[Request for Decision on Acceptability of Late Bid]

B-202420 L/M, SEP 1, 1981

DIGEST: ANY PART OF EMPLOYEE'S CLAIM FOR HAZARDOUS DUTY PAY THAT ACCRUED MORE THAN 6 YEARS BEYOND ITS RECORDING IN GAO IS BARRED BY 31 U.S.C. 71A (1976). GAO IS WITHOUT AUTHORITY TO DISREGARD THIS STATUTE. HOWEVER, ERRONEOUS PAYMENTS OF SIMILAR CLAIMS COVERING MORE THAN 6 YEARS MADE BY AGENCY DUE TO ADMINISTRATIVE ERROR MAY BE WAIVED UNDER 5 U.S.C. 5584 (1976).

MR. GEORGE R. YETTER:

THIS IS IN RESPONSE TO YOUR CLAIM FOR RETROACTIVE HAZARDOUS DUTY PAY WHICH WAS DENIED BY OUR CLAIMS GROUP BECAUSE A PORTION OF YOUR INITIAL CLAIM ACCRUED MORE THAN 6 YEARS PRIOR TO BEING FILED IN THIS OFFICE. PROMISED YOU IN OUR LETTER OF JULY 8, 1981, THAT A THOROUGH REVIEW OF THE ENTIRE MATTER WOULD BE CONDUCTED. AFTER REVIEWING THE RECORD COMPOSED OF MATERIAL FURNISHED BY THE ARMY FINANCE AND ACCOUNTING CENTER IN INDIANAPOLIS, THE ARMY'S HARRY DIAMOND LABORATORIES, AND YOUR CORRESPONDENCE, WE AFFIRM OUR CLAIMS GROUP'S DETERMINATION THAT THE 6 YEAR STATUTE OF LIMITATIONS FOR FILING CLAIMS IN OUR OFFICE, 31 U.S.C. 71A (1976), CANNOT BE DISREGARDED AND THAT NO PART OF YOUR CLAIM ACCRUING BEFORE AUGUST 23, 1972 - 6 YEARS PRIOR TO THE RECEIPT OF YOUR CLAIM IN OUR OFFICE - MAY BE PAID.

WE REALIZE THAT YOUR CLAIM WAS FILED WITH YOUR AGENCY, THE HARRY DIAMOND LABORATORIES, AND THAT THE AGENCY, BY NOT ACTING UPON IT FOR A CONSIDERABLE TIME BEFORE TRANSMITTING IT HERE FOR PAYMENT, CAUSED A SUBSTANTIAL PART OF YOUR CLAIM TO BE BARRED BY OUR 6-YEAR STATUTE OF LIMITATIONS. HOWEVER, THE DATE OF RECORDING IN THIS OFFICE FOR THE PURPOSES OF TOLLING THE STATUTE OF LIMITATIONS IS THE DATE THE CLAIM IS ACTUALLY RECEIVED HERE. RANDALL W. CLEVELAND, B-178715, MAY 13, 1975. FILING A CLAIM WITH THE AGENCY DOES NOT TOLL THE RUNNING OF THE STATUTE, EVEN THOUGH THE DELAY AT THE AGENCY LEVEL IS THE FAULT OF THE AGENCY, NOT THE EMPLOYEE. THUS, WE ARE WITHOUT AUTHORITY TO DISREGARD THE PROVISIONS OF THE STATUTE OF LIMITATIONS AND WE ARE PRECLUDED FROM CONSIDERING YOUR CLAIM. FREDDIE L. BAKER, B-190841, DECEMBER 27, 1978.

YOU ALSO EXPRESSED INTEREST IN PAYMENTS MADE BY YOUR AGENCY ON SIMILAR CLAIMS MADE FOR HAZARDOUS DUTY WORK THAT COVERED A TIME PERIOD WHICH DATED BACK MORE THAN 6 YEARS BEYOND THE FILING OF THE CLAIM IN THE AGENCY OR OUR OFFICE. SUCH PAYMENTS WERE IN FACT MADE UPON ADVICE OF AGENCY COUNSEL, BUT THEY WERE THE RESULT OF AN ADMINISTRATIVE ERROR, AND THEY WERE ERRONEOUS. THE PAYMENTS WOULD HAVE BEEN PROPER BUT FOR THE DELAY IN FILING THE CLAIMS, AND THE RECORD SHOWS NO INDICATION OF FRAUD, MISREPRESENTATION, FAULT, OR LACK OF GOOD FAITH ON THE PART OF THE EMPLOYEES WHO FILED THE SIMILAR CLAIMS. IF THOSE SIMILAR CLAIMS WERE PRESENTED TO OUR OFFICE NOW FOR THE FIRST TIME FOR PAYMENT, WE WOULD AUTHORIZE PAYMENT ONLY FOR THE 6-YEAR PERIOD PRECEDING THEIR RECORDING - AS WE DID IN YOUR CASE. HOWEVER, WE AGREE WITH YOUR AGENCY'S RECOMMENDATION THAT IT WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE TO RECOVER THE ERRONEOUS PAYMENTS AT THIS POINT. WE HAVE THEREFORE WAIVED THEM UNDER 5 U.S.C. 5584 (1976).

WHILE WE CAN APPRECIATE YOUR FEELINGS IN THIS MATTER, WE HAVE NO ALTERNATIVE CONCERNING APPLICATION OF 31 U.S.C. 71A (1976), TO YOUR CLAIM. ACCORDINGLY, YOUR CLAIM MAY NOT BE CONSIDERED BY THIS OFFICE.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858)

RETURNED IS YOUR FILE Z-2813368. BY LETTER OF TODAY TO MR. YETTER, COPY ATTACHED, WE ARE INFORMING HIM THAT THE CLAIMS GROUP'S ACTION OF BARRING ANY PART OF HIS CLAIM THAT ACCRUED MORE THAN 6 YEARS PRIOR TO ITS RECEIPT IN THIS OFFICE IS CORRECT.

WITH REGARD TO YOUR QUESTION CONCERNING THE ERRONEOUS RETROACTIVE HAZARDOUS DUTY PAYMENTS MADE TO OTHER CLAIMANTS BY THE HARRY DIAMOND LABORATORIES COVERING A PERIOD OF MORE THAN 6 YEARS FROM THE DATE THE CLAIMS ACCRUED TO THE DATE THEY WERE PAID, IT IS OUR VIEW THAT THE PAYMENTS NEED NOT BE RECOUPED AND SHOULD BE WAIVED UNDER 5 U.S.C. 5584 (1976). A COPY OF A LIST DENOTING THE INDIVIDUALS RECEIVING THE PAYMENTS AND THE AMOUNTS WAS ATTACHED TO THE SUBMISSION.

ALTHOUGH A PAYMENT OF ANY PART OF A CLAIM ACCRUING MORE THAN 6 YEARS BEFORE ITS PAYMENT IS AN ERRONEOUS PAYMENT THAT MAY BE COLLECTED BACK FROM THE EMPLOYEE (SEE B-195138-O.M., AUGUST 23, 1979), THE ERRONEOUS PAYMENTS IN THIS CASE MAY BE CONSIDERED UNDER THE WAIVER PROVISIONS OF 5 U.S.C. 5584 (1976), SINCE THERE IS NO INDICATION OF FRAUD, MISREPRESENTATION, FAULT, OR LACK OF GOOD FAITH ON THE PART OF THE PAYEES AND SINCE THE PAYMENTS WERE THE RESULT OF ADMINISTRATIVE ERROR. SEE MARINE OFFICERS, B-184947, MARCH 21, 1978; THEODORE F. MORAN, B-195213, JULY 7, 1980; DR. KEITH A. BAKER, B-186758, MARCH 23, 1977.

ACCORDINGLY, IN THE CASES OF THE INDIVIDUALS WHO HAVE BEEN IDENTIFIED AS RECEIVING ERRONEOUS PAYMENTS, WAIVER SHOULD BE GRANTED. YOU SHOULD ADVISE THE ARMY ACCOUNTING AND FINANCE CENTER OF THIS ACTION.

ATTACHMENT

THE COMPTROLLER GENERAL

WE ARE FORWARDING THE FILE PERTAINING TO THE CLAIM OF MR. GEORGE YETTER FOR RETROACTIVE HAZARDOUS DUTY PAY INCIDENT TO HIS EMPLOYMENT AT THE HARRY DIAMOND LABORATORIES. WE HAVE ADVISED MR. YETTER THAT THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AS AMENDED, BAR CONSIDERATION OF HIS CLAIM PRIOR TO AUGUST 23, 1972 AS HIS CLAIM WAS FIRST RECEIVED IN OUR OFFICE ON AUGUST 23, 1978.

WHILE CONSIDERING THIS CLAIM, IT WAS DISCOVERED THAT IN DECEMBER 1977, PAYMENT WAS ALLOWED RETROACTIVE TO JULY 1, 1969 OF CLAIMS FOR HAZARDOUS DUTY PAY TO 71 OTHER EMPLOYEES OF THESE LABORATORIES. PAYMENT WAS ALLOWED RETROACTIVE TO THAT DATE IN ACCORDANCE WITH INSTRUCTIONS THE LABORATORIES RECEIVED FROM THEIR LEGAL OFFICE. (SEE COPY OF DF DATED SEPTEMBER 1, 1976, ENCLOSED IN THE FILE.) HOWEVER, SINCE THESE CLAIMS WERE NEVER FILED IN OUR OFFICE, IT APPEARS PAYMENT OF THE PORTIONS OF THE CLAIMS THAT ACCRUED PRIOR TO DECEMBER 1971 WAS A VIOLATION OF THE BARRING ACT CITED ABOVE.

BECAUSE OF THE LENGTH OF TIME THAT HAS EXPIRED SINCE THESE PAYMENTS WERE MADE, AND BECAUSE THEY WERE MADE TO EMPLOYEES THE MAJORITY OF WHICH ARE NOW RETIRED AND/OR DECEASED, THE FILE IS FORWARDED FOR YOUR CONSIDERATION AND INSTRUCTIONS AS TO WHAT ACTIONS, IF ANY, SHOULD BE TAKEN REGARDING RECOUPMENT OF ANY ERRONEOUS PAYMENTS.