A-80535, SEPTEMBER 24, 1936, 16 COMP. GEN. 310

A-80535, SEPTEMBER 24, 1936, 16 COMP. GEN. 310

CONTRACTS - INTERPRETATION - MARITIME "WORKING DAYS" WHERE A CONTRACT FOR THE USE OF A TOW BOAT PROVIDES A SPECIFIED RATE PER DAY, THE WORK DAY TO BE A MINIMUM OF 8 AND A MAXIMUM OF 16 HOURS, AT THE OPTION OF THE GOVERNMENT, THERE IS NO AUTHORITY FOR PAYMENT OF THE DAILY RATE FOR EACH 8 HOURS OF WORK, NOTWITHSTANDING THE INTERPRETATION AS TO THE WORK DAY PROVISIONS OF THE SPECIFICATIONS GIVEN THE CONTRACTOR BY THE PROCUREMENT OFFICER PRIOR TO THE OPENING OF BIDS, BUT NOT MADE A PART OF THE CONTRACT, PARTICULARLY AS THE TERM "WORKING DAY" IN MARITIME AFFAIRS, UNLESS SPECIFICALLY QUALIFIED, MEANS A CALENDAR DAY OF 24 HOURS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, SEPTEMBER 24, 1936:

THERE WAS RECEIVED FROM THE STATE PROCUREMENT OFFICER, SEATTLE, WASH., A LETTER OF AUGUST 26, 1936, WITH ENCLOSURES, AS FOLLOWS:

SUBJECT: CONTRACT ER-TPS-1399, CORRECTION TO AND INTERPRETATION OF.

ENCLOSURES:

(A) CERTIFIED COPY OF TELETYPE FROM THE STATE PROCUREMENT OFFICER TO CAPT. S. L. DAMON.

(B) CERTIFIED COPY OF LETTER FROM CAPT. S. L. DAMON, CORPS OF ENGINEERS, U.S. ARMY, TO THE DIESEL TOWING COMPANY, OF PORTLAND, OREGON.

THE ACCEPTANCE OF THIS CONTRACT SHOULD BE MADE TO SHOW ACCEPTANCE OF ITEMS 1, 2, AND 3, NOT ACCEPTANCE OF ITEM 1 ONLY, AS AT PRESENT.

THIS CONTRACT WAS FOR USE OF TOW BOAT IN ROTATION ON OFFICIAL PROJECTS 976, 977, AND 980. THESE OFFICIAL PROJECTS HAVE NOW ALL BEEN COMBINED UNDER OFFICIAL PROJECT 976.

AS PARAGRAPH 4 OF THE TERMS AND CONDITIONS OF THIS CONTRACT WILL DOUBTLESS BE SUBJECT TO QUESTION BY THE GENERAL ACCOUNTING OFFICE, ENCLOSURES (A) AND (B) HAVE BEEN FORWARDED FOR CONSIDERATION. PARAGRAPH 4 OF THE CONTRACT STATES THAT A WORK DAY SHALL BE A MINIMUM OF EIGHT HOURS AND A MAXIMUM OF SIXTEEN HOURS, AT THE OPTION OF THE GOVERNMENT. THE BID IS FOR $28.00 A DAY. THE ENCLOSURES SHOW THAT PRIOR TO THE OPENING, THE SUCCESSFUL BIDDER, THE DIESEL TOWING COMPANY, ASKED THIS OFFICE FOR AN INTERPRETATION OF A WORK DAY. AS INFORMATION BEYOND PARAGRAPH 4 WAS NOT AVAILABLE, ENCLOSURE (A) WAS SENT CAPTAIN DAMON, WHO IN TURN ADVISED THE CONTRACTOR, TWELVE DAYS PRIOR TO OPENING OF BID, AS FOLLOWS:

"THIS CLAUSE MEANS THAT IF THE BOAT IS TOWING A BARGE, IT IS NOT TO STOP ENROUTE AT THE EXPIRATION OF EIGHT HOURS OF DUTY, BUT IS TO COMPLETE ITS JOURNEY. THE HOURS MAY BE BROKEN, SOME DAYS THE LAY-OFF TIME MAY BE TWENTY HOURS OUT OF TWENTY-FOUR HOURS, ON OTHER DAYS, THE LAY-OFF TIME MAY BE FOURTEEN HOURS OUT OF A TOTAL OF TWENTY-FOUR HOURS.

"IN OTHER WORDS, IT IS A GIVE AND TAKE PROPOSITION TO GET THE WORK DONE ON AN AVERAGE EIGHT HOURS PER DAY BASIS. THIS IS CONSIDERED NECESSARY ACCOUNT OF THE WATER STAGES IN THE COWLITZ AND LEWIS RIVERS.'

IT IS THEREFORE REQUESTED THAT GENERAL ACCOUNTING OFFICE INSTRUCT THE STATE PROCUREMENT OFFICER AS TO WHETHER OR NOT THE CONTRACTOR IS ENTITLED TO A DAY'S PAY FOR EACH EIGHT HOURS OF WORK.

THE EXPLANATION OF PARAGRAPH 4 OF THE SPECIFICATIONS GIVEN CONTRACTOR BY THE PROCUREMENT OFFICER "12 DAYS PRIOR TO OPENING OF BIDS" WAS NOT A PART OF THE CONTRACT, HAD NO BINDING EFFECT UPON THE GOVERNMENT, AND WOULD APPEAR SO INCONCLUSIVE AS TO AFFORD LITTLE, IF ANY, ASSISTANCE IN THE CONSTRUCTION OF THE QUESTIONED PROVISION IN ANY EVENT. HOWEVER, IT DOES SERVE TO INDICATE THE PROBABLE RESULT OF THE OPERATION OF THE RULE HEREINAFTER STATED.

IN SHERWOOD V. AMERICAN SUGAR REFINING CO., 8 FED./2D) 586-588, THE COURT SAID:

THE TERM "WORKING DAYS" MEANS, IN MARITIME AFFAIRS, RUNNING OR CALENDAR DAYS ON WHICH THE LAW PERMITS WORK TO BE DONE, BUT EXCLUDES SUNDAYS AND LEGAL HOLIDAYS, BUT NOT STORMY DAYS.

THE COURT HELD IN THAT CASE THAT THE TERM "WORKING DAY" DID NOT HAVE REFERENCE TO WORKING A DAY OF 8 HOURS, BUT MEANT A CALENDAR DAY OF 24 HOURS, AND THAT A CONTRACT FOR THE HIRING OF A DERRICK BOAT FOR $35 PER DAY WAS NOT BREACHED, AND THE OWNER COULD NOT RECOVER AS FOR EXTRA TIME, WHEN SUCH BOAT WAS WORKED IN EXCESS OF 8 HOURS, EVEN AS MUCH AS 24 HOURS PER DAY.

THE EFFECT OF PARAGRAPH 4 OF THE SPECIFICATIONS IN THE PRESENT INSTANCE WAS TO LIMIT THE WORKING DAY TO A MAXIMUM OF 16, INSTEAD OF 24 HOURS, AND TO A MINIMUM OF 8 HOURS. WHILE THE GOVERNMENT COULD NOT REQUIRE OPERATION OF THE TOWBOAT FOR 24 HOURS PER DAY, AS IT OTHERWISE MIGHT HAVE DONE HAD IT NOT BEEN FOR SUCH LIMITATION, IT COULD REQUIRE ITS OPERATION FOR 16 HOURS PER DAY UNDER THE CONTRACT DURING EACH WORKING DAY OF THE RENTAL PERIOD WITHOUT ADDITION TO THE AGGREGATE CONTRACT PRICE QUOTED BY THE CONTRACTOR. IT FOLLOWS, ANSWERING THE SPECIFIC QUESTION PRESENTED, THAT THE CONTRACTOR WOULD NOT BE ENTITLED TO A DAY'S PAY FOR EACH 8 HOURS OF WORK, BUT WOULD BE ENTITLED TO A DAY'S PAY FOR EACH WORKING DAY THE TOWBOAT WAS OPERATED UNDER THE CONTRACT AS MUCH AS 8 HOURS, WHETHER IT WAS FOR ONLY 8 HOURS OR FOR AS MUCH AS 16 HOURS.

AS SUGGESTED ABOVE, THE LETTER OF THE PROCUREMENT OFFICER TO THE CONTRACTOR INDICATES THAT OWING TO THE WATER STAGES IN THE COWLITZ AND LEWIS RIVERS, THERE WOULD BE DAYS UPON WHICH THE TOWBOAT MIGHT BE OPERATED SUBSTANTIALLY IN EXCESS OF 8 HOURS, WHEREAS ON OTHER DAYS THE OPERATING TIME MIGHT BE AS LITTLE AS 4 HOURS OUT OF THE 24, AND THAT OVER THE WHOLE PERIOD COVERED BY THE CONTRACT THE TOTAL NUMBER OF HOURS WORKED WOULD RESULT IN AN AVERAGE OF 8 HOURS PER DAY. HOWEVER THAT MAY BE, THE CONTRACTOR WOULD NOT BE ENTITLED TO BE PAID ON THE BASIS OF A DAY'S PAY FOR EACH 8 HOURS' WORK, AND THE PROCUREMENT OFFICER, SEATTLE, WASH., SHOULD BE SO INFORMED.