B-174726, MAR 6, 1972, 51 COMP GEN 561

B-174726, MAR 6, 1972, 51 COMP GEN 561

PERSONAL SERVICES - CONTRACTS - BASIS FOR CONTRACTING PERSONAL SERVICES SINCE THE RULE THAT PURELY PERSONAL SERVICES FOR GOVERNMENT ARE TO BE PERFORMED BY FEDERAL PERSONNEL UNDER GOVERNMENT SUPERVISION IS A RULE OF POLICY AND NOT POSITIVE LAW IT NEED NOT BE APPLIED WHEN CONTRACTING OUT IS SUBSTANTIALLY MORE ECONOMICAL, FEASIBLE, OR MADE NECESSARY BY UNUSUAL CIRCUMSTANCES AND THE SERVICES DO NOT REQUIRE GOVERNMENT SUPERVISION, AND, THEREFORE, THE SERVICES OF A SPANISH TRANSLATOR OBTAINED UNDER A PURCHASE ORDER MAY BE CONTINUED AND PAYMENT MADE IN ACCORDANCE WITH THE TERMS OF THE ORDER. HOWEVER, SUCH SERVICES IN THE FUTURE SHOULD BE MADE SUBJECT TO A FORMAL CONTRACT, FOR THE AUTHORITY TO USE A PURCHASE ORDER FOR SERVICES IS PRIMARILY INTENDED TO RELATE TO A ONE-TIME OPERATION. OVERRULES 6 COMP. GEN. 364.

TO ROY B. HOGG, OFFICE OF ECONOMIC OPPORTUNITY, MARCH 6, 1972:

WE REFER TO YOUR LETTER OF DECEMBER 9, 1971, REQUESTING TO BE ADVISED WHETHER MRS. OLGA E. RAMIREZ MAY CONTINUE TO PERFORM AND BE PAID FOR SERVICES SECURED BY THE USE OF A STANDARD FORM 147 ORDER FOR SUPPLIES AND SERVICES.

PURCHASE ORDER NO. C2C-0035 DATED JULY 9, 1971, PROVIDES IN PART AS FOLLOWS:

THIS IS A BLANKET PURCHASE ARRANGEMENT FOR A SPANISH TRANSLATION OF A VARIETY OF OFFICE OF ECONOMIC OPPORTUNITY INFORMATIONAL MATERIALS WHICH MIGHT BE SIGNIFICANTLY INTERESTING AND/OR BENEFICIAL TO SPANISH SPEAKING GROUPS FOR PERIOD 7/1/71-6/30/72 ***

PRICING - VENDOR PRICES TO THE GOVERNMENT SHALL BE AS LOW AS, OR LOWER THAN, THOSE CHARGED THE SUPPLIER'S MOST FAVORED CUSTOMER, IN ADDITION TO ANY DISCOUNTS FOR PROMPT PAYMENT.

WITH REGARD TO PRICE, THE PURCHASE ORDER PROVIDES IN ADDITION ONLY THAT THE AMOUNT IS NOT TO EXCEED $2,500.

YOU INDICATE THAT THE NEED FOR THE SERVICES MAY CONTINUE AFTER THE FULL AMOUNT OF FUNDS AVAILABLE IS UTILIZED. IT IS NOTED THAT FOR THE FIRST HALF OF FISCAL YEAR 1972 MRS. RAMIREZ HAS PROVIDED $775 WORTH OF SERVICES. ACCORDINGLY, WE SEE NO REASON TO ASSUME THAT THE $2,500 LIMITATION WILL BE EXCEEDED.

YOU STATE THAT THIS CASE IS PRACTICALLY IDENTICAL TO 6 COMP. GEN. 364, NOVEMBER 27, 1926, IN WHICH IT WAS HELD THAT, INASMUCH AS THE PERSONNEL CLASSIFICATION BOARD HAD CLASSIFIED TRANSLATORS AND ALLOCATED SUCH POSITIONS TO PARTICULAR GRADES, A CONTRACT FOR THE SERVICES OF A TRANSLATOR WOULD BE IN CONTRAVENTION OF THE THEN APPLICABLE CIVIL SERVICE AND CLASSIFICATION LAWS.

THE CASE WHICH YOU HAVE CITED WAS ONE OF OUR EARLY DECISIONS WHICH HELD IN EFFECT THAT ALL SERVICES NORMALLY PERFORMED BY GOVERNMENT EMPLOYEES AND ALL SERVICES WHICH COULD BE PERFORMED BY INCUMBENTS OF EXISTING CIVIL SERVICE POSITIONS WERE "PERSONAL SERVICES" FOR WHICH THERE EXISTED NO AUTHORITY TO ENTER INTO CONTRACTS. SINCE THOSE EARLY DECISIONS, THIS OFFICE AND THE CIVIL SERVICE COMMISSION HAVE RECOGNIZED THAT SERVICES NORMALLY PERFORMED BY GOVERNMENT PERSONNEL MAY BE PERFORMED UNDER A PROPER CONTRACT IF THAT METHOD OF PROCUREMENT IS FOUND TO BE MORE FEASIBLE, MORE ECONOMICAL, OR NECESSARY TO THE ACCOMPLISHMENT OF THE AGENCY'S TASK. 43 COMP. GEN. 390 (1963), WE STATED:

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-GOVERMENT PARTIES, AND THAT IS CLEARLY DEMONSTRABLE, WE WOULD NOT OBJECT TO THE PROCUREMENT OF SUCH WORK THROUGH PROPER CONTRACT ARRANGEMENT. 31 COMP. GEN. 372.

A "PROPER CONTRACT" FOR SERVICES AS CONTEMPLATED BY THE ABOVE LANGUAGE HAS BEEN RECOGNIZED TO BE ONE IN WHICH THE RELATIONSHIP ESTABLISHED BETWEEN THE GOVERNMENT AND THE CONTRACT PERSONNEL IS NOT THAT OF EMPLOYER AND EMPLOYEE. IN 45 COMP. GEN. 649 (1966), WE SUMMARIZED THE RULE AS FOLLOWS:

IT HAS BEEN HELD THAT SERVICES NORMALLY PERFORMED BY GOVERNMENT PERSONNEL MAY BE PERFORMED UNDER CONTRACT IF IT CAN BE SHOWN THAT THE CONTRACTING OUT IS SUBSTANTIALLY MORE ECONOMICAL, FEASIBLE, OR NECESSARY BY REASON OF UNUSUAL CIRCUMSTANCES. THAT RULE IS TO BE APPLIED TO CONTRACT PROCUREMENT ON A STRICTLY JOB BASIS UNDER WHICH THE GOVERNMENT CONTRACTS FOR THE FURNISHING OF A PRODUCT OR THE PERFORMANCE OF A SERVICE WITH NO DETAILED CONTROL OR SUPERVISION OVER THE METHOD BY WHICH THE RESULT REQUIRED IS ACCOMPLISHED. ***

SEE ALSO 31 COMP. GEN. 372 (1952); 33 ID. 143 (1953); 43 ID. 390 (1963); 44 ID. 761 (1965). IN DETERMINING WHETHER THE RELATIONSHIP CREATED IS PROSCRIBED THE CIVIL SERVICE COMMISSION HAS TAKEN THE POSITION THAT IF THE TERMS OF THE CONTRACT PERMIT OR REQUIRE DETAILED GOVERNMENT SUPERVISION OVER THE CONTRACTOR'S EMPLOYEES IT IS TO BE QUESTIONED. CHAPTER 304. SUBCHAPTER 1-4, OF THE FEDERAL PERSONNEL MANUAL SETS FORTH CRITERIA FOR DETERMINING WHETHER THE CONTRACT PERMITS OR REQUIRES SUPERVISION.

IN THE CASE WHICH YOU HAVE PRESENTED THERE IS NO SUGGESTION THAT THE SERVICE WHICH MRS. RAMIREZ IS TO PROVIDE IN FACT REQUIRES DETAILED GOVERNMENT SUPERVISION, NOR WOULD WE SUPPOSE FROM THE NATURE OF WORK DESCRIBED THAT SUCH WAS CONTEMPLATED OR IS LIKELY TO BE REQUIRED. YOU ARE THEREFORE ADVISED THAT MRS. RAMIREZ MAY CONTINUE TO PERFORM AND BE PAID FOR SERVICES AS OUTLINED IN THE PURCHASE ORDER. HOWEVER, IN THE FUTURE SERVICES SUCH AS HERE INVOLVED SHOULD BE MADE THE SUBJECT OF A FORMAL CONTRACT BETWEEN THE PARTIES. THE AUTHORITY FOR USE OF A PURCHASE ORDER FOR SERVICES IS PRIMARILY INTENDED TO RELATE TO A ONE TIME OPERATION.

YOUR FILE IS RETURNED HEREWITH.