B-145826, MAY 23, 1961

B-145826: May 23, 1961

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YOU HAVE QUESTIONED THE PROPRIETY OF PAYMENT AMOUNTING TO $255.60 FOR THOSE 12 MAN DAYS ON THE BASIS THAT TIME SPENT AT THE WORK SITE AFTER RECEIPT BY THE CONTRACTOR OF THE REMOVAL DIRECTIVE SHOULD NOT BE REGARDED AS TIME SPENT IN PERFORMANCE OF SERVICES UNDER THE CONTRACT. PROVIDES A SUBSTANTIAL BASIS FOR THE CONTRACTING OFFICER'S DETERMINATION THAT THE INDIVIDUALS IN QUESTION DO NOT MEET THE ESTABLISHED STANDARDS AND THAT THEIR REMOVAL WAS IN THE BEST INTEREST OF THE GOVERNMENT. IT IS OUR VIEW THAT NO AUTHORITY EXISTS FOR PAYMENT OF THE AMOUNT IN QUESTION.

B-145826, MAY 23, 1961

TO MAJOR R. W. MASTERS:

YOUR REQUEST FOR AN ADVANCE DECISION PURSUANT TO 31 U.S.C. 74, CONCERNING THE PROPRIETY OF PAYMENT TO THE BALTIMORE NATIONAL BANK AS ASSIGNEE OF THE UNITEC CORPORATION FOR SERVICES UNDER AIR FORCE CONTRACT 33 (600/-42088, HAS BEEN FORWARDED TO US BY LETTER OF MAY 8, 1961, WITH ENCLOSURES, REFERENCE AFAAF-5.

THE CONTRACT PROVIDES FOR THE FURNISHING OF QUALIFIED INSTRUCTORS TO GIVE ON THE JOB TRAINING TO AIR FORCE ENLISTED PERSONNEL ON THE PROPER OPERATION, MAINTENANCE AND REPAIR OF COMPLEX ELECTRONIC EQUIPMENT. THE CONTRACT FURTHER PROVIDES FOR PAYMENT ON A PER MAN DAY OF SERVICE BASIS. UNDER PARAGRAPH 19 (H) OF THE GENERAL PROVISIONS OF THE CONTRACT THE CONTRACTING OFFICER MAY REQUIRE THE REMOVAL OF ANY OF THE CONTRACTOR'S EMPLOYEES WHEN HE FINDS SUCH ACTION TO BE IN THE BEST INTEREST OF THE GOVERNMENT.

THE CONTRACTING OFFICER DETERMINED THAT TWO OF THE CONTRACTOR'S EMPLOYEES DID NOT MEET THE STANDARDS ESTABLISHED AND, PURSUANT TO PARAGRAPH 19 (H), DIRECTED THEIR REMOVAL. THE ASSIGNEE HAS SUBMITTED VOUCHERS FOR PAYMENT UNDER THE TERMS OF THE CONTRACT, INCLUDING 1 MAN DAY OF SERVICE FOR 1 OF THE INDIVIDUALS AND 11 MAN DAYS OF SERVICE FOR THE OTHER AFTER THE CONTRACTOR HAD BEEN DIRECTED TO REMOVE THEM. YOU HAVE QUESTIONED THE PROPRIETY OF PAYMENT AMOUNTING TO $255.60 FOR THOSE 12 MAN DAYS ON THE BASIS THAT TIME SPENT AT THE WORK SITE AFTER RECEIPT BY THE CONTRACTOR OF THE REMOVAL DIRECTIVE SHOULD NOT BE REGARDED AS TIME SPENT IN PERFORMANCE OF SERVICES UNDER THE CONTRACT.

A COMPARISON OF THE QUALIFICATIONS IN THE CONTRACT FOR INSTRUCTOR PERSONNEL WITH THE ACTUAL TRAINING AND EXPERIENCE OF THE TWO INDIVIDUALS INVOLVED, TOGETHER WITH THE ANALYSIS OF THE SHORTCOMINGS OF THE INDIVIDUALS FROM THE USING COMMAND, PROVIDES A SUBSTANTIAL BASIS FOR THE CONTRACTING OFFICER'S DETERMINATION THAT THE INDIVIDUALS IN QUESTION DO NOT MEET THE ESTABLISHED STANDARDS AND THAT THEIR REMOVAL WAS IN THE BEST INTEREST OF THE GOVERNMENT. THEREFORE, AND SINCE THE CONTRACT CONTEMPLATES PAYMENT ON THE BASIS OF SERVICES RENDERED, IT IS OUR VIEW THAT NO AUTHORITY EXISTS FOR PAYMENT OF THE AMOUNT IN QUESTION.

SINCE THE $255.60 SHOULD PROPERLY BE REGARDED AS NOT HAVING BEEN EARNED, THE ASSIGNEE HAS NO BETTER CLAIM FOR THE AMOUNT THAN DOES THE CONTRACTOR.