TITLE:    U.S. Forest Service-Request for relief of liability of Juanita Jimenez, B-303177, October 20, 2004
BNUMBER:  B-303177
DATE:  October 20, 2004
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   B-303177

   October 20, 2004

   Hank Kashdan

   Acting Associate Deputy Chief For Business Operations

   U.S. Forest Service

   Subject: U.S. Forest Service-Request for relief of liability of Juanita
Jimenez

   Dear Mr. Kashdan:

   This responds to your letter dated May 13, 2004, requesting a
determination of liability of Juanita Jimenez, a certifying officer, for
duplicate payments totaling $5,631.85.   You also requested that we
relieve the certifying officer of any liability if the circumstances of
the erroneous payment so warrant. For the reasons discussed below, we find
that the certifying officer is liable for the duplicate payments; we are
unable, however, to grant relief from that liability.

   Background

   In September 2001, the Gifford Pinchot National Forest (GPNF) experienced
a rare forest fire within its boundaries.  The Forest Service contracted
with Evergreen Bus Service (Evergreen) for transportation in connection
with its firefighting operations.  Between September 18 and 24, 2001,
Evergreen's bus drivers and Forest Service employees working at the fire
site prepared four invoices for payment of Evergreen, totaling $5,631.85,
and transmitted the four invoices to the fiscal management office at GPNF
headquarters for certification of payment.  May 13 request, attachments. 
Each of the four invoices was prepared on an Agriculture Department form,
"Optional Form 286," entitled "Emergency Equipment - Use Invoice," rather
than on Evergreen's own invoice stock.  Nevertheless, each of the four
invoices was signed by an Evergreen representative, and Forest Service
staff working at the fire site transmitted them to GPNF's fiscal
management office for payment to Evergreen.  The certifying officer
manually certified the four invoices for payment on September 25, 2001.

   On September 26, 2001, GPNF headquarters received from Evergreen four
additional invoices.[2]  Unlike the earlier four invoices, Evergreen
prepared these four invoices on its own invoice stock and submitted them
directly to GPNF's fiscal management office, not through Forest Service
staff working at the fire site.  Attached to two of these invoices were
carbon copies of two of the earlier "Emergency Equipment - Use Invoices;"
printed at the bottom of the carbons is the word "contractor," indicating
that the carbon is the contractor's copy of that form.  See financial
documents.  Attached to the other two of these invoices were photocopies
of the other two earlier "Emergency Equipment - Use Invoices."  Id.  These
invoices were for the exact amounts and for the same services as the
payments that Ms. Jimenez certified on September 25, 2001.  July 30 memo
at 2.  The certifying officer manually certified one of these four
invoices on September 27, 2001.  Chronology at 1.  The certifying officer
manually certified the remaining three of these invoices on October 5,
2001.  Id. 

   According to your letter, in October 2001 GPNF discovered that the four
invoices submitted on September 26, which Ms. Jimenez certified on
September 27 and

   October 5 were for services for which GPNF had already paid Evergreen. 
GPNF sought repayment from Evergreen.  May 13 request at 1; Chronology at
1-2; May 29 memo at 1.  GPNF officials contacted the National Finance
Center[3] in a failed effort to stop payment on the checks and also made
numerous phone calls to Evergreen to resolve the improper payments. 
Chronology at 1.  Additionally, GPNF sent two bills to Evergreen for
repayment.  On April 12, 2002, Evergreen forwarded a check for the full
amount of the duplicate payments, $5,631.85; however, Evergreen did not
have sufficient funds to cover the amount of the check. Id.

   Evergreen filed for Chapter 11 bankruptcy protection in May 2002, and
informed GPNF that it would resume paying its debts when the bankruptcy
court so ordered.  May 13 request at 2; May 29 memo at 1.  GPNF consulted
with the Office of General Counsel of the Department of Agriculture to
determine the best manner to seek collection of the duplicate payment from
Evergreen.  In October 2002, the Office of General Counsel advised GPNF to
cease collection efforts due to the bankruptcy proceedings.  May 29 memo
at 2; Chronology at 2. 

   The Forest Service reviewed the actions of the certifying officer leading
to the improper duplicate payment.  July 30 memo at 2; May 13 request at
1.  The Forest Service determined that the duplicate payments were made in
good faith and there was no intent to defraud the government.  May 13
request at 1.  Additionally, after this incident, GPNF instituted new
internal controls on fire payments, including better training of voucher
examiners and certifying officers, and maintenance of an internal log of
payments and individual folders for each contract, both of which the
voucher examiner and the certifying officer must review before the
certifying officer can certify payment.  Id., May 29 memo at 2; Fuller
notes at 1.

   Analysis

   You first asked whether the certifying officer is liable for the duplicate
payments discovered in October 2001.  Under 31 U.S.C. S 3528(a), a
certifying officer must repay any "illegal, improper, or incorrect"
payment resulting from his or her inaccurate certification. 
31A U.S.C.A SA 3528(a)(4).  A certifying officer becomes liable the moment
that an improper payment is made.  See 54 Comp. Gen. 112, 114 (1974). 
Here, the certifying officer, on September 27 and October 5, 2001,
certified four payments to Evergreen that were duplicates of payments that
the Forest Service had previously made on

   September 25, 2001, and to which Evergreen was not entitled.  See May 13
request at 1.  The payments that the certifying officer certified on
September 27 and October 5 were to the same vendor, in the same amounts,
and for the same services as the payments that she certified on September
25.  Because the vendor had already been paid for those services, the
September 27 and October 5 payments were improper.  The certifying officer
certified improper payments and became liable for the repayment of these
improper payments on the dates the payments were actually made, September
27, 2001, and October 5, 2001.

   You also asked that we relieve the certifying officer of her liability. 
Section 3528(b) of Title 31 of the U.S. Code permits us to grant relief
from liability in two situations.  First, our office may relieve liability
if the certifying officer certified the payment based on official records
and the certifying officer did not know, "and by reasonable diligence and
inquiry" could not have known, the correct information.  31A U.S.C.
SA 3528(b)(1)(A).  Second, our office may relieve liability if the
following three conditions are met:  (1) the obligation was incurred in
good faith; (2) no law specifically prohibited the payment; and (3) the
United States Government received value for the payments.  31A U.S.C.
SA 3528(b)(1)(B).  We find that the circumstances leading to the duplicate
payments to Evergreen do not meet the criteria allowing us to relieve the
certifying officer of liability for the duplicate payments. 

   Considering the first standard for relief in section 3528(b)(1)(A), we
cannot find that the certifying officer, in certifying the September 27
and October 5 payments, acted with reasonable "diligence and inquiry."  If
she had done so, she would have learned that, just days before, she had
certified payments to Evergreen for the same services and in the same
amounts.  The standard of reasonable diligence and inquiry requires an
examination of the "practical conditions prevailing at the time of
certification, the sufficiency of the administrative procedures protecting
the interest of the Government, and the apparency of the error."  55 Comp.
Gen. 297, 299 (Sept. 30, 1975).  Here, the error was clearly apparent on
the face of the invoices that the certifying officer was asked to certify.

   In this case, the certifying officer, shortly after having certified
payment to Evergreen on the basis of the four USDA "Emergency Equipment -
Use Invoices," certified manually, on the basis of four invoices submitted
by Evergreen on Evergreen's own invoice stock, four additional payments to
Evergreen in the exact amounts and for the same services she had
previously certified.  The certifying officer manually certified one of
these duplicate payments just two days after she had already certified
payments to Evergreen.  Even if the name of the vendor, the services
rendered, the dates of their services, and the amounts on the Evergreen
invoices had not raised questions, the fact that Evergreen had attached to
its invoices carbon copies or photocopies of the USDA "Emergency Equipment
- Use Invoices," should have led the certifying officer to question the
validity of the payment.  The attached "Emergency Equipment - Use
Invoices" were either carbon copies or photocopies; the two carbon copies
are clearly identified as "contractor" copies.  At the very least, we
would expect that a certifying officer exerting the requisite amount of
care and diligence would have questioned the payments based upon the
attached carbon copies and photocopies.  We would not dispute that receipt
of invoices from Evergreen on Evergreen invoice stock would indicate to
the certifying officer that Evergreen was seeking payment for services
rendered.  Nevertheless, the attached carbon copies of the "Emergency
Equipment - Use Invoices," labeled "contractor" copy, and the photocopies
of the "Emergency Equipment - Use Invoices" should have alerted the
certifying officer to question the payments, particularly since she had
certified payments just days before on the basis of the originals of those
"Emergency Equipment - Use Invoices."  The certifying officer certified
one of the duplicate payments only two days after certifying the first
payment and certified the other three duplicate payments ten days after
certifying the first payment.  Therefore, we are unable to grant relief
under section 3528(b)(1)(A).

   We also are unable to grant relief of liability on the basis of the second
standard for relief in section 3528(b)(1)(B).  We do not question the
determination that the certifying officer was acting in good faith when
she certified the duplicate payments to Evergreen.  Nor do we question the
legality of making a payment for bus services rendered during a forest
fire.  However, in order to grant relief, we must find that the government
received some value for the payments.  Clearly, Evergreen had provided no
additional bus services beyond those that GPNF had already paid for on
September 25, 2001.  Accordingly, we are unable to grant relief pursuant
to section 3528(b)(1)(B).

   We have considered the arguments raised in your May 13 request and your
July 30 response to our July 22 letter.  First, you ask that we grant
relief because "the fire payment workload was overwhelming," and the
certifying officer and the voucher examiner "received minimal training,
due to the heavy year-end workload, the fire situation, and the
inexperience of detailed supervisors."  May 13 request at 1.  We cannot
grant relief based upon these factors.  Heavy workload is not a
consideration for relieving a certifying officer from liability for an
improper payment.  B-147747,

   Dec. 28, 1961.  A certifying officer has a high degree of responsibility
and such authority is not perfunctory.  55 Comp. Gen. 297, 299
(Sept.A 30,A 1975).   As the statutory standards for waiver reflect, the
responsibility of certification must be respected; otherwise it would
afford little protection of the United States against improper payments.
Id.  As her signature on her Designation of Approving Officer form
evidences, the certifying officer understood the responsibility she had
undertaken when she became a certifying officer.  See Designation form. 
In taking that responsibility, the certifying officer agreed to exert
reasonable care and diligence when making her certification. 

   Second, you raised the argument that we should relieve the certifying
officer from liability because Evergreen submitted a payment via business
check and that it was not the certifying officer's fault that this check
could not be cashed due to insufficient funds.  May 29 memo at 2.  This
argument, however, fails to take into account that the reason Evergreen
submitted the check was to repay the United States for amounts that the
Forest Service should not have paid Evergreen in the first place, and
would not have paid Evergreen but for the certifying officer's error.  The
United States suffered a loss of funds because the certifying officer
acted without the requisite level of care.  The fact that Evergreen wrote
a dishonored check does not absolve the certifying officer's liability for
the original improper payment and resulting loss of government funds. 

   Finally, you indicated that GPNF maintained insufficient policies and
procedures at the time of the improper payment that would have prevented
the certification of the duplicate payments at issue here.  You
specifically noted that, since this incident, GPNF has instituted a log
system.  See May 29 memo at 2; see also July 30 memo at 3.  While we agree
that a log may afford extra protection from duplicate payments in the
future, the remedial procedures cannot relieve the certifying officer from
acting with the requisite care and diligence under the established
procedures at the time of this incident.  Even without the new policies
and procedure, if the certifying officer acted with reasonable care and
diligence, she would not have certified the improper payment.

   Conclusion

   We find that the circumstances resulting in the overpayment of $5,631.85
to Evergreen for services rendered in September 2001 do not meet either of
the criteria in section 3528(b)(1)(A) or (B).  Accordingly, we cannot
relieve Ms. Jimenez from liability for the resulting improper payment
discovered in October 2001. 

   Sincerely,

   /signed/

   Susan A. Poling

   Managing Associate General Counsel  

   cc:  Juanita Jimenez

   DIGEST

   We deny relief for a Forest Service certifying officer who certified
duplicate payments in the amount of $5,631.85 to a vendor for emergency
fire equipment during a fire emergency in Gifford Pinchot National
Forest.  We find that the certifying officer failed to act with the
requisite amount of care and due diligence when she certified payments
based upon carbon copies of original invoices that she had previously
certified for payment.

   ------------------------

   [1] Our office received your request on May 13, 2004.  Letter from Hank
Kashdan, Acting Associate Deputy Chief For Business Operations, U.S.
Forest Service, to Thomas H. Armstrong, Assistant General Counsel for
Appropriations Law, GAO, May 13, 2004 (May 13 request).  The May 13
request included the following attachments:  a memorandum to the Regional
Forester dated May 29, 2003 (May 29 memo); typed notes from Susan Fuller,
Financial Manager, dated December 23, 2003 (Fuller notes); a document
entitled Chronology of Events (Chronology); and financial documents used
in the certification of the payments in question (financial documents).  
We requested additional information on July 22, 2004.  Letter from Susan
A. Poling, Managing Associate General Counsel, GAO, to Hank Kashdan, July 
22, 2004 (July 22 letter).  In response, the Forest Service submitted a
copy of a memorandum from Susan Fuller, Acting Forest Administrative
Officer, to Peter Gilmour, WO and J. Woodland, July 30, 2004 (July 30
memo), and a copy of a form entitled, "FFIS Security Access Request Form,"
which Juanita Jimenez signed in acknowledgment of her certifying officer
statutory duties (Designation form). 

   [2] It is not clear why Evergreen submitted the additional invoices. 
Evergreen may have been unaware that the certifying officer had already
certified payments to Evergreen and that payment checks were forthcoming.

   [3] The National Finance Center performs certain accounting functions for
the Forest Service.