B-161835, JUL. 20, 1967

B-161835, JUL. 20, 1967

EXPERTS AND CONSULTANTS - CONSULTING FIRM CONTRACTS DECISION TO NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS RE EMPLOYMENT OF WEST PUBLISHING CO. AND EDWARD THOMPSON CO. UNDER PUBLIC LAW 89-801. IF SERVICES ARE NECESSARY AND CAN NOT BE PERFORMED BY EMPLOYEES NO OBJECTION TO PROPOSED CONTRACT IS SEEN. ALSO SINCE SERVICES ARE FOR NONPERSONAL SERVICES, $75 LIMITATION ON SERVICES DOES NOT APPLY.

TO MR. JOHN W. DEAN III, ASSOCIATE DIRECTOR, NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, C/O COMMITTEE ON THE JUDICIARY, U. S. HOUSE OF REPRESENTATIVES:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 16, 1967, REQUESTING OUR DECISION AS TO THE AUTHORITY OF THE NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS TO EMPLOY THE EXPERTISE OF PRIVATE CORPORATIONS SUCH AS THE WEST PUBLISHING COMPANY AND THE EDWARD THOMPSON COMPANY PURSUANT TO THE PERFORMANCE OF ITS DUTIES UNDER SECTION 3 OF PUB. L. 89-801.

SECTION 3 OF PUB. L. 89-801, APPROVED NOVEMBER 8, 1966, SETS FORTH THE DUTIES OF THE COMMISSION AS FOLLOWS:

"THE COMMISSION SHALL MAKE A FULL AND COMPLETE REVIEW AND STUDY OF THE STATUTORY AND CASE LAW OF THE UNITED STATES WHICH CONSTITUTES THE FEDERAL SYSTEM OF CRIMINAL JUSTICE FOR THE PURPOSE OF FORMULATING AND RECOMMENDING TO THE CONGRESS LEGISLATION WHICH WOULD IMPROVE THE FEDERAL SYSTEM OF CRIMINAL JUSTICE. IT SHALL BE THE FURTHER DUTY OF THE COMMISSION TO MAKE RECOMMENDATIONS FOR REVISION AND RECODIFICATION OF THE CRIMINAL LAWS OF THE UNITED STATES, INCLUDING THE REPEAL OF UNNECESSARY OR UNDESIRABLE STATUTES AND SUCH CHANGES IN THE PENALTY STRUCTURE AS THE COMMISSION MAY FEEL WILL BETTER SERVE THE ENDS OF JUSTICE;,

WITH RESPECT TO THE SERVICES OF EXPERTS AND CONSULTANTS, SECTION 5 (D) OF PUB. L. 89-801 PROVIDES:

"THE CHAIRMAN OF THE COMMISSION IS AUTHORIZED TO PROCURE SERVICES TO THE SAME EXTENT AS IS AUTHORIZED FOR DEPARTMENTS BY SECTION 15 OF THE ACT OF AUGUST 2, 1946 (5 U.S.C. 55A), AT RATES NOT TO EXCEED $75 PER DIEM FOR INDIVIDUALS;,

SECTION 15 OF THE ACT OF AUGUST 2, 1946, REFERRED TO ABOVE, IS NOW CODIFIED AT 5 U.S.C. 3109 AND PROVIDES, IN PART, AS FOLLOWS:

"/B) WHEN AUTHORIZED BY AN APPROPRIATION OR OTHER STATUTE, THE HEAD OF AN AGENCY MAY PROCURE BY CONTRACT THE TEMPORARY (NOT IN EXCESS OF 1 YEAR) OR INTERMITTENT SERVICES OF EXPERTS OR CONSULTANTS OR AN ORGANIZATION THEREOF, INCLUDING STENOGRAPHIC REPORTING SERVICES. SERVICES PROCURED UNDER THIS SECTION ARE WITHOUT REGARD TO---

"/1) THE PROVISIONS OF THIS TITLE GOVERNING APPOINTMENT IN THE COMPETITIVE SERVICE;

"/2) CHAPTER 51 AND SUBCHAPTER III OF CHAPTER 53 OF THIS TITLE; AND

"/3) SECTION 5 OF TITLE 41, EXCEPT IN THE CASE OF STENOGRAPHIC REPORTING SERVICES BY AN ORGANIZATION. HOWEVER, AN AGENCY SUBJECT TO CHAPTER 51 AND SUBCHAPTER III OF CHAPTER 53 OF THIS TITLE MAY PAY A RATE FOR SERVICES UNDER THIS SECTION IN EXCESS OF THE DAILY EQUIVALENT OF THE HIGHEST RATE PAYABLE UNDER SECTION 5332 OF THIS TITLE ONLY WHEN SPECIFICALLY AUTHORIZED BY THE APPROPRIATION OR OTHER STATUTE AUTHORIZING THE PROCUREMENT OF THE SERVICES;,

THE ABOVE-QUOTED PROVISIONS CONSTITUTE THE BASIC GENERAL AUTHORITY TO PROCURE BY CONTRACT, WITHOUT ADVERTISING, THE SERVICES OF INDIVIDUALS AND ORGANIZATIONS OF EXPERTS AND CONSULTANTS. THE UTILIZATION OF THE AUTHORITY SO GRANTED IS INTENDED FOR AND LIMITED TO THE FURTHERANCE OF AUTHORIZED AGENCY FUNCTIONS.

WITHOUT MORE INFORMATION AS TO THE NATURE OF THE SERVICES TO BE PROCURED, WE ARE UNABLE TO FURNISH YOU WITH SPECIFIC ADVICE ON THE MATTER. HOWEVER, WE MAY SAY GENERALLY THAT IF THE COMMISSION DETERMINES THAT THE EXPERT OR CONSULTANT SERVICES INVOLVED ARE NECESSARY FOR THE PERFORMANCE OF THE COMMISSION'S FUNCTIONS AND THAT SUCH SERVICES CANNOT BE ADEQUATELY PERFORMED BY THE MEMBERS OR EMPLOYEES OF THE COMMISSION OR BY EMPLOYEES OF OTHER GOVERNMENT DEPARTMENTS OR AGENCIES (SEE SECTION 7 OF PUB. L. 89-801) WE WOULD HAVE NO OBJECTION TO THE PROPOSED CONTRACTS. SEE 36 COMP. GEN. 338.

WITH RESPECT TO THE $75 COMPENSATION LIMITATION PRESCRIBED BY SECTION 5 (D) OF PUB. L. 89-801, YOU ARE ADVISED THAT SUCH LIMITATION IS NOT FOR APPLICATION IN THE CASE OF FIRMS OR ORGANIZATIONS WHEN THE SERVICE CONTRACTED FOR CLEARLY IS OF A NONPERSONAL NATURE. RATHER, SUCH LIMITATION APPLIES EXCLUSIVELY TO THE TYPE OF INDIVIDUAL SERVICES OF A PURELY PERSONAL NATURE (EMPLOYER-EMPLOYEE RELATIONSHIP) SUCH AS CONTEMPLATED BY CHAPTER 51 OF TITLE 5, UNITED STATES CODE. SEE 26 COMP. GEN. 188.

WE TRUST THAT THE ABOVE INFORMATION SERVES THE PURPOSE OF YOUR INQUIRY. WE SHALL BE PLEASED TO FURNISH YOU ADDITIONAL INFORMATION IF SO REQUESTED.