[Request for Reconsideration of Protest of Navy Contracting Practices]
Highlights
A firm requested reconsideration of its dismissed protest against Navy contracting practices. GAO had held that the protester's protest was not in its jurisdiction, since it did not involve the Navy's contracting practices for a particular solicitation or award. In its request for reconsideration, the protester contended that GAO: (1) based its decision on an error in law; and (2) previously exercised jurisdiction over a small-purchase contracting procedures protest that did not involve a particular solicitation or award. GAO held that it would not consider the protester's protest, since: (1) it only reviews agency procurement practices related to the propriety of specific awards; (2) its authority does not extend to general protests of agency contracting practices; and (3) the protester did not refer to any specific improper awards. Accordingly, the dismissal was affirmed.
A-46087, DECEMBER 15, 1932, 12 COMP. GEN. 466
ECONOMY ACT - PROMOTIONS - TEMPORARY OR SEASONAL POSITIONS THE FACT THAT A HIGHER POSITION MAY BE A TEMPORARY OR SEASONAL ONE, EXCEPTING IT FROM THE PROVISIONS OF SECTION 203 OF THE ECONOMY ACT, DOES NOT REMOVE IT FROM THE RESTRICTIONS OF SECTION 202, AND VACANT POSITIONS OF A SEASONAL OR TEMPORARY NATURE ACCORDINGLY MAY NOT BE FILLED BY PROMOTION OF EMPLOYEES FROM LOWER GRADES WITHOUT THE EXPRESS APPROVAL OF THE PRESIDENT OF THE UNITED STATES.
COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, DECEMBER 15, 1932:
THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 1, 1932, AS FOLLOWS:
UNDER DATE OF OCTOBER 31, 1932, THIS DEPARTMENT SUBMITTED TO THE UNITED STATES CIVIL SERVICE COMMISSION A REQUEST FOR CERTIFICATION OF ELIGIBLES TO FILL TWO POSITIONS OF ENGINEERING DRAFTSMAN (CIVIL) AT $1,800 PER ANNUM, ON WORK OF A TEMPORARY SEASONAL NATURE, REQUIRING THE SERVICES OF EMPLOYEES FOR A PERIOD OF NOT MORE THAN NINE MONTHS. BECAUSE OF THE SEASONAL NATURE OF THE WORK, PRESIDENTIAL AUTHORITY TO FILL THE POSITIONS WAS NOT OBTAINED.
IN RESPONSE TO THE MOST RECENT REQUISITION OF THIS OFFICE, THE CIVIL SERVICE COMMISSION FURNISHED A CERTIFICATE OF FIVE NAMES; ONE OF THE MEN CERTIFIED HAD ALREADY BEEN APPOINTED TO A POSITION OF DRAFTSMAN AT $1,800 PER ANNUM FROM ANOTHER CERTIFICATE AND THUS WAS ELIMINATED FROM CONSIDERATION; THE REMAINING FIVE NOW ARE EMPLOYED IN PERMANENT POSITIONS IN THE ENGINEER DEPARTMENT AT LARGE, NEW ORLEANS, LOUISIANA; THREE AS ASSISTANT DRAFTSMEN, ONE AT $1,740 PER ANNUM AND TWO AT $1,620 PER ANNUM, ONE AS JUNIOR DRAFTSMAN AT $1,620 PER ANNUM AND ONE AS JUNIOR DRAFTSMAN AT $1,440 PER ANNUM. THIS OFFICE RETURNED THE CERTIFICATE TO THE COMMISSION WITH THE INFORMATION THAT THE FIVE MEN CERTIFIED NOW ARE EMPLOYED IN POSITIONS OF LOWER GRADE AND COULD NOT BE PROMOTED EXCEPT UPON PRESIDENTIAL AUTHORITY. THE ATTENTION OF THE CIVIL SERVICE COMMISSION WAS CALLED TO THE RULING OF THE COMPTROLLER GENERAL OF SEPTEMBER 14, 1932 (A- 44521), IN WHICH IT WAS HELD THAT A REASSIGNMENT OF AN EMPLOYEE IN THE SERVICE TO A POSITION CARRYING A HIGHER RATE OF PAY, EVEN THOUGH SUCH POSITION SHOULD BE OF EMERGENCY OR TEMPORARY NATURE, WOULD BE AN ADMINISTRATIVE PROMOTION WITHIN THE MEANING OF SECTION 202 OF THE LEGISLATIVE APPROPRIATION ACT OF JUNE 30, 1932, AND THEREFORE NOT PERMISSIBLE EXCEPT WITH THE AUTHORITY OF THE PRESIDENT. AS IT WAS IMPORTANT BECAUSE OF THE SEASONAL NATURE OF THE WORK THAT THE POSITIONS BE FILLED PROMPTLY AND SINCE THE REASSIGNMENT OF MEN OF LOWER GRADE WOULD CREATE NEW VACANCIES IN PERMANENT POSITIONS FOR THE FILLING OF WHICH PRESIDENTIAL AUTHORITY ALSO WOULD BE REQUIRED THIS OFFICE CONSIDERED IT THE BETTER COURSE FROM AN ADMINISTRATIVE STANDPOINT NOT TO DISTURB THE MEN HOLDING THE PERMANENT POSITIONS BUT RATHER TO FILL THE TEMPORARY SEASONAL POSITIONS BY NEW APPOINTMENTS. THE COMMISSION THEREFORE WAS ASKED TO FURNISH ADDITIONAL NAMES.
THE COMMISSION HAS FURNISHED THIS OFFICE INFORMATION BY TELEPHONE, INDICATING THAT IT DOES NOT CONSIDER THAT PRESIDENTIAL AUTHORITY WOULD BE REQUIRED TO EFFECT THE EMPLOYMENT IN THE TEMPORARY SEASONAL POSITIONS OF HIGHER GRADE OF THE MEN NOW HOLDING THE PERMANENT POSITIONS, ALLEGING THAT THE FACT THAT THEY ARE WITHIN REACH FOR PROBATIONAL APPOINTMENT IN THE HIGHER GRADE MAKES IT PROPER FOR THE DEPARTMENT TO EFFECT THEIR DISCHARGE FROM THE POSITIONS OF PERMANENT NATURE AND TO APPOINT THEM IMMEDIATELY IN PROBATIONAL STATUS IN THE POSITIONS OF SEASONAL NATURE. IT IS THE VIEW OF THIS OFFICE THAT SUCH ACTION WOULD BE IN CIRCUMVENTION OF SECTION 202 OF THE LEGISLATIVE APPROPRIATION ACT APPROVED JUNE 30, 1932. FOR GUIDANCE IN THIS AND FUTURE CASES, IT IS REQUESTED THAT THE COMPTROLLER GENERAL FURNISH RULING AS TO WHETHER THE APPOINTMENT OF THE MEN NOW IN THE SERVICE MAY BE EFFECTED, WITH INCREASE TO THE RATE OF $1,800 PER ANNUM IN EACH CASE, WITHOUT PRESIDENTIAL AUTHORITY.
SECTIONS 202 AND 203 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 403, PROVIDE---
SEC. 202. NO ADMINISTRATIVE PROMOTIONS IN THE CIVIL BRANCH OF THE UNITED STATES GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA SHALL BE MADE DURING THE FISCAL YEAR ENDING JUNE 30, 1933: PROVIDED, THAT THE FILLING OF A VACANCY, WHEN AUTHORIZED BY THE PRESIDENT, BY THE APPOINTMENT OF AN EMPLOYEE OF A LOWER GRADE, SHALL NOT BE CONSTRUED AS AN ADMINISTRATIVE PROMOTION, BUT NO SUCH APPOINTMENT SHALL INCREASE THE COMPENSATION OF SUCH EMPLOYEE TO A RATE IN EXCESS OF THE MINIMUM RATE OF THE GRADE TO WHICH SUCH EMPLOYEE IS APPOINTED, UNLESS SUCH MINIMUM RATE WOULD REQUIRE AN ACTUAL REDUCTION IN COMPENSATION. THE PRESIDENT SHALL SUBMIT TO CONGRESS A REPORT OF THE VACANCIES FILLED UNDER THIS SECTION UP TO NOVEMBER 1, 1932, ON THE FIRST DAY OF THE NEXT REGULAR SESSION. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO COMMISSIONED, COMMISSIONED WARRANT, WARRANT, AND ENLISTED PERSONNEL, AND CADETS, OF THE COAST GUARD.
SEC. 203. NO APPROPRIATION AVAILABLE TO ANY EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT OR TO THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA DURING THE FISCAL YEAR ENDING JUNE 30, 1933, SHALL BE USED TO PAY THE COMPENSATION OF AN INCUMBENT APPOINTED TO ANY CIVIL POSITION UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHICH IS VACANT ON JULY 1, 1932, OR TO ANY SUCH POSITION WHICH MAY BECOME VACANT AFTER SUCH DATE: PROVIDED, THAT THIS INHIBITION SHALL NOT APPLY (A) TO ABSOLUTELY ESSENTIAL POSITIONS THE FILLING OF WHICH MAY BE AUTHORIZED OR APPROVED IN WRITING BY THE PRESIDENT OF THE UNITED STATES, (B) TO TEMPORARY, EMERGENCY, SEASONAL, OR COOPERATIVE POSITIONS, OR (C) TO COMMISSIONED, COMMISSIONED WARRANT, WARRANT, AND ENLISTED PERSONNEL, AND CADETS, OF THE COAST GUARD. THE APPROPRIATIONS OR PORTIONS OF APPROPRIATIONS UNEXPENDED BY THE OPERATION OF THIS SECTION SHALL NOT BE USED FOR ANY OTHER PURPOSES BUT SHALL BE IMPOUNDED AND RETURNED TO THE TREASURY, AND A REPORT OF ALL SUCH VACANCIES, THE NUMBER THEREOF FILLED, AND THE AMOUNTS UNEXPENDED, FOR THE PERIOD BETWEEN JULY 1, 1932, AND OCTOBER 31, 1932, SHALL BE SUBMITTED TO CONGRESS ON THE FIRST DAY OF THE NEXT REGULAR SESSION: PROVIDED, THAT SUCH IMPOUNDING OF FUNDS MAY BE WAIVED IN WRITING BY THE PRESIDENT OF THE UNITED STATES IN CONNECTION WITH ANY APPROPRIATION OR PORTION OF APPROPRIATION, WHEN, IN HIS JUDGMENT, SUCH ACTION IS NECESSARY AND IN THE PUBLIC INTEREST.
THE FACT THAT THE HIGHER POSITION MAY BE A TEMPORARY OR SEASONAL ONE, EXCEPTING IT FROM THE PROVISIONS OF SECTION 203 OF THE ECONOMY ACT, DOES NOT REMOVE IT FROM THE PROVISIONS OR RESTRICTIONS OF SECTION 202. THE APPOINTMENT OF AN EMPLOYEE FROM A LOWER GRADE TO A POSITION IN A HIGHER GRADE CONSTITUTES AN ADMINISTRATIVE PROMOTION WITHIN THE PURVIEW OF SECTION 202 OF THE ECONOMY ACT. ACCORDINGLY, YOU ARE INFORMED THAT VACANT POSITIONS OF A TEMPORARY OR SEASONAL NATURE MAY NOT BE FILLED BY PROMOTION OF EMPLOYEES FROM LOWER GRADES WITHOUT THE EXPRESS APPROVAL OF THE PRESIDENT OF THE UNITED STATES. 12 COMP. GEN. 354.