A-12278, FEBRUARY 15, 1926, 5 COMP. GEN. 631

A-12278, FEBRUARY 15, 1926, 5 COMP. GEN. 631

TRANSPORTATION OF MAILS - RURAL ROUTE CONTRACTS - ADDITIONAL SERVICE UNDER A CONTRACT FOR THE TRANSPORTATION OF MAIL ON A STAR ROUTE WHICH REQUIRES THE CONTRACTOR TO RENDER ADDITIONAL SERVICE ON DEMAND AND PROVIDES A PRO RATA INCREASE OF COMPENSATION THEREFOR, ADDITIONAL REGULAR SERVICE MAY NOT BE REQUIRED WITHOUT PAYMENT AND MUST BE AUTHORIZED IN ADVANCE BY THE POSTMASTER GENERAL. NO PAYMENT MAY BE MADE FOR REGULAR SERVICE RENDERED IN ADVANCE OF AN ORDER FROM THE POSTMASTER GENERAL. SERVICE RENDERED ON A STAR ROUTE WITHOUT ANY DEFINITE AGREEMENT FOR PAYMENT MAY NOT THEREAFTER BE MADE THE SUBJECT OF CONTRACTS OPERATING RETROACTIVELY, BUT IF IT WAS TEMPORARY OR EMERGENCY SERVICE NOT IN THE NATURE OF REGULAR SERVICE, PAYMENT IS AUTHORIZED OF THE FAIR AND REASONABLE VALUE OF THE SERVICE SO RENDERED, SUCH CLAIMS TO BE SUBMITTED TO THE GENERAL ACCOUNTING OFFICE FOR DIRECT SETTLEMENT.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, FEBRUARY 15, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 26, 1926, REQUESTING RECONSIDERATION OF THE DECISION OF JANUARY 13, 1926, 5 COMP. GEN. 475, AND A DECISION UPON CERTAIN ADDITIONAL QUESTIONS THEREIN SUBMITTED AS FOLLOWS:

WITH REFERENCE TO YOUR DECISION OF JANUARY 13, 1926 (A-12278), WITH REGARD TO THE PAYMENT TO PERRY E. KYSER, SUBCONTRACTOR FOR SERVICE ON STAR ROUTE NO. 23118, LYNN HAVEN TO MILLVILLE JUNCTION (NO OFFICE), FLORIDA, FOR ADDITIONAL SERVICE PERFORMED, I WOULD RESPECTFULLY REQUEST THAT SUCH DECISION BE REVIEWED AND THAT A MORE SPECIFIC RULING BE MADE WITH REFERENCE TO AT LEAST TWO POINTS INVOLVED.

IT WILL BE NOTED THAT THE STATEMENT OF ACCOUNT, PURSUANT TO THE ORDER ISSUED DIRECTING PAYMENT, WAS DISALLOWED BY THE GENERAL ACCOUNTING OFFICE BECAUSE OF THE PROVISION IN THE CONTRACT READING:

AND TO CARRY THE MAIL, UPON DEMAND, BY ANY CONVEYANCE WHICH SAID CONTRACTOR REGULARLY RUNS OR IS CONCERNED IN RUNNING, ON THE ROUTE, BEYOND THE NUMBER OF TRIPS ABOVE SPECIFIED, IN THE SAME MANNER AND SUBJECT TO THE SAME REGULATIONS AS HEREIN PROVIDED TOUCHING REGULAR TRIPS.

THIS, WE UNDERSTAND, WAS ON THE GROUND THAT THE SUBCONTRACTOR, BY REASON OF THE ABOVE CLAUSE IN THE CONTRACT, WAS REQUIRED TO PERFORM THE ADDITIONAL SERVICE WITHOUT ADDITIONAL COMPENSATION. THIS IS NOT IN ACCORDANCE WITH OUR INTERPRETATION OF THIS PART OF THE CONTRACT. THE FACT IS THAT THIS CLAUSE IS EMBODIED IN THE REGULAR PRINTED FORM OF CONTRACT FOR A CONSIDERABLE NUMBER OF YEARS AND WE HAVE BEEN UNABLE TO ASCERTAIN WHY IT WAS EVER INCLUDED, OR WHEREIN IT IS OF ANY VALUE IN VIEW OF THE FURTHER CLAUSE IN THE CONTRACT AUTHORIZING THE POSTMASTER GENERAL TO INCREASE OR EXTEND THE SERVICE IN ACCORDANCE WITH THE LAW FOR PRO RATA ADDITIONAL COMPENSATION.

WITHOUT MAKING A SPECIFIC RULING ON THAT POINT YOUR DECISION READS:

WHILE THIS CONTRACT AUTHORIZED AN INCREASE IN THE SERVICE REQUIRED, SUCH INCREASE COULD ONLY HAVE BEEN LEGALLY ORDERED BY THE POSTMASTER GENERAL. THE LOCAL POSTMASTER WAS WITHOUT AUTHORITY TO ORDER THE ADDITIONAL SERVICE PERFORMED IN THIS CASE, AND AS THE SERVICE WAS PERFORMED IN ADVANCE OF THE POSTMASTER GENERAL'S ORDER OF SEPTEMBER 22, 1925, PAYMENT THEREFOR IS PROHIBITED BY SECTION 3960, REVISED STATUTES. SEE SECTION 1387, POSTAL LAWS AND REGULATIONS, SLAVEN V. UNITED STATES, 196 U.S. 229. THE FACT THAT THE ORDER OF SEPTEMBER 22, 1925, ATTEMPTED TO AUTHORIZE THE SERVICE ALREADY PERFORMED BETWEEN MAY 27 AND JUNE 5, 1925, DOES NOT ALTER THE FACT THAT THE SERVICE WAS "RENDERED BEFORE THE ISSUING OF SUCH ORDER," WITHIN THE PURVIEW OF SAID SECTION 3960, REVISED STATUTES.

AS POINTED OUT IN MY LETTER OF DECEMBER 8, CONTRACTS FOR SCREEN WAGON SERVICE DO PROVIDE FOR ADDITIONAL TRIPS WITHOUT ADDITIONAL COMPENSATION AND IT WAS THAT CLASS OF SERVICE INVOLVED IN THE SLAVEN CASE REFERRED TO. I WOULD ALSO CALL ATTENTION TO THE FACT THAT SECTION 3960, REVISED STATUTES READS,"NO COMPENSATION SHALL BE PAID FOR ANY ADDITIONAL REGULAR SERVICE RENDERED BEFORE THE ISSUING OF SUCH ORDER.'

PRIOR TO THE ENACTMENT OF THE LAW AS FOUND IN SECTION 1396, POSTAL LAWS AND REGULATIONS, 1924, WHICH WAS AMENDED BY THE ACT OF MAY 18, 1916, WE HAD NO AUTHORITY FOR EMPLOYING TEMPORARY OR EMERGENCY SERVICE WITHOUT ADVERTISEMENT, AND WE HAVE UNDERSTOOD SINCE THE PASSAGE OF THAT ACT THAT AN ORDER AUTHORIZING TEMPORARY SERVICE MIGHT BE RETROACTIVE ON THE GROUND THAT ONLY REGULAR SERVICE WAS REFERRED TO IN SECTION 3960, REVISED STATUTES. IN A MAJORITY OF THE CASES WHERE SERVICE IS AUTHORIZED UNDER THE PROVISIONS OF THAT SECTION WE DO NOT MAKE A FORMAL WRITTEN CONTRACT BUT MERELY AUTHORIZE THE POSTMASTER TO EMPLOY CERTAIN SERVICE AND SUBMIT A BILL THEREFOR. IN FACT, THAT WAS ONE OF THE THINGS WE HAD IN VIEW WHEN WE HAD THAT LAW AMENDED. IT WILL BE READILY UNDERSTOOD THAT EMERGENCIES ARISE WHEN IT IS UNQUESTIONABLY IN THE INTEREST OF THE POSTAL SERVICE TO AUTHORIZE THE EMPLOYMENT OF EMERGENCY OR TEMPORARY SERVICE WHEN IT IS NOT PRACTICABLE TO DO SO IN ADVANCE OF THE PERFORMANCE OF SUCH SERVICE.

WHILE IT HAS ALWAYS BEEN OUR PURPOSE TO AUTHORIZE SUCH SERVICE IN ADVANCE, AND POSTMASTERS AND FIELD OFFICERS ARE NOT ENCOURAGED TO EMPLOY ANY SERVICE WITHOUT PRIOR AUTHORITY THEREFOR, NOT INFREQUENTLY EMERGENCIES ARISE WHERE WE FEEL JUSTIFIED IN AUTHORIZING AND PAYING FOR SUCH SERVICE BY AN ORDER WHICH IS RETROACTIVE. I MIGHT CITE ONE OR TWO CASES WHICH ARE TYPICAL. DURING THE PERIOD PRECEDING CHRISTMAS HOLIDAYS GENERAL INSTRUCTIONS ARE ISSUED TO MAKE A SPECIAL EFFORT TO DELIVER ALL MAIL BEFORE CHRISTMAS, AND WE HAVE HAD QUITE A FEW CASES WHERE POSTMASTERS HAVE HAD CONTRACTORS PERFORM SERVICE ON SUNDAYS WHEN IT WAS NOT SPECIFICALLY CALLED FOR BY THE CONTRACT, OR TO MAKE ADDITIONAL TRIPS AT OTHER TIMES IN ORDER TO ADVANCE THE DELIVERY OF MAIL. IN ANOTHER CASE WE HAD A ROUTE WHERE THE CONTRACT CALLED FOR 12 TIMES A WEEK SERVICE, BUT BECAUSE OF WITHDRAWALS OF TRAINS THE FREQUENCY WAS REDUCED TO 6 TIMES A WEEK WITH PRO RATA REDUCTION FROM THE CONTRACTOR'S PAY. SUBSEQUENTLY RAILWAY MAIL SERVICE OFFICIALS ARRANGED FOR HANDLING THE MAILS BY BUSSES FOR A PERIOD DURING THE SUMMER SEASON INSTEAD OF BY TRAINS WHICH HAD BEEN WITHDRAWN AND RENDERED RESTORATION OF 12 TIMES A WEEK SERVICE ON THE STAR ROUTE ESSENTIAL, BUT THROUGH AN OVERSIGHT THE DEPARTMENT WAS NOT ADVISED THEREOF UNTIL THE CONTRACTOR HAD BEEN PERFORMING THE ADDITIONAL SERVICE FOR A MONTH OR TWO. IN THESE CASES, WHERE THERE IS ABSOLUTELY NO QUESTION ON OUR PART AS TO THE JUSTIFICATION FOR THE SERVICE, WE FEEL IT SHOULD BE AUTHORIZED AND PAID FOR HAVING BEEN EMPLOYED IN GOOD FAITH AND PERFORMED IN GOOD FAITH AS BEING IN THE BEST INTEREST OF THE POSTAL SERVICE, AND IT WAS PARTIALLY FOR THIS REASON THAT WE HAD THE LAW AMENDED AS STATED ABOVE.

I WOULD RESPECTFULLY ASK, THEREFORE, THAT YOU RULE SPECIFICALLY ON THE FOLLOWING POINTS:

1. IS A CONTRACTOR, BECAUSE OF THE CLAUSE FIRST QUOTED IN THIS LETTER, LEGALLY BOUND TO PERFORM ADDITIONAL TRIPS WITHOUT ADDITIONAL COMPENSATION?

2. IF NOT, HAS THE POSTMASTER GENERAL AUTHORITY TO MAKE A TEMPORARY CONTRACT WITH THE ORIGINAL CONTRACTOR OR SOME OTHER PERSON TO PERFORM TEMPORARY ADDITIONAL SERVICE?

3. MAY AN ORDER AUTHORIZING A TEMPORARY CONTRACT PURSUANT TO THE PROVISIONS OF SECTION 1396, POSTAL LAWS AND REGULATIONS, 1924, BE RETROACTIVE?

THE DECISION OF JANUARY 13, 1926, WAS RENDERED UPON THE CONTRACT COVERING STAR ROUTE NO. 23118, LYNN HAVEN TO MILLVILLE JUNCTION, FLA., WHICH CONTRACT, IN ADDITION TO THE PROVISION QUOTED BY YOU, REQUIRING THE CONTRACTOR UPON DEMAND TO PERFORM ADDITIONAL TRIPS "IN THE SAME MANNER AND SUBJECT TO THE SAME REGULATIONS AS ARE HEREIN PROVIDED TOUCHING REGULAR TRIPS," ALSO CONTAINED A PROVISION FOR THE ALLOWANCE OF A "PRO RATA INCREASE OF COMPENSATION FOR ANY ADDITIONAL SERVICE THEREBY REQUIRED.' THE DECISION DID NOT, AS SUGGESTED BY YOU, DENY THE ADDITIONAL COMPENSATION TO THE CONTRACTOR BECAUSE ANY PROVISION OF THE CONTRACT REQUIRED IT TO BE RENDERED WITHOUT COMPENSATION, BUT FOR THE REASON THAT THE ADDITIONAL SERVICE, WHICH YOUR ORIGINAL SUBMISSION STATED WAS AUTHORIZED "AS REGULAR SERVICE," AND WHICH THE CONTRACT APPARENTLY REQUIRED TO BE TREATED AS "REGULAR TRIPS," WAS NOT AUTHORIZED IN ADVANCE BY THE POSTMASTER GENERAL AS REQUIRED BY SECTION 3960, REVISED STATUTES.

UPON THE ASSUMPTION THAT YOUR QUESTIONS 1 AND 2 REFER TO A SITUATION COVERED BY A CONTRACT IN ALL RESPECTS SIMILAR TO THE ONE CONSTRUED IN THE DECISION--- I.E., REQUIRING THE PERFORMANCE OF ADDITIONAL SERVICE UPON DEMAND, TO BE SUBJECT TO THE SAME REQUIREMENTS AND REGULATIONS AS REGULAR SERVICE, AND TO BE PAID FOR BY A "PRO RATA INCREASE OF COMPENSATION," YOU ARE ADVISED THAT THE CONTRACTOR COULD NOT BE REQUIRED TO PERFORM ADDITIONAL TRIPS WITHOUT ADDITIONAL COMPENSATION. THE ADDITIONAL SERVICE MUST, HOWEVER, TO PERMIT PAYMENT OF EXTRA COMPENSATION THEREFOR, BE AUTHORIZED IN ADVANCE BY THE POSTMASTER GENERAL, AND THERE WOULD BE NO AUTHORITY TO CONTRACT WITH SOME OTHER PERSON TO PERFORM TEMPORARY ADDITIONAL SERVICE UNLESS THE CONTRACTOR FOR THAT ROUTE FAILED TO PERFORM SUCH SERVICE UPON DEMAND.

WITH REGARD TO THE THIRD QUESTION IN YOUR SUBMISSION, THE PROVISIONS OF SECTION 1396, POSTAL LAWS AND REGULATIONS, 1924, WHICH ARE TAKEN VERBATIM FROM THE ACT OF MAY 18, 1916, 39 STAT. 161, PROVIDE:

SEC. 8. THAT WHENEVER AN ACCEPTED BIDDER SHALL FAIL TO ENTER INTO CONTRACT, OR A CONTRACTOR ON ANY MAIL ROUTE SHALL FAIL OR REFUSE TO PERFORM THE SERVICE ON SAID ROUTE ACCORDING TO HIS CONTRACT, OR WHEN A NEW ROUTE SHALL BE ESTABLISHED OR NEW SERVICE REQUIRED, OR WHEN, FROM ANY OTHER CAUSE, THERE SHALL NOT BE A CONTRACTOR LEGALLY BOUND OR REQUIRED TO PERFORM SUCH SERVICE, THE POSTMASTER GENERAL MAY MAKE A TEMPORARY CONTRACT FOR CARRYING THE MAIL ON SUCH ROUTE, WITHOUT ADVERTISEMENT, FOR SUCH PERIOD AS MAY BE NECESSARY, NOT IN ANY CASE EXCEEDING ONE YEAR, UNTIL THE SERVICE SHALL HAVE COMMENCED UNDER A CONTRACT MADE ACCORDING TO LAW; PROVIDED, THAT THE COST OF TEMPORARY SERVICE RENDERED NECESSARY BY REASON OF THE FAILURE OF ANY ACCEPTED BIDDER TO ENTER INTO CONTRACT OR A CONTRACTOR TO PERFORM SERVICE SHALL BE CHARGED TO SUCH BIDDER OR CONTRACTOR.

WHILE THIS SECTION PERMITS THE CONTRACTING FOR TEMPORARY SERVICE WITHOUT ADVERTISING, IT DOES NOT AUTHORIZE RETROACTIVE CONTRACTS FOR SERVICE ALREADY RENDERED. WHEN SERVICE HAS BEEN RENDERED WITHOUT A CONTRACT THE RIGHTS OF THE CLAIMANT AND THE LIABILITY OF THE UNITED STATES ARE FIXED BY THE CONDITIONS UNDER WHICH THE SERVICE WAS RENDERED; IF AUTHORIZED IN ADVANCE BY ORDER OF THE POSTMASTER GENERAL IN ADVANCE BY THE POSTMASTER GENERAL AND IT IS IN THE NATURE OF REGULAR SERVICE NO PAYMENT THEREFOR MAY BE MADE IN VIEW OF THE PROHIBITION IN SECTION 3960, REVISED STATUTES. IT IS NOT AUTHORIZED IN ADVANCE BY ORDER OF THE POSTMASTER GENERAL AND IS NOT REGULAR SERVICE, FOR EXAMPLE, IF IT IS STAR ROUTE SERVICE DIVERTED FROM ANOTHER ROUTE DURING AN EMERGENCY, PAYMENT IS AUTHORIZED OF THE FAIR AND REASONABLE VALUE OF THE SERVICES SO RENDERED. CLAIMS ON ACCOUNT OF SUCH SERVICE ORDINARILY SHOULD BE SUBMITTED TO THIS OFFICE FOR DIRECT SETTLEMENT, WITH A COMPLETE STATEMENT OF THE FACTS AND CIRCUMSTANCES PERTAINING THERETO AND THE DEPARTMENT'S RECOMMENDATION THEREON.

SERVICES RENDERED WITHOUT ANY DEFINITE AGREEMENT FOR PAYMENT MAY NOT THEREAFTER BE MADE THE SUBJECT OF CONTRACTS OPERATING RETROACTIVELY.