A-70528, APRIL 13, 1936, 15 COMP. GEN. 893

A-70528: Apr 13, 1936

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IS FOR INCLUSION IN ANY CONTRACT IN WHICH THE PERFORMANCE OF SERVICE. AS THE TERM IS ORDINARILY USED. IS THE PREDOMINANT ASPECT. AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISION OF JANUARY 2. IT IS NOTED YOU STATE THAT "THE PROVISION REFERRED TO IS REQUIRED IN EVERY CONTRACT "FOR ANY PUBLIC WORKS OR SERVICE. " " AND THAT "THIS REQUIREMENT OF THE STATUTE IS PLAIN AND MANDATORY.'. OR ACCOMPLISH NOTHING BECAUSE NO COAL WILL BE PURCHASED OR USED IN THE PERFORMANCE OF THE WORK OR SERVICE IS NOT FOR CONSIDERATION IN DETERMINING WHETHER THE CONTRACT SHALL CONTAIN THE PROVISION. THERE IS NO CHOICE BUT TO COMPLY WITH THE REQUIREMENT OF THE LAW IN THE CLASSES OF CONTRACTS TO WHICH IT IS BY ITS PLAIN TERMS MADE APPLICABLE.'.

A-70528, APRIL 13, 1936, 15 COMP. GEN. 893

CONTRACTS FOR "SERVICE" - BITUMINOUS COAL CONSERVATION ACT OF 1935 THE BITUMINOUS COAL PURCHASE PROHIBITION CLAUSE REQUIRED BY SECTION 14 (B) OF THE BITUMINOUS COAL CONSERVATION ACT OF 1935, 49 STAT. 1007, TO BE INCLUDED IN EACH CONTRACT BY THE UNITED STATES FOR ANY PUBLIC WORK OR SERVICE, IS FOR INCLUSION IN ANY CONTRACT IN WHICH THE PERFORMANCE OF SERVICE, AS THE TERM IS ORDINARILY USED, IS THE PREDOMINANT ASPECT, INCLUDING CONTRACTS FOR REPAIRS AND ALTERATIONS TO BUILDINGS, BUT SAID CLAUSE NEED NOT BE INCLUDED IN CONCESSION CONTRACTS.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, APRIL 13, 1936:

THERE HAS PEEN CONSIDERED YOUR LETTER OF JANUARY 28, 1936, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION OF JANUARY 2, 1936 (A-67002), TO THE POSTMASTER GENERAL RELATIVE TO THE APPLICATION OF SECTION 14 (B) OF THE BITUMINOUS COAL CONSERVATION ACT OF 1935, WITH RESPECT TO CONTRACTS WHEREBY THE CONTRACTORS UNDERTAKE TO PERFORM CERTAIN SERVICES FOR THE UNITED STATES, AND IT IS NOTED YOU STATE THAT "THE PROVISION REFERRED TO IS REQUIRED IN EVERY CONTRACT "FOR ANY PUBLIC WORKS OR SERVICE," " AND THAT "THIS REQUIREMENT OF THE STATUTE IS PLAIN AND MANDATORY.' YOU FURTHER STATE THAT:

"THE CONGRESS HAVING SEEN FIT TO IMPOSE THE REQUIREMENT WITH RESPECT TO SUCH CONTRACTS, NO OFFICIAL, AGENT, OR EMPLOYEE OF THE GOVERNMENT LEGALLY MAY EXECUTE A CONTRACT FOR ANY PUBLIC WORK OR SERVICE WHICH DOES NOT CONTAIN THE PROVISION REQUIRED BY SECTION 14 (B) OF THE BITUMINOUS COAL CONSERVATION ACT OF 1935, APPROVED AUGUST 30, 1935, 49 STAT. 1007, QUOTED IN YOUR LETTER. WHETHER SUCH REQUIREMENT MAY IN SOME INSTANCES INCREASE THE COST OF SUCH WORK OR SERVICE, CAUSE INCONVENIENCE TO ADMINISTRATIVE DEPARTMENT, OR ACCOMPLISH NOTHING BECAUSE NO COAL WILL BE PURCHASED OR USED IN THE PERFORMANCE OF THE WORK OR SERVICE IS NOT FOR CONSIDERATION IN DETERMINING WHETHER THE CONTRACT SHALL CONTAIN THE PROVISION. THE MATTER HAVING BEEN DETERMINED BY THE CONGRESS, THERE IS NO CHOICE BUT TO COMPLY WITH THE REQUIREMENT OF THE LAW IN THE CLASSES OF CONTRACTS TO WHICH IT IS BY ITS PLAIN TERMS MADE APPLICABLE.'

IN YOUR DECISION OF DECEMBER 19, 1935 (A-68690), TO THE SECRETARY OF THE TREASURY, TO WHICH YOU MAKE REFERENCE IN YOUR DECISION OF JANUARY 6, 1936 (A-69353), TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, YOU STATE THAT THE REQUIREMENTS OF SECTION 14 (B) OF THE BITUMINOUS COAL CONSERVATION ACT OF 1935 DO NOT APPLY TO THE PURCHASE OF BUTTER AND CHEESE OR OTHER PROVISIONS AND THAT "A CONTRACT FOR THE PURCHASE OF PROVISIONS IS NOT A CONTRACT "FOR ANY PUBLIC WORK OR SERVICE.'" IT IS BELIEVED THAT IT MAY BE PROPER TO ASSUME FROM THESE DECISIONS THAT SECTION 14 (B) OF THE BITUMINOUS COAL CONSERVATION ACT OF 1935 DOES NOT APPLY TO ORDINARY SUPPLY CONTRACTS UNDER WHICH CONTRACTORS OBLIGATE THEMSELVES TO FURNISH MATERIAL, SUPPLIES, OR EQUIPMENT, BUT NEITHER OF THESE DECISIONS NOR YOUR DECISION OF JANUARY 2, 1936 (A-67002), TO THE POSTMASTER GENERAL LAYS DOWN A GENERAL RULE FOR THE GUIDANCE OF CONTRACTING OFFICERS IN DETERMINING THE CLASSES OF CONTRACTS TO WHICH THE LAW IS APPLICABLE, AND IT IS SUGGESTED THAT A DEFINITION OF "SERVICE CONTRACT" WOULD MATERIALLY ASSIST EMPLOYEES RESPONSIBLE FOR PREPARING AND CONSUMMATING CONTRACTS INVOLVING EXPENDITURE OF PUBLIC FUNDS, IN DETERMINING WHEN THE STATUTE APPLIES. IN OTHER WORDS, WHAT CHARACTER OF SERVICE MUST A CONTRACT INVOLVE TO BRING IT WITHIN THE MEANING OF THE STATUTE? THE VETERANS' ADMINISTRATION IS CONFRONTED WITH THIS QUESTION IN CONNECTION WITH NUMEROUS CONTRACTS WHICH INVOLVE THE FURNISHING OF SERVICES AS WELL AS SUPPLIES AND SERVICES, AND A BRIEF OUTLINE OF THE SCOPE OF THESE CONTRACTS FOLLOWS:

HOSPITAL SERVICES.--- HOSPITAL CARE AND TREATMENT OF VETERANS' ADMINISTRATION BENEFICIARIES INCLUDES BED IN WARD, OR, IF REQUIRED, BED IN A SEMIPRIVATE OR PRIVATE ROOM, IF AVAILABLE; SUBSISTENCE; GENERAL NURSING; GENERAL MEDICAL AND SURGICAL CARE BY THE HOUSE PHYSICIANS OR INTERNES; ROUTINE LABORATORY EXAMINATIONS; THE USE OF THE OPERATING ROOM WHEN REQUIRED; ALL NECESSARY SURGICAL DRESSINGS; ALL MEDICINES EXCEPT SPECIAL AND UNUSUAL DRUGS PRESCRIBED BY THE ATTENDING PHYSICIAN.

DRUGS.--- ON PRESCRIPTION.

LABORATORY SERVICES.--- CLINICAL LABORATORY EXAMINATIONS SUCH AS BACTERIOLOGICAL, SPINAL FLUID, SPUTUM, ETC.

OPTICAL SUPPLIES.--- FURNISHING AND FITTING ARTIFICIAL EYES, LENSES, AND FRAMES.

ORTHOPEDIC AND PROSTHETIC SUPPLIES.--- FURNISHING AND FITTING ARTIFICIAL LIMBS, TRUSSES, SUPPORTING BELTS, ETC.

PHYSIOTHERAPY TREATMENTS.

VETERINARIAN SERVICES.--- TREATMENT OF SICK ANIMALS OF THE VETERANS' ADMINISTRATION.

AMBULANCE SERVICES.--- TRANSPORTATION OF PATIENTS OF THE VETERANS' ADMINISTRATION.

ASHES AND OTHER WASTE PRODUCTS.--- PURCHASE AND REMOVAL OF.

BOARD AND LODGING.--- FURNISHING MEALS AND LODGING TO BENEFICIARIES OF THE VETERANS' ADMINISTRATION.

BURIALS.--- FOR FURNISHING COMPLETE LOCAL BURIALS, INCLUDING EMBALMING, SHAVING, CLOTHING, DRESSING THE BODY, CASKET, OUTER CASE AND GRAVE IN CEMETERY, OR PREPARATION OF BODY FOR SHIPMENT, INCLUDING EMBALMING, SHAVING, CLOTHING, DRESSING THE BODY, CASKET, OUTER CASE FOR SHIPMENT, HEARSE TO COMMON CARRIER.

EMBALMING.--- CONTRACTS FOR EMBALMING, BATHING, SHAVING, AND DRESSING BODIES OF DECEASED BENEFICIARIES BURIED IN GOVERNMENT-OWNED CEMETERIES, CASKET AND CLOTHING FURNISHED BY THE GOVERNMENT.

DRAYAGE OF COAL AND OTHER SUPPLIES AND EQUIPMENT.

ELEVATOR INSPECTION.---INSPECTION AND REPORT.

EXTERMINATION OF VERMIN.

GARAGE.--- STORAGE OF GOVERNMENT-OWNED CARS.

HORSESHOEING.

LAUNDRY SERVICES.

MACHINE REPAIR.--- REPAIRING OF OFFICE MACHINES AND EQUIPMENT.

SHARPENING AND WELDING OF INSTRUMENTS.

WAREHOUSE CONTRACTS.--- RECEIPT, STORAGE, AND DISTRIBUTION OF SUBSISTENCE SUPPLIES. CHARGES FOR WHICH ARE ON A PACKAGE BASIS.

TEAM SERVICE.--- HIRING OF TEAM WITH DRIVER FOR WORK ON RESERVATION OF VETERANS' ADMINISTRATION.

MOTION-PICTURE FILM SERVICE.--- RENTAL OF FILMS TO BE SHOWN AT FACILITIES OF VETERANS' ADMINISTRATION.

WINDOW CLEANING.

CLOTHING.--- PURCHASE OF AND REPAIRS AND ALTERATIONS THERETO.

COKE.--- PURCHASE OF.

CONCESSION CONTRACTS.---RENTAL OF SPACE IN VETERANS' ADMINISTRATION FACILITIES FOR OPERATION OF RESTAURANTS, SUPPLY STORES, LUNCH COUNTERS, BARBER SHOPS, ETC.

HARVESTING OF CROPS RAISED ON RESERVATIONS OF VETERANS' ADMINISTRATION FACILITIES.

RECLAIMING OF SILVER FROM HYPOSULPHITE SOLUTIONS.

REPAIRS AND ALTERATIONS TO BUILDINGS, CONTRACTOR PERFORMING WORK AND FURNISHING MATERIALS.

IT WILL BE APPRECIATED IF YOU WILL ADVISE WHICH OF THE CONTRACTS ABOVE LISTED SHOULD INCLUDE THE PROVISIONS OF SECTION 14 (B) OF THE BITUMINOUS COAL CONSERVATION ACT OF 1935, OR SUFFICIENTLY DEFINE "SERVICE CONTRACT" SO AS TO ENABLE THE VETERANS' ADMINISTRATION TO DETERMINE FROM THE DEFINITION WHEN THE STATUTE IS FOR APPLICATION.

SECTION 14 (B) OF THE BITUMINOUS COAL CONSERVATION ACT OF 1935, 49 STAT. 1007, PROVIDES:

(B) EACH CONTRACT MADE BY THE UNITED STATES, OR ANY DEPARTMENT OR AGENCY THEREOF, WITH A CONTRACTOR FOR ANY PUBLIC WORK, OR SERVICE, SHALL CONTAIN A PROVISION THAT THE CONTRACTOR WILL BUY NO BITUMINOUS COAL TO USE ON OR IN THE CARRYING OUT OF SUCH CONTRACT FROM ANY PRODUCER EXCEPT SUCH PRODUCER BE A MEMBER OF THE CODE SET OUT IN SECTION 4 OF THIS ACT AS CERTIFIED TO BY THE NATIONAL BITUMINOUS COAL COMMISSION.

THE STATUTE BY ITS PLAIN TERMS INCLUDES EACH CONTRACT WITH A CONTRACTOR FOR ANY SERVICE. AS STATED IN THE DECISION OF JANUARY 2, 1936, A-67002 (15 COMP. GEN. 577), FROM WHICH YOU QUOTE, ONE OF THE DEFINITIONS OF "SERVICE" IS THE ACT OR MEANS OF SUPPLYING SOME GENERAL DEMAND. IT IS ALSO COMMONLY USED TO DENOTE ANY LABOR PERFORMED FOR THE BENEFIT OF ANOTHER. IT IS NEITHER POSSIBLE NOR NECESSARY TO DEFINE THE TERM WITH TECHNICAL PRECISION, BUT IT MUST BE UNDERSTOOD AS ORDINARILY USED.

THE PROVISION REQUIRED BY SECTION 14 (B) IS FOR INCLUSION IN CONTRACTS FOR HOSPITAL SERVICES, LABORATORY SERVICES, AMBULANCE SERVICES, BURIAL SERVICES, HORSESHOEING, AND ALL OTHER SERVICE CONTRACTS, OF WHATEVER CLASS OR DESCRIPTION. IT APPLIES TO ANY CONTRACT IN WHICH THE PERFORMANCE OF SERVICE IS THE PREDOMINANT ASPECT, ALTHOUGH SOME MATERIAL OR SUPPLIES MAY BE FURNISHED INCIDENTAL TO ITS PERFORMANCE. IT SHOULD BE INCLUDED IN CONTRACTS FOR REPAIRS AND ALTERATIONS TO BUILDINGS BUT IS NOT REQUIRED IN CONCESSION CONTRACTS.

IN CONNECTION WITH ORDINARY CONTRACTS FOR SUPPLIES, MATERIALS, OR EQUIPMENT YOUR ATTENTION IS INVITED TO THE DECISION OF FEBRUARY 24, 1936, A-70217 (15 COMP. GEN. 717), WHICH CONCLUDES AS FOLLOWS:

THE PURCHASE OF SUPPLIES, MATERIAL, OR EQUIPMENT IS NOT A CONTRACT FOR A PUBLIC WORK OR SERVICE WITHIN THE MEANING OF SECTION 14 (B) OF THE ACT, BUT A CONTRACT PROVIDING SPECIFICALLY FOR THE MANUFACTURE OR PRODUCTION OF EQUIPMENT WHERE THE WORK IS TO BE PERFORMED IN ACCORDANCE WITH GOVERNMENT SPECIFICATIONS AND UNDER GOVERNMENT SUPERVISION WOULD BE A CONTRACT FOR A "PUBLIC WORK OR SERVICE" WITHIN THE MEANING OF THE SECTION.

IF ANY DOUBT REMAINS AS TO THE APPLICATION OF THE STATUTORY PROVISION TO ANY PARTICULAR CONTRACT, THE MATTER MAY BE SUBMITTED HERE FOR DECISION WITH A FULL STATEMENT OF WHAT IS PROPOSED TO BE DONE UNDER SUCH CONTRACT.