B-112031, NOVEMBER 7, 1952, 32 COMP. GEN. 229

B-112031, NOVEMBER 7, 1952, 32 COMP. GEN. 229

PERSONAL FURNISHINGS - SPECIAL CLOTHING AND EQUIPMENT - UNIFORMS THE SPECIAL CLOTHING AND EQUIPMENT PURCHASE AUTHORIZATION PROVISION IN THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, WAS INTENDED TO PROVIDE BASIC STATUTORY AUTHORITY FOR PURCHASE OF ITEMS USED BY EMPLOYEES ENGAGED IN HAZARDOUS OCCUPATIONS WHICH ARE ESSENTIAL TO THE SAFE AND SUCCESSFUL ACCOMPLISHMENT OF THE WORK INVOLVED AND PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT AND MAY NOT BE REGARDED AS AUTHORITY SPECIFICALLY IN APPROPRIATIONS OR OTHER ACTS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, NOVEMBER 7, 1952:

REFERENCE IS MADE TO LETTER DATED SEPTEMBER 22, 1952, FROM THE ACTING SECRETARY OF COMMERCE, REQUESTING MY DECISION AS TO WHETHER SECTION 13 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 809, AS AMENDED, 5 U.S.C. 118G, MAY BE EMPLOYED AS AUTHORITY FOR THE PURCHASE AND MAINTENANCE OF UNIFORMS FOR CIVIL AERONAUTICS ADMINISTRATION PERSONNEL TO POLICE THE WASHINGTON NATIONAL AIRPORT AND THE TWO INTERNATIONAL AIRPORTS AT ANCHORAGE AND FAIRBANKS, ALASKA, IF THE SPECIFIC LANGUAGE THEREFOR PRESENTLY INCLUDED IN THE APPROPRIATIONS FOR MAINTENANCE AND OPERATION OF THE SAID AIRPORTS CONTAINED IN THE DEPARTMENT OF COMMERCE APPROPRIATION ACT, 1953, APPROVED JULY 10, 1952, 66 STAT. 562, 563, BE OMITTED THEREFROM.

SECTION 13 OF THE ACT OF AUGUST 2, 1946, IS AS FOLLOWS:

APPROPRIATIONS AVAILABLE FOR THE PROCUREMENT OF SUPPLIES AND MATERIAL OR EQUIPMENT SHALL BE AVAILABLE FOR THE PURCHASE AND MAINTENANCE OF SPECIAL CLOTHING AND EQUIPMENT FOR THE PROTECTION OF PERSONNEL IN THE PERFORMANCE OF THEIR ASSIGNED TASKS.

IT IS STATED IN THE LETTER THAT UNIFORMS FOR CIVIL AERONAUTICS ADMINISTRATION PERSONNEL EMPLOYED TO POLICE THE THREE AIRPORTS ARE PURCHASED AND MAINTAINED FROM THE APPROPRIATIONS," MAINTENANCE AND OPERATION, WASHINGTON NATIONAL AIRPORT," AND," MAINTENANCE AND OPERATION OF PUBLIC AIRPORTS, TERRITORY OF ALASKA," EACH OF WHICH EXPRESSLY PROVIDES FOR "PURCHASE, CLEANING, AND REPAIR OF UNIFORMS; " THAT SUCH UNIFORMS ARE WORN ONLY DURING DUTY HOURS AND ARE FURNISHED FOR THE SOLE PURPOSE OF ACHIEVING MORE EFFICIENT GOVERNMENT OPERATION; AND THAT THE FACTORS WHICH FORMED THE BASIS FOR OFFICE DECISION OF MARCH 20, 1950, B-93195, ALSO ARE PRESENT IN RESPECT OF THE PURCHASE AND MAINTENANCE OF UNIFORMS INCIDENT TO POLICING THE REFERRED-TO AIRPORTS.

THE DOUBT AS TO THE NECESSITY FOR INCLUDING SPECIFIC AUTHORITY IN THE APPROPRIATIONS FOR PURCHASE AND MAINTENANCE OF UNIFORMS IS SAID TO ARISE BY REASON OF THE DECISION OF MARCH 20, 1950, B-93195, TO CAPTAIN DAN E. ROBERTSON, FINANCE OFFICER, DEPARTMENT OF THE ARMY. THAT DECISION HELD THAT PAYMENT FOR REPAIRS AND DRY CLEANING OF OVERCOATS ISSUED TO CIVILIAN GUARDS AT AN ARSENAL FROM FUNDS AVAILABLE FOR THE PROCUREMENT OF SUPPLIES AND MATERIAL OR EQUIPMENT WAS AUTHORIZED, AND THAT THE OVERCOATS PROPERLY COULD BE CONSIDERED SPECIAL CLOTHING USED FOR THE PRIMARY BENEFIT OF THE GOVERNMENT WITHIN THE PURVIEW OF SECTION 13 OF THE ACT OF AUGUST 2, 1946. THAT CONCLUSION WAS BASED UPON AN ADMINISTRATIVE SHOWING THAT THE OVERCOATS WERE PURCHASED UNDER WAR TIME EMERGENCY CONDITIONS AND IN PURSUANCE OF A DECISION OF THIS OFFICE, AND WAS NOT INTENDED TO, AND DOES NOT, ESTABLISH A GENERAL POLICY OR AFFECT IN ANY WAY THE PREVIOUS HOLDINGS OF THIS OFFICE, AND WAS NOT INTENDED TO, AND DOES NOT, ESTABLISH A GENERAL POLICY OR AFFECT IN ANY WAY THE PREVIOUS HOLDINGS OF THIS OFFICE WITH RESPECT TO THE USE OF GOVERNMENT FUNDS FOR THE PURCHASE OF UNIFORMS.

UNIFORMS FOR CIVILIAN EMPLOYEES GENERALLY ARE CONSIDERED PERSONAL FURNISHINGS WHICH AN EMPLOYEE MUST PROCURE AT HIS OWN EXPENSE TO QUALIFY HIM FOR THE POSITION TO WHICH APPOINTED. THE RULE IS SUMMARIZED IN 2 COMP. GEN. 652, TO THE EFFECT THAT PERSONAL FURNISHINGS ARE NOT AUTHORIZED TO BE PURCHASED UNDER APPROPRIATIONS IN THE ABSENCE OF SPECIFIC PROVISION THEREFOR CONTAINED IN SUCH APPROPRIATIONS OR OTHER ACTS, IF SUCH FURNISHINGS ARE FOR THE PERSONAL CONVENIENCE, COMFORT OR PROTECTION OF THE EMPLOYEES, OR ARE SUCH AS REASONABLY TO BE REQUIRED AS A PART OF THE USUAL AND NECESSARY EQUIPMENT FOR THE WORK UPON WHICH THEY ARE ENGAGED OR FOR WHICH THEY ARE EMPLOYED. SEE 2 COMP. GEN. 258 AND DECISIONS CITED THEREIN; B-63078, JANUARY 30, 1947. CF. B-30882, DECEMBER 22, 1942; B- 36201, AUGUST 13, 1943.

THE ABOVE-QUOTED PROVISION OF THE 1946 ACT--- BY ITS SPECIFIC TERMS- - EXPRESSES A CLEAR AND DEFINITE DETERMINATION TO AUTHORIZE THE PURCHASE OF SPECIAL CLOTHING AND PROTECTIVE EQUIPMENT FOR PERSONNEL IN THE PERFORMANCE OF OFFICIAL DUTY AS A MATTER OF GENERAL PERMANENT LAW RATHER THAN IN THE FORM OF ANNUAL LEGISLATION. THE LEGISLATIVE HISTORY THEREOF CLEARLY INDICATES THAT IT WAS INTENDED TO PROVIDE BASIC STATUTORY AUTHORITY FOR THE PURCHASE OF SUCH ITEMS AS RUBBER GLOVES, RUBBER BOOTS, AND ASBESTOS CLOTHING, WHERE EMPLOYEES ARE ENGAGED IN HAZARDOUS OCCUPATIONS. IN THAT CONNECTION, AND IN SUPPORT OF THE VIEW THAT SUCH PROVISION CONTAINS NOTHING THEREIN WHICH REASONABLY MAY BE CONSTRUED AS RELAXING THE ESTABLISHED REQUIREMENTS INCIDENT TO FURNISHING UNIFORMS AT GOVERNMENT EXPENSE, IT IS PARTICULARLY FOR NOTING THAT LEGISLATION TO PROVIDE UNIFORMS FOR CIVILIAN EMPLOYEES OF THE GOVERNMENT WAS INTRODUCED IN THE 81ST CONGRESS (S. 1478 AND S. 2928) AND IN THE 82D CONGRESS (S. 191, S. 3394, AND H.R. 8464), BUT THAT SUCH PROPOSED LEGISLATION FAILED OF ENACTMENT INTO LAW.

IT THUS SEEMS CLEAR THAT WHETHER THE STATUTORY PROVISION IN QUESTION MAY BE EMPLOYED AS AUTHORITY TO PURCHASE AND MAINTAIN UNIFORMS AT GOVERNMENT EXPENSE IS, OF COURSE, A MATTER FOR DETERMINATION UPON A SHOWING OF THE FACTS AND CIRCUMSTANCES AS TO THE USE AND NEED THEREFOR IN EACH PARTICULAR CASE, AND IN THE INSTANT SITUATION THE EMPLOYMENT OF SUCH PROVISION AS AUTHORITY TO FURNISH UNIFORMS FOR CIVIL AERONAUTICS ADMINISTRATION PERSONNEL ENGAGED TO POLICE THE THREE AIRPORTS IS NOT ENTIRELY FREE FROM DOUBT.

ACCORDINGLY, YOU ARE ADVISED THAT THIS OFFICE IS OF THE VIEW THAT THE SPECIFIC APPROPRIATION LANGUAGE PROVIDING FOR "PURCHASE, CLEANING, AND REPAIR OF UNIFORMS," PRESENTLY CARRIED IN THE APPROPRIATIONS FOR MAINTENANCE AND OPERATION OF THE AIRPORTS, OBVIATES ANY DOUBT IN THE MATTER, AND, THEREFORE, IF IT BE DESIRED TO ACCOMPLISH THE PURPOSE EXPRESSED BY THE QUOTED LANGUAGE, IT WOULD APPEAR PREFERABLE TO RETAIN SUCH LANGUAGE RATHER THAN LEAVE THE MATTER TO CONSTRUCTION UNDER THE PROVISIONS OF SECTION 13 OF THE ACT OF AUGUST 2, 1946, WHICH, AS INDICATED ABOVE, WOULD BE DOUBTFUL.

IT IS ALSO STATED THAT IN THE SEVERAL AGENCIES OF THE DEPARTMENT OF COMMERCE THERE ARE MANY EMPLOYEES PERFORMING A MYRIAD OF TASKS WHERE EXTRAORDINARY CLOTHING MIGHT BE REQUIRED, AND THAT A GENERAL RULE OR GUIDE AS TO THE EXTENT OR GENERAL LIMITS OF SECTION 13, FOR USE AS A "ROUGH RULE OF THUMB" TO DETERMINE THE ELIGIBILITY OF AT LEAST THE CLEARLY MERITORIOUS CASES, WOULD BE VERY HELPFUL. IN THAT REGARD, AND AS ILLUSTRATIVE OF THE PROBLEM IN DETERMINING THE ELIGIBILITY OF SUCH CLOTHING, THERE IS CITED A FIRE-RESISTANT TYPE OF COVERALL AND THE USE THEREOF DISTINGUISHED BETWEEN EMPLOYEES REQUIRED TO WEAR SUCH CLOTHING IN CONDUCTING AIRCRAFT ENGINE FIRE TESTS AT THE CIVIL AERONAUTICS ADMINISTRATION TECHNICAL DEVELOPMENT AND EVALUATION CENTER, AND AN AIRCRAFT MECHANIC WHO PERFORMS THE USUAL MECHANICAL DUTIES REQUIRED IN THE MAINTENANCE OF AIRCRAFT AND AIRCRAFT ENGINES.

THIS OFFICE HAS ESTABLISHED CERTAIN GENERAL POLICY GUIDE LINES OR RULES WITH RESPECT TO FURNISHING SPECIAL CLOTHING AND EQUIPMENT TO GOVERNMENT EMPLOYEES, WHICH ARE SET FORTH IN THE DECISION, 3 COMP. GEN. 433. QUESTIONS CONCERNING THE PROPRIETY OF FURNISHING SPECIAL CLOTHING AND EQUIPMENT TO CIVILIAN EMPLOYEES HAVE BEEN CONSIDERED BY THIS OFFICE A NUMBER OF TIMES AND IT HAS BEEN HELD THAT WHERE SUCH EQUIPMENT IS ESSENTIAL TO THE SAFE AND SUCCESSFUL ACCOMPLISHMENT OF THE WORK INVOLVED AND PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT, PAYMENT MAY BE MADE FROM APPROPRIATIONS OTHERWISE AVAILABLE THEREFOR; BUT THAT ON THE OTHER HAND, IF THE EQUIPMENT BE SOLELY FOR THE PROTECTION OF THE EMPLOYEE WITHOUT RESULTING BENEFITS TO THE GOVERNMENT, AND SUCH AS THE EMPLOYEE REASONABLY MIGHT BE EXPECTED TO FURNISH AS A PART OF THE OFFICIAL EQUIPMENT OF HIS POSITION, APPROPRIATED FUNDS WOULD NOT BE AVAILABLE FOR THE PURCHASE THEREOF. SEE 2 COMP. GEN. 52; 3 ID. 848; 21 ID. 731; 28 ID. 236; B-48169, MARCH 14, 1945; B-56561, APRIL 1, 1946. CF. 3 COMP. GEN. 433; 4 ID. 123; B-57633, JUNE 11, 1946.

THUS, WHILE THE PROVISIONS OF SECTION 13 OF THE ACT OF AUGUST 2, 1946, ARE NOT READILY SUSCEPTIBLE OF A SPECIFIC ENUMERATION OF THE VARIOUS TYPES OF SPECIAL CLOTHING AND PROTECTIVE EQUIPMENT PROPERLY WITHIN THE SCOPE THEREOF, IT IS BELIEVED THE CITED RULES AND DECISIONS WILL BE OF ASSISTANCE TO YOU IN RESOLVING ANY PROBLEMS WHICH MIGHT ARISE WITH RESPECT TO SUCH MATTERS.