Compensation for Services Prior to Appointment

B-196940: Dec 29, 1980

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The Controller of the Department of Energy (DOE) requested an advance decision on whether a consultant was entitled to compensation for consulting services performed prior to his appointment. The consultant's previous appointment with the Energy Research and Development Administration (ERDA) expired. When ERDA became part of DOE, the consultant, relying on past experiences with ERDA and at the request of a DOE official, continued to provide services to DOE. The DOE Division of Personnel notified both the consultant and the employing division that DOE could not retroactively appoint consultants and, therefore, the consultant should not be working. The consultant continued working expecting compensation through the date to which a commitment had been made to him prior to the date he was informed that he should not be working. DOE acknowledged that the consultant's services for the entire period were performed at the request of officials in spite of the communications from the Division of Personnel. Because the services were performed in good faith, DOE recommended payment for all services since the law forbids accepting voluntary services of this nature. As the consultant was providing consulting services relying on past retroactive contracting practices of ERDA and at the request of a DOE official, it was reasonable and in good faith for him to do so. Thus, GAO held that, until he received notice that DOE could not retroactively appoint consultants, he was a de facto employee and could be paid for services rendered during this period. There was no evidence of an attempt to appoint the consultant prior to the date of his DOE appointment. Thus, from the date of the personnel office notification until his appointment, he was not eligible for compensation for his services.