B-62377, JANUARY 9, 1947, 26 COMP. GEN. 468

B-62377: Jan 9, 1947

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PERSONAL SERVICES - PROCUREMENT BY CONTRACT IN DETERMINING WHETHER SERVICES FOR THE GOVERNMENT ARE PURELY PERSONAL TO BE PERFORMED BY FEDERAL PERSONNEL UNDER GOVERNMENT SUPERVISION OR ARE OF A NONPERSONAL NATURE OBTAINABLE BY CONTRACT. THERE ARE FOR CONSIDERATION SUCH FACTORS AS THE DEGREE OF GOVERNMENT SUPERVISION. THE TEMPORARY CHARACTER THEREOF WHICH NO GOVERNMENT EMPLOYEE IS QUALIFIED OR AVAILABLE TO PERFORM. WHETHER THE RENUMERATION IS BASED UPON RESULTS TO BE ACCOMPLISHED OR THE TIME ACTUALLY WORKED. AS FOLLOWS: THE SOUTHWESTERN POWER ADMINISTRATION OF THIS DEPARTMENT IS UNDERTAKING A PROGRAM OF CONSTRUCTION OF TRANSMISSION LINES. APPURTENANT FACILITIES FOR WHICH FUNDS WERE PROVIDED IN THE INTERIOR DEPARTMENT APPROPRIATION ACT.

B-62377, JANUARY 9, 1947, 26 COMP. GEN. 468

PERSONAL SERVICES - PROCUREMENT BY CONTRACT IN DETERMINING WHETHER SERVICES FOR THE GOVERNMENT ARE PURELY PERSONAL TO BE PERFORMED BY FEDERAL PERSONNEL UNDER GOVERNMENT SUPERVISION OR ARE OF A NONPERSONAL NATURE OBTAINABLE BY CONTRACT, THERE ARE FOR CONSIDERATION SUCH FACTORS AS THE DEGREE OF GOVERNMENT SUPERVISION, THE FURNISHING OF EQUIPMENT, SUPPLIES AND OFFICE OR WORKING SPACE, THE USE OF SPECIAL KNOWLEDGE OR EQUIPMENT, THE TEMPORARY CHARACTER THEREOF WHICH NO GOVERNMENT EMPLOYEE IS QUALIFIED OR AVAILABLE TO PERFORM, ETC., AND WHETHER THE RENUMERATION IS BASED UPON RESULTS TO BE ACCOMPLISHED OR THE TIME ACTUALLY WORKED, AND WHETHER IT COVERS NOT ONLY THE INDIVIDUAL'S TIME BUT, ALSO, THE USE OF HIS FACILITIES, OFFICE STAFF, EQUIPMENT, ETC. THE SOUTHWESTERN POWER ADMINISTRATION, DEPARTMENT OF THE INTERIOR, WHICH HAS NEITHER THE PERSONNEL NOR EQUIPMENT REQUIRED TO PERFORM CERTAIN FIELD ENGINEERING SERVICES NECESSARY IN SECURING DATA FOR ITS AUTHORIZED TRANSMISSION LINE, ETC., CONSTRUCTION PROGRAM, MAY, UNDER THE CIRCUMSTANCES, PROCURE SUCH SERVICES BY CONTRACTS, TO BE AWARDED PURSUANT TO THE ADVERTISING FOR BIDS REQUIREMENT OF SECTION 3709, REVISED STATUTES, AS AMENDED, WITH PRIVATE FIRMS HAVING THE NECESSARY EQUIPMENT AND TRAINED STAFFS TO PERFORM THE REQUIRED WORK WITHOUT GOVERNMENT SUPERVISION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, JANUARY 9, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 5, 1946, AS FOLLOWS:

THE SOUTHWESTERN POWER ADMINISTRATION OF THIS DEPARTMENT IS UNDERTAKING A PROGRAM OF CONSTRUCTION OF TRANSMISSION LINES, SUBSTATIONS, AND APPURTENANT FACILITIES FOR WHICH FUNDS WERE PROVIDED IN THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1947, APPROVED JULY 1, 1946, ( PUB. L. 478-- - 79TH CONGRESS). IT IS INTENDED TO ADVERTISE FOR AND RECEIVE BIDS ON EACH OF THE SEVERAL UNITS FOR THE FURNISHING OF MATERIAL AND LABOR OR FOR THE FURNISHING OF MATERIAL ONLY OR LABOR ONLY FOR THE PHYSICAL ERECTION, AND TO AWARD CONTRACT OR CONTRACTS TO THE LOWEST AND BEST BIDDER OR BIDDERS. PRELIMINARY TO COMMENCEMENT OF THE PHYSICAL ERECTION, BUT AS A PART OF THE CONSTRUCTION WORK, IT IS NECESSARY TO SEND ENGINEERING PARTIES INTO THE FIELD FOR PURPOSES OF DETERMINING AND ESTABLISHING RIGHT OF WAY ROUTES AND STRUCTURE SITES AND TO OBTAIN ACCURATE AND DEFINITE ELEVATIONS, PROFILES, SECTION TIES, LAND DESCRIPTIONS, TRACT MAPS, AND OTHER ENGINEERING FIELD DATA.

IT IS PROPOSED TO ADVERTISE FOR BIDS AND TO ENTER INTO CONTRACT OR CONTRACTS WITH A PRIVATE FIRM OR FIRMS TO PERFORM THE NECESSARY FIELD WORK WITH THEIR OWN PERSONNEL AND EQUIPMENT PREPARATORY TO ACTUAL PHYSICAL ERECTION RATHER THAN FOR THE SOUTHWESTERN POWER ADMINISTRATION TO EMPLOY THE NECESSARY PERSONNEL ON A TEMPORARY BASIS AND TO PURCHASE THE NECESSARY EQUIPMENT THEREFOR.

CUSTOMARILY, THE INDIVIDUAL MEMBER OR MEMBERS OF SUCH PRIVATE FIRM OR FIRMS DO NOT PERSONALLY ENGAGE IN THE FIELD WORK, BUT OWN THE NECESSARY EQUIPMENT, INCLUDING TRANSPORTATION FACILITIES, AND MAINTAIN A TRAINED STAFF WHO PERFORM THE REQUIRED WORK UNDER THE DIRECTION AND SUPERVISION OF A MEMBER OF THE FIRM OR HIS DESIGNEE.

THE PREMISES STATED ABOVE SEEMINGLY CALL FOR YOU TO MAKE A DETERMINATION AS TO WHETHER THE PREVIOUSLY DESCRIBED FIELD WORK PREPARATORY TO ACTUAL PHYSICAL ERECTION CAN BE ACCOMPLISHED BY CONTRACT WITH A PRIVATE FIRM OR FIRMS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3709 OF THE REVISED STATUTES OR MUST BE ACCOMPLISHED WITH TEMPORARY PERSONNEL OF THIS DEPARTMENT EMPLOYED IN ACCORDANCE WITH THE CIVIL SERVICE LAWS AND REGULATIONS.

THE APPROPRIATION MADE IN PUBLIC LAW 478, APPROVED JULY 1, 1946, 60 STAT. 384, FOR THE SOUTHWESTERN POWER ADMINISTRATION, IS AS FOLLOWS:

OPERATION AND MAINTENANCE: FOR OPERATION AND MAINTENANCE OF THE SOUTHWESTERN POWER TRANSMISSION SYSTEM, MARKETING OF ELECTRIC POWER AND ENERGY, AND ADMINISTRATIVE EXPENSES CONNECTED THEREWITH; INCLUDING HIRE, MAINTENANCE, REPAIR AND OPERATION OF PASSENGER AUTOMOBILES, AND PRINTING AND BINDING; $100,000.

CONSTRUCTION: FOR CONSTRUCTION AND ACQUISITION (NOT TO EXCEED $1,352,415 FOR PURCHASE OF THE ARK-LA LINE FROM MARKHAM FERRY, OKLAHOMA, TO NIMROD, ARKANSAS) OF TRANSMISSION LINES, SUBSTATIONS, AND APPURTENANT FACILITIES, AND ADMINISTRATIVE EXPENSES CONNECTED THEREWITH; PURCHASE (NOT TO EXCEED TEN IN THE FISCAL YEAR 1947),HIRE, MAINTENANCE, REPAIR, AND OPERATION OF PASSENGER AUTOMOBILES; AND PRINTING AND BINDING; $7,500,000.

THE GENERAL RULE IS THAT PURELY PERSONAL SERVICES FOR THE GOVERNMENT ARE REQUIRED TO BE PERFORMED BY FEDERAL PERSONNEL UNDER GOVERNMENT SUPERVISION. SEE 6 COMP. GEN. 140; 15 ID. 951; 17 ID. 300; 24 ID. 924; 25 ID. 579. HOWEVER, IN DETERMINING WHETHER CERTAIN SERVICES ARE PERSONAL THERE ARE FOR CONSIDERATION SUCH FACTORS AS THE DEGREE OF DIRECT GOVERNMENT SUPERVISION OVER THE SERVICES PERFORMED, THE FURNISHING OF EQUIPMENT AND SUPPLIES TO PERFORM THE SERVICES, THE FURNISHING OF OFFICE OR WORKING SPACE, THE USE OF SPECIAL KNOWLEDGE OR EQUIPMENT, THE TEMPORARY CHARACTER OF SERVICES WHICH NO GOVERNMENT EMPLOYEE IS QUALIFIED OR AVAILABLE TO PERFORM, ETC., AND WHETHER THE FEE OR THE AMOUNT OF THE CONTRACT PRICE IS BASED UPON THE RESULTS TO BE ACCOMPLISHED RATHER THAN THE TIME ACTUALLY WORKED, AND WHETHER THE AMOUNT PAID AS COMPENSATION COVERS NOT ONLY THE CONTRACTOR'S TIME BUT THE USE OF HIS FACILITIES, OFFICE STAFF, EQUIPMENT, ETC. SEE 6 COMP. GEN. 180, 430; 11 ID. 99; 13 ID. 351; 17 ID. 300; 19 ID. 849; 21 ID. 388, 400; 22 ID. 700; 24 ID. 414, 925. SEE, ALSO, 15 OP. ATTY. GEN. 235, 538, AND DECISIONS OF MARCH 31, 1944, B-40704, AND JUNE 16, 1944, B-41943, AND YOUR PREDECESSOR.

YOUR LETTER, SUPRA, INDICATES THAT THE SOUTHWESTERN POWER ADMINISTRATION HAS NEITHER THE PERSONNEL NOR THE EQUIPMENT REQUIRED TO SECURE THE DATA WHICH NECESSARILY MUST BE OBTAINED PRIOR TO THE CONSTRUCTION OF TRANSMISSION LINES, SUBSTATIONS, AND APPURTENANT FACILITIES FOR WHICH FUNDS WERE PROVIDED BY PUBLIC LAW 478, SUPRA, AND THAT IF SUCH DATA WERE NOT OBTAINED BY CONTRACT WITH PRIVATE FIRMS IT WOULD BE NECESSARY FOR THE SOUTHWESTERN POWER ADMINISTRATION TO EMPLOY THE NECESSARY PERSONNEL ON A TEMPORARY BASIS AND TO PURCHASE THE EQUIPMENT REQUIRED TO PERFORM THE FIELD WORK WHICH WOULD BE INCIDENTAL TO OBTAINING SUCH DATA. FURTHER, IT IS UNDERSTOOD THAT PRIVATE FIRMS ARE AVAILABLE WHICH OWN THE NECESSARY EQUIPMENT INCLUDING TRANSPORTATION FACILITIES AND WHICH MAINTAIN TRAINED STAFFS WHICH ARE CAPABLE OF PERFORMING THE REQUIRED WORK UNDER THE DIRECTION AND SUPERVISION OF OFFICERS AND EMPLOYEES OF THOSE FIRMS. PRESUMABLY, CONTRACTS WITH SUCH FIRM WOULD RESULT IN THE MOST ECONOMICAL, EFFICIENT, AND EXPEDITIOUS PERFORMANCE OF THE SERVICES REQUIRED TO OBTAIN THE NECESSARY DATA. ALSO, THE OBTAINING OF THE DATA SOUGHT WILL NOT REQUIRE ANY DIRECT GOVERNMENTAL SUPERVISION OVER THE ACTUAL PERFORMANCE OF THE SERVICES.

UNDER SUCH CIRCUMSTANCES THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO OTHERWISE PROPER PAYMENTS UNDER CONTRACTS SUCH AS ARE PROPOSED FOR THE PERFORMANCE OF THE PRELIMINARY FIELD WORK WHERE SUCH CONTRACTS ARE AWARDED, IN EACH CASE, TO THE LOWEST RESPONSIBLE BIDDER AFTER THE SOLICITATION OF COMPETITIVE BIDS PURSUANT TO THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, AS AMENDED.