B-43730, AUGUST 21, 1944, 24 COMP. GEN. 147

B-43730: Aug 21, 1944

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OF LUMBER INSPECTORS AND EXPERTS ON MATTERS PERTAINING TO THE PREPARATION OF ADVERTISING MATERIAL WHO ARE TO BE EMPLOYED AND PAID TO PERFORM REGULAR FUNCTIONS IMPOSED BY LAW UPON THE O.P.A. ( MODIFIED BY 24 COMP. FOR TRAVELING EXPENSES ARE AVAILABLE FOR THE TRAVELING EXPENSES OF PERSONS OR ORGANIZATIONS EMPLOYED AND PAID COMPENSATION WITHOUT REGARD TO THE CIVIL SERVICE AND CLASSIFICATION LAWS PURSUANT TO THE SPECIAL ITEM IN SAID APPROPRIATION ACT PROVIDING A LIMITED SUM FOR THE TEMPORARY EMPLOYMENT OF PERSONS OR ORGANIZATIONS ON SUCH BASIS. NO APPOINTMENTS OR OATHS OF OFFICE ARE REQUIRED. 1944: I HAVE YOUR LETTER OF AUGUST 5. IT IS NECESSARY TO EMPLOY THE SERVICES OF INSPECTORS AS EXPERTS TO EXAMINE SHIPMENTS OF LUMBER WHEN A VIOLATION OF STANDARD REQUIREMENTS THROUGH UPGRADING IS REPORTED OR SUSPECTED.

B-43730, AUGUST 21, 1944, 24 COMP. GEN. 147

PERSONAL SERVICES - EMPLOYMENT BY CONTRACT - COMPENSATION RATES; TRAVELING EXPENSES; APPOINTMENT OR OATH NECESSITY EXCEPT TO THE EXTENT OF THE AVAILABILITY OF THE SPECIAL ITEM PROVIDED IN THE CURRENT APPROPRIATION (ACT OF JUNE 28, 1944) OF THE OFFICE OF PRICE ADMINISTRATION FOR THE TEMPORARY EMPLOYMENT OF PERSONS OR ORGANIZATIONS "WITHOUT REGARD TO * * * CLASSIFICATION LAWS," THE APPROPRIATION MAY NOT BE USED TO REIMBURSE COMMERCIAL ORGANIZATIONS OR INDIVIDUALS FOR THE COMPENSATION, OTHER THAN AT RATES PRESCRIBED BY THE CLASSIFICATION ACT, AS AMENDED, OF LUMBER INSPECTORS AND EXPERTS ON MATTERS PERTAINING TO THE PREPARATION OF ADVERTISING MATERIAL WHO ARE TO BE EMPLOYED AND PAID TO PERFORM REGULAR FUNCTIONS IMPOSED BY LAW UPON THE O.P.A. ( MODIFIED BY 24 COMP. GEN. 272.) FUNDS OF THE OFFICE OF PRICE ADMINISTRATION APPROPRIATED BY THE ACT OF JUNE 28, 1944, FOR TRAVELING EXPENSES ARE AVAILABLE FOR THE TRAVELING EXPENSES OF PERSONS OR ORGANIZATIONS EMPLOYED AND PAID COMPENSATION WITHOUT REGARD TO THE CIVIL SERVICE AND CLASSIFICATION LAWS PURSUANT TO THE SPECIAL ITEM IN SAID APPROPRIATION ACT PROVIDING A LIMITED SUM FOR THE TEMPORARY EMPLOYMENT OF PERSONS OR ORGANIZATIONS ON SUCH BASIS. ONLY IF PROVIDED FOR IN THEIR CONTRACTS OR AGREEMENTS OF EMPLOYMENT MAY COMMUTED RATES OF PER DIEM OR MILEAGE BE PAID TO PERSONS OR ORGANIZATIONS EMPLOYED BY THE OFFICE OF PRICE ADMINISTRATION, PURSUANT TO THE SPECIAL AUTHORIZATION IN THE ACT OF JUNE 28, 1944, WITHOUT REGARD TO THE CIVIL SERVICE AND CLASSIFICATION LAWS; OTHERWISE THEIR TRAVELING EXPENSES MUST BE REIMBURSED ON AN ACTUAL EXPENSE BASIS. IN THE CASE OF PERSONS OR ORGANIZATIONS EMPLOYED AND PAID BY THE OFFICE OF PRICE ADMINISTRATION PURSUANT TO THE SPECIAL AUTHORIZATION IN THE ACT OF JUNE 28, 1944, WITHOUT REGARD TO THE CIVIL SERVICE AND CLASSIFICATION LAWS, NO APPOINTMENTS OR OATHS OF OFFICE ARE REQUIRED, BUT THERE SHOULD BE A CONTRACT OR AGREEMENT IN WRITING IN ADVANCE TO CONSTITUTE A PROPER BASIS FOR PAYMENT OF COMPENSATION AND TRAVELING EXPENSES.

COMPTROLLER GENERAL WARREN TO THE PRICE ADMINISTRATOR, OFFICE OF PRICE ADMINISTRATION, AUGUST 21, 1944:

I HAVE YOUR LETTER OF AUGUST 5, 1944, AS FOLLOWS:

TO FACILITATE ENFORCEMENT OF PRICE CONTROL REGULATIONS IN THE LUMBER INDUSTRY, IT IS NECESSARY TO EMPLOY THE SERVICES OF INSPECTORS AS EXPERTS TO EXAMINE SHIPMENTS OF LUMBER WHEN A VIOLATION OF STANDARD REQUIREMENTS THROUGH UPGRADING IS REPORTED OR SUSPECTED. IT WOULD BE IMPRACTICAL AND UNECONOMICAL TO EMPLOY AND MAINTAIN A REGULAR STAFF OF SUCH INSPECTORS FOR EACH TYPE OF LUMBER BECAUSE OF THE UNCERTAINTY AS TO HOW OFTEN THEY WOULD BE NEEDED; ON ACCOUNT OF THE PROHIBITIVE TRAVELING EXPENSES TO COVER THE ENTIRE COUNTRY; THE NECESSITY THAT AN EXPERT FOR A PARTICULAR KIND OF LUMBER BE AVAILABLE FOR DUTY IMMEDIATELY AT ANY DESIGNATED LOCATION ON CALL; AND THE NECESSITY TO HAVE THE SERVICES OF RECOGNIZED EXPERTS WHOSE OPINIONS WOULD BE ACCEPTED BY COURTS AS EVIDENCE.

IT HAS BEEN DETERMINED THAT SUCH EXPERTS ARE NOT AVAILABLE FOR FEDERAL EMPLOYMENT OF UNCERTAIN TENURE DURING THE PERIOD OF EMERGENCY AND ARE IN AN EXCELLENT POSITION TO COMMAND HIGH FEES. MOREOVER, IT IS PARTICULARLY DESIRABLE TO OFFER AS EVIDENCE THE REPORTS OF EXPERT INSPECTORS WHO ARE NOT FEDERAL EMPLOYEES AS THEIR UNBIASED OPINIONS AS PRIVATE CITIZENS WOULD CARRY MORE WEIGHT IN COURT. FOR THESE REASONS, IT IS PROPOSED TO CONTRACT WITH VARIOUS LUMBERMEN'S INSPECTION ASSOCIATIONS FOR SERVICES OF EXPERT INSPECTORS IN THEIR EMPLOY. IT IS PROPOSED TO REIMBURSE THE ASSOCIATIONS OR THEIR EMPLOYEES FOR CERTAIN COMPENSATION FOR SERVICES, AND A COMMUTED PER DIEM AND MILEAGE FOR EXPENSES INCURRED BY THE INSPECTORS WHILE IN TRAVEL UNDER OFFICIAL ORDERS IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

ALSO, IN CONTRACTING WITH AN ADVERTISING FIRM FOR SUBCONTRACTING WITH VARIOUS ADVERTISING AGENCIES IN CONNECTION WITH PREPARATION OF FINISHED LAYOUT, ART WORK, LETTERING, ENGRAVING, COMPOSITION, ELECTROTYPES, PATTERN PLATES AND PROOFS IN PRODUCTION OF NEWSPAPER MATS, PAYMENT WILL BE REQUIRED FOR ACTUAL COSTS INCURRED. IT IS PROPOSED TO REIMBURSE THE CONTRACTOR ON A PER DIEM BASIS FOR SUBSISTENCE EXPENSES OF THE EXPERTS AND OTHER COMPANY EMPLOYEES, IN AUTHORIZED TRAVEL STATUS, WHO ARE CALLED TO WASHINGTON, D.C. FOR THE PURPOSE OF DISCUSSING TECHNICAL PROBLEMS DURING THE PROGRESS OF THE WORK.

A DECISION RENDERED BY YOUR OFFICE ON DECEMBER 9, 1933, (A-52029) 13 CG 167 INDICATED THAT THE SALARY RATES OF EXPERTS NOT EMPLOYED AS WITNESSES IN COURTS ARE REQUIRED TO BE FIXED IN ACCORDANCE WITH THE PRINCIPLES OF THE CLASSIFICATION ACT. THE APPROPRIATION ACT OF THE ADMINISTRATION FOR THE FISCAL YEAR 1945 INCLUDES AUTHORITY FOR EXPENDITURE OF LIMITED FUNDS FOR TEMPORARY EMPLOYMENT OF PERSONS OR ORGANIZATIONS, BY CONTRACT OR OTHERWISE, WITHOUT REGARD TO THE CIVIL SERVICE AND CLASSIFICATION LAWS. HOWEVER, IT IS DESIRED TO DEFRAY THE ABOVE EXPENSES FROM REGULAR APPROPRIATED FUNDS AS IT IS FELT THAT OUR PROGRAM WARRANTS AND ANTICIPATES THIS TYPE OF EXPENDITURE.

YOUR OPINION ON THE FOLLOWING ISSUES IS RESPECTFULLY REQUESTED:

1. ARE REGULAR FUNDS OF THE CURRENT APPROPRIATION OF THIS ADMINISTRATION AVAILABLE FOR REIMBURSEMENT TO COMMERCIAL ORGANIZATIONS OR INDIVIDUALS BY CONTRACT FOR SERVICE NOT AVAILABLE THROUGH GOVERNMENT FACILITIES.

(A) FOR COMPENSATION OF EXPERTS OR OTHER INDIVIDUALS FOR SERVICES OBTAINED WITHOUT REGARD TO THE CLASSIFICATION ACT WHEN SUCH SERVICES CANNOT BE SECURED THROUGH REGULAR EMPLOYMENT PROCEDURES? (16 CG 1055, 19 ID 941).

(B) FOR TRAVELING EXPENSES, AS AUTHORIZED, AT COMMUTED RATES OF PER DIEM AND MILEAGE?

2. WHERE PAYMENTS ARE MADE TO INDIVIDUALS IN THE CIRCUMSTANCES DESCRIBED ABOVE, FROM REGULAR FUNDS OR OTHERWISE, IS IT ESSENTIAL THAT FORMAL APPOINTMENT ACTION BE PROCESSED PRIOR TO RENDITION OF SERVICE AND OATH OF OFFICE BE EXECUTED PRIOR TO PAYMENT?

YOUR INTERPRETATION AND COMMENTS AT AN EARLY DATE WILL BE APPRECIATED.

IT IS UNDERSTOOD FROM YOUR LETTER THAT THE LUMBER INSPECTORS ARE TO BE EMPLOYED AND PAID TO PERFORM A REGULAR FUNCTION IMPOSED BY LAW UPON THE OFFICE OF PRICE ADMINISTRATION. THE WORK OF INSPECTORS FOR THE GOVERNMENT, EVEN WHEN PERFORMED UNDER AN APPROPRIATION FOR CONSTRUCTION WORK, HAS BEEN REGARDED AS A PERSONAL SERVICE. 16 COMP. GEN. 1055; 19 ID. 941. WHILE NOT ENTIRELY CLEAR, IT IS UNDERSTOOD THAT THE WORK REFERRED TO IN THE THIRD PARAGRAPH OF YOUR LETTER IS A PERSONAL SERVICE TO PERFORM A REGULAR FUNCTION IMPOSED BY LAW ON THE OFFICE OF PRICE ADMINISTRATION.

THE GENERAL RULE IS THAT IN THE ABSENCE OF STATUTORY EXEMPTION THE SALARY RATES OF PERSONNEL OF ALL FEDERAL AGENCIES ARE REQUIRED TO BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT AS AMENDED. SEE 14 COMP. GEN. 420; 16 ID 1107; 17 ID. 578; 18 ID. 223, 887; 19 ID. 20; 20 ID. 211; 22 ID 491. IN ADDITION TO SAID GENERAL RULE, REFERENCE IS MADE TO SECTION 921, TITLE 50, U.S.C. (SECTION 201 OF THE ACT OF JANUARY 30, 1942, 56 STAT. 29, ESTABLISHING THE OFFICE OF PRICE ADMINISTRATION), CONTAINING THE FOLLOWING PROVISION:

* * * THE ADMINISTRATOR MAY, SUBJECT TO THE CIVIL-SERVICE LAWS, APPOINT SUCH EMPLOYEES AS HE DEEMS NECESSARY IN ORDER TO CARRY OUT HIS FUNCTIONS AND DUTIES UNDER THIS ACT, AND SHALL FIX THEIR COMPENSATION IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED ( TITLE 5, SECS. 661-673, 674). * * *

THAT STATUTE CONSTITUTES A LEGISLATIVE MANDATE TO WHICH EXCEPTION MAY NOT BE MADE EXCEPT PURSUANT TO OTHER STATUTE. SUCH AN EXCEPTION IS FOUND IN THE CURRENT APPROPRIATION ACT FOR THE OFFICE OF PRICE ADMINISTRATION (" SECOND DEFICIENCY APPROPRIATION ACT, 1944," APPROVED JUNE 28, 1944, PUBLIC LAW 375), CONTAINING AN ITEM OF "NOT TO EXCEED $3 FOR THE TEMPORARY EMPLOYMENT OF PERSONS OR ORGANIZATIONS, BY CONTRACT OR OTHERWISE, WITHOUT REGARD TO SECTION 3709, REVISED STATUTES, OR THE CIVIL-SERVICE AND CLASSIFICATION LAWS.'

ACCORDINGLY, IN VIEW OF THE GENERAL RULE OF LONG STANDING AND, ALSO, THE LEGISLATIVE MANDATE IN THE BASIC STATUTE APPLICABLE TO THE OFFICE OF PRICE ADMINISTRATION, QUESTION 1 (A) MUST BE, AND IS, ANSWERED IN THE NEGATIVE, EXCEPT TO THE EXTENT THAT THE ITEM OF $30,000 IS AVAILABLE.

REFERRING TO QUESTION 1 (B), THE APPROPRIATION ITEM FOR "TRAVELING EXPENSES (NOT TO EXCEED $7,250,000)," APPEARING IN THE CURRENT APPROPRIATION ACT, MAY BE REGARDED AS AVAILABLE FOR ANY AUTHORIZED TRAVELING EXPENSES INCURRED BY THE OFFICE OF PRICE ADMINISTRATION, INCLUDING THE TRAVELING EXPENSES OF PERSONS OR ORGANIZATIONS EMPLOYED AND PAID COMPENSATION WITHOUT REGARD TO THE CIVIL SERVICE AND CLASSIFICATION LAWS PURSUANT TO THE SPECIAL AUTHORITY AND WITHIN THE LIMITATION OF THE ITEM OF $30,000 CONTAINED IN THE SAME APPROPRIATION ACT. COMMUTATION RATES OF PER DIEM AND MILEAGE MAY BE PAID TO SUCH PERSONS OR ORGANIZATIONS ONLY IF PROVIDED FOR IN THEIR CONTRACTS OR AGREEMENTS OF EMPLOYMENT; OTHERWISE TRAVELING EXPENSES MUST BE REIMBURSED TO THEM ON AN ACTUAL EXPENSE BASIS. SEE 21 COMP. GEN. 409, AND THE DECISIONS THEREIN CITED. COMPARE 20 COMP. GEN. 361, 363.

IF (AS IS UNDERSTOOD IN THE LIGHT OF THE ANSWER TO QUESTION 1 (A) ( QUESTION 2 RELATES ONLY TO PERSONS OR ORGANIZATIONS AUTHORIZED TO BE EMPLOYED AND PAID WITHOUT REGARD TO THE CIVIL SERVICE AND CLASSIFICATION LAWS PURSUANT TO THE SPECIAL AUTHORITY WITHIN THE LIMITATION OF THE ITEM OF $30,000, NO APPOINTMENTS OR OATHS OF OFFICE ARE REQUIRED, BUT THERE SHOULD BE A CONTRACT OR AGREEMENT IN WRITING IN ADVANCE TO CONSTITUTE A PROPER BASIS FOR PAYMENT OF COMPENSATION AND TRAVELING EXPENSES.

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