I think Gerlach was a person accompanying the Army of the United States, and also voluntarily serving with the armies of the United States at the time he disobeyed the order. I further hold that he was "in the field" and without the territorial jurisdiction of the United States within the meaning of the article. The words "in the field" do not refer to land only, but to any place, whether on land or water, apart from permanent cantonments or fortifications, where military operations are being conducted. In this case he was on an army transport, and peril from submarines existed when he refused to stand watch. The captain in charge of the vessel had, in my opinion, the right to call upon all persons on board to protect the transport in any way that seemed best in view of the danger. *

See also Ex parte Falls, 251 Fed. Rep. 415; Ex parte Jochen, 257 id. 200.

It is to be noted, also, that the situation in the United States as well as in other areas in the present conflict with highly mechanized armed forces and great numbers of airplanes is materially different from that which existed during World War I.

During World War I the following appeared in War Department Bulletin No. 35 dated June 15, 1917:

All duty with troops of any kind in the field, at home, or abroad, during the present war, will be considered as not temporary duty in the field in contemplation of the act of Congress approved February 27, 1893, which provides that officers temporarily absent on duty in the field shall not lose their right to quarters or commutation thereof at their permanent stations while so temporarily absent. Under this decision no officer or enlisted man on duty in the field can have any official station elsewhere, within the meaning and contemplation of the laws and regulations relating to the allowance of quarters or commutation thereof, but while on such duty his rights as to quarters will be as prescribed for field service.

From the foregoing it is obvious that those members of the armed forces who are now engaged in the performance of duty in the theater of active operations are on field duty and it seems apparent that officers on duty with troops within or without continental United States are on field duty. Clearly since December 7, 1941, officers with troops in the Pacific within the area of enemy operations, including Hawaii, Philippine Islands, etc., are operating against an enemy and are on field duty. The same is true of officers with troops in Iceland, Northern Ireland, etc. Enemy operations have been reported off both the Atlantic and Pacific Coasts and also in the Caribbean area and that areas adjacent to these waters may be subjected to enemy attack is more than a mere possibility. It is reported also that a "zone of expectancy", approximately 300 miles wide paralleling each coast has been mapped as an area within which actual enemy operations may be expected.

In the Washington Post of October 24, 1942, there is an article in part as follows:

Secretary Knox disclosed yesterday that the total strength of the naval services-the Navy, Marine Corps and Coast Guard-is now approximately 1,300,000

men.

The Secretary said the strength of the Navy was nearly one million and there were approximately 200,000 in the Marine Corps. The regular Coast Guard, he said, now numbers about 110,000.

All three of the services, Knox added, are being increased "by a very steady and very satisfactory rate of enlistment."

The Secretary and Vice Admiral Russell R. Waesche also discussed steps the Coast Guard has taken to increase the security of American ports, particularly

cfcer shall have

the Ted States retines that the womanding boy : mari and direct the rindan an à sctices of all persons under his vibory for the protection of the commÒ When he has that authority the xanol od il members theref are in feld dory ze by the Dell

To a variety aimsed that in the sods and settlement o£ 100vonne and this in the tÁN. £ errn with moves whether within or without the United States, will be considered and treated as feld daty from and after December T. II.

1B-SSTER

CONTRACTS COST-PLUS EXPENSE INCIDENT TO PURCHASE OF

LEGAL PUBLICATIONS

The expense beident to the protease 37 & 28glerfelde vontractor of poboacions pertaining the Aw, ses taxes etc. bearred in order to anquilize the bowen piftlig to kðlently perform the actrect work is an expense which is stadirectly associated with the evetract work 28 20 pertalo to that part of the work for which amposto is make by the fred fee, rather that it expensrud i remburgebie is a tem of as ander the contract which by reference to Treasury Deels 2n 3000 overrol ng costs payable theremoden, provides for reimbursement for Jells of idle? ap incident to and necessary for the performance of the contract.

Comptroller General Warren to Col F. E. Coyne, Jr., U. S. Army, October 31, 1942:

There has been received, by reference from Headquarters, Services of Supply, Fiscal Division, your letter of July 25, 1942, as follows: 1. There has been presented to me for payment as a disbursing effloer render in favor of The Shaker Company, in amount of $150.00, applicable to Contract W 535 AC-1739 ocvering reimbursement under a Cost-Plus-PixelDe Contract of Labor Law Service and War Law Service by the Commerce Clearing House. Inc. This is a loose-leaf service intended to be cumulative and current through the substitution of pages in binders. The volumes are of no use if the current material is not received and placed in them. Woncher also covers Interstate Sales Tax Service for the year ending March 1, 1943, for reference to the sale or use of personal property, or tax upon gross receipts of certain businesses. 2 The doubt existing is whether this amount is considered a reimbursable item in view of the fact that it is not specifically mentioned as allowable, either in accordance with the terms of Contract W 565 AC-17599 or under TD 3000,

By the terms of contract No. W 535 ac-17399, The Studebaker Corporation agreed to manufacture and deliver to the Government certain specified articles for a fixed-fee in addition to the cost of the articles.

Article 3 (b) of the contract provides, as to allowable items of cost, in part as follows:

For purposes of determining the amounts payable to the Contractor under this contract, allowable items of cost will be determined by the Contracting Officer in accordance with Regulations for the determination of the cost of performing a contract as promulgated by the Treasury Department in Section 26.9 of Chap. I of Title 26 of Code of Federal Regulations, as contained in T. D. 5000

Said Treasury Decision 5000 sets forth, under section 26.9, paragraph (a) thereof, the following general rule for the guidance of the contracting officer in determining whether an expense incurred by the contractor is an allowable item of cost, either in whole or in part: The cost of performing a particular contract or subcontract shall be the sum of (1) the direct costs 申 and (2) the proper proportion of any indirect

* incident to and necessary for the performance of the contract or

subcontract.

Purchase of the legal publications, for which reimbursement is claimed on the voucher transmitted with your letter, is not part of the direct cost of performing the contract, and is reimbursable, if at all, as an item of indirect cost. In this connection paragraph (g) of section 26.9 of Treasury Decision 5000, and subparagraph (4) thereof which is cited by the contractor as authority for reimbursement, provide in part as follows:

(g)

Expenses of distribution, servicing and administration, which are treated in this section as a part of general expenses in determining the cost of performing a contract or subcontract comprehend the expenses incident to and necessary for the performance of the contract or subcontract, which are incurred in connection with the distribution and general servicing of the contracting party's products and the general administration of the business, such as

(4) Other expenses.-Miscellaneous office and administrative expenses, such as stationery and office supplies

According to the above-quoted provisions of Treasury Decision 5000 only those indirect expenses which are "incident to and necessary for the performance of the contract" are allowable items of cost. Neither the contract nor Treasury Decision 5000 specifically mentions the purchase of legal publications as an item of cost-allowable or otherwise.

While the contract provisions with respect to reimbursement of costs may be exceedingly broad, they do not provide for reimbursement of every expense incurred by the contractor, and obviously the parties intended that the fixed fee to be paid for performing the contract should constitute compensation to the contractor for those expenses and services which might be incurred or performed in the proper and efficient prosecution of the work, as a result of having the contract to perform, but which are so indirectly associated with the work to be done as not to constitute a reimbursable cost thereof. Among such services one of the most valuable would appear to be the application of the knowledge and experience of the contractor's organization toward solving the manifold problems incident to performance of the

contract. It is the contractor's responsibility to effectively and efficiently perform the contract and to bear the burden of such expenses as necessarily may be incurred in order to acquire the knowledge and ability to do so. Under the circumstances, and assuming, as claimed by the contractor, that the publications in question are necessary to intelligent operation and administration of the contract work, it must be regarded that such necessity pertains to that part of the performance of the contract for which compensation is made by the fixed fee of several million dollars. Compare 7 Comp. Gen. 417, wherein PrenticeHall tax service was held not to be included in overhead expenses. Accordingly, you are advised that on the present record payment of the voucher, which is returned herewith, is not authorized.

(B-29903)

COMPENSATION-EFFECTIVE DATE-NAVY DEPARTMENT EMPLOYEES APPOINTED FOR OVERSEAS DUTY

Under the act of June 13, 1940, authorizing payment of compensation at actualemployment rates to civilian employees of the Navy Department, appointed for duty beyond the continental limits of the United States, "from the date of their sailing" until they report for duty overseas, an employee may be allowed compensation from the date of embarkation on a vessel where, after he is required for purposes of the Government to embark, there is a delay in sailing because of present war conditions necessitating secrecy in ship movements.

Comptroller General Warren to the Secretary of the Navy, November 2, 1942: I have your letter of October 27, 1942, as follows:

There are enclosed copies of letter of September 2, 1942, from the Commandant of the Fourteenth Naval District, Pearl Harbor, Hawaii, and of the enclosures forming part thereof, suggesting that in the interpretation of Public Act 61576th Congress, approved June 13, 1940 (54 Stat. 383; 34 U. S. C. sec. 506), the date of embarkation of employees be considered the date of their sailing from the United States.

The cited act reads:

"The Secretary of the Navy, in his discretion, is authorized to pay all civilian employees appointed for duty beyond the continental limits of the United States, and in Alaska, from the date of their sailing from the United States until they report for duty to the officer under whom they are to serve, and while returning to the United States by the most direct route and with due expedition, compensation at a rate corresponding to their rate of pay while actually employed." As will be noted from the report of the Commandant of the Fourteenth Naval District, the travel orders issued to civilians recruited for employment at Pearl Harbor provide that the appointments are effective the date the employees sail from the West Coast and that the employees shall be carried on the rolls of the Fourteenth Naval District or at the Navy Yard, Pearl Harbor, while en route from the West Coast to Honolulu.

It is believed that the primary purpose of the act is to authorize payment to an employee while en route overseas to his station of duty. When he embarks, pursuant to orders, he is to all intents and purposes en route to his station regardless of whether the embarkation or sailing dates coincide.

Particular attention is invited to paragraph 2 of the Commandant's report setting forth the serious difficulties that will be encountered under existing war conditions unless the date of embarkation is treated as the determining date for an employee enrolled at Pearl Harbor.

The Navy Department proposes issuing instructions that, for the purpose of the Act of June 13, 1940, supra, the date of embarkation of employees appointed for duty beyond the continental limits of the United States and in Alaska, shall be considered as the date of their sailing from the United States.

As the question involves the availability of appropriated monies, the matter is brought to your attention prior to the issuance of the proposed instructions for any comment that you may deem appropriate.

From the enclosures with your letter it appears that there are involved situations where the employees are required to embark and to remain on vessels held in readiness for departure, and that the ensuing delay is due to present war conditions necessitating secrecy and the awaiting of a propitious time to put to sea.

While the term "sailing" usually connotes movement and actual departure of a vessel, it is evident that the basic purpose of the cited act of June 13, 1940, 54 Stat. 383, is to allow compensation to civilian employees of the Navy appointed for duty beyond the continental limits of the United States for their necessary transit or travel time beyond such limits in going to and from their overseas stations. This seems clear from the context of the statute, which not only allows compensation to such employees while proceeding from the United States to the overseas stations but, also, "while returning" to the United States "by the most direct route and with due expedition." The present statute superseded similar provisions contained in the act of July 1, 1902, 32 Stat. 663, limited to employees appointed for duty in the Philippine, Hawaiian, and Samoan Islands, Guam and Puerto Rico. Such original legislation contained a provision that in cases where the appointee is not to fill an existing vacancy, his pay "while traveling" might be charged to the annual appropriation of the bureau concerned. That provision, apparently obsolete, was not carried forward into the present act, but the reference therein to the employee's pay "while traveling" supports the conclusion that the basic purpose of the preceding provisions in the earlier statute, repeated in the present statute, was to allow pay for necessary travel time between the United States and the foreign station, which would include periods of unavoidable delay while in a travel status. Ordinarily there is no need to board a vessel prior to the date on which it is to depart and, resolving the doubt in harmony with the primary purpose of the statute to allow compensation for necessary travel time on the vessel, I believe the conclusion is justified that the term "from the date of sailing" was used in a sense sufficiently broad to authorize the allowance of such compensation for a period of unavoidable delay after embarkation, where the Government for its own purposes requires an employee to embark on a certain day and the subsequent delay in departure is due wholly to matters beyond his control. It should be understood, however, and the proposed Navy Department instructions in the matter should make it clear, that no compensation is authorized for any period prior to the time it becomes necessary for the purposes of the Government that an employee actually embark for departure from the United States.