B-55253, FEBRUARY 5, 1946, 25 COMP. GEN. 579

B-55253: Feb 5, 1946

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- ARE REQUIRED TO BE EXPENDED IN ACCORDANCE WITH THE LAWS APPLICABLE TO EXPENDITURES BY THE DISTRICT OF COLUMBIA. ARE AVAILABLE FOR THE PROCUREMENT OF ENGINEERING. 1946: I HAVE YOUR LETTER OF JANUARY 17. THE DISTRICT IS IN RECEIPT OF A PROPOSED AGREEMENT BETWEEN THE DISTRICT OF COLUMBIA AND THE FIRM OF METCALF AND EDDY (A PARTNERSHIP) FOR PERFORMING ENGINEERING SERVICES. COMPETITION WAS NOT REQUESTED FOR THESE SERVICES. THE APPROPRIATION FOR CARRYING OUT THE PROVISIONS OF TITLE V OF THE ABOVE ACT IS CONTAINED IN THE INDEPENDENT OFFICES APPROPRIATION ACT. THE DIVISION ENGINEER OF DIVISION 2 OF THE BUREAU OF COMMUNITY FACILITIES HAS ADVISED THE DISTRICT OF COLUMBIA THAT: "THERE IS NOTHING EITHER IN THE ACT OR IN THE REGULATIONS PROHIBITING THE EMPLOYMENT OF SUCH SPECIALISTS AS THE DISTRICT MIGHT NEED AND THERE IS NOTHING THEREIN PROHIBITING THE SELECTION BY THEM BY THE DISTRICT WITHOUT COMPETITIVE BIDDING.

B-55253, FEBRUARY 5, 1946, 25 COMP. GEN. 579

DISTRICT OF COLUMBIA - ADVANCE OF FUNDS UNDER WAR MOBILIZATION AND RECONVERSION ACT OF 1944 FUNDS ADVANCED TO THE DISTRICT OF COLUMBIA UNDER SECTION 501 OF THE WAR MOBILIZATION AND RECONVERSION ACT OF 1944 TO AID IN FINANCING THE COST OF THE PREPARATION OF PLANS, ETC., PRELIMINARY TO THE CONSTRUCTION OF PUBLIC WORKS--- THERE BEING NOTHING IN THE STATUTE INDICATING THE MANNER IN WHICH SUCH WORK SHOULD BE ACCOMPLISHED--- ARE REQUIRED TO BE EXPENDED IN ACCORDANCE WITH THE LAWS APPLICABLE TO EXPENDITURES BY THE DISTRICT OF COLUMBIA. FUNDS ADVANCED--- AS DISTINGUISHED FROM FUNDS DIRECTLY APPROPRIATED- - TO THE DISTRICT OF COLUMBIA, WITH PROVISION FOR REPAYMENT, IN THE SAME MANNER AND FOR THE SAME GENERAL PURPOSE (THE PLANNING OF PUBLIC WORKS PREPARATORY TO CONSTRUCTION) AS ADVANCES TO THE VARIOUS STATES, PURSUANT TO SECTION 501 OF THE WAR MOBILIZATION AND RECONVERSION ACT OF 1944, ARE AVAILABLE FOR THE PROCUREMENT OF ENGINEERING, ETC., SERVICES BY OUTSIDE CONTRACT IN LIEU OF HAVING SUCH SERVICES PERFORMED BY DISTRICT OF COLUMBIA PERSONNEL. ENGINEERING SERVICES PROPOSED TO BE FURNISHED BY A PARTNERSHIP TO THE DISTRICT OF COLUMBIA IN CONNECTION WITH THE PLANNING, WITH FUNDS ADVANCED UNDER AUTHORITY OF THE WAR MOBILIZATION AND RECONVERSION ACT OF 1944, OF PUBLIC WORKS PREPARATORY TO CONSTRUCTION MAY NOT BE REGARDED AS PERSONAL SERVICES WITHIN THE MEANING OF THE EXCEPTION TO THE ADVERTISING FOR BIDS REQUIREMENTS OF SECTION 3709, REVISED STATUTES; HOWEVER, ADVERTISING WOULD NOT BE REQUIRED AS A CONDITION TO EXECUTION OF A CONTRACT WITH THE PARTICULAR ENGINEERS OF THE PARTNERSHIP WHO ACTUALLY WOULD PERFORM THE SERVICES.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, FEBRUARY 5, 1946:

I HAVE YOUR LETTER OF JANUARY 17, 1946, AS FOLLOWS:

THERE HAS BEEN ADVANCED TO THE DISTRICT OF COLUMBIA BY THE FEDERAL WORKS AGENCY, BUREAU OF COMMODITY FACILITIES, UNDER THE TERMS OF TITLE V, PUBLIC WORKS, OF THE WAR MOBILIZATION AND RECONVERSION ACT OF 1944 APPROVED OCTOBER 3, 1944 (58 STAT. 791) THE SUM OF $24,000 FOR PLANS AND SPECIFICATIONS FOR THE EXTENSION OF EXISTING FACILITIES AND CHANGES AT THE DISTRICT OF COLUMBIA SEWAGE TREATMENT PLANT.

THE DISTRICT IS IN RECEIPT OF A PROPOSED AGREEMENT BETWEEN THE DISTRICT OF COLUMBIA AND THE FIRM OF METCALF AND EDDY (A PARTNERSHIP) FOR PERFORMING ENGINEERING SERVICES, INCLUDING PLANS AND SPECIFICATIONS, IN CONNECTION WITH THE EXTENSION OF EXISTING FACILITIES AND CHANGES IN THE DISTRICT OF COLUMBIA SEWAGE TREATMENT PLANT AT AN ESTIMATED COST OF$22,000. COMPETITION WAS NOT REQUESTED FOR THESE SERVICES.

THE APPROPRIATION FOR CARRYING OUT THE PROVISIONS OF TITLE V OF THE ABOVE ACT IS CONTAINED IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1946, APPROVED MAY 3, 1945, WHICH PROVIDES:

"PUBLIC WORKS ADVANCE PLANNING: FOR CARRYING OUT PROVISIONS OF TITLE V OF THE WAR MOBILIZATION AND RECONVERSION ACT OF 1944, $17,500,000, TO BE IMMEDIATELY AVAILABLE, OF WHICH NOT TO EXCEED 3 PERCENTUM SHALL BE AVAILABLE FOR ADMINISTRATIVE EXPENSES NECESSARY THEREFOR, TO BE IMMEDIATELY AVAILABLE AND TO REMAIN AVAILABLE UNTIL JUNE 30, 1946, INCLUDING SALARY FOR NOT TO EXCEED ONE POSITION AT $10,000 PER ANNUM; PERSONAL SERVICES AND RENT IN THE DISTRICT OF COLUMBIA; PRINTING AND BINDING; PURCHASE AND EXCHANGE OF LAW BOOKS AND BOOKS OF REFERENCE; PURCHASE (NOT EXCEEDING FIVE) AND REPAIR, MAINTENANCE AND OPERATION OF PASSENGER AUTOMOBILES; AND TRAVEL EXPENSES (NOT TO EXCEED $20,000).'

IN A LETTER OF DECEMBER 20, 1945 TO THE DIRECTOR, WAR PUBLIC WORKS FOR THE DISTRICT OF COLUMBIA, THE DIVISION ENGINEER OF DIVISION 2 OF THE BUREAU OF COMMUNITY FACILITIES HAS ADVISED THE DISTRICT OF COLUMBIA THAT:

"THERE IS NOTHING EITHER IN THE ACT OR IN THE REGULATIONS PROHIBITING THE EMPLOYMENT OF SUCH SPECIALISTS AS THE DISTRICT MIGHT NEED AND THERE IS NOTHING THEREIN PROHIBITING THE SELECTION BY THEM BY THE DISTRICT WITHOUT COMPETITIVE BIDDING, EITHER BEFORE OR AFTER PUBLIC ADVERTISEMENT FOR BIDS.'

HOWEVER, THERE IS SOME DOUBT IN THE MIND OF THE AUDITOR, D.C. WHETHER THESE ADVANCES ARE AVAILABLE FOR THE EMPLOYMENT OF THE FIRM OF METCALF AND EDDY WITHOUT REFERENCE TO SECTION 3709 OF THE REVISED STATUTES AND THE CLASSIFICATION ACT AS AMENDED.

PLEASE ADVISE THE COMMISSIONERS IF THE FUNDS ADVANCED TO THE DISTRICT OF COLUMBIA UNDER THE ABOVE APPROPRIATION IN ACCORDANCE WITH TITLE V OF THE ACT OF OCTOBER 3, 1944 ARE AVAILABLE FOR THE EMPLOYMENT OF THE FIRM OF METCALF AND EDDY WITHOUT REFERENCE TO SECTION 3709 OF THE REVISED STATUTES, AND THE CLASSIFICATION ACT AS AMENDED.

SECTION 501 (A) OF THE WAR MOBILIZATION AND RECONVERSION ACT OF 1944, 58 STAT. 791, AUTHORIZES THE FEDERAL WORKS ADMINISTRATOR TO MAKE LOANS OR ADVANCES TO STATES AND THEIR AGENCIES AND POLITICAL SUBDIVISIONS TO AID IN FINANCING THE COST OF ARCHITECTURAL, ENGINEERING AND ECONOMIC INVESTIGATIONS AND STUDIES, SURVEYS, PLANS, AND OTHER ACTION PRELIMINARY TO THE CONSTRUCTION OF PUBLIC WORKS; SUBSECTION (D) OF THE SAID SECTION AUTHORIZES THE FEDERAL WORKS ADMINISTRATOR TO PRESCRIBE RULES AND REGULATIONS TO CARRY OUT THE PURPOSES OF SAID SECTION; AND SUBSECTION (E) DEFINES THE TERM " STATE" AS USED IN SAID SECTION TO INCLUDE THE DISTRICT OF COLUMBIA. AND, AS INDICATED IN YOUR LETTER, FUNDS FOR THE PERFORMANCE OF THE WORK AUTHORIZED BY SAID SECTION 501 (A) WERE PROVIDED IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1946, APPROVED MAY 3, 1945, 59 STAT. 112.

IT APPEARS THAT UNDER DATE OF MAY 1, 1945, THE FEDERAL WORKS ADMINISTRATOR ISSUED REGULATIONS IN CONNECTION WITH THE OPERATIONS AUTHORIZED BY THE PROVISIONS OF SAID SECTION 501, 10 F.R. 5526. SECTION 210.10 OF SAID REGULATIONS, ENTITLED " PLAN PREPARATION," IT IS PROVIDED THAT THE PUBLIC AGENCY TO WHICH FUNDS ARE ADVANCED SHALL BE RESPONSIBLE FOR THE CHARACTER, ADEQUACY, AND METHOD OF PLAN PREPARATION IN ACCORDANCE WITH ACCEPTABLE PROFESSIONAL PRACTICES; THAT IF THE PLAN PREPARATION IS PERFORMED "ON A CONTRACTUAL BASIS," SUCH STATE OR LOCAL REGULATIONS AS AFFECT EMPLOYMENT WITHIN THE PROFESSIONS INVOLVED SHALL BE OBSERVED; AND THAT IF THE PUBLIC AGENCY PERFORMS THE WORK WITH ,THEIR OWN FORCES," ONLY COSTS ARISING DIRECTLY FROM SUCH WORK SHALL BE PAID FROM THE FUNDS ADVANCED. THIS SECTION OF THE SAID REGULATIONS IS THE ONLY ONE THAT APPEARS TO HAVE ANY BEARING ON THE QUESTION HERE IN ISSUE. CONSEQUENTLY, THE DIVISION ENGINEER OF DIVISION 2 OF THE BUREAU OF COMMUNITY FACILITIES IS CORRECT IN HIS STATEMENT, QUOTED IN YOUR LETTER, TO THE EFFECT THAT THERE IS NO PROVISION EITHER IN THE WAR MOBILIZATION AND RECONVERSION ACT OF 1944 OR IN THE REGULATIONS ISSUED PURSUANT THERETO PROHIBITING THE DISTRICT OF COLUMBIA FROM ENTERING INTO A CONTRACT OF THE NATURE PROPOSED, EITHER BEFORE OR AFTER PUBLIC ADVERTISEMENT FOR BIDS.

HOWEVER, IT CANNOT BE CONCEDED THAT THE ONLY PROVISIONS OF LAW CONTROLLING PERFORMANCE OF THE INVOLVED WORK ARE TO BE FOUND IN THE SAID ACT AND REGULATIONS. ON THE CONTRARY, IT MUST BE ASSUMED THAT IN AUTHORIZING ADVANCES OF FUNDS TO THE VARIOUS STATES FOR THE DESCRIBED WORK, WITHOUT INDICATING THE PRECISE MANNER IN WHICH SUCH WORK SHOULD BE ACCOMPLISHED, THE CONGRESS INTENDED THAT IT SHOULD BE CARRIED ON IN CONFORMANCE WITH THE PARTICULAR STATE LAWS APPLICABLE TO ACTIVITIES OF THAT NATURE. AND, BY THE SAME TOKEN, FUNDS ADVANCED TO THE DISTRICT OF COLUMBIA UNDER THE AUTHORITY OF THE SAID ACT ARE REQUIRED TO BE EXPENDED IN ACCORDANCE WITH THE LAWS APPLICABLE TO EXPENDITURES BY THE DISTRICT. SEE 14 COMP. GEN. 273; 15 ID. 43.

CONSIDERING THE PROPOSED CONTRACT ON THIS PREMISE, THE FIRST PHASE OF THE MATTER IS WHETHER THE DISTRICT OF COLUMBIA MAY PROCURE ENGINEERING SERVICES ON A CONTRACTUAL BASIS--- QUITE ASIDE, FOR THE MOMENT, FROM THE QUESTION OF WHETHER PRIOR COMPETITION IS NECESSARY. IT IS A WELL ESTABLISHED RULE, INSOFAR AS THE DEPARTMENTS AND ESTABLISHMENTS OF THE FEDERAL GOVERNMENT ARE CONCERNED, THAT PURELY PERSONAL SERVICES MUST BE PERFORMED BY REGULAR EMPLOYEES OF THE GOVERNMENT WHO ARE RESPONSIBLE TO THE GOVERNMENT AND SUBJECT TO GOVERNMENT SUPERVISION. 6 COMP. GEN. 140; 11 ID. 252; 12 ID. 516; 16 ID. 1055; 17 ID. 52; 22 ID. 700; B-31670, JANUARY 25, 1943. AND WHILE A DISTINCTION HAS BEEN DRAWN IN CASES INVOLVING THE PURCHASE OF A REPORT, MAP, PLAN OR OTHER DOCUMENT, ALREADY PREPARED AND IN EXISTENCE AT THE TIME THE NEED THEREFOR BY THE GOVERNMENT AROSE (4 COMP. GEN. 781; A-40766, FEBRUARY 17, 1932; B-23640, FEBRUARY 16, 1942,) SUCH IS NOT UNDERSTOOD TO BE THE SITUATION HERE. SEE 3 COMP. GEN. 709; 6 ID. 820; 11 ID. 252.

HOWEVER, IT LONG HAS BEEN RECOGNIZED BOTH BY THE COURTS AND BY THE ACCOUNTING OFFICERS THAT, EXCEPT AS OTHERWISE PROVIDED IN PARTICULAR STATUTES, THE DISTRICT OF COLUMBIA IS A MUNICIPAL CORPORATION WITH ITS OWN POWERS AND FUNCTIONS, ITS OWN FUNDS, AND ITS OBLIGATIONS AND LIABILITIES, SEPARATE AND DISTINCT FROM THOSE OF THE FEDERAL GOVERNMENT. BARNES V. DISTRICT OF COLUMBIA, 91 U.S. 540; METROPOLITAN RAILROAD COMPANY V. DISTRICT OF COLUMBIA, 132 U.S. 1; DISTRICT OF COLUMBIA V. WOODBURY, 136 U.S. 450; CROSON V. DISTRICT OF COLUMBIA, 2 F.2D 924; 10 COMP. DEC. 117; 1 COMP. GEN. 451; 10 ID. 524; 19 ID. 16. THE ACT OF JUNE 11, 1878, 20 STAT. 102, PROVIDES FOR A PERMANENT FORM OF GOVERNMENT FOR THE DISTRICT OF COLUMBIA AND DIRECTS THAT IT "SHALL REMAIN AND CONTINUE" A MUNICIPAL CORPORATION. AND, IN DISTRICT OF COLUMBIA V. WOODBURY, SUPRA, THE COURT SAID:

* * * THAT STREETS, AVENUES, PAVEMENTS, SIDEWALKS AND SEWERS IN WASHINGTON ARE ESTABLISHED, REPAIRED AND MAINTAINED, IN PART, BY APPROPRIATIONS MADE BY CONGRESS, AND, IN PART, BY TAXATION UPON PRIVATE PROPERTY, DOES NOT CHANGE THE FACT THAT, BY AN EXPRESS DECLARATION OF CONGRESS, THE DISTRICT IS CREATED A BODY CORPORATE FOR MUNICIPAL PURPOSES. * * * THE SOURCE FROM WHICH THE DISTRICT OBTAINS THE MEANS FOR MAINTAINING PUBLIC HIGHWAYS IN THE CITY IS OF NO CONSEQUENCE, SO LONG AS CONGRESS HAS MADE IT, AND PERMITS IT TO REMAIN, A MERE MUNICIPAL CORPORATION, WITH SUCH FUNCTIONS AS PERTAIN TO MUNICIPAL CORPORATIONS PROPER. * * *

IN LINE WITH THE THEORY THAT THE DISTRICT IS NOT A DEPARTMENT OR ESTABLISHMENT OF THE FEDERAL GOVERNMENT, VARIOUS STATUTES CONTAINING RESTRICTIONS OR LIMITATIONS ON THE EXPENDITURE OF PUBLIC FUNDS HAVE BEEN HELD INAPPLICABLE TO THE DISTRICT. IN 1 COMP. DEC. 558 THE REQUIREMENT IN SECTION 87 OF THE ACT OF JANUARY 12, 1895 (28 STAT. 622), THAT ALL PRINTING FOR THE EXECUTIVE AND JUDICIAL DEPARTMENTS OF THE GOVERNMENT BE DONE AT THE GOVERNMENT PRINTING OFFICE, WAS HELD NOT TO APPLY TO THE DISTRICT OF COLUMBIA. THERE ALSO HAVE BEEN HELD INAPPLICABLE TO THE DISTRICT THE PROVISIONS OF SECTION 850, REVISED STATUTES, RELATING TO WITNESS FEES FOR GOVERNMENT EMPLOYEES (18 COMP. DEC. 382); THE PROVISIONS OF SECTION 4 OF THE ACT OF MARCH 4, 1913, 37 STAT. 790, LIMITING THE COMPENSATION PAYABLE FOR PERSONAL SERVICES OF GOVERNMENT EMPLOYEES DURING A CERTAIN FISCAL YEAR (19 COMP. DEC. 624); THE PROVISIONS OF SECTION 1757, REVISED STATUTES, 5 U.S.C. 16, PRESCRIBING A CERTAIN OATH OF OFFICE FOR PERSONS ELECTED OR APPOINTED IN THE CIVIL, MILITARY OR NAVAL SERVICE (10 COMP. GEN. 524 AND 17 ID. 296); THE PROVISIONS OF THE ACT OF FEBRUARY 24, 1899, 30 STAT. 864, PROHIBITING THE PURCHASE AND REPAIR OF RECORDING CLOCKS (A-75447, JULY 9, 1936); AND THE RESTRICTION REGARDING THE MAINTENANCE AND REPAIR OF MOTOR VEHICLES IN THE ACT OF MAY 14, 1937, 50 STAT. 163 (A-95478, JUNE 13, 1938).

ON THE OTHER HAND, THERE ARE AT LEAST AS MANY DECISIONS HOLDING THE DISTRICT OF COLUMBIA TO BE WITHIN THE SCOPE OF PARTICULAR LEGISLATION, NOTWITHSTANDING THE FACT THAT SUCH LEGISLATION IN TERMS APPLIES TO THE "DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT," OR THE LIKE. FOR EXAMPLE, IN 2 COMP. DEC. 136 THE PROVISIONS OF SECTION 3711, REVISED STATUTES, REQUIRING PRIOR WEIGHING OF FUEL PURCHASED FOR THE PUBLIC SERVICE, WERE HELD TO APPLY TO THE DISTRICT; IN 6 COMP. DEC. 729--- THE PROHIBITION IN SECTION 3 OF THE ACT OF MARCH 15, 1898 (30 STAT. 316), WITH RESPECT TO THE PURCHASE OF LAW BOOKS, BOOKS OF REFERENCE, AND PERIODICALS; IN 10 COMP. DEC. 117--- THE RESTRICTION IN THE ACT OF JUNE 22, 1874, 18 STAT. 144, REGARDING THE RENTAL OF BUILDINGS IN THE DISTRICT OF COLUMBIA; IN 21 COMP. DEC. 671--- THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 16, 1914, 38 STAT. 508, REQUIRING SPECIFIC AUTHORITY FOR THE PURCHASE, ETC., OF MOTOR VEHICLES; AND IN 21 COMP. GEN. 20--- THE DUAL COMPENSATION ACT OF MAY 10, 1916, AS AMENDED, 5 U.S.C. 58, 59.

THE CONCLUSION TO BE DRAWN FROM THIS REVIEW OF PRIOR CASES IS THAT EVEN THOUGH THE DISTRICT IS A MUNICIPAL CORPORATION, HAVING A SEPARATE ENTITY, THE QUESTION OF WHETHER IT IS COMPREHENDED BY LEGISLATION APPLICABLE TO THE FEDERAL GOVERNMENT DEPENDS MORE ON THE TERMS OF THE PARTICULAR LEGISLATION INVOLVED THAN UPON THE INDEPENDENT STATUS OF THE DISTRICT. HOWEVER, THE REQUIREMENT THAT PERSONAL SERVICES BE PERFORMED BY GOVERNMENT PERSONNEL RATHER THAN UNDER PRIVATE CONTRACT IS NOT BASED UPON THE TERMS OF ANY ONE PARTICULAR STATUTE BUT IS MORE IN THE NATURE OF A RULE OF POLICY. SEE 24 COMP. GEN. 924. NEVERTHELESS, IT WELL MAY BE THAT THE SAID RULE SHOULD APPLY IN CASES INVOLVING FUNDS APPROPRIATED BY THE CONGRESS DIRECTLY FOR THE DISTRICT OF COLUMBIA. SEE B-37995, NOVEMBER 25, 1943. BUT IN THE PRESENT CASE THE FUNDS WERE ADVANCED TO THE DISTRICT BY THE FEDERAL GOVERNMENT, WITH PROVISION FOR REPAYMENT, IN THE SAME MANNER AND FOR THE SAME GENERAL PURPOSE AS ADVANCES TO THE SEVERAL STATES. ACCORDINGLY, THIS OFFICE IS NOT DISPOSED TO OBJECT TO THE PROPOSAL TO HAVE THE INVOLVED PLAN PREPARATION WORK DONE BY OUTSIDE CONTRACT RATHER THAN BY PERSONNEL OF THE DISTRICT GOVERNMENT.

IN CONNECTION WITH THE NECESSITY FOR COMPETITIVE BIDS INCIDENT TO THE EXECUTION OF SUCH A CONTRACT, THERE IS, OF COURSE, NO QUESTION BUT THAT THE PROVISIONS OF SECTION 3709, REVISED STATUTES, ARE APPLICABLE GENERALLY TO PURCHASES (IN EXCESS OF $100) BY THE DISTRICT OF COLUMBIA. SEE SECTION 1 (C) OF THE ACT OF OCTOBER 10, 1940, 54 STAT. 1109, 1110. WHILE ADVERTISING IS REQUIRED, ALSO, BY SECTION 5 OF THE ACT OF JUNE 11, 1878, 20 STAT. 105 ( ORGANIC ACT OF 1878), FOR ANY PART OF THE WORK OF CONSTRUCTING OR REPAIRING STREETS AND SEWERS WITHIN THE DISTRICT OF COLUMBIA--- WHERE THE AMOUNT INVOLVED EXCEEDS $1,000--- IT WOULD NOT APPEAR THAT THE "EXTENSION OF EXISTING FACILITIES AND CHANGES AT THE DISTRICT OF COLUMBIA SEWAGE TREATMENT PLANT" NEED BE REGARDED AS WITHIN THE PURVIEW OF THAT SECTION. CF. 15 COMP. GEN. 43. HENCE, THE SOLE ISSUE HERE IS WHETHER SAID SECTION 3709 REQUIRES ADVERTISING FOR BIDS PRIOR TO THE EXECUTION OF THE PROPOSED CONTRACT WITH METCALF AND EDDY. SAID SECTION 3709, REVISED STATUTES, AS CONTAINED IN 41 U.S.C. 5, PROVIDES IN PART:

ALL PURCHASES AND CONTRACTS FOR SUPPLIES OR SERVICES, IN ANY OF THE DEPARTMENTS OF THE GOVERNMENT, EXCEPT FOR PERSONAL SERVICES, SHALL BE MADE BY ADVERTISING A SUFFICIENT TIME PREVIOUSLY FOR PROPOSALS RESPECTING THE SAME, WHEN THE PUBLIC EXIGENCIES DO NOT REQUIRE THE IMMEDIATE DELIVERY OF THE ARTICLES, OR PERFORMANCE OF THE SERVICE. * * * (ITALICS SUPPLIED.)

IT HAS BEEN HELD THAT THE EXCEPTION IN SAID SECTION 3709 WITH RESPECT TO PERSONAL SERVICES IS IDENTIFIED WITH AND ATTACHES TO A PARTICULAR PERSON OR PERSONS AND THAT IT CONTEMPLATES A CONTRACT DIRECTLY WITH AND BINDING UPON SUCH PERSON OR PERSONS. 9 COMP. GEN. 159; 14 ID. 909; 15 ID. 805; 19 ID. 523. THUS IN 19 COMP. GEN. 523, 526, IT WAS STATED:

* * * A CONTRACT FOR PERSONAL SERVICES HAS BEEN DEFINED AS "ONE BY WHICH THE INDIVIDUAL CONTRACTED WITH RENDERS HIS PERSONAL SERVICE TO THE GOVERNMENT THROUGH ITS AGENTS, THUS HIMSELF BECOMING THE SERVANT OF THE GOVERNMENT.' 15 OP.ATTY.GEN. 235, 243. AND, AGAIN, SPEAKING WITH REFERENCE TO WHAT CONSTITUTES PERSONAL SERVICES WITHIN THE MEANING OF SECTION 3709, REVISED STATUTES, IT WAS SAID, BY THE THEN ATTORNEY GENERAL IN ANOTHER OPINION (15 OP.ATTY.GEN. 546) THAT ,MOREOVER" I UNDERSTAND THE PERSONAL SERVICE MENTIONED IN THAT SECTION TO BE PERSONAL SERVICE OF THE PARTY CONTRACTED WITH AND NOT PERSONAL SERVICE WHICH HE SHALL EMPLOY.' THE "PERSONAL ERVICES" REFERRED TO IN THE STATUTE WOULD SEEM TO RELATE PRIMARILY TO SERVICES THAT ARE PERFORMED PERSONALLY BY THE CONTRACTOR AND NOT SERVICES PERFORMED BY OTHERS EMPLOYED BY A CONTRACTOR OR EVEN BY SUCH OTHERS AND THE CONTRACTOR JOINTLY.

THE FIRM OF METCALF AND EDDY IS DESCRIBED IN YOUR LETTER AS A PARTNERSHIP, AND IT IS PRESUMED THAT THE PROPOSED AGREEMENT WOULD NOT REQUIRE THE PERSONAL SERVICE OF ANY PARTICULAR INDIVIDUAL BUT MERELY THAT IT REPRESENTS A CONTRACTUAL OBLIGATION OF THE FIRM TO SUPPLY CERTAIN ENGINEERING SERVICES. IF SO, SUCH A CONTRACT WOULD NOT FALL WITHIN THE PERSONAL SERVICE EXCEPTION IN SECTION 3709 AND COMPETITIVE BIDS WOULD BE REQUIRED. BUT A CONTRACT EXECUTED WITH THE PARTICULAR ENGINEERS IN THE FIRM WHO ACTUALLY WOULD PERFORM THE SERVICE WOULD NOT REQUIRE ADVERTISING.