[Request for Reconsideration of Protest of NASA Subcontract Award]
Highlights
A firm requested reconsideration of its dismissed protest against a National Aeronautics and Space Administration (NASA) subcontract award for ammonium perchlorate. GAO had held that it did not have jurisdiction, since the subcontract award was not made by or for NASA. In its request for reconsideration, the protester contended that: (1) NASA had authority for source selection and controlled all meaningful aspects of the procurement; and (2) the prime contractor was an agent of NASA and its purchase obligations were subject to the availability of NASA appropriations. GAO held that the: (1) prime contractor retained substantial responsibility for the subcontract procurement; (2) prime contractor was not acting as a NASA agent, since it needed the product to fulfill its own contract with NASA; and (3) limitation of purchase obligations was a protective clause to ensure that the prime contractor would not be legally obligated to the subcontractor if funds were not available to reimburse it for its incurred costs. Accordingly, the dismissal was affirmed.
A-21753, FEBRUARY 27, 1928, 7 COMP. GEN. 529
DEPARTMENT OF AGRICULTURE - EMPLOYEES ATTENDING EDUCATIONAL COURSES THE ACT OF MARCH 4, 1913, 37 STAT. 854, REMOVING TO A CERTAIN EXTENT THE RESTRICTION OF THE ACT OF JUNE 26, 1912, 37 STAT. 184, AGAINST THE ATTENDANCE AT MEETINGS OR CONVENTIONS OF SOCIETIES OR ASSOCIATIONS, IN SO FAR AS EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE ARE CONCERNED, DOES NOT AUTHORIZE THE EMPLOYEES OF THAT DEPARTMENT TO ATTEND AT GOVERNMENT EXPENSE EDUCATIONAL LECTURE COURSES WHICH ARE NOT INCIDENTAL TO MEETINGS OF SOCIETIES OR ASSOCIATIONS.
COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, FEBRUARY 27, 1928:
THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 18, 1928, AS FOLLOWS:
IN THE CONDUCT OF ITS INVESTIGATIONAL WORK THE BUREAU OF DAIRY INDUSTRY OF THIS DEPARTMENT MAINTAINS FIVE FIELD STATIONS IN VARIOUS PARTS OF THE UNITED STATES, WHERE, AMONG OTHER THINGS, EXPERIMENTAL WORK IS BEING CONDUCTED IN THE BREEDING OF DAIRY ANIMALS. THE EMPLOYEES IN CHARGE OF THE DAIRY WORK AT THESE STATIONS ARE DAIRY HUSBANDMEN WHO HAVE NO SPECIALIZED KNOWLEDGE OF THE BREEDING OF DAIRY ANIMALS. AS A MATTER OF FACT KNOWLEDGE ALONG THIS LINE IS NOT REQUIRED AS A QUALIFICATION FOR THE POSITION OF DAIRY HUSBANDMAN. THE LACK OF KNOWLEDGE ON THE PART OF THESE EMPLOYEES OF BREEDING PROBLEMS MAKES IT IMPOSSIBLE FOR THEM TO DETERMINE, FROM PHYSICAL EXAMINATIONS OF THE GENITAL ORGANS OF DAIRY COWS, THE CONDITION OF SUCH ORGANS, DIAGNOSE PREGNANCY, AND TAKE PROPER CARE OF THE ANIMALS BEFORE, DURING, AND AFTER CALVING. THE LACK OF THIS KNOWLEDGE ON THE PART OF THE DAIRY HUSBANDMEN HAS FROM TIME TO TIME MADE IT NECESSARY TO EMPLOY THE SERVICES OF PRACTICING VETERINARIANS AT A CONSIDERABLE COST FOR THE ABOVE PURPOSES, AND ALSO TO SAVE THE LIVES OF ANIMALS WHOSE DEATHS WOULD HAVE INVOLVED A CONSIDERABLE POTENTIAL LOSS IN THE BREEDING WORK BEING PERFORMED.
FROM FEBRUARY 21 TO 25, 1928, A COURSE OF LECTURES WILL BE GIVEN AT CHICAGO, ILLINOIS, ON THE TREATMENT OF ANIMAL STERILITY WITH PARTICULAR REFERENCE TO THE DIAGNOSIS OF CONDITIONS AND DISEASES OF THE GENITAL ORGANS UNDER THE DIRECTION OF MR. FRANK B. GRAHAM, OF KANSAS CITY, MISSOURI. SIMILAR LECTURES WERE HELD IN CLEVELAND, OHIO, JANUARY 24 TO 28, PHILADELPHIA, PENNSYLVANIA, JANUARY 31 TO FEBRUARY 4, AND OTHERS WILL BE HELD IN ST. PAUL, MINNESOTA, MARCH 6 TO 10.
THE DAIRY HUSBANDMAN IN CHARGE OF THE FIELD STATION AT HUNTLEY, MONTANA, WILL BE IN WASHINGTON, D.C., ON OFFICIAL BUSINESS DURING THIS MONTH, AND IT IS DESIRED THAT ON HIS RETURN TRIP TO HIS OFFICIAL STATION HE STOP OFF AT CHICAGO AND BE PRESENT AT THE LECTURES TO BE HELD IN THAT CITY FOR THE PURPOSE OF ACQUIRING INFORMATION OF VALUE TO HIM IN HIS WORK.
YOUR DECISION IS REQUESTED WHETHER THE APPROPRIATION "SALARIES AND EXPENSES, BUREAU OF DAIRY INDUSTRY, 1928" IS AVAILABLE FOR THE PAYMENT OF THE SALARY AND SUBSISTENCE EXPENSES OF THE DAIRY HUSBANDMEN WHILE ATTENDING SUCH LECTURES.
THE DEPARTMENT IS NOT UNMINDFUL OF YOUR DECISION OF JANUARY 13, 1910 (16 COMP. DEC. 429), RELATIVE TO FOREST RANGERS ATTENDING COLLEGES AT THE EXPENSE OF THE GOVERNMENT TO TAKE COURSES IN FORESTRY. IT IS SUBMITTED, HOWEVER, THAT THERE IS LITTLE, IF ANY, SIMILARITY BETWEEN THAT CASE AND THE PRESENT INSTANCE. IN THE CASE OF THE FOREST RANGERS, THE COLLEGE COURSE ENABLED THE EMPLOYEE TO QUALIFY HIMSELF TO PERFORM THE DUTIES OF THE POSITION TO WHICH HE WAS APPOINTED, WHILE IN THE PRESENT INSTANCE THE ACQUISITION OF THE INFORMATION AT THE LECTURES IS FOR THE SOLE BENEFIT OF THE GOVERNMENT, RATHER THAN THE EMPLOYEE, FOR THE REASON THAT THIS SPECIALIZED KNOWLEDGE IS NOT REQUIRED OF A DAIRY HUSBANDMAN. ON THE OTHER HAND, IT WILL PERMIT THE EMPLOYEE TO SERVE IN THE DUAL CAPACITY OF A DAIRY HUSBANDMAN AND A VETERINARIAN, AND GREATLY INCREASE THE EFFICIENCY OF THE BUREAU'S INVESTIGATIONAL WORK, AND EFFECT A SUBSTANTIAL ECONOMY IN THE EXPENDITURE OF GOVERNMENT FUNDS.
FURTHERMORE, THE ACT OF MARCH 4, 1913 (37 STAT. 854), PROVIDES:
"THAT NOTHING CONTAINED IN THE ACT MAKING APPROPRIATIONS TO PROVIDE FOR THE EXPENSES OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA FOR THE FISCAL YEAR ENDING JUNE THIRTIETH, NINETEEN HUNDRED AND THIRTEEN, AND FOR OTHER PURPOSES, APPROVED JUNE TWENTY-SIXTH, NINETEEN HUNDRED AND TWELVE, SHALL BE SO CONSTRUED AS TO PROHIBIT THE PAYMENT FROM THE APPROPRIATIONS FOR THE DEPARTMENT OF AGRICULTURE OF EXPENSES INCIDENTAL TO THE DELIVERY OF LECTURES, THE GIVING OF INSTRUCTION, OR THE ACQUIRING OF INFORMATION AT MEETINGS BY ITS EMPLOYEES ON SUBJECTS RELATING TO THE WORK OF THE DEPARTMENT AUTHORIZED BY LAW.'
IT IS SUBMITTED THAT THE PROPOSAL TO PERMIT THESE HUSBANDMEN TO ATTEND THE LECTURES IN QUESTION FOR THE ACQUISITION OF INFORMATION AND KNOWLEDGE WHICH THEIR TERMS OF EMPLOYMENT DO NOT REQUIRE THEM TO POSSESS IS WITHIN THE AUTHORIZATION OF THE ACT OF MARCH 4, 1913, ABOVE NOTED.
SECTION 8 OF THE ACT OF JUNE 26, 1912, 37 STAT. 184, TO WHICH THE ACT OF MARCH 4, 1913, REFERS, PROVIDES:
NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE EXPENDED FOR MEMBERSHIP FEES OR DUES OF ANY OFFICER OR EMPLOYEE OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA IN ANY SOCIETY OR ASSOCIATION OR FOR EXPENSES OF ATTENDANCE OF ANY PERSON AT ANY MEETING OR CONVENTION OF MEMBERS OF ANY SOCIETY OR ASSOCIATION, UNLESS SUCH FEES, DUES, OR EXPENSES ARE AUTHORIZED TO BE PAID BY SPECIFIC APPROPRIATIONS FOR SUCH PURPOSES OR ARE PROVIDED FOR IN EXPRESS TERMS IN SOME GENERAL APPROPRIATION.
CONSIDERING THE TWO ACTS TOGETHER, THE LATER ACT OF MARCH 4, 1913, MERELY REMOVES IN PART THE RESTRICTIONS OF THE EARLIER ACT AND PERMITS EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE TO ATTEND MEETINGS OF SOCIETIES OR ASSOCIATIONS FOR THE PURPOSE OF DELIVERING LECTURES,GIVING INSTRUCTIONS, OR ACQUIRING INFORMATION ON SUBJECTS RELATING TO THE WORK OF THAT DEPARTMENT. HAD THE CONGRESS INTENDED TO PERMIT EMPLOYEES TO ATTEND EDUCATIONAL COURSES OR LECTURES IT COULD HAVE VERY EASILY INCLUDED SUCH AUTHORITY IN THE ACT. SAID ACT OF MARCH 4, 1913, HOWEVER, WHILE AUTHORIZING THE EMPLOYEES TO GIVE LECTURES, DOES NOT AUTHORIZE THEIR ATTENDANCE AT LECTURES GIVEN BY SOME ONE ELSE EXCEPT IN SO FAR AS THEY MAY BE INCIDENT TO A MEETING OF SOME SOCIETY OR ASSOCIATION. THE LECTURE COURSES DESCRIBED IN YOUR SUBMISSION DO NOT APPEAR TO BE INCIDENTAL TO A MEETING OF ANY SOCIETY OR ASSOCIATION, BUT TO BE FOR PURELY EDUCATIONAL PURPOSES.
IN DECISION TO YOU OF JULY 9, 1926, 6 COMP. GEN. 15, IT WAS HELD THAT THERE IS NO AUTHORITY OF LAW FOR DETAILING EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE TO EDUCATIONAL INSTITUTIONS FOR COURSES OF INSTRUCTION. SAID DECISION IS EQUALLY APPLICABLE TO ATTENDANCE AT LECTURES, WHETHER THEY BE DELIVERED AT AN EDUCATIONAL INSTITUTION OR INDEPENDENTLY OF SUCH AN INSTITUTION. 2 COMP. GEN. 17; A-20837, DECEMBER 20, 1927.
I AM CONSTRAINED TO HOLD, THEREFORE, THAT THE APPROPRIATION FOR "SALARIES AND EXPENSES, BUREAU OF ANIMAL INDUSTRY, 1928," FOUND IN THE ACT OF JANUARY 18, 1927, 44 STAT. 981, IS NOT AVAILABLE FOR THE PAYMENT OF COMPENSATION OR OF SUBSISTENCE EXPENSES OF EMPLOYEES OF THAT BUREAU WHILE ATTENDING THE LECTURE COURSES REFERRED TO IN YOUR SUBMISSION.