B-161474, JUN. 14, 1967

B-161474: Jun 14, 1967

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EXTENDS ONLY TO CONTRACTS MADE ON AN INDEPENDENT CONTRACTOR OR TASK BASIS EXCEPT IF IT OTHERWISE CAN BE SHOWN THAT THE PROVISION OF LAW IN QUESTION WAS INTENDED TO CREATE AN EXCEPTION TO APPLICABLE LAWS REGARDING THE EMPLOYMENT OF PERSONNEL. IT IS WELL SETTLED THAT ANY EXCEPTION TO THE COMPENSATION SCHEDULES AND CIVIL SERVICE LAWS MUST BE BASED UPON A SPECIFIC PROVISION OF LAW. 26 OP. THAT PROVISION IS AS FOLLOWS: "/B) THE ADMINISTRATOR SHALL HAVE AUTHORITY TO ESTABLISH RESIDENCIES AND INTERNSHIPS. IT IS OUR VIEW THAT THE PERSONAL SERVICES REFERRED TO IN 38 U.S.C. 213 ARE SERVICES WHICH NORMALLY ARE PERFORMED BY EMPLOYEES SUCH AS THE SERVICES OF DOCTORS OR DENTISTS. THE AUTHORITY CONTAINED IN THAT SECTION IS NOT BROAD ENOUGH TO AUTHORIZE THE ADMINISTRATION TO MAKE A CONTRACT THE RESULT OF WHICH IS TO OBTAIN EMPLOYEES FOR THE ADMINISTRATION WITHOUT REGARD TO THE CIVIL SERVICE LAWS AND THE PROVISIONS OF TITLE 38 U.S.C.

B-161474, JUN. 14, 1967

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION:

WE REFER TO YOUR LETTER OF MAY 9, 1967, CONCERNING A PROPOSAL THAT THE DEPARTMENT OF MEDICINE AND SURGERY, VETERANS ADMINISTRATION,OBTAIN THE SERVICES OF RESIDENTS AND INTERNS BY MEANS OF CONTRACTS WITH MEDICAL SCHOOLS.

YOU REQUEST OUR DECISION WHETHER A CONTRACT BY WHICH A MEDICAL SCHOOL AGREES TO SUPPLY ALL THE NEEDS OF THE VETERANS ADMINISTRATION FOR THE SERVICES OF RESIDENTS AND INTERNS WOULD BE PROPER. IT APPEARS FROM YOUR LETTER AND THE SAMPLE CONTRACT ENCLOSED THAT UNDER THE PROPOSED ARRANGEMENT THE MEDICAL SCHOOL INVOLVED WOULD RECRUIT THE NECESSARY RESIDENTS AND INTERNS AND ASSIGN THEM TO VETERANS ADMINISTRATION FACILITIES TO PERFORM ALL OR A PART OF THEIR DUTIES. THE VETERANS ADMINISTRATION WOULD PAY THE MEDICAL SCHOOL A LUMP SUM OR WOULD MAKE PAYMENTS ON THE BASIS OF MAN-MONTHS OF SERVICES RENDERED AND THE MEDICAL SCHOOL WOULD PAY THE SALARIES OF THE INTERNS AND RESIDENTS AND FIX THEIR FRINGE BENEFITS WITHOUT REGARD TO THE LAWS, REGULATIONS AND PRACTICES APPLICABLE TO VETERANS ADMINISTRATION EMPLOYEES.

YOU CITE 38 U.S.C. 213 AS THE VETERANS ADMINISTRATION'S AUTHORITY FOR ENTERING INTO THE TYPE OF CONTRACT IN QUESTION EITHER ON A PILOT STUDY OR ON A PERMANENT OPERATING BASIS. THAT SECTION PROVIDES:

"THE ADMINISTRATOR MAY, FOR PURPOSES OF ALL LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION, ACCEPT UNCOMPENSATED SERVICES, AND ENTER INTO CONTRACTS OR AGREEMENTS WITH PRIVATE OR PUBLIC AGENCIES OR PERSONS, FOR SUCH NECESSARY SERVICES (INCLUDING PERSONAL SERVICES) AS HE MAY DEEM PRACTICABLE.'

GENERAL AUTHORITY TO CONTRACT FOR SERVICES INCLUDING PERSONAL SERVICES, AS CONTAINED IN THAT PROVISION OF LAW, EXTENDS ONLY TO CONTRACTS MADE ON AN INDEPENDENT CONTRACTOR OR TASK BASIS EXCEPT IF IT OTHERWISE CAN BE SHOWN THAT THE PROVISION OF LAW IN QUESTION WAS INTENDED TO CREATE AN EXCEPTION TO APPLICABLE LAWS REGARDING THE EMPLOYMENT OF PERSONNEL. IT IS WELL SETTLED THAT ANY EXCEPTION TO THE COMPENSATION SCHEDULES AND CIVIL SERVICE LAWS MUST BE BASED UPON A SPECIFIC PROVISION OF LAW. 26 OP. ATTY. GEN. 363, ID. 502; 27 ID. 95; 37 ID. 121; 24 COMP. GEN. 147, 149. ALSO, EXCEPTIONS TO SPECIAL PROVISIONS OF LAW WHICH RELATE TO CERTAIN EMPLOYEES OF THE GOVERNMENT MUST BE SPECIFIC. 38 U.S.C. 213 AND THE LEGISLATIVE HISTORY THEREOF DO NOT EVIDENCE AN INTENT ON THE PART OF CONGRESS TO EXEMPT THE VETERANS ADMINISTRATION FROM ALL REQUIREMENTS OF LAW PERTAINING TO THE EMPLOYMENT OF PERSONNEL. MOREOVER, AFTER ENACTMENT OF THAT PROVISION AS THE SECOND SENTENCE OF SECTION 1500 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, IMPROVED JUNE 22, 1944, 58 STAT. 300, THE CONGRESS SPECIFICALLY AUTHORIZED THE ADMINISTRATOR TO EMPLOY CERTAIN TYPES OF PERSONNEL IN THE DEPARTMENT OF MEDICINE AND SURGERY WITHOUT REGARD TO THE CIVIL SERVICE LAWS, RULES AND REGULATIONS AND REQUIRED THAT OTHER PERSONNEL OF THAT DEPARTMENT BE APPOINTED IN ACCORDANCE WITH THE CIVIL SERVICE LAWS, RULES, AND REGULATIONS. SEE SECTIONS 6 AND 11 OF THE ACT OF JANUARY 3, 1946, 59 STAT. 677, NOW CONTAINED IN 38 U.S.C. 4106, 4111. U.S.C. 4114 (B) CONTAINS THE SPECIAL PROVISION PERTAINING TO THE APPOINTMENT OF RESIDENTS AND INTERNS IN THE DEPARTMENT OF MEDICINE AND SURGERY. THAT PROVISION IS AS FOLLOWS:

"/B) THE ADMINISTRATOR SHALL HAVE AUTHORITY TO ESTABLISH RESIDENCIES AND INTERNSHIPS; TO APPOINT QUALIFIED PERSONS TO SUCH POSITIONS WITHOUT REGARD TO CIVIL-SERVICE OR CLASSIFICATION LAWS, RULES, OR REGULATIONS; AND TO PRESCRIBE THE CONDITIONS OF SUCH EMPLOYMENT, INCLUDING NECESSARY TRAINING, AND THE CUSTOMARY AMOUNT AND TERMS OF PAY DURING THE PERIOD OF SUCH EMPLOYMENT AND TRAINING.'

IT IS OUR VIEW THAT THE PERSONAL SERVICES REFERRED TO IN 38 U.S.C. 213 ARE SERVICES WHICH NORMALLY ARE PERFORMED BY EMPLOYEES SUCH AS THE SERVICES OF DOCTORS OR DENTISTS. THAT SECTION GIVES THE VETERANS ADMINISTRATION AUTHORITY TO CONTRACT FOR THE SERVICES OF DOCTORS AND DENTISTS ON A FEE BASIS AND TO CONTRACT FOR THE PERFORMANCE OF OTHER PERSONAL SERVICES ON AN INDEPENDENT CONTRACTOR OR TASK BASIS. HOWEVER, THE AUTHORITY CONTAINED IN THAT SECTION IS NOT BROAD ENOUGH TO AUTHORIZE THE ADMINISTRATION TO MAKE A CONTRACT THE RESULT OF WHICH IS TO OBTAIN EMPLOYEES FOR THE ADMINISTRATION WITHOUT REGARD TO THE CIVIL SERVICE LAWS AND THE PROVISIONS OF TITLE 38 U.S.C. RELATING TO EMPLOYMENT OF INDIVIDUALS BY THE VETERANS ADMINISTRATION.

IN THE SAMPLE CONTRACT THE PERFORMANCE OF AUTOPSIES (PROVISION RELATING TO PATHOLOGY SERVICES) WOULD APPARENTLY BE ON A TASK BASIS SINCE THE CONTRACTOR WOULD ACCEPT FULL RESPONSIBILITY FOR CONDUCTING AND REPORTING ON ALL AUTOPSIES REQUIRED BY THE HOSPITAL. ON THE OTHER HAND, THE PROVISION WITH REGARD TO ORTHOPEDIC SERVICES CALLS FOR PERFORMANCE ON AN EMPLOYEE BASIS BECAUSE IT PROVIDES THAT THE RESIDENT FURNISHED BY THE CONTRACTOR WILL BE UNDER THE DIRECTION OF THE STAFF AT THE HOSPITAL. COMP. GEN. 761. IF THE CONTRACTOR ACCEPTS THE RESPONSIBILITY FOR THE PERFORMANCE OF A TASK AND NOT ONLY FOR THE FURNISHING OF PERSONNEL A CONTRACT MAY BE EXECUTED UNDER 38 U.S.C. 213.

FOR THE REASONS STATED AND ON THE BASIS OF THE INFORMATION PROVIDED IT DOES NOT APPEAR THAT THE PROCUREMENT OF THE SERVICES OF INTERNS AND RESIDENTS FOR THE DEPARTMENT OF MEDICINE AND SURGERY BY MEANS OF CONTRACTS OF THE TYPE FURNISHED WOULD BE PROPER. A CONTRACT TO BE PERFORMED ON A STRICTLY TASK OR JOB BASIS UNDER WHICH THE CONTRACTOR AGREED TO PERFORM A COMPLETE SERVICE WOULD BE PROPER.

FURTHER IN VIEW OF THE BROAD AUTHORITY CONTAINED IN 38 U.S.C. 4114 (B) IT MIGHT BE POSSIBLE FOR THE VETERANS ADMINISTRATION TO ENTER INTO AN AGREEMENT OR CONTRACT WITH A MEDICAL SCHOOL WHICH WOULD INCORPORATE COMPLIANCE WITH THAT SECTION BY INCLUDING IN SUCH CONTRACT OR AGREEMENT A PROVISION REQUIRING APPOINTMENT BY THE VETERANS ADMINISTRATION OF INTERNS AND RESIDENTS WHO WILL WORK UNDER THE SUPERVISION OF VETERANS ADMINISTRATION PERSONNEL AND BY INCLUDING AGREED ,CONDITIONS OF EMPLOYMENT" AND "TERMS OF PAY.' MEMBERS OF OUR STAFF WILL BE AVAILABLE TO CONSULT ON ANY QUESTIONS YOU MAY HAVE WITH REGARD TO SUCH A CONTRACT OR AGREEMENT.