Item No.-Con. 6 a- Chargeable to Government Contract Chargeable to du Pont Total vacation allowance. b. Total vacation allowance. d-- Prorated according to length of service rendered Total vacation allowance. 7 a-- d. Prorated according to length of service rendered 8 a, b, c, d. The charge for vacation allowance will have The voucher involved covers the amount claimed by the contractor as the Government's proportionate share of the expense incurred for vacation allowances to five of its employees who, during a part or all of the calendar year in which such vacations were granted, were engaged by the contractor in the performance of the work covered by cost-plus-a-fixed-fee contract No. W-ORD-458. In support thereof, there is attached to the said voucher pertinent information relative to the employment record of each of the said employees upon the basis of which the vacation pay is prorated in accordance with Items Nos. 1, 3, 6b, 6d, and 7b of the above-quoted schedule of conditions. As stated in your letter, supra, the matter of the Government's liability for vacation allowances to the contractor's employees was considered in my decision of February 17, 1942, to the Secretary of War, wherein it was held that, while under the terms of the contract here involved it is the obligation of the Government to pay its share of such expense, the prorating thereof is required to be computed "on the basis of length of service on the [Government] project. That is, the Government is to be charged with only "the proportionate share of the vacation salary earned while there employed." The question now presented is as to the propriety of the contractor's proposed method of prorating such charges which, in substance, is based on the number of days' service rendered by its employees on its private work and the Government work, respectively, during the calendar year in which the vacation is granted, and, in the event of termination of services during the said calendar year, the work upon which the employee was last engaged is charged with the remaining number of days in the year. The employees covered by the voucher are classified as wage roll employees paid on an hourly basis as distinguished from wage roll employees paid on a monthly basis and from salary roll employees. So far as concerns the class of employee here involved, the contractor's policy with respect to the eligibility requirements for a vacation, as set forth under Item 201, Section 2 of its Service Manual, a copy of which was forwarded to this office for use in the audit of payments under this contract, is, in pertinent part, as follows: There are two separate and distinct eligibility requirements and an employe in order to be eligible for a vacation must have fulfilled both requirements. The first is that the employe must have at least one year of Continuous Service (See Service Requirement, Item 202) and the second is that he must not have been absent during the twelve months preceding his vacation except under certain specified conditions (See Attendance Requirement, Item 203). Item 202 of the said Service Manual provides, in part, as follows: SERVICE REQUIREMENT FOR ELIGIBILITY ONE YEAR OF CONTINUOUS SERVICE NECESSARY The Plan states that an employee in order to be eligible for a vacation must first have completed at least one year of continuous service with E. I. du Pont de Nemours & Company and/or Subsidiary Companies, as defined by the Continuity of Service Rules. Item 203 of the said Service Manual contains the following provisions: ATTENDANCE REQUIREMENT FOR ELIGIBILITY NO UNEXCUSED ABSENCES DURING THE PRECEDING TWELVE MONTHS The second eligibility requirement is that the employe must not have been absent from work during the twelve months immediately preceding his vacation except under one or more of the following conditions: Listed thereunder are the conditions under which absence from work will be excused and examples of the manner in which the eligibility date for vacations is to be computed in the event such absences exceed the limitations thereon. The Service Manual further provides under Item 502 that "In case of lay-off on account of lack of work, an employe who has not had a vacation in the current calendar year and is otherwise eligible will be granted a vacation allowance equivalent to one week's vacation pay if laid off prior to May 1, or to two weeks' vacation pay if laid off on or after May 1." Item 205 (3) of the Manual provides that employees inducted into military service who are eligible for and have not taken their vacations during the current calendar year will be granted pay in lieu thereof in accordance with the vacation allowance they would have received had they been laid off on account of lack of work as of the day of induction into such service. It thus appears to be the policy of the contractor to allow a vàcation with pay to its hourly wage roll employees after they have completed at least one year's continuous service and to allow a`vacation during each succeeding calendar year provided there have been no unexcused absences during the twelve months immediately preceding such vacation. The vacation allowances are thus shown to be a form of additional compensation to the employees by reason of their continuous service and uninterrupted attendance for a period of at least twelve months prior to such vacations. In view thereof, there would appear to be no proper basis for the distribution of the cost of vacation allowances on the basis of service during the calendar year in which the vacation is taken with the unexpired portion of the year to be charged to the party for whom services were last rendered in the event of termination of services, but, rather, it would appear that the prorating thereof should be on the same basis as the vacations are earned. That is, the cost should be prorated according to the number of days the employee was engaged on the contractor's private work and the number of days on the Government work during the twelve months immediately preceding the vacation or the allowance in lieu thereof. Further, with reference to the statement that the contractor's proposed method "represents the most feasible and fair way of handling the prorating of amounts", it is to be noted in this connection that the application thereof would result in the Government being required to absorb part of the cost of vacation allowances granted to those employees who, after taking their vacations, were transferred to the Government work during the same calendar year. Since, under the terms of the contract involved, the liability of the Government is limited to the costs and expenses directly attributable to the work thereunder, and since it is evident that the cost of vacation allowances granted prior thereto bears no relation to the performance of the contract work and, accordingly, may not be considered as due thereto, the proposed procedure would serve to impose upon the Government the payment of amounts in excess of that provided for in the contract. Moreover, since the flow of employees presumably has been and will continue to be from the contractor's private work to the Government work, it is not clear that the charging of the unexpired portion of the calendar year, in the event of termination of services, to the work upon which the employee was last engaged, represents a “fair” method of proration. In any event, since, for the reason heretofore stated, the adoption of the proposed method of prorating the cost of vacation allowances would result in a deviation from the terms of the contract and impose additional costs upon the Government, without any apparent compensating benefit therefor, it may not be approved. Under the method hereinabove prescribed for the prorating of the cost of vacation allowances, based on the employee's service during the twelve months immediately preceding the vacation, as applied to the employees for whose vacations reimbursement is claimed on the voucher involved, the Government's liability for the full amount thereof as to Cyrus P. Warren, Clifford N. Brinson and Henry L. Gilliatt appears correct since each is shown to have been employed under the contract here involved for the twelve months immediately prior to receiving a vacation or a vacation allowance in lieu thereof. However, as to Theodore C. Grimmett, who was transferred from the contractor's private work to the contract operations on April 7, 1941, and received a vacation beginning June 16, 1941, the Government's liability is on the basis of 70 days, covering the period from April 7 to June 15, 1941, inclusive, instead of 269 days as charged. Also, with reference to William F. Murray, transferred from the contractor's private work to the contract work on March 1, 1941, and whose vacation commenced on June 14, 1941, the Government's liability is on the basis of 105 days instead of 306 days as charged. Accordingly, the voucher, together with accompanying papers, is returned with the advice that payment thereon, and under the various circumstances set forth in the schedule of conditions, is not authorized otherwise than on the basis herein indicated. (B-28864) COMPENSATION-DOUBLE-EMPLOYMENT ON BOTH AN ANNUAL SALARY AND A FEE BASIS The employment by one Government agency of a medical adviser on an annual salary basis who is also employed, whether by contract or otherwise, by another Government agency as a consultant on a fee basis does not constitute a violation of the restriction against the holding of more than one office contained in the act of July 31, 1894, as amended, (15 Comp Gen. 828, modified), nor does such employment constitute a violation of the dual compensation restrictions of section 1765, Revised Statutes, and the act of May 16, 1916, as amended. Comptroller General Warren to the Administrator of Veterans' Affairs, October 3, 1942: I have your letter of September 11, 1942, as follows: By letter dated August 22, 1939 the employment of Dr. Charles F. Jump as a Consultant (Eye, Ear, Nose and Throat) on a fee basis not to exceed $300.00 per annum, was authorized, effective August 2, 1939. On April 23, 1941 Dr. Jump informed the Manager of the Veterans Administration Facility, Fort Harrison, Montana, that on October 24, 1940 he entered on full time duty with the Selective Service System as State Medical Adviser at a salary of $4,600.00 per annum. The Manager immediately addressed a lettergram to Central Office inquiring whether payment could be made to Dr. Jump, inasmuch as it would appear that he would then be receiving income from two Government Departments in excess of $2,000.00 per annum. The attached copy of the Central Office reply to this inquiry dated May 2, 1941 shows that the Fort Harrison Facility was informed that it might continue to utilize the physician's services under his fee basis contract. Based on the information contained in the letter of May 2, 1941 the Facility continued to utilize the services of Dr. Jump and to authorize payment for the same. By communication dated April 13, 1942, the National Headquarters Selective Service System, Washington, D. C., brought the case of Dr. Jump to the attention of this Administration, particular reference being made to the syllabus of 15 C. G. 828 reading: "The receipt of fees for services rendered a Government agency while employed by another such agency on a per annum basis is prohibited by section 2 of the act of July 31, 1894, 28 Stat. 205, but said statute is not for application to reimbursement of traveling expenses incurred on behalf of the Government while so employed." In view of the foregoing, by letter of April 30, 1942, Dr. Jump was informed that his services as Consultant (Eye, Ear, Nose and Throat) on a fee basis, were discontinued effective at the close of business October 23, 1940. The Fort Harrison Facility was instructed by letter dated June 25, 1942 to collect the fees paid Dr. Jump by the Administration since October 24, 1940, the date on which he entered on duty with the Selective Service System as State Medical Adviser. The physician accordingly refunded all fees paid to him by the Administration subsequent to October 24, 1940. The refund amounted to $274.50, and was deposited by G. F. Allen, Chief Disbursing Officer, Symbol 891-824, under Certificate of Deposit No. 18-68 dated July 10, 1942. The Appropriation Salaries and Expenses VA-1941, 3610100.001, was credited with the sum of $124.50, and the Appropriation Salaries and Expenses VA-1942, 3620100.001, was credited with the sum of $150. On July 10, 1942 the remitter protested payment of the amount of $274.50 and requested that same be submitted to the General Accounting Office for opinion. The protest herewith was supplemented by a telephone call on July 17, 1942, copy of the report thereof being attached hereto. Protest is accordingly forwarded for your consideration. This case differs from that of Dr. I. I. Hirschman on which you rendered Decision No. B-27457 under date of August 15, 1942, in that Dr. Hirschman was a consultant at a salary at the rate of $1,000.00 per annum when he rendered service to Rosalie V. Hull on a fee basis; whereas Dr. Jump was employed full time by the Selective Service System Draft Board at a salary of $4,600.00 per annum when he rendered service for the Fort Harrison Facility on a fee basis. Section 2 of the act of July 31, 1894, 28 Stat. 205, as amended (5 U. S. Code 62), provides as follows (quoting from the Code): Holding other lucrative office. No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars shall be appointed to or hold any other office to which compensation is attached unless specially authorized thereto by law; but this shall not apply to retired officers of the Army or Navy whenever they may be elected to public office or whenever the President shall appoint them to office by and with the advice and consent of the Senate. Retired enlisted men of the Army, Navy, Marine Corps, or Coast Guard retired for any cause, and retired officers of the Army, Navy, Marine Corps, or Coast Guard who have been retired for injuries received in battle or for injuries or incapacity incurred in line of duty shall not, within the meaning of this section, be construed to hold or to have held an office during such retirement. (July 31, 1894, c. 174, § 2, 28 Stat. 205; May 31, 1924, c. 214, 43 Stat. 245.) The engaging of the services of a physician as a consultant by contract or otherwise on a fee basis, for services actually performed is not an appointment to an "office to which compensation is attached," within the meaning of the above-quoted statute. See 1 Comp. Dec. 286; 2 id. 271; id. 467; 14 Comp. Gen. 68; 16 id. 909, 910; and decision of August 15, 1942, B-27457, to which you call attention in the concluding paragraph of your letter. Neither would payments by the Veterans' Administration of fees to a doctor during the time he was employed as a medical adviser on |