*

less than $30 for the period following the period of combined study and practice and prior to graduation, or will transfer such student, after completion of the period of combined study and practice and prior to graduation, for training in some other institution, but only if such training may be credited toward graduation, and the institution to which the nurse is transferred agrees to pay her a stipend at a monthly rate of not less than $30 until graduation; * * * The "War Overtime Pay Act of 1943" approved May 7, 1943, 57 Stat. 75, Public Law 49, is applicable "to all civilian officers and employees * in or under the United States Government" with certain express exceptions not here applicable, and the overtime compensation is authorized by the law to be paid in addition to "basic rate of compensation not in excess of $2,900 per annum." It is quite evident from the terms of the act of June 15, 1943, that "student nurses" are not to be regarded as officers or employees in or under the United States Government, the purpose of the law essentially being the training of nurses to equip them for future employment by the Government. Compare decisions considering the status of security wage workers or project workers (15 Comp. Gen. 1129; 19 id. 383), enrollees of the Civilian Conservation Corps (17 Comp. Gen. 276, 578), and "needy college students" (17 Comp. Gen. 904).

Accordingly, I am in agreement with the views expressed in the concluding paragraph of your letter and, accordingly, it is concluded that student nurses coming within the act of June 15, 1943, are not within the purview of the War Overtime Pay Act of 1943.

(B-32728)

QUARTERS AND SUBSISTENCE ALLOWANCES-ARMY ENLISTED MEN— CONTINUANCE WHILE PRISONER OF ENEMY

Under section 2 of the act of March 7, 1942, providing that any person in active service who is officially reported as missing, missing in action, interned in a neutral country, or captured by the enemy, etc., shall be entitled to receive or have credited to his account the same pay and allowances to which such person was entitled at the beginning of the absence, the fact that an enlisted man, at the time he was taken prisoner by the enemy, had not theretofore actually received payment of or credit for quarters and subsistence allowances to which he was entitled would not affect his right to have such allowances paid or credited for the period of his absence. Assistant Comptroller General Yates to Col. Tom E. Thrasher, Jr., U. S. Marine Corps, November 11, 1943:

Reference is made to your letter of February 24, 1943, transmitting for decision a voucher stated in favor of Technical Sergeant Loren Oscar Schneider, U. S. Marine Corps, for subsistence and quarters allowance for the period November 28, 1941, to June 28, 1942, prior to and while being held a prisoner by the Japanese military authorities at Shanghai, China. The circumstances are stated in your letter as follows:

It appears that the attached claim is submitted under the provisions of Section 2 of the Act of March 7, 1942, Public Law 490, 77th Congress, which provides that: "Any person who is in active service and is officially reported as

captured by an enemy shall, while so absent, be entitled to receive or to have credited to his account the same pay and allowances to which such person was entitled at the time of the beginning of the absence or may become entitled to thereafter:

As indicated in the attached papers, Technical Sergeant Schneider (then Staff Sergeant), together with one officer and two enlisted men, remained at Shanghai, China, after the evacuation of the Fourth Marines on November 28, 1941, for the purpose of closing out the activities of the Regimental Quartermaster, Fourth Marines, and was taken a prisoner of war by the Japanese military authorities on December 7, 1941. He was subsequently released from internment by the Japanese military authorities and sailed from Shanghai, China, on June 29, 1942, and arrived in the United States on August 25, 1942. SCHNEIDER's pay account was taken up on the rolls of this office and credited pay for the period November 1, 1941, to August 31, 1942, inclusive, in accordance with the provisions of Section 11 of the Act of March 7, 1942, supra, on Voucher No. 1500 (Account No. 132), in the account of the undersigned for the month of August 1942. No credit for quarters and subsistence allowance was made during the period covered by the attached voucher in view of the fact that this office had no knowledge that a quarters and subsistence allowance had been authorized to be paid to these enlisted men.

In view of the foregoing and of the fact that no quarters and subsistence allowance was actually being credited in SCHNEIDER's pay account at the time he was taken prisoner by the Japanese military authorities doubt exists as to whether I am authorized to make payment on the attached voucher. Your decision is therefore requested in the premises.

In support of the voucher there is attached the certificate of Colonel S. C. Cummings, U. S. Marine Corps, Acting Adjutant and Inspector, as follows:

I certify that the records of this Headquarters show that the below named enlisted men remained at Shanghai, China, for the purpose of closing out the activities of the Regimental Quartermaster, Fourth Marines, upon the evacuation of that organization from Shanghai, China, on November 28, 1941:

Supply Sergeant Henry KIJAK, U. S. M. C. (225304)

Staff Sergeant Loren Oscar SCHNEIDER, U. S. M. C. (201144)
Sergeant Nathan Alexander SMITH, U. S. M. C. (262053)

I further certify that the records show that pursuant to a radio request of the Commanding Officer, Fourth Marines, dated November 23, 1941, the Commandant, U. S. Marine Corps, on November 26, 1941, authorized the payment of a quarters and subsistence allowance to the above named men for such duty; that no quarters were available or furnished or rations in kind furnished; that these men were interned by the Japanese Military Authorities on December 7, 1941; that they were released from internment on June 29, 1942; that they embarked on the S. S. CONTE VERDE at Shanghai, China, on June 29, 1942, for transportation to the United States, and arrived in the United States on August 25, 1942.

It thus appears that payment of an allowance to Sergeant Schneider for quarters and subsistence was authorized under date of November 26, 1941, and that he was entitled to such allowance on December 7, 1941, when he was taken a prisoner of war by the Japanese military authorities. It further appears that he was released from internment by the Japanese on June 29, 1942, whereupon he returned to the United States, arriving August 25, 1942.

It is stated that Sergeant Schneider has been credited with pay for the period while he was a prisoner of war, but that no credit for quarters and subsistence allowance was made for such period for the reason that the authorization of such allowance was not known.

Your doubt in the matter apparently is due to the fact that no part of such authorized allowance actually had been paid or credited in

Sergeant Schneider's pay account at the time he was taken prisoner by the Japanese military authorities; that is, while the allowance had been authorized, it had not been paid or credited for any period before he was taken prisoner, and, hence, he actually was not in receipt of such allowance at the time.

Section 2 of the act of March 7, 1942, 56 Stat. 143, 144, provides, in pertinent part:

Sec. 2. Any person who is in active service and is officially reported as missing, missing in action, interned in a neutral country, or captured by an enemy shall, while so absent, be entitled to receive or to have credited to his account the same pay and allowances to which such person was entitled at the time of the beginning of the absence or may become entitled to thereafter

Thus the said section, by express language, authorizes the payment or crediting of the same pay and allowances to which the person “was entitled" at the time of the beginning of the absence. The test is not the pay and allowances actually paid but the pay and allowances to which the person was entitled at the beginning of the absence. The fact that the person had not theretofore actually received payment of an allowance to which he was entitled would not affect his right to have such allowance paid or credited for the period of his absence pursuant to the express provisions of the said act of March 7, 1942.

Accordingly, since the record establishes that at the time of the beginning of the absence of Sergeant Schneider he was entitled to an allowance for subsistence and quarters, payment on the voucher is authorized, if otherwise correct. See 22 Comp. Gen. 192, and decision of February 17, 1943, B-28935. Cf. decision of September 20, 1943, B-35985, 23 Comp. Gen. 207. The voucher and supporting papers are returned herewith.

(B-36819)

CONTRACTS-COST-PLUS-EXCESSIVE WAGE RATES PAID BY LUMP

SUM SUBCONTRACTORS

Where a cost-plus-a-fixed-fee prime contract provided that the contractor shall not pay wage rates in excess of those set forth in the contract except upon approval in writing by the contracting officer, but contained no limitation with respect to wage rates which may be paid employees of lump sum subcontractors, the prime contractor may be reimbursed amounts paid under the subcontracts notwithstanding the fact that the subcontractors' employees may have been paid wages computed at rates in excess of those specified in the prime contract. 22 Comp. Gen. 367, distinguished.

Comptroller General Warren to Millard F. Reeves, National Housing Agency, November 11, 1943:

Reference is made to your letter of September 2, 1943, as follows:

The principal contract for the construction of War Housing Projects, VA44244, VA-44248 and VA-44249 was awarded to Allen J. Saville, Incorporated, and an executed copy of Contract No. HA (VA–44244)–cph-101 dated January 26, 1943 was previously transmitted to your office.

Certain portions of the construction work covered by the principal contract were sublet by Allen J. Saville, Incorporated to several subcontractors on lump sum basis. It has been observed that several of the subcontractors operating

under those lump sum subcontract Agreements, have made payments to their skilled and unskilled labor for wages at rates substantially in excess of the wage rate schedule set forth in the principal contract as authorized by the Secretary of Labor under the Davis-Bacon Act.

For example, Cross and Taylor, Brickwork Subcontractor, copy of whose agreement has been furnished your office, have continuously paid bricklayers the base rate of $1.621⁄2 per hour, and occasionally $1.75, whereas, the wage rate schedule in the contract includes bricklayers at $1.50 per hour. This subcontractor, however, claims that they have paid the rate of $1.62% per hour for bricklayers for a period of several months prior to the execution of this present subcontract. Various others, including, A. L. Wright, Jr., Plumbing and Heating Subcontractor, have paid wage rates that are in excess of the contract rate established for various skilled and unskilled labor classifications.

Attention is directed to the fact that the subcontracts were executed on lump sum basis and also the fact that there have been wage rates paid by lump sum subcontractors which are in excess of the approved rates established in forming a part of the Principal Contract involved.

It is requested that you furnish this office with your opinion as to whether suspension should be made from reimbursement to Allen J. Saville, Incorporated to equal the amount of wages paid by subcontractors which are in excess of the rates established within Principal Contract. In other words, information is desired as to whether your decision B-25275 rendered on October 19, 1942 is considered to cover this situation.

There is still considerable subcontract work to be performed and there are yet considerable amounts for which the principal contractor has not claimed reimbursement covering subcontract work completed to date. However, in order that the interests of the Government may be protected and at the same time to avoid delays in future reimbursement in so far as possible, your decision in the matter at the earliest date will be appreciated.

The right of a certifying officer to request a decision is derived solely from, and is limited by, the provisions of the act of December 29, 1941, 55 Stat. 875, section 3 of which is as follows:

Sec. 3. The liability of certifying officers or employees shall be enforced in the same manner and to the same extent as now provided by law with respect to enforcement of the liability of disbursing and other accountable officers; and they shall have the right to apply for and obtain a decision by the Comptroller General on any question of law involved in a payment on any vouchers presented to them for certification. [Italics supplied.]

It may be noted that under the above cited section of the statute a certifying officer is entitled to obtain a decision by the Comptroller General only on a question of law involved in payment on a specific voucher presented to him for certification. See 21 Comp. Gen. 1128. While no voucher pertinent to the question raised accompanied your letter to this office, the inference is that such a voucher has been presented to you for certification. Under such circumstances, and in view of your request for early disposition of the matter "in order that the interests of the Government may be protected and at the same time to avoid delays in future reimbursement," the failure to submit a voucher will not be objected to.

Under the terms of contract No. HA (VA-44244)-cph 101, dated January 26, 1943, entered into on a cost-plus-a-fixed-fee basis, the contractor agreed to perform the professional architectural and engineering services; furnish materials not otherwise provided, and perform the work for the construction of buildings, site improvements and utilities for certain war housing projects in Portsmouth, Virginia.

The General Conditions of the contract provide, in pertinent part, as follows:

6. CONTRACTOR'S CONSTRUCTION COST

Production Cost

(b)

The items for which the Contractor shall be entitled to reim

bursement as production cost shall be as follows:

(2) Expenditures for salaries and wages paid to employees whose services are devoted exclusively to the performance of the contract Wage rates higher than those set forth in the Contract shall not be paid except upon approval, in writing, by the Contracting Officer.

*

(14) Expenditures under subcontracts, including fees to cost-plus-a-fixed-fee subcontractors, unless otherwise specified in this contract.

8. CONSTRUCTION SUBCONTRACT WORK AND PAYMENTS THEREFOR CONSTRUCTION (a) Subcontractors for the performance of any construction activity shall receive recognition only as employees or service organizations of the Contractor. (b) Subcontract work may be contracted for by the Contractor with the approval of the Contracting Officer under any form of agreement, except on a cost-plus-a-percentage basis, determined by the Contractor and the Contracting Officer to be most suitable and desirable for the fulfillment of the Contractor's obligations to the Government, but subject to the condition that prior to becoming effective for the purposes of the contract with the Government the form, substance, and amount of each subcontract shall be approved in writing by the Contracting Officer

**

(f) The Contractor shall not award any work to any subcontractor without prior written approval of the Contracting Officer, which approval will not be given until the Contractor submits to the Contracting Officer a written statement concerning the proposed award to the subcontractor, which statement shall contain such information as the Contracting Officer may require.

(g) All subcontracts arranged upon a lump-sum basis shall be deemed to include all items of cost of the performance thereof and all allowances for equip ment charges, insurance, overhead, anticipated profits and all other expenses of whatever sort unless and to such extent as may be enumerated in the applicable subcontract to the contrary.

The decision of October 19, 1942, B-25275, 22 Comp. Gen. 367, referred to in your letter, gave consideration to a cost-plus-a-fixed-fee contract which contained the specific provision that:

Should the Contractor or any subcontractor pay to any laborer or mechanic a wage based upon a rate in excess of the wage rate for the classification in which said laborer or mechanic is included as established for the work by the Secretary of Labor, such increased wage shall be at the expense of the Contractor and shall not be reimbursed by the United States. * *

The above provision was held to be applicable to lump-sum, as well as cost-plus-a-fixed-fee subcontracts and, since the Government had acquired the right to have the prime contractor furnish all labor necessary for the performance of the work covered by the subcontract at the wage rates established by the Secretary of Labor, the approval of the subcontract there involved by the contracting officer was not recognized as imposing any binding obligation on the United States to pay for work performed thereunder at a contract price which was presumed to have included wage rates higher than those established by the Secretary of Labor.