B-149464, AUG. 10, 1962

B-149464, AUG. 10, 1962

TO ADMINISTRATOR, AGENCY FOR INTERNATIONAL DEVELOPMENT:

REFERENCE IS MADE TO LETTER DATED JULY 13, 1962, FROM MURRAY GRAY, CONTRACTING OFFICER, BUREAU FOR AFRICA AND EUROPE, AID, WHICH REQUESTS OUR DECISION REGARDING THE AUTHORITY OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT TO MAKE PAYMENT ON THE BASIS OF CERTAIN VOUCHERS (PHOTOSTATS OF WHICH HAVE BEEN FURNISHED AS ATTACHMENTS 1 AND 2 TO MR. GRAY'S LETTER) SUBMITTED TO THE CONTROLLER'S OFFICE OF THE INTERNATIONAL COOPERATION ADMINISTRATION (PREDECESSOR AGENCY TO AID) BY ORVIS J. FAIRBANKS. THE FACTS RELATING TO THE MATTER ARE SET FORTH IN THE CONTRACTING OFFICER'S LETTER AS FOLLOWS:

"1. THE AGREEMENT BETWEEN THE COOPERATING COUNTRY AND THE CONTRACTOR

ON DECEMBER 31, 1957, ORVIS JASON FAIRBANKS AND THE TECHNICAL ASSISTANCE ADMINISTRATION (HEREAFTER REFERRED TO AS "ADMINISTRATION"), AN AGENCY OF THE FEDERAL PEOPLES' REPUBLIC OF YUGOSLAVIA, EXECUTED MEMORANDUM AGREEMENT NO. ICA-T-263 FOR THE PERFORMANCE BY MR. FAIRBANKS OF CERTAIN SERVICES AS A SPECIALIST TO ASSIST THE ADMINISTRATION IN ITS PROGRAM FOR THE PRODUCTION OF STANDARD AND SPECIAL MACHINE TOOLS AND DIES. (ATTACHMENT 3) THE AGREEMENT WAS FOR EIGHT MONTHS (ARTICLE V-B), TO PERFORM SERVICES IN YUGOSLAVIA FOR A PERIOD OF APPROXIMATELY SIX MONTHS (ARTICLE II-B-1), WITH A MAXIMUM U.S. DOLLAR PAYMENT OF $7,500 (ARTICLE III-8). MR. FAIRBANKS WAS TO BE PAID A SALARY OF $1,000 A MONTH, U.S. DOLLARS, BY THE ADMINISTRATION (ARTICLE III-1), AND THE METHOD OF PAYMENT (ARTICLE III-7) WAS TO BE AS FOLLOWS:

"THE ADMINISTRATION, BY SIGNATURE OF THIS AGREEMENT IS DEEMED TO HAVE REQUESTED ICA TO ISSUE A LETTER OF COMMITMENT TO THE CONTRACTOR PURSUANT TO WHICH THE CONTRACTOR WILL BE REIMBURSEMENT (REIMBURSED) FOR DOLLAR COSTS INCURRED IN ACCORDANCE WITH ARTICLE III.'

"PAYMENT FOR RETURN TRANSPORTATION AND CONSULTATION IN WASHINGTON, D.C., AT THE END OF THE CONTRACTOR'S PERIOD OF SERVICE WAS PROVIDED FOR IN ARTICLE III-1 AND III-2.

"THE MEMORANDUM OF AGREEMENT WAS AMENDED ON JUNE 26, 1958, (ATTACHMENT 4) DECEMBER 21, 1958 (ATTACHMENT 5) AND DECEMBER 20, 1959. (ATTACHMENT 6) THE AMENDMENT OF DECEMBER 20, 1959, AMENDMENT NO. 3, PROVIDED (PARAGRAPH 6) FOR THE EXTENSION OF THE AGREEMENT TO A PERIOD OF 36 MONTHS. THE OBLIGATIONS OF THE PARTIES UNDER THE AGREEMENT WERE THEREFORE EXTENDED TO DECEMBER 31, 1960. (THE DOLLAR CEILING PROVIDED FOR IN ARTICLE III-8 OF THE AGREEMENT WAS ALSO INCREASED PROGRESSIVELY BY THESE AMENDMENTS TO $44,650, AND THE MONTHLY SALARY PAYABLE TO ORVIS J. FAIRBANKS UNDER ARTICLE III-1 THEREOF WAS INCREASED BY AMENDMENTS NOS. 2 AND 3, RESPECTIVELY, TO $1,050 AND $1,100.)

"2. THE PROJECT AGREEMENT BETWEEN ICA AND THE TECHNICAL ASSISTANCE ADMINISTRATION, AN AGENT OF THE GOVERNMENT OF YUGOSLAVIA

PURSUANT TO A PROJECT AGREEMENT BETWEEN ICA AND THE ADMINISTRATION, PROJECT NO. FY 1958, DATED MAY 8, 1958, ICA OBLIGATED FUNDS TO PROVIDE FOR,"A U.S. TOOL AND DIE TECHNICIAN TO BE CONTRACTED FOR SIX MONTHS SERVICES TO PROVIDE TRAINING FOR YUGOSLAV TECHNICIANS.' (ATTACHMENT 7) THE PROJECT AGREEMENT WAS AMENDED WITH THE FINAL CONTRIBUTION DATE EXTENDED TO DECEMBER 31, 1961. (DECEMBER 31, 1960) (ATTACHMENT 8)

"3. THE PROJECT IMPLEMENTATION ORDER

ON JUNE 30, 1956, A PROJECT IMPLEMENTATION ORDER, TECHNICIANS AND CONTRACTS SERVICE, PIO/T NO. 158-23-068-2-60091 WAS ISSUED BY ICA TO SECURE THE SERVICES OF A TECHNICIAN FOR THE GOVERNMENT OF YUGOSLAVIA. (ATTACHMENT 9) SUBSEQUENT PIO/T'S WERE ISSUED, WITH PIO/T 158-23-112 3- 00061 EXTENDING THE DURATION OF THE TECHNICIAN SERVICES FOR TWELVE MONTHS. (ATTACHMENT 10) THE AUTHORIZATION FOR SERVICES WAS THEREFORE TO DECEMBER 31, 1960.

"4. NOTICE OF APPROVAL FOR FINANCING

THE LAST NOTICE OF APPROVAL FOR FINANCING OF COOPERATING COUNTRY CONTRACT ISSUED BY ICA, CONTROL NO. 00216, ISSUED JANUARY 15, 1960, INDICATED THAT THE CONTRACT EXPIRATION DATE WAS DECEMBER 31, 1960. (ATTACHMENT 11)

"5. ICA'S LETTER OF COMMITMENT TO THE CONTRACTOR

ON JANUARY 23, 1958 ICA ISSUED A LETTER OF COMMITMENT TO MR. FAIRBANKS ". . . TO MAKE PAYMENTS NOT IN EXCESS OF $7,500.00 ON THE AMOUNT OF DOLLAR REIMBURSABLE COSTS AND CHARGES TO WHICH YOU (MR. FAIRBANKS) MAY BECOME ENTITLED IN ACCORDANCE WITH THE ABOVE DESCRIBED AGREEMENT(MEMORANDUM OF AGREEMENT EXECUTED DECEMBER 31, 1957, BETWEEN THE FEDERAL PEOPLES' REPUBLIC OF YUGOSLAVIA AND ORVIS JASON FAIRBANKS).' (ATTACHMENT 12) THE THIRD AMENDMENT TO THE LETTER OF COMMITMENT, ISSUED FEBRUARY 4, 1960 EXTENDED THE EXPIRATION DATE IN THE FOLLOWING MANNER:

". . . THIS LETTER OF COMMITMENT SHALL EXPIRE JANUARY 31, 1961 FOR SERVICES PERFORMED ON OR BEFORE DECEMBER 31, 1960 UNLESS SUCH EXPIRATION DATE HAS BEEN PREVIOUSLY EXTENDED BY ICA IN WRITING.' (ATTACHMENT 13)

"6. PERFORMANCE BEYOND THE EXPIRATION DATE

THE FOREGOING MATERIAL INDICATES THAT THE AGREEMENT BETWEEN MR. FAIRBANKS' AND THE GOVERNMENT OF YUGOSLAVIA, THE DOCUMENTS SUPPORTING THAT AGREEMENT AND THE ICA OBLIGATION OF FUNDS EXTENDED TO DECEMBER 31, 1960. THIS EXPIRATION DATE, HOWEVER, WAS APPARENTLY INADVERTENTLY OVERLOOKED BY THE GOVERNMENT OF YUGOSLAVIA, THE ICA MISSION IN YUGOSLAVIA, AND THE CONTRACTOR. MR. FAIRBANKS CONTINUED TO PERFORM SERVICES FOR THE GOVERNMENT OF YUGOSLAVIA THROUGH THE MONTH OF JANUARY 1961. HE SUBMITTED A PAY VOUCHER FOR THE WORK HE PERFORMED DURING JANUARY 1961, WHICH WAS PAID BY THE ICA CONTROLLER'S OFFICE. SUBSEQUENTLY, HE SUBMITTED A CLAIM FOR TRAVEL AND PER DIEM WHICH HAS REMAINED UNPAID.

"7. DISCOVERY OF THE ERROR

ON MARCH 31, 1961 ICA'S WASHINGTON OFFICE ADVISED THE ICA MISSION IN YUGOSLAVIA THAT THE TERMINAL DATE OF FAIRBANKS' AGREEMENT AND ALL THE SUPPORTING DOCUMENTS WAS DECEMBER 31, 1961. (ATTACHMENT 14) THE MISSION IN YUGOSLAVIA RESPONDED BY PROPOSING THAT THE AGREEMENTS FOR MR. FAIRBANKS' SERVICES BE RETROACTIVELY DATED. THE ICA OFFICE OF THE GENERAL COUNSEL INFORMALLY ADVISED THAT SUCH RETROACTIVE AGREEMENTS WOULD NOT BE LEGALLY SUFFICIENT TO BIND THE UNITED STATES GOVERNMENT.'

IT APPEARS FROM THE CORRESPONDENCE IN THE ADMINISTRATIVE FILE PERTAINING TO THIS MATTER, AND IT IS STATED IN THE CONTRACTING OFFICER'S LETTER, THAT THE FAILURE TO AMEND THE CONTRACTUAL DOCUMENTS TO COVER THE FULL PERIOD OF MR. FAIRBANKS' SERVICE WAS AN OVERSIGHT IN THE ICA FIELD OFFICE; AND THAT THE SERVICES PERFORMED BY MR. FAIRBANKS DURING THE MONTH OF JANUARY, 1961, FOR WHICH HE WAS PAID THE AMOUNT OF $1,100 ON THE VOUCHER PREPARED BY THE INTERNATIONAL COOPERATION ADMINISTRATION, BELGRADE, YUGOSLAVIA, DATED JANUARY 31, 1961 (ATTACHMENT 2), WERE OF VALUE IN CARRYING OUT THE PURPOSE SOUGHT TO BE ACCOMPLISHED BY THE GOVERNMENT OF THE UNITED STATES IN ENTERING INTO THE CONTRACTUAL ARRANGEMENTS GIVING RISE TO HIS EMPLOYMENT. IN VIEW THEREOF, THE CONTRACTING OFFICER RECOMMENDS, IN EFFECT, THAT NO OBJECTION BE RAISED TO THE PAYMENT OF $1,100 TO MR. FAIRBANKS AS COMPENSATION FOR HIS SERVICES DURING THE MONTH OF JANUARY, 1961, AND THAT YOUR AGENCY BE AUTHORIZED TO MAKE PAYMENT FOR CERTAIN TRAVEL EXPENSE AND PER DIEM CLAIMED BY MR. FAIRBANKS IN CONNECTION WITH HIS RETURN TRIP TO THE UNITED STATES, AND CONSULTATION IN WASHINGTON, D.C., AT THE CONCLUSION OF HIS WORK UNDER THE MEMORANDUM OF AGREEMENT INVOLVED.

IN THE CIRCUMSTANCES, WE ARE NOT REQUIRED TO OBJECT TO THE PAYMENT OF $1,100 WHICH WAS MADE TO MR. FAIRBANKS, AND WE WILL NOT ENTERTAIN ANY OBJECTION TO PAYMENT OF THE REFERRED-TO TRAVEL AND PER DIEM EXPENSE, WHICH IS IN THE TOTAL AMOUNT OF $167.66, AS SET FORTH ON THE FOREIGN SERVICE TRAVEL VOUCHER, ATTACHMENT 1, IF OTHERWISE PROPER.