B-69461, SEPTEMBER 22, 1947, 27 COMP. GEN. 168

B-69461, SEPTEMBER 22, 1947, 27 COMP. GEN. 168

PERSONAL SERVICES - ACCOUNTANTS - SECTION 15 OF THE ACT OF AUGUST 2, 1946, AS REMOVING RESTRICTION AGAINST EMPLOYMENT OF THE GENERAL AUTHORITY IN SECTION 15 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, FOR THE PROCUREMENT OF EXPERT OR CONSULTANT SERVICES BY CONTRACT DOES NOT OPERATE TO OVERCOME THE SPECIFIC PROHIBITION IN SECTION 5 OF THE ACT OF APRIL 6, 1914, AGAINST THE EMPLOYMENT OF ACCOUNTANTS, ETC., BY CONTRACT TO INAUGURATE NEW OR CHANGE OLD METHODS OF TRANSACTING BUSINESS OF THE UNITED STATES.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, SEPTEMBER 22, 1947:

THERE HAS BEEN CONSIDERED THE LETTER OF SEPTEMBER 9, 1947, FROM THE ACTING ADMINISTRATOR OF VETERANS' AFFAIRS, AS FOLLOWS:

I HAVE THE HONOR TO REQUEST YOUR DECISION ON THE QUESTION WHETHER THERE IS AUTHORITY AT LAW TO EXPEND APPROPRIATED FUNDS FOR THE PAYMENT OF COMPENSATION OR EXPENSES, OR BOTH, TO A LIMITED NUMBER OF SPECIALLY QUALIFIED PERSONS UNDER A CONTRACTUAL AGREEMENT WHEREBY THEY WILL SURVEY THE ESTABLISHED PROCEDURES AND PRACTICES OF THE VETERANS ADMINISTRATION WITH RESPECT TO NATIONAL SERVICE LIFE INSURANCE, INCLUDING THOSE PROCEDURES RELATIVE TO THE RECEIPT, ACCOUNTING FOR, RECORDING AND ACKNOWLEDGMENT OF PREMIUM PAYMENTS AND NOTICES RESPECTING PREMIUMS DUE. THE INQUIRY IS OCCASIONED BY INSISTENCE IN CERTAIN QUARTERS THAT SUCH A SURVEY SHOULD BE MADE OF THE EXISTING PROCEDURES CONCERNING NATIONAL SERVICE LIFE INSURANCE AND A RESULTANT QUESTION WHETHER THERE EXISTS ANY SUCH EMPLOYMENT IS PROHIBIT BY STATUTE.

SECTION 608 OF THE NATIONAL SERVICE LIFE INSURANCE ACT ( TITLE VI, PUBLIC LAW 801, 76TH CONGRESS) 38 U.S.C. 808, PROVIDES THAT THE ADMINISTRATOR OF VETERANS' AFFAIRS SHALL ADMINISTER, EXECUTE, AND ENFORCE THE PROVISIONS OF THE ACT AND THAT ALL OFFICERS AND EMPLOYEES OF THE VETERANS ADMINISTRATION SHALL PERFORM SUCH DUTIES IN THAT CONNECTION AS MAY BE ASSIGNED BY THE ADMINISTRATOR. THE SPECIFIC AUTHORITY OF THE ADMINISTRATOR TO EMPLOY EXPERTS AND OTHERS DERIVES FROM SECTION 4 OF THE WORLD WAR VETERANS ACT ( ACT OF JUNE 7, 1924, AS AMENDED), 38 U.S.C. 425, A POWER CARRIED FORWARD BY THE CONSOLIDATION ACT, PUBLIC LAW 536, 71ST CONGRESS, AND SAVED FROM REPEAL BY SECTION 7, PUBLIC LAW 2, 73D CONGRESS. WITH RESPECT TO THE ADMINISTRATION OF THE INSURANCE ACTS, INCLUDING THE NATIONAL SERVICE LIFE INSURANCE ACT, SUPRA, THERE EXISTS NO SPECIFIC STATUTORY PROVISION AUTHORIZING THE EMPLOYMENT OF EXPERTS OR OTHERS ON A CONTRACTUAL BASIS, THAT IS, WITHOUT REGARD TO THE ACTS AND REGULATIONS PERTAINING THE THE CIVIL SERVICE, SUCH AS IS GRANTED, FOR EXAMPLE, WITH RESPECT TO CERTAIN OTHER LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION BY SECTION 1500, SERVICEMEN'S READJUSTMENT ACT OF 1944 ( PUBLIC LAW 346, 78TH CONGRESS), 38 U.S.C. 697, OR SECTION 14 OF THE MEDICAL ACT ( PUBLIC LAW 293, 79TH CONGRESS), 38 U.S.C. 15M, WITH RESPECT TO TEMPORARY EMPLOYMENT OF PERSONS FOR CERTAIN PROFESSIONAL POSITIONS. PRIOR TO THE CURRENT FISCAL YEAR THERE WAS CONTAINED IN THE APPROPRIATION ACTS FOR THE VETERANS ADMINISTRATION IN THAT PART PERTAINING TO SALARIES AND EXPENSES, SPECIFIC PROVISION FOR THE PROCUREMENT OF ACTUARIAL SERVICES WITHOUT COMPETITION. THIS LANGUAGE WAS DROPPED FROM THE APPROPRIATION ACT FOR THE CURRENT FISCAL YEAR IN VIEW OF THE PROVISIONS OF SECTIONS 9 AND 15 OF PUBLIC LAW 600, 79TH CONGRESS, 5 U.S.C. 413 AND 55A, RESPECTIVELY, AND THERE WAS INSERTED IN THAT PART OF THE APPROPRIATION ACT PERTAINING TO THE VETERANS ADMINISTRATION ( PUBLIC LAW 269, 80TH CONGRESS), THE LANGUAGE "SERVICES AS AUTHORIZED BY SECTION 15 OF PUBLIC LAW 600, SEVENTY-NINTH CONGRESS.'

IT WAS THE APPARENT PURPOSE OF THE CONGRESS IN ENACTING SAID PUBLIC LAW 600 TO CARRY OUT THE EXPRESSED VIEWS OF THE BUREAU OF THE BUDGET TO AUTHORIZE BROAD DISCRETION IN THE HEAD OF ANY DEPARTMENT OR INDEPENDENT AGENCY TO SECURE SUCH SERVICES, EITHER WITH OR WITHOUT REGARD TO SECTION 3709, REVISED STATUTES, AS AMENDED BY SECTION 9 OF SAID PUBLIC LAW 600, DEPENDENT UPON WHETHER THE CIRCUMSTANCES WERE SUCH AS TO BRING THE CASE WITHIN SAID SECTION 9 OR SECTION 15. SPECIFICALLY, SECTION 15 AUTHORIZES EACH HEAD OF DEPARTMENT OR AGENCY "WHEN AUTHORIZED IN AN APPROPRIATION OR OTHER ACT" TO PROCURE THE TEMPORARY OR INTERMITTENT SERVICES OF EXPERTS OR CONSULTANTS OR ORGANIZATIONS THEREOF WITHOUT REGARD TO THE CIVIL SERVICE AND CLASSIFICATION LAWS, BUT AT A PER DIEM RATE NOT IN EXCESS OF THE EQUIVALENT OF THE HIGHEST RATE PAYABLE UNDER THE CLASSIFICATION ACT AND, WITH AN EXCEPTION NOT HERE MATERIAL, WITHOUT COMPETITION. THE LANGUAGE QUOTED IN THE APPROPRIATION ACT FOR THE PRESENT FISCAL YEAR WAS INTENDED TO AUTHORIZE THE EXPENDITURE OF APPROPRIATIONS FOR SALARIES AND EXPENSES AT THE VETERANS ADMINISTRATION FOR SUCH SERVICES OF EXPERTS OR CONSULTANTS AS ENVISAGED BY SECTION 15, PUBLIC LAW 600. IT WOULD THEREFORE APPEAR THAT AUTHORITY WOULD EXIST TO EMPLOY PERSONS ON CONTRACT FOR THE SURVEY MENTIONED IN THE FIRST PARAGRAPH OF THIS LETTER, UNLESS PROHIBITED BY SECTION 5 OF THE URGENT DEFICIENCY ACT FOR THE FISCAL YEAR 1914, 5 U.S.C. 55. SAID SECTION PROHIBITS, WITH THE EXCEPTION PERTAINING TO THE GENERAL ACCOUNTING OFFICE, THE EXPENDITURE OF APPROPRIATED MONIES FOR COMPENSATION OR EXPENSES "OF ACCOUNTANTS OR EXPERTS INAUGURATING NEW OR CHANGING OLD METHODS OF TRANSACTING THE BUSINESS OF THE UNITED STATES" UNLESS THERE IS STATUTORY AUTHORITY THEREFOR. IT WOULD APPEAR THAT BECAUSE OF THE MUCH BROADER LATER ENACTMENTS, REFERRED TO HEREINBEFORE, THE PROHIBITION OF THE 1914 ACT WOULD NOT APPLY, PARTICULARLY TO THE TYPE OF SURVEY WHICH IS DESIRED, ALBEIT THE RECOMMENDATION GROWING OUT OF SUCH SURVEY WOULD INVOLVE EITHER CHANGING OR PRESERVING ACCOUNTING PROCEDURES ESTABLISHED BY THE VETERANS ADMINISTRATION WITH THE APPROVAL OF THE GENERAL ACCOUNTING OFFICE AS TO FORMS, SYSTEMS AND PROCEDURES PURSUANT TO THE ACT OF JUNE 10, 1921, 31 U.S.C. 49.

INASMUCH AS THE ADMINISTRATOR OF VETERANS' AFFAIRS, GENERAL OMAR N. BRADLEY, IMMEDIATELY PRIOR TO HIS DEPARTURE FOR TEMPORARY DUTY IN EUROPE, DIRECTED AN INQUIRY WHETHER THERE IS LEGAL AUTHORITY FOR SUCH SURVEY--- A POINT ON WHICH THERE HAVE ARISEN SOME DIVERGENT VIEWS AS TO AVAILABILITY OF APPROPRIATED FUNDS--- IT WILL BE APPRECIATED IF I MAY HAVE THE ADVANTAGE OF YOUR DECISION AT THE EARLIEST POSSIBLE MOMENT.

I THINK IT IS EMINENTLY CLEAR FROM THE MATTERS DELINEATED IN THE FOREGOING LETTER THAT THE PROPOSED EMPLOYMENT OF EXPERTS TO SURVEY THE ESTABLISHED PROCEDURES AND PRACTICES OF THE VETERANS' ADMINISTRATION WITH RESPECT TO NATIONAL SERVICE LIFE INSURANCE, IS FOR THE PURPOSE OF EFFECTING CHANGES IN THE METHODS OF TRANSACTING THE BUSINESS OF THE UNITED STATES OR FOR DETERMINING WHETHER SUCH CHANGES ARE NECESSARY OR DESIRABLE; AND THE CIRCUMSTANCES THAT THE CONTRACTS OF EMPLOYMENT MAY NOT SPECIFICALLY PROVIDE FOR INAUGURATING NEW OR CHANGING OLD METHODS OF TRANSACTING BUSINESS, OR THAT CHANGES MAY OR MAY NOT BE EFFECTED AS A RESULT OF SAID SURVEY, IS IMMATERIAL SO FAR AS THE APPLICATION OF THE CITED SECTION 5 OF THE ACT OF APRIL 6, 1914, 38 STAT. 335, 5 U.S.C. 55, IS CONCERNED. 1 COMP. GEN. 252; 5 ID. 608. THUS, THE CONCLUSION IS INESCAPABLE THAT THE EMPLOYMENT OF THE PERSONS HERE INVOLVED WOULD BE FOR A PURPOSE REPROBATED BY THE ACT REFERRED TO, UNLESS THERE MAY BE ACCEPTED THE VIEW EXPRESSED IN THE ABOVE-QUOTED LETTER THAT THE ENACTMENT OF SECTION 15 OF PUBLIC LAW 600, APPROVED AUGUST 2, 1946, 60 STAT. 810, OPERATES AS A REPEAL OF THE 1914 STATUTE.

STANDING AGAINST THIS VIEW, HOWEVER, IS THE FUNDAMENTAL PRINCIPLE THAT REPEALS BY IMPLICATION ARE NOT FAVORED AND A LATER LAW WILL NOT BE CONSTRUED AS REPEALING AN EARLIER LAW UNLESS THE TWO LAWS ARE IN IRRECONCILABLE CONFLICT OR UNLESS THE LATER LAW COVERS THE WHOLE GROUND OCCUPIED BY THE EARLIER AND IS CLEARLY INTENDED TO BE A SUBSTITUTE FOR IT. SEE 26 COMP. GEN. 488, AND THE CASES CITED THEREIN. ALSO, IT IS WELL SETTLED THAT A GENERAL ACT IS NOT TO BE CONSTRUED AS APPLYING TO CASES COVERED BY A PRIOR SPECIAL ACT ON THE SAME SUBJECT, UNLESS IT CONTAINS AN EXPRESS REPEAL PROVISION OR THERE IS AN IRRECONCILABLE CONFLICT OR ABSOLUTE INCOMPATIBILITY BETWEEN THE STATUTES. WASHINGTON V. MILLER, 235 U.S. 422, 427.

THESE PRINCIPLES APPEAR CLEARLY APPLICABLE TO THE PRESENT QUESTION. PUBLIC LAW 600 CONTAINS NO PROVISION EXPRESSLY REPEALING SECTION 5 OF THE ACT OF APRIL 6, 1914, AND ITS LEGISLATIVE HISTORY DOES NOT DISCLOSE ANY SINGLE DECISIVE PIECE OF EVIDENCE OF A LEGISLATIVE INTENTION TO DO SO. NOR IS THERE PERCEIVED ANY SUBSTANTIAL BASIS FOR THE VIEW THAT THERE IS AN "IRRECONCILABLE CONFLICT OR ABSOLUTE INCOMPATIBILITY" BETWEEN THE GENERAL PROVISIONS OF SECTION 15, PUBLIC LAW 600, DEALING WITH THE AUTHORITY TO OBTAIN THE SERVICES OF EXPERTS OR CONSULTANTS, AND THE SPECIFIC TERMS OF THE ACT OF APRIL 6, 1914, CIRCUMSCRIBING THE EMPLOYMENT OF EXPERTS UNDER THE PARTICULAR CIRCUMSTANCES OUTLINED THEREIN. SUCH GENERAL PROVISIONS HAVE A BROAD FIELD OF REASONABLE OPERATION ASIDE FROM THE SPECIFIC PROVISIONS OF THE PREVIOUSLY ENACTED 1914 STATUTE; AND, TO THE EXTENT THAT THERE MAY BE ANY CONFLICT BETWEEN THE GENERAL STATUTE AND SUCH PRIOR SPECIFIC STATUTORY RESTRICTIONS, THE LATTER ARE TO BE CONSIDERED AS EXCEPTIONS TO THE GENERAL STATUTE.

IN VIEW OF THE FOREGOING, I AM CONSTRAINED TO HOLD THAT THE PROCUREMENT OF THE SERVICES OF EXPERTS FOR THE PURPOSE SET FORTH IN THE ABOVE LETTER WOULD BE IN CONTRAVENTION OF THE TERMS OF THE ACT OF APRIL 6, 1914, SUPRA, AND IS, THEREFORE, UNAUTHORIZED.