422 Syllabus of War and in actual practice, the time during which an employee, including employees holding positions such as those held by plaintiffs, was off duty on leave (sick or annual) with pay, was not excluded or deducted for overtime pay purposes or for the purpose of additional compensation in lieu of overtime, but only the time off duty without pay was to be deducted for the purpose of computing the amount due for overtime pay or additional compensation in lieu of overtime. (See Section 20.11 (a) and (b), Civil Service Overtime Pay Regulations, Part 20, May 8, 1943, Exhibit A; and as amended October 17, 1944, sections 20.10, 20.11, and 20.16, Exhibit E.) There is no evidence or claim that defendant, in computing and paying plaintiffs additional compensation in lieu of overtime under the statutes and regulations in effect prior to January 1, 1945, deducted any portion of time off with pay. The evidence shows that in computing and paying plaintiffs overtime at time and one-half of their hourly rate of pay for 16 hours of overtime per week, on the basis of an established workweek of 56 hours, subsequent to January 1, 1945, defendant did not exclude or deduct any time during which any of plaintiffs was off duty on leave with pay. We think the practice and the regulations in this regard were in conformity with the purpose and intent of the overtime pay statutes. Plaintiffs are not entitled to recover. The petitions are, therefore, dismissed. It is so ordered. MADDEN, Judge; JONES, Judge; WHITAKER, Judge; and WHALEY, Chief Justice, concur. ALLEN POPE v. THE UNITED STATES [No. 46476. Decided December 2, 1946. Plaintiff's motion for new trial overruled March 3, 1947] On the Proofs Government contract; payment to contractor at rate stipulated in contract for number of cubic yards of fill.-The Government requested bids on the building of an embankment of an indefinite height, but approximately 48 feet, with the understanding that only $2,500 was available for the work and that “the quantity of 107 C. Cls. filling which will be done is dependent upon the unit price for the work." Plaintiff submitted a bid at 20 cents per cubic yard, with the condition “that not less than $2,500 will be paid," and his bid was accepted, the contract which was entered into stipulating that the expenditure of approximately $2,500 was contemplated. Plaintiff completed the contract, after certain variations in the plans, and placed in the embankment 13,776 cubic yards, for which he was paid at the rate of 20 cents a cubic yard, $2,755.20. It is held that plaintiff is not entitled to re Reporter's Statement of the Case cover more. The Reporter's statement of the case: Mr. Allen Pope in propria persona. Mr. P. M. Cox, with whom was Mr. Assistant Attorney General John F. Sonnett, for the defendant. The court made special findings of fact as follows: 1. Plaintiff is a citizen of the United States, having his principal place of business and residence in Washington, D. C. He is and was at all times material herein engaged in business as a contractor for engineering construction. 2. June 8, 1938, the Bureau of Yards and Docks, Navy Department, advertised for bids for the extension of and repairs to an existing embankment behind a rifle range butt at the Naval Academy, Annapolis, Maryland, in accordance with specifications and drawings therein referred to. The general description and location of the work was set out as follows: 1-02. General description.-The work includes clearing borrow pit site and earthwork. Approximately $2,500 is available for the work and the quantity of filling which will be done is dependent upon the unit price for the work. 1-03. Location.-The work shall be located at the Naval Academy (Rifle Range), Annapolis, Md., approximately as shown. The exact location will be indicated by the officer in charge. The item on which bids were requested was set out as follows: Item 1.-Price per cubic yard, borrow pit measurement, for the fill in place, complete in accordance with the drawing and specifications. 463 Reporter's Statement of the Case 3. In compliance with the above invitation, plaintiff, on June 22, 1938, submitted a bid of 20 cents per cubic yard for the item described in the preceding finding, and included with his bid the following statement: It is a condition of this bid that not less than $2,500 will be paid. June 25, 1938, defendant notified plaintiff of the acceptance of his bid, stating in the letter of acceptance that: The work under this contract contemplates the expenditure of approximately $2,500. Before submitting his bid, plaintiff examined the site and acquainted himself with conditions under which the work was to be carried out. 4. June 27, 1938, plaintiff and defendant entered into a contract which described the work to be done and the consideration therefor as follows: ARTICLE 1. Statement of work.-The contractor shall furnish the materials, and perform the work for constructing an extension and making certain repairs to an existing embankment behind the 600-Yard Range butt, at the Naval Academy (Rifle Range), Annapolis, Maryland, as contemplated by item 1, paragraph 3-02 of specification No. 8796, for the consideration of twenty cents ($0.20) per cubic yard, borrow pit measurement, for the fill in place, in strict accordance with the specifications, schedules, and drawings, all of which are made a part hereof and designated as follows: Said specification No. 8796, General Provisions, and drawing mentioned therein. The work under this contract contemplates the expenditure of approximately $2,500. The work shall be commenced within 10 calendar days after date of receipt of notice to proceed and shall be completed within 90 calendar days from the date of receipt of notice to proceed, subject to the provisions of paragraph 1-06 of said specification. 5. The specifications contained the following provision with respect to time of completion: 1-06. Time for completion.-The work shall be completed within 90 calendar days after date of receipt of notice to proceed therewith, except that for each working day or part thereof on which work is not done because Reporter's Statement of the Case 107 C. Cls. of firing on the rifle range at times other than those listed in the firing schedule given hereinafter (paragraph 1-14), the time for completion will be extended an equal time. Paragraph 1-14 referred to in the above section read as follows: 1-14. Restriction of working hours.-No work will be permitted at the site while firing is being done at the rifle range in accordance with the following schedule: 1938 FIRING SCHEDULE June 6 to June 24, inclusive, August 1 to August 19, inclusive, Mondays, Tuesdays, Thursdays, Fridays, 7: 50 a. m. to July 25 to July 28, inclusive, August 22 to August 25, inclusive, Mondays, Tuesdays, Wednesdays, Thursdays, 7:50 a. m. to 11:50 a. m. There will be no firing on the range after August 25 until approximately September 26. The firing schedule from and after September 26 has not yet been determined. For actual interruptions in the work (other than those listed in the above schedule) resulting from firing on the range, the time for completion, specified hereinbefore, will be increased in a manner such that the additional working hours added will equal the number of working hours lost by the contractor on account of the firing. The Government reserves the right to suspend the work on days or parts of days when firing on the range is being done at times other than those listed in the schedule given above (see paragraph 1-06). Work will be permitted at all other times except that no work requiring the presence of an inspector will be permitted on Sundays and holidays. 6. The specifications contained the following provisions with respect to the borrow pits from which the material for the embankment was to be obtained and with respect to the measurement of material for purposes of payment: 2-02. Borrow pits.-Material for the fill shall be excavated from the borrow pits indicated. Borrow pit excavation shall be started at the ends towards Little Carr's 463 Reporter's Statement of the Case Creek at elevation +12.00 for borrow pit in rear of new embankment and at +15.00 for borrow pit in front of existing embankment, from which points it shall be graded back uniformly covering the entire width of the pits on a slope of one foot in 100 feet. The backs of the borrow pits shall be graded on a 2 to 1 slope to the existing grades. * 2-05. Measurement.-Fill will be measured by sections of the borrow pits taken by the Government before and during the progress of the work, in the presence of the contractor or his authorized representative, if desired. Material taken from the borrow pits for use in construction of temporary work outside of the embankments, will be deducted from the quantities for which payment will be made. 7. August 31, 1938, plaintiff received defendant's notice to proceed with the work, which fixed the date for completion as November 29, 1938, subject to the provisions of paragraph 1-06 of the specifications set out in finding 5. Prior thereto plaintiff had requested permission to proceed, but this had been denied. However, with the consent of the officer in charge, plaintiff at 4:30 p. m., August 15, 1938, commenced to remove the trees from the site of the borrow pit working nights continually from then until August 30, 1938, and on until the contract was completed. On the latter date he began moving earth for the embankment. 8. The original drawings showed the dimensions of the embankment, and its location as well as the location of the borrow pits. A cross-section of the embankment set out on the same drawing showed that the embankment was to be constructed to an elevation of ±48.00 and have slopes of 12: 10. A further notation read: "These dimensions vary to suit elevation of existing ground." Elevation "+48.00," means 48 feet more or less. Under the drawings and specifications the amount of material necessary to build the embankment indicated and to do certain repair work was approximately 9,000 cubic yards. Since the contract indicated that it was contemplated to expend approximately $2,500 thereunder, some discussion took place between defendant's representatives and plaintiff over the disposition of the additional yardage which might be |