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was made in the sum of $19.50 instead of $17, a difference of $2.50. On request 3122145, June 6, 1921, payment was made for one stateroom in the sum of $2 instead of $1, the lowest rate, being a difference of $1 or a total difference on the two requests of $3.50, which was disallowed.
The claimant contends that it is entitled to the amount disallowed for the reason that it furnished the traveler with the lowest rate stateroom available at the time the transportation request was presented; that there are a limited number of $1 rooms on its steamers and these rooms were invariably reserved and paid for several days in advance of the sailing date of the steamer, and as Government transportation requests are as a rule not presented until the date of sailing, it frequently happens that the lowest rate room available at that time is one at a higher price than $1, and it has been its custom for many years back to honor the requests for the lowest rate room available; and that if this deduction stands it will be compelled to refuse to honor any Government transportation requests for staterooms over $1 unless the traveler pays the difference, irrespective of what position he holds in the Government service, except, of course, when the requests caiì for a specified price room; and that such instructions have been issued pending receipt of decision on this application.
This transportation was rendered upon presentation of request on the regular form provided therefor by the Government, which has been prepared with the utmost care to protect the interests of both the Government and the carrier. These requests call for transportation“ at lowest rate," and it is the intention of the Government that the transportation be furnished at the lowest rate with accommodations for which said rate applies, unless the request specifically calls for accommodations entitling the carrier to a higher rate. The money value of the request is measured by the terms of the request, and there is no reason why a ticket agent should furnish a greater service than is called for any more than he should furnish transportation to a traveler of greater value than the money paid therefor. The request on its face specifically calls attention to instructions on the reverse thereof; and instruction 3 thereon provides that transportation furnished must not be in excess of that called for on the face of the request, unless the difference is collected from the traveler, and that the United States Government will not be responsible for any excess cost arising through the violation of these instructions. It appears that the carrier has issued instructions in conformity with the Government instructions, and therefore there should be no further difficulty in this respect.
989449 012- -----6
The allowance in this case having been made in accordance with the request was correct, and the settlement is approved.
DELAY IN COMPLETION OF INFORMAL CONTRACTS.
Delays in completion of informal contracts of the Quartermaster General, or
the Quartermaster Corps, involving less than $500, or in delivery tbereunder, do not necessitate a certificate as to the money damage resulting from such delay, but there should be attached to the voucher a statement of the facts and reason for acceptance, notwithstanding the delay and how
the need at the time was met. (See 2 Comp. Gen., 385.) Comptroller General McCarl to the Secretary of War, July 27, 1922.
I have your letter of June 3, 1922, requesting decision whether where formal contracts are not required and purchase orders are given for supplies or services which are not completed within a specified time limit there must be furnished a certificate of no damage by reason of delay in completion.
I understand, from the correspondence submitted in connection with the request for decision, that it relates to cases involving less than $500 procurements.
The act of March 4, 1915, 38 Stat., 1078, requires that whenever contracts are made by the Quartermaster General or the Quartermaster Corps which are not to be performed within 60 days and are in excess of $500 in amount “such contracts shall be reduced to writing and signed by the contracting parties.
The affirmative direction of the enactment that contracts shall be reduced to writing where they are above the period of 60 days for performance or in excess of the specified amount of $500, has been construed as an authority for procurements in lesser periods or involving lesser amounts not to be in writing. The intent of the enactment, as thus construed, being that the formality of written contracts was not required, it is obvious that if all the conditions and terms attending written contracts were to be attached to procurements of less than $500 practically the same administrative conditions would result as if the contracts were written, and it would be less complicated and more practical administratively to have them written. While this office believes that a written show. ing of an agreement is desired in all cases, yet the practicability of the situation appears to have been determined by the enactment.
If a formal contract is not made because of the time within which the purchase matter is required to be completed or delivered, then if it is not completed within that time it is a question whether the proper administrative action should not be to terminate its arrangement and procure elsewhere rather than to allow the time to run indefinitely. It is this condition of allowing completion afterwards that raises questions going even to whether there was real justification in the first instance for making the purchase as made, but considering the matter wholly with reference to the amount involved, to wit, less than $500, it does not seem possible that such an expenditure would involve any such question of damage by reason of failure to complete within a specified time as to be either material or enforceable without an expressed stipulation thereon.
I accordingly conclude that with respect to informal procurements involving less than $500, Do certification as to a money damage is required if completion or delivery be not within the time that may have been stipulated, but a proper record requires that there be attached to the voucher a statement of the facts of the delay and the reason for acceptance notwithstanding the time stipulation and how the need at that time was met.
MILEAGE-NOTARY PUBLIC TAKING DEPOSITION FOR COURT.
Articles 22 and 23 of the Articles of War, as amended by the act of August
29, 1916, 39 Stat. 654, contemplate that where the deposition of a witness is to be taken for use in a court-martial proceeding the witness shall appear before the officer designated to take the deposition, and no mileage or other allowance for travel of the officer to the witness is provided for
or authorized by law. Comptroller General McCarlto Col. R. S. Smith, United States Army, July 28, 1922.
I have your letter of June 27, 1922, requesting decision whether you are authorized to pay vouchers of S. P. Woods, a notary public at North Kohala, Hawaii, for his fee and mileage in taking the deposition of a witness at Kealakekua, Hawaii, for use in a court martial proceeding at Honolulu.
The notary charges a fee of $2 for taking the deposition and mileage at the rate of 20 cents per mile traveling from North Kohala to Kealakekua and return, amounting to $32. The fee of $2 appears to be in accordance with the Hawaiian fee bill. There appears to be no authority for payment of mileage in this connection.
Article 22 of the Articles of War as amended by the act of August 29, 1916, 39 Stat., 654, provides that the judge advocate of a court-martial shall have power to issue like process to compel witnesses to appear and testify which a United States court having a criminal jurisdiction may lawfully issue.
Article 23 provides punishment for a person subpænaed to appear before an officer, military or civil, designated to take a deposition to be read in evidence before a military court who neglects or refuses to so appear.
These articles contemplate that the witness whose deposition is to be taken shall appear before the officer designated to take the same. Travel of the officer to the witness was not contemplated and no mileage or other allowance for such travel appears to have been provided.
You are authorized to pay the voucher for the fee of $2, but you. are not authorized to pay the voucher for $32 mileage.
LEASES-RENEWAL AT INCREASED RENTALS.
The option given the Government in a lease to renew it from year to year for a
specified period is exercised by continued occupancy of the premises without any formal notice from the Government, and during such occupancy, for the maximum period covered by the right of renewal, any new or supplemental agreement or lease providing for increased rental is null and void, notwithstanding that such agreement may have been preceded by formal notice from the lessor to vacate the premises, given in accordance with the
terms of the lease. Decision by Comptroller General McCarl, July 31, 1922.
The Secretary of War applied June 27, 1922, for a review of settlement No. W71281, dated May 18, 1922, War Department division of this office, in which credit was disallowed for payments aggregating $474.99, made by Rufus W. Putnam, major, Corps of Engineers, to James W. Ellsworth, being a part of the amount paid on vouchers Nos. 112, July, 1921, 112, August, 1921, and 144, September, 1921, on account of rent at the rate of $7,000 per annum for the twelfth floor of the Ellsworth Building, Chicago, Ill., for the period from July 1, 1921, to September 30, 1921.
It appears that the United States took possession of the premises in question under a lease dated August 2, 1919, effective from September 1, 1919. Said lease covered the period of one year with a provision for renewal at the option of the lessee“ for such period and as often as said lessee may elect, so as to give said lessee continuous possession of said property, not extending, however, beyond August 31, 1924.” The rent stipulated in said lease was at the rate of $5,100 per year, payable $425 per month in arrears.
The premises have been occupied by the Government for the purpose for which leased under the lease of August 2, 1919, continuously since September 1, 1919, to the present time. But relying upon the provision of the lease of August 2, 1919, to the effect that said lease may be terminated at any time by either party upon giving 60 days' written notice to that effect to the other party, the lessor on June 10, 1920, addressed a letter to Col. W. V. Judson, United States Engineer Corps, 1200 Ellsworth Building, Chicago, mi., which, after referring to the lease and the provisions therein for termination, contained the following paragraph:
You will please accept this notice that upon August 31, 1920, said James W. Ellsworth hereby elects to terminate this lease.
Assuming that this notice completely and effectively terminated all rights and obligations under the lease of August 2, 1919, the district engineer on August 26, 1920, entered into a new lease agreement with the owner purporting to lease the same premises for one year from September 1, 1920, under the same terms and conditions, except that the option as to renewal was extended to August 31, 1925, and the rent stipulated was at the rate of $7,000 per annum.
The disallowances now under consideration represent the difference between rent at the rate fixed in the original lease ($5,100 per annum) and at the rate of $7,000 per annum for the months in question.
The theory upon which the disallowances were made is that the Government having acquired the right, at its option, to occupy the premises continuously until August 31, 1924, at the rental of $5,100 per annum it must be presumed that all occupancy during said period is under said option and that any agreement purporting to fix a higher rate of rental for occupancy during such period is of no force or effect.
The question as to the effect of an agreement purporting to increase the rent fixed under a lease similar in terms to the one here under consideration was decided by this office January 20, 1922, with reference to the accounts of Wildurr Willing, lieutenant colonel, Corps of Engineers, involving rental of office quarters for the district engineer at Portland, Me., and again April 22, 1922, 1 Comp. Gen., 579, with reference to the accounts of William P. Stokey, major, Corps of Engineers, involving rental of office quarters at Zanesville, Ohio. The question received careful consideration when each of said decisions was rendered and I find nothing in the facts or arguments presented by Major Putnam, the Chief of Engineers, the Acting Judge Advocate General, or the attorney for Mr. Ellsworth to justify a ruling in this case different from that announced in the decisions of January 20, 1922, and April 22, 1922, which are hereby reaffirmed.
In the lease here involved the provisions with reference to termination and renewal are identical except as to date with provision in the leases involved in the former decisions.
Paragraphs 3 and 4 of this lease read:
3. This lease may be terminated at any time by either party upon giving sixty (60) days' written notice to that effect to the other party.
4. At the option of the lessee this lease, with all its covenants and agreements, may be renewed for such period and as often as said lessee may elect,