B-85959, MAY 20, 1949, 28 COMP. GEN. 670

B-85959: May 20, 1949

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WHERE TEMPORARY EXPERT OR CONSULTANT SERVICES ARE OBTAINED BY CONTRACT PURSUANT TO THE AUTHORITY IN SECTION 15 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2. THERE IS NO AUTHORITY TO ENTER INTO AN EMPLOYMENT AGREEMENT UNDER THAT SECTION FOR PERIODS EXTENDING BEYOND ONE YEAR. " AN EMPLOYEE HIRED FOR ONE EXPERT POSITION UNDER A SERIES OF CONTRACTS TOTALING LESS THAN ONE YEAR MAY BE REHIRED IMMEDIATELY IN A DIFFERENT EXPERT POSITION FOR A PERIOD WHICH WILL MAKE HIS AGGREGATE EMPLOYMENT PERIOD EXCEED ONE YEAR. PROVIDING THAT THE DIFFERENT EXPERT POSITION IS NOT ONE PREVIOUSLY FILLED BY SOME OTHER EXPERT FOR AS MUCH AS ONE YEAR. 1949: I HAVE YOUR LETTER OF MAY 2. WHEN THE FURTHER SERVICES OF CERTAIN EXPERTS OR CONSULTANTS ARE DESIRED.

B-85959, MAY 20, 1949, 28 COMP. GEN. 670

EXPERTS AND CONSULTANTS EMPLOYED FOR TEMPORARY PERIODS NOT IN EXCESS OF ONE YEAR UNDER SECTION 15 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, PROVIDING FOR THE PROCUREMENT OF EXPERT OR CONSULTANT SERVICES BY CONTRACT FOR TEMPORARY PERIODS "NOT IN EXCESS OF ONE YEAR," THE SERVICES OF EXPERTS OR CONSULTANTS MAY NOT BE SECURED UNDER A SUCCESSION OF SHORT-TERM CONTRACTS FOR FULL OR PART TIME SERVICE WHERE THE RESULTING CONTINUOUS EMPLOYMENT WOULD BE IN EXCESS OF ONE YEAR. WHERE TEMPORARY EXPERT OR CONSULTANT SERVICES ARE OBTAINED BY CONTRACT PURSUANT TO THE AUTHORITY IN SECTION 15 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, AND THE NEED FOR THE SAME SERVICE EXTENDS BEYOND THE ONE-YEAR EMPLOYMENT LIMITATION PRESCRIBED BY SAID SECTION, THERE IS NO AUTHORITY TO ENTER INTO AN EMPLOYMENT AGREEMENT UNDER THAT SECTION FOR PERIODS EXTENDING BEYOND ONE YEAR, REGARDLESS OF ANY PERIOD OF BREAK BETWEEN THE EMPLOYMENT AGREEMENTS. UNDER THE AUTHORITY IN SECTION 15 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, TO PROCURE EXPERT OR CONSULTANT SERVICES BY CONTRACT FOR TEMPORARY PERIODS "NOT IN EXCESS OF ONE AR," AN EMPLOYEE HIRED FOR ONE EXPERT POSITION UNDER A SERIES OF CONTRACTS TOTALING LESS THAN ONE YEAR MAY BE REHIRED IMMEDIATELY IN A DIFFERENT EXPERT POSITION FOR A PERIOD WHICH WILL MAKE HIS AGGREGATE EMPLOYMENT PERIOD EXCEED ONE YEAR, PROVIDING THAT THE DIFFERENT EXPERT POSITION IS NOT ONE PREVIOUSLY FILLED BY SOME OTHER EXPERT FOR AS MUCH AS ONE YEAR.

COMPTROLLER GENERAL WARREN TO THE ACTING CHAIRMAN, NATIONAL SECURITY RESOURCES BOARD, MAY 20, 1949:

I HAVE YOUR LETTER OF MAY 2, 1949, IN WHICH YOU PRESENT SEVERAL QUESTIONS CONCERNING THE AUTHORITY OF THE NATIONAL SECURITY RESOURCES BOARD TO PROCURE, PURSUANT TO THE PROVISIONS OF ITS APPROPRIATION ACTS, THE SERVICES OF EXPERTS AND CONSULTANTS AS AUTHORIZED BY SECTION 15 OF THE ACT OF AUGUST 2, 1946, PUBLIC LAW 600, 60 STAT. 810. THAT SECTION AUTHORIZES, INTER ALIA, THE HEAD OF ANY DEPARTMENT, UNDER CERTAIN CIRCUMSTANCES, TO "PROCURE THE TEMPORARY (NOT IN EXCESS OF ONE YEAR) OR INTERMITTENT SERVICES OF EXPERTS OR CONSULTANTS * * * BY CONTRACT * * * WITHOUT REGARD TO THE CIVIL-SERVICE AND CLASSIFICATION LAW.'

YOUR LETTER STATES THAT IT HAS BEEN THE POLICY OF THE NATIONAL SECURITY RESOURCES BOARD TO WRITE ALL CONTRACTS FOR EXPERTS OR CONSULTANTS FOR PERIODS NOT IN EXCESS OF 90 DAYS AND THAT, WHEN THE FURTHER SERVICES OF CERTAIN EXPERTS OR CONSULTANTS ARE DESIRED, NEW CONTRACTS ARE EXECUTED FOR ADDITIONAL PERIODS OF 90 DAYS OR LESS. IT IS STATED FURTHER THAT, IN THE CASE OF FOUR EMPLOYEES WHO HAVE SERVED UNDER A SUCCESSION OF SUCH CONTRACTS, THEIR CONTINUED EMPLOYMENT WILL RESULT IN AGGREGATE SERVICES IN EXCESS OF ONE YEAR. APPARENTLY WITH REFERENCE TO THOSE SPECIFIC CASES, YOU PRESENT THE FOLLOWING QUESTIONS:

1. IS A SUCCESSION OF SHORT-TERM CONTRACTS, FOR FULL-TIME SERVICE, RESULTING IN CONTINUOUS EMPLOYMENT EXCEEDING ONE YEAR, AUTHORIZED BY SECTION 15 OF PLUS/600??

2. IS EMPLOYMENT IN EXCESS OF ONE YEAR UNDER A SERIES OF CONTRACTS FOR PART-TIME SERVICES SO AUTHORIZED?

IF THE ANSWER TO QUESTION 1, ABOVE, IS IN THE NEGATIVE, THE FOLLOWING QUESTIONS BECOME IMPORTANT:

3. HOW LONG A PERIOD IS NECESSARY BETWEEN CONTRACTS TO BREAK THE CONTINUITY OF SERVICE SO THAT A NEW LIMIT OF ONE YEAR WOULD APPLY?

4. MAY AN EMPLOYEE HIRED FOR ONE EXPERT POSITION UNDER A SERIES OF CONTRACTS TOTALING LESS THAN A YEAR, BE IMMEDIATELY REHIRED FOR A DIFFERENT EXPERT POSITION FOR WHICH HE IS QUALIFIED FOR A PERIOD WHICH WILL MAKE HIS AGGREGATE EMPLOYMENT EXCEED ONE YEAR?

THE PURPOSE OF SECTION 15 OF PUBLIC LAW 600, SUPRA, IS TO EXEMPT FROM THE PROVISIONS OF THE CIVIL-SERVICE AND CLASSIFICATION LAWS SUCH EXPERT OR CONSULTANT SERVICES AS MAY BE REQUIRED INTERMITTENTLY OR, IF NOT REQUIRED INTERMITTENTLY, AS WILL BE UTILIZED ONLY FOR A TEMPORARY PERIOD. THAT TEMPORARY PERIOD IS FIXED BY THE SECTION AS BEING "NOT IN EXCESS OF ONE YEAR.' NO EXCEPTIONS TO THE ONE-YEAR LIMIT ARE PROVIDED, AND NO DISTINCTION IS MADE BETWEEN FULL TIME AND PART TIME TEMPORARY SERVICE. ACCORDINGLY, QUESTIONS 1 AND 2 ARE ANSWERED IN THE NEGATIVE.

WITH REFERENCE TO QUESTION 3, IT MAY BE STATED THAT, IF TEMPORARY EXPERT OR CONSULTANT SERVICES ARE OBTAINED PURSUANT TO AUTHORITY CONTAINED IN SECTION 15 OF PUBLIC LAW 600, SUPRA, AND THE NEED FOR THE SAME SERVICE EXTENDS BEYOND THE ONE-YEAR LIMITATION, THERE IS NO AUTHORITY TO ENTER INTO AN EMPLOYMENT AGREEMENT UNDER THE SAID SECTION 15 FOR SERVICES COVERING THE PERIOD EXTENDING BEYOND ONE YEAR. THIS WOULD BE SO REGARDLESS OF ANY PERIOD OF BREAK BETWEEN THE CONTRACTS. IN THAT CONNECTION, THERE WOULD APPEAR TO BE FOR ADMINISTRATIVE CONSIDERATION THE CLASSIFYING OF THE POSITION IN WHICH SAID SERVICE IS BEING PERFORMED AND THE FILLING THEREOF IN ACCORDANCE WITH CIVIL SERVICE LAWS AND REGULATIONS.

QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE PROVIDING, OF COURSE, THAT THE DIFFERENT EXPERT POSITION IS NOT A POSITION THAT PREVIOUSLY HAD BEEN FILLED BY SOME OTHER EXPERT OR EXPERTS FOR SO MUCH AS A YEAR. IN NO CASE MAY AN EXPERT OR CONSULTANT POSITION BE FILLED BY ONE OR MORE PERSONS FOR MORE THAN ONE YEAR UNDER AUTHORITY CONTAINED IN THE SAID SECTION 15 OF PUBLIC LAW 600.