B-143437, JUL. 21, 1960

B-143437: Jul 21, 1960

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HE FURTHER STATES THAT MANY OF THE SPECIALISTS REQUIRE EYEGLASSES WHICH THEY HAVE IN THE PAST BEEN ABLE TO USE WHILE OPERATING THIS SPECIAL EQUIPMENT. THAT YOUR AGENCY IS REPLACING THIS EQUIPMENT WITH NEW MACHINERY OF IMPROVED DESIGN WHICH CANNOT BE USED EFFECTIVELY WHILE THE OPERATOR IS WEARING CONVENTIONAL EYEGLASSES. IS CREATING NEW CONDITIONS WHICH ARE MAKING THESE SEASONED EMPLOYEES. WHO WERE FULLY QUALIFIED WHEN ASSIGNED ORIGINALLY TO THEIR SPECIALIZED DUTIES. SINCE CONTACT LENSES ARE VERY COSTLY IN COMPARISON WITH ORDINARY EYEGLASSES. YET WITHOUT SUCH LENSES THESE EMPLOYEES WILL SOON BECOME SO INEFFECTIVE AS NOT TO BE ABLE TO CONTINUE IN THEIR SPECIALIZATIONS. IT IS FELT THAT THE AGENCY COULD JUSTIFIABLY PURCHASE THE LENSES AS AN EXPENSE NECESSARY TO THE EFFICIENT FULFILLMENT OF ITS MISSION.

B-143437, JUL. 21, 1960

TO THE DIRECTOR, CENTRAL INTELLIGENCE AGENCY:

A LETTER DATED JULY 2, 1960, FROM THE ACTING DIRECTOR, CENTRAL INTELLIGENCE AGENCY, CONCERNS THE USE OF APPROPRIATE FUNDS TO FURNISH CONTACT LENSES FOR CERTAIN EMPLOYEES OF YOUR AGENCY.

THE ACTING DIRECTOR STATES THAT THE CENTRAL INTELLIGENCE AGENCY EMPLOYS A NUMBER OF HIGHLY TRAINED SPECIALISTS WHO USE EQUIPMENT IN THEIR WORK WHICH REQUIRES EITHER NORMAL OR CORRECTED-TO-NORMAL VISION. HE FURTHER STATES THAT MANY OF THE SPECIALISTS REQUIRE EYEGLASSES WHICH THEY HAVE IN THE PAST BEEN ABLE TO USE WHILE OPERATING THIS SPECIAL EQUIPMENT, BUT THAT YOUR AGENCY IS REPLACING THIS EQUIPMENT WITH NEW MACHINERY OF IMPROVED DESIGN WHICH CANNOT BE USED EFFECTIVELY WHILE THE OPERATOR IS WEARING CONVENTIONAL EYEGLASSES.

THE ACTING DIRECTOR ADVISES THAT THE CENTRAL INTELLIGENCE AGENCY HAS EXPENDED A GREAT DEAL OF TIME AND MONEY IN THE TRAINING OF THESE SPECIALISTS AND DOES NOT WISH TO LOSE THEIR SERVICES OR IMPEDE THEIR EFFICIENCY. HE REPORTS THAT IT HAS BEEN DETERMINED BY A COMPREHENSIVE STUDY OF THE PROGRAM THAT THOSE SPECIALISTS REQUIRING VISION CORRECTIVES COULD WEAR CONTACT LENSES SUCCESSFULLY IN OPERATING THE NEW EQUIPMENT. THE ACTING DIRECTOR'S LETTER CONTINUES, IN PART:

"THE AGENCY'S CONTINUING REPLACEMENT OF ITS OLD EQUIPMENT WITH THE NEW, MORE EFFICIENT APPARATUS, CAPABLE OF PRODUCING A FINER QUALITY OF WORK, IS CREATING NEW CONDITIONS WHICH ARE MAKING THESE SEASONED EMPLOYEES, WHO WERE FULLY QUALIFIED WHEN ASSIGNED ORIGINALLY TO THEIR SPECIALIZED DUTIES, INCREASINGLY UNABLE TO FULFILL THEIR ASSIGNMENTS. TO REQUIRE THESE EMPLOYEES TO PURCHASE CONTACT LENSES WOULD PLACE AN UNDUE FINANCIAL BURDEN ON THEM, SINCE CONTACT LENSES ARE VERY COSTLY IN COMPARISON WITH ORDINARY EYEGLASSES. YET WITHOUT SUCH LENSES THESE EMPLOYEES WILL SOON BECOME SO INEFFECTIVE AS NOT TO BE ABLE TO CONTINUE IN THEIR SPECIALIZATIONS.

"IN SHORT, SINCE THE OPERATION OF THIS NEW SPECIAL EQUIPMENT HAS BECOME A NECESSARY PART OF THE DUTIES OF THESE EXPERTS WHICH CANNOT BE FULFILLED WHILE WEARING ORDINARY EYEGLASSES, THE AGENCY'S MISSION IN THIS SPECIAL AREA CAN NO LONGER BE ACCOMPLISHED EXPEDITIOUSLY AND SATISFACTORILY WITHOUT FITTING THESE EMPLOYEES WITH CONTACT LENSES. THEREFORE, IT IS FELT THAT THE AGENCY COULD JUSTIFIABLY PURCHASE THE LENSES AS AN EXPENSE NECESSARY TO THE EFFICIENT FULFILLMENT OF ITS MISSION.

THE ACTING DIRECTOR IS OF THE VIEW THAT THE SPECIAL CIRCUMSTANCES MAKING CONTACT LENSES NECESSARY IN THIS CASE ARE UNUSUAL AND DO NOT DESCRIBE A SITUATION IN WHICH THE EMPLOYEE CAN BE EXPECTED TO PROVIDE HIS OWN EQUIPMENT AS USUAL AND NECESSARY FURNISHINGS TO ENABLE HIM TO PERFORM THE REGULAR DUTIES OF THE POSITION FOR WHICH HE WAS ENGAGED. HE CITES IN CONNECTION WITH THE MATTER 3 COMP. GEN. 433 AS REAFFIRMED IN PRINCIPLE BY 32 COMP. GEN. 229.

IN VIEW OF THE ABOVE FACTS OUR DECISION IS REQUESTED FIRST, AS TO WHETHER YOUR AGENCY CAN PURCHASE FROM APPROPRIATED FUNDS CONTACT LENSES FOR EXPERTS WHO ARE ASSIGNED TO OPERATE THIS SPECIAL EQUIPMENT, AND SECOND, WHETHER ANY NEW EMPLOYEES TRAINED FOR THE SPECIALIZED WORK MAY ALSO BE SUPPLIED WITH CONTACT LENSES AT GOVERNMENT EXPENSE.

AS INDICATED IN THE ACTING DIRECTOR'S LETTER WE REAFFIRMED, IN PRINCIPLE, IN 32 COMP. GEN. 229 THE FOLLOWING LANGUAGE APPEARING IN 3 COMP. GEN. 433:

"IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY FOR THE PURCHASE OF PERSONAL EQUIPMENT, PARTICULARLY WEARING APPAREL OR PARTS THEREOF, THE FIRST QUESTION FOR CONSIDERATION IN CONNECTION WITH A PROPOSED PURCHASE OF SUCH EQUIPMENT IS WHETHER THE OBJECT FOR WHICH THE APPROPRIATION INVOLVED WAS MADE CAN BE ACCOMPLISHED AS EXPEDITIOUSLY AND SATISFACTORILY FROM THE GOVERNMENT'S STANDPOINT, WITHOUT SUCH EQUIPMENT. IF IT BE DETERMINED THAT USE OF THE EQUIPMENT IS NECESSARY IN THE ACCOMPLISHMENT OF THE PURPOSES OF THE APPROPRIATION, THE NEXT QUESTION TO BE CONSIDERED IS WHETHER THE EQUIPMENT IS SUCH AS THE EMPLOYEE REASONABLY COULD BE REQUIRED TO FURNISH AS PART OF THE PERSONAL EQUIPMENT NECESSARY TO ENABLE HIM TO PERFORM THE REGULAR DUTIES OF THE POSITION TO WHICH HE WAS APPOINTED OR FOR WHICH HIS SERVICES WERE ENGAGED. UNLESS THE ANSWER TO BOTH OF THESE QUESTIONS IS IN THE NEGATIVE, PUBLIC FUNDS CANNOT BE USED FOR THE PURCHASE. DETERMINING THE FIRST OF THESE QUESTIONS THERE IS FOR CONSIDERATION WHETHER THE GOVERNMENT OR THE EMPLOYEE RECEIVES THE PRINCIPAL BENEFIT RESULTING FROM USE OF THE EQUIPMENT AND WHETHER AN EMPLOYEE REASONABLY COULD BE REQUIRED TO PERFORM THE SERVICE WITHOUT THE EQUIPMENT. CONNECTION WITH THE SECOND QUESTION THE POINTS ORDINARILY INVOLVED ARE WHETHER THE EQUIPMENT IS TO BE USED BY THE EMPLOYEE IN CONNECTION WITH HIS REGULAR DUTIES OR ONLY IN EMERGENCIES OR AT INFREQUENT INTERVALS AND WHETHER SUCH EQUIPMENT IS ASSIGNED TO AN EMPLOYEE FOR INDIVIDUAL USE OR IS INTENDED FOR LAND ACTUALLY TO BE USED BY DIFFERENT EMPLOYEES.

APPLYING THE TESTS OR CRITERIA SET FORTH IN THE ABOVE-QUOTED LANGUAGE, IT IS CLEAR FROM THE FACTS IN THE ACTING DIRECTOR'S LETTER THAT THE WORK INVOLVED HERE CAN BE ACCOMPLISHED EXPEDITIOUSLY AND SATISFACTORILY FROM THE GOVERNMENT'S STANDPOINT WITHOUT CONTACT LENSES IF THE EMPLOYEES DOING THE WORK HAVE NORMAL VISION WITHOUT EYEGLASSES, AND THAT SUCH EMPLOYEES REASONABLY COULD BE REQUIRED TO PERFORM THE WORK INVOLVED WITHOUT CONTACT LENSES. MOREOVER, THE CONTACT LENSES APPARENTLY ARE TO BE USED BY THE EMPLOYEE IN HIS REGULAR DUTIES, AS DISTINGUISHED FROM EMERGENCIES OR AT INFREQUENT INTERVALS, AND APPARENTLY WILL BE ASSIGNED TO THE EMPLOYEE FOR HIS INDIVIDUAL USE BOTH ON AND OFF THE JOB AND WILL NOT AND, OF COURSE, CANNOT BE USED BY OTHER EMPLOYEES. IT IS OUR VIEW THAT UNDER SUCH CIRCUMSTANCES CONTACT LENSES ARE EQUIPMENT SUCH AS AN EMPLOYEE COULD REASONABLY BE REQUIRED TO FURNISH AS PART OF THE PERSONAL EQUIPMENT NECESSARY TO ENABLE HIM TO PERFORM THE REGULAR DUTIES OF THE POSITION FOR WHICH HIS SERVICES WERE ENGAGED, PARTICULARLY WHEN IT IS KNOWN BEFOREHAND (I.E., BEFORE THE PERSON IS EMPLOYED OR ENGAGED FOR SUCH DUTIES) THAT THE EQUIPMENT HE IS TO OPERATE CANNOT BE USED EFFECTIVELY BY A PERSON WEARING CONVENTIONAL EYEGLASSES BUT ONLY BY A PERSON WHOSE VISION IS NORMAL WITHOUT GLASSES OR A PERSON WHO WEARS CONTACT LENSES.

IN VIEW, HOWEVER, OF THE SPECIAL FACTS AND CIRCUMSTANCES IN THE INSTANT CASE AND TAKING INTO CONSIDERATION THE FACT THAT YOUR AGENCY HAS EXPENDED A GREAT DEAL OF TIME AND MONEY IN TRAINING THESE SPECIALISTS, WE WOULD NOT OBJECT TO THE USE OF APPROPRIATED FUNDS TO PURCHASE THE INITIAL SET OF CONTACT LENSES FOR THOSE HIGHLY TRAINED SPECIALISTS (I.E., THE "SEASONED EMPLOYEES") WHO WERE FULLY QUALIFIED WHEN ASSIGNED ORIGINALLY TO THEIR SPECIALIZED DUTIES. THE FIRST QUESTION PRESENTED IS ANSWERED ACCORDINGLY.

AS TO THE SECOND QUESTION, IN VIEW OF WHAT WE HAVE SAID ABOVE, NEW EMPLOYEES WHO ARE ENGAGED TO BE TRAINED FOR THE SPECIALIZED WORK INVOLVED HERE MAY NOT BE SUPPLIED WITH CONTACT LENSES AT GOVERNMENT EXPENSE. INDICATED ABOVE, CONTACT LENSES WOULD APPEAR TO BE EQUIPMENT THAT NEW EMPLOYEES WHO REQUIRE VISION CORRECTIVES COULD REASONABLY BE REQUIRED TO FURNISH AS PART OF THE PERSONAL EQUIPMENT NECESSARY TO ENABLE THEM TO QUALIFY FOR, AND PERFORM THE REGULAR DUTIES OF, THE POSITION FOR WHICH THEIR SERVICES WERE ENGAGED. THE SECOND QUESTION IS ANSWERED ACCORDINGLY.

ALSO, IT IS OUR VIEW THAT IF YOU DESIRE TO PROVIDE REPLACEMENT OF CONTACT LENSES FURNISHED TO YOUR PRESENT EMPLOYEES OR TO SUPPLY CONTACT LENSES TO NEW EMPLOYEES, SPECIFIC STATUTORY AUTHORITY SHOULD BE OBTAINED.