A-90753, AUGUST 26, 1939, 19 COMP. GEN. 287

A-90753, AUGUST 26, 1939, 19 COMP. GEN. 287

SAVINGS BOND ADVERTISING LITERATURE DESIGN - PROCUREMENT AS PERSONAL SERVICES AND WITHOUT ADVERTISING FOR BIDS WORK PREPARATORY TO THE OBTAINING OF DUMMY COPY FOR THE PROCUREMENT, BY COMPETITIVE BIDDING, OF ADVERTISING LITERATURE IN CONNECTION WITH THE SALE OF UNITED STATES SAVINGS BONDS--- SUCH AS ART WORK, COLOR SKETCHES, LETTERING, ETC.--- IS DEPENDENT UPON THE SKILL OR ARTISTIC ABILITY OF THE INDIVIDUAL WORKMAN AND INVOLVES PRIMARILY PERSONAL SERVICES, AND SUCH SERVICES MAY BE OBTAINED BY DIRECT HIRE OR CONTRACT WITHOUT RESORTING TO COMPETITION UNDER SECTION 3709, REVISED STATUTES, WHICH HAS NO APPLICATION TO PERSONAL SERVICES, BUT SUCH PROCUREMENT IS AUTHORIZED ONLY IF THERE ARE NO EMPLOYEES IN THE DEPARTMENT QUALIFIED FOR SUCH WORK AND ARE OBTAINABLE IN ACCORDANCE WITH CIVIL SERVICE RULES AND REGULATIONS. PROCEDURE FOR OBTAINING COMPETITION BY FIXING A PRICE AND INVITING INTERESTED PERSONS TO SUBMIT DESIGNS OR OUTLINES OF THE DUMMY COPY, WITH AWARD OF THE CONTRACT TO THE ONE SUBMITTING THE BEST DESIGN OR OUTLINE, INSTEAD OF SOLICITATION OF LOW BIDS, SUGGESTED FOR ADMINISTRATIVE CONSIDERATION.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF THE TREASURY, AUGUST 26, 1939:

I HAVE YOUR LETTER OF AUGUST 2, 1939, AS FOLLOWS:

YOUR DECISION DATED JULY 12, 1939, A-90753, WITH REGARD TO PAYMENTS MADE TO THE FEDERAL RESERVE BANK AT NEW YORK IN REIMBURSEMENT OF EXPENSES INCURRED IN THE PROCUREMENT OF MATERIALS REQUIRED IN CONNECTION WITH THE ADVERTISEMENT AND SALE OF UNITED STATES SAVINGS BONDS, HAS BEEN RECEIVED.

THE CONSIDERATION WHICH YOU HAVE GIVEN THE MATTER IS APPRECIATED, AND HEREAFTER THE PROCUREMENT OF SUCH MATERIALS WILL BE MADE IN ACCORDANCE WITH THE REQUIREMENTS REFERRED TO IN YOUR LETTER. THERE IS FOR CONSIDERATION, HOWEVER, THE MATTER OF COMMITMENTS MADE ON SUCH ACCOUNT PRIOR TO THE RECEIPT OF YOUR DECISION. THERE ARE OUTSTANDING OBLIGATIONS APPROXIMATING $50,000 IN PURCHASE ORDERS PLACED PRIOR TO JULY 1, 1939, ON WHICH PARTIAL DELIVERIES HAVE BEEN MADE AND ACCEPTED. IN YOUR LETTER YOU STATE THAT PAYMENTS FOR SUCH SUPPLIES AND SERVICES HERETOFORE PROCURED WILL NOT BE FURTHER QUESTIONED, BUT CREDIT WILL NOT BE ALLOWED FOR PAYMENTS FOR SUCH SUPPLIES OR SERVICES HEREAFTER PROCURED UNLESS SUCH PROCUREMENTS ARE MADE IN ACCORDANCE WITH THE STATUTORY REQUIREMENTS. YOUR ADVICE IS REQUESTED AS TO WHETHER THIS MAY BE INTERPRETED AS APPROVING OTHERWISE PROPER PAYMENTS MADE SUBSEQUENT TO JULY 12, 1939, THE DATE OF YOUR LETTER, AGAINST COMMITMENTS MADE PRIOR TO THAT DATE.

ANOTHER MATTER ON WHICH YOUR ADVICE IS REQUESTED IS THAT OF PREPARATORY COSTS, SUCH AS ART WORK AND COMPOSITION INCLUDING COLOR SKETCHES, LETTERING, ARRANGEMENT, AND PHOTOPRINTS; IN BRIEF, THE PREPARATION OF DUMMY COPY NECESSARY BEFORE BIDS CAN BE OBTAINED FOR THE PROCUREMENT OF ADVERTISING LITERATURE, ETC. ALL OF SUCH WORK IS IN THE NATURE OF SPECIALIZED SERVICES AND IT APPEARS IMPRACTICABLE TO OBTAIN SUCH SERVICES ON A COMPETITIVE BASIS. WILL YOU PLEASE ADVISE ME WHETHER IN THESE CIRCUMSTANCES THE PREPARATORY COMPOSITION FOR THIS LITERATURE MAY BE PROCURED WITHOUT COMPLIANCE WITH THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, REGARDING ADVERTISING FOR PROPOSALS.

IN VIEW OF ALL THE FACTS AND CIRCUMSTANCES APPEARING, THE QUESTION STATED IN THE LAST SENTENCE OF THE SECOND PARAGRAPH OF YOUR LETTER, SUPRA, IS ANSWERED IN THE AFFIRMATIVE.

WITH RESPECT TO THE MATTER SET FORTH IN THE LAST PARAGRAPH OF THE LETTER, IT MAY BE STATED THAT SINCE THE VALUE OF THE PREPARATORY WORK, SUCH AS ART WORK, COLOR SKETCHES, LETTERING, ETC., IS DEPENDENT UPON THE SKILL OR ARTISTIC ABILITY OF THE INDIVIDUAL WORKMAN, AND INVOLVES PRIMARILY PERSONAL SERVICES, SUCH WORK WOULD APPEAR TO BE FOR PERFORMANCE BY REGULAR OR TEMPORARY EMPLOYEES OF YOUR DEPARTMENT. IF THERE ARE NO EMPLOYEES IN YOUR DEPARTMENT QUALIFIED FOR SUCH WORK AND NONE ARE OBTAINABLE IN ACCORDANCE WITH CIVIL SERVICE RULES AND REGULATIONS, SUCH SERVICES MAY BE ENGAGED BY DIRECT HIRE OR CONTRACT WITHOUT RESORTING TO COMPETITION UNDER SECTION 3709, REVISED STATUTES, AS PERSONAL SERVICES ARE EXCEPTED FROM THE REQUIREMENTS OF THAT SECTION. HOWEVER, THERE MIGHT BE FOR ADMINISTRATIVE CONSIDERATION WHETHER IT WOULD BE PRACTICABLE TO OBTAIN COMPETITION FOR THIS WORK NOT BY THE SOLICITATION OF LOW BIDS BUT BY FIXING A PRICE AND INVITING INTERESTED PERSONS TO SUBMIT DESIGNS OR OUTLINES OF THE DUMMY COPY THEY COULD FURNISH FOR SUCH FIXED PRICE, THE CONTRACT TO BE AWARDED TO THE ONE SUBMITTING THE BEST DESIGN OR OUTLINE. SEE 18 COMP. GEN. 862.