B-111298, SEPTEMBER 8, 1952, 32 COMP. GEN. 127

B-111298: Sep 8, 1952

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A CONTRACT FOR STENOGRAPHIC REPORTING SERVICES WHICH IN FACT IS A CONTRACT FOR STENOGRAPHIC AND TYPING WORK TO BE PERFORMED UNDER GOVERNMENT SUPERVISION AND WHICH WAS ENTERED INTO FOR THE PURPOSE OF OVERCOMING DIFFICULTIES OCCASIONED BY A SHORTAGE OF FUNDS AND PERSONNEL IS A CONTRACT FOR THE PERFORMANCE OF PERSONAL SERVICES REQUIRED TO BE PERFORMED BY GOVERNMENT PERSONNEL. 1952: REFERENCE IS MADE TO YOUR LETTER OF JULY 18. IT IS STATED THAT ACTUALLY STENOGRAPHIC OR SECRETARIAL SERVICE WAS SECURED AND NOT STENOGRAPHIC REPORTING SERVICE AS SHOWN BY THE PURCHASE ORDER. WHICH ORDER WAS ISSUED ON JUNE 26. IT IS REPRESENTED. THAT DURING THE LAST MONTH OF THE 1952 FISCAL YEAR IT WAS NECESSARY TO PROCESS A VOLUME OF A CERTAIN TYPE OF WORK REPRESENTING OVER 50 PERCENT OF THE ANNUAL WORK LOAD THEREOF.

B-111298, SEPTEMBER 8, 1952, 32 COMP. GEN. 127

PERSONAL SERVICES - PRIVATE CONTRACT V. GOVERNMENT PERSONNEL - LACK OF PERSONNEL, FUNDS, ETC. A CONTRACT FOR STENOGRAPHIC REPORTING SERVICES WHICH IN FACT IS A CONTRACT FOR STENOGRAPHIC AND TYPING WORK TO BE PERFORMED UNDER GOVERNMENT SUPERVISION AND WHICH WAS ENTERED INTO FOR THE PURPOSE OF OVERCOMING DIFFICULTIES OCCASIONED BY A SHORTAGE OF FUNDS AND PERSONNEL IS A CONTRACT FOR THE PERFORMANCE OF PERSONAL SERVICES REQUIRED TO BE PERFORMED BY GOVERNMENT PERSONNEL, AND THEREFORE, PAYMENT MAY NOT BE MADE FOR PERSONAL SERVICES PERFORMED UNDER SAID CONTRACT.

COMPTROLLER GENERAL WARREN TO W. R. WYNNE, DEPARTMENT OF COMMERCE, SEPTEMBER 8, 1952:

REFERENCE IS MADE TO YOUR LETTER OF JULY 18, 1952, FORWARDED HERE BY A LETTER OF AUGUST 8, 1952, FROM THE CHIEF, ACCOUNTING DIVISION, REQUESTING DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE VOUCHER THEREWITH TRANSMITTED IN FAVOR OF MRS. RUTH W. PATTERSON FOR $140, COVERING ALL LABOR, MATERIAL, AND EQUIPMENT FOR STENOGRAPHIC REPORTING SERVICE (80 HOURS AT $1.75 PER HOUR). IT IS STATED THAT ACTUALLY STENOGRAPHIC OR SECRETARIAL SERVICE WAS SECURED AND NOT STENOGRAPHIC REPORTING SERVICE AS SHOWN BY THE PURCHASE ORDER, WHICH ORDER WAS ISSUED ON JUNE 26, 1952, SUBSEQUENT TO THE PERFORMANCE OF SAID SERVICE, IN CONFIRMATION OF AN INFORMAL AGREEMENT.

IT IS REPRESENTED, IN SUPPORT OF THE SERVICE SECURED, THAT DURING THE LAST MONTH OF THE 1952 FISCAL YEAR IT WAS NECESSARY TO PROCESS A VOLUME OF A CERTAIN TYPE OF WORK REPRESENTING OVER 50 PERCENT OF THE ANNUAL WORK LOAD THEREOF; THAT THE SECRETARIAL PERSONNEL NECESSARY TO COMPLETE THE REQUIRED WORK ON TIME WAS NOT AVAILABLE; THAT SAID PERSONNEL LEFT GOVERNMENT SERVICE AND RECEIVED LARGE LUMP-SUM PAYMENTS FOR ANNUAL LEAVE THUS DEPLETING FUNDS AND MAKING IT IMPOSSIBLE TO FILL A SINGLE SECRETARIAL VACANCY; AND FURTHER, THAT IT WAS MORE ECONOMICAL TO SECURE THE SECRETARIAL SERVICE IN SAID MANNER THAN BY SECURING SUCH ASSISTANCE BY TEMPORARY APPOINTMENT FOR A PERIOD OF 2 WEEKS SINCE IT IS STATED THERE IS NO INTEREST BY PROSPECTIVE EMPLOYEES IN SHORT EMPLOYMENT. THE SUBMITTED PAPERS SHOW THAT EVEN THOUGH TEMPORARY EMPLOYEES COULD HAVE BEEN SECURED FROM REGISTERS NO PERSONAL SERVICE MONEY WAS AVAILABLE THEREFOR.

IT IS THE GENERAL RULE THAT PERSONAL SERVICES NECESSARY IN CONNECTION WITH GOVERNMENTAL ACTIVITIES ARE FOR PERFORMANCE BY REGULAR EMPLOYEES OF THE GOVERNMENT WHO ARE RESPONSIBLE TO THE GOVERNMENT AND SUBJECT TO GOVERNMENT SUPERVISION. 6 COMP. GEN. 140; 11 ID. 252; 12 ID. 516; 16 ID. 1055; 17 ID. 52; 21 ID. 388. THERE HAVE BEEN INSTANCES, HOWEVER, WHERE, BY REASON OF THE NATURE OF THE WORK AND THE EXISTENCE OF THE EMERGENCY CONDITIONS NOT PERMITTING ITS PERFORMANCE IN THE USUAL MANNER, ACCOMPLISHMENT THEREOF BY MEANS OF OUTSIDE CONTRACTS HAS BEEN SANCTIONED. 11 COMP. GEN. 99; 19 ID. 523; 21 ID. 486; 22 ID. 700. GENERALLY HOWEVER, SUCH INSTANCES HAVE BEEN CONFINED TO SPECIAL QUALIFICATIONS, SPECIAL EQUIPMENT, AND SIMILAR CIRCUMSTANCES.

WHILE THE VOUCHER PURPORTS TO COVER STENOGRAPHIC REPORTING SERVICE AND THE FURNISHING OF ALL LABOR, MATERIALS, AND EQUIPMENT, IT IS STATED IN YOUR LETTER THAT SECRETARIAL SERVICE WAS ALL THAT WAS FURNISHED. THAT STATEMENT FINDS SUPPORT IN THE PAPERS ACCOMPANYING YOUR SUBMISSION. FURTHER, WHILE NOT SO STATED, IT IS REASONABLE TO PRESUME FROM THE RECORD THAT STENOGRAPHIC AND TYPING WORK CONSTITUTED THE SERVICE FURNISHED AND THAT THE WORK WAS PERFORMED UNDER GOVERNMENT SUPERVISION. IT IS OBVIOUS, FROM THE PAPERS ACCOMPANYING YOUR LETTER, THAT THE SERVICES HERE INVOLVED WERE OBTAINED UNDER THE GUISE OF A NON PERSONAL SERVICE CONTRACT WHEN IN FACT THE SERVICES WERE PURELY PERSONAL IN CHARACTER FOR WHICH FUNDS (FOR PERSONAL SERVICES AS SUCH) WERE NOT AVAILABLE--- AN ATTEMPT, APPARENTLY, TO DO INDIRECTLY THAT WHICH COULD NOT BE DONE DIRECTLY. THUS, SINCE THE SERVICE RENDERED HERE WAS PERSONAL THE CASE IS NOT TAKEN OUT OF THE GENERAL RULE SET FORTH ABOVE MERELY BECAUSE OF THE MEANS EMPLOYED IN OBTAINING THE SERVICES.

IN VIEW OF THE FOREGOING IT MUST BE CONCLUDED ON THE PRESENT RECORD THAT PAYMENT ON THE VOUCHER, WHICH VOUCHER IS BEING RETAINED HERE, IS NOT AUTHORIZED.