B-125559, NOV. 7, 1957

B-125559, NOV. 7, 1957

TO MR. JOHN BOYLE:

THIS REFERS TO YOUR LETTER OF SEPTEMBER 12, 1957, WITH ENCLOSURES, CONCERNING OUR PREVIOUS DECISIONS HOLDING THAT THE ANNUITY ALLOCABLE TO YOUR PERIOD OF EMPLOYMENT SHOULD BE DEDUCTED FROM YOUR COMPENSATION AS A REEMPLOYED ANNUITANT.

YOUR CONTENTION IN BRIEF NOW APPEARS TO BE THAT YOU ARE NOT A GOVERNMENT EMPLOYEE AND THAT YOUR EMPLOYMENT CANNOT BE GOVERNED BY THE PROVISIONS OF SECTION 2 (B) OF THE ACT OF FEBRUARY 28, 1948, 62 STAT. 49, AS SUPERSEDED BY SECTION 13 OF PUBLIC LAW 854, 84TH CONGRESS, 70 STAT. 764.

YOU HAVE BEEN EMPLOYED BY THE GENERAL SERVICES ADMINISTRATION UNDER CONTRACT SINCE JULY 15, 1954. YOUR LATEST CONTRACT OF RECORD IS DATED FEBRUARY 20, 1957, AND COVERED THE PERIOD JULY 1, 1956, TO JUNE 30, 1957. THE CONTRACT PROVIDED FEES FOR YOUR SERVICES COMPUTED AT THE RATE OF $50 PER DIEM FOR TIME ACTUALLY DEVOTED TO THE WORK, BUT IN NO EVENT SHOULD THE GOVERNMENT BE OBLIGATED FOR FEES IN EXCESS OF $5,000 DURING THE TERM OF THE CONTRACT.

AS YOU HAVE BEEN ADVISED ON PREVIOUS OCCASIONS BY OUR OFFICE, THE ACCOUNTING OFFICERS OF THE GOVERNMENT CONSISTENTLY HAVE RULED THAT WHERE THE COMPENSATION OF AN INDIVIDUAL FOR SERVICES RENDERED BY HIM IS BASED UPON THE TIME ACTUALLY WORKED, RATHER THAN UPON THE ACCOMPLISHMENT OF A PARTICULAR RESULT, THE SERVICES OF THE INDIVIDUAL MUST BE REGARDED AS PERSONAL RATHER THAN CONTRACTUAL IN NATURE. SEE 27 COMP. GEN. 695, 698; ALSO, DISCUSSION IN 26 COMP. GEN. 468. SINCE THE COMPENSATION PROVIDED BY THE CONTRACTS IS BASED UPON THE TIME YOU ACTUALLY WORKED WE MUST CONCLUDE THAT YOU ARE AN EMPLOYEE OF THE GOVERNMENT, AND THAT YOUR COMPENSATION IS SUBJECT TO THE PROVISION 2 (B) OF THE ACT OF FEBRUARY 28, 1948, OR SECTION 13 OF THE 1956 ACT, SUPRA. THE FACT THAT THERE MAY HAVE BEEN AN ADMINISTRATIVE FAILURE TO DETERMINE YOUR SPECIAL QUALIFICATION IN REGARD TO YOUR NEW DUTIES WOULD NOT BE CONTROLLING.