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Within the meaning of the act of June 10, 1922, Mr. Morton is an officer “ appointed on and after July 1, 1922," and to him the provision of the law applies that “no service shall be counted for purposes of pay except active commissioned service under a Federal appointment.” As to him, the provision in the act of May 18, 1920, relative to counting service has, in effect, been repealed and does not apply.
You are accordingly advised that you are not authorized to pay to him the 5 per cent increase claimed. He is not entitled to credit for longevity for the 7 months and 25 days of service as a junior engineer, nor to the 1 month and 21 days' service as an enlisted man, and without these credits he has not the necessary three years of service to entitle him to longevity increase in pay.
INFORMAL CONTRACTSDAMAGES FOR BREACH.
Informality in the execution of a contract by the Government does not excuse
performance by the other contracting party, who must assume the risk and
liability for delays not exempted by the agreement. Under an informal contract providing that in case of failure of the contractor
to deliver supplies before a certain date the Government can purchase elsewhere and charge the excess cost to the contractor, upon the failure of the contractor to make the delivery before said date and the purchase by the Government of the supplies in open market the contractor becomes
liable for the excess cost of the supplies so purchased. Decision by Comptroller General McCarl, March 2, 1923:
P. Lenane & Bro., of New York, N. Y., requested January 30, 1923, a review of settlement No. W-158162, dated January 19, 1923, in which the sum of $415.13 was withheld to meet the excess cost of oats which the Government was compelled to purchase in open market because of failure of claimant to make delivery within the time required.
Under the terms of purchase order No. 626–23–1131, dated August 22, 1922, 55,100 pounds of No. 2 white oats, sacked, f. o. b. Montauk, L. I., unit price $0.0163, total value $898.13, were to be shipped by claimant to the quartermaster, Camp Welsh, Montauk, Long Island, N. Y., delivery to be completed September 1, 1922, and in case of failure to meet the requirement as to completion the Government was to exercise the option of either canceling the order or of making purchase elsewhere and charging claimant contractor with the excess cost.
A carload shipment was made from Bryan, Ohio, instead of New York City, as verbally agreed upon, and failed to reach the delivery point by September 1, 1922. The camp quartermaster on September 5, 1922, reported nonarrival and also the exhaustion of the camp's supply of oats, and in compliance with instructions received by him made an open-market purchase of the Sag Harbor Grain Co. of
55,100 pounds of oats of like grade at a total cost of $1,313.26, being $415.13 in excess of the amount indicated in the purchase order, of which contractor was advised.
On account of the prolonged stay of troops at Montauk the camp quartermaster was authorized to purchase an additional quantity of oats, and in compliance therewith, purchase order No. 102, was sent P. Lenane & Bro., September 11, 1922, for delivery at once, but not later than September 20, 1922, f. o. b. Montauk, N. Y., 55,400 pounds of No. 2 white oats, sacked, unit price $0.0185, total value $1,024.90. The shipment under the former contract reached Montauk September 19, 1922, and was accepted as a delivery on purchase order 102. The consignment was inspected and found to contain 55,040 pounds of oats, and the difference in quantity being less than 2 per cent was accepted in accordance with the terms of the purchase as completing the order. At the unit price of $0.0185 the value of the oats amounted to $1,018.24.
The contractor states that as the purchase order of August 22, 1922, was informal he was in no way obligated to make shipment, and the oats being in transit within a reasonable time it was not his fault if the railroad failed to make delivery in time.
It is assumed that the reference to being “ informal ” was to indicate that the agreement was not reduced to writing and signed by the parties at the end thereof as required by section 3744, Revised Statutes. The provision has been supplemented by the act of March 4, 1915, 38 Stat., 1078, which authorizes the Quartermaster General of the Army to prescribe regulations under which all contracts to be performed within 60 days shall be entered into. Paragraph 279, Circular No. 1, Office of the Quartermaster General, January 3, 1922, provides that purchase orders will be executed to cover awards on informal bids where the amount involved does not exceed $25,000 and deliveries are to be completed within 60 days from date of execution of order. The purchase order of August 22, 1922, shows that delivery was to be completed within 11 days, that an informal quotation was obtained from the contractor, and that the amount was less than the maximum prescribed by the circular mentioned above. Notwithstanding informality of execution on the part of the Government, if the other contracting party did actually contract he can be held to performance. 239 U. S., 88. A contractor assumes the risk and liability for all delays not exempted by the agreement.
The contractor was well informed of the fact that time was the essence of the contract of August 22, 1922, as it was upon his promise that shipment would be made from New York City that he received the contract, which did not excuse any delay, but expressly provided that if such did occur the Government could procure the article in open market and charge the contractor with the cost over and above that specified in the contract. The additional expense of $415.13 was necessarily incurred by the Government as a result of the breach of contract by the contractor and the deduction of that amount was properly made from the $1,018.24 due contractor for the oats delivered and accepted September 19, 1922, as a compliance with the terms of purchase order No. 102.
Upon a review of the matter no differences are found and the settlement is sustained.
RETIREMENT DEDUCTIONS INCREASED COMPENSATION FOR CLERK OF QUARTERMASTER CORPS FOR PHILIPPINE SERVICE.
The increased compensation granted under the regulations of the War Depart
ment to civilian clerks of the Quartermaster Corps while serving in the Philippine Islands is an increase in the basic salary of such employee and is subject to the 21 per cent deduction on account of the retirement fund. Overpayments due to lack of percentage deduction on the $200 increase should be refunded and the money returned to the appropriation or appropriations from which the erroneous payments were made, such refund to be accomplished either by requiring the employee to deposit the amount of the overpayment or by pay-roll charge and transfer of
appropriation. Comptroller General McCarl to the Secretary of War, March 2, 1923:
Under date of January 20, 1923, the Commissioner of Pensions transmitted to this office the papers in the case of Sylvester E. Muller, clerk, Quartermaster Corps, Fort Baker, Calif., which were referred to the commissioner by your indorsement of January 12, 1923, for decision of the question whether the increase of salary given to this clerk while serving in the Philippines was subject to deduction on account of the civil-service retirement fund; and if So, what procedure is now necessary to adjust the salary and retirement fund accounts, the deduction not having been made at the time the Philippine salary was paid to the clerk.
It appears that regulations governing the compensation of Quartermaster Corps employees in the Philippines allow a $200 increase in their basic salaries while away from the United States. This increase is not a bonus specially provided and appropriated for in addition to the regular salary, but is an increase in the basic salary itself in the nature of temporary promotion while on Philippine duty, and is subject to the statutory 24 per cent deduction on account of the retirement fund, the same as the original basic salary. In this connection see 26 Comp. Dec., 589; 27 id., 152.
It appears that in this and other like cases retirement-fund deductions were based on the original basic salary and no percentage deduction of the $200 increase was made. Refund of all amounts 80 overpaid to these employees should be had and the money returned to the appropriation or appropriations from which tho erroneous payments were made. The refund may be accomplished either by requiring the employee to deposit the amount of the overpayment or by pay-roll charge and transfer of appropriation.
If the annual estimates upon which the percentage of these salary appropriations were deducted and transferred to the retirement fund included the percentage on increases for Philippine service, the retirement fund has been fully satisfied and is not entitled to any additional amount from that source. If the estimates have not included the percentage on these increases, there should now be transferred from the respective appropriations to the fund the proper percentage omitted from former estimates.
TRAVEL ALLOWANCE-EXTENSION OF ENLISTMENT.
An agreement by an enlisted man of the Navy to extend his enlistment which
has already expired is not such an extension as authorized by the act of August 22, 1912, 37 Stat., 331, and does not confer upon the enlisted man
any right to travel allowance under the act of June 4, 1920, 41 Stat., 836. Decision by Comptroller General McCarl, March 3, 1923:
Chandler Remey Fitts, radioman, third class, United States Navy, applied January 8, 1923, for review of settlement No. N-E-72401, dated December 20, 1922, wherein was allowed $32.75 on account of his claim for travel allowance on extension of enlistment.
It appears that claimant enrolled in the Reserve Force at Provincetown, Mass., July 24, 1918; was released from active duty October 11, 1919; and was transferred to the regular Navy January 6, 1921, to serve the unexpired term of his enrollment. His enlistment expired July 23, 1922, while on duty at the United States naval air base, Pensacola, Fla. He was not discharged at the expiration of his enlistment period, and on July 28 or 29, 1922, was transferred to the U.S. S. Nevada for duty. While serving on such vessel at the navy yard, Norfolk, Va., he extended his enlistment on August 9, 1922, for one year from July 23, 1922.
In this connection claimant states: My enlistment expired at the U. S. N. air base, Pensacola, Fla., July 23, 1922 Was transferred to U. S. S. Nevada for duty July 28, 1922, and soon discovered that my enlistment had expired seventeen days previous. It was then extended for one year on August ninth but the extension papers were dated from July 230, 1922.
The fact that the extension was not, in fact, entered into until after his transfer to the Nevada is corroborated by the report of the Paymaster General of the Navy in the matter of December 9, 1922, wherein he states that “claimant's enlistment was extended for one year from 23 July, 1922, on board the U. S. S. Nevada at Norfolk, Va" As claimant was not transferred to the Nevada until July 28 or 29, 1922, which was after his enlistment period had expired, the extension could not have occurred prior to the date of expiration.
There was allowed in the settlement travel pay from Norfolk, Vary to Provincetown, Mass., 655 miles, at $0.05 per mile, or $32.75. Claimant urges that he was on duty at Pensacola, Fla., on July 23, 1922, the time of the expiration of his enlistment period, and that he was entitled to travel allowance from that place to Provincetown, Mass., instead of from Norfolk, Va.
The extension of enlistments by enlisted men of the Navy is authorized by the act of August 22, 1912, 37 Stat., 331, which provides as follows:
That the term of enlistment of any enlisted man in the Navy may, by his voluntary written agreement, under such regulations as may be prescribed by the Secretary of the Navy with the approval of the President, be extended for a period of either one, two, three, or four full years from the date of expiration of the then existing four-year term of enlistment, and subsequent to said date such enlisted men as extend the term of enlistment as authorized in this section shall be entitled to and shall receive the same pay and allowances in all respects as though regularly discharged and reenlisted immediately upon expiration of their term of enlistment, and such extension shall not operate to deprive them upon discharge at the termination thereof of any right, privilege, or benefit to which they would be entitled at the expiration of a four-year term of enlistment.
Section 6 of the act of June 4, 1920, 41 Stat., 836, provides :
That in case any enlisted man or enrolled man who, since the 11th day of November, 1918, has been or hereafter shall be discharged from any branch or class of the naval service for the purpose of reenlisting in the Navy or Marine Corps or heretofore has extended or hereafter shall extend his eplistment therein, he shall be entitled to
travel pay as authorized in section 3 of the Act
approved February 28, 1919: Section 3 of the act of February 28, 1919, 40 Stat., 1203, provides : That an enlisted man honorably discharged from the Army, Navy, or Marine Corps since November eleventh, nineteen hundred and eighteen, or who may hereafter be honorably discharged, shall receive five cents per mile from the place of his discharge to his actual bona fide home or residence, or original muster into the service, at his option:
Claimant's service in the Navy was for the unexpired term of his enrollment for four years in the Reserve Force. The extension provided for by the above statute is an extension “from the date of expiration of the then existing term of enlistment.” The agreement, in writing, to extend an enlistment under such statute, must be made prior to the expiration of the enlistment, 19 Comp. Dec., 819; 96 MS. Comp. Dec., 646, March 2, 1921.
Claimant's four years of enrolled and enlisted service expired July 23, 1922. The agreement to extend was not made until August 9, 1922, 17 days after the four-year term for which he had enrolled and served in the Naval Reserve Force and the Navy had expired. The agreement to extend was therefore entered into subsequent to the expiration of such four-year period and did not