B-153147, JANUARY 14, 1964, 43 COMP. GEN. 509

B-153147: Jan 14, 1964

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YOUR SPECIFIC QUESTIONS ARE SET FORTH IN THE LAST PARAGRAPH OF YOUR LETTER AS FOLLOWS: 1. 18 ARE NOW AN INTEGRAL PART OF THE GENERAL SCHEDULE. IF YOUR ANSWER TO QUESTION 1 IS IN THE NEGATIVE. UNLESS OTHER RATES ARE SPECIFICALLY PROVIDED IN THE APPROPRIATION OR OTHER LAW * * *.'. THAT IS. 18 WHENEVER THE POSITION CONCERNED IS IN THE CATEGORY EXEMPT FROM NUMERICAL LIMITATION. THE REVIEW IS ONLY FOR THE PURPOSE OF DETERMINING THAT THE CLASSIFICATION ACTION IS CORRECT. SECTION 606 (A) OF PUBLIC LAW 87-793 IS AS FOLLOWS: SECTION 505 (B) OF THE CLASSIFICATION ACT OF 1949. IS AMENDED BY STRIKING OUT "NOT TO EXCEED AN AGGREGATE OF NINETEEN HUNDRED AND EIGHTY-NINE" AND SUBSTITUTING IN LIEU THEREOF "NOT TO EXCEED AN AGGREGATE OF TWENTY-FOUR HUNDRED.

B-153147, JANUARY 14, 1964, 43 COMP. GEN. 509

EXPERTS AND CONSULTANTS - COMPENSATION - AGGREGATE LIMITATION ALTHOUGH THE REMOVAL OF THE NUMERICAL LIMITATION ON PROFESSIONAL ENGINEERING POSITIONS IN RESEARCH AND DEVELOPMENT AND PROFESSIONAL POSITIONS IN THE PHYSICAL AND NATURAL SCIENCES AND MEDICINE THAT MAY BE PLACED IN GRADES GS-16, 17 AND 18 BY DEPARTMENTS AND AGENCIES UNDER SECTION 606 (A) OF THE CLASSIFICATION ACT AMENDMENTS OF 1962, 5 U.S.C. 1105 (B), PERMITS THE EMPLOYMENT OF EXPERTS AND CONSULTANTS UNDER SECTION 15 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 5 U.S.C. 55A, IN SUCH PROFESSIONAL POSITIONS AT RATES OF COMPENSATION EQUAL TO THE MAXIMUM SALARY RATE OF GRADE GS-18, OR ANY LESSER RATE, THE EMPLOYMENT OF EXPERTS AND CONSULTANTS IN OTHER POSITIONS MAY NOT BE MADE AT RATES IN EXCESS OF THE HIGHEST RATE FOR GRADE GS-15 IN VIEW OF THE LIMITATION THAT PRECLUDES AGENCIES FROM PLACING POSITIONS IN GRADES GS-16, 17, AND 18 WITHOUT NUMERICAL LIMITATION OR APPROVAL OF THE CIVIL SERVICE COMMISSION.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, JANUARY 14, 1964:

ON DECEMBER 24, 1963, YOU REQUESTED A DECISION CONCERNING THE EMPLOYMENT OF EXPERTS AND CONSULTANTS UNDER THE GENERAL AUTHORITY OF SECTION 15 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 5 U.S.C. 55A, AT RATES OF COMPENSATION EQUAL TO THE MAXIMUM SALARY RATE OF GRADE GS 18 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1071, ET SEQ. YOUR SPECIFIC QUESTIONS ARE SET FORTH IN THE LAST PARAGRAPH OF YOUR LETTER AS FOLLOWS:

1. SINCE GRADES GS-16, 17, AND 18 ARE NOW AN INTEGRAL PART OF THE GENERAL SCHEDULE, MAY THE PER ANNUM RATE OF GS-18 BE USED IN COMPUTING THE HIGHEST PER DIEM RATE OF COMPENSATION PAYABLE TO EXPERTS AND CONSULTANTS IN ALL TYPES OF POSITIONS?

2. IF YOUR ANSWER TO QUESTION 1 IS IN THE NEGATIVE, MAY THE PER ANNUM RATE OF GS-18 BE USED IN COMPUTING THE HIGHEST PER DIEM RATE OF COMPENSATION PAYABLE TO EXPERTS AND CONSULTANTS IN PROFESSIONAL ENGINEERING POSITIONS PRIMARILY CONCERNED WITH RESEARCH AND DEVELOPMENT, AND PROFESSIONAL POSITIONS IN THE PHYSICAL AND NATURAL SCIENCES AND MEDICINE?

SECTION 15 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 810, PROVIDES FOR THE PROCUREMENT OF EXPERTS OR CONSULTANTS IN ACCORDANCE WITH THE TERMS THEREOF "AT RATES NOT IN EXCESS OF THE PER DIEM EQUIVALENT OF THE HIGHEST RATE PAYABLE UNDER THE CLASSIFICATION ACT, UNLESS OTHER RATES ARE SPECIFICALLY PROVIDED IN THE APPROPRIATION OR OTHER LAW * * *.' YOU REFER TO OUR DECISION 29 COMP. GEN. 267 (1949), HOLDING THAT THE LANGUAGE OF SECTION 15 "NOT IN EXCESS OF THE PER DIEM EQUIVALENT OF THE HIGHEST RATE PAYABLE UNDER THE CLASSIFICATION ACT" MEANS NOT IN EXCESS OF THE MAXIMUM RATE OF THE HIGHEST CLASSIFICATION ACT GRADE TO WHICH AGENCIES CAN APPOINT PERSONNEL SUBJECT TO THE CLASSIFICATION ACT WITHOUT NUMERICAL LIMITATION OR OUTSIDE APPROVAL, THAT IS, GRADE GS 15. ALSO, YOU REFER TO OUR UNPUBLISHED DECISION OF JANUARY 7, 1958, B 134645, IN WHICH WE STATED THAT THERE HAS BEEN NO AMENDATORY OR OTHER LEGISLATION WARRANTING ANY CHANGE IN THE HOLDING IN THE EARLIER DECISION (29 COMP. GEN. 267).

YOU POINT OUT THAT SINCE THE DATES OF THOSE DECISIONS SECTION 606 OF THE FEDERAL SALARY REFORM ACT OF 1962, PUBLIC LAW 87-793, 76 STAT. 848, 5 U.S.C. 1105 (B), AMENDED SECTION 505 (B) OF THE CLASSIFICATION ACT OF 1949 TO REMOVE THE NUMERICAL LIMITATION ON THE CLASSIFICATION IN GRADES 16, 17, AND 18 OF "PROFESSIONAL ENGINEERING POSITIONS PRIMARILY CONCERNED WITH RESEARCH AND DEVELOPMENT AND PROFESSIONAL POSITIONS IN THE PHYSICAL AND NATURAL SCIENCES AND MEDICINE; " ALSO, THAT WHILE SECTION 505 (A), 5 U.S.C. 1105 (A), STILL REQUIRES THAT THE COMMISSION GIVE PRIOR APPROVAL TO THE CLASSIFICATION OF POSITIONS IN GRADES 16, 17, AND 18 WHENEVER THE POSITION CONCERNED IS IN THE CATEGORY EXEMPT FROM NUMERICAL LIMITATION, THE REVIEW IS ONLY FOR THE PURPOSE OF DETERMINING THAT THE CLASSIFICATION ACTION IS CORRECT.

SECTION 606 (A) OF PUBLIC LAW 87-793 IS AS FOLLOWS:

SECTION 505 (B) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED (5 U.S.C. 1105 (B) (, RELATING TO THE LIMITATION ON NUMBERS OF POSITIONS IN GRADES 16, 17, AND 18 OF THE GENERAL SCHEDULE OF SUCH ACT, IS AMENDED BY STRIKING OUT "NOT TO EXCEED AN AGGREGATE OF NINETEEN HUNDRED AND EIGHTY-NINE" AND SUBSTITUTING IN LIEU THEREOF "NOT TO EXCEED AN AGGREGATE OF TWENTY-FOUR HUNDRED, IN ADDITION TO PROFESSIONAL ENGINEERING POSITIONS PRIMARILY CONCERNED WITH RESEARCH AND DEVELOPMENT AND PROFESSIONAL POSITIONS IN THE PHYSICAL AND NATURAL SCIENCES AND MEDICINE WHICH MAY BE PLACED IN SUCH GRADES.'

S.REPT. NO. 2120 DATED SEPTEMBER 24, 1962, ON H.R. 7927 (SUBSEQUENTLY ENACTED AS PUBLIC LAW 87-793) STATES ON PAGE 25 AS FOLLOWS:

SECTION 606.--- THIS SECTION AMENDS SECTION 505 OF THE CLASSIFICATION ACT. SUBSECTION (A) INCREASES FROM 1,989 TO 2,400 THE LIMITATION ON THE NUMBER OF POSITIONS THE CIVIL SERVICE COMMISSION, UNDER SECTION 505 (B) OF THE CLASSIFICATION ACT, MAY AUTHORIZE TO BE PLACED IN GRADES 16, 17, AND 18 OF THE GENERAL SCHEDULE, AND EXCLUDES FROM THIS LIMITATION ENGINEERING RESEARCH AND DEVELOPMENT POSITIONS AND POSITIONS IN THE PHYSICAL SCIENCES, NATURAL SCIENCES, AND MEDICINE. SEE ALSO S.REPT. NO. 2532, OCTOBER 4, 1962, ON H.R. 7927, PAGE 62.

IT CLEARLY APPEARS THAT NO LONGER IS ANY LIMITATION IMPOSED UPON THE NUMBER OF "PROFESSIONAL ENGINEERING POSITIONS PRIMARILY CONCERNED WITH RESEARCH AND DEVELOPMENT AND PROFESSIONAL POSITIONS IN THE PHYSICAL AND NATURAL SCIENCES AND MEDICINE" WHICH MAY BE PLACED IN GRADES 16, 17, AND 18 OF THE CLASSIFICATION ACT. WHILE, AS PREVIOUSLY INDICATED, THE CIVIL SERVICE COMMISSION UNDER SECTION 505 (A) OF THE CLASSIFICATION ACT STILL MUST APPROVE THE PLACING OF PROFESSIONAL ENGINEERING POSITIONS AND THE OTHER PROFESSIONAL POSITIONS ENUMERATED IN SECTION 606 (A) OF PUBLIC LAW 87-793, IN GRADES 16, 17, AND 18, SUCH APPROVAL IS LIMITED TO A DETERMINATION WHETHER THE POSITIONS INVOLVED ARE PROPERLY CLASSIFIED. HENCE, WE DO NOT VIEW THE HOLDING IN 29 COMP. GEN. 267 AS PRECLUDING THE APPOINTMENT OF THE PROFESSIONAL PERSONNEL DESCRIBED IN SECTION 606 (A) UNDER SECTION 15 OF THE ACT OF AUGUST 2, 1946, AND PAYMENT TO THEM OF THE PER DIEM EQUIVALENT OF THE HIGHEST RATE PAYABLE UNDER THE CLASSIFICATION ACT--- THE RATE PRESCRIBED FOR GRADE GS-18--- OR ANY LESSER RATE.

ON THE OTHER HAND, NEITHER SECTION 606 (A) NOR ANY OTHER STATUTORY AUTHORITY OF WHICH WE ARE AWARE GRANTS AGENCIES THE AUTHORITY TO PLACE OTHER POSITIONS IN GRADES GS-16, 17, AND 18 WITHOUT NUMERICAL LIMITATION.

ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE AND YOUR SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.