A-98322, OCTOBER 15, 1938, 18 COMP. GEN. 347

A-98322: Oct 15, 1938

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHOSE DUTIES ARE NOT OF AN ADMINISTRATIVE CHARACTER OR SUCH AS A DEPARTMENT OR ESTABLISHMENT CHARGED WITH THE ADMINISTRATION OF CONSTRUCTION OR OTHER FIELD ACTIVITIES ORDINARILY HAS PERFORMED BY ITS DEPARTMENTAL FORCE. IS AS FOLLOWS: IN THE LAST PARAGRAPH OF YOUR DECISION A-96426. YOU STATED THAT IT WAS NOT UNREASONABLE TO ASSUME THAT SUCH COSTS OF CARRYING OUT THE PUBLIC WORKS CONSTRUCTION PROGRAM AS CAN NOT PROPERLY BE CHARGED TO THE CONSTRUCTION PROJECT ALLOTMENT AS BEING DIRECTLY INCIDENT TO THE PROSECUTION OF THE PROJECT. WERE INTENDED TO BE ABSORBED BY THE AGENCIES UNDER REGULAR APPROPRIATIONS MADE FOR THEIR ADMINISTRATIVE EXPENSES. 1938 (52 STAT. 809) IS IN SECTION 201 (F). IT IS FOUND TO BE MORE ECONOMICAL AND CONVENIENT TO PERFORM CERTAIN OF THE DUTIES INCIDENT TO THE PROSECUTION OF THE PROJECTS AT WASHINGTON.

A-98322, OCTOBER 15, 1938, 18 COMP. GEN. 347

PERSONAL SERVICES - SEAT OF GOVERNMENT - LEGISLATIVE PROHIBITORY PROVISIONS - ARCHITECTS, MECHANICAL ENGINEERS, AND ESTIMATORS ENGAGED ON FIELD ACTIVITIES BUT HEADQUARTERED IN WASHINGTON, D.C. THE EMPLOYMENT OF ARCHITECTURAL AND MECHANICAL ENGINEERS AND ESTIMATORS, WITH HEADQUARTERS IN WASHINGTON, D.C., FOR SERVICES REQUIRED SOLELY IN CONNECTION WITH PROJECTS, OR OTHER FIELD ACTIVITIES, LOCATED OUTSIDE THE DISTRICT OF COLUMBIA, WHOSE DUTIES ARE NOT OF AN ADMINISTRATIVE CHARACTER OR SUCH AS A DEPARTMENT OR ESTABLISHMENT CHARGED WITH THE ADMINISTRATION OF CONSTRUCTION OR OTHER FIELD ACTIVITIES ORDINARILY HAS PERFORMED BY ITS DEPARTMENTAL FORCE, AND PAYMENT OF THEIR COMPENSATION FROM FUNDS ALLOTTED TO THE INDIAN SERVICE PURSUANT TO SECTION 201 (C) OF THE PUBLIC WORKS ADMINISTRATION APPROPRIATION ACT OF 1938, 52 STAT. 816, DOES NOT CONSTITUTE A VIOLATION OF THE SEAT OF GOVERNMENT EMPLOYMENT PROHIBITIONS OF SECTIONS 45 AND 46, TITLE 5, U.S. CODE, BUT, AS TO SERVICES OF CLASSES WHICH MAY NOT BE SO ENGAGED AND PAID FOR, SEE DECISIONS CITED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, OCTOBER 15, 1938:

YOUR LETTER OF SEPTEMBER 30, 1938, IS AS FOLLOWS:

IN THE LAST PARAGRAPH OF YOUR DECISION A-96426, DATED JULY 20, 1938, YOU STATED THAT IT WAS NOT UNREASONABLE TO ASSUME THAT SUCH COSTS OF CARRYING OUT THE PUBLIC WORKS CONSTRUCTION PROGRAM AS CAN NOT PROPERLY BE CHARGED TO THE CONSTRUCTION PROJECT ALLOTMENT AS BEING DIRECTLY INCIDENT TO THE PROSECUTION OF THE PROJECT, WERE INTENDED TO BE ABSORBED BY THE AGENCIES UNDER REGULAR APPROPRIATIONS MADE FOR THEIR ADMINISTRATIVE EXPENSES. YOU ALSO POINT OUT THAT THE ONLY PROVISION FOR EMPLOYMENT AT THE SEAT OF GOVERNMENT CONTAINED IN THE ACT OF JUNE 21, 1938 (52 STAT. 809) IS IN SECTION 201 (F).

IN CARRYING OUT THAT PART OF THE CONSTRUCTION PROGRAM OF THE INDIAN SERVICE FINANCED BY FUNDS ALLOTTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 201 (C) OF TITLE II OF THE ACT OF JUNE 21, 1938, IT IS FOUND TO BE MORE ECONOMICAL AND CONVENIENT TO PERFORM CERTAIN OF THE DUTIES INCIDENT TO THE PROSECUTION OF THE PROJECTS AT WASHINGTON, D.C., RATHER THAN AT OTHER POINTS IN THE FIELD.

THESE DUTIES WILL INCLUDE THE CHECKING OF SAMPLES SUBMITTED BY CONTRACTORS FOR COMPLIANCE WITH PROJECT SPECIFICATIONS AND APPLICABLE FEDERAL SPECIFICATIONS; THE REVIEWING OF SHOP DRAWINGS RELATING TO PROJECTS; THE INTERPRETING OF DRAWINGS AND SPECIFICATIONS AS WELL AS THE CHECKING OF QUANTITIES AND UNIT PRICES FOR ALL CHANGE ORDERS REFERRING TO A PROJECT; AND THE DETERMINING OF FINAL GRADES AND ELEVATIONS WITH REFERENCE THERETO. PERSONS EMPLOYED IN THIS WORK WILL ALSO MAKE ACTUAL INSPECTIONS OF CONSTRUCTION WORK INCLUDING THE FINAL INSPECTIONS TO DETERMINE ACCEPTABILITY OF THE PROJECT.

THE PERSONS TO BE EMPLOYED IN THIS WORK WILL BE ARCHITECTURAL AND MECHANICAL ENGINEERS AND ESTIMATORS. TIME RECORDS WILL BE MAINTAINED FOR EACH EMPLOYEE, SHOWING THE TIME SPENT PERFORMING WORK INCIDENT TO EACH PARTICULAR PROJECT. ALL OF THE WORK WILL BE SUPERVISED BY PERSONNEL PAID FROM REGULAR APPROPRIATIONS, THUS EFFECTING A SAVINGS EQUIVALENT TO THE SALARIES OF SUPERVISORY PERSONNEL IF THE WORK WERE DONE AT THE SITE OF THE PROJECT. THE COSTS IN SUCH INSTANCES CAN BE CHARGED TO THE CONSTRUCTION PROJECTS AND ARE DIRECTLY INCIDENT THERETO.

YOUR DECISION ON THE FOLLOWING QUESTION IS REQUESTED:

CAN THE PERSONNEL NECESSARY FOR THE PERFORMANCE OF FUNCTIONS THAT CAN BE CHARGED TO CONSTRUCTION PROJECTS AND ARE DIRECTLY INCIDENT TO THE PROSECUTION OF THE PROJECT, BE CONSTRUED AS A FIELD FORCE WHEN HEADQUARTERED AT WASHINGTON, D.C. ? IN THIS CONNECTION, SEE YOUR DECISION OF APRIL 9, 1915 (21 COMP. GEN. (DEC.) 709).

IT WOULD BE APPRECIATED IF A DECISION IN THIS MATTER COULD BE REACHED AT AN EARLY DATE.

SECTIONS 45 AND 46, TITLE 5, U.S. CODE, THE LATTER OF WHICH WAS CITED IN THE LAST PARAGRAPH OF THE DECISION OF JULY 20, 1938, A-96426, 18 COMP. GEN. 74, TO WHICH YOU CALL ATTENTION, PROVIDE AS FOLLOWS:

SEC. 45. OFFICERS, CLERKS, AND EMPLOYEES. NO CIVIL OFFICER, CLERK, AGENT, DRAUGHTSMAN, COPYIST, MESSENGER, ASSISTANT MESSENGER, MECHANIC, ENGINEER, WATCHMAN, LABORER OR OTHER EMPLOYEE SHALL BE EMPLOYED IN ANY OF THE EXECUTIVE DEPARTMENTS, OR SUBORDINATE BUREAUS OR OFFICERS THEREOF AT THE SEAT OF GOVERNMENT, EXCEPT AS PROVIDED BY SECTION 43 OF THIS TITLE. (AUG. 15, 1876, C. 287, SEC. 5, 19 STAT. 169; AUG. 5, 1882, C. 389, SEC. 4, 22 STAT. 255; MAR. 4, 1923, C. 265, 42 STAT. 1488.)

SEC. 46. PAYMENT FOR SERVICES FOR APPROPRIATIONS FOR CONTINGENT EXPENSES OR FOR SPECIFIC OR GENERAL PURPOSES. NO CIVIL OFFICER, CLERK, DRAUGHTSMAN, COPYIST, MESSENGER, ASSISTANT MESSENGER, MECHANIC, WATCHMAN, LABORER, OR OTHER EMPLOYEE SHALL BE EMPLOYED AT THE SEAT OF GOVERNMENT IN ANY EXECUTIVE DEPARTMENT OR SUBORDINATE BUREAU OR OFFICE THEREOF OR BE PAID FROM ANY APPROPRIATION MADE FOR CONTINGENT EXPENSES, OR FOR ANY SPECIFIC OR GENERAL PURPOSE, UNLESS SUCH EMPLOYMENT IS AUTHORIZED AND PAYMENT THEREFOR PROVIDED IN THE LAW GRANTING THE APPROPRIATION, AND THEN ONLY FOR SERVICES ACTUALLY RENDERED IN CONNECTION WITH AND FOR THE PURPOSES OF THE APPROPRIATION FROM WHICH PAYMENT IS MADE, AND AT THE RATE OF COMPENSATION PROVIDED FOR IN CHAPTER 13 OF THIS TITLE. (AUG. 5, 1882, C. 389, SEC. 4, 22 STAT. 255; MAR. 4, 1923, C. 265, 42 STAT. 1488.)

FROM YOUR DESCRIPTION OF THE DUTIES OF THE ARCHITECTURAL AND MECHANICAL ENGINEERS AND ESTIMATORS PROPOSED TO BE EMPLOYED WITH HEADQUARTERS IN WASHINGTON, D.C., IT MAY BE HELD THAT THE SERVICES ARE REQUIRED SOLELY IN CONNECTION WITH PROJECTS, OR OTHER FIELD ACTIVITIES OF SIMILAR CHARACTER, LOCATED OUTSIDE THE DISTRICT OF COLUMBIA, AND THAT THE DUTIES ARE NOT OF AN ADMINISTRATIVE CHARACTER OR SUCH AS A DEPARTMENT OR ESTABLISHMENT CHARGED WITH THE ADMINISTRATION OF CONSTRUCTION OR OTHER FIELD ACTIVITIES ORDINARILY HAS PERFORMED BY ITS DEPARTMENTAL FORCE. CONSEQUENTLY THEIR EMPLOYMENT AND THE PAYMENT OF THEIR COMPENSATION UNDER THE ALLOTMENT OF FUNDS TO THE INDIAN SERVICE MADE PURSUANT TO SECTION 201 (C) OF THE PUBLIC WORKS ADMINISTRATION APPROPRIATION ACT OF 1938, 52 STAT. 816, DOES NOT CONSTITUTE A VIOLATION OF SECTIONS 45 AND 46, TITLE 5, U.S. CODE, SUPRA. SEE IN THIS CONNECTION 3 COMP. DEC. 330; 7 ID. 258; 14 ID. 874; 6 COMP. GEN. 487, AND DECISION OF JUNE 15, 1912, TO THE SECRETARY OF THE INTERIOR. HOWEVER, WITH RESPECT TO SERVICES OF CLASSES WHICH MAY NOT BE SO ENGAGED AND PAID FOR, YOUR ATTENTION IS INVITED TO 3 COMP. DEC. 263; 9 ID. 63; 12 ID. 810; 13 ID. 225; 17 ID. 479 AND 780; 20 ID. 406; 21 ID. 157, 663, AND 709; 22 ID. 545; 25 ID. 706; 26 ID. 880; 27 ID. 643; 5 COMP. GEN. 968.