B-76060, MAY 17, 1948, 27 COMP. GEN. 695

B-76060: May 17, 1948

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PROVIDED THE RATES OF COMPENSATION ARE WITHIN THE EXISTING PER DIEM APPROPRIATION LIMITATION. IN CONNECTION WITH THE NECESSARY TRAVEL OF EXPERTS OR CONSULTANTS WHO ARE EMPLOYED. 1948: REFERENCE IS MADE TO YOUR LETTER OF APRIL 28. IT APPEARS THAT SUCH PROVISION TOOK THE PLACE OF A PROVISION APPEARING IN SIMILAR APPROPRIATION ACTS IN PRIOR YEARS WHICH PROVIDED FOR "FEES FOR PROFESSIONAL OR EXPERT SERVICES AT RATES AND IN AMOUNTS TO BE DETERMINED BY THE SECRETARY OF STATE" AND THAT MANY APPOINTMENTS OF CONSULTANTS STILL ARE IN EFFECT WHICH WERE FIXED BY THE SECRETARY OF STATE PURSUANT TO THE AUTHORITY CONTAINED IN THOSE ACTS. DURING THE CURRENT FISCAL YEAR THE EMPLOYMENT OF EXPERTS FOR APPRAISAL WORK IN CONNECTION WITH TREATY ACTIVITIES OF YOUR SECTION HAVE BEEN OBTAINED BY WRITTEN CONTRACT AT RATES OF PAY ARRIVED AT BY NEGOTIATION WITH THE INDIVIDUALS CONCERNED AND IN LINE WITH THE PREVAILING RATES FOR THE PARTICULAR SERVICES.

B-76060, MAY 17, 1948, 27 COMP. GEN. 695

EXPERTS AND CONSULTANTS EMPLOYED UNDER SECTION 15 OF THE ACT OF AUGUST 2, 1946 THE CONTINUED ACCEPTANCE BY THE INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES AND MEXICO, OF THE INTERMITTENT SERVICES OF EXPERTS AND CONSULTANTS APPOINTED UNDER THE AUTHORITY IN PRIOR APPROPRIATION ACTS MAY BE VIEWED AS GIVING RISE TO IMPLIED CONTRACTS EMBODYING THE PREVIOUS RATES OF COMPENSATION AND, AS SUCH, WITHOUT THE EXECUTION OF NEW OR DIFFERENT CONTRACTS, COMES WITHIN THE PURVIEW OF SECTION 15 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, AUTHORIZING THE PROCUREMENT OF SUCH INTERMITTENT SERVICES BY CONTRACT, PROVIDED THE RATES OF COMPENSATION ARE WITHIN THE EXISTING PER DIEM APPROPRIATION LIMITATION. THE AUTHORITY VESTED IN THE SECRETARY OF STATE BY PRIOR APPROPRIATION ACTS TO FIX THE RATES OF COMPENSATION FOR EXPERTS OR CONSULTANTS EMPLOYED BY THE INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES AND MEXICO, EXTENDED ONLY TO THE PERIOD COVERED BY EACH OF THE APPROPRIATION ACTS WHICH GAVE THAT AUTHORITY, SO THAT THE DAILY RATES NOW ADMINISTRATIVELY PRESCRIBED MUST IN ACCORDANCE WITH THE AUTHORITY IN THE CURRENT APPROPRIATION ACT FOR THE PROCUREMENT OF PERSONAL SERVICES PURSUANT TO SECTION 15 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, AT RATES NOT IN EXCESS OF $100 PER DIEM. IN CONNECTION WITH THE NECESSARY TRAVEL OF EXPERTS OR CONSULTANTS WHO ARE EMPLOYED, EITHER TEMPORARILY OR INTERMITTENTLY, UNDER THE PROVISIONS OF SECTION 15 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, GOVERNMENT REQUESTS FOR TRANSPORTATION SHOULD BE USED, AND PER DIEM IN LIEU OF SUBSISTENCE MAY BE PAID, IN ADDITION TO THE CONTRACTUAL DAILY RATE OF PAY, AS PRESCRIBED BY THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AND THE SUBSISTENCE EXPENSE ACT OF 1926, AS AMENDED. THE PERFORMANCE OF PERSONAL SERVICES PROCURED UNDER CONTRACT IN ACCORDANCE WITH THE AUTHORITY IN SECTION 15 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, AS DISTINGUISHED FROM NON-PERSONAL SERVICES WHICH ALSO MAY BE PROCURED UNDER AUTHORITY OF THE SAID SECTION, RESULTS IN AN EMPLOYER-EMPLOYEE RELATIONSHIP BETWEEN THE UNITED STATES AND THE PERSON PERFORMING SUCH PERSONAL SERVICES, AND, CONSEQUENTLY, PAYMENT THEREFOR SHOULD BE MADE ON THE REGULAR PAY ROLL FORMS WITH INCOME TAX DEDUCTIONS MADE IN THE USUAL MANNER.

COMPTROLLER GENERAL WARREN TO THE COMMISSIONER, UNITED STATES SECTION, INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES AND MEXICO, MAY 17, 1948:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 28, 1948, AS SUPPLEMENTED BY YOUR LETTER OF APRIL 30, IN WHICH YOU PRESENT SEVEN QUESTIONS ARISING OUT OF THAT PROVISION IN THE DEPARTMENT OF STATE, JUSTICE, AND COMMERCE, AND THE JUDICIARY APPROPRIATION ACT, 1948, 61 STAT. 284, APPLICABLE TO THE INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES AND MEXICO, WHICH PROVIDES FOR "SERVICES IN ACCORDANCE WITH SECTION 15 OF THE ACT OF AUGUST 2, 1946, PUBLIC LAW 600, AT RATES FOR INDIVIDUALS NOT IN EXCESS OF $100 PER DIEM.' IT APPEARS THAT SUCH PROVISION TOOK THE PLACE OF A PROVISION APPEARING IN SIMILAR APPROPRIATION ACTS IN PRIOR YEARS WHICH PROVIDED FOR "FEES FOR PROFESSIONAL OR EXPERT SERVICES AT RATES AND IN AMOUNTS TO BE DETERMINED BY THE SECRETARY OF STATE" AND THAT MANY APPOINTMENTS OF CONSULTANTS STILL ARE IN EFFECT WHICH WERE FIXED BY THE SECRETARY OF STATE PURSUANT TO THE AUTHORITY CONTAINED IN THOSE ACTS. DURING THE CURRENT FISCAL YEAR THE EMPLOYMENT OF EXPERTS FOR APPRAISAL WORK IN CONNECTION WITH TREATY ACTIVITIES OF YOUR SECTION HAVE BEEN OBTAINED BY WRITTEN CONTRACT AT RATES OF PAY ARRIVED AT BY NEGOTIATION WITH THE INDIVIDUALS CONCERNED AND IN LINE WITH THE PREVAILING RATES FOR THE PARTICULAR SERVICES.

THE QUESTIONS WHICH ARISE OUT OF THE ABOVE SITUATION WILL BE STATES AND ANSWERED IN THE ORDER PRESENTED.

(1) AS TO EXPERTS AND CONSULTANTS ALREADY HOLDING AN APPOINTMENT WITH THIS SECTION UNDER THE AUTHORITIES ABOVE MENTIONED, SHOULD THEIR EMPLOYMENT NOW BE EVIDENCED BY A WRITTEN CONTRACT IN CONFORMITY WITH THE PROVISIONS OF SECTION 15 OF PUBLIC LAW 600?

AFTER QUOTING SECTION 15, PUBLIC LAW 600, 60 STAT. 810, IT WAS STATED IN DECISION OF JULY 31, 1947, B-66617, 27 COMP. GEN. 46, 48---

I FIND NOTHING IN THAT SECTION, OR IN ITS LEGISLATIVE HISTORY, WHICH WOULD WARRANT A CONCLUSION THAT THE WORDS "BY CONTRACT" APPEARING IN THAT SECTION ARE USED IN ANY RESTRICTED OR LIMITED SENSE. IT SEEMS MORE REASONABLE TO CONCLUDE THAT THOSE WORDS WHEN USED IN CONNECTION WITH THE AUTHORITY TO PROCURE SERVICES "WITHOUT REGARD TO THE CIVIL-SERVICE AND CLASSIFICATION LAWS" ARE USED IN THE SENSE OF AN EMPLOYMENT AGREEMENT WITHOUT INTENDING TO DISTINGUISH BETWEEN AN EMPLOYMENT AGREEMENT IN THE FORM OF AN APPOINTMENT AND AN EMPLOYMENT AGREEMENT IN THE FORM OF A FORMAL CONTRACT.

IN LINE WITH THAT VIEW THERE APPEARS TO BE NO REASON FOR REQUIRING THAT THE INTERMITTENT EMPLOYMENT OF THOSE EXPERTS OR CONSULTANTS APPOINTED UNDER AUTHORITY CONTAINED IN PRIOR APPROPRIATION LAWS NOW MUST BE EVIDENCED BY A NEW OR DIFFERENT CONTRACT OR AGREEMENT, PROVIDING, OF COURSE, THAT THE EXISTING APPOINTMENT PROVIDES FOR COMPENSATION AT A RATE WITHIN THE EXISTING PER DIEM LIMITATION. WHILE, TECHNICALLY, SUCH APPOINTMENTS MAY BE SAID TO HAVE EXPIRED ON JUNE 30, 1947, THE CONTINUED ACCEPTANCE BY YOUR COMMISSION OF THEIR SERVICES BEYOND THAT DATE PROPERLY MAY BE VIEWED AS YOUR HAVING ADOPTED THEIR RATE OF COMPENSATION AS YOUR OWN UNDER THE CURRENT APPROPRIATION ACT AND AS GIVING RISE TO AN IMPLIED CONTRACT UPON THAT BASIS, THUS BRINGING THE MATTER WITHIN THE FRAMEWORK OF SECTION 15 OF PUBLIC LAW 600, AND THE CURRENT APPROPRIATION ACT.

(2) AS TO SUCH EXPERTS AND CONSULTANTS, MUST THEIR NEW DAILY RATE OF PAY BE FIXED AS HERETOFORE BY THE SECRETARY OF STATE UNDER THE PROVISIONS OF EARLIER APPROPRIATION ACTS, OR CAN IT BE FIXED BY CONTRACT UNDER THE PROVISIONS OF SECTION 15 OF PUBLIC LAW 600?

THE AUTHORITY PREVIOUSLY PLACED IN THE SECRETARY OF STATE TO FIX RATES FOR THE EMPLOYMENT OF EXPERTS OR CONSULTANTS EXTENDED ONLY TO THE PERIOD COVERED BY EACH OF THE APPROPRIATION ACTS WHICH GAVE THAT AUTHORITY. HENCE, ANY DAILY RATES NOW PRESCRIBED FOR THE EMPLOYMENT OF EXPERTS OR CONSULTANTS MUST BE IN ACCORDANCE WITH THE AUTHORITY CONTAINED IN THE CURRENT APPROPRIATION ACT AND SECTION 15 OF PUBLIC LAW 600.

(3) IT IS PERMISSIBLE, IN CONNECTION WITH THE EMPLOYMENT OF EXPERT SERVICES UNDER THE PROVISIONS OF SECTION 15 OF PUBLIC LAW 600, TO AUTHORIZE THE NECESSARY TRAVEL OF SUCH EXPERTS AND CONSULTANTS ON GOVERNMENT REQUESTS FOR TRANSPORTATION IN ACCORDANCE WITH STANDARDIZED GOVERNMENT TRAVEL REGULATIONS?

(4) AS TO ANY SUCH EXPERTS OR CONSULTANTS, WHETHER NOW EMPLOYED OR WHO MAY BE IN THE FUTURE EMPLOYED UNDER THE PROVISIONS OF SECTION 15 OF PUBLIC LAW 600, IS IT PERMISSIBLE, IN ADDITION TO THE DAILY RATE OF PAY PROVIDED FOR BY CONTRACTS UNDER SUCH LAW, TO PAY PER DIEM IN LIEU OF SUBSISTENCE EXPENSES WHEN SUCH EXPERTS OR CONSULTANTS ARE ENGAGED IN NECESSARY TRAVEL FOR THE GOVERNMENT?

EXPERTS OR CONSULTANTS WHO ARE EMPLOYED TEMPORARILY (NOT IN EXCESS OF ONE YEAR) IN ACCORDANCE WITH THE PROVISIONS OF SECTION 15 OF PUBLIC LAW 600, GENERALLY ARE IN THE SAME STATUS SO FAR AS THE INCURRING AND PAYMENT OF TRANSPORTATION EXPENSES ARE CONCERNED AS OTHER CIVILIAN EMPLOYEES OF THE GOVERNMENT, I.E., PROPERLY AUTHORIZED EXPENSES OF TRAVEL INCLUDING A PER DIEM IN LIEU OF SUBSISTENCE ARE PAYABLE OR REIMBURSABLE BY THE GOVERNMENT IN ACCORDANCE WITH THE SUBSISTENCE EXPENSE ACT AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

AS TO EXPERTS OR CONSULTANTS EMPLOYED INTERMITTENTLY AND RECEIVING COMPENSATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS, THERE ARE FOR CONSIDERATION THE PROVISIONS OF SECTION 5 OF PUBLIC LAW 600, 60 STAT. 808, READING IN PERTINENT PART, AS FOLLOWS:

PERSONS IN THE GOVERNMENT SERVICE EMPLOYED INTERMITTENTLY AS CONSULTANTS OR EXPERTS AND RECEIVING COMPENSATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS MAY BE ALLOWED TRAVEL EXPENSES WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, INCLUDING PER DIEM IN LIEU OF SUBSISTENCE WHILE AT PLACE OF SUCH EMPLOYMENT, IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, SUBSISTENCE EXPENSE ACT OF 1926, AS AMENDED (5 U.S.C. 821-833), AND THE ACT OF FEBRUARY 14, 1931, AS AMENDED * * *.

THAT SECTION WAS CONSIDERED IN DECISION OF APRIL 20, 1948, B-74997, 27 COMP. GEN. 651, WHICH HELD, QUOTING FROM THE SYLLABUS:

ALL CONSULTANTS OR EXPERTS EMPLOYED UNDER SECTION 15 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, FOR "INTERMITTENT"-- AS DISTINGUISHED FROM "TEMPORARY"--- SERVICES MAY BE REGARDED AS PERSONS "EMPLOYED INTERMITTENTLY" WITHIN THE MEANING OF SECTION 5 OF SAID ACT, SO AS TO BE ENTITLED TO THE TRAVELING EXPENSES AUTHORIZED THEREIN FOR EXPERTS OR CONSULTANTS EMPLOYED INTERMITTENTLY ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS. 23 COMP. GEN. 245, DISTINGUISHED. SEE, ALSO, 26 COMP. GEN. 564.

PARAGRAPH 20 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS ALSO IS FOR APPLICATION TO ALL PERSONS WHOSE SERVICES ARE PROCURED IN ACCORDANCE WITH SECTION 15 OF PUBLIC LAW 600. THAT PARAGRAPH OF THE TRAVEL REGULATIONS PROVIDES:

USED FOR ALL OFFICIAL TRAVEL.--- TRANSPORTATION REQUESTS SHOULD BE USED, WHEN PRACTICABLE, TO OBTAIN ALL OFFICIAL TRANSPORTATION WHERE THE AMOUNT INVOLVED IS $1 OR MORE, BUT SHOULD NOT BE ISSUED TO COMPANIES OTHER THAN TRANSPORTATION LINES COMMONLY RECOGNIZED AS SUCH. TRANSPORTATION REQUESTS MUST NOT BE USED FOR PERSONAL TRAVEL.

IN VIEW OF THE FOREGOING, QUESTIONS (3) AND (4) ARE ANSWERED GENERALLY IN THE AFFIRMATIVE.

(5) IS THE ENCLOSED FORM OF CONTRACT (MODIFIED, OF COURSE, TO FIT THE PARTICULAR SERVICE) SATISFACTORY COMPLIANCE WITH SECTION 15 OF PUBLIC LAW 600?

THE FORM AND CONTEXT OF A CONTRACT FOR PERSONAL SERVICES PRIMARILY ARE A MATTER FOR ADMINISTRATIVE CONSIDERATION. HOWEVER, AN EXAMINATION OF THE FORM OF CONTRACT WHICH YOU ENCLOSED FAILS TO REVEAL ANY PROVISIONS TO WHICH THIS OFFICE WOULD BE REQUIRED TO OBJECT AT THIS TIME. OF COURSE, IN RESPECT OF PARAGRAPH 4 OF THE PROPOSED CONTRACT FORM, IN NO EVENT MAY THE DAILY RATE EXCEED $100 EVEN THOUGH MORE THAN 8 HOURS' WORK MAY BE PERFORMED ON ANY ONE DAY. IT IS DESIRED TO POINT OUT, TOO, THAT THE CONTRACT FORM IS SILENT AS TO WHAT COMPENSATION, IF ANY, MAY BE PAYABLE IN THE EVENT OF ANY SERVICES PERFORMED AS OVERTIME.

(6) SHOULD PERSONS RENDERING SERVICES UNDER CONTRACT IN ACCORDANCE WITH SECTION 15 OF PUBLIC LAW 600 BE CONSIDERED EMPLOYEES OF THIS SECTION AND, AS SUCH, PAID ON REGULAR PAY ROLL FORMS, WITH INCOME TAX DEDUCTIONS FROM THE AMOUNT, OTHERWISE DUE UNDER SUCH CONTRACTS? THE ALTERNATIVE TO THIS QUESTION, OF COURSE, IS THAT THE PERSON RENDERING SUCH SERVICES UNDER SUCH CONTRACT IS NOT TO BE CLASSED AS AN EMPLOYEE OF THE UNITED STATES SECTION BUT IS TO BE CLASSED RATHER AS A CONTRACTOR, SO THAT PAYMENTS MAY BE MADE OF THE FEES STIPULATED WITHOUT DEDUCTION FOR INCOME TAX PURPOSES.

WHERE THE SERVICES TO BE PERFORMED UNDER CONTRACT ARE PURELY PERSONAL IN NATURE, AS DISTINGUISHED FROM NON-PERSONAL SERVICES WHICH ALSO MAY BE PROCURED UNDER AUTHORITY CONTAINED IN SECTION 15 OF PUBLIC LAW 600 (SEE 26 COMP. GEN. 188, ID. 442), IT WOULD APPEAR THAT ANY AMOUNT PAYABLE ON ACCOUNT OF THE PERFORMANCE OF SUCH SERVICES IS PAYABLE AS THE RESULT OF AN EMPLOYER-EMPLOYEE RELATIONSHIP EXISTING BETWEEN THE UNITED STATES AND THE PERSON PERFORMING THE SERVICE AND THAT THEREFORE PAYMENT SHOULD BE MADE ON THE REGULAR PAY ROLL FORMS WITH INCOME TAX DEDUCTIONS MADE IN THE USUAL MANNER. SEE 24 COMP. GEN. 104, PARTICULARLY QUESTION AND ANSWER NO. 6.

(7) WOULD PERSONS RENDERING SUCH SERVICES UNDER SUCH CONTRACTS COME WITHIN THE PURVIEW OF 5 U.S.C. SEC. 947 SO AS TO REQUIRE THAT THEY BE INCLUDED WITHIN PERSONNEL CEILINGS AS DETERMINED BY THE DIRECTOR OF THE BUREAU OF THE BUDGET?

QUESTIONS RELATING TO PERSONNEL CEILINGS ESTABLISHED IN ACCORDANCE WITH SECTION 607 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 304, AS AMENDED, 5 U.S.C. 947, PRIMARILY APPEAR TO BE FOR DETERMINATION BY THE DIRECTOR OF THE BUREAU OF THE BUDGET, WHO IS CHARGED WITH VARIOUS DUTIES UNDER THAT SECTION. HOWEVER, THERE IS FOR NOTING THAT THE ONLY SPECIFIC EXEMPTION CONTAINED IN THE SECTION IS THAT IN SUBSECTION (E), 59 STAT. 305, WHICH PROVIDES:

CASUAL EMPLOYEES, AS DEFINED BY THE CIVIL SERVICE COMMISSION, AND EMPLOYEES HIRED WITHOUT COMPENSATION MAY BE EXCLUDED FROM THE DETERMINATIONS AND REPORTS REQUIRED BY THIS SECTION.