means of accomplishing an end which is fully consistent with the statutes prescribing the functions of the Department of Justice. 3. Availability of appropriated funds A separate question is the existence of appropriations which may be used to pay the private attorneys. Of course it is necessary to comply with 31 U.S.C. 628, which provides as follows: Except as otherwise provided by law, sums appropriated for the various branches of expenditure in the public service shall be applied solely to the objects for which they are respectively made, and for no others. Since it seems likely that some of the contracts relating to the defense of civil actions will entail work extending beyond the present fiscal year, it will also be necessary to take account of 31 U.S.C. 665 (a) and 712a, which read as follows: S 665. (a) Appropriations. Expenditures or contract obligations in excess No officer or employee of the United States S 712a. Balances of appropriations; expenditures. Except as otherwise provided by law, all bal- In cases involving multi-year contracts, the courts seem to have given a strict interpretation to the phrase "authorized by law" in 5 665(a), requiring explicit statutory sanction rather than the general authorization which would suffice under 41 U.S.C. 11(a).10/ See, e.g., Leiter v. United States, 271 U.S. 204, 206 (1926) (leases for tera of four years).11/ Some decisions of the Comptroller General would seem to suggest that, if the present contracts are not supported by multi-year appropriations, they would not be binding as to work performed in subsequent fiscal years, e.g., 42 Comp. Gen. 272 (1962). On the other hand, a recent decision, which should be analogous, held that the contractual obligation for payment of court-appointed attorneys arises at the time of appointment and that, even though part of the performance may occur in later fiscal years, the entire payment is chargeable to the fiscal year in which the appointment was made. 50 Comp. Gen. 589 (1971). We have not attempted to resolve the issues relating to 31 U.S.C. 665(a) and 712a, but bring them to your attention for whatever action you think necessary. This will depend, of course, upon such factors as the expected cost of the contracts, the adequacy of current appropriations, the feasibility of modifying the contracts (e.g., by providing for a fiscal year limit, subject to renewal), and the feasibility of obtaining a supplemental appropriation. 10/ The phrase "authorized by law" is used in many statutes, and it does not necessarily have the same meaning in each context. 11/ The Laiter case is an example of the tendency to lump together the predecessors of 41 U.S.C. 11(a) and 31 U.S.C. 655(a) and 712a. See also 42 Comp. Gen. 272, 274-5 (1962). In our opinion, however, the issues raised by 41 D.S.C. 11(a) and by the two latter statutes are entirely separate. -3 Exhibit 4: Memorandum of Antonin Scalia Regarding Employment of Outside Counsel, March 15, 1977 1 Part I of this memorandum responds to the second and third questions raised in your memorandum of January 22, 1976; part II responds to the fourth question. The matter of the Department's authority to enter into the present contracts with private attorneys is dealt with in my menorandum of March 4, 1976. I. Requirements concerning form and contents Your second and third questions relate to the requirements of Federal procurement law concerning the form and contents of the contracts involved here and the ability of the Department to waive such requirements. The per Our views may be summarized as follows: tinent statute, 41 U.S.C. 254 (a), leaves to the discretion of the agency head the form of negotiated contracts. Regarding contracts for personal or professional services, it does not appear that GSA's Federal Procurement Regulations require the use of particular forms of contract. Nonetheless, because of the unilateral nature of the written contracts with the private attorneys (i.e., a letter from the Civil Division) and because of the omission of certain necessary provisions, consideration should be given to preparing modified contracts and having them executed by the respective private attorneys, as well as by the Department. Che subject which should be dealt with explicitly is conditions for termination of the contracts by the Department. The GSA procurement regulations require, with regard to negotiated contracts, that consideration be given to the maximum number of qualified sources. This requirement 1 Received by subcommittee on January 26, 1978. See exhibit 27 at p. 391, exhibit 28 at p. 398, exhibit 29 at p. 411, and exhibit 30 at p. 1054. appears to be applicable in the prosent circumstances, and it would seen advisable to inform GSA of the actions taken by the Department. The axisting contracts fail to contain several provisions which are required by statute. Of these, the most important is the clause required by 41 C.S.C. 254 (c), concerning examination by the Comptroller General of certain records of the contractor. There does not appear to be any basis for waiver of this and related statutory requirements. A. Form of contracts 41 U.S.C. 252 (c) sets forth certain circumstances in which Federal procurement may be accomplished through negotiation, without advertising. One circumstance is when the contract is "for personal or professional services." 1/ 41 U.5.C. 252 (c)(4). Another is when the contract is "for .. services for which it is impracticable to secure competition." 41 U.S.C. 252(c)(10). While the terms of both these exceptions seem to apply here, the GSA regulations indicate that reliance should be placed upon the latter. 2/ i 1/ The phrase "personal or professional services" is not defined in the statute. The CSA Federal Procurement Regulations state that personal services "must be performed by an individual contractor in person (not by a concern) and that professional services may be performed either by an individual contractor in person or a concern. 41 CFR 1-3.204 (a). 2/ The GSA regulations state that the provision regarding personal or professional services does not authorize the procurement by negotiation of any types of services covered by any of the other provisions concerning circumstances which pernit negotiation. 41 or $ 1-3.204 (5). Some of the contracts here might fall under 5 1-3.203, which relates to contracts the aggregate amount of which does not exceed $10,000. The difficulty, however, is that normally the question of authority must be determined at the pre-award stage and, regarding many of the contracts involved here, it was uncertain initially whether the cost would exceed $10,000. (Cont'd. on Page 3) -3 41 U.S.C. 254 (a) provides that, with exceptiong not pertinent here, "contracts negotiated pursuant to section 252 (c) may be of any type which in the opinion of the agency head will promote the best interests of the Government,” The GSA regulations set forth several types of negotiated coptracts; the differences among the types relate largely to compensation or responsibility for costs. See 41 CFR § 1-3.400. None of the types corresponds to the existing agreements with the private attor neys (i.e., the Civil Division letters). 3/ It should be noted, however, that generally speaking the Federal Procurement Regulations do not pertain to pro curement of personal or professional services. 4/ It should be proper to conclude, therefore, that here the only requirement concerning contract form is that the agency head' determine that the form used “will promote the best interests of the Government." 41 0.3.C. 25÷(a). 2/ (Cont'd. from Page 2) As indicated above, another provision which seems applicable is § 1-3.210, which authorizes negotiation of contracts for services "for which it is impracticable to secure competition." Sen Page 5, infra. Thus, in view of § 1-3.204(b), reliance should be placed upon the provision concerning "impracticability" rather than that regarding professional services. The main difference between the two provisions is that the section concerning izpracticability requires the making of a formal determination and findings justifying use of the authority. See 41 CFR § 1-3.210(5). 3/ lost similar is the labor-hour contract, described in 5 1-3.405-2. But see 5 1-3.491-1(b) concerning the degree of Government supervision of contract performance. / See, e.g., 41 CFR 1-1.002 which states that the Fedcral Procurement Regulations apply to the procurement of personal property and "nonpersonal services" and the lease of real estate. The underlying statute, the Federal Property and administrative Services Act of 1949, defines "nonpersonal services" to mean "such contractual services, other than personal and professional services, as the Adinistrator [of General Services] shall designate." 40 U.S.C. 472(j). |