWER

ANIMALS AND MAN. 3,000

PLANT DISEASE EXHIBIT ---------- 500 RICE INSTITUTE --------------- PHYSIOLOGY AND PSYCHOLOGY ------ 1,100

INTESTINAL PARASITES ----------- 1,000

ENDOCRINE EXHIBIT -------------- 500 BAYLOR UNIVERSITY ---------- - TEXAS TREES -------------------- 150

TEXAS FISHES, NATURAL COLORS --- 150

MAPS RELATING TO POPULATION AND

LIVING CONDITIONS. 100 BAYLOR MEDICAL SCHOOL -------- INSECTS OF MEDICAL -VETERINARY

IMPORTANCE. 100

EMBRYOLOGY EXHIBITS ------------ 100

ETIOLOGY OF HUMAN DISEASE ------ 150 SOUTHERN METHODIST UNIVERSITY INSECTIVOROUS PLANTS ----------- 770 UNIVERSITY OF TEXAS ---------- THE STORY OF HEREDITY ---------- 500 TEXAS WOMAN'S COLLEGE -------- TEXAS DIETS UNDER SIX FLAGS ---- 300

DIETS FOR VARIOUS ECONOMIC

LEVELS ---------------------- 300 UNIVERSITY OF TEXAS MEDICAL STRUCTURE OF THE HUMAN BODY ---- 150

SCHOOL. -------

TOTAL ------------------ -------------------------------- 13,048

FROM THE ABOVE IT WILL BE SEEN THAT CERTAIN SPECIFIC EXHIBITS WHICH MEMBERS OF THE FACULTIES OF THESE INSTITUTIONS ARE PECULIARLY EQUIPPED AND QUALIFIED TO PREPARE ARE PLANNED FOR USE AT THE TEXAS CENTENNIAL EXPOSITION.

IT IS DESIRED TO POINT OUT THAT THE ACTUAL COST OF PREPARING THESE EXHIBITS IN THE MANNER ABOVE-MENTIONED IS CONSIDERABLY BELOW THAT WHICH WOULD BE REQUIRED IF THEY WERE PREPARED BY COMMERCIAL CONCERNS. MOREOVER, IT IS NOT KNOWN WHERE SUCH EXHIBITS MIGHT BE OBTAINED OTHER THAN AT THE INSTITUTIONS AT WHICH THIS WORK IS BEING DONE. THE SALARIES OF THE SCIENTISTS ATTACHED TO THE FACULTIES OF THESE INSTITUTIONS, THE LABORATORY TECHNICIANS, THE LABORATORY FACILITIES, AND OTHER FACTORS WHICH GO TO MAKE ADMINISTRATIVE OVERHEAD EXPENSE ARE ALL TAKEN CARE OF AT PRESENT BY THE INSTITUTIONS AT WHICH THEY ARE EMPLOYED IN TEACHING OR RESEARCH WORK. THE PRINCIPAL ACTUAL COST IN PREPARING THESE EXHIBITS WOULD BE ONLY THE COST OF MATERIALS USED IN CONSTRUCTING AND ASSEMBLING THEM.

IN VIEW OF THESE REPRESENTATIONS, ADVICE IS REQUESTED AS TO WHETHER THE SERVICES ABOVE-MENTIONED MAY BE REGARDED AS SPECIAL OR ARTISTIC, FOR WHICH COMPETITION MAY NOT BE REQUIRED.

INASMUCH AS THE EXPOSITION OPENS JUNE 6TH, AND IT IS NECESSARY THAT THE INSTALLATION OF THE EXHIBITS MUST BEGIN BY THE MIDDLE OF MAY, IT WILL BE APPRECIATED IF THE ADVICE REQUESTED ABOVE BE GIVEN WITH THE LEAST POSSIBLE DELAY.

SECTION 7 OF THE ACT OF JUNE 28, 1935 (49 STAT. 433), AUTHORIZES THE COMMISSION "TO MAKE ANY EXPENDITURES OR ALLOTMENTS DEEMED NECESSARY BY IT TO FULFILL PROPERLY THE PURPOSES OF" THE ACT. SAID SECTION FURTHER PROVIDES THAT THE APPROPRIATION AUTHORIZED BY THE ACT SHALL BE AVAILABLE FOR THE SELECTION, PURCHASE, PREPARATION, ASSEMBLING, TRANSPORTATION, INSTALLATION, ARRANGEMENT, SAFEKEEPING, EXHIBITION, DEMONSTRATION, AND RETURN OF "SUCH ARTICLES AND MATERIALS AS THE COMMISSION MAY DECIDE SHALL BE INCLUDED IN THE GOVERNMENT EXHIBIT AND IN THE EXHIBITS OF THE TEXAS CENTENNIAL COMMISSION OF THE COMMISSION OF CONTROL FOR TEXAS CENTENNIAL CELEBRATIONS OR THE TEXAS CENTENNIAL CENTRAL EXPOSITION," AND THAT THE COMMISSION OR ITS DELEGATED REPRESENTATIVE MAY ALLOT FUNDS APPROPRIATED TO CARRY OUT THE PROVISIONS OF THE ACT "TO ANY EXECUTIVE DEPARTMENT, INDEPENDENT OFFICE, OR ESTABLISHMENT OF THE GOVERNMENT WITH THE CONSENT OF THE HEADS THEREOF, FOR DIRECT EXPENDITURE BY SUCH EXECUTIVE DEPARTMENT, INDEPENDENT OFFICE, OR ESTABLISHMENT, FOR THE PURPOSE OF DEFRAYING ANY EXPENDITURE WHICH MAY BE INCURRED BY SUCH EXECUTIVE DEPARTMENT, INDEPENDENT OFFICE, OR ESTABLISHMENT IN EXECUTING THE DUTIES AND FUNCTIONS DELEGATED BY THE COMMISSION.'

THE ACT OF AUGUST 12, 1935, 49 STAT. 575, APPROPRIATING FUNDS FOR THE PURPOSE OF CARRYING INTO EFFECT THE PROVISIONS OF THE PUBLIC RESOLUTION PROVIDES:

FOR THE PURPOSE OF CARRYING INTO EFFECT THE PROVISIONS OF THE PUBLIC RESOLUTION ENTITLED "JOINT RESOLUTION PROVIDING FOR THE PARTICIPATION OF THE UNITED STATES IN THE TEXAS CENTENNIAL EXPOSITION AND CELEBRATIONS TO BE HELD IN THE STATE OF TEXAS DURING THE YEARS 1935 AND 1936, AND AUTHORIZING THE PRESIDENT TO INVITE FOREIGN COUNTRIES AND NATIONS TO PARTICIPATE THEREIN, AND FOR OTHER PURPOSES," APPROVED JUNE 28, 1935, AND FOR EACH AND EVERY OBJECT THEREOF, AND WITHIN THE LIMITS OF THE COST SPECIFIED THEREIN, $3,000,000, SAID SUM TO INCLUDE $300,000 TOWARD THE TEXAS MEMORIAL MUSEUM TO BE GRANTED TO THE BOARD OF DIRECTORS OF SUCH MUSEUM FOR EXPENDITURES FOR SUCH PURPOSE, TO REMAIN AVAILABLE UNTIL EXPENDED.

IT IS UNDERSTOOD FROM YOUR SUBMISSION THAT THE INDIVIDUAL EXHIBITS IN QUESTION ARE REPRESENTATIVE OF THE ACCOMPLISHMENTS OF VARIOUS TEXAS INSTITUTIONS AND THAT THE COMMISSION HAS DETERMINED SUCH EXHIBITS ARE PROPER FOR INCLUSION IN, AND IN KEEPING WITH THE PURPOSE OF, THE EXHIBITS PROVIDED FOR UNDER THE ACT, THE COST OF PREPARATION, ETC., OF WHICH IS PROPOSED TO BE DEFRAYED FROM THE APPROPRIATION MADE BY THE ACT OF AUGUST 12, 1935, SUPRA. IT FURTHER APPEARS THAT UNDER THE AUTHORITY OF SECTION 6 OF THE PUBLIC RESOLUTION, AUTHORIZING THE HEADS OF THE VARIOUS EXECUTIVE DEPARTMENTS, INDEPENDENT OFFICES AND ESTABLISHMENTS OF THE GOVERNMENT TO COOPERATE WITH THE COMMISSIONER GENERAL IN THE PROCUREMENT OF EXHIBITS AND OTHERWISE TO CONTRACT FOR SUCH LABOR OR OTHER SERVICES AS SHALL BE DEEMED NECESSARY, THE COMMISSION HAS DETERMINED IT TO BE ADVISABLE TO DELEGATE THE DUTIES AND FUNCTIONS NECESSARY IN PROCURING THE EXHIBITS IN QUESTION TO THE UNITED STATES PUBLIC HEALTH SERVICE AND TO ALLOCATE $30,000, TO SAID SERVICE FOR SUCH PURPOSE.

IN THE CIRCUMSTANCES, IT BEING UNDERSTOOD THAT THE FUNDS ARE TO BE EXPENDED IN ACCORDANCE WITH ALL APPLICABLE STATUTORY REQUIREMENTS, THE ALLOCATION OF FUNDS PROPOSED DOES NOT APPEAR TO BE FOR QUESTIONING BY THIS OFFICE.

YOU REQUEST DECISION WHETHER THE SERVICES INVOLVED IN THE PREPARATION OF THE EXHIBITS, ETC., AS OUTLINED IN YOUR SUBMISSION, MAY BE REGARDED AS SPECIAL OR ARTISTIC FOR WHICH THE REQUIREMENTS OF COMPETITION MAY BE WAIVED.

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; 14 ID. 909. IT WOULD NOT BE PERMISSIBLE, THEREFORE, TO CONTRACT WITH THE EDUCATIONAL INSTITUTIONS FOR THE FURNISHING OF THE SERVICES OF SCIENTISTS IN THEIR EMPLOY AND FOR THE PAYMENT OF SUCH SERVICES FROM APPROPRIATED FUNDS. IF IT IS ADMINISTRATIVELY DETERMINED THAT THE EMPLOYMENT FOR HIRE OF THE SERVICES OF SUCH SCIENTISTS IS NECESSARY, THEY SHOULD BE SECURED EITHER BY DIRECT EMPLOYMENT OR BY CONTRACTING DIRECTLY WITH THEM AND NOT THROUGH AN INTERMEDIATE AGENCY.

HOWEVER, IT IS NOTED FROM THE FACTS ENUMERATED IN YOUR SUBMISSION "THAT THE PRINCIPAL ACTUAL COST IN PREPARING THESE EXHIBITS WOULD BE ONLY THE COST OF MATERIALS USED IN CONSTRUCTING AND ASSEMBLING THEM," AND THAT THE SALARIES OF THE SCIENTISTS PREPARING THE EXHIBITS, THE LABORATORY FACILITIES, TECHNICIANS, AND OTHER FACTORS OF OVERHEAD EXPENSE ARE ALL TO BE TAKEN CARE OF BY THE INSTITUTIONS BY WHICH THE SCIENTISTS ARE EMPLOYED. UNDER SUCH CIRCUMSTANCES THE QUESTION INVOLVED WOULD APPEAR TO BE THE LEGALITY OF CONTRACTING WITH THE VARIOUS INSTITUTIONS TO PREPARE THE EXHIBITS, ON CONDITION THAT THEY BE REIMBURSED THE COST OF MATERIALS ENTERING INTO THE CONSTRUCTION AND ASSEMBLING OF THE EXHIBITS, RATHER THAN ONE OF EMPLOYMENT OF PERSONAL SERVICES. THE PROCUREMENT OF THE EXHIBITS CONTEMPLATES THE FURNISHING OF MATERIALS AND SUPPLIES USED IN CONSTRUCTING THEM, IN ADDITION TO PERSONAL SERVICES, AND REQUIRES THE SERVICES OF PARTICULAR SCIENTISTS, NO PERSON NOW IN THE GOVERNMENT SERVICE APPEARING QUALIFIED TO PERFORM THE WORK SATISFACTORILY, AND WITH RESPECT THERETO IT REASONABLY WOULD APPEAR THAT UNDER THE CIRCUMSTANCES NO SATISFACTORY COMPETITION IS AVAILABLE.

ACCORDINGLY, YOU ARE ADVISED THAT THIS OFFICE IS NOT REQUIRED TO OBJECT TO THE PROCUREMENT OF THE EXHIBITS ON THE BASIS OF THE COST OF MATERIALS USED IN CONSTRUCTING AND ASSEMBLING THEM BEING DEFRAYED FROM FUNDS ALLOCATED TO THE UNITED STATES PUBLIC HEALTH SERVICE, TREASURY DEPARTMENT, FOR THE PREPARATION OF SUCH EXHIBITS, PROVIDED THE CONTRACTS THEREFOR ARE EXECUTED BY THE SECRETARY OF THE TREASURY, AS THE HEAD OF THE EXECUTIVE DEPARTMENT CONCERNED, WITHIN THE MEANING OF SECTION 6 OF THE ACT OF JUNE 28, 1935, SUPRA. ..END :