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B-152160, OCTOBER 24, 1963, 43 COMP. GEN. 408

B-152160 Oct 24, 1963
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MILITARY PERSONNEL - RETIRED - CONTRACTING WITH GOVERNMENT - LIAISON ACTIVITIES THE CONTACTS INITIATED BY A RETIRED REGULAR OFFICER OF THE ARMED FORCES ON BEHALF OF HIS COMPANY WITH PROCUREMENT AND BUDGET PERSONNEL OF THE GOVERNMENT TO DISCUSS GENERAL TRENDS IN THE MILITARY ENVIRONMENT THAT DO NOT CONTEMPLATE THE SELLING ACTIVITIES FROM WHICH RETIRED OFFICERS ARE RESTRICTED FOR A PERIOD OF 3 YEARS UNDER 5 U.S.C. 59C AND 37 U.S.C. 801 (C). NEVERTHELESS IS CONSIDERED EMPLOYMENT WITHIN THE PROHIBITORY STATUTES. DEFINING SELLING AS "ANY OTHER LIAISON ACTIVITY WITH A VIEW TOWARD THE ULTIMATE CONSUMMATION OF A SALE ALTHOUGH THE ACTUAL CONTACT IS SUBSEQUENTLY NEGOTIATED BY ANOTHER PERSON. THE OFFICER INITIATING CONTACTS WITH THE DEPARTMENT OF DEFENSE OR THE MILITARY DEPARTMENTS AND ESTABLISHMENTS IN THE PERFORMANCE OF HIS DUTIES IS NOT ENTITLED TO RECEIVE RETIRED PAY WHILE EMPLOYED IN ANY SUCH POSITION WITH HIS COMPANY DURING THE 3-YEAR PERIOD FOLLOWING RETIREMENT.

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B-152160, OCTOBER 24, 1963, 43 COMP. GEN. 408

MILITARY PERSONNEL - RETIRED - CONTRACTING WITH GOVERNMENT - LIAISON ACTIVITIES THE CONTACTS INITIATED BY A RETIRED REGULAR OFFICER OF THE ARMED FORCES ON BEHALF OF HIS COMPANY WITH PROCUREMENT AND BUDGET PERSONNEL OF THE GOVERNMENT TO DISCUSS GENERAL TRENDS IN THE MILITARY ENVIRONMENT THAT DO NOT CONTEMPLATE THE SELLING ACTIVITIES FROM WHICH RETIRED OFFICERS ARE RESTRICTED FOR A PERIOD OF 3 YEARS UNDER 5 U.S.C. 59C AND 37 U.S.C. 801 (C), NEVERTHELESS IS CONSIDERED EMPLOYMENT WITHIN THE PROHIBITORY STATUTES, PARAGRAPH 1.C.2 (D) OF THE DEFENSE DEPARTMENT DIRECTIVE 5500.7, MAY 17, 1963, DEFINING SELLING AS "ANY OTHER LIAISON ACTIVITY WITH A VIEW TOWARD THE ULTIMATE CONSUMMATION OF A SALE ALTHOUGH THE ACTUAL CONTACT IS SUBSEQUENTLY NEGOTIATED BY ANOTHER PERSON," AND, THEREFORE, THE OFFICER INITIATING CONTACTS WITH THE DEPARTMENT OF DEFENSE OR THE MILITARY DEPARTMENTS AND ESTABLISHMENTS IN THE PERFORMANCE OF HIS DUTIES IS NOT ENTITLED TO RECEIVE RETIRED PAY WHILE EMPLOYED IN ANY SUCH POSITION WITH HIS COMPANY DURING THE 3-YEAR PERIOD FOLLOWING RETIREMENT.

TO THE SECRETARY OF DEFENSE, OCTOBER 24, 1963:

REFERENCE IS MADE TO LETTER OF JULY 26, 1963, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION AS TO WHETHER THE PROVISIONS OF 5 U.S.C. 59C PRECLUDE THE PAYMENT OF RETIRED PAY TO A RETIRED REGULAR OFFICER OF THE ARMED FORCES WHO, DURING THE PERIOD FIXED BY THAT LAW, IS ENGAGED IN THE BUSINESS ACTIVITIES DISCUSSED IN COMMITTEE ACTION NO. 325 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

SECTION 59C, TITLE 5, OF THE U.S.C. (1958 ED., SUPP. IV), AS AMENDED BY PUBLIC LAW 87-777, 76 STAT. 777, APPROVED OCTOBER 9, 1962, WHICH INCREASED FROM 2 TO 3 YEARS THE PERIOD PRESCRIBED THEREIN, PROVIDES AS FOLLOWS:

NO PAYMENT SHALL BE MADE FROM APPROPRIATIONS IN ANY ACT TO ANY OFFICER ON THE RETIRED LISTS OF THE REGULAR ARMY, REGULAR NAVY, REGULAR MARINE CORPS, REGULAR AIR FORCE, REGULAR COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE FOR A PERIOD OF THREE YEARS AFTER RETIREMENT WHO FOR HIMSELF OR FOR OTHERS IS ENGAGED IN THE SELLING OF OR CONTRACTING FOR THE SALE OF OR NEGOTIATING FOR THE SALE OF TO ANY AGENCY OF THE DEPARTMENT OF DEFENSE, THE COAST GUARD, THE COAST AND GEODETIC SURVEY, AND THE PUBLIC HEALTH SERVICE ANY SUPPLIES OR WAR MATERIALS.

SUBSTANTIALLY THE SAME PROVISIONS ARE NOW CONTAINED IN 37 U.S.C. 801 (C).

IN OUR DECISION OF NOVEMBER 8, 1962, 42 COMP. GEN. 236, B-149705, WE NOTED THAT THE LEGISLATIVE HISTORY OF THE AMENDING STATUTE DID NOT INDICATE THAT THE TERMS USED IN 5 U.S.C. 59C HAD BEEN IMPROPERLY INTERPRETED OR APPLIED IN DECISIONS AND REGULATIONS PERTAINING THERETO OR THAT ANY CHANGE IN SUCH RESPECT SHOULD BE MADE IN THE ADMINISTRATION OF THE NEW LAW. IN REPORTING ON H.R. 11217, WHICH BECAME PUBLIC LAW 87-777, SUPRA, THE SENATE ARMED SERVICES COMMITTEE, ON PAGE 4 OF S.REPT. NO. 1979, STATED THAT THE BILL "IN NO WAY ENLARGES THE SCOPE OF SELLING ACTIVITIES NOW PROHIBITED BY LAW OR REGULATION ON THE PART OF RETIRED OFFICERS" AND CITED THE DEFINITION OF THE TERM "SELLING" CONTAINED IN PARAGRAPH VI.B OF DEPARTMENT OF DEFENSE DIRECTIVE NO. 5500.7, DECEMBER 12, 1961, AS BEING BASED UPON THE APPLICABLE PROVISIONS OF LAW AND THEIR INTERPRETATION. THE WORD "SELLING" IS NOW DEFINED WITH MINOR MODIFICATIONS IN PARAGRAPH I.C.2 OF INCLOSURE 3-C TO DEPARTMENT OF DEFENSE DIRECTIVE 5500.7, MAY 17, 1963, IN CONNECTION WITH THE PROVISIONS OF 5 U.S.C. 59C AND 37 U.S.C. 801 (C), AS FOLLOWS:

FOR THE PURPOSE OF THIS STATUTE,"SELLING" MEANS:

A. SIGNING A BID, PROPOSAL, OR CONTRACT;

B. NEGOTIATING A CONTRACT;

C. CONTACTING AN OFFICER OR EMPLOYEE OF ANY OF THE FOREGOING DEPARTMENTS OR AGENCIES FOR THE PURPOSE OF:

(1) OBTAINING OR NEGOTIATING CONTRACTS,

(2) NEGOTIATING OR DISCUSSING CHANGES IN SPECIFICATIONS, PRICE, COST ALLOWANCES, OR OTHER TERMS OF A CONTRACT, OR

(3) SETTLING DISPUTES CONCERNING PERFORMANCE OF A CONTRACT, OR

D. ANY OTHER LIAISON ACTIVITY WITH A VIEW TOWARD THE ULTIMATE CONSUMMATION OF A SALE ALTHOUGH THE ACTUAL CONTRACT THEREFOR IS SUBSEQUENTLY NEGOTIATED BY ANOTHER PERSON.

IN THE COMMITTEE ACTION IT IS STATED THAT WITHIN THE 3-YEAR PERIOD FROM RETIREMENT THE RETIRED OFFICER WAS EMPLOYED AS A PLANNING AND EVALUATION MANAGER WITH A COMPANY WHICH SELLS TO DEPARTMENT OF DEFENSE AGENCIES AND THE DUTIES OF THAT POSITION WERE ESSENTIALLY CARRIED OVER INTO HIS NEW ASSIGNMENT AS STAFF ASSISTANT-MILITARY SYSTEMS, PLANNING AND EVALUATION, THE RESPONSIBILITIES OF WHICH ARE DESCRIBED THEREIN AS FOLLOWS:

STUDY, ANALYZE AND PROJECT DEFENSE AND CIVILIAN SPACE REQUIREMENTS AND RELATED ECONOMIC ENVIRONMENTS TO ENABLE THE DIVISION TO PROPERLY SELECT TECHNICAL OBJECTIVES, RESEARCH AND DEVELOPMENT PROJECTS, PRODUCT LINES AND SPECIFIC PRODUCTS AND SERVICES. MAINTAIN IN CURRENT FORM A LIST OF POTENTIAL MILITARY ASTRONAUTICS BUSINESS OPPORTUNITIES. RELATE DIVISION POSITION TO CUSTOMER'S PRESENT AND POTENTIAL REQUIREMENTS AND RECOMMEND COURSES OF ACTION TO CORRECTLY ORIENT DIVISION POSITION TO BETTER SERVE CUSTOMER NEEDS. ADVISE AND RECOMMEND COURSES OF ACTION TO DEPARTMENT AND PROJECT MANAGERS IN THE CONDUCT OF THEIR LIAISON WITH GOVERNMENT AGENCIES. EVALUATE THE QUALITY OF DIVISION PERFORMANCE ON MILITARY CONTRACTS AND ASSIST THE DIVISION IN ATTAINING AND MAINTAINING A CORRECT IMAGE AND SUPERIOR REPUTATION FOR PERFORMANCE. COORDINATE WITH AND ASSIST DIVISION PERSONNEL IN THE PREPARATION OF PROPOSALS TO INSURE MEETING MILITARY TECHNICAL REQUIREMENTS. STUDY THE MILITARY ENVIRONMENT AND KEEP DIVISION PERSONNEL ADVISED OF TRENDS, CHANGES IN POLICIES AND PRACTICES, REORGANIZATIONS AND SHIFTS IN AREAS OF RESPONSIBILITY TO THE END THAT THE DIVISION BE KEPT CURRENT ON THE OVERALL MILITARY PICTURE AND ALERT TO THE CHANGES IN REQUIREMENTS AND NECESSARY ALTERATIONS IN DIVISION BUSINESS PRACTICES. THIS POSITION SHALL NOT HAVE RESPONSIBILITY FOR MARKETING OF DIVISION PRODUCTS OR SERVICES; NOR FOR ANY PHASE OF CONTRACT NEGOTIATION OR SETTLEMENT; NOR FOR SELLING IN ANY FORM.

THE RESPONSIBILITIES OF THE POSITION AS SO DESCRIBED DO NOT INVOLVE ANY OF THE ACTIVITIES CONTEMPLATED BY THE ABOVE-QUOTED DEFINITION OF SELLING. THE STATEMENT OF RESPONSIBILITIES OF THE PRIOR POSITION, HOWEVER, INCLUDED A REQUIREMENT THAT THE RETIRED OFFICER "MAKE AND SUPERVISE CONTACTS WITH ALL LEVELS OF GOVERNMENT SPACE AGENCIES AND PRIVATE INDUSTRIAL CONCERNS FOR THE PURPOSE OF KEEPING THE DIVISION FULLY INFORMED ON NEW DEVELOPMENTS.' IN EXPLANATION OF THIS REQUIREMENT, THE RETIRED OFFICER STATED THAT THE PROVISION ALSO APPLIED TO DEPARTMENT OF DEFENSE AGENCIES AND THAT THE WORD "SUPERVISE" WAS USED IN THE SENSE OF KEEPING DIVISION PERSONNEL AWARE OF WHERE CERTAIN RESPONSIBILITIES LIE WITHIN THE DEPARTMENT OF DEFENSE AND ADVISING THEM AS TO WHAT LEVEL OF AUTHORITY TO MAKE CONTACT, ETC.

IT IS STATED IN THE COMMITTEE ACTION THAT IN BOTH THE PRIOR AND PRESENT POSITIONS THE OFFICER INITIATES CONTACTS WITH PERSONNEL OF THE DEPARTMENT OF DEFENSE AND MILITARY DEPARTMENTS INCLUDING COMMAND OFFICERS OF AIR FORCE INSTALLATIONS, AND PERSONNEL WHOSE POSITIONS ARE IN THE PROCUREMENT AND PRODUCTION, OPERATIONS, RESEARCH AND TECHNOLOGY, SYSTEMS, DEVELOPMENT PLANNING, AND LOGISTICS FIELDS.

THE RETIRED OFFICER EXPLAINS THAT THE PURPOSE OF THESE CONTACTS WITH DEPARTMENT AND INSTALLATION PERSONNEL IS TO DISCUSS GENERAL TRENDS IN THE MILITARY ENVIRONMENT, LIMITED TO SUCH SUBJECTS AS:

ORGANIZATION CHANGES INCLUDING CHAIN OF COMMAND, SHIFTS OF RESPONSIBILITY, IDENTIFICATION OF PERSONNEL ASSIGNMENTS AND LOCATION OF VARIOUS PROGRAM MANAGEMENT OFFICES.

PROCUREMENT PROCEDURES TO INCLUDE POLICY CHANGES, TYPE OF PROGRAM MANAGEMENT PREFERRED, OFFICES OF RESPONSIBILITY FOR VARIOUS PROGRAMS, ETC.

DOD PROGRAM PACKAGE BUDGET TO INCLUDE SCOPE, FORMAT, IMPORT ON MILITARY PROGRAMS AND REQUIREMENTS, ETC.

SPACE PROGRAM TO INCLUDE THE ROLES OF NASA AND THE AIR FORCE AND IMPACT ON FUTURE MILITARY ROLES AND MISSIONS.

CONSOLIDATION OF AUTHORITY IN DOD AND HOW IT WOULD AFFECT TRADITIONAL SERVICE ROLES, MISSIONS AND METHODS OF OPERATION.

THE SHIFT OF POLICY IN REGARD TO CREATION OF ADDITIONAL FORCES FOR THE CONDUCT OF LIMITED WAR AS OPPOSED TO FORMER POLICY OF FIGHTING LIMIT WARS WITH ASSETS FROM OUR GENERAL WAR FORCES.

ROLE OF THE AEROSPACE CORPORATION IN AIR FORCE MANAGEMENT.

POLICIES AND PROCEDURES RELATIVE TO LOGISTICS SUPPORT OF WEAPON SYSTEMS DURING DEVELOPMENT AND INITIAL OPERATING CAPABILITY PHASES PRIOR TO RESPONSIBILITY PASSING TO THE LOGISTICS COMMAND.

THE COMMITTEE ACTION REFERS TO THAT PORTION OF THE DEFINITION OF SELLING" CONTAINED IN PART "D" ABOVE CONCERNING ANY OTHER LIAISON ACTIVITY WITH A VIEW TOWARD THE ULTIMATE CONSUMMATION OF A SALE. IT NOTES THAT THE CASE CONSIDERED IN 41 COMP GEN. 799, IN WHICH WE HELD THAT SALES ACTIVITIES WERE NOT SHOWN ON THE PART OF A RETIRED OFFICER WHO INITIATED NO CONTACTS WITH DEPARTMENT OF DEFENSE PERSONNEL AND WHOSE DUTIES WERE MERELY OF AN ANALYTICAL NATURE AIMED AT KNOWING WHAT IS GOING TO BE BOUGHT AND WHAT FUTURE REQUIREMENTS MIGHT BE, DIFFERS FROM THE PRESENT CASE TO THE EXTENT THAT THE OFFICER IN THE PRESENT CASE DOES INITIATE CONTACTS WITH THE DEPARTMENT OF DEFENSE OR THE MILITARY DEPARTMENTS AND ESTABLISHMENTS IN THE PERFORMANCE OF HIS DUTIES. AS TO THIS DIFFERENCE IT IS POINTED OUT IN THE COMMITTEE ACTION THAT WE HELD IN DECISION OF AUGUST 8, 1962, 42 COMP. GEN. 87, THAT NO "SELLING" AS CONTEMPLATED BY THE STATUTE AND DEPARTMENT OF DEFENSE DIRECTIVE 5500.7 WAS INVOLVED IN CERTAIN TYPES OF EMPLOYMENT DISCUSSED THEREIN ALTHOUGH IN THE COURSE OF SOME BUSINESS TRANSACTIONS CONTACTS WERE MADE BETWEEN THE EMPLOYED RETIRED OFFICER AND PERSONNEL OF THE MILITARY DEPARTMENTS, AND THE VIEW IS EXPRESSED THAT THE INSTANT CASE APPEARS TO BE ANALOGOUS TO THE TYPE OF CASE DESCRIBED IN THAT DECISION AS FOLLOWS:

1. THE MAINTENANCE OF LINES OF COMMUNICATION BETWEEN THE CORPORATION AND THOSE GOVERNMENT AGENCIES WITH WHICH THE CORPORATION DOES BUSINESS. VARYING DEGREES, ALL THE CORPORATIONS CONCERNED DO BUSINESS WITH THE NAVY. THE RETIRED OFFICERS CONCERNED HAVE NO AUTHORITY TO NEGOTIATE CONTRACTS OR TO EXECUTE ANY CONTRACTS OF SALES. * * * IN SOME INSTANCES THEIR CONTRACTS OF EMPLOYMENT CONTAIN AN INJUNCTION THAT THEY WILL ENGAGE IN NO ACTIVITIES PRESCRIBED BY LAW OR GOVERNMENTAL REGULATIONS INVOLVING CONFLICT OF INTEREST. COMMUNICATION BETWEEN CORPORATIONS AND THE GOVERNMENT MAY INVOLVE COMPLEXITIES WHICH ARE TIME CONSUMING AND COSTLY IF CONDUCTED ON A TRIAL AND ERROR BASIS. THE SERVICE THE RETIRED OFFICER RENDERS IS TO REDUCE THE TIME AND MONEY LOSS FACTOR INHERENT IN THE COMMUNICATIONS PROCESS.

IN THIS REGARD WE SAID IN THE DECISION THAT:

ON THE BASIS OF SUCH DESCRIPTION THERE APPEARS TO BE LITTLE BASIS FOR A CONCLUSION THAT THE ACTIVITIES REQUIRED OF THE OFFICERS ARE SALES ACTIVITIES FOR PURPOSES OF THE STATUTE. IF, HOWEVER, IN MAINTAINING THE LINES OF COMMUNICATION BETWEEN THE CORPORATION AND THE DEPARTMENT OF THE NAVY THE RETIRED OFFICER IN FACT INITIATES ANY CONTACTS WITH THE NAVY FOR ANY OF THE PURPOSES ENUMERATED IN THE ABOVE QUOTED PROVISIONS OF DEPARTMENT OF DEFENSE DIRECTIVE 5500.7, HE WOULD BE SUBJECT TO THE STATUTE. 40 COMP. GEN. 511, B-148882, SUPRA.

IF NOTHING MORE APPEARED IN THIS CASE THAN THE JOB DESCRIPTION QUOTED ABOVE WE WOULD BE INCLINED TO AGREE WITH THE COMMITTEE'S VIEW. HOWEVER, AS EXPRESSLY RECOGNIZED IN THAT DECISION, JOB DESCRIPTION PROVISIONS NEGATING SALES ACTIVITIES ARE NOT CONCLUSIVE OF THE MATTER WHERE OTHER INFORMATION INDICATES THAT THE ACTIONS OF A RETIRED OFFICER IN THE COURSE OF HIS EMPLOYMENT PARTAKE OF THE CHARACTERISTICS OF THE ACTIVITIES CONTEMPLATED IN PART "D" OF THE ABOVE DEFINITION OF SELLING.

IN THIS CASE THE RETIRED OFFICER'S DUTIES AND RESPONSIBILITIES AS EXPLAINED BY HIM APPEAR TO BE ANALOGOUS TO THOSE DESCRIBED IN A PROPOSED EMPLOYMENT CONTRACT CONSIDERED IN 40 COMP. GEN. 511, IN WHICH WE HELD THAT WE COULD NOT VIEW THE RETIRED OFFICER'S PROPOSED EMPLOYMENT AS EXEMPT FROM A SIMILAR STATUTE (10 U.S.C. 6112 (B) ( WHILE THE CONTRACT CONTAINED A PROVISION THAT WOULD HAVE REQUIRED HIM TO VISIT MILITARY INSTALLATIONS AND CONSULT WITH VARIOUS OFFICIALS FOR THE PURPOSE OF DETERMINING WHERE A CURRENT OR FUTURE NEED MAY EXIST FOR THE PRODUCTS WHICH HIS EMPLOYER INTENDED TO OFFER FOR SALE TO SUCH INSTALLATIONS OR OFFICIALS. COMMENTING ON THAT DECISION WE STATED IN 42 COMP. GEN. 236, B-149705, NOVEMBER 8, 1962, THAT OUR CONCLUSION WAS BASED ON THE VIEW THAT IF THE STATUTES WERE TO BE COMPLETELY EFFECTIVE, THE CONTACTS CONTEMPLATED BY THE CONTRACT PROVISION MUST BE REGARDED IN THE FIRST INSTANCE AS BEING FOR THE PURPOSE OF SELLING AND WHILE WE RECOGNIZE THAT SUCH A PRIMA FACIE CASE MAY BE REBUTTED BY THE ACTUAL FACTS IN A PARTICULAR CASE, THAT CONTINGENCY AFFORDED NO BASIS FOR IGNORING THE APPARENTLY INTENDED SALES RESULTS OF THE CONTACTS. WE FURTHER CONCLUDED THAT, GENERALLY, PRECONTRACT CONTACTS WITH OFFICIALS OF DEFENSE AGENCIES BY RETIRED OFFICERS REPRESENTING COMPANIES WHICH SELL SUPPLIES OR WAR MATERIALS TO THOSE AGENCIES SHOULD BE VIEWED AS COMING WITHIN THE SCOPE OF THE STATUTES AND THE PROVISIONS OF THE DEPARTMENT OF DEFENSE DIRECTIVE UNLESS CLEARLY AND ADEQUATELY SHOWN TO BE FOR SOME OTHER PURPOSES.

ALTHOUGH IN THE INSTANT CASE THE PURPOSE OF THE CONTACTS IS STATED TO DISCUSS GENERAL TRENDS, IT IS NOTED THAT THE SUBJECTS LISTED ABOVE INCLUDE CONTACTS FOR THE PURPOSE OF "PROCUREMENT PROCEDURES TO INCLUDE POLICY CHANGES, TYPE OF PROGRAM MANAGEMENT PREFERRED, OFFICES OF RESPONSIBILITY FOR VARIOUS PROGRAMS, ETC., " AND "DOD PROGRAM PACKAGE BUDGET TO INCLUDE SCOPE, FORMAT, IMPORT ON MILITARY PROGRAMS AND REQUIREMENTS, ETC.' WHILE WE HAVE RECOGNIZED THAT A CONTACT BY A RETIRED OFFICER IN HIS CAPACITY AS A NONCONTRACTING TECHNICAL CONSULTANT WITH A NONCONTRACTING SPECIALIST WHICH INVOLVES NO SALES ACTIVITY BUT IS MERELY FOR THE PURPOSE OF ACQUIRING TECHNICAL INFORMATION, WHETHER ABOUT THE FUTURE NEEDS AND PROGRAMS OF THE SERVICE OR FOR OTHER PURPOSES, NEED NOT BE VIEWED AS COMING WITHIN THE SCOPE OF THE STATUTE (42 COMP. GEN. 236, B-149705, NOVEMBER 8, 1962), GRAVE DOUBT EXISTS WHERE, AS HERE, THE CONTACTS ARE MADE BY A RETIRED OFFICER ON BEHALF OF HIS COMPANY WITH PROCUREMENT AND BUDGET PERSONNEL, THAT SUCH CONTACTS ARE MADE FOR PURPOSES OTHER THAN THOSE ENUMERATED IN THE ABOVE-QUOTED PROVISIONS OF DEPARTMENT OF DEFENSE DIRECTIVE. SINCE ON THE PRESENT RECORD THE DUTIES OF THE RETIRED OFFICER HERE CONCERNED INCLUDE, AMONG OTHER THINGS, INITIATING CONTACTS WITH PROCUREMENT AND BUDGET PERSONNEL IN HIS CAPACITY AS COMPANY REPRESENTATIVE AND HE APPEARS TO HAVE PERFORMED SUCH DUTIES, WE REASONABLY MAY NOT CONCLUDE THAT HIS EMPLOYMENT DOES NOT COME WITHIN THE PURVIEW OF THE PROHIBITORY STATUTE AND THE ABOVE-QUOTED PROVISIONS OF DEPARTMENT OF DEFENSE DIRECTIVE.

ACCORDINGLY, WE ARE OF THE VIEW THAT THE OFFICER IS NOT ENTITLED TO RECEIVE ANY RETIRED PAY WHILE EMPLOYED IN SUCH POSITIONS WITH THE COMPANY DURING THE 3-YEAR PERIOD AFTER HIS RETIREMENT.

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