B-141832, FEB. 16, 1960

B-141832, FEB. 16, 1960

TO THE SECRETARY OF THE ARMY:

BY LETTER OF JANUARY 26, 1960, REFERENCE ENGLS-AFGHANISTAN, THE ASSISTANT CHIEF OF ENGINEERS FOR REAL ESTATE REQUESTED OUR DECISION REGARDING APPROVAL OF THE AMENDMENT TO LEASE NO. W DA 92-021 ID-21, WHICH THE UNITED STATES ARMY MILITARY ATTACHE IN KABUL, AFGHANISTAN, ENTERED INTO ON DECEMBER 1, 1958, WITH GULAM MOHAMMED, FOR PREMISES TO BE USED AS A RESIDENCE FOR A MEMBER OF THE STAFF OF THE U.S. ARMY ATTACHE OFFICE IN KABUL.

THE LEASE IS FOR THE TERM DECEMBER 1, 1958, THROUGH NOVEMBER 30, 1959, AND PROVIDES THAT UNLESS TERMINATED BY THE GOVERNMENT BY GIVING 30 DAYS' NOTICE IN WRITING TO THE LESSOR, IT SHALL REMAIN IN FORCE THEREAFTER FROM YEAR TO YEAR BUT IN NO EVENT TO EXTEND BEYOND NOVEMBER 30, 1960. THE RECORD SHOWS THAT THE LEASE HAS NOT BEEN TERMINATED AND IS STILL IN FORCE.

PARAGRAPH 4 OF THE LEASE PROVIDES FOR PAYMENT OF RENT AT THE RATE OF $96.15 OR THE EQUIVALENT IN AFGHANIS PER MONTH, WITH PAYMENT TO BE MADE AT THE BEGINNING OF EACH SIX MONTHS. EFFECTIVE JUNE 1, 1959, PARAGRAPH 4 OF THE LEASE WAS AMENDED BY THE U.S. ARMY ATTACHE, AT THE REQUEST OF THE LESSOR, TO PROVIDE FOR PAYMENT OF RENT AT THE RATE OF 5,000 AFGHANIS PER MONTH, RATHER THAN UNITED STATES DOLLARS OR THE EQUIVALENT IN AFGHANIS. THE RECORD SHOWS THAT RENTAL PAYMENTS HAVE BEEN MADE TO THE LESSOR UNDER THE TERMS OF THE AMENDED LEASE FOR THE PERIODS JUNE 1, 1959, THROUGH NOVEMBER 30, 1959, AND DECEMBER 1, 1959, THROUGH MAY 31, 1960, IN THE AMOUNT OF 30,000 AFGHANIS FOR EACH SIX MONTH PERIOD.

UNDER THE TERMS OF THE ORIGINAL LEASE, THE RENTAL PAYMENT FOR SIX MONTHS RENT AMOUNTS TO $576.90. HOWEVER, DUE TO THE EXCHANGE RATE IN EFFECT, EACH RENTAL PAYMENT OF 30,000 AFGHANIS MADE UNDER THE TERMS OF THE AMENDED LEASE AMOUNTED TO $612.24. THEREFORE, SINCE EACH SIX MONTH RENTAL PAYMENT IS INCREASED $35.34 UNDER THE TERMS OF THE AMENDED LEASE, THE EFFECT OF THE ACTION IN CHANGING THE RENTAL PAYMENTS UNDER THE LEASE FROM UNITED STATES DOLLARS OR THEIR EQUIVALENT IN AFGHANIS TO AFGHANIS IS TO INCREASE THE LIABILITY OF THE UNITED STATES.

THE AMENDMENT IN QUESTION RECITES THAT IT IS "DEEMED IN THE BEST INTERESTS OF BOTH PARTIES" THAT THE GOVERNMENT PAY RENTAL AT THE RATE OF 5,000 AFGHANIS PER MONTH. THE REASON WHY PAYMENT OF THIS BASIS IN LIEU OF THAT PROVIDED IN THE ORIGINAL AGREEMENT, WAS CONSIDERED IN THE INTEREST OF THE GOVERNMENT IS NOT SHOWN, AND CONSEQUENTLY THE RECORD DOES NOT DEFINITELY ESTABLISH CONSIDERATION MOVING TO THE GOVERNMENT TO SUPPORT THE AMENDMENT, WHICH GENERALLY IS REQUIRED. ON THE OTHER HAND IT IS STATED IN LETTER OF JANUARY 26, 1960, FROM THE ASSISTANT CHIEF OF ENGINEERS FOR REAL ESTATE THAT THE ARMY MILITARY ATTACHE IN KABUL REPORTS THAT ANY ATTEMPT TO COLLECT FROM THE LESSOR THE ADDITIONAL RENTAL PAYMENTS ALREADY MADE OR TO REDUCE FUTURE PAYMENTS TO BE MADE WOULD CREATE A MOST DIFFICULT PROBLEM. IN VIEW OF THIS REPRESENTATION, AND CONSIDERING THE SMALL AMOUNT OF THE INCREASED RENTAL, TOGETHER WITH THE FACT THAT THE AMENDMENT HAS ALREADY BEEN EXECUTED, WE WILL NOT IN THIS PARTICULAR INSTANCE QUESTION THE RENTAL PAYMENTS AT THE RATE PROVIDED FOR IN THE AMENDMENT.