B-149705, NOVEMBER 8, 1962, 42 COMP. GEN. 236

B-149705: Nov 8, 1962

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NOT EVERY PRECONTRACT CONTACT WITH GOVERNMENT PERSONNEL IS VIEWED AS A SALES ACTIVITY. UNLESS IT IS CLEARLY AND ADEQUATELY SHOWN THAT THE CONTACT IS FOR ANOTHER PURPOSE. A RETIRED OFFICER OF THE UNIFORMED SERVICES WHO HEADS A CONSULTANT FIRM THAT REPRESENTS COMPANIES ENGAGED IN CONTRACTING OR SELLING ACTIVITIES WITH DEFENSE AGENCIES OR WHO IS EMPLOYED AS A CONSULTANT DOES NOT SOLELY BY REASON OF SUCH EMPLOYMENT HAVE TO BE CONSIDERED AS ENGAGED IN SALES ACTIVITIES WITHIN THE MEANING OF THE CONFLICT OF INTEREST STATUTE. CONTACTS BY RETIRED OFFICERS OF THE UNIFORMED SERVICES AS TECHNICAL CONSULTANTS WITH NONCONTRACTING DEFENSE DEPARTMENT PERSONNEL FOR THE PURPOSE OF ACQUIRING TECHNICAL INFORMATION RATHER THAN FOR ANY PURPOSE INVOLVING A SALES ACTIVITY OR ATTENDANCE OF RETIRED OFFICERS AS TECHNICAL ADVISERS AT MEETINGS ON PERFORMANCE OR PROGRESS UNDER AWARDED CONTRACTS ARE NOT CONTACTS WHICH WOULD BRING THE OFFICERS WITHIN THE CONFLICT OF INTEREST PROVISIONS IN 5 U.S.C. 59C.

B-149705, NOVEMBER 8, 1962, 42 COMP. GEN. 236

MILITARY PERSONNEL - RETIRED - CONTRACTING WITH GOVERNMENT - WHAT CONSTITUTES SELLING. MILITARY PERSONNEL - RETIRED - CONTRACTING WITH GOVERNMENT - CONSULTANT CONTACTS. MILITARY PERSONNEL - RETIRED - CONTRACTING WITH GOVERNMENT - CONSULTANT CONTACTS. MILITARY PERSONNEL RETIRED - CONTRACTING WITH GOVERNMENT - OFFICIAL V. OTHER CONTACTS WHILE, IN DETERMINING WHETHER A RETIRED OFFICER OF THE UNIFORMED SERVICES COMES WITHIN THE CONFLICT OF INTEREST PROVISIONS IN 5 U.S.C. 59C, AS AMENDED BY THE ACT OF OCTOBER 9, 1962, PUBLIC LAW 87-777, 76 STAT. 777, WHICH REQUIRES FORFEITURE OF RETIRED PAY OF MEMBERS ENGAGED IN SELLING AND CONTRACTING ACTIVITIES WITH THE MILITARY AND OTHER DESIGNATED AGENCIES, NOT EVERY PRECONTRACT CONTACT WITH GOVERNMENT PERSONNEL IS VIEWED AS A SALES ACTIVITY, SUCH CONTACTS, GENERALLY, EITHER DIRECT OR INDIRECT, WITH OFFICIALS OF THE MILITARY AGENCIES BY RETIRED OFFICERS REPRESENTING COMPANIES THAT SELL SUPPLIES OR WAR MATERIALS TO THE AGENCIES SHOULD BE CONSIDERED WITHIN THE STATUTE AND DEFENSE DEPARTMENT DIRECTIVE 5500.7, UNLESS IT IS CLEARLY AND ADEQUATELY SHOWN THAT THE CONTACT IS FOR ANOTHER PURPOSE. A RETIRED OFFICER OF THE UNIFORMED SERVICES WHO HEADS A CONSULTANT FIRM THAT REPRESENTS COMPANIES ENGAGED IN CONTRACTING OR SELLING ACTIVITIES WITH DEFENSE AGENCIES OR WHO IS EMPLOYED AS A CONSULTANT DOES NOT SOLELY BY REASON OF SUCH EMPLOYMENT HAVE TO BE CONSIDERED AS ENGAGED IN SALES ACTIVITIES WITHIN THE MEANING OF THE CONFLICT OF INTEREST STATUTE, 5 U.S.C. 59C, PROVIDED THAT HE DOES NOT CONTACT, EITHER DIRECTLY OR INDIRECTLY, DEFENSE AGENCIES FOR ANY OF THE PURPOSES DEFINED AS "SELLING" IN DEPARTMENT OF DEFENSE DIRECTIVE 5500.7. CONTACTS BY RETIRED OFFICERS OF THE UNIFORMED SERVICES AS TECHNICAL CONSULTANTS WITH NONCONTRACTING DEFENSE DEPARTMENT PERSONNEL FOR THE PURPOSE OF ACQUIRING TECHNICAL INFORMATION RATHER THAN FOR ANY PURPOSE INVOLVING A SALES ACTIVITY OR ATTENDANCE OF RETIRED OFFICERS AS TECHNICAL ADVISERS AT MEETINGS ON PERFORMANCE OR PROGRESS UNDER AWARDED CONTRACTS ARE NOT CONTACTS WHICH WOULD BRING THE OFFICERS WITHIN THE CONFLICT OF INTEREST PROVISIONS IN 5 U.S.C. 59C, AS AMENDED; HOWEVER, MEETINGS OR CONTACTS FOR THE PURPOSE OF DISCUSSING ANY SUPPLY PROCUREMENT PROPOSALS OR NEGOTIATING OR DISCUSSING CHANGES IN EXISTING CONTRACTS ARE CONTACTS UNDER THE DEFINITION OF SELLING IN DEPARTMENT OF DEFENSE DIRECTIVE 5500.7 AND WOULD REQUIRE INVOCATION OF THE STATUTE PRECLUDING ANY PAYMENTS FROM APPROPRIATED FUNDS TO SUCH RETIRED OFFICERS. CONTACTS BY RETIRED OFFICERS OF THE UNIFORMED SERVICES AT PLACES OTHER THAN GOVERNMENT FACILITIES, INCLUDING SOCIAL GATHERINGS, WHICH ARE MADE FOR THE PURPOSE OF SELLING TO ONE OF THE DEFENSE OR OTHER AGENCIES DESIGNATED IN 5 U.S.C. 59C, ARE CONTACTS FOR WHICH RETIRED PAY TO THE MEMBER IS REQUIRED TO BE FORFEITED.

TO THE SECRETARY OF DEFENSE, NOVEMBER 8, 1962:

REFERENCE IS MADE TO LETTER OF AUGUST 9, 1962, FORM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION WHETHER THE PROVISIONS OF 5 U.S.C. 59C AND 10 U.S.C. 6112 (B) PRECLUDE THE PAYMENT OF RETIRED PAY TO RETIRED REGULAR OFFICERS OF THE ARMED FORCES WHO, DURING THE PERIODS FIXED BY THESE STATUTES, ENGAGE IN THE BUSINESS ACTIVITIES DISCUSSED IN COMMITTEE ACTION NO. 308 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

SECTION 59C, TITLE 5, U.S.C. PROVIDES AS FOLLOWS:

NO PAYMENT SHALL BE MADE FROM APPROPRIATIONS IN ANY ACT TO ANY OFFICER ON THE RETIRED LISTS OF THE REGULAR ARMY, REGULAR NAVY, REGULAR MARINE CORPS, REGULAR AIR FORCE, REGULAR COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE FOR A PERIOD OF TWO YEARS AFTER RETIREMENT WHO FOR HIMSELF OR FOR OTHERS IS ENGAGED IN THE SELLING OF OR CONTRACTING FOR THE SALE OF OR NEGOTIATING FOR THE SALE OF TO ANY AGENCY OF THE DEPARTMENT OF DEFENSE, THE COAST GUARD, THE COAST AND GEODETIC SURVEY, AND THE PUBLIC HEALTH SERVICE ANY SUPPLIES OR WAR MATERIALS.

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.

IT MAY BE NOTED THAT, SINCE THE DATE OF THE ASSISTANT SECRETARY'S LETTER, THERE HAS BEEN ENACTED PUBLIC LAW 87-777, 76 STAT. 777, APPROVED OCTOBER 9, 1962, WHICH REPEALED THE ABOVE-QUOTED PERMANENT SALES RESTRICTION PROVISION IN 10 U.S.C. 6112 (B) AND AMENDED 5 U.S.C. 59C BY INCREASING FROM 2 TO 3 YEARS THE PERIOD WITHIN WHICH RETIRED REGULAR OFFICERS WILL BE SUBJECT TO FORFEITURE OF RETIRED PAY IF THEY ENGAGE FOR THEMSELVES OR OTHERS IN SELLING OR CONTRACTING WITH ANY OF THE DESIGNATED AGENCIES. THE LEGISLATIVE HISTORY OF THE NEW LAW, HOWEVER, DOES NOT REFLECT ANY VIEW ON THE PART OF THE MEMBERS OF THE COMMITTEES OF CONGRESS THAT THE TERMS USED IN THE LAWS CITED IN THE ASSISTANT SECRETARY'S LETTER OF AUGUST 9, 1962, HAVE BEEN IMPROPERLY APPLIED IN DECISIONS RENDERED AND REGULATIONS ISSUED UNDER THOSE LAWS OR THAT SUCH TERMS ARE TO BE DIFFERENTLY APPLIED IN THE ADMINISTRATION OF THE NEW LAW. SEE, GENERALLY, PAGE 4 OF SENATE REPORT NO. 1979, TO ACCOMPANY H.R. 11217, WHICH BECAME THE ABOVE-MENTIONED ACT OF OCTOBER 9, 1962.

FOR THE PURPOSE OF THE CITED STATUTES, THE TERM "SELLING" IS DEFINED IN PARAGRAPH VI.B, UNDER THE HEADING "SELLING OR CONTRACTING FOR SALE," OF DEPARTMENT OF DEFENSE DIRECTIVE 5500.7, DECEMBER 12, 1961, AS FOLLOWS:

* * * 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 THEREFORE 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.

SUCH DEFINITION IS IN ACCORD WITH OUR DECISIONS AND THE DECISION OF THE COURT OF CLAIMS IN THE SEASTROM CASE. SEE 38 COMP. GEN. 470; 39 COMP. GEN. 366; 40 COMP. GEN. 511; 41 COMP. GEN. 642; 42 COMP. GEN. 87; GEORGE H. SEASTROM V. UNITED STATES, 147 CT.CL. 453. AS WE HAVE EMPHASIZED IN OUR DECISIONS, THE STATUTORY PROVISIONS ARE DIRECTED TOWARD THE ELIMINATION OF ALL ASPECTS OF FAVORITISM TOWARD, AND IMPROPER USE OF PERSONAL INFLUENCE ON THE PART OF, RETIRED MILITARY OFFICERS IN CONNECTION WITH SELLING AND CONTRACTING OR NEGOTIATING TO SELL TO CERTAIN AGENCIES OF THE GOVERNMENT. SUCH PROVISIONS, HOWEVER, APPLY ONLY TO THOSE SITUATIONS IN WHICH THE RETIRED OFFICERS MAY BE CONSIDERED AS REPRESENTING THEMSELVES OR OTHERS BEFORE THE DEPARTMENTS CONCERNED FOR THE PURPOSE OF THE ACTUAL SALE OF PROPERTY. THEY HAVE NO APPLICATION TO ANY OTHER EMPLOYMENT, OR TO ANY OTHER ACTIVITY OF ANY BUSINESS, CONCERN OR INDIVIDUAL AND THEY DO NOT OPERATE TO ISOLATE RETIRED OFFICERS FROM SOCIAL CONTACTS WITH THEIR FELLOW OFFICERS, OR TO PREVENT THE DEPARTMENTS CONCERNED FROM PURCHASING PROPERTY FROM A SUPPLIER WHO HAS A RETIRED OFFICER IN HIS EMPLOY. DECISION OF AUGUST 8, 1962, SUPRA.

THE EMPLOYMENT SITUATIONS DISCUSSED IN THE COMMITTEE ACTION INVOLVE RETIRED OFFICERS WHO, EITHER INDIVIDUALLY OR AS MEMBERS OF FIRMS, ARE ENGAGED IN CONSULTANT ACTIVITIES FOR COMPANIES WHICH SELL, CONTRACT, OR NEGOTIATE FOR THE SALE OF SUPPLIES OR WAR MATERIALS TO AGENCIES OF THE DEPARTMENT OF DEFENSE. THE QUESTIONS PRESENTED CONCERN THE MATTER OF CONTACT OR LIAISON ACTIVITY BY CONSULTANTS WITH OFFICIALS OF THE DEPARTMENT OF DEFENSE AND WHETHER SUCH ACTIVITIES BRING THE OFFICERS WITHIN THE SCOPE OF THE ABOVE DEFINITION OF SELLING AND THE STATUTES. THE CASES DISCUSSED IN THE COMMITTEE ACTION ARE DESCRIBED THEREIN AS FOLLOWS:

* * * IN A SPECIFIC CASE, A RETIRED OFFICER HEADS HIS OWN COMPANY WHICH FUNCTIONS IN A CONSULTANT CAPACITY IN THE FIELD OF PUBLIC RELATIONS AND MANAGEMENT AND ACTS AS AGENT FOR OTHER COMPANIES WHERE NECESSARY IN THE PROMOTION OF BUSINESS "TO THE EXTENT PERMITTED BY LAW.' THESE COMPANIES MAY BE INVOLVED IN THE SALE OF SUPPLIES OR WAR MATERIALS TO DEPARTMENT OF DEFENSE AGENCIES. THE OFFICER STATES, HOWEVER, THAT HE DOES NOT CONTACT OR REPRESENT TO THE DEPARTMENT OF DEFENSE, COAST GUARD, COAST AND GEODETIC SURVEY, OR PUBLIC HEALTH SERVICE FOR THE PURPOSE OF ,SELLING.' IT IS ASSUMED, HOWEVER, THAT EMPLOYEES OF THE RETIRED OFFICER, I.E., OF HIS CONSULTANT FIRM, DO IN FACT CONTACT AGENCIES OF THE DEPARTMENT OF DEFENSE FOR THAT PURPOSE. IN OTHER CASES, RETIRED REGULAR OFFICERS ARE DIRECTLY EMPLOYED AS CONSULTANTS BY THE MANUFACTURING COMPANIES.

IN THE DOD DIRECTIVE AND IN SEVERAL COMPTROLLER GENERAL DECISIONS, THE ASPECT OF CONTACT OR LIAISON ACTIVITY IS EMPHASIZED AS A FACTOR BRINGING THE PROHIBITION OF THE STATUTES INTO PLAY. SEE 40 COMP. GEN. 511, B- 147879, 14 (4) APR 62, AND THE UNDERSCORED PORTIONS OF THE DIRECTIVE QUOTED ABOVE. CONSULTANTS MAY OR MAY NOT HAVE CONTACT OR LIAISON ACTIVITY WITH OFFICIALS OF THE DEPARTMENT OF DEFENSE. DOES THE ABSENCE OF PERSONAL CONTACT MAKE THE STATUTORY PROHIBITIONS INAPPLICABLE IN THE ABSENCE OF PERSONAL CONTACT MAKE THE STATUTORY PROHIBITIONS INAPPLICABLE IN THE SPECIFIC CASE EVEN THOUGH THE ADMITTED PURPOSE OF THE CONSULTANT ACTIVITY IS THE PROMOTION OF BUSINESS? OTHERWISE STATED, CAN A PERSON BE "ENGAGED IN SELLING" FOR OTHERS WITHOUT CONTACT, DIRECT OR INDIRECT, WITH THE BUYING AGENCY?

THERE ARE CASES OF CONTACT OR LIAISON ACTIVITY WITH OFFICIALS OF DOD WHERE THE CONTACT IS NOT FOR THE DIRECT PURPOSE OF NEGOTIATING FOR A CONTRACT NOR, AS TO EITHER OR BOTH THE CONSULTANT OR THE GOVERNMENT OFFICIAL, BY PARTIES AUTHORIZED TO COMMIT THEIR RESPECTIVE EMPLOYERS TO A CONTRACT OR IN A POSITION TO INFLUENCE THE GRANTING OF A CONTRACT. EXAMPLE WOULD BE THE CONSULTANT WHO IS A TECHNICAL SPECIALIST WHO CONTACTS A COUNTERPART TECHNICAL SPECIALIST IN DOD FOR THE PURPOSE OF ACQUIRING TECHNICAL INFORMATION. IS SUCH A PERSON ENGAGED IN "SELLING" IF THE INFORMATION RELATES TO THE REQUIREMENTS OF THE SERVICE, AND COULD BEAR ON WHETHER OR NOT THE CONSULTANT'S EMPLOYER WILL OR WILL NOT SEEK A CONTRACT, EVEN THOUGH NEITHER THE RETIRED OFFICER (NOR) THE PERSON CONTACTED HAS ANY AUTHORITY TO COMMIT THEIR RESPECTIVE EMPLOYERS TO A CONTRACT?

THE COMMITTEE ACTION REFERS TO THE TERM "IS ENGAGED" IN SELLING, ETC., AS USED IN THE STATUTE AND STATES THAT THIS WOULD SEEM TO REQUIRE AN AFFIRMATIVE SHOWING OF "SELLING" ACTIVITY ON THE PART OF THE RETIRED OFFICER, AND NOT MERELY A SHOWING OF HIS EXPOSURE TO A POSSIBILITY OF SUCH ACTIVITY, E.G., WHEN HE MAKES A CONTACT FOR THE PURPOSE OF ACQUIRING TECHNICAL INFORMATION. IT IS SAID TO BE THE COMMITTEE'S VIEW THAT NOT EVERY PRECONTRACT CONTACT CAN REASONABLY BE CONSIDERED AS "CONDUCT THAT TEMPTS FAVORITISM" IN THE SENSE THAT SUCH EXPRESSION IS USED IN 40 COMP. GEN. 511. THE DECISION REPORTED AT 40 COMP. GEN. 511 DID NOT CONSIDER AN ACTUAL SALES TRANSACTION BUT INVOLVED THE TERMS OF A PROPOSED EMPLOYMENT CONTRACT AND WE SAID THAT WE COULD NOT APPROVE AS EXEMPT FROM THE CITED STATUTES THE RETIRED OFFICER'S PROPOSED EMPLOYMENT WHILE THE CONTRACT CONTAINED A PROVISION THAT WOULD HAVE REQUIRED HIM TO VISIT MILITARY INSTALLATIONS AND CONSULT WITH VARIOUS OFFICIALS FOR THE PURPOSE OF DETERMINING WHERE A CURRENT OR FUTURE NEED MAY EXIST FOR THE PRODUCTS WHICH HIS EMPLOYER INTENDED TO OFFER FOR SALE TO SUCH INSTALLATIONS OR OFFICIALS. OUR CONCLUSION WAS BASED ON THE VIEW THAT IF THE STATUTES WERE TO BE COMPLETELY EFFECTIVE, THE CONTACTS CONTEMPLATED BY THE CONTRACT PROVISION MUST BE REGARDED IN THE FIRST INSTANCE AS BEING FOR THE PURPOSE OF SELLING. WE RECOGNIZE, HOWEVER, THAT SUCH A PRIMA FACIE CASE MAY BE REBUTTED BY THE ACTUAL FACTS IN A PARTICULAR CASE, BUT SUCH CONTINGENCY AFFORDED NO BASIS FOR IGNORING THE APPARENTLY INTENDED SALE RESULTS OF THE CONTACTS.

WHILE WE AGREE THAT NOT EVERY PRECONTRACT CONTACT IS TO BE VIEWED AS A SALE ACTIVITY FOR PURPOSES OF THE STATUES, IT IS OUR VIEW AS INDICATED ABOVE THAT SUCH CONTACTS GENERALLY, EITHER DIRECT OR INDIRECT, WITH OFFICIALS OF DEFENSE AGENCIES BY RETIRED OFFICERS REPRESENTING COMPANIES WHO SELL SUPPLIES OR WAR MATERIALS TO THOSE AGENCIES SHOULD BE VIEWED AS COMING WITHIN THE SCOPE OF THE STATUTES AND THE PROVISIONS OF THE DEPARTMENT OF DEFENSE DIRECTIVE UNLESS CLEARLY AND ADEQUATELY SHOWN TO BE FOR SOME OTHER PURPOSE. WE SEE NO JUSTIFIABLE BASIS FOR MAKING A DISTINCTION FOR THE PURPOSE OF THE LAW AND REGULATIONS, BETWEEN A RETIRED OFFICER WHO HEADS HIS OWN CONSULTANT FIRM WHEN SUCH FIRM ACTS AS AGENT FOR OTHER MANUFACTURING COMPANIES, AND A RETIRED OFFICER WHO IS DIRECTLY EMPLOYED AS A CONSULTANT BY A MANUFACTURING COMPANY, WHERE THE PURPOSE OF THE CONSULTANT ACTIVITY IN EACH INSTANCE IS TO PROMOTE THE SALE OF SUPPLIES OR WAR MATERIALS TO AGENCIES OF THE DEPARTMENT OF DEFENSE.

PRIVATE EMPLOYMENT OF A RETIRED OFFICER IN AN EXECUTIVE OR ADMINISTRATIVE CONSULTANT CAPACITY WHICH DOES NOT CONTEMPLATE OR REQUIRE ANY SALES ACTIVITY EITHER DIRECT OR INDIRECT WOULD NOT, HOWEVER, COME WITHIN THE PURVIEW OF THE STATUTES. SEE 41 COMP. GEN. 784; 41 COMP. GEN. 799; 42 COMP. GEN. 87, SUPRA. HENCE, THE MERE FACT THAT A FIRM'S BASIC MISSION IS TO SELL PRODUCTS FOR OTHERS OR THE FACT THAT OTHER EMPLOYEES OF THE FIRM CONTACT AGENCIES OF THE DEPARTMENT OF DEFENSE FOR SALES PURPOSES WOULD NOT RENDER THE STATUTES OPERATIVE AGAINST THE RETIRED OFFICER WHO HEADS THE CONSULTANT FIRM, OR THE RETIRED OFFICER WHO IS EMPLOYED AS A CONSULTANT, SO LONG AS HE DOES NOT CONTACT, EITHER DIRECTLY OR INDIRECTLY, DEFENSE PERSONNEL FOR ANY OF THE PURPOSES ENUMERATED IN THE ABOVE REFERRED TO DEFINITION OF "SELLING" OR OTHERWISE PARTICIPATE IN THE SELLING PROCESS. THEREFORE, A RETIRED OFFICER WHO HEADS A CONSULTANT FIRM, OR WHO IS EMPLOYED AS A CONSULTANT, NEED NOT SOLELY BY VIRTUE OF HIS EMPLOYMENT IN THAT CAPACITY, BE REGARDED AS ENGAGED IN SALES ACTIVITIES WITHIN THE PURVIEW OF THE STATUTE.

CONCERNING THOSE CASES INVOLVING CONTACTS BY TECHNICAL CONSULTANTS WITH DEFENSE TECHNICIANS, WE HAVE RECOGNIZED THAT NOT EVERY CONTACT BY A RETIRED OFFICER IS TO BE VIEWED AS COMING WITH THE SCOPE OF THE STATUTE. WE DO NOT BELIEVE THAT A CONTACT BY A RETIRED OFFICER IN HIS CAPACITY AS A NONCONTRACTING TECHNICAL CONSULTANT WITH A NONCONTRACTING TECHNICAL SPECIALIST WHICH INVOLVES NO SALES ACTIVITIES BUT IS MERELY FOR THE PURPOSE OF ACQUIRING TECHNICAL INFORMATION, WHETHER ABOUT THE FUTURE NEEDS AND PROGRAMS OF THE SERVICE OR FOR OTHER PURPOSES, MUST BE VIEWED ON THE BASIS OF THE CONTACT ALONE AS SUBJECTING THE OFFICER TO THE PROSCRIPTION OF THE MENTIONED ANTI-SALES STATUTES. NOR DO WE BELIEVE THAT AN OFFICER WHO OCCASIONALLY ACCOMPANIES OTHER MEMBERS OF HIS FIRM AS A TECHNICAL ADVISER AT MEETINGS WITH DEPARTMENT OF DEFENSE PERSONNEL TO DISCUSS PERFORMANCE OR PROGRESS OR SIMILAR MATTERS UNDER AWARDED CONTRACTS MAY REASONABLY BE VIEWED AS BEING ENGAGED IN SELLING, ETC., FOR THE PURPOSES OF THE STATUTORY PROVISIONS. HOWEVER, SUCH MEETINGS FOR THE PURPOSE OF DISCUSSING ANY SUPPLY PROCUREMENT PROPOSALS OR FOR THE PURPOSE OF NEGOTIATING OR DISCUSSING PROPOSED CHANGES IN ANY OF THE TERMS OF AN EXISTING CONTRACT, WOULD SEEM CLEARLY TO COME WITHIN THE PURVIEW OF THE PROVISIONS OF THE DEFINITION CONTAINED IN THE DEPARTMENT OF DEFENSE DIRECTIVE AND, THEREFORE, IT IS OUR VIEW THAT THE OFFICER'S ATTENDANCE AT SUCH MEETINGS MUST BE VIEWED AS PARTICIPATION IN THE PROSCRIBED ACTIVITIES. 42 COMP. GEN. 87. IN CONNECTION WITH THE COMMITTEE'S DISCUSSION OF UNOFFICIAL CONTACTS OF RETIRED OFFICERS WITH FORMER ASSOCIATES IN THE SERVICE AS COMPARED TO OFFICIAL CONTACTS, WE SAID IN OUR DECISION OF JUNE 12, 1962, B-148699, 41 COMP. GEN. 799, 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. WE ARE NOT UNMINDFUL, HOWEVER, OF THE FACT THAT RETIRED OFFICERS MAY CONTACT DEPARTMENTAL OFFICIALS FOR SALES PURPOSES AT PLACES OTHER THAN GOVERNMENT FACILITIES. WHILE RECOGNIZING THE DIFFICULTY OF POLICING UNOFFICIAL CONTACTS BY RETIRED OFFICERS AT SOCIAL GATHERINGS, THE FACT, WHEN ESTABLISHED, THAT A CONTACT FOR THE PURPOSE OF SELLING TO ONE OF THE DESIGNATED AGENCIES WAS MADE AT A SOCIAL GATHERING WOULD NOT MAKE IT ANY THE LESS A SALES ACTIVITY FOR WHICH A FORFEITURE OF RETIRED PAY WOULD BE REQUIRED. THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.