BNUMBER:  B-270715
DATE:  July 23, 1996
TITLE:  Defense Finance and Accounting Service:  Making Payments to
Assignees Under a Lease Agreement After Improper Payment Has
Been Made to Assignor

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Matter of:Defense Finance and Accounting Service:  Making Payments to 
          Assignees Under a Lease Agreement After Improper Payment Has 
          Been Made to Assignor

File:     B-270715

Date:July 23, 1996

DIGEST

1.  Although lease assignment did not comply with the notice 
requirement of the Assignment of Claims Act, the record establishes 
that the agency was aware of, assented to and recognized the 
assignment of the payments under the lease contract.  Therefore, the 
agency should pay money owed under contract to the assignees but 
improperly paid to the assignor.  See cases cited.

2.  When an agency pays a party other than the assignee when an 
assignment has been recognized, it pays at its peril.  Therefore, 
assignee is entitled to payment even though the agency has not yet 
recovered the erroneous payments from the assignor. 
3.  The making of the payment to the assignees does not relieve the 
Air Force accountable officers of liability for the erroneous payment.  
As a result of 31 U.S.C.  sec.  3528(d), Air Force certifying officers are 
not statutorily liable for improper certifications, and hence not 
subject to relief from liability by the Comptroller General.  The 
liability and relief therefrom, if any, of Air Force certifying 
officers is governed by Air Force regulation.  

4.  Under 31 U.S.C.  sec.  3526, an agency's accounts must be settled 
within 3 years of the date when they are substantially complete and 
ready for audit.  For purposes of an improper payment to an assignor 
(instead of to the assignee), an agency's accounts are substantially 
complete and ready for audit as of the date of payment.  To protect 
the governments rights to collect from any accountable officers liable 
for the improper payment and to permit consideration of any requests 
for relief, pursuant to 31 U.S.C.  sec.  3526(g), we are suspending the 
statute of limitations with regard to this matter.  

DECISION

The Defense Finance and Accounting Service (DFAS), Department of 
Defense, requests an advance decision on the propriety of a payment 
made to a lessor/assignor under a lease contract assigned to two 
financial institutions.  Specifically, DFAS asks about the 
enforceability of the lease assignment and the accountability of 
responsible parties involved in making the lease payment.  Further, 
should we determine that the payment was improper, DFAS asks when the 
3-year statute of limitations for settlement of accounts contained in 
31 U.S.C.  sec.  3526(c) began to run.  For the reasons discussed below, we 
conclude that the assignment of lease payments is valid and 
enforceable since the agency was aware of and recognized the 
assignment through its past payments to the assignees.  Therefore, the 
agency is liable to the assignees for the amount of the improper 
payment to the assignor and the accountable officers involved are 
financially liable to the government.  For purposes of our settlement 
of accounts authority, the 3-year period begins to run on the date the 
Air Force made the improper payment to the assignors.  Hence, in this 
case, the 3-year period of limitation started to run on May 9, 1994.  
To protect the interests of the government and the accountable 
officers, we are suspending the statute of limitations to permit the 
submission of any appropriate requests for relief of the accountable 
officers involved in this matter.  

BACKGROUND

On December 16, 1985, the Department of the Air Force entered into a 
build-lease agreement with an Italian construction company, Societa 
Italiana per gli appalti  construzioni S.p.A. (SIAC), owned by Mr. 
Guiseppe Spampinato, to provide housing units for assigned personnel 
at the Comiso Air Base, Italy (Comiso).  SIAC agreed to build the 
housing development with third party financing in return for the Air 
Force's promise to enter into a firm 10-year lease for an annual rent 
of Swiss Franc 10,189,920 upon proper completion of the housing 
development.  SIAC completed the housing development and the lease 
period commenced on May 26, 1988.  

On October 21, 1988, Air Force and the lessor, SIAC, agreed to amend 
the lease agreement to modify the standard Assignment of Claims 
clause.  The bilateral modification specifically provided for the 
assignment of lease payments to two financial institutions.  As part 
of the financing arrangements, SIAC assigned to the Banca Nazionale 
del Lavoro (BNL), acting on behalf of itself and two other banks, 87.5 
percent of each annual rent payment and Banco di Napoli International, 
S.A. (BNI) the remaining 12.5 percent.  SIAC assigned the lease 
payments to the respective banks to liquidate loans provided to 
finance completion of the build-lease contract.  In addition, a 
company called IRITECHNICA guaranteed repayment of the loan made by 
BNL to SIAC. 

According to the record, the contracting officer, the Civil Engineer 
at the Air Force's Europe Office (USAFE), acknowledged receiving a 
copy of the assignment documents and a cover letter entitled "Notice 
of Assignment" on November 1, 1988.  There is no record that the 
assignment document or the Notice of Assignment was provided to the 
responsible finance office.  However, for the years 1988 through 1993, 
the annual lease payments were effected in accordance with the terms 
of the assignment, 87.5 percent to BNL and 12.5 percent to BNI.[1]   
Accordingly, the Air Force disbursing functions had constructive 
knowledge of the assignment as evidenced by its course of conduct in 
making payments consistent with the terms of the assignments.     

On March 23, 1994, SIAC filed an invoice for the advance yearly rental 
payment for the lease period beginning May 26, 1994.  The invoice 
referenced the Notice of Assignment and was identical to previous 
invoices.  SIAC filed this invoice at the San Vito AS office since 
this office assumed caretaker responsibilities for the Comiso office, 
which closed in 1991.  However, around the time of the questioned 
payment, the Air Force transferred the disbursing responsibilities of 
the San Vito office to the 26 Air Force Station at Ramstein Air Base 
(26 AFS) as part of an ongoing USAFE-wide regionalization of 
accounting and finance responsibilities.  The 26 AFS received a copy 
of the invoice on May 3, 1994.  On May 4, 1994, Ms. Schneider, an 
employee at the 26 AFS, received a call from Ms. Elana Rivera[2] who 
asserted that this year's rental payment was due April 1, 1994, and 
was therefore past due.  Ms. Rivera inquired into whether Mr. 
Spampinato could pick up the checks in person at 26 AFS as opposed to 
the standard electronic transfers requested in the invoice.  According 
to Ms. Schneider, Ms. Rivera never mentioned the proper payee or the 
assignment.  Ms. Schneider believed that Ms. Rivera was an employee of 
the San Vito Civil Engineering Squadron.  

Pursuant to Ms. Schneider advice, SIAC faxed a letter on company 
letterhead signed by a SIAC clerk on May 4, 1994, requesting the 26 
AFS to "effect the payment . . . by handing two checks to our Sole 
Director, Mr Spampinato."  This letter contained no reference to the 
assignment nor the proper payees, although it did reference the 
previous invoice of March 23, 1994, and the requirement for two 
checks.  Ms. Schneider gave the invoice and the May 4, 1994 letter to 
SSgt. Robert Burke to prepare a payment voucher.  SSgt. Burke prepared 
two vouchers, each for payment to SIAC.  According to the record, 
SSgt. Burke admits to not reading the invoice carefully, as well as 
not realizing that there was an assignment.  SSgt. Burke did not 
obtain a copy of the lease agreement or a receiving report.  At the 
time of the payment, the payment files at San Vito were in transit to 
26 AFS.  The only documents in the 26 AFS file were the invoice and 
May 4, 1994 letter.  

TSgt. Monica Pearson certified the voucher as being correct and proper 
for payment on or shortly after May 5, 1994.  According to the record, 
TSgt. Pearson indicated that she would not have looked for a receiving 
report because that document would have been in a file at San Vito.  
The certified vouchers were subsequently provided to the disbursing 
function for preparation of the checks.  The check preparer noticed 
the requirement for two payments to the same individual and combined 
the amounts for payment by a single check payable to SIAC.  On May 9, 
1994, after ensuring that there were no discrepancies between the 
payment vouchers and the check and after verifying Mr. Spampinato's 
identification, the cashier, Capt. Kenneth Goodman, provided the check 
to Mr. Spampinato.  Mr. Spampinato cashed the check on May 16, 1994, 
at a bank in Milano, Italy.  Mr. Spampinato has acknowledged keeping 
the money for uses other than satisfying the two banks.  As a result, 
BNL, BNI, and IRITECHNICA now seek to enforce the assignment and 
obtain the 1994 payment.

The Air Force subsequently conducted an investigation into the 
payment; however, the Air Force could not locate the relevant payment 
file.  According to TSgt. Rivera, the husband of Elana Rivera, who had 
responsibility for the physical transfer of the files from San Vito to 
26 AFS, he transferred the relevant payment file regarding the SIAC 
assignment along with the other files to 26 AFS.  However, individuals 
at the 26 AFS testified that no file exists.  The investigation failed 
to reveal any suspicious or improper relationship between the Riveras, 
and EDILCAT, SIAC, or Mr. Spampinato.

DISCUSSION

Enforceability of Assignment

The Assignment of Claims Act (Act) provides for assignments of money 
due or to become due under a contract to financial institutions under 
certain conditions.  31 U.S.C.  sec.  3727.  The Act allows the assignment 
of money due if the following conditions are met:
  
     (1)  the contract does not forbid an assignment;

     (2)  unless the contract expressly provides otherwise, the 
     assignment

        (A)  is for the entire amount not already paid;

        (B)  is made to only one party, except that it may be made to 
             a party as agent or trustee for more than one party 
             participating in the financing; and 

        (C)  may not be reassigned; and

     (3)  the assignee files a written notice of the assignment and a 
     copy of the      assignment with the contracting official or the 
     head of the agency, the surety on a bond on the contract, and any 
     disbursing official for the contract.      31 U.S.C.  sec.  3727(c).

In this case, the original lease agreement permitted assignment of the 
rental payments and the lease agreement was further amended to 
expressly provide for the assignment to two financing institutions, 
BNL and BNI.  Both BNL and BNI qualify as assignees under the Act 
since the money that the institutions advanced to SIAC were actually 
used in, or at least made available for, the performance of the 
contract.  See B-216549, Dec. 5, 1984, and cases cited therein.  

The statute requires the assignee to provide notice of the assignment 
to both the appropriate contracting officer and the disbursing 
officer.  The assignees (BNL and BNI) served notice and received 
acknowledgement thereof, on the USAFE Civil Engineer, who, for leasing 
actions, functions as the contracting officer.  However, there is no 
record of notice being provided to any disbursing office.  The 
requirements of the Act must be strictly construed to accomplish the 
purposes of the Act of preventing multiple claims on the government 
and of making unnecessary the investigation of alleged assignments.  
American Financial Associates, Ltd., 5 Cl. Ct. 761, 768 (1984), aff'd, 
755 F.2d 912 (Fed. Cir. 1985); B-234103, August 24, 1989.  However, 
the courts have consistently recognized that "the Government can 
choose to recognize an assignment notwithstanding the bars of the 
Act."  See, e.g., Tuftco Corporation v. United States, 614 F.2d 740 
(Cl. Ct. 1980); Maryland Small Business Development Financing 
Authority v. United States, 4 Cl. Ct. 76 (1983); American Financial 
Associates, Ltd., 5 Cl. Ct. 761 (1984).

Thus, in Tuftco, the court upheld the claim of an assignee that was 
not a financing institution and had failed to provide notice in the 
form required by the Assignment of Claims Act.  In holding that the 
government had waived the requirements of the Assignment of Claims 
Act, the court relied on the fact that the contracting officer had 
acknowledged the assignment in writing and the agency had made the 
first of the required payments under the contract to the assignee.  
The court explained that "[i]t is unnecessary to identify any one 
particular act as constituting recognition of the assignments by the 
Government.  It is enough to say that the totality of the 
circumstances presented to the court establishes the Government's 
recognition of the assignments by its knowledge, assent, and action 
consistent with the terms of the assignments."  614 F.2d at 746.  
(Emphasis added.)

We have applied the Tuftco waiver standards in determining whether an 
assignment that did not satisfy all of the requirements of the 
Assignment of Claims Act bound the government.  In Centennial Systems, 
Inc., 61 Comp. Gen. 53 (1981), we relied on the Tuftco decision in 
holding that an assignment bound the government where the agency 
involved was aware of and had "recognized" the assignment, even though 
notice of the assignment was not given to the agency as required under 
the Act.  Applying those same waiver standards to the case at hand, we 
conclude that although the disbursing officer never received the 
required notification, he was fully aware of and recognized the 
assignments by making multiple payments to the assignees consistent 
with the terms of the assignment.  

We realize that the files regarding the assignments were in transit at 
the time of the 1994 payment, however, the original invoice submitted 
for the 1994 payment referenced the assignment which should have 
prompted additional investigation to determine the validity of the 
payment.  In addition, an agency's complicated or inept systems are 
not a valid defense.  See Central National Bank of Richmond v. United 
States, 91 F. Supp. 738 (Ct. Cl. 1950).  The totality of the 
circumstances leaves no doubt that the assignment was recognized and 
therefore valid and enforceable.

Air Force's Liability

If the government pays a party other than the assignee when an 
assignment has been properly filed, it pays at its peril.  When such 
an error occurs, the United States remains liable to the assignee for 
the amount of the payment.  Tuftco,     614 F.2d at 747; Central 
National Bank, 91 F. Supp at 741; 61 Comp. Gen. 53, 55 (1981).  The 
United States may not refuse to pay the assignee on the grounds that 
it has not effected recovery of the erroneous payment from the 
assignor.  Therefore, BNL and BNI are entitled to receive their 
respective payment from the Air Force for those amounts erroneously 
paid to SIAC.
  
Discharging the Air Force's obligation to the assignees does not 
relieve the assignor of the obligation to repay those amounts that it 
received in contravention of the assignment.  Since the assignor has 
received and used government funds to which it was not entitled, the 
government has and should continue to assert a claim and collect those 
erroneous payments from SIAC or Mr. Spampinato.  Central National 
Bank, 91 F. Supp. at 741.  See also the Federal Claims Collection 
Standards, 4 C.F.R. Chap. II, as amended, 49 Fed. Reg. 8889 (1984).

Accountable Officer's Liability  

The making of the payment to the assignee does not relieve the 
accountable officer(s) of liability for the improper payment.  An 
accountable officer is any government officer or employee who by 
reason of his employment is responsible for or has custody of 
government funds.  62 Comp. Gen. 476, 479 (1983); 59 Comp. Gen. 113, 
114 (1979).  Also, see GAO, Policy and Procedures Manual for the 
Guidance of Federal Agencies, (GAO-PPM), tit. 7, chap. 7 (1993).  
There may be more than one accountable officer in a case and the 
concept of accountability is not limited to the person or persons in 
whose name the account is officially held.  In each case, it is 
necessary to examine the particular facts and circumstances to 
determine who had responsibility for or custody of the funds during 
the relevant stages of the transaction.

The person or persons who made the improper payment is financially 
liable to the government in the first incidence.  62 Comp. Gen 476, 
479 (1983).  In addition, the person in whose name the account is 
officially held at the time the erroneous payment is made is also 
liable for the loss.  Id.  In the instant case, this would include 
Capt. Goodman, the disbursing officer acting as the cashier, and Major 
Philip D. Weinberg, Accounting and Finance Officer at 26 AFS, as the 
official holder of the account.  

TSgt. Pearson, is not subject to liability and relief as a certifying 
officer under 31 U.S.C.  sec.  3528 as that section does not apply to 
disbursements of a military department of the Department of Defense.  
However, Air Force regulation 177-101, paragraph 6-13, imposes 
pecuniary liability on its certifying officers for improper 
certifications.

The other officials involved who had a role in authorizing and 
preparing the voucher in question (Ms. Schneider and SSgt. Burke) are 
not accountable officers for purposes of 31 U.S.C.  sec.  3527 and 3528.
 
Request for Relief and Statute of Limitations

Under 31 U.S.C.  sec.  3527(c), this Office is authorized to relieve an 
accountable officer from liability for an improper payment if it is 
determined that the payment was not the result of bad faith or lack of 
reasonable care by the officer.  This Office has limited authority to 
relieve military certifying officers, although not applicable here.  
Therefore, our authority to grant relief, if requested, is limited to 
Capt. Goodman and Major Weinberg.        

We are required to settle and adjust all accounts within 3 years after 
the date that we receive them.  31 U.S.C.  sec.  3526(c).  We consider the 
3-year statute of limitations prescribed in section 3526(c) to begin 
to run on the date that an account is substantially complete and ready 
for audit.  B-213720, Sept. 26, 1986.  See also 7 GAO-PPM  sec.  8.7.  In 
cases involving improper payments to assignors, where notice of the 
assignment was evident, the 3-year period begins on the date the 
payment is made.  B-226176, May 26, 1987.  Our rationale is that where 
the agency has a copy of the assignment all the documents needed to 
raise a charge in the account are in its possession when the check is 
issued.  Id.  

Air Force personnel were aware of the assignment, and the Air Force 
had in its possession all of the information and documentation 
necessary to determine the impropriety of the payment to SIAC at the 
time of the payment in question.  Thus, the 3-year period specified in 
31 U.S.C.  sec.  3526(c) began on May 9, 1994, the date the check was 
issued to SIAC.  To permit the Air Force to seek relief or to resolve 
the liability of the accountable officers in this matter, as 
appropriate, pursuant to 31 U.S.C.  sec.  3526(g), we are suspending the 
statute of limitations with regard to this matter.                 

/s/Robert P. Murphy
for Comptroller General 
of the United States

1. The 6th year payment was erroneously made entirely to BNL, who, 
upon the Air Force's request, transferred 12.5 percent of the payment 
to BNI.   

2. Ms. Rivera, an employee of Mr. Spampinato's through another 
company, EDILCAT, which provides maintenance on leased housing at San 
Vito Air Station, denies speaking with Ms. Schneider.