A-86440, JUNE 2, 1937, 16 COMP. GEN. 1049

A-86440: Jun 2, 1937

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CONTRACTS - COMMERCIAL MESSENGER SERVICE - NEED ARISING SUBSEQUENT TO OFFICIAL OFFICE HOURS THERE IS NO LEGAL AUTHORITY FOR PROCUREMENT BY THE SOCIAL SECURITY BOARD OF COMMERCIAL MESSENGER SERVICE. NOTWITHSTANDING THE SERVICE IS FOR PERFORMANCE AFTER OFFICIAL OFFICE HOURS. IS AS FOLLOWS: IN CONNECTION WITH RELEASE BY THE SOCIAL SECURITY BOARD OF IMPORTANT INFORMATION FOR USE BY PRESS ASSOCIATIONS. MESSENGERS REGULARLY EMPLOYED BY THE BOARD ARE SELDOM AVAILABLE. IT IS PROPOSED TO MAKE ARRANGEMENTS ALONG THESE LINES AT A TOTAL COST OF NOT MORE THAN $10 PER MONTH IN ANY EVENT. MONTHLY VOUCHERS RENDERED BY THE VENDORS WILL BE SUPPORTED BY REFERENCE TO THIS LETTER AS JUSTIFICATION FOR THE EMERGENCY CAUSING THE EXPENSE.

A-86440, JUNE 2, 1937, 16 COMP. GEN. 1049

CONTRACTS - COMMERCIAL MESSENGER SERVICE - NEED ARISING SUBSEQUENT TO OFFICIAL OFFICE HOURS THERE IS NO LEGAL AUTHORITY FOR PROCUREMENT BY THE SOCIAL SECURITY BOARD OF COMMERCIAL MESSENGER SERVICE, NOTWITHSTANDING THE SERVICE IS FOR PERFORMANCE AFTER OFFICIAL OFFICE HOURS, BUT MESSENGER PERSONNEL OF THE BOARD, PAID ON AN ANNUAL BASIS, MAY BE REQUIRED TO REMAIN ON DUTY BEYOND THE REGULAR CLOSING TIME, OR THEIR TOUR OF DUTY FIXED, BY ROTATION OR OTHERWISE, TO INCLUDE ANY HOURS OF THE DAY OR NIGHT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, SOCIAL SECURITY BOARD, JUNE 2, 1937:

YOUR LETTER OF MAY 21, 1937, IS AS FOLLOWS:

IN CONNECTION WITH RELEASE BY THE SOCIAL SECURITY BOARD OF IMPORTANT INFORMATION FOR USE BY PRESS ASSOCIATIONS, LEGISLATIVE COMMITTEES, AND SIMILAR ORGANIZATIONS, THERE SOMETIMES ARISES A NEED FOR EMERGENCY MESSENGER SERVICE AFTER OFFICIAL OFFICE HOURS, WHICH IT HAS BEEN IMPOSSIBLE TO FORESEE OR CONTROL. AT SUCH TIMES, MESSENGERS REGULARLY EMPLOYED BY THE BOARD ARE SELDOM AVAILABLE, AND, ACCORDINGLY, IT BECOMES NECESSARY TO DETAIL A HIGHER-GRADE EMPLOYEE, WHO CAN BE BUT ILL-SPARED AT THE MOMENT, TO PERFORM THIS SERVICE.

AT SUCH TIMES, IT WOULD BE DESIRABLE TO MAKE USE OF THE MESSENGER SERVICES AVAILABLE FROM SUCH COMMERCIAL SOURCES AS WESTERN UNION OR POSTAL TELEGRAPH, AND, THEREFORE, IT IS PROPOSED TO MAKE ARRANGEMENTS ALONG THESE LINES AT A TOTAL COST OF NOT MORE THAN $10 PER MONTH IN ANY EVENT. MONTHLY VOUCHERS RENDERED BY THE VENDORS WILL BE SUPPORTED BY REFERENCE TO THIS LETTER AS JUSTIFICATION FOR THE EMERGENCY CAUSING THE EXPENSE.

MESSENGER SERVICE IS A PERSONAL SERVICE. THE SETTLED RULE IS THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, PERSONAL SERVICES FOR A FEDERAL AGENCY ARE REQUIRED TO BE PERFORMED BY THE PERSONNEL OF THAT FEDERAL AGENCY. SINCE UNDER SECTION 703 OF THE SOCIAL SECURITY ACT OF AUGUST 14, 1935, 49 STAT. 636, THE ONLY EXCEPTION MADE TO THE CIVIL SERVICE LAWS APPLIES TO THE APPOINTMENTS OF ATTORNEYS AND EXPERTS, IT FOLLOWS THAT MESSENGERS ARE REQUIRED TO BE APPOINTED IN ACCORDANCE WITH THE CIVIL- SERVICE LAWS AND REGULATIONS, AND ARE REQUIRED TO BE COMPENSATED IN ACCORDANCE WITH THE CLASSIFICATION ACT, AS AMENDED. THERE IS NO SPECIFIC PROVISION EITHER IN THE SOCIAL SECURITY ACT, SUPRA, OR IN THE APPROPRIATION ACT OF JUNE 22, 1936, 49 STAT. 1604, AUTHORIZING THE EMPLOYMENT OF MESSENGER SERVICE ON A NON-PERSONAL SERVICE BASIS BY CONTRACT WITH AN OUTSIDE ORGANIZATION OR OTHERWISE, AS PROPOSED IN YOUR LETTER. THE FACT THAT THE LATTER STATUTE CONTAINS A SPECIFIC AUTHORIZATION FOR "EMPLOYING PERSONS OR ORGANIZATIONS, BY CONTRACT OR OTHERWISE, FOR SPECIAL ACCOUNTING, ACTUARIAL, STATISTICAL, AND REPORTING SERVICES" SHOWS CLEARLY THAT SUCH BASIS OF EMPLOYMENT IS NOT AUTHORIZED FOR OTHER CLASSES OF PERSONAL SERVICE, INCLUDING MESSENGERS.

ACCORDINGLY, YOUR QUESTION MUST BE, AND IS, ANSWERED IN THE NEGATIVE.

IT WOULD APPEAR THAT THE ADMINISTRATIVE PROBLEM PRESENTED IN YOUR LETTER MIGHT BE SOLVED, AS IS DONE IN OTHER FEDERAL AGENCIES, BY RETAINING A MESSENGER ON DUTY AFTER REGULAR OFFICE HOURS DURING THE TIME HIS SERVICE MAY BE REQUIRED WHILE AN OFFICIAL REMAINS ON DUTY. THERE IS NO PROHIBITION OF LAW AGAINST REQUIRING MESSENGERS, WHO ARE PAID ON AN ANNUAL BASIS, TO REMAIN ON DUTY BEYOND THE REGULAR CLOSING TIME OR TO FIXING THE TOUR OF DUTY OF INDIVIDUAL MESSENGERS, OR OF A FORCE OF MESSENGERS BY ROTATION, TO INCLUDE ANY HOURS OF THE DAY OR NIGHT.