new period of hospitalization does not commence for purposes of 38 U.S.C. 3203 (a) (1) in either case. Question c is answered accordingly. In answer to question d you are advised that in administering the provisions of 38 U.S.C. 3203 (a) (1), whether in conjunction with the provisions of 38 U.S.C. 620 or otherwise, the military departments are not required to make, nor should they attempt to make, determinations based on information which is insufficient, lacking in essential elements or contradictory in nature. In such circumstances the procedure prescribed in 31 U.S.C. 74 should be followed which authorizes disbursing officers or the head of any executive department, or other establishment not under any of the executive departments, to apply for a decision by the Comptroller General upon any question involving a payment to be made by them or under them. [B-161815] Officers and Employees-Transfers-Relocation-House Purchase No House Sold at Old Station Under Public Law 89-516 and implementing Bureau of the Budget Circular No. A-56, authorizing the reimbursement of expenses in connection with either the sale of a residence at the old station or purchase of a dwelling at the new official station within the United States, an employee may be reimbursed the expenses incurred in connection with the change of official station if he does not sell a residence at his old station but purchases one at his new station, or conversely if he incurs expenses incident to selling his residence at the old station but does not within the allowable time limitation purchase a residence at his new station. Officers and Employees-Transfers-Relocation Expenses-Duty Stations Within United States Requirement In view of the requirement in section 2 of Public Law 89-516 and section 4.1(a) of Bureau of the Budget Circular No. A-56, that both the old and new duty stations of a transferred employee must be located within the 50 States, the District of Columbia, the territories and possessions of the United States, the Commonwealth of Puerto Rico, or the Canal Zone to entitle him to reimbursement for the expenses incurred in buying or selling a residence, reimbursement may not be made to an employee for the cost of selling a residence in the United States incident to a change-of-duty station to a foreign post of duty, nor may an employee be reimbursed for residence purchase expenses upon reassignment to the United States. To the Secretary of the Treasury, August 4, 1967: This is in reply to the letter of your Special Assistant to the Secretary for Enforcement of June 14, 1967, raising several questions regarding section 23 (4) of the Administrative Expenses Act of 1946 (60 Stat. 807) as added by section 2 of Public Law 89-516, approved July 21, 1966, 80 Stat. 323, 5 U.S.C. 5724a, and as implemented in section 4 of Bureau of the Budget Circular No. A-16, revised October The questions renumbered for identification are as follows: 204) Can an employee be reimbursed for expenses in cranectica with a trans Ser when the old and new official stations are in the mammental United States I de does not well a residence at the cid station but purchases a residence at de de sarica! 3] Conversely, can he be reincurved for willing expenses at the vid stated if he does not within allowable time imita przeñase a residence at the new station? 2017 If the above is answered affirmatively can an emptoree who wils his sulence in the United States pursuant to a change of stance to a foreign post at duty be reimbursed for his selling expenses? (3) Fitter man he be reimbursed for residence purchase expenses on reassignment to the Tiited States? Any residence purchase or sale expenses in foreign comes of acre, are 30C DEMOⱭrSadie. In asking for an advance decision of our Office on the questions submitted it is urged that the word "and" is used isnctively in section 234) to authorize payment of expenses in connection with the sale of a residence at the old official station or the purchase of a dwelling sa the new oficial station, and likewise that Congress intended to defray an employee's expenses in connection with the sale or purthase of a dwelling located in the United States irrespective of the fact that the new oficial station is located outside the United States. Section 23:4) of Public Law 989-516. provides as follows: (4) The expenses of the sale of the residence for the settlement of an unexpired lease of the offer or empingee at the d offeral station and purchase of a home at the new official station required to be paid by him when the old and new offcial stations are located within the United States incinding the District of Columbia), its termones and possessions, the Commonwealth of Puerto Rico, and the Canal Zone, but reimbursement for brokerage fees on the sue of the residence and other expenses under this subsection shall not exceed those customary charged in the locality where the residence is located and no reimbursement shall be made for losses on the sque of the residence. This provision apples regardess of whether the title to the residence or the unexpired lease is in the name of the officer or employee alone, in the joint names of the officer or employee and a member of his immediate family, or in the name of a member of his immediate family alone. In implementing section 23.4). Bureau of the Budget Circular No. A-56. revised, provides as follows: 41 Conditions and requirements moder which allowines may be paid. To the extent alowable under this provision, the Government will reimburse an empiopee for expenses required to be paid by him in connection with the sale of one residence at his cid qñetal staten paribase of coe dwelling at his new official station; or the sectiement of an mexpired lease at his place of residence at the oid official station : procvded that: 1. A permanent thange of station is authorized or approved and the old and new cɗcal stations are incated within the 7 states, the District of Columbia, the terricones and possessions of the United States, the Commonwealth of Puerto Roen, or the Canal Zone and the emploree has signed an agreement as required in subsection 1. · See ex li isicas in subsectiva ££; Our opinion is that under the statute and regulations the expenses in connection with either the sale of a residence at the old official station or the purchase of a dwelling at the new official station in է the United States are reimbursable. This interpretation is supported by the language of S. Rept. No. 1357, accompanying H.R. 10607, enacted as Public Law 89-516, which states in part as follows: The principal features of the bill provide for— 4. Payment of certain real estate transactions resulting from the employees' sale or purchase of residence, or lease settlement of rented quarters, incident to transfer from the old to the new station. Accordingly, questions 1 [a] and [b] are answered in the affirmative. With respect to questions 2 [a] and [b], section 23 (4) of Public Law 89-516, and section 4.1a of the regulations literally require that both the old and the new stations be located within the United States or the other named areas before the right to reimbursement will arise. This requirement is in accord with the explanatory statement of the Bureau of the Budget in connection with the allowances contained in H.R. 10607, which interpreted the bill as limiting authorization for reimbursement to those instances where both the old and new stations are located in the United States (including District of Columbia), its territories and possessions, the Commonwealth of Puerto Rico, and the Canal Zone. S. Rept. No. 1357, June 30, 1966, 89th Cong., 2d sess., page 8. When the Congress desired to make the expense reimbursable if only the new station is required to be located in the United States (and other named places) the law so stated as in connection with the allowance for subsistence expenses for temporary quarters contained in section 23(3). However, when both the old and the new stations were required to be located in the continental United States or the United States (and other specifically named places) then the law spelled out this requirement as in the subsections dealing with locating a residence and expenses in connection with the sale or purchase of a home, subsections 23 (2) and 23(4), respectively. On the basis of the foregoing, questions 2[a] and 2[b] are answered in the negative. [B-161179] Contracts Specifications Changes, Revisions, Etc.-Delays— Reimbursement The recovery of the stand-by costs and related expenses incurred by a contractor in connection with the delayed performance of a contract for grading a timber access road and constructing a footbridge is limited in the absence of a contractual provision for payment of delayed costs to the additional expenses directly attributable to the changed work authorized under the Changes clause of the contract which disrupted the contract, and in accordance with the so-called Rice doctrine, United States v. Rice, 317 U.S. 61, payment may not be made for the consequential expenses incurred incident to the unchanged work. To Dowell H. Anders, Department of Commerce, August 7, 1967: Your letter of March 29, 1967, requests a legal decision on whether the Bureau of Public Roads has authority to pay for stand-by (delay) costs resulting from a constructive change when there is no specific contract provision under which increased costs for delay may be paid. Your request stems from a decision rendered on December 6, 1965, by the Department of Commerce Appeals Board in the appeal of A.L. Harding, Inc., Docket No. PR-44. The appeal was taken from a denial by the Bureau of Public Roads contracting officer of a number of claims for additional compensation totaling approximately $92,000. The contract involved (No. CPR 8-9443 dated November 2, 1959) was in the amount of $425,376 and called for grading of 9.382 miles of a timber access road and the construction of a 125 footbridge over Pass Creek in Douglas County, Oregon. Performance history under the contract is described in the contracting officer's decision of September 9, 1963, as follows: Contract time began December 3, 1959 and 250 calendar days were established as the total contract time to be allowed. Actual construction operations began January 11, 1960, with the majority of the work being performed during the summer construction seasons of 1960 and 1961. The project was satisfactorily completed and accepted on August 1, 1962. The 250 calendar days allowed under the contract were further increased by four days from work under change orders, and 20 days by findings and determination of claim for time extension due to delays related to strike by operating engineer's union. Also time was increased 51 days under the contract provisions on account of a 20.246% overrun of the total contract bid amount. These contract time extensions amounted to a total of 75 days, or a total contract time of 325 days. Contract time used to complete the work was 341 days, thus resulting in a 16 day overrun of contract time for which penalty was assessed at the rate of $100.00 per day In response to claims submitted by the contractor the contracting officer issued two separate decisions under the disputes clause of the contract. In his first decision dated September 9, 1963, the contracting officer allowed the contractor a time extension of 16 days and the sum of $20,163.25 which included $1,600 representing liquidated damages which were released as the result of the 16-day time extension. In his second decision dated June 17, 1964, the contracting officer allowed the contractor the additional sum of $14,231.36. The contractor appealed those claims disallowed by the contracting officer and also claimed additional amounts on those claims which were partially allowed. The total amount claimed before the Appeals Board was $57,964.26 which was broken down into the following claims: (1) Ditch claim, (2) Staking, (3) Slide removal, (4) Winter work, (5) Back tracking, danger tree removal, (6) Failure to accept job on completion, and (7) Allowance for excess excavation over 125 percent of original bid schedule quantities. Our discussion hereafter will be limited to the Ditch and Staking claims since the stand-by (delay) costs upon which you request a decision relate to those two claims. Under the Ditch claim the contractor contended that he was directed to construct a ditch adjacent to the roadway in all cuts throughout the length of the project except for 2,000 feet; that the plans did not provide for ditches in rock sections, and that his bid price for unclassified excavation was on the assumption that a ditch would not be required in the rock cuts. The claim was based on the theory that the Government's direction to construct the ditch constituted a "change" or "constructive change." While the contracting officer allowed this claim in substance and granted an equitable adjustment based on the estimated cost actually incurred for the extra ditch work, the contractor, on appeal, disputed the contracting officer's determination on the amount and significance of rock excavation resulting from the continuous ditch. The Appeals Board upheld the contracting officer's decision and concluded that his allowance for the extra work involved was a reasonable and proper equitable adjustment. On the Staking claim the contractor asserted that his operations were delayed, suspended and/or interrupted because of the absence of grade stakes and that this was a direct consequence of the addition of the ditch as described under the Ditch claim. The contractor claimed that the new ditch addition necessitated numerous grade and alignment changes which in turn necessitated re-staking by the Government. This resulted, according to the contractor, in 22 days delay, at an estimated cost for stand-by and related expenditures of $450 per day or a total of $9,900. The contracting officer denied the monetary claim relying upon clause 5 (c) of the General Provisions (Standard Form 23A, March 1953 edition) which limits any adjustment for delays due to an act of the Government to an appropriate adjustment in contract time. However, the contracting officer did find that 5 days delay on the claim were attributable to the Government and he included these 5 days in the aforementioned 16 days time extension which had the effect of releasing the liquidated damages previously withheld. On appeal, the Board held as follows: Staking Claim This is a claim for standby costs and related expenditures which allegedly resulted directly from the circumstances underlying the above-described ditch claim. The contracting officer found that they did so result, at least to the extent of five (5) days for which, however, he concluded he was legally authorized under the contract only to extend the Contractor's performance time on this account. The Government took substantially the same position on appeal, also referring to the so-called Rice doctrine and making the additional argument that the claim was of a breach of contract nature, and, accordingly, beyond this Board's jurisdiction to decide. "Rice" Doctrine: Impact Costs We think the Government's analysis and conclusion in respect to this claim was wrong. It reflects a much too literal reading of the contract provision relat |