B-152338, DEC. 6, 1963

B-152338: Dec 6, 1963

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EVANS WAS TO BE PAID AT THE RATE OF $11. THE CONTRACTOR'S RIGHT TO SALARY SHALL BE LIMITED TO THAT WHICH WOULD HAVE ACCRUED HAD THE MOST DIRECT AND EXPEDITIOUS REGULARLY SCHEDULED AIR ROUTE BEEN USED.'. UNDER ARTICLE II-B-2 THE CONTRACTOR WAS ENTITLED. DURING THE PERIOD FOR WHICH HE IS ENTITLED TO SALARY. IT IS REPORTED THAT DR. THE TOTAL LEAVE EARNED WAS 36 DAYS. THE DATE ON WHICH HE RETURNED TO HIS POINT OF ORIGIN WHICH DATE WAS ALSO THE EXPIRATION DATE OF THE 22 DAYS' VACATION LEAVE. IT IS EXPLAINED THAT U.K.T.S.D. WAS RELUCTANT TO PAY FOR THE LEAVE TAKEN BECAUSE OF THE LIMITATIONS SET FORTH IN ARTICLE II-A-1 CONCERNING SALARY. EVANS AND THE GOVERNMENT OF KENYA IS BASED UPON AN INTERNATIONAL AGREEMENT FOR TECHNICAL COOPERATION BETWEEN THE GOVERNMENT OF THE UNITED STATES AND THE GOVERNMENT OF THE UNITED KINGDOM ON BEHALF OF ITS TERRITORIES.

B-152338, DEC. 6, 1963

TO DAVID E. BELL, ADMINISTRATOR, AGENCY FOR INTERNATIONAL DEVELOPMENT:

WE REFER TO LETTER DATED AUGUST 19, 1963, FROM MR. MURRAY GRAY, CHIEF, CONTRACTS STAFF, BUREAU FOR AFRICA AND EUROPE, REQUESTING OUR DECISION WITH RESPECT TO THE APPROVAL FOR PAYMENT OF A VOUCHER TO THE UNITED KINGDOM TREASURY AND SUPPLY DELEGATION, HEREINAFTER REFERRED TO AS U.K.T.S.D., AS AN AUTHORIZED REIMBURSABLE EXPENSE UNDER AN ICA FINANCED AGREEMENT WITH DR. DANIEL D. EVANS CONCERNING A PAYMENT FOR VACATION LEAVE AS AUTHORIZED UNDER SUCH AGREEMENT.

ON FEBRUARY 22, 1960, DR. EVANS AND THE GOVERNMENT OF KENYA, AS REPRESENTED BY U.K.T.S.D., EXECUTED AN AGREEMENT FOR THE PERFORMANCE BY DR. EVANS OF CERTAIN SERVICES AS A SOIL SPECIALIST TO ASSIST THE KENYA GOVERNMENT IN ITS AGRICULTURAL DEVELOPMENT PROJECT. ARTICLE IV OF THIS AGREEMENT PROVIDED FOR PAYMENT DURING THE PERIOD FROM FEBRUARY 22, 1960, THROUGH SEPTEMBER 30, 1962, FOR THE SERVICES OF DR. EVANS WITH A MAXIMUM UNITED STATES DOLLAR PAYMENT OF $34,000 AUTHORIZED UNDER ARTICLE II-F.

UNDER ARTICLE II-A-1 DR. EVANS WAS TO BE PAID AT THE RATE OF $11,500 PER YEAR COMMENCING ON THE DATE OF HIS DEPARTURE FOR KENYA FROM HIS HOME OR NORMAL PLACE OF BUSINESS IN THE UNITED STATES AND TO CONTINUE "UNTIL THE DATE OF HIS RETURN TO HIS POINT OF ORIGIN IN THE UNITED STATES * * * IMMEDIATELY UPON COMPLETION OF WORK IN KENYA.' THIS ARTICLE FURTHER PROVIDED THAT "IF THE CONTRACTOR ELECTS WITH THE CONSENT OF THE GOVERNMENT TO TRAVEL TO KENYA AND/OR RETURN BY MEANS OF TRANSPORTATION OTHER THAN THE MOST DIRECT AND EXPEDITIOUS AIR ROUTE, THE CONTRACTOR'S RIGHT TO SALARY SHALL BE LIMITED TO THAT WHICH WOULD HAVE ACCRUED HAD THE MOST DIRECT AND EXPEDITIOUS REGULARLY SCHEDULED AIR ROUTE BEEN USED.'

UNDER ARTICLE II-B-2 THE CONTRACTOR WAS ENTITLED, DURING THE PERIOD FOR WHICH HE IS ENTITLED TO SALARY,"TO VACATION LEAVE AT FULL PAY EARNED AT THE RATE OF ONE AND ONE-HALF (1 1/2 ( DAYS PER MONTH WORKED OR, AT THE DISCRETION OF THE GOVERNMENT, TO ITS CASH EQUIVALENT IN AN AMOUNT NOT TO EXCEED LEAVE EARNED DURING ONE-HALF ( 1/2 ( CALENDAR YEAR. * * * SUCH LEAVE SHALL BE TAKEN ONLY AT SUCH TIMES AS MAY BE APPROVED AND DIRECTED BY THE GOVERNMENT.'

IT IS REPORTED THAT DR. EVANS ENTERED ON DUTY ON APPROXIMATELY JULY 1, 1960. HE COMPLETED HIS WORK AND LEFT ON JULY 1, 1962, AND SPENT 22 DAYS OF HIS EARNED LEAVE EN ROUTE TO HIS POINT OF ORIGIN. THE TOTAL LEAVE EARNED WAS 36 DAYS, 14 OF WHICH HE HAD TAKEN IN EAST AFRICA. DR. EVANS REQUESTED THAT HE BE PAID THROUGH AUGUST 4, 1962, THE DATE ON WHICH HE RETURNED TO HIS POINT OF ORIGIN WHICH DATE WAS ALSO THE EXPIRATION DATE OF THE 22 DAYS' VACATION LEAVE. U.K.T.S.D. PAID HIM THROUGH JULY 17, 1962, WHICH DATE INCLUDES AUTHORIZED TRAVEL TIME AND THE LEAVE EARNED FOR ONE- HALF CALENDAR YEAR AND AUTHORIZED TO BE PAID AS A CASH EQUIVALENT UNDER ARTICLE II-B-2 ABOVE.

IT IS EXPLAINED THAT U.K.T.S.D. WAS RELUCTANT TO PAY FOR THE LEAVE TAKEN BECAUSE OF THE LIMITATIONS SET FORTH IN ARTICLE II-A-1 CONCERNING SALARY. THIS PROVISION, QUOTED ABOVE, PERMITS PAYMENT OF SALARY UNTIL THE DATE OF RETURN TO THE POINT OF ORIGIN IMMEDIATELY UPON COMPLETION OF WORK IN KENYA THUS PERMITTING HIM AFTER JULY 1, 1962, TO BE PAID ONLY TRAVEL TIME BY THE MOST DIRECT AND EXPEDITIOUS REGULARLY SCHEDULED AIR ROUTE (4 DAYS) AND THE ADDITIONAL NINE WORKING DAYS FOR THE LUMP-SUM VACATION LEAVE, OR UNTIL JULY 17, 1962.

DR. EVANS HAS REQUESTED RECONSIDERATION OF HIS CLAIM BY U.K.T.S.D. AND THAT AGENCY HAS AGREED TO MAKE PAYMENT FOR THE ADDITIONAL AMOUNT IF THEY RECEIVE ASSURANCE OF REIMBURSEMENT FROM YOUR AGENCY. YOU RECOMMEND THAT WE AUTHORIZE THE REIMBURSEMENT TO U.K.T.S.D. FOR THE VACATION LEAVE PAYMENT TO DR. EVANS.

THE AGREEMENT FOR PERSONAL SERVICES EXECUTED BETWEEN DR. EVANS AND THE GOVERNMENT OF KENYA IS BASED UPON AN INTERNATIONAL AGREEMENT FOR TECHNICAL COOPERATION BETWEEN THE GOVERNMENT OF THE UNITED STATES AND THE GOVERNMENT OF THE UNITED KINGDOM ON BEHALF OF ITS TERRITORIES, AND, IN PARTICULAR, A TECHNICAL COOPERATION PROGRAM OR PROJECT AGREEMENT BETWEEN THE TERRITORIAL GOVERNMENT OF KENYA AND THE GOVERNMENT OF THE UNITED STATES AUTHORIZED PURSUANT TO THE PRIMARY AGREEMENT. THE CONTRACT IN QUESTION BETWEEN DR. EVANS AND THE GOVERNMENT OF KENYA WAS MADE IN CONFORMANCE WITH THE UNDERTAKING OF THE UNITED STATES GOVERNMENT TO FURNISH QUALIFIED TECHNICAL PERSONS AND TO PAY THEIR SALARIES DURING THEIR EMPLOYMENT AND TRANSPORTATION COSTS IN THE UNITED STATES PURSUANT TO THE AFOREMENTIONED INTERNATIONAL AGREEMENTS.

THE QUESTION FOR RESOLUTION HERE IS WHETHER THE TERMS OF THE CONTRACT PERMITTED THE TAKING OF LEAVE AFTER THE COMPLETION OF THE WORK ASSIGNMENT BUT BEFORE THE TERMINATION DATE OF THE CONTRACT, (SEPTEMBER 30, 1962), AND WHERE THE TOTAL SUM OBLIGATED UNDER THE CONTRACT ($34,000), WOULD NOT BE EXCEEDED. SUCH RESOLUTION REQUIRES THE EXAMINATION AND EVALUATION OF THE PROVISIONS IN ARTICLE II CONCERNING SALARY AND LEAVE. ARTICLE II-A-1 PROVIDES THE TERMS AND CONDITIONS UNDER WHICH SALARY WILL BE PAID TO DR. EVANS. IT FIXES THE DATE ON WHICH THE SALARY COMMENCES AND ENDS. AS TO THE LATTER, SALARY WILL CONTINUE UNTIL THE DATE OF THE CONTRACTOR'S "RETURN TO HIS POINT OF ORIGIN IN THE UNITED STATES * * * IMMEDIATELY UPON COMPLETION OF WORK IN KENYA.' IT IS THESE WORDS "IMMEDIATELY UPON COMPLETION OF WORK IN KENYA" THAT RAISE DOUBT BY U.K.T.S.D. AS TO THE LEGALITY OF PERMITTING DR. EVANS TO REMAIN IN A DUTY STATUS BEYOND JULY 1, 1962, AND A SALARY STATUS BEYOND JULY 17,1962, PARTICULARLY WHEN VIEWED WITH THE TRAVEL TIME LIMITATION EXPRESSED IN THE FOLLOWING SENTENCE OF THE ARTICLE. IN ORDER TO EFFECTIVELY DETERMINE THE MEANING OF THESE PROVISIONS AND TO GIVE PROPER EFFECT TO THE LEAVE RIGHTS GRANTED IN THE SUCCEEDING SUBARTICLE IT IS NECESSARY TO ESTABLISH A DATE FOR THE TIME OF THE "COMPLETION OF WORK IN KENYA" TO PROPERLY FIX THE DETERMINATION DATE FOR THE PAYMENT OF SALARY UNDER THE AGREEMENT. WE DO NOT VIEW THIS PROVISION AS REQUIRING THE FIXING OF THIS DATE CONCURRENT WITH THE CESSATION OF THE PHYSICAL SERVICES OF THE CONTRACTOR, BUT SUCH DATE CONCEIVABLY COULD BE ADVANCED TO THE END OF APPROVED VACATION LEAVE IF PROPERLY APPLIED FOR. ACCORDINGLY, OUR OFFICE DOES NOT REGARD THE ABOVE- MENTIONED PROVISIONS CONCERNING SALARY, AS PREVENTING THE EXTENSION OF THE DUTY STATUS OF DR. EVANS, OR PROHIBITING SALARY PAYMENTS FOR LEAVE AUTHORIZED AND TAKEN PURSUANT TO THE CONTRACT, AFTER THE DATE OF CESSATION OF THE PHYSICAL SERVICES OF THE CONTRACTOR.

ARTICLE II-B-2 PROVIDES FOR VACATION LEAVE EARNED AT THE RATE OF ONE AND ONE-HALF (1 1/2 ( DAYS PER MONTH WORKED OR TO A CASH EQUIVALENT OF LEAVE EARNED FOR ONE-HALF YEAR (9 DAYS) PAYABLE UPON EXPIRATION OF THE AGREEMENT. LEAVE WAS TO BE TAKEN ONLY AT SUCH TIMES AS MAY BE APPROVED AND DIRECTED BY THE GOVERNMENT OF KENYA. THE RIGHT TO VACATION LEAVE AS OPPOSED TO THE CASH EQUIVALENT PAYMENT IS DEPENDENT UPON THE APPROVAL OF THE LEAVE BY AN OFFICIAL OF THE GOVERNMENT OF KENYA. HAVING DECIDED SUPRA THAT THE CONTRACT SALARY PROVISIONS DO NOT REQUIRE THE FIXING OF THE DATE OF COMPLETION OF WORK IN KENYA AT THE TIME OF THE CESSATION OF PHYSICAL SERVICES, THERE WOULD APPEAR TO BE NO BAR TO THE TAKING OF LEAVE AFTER THE PHYSICAL WORK WAS COMPLETED IF APPROVAL THEREFOR WAS OBTAINED FROM THE REPRESENTATIVES OF THE GOVERNMENT OF KENYA. ON THE MATTER OF APPROVAL OF LEAVE THE FILE BEFORE US CONTAINS A COPY OF A LETTER DATED NOVEMBER 26, 1962, ADDRESSED TO MR. MURRAY GRAY OF YOUR STAFF FROM DR. EVANS CONTAINING IN PART THE FOLLOWING:

"I DID NOT, AS I RECALL, GET WRITTEN PERMISSION TO TAKE LEAVE ON THE WAY HOME NOR DID I FOR THE LEAVE TAKEN LOCALLY, BUT ONLY OBTAINED VERBAL APPROVAL FROM THE OFFICER IN CHARGE AT SCOTT AGRICULTURAL LABORATORIES AND THE CHIEF RESEARCH OFFICER IN THE DEPARTMENT OF AGRICULTURE. I DID NOT THINK THAT THERE WOULD BE ANY QUESTIONS SINCE THE AMOUNT OF LEAVE EARNED WAS SPECIFIED AND I WAS ADHERING TO THE CONTRACT.'

THE FILE ALSO CONTAINS A LETTER DATED DECEMBER 10, 1962, OVER THE LETTERHEAD OF THE MINISTRY OF AGRICULTURE AND ANIMAL HUSBANDRY, SCOTT AGRICULTURAL LABORATORIES SIGNED BY E. BELLIS, OFFICER-IN-CHARGE, WHICH MINISTRY IS APPARENTLY A PART OF THE GOVERNMENT OF KENYA, READING AS FOLLOWS:

"IN CONNECTION WITH CORRESPONDENCE WHICH I UNDERSTAND DR. D. D. EVANS HAS BEEN HAVING WITH YOU ON THE SUBJECT OF THE LEAVE DUE TO HIM AT THE TIME OF HIS DEPARTURE FROM KENYA, I WOULD ADVISE YOU THAT DR. EVANS DID NOT TAKE THE 22 DAYS DUE TO HIM ON THE DATE OF HIS DEPARTURE FROM KENYA BECAUSE SO DOING WOULD HAVE INTERFERED WITH, AND MADE IMPOSSIBLE, THE COMPLETION AND HANDLING OVER OF HIS WORK. IN THE CIRCUMSTANCES I CONSIDER HIM FULLY ENTITLED TO PAYMENT FOR THESE DAYS, EVEN THOUGH HE LEFT KENYA BEFORE TAKING THIS BALANCE OF HIS LEAVE.'

IT IS APPARENT FROM THE SUBSTANCE OF THE ABOVE-QUOTED CORRESPONDENCE THAT DR. EVANS OBTAINED VERBAL APPROVAL FOR THE LEAVE TO BE TAKEN EN ROUTE HOME AND THAT HIS INABILITY TO TAKE THE 22 DAYS LEAVE PRIOR TO THE COMPLETION OF HIS WORK ASSIGNMENT IN KENYA WAS NOT DUE TO ANY FAULT OF HIS BUT SERVED THE INTEREST OF THE GOVERNMENT OF KENYA. WE NOTE THAT THE CONTRACT IS SILENT AS TO AUTHORIZED VACATION LEAVE IN KIND AFTER THE COMPLETION OF THE WORK ASSIGNMENT IN KENYA. HOWEVER, WE FIND NOTHING IN THE CONTRACT PROVISIONS WHICH WOULD REQUIRE A HOLDING THAT LEAVE REQUESTED TO BE TAKEN EN ROUTE HOME COULD NOT BE CONSIDERED PROPER FOR APPROVAL AS CONSTRUCTIVE VACATION LEAVE UNDER THE CONTRACT TO BE TAKEN IN KENYA AFTER THE COMPLETION OF THE WORK ON JULY 1, 1962, THUS PERMITTING THE EXTENSION OF THE CONSTRUCTIVE DATE OF COMPLETION OF THE WORK IN KENYA AND DEPARTURE THEREFROM TO THE END OF THE 22 WORKING DAYS OF LEAVE AFTER JULY 1, 1962, OR TO JULY 31, 1962. ADDING THE CONSTRUCTIVE TRAVEL TIME VIA THE MOST DIRECT AND EXPEDITIOUS REGULARLY SCHEDULED AIR ROUTE TO THE CONSTRUCTIVE DATE OF THE COMPLETION OF THE WORK IN KENYA ABOVE WOULD PERMIT PAYMENT TO DR. EVANS OF SALARY TO THE DATE CLAIMED, AUGUST 4, 1962.

FOR THESE REASONS OUR OFFICE WOULD HAVE NO OBJECTION TO THE REIMBURSEMENT BY YOUR AGENCY TO U.K.T.S.D. OF THE ADDITIONAL AMOUNT CLAIMED BY DR. EVANS, UPON PRESENTATION OF EVIDENCE OF SUCH PAYMENT TO DR. EVANS BY U.K.T.S.D. ..END :