B-94744, MAY 11, 1950, 29 COMP. GEN. 455

B-94744: May 11, 1950

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

1950: REFERENCE IS MADE TO THE ASSISTANT SECRETARY'S LETTER OF APRIL 14. IT IS RELATED IN THE SAID LETTER THAT THERE ARE CITIZENS OF THE UNITED STATES PRESENTLY SERVING OVERSEAS ON THE PAYROLL OF A GOVERNMENT CONTRACTOR PERFORMING CONSTRUCTION AND OTHER WORK FOR THE NAVY DEPARTMENT UNDER COST-PLUS-FIXED-FEE CONTRACTS. THE CONTRACTOR'S EMPLOYEES ARE REQUIRED TO RENDER A MINIMUM OF 12 MONTHS' SERVICE AS A CONDITION PRECEDENT TO BEING FURNISHED RETURN TRANSPORTATION TO THE UNITED STATES AT THE EXPENSE OF THE CONTRACTOR. IT IS POINTED OUT THAT UNDER THE TERMS OF THE COST-PLUS-FIXED-FEE CONTRACT. THE CONTRACTOR IS REIMBURSED BY THE DEPARTMENT FOR THE TRANSPORTATION COSTS OF HIS EMPLOYEES. IT IS STATED FURTHER THAT THE DEPARTMENT IS DESIROUS OF APPOINTING CERTAIN OF THE CONTRACTOR'S EMPLOYEES TO CIVIL-SERVICE POSITIONS OVERSEAS BUT THAT SUCH EMPLOYEES ARE RELUCTANT TO TRANSFER TO THE FEDERAL SERVICE AS "NEW APPOINTEES" UNDER THE ABOVE CITED STATUTE IF.

B-94744, MAY 11, 1950, 29 COMP. GEN. 455

TRAVELING EXPENSES - EMPLOYEES OF GOVERNMENT CONTRACTORS APPOINTED TO CIVIL-SERVICE POSITIONS WHILE OVERSEAS - RETURN TO U.S. CITIZENS OF THE UNITED STATES WHO, WHILE SERVING OVERSEAS ON THE PAYROLL OF A GOVERNMENT CONTRACTOR, ACCEPT APPOINTMENTS TO CIVIL SERVICE POSITIONS FOR PERIODS OF LESS THAN 12 MONTHS UNDER AGREEMENTS AS TO THE SPECIFIC PERIODS OF SERVICE REQUIRED AS A CONDITION PRECEDENT TO BEING RETURNED TO THE UNITED STATES AT GOVERNMENT EXPENSE, MAY, UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, BE FURNISHED RETURN TRANSPORTATION TO THE UNITED STATES AT GOVERNMENT EXPENSE UPON THE EXPIRATION OF THE AGREED PERIODS OF SERVICE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, MAY 11, 1950:

REFERENCE IS MADE TO THE ASSISTANT SECRETARY'S LETTER OF APRIL 14, 1950, REQUESTING DECISION AS TO THE PROPRIETY OF FURNISHING RETURN TRANSPORTATION TO THE UNITED STATES UNDER SECTION 7, PUBLIC LAW 600, APPROVED AUGUST 2, 1946, 60 STAT. 806, 808, TO EMPLOYEES APPOINTED AT OVERSEAS STATIONS UNDER THE CIRCUMSTANCES HEREINAFTER STATED.

IT IS RELATED IN THE SAID LETTER THAT THERE ARE CITIZENS OF THE UNITED STATES PRESENTLY SERVING OVERSEAS ON THE PAYROLL OF A GOVERNMENT CONTRACTOR PERFORMING CONSTRUCTION AND OTHER WORK FOR THE NAVY DEPARTMENT UNDER COST-PLUS-FIXED-FEE CONTRACTS. UNDER THE TERMS OF THEIR EMPLOYMENT AGREEMENTS, THE CONTRACTOR'S EMPLOYEES ARE REQUIRED TO RENDER A MINIMUM OF 12 MONTHS' SERVICE AS A CONDITION PRECEDENT TO BEING FURNISHED RETURN TRANSPORTATION TO THE UNITED STATES AT THE EXPENSE OF THE CONTRACTOR. ALSO, IT IS POINTED OUT THAT UNDER THE TERMS OF THE COST-PLUS-FIXED-FEE CONTRACT, THE CONTRACTOR IS REIMBURSED BY THE DEPARTMENT FOR THE TRANSPORTATION COSTS OF HIS EMPLOYEES. IT IS STATED FURTHER THAT THE DEPARTMENT IS DESIROUS OF APPOINTING CERTAIN OF THE CONTRACTOR'S EMPLOYEES TO CIVIL-SERVICE POSITIONS OVERSEAS BUT THAT SUCH EMPLOYEES ARE RELUCTANT TO TRANSFER TO THE FEDERAL SERVICE AS "NEW APPOINTEES" UNDER THE ABOVE CITED STATUTE IF, IN SO DOING, THEY WOULD OBLIGATE THEMSELVES TO SERVE AN ADDITIONAL 12 MONTHS BEFORE BECOMING ENTITLED TO RETURN TRANSPORTATION TO THE UNITED STATES AT THE EXPENSE OF THE GOVERNMENT. IT APPEARS THAT THE EMPLOYEES INVOLVED HAVE SERVED VARYING PERIODS OF TIME UNDER THEIR EMPLOYMENT AGREEMENTS WITH THE CONTRACTOR--- SOME MORE AND SOME LESS THAN 12 MONTHS--- AND IT IS EMPHASIZED THAT, IF CREDIT FOR PERIODS OF SERVICE WITH THE CONTRACTOR COULD BE GIVEN BY THE DEPARTMENT TO THE CONTEMPLATED NEW APPOINTEES TOWARD THE 12-MONTH PROVISION OF SECTION 7, PUBLIC LAW 600, SUPRA, NO ADDITIONAL EXPENSE FOR TRANSPORTATION COSTS OF SUCH TRANSFERRED EMPLOYEES WOULD BE INCURRED BY THE GOVERNMENT.

IN A DECISION OF THIS OFFICE TO THE GOVERNOR OF THE PANAMA CANAL, B 62267, 26 COMP. GEN. 488, 495, IT WAS HELD WITH RESPECT TO SECTION 7, PUBLIC LAW 600, AS FOLLOWS:

"* * * THE REQUIREMENT OF AN AGREEMENT BY A NEW APPOINTEE TO REMAIN IN THE GOVERNMENT SERVICE FOR 12 MONTHS FOLLOWING HIS APPOINTMENT UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL IS SOLELY IN THE INTERESTS OF THE UNITED STATES. THE SENTENCE CLEARLY CONTEMPLATES THE POSSIBILITY OF AN ADMINISTRATIVE DETERMINATION THAT, IN THE INTERESTS OF THE UNITED STATES, THE SERVICES OF AN APPOINTEE FOR A FULL PERIOD OF 12 MONTHS FOLLOWING HIS APPOINTMENT WOULD NOT BE REQUIRED. HENCE, IT SHOULD BE IMMATERIAL WHETHER SUCH DETERMINATION IS MADE SUBSEQUENT OR PRIOR TO THE APPOINTMENT, AND THE SENTENCE SHOULD NOT BE SO CONSTRUED AS TO REQUIRE THE EXECUTION OF AN AGREEMENT BY A NEW APPOINTEE TO REMAIN IN THE GOVERNMENT SERVICE FOR THE 12 MONTHS FOLLOWING HIS APPOINTMENT WHERE IT DEFINITELY IS KNOWN PRIOR TO THE APPOINTMENT THAT THE SERVICES OF THE APPOINTEE WILL NOT BE REQUIRED FOR THE 12-MONTH PERIOD. UNDER SUCH CIRCUMSTANCES AN APPOINTEE PROPERLY MAY AGREE IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE EITHER FOR THE 12 MONTHS FOLLOWING HIS APPOINTMENT OR FOR SUCH LESSER PERIOD OF TIME AS IT DEFINITELY HAS BEEN DETERMINED THAT HIS SERVICES WILL BE REQUIRED. THEREFORE, IT MAY BE STATED THAT WHERE A NEW APPOINTEE EXECUTES AN AGREEMENT TO REMAIN IN THE GOVERNMENT SERVICE FOR A DEFINITE PERIOD OF LESS THAN 12 MONTHS OR FOR THE PERIOD REQUIRED TO PERFORM A PARTICULAR JOB OR TASK AND SUCH AGREEMENT IS SUPPORTED BY AN ADMINISTRATIVE STATEMENT THAT IT WAS DETERMINED PRIOR TO THE APPOINTMENT THAT THE INTERESTS OF THE GOVERNMENT DO NOT REQUIRE THE SERVICES OF THE APPOINTEE FOR ANY LONGER PERIOD THAN STATED IN THE AGREEMENT, THIS OFFICE WILL NOT OBJECT TO OTHERWISE PROPER PAYMENTS OF EXPENSES INCURRED IN ACCORDANCE WITH AUTHORITY CONTAINED IN SECTION 7 OF PUBLIC LAW 600.'

ALSO, SEE 26 COMP. GEN. 831.

ACCORDINGLY, IF, IN THE EXERCISE OF ADMINISTRATIVE DISCRETION, IT IS PREDETERMINED THAT THE SERVICES OF ANY SUCH EMPLOYEES ARE REQUIRED FOR PERIODS OF LESS THAN 12 MONTHS, AGREEMENTS AS TO THE SPECIFIC PERIODS THE EMPLOYEES WILL BE REQUIRED TO SERVE MAY BE ENTERED INTO, AND THIS OFFICE WILL INTERPOSE NO OBJECTION TO THE PAYMENT BY THE GOVERNMENT OF THE COSTS OF THEIR RETURN TRANSPORTATION TO THE UNITED STATES UPON THE EXPIRATION OF THE AGREED PERIODS OF SERVICE.