B-151704, JUN. 25, 1963

B-151704: Jun 25, 1963

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THERE WAS AN AUTHORIZATION TO TRAVEL HOME VIA WASHINGTON. FURTHER INDICATES THAT THE AFOREMENTIONED CONTRACT WAS COVERED BY A PROJECT AGREEMENT BETWEEN YOUR PREDECESSOR AGENCY. AFIS AND WAS AMENDED SO AS TO PERMIT UNDER YOUR REGULATIONS A FINAL CONTRIBUTION DATE OF APRIL 18. SEILER WAS ADVISED BY LETTER DATED DECEMBER 10. THE VOUCHER IS FOR THE PAYMENT OF TRAVEL EXPENSES IN THE UNITED STATES INCIDENT TO THE RETURN HOME AND INCLUDES PER DIEM ALLOWANCES AND SALARY FROM JANUARY 1. (3) THERE WAS DOUBT AS TO WHETHER THERE WAS A PROPER OBLIGATION OF FUNDS SINCE THERE WAS NO EVIDENCE OF THE EXTENSION OF THE PROJECT AGREEMENT'S FINAL CONTRIBUTION DATE. THE QUESTION BEFORE THIS OFFICE IS WHETHER THE ITALIAN GOVERNMENT THROUGH ITS AGENCY DELTEC MAY BE AUTHORIZED TO MAKE FINAL PAYMENT TO MR.

B-151704, JUN. 25, 1963

TO ADMINISTRATOR, AGENCY FOR INTERNATIONAL DEVELOPMENT:

WE REFER TO LETTER DATED JUNE 3, 1963, FROM MR. MURRAY GRAY, CHIEF, CONTRACTS STAFF, BUREAU FOR AFRICA AND EUROPE, WHICH REQUESTS OUR DECISION WITH RESPECT TO THE APPROVAL FOR PAYMENT OF A VOUCHER TO THE ITALIAN GOVERNMENT REPRESENTING EXPENSES INCURRED BY MARTIN A. SEILER, UNDER AN ICA FINANCED AGREEMENT WITH AN AGENCY OF THE ITALIAN GOVERNMENT, SUBSEQUENT TO THE EXPIRATION DATE OF THE AGREEMENT.

THE FACTS SHOW THAT ON NOVEMBER 16, 1956, MARTIN A. SEILER AND THE ITALIAN FIDUCIARY ADMINISTRATION FOR SOMALIA (HEREINAFTER REFERRED TO AS AFIS) AS REPRESENTED BY THE ITALIAN TECHNICAL DELEGATION, WASHINGTON, D.C. (HEREINAFTER REFERRED TO AS DELTEC) EXECUTED AN AGREEMENT FOR THE PERFORMANCE IN SOMALIA BY MR. SEILER OF CERTAIN SERVICES AS A SPECIALIST TO ASSIST AFIS IN ITS PROGRAM OF WATER RESOURCE DEVELOPMENT. UNDER ARTICLE IV-2 THE AGREEMENT PROVIDED FOR SERVICES DURING THE PERIOD NOVEMBER 16, 1956, THROUGH DECEMBER 31, 1958, WITH A MAXIMUM UNITED STATES DOLLAR PAYMENT OF $34,000 (ARTICLE V). THE CONTRACT ALSO PROVIDED THAT MR. SEILER WOULD BE FURNISHED TRANSPORTATION TO AND FROM SOMALIA IN ADDITION TO HIS SALARY. SPECIFICALLY UNDER ARTICLE II, SECTION 4, TRAVEL ALLOWANCE, THERE WAS AN AUTHORIZATION TO TRAVEL HOME VIA WASHINGTON, D.C., IF SO INSTRUCTED BY DELTEC. PARAGRAPH C OF THE APPENDIX TO THE CONTRACT PROVIDED THAT THE SPECIALIST MAY AT ANY TIME CONFER WITH OFFICIALS OF THE UNITED STATES GOVERNMENT CONCERNING MATTERS COVERED BY THE AGREEMENT.

THE LETTER OF JUNE 3, 1963, FURTHER INDICATES THAT THE AFOREMENTIONED CONTRACT WAS COVERED BY A PROJECT AGREEMENT BETWEEN YOUR PREDECESSOR AGENCY, FOREIGN OPERATIONS ADMINISTRATION (FOA), AND AFIS AND WAS AMENDED SO AS TO PERMIT UNDER YOUR REGULATIONS A FINAL CONTRIBUTION DATE OF APRIL 18, 1961. THE PROJECT IMPLEMENTATION ORDER, AS AMENDED, ISSUED PURSUANT TO THE ABOVE-MENTIONED PROJECT AGREEMENT AND AUTHORIZING THE EXECUTION OF THE CONTRACT REFERRED TO ABOVE, SPECIFIED THE DURATION OF ASSIGNMENT AS NOT LATER THAN DECEMBER 31, 1958.

THE FILE SHOWS THAT ON DECEMBER 8, 1958, THE ITALIAN GOVERNMENT INCIDENT TO WINDING UP THE CONTRACT REQUESTED THE CONCURRENCE FROM THE USOM MISSION REPRESENTATIVE IN SOMALIA, FOR A SEVEN-DAY STOPOVER IN WASHINGTON FOR CONFERENCES WITH ICA AND DELTEC AND A THREE-DAY STOPOVER IN DENVER, COLORADO FOR CONFERENCES WITH MR. T. AHRENS DURING THE RETURN TRIP FROM SOMALIA TO MR. SEILER'S HOME. MR. SEILER WAS ADVISED BY LETTER DATED DECEMBER 10, 1958, FROM DELTEC, THAT THE REQUESTED STOPOVERS FOR CONFERENCES HAD BEEN APPROVED. THE SUPPORTING RECORDS WITH THE VOUCHERS SHOW THAT MR. SEILER LEFT SOMALIA ON DECEMBER 18, 1958, AND AFTER CONFERENCES IN WASHINGTON AND DENVER ARRIVED AT HIS HOME IN LOS ANGELES, CALIFORNIA, ON JANUARY 10, 1959. THE VOUCHER IS FOR THE PAYMENT OF TRAVEL EXPENSES IN THE UNITED STATES INCIDENT TO THE RETURN HOME AND INCLUDES PER DIEM ALLOWANCES AND SALARY FROM JANUARY 1, THROUGH 10, 1959. PAYMENT HAS NOT BEEN AUTHORIZED BY YOUR AGENCY (1) FOR THE REASON THAT WRITTEN CONCURRENCE OF YOUR AGENCY TO THE REQUEST OF THE ITALIAN GOVERNMENT AGENCY FOR APPROVAL OF THE CONFERENCE STOPOVERS FOR MR. SEILER COULD NOT BE FOUND, (2) FOR THE REASON THAT THE CONTRACT BETWEEN MR. SEILER AND AFIS PROVIDED FOR THE TERMINATION OF THE CONTRACTUAL RELATIONSHIP AND ALL OBLIGATIONS THEREUNDER ON DECEMBER 31, 1958, (3) THERE WAS DOUBT AS TO WHETHER THERE WAS A PROPER OBLIGATION OF FUNDS SINCE THERE WAS NO EVIDENCE OF THE EXTENSION OF THE PROJECT AGREEMENT'S FINAL CONTRIBUTION DATE.

THE QUESTION BEFORE THIS OFFICE IS WHETHER THE ITALIAN GOVERNMENT THROUGH ITS AGENCY DELTEC MAY BE AUTHORIZED TO MAKE FINAL PAYMENT TO MR. SEILER UNDER THE AFOREMENTIONED CONTRACT AND OBTAIN REIMBURSEMENT FROM YOUR AGENCY. THE EVENTS GIVING RISE TO THIS QUESTION FIND THEIR ORIGIN IN THE INTERNATIONAL AGREEMENT BETWEEN THE GOVERNMENT OF ITALY AND THE GOVERNMENT OF THE UNITED STATES DATED JUNE 28, 1954. SEE 5 U.S.T. 2922, TIAS 3150. THIS AGREEMENT PROVIDED FOR A TECHNICAL COOPERATION PROGRAM FOR THE TRUST TERRITORY OF SOMALILAND UNDER ITALIAN ADMINISTRATION AND WAS FOR THE PURPOSE OF PROMOTING ECONOMIC DEVELOPMENT OF SOMALIA PRIMARILY THROUGH A COOPERATIVE PROGRAM OF PROVIDING TECHNICAL ASSISTANCE IN THOSE AREAS REQUIRING DEVELOPMENT OF ECONOMIC RESOURCES AND PRODUCTIVE CAPACITIES. ARTICLE V OF THIS AGREEMENT IN SETTING FORTH THE CONTRIBUTIONS OF THE GOVERNMENT OF THE UNITED STATES IS QUOTED IN PERTINENT PART AS FOLLOWS:

"THE GOVERNMENT OF THE UNITED STATES, WILL FURNISH SUBJECT TO THE PROVISIONS OF ANY APPLICABLE UNITED STATES LEGISLATION EITHER THROUGH ITS OWN AGENCIES OR INSTRUMENTALITIES, OR THROUGH PERSONS OR AGENCIES ACCEPTABLE TO ITALY AND SOMALIA, QUALIFIED PERSONS SUBJECT TO THE APPROVAL OF THE COMMITTEE, IN TECHNICAL ADMINISTRATIVE, OR TEACHING CAPACITIES, ON THE BASIS OF OPERATIONAL PROGRAMS SUBMITTED BY THE COMMITTEE; AND, IN ACCORDANCE WITH THE LAWS AND REGULATIONS OF THE UNITED STATES OF AMERICA, WILL PAY THE SALARIES OF SUCH PERSONS AND THE COSTS OF TRANSPORTATION IN THE UNITED STATES FOR THEM AND THEIR FAMILIES. THE FUNDS TO PAY THESE EXPENSES SHALL BE ADMINISTERED BY THE GOVERNMENT OF THE UNITED STATES. THE GOVERNMENT OF ITALY SHALL PAY TRANSPORTATION TO AND FROM SOMALIA, LOCAL LIVING ALLOWANCES AND PER DIEM IN ACCORDANCE WITH APPLICABLE U.S. GOVERNMENT REGULATIONS OR STANDARDS.'

THE QUOTED PROVISIONS ABOVE PLACE THE RESPONSIBILITY IN THE GOVERNMENT OF THE UNITED STATES FOR THE PAYMENT OF SALARY AND TRAVEL COSTS IN THE UNITED STATES, OF PERSONNEL SELECTED TO PROVIDE SERVICES UNDER THE INTERNATIONAL AGREEMENT.

WHILE IT IS NOT SET FORTH IN THE LETTER OF JUNE 3, IT HAS BEEN INFORMALLY ASCERTAINED THAT MR. SEILER DID CONFER WITH OFFICIALS OF YOUR AGENCY IN WASHINGTON ON THE DATES SET FORTH IN THE VOUCHER. FURTHER THE DOCUMENTS SHOW THAT MR. T. AHRENS WITH WHOM MR. SEILER CONFERRED IN DENVER WAS AN EMPLOYEE OF THE RECLAMATION BUREAU, DEPARTMENT OF THE INTERIOR WITH WHOM MR. SEILER CONFERRED EN ROUTE TO SOMALIA. THESE CIRCUMSTANCES PROVIDE EVIDENCE THAT THE DELAY IN MR. SEILER'S RETURN TO HIS HOME BEYOND THE DECEMBER 31, 1958 DATE WAS PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT. WHILE NO CONTRACTUAL PRIVITY EXISTED BETWEEN MR. SEILER AND THE UNITED STATES UNDER THE CONDITIONS SET FORTH ABOVE, MR. SEILER'S SELECTION FOR THE ASSIGNMENT AND HIS SALARY AND TRAVEL COSTS IN THE UNITED STATES WERE THE OBLIGATION OF THE UNITED STATES EVEN IF PAYABLE THROUGH REIMBURSEMENT TO THE ITALIAN GOVERNMENT. IN CONNECTION WITH THE RETURN OF MR. SEILER THE CONTRACT DID PROVIDE FOR A TRAVEL ALLOWANCE VIA WASHINGTON, D.C. IF INSTRUCTED BY DELTEC AS INDICATED ABOVE. OF COURSE, WHEN THE CONTRACT WAS WRITTEN IT WAS NOT CONTEMPLATED THAT SUCH A DEVIATION WOULD RESULT IN SALARY CLAIM BEYOND DECEMBER 31, 1958. HOWEVER, HAVING SO PROVIDED IN THE CONTRACT IT MUST BE ASSUMED THAT STOPOVER CONFERENCES IN WASHINGTON WERE CONTEMPLATED AND THAT PART OF THE EXPENSES OF THE VOUCHER FOR TRAVEL VIA WASHINGTON IS CLEARLY AUTHORIZED. SINCE MR. SEILER'S WORK IN SOMALIA WAS RELATED TO THE OPERATIONS OF THE RECLAMATION BUREAU, DEPARTMENT OF THE INTERIOR, CONFERENCES WITH AN OFFICIAL OF THAT DEPARTMENT ALSO WOULD SERVE A GOVERNMENT PURPOSE. THEREFORE, NOTWITHSTANDING THE CONTRACT TERMS DID NOT PROVIDE FOR SALARY PAYMENTS AFTER DECEMBER 31, 1958, IT FOLLOWS THAT SINCE THE STOPOVERS IN WASHINGTON AND DENVER WERE FOR THE BENEFIT OF THE GOVERNMENT, AN IMPLIED CONTRACTUAL OBLIGATION WOULD ARISE THEREBY TO PAY THE SALARY AND TRAVEL ALLOWANCE OF MR. SEILER FOR THE PERIOD EXTENDED BY SUCH STOPOVERS BEYOND THE TERMINATION DATE OF THE CONTRACT AT THE SAME RATES AS THAT PAID DURING THE CONTRACT PERIOD.

ACCORDINGLY, IT IS THE OPINION OF THIS OFFICE THAT UNDER THE CIRCUMSTANCES MR. SEILER'S CLAIM IS LEGAL AND PROPER AND DELTEC MAY BE ADVISED THAT UPON RECEIPT OF EVIDENCE OF PAYMENT THEREOF TO MR. SEILER REIMBURSEMENT WILL BE MADE TO THE ITALIAN GOVERNMENT AGENCY PURSUANT TO THE INTERNATIONAL ARRANGEMENTS.