A-61225, JUNE 17, 1935, 14 COMP. GEN. 897

A-61225, JUNE 17, 1935, 14 COMP. GEN. 897

CONTRACTS - STENOGRAPHIC REPORTING SERVICE - LIABILITY FOR DEFAULT WHERE A CONTRACT TO FURNISH STENOGRAPHIC REPORTING SERVICE ANYWHERE IN THE UNITED STATES TO AN AGENCY OF THE GOVERNMENT PROVIDED THAT THE CONTRACTOR WOULD BE GIVEN AT LEAST 3 DAYS' NOTICE OF THE TIME AND PLACE OF CONTEMPLATED HEARINGS WHENEVER POSSIBLE, NO ADDITIONAL ALLOWANCE BEING MADE FOR INTERVENING SUNDAYS AND HOLIDAYS, AND THAT IN EMERGENCIES ALL POSSIBLE NOTICE WOULD BE GIVEN, AND FURTHER PROVIDED THAT THE CONTRACTOR WOULD BE LIABLE FOR ALL LOSS, DAMAGE OR EXPENSE OCCASIONED BY ANY DEFAULT IN THE PERFORMANCE OF THE CONTRACT, THE CONTRACTOR IS LIABLE FOR ALL EXCESS COST TO THE GOVERNMENT OCCASIONED BY THE FAILURE TO FURNISH STENOGRAPHIC REPORTING SERVICE FOR HEARINGS, THE REQUIRED NOTICE OF WHICH HAD BEEN GIVEN BY THE GOVERNMENT, EVEN THOUGH A SUNDAY OR A HOLIDAY INTERVENED.

DECISION BY COMPTROLLER GENERAL MCCARL, JUNE 17, 1935:

THERE ARE BEFORE THIS OFFICE FOR CONSIDERATION VOUCHERS NOS. 1295954 AND 1295958 IN FAVOR OF THE SILLS REPORTING SERVICE IN THE AMOUNTS OF $134.19 AND $261.63, RESPECTIVELY, FROM WHICH DEDUCTIONS OF $86.29 AND $261.63 WERE CERTIFIED FOR DEPOSIT TO THE CREDIT OF THE TREASURER OF THE UNITED STATES BY REASON OF THE FAILURE OF THE SILLS REPORTING SERVICE TO REPORT A HEARING HELD IN CLEVELAND, OHIO, JANUARY 2, 1935, UNDER CONTRACT LTB-2, OCTOBER 29, 1934, WITH THE TEXTILE LABOR RELATIONS BOARD. THE SAID HEARING WAS REPORTED BY HERMAN I. TOLL AND ASSOCIATES AT A COST OF $567.76, RESULTING IN AN EXCESS COST TO THE GOVERNMENT OF $347.92, THE AMOUNT HERETOFORE DEDUCTED FROM THE VOUCHERS INVOLVED.

THERE IS FOR CONSIDERATION, ALSO, BUREAU VOUCHER NO. 484 IN THE AMOUNT OF $428.52 IN FAVOR OF CLOYD D. RAUCH FOR STENOGRAPHIC SERVICES RENDERED THE TEXTILE LABOR RELATIONS BOARD IN REPORTING A HEARING IN PORTLAND, OREG., JANUARY 29, 1935.

THE RECORD IS TO THE EFFECT THAT ON DECEMBER 31, 1934 (SATURDAY), THE TEXTILE LABOR RELATIONS BOARD IN WASHINGTON WAS NOTIFIED BY THE CLEVELAND REGIONAL BOARD OF CLEVELAND, OHIO, THAT IT WOULD HOLD A HEARING IN THE INDUSTRIAL RAYON CASE IN CLEVELAND ON JANUARY 2, 1935. THIS INFORMATION WAS TELEPHONED TO MRS. SIBYL A. SILLS, OWNER OF THE SILLS REPORTING SERVICE, IN NEW YORK AT 12:30 P.M. THE SAME DAY. MRS. SILLS, ACCORDING TO THE ADMINISTRATIVE REPORT, FOUND IT IMPOSSIBLE TO ARRANGE FOR A REPORTER FOR THE HEARING, AND ARRANGEMENT WAS MADE FOR REPORTING SERVICE WITH HERMAN I. TOLL AND ASSOCIATES, AS ABOVE.

AGAIN ON SATURDAY, JANUARY 26, 1935, THE TEXTILE LABOR RELATIONS BOARD IN WASHINGTON WAS NOTIFIED THAT A HEARING WOULD BE HELD IN THE OREGON WORSTED CO. CASE AT PORTLAND, OREG., TUESDAY, JANUARY 29. NOTIFICATION WAS GIVEN MRS. SILLS IN NEW YORK AT 3 P.M. THE SAME DAY. AGAIN SHE FOUND IT IMPOSSIBLE TO ARRANGE TO COVER THE HEARING AND CLOYD D. RAUCH WAS EMPLOYED TO DO THE REPORTING, RESULTING IN AN EXCESS COST TO THE GOVERNMENT.

THE CONTRACT OF MRS. SILLS, DOING BUSINESS AS THE SILLS REPORTING SERVICE, CONSISTED OF BID SUBMITTED OCTOBER 16, 1934, OPENED OCTOBER 24, 1934, AND CONTRACT EXECUTED ON OR BEFORE OCTOBER 29, 1934, TO FURNISH STENOGRAPHIC REPORTING SERVICES FOR THE TEXTILE LABOR RELATIONS BOARD FROM OCTOBER 29, 1934, TO JUNE 16, 1935, INCLUSIVE, AT THE PRICES THEREIN STATED. THE PERTINENT PROVISIONS OF THE BID AND CONTRACT ARE AS FOLLOWS:

THE UNDERSIGNED SILLS REPORTING SERVICE, 111 8TH AVENUE, NEW YORK CITY, IN RESPONSE TO AND ACCORDING TO THE TERMS OF THE INVITATION TO BID TO WHICH THIS PROPOSAL IS ATTACHED, HEREBY PROPOSES TO ENTER INTO A CONTRACT WITH THE TEXTILE LABOR RELATIONS BOARD, IN THE FORM ANNEXED HERETO AND BY REFERENCE MADE A PART HEREOF, FOR THE REPORTING OF HEARINGS, CONFERENCES, OR OTHER MEETINGS HELD AT WASHINGTON, D.C., OR ELSEWHERE IN THE UNITED STATES, BEFORE THE TEXTILE LABOR RELATIONS BOARD, OR ANY PERSON DESIGNATED BY THE TEXTILE LABOR RELATIONS BOARD, OR PAID OUT OF FUNDS ADMINISTERED BY THE TEXTILE LABOR RELATIONS BOARD, AND THE FURNISHING OF TRANSCRIPTS HEREOF; AND TO FURNISH THE LABOR AND MATERIALS TO PERFORM THE WORK MENTIONED IN SAID CONTRACT, UNDER THE CONDITIONS AND IN THE MANNER THEREIN PROVIDED AND WITHOUT ANY FURTHER CHARGE, AT THE FOLLOWING UNIT PRICES:

NOTICE OF ACCEPTANCE BY THE TEXTILE LABOR RELATIONS BOARD OF THIS PROPOSAL, ADDRESSED TO THE UNDERSIGNED, SHALL FORTHWITH OPERATE AS THE COMPLETE MAKING OF A CONTRACT ACCORDING TO THE FORM ATTACHED, WITH BLANKS THEREIN CONTAINED FILLED IN ACCORDING TO THIS PROPOSAL.

THE REPORTER SHALL STENOGRAPHICALLY REPORT, IN ACCORDANCE WITH THE PROVISIONS HEREIN SET FORTH, ALL HEARINGS, CONFERENCES, OR OTHER MEETINGS BEFORE THE BOARD, OR ANY PERSON DESIGNATED BY THE BOARD, OR PAID OUT OF FUNDS ADMINISTERED BY THE BOARD TO TAKE TESTIMONY, CONDUCT PROCEEDINGS, HOLD MEETINGS, ETC., WHICH THE BOARD REQUIRES TO BE REPORTED.

THE BOARD AGREES THAT, WHENEVER POSSIBLE, IT WILL CAUSE AT LEAST THREE (3) DAYS' NOTICE TO BE GIVEN OF THE TIME AND PLACE OF CONTEMPLATED HEARINGS COVERED BY THIS CONTRACT; THAT IN EMERGENCIES ALL POSSIBLE NOTICE WILL BE GIVEN.

THE REPORTER SHALL BE LIABLE FOR ALL LOSS, DAMAGE, OR EXPENSE TO THE BOARD OCCASIONED BY ANY DEFAULT IN THE PERFORMANCE OF THIS AGREEMENT, AND THE BOARD MAY DEDUCT THE AMOUNT OF ANY SUCH LOSS, DAMAGE, OR EXPENSE FROM ANY AMOUNT DUE TO THE REPORTER, AND RECOVER ANY ADDITIONAL AMOUNT NECESSARY TO REIMBURSE FOR SUCH LOSS, DAMAGE, OR EXPENSE FROM SUBSEQUENT TRANSCRIPTS ORDERED. THE REPORTER SHALL FURNISH A GOOD AND SUFFICIENT BOND ACCEPTABLE TO THE BOARD FOR THE FAITHFUL PERFORMANCE OF THIS AGREEMENT FOR THE PAYMENT OF ALL LOSS, DAMAGE, OR EXPENSE OCCASIONED BY ANY DEFAULT OF THE REPORTER.

THE "INVITATION TO BID" AND "PROPOSAL OR STENOGRAPHIC REPORTING AND RELATED SERVICE TO BE RENDERED THE BOARD," HERETO ATTACHED, ARE HEREBY MADE PART OF THIS AGREEMENT.

THE CONTRACTOR CONTENDS THAT OWING TO THE SHORT NOTICE GIVEN HER IN THE TWO INSTANCES, 2 DAYS WITH THE INTERVENTION OF A HOLIDAY IN THE ONE INSTANCE, AND 3 DAYS WITH THE INTERVENTION OF A SUNDAY IN THE OTHER, SHE IS NOT LIABLE TO THE GOVERNMENT FOR THE EXCESS COSTS OCCASIONED BY HER FAILURE TO ARRANGE FOR REPORTING SERVICE FOR THE HEARINGS INVOLVED.

SUCH A CONCLUSION IS PRECLUDED BY THE PLAIN PROVISIONS OF THE CONTRACT. SHE HAD BOUND HERSELF BY HER BID AND CONTRACT TO REPORT HEARINGS, CONFERENCES, OR OTHER MEETINGS HELD AT WASHINGTON, C., "OR ELSEWHERE IN THE UNITED STATES" BEFORE THE TEXTILE LABOR RELATIONS BOARD OR ANY OTHER PERSON DESIGNATED BY SAID BOARD OR PAID OUT OF FUNDS ADMINISTERED BY SAID BOARD. NO EXCEPTION WAS MADE OF ANY HEARING, CONFERENCE, OR MEETING, NO MATTER WHEN OR WHERE HELD. SHE HAD UNDERTAKEN, ALSO, TO BE LIABLE FOR ALL LOSS OR DAMAGE OR EXPENSE TO THE BOARD OCCASIONED BY ANY DEFAULT IN THE PERFORMANCE OF THE CONTRACT AND HAD AGREED TO THE DEDUCTION OF ANY SUCH LOSS, DAMAGE, OR EXPENSE FROM ANY AMOUNT DUE HER AND THE RECOVERY OF ANY ADDITIONAL AMOUNT NECESSARY TO REIMBURSE SUCH LOSS, ETC., FROM SUBSEQUENT AMOUNTS TO BECOME DUE. WHILE SUCH RIGHT WOULD EXIST, OF COURSE, INDEPENDENT OF THE PROVISION THEREFOR, ITS INCLUSION IN THE CONTRACT SERVED TO ELIMINATE ANY POSSIBILITY OF MISUNDERSTANDING. IT MAY BE NOTED, ALSO, THAT IN THIS INSTANCE THE CONTRACT FORM WAS ATTACHED TO AND BY REFERENCE MADE A PART OF THE INVITATION FOR PROPOSALS. IF THE CONTRACTOR HAD BEEN UNREADY OR UNWILLING TO SUBSCRIBE TO ANY OF ITS TERMS SHE HAD AMPLE OPPORTUNITY EITHER TO QUESTION ITS PROVISIONS OR REFRAIN FROM BIDDING FOR THE WORK.

THE FUNCTIONS OF THE TEXTILE LABOR RELATIONS BOARD WERE BROAD IN THEIR SCOPE AND ITS ACTIVITIES WERE NATIONAL IN CHARACTER, AND EXAMINATION OF EXECUTIVE ORDER NO. 6858, SEPTEMBER 26, 1934, BY WHICH IT WAS CREATED AND ITS FUNCTIONS OUTLINED, IS SUFFICIENT TO DISCLOSE ITS COMPREHENSIVE CHARACTER. THAT IT WAS RECOGNIZED HEARINGS, MEETINGS, AND CONFERENCES WOULD BE HELD THROUGHOUT THE COUNTRY WAS INDICATED BY THE BROAD PROVISIONS OF THE CONTRACT RELATIVE THERETO. IT IS MANIFEST, ALSO, FROM THE PROVISION OF THE CONTRACT THAT THE BOARD WOULD GIVE AT LEAST 3 DAYS' NOTICE WHENEVER POSSIBLE, THAT IT WAS UNDERSTOOD THAT MANY HEARINGS, ETC., WOULD BE UPON SHORT NOTICE. THAT SUCH HEARINGS WOULD SOMETIMES PARTAKE OF THE NATURE OF EMERGENCIES NOT PERMITTING OF THE 3 DAYS' NOTICE IS EQUALLY CLEAR FROM THE STIPULATION THAT IN EMERGENCIES ALL POSSIBLE NOTICE WOULD BE GIVEN.

THE INTENT OF THE CONTRACT PROVISIONS, SUPRA, IS TOO PLAIN TO REQUIRE CONSTRUCTION OR ADMIT OF MISINTERPRETATION. WHILE THE BOARD WOULD GIVE THE CONTRACTOR 3 DAYS' NOTICE WHEN POSSIBLE IT WAS UNDERSTOOD AND PROVIDED THAT WHEN THAT WAS NOT POSSIBLE LESS NOTICE WAS SUFFICIENT AND IN CASES OF EMERGENCIES ANY NOTICE, HOWEVER SHORT, IF IT WAS ALL THAT WAS POSSIBLE, WAS ALL THAT WAS REQUIRED.

IN THE CASE OF THE HEARING IN CLEVELAND ON JANUARY 2, 1935, THE EVIDENCE IS THAT THE BOARD WAS NOT INFORMED UNTIL DECEMBER 31, 1934. THREE DAYS' NOTICE WAS NOT POSSIBLE, BUT MRS. SILLS WAS NOTIFIED BY TELEPHONE THE SAME DAY. ALL POSSIBLE NOTICE, THEREFORE, WAS GIVEN. THE CONTRACT MADE NO EXCEPTIONS OF SUNDAYS AND HOLIDAYS AND THE FACT THAT A HOLIDAY INTERVENED CANNOT BE CONSIDERED. THE EXPLANATION GIVEN BY MRS. SILLS OF HER FAILURE TO CARRY OUT HER CONTRACT WAS THAT HER REGULAR REPORTER IN CLEVELAND HAD MADE ARRANGEMENTS TO LEAVE FOR THE NEW YEAR'S WEEK-END. HOWEVER, THE FACT THAT THE SERVICES OF STENOGRAPHIC REPORTERS WERE OBTAINED FOR THE HEARING DEMONSTRATES THAT SUCH REPORTERS WERE AVAILABLE, AND IT WAS INCUMBENT UPON THE CONTRACTOR UNDER THE CIRCUMSTANCES TO MAKE ARRANGEMENTS AS BEST SHE COULD. WHEN SHE FAILED TO DO SO SHE DEFAULTED ON HER CONTRACT AND BECAME LIABLE FOR ANY EXCESS COST TO THE GOVERNMENT.

IN THE CASE OF THE HEARING IN PORTLAND, OREG., NOTICE WAS RECEIVED BY THE BOARD ON JANUARY 26, OF THE HEARING ON JANUARY 29, 1935, AND WAS TRANSMITTED TO MRS. SILLS BY TELEPHONE THE SAME DAY. THREE DAYS' ACTUAL NOTICE WAS GIVEN IN THIS INSTANCE AND AGAIN THE FACT THAT SUNDAY INTERVENED CANNOT BE CONSIDERED. NO EXPLANATION OF THE DEFAULT IN THIS INSTANCE HAS BEEN GIVEN EXCEPT A SUGGESTION CONTAINED IN A LETTER FROM THE TEXTILE LABOR RELATIONS BOARD THAT "MRS. SILLS HAD HAD NO REASON TO ANTICIPATE THE NEED FOR REPORTING SERVICES ON THE WEST COAST -- THIS BEING THE ONLY CASE WHICH THE BOARD HAS HAD IN THAT SECTION TO DATE.' ASIDE FROM THE FACT THAT MRS. SILLS WAS BOUND UNDER HER CONTRACT TO FURNISH STENOGRAPHIC SERVICES ANYWHERE IN THE UNITED STATES, THE VERY NATURE OF THE BOARD IS ADEQUATE ANSWER TO THE ARGUMENT. THE BOARD WAS CHARGED WITH HEAVY RESPONSIBILITIES AND AUTHORIZED TO INTERVENE IN ANY MANNER OF DISAGREEMENT BETWEEN INDIVIDUALS OR GROUPS IN THE SEVERAL TEXTILE INDUSTRIES, AND THE FACT THAT IT WAS NOT CALLED UPON FOR A HEARING, MEETING, OR CONFERENCE IN A PARTICULAR COMMUNITY OR PART OF THE COUNTRY ON ONE DAY AFFORDED NO ASSURANCE THAT IT WOULD NOT BE SO CALLED UPON THE NEXT.

IN THIS INSTANCE, ALSO, THE FACT THAT THE STENOGRAPHIC REPORTER WAS OBTAINABLE IS SHOWN BY THE FACT THAT SUCH A REPORTER WAS OBTAINED AND IF MRS. SILLS HAD NO REPRESENTATIVE IN PORTLAND UPON WHOM SHE COULD CALL IT WAS HER RESPONSIBILITY TO MAKE ARRANGEMENTS FOR ONE.

IT IS UNFORTUNATE, OF COURSE, THAT THE CONTRACTOR HAS BEEN SUBJECTED TO LOSS IN THE TWO INSTANCES BUT THAT FACT CANNOT WEIGH AGAINST THE CLEAR RIGHTS OF THE GOVERNMENT UNDER THE CONTRACT. A LAWFUL CONTRACT MUST BE PERFORMED ACCORDING TO ITS TERMS OR THE DEFAULTING PARTY MUST SUFFER THE RESULTS OF A BREACH. WHEN SUCH BREACH HAS OCCURRED UNDER A CONTRACT WITH THE GOVERNMENT NO OFFICIAL OF THE GOVERNMENT IS AUTHORIZED TO GIVE AWAY OR REMIT A CLAIM DUE THE UNITED STATES. PACIFIC HARDWARE COMPANY V. UNITED STATES, 49 CT.CLS. 327. AND WHERE A PERSON IS BOTH DEBTOR AND CREDITOR TO THE GOVERNMENT IN ANY FORM, THE ACCOUNTING OFFICERS ARE REQUIRED BY LAW TO CONSIDER BOTH THE DEBITS AND CREDITS AND TO CERTIFY ONLY THE BALANCE. TAGGART V. UNITED STATES, 17 CT.CLS. 322.

UNDER THE FACTS AND THE PLAIN PROVISIONS OF THE CONTRACT THERE APPEARS NO LEGAL BASIS FOR RELIEVING THE CONTRACTOR OF THE CONSEQUENCES OF HER DEFAULT UNDER HER CONTRACT IN THE TWO INSTANCES INVOLVED. THE DEDUCTIONS HERETOFORE MADE FROM THE TWO VOUCHERS IN FAVOR OF MRS. SILLS TO COVER THE INDEBTEDNESS OF $347.92 MUST BE AND ARE SUSTAINED. BUREAU VOUCHER NO. 484 IN THE AMOUNT OF $428.52 IN FAVOR OF CLOYD D. RAUCH WILL BE CERTIFIED FOR PAYMENT IF OTHERWISE FREE FROM OBJECTION AND ANY EXCESS COST OF THE SERVICES RENDERED OVER THE COST TO THE GOVERNMENT UNDER THE CONTRACT WITH MRS. SILLS WILL BE DEDUCTED FROM AMOUNTS OTHERWISE DUE OR HEREAFTER BECOMING DUE TO HER UNDER SAID CONTRACT.