A-65530, DECEMBER 13, 1935, 15 COMP. GEN. 494

A-65530: Dec 13, 1935

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CONTRACTORS - RELIEF ACT - CODE AND PRESIDENTIAL REEMPLOYMENT AGREEMENT COMPLIANCE A CONTRACTOR IS NOT ENTITLED UNDER THE ACT OF JUNE 16. TO REIMBURSEMENT OF INCREASED COSTS ALLEGED TO HAVE BEEN INCURRED BY REASON OF COMPLIANCE "IN LETTER AND SPIRIT WITH THE N.R.A. WITH THE PRESIDENT'S REEMPLOYMENT AGREEMENT" WHERE THERE WAS NO APPLICABLE APPROVED CODE OF FAIR COMPETITION AND IT IS ADMITTED THAT THERE WAS NO SIGNING OF AN AGREEMENT WITH THE PRESIDENT. NOTWITHSTANDING IT IS ALLEGED THERE WAS NO FORMAL WAY OR MEANS OF SUBSCRIBING TO SUCH AN AGREEMENT. WHEREIN WAS DISALLOWED YOUR CLAIM UNDER THE ACT OF JUNE 16. WHICH COMPENSATION APPEARS TO HAVE BEEN PAID. YOU HAVE ALLEGED THAT THE SUM OF $4.

A-65530, DECEMBER 13, 1935, 15 COMP. GEN. 494

CONTRACTORS - RELIEF ACT - CODE AND PRESIDENTIAL REEMPLOYMENT AGREEMENT COMPLIANCE A CONTRACTOR IS NOT ENTITLED UNDER THE ACT OF JUNE 16, 1934, 48 STAT. 974, TO REIMBURSEMENT OF INCREASED COSTS ALLEGED TO HAVE BEEN INCURRED BY REASON OF COMPLIANCE "IN LETTER AND SPIRIT WITH THE N.R.A. AND WITH THE PRESIDENT'S REEMPLOYMENT AGREEMENT" WHERE THERE WAS NO APPLICABLE APPROVED CODE OF FAIR COMPETITION AND IT IS ADMITTED THAT THERE WAS NO SIGNING OF AN AGREEMENT WITH THE PRESIDENT, NOTWITHSTANDING IT IS ALLEGED THERE WAS NO FORMAL WAY OR MEANS OF SUBSCRIBING TO SUCH AN AGREEMENT.

COMPTROLLER GENERAL MCCARL TO THE HAHN ENGINEERING CO., DECEMBER 13, 1935:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF AUGUST 19, 1935, WHICH YOU REQUESTED IN A PERSONAL INTERVIEW OF SEPTEMBER 7, 1935, BE ACCEPTED AS A REQUEST FOR REVIEW OF SETTLEMENT NO. 0466635, DATED AUGUST 16, 1935, WHEREIN WAS DISALLOWED YOUR CLAIM UNDER THE ACT OF JUNE 16, 1934, 48 STAT. 974, FOR $4,667.79 IN ADDITION TO THE COMPENSATION STIPULATED IN CONTRACT NOY-1872, DATED JUNE 24, 1933, AND WHICH COMPENSATION APPEARS TO HAVE BEEN PAID. YOU HAVE ALLEGED THAT THE SUM OF $4,667.79 REPRESENTS INCREASED COSTS INCURRED BY YOU IN COMPLYING "IN LETTER AND SPIRIT WITH THE N.R.A. AND WITH THE PRESIDENT'S REEMPLOYMENT AGREEMENT, EVEN THOUGH THERE WAS EVIDENTLY NO WAY OR MEANS FOR US TO FORMALLY SIGN THE LATTER.'

THE ACT OF JUNE 16, 1934, AUTHORIZED THE SETTLEMENT UPON A FAIR AND EQUITABLE BASIS OF CLAIMS OF PERSONS WHO ENTERED INTO A CONTRACT OR CONTRACTS WITH THE UNITED STATES PRIOR TO AUGUST 10, 1933, INCLUDING SUBCONTRACTORS AND MATERIALMEN PERFORMING WORK OR DELIVERING MATERIAL OR NECESSARY FUEL DIRECT TO THE CONTRACTOR UNDER SUCH CONTRACTS FOR ADDITIONAL COSTS INCURRED BY REASON OF COMPLIANCE ON AND AFTER AUGUST 10, 1933:

* * * WITH A CODE OR CODES OF FAIR COMPETITION APPROVED BY THE PRESIDENT UNDER SECTION 3 OF THE ACT APPROVED JUNE 16, 1933, KNOWN AS THE "NATIONAL INDUSTRIAL RECOVERY ACT," OR BY REASON OF COMPLIANCE WITH AN AGREEMENT WITH THE PRESIDENT EXECUTED UNDER SECTION 4 (A) OF SAID ACT IN THE PERFORMANCE AFTER AUGUST 10, 1933, OF A CONTRACT OR ANY PART THEREOF * *

THAT IS TO SAY, COMPLIANCE EITHER WITH AN APPLICABLE CODE OR WITH AN AGREEMENT WITH THE PRESIDENT KNOWN AS THE REEMPLOYMENT AGREEMENT IS A CONDITION PRECEDENT TO THE ALLOWANCE OF ANY BENEFITS UNDER THE SAID ACT OF JUNE 16, 1934. THE CONTRACT WAS FOR THE CONSTRUCTION OF CAST IRON HOPPERS FOR THE STORAGE OF SAND, GRAVEL, AND COAL AT THE NAVY YARD, BROOKLYN, N.Y., FOR THE SUM OF $13,180. THERE HAS BEEN NO SHOWING THAT THERE WAS AN APPROVED CODE OF FAIR COMPETITION APPLICABLE TO THE CONSTRUCTION OF CAST IRON HOPPERS FOR THE STORAGE OF SAND, GRAVEL, AND COAL, AND YOU ADMIT THAT YOU DID NOT SIGN AN AGREEMENT WITH THE PRESIDENT AS PROVIDED IN THE ABOVE- QUOTED TERMS OF THE ACT OF JUNE 16, 1934. HOWEVER, YOU HAVE URGED THAT YOUR CONCERN WAS A DESIGNING AND SELLING ORGANIZATION OF ONE EMPLOYEE ONLY; THAT THERE WAS NO GROUP FOR YOU TO JOINT IN SUBSCRIBING TO THE PRESIDENT'S REEMPLOYMENT AGREEMENT; AND THAT THE ONLY WAY YOU COULD COMPLY THEREWITH WAS TO PAY THE ERECTING CREW ACCORDING TO THE INCREASED WAGE SCALE UNDER THE SUPERVISION OF THE PUBLIC WORKS OFFICE OF THE NAVY YARD. YOU HAVE ALLEGED THAT YOU PURCHASED OVER 80 PERCENT OF THE MATERIAL FROM THREE NAMED CONCERNS AND THAT THEY OPERATED UNDER THE APPLICABLE APPROVED CODES.

AS UNDERSTOOD, YOUR CLAIM IS NOT FOR INCREASED COSTS OF YOUR SUBCONTRACTORS OR MATERIALMEN; THAT IS, THE CLAIM HAS NOT BEEN FILED IN THEIR BEHALF, BUT HAS BEEN FILED FOR INCREASED COSTS ALLEGED TO HAVE BEEN SUSTAINED BY YOU. OF COURSE, IF THERE WAS NO APPLICABLE APPROVED CODE WITH WHICH YOU COULD COMPLY, AND IF YOU DID NOT ENTER INTO AN AGREEMENT WITH THE PRESIDENT YOUR CLAIM FAILS TO FALL WITHIN THE EXPRESS TERMS OF THE ACT OF JUNE 16, 1934, AND THERE IS NO LEGAL BASIS UNDER WHICH IT MAY BE ALLOWED BY THIS OFFICE.

WHATEVER MAY HAVE BEEN THE REASON WHY YOU DID NOT ENTER INTO AN AGREEMENT WITH THE PRESIDENT UNDER SEC. 4 (A) OF THE ACT OF JUNE 16, 1933, IT IS TO BE OBSERVED THAT YOU WERE NOT REQUIRED TO JOIN A GROUP IN SUBSCRIBING TO THE REEMPLOYMENT AGREEMENT. THE REEMPLOYMENT AGREEMENT WAS AN INDIVIDUAL AGREEMENT BETWEEN THE PRESIDENT AND EMPLOYERS OF LABOR. YOU HAVE ADMITTED, IN EFFECT, THAT YOU DID EMPLOY LABOR IN THE ERECTION OF THE HOPPERS, BUT SINCE YOU DID NOT SIGN THE REEMPLOYMENT AGREEMENT THERE IS NO LEGAL BASIS FOR THE ALLOWANCE TO YOU OF THE INCREASED COSTS WHICH YOU ALLEGE TO HAVE PAID TO YOUR EMPLOYEES.