B-155365, OCT. 28, 1964

B-155365, OCT. 28, 1964

TO MR. G. T. SMITH, CONTRACTING OFFICER, CHIEF, BRANCH OF PROCUREMENT MANAGEMENT, UNITED STATES DEPARTMENT OF AGRICULTURE:

ON OCTOBER 9, 1964, REFERENCE 6320, YOU REQUESTED OUR DECISION CONCERNING THE LEGALITY OF A PROPOSED AWARD OF A NONPERSONAL SERVICE CONTRACT TO TWO RETIRED EMPLOYEES OF THE FOREST SERVICE FOR A STUDY OF THE SPECIAL USE COMMERCIAL PUBLIC SERVICE FEE STRUCTURE.

THE WORK COVERED BY THE PROPOSED CONTRACT IS REQUIRED ONLY PERIODICALLY, THE LAST STUDY HAVING BEEN PERFORMED IN 1950 BY EMPLOYEES OF THE FOREST SERVICE. THE STUDY WILL REQUIRE APPROXIMATELY ONE MAN YEAR TO PERFORM. WHILE THE WORK COULD AGAIN BE DONE BY EMPLOYEES, THOSE EMPLOYEES COMPETENT TO DO THE WORK ARE SAID TO BE LIMITED IN NUMBER AND ARE FULLY OCCUPIED BY OTHER DUTIES. ALSO, WE UNDERSTAND THAT IT WOULD BE DIFFICULT TO OBTAIN OR HIRE EMPLOYEES TO DO THE WORK. THE RECORD SHOWS THAT THE RESULTS OF THE STUDY ARE URGENTLY NEEDED, AND THAT THE LIMITATION ON USE OF FOREST SERVICE APPROPRIATIONS FOR CONTRACTING PERSONAL SERVICES FOR FISCAL YEAR 1965 HAS ALREADY BEEN USED OR AUTHORIZED FOR USE ON OTHER CONTRACTS. WAS FELT THAT CONSIDERABLE TIME AND MONEY WOULD BE SAVED BY CONTRACTING WITH PERSONS FAMILIAR WITH THE AREA COVERED BY THE STUDY. KNOWING OF NO SPECIFIC QUALIFIED CONSULTING FIRMS, QUALIFIED INDIVIDUALS WERE CONSIDERED.

IT IS PROPOSED TO CONTRACT FOR A FIXED FEE FOR THE STUDY AND REPORT, WITH THE CONTRACT TO BE PERFORMED INDEPENDENTLY WITHOUT SUPERVISION. THE GOVERNMENT PROPOSES TO FURNISH OFFICE SPACE, EQUIPMENT, SUPPLIES, STENOGRAPHIC AND TYPING SERVICES REQUIRED BY THE CONTRACTORS WHILE WORKING IN THE WASHINGTON OFFICE, REGIONAL OFFICES, FOREST SUPERVISOR OFFICES AND FOREST RANGER OFFICES. THE MAXIMUM FEE CONTEMPLATED HAS BEEN DETERMINED ON THE BASIS OF THE ESTIMATED TIME FOR PERFORMANCE AND COST OF TRAVEL, WITH CONSIDERATION BEING GIVEN TO THE VALUE OF THE ITEMS PROPOSED TO BE FURNISHED BY THE GOVERNMENT. THE PROPOSED CONTRACTORS ARE BOTH FORMER EMPLOYEES OF THE FOREST SERVICE, NOW RETIRED.

FACTORS TO BE CONSIDERED IN DETERMINING WHETHER SERVICES CONSTITUTE PERSONAL SERVICES ARE, AS STATED IN 26 COMP. GEN. 468, 469, THE DEGREE OF GOVERNMENT SUPERVISION OVER THE SERVICES PERFORMED, THE FURNISHING OF EQUIPMENT AND SUPPLIES TO PERFORM THE SERVICES, THE FURNISHING OF OFFICE OR WORKING SPACE, THE USE OF SPECIAL KNOWLEDGE OR EQUIPMENT, THE TEMPORARY CHARACTER OF SERVICES WHICH NO GOVERNMENT EMPLOYEE IS QUALIFIED OR AVAILABLE TO PERFORM, ETC., AND WHETHER THE FEE OR THE AMOUNT OF THE CONTRACT PRICE IS BASED UPON THE RESULTS TO BE ACCOMPLISHED RATHER THAN THE TIME ACTUALLY WORKED, AND WHETHER THE AMOUNT PAID AS COMPENSATION COVERS NOT ONLY THE CONTRACTOR'S TIME BUT THE USE OF HIS FACILITIES, OFFICE STAFF, EQUIPMENT, ETC.

HERE, WHILE THE GOVERNMENT PROPOSES TO FURNISH OFFICE SPACE, SUPPLIES, ETC., THE PRICE PROPOSED FOR THE STUDY IS A LUMP-SUM PRICE, PAYABLE REGARDLESS OF THE AMOUNT OF TIME THAT ACTUALLY WILL RESULT IN BEING NEEDED TO MAKE THE STUDY AND REPORT. ALSO, NO GOVERNMENT SUPERVISION OVER THE SERVICES IS CONTEMPLATED. IN ADDITION, THE STUDY AND REPORT ARE ONLY PERIODICALLY REQUIRED AND COMPRISE A DEFINITE LIMITED SERVICE. THEREFORE, WE FEEL THAT THE PROPOSED CONDITIONS OF THE CONTRACT AND CIRCUMSTANCES OF PERFORMANCE AS DESCRIBED ARE SUFFICIENT, IF AWARDED AND PERFORMED AS PROPOSED, TO ESTABLISH THAT AN INDEPENDENT CONTRACT (NONPERSONAL SERVICE) RELATIONSHIP AS OPPOSED TO AN EMPLOYER-EMPLOYEE (PERSONAL SERVICE) RELATIONSHIP IS INTENDED, AND, IN FACT, CREATED BY THE CONTRACT. IN VIEW OF THESE FACTORS, THE URGENT NECESSITY FOR THE STUDY, AND THE FACT THAT PRESENT EMPLOYEES ARE NOT READILY AVAILABLE TO PERFORM THIS WORK, NOR CAN PERSONS BE READILY EMPLOYED TO DO IT, WE WILL NOT OBJECT TO THE OBTAINING OF THE STUDY AND REPORT IN THIS PARTICULAR INSTANCE BY AWARD OF A NONPERSONAL SERVICE CONTRACT, SUCH AS THAT PROPOSED, UNDER YOUR REGULAR CONTRACT AUTHORITY.