B-56519, APRIL 2, 1946, 25 COMP. GEN. 690

B-56519: Apr 2, 1946

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THE PILOT IS APPOINTED A GOVERNMENT EMPLOYEE AS A REGULAR FIRE GUARD. YOUR OPINION IS RESPECTFULLY REQUESTED AS TO THE PROPRIETY OF A PROPOSED CONTRACT. IT IS PROPOSED TO INCLUDE IN THE INVITATION TO BID THE STATEMENT THAT THE SERVICES OF A PILOT AND PLANE ARE DESIRED FOR THE FIRE SEASON. THAT THE SUCCESSFUL BIDDER WILL BE APPOINTED AS A REGULAR FIRE GUARD OF THE SERVICE FOR THE DURATION OF THE CONTRACT AT WHATEVER RATE OF PAY THE OTHER FIRE GUARDS OF THAT AREA RECEIVE AND THAT THE BID SHOULD BE BASED ON THE FURNISHING OF THE AIRPLANE ONLY. I 7G-11) WAS FOR $10 A FLYING HOUR AND THE . I 7G-55) WAS FOR $22 A FLYING HOUR. THE SUM OF $1800 A SEASON WAS EXPENDED FOR PILOT HIRE. AS FIRE GUARDS ARE EMPLOYED AT $3312 PER ANNUM OR $1656 PER SEASON.

B-56519, APRIL 2, 1946, 25 COMP. GEN. 690

OFFICERS AND EMPLOYEES - CONTRACTING WITH THE GOVERNMENT - FURNISHING PERSONALLY OWNED AIRPLANE IF, PURSUANT TO THE PROVISIONS OF THE ACT OF JULY 3, 1945, AUTHORIZING THE HIRE OF AIRPLANES BY THE GENERAL LAND OFFICE, INTERIOR DEPARTMENT, A CONTRACT BE ENTERED INTO ON THE BASIS OF COMPETITIVE BIDS RECEIVED IN RESPONSE TO AN INVITATION TO BID REQUESTING THE SERVICES OF A PILOT AND AN AIRPLANE, AND, PURSUANT TO A PROVISION IN THE INVITATION, THE PILOT IS APPOINTED A GOVERNMENT EMPLOYEE AS A REGULAR FIRE GUARD, SUCH CONTRACT WOULD NOT BE OBJECTIONABLE AS BEING IN CONTRAVENTION OF THE RULE OF PUBLIC POLICY AGAINST THE GOVERNMENT CONTRACTING WITH ITS EMPLOYEES OR THE PROHIBITION IN SECTION 1765, REVISED STATUTES, AGAINST EXTRA ALLOWANCES OR COMPENSATION OF EMPLOYEES.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, APRIL 2, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 12, 1946, AS FOLLOWS:

THE ACT OF JULY 3, 1945 ( PUBLIC LAW 123, 79TH CONG., ST SESS.) AUTHORIZES THE EXPENDITURE OF MONEY BY THE GENERAL LAND OFFICE FOR THE ADMINISTRATION AND MANAGEMENT OF FOREST SOURCES,"INCLUDING THE PREVENTION AND SUPPRESSION OF FIRES ON THE PUBLIC DOMAIN IN ALASKA, INCLUDING THE USE OF AIRPLANES BY CHARTER OR OTHERWISE.' IN CONNECTION THEREWITH, YOUR OPINION IS RESPECTFULLY REQUESTED AS TO THE PROPRIETY OF A PROPOSED CONTRACT.

THE ALASKAN FIRE CONTROL SERVICE OF THE GENERAL LAND OFFICE CONTEMPLATES THE ISSUANCE, ON APRIL 1, 1946, OF INVITATIONS FOR BIDS FOR PILOT AND PLANE SERVICES FOR THE 1946 FIRE SEASON. IN ORDER TO EFFECTUATE GREATER ECONOMY AND EFFICIENCY, IT IS PROPOSED TO INCLUDE IN THE INVITATION TO BID THE STATEMENT THAT THE SERVICES OF A PILOT AND PLANE ARE DESIRED FOR THE FIRE SEASON, THAT THE SUCCESSFUL BIDDER WILL BE APPOINTED AS A REGULAR FIRE GUARD OF THE SERVICE FOR THE DURATION OF THE CONTRACT AT WHATEVER RATE OF PAY THE OTHER FIRE GUARDS OF THAT AREA RECEIVE AND THAT THE BID SHOULD BE BASED ON THE FURNISHING OF THE AIRPLANE ONLY.

A CONTRACT, AS PROPOSED HEREIN, WOULD BE MORE ADVANTAGEOUS, ECONOMICALLY AND ADMINISTRATIVELY, TO THE DEPARTMENT FOR THE FOLLOWING REASONS:

1. THE PILOT'S SERVICES, WHEN NOT FLYING, WOULD BE AVAILABLE TO THE SERVICE IN FIRE SUPPRESSION AND OTHER ACTIVITIES.

2. THE PILOT, AS AN EMPLOYEE OF THE SERVICE, COULD BE ENTRUSTED WITH THE PROSECUTION OF SERVICE ACTIVITIES WITHOUT THE NECESSITY OF TRANSPORTING OTHER REGULAR PERSONNEL FOR THAT PURPOSE.

3. THE PILOT WOULD BE TRAINED TO THE DUTIES AND RESPONSIBILITIES OF THE FIRE GUARDS AND WOULD BE ABLE TO MAKE INDIVIDUAL PATROLS WITHOUT OTHER PERSONNEL.

4. THE PREVIOUS "AIRPLANE ONLY" CONTRACT ( NO. I 7G-11) WAS FOR $10 A FLYING HOUR AND THE ,PILOT AND AIRPLANE CONTRACT ( NO. I 7G-55) WAS FOR $22 A FLYING HOUR--- THE DIFFERENCE OF $12 AN HOUR REPRESENTING COMPENSATION FOR THE SERVICES OF THE PILOT. ON THE BASIS OF 150 GUARANTEED MINIMUM HOURS, THE SUM OF $1800 A SEASON WAS EXPENDED FOR PILOT HIRE. AS FIRE GUARDS ARE EMPLOYED AT $3312 PER ANNUM OR $1656 PER SEASON, THERE WOULD BE A DIRECT SAVING OF $144 A SEASON IN PILOT HIRE. A FURTHER SAVING WOULD BE REALIZED ON THE SALARY OF THE FIRE GUARD OR RANGER WHO MUST NOW ACCOMPANY THE PILOT ON EACH TRIP--- APPROXIMATELY $240. THE COMPLETELY UTILIZED TIME OF THE PILOT, WHEN NOT ENGAGED IN FLYING OPERATIONS, WOULD RESULT IN AN EVEN LARGER SAVING OF MONEY.

THE FIRE SEASON IN ALASKA IS OF SIX MONTHS' DURATION. FIRE GUARDS ARE EMPLOYED UNDER THE AUTHORITY OF SCHEDULE A-I-9 OF THE CIVIL SERVICE RULES, BEING EXCEPTED FROM EXAMINATION UNDER SECTION 3, CIVIL SERVICE RULE II.

IN 1943 AND 1944, AS THE ALASKAN AREA WAS WITHIN THE THEATER OF WAR OPERATIONS, PERMISSION WAS OBTAINED FROM THE ALASKAN DEPARTMENT, WAR DEPARTMENT, FOR THE SERVICE TO FLY ITS PATROL PLANES OVER ALL AREAS OF ALASKA, SUBJECT TO THE STIPULATION THAT THE PILOT HAD TO BE A REGULAR EMPLOYEE OF THE SERVICE. ACCORDINGLY, DURING THESE TWO YEARS, THE PILOT WAS EMPLOYED AS A FIRE GUARD OF THE SERVICE AND HIS AIRPLANE ONLY WAS HIRED ON A CONTRACTUAL BASIS.

IN THE SPRING OF 1945, UPON THE REMOVAL BY THE ALASKAN DEPARTMENT OF RESTRICTIONS UPON CIVILIAN FLYING, THE SERVICE, AFTER ADVERTISING FOR BIDS, CONTRACTED FOR THE SERVICES OF A PILOT AND AIRPLANE FOR FIRE PATROL WORK. AS THE PILOT WAS NOT A REGULAR EMPLOYEE OF THE SERVICE AND WAS NOT A TRAINED FIRE GUARD, IT WAS NECESSARY TO DETAIL A REGULAR FIRE GUARD OR A MEMBER OF THE DISTRICT RANGER PERSONNEL TO ACCOMPANY THE PILOT ON ALL FLIGHTS--- EITHER FOR PURPOSES OF FIRE DETECTION, FIRE SUPPRESSION, OR OTHER OFFICIAL BUSINESS. FURTHERMORE, AS THE PILOT WAS COMPENSATED ON THE BASIS OF FLYING HOURS ONLY, HIS SERVICE COULD NOT BE UTILIZED DURING HIS NON-FLYING PERIODS.

IF THERE ARE NOT OBJECTIONS TO THE PROPOSED CONTRACT, COMPLIANCE WILL BE HAD WITH THE REQUIREMENTS OF REV. STAT. SEC. 3709 (41 U.S.C. SEC. 5) IN ORDER TO SECURE TO THE GOVERNMENT THE BENEFITS TO BE DERIVED FROM COMPETITION IN THE MAKING OF THE CONTRACT.

IN VIEW OF THE FACT THAT IT IS DESIRED TO ADVERTISE FOR BIDS AT A VERY EARLY DATE, APRIL 1, IT IS REQUESTED THAT, IF POSSIBLE, YOU GIVE THIS MATTER PROMPT CONSIDERATION AND INFORM THIS DEPARTMENT AS TO WHETHER THERE ARE ANY OBJECTIONS TO THE PROPOSED INVITATION TO BID AND CONTRACT.

IF THE SERVICES OF A PILOT AND PLANE ARE OBTAINED UNDER THE PLAN PROPOSED IT WILL RESULT IN HAVING AN EMPLOYEE OF THE GOVERNMENT ALSO ACTING AS A CONTRACTOR FURNISHING EQUIPMENT TO BE USED BY HIM IN CONNECTION WITH HIS EMPLOYMENT. IN A SUBSTANTIALLY SIMILAR SITUATION IT WAS STATED IN 21 COMP. GEN. 705, AT PAGE 707, AS FOLLOWS:

CONTRACTS BETWEEN THE GOVERNMENT AND ITS EMPLOYEES ARE NOT PROHIBITED GENERALLY BY STATUTE BUT ONLY WHERE AN EMPLOYEE OF THE GOVERNMENT ACTS AS AGENT BOTH FOR THE GOVERNMENT AND THE CONTRACTOR IN THE TRANSACTION OF BUSINESS (SEE 18 U.S.C. 93; 14 OP. ATTY. GEN. 482; 24 ID. 557; 5 COMP. GEN. 93; 13 ID. 281; 17 ID. 123;) OR WHERE THE SERVICE TO BE RENDERED UNDER A CONTRACT WITH AN EMPLOYEE IS SUCH AS COULD HAVE BEEN REQUIRED OF HIM IN HIS OFFICIAL CAPACITY, IN WHICH CASE THE PAYMENT OF ADDITIONAL COMPENSATION IS INHIBITED BY SECTIONS 1764 AND 1765, REVISED STATUTES, 5 U.S.C. 69, 70. CF. WOODWELL V. UNITED STATES, 214 U.S. 82.

HOWEVER, ASIDE FROM ANY STATUTORY PROHIBITION, CONTRACTS BETWEEN THE GOVERNMENT, AND ITS EMPLOYEES ARE OPEN TO CRITICISM FOR POSSIBLE FAVORITISM AND PREFERENTIAL TREATMENT; AND THIS OFFICE OFTEN HAS EXPRESSED THE VIEW THAT SUCH CONTRACTS SHOULD NOT BE MADE EXCEPT FOR THE MOST COGENT REASONS. 5 COMP. GEN. 93; 14 ID. 403; CF. 13 COMP. GEN. 281.

THE ACT OF JANUARY 31, 1931, 46 STAT. 1052, PROVIDES IN PART, AS FOLLOWS:

* * * THE SECRETARY OF AGRICULTURE IS AUTHORIZED, UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE:

(A) TO HIRE OR RENT PROPERTY FROM EMPLOYEES OF THE FOREST SERVICE FOR USE OF OFFICERS OF THAT SERVICE OTHER THAN USE BY THE EMPLOYEES FROM WHOM HIRED OR RENTED, WHENEVER THE PUBLIC INTEREST WILL BE PROMOTED THEREBY * * *. WHILE SAID STATUTE HAS NO APPLICATION TO THE PRESENT CASE--- INVOLVING THE DEPARTMENT OF THE INTERIOR--- IT DOES INDICATE A POLICY OF CONGRESS TO PROHIBIT THE HIRING OR RENTING OF EQUIPMENT FROM EMPLOYEES FOR USE BY THE EMPLOYEES FROM WHOM HIRED OR RENTED. GENERALLY, THAT IS THE RULE FOLLOWED BY THIS OFFICE BUT THERE ARE EXCEPTIONS. ALSO, SEE SECTION 3850, REVISED STATUTES, 39 U.S.C. 52, WHICH PROHIBITS THE HIRING OF VEHICLES FROM CERTAIN EMPLOYEES OF THE POSTAL SERVICE. BUT THAT DEPARTMENT EMPLOYS RURAL CARRIERS UNDER CONDITIONS WHICH REQUIRE THEM TO FURNISH A VEHICLE FOR WHICH THEY RECEIVE COMPENSATION UPON A MILEAGE BASIS.

THE PROPOSED PLAN FOR OBTAINING THE USE OF AN AIRPLANE AND PILOT IS NOT PROHIBITED BY EXPRESS PROVISION OF ANY STATUTE. IT IS NOT OPEN TO CRITICISM FOR POSSIBLE FAVORITISM AND PREFERENTIAL TREATMENT BECAUSE THE CONTRACT IS TO BE AWARDED ON THE BASIS OF COMPETITIVE BIDS IN RESPONSE TO AN OPEN INVITATION THEREFOR. IN CASE THE CONTRACTOR SHOULD BECOME A GOVERNMENT EMPLOYEE, THE FURNISHING OF AN AIRPLANE REASONABLY COULD NOT BE REQUIRED OF HIM AS A PART OF HIS REGULAR DUTIES AND PAYMENT FOR THE USE OF THE PLANE WOULD NOT BE PROHIBITED BY SECTIONS 1764 AND 1765, REVISED STATUTES.

ACCORDINGLY, IN VIEW OF THE APPARENT ECONOMIC AND ADMINISTRATIVE ADVANTAGES TO THE UNITED STATES AND THE BROAD LANGUAGE OF THE APPROPRIATION ACT--- "INCLUDING THE USE OF AIRPLANES BY CHARTER OR OTHERWISE"--- ON THE BASIS OF THE REPRESENTATIONS MADE, THIS OFFICE WILL INTERPOSE NO OBJECTIONS TO THE PROPOSED PLAN FOR OBTAINING THE SERVICES OF AN AIRPLANE AND PILOT FOR THE PURPOSES STATED.