B-152202, MAY 12, 1964

B-152202, MAY 12, 1964

TO MR. MILO WHITNEY SMITH:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 12, 1963, WRITTEN ON BEHALF OF WESTERN GIRL, INC., D.B.A. WESTERN MAN, INC., CONCERNING A CLAIM UNDER CONTRACT NO. GS-09S-10483, IN THE AMOUNT OF $1,047.05.

THE RECORD SHOWS THAT ON JUNE 29, 1962, CONTRACT NO. GS-093-10483 WAS AWARDED TO WESTERN GIRL, INC., D.B.A. WESTERN MAN, INC., COVERING A TERM CONTRACT FOR LABOR SERVICES FOR GENERAL SERVICES ADMINISTRATION WAREHOUSES IN SOUTH SAN FRANCISCO AND OAKLAND, CALIFORNIA, DURING THE PERIOD JULY 1, 1962, THROUGH JUNE 30, 1963. WHILE THIS WAS THE FIRST CONTRACT AWARDED WESTERN GIRL, INC., FOR THIS TYPE OF SERVICE, THE CONTRACT TERMS INVOLVED EXACTLY DUPLICATE TERMS ON PREVIOUS CONTRACT AWARDS IN EXISTENCE FOR SEVERAL YEARS.

UNDER THE TERMS OF THE INVITATION FOR BIDS AND AWARD, THE CONTRACTOR WAS TO FURNISH 75 TO 100 LABORERS FOR THE SERVICES INVOLVED, AND THE BID PRICE WAS THE AMOUNT TO BE CHARGED THE GOVERNMENT FOR FURNISHING THE LABORERS. THE BID PRICE WAS $2.33 PER HOUR AS "STRAIGHT TIME" CHARGE, $3.50 PER HOUR AS "OVERTIME CHARGE," AND $2.58 PER HOUR AS "SECOND SHIFT" CHARGE PER LABORER. PARAGRAPHS 8, 9, AND 10 AT PAGE 5 OF THE CONTRACT PROVIDE AS FOLLOWS:

"8. LOCATION OF STORES DEPOTS AND THE REGULAR WORK HOURS ARE LISTED BELOW. BIDDER WILL INDICATE, BY PLACING AN (X) IN THE SPACE PROVIDED, THE LOCATION ON WHICH HE WISHES TO BID.

"/A) GSA STORES DEPOT, 1070 SAN MATEO AVENUE, SOUTH SAN FRANCISCO, CALIFORNIA; HOURS OF WORK : A.M. TO 4:30 P.M. MONDAY THRU FRIDAY. ( X (

"/C) GSA STORES DEPOT ANNEX, WAREHOUSE NO. 3, OAKLAND ARMY TERMINAL, OAKLAND 14, CALIFORNIA; HOURS OF WORK 7:30 A.M. TO 4:00 P.M. MONDAY THRU FRIDAY. ( X (

"9. STRAIGHT TIME: STRAIGHT TIME SHALL BE CONSIDERED TO BE WORK PERFORMED DURING THE HOURS CITED ABOVE.

"10. OVERTIME: OVERTIME SHALL BE CONSIDERED TO BE THE TIME WORKED BEYOND THE REGULAR 8 HOUR DAY BY THE SAME EMPLOYEE, INCLUDING SATURDAY, EXCLUSIVE OF SUNDAYS AND HOLIDAYS.'

WITH RESPECT TO THE ABOVE-STATED PARAGRAPHS IT IS ADMINISTRATIVELY REPORTED THAT SINCE SATURDAY IS NOT AN ORDINARY WORKING DAY AT THE DEPOTS INVOLVED, NO REFERENCE WAS MADE TO IT THEREIN. HOWEVER, SINCE THE PURPOSE OF THE CONTRACT WAS TO HAVE LABOR AVAILABLE FOR SERVICING DURING PEAK SEASONS, THE GENERAL SERVICES ADMINISTRATION HAS ALWAYS CONTEMPLATED THE USE OF SUCH SERVICES AT OTHER THAN STANDARD WORKING HOURS. HENCE, IT WAS DECIDED, AS SET FORTH IN ARTICLE 10, THAT THE CONTRACTOR MIGHT WORK AN 8- HOUR DAY ON SATURDAYS AND IN EXCESS OF A 40 HOUR WEEK WITHOUT OVERTIME PAYMENT. THIS WAS THE PURPOSE IN USING THE CLAUSE IN ARTICLE 10--- "INCLUDING SATURDAY--- " AND USING THE EXCLUSION CLAUSE "EXCLUSIVE OF SUNDAYS AND HOLIDAYS" TO DEFINE OVERTIME AS TIME WORKED BEYOND THE REGULAR 8-HOUR DAY BY THE SAME EMPLOYEE.

YOU CONTEND THAT SINCE THE DAYS MONDAY THROUGH FRIDAY WERE STATED IN PARAGRAPH 8 OF THE CONTRACT TO BE THE NORMAL TOUR OF DUTY AT THE WAREHOUSES INVOLVED, ANY DAYS OTHER THAN THOSE SHOULD BE COUNTED AS OVERTIME DAYS. WE DO NOT AGREE WITH YOUR CONTENTION. IT IS OUR VIEW THAT PARAGRAPH 10 OF THE CONTRACT SPECIFICALLY INCLUDED SATURDAY TO SHOW THE INTENTION THAT ONLY TIME WORKED BEYOND EIGHT HOURS ON SATURDAY WAS TO BE REGARDED AS OVERTIME, AND NOT ANY HOURS WORKED ON SATURDAY. THIS IS BORNE OUT BY THE DEFINITE EXCLUSION CLAUSE RELATING TO SUNDAYS AND HOLIDAYS, AND IT WOULD SEEM THAT IF THE WHOLE DAY OF SATURDAY WAS INTENDED TO BE COUNTED IN THE OVERTIME CATEGORY, THEN THE EXCLUSION CLAUSE WOULD HAVE READ "EXCLUSIVE OF SATURDAYS, SUNDAYS, AND IDAYS.' IN THIS CONNECTION, IT HAS BEEN HELD THAT SATURDAY IS TO BE COUNTED AS ONE WORKING DAY, EVEN THOUGH LABOR RULES REQUIRE SUSPENSION OF WORK ON SATURDAY AFTERNOON. 17A C.J.S. CONTRACTS SEC. 360.

ACCORDINGLY, BASED ON THE FOREGOING AND THE FACT THAT PARAGRAPH 10 OF THE CONTRACT OPERATED TO PUT THE CONTRACTOR ON NOTICE THAT SATURDAY WAS NOT TO BE REGARDED AS TOTALLY WITHIN THE OVERTIME CATEGORY, YOUR CLAIM FOR ADDITIONAL OVERTIME COMPENSATION MUST BE DISALLOWED.