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091162 1 (1970-01-01)

handle is hein.gao/gaobadupg0001 and id is 1 raw text is: CONTRACTING FOR PERSONAL SERVICES Legal Considerations in Contracting for Personal Services 7.:2(4. P By Edwin J. Monma This artkle Is Intended to provide guidelnes for evluat. Ing the relationship between the Government and the employees of service-type eonctlors in couneclon with possible violations of the civil service laws In conracts for personal services. During the past few years the policies and practices of Government agencies in the field of contracting for the per- formance of personal services have received the critical attention of the General Accounting Office (GAO), the Civil Service Commission (CSC), and several committees of the Congress.' Much of the GAO work in that regard has been concerned with the compara- tive cost of contractor v. in-house performance. Such cost evaluations are of prime importance when the pro- curement of the services by the contract involved is authorized by law. There are, however, certain legal principles under which the propriety of contracts for services must be determined. a uf. Kept 8. am C46g. 1,4 n. (1.... Cal. mitus M Pint off. ad 011 Owne) I 14st. mbe 5. Cmulne.s .in=sf Opffad. - Geyvwses esky ad & m&a te .mbk ape to CAS. tasee 1w Tookes Beed...,4 St Cm#, ld .ini 114uImp bawe 4 lsheIe Cinailk. Gomemu Opmet ena Ceswuhl femns &ad Ceastmdg *a ILL 4146 91A C.,g.. lit ur., n 1. CSC is responsible for the adminis- tration and enforcement of the civil service laws, rules and regulations, and the pay provisions applicable to the single largest group, General Schedule (GS), of Federal employees. (5 U.S.C. 1104(a) (5); id. 1301; id. 1302; id. 3301; id. 3302; id. 5102; id. 5103; id. 5331.) Therefore, GAO has coordinated its actions with CSC or consulted with CSC prior to final actions taken by GAO on service contracts which ap- peared to be in violation of such pro- visions of law, rules, and regulations. CSC has studied the legal aspects of this problem and In opinions of its General Counsel certain specific contracts and the general rules of law applicable have been discussed and applied. GAO Is the agency vested with enforcement powers under its authority to disallow pay- ments made pursuant to contracts which have been found to be illegal. (See 5 Comp. Gen. 450.) Mr. Moasma received a J.D. degree from the Law School, George Washington University, In 19S6. lie has been employed as an attorney In the Office of the General Counsel since 1958, and In 1967 he received a Meritorious Service Award. Personal Services Some confusion in the application of the rules set by GAO and the prin. ciples enunciated by CSC has resulted from the fact that the term personal services has been given various mean. t Ings and connotations. The term personal services as used * in early, decisions of the Comptroller General Included all services normally performed by Government employees and all services which could be per. formed by incumbents of existing civil service positions. It was held in those * decisions that Government agencies were not authorized to contract for the performance of such services. It was considered that those services should not be performed by contractors that could not be held personally responsible for failure or misfeasance in the per. formance of such duties. The format and operation of the contract, whether on a job or end-product basis or under conditions clearly suggesting an employer.employee relationship, were not stressed. (See 6 Comp. Gen. 140; id. 364; id. 474. See also 32 Comp. Gen. 427; Turei v. Delaney, 32 NE 2d 774 (New York, 1941).) More recently it has been emphasized that services normally performed by Government personnel may be per. formed under a proper contract with a Government agency If that method of procurement is shown to he more feas. ible, more economical, or necessary to the accomplishment of the agency's task. Inherent in this modification of the prior strict rule was the require- ment that the contract be so worded and carried out In a manner so as not to be tainted with an employer.employee re- lationship. (31 Comp. Gen. 372; id. 510; 33 id. 143; 44 id. 761.) Also In- herent n that modification was the re- striction that the services Involved in any contract were services which culd properly be delegated to non-Govern. ment personnel The recent examinations of contracts which have been performed by CSC were concerned with the lack of legal authority on the part of Government agencies to secure personal services by contract with a firm In lieu of securing such services under the provisions of the civil service laws. Basically, the position taken by CSC Is that, Ii the terms of the contract permit or require detailed Government supervision over the contractor's employees or the man. nr in which the services are performed under the contract leads to the same result, the contract must be questioned on a legal basis. Contracts for serv- ice which are in fact performed under detailed Government supervision and control have been referred to as con- tracts which are performed on a per. sonal service basis or more loosely as personal service contracts. The various uses of the term per- sonal services have caused some mis. understanding with regard to the legal conclusions of GAO and CSC. It should be clearly understood that the legality of contracts for services which are to be performed on a nonpersonal service or independent contractor basis has not been questioned even though the serv- Ices Involved may be performed by an individual contractor himself or may be services normally performed by Gov- ernment employees. (See 43 Comp. Gen. 390; 28 id. 296; id. 50; 26 id. 442; id. le8.)

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