B-44894, JANUARY 30, 1945, 24 COMP. GEN. 565

B-44894, JANUARY 30, 1945, 24 COMP. GEN. 565

CONTRACTS - COST-PLUS - EMPLOYEES' TRANSPORTATION, ETC., EXPENSES THE PROVISIONS OF A COST-PLUS-A-FIXED-FEE CONTRACT AUTHORIZING REIMBURSEMENT OF THE CONTRACTOR'S EXPENDITURES FOR THE TRANSPORTATION, ETC., OF EMPLOYEES "TRANSFERRED" TO OR FROM THE PLANT OPERATED UNDER THE CONTRACT ARE APPLICABLE ONLY TO EMPLOYEES IN A REGULAR DUTY STATUS FOR THE CONTRACTOR PRIOR TO ASSIGNMENT TO THE CONTRACT OPERATIONS, AND HAVE NO APPLICATION TO NEW EMPLOYEES SPECIFICALLY HIRED FOR WORK UNDER THE CONTRACT, INCLUDING THOSE REPORTING FOR WORK AT THE CONTRACT SITE AFTER UNDERGOING PRELIMINARY TRAINING AT ONE OF THE CONTRACTOR'S PLANTS -- THE COST OF TRANSPORTATION, ETC., OF SUCH EMPLOYEES BEING PERSONAL EXPENSES INCIDENT TO EMPLOYMENT, IN THE ABSENCE OF AN AGREEMENT OR UNDERSTANDING OTHERWISE. UNDER A COST-PLUS-A-FIXED-FEE CONTRACT PROVIDING FOR REIMBURSEMENT OF THE COSTS OF TRANSFERRING EMPLOYEES "TO OR FROM THE PLANT" AND "FROM THE CONTRACTOR'S PLANTS * * * TO THE PLANT," AS WELL AS UNDER THE APPLICABLE POLICY OF THE CONTRACTOR TO ASSUME EMPLOYEES' COSTS OF TRANSFERRING "FROM ONE LOCATION TO ANOTHER," THE TRANSPORTATION COSTS OF EMPLOYEES PROCEEDING CIRCUITOUSLY FROM THE CONTRACTOR'S PLANT, AT WHICH ASSIGNED FOR TRAINING FOR CONTRACT OPERATIONS, TO THE CONTRACT SITE VIA THEIR HOMES, PLUS THE COSTS OF TRANSPORTING THEIR FAMILIES AND HOUSEHOLD EFFECTS FROM THEIR HOMES TO THE CONTRACT SITE, WOULD NOT BE REIMBURSABLE IN EXCESS OF THE COSTS OF SUCH TRANSPORTATION VIA DIRECT ROUTE FROM THE CONTRACTOR'S PLANT. IN THE ABSENCE OF THE APPROVAL "IN ADVANCE IN WRITING BY THE CONTRACTING OFFICER IN SPECIFIC CASES" REQUIRED BY A COST-PLUS-A-FIXED FEE CONTRACT AS A CONDITION TO REIMBURSEMENT OF COSTS INCURRED IN TRANSFERRING EMPLOYEES TO OR FROM THE PLANT OPERATED UNDER CONTRACT, REIMBURSEMENT OF SUCH COSTS IS UNAUTHORIZED, EVEN THOUGH THE CONTRACTING OFFICER'S REPRESENTATIVE MAY HAVE HAD KNOWLEDGE OF THE FACT THAT THE CONTRACTOR WAS SENDING EMPLOYEES TO THE CONTRACT SITE WITHOUT OBTAINING THE REQUIRED ADVANCE APPROVAL.

COMPTROLLER GENERAL WARREN TO LT. COL. FRED O. TIFFANY, U.S. ARMY, JANUARY 30, 1945:

THERE HAS BEEN RECEIVED FROM THE FISCAL DIRECTOR, HEADQUARTERS, ARMY SERVICE FORCES, BUREAU VOUCHER NO. A-7094, PROPOSING PAYMENT OF THE SUM OF $24,869.22, TO REMINGTON ARMS COMPANY, INCORPORATED, COST-PLUS-A FIXED-FEE CONTRACTOR UNDER CONTRACT NO. 2-ORD-484, DATED NOVEMBER 20, 1940, AS AMENDED, WITH THE REQUEST THAT AN ADVANCE DECISION BE RENDERED AS TO WHETHER PAYMENT OF SAID VOUCHER IS AUTHORIZED.

CONTRACT NO. R-ORD-484, PROVIDES, GENERALLY, FOR MANAGEMENT SERVICES IN CONNECTION WITH THE CONSTRUCTION OF AN ORDNANCE MANUFACTURING PLANT AT INDEPENDENCE, MISSOURI, ON A FIXED PRICE BASIS, AND, IN CONSIDERATION OF THE REIMBURSEMENT BY THE GOVERNMENT OF THE CONTRACTOR'S EXPENDITURES AS DEFINED IN THE CONTRACT, PLUS STIPULATED FIXED FEES, FOR THE EQUIPMENT, PREPARATION FOR OPERATIONS (INCLUDING TRAINING OF PERSONNEL), AND OPERATION THEREOF UPON ITS COMPLETION.

IT APPEARS FROM THE FACTS OF RECORD THAT, IN CONNECTION WITH THE REQUIREMENT THAT THE CONTRACTOR SECURE AND TRAIN THE NECESSARY PERSONNEL FOR THE OPERATION OF THE ORDNANCE MANUFACTURING PLANT, ITS REGULAR PERSONNEL BEING INADEQUATE IN NUMBER FOR THE PERFORMANCE OF THE CONTRACT WORK, THE CONTRACTOR HIRED NEW EMPLOYEES FOR SPECIFIC ASSIGNMENT TO THE CONTRACT OPERATIONS AND TRAINED THEM AT ITS PLANT LOCATED IN BRIDGEPORT, CONNECTICUT. THE VOUCHER HERE INVOLVED IS SHOWN BY THE ACCOMPANYING PAPERS TO REPRESENT THE AGGREGATE OF THE AMOUNTS ALLEGED TO HAVE BEEN PAID BY THE CONTRACTOR TO THESE NEW EMPLOYEES, WITH RESIDENCES OTHER THAN IN BRIDGEPORT, IN REIMBURSEMENT FOR THE COSTS INCURRED BY THEM IN RETURNING TO THEIR RESPECTIVE HOMES UPON COMPLETION OF THEIR TRAINING AND FOR THE COST OF TRANSPORTING THEMSELVES, THEIR FAMILIES, IF ANY, AND THEIR HOUSEHOLD EFFECTS TO THE VICINITY OF THE CONTRACT OPERATIONS.

A DETAILED EXPLANATION OF THE EXPENDITURES SO INCURRED BY THE CONTRACTOR, THE QUESTIONS RAISED AS TO THE PROPRIETY OF THE REIMBURSEMENT THEREOF, AND THE CONTENTIONS OF THE CONTRACTOR IN THE MATTER, ARE SET FORTH IN A COPY OF A LETTER DATED MAY 12, 1944, FROM THE CONTRACTOR'S ASSISTANT TREASURER, TO COLONEL W. L. BELL, JR., FORMER CONTRACTING OFFICER'S REPRESENTATIVE, AS FOLLOWS:

A DEGREE OF DIFFICULTY HAS BEEN ENCOUNTERED IN THE MATTER OF SECURING REIMBURSEMENT FOR THE EXPENSE INCIDENT TO THE MOVEMENT OF EMPLOYEES FROM VARIOUS LOCALITIES TO THE LAKE CITY ORDNANCE PLANT UNDER CONTRACT W-ORD- 484, DURING THE PERIOD OF YOUR ASSIGNMENT AS CONTRACTING OFFICER'S REPRESENTATIVE UNDER THAT CONTRACT AND AS COMMANDING OFFICER OF THE LAKE CITY ORDNANCE PLANT. THE INDICATED DIFFICULTY IS DUE TO A MISUNDERSTANDING AS TO THE DISTINCTIONS ESTABLISHED BY THIS COMPANY IN THE MOVEMENT OF CERTAIN CLASSES OF PERSONNEL TO THE PLANT SITE, AND AS WELL, A FURTHER ELEMENT CONSTITUTING A BAR TO PROMPT REIMBURSEMENT HAS BEEN INTRODUCED THROUGH THE STRICT APPLICATION OF THE CONTRACT PROVISION AFFECTING THE MOVEMENT OF PERSONNEL, THIS LAST ELEMENT CONSTITUTING A BAR TO PROMPT REIMBURSEMENT HAS BEEN INTRODUCED THROUGH THE STRICT APPLICATION OF THE CONTRACT PROVISION AFFECTING THE MOVEMENT OF PERSONNEL, THIS LAST ELEMENT HAVING BEEN ESTABLISHED IN A REVIEW OF THE CASE BY THE LEGAL SECTION OF THE OFFICE OF THE CHIEF OF ORDNANCE. THE RECORD INDICATES THAT YOUR TOUR OF DUTY AT THE LAKE CITY ORDNANCE PLANT EXTENDED FROM JANUARY 15 THROUGH SEPTEMBER 15, 1941, A PERIOD DURING WHICH PRACTICALLY ALL OF THE MOVEMENT WAS ACCOMPLISHED AND IN RECOGNITION OF THE FACT THAT YOU ARE FAMILIAR WITH THE WORK ACCOMPLISHED AND IN COMPANY DURING THAT PERIOD, IT IS REQUESTED THAT YOU REVIEW THE DETAILS SET FORTH IN THIS LETTER AND ADVISE THE PRESENT COMMANDING OFFICER AT THE LAKE CITY ORDNANCE PLANT OF YOUR FINDINGS AND RECOMMENDATIONS, IN ORDER THAT THIS OFFICE MAY REQUEST RECONSIDERATION BY THE LEGAL SECTION OF THE OFFICE OF THE CHIEF OF ORDNANCE TO PROVIDE REIMBURSEMENT FOR THE EXPENDITURES INVOLVED. AS A MATTER OF INFORMATION, BE ADVISED THAT THE PRESENT COMMANDING OFFICER AT THE LAKE CITY ORDNANCE PLANT HAS RECOMMENDED THAT PAYMENTS ON THIS ACCOUNT BE ALLOWED, BUT INASMUCH AS HE WAS NOT IN COMMAND DURING THE PERIOD INVOLVED, AN EXPRESSION OF OPINION FROM YOU WILL BE OF ASSISTANCE TO HIM, AND TO HIS COMPANY, IN PROCESSING THIS ITEM FOR REIMBURSEMENT.

THE REFERENCE CONTRACT PROVIDES UNDER TITLE III, ARTICLE III-A-1 THAT THE CONTRACTOR SHALL PERFORM "ALL (OTHER/SERVICES INCIDENT TO SETTLING UP AN EFFICIENT AND GOING OPERATING FORCE," AND IN ACCOMPLISHING THIS AND SEVERAL PROVISIONS UNDER TITLE V OF THE CONTRACT SPECIFICALLY RECOGNIZE THE NECESSITY OF TRANSFERRING EMPLOYEES, AND AS WELL, MOVING EMPLOYEES INVOLVED IN THE TRAINING PROGRAM TO THE PLANT SITE. TITLE V, LIKEWISE, DIRECTLY PROVIDES THAT THE COSTS INCURRED IN CONNECTION THEREWITH ARE REIMBURSABLE UNDER THE CONTRACT, SUBJECT TO THE LIMITATION ( ARTICLE V-A-1 (J) ( THAT THE "ALLOWANCES OF COST * * * SHALL CONFORM TO AND NOT EXCEED THE ORDINARY ALLOWANCES AUTHORIZED BY THE CONTRACTOR FOR ITS EMPLOYEES IN THE NORMAL CONDUCT OF ITS BUSINESS.' THE SUBJECT EXPENSES WERE PRESENTED FOR REIMBURSEMENT IN THE LATTER PART OF 1941, BUT IT WILL BE RECALLED THAT DUE TO SOME DOUBT ON THE PART OF THE WAR DEPARTMENT AS TO THE EXTENT TO WHICH REIMBURSEMENT COULD BE PERMITTED ON THE BASIS OF CERTAIN RULINGS OF THE COMPTROLLER GENERAL OF THE UNITED STATES, MUCH DELAY WAS ENCOUNTERED PENDING AUTHORITATIVE RULINGS AS TO WHETHER GOVERNMENT TRAVEL REGULATIONS WOULD APPLY, WHETHER RECEIPTS WOULD BE REQUIRED, ETC., AND WHEN THESE MATTERS WERE FINALLY RESOLVED, IN THE LATTER PART OF 1942, IT WAS EXPECTED THAT REIMBURSEMENT WOULD PROCEED IN NORMAL COURSE. THE FIRST INTIMATION THAT THE THEN COMMANDING OFFICER AT THE LAKE CITY ORDNANCE PLANT WAS NOT ENTIRELY FAMILIAR WITH THE PRACTICES AND POLICIES FOLLOWED BY THIS COMPANY IN ACCOMPLISHING THE TRANSFER OF EMPLOYEES, PARTICULARLY THOSE WHO HAD BEEN TRAINED IN ACCORDANCE WITH THE PROVISIONS OF TITLE V, ARTICLE V-A-1 (Q), CAME TO THE ATTENTION OF THE COMPANY IN THE FIRST FEW MONTHS OF 1943, OVER A YEAR SUBSEQUENT TO THE PERFORMANCE OF THE TRAVEL. DOUBT WAS EXPRESSED BY THE COMMANDING OFFICER AS TO THE PROPRIETY OF THE SEPARATE TREATMENT ACCORDED THE EMPLOYEES TRAINED IN ACCORDANCE WITH ARTICLE V A-1 (Q), HAVING PERMANENT RESIDENCES OTHER THAN IN THE VICINITY OF THE LAKE CITY ORDNANCE PLANT OR BRIDGEPORT, CONNECTICUT, THE LATTER POINT BEING THE LOCATION AT WHICH THE TRAINING OF THE EMPLOYEES WAS ACCOMPLISHED.

PRIOR TO THE FORMAL PRESENTATION OF THIS MATTER BY THE COMMANDING OFFICER TO THE CHIEF OF ORDNANCE FOR ADVICE, DISCUSSIONS WERE ENTERED INTO AND THE PRACTICES WHICH HAD BEEN FOLLOWED IN THE MOVEMENT OF PERSONNEL WERE OUTLINED IN DETAIL. IN GENERAL, THE COMMANDING OFFICER CONCURRED THAT WE HAD ACTED IN CONFORMITY WITH THE LETTER AND INTENT OF THE CONTRACT AND IN LINE WITH COMPANY POLICY, BUT INSOFAR AS THE TRAVEL OF EMPLOYEES WAS ACCOMPLISHED BY OTHER THAN A DIRECT ROUTE FROM A PARTICULAR STARTING POINT (USUALLY BRIDGEPORT) TO THE LAKE CITY ORDNANCE PLANT, THE BASIS FOR A DISTINCTION BETWEEN THE TYPES OF TREATMENT AFFORDED THE PARTICULAR CLASSES OF INDIVIDUALS WAS NOT RECOGNIZED, DESPITE THE PRESENCE OF A FORMAL PROCEDURE MADE A PART OF THE ACCOUNTING MANUAL WHICH WAS FORWARDED TO YOU DURING YOUR TENURE AT LAKE CITY AS ONE OF THE SERVICES REQUIRED OF THE COMPANY, AND AS WELL, DISREGARDING THE PROVISIONS OF A POLICY STATEMENT MADE A PART OF THE MANUAL "POLICIES AND PROCEDURES RELATIVE TO OPERATION OF ORDNANCE PLANTS IN THE MANUFACTURE OF SMALL ARMS AMMUNITION BY REMINGTON ARMS COMPANY, INC.' WHICH LIKEWISE HAD BEEN PREPARED FOR YOUR USE IN ACCORDANCE WITH TITLE VI, ARTICLE VI-O OF THE CONTRACT.

THE SO-CALLED "INDIRECT TRAVEL" WHEREBY EMPLOYEES PROCEEDED TO THE LAKE CITY ORDNANCE PLANT BY OTHER THAN THE MOST DIRECT ROUTE AVAILABLE CAME ABOUT AS A RESULT OF THE TRAINING PROGRAM ACCOMPLISHED IN BRIDGEPORT PURSUANT TO THE APPROVAL OF THE ORDNANCE DEPARTMENT. THE PERSONNEL ON THE ROLLS OF THIS COMPANY AT THE TIME THE CONTRACT WAS ENTERED INTO WERE, OF COURSE, INADEQUATE IN NUMBER FOR THE PERFORMANCE OF THE TREMENDOUS TASK REQUIRED OF BUILDING A PLANT IN LAKE CITY, EQUIPPING IT AND PROVIDING FOR THE MANUFACTURE OF AMMUNITION AS QUICKLY AS POSSIBLE. ACCORDINGLY, ADDITIONAL EMPLOYEES WERE HIRED, AND WHILE AN EFFORT WAS MADE TO SECURE THE REQUIRED NUMBER OF EMPLOYEES IN THE VICINITY OF THE PLANT SITE, IT WAS NECESSARY THAT MEN BE HIRED WHEREVER POSSIBLE AND BROUGHT TO BRIDGEPORT FOR TRAINING. IT WAS IMPOSSIBLE AT THE TIME OF HIRING TO ADVISE THE EMPLOYEES AS TO THE PRECISE PERIOD DURING WHICH THEY WOULD BE IN TRAINING BY BRIDGEPORT, AND ACCORDINGLY, SOME PROVISION WAS NECESSARY AT THE CONCLUSION OF THE TRAINING PERIOD TO EFFECT THE DOMESTIC READJUSTMENTS CAUSED BY THE TRANSFER OF A FAMILY FROM ONE LOCATION TO ANOTHER. THE ESTABLISHED POLICY OF THIS COMPANY AS SET FORTH IN THE POLICY MANUAL PROVIDES THAT "ALL TRANSPORTATION WHICH IS IN EXCESS OF THE MOST DIRECT AND ECONOMICAL ROUTE MUST BE ACCOMPANIED BY AN EXPLANATION.' IN POINT OF FACT THIS POLICY HAS BEEN FOLLOWED BY THE COMPANY OVER A PERIOD OF YEARS PRIOR TO THE EFFECTIVE DATE OF CONTRACT W-ORD-484, AND IT WAS ALWAYS RECOGNIZED THAT AN ADEQUATE EXPLANATION WOULD PERMIT THE ALLOWANCE OF COST TO AN EMPLOYEE IN EXCESS OF THAT APPLICABLE TO THE PERFORMANCE OF DIRECT TRAVEL BETWEEN TWO POINTS. IN ACCORDANCE WITH THIS EXCEPTION TO THE DIRECT MOVEMENT OF EMPLOYEES, THREE CATEGORIES WERE ESTABLISHED TO PROVIDE FOR THE MOVEMENT OF INDIVIDUALS FROM A PARTICULAR LOCATION TO THE LAKE CITY ORDNANCE PLANT. THESE CLASSIFICATIONS WERE OUTLINED IN A FORMAL PROCEDURE MADE A PART OF THE ACCOUNTING MANUAL FORWARDED TO YOUR DURING THE PERIOD OF YOUR ASSIGNMENT AT THE LAKE CITY ORDNANCE PLANT. THE CLASSIFICATIONS ARE OUTLINED AS FOLLOWS:

1. EMPLOYEE WITH PERMANENT PLACE OF RESIDENCE IN VICINITY OF HIS ASSIGNED DEFENSE PLANT.

2. EMPLOYEE WITH PERMANENT RESIDENCE LOCATED IN BRIDGEPORT OR VICINITY.

3. EMPLOYEE WITH PERMANENT RESIDENCE NOT LOCATED IN VICINITY OF HIS ASSIGNED DEFENSE PLANT OR BRIDGEPORT.

UNDER CLASSIFICATIONS NO. 1 AND NO. 2, THE EMPLOYEE WAS EXPECTED TO PROCEED TO THE PLANT SITE WITHOUT DEVIATION FROM THE DIRECT ROUTE BETWEEN BRIDGEPORT AND THEIR PLACES OF ORIGINAL DOMICILE, THERETO CONCLUDE ARRANGEMENTS FOR THE DEPARTURE OF THEMSELVES, THEIR FAMILIES, THEIR HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM THEIR THEN PERMANENT RESIDENCES TO THE LAKE CITY AREA. ACCORDINGLY, IT IS CONSIDERED THAT THOSE PERSONS WHO PROCEEDED FROM THE TRAINING POINT TO HOMES NOT LOCATED IN THE VICINITY OF THE PLANT OR BRIDGEPORT, AND THENCE TO THE LAKE CITY ORDNANCE PLANT FALL WITHIN A GIVEN CLASS FOR WHICH THE "EXPLANATION" REQUIRED BY THE POLICY FOR TRAVEL OTHER THAN THAT WHICH IS CONSIDERED DIRECT IS PROVIDED IN A FORMAL MANNER BY WAY OF DIRECT PROCEDURE.

AS INDICATED, THESE FACTS WERE BROUGHT TO THE ATTENTION OF THE COMMANDING OFFICER, BUT AN EXAMINATION OF THE FILE WHICH WAS FORWARDED TO THE OFFICE OF THE CHIEF OF ORDNANCE AND THENCE TO THE SERVICES OF SUPPLY IN THE EARLY PART OF 1943, DOES NOT DISCLOSE THAT ANY ATTEMPT WAS MADE TO DISTINGUISH BETWEEN THE DIFFERENT CATEGORIES OF EMPLOYEES INVOLVED. ON THE CONTRARY, THE QUESTION PRESENTED FOR CONSIDERATION WAS MERELY AS TO WHETHER OR NOT THE TRAVEL OF EMPLOYEES BY AN INDIRECT ROUTE FROM ONE POINT TO ANOTHER WAS PROPER FOR REIMBURSEMENT IN FULL. AS WOULD BE EXPECTED THE RESPONSE WAS IN THE NEGATIVE, AND THIS COMPANY WAS NOT ABLE TO PROCESS THE VOUCHERS FURTHER FOR REIMBURSEMENT.

THE PRESENT COMMANDING OFFICER AT THE LAKE CITY ORDNANCE PLANT RECENTLY FORWARDED THE PAPERS TO THE LEGAL SECTION, OFFICE OF THE CHIEF OF ORDNANCE, AND REQUESTED THAT THE CASE BE AGAIN EXAMINED, AND AS A RESULT OF THIS REEXAMINATION, THE PROCEDURE REFERRED TO AS GOVERNING THE MOVEMENT OF EMPLOYEES WAS BROUGHT BEFORE THAT OFFICE FOR CONSIDERATION.

IN CONNECTION WITH THIS PHASE OF THE PROBLEM, IT WILL BE GREATLY APPRECIATED IF YOU WILL REVIEW THE ATTACHMENTS CONSISTING OF AN EXCERPT FROM THE POLICY MANUAL ( EXHIBIT A) AND THE PROCEDURE ( EXHIBIT B) REFERRED TO IN THE DISCUSSION ABOVE, AND IN THE LIGHT OF YOUR KNOWLEDGE OF THE FACTS THEN EXISTING, ADVISE THE COMMANDING OFFICER AT THE LAKE CITY ORDNANCE PLANT AND THE LEGAL SECTION OF THE OFFICE OF THE CHIEF OF ORDNANCE OF YOUR RECOMMENDATIONS IN THIS MATTER. OUR APPEAL TO YOU FOR ASSISTANCE IS, OF COURSE, PREDICATED UPON YOUR FAMILIARITY WITH THE EVENTS WHICH OCCURRED DURING YOUR SERVICE AT THE LAKE CITY ORDNANCE PLANT.

AN ADDITIONAL PROBLEM HAS ARISEN WITH RESPECT TO THE MOVEMENT OF PERSONNEL TO THE LAKE CITY ORDNANCE PLANT AS A RESULT OF THE EXAMINATION OF THIS CASE BY THE OFFICE OF THE CHIEF OF ORDNANCE, INVOLVING A BASIC OBJECTION, ON THE PRESENT RECORD, TO THE ALLOWANCE OF ANY COST INCIDENT TO THE TRANSFER OF EMPLOYEES, WHETHER AS A RESULT OF THE TRAINING PROGRAM OR OTHERWISE, DUE TO THE APPLICATION OF ARTICLE V-A-1 (J) OF THE CONTRACT WHICH READS AS FOLLOWS: "SUCH PORTION OF THE TRANSPORTATION, TRAVELING AND HOTEL EXPENSE OF ENGINEERS AND OTHER EMPLOYEES OF THE CONTRACTOR AS IS ACTUALLY INCURRED IN CONNECTION WITH THIS WORK; AND WHEN APPROVED IN ADVANCE IN WRITING BY THE CONTRACTING OFFICER IN SPECIFIC CASES ALL COSTS AND EXPENSES REIMBURSED TO EMPLOYEES TRANSFERRED TO OR FROM THE PLANT ON ACCOUNT OF TRANSPORTATION AND LIVING EXPENSES OF THEMSELVES AND THEIR FAMILIES, LOSSES DUE TO SALE OF HOMES AT LESS THAN THE APPRAISAL VALUE AS FIXED BY THE CONTRACTOR IN HANDLING SIMILAR MATTERS CONCERNING ITS EMPLOYEES, UNEXPIRED LEASES, AND LIVING EXPENSES WHILE OBTAINING NEW RESIDENCES. IT IS AGREED THAT ALL ALLOWANCES OF COST UNDER THIS ITEM SHALL CONFORM TO AND NOT EXCEED THE ORDINARY ALLOWANCES AUTHORIZED BY THE CONTRACTOR FOR ITS EMPLOYEES IN THE NORMAL CONDUCT OF ITS BUSINESS.' (ITALICS SUPPLIED.)

SPECIFICALLY, THE RECORDS MAINTAINED IN CONNECTION WITH THE WORK DO NOT DISCLOSE THE EXISTENCE OF FORMAL TRAVEL ORDERS COVERING THE MOVEMENT OF AN INDIVIDUAL AND HIS FAMILY FROM A PARTICULAR LOCATION TO THE PLANT SITE, NOR DOES THERE APPEAR TO HAVE BEEN PROVIDED DURING THE PERIOD IN QUESTION A PROCEDURE SETTING FORTH THE MANNER IN WHICH THE WRITTEN APPROVAL OF THE CONTRACTING OFFICER WOULD BE SECURED. IT WILL BE RECALLED, HOWEVER, THAT THE RELATIONSHIP BETWEEN YOUR OFFICE AND THIS COMPANY IN 1941, WAS VERY CLOSE, AND AT ALL TIMES YOU WERE KEPT FULLY INFORMED AS TO THE STEPS BEING TAKEN TO ACCOMPLISH THE TASK OF PLACING THE PLANT ON AN OPERATING BASIS AS SOON AS POSSIBLE. IT IS BELIEVED THAT EVENTS WERE PROCEEDING AT TOO RAPID A PACE AT THAT TIME PERMIT COMPLIANCE WITH THE PRECISE REQUIREMENTS OF THE STANDARD REGULATIONS PRESCRIBED BY THE WAR DEPARTMENT IN THE PERFORMANCE OF CONTRACT OBLIGATIONS WITHOUT SERIOUSLY IMPEDING THE WORK THAT HAD TO BE ACCOMPLISHED, PARTICULARLY INSOFAR AS THE COMPLIANCE WAS CONFINED TO MATTERS OF FORMALITY. HOWEVER, IT IS BELIEVED THAT YOU WILL AGREE THAT THERE WAS MOST ASSUREDLY STRICT COMPLIANCE WITH THE INTENTION OF THE CONTRACT IN THAT AT NO TIME WERE YOU UNINFORMED AS TO THE STEPS BEING TAKEN BY THE COMPANY TO ACHIEVE THE DESIRED ENDS. EXECUTIVE AND ADMINISTRATIVE PERSONNEL ON THE PLANT SITE WERE ENGAGED IN THE TECHNICAL DETAILS DESIGNED TO ESTABLISH A PLANT EQUIPPED TO RECEIVE OPERATING EMPLOYEES AS SOON AS POSSIBLE, SAID EMPLOYEES EVEN THEN BEING TRAINED TO PERFORM GIVEN FUNCTIONS IN THE MANUFACTURE OF AMMUNITION AT THE NEW ORDNANCE FACILITY. AS A RESULT OF THIS DUAL ACTIVITY AND THE SEPARATION OF THE PLANT SUPERVISORS FROM THE POINT OF TRAINING, IT WAS POSSIBLE TO HAVE TRAINED EMPLOYEES READY FOR TRANSFER UPON A MOMENT'S NOTICE FROM THOSE INDIVIDUALS TO WHOM WAS ASSIGNED THE RESPONSIBILITY OF ESTABLISHING OPERATIONS. AS THE WORK AT THE PLANT SITE PROCEEDED, EMPLOYEES WERE TRANSFERRED TO KEEP PACE WITH THE WORK NOT IN AN ESTABLISHED AND ORDERLY MANNER, BUT RATHER, IN ACCORDANCE WITH THE EXIGENCIES OF THE SITUATIONS WHICH AROSE, AND THE WORK PROGRESSED THUS WITH A MINIMUM OF DELAY.

AN EXAMINATION OF THE TYPE OF PERSONNEL TRANSFERRED TO THE LAKE CITY PLANT UNDER THE CONDITIONS INDICATED MAKE IT QUITE APPARENT THAT THE CONTRACT SPECIFICALLY CONTEMPLATED SUCH TRANSFERS, THERE BEING INVOLVED( EXHIBIT C) PROCESS ENGINEERS, BALLISTICIANS, AREA SUPERVISORS, MACHINISTS, INSPECTORS, FOREMEN FOR VARIOUS MANUFACTURING AREAS, ETC. IT IS TRUE THAT SOME TIME AFTER OPERATIONS WERE ESTABLISHED ON A NORMAL BASIS AT THE PLANT, A PROCEDURE WAS ESTABLISHED WHEREBY TRAVEL ORDERS WERE SECURED FROM THE OFFICE OF THE COMMANDING OFFICER AT THE PLANT LOCATION, BUT, EVEN THEN, IT WAS NOT CONTEMPLATED BY THE ORDNANCE DEPARTMENT REPRESENTATIVES AT THE PLANT SITE AT THAT TIME THAT OUR FAILURE TO HAVE SIGNED TRAVEL ORDERS IN THE CASE OF TRAVEL ALREADY PERFORMED WOULD CONSTITUTE A BAR TO REIMBURSEMENT. IT IS NOT BELIEVED THAT THE REQUIREMENT THAT THE TRAVEL BE APPROVED IN WRITING IN SPECIFIC CASES WAS INTENDED TO DO MORE THAN TO INSURE THAT THE CONTRACTING OFFICER OR HIS REPRESENTATIVE REMAINED AT ALL TIMES FULLY AWARE OF THE PROGRESS BEING MADE BY THE CONTRACTOR UNDER THE CONTRACT, AND AS WELL, TO PLACE HIM IN A POSITION WHEREBY HE COULD APPROVE OR DISAPPROVE THE ACTION BEING TAKEN. WE BELIEVE THAT YOU WILL CONCUR WITH US IN THE BELIEF THAT THESE ENDS WERE ACCOMPLISHED, AND THAT THE CLOSENESS OF THE RELATIONSHIP DURING THE PERIOD INVOLVED WAS SUCH THAT YOU WERE KEPT FULLY INFORMED OF ALL PHASES OF THE MOVEMENT OF THE PERSONNEL TO THE PLANT SITE.

THE GENERAL SITUATION WITH RESPECT TO THE TRANSFER OF EMPLOYEES AND THE REIMBURSEMENT OF THE COST INVOLVED WAS SUMMARIZED IN A LETTER ( EXHIBIT D), DATED JULY 15, 1941, ADDRESSED TO YOUR ATTENTION BY W. U. REISINGER, TREASURER; YOUR REPLY ( EXHIBIT E), DATED JULY 21, 1941; AND A FURTHER LETTER ( EXHIBIT F), DATED AUGUST 8, 1941, FROM W. U. REISINGER TO YOU. IT IS BELIEVED THAT CORROBORATION OF THE STATEMENTS SET FORTH HEREIN EXPRESSED BY YOU TO THE COMMANDING OFFICER AT THE LAKE CITY ORDNANCE PLANT AND THE LEGAL SECTION, OFFICE OF THE CHIEF OF ORDNANCE, WILL BE OF MATERIAL ASSISTANCE IN DISPOSING OF THIS TECHNICALITY WHICH AT THE MOMENT EXISTS AS A BAR TO REIMBURSEMENT OF THE EXPENDITURES MADE BY THIS COMPANY IN THE PERFORMANCE OF ITS CONTRACT OBLIGATIONS.

THIS PRESENTATION OF THE PROBLEMS INVOLVED IN THE INSTANT CASE WAS NOT MADE WITHOUT A THOROUGH EXAMINATION OF THE COMPANY FILES, AND PURSUANT TO ADVICES RECEIVED FROM THE ORDNANCE DEPARTMENT AT LAKE CITY, TO THE EFFECT THAT THE GOVERNMENT FILES AT THAT LOCATION DID NOT DISCLOSE ADDITIONAL EVIDENCE IN WRITING PERTINENT IN THIS REGARD.

THE ENCLOSURES REFERRED TO IN THE SAID LETTER WERE NOT INCLUDED IN THE PAPERS TRANSMITTED TO THIS OFFICE.

IN A COMMUNICATION DATED JUNE 3, 1944, TO THE COMMANDING OFFICER OF THE LAKE CITY ORDNANCE PLANT, INDEPENDENCE, MISSOURI, COLONEL W. L. BELL, JR., CONFIRMS THE CONTRACTOR'S STATEMENT THAT THE TRAVEL OF THE EMPLOYEES INVOLVED OCCURRED DURING HIS TENURE AS CONTRACTING OFFICER'S REPRESENTATIVE, THAT HE HAD KNOWLEDGE THEREOF, AND RECOMMENDS THAT THE CONTRACTOR'S CLAIM, AS COVERED BY THE INSTANT VOUCHER, BE ALLOWED.

RELATIVE TO REIMBURSEMENT FOR THE CONTRACTOR'S EXPENDITURES, IT APPEARS FROM THE PERTINENT PROVISIONS OF THE CONTRACT, PARTICULARLY ARTICLE V-A-1 (J), QUOTED IN THE CONTRACTOR'S LETTER OF MAY 12, 1944, THAT THE CONTRACT PROVIDES FOR THE REIMBURSEMENT OF "ALL COSTS AND EXPENSES REIMBURSED TO EMPLOYEES TRANSFERRED TO OR FROM THE PLANT ON ACCOUNT OF TRANSPORTATION AND LIVING EXPENSES OF THEMSELVES AND THEIR FAMILIES," SUBJECT TO THE LIMITATION THAT "ALLOWANCES OF COST * * * CONFORM TO AND NOT EXCEED THE ORDINARY ALLOWANCES AUTHORIZED BY THE CONTRACTOR FOR ITS EMPLOYEES IN THE NORMAL CONDUCT OF ITS BUSINESS," AND, PROVIDED FURTHER, THAT THE TRAVEL INVOLVED BE ,APPROVED IN ADVANCE IN WRITING BY THE CONTRACTING OFFICER IN SPECIFIC CASES.' WITH RESPECT TO THE ALLOWANCES OF SUCH COSTS BY THE CONTRACTOR IN THE NORMAL CONDUCT OF ITS BUSINESS, THE CONTRACTOR'S MANUAL ENTITLED,"POLICIES AND PROCEDURES RELATIVE TO OPERATION OF ORDNANCE PLANTS IN THE MANUFACTURE OF SMALL ARMS AMMUNITION," PROVIDES, UNDER THE HEADING " POLICY COVERING COST OF TRANSFERRING EMPLOYEES," IN PART, THAT:

IT IS THE COMPANY'S POLICY TO ASSUME ALL COSTS AND EXPENSES INCURRED IN TRANSFERRING AN EMPLOYEE FROM ONE LOCATION TO ANOTHER, AS FOLLOWS:

1. COST OF TRANSPORTING THE EMPLOYEE AND HIS FAMILY, IF ANY.

2. COST OF TRANSPORTING THE EMPLOYEE'S HOUSEHOLD AND PERSONAL EFFECTS * *

IT THUS APPEARS FROM THE TERMS OF THE CONTRACT, CONSIDERED IN THE LIGHT OF THE CONTRACTOR'S ESTABLISHED POLICY FOR THE TREATMENT OF EMPLOYEES, THAT WHILE, IF OTHERWISE CORRECT AND PROPER, TRANSPORTATION EXPENSES OF THE NATURE HERE INVOLVED INCURRED BY THE CONTRACTOR INCIDENT TO THE TRANSFER OF EMPLOYEES TO OR FROM THE SITE OF THE CONTRACT OPERATIONS ARE REIMBURSABLE, THE USE OF THE WORD "TRANSFER," IN BOTH THE CONTRACT AND IN THE CONTRACTOR'S MANUAL OF POLICIES AND PROCEDURES, WOULD APPEAR TO IMPLY THAT, TO BE ELIGIBLE FOR THE REIMBURSEMENT OF TRANSPORTATION COSTS INCURRED, THE EMPLOYEE BE IN A REGULAR DUTY STATUS FOR THE CONTRACTOR PRIOR TO HIS BEING ASSIGNED TO THE CONTRACT OPERATIONS. THAT IS TO SAY, IN THE ABSENCE OF AN AGREEMENT OR UNDERSTANDING TO THE CONTRARY--- THE EXISTENCE OF WHICH IS NOT HERE SHOWN--- THE EXPENSES INCURRED BY A NEW EMPLOYEE, WHO WAS HIRED FOR SPECIFIC ASSIGNMENT AT THE CONTRACT SITE, IN REPORTING FOR WORK AT THE LAKE CITY ORDNANCE PLANT, INDEPENDENCE, MISSOURI, WOULD APPEAR TO BE A CHARGE PROPERLY FOR PAYMENT BY THE EMPLOYEE AS A PERSONAL EXPENSE INCIDENT TO HIS EMPLOYMENT AND, ACCORDINGLY, THE CONTRACTOR'S PAYMENT THEREOF IS IN THE NATURE OF A GRATUITY, FOR WHICH REIMBURSEMENT IS NOT AUTHORIZED UNDER THE TERMS OF THE CONTRACT. FURTHER, ASSUMING FOR PRESENT PURPOSES, THOUGH NOT CONCEDED, THAT THE TRAINING PERIOD SERVED BY THE NEWLY HIRED EMPLOYEES AT THE CONTRACTOR'S PLANT AT BRIDGEPORT, CONNECTICUT, ENTITLED THEM, UNDER THE CONTRACTOR'S POLICY AND PROCEDURE, TO THE BENEFITS OF EMPLOYEES IN A REGULAR DUTY STATUS AT THE PLANT, THE LANGUAGE OF THE CONTRACT UNDER ARTICLE V-A-1 (J) AND V-A-1 (Q), PROVIDING FOR THE REIMBURSEMENT OF THE COST OF TRANSFERRING ANY PERSONNEL FROM THE CONTRACTOR'S PLANTS * * * TO THE PLANT," AS WELL AS THE LANGUAGE FOUND IN THE CONTRACTOR'S MANUAL, AS QUOTED ABOVE, PROVIDING FOR THE ASSUMPTION BY THE CONTRACTOR OF THE COSTS INCURRED IN TRANSFERRING AN EMPLOYEE "FROM ONE LOCATION TO ANOTHER," PERMITS OF NO CONSTRUCTION OTHER THAN THAT THE GOVERNMENT'S OBLIGATION, IN ANY EVENT, TO REIMBURSE THE CONTRACTOR FOR TRANSPORTATION COSTS INCURRED IN THE TRANSFER OF PERSONNEL, IS RESTRICTED TO TRANSFER FROM BRIDGEPORT, CONNECTICUT, OR FROM THE LOCATION OF SOME OTHER PLANT OR OFFICE OPERATED BY THE CONTRACTOR, TO THE VICINITY OF THE CONTRACT SITE. HENCE, IN THE INSTANT CASE, TO THE EXTENT THAT THE AMOUNT PAID BY THE CONTRACTOR FOR THE COST OF INDIRECT OR CIRCUITOUS TRAVEL BY THE EMPLOYEES, THEIR FAMILIES, AND THEIR HOUSEHOLD EFFECTS FROM SUCH POINTS TO THE CONTRACT SITE IS IN EXCESS OF WHAT IT WOULD HAVE COST TO TRANSPORT THE SAID EMPLOYEES, THEIR FAMILIES, AND THEIR HOUSEHOLD EFFECTS BY A DIRECT ROUTE FROM BRIDGEPORT TO THE VICINITY OF THE CONTRACT OPERATIONS, REIMBURSEMENT THEREFOR, EVEN IF OTHERWISE CORRECT AND PROPER, IS NOT AUTHORIZED. CF. 24 COMP. GEN. 267. IN THIS CONNECTION, SO FAR AS CONCERNS THE CONTRACTOR'S STATEMENT THAT ITS MANUAL CONTAINING THE POLICIES AND PROCEDURES OF THE COMPANY PROVIDES THAT "ALL TRANSPORTATION WHICH IS IN EXCESS OF THE MOST DIRECT AND ECONOMICAL ROUTE MUST BE ACCOMPANIED BY AN EXPLANATION," AND THAT, PURSUANT THERETO, AN ADEQUATE EXPLANATION ALWAYS HAS BEEN ACCEPTED AS PERMITTING THE ALLOWANCE OF COST TO AN EMPLOYEE IN EXCESS OF THAT APPLICABLE TO THE PERFORMANCE OF DIRECT TRAVEL BETWEEN TWO POINTS, ASIDE FROM THE OBVIOUS FACT THAT THE CONTRACTOR'S POLICY MAY NOT OPERATE TO INCREASE THE OBLIGATIONS OF THE GOVERNMENT AS FIXED BY THE SPECIFIC TERMS OF THE CONTRACT, THE QUOTED PROVISION, RELIED UPON BY THE CONTRACTOR AS SUPPORTING ITS CLAIM, APPEARS TO BE AN EXCERPT FROM ITS MANUAL OF PROCEDURES AND POLICIES RELATING TO " EXPENSE OF EMPLOYEES TRAVELING ON COMPANY BUSINESS" AND IS NOT CONTAINED IN THAT PORTION THEREOF RELATING TO " POLICY COVERING COST OF TRANSFERRING EMPLOYEES.'

FURTHER, UNDER THE TYPE OF CONTRACT HERE INVOLVED, WHICH PROVIDES FOR THE REIMBURSEMENT BY THE GOVERNMENT OF THE CONTRACTOR'S COSTS, AS DEFINED THEREIN, THE AUDIT FUNCTION OF THIS OFFICE IS TO ASCERTAIN NOT ONLY THAT THE EXPENDITURES FOR WHICH REIMBURSEMENT IS SOUGHT CONSTITUTE A PROPER CHARGE TO THE GOVERNMENT UNDER THE TERMS OF THE CONTRACT BUT, ALSO, THAT THE AMOUNT CLAIMED ACTUALLY WAS EXPENDED; AND, IN ORDER FOR THIS OFFICE TO PERFORM THAT FUNCTION, IT, CONSISTENTLY, HAS BEEN REQUIRED THAT THE CONTRACTOR FURNISH SUBSTANTIATING DOCUMENTS AND DATA FROM WHICH A DETERMINATION OF THE CORRECTNESS OF THE CHARGES PROPERLY MAY BE MADE. COMP. GEN. 341; ID. 664; 22 ID. 57; 23 ID. 707. IN SUPPORT OF THE AMOUNT CLAIMED TO HAVE BEEN EXPENDED BY THE CONTRACTOR AS TRANSPORTATION COSTS, THE VOUCHER HERE INVOLVED CONTAINS MERELY A LISTING OF THE NAMES OF THE EMPLOYEES INVOLVED AND THE AMOUNTS PURPORTED TO HAVE BEEN PAID TO EACH EMPLOYEE. OBVIOUSLY, SUCH IS OF LITTLE, IF ANY, PROBATIVE VALUE IN ANY DETERMINATION AS TO WHETHER THE ALLEGED EXPENDITURES CONSTITUTE A PROPER CHARGE TO THE GOVERNMENT UNDER THE TERMS OF THE CONTRACT AND, ON THE BASIS THEREOF, EVEN IF OTHERWISE CORRECT AND PROPER, THIS OFFICE WOULD HAVE NO ALTERNATIVE OTHER THAN TO WITHHOLD APPROVAL OF THE PAYMENT OF THE AMOUNT CLAIMED.

HOWEVER, SEPARATE AND APART FROM THE FOREGOING, AND AS A FURTHER BAR TO PAYMENT OF THE VOUCHER, REPORTED BY THE CONTRACTOR IN ITS LETTER OF MAY 12, 1944, AS HAVING BEEN RAISED BY THE LEGAL SECTION OF THE OFFICE OF THE CHIEF OF ORDNANCE, AND WHICH EFFECTIVELY AND FINALLY FORECLOSES ANY RIGHT WHICH THE CONTRACTOR OTHERWISE MIGHT HAVE TO THE REIMBURSEMENT OF ANY PART OF THE AMOUNT CLAIMED, IT IS ADMITTED BY THE CONTRACTOR THAT, NOTWITHSTANDING THE SPECIFIC TERMS OF THE CONTRACT, UNDER WHICH REIMBURSEMENT FOR THE COST OF TRANSFERRING EMPLOYEES IS MADE DEPENDENT UPON APPROVAL THEREOF "IN ADVANCE IN WRITING BY THE CONTRACTING OFFICER IN SPECIFIC CASES," NO SUCH ADVANCE APPROVAL IN THE FORM PRESCRIBED WAS REQUESTED OR OBTAINED. IT, REPEATEDLY, HAS BEEN HELD THAT WHERE, AS HERE, A PROVISION IN A CONTRACT CONDITIONS PAYMENT BY THE GOVERNMENT UPON COMPLIANCE WITH A PRESCRIBED PROCEDURE, THE CONTRACTOR, HAVING ACCEPTED AND AGREED THERETO, IS NOT FREE TO ACT IN DISREGARD THEREOF AND THAT THE FAILURE TO COMPLY WITH THIS PROVISION IS SUFFICIENT WITHOUT ANYTHING ELSE TO PREVENT RECOVERY. UNITED STATES V. BLAIR, 321 U.S. 730; PLUMLEY V. UNITED STATES, 226 U.S. 545; YUHASZ V. UNITED STATES, 109 F.2D 467; LOUISE HARDWICK, ADMINISTRATRIX V. UNITED STATES, 95 C.1CLS. 336. THE EVIDENT PURPOSE OF THIS PROVISION WAS TO PROVIDE A MEANS FOR CURTAILING AND SUPERVISING THE REIMBURSABLE TRANSPORTATION COSTS INCURRED BY THE CONTRACTOR, AND THE GOVERNMENT MAY NOT BE DEPRIVED, BY THE CONTRACTOR'S ACTIONS, OF THE BENEFIT OF SUCH A SAFEGUARD. IN ANY EVENT, IT MUST BE ASSUMED THAT THE PARTIES IN INSERTING THE PROVISION ATTACHED BOTH VALUE AND IMPORTANCE TO ITS PRECISE TERMS AND, BEING A CONDITION PRECEDENT, COMPLIANCE THEREWITH MUST BE SHOWN. UNITED STATES V. CUNNINGHAM, 125 F.2D 28. FURTHER, SO FAR AS CONCERNS THE REPORTED KNOWLEDGE BY THE CONTRACTING OFFICER'S REPRESENTATIVE THAT THE CONTRACTOR WAS SENDING EMPLOYEES TO THE PROJECT SITE WITHOUT REQUESTING APPROVAL THEREOF IN ADVANCE IN WRITING, NOWHERE IS THERE SPELLED OUT IN THE CONTRACT ANY DUTY ON THE PART OF THE GOVERNMENT OR ITS OFFICERS TO TAKE AFFIRMATIVE STEPS TO PREVENT THE CONTRACTOR FROM INCURRING EXPENDITURES WHICH MAY NOT BE REIMBURSED UNDER THE TERMS OF THE CONTRACT. NOR MAY SUCH KNOWLEDGE ON THE PART OF THE CONTRACTING OFFICER'S REPRESENTATIVE BE REGARDED AS A PROPER LEGAL BASIS FOR RELIEVING THE CONTRACTOR OF OBTAINING APPROVAL OF THE TRANSPORTATION OF EMPLOYEES "IN ADVANCE IN WRITING BY THE CONTRACTING OFFICER IN SPECIFIC CASES.' UNITED STATES V. CUNNINGHAM, SUPRA.

ACCORDINGLY, THE VOUCHER, TOGETHER WITH ACCOMPANYING PAPERS, IS RETURNED AND YOU ARE ADVISED THAT PAYMENT THEREON IS NOT AUTHORIZED.