B-33662, APRIL 30, 1943, 22 COMP. GEN. 1008

B-33662, APRIL 30, 1943, 22 COMP. GEN. 1008

CONTRACTS - COST-PLUS - ADVERTISING AND TRANSPORTATION EXPENSES INCIDENT TO RECRUITING PERSONNEL UNDER AN ARCHITECT-ENGINEER CONTRACT REQUIRING THE CONTRACTOR, IN CONSIDERATION OF REIMBURSEMENT FOR THE "ACTUAL EXPENDITURES DIRECTLY CHARGEABLE TO THE WORK" AND OF A STIPULATED FIXED FEE COVERING PROFIT AND GENERAL OVERHEAD EXPENSES NOT EXPRESSLY PROVIDED FOR OTHERWISE, TO PREPARE THE NECESSARY SPECIFICATIONS, ETC., FOR A CERTAIN CONSTRUCTION PROJECT, AND TO FURNISH SUFFICIENT TECHNICAL, ETC., PERSONNEL TO INSURE THE PROSECUTION OF THE WORK, EXPENDITURES BY THE CONTRACTOR FOR ADVERTISING TO PROCURE SUCH PERSONNEL AND FOR THEIR TRANSPORTATION EXPENSES TO THE PROJECT SITE ARE CONSIDERED AS OBLIGATIONS OF THE CONTRACTOR CHARGEABLE TO THE FIXED FEE AND NOT AS REIMBURSABLE ITEMS OF COST, IN THE ABSENCE OF A CONTRACT PROVISION OTHERWISE.

COMPTROLLER GENERAL WARREN TO COL. F. PEARSON, U.S. ARMY, APRIL 30, 1943:

BY ST ENDORSEMENT DATED MARCH 10, 1943, THE CHIEF OF FINANCE FORWARDED HERE FOR CONSIDERATION YOUR LETTER OF AUGUST 1, 1942, AS FOLLOWS:

1. THE ENCLOSED VOUCHER OF CHARLES DE LEUW AND CO., COVERING CLAIM FOR REIMBURSEMENT OF TRANSPORTATION EXPENSES OF NEW EMPLOYEES FROM CHICAGO, ILLINOIS TO SIDNEY, NEBRASKA AND EXPENSES OF ADVERTISING FOR PERSONNEL FOR WORK AT THE SIOUX ORDNANCE DEPOT, SIDNEY, NEBRASKA, WAS SUBMITTED TO THE UNDERSIGNED, WHO IS A DISBURSING OFFICER, AND IS FORWARDED FOR ADVANCE DECISION.

2. REIMBURSEMENT IS CLAIMED UNDER ARTICLE III-E, PARAGRAPH 1, C OF CONTRACT NO. W-643-ENG-2528, WHICH READS AS FOLLOWS:

"REIMBURSEMENT UNDER THIS ARTICLE SHALL INCLUDE ALL ACTUAL EXPENDITURES DIRECTLY CHARGEABLE TO THE WORK AND SERVICES PROVIDED HEREIN PERFORMED AT THE ARCHITECT-1ENGINEER'S HOME OFFICE, ITS FIELD OFFICE, OR ELSEWHERE.'

THIS OFFICE IS IN DOUBT AS TO WHETHER OR NOT THIS PARTICULAR PROVISION IS APPLICABLE TO THE EXPENSES INVOLVED. CONTRACT CONTAINS NO PROVISION FOR REIMBURSEMENT OF EXPENSES FOR PROCURING LABOR. IT, THEREFORE, APPEARS THAT NEITHER THE COST OF TRANSPORTATION NOR EXPENSE OF NEWSPAPER ADVERTISING IS REIMBURSABLE.

3. CONTRACTUAL PROVISION PERTAINING TO TRAVEL STATES THAT IF THE ARCHITECT-1ENGINEER OR HIS REPRESENTATIVES ARE REQUIRED TO TRAVEL, THE COST OF TRANSPORTATION AND AN ALLOWANCE OF $6.00 PER DAY IN LIEU OF ALL OTHER EXPENSES WILL BE REIMBURSED. CONTRACT ALSO STATES THAT ALL TRAVEL SHALL BE EITHER AUTHORIZED OR APPROVED IN WRITING BY THE CONTRACTING OFFICER. IN THIS CONNECTION, ATTENTION IS INVITED TO THE FACT THAT SEVERAL TICKETS WERE PURCHASED PRIOR TO MARCH 23, 1942, EFFECTIVE DATE OF APPOINTMENT OF A CONTRACTING OFFICER'S REPRESENTATIVE FOR THE SIOUX ORDNANCE DEPOT. A PORTION OF THE EXPENSE OF NEWSPAPER ADVERTISING WAS ALSO INCURRED PRIOR TO THAT DATE. PURCHASE ORDER NO. 237 DATED MAY 1, 1942, WAS ISSUED AS THE AUTHORITY FOR INCURRING THE TRANSPORTATION EXPENSES AND WAS LATER SUPPLEMENTED BY A TRAVEL ORDER DATED MAY 18, 1942. LETTERS OF THE CONTRACTOR STATING THE NECESSITY FOR FURNISHING NEW EMPLOYEES' TRANSPORTATION TO THE PROJECT AND INCURRING EXPENSES OF NEWSPAPER ADVERTISING, ARE ATTACHED TO THE ENCLOSED VOUCHER.

4. IN THE ABSENCE OF PROPER CONTRACTUAL PROVISION, THIS OFFICE IS IN DOUBT AS TO PROPRIETY OF REIMBURSEMENT OF THE CLAIM SUBMITTED AND ADVANCE DECISION IS, THEREFORE, REQUESTED.

IN A LETTER DATED MAY 18, 1942, TO THE AREA ENGINEER, SIOUX ORDNANCE DEPOT, SIDNEY, NEBRASKA, THE CONTRACTOR EXPLAINS THE NECESSITY FOR INCURRING THE INVOLVED EXPENSES, AS FOLLOWS:

AT THE TIME CONTRACT NO. W-643-ENG-2528 WAS NEGOTIATED, IT WAS PRESUMED THAT WE WOULD REQUIRE MANY ADDITIONAL EMPLOYEES TO EXECUTE THIS CONTRACT PROPERLY AND COMPLETE WITHIN THE ALLOTTED TIME.

THE WORK FOR THIS CONTRACT IS LOCATED AT OR NEAR SIDNEY, NEBRASKA, A TOWN OF APPROXIMATELY 3,300 POPULATION. A THOROUGH INVESTIGATION REVEALED THAT IT WOULD BE IMPOSSIBLE TO SECURE ALL THE NECESSARY HELP AT OR NEAR THE SITE OF THE PROJECT. WE THEREFORE MADE ARRANGEMENTS TO HIRE THIS PERSONNEL THROUGH OUR HOME OFFICE, LOCATED IN CHICAGO, ILLINOIS.

WE WERE FORTUNATE IN OBTAINING SUFFICIENT HELP TO ENABLE US TO START OPERATIONS. HOWEVER, OUR CONTRACT COVERED A PERIOD OF ONLY SIXTY DAYS, AND BECAUSE OF THIS SHORT PERIOD OF TIME INVOLVED, THE 35 INDIVIDUALS LISTED ON THE ATTACHED INVOICE COULD NOT LEAVE THEIR HOMES IN CHICAGO TO TRAVEL TO NEBRASKA, THEIR OPINION BEING THAT IT WOULD BE ECONOMICALLY UNSOUND FROM THEIR STANDPOINTS. AS A MATTER OF FACT, MOST OF THESE PEOPLE WOULD NOT HAVE HAD SUFFICIENT READY CASH TO MAKE THIS TRIP. AS A RESULT, AND ACTING IN GOOD FAITH, THE CHICAGO OFFICE OF CHARLES DE LEUW AND COMPANY HIRED THESE PEOPLE IN CHICAGO AND PURCHASED THE NECESSARY RAILROAD TRANSPORTATION, WITH PULLMAN, TO ENABLE THESE PEOPLE TO REACH THE PROJECT AND REPORT FOR DUTY.

AS STATED ABOVE, THE AMOUNT OF $1,275.20 SHOWN ON THE ATTACHED INVOICE, WAS PAID BY CHARLES DE LEUW AND COMPANY IN GOOD FAITH, AND IN OUR JUDGMENT WAS A NECESSARY EXPENDITURE IN CONNECTION WITH THE PROPER EXECUTION AND COMPLETION OF CONTRACT NO. W-643-ENG-2528. WE THEREFORE REQUEST A PRE- AUDIT APPROVAL OF THIS $1,275.20, TO THE END THAT WE MAY RECEIVE REIMBURSEMENT THEREFOR.

ALSO, BY A LETTER DATED MAY 19, 1942, THE CONTRACTOR ADVISED THE AREA ENGINEER, AS FOLLOWS:

AT THE TIME CONTRACT NO. W-643-ENG-2528 WAS SIGNED, WE WERE ISSUED VERBAL INSTRUCTIONS TO PROCEED AT ONCE TO SIDNEY, NEBRASKA AND BEGIN OPERATIONS. ACCORDING TO THE TERMS OF THE CONTRACT, TITLE I WAS TO HAVE BEEN COMPLETED IN SIXTY DAYS. IT WAS NECESSARY THAT WE EMPLOY MANY ADDITIONAL PERSONS IN ORDER TO COMPLETE A PROJECT OF THIS MAGNITUDE IN SUCH A SHORT TIME.

WE CONTACTED MR. RUSSEL HAND, MANAGER OF THE UNITED STATES EMPLOYMENT SERVICE, IN SCOTTSBLUFF, NEBRASKA, WHICH WAS THE NEAREST OFFICE TO THE SITE OF THE WORK. HE WAS ABLE TO FURNISH US SOME HELP, BUT THE HIGHLY TECHNICAL MEN REQUIRED WERE NOT AVAILABLE THROUGH THIS SOURCE.

THE POLICY OF CHARLES DE LEUW AND COMPANY, WHEN IN NEED OF TECHNICAL HELP OF THIS NATURE, HAS BEEN TO ADVERTISE IN THE NEWSPAPER AND THEN INTERVIEW THE APPLICANTS TO DETERMINE IF THEY HAVE THE NECESSARY QUALIFICATIONS. INASMUCH AS WE WERE UNABLE TO SECURE THE NEEDED HELP BY OTHER MEANS, WE PLACED ADVERTISEMENTS IN NEWSPAPERS IN THE CHICAGO AREA, AND THE RESULTS OBTAINED WERE HIGHLY SATISFACTORY. HOWEVER, WE SOON EXHAUSTED THE AVAILABLE SUPPLY FROM THAT SOURCE, AND OUR VICE PRESIDENT, MR. L. H. CATHER, THEN MADE A TRIP TO DENVER, COLORADO, AND PLACED AN AD IN THE DENVER POST. THROUGH THIS LATTER MEDIUM WE WERE ABLE TO OBTAIN SUFFICIENT PERSONNEL.

IN OUR JUDGMENT THESE ITEMS OF EXPENSE, AS SHOWN ON THE ATTACHED INVOICE, WERE JUST AS NECESSARY FOR THE EFFICIENT EXECUTION AND COMPLETION OF OUR CONTRACT AS ANY OTHER OBLIGATION WE HAVE INCURRED. WE THEREFORE ARE ISSUING OUR CHECK COVERING THIS EXPENSE, PAYABLE TO OUR CHICAGO OFFICE, AND WE HEREBY REQUEST REIMBURSEMENT.

WITH RESPECT TO THE MATTER SET FORTH IN YOUR LETTER, THERE ARE FOR NOTING THE 4TH AND 6TH ENDORSEMENTS, RESPECTIVELY, AS FOLLOWS:

4TH IND. U.S. ENGR. OFFICE, 1709 JACKSON STREET, OMAHA, NEBRASKA,

NOVEMBER 4, 1942. TO: CHIEF OF ENGINEERS, U.S. ARMY, WAR DEPARTMENT, WASHINGTON,

D.C., THROUGH THE DIVISION ENGINEER, MISSOURI RIVER DIVISION

OMAHA, NEBRASKA.

IN VIEW OF THE DATA SET FORTH IN LETTERS TRANSMITTED HEREWITH CONCERNING AVAILABILITY OF EMPLOYEES TO THE ARCHITECT-1ENGINEER FOR WORK AT SIOUX ORDNANCE DEPOT, SIDNEY, NEBRASKA, IT IS THE OPINION OF THIS OFFICE THAT EMPLOYEES CAN NOT BE PROCURED BY CHARLES DE LEUW AND COMPANY FOR WORK ON SAID PROJECT WITHOUT PAYING TRANSPORTATION OF THE NEW EMPLOYEES TO THE PROJECT AND ADVERTISING FOR PERSONNEL IN ORDER TO RENDER EFFICIENT PROSECUTION OF THE WORK.

FOR THE DISTRICT ENGINEER:

(S) R. H. WIETHOP,

R. H. WIETHOP,

ST LT., CORPS OF ENGINEERS,

EXECUTIVE ASSISTANT.

6TH IND. OFFICE, C. OF E., FEBRUARY 15, 1943. TO: SERVICES OF SUPPLY, OFFICE CHIEF OF FINANCE.

1. THIS OFFICE RECOMMENDS ALLOWANCE OF THE SUBJECT CLAIM.

2. ALTHOUGH THE CONTRACT DOES NOT EXPRESSLY PROVIDE REIMBURSEMENT FOR EXPENSES OF ADVERTISING FOR AND TRANSPORTATION OF NECESSARY FIELD FORCES TO THE SITE OF THE WORK, IT IS IMPLICIT IN A COST-PLUS-A-FIXED FEE CONTRACT THAT, IN THE ABSENCE OF A PROVISION TO THE CONTRARY, SUCH COSTS ARE REIMBURSABLE AS ARE FOUND BY THE CONTRACTING OFFICER TO BE DIRECTLY ATTRIBUTABLE TO THE EFFICIENT PROSECUTION OF THE WORK. THE CONTRACTING OFFICER HAS FOUND (SEE 4TH IND.) THAT THE EFFICIENT PROCUREMENT OF PERSONNEL REQUIRED ADVERTISEMENT FOR AND TRANSPORTATION OF EMPLOYEES. ALTHOUGH THE COST OF TRAVEL OF A NEW EMPLOYEE FROM HIS HOME CITY TO THE SITE OF THE WORK IS NORMALLY BORNE BY THE EMPLOYEE, IN SOME CASES IT IS NECESSARY EITHER TO PAY A HIGHER WAGE AT THE SITE OF THE WORK THAN AT THE EMPLOYEE'S HOME CITY OR TO PAY HIS TRAVEL EXPENSES. THE CONTRACTING OFFICER HAS THE DUTY OF PROCURING PERSONNEL IN A MANNER MOST BENEFICIAL TO THE INTEREST OF THE GOVERNMENT. ACCORDINGLY, IT WAS WITHIN THE SCOPE OF HIS DUTIES TO APPROVE THE EXPENDITURES FOR WHICH REIMBURSEMENT IS HERE SOUGHT. THE PROVISION IN THE CONTRACT THAT "THE ARCHITECT-1ENGINEER SHALL FURNISH SUFFICIENT TECHNICAL, SUPERVISORY AND ADMINISTRATIVE PERSONNEL * * *" DOES NOT CONFLICT WITH THIS CONCLUSION SINCE THE WAGES OF SUCH PERSONNEL AS ARE NOT INCLUDED IN "OVERHEAD" ARE REIMBURSABLE ITEMS. (SEE ARTICLE III E, SECTION 1 A. OF CONTRACT.)

FOR THE CHIEF OF ENGINEERS:

(S) O. P. EASTERWOOD, JR.,

O. P. EASTERWOOD, JR.,

CAPTAIN, CORPS OF ENGINEERS,

ASSISTANT; CONTRACTS AND CLAIMS BRANCH,

ADMINISTRATIVE DIVISION.

HOWEVER, THERE IS FOR NOTING, ALSO, THE 5TH ENDORSEMENT WHICH READS AS FOLLOWS:

5TH IND. OFFICE, DIV. ENGR., MRD, OMAHA, NEBR., NOV. 6, 1942. TO: CHIEF OF ENGINEERS, U.S. ARMY, WAR DEPT., WASHINGTON, D.C. ATTENTION: LABOR RELATIONS BRANCH.

1. THE DIVISION ENGINEER RECOMMENDS DISALLOWANCE OF THE CLAIM OF THE ARCHITECT-1ENGINEER FOR REIMBURSEMENT.

2. THE DIVISION ENGINEER CONCURS IN STATEMENT OF THE DISTRICT ENGINEER CONTAINED IN PRECEDING ENDORSEMENT THAT THESE EXPENDITURES ON THE PART OF THE CONTRACTOR WERE NECESSARY; HOWEVER, IT IS CONSIDERED THAT THESE ITEMS ARE NON-REIMBURSABLE, INASMUCH AS THE TERMS OF CPFF CONTRACTS PLACE FULL RESPONSIBILITY FOR THE PROCUREMENT OF ALL PERSONNEL REQUIRED FOR THE COMPLETION OF THE WORK ON THE CONTRACTOR, IN PARAGRAPH 2 OF ARTICLE III-L ( PROGRESS REPORTS AND CHANGES IN PERSONNEL/---

"THE ARCHITECT ENGINEER SHALL FURNISH SUFFICIENT TECHNICAL, SUPERVISORY AND ADMINISTRATIVE PERSONNEL TO INSURE THE PROSECUTION OF THE WORK IN ACCORDANCE WITH THE APPROVED PROGRESS SCHEDULE. IF, IN THE OPINION OF THE CONTRACTING OFFICER, THE ARCHITECT-1ENGINEER FALLS BEHIND THE PROGRESS SCHEDULE, THE ARCHITECT-1ENGINEER SHALL TAKE SUCH STEPS AS MAY BE NECESSARY TO IMPROVE HIS PROGRESS * * *" IT IS CONSIDERED THAT PAYMENT OF TRAVEL EXPENSES AND ADVERTISING FOR PERSONNEL WERE STEPS NECESSARY TO IMPROVE OR MAINTAIN THE PROGRESS OF THE ARCHITECT-1ENGINEER AS CONTRACTED FOR. SUCH ACTION IS A NORMAL RESPONSIBILITY AND OBLIGATION OF THE CONTRACTOR IN SUCCESSFUL PROSECUTION OF THE CONTRACT, FOR WHICH HE IS RECEIVING A FIXED-FEE.

3. ATTENTION IS INVITED TO PARAGRAPH 18 OF NEGOTIATION BOARD FORM NO. 3 (REVISED JAN 3. 1942) FOR CONTRACT W-643-ENG-2528, DATED MARCH 12, 1942, AND REPLY OF THE CONTRACTOR THERETO:---

"18.* * * IF AWARDED THIS CONTRACT, HOW SOON WILL THE ARCHITECT 1ENGINEER ASSEMBLE THE NECESSARY PERSONNEL AND EQUIPMENT AND START WORK? " * * * "IMMEDIATELY.'

FOR THE DIVISION ENGINEER:

(S) DELBERT B. FREEMAN,

DELBERT B. FREEMAN,

MAJOR, CORPS OF ENGINEERS,

EXECUTIVE ASSISTANT.

MANIFESTLY, IT IS TO BE PRESUMED THAT CERTAIN EXPENSES INCURRED BY A COST -PLUS-A-FIXED-FEE CONTRACTOR INCIDENTAL TO PERFORMANCE OF THE WORK COVERED BY A CONTRACT SUCH AS IS HERE INVOLVED ARE INTENDED TO BE PAID BY HIM FROM THE GROSS PROFIT DERIVED FROM HIS FIXED FEE, AND THAT IN DETERMINING THE AMOUNT OF THE FIXED FEE THE PARTIES CONSIDERED AND MADE APPROPRIATE ALLOWANCES THEREFOR. HENCE, THE QUESTION WHETHER A PARTICULAR ITEM OF EXPENSE INCURRED IN CONNECTION WITH THE PERFORMANCE OF A COST-PLUS A-FIXED -FEE CONTRACT IS REIMBURSABLE TO THE CONTRACTOR OR WHETHER IT IS TO BE REGARDED AS INCLUDED IN THE FIXED FEE COVERING COMPENSATION FOR GENERAL OVERHEAD EXPENSES AND PROFIT DEPENDS, OF COURSE, UPON THE FACTS PERTAINING TO THE PARTICULAR TRANSACTION AND IS FOR DETERMINATION ON THE BASIS OF THE TERMS AND CONDITIONS OF THE CONTRACT INVOLVED CONSIDERED IN THE LIGHT OF THE INTENTION OF THE PARTIES AS EXPRESSED OR INDICATED THEREIN. SEE 22 COMP. GEN. 250, AND AUTHORITIES THERE CITED. IN THAT CONNECTION, IT SHOULD BE NOTED THAT, WHILE THE REIMBURSEMENT PROVISIONS OF A COST-PLUS-A- FIXED-FEE CONTRACT USUALLY VEST THE CONTRACTING OFFICER WITH BROAD AND GENERAL AUTHORITY IN THE MATTER OF APPROVING REIMBURSABLE ITEMS THEREUNDER, IT IS WELL SETTLED THAT THE GOVERNMENT IS NOT REQUIRED TO REIMBURSE THE CONTRACTOR FOR EACH AND EVERY EXPENSE IT MAY DECIDE TO INCUR ON THE BASIS OF THE CONTRACTING OFFICER'S APPROVAL OR RATIFICATION. SEE 21 COMP. GEN. 447, 466; 22 ID. 169, 183, 349. BUREAU VOUCHER NO. A-E 21, FORWARDED WITH YOUR LETTER, IS SUPPORTED BY WHAT APPEAR TO BE ORIGINAL INVOICES EVIDENCING PAYMENT OF THE AMOUNT CLAIMED BY THE CONTRACTOR FOR ADVERTISING TO OBTAIN PERSONNEL AND FOR TRANSPORTATION OF CERTAIN NEW EMPLOYEES FROM CHICAGO, ILLINOIS, TO SIDNEY, NEBRASKA, AND HAS BEEN APPROVED BY THE CONTRACTING OFFICER'S REPRESENTATIVE.

IT APPEARS THAT UNDER TITLE I OF CONTRACT NO. W-643-ENG-2528, DATED MARCH 13, 1942, THE CHARLES DE LEUW AND COMPANY, 20 NORTH WACKER DRIVE, CHICAGO, ILLINOIS, AGREED TO FURNISH ARCHITECT-ENGINEER SERVICES NECESSARY FOR THE PREPARATION OF REPORTS, DESIGNS, DRAWINGS, SPECIFICATIONS, ETC., FOR USE IN CONNECTION WITH THE CONSTRUCTION OF AN ORDNANCE AMMUNITION STORAGE DEPOT AT OR NEAR SIDNEY, NEBRASKA. IN ARTICLE I-D OF THE CONTRACT IT IS PROVIDED THAT, IN CONSIDERATION OF ITS UNDERTAKING UNDER TITLE I, THE CONTRACTOR SHALL RECEIVE THE FOLLOWING:

A. A FIXED FEE IN THE AMOUNT OF FIFTY THOUSAND DOLLARS ($50,000) WHICH SHALL CONSTITUTE COMPLETE COMPENSATION UNDER THIS TITLE I FOR THE ARCHITECT-1ENGINEER'S SERVICES, INCLUDING THE SERVICES OF THE RESIDENT PARTNERS OR CORPORATE OFFICERS, AND ALSO ALL GENERAL OVERHEAD EXPENSES EXCEPT AS OTHERWISE HEREIN EXPRESSLY PROVIDED. PAYMENTS ON ACCOUNT OF THE FIXED-FEE SHALL BE MADE AS PROVIDED IN ARTICLE III-G HEREOF.

B. REIMBURSEMENT FOR EXPENDITURES AS SPECIFIED IN TITLE III, ARTICLE III- E HEREOF. ARTICLE III-E, TITLE III, PROVIDES, GENERALLY, FOR REIMBURSEMENT OF SUCH OF THE CONTRACTOR'S ACTUAL EXPENDITURES INCURRED IN PERFORMANCE OF THE CONTRACT WORK AS ARE APPROVED OR RATIFIED BY THE CONTRACTING OFFICER AND, APPARENTLY, IT IS THE OPINION OF BOTH THE CONTRACTING OFFICER AND THE CHIEF OF ENGINEERS THAT PARAGRAPH 1 C THEREOF, AS QUOTED IN YOUR LETTER, SUPRA, COVERS THE ITEMS IN QUESTION. HOWEVER, CONSIDERATION OF THE CONTRACT IN ITS ENTIRETY INDICATES THAT THE TERM "ACTUAL EXPENDITURES DIRECTLY CHARGEABLE TO THE WORK," AS USED IN SAID PARAGRAPH, PROPERLY MAY NOT BE CONSTRUED AS HAVING BEEN INTENDED BY THE PARTIES TO COMPREHEND THE SAID ITEMS.

AS A GENERAL PROPOSITION, IT WOULD APPEAR THAT, IN THE ABSENCE OF AN EXPRESS PROVISION TO THE CONTRARY, ADVERTISING EXPENSES INCURRED BY A COST -PLUS-A-FIXED-FEE CONTRACTOR IN PROCURING EMPLOYEES FOR THE CONTRACT WORK WOULD BE CHARGEABLE TO THE CONTRACTOR AS PART OF THE PREPARATION COST NECESSARY TO ENABLE IT TO PERFORM UNDER THE CONTRACT. COMPARE 20 COMP. GEN. 921, WHEREIN THE CONTRACT THERE INVOLVED EXPRESSLY PROVIDED THAT THE CONTRACTOR SHOULD BE REIMBURSED FOR "EXPENSES OF PROCURING LABOR.'

ANY BELIEF WHICH COULD BE ENTERTAINED SUGGESTING THAT THE PARTIES TO THE CONTRACT MAY HAVE INTENDED THAT THE CONTRACTOR WOULD BE REIMBURSED FOR THESE ADVERTISING AND TRAVELING EXPENSES APPEARS TO BE NEGATIVED BY THE PROVISIONS OF PARAGRAPH 2, ARTICLE III-L, OF THE CONTRACT, QUOTED IN THE DIVISION ENGINEER'S 5TH ENDORSEMENT, ABOVE; AND SINCE, UNDER A FAIR AND REASONABLE CONSTRUCTION THEREOF, THE PROVISION THAT "THE ARCHITECT- 1ENGINEER SHALL FURNISH SUFFICIENT TECHNICAL, SUPERVISORY AND ADMINISTRATIVE PERSONNEL TO INSURE THE PROSECUTION OF THE WORK" OF PROCURING THE EMPLOYEES REFERRED TO AND OF ARRANGING FOR THEIR TRANSPORTATION TO THE PROJECT SITE IF NECESSARY, IT WOULD SEEM TO FOLLOW THAT IT CONTEMPLATES, ALSO, THAT ANY EXPENSES WHICH MIGHT BE INCURRED INCIDENT TO THE FULFILLMENT OF SUCH OBLIGATION SHOULD BE BORNE BY THE CONTRACTOR RATHER THAN BY THE GOVERNMENT. IN THAT CONNECTION THE CONTRACTOR, IN ITS LETTER OF MAY 19, 1942, ALSO QUOTED ABOVE, HAD STATED THAT IT IS THE POLICY OF THE COMPANY TO ADVERTISE IN THE NEWSPAPERS "WHEN IN NEED OF TECHNICAL HELP OF THIS NATURE," FROM WHICH IT CLEARLY APPEARS THAT THE EMPLOYEES HEREIN QUESTION ARE TECHNICAL PERSONNEL WITHIN THE MEANING OF PARAGRAPH 2, ARTICLE III-L. ALSO, PECULIARLY APPOSITE HERE IS THAT PART OF PARAGRAPH 18 OF NEGOTIATION BOARD FORM 3, QUOTED IN PARAGRAPH 3 OF THE DIVISION ENGINEER'S 5TH ENDORSEMENT, SUPRA, WHICH RATHER DEFINITELY SUGGESTS THAT EXPENDITURES OF THE CLASS HERE INVOLVED ARE SUCH AS CONSTITUTE AN OBLIGATION OF THE CONTRACTOR CHARGEABLE TO THE FIXED FEE.

OBVIOUSLY, THEN, ON THE BASIS OF THE FOREGOING CONSIDERATIONS, THERE APPEARS REQUIRED THE CONCLUSION THAT THE CONTRACTOR IS NOT ENTITLED TO RECEIVE REIMBURSEMENT FOR THE ADVERTISING AND TRAVELING EXPENSES COVERED BY BUREAU VOUCHER NO. A-E 21; AND IT FOLLOWS THAT PAYMENT ON SAID VOUCHER IS NOT AUTHORIZED.