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" 4. The officers mentioned, and several others not mentioned, who occupied quarters in the same building, were ordered out, as stated by the superintendent, in order that said quarters might be repaired, which could not be done while they were occupied; these officers had no choice in the matter, but were obliged to vacate, as ordered; and the duties they were performing, or were about to perform, had no bearing on the case.

“5. The auditor has disallowed commutation in these cases for the reason that 'No evidence is furnished that quarters relinquished on May 31, 1913, were required for assignment to other officers. As the quarters could not be repaired while occupied, they could not be assigned to other officers until the repairs had been completed, and it appears, therefore, that to deprive the officers in question of commutation for the reason stated, would work a hardship to those officers.

“6. The quarters vacated on May 31, 1913, were, by superintendent, assigned to various officers immediately upon the completion of the repair period, namely, upon October 1, 1913."

The appellant fails to state whether the same officers who occupied quarters in the officers' mess building prior to the “ repair period” were reassigned quarters in said building after the expiration of that period.

It appears that during the month of May, 1913, and prior thereto the officers above mentioned were on duty at the United States Naval Academy and were assigned to and occupied public quarters in the officers' mess building.

On May 24, 1913, the superintendent issued to Lieuts. Mayo, Corwin, Beauregard, and Bagley orders as follows:

"Report on June 2, 1913, to the commanding officer of the Illinois for special temporary duty on board that vessel during the ensuing midshipmen's summer practice cruise.

“ 2. Upon the completion of this duty return to the Naval Academy, Annapolis, Md., and resume your present duties.

“3. This is in addition to your present duties.'

Similar orders were issued on the same date to Lieut. Wolleson directing him to report June 6, 1913, on the U. S. S. Georgia.

On May 28, 1913, the superintendent directed each of said officers as follows:

On May 31, 1913, you will relinquish possession of the quarters at the officers' mess, previously assigned you, after which date there will be no quarters at this station available for your use."

The said officers were paid commutation of quarters thereafter, while at the academy (four officers for one day and one officer for five days), and while on the summer cruise, and so much of the payments therefor as were made by appellant were disallowed by the auditor as stated above.

It is to be noted that these officers who had been ordered to temporary sea duty were ordered to vacate the quarters they had been

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occupying just a day or two before they were to report on board the vessels to which they had been assigned, when such quarters were not required for assignment to other officers. Why were these officers not permitted to retain their quarters during their temporary absence ?

The reason given by the superintendent for the issuance of the orders to vacate said quarters is, “ That same might be repaired during the repair period at the Naval Academy, which is from June 1 to October 1, each year."

In reply to request for information as to the nature and extent of the repairs in question, the Superintendent of the Naval Academy in his letter of March 23, 1914, states:

“I have to inform you that the records of the Naval Academy show the following repairs made to officers' mess building between the dates of June 1 and September 30, 1913:

June. 2 and 3. Repairs to sink, 2 hours each day

$1. 52 14_

Repairs to waste pipe, 2 hours.. 17 Repairs to toilet, 2 hours.

44 25. Repairs to pipes, 2 hours--

. 44 25. Repairs, carpentry work, 4 hours

1.52 July. 8 and 9. Repairs to coils, 4 hours each day----

3. 24 24.. _Repairs to boiler and tank, 3 hours each day.--

1. 03 August. 15, 18, 19, Repairs to store flues, 3 days..

11. 24 22–30. Repairs to toilets, 6days.

17.00 28 and 29. Repairs to steam pipes, 1 hour each day

.88 26, 27, 28, 29. --Laying and cleaning carpets, 4 days.--

17. 28 September. 2, 3, 4.Repairs to steam pipes, 1 hour each day

1. 32 2, 3, 4, 5, 6, 8. Repairs to plumbing fixtures_

10.88 9... Repairs to telephones, 2 hours.

.85 24 and 25. Painting, 14 days.--

9.53 2, 4, and 25-----Cleaning and laying carpets.

13. 36

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Total cost --

91. 24"

Section 9 of the act of June 17, 1878 (20 Stat., 151), was amended by the act of March 2, 1907 (34 Stat., 1168), to read as follows:

“ That at all posts and stations where there are public quarters belonging to the United States oflicers may be furnished with quarters in kind in such public quarters, and not elsewhere, by the Quartermaster's Department, assigning to the officers of each grade, respectively, such number of rooms as is stated in the following table,

Provided further, That at places where there are no public quarters commutation therefor may be paid by the Pay Department to the officer entitled to the same at a rate not exceeding $12 per month per room."

The act of February 27, 1893 (27 Stat., 480), provides:

“ That hereafter officers (Army) temporarily absent on duty in the field shall not lose their right to quarters or commutation thereof at their permanent station while so temporarily absent.”

The above provisions were made applicable to commissioned officers of the Navy by the acts of March 3, 1899 (30 Stat., 1007), and May 13, 1908 (35 Stat., 127), and it has been held that officers of the Navy on duty at the Naval Academy, where they are properly in receipt of commutation of quarters, are entitled to that allowance while absent therefrom on special temporary duty with midshipmen during their summer practice cruise. (See 42 MS. Comp. Dec., 40, July 8, 1907; id., 365, 366, Aug. 3, 1907.)

In the latter decision, referring to the act of February 27, 1893, supra, it was stated :

“This statute authorizes the payment of commutation of quarters to naval officers who are entitled to that allowance during the time they are temporarily absent on duty from their permanent stations, provided they were receiving such commutation at the permanent stations, or if they were occupying public quarters, it gives them the right to retain their quarters during their absence." (See also 10 Comp. Dec., 40; 12 id., 793; 14 id., 154; 58 MS. Comp. Dec., 56, July 7, 1911; id., 343, July 26, 1911;id., 846, Aug. 28, 1911.)

It will be observed that the law quoted, supra, directs that at all stations where there are public quarters belonging to the United States officers shall be furnished with quarters in kind in such public quarters and not elsewhere, and authorizes the payment of commutation only where there are no public quarters.

The law prescribes under what circumstances quarters in kind shall be furnished and under what circumstances commutation there for shall be paid, and it is not left to the discretion of the commanding officer of a station.

The repairs made to the quarters in question were only such minor repairs as are usually and ordinarily made from time to time to private dwellings and apartments, not only without rendering it necessary for the occupants to vacate, but even without subjecting them to serious inconvenience. It is absurd to say that the repairs above enumerated necessitated the vacation by these officers of the quarters in question. As to the situation June 1 to 5, it is noticeable that the only work done during that period and up to the 14th was two hours each on the 2d and 3d, repairing sink.

It is concluded from the facts stated that the officers' mess building was just as much available for quarters on and after June 1, 1913, as it was before that date. This being true, there were public quarters at the Naval Academy available for these oflicers on and after June 1, 1913, while they were at the Naval Academy and while they were temporarily absent therefrom. The payment to them of commutation of quarters during this period was therefore contrary to law.

DELAY IN THE FILLING OF UNREASONABLE ORDERS.

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Under a contract requiring that one-third of certain estimated quantities of wire be delivered within a specified time and the remainder as may be required" within 30 days from receipt of order, orders for the remainder to be enforced as to time of delivery, must be reasonable, and the reasonableness of any order will be measured by the positive agreement as to time for delivery of one-third of the quantities.

Decision by Comptroller Downey, April 1, 1914:

The Hazard Manufacturing Co. requested, February 24, 1914, a revision of the action of the Auditor for the Navy Department in disallowing, March 20, 1913, its claim for certain sums deducted and withheld by the Navy Department as liquidated damages for delays in the delivery of certain materials furnished by said company under contracts Nos. 16628 and 16666, dated, respectively, February 29, 1912, and March 4, 1912.

The auditor disallowed the claim presented on the ground that the deductions were made strictly in accordance with the contract

terms.

The claim presented grows out of the two separate contracts above noted and will be so considered.

CONTRACT NO. 16628, DATED FEBRUARY 29, 1912.

By the terms of this contract claimant undertook and agreed to furnish and deliver at the navy yard, Brooklyn, N. Y., " about onethird of each item within 60 working days after date of contract and the remainder during the calendar year ending December 31, 1912, as may be required, within 30 days after date of receipt of order," the following items of wire, at stated prices per M feet:

1. 50,000 feet 4,000 C. M., at $24. 04. 2. 25,000 feet 9,000 C. M., at $45. 49. 3. 15,000 feet 11,000 C. M., at $45. 92. 4. 10,000 feet 14,000 C. M., at $47. 70.

5. 10,000 feet 18,000 C. M., at $54. 51.

6.

25,000 feet 23, 000 C. M., at $67. 61.

$1, 202. 00

1, 137. 25

688.80

477.00

545.00

1,690. 25 1,711.50

7. 25,000 feet 30,000 C. M., at $68. 46_.

160,000 feet total.

and 300,000 feet of bell wire, at $7.02 per M feet, $2,106, one-fourth in 45 days, one-fourth in 60 days, one-fourth in 90 days, and the remainder in 120 days from date of contract.

As to the quantities mentioned, items 1 to 7, supra, however, it was stipulated that—

"The quantities stated above for each item are estimated only, and are merely for the information of bidders in preparing bids. It shall be distinctly understood and agreed that it is the intention of the contract that the contractor shall furnish and deliver any quan

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tities of the above-mentioned single conductor which may be needed for the naval service at the place named during the remainder of the calendar year ending December 31, 1912, irrespective of the estimated quantity for each item named above." and as to delivery, it was agreed that time was an essential element of the contract, and that

“For each day's delay, Sundays and holidays excepted (and excepting also such delays as the contracting officer should find to have been due to certain enumerated causes) until satisfactory delivery or performance shall have been made," liquidated damages at the agreed rate of one-tenth of 1 per cent of the contract value of the undelivered articles should be deducted, such deductions, however, in no event to exceed 10 per cent of such value.

The “ 60 working days" allowed for the delivery of “ about onethird ” of the estimated quantities (for the delivery of which no special order was required or given) expired on May 9, 1912. Deliveries thereof were made on June 5 and 8, 1912, the Government being responsible for most of the apparent delay.

Orders for quantities additional to the one-third mentioned were given the contractor as follows:

March 16, 1912, for 70,000 feet of different items; April 22, 1912, for 48,000 feet of item 1; June 13, 1912, for 4,000 feet of item 2, and August 30, 1912, for 25,000 feet of items 2 and 3, which, with the onethird (53,332 feet) delivered without order, made a total of 251,332 feet required where but 160,000 had been estimated; and where by the contract terms, one-third of the estimated quantities (53,332 feet) was to be delivered within 60 working days, i. e., by May 9, 1912, yet before the expiration of that time, the contractor had been ordered to deliver in addition to said one-third more than the full estimated quantity, i. e., 169,000 feet had been ordered by April 30, 1912, and though the contract provided for the delivery of such orders “ within 30 days from receipt of order," the contractor was charged with damages as though the orders given it prior to May 9, 1912, were received by it on May 9, 1912, i. e., it was allowed 30 days not “ from date of receipt of orders," as provided by the contract, but from May 9, 1912, for the delivery of said orders. On orders given after May 9, 1912, the contractor was charged with damages for all delays be. yond 30 days from receipt of order that were not excusable and excused.

Calculated and deducted on the basis indicated, the damages deducted under this contract amounted to a total of $561.37. Except in two cases, where more than 10 per cent of the contract value of certain items was deducted, the deductions appear to have been correctly calculated, and if the contract is to be construed as author

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