B-23199, FEBRUARY 4, 1942, 21 COMP. GEN. 749

B-23199, FEBRUARY 4, 1942, 21 COMP. GEN. 749

DEPARTMENTS AND ESTABLISHMENTS - SERVICES BETWEEN - PERSONAL SERVICE EMPLOYMENT AUTHORITY WHERE WORK CAN BE PERFORMED BY A DEPARTMENT OR AGENCY WITH ITS OWN FUNDS AND FACILITIES AS WELL AS IT COULD BE PERFORMED BY ANOTHER DEPARTMENT OR AGENCY, FUNDS MAY NOT LEGALLY BE TRANSFERRED UNDER AUTHORITY OF SECTION 601 OF THE ACT OF JUNE 30, 1932, TO SUCH OTHER DEPARTMENT OR AGENCY MERELY FOR THE PURPOSE OF AVOIDING RESTRICTIONS IMPOSED UPON THE TRANSFERRING AGENCY IN THE EMPLOYMENT OF PERSONNEL. WHERE THE BUREAU OF THE CENSUS, BY REASON OF ITS EQUIPMENT, SPECIALLY TRAINED PERSONNEL AND EXCLUSIVE POSSESSION OF CERTAIN STATISTICAL DATA, IS EQUIPPED TO PERFORM FOR ANOTHER AGENCY STATISTICAL WORK FOR WHICH THE FUNDS OF THE LATTER AGENCY WOULD BE AVAILABLE IF THE WORK WERE PERFORMED BY IT, EMPLOYEES OF THE SAID BUREAU WHO ARE COMPENSATED WITHOUT REGARD TO THE CLASSIFICATION ACT MAY BE USED IN PERFORMANCE OF THE WORK--- WHETHER THE WORK BE DONE ON A REIMBURSEMENT OR ADVANCE-OF-FUNDS BASIS--- EVEN THOUGH THE APPROPRIATIONS FROM WHICH THE FUNDS ARE TO BE TRANSFERRED IN PAYMENT FOR THE WORK REQUIRE THAT EMPLOYEES OF THE TRANSFERRING AGENCY BE PAID IN ACCORDANCE WITH THE CLASSIFICATION ACT. 21 COMP. GEN. 254; 18 ID. 489; 17 ID. 900; 16 ID. 3, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, FEBRUARY 4, 1942:

I HAVE YOUR LETTER OF JANUARY 17, 1942, AS FOLLOWS:

THE BUREAU OF THE CENSUS HAS BEEN CALLED ON FROM TIME TO TIME DURING THE PAST EIGHT MONTHS TO PREPARE FROM ITS RECORDS AND FURNISH CERTAIN SPECIAL AND VARIED STATISTICAL INFORMATION TO SEVERAL OF THE NATIONAL DEFENSE AGENCIES OF THE FEDERAL GOVERNMENT. THESE NECESSARY DATA CAN BE OBTAINED ONLY WITH THE USE OF THE BUREAU'S FILES AND RECORDS AND ARE ESSENTIAL FOR THE PROPER ADVANCE PLANNING OF MANY VITAL PHASES OF THE NATIONAL DEFENSE PROGRAM AND THEIR SUCCESSFUL EXECUTION.

THE WORK COMPLETED, AS WELL AS THAT IN PROGRESS, HAS BEEN DONE WITH FUNDS OF THE BUREAU OF THE CENSUS ON A REIMBURSABLE BASIS AND THE PERSONNEL ENGAGED ON IT WERE EMPLOYEES UNDER CIVIL SERVICE BUT NOT SUBJECT TO THE CLASSIFICATION ACT, 1923, AS AMENDED.

A STATEMENT OF THE JOBS IN PROCESS AND THOSE CONTEMPLATED IN THE NEAR FUTURE, SHOWING THE AGENCIES AFFECTED AND THE AMOUNTS MADE AVAILABLE, IS ATTACHED.

THE DEMANDS FOR ADDITIONAL DATA OF A TECHNICAL AND SPECIALIZED CHARACTER HAVE INCREASED TO SUCH AN EXTENT THAT IT WILL NOT BE POSSIBLE FOR THE BUREAU TO CONTINUE TO COMPLY WITH THEM ON THE PRESENT BASIS AS THE LIMITED AMOUNT OF FUNDS AVAILABLE IN THE BUREAU'S APPROPRIATION WILL NOT PERMIT TO FINANCE THESE SPECIAL OPERATIONS ON A REIMBURSABLE BASIS, FOR WHICH IT HAS TO WAIT FOR SEVERAL MONTHS BEFORE RECEIVING PAYMENT, AND CARRY ON ITS REGULAR WORK.

THE NATIONAL DEFENSE AGENCIES REQUESTING THE VARIOUS DATA FROM THE BUREAU OF THE CENSUS ARE WILLING TO PROVIDE IN ADVANCE FUNDS FROM WHICH THE ESTIMATED COST OF THE WORK TO BE DONE CAN BE PAID. HOWEVER, THE USE OF WORKING FUNDS TO FINANCE THE OPERATIONS PRESENTS A PROBLEM WHICH INVOLVES THE PERSONNEL TO BE USED ON THE ASSIGNMENTS. IT IS UNDERSTOOD THAT THE APPROPRIATIONS FROM WHICH THE ADVANCE FUNDS WOULD BE PROVIDED LIMIT THE PAYMENT OF SALARIES TO EMPLOYEES CLASSIFIED UNDER THE CLASSIFICATION ACT, 1923, AS AMENDED. DURING THE SIXTEENTH DECENNIAL CENSUS PERIOD ALL THE DEPARTMENTAL EMPLOYEES OF THE BUREAU ARE UNDER CIVIL SERVICE BUT ONLY A RELATIVELY SMALL PROPORTION OF THEM ARE CLASSIFIED UNDER THE CLASSIFICATION ACT, 1923, AS AMENDED. BECAUSE OF THE FACT THAT THE BUREAU IS NOW ENGAGED IN EDITING, COMPILING, AND PUBLISHING THE RESULTS OF THE SIXTEENTH DECENNIAL CENSUS, THE LARGEST STATISTICAL ENTERPRISE EVER UNDERTAKEN, IT IS NOT PRACTICABLE FOR THE BUREAU TO DISPOSE ITS PERSONNEL SO THAT ONLY EMPLOYEES CLASSIFIED UNDER THE CLASSIFICATION ACT, 1923, AS AMENDED, WILL BE USED ON THE WORK DONE FOR THE NATIONAL DEFENSE AGENCIES.

IT IS ABSOLUTELY ESSENTIAL THAT THE NATIONAL DEFENSE EFFORT SHALL NOT BE DELAYED OR HAMPERED BY THE LACK OF NECESSARY STATISTICAL DATA AND THE BUREAU OF THE CENSUS IS READY AND WILLING TO FURNISH ALL INFORMATION IN ITS POSSESSION TO THE AGENCIES REQUESTING IT PROVIDED THE FUNDS ARE AVAILABLE TO FINANCE THE ESTIMATED COST OF THE WORK. YOU ARE REQUESTED, THEREFORE, TO ADVISE ME WHETHER WORKING FUNDS ESTABLISHED OUT OF APPROPRIATIONS THAT REQUIRE CIVIL SERVICE EMPLOYEES TO BE CLASSIFIED UNDER THE CLASSIFICATION ACT, 1923, AS AMENDED, CAN BE USED DURING THE PRESENT NATIONAL EMERGENCY TO PAY THE SALARIES AT PER DIEM RATES OF CIVIL SERVICE DEPARTMENTAL EMPLOYEES WHO ARE NOT SUBJECT TO THE CLASSIFICATION ACT, 1923, AS AMENDED.

THE SERVICES WHICH THE BUREAU OF THE CENSUS HAS BEEN CALLED UPON TO FURNISH, AS SHOWN BY THE STATEMENTS ATTACHED TO YOUR LETTER, INCLUDE THE CODING, TABULATING, CALCULATING, EDITING, AND PREPARING OF VARIOUS MAILING LISTS, QUESTIONNAIRES AND SURVEYS FOR THE SELECTIVE SERVICE SYSTEM; THE WAR DEPARTMENT, OFFICE OF THE QUARTERMASTER GENERAL; THE DEPARTMENT OF JUSTICE, BUREAU OF IMMIGRATION AND NATURALIZATION; AND VARIOUS AGENCIES ESTABLISHED WITHIN THE OFFICE FOR EMERGENCY MANAGEMENT. THE ESTIMATED COST OF THE SERVICES WHICH THE BUREAU IS NOW RENDERING, AND THOSE LISTED AS CONTEMPLATED IN THE IMMEDIATE FUTURE, IS SHOWN AS MORE THAN 3 1/2 MILLION DOLLARS, OF WHICH MORE THAN 3 MILLION DOLLARS WOULD BE PAID FROM FUNDS TRANSFERRED TO THE BUREAU BY THE OFFICE FOR EMERGENCY MANAGEMENT.

IN THE ABSENCE OF SPECIAL STATUTORY PROVISIONS, THE PERFORMANCE OF SERVICES BY ONE GOVERNMENT DEPARTMENT FOR ANOTHER IS GOVERNED BY THE GENERAL PROVISIONS OF SECTION 7 OF THE ACT OF MAY 21, 1920, 41 STAT. 613, AS AMENDED BY SECTION 601 OF THE ACT OF JUNE 30, 1932, 47 STAT. 417, 31 U.S.C. 686. THE AMENDED SECTION, INSOFAR AS HERE MATERIAL, PROVIDES:

(A) ANY EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT OF THE GOVERNMENT, OR ANY BUREAU OR OFFICE THEREOF, IF FUNDS ARE AVAILABLE THEREFOR AND IF IT IS DETERMINED BY THE HEAD OF SUCH EXECUTIVE DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE TO BE IN THE INTEREST OF THE GOVERNMENT SO TO DO, MAY PLACE ORDERS WITH ANY OTHER SUCH DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE FOR MATERIALS, SUPPLIES, EQUIPMENT, WORK, OR SERVICES, OF ANY KIND THAT SUCH REQUISITIONED FEDERAL AGENCY MAY BE IN A POSITION TO SUPPLY OR EQUIPPED TO RENDER, AND SHALL PAY PROMPTLY BY CHECK TO SUCH FEDERAL AGENCY AS MAY BE REQUISITIONED, UPON ITS WRITTEN REQUEST, EITHER IN ADVANCE OR UPON THE FURNISHING OR PERFORMANCE THEREOF, ALL OR PART OF THE ESTIMATED OR ACTUAL COST THEREOF AS DETERMINED BY SUCH DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE AS MAY BE REQUISITIONED; BUT PROPER ADJUSTMENTS ON THE BASIS OF THE ACTUAL COST OF THE MATERIALS, SUPPLIES, OR EQUIPMENT FURNISHED, OR WORK OR SERVICES PERFORMED, PAID FOR IN ADVANCE, SHALL BE MADE AS MAY BE AGREED UPON BY THE DEPARTMENTS, ESTABLISHMENTS, BUREAUS, OR OFFICES CONCERNED: PROVIDED, HOWEVER, THAT IF SUCH WORK OR SERVICES CAN BE AS CONVENIENTLY OR MORE CHEAPLY PERFORMED BY PRIVATE AGENCIES SUCH WORK SHALL BE LET BY COMPETITIVE BIDS TO SUCH PRIVATE AGENCIES. BILLS RENDERED, OR REQUESTS FOR ADVANCE PAYMENTS MADE, PURSUANT TO ANY SUCH ORDER, SHALL NOT BE SUBJECT TO AUDIT OR CERTIFICATION IN ADVANCE OF PAYMENT.

THE SECOND DEFICIENCY APPROPRIATION ACT, 1941, PUBLIC LAW 150, APPROVED JULY 3, 1941, 55 STAT. 543, APPROPRIATED $36,500,000 FOR ALL EXPENSES NECESSARY, IN THE DISCRETION OF THE PRESIDENT, TO ENABLE THE OFFICE FOR EMERGENCY MANAGEMENT, AND SUBORDINATE OR RELATED BODIES IN THE WORK OF NATIONAL DEFENSE, TO CARRY OUT CERTAIN FUNCTIONS AND ACTIVITIES IDENTIFIED IN THE ACT. INSOFAR AS HERE MATERIAL, THE ACT CONTAINED THE FOLLOWING LANGUAGE:

* * * NOT TO EXCEED $100,000 FOR TEMPORARY EMPLOYMENT OF PERSONS BY CONTRACT OR OTHERWISE WITHOUT REGARD TO THE CIVIL-SERVICE LAWS OR THE CLASSIFICATION ACT OF 1923, AS AMENDED; * * * THE SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, PUBLIC LAW 282, APPROVED OCTOBER 28, 1941, 55 STAT. 747, AND THE THIRD SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1942, PUBLIC LAW 353, APPROVED DECEMBER 17, 1941, 55 STAT. 818, APPROPRIATED ADDITIONAL FUNDS FOR THE OFFICE FOR EMERGENCY MANAGEMENT. WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, SUCH ADDITIONAL FUNDS WERE MADE AVAILABLE "SUBJECT TO THE PROVISIONS AND LIMITATIONS" MADE APPLICABLE TO THE APPROPRIATION FOR THE OFFICE FOR EMERGENCY MANAGEMENT AS CONTAINED IN PUBLIC LAW 150, SUPRA.

WHERE WORK CAN BE PERFORMED BY A DEPARTMENT OR AGENCY WITH ITS OWN FUNDS AND ITS OWN FACILITIES AS WELL AS IT COULD BE PERFORMED BY ANOTHER DEPARTMENT OR AGENCY, FUNDS COULD NOT LEGALLY BE TRANSFERRED TO SUCH OTHER DEPARTMENT OR AGENCY MERELY FOR THE PURPOSE OF AVOIDING RESTRICTIONS IMPOSED UPON THE TRANSFERRING AGENCY IN THE EMPLOYMENT OF PERSONNEL. HOWEVER, IT IS APPARENT FROM THE DESCRIPTION OF THE PROJECTS HERE INVOLVED THAT THEIR EXECUTION WILL REQUIRE SERVICES OF A TYPE FOR WHICH THE EMPLOYEES OF THE BUREAU OF THE CENSUS, BY REASON OF THEIR TRAINING FOR THE REGULAR WORK OF THE BUREAU, ARE ESPECIALLY QUALIFIED. ALSO, IT IS UNDERSTOOD THE EQUIPMENT USED BY THE BUREAU IN THE PERFORMANCE OF ITS NORMAL FUNCTIONS WOULD BE USED IN THE RENDITION OF THE SERVICES HERE INVOLVED. FURTHERMORE, IT APPEARS THAT MUCH, IF NOT ALL, OF THE WORK HERE CONTEMPLATED WOULD BE BASED UPON STATISTICAL DATA, ALREADY OBTAINED BY THE BUREAU, WHICH IS NOT AVAILABLE ELSEWHERE.

UNDER THE CIRCUMSTANCES HERE PRESENT, WHERE THE NECESSITY FOR PERFORMANCE OF SERVICES BY ANOTHER AGENCY IS CLEARLY DEMONSTRATED, THE TRANSFERRED APPROPRIATION WOULD APPEAR TO BE AVAILABLE, UNDER THE ABOVE QUOTED PROVISIONS OF THE ACT OF MAY 21, 1920, AS AMENDED, FOR PERFORMANCE OF THE SERVICES IN ACCORDANCE WITH THE EMPLOYMENT AUTHORITY VESTED IN THE AGENCY TO WHICH THE APPROPRIATION IS TRANSFERRED, AND SUCH HAS BEEN THE VIEW HERETOFORE ADOPTED BY THE ACCOUNTING OFFICERS. SEE 15 COMP. GEN. 154, 155, TO THE EFFECT THAT THE QUESTION WHETHER THE CLASSIFICATION ACT SHALL GOVERN THE SALARY RATES OF EMPLOYEES PAID FROM FUNDS PROPERLY TRANSFERRED UNDER THE PROVISIONS OF SAID ACT IS TO BE DETERMINED BY THE LAWS APPLICABLE TO THE AGENCY RECEIVING THE FUNDS, RATHER THAN BY THOSE RELATING TO THE TRANSFERRING AGENCY.

THERE HAVE NOT BEEN OVERLOOKED, IN THIS CONNECTION, CERTAIN DECISIONS TO THE EFFECT THAT FUNDS TRANSFERRED UNDER THE ACT OF MAY 21, 1920, AS AMENDED, SUPRA, REMAIN SUBJECT TO THE LIMITATIONS AND RESTRICTIONS FIXED BY THE APPROPRIATION FROM WHICH THEY ARE TRANSFERRED. SEE 21 COMP. GEN. 254; 18 ID. 489; 17 ID. 900; 16 ID. 3. HOWEVER, SUCH DECISIONS INVOLVED CASES IN WHICH IT WAS SOUGHT TO EMPLOY TRANSFERRED FUNDS FOR PURPOSES FOR WHICH THE FUNDS WOULD NOT HAVE BEEN AVAILABLE IN THE TRANSFERRING AGENCY; OR WHERE IT WAS SOUGHT TO USE TRANSFERRED FUNDS TO EMPLOY PERSONAL SERVICES WHEN SUCH SERVICES COULD NOT HAVE BEEN EMPLOYED (REGARDLESS OF THE METHOD OF APPOINTMENT OR THE RATES OF PAY) BY THE TRANSFERRING AGENCY; OR WHERE THE TRANSFERRED FUNDS WERE DIRECTLY SUBJECT TO RESTRICTIONS REGARDING THE AMOUNT EXPENDABLE THEREFROM FOR PASSENGER-CARRYING AUTOMOBILES, OR FOR PROCUREMENTS WITHOUT ADVERTISING, ETC. WHAT IS INVOLVED IN THE INSTANT MATTER IS ESSENTIALLY DIFFERENT, BEING THE ACCOMPLISHMENT OF CERTAIN OBJECTS FOR WHICH THE FUNDS OF THE TRANSFERRING AGENCY ARE AVAILABLE AND WHICH THE AGENCY TO WHICH THE TRANSFER IS MADE IS EQUIPPED TO ACCOMPLISH BY THE USE OF PERSONNEL AND EQUIPMENT IT ALREADY HAS OR IS OTHERWISE AUTHORIZED TO PROCURE. UNDER SUCH CIRCUMSTANCES, THE CHARGE TO BE MADE BY THE PERFORMING AGENCY AGAINST THE FUNDS OF THE AGENCY DESIRING THE SERVICES--- WHETHER UNDER A REIMBURSEMENT OR ADVANCE-OF FUNDS PROCEDURE--- SHOULD BE ON THE BASIS OF THE RATES OF COMPENSATION WHICH THE PERFORMING AGENCY IS OTHERWISE AUTHORIZED BY LAW TO PAY TO ITS PERSONNEL USED IN THE PERFORMANCE OF THE SERVICES.

I HAVE TO ADVISE, THEREFORE, THAT THE BUREAU OF THE CENSUS MAY ACCEPT TRANSFERS OF FUNDS FROM THE ABOVE-CITED APPROPRIATIONS FOR THE OFFICE FOR EMERGENCY MANAGEMENT FOR SERVICES RENDERED TO THAT OFFICE, NOTWITHSTANDING SUCH FUNDS WILL BE USED BY THE BUREAU TO PAY EMPLOYEES AT RATES OTHER THAN THOSE FIXED BY THE CLASSIFICATION ACT.

WHAT IS SAID HERE WITH RESPECT TO THE APPROPRIATIONS FOR THE OFFICE FOR EMERGENCY MANAGEMENT APPLIES EQUALLY TO THE APPROPRIATIONS FOR THE OTHER AGENCIES MENTIONED ABOVE, ASSUMING THAT THE APPROPRIATIONS OF THOSE AGENCIES ARE OTHERWISE AVAILABLE, FOR THE PERFORMANCE WITHIN SUCH OTHER AGENCIES, OF THE SERVICES TO BE RENDERED BY THE BUREAU.