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B-133394, NOV. 1, 1967

B-133394 Nov 01, 1967
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THEREFORE TERMINATION ACTION IS PROPER. THE DETERMINATION OF WHETHER PERSONAL SERVICE CONTRACTS ARE CONTRARY TO LAW DOES NOT DEPEND ON A SINGLE CONTRACT PROVISION SUCH AS THE TASK ASSIGNMENT OR TECHNICAL DIRECTION REQUIREMENT BUT UPON THE ENTIRE CONTRACT AND THE OPERATIONS TO BE PERFORMED AS WELL AS DEGREE OF EACH ELEMENT AND CRITERION. MACY: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 17. I FEEL CERTAIN THIS DOCUMENT WILL BE OF SIGNIFICANT VALUE TO AGENCIES IN ASCERTAINING THE PROPRIETY OF TECHNICAL SUPPORT. THE GENERAL ACCOUNTING OFFICE HAS NOT HAD NOR DOES IT NOW HAVE ANY DISAGREEMENT WITH THE CIVIL SERVICE COMMISSION AS TO THE STANDARDS TO BE APPLIED IN DETERMINING WHETHER A CONTRACT CREATES A RELATIONSHIP WITH THE GOVERNMENT TANTAMOUNT TO THAT OF AN EMPLOYER EMPLOYEE RELATIONSHIP.

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B-133394, NOV. 1, 1967

PERSONAL SERVICES - CONTRACT V. CIVILIAN PERSONNEL - CRITERIA LETTER TO CHAIRMAN, CSC, RE OPINION OF GENERAL COUNSEL OF CSC ON LEGALITY OF TWO SUPPORT SERVICE CONTRACTS AT GODDARD SPACE FLIGHT CENTER, NASA. GAO CONCURS IN VIEW THAT TWO TECHNICAL SUPPORT SERVICE CONTRACTS CREATE AN EMPLOYER-EMPLOYEE RELATIONSHIP PROSCRIBED BY THE PERSONNEL LAWS AND, THEREFORE TERMINATION ACTION IS PROPER. THE DETERMINATION OF WHETHER PERSONAL SERVICE CONTRACTS ARE CONTRARY TO LAW DOES NOT DEPEND ON A SINGLE CONTRACT PROVISION SUCH AS THE TASK ASSIGNMENT OR TECHNICAL DIRECTION REQUIREMENT BUT UPON THE ENTIRE CONTRACT AND THE OPERATIONS TO BE PERFORMED AS WELL AS DEGREE OF EACH ELEMENT AND CRITERION.

TO MR. MACY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 17, 1967, ENCLOSING A COPY OF THE OCTOBER 1967 OPINION OF THE GENERAL COUNSEL OF THE CIVIL SERVICE COMMISSION REGARDING THE LEGALITY OF SELECTED CONTRACTS AT GODDARD SPACE FLIGHT CENTER, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION.

I FEEL CERTAIN THIS DOCUMENT WILL BE OF SIGNIFICANT VALUE TO AGENCIES IN ASCERTAINING THE PROPRIETY OF TECHNICAL SUPPORT, OR SIMILAR, SERVICE CONTRACTS. THE GENERAL ACCOUNTING OFFICE HAS NOT HAD NOR DOES IT NOW HAVE ANY DISAGREEMENT WITH THE CIVIL SERVICE COMMISSION AS TO THE STANDARDS TO BE APPLIED IN DETERMINING WHETHER A CONTRACT CREATES A RELATIONSHIP WITH THE GOVERNMENT TANTAMOUNT TO THAT OF AN EMPLOYER EMPLOYEE RELATIONSHIP. BELIEVE FURTHER THAT THE ELEMENTS REQUIRED BY YOUR GENERAL COUNSEL'S OPINION TO BE USED IN DETERMINING WHETHER A CONTRACT, BY ITS TERMS, OR IN ITS PERFORMANCE, CONSTITUTES THE PROCUREMENT OF PERSONAL SERVICES PROSCRIBED BY THE PERSONNEL LAWS WILL BE MOST USEFUL TO MY STAFF IN OUR REVIEWS IN THIS AREA. THE APPLICATION OF THE GENERAL CRITERIA AND ELEMENTS TO THE TWO GODDARD SPACE FLIGHT CENTER CONTRACTS AND THE VIEW EXPRESSED IN THE OPINION THAT ORDERLY TERMINATION OR CONVERSION IS REQUIRED IS CONSISTENT WITH THE POSITION TAKEN BY THE COMMISSION IN 1965 IN CONNECTION WITH THE CONTRACT TECHNICIANS AT THE FUCHU AIR FORCE BASE, JAPAN. THE GENERAL ACCOUNTING OFFICE CONCURRED IN THE ACTION TAKEN AT THAT TIME AND IT CONCURS IN THE ACTION NOW INDICATED.

I RECOGNIZE THAT DIFFERENCES OF OPINION MAY SOMETIMES EXIST AS TO THE RELATIONSHIP CREATED UNDER THE TERMS OR OPERATION OF PARTICULAR SUPPORT SERVICE CONTRACTS BECAUSE OF DIFFERING CONCLUSIONS AS TO THE APPLICATION OF THE GENERAL CRITERIA AND ELEMENTS TO SPECIFIC SITUATIONS. WE THINK IT IS CLEAR FROM THE OPINION, HOWEVER, THAT NO SINGLE PROVISION OF A CONTRACT, SUCH AS THE TASK ASSIGNMENT OR TECHNICAL DIRECTION REQUIREMENT, MAY CONSTITUTE THE BASIS FOR A DETERMINATION THAT THE CONTRACT IS OR IS NOT PROSCRIBED BY THE PERSONNEL LAWS. RATHER, THE OPINION REQUIRES, BEFORE AN ADVERSE DETERMINATION, (1) A REALISTIC CONSIDERATION OF THE PROVISIONS OF THE ENTIRE CONTRACT AND THE OVERALL SUBSTANCE OF THE OPERATIONS THEREUNDER, AND (2) A CONCLUSION THAT EACH OF THE STATED ELEMENTS IS INVOLVED THEREIN TO A SUBSTANTIAL DEGREE.

MY VIEW IS THAT THE CIVIL SERVICE COMMISSION AND THE GENERAL ACCOUNTING OFFICE HAVE A CONTINUING RESPONSIBILITY TO ASSURE THAT APPLICABLE LAWS ARE NOT BYPASSED. TO THAT END DETERMINATIONS MUST OF NECESSITY BE MADE THAT WILL ASSURE SUCH COMPLIANCE. ACCORDINGLY, AS SUCH MATTERS COME TO OUR ATTENTION DURING OUR AUDIT ACTIVITIES, WE WILL CONTINUE TO CONSULT WITH REPRESENTATIVES OF THE COMMISSION REGARDING TECHNICAL SUPPORT SERVICE AND SIMILAR CONTRACTS WHICH DO NOT APPEAR TO MEET THE GENERAL CRITERIA AND ELEMENTS SET FORTH IN THE OPINION.

THE GENERAL ACCOUNTING OFFICE IN THE EXERCISE OF ITS RESPONSIBILITIES IN THIS AREA ALSO WILL CONTINUE TO UNDERTAKE TO DETERMINE WHETHER AGENCIES ARE OPERATING IN AN ECONOMICAL AND EFFICIENT MANNER IN CARRYING OUT THEIR FUNCTIONS.

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