B-102836, JUNE 1, 1951, 30 COMP. GEN. 490

B-102836, JUNE 1, 1951, 30 COMP. GEN. 490

ADVERTISING - NECESSITY OR NON-NECESSITY - PERSONAL SERVICES A PURCHASE ORDER WHICH WAS ISSUED WITHOUT ADVERTISING FOR THE TECHNICAL AND PROFESSIONAL SERVICES OF AN ARTIST WHICH WERE REQUIRED TO BE PERFORMED BY THE ARTIST IN PERSON, DEFINING THE WORD "PERSON" AS INCLUDING A GROUP OF PERSONS WORKING FOR THE CONTRACTOR, IS NOT A CONTRACT FOR PERSONAL SERVICES SO AS TO BE EXCEPTED FROM THE ADVERTISING REQUIREMENTS OF SECTION 3709, REVISED STATUTES, AS AMENDED.

COMPTROLLER GENERAL WARREN TO LOUIS LITSKY, DEPARTMENT OF LABOR, JUNE 1, 1951:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 17, 1951, IN WHICH YOU REQUEST A DECISION AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT BUREAU VOUCHER NO. 4827 SUBMITTED THEREWITH IN FAVOR OF KETCHUM, MACLEOD AND GROVE, INC., IN THE AMOUNT OF $6,885, COVERING CLAIM FOR THE COST OF PREPARING THE BUREAU'S 1951 FARM PLACEMENT RECRUITMENT KIT IN ACCORDANCE WITH PURCHASE ORDER NO. 51-1355, DATED OCTOBER 27, 1950.

IN YOUR LETTER YOU STATE THAT THE PURCHASE ORDER WAS ISSUED WITHOUT ADVERTISING BECAUSE THE SERVICES WERE OF A PROFESSIONAL AND TECHNICAL NATURE IN THAT THE ARTIST WAS REQUIRED TO CREATE A BASIC THEME FOR THE FARM LABOR RECRUITMENT PROGRAM AND TO PROVIDE ORIGINAL MATERIAL FOR EFFECTIVE EXPRESSION OF THIS THEME THROUGH A VARIETY OF CHANNELS, SUCH AS SPEECHES, NEWS RELEASES, RADIO COMMERCIALS, CARTOONS, POSTERS, WINDOW DISPLAYS, FOLDERS, LETTERS TO SPECIAL GROUPS, ETC.; AND THE SERVICES WERE REQUIRED TO BE PERFORMED BY THE ARTIST IN PERSON, DEFINING THE WORD "PERSON" AS INCLUDING A GROUP OF PERSONS WHO WERE KNOWN TO BE WORKING FOR THE CONTRACTOR AND WHOSE HANDIWORK WAS KNOWN FAVORABLY TO THE OFFICIALS OF THE FARM PLACEMENT SERVICE.

SECTION 3709, REVISED STATUTES, AS AMENDED, 41 U.S.C. 5, PROVIDES, IN PERTINENT PART, THAT:

UNLESS OTHERWISE PROVIDED IN THE APPROPRIATION CONCERNED OR OTHER LAW, PURCHASES AND CONTRACTS FOR SUPPLIES OR SERVICES FOR THE GOVERNMENT MAY BE MADE OR ENTERED INTO ONLY AFTER ADVERTISING A SUFFICIENT TIME PREVIOUSLY FOR PROPOSALS, EXCEPT * * * (4) WHEN THE SERVICES ARE REQUIRED TO BE PERFORMED BY THE CONTRACTOR IN PERSON AND ARE (A) OF A TECHNICAL AND PROFESSIONAL NATURE * * *.

THIS OFFICE HAS HELD CONSISTENTLY THAT THE EXCEPTION OF PERSONAL SERVICES FROM THE ADVERTISING REQUIREMENTS OF SECTION 3709, AS AMENDED, IS IDENTIFIED WITH AND ATTACHES TO THE INDIVIDUAL--- AND GOES TO THE CHARACTER OR STATUS OF THE ONE CONTRACTING AND MEANS THAT THE PERSONAL ELEMENT PREDOMINATES--- AND NECESSITATES THAT THERE BE A 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; 6 ID. 430; 14 ID. 909; 19 ID. 523. IN THE DECISION LAST CITED, IT WAS STATED THAT---

* * * A CONTRACT FOR PERSONAL SERVICES HAS BEEN DEFINED AS "ONE BY WHICH THE INDIVIDUAL CONTRACTED WITH RENDERS HIS PERSONAL SERVICE TO THE GOVERNMENT THROUGH ITS AGENTS, THUS HIMSELF BECOMING THE SERVANT OF THE GOVERNMENT.' 15 OP. ATTY. GEN. 235, 243. AND, AGAIN SPEAKING WITH REFERENCE TO WHAT CONSTITUTES PERSONAL SERVICES WITHIN THE MEANING OF SECTION 3709, REVISED STATUTES, IT WAS SAID, BY THE THEN ATTORNEY GENERAL IN ANOTHER OPINION (15 OP. ATTY. GEN. 546) THAT "MOREOVER, I UNDERSTAND THE PERSONAL SERVICE MENTIONED IN THAT SECTION TO BE PERSONAL SERVICE OF THE PARTY CONTRACTED WITH AND NOT PERSONAL SERVICE WHICH HE SHALL EMPLOY.' THE ,PERSONAL SERVICES" REFERRED TO IN THE STATUTE WOULD SEEM TO RELATE PRIMARILY TO SERVICES THAT ARE PERFORMED PERSONALLY BY THE CONTRACTOR AND NOT SERVICES PERFORMED BY OTHERS EMPLOYED BY A CONTRACTOR OR EVEN BY SUCH OTHERS AND THE CONTRACTOR JOINTLY.

IN VIEW OF THE FOREGOING, THE CONCLUSION IS REQUIRED THAT THE CONTRACT HERE INVOLVED IS NOT ONE FOR PERSONAL SERVICES BUT, RATHER, ONE FOR THE PERFORMANCE OF A SERVICE NONPERSONAL IN NATURE. HENCE, THE EXECUTION OF THE CONTRACT WITHOUT COMPETITION WAS CONTRARY TO LAW AND MAY NOT BE REGARDED AS HAVING ANY BINDING EFFECT UPON THE UNITED STATES. HOWEVER, IN VIEW OF THE APPARENT MISUNDERSTANDING BY THE CONTRACTING OFFICER AS TO WHAT CONSTITUTES PERSONAL SERVICES WITHIN THE MEANING OF SECTION 3709, REVISED STATUTES, AS AMENDED, AND HAVING REGARD FOR THE FACT THAT THE SERVICES HAVE BEEN PERFORMED BY THE CONTRACTOR AND THE GOVERNMENT HAS RECEIVED THE BENEFIT THEREOF, THE CONTRACTOR MAY BE PAID THE REASONABLE VALUE OF THE SERVICES UPON A QUANTUM MERUIT BASIS. THIS VALUE, IN THE ABSENCE OF ANY OTHER EVIDENCE TO THE CONTRARY, MAY BE FAIRLY ASSUMED TO BE THAT STIPULATED IN THE PURCHASE ORDER.

ACCORDINGLY, YOU ARE ADVISED THAT THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.