B-116883, OCTOBER 6, 1953, 33 COMP. GEN. 143

B-116883, OCTOBER 6, 1953, 33 COMP. GEN. 143

PERSONAL SERVICES - PRIVATE CONTRACT V. GOVERNMENT PERSONNEL - SURVEY OF GOVERNMENT OPERATIONS IN VIEW OF THE BROAD PROVISIONS OF SECTION 1 OF THE NATIONAL HOUSING ACT, WHICH AUTHORIZE THE COMMISSIONER, FEDERAL HOUSING ADMINISTRATION, TO MAKE SUCH EXPENDITURES AS ARE NECESSARY TO CARRY OUT THE ACT, INCLUDING EXPENDITURES FOR PERSONAL SERVICES, WITHOUT REGARD TO ANY OTHER PROVISIONS OF LAW GOVERNING THE EXPENDITURES OF PUBLIC FUNDS, SERVICES FOR MAKING A MANAGEMENT SURVEY OF THE OPERATIONS OF THE ADMINISTRATION MAY BE PROCURED BY CONTRACT AND INASMUCH AS THE SERVICES INVOLVED ARE OF A TECHNICAL AND PROFESSIONAL NATURE WITHIN THE MEANING OF THE EXCEPTION TO THE ADVERTISING REQUIREMENTS OF SECTION 3709, REVISED STATUTES, ADVERTISING IS NOT REQUIRED AS A PREREQUISITE TO ENGAGING A PARTICULAR INDIVIDUAL TO PERFORM SUCH SERVICES.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, HOUSING AND HOME FINANCE AGENCY, OCTOBER 6, 1953:

THERE HAS BEEN RECEIVED A LETTER DATED AUGUST 31, 1953, FROM THE COMMISSIONER, FEDERAL HOUSING ADMINISTRATION, REQUESTING A DECISION (SEE 28 COMP. GEN. 638) AS TO WHETHER, UNDER THE CIRCUMSTANCES SET THEREIN, IT WOULD BE PROPER TO NEGOTIATE A CONTRACT WITH MAIN AND COMPANY, OR MR. JOSEPH C. HUDSON, A PARTNER OF SUCH COMPANY, FOR MAKING AN ANALYSIS OF THE OPERATIONS OF THE ADMINISTRATION AND FURNISHING TO THE COMMISSIONER A REPORT OF THE FINDINGS AS WELL AS RECOMMENDATIONS OF CHANGES, AMENDMENTS, OR ENTIRELY NEW PROCEDURES.

THE COMMISSIONER STATES THAT, WHILE A SURVEY UNDER THE SUPERVISION OF ITS OWN OFFICIALS UNDOUBTEDLY WOULD BE EFFECTIVE AND FULLY JUSTIFIED FROM THE STANDPOINT OF EXISTING PROCEDURES AND POLICIES, SUCH A SURVEY MIGHT BE LESS PRODUCTIVE OF SUBSTANTIAL ECONOMIES AND SIMPLIFICATION OF PROCEDURES AS COMPARED TO A SURVEY CONDUCTED BY PERSONS NOT CONNECTED WITH THE GOVERNMENT. HE ALSO STATES THAT HE PERSONALLY KNOWS FROM HIS EXPERIENCE IN PRIVATE INDUSTRY THAT MR. HUDSON IS EMINENTLY QUALIFIED BY EXPERIENCE AND TRAINING TO PERFORM SUCH A STUDY AND ANALYSIS AND THEREFORE DESIRES TO ENTER INTO A CONTRACT WITH EITHER MR. HUDSON OR THE FIRM OF MAIN AND COMPANY FOR HIS SERVICES, WITHOUT ADVERTISING FOR BIDS.

IN VIEW OF THE BROAD PROVISIONS OF SECTION 1 OF THE NATIONAL HOUSING ACT, 48 STAT. 1246, AS AMENDED, 12 U.S.C. 1702, AUTHORIZING THE COMMISSIONER TO MAKE SUCH EXPENDITURES AS ARE NECESSARY TO CARRY OUT THE PROVISIONS OF THE ACT, INCLUDING EXPENDITURES FOR PERSONAL SERVICES, WITHOUT REGARD TO ANY OTHER PROVISIONS OF LAW GOVERNING THE EXPENDITURES OF PUBLIC FUNDS AND, SINCE HE SPECIFICALLY HAS CONCLUDED THAT AN EXPENDITURE FOR THE PURPOSE OF OBTAINING THE TYPE OF SERVICES DISCUSSED ABOVE IS A NECESSARY EXPENDITURE TO CARRY OUT THE PROVISIONS OF THAT ACT, THIS OFFICE PERCEIVES NO OBJECTION TO THE PROCUREMENT OF THE SERVICES IN QUESTION. THE BROAD AUTHORITY CONFERRED BY THE NATIONAL HOUSING ACT, HOWEVER, APPEARS TO BE RESTRICTED WITH RESPECT TO ,ADMINISTRATIVE TRANSACTIONS" BY THE PROVISIONS OF SECTION 9 (C) OF THE ACT OF AUGUST 2, 1946, 60 STAT. 809, WHICH MAKES SECTION 3709, REVISED STATUTES, 41 U.S.C. 5, APPLICABLE TO "WHOLLY OWNED GOVERNMENT CORPORATIONS," THE FEDERAL HOUSING ADMINISTRATION HAVING BEEN DESIGNATED AS A "WHOLLY OWNED GOVERNMENT CORPORATION" FOR FINANCIAL CONTROL PURPOSES. SEE SECTION 101 OF THE GOVERNMENT CORPORATION CONTROL ACT, AS AMENDED, 31 U.S.C. 846.

SECTION 3709, REVISED STATUTES, 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 (1) WHEN THE AMOUNT INVOLVED IN ANY ONE CASE DOES NOT EXCEED $500, (2) WHEN THE PUBLIC EXIGENCIES REQUIRE THE IMMEDIATE DELIVERY OF THE ARTICLES OR PERFORMANCE OF THE SERVICE, (3) WHEN ONLY ONE SOURCE OF SUPPLY IS AVAILABLE AND THE GOVERNMENT PURCHASING OR CONTRACTING OFFICER SHALL SO CERTIFY OR (4) WHEN THE SERVICES ARE REQUIRED TO BE PERFORMED BY THE CONTRACTOR IN PERSON AND ARE (A) OF A TECHNICAL AND PROFESSIONAL NATURE OR (B) UNDER GOVERNMENT SUPERVISION AND PAID FOR ON A TIME BASIS.

IN VIEW THEREOF AND SINCE IT APPEARS, AS STATED BY THE COMMISSIONER, THAT THE SERVICES INVOLVED WILL BE OF A TECHNICAL AND PROFESSIONAL NATURE WITHIN THE MEANING OF EXCEPTION 4 OF THE ABOVE STATUTE, I HAVE TO ADVISE THAT ADVERTISING WOULD NOT BE REQUIRED AS A PREREQUISITE TO ENGAGING MR. HUDSON PERSONALLY TO PERFORM THE SERVICES. SEE 14 COMP. GEN. 909.