Page images
PDF
EPUB
[blocks in formation]

The granting under authority of section 15 of the Federal Highway Act of 1940 of a percentage differential of the base pay incident to the assignment of an employee from the continental United States for engineering services outside the continental United States is not an "equivalent increase in compensation" within the meaning of section 2 of the uniform within-grade salary-advancement statute of August 1, 1941, and does not affect the employee's eligibility to a within-grade salary advancement under the latter act. Decision B-20925, October 27, 1941, 21 Comp. Gen. 369, distinguished. Where an employee is transferred to a position in a higher grade resulting in an increase in compensation equivalent to the amount of the salary step in the lower grade, and, upon completion of the assignment in the higher grade, is returned to his former salary and grade the employee is not eligible for a within-grade salary advancement under the act of August 1, 1941, until the beginning of the next quarter after the lapse of 18 or 30 months (as the case may be) from the time he received the equivalent increase in compensation when transferred to the higher grade.

Comptroller General Warren to the Federal Works Administrator, November 22, 1941:

I have your letter of November 8, 1941, as follows:

In the administration of the "salary advancement" plan provided by the act of August 1, 1941 (Public 200, 77th Congress, 1st Session), some doubt has arisen as to the correct construction to be placed upon seeming conflicts in the interpretation of statutes applicable to this Agency which are herewith presented for your consideration.

Section 15 of the Federal Highway Act of 1940 (c. 715, #15, 54 Stat. 867, 871), authorizes the Public Roads Administration, with the approval of the Federal Works Administrator, to increase the compensation by not to exceed 25% of the base pay of any of its employees and of persons appointed under schedule A, subdivision I, paragraph 7, of Civil Service Rules, assigned to perform engineering services beyond the continental United States for any Agency or governmental corporation of the United States.

A provision similar in purpose is provided by title II of the act of November 26, 1940, extending the Classification Act (Public 880, 76th Congress, 3rd Session, c. 919, #3c, 54 Stat. 1211, 1213). That act provides as follows:

"Whenever the President, upon report and recommendation by the Commission, shall find and declare that the rates of the compensation schedules of the Classification Act of 1923, as amended, are inadequate for any offices or positions under such act, as amended and extended, he may by Executive order establish necessary schedules of differentials in the rates prescribed in such compensation schedules, but the differentials in the compensation of any such office or position shall not exceed 25 per centum of the minimum rate of the grade to which such office or position is allocated under such compensation schedules: Provided, That the provisions of this subsection shall be applicable only to such offices or positions having the following characteristics:

"Offices or positions which are located at stations that are isolated, remote, or inaccessible when compared with stations at which offices or positions of the same character are usually located, or which involve physical hardships or hazards that are excessive when compared with those usually involved in offices or positions of the same character, or which are located outside the States of the United States and the District of Columbia: Provided further, That nothing herein contained shall preclude the Commission from taking the factor of isolation, hardship, hazard, or foreign service into consideration in allocating a given class of offices or positions to a service and grade under the Classification Act of 1923, as amended, if such factor is uniformly involved in each office or position in the class, in which event no differential is authorized under this section."

[ocr errors][merged small]

*(b) All employees rumpensated at i per annum bass and over NO manent positions within the scope of the compensatio schedules and Ayns act, who have it attained the runnin rate of superstin for the gride in which their postios are DESCHALTETLGAS

tion successively to the best higher rate within the crude at the beginning of the Lert gene filling the singiem z of

service if such explijes de i miles a vhè the empezaDIE INNEes are 800 or $100, or 121 eat thing maths & save of soch empires are in grades in which the compeutic benelects are $1 or £250 subject to the following ecndities:

"(1) That Lo equivalent tresset emjersinio fe af die was received during such period, ent increase mike poroant to subsection (D) of this section :

*te) Employees eligible moder subsection for amperstin advan ment by reason of service inmellately preveding the effective date of this amendment shall be advanced to the next higher rate of compensation within the grade to which their positions are respectively allocated at the beginning of the next quarter immediately following the effective date of this amendment. "(f) Within the limit of available appropriations, and in ravgnition of especially meritorious services, the head of any department or agency is authorized to make additional within-grade compensation advano ments but any such additional advancements shall not exceed one step and no employee shall be eligible for more than one aditional advancement hereunder within each of the time periods specified in subsection (b. All actions under tals subsection and the reasons therefor shall be reported to the Civil Service Commission. The Commission shall present an annual consolidated report to the Congress covering the numbers and types of actions taken under this subsection.

"(g) The President is hereby authorized to issue such regulations as may be necessary for the administration of this section.”

"SEC. 7. There are hereby authorized to be appropriated such sums as may be necessary to carry the provisions of this act into effect.

"SEC. 8. Insofar as they are inconsistent or in conflict with prior laws, the provisions of this act shall control."

The Executive order of September 3, 1941 (No. 8882), promulgated by the President pursuant to the act of August 1, 1941, supra, provides insofar as herein pertinent as follows:

"SECTION 1. In the administration of the said section 7, the following definitions of terms used therein shall apply:

"(a) 'Permanent positions' shall include all positions except those designated as temporary by law and those established for definite periods of six months or less.

"(b) 'Positions within the scope of the compensation schedules fixed by this act' shall include all permanent positions, including positions in the field services, in the executive and legislative branches, in government-owned or government-controlled corporations, and in the municipal government of the District of Columbia, the compensation of which has been fixed on a per-annum basis, pursuant to the allocation of such positions to the appropriate grade either by the Civil Service Commission or by administrative action of the department or agency concerned, in accordance with the compensation schedules of the Classification Act of 1923, as amended, or the said schedules as adjusted by an authorized differential." [Italics supplied.]

"(c) 'Quarter' shall mean the three months' period beginning on January 1, April 1, July 1, or October 1.

"(d) Equivalent increase in compensation' shall mean any increase or increases which in total are equal to or greater than the compensation increment in the lowest grade in which the employee has served during the time period of eighteen or thirty months, as the case may be.

"(e) Current efficiency' shall mean the latest efficiency rating on record for the employee, made under a system of efficiency ratings prescribed or approved by the Civil Service Commission."

It would appear from a reading of the provisions of the statutes and Executive order cited above to have been the intention of Congress that the granting of a pay differential for foreign service under the provisions of the Federal Aid High...

Accordingly, the determination of whether the payment of such expenses by the contractor was in the nature of a gratuity, the cost of which must be assumed to have been included in one of the several fixed fees, or whether the Government was contractually obligated to reimburse the contractor for such expenses, as being either required or reasonably implied in the satisfactory performance of the work, necessarily is dependent upon the terms of the contract, considered in the light of the indicated intentions of the parties.

* *

In the interpretation of the provisions of the cost-plus-a-fixed-fee form of contract, it is appreciated that this type of contract establishes the basis for a highly cooperative undertaking between the contractor and the Government and that such provisions require and are entitled to a liberal construction; that if the intent of the parties cannot be determined from the express provisions of the contract, the practical interpretation of the contracting parties is of great weight, if not controlling, in ascertaining their intention at the time of its execution; that the enumeration in the contract of the various particular items of cost as to which reimbursement is authorized is not intended to be exclusive of other items which may arise and which may not be expressly provided for; and that, as stated in my decision of April 14, 1941, 20 Comp. Gen. 632, 636, "the contract basically contemplates that the actual cost of the whole work and the risk thereof are to be assumed by the Government; that is, that the contractor is to come out whole in performing the work in accordance with the contract * *." However, it was not intended in that decision, nor is it the view of this office, that, as suggested by you, any and every expense incurred by the contractor incidental to the performance of the work required under the contract, regardless of how remotely connected therewith, is to be reimbursed by the Government, "and any exceptions must be specifically set forth in the contract itself." It must be presumed that certain of the expenses incurred were intended to be borne by the contractor and paid from the gross profit derived from the contract, and as included in the fixed fee. While it is recognized that no general rule may be laid down which will fit all circumstances which may arise, it would appear that, to be reimbursable by the Government, as expense incurred by the contractor, not otherwise specifically provided for, must be shown to be reasonably incident to the performance of the work and to serve a useful purpose in fulfilling the contract requirements.

Title III, article III-A, of the contract here involved lists the various items of expenditures for which the contractor will be reimbursed by the Government; and it appears to be conceded that only section 1-f thereof bears any reasonable relationship to the type of expense here involved. While the said section authorizes reimbursement for

"transportation and traveling expenses to and from the work of the necessary field forces and for "such portion of the transportation, traveling, hotel, and other expenses of officers, engineers and all other employees of the Contractor as is actually incurred in connection with the work under this contract," there was nothing in the record before me when the decision of August 4, 1941, was rendered to indicate that the term "other expenses" was intended to include the expense of moving families and household effects to and from the site of the work.

However, it now appears from your above-quoted letter and the papers transmitted therewith that the parties to the contract actually contemplated the incurrence by the contractor of the expenditures involved and that the amount thereof would be reimbursed by the Government. Accordingly, on the basis of the facts now of record, you are advised that this office will not be required to object to the reimbursement of the contractor for these expenses incurred on behalf of its employees, provided such expenses are properly substantiated, are approved or ratified by the contracting officer, and are verified in accordance with the terms of the contract.

(B-21534)

COMPENSATION-OVERTIME-NAVY DEPARTMENT PER ANNUM

FIELD EMPLOYEES

Since per annum field employees of the Navy Department are not entitled to the overtime compensation authorized by the act of June 3, 1941, unless the overtime work is essential to and directly connected with the expeditious prosecution of the overtime work of employees enumerated in section 5 (a) of the act of June 28, 1940, for which they are being paid overtime compensation, and since enlisted personnel of the Navy are not within the enumerated class and are not paid overtime compensation, said per annum employees are not entitled to overtime compensation for overtime work essential to and directly connected with work of said enlisted personnel.

Comptroller General Warren to the Secretary of the Navy, November 21, 1941: I have your letter of October 29, 1941, reference LL/L164(11) (410801)S, as follows:

The Act of June 3, 1941 (Public Law 100, 77th Congress), reads in part that: "Compensation for employment in excess of forty hours in any administrative workweek computed at a rate of one and one-half times the regular rate is hereby authorized to be paid, under such regulations as the President may prescribe, to those per annum employees in the field service of the War Department, the Panama Canal, the Navy Department, and the Coast Guard, whose overtime services are essential to and directly connected with the expeditious prosecution of the overtime work upon which the employees enumerated in section 5 (a) of the act of June 28, 1940, * # are engaged."

Executive Order No. 8837, approved July 30, 1941, promulgated the regulations for the administration of the cited act. The Secretary of the Navy, by letter of August 2, 1941, delegated to commandants and commanding officers the administrative authority to determine the per annum employees required to work in excess of forty hours a week and the number of hours a week that

Since the promulgation of Executive Order No. 8837 and the directive of the Secretary of the Navy in letter of August 2, 1941, above mentioned, numerous questions have arisen concerning the right to overtime compensation of those per annum employees on duty at naval stations and independent offices where there are no employees of the classifications mentioned in Public Act 671, 76th Congress, approved June 28, 1940.

These questions arise by reason of the provisions in Public Law 100, 77th Congress, supra, restricting the overtime pay to those employees "whose overtime services are essential to and directly connected with the expeditious prosecution of overtime work upon which the employees enumerated in section 5 (a) of the act of June 28, 1940 are engaged," and involve overtime employment at Naval Air Stations where the assembly and repair of airplanes is performed entirely by enlisted men.

*

*

As the entire effort of the field services of the Navy Department is now devoted to the national defense program, a broad interpretation of the term "essential to and directly connected with the expeditious prosecution of overtime work" would authorize payment of overtime compensation to any group of IVb employees in the field services of the Navy Department wherever located, provided of course that it was administratively determined that the overtime work being performed was essential to and connected with overtime work with relation to the national defense.

In view of the foregoing, your decision is requested as to whether, under the terms of Public Law 100, 77th Congress, and of Executive Order No. 8837, the Secretary of the Navy is authorized to pay overtime compensation to per annum employees of the field services of the Navy Department employed overtime under the following conditions:

"At Naval Air Stations where there are no employees of the classes mentioned in section 5 (a) of the act of June 28, 1940, the work normally performed by this class of civilian employees now being performed exclusively by enlisted men."

By direction of the Secretary of the Navy:

The following classes of employees are enumerated in section 5 (a) of the act of June 28, 1940, 54 Stat. 678:

monthly, per diem, hourly, and piece-work employees, whose wages are set by the act of July 16, 1862 (12 Stat. 587), as amended or modified; and also to professional and subprofessional employees and to blueprinters, photostat and rotaprint operators, inspectors, supervisory planners and estimators, and supervisory progressmen, and assistants to shop and plant superintendents of the CAF service, as defined by the Classification Act of March 4, 1923 (42 Stat. 1488; U. S. C. 5, ch. 13), as amended:

Sections 1 and 4 of Executive Order No. 8837 issued under the act of June 3, 1941, Public Law 100, provide as follows:

SECTION 1. Whenever the Secretary of War, the Secretary of the Navy, the Secretary of the Treasury, or the Governor of The Panama Canal, as the case may be, shall determine that employment in excess of forty hours a week of any per-annum employee in the field services of the War Department, the Navy Department, the Coast Guard, or The Panama Canal is essential to and directly connected with the expeditious prosecution of overtime work which is being required of employees enumerated in section 5 (a) of the said act of June 28, 1940, and section 1 of the said act of October 21, 1940, and for which overtime compensation is being paid, he is authorized to provide compensation for such employment in excess of forty hours in any administrative workweek at one and one-half times such employee's regular rate of pay. [Italics supplied.]

SECTION 4. No overtime compensation may be paid under section 1 hereof to any per-annum employee who during his regular hours of employment is not normally engaged on work essential to and directly connected with the expeditious prosecution of the work upon which employees enumerated in section 5 (a) of the said act of June 28, 1940, and section 1 of the said act of October 21, 1940, are engaged.

The act of June 3, 1941, Public Law 100, 55 Stat. 241, and the Executive order issued thereunder are not mandatory but vest a

« PreviousContinue »