B-64686, APRIL 16, 1947, 26 COMP. GEN. 791

B-64686, APRIL 16, 1947, 26 COMP. GEN. 791

PERSONAL SERVICES - PRIVATE CONTRACT V. GOVERNMENT PERSONNEL - IRREGULAR AND INTERMITTENT SERVICE; CONTRACTING WITH MEMBERS OF EMPLOYEES' FAMILIES IN VIEW OF THE IRREGULAR AND INTERMITTENT CHARACTER OF SERVICES PERFORMED BY PERSONS WHO ARE REQUIRED TO BE AVAILABLE AT ANY TIME FOR TELEPHONE SWITCHING OPERATIONS OR WEATHER OBSERVATION AT FIRE DANGER STATIONS OF THE FOREST SERVICE, AND THE ADMINISTRATIVE DETERMINATION THAT IT IS IMPRACTICABLE TO FIX THE COMPENSATION OF SUCH PERSONS SOLELY UPON THE BASIS OF THE TIME ACTUALLY EMPLOYED, SUCH SERVICES ARE NOT TO BE REGARDED AS REQUIRING THE PERFORMANCE THEREOF BY REGULAR GOVERNMENT EMPLOYEES UNDER GOVERNMENT DIRECTION AND SUPERVISION, SO THAT SAID SERVICES MAY BE PROCURED BY CONTRACT WITH PRIVATE INDIVIDUALS, INCLUDING MEMBERS OF THE IMMEDIATE FAMILIES OF FOREST SERVICE EMPLOYEES.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, APRIL 14, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 17, 1947, AS FOLLOWS:

IN CONNECTION WITH THE PROTECTION OF THE NATIONAL FORESTS IN REMOTE AND ISOLATED LOCALITIES, EFFICIENT COMMUNICATIONS ARE ESSENTIAL TO FACILITATE REPORTING AND LOCATION OF FOREST FIRES; ORGANIZATION, DEVELOPMENT AND DIRECTION OF FIRE SUPPRESSION CREWS AND ACTIVITIES; AND FOR OTHER URGENT WORK. RELIANCE FOR SUCH COMMUNICATIONS FACILITIES MUST BE PLACED LARGELY UPON GOVERNMENT-OWNED AND OPERATED TELEPHONE SYSTEMS. THE NETWORKS OF TELEPHONE FACILITIES CREATE THE REQUIREMENT FOR TELEPHONE SWITCHBOARDS AT LINE JUNCTIONS, ETC.

FOR ADEQUATE COMMUNICATIONS SERVICE DURING A FIRE SEASON, (AND TO A LESSER EXTENT AT OTHER TIMES) IT IS NECESSARY THAT SOMEONE BE AVAILABLE TO PERFORM SWITCHING SERVICE WHENEVER NEEDED. THE FREQUENCY OF CALLS USUALLY DOES NOT JUSTIFY FULL TIME EMPLOYMENT AND THE CALLS ATTENDED MAY VARY FROM VERY FEW TO AN OCCASIONAL LARGE NUMBER. IN MOST CASES SATISFACTORY SERVICE CAN BE RENDERED BY PERSONS ENGAGED PRIMARILY IN OTHER WORK, RESULTING IN CONTINUOUS PRESENCE AT THE PARTICULAR LOCATION, SUCH AS HOUSEWORK OR COUNTRY STORE. PERSONS SO ENGAGED MAY DEVOTE MOST OF THEIR TIME TO THEIR REGULAR OCCUPATION AND STILL RENDER ALL SERVICE REQUIRED AT THE SWITCHBOARD. IT IS IMPRACTICABLE TO DETERMINE THE ACTUAL TIME SPENT AT THE SWITCHBOARD, WHICH MAY BE A MINUTE OR TWO ON EACH CALL; MOREOVER, SUCH TIME BASIS WOULD NOT RESULT IN COMMENSURATE REMUNERATION AS THE AVAILABILITY OF THE PERSON (OR ONE OF A GROUP) HAS A SERVICE VALUE FAR IN EXCESS OF THE ACTUAL TIME OF MAKING THE SWITCHBOARD CONNECTIONS.

THE LOCATIONS OF THE SWITCHBOARDS ARE DETERMINED BY NEED AND AVAILABILITY OF OPERATORS. IN MOST CASES IT IS POSSIBLE TO UTILIZE A LOCATION WHERE OPERATORS ARE AVAILABLE BY CONSTRUCTING A SHORT CONNECTING LINE FROM THE POINT OF JUNCTION. THIS LOCATION MAY BE IN THE GOVERNMENT-OWNED RESIDENCE OR COMBINATION OFFICE-RESIDENCE, A PRIVATELY OWNED DWELLING OF A GOVERNMENT EMPLOYEE, AN ISOLATED CROSSROADS STORE, OR AN INDIVIDUAL FARM RESIDENCE. OCCASIONALLY ONE OF SEVERAL LOCATIONS(FARM RESIDENCES, A STORE, ETC.) WOULD BE EQUALLY ADAPTABLE. HOWEVER, SINCE THE COST OF CONSTRUCTING THE TELEPHONE LINE TO A POINT WHERE SERVICE IS AVAILABLE AND INSTALLING THE SWITCHBOARD IS MATERIAL, IT IS CONSIDERED IMPRACTICAL FINANCIALLY TO CHANGE INSTALLATION SO LONG AS PROPER SERVICE CAN BE OBTAINED AT AN EXISTING LOCATION.

SUCH SWITCHBOARD SERVICES HAVE USUALLY BEEN OBTAINED THROUGH EMPLOYMENT OF THE OPERATOR AT EACH LOCATION. APPOINTMENTS ARE ON A PART-TIME BASIS (PERCENTAGE OF FULL TIME BASED ON ESTIMATE) IN THE CLASSIFIED SERVICE (USUALLY GRADE CAF-1). DECISION 25 C. G. 212 HOLDS THAT PAYMENT SHOULD BE MADE ON THE BASIS OF ACTUAL TIME WORKED BUT THERE APPEARS NO REASONABLE BASIS UNDER WHICH ACTUAL TIME MAY BE DETERMINED. HERETOFORE THE PART-TIME ESTIMATE HAS BEEN SUCH AS WOULD FAIRLY COMPENSATE FOR THE ACTUAL SERVICE RENDERED, INCLUDING THE FACTOR OF AVAILABILITY WHILE OTHERWISE ENGAGED. ALLOWANCE OF PAY FOR FULL TIME WOULD NOT BE FAIR TO THE GOVERNMENT, ALTHOUGH AVAILABLE FULL TIME, BECAUSE THE PERSON IS FREE TO DEVOTE ALMOST FULL TIME TO ANOTHER EXISTING OCCUPATION. FURTHERMORE, IT IS RECOGNIZED THAT UNDER THE EXISTING ARRANGEMENT NOT ALL THE SERVICE IS PERFORMED BY THE APPOINTEE. WHILE A STOREKEEPER IS SERVING A CUSTOMER, OR A HOUSEWIFE ENGAGED IN WORK THAT CANNOT BE SUSPENDED IMMEDIATELY, A STORE CLERK OR A MEMBER OF THE HOUSEHOLD MAY ATTEND THE CALL. OBVIOUSLY THERE CAN BE NO IMMEDIATE SUPERVISION OF THE APPOINTEE BY A GOVERNMENT OFFICIAL,AND IF THERE COULD BE THE CONDITIONS NECESSITATING SUBSTITUTE SERVICE COULD NOT BE CORRECTED.

IN OUR JUDGMENT, WORK PERFORMED UNDER THESE CONDITIONS IS PROPERLY A CONTRACT RATHER THAN A PERSONAL SERVICE. YOUR DECISION IS REQUESTED AS TO WHETHER THIS SERVICE MAY BE CONTRACTED.

ASSUMING AN AFFIRMATIVE ANSWER, FURTHER DECISION IS DESIRED AS TO THE PERMISSIBILITY OF CONTRACTING FOR SWITCHBOARD SERVICE WITH MEMBERS OF THE IMMEDIATE FAMILIES OF EMPLOYEES OF THE FOREST SERVICE ENGAGED IN OTHER WORK, SUCH AS A FOREST RANGER. PROCUREMENT OF SERVICE BY THIS MEANS WOULD BE EXPEDIENT IN MANY CASES WHERE SWITCHBOARD INSTALLATIONS ARE LOCATED IN THE RESIDENCE OF FOREST OFFICERS.

THERE EXISTS A SIMILAR SET OF CIRCUMSTANCES IN OBTAINING SERVICES OF WEATHER OBSERVERS AT FIRE DANGER STATIONS NOW OBTAINED THROUGH APPOINTMENT ON A PART-TIME BASIS. STATIONS ARE LOCATED SO AS TO OBTAIN AN EFFECTIVE CROSS-SECTION OF INSTRUMENTS, MAKE AND REPORT DETERMINATIONS AS TO FIRE DANGER. THE OBSERVER OPERATES AND MAINTAINS INSTRUMENTS AND EQUIPMENT CONSTITUTING A FIRE DANGER STATION, CONSISTING OF RAIN GAUGE, ANEMOMETER AND FUEL MOISTURE SCALES; SECURES READINGS SEVERAL TIMES DAILY; RECORDS DATA ON SUITABLE FORMS; MAKES TELEPHONIC REPORT TO DESIGNATED FOREST OFFICERS OF DAILY READINGS.

ALTHOUGH THE DUTIES DO NOT REQUIRE CONTINUOUS SERVICE OR AVAILABILITY THROUGHOUT THE DAY, THEY DO REQUIRE PERFORMANCE AT SPECIFIED TIMES (USUALLY THREE) EACH IS ESSENTIAL TO HAVE THE STATIONS REMAIN AT SPECIFIED LOCATIONS IN ORDER TO PROVIDE UNIFORM BASIS FOR FIRE WEATHER DATA OVER RELATIVELY LONG PERIODS (5 YEARS OR MORE). AS IN THE CASE OF TELEPHONE OPERATORS, IMMEDIATE SUPERVISION IS IMPRACTICAL AND PERFORMANCE IS JUDGED BY RESULTS OBTAINED. PRESENT OBSERVERS ARE EMPLOYED IN THE CLASSIFIED SERVICE (USUALLY GRADE SP-2) ON A PART-TIME (ESTIMATED PERCENTAGE OF FULL- TIME) BASIS.

YOUR DECISION IS REQUESTED ALSO AS TO PROCUREMENT OF WEATHER OBSERVATIONS BY CONTRACT.

WE WISH TO MAKE IT CLEAR THAT THE MATTER INVOLVED IN THIS SUBMISSION IS IN NO WAY RELATED TO ANY QUESTION OF ADEQUACY OR INADEQUACY IN PERSONNEL CEILING LIMITATIONS, BUT ARISES SOLELY FROM THE ADMINISTRATIVE DIFFICULTIES INVOLVED IN ATTEMPTING TO PAY FOR THE SERVICES IN QUESTION ON THE BASIS OF TIME WORKED. THE NUMBER OF EMPLOYEES INVOLVED IS TRIVIAL; FURTHERMORE, SHOULD APPROVAL BE GRANTED FOR SECURING THE SERVICES ON A CONTRACT BASIS, WE WOULD IMMEDIATELY REFLECT SUCH ACTION IN A CORRESPONDING REDUCTION IN REQUEST FOR PERSONNEL CEILING DETERMINATIONS.

THE REFERRED-TO DECISION OF AUGUST 22, 1945, 25 COMP. GEN. 212, WAS NOT INTENDED TO HOLD, AS APPEARS TO BE THE VIEW EXPRESSED IN YOUR LETTER, THAT ON AND AFTER JULY 1, 1945, PERSONS NOT REQUIRED TO WORK FULL-TIME ARE TO BE PAID ONLY FOR THE "TIME ACTUALLY WORKED.' ON THE CONTRARY, IT LONG HAS BEEN RECOGNIZED THAT THE AVAILABILITY FOR THE PERFORMANCE OF DUTY IS A FACTOR PROPERLY FOR CONSIDERATION IN THE FIXING OF COMPENSATION FOR "PART- TIME" AS WELL AS FULL-TIME EMPLOYEES. THE STATEMENT IN THE SAID DECISION THAT PART-TIME WORK SHOULD BE PAID FOR "UPON THE BASIS OF THE NUMBER OF HOURS ACTUALLY EMPLOYED, THE ANNUAL RATE FIXED BY THE CLASSIFICATION ACT FOR FULL-TIME EMPLOYEES TO BE DIVIDED PURSUANT TO THE FORMULA PRESCRIBED BY SECTION 604 (D) OF THE NEW PAY STATUTE * * * TO DETERMINE THE RATE PER HOUR" MERELY SETS FORTH THE FORMULA FOR PAYING "PART-TIME" EMPLOYEES UPON AN HOURLY BASIS AS DISTINGUISHED FROM TH PRO-RATA PER ANNUM BASIS PREVIOUSLY USED. CONSEQUENTLY, THAT STATEMENT IS NOT TO BE VIEWED AS AUTHORITY FOR CONTRACTING FOR PERSONAL SERVICES NORMALLY TO BE PERFORMED BY "PART TIME" EMPLOYEES OF THE GOVERNMENT APPOINTED IN THE USUAL MANNER.

IT IS A GENERAL RULE THAT PERSONAL SERVICES NECESSARY IN CONNECTION WITH GOVERNMENTAL ACTIVITIES ARE FOR PERFORMANCE BY REGULAR EMPLOYEES OF THE GOVERNMENT WHO ARE RESPONSIBLE TO THE GOVERNMENT AND SUBJECT TO ITS SUPERVISION. HOWEVER, IN CERTAIN INSTANCES, BY REASON OF THE NATURE OF THE WORK AND THE EXISTENCE OF CONDITIONS NOT PERMITTING ITS PERFORMANCE IN THE USUAL MANNER, THE PROCUREMENT OF THE REQUIRED SERVICE BY CONTRACT HAS BEEN SANCTIONED. SEE 11 COMP. GEN. 99; 21 ID. 400; 486; 24 ID. 924, AND DECISION CITED THEREIN.

IN VIEW OF THE REPRESENTATIONS MADE IN YOUR LETTER RESPECTING THE IRREGULAR AND INTERMITTENT CHARACTER OF THE SERVICES PERFORMED BY THE PERSONS ENGAGED IN TELEPHONE SWITCHING OPERATIONS FOR THE COLLECTION OF FIRE WEATHER DATA--- NECESSARY ADJUNCTS TO THE RESPONSIBILITIES IMPOSED UPON THE AGRICULTURE DEPARTMENT IN THE PROTECTION AND MANAGEMENT OF NATIONAL FORESTS--- TOGETHER WITH THE FACT THAT IT ADMINISTRATIVELY HAS BEEN DETERMINED THAT IT IS IMPRACTICABLE, BOTH FROM THE STANDPOINT OF THE INTERESTS OF THE GOVERNMENT AND THE PERSONS ENGAGED IN SUCH WORK, TO FIX THEIR COMPENSATION SOLELY UPON THE BASIS OF THE TIME ACTUALLY EMPLOYED, IT APPEARS THAT THE WORK INVOLVED IS NOT SUCH AS IS REQUIRED TO BE PERFORMED BY REGULAR GOVERNMENT EMPLOYEES UNDER THE DIRECTION AND SUPERVISION OF THE GOVERNMENT. ACCORDINGLY, IN VIEW OF THE FACTS AND CIRCUMSTANCES HERE APPEARING, YOU ARE ADVISED THAT THIS OFFICE WILL NOT OBJECT TO THE USE OF THE APPLICABLE APPROPRIATIONS FOR THE FOREST SERVICE FOR THE PROCUREMENT OF THE SPECIFIED SERVICES BY CONTRACT WITH PRIVATE INDIVIDUALS, INCLUDING THE MEMBERS OF THE IMMEDIATE FAMILIES OF EMPLOYEES OF THE FOREST SERVICE. THE QUESTIONS PRESENTED IN YOUR LETTER ARE ANSWERED ACCORDINGLY.