To Turner's Express, Inc., April 5, 1960:

Consideration has been given to your request for a review of our settlement made in claim TK-562301, dated July 13, 1959. This settlement disallowed your claim for $271.31 additional to the charges paid to the delivering carrier, the New York & New Brunswick Auto Express Company, for the transportation of a shipment of ordnance material on bill of lading WY-2582224, dated September 22, 1953.

For the service furnished, the delivering carrier assessed and was paid charges based upon an exceptions rating provided in item 40, Middle Atlantic Conference Government Rate Sheet No. 450. Apparently, in the course of interline settlement, you questioned the correctness of those charges, arguing that the basis of ratings named in item 40 applied only where there was compliance with the condition contained therein that "Separate bills of lading and shipping orders must be issued for the contents of each vehicle and in no case may a single shipment exceed the carrying capacity of the vehicle used." The payee-carrier thereupon asked our Transportation Division for its views concerning the applicability of item 40. After the circumstances surrounding the tender of this shipment at origin had been investigated, the New York & New Brunswick Auto Express Company was informed that the question with respect to the necessity for issuing separate bills of lading for each vehicle did not arise, since the shipper stated the goods were tendered to and accepted by Turner's Express, Inc., as a single shipment moving on one Government bill of lading on one truck and that two seals were used on the truck. The same information was furnished you by letter of November 5, 1956, file T-FSD-DL-Vou-174759-11/53-JLW-NY&NBAE-500/56. On September 9, 1958, you presented your claim for $271.31, supported by a waiver from the payee-carrier and by copies of your origin bill N 112368 (partially illegible), and of New York & New Brunswick Auto Express Company Pro Nos. 354677-A and B, evidencing that the goods in fact moved in two trailers. This claim was disallowed on the basis of the administrative advice that the shipment was loaded in one vehicle, and your present request for review followed.

Government Rate Sheet No. 450 is a continuing offer to the United States, made under section 22 of the Interstate Commerce Act, 49 U.S.C. 22, id. 317(b), to transport certain of its goods at the exceptions ratings provided therein. Item 40 contains a truckload rating of class 2 for shipments of "Firearms or Parts, NOI" and "Machine Guns or Parts, NOI," which applies when a statement as to the actual or estimated value is not furnished the carrier, subject to a truckload minimum weight of 25,000 pounds. This item is subject to a restrictive note which makes the rating applicable to the actual weight loaded in the vehicle used subject to the minimum weight named. The note

also provides that separate bills of lading and shipping orders must be issued for the contents of each vehicle and provides that a single shipment may not exceed the carrying capacity of the vehicle used. Clearly, the offer so made connotes a holding-out by carriers parties thereto that they would accept and transport single shipments of the described goods and that they had available and would furnish vehicles capable of transporting at least the minimum truckload weight of 25,000 pounds. There is imposed upon carriers a statutory duty to issue bills of lading, 49 U.S.C. 20(11), 319; Valco Manufacturing Company v. C. Rickard & Sons, Inc., 92 A. 2d 501; Schroeder v. Railway Express Agency, Inc., 75 S.E. 2d 393; Exposition Cotton Mills v. Southern Ry. Co., 234 I.C.C. 441, from which they are not relieved by the circumstance that many large shippers, including the United States, issue their own shipping documents, mainly for the carriers' convenience. In the light of this statutory duty, the restrictive note would logically seem to import, as part of the offer, that carriers (in whose exclusive knowledge is the capacity and availability of their vehicles) when tendered a shipment which exceeds the capacity of those vehicles, will so inform the shipper and cause to be issued the necessary additional bill or bills of lading.

From the administrative report previously related to you, it seems clear that the intention of the shipper, the transportation officer at Fort Eustis, was to make one shipment to Raritan Arsenal, and that in furtherance of this intention one bill of lading was prepared and presented to your company as initial carrier. The bill of lading record is clear that Turner's Express, Inc., as the initial carrier, accepted the shipment as tendered. While the freight bill copies furnished us suggest that the goods actually moved through to destination in two trailers, both loaded below the truckload minimum weight, one with 20,540 pounds and the other with 17,764 pounds, there is nothing in the present record that explains the failure to comply with the shipper's intention in tendering the goods, and the carrier's apparent understanding of this intention in accepting them without exception, that there be made one shipment on one bill of lading in one truck. There is no showing that the shipment exceeded the carrying capacity of the vehicles commonly used by your company in overthe-road transportation service and held out, by your participation in item 40 in Government Rate Sheet No. 450, as being capable of containing at least 25,000 pounds of firearms, machine guns, and parts thereof. It is noted that the item does not indicate the maximum load the carrier would regard as a capacity load for a single vehicle, and limiting the rule to a basis of weight loaded on the vehicle used creates uncertainty as to what the charges on any given shipment might be, since the basis of charges would be dependent upon whether or not the carrier furnished a particular vehicle to accommodate the shipment

offered. Even if the entire shipment was in fact incapable of being loaded in a single vehicle of the size customarily offered by your company for over-the-road transportation, your representative upon receipt of the shipment did not issue or cause to be issued by the shipper the necessary second bill of lading contemplated by item 40.

In the circumstances, the transportation officer, in tendering one shipment on one bill of lading for transportation on one truck, did all that was then required of the shipper to accept the offer made in item 40. The United States may not be penalized by the assessment of additional charges because of the failure of the initial carrier to furnish a vehicle of sufficient size to contain the shipment; or, assuming a valid excuse therefor, because of the carrier's failure to require compliance with the restrictive note in Item 40, Government Rate Sheet No. 450, by exercising its statutory obligation with respect to the issuance of bills of lading. The disallowance of your claim was, therefore, proper and it is sustained.

Civilian Personnel

[B-142198]

Retirement

Reemployed Annuitants-Annuity Deductions-Contract Employees-Status as Contractor or Employee

Under an employment contract which describes the services as personal and professional, provides for periodic payments based on satisfactory performance of services for the period for which payment is claimed, for termination upon written notice, and does not make the contractor responsible for the end product, there is established an employer-employee relationship rather than the status of independent contractor.

An employment contract which provides for payment by the month at semimonthly intervals, rather than for payment of a sum certain for an end product, and provides for termination by either party without regard to the amount of work completed by the termination date is not to be regarded as a lump-sum contract with payments in installments at the convenience of the Government. A civil service retired annuitant who is reemployed under a contract which establishes an employer-employee relationship rather than an independent contractor status is to be considered as "employed" in an "appointive" position within the meaning of section 13 (b) of the Civil Service Retirement Act, 5 U.S.C. 2263, for annuity deductions, in view of the long-standing interpretation of the word "appointed" as bringing persons employed under contract under the statutory prohibitions, or restrictions, applicable to reemployed annuitants, and in the absence of any evidence of congressional intent that word "appointive" in section 13 (b) was used in a more restrictive sense than similar words in former statutes.

In view of the specific provisions in sections 5 and 7 of the act of September 2, 1957, Public Law 85-262, 71 Stat. 588 and 589, which deal with exemptions from laws affecting the employment of persons by the Lincoln Sesquicentennial Commission, the term "services" in section 4 of the act, which confers broad discretionary powers on the Commission in the procurement of "supplies, services and property" without regard to the laws and procedures applicable to Federal agencies, does not have reference to personal services; therefore, in the absence of the invocation of the authority in section 4 to exempt a civil service retired annuitant who was employed under contract by the Commission from the annuity deduction provisions in section 13 (b) of the Civil Service Retirement Act, 5 U.S.C. 2263, together with the fact that such deductions were made, the employee's compensation must be regarded as subject to annuity deduction.

To Manley W. Allen, Lincoln Sesquicentennial Commission, April 5, 1960:

On March 2, 1960, you submitted for our decision the question whether you may refund to Magareth Jorgensen, as claimed by her, the civil service retirement annunity deducted from payments made to her for services rendered under a contract with the Lincoln Sesquicentennial Commission.

Section 13 (b) of the Civil Service Retirement Act, as amended, 70 Stat. 757, 5 U.S.C. 2263, provides in pertinent part as follows:

(b) If an annuitant under this Act✶✶✶ hereafter becomes employed, or on the date of enactment of the Civil Service Retirement Act Amendments of 1956 is serving, in an appointive or elective position, his service on and after the date he was or is so employed shall be covered by this Act. No deductions for the fund shall be withheld from his salary, but there shall be deducted from his salary, except for lump-sum leave payment purposes under the Act of December 21, 1944, a sum equal to the annuity allocable to the period of actual employment, ***

The claimant was engaged under a contract entered into on November 3, 1958, between the Executive Director of the Lincoln Commission and the claimant. Articles I and II provided as follows:

ARTICLE I. Scope of Services. For the consideration of Five Hundred Dollars ($500.00) per month, the payment to be made by the Commission as hereinafter set forth, the Contractor shall, under the supervision of Dr. C. Percy Powell, Research Director of the Commission, perform the following personal and professional services:

Assist in the preparation of the text of a publication with the title "Lincoln: Day-by-Day 1861-1865" by close reading and competent examination of newspapers, published monographs, manuscript correspondence, periodical literature, and the like. The text will record the full daily activities of President Lincoln while he was in the White House.

ARTICLE II. Payment for Personal Services. Based on satisfactory performance of the services described in Article I hereof, as determined and approved in accordance with Article III hereof, the Contractor shall be entitled to be paid Five Hundred Dollars ($500.00) monthly. Payments shall be made twice a month, except that payment for work performed during the months of October 1958, and April 1959, shall be made on a pro-rata basis in one payment for each month.

Article III of the contract provided for payment on vouchers supported by semimonthly invoices or statements "describing the personal or professional services rendered *** during the billing period Articles IV and V are not pertinent to the matter here in question. Article VII provided that the contract was to be operative for a 6-month period beginning October 9, 1958, and terminating April 8, 1959. Article VIII provided that the contract could be terminated by either party prior to April 8, 1959, upon written notice of at least 30 days.

The contract on its face establishes an employer-employee relationship and does not constitute the claimant an independent contractor. Such conclusion follows from the provision describing the services as personal and professional; the provision for supervision; the provision for periodic payment based upon satisfactory performance of services for the period for which payment is claimed; and the pro

vision for termination upon written notice. Also of significance is the fact that the contract did not make the claimant entirely responsible for an end product or result-the claimant having been required merely to assist in the preparation of the text of the subject publication. 27 Am. Jur., Independent Contractors, §2; 56 C.J.S., Master and Servant, § 3(1), et seq.

We cannot agree with your suggestion that the contract may be viewed as a lump-sum one with payments in installments as a convenience to the Commission and the claimant as the work progressed. The contract clearly provided for payment by the month (with the exception of fractional periods in October 1958 and April 1959) at semimonthly intervals, and, as previously noted, did not provide a sum certain for an end product or result. Furthermore, the contract was subject to termination by either party upon written notice, without regard to the quantum of work completed by the termination date. In our opinion, those considerations negative a lump-sum characteristic.

You say that while the contract provided for supervision, it is understood that the claimant acted mostly independently and without close supervision, using the facilities of the Library of Congress. However, our view is that, even though the claimant may not have been continuously under direct observation or supervision, the provision in Article III for periodic submission of evidence of progress, together with the right of termination conferred by Article VIII, afforded the means of supervision sufficient to satisfy the element of control usually considered in determining whether a contractor is an independent contractor or an employee. 56 C.J.S., Master and Servant, §3 (3), (4), (5).

There remain for consideration the questions whether a person who serves under a contract of employment, such as the one here involved, is to be considered as "employed" in an "appointive" position within the meaning of section 13 (b) of the retirement act, supra, and, if so, whether any provision of Public Law 85-262, 71 Stat. 587, creating the Lincoln Sesquicentennial Commission, exempted, or served as a basis for the discretionary exemption of, a re-employed annuitant from the requirement for deduction of annunity from compensation.

As to the first question just stated, our decisions consistently have held that persons employed under a contract of employment are within statutory prohibitions against, or restrictions on, the re-employment of annuitants (section 204 of the act of June 30, 1932, 47 Stat. 404, 5 U.S.C. 715a (1952 ed.); section 2(b) of the act of May 29, 1930, as amended by section 2 of the act of January 24, 1942, 56 Stat. 13, 5 U.S.C. 715; section 2(b) of the act of February 28, 1948, 62 Stat. 49). 12 Comp. Gen. 300; 14 id. 253; 18 id. 573 (amplified, 18 id. 624); 22