Accordingly, under section 14 of the annual leave regulations and the abovequoted decisions, temporary employees are not entitled to annual leave for a fractional month's service. There is perceived no reason why the same rule should not be for application as to sick leave. Compare 18 Comp. Gen. 457.

On the basis of the controlling law and regulations and the quoted decision, your answer to question (a) is correct, except that the reference should be to section 14 of the annual leave regulations, Executive Order No. 8384, dated March 29, 1940, instead of to "Sec. 14, Public 471, 74th Congress."

Public Resolution No. 127, approved June 29, 1938, 52 Stat. 1246, provides:

That hereafter whenever regular employees of the Federal Government whose compensation is fixed at a rate per day, per hour, or on a piece-work basis are relieved or prevented from working solely because of the occurrence of a holiday such as New Year's Day, Washington's Birthday, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, Christmas Day, or any other day declared a holiday by Federal Statute or Executive order, or any day on which the departments and establishments of the Government are closed by Executive order, they shall receive the same pay for such days as for other days on which an ordinary day's work is performed.

SEC. 2. The joint resolution of January 6, 1885 (U. S. C. title 5, sec. 86), and all other laws inconsistent or in conflict with the provisions of this act are hereby repealed to the extent of such inconsistency or conflict.

In decision of November 21, 1939, B-6669, 19 Comp. Gen. 511, it was held as follows (quoting from the syllabus):

"Temporary employees" as defined in the uniform leave regulations-"those appointed for definite periods of time not exceeding 6 months”—are not “regular employees" within the meaning of the per diem, etc., employee holiday pay statute of June 29, 1938, 52 Stat. 1246, and thus are excluded from its provisions, and such a temporary employee on a 5-day, 40-hour week basis, is not entitled to pay for a holiday even though it occurs on a day which is a part of his 40-hour work week, and even though he is in a duty or leave with pay status throughout the work week.

The act of March 2, 1940, 54 Stat. 38, provides:

That the days of annual leave with pay provided for in the act of March 14, 1936 (49 Stat. 1161), and the days of sick leave with pay provided for in the act of March 14, 1936 (49 Stat. 1162), shall mean days upon which employees would otherwise work and receive pay, and shall be exclusive of Sundays which do not occur within a regular tour of duty, holidays, and all nonwork days established by Federal statute or by Executive or administrative order.

Under the terms of the quoted statutes, and section 14 of the annual leave regulations (included in the quotation from the decision of May 28, 1941, supra), as well as the rule stated in the quoted decisions, your proposed answer to question (b) is too broadly stated. A temporary employee paid on an annual or monthly basis as distinguished from temporary employees "whose compensation is fixed at a rate per day, per hour, or on a piece-work basis"-quoting from Public Resolution No. 127, supra―are entitled to pay for holidays declared by law, Executive order or administrative order, whether or not they work on such holidays and, under the terms of the Leave Act of March 2, 1940, and section 14 of the annual leave regulations, supra, they may not

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be charged leave "where a nonwork day is ordered by the commanding officer of a station or in the case of a Federal holiday" (quoting from question b), except during a period an office may be closed for administrative reasons and the employees are specifically required by administrative action to take leave. See 19 Comp. Gen. 955. The same would apply to employees who may be classed as temporary under the civil service rules but not as temporary under the leave regulations, if they are properly classed as "regular employees" within the meaning of the holiday statute, whose compensation is paid at a rate per day, per hour, or on a piece-work basis, that is, those entitled to pay for holidays under the terms of Public Resolution No. 127. Compare 20 Comp. Gen. 411; id. 827.

Temporary employees whose compensation is fixed at a rate per day, per hour, or on a piece-work basis and not properly classed as "regular employees" (see 19 Comp. Gen. 511, the syllabus of which is quoted above) are not entitled to holiday pay under the provisions of Public Resolution No. 127. Payment may not be made to them for holidays by making a deduction from annual leave to their credit either in their first or subsequent months of service. In fact, the plain terms of the leave act of March 2, 1940, and section 14 of the annual leave regulations would preclude such action. See also 13 Comp. Gen. 394. Of course, this does not mean that the continuity of service of such temporary employees is broken in a month in which a holiday occurs for which they do not earn pay, precluding them from earning leave for that month. On the contrary, if the only absences of a temporary employee during the month comprise “Sundays which do not occur within a regular tour of duty, holidays, and all nonwork days established by Federal statute or by Executive or administrative order" (quoting from the act of March 2, 1940), the employee has served a "full month of service" within the meaning of section 14 of the annual leave regulations and is entitled to 22 days' leave for that month. Also, if a temporary employee is "laidoff" or furloughed without pay for lack of work or funds, he may "bridge over" such period with annual leave to his credit with the consent of the administrative office and leave would be earned for that month. Otherwise there would result a fractional month's service for which no leave would be earned. 12 Comp. Gen. 621; 18 id. 400; id. 596.

Question (c) is answered in the affirmative, the transfer being between two bureaus of the War Department. See 20 Comp. Gen. 332; id. 661.

The decision of November 21, 1939, B-6669, 19 Comp. Gen. 511, to which reference is made in question (d), the syllabus of which has been hereinbefore quoted, has not been overruled or modified. Paragraph

102, Regulations Governing Civilian Employees of the War Department, is the same as section 14 of the current annual leave regulations above quoted. There is no conflict between the decision and the regulation. The answer to question (b), supra, states the proper rules for their application.

Referring to question (e) the applicable decisions of this office are quoted or cited herein.

(B-17617)

ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS-ADVERTISING FOR BIDS AND GENERAL SCHEDULE OF SUPPLIES

Since neither the Administrative Office of the United States Courts nor the courts for which it serves as the administrative agency are in the executive branch of the Government the General Supply Schedule contracts have no mandatory application to their respective requirements for supplies, but such supplies should be so obtained in the interest of economy and good administration, provided the contractors will accept orders therefor.

The advertising for bids requirements of section 3709, Revised Statutes, are applicable to all purchases in excess of $50-the applicable statutory openmarket purchase limitation-made under appropriations for any of the courts for which the Administrative Office of the United States Courts serves as administrative agency.

Comptroller General Warren to the Director, Administrative Office of the U. S. Courts, August 6, 1941:

Consideration has been given your letter of June 4, 1941, as follows: Attached are copies of a letter with enclosures received from Mr. Willard L. Hart, Chief Clerk of the United States Court of Claims, raising certain questions with reference to the applicability of the provisions of Section 3709 of the United States Revised Statutes and the contracts executed by the Procurement Division of the Treasury Department, to purchases from the appropriation available to that Court.

We would appreciate receiving your views on the questions raised by Mr. Hart, not only as they affect the Court of Claims appropriation, but also the other appropriations made to the judiciary which are administered by this office. The Act of October 10, 1940, Public No. 842, 76th Congress, "To Consolidate Certain Exceptions to Section 3709 of the Revised Statutes and to Improve the United States Code," provides that Section 3709 shall not be construed to apply to any purchase or services authorized by any appropriation act for the Administrative Office of the United States Courts where the aggregate amount involved does not exceed the amount of $50.00. This is in keeping with the language of the appropriation "Miscellaneous Expenses, Administrative Office of the U. S. Courts" for the fiscal year 1941 and of the bill for the fiscal year 1942 as it now stands. However, it does not appear to be clear whether this act applies only to the appropriations for the operation of this office or to expenditures made by this office for the Federal Courts as well.

Specifically the questions for determination are:

1. Do the contracts executed by the Procurement Division of the Treasury Department cover the requirements of the Court of Claims, other United States Courts or of the Administrative Office of the United States Courts?

2. Are the provisions of Section 3709 R. S. applicable to purchases made from appropriations for the Court of Claims or other United States Courts?

3. If your answer to the second question is in the affirmative, what, if any exemptions from the provisions of Sec. 3709 R. S. are applicable to expenditures made by the Court of Claims or other United States Courts, or by the Administrative Office of the United States Courts from court appropriations?

The letter dated May 5, 1941, from the Chief Clerk of the Court of Claims, is in pertinent part as follows:

I desire to propound a question in reference to the expenditures under the appropriation, "Contingent Expenses, Court of Claims," and respectfully request that you obtain an official ruling thereon from the Comptroller General, in order that I may be guided in future purchases of supplies, etc., for the Court of Claims.

Section 142 of the Judicial Code (U. S. C. 247) provides as follows:

"The said clerk shall have authority when he has given bond as provided in the preceding section, to disburse, under the direction of the court, the contingent fund which may from time to time be appropriated for its use; and his accounts shall be settled by the General Accounting Office in the same way as the accounts of other disbursing agents of the Government are settled."

It appears to the undersigned that, construing this section alone, there would be no limitation whatsoever in reference to the amount which can be expended without the necessity of obtaining bids in the open market, nor is there any requirement concerning the making of purchases from the General Supply Schedule. The only requirement of this section is that the disbursement of this fund is under the direction of the court.

Prior to the Act of August 7, 1939, creating the Administrative Office of the United States Courts, most of the funds appropriated for the United States Courts were administered by the Department of Justice and there was placed a limitation of $25.00 on all purchases without the necessity of obtaining bids in the open market or purchasing articles from the General Supply Schedule.

In a decision of Comptroller Warwick to the Attorney General dated July 29, 1920, the question pertaining to the legislative, executive and judicial appropriation act for the fiscal year 1921 which provided that Section 3709 of the Revised Statutes shall not be construed to apply to any purchase or service rendered for the Department of Justice when the aggregate amount involved does not exceed the sum of $25.00. A decision was requested as to whether the provisions of the law, above stated, were applicable to the purchase of articles authorized by the Department of Justice for use in the offices of officials of United States courts. The decision held as follows:

"General laws and annual appropriation acts distinguish between the Department of Justice, which is part of the executive branch of the Government, and United States courts and their officers belonging to the judicial branch. However, in the matter of administration of their appropriations and general supervision of their expenditures, and for the purposes of administrative accounting, the courts and their officers are placed under the Department of Justice.

"A purchase made or service rendered for an official of a United States court may fairly be said to be a purchase or service for the Department of Justice, and I think that the statute was intended to be so construed. You are accordingly advised that it is applicable to purchases made for court officials of articles authorized by the Department of Justice under any appropriation administered by the Department of Justice."

My predecessor in office, J. Bradley Tanner, on July 12, 1926, received a letter from Lurtin R. Ginn, Assistant Comptroller General of the United States, wherein he stated that, in connection with suspensions in Mr. Tanner's accounts, information was requested concerning the application of Section 3709 of the Revised Statutes. It will be noted that Mr. Ginn did not give a formal decision but expressed merely his own views. He held, in substance, that he was satisfied in his own mind that the Court of Claims contingent appropriation is not restricted by the provisions of Section 3709 R. S. In a letter of the same date, July 12, 1926, to the Acting Chief of the Civil Division of the Department of Justice [General Accounting Office], Mr. Ginn held that the appropriation for contingent expenses, Court of Claims, is not administered by the Department of Justice and in view of Section 142 of the Judicial Code he did not see how Section 3709 R. S. could have any application to the purchase of supplies and services and also inasmuch as Section 3709 refers to departments. For your information I am enclosing herewith a copy of Mr. Ginn's letter to the Acting Chief of the Civil Division, attaching it as Exhibit 1.

This office on August 20, 1937, addressed a letter to the Procurement Division of the Treasury Department seeking a clearance for the purchase of a rug for

one of the Justice's chambers. The particular rug desired was one which was not on the Schedule and there were no rugs approximately meeting the specifications required for the desired rug. On September 2, 1937, the Acting Assistant Director of the Procurement Division, Honorable Robert LeFevre, addressed a letter to the undersigned relative to the clearance requested and I quote the second paragraph of Mr. LeFevre's letter:

"It is the opinion of this office that the contracts for supplies entered into by the Procurement Division do not cover the requirements of the Court of Claims, inasmuch as the authority for the making of such contracts relates to the Executive branch of the Government only."

It was, therefore, unnecessary to obtain a clearance for the purchase of the justice's rug.

It is needless for me to advise you that there is no intention on my part to take an arbitrary stand relative to the subject matter of this letter, and, on the contrary, it has been and is the custom of this office in all of its purchases of supplies or services in excess of $25.00 to purchase from the General Supply Schedule or to invite bids and to make awards to the lowest responsible bidder, and in good faith to endeavor to cooperate with and comply with the rules and regulations of the General Accounting Office and of your office.

*

As indicated in the Chief Clerk's letter, under the system of administration of the United States courts in operation prior to the effective date of the act of August 7, 1939, 53 Stat. 1223, creating the Administrative Office of the United States Courts, the appropriations for the courts, with few exceptions, were administered by the Department of Justice-one of such exceptions being the appropriation for contingent expenses of the Court of Claims, which was disbursed by the Chief Clerk of the Court under the direction of the Court, pursuant to section 142 of the Judicial Code, 28 U. S. C. 247. The answers to the questions presented in your letter depend largely upon the changes in such preexisting system of administration wrought by the said act of August 7, 1939.

The act provides, in part:

That the Judicial Code is hereby amended by adding at the end thereof a new chapter to be numbered XV and entitled "The Administration of the United States Courts," as follows:

"Chapter XV-The Administration of the United States Courts

"SEC. 302. There shall be at the seat of government an establishment to be known as the Administrative Office of the United States Courts, with a Director at the head thereof who shall be appointed by the Supreme Court of the United States and hold office at the pleasure of and be subject to removal by the aforesaid Court.

"SEC. 304. The Director shall be the administrative officer of the United States courts and shall have charge, under the supervision and direction of the conference of senior circuit judges, of—

"(1) All administrative matters relating to the offices of the clerks and other clerical and administrative personnel of the courts, but nothing contained in this chapter shall be construed as affecting the authority of the courts to appoint their administrative or clerical personnel, or the authority of the Attorney General respecting United States marshals and their deputies, United States attorneys and their assistants;

"(3) The disbursement, directly and through the several United States marshals as now provided by law, of the moneys appropriated for the maintenance, support, and operation of the courts;

"(4) The purchase, exchange, transfer, and distribution of equipment and supplies;