A-13436, AUGUST 21, 1926, 6 COMP. GEN. 140

A-13436, AUGUST 21, 1926, 6 COMP. GEN. 140

BOARDS AND COMMISSIONS - TEA INSPECTORS - NAVY DEPARTMENT A BODY OF THREE INSPECTORS OF TEA WHO EACH AND ALL INSPECT AND PASS UPON THE SAME LOTS OF TEA DELIVERED TO THE NAVY, THE REJECTION OR ACCEPTANCE BEING BASED UPON A MAJORITY VOTE OF THE THREE, CONSTITUTES A "COMMISSION, BOARD, COUNCIL, OR OTHER SIMILAR BODY," WITHIN THE PURVIEW OF SECTION 9 OF THE ACT OF MARCH 4, 1909, 35 STAT. 1027, AND MAY NOT BE PAID FROM APPROPRIATED FUNDS. THE INSPECTION OF TEA TO BE FURNISHED UNDER A GOVERNMENT CONTRACT IS A PERSONAL SERVICE TO BE PERFORMED BY REGULAR GOVERNMENT EMPLOYEES, AND THE HIRING OF SUCH INSPECTION BY COMMERCIAL INSPECTORS NOT OTHERWISE IN THE GOVERNMENT SERVICE AND AUTHORIZING THEM TO OVERRULE THE DECISION OF QUALIFIED AND REGULARLY EMPLOYED GOVERNMENT TEA EXPERT IS NOT AUTHORIZED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, AUGUST 21, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 8, 1926, REQUESTING REVIEW OF THE SETTLEMENT M-16580-N OF DECEMBER 15, 1925, IN WHICH WAS DISALLOWED CREDIT IN THE ACCOUNTS OF LIEUT. J. M. HOLMES, SUPPLY CORPS, UNITED STATES NAVY, FOR PAYMENTS TO E. M. GILLETTE AND J. HARVEY SWENARTON, TEA INSPECTORS, FOR SERVICES RENDERED DURING NOVEMBER AND DECEMBER, 1924, AND APRIL, 1925.

THE FOLLOWING EXPLANATION IS SUBMITTED BY THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS AS TO THE CONDITIONS SURROUNDING THE EMPLOYMENT OF THE TEA INSPECTORS:

2. WITH REGARD TO THIS, A CONTROVERSY AROSE AT THE NAVY SUPPLY DEPOT. BROOKLYN, NEW YORK, IN 1922 REGARDING A DELIVERY OF TEA UNDER CONTRACT 56015 WITH CHARLES T. WILSON CO., INC. IT APPEARS THAT CERTAIN OTHER FIRMS DEALING IN TEA MADE A CHARGE THAT CHARLES T. WILSON CO., INC., DELIVERED TEA TO THE NAVY OF AN INFERIOR QUALITY TO THE STANDARD SAMPLE, AND THAT THE NAVY ACCEPTED SUCH TEA.

3. THE METHOD OF INSPECTION OF TEA AT THE TIME IN QUESTION PROVIDED FOR THE NAMING OF AN INSPECTOR BY THE OFFICER IN CHARGE, NAVY SUPPLY DEPOT; THE COST OF INSPECTION TO BE BORNE BY THE CONTRACTOR.

4. THE INSPECTOR IN THIS CASE WAS A MR. E. M. GILLETTE. THE CHARGE MADE BROUGHT THE GOOD NAME OF MR. GILLETTE INTO QUESTION, AND RESULTED IN A THOROUGH INVESTIGATION, WHICH WAS BROUGHT TO A CLOSE BY THE EXAMINATION OF THE SAMPLES OF TEA IN QUESTION BY THE BUREAU OF CHEMISTRY, WHICH PRONOUNCED THEM IN ACCORDANCE WITH THE STANDARD SAMPLE.

5. THIS OCCURRENCE BROUGHT TO LIGHT TWO FACTORS: FIRST, THE FACT THAT IT WAS UNFAIR TO REQUIRE ONE INSPECTOR TO BEAR THE FULL RESPONSIBILITY FOR DETERMINATION OF THE QUALITY OF TEA PURCHASED BY THE NAVY; AND SECOND, THAT THE METHOD OF THE NAVY DEPARTMENT DESIGNATING AN INSPECTOR WHOSE FEE WAS PAID BY THE CONTRACTOR WAS UNBUSINESSLIKE, IN THAT IT TENDED AGAINST THE INTERESTS OF THE GOVERNMENT AND IN FAVOR OF THE CONTRACTOR.

6. TO MEET THIS DIFFICULTY, IT WAS DECIDED THAT THREE INSPECTORS SHOULD EXAMINE TEA FOR THE NAVY, AND THAT THE EXPENSE INCIDENT THERETO SHOULD BE BORNE BY THE GOVERNMENT. IT IS OBVIOUS THAT IT WOULD ENTAIL NO ADDITIONAL EXPENSE TO THE GOVERNMENT AS THE CONTRACTOR, OF NECESSITY, INCLUDED THE COST OF INSPECTION IN THE PRICE BID.

7. IT WAS FURTHER DETERMINED THAT IT WOULD BE VERY ADVANTAGEOUS IF ONE OF THE THREE INSPECTORS WAS A REPRESENTATIVE OF THE DEPARTMENT OF AGRICULTURE, AND ACCORDINGLY THAT DEPARTMENT WAS APPROACHED ON THIS SUBJECT, AND AGREED TO PERMIT MR. C. F. HUTCHINSON, INSPECTOR FOR THE BUREAU OF CHEMISTRY AT NEW YORK, TO ASSIST IN INSPECTING TEA FOR THE NAVY. THE TWO OTHER INSPECTORS WERE TO BE NAMED BY THE OFFICER IN CHARGE, NAVY SUPPLY DEPOT, NEW YORK, AND WERE, OF COURSE, TO BE EXPERTS IN THIS LINE.

9. UNFORTUNATELY, THESE THREE TEA INSPECTORS HAVE BEEN REFERRED TO IN OFFICIAL CORRESPONDENCE AS A "BOARD," BUT IT IS BELIEVED THAT THESE THREE MEN DO NOT CONSTITUTE A BOARD UNDER THE INTENT AND PURPOSE OF THE STATUTE CITED ABOVE. AS EXPLAINED, ONE MEMBER IS AN EMPLOYEE OF THE BUREAU OF CHEMISTRY, DEPARTMENT OF AGRICULTURE, AND RECEIVES NO COMPENSATION FOR HIS SERVICES IN CONNECTION WITH THE INSPECTION OF TEA FOR THE NAVY. THE OTHER TWO INSPECTORS ARE CIVILIAN TEA EXPERTS WHOSE SERVICES ARE MERELY HIRED BY THE GOVERNMENT FOR THIS PURPOSE.

10. THE APPROPRIATION,"PROVISIONS, NAVY," PROVIDES FOR THE PAYMENT OF SERVICES IN CONNECTION WITH THE HANDLING OF PROVISIONS, AND ONE OF THE ELEMENTS OF EXPENSE UNDER THIS HEADING IS NECESSARY INSPECTION. INASMUCH AS THE NAVY EMPLOYS PERMANENTLY NO TEA EXPERTS, IT IS UNDER THE NECESSITY OF HIRING THEM WHEN TEA IS TO BE INSPECTED.

11. THE HIRE OF CIVILIAN INSPECTORS FOR VARIOUS PURPOSES HAS NEVER BEEN QUESTIONED BY THE GENERAL ACCOUNTING OFFICE.

THE HIRING OF THE TEA INSPECTORS AND THE MODE OF THEIR OPERATION WAS APPARENTLY BASED UPON THE RECOMMENDATION OF THE OFFICER IN CHARGE OF THE NAVY SUPPLY DEPOT AT SOUTH BROOKLYN, N.Y., DATED SEPTEMBER 11, 1922, AS FOLLOWS:

1. THE BUREAU REGRETS EXCEEDINGLY THAT THE LAST PURCHASE OF TEA BY THE NAVY DEPARTMENT HAS CAUSED UNFAVORABLE COMMENT AMONG CERTAIN MEMBERS OF THE TRADE IN NEW YORK, AND PARTICULARLY THAT THE INSPECTION IN THIS PARTICULAR CASE HAS RAISED THE QUESTION AS TO THE INTEGRITY OF MR. GILLETTE, THE NAVY DEPARTMENT'S INSPECTOR. MR. GILLETTE'S ABILITY APPEARS TO BE ENTIRELY ABOVE REPROACH, AND THE CONFIRMATION BY OTHER DISINTERESTED INSPECTORS OF HIS ACTION IN ACCEPTING DELIVERY UNDER THE CONTRACT WITH THE C. T. WILSON COMPANY, INC., WOULD SEEM TO PROVE THAT HIS INTEGRITY IS AS GOOD AS HIS KNOWLEDGE OF TEA.

2. HOWEVER, AS THE OFFICER IN CHARGE POINTS OUT IN REFERENCE, THE PURCHASE OF ALL SUPPLIES FOR THE NAVY MUST BE ENTIRELY ABOVE CRITICISM, AND SOME CHANGE IN THE INSPECTION OF TEA APPEARS TO BE NECESSARY. SINCE MR. GILLETTE IS UNDOUBTEDLY AND ADMITTEDLY ONE OF THE BEST TEA EXPERTS IN NEW YORK, IT IS SUGGESTED THAT, IN LIEU OF DISPLACING HIM BY ANOTHER INSPECTOR WHO MIGHT BE ATTACKED IN THE SAME MANNER THAT MR. GILLETTE HAS BEEN, CONSIDERATION BE GIVEN TO THE IDEA OF FORMING A BOARD CONSISTING OF THREE QUALIFIED INSPECTORS, ONE OF WHOM WOULD BE MR. GILLETTE, A SECOND MR. HUTCHINSON (THE NEW YORK REPRESENTATIVE OF THE DEPARTMENT OF AGRICULTURE), AND THE THIRD MEMBER AN EXPERT INSPECTOR SELECTED UPON THE RECOMMENDATION OF THE BOARD OF TEA APPEALS AT NEW YORK. IN THE EVENT THAT THE OPINION OF THIS BOARD OF THREE INSPECTORS IS NOT UNANIMOUS WITH REGARD TO ANY PARTICULAR OFFERING OF TEA, THE OPINION OF THE MAJORITY OF ITS MEMBERS WILL BE ACCEPTED. IT IS BELIEVED THAT THE ADOPTION OF THIS SUGGESTION, OR A SIMILAR ONE, WOULD PLACE THE INSPECTION OF TEA FOR THE NAVY ENTIRELY ABOVE CRITICISM AND WOULD ADD TO THE LIST OF BIDDERS DEALERS WHO DECLINE TO BID FOR THE NAVY CONTRACTS.

SECTION 9 OF THE ACT OF MARCH 4, 1909, 35 STAT. 1027, PROVIDES:

THAT HEREAFTER NO PART OF THE PUBLIC MONEYS, OR OF ANY APPROPRIATION HERETOFORE OR HEREAFTER MADE BY CONGRESS, SHALL BE USED FOR THE PAYMENT OF COMPENSATION OR EXPENSES OF ANY COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY, OR ANY MEMBERS THEREOF, OR FOR EXPENSES IN CONNECTION WITH ANY WORK OR THE RESULTS OF ANY WORK OR ACTION OF ANY COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY, UNLESS THE CREATION OF THE SAME SHALL BE OR SHALL HAVE BEEN AUTHORIZED BY LAW; NOR SHALL THERE BE EMPLOYED BY DETAIL, HEREAFTER OR HERETOFORE MADE, OR OTHERWISE PERSONAL SERVICES FROM ANY EXECUTIVE DEPARTMENT OR OTHER GOVERNMENT ESTABLISHMENT IN CONNECTION WITH ANY SUCH COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY.

IT APPEARS FROM THE RECORD THAT THE THREE TEA INSPECTORS DO NOT ACT SEPARATELY IN INSPECTING DIFFERENT LOTS OF TEA AND THAT THE EMPLOYMENT OF THREE INSTEAD OF ONE IS NOT DUE TO THE QUANTITY OF TEA TO BE INSPECTED, BUT THAT THE ENTIRE NUMBER ACT AS A UNIT, EACH AND ALL INSPECTING THE SAME LOTS OF TEA, AND THAT THE UNANIMOUS OR MAJORITY VOTE IS THE DECIDING FACTOR IN THE ACCEPTANCE OR REJECTION OF THE TEA. IN OTHER WORDS, THEY FUNCTION NOT AS INDIVIDUALS BUT AS A "COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY," AND AS THERE IS NO LAW AUTHORIZING THE FORMATION OF SUCH A BOARD OF TEA INSPECTORS THE PAYMENTS IN QUESTION WERE IN DIRECT CONTRAVENTION OF THE ABOVE CITED STATUTE. 5 COMP. GEN. 417, 553; A.D. 7305, JANUARY 31, 1923.

FURTHERMORE, THE INSPECTION OF TEA IS STRICTLY A PERSONAL SERVICE. PERSONAL SERVICES NECESSARY IN CONNECTION WITH GOVERNMENTAL ACTIVITIES ARE FOR PERFORMANCE BY REGULAR EMPLOYEES OF THE GOVERNMENT WHO ARE RESPONSIBLE TO THE GOVERNMENT, AND SUCH SERVICES SHOULD NOT BE PERFORMED BY CONTRACTORS WHO CAN NOT BE HELD PERSONALLY RESPONSIBLE FOR FAILURE OR MISFEASANCE IN THE PERFORMANCE OF SUCH DUTIES. THE BOARD OF TEA INSPECTORS AS CONSTITUTED IN THE CASE HERE UNDER CONSIDERATION PRESENTS THE ANOMALOUS SITUATION OF TWO PERSONS, NOT GOVERNMENT EMPLOYEES AND NOT UNDER GOVERNMENT SUPERVISION, BEING GRANTED ABSOLUTE AND FINAL AUTHORITY TO OVERRULE THE ACTION OF A PERSON REGULARLY APPOINTED OR EMPLOYED BY THE GOVERNMENT AND RECOGNIZED AS AN EXPERT QUALIFIED TO REPRESENT THE GOVERNMENT IN SUCH MATTERS. THE DECISION AND REPORT OF THE GOVERNMENT TEA INSPECTOR SHOULD BE SUFFICIENT TO ENABLE AN ADMINISTRATIVE DETERMINATION AS TO WHETHER A PARTICULAR LOT OF TEA DOES OR DOES NOT COMPLY WITH THE GOVERNMENT'S SPECIFICATIONS, AND ANY PROCEDURE BY WHICH THE FINAL DETERMINATION IN SUCH MATTERS COULD BE CONTROLLED BY THE ACTION OF TWO PERSONS WHO ARE NOT RESPONSIBLE TO THE GOVERNMENT IS UNAUTHORIZED. THE INSPECTION OF PURCHASES BY THE UNITED STATES IS FOR THE PROTECTION OF THE UNITED STATES AND NOT FOR THE PROTECTION OF VENDORS AND CAN BE ACCOMPLISHED PROPERLY ONLY BY PERSONS RESPONSIBLE TO THE GOVERNMENT AND ACTING UNDER GOVERNMENT SUPERVISION. 3 COMP. GEN. 720; 4 ID. 356, 710; A.D. 6986, AUGUST 17, 1922; A-5842, DECEMBER 10, 1924; A-5280, FEBRUARY 13, 1925.