respect to the cost of any individual project of construction, shall be suspended until and including June 30, 1942, with respect to any construction authorized by this act: Provided further, That no contract entered into pursuant to the provisions of this section which would otherwise be subject to the provisions of the act entitled "An Act to provide conditions for the purchase of supplies and the making of contracts by the United States, and for other purposes," approved June 30, 1936 (49 Stat. 2036; U. S. C., supp. V, title 41, secs. 35-45), shall be exempt from the provisions of such act solely because of being entered into without advertising pursuant to the provisions of this section: Provided further, That the cost-plus-a-percentage-of-cost system of contracting shall not be used under this section; but this proviso shall not be construed to prohibit the use of the cost-plus-a-fixed-fee form of contract when such use is deemed necessary by the Secretary of War.

It appears therefrom that while the provisions of sections 1136 and 3734, Revised Statutes, containing certain restrictions on the construction of permanent barracks, quarters, and other public buildings, were suspended until June 30, 1942, no mention is made in the act with respect to the suspension of other statutory limitations which were in effect at the time, such as the one imposed on the purchase of typewriting machines, supra. Hence, it cannot be said that there is any express statutory authority to the effect that, in carrying out the provisions of Public, No. 703, there is no need to observe the other existing statutory restrictions on the expenditures of public funds.

Moreover, there is nothing in the act from which it can be said that the Congress impliedly intended that other statutory limitations should be suspended. It is an established rule of statutory construction that a later general statute is not to be construed as affecting the operation of an earlier special statute unless the special statute is expressly repealed, or is so wholly inconsistent with the general statute that its repeal must of necessity by implied. United States v. Nix, 189 U. S. 199; Rodgers v. United States, 185 U. S. 83; Ex parte Crow Dog, 109 U. S. 556, 570; Washington v. Miller, 235 U. S. 422; 19 Comp. Gen. 492, 495. The rule was stated in the case of Ex parte Crow Dog, supra, as follows:

The language of the exception is special and express; the words relied on as a repeal are general and inconclusive. The rule is, generalia specialibus non derogant. "The general principle to be applied," said Bovill, C. J., in Thorpe v. Adams, L. R. 6 C. P. 135, "to the construction of acts of Parliament is that a general act is not to be construed to repeal a previous particular act, unless there is some express reference to the previous legislation on the subject, or unless there is a necessary inconsistency in the two acts standing together." "And the reason is," said Wood, V. C., in Fitzgerald v. Champenys. 30 L. J. N. S. Eq. 782; 2 Johns. and Hem. 31-54, "that the legislature having had its attention directed to a special subject and having observed all the circumstances of the case and provided for them, does not intend by a general enactment afterwards to derogate from its own act when it makes no special mention of its intention so to do."

The Treasury Department Appropriation Act, 1941, containing the limitations on the amounts to be expended for the purchase of typewriting machines, was enacted on March 25, 1940, and, consequently, was in effect at the time of the passage of Public, No. 703 on July 2, 1940. There is nothing in the two acts which indicates

that they are so inconsistent that the two cannot stand together, or that there is such an irreconcilable conflict between the earlier and later statute that effect cannot reasonably be given to both. The purpose of Public, No. 703, was to expedite the strengthening of the national defense and that of the provision in the Treasury Department Appropriation Act, 1941, was to limit the amount that could be expended for typewriting machines by the use of appropriated moneys. Considering the purposes of the two acts it is not apparent that the limitations on the purchase price of typewriting machines is so inconsistent with the expediting of the strengthening of the national defense that it must be concluded that the Congress intended to repeal the former act in the passage of the latter statute. There is an essential difference, insofar as the work of expediting the strengthening of the national defense is concerned, between the limitations imposed by the provision in the Treasury Department Appropriation Act, 1941, on the unit prices to be expended for typewriting machines, or that imposed on the amount to be expended in the purchase of passenger-carrying vehicles (54 Stat. 78), and the limitation contained in section 1136, Revised Statutes, providing that permanent barracks, quarters, or other public buildings shall not be constructed unless detailed estimates shall have been previously submitted to the Congress, and the limitation in section 3734, Revised Statutes, providing that no money should be expended upon any public building until after sketch plans and construction estimates have been made by the supervising architect of the Treasury Department, and such plans and estimates have been approved by the Secretary of the Treasury and the head of the executive department involved. The fact that the latter limitations would interfere materially with the work of expediting the strengthening of the national defense is at once apparent. This was recognized by the Congress and, in the passage of Public, No. 703, said limitations, together with any other statutory limitations on the costs of any individual project of construction, were suspended until June 30, 1942. It must be assumed that if it had been considered by the Congress that the existing statutory limitations on the purchase price of supplies would impede the work of expediting the strengthening of the national defense, such limitations, also, would have been removed.

Therefore, it cannot be said that in the enactment of Public, No. 703, the Congress suspended, either expressly or impliedly, any existing statutory limitations on the expenditure of public moneys except those limitations expressly mentioned therein.

However, it is urged in your letter of September 12 that, in drafting the cost-plus-a-fixed-fee form of contract, it was the intention of your Department to preserve to the contractors freedom of action,

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and that it was not the intention to require the contractors to conform to, or operate under, any form of purchase limitations which were applicable to the Government departments. And it is stated that, in the judgment of your Department, the cost-plus-a-fixed-fee contractor in his relationship to the Government is an independent contractor and, consequently, it is contended that he is not bound by such purchase restrictions as would limit the authority of a dependent Government official.

It is not clear that a contractor engaged to perform work for the Government under a cost-plus-a-fixed-fee form of contract is an "independent contractor" within the meaning of that term in a legal sense. The cost-plus-a-fixed-fee contractor is not one who undertakes to perform a certain form of work for a stipulated sum-answerable to the Government only as to the result to be accomplished. On the contrary, under the provisions of the cost-plus-a-fixed-fee form of contract approved by your Department a certain amount of supervision and control over the details of the work is exercised by the Government through the contracting officer or his duly authorized representative. For example, contract No. W-ORD-458, involved in the Notice of Exception of July 21, 1941, provided for the construction and operation by the contractor of a plant for the manufacture of nitrocellulose smokeless powder; and, under the terms thereof, the contractor was to design and prepare plans, drawings, and specifications subject to the approval of the contracting officer, and agreed to procure necessary labor and material for the construction and operation of the plant under the general supervision of the contracting officer. It was provided further that no subcontracts should be made by the contractor without the written approval of the contracting officer and that reimbursements of all costs and expenditures in the construction and operation of the plant would be made to the contractor only upon the presentation of evidence satisfactory to the contracting officer. Furthermore, the Government reserved the right to furnish materials and supplies directly to the contractor. Accordingly, in view of said provisions, and similar provisions in other cost-plus-a-fixed-fee contracts entered into by your Department, it cannot be said that the contractor was responsible to the Government for only the results of the work, or that it was in no way subject to supervision regarding the details of the work so as to be classed as an "independent contractor" within the legal contemplation of that term. In this connection, attention is invited to decision of August 30, 1941, B-19726, 21 Comp. Gen. 186, to you, holding that payments for telegraph services furnished to a cost-plus-a-fixed-fee contractor should be made at the Government rate rather than at the commercial rate; and, also, to the recent case of King and Boozer v.

Alabama, decided on or about July 29, 1941, in which the Supreme Court of Alabama held that an Alabama privilege or license tax was not applicable to purchases made by a cost-plus-a-fixed-fee contractor, the cost of which was to be borne by the Federal Government, and concluded that the contractor was acting for the Government in the accomplishment of a governmental purpose so that the burden of the tax fell directly and immediately upon the Federal Government. With respect to the status of the cost-plus-a-fixed-fee contractor, the court stated:

The contractor here was acting for the Government in the accomplishment of a governmental purpose. His acts were all under the immediate and direct supervision of the governmental authorities. His contract partakes of the nature in some respect of an independent contractor, and in some of an agency of the Government.

However, it is not necessary at this time to decide definitely the question as to whether or not a contractor under a cost-plus-a-fixedfee form of contract is an "independent contractor." The involved Notice of Exception was not based primarily on the theory that in purchasing the typewriting machines the contractor was acting in the capacity of an agent of the Government. In the Notice of Exception the reason for the exception was stated substantially as follows: The terms of the Treasury Department Appropriation Act for 1941, quoted above, are clear and unambiguous to the effect that no part of any money appropriated by that or any other act shall be used during the fiscal year 1941 for the purchase of any standard typewriting machines at prices in excess of the amounts stipulated therein. Moreover, while the involved cost-plus-a-fixed-fee contract, No. W-ORD-458, contemplated that the materials to be used in the performance thereof would be furnished primarily by the contractor, such contract reserved to the Government the right to purchase supplies and materials and to furnish them to the contractor for use in performance of the contract. Therefore, since it appeared that the typewriting machines involved in the Notice of Exception were available to the Government under a General Schedule of Supplies contract at a price within the limitation fixed by law, whereas the price paid by the contractor for the machines was in excess of the statutory limitation, it was concluded that, under the circumstances, the machines should have been purchased directly by the Government and, consequently, that there was no authority for the purchase of the equipment by the contractor at the higher price in the absence of evidence showing a justification therefor.

With respect thereto, it is stated in your letter of September 12 that a procedure which would require cost-plus-a-fixed-fee contractors either to comply with applicable statutory restrictions in the purchase of supplies, or to have the Government purchase such supplies di

rectly, would have the effect of impeding to a serious extent the progress of the construction program of your Department, and that it would defeat the whole purpose which the program was designed to accomplish, namely, to expedite the strengthening of national defense. However, such view appears inconsistent with the regulations of your Department as contained in the Manual of the Construction Division, Office of the Quartermaster General, and the construction letters of said Division. Under existing regulations of the said Construction Division the cost-plus-a-fixed-fee contractor is not free to make purchases of materials or supplies without first having obtained the approval of the Construction Quartermaster. With respect thereto, the Manual of the Construction Division, book 3, part V, chapter II, section 01, paragraph D, provides:

Except as indicated in the schedule, the contractor is responsible for the procurement of all construction material, on purchase orders approved by the CQM. These materials will be purchased in accordance with OQMG specifications where such pertain. * [Italics supplied.]

In chapter II, section 02, paragraphs B and C, it is provided as follows:

B. CQMs will compare quotations on materials and equipment received by fixed-fee contractors or on Government invitation for bids with prices contained in the General Schedule of Supplies. When the latter prices are lower, purchases will be made from the General Schedule provided a satisfactory delivery date can be arranged.

C. Purchases subject to the limitations contained in regulations and instructions will be made by the CQM, from the General Schedule of Supplies, and other Government and War Department contracts available, for his office or for use of the Contractor operating exclusively under a “cost-plus-a-fixed-fee" contract.

With respect to the purchase of passenger-carrying vehicles it is provided in part V, chapter IV, section 02, paragraph C, that—

When approval is given by OQMG for direct purchase by C. P. F. F. contractors, the price of any passenger-carrying motor vehicle will not exceed the statutory price limitation of $750. F. O. B. factory or any designated point of origin, unless cogent reasons are submitted for purchase at higher price. In determining F. O. B. price the lowest available transportation cost will be deducted from bids including transportation. This restricted price does not apply to equipment rented with a recapture clause.

Also, it is stipulated in part V, chapter I, section 08, as follows:

A list of the items manufactured and instructions for placing orders are printed in the Schedule of Products published by Federal Prison Industries, Inc., Washington, D. C. All items listed therein will be purchased from this source, except where a clearance for commercial purchase has been obtained. *

Hence, it appears that under existing regulations of the Construction Division, Office of the Quartermaster General, the freedom of action of cost-plus-a-fixed-fee contractors with respect to the purchase of supplies not only is restricted, but, also, it is stipulated expressly that whenever items are available to the Government under a General Schedule of Supplies contract at lower prices than those proposed to be paid by the contractor the purchase shall be made under such con