Opinion of the Court 100 C. Cls. tiff, that is, upon the basis of the steep slopes, and not upon the basis of the slopes named in the specifications. The plaintiff protested verbally to the contracting officer against this method of computing the yardage for payment. He was told that his payments would be for amounts actually excavated, and having been so told, continued with the work and completed it. Paragraph 37 of the specifications is quoted in finding 7. Plaintiff made no written request for a statement pursuant to paragraph 37, and, of course, received no statement and filed no written objections such as are mentioned in that paragraph. When plaintiff had completed the work he filed a claim with the contracting officer for the difference between the payments made on the basis of the contracting officer's measurements, and the amounts that would have been due had the contracting officer measured on the basis of the slopes named in the specifications. The contracting officer denied the claim. The plaintiff appealed to the head of the department, who affirmed the contracting officer's decision. The plaintiff claims that according to the contract he was entitled to be paid on the basis of the slopes of one to one for common excavation, and one quarter to one for rock excavation, as named in the specifications, since the contracting officer did not bring the situation within the proviso of paragraph 39 by staking out or otherwise establishing dimensions and lines different from the ones specifically named. The defendant urges that the contracting officer, by using actual excavation to steep slopes as the basis for his measurement for monthly estimates, did "otherwise establish" a basis of measurement for payment within the meaning of the specifications; that the specifications did not require that the different basis of measurement for payment should be established before any of the work was done. We agree with the defendant's contention on this point. We think that the slopes stated in the specifications were principally intended to be maximum slopes beyond which, if the plaintiff exceeded them, he could not collect pay for the excess unless the contracting officer authorized the excess. We think that the Government did not contemplate paying 440 Opinion of the Court for unnecessary excavation, and that when it was discovered that the condition of the soil was such that steep slopes would stand and would not involve any increased collateral costs or dangers, it would have expected the contracting officer to establish such slopes as the payment slopes. The contracting officer did, in effect, so establish them by adopting them as the basis of measurement for the monthly payments, and by answering plaintiff's protests with a statement that the Government would continue to pay on that basis. He thereby notified plaintiff that steep slopes, such as plaintiff had, on his own motion, begun to cut, and which had proved satisfactory, were the slopes which would be used for payment. He thereby "established" the method by which the excavations would be measured for payment. Since the plaintiff was paid on that basis, he cannot recover more. It might be urged that the contracting officer did not establish the basis for payment which was used in compensating plaintiff until after the plaintiff had been at work for the first month of the time spent in the performance of the contract, since his method of measuring the excavations for payment was not brought to the plaintiff's attention until the contracting officer made his monthly estimate of work accomplished. But no showing has been made as to how much, or what kind, of excavation was done during that first month, so that we would have no basis for determining how much plaintiff should receive, if we were of the opinion that the basis of payment for the first month should be the one which plaintiff contends for for the entire operation. In view of what we have said, it is unnecessary for us to decide whether the Government's other defenses, viz., that plaintiff is barred because he did not pursue the contract procedure of filing a written request and written objections as specified in paragraph 37 of the specifications, quoted in finding 7, and that the decision of the head of the department adverse to plaintiff was final, are meritorious. Plaintiff's petition will be dismissed. It is so ordered. WHITAKER, Judge; LITTLETON, Judge; and WHALEY, Chief Justice, concur. JONES, Judge, took no part in the decision of this case. Opinion of the Court 100 C. Cls. CHARLES S. LOBINGIER v. THE UNITED STATES [No. 45824. Decided December 6, 1943. Plaintiff's motion for new trial overruled February 7, 1944] On Demurrer Civilian employee of Government transferred to new official station not entitled to expenses of packing, crating and drayage of household goods unless and until transported.-Under the act of October 10, 1940, and the applicable regulations issued thereunder, providing for the payment of expenses incurred by Government employee for the "packing, crating, drayage and transportation of household goods and personal effects" of such employee when transferred from one official station to another for permanent duty, it is held that recovery cannot be had for the expense of "packing, crating and drayage" unless and until such household goods are actually "transported" to the new official station. Mr. Charles S. Lobingier pro se. Mr. Frank J. Keating, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant. The facts sufficiently appear from the opinion of the court. MADDEN, Judge, delivered the opinion of the court: The plaintiff's petition, which, the defendant says, fails to state a cause of action, alleges the following facts. The plaintiff is an officer of the Federal Securities and Exchange Commission. His official station was, until March 1942, Washington, D. C., which was also the main office of the Commission. The main office of the Commission was at that time transferred to Philadelphia, Pennsylvania, as a part of the process of decentralizing the Government. On March 5, 1942, the plaintiff was directed to proceed to Philadelphia on or about March 16, 1942, to be permanently stationed there. To facilitate the decentralization process, Congress had, on October 10, 1940, 54 Stat. 1105, U. S. C., Title 5, § 73c-1, provided for the payment of— Expenses which now or hereafter may be authorized by law to be paid from Government funds for the packing, crating, drayage, and transportation of household goods and personal effects of civilian officers and employees of any of the executive departments or establishments of the United States when transferred 448 Opinion of the Court from one official station to another for permanent duty, Pursuant to the statute, and the Commission's order to proceed to Philadelphia, the plaintiff, with the approval of the Chief of the Commission's Budget and Accounting Section, employed the Merchants' Transfer and Storage Company, whose bid was the lowest, to perform the "packing, crating, and drayage" of his "household goods and personal effects," for which that company rendered a bill of $127.50. The goods were by the plaintiff's direction drayed to the storage house of the company, preparatory to their transportation to Philadelphia after plaintiff had arrived there and found a suitable apartment. On April 7, 1942, the President of the United States issued Executive Order No. 9122, of which Section 12 is as follows: All shipments allowable under these regulations shall begin within six months of the effective date of the transfer of the employee unless an extension is specifically granted by the head of the department or establishment. Such an extension shall be approved by the head of the department or establishment within the six months' period during which shipment would otherwise begin and shall in no case be for a period exceeding two years from the effective date of the transfer. On September 9, 1942, the Chairman of the Commission. approved plaintiff's request for an extension such as was authorized by the President's Executive Order, giving plaintiff until March 16, 1944, for the transportation of his "household goods and effects" to Philadelphia. Plaintiff has been seeking a suitable apartment in Philadelphia but has been unable, as yet, to find one. Plaintiff presented the bill of the Merchants' Transfer and Storage Company to the Federal Works Agency (Public Buildings Administration), which had charge of such matters. That agency refused to pay the bill but later referred the question to the Comptroller General, who affirmed the refusal. The plaintiff, in order to prevent the sale of his goods by the Merchants' Company for the unpaid charges, paid the bill of $127.50 and now sues the United States for that amount. The defendant demurs to the plaintiff's petition on the ground that, as it contends, an employee is not entitled to be Opinion of the Court 100 C. Cls. paid the expense of packing, crating, and draying his goods unless they are transported to the new official station. The plaintiff contends that the words, "packing, crating, drayage, and transportation" as used in the statute describe four separate kinds of reimbursable expenses, and that an employee, having incurred, as plaintiff has, three of the named kinds of expense, need not wait for reimbursement until he has incurred the fourth, viz, transportation. In support of its contention that expenses such as those for which plaintiff seeks recovery were intended to be paid only when they were incurred as an incident to transportation, the defendant points to several facts claimed by it to be indicative of that meaning. The title to the Act of October 10, 1940, is An Act To provide for uniformity of allowances for the transportation of household goods of civilian officers and employees when transferred from one official station to another for permanent duty. The Senate and House Reports on the bill, No. 1591 and No. 1947, 76th Congress, 3d Session, both contain the statement that the bill is the result of a recommendation of the Comptroller General. They say: The Comptroller General recommends that legislation be enacted to establish uniformity of allowances for the transportation of household goods and personal effects. of civilian officers and employees when transferred from one official station to another for permanent duty. The President's executive order, dated November 7, 1940, had the following heading: EXECUTIVE ORDER NO. 8588 Prescribing Regulations Governing the Payment of Expenses of Transportation of Household Goods and Personal Effects of Certain Civilian Officers and Employees of the United States. Section 4, a part of Section 5, and Section 11 of that order were as follows: SECTION 4. Allowances for Drayage.-The actual costs of drayage to and from the common carrier shall be allowed: Provided, That in no case shall costs of drayage |