BNUMBER: B-262168
DATE: May 24, 1996
TITLE: John Martino
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Matter of:John Martino
File: B-262168
Date:May 24, 1996
DIGEST
The Claims Collection Act and 31 U.S.C. sec. 3702(a) provide GAO with
jurisdiction over claims submitted by employees against whom liability
has been assessed by their agencies. Our review is limited to a
review of the agency's legal basis for assessing liability (i.e., the
existence of statutory authority or appropriate regulations), whether
the agency has followed the applicable statute and regulations, and
whether the agency had a rational basis for assessing liability.
Where the Panama Canal Commission found that the employee, a
contracting officer, failed to comply with the Federal Acquisition
Regulation requirement to conduct a market price study prior to
extending a contract, a rational basis exists for assessing liability
against him. Employee was provided notice and a hearing pursuant to
31 U.S.C. sec. 3716 and agency regulations. The Panama Canal Commission
acted properly in using administrative offset procedures to set off
his debt against his final salary payments and accumulated leave and
is entitled to proceed through the Office of Personnel Management to
collect the balance remaining against his Civil Service Retirement
Fund account.
DECISION
This decision is in response to a letter from the attorney for John
Martino concerning his indebtedness to the Panama Canal Commission
(PCC). Mr. Martino is contesting the validity of an $88,040
assessment of indebtedness on his part to the PCC.
BACKGROUND
The case stems from the 1991 extension authorized by Mr. Martino of
the PCC's contract PC-1p-1903 for liquid chlorine. In January of
1994, the PCC Inspector General reported irregularities in the
procurement and the PCC subsequently found that Mr. Martino was
obligated to pay the agency the sum of $88,040 as reimbursement for
the unnecessary expenditure of commission funds for which he was
alleged to be responsible.
Mr. Martino retired from the PCC effective January 4, 1994. In March
1994, PCC sent Mr. Martino notice of his indebtedness. The PCC
partially offset the debt against his final salary payments and
accumulated leave and informed Mr. Martino that the offset was in
accordance with the Federal Claims Collections Standards, 4 C.F.R.
Part 102 (31 U.S.C. sec. 3716 (1994)). PCC is seeking the balance of the
debt through administrative offset against monies due to Mr. Martino
from the Civil Service Retirement and Disability Fund.
Mr. Martino claims that the offset against his salary was required to
be conducted pursuant to 5 U.S.C. sec. 5514 (1994) and its implementing
regulations found in 35 C.F.R. Part 256 which provide him the
opportunity to question the validity of the debt by submitting a claim
to our Office.
In response, the PCC asserts that GAO does not have jurisdiction over
this matter. In a letter to our Office, the PCC reiterates its
assertion that the offsets were commenced after Mr. Martino's
retirement and that its action is therefore an administrative offset
against a former employee under 4 C.F.R. Part 102, not a salary offset
against a current employee subject to further proceedings under 35
C.F.R. Part 256.
ANALYSIS AND CONCLUSION
Under 31 U.S.C. sec. 3702(a) (1994) the Comptroller General has the
authority to settle all claims of or against the United States
Government, except those claims which are under the exclusive
jurisdiction of administrative agencies pursuant to specific statutory
authority. Our Office has recognized that the PCC has limited
authority granted under the Panama Canal Act of 1979 to settle the
claims arising against the government and the PCC relating to property
damage and loss and personal injury or death arising from the
operation of the waterway. Panama Canal Commission Liability and
Settlement Authority on Claims, B-197052, Apr. 22, 1980. Our Office,
however, has jurisdiction under 31 U.S.C. sec. 3702(a) of other claims by
or against the PCC in the absence of any statutory authority granting
jurisdiction to the PCC over such claims.
Our jurisdiction over Mr. Martino's claim does not depend on whether
the collection is taken as a "salary offset" under 5 U.S.C. sec. 5514 or
as an "administrative offset" under 31 U.S.C. sec. 3716. However, in
light of Veterans Administration, 64 Comp. Gen. 907 (1985), we agree
with PCC that the offset against Mr. Martino's final salary
appropriately was made under the Federal Claims Collection Act, 31
U.S.C. sec. 3716, i.e., "administrative offset."
Turning to the merits of the dispute, we have limited our review of
claims by agencies against employees to a review of the agency's legal
basis for assessing liability (i.e., the existence of statutory
authority or appropriate regulations) and whether the agency has
followed the applicable statute and regulations. We will not
second-guess the agency's determination that a given set of facts
constitutes negligence unless the agency's finding can be said to lack
a rational basis. Walter C. Stephenson, 65 Comp. Gen. 177, 179-80
(1986).
The PCC assessed liability against Mr. Martino, the contracting
officer, for failing to comply with the Federal Acquisition Regulation
(FAR) requirement to conduct a market price study prior to extending a
contract. FAR sec. 17.207. PCC also relied on its acquisition
regulations, set out in 48 C.F.R. Part 35, which state that personal
liability may be assessed against the individual who has made an
unauthorized commitment of government funds. Panama Canal Commission
Acquisition Rules (PAR) sec. 3501.602-3(b)(1).
The basis for assessing the debt against Mr. Martino was the lack of
evidence that he conducted or relied upon any kind of market survey in
signing the contract extension as required by regulation. PCC's
Inspector General found substantial evidence to support the conclusion
that the extension was made with the knowledge that it was not
supported by fact and was contrary to law or regulation. In
particular, the contract extension was for $355/ton of liquid chlorine
at a time when the producer price index was around $200/ton at the
point of origin and the contractor was paying $165/ton to its
supplier. The PCC concluded that since prices were considerably lower
than the PCC was paying, Mr. Martino could not have conducted the
required investigation of market prices prior to extending the
contract. The PCC found that Mr. Martino's deliberate disregard of
the FAR which required a market analysis made him responsible for the
losses sustained by PCC as a result of his actions. Given the wide
disparity in prices between what the PCC paid and what it might have
paid for the commodity in question, we conclude that the PCC had a
rational basis for the finding it reached.
In collecting the debt through administrative offset under 31 U.S.C. sec.
3716, the PCC proceeded in accordance with 4 C.F.R. Part 102. The
procedural rights to which Mr. Martino was entitled included written
notice of the nature and amount of the debt, notice of the agency's
intention to collect the debt by offset, an opportunity to inspect and
copy agency records pertaining to the debt, the opportunity to obtain
review within the agency of the determination of indebtedness, and the
opportunity to enter into a written agreement with the agency to repay
the debt.
Our analysis of the record indicates that the PCC followed the
applicable statute and regulations in administering the offset. Mr.
Martino was provided notice of his indebtedness on March 2, 1994,
PCC's intention to administratively offset the debt was provided in a
June 14, 1994, letter to Mr. Martino; Mr. Martino was furnished
documents on June 20, 1994; and a hearing was held with Mr. Martino
present on October 18, 1994.
Given the limited scope of our review in this case, there is no relief
our Office can grant Mr. Martino. As noted above, we conclude that
the PCC had a rational basis for assessing liability against him.
Moreover, it followed the applicable statute and regulations.
Accordingly, the collection action taken through administrative offset
was proper and the PCC may proceed through the Office of Personnel
Management to collect on its claim against Mr. Martino's Civil Service
Retirement and Disability Fund account.
/s/Seymour Efros
for Robert P. Murphy
General Counsel