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A contract for the fiscal year 1920 was entered into by the same contracting parties under date of May 31, 1919, using the same form (Q. M. C. form 116) as that used in drawing up the contract of April 4, 1918. This contract was substantially identical with the contract of April 4, 1918, except there were added certain provisions with regard to "contingent fees," "adjustment of labor disputes," "law and restrictions relative to labor," also a provision that—

It is understood and agreed that the emergency surcharge of 5 mills per kilowatt hour granted by the Public Service Commission of Missouri shall apply to all service supplied at Jefferson Barracks from July 1st, 1919, to June 30th, 1920. On June 12, 1920, a contract was entered into for the fiscal year 1921, W. E. Mills, captain, Quartermaster Corps being the contracting officer on behalf of the United States, and a different "form" from that of the previous year was used. This contract provided for substantial changes in rates as compared with the original contract. Alternating current was to be charged for at a rate of $0.03166 per kilowatt hour for the first 150,000 kilowatt hours and $0.01166 per kilowatt hour for current in excess of 150,000 kilowatt hours. The rate for direct current for operating the elevator in the post. hospital was increased to 6 cents per kilowatt hour for the first 300 kilowatt hours, 5 cents per kilowatt hour for the next 300 kilowatt hours, and 32 cents per kilowatt hour for all over 600 kilowatt hours. The rate for current for pumping water was increased to 1.8 cents per kilowatt hour, the word "net" preceding "rate" being omitted. The contract contained the same provision for 25 per cent discount. There was also a provision that the rates to be paid for current furnished thereunder should be increased or decreased to conform to the schedule of rates, if any, thereafter received for file in authorized manner by the State Commission having jurisdiction. It also contained the provision for renewal, at the option of the United States, until June 30, 1929.

On May 25, 1921, a contract containing substantially the same provisions as the contract of June 12, 1920, though executed on a "form" different from the form used in any of the preceding contracts recited, was entered into for the fiscal year 1922, Walter Board, captain, Quartermaster Corps, being the contracting officer on the part of the United States.

It appears that in the administrative office questions arose (1) as to what discount the United States was entitled under the terms of the contract for the fiscal years 1921 and 1922, and (2) whether or not the increase granted on the pumping rate from 1.3 to 1.8 cents per kilowatt hour was binding on the United States; that the Judge Advocate General rendered an opinion June 24, 1922, that the United States was entitled to have electric current furnished it at the rates provided in the contract of April 4, 1918, subject to the discount

therein stipulated, and payment at other or different rates during the fiscal years 1920, 1921, and 1922 was unauthorized; that claims representing the difference between what was paid by the administrative office on bills for current furnished during the fiscal year 1922 and what the company claimed was due it under contract of May 25, 1922, were settled by this office; that the company declined to enter into a contract for the fiscal year 1923 at the rates stipulated in the contract of April 4, 1918; and that bills for current furnished during the period July 1, 1922, to March 31, 1923, were forwarded to this office for direct settlement.

In making the settlement now in question it was stated:

The only question involved is, Is the United States entitled to the rates set forth in the contract of April 4, 1918, up to and including June 30, 1929, as the result of section 13 of said contract? The question must be answered in the affirmative. The option contained in clause 13 of the contract of April 4, 1918, was a valuable right to which the United States is entitled. It can not be destroyed in the absence of valuable consideration moving to the United States in its stead. In the present instance there was nothing but a flat increase in rates to the detriment of the United States. Claimant has therefore been overpaid as follows:

By the War Department for the period July 1, 1919, to June 30, 1920
By the War Department for the period July 1, 1920, to June 30, 1921
By the War Department July 1, 1921, to June 30, 1922_
Overpaid by this office July 1, 1921, to June 30, 1922

Total overpaid_.

$3, 912. 40 2,735, 69 683. 16 1,487.70

8,818. 95

The amount overpaid by this office resulted when the provisions of contract of April 4, 1918, were inadvertently overlooked, although the principle involved in these payments was correctly interpreted at the time of payment. The question directly involved was whether the discount rate of 25% applied to bills submitted for water pumping service. It was held that the discount provision did not apply. This decision is adhered to. However, due to the fact that the rates were increased over the original contract rates, which was not discovered at the time, overpayment resulted.

Based on the rates of the contract of April 4, 1918, the claimant is entitled to $4,875.90 for current furnished since July 1, 1922. Since, however, the claimant company is indebted to the United States in the sum of $8,818.95 no payment can be made.

It is contended on behalf of claimant company that the contracts for the fiscal years 1920, 1921, and 1922 were each a new agreement and not a renewal of a prior agreement; that "each is a contract complete in itself, made by the same parties upon new bidding, and as a result of independent negotiations, and each covering completely the entire subject matter covered by earlier agreement;" that in addition to the changes in rates

numerous changes were made in the terms and conditions of the several contracts. The contract for the fiscal year 1919 contained a number of provisions (see sections 15 and 16 thereof) giving the Government authority to settle labor disputes not contained in the previous contract and which were a serious burlen upon the contractor. The contract for the fiscal year 1920 contained still different terms, clauses 15 and 16 giving the Government the advantage of any more favorable rate which might be available to the general public under any of the contractor's published tariffs. Further, an examination of the several contracts will show that the Government each year submitted a different

form, all containing substantial changes in previous provisions. These changes in the terms and conditions of the contracts afford ample consideration for the changes in rates.

It is further contended that service rendered subsequent to June 30, 1922, should be paid for either at the rates named in the contract of May 25, 1921, upon the theory that that contract is continued, and upon which basis the claim was presented, or, if it be held that said contract was terminated on June 30, 1922, then at the rates named in the tariffs and schedules on file with the Public Service Commission of Missouri.

The contract of April 4, 1918, called for service for the fiscal year 1919 at specified rates, and expressly provided for a yearly renewal, with all its covenants and agreements, at the option of the United States, so as to give continuous service, not extending, however, beyond June 30, 1929, and that the United States reserved the right to terminate the contract at any time within the period for which the contract was made or might be renewed by giving thirty days' notice to the contractor or its agent. It does not appear that the contract was so terminated. The option was a valuable right, to preserve which was the duty of the administrative officers concerned. The insertion in the contract for the fiscal year 1920 of provisions with respect to contingent fees, "adjustment of labor disputes," "law and restrictions relative to labor," is therefore held to be insufficient to support the added "emergency surcharge of 5 mills per kilowatt hour granted by the Public Service Commission of Missouri," and the different forms used for the contracts for the fiscal years 1921 and 1922 are ineffective to support the increased rates, The contracts for the fiscal years 1920, 1921, and 1922 are held to have been successive renewals of the contract of April 4, 1918, in which contract there was reserved no right on the part of the company to increase the rates if and when an increase should be authorized by the Public Service Commission of Missouri. The insertion of the reservation in any renewal of that contract by any officer of the United States was without legal authority and imposed no obligation on the United States to pay the increase.

Upon a review of the matter no differences are found, and the settlement is sustained.

Bills for service furnished subsequent to March 31, 1923, will be settled upon the basis of rates specified in the contract of April 4, 1918, the amounts so found due to be credited as a set-off against the amount found to have been overpaid until the same has been fully satisfied.

989449 O-52- --53

NAVY PAY-STEWARDS AND COOKS.

Enlisted men of the Navy holding certificates of qualification as stewards or cooks on June 30, 1922, the additional pay for which, when added to the pay they are otherwise lawfully in receipt of on that date, makes a total in excess of the total pay and allowances to which they would be entitled under the act of June 10, 1922, are permitted under section 16 of the act of June 10, 1922, 42 Stat., 632, to continue in receipt of the former pay plus the additional for qualification as stewards or cooks during their enlistment current on June 30, 1922, and so long as they retain their then grade or rating and continuously maintain the standard required for qualification as stewards or cooks.

Comptroller General McCarl to the Secretary of the Navy, June 22, 1923. I have your letter of June 9, 1923, as follows:

General Order No. 62 of 2 February, 1908, authorizes an additional pay of $5 per month to stewards or cooks, who may receive certificates of qualification, and requires that the certificate of qualification remain in force for a period of two years, and shall be renewed by the commanding officer at the expiration of these two years for a similar term if the performance of duty by the steward or cook so warrants.

Section 16 of the act of 10 June, 1922, provides that nothing contained in that act shall operate to reduce the total of the pay and allowances which any enlisted man of the Navy is now receiving during his current enlistment and while he holds his present grade or rating.

Your decision is requested as to whether a steward who holds a certificate of qualification under which he is receiving additional pay of $5 per month, and which additional pay is sufficient to bring his current pay above that authorized in the act of 10 June, 1922, and within the terms of section 16 of that act, will be entitled to continue in receipt of this additional pay when the certificate is renewed by his commanding officer for additional period of two years or until his current enlistment expires.

General Order No. 62, referred to, specifically provides:

Such additional pay to be of a permanent character as regular pay.

It is also noted that the renewal of the certificate of qualification is in effect made compulsory when the enlisted man has maintained the required standard.

Section 18 of the act of June 10, 1922, 42 Stat., 632, provides in part:

All laws and parts of laws authorizing extra pay for qualification for holding rated positions, except as otherwise specifically provided herein, are hereby repealed, to take effect July 1, 1922.

Section 16 of the same act provides in part:

and nothing contained in this act shall operate to reduce the total of the pay and allowances which any enlisted man of the • Navy

is now receiving during his current enlistment, and while he holds his present grade or rating.

The purpose of section 16 was to prevent the operation of the provisions of the act of June 10, 1922, during the enlistment current on June 30, 1922, provided the grade or rating held by an enlisted man on June 30, 1922, was not changed during said enlistment, if the operations of the provisions of the act of June 10, 1922 would, if applied, reduce the total of pay and allowances below the amount to which the enlisted man was entitled on June 30, 1922

The effect of section 16 is to confer on an enlisted man, on and after July 1, 1922, during his current enlistment and so long therein as he continues in the grade of rating held on June 30, 1922, the pay attached to that grade or rating on June 30, 1922, if that rate be greater than provided by the act of June 10, 1922.

By the very terms of General Order No. 62, the addition of $5 per month attaches to the pay of stewards and cooks so long as they maintain the required standard of qualification, and I am accordingly of the opinion that in a case such as cited by you the $5 is payable under the renewal of the certificate of qualification for so long as it remains in effect but not beyond the date of discharge from the enlistment current on June 30, 1922. A discharge from such an enlistment terminates the benefits conferred by section 16 of the act of June 10, 1922, and upon reenlistment the provision of section 18 of the act of June 10, 1922, applies to the new contract of enlistment and no payment for such a certificate is authorized.

COMPENSATION FOR OVERTIME EMPLOYEES IN EXECUTIVE DE

PARTMENTS.

Employees in the field service of the Bureau of Agricultural Economics, which is a bureau, and not an independent office, of the Department of Agriculture, are employees "in" an executive department, although they may be permanently stationed away from the seat of Government, and in the absence of statutory authority may not be paid for overtime. 2 Comp. Gen., 78, adhered to.

Comptroller General McCarl to the Secretary of Agriculture, June 26, 1923. I have your letter of May 31, 1923, requesting a reconsideration of my decision of August 5, 1922, 2 Comp. Gen., 78, to the effect that you are not authorized to fix the compensation of grain supervisors and grain samplers on a per diem basis for not less than seven hours' service between 6 a. m. and 6 p. m. and on an hourly basis of not exceeding six hours' service between 6 p. m. and 6 a. m. instead of on an annual basis as at present.

The request for a reconsideration appears to be based upon the assumption that the decision was predicated upon the premise that the employees in question are "employees of an executive department" whereas you contend that they are not employees in an executive department. In support of your contention you refer to 15 Op. Atty. Gen., 262; 26 id., 209; and 27 id., 421. Each of the authorities referred to has been examined and it is found that in none of them was the question here presented involved. The question as to the status of field service employees was discussed more or less in each of these authorities and the rule as gathered therefrom may be stated as follows:

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