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and resuine his present duties, performed said travel on August 3, 1922, in a Government-owned automobile.
The provision in question is contained in the act of June 30, 1914, appropriating for mileage for officers of the Navy and Marine Corps, and is as follows:
That hereafter no mileage shall be paid to any officer where Government transportation is furnished such officer.
The words “Government transportation” as used herein refer to conveyances owned or employed by the Government, but not to transportation furnished on Government transportation requests, 21 Comp. Dec., 690. This provision is applicable to officers of the Navy and Marine Corps, but not to officers of the Army.
The act of June 10, 1922, provides : SEC. 12. That officers of any of the services mentioned in the title of this Act, when traveling under competent orders without troops, shall receive a mileage allowance at the rate of 8 cents per mile, distance to be computed by the shortest usually traveled route and existing laws providing for the issue of transportation requests to officers of the Army traveling under competent orders, and for deduction to be made from mileage accounts when transportation is furnished by the United States, are hereby made applicable to all the services mentioned in the title of this Act, but in cases when orders are given for travel to be performed repeatedly between two or more places in the same vicinity, as determined by the head of the executive department concerned, he may, in his discretion, direct that actual and necessary expenses only be allowed. Actual expenses only shall be paid for travel under orders outside the limits of the United States in North America.
all laws and parts of laws which are inconsistent herewith or in conflict with the provisions hereof are hereby repealed
The existing laws providing for the issue of transportation requests to officers of the Army traveling under competent orders, and for deduction to be made from their mileage accounts when transportation is furnished by the United States, made applicable by section 12 of the act of June 10, 1922, to all the services mentioned in the title of that act, are found in the act of June 12, 1906, 34 Stat., 246, as follows:
That officers who so desire may, upon application to the Quartermaster's Department, be furnished under their orders transportation requests for the entire journey by land, exclusive of sleeping and parlor car accommodations, or by water; and the transportation so furnished shall, if travel was performed under a mileage status, be a charge against the officer's mileage account, to be deducted at the rate of three cents per mile by the paymaster paying the account, and of the amount so deducted there shall be turned over to an authorized officer of the Quartermaster's Department three cents per mile for trangportation furnished, except over any railroad which is a free or fifty per centum land-grant railroad, for the credit of the appropriation for the transportation of the Army and its supplies : And provided further, That when the established route of travel shall, in whole or in part, be over the line of any railroad on which the troops and supplies of the United States are entitled to be transported free of charge, or over any fifty per centum land-grant railroad, officers traveling as herein provided for shall, for the travel over such roads, be furnished with transportation requests, exclusive of sleeping and parlor car accommodations, by the Quartermaster's Department: And provided further, That when transportation is furnished by the Quartermaster's Department, or when the established route of travel is over any of the railroads above specified, there shall be deducted from the officer's mileage account by the paymaster paying the same three cents per mile for the distance for which transportation has been or should have been furnished:
It will be observed that the above act directs that when transportation is furnished by the Quartermaster's Department, the deduction of 3 cents per mile is to be made from the officer's mileage account. This provision has been construed to include transportation furnished by Government conveyances with certain exceptions, as well as by transportation requests, and it has been the practice of the War Department in settling the mileage accounts of officers for travel performed by certain Government conveyances to deduct therefrom the 3 cents per mile for the transportation so furnished as required by said provision. See 20 Comp. Dec., 224; 27 id., 722; 1 Comp. Gen., 555, 629.
The provision, therefore, in the act of June 12, 1906, for the payment of mileage to an officer traveling by Government conveyance with deduction therefrom of 3 cents per mile made applicable to officers of the Navy and Marine Corps by section 12 of the act of June 10, 1922, is in conflict with the provision of the act of June 30, 1914, prohibiting the payment of mileage to officers of the Navy and Marine Corps when furnished transportation by Government conveyance. The act of June 30, 1914, being thus in conflict with the act of June 10, 1922, is repealed by the latter act.
The question presented is answered accordingly.
DAMAGES, LIQUIDATED AND ACTUAL-CONTRACTS. A provision in a contract authorizing the Government to grant additional
time, or, if not satisfied with the progress of the work, to take the work out of the contractor's hands and complete the same, charging the excess costs thereof in either case against the contractor, is not inconsistent with a provision in the same contract providing for the payment by the contractor of liquidated damages for each day's delay in the completion of
the work by the contractor when no extension is granted. Decision by Comptroller General McCarl, September 18, 1922:
The W. M. Sutherland Building & Contracting Co. applied February 8, 1922, for a review of settlement No. 788653, dated September 3, 1921, War Department Division of this office, in which was disallowed its claim for $30,000, the amount withheld on account of liquidated damages in final settlement under its contract dated September 11, 1920, covering the construction of certain storage buildings and other facilities at Ogden Arsenal.
With respect to time of completion and liquidated damages article 1 of the contract provided :
The contractor further agrees to have complete and ready for use the seven storage magazine buildings located along storage track marked “D," on or before December 11, 1920; to have complete and ready for use the additional seven storage magazine buildings located along storage track
marked "C" on or before February 1st, 1921; to have complete and ready for use the seven storage magazine buildings located along storage track marked "B," on or before March 1st, 1921, and to have all storage magazines complete and ready for use by April 1st, 1921.
The contractor further agrees to have complete and ready for use on or before February 1st, 1921, the garage, all other buildings completed in such order as the Constructing Quartermaster may direct, and to have the entire project complete and ready for use on or before June 1st, 1921.
The contractor further agrees, in case of failure to complete any of the above mentioned units of the project within the time above stipulated, to forfeit to the United States Government, as liquidated damages, the sum of two bundred dollars ($200.00) per day for each and every day completion of said units is delayed beyond the time above stipulated.
Delays were reported and liquidated damages deducted as follows: First unit, 7 magazine buildings, 45 days, at $200.
$9,000 Second unit, 7 magazine buildings, 18 days, at $200_
3, 600 Third unit, 7 magazine buildings, 22 days at $200.
4, 400 Other storage buildings, 43 days, at $200
8, 600 Remainder of project, 22 days, at $200--
30,000 It appears that the contractor endeavored in good faith to complete the work in accordance with the schedule stipulated in the contract, and that the delays were through no fault or negligence on its part.
It is contended by claimant that the quoted provisions of the contract, when read in connection with article 8 of the contract, can not be construed to provide for liquidated damages; that in view of the provisions of article 8 of the contract relating to the granting of additional time the action of the Quartermaster General in recommending that damages be deducted only for delays subsequent to June 1, 1921, is an extension of time for completion of any and all units to June 1, 1921; and that the quoted provisions when properly construed in the light of the proposal, instructions to bidders, etc., provide for damages only for delays subsequent to June 1, 1921, the date fixed for final completion.
Article 8 of the contract is a general provision in the printed contract form and reads as follows:
That in case of the failure of said contractor to comply with the stipulations of this contract according to the true intent and meaning thereof (including the requirements for progress of performance to the satisfaction of the officer in charge, or higher authority), then the contracting officer, or his successor, shall have the right to complete the work in such manner as he shall deem best for the interests of the public service, either by day's labor and open market purchase of the necessary materials, or by contract, or both, and to use for that purpose the contractor's materials and appliances on the reservation or at the place where the work is being performed, and any excess of cost resulting from such failure, including any charges on account of delay, shall be charged to the contractor. In event, however, of the granting of additional time for performance, the cost of inspection and other expenses and damages (including any loss or damage to the work under construction by fire or other causes) to the United States from and after the date originally fixed for completion until the work shall have been satisfactorily accomplished, except in so far as the same may arise from delays for which the United States is responsible, as de. termined in each of these particulars by the officer in charge, or higher authority, shall be charged to the contractor and may be deducted from any money due or to become due said contractor from the United States: Provided, That where additional time has been granted the United States shall also have the right to cause the remaining part of the contract, or any portion thereof, to be taken from the contractor whenever, in the opinion of the officer in charge, reasonable and satisfactory progress is not being made, and to secure completion at the expense of the contractor, including charges as above on account of delay.
The contention with reference to this article is in substance that since it provides for actual damages, whereas the provision hereinbefore quoted purports to provide for liquidated damages, the two provisions are inconsistent with each other and can not be construed to provide for liquidated damages. In support of this contention the claimant cites 23 Comp. Dec., 101, 24 id., 170, and Pacific Hardware and Steei Company v. United States, 48 Ct. Cls., 399.
The contract involved in 23 Comp. Dec., 101, contained an article corresponding in all respects to the article hereinbefore quoted, but contained no provision for liquidated damages. It did provide, however, that the stipulations therein made were to be performed in accordance with the circular to bidders, etc., which“ so far as they are applicable” were to form a part of the contract. The question presented was whether a provision for liquidated damages in the printed circular to bidders was applicable to the contract so as to authorize deduction of liquidated damages, and it was held that it was not, upon the ground that since the formal contract itself provided for actual damages for the same kind of delays or delinquencies for which the provision in the circular to bidders authorized liqui. dated damages the two provisions were inconsistent with each other, and therefore the provision in the circular to bidders was inapplicable and that actual damages only could be deducted.
In 24 Comp. Dec., 170, the contract contained a provision for liqui. dated damages with a proviso reading as follows:
That if the actual damage to the Government caused by delay chargeable to the contractor is ascertainable to its satisfaction it may debit the amount thereof against the account of the contractor in lieu of the liquidated damage specified. If it is determined that there was no damage, none will be imposed.
It was held that since the provisions made it necessary to prove actual damages before liquidated damages could be collected, the contract could not be construed as providing for liquidated damages.
The contract involved in the case of the Pacific Hardware and Steel Company v. United States, contained a provision for a deduction from the contract price at the rate of one-tenth of 1 per cent of the total cost of the undelivered material for every day of delay beyond the time fixed for completion, with a proviso that when no damage or inconvenience had been suffered by the Government as a result of the delay the deductions might be waived. It was held in that case that the contract provided for a penalty and not for liqui. dated damages.
The material facts in each of the cases relied upon are essentially different from the facts in the case here presented. Here a specific provision for liquidated damages was written into the formal contract and I think there can be no doubt as to the intention of the parties to provide for liquidated damages. The provision relied upon to defeat the liquidated damage provision is a printed provision in the contract form. If the two provisions can not be so construed that both can be given effect to, the provision which was inserted with reference to this particular contract must prevail over the printed provision which was designed for use in contracts generally. But I do not find the two provisions so inconsistent that effect can not be given to both.
The first provision is to the effect that liquidated damages at the rate of $200 per day shall be deducted for each day's delay in completion of the work covered by the contract, with no provision for waiver or remission. The second provision (article 8) authorizes the Government to take the work out of the contractor's hands in case of the failure of said contractor to comply with the stipulations of the contract according to its true intent and meaning, including the requirement for progress of performance. Clearly this is not in conflict with the liquidated damage provision. Said article 8 further provides that in the event of the granting of additional time for performance the cost of inspection and other expenses and damages to the United States from and after the date originally fixed for completion until the work shall have been satisfactorily accomplished, except in so far as the same may arise from delays for which the United States is responsible as determined in each of these particulars by the officer in charge, or higher authority, shall be charged to the contractor and may be deducted from any money due or to become due said contractor from the United States. Neither is this provision inconsistent with the liquidated damage provision. Read. ing all of the time and damage provisions together, the contract clearly provides for liquidated damages in case the contractor is permitted to continue the work to completion as contemplated under the original contract. It further provides that the Government may, for certain causes, take the work out of the contractor's hands or affirmatively grant additional time for performance, in either of which events the liquidated damage provision would not apply. In the case here presented the work was not taken out of the contractor's hands and no additional time was granted. Therefore, the liquidated damage provision is the exclusive provision for determining the deductions to be made on account of delay in completion of performance and full force and effect thereto can and must be given. With reference to the principles governing the construction of dam