B-134618, MAR. 31, 1958

B-134618: Mar 31, 1958

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SAPIA-BOSCH AND THE REMUNERATION HE RECEIVES FOR SERVICES AS AN ESCORT INTERPRETER UNDER A CONTRACT WITH THE DEPARTMENT OF STATE ARE SUBJECT TO THE LIMITATIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30. THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES. AGREES TO RENDER SERVICES FOR WHICH HE IS QUALIFIED. THE SCHEDULE RATE FOR ESCOURT INTERPRETER SERVICE IS SHOWN AS $20 PER DAY. THERE IS NOT THE DEGREE OF SUPERVISION THAT OTHERWISE WOULD BE INVOLVED IN THE NORMAL EMPLOYER-EMPLOYEE RELATIONSHIP. SINCE THE ESCORT-INTERPRETER SERVICES ARE RENDERED TO GROUPS OF FOREIGN GRANTEES WHO ARE ON TOURS IN THIS COUNTRY. SAYS AS FOLLOWS: "THE NATURE OF THE ASSIGNMENTS IS SUCH THAT VERY LITTLE DIRECT SUPERVISION OF THE CONTRACTOR IS POSSIBLE.

B-134618, MAR. 31, 1958

TO LIEUTENANT COLONEL N. P. HANNA, FC:

YOUR LETTER OF NOVEMBER 14, 1957, WITH ENCLOSURES, FILE NO. FINCS-B 201 SAPIA-BOSCH, TIMOTEO A. 0 9 805, FORWARDED TO OUR OFFICE ON DECEMBER 6, 1957, BY THE CHIEF OF FINANCE, FILE FINEM 201, REQUESTS AN ADVANCE DECISION UPON THE QUESTION WHETHER THE RETIRED PAY OF COLONEL TIMOTEO A. SAPIA-BOSCH AND THE REMUNERATION HE RECEIVES FOR SERVICES AS AN ESCORT INTERPRETER UNDER A CONTRACT WITH THE DEPARTMENT OF STATE ARE SUBJECT TO THE LIMITATIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A.

SECTION 212 OF THE 1932 ACT, AS AMENDED, PROVIDES:

"/A) AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN TITLE 37, AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $10,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $10,000 PER ANNUM SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY, WHICHEVER HE MAY ELECT. AS USED IN THIS SECTION THE TERM "RETIRED PAY" SHALL BE CONSTRUED TO INCLUDE CREDITS FOR ALL SERVICE THAT LAWFULLY MAY ENTER INTO THE COMPUTATION THEREOF.

"/B) THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY, PLUS CIVILIAN PAY, AMOUNTS TO LESS THAN $10,000: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO ANY REGULAR OR EMERGENCY COMMISSIONED OFFICER RETIRED FOR DISABILITY (1) INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES, OR (2) CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING AN ENLISTMENT OR EMPLOYMENT AS PROVIDED IN VETERANS REGULATION NUMBERED 1 (A), PART I PARAGRAPH I. * * *"

ARTICLE I OF THE CONTRACT PROVIDES THAT "THE CONTRACTOR, IF AVAILABLE, AGREES TO RENDER SERVICES FOR WHICH HE IS QUALIFIED, WHEN AND AS REQUIRED BY THE DEPARTMENT, AND SHALL BE PAID BY THE DEPARTMENT FOR THE RENDERING OF SATISFACTORY SERVICES IN ACCORDANCE WITH THE SCHEDULE OF RATE ATTACHED HERETO.' THE SCHEDULE RATE FOR ESCOURT INTERPRETER SERVICE IS SHOWN AS $20 PER DAY. ALSO, WHILE THE CONTRACT PROVIDES FOR DETAILED INSTRUCTIONS REGARDING THE WORK TO BE PERFORMED AND FOR APPROPRIATE INSPECTION OF THE SERVICES RENDERED, THERE IS NOT THE DEGREE OF SUPERVISION THAT OTHERWISE WOULD BE INVOLVED IN THE NORMAL EMPLOYER-EMPLOYEE RELATIONSHIP, SINCE THE ESCORT-INTERPRETER SERVICES ARE RENDERED TO GROUPS OF FOREIGN GRANTEES WHO ARE ON TOURS IN THIS COUNTRY. RELATIVE THERETO THE DEPARTMENT OF STATE IN ITS REPORT TO US DATED MARCH 20, 1958, SAYS AS FOLLOWS:

"THE NATURE OF THE ASSIGNMENTS IS SUCH THAT VERY LITTLE DIRECT SUPERVISION OF THE CONTRACTOR IS POSSIBLE. HE IS BRIEFED PRIOR TO THE BEGINNING OF HIS ASSIGNMENT AND RENDERS A REPORT AT THE END. IF SPECIAL PROBLEMS ARISE DURING THE COURSE OF HIS ASSIGNMENT, THE CONTRACTOR MAY CALL OR WRITE FOR INSTRUCTIONS ALTHOUGH THIS HAPPENS INFREQUENTLY. ALL EQUIPMENT, SUPPLIES AND WORKING SPACE ARE THE RESPONSIBILITY OF THE CONTRACTOR ALTHOUGH THE NATURE OF THE WORK ACTS TO MINIMIZE THE IMPORTANCE OF THIS FACTOR OF THE CONTRACTUAL RELATIONSHIP. THE SERVICES OBTAINED UNDER THE CONTRACTS ARE DEFINITELY INTERMITTENT IN CHARACTER. THE REMUNERATION INVOLVED IS BASED ON THE TOTAL SERVICE TO BE PERFORMED, I.E., RENDERING ESCORT INTERPRETER SERVICES TO A PARTICULAR INDIVIDUAL OR GROUP OF INDIVIDUALS FOR A SPECIFIC PERIOD. HOWEVER, SINCE THE PERIODS INVOLVED IN INDIVIDUAL CASES VARY CONSIDERABLY, THE ONLY PRACTICABLE METHOD FOR THE DETERMINATION OF REMUNERATION IS ON A DAILY RATE BASIS. SUCH A BASIS IS PROVIDED IN THE CONTRACTS.

"IT IS OUR CONTENTION THAT THE CONTRACTUAL SERVICES ARE NON-PERSONAL IN NATURE AND THE CONTRACTOR OWES NO DUTY TO THE GOVERNMENT OTHER THAN SPECIFIC PERFORMANCE UNDER THE CONTRACT, THE TRANSACTION BEING CLEARLY ANALOGOUS TO THE PROCURING AND DELIVERY OF TANGIBLE ARTICLES PURSUANT TO A CONTRACT OF SALE. * * *

"SINCE THE SERVICES OBTAINED UNDER CONTRACTS ARE ON AN INTERMITTENT AND TEMPORARY BASIS, PRACTICALLY ALL OF THE CONTRACTORS HAVE OTHER SOURCES OF INCOME. IT WOULD NOT BE FEASIBLE UNDER THESE CIRCUMSTANCES TO REQUIRE THE CONTRACTOR TO HOLD HIMSELF IN READINESS TO PROVIDE SERVICES WHEN DEMANDED, PARTICULARLY SINCE SOME ARE USED SO INFREQUENTLY. FOR THIS REASON THE PHRASE "IF AVAILABLE" WAS INSERTED IN ARTICLE I OF THE CONTRACTS. PRACTICE, NO FORMAL DEMANDS ARE MADE ON THE CONTRACTORS TO PROVIDE SERVICES. WHEN SERVICES ARE REQUIRED, INFORMAL INQUIRIES ARE MADE UNTIL A CONTRACTOR IS FOUND THAT IS AVAILABLE TO THIS EXTENT, IT COULD BE SAID THAT THE CONTRACTOR HAS THE RIGHT TO REFUSE TO PERFORM.'

THE DEPARTMENT ALSO POINTS OUT THE WORKLOAD OF ESCORT-INTERPRETER WORK IS SEASONAL AND NOT SUSCEPTIBLE OF EXACT PLANNING; THAT MANY OF THESE CONTRACTORS ARE FOR "STANDBY PURPOSES; " AND THAT SOME HAVE NEVER ACTUALLY BEEN USED AND OTHERS ARE USED INFREQUENTLY. ADDITIONALLY, THE ADMINISTRATIVE OFFICE SAYS THAT PAYMENTS UNDER THE CONTRACTS ARE MADE AGAINST INDIVIDUAL VOUCHERS SUBMITTED BY THE CONTRACTOR; THAT NEITHER INCOME NOR F.I.C.A. TAXES ARE WITHHELD; AND THAT NO OATH OF OFFICE IS TAKEN.

IN THESE CIRCUMSTANCES MR. SAPIA-BOSCH IS TO BE CONSIDERED AS AN INDEPENDENT CONTRACTOR NOT SUBJECT TO THE LIMITATIONS OF SECTION 212 OF THE 1932 ACT, AS AMENDED.

THEREFORE, THE VOUCHER REPRESENTING THE RETIRED PAY OF MR. SAPIA BOSCH FOR NOVEMBER 1957, WHICH IS RETURNED HEREWITH, MAY BE PAID IF OTHERWISE CORRECT.