B-13607, DECEMBER 12, 1940, 20 COMP. GEN. 310

B-13607: Dec 12, 1940

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

B-13607, DECEMBER 12, 1940, 20 COMP. GEN. 310

SUNDAYS AND HOLIDAYS - PERFORMANCE OR DISCOUNT PERIOD COMPUTATIONS IT IS WELL ESTABLISHED THAT WHERE AN ACT IS TO BE PERFORMED WITHIN A CERTAIN NUMBER OF DAYS AND THE LAST DAY FALLS ON SUNDAY, THE REQUIREMENT IS COMPLIED WITH IF THE ACT IS PERFORMED ON THE FOLLOWING DAY. WHERE A GOVERNMENT CONTRACT PROVIDES FOR A DISCOUNT FOR PAYMENT EITHER WITHIN A SPECIFIED NUMBER OF "DAYS" OR WITHIN A SPECIFIED NUMBER OF "CALENDAR DAYS," AND THE LAST DAY OF THE DISCOUNT PERIOD FALLS ON SUNDAY, THE GOVERNMENT IS ENTITLED TO THE DISCOUNT IF PAYMENT IS MADE ON THE FOLLOWING BUSINESS DAY.

COMPTROLLER GENERAL WARREN TO THE AMALGAMATED LUMBER CO., DECEMBER 12, 1940:

YOUR LETTER OF SEPTEMBER 19, 1940, REQUESTS REVIEW OF SETTLEMENT DATED SEPTEMBER 17, 1940, WHICH DISALLOWED YOUR CLAIM FOR $10.16 REPRESENTING REFUND OF DISCOUNT DEDUCTED IN MAKING PAYMENT FOR A QUANTITY OF LUMBER FURNISHED THE WORK PROJECTS ADMINISTRATION AT SIOUX FALLS, S. DAK., UNDER UNNUMBERED CONTRACT DATED FEBRUARY 12, 1940. ALSO, YOUR LETTER REQUESTS CONSIDERATION OF AN INVOICE TRANSMITTED THEREWITH IN THE AMOUNT OF $0.31 WHICH YOU NOW CLAIM TO BE DUE YOU, FOR REASONS HEREINAFTER STATED, FOR LUMBER DELIVERED UNDER YOUR CONTRACT.

UNDER THE TERMS OF SAID CONTRACT YOU AGREED TO FURNISH THE WORK PROJECTS ADMINISTRATION 24,000 BOARD FEET OF NO. 3 PONDEROSA PINE, F.O.B. KLAMATH FALLS, OREG., AT $21 PER 1,000 BOARD FEET, LESS DISCOUNT OF 2 1/16 PERCENT FOR PAYMENT WITHIN 10 CALENDAR DAYS AND 2 1/64 PERCENT FOR PAYMENT WITHIN 20 CALENDAR DAYS. DELIVERY OF THE LUMBER WAS EFFECTED ON MARCH 4, 1940, THUS FIXING THE EXPIRATION DATE OF THE 20-DAY DISCOUNT PERIOD AS MARCH 24, 1940. IN MAKING PAYMENT FOR THE LUMBER ON MARCH 25, 1940, DISCOUNT IN THE AMOUNT OF $10.16 WAS DEDUCTED, SINCE MARCH 24, 1940, THE TWENTIETH DAY OF THE DISCOUNT PERIOD, FELL ON SUNDAY AND PAYMENT ON THE FOLLOWING MONDAY WAS, THEREFORE, CONSIDERED AS BEING WITHIN THE DISCOUNT PERIOD. YOUR CLAIM FOR REFUND OF THE AMOUNT SO DEDUCTED WAS DISALLOWED BY SETTLEMENT OF SEPTEMBER 17, 1940, REFERENCE BEING MADE IN THE SETTLEMENT TO THE GENERALLY ESTABLISHED PRACTICE AND THE PROVISIONS OF THE NEGOTIABLE INSTRUMENTS LAW THAT WHEN THE DUE DATE FALLS ON A SUNDAY, PAYMENT IS NOT REQUIRED UNTIL THE NEXT BUSINESS DAY.

YOUR LETTER OF SEPTEMBER 19, 1940 REQUESTS FURTHER CONSIDERATION OF THE CLAIM UNLESS THERE HAS BEEN A SPECIFIC RULING BY THE COMPTROLLER GENERAL ON A CLAIM PARALLEL TO YOURS, FOR THE STATED REASON THAT YOUR CONTRACT DOES NOT COME UNDER THE PRINCIPLES REFERRED TO IN THE SETTLEMENT BECAUSE IT PLAINLY READS "20 CALENDAR DAYS.'

IT IS A WELL ESTABLISHED RULE OF LAW THAT WHEN AN ACT IS TO BE PERFORMED WITHIN A CERTAIN NUMBER OF DAYS AND THE LAST DAY FALLS ON SUNDAY AND THE ACT IS PERFORMED ON THE FOLLOWING DAY, THE REQUIREMENT IS COMPLIED WITH. IN COMPUTING THE TIME MENTIONED IN A CONTRACT FOR PERFORMANCE WITHIN A CERTAIN NUMBER OF DAYS--- SYNONYMOUS WITH "CALENDAR DAYS" WHERE NOT OTHERWISE PROVIDED IN THE CONTRACT--- INTERVENING SUNDAYS ARE TO BE COUNTED BUT WHEN THE LAST DAY FALLS ON SUNDAY AND THE CONTRACT IS COMPLETED ON THE FOLLOWING DAY, THERE IS NO BREACH. SEE ARMSTRONG V. MCGOUGH, 29 A.L.R. 236, AND CASES THERE CITED. IN VIEW THEREOF, IT HAS BEEN HELD BY THIS OFFICE THAT WHEN A GOVERNMENT CONTRACT PROVIDES A DISCOUNT FOR PAYMENT WITHIN A CERTAIN NUMBER OF CALENDAR DAYS AND THE LAST DAY OF THE DISCOUNT PERIOD FALLS ON SUNDAY, THE GOVERNMENT IS ENTITLED TO THE DISCOUNT IF PAYMENT IS MADE ON THE FOLLOWING BUSINESS DAY.

DECISION

EXAMINATION OF THE INVOICE TRANSMITTED WITH YOUR LETTER SHOWS THAT OF THE TOTAL AMOUNT OF $0.31 CLAIMED THEREON, $0.27 REPRESENTS A DEDUCTION MADE BY THE GOVERNMENT FROM YOUR INVOICE PRICE TO COVER FREIGHT ON 80 POUNDS WEIGHT IN EXCESS OF YOUR GUARANTEED SHIPPING WEIGHT OF 43,000 POUNDS, WHICH DEDUCTION YOU SEEM TO BELIEVE WAS INCONSISTENT WITH A CLAIM WHICH STATE WAS MADE BY THE GOVERNMENT AND SATISFIED BY YOU IN THE AMOUNT OF $1.89 BY REASON OF A SHORTAGE IN THE AMOUNT OF LUMBER SHIPPED UNDER THE CONTRACT. THE RECORD DOES NOT SHOW RECEIPT OF THE AMOUNT OF $1.89 BY THE GOVERNMENT. IT DOES INDICATE, HOWEVER, THAT THE SHIPMENT ACTUALLY MADE WEIGHED 43,080 POUNDS, BUT WAS SHORT OF THE CONTRACT QUANTITY BY 90 BOARD FEET. OBVIOUSLY, THE SHIPMENT COULD EXCEED THE GUARANTEED SHIPPING WEIGHT AND STILL FALL SHORT OF THE QUANTITY CALLED FOR BY THE CONTRACT. FURTHERMORE, HAD YOU SHIPPED THE FULL CONTRACT QUANTITY, THE GUARANTEED SHIPPING WEIGHT WOULD HAVE BEEN EXCEEDED BY A STILL GREATER AMOUNT. HENCE, THE ACTION OF THE GOVERNMENT IN APPLYING THE FULL GUARANTEED SHIPPING WEIGHT TO THE QUANTITY SHIPPED RATHER THAN A PRORATED WEIGHT OPERATED NOT TO YOUR DETRIMENT BUT TO YOUR ADVANTAGE.

THE REMAINING AMOUNT OF $0.04 CLAIMED IN YOUR INVOICE REPRESENTS DISCOUNT IN THE AMOUNT OF $1.89 ALLEGEDLY REFUNDED TO THE GOVERNMENT. CONCEDING THAT SUCH REFUND WAS MADE, THE DIFFERENCE OF $0.04 IS NOT SUFFICIENT TO JUSTIFY MODIFICATION OF THE SETTLEMENT OF SEPTEMBER 17, 1940, WHICH IS SUSTAINED.