B-159780, OCT. 6, 1966

B-159780, OCT. 6, 1966

TO MR. ROBERT V. MARKEY:

WE REFER TO YOUR LETTER OF JUNE 29, 1966, AND ALSO TO YOUR LETTER OF JULY 23, 1966, WHICH WAS TRANSMITTED HERE UNDER DATE OF JULY 26, 1966, BY THE HONORABLE F. EDWARD HEBERT. YOUR LETTERS CONCERN THE EXTENT OF YOUR ENTITLEMENT TO COMPENSATION UNDER A PERSONAL SERVICE CONTRACT WITH THE CORPS OF ENGINEERS, CONTRACT NO. DA-16-047-CIVENG-66 401. INCIDENT TO OUR CONSIDERATION OF YOUR CLAIM IT WAS NECESSARY TO OBTAIN AN ADMINISTRATIVE REPORT FROM THE CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY, WHICH WAS RECEIVED HERE ON SEPTEMBER 29, 1966.

YOUR PRIMARY CONTENTION IS THAT YOUR DAILY RATE OF COMPENSATION ($75) PAYABLE UNDER THE CONTRACT SHOULD HAVE BEEN REDUCED ONLY BY 1/360TH OF YOUR ANNUAL ANNUITY RATE ($6,384) RATHER THAN BY 1/260TH OF SUCH ANNUAL RATE. IN THIS CONNECTION WE INVITE YOUR ATTENTION TO A DECISION OF OUR OFFICE DATED AUGUST 30, 1956, 36 COMP. GEN. 186, COPY ATTACHED, WHEREIN WE HELD, QUOTING FROM THE SYLLABUS:

"THE STANDARD EMPLOYMENT YEAR FOR CIVIL SERVICE ANNUITANTS WHO ARE REEMPLOYED AS CONSULTANTS OR EXPERTS ON A WHEN-ACTUALLY-EMPLOYED BASIS IS NOW ESTABLISHED AT 260 DAYS FOR COMPUTING THE ANNUAL COMPENSATION FROM WHICH THE ANNUITY IS DEDUCTED AND FOR CONVERTING THE REMAINDER TO A PER DIEM RATE. B-95277, JULY 5, 1950, UNPUBLISHED, OVERRULED.'

THE ADMINISTRATIVE ACTION IN WITHHOLDING 1/260TH OF YOUR ANNUITY FOR THE PERIOD ALLOCABLE TO YOUR EMPLOYMENT NOT ONLY IS IN ACCORDANCE WITH OUR DECISION IN 36 COMP. GEN. 186 BUT ALSO IS IN ACCORDANCE WITH THE APPLICABLE REGULATIONS OF THE CIVIL SERVICE COMMISSION. SEE FPM SUPPLEMENT 831-1, PAGE 54--- SUBCHAPTER S15-7.C. FOR CONVENIENCE WE QUOTE THAT REGULATION AS FOLLOWS:

"C. REDUCTION OF SALARY BY ALLOCABLE ANNUITY. THIS INVOLVES THE ACTUAL PERIOD DURING WHICH AN ANNUITANT HOLDS THE POSITION, INCLUDING ALL PERIODS OF LEAVE WITHOUT PAY AS WELL AS ALL REGULAR NONWORKDAYS FORMING A PART THEREOF. THE TOTAL ANNUITY PAYABLE TO A REEMPLOYED ANNUITANT MUST BE DEDUCTED FROM THE TOTAL SALARY FOR THE POSITION, THE REMAINDER REPRESENTING THE TOTAL SALARY AUTHORIZED TO BE PAID FOR A FULL YEAR OF EMPLOYMENT OR THE MAXIMUM RATE FOR ANY LESSER PERIOD. A DAILY OR HOURLY RATE OF PAY SHOULD BE CONVERTED TO ITS ANNUAL EQUIVALENT (260 DAYS OR 2,080 HOURS), THIS EQUIVALENT RATE REDUCED BY THE TOTAL ANNUITY, AND THE BALANCE RECONVERTED TO A DAILY OR HOURLY RATE.'

ACCORDINGLY, WE ARE OF THE OPINION THAT THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER WAS REQUIRED.

ALSO, UNDER THE QUOTED REGULATION OF THE CIVIL SERVICE COMMISSION, IT IS THE TOTAL ANNUITY WHICH IS ALLOCABLE TO THE TOTAL PERIOD OF EMPLOYMENT THAT IS REQUIRED TO BE DEDUCTED FROM YOUR SALARY. THE FACT THAT YOU MAY HAVE WORKED ON THE 31ST DAY OF THE MONTH AND THAT YOUR MONTHLY ANNUITY IS THE SAME REGARDLESS OF THE NUMBER OF DAYS IN ANY PARTICULAR MONTH IS IMMATERIAL. SEE ALSO IN THIS CONNECTION 28 COMP. GEN. 693, COPY ATTACHED.

WE DO NOT UNDERSTAND IN WHAT RESPECT ALL OF SECTION CPR P1.2-5 HAS NOT BEEN CONSIDERED TO BE GERMANE TO YOUR CONTRACT, AS YOU SAY IN YOUR LETTER. IF YOU CARE TO PRESENT MORE SPECIFIC INFORMATION IN THIS REGARD WE SHALL, UPON YOUR REQUEST, CONSIDER THE MATTER FURTHER.

THE GENERAL RULE IS THAT CONTRACTING OFFICERS MAY NOT MODIFY CONTRACTS INCREASING THE LIABILITY OF THE GOVERNMENT IN THE ABSENCE OF SOME CONSIDERATION MOVING TO THE GOVERNMENT. THE DIVISION ENGINEER APPLIED THIS RULE IN DETERMINING THAT THERE WAS NO AUTHORITY FOR INCREASING YOUR COMPENSATION UNDER YOUR EXISTING CONTRACT. WE CONCUR IN THE VIEW EXPRESSED BY THE DIVISION ENGINEER IN THIS REGARD, PARTICULARLY, SINCE ARTICLE 9 OF THE CONTRACT PREVENTS YOUR TERMINATING THE CONTRACT WITHOUT THE WRITTEN CONSENT OF THE CONTRACTING OFFICER.

ACCORDINGLY, UPON THE BASIS OF THE PRESENT RECORD AND FOR THE REASONS INDICATED ABOVE, WE ARE OF THE OPINION THAT THE ACTION TAKEN ADMINISTRATIVELY IN YOUR CASE WAS LEGALLY REQUIRED.