the Federal Government in the exercise of such powers, there can be no room for doubt that a State or local sales tax, the legal incidence of which is upon the vendee, is not applicable to a transaction by which the United States procures the supplies "desired for its governmental purposes."

However, it is realized that inasmuch as a dealer in such supplies cannot be compelled to sell the same to the United States except upon such terms and conditions as he may see fit to prescribe, cases have arisen and may continue to arise where the lowest or only bid obtainable for the furnishing of necessary supplies is submitted upon a tax inclusive basis, and it is apparent that in a situation, such as referred to by you, where a bid for the furnishing of supplies to the United States is accepted and a contract awarded upon the basis that the quoted prices include all State and local sales taxes imposed directly on the sales and that the dealer will not accept a tax-exemption certificate in lieu of the payment of the amount of such taxes, payment must be made by the Government to the dealer in accordance with the terms of the contract for the supplies furnished thereunder without the deduction of any amounts representing the taxes. Hence, since a claim presented by a dealer for the purchase price of the supplies furnished under a contract of the type here involved must necessarily include a charge for the amount of any State or local sales tax appearing in the prices quoted by him, if he is to be paid the full amount to which he is entitled, there can be no reasonable basis for requiring a dealer to support his claim by a certificate to the effect that no State or local sales taxes are included therein.

Accordingly, in view of the foregoing, you are advised that, as prescribed by the provisions contained in the Invitation to Bidders, which you state now are in use by your Department, a bidder should be required to specify in detail in his bid for furnishing supplies to the Government the amount of all State and local taxes imposed directly on the sales, regardless of whether the bid is submitted on a tax-inclusive or tax-exclusive basis, and that in a case where an invitation to bidders contains provisions relative to State and local sales taxes similar to those appearing in your submission and it is stipulated in the bid upon which the contract is based that the prices quoted are tax inclusive and that the bidder will not consent to the deduction of an amount representing such taxes, there is no objection to the modification of the general certificate prescribed by the terms of the circular letter dated August 15, 1941, 21 Comp. Gen. 1160, of this office (referred to in the first paragraph of your letter as "Opinions A-51607 and A-49009,") which is required on the vouchers and invoices covering the purchase prices of the supplies furnished under the contract, by eliminating therefrom the phrase "and that State or local sales taxes

are not included in the amounts billed." However, it is, of course, contemplated that in all cases where the legal incidence of a State or local sales tax, which is included in the purchase price paid to a dealer, is upon the vendee appropriate steps will be taken by the administrative agency concerned to obtain appropriate certificates from the dealers in accordance with the procedure stated in General Regulations No. 86-Revised, of this office, for following in a case where the purchase price required to be paid by the Government includes a State or local sales tax not properly chargeable to the Government. See in this connection, 19 Comp. Gen. 909; id. 921, id. 1002.

(B-22953)

COMPENSATION-WITHIN-GRADE PROMOTIONS-NONPOSTPONEMENT OF EFFECTIVE DATE WITH EMPLOYEES' CONSENT

An employee who became entitled to a within-grade salary advancement as of October 1, 1941, or the beginning of a subsequent quarter, by operation of the uniform within-grade salary-advancement statute of August 1, 1941, may not by consent postpone the effective date of the advancement.

Comptroller General Warren to the Secretary of War, January 30, 1942:

I have your letter of January 1, 1942, as follows:

In connection with the granting of within-grade salary advancements under the provisions of section 2 (b) of the act of August 1, 1941 (Public 200, 77th Congress), retroactive to October 1, 1941, in accordance with your decision B-20911 of October 14, 1941, the Department has a number of employees who were serving in excepted positions on October 1, 1941, and who were eligible for within-grade advancement on that date, but subsequent to October 1, 1941, have been certified from civil-service registers and probationally appointed to positions of the same grade and salary as those in which they served in excepted positions. They are at present still serving their probationary periods. Under the civilservice rules a probational appointment must be made at the minimum salary rate of the grade. If these employees are granted within-grade advancements on October 1, 1941, or at the beginning of any subsequent quarter for those employees in the same category who will be eligible at some future date, they can receive the increased compensation only from the date it was granted to the date they are probationally appointed, which period, in some cases, amounts to only a few weeks or less. The employees would not be eligible for further within-grade advancement under section 2 (b) of the act until 18 or 30 months from the date of that increase, provided they are then otherwise eligible. The effect of this would be that in some instances an employee must wait practically twice the required length of time before any substantial benefits can be realized from the act.

Decision is requested as to whether the Department may, with the employees' consent, withhold authorization for payment of the increases to the employees mentioned above, until the beginning of the quarter immediately following the date on which the probationary period is completed, so that they may receive the continued benefits of the act.

In decision of October 27, 1941, 21 Comp. Gen. 369, 371, 375, appear the following question and answer:

A third question is whether an employee who was demoted in grade and salary, within the 18-month period prior to October 1, and later during the same period was restored to his former grade and salary, would be promotable if otherwise eligible. An illustration of this question would be an employee in grade CAF-3 at $1,620 per annum occupying an excepted position, who upon

becoming eligible through civil-service examination, was given a probational appointment in grade CAF-2 at $1,440 per annum. After the probationary period had been completed, the employee was restored to his former grade and salary of CAF-3 at $1,620 per annum.

Third question.-In decisions of October 2, 1941, B-20500, 21 Comp. Gen. 285, and October 13, 1941, B-20841, 21 Comp. Gen. 326, it was held that a restoration in compensation after a reduction is an "equivalent increase in compensation" for any cause within the meaning of section 2 (b) (1) of the statute and section 1 (d) of the President's regulation, and that the 18 or 30 months' period begins to run from the date of the restoration. In the illustration given, the 18 months' period would begin to run from the date the employee was restored to his former grade and salary of CAF-3 at $1,620 per annum.

That question and answer involved the meaning of the words "equivalent increase in compensation from any cause" appearing in section 2 (b) (1) of the act of August 1, 1941, Public Law 200, 55 Stat. 614, and it was held that such a restoration in compensation came within the meaning of the quoted words of the statute and accordingly that the promotable period must date from such restoration in compensation.

In the decision of October 14, 1941, B-20911, 21 Comp. Gen. 335, cited in your letter, it was held as follows (quoting from the syllabus):

The words "shall be advanced in compensation" appearing in the act of August 1, 1941, providing for uniform within-grade salary advancements, are imperative and mandatory, and, therefore, if an employee meets the terms and conditions of the statute, he is entitled as a matter of right to the periodic advancement in salary.

The effective date of the act of August 1, 1941, providing for uniform withingrade salary advancements, is fixed therein as July 1, 1941, and since the first periodic advancement in salary is authorized and required to be made as of October 1, 1941, to all employees who qualify on and after October 1, 1941, and the beginning of subsequent quarters, the only legal rate of salary payable to employees who qualify as of those dates is the advanced salary required by the act to be paid.

The mandatory provisions of the act of August 1, 1941, providing for uniform within-grade salary advancements, supersede and render inoperative that portion of section 7 of the Classification Act of 1923 prohibiting increases in compensation "unless Congress has appropriated money from which the increases may lawfully be paid," and, therefore, existing salary appropriations are available for payment of the salary advancements from and after October 1, 1941, or from and after the beginning of any later quarter of the present fiscal year, regardless of the fact that a deficiency may be incurred.

While it is proper that actual payment of the within-grade salary advancements required by the act of August 1, 1941, be postponed pursuant to the request of the House Appropriations Committee and the Bureau of the Budget in its circular No. 381, dated September 27, 1941, until the appropriation of additional funds for the payment of the salary increases, such increases will be retroactively effective to October 1, 1941, or to the beginning of a later quarter of the present fiscal year for those employees who otherwise qualify under the statute.

Answering the specific question presented, it would seem to follow that an employee who became entitled to a within-grade salary advancement as of October 1, 1941, or the beginning of a subsequent quarter, by operation of law, may not by consent postpone the effective date of the advancement. Accordingly, the question presented is answered in the negative.

(B-23172)

CLASSIFICATION AND OVERTIME COMPENSATION—TRUCK DRIVERS Where proper administrative action has been taken to eliminate the position of truck driver, heavy duty, in the field service of the Ordnance branch of the War Department from the purview of the Classification Act, and, also, to include such positions under the 40-hour week statute of October 21, 1910, and to fix a regular tour of duty of 40 hours per week, payment of overtime compensation under the terms of the latter statute is authorized for time worked, including travel time, in excess of the regular 40-hour tour of duty.

In computing overtime compensation of 40-hour week War Department field service employees under the act of October 21, 1940, an employee should be paid his regular rate of compensation for the 5 days comprising his regular work week if in a pay status for an aggregate of 40 hours during such regular work week, and any time actually worked during the week in addition to the 40 hours thus computed is compensable at the overtime rate regardless of the day of the week on which the overtime work is performed. Comptroller General Warren to Capt. H. D. Caldwell, United States Army, January 30, 1942:

By 1st indorsement dated January 14, 1942, the Chief of Finance, War Department, forwarded here for consideration your letter of November 12, 1941, as follows:

1. I am the Disbursing Officer at Watertown Arsenal, Watertown, Massachusetts, and in this capacity there has been submitted to me by the Commanding Officer at this station an approved voucher for the payment of overtime to a civilian truck driver while performing official duty away from his permanent station. The amount shown on line 14 of the voucher as having been already paid on Voucher No. 1 of my November 1941 Accounts is correct.

2. The letter of the Commanding Officer of this Arsenal which accompanies and supports this voucher completely presents the question which necessitates this submission for an advance decision, and it is requested that such decision be rendered as soon as possible as there are similar cases arising every week. The commanding officer's letter, mentioned in your letter, supra, is dated November 10, 1941, and reads as follows:

1. There is inclosed supplementary voucher to voucher No. 1 November 1941 Cash Accounts, Captain H. D. Caldwell, Finance Department, in favor of Albert E. Boyns, truck driver, heavy duty, in the amount of $32.94. It is requested that a preaudit of this and a decision as to whether payment may properly be made, be obtained from the General Accounting Office which will govern future payments of wages of truck drivers in a travel status.

2. Up to October 4, 1941, Mr. Boyns was employed as a Senior Chauffeur at the rate of $1,440 per annum. As a result of a wage survey the status of Mr. Boyns was changed on October 4 to that of a truck driver, heavy dutyat the rate of $8.16 per diem for day work and $8.88 per diem for night work. It has administratively been established at this arsenal that per diem employees working between the hours of 4:00 p. m., and 8:00 a. m., are to be paid at the night rate. An exception to this is the case of certain employees working on the 7:30 a. m., to 4:30 p. m., shift who are paid at the day rate. Ordinarily, Mr. Boyns would work this shift and be paid at the day rate. In the preparation of the inclosed voucher, the hours between 4:30 p. m. and 7:30 a. m., have been considered at the night rate.

3. This arsenal was directed by the office of the Chief of Ordnance to deliver two-90 mm. mounts to the Aberdeen Proving Ground for test at the earliest practicable date. These mounts were at the plant of the Sperry Gyroscope Company, Garden City, Long Island, New York, where the installation of remote control equipment was being performed. On October 24, 1941, Mr. Boyns was given a travel order, copy of which is inclosed, directing him to proceed from Watertown Arsenal on or about October 26, 1941, to the Sperry Gyroscope Company, Garden City, Long Island, N. Y., thence to Aberdeen Proving Ground, Aberdeen, Maryland, thence to the Sperry Gyroscope Com

pany to obtain the second mount, thence to Aberdeen Proving Ground, and thence to Watertown Arsenal.

4. Mr. Boyns worked 8 hours at this arsenal on Saturday, October 25, 1941, the first day of the workweek. He left this arsenal driving the prime mover at 5:30 a. m., Monday, October 27, 1941. He arrived at the works of the Sperry Gyroscope Company, Garden City, Long Island, N. Y., at 2:30 p. m., and left that establishment with one 90 mm. mount at 3:30 p. m. the same day. The prime mover with the mount arrived at Aberdeen Proving Ground at 5:45 a. m., on Tuesday, October 28, 1941.

5. At 5:30 a. m., on Wednesday, October 29, 1941, the prime mover left Aberdeen Proving Ground for the Sperry Gyroscope Company to transport the second 90 mm. mount to the Aberdeen Proving Ground. Due to generator trouble it was necessary to lay up the prime mover at Philadelphia, Pennsylvania, from 9:00 a. m., to 4:30 p. m., while repairs were being effected. The prime mover arrived at the works of the Sperry Gyroscope Company at 10:45 p. m., on Wednesday October 29, 1941.

6. As the second 90 mm. mount was not ready for hauling to the Proving Ground the prime mover left the Sperry Gyroscope Company at 9:20 a. m., Thursday, October 30, 1941, and arrived at Watertown Arsenal at 7:35 p. m., the same day.

7. On Friday, October 31, 1941, Mr. Boyns performed 8 hours work at this arsenal.

8. It would appear that Mr. Boyns was in a pay status for 67.75 hours during the week beginning Saturday, October 25, and ending Friday October 31. To this should be added 13.87 hours, or one-half the difference between 67.75 hours and 40 hours as per diem employees are entitled to pay at the rate of 11⁄2 times all hours worked in excess of 40. This makes a total of 81.62 hrs. His pay for this period in the gross amount of $86.03 is shown computed as follows:

9. The time and earnings shown in the above tabulation are included in the total time and earnings as shown on the inclosed supplementary voucher. There has been retained from Mr. Boyns' pay all earnings in excess of 48 hours, until this arsenal is authorized to make payment. The net amount retained is $32.94, as shown on inclosed voucher.

10. When Mr. Boyns was directed to perform the travel specified in travel order dated October 24, 1941, a similar travel order was furnished Paul G. Carr.