B-151720, JUN. 18, 1963

B-151720: Jun 18, 1963

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

HE IS VERY FAMILIAR WITH THE FACTS INVOLVED AND WITH THE RELEVANT PROVISIONS OF LAW AND REGULATION. THERE IS INSUFFICIENT TIME FOR A STAFF ATTORNEY TO BECOME FAMILIAR WITH THE VOLUMINOUS DOCUMENTATION IN THE CASE. PRYOR IS WILLING TO RENDER THE REQUIRED SERVICES AS AN INDEPENDENT CONTRACTOR. THE ACTING ADMINISTRATOR SAYS THAT "IN OUR OPINION HE IS UNIQUELY QUALIFIED TO PERFORM THE REQUIRED ASSISTANCE.'. THE CONTRACT IS UNDERSTOOD TO RELATE TO THE PREFABRICATED HOUSING LOAN PROGRAM WHICH IS NOW A LIQUIDATING PROGRAM THE EXPENSES OF WHICH ARE CHARGEABLE TO THE OFFICE OF THE ADMINISTRATOR REVOLVING FUND. 12 U.S.C. 1701G. WE HAVE BEEN FURNISHED A COPY OF THE PROPOSED CONTRACT WHICH IS TO BE EFFECTIVE FROM THE DATE OF EXECUTION TO THE END OF THE CURRENT FISCAL YEAR AND A COPY OF THE PROPOSED SUPPLEMENT TO THAT CONTRACT WHICH WOULD MAKE THE CONTRACT EFFECTIVE FOR FISCAL YEAR 1964.

B-151720, JUN. 18, 1963

TO ADMINISTRATOR, HOUSING AND HOME FINANCE AGENCY:

WE REFER TO THE LETTER OF THE ACTING ADMINISTRATOR DATED JUNE 5, 1963, CONCERNING THE PROPOSED NONPERSONAL SERVICES CONTRACT BETWEEN THE HOUSING AND HOME FINANCE AGENCY AND MR. GEORGE W. PRYOR FOR THE PERFORMANCE OF LEGAL SERVICES IN CONNECTION WITH THE TRIAL OF THE CASE UNITED STATES V. WOODBURY, CIVIL ACTION NO. 149-59, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON.

THE ACTING ADMINISTRATOR SAYS THAT MR. PRYOR, BEFORE HIS RETIREMENT ON DECEMBER 31, 1962, FROM YOUR AGENCY, WORKED WITH THE WOODBURY CASE, AND HE IS VERY FAMILIAR WITH THE FACTS INVOLVED AND WITH THE RELEVANT PROVISIONS OF LAW AND REGULATION. THE DEPARTMENT OF JUSTICE HAS REQUESTED YOUR OFFICE TO PROVIDE BACKGROUND ASSISTANCE AND CONSULTATION IN CONNECTION WITH THE PRETRIAL CONFERENCE IN THE CASE IN JULY 1963 AND MAY REQUEST ASSISTANCE IN CONNECTION WITH THE SUBSEQUENT TRIAL. ALSO, WE UNDERSTAND THE DEPARTMENT OF JUSTICE HAS EXPRESSED A PREFERENCE FOR MR. PRYOR'S ASSISTANCE. THEREFORE, YOU WISH TO RETAIN HIS SERVICES TO FURNISH THE UNITED STATES ATTORNEY WITH SUCH ASSISTANCE. WE UNDERSTAND THAT NO MEMBER OF YOUR PRESENT STAFF HAS SUFFICIENT PARTICULAR KNOWLEDGE OF THE FACTS AND LAW INVOLVED, AND THERE IS INSUFFICIENT TIME FOR A STAFF ATTORNEY TO BECOME FAMILIAR WITH THE VOLUMINOUS DOCUMENTATION IN THE CASE. MR. PRYOR IS WILLING TO RENDER THE REQUIRED SERVICES AS AN INDEPENDENT CONTRACTOR, AND THE ACTING ADMINISTRATOR SAYS THAT "IN OUR OPINION HE IS UNIQUELY QUALIFIED TO PERFORM THE REQUIRED ASSISTANCE.'

THE CONTRACT IS UNDERSTOOD TO RELATE TO THE PREFABRICATED HOUSING LOAN PROGRAM WHICH IS NOW A LIQUIDATING PROGRAM THE EXPENSES OF WHICH ARE CHARGEABLE TO THE OFFICE OF THE ADMINISTRATOR REVOLVING FUND. 12 U.S.C. 1701G, 1701G-1 THROUGH 1701G-3, AND 1701G-5; PUB.L. 87-741, 76 STAT. 716, 738.

WE HAVE BEEN FURNISHED A COPY OF THE PROPOSED CONTRACT WHICH IS TO BE EFFECTIVE FROM THE DATE OF EXECUTION TO THE END OF THE CURRENT FISCAL YEAR AND A COPY OF THE PROPOSED SUPPLEMENT TO THAT CONTRACT WHICH WOULD MAKE THE CONTRACT EFFECTIVE FOR FISCAL YEAR 1964. THE WORK TO BE PERFORMED IS FULLY DESCRIBED IN THE CONTRACT AND INCLUDES ASSISTING THE UNITED STATES ATTORNEY WITH PREPARATION AND TRIAL OF THE CASE, ASSISTING IN LIAISON BETWEEN YOUR AGENCY AND THE UNITED STATES ATTORNEY, MAKING A REPORT OF WORK DONE AND ORGANIZING RECORDS OF MATERIAL AND FOR POSSIBLE USE IN RELATED LITIGATION. NO PROVISION FOR SUPERVISION OF MR. PRYOR'S WORK IS INCLUDED IN THE CONTRACT AND IN PERFORMING THE WORK SPECIFIED IN THE CONTRACT IT APPEARS THAT NO SUPERVISION WILL BE EXERCISED OVER HIM TO THE EXTENT USUALLY PRESENT IN THE CASE OF AN EMPLOYER-EMPLOYEE RELATIONSHIP.

ALTHOUGH CERTAIN ASPECTS OF THE PROPOSED CONTRACT ARE COMPATIBLE WITH THE CREATION OF AN EMPLOYMENT RELATIONSHIP, SUCH AS COMPENSATION ON A TIME BASIS, THE CONTRACT PROVISIONS AS A WHOLE REASONABLY SUPPORT THE VIEW THAT MR. PRYOR WILL BE, IN FACT, AN INDEPENDENT CONTRACTOR.

THEREFORE, OUR OPINION IS THAT THE CONTRACT LEGALLY MAY BE ENTERED INTO WITH MR. PRYOR, AND THAT IN THE CIRCUMSTANCES COMPENSATION PAYMENTS NEED NOT BE REDUCED UNDER SECTION 13 (B) OF THE CIVIL SERVICE RETIREMENT ACT,5 U.S.C. 2263 (B).

WE SUGGEST, HOWEVER, THAT ADMINISTRATIVE CONSIDERATION BE GIVEN TO MODIFYING ARTICLE IVB OF THE PROPOSED CONTRACT TO REQUIRE THAT TRAVEL EXPENSES BE DETERMINED IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. THIS WE BELIEVE WILL CLARIFY THE EXTENT OF ALLOWABLE TRAVEL EXPENSES.