B-152643, OCTOBER 17, 1963, 43 COMP. GEN. 390

B-152643, OCTOBER 17, 1963, 43 COMP. GEN. 390

PERSONAL SERVICES - PRIVATE CONTRACT V. GOVERNMENT PERSONNEL - JUSTIFICATION THE AWARD OF A PERSONAL SERVICE SHORT-TERM CONTRACT TO RECEIVE, STORE, AND DISTRIBUTE BLANK INCOME TAX FORMS WITHIN AN INTERNAL REVENUE SERVICE DISTRICT, THE GOVERNMENT IN ADDITION TO SUPPLYING WAREHOUSE SPACE, PACKING MATERIALS, AND OPERATIONAL FACILITIES, TO ASSIGN AN INSTRUCTIONAL SUPERVISOR, AND THE CONTRACTOR TO SUPERVISE HIS EMPLOYEES AND TO BE PAID UPON RESULTS TO BE ACCOMPLISHED RATHER THAN TIME WORKED WOULD EFFECT A PROPER CONTRACT IF BASED UPON ADMINISTRATIVE DETERMINATION THAT THE ARRANGEMENT WOULD BE MORE ECONOMICALLY FEASIBLE, OR NECESSARY BY REASON OF THE UNUSUAL CIRCUMSTANCES INVOLVED, THE GENERAL RULE THAT PURELY PERSONAL SERVICES FOR THE GOVERNMENT ARE REQUIRED TO BE PERFORMED BY FEDERAL PERSONNEL UNDER GOVERNMENT SUPERVISION BEING ONE OF POLICY RATHER THAN POSITIVE LAW.

TO THE COMMISSIONER, INTERNAL REVENUE SERVICE, OCTOBER 17, 1963:

REFERENCE IS MADE TO LETTER DATED OCTOBER 7, 1963 (A:FM:O) FROM C. A. ALBERDING, CONTRACTING OFFICER, REQUESTING OUR DECISION AS TO THE PROPRIETY OF AN ENCLOSED PROPOSED INVITATION, BID AND AWARD FROM YOUR SAN FRANCISCO REGIONAL OFFICE.

THE INVITATION, BID AND AWARD CONTEMPLATES THE ESTABLISHMENT OF A CONTRACT FOR THE RECEIPT, STORAGE, AND ISSUE OF BLANK INCOME TAX FORMS TO POINTS WITHIN THE LOS ANGELES DISTRICT OF THE INTERNAL REVENUE SERVICE, SAN FRANCISCO REGION, FOR THE PERIOD DECEMBER 1, 1963, TO APRIL 15, 1964. THE CONTRACTOR WOULD BE REQUIRED TO PICK UP ORDERS DAILY AT THE FEDERAL BUILDING, LOS ANGELES, FILL THE ORDERS, AND DISTRIBUTE TO GOVERNMENT AGENCIES, BANKS, TAX PRACTITIONERS, AND OTHERS REQUIRING THE FORMS IN ANY BULK QUANTITY. THE DISTRIBUTION WOULD BE CONDUCTED FROM THE INTERNAL REVENUE SERVICE WAREHOUSE, BELL, CALIFORNIA. AT NO ADDITIONAL COST TO THE GOVERNMENT THE CONTRACTOR WOULD UNLOAD, RECEIVE, RECORD, AND PLACE IN STACKS, SHIPMENTS OF TAX FORMS FORWARDED TO THE WAREHOUSE AT BELL, CALIFORNIA, SUBSEQUENT TO THE INCEPTION OF THE CONTRACT, AND LIKEWISE PROVIDE A VEHICLE AND DRIVER FOR EMERGENCY TRANSPORT OF SHIPMENTS BETWEEN THE FEDERAL BUILDING AND THE WAREHOUSE. THE CONTRACTOR ALSO WOULD MAINTAIN SHELF STOCKS IN THE SELF-SERVICE AREA AT THE WAREHOUSE AND FURNISH THE GOVERNMENT A WEEKLY INVENTORY OF FORMS ON HAND SO THAT AN ADEQUATE SUPPLY MAY BE MAINTAINED.

SHIPMENTS FOR DELIVERY TO POST OFFICES, BANK, GOVERNMENT AGENCIES, AND INTERNAL REVENUE SERVICE AREA OFFICES WOULD BE AT GOVERNMENT EXPENSE AND WOULD BE ACCOMPLISHED BY MAIL AND GENERAL SERVICES ADMINISTRATION DRAYAGE CONTRACTS. THE CONTRACT APPEARS TO CONTEMPLATE THAT SHIPMENTS TO PRIVATE PARTIES REQUIRING FORMS IN BULK QUANTITIES WOULD BE MADE AT THEIR EXPENSE VIA PARCEL POST OR COMMON CARRIER.

UNDER THE CONTRACT THE GOVERNMENT WOULD SUPPLY WITHOUT COST TO THE CONTRACTOR SPACE FOR OPERATION IN THE WAREHOUSE DESCRIBED ABOVE; SUPPLIES SUCH AS WRAPPING PAPER, SHIPPING CARTONS, ENVELOPES, TAPE, TWINE, LABELS, ETC.; AND FACILITIES SUCH AS SCALES, CONVEYORS, FURNITURE, AND TELEPHONE SERVICE.

FOR A PERIOD OF NOT LESS THAN 1 MONTH NOR MORE THAN 2 MONTHS, THE GOVERNMENT WOULD ASSIGN A QUALIFIED SUPERVISOR FOR INSTRUCTIONAL PURPOSES. THE CONTRACTOR WOULD FURNISH HIS SERVICES FOR A SPECIFIED PRICE PER THOUSAND TAX FORMS DISTRIBUTED.

IT IS SIGNIFICANT THAT THE CONTRACT ENCOMPASSES A RELATIVELY SHORT PERIOD OF TIME, ALTHOUGH IT MAY BE PRESUMED THAT SUCH PROCEDURE MAY BE REPEATED ANNUALLY; THAT SUBSEQUENT TO THE INSTRUCTIONAL PERIOD, THE CONTRACTOR WOULD FURNISH DIRECT SUPERVISION OVER HIS EMPLOYEES; AND THAT THE CONTRACT PRICE WOULD BE BASED UPON THE RESULTS TO BE ACCOMPLISHED RATHER THAN THE TIME ACTUALLY WORKED.

THE GENERAL RULE IS THAT PURELY PERSONAL SERVICES FOR THE GOVERNMENT ARE REQUIRED TO BE PERFORMED BY FEDERAL PERSONNEL UNDER GOVERNMENT SUPERVISION. SEE FOR EXAMPLE, 6 COMP. GEN. 140; 24 ID. 924; AND 32 ID. 427, WHICH IS CITED IN THE LETTER. HOWEVER, THE REQUIREMENT OF THIS RULE IS ONE OF POLICY RATHER THAN POSITIVE LAW AND WHEN IT IS ADMINISTRATIVELY DETERMINED THAT IT WOULD BE SUBSTANTIALLY MORE ECONOMICAL, FEASIBLE, OR NECESSARY BY REASON OF UNUSUAL CIRCUMSTANCES TO HAVE THE WORK PERFORMED BY NON-GOVERNMENT PARTIES, AND THAT IS CLEARLY DEMONSTRABLE, WE WOULD NOT OBJECT TO THE PROCUREMENT OF SUCH WORK THROUGH PROPER CONTRACT ARRANGEMENT. 31 COMP. GEN. 372.

ACCORDINGLY, IF IT IS ADMINISTRATIVELY DETERMINED THAT THE PROCUREMENT OF THE DISTRIBUTION SERVICES IN QUESTION BY PROPER CONTRACT ARRANGEMENT WOULD BE SUBSTANTIALLY MORE ECONOMICAL, FEASIBLE, OR NECESSARY BY REASON OF THE CIRCUMSTANCES INVOLVED WE WOULD NOT BE REQUIRED TO OBJECT THERETO.