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Decision by Comptroller General McCarl, November 13, 1922.
A. E. Sawyer, captain, Finance Department, requested October 11, 1922, review of settlement No. W-72713, dated September 7, 1922, disallowing $2,775 on voucher No. 41, of his April, 1921, accounts because liquidated damages in that amount were not deducted from final payment to Stang and Mitchell, under contract dated March 22, 1920, for the construction of two steel seaplane hangars at Langley Field, Hampton, Va.
The contractor agreed in consideration of the sum of $225,000 to construct, in accordance with certain specifications attached to and forming a part of the contract, two steel seaplane hangars at Langley Field
commencing on or before the 1st day of April, 1920, carrying the work forward with reasonable dispatch and completing the same in 240 working days or on or before December 1st, 1920. with the provision:
In the event that contractor fails to complete work on or before date fixed for completion, he shall pay to the Government, as liquidated and ascertained damages, and not as a penalty, the sum of seventy-five ($75.00) dollars for each and every calendar day be requires to complete the work beyond said date fixed for completion, to compensate for loss sustained by Government, by reason of its inability to enter into possession; and such sum or sums shall be deducted from moneys which may be due or become due the contractor. and with the further provision:
That in case of the failure of said contractor to comply with the stipulations of this contract according to the true intent and meaning thereof (in. cluding the requirement for progress of performance to the satisfaction of the officer in charge, or higher authority), then the contracting officer, or his successor, shall have the right to complete the work in such manner as he shall deem best for the interests of the public service, either by day's labor and open market purchase of the necessary materials, or by contract, or both, and to use for that purpose the contractor's materials and appliances on the reservation or at the place where the work is being performed, and any excess of cost resulting from such failure, including any charges on account of delay, shall be charged to the contractor. In event, however, of the granting of additional time for performance, the cost of inspection and other expenses and damages (including any loss or damage to the work under construction by fire or other causes) to the United States from and after the date originally fixed for completion until the work shall have been satisfactorily accomplished, except in so far as the same may arise from delays for which the United States is responsible, as determined in each of these partic. ulars by the officer in charge, or higher authority, shall be charged to the contractor and may be deducted from any money due or to become due said contractor from the United States.
By a supplemental contract, dated May 12, 1920, the contractor agreed to reconstruct the foundation for the hangars in consideration of an additional sum of $7,900, but otherwise the original contract was unchanged. The stipulation being for completion within “ 240 working-days or on or before December 1, 1920,” the constructing quartermaster upon inquiry was informed February 26, 1921, by the chief of the first district construction service, that under previous rulings the term “working-days” would not include legal
holidays, Sundays, half days Saturday, nor days when the weather prevented work being carried out. The interpretation of the administrative office afforded the disbursing officer no protection as to the legality of a payment to be made thereunder. The matter being one of doubt in interpretation of the terms of the contract involving payment to be made was for submission to this office for advance decision,
The contention that the United States suffered no damages through delay in the completion of the construction does not require consideration, as it has been repeatedly held by both the accounting officers and the courts that under a liquidated damage clause in a contract the United States is not required to show actual damage. See United States v. Bethlehem Steel Company, 205 U. S., 105; Foundry and Machine Company v. The United States, 44 Ct. Cls., 178; 19 Comp. Dec., 278; 26 id., 424.
The stipulation of the contract was to complete it within “ 240 working-days, or on or before December 1, 1920”; for the period from date work was to commence, April 1, to December 1, is 244 calendar days, and obviously does not include 240 working-days. In computing working-days Sundays and legal holidays are excluded, and 240 working days from April 1, 1920, is January 12, 1921. The intent was the time for the work should be workingdays and not calendar days, and the naming December 1, 1920, as the date for completion was intended rather to show the date of expiration of the 240 working days than to modify the period of 240 working-days. The contractor must be held to have 240 working-days from April 1, 1920, and not only until December 1, 1920, within which to complete the work. The work was completed February 18, 1921. It is claimed that the contractor is entitled to have Saturday half holidays and rainy days, as well as Sundays and legal holidays, excluded in the computation of 240 working-days.
The term “working-days” does not exclude rainy days. Sorenson v. Keyser, 52 Fed., 163, but does exclude Saturday afternoons when made holidays by State statute. 1 Comp. Gen., 552. Under section 5758, Virginia Code, 1919, Saturday afternoons in Virginia throughout the year are half holidays. From April 1, 1920, to January 12, 1921, there were 40 Saturdays not included in other holidays, and the contractor is entitled to 20 working-days addi. tional, or until February 7, 1921, within which to complete the work. There was a delay of 11 days, and the contractor is charged with the liquidated damages at $75 per day, or $825. 17 Comp. Dec., 728.
The difference between $2,775 and $825, or $1,950 is certified due claimant for crediting in the next settlement of his account
VETERANS' BUREAU FUNDS_USE OF, BY DEPARTMENTS FOR
ASSISTANCE FURNISHED BUREAU IN PROVIDING ADDITIONAL HOSPITAL FACILITIES.
Section 7 of the act of May 21, 1920, 41 Stat., 613, does not authorize the trans
fer to departments of funds of the Veterans' Bureau for expenditure in the employment of additional personal services or otherwise assisting the bureau in providing additional hospital facilities pursuant to the act of April 20, 1922, 42 Stat., 496. * Such additional expenses, other than for personal services, as may be incurred in connection with such assistance should be adjusted by transfer settlement after the expenditures have been
made. Comptroller General McCarl to the Director United States Veterans' Bureau,
November 14, 1922.
I have your letter of October 27, 1922, requesting decision whether under the provisions of section 7 of the act of May 21, 1920, 41 Stat., 613, funds appropriated under the act of May 11, 1922, 42 Stat., 507, may be placed subject to the requisitions of the War Department and other executive departments or Government establishments " for the purpose of defraying extra and actual expenses the departments incur in the preparation of hospital plans, etc.”
The appropriation is in the following terms: That for carrying out the provisions of the act entitled “An act to authorize an appropriation to enable the Director of the United States Veterans' Bureau to provide for the construction of additional hospital facilities and to provide medical, surgical, and hospital services and supplies for persons who served in the World War, the Spanish-American War, the Philippine insurrection, and the boxer rebellion, and are patients of the United States Veterans' Bureau," approved April 20, 1922, there is appropriated, out of any money in the Treasury not otherwise appropriated, the sum of $12,000,000, and in addition to this amount the Director of the United States Veterans' Bureau, subject to the approval of the President, may incur obligations for the purposes herein set forth not to exceed in the aggregate $5,000,000.
The act of April 20, 1922, 42 Stat., 496, referred to in the appropriation, specifically authorizes the Director of the United States Veterans' Bureau to provide additional hospital facilities by purchase and remodeling or extension of existing plants and by construction, on sites now owned or to be acquired by the Government, of hospitals and other necessary buildings. Section 2 of said act authorizes the President “ to require the architectural, engineering, constructing, or other forces of any of the departments .of the Government to do or assist in such work." Section 3 authorizes the appropriation of $17,000,000 for the work contemplated and provides that “not to exceed 3 per cent of this sum shall be available for the employment in the District of Columbia and in the field of necessary technical and clerical assistance at the customary rates of compensation, exclusively to aid in the preparation of the plans and specifications for the projects authorized herein and for che supervision of the execution thereof, and for traveling expenses, field office equipment and supplies in connection therewith."
The authorization for "employment in the District of Columbia and in the field of necessary technical and clerical assistants at customary rates of compensation, exclusively to aid in the preparation of the plans and specifications for the projects authorized herein" contemplated employment by the United States Veterans' Bureau and not by any other department or establishment. The duty of having the necessary plans and specifications prepared is imposed by law upon the Director of the United States Veterans' Bureau and he is authorized to expend not to exceed 3 per cent of the amount appropriated in the employment of the necessary technical and clerical assistants to aid him in such work, etc. In addition to this the law authorizes the President “to require the architectural, engineering, constructing, or other forces of any of the departments of the Government to do or assist in ” the work of providing the additional hospital facilities. The services which the President is authorized to require other Government departments to render in connection with these hospital projects contemplates that they are to be rendered by the regular and existing forces of said departments and paid for from funds or appropriations under the control of said departments. There is nothing in the act of April 20, 1922, nor the appropriation made to carry into effect the provisions of said act that can be construed as authorizing the transfer of any part of said appropriation to any other department or establishment for direct expenditure by it.
Section 7 of the act of May 21, 1920, provides :
That whenever any Government bureau or department procures, by pur. chase or manufacture, stores or materials of any kind, or performs any serv. ice for another bureau or department, the funds of the bureau or department for which the stores or materials are to be procured or the services performed may be placed subject to the requisitions of the bureau or department making the procurement or performing the service for direct expenditure: Provided, That funds so placed with the procuring bureau shall remain available for a period of two years for the purposes for which the allocation was made unless sooner expended.
In 27 Comp. Dec. 892 it was held that notwithstanding the provision just quoted the general restriction still prevails that a particular, duty placed on one branch of the Government by enactment of Congress is not authorized to be transferred to another branch by administrative action in the nature of having one branch perform service for another. Said decision was cited with approval in the decision of this office dated June 1, 1922, 10 MS. Comp. Gen. 51, 52.
The duty and responsibility of providing the authorized addi tional hospital facilities have been placed by law upon the United States Veterans' Bureau and can not be shifted to any other department or establishment of the Government. The President is authorized to assign any or all of the architectural, engineering, construction, or other forces of any of the departments of the
Government, to work incident to these hospital projects, but it any additional forces are to be employed they must be employed by the Director of the United States Veterans' Bureau in accordance with the law and appropriation providing therefor. Such being the case there would appear to be no necessity for transferring funds from the United States Veterans' Bureau appropriations to any other department for direct expenditure by it. Any additional expenses, other than for personal services which any department or establishment might incur in connection with work incident to the preparation of plans, etc., for the United States Veterans' Bureau should be paid for by said bureau direct or by the department or establishment incurring the expense, adjustment to be made thereafter by means of a transfer settlement after proper audit.
The provisions of section 7 of the act of May 21, 1920, relative to the purchase or manufacture of material and the performing of service by one bureau or department for another do not authorize the transfer of funds from the United States Veterans' Bureau to any other Government establishment for the purpose of having a building constructed, altered, or repaired under contract. Neither do the provisions of said section authorize transfers for the purpose of helping to pay overhead or general expenses and salaries in other departments, bureaus, or offices on account of the mere cooperation of said departments, bureaus, or offices with the United States Veterans' Bureau.
In all cases in which a request is made for transfer of funds under authority of the provisions of section 7 of the act of May 21, 1920, the request should be accompanied by a detailed statement of the purpose for which the funds requested to be transferred are to be expended and a statement of the reasons why the matter could not as well be adjusted by transfer settlement after the expenditures have been made.
BURIAL EXPENSES_DECEASED OFFICERS AND ENLISTED MEN
OF MARINE CORPS.
The act of July 1, 1922, 42 Stat., 810, authorizes the incurrence at the expense
of the United States of the reasonable and necessary expenses of one appropriate permanent burial a deceased er or enlisted man of the Marine Corps coming within its terms, either at the home of the deceased or otherwise, inclusive of the expense of a temporary burial outside of the United States and of disinterment and transportation, or in the absence of such a temporary burial the expense of disinterment and trans
portation in addition to those of the permanent burial. What are reasonable and necessary expenses of one appropriate permanent
burial of an officer or enlisted man of the Marine Corps for the purposes of the act of July 1, 1922, 42 Statı, 810, is primarily an administrative matter and a subject for regulation