B-146259, JUL. 13, 1961

B-146259, JUL. 13, 1961

TO MAJOR J. W. MOHER, FG, U.S. ARMY:

UNDER DATE OF JUNE 26, 1961, THE OFFICE OF THE CHIEF OF FINANCE AT INDIANAPOLIS, INDIANA, FORWARDED HERE YOUR LETTER OF MARCH 20, 1961, WITH ENCLOSURES, REQUESTING A DECISION BY OUR OFFICE CONCERNING THE PROPRIETY OF CERTAIN PAYMENTS WHICH HAVE BEEN MADE OR ARE TO BE MADE IN THE FUTURE UNDER CONTRACT NO. DA-29-040-ORD-2497, DATED DECEMBER 28, 1960, ENTERED INTO BETWEEN THE DEPARTMENT OF THE ARMY AND FLOYD G. ADAMS, THE LATTER AN EMPLOYEE OF THE WHITE SANDS MISSILE RANGE. THERE HAS ALSO BEEN RECEIVED YOUR LETTER DATED JUNE 6, 1961, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION CONCERNING PAYMENT ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF FLOYD G. ADAMS IN THE AMOUNT OF $1,537.20, FOR SERVICES ALLEGEDLY RENDERED UNDER THE INDICATED CONTRACT DURING THE PERIOD MAY 1 THROUGH MAY 31, 1961.

IT WAS STATED IN YOUR LETTER OF MARCH 20, 1961, AMONG OTHER THINGS, THAT THE WHITE SANDS MISSILE RANGE EXTENDS OVER AN AREA OF APPROXIMATELY 4,000 SQUARE MILES; THAT THE TERRAIN INCLUDES MOUNTAINS RANGING UP TO 8,500 FEET; ROCKY, ROLLING, ARID DESERT AREAS AND HEAVILY TIMBERED, MOUNTAIN SLOPES; AND THAT PERSONNEL OF THE RANGE INSPECTION BRANCH ARE REQUIRED TO PATROL, AT VARIOUS TIMES, EVERY AREA OF THE RANGE AND TO CLEAR PERSONNEL AND STRAY CATTLE THEREFROM. THE CATTLE ARE THE PRIVATE PROPERTY OF LANDOWNERS RESIDING IMMEDIATELY ADJACENT TO THE RANGE. IT WAS REPORTED FURTHER THAT THE WHITE SANDS MISSILE RANGE IS A NATIONAL INTEGRATED MISSILE RANGE WHICH SUPPORTS ALL RANGE USERS INCLUDING ALL DEPARTMENT OF DEFENSE AGENCIES, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, THE ATOMIC ENERGY COMMISSION AND OTHER GOVERNMENTAL AGENCIES. THE WHITE SAND MISSILE RANGE CONSISTS ORGANIZATIONALLY OF OPERATIONAL ELEMENTS ENGAGED IN RESEARCH, DEVELOPMENT, TESTING, AND EVALUATING OF GUIDED MISSILE SYSTEMS, ROCKETS, TARGET DRONES, ETC. IT WAS STATED ALSO THAT THE ESTIMATED TIME REQUIRED TO ORIENT PERSONNEL ENGAGED IN PATROLLING, INSPECTING AND CLEARING THE RANGE IS APPROXIMATELY FOUR TO SIX MONTHS, AND THAT IF HORSES AND EQUIPMENT WERE CONTRACTED FROM PERSONS OTHER THAN CIVIL SERVICE EMPLOYEES, CONSIDERABLE DOUBT EXISTS WHETHER SUPERVISORY PERSONNEL OF THE RANGE INSPECTION BRANCH COULD EXERCISE SUFFICIENT AUTHORITY TO ASSURE CONSTANT AVAILABILITY OF THE HORSES AND EQUIPMENT.

THE RECORD SHOWS THAT BY INVITATION FOR BIDS NO. ORD-29-040-61-100, DATED DECEMBER 5, 1960, THE WHITE SANDS MISSILE RANGE SOLICITED BIDS FOR (1) FURNISHING PICK-UP TRUCKS WITH HORSE TRAILERS, AND (2) SADDLE HORSES WITH ALLIED EQUIPMENT. IT WAS REPORTED THAT THE CITED INVITATION FOR BIDS WAS POSTED IN NUMEROUS PUBLIC PLACES; THAT COPIES THEREOF WERE SENT TO FOUR INDIVIDUALS, ALL OF WHOM ARE CIVIL SERVICE EMPLOYEES EMPLOYED AS RANGE INSPECTORS IN THE RANGE INSPECTION BRANCH, OFFICE OF THE PROVOST MARSHAL; THAT THREE OF THESE EMPLOYEES ARE UNDER THE SUPERVISION OF MR. ADAMS; AND THAT ONLY ONE BID--- THE ONE SUBMITTED BY MR. ADAMS--- WAS RECEIVED IN RESPONSE TO THE INVITATION. THE SUBJECT CONTRACT WAS AWARDED TO MR. ADAMS UNDER DATE OF DECEMBER 28, 1960. IT APPEARS THAT THAT ACTION WAS TAKEN FOLLOWING APPROVAL OF THE AWARD BY LIEUTENANT COLONEL MORTON S. JAFFE, THE STAFF JUDGE ADVOCATE, AS INDICATED IN HIS MEMORANDUM OF MARCH 10, 1961, IN PART, AS FOLLOWS:

"2. I HAVE STUDIED THE MENTIONED CONTRACT TO WHICH I GAVE LEGAL SUFFICIENCY OF 23 DECEMBER 1960 AND IT IS MY OPINION THAT YOU MAY LAWFULLY AND PROPERLY MAKE PAYMENT OF INVOICES AND VOUCHERS PRESENTED TO YOU BY THE CONTRACTOR UNDER THIS CONTRACT.

"3. FOR YOUR FURTHER INFORMATION, I THINK THAT THIS CONTRACT WAS REQUIRED TO BE ENTERED INTO BECAUSE IT REFLECTS THE ONLY MEANS AVAILABLE TO THE UNITED STATES GOVERNMENT AND PARTICULARLY WHITE SANDS MISSILE RANGE, NEW MEXICO TO ACCOMPLISH ESSENTIAL POLICING OF THE MISSILE RANGE AND FIRING AREAS AND THE CONTROL OF CATTLE OF LAND OWNERS ADJACENT TO THE WHITE SANDS MISSILE RANGE.'

UNDER THE TERMS OF THE CONTRACT MR. ADAMS AGREED TO FURNISH, ON A RENTAL BASIS, CERTAIN EQUIPMENT AND HORSES FOR THE USE OF THE GOVERNMENT IN PATROLLING AND INSPECTING THE WHITE SANDS MISSILE RANGE. AS TO THE NEED OF THE GOVERNMENT FOR THE SERVICES TO BE RENDERED UNDER THE CONTRACT, YOU MADE THE FOLLOWING STATEMENT:

"* * * IT HAS BEEN DETERMINED THAT IT IS ABSOLUTELY ESSENTIAL THAT THE RANGE BE INSPECTED AND CLEARED OF PERSONS AND CATTLE PRIOR TO THE COMMENCEMENT OF MISSILE FIRINGS AT THIS TEST FACILITY UTILIZED BY ALL DEPARTMENTS OF DEFENSE AGENCIES. IF THE RANGE IS NOT CLEARED, THE GOVERNMENT IS SUBJECT TO REIMBURSEMENT CLAIMS FOR DESTRUCTION OF PRIVATE PROPERTY. THE TERRAIN OF THE RANGE IS SUCH THAT TRAVEL BY THE RANGE INSPECTION BRANCH PERSONNEL CAN ONLY BE PERFORMED ON HORSEBACK. IN VIEW OF THE ESSENTIALITY OF THE MISSION OF THIS INSTALLATION AND THE FACT THAT THIS MISSION CANNOT BE DELAYED BY FAILURE TO CLEAR THE RANGE, THE UNDERSIGNED FINANCE AND ACCOUNTING OFFICER HAS AGREED TO MAKE PAYMENT TO MR. ADAMS UNDER THE TERMS OF THE INCLOSED CONTRACT AS NO OTHER MEANS PRESENTLY EXISTS TO ACCOMPLISH THE REQUIRED RANGE CLEARANCE. * * *"

YOU THEN MADE REFERENCE TO CERTAIN DECISIONS OF OUR OFFICE WHICH, YOU STATE, CAST DOUBT UPON THE VALIDITY OF THE PAYMENTS MADE UNDER THE CONTRACT, THAT IS, YOU CITED A NUMBER OF DECISIONS BY OUR OFFICE HOLDING, IN EFFECT, THAT CONTRACTS BETWEEN THE GOVERNMENT AND ITS EMPLOYEES ARE AGAINST PUBLIC POLICY AND ARE NOT TO BE ENTERED INTO EXCEPT FOR THE MOST COGENT REASONS, SUCH AS THE NONAVAILABILITY OF SUCH SERVICES FROM OTHER SOURCES, AND THAT EVEN THE NONAVAILABILITY OF SUCH SOURCES MAY NOT ALWAYS JUSTIFY SUCH CONTRACTS; AND, FURTHER, THAT THE PRACTICE IS ESPECIALLY OBJECTIONABLE WHERE THE CONTRACTING IS BETWEEN AN EMPLOYEE AND THE PARTICULAR SERVICE IN WHICH HE IS EMPLOYED.

THE CONTRACT INVOLVED HEREIN APPEARS NOT TO BE PROHIBITED BY STATUTE. HOWEVER, AS POINTED OUT IN YOUR LETTER, IT HAS BEEN REPEATEDLY HELD BY OUR OFFICE THAT CONTRACTS BETWEEN THE GOVERNMENT AND ITS EMPLOYEES SHOULD BE ENTERED INTO ONLY IN EXCEPTIONAL CASES SINCE SUCH CONTRACTS ARE CONTRARY TO PUBLIC POLICY, ARE PROVOCATIVE OF TROUBLE AND HAVE A TENDENCY TOWARD POSSIBLE FAVORITISM OR PREFERENTIAL TREATMENT. IN OUR DECISION OF JULY 28, 1924, A-2132, PUBLISHED AT 4 COMP. GEN. 46, IT WAS HELD THAT SUCH PRACTICE IS PARTICULARLY OBJECTIONABLE WHERE THE CONTRACTING IS BETWEEN THE EMPLOYEE AND THE PARTICULAR SERVICE IN WHICH HE IS EMPLOYED.

THE FACTS SET FORTH ABOVE APPEAR TO BE SUCH AS MAY PROPERLY BE REGARDED AS COMING WITHIN THE EXCEPTIONS INDICATED IN THE CITED DECISIONS. WE SAY THIS BECAUSE THE SERVICES IN QUESTION ARE STATED TO BE ABSOLUTELY NECESSARY TO THE OPERATION OF THE WHITE SANDS MISSILE RANGE. THE RECORD FAIRLY ESTABLISHES THAT THE SERVICES WERE NOT AVAILABLE FROM ANY OTHER SOURCE, IT BEING SHOWN THAT A GENERAL INVITATION TO BID WAS POSTED IN NUMEROUS PUBLIC PLACES BUT THAT ONLY ONE BID WAS RECEIVED. IN OTHER WORDS, THIS IS NOT A CASE WHERE THE "NEEDS OF THE GOVERNMENT REASONABLY COULD BE OTHERWISE OBTAINED.' ALSO, IT IS CLEAR THAT THE FURNISHING OF THE EQUIPMENT AND HORSES WAS NOT SOMETHING REQUIRED OF MR. ADAMS INCIDENT TO HIS EMPLOYMENT AS A RANGE INSPECTOR.

ACCORDINGLY, IT IS OUR VIEW THAT THE CONTRACT IN THIS CASE WAS PROPERLY AWARDED AND THAT THE PAYMENTS MADE THEREUNDER WERE, THEREFORE, AUTHORIZED. FOR THE SAME REASON THE VOUCHER FOR $1,537.20, TRANSMITTED WITH YOUR LETTER OF JUNE 6, 1961, AND RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.