B-203934, DEC 22, 1981

B-203934: Dec 22, 1981

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IS ENTITLED TO BE REIMBURSED FOR THE TIME HE WAS UNABLE TO PERFORM SINCE. THE UNITED STATES GOVERNMENT IS ESTOPPED FROM DENYING THE CONTRACTOR'S ENTITLEMENT TO REIMBURSEMENT FOR THE TIME PERIOD IN QUESTION. MALINA WAS SENT TO FRANCE FOR MEDICAL TREATMENT. WHILE HE WAS AWAY. THESE CHARGES WERE DROPPED AND MR. MALINA WAS ALLOWED TO RETURN TO HIS WORK. MALINA WAS MEDICALLY FIT FOR WORK. WAS BARRED FROM RETURNING TO HIS PLACE OF EMPLOYMENT. MALINA WOULD HAVE RECEIVED $5. MALINA IS ENTITLED TO BE COMPENSATED FOR THE TIME PERIOD IN QUESTION. MALINA WAS PREVENTED FROM PERFORMING HIS CONTRACT THROUGH NO FAULT OF HIS OWN. MALINA TO RETURN TO GUINEA BISSAU 2 MONTHS BEFORE PERMISSION WAS FINALLY GIVEN IN WRITING.

B-203934, DEC 22, 1981

DIGEST: CONTRACTOR, TEMPORARILY BARRED FROM ENTERING A FOREIGN COUNTRY WHERE HE HAD BEEN PERFORMING A PERSONAL SERVICES CONTRACT FOR THE UNITED STATES GOVERNMENT, IS ENTITLED TO BE REIMBURSED FOR THE TIME HE WAS UNABLE TO PERFORM SINCE, IN VIEW OF THE ASSURANCES HE RECEIVED WHICH HE RELIED ON TO HIS DETRIMENT, THE UNITED STATES GOVERNMENT IS ESTOPPED FROM DENYING THE CONTRACTOR'S ENTITLEMENT TO REIMBURSEMENT FOR THE TIME PERIOD IN QUESTION.

ALAN MALINA:

A CERTIFYING OFFICER FOR THE UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT (AID), DAKAR, SENEGAL, REQUESTS A DECISION PURSUANT TO 31 U.S.C. SEC. 82D. (1976) REGARDING THE PAYMENT OF $5,004.99 TO MR. ALAN MALINA UNDER CONTRACT NO. AID/AFR-C-1467.

MR. MALINA ENTERED INTO THIS 2-YEAR PERSONAL SERVICES CONTRACT ON SEPTEMBER 11, 1979. UNDER THE TERMS OF THE CONTRACT, MR. MALINA PROVIDES CONSTRUCTION SUPERVISION AND PLANNING FOR EARTHEN SALT INTRUSION DAMS IN THE SOUTHERN PART OF THE AFRICAN NATION OF GUINEA BISSAU. ON MAY 14, 1980, MR. MALINA WAS SENT TO FRANCE FOR MEDICAL TREATMENT. WHILE HE WAS AWAY, THE GOVERNMENT OF GUINEA-BISSAU INFORMED THE UNITED STATES GOVERNMENT THAT MR. MALINA WOULD NOT BE ALLOWED BACK INTO GUINEA-BISSAU BECAUSE OF CERTAIN CHARGES OF WRONGDOING THAT HAD BEEN BROUGHT AGAINST HIM. EVENTUALLY, THESE CHARGES WERE DROPPED AND MR. MALINA WAS ALLOWED TO RETURN TO HIS WORK. HOWEVER, FOR A PERIOD OF 82 DAYS (NOVEMBER 1, 1980, THROUGH JANUARY 21, 1981), MR. MALINA WAS MEDICALLY FIT FOR WORK, BUT WAS BARRED FROM RETURNING TO HIS PLACE OF EMPLOYMENT. UNDER HIS CONTRACT, MR. MALINA WOULD HAVE RECEIVED $5,004.97 IN COMPENSATION FOR THIS PERIOD IF HE HAD BEEN PERMITTED TO WORK. MR. MALINA HAS REQUESTED PAYMENT OF $5,004.97 FROM AID.

THE AID CONTRACTING OFFICER DETERMINED THAT MR. MALINA COULD BE PAID $4,003.98 IN BASE COMPENSATION BUT NOT $1,000.99 IN POST DIFFERNETIAL. HOWEVER, THE CERTIFYING OFFICER QUESTIONS THE VALIDITY OF PAYMENT FOR THE PERIOD IN QUESTION AND REQUESTS OUR OPINION.

WE CONCLUDE THAT MR. MALINA IS ENTITLED TO BE COMPENSATED FOR THE TIME PERIOD IN QUESTION.

MR. MALINA WAS PREVENTED FROM PERFORMING HIS CONTRACT THROUGH NO FAULT OF HIS OWN. WHEN THE UNITED STATES EMBASSY IN GUINEA-BISSAU INFORMED MR. MALINA THAT HE SHOULD NOT TRY TO RETURN TO THE COUNTRY UNTIL THE GOVERNMENT OF GUINEA-BISSAU GRANTED WRITTEN PERMISSION TO DO SO, IT ALSO ASSURED HIM THAT THE MATTER WOULD BE CLEARED UP AND THAT EVENTUALLY HE WOULD BE ALLOWED TO COMPLETE THE CONTRACT. THE EMBASSY HAD IN FACT RECEIVED ORAL PERMISSION FOR MR. MALINA TO RETURN TO GUINEA BISSAU 2 MONTHS BEFORE PERMISSION WAS FINALLY GIVEN IN WRITING. HOWEVER, THE EMBASSY BELIEVED IT PRUDENT FOR MR. MALINA TO REMAIN OUT OF THE COUNTRY UNTIL THE GUINEA-BISSAU GOVERNMENT SUBMITTED A LETTER TO THE EMBASSY WHICH SPECIFICALLY DROPPED ALL CHARGES OF WRONGDOING AND INVITED MR. MALINA TO RETURN. ACCORDING TO THE CERTIFYING OFFICER, IT TOOK 2 YEARS TO FIND SOMEONE WHO COULD DO THE REQUIRED ENGINEERING WORK IN GUINEA-BISSAU, AND THE EMBASSY, THEREFORE, HAD NO INTENTION OF LOSING MR. MALINA'S SERVICES. THE CERTIFYING OFFICER FURTHER STATES THAT "ALL PARTIES ASSUMED THAT HE WOULD BE PAID UNDER THE EXISTING CONTRACT."

IN VIEW OF THE DELAY CAUSED BY THE GOVERNMENT OF GUINEA-BISSAU, MR. MALINA COULD HAVE TREATED THE CONTRACT AS RESCINDED AND PROCEEDED TO LOOK FOR ANOTHER POSITION. HOWEVER, HE DID NOT DO SO, BUT RATHER, RELYING TO HIS DETRIMENT ON THE EMBASSY'S PROMISE OF EVENTUAL REINSTATEMENT, HE WAITED IN PARIS FOR 2 MONTHS WITHOUT ANY SOURCE OF INCOME. UNDER THE CIRCUMSTANCES, THE UNITED STATES GOVERNMENT IS ESTOPPED FROM DENYING ITS OBLIGATION TO REIMBURSE MR. MALINA FOR THE 82 DAYS IN QUESTION. SEE GENERALLY, WILLISTON ON CONTRACTS, SEC. 140 (3RD ED. 1957).

WE FIND, THEREFORE, THAT MR. MALINA IS ENTITLED TO BE REIMBURSED FOR THE AMOUNT DETERMINED DUE BY THE CONTRACTING OFFICER, $4,003.98, IF OTHERWISE CORRECT. WE DO NOT FIND THAT MR. MALINA IS ENTITLED TO ANY POST DIFFERENTIAL FOR THE PERIOD IN QUESTION BECAUSE HE WAS NOT IN FACT SERVING IN THE OVERSEAS AREA FOR WHICH THE DIFFERENTIAL WAS GRANTED. MOREOVER, THE UNITED STATES GOVERNMENT CANNOT BE HELD RESPONSIBLE FOR MR. MALINA'S INABILITY TO QUALIFY FOR THIS ALLOWANCE SINCE THIS WAS DUE SOLELY TO THE INACTION OF THE GOVERNMENT OF GUINEA-BISSAU.