inclosed case, are coming in. It is the desire of the War Department to get a decision from your office relative to such cases and in this way relieve the contractor, the Claims Section of your office, and the administrative and disbursing officers in the War Department, of the necessity of preparing so many claims. Attention is directed to the fact that more than one contract is involved, but since all of the contracts have a similar discount provision it is thought best to particularize the case using contract No. DA W 241-ORD-339, dated March 30, 1942 (original copy transmitted to War Contract Section of General Accounting Office) which contract is the one involved in the illustrative claim inclosed herewith.

Under the terms of this contract (DA W 241-ORD-339) the claimant agreed to furnish certain machine tools f. o. b. origin, New Bedford, Massachusetts (or f. o. b. New York, New York, in the event shipment for export is directed to said point), for a consideration of $165,943.98, less discount of 2%, 20 days, such price being predicated on the articles being packed for domestic shipment.

The contract further provides (Article I-Payments-"Special Provisions" (a)), that if the articles were packed and boxed for shipment to the British Commonwealth of Nations (exclusive of Canada) the price under item 2 would be reduced by an amount equal to 20% of the contract price for such articles as are so consigned.

In those cases where material is consigned to a foreign government there is a reduction in the contract price to the extent discussed in the preceding paragraph and this action leads directly to the question here involved, i. e., should the discount be taken on the price quoted for domestic shipment, or on the net figure arrived at by deducting the export differential from the domestic price?

The War Department in computing the payment due has deducted 20% of the gross domestic price as representing the export differential and has deducted a further 2% of the gross domestic price as representing cash discount. Inasmuch as the War Department has computed this 2% discount on the domestic price before deducting the export differential, the total deduction constitutes 22% of the gross domestic price. The contractor contends, however, that in computing the cash discount there should be deducted only 2% of the export price, i. e., 2% of the gross domestic price after deduction of the export differential. Under this method of computation, the total deduction would be only 21.6% of the gross domestic price.

The contractor, in support of its contention, calls attention to the fact that the discount is given for prompt cash payment and argues that since the payment involved is the export price after deduction of the export differential the 2% should be computed on that amount. The contractor's position is correct for the further reason that the custom of allowing discount is based on the theory that the use of the money tied up in a shipment will be worth to the vendor the amount of the discount offered. This view appears substantiated by the action of the Claims Division of your office, which division, in a recent certificate of settlement, No. 0697313, dated October 1, 1942, allowed under similar circumstances, the claims of the Geometric Tool Company of New Haven, Connecticut for the discount erroneously taken.

In view of the doubt that this casts upon the method of computation used by the War Department, and in view of the fact, as above pointed out, that a number of similar claims are now pending before your office, or will soon come up for termination in this office, it would be appreciated if your office would give consideration to this problem and render a decision as to the proper method of computing the discount under these and similar contracts which contain such an export differential clause.

As is stated in your letter, Article 1 of contract No. DA-W-241ORD-339 provides that, as consideration for furnishing the articles included in Item 2 thereof, the contractor shall be paid a total sum of $165,943.98, subject to a discount of 2 percent for payment within 20 days from the date of delivery of the articles or from the date of receipt of a properly prepared invoice, whichever is the later. However, said Article 1 provides also, as follows:

article or articles are consigned to any member of the British Commonventi of Nations (exclusive of the Dominion of Canada), or any agen ful contract price specified under Item 2 suali i reduced by an aniour m 20% of the contract price for suen articies as are so consigned. * Hence, it is seer that while the contract price for the articies nonded in Item 2 is subject to a discount of 2 percent for payment via days, the contract price itself is subject to reduction by an amount equ to 20 percent thereof with respect to such of the articles a KDsigned for export shipment as specified therein. Whit the contract does not provide expressly that in making payment for artanes so consigned, the 2 percent discount shall be taken on the adjusted price. it is reasonable to assume that such was the intention of the parties I view of the express provision for adjustment of the contract price in the event any of the articles were consigned for export shipment. See 18 Comp. Gen. 784.

Accordingly, you are advised that in making future payments for articles consigned for export shipment under the instant contract or other contracte containing similar provisions, the discount should be computed on the reduced contract price payable for such shipments.

Bureau Voucher No. 48-5058 in the amount of $14.85, in favor of the Morse Twist Drill and Machine Company, which was forwarded with your letter of February 3, and which represents a claim for refund of discount deducted in making payment under contract No. DA-W-241ORD-339, supra, will be retained in this office for direct settlement as a claim as requested by the disbursing officer.

(B-32270)

TRANSPORTATION-UNUSED PULLMAN ACCOMMODATION RESERVATIONS-GOVERNMENTS AND EMPLOYEES' LIABILITY

Payment for unused Puliman accommodations reserved on Government transportation requests may be made from appropriated funds where the condi tions of tariff I. C. C. No. A-29, "Governing The Redemption Of Sleeping Or Parlor Car Tickets are not so complied with as to meet in substance their requirements for redemption of tickets. Where a charge for unused Pullman accommodations, which had been reserved on a Government transportation request for use of an employee, accrues against the Government due to failure to release the accommodations in aecordance with the provisions of tariff L. C. C. No. A-21, "Governing The Redemption Of Sleeping Or Parlor Car Tickets and it is found that failure so to release the accommodations was due to the employee's disregard of section 14 of the Standardized Government Travel Regulations or other negligence, collection should be made from the employee in the amount of such charge, but collection is not required where it is administratively determined that failure to release is due to circumstances beyond the control of the employee.

When unused tickets or portions thereof, representing unused Pullman accommodations reserved on Government transportation requests, are presented to a ticket agent for cancellation, they should not be surrendered by the traveler to such agent but should be handled as required by paragraphs 32 and 33 of the Standardized Government Travel Regulations.

Assistant Comptroller General Elliott to the Liaison Officer, Office for Emergency Management, March 1, 1943:

Reference is made to your letter dated February 3, 1943, as follows:

I. C. C. No. A-20, Tariff Governing the Redemption of Sleeping and Parlor Car Tickets, effective May 20, 1942, provides that the cancellation of pullman space must be effected before train departure, and prescribes the procedure to be followed in canceling such accommodations. Under this tariff there arise several questions regarding the liability of the Government where an employee of the Government fails to cancel pullman accommodations secured in exchange for Government transportation requests.

In order to define more clearly the liability of the Government under this tariff, we would appreciate your reply to the following inquiries:

"I. Where pullman reservations secured in exchange for Government transportation requests are not used and either due to the negligence of the traveler or for reasons beyond his control, are not released prior to train departure, may the Government pay for such accommodations from appropriated funds?

"II. If the answer to question I is in the affirmative is the Government required to effect collection when :

a. The failure to release such space prior to train departure is due to the negligence of the employee?

b. The failure to release pullman reservations is due to circumstances beyond the control of the traveler?"

Tariff I. C. C. No. A-20 to which you refer is The Pullman Company's tariff issued April 15, 1942, to be effective May 20, 1942, "Governing The Redemption Of Sleeping Or Parlor Car Tickets Sold For Accommodations In Cars Of This Company"; and embodies the carrier's rules to govern the redemption of "Unused Or Partly Used" tickets sold for such accommodations. In tariff section 3 (c) it is provided that: "Tickets will not be redeemed except under the conditions shown" in this tariff.

Common carriers' tariffs naming conditions under which carriers will redeem tickets for unused transportation have been in effect for many years and the Interstate Commerce Commission has found that it was not unreasonable for carriers not to provide for "payment of redemption money" for tickets not used by the purchaser where the situation was such that the carriers would have no protection against the use, by others than the purchasers, of the transportation purchased; Preston L. Hill v. Pennsylvania Railroad Company et al., 25 I. C. C. 650; or where it would be practically impossible for, the carriers to prevent misuse of the transportation purchased; W. Nelson Edelsten v. Pennsylvania Railroad Company et al., 26 I. C. C. 359.

It will be noted that the cited cases pertain to situations where the carriers possibly would suffer no direct loss such as would be involved when purchasers of transportation put the carriers in the position of reserving accommodations which could not be sold to other would-be purchasers or otherwise disposed of to the carriers' advantage or for the accommodation of other passengers without a timely release, by the purchasers, of the accommodations which had been reserved for them. In situations of this latter character it would seem to be consistent with the cited cases that tariff r nch as those in tariff I. C. C. No.

A-20 would not be unreasonable when their requirement is that, for purposes of redemption, tickets for accommodations that are not going to be used by the holders be not only returned to the carrier but that they be returned prior to the departure of the train concerned, or that in lieu of such prior return the carrier be given notice before departure of the train that the reserved accommodations are released and may be otherwise disposed of. It has been said that in respect to furnishing transportation, a railroad ordinarily bears to the Government the same relation that it does to a private party. St. Louis, B. & M. R. Co. v. United States, 268 U. S. 169. Conversely, it would seem that in respect to receiving or engaging transportation the Government ordinarily would bear to a railroad the same relation as does a private party; and there is no apparent reason why the same rule should not apply where The Pullman Company is the carrier concerned. See in this latter connection the somewhat analogous situation in 21 Comp. Dec. 184, pertaining to an unused steamship reservation the ticket for which was returned to the carrier but not within the time prescribed by the carrier's regulations relating to redemption. There appears, therefore, no reason why, in the absence of any specific provision to the contrary appearing in the particular appropriation chargeable with the cost of the service, payment for unused Pullman accommodations should not be made from appropriated funds where the conditions of tariff I. C. C. No. A-20, if applicable, are not so complied with as to meet in substance their requirements for redemption of tickets. In this connection, however, it seems proper to point out that tickets procured on Government transportation requests and presented to the ticket agents for cancellation should not be surrendered by the traveler to such agents but should be handled as required by paragraphs 32 and 33 of Standardized Government Travel Regulations, as amended, March 7, 1941. Accordingly, the answer to your first question is in the affirmative.

Concerning your question II (a), it will be noted that the Standardized Government Travel Regulations, as amended, March 7, 1941, require (14) that when a traveler finds that he will not use sleepingor parlor-car accommodations which have been reserved for him "he must release them immediately." In answer to your question II (a) you are advised that where a charge for unused transportation of this character accrues against the United States because the reserved accommodations were not released in accordance with the provisions of tariff I. C. C. No. A-20, and such failure so to release the accommodations is found to have been due to the employee's disregard of the Travel Regulations or other negligence, collection should be made from the employee in the amount of said charge.

Concerning your question II (b), you are advised that where the failure to release the accommodations in accordance with the pro

visions of tariff I. C. C. No. A-20 is due to circumstances beyond the control of the traveler and not arising in connection with negligence on his part, and it is administratively so determined, it does not appear to be required that the traveler be charged with the amount accruing because of such failure to comply with the tariff requirements.

(B-32442)

OVERTIME AND ADDITIONAL COMPENSATION UNDER ACT OF DECEMBER 22, 1942-"WHEN ACTUALLY EMPLOYED" EMPLOYEES Unclassified skilled and unskilled employees of the Department of Agriculture employed on a per diem "when actually employed" basis for whom there has not been adopted administratively a wage board procedure in fixing their wage rates, although their wages are adjusted administratively from time to time to bring them in line with those prevailing in the vicinity, are not excluded from the benefits of the overtime and additional compensation act of December 22, 1942, by the provision thereof which excludes employees whose wages are fixed and adjusted from time to time in accordance with prevailing wage rates by wage boards or similar administrative authority. "When actually employed" employees who are paid on a time basis and regularly work full time, or are required to be available for duty full time, are entitled to increased compensation under the overtime and additional compensation act of December 22, 1942, on the basis of the overtime formula prescribed therein, but if such employees are required to work, or to be available for duty, only irregularly, intermittently, or less than full time, they are part time employees and, as such, entitled to increased compensation on a 10 percent basis under the said act.

Comptroller General Warren to J. H. Beattie, Department of Agriculture, March 1, 1943:

Reference is made to your letter of February 11, 1943, as follows:

There is submitted herewith for your decision as to validity of payment, a supplemental payroll covering the payment of December overtime, in accordance with Public Law 821, 77th Congress and Executive Order 9289 dated December 26, 1942, of certain employees employed under letter of authorization and paid solely on a daily basis.

Subdivision (a) of the second proviso of Section 1 of the Act excepts from the extension to pay overtime compensation "those (employees) whose wages are fixed on a daily or hourly basis and adjusted from time to time in accordance with prevailing rates by wage boards or similar administrative authority serving the same purpose". Your decision B-31430 of January 4, 1943, and other decisions, make it clear that this exception was intended to apply generally under the statute.

The Department of Agriculture, so far as I know, has no formally created wage board or wage fixing procedure set up for the Department. The bureaus are free to establish the wage rates of unallocated employees in their own way subject to a general announced policy of a minimum wage of thirty cents an hour. However, in the case of the employees here involved, the bureau practice is to be alert for changes and fluctuations in the prevailing rates of wages for the types of work involved, and to have administrative officials concerned meet on Occasions when changes seem to be demanded and determine what changes should be made to make the rates paid fall in line with the prevailing rate, all other things considered.

The employees in question are skilled and unskilled laborers employed at Beltsville in connection with the removal of Arlington Farm and paid on a daily "when actually employed" basis. The daily wage of these employees, as well as the daily wage of all of our une employees paid on a daily basis when actually employed, has been a to time in order to pay the prevailing wage for like work in the employees work. Had 540712m-43-56