leasing any other space available in the District of Columbia or nearby vicinity there would appear to be no legal objection to the Commissioner of Public Buildings, Public Buildings Administration, Federal Works Agency, entering into a new lease for the building at an annual rental of $19,500, and otherwise upon the terms and conditions as stated in the second paragraph of your letter.

(B-22508)

LEAVES OF ABSENCE-ANNUAL-PER ANNUM EMPLOYEES ON 39-HOUR 5-DAY WORK WEEK

Where there has been administratively established a 5-day 39-hour week-Monday through Friday-for per annum field employees who formerly worked 39 hours per week-Monday through Saturday-Saturday is thus established as a nonwork day by "administrative order" requiring its exclusion in the charging of leave, and, therefore, such employee should be charged with only 5 days of annual leave for a week's absence and not for 5 days, as was required under the former workweek.

Comptroller General Warren to the Secretary of War, December 31, 1941:

By second indorsement, dated December 8, 1941, you forwarded here for consideration letter dated October 28, 1941, from Lt. Col. F. J. Keelty, Finance Department, U. S. Army, requesting decision on a matter therein presented, as follows:

1. For reasons hereinafter stated, your advance decision is requested, under authority of the act of July 31, 1894 (28 Stat. 207, 208), as to which one of the two vouchers hereto attached, both stated in favor of Albert J. Fedalei, one in the net sum of $649.50 and the other in the net sum of $743.06, and both purporting to cover the money value of commuted leave due Mr. Fedalei on his entrance into military service on May 2, 1941, and the leave deemed to have accrued on such leave after said date, should be paid under authority of the Act of August 1, 1941 (Public, #202, 77th Congress). It is realized that submitting two alternative vouchers is most unusual, but it is hoped that the facts as hereinafter stated will warrant such procedure, particularly since the form of voucher used does not provide for a signature by the payee. The vouchers are in agreement as to the amount of leave that had accrued to Mr. Fedalei at the time of his entrance into military service, which amount is stated thereon as 53 days, 2 hours, and 24 minutes, but otherwise they differ materially as to the manner of computing the leave and the amount thereof. These vouchers are before me as a disbursing officer of the United States, and I am in doubt as to which voucher is the correct one to pay. Mr. Fedalei, now on active duty as a major in the Finance Department of the Army, is of the opinion that he is entitled to the larger net sum of $743.06, whereas the undersigned is in doubt as to whether any net payment in excess of $649.50, the amount shown on the other voucher, is correct. Inasmuch as the vouchers relate to leave accrued by Mr. Fedalei while a civilian employee of this office, they are for administrative certification by the undersigned on the reverse side thereof, but by reason of my doubt, I have not certified either of them, desiring to wait until your decision shall have been rendered, which it is hoped that you will be willing to do without the certification on the vouchers. 2. The facts giving rise to my doubt are stated hereinafter as briefly as may be under the circumstances, but to enable you to assign the proper importance or value to each fact as it is set out, it is stated that the general question underlying my doubt is as follows: Should per annum employees of this office who, for many years, have worked 39 hours per week, first on the basis of five 7-hour days with 4 hours on Saturday, with a charge of 5 days' leave for one full week's authorized absence, and later on the basis of four 8-hour days and one 7-hour day per week, with no work on Saturday, continue to be charged for leave purposes while on the later basis with 5 seven-hour days per week for one week's authorized

absence, or should such employees, during the period of Mr. Fedalei's claim, be considered to have been working on a five-day week, requiring only a charge of five days against leave for a week's authorized absence, although still required to work 39 hours per week? If it was correct to charge such per annum employees with only five days against their leave to cover one full week's absence, then the sum which Major Fedalei considers correct, $743.06, is for payment, whereas if, during the period of his claim, they were to be regarded as still 39-hour-per-week employees, regardless of the fact that as a matter of administrative convenience, and by the use of days of different length, the 39 hours per week were put in in the first five work days, and they are still to be charged against leave with 5 seven-hour days for one week's absence, then the lesser amount of $649.50 is payable. Incidentally, the computations under the $649.50 voucher, made by this office, involve no charge against leave for Sundays or holidays, and include full payment for such days.

3. For many years prior to August 3, 1934, the civilian personnel of the Finance Office, U. S. Army, Philadelphia, worked a 39-hour week, 7 hours on each of the first five days of the week, and 4 hours on Saturday. When any personnel took, say, a week's leave, they were charged with 5 days. Prior to July 31, 1934, and for several years thereafter, the Finance Office, U. S. Army, in this city, was located within the compound of the Philadelphia Quartermaster Depot; in fact, in July 1934, and for a considerable period thereafter, it occupied space in the Administration Building of that Depot. In July 1934, the Commanding Officer of the Philadelphia Quartermaster Depot, for reasons which he deemed sufficient, requested authority to put the per diem employees of that Depot on a five-day, 40-hour week, with no work on Saturdays, and this authority was granted by the War Department. The Depot then realized that, with respect to its relatively few per annum employees-that is, few when considered in connection with its per diem employees-it was a waste of heat, light, water, and general caretaking to keep the per annum employees working on Saturday mornings, and, accordingly, permission was procured from the War Department to eliminate work by per annum employees on Saturday morning. Accordingly, Depot Order #26 of July 30, 1934, was issued, in which it was stated that, effective July 30, 1934, the Secretary of War directed (July 25, 1934) that that Depot would operate on a five-day, 40-hour week basis, under the provisions of Section 23, Public 141, 73d Congress, and subsequent interpretations of the Comptroller General, except that employees who now (then) work "on a 39-hour week, 7 hours on five days and 4 hours on 1 day, will work 8 hours on four days and 7 hours on one day." [Italics supplied.] It will be seen that in this Depot Order, there is no establishment of a five-day week for per annum employees working 39 hours per week, but only a direction as to how the 39 hours' work would be performed without working on Saturdays.

4. The finance officer then in charge of this office took up with the Chief of Finance on July 31, 1934, the question of hours of labor for his employees-all of them being per annum employees-and after referring to the new order with respect to office hours that had been put into effect by the Quartermaster Depot in whose compound his office was serving, he requested that authority be given him to put into effect the "five-day week" for the personnel of his office so that the hours of labor would be identical for both offices. This is the first reference in the record to a five-day week for per annum employees, and since it was coupled with the statement that the purpose thereof was that the hours of labor for the finance office would be the same as the hours of labor of the per annum employees of the Quartermaster Depot, it would appear that this request by the finance officer might reasonably be construed with reference to the order that had been issued by the Depot, in which no mention of a five-day week had been made with respect to per annum employees, but only a new procedure for obtaining 39 hours' work each week from such employees.

5. On August 3, 1934, the chief of finance wired the finance officer in Philadelphia as follows: "Your recommendation July 31 that your office operate on five days a week consisting of 39 hours from Monday to Friday being approved this date." [Italics supplied.]

6. The foregoing statements constitute the only authority found for the nonwork status on Saturday mornings of the 39-hour-per-week-per-annum employees of the Finance Office at Philadelphia; and the practice of working 8 hours on each of the first four working days of the week and 7 hours on the fifth (Friday) continued during the period of Major Fedalei's claim.

7. On June 5, 1936, War Department Circular #34 was issued, which_quoted certain excerpts from the Act of March 14, 1936, entitled "An Act to Provide for Vacations for Government Employees and for other P " and certain

groupings of employees by the Civil Service Commission, as required by law. In designating the groups hereinafter indicated, the Civil Service Commission recommended the adoption of standard hours of labor where not inconsistent with law. The groups of employees named by the Civil Service Commission, as shown from the following direct quotation from the Order, were as follows: "Employee Group 1. Duty of 7 hours per day with 39 hours per week. "Employee Group 2. Duty of 8 hours per day with 40 or 44 hours per week. "Employee Group 3. Duty of an average of 8 hours per day or an average of 44 hours per week with the enforcement of this average spread over a 3 months' period *

In Employee Group 1 were included by the Civil Service Commission in the same circular "Office workers in general," and in paragraph 4 of the same circular, the War Department "approves of the foregoing schedules and recommendations of the Civil Service Commission and hereby adopts them as its hours of labor regulations required by the Act above quoted, to be enforced uniformly everywhere beginning July 1, 1936," with a certain proviso not here material. The War Department circular also provided in paragraph 5 of section 1 thereof that any departure from the foregoing schedule would be made only with the approval of the Secretary of War, and that recommendations therefor should include a full and convincing statement of the reasons. It is also for noting that the act of March 14, 1936, above cited provides in section 2 thereof that "all employees, temporary or permanent, in all departments * * shall receive like treatment as nearly as may be practicable." Nothing has been found of record to show that the matter of office hours of this office was ever taken up with the War Department as provided in section 5 of the circular just cited.

8. It would appear that notwithstanding the provision requiring 39 hours work per week of the employees of this office, the practice was early established by the personnel branch of this office after July 31, 1934, of charging only 5 days leave for a week's absence, instead of 54/7 days, although the practice as disclosed by the time cards of this office has not been uniform. However, in a decision of the Comptroller General of the United States (17 Comp. Gen. 906, April 18, 1938), it was held in effect that nonwork days fixed by administrative authority only were neither Sundays nor holidays within the meaning of the act of March 14, 1936, excusing the charging of leave for such Sundays and holidays; and after that decision, it appears that the practice was renewed of charging 5 4/7 days for one week's absence on leave.

9. However, an act of March 2, 1940, provided that the days of annual leave with pay provided for in the act of March 14, 1936, should mean days upon which employees would otherwise work and receive pay, and should be exclusive of Sundays, which do not occur within a regular tour of duty, holidays, and all nonwork days established by statute or by executive or administrative order.

10. Since the passage of that act, it appears that the Philadelphia Quartermaster Depot and the Personnel Division of the Office of the Finance Officer, U. S. Army, have followed the practice of charging per annum employees only five days' leave for one week's full absence.

11. The doubt in my mind is whether, looking at the substance and not the form, the 39 hour per week employees of the Finance Office, U. S. Army, are not still to be regarded within the period of Major Fedalei's claim as working 5 4/7 seven-hour days per week, and no five day week be deemed to exist for leave purposes, notwithstanding the fact that, purely as a matter of convenience, and by working 5 days of different lengths, the required 39 hours per week were actually served in 5 days with no work on Saturday.

12. A copy of the work sheet upon which the voucher for the lesser amount was computed as to leave, and also a copy of the work sheet upon which the payment was computed on that voucher, are herewith inclosed.

The act of August 1, 1941, Public Law 202, 55 Stat. 616, provides as follows:

That employees of the United States Government, its Territories, or possessions, or the District of Columbia (including employees of any corporation created under authority of an act of Congress which is either wholly controlled or wholly owned by the United States Government, or any corporation, all the stock of which is owned or controlled by the United States Government, or any department, agency, or establishment thereof, whether or not the employees

thereof are paid from funds appropriated by Congress), who have heretofore or who may hereafter be ordered to active duty with the military or naval forces of the United States shall be entitled to receive, in addition to their military pay, compensation in their civilian positions covering their accumulated or current accrued leave or to elect to have such leave remain to their credit until their return from active military or naval service.

In decision of September 13, 1941, 21 Comp. Gen. 210, 214, it was held as follows:

Referring to paragraph numbered 5, the accrued annual leave payment authorized by the act of August 1, 1941, appears properly for computing upon the same basis as though the employees remain in the service on a duty status in their civilian positions, with credit for Sundays and other nonwork days allowed. In other words, the computation should be upon the same basis as though the leave had been taken for the period covered thereby without entering the military service.

See, also, 21 Comp. Gen. 258.

During the period over which the annual leave of Albert J. Fedalei should be computed, there was in force the act of March 2, 1940, 54 Stat. 38, providing as follows:

That the days of annual leave with pay provided for in the act of March 14, 1936 (49 Stat. 1161), and the days of sick leave with pay provided for in the act of March 14, 1936 (49 Stat. 1162), shall mean days upon which employees would otherwise work and receive pay, and shall be exclusive of Sundays which do not occur within a regular tour of duty, holidays, and all nonwork days established by Federal statute or by Executive or administrative order. [Italics supplied.]

In decision of September 21, 1940, 20 Comp. Gen. 170, 171, it was stated:

The rule applicable in answering the questions presented is fully stated in the decision of December 17, 1936, 16 Comp. Gen. 600 (not 660), quoted in your letter. There is nothing in the act of March 2, 1940, 54 Stat. 38, or in the annual and sick-leave regulations as amended by Executive Orders Nos. 8384 and 8385, dated March 29, 1940, to justify or authorize any change in the rule. That is, the annual and sick-leave acts of March 14, 1936, 49 Stat. 1161 and 1162, clearly authorize the granting of annual and sick leave of absence on the basis of the day only, not on the basis of the hour or the week. The act of March 2, 1940, simply defines the word "day" as used in the prior leave acts.

The referred-to rule stated in decision of December 17, 1936, 16 Comp. Gen. 600, is as follows (quoting from the syllabus) :

Where the weekly tour of duty of employees of the Government Printing Office subject to the forty-hour week law is changed, for administrative reasons, from 5 days of 8 hours each, Monday to Friday, inclusive, to 5 days of 7 hours each, Monday to Friday, inclusive, and 5 hours on Saturday, annual and sick leave. both current and advanced, should be charged on a basis of the length of the work day in force when the leave is taken, a full work day's absence, regardless of the number of work hours constituting the day, to be computed as one day's leave, a partial day as a fraction of a day, the denominator of which is the total number of work hours constituting the day, and the numerator the number of work hours' absence thereon.

The facts here presented show that the administrative office had established a 5-day week-Monday to Friday, inclusive for the employee in question during the period covered by his claim for payment for annual leave. Thus, Saturday was established as a nonwork day by an "administrative order" (quoting from the act of March 2, 1940, supra). Such administrative action as to field employees is legal and

proper regardless of the basis upon which compensation is paid, including per annum employees. See 17 Comp. Gen. 192; id. 564. The fact that different workdays during the 5-day week may vary as to length, and the number of hours' work during the week remain at 39 after the establishment of the 5-day week, is immaterial-annual leave being computed on the basis of the day, not on the basis of the hour or week.

Accordingly, the amount properly for payment for the period of leave in the case here involved should be computed by charging the employee with only 5 days for each week of leave; that is, by excluding from the computation all Saturdays (nonwork days administratively established), Sundays, and holidays. Thus, payment on the voucher in the amount of $743.06, after being administratively certified, is authorized, if otherwise correct. The papers are returned herewith.

(B-22500)

CONTRACTS-NATIONAL DEFENSE ACTIVITIES AS EXCUSING

NONPERFORMANCE

A Government contractor may not be relieved of its liability to pay excess cost resulting from its default because changed conditions brought about by the general activities of the Government-as distinguished from acts directed particularly against the contractor-under the national defense program made it difficult to procure materials, or because the contracting agency failed to furnish a preference rating order entitling the contractor to priority in obtaining materials.

Comptroller General Warren to the Secretary of Agriculture, January 2, 1942: I have your letter of December 10, 1941, as follows:

Under date of May 13, 1941, acceptance was made of bid submitted by the Thwing-Albert Instrument Company, 3339 Lancaster Avenue, Philadelphia. Pennsylvania, for furnishing one Indicating Control Pyrometer to the Bureau of Plant Industry of this Department at a cost of $139.95 (1%-10 days), f. o. b. delivered, under bid transaction U. S. D. A. 2322-41. Req. 99493-P, dated May 22, 1941, was issued to cover this proposed procurement.

The successful bidder in this case specified a delivery date of thirty calendar days after receipt of official order. After receipt of the order the firm, in letter dated June 10, 1941, returned this purchase order advising that due to changing conditions and also to the many national defense contracts received by them from the War and Navy Departments, carrying high priority ratings, they could not make delivery within the time specified in their bid and suggested that we make the procurement elsewhere. At the time our order was placed the Office of Production Management had not issued their Preference Rating Order No. P-43, granting an A-2 priority rating, to research laboratories supplies and equipment. In replying to the firm, under date of June 13, 1941, we requested that they furnish evidence of defense contracts which prevented them from performing in accordance with their contract with this Department and returned our original purchase order to the contractor. Under date of June 18, 1941, the firm again wrote returning our purchase order, setting forth evidence of receipt of national defense orders carrying high priority ratings. In their letter the firm stated that the situation had become so difficult they could not even furnish an approximate shipping date. They again suggested that we obtain this equipment elsewhere.

As the work for which this equipment was being obtained could not be held up indefinitely, the order on the Thwing-Albert Instrument Company was cancelled and an open market order, Req. 821-P, dated August 8, 1941, was placed with The Bristol Company, Waterbury, Connecticut, calling for the same ec ment at a cost of $159.50 (1%-10 days) f. o. b. delivered. Prior to de