B-45296, NOVEMBER 28, 1944, 24 COMP. GEN. 414

B-45296, NOVEMBER 28, 1944, 24 COMP. GEN. 414

PERSONAL SERVICES - LECTURES AT SCHOOLS OF INSTRUCTION AN INDIVIDUAL ENGAGED UNDER CONTRACT TO PREPARE AND DELIVER A LECTURE OR SERIES OF LECTURES AT AN ARMY MILITARY SCHOOL ON DEFINITE DATES FOR A STIPULATED SUM IS NOT TO BE REGARDED AS PERFORMING SERVICES UNDER THE SUPERVISION AND CONTROL OF THE GOVERNMENT SO AS TO BE CONSIDERED AS EMPLOYED ON A PERSONAL SERVICE BASIS, AND, THEREFORE, THE COMPENSATION STIPULATED IN THE CONTRACT FOR HIS SERVICES IS NOT SUBJECT TO THE PROVISIONS OF SECTION 9 OF THE MILITARY APPROPRIATION ACT, 1944, LIMITING TO $25 PER DAY THE AMOUNT PAYABLE TO TECHNICAL AND PROFESSIONAL PERSONNEL EMPLOYED BY CONTRACT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, NOVEMBER 28, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 21, 1944, AS FOLLOWS:

A SCHOOL OF MILITARY GOVERNMENT WAS ESTABLISHED IN THE EARLY PART OF 1942 AT CHARLOTTESVILLE, VIRGINIA, UNDER THE SUPERVISION OF THE OFFICE OF THE PROVOST MARSHAL GENERAL FOR THE PURPOSE OF TRAINING OFFICERS TO GOVERN OCCUPIED COUNTRIES. THESE OFFICERS ARE BEING AND WILL BE SENT TO ALL PARTS OF THE WORLD AND THE COURSE OF TRAINING NATURALLY COVERS A WIDELY DIVERSIFIED FIELD OF FOREIGN CUSTOMS, LAWS, GOVERNMENT CIVIL ADMINISTRATION AND ECONOMICS. MOST OF THE INSTRUCTORS AT THE SCHOOL ARE OFFICERS OF THE ARMY, BUT FROM TIME TO TIME, IT HAS BEEN DEEMED ESSENTIAL TO THE SUCCESSFUL PROSECUTION OF THE PROGRAM TO ARRANGE FOR SPECIAL LECTURES TO BE GIVEN BY PROFESSORS AND OTHER INDIVIDUALS WHO ARE RECOGNIZED AUTHORITIES IN THEIR RESPECTIVE FIELDS.

IN ORDER TO OBTAIN SUCH LECTURERS, A PROGRAM HAS BEEN EVOLVED UNDER WHICH A WRITTEN AGREEMENT IS ENTERED INTO WITH THE LECTURER BY THE TERMS OF WHICH HE AGREES TO PREPARE AND DELIVER A LECTURE OR A SPECIFIED NUMBER OF LECTURES ON A GIVEN SUBJECT FOR WHICH, DEPENDING UPON THE DISTANCE OF HIS RESIDENCE FROM CHARLOTTESVILLE AND OTHER FACTORS HE WILL BE PAID A FLAT FEE. THIS FEE COVERS HIS ENTIRE CHARGE FOR NECESSARY RESEARCH (LIBRARY FACILITIES AT CHARLOTTESVILLE DO NOT PROVIDE THE NECESSARY SOURCE MATERIAL FOR MANY OF THE SUBJECTS) AND TO PAY ALL OF HIS TRAVEL AND LIVING EXPENSES WHILE PREPARING AND DELIVERING THE LECTURES. THE USUAL FEE PAID IS $100 FOR THE FIRST AND $50 FOR EACH SUCCEEDING LECTURE, WHICH IS SIMILAR TO THE PROGRAM OF THE ARMY WAR COLLEGE EXCEPT THAT THE WAR COLLEGE ALLOWS THE SAME AMOUNT OF EACH LECTURE.

DURING THE EARLY PART OF THIS PROGRAM THE EXPENSES FOR LECTURERS WERE FINANCED OUT OF AN ALLOTMENT OF FUNDS FROM THE APPROPRIATION " CONTINGENCIES OF THE ARMY," AN ITEM CARRIED IN THE APPROPRIATION ACT FOR THE FISCAL YEAR 1942, AND IN SUCCEEDING YEARS. HOWEVER, IN 1943 THE ANNUAL APPROPRIATION ACT FOR THAT FISCAL YEAR CONTAINED THE FOLLOWING LANGUAGE UNDER " QUARTERMASTER CORPS AND TRANSPORTATION SERVICES," SUBITEM " INCIDENTAL EXPENSES OF THE ARMY: "

"* * * FOR SUPPLIES, SERVICES, AND OTHER EXPENSES ESSENTIAL IN CONDUCTING INSTRUCTION OF THE ARMY IN TACTICAL OR SPECIAL ACTIVITIES * * *.'

SOMETIME THEREAFTER THE EXPENSES OF LECTURERS WERE PAID FOR OUT OF THIS APPROPRIATION, AND HAVE CONTINUED TO BE SO PAID OUT OF FUNDS APPROPRIATED UNDER THE SAME ITEM OF APPROPRIATION IN APPROPRIATION ACTS FOR THE FISCAL YEARS 1944 AND 1945. IN THIS CONNECTION ATTENTION IS INVITED TO THE HOUSE HEARINGS ON THE APPROPRIATION BILL FOR THE MILITARY ESTABLISHMENT FOR THE FISCAL YEAR 1943, AT PAGE 150, IN WHICH AN EXPLANATION OF THE NECESSITY FOR THE INCLUSION OF THE ABOVE QUOTED LANGUAGE IN THE APPROPRIATION ITEM IN QUESTION FOR THAT YEAR THE FOLLOWING TESTIMONY OCCURRED:

" MR. SNYDER. THAT IS MADE NECESSARY FOR WHAT REASON?

" COL. MOORE. BECAUSE ONLY CERTAIN EXPENSES OF CERTAIN SCHOOLS ARE SPECIFICALLY PROVIDED FOR AND WE HAVE MANY SCHOOLS AND MANY INSTRUCTIONAL ACTIVITIES BEING INITIATED FROM TIME TO TIME. WE MUST OF NECESSITY PAY FOR THEM FROM SOME APPROPRIATION AND IT APPEARS APPROPRIATE TO PAY FOR SUCH ACTIVITIES FROM THIS APPROPRIATION.'

THE "CERTAIN SCHOOLS" REFERRED TO IN THE ABOVE EXCERPT FROM TESTIMONY BEFORE THE HOUSE APPROPRIATION COMMITTEE, HAS REFERENCE, FOR ILLUSTRATION TO THE ARMY WAR COLLEGE AND THE MILITARY ACADEMY, WHICH ARE GENERAL SERVICE SCHOOLS MAINTAINED ON A PERMANENT BASIS. IT WILL BE NOTED THAT THE APPROPRIATIONS FOR THESE SCHOOLS CONTAINED IN EACH INSTANCE LANGUAGE SPECIFICALLY COVERING ,EXPENSES OF SPECIAL LECTURES.' HOWEVER, BY REFERENCE TO THE ABOVE QUOTED TESTIMONY IT APPEARS THAT THE CONGRESS WAS BEING ASKED TO INCLUDE IN GENERAL LANGUAGE UNDER " INCIDENTAL EXPENSES OF THE ARMY" ALL EXPENSES FOR SERVICES AND OTHER EXPENSES ESSENTIAL TO CONDUCTING INSTRUCTION, WHICH LANGUAGE IT WOULD APPEAR IS SUFFICIENTLY WIDE TO COVER EXPENSES OF SPECIAL LECTURES, WITHOUT SPECIFIC MENTION THEREOF.

HOWEVER, ATTENTION IS INVITED TO NOTICE OF EXCEPTION BY THE GENERAL ACCOUNTING OFFICE TO PAYMENT ON VOUCHER NO. 22398 IN THE ACCOUNTS OF B. H. GRABAN, COLONEL, F. D., DATED SEPTEMBER 2, 1943, IN THE AMOUNT OF $200, OF WHICH $125 WAS SUSPENDED FOR THE FOLLOWING REASON:

"PAYMENT OF COMPENSATION TO INDIVIDUALS IN EXCESS OF $25 IS NOT AUTHORIZED, PURSUANT TO LIMITATIONS OF SECTION IX OF THE MILITARY APPROPRIATION ACT OF 1944, APPROVED JULY 1, 1943, PUBLIC LAW 108--- 78TH CONGRESS.' IN THE CASE OF THIS SUSPENSION, PROFESSOR ARNOLD WOLFERS OF YALE UNIVERSITY WAS ENGAGED UNDER AN AGREEMENT WHEREBY HE DELIVERED ONE LECTURE ON AUGUST 5, 1943, AND TWO LECTURES ON AUGUST 7, 1943. THE AGREEMENT PROVIDED THAT HE SHOULD RECEIVE $100 FOR THE FIRST AND $50 FOR THE SECOND AND THIRD LECTURES. THESE PAYMENTS COVERED ALL OF HIS NECESSARY RESEARCH IN THE PREPARATION OF THE LECTURES AND ALSO HIS TRAVELING AND LIVING EXPENSES. A COPY OF THE FORM OF AGREEMENT USED IN THIS AND OTHER SIMILAR CASES IS ATTACHED FOR YOUR INFORMATION.

HAVING REFERENCE TO THE GROUND ON WHICH THE SUSPENSION IN QUESTION IS MADE, IT IS NOT FELT THAT PROFESSOR WOLFERS AND OTHER SIMILAR LECTURERS ARE "TECHNICAL AND PROFESSIONAL PERSONNEL" WITHIN THE CONTEMPLATION OF SECTION IX OF THE MILITARY APPROPRIATION ACT. THIS SECTION AUTHORIZES THE SECRETARY OF WAR, WITHOUT REFERENCE TO CIVIL SERVICE, CLASSIFICATION AND OTHER LAWS, TO EMPLOY TECHNICAL AND PROFESSIONAL PERSONNEL. THE CONTRACTS UNDER WHICH THE SPECIAL LECTURES ARE OBTAINED DO NOT CONSTITUTE CONTRACTS OF EMPLOYMENT BUT RATHER AGREEMENTS UNDER WHICH LECTURES ESSENTIAL TO THE ADEQUATE INSTRUCTION OF THE STUDENTS AT THE SCHOOL ARE OBTAINED.

IF THE EXCEPTION TAKEN BY THE GENERAL ACCOUNTING OFFICE IS SOUND, IT WILL BE NECESSARY FOR THE SECRETARY OF WAR TO APPOINT THE LECTURERS UNDER THE PROVISIONS OF SECTION IX AND INCLUDE IN THE PERIOD OF THEIR APPOINTMENT TIME SPENT IN RESEARCH AND PREPARATION AS WELL AS TIME SPENT IN TRAVEL TO AND FROM THE SCHOOL. ALSO, UNDER THE PROVISIONS OF THE MILITARY APPROPRIATION ACT OF 1945, TRAVELING EXPENSES AND A PER DIEM IN LIEU OF SUBSISTENCE WHILE AWAY FROM HOME MAY BE PAID. IT IS BELIEVED THAT PAYMENT ON THIS BASIS RATHER THAN THE BASIS UNDER WHICH THE SCHOOL OF MILITARY GOVERNMENT HAS BEEN OPERATING, WOULD RESULT IN AN INCREASED COST TO THE GOVERNMENT, AND A MUCH MORE SATISFACTORY BASIS FOR OBTAINING THE ESSENTIAL INSTRUCTION.

FURTHERMORE, SINCE IT IS NOT IMPROBABLE THAT MANY OF THE LECTURES ARE BASED IN PART AT LEAST UPON A LIFETIME OF STUDY, EXPERIENCE AND RESEARCH-- - IN FACT, THE SERVICES OF THE INDIVIDUALS IN QUESTION WOULD NOT BE DESIRABLE IF THIS WAS NOT THE CASE--- IT MAY NOT BE FEASIBLE IN A GIVEN CASE FOR A LECTURER TO STATE THE ACTUAL TIME SPENT BY HIM IN PREPARATION. HE MAY, THEREFORE, BE RELUCTANT TO REQUEST COMPENSATION ON A TIME BASIS AND SINCE THE $25 PER DIEM AUTHORIZED UNDER SECTION IX IS OBVIOUSLY INADEQUATE IF ONLY THE DAYS ON WHICH THE LECTURES ARE DELIVERED IS CONSIDERED, IT MAY NOT BE POSSIBLE TO OBTAIN THE DESIRED SERVICES. UNDER CONDITIONS EXISTING AT THIS TIME, THE LENGTH OF TRAINING HAS, OF NECESSITY, BEEN CURTAILED AND IT IS ESSENTIAL THAT THE BEST INSTRUCTION POSSIBLE BE GIVEN TO THE STUDENTS. IF THE ASSISTANCE OF RECOGNIZED AUTHORITIES IN THE SPECIALIZED FIELDS INVOLVED ARE NOT READILY AVAILABLE, THE SUCCESSFUL PROSECUTION OF THE ENTIRE PROGRAM WILL BE GREATLY HAMPERED.

IN CONNECTION WITH THE OBTAINING OF INSTRUCTION UPON A FEE BASIS, IT WAS SUGGESTED IN YOUR DECISION OF OCTOBER 5, 1942 (22 COMP. GEN. 362), THAT IN ORDER TO AVOID THE PROHIBITION OF THE DUAL COMPENSATION ACT OF MAY 10, 1916,"THERE WOULD BE NO LEGAL OBJECTION TO EMPLOYING AND PAYING FEDERAL EMPLOYEES FEES FOR TEACHING SERVICES * * * IF SUCH FEESARE FIXED BY REGULATION AND NOT COMPUTED ON A PER DIEM OR OTHER TIME BASIS.' THIS DECISION WOULD SEEM TO RECOGNIZE THE LEGALITY OF OBTAINING SERVICES UPON A FEE BASIS FOR THE PURPOSE OF AVOIDING THE PROHIBITION OF THE DUAL COMPENSATION ACT AND THERE WOULD APPEAR TO BE NO REQUIREMENT THAT THE PRINCIPLE OF THAT DECISION BE LIMITED TO SUCH PURPOSE.

YOUR CONSIDERATION OF THE PROBLEM HEREIN PRESENTED IS RESPECTFULLY REQUESTED AND IT IS HOPED THAT YOU MAY ISSUE INSTRUCTIONS LOOKING TO THE REMOVAL OF THE NOTICE OF EXCEPTION HEREIN REFERRED TO, AND, IN ORDER THAT THE WAR DEPARTMENT MAY ISSUE APPROPRIATE INSTRUCTIONS IN THE PREMISES, THAT YOU MAY FIND IT POSSIBLE TO APPROVE THE PRESENT METHOD OF OBTAINING THE SERVICES OF LECTURERS, AS DISCUSSED ABOVE.

SINCE THE UNCERTAINTY SURROUNDING THE AUTHORITY TO SO ENGAGE THESE SERVICES IS NECESSARILY IMPEDING THE PROGRAM, YOUR EARLY CONSIDERATION OF THIS QUESTION INVOLVED WILL BE APPRECIATED.

THE AGREEMENT WITH PROFESSOR WOLFERS, IS, IN PERTINENT PART, AS FOLLOWS:

IT GIVES ME GREAT PLEASURE TO INVITE YOU TO COME TO THE SCHOOL OF MILITARY GOVERNMENT TO DELIVER THREE (3) LECTURES ON 5, 6, AND 7 AUGUST 1943, ON THE SUBJECT OF GERMANY.

WHILE OUR APPROPRIATIONS ARE SUCH THAT WE ARE NOT ABLE TO OFFER YOU COMPENSATION COMMENSURATE WITH THE BENEFITS THIS INSTITUTION WILL RECEIVE FROM THIS GROUP OF LECTURES BY YOU, NOR WITH YOUR EFFORTS IN PREPARATION AND DELIVERY THEREOF, WE CAN OFFER YOU THE SUM OF $200.00 FOR THE LECTURES AS COMPENSATION FOR YOUR CONTRIBUTION TO OUR WORK AND WHICH, I TRUST, WILL COVER THE EXPENSE INVOLVED IN YOUR APPEARANCE AT THE SCHOOL OF MILITARY GOVERNMENT.

THE UNCERTAINTY CONCERNING THE AUTHORITY SO TO ENGAGE THE SERVICES OF SUCH LECTURERS APPEARS TO HAVE ARISEN IN VIEW OF SECTION 9 OF THE MILITARY APPROPRIATION ACT OF 1944, 57 STAT. 368, WHICH PROVIDES:

WHENEVER, DURING THE FISCAL YEAR ENDING JUNE 30, 1944, THE SECRETARY OF WAR SHOULD DEEM IT TO BE ADVANTAGEOUS TO THE NATIONAL DEFENSE, AND IF IN HIS OPINION THE EXISTING FACILITIES OF THE WAR DEPARTMENT ARE INADEQUATE, HE IS HEREBY AUTHORIZED TO EMPLOY, BY CONTRACT OR OTHERWISE, WITHOUT REFERENCE TO SECTION 3709, REVISED STATUTES, CIVIL SERVICE OR CLASSIFICATION LAWS, OR SECTION 5 OF THE ACT OF APRIL 6, 1914 (38 STAT. 335), AND AT SUCH RATES OF COMPENSATION (NOT TO EXCEED $25 PER DAY FOR INDIVIDUALS) AS HE MAY DETERMINE, THE SERVICES OF ARCHITECTS, ENGINEERS, OR FIRMS OR CORPORATIONS THEREOF, AND OTHER TECHNICAL AND PROFESSIONAL PERSONNEL AS MAY BE NECESSARY. (ITALICS SUPPLIED.)

THE QUESTION APPEARS TO BE WHETHER, UNDER THE ABOVE-QUOTED INFORMAL CONTRACT, THE CONTRACTOR BECAME AN EMPLOYEE OF THE GOVERNMENT PAYABLE AT NOT TO EXCEED $25 A DAY IN ACCORDANCE WITH THE LIMITATION IN THE STATUTORY PROVISION QUOTED ABOVE OR WAS PROPERLY PAID THE AMOUNT STIPULATED IN THE CONTRACT FROM THE APPROPRIATION " SUPPLIES AND TRANSPORTATION, ARMY, 1942- 1944," PURSUANT TO THE PROVISION THEREIN "FOR SUPPLIES, SERVICES, AND OTHER EXPENSES ESSENTIAL IN CONDUCTING INSTRUCTION OF THE ARMY IN TACTICAL OR SPECIAL ACTIVITIES * * *"

AGREEMENTS WITH INDIVIDUALS FOR PERSONAL SERVICES AS DISTINGUISHED FROM NONPERSONAL SERVICES HAVE BEEN DISCUSSED IN NUMEROUS DECISIONS OF THIS OFFICE, AND THE DISTINCTION PLAINLY WAS DRAWN IN 23 COMP. GEN. 425, 429, BETWEEN " PERSONS AUTHORIZED TO BE AND WHO ARE EMPLOYED UNDER AN INSTRUMENT DESIGNATED AS A "CONTRACT" AND WHO PERFORM THEIR WORK UNDER THE SUPERVISION AND CONTROL OF GOVERNMENT OFFICERS" AND "CONTRACTORS ENGAGED-- - NOT EMPLOYED--- ON OTHER THAN A PERSONAL SERVICE BASIS (GENERALLY THOSE WHO DO NOT PERFORM THEIR WORK UNDER THE SUPERVISION AND CONTROL OF THE GOVERNMENT).' AN INDIVIDUAL CONTRACTING HIS SERVICES UNDER SECTION 9 OF THE MILITARY APPROPRIATION ACT OF 1944 RENDERS HIMSELF SUBJECT TO THE CONTINUOUS SUPERVISION AND CONTROL OF HIS OFFICIAL SUPERIORS DURING THE PERIOD OF HIS CONTRACT, WHILE AN INDIVIDUAL CONTRACTING WITH THE GOVERNMENT TO PREPARE AND DELIVER A LECTURE OR A SERIES OF LECTURES ON DEFINITE DATES OWES NO DUTY TO THE GOVERNMENT OTHER THAN SPECIFIC PERFORMANCE UNDER THE CONTRACT, THE WHOLE TRANSACTION BEING, IN FACT, CLOSELY ANALOGOUS TO THE PRODUCTION AND DELIVERY OF A TANGIBLE ARTICLE PURSUANT TO A CONTRACT OF SALE.

IN THE CIRCUMSTANCES I FIND NO LEGAL OBJECTION TO THE PRESENT METHOD OF OBTAINING THE SERVICES OF LECTURERS AND TO THEIR PAYMENT UNDER THE CURRENT APPLICABLE APPROPRIATION.

THE VOUCHER DISCUSSED IN YOUR LETTER AND OTHERS INVOLVING SIMILAR PAYMENTS WILL BE PASSED TO CREDIT IN THE ACCOUNTS OF THE INVOLVED DISBURSING OFFICERS, IF OTHERWISE PROPER.