B-125012, OCTOBER 26, 1956, 36 COMP. GEN. 338

B-125012: Oct 26, 1956

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PROVIDED THERE IS A DETERMINATION THAT THE SERVICES ARE ESSENTIAL TO THE FUNCTIONS OF THE BOARD AND IN THE PUBLIC INTEREST. 1956: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 10. THE PROVISIONS OF 5 U.S.C. 55A ARE A CODIFICATION OF SECTION 15 OF THE ACT OF AUGUST 2. UNLESS OTHER RATES ARE SPECIFICALLY PROVIDED IN THE APPROPRIATION OR OTHER LAW) AND. IS CONTINGENT UPON THE PASSAGE OF AN APPROPRIATION OR OTHER ACT GRANTING SPECIFIC AUTHORITY TO THE HEAD OF THE PARTICULAR DEPARTMENT OR AGENCY CONCERNED. THE UTILIZATION OF THE AUTHORITY SO GRANTED IS INTENDED FOR AND. IS LIMITED TO THE FURTHERANCE OF AUTHORIZED AGENCY FUNCTIONS. THE ADMINISTRATOR OF GENERAL SERVICES AND THE AIR FORCE FOR THE DEPARTMENT OF DEFENSE WERE NAMED AS INTERVENORS.

B-125012, OCTOBER 26, 1956, 36 COMP. GEN. 338

EXPERTS AND CONSULTANTS - EMPLOYMENT - STATUTORY AUTHORITY - ADMINISTRATIVE JUSTIFICATION A NEGOTIATED CONTRACT WITH A CONSULTING FIRM TO FURNISH THE GOVERNMENT INDEPENDENT DOMESTIC AIR CARRIER RATE INFORMATION MAY BE EXECUTED BY THE CIVIL AERONAUTICS BOARD IN ACCORDANCE WITH THE SPECIFIC AVAILABILITY OF APPROPRIATIONS FOR EXPENSES OF PROCUREMENT OF EXPERT AND CONSULTANT SERVICES PURSUANT TO SECTION 15 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AND PROVIDED THERE IS A DETERMINATION THAT THE SERVICES ARE ESSENTIAL TO THE FUNCTIONS OF THE BOARD AND IN THE PUBLIC INTEREST.

TO THE CHAIRMAN, CIVIL AERONAUTICS BOARD, OCTOBER 26, 1956:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 10, 1956, REQUESTING A DECISION AS TO WHETHER A CONTRACT MAY BE NEGOTIATED UNDER THE PROVISIONS OF 5 U.S.C. 55A, WITH A CONSULTING FIRM WITH THE EXPERIENCE IN THE FIELD TO PROVIDE INDEPENDENT EXPERT ADVICE AND TESTIMONY WITH RESPECT TO THE QUESTION OF RATE OF RETURN, IN CONNECTION WITH THE BOARD'S INVESTIGATION OF THE CURRENT LEVEL OF DOMESTIC PASSENGER FARES.

THE PROVISIONS OF 5 U.S.C. 55A ARE A CODIFICATION OF SECTION 15 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 810, AS FOLLOWS:

THE HEAD OF ANY DEPARTMENT, WHEN AUTHORIZED IN AN APPROPRIATION OR OTHER ACT, MAY PROCURE THE TEMPORARY (NOT IN EXCESS OF ONE YEAR) OR INTERMITTENT SERVICES OF EXPERTS OR CONSULTANTS OR ORGANIZATIONS THEREOF, INCLUDING STENOGRAPHIC REPORTING SERVICES, BY CONTRACT, AND IN SUCH CASES SUCH SERVICE SHALL BE WITHOUT REGARD TO THE CIVIL-SERVICE AND CLASSIFICATION LAWS (BUT AS TO AGENCIES SUBJECT TO SECTIONS 661 663, 664-669, 670-672, 673 AND 674 OF THIS TITLE AT RATES NOT IN EXCESS OF THE PER DIEM EQUIVALENT OF THE HIGHEST RATE PAYABLE UNDER SAID SECTIONS, UNLESS OTHER RATES ARE SPECIFICALLY PROVIDED IN THE APPROPRIATION OR OTHER LAW) AND, EXCEPT IN THE CASE OF STENOGRAPHIC REPORTING SERVICES BY ORGANIZATIONS, WITHOUT REGARD TO SECTION 5 OF TITLE 41.

THIS STATUTE CONSTITUTES THE BASIC GENERAL AUTHORITY TO PROCURE BY CONTRACT, WITHOUT ADVERTISING, THE SERVICES OF INDIVIDUALS AND ORGANIZATIONS OF EXPERTS AND CONSULTANTS. ITS OPERATIVE EFFECT, BY ITS TERMS, IS CONTINGENT UPON THE PASSAGE OF AN APPROPRIATION OR OTHER ACT GRANTING SPECIFIC AUTHORITY TO THE HEAD OF THE PARTICULAR DEPARTMENT OR AGENCY CONCERNED. THE UTILIZATION OF THE AUTHORITY SO GRANTED IS INTENDED FOR AND, OF COURSE, IS LIMITED TO THE FURTHERANCE OF AUTHORIZED AGENCY FUNCTIONS. FURTHERMORE, WHERE THE SERVICES REQUIRED WOULD ORDINARILY FALL WITHIN THE SCOPE OF WORK GENERALLY PERFORMED BY OFFICERS AND EMPLOYEES OF THE AGENCY OR OF OTHER GOVERNMENT AGENCIES, THE DETERMINATION TO INVOKE SUCH CONTRACTING AUTHORITY SHOULD BE BASED UPON COGENT CONSIDERATIONS OF THE NECESSITY, EFFICIENCY, AND ECONOMY OF THE CONTRACT PROCUREMENT. CF. 26 COMP. GEN. 188; ID. 422; 31 ID. 372; 32 ID. 427; 33 ID. 143; AND ID. 170. SEE ALSO HOUSE REPORT NO. 2894, 84TH CONGRESS, EMPLOYMENT AND UTILIZATION OF EXPERTS AND CONSULTANTS.

IN THE EVENT A PROPOSED CONTRACT OR AGREEMENT FOR THE SERVICES OF EXPERTS OR CONSULTANTS INVOLVES THE "COLLECTION OF INFORMATION ON IDENTICAL ITEMS BY OR FOR THE CONTRACTOR FROM TEN OR MORE RESPONDENTS," THE APPLICABLE "CLEARANCE" AND OTHER REQUIREMENTS OF BUREAU OF THE BUDGET CIRCULAR NO. A- 40, ISSUED OCTOBER 24, 1951, PURSUANT TO THE PROVISIONS OF THE FEDERAL REPORTS ACT OF 1942, 56 STAT. 1078, 5 U.S.C. 139-139F, SHOULD BE COMPLIED WITH. IN THIS CONNECTION, SEE HOUSE REPORT NO. 2913, 84TH CONGRESS PUBLIC OPINION SURVEY TO INFLUENCE POSTAL RATE LEGISLATION.

IT APPEARS THAT PURSUANT TO ORDER NO. E-10279, ADOPTED MAY 10, 1956, THE CIVIL AERONAUTICS BOARD INSTITUTED AN INVESTIGATION INTO THE PASSENGER FARE LEVEL OF THE DOMESTIC TRUNKLINE CARRIERS IN ITS DOCKET NO. 8008. SUBSEQUENTLY, THE LOCAL SERVICE CARRIERS, THE AIR TRANSPORT ASSOCIATION, THE ADMINISTRATOR OF GENERAL SERVICES AND THE AIR FORCE FOR THE DEPARTMENT OF DEFENSE WERE NAMED AS INTERVENORS. WHILE THE PREHEARING CONFERENCE IN THIS PROCEEDING WAS HELD ON SEPTEMBER 5 AND 6, 1956, THE HEARING ITSELF IS SCHEDULED TO COMMENCE ON MARCH 18, 1957. IT IS UNDERSTOOD THAT THE CARRIERS HAVE RETAINED A NUMBER OF INDEPENDENT EXPERTS AS WITNESSES FOR THE INDUSTRY ON THE SUBJECT OF RATE OF RETURN, WHICH INVOLVES MANY COMPLEX CONSIDERATIONS AND A VARIETY OF POSSIBLE APPROACHES IN REACHING AN ULTIMATE CONCLUSION WITH RESPECT THERETO. IN VIEW THEREOF, THE BOARD HAS CONCLUDED THAT IT WOULD BE IN THE PUBLIC INTEREST TO CONTRACT FOR THE SERVICES OF A CONSULTING FIRM WITH EXPERIENCE IN THE FIELD TO PROVIDE "INDEPENDENT" EXPERT ADVICE AND TESTIMONY WITH RESPECT TO THIS PARTICULAR QUESTION OF RATE OF RETURN. THE TERM "INDEPENDENT" IS STRESSED BECAUSE OF THE BOARD'S DESIRE TO OBTAIN THE BENEFIT OF INDEPENDENT CONCLUSIONS OF AN EXPERT FIRM IN THE PUBLIC UTILITIES REGULATORY FIELD. THE WORK CONTEMPLATED BY THE CONTRACTING FIRM IS AS FOLLOWS:

1. PREPARE A REPORT RECOMMENDING THE FAIR RETURN OF THE CARRIERS INVOLVED IN THE PROCEEDINGS;

2. CONSULT AND ADVISE IN THE PREPARATION OF THE BOARD'S BUREAU COUNSEL'S DIRECT AND REBUTTAL EXHIBITS RELATING TO FAIR RETURN;

3. ASSIST IN THE ANALYSIS OF THE CARRIERS' DIRECT AND REBUTTAL EXHIBITS RELATING TO FAIR RETURN, AND

4. TESTIFY IN THE PROCEEDING AND SUBMIT TO CROSS EXAMINATION THEREON TO SUCH EXTENT AS MAY BE DESIRABLE IN CONNECTION WITH THE RATE OF RETURN QUESTION.

IN THE BOARD'S ORDER NO. E-10488, ADOPTED JULY 27, 1956, ( DOCKET NO. 8008), IT IS POINTED OUT THAT THE PURPOSE OF THIS INVESTIGATION IS TO EXPLORE INTO THE LEVEL OF EARNINGS FOR EACH OF THE RESPONDENTS TO DETERMINE WHETHER, IN THE LIGHT OF SUCH EARNING LEVELS, THE PUBLIC IS, IN GENERAL, BEING CHARGED TOO MUCH OR TOO LITTLE AND, IF SO, TO TAKE SUCH ACROSS-THE-BOARD ACTION AS WOULD BRING THE GENERAL LEVEL OF FARES AND CHARGES IN LINE WITH THE LEVEL OF EARNINGS DETERMINED TO BE REASONABLE, IT IS UNDERSTOOD THAT IN VIEW OF THE MAGNITUDE OF SUCH AN UNDERTAKING--- THE FIRST OF ITS KIND IN THE HISTORY OF THE BOARD--- AND SINCE THE MATERIAL ADDUCED THEREFROM WILL FORM THE BASIS OF FUTURE DELIBERATIONS WITH RESPECT TO PASSENGER FARE LEVELS ON AN INDUSTRY-WIDE SCALE, IT IS THE BOARD'S OPINION THAT THE EMPLOYMENT OF INDEPENDENT EXPERTS WILL PROVE TO BE OF INESTIMABLE VALUE AND IN THE BEST INTEREST OF THE PUBLIC.

YOUR LETTER STATES THAT THE PROPOSED CONTRACT COSTS, ESTIMATED AT $15,000, WOULD BE DEFRAYED FROM FUNDS APPROPRIATED FOR SALARIES AND EXPENSES NECESSARY FOR THE GENERAL ADMINISTRATION OF THE DEPARTMENT OF COMMERCE UNDER SECTION 103 OF PUBLIC LAW 604, 84TH CONGRESS, 70 STAT. 314, WHICH ACT EXPRESSLY PROVIDES THAT:

APPROPRIATIONS IN THIS TITLE AVAILABLE FOR SALARIES AND EXPENSES SHALL BE AVAILABLE FOR EXPENSES OF * * * SERVICES AS AUTHORIZED BY SECTION 15 OF THE ACT OF AUGUST 2, 1946 (5 U.S.C. 55A) * * *

ACCORDINGLY, IF IT IS ADMINISTRATIVELY DETERMINED, FOLLOWING THE GENERAL PRINCIPLES REFERRED TO HEREIN, THAT THE EXPERT AND CONSULTANT SERVICES INVOLVED ARE NECESSARY FOR THE PERFORMANCE OF THE BOARD'S FUNCTIONS IN THE MATTER, WE PERCEIVE NO LEGAL OBJECTION TO THE NEGOTIATION OF THE PROPOSED CONTRACT.