B-173179(1), AUG 25, 1971

B-173179(1): Aug 25, 1971

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THERE IS NO BASIS TO SUPPORT THE COLLECTION FROM HIM OF AN AMOUNT PURPORTEDLY REPRESENTING A DUPLICATE PAYMENT OF TRAVELING EXPENSES BY THE GOVERNMENT. SHYTLE: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 9. LAWTON WAS A PART-TIME EMPLOYEE WITH A REGULAR TOUR OF DUTY AT THE VETERANS ADMINISTRATION (VA) HOSPITAL AT IOWA CITY. THIS FEE INCLUDED TRAVEL AND ALL OTHER EXPENSES BUT CONTAINED NO BREAKDOWN TO SHOW WHAT PORTION OF THE FEE WAS FOR TRAVEL AND RELATED EXPENSES. IT IS NOTED THAT THE EMPLOYEE WAS ON ANNUAL LEAVE ON OCTOBER 7. THE LECTURES WERE SCHEDULED DURING NONDUTY HOURS. CONTRACTS BETWEEN THE GOVERNMENT AND ITS EMPLOYEES ARE NOT PROHIBITED BY STATUTE EXCEPT WHEN AN EMPLOYEE OF THE GOVERNMENT ACTS AS AN AGENT BOTH FOR THE GOVERNMENT AND THE CONTRACTOR IN THE TRANSACTION OF BUSINESS.

B-173179(1), AUG 25, 1971

CIVILIAN EMPLOYEE - TRANSPORTATION EXPENSES DECISION CANCELLING THE INDEBTEDNESS OF DR. RICHARD L. LAWTON IN THE AMOUNT OF $235 REPRESENTING OVER-PAYMENT OF TRANSPORTATION EXPENSES. SINCE DR. LAWTON'S CONTRACT DID NOT SPECIFY ANY SPECIFIC AMOUNT ALLOTTED FOR TRAVEL, THERE IS NO BASIS TO SUPPORT THE COLLECTION FROM HIM OF AN AMOUNT PURPORTEDLY REPRESENTING A DUPLICATE PAYMENT OF TRAVELING EXPENSES BY THE GOVERNMENT.

TO MR. JOHN D. SHYTLE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 9, 1970, FORWARDING FOR ADJUDICATION THE INDEBTEDNESS TO THE UNITED STATES OF DR. RICHARD L. LAWTON, IOWA CITY, IOWA, IN THE AMOUNT OF $235 REPRESENTING OVERPAYMENT OF TRANSPORTATION EXPENSES.

THE INFORMATION OF RECORD SHOWS THAT DR. LAWTON WAS A PART-TIME EMPLOYEE WITH A REGULAR TOUR OF DUTY AT THE VETERANS ADMINISTRATION (VA) HOSPITAL AT IOWA CITY, IOWA, MONDAY THROUGH FRIDAY, 8 A.M. TO 1:30 P.M. ON SEPTEMBER 5, 1969, DR. LAWTON ENTERED INTO A CONTRACT WITH THE VA HOSPITAL AT TUCSON, ARIZONA, TO DELIVER THREE LECTURES AT VA HOSPITALS IN ARIZONA ON OCTOBER 7, 8, AND 9, 1969, FOR A FEE OF $540. THIS FEE INCLUDED TRAVEL AND ALL OTHER EXPENSES BUT CONTAINED NO BREAKDOWN TO SHOW WHAT PORTION OF THE FEE WAS FOR TRAVEL AND RELATED EXPENSES. IT IS NOTED THAT THE EMPLOYEE WAS ON ANNUAL LEAVE ON OCTOBER 7, 8, AND 9, 1969, AND THE LECTURES WERE SCHEDULED DURING NONDUTY HOURS.

CONTRACTS BETWEEN THE GOVERNMENT AND ITS EMPLOYEES ARE NOT PROHIBITED BY STATUTE EXCEPT WHEN AN EMPLOYEE OF THE GOVERNMENT ACTS AS AN AGENT BOTH FOR THE GOVERNMENT AND THE CONTRACTOR IN THE TRANSACTION OF BUSINESS, OR WHERE THE SERVICE TO BE RENDERED UNDER A CONTRACT WITH AN EMPLOYEE IS SUCH AS COULD HAVE BEEN REQUIRED OF HIM IN HIS OFFICIAL CAPACITY. SEE B- 159472, DATED AUGUST 10, 1966. HOWEVER, FEDERAL PROCUREMENT REGULATIONS 1 -1.302-3(A) PROVIDES INSOFAR AS PERTINENT THAT CONTRACTS SHALL NOT KNOWINGLY BE ENTERED INTO BETWEEN THE GOVERNMENT AND EMPLOYEES THEREOF, EXCEPT FOR THE MOST COMPELLING REASONS, SUCH AS CASES WHERE THE NEEDS OF THE GOVERNMENT CANNOT REASONABLY BE OTHERWISE SUPPLIED. THE RECORD INDICATES THAT AT THE TIME ARRANGEMENTS WERE MADE FOR THE LECTURES THE VA HOSPITAL AT TUCSON WAS NOT AWARE OF THE FACT THAT DR. LAWTON WAS A PART- TIME VA PHYSICIAN ON THE ROLLS OF THE VA HOSPITAL AT IOWA CITY.

DR. LAWTON WAS AUTHORIZED TO PROCEED ON OR ABOUT OCTOBER 4, 1969, TO SAN FRANCISCO, CALIFORNIA, FOR TEMPORARY DUTY. AFTER COMPLETING HIS TEMPORARY DUTY ON OCTOBER 7, 1969, AT SAN FRANCISCO HE TRAVELED TO ARIZONA FOR THE PURPOSE OF GIVING THE LECTURES AND THEN RETURNED TO IOWA CITY AT NO ADDITIONAL COST TO THE GOVERNMENT.

SINCE DR. LAWTON'S CONTRACT DID NOT SPECIFY ANY SPECIFIC AMOUNT ALLOTTED FOR TRAVEL, WE DO NOT BELIEVE THERE IS A SUFFICIENT BASIS TO SUPPORT THE COLLECTION FROM HIM OF AN AMOUNT PURPORTEDLY REPRESENTING A DUPLICATE PAYMENT OF TRAVELING EXPENSES BY THE GOVERNMENT.

THEREFORE, THE INDEBTEDNESS OF $235 AGAINST DR. LAWTON SHOULD BE CANCELED. THIS NULLIFIES THE ACTION PROPOSED IN LETTER OF JANUARY 11, 1971, DW-Z1-684-618-PJM-3, TO YOU, FROM OUR CLAIMS DIVISION.