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A-11609, FEBRUARY 15, 1926, 5 COMP. GEN. 629

A-11609 Feb 15, 1926
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1926: RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF JANUARY 25. I HAVE NEITHER REASON NOR DISPOSITION TO DOUBT YOUR REPRESENTATIONS AS TO THE DIFFICULTIES INVOLVED IN THE PROJECT AND THE NEED FOR THE HIGHEST CLASS OF ARCHITECTURAL AND ENGINEERING SERVICES AVAILABLE. THE TENOR OF YOUR MEMORANDUM ACCOMPANYING YOUR REQUEST FOR RECONSIDERATION WOULD INDICATE THAT YOU HAVE NOT UNDERSTOOD THE FULL PURPORT OF THE PRIMARY OBJECTION TO THE CONTRACTS IN QUESTION AS STATED ON PAGE 9 OF THE DECISION. ARE ESSENTIALLY PERSONAL SERVICES. THIS IS VIRTUALLY ADMITTED IN PARAGRAPH 11 OF YOUR MEMORANDUM IN WHICH YOU STATED: VERY CAREFUL CONSIDERATION HAS BEEN GIVEN THE QUESTION OF "PRESCRIBING A STANDARD OR BASIS BY WHICH THE SUFFICIENCY AS TO CHARACTER OR EXTENT OF SERVICES REQUIRED MAY BE DETERMINED.'.

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A-11609, FEBRUARY 15, 1926, 5 COMP. GEN. 629

ARLINGTON MEMORIAL BRIDGE COMMISSION - CONTRACTING FOR PERSONAL SERVICES THE PERSONAL SERVICES OF ARCHITECTS AND CONSULTING ENGINEERS MAY NOT BE OBTAINED BY CONTRACTING WITH A FIRM OR OTHER AGENCY TO SUPPLY THE SERVICES ON A COST-PLUS OR OTHER BASIS. SUCH SERVICES MAY BE OBTAINED ONLY BY DIRECT EMPLOYMENT, CONSTITUTING THEM EMPLOYEES OF THE UNITED STATES SUBJECT TO THE STATUTORY LIMITATIONS ON TRAVELING EXPENSES. 5 COMP. GEN. 450, AFFIRMED.

COMPTROLLER GENERAL MCCARL TO MAJ. U. S. GRANT, EXECUTIVE AND DISBURSING OFFICER, ARLINGTON MEMORIAL BRIDGE COMMISSION, FEBRUARY 15, 1926:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF JANUARY 25, 1926, REQUESTING RECONSIDERATION OF MY DECISION OF DECEMBER 31, 1925, 5 COMP. GEN. 450, RENDERED ON A QUESTION SUBMITTED BY YOUR PREDECESSOR IN OFFICE, WITH RESPECT TO THE CONTRACTS FOR ARCHITECTURAL AND CONSULTING ENGINEERING SERVICES IN CONNECTION WITH THE ARLINGTON MEMORIAL BRIDGE.

I HAVE NEITHER REASON NOR DISPOSITION TO DOUBT YOUR REPRESENTATIONS AS TO THE DIFFICULTIES INVOLVED IN THE PROJECT AND THE NEED FOR THE HIGHEST CLASS OF ARCHITECTURAL AND ENGINEERING SERVICES AVAILABLE, AND I NOTE YOUR AGREEMENT TO OBTAIN A REVISION OF THE RESPECTIVE CONTRACTS IN VARIOUS MINOR PARTICULARS OBJECTED TO IN MY PREVIOUS DECISION. HOWEVER, THE TENOR OF YOUR MEMORANDUM ACCOMPANYING YOUR REQUEST FOR RECONSIDERATION WOULD INDICATE THAT YOU HAVE NOT UNDERSTOOD THE FULL PURPORT OF THE PRIMARY OBJECTION TO THE CONTRACTS IN QUESTION AS STATED ON PAGE 9 OF THE DECISION.

THE SERVICES OF ARCHITECTS AND CONSULTING ENGINEERS AND ASSISTANTS, IN THE CAPACITY IN WHICH YOUR COMMISSION PROPOSES TO UTILIZE THEM, ARE ESSENTIALLY PERSONAL SERVICES. THIS IS VIRTUALLY ADMITTED IN PARAGRAPH 11 OF YOUR MEMORANDUM IN WHICH YOU STATED:

VERY CAREFUL CONSIDERATION HAS BEEN GIVEN THE QUESTION OF "PRESCRIBING A STANDARD OR BASIS BY WHICH THE SUFFICIENCY AS TO CHARACTER OR EXTENT OF SERVICES REQUIRED MAY BE DETERMINED.' IT IS BELIEVED TO BE IMPRACTICABLE TO DO THIS. THERE IS NO YARDSTICK BY WHICH ARTISTIC OR HIGHLY TECHNICAL PROFESSIONAL SERVICES CAN BE MEASURED. THIS IS TRUE OF ARCHITECTS AND ENGINEERS AS IT IS OF PAINTERS AND LAWYERS. SUCH SERVICES ARE EITHER SATISFACTORY AND SUFFICIENT, OR UNSATISFACTORY AND UNACCEPTABLE. * * *

TAKING THIS INTO CONSIDERATION, TOGETHER WITH THE AUTHORITY IN THE ACT OF FEBRUARY 24, 1925, 43 STAT. 974,"TO EMPLOY" SUCH SERVICES, IT IS EVIDENT THAT THE LAW CONTEMPLATES A DIRECT EMPLOYMENT OF EACH AND EVERY PERSON TO BE ENGAGED ON THAT PARTICULAR CLASS OF WORK AND DOES NOT CONTEMPLATE NOR AUTHORIZE AN AGREEMENT OR CONTRACT WITH AN OUTSIDE AGENCY TO FURNISH SUCH SERVICES ON A COST-PLUS OR OTHER BASIS. IN OTHER WORDS, THE PERSONS ENGAGED BY THE COMMISSION TO PERFORM SUCH PERSONAL SERVICES--- AS DISTINGUISHED FROM SERVICES INCIDENT TO THE ACCOMPLISHMENT OF A SPECIFIC OBJECT OR WORK THE CHARACTER AND EXTENT OF WHICH CAN BE CLEARLY DEFINED AND MEASURED--- MUST, WHILE PERFORMING SUCH SERVICES, BE EMPLOYEES OF THE GOVERNMENT. THE EMPLOYMENT OF SUCH SERVICES MAY BE BY APPOINTMENT OR BY CONTRACT OF EMPLOYMENT ENTERED INTO DIRECTLY BETWEEN THE CONTRACTING OFFICER AND THE PERSON TO BE EMPLOYED AND MAY BE FOR EITHER PART TIME OR WHOLE TIME EMPLOYMENT AS THE NECESSITIES OF THE CASE MAY REQUIRE, THE SERVICES TO BE RENDERED TO THE SATISFACTION OF THE COMMISSION OR ITS EXECUTIVE OFFICER. UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF FEBRUARY 24, 1925, THERE IS AUTHORIZED TO BE EMPLOYED "WITHOUT REFERENCE TO CIVIL SERVICE REQUIREMENTS AND AT RATES OF PAY AUTHORIZED BY SAID COMMISSION," SUCH NUMBER OF ARCHITECTS, ENGINEERS, ETC., AND FOR SUCH PERIODS OF TIME, AS MAY BE FOUND NECESSARY FROM TIME TO TIME. BUT THE LAW DOES NOT AUTHORIZE CONTRACTING WITH A FIRM TO FURNISH SUCH SERVICES. THE FACT THAT AN ARCHITECT OR ENGINEER OR OTHER PERSON WHOSE SERVICES MAY BE DESIRED IS A MEMBER OF OR CONNECTED WITH A FIRM WOULD NOT PRECLUDE THE COMMISSION FROM ENGAGING HIS SERVICES AS AN INDIVIDUAL FOR SUCH PERIOD AS MAY BE REQUIRED. THE HEADQUARTERS OF ALL SUCH EMPLOYEES WOULD BE WASHINGTON, D.C., WHERE THE WORK IS TO BE PERFORMED AND THE COMMISSION IS LOCATED, AND THEY WOULD BE LIMITED IN THE MATTER OF TRAVELING AND SUBSISTENCE EXPENSES BY THE ACTS OF MARCH 3, 1875, 18 STAT. 452; APRIL 6, 1914, 38 STAT. 318, AND AUGUST 1, 1914, 38 STAT. 680, AND THE EXPENSES AUTHORIZED UNDER SAID ACTS WILL BE ALLOWABLE ONLY WITH RESPECT TO NECESSARY AND AUTHORIZED TRAVEL AWAY FROM SUCH HEADQUARTERS ON OFFICIAL BUSINESS.

UNLESS AND UNTIL THE CONTRACTS ARE CHANGED IN ACCORDANCE WITH THE PRINCIPLES HEREINBEFORE STATED, FURTHER DISCUSSION OF THE OTHER OBJECTIONABLE FEATURES OF THE CONTRACTS WOULD APPEAR TO SERVE NO USEFUL PURPOSE.

THE CONTRACTS, IN THEIR PRESENT FORM, MAY NOT BE ACCEPTED AS AUTHORIZING, OR FORMING A PROPER BASIS FOR ANY PAYMENTS UNDER THE APPROPRIATION INVOLVED.

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