B-31670, JANUARY 25, 1943, 22 COMP. GEN. 700

B-31670, JANUARY 25, 1943, 22 COMP. GEN. 700

PERSONAL SERVICES - PRIVATE CONTRACT V. GOVERNMENT PERSONNEL - JANITOR SERVICES WHERE, IN CONNECTION WITH JANITOR SERVICES, THE GOVERNMENT FURNISHES ALL SUPPLIES AND EQUIPMENT, SUCH AS BRUSHES, CLEANING SUPPLIES, LADDERS, ETC., LEAVING NOTHING BUT THE LABOR OF THE INDIVIDUAL TO BE FURNISHED, THE SERVICES ARE FOR PERFORMANCE BY GOVERNMENT EMPLOYEES, EITHER FULL OR PART TIME, APPOINTED IN ACCORDANCE WITH THE CIVIL SERVICE RULES AND REGULATIONS, BUT WHERE IT IS ADMINISTRATIVELY DETERMINED TO BE TO THE GOVERNMENT'S ADVANTAGE TO HAVE ALL SUPPLIES AND EQUIPMENT, AS WELL AS THE LABOR, FURNISHED BY CONTRACT, THERE IS NO OBJECTION TO PROCURING THE SERVICES ON A NONPERSONAL SERVICE BASIS, PROVIDED THAT, WHEN APPLICABLE, THERE IS COMPLIANCE WITH THE ADVERTISING, ETC., REQUIREMENTS OF SECTION 3709, REVISED STATUTES.

COMPTROLLER GENERAL WARREN TO THE LIAISON OFFICER, OFFICE FOR EMERGENCY MANAGEMENT, JANUARY 25, 1943:

I HAVE YOUR LETTER OF JANUARY 9, 1943, AS FOLLOWS:

THE CONSTITUENT AGENCIES OF THE OFFICE FOR EMERGENCY MANAGEMENT AND THE OFFICE OF PRICE ADMINISTRATION HAVE ACQUIRED IN VARIOUS LOCALITIES OF THE COUNTRY RENT-FREE QUARTERS TO HOUSE THE LOCAL OFFICES OF THEIRRESPECTIVE AGENCIES. GENERALLY, IN THESE RENT-FREE QUARTERS AND IN A NUMBER OF OFFICES AND WAREHOUSES OBTAINED UNDER LEASE, THE GOVERNMENT IS OBLIGED TO PROVIDE FOR ITS OWN JANITOR SERVICES. BECAUSE, IN MOST CASES, THE TYPE OF JANITOR SERVICES UTILIZED ARE SERVICES OF A NATURE WHICH ARE REQUIRED ONLY INTERMITTENTLY AND BECAUSE OF THE ACUTE SHORTAGE OF MANPOWER, THE OFFICE FOR EMERGENCY MANAGEMENT HAS FOUND IT EXTREMELY DIFFICULT TO RECRUIT ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS THE TYPE OF PERSONNEL REQUIRED TO PERFORM SUCH SERVICES. THUS, IT HAS DEVELOPED TO BE NOT ONLY MORE ECONOMICAL AND ADVANTAGEOUS TO THE GOVERNMENT TO OBTAIN SUCH SERVICES FROM VARIOUS BUILDING MAINTENANCE COMPANIES ON A CONTRACTUAL BASIS RATHER THAN ON A PER ANNUM APPOINTMENT BASIS, BUT, IT IS, IN FACT THE ONLY MEANS BY WHICH SUCH INTERMITTENT SERVICES CAN RELIABLY BE OBTAINED.

THE ACT OF AUGUST 5, 1882, 22 STAT. 255, 5 U.S.C. 46, PROVIDES IN PART:

"NO CIVIL OFFICER, CLERK, DRAUGHTSMAN, COPYIST, MESSENGER, ASSISTANT MESSENGER, * * * OR OTHER EMPLOYEE SHALL BE EMPLOYED AT THE SEAT OF GOVERNMENT IN ANY EXECUTIVE DEPARTMENT OR SUBORDINATE BUREAU OR OFFICE THEREOF OR BE PAID FROM ANY APPROPRIATION MADE FOR CONTINGENT EXPENSES, OR FOR ANY SPECIFIC OR GENERAL PURPOSE, UNLESS SUCH EMPLOYMENT IS AUTHORIZED AND PAYMENT THEREFOR PROVIDED IN THE LAW GRANTING THE APPROPRIATION * * * " ( ITALICS SUPPLIED.)

THIS STATUTE WAS ENACTED TO PROHIBIT THE CONTRACTING FOR SERVICES OF A PERSONAL NATURE AT THE SEAT OF THE GOVERNMENT. SO FAR AS THIS OFFICE HAS BEEN ABLE TO ASCERTAIN THIS LAW HAS NOT BEEN AMENDED TO EXTEND THE SAME PROHIBITION TO THE FIELD SERVICE OF THE VARIOUS EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS.

IN A DECISION RENDERED TO THE VETERAN'S BUREAU (6 C.G. 364) IT WAS HELD:

"THE TRANSLATING OF FOREIGN LANGUAGES INTO ENGLISH AND VICE VERSA IS A PERSONAL SERVICE TO BE PERFORMED BY REGULAR EMPLOYEES OF THE GOVERNMENT TO BE APPOINTED IN ACCORDANCE WITH THE CIVIL SERVICE RULES AND REGULATIONS AND AT RATES OF COMPENSATION FIXED BY THE CLASSIFICATION ACT AND THE CONTRACTING FOR SUCH SERVICES WAS IN CONTRAVENTION OF THE ACT OF AUGUST 5, 1882, 22 STAT. 5.'

IN ANOTHER DECISION RENDERED TO THE VETERAN'S BUREAU (6 C.G. 474) IT WAS HELD:

"JANITOR SERVICES FOR PREMISES LEASED TO THE GOVERNMENT, WHEN NOT REQUIRED TO BE PERFORMED BY THE LESSOR UNDER THE PROVISIONS OF THE LEASE, IS A PERSONAL SERVICE TO BE PERFORMED BY REGULAR EMPLOYEES OF THE GOVERNMENT ENGAGED BY DIRECT EMPLOYMENT IN ACCORDANCE WITH THE CLASSIFICATION ACT.'

THE FIRST DECISION CITED ABOVE WAS RENDERED IN RESPECT TO SERVICES PERFORMED AT THE SEAT OF THE GOVERNMENT. THE SECOND DECISION WHICH WAS RENDERED IN RESPECT TO SERVICES PERFORMED IN THE FIELD SERVICE WAS PREDICATED ON THE PREMISE THAT "THE POSITION OF JANITOR AND LIKE POSITIONS HAVE BEEN CLASSIFIED IN THE CUSTODIAL GRADES UNDER THE CLASSIFICATION ACT OF 1923 WHICH WAS EXTENDED TO THE FIELD SERVICE OF THE VETERAN'S BUREAU BY THE ACT OF DECEMBER 6, 1924, 43 STAT. 705.' THIS ACT APPROPRIATED AMONG OTHER FUNDS FOR OTHER GOVERNMENT AGENCIES $1,225,000 FOR THE VETERAN'S BUREAU TO ACCOMPLISH THE FOLLOWING PURPOSE: "TO ENABLE THE HEADS OF THE SEVERAL DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS TO ADJUST THE COMPENSATION OF CIVILIAN EMPLOYEES IN CERTAIN FIELD SERVICES TO CORRESPOND, SO FAR AS MAY BE PRACTICABLE, TO THE RATES ESTABLISHED BY THE CLASSIFICATION ACT OF 1923 FOR POSITIONS IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF LUMBIA.' THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005 CONTAINING SUBSTANTIALLY THE SAME PROVISION WAS ENACTED TO ACCOMPLISH THE SAME PURPOSE FOR ALL OF THE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS OF THE FEDERAL GOVERNMENT.

THESE TWO ACTS ARE SALARY ADJUSTMENT LEGISLATION AND WERE PASSED TO EFFECT AN EQUITABLE SALARY ADJUSTMENT IN THE FIELD SERVICE OF THE FEDERAL GOVERNMENT COMPARABLE WITH THAT ESTABLISHED IN WASHINGTON UNDER THE CLASSIFICATION ACT OF 1923. THERE IS NOTHING CONTAINED IN THE LANGUAGE OF THESE STATUTES FROM WHICH THERE COULD BE DEDUCTED THE INTENT TO EXTEND TO THE FIELD SERVICE THE PROHIBITION CONTAINED IN THE ACT OF AUGUST 5, 1882, 5 U.S.C. 46, SUPRA. MOREOVER, THE PROHIBITION AGAINST CONTRACTING FOR PERSONAL SERVICES WAS NOT CONTAINED IN THE CLASSIFICATION ACT OF 1923 AND THE EXTENSION OF THAT ACT TO THE FIELD SERVICE WOULD NOT AFFECT THE ACT OF AUGUST 5, 1882.

THE CLASSIFICATION ACT AND RULES AND REGULATIONS PROMULGATED BY THE CIVIL SERVICE COMMISSION PURSUANT THERETO, CONTEMPLATE THAT IN THE APPOINTMENT OF PERSONNEL THE FEDERAL AGENCIES AFFECTED THEREBY SHALL CONFORM TO THE PRESCRIBED RULES AND REGULATIONS, BUT THERE IS NO PROHIBITION CONTAINED IN THE CLASSIFICATION ACT AGAINST CONTRACTING FOR PERSONAL SERVICES. THIS PROHIBITION IS CONTAINED IN THE ACT OF AUGUST 5, 1882, AS PREVIOUSLY STATED.

RECOGNITION IS GIVEN TO THIS PRINCIPLE IN 17 COMP. GEN. 56 IN WHICH AN ACTING COMPTROLLER IN A DECISION RENDERED TO THE SOCIAL SECURITY BOARD HELD THAT COMMERCIAL MESSENGER SERVICE COULD BE CONTRACTED FOR IN THE FIELD. IN THIS DECISION IT WAS HELD:

"THE DECISION IN 3 C.G. 436 WAS SPECIFICALLY DIRECTED TO A SITUATION IN A FIELD OFFICE WHICH MAINTAINED NO REGULAR MESSENGERS. WHERE SUCH A SITUATION PREVAILS IN A FIELD OFFICE, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO THE CONTRACTING WITH AN OUTSIDE AGENCY FOR MESSENGER SERVICE. THE SAID SITUATION IS NOT FOR APPLICATION, HOWEVER, AT THE SEAT OF THE GOVERNMENT, WHERE REGULAR MESSENGER FORCES ARE MAINTAINED.' ( ITALICS SUPPLIED.)

IN THIS DECISION A DISTINCTION IS MADE BETWEEN CONTRACTING FOR PERSONAL SERVICES IN THE FIELD SERVICE AND AT THE SEAT OF THE GOVERNMENT. FROM THE SEVERAL DECISIONS RENDERED ON THE SUBJECT IT IS EVIDENT THAT BOTH JANITOR AND MESSENGER SERVICES ARE CONSIDERED OF A PERSONAL NATURE AND THAT WHILE THE EMPLOYMENT OF THESE TYPES OF SERVICES ON A CONTRACTUAL BASIS AT THE SEAT OF THE GOVERNMENT CONTRAVENES THE ACT OF AUGUST 5, 1882, THERE IS, IN FACT, NO STATUTORY PROHIBITION AGAINST CONTRACTING FOR SUCH SERVICES IN THE FIELD OFFICES.

IN LIGHT OF THE SPECIFIC LANGUAGE IN THIS ACT LIMITING THE PROHIBITION TO THE SEAT OF THE GOVERNMENT AND IN VIEW OF THE ECONOMY AND ADVANTAGE INURING TO THE GOVERNMENT, WE WOULD APPRECIATE YOUR ADVISING US WHETHER YOUR OFFICE WILL BE REQUIRED TO OBJECT TO THE CONTRACTING FOR JANITOR SERVICES BY THE OFFICE FOR EMERGENCY MANAGEMENT FOR AND ON BEHALF OF THE FIELD OFFICES OF ITS CONSTITUENT AGENCIES AND THE OFFICE OF PRICE ADMINISTRATION.

THAT PORTION OF THE ACT OF AUGUST 5, 1882, 22 STAT. 255, QUOTED IN YOUR LETTER HAS NO APPLICATION TO THE FIELD SERVICE, 21 COMP. DEC. 709; 5 COMP. GEN. 272; 6 ID. 180. THE OBJECTION TO CONTRACTING WITH A FIRM OR A THIRD PARTY FOR PERSONAL SERVICES IS NOT BASED UPON THAT ACT, BUT UPON THE FACT THAT SUCH CONTRACTS DELEGATE TO THE CONTRACTOR THE RIGHT TO SELECT PERSONS TO RENDER SERVICES FOR THE GOVERNMENT WHICH WOULD BE IN CONTRAVENTION OF SECTION 169, REVISED STATUTES, AS AMENDED BY THE ACT OF JUNE 26, 1930, 46 STAT. 817, WHICH REQUIRES THAT ALL APPOINTMENTS OF OFFICERS AND EMPLOYEES BE MADE BY THE HEAD OF THE DEPARTMENT OR AGENCY, OR, WITH RESPECT TO FIELD SERVICES, BY A SUBORDINATE OFFICER TO WHOM THAT DUTY HAS BEEN DELEGATED. ALSO, THE SERVICES RENDERED BY THE CONTRACTOR'S EMPLOYEES WOULD NOT BE SUBJECT TO DIRECT SUPERVISION SUCH AS IS GENERALLY EXERCISED OVER FEDERAL EMPLOYEES, 6 COMP. GEN. 474; 13 ID. 351; 15 ID. 951; 17 ID. 300; 21 ID. 388.

ACCORDINGLY, WHERE JANITOR SERVICES ARE EXCLUSIVELY PERSONAL, THAT IS TO SAY, WHERE THE GOVERNMENT AGENCY FURNISHES ALL SUPPLIES AND EQUIPMENT, LEAVING NOTHING BUT THE LABOR OF THE INDIVIDUAL TO BE FURNISHED, THE MATTER IS ONE FOR PERFORMANCE BY GOVERNMENT EMPLOYEES, EITHER WHOLE OR PART TIME, APPOINTED IN ACCORDANCE WITH THE CIVIL SERVICE RULES AND REGULATIONS, 6 COMP. GEN. 474; A-18201, MAY 16, 1927; A-82710, JANUARY 6, 1937; A-83365, MAY 18, 1937. HOWEVER, WHERE IT IS ADMINISTRATIVELY DETERMINED TO BE TO THE ADVANTAGE OF THE UNITED STATES TO HAVE SUPPLIES AND EQUIPMENT, SUCH AS BRUSHES, CLEANING SUPPLIES, LADDERS, ET CETERA, AS WELL AS THE LABOR, FURNISHED BY CONTRACT, THIS OFFICE WOULD NO BE REQUIRED TO OBJECT TO PROCURING JANITOR SERVICES IN THAT MANNER--- I.E., ON A NON- PERSONAL SERVICE BASIS--- PROVIDED, OF COURSE, THAT, WHEN APPLICABLE, THE PROVISIONS OF SECTION 3709, REVISED STATUTES, ARE DULY COMPLIED WITH. COMP. GEN. 180; 19 ID. 49; 21 ID. 486; B-23640, FEBRUARY 16, 1942, B- 30181, DECEMBER 21, 1942.