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“There was at the plant 1,000 tons of steel, which the contract
contemplated and which could have been loaded by me at a
$1,000.00 (This item not included in communication of Nov. 18, 1920.) Brick:
" There was also at the plant some 20 carloads of brick which
would approximate 1,000 tons. This could have been loaded
7, 874. 36 (This item not included in communication of Nov. 18, 1920. Itemized statement of Nov. 18, 1920, does not show that any brick were removed and loaded; it shows the removing and loading of 217} tons of limestone and cement which appear to be of the same general character; for removing and loading limestone and cement contractor was paid $1.50 per ton; claim is that it cost $2.00 per ton to remove and load limestone and
cement.) The communication of June 26, 1922, hereinabove set out, is in the form of an affidavit by Donald G. Holmes, listing items totaling $7,874.36, in lieu of a previously stated total, without detail, of $7,707, the amount disallowed in the settlement.
It appears, pursuant to his communication of November 18, 1920, that the contractor claimed and apparently would have been satisfied with an allowance on the following basis: Contractor's estimate of reasonable value of work performed. $2, 185. 27 Amount paid for work performed...--
1, 218 93
966. 34 960.00 492, 00 200.00 50. 00
2, 668, 34 The amount thus stated may be further reduced $300 on the subsequent showing that the difference between the purchase price, etc., and resale price of the conveyor was $192 instead of $492. The corrected total, on the basis of the claim of November 18, 1920, would be $2,368.34. An allowance on this basis would have comprehended a per ton rate of $4.41.
The claims of the contractor were investigated by the salvage board after receipt of the itemized statement of November 18, 1920. The board arrived at a per ton rate on the basis of the data in claimant's communication of November 18, 1920, which corresponded with the per ton rate of $4.41 hereinabove given, after eliminating the $300 difference on conveyor. There appeared no showing as to the $300 difference by reason of the resale price of the conveyor. The result of the investigation of the board was to recommend a rate of $3 per ton for the material actually removed and loaded, if
it was determined that the Government was liable for an increased rate.
The contractor urges that the flat rate of $1.50 per ton originally named was based on the removal of a total estimated quantity of material; that his negotiations were on the basis of removing what he had estimated as 6,000 tons of material and as to which he had originally submitted a sliding scale of rates per ton, ranging from 50 cents to $5, based on the character, condition, and locations of the different classes of material; that such basis of payment, etc., was not acceptable to the War Department; and that he ultimately submitted his bid on a flat-rate basis, which was accepted, as evidenced by the contract of February 25, 1920.
The War Department disapproved the present claim in substance, because article 1 of the contract of February 25, 1920, was interpreted “ to mean that only such material at the Penn Corporation plant would be loaded by the contractor as was directed by an authorized representative of the United States, and therefore that the United States had a right to sell its property on the ground at this plant, allowing the purchaser to arrange and pay for his own loading and transportation expenses, where it was to the advantage of the United States so to do."
It is clear from the record that the quantity of material contemplated to be removed and loaded, described in article 1 of the contract as “the Government property located at the Penn Seaboard Co., New Haven, Connecticut," was greatly in excess of that actually permitted to be removed by the contractor. It is equally clear that the Government in not storing but making sale of the material “ as is” terminated the contract of removal in the interest of the Government, and the primary matter for consideration is whether there results therefrom any claim of the contractor against the United States.
The natural import of that part of article 1 of the contract that
“ The contractor will properly transport & load in the manner directed,” etc., is that he will perform the job in a workmanlike manner and in accordance with directions. The words manner directed” qualify the words “ will properly transport & load," and do not show an intent of controlling the quantity of material to be removed.
It thus appears that the contract provided for removing a quantity of material, estimated by the contractor at 6,000 tons and by the contracting office at between 4,000 and 5,000 tons, and that the contract was terminated in the interests of the Government, the contractor having removed approximately 813 tons and having been paid, in all, the amount of $1,218.93
The contract being terminated in the interest of the Government, following the rule applied in such cases, the contractor may be allowed the fair value of the work performed under the changed conditions, and this may be arrived at by determining a fair per ton rate.
Of interest is the following, set out in tabular form, following the contractor's statement of November 18, 1920, classifying the mato rials actually hauled, the total paid therefor at the contract rate, the rate claimed by the contractor to be a fair rate as to each class of material, and the total fair value on the basis of such rates:
(The slight variations in these totals, from those previously herein given, are due to calculating on the ton rather than the pound basis.)
The contractor's claim, his communication of June 26, 1922, hereinbefore referred to and set out, as to the items of (1) coal and sand, (2) steel, and (3) brick, which he states he was not permitted to remove on account of the termination of the contract, if added to the 813 tons of materials actually hauled, would exceed the estimated tonnage originally in place by upward of 1,000 tons. In addition, the contractor's statement of cost of hauling other and similar, or like materials, indicate that his claim as to such items is erroneous. The items of alleged damage (1) coal and sand, $3,000, (2) steel, $1,000, and (3) brick, $1,000, are too remote and speculative for consideration in the determination of a fair per-ton rate of allowance.
A fair per-ton rate is arrived at on the following basis : : (a) Contractor's statement of fair value of work performed; under
stood to be exclusive of extraordinary costs, such as idle time
$2, 185. 27 (0) One-fifth of the item of $960 may be allowed as an extraordinary cost due to the termination.
192.00 (c) The item of $192, repairing and hauling conveyor, is considered
as a normal contract cost--
termination of contract, may be allowed as an extraordinary
67.00 (e) The item of $50, incidental expenses, is considered as a normal
2, 444. 27
The total of the items thus stated, divided by the 813 tons of material actually removed and loaded, gives a per-ton rate of approximately $3, which accords with the per-ton rate recommended for allowance by the salvage board as and under the conditions hereinbefore set out.
On this basis the amount recommended for allowance is as follows: 813 tons, @ $3 per ton.--
$2, 439.00 Less amount paid as per contract
1, 218. 93 Total...d
1, 220.07 Upon a review of the matter the settlement is modified and $1,220.07 certified due.
TRANSPORTATION CHARGES ON MATERIAL INTENDED FOR NAVAL
VESSELS TO BE SCRAPPED.
The transportation charges on material originally intended for naval vessels
to be scrapped from the place where such material is now located to the place where it is to be used on another vessel or placed in stock are to be paid from the regular appropriation for freight and express charges pertaining to the Navy Department, unless such charges are in excess of the charges which would have been payable if the material had been purchased for stock ca for use on the vessel on which it is now to be used, in which case the amount of the excess is chargeable to the appropriation "Scrap
ping of naval vessels.” Comptrolier General McCarl to the Secretary of the Navy, March 9, 1923:
I have your letter of February 20, 1923, requesting decision whether the appropriation“ Scrapping of naval vessels” is available for payment of freight charges on material originally intended for vessels to be scrapped, but which will now be diverted for use on vessels where construction is to be completed, or for stock.
The appropriation in question is made in the deficiency appropriation act of July 1, 1922, 42 Stat., 774, in the following terms:
Scrapping of naval vessels: For necessary expenses in connection with the care and preservation of ships whose construction has been suspended pending the taking effect of the treaty limiting naval armament, and for expenses of handling, preserving, and inventorying material on hand or in course of fabrication for said vessels, and toward payment of bills of subcontractors for material already completed for the vessels, fiscal year 1923, $5,000,000.
In my decision of January 4, 1923, to you with respect to the use of this appropriation to pay the cost of handling and preparing for shipment to navy yards or private shipyards for use on other vessels of the material now involved it was said and held
It is understood from your submission that in some instances it is not practicable to use or store the material at its present location and that the interests of the Government can best be served by shipping it to some navy yard or private shipyard, where it can be stored or used on vessels there under construction or repair, and the question for determination is whether the expense of handling and preparing for shipment in such cases is a proper charge against the appropriation.
I think it is evident that the word "preserving," as used in the appropriation, means a saving for use, a protection against loss, destruction, or deteriora. tion pending use, rather than a keeping in a state of preservation for an in
definite time. Accordingly, you are advised that when the interests of the Government can best be served by shipping the material to a navy yard or private shipyard the cost of handling and preparation incident to such ship. ment is a proper charge against the appropriation in question.
If the material to be shipped is located at the place where the scrapped vessel was under construction and the freight charges thereon to the place where you now propose to use it are in excess of what it would have cost to transport such material if it had been purchased for the purpose for which you now propose to use it, the amount of the excess would be a proper charge against the appropriation in question. But if the cost of effecting delivery of the material to the vessel to be completed or for stock is no greater than it would have been on material purchased in the first instance for said vessel or for stock, such cost must be borne by the appropriation made in the act of July 1, 1922, 42 Stat., 801, for“ all freight and express charges pertaining to the Navy Department and its bureaus, except the transportation of coal for the Bureau of Supplies and Accounts.” In other words, expenditures from the freight appropriation are not to be increased by reason of transportation made necessary in connection with preserving the material intended for vessels to be scrapped; and on the other hand the appropriation “ Scrapping of naval vessels ” must not be charged with an expenso which but for the scrapping would have been a proper charge against the freight appropriation.
The question submitted is answered accordingly.
ADDITIONAL COMPENSATION-HOLDING TWO CIVILIAN
The right to the $240 additional compensation attaches to the person of the
civilian employee and not to the position held, and an employee holding two positions is therefore not entitled to receive additional compensation
at an aggregate rate of more than $240 per annum. Comptroller General McCarl to E. F. Batchelor, disbursing clerk, Office of
Superintendent of the State, War, and Navy Department Buildings, March 10, 1923:
I have your letter of February 15, 1923, submitting, with request for decision whether payment thereon is authorized, a voucher in favor of Catherine C. Reed for $39.27 as salary and additional compensation for the period from February 1 to 15, 1923, and for one day previously short paid for January, 1923, as a female laborer in the Munitions Building,
It appears that at the time this employee accepted the position as laborer in the Munitions Building, September 27, 1920, she was, and since April 27, 1920, had been, regularly employed as a charwoman in the Treasury Department at a salary of $240 per annum, with additional compensation as allowed by law at the rate of $144 per annum. Sine her employment on September 27, 1920, she has been