B-145358, MAY 15, 1961

B-145358: May 15, 1961

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REQUESTS OUR DECISION CONCERNING THE LEGALITY OF ENTERING INTO CONTRACTS INVOLVING PERSONAL SERVICES IN CONNECTION WITH A SPECIAL ULTRA-HIGH FREQUENCY TELEVISION STUDY WHICH THE FEDERAL COMMUNICATIONS COMMISSION IS PRESENTLY UNDERTAKING. THE APPROPRIATION FOR THE STUDY IS CONTAINED IN TITLE I OF THE INDEPENDENT OFFICES APPROPRIATION ACT. THE LOCATION OF THE STUDY WILL BE NEW YORK CITY. THE STUDY WILL INCLUDE TRANSMISSION OF ULTRA-HIGH FREQUENCY TELEVISION SIGNALS AND PROGRAMS. THE COMMISSION PROPOSES TO SOLICIT PROPOSALS OR BIDS FOR THE OPERATION OF AN RCA TTU - 50A TELEVISION TRANSMITTER WHICH WILL BE LOCATED ON THE EIGHTIETH FLOOR OF THE EMPIRE STATE BUILDING. THE TRANSMITTER IS THE PROPERTY OF THE RADIO CORPORATION OF AMERICA AND WILL BE LEASED TO THE COMMISSION FOR THE DURATION OF THE PROJECT.

B-145358, MAY 15, 1961

TO CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION:

YOUR LETTER OF MARCH 15, 1961 (REFERENCE 3300), REQUESTS OUR DECISION CONCERNING THE LEGALITY OF ENTERING INTO CONTRACTS INVOLVING PERSONAL SERVICES IN CONNECTION WITH A SPECIAL ULTRA-HIGH FREQUENCY TELEVISION STUDY WHICH THE FEDERAL COMMUNICATIONS COMMISSION IS PRESENTLY UNDERTAKING.

THE APPROPRIATION FOR THE STUDY IS CONTAINED IN TITLE I OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1961, 74 STAT. 425, 429, AND READS AS FOLLOWS:

"FEDERAL COMMUNICATIONS COMMISSION SALARIES AND EXPENSES

"FOR NECESSARY EXPENSES IN PERFORMING THE DUTIES OF THE COMMISSION AS AUTHORIZED BY LAW, INCLUDING LAND AND STRUCTURES (NOT TO EXCEED $23,000), SPECIAL COUNSEL FEES, IMPROVEMENT AND CARE OF GROUNDS AND REPAIRS TO BUILDINGS (NOT TO EXCEED $14,600), SERVICES AS AUTHORIZED BY SECTION 15 OF THE ACT OF AUGUST 2, 1946 (5 U.S.C. 55A), NOT TO EXCEED $165,000 FOR EXPENSES OF TRAVEL, AND PURCHASE OF NOT TO EXCEED THREE PASSENGER MOTOR VEHICLES FOR REPLACEMENT ONLY, $13,085,000: PROVIDED, THAT NOT TO EXCEED $2,000,000 OF THIS APPROPRIATION SHALL BE AVAILABLE FOR A SPECIAL ULTRA- HIGH FREQUENCY TELEVISION STUDY AND SHALL REMAIN AVAILABLE UNTIL JUNE 30, 1962.'

THE LOCATION OF THE STUDY WILL BE NEW YORK CITY. THE STUDY WILL INCLUDE TRANSMISSION OF ULTRA-HIGH FREQUENCY TELEVISION SIGNALS AND PROGRAMS, THE RECEPTION OF SUCH PROGRAMS AND SIGNALS UPON SELECTED RECEIVERS AND MEASURING DEVICES AT SELECTED SITES, THE OBSERVATION AND MEASUREMENT OF SUCH SIGNALS AND PROGRAMS, AS RECEIVED AT THE SELECTED SITES, AND THE ANALYSIS, EVALUATION, AND FINAL PRESENTATION OF THE DATA AND CONCLUSIONS PRODUCED BY THE STUDY.

YOU SAY THAT IN CONDUCTING THE TRANSMITTING PHASE OF THE STUDY, THE COMMISSION PROPOSES TO SOLICIT PROPOSALS OR BIDS FOR THE OPERATION OF AN RCA TTU - 50A TELEVISION TRANSMITTER WHICH WILL BE LOCATED ON THE EIGHTIETH FLOOR OF THE EMPIRE STATE BUILDING, NEW YORK, NEW YORK. THE TRANSMITTER IS THE PROPERTY OF THE RADIO CORPORATION OF AMERICA AND WILL BE LEASED TO THE COMMISSION FOR THE DURATION OF THE PROJECT. THE COMMISSION, UNDER ITS LEASE, WILL BE RESPONSIBLE FOR ANY DAMAGE TO THE TRANSMITTER CAUSED BY THE NEGLIGENT OR WILLFUL ACT OF THE GOVERNMENT, ITS SERVANTS, OR AGENTS. THE TRANSMITTER WILL BE INSTALLED BY AUGUST 1, 1961. A TWO MONTH PERIOD OF TESTING WILL FOLLOW AND ACTUAL BROADCASTING WILL BEGIN ON OCTOBER 1, 1961, AND WILL PROBABLY BE CONCLUDED ON JUNE 30, 1962, OR SUCH OTHER DATE AS MAY COINCIDE WITH THE TERMINATION OF THE PROJECT. THE CONTRACTOR WILL BE EXPECTED TO EMPLOY QUALIFIED LICENSED OPERATORS AND TECHNICAL PERSONNEL AND TO COMPLY WITH ANY LABOR REQUIREMENTS OF FEDERAL, STATE, AND LOCAL GOVERNMENTS, AND THE EMPIRE STATE BUILDING CORPORATION. THE STATION IS EXPECTED TO BE ON THE AIR ABOUT FOURTEEN HOURS DAILY, PROBABLY 9:00 A.M. TO 11:00 P.M., TRANSMITTING SCHEDULED PROGRAMS. ADDITIONAL UNSCHEDULED OPERATION MAY BE REQUIRED FOR TESTING AND MAINTENANCE OR FOR SPECIAL MEASUREMENTS PURPOSES IN CONNECTION WITH OTHER PHASES OF THE PROJECT. THE STATION WILL OBTAIN ITS PROGRAMS FROM ONE OR MORE OF THE EXISTING SEVEN TELEVISION STATIONS PRESENTLY LOCATED IN THE EMPIRE STATE BUILDING. THESE PROGRAMS WILL BE FED INTO THE COMMISSION'S TRANSMITTER AND WILL BE BROADCAST ON CHANNEL 31. WITH THE EXCEPTION OF STATION IDENTIFICATIONS, EMERGENCY ANNOUNCEMENTS, AND POSSIBLE TEST MATERIAL, ALL VIDEO AND AUDIO FEED WILL BE OBTAINED FROM THE OTHER STATIONS. THE CONTRACTOR WILL BE RESPONSIBLE FOR KEEPING THE STATION ON THE AIR AND IN COMPLIANCE WITH ALL APPLICABLE F.C.C. RULES AND REGULATIONS. HE WILL BE EXPECTED TO KEEP LOGS AND RECORDS OF EQUIPMENT OPERATION WHICH CONSIDERABLY EXCEED IN COMPREHENSIVENESS SIMILAR INFORMATION PRESENTLY REQUIRED BY F.C.C. RULES. THE CONTRACTOR WILL BE RESPONSIBLE FOR ALL MAINTENANCE AND ROUTINE REPAIR OF THE STATION. WILL BE REQUIRED TO FURNISH HIS OWN HAND TOOLS AND TO MAINTAIN ON HAND AN ADEQUATE STOCK OF SPARE TUBES AND SMALL REPLACEMENT PARTS AND TO SUPPLY THE SAME UP TO A MAXIMUM MONETARY SUM. REPLACEMENT OF MAJOR COMPONENTS WILL NOT BE THE RESPONSIBILITY OF THE CONTRACTOR. THE CONTRACTOR, IN ADDITION, WILL BE REQUIRED TO ASSUME ALL LIABILITY FOR DAMAGE TO THE EQUIPMENT AND INSTALLATION CAUSED BY THE NEGLIGENT OR WILLFUL ACT OR OMISSION OF HIMSELF, HIS EMPLOYEES, SERVANTS, OR AGENTS, AND TO PROVIDE ACCEPTABLE PROOF OF FINANCIAL RESPONSIBILITY EQUAL TO THE VALUE OF THE EQUIPMENT WHICH VALUE WILL BE APPROXIMATELY ONE-HALF MILLION DOLLARS.

SHOULD IT BE DETERMINED TO USE MULTICASTING, A SECOND TRANSMITTER WILL BE LOCATED IN NEW YORK CITY AT A POINT SEVERAL MILES FROM THE EMPIRE STATE BUILDING. A SIMILAR CONTRACT FOR OPERATION OF THIS STATION WOULD BE NEEDED.

IN ADDITION TO THE FOREGOING CONTRACTS FOR OPERATION OF THE TRANSMITTERS, YOU CONTEMPLATE THAT A CONTRACT WILL BE ISSUED FOR LOCATING AND RELOCATING APPROXIMATELY ONE HUNDRED U.H.F. TELEVISION RECEIVERS AT ONE THOUSAND OR MORE PRESELECTED LOCATIONS IN THE NEW YORK CITY AREA. CERTAIN WAREHOUSING, TRANSPORTATION, INSPECTION, REPAIR AND MAINTENANCE FACILITIES AND SERVICES WOULD BE EXPECTED TO BE FURNISHED BY THE CONTRACTOR UNDER SUCH CONTRACT. AGAIN, THE CONTRACTOR WOULD BE REQUIRED TO ASSUME LIABILITY FOR LOSS OR DAMAGE TO THE RECEIVERS WHILE IN HIS CUSTODY AND FURNISH ACCEPTABLE PROOF OF FINANCIAL RESPONSIBILITY FOR THE CONDUCT OF THIS OPERATION.

A CONTRACT OR SEVERAL CONTRACTS ARE CONTEMPLATED FOR THE CONDUCT OF THE OBSERVATION AND MEASUREMENTS PHASE OF THE PROJECT. THE CONTRACTOR WOULD BE REQUIRED TO MAKE PRESCRIBED OBSERVATIONS AND MEASUREMENTS AT THE LOCATIONS WHERE THE TELEVISION RECEIVERS ARE DEPLOYED. IN ADDITION, HE WOULD BE EXPECTED TO MAKE CERTAIN FIELD STRENGTH AND OTHER MEASUREMENTS AT SELECTED SITES SEPARATE FROM THE LOCATION OF THE RECEIVERS. SUCH PLACES MIGHT BE ROOF TOPS, BASEMENTS, AND STREET LEVEL LOCATIONS. ALSO, OBSERVATIONS AND MEASUREMENTS FROM HELICOPTERS, AIRPLANES, MOVING AUTOMOBILES, AND FLOATING VESSELS MAY BE REQUIRED. COORDINATION WITH THE RECEIVER PLACEMENT CONTRACTOR WOULD BE A NECESSITY.

A FURTHER CONTRACT OR CONTRACTS WOULD BE CONTEMPLATED TO ANALYZE AND EVALUATE THE DATA GENERATED BY THE OBSERVATIONS AND MEASUREMENTS. STATISTICAL, TABULATING, AND MATHEMATICAL SERVICE WOULD BE INVOLVED. REPORT OR REPORTS SHOWING THE TABULATION, RESULTS, AND TENTATIVE CONCLUSIONS OF THE OBSERVATIONS AND MEASUREMENTS WOULD BE THE END PRODUCT FURNISHED BY SUCH CONTRACTORS.

YOU SAY THAT THE VARIOUS PHASES OF THE ULTRA-HIGH FREQUENCY PROJECT WILL REQUIRE CAREFUL COORDINATION; THAT SEVERAL PHASES OF THE PROGRAM WILL BE CONDUCTED SIMULTANEOUSLY; THAT THE OBSERVATIONS AND MEASUREMENTS WILL BE MADE SIMULTANEOUSLY WITH THE LOCATION OF THE RECEIVERS; THAT THE TRANSMITTING SERVICES WILL OCCUPY, AND WILL PROBABLY EXTEND BEYOND THE SAME PERIOD; AND THAT THE ANALYSIS AND EVALUATING PROGRAM MAY OVERLAP THE LATTER PART OF THE TRANSMITTING PERIOD BUT IT IS EXPECTED THAT IT WILL BE ACCOMPLISHED AT A DATE SUBSEQUENT TO THE PERIOD OF ACTUAL TRANSMITTING.

YOU FURTHER SAY THAT WHEN THE PROJECT IS AT ITS PEAK--- WITH THE TRANSMITTER OR TRANSMITTERS BEING ON THE AIR, THE RECEIVERS BEING MOVED FROM LOCATION TO LOCATION, AND THE OBSERVATIONS AND MEASUREMENTS BEING MADE FROM THE MANY DIFFERENT LOCATIONS--- A LARGE NUMBER OF PERSONS WILL BE USED AT ONE TIME; AND THAT THAT FACT ALONE WOULD PRECLUDE THE COMMISSION FROM ATTEMPTING TO CONDUCT THE PROGRAM WITH ITS PRESENT PERSONNEL.

ALSO, YOU EXPLAIN THAT THE PROGRAM WILL BE CONDUCTED, FOR SCIENTIFIC REASONS, IN NEW YORK CITY; THAT MOST OF THE COMMISSION'S PERSONNEL ARE SITUATED IN WASHINGTON, D.C.; AND THAT PER DIEM AND TRAVEL EXPENSE WOULD BE REQUIRED IF COMMISSION PERSONNEL FROM THE WASHINGTON OFFICE OFF.C.C. WOULD BE EMPLOYED ON THE PROJECT.

YOU POINT OUT THAT THE PROJECT IS TEMPORARY AND THE DURATION SHORT; THAT AS INDICATED BY THE TEXT OF THE APPROPRIATION, THE PROJECT WILL HAVE TO BE CONCLUDED BY JUNE 30, 1962; AND THAT THAT FACT LIMITS THE POSSIBILITY OF RECRUITING NEW PERSONNEL; AND THAT SHORT TERM EMPLOYMENT WOULD NOT BE AN ATTRACTIVE INCENTIVE FOR MANY OF THE SKILLED EMPLOYEES WHO WILL BE NEEDED IN VARIOUS PHASES OF THE PROJECT.

YOUR DOUBT IN THE MATTER ARISES FROM THE GENERAL RULE THAT PURELY PERSONAL SERVICES MAY NOT BE OBTAINED UPON A CONTRACTUAL BASIS BUT ARE REQUIRED TO BE PERFORMED BY REGULAR EMPLOYEES WHO ARE RESPONSIBLE TO THE GOVERNMENT AND SUBJECT TO ITS SUPERVISION AND BY VIRTUE OF THE ELEMENTS OF PERSONAL SERVICES TO BE COVERED IN THE CONTRACTS CONTEMPLATED. ALSO, YOU APPARENTLY ARE CONCERNED WITH APPLICATION OF THE PROVISIONS OF 5 U.S.C. 55A, WHICH DEAL WITH THE HIRING OF EXPERTS AND CONSULTANTS.

THE GENERAL RULE ESTABLISHED BY DECISIONS OF THE ACCOUNTING OFFICERS IS THAT PURELY PERSONAL SERVICES MAY NOT BE OBTAINED ON A CONTRACTUAL BASIS BUT ARE REQUIRED TO BE PERFORMED BY REGULAR EMPLOYEES WHO ARE RESPONSIBLE TO THE GOVERNMENT AND SUBJECT TO ITS SUPERVISION. 18 COMP. GEN. 539; 19 ID. 594. EXCEPTIONS TO THAT RULE HAVE BEEN RECOGNIZED IN CERTAIN CASES WHEN EMPLOYEES WERE NOT AVAILABLE OR QUALIFIED TO PERFORM THE WORK INVOLVED, WHEN UNUSUAL CONDITIONS WERE ENCOUNTERED IN THE ACCOMPLISHMENT OF AN OBJECT, AND WHEN THE PROJECT IS OF TEMPORARY DURATION. THE REQUIREMENT THAT PURELY PERSONAL SERVICES ARE TO BE PERFORMED BY REGULAR EMPLOYEES OF THE GOVERNMENT, ETC., IS ONE OF POLICY RATHER THAN POSITIVE LAW, AND WHEN IT IS ADMINISTRATIVELY DETERMINED THAT IT WOULD BE SUBSTANTIALLY MORE ECONOMICAL, FEASIBLE, OR NECESSARY, BECAUSE OF UNUSUAL CIRCUMSTANCES, TO HAVE THE WORK INVOLVING PERSONAL SERVICES PERFORMED BY NON-GOVERNMENT PERSONNEL, AND THAT IS CLEARLY DEMONSTRABLE, OUR OFFICE WILL NOT OBJECT TO PROCURING SUCH WORK THROUGH PROPER CONTRACT ARRANGEMENT. 31 COMP. GEN. 372. MOREOVER, THE FEDERAL COMMUNICATIONS COMMISSION, IN THE HEARINGS ON THE APPROPRIATION BILL, REPRESENTED THAT THE STUDY WOULD BE CONDUCTED ALMOST EXCLUSIVELY BY THE MEANS OF CONTRACTS. SEE HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, 86TH CONGRESS, 2D SESSION, PART 2, ON THE INDEPENDENT OFFICES APPROPRIATIONS FOR 1961, PAGES 686, 691, 703. ALSO, IT APPEARS FROM YOUR LETTER THAT, IN THE FINAL ANALYSIS, MOST OF YOUR PROPOSED CONTRACTS ARE NOT, IN FACT, CONTRACTS FOR PERSONAL SERVICES. SEE 24 COMP. GEN. 414.

THEREFORE, UPON THE FACTS PRESENTED IN YOUR LETTER, AS DETAILED ABOVE, TOGETHER WITH THE REPRESENTATIONS MADE IN CONNECTION WITH THE REQUEST FOR APPROPRIATION, WE WOULD NOT BE REQUIRED TO OBJECT TO THE ACCOMPLISHMENT OF THE SPECIAL ULTRA-HIGH FREQUENCY TELEVISION STUDY BY CONTRACTS, IF OTHERWISE PROPER. HOWEVER, REGARDING ANY EXPERTS OR CONSULTANTS WHO MAY BE HIRED ON A PERSONAL SERVICE BASIS--- THAT IS, THOSE EMPLOYED WHETHER UNDER AN INSTRUMENT DESIGNATED AS A "CONTRACT" BUT WHO PERFORM THEIR WORK UNDER THE SUPERVISION AND CONTROL OF GOVERNMENT OFFICERS--- THE LIMITATIONS OF 5 U.S.C. 55A MUST BE COMPLIED WITH IN THE ABSENCE OF A STATUTE AUTHORIZING THE WAIVER THEREOF.