B-148699, JUNE 12, 1962, 41 COMP. GEN. 799

B-148699: Jun 12, 1962

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IS NOT REQUIRED TO HAVE SUCH LIAISON ACTIVITIES VIEWED AS SALES ACTIVITIES TO SUBJECT HIM TO THE PROHIBITION IN 10 U.S.C. 6112 (B). 1962: REFERENCE IS MADE TO YOUR LETTER OF APRIL 25. YOU SAY THAT PAYMENT OF CAPTAIN TAUSSIG'S RETIRED PAY WAS DISCONTINUED EFFECTIVE APRIL 1. CAPTAIN TAUSSIG WAS PLACED ON THE PERMANENT DISABILITY RETIRED LIST OF THE NAVY ON SEPTEMBER 1. HE IS PRESENTLY EMPLOYED BY THE JOY MANUFACTURING COMPANY. THE JOY MANUFACTURING COMPANY IS A PRODUCER OF COMPRESSORS. DECLARES EXPRESSLY THAT THE GOVERNMENT OFFICE IS NOT A SALES OFFICE AND DESCRIBES ITS MISSION AS FOLLOWS: 1. TO GUIDE AND HELP THE OPERATING DIVISIONS GAIN ALL THE PROFITABLE BUSINESS WE CAN IN PRODUCTS WHICH THE GOVERNMENT OR ITS AGENCIES ARE BUYING AND WHICH WE HAVE FOR SALE. 2.

B-148699, JUNE 12, 1962, 41 COMP. GEN. 799

MILITARY PERSONNEL - RETIRED - CONTRACTING WITH GOVERNMENT - WHAT CONSTITUTES SELLING A RETIRED REGULAR NAVY OFFICER WHO AS DIRECTOR OF GOVERNMENT RELATIONS PERFORMS ANALYTICAL SERVICES FOR A MANUFACTURING FIRM SELLING EQUIPMENT TO AGENCIES OF THE DEPARTMENT OF DEFENSE AND WHO AS AN INVITEE OR A MEMBER OF TECHNICAL, ADVISORY OR SOCIAL ORGANIZATIONS FURNISHES THE DEPARTMENT OF NAVY ASSISTANCE, INFORMATION AND ADVICE, BUT DOES NOT ENGAGE IN ANY ACTIVITIES TO INDUCE THE NAVY DEPARTMENT TO PURCHASE THE MANUFACTURING FIRM'S PRODUCTS, IS NOT REQUIRED TO HAVE SUCH LIAISON ACTIVITIES VIEWED AS SALES ACTIVITIES TO SUBJECT HIM TO THE PROHIBITION IN 10 U.S.C. 6112 (B), PRECLUDING RECEIPT OF RETIRED PAY BY RETIRED REGULAR NAVY OFFICERS ENGAGED IN SELLING ACTIVITIES WITH THE NAVY DEPARTMENT.

TO M. M. ALEXANDER, DEPARTMENT OF THE NAVY, JUNE 12, 1962:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 25, 1962, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-645, REQUESTING A DECISION AS TO WHETHER, IN THE CIRCUMSTANCES PRESENTED, THE PROVISIONS OF 10 U.S.C. 6112 (B) PROHIBIT THE PAYMENT OF RETIRED PAY TO CAPTAIN JOSEPH K. TAUSSIG, JR., UNITED STATES NAVY, RETIRED. YOU SAY THAT PAYMENT OF CAPTAIN TAUSSIG'S RETIRED PAY WAS DISCONTINUED EFFECTIVE APRIL 1, 1962.

CAPTAIN TAUSSIG WAS PLACED ON THE PERMANENT DISABILITY RETIRED LIST OF THE NAVY ON SEPTEMBER 1, 1954. HE IS PRESENTLY EMPLOYED BY THE JOY MANUFACTURING COMPANY, PITTSBURGH, PENNSYLVANIA, IN A POSITION ENTITLED " DIRECTOR OF GOVERNMENT RELATIONS.' THE JOY MANUFACTURING COMPANY IS A PRODUCER OF COMPRESSORS, FANS, BLOWERS, CONNECTORS, PNEUMATIC TOOLS, MINING AND CONSTRUCTION EQUIPMENT, TC., WHICH IT SELLS OR OFFERS FOR SALE TO AGENCIES OF THE DEPARTMENT OF DEFENSE. A SUBMITTED EXCERPT COPY FROM THE COMPANY'S GOVERNMENT MANUAL, HOWEVER, DECLARES EXPRESSLY THAT THE GOVERNMENT OFFICE IS NOT A SALES OFFICE AND DESCRIBES ITS MISSION AS FOLLOWS:

1. TO GUIDE AND HELP THE OPERATING DIVISIONS GAIN ALL THE PROFITABLE BUSINESS WE CAN IN PRODUCTS WHICH THE GOVERNMENT OR ITS AGENCIES ARE BUYING AND WHICH WE HAVE FOR SALE.

2. TO GUIDE AND ASSIST CORPORATE AND DIVISION MANAGEMENT IN JOY'S OBTAINING RESEARCH AND/OR DEVELOPMENT CONTRACTS INVOLVING TECHNOLOGY WELL CALCULATED TO BOTH GIVE US MORE ATTRACTIVE PRODUCTS FOR GOVERNMENT SALE AND MORE ATTRACTIVE CIVILIAN PRODUCTS IN AREAS OF OUR GENERAL COMPETENCE, I.E., TECHNOLOGY PROXIMATE TO OR CLOSELY RELATED TO OUR EXISTING TECHNOLOGY FOR CIVILIAN MARKETS.

3. TO MAINTAIN CLOSE LIAISON WITH COMMERCIAL REPRESENTATIVES IN WASHINGTON OF OVERSEAS GOVERNMENTS IN ORDER TO HELP OUR DOMESTIC DIVISIONS OR OVERSEAS SUBSIDIARIES GET A MAXIMUM AMOUNT OF ANY AVAILABLE BUSINESS INFLUENCE BY SUCH FOREIGN REPRESENTATIVES.

4. TO PROVIDE THE COMPANY WITH STRONG REPRESENTATION IN WASHINGTON ON GENERAL MATTERS OF PUBLIC-POLITICAL RELATIONS. THIS SHOULD INCLUDE SUCH MATTERS AS CLOSE RELATIONS WITH AND ASSISTANCE WHEN APPROPRIATE TO MAPI, NATIONAL COAL ASSOCIATION, AMERICAN MINING CONGRESS, NSIA, AND OTHER TRADE GROUPS ON WHOM WE GENERALLY RELY FOR POLITICAL AND TRADE RELATIONS OF BREADTH. IT MAY ALSO OCCASIONALLY INCLUDE WORKING WITH POLITICAL INFLUENCE DIRECTLY WHEN CERTAIN SPECIFIC PROBLEMS DIRECTLY AND IMMEDIATELY CONCERNED WITH OUR OWN BUSINESS ARE INVOLVED.

THE ONLY INFORMATION WE HAVE CONCERNING CAPTAIN TAUSSIG'S POST RETIREMENT EMPLOYMENT ACTIVITIES IS CONTAINED IN HIS WRITTEN COMMENTS TO THE NAVY DEPARTMENT AS EXPLAINED AND AMPLIFIED IN A LETTER DATED APRIL 16, 1962, TO THIS OFFICE AND IN AN INTERVIEW WITH REPRESENTATIVES OF THIS OFFICE AND IN SOME RECENT PRESS COMMENTS ABOUT HIS CASE. THE FOLLOWING QUOTATION FROM HIS LETTER OF APRIL 16 APPEARS TO FULLY COVER HIS REPRESENTATIONS:

I HAVE BEEN INFORMED BY THE COMPTROLLER OF THE NAVY THAT PENDING A DECISION BY YOUR OFFICE AS TO WHETHER OR NOT CERTAIN ACTIVITIES CONDUCTED BY ME CONSTITUTE THE "SELLING" OF WAR SUPPLIES AND MATERIALS TO THE DEPARTMENT OF THE NAVY AS INTERPRETED IN THE DOD INSTRUCTION 5500.7 " STANDARDS OF CONDUCT.'

I SIGNED THE DD FORM 1357 " STATEMENT OF EMPLOYMENT ( REGULAR RETIRED OFFICERS)" THAT I WOULD NOT "SELL" TO THE DEPARTMENT OF DEFENSE IN VIOLATION OF THE POLICIES AND REGULATIONS AND STATUTES. I ENCLOSED A STATEMENT WITH THE FORM BECAUSE I DO HAVE LIAISON WITH CERTAIN MEMBERS OF THE DEPARTMENT OF DEFENSE AND THE DEPARTMENT OF THE NAVY, BUT THESE ACTIVITIES WERE OF SUCH NATURE THAT I WAS CERTAIN (EXCEPT FOR THE MOST LITERAL INTERPRETATION OF THE WORDS IN THE POLICY STATEMENTS) THAT THEY DID NOT CONSTITUTE SELLING, NEGOTIATING TO SELL, OR CONTRACTING WITH THE DEPARTMENT OF THE NAVY. THESE ACTIVITIES ARE BRIEFLY:

1. THOSE INITIATED BY OFFICIALS, BOTH MILITARY AND CIVILIAN, IN THE DEPARTMENT OF THE NAVY WHEREIN MY ADVICE AND COUNSEL IS SOLICITED IN MATTERS CONCERNING THE NATIONAL DEFENSE.

2. THOSE ACTIVITIES CONDUCTED BY OFFICIAL AND QUASI-OFFICIAL NON PROFIT ORGANIZATIONS (THE NATIONAL SECURITY INDUSTRIAL ASSOCIATION, THE AMERICAN ORDNANCE ASSOCIATION, AND THE NAVY LEAGUE) WHEREIN, AS A MEMBER OF VARIOUS COMMITTEES, I HAVE PARTICIPATED IN FRAMING BROAD RECOMMENDATIONS FOR THE ASSISTANCE OF THE DEPARTMENT OF DEFENSE IN BRIDGING THE GAPS BETWEEN INDUSTRY AND THE DEPARTMENT.

3. THOSE ACTIVITIES OF A PURELY SOCIAL NATURE, SUCH AS ATTENDANCE AT NAVAL ACADEMY ALUMNI ASSOCIATION MEETINGS, NAVAL ACADEMY CLASS REUNIONS, AND PURELY SOCIAL EVENTS OF A PERSONAL NATURE WITH PERSONAL FRIENDS.

MY PRESENT POSITION IS AS DIRECTOR OF GOVERNMENT RELATIONS FOR A LARGE MANUFACTURING COMPANY. MY DUTIES DO NOT REQUIRE ME TO SELL, NEGOTIATE FOR SALE, OR TO CONTRACT WITH THE DEPARTMENT OF THE NAVY. THEY ARE OF A PURELY ANALYTICAL NATURE, AIMED AT KNOWING WHAT IS GOING TO BE BOUGHT AND BY WHOM; WHAT THE FUTURE REQUIREMENTS MIGHT BE IN ORDER TO ASSIST IN FUTURE PLANNING; LIAISON WITH TRADE ASSOCIATIONS; AND THE LIKE. COMPANY DOES NO BUSINESS WITH ANY GOVERNMENT DEPARTMENT WHICH IS NOT OF A FIXED PRICE NATURE PURSUANT TO ADVERTISED PROCUREMENTS.

AT PRESENT, I AM INVOLVED AS FOLLOWS:

A. AS A MEMBER OF THE PLANNING COMMITTEE AND THE ADVISORY COMMITTEE OF THE NATIONAL SECURITY INDUSTRIAL ASSOCIATION'S ANTI-SUBMARINE WARFARE COMMITTEE, I HAVE HELPED PREPARE THE SECOND ANNUAL REPORT FOR THE SECRETARY OF THE NAVY, AND FEEL THAT IT WOULD BE IN THE INTERESTS OF THE NAVY WERE I AVAILABLE FOR CONSULTATION OF CERTAIN ELEMENTS OF THIS REPORT WHICH MY KNOWLEDGE OF THE NAVY AND INDUSTRY QUALIFY ME.

B. AS A MEMBER OF THE AMERICAN SOCIETY OF MECHANICAL ENGINEERS, I HAVE BEEN APPOINTED TO THE ENTERTAINMENT COMMITTEE FOR A FUNCTION TO BE HELD IN WASHINGTON. SINCE MANY NAVY DEPARTMENT PERSONNEL WILL BE INVOLVED AS MEMBERS, I WOULD LIKE CLEARANCE TO PARTICIPATE.

C. FOR SOME MONTHS PAST I HAVE BEEN IN CORRESPONDENCE WITH CERTAIN FLEET COMMANDERS ON THE PHILOSOPHIES OF ANTI-SUBMARINE WARFARE VIS-A VIS AVAILABILITY OF BUDGETARY FUNDS; TRAINED PERSONNEL; AND GENERAL PHILOSOPHIES CONCERNING SOPHISTICATION OR DESOPHISTICATION OF WEAPONS SYSTEMS. ALL OF THIS CORRESPONDENCE HAS BEEN FLEET INITIATED.

D. ON A SPORADIC BASIS I AM CALLED BY PERSONNEL WORKING ON THE SECRETARY OF THE NAVY'S ANTI-SUBMARINE WARFARE STUDY GROUP MEETING AT THE NAVAL WEAPONS PLANT FOR ADVICE AND COMMENT ON SUBJECT MATTER DEALING WITH INDUSTRY IN GENERAL WITH WHICH NONE OF THE MEMBERS HAS HAD ANY EXPERIENCE.

E. IN THE PAST, AND I ANTICIPATE MORE CALLS IN THE FUTURE, I HAVE BEEN INVITED BY ELEMENTS OF THE NEW DEFENSE SUPPLY AGENCY TO ATTEND BRIEFINGS AND EXHIBITS CONCERNING THIS NEW SUPPLY SET-UP. THERE IS LITTLE OR NO WAY TO TELL WHETHER THE MATERIALS BOUGHT BY THESE AGENCIES MIGHT EVENTUALLY END UP WITH THE NAVY; NOR WHETHER THE PROCUREMENT OFFICIALS MIGHT BE ON NAVY OR OTHER PAYROLLS * * * OR EVEN CHANGE PAYROLLS IN THE FUTURE.

F. I PERIODICALLY ATTEND MONTHLY LUNCHEONS OF MY NAVAL ACADEMY CLASSMATES AND THE MONTHLY LUNCHEON OF THE NAVAL ACADEMY ALUMNI ASSOCIATION. OFTEN THE ATTENDEES AND SPEAKERS ARE NAVAL PERSONNEL WITH SOME ELEMENTS OF PROCUREMENT IN THEIR POSITIONS.

G. IN THE PAST, AS A MEMBER OF THE ADVISORY COUNCIL ON NAVAL AFFAIRS OF THE NAVY LEAGUE, I HAVE BEEN CONTACTED BY THE COMMANDANTS OF CERTAIN NAVAL DISTRICTS SOLICITING MY HELP IN BRIDGING THE GAPS BETWEEN THE NAVY AND THE CIVILIAN WORLD.

H. I WAS PLANNING TO ATTEND THE NAVY LEAGUE CONVENTION TO BE HELD IN CHICAGO 15-19 MAY. IF I ATTEND, I WILL INEVITABLY BE IN CONTACT WITH PERSONNEL OF THE DEPARTMENT OF THE NAVY.

I. ON PAST OCCASIONS, I HAVE BEEN INVITED BY THE SECRETARY OF THE NAVY EITHER TO REPRESENT HIM PERSONALLY, OR AS HIS GUEST, TO ATTEND FUNCTIONS DESIGNED TO EITHER PROMOTE THE NAVY IN THE CIVILIAN EYES, OR TO BRIEF THE ATTENDEES ON THE CURRENT STATE-OF-THE-ART IN NAVAL WARFARE.

J. I AM CONSTANTLY APPROACHED BY PERSONNEL OF THE NAVY DEPARTMENT WHO ARE ABOUT TO RETIRE FOR ADVICE ON JOB OPPORTUNITIES. (THIS IS BECOMING A TREMENDOUS MORALE AND SOCIAL PROBLEM * * * DUE PRINCIPALLY TO THE OVERBURDENING OF RESTRICTIONS PLACED UPON THESE PEOPLE, WHEREIN THE SKILLS AND KNOWLEDGE THEY HAVE TO CONTRIBUTE TO INDUSTRY AND ARE DESIRED BY INDUSTRY, ARE NOT TAKEN UP BY INDUSTRY BECAUSE INDUSTRY "FEARS" REPERCUSSIONS.)

THERE ARE MANY OTHER INSTANCES OF SIMILAR NATURE, AS WELL AS PURELY FRIENDLY SOCIAL CONTACTS IN WHICH I INDULGE.

NONE OF THESE CONTACTS INVOLVE THE SIGNING OF A BID, PROPOSAL, OR CONTRACT; NEGOTIATING A CONTRACT; CONTACTING AN OFFICER OR EMPLOYEE OF THE DEPARTMENT OF DEFENSE FOR THE PURPOSE OF (I) OBTAINING OR NEGOTIATING CONTRACTS (II) NEGOTIATING OR DISCUSSING CHANGES IN SPECIFICATIONS, PRICE, COST ALLOWANCE, OR OTHER TERMS OF A CONTRACT (III) SETTLING DISPUTES CONCERNING THE PERFORMANCE OF A CONTRACT. THEY DO NOT (IN THE SENSE AS PREVIOUSLY INTERPRETED BY THE VARIOUS OFFICES AND THE CONGRESSIONAL COMMITTEE) "SELLING, OR CONTRACTING OR NEGOTIATING, NAVAL SUPPLIES OR WAR MATERIALS TO THE DEPARTMENT OF THE NAVY" (10 U.S.C. 6112 (B) ).

HOWEVER, AS I STATED IN MY LETTER TO THE COMPTROLLER OF THE NAVY, MY DOUBTS LAY IN WHETHER SUCH ACTIVITIES OUTLINED ABOVE CONSTITUTED "LIAISON ACTIVITY WITH A VIEW TOWARDS THE ULTIMATE CONSUMMATION OF A SALE EVEN THOUGH THE ACTUAL CONTRACT THEREFORE IS SUBSEQUENTLY NEGOTIATED BY ANOTHER PERSON.'

SECTION 6112 (B) OF TITLE 10, U.S.C. PROVIDES:

IF A RETIRED OFFICER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS IS ENGAGED FOR HIMSELF OR OTHERS IN SELLING, OR CONTRACTING OR NEGOTIATING TO SELL, NAVAL SUPPLIES OR WAR MATERIALS TO THE DEPARTMENT OF THE NAVY, HE IS NOT ENTITLED TO ANY PAYMENT FROM THE UNITED STATES WHILE HE IS SO ENGAGED.

THOSE STATUTORY PROVISIONS AND THE SUBSTANTIALLY IDENTICAL PROVISIONS CONTAINED IN 5 U.S.C. 59C HAVE BEEN CONSTRUED BY OUR OFFICE, THE COURT OF CLAIMS AND THE ADMINISTRATIVE DEPARTMENTS AS NOT LIMITED TO DIRECT SALES, NEGOTIATING, OR CONTRACTING, BUT AS INCLUDING VIRTUALLY ANY ACTIVITY SURROUNDING THE SELLING PROCESS. SEE GENERALLY, 39 COMP. GEN. 366; GEORGE H. SEASTROM V. UNITED STATES, 147 CT.1CL. 453; B-141322, JULY 1, 1960, AND MAY 31, 1961. THE PURPOSE AND APPLICATION OF SUCH STATUTES ARE CLEARLY AND CONCISELY SET OUT IN PARAGRAPH VI.B., DEPARTMENT OF DEFENSE DIRECTIVE 5500.7, AS FOLLOWS:

SELLING OR CONTRACTING FOR SALE

NO REGULAR RETIRED OFFICER OF THE ARMED FORCES WILL SELL, CONTRACT FOR THE SALE OF, OR NEGOTIATE FOR THE SALE OF ANYTHING TO THE MILITARY DEPARTMENT IN WHICH HE HAS RETIRED STATUS IN VIOLATION OF APPLICABLE STATUTORY RESTRICTIONS. RETIRED PAY OF A REGULAR RETIRED OFFICER IS SUBJECT TO FORFEITURE DURING ANY PERIOD WITHIN TWO YEARS OF HIS RETIREMENT IF HE SELLS FOR HIMSELF OR ANOTHER ANY SUPPLIES OR WAR MATERIALS TO THE DEPARTMENT OF DEFENSE, COAST GUARD, COAST AND GEODETIC SURVEY, OR THE PUBLIC HEALTH SERVICE. FOR THE PURPOSE OF THIS SECTION, SELLING MEANS (1) SIGNING A BID, PROPOSAL, OR CONTRACT, (2) NEGOTIATING A CONTRACT, OR (3) CONTACTING AN OFFICER OR EMPLOYEE OF THE DEPARTMENT OF DEFENSE FOR THE PURPOSE OF (I) OBTAINING OR NEGOTIATING CONTRACTS, (II) NEGOTIATING OR DISCUSSING CHANGES IN SPECIFICATIONS, PRICE, COST ALLOWANCES, OR OTHER TERMS OF A CONTRACT, OR (III) SETTLING DISPUTES CONCERNING PERFORMANCE OF A CONTRACT, (4) ANY OTHER LIAISON ACTIVITY WITH A VIEW TOWARD THE ULTIMATE CONSUMMATION OF A SALE EVEN THOUGH THE ACTUAL CONTRACT THEREFOR IS SUBSEQUENTLY NEGOTIATED BY ANOTHER PERSON. HOWEVER,IT IS NOT THE INTENT OF THIS DIRECTIVE TO PRECLUDE A RETIRED OFFICER FROM ACCEPTING EMPLOYMENT WITH PRIVATE INDUSTRY SOLELY BECAUSE HIS EMPLOYER IS A CONTRACTOR WITH THE GOVERNMENT.

YOU SAY THAT WHILE CAPTAIN TAUSSIG DOES NOT SELL TO THE GOVERNMENT YOUR DOUBT IN THIS MATTER IS OCCASIONED BY THE "LIAISON ACTIVITY" PROVISIONS OF THAT PARAGRAPH AND THE OFFICER'S DESCRIPTION OF HIS NAVY CONTACTS.

THE STATUTES CONCERNED, HOWEVER, APPLY ONLY TO THE RETIRED OFFICERS WHILE THEY ARE "ENGAGED" IN SELLING, ETC., AND, AS INDICATED IN THE LAST SENTENCE OF THE ABOVE QUOTATION, PRIVATE EMPLOYMENTS WHICH DO NOT INVOLVE SOME ACTUAL SALES ACTIVITY HAVE NOT BEEN VIEWED AS AFFECTING THE OFFICERS' RIGHTS TO RETIRED PAY. 40 COMP. GEN. 511; B-141322, SUPRA; B-147879, APRIL 4, 1962, 41 COMP. GEN. 642; B-148882, MAY 29, 1962, 41 COMP. GEN. 784. WE STATED IN THE DECISION OF MAY 29, 1962, B 148882, THAT TO CONSTRUE THE STATUTE AS APPLICABLE TO PRIVATE EMPLOYMENTS ON THE BASIS OF EXECUTIVE AND ADMINISTRATIVE RESPONSIBILITY ALONE WOULD OPERATE TO DEFEAT TO SOME EXTENT THE INTENT OF CONGRESS TO PERMIT A RETIRED REGULAR OFFICER TO ACCEPT ANY PRIVATE EMPLOYMENT IN WHICH THE OFFICER IS NOT ENGAGED IN SALES ACTIVITIES. IN THIS SAME CONNECTION, IT SEEMS OBVIOUS THAT THE STATUTORY PROVISIONS DO NOT ENCOMPASS PURELY SOCIAL CONTACTS OR CONTACTS OCCASIONED BY MEMBERSHIP IN TECHNICAL AND ADVISORY ORGANIZATIONS WHICH OFFER NOTHING FOR SALE TO ANYONE; AND, WE DO NOT BELIEVE THAT A RETIRED OFFICER OF THE REGULAR NAVY WHO DOES NO MORE THAN RESPOND TO REQUESTS FROM NAVY OFFICIALS FOR ASSISTANCE, INFORMATION OR ADVICE IS TO BE VIEWED AS ENGAGED IN SALES ACTIVITIES FOR PURPOSES OF THE STATUTE, EVEN THOUGH THE NAVY'S REQUEST MAY BE A STEP TOWARD THE PROCUREMENT OF SOME SUPPLY OR MATERIAL. WHILE IT SEEMS APPARENT THAT THE NAVY'S KNOWLEDGE OF A RETIRED OFFICER'S BACKGROUND, EXPERIENCE AND SPECIAL QUALIFICATIONS MAY INFLUENCE ITS DECISION TO REQUEST HIS ASSISTANCE, ETC., RATHER THAN TO RELY ON AN ADVISOR OF UNPROVEN CAPABILITIES, THE STATUTORY PROHIBITION IS DIRECTED TO AN ENGAGEMENT IN SALES ACTIVITIES BY THE RETIRED OFFICER, NOT TO REQUESTS FOR ADVICE OR ASSISTANCE OR TO PURCHASES BY THE NAVY, AND WE DO NOT VIEW THE QUOTED PROVISIONS OF DEPARTMENT OF DEFENSE DIRECTIVE 5500.7, AS IMPOSING ANY PROHIBITION NOT CONTEMPLATED BY THE STATUTORY PROVISIONS ON WHICH THEY ARE BASED.

ON THE BASIS OF THE RECORD BEFORE US CAPTAIN TAUSSIG'S DUTIES AS DIRECTOR OF GOVERNMENT RELATIONS FOR THE JOY MANUFACTURING COMPANY, INSOFAR AS MILITARY PROCUREMENTS ARE CONCERNED, ARE SHOWN TO BE OF AN ANALYTICAL NATURE, AIMED AT KNOWING WHAT IS GOING TO BE BOUGHT AND WHAT FUTURE REQUIREMENTS MIGHT BE AND HE INITIATES NO CONTACTS WITH THE DEPARTMENT OF DEFENSE OR THE MILITARY DEPARTMENTS. ANY SALES ACTIVITY IN CONNECTION WITH SUCH DUTIES IS EXPRESSLY NEGATED IN THE STATEMENT OF THE MISSION OF THE JOY GOVERNMENT OFFICE AND WE HAVE NO REPORT OF ANY ACTIVITY BY CAPTAIN TAUSSIG IN HIS CAPACITY AS AN EMPLOYEE OF JOY MANUFACTURING COMPANY TO INDUCE THE NAVY TO PURCHASE JOY PRODUCTS. WE FIND NO REASONABLE BASIS FOR A CONCLUSION THAT HIS NAVY CONTACTS AS AN INVITEE OF THE NAVY OR AS A MEMBER OF THE TECHNICAL, ADVISORY AND SOCIAL ORGANIZATIONS TO WHICH HE BELONGS SHOULD BE VIEWED AS SALES ACTIVITIES SO AS TO SUBJECT HIM TO THE PROHIBITION OF SECTION 6112 (B).

ACCORDINGLY, IT IS OUR VIEW THAT ON THE RECORD AS SET OUT ABOVE, THE PAYMENT TO CAPTAIN TAUSSIG OF HIS RETIRED PAY IS NOT PROHIBITED BY THE PROVISIONS OF 10 U.S.C. 6112 (B).