B-21497, OCTOBER 31, 1941, 21 COMP. GEN. 400

B-21497, OCTOBER 31, 1941, 21 COMP. GEN. 400

PERSONAL SERVICES - PRIVATE CONTRACT V. GOVERNMENT PERSONNEL - TABULATING SERVICES WHERE NEITHER THE BASIC LEGISLATION NOR THE APPROPRIATION MADE TO CARRY OUT ITS PURPOSES EXPRESSLY, NOR BY NECESSARY IMPLICATION, REQUIRES THAT CERTAIN WORK BE PERFORMED BY THE PERSONNEL OF THE PARTICULAR AGENCY FOR WHICH THE FUNDS ARE APPROPRIATED AND IT DEVELOPS THAT IT WOULD BE IMPOSSIBLE OR IMPRACTICABLE TO HAVE THE WORK PERFORMED BY THE EMPLOYEES OF THAT AGENCY, THE GENERAL ACCOUNTING OFFICE WILL NOT OBJECT TO THE USE OF THE APPROPRIATION INVOLVED TO PAY FOR HAVING THE WORK DONE OTHERWISE. COMP. GEN. 951, DISTINGUISHED. WHERE IT IS NOT IN THE INTERESTS OF THE GOVERNMENT TO HAVE CERTAIN TABULATING SERVICES IN CONNECTION WITH THE REGISTRATION OF ALIENS UNDER THE ALIEN REGISTRATION ACT OF 1940 PERFORMED BY DEPARTMENT OF JUSTICE EMPLOYEES AND IT IS FOUND AFTER ADVERTISING FOR BIDS THAT SUCH WORK CAN BE ,AS CONVENIENTLY OR MORE CHEAPLY" PROCURED BY CONTRACT WITH A PRIVATE CONCERN THAN BY PLACING AN ORDER THEREFOR WITH ANOTHER TO HAVE CERTAIN TABULATING SERVICES IN CONNECTION WITH THE REGISTRATION OF ALIENS UNDER THE ALIEN REGISTRATION ACT OF 1940 PERFORMED BY DEPARTMENT OF JUSTICE EMPLOYEES AND IT IS FOUND AFTER ADVERTISING FOR BIDS THAT SUCH WORK CAN BE "AS CONVENIENTLY OR MORE CHEAPLY" PROCURED BY CONTRACT WITH A PRIVATE CONCERN THAN BY PLACING AN ORDER THEREFOR WITH ANOTHER GOVERNMENT AGENCY, SUCH MODE OF PROCUREMENT IS AUTHORIZED UNDER SECTION 601 OF THE ACT OF JUNE 30, 1932, WHICH EXPRESSLY PROVIDES THAT SERVICES MAY BE SO PROCURED UNDER SUCH CIRCUMSTANCES.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, OCTOBER 31, 1941:

I HAVE YOUR LETTER OF OCTOBER 29, 1941, AS FOLLOWS:

IT IS NECESSARY AT THE PRESENT TIME TO PUNCH INTO APPROXIMATELY 5,000,000 CARDS IN RESPECT OF ALL ALIENS REGISTERED UNDER THE ALIEN REGISTRATION ACT OF 1940, THE CODES INDICATING THEIR ARRESTS, AFFILIATIONS AND OTHER DATA. THE PERSONNEL AND MACHINES FOR THIS TYPE OF WORK IN THE ALIEN REGISTRATION DIVISION OF THE IMMIGRATION AND NATURALIZATION SERVICE OF THE DEPARTMENT OF JUSTICE ARE ALREADY ENGAGED IN SIMILAR PUNCHING OPERATIONS TO KEEP THE ALIEN REGISTRATION RECORDS CURRENT AND TO PREPARE INFORMATION ON ALIENS WHICH IS IMPORTANT IN NATIONAL DEFENSE. FOR EXAMPLE, IT IS ESSENTIAL TO KEEP CURRENT THE RECORDS OF CHANGES OF ADDRESS AND STATUS OF CERTAIN CLASSES OF ALIENS AND THIS INFORMATION CAN BE KEPT READILY AVAILABLE ONLY BY THESE PUNCHING OPERATIONS. THESE ESSENTIAL OPERATIONS WOULD BE DELAYED IF THIS PERSONNEL AND THESE MACHINES WERE WITHDRAWN FROM THIS CURRENT WORK TO DO THIS ADDITIONAL WORK WHICH IS ALSO AN ESSENTIAL PART OF THE CONTROL OF ALIENS IN CONNECTION WITH THE NATIONAL DEFENSE PROGRAM. EVEN IF ADDITIONAL MACHINES COULD BE RENTED TO DO THIS WORK, THERE IS NO SPACE AVAILABLE FOR THEM AND EVEN IF THAT COULD BE PROCURED IT WOULD TAKE MONTHS TO OBTAIN PERSONNEL AND EVEN A LONGER PERIOD TO TRAIN THEM AT CONSIDERABLE EXPENSE FOR THIS TEMPORARY WORK.

IT IS PROPOSED TO HAVE THIS ADDITIONAL WORK, WHICH WILL TAKE APPROXIMATELY FIFTY WORKING DAYS, DONE BY THE INTERNATIONAL BUSINESS MACHINE CORPORATION, WHICH HAS THE MACHINES AND THE TRAINED PERSONNEL, UNDER A CONTRACT AT A COST OF $57,000.

IT IS CALLED TO OUR ATTENTION, HOWEVER, THAT A DECISION OF COMPTROLLER GENERAL MCCARL OF MAY 2, 1936 (15 COMP. GEN. 951) STATES THAT A PROPOSED CONTRACT OF THE SECURITIES AND EXCHANGE COMMISSION WITH THE INTERNATIONAL BUSINESS MACHINE CORPORATION TO PUNCH, SORT, AND TABULATE CARDS CONTAINING INFORMATION EXTRACTED FROM QUESTIONNAIRES OBTAINED IN STUDIES OF INVESTMENT TRUSTS, WAS NOT AUTHORIZED. APPARENTLY THAT DECISION WAS BASED UPON THE PARTICULAR STATUTE THERE INVOLVED BECAUSE IT STATES THAT SECTION 30 OF THE PUBLIC UTILITY HOLDING ACT OF 1935 CHARGES THE COMMISSION WITH THE DUTY OF MAKING THE STUDIES AND INCORPORATING THEM IN A REPORT TO CONGRESS, AND SECTION 31 OF THE SAME STATUTE AUTHORIZES THE COMMISSION TO EMPLOY THE NECESSARY PERSONNEL. THESE PROVISIONS IMPLY THE INTENTION OF CONGRESS THAT THIS WORK SHOULD BE DONE BY THIS PERSONNEL. IN ADDITION THE APPROPRIATION SPECIFICALLY APPLICABLE TO THE COMMISSION'S WORK EXPRESSLY PROVIDES FOR RENTAL OF EQUIPMENT AND THAT PROVISION SUPPORTED THE IMPLICATION THAT THIS PARTICULAR WORK WAS TO BE DONE BY GOVERNMENT PERSONNEL ON RENTED MACHINES.

IN THE PRESENT CASE, HOWEVER, THERE ARE NO SUCH SPECIFIC STATUTORY PROVISIONS IMPLYING THAT THIS WORK SHALL BE DONE ONLY BY GOVERNMENT PERSONNEL. SECTION 34 (A) OF THE ALIEN REGISTRATION ACT OF 1940 PROVIDES THAT THE COMMISSIONER OF IMMIGRATION AND NATURALIZATION IS AUTHORIZED AND DIRECTED, WITH THE APPROVAL OF THE ATTORNEY GENERAL, TO PRESCRIBE THE INFORMATION WHICH ALIENS MUST SUPPLY UPON REGISTRATION. THE GENERAL AUTHORITY TO PROCESS THIS INFORMATION TO MAKE THIS DATA READILY AVAILABLE, IS NECESSARILY IMPLIED FROM THE WHOLE PURPOSE OF ALIEN REGISTRATION. NOTHING IN THIS GENERAL AUTHORITY, HOWEVER, IMPLIES THAT IT MUST BE DONE IN ANY PARTICULAR WAY. MOREOVER, THE APPROPRIATION ACTS HERE INVOLVED DO NOT SUPPORT AN IMPLICATION THAT THIS WORK IS TO BE DONE SOLELY BY GOVERNMENT PERSONNEL IN THE SAME WAY THAT THE SPECIFIC APPROPRIATION FOR RENTAL AND EQUIPMENT FOR THE SECURITIES AND EXCHANGE COMMISSION SUPPORTED THAT IMPLICATION.

RENTAL OF MACHINES FOR THE WORK OF THE ALIEN REGISTRATION DIVISION IS NOT PAID OUT OF THE APPROPRIATION FOR " SALARIES AND EXPENSES, IMMIGRATION AND NATURALIZATION SERVICE," BUT IS PAID OUT OF " CONTINGENT EXPENSES," A GENERAL APPROPRIATION FOR THE DEPARTMENT OF JUSTICE. IT IS SUGGESTED THAT SINCE RENTAL OF SUCH EQUIPMENT IS NOT PAID OUT OF THE APPROPRIATION FOR THE IMMIGRATION AND NATURALIZATION SERVICE BUT OUT OF A GENERAL APPROPRIATION, THERE IS NO IMPLICATION, AS IN THE DECIDED CASE, THAT THIS WORK WAS TO BE DONE ONLY ON RENTED MACHINES AND BY GOVERNMENT PERSONNEL.

IF THE PROPOSED CONTRACT IS NOT AUTHORIZED IT WILL COST THE GOVERNMENT AN ADDITIONAL $9,000 (OVER A 15 PERCENT INCREASE) TO HAVE THE WORK DONE BY THE BUREAU OF THE CENSUS WHICH HAS AVAILABLE MACHINES AND PERSONNEL.

IN VIEW OF THE FACT THAT IT IS IMPERATIVE TO DO THIS WORK AS SOON AS POSSIBLE, AND THE BUREAU OF THE CENSUS WILL NOT RETAIN ITS TEMPORARY PERSONNEL BEYOND OCTOBER 30, 1941, I SHALL BE OBLIGED IF YOU WILL GIVE ME YOUR VIEWS ON THIS MATTER AS QUICKLY AS POSSIBLE.

AS INDICATED IN YOUR LETTER, THE DECISION OF MAY 2, 1936, 15 COMP. GEN. 951, WAS BASED UPON THE PROVISIONS OF THE PARTICULAR STATUTE THERE CONSIDERED WHICH CHARGED THE GOVERNMENT AGENCY INVOLVED WITH THE DUTY OF PERFORMING THE NECESSARY WORK AND SERVICES. I FIND NOTHING IN THE ALIEN REGISTRATION ACT, 1940, 54 STAT. 670, OR IN THE DEPARTMENT OF JUSTICE APPROPRIATION ACT, 1942, 55 STAT. 289, WHICH EXPRESSLY OR BY NECESSARY IMPLICATION REQUIRES, UNDER THE REPORTED FACTS AND CIRCUMSTANCES, THAT THE WORK AND SERVICES DISCUSSED IN YOUR ABOVE QUOTED LETTER NECESSARILY BE PERFORMED ONLY BY THE DEPARTMENT OF JUSTICE. CONSEQUENTLY, THE SAID DECISION IS NOT CONTROLLING HERE; AND, IN VIEW OF THE REPRESENTATIONS MADE AS TO THE IMPRACTICABILITY OR IMPOSSIBILITY OF HAVING THESE CARDS PUNCHED BY EMPLOYEES OF YOUR DEPARTMENT IN TIME TO MEET THE NEED THEREFOR, I HAVE TO ADVISE THAT THIS OFFICE WILL NOT OBJECT TO THE USE OF THE APPROPRIATION INVOLVED TO PAY FOR HAVING THE PUNCHING DONE OTHERWISE.

THE QUESTION AS TO WHETHER THE SERVICES SHOULD BE PROCURED UNDER CONTRACT WITH A PRIVATE CONCERN OR FROM ANOTHER GOVERNMENT AGENCY, IS FOR DETERMINATION PURSUANT TO THE PROVISIONS OF SECTION 601, TITLE VI, OF THE ACT OF JUNE 30, 1932, 47 STAT. 417, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

ANY EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT OF THE GOVERNMENT, OR ANY BUREAU OR OFFICE THEREOF, IF FUNDS ARE AVAILABLE THEREFOR AND IF IT IS DETERMINED BY THE HEAD OF SUCH EXECUTIVE DEPARTMENT, ESTABLISHMENT, BUREAU OR OFFICE TO BE IN THE INTEREST OF THE GOVERNMENT SO TO DO, MAY PLACE ORDERS WITH ANY OTHER SUCH DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE FOR MATERIALS, SUPPLIES, EQUIPMENT, WORK, OR SERVICES, OF ANY KIND THAT SUCH REQUISITIONED FEDERAL AGENCY MAY BE IN A POSITION TO SUPPLY OR EQUIPPED TO RENDER, AND SHALL PAY PROMPTLY BY CHECK TO SUCH FEDERAL AGENCY AS MAY BE REQUISITIONED, UPON ITS WRITTEN REQUEST, EITHER IN ADVANCE OR UPON THE FURNISHING OR PERFORMANCE THEREOF, ALL OR PART OF THE ESTIMATED OR ACTUAL COST THEREOF AS DETERMINED BY SUCH DEPARTMENT, ESTABLISHMENT, BUREAU, OR OFFICE AS MAY BE REQUISITIONED; BUT PROPER ADJUSTMENTS ON THE BASIS OF THE ACTUAL COST OF THE MATERIALS, SUPPLIES, OR EQUIPMENT FURNISHED, OR WORK OR SERVICES PERFORMED, PAID FOR IN ADVANCE, SHALL BE MADE AS MAY BE AGREED UPON BY THE DEPARTMENTS, ESTABLISHMENTS, BUREAUS, OR OFFICES CONCERNED: PROVIDED, HOWEVER, THAT IF SUCH WORK OR SERVICES CAN BE AS CONVENIENTLY OR MORE CHEAPLY PERFORMED BY PRIVATE AGENCIES SUCH WORK SHALL BE LET BY COMPETITIVE BIDS TO SUCH PRIVATE AGENCIES. BILLS RENDERED, OR REQUESTS FOR ADVANCE PAYMENTS MADE, PURSUANT TO ANY SUCH ORDER, SHALL NOT BE SUBJECT TO AUDIT OR CERTIFICATION IN ADVANCE OF PAYMENT. ( ITALICS SUPPLIED.)

UNDER THE TERMS OF SAID SECTION--- ASSUMING THAT IT IS NOT PRACTICABLE OR IN THE INTERESTS OF THE GOVERNMENT TO HAVE THIS PARTICULAR CARD-PUNCHING JOB PERFORMED BY EMPLOYEES IN YOUR DEPARTMENT- - YOU ARE AUTHORIZED TO PLACE AN ORDER WITH THE BUREAU OF THE CENSUS, OR ANY OTHER AGENCY OF THE GOVERNMENT, PROVIDED IT IS IN A POSITION TO SUPPLY OR EQUIPPED TO RENDER THE WORK OR SERVICES AND PROVIDED, ALSO, THAT THE WORK OR SERVICES CANNOT BE AS CONVENIENTLY OR MORE CHEAPLY PERFORMED BY A PRIVATE AGENCY. IF, AFTER ADVERTISING FOR COMPETITIVE BIDS, IT SHOULD BE DETERMINED THAT THE WORK OR SERVICES CAN BE AS CONVENIENTLY OR MORE CHEAPLY PERFORMED BY A PRIVATE AGENCY, YOU ARE AUTHORIZED TO CONTRACT WITH SUCH PRIVATE AGENCY INSTEAD OF PLACING THE ORDER WITH AN AGENCY OF THE GOVERNMENT, AND THE APPROPRIATION FOR THE IMMIGRATION AND NATURALIZATION SERVICE IS PROPERLY CHARGEABLE WITH THE COST THEREOF.