A-86612, JUNE 8, 1937, 16 COMP. GEN. 1055

A-86612, JUNE 8, 1937, 16 COMP. GEN. 1055

CONTRACTS - GOVERNMENT INSPECTION SERVICE - SALARY PAYMENTS FROM CONSTRUCTION APPROPRIATIONS THE APPROPRIATION MADE AVAILABLE UNTIL JUNE 30, 1937, BY THE DEFICIENCY APPROPRIATION ACT OF JUNE 22, 1936, 49 STAT. 1618, FOR CONSTRUCTION, OR PURCHASE, AND EQUIPMENT OF A LIGHTHOUSE TENDER NOT HAVING SPECIFICALLY AUTHORIZED EXPENDITURES FOR PERSONAL SERVICES, PAYMENT THEREFROM OF SALARIES OF A GOVERNMENT INSPECTOR--- A PERSONAL SERVICE--- IS NEITHER AUTHORIZED FOR THE FISCAL YEAR 1937, NOR 1938, NOTWITHSTANDING THE OBLIGATION OF THE APPROPRIATION BY AWARD MADE PRIOR TO THE EXPIRATION OF THE FISCAL YEAR OF AVAILABILITY. 11 COMP. GEN. 500, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO SECRETARY OF COMMERCE, JUNE 8, 1937:

YOUR LETTER OF MAY 28, 1937, IS AS FOLLOWS:

REFERENCE IS MADE TO THE ACT OF JUNE 22, 1936, 49 STAT. 1618, APPROPRIATING $227,000 UNDER THE TITLE OF SPECIAL PROJECTS, LIGHT HOUSE SERVICE, 1936-1937, FOR ESTABLISHING AND IMPROVING AIDS TO NAVIGATION AND OTHER WORKS, INCLUDING THE CONSTRUCTION OR PURCHASE, AND EQUIPMENT OF A LIGHTHOUSE TENDER AT A COST NOT TO EXCEED $125,000. DURING THE CONSTRUCTION OF LIGHTHOUSE VESSELS IT IS NECESSARY TO KEEP A COMPETENT INSPECTOR AT THE CONTRACTOR'S PLANT DURING PRACTICALLY THE ENTIRE PERIOD OF CONSTRUCTION, AND IN THE PAST THE SALARIES OF SUCH INSPECTORS HAVE BEEN PAID FROM THE APPROPRIATION APPLICABLE TO THE CONSTRUCTION, ETC., OF THE VESSEL BEING INSPECTED, WHICH PAYMENTS HAVE BEEN UNIFORMLY PASSED BY THE GENERAL ACCOUNTING OFFICE. TO THIS END THE SALARY OF AN INSPECTOR WAS INCLUDED IN THE ESTIMATE ON WHICH THE APPROPRIATION OF $125,000 WAS BASED. BIDS WERE OPENED ON MAY 14, 1937, FOR THE CONSTRUCTION OF SAID TENDER, AND IT IS EXPECTED THAT CONSTRUCTION WILL ACTUALLY GET UNDERWAY TO THE EXTENT THAT AN INSPECTOR WILL BE REQUIRED ABOUT THE MIDDLE OF JUNE. SINCE THE CONTRACT TIME WILL RUN FOR 300 CALENDAR DAYS FROM DATE OF NOTICE TO PROCEED, PRACTICALLY ALL OF THE INSPECTOR'S SALARY, APPROXIMATELY $3,800, WILL BE EARNED DURING THE FISCAL YEAR 1938; THEREFORE YOUR DECISION IS REQUESTED AS TO WHETHER THE INSPECTOR'S SALARY AFTER JUNE 30, 1937, MAY BE PAID FROM SAID APPROPRIATION PROVIDED THE CONSTRUCTION CONTRACT IS LET PRIOR TO JULY 1, 1937.

THE DEFICIENCY APPROPRIATION ACT OF JUNE 22, 1936, 49 STAT. 1597, 1618, CONTAINS THE APPROPRIATION ITEM IN QUESTION AS FOLLOWS:

SPECIAL PROJECTS: FOR ESTABLISHING AND IMPROVING AIDS TO NAVIGATION AND OTHER WORKS, INCLUDING THE CONSTRUCTION, OR PURCHASE, AND EQUIPMENT OF A LIGHTHOUSE TENDER AT A COST NOT TO EXCEED $125,000, AS MAY BE SPECIFICALLY APPROVED BY THE SECRETARY OF COMMERCE, $227,000, TO CONTINUE AVAILABLE UNTIL JUNE 30, 1937.

IN DECISION OF JUNE 28, 1932, 11 COMP. GEN. 500, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

WHERE AN ACT AUTHORIZES EXPENDITURES FOR PERSONAL SERVICES IN CONNECTION WITH A CONSTRUCTION PROJECT TO BE PAID UNDER THE SAME APPROPRIATION AS THE CONSTRUCTION WORK, THE SALARIES OF GOVERNMENT INSPECTORS ENGAGED EXCLUSIVELY IN CONNECTION WITH PROJECTS THE CONTRACTS OF WHICH WERE LET DURING THE FISCAL YEAR FOR WHICH THE APPROPRIATION WAS PROVIDED, MAY BE CONTINUED TO BE PAID AFTER THE CLOSE OF THE FISCAL YEAR UNTIL THE PROJECT HAS BEEN COMPLETED.

YOU WILL NOTE THIS RULE WAS STATED WITH REFERENCE TO AN APPROPRIATION SPECIFICALLY AVAILABLE FOR "SALARIES FOR LABOR AND SERVICES, TRAVELING EXPENSES," WHEREAS IN THE INSTANT CASE THE APPROPRIATION FOR NOT TO EXCEED $125,000 FOR THE CONSTRUCTION OF PURCHASE OF A TENDER, AND ITS EQUIPMENT, HAS NOT BEEN MADE AVAILABLE SPECIFICALLY FOR PERSONAL SERVICES.

INSPECTION OF CONSTRUCTION WORK FOR THE GOVERNMENT IS A PERSONAL SERVICE AND IS NOT TO BE REGARDED SO INHERENTLY A PART OF THE CONSTRUCTION AS TO RENDER A PURELY CONSTRUCTION APPROPRIATION AVAILABLE FOR PAYMENT OF THE INSPECTOR'S SALARY. ON THE CONTRARY, IN THE ABSENCE OF ANY OTHER STATUTORY AUTHORITY, THE PERSONAL SERVICES OF INSPECTORS OF CONSTRUCTION WORK--- THE DUTIES OF INSPECTORS BEING PRESUMED TO BE TO PROTECT THE INTERESTS OF THE GOVERNMENT--- ARE FOR PERFORMANCE BY THE REGULAR PERSONNEL OF THE PARTICULAR DEPARTMENT CONCERNED, IN THIS INSTANCE THE DEPARTMENT OF COMMERCE, UNDER PROPER SUPERVISION, AND THE SALARY CONSTITUTES A PROPER CHARGE AGAINST THE APPROPRIATION AVAILABLE FOR SALARIES. 6 COMP. GEN. 140; ID. 324. SEE ALSO 7 COMP. GEN. 153.

THE APPROPRIATION ITEM IN QUESTION, INCLUDING NOT TO EXCEED $125,000 FOR THE TENDER, WAS OFFERED AS AN AMENDMENT TO THE DEFICIENCY BILL H.R. 12624, SEVENTY-FOURTH CONGRESS, SECOND SESSION, ON THE FLOOR OF THE SENATE JUNE 1, 1936 (SEE CONG.REC., VOL. 80, P. 8508), BASED ON SUPPLEMENTAL ESTIMATES SUBMITTED BY THE PRESIDENT MAY 15, 1936 (S.DOC. NO. 227). THERE IS NOTHING IN THE BILL, IN THE SENATE DOCUMENT CONTAINING THE PRESIDENT'S LETTER, OR IN THE DEBATES INDICATING THAT THE ITEM OF $125,000 WAS TO BE REGARDED AS AVAILABLE FOR THE SERVICES OF AN INSPECTOR. EVEN IF SUCH A USE OF THE APPROPRIATION MIGHT HAVE BEEN CONTEMPLATED AND/OR SUGGESTED IN THE ESTIMATES OR IN THE DEBATES, TO BE AVAILABLE FOR THAT PURPOSE THE APPROPRIATION SHOULD HAVE SPECIFICALLY PROVIDED FOR PERSONAL SERVICES.

YOU ARE ADVISED, THEREFORE, THAT THE APPROPRIATION OF NOT TO EXCEED $125,000 FOR CONSTRUCTION AND EQUIPMENT OF A LIGHTHOUSE TENDER IS NOT AVAILABLE FOR THE SALARY OF AN INSPECTOR EITHER DURING THE FISCAL YEAR 1937 OR THE FISCAL YEAR 1938. CF. DECISION OF SEPTEMBER 1, 1925, A 11024.