B-48675, JUNE 23, 1945, 24 COMP. GEN. 924

B-48675: Jun 23, 1945

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TO OFFER AND GIVE TO THE SALVAGE OFFICER IN CHARGE OF SALVAGE OPERATIONS ALL SUCH TECHNICAL AND PROFESSIONAL ADVICE AS IS NECESSARY AND WARRANTED IN THE CIRCUMSTANCES TO ACCOMPLISH THE SUCCESSFUL REFLOATING OF SAID VESSEL. AT A RATE OF PAY NOT EXCEEDING $25 PER DIEM FOR ANY PERSON SO EMPLOYED* * *" THE NAVY DEPARTMENT IS IN DOUBT AS TO THE LEGAL AVAILABILITY OF THE APPROPRIATION 1730601.1. YOUR DECISION IS REQUESTED AS TO WHETHER OR NOT THE APPROPRIATION " MAINTENANCE. " IT CLEARLY IS AVAILABLE FOR THE COST OF OBTAINING SERVICES OF THE NATURE FURNISHED UNDER THE CONTRACT HERE INVOLVED. THAT IS TO SAY. THERE CAN BE NO DOUBT THAT SAID PROVISION OF LAW CONTEMPLATES A DIRECT EMPLOYMENT OF THE PERSONS WHOSE SERVICES ARE DESIRED.

B-48675, JUNE 23, 1945, 24 COMP. GEN. 924

COMPENSATION - RATES - LIMITATIONS - CONTRACT SERVICES THE LUMP-SUM PRICE STIPULATED IN A NAVY DEPARTMENT CONTRACT WITH A STEAMSHIP COMPANY FOR THE TECHNICAL AND PROFESSIONAL SERVICES OF A DESIGNATED INDIVIDUAL--- THE COMPANY'S SALVAGE MASTER--- IN CONNECTION WITH THE REFLOATING OF A PARTICULAR VESSEL, MAY BE PAID WITHOUT REGARD TO THE $25 PER DAY LIMITATION IN THE APPROPRIATION CHARGEABLE, MAINTENANCE BUREAU OF SHIPS 1943, ON THE AMOUNT PAYABLE FOR THE PART TIME OR INTERMITTENT SERVICES OF SCIENTISTS AND TECHNICISTS EMPLOYED BY CONTRACT, WHETHER THE SALVAGE MASTER'S SERVICES BE VIEWED AS HAVING BEEN ENGAGED THROUGH AN INTERMEDIARY OR, DISREGARDING THE FORM OF THE CONTRACT, BY DIRECT HIRE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, JUNE 23, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 21, 1945, JAG:II:WJG:ZL4-3 ( INTER-ISLAND STEAM NAV. CO.) AS FOLLOWS:

THERE IF FORWARDED HEREWITH A LETTER FROM THE COMMANDER SERVICE FORCE, PACIFIC FLEET, DATED JANUARY 16, 1945, WITH ENCLOSURES AND ACCOMPANYING ENDORSEMENTS, RELATIVE TO THE PAYMENT OF THE ENCLOSED BILL OF THE INTER- ISLAND STEAM NAVIGATION COMPANY, LTD., HONOLULU, HAWAII, IN THE AMOUNT OF $1,000, FOR SERVICES RENDERED IN CONNECTION WITH THE REFLOATING OF THE S.S. BARBARA OLSON DURING THE PERIOD APRIL 8 TO APRIL 21, 1943, AS PER CONTRACT COPY ENCLOSED, DATED APRIL 7, 1943.

UNDER THE TERMS OF THE CONTRACT, THE CONTRACTOR EXPRESSLY AGREED TO ASSIST IN THE REFLOATING OF THE S.S. BARBARA OLSON AND "IMMEDIATELY TO THAT END DOES AGREE TO DETAIL ITS SAID SALVAGE MASTER TO PROCEED VIA AIR TRANSPORTATION TO FANNING ISLAND, THEREAT TO CONFER WITH GOVERNMENT OFFICIALS AND THE MASTER OF SAID VESSEL, AND TO OFFER AND GIVE TO THE SALVAGE OFFICER IN CHARGE OF SALVAGE OPERATIONS ALL SUCH TECHNICAL AND PROFESSIONAL ADVICE AS IS NECESSARY AND WARRANTED IN THE CIRCUMSTANCES TO ACCOMPLISH THE SUCCESSFUL REFLOATING OF SAID VESSEL," IN CONSIDERATION FOR WHICH THE UNITED STATES AGREED TO PAY THE CONTRACTOR AS FULL COMPENSATION FOR SAID SERVICES THE SUM OF $1,000.

THE NAVAL APPROPRIATION ACT, 1943 UNDER THE APPROPRIATION " BUREAU OF SHIPS," SUBHEAD " MAINTENANCE, BUREAU OF SHIPS" (56 STAT. 59), PROVIDES:

"* * * PAYMENT OF PART-TIME OR INTERMITTENT EMPLOYMENT IN THE DISTRICT OF COLUMBIA, OR ELSEWHERE OF SUCH SCIENTISTS AND TECHNICISTS AS MAY BE CONTRACTED FOR BY THE SECRETARY OF THE NAVY, IN HIS DISCRETION, AT A RATE OF PAY NOT EXCEEDING $25 PER DIEM FOR ANY PERSON SO EMPLOYED* * *"

THE NAVY DEPARTMENT IS IN DOUBT AS TO THE LEGAL AVAILABILITY OF THE APPROPRIATION 1730601.1, MAINTENANCE, BUREAU OF SHIPS, 1943, FOR PAYMENT OF THE ENCLOSED BILL BECAUSE OF THE ABOVE-QUOTED STATUTORY INHIBITION AGAINST THE PAYMENT OF PART-TIME OR INTERMITTENT EMPLOYMENT FOR PERSONAL SERVICES UNDER CONTRACT AT A RATE OF PAY IN EXCESS OF $25 PER DIEM TO ANY PERSON SO EMPLOYED.

YOUR DECISION IS REQUESTED AS TO WHETHER OR NOT THE APPROPRIATION " MAINTENANCE, BUREAU OF SHIPS, 1943" MAY BE CONSIDERED LEGALLY AVAILABLE FOR PAYMENT OF THE ENCLOSED BILL OF THE INTER-ISLAND STEAM NAVIGATION COMPANY, LTD., IN THE AMOUNT OF $1,000.

ASIDE FROM THE QUESTION WHETHER PAYMENT OF THE CONTRACT PRICE WOULD BE IN CONTRAVENTION OF THE LIMITATION CONTAINED IN THE APPROPRIATION " MAINTENANCE, BUREAU OF SHIPS," SUPRA, IT MAY BE OBSERVED THAT SINCE SAID APPROPRIATION SPECIFICALLY AUTHORIZES EXPENDITURES THEREFROM FOR "SALVAGE AND SALVAGE SERVICES FOR NAVAL FLOATING PROPERTY," IT CLEARLY IS AVAILABLE FOR THE COST OF OBTAINING SERVICES OF THE NATURE FURNISHED UNDER THE CONTRACT HERE INVOLVED; THAT IS TO SAY, WHILE THE TERM "SALVAGE SERVICES" GENERALLY WOULD CONTEMPLATE THE UTILIZATION OF EQUIPMENT AND SUPPLIES TO BE FURNISHED BY A CONTRACTOR IN ADDITION TO PERSONAL SERVICES, THE FACT THAT IN CONNECTION WITH THE ACCOMPLISHMENT OF A PARTICULAR SALVAGE JOB, AS HERE, THERE ARISES THE NECESSITY TO CONTRACT FOR TECHNICAL OR PROFESSIONAL ADVICE, ONLY, I.E., PURELY PERSONAL SERVICES, WOULD NOT OPERATE TO EXCLUDE SUCH A CONTRACT FORM THE SCOPE OF SAID APPROPRIATION AUTHORITY.

THE AUTHORIZATION CONTAINED IN THE APPROPRIATION TO PAY CERTAIN PERSONS A PER DIEM RATE OF COMPENSATION LIMITED TO $25 FOR PART-TIME OR INTERMITTENT EMPLOYMENT, UNDER AN INSTRUMENT DESIGNATED AS A CONTRACT, REPRESENTS AN EXEMPTION FROM THE CIVIL SERVICE LAWS AND REGULATIONS AND FROM THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, 42 STAT. 1488, AS AMENDED, AND CLEARLY ESTABLISHES THE STATUS OF SUCH PERSONS AS OFFICERS OR EMPLOYEES OF THE UNITED STATES WHO PERFORM THEIR WORK UNDER THE SUPERVISION AND CONTROL OF THE GOVERNMENT. SEE 23 COMP. GEN. 425, 428. AND, THERE CAN BE NO DOUBT THAT SAID PROVISION OF LAW CONTEMPLATES A DIRECT EMPLOYMENT OF THE PERSONS WHOSE SERVICES ARE DESIRED, RATHER THAN THE CONSUMMATION OF AN AGREEMENT OR CONTRACT WITH AN INTERMEDIARY AGENCY TO FURNISH SUCH SERVICES. 22 COMP. GEN. 700; 9 ID. 169.

HOWEVER, THERE WOULD APPEAR TO BE WARRANTED THE VIEW THAT THE INSTANT CONTRACT IS NOT REQUIRED TO BE CONSTRUED AS HAVING BEEN ENTERED INTO UNDER THE AUTHORITY OF THE PROVISION OF LAW IN QUESTION. THE OBLIGATION UNDER THE CONTRACT TO ASSIST AND ADVISE IN ORDER TO ACCOMPLISH THE SUCCESSFUL REFLOATING OF THE VESSEL WAS THAT OF THE INTER-ISLAND STEAM NAVIGATION COMPANY, LTD., AND NOT THAT OF ITS SALVAGE MASTER, AND SINCE THE PURPOSE OF THE CONTRACT WAS THE ACCOMPLISHMENT BY THE COMPANY OF A SPECIFIC OBJECT OR WORK THE CHARACTER AND EXTENT OF WHICH WAS CLEARLY DEFINED AND MEASURED, WITHOUT CONTROL OR SUPERVISION BY REPRESENTATIVES OF THE GOVERNMENT, IT WOULD SEEM LOGICALLY TO FOLLOW THAT THE SPECIFIC DESIGNATION IN THE CONTRACT OF A PARTICULAR INDIVIDUAL TO PERFORM THAT SERVICE--- PRESUMABLY BECAUSE OF HIS SPECIAL QUALIFICATIONS AND TRAINING-- - DID NOT RESULT IN DIRECT HIRING OF HIS SERVICES OR CONSTITUTE HIM AN EMPLOYEE OF THE UNITED STATES WITHIN THE PURVIEW OF THE INVOLVED APPROPRIATION PROVISION.

AS A GENERAL RULE PURELY PERSONAL SERVICES FOR THE GOVERNMENT ARE REQUIRED TO BE PERFORMED BY FEDERAL PERSONNEL UNDER GOVERNMENT SUPERVISION (6 COMP. GEN. 140; 15 ID. 951; 17 ID. 300) BUT, SINCE THE SAID RULE IS ONE OF POLICY AND NOT OF POSITIVE LAW, THIS OFFICE HAS AUTHORIZED THE PROCUREMENT OF PERSONAL SERVICES BY CONTRACT UNDER CIRCUMSTANCES INDICATING THAT THE NEED FOR DIRECT GOVERNMENT SUPERVISION IS NOT IMPERATIVE. SEE, INTER ALIA, 13 COMP. GEN. 351; 17 ID. 87, 300; 21 ID. 388, 400; 24 ID. 272. FURTHER, IT HAS BEEN HELD THAT WHERE A PARTICULAR JOB OR WORK IS REQUIRED TO BE DONE ENTAILING TEMPORARY PERSONAL SERVICES AND WHICH NO EMPLOYEE OF THE GOVERNMENT IS QUALIFIED OR AVAILABLE TO PERFORM--- AS APPEARS TO HAVE BEEN THE CASE IN THE PRESENT MATTER--- SUCH SERVICES MAY BE REGARDED AS NONPERSONAL AND MAY BE ENGAGED BY CONTRACT. SEE, FOR EXAMPLE, 6 COMP. GEN. 180, WHEREIN THERE WAS AUTHORIZED A CONTRACT WITH A COMPANY TO FURNISH THE SERVICES OF TURBINE EXPERTS UNDER SUCH CIRCUMSTANCES. HOWEVER, EVEN IF IT BE DEEMED NECESSARY TO DISREGARD THE FORM OF THE CONTRACT AND CONSTRUE IT AS A DIRECT HIRING OF THE SALVAGE MASTER'S SERVICES, THERE WOULD NOT BE REQUIRED THE CONCLUSION THAT HE WAS EMPLOYED UNDER THE AUTHORITY IN THE APPROPRIATION TO PAY A PER DIEM COMPENSATION FOR PART TIME OR INTERMITTENT EMPLOYMENT, SINCE IT WOULD SEEM CLEAR THAT HE WAS ENGAGED SOLELY FOR THE PURPOSE OF PERFORMING A SPECIFIC JOB--- AT A FIXED PRICE FOR THE JOB WITHOUT REGARD TO THE TIME REQUIRED FOR ITS COMPLETION--- IN CONNECTION WITH WHICH HE DID NOT RENDER HIMSELF SUBJECT TO THE SUPERVISION AND CONTROL OF THE GOVERNMENT. SUCH A VIEW IS IN ACCORD WITH THE DECISION IN 24 COMP. GEN. 414, WHEREIN IT WAS HELD THAT AN INDIVIDUAL CONTRACTING TO PREPARE AND DELIVER A SERIES OF LECTURES TO THE SCHOOL OF MILITARY GOVERNMENT DID NOT BECOME AN EMPLOYEE OF THE GOVERNMENT WITHIN THE MEANING OF A STATUTORY PROVISION (SECTION 9, MILITARY APPROPRIATION ACT OF 1944, 57 STAT. 368), SUBSTANTIALLY SIMILAR TO THAT HERE INVOLVED, AUTHORIZING THE EMPLOYMENT BY CONTRACT OF ARCHITECTS, ENGINEERS, OR FIRMS OR CORPORATIONS THEREOF AT A RATE OF COMPENSATION NOT TO EXCEED $25 PER DAY. THE BASIS FOR SUCH HOLDING WAS STATED AS FOLLOWS:

* * * 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 VIEW OF THE FOREGOING AND SINCE, AS HEREINBEFORE INDICATED, THE AUTHORITY CONTAINED IN THE APPROPRIATION " MAINTENANCE, BUREAU OF SHIPS" TO ENGAGE "SALVAGE SERVICES" REASONABLY IS TO BE REGARDED AS COVERING SERVICES OF A PURELY PERSONAL NATURE, I HAVE TO ADVISE THAT SAID APPROPRIATION MAY BE CONSIDERED AS LEGALLY AVAILABLE FOR PAYMENT OF THE AMOUNT STIPULATED IN THE CONTRACT.