B-148670, JUN. 19, 1962

B-148670: Jun 19, 1962

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CURTIS: REFERENCE IS MADE TO YOUR LETTER OF MARCH 23. WE HAVE RECEIVED A REPORT FROM THAT AGENCY WHICH IS ACCOMPANIED BY A COPY OF A LETTER FROM THE CONTROLLER OF TELEVISION ASSOCIATES OF INDIANA. IT IS REPORTED BY THE AGENCY FOR INTERNATIONAL DEVELOPMENT THAT ITS INVESTIGATION FAILED TO DISCLOSE ANY VIOLATIONS OF THE AGENCY'S AGREEMENT WITH THE CONTRACTOR. THAT YOUR CLAIMS WERE BROUGHT TO THE CONTRACTOR'S ATTENTION AND THE AGENCY IS SATISFIED THAT THE CONTRACTOR IS ACTING IN GOOD FAITH IN DISPUTING SUCH CLAIMS. WE WERE ADVISED THAT. SPECIAL ATTENTION WILL BE GIVEN TO THE MATTER OF GRANTING COMPENSATORY TIME OFF TO EMPLOYEES OF THE CONTRACTOR AND THAT THE CONTRACTOR WILL BE REQUIRED TO EXPLAIN ANY POSSIBLE IRREGULARITIES WHICH MAY HAVE OCCURRED IN CONNECTION WITH THE PERFORMANCE OF THE CONTRACT WORK.

B-148670, JUN. 19, 1962

TO MRS. IONE E. CURTIS:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 23, 1962, AND SUBSEQUENT CORRESPONDENCE, CONCERNING YOUR CLAIMS TOTALING $3,656,67, PLUS INTEREST ON $500 OF SUCH AMOUNT FROM NOVEMBER 11, 1961, UNDER YOUR EMPLOYMENT AGREEMENT DATED JUNE 17, 1960, WITH TELEVISION ASSOCIATES, INC., AND TELEVISION ASSOCIATES OF INDIANA, INC., EXECUTED IN CONNECTION WITH THE PERFORMANCE OF CERTAIN OVERSEAS ENGINEERING SERVICES FOR THE GOVERNMENT UNDER CONTRACT NO. ICA-C-1162.

AS INDICATED IN OUR LETTER TO YOU OF APRIL 23, 1962, WE REQUESTED AN ADMINISTRATIVE REPORT ON THE CLAIMS FROM THE AGENCY FOR INTERNATIONAL DEVELOPMENT, DEPARTMENT OF STATE. WE HAVE RECEIVED A REPORT FROM THAT AGENCY WHICH IS ACCOMPANIED BY A COPY OF A LETTER FROM THE CONTROLLER OF TELEVISION ASSOCIATES OF INDIANA, INC., COMMENTING ON CERTAIN OF THE ALLEGATIONS MADE BY YOU CONCERNING THE PRACTICES OF THE COMPANY IN THE HIRING AND TREATMENT OF ITS OVERSEAS EMPLOYEES.

YOUR CLAIMS AGAINST THE CONTRACTOR CONSIST OF THE FOLLOWING ITEMS: TRAVEL PAY--- $29; TEMPORARY HOUSING--- $24; RETURN TRANSPORTATION FUND WITHHOLDINGS FROM SALARY PAYMENTS--- $500; SUBSISTENCE--- $2,695; AND OVERTIME--- $408.67.

IT IS REPORTED BY THE AGENCY FOR INTERNATIONAL DEVELOPMENT THAT ITS INVESTIGATION FAILED TO DISCLOSE ANY VIOLATIONS OF THE AGENCY'S AGREEMENT WITH THE CONTRACTOR; THAT YOUR CLAIMS WERE BROUGHT TO THE CONTRACTOR'S ATTENTION AND THE AGENCY IS SATISFIED THAT THE CONTRACTOR IS ACTING IN GOOD FAITH IN DISPUTING SUCH CLAIMS; AND THAT FURTHER ACTION BY THE AGENCY WOULD NOT BE APPROPRIATE SINCE IT CANNOT ADJUDICATE DISPUTES ARISING OUT OF CONTRACTS BETWEEN THE CONTRACTOR AND ITS EMPLOYEES. WE WERE ADVISED THAT, DURING AUDIT OF THE PAYMENTS MADE UNDER THE GOVERNMENT CONTRACT, SPECIAL ATTENTION WILL BE GIVEN TO THE MATTER OF GRANTING COMPENSATORY TIME OFF TO EMPLOYEES OF THE CONTRACTOR AND THAT THE CONTRACTOR WILL BE REQUIRED TO EXPLAIN ANY POSSIBLE IRREGULARITIES WHICH MAY HAVE OCCURRED IN CONNECTION WITH THE PERFORMANCE OF THE CONTRACT WORK.

THE CONTRACTOR DENIES THAT IT REQUIRES A FULL AND COMPLETE RELEASE FROM AN OVERSEAS EMPLOYEE BEFORE PAYING AN AMOUNT DUE SUCH EMPLOYEE FROM THE RETURN TRANSPORTATION FUND. IT ALLEGES THAT YOU REFUSED TO EXECUTE IN ACCORDANCE WITH YOUR AGREEMENT A FORM OF RELEASE WHICH COULD HAVE EXCEPTED FROM ITS PROVISIONS ANY LISTED CLAIMS AS MAY HAVE BEEN DISCLOSED AND UNSETTLED AT THE TIME OF THE TERMINATION OF YOUR EMPLOYMENT AGREEMENT. APPARENTLY A SATISFACTORY ARRANGEMENT CAN STILL BE MADE FOR PAYMENT OF THE ADMITTED BALANCE DUE YOU FROM THE RETURN TRANSPORATION FUND WITHOUT REQUIRING YOU TO WAIVE ANY OF YOU REMAINING OUTSTANDING CLAIMS.

THE CONTRACTOR ALSO DENIES YOUR ALLEGATION THAT IT IS USUALLY NECESSARY FOR AN EMPLOYEE TO VISIT MICHIGAN CITY, INDIANA, TO OBTAIN A REFUND OF WITHHELD SALARY PAYMENTS CREDITED TO THE RETURN TRANSPORTATION FUND. THE CONTRACTOR STATES THAT AT ONE TIME YOU WERE INVITED TO VISIT MICHIGAN CITY AFTER DEPARTING FROM YOUR OVERSEAS DUTY POST, SINCE THE POSSIBILITY EXISTED THAT YOUR SERVICES COULD HAVE BEEN UTILIZED ELSEWHERE IN THE COMPANY AND IT WOULD HAVE APPRECIATED AN OPPORTUNITY TO DISCUSS THE MATTER WITH YOU.

REGARDING THE CLAIM FOR $29 AS TRAVEL PAY, WE NOTE THAT IT IS NOW UNDISPUTED THAT YOUR SALARY PAYMENTS WERE BASED UPON COMMENCEMENT OF SERVICES AS OF JUNE 17, 1960, THE DATE OF YOUR EMPLOYMENT AGREEMENT, AND CONTINUANCE OF SUCH SERVICES WITHOUT INTERRUPTION THROUGH SEPTEMBER 19, 1961. YOU HAVE OTHERWISE INDICATED THAT WHAT YOU ARE ACTUALLY CLAIMING COVERS LIVING EXPENSES OR PER DIEM FOR A PERIOD OF ABOUT FOUR FAYS IN JUNE 1960, BEFORE LEAVING MICHIGAN CITY, INDIANA, FOR YOUR OVERSEAS POST OF DUTY. THERE APPEARS TO BE A DIFFERENCE OF OPINION AS TO WHETHER YOU WERE IN A TRAVEL STATUS AS OF THE EFFECTIVE DATE OF THE EMPLOYMENT AGREEMENT. EVIDENTLY THE CONTRACTOR CONSIDERS THAT YOUR ORIGINAL DUTY POST WAS MICHIGAN CITY, THE PLACE WHERE THE AGREEMENT WAS SIGNED, AND THAT YOU WERE NOT ON TEMPORARY DUTY FOR THE PURPOSE OF COMPUTING TRAVEL ALLOWANCES UNTIL YOU WERE ENROUTE TO YOUR OVERSEAS DUTY POST. YOU PROBABLY BELIEVE THAT MICHIGAN CITY SHOULD BE REGARDED FOR SUCH PURPOSE AS A TEMPORARY DUTY STATION SINCE YOU WERE HIRED IN CONTEMPLATION OF ASSIGNMENT OVERSEAS AND YOUR HOME ADDRESS AND POINT OF HIRE ARE SHOWN IN THE AGREEMENT TO BE PORTLAND, OREGON. THE PROVISIONS OF THE EMPLOYMENT AGREEMENT DO NOT CONCLUSIVELY INDICATE THE INTENTION OF THE PARTIES AS TO WHETHER ANY SUBSISTENCE ALLOWANCE WOULD ACCRUE BEFORE YOU DEPART FROM MICHIGAN CITY FOR OVERSEAS DUTY.

WITH RESPECT TO THE CLAIM FOR $24 AS AN ADDITIONAL TEMPORARY HOUSING ALLOWANCE, IT APPEARS THAT YOU WERE PROVIDED SUCH AN ALLOWANCE FOR A LIMITED 90-DAY PERIOD. YOU CONTEND THAT YOU SHOULD HAVE BEEN PROVIDED AN ADDITIONAL ALLOWANCE FOR FOUR DAYS FOR THE REASON THAT NO FURNITURE WAS AVAILABLE FOR YOUR USE UNTIL AFTER THE EXPIRATION OF THE 90-DAY PERIOD AND YOU WERE UNABLE TO MOVE INTO YOUR PERMANENT QUARTERS AT THE OVERSEAS SITE UNTIL THE 94TH DAY AFTER YOUR ARRIVAL AT THE SITE. THE CONTRACTOR TAKES THE POSITION THAT THE 90-DAY LIMITATION ON TEMPORARY HOUSING ALLOWANCES TO ITS EMPLOYEES AT OVERSEAS LOCATIONS IS NOT SUBJECT TO ANY EXCEPTION.

YOUR EMPLOYMENT AGREEMENT CONTAINS IN SECTION VII, PARAGRAPH 3, A PROVISION UNDER WHICH YOU AGREED TO MAKE NO CLAIM AGAINST THE CONTRACTOR ON ACCOUNT OF ANY INADEQUACY OF JOB SITE FACILITIES. HOWEVER, SUCH PARAGRAPH ALSO PROVIDES THAT THE CONTRACTOR WILL, TO THE EXTENT OF ITS ABILITY, FURNISH THE BEST FACILITIES WHICH ARE POSSIBLE UNDER THE CONDITIONS ENCOUNTERED. YOU HAVE MADE ALLEGATIONS TO THE EFFECT THAT THE CONTRACTOR ACTED ARBITRARILY IN ALLOTTING AVAILABLE FURNITURE FOR USE IN THE PERMANENT QUARTERS OF ITS OVERSEAS EMPLOYEES. IF SO, IT IS POSSIBLE THAT THE CONTRACTOR MAY HAVE A LEGAL OBLIGATION TO YOU IN THE MATTER, NOTWITHSTANDING YOUR GENERAL AGREEMENT TO MAKE NO CLAIM BASED UPON INADEQUATE FACILITIES FURNISHED.

YOUR CLAIM FOR OVERTIME IN THE AMOUNT OF $408.67 APPEARS TO BE OF DOUBTFUL LEGAL VALIDITY IN VIEW OF THE PROVISIONS OF YOUR AGREEMENT WHICH STATE THAT "NO ADDITIONAL COMPENSATION SHALL BE PAID REGARDLESS OF THE NUMBER OF HOURS WORKED PER DAY OR DAYS WORKED PER WEEK; " AND THAT ,SPORADIC, OR EMERGENCY OVERTIME MAY, AT THE SOLE DISCRETION OF THE CONTRACTOR, BE OFFSET BY COMPENSATORY TIME.' THE UNDISPUTED FACT THAT ANOTHER EMPLOYEE IN THE OFFICE WHERE YOU WORKED WAS GRANTED COMPENSATORY TIME OFF FROM DUTY WOULD NOT NECESSARILY REQUIRE A SALARY ADJUSTMENT TO BE MADE IN YOUR CASE. WE UNDERSTAND THAT THE SALARY PAID TO SUCH OTHER EMPLOYEE TO COVER THE PERIOD OF THE COMPENSATORY LEAVE HAS NOT BE INCLUDED AMONG THE ITEMS OF CLAIMED REIMBURSABLE EXPENSE UNDER THE CONTRACT BETWEEN YOUR EMPLOYER AND THE GOVERNMENT.

YOUR CLAIM FOR $2,695 FOR SUBSISTENCE DURING PRACTICALLY THE ENTIRE PERIOD OF YOUR EMPLOYMENT HAS BEEN DENIED BY THE CONTRACTOR ON THE BASIS OF PROVISIONS IN THE GOVERNMENT CONTRACT, REFERRED TO AS HAVING BEEN INCORPORATED IN YOUR EMPLOYMENT AGREEMENT. YOU CONTEND THAT THOSE CONTRACT PROVISIONS WERE NOT A PART OF YOUR AGREEMENT AND RELY PRINCIPALLY UPON THE FIRST SENTENCE OF SECTION VII OF THE AGREEMENT WHICH STATES: "IF BOARD AND LODGING IS NOT FURNISHED TO THE EMPLOYEE BY THE HOST COUNTRY TO WHICH THE EMPLOYEE IS ASSIGNED, SUBSISTENCE AND QUARTERS ALLOWANCE WILL BE FURNISHED AT THE RATES AND UNDER THE LIMITATIONS PRESCRIBED IN THE CONTRACT.' THE TERM ,CONTRACT" AS USED IN THAT SENTENCE EVIDENTLY WAS MEANT TO REFER TO THE ENGINEERING CONTRACT, ICA-C-1162, MENTIONED IN THE FIRST PARAGRAPH OF YOUR EMPLOYMENT AGREEMENT.

YOU STATE THAT, PRIOR TO YOUR EMPLOYMENT, YOU WERE ADVISED THAT ALL OF YOUR LIVING EXPENSES AT THE OVERSEAS JOB SITE WOULD BE INCLUDED IN YOUR ALLOWANCES AND THAT YOUR ENTIRE SALARY WOULD BE PAID AND DEPOSITED IN A UNITED STATES BANK OF YOUR CHOICE. THE CONTROLLER OF TELEVISION ASSOCIATES OF INDIANA, INC., HAS DENIED YOUR ALLEGATION THAT YOU WERE MISINFORMED AS TO THE CONDITIONS AND TERMS OF YOUR EMPLOYMENT AND ASSIGNMENT OVERSEAS; AND STATED THAT "AS I RECALL, MRS. CURTIS WAS FURNISHED A TABLE OF THE ALLOWANCES PAYABLE AS THEY APPEAR IN THE U.S. GOVERNMENT STANDARDIZED REGULATIONS FOR GOVERNMENT CIVILIANS - FOREIGN AREAS.'

AN AGREEMENT TO PAY ALL OF YOUR LIVING EXPENSES IN ADDITION TO SALARY WOULD SEEM TO HAVE BEEN UNUSUAL, CONSIDERING THAT SUBSISTENCE AND OTHER ALLOWANCES TO EMPLOYEES ARE BASED GENERALLY UPON ALLEVIATING HARDSHIPS CAUSED BY PARTICULAR CONDITIONS OF EMPLOYMENT AND NOT UPON ANY SUPPOSED OBLIGATION ON THE PART OF AN EMPLOYER TO PAY ALL OF THE LIVING EXPENSES OF ITS EMPLOYEES. IN THE CASE OF FEDERAL EMPLOYEES, IT IS THE DECLARED POLICY OF THE CONGRESS THAT THEY SHOULD BE COMPENSATED FOR "THE EXTRA COSTS AND HARDSHIPS INCIDENT TO THEIR ASSIGNMENTS OVERSEAS," INCLUDING COMPENSATION TO OFFSET THE DIFFERENCE BETWEEN THE COST OF LIVING AT THE POST OF ASSIGNMENT OF THE EMPLOYEE IN A FOREIGN AREA AND THE COST OF LIVING IN WASHINGTON, D.C. SEE SECTIONS 3031 AND 3037 OF TITLE 5, U.S.C. 1958 EDITION, SUPPLEMENT II.

IN CONCLUSION, IT IS TO BE EMPHASIZED THAT THERE EXISTS NO PRIVITY OF CONTRACT BETWEEN YOU AND THE GOVERNMENT. THEREFORE, AS IN THE CASE OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT, WE ARE NOT AUTHORIZED TO ADJUDICATE DISPUTES ARISING OUT OF YOUR EMPLOYMENT AGREEMENT OF JUNE 17, 1960. HOWEVER, THE ABOVE COMMENTS CONCERNING THE BASIC ISSUES INVOLVED IN YOUR CLAIMS ARE NOT BELIEVED TO BE UNFAIR TO EITHER PARTY TO SUCH AGREEMENT AND SEEM TO BE APPROPRIATE IN THE PARTICULAR CIRCUMSTANCES.