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(b) Duties: employment of personal services and experts.-The said commission is hereby charged with the duty of preparing, developing, and maintaining a comprehensive, consistent and coordinated plan for the National Capital and its environs, which plan shall include recommendations to the proper executive authorities as to traffic and transportation; plats and subdivisions; highways, parks, and parkways; school and library sites; playgrounds; drainage, sewerage, and water supply; housing, building, and zoning regulations; public and private buildings; bridges and water fronts; commerce and industry; and other proper elements of city and regional planning. It is the purpose of this section to obtain the maximum amount of cooperation and correlation of effort between the departments, bureaus, and commissions of the Federal and District Governments. To this end plans and records, or copies thereof, shall be made available to the National Capital Park and Planning Commission, when requested. The commission may, as to the environs of the District of Columbia, act in conjunction and cooperation with such representatives of the States of Maryland and Virginia as may be designated by such States for this purpose. The said commission is hereby authorized to employ the necessary personal services, including the personal services of a director of planning and other expert city planners, such as engineers, architects, and landscape architect. Such technical experts may be employed at per diem rates not in excess of those paid for similar services elsewhere and as may be fixed by the said commission without regard to the provisions of sections 661 to 674 of title 5, or any rule or regulation made in pursuance thereof.

As the work of the Commission is limited by law to the seat or Government and its environs, the Commission may not be said to have a separate departmental and field service as those terms have been generally understood and applied. That is to say, all of the personnel of the Commission appear to be engaged upon work in connection with the District of Columbia and its environs. The situation here disclosed is clearly distinguishable from that considered in the quoted decision involving the National Park Service which administers National Parks all over the country including those situated in Washington. Consequently, the personnel of the National Park Service engaged exclusively in executing locally the laws pertaining to the parks properly may be regarded as a field force, whereas the National Capital Park and Planning Commission appears to be but one unit, with headquarters in the District of Columbia, and the duties of all of the personnel appear to be limited to Washington and its environs. All of the activities of the Commission are exercised exclusively for the benefit of the seat of Government where the departmental service is located. Accordingly, I am constrained to hold that the appropriations for the National Capital Park and Planning Commission may not properly be classed as "field," and that the personnel of the Commission are to be regarded as in the departmental service. Accordingly, question 1 is answered in the negative.

Referring to questions 2 and 3, the appropriation first-above quoted and the basic statute specifically authorize the Commission to fix salary rates without regard to the Classification Act. However, it is within the discretion of the Commission to adopt administratively the grades and salary rates prescribed by the Classification

Act for the personnel of the Commission, but to bring the positions within said act the allocation of the positions will be subject to approval by the Civil Service Commission. It is unnecessary to wait until the positions shall have been covered into the competitive classified civil service. It has been held in a number of decisions that the Classification Act and the Civil Service laws and regulations are separate and distinct, having different scopes and purposes. See 17 Comp. Gen. 578; 18 id. 223; id. 796.

In view of the answer to question 1 it is unnecessary to answer question 4.

Referring to question 5, as the positions involved are more properly classed as departmental (see answer to question 1), and as the administrative classification of the positions for budgetary purposes has not been approved by the Civil Service Commission, the personnel do not come within the purview of the act of August 1, 1941, Public Law 200, 55 Stat. 613, amending the Classification Act, and the employees are not entitled to a within-grade salary advancement as of October 1, 1941. The fact that the employees are paid on a per annum basis is not the sole controlling or qualifying factor for bringing them within the terms of the said act. In addition they must occupy "permanent positions within the scope of the compensation schedules fixed by" the Classification Act, and it is with respect to this latter requirement that the employees have failed to qualify.

Section 302 of the "Second Deficiency Appropriation Act, 1941," approved July 3, 1941, Public Law 150, 55 Stat. 575, provides:

No appropriation or part of any appropriation available for obligation during the fiscal year 1942, including funds of Government-owned or controlled corporations, shall be used for granting within-grade salary advancements to any officer or employee of the Government of the United States, the District of Columbia, or of any such corporation, who is compensated on a per annum basis and who occupies a position the compensation of which is fixed (1) according to the schedules prescribed by the Classification Act of 1923, as amended, or (2) by Executive Order Numbered 6746, or (3) administratively according to schedules patterned after such Classification Act: Provided, That this section shall cease to be operative whenever a uniform, within-grade, salary-advancement plan for positions compensated according to such Classification Act, as amended, shall take effect, pursuant to law.

As there now has been provided and put into effect as of October 1, 1941, a "uniform within-grade, salary-advancement plan for positions compensated according to such Classification Act, as amended," the prohibition against within-grade salary advancements during the fiscal year 1942 contained in the above quoted statutory provision has ceased to operate, regardless of whether the positions come within the purview of the Classification Act, as amended by the act of August 1, 1941, Public Law 200. Question 6 is answered accordingly.

Referring to question 7, it is within the discretion of the Commission to advance the salary of the employees in the grades adminis

tratively fixed for the positions of the employees in question at any time, prospectively effective, within the limits of available appropriations, but if it be administratively determined to bring the positions within the purview of the Classification Act, within-grade salary advancements under the provisions of the act of August 1, 1941, Public Law 200, may not be made unless and until the Civil Service Commission shall have approved the allocation of the positions.

Referring to the last question presented relating to the Director of Planning, who is paid $20 per diem, you are advised that he is not entitled to a salary advancement under the provisions of the act of August 1, 1941, Public Law 200, amending the Classification Act, for the reasons (1) his position is not now within the purview of the Classification Act and (2) his salary is paid on a per diem basis, said act of August 1, 1941, being limited to "employees compensated on a per annum basis, and occupying permanent positions within the scope of the compensation schedules fixed by this Act" (quoting from section 2 (b) of said statute). However, if it be administratively determined (1) not to classify the position and (2) that the salary rate of $20.70 is a rate "not in excess of those paid for similar services elsewhere" (quoting from section 71 (b), title 40, U. S. Code), it is within the discretion of the Commission to advance his salary rate from $20 to $20.70 per diem, prospectively effective only, within the limits of available appropriations.

(B-21978)

VEHICLES-PASSENGER-CARRYING-PURCHASE UNDER COST-PLUS CONTRACTOR'S RENTAL AGREEMENT

Where it is in the Government's interest to exercise the right reserved for its benefit in a cost-plus-a-fixed-fee contractor's agreement with its equipment rental contractor to acquire title to any of the passenger-carrying motor vehicles furnished under the agreement by paying the difference between the accrued rental and the sale price, the amount paid as rental is not to be considered as part of the purchase price of a vehicle in determining whether the price is within the statutory limitation for such vehicles. Comptroller General Warren to the Acting Federal Works Administrator, December 10, 1941:

I have your letter of November 17, 1941, as follows:

On December 12, 1940, Public Buildings Administration, acting as Agent for the Federal Works Administrator, entered into a contract on a cost-plus-afixed-fee basis for the construction of 3,000 dwelling units at San Diego, California (Project No. CAL-4092, Contract No. WA1-pb 2008).

A large number of passenger-carrying motor vehicles were required for use in connection with the contract because of the large area occupied by the 3,000 dwelling units. The contractor's requirements exhausted the supply of such vehicles available for renting in the vicinity and the contractor was compelled to satisfy his needs by procuring twenty-one (21) passenger-carrying automobiles from a local retail automobile dealer under a rental agreement at rates which, when computed on a yearly basis, amounted to less than $750

per annum in all cases except one where the yearly rental exceeded that amount. The agreement further provided that at any time during or after the rental period the contractor might elect to acquire title to the automobiles in question by paying the difference between the accrued rental and the purchase price. The contractor has advised this office that the options to purchase were taken for the benefit of the Government.

Deliveries of the vehicles were made during the months of February and March 1941. Rental has accrued in such amounts that it is now possible to secure title to each of the vehicles in question by payment of a sum which would in no event exceed $750 and in most cases constitutes only a small fraction of the purchase price of the vehicles in question. However the sum of the accrued rental plus the amount of the money required to secure title to any one of the vehicles exceeds $750. It is now difficult to obtain in the market new equipment of the type here involved and this office is desirous of exercising the option to purchase the vehicles in question, since a number of them can be used by defense housing management offices and requests for those remaining have been received from a number of Government Agencies, including the Public Roads Administration, the Work Projects Administration and the Reconstruction Finance Corporation.

In your recent decision addressed to the Secretary of War, on September 29, 1941 (B-20442) you indicated that section 302 (a) of the Treasury and Post Office Departments Appropriation Acts, 1941 and 1942 (54 Stat. 55 and Public, No. 88, 77th Congress, approved May 31, 1941) might be applicable to purchases of cost-plus-a-fixed-fee contractors. The sections are identical except as to the year. That for 1942 provides as follows:

"No appropriation available for the executive departments and independent establishments of the Government for the fiscal year ending June 30, 1942, whether contained in this act or any other act, shall be expended

"(a) To purchase any motor-propelled passenger-carrying vehicle (exclusive of busses, ambulances, and station wagons), at a cost, completely equipped for operation, and including the value of any vehicle exchanged, in excess of $750, unless otherwise specifically provided for in the appropriation."

In view of the recent decision of the United States Supreme Court in the case of Alabama v. King and Boozer, decided on November 10, 1941 (No. 602, October Term 1941) which holds that a cost-plus-a-fixed-fee contractor is an independent contractor and not an agent of the Government, it is our opinion that the statute in question is not applicable to purchases made by cost-plusa-fixed-fee contractors. In the light of the decision the money expended should be considered as having been expended for the construction of the housing project and not for the purchase of motor-propelled passenger-carrying vehicles.

Even though it could be considered that the money was expended for the purchase of such vehicles, with which we do not agree, it is our further contention that the purchase price of the vehicles in question should be regarded as the amount presently remaining to be paid in order that title may be acquired and that the balance of the expenditure must be regarded as paid for equipment rental and not for the purchase of the vehicles.

In the light of the foregoing discussion, this office respectfully requests your decision as to whether or not the Government may acquire title to the twentyone (21) vehicles in question, by paying for each the difference between the accrued rental and the purchase price.

The terms of contract No. WA1pb 2008, here involved, provide for the reimbursement to the contractor of the construction cost of performing the stipulated work, and with reference to the expenditures and charges agreed by the parties as being included in such construction cost, paragraph numbered 5 of the General Conditions, incorporated as a part of the contract, provides, in pertinent part, that:

The Contractor's "Construction Cost" shall comprise the sum of costs and expenses incurred in two categories designated as "Production Cost" and "Plant Rental," both of which are hereinafter defined in appropriate subitems.

Under section "B" of the said General Conditions, the latter type of construction cost is defined, as follows:

Contractor's plant is defined to include all of those items utilized by the Contractor for the conduct of its operations in the performance of its contract as such items are enumerated in the publication "Contractor's Equipment Rental Schedule"

An examination of the said "Schedule" discloses that, among other designated types of equipment, it was contemplated by the parties that automobiles (indicated as referring to passenger-carrying vehicles) might be used by the contractor in the efficient conduct of the contract operations. Therefore, in view of the quoted provisions of the contract, it would appear that, as suggested by you, such amounts as have been paid to the contractor for the rental of the vehicles so furnished "should be considered as having been expended for the construction of the housing project." Furthermore, the arrangements entered into by the contractor for obtaining the necessary automobiles in no manner affect the payments made to the contractor for the rental thereof and no basis is perceived for regarding the character of such expenditures as having been changed from that of equipment rental to a part of the purchase price by reason of the subsequent purchase of these or other used passenger-carrying vehicles.

Accordingly, in view of the foregoing and since it is reported that the amount now to be paid for any of the vehicles is less than $750, or, within the statutory limitation imposed by the Treasury Department Appropriation Act, 1941, 54 Stat. 78, you are advised that there appears no legal objection to the acquisition of title thereto, if determined to be in the interest of the Government and the appropriation sought to be charged is available for the purchase of passengercarrying vehicles.

(B-22059)

COMPENSATION—WITHIN-GRADE PROMOTIONS-ELIGIBILITY Appointments under sections 2 and 4 of Rule VIII of the Civil Service Rules and Regulations (Executive Order No. 7915) are designated therein as "temporary," and, therefore, employees holding positions by reason of such appointments are not entitled to the benefits of the act of August 1, 1941, providing for within-grade salary advancements for employees "occupying permanent positions."

Employees appointed from the Emergency Replacement List under authority of Executive Order No. 8458, as amended, occupy positions "designated as temporary by law" for the period prior to January 1, 1942, the effective date of Executive Order No. 8952 revoking said Executive Order No. 8458, and, therefore, prior to January 1, 1942, they are not entitled to the benefits of the act of August 1, 1941, providing for within-grade salary advancements for employees "occupying permanent positions." Employees who are appointed from the Emergency Replacement List under authority of Executive Order No. 8952 and whose appointments are not for a definite period of six months or less are occupying permanent posi

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