B-154263, JUL. 30, 1964

B-154263, JUL. 30, 1964

TO THE SECRETARY OF STATE:

WE RETURN HEREWITH FOR ADMINISTRATIVE DISPOSITION A VOUCHER AND SUPPORTING PAPERS FOR LS 257.240 ($744.74), IN FAVOR OF MR. ALFRED ATTARD FOR ANNUAL LEAVE REPORTEDLY ACCRUED TO HIS CREDIT DURING THE PERIOD OCTOBER 1960 THROUGH JUNE 1962 UNDER CONTRACT NO. S-644-FA-97, DATED OCTOBER 1, 1960, BETWEEN THE CLAIMANT AND THE UNITED STATES EMBASSY AT KHARTOUM, SUDAN.

OUR OPINION IS THAT UNDER THE TERMS OF THE CONTRACT--- WHICH WE UNDERSTAND IS STILL IN FORCE UNDER AN EXTENSION THEREOF--- THE RELATIONSHIP OF THE CLAIMANT TO THE GOVERNMENT LEGALLY IS THAT OF AN EMPLOYEE RATHER THAN THAT OF AN INDEPENDENT CONTRACTOR. IN THAT REGARD, ARTICLE 2 OF THE AGREEMENT PROVIDES FOR THE DIRECTION AND SUPERVISION OF THE CLAIMANT IN THE PERFORMANCE OF DUTIES RELATING TO THE EMBASSY AIR CONDITIONING PLANT, WHICH DUTIES ARE SPECIFIED IN DETAIL. ALSO, THAT ARTICLE PROVIDES FOR THE ASSIGNMENT OF THE CLAIMANT TO OTHER DUTIES, TIME PERMITTING, WITHIN THE SCOPE OF THE 45-HOUR WEEKLY TOUR OF DUTY PROVIDED BY ARTICLE 3.

ARTICLES 3, 4 AND 5 OF THE AGREEMENT, BY PROVIDING FOR PAYMENT ON A TIME BASIS AND FOR ANNUAL AND HOLIDAY LEAVE, ALSO ARE INDICIA OF THE EMPLOYER- EMPLOYEE RELATIONSHIP, AS IS ARTICLE 7, PROVIDING THAT THE AGREEMENT IS TERMINABLE AT THE WILL OF EITHER PARTY WITHOUT REGARD TO THE COMPLETION OF A SPECIFIED QUANTUM OF WORK. SEE 39 COMP. GEN. 681.

WE ARE AWARE OF YOUR AUTHORITY TO EMPLOY ALIENS BY CONTRACT CONTAINED IN SECTION 2 (C) OF PUB.L. 885, 84TH CONG., APPROVED AUGUST 1, 1956, 70 STAT. 890, 5 U.S.C. 170G (C). THE PURPOSE OF THAT LEGISLATION IS EXPLAINED IN H.REPT. NO. 2508, 84TH CONG., TO ACCOMPANY S. 2569, THE BILL THAT BECAME PUB.L. 885, AS FOLLOWS:

"THIS PROVISION IS REQUIRED BY THE DEPARTMENT TO CONTRACT FOR THE SERVICES OF ALIENS OVERSEAS. AT CERTAIN POSTS ABROAD IT IS MORE ADVANTAGEOUS AND LESS COSTLY TO THE GOVERNMENT TO CONTRACT FOR THE INTERMITTENT SERVICES OF ALIENS FOR CLEANING, REPAIR AND MAINTENANCE AND RELATED WORK THAN TO EMPLOY THEM CONTINUOUSLY AS EMPLOYEES OF THE FOREIGN SERVICE.'

WE NOTE, ALSO, THE PROVISION IN THE REGULATIONS ISSUED THEREUNDER, 3 FAM 912.7-3, THAT ,PERSONAL SERVICE CONTRACTS * * * SHOULD NOT BE USED FOR WORK OF A CONTINUING NATURE.'

THERE MAY BE ADMINISTRATIVE REASONS WHY THE INSTANT CONTRACT IS DEEMED MORE ADVANTAGEOUS AND LESS COSTLY TO THE GOVERNMENT THAN THE APPOINTMENT OF THE CLAIMANT TO A POSITION. HOWEVER THE RECORD BEFORE US, INCLUDING ARTICLE 3 OF THE CONTRACT, INDICATES THAT MR. ATTARD IS EMPLOYED FULL TIME. THEREFORE, IT WOULD APPEAR TO BE APPROPRIATE THAT THE INDIVIDUAL BE PLACED IN A REGULAR POSITION AND THE CONTRACT TERMINATED IN ACCORDANCE WITH ARTICLE 10 THEREOF. WE SHOULD, THEREFORE, APPRECIATE BEING INFORMED OF THE ACTION TAKEN IN THIS MATTER, INCLUDING THE LEGAL BASIS FOR THE CONTINUED PROCUREMENT OF MR. ATTARD'S SERVICES BY CONTRACT IF A DETERMINATION IS MADE TO CONTINUE HIS SERVICES ON THAT BASIS.

CONCERNING THE SUM CLAIMED FOR ANNUAL LEAVE UNDER THE CONTRACT, SECTIONS 3 AND 4 THEREOF SPECIFICALLY PROVIDE THAT THE GOVERNMENT "SHALL GRANT" THE LEAVE AND MAKE PAYMENTS FOR SUCH LEAVE IN ADVANCE TO THE EXTENT ACCRUED. THE LEAVE ACCRUED FOR THE PERIOD IN QUESTION WAS NOT GRANTED BECAUSE OF THE GOVERNMENT'S NEED FOR THE CONTRACTOR'S SERVICES. IN THE PARTICULAR CIRCUMSTANCES AND HAVING IN MIND THE INDICATION OF RECORD THAT A LIABILITY MAY EXIST THEREFOR UNDER SUDANESE LAW, NO OBJECTION IS INTERPOSED TO THE ADMINISTRATIVE PAYMENT OF THE ATTACHED VOUCHER, IF OTHERWISE CORRECT.