B-73100, MARCH 10, 1948, 27 COMP. GEN. 503

B-73100: Mar 10, 1948

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GOVERNMENT PERSONNEL - RETIREMENT OF GOVERNMENT RECORDS IN VIEW OF THE OPINION OF THE ARCHIVIST OF THE UNITED STATES THAT THE RETIREMENT OF GOVERNMENT RECORDS FOR PRESERVATION OR DESTRUCTION PURSUANT TO APPLICABLE LAWS AND REGULATIONS IS A FUNCTION INVOLVING PURELY PERSONAL SERVICES FOR PERFORMANCE BY GOVERNMENT PERSONNEL. THAT SUCH FUNCTION IS BEING PERFORMED PRESENTLY BY QUALIFIED AND AVAILABLE EMPLOYEES OF THE WAR ASSETS ADMINISTRATION INCIDENT TO ITS LIQUIDATION. THE PROCUREMENT OF SUCH PERSONAL SERVICES BY PRIVATE CONTRACT WOULD BE IN CONTRAVENTION OF THE GENERAL RULE THAT PURELY PERSONAL SERVICES MAY NOT BE OBTAINED BY CONTRACT BUT ARE REQUIRED TO BE PERFORMED BY REGULAR SUPERVISED GOVERNMENT EMPLOYEES.

B-73100, MARCH 10, 1948, 27 COMP. GEN. 503

PERSONAL SERVICES - PRIVATE CONTRACT V. GOVERNMENT PERSONNEL - RETIREMENT OF GOVERNMENT RECORDS IN VIEW OF THE OPINION OF THE ARCHIVIST OF THE UNITED STATES THAT THE RETIREMENT OF GOVERNMENT RECORDS FOR PRESERVATION OR DESTRUCTION PURSUANT TO APPLICABLE LAWS AND REGULATIONS IS A FUNCTION INVOLVING PURELY PERSONAL SERVICES FOR PERFORMANCE BY GOVERNMENT PERSONNEL, AND THAT SUCH FUNCTION IS BEING PERFORMED PRESENTLY BY QUALIFIED AND AVAILABLE EMPLOYEES OF THE WAR ASSETS ADMINISTRATION INCIDENT TO ITS LIQUIDATION, THE PROCUREMENT OF SUCH PERSONAL SERVICES BY PRIVATE CONTRACT WOULD BE IN CONTRAVENTION OF THE GENERAL RULE THAT PURELY PERSONAL SERVICES MAY NOT BE OBTAINED BY CONTRACT BUT ARE REQUIRED TO BE PERFORMED BY REGULAR SUPERVISED GOVERNMENT EMPLOYEES. SECTION 15 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, PROVIDING FOR THE PROCUREMENT OF OTHERWISE AUTHORIZED EXPERT SERVICES BY CONTRACT, MAY NOT BE REGARDED AS PERMITTING A GOVERNMENT AGENCY IN THE PROCESS OF LIQUIDATION TO PROCURE EXPERT SERVICES BY PRIVATE CONTRACT IN CONNECTION WITH THE RETIREMENT OF GOVERNMENT RECORDS FOR PRESERVATION OR DESTRUCTION PURSUANT TO APPLICABLE LAWS AND REGULATIONS, WHICH SERVICES ARE BEING PERFORMED EFFICIENTLY AND ADEQUATELY BY REGULAR EMPLOYEES OF SUCH AGENCY. A CONTRACT WITH A LIQUIDATING GOVERNMENT AGENCY UNDER WHICH SERVICES WOULD BE PERFORMED WORKING TOWARD THE ATTAINMENT OF IMPROVED METHODS AND PROCEDURES, ELIMINATION OF DUPLICATION, ETC., IN CONNECTION WITH THE RETIREMENT OF GOVERNMENT RECORDS FOR PRESERVATION OR DESTRUCTION PURSUANT TO APPLICABLE LAWS AND REGULATIONS, WOULD BE IN CONTRAVENTION OF THE PROVISIONS OF SECTION 5 OF THE ACT OF APRIL 6, 1914, GENERALLY PROHIBITING THE USE OF APPROPRIATED FUNDS TO PAY THE COMPENSATION OR EXPENSES OF ACCOUNTANTS OR OTHER EXPERTS INAUGURATING NEW OR CHANGING OLD METHODS OF TRANSACTING THE BUSINESS OF THE UNITED STATES.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, WAR ASSETS ADMINISTRATION, MARCH 10, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 23, 1948, AS FOLLOWS:

WAR ASSETS ADMINISTRATION, AS YOU KNOW, IS NOW WORKING TOWARD THE ULTIMATE TERMINATION OF ITS FUNCTIONS AS A DISPOSAL AGENCY OF SURPLUS PROPERTY. AS A NECESSARY INCIDENT OF THIS TERMINATION, IT IS REQUIRED BY LAW TO TAKE NECESSARY STEPS TO RETIRE ITS VOLUMINOUS RECORDS BY PERMANENT OR TEMPORARY PRESERVATION OR BY DESTRUCTION, WHICHEVER MAY BE DICTATED BY LAW AND ADMINISTRATIVE DISCRETION. BECAUSE THIS ADMINISTRATION IS APPROACHING FINAL STAGES OF LIQUIDATION, IT HAS BECOME INCREASINGLY DIFFICULT TO RETAIN SUFFICIENT PERSONNEL QUALIFIED TO PARTICIPATE IN THIS NECESSARY FUNCTION, MUCH LESS TO CONSIDER HIRING ADDITIONAL PERSONNEL TO AUGMENT OUR PRESENT PROGRAM IN THIS CONNECTION.

FLASHDEX, A DIVISION OF THE WALTER M. BALLARD COMPANY, WASHINGTON,D.C., HAS OFFERED TO PERFORM CERTAIN ESSENTIAL PHASES OF THE RETIREMENT OF RECORDS OF THIS ADMINISTRATION NOW LOCATED IN WASHINGTON AND OUR FIELD OFFICES. IF THESE SERVICES ARE AVAILED OF, IT IS CONTEMPLATED THAT THERE MAY THEN BE RELEASED CERTAIN WAR ASSETS ADMINISTRATION PERSONNEL, WHO ARE NOW PERFORMING WITH THE CARE, HANDLING AND DISPOSAL OF SURPLUS PROPERTY WHICH, OF COURSE, ARE THE PRIMARY FUNCTIONS OF THIS ADMINISTRATION.

THE SERVICES WHICH THIS COMPANY IS PROPOSING TO PERFORM MAY BE STATED AS WORKING TO THE ATTAINMENT OF:

1. IMPROVED METHODS AND PROCEDURES TO ACCOMPLISH THE ELIMINATION AND RETIREMENT OF CURRENT AND INACTIVE RECORDS;

2. STANDARDIZATION AND SIMPLIFICATION OF FILING PROCEDURES AND METHODS;

3.ELIMINATION OF DUPLICATIONS;

4. COORDINATION OF DEPARTMENTAL USE OF RECORDS WITH A RESULTANT ELIMINATION OF DUPLICATION;

5. GREATER UTILIZATION OF EXISTING EQUIPMENT DEVOTED TO RECORDS;

6. BRINGING BETTER HOUSEKEEPING IN THE MANAGEMENT AND CARE OF RECORDS;

7. IDENTIFICATION AND ELIMINATION OF RECORDS FOR WHICH THERE IS NO USE AND NO REQUIREMENT TO PRESERVE;

8. PREPARATION OF RECORD RETIREMENT SCHEDULES;

9. A COMPLETE INVENTORY OF OUR RECORDS, THEIR IDENTITY AND THEIR LOCATION;

10. DETERMINATION OF THE TYPES OF RECORDS WHICH ARE DEEMED TO POSSESS CONTINUING VALUE BECAUSE OF LEGAL, RESEARCH, HISTORICAL OR ADMINISTRATIVE VALUE, AND WHICH COULD BE FILMED TO THE ECONOMY OF THE GOVERNMENT. THIS STUDY WOULD CARRY WITH ITS FINDING OF COSTS AND TECHNICAL PROCEDURES NECESSARY IN A FILMING OPERATION.

FOR THESE SERVICES THE COMPANY WOULD BE PAID A CONSIDERATION BASED ON THE NUMBER OF MAN-DAYS REQUIRED TO COMPLETE THE PROJECT AT THE UNIT OF $150.00 PER MAN-DAY. IN ORDER TO PROVIDE THE COMPANY WITH SUFFICIENT ASSURANCE TO WARRANT ITS UNDERTAKING THIS PROJECT, THE COMPANY HAS ASKED THAT IT BE GUARANTEED A MINIMUM OF AT LEAST 750 MAN DAYS.

ASIDE FROM CERTAIN RESTRICTIVE STATUTES WHICH MAY HAVE SOME BEARING ON THIS PROPOSED AGREEMENT, WHICH STATUTES ARE DISCUSSED HEREIN IN FURTHER DETAIL, THIS ADMINISTRATION, AS YOU KNOW, HERETOFORE HAS ADOPTED A POLICY OF NOT COMMITTING ITSELF TO A MINIMUM GUARANTEE. HOWEVER, THIS REQUEST BY THE COMPANY IS UNDERSTANDABLE SINCE IT WOULD OBVIOUSLY NOT BE FEASIBLE FOR THE COMPANY TO COMMIT ITSELF TO AN IMMEDIATE EXPENDITURE OF FUNDS AND RECRUITMENT OF PERSONNEL IN THE ABSENCE OF AN AGREEMENT ON THE PART OF THIS ADMINISTRATION TO ASSURE THE COMPANY THAT IT WOULD BE COMPENSATED FOR SUCH COMMITMENTS.

THE COMPANY REPRESENTS THAT IT HAS AVAILABLE TO IT A COMPETENT STAFF OF PERSONNEL WELL QUALIFIED TO PERFORM THE FUNCTIONS PERTAINING TO RETIREMENT OF RECORDS AND THAT OTHER GOVERNMENTAL AGENCIES AND PRIVATE BUSINESSES HAVE USED THESE SERVICES TO THEIR ADVANTAGE AND ECONOMY.

SECTION 5 OF THE ACT OF APRIL 6, 1914, 38 STAT. 335 (5 U.S.C. 55) PROVIDES THAT NO PART OF ANY MONEY APPROPRIATED IN "ANY ACT SHALL BE USED FOR COMPENSATION OR PAYMENT OF EXPENSES OF ACCOUNTANTS OR OTHER EXPERTS INAUGURATING NEW OR CHANGING OLD METHODS OF TRANSACTING THE BUSINESS OF THE UNITED STATES * * * UNLESS AUTHORITY FOR EMPLOYMENT OF SUCH SERVICES OR PAYMENT OF SUCH EXPENSES IS STATED IN SPECIFIC TERMS IN THE ACT MAKING PROVISION THEREFOR AND THE RATE OF COMPENSATION FOR SUCH SERVICES OR EXPENSES IS SPECIFICALLY FIXED THEREIN, * * *.' WHILE THIS AGENCY IS UNAWARE OF ANY PROVISION IN ANY ACT APPLICABLE TO THIS ADMINISTRATION PERMITTING SUCH EMPLOYMENT AND SPECIFICALLY FIXING THE RATE OF SUCH COMPENSATION, IT IS BELIEVED THAT THE SERVICES CONTEMPLATED BY THE PROPOSED AGREEMENT WOULD NOT BE "INAUGURATING NEW OR CHANGING OLD METHODS OF TRANSACTING THE BUSINESS OF THE UNITED STATES" WITHIN THE MEANING OF THAT ACT.

THE ACT OF JULY 7, 1943, 57 STAT. 381 (44 U.S.C. 366, ET SEQ.) DIRECTS THE NATIONAL ARCHIVES COUNCIL TO PROMULGATE REGULATIONS ESTABLISHING (1) PROCEDURES FOR THE COMPILING AND SUBMITTING TO THE ARCHIVIST OF THE UNITED STATES OF LISTS AND SCHEDULES OF RECORDS PROPOSED FOR DISPOSAL, (2) PROCEDURES FOR THE DISPOSAL OF RECORDS AUTHORIZED FOR DISPOSAL AND (3) STANDARDS FOR THE REPRODUCTION OF RECORDS BY PHOTOGRAPHIC OR MICRO- PHOTOGRAPHIC PROCESSES WITH A VIEW TO THE DISPOSAL OF THE ORIGINAL RECORDS. SUCH REGULATIONS, WHEN APPROVED BY THE PRESIDENT, SHALL BE BINDING ON ALL AGENCIES OF THE UNITED STATES GOVERNMENT. IT WILL BE NOTED THAT THERE IS NO SPECIFIC REQUIREMENT IN THIS LAW WHICH WOULD PROHIBIT A GOVERNMENT AGENCY FROM PERFORMING THE TASK OF LISTING DOCUMENTS WHICH ULTIMATELY WILL BE SUBMITTED TO THE ARCHIVIST FOR AUTHORITY TO DESTROY AND IT WOULD SEEM THAT PRELIMINARY STEPS COULD BE TAKEN WITH A VIEW TO SUCH LISTING, AND CLASSIFYING SUCH DOCUMENTS WITHOUT VIOLATING THE ABOVE-QUOTED LAW.

THIS OFFICE IS ALSO AWARE OF THE LONG ESTABLISHED RULE THAT INSOFAR AS THE DEPARTMENTS AND ESTABLISHMENTS OF THE FEDERAL GOVERNMENT ARE CONCERNED, 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; AND 25 ID. 579, 581. HOWEVER, IT SEEMS THAT THE FLASHDEX PROPOSAL IS MORE IN THE NATURE OF A CONTRACT FOR THE PURCHASE OF TECHNICAL SERVICES THAN PERSONAL SERVICES UNDER STRICT GOVERNMENTAL SUPERVISION, AND HENCE MAY NOT BE WITHIN THE GENERAL RULE. 25 COMP. GEN. 579.

THIS ADMINISTRATION HAS AUTHORITY IN ITS APPROPRIATION ACT, PUBLIC LAW 269, 80TH CONGRESS, ST SESSION, APPROVED JULY 30, 1947, TO ENGAGE THE SERVICES OF EXPERTS BY CONTRACT NOTWITHSTANDING THE PROVISIONS OF ANY LAW TO THE CONTRARY. THE ACT OF AUGUST 2, 1946, 60 STAT. 806, CONTAINS A RESTRICTION THAT NO EXPERT SO ENGAGED MAY BE PAID AT A RATE IN EXCESS OF THE PER DIEM EQUIVALENT OF $10,000 A YEAR OR $38.46 PER DAY. HOWEVER, IT IS SUBMITTED THAT THESE PROVISIONS DO NOT APPLY WHERE AN INDEPENDENT- CONTRACTOR RELATIONSHIP EXISTS BETWEEN AN AGENCY OF THE GOVERNMENT AND THE CONTRACTOR WITH LITTLE OR NO ACTUAL SUPERVISION BEING EXERCISED BY THE GOVERNMENT AGENCY AND WITH A STIPULATION IN THE PROPOSED CONTRACT THAT THE RATE OF COMPENSATION INCLUDES ALL OVERHEAD EXPENSES OF THE CONTRACTOR, SUCH AS OFFICE RENT, STENOGRAPHIC SERVICES AND OTHER SERVICES NOT FALLING WITHIN THE "EXPERT" CLASSIFICATION.

FOR SOME TIME, THIS ADMINISTRATION HAS BEEN CONDUCTING AS PART OF THE NORMAL OPERATIONS OF THIS ADMINISTRATION THE STANDARDS RECORDS MANAGEMENT PROGRAM COMMON TO GOVERNMENT AGENCIES, AS PRESCRIBED BY THE BUREAU OF THE BUDGET AND THE NATIONAL ARCHIVES COUNCIL, BUT IT IS DOUBTFUL THAT THE PROJECT WILL BE SATISFACTORILY COMPLETED WITHIN THE TIME TENTATIVELY ESTABLISHED FOR LIQUIDATION. THE WORK TO BE PERFORMED BY THE FLASHDEX RECORDS ENGINEERING DIVISION UNDER THEIR PROPOSAL WOULD BE OF GREAT ASSISTANCE IN CARRYING OUT OUR PROGRAM.

ACCORDINGLY, YOUR DECISION IS REQUESTED AS TO WHETHER OR NOT THIS ADMINISTRATION MAY EXPEND APPROPRIATED FUNDS FOR PAYMENTS TO THE BALLARD COMPANY UNDER ITS PROPOSAL AS OUTLINED ABOVE.

CONSIDERATION OF THE STATEMENT CONTAINED IN YOUR LETTER CONCERNING THE PRESENT PERFORMANCE BY EMPLOYEES OF THE WAR ASSETS ADMINISTRATION OF THE WORK OF RETIRING THE RECORDS OF THE ADMINISTRATION, TOGETHER WITH CERTAIN ADDITIONAL INFORMATION RELATING THERETO OBTAINED FROM ANOTHER SOURCE, HEREINAFTER REFERRED TO, CONVINCES ME THAT THE MATTER PRESENTED PROPERLY MAY BE DISPOSED OF ON THE BASIS OF THE GENERAL RULE ESTABLISHED BY THE DECISIONS OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT PURELY PERSONAL SERVICES FOR THE GOVERNMENT MAY NOT BE OBTAINED ON A CONTRACTUAL BASIS BUT ARE REQUIRED TO BE PERFORMED BY REGULAR EMPLOYEES OF THE GOVERNMENT WHO ARE RESPONSIBLE TO THE GOVERNMENT AND SUBJECT TO ITS SUPERVISION. I FIND NOTHING IN YOUR SUBMISSION WHICH SUGGEST THAT THE WORK TO BE PERFORMED UNDER THE PROPOSED CONTRACT PROPERLY COULD BE CATEGORIZED OTHER THAN AS PERSONAL SERVICES.

WHILE THERE HAVE BEEN INSTANCES WHERE, BY REASON OF THE NATURE OF THE WORK AND THE EXISTENCE OF CONDITIONS NOT PERMITTING ITS PERFORMANCE IN THE USUAL MANNER, ACCOMPLISHMENT THEREOF BY OUTSIDE CONTRACTS HAS BEEN SANCTIONED (SEE 6 COMP. GEN. 180; 11 ID. 99; 21 ID. 400, 486; 24 ID. 924), IT WILL BE OBSERVED THAT THE EXCEPTIONS TO THE ESTABLISHED RULE HAVE BEEN MADE PRIMARILY UPON THE GROUND THAT EMPLOYEES OF THE GOVERNMENT WERE NOT QUALIFIED OR AVAILABLE TO PERFORM THE WORK INVOLVED. SUCH, HOWEVER, WOULD NOT APPEAR TO BE THE SITUATION HERE. IN THAT CONNECTION, BY LETTER OF JANUARY 30, 1948, THIS OFFICE REQUESTED THE ARCHIVIST OF THE UNITED STATES TO FURNISH AN EXPRESSION OF HIS VIEWS--- BECAUSE OF THE INTIMATE RELATION OF THE WORK TO BE PERFORMED UNDER THE PROPOSED CONTRACT TO THE FUNCTIONS OF THE NATIONAL ARCHIVES--- AS TO (1) WHETHER IT IS NECESSARY TO HAVE SERVICES IN CONNECTION WITH THE RETIREMENT OF GOVERNMENT RECORDS PERFORMED BY PRIVATE ONTRACT; (2) WHETHER, UNDER THE TERMS OF THE PROPOSED CONTRACT, AS OUTLINED IN YOUR LETTER OF JANUARY 23, 1948, TO THIS OFFICE, THE SERVICES CONTEMPLATED THEREBY WOULD MEET THE REQUIREMENTS OF THE NATIONAL ARCHIVES; AND (3) WHETHER THE PERSONAL SERVICES OF REGULAR EMPLOYEES OF THE GOVERNMENT ARE ADEQUATE FOR THE TASK. THE REPLY OF THE ACTING ARCHIVIST OF THE UNITED STATES, DATED FEBRUARY 16, 1948, IS, IN RELEVANT PART, AS FOLLOWS:

AS TO THE FIRST QUESTION I SHOULD UNHESITATINGLY SAY THAT IN GENERAL (THAT IS, IN THE USUAL CASE) IT IS NOT NECESSARY TO HAVE THE RETIREMENT OF GOVERNMENT RECORDS EITHER PLANNED OR CARRIED OUT UNDER PRIVATE CONTRACT. MOST GOVERNMENT AGENCIES NOW HANDLE SUCH WORK VERY SATISFACTORILY WITH THEIR OWN PERSONNEL; SO FAR AS I KNOW, NONE HANDLES IT BY PRIVATE CONTRACT. THE DEPARTMENT OF NATIONAL DEFENSE AND DEPARTMENT OF AGRICULTURE AMONG THE PERMANENT AGENCIES HAVE BEEN EMINENTLY SUCCESSFUL IN DEVELOPING SOUND AND EFFECTIVE PROGRAMS WITH THEIR OWN PERSONNEL. AMONG THE TEMPORARY WAR AGENCIES, THE OFFICE OF PRICE ADMINISTRATION (TO MENTION ONLY ONE) CARRIED OUT AN EXCEEDINGLY COMPETENT AND ORDERLY REDUCTION OF SOME 1,500,000 CUBIC FEET OF RECORDS TO LESS THAN 10,000 CUBIC FEET, MOST OF WHICH ARE NOW IN THE NATIONAL ARCHIVES IN A SHAPE WELL SUITED TO THE CONSTANT AND VARIED REFERENCE THAT IS MADE TO THEM. WHERE AN AGENCY CAN PLAN AND CARRY OUT SUCH A PROGRAM WITH PERSONNEL RESOURCES ALREADY FAMILIAR WITH ITS RECORDS AND THEIR VALUE TO THE GOVERNMENT, IT IS AN ADVANTAGE FOR IT TO DO SO. THE AGENCY THAT CREATES THE RECORDS MUST IN ANY CASE DEVOTE CONSIDERABLE RESOURCES TO THE TASK OF INFORMING AND CURRENTLY COOPERATING WITH ANY NON-AGENCY STAFF WHICH UNDERTAKES SUCH A TASK.

AS TO THE SECOND QUESTION, IT IS IMPOSSIBLE FOR ME TO GIVE A DEFINITE ANSWER WITHOUT REFERENCE TO THE CONTRACT, SINCE MR. LARSON'S LETTER DOES NOT EXPLICITLY STATE WHAT THE BALLARD COMPANY HAS UNDERTAKEN TO DO OR TO DELIVER BEYOND "WORKING TO THE ATTAINMENT" OF CERTAIN STATED OBJECTIVES. THE NATIONAL ARCHIVES IS, OF COURSE, INTERESTED IN THE RESULTS OF A PLAN WHEN IT IS PUT INTO OPERATION, RATHER THAN IN PLANNING PROCESSES AS SUCH. BUT CONSIDERING THE VITAL RELATIONSHIP OF RECORDS TO THE OPERATIONS OF GOVERNMENT GENERALLY AND IN THE PRESENT INSTANCE THEIR ESSENTIALITY AS A SOURCE OF INFORMATION TO CONGRESS AND SUCH SUPERVISING AGENCIES AS YOUR OWN AND THE BUREAU OF THE BUDGET, I AM INCLINED TO DOUBT THE WISDOM OF ENTRUSTING TO PERSONS OUTSIDE THE GOVERNMENT ANY SIGNIFICANT PART IN THE "DETERMINATION OF THE TYPES OF RECORDS" TO BE DISPOSED OF OR RETAINED. THE NATIONAL ARCHIVES, AT LEAST, IN ITS REVIEW OF DISPOSAL SCHEDULES WILL FIND ITSELF AT A DISADVANTAGE/AS MIGHT THE COMPTROLLER GENERAL IN THE EXERCISE OF HIS POWERS UNDER PAR. 9 OF THE DISPOSAL ACT OF 1945 (59 STAT. 434) ( IF SUCH SCHEDULES COME FROM THE HANDS OF PERSONS NOT EXPERIENCED IN THE DAY BY DAY OPERATIONS OF THE WAR ASSETS ADMINISTRATION. IT IS MY OPINION THAT IN THE EVALUATION OF RECORDS INTIMATE KNOWLEDGE CONCERNING THE AGENCY AND ITS WORK IS MORE IMPORTANT THAN ANY SPECIAL TECHNIQUE OF SURVEY OR APPRAISAL. AS TO THE THIRD QUESTION, IT IS MY OPINION THAT THE REGULAR EMPLOYEES OF THE WAR ASSETS ADMINISTRATION ENGAGED IN RECORDS RETIREMENT WORK HAVE PERFORMED ADEQUATELY A NUMBER OF TASKS THAT ARE BASIC PARTS OF A SATISFACTORY RECORDS RETIREMENT PROGRAM, AND HAVE ALREADY SET SUCH A PROGRAM IN MOTION. THE RECORDS MANAGEMENT SECTION OF THE ADMINISTRATION HAS ALREADY MADE AN ADEQUATE INVENTORY OF ALL THE AGENCY'S RECORDS, BOTH IDENTIFYING AND LOCATING THE RECORDS; AND IT IS CONTINUALLY RECHECKING ITS INVENTORY IN ORDER TO KEEP IT CURRENT WITH CHANGES OF FILE LOCATION AND IN ORDER TO PREPARE DISPOSAL AND RETENTION SCHEDULES. IT HAS ALREADY CLEARED WITH THE GENERAL ACCOUNTING OFFICE AND WITH THE NATIONAL ARCHIVES, AND RECEIVED CONGRESSIONAL AUTHORIZATION FOR, THE DESTRUCTION OF ABOUT FIFTY PERCENT OF THE AGENCY'S RECORDS ( DISPOSAL JOBS NOS. 348-S19 AND 348 S20), AND HAS SEVERAL MORE SCHEDULES NEARLY READY FOR SUBMISSION. IT HAS PUBLISHED AND ISSUED TO THE FIELD A " HANDBOOK OF INSTRUCTIONS FOR THE OPERATION OF RECORDS DEPOSITORIES" ( MAY 1947), " HANDBOOK OF INSTRUCTIONS FOR THE DISPOSITION OF FIELD RECORDS" ( MAY 1947), AND A PRELIMINARY SET OF DISPOSAL STANDARDS COVERING THE RECORDS OF ALL FUNCTIONS OF THE WAR ASSETS ADMINISTRATION IN THE FIELD.

MOST OF WHAT REMAINS TO BE DONE ON THE LEVEL OF PLANNING AT HEADQUARTERS AND IN THE FIELD SHOULD BE POSSIBLE TO ACCOMPLISH BY APRIL 1 WITHOUT THE ASSIGNMENT OF ADDITIONAL AGENCY PERSONNEL. THE DISPOSAL STANDARDS ARE NOW IN PROCESS OF REVISION TO BRING THEM INTO CLOSER CONFORMITY WITH THE EXISTING ARRANGEMENT OF FILES. THIS IS SCHEDULED FOR COMPLETION BY MARCH 1. FIELD SCHEDULES TRANSLATING THE STANDARDS FOR OPERATIONAL PURPOSES IN EACH ZONE AND REGION ARE BEING DRAFTED AND ARE SCHEDULED FOR COMPLETION BY THE END OF MARCH. THE SELECTION OF RECORDS FOR RETENTION, WHICH MAY INVOLVE THE WORKING OUT OF SAMPLING SCHEMES, WILL, IT IS ESTIMATED, BE COMPLETED BY THE END OF APRIL.

IT IS MY ESTIMATE THAT THE COST OF COMPLETING PLANS AND ORGANIZING A PROGRAM THE RESULTS OF WHICH WOULD BE ACCEPTABLE TO THE NATIONAL ARCHIVES WOULD BE ABOUT $20,000, A FIGURE APPROXIMATELY PROPORTIONAL TO THAT FOR THE ANALOGOUS PHASES OF THE RECORDS RETIREMENT PROGRAM OF THE OFFICE OF PRICE ADMINISTRATION. THIS FIGURE IS BASED UPON WHAT MAY REASONABLY BE ESTIMATED TO BE THE PERSONAL-SERVICE COST OF WAR ASSETS ADMINISTRATION EMPLOYEES PRESENTLY ENGAGED IN THIS PROJECT, PLUS THE COORDINATING AND ADVISORY SERVICES OF A NATIONAL ARCHIVES STAFF MEMBER, FOR ONE QUARTER. THE NATIONAL ARCHIVES STAFF MEMBER'S SERVICES MIGHT OR MIGHT NOT BE DESIRABLE TO ARRANGE ON REIMBURSABLE BASIS.

I THINK YOU WILL AGREE THAT THE FOREGOING STATEMENT ESTABLISHES, WITHOUT QUESTION, THAT UNDER NORMAL CIRCUMSTANCES THE RETIREMENT OF GOVERNMENT RECORDS IN CONFORMITY WITH THE REQUIREMENTS OF APPLICABLE LAWS AND REGULATIONS IS A FUNCTION WHICH CAN BE PERFORMED BY GOVERNMENT AGENCIES, UTILIZING THE SERVICES OF GOVERNMENT PERSONNEL, WITHOUT THE NECESSITY OF PROCURING OUTSIDE ASSISTANCE BY PRIVATE CONTRACT, AND THAT, SO FAR AS CONCERNS THE SERVICES CONTEMPLATED BY THE AGREEMENT HERE INVOLVED, THE REGULAR EMPLOYEES OF YOUR ADMINISTRATION ARE QUALIFIED AND AVAILABLE TO CARRY OUT THE TASK UPON WHICH, YOUR LETTER STATES, THEY ARE CURRENTLY ENGAGED. IN THE FACE OF THIS DEMONSTRATED FACT, THE PROCUREMENT OF SUCH SERVICES BY PRIVATE CONTRACT, AS PROPOSED CLEARLY WOULD BE IN CONTRAVENTION OF THE RULE HEREINABOVE DISCUSSED.

YOUR LETTER REFERS TO THE FACT THAT UNDER THE CURRENT APPROPRIATION OF THE WAR ASSETS ADMINISTRATION YOUR AGENCY MAY PROCURE SERVICES AS AUTHORIZED BY SECTION 15 OF THE ACT OF AUGUST 2, 1946, PUBLIC LAW 600, 60 STAT. 810. THE SAID SECTION 15 PROVIDES THAT THE HEAD OF ANY DEPARTMENT, WHEN AUTHORIZED IN AN APPROPRIATION OR OTHER ACT, MAY PROCURE THE TEMPORARY OR INTERMITTENT SERVICES OF EXPERTS OR ORGANIZATION THEREOF BY CONTRACT, WITHOUT REGARD TO THE CIVIL-SERVICE AND CLASSIFICATION LAWS. HOWEVER, THERE IS NOTHING IN THE TERMS OF SAID LAW OR ITS LEGISLATIVE HISTORY WHICH MAY BE CONSTRUED AS NULLIFYING THE FORCE AND EFFECT OF THE CITED RULE AGAINST THE PROCUREMENT OF PERSONAL SERVICES BY CONTRACT, AND IT IS BELIEVED THAT THE GENERAL PROVISIONS OF SAID SECTION 15 HAVE A BROAD FIELD OF REASONABLE OPERATION ASIDE FROM THE RESTRICTIONS OF THE CITED RULE. THE AUTHORITY GRANTED BY SECTION 15 IS NOT A NOVEL ONE; IT IS, IN EFFECT, BUT A RESTATEMENT OF SIMILAR AUTHORITY WHICH HAS BEEN GRANTED IN APPROPRIATION ACTS IN THE CASE OF VARIOUS DEPARTMENTS AND AGENCIES OF THE GOVERNMENT FOR SEVERAL YEARS. BUT, THE AUTHORITY TO HIRE EXPERTS HAS NEVER BEEN REGARDED AS PERMITTIING THE PROCUREMENT BY PRIVATE CONTRACT OF SERVICES WHICH CAN BE PERFORMED BY REGULAR EMPLOYEES OF THE GOVERNMENT. WHILE THE TERM "EXPERT," AS USED IN LEGISLATION GENERALLY AND IN SECTION 15 OF PUBLIC LAW 600, SUPRA, MAY NOT BE SUSCEPTIBLE OF A PRECISE DEFINITION, IT MUST BE REGARDED AS INCLUDING ONLY THOSE EXCEPTIONALLY QUALIFIED BY EDUCATION AND EXPERIENCE IN A PARTICULAR LINE TO PERFORM SOME SPECIAL SERVICE--- AND WHO ARE NOT, GENERALLY, OBTAINABLE UNDER OPERATION OF THE CIVIL-SERVICE LAWS AND REGULATIONS. 14 COMP. GEN. 70, 71. MOREOVER, IT WOULD SEEM NECESSARY THAT, IN ORDER TO JUSTIFY THE EMPLOYMENT OF EXPERTS, THERE SHOULD BE A CONCURRENCE OF TWO FACTORS: FIRST, THAT THE SERVICES SOUGHT TO BE PROCURED CAN BE SATISFACTORILY PERFORMED ONLY BY EXPERTS AND, SECOND, THAT THE PERSONS EMPLOYED ARE EXPERTS. CF. 16 COMP. GEN. 703. ASSUMING THAT THE WALTER M. BALLARD COMPANY IS PREPARED TO FURNISH SERVICES OF A SPECIALIZED TYPE AND IS EXPERT IN ITS PARTICULAR FIELD, YET, THE FACT THAT THE REGULAR EMPLOYEES OF YOUR ADMINISTRATION ARE PERFORMING THE TASK AND, AS DELINEATED IN THE ABOVE-QUOTED LETTER OF THE ACTING ARCHIVIST OF THE UNITED STATES, THE SAME IS BEING, AND CAN BE, EFFICIENTLY AND ADEQUATELY ACCOMPLISHED BY SAID EMPLOYEES, IT WOULD SEEM ABUNDANTLY CLEAR THAT THE SERVICES OF EXPERTS ARE NOT REQUIRED.

FURTHERMORE, THERE IS THE QUESTION AS TO THE APPLICATION OF SECTION 5 OF THE ACT OF APRIL 6, 1914, 38 STAT. 335, 5 U.S.C. 55, GENERALLY PROHIBITING THE USE OF APPROPRIATED FUNDS TO PAY THE COMPENSATION OR EXPENSES OF ACCOUNTANTS OR OTHER EXPERTS INAUGURATING NEW OR CHANGING OLD METHODS OF TRANSACTING THE BUSINESS OF THE UNITED STATES. A COPY OF THE PROPOSED CONTRACT WAS NOT FURNISHED WITH YOUR LETTER AND ITS PRECISE TERMS ARE NOT KNOWN. HOWEVER, THE SERVICES WHICH THE CONTRACTOR IS PROPOSING TO PERFORM ARE STATED AS WORKING TO THE ATTAINMENT, AMONG OTHER THINGS, OF IMPROVING METHODS AND PROCEDURES, ELIMINATION OF DUPLICATION, AND BRINGING BETTER HOUSEKEEPING. IF THAT BE A FACT IT SEEMS CLEAR TO ME THAT SUCH OBJECTIVES DEFINITELY RELATE TO THE INAUGURATION OF NEW METHODS OR THE CHANGING OF OLD METHODS OF TRANSACTING THE GOVERNMENT'S BUSINESS AND, AS SUCH, ARE WITHIN THE MEANING OF THE SAID ACT.

IN VIEW OF THE FOREGOING, I AM CONSTRAINED TO CONCLUDE THAT THE EXPENDITURE OF APPROPRIATED FUNDS UNDER A CONTRACT SUCH AS PROPOSED IN YOUR LETTER IS NOT AUTHORIZED.