1. WHERE FORMALLY ADVERTISED SOLICITATION CONTAINED SUBCONTRACTOR
LISTING REQUIREMENT, LOW BID WHICH LISTED PROPOSED SUBCONTRACTORS FOR
LISTED CATEGORIES OF WORK WAS NOT NONRESPONSIVE FOR FAILURE TO LIST
SECOND-TIER SUBCONTRACTORS WHO COULD CONCEIVABLY PERFORM WORK IN SEVERAL
OF THE CATEGORIES. SINCE SUBCONTRACTOR LISTING REQUIREMENT CONTAINS NO
PROVISION FOR LISTING SECOND-TIER SUBCONTRACTORS AND IS INTENDED TO
PRECLUDE POST AWARD "BID SHOPPING" BY BIDDERS, LISTING SUBCONTRACTORS
WITH WHOM BIDDER WOULD SUBCONTRACT IF AWARDED CONTRACT IS ALL THAT IS
REQUIRED FOR BID TO BE RESPONSIVE.
2. WHILE SOLICITATION DOES NOT SPECIFICALLY REQUIRE LISTED
CATEGORIES OF WORK BE DONE BY SUBCONTRACTORS LISTED, AND THUS PERMITS
LISTED SUBCONTRACTORS TO SUB-SUBCONTRACT WORK TO BE PERFORMED, WHERE
SUFFICIENT EVIDENCE IS PRESENTED PRIOR TO AWARD THAT LISTED
SUBCONTRACTOR INTENDS TO SUB-SUBCONTRACT ENTIRE OR SUBSTANTIAL PORTION
OF WORK CATEGORY SO AS TO CIRCUMVENT SPIRIT AND PROPOSE OF ANTI-BID
SHOPPING REQUIREMENT, AWARD TO SUCH BIDDER WOULD NOT BE PROPER.
HOWEVER, EVIDENCE SUFFICIENT TO SUPPORT THE EXISTENCE OF SUCH INTENT IS
NOT PRESENT IN THIS CASE.
EDGEMONT CONSTRUCTION COMPANY:
ON MARCH 14, 1974, AN INVITATION FOR BIDS (IFB) WAS ISSUED BY THE
GENERAL SERVICES ADMINISTRATION (GSA), PUBLIC BUILDING SERVICE (PBS),
FOR PROJECT NO. 240551. BIDS WERE OPEN ON MAY 9, 1974, FOR THE
REHABILITATION OF THE MILITARY PERSONNEL RECORDS CENTER IN ST. LOUIS,
MISSOURI. THE LOW BID FOR CONTRACT NO. GS-06B-13305 WAS FROM HILTON
CONSTRUCTION COMPANY (HILTON) IN THE AMOUNT OF $4,862,000, AND THE NEXT
LOW BID IN THE AMOUNT OF $4,880,000, WAS SUBMITTED BY EDGEMONT
CONSTRUCTION COMPANY (EDGEMONT).
EDGEMONT PROTESTS THE AWARD OF THE SUBJECT CONTRACT TO HILTON ON THE
GROUND THAT ITS BID WAS NONRESPONSIVE FOR FAILURE TO COMPLY WITH THE
SUBCONTRACTOR LISTING REQUIREMENT SPECIFIED IN THE INVITATION.
SPECIFICALLY, EDGEMONT CONTENDS THAT HILTON FAILED TO LIST ON THE
SUPPLEMENT TO BID FORM LIST OF SUBCONTRACTORS THE SECOND TIER
SUBCONTRACTORS WHO WERE ACTUALLY GOING TO PERFORM THE WORK IN SEVERAL OF
THE LISTED CATEGORIES. EDGEMONT ALLEGES THAT CONSOLIDATED MECHANICALS,
INCORPORATED, WHICH HILTON LISTED AS SUBCONTRACTOR FOR 9 OF THE 19
CATEGORIES ON THE FORM, IS NOT COMPETENT OR QUALIFIED TO PERFORM THE
WORK CALLED FOR BY THESE CATEGORIES AND WILL BE OBLIGED TO SUBCONTRACT
WITH SECOND TIER SUBCONTRACTORS FOR THE REQUIRED SERVICES; AND THAT
HILTON'S FAILURE TO ENTER ON THE BID FORM THE NAMES OF THE FIRMS WHICH
WILL ACTUALLY PERFORM THE WORK RENDERS ITS BID NONRESPONSIVE.
PERTINENT SECTIONS FROM THE SUBCONTRACTOR LISTING REQUIREMENTS
CONTAINED IN THE INVITATION SPECIAL CONDITIONS (SECTION 0110) ARE SET
OUT BELOW:
"12.1 FOR EACH CATEGORY ON THE LIST OF SUBCONTRACTORS WHICH IS
INCLUDED AS PART OF THE BID FORM, THE BIDDER SHALL SUBMIT THE NAME AND
ADDRESS OF THE INDIVIDUAL OR FIRM WITH WHOM HE PROPOSES TO SUBCONTRACT
FOR PERFORMANCE OF SUCH CATEGORY ***.
"12.6 THE TERM 'SUBCONTRACTOR' FOR THE PURPOSE OF THIS REQUIREMENT
SHALL MEAN THE INDIVIDUAL OR FIRM WITH WHOM THE BIDDER PROPOSES TO ENTER
INTO A SUBCONTRACT FOR MANUFACTURE, FABRICATING, INSTALLING, OR
OTHERWISE PERFORMING WORK UNDER THIS CONTRACT PURSUANT TO SPECIFICATIONS
APPLICABLE TO ANY CATEGORY INCLUDED ON THE LIST.
"12.13 IF THE BIDDER FAILS TO COMPLY WITH THE REQUIREMENTS OF
SUBPARAGRAPHS 12.1, *** OF THIS CLAUSE, THE BID WILL BE REJECTED AS
NONRESPONSIVE TO THE INVITATION."
THE FORM ATTACHED TO THE INVITATION FOR SUBCONTRACTOR LISTING SETS
FORTH NUMEROUS CATEGORIES OF CONTRACT WORK AND REQUIRES THE LISTING OF
THE NAMES AND ADDRESSES OF PROPOSED SUBCONTRACTORS, AS WELL AS THE
PORTION OF THE LISTED CATEGORY TO BE PERFORMED BY EACH WHERE MORE THAN
ONE SUBCONTRACTOR PER CATEGORY IS LISTED.
IN RESPONSE TO EDGEMONT'S PROTEST, IT IS THE ADMINISTRATIVE POSITION
THAT, "SO LONG AS A BIDDER ENTERS THE NAME OF THE SUBCONTRACTOR OR
SUBCONTRACTORS WITH WHOM HE WOULD SUBCONTRACT, IF AWARDED THE CONTRACT,
HE HAS DONE ALL THAT IS REQUIRED FOR BIDDING PURPOSES; NOTHING IN THE
FORGOING LANGUAGE (REFERRING TO THE LANGUAGE OF THE INVITATION'S
SUBCONTRACTOR LISTING REQUIREMENT) REQUIRES THAT HE INCLUDE THE NAMES OF
THOSE WITH WHOM HIS PROPOSED SUBCONTRACTORS WOULD SUB-SUBCONTRACT."
MOREOVER, GSA CONTENDS THAT THE REQUIREMENT FOR THE LISTING OF
SUBCONTRACTORS WAS EXPRESSLY WRITTEN TO ENCOMPASS ONLY THOSE WITH WHOM
THE BIDDER ON THE PRIME CONTRACT WAS IN PRIVITY AND IN ANY EVENT, THE
LISTING REQUIREMENT WAS ADOPTED ONLY TO MITIGATE THE PRACTICE OF BID
SHOPPING BY PRIM CONTRACTORS. FURTHERMORE, WHILE GSA RECOGNIZES THAT
UNDER THE LIMITED SCOPE OF THE ANTI-BID SHOPPING REQUIREMENT, A NAMED
SUBCONTRACTOR MAY SUB-SUBCONTRACT ANY PART OF HIS CONTRACTUAL
OBLIGATION, THE AGENCY CONTENDS THAT SUCH ACTION DOES NOT VIOLATE THE
SPIRIT OR PURPOSE OF THE REQUIREMENT UNLESS IT IS THE EXPRESSED INTENT
AND DESIGN OF THE NAMED SUBCONTRACTOR TO SUB-SUBCONTRACT VIRTUALLY ALL
OF THE CATEGORY IN QUESTION ONCE THE PRIME CONTRACT HAS BEEN AWARDED.
THE SUBCONTRACTOR LISTING REQUIREMENT IS INTENDED TO PRECLUDE
POST-AWARD "BID SHOPPING", I.E., THE SEEKING AFTER AWARD BY A PRIME
CONTRACTOR OF LOWER PRICED SUBCONTRACTORS THEN THOSE ORIGINALLY
CONSIDERED IN THE FORMULATION OF THE BID PRICE, AND, IS THEREFORE, A
MATERIAL REQUIREMENT PERTAINING TO BID RESPONSIVENESS. 50 COMP. GEN.
839, 842 (1971); 43 COMP. GEN. 206 (1963); B-178627, SEPTEMBER 14,
1973. SINCE THE PURPOSE OF THE LISTING REQUIREMENT IS TO PRECLUDE A
PRIME CONTRACTOR FROM ENGAGING IN THE PRACTICE OF BID-SHOPPING AFTER
CONTRACT AWARD, AND IN VIEW OF THE FACT THAT THE CLAUSE DOES NOT IMPOSE
ANY REQUIREMENT ON BIDDERS TO LIST SUBCONTRACTORS BELOW THE FIRST TIER,
OUR OFFICE CONCURS WITH GSA'S POSITION THAT SO LONG AS A BIDDER ENTERS
THE NAME OF THE SUBCONTRACTORS ON THE BID FORM WITH WHOM IT PROPOSES TO
SUBCONTRACT FOR PERFORMANCE OF THE RESPECTIVE CATEGORY, THE BIDDER IS IN
FULL COMPLIANCE WITH THE INVITATION'S SUBCONTRACTOR LISTING REQUIREMENT
AND THE BID IS RESPONSIVE.
WHILE THE SUBJECT IFB DOES PRECLUDE THE PRIME CONTRACTOR FROM EITHER
SUBSTITUTING ONE SUBCONTRACTOR FOR ANOTHER, OR FROM SUBSTITUTING A
SUBCONTRACTOR FOR HIMSELF ON WORK WHICH THE PRIME CONTRACTOR HAS
INDICATED HE HIMSELF WOULD PERFORM, EXCEPT UPON WRITTEN APPROVAL OF THE
CONTRACTING OFFICER, IT DOES NOT SPECIFICALLY REQUIRE THE LISTED
CATEGORIES OF WORK TO BE DONE BY THE SUBCONTRACTORS LISTED. SEE, 47
COMP. GEN. 644 (1968). THEREFORE, IT FOLLOWS THAT A LISTED
SUBCONTRACTOR MAY IN TURN SUBCONTRACT ALL OR A PORTION OF THE WORK TO
ANOTHER SUBCONTRACTOR WITHOUT VIOLATING THE TERMS OF THE IFB. B-179947,
APRIL 5, 1974. HOWEVER, OUR OFFICE HELD IN 47 COMP. GEN. 644, SUPRA,
THAT WHERE A BIDDER ACTS IN THE GUISE OF HIS OWN SUBCONTRACTOR WITH THE
INTENTION TO BID SHOP AMONG BONA FIDE SUBCONTRACTORS, AS EVIDENCED BY AN
EXPRESSED BELIEF PRIOR TO AWARD THAT NO LIMITATION IS IMPOSED UPON THE
AMOUNT OF WORK A LISTED SUBCONTRACTOR MAY AWARD TO A SECOND-TIER
SUBCONTRACTOR, AN AWARD TO SUCH A BIDDER WOULD BE IMPORPER. IF A BIDDER
WERE PERMITTED TO LIST A SUBCONTRACTOR WHOM HE KNEW WOULD ENGAGE IN BID
SHOPPING UPON AWARD OF THE CONTRACT, WHILE ALL OTHER BIDDERS EITHER
LISTED THEMSELVES OR BONA FIDE SUBCONTRACTORS, THE PURPOSE OF THE
SUBCONTRACTOR LISTING REQUIREMENT WOULD BE CIRCUMVENTED AND WE BELIEVE
THE RATIONALE OF THE ABOVE CASE WOULD APPLY. HOWEVER, UMLESS SUFFICIENT
EVIDENCE IS PRESENTED PRIOR TO AWARD TO THE PROCURING AGENCY THAT
DEFINITELY ESTABLISHES THAT THE BIDDER'S NAMED SUBCONTRACTOR CLEARLY
INTENDS TO SUB-CONTRACT AN ENTIRE WORK CATEGORY OR A SUBSTANTIAL
POSITION THEREOF, SO AS TO CIRCUMVENT THE SPIRIT AND PURPOSE OF THE
SUBCONTRACTOR LISTING REQUIREMENT, REJECTION OF ITS BID WOULD NOT BE
PROPER.
IN THIS CONNECTION, A REVIEW OF THE RECORD ON THIS POINT DISCLOSES
THAT EDGEMONT HAS NOT PRESENTED SUFFICIENT DOCUMENTATION TO SUPPORT ITS
ALLEGATION THAT HILTON'S LISTED SUBCONTRACTOR (CONSOLIDATED) INTENDS TO
ENTIRELY OR SUBSTANTIALLY SUB-SUBCONTRACT THE FOUR WORK CATEGORIES.
MOREOVER, THE PROTESTER HAS NOT SUBMITTED SUFFICIENT EVIDENCE TO
CONTROVERT THE PROCURING AGENCY'S POSITION THAT HILTON'S SUBCONTRACTOR
IS A COMPETENT, RELIABLE AND RESPONSIBLE FIRM CAPABLE OF PERFORMING THE
CATEGORIES OF WORK EITHER THEMSELVES OR THROUGH RESPONSIBLE LOWER TIER
SUBCONTRACTORS.
ACCORDINGLY, WE FIND NO LEGAL BASIS TO CONCLUDE THAT HILTON'S BID IS
NONRESPONSIVE TO THE SUBCONTRACTOR LISTING REQUIREMENT AND, THEREFORE,
EDGEMONT'S PROTEST IS DENIED.
B-181794, AUG 29, 1974
HEADNOTES-UNAVAILABLE
1. CONTRACTING AGENCY DETERMINATION THAT TELEGRAM ACKNOWLEDGING
ADDENDUM INCORPORATING DAVIS-BACON WAGE RATES IN IFB WAS RECEIVED LATE
BASED UPON AGENCY TIME STAMP WAS PROPER, NOTWITHSTANDING INFORMATION
FROM WESTERN UNION THAT IT WAS DELIVERED EARLY, SINCE INSTRUCTIONS TO
BIDDERS PROVIDED THAT AGENCY TIME STAMP WAS EVIDENCE REQUIRED TO BE USED
TO ESTABLISH TIME OF RECEIPT.
2. FAILURE TO TIMELY ACKNOWLEDGE ADDENDUM INCORPORATING DAVIS-BACON
WAGE DETERMINATION IN IFB RENDERED BID NONRESPONSIVE, NOTWITHSTANDING
CONTRACT LABOR STANDARDS PROVIDED CONTRACTOR SHALL PAY WAGE RATES
"CONTAINED IN WAGE DETERMINATION DECISION THAT IS ATTACHED TO THIS
SPECIFICATION OR ADDENDUM THERETO," SINCE ACCEPTANCE OF BID IN FORM IT
EXISTS AT TIME OF OPENING WOULD NOT RESULT IN CONTRACT CONTAINING
STATEMENT OF MINIMUM WAGE RATES AS REQUIRED BY DAVID-BACON ACT.
LAMBERT CONSTRUCTION COMPANY:
INVITATION FOR BIDS (IFB) NO. N62467-74-B-0289 WAS ISSUED BY THE
NAVAL FACILITIES ENGINEERING COMMAND (NAVFAC), CHARLESTON, SOUTH
CAROLINA, ON MAY 1, 1974, FOR REPAIRS TO BUILDING NUMBER 1 OF THE NAVAL
RESERVE CENTER, STILLWATER, OKLAHOMA.
ON MAY 23, 1974, NAVFAC ISSUED IFB ADDENDUM NO. 1, WHICH MADE
DEPARTMENT OF LABOR WAGE DECISION 74-0K-284, THE APPLICABLE DAVIS-BACON
ACT WAGE RATES, PART OF THE IFB SPECIFICATION. THE ADDENDUM STATED,
"EACH BIDDER SHALL REFER IN HIS BID TO ALL ADDENDA; FAILURE TO DO SO
MAY CONSTITUTE AN INFORMALITY IN THE BID."
THE LAMBERT CONSTRUCTION COMPANY (LAMBERT) BID OF $39,848 WAS THE
LOWEST BID RECEIVED AT THE 2:30 P.M. OPENING ON JUNE 6, 1974. LAMBERT
TRANSMITTED ITS ACKNOWLEDGMENT OF THE ADDENDUM VIA WESTERN UNION
TELEGRAM WHICH WAS TIME STAMPED AT THE CHARLESTON NAVAL SHIPYARD
COMMUNICATION CENTER (CENTER) AT 2:38 P.M. AND SUBSEQUENTLY DELIVERED TO
NAVFAC, SOME SEVERAL MILES FROM THE CENTER, AT 4:06 P.M., ON JUNE 6,
1974. SINCE THE TELEGRAM ACKNOWLEDGING RECEIPT OF THE ADDENDUM WAS
RECEIVED AFTER BID OPENING AT 2:30 P.M., LAMBERT'S BID WAS REJECTED AS
NONRESPONSIVE. AWARD WAS MADE TO B. D. CLICK COMPANY IN THE AMOUNT OF
$40,888.
LAMBERT PROTESTS THE REJECTION OF ITS BID AS NONRESPONSIVE ON TWO
GROUNDS. FIRST, IT OBJECTS TO NAVFAC'S DETERMINATION THAT THE TELEGRAM
ACKNOWLEDGING ITS RECEIPT OF THE ADDENDUM WAS LATE, BECAUSE THERE IS A
DISCREPANCY BETWEEN WESTERN UNION AND NAVFAC AS TO THE ACTUAL TIME OF
RECEIPT. NAVFAC MAINTAINS THAT THE TELEGRAM WAS RECEIVED AT 2:38 P.M.,
WHEREAS WESTERN UNION SUBMITS THAT THE TELEGRAM WAS DELIVERED BY TIELINE
AT 2:16 P.M., JUNE 16, 1974.
SECONDLY, LAMBERT ASSERTS THAT THE ADDENDUM WAS SUPERFLUOUS INASMUCH
AS PARAGRAPH 13 OF THE LABOR STANDARDS PROVISIONS OF THE CONTRACT
STATED:
"THE CONTRACTOR SHALL PAY MECHANICS AND LABORERS EMPLOYED OR WORKING
DIRECTLY UPON THE SITE OF THE WORK WAGE RATES NOT LESS THAN THOSE
DETERMINED AS PREVAILING BY THE SECRETARY OF LABOR AND CONTAINED IN THE
WAGE DETERMINATION DECISION THAT IS ATTACHED TO THIS SPECIFICATION OR
ADDENDUM THERETO. ***"
THE IFB STATES IN THE INSTRUCTIONS TO BIDDERS:
"LATE BIDS, MODIFICATIONS OF BIDS OR WITHDRAWAL OF BIDS (1973 SEP)
"(C) THE ONLY ACCEPTABLE EVIDENCE TO ESTABLISH:
"(II) THE TIME OF RECEIPT AT THE GOVERNMENT INSTALLATION IS THE
TIME/DATE STAMP OF SUCH INSTALLATION ON THE BID WRAPPER OR OTHER
DOCUMENTARY EVIDENCE OF RECEIPT MAINTAINED BY THE INSTALLATION."
UNDER THE FOREGOING INSTRUCTIONS TO BIDDERS, THE AGENCY TIME STAMP,
NOT THE WESTERN UNION INFORMATION, WAS THE EVIDENCE REQUIRED TO BE USED
TO ESTABLISH THE TIME OF RECEIPT. THEREFORE, THE DETERMINATION OF
NAVFAC THAT THE TELEGRAM WAS RECEIVED LATE BASED UPON THE TIME STAMP ON
THE TELEGRAM WAS PROPER.
NOTWITHSTANDING THE LANGUAGE QUOTED ABOVE FROM THE CONTRACT LABOR
STANDARDS PROVISIONS,
"*** THE CONTROLLING CONSIDERATION IN THIS AND SIMILAR CASES IS THAT
WHERE A BIDDER FAILS TO ACKNOWLEDGE AN AMENDMENT OF SUBSTANCE, THE BID
IS NONRESPONSIVE BECAUSE ACCEPTANCE OF THE BID IN THE FORM IT EXISTS AT
THE TIME OF OPENING WOULD NOT RESULT IN A CONTRACT CONTAINING A
STATEMENT OF THE MINIMUM WAGE RATES TO BE PAID AS REQUIRED BY THE
DAVIS-BACON ACT, 40 U.S.C. 276A." 51 COMP. GEN. 500, 503 (1972), AND
DECISIONS CITED THEREIN.
ON THE BASIS OF THE FOREGOING, WE FIND NO LEGAL OBJECTION TO THE
REJECTION OF LAMBERT'S BID AS NONRESPONSIVE.
ACCORDINGLY, THE PROTEST IS DENIED.
B-181959, AUG 29, 1974
HEADNOTES-UNAVAILABLE
BIDDER IS REQUIRED TO PROTEST TO GAO WITHIN 5 DAYS AFTER NOTIFICATION
OF INITIAL ADVERSE AGENCY ACTION ON PROTEST INITALLY LODGED IN AGENCY.
4 C.F. R. 20.2(A) AND 52 COMP. GEN. 20, 23 (1972). EVEN THOUGH
AGENCY'S PROTEST DENIAL OF JULY 9 DID NOT ACKNOWLEDGE PROTESTER'S
FURTHER STATEMENT OF PROTEST CONTAINED IN LETTER OF JULY 10, PROTESTER
SHOULD NOT HAVE DELAYED PROTESTING TO GAO UNTIL AFTER IT HAD RECEIVED A
RESPONSE TO ITS JULY 10 LETTER. SINCE PROTESTER RECEIVED INITIAL
NOTIFICATION OF ADVERSE AGENCY ACTION (AGENCY LETTER OF JULY 9) BY JULY
12 IT FAILED TO COMPLY WITH 4 C.F. R. 20.2(A) BY DELAYING ITS PROTEST
OT GAO UNTIL AUGUST 2.
ATLANTIC MOBILE CORPORATION PROTESTS THE REJECTION OF ITS BID UNDER
INVITATION FOR BIDS (IFB) NO. PGH. 172, ISSUED BY THE U.S. BUREAU OF
MINES FOR TWO MOBILE OFFICE TRAILERS AND A PULLMAN UNIT (ITEM 1).
BIDS UNDER THE SUBJECT INVITATION WERE OPENED ON JUNE 20, 1974, AND
ATLANTIC SUBMITTED THE HIGHEST OF 3 BIDS AT $21,000. THE LOW BID WAS IN
THE AMOUNT OF $11,790. BY LETTER DATED JUNE 26, 1974, ATLANTIC STATED
TO THE CONTRACTING AGENCY THAT IN ACCORDANCE WITH ITS READING OF THE
INVITATION SPECIFICATIONS THE TOTAL BID PRICE SHOULD COVER TWO GROUPS OF
UNITS, (4 TRAILERS AND 2 PULLMAN UNITS). BY TELEGRAM DATED JULY 1,
ATLANTIC STATED TO THE AGENCY THAT "IF AN AWARD IS MADE *** TO A BIDDER
OTHER THAN ATLANTIC MOBILE CORP., ATLANTIC WISHES TO FILE A FORMAL
PROTEST
***." BY LETTER DATED JULY 9, 1974, THE CONTRACTING OFFICER
ACKNOWLEDGED RECEIPT OF ATLANTIC'S PRIOR CORRESPONDENCE AND ADVISED THE
BIDDER THAT AWARD HAD BEEN MADE TO THE LOW BIDDER ON JUNE 28, 1974. THE
CONTRACTING OFFICER EXPRESSED REGRET THAT ATLANTIC HAD MISINTERPRETED
THE GOVERNMENT'S REQUIREMENTS WHERAS THE OTHER TWO BIDDERS DID NOT.
HOWEVER, THIS LETTER APPARENTLY CROSSED IN THE MAILS WITH ATLANTIC'S
LETTER OF JULY 10 IN WHICH IT PROVIDED THE CONTRACTING OFFICER A FURTHER
EXPLANATION OF ITS PROTEST. IN ADDITION, BY LETTER DATED JULY 12,
ATLANTIC NOTIFIED THE CONTRACTING OFFICER THAT IT REITERATED ITS
"PREVIOUS PROTEST" AND DEMANDED THAT THE CONTRACT AWARD BE TERMINATED.
BY LETTER DATED JULY 19, 1974, ATLANTIC'S "FORMAL PROTEST" AND REQUEST
FOR TERMINATION OF THE AWARD WAS DENIED. BY LETTER DATED JULY 24,
RECEIVED IN OUR OFFICE AUGUST 2, 1974, ATLANTIC PROTESTED TO THIS
OFFICE.
IN OUR OPINION ATLANTIC ESSENTIALLY PROTESTED TO THE AGENCY BY VIRTUE
OF ITS CORRESPONDENCE OF JUNE 26 AND JULY 1. THE AGENCY'S RESPONSE BY
LETTER OF JULY 9, IN EFFECT, DENIED THE PROTEST. EVEN THOUGH THE
AGENCY'S DENIAL OF JULY 9 DID NOT ACKNOWLEDGE ATLANTIC'S FURTHER
STATEMENT OF PROTEST OF JULY 10, THE AGENCY'S INITIAL DENIAL PROVIDED
NOTIFICATION OF ADVERSE AGENCY ACTION REGARDING ATLANTIC'S INITIAL
PROTEST. IN THIS CONNECTION SECTION 20.2(A) OF THE INTERIM BID PROTEST
PROCEDURES AND STANDARDS, 4 C.F. R. 20.2(A), REQUIRES THAT PROTESTS
WHICH ARE INITIALLY FILED WITH THE CONTRACTING AGENCY MUST BE RECEIVED
IN THIS OFFICE WITHIN FIVE DAYS OF NOTIFICATION OF ADVERSE AGENCY
ACTION. WE REGARD IT AS OBLIGATORY UPON A PROTESTER TO FILE HIS PROTEST
HERE WITHIN FIVE DAYS OF NOTIFICATION OF INITIAL ADVERSE AGENCY ACTION.
52 COMP. GEN. 20, 23 (1972). SINCE THE RECORD SHOWS THAT ATLANTIC HAD
RECEIVED SUCH INITIAL NOTIFICATION BY JULY 12, IT FAILED TO COMPLY WITH
THE ABOVE-CITED PROCEDURE AND WE DO NOT THINK ATLANTIC SHOULD HAVE
DELAYED PROTESTING HERE UNTIL AFTER IT HAD RECEIVED THE CONTRACTING
OFFICER'S JULY 19 LETTER.
ACCORDINGLY, THIS OFFICE WILL TAKE NO FURTHER ACTION IN THIS MATTER.
B-180172, AUG 28, 1974
HEADNOTES-UNAVAILABLE
A DEPARTMENT OF THE ARMY CIVILIAN EMPLOYEE WAS ISSUED PERMANENT
CHANGE OF STATION ORDERS TO FORT MACARTHUR, CALIFORNIA, AS A RESULT OF
THE CLOSING OF THE STATION AT VAN NUYS. CLOSING OF THE STATION AT VAN
NUYS, CALIFORNIA. AFTER CONTRACTING TO SELL HIS HOUSE PRIOR TO MOVING
TO FORT MACARTHUR, HE ACCEPTED EMPLOYMENT WITH THE FAA IN LOUISIANA ON
CONDITION THAT HE PAY HIS OWN MOVING EXPENSES. SETTLEMENT DISALLOWING
CLAIM FOR HOUSE SALE EXPENSES IS SUSTAINED, SINCE EMPLOYEE UNDERSTOOD
THAT, UNLIKE MOVE TO FORT MACARTHUR, MOVE TO LOUISIANA WAS AT HIS
REQUEST AND NOT IN THE INTEREST OF GOVERNMENT. HOUSE SALE EXPENSES
WOULD NOT BE ALLOWABLE IN ANY CASE, SINCE EMPLOYEE DID NOT GO TO
SETTLEMENT WITHIN ONE YEAR PERIOD NOR OBTAIN AN EXTENSION OF SETTLEMENT
PERIOD.
ROBERT B. BARABIN - RECONSIDERATION OF SETTLEMENT DISALLOWING HOUSE
SALE EXPENSES:
THIS ACTION IS IN RESPONSE TO A REQUEST FOR RECONSIDERATION OF
SETTLEMENT OF JULY 31, 1972, BY THE TRANSPORTATION AND CLAIMS DIVISION
OF OUR OFFICE, WHICH DISALLOWED THE CLAIM OF MR. ROBERT B. BARABIN,
FORMERLY AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY AND NOW EMPLOYED BY
THE FEDERAL AVIATION ADMINISTRATION (FAA), FOR CERTAIN RELOCATION
EXPENSES HE INCURRED IN CONNECTION WITH HIS TRANSFER TO FORT MACARTHUR,
CALIFORNIA AS A RESULT OF THE CLOSING OF HIS OLD OFFICIAL STATION AT VAN
NUYS, CALIFORNIA. THE SETTLEMENT ALSO SUSTAINED THE CLAIM OF THE UNITED
STATES AGAINST MR. BARABIN FOR A TRAVEL ADVANCEMENT IN THE AMOUNT OF
$775.
THE RECORD INDICATES THAT PERMANENT CHANGE OF STATION TRAVEL ORDER
NO. FMA LO#4-55 WAS ISSUED APRIL 19, 1971, BY THE DEPARTMENT OF THE
ARMY, TO MR. BARABIN, REASSIGNING HIM FROM THE VAN NUYS GUIDED MISSILE
SHOP, VAN NUYS, CALIFORNIA, TO THE FORT MACARTHUR MISSILE SHOP AT FORT
MACARTHUR, CALIFORNIA. THE TRAVEL ORDER AUTHORIZED REIMBURSEMENT OF
REAL ESTATE EXPENSES INCIDENT TO THE PROPOSED TRANSFER. MR. BARABIN
OBTAINED A TRAVEL ADVANCEMENT OF $775. AT THE SAME TIME HE APPLIED FOR
A POSITION LOCATED IN LOUISIANA WITH THE FAA. IN MID-MAY HE ACCEPTED
THIS FAA POSITION AND REPORTED FOR DUTY IN LOUISIANA INSTEAD OF
COMPLETING HIS MOVE TO FORT MACARTHUR, CALIFORNIA. INASMUCH AS THE
EMPLOYEE DID NOT COMPLY HIS PERMANENT CHANGE OF STATION TRAVEL ORDER,
THE DEPARTMENT OF THE ARMY BEGAN ACTION TO RECOUP THE $775 TRAVEL
ADVANCEMENT BY HOLDING TWO PAYROLL CHECKS DUE MR. BARABIN IN THE
AMOUNTS OF $330.28 AND $321.55 PENDING FINAL SETTLEMENT OF THE ADVANCE
PAYMENT.
MR. BARABIN HAS PROTESTED THIS ACTION AND CLAIMS THAT HE IS ENTITLED
TO REIMBURSEMENT OF EXPENSES INCURRED INCIDENT TO THE SALE OF HIS HOUSE
AT THE OLF OFFICIAL STATION SINCE HE HAD NEGOTIATED A HOUSE SALE
CONTRACT ON APRIL 19, 1971, INCIDENT TO HIS RELOCATION TO FORT
MACARTHUR, CALIFORNIA, AND BEFORE HE HAD ACCEPTED THE FAA POSITION. THE
EMPLOYEE MAINTAINS THAT THE REASON HE DID NOT GO TO SETTLEMENT WAS
BECAUSE HE WAS UNABLE TO DETERMINE FROM OFFICIALS AT FORT MACARTHUR,
DESPITE NUMEROUS INQUIRIES FOR OVER A PERIOD OF A YEAR, WHETHER HIS
ORDERS ENTITLED HIM TO REIMBURSEMENT OF HOUSE SALE EXPENSES. MR.
BARABIN STATES THAT THIS FACT WAS IMPORTANT BECAUSE THE APPRAISED VALUE
OF THE HOUSE WAS REDUCED AS A RESULT OF INTERVENING EARTHQUAKE DAMAGE
WHICH WOULD HAVE REQUIRED HIM TO SUSTAIN A LOSS ON THE SALE UNLESS IT
COULD BE RECOUPED THROUGH HOUSE SALE EXPENSES.
ELIGIBILITY FOR CHANGE OF STATION TRAVEL EXPENSES IS GOVERNED BY THE
PROVISIONS OF PARAGRAPH C 4100, VOLUME 2, DEPARTMENT OF DEFENSE JOINT
TRAVEL REGULATIONS (JTR), IN EFFECT AT THE TIME MR. BARABIN'S ORDERS
WERE ISSUED, WHICH PROVIDES:
"C 4100 ELIGIBILITY FOR PERMANENT CHANGE-OF-STATION TRAVEL
"1. GENERAL. TRAVEL AND TRANSPORTATION EXPENSES MAY BE ALLOWED ANY
EMPLOYEE WHEN IT IS IN THE INTEREST OF THE GOVERNMENT TO FILL A POSITION
BY MOVEMENT OF A CURRENT EMPLOYEE FROM ONE DUTY STATION TO ANOTHER
WITHIN OR OUTSIDE THE CONTINENTAL UNITED STATES (SEE SUBPAR. 2). THIS
AUTHORITY EXTENDS TO MOVEMENT FROM ONE FEDERAL GOVERNMENT DEPARTMENT OR
AGENCY TO ANOTHER. WITH THE EXCEPTION OF A FORMER EMPLOYEE SEPARATED BY
REASON OF REDUCTION IN FORCE OR TRANSFER OF FUNCTION WHO IS REEMPLOYED,
THERE MUST BE NO BREAK IN CONTINUITY OF GOVERNMENT SERVICE IN EFFECTING
A PERMANENT CHANGE OF STATION. A PERMANENT CHANGE-OF-STATION MOVEMENT
WILL NOT BE AUTHORIZED AT GOVERNMENT EXPENSE WHEN IT IS PRIMARILY FOR
THE BENEFIT OF THE EMPLOYEE OR AT HIS REQUEST. IF THE MOVEMENT IS
DETERMINED NOT TO BE IN THE INTEREST OF THE GOVERNMENT THE EMPLOYEE WILL
BE INFORMED PRIOR TO THE MOVEMENT AS TO HIS RESPONSIBILITY FOR PAYMENT
OF TRAVEL AND TRANSPORTATION EXPENSES."
THE MOVEMENT OF MR. BARABIN TO FORT MACARTHUR WAS IN THE INTEREST OF
THE GOVERNMENT, AND HAD HE COMPLIED FULLY WITH THESE TRAVEL ORDERS, HE
WOULD HAVE BEEN ENTITLED TO TRAVEL AND TRANSPORTATION EXPENSES INCIDENT
TO THE MOVE. HOWEVER, HE DECIDED NOT TO COMPLY WITH THESE ORDERS AND
ELECTED INSTEAD TO ACCEPT ANOTHER POSITION WHICH HE CONCEDES WAS FOR HIS
OWN BENEFIT. IN THIS CONNECTION, HE STATED IN AN UNDATED LETTER TO THIS
OFFICE, RECEIVED JANUARY 27, 1972, AS FOLLOWS:
"*** I DON'T WANT TO INVOLVE MY PARENT AGENCY (FAA) IN ANY WAY
BECAUSE I ASKED FOR THIS JOB AND UNDERSTOOD THAT I WAS TO PAY MY OWN
MOVING EXPENSE, MY AGREEING WAS BASED ON FUNDS THAT I FELT I WAS
ENTITLED TO THAT WOULD OFF SET THE OVERALL COSTS, MY MOVE WAS CONSIDERED
IN MY INTEREST. THIS I CANNOT DENY ANY JOB THAT I GET THAT REPRESENTS
AN INCREASE IN PAY AND BERRER SECURITY MUST BE IN MY INTEREST."
IT IS APPARENT FROM THE ABOVE QUOTED STATEMENT THAT HE HAD A FULL
UNDERSTANDING THAT TRAVEL AND TRANSPORTATION EXPENSES TO THE LOCATION OF
HIS NEW POSITION WITH THE FAA WAS HIS OWN RESPONSIBILITY.
HENCE HE WOULD NOT BE ENTITLED TO TRAVEL AND TRANSPORTATION EXPENSES
UNDER A TRAVEL ORDER THAT DIRECTED TRAVEL THAT HE DID NOT PERFORM.
IT IS TO BE NOTED THAT EVEN IF MR. BARABIN'S TRAVEL HAD BEEN IN THE
INTEREST OF THE GOVERNMENT, AND A TRAVEL ORDER HAD BEEN ISSUED
AUTHORIZING REIMBURSEMENT OF REAL ESTATE EXPENSES INCURRED INCIDENT TO
THE SALE OF HIS RESIDENCE AT VAN NUYS DUE TO HIS TRANSFER TO LOUISIANA
SUCH EXPENSES WOULD NOT BE ALLOWABLE. THE CONDITIONS GOVERNING
REIMBURSEMENT OF HOUSE SALE EXPENSES ARE SET FORTH IN PARAGRAPH C 8350
ET. SEQ., VOLUME 2, JTR, EFFECTIVE AT THE TIME OF MR. BARABIN'S TRANSFER
TO FAA AND PROVIDED IN PERTINENT PART:
"AN EMPLOYEE WILL BE ENTITLED TO REIMBURSEMENT FOR EXPENSES REQUIRED
TO BE PAID BY HIM IN CONNECTION WITH THE SALE OF HIS RESIDENCE AT HIS
OLD DUTY STATION *** AFTER HE HAS SIGNED THE REQUIRED TRANSPORTATION
AGREEMENT AND PROVIDED THAT:
"4. THE SETTLEMENT DATES FOR THE SALE *** FOR WHICH REIMBURSEMENT IS
REQUESTED, ARE NOT LATER THAN 1 (INITIAL) YEAR AFTER THE DATE ON WHICH
THE EMPLOYEE REPORTED FOR DUTY AT THE NEW DUTY STATION, EXCEPT THAT AN
APPROPRIATE EXTENSION OF TIME MAY BE AUTHORIZED BY THE COMMANDING
OFFICER OF THE ACTIVITY BEARING THE COST, OR HIS DESIGNEE, WHEN
SETTLEMENT IS NECESSARILY DELAYED BECAUSE OF LITIGATION; OR THAT AN
ADDITIONAL PERIOD OF TIME NOT IN EXCESS OF 1 YEAR MAY BE AUTHORIZED OR
APPROVED BY THE COMMANDING OFFICER OF THE ACTIVITY BEARING THE COST, OR
HIS DESIGNEE WHEN IT IS DETERMINED THAT CIRCUMSTANCES JUSTIFYING THE
EXCEPTION EXIST WHICH PRECLUDED SETTLEMENT WITHIN THE INITIAL 1-YEAR
PERIOD OF THE SALE/PURCHASE CONTRACTS *** ENTERED INTO IN GOOD FAITH BY
THE EMPLOYEE WITHIN THE INITIAL 1-YEAR PERIOD (THE CIRCUMSTANCES ON
WHICH THE DETERMINATION IS MADE TO JUSTIFY THE EXCEPTION WILL BE SET
FORTH IN WRITING) ***."
IN ACCORDANCE WITH THE PROVISIONS OF THE ABOVE QUOTED REGULATION, THE
EMPLOYEE WAS REQUIRED TO EITHER GO TO SETTLEMENT WITHIN ONE YEAR AFTER
HIS REPORTING DATE TO HIS NEW OFFICIAL STATION OR OBTAIN AN EXTENSION
FROM THE COMMANDING OFFICER OF THE ACTIVITY BEARING THE COST OF HIS
MOVEMENT. THE GRANTING OF AN EXTENSION OF THE SETTLEMENT PERIOD WAS
DISCRETIONARY WITH THE COMMANDING OFFICER AND, SINCE THE DISCRETION WAS
NOT EXERCISED, NO EXTENSION WAS AUTHORIZED. INASMUCH AS SETTLEMENT WAS
NOT ACCOMPLISHED WITHIN THE INITIAL YEAR PERIOD, AND NO EXTENSION WAS
AUTHORIZED, MR. BARABIN WOULD NOT UNDER ANY CONDITION BE ENTITLED TO
REIMBURSEMENT FOR HOUSE SALE EXPENSES. B-178522, JUNE 21, 1973.
ACCORDINGLY, THE SETTLEMENT CERTIFICATE OF JULY 31, 1972, ISSUED BY OUR
TRANSPORTATION AND CLAIMS DIVISION IS HEREBY SUSTAINED AND MR. BARABIN
SHOULD REMIT THE UNLIQUIDATED BALANCE OF $123.17 (REPRESENTING THE
BALANCE OF THE $774 TRAVEL ADVANCEMENT AFTER PAYROLL CHECKS IN THE
AMOUNT OF $651.83 ARE DEDUCTED) TO THE UNITED STATES GOVERNMENT THROUGH
THE FEDERAL AVIATION AGENCY WITHOUT DELAY.
B-181564, AUG 28, 1974
HEADNOTES-UNAVAILABLE
TIME LIMITATIONS IMPOSED BY 4 CFR 20.2(A) OF INTERIM BID PROTEST
PROCEDURES AND STANDARDS PROVISIONS FOR FILING PROTEST, FIRST WITH
CONTRACTING AGENCY AND THEN WITH GAO, ARE INTENDED TO PROVIDE EFFECTIVE
REMEDIAL ACTION AND THEREFORE MUST BE OBSERVED. THUS, WHERE PROTEST
ALLEGING IMPROPRIETY IN SOLICITATION IS NOT FILED WITH CONTRACTING
AGENCY WITHIN STATED TIME LIMITATION, IT MAY NOT BE CONSIDERED BY GAO.
JOHNSON SERVICE COMPANY:
THIS DECISION CONCERNS A PROTEST SUBMITTED BY JOHNSON SERVICE COMPANY
(JOHNSON) AGAINST AWARD OF CONTRACT UNDER INVITATION FOR BIDS (IFB)
62474-73-B-5236, ISSUED BY THE WESTERN DIVISION, NAVAL FACILITIES
ENGINEERING COMMAND.
THE IFB CALLED FOR BIDS TO UPGRADE AND REPLACE SUPPORTING FACILITIES
AT THE NAVAL HOSPITAL, OAKLAND, CALIFORNIA. BIDS WERE OPENED ON MAY 21,
1974. ON JUNE 4, 1974, JOHNSON FILED A PROTEST WITH THE PROCURING
AGENCY ALLEGING THAT THE IFB CONTAINED AN UNDULY RESTRICTIVE
SPECIFICATION. ITS PROTEST WAS DENIED ON JUNE 20, 1974, WHEREUPON
JOHNSON FILED A PROTEST WITH OUR OFFICE.
THIS PROTEST WILL NOT BE CONSIDERED BY OUR OFFICE SINCE, FOR THE
REASONS THAT FOLLOW, IT WAS FILED UNTIMELY. THE INTERIM BID PROTEST
PROCEDURES AND STANDARDS PROVISIONS FOR FILING A PROTEST (4 CFR 20.2(A))
PROVIDE IN PART:
"*** PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF
SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING OR THE CLOSING DATE
FOR RECEIPT OF PROPOSALS SHALL BE FILED PRIOR TO BID OPENING OR THE
CLOSING DATE CLOSING DATE FOR RECEIPT OF PROPOSALS. *** IF A PROTEST
HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT
PROTEST TO THE GENERAL ACCOUNTING OFFICE FILED WITHIN 5 DAYS OF
NOTIFICATION OF ADVERSE AGENCY ACTION WILL BE CONSIDERED PROVIDED THE
INITIAL PROTEST TO THE AGENCY WAS TIMELY. ***"
IF THE IFB CONTAINED AN UNDULY RESTRICTIVE SPECIFICATION, THIS
IMPROPRIETY WAS APPARENT AND SHOULD HAVE BEEN PROTESTED PRIOR TO BID
OPENING. SINCE THE PURPOSE OF SECTION 20.2(A) IS TO EXPEDITIOUSLY
RESOLVE PROTESTS AT A STAGE IN THE PROCUREMENT WHEN SOME EFFECTIVE
REMEDIAL ACTION MAY BE TAKEN ON MERITORIOUS PROTESTS, WE THINK IT
INAPPROPRIATE FOR THERE TO BE FILED AN ALLEGATION OF IMPROPRIETY IN AN
IFB AFTER BIDS HAVE BEEN OPENED AND BIDS EXPOSED. 52 COMP. GEN. 20
(1972). THEREFORE, JOHNSON'S PROTEST, FILED 14 DAYS AFTER BID OPENING,
WAS UNTIMELY.
IN VIEW OF THE DETERMINATION THAT THE PROTEST TO OUR OFFICE IS
UNTIMELY, THE QUESTION ARISES WHETHER THERE IS GOOD CAUSE SHOWN OR
WHETHER THE PROTEST RAISES ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES
OR PROCEDURES THAT WARRANT CONSIDERATION OF THE PROTEST. SEE SECTION
20.2(B) OF THE INTERIM BID PROTEST PROCEDURES AND STANDARDS.
AS STATED IN 52 COMP. GEN., SUPRA:
"*** 'GOOD CAUSE' VARIES WITH THE CIRCUMSTANCES OF EACH PROTEST,
ALTHOUGH IT GENERALLY REFERS TO SOME COMPELLING REASON, BEYOND THE
PROTESTOR'S CONTROL, WHICH HAS PREVENTED HIM FROM FILING A TIMELY
PROTEST. ***"
WE FIND NOTHING IN THE RECORD WHICH WOULD INDICATE THAT THERE WERE
CIRCUMSTANCES BEYOND JOHNSON'S CONTROL THAT PREVENTED IT FROM FILING A
TIMELY PROTEST. FURTHER, AS STATED IN THE ABOVE-CITED DECISION:
"*** 'ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES OR PROCEDURES'
REFERS *** TO THE PRESENCE OF A PRINCIPLE OF WIDESPREAD INTEREST. ***"
WE FIND NO SUCH PRINCIPLE TO BE EVIDENCED BY THE MATERIAL AND
ALLEGATIONS CONTAINED IN THE RECORD.
ACCORDINGLY, THE PROTEST WILL NOT BE CONSIDERED ON THE MERITS BY OUR
OFFICE.
B-181972, AUG 28, 1974
HEADNOTES-UNAVAILABLE
AWARD BY ARBITRATOR OF BACK PAY FOR OVERTIME OPPORTUNITIES IMPROPERLY
DENIED TO EMPLOYEES IS NOT AUTHORIZED BECAUSE THERE HAS NOT BEEN AN
UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION UNDER 5 U.S.C. 5596 (1970)
AND BECAUSE NO OVERTIME WAS ACTUALLY PERFORMED.
CHARLESTON NAVAL SHIPYARD - ARBITRATION AWARD OF NIGHT DIFFERENTIAL:
THE ASSISTANT SECRETARY OF THE NAVY (MANPOWER AND RESERVE AFFAIRS)
HAS REQUESTED AN OPINION AS TO WHETHER AN ARBITRATOR'S AWARD OF A NIGHT
DIFFERENTIAL TO AGGRIEVED EMPLOYEES IS PROPERLY PAYABLE. BY SUBMITTING
THE ARBITRATION AWARD TO THIS OFFICE FOR A RULING ON THE LEGALITY OF ITS
IMPLEMENTATION, WE ASSUME THAT THE DEPARTMENT OF THE NAVY HAS NOT
DESIRED TO NOTE AN EXCEPTION WITH THE FEDERAL LABOR RELATIONS COUNCIL ON
GROUNDS PERMITTED UNDER PROVISIONS OF SECTION 13(B) OF EXECUTIVE ORDER
NO. 11491, 3 C.F.R. 254 (1974).
THE ARBITRATOR DETERMINED THAT THE EMPLOYEES HAD BEEN DENIED SWING
SHIFT ASSIGNMENTS IN VIOLATION OF A LABOR-MANAGEMENT RELATIONS AGREEMENT
BETWEEN THE CHARLESTON NAVAL SHIPYARD AND THE FEDERAL EMPLOYEES METAL
TRADES COUNCIL, CHARLESTON, WHICH, AMONG OTHER PROVISIONS, REQUIRED
ASSIGNMENTS TO NIGHT SHIFT DUTY TO BE MADE IN ROTATION IN THE ORDER OF
SENIORITY BY SERVICE COMPUTATION DATE WHEN THERE ARE MORE QUALIFIED
VOLUNTEERS THAN ARE REQUIRED, GIVING FIRST CONSIDERATION TO EMPLOYEES
CURRENTLY ASSIGNED TO THE JOB. THE SHIPYARD APPARENTLY MADE THE
ASSIGNMENT ON SOME OTHER BASIS. RELYING ON 5 U.S.C. 5596 (1970), THE
ARBITRATOR AWARDED BACK PREMIUM PAY TO THE EMPLOYEES WHO WOULD HAVE BEEN
ELIGIBLE FOR THE ASSIGNMENTS BUT FOR THE VIOLATION.
5 U.S.C. 5596(B) (1970) PROVIDES IN PERTINENT PART:
"AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE
DETERMINATION OR A TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY
UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR
UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR
REDUCTION OF ALL OR A PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF
THE EMPLOYEE -
"(1) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE
FOR THE PERIOD FOR WHICH THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT
EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS, AS
APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD HAVE EARNED DURING THAT
PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED
BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD. ***"
THE IMPLEMENTING CIVIL SERVICE COMMISSION REGULATION, 5 C.F.R.
550.803 (1974), PROVIDES IN PART:
"(E) A PERSONNEL ACTION REFERRED TO IN SECTION 5596 OF TITLE 5,
UNITED STATES CODE, AND THIS SUBPART IS ANY ACTION BY AN AUTHORIZED
OFFICIAL OF AN AGENCY WHICH RESULTS IN THE WITHDRAWAL OR REDUCTION OF
ALL OR ANY PART OF THE PAY ALLOWANCES, OR DIFFERENTIALS OF AN EMPLOYEE
AND INCLUDES, BUT IS NOT LIMITED TO, SEPARATIONS FOR ANY REASON
(INCLUDING RETIREMENT), SUSPENSIONS, FURLOUGHS WITHOUT PAY, DEMOTIONS,
REDUCTIONS IN PAY, AND PERIODS OF ENFORCED PAID LEAVE WHETHER OR NOT
CONNECTED WITH AN ADVERSE ACTION COVERED BY PART 752 OF THIS CHAPTER."
THE DENIAL OF THE OPPORTUNITY FOR OVERTIME TO THE EMPLOYEES, THOUGH
FOUND TO BE IN VIOLATION OF THE COLLECTIVE BARGAINING AGREEMENT BY THE
ARBITRATOR, IS NOT AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WITHIN
THE MEANING OF THE STATUTE OR THE REGULATIONS. B-175867, JUNE 19, 1972.
SINCE THE OVERTIME WAS NOT ACTUALLY PERFORMED, PAYMENT IS NOT
AUTHORIZED UNDER THE OVERTIME STATUTE, WHICH PROVIDES IN PERTINENT PART:
"FOR FULL-TIME, PART-TIME AND INTERMITTENT TOURS OF DUTY, HOURS OF
WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN
ADMINISTRATIVE WORKWEEK, OR (WITH THE EXCEPTION OF AN EMPLOYEE ENGAGED
IN PROFESSIONAL OR TECHNICAL ENGINEERING OR SCIENTIFIC ACTIVITIES FOR
WHOM THE FIRST 40 HOURS OF DUTY IN AN ADMINISTRATIVE WORKWEEK IS THE
BASIC WORKWEEK AND AN EMPLOYEE WHOSE BASIC PAY EXCEEDS THE MINIMUM RATE
FOR GS-10 FOR WHOM THE FIRST 40 HOURS OF DUTY IN AN ADMINISTRATIVE
WORKWEEK IS THE BASIC WORKWEEK) IN EXCESS OF 8 HOURS IN A DAY, PERFORMED
BY AN EMPLOYEE ARE OVERTIME WORK AND SHALL BE PAID FOR, EXCEPT AS
OTHERWISE PROVIDED BY THIS SUBCHAPTER, AT THE FOLLOWING RATES ***." 5
U.S.C. 5542(A) (SUPP. II, 1972)
THE STATUTE CLEARLY CONTEMPLATES THE ACTUAL PERFORMANCE OF DUTY
DURING THE OVERTIME PERIOD. SEE FEDERAL PERSONNEL MANUAL SUPPLEMENT
532-1, S8-4B (JUNE 16, 1973); 46 COMP. GEN. 217 (1966); 42 COMP. GEN.
195 (1962); B-175867, JUNE 19, 1972.
AS AUTHORITY FOR DENYING THE NIGHT DIFFERENTIAL, THE NAVY CITED 52
COMP. GEN. 631 (1973). ALTHOUGH IT INTERPRETS 5 U.S.C. 5596, THIS CASE
DEALT WITH A FAILURE TO PROMOTE AN EMPLOYEE AND IS NOT DIRECTLY
RELEVANT.
THUS, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.
B-180857, AUG 27, 1974
HEADNOTES-UNAVAILABLE
1. SICK LEAVE OF EMPLOYEE OF UNITED STATES GEOLOGICAL SURVEY,
DEPARTMENT OF INTERIOR, WHO RESIGNED HIS POSITION TO ACCEPT EMPLOYMENT
WITH THE FOOD AND AGRICULTURAL ORGANIZATION OF THE UNITED NATIONS MAY
NOT BE RECREDITED UNDER PROVISIONS OF 5 U.S.C. 3582 GOVERNING RIGHTS OF
EMPLOYEES SERVING IN INTERNATIONAL ORGANIZATIONS WHEN HE WAS REEMPLOYED
BY THE GEOLOGICAL SURVEY MORE THAN 3 YEARS LATER SINCE HE WAS NOT
TRANSFERRED OR DETAILED TO THE INTERNATIONAL POSITION AND EXCEEDED THE
MAXIMUM 3 YEAR PERIOD OF SERVICE.
2. SICK LEAVE OF REEMPLOYED EMPLOYEE MAY NOT BE RECREDITED WHERE
SERVICE BREAK EXCEEDS 3 YEARS UNDER 5 CFR 630,502(B)(1).
RICHARD E. CORSO - RECREDIT OF PREVIOUS SICK LEAVE BALANCE ON
REEMPLOYMENT:
THIS MATTER INVOLVES A REQUEST FOR AN ADVANCE DECISION AS TO WHETHER
THE SICK LEAVE BALANCE AMOUNTING TO OVER 700 HOURS OF MR. RICHARD E.
CORSO, WHO WAS RECENTLY REEMPLOYED BY THE UNITED STATES GEOLOGICAL
SURVEY, DEPARTMENT OF THE INTERIOR, MAY BE RECREDITED TO HIS LEAVE
ACCOUNT.
IN EARLY 1970, THE FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED
NATIONS REQUESTED THE UNITED STATES GEOLOGICAL SURVEY TO TRANSFER MR.
CORSO TO THE UNITED NATIONS FOR A 3 YEAR TOUR OF DUTY UNDER PROVISIONS
OF 5 U.S.C. 3581 ET SEQ. THE UNITED STATES GEOLOGICAL SURVEY DENIED THE
REQUEST, WHEREUPON MR. CORSO RESIGNED HIS POSITION WITH THE FEDERAL
SERVICE ON MAY 8, 1970, AND ACCEPTED EMPLOYMENT WITH THE INTERNATIONAL
ORGANIZATION. ON JUNE 18, 1973, MR. CORSO WAS REEMPLOYED IN A POSITION
WITH THE UNITED STATES GEOLOGICAL SURVEY, COMPARABLE TO THE ONE FROM
WHICH HE RESIGNED OVER 3 YEARS EARLIER, AND NOW REQUESTS THAT
CONSIDERATION BE GIVEN TO RECREDITING HIS LEAVE ACCOUNT WITH THE SICK
LEAVE HE HAD ACCRUED DURING HIS PRIOR FEDERAL SERVICE IN VIEW OF THE
POLICY OF THE UNITED STATES GOVERNMENT TO ENCOURAGE FEDERAL EMPLOYEES TO
SERVE WITH INTERNATIONAL ORGANIZATIONS.
REEMPLOYMENT AFTER SERVICE WITH INTERNATIONAL ORGANIZATIONS SUCH AS
THE FOOD AND AGRICULTURE ORGANIZATION OF THE UNIED NATIONS IS GOVERNED
BY THE PROVISIONS OF 5 U.S.C. 3581 ET SEQ. IN THIS CONNECTION, SECTION
3582 PROVIDES IN PERTINENT PART AS FOLLOWS:
"SEC. 3582. RIGHTS OF TRANSFERRING EMPLOYEES
"(A) AN EMPLOYEE SERVING UNDER AN APPOINTMENT NOT LIMITED TO ! YEAR
OR LESS WHO TRANSFERS TO AN INTERNATIONAL ORGANIZATION WITH THE CONSENT
OF THE HEAD OF HIS AGENCY IS ENTITLED -
"(4) TO ELECT TO RETAIN TO HIS CREDIT ALL ACCUMULATED AND CURRENT
ACCRUED ANNUAL LEAVE TO WHICH ENTITLED AT THE TIME OF TRANSFER WHICH
WOULD OTHERWISE BE LIQUIDATED BY A LUMP-SUM PAYMENT. ON HIS REQUEST AT
ANY TIME BEFORE REEMPLOYMENT, HE SHALL BE PAID FOR THE ANNUAL LEAVE
RETAINED. IF HE RECEIVES A LUMP-SUM PAYMENT AND IS REEMPLOYED WITHIN 6
MONTHS AFTER TRANSFER, HE SHALL REFUND TO THE AGENCY THE AMOUNT OF THE
LUMP-SUM PAYMENT. THIS PARAGRAPH DOES NOT OPERATE TO CAUSE A FORFEITURE
OF RETAINED ANNUAL LEAVE FOLLOWING REEMPLOYMENT OR TO DEPRIVE AN
EMPLOYEE OF A LUMP-SUM PAYMENT TO WHICH HE WOULD OTHERWISE BE ENTITLED.
"(B) AN EMPLOYEE ENTITLED TO THE BENEFITS OF SUBSECTION (A) OF THIS
SECTION, EXCEPT A CONGRESSIONAL EMPLOYEE, IS ENTITLED TO BE REEMPLOYED
WITHIN 30 DAYS OF HIS APPLICATION FOR REEMPLOYMENT IN HIS FORMER
POSITION OR A POSITION OF LIKE SENIORITY, STATUS, AND PAY IN THE AGENCY
FROM WHICH HE TRANSFERRED, IF -
"(1) HE IS SEPARATED FROM THE INTERNATIONAL ORGANIZATION WITHIN 3
YEARS AFTER ENTERING ON DUTY WITH THE INTERNATIONAL ORGANIZATION OR
WITHIN SUCH SHORTER PERIOD AS MAY BE NAMED BY THE HEAD OF THE AGENCY AT
THE TIME OF CONSENT TO TRANSFER; AND
"(2) HE APPLIES FOR REEMPLOYMENT NOT LATER THAN 90 DAYS AFTER THE
SEPARATION.
"ON REEMPLOYMENT, HE IS ENTITLED TO THE RATE OF BASIC PAY TO WHICH HE
WOULD BE ENTITLED HAD HE REMAINED IN THE CIVIL SERVICE. ON
REEMPLOYMENT, THE AGENCY SHALL RESTORE HIS SICK LEAVE ACCOUNT, BY CREDIT
OR CHARGE, TO ITS STATUS AT THE TIME OF TRANSFER. THE PERIOD OF
SEPRATION CAUSED BY HIS EMPLOYMENT WITH THE INTERNATIONAL ORGANIZATION
AND THE PERIOD NECESSARY TO EFFECT REEMPLOYMENT ARE DEEMED CREDITABLE
SERVICE FOR ALL APPROPRIATE CIVIL SERVICE EMPLOYMENT PURPOSES.
"(C) THIS SECTION APPLIES ONLY WITH RESPECT TO SO MUCH OF A PERIOD OF
EMPLOYMENT WITH AN INTERNATIONAL ORGANIZATION AS DOES NOT EXCEED 3 YEARS
OR SUCH SHORTER PERIOD NAMED BY THE HEAD OF THE AGENCY AT THE TIME OF
CONSENT TO TRANSFER, ***."
THE ABOVE-QUOTED STATUTE HAS BEEN IMPLEMENTED BY REGULATIONS
PROMULGATED BY THE CIVIL SERVICE COMMISSION AS SET FORTH IN 5 CFR 352
SUBPART C. A REVIEW OF THE ABOVE-QUOTED STATUTE AND AFOREMENTIONED
REGULATION INDICATES THAT SICK LEAVE MAY BE RECREDITED ONLY TO A
REEMPLOYED EMPLOYEE WHO WAS DETAILED OR TRANSFERRED TO AN INTERNATIONAL
O[GANIZATION AND WHO SERVED WITH SUCH ORGANIZATIONS FOR A PERIOD NOT TO
EXCEED 3 YEARS.
THE RECORD SHOWS THAT MR. CORSO'S REQUEST FOR AN OFFICIAL 3 YEAR
TRANSFER TO THE INTERNATIONAL ORGANIZATION WITH MANDATORY REINSTATEMENT
RIGHTS WAS DENIED BY THE GEOLOGICAL SURVEY AND HE THEN RESIGNED AND
ACCEPTED INTERNATIONAL SERVICE INDEPENDENTLY. INASMUCH AS MR. CORSO WAS
NOT DETAILED OR TRANSFERRED TO THE INTERNATIONAL ORGANIZATION SO AS TO
COME WITHIN THE PURVIEW OF THE STATUTE AND INASUCH AS HE ALSO EXCEEDED
THE 3 YEAR LIMITATION ON EMPLOYMENT WITH SUCH ORGANIZATION, HIS SERVICE
WOULD NOT ENTITLE HIM TO THE RIGHTS AND BENEFITS ENUMBERATED IN 5 U.S.C.
3582, INCLUDING THE RESTORATION OF HIS SICK LEAVE ACCOUNT.
WE ALSO CONSIDERED THE APPLICABILITY OF THE GENERAL CIVIL SERVICE
COMMISSION REGULATIONS GOVERNING THE RECREDITING OF SICK LEAVE FOR
PERSONS REEMPLOYED IN THE FEDERAL SERVICE FOR A POSSIBLE SOURCE OF
RELIEF. THESE REGULATIONS ARE CONTAINED IN 5 CFR 630.502(B)(1) AND
PROVIDE:
"SEC. 630.502 SICK LEAVE RECREDIT.
"(B)(1) *** AN EMPLOYEE WHO IS SEPARATED FROM THE FEDERAL GOVERNMENT
OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS ENTITLED TO A RECREDIT
OF HIS SICK LEAVE IF HE IS REEMPLOYED IN THE FEDERAL GOVERNMENT OR THE
GOVERNMENT OF THE DISTRICT OF COLUMBIA, WITHOUT A BREAK IN SERVICE OF
MORE THAN 3 YEARS."
SINCE MR. CORSO'S BREAK IN SERVICE WAS FOR A PERIOD GREATER THAN 3
YEARS, HIS SICK LEAVE BALANCE MAY NOT BE RESTORED TO HIS LEAVE ACCOUNT
UNDER THIS PROVISION EITHER OR UNDER ANY OTHER AUTHORITY OF WHICH WE ARE
AWARE.
B-180870, AUG 27, 1974
HEADNOTES-UNAVAILABLE
1. WHERE EMPLOYEE SEPARATED IN REDUCTION IN FORCE ON AUGUST 21,
1973, DID NOT RECEIVE WITHIN GRADE BECAUSE HER ELIGIBILITY FOR SUCH
PROMOTION WAS DELAYED UNTIL SEPTEMBER 2, 1973, BY EXCESS USE OF LEAVE
WITHOUT PAY (LWOP), SHE MAY NOT HAVE ANNUAL LEAVE SUBSTITUTED FOR LWOP
FOR PURPOSE OF ACCELERATING EFFECTIVE DATE OF WITHIN-GRADE PROMOTION AND
INCREASING SEVERANCE PAY SINCE SHE HAD BEEN ADVISED OF CONSEQUENCES OF
USE OF EXCESS LWOP, AND ANNUAL LEAVE MAY BE SUBSTITUTED RETROACTIVELY
FOR LWOP WAS CHARGED AS RESULT OF MISTAKE OF LAW OR FACT.
2. WHERE EMPLOYEE, WHO RECEIVED NOTICE OF SEPARATION INCIDENT TO
REDUCTION IN FORCE, REQUESTED TO BE CARRIED IN LEAVE STATUS UNTIL
SEPTEMBER 30, 1973, LEAVE REQUEST WAS APPARENTLY LOST IN DEPARTMENTAL
MAIL, AND SHE WAS SEPARATED ON AUGUST 31, 1973, 2 DAYS BEFORE
ELIGIBILITY FOR WITHIN-GRADE PROMOTION AND THEREBY SUFFERED LOSS OF
SEVERANCE PAY, AGENCY MAY CHANGE SEPARATION DATE TO SEPTEMBER 30, 1973,
IF IT FINDS SEPARATION WAS NOT IN CONFORMANCE WITH AGENCY PRACTICE OR
REGULATIONS OR INTENT OF PARTIES WITH APPROPRIATE ADJUSTMENTS IN
LUMP-SUM ANNUAL LEAVE AND SEVERANCE PAY ACCOUNTS SINCE SUCH SEPARATION
MAY BE RESCINDED.
SEVERANCE PAY ENTITLEMENT OF EMPLOYEE SEPARATED INCIDENT TO REDUCTION
IN FORCE:
THIS DECISION CONCERNING THE SEVERANCE PAY ENTITLEMENT OF MRS.
DONNIE TIEMAN IS MADE UPON THE REQUEST OF THE AIR FORCE ACCOUNTING AND
FINANCE OFFICER, PETERSON FIELD, COLORADO. THE SUBMISSION STATES THAT
MRS. TIEMAN DID NOT BECOME ELIGIBLE FOR A WITHIN-GRADE PROMOTION PRIOR
TO HER SEPARATION BECAUSE OF EXCESSIVE USE OF LEAVE WITHOUT PAY AND ASKS
WHETHER ANNUAL LEAVE MAY BE SUBSTITUTED FOR 38 HOURS OF LEAVE WITHOUT
PAY SO THAT SHE MAY BE GRANTED A WITHIN-GRADE PROMOTION EFFECTIVE PRIOR
TO HER SEPARATION AND INCREASED SEVERANCE PAY.
BY LETTER DATED MAY 29, 1973, MRS. TIEMAN, AN EMPLOYEE OF THE 84TH
FIGHTER INTERCEPTOR SQUADRON, HAMILTON AIR FORCE BASE, CALIFORNIA, WAS
GIVEN AN OFFER TO ACCOMPANY THE TRANSFER OF FUNCTION OF THE SQUADRON TO
CASTLE AIR FORCE BASE, CALIFORNIA. HAVING DECLINED THE OFFER, SHE WAS
ULTIMATELY SEPARATED FROM THE ROLLS EFFECTIVE AUGUST 31, 1973, AS AN
EMPLOYEE AT GRADE 3, STEP 4, $6,740 PER ANNUM, AND WAS PAID $2,216.16
SEVERANCE PAY COMPUTED AT THAT RATE OF PAY. HAD SHE BEEN SEPARATED 2
DAYS LATER, OR HAD SHE TAKEN ANNUAL LEAVE RATHER THAN LEAVE WITHOUT PAY
FOR THE PERIOD FROM AUGUST 10 THROUGH AUGUST 17, MRS. TIEMAN WOULD HAVE
RECEIVED A WITHIN-GRADE PROMOTION TO GRADE 3, STEP 5, $6,944 PER ANNUM,
PRIOR TO SEPARATION AND WOULD HAVE BEEN ENTITLED TO ADDITIONAL SEVERANCE
PAY COMPUTED ON THE BASIS OF THAT HIGHER RATE OF PAY.
CONCERNING THE EFFECTIVE DATE OF HER PROPOSED SEPARATION, MRS.
TIEMAN WAS ADVISED BY NOTICE OF DECISION TO SEPARATE DATED JUNE 26,
1973, AS FOLLOWS:
"3. IN VIEW OF THE ABOVE, IT HAS BEEN DETERMINED THAT THE SEPARATION
ACTION IS FULLY SUPPORTED AND WARRANTED. THIS ACTION WILL BE EFFECTIVE
31 AUGUST 1973 UNLESS YOU REQUEST TO BE CARRIED IN A LEAVE WITHOUT PAY
OR ANNUAL LEAVE STATUS FOR 30 ADDITONAL DAYS. YOUR SEPARATION WILL THEN
BE EFFECTIVE UPON THE EXPIRATION OF YOUR LEAVE. SHOULD YOU ELECT TO
REQUEST LEAVE, PLEASE PREPARE AND SUBMIT AN SF 71, LEAVE APPLICATION, TO
YOUR SUPERVISOR FOR HIS APPROVAL AND FORWARDING TO THE CIVILIAN PAY
OFFICE."
ALTHOUGH WE WERE ADVISED THAT NO STANDARD FORM 71, APPLICATION FOR
LEAVE, WAS RECEIVED BY THE RESPONSIBLE CIVILIAN PAY OFFICE, MRS. TIEMAN
STATES THAT SHE DID IN FACT ELECT TO TAKE LEAVE AND TO REMAIN ON THE
ROLLS UNTIL SEPTEMBER 30. IN A LETTER DATED SEPTEMBER 18, 1973, SHE
REPORTS:
"ATTACHED IS A COPY OF LETTER RECEIVED BY ME, DATED 26 JUNE 1973,
INFORMING ME OF SEPARATION DATE EFFECTIVE 31 AUGUST, UNLESS I ELECTED TO
TAKE LEAVE AND/OR LEAVE WITHOUT PAY, AND REMAIN ON ROLLS AT HAMILTON AFT
UNTIL SEPTEMBER 30TH. THIS I DID ELECT TO DO (I TALKED TO MR. REINALDO
AND TO JIM SMOOT, TWO MEN FROM CIVILIAN PERSONNEL ASSIGNED TO HELP THOSE
OF US IN 84 FIGHTER INTERCEPTOR SQUADRON WHO RECEIVED RIF NOTICES).
THEY TOLD ME THAT IF I DO THIS, THEN I CANNOT APPLY FOR UNEMPLOYMENT
BENEFITS UNTIL AFTER 30 SEPTEMBER.
"THIS WAS TO MY ADVANTAGE, AS I HAD PLANNED A TRIP TO MY PARENTS IN
OREGON LATE IN SEPTEMBER ANYWAY. THEY DID ASSURE ME THAT WHILE ON LEAVE
I WOULD ACCUMULATE LEAVE ***. MR. SMOOT SAID IT WOULD ALSO BE ONE MORE
MONTH FOR WHICH I WOULD BE PAID SEVERANCE PAY ***. I ASKED MR. SMOOT IF
I SHOULD PERHAPS NOTIFY CIVILIAN PERSONNEL IN WRITING OF MAY REQUEST;
HE ASSURED ME THAT I HAD ONLY TO SUBMIT LEAVE REQUEST AS STATED IN
PARAGRAPH 3 OF THE LETTER.
"THIS I DID IMMEDIATELY UPON RETURN TO MY OFFICE. CMSGT YOHNER (MY
IMMEDIATE SUPERVISOR) TOLD ME CAPT SMIGELSKI WAS CONCERNED THAT THIS
MIGHT CAUSE A DELAY IN MY REPLACEMENT ***. I CALLED MR. REINALDO, WHO
TOLD ME TO ASSURE CAPT SMIGELSKI IT WOULD NOT. CAPT. SMIGELSKI, BEING
AN EXTREMELY CAUTIOUS INDIVIDUAL, THEN CALLED MR. SMOOT PERSONALLY, WHO
ASSURED HIM IT WAS ALL RIGHT. CAPT SMIGELSKI THEN APPROVED MY REQUEST
FOR LEAVE FOR MONTH OF SEPTEMBER, PLACED IT IN A 'THOUSAND MILER'
ENVELOPE, AND I PERSONALLY PLACED IT IN DISTRIBUTION, ADDRESSED AS NOTED
IN THE JUNE 26 LETTER."
MRS. TIEMAN REPORTS FURTHER THAT AT LEAST FOUR PEOPLE WERE AWARE OF
THE REQUEST FOR LEAVE AND THAT TWO SAW THE SIGNED APPROVAL. THE
ADMINISTRATIVE REPORT CONTAINS NO INFORMATION IN THIS REGARD OTHER THAN
THE STATEMENT THAT THERE IS NO STANDARD FORM 71, APPLICATION FOR LEAVE,
ON RECORD. HAD THE LEAVE REQUEST BEEN RECEIVED AND PROCESSED MRS.
TIEMAN WOULD HAVE BEEN SEPARATED ON SEPTEMBER 30, 1973, WELL AFTER THE
EFFECTIVE DATE OF HER WITHIN-GRADE INCREASE AS DEFERRED BY HER USE OF
LEAVE WITHOUT PAY DISCUSSED BELOW.
MRS. TIEMAN WOULD LIKEWISE HAVE BEEN ENTITLED TO COMPUTATION OF
SEVERANCE PAY BASED ON A WITHIN-GRADE INCREASE TO GRADE3, STEP 5, PRIOR
TO SEPARATION HAD SHE NOT USED AN EXCESSIVE AMOUNT OF LEAVE WITHOUT PAY.
AS TO CREDITABLE SERVICE FOR THE 104-WEEK WAITING PERIOD BETWEEN
WITHIN-GRADE INCREASES FROM STEP 4 TO STEP 5, 5 CFR 531.404(B) PROVIDES:
"(B) FOR A FULL-TIME EMPLOYEE, AND A NON-FULL-TIME EMPLOYEE WITH A
PREARRANGED REGULARLY SCHEDULED TOUR OF DUTY, TIME IN A NONPAY STATUS,
EXCEPT AS PROVIDED IN SEC. 531.405(B), IS CREDITABLE SERVICE IN THE
COMPUTATION OF A WAITING PERIOD WHEN IT DOES NOT EXCEED, IN THE
AGGREGATE:
"(1) TWO WORKWEEKS INT HE WAITING PERIOD FOR RATES 2, 3, AND 4:
"(2) FOUR WORKWEEKS INT HE WAITING PERIOD FOR RATES 5, 6, AND 7; AND
"(3) SIX WORKWEEKS INT HE WAITING PERIOD FOR RATES 8, 9, AND 10.
WHEN AN EMPLOYEE HAS TIME IN A NONPAY STATUS IN EXCESS THEREOF, HE
SHALL MAKE IT UP WITH CREDITABLE SERVICE BEFORE HIS NEXT WITHIN-GRADE
INCREASE IS EFFECTED.
"(C) LEAVE OF ABSENCE GRANTED TO AN EMPLOYEE BECAUSE OF AN INJURY FOR
WHICH COMPENSATION IS PAYABLE UNDER SUBCHAPTER I OF CHAPTER 81 OF TITLE
5, UNITED STATES CODE, IS CREDITABLE SERVICE IN THE COMPUTATION OF A
WAITING PERIOD."
HAD MRS. TIEMAN USED NO MORE THAN 160 HOURS OF LEAVE WITHOUT PAY
DURING THE 104-WEEK WAITING PERIOD FOR HER WITHIN-GRADE PROMOTION TO
STEP 5, SHE WOULD HAVE BECOME ENTITLED TO THE INCREASE ON AUGUST 18,
1973. HOWEVER, SHE USED 198 HOURS DURING THE 104-WEEK WAITING PERIOD,
INCLUDING 48 HOURS OF LEAVE WITHOUT PAY DURING THE PERIOD FROM AUGUST 10
THROUGH AUGUST 17. ALTHOUGH SHE MADE UP THE 38 HOURS OF EXCESS LEAVE
WITHOUT PAY WHILE IN A WORK STATUS FROM AUGUST 20 THORUGH AUGUST 24, HER
WITHIN-GRADE INCREASE COULD NOT BECOME EFFECTIVE UNTIL SETPEMBER 2,
1974, THE FIRST DAY OF THE NEXT PAY PERIOD.
WHILE THE DIRECTOR OF CIVILIAN PERSONNEL, HEADQUARTERS, AEROSPACE
DEFENSE COMMAND, FOUND THAT MRS. TIEMAN APPARENTLY HAD BEEN ERRONEOUSLY
ADVISED TO REQUEST LEAVE WITHOUT PAY DURING THE PERIOD FROM AUGUST 10
THROUGH AUGUST 17, WHEN SHE HAD SUFFICIENT ANNUAL LEAVE TO COVER THAT
PERIOD, AND RECOMMENDED THAT ANNUAL LEAVE BE SUBSTITUTED FOR LEAVE
WITHOUT PAY, THE ACCOUNTING AND FINANCE OFFICER FINDS NO BASIS TO
SUPPORT A FINDING OF ADMINISTRATIVE ERROR. HE CITES MRS. TIEMAN'S
STATEMENT IN HER LETTER OF SEPTEMBER 18, 1973, THAT SHE HERSELF MADE A
MISTAKE IN APPLYING FOR THIS PERIOD OF LEAVE WITHOUT PAY. THE RECORD
FURTHER REFLECTS THAT SHE HAD BEEN INFORMED BY THE CIVILIAN PAY OFFICE
WHEN SHE TOOK PRIOR PERIODS OF LEAVE WITHOUT PAY THAT AN EXCESSIVE USE
OF SUCH ABSENCES COULD DELAY THE EFFECTIVE DATE OF HER WITHIN-GRADE
INCREASE. IN VIEW OF THESE CIRCUMSTANCES, WE ARE PRESENTED THE
FOLLOWING QUESTIONS:
"A. IS IT PROPER TO ADJUST THE EMPLOYEE'S MAY AND LEAVE ACCOUNTS AS
STATED IN THE BASE COMMANDER'S DECISION DATED 14 DECEMBER 1973 (TO
PERMIT THE SUBSTITUTION OF ANNUAL LEAVE FOR LEAVE WITHOUT PAY) EVEN
THOUGH THE OCCURRENCE OF AN ADMINISTRATIVE ERROR CANNOT BE
SUBSTANTIATED?
"B. IF ANSWER TO 'A' ABOVE IS NEGATIVE, THEN IS IT PERMISSIBLE FOR A
SEPARATED EMPLOYEE TO REQUEST A SUBSTITUTION OF ANNUAL LEAVE FOR LWOP
PREVIOUSLY GRANTED FOR THE SOLE PURPOSE OF QUALIFYING FOR A WITHIN GRADE
INCREASE PRIOR TO SEPARATION? ***"
IN GENERAL AN EMPLOYEE, WHO APPLIES FOR AND IS GRANTED LEAVE WITHOUT
PAY AT A TIME WHEN HE HAS ANNUAL LEAVE TO HIS CREDIT OF WHICH HE HAS
KNOWLEDGE, MAY NOT BE PERMITTED TO CONVERT THAT LEAVE WITHOUT PAY TO
ANNUAL LEAVE. HOWEVER, WHERE LEAVE WITHOUT PAY IS CHARGED AS A RESULT
OF A MISTAKE OF FACT OR LAW, THE ACTION MAY BE CORRECTED TO THE EXTENT
OF SUBSTITUTING ANNUAL LEAVE TO THE CREDIT OF THE EMPLOYEE AT THE TIME
HE WAS CHARGED LEAVE WITHOUT PAY. 22 COMP. GEN. 178 (1942), 23 ID. 677,
688 (1944). WE CONCUR THAT THE RECORD DOES NOT CLEARLY INDICATE THAT
THERE WAS A MISTAKE SPECIFICALLY AS TO THE GRANTING OF LEAVE WITHOUT PAY
DURING THE PERIOD FROM AUGUST 10 THROUGH 17, GIVEN THE FACT THAT MRS.
TIEMAN HAD BEEN ADVISED OF THE CONSEQUENCE OF MAKING EXCESS USE OF LEAVE
WITHOUT PAY AND IN FACT INTENDED TO TAKE THE LEAVE WITHOUT PAY.
HOWEVER, THE RECORD IS UNCLEAR AS TO WHETHER THERE MIGHT NOT HAVE
BEEN A MISTAKE OF A MORE GENERAL CHARACTER AS TO MRS. TIEMAN'S
SEPARATION AND THE CONSEQUENCE THEREOF. WE REFER IN THIS REGARD TO THE
APPARENT LOSS OF HER LEAVE REQUEST IN THE DEPARTMENT MAIL OR MISHANDLING
OF THE REQUEST UPON DELIVERY. WE PRESUME THAT IF THAT REQUEST HAD BEEN
PROPERLY RECEIVED AND CONSIDERED IT WOULD HAVE BEEN GRANTED AS A MATTER
OF COURSE. IN THAT EVENT MRS. TIEMAN'S TAKING OF LEAVE WITHOUT PAY FOR
THE PERIOD FROM AUGUST 10 THROUGH 17 WOULD NOT HAVE HAD THE EFFECT OF
DELAYING HER WITHIN-GRADE INCREASE UNTIL A DATE LATER THAN THE DATE OF
HER SEPARATION. THUS, IF SHE WAS UNDER THE BELIEF THAT HER SEPARATION
DATE WAS TO BE EXTENDED PURSUANT TO HER LEAVE REQUEST AT THE TIME SHE
REQUESTED LEAVE WITHOUT PAY, IT IS DIFFICULT TO FIND THAT SHE INTENDED
THE CONSEQUENCE OF SEPARATION PRIOR TO THE EFFECTIVE DATE OF THE
INCREASE, NOTWITHSTANDING THAT SHE CLEARLY INTENDED THE TAKING OF THE
PARTICULAR PERIOD OF LEAVE WITHOUT PAY.
IN GENERAL, AN INDIVIDUAL IN DEALING WITH THE GOVERNMENT DOES NOT
BEAR THE RISK OF MISHANDLING OF CORRESPONDENCE IN THE GOVERNMENT MAILS
OR AT A GOVERNMENT INSTALLATION. 48 COMP. GEN. 765 (1969). MOREOVER,
AN EMPLOYING AGENCY BEARS AN OBLIGATION TO COUNSEL AND TO DEAL IN THE
MOST FORTHRIGHT OF MANNERS WITH EMPLOYEES WHO ARE INVOLVED IN A
REDUCTION IN FORCE. FEDERAL PERSONNEL MANUAL, CHAPTER 351, SUBCHAPTER
1-8.
ALTHOUGH WE FIND NO BASIS UPON WHICH ANNUAL LEAVE MAY BE SUBSTITUTED
FOR THE LEAVE WITHOUT PAY TAKEN BY MRS. TIEMAN, THERE IS FOR THE
AGENCY'S CONSIDERATION THE RULE THAT AN OTHERWISE ACCOMPLISHED
SEPARATION MAY BE RESCINDED IF IT IS NOT IN CONFORMANCE WITH ESTABLISHED
AGENCY PRACTICE OR REGULATIONS OR IF IT DOES NOT CONFORM WITH THE INTENT
OF THE PARTIES. IF UNDER THE PARTICULAR CIRCUMSTANCES HERE INVOLVED THE
AGENCY FINDS SUFFICIENT BASIS TO CONCLUDE THAT MRS. TIEMAN'S REQUEST
FOR LEAVE THROUGH SEPTEMBER 30, 1973, WAS SIGNED BY THE APPROPRIATE
SUPERVISOR AND THAT THE DEPARTMENT'S MAIL SYSTEM OR AGENCY ACTION OR
NONACTION RATHER THAN THE EMPLOYEE'S, IS THE DIRECT CAUSE OF THE FAILURE
TO GRANT THE PERIOD OF EXTENDED LEAVE WE WOULD HAVE NO OBJECTION TO THE
EXTENSION OF MRS. TIEMAN'S SEPARATION DATE THROUGH SEPTEMBER 30, WITH
COMMENSURATE ADJUSTMENTS IN HER LUMP-SUM LEAVE ACCOUNT, AND SEVERANCE
PAY.
B-181074, AUG 27, 1974
HEADNOTES-UNAVAILABLE
TRANSFERRED EMPLOYEE SEEKS REIMBURSEMENT OF REAL ESTATE EXPENSES
INCURRED INCIDENT TO PURCHASE OF HOME. HE OBTAINED MORTAGE FOR 95
PERCENT OF VALUE OF HOUSE AND WAS REQUIRED BY LENDING INSTITUTION TO
PURCHASE TITLE INSURANCE AND MORTGAGE GUARANTEE INSURANCE (MGIC). BANK,
WITHOUT INFORMING HIM OF OPTIONS, CHARGED HIM $190, $175 FOR OWNERS
INSURED TITLE AND $15 FOR MORTGAGEE'S INSURED TITLE. EMPLOYEE MAY BE
REIMBURSED $170 SINCE MORTGAGE INSURANCE POLICY IS ALLOWABLE UNDER
FEDERAL PROPERTY MANAGEMENT REGULATIONS (FPMR) 101-7, SECTION 2-6.2D AND
SUCH A POLCY WOULD HAVE COST THAT AMOUNT. HOWEVER, MGIC IS NOT
REIMBURSABLE SINCE IT IS SPECIFICALLY EXCLUDED UNDER FPMR 101-7, SECTION
2-6.2D.
WILLIAM E. HARRIS - REIMBURSEMENT OF REAL ESTATE EXPENSES:
THIS MATTER IS BEFORE US BASED UPON A REQUEST FOR AN ADVANCE DECISION
SUBMITTED BY AN AUTHORIZED CERTIFYING OFFICER, UNITED STATES DEPARTMENT
OF AGRICULTURE, NATIONAL FINANCE CENTER (NFC), NEW ORLEANS, LOUISIANA,
CONCERNING THE AUTHORITY TO REIMBURSE MR. WILLIAM E. HARRIS FOR CERTAIN
EXPENSES HE INCURRED WHEN HE PURCHASED A RESIDENCE INCIDENT TO A
TRANSFER.
IN ACCORDANCE WITH TRAVEL AUTHORIZATION NO. 16483388, DATED MARCH 16,
1973, MR. HARRIS, A DISTRICT CONSERVATIONIST WITH THE SOIL CONSERVATION
SERVICE, TRANSFERRED FROM FROST, TEXAS, TO JASPER, TEXAS.
INCIDENT TO THIS TRANSFER, MR. HARRIS PURCHASED A HOME IN JASPER AND
OBTAINED A MORTGAGE FROM THE JASPER FEDERAL SAVINGS AND LOAN ASSOCATION.
THE CLOSING APPARENTLY TOOK PLACE ON JUNE 26, 1973, INCIDENT THERETO A
STATEMENT WAS PREPARED BY THE LENDER WHICH WAS TITLED:
"NOTICE TO CUSTOMERS
REQUIRED BY FEDERAL LAW
FEDERAL RESERVE REGULATION Z
"REAL PROPERTY TRANSACTION-PURCHASE LOAN SECURED BY FIRST LIEN ON A
DWELLING."
INCLUDED IN THE ITEMS LISTED UNDER THE HEADING, "THERE IS A PREPAID
FINANCE CHARGE ON THIS TRANSACTION WHICH INCLUDES," WERE:
LOAN FEE $233.70
OWNER'S INSURED TITLE 175.00
MORTGAGEE'S INSURED TITLE 15.00
MGIC (MORTAGE GUARANTEE INSURANCE) 253.70
WHEN MR. HARRIS SUBMITTED HIS CLAIM FOR THE REIMBURSEMENT OF REAL
ESTATE EXPENSES, THE ABOVE ITEMS, EXCEPT THE "MORTAGEE'S INSURED TITLE"
AND THE "MGIC" CHARGE WERE INCLUDED. ON SEPTEMBER 6, 1973, MR. HARRIS
WAS ADVISED THAT REIMBURSEMENT FOR THE LOAN FEE OF $233.70 WAS
DISALLOWED IN ACCORD WITH FEDERAL TRAVEL REGULATIONS, FPMR 101-7,
SECTION 2-6.2D, SINCE IT WAS PART OF A FINANCE CHARGE UNDER REGULATION
Z. SUBSEQUENTLY, UPON RE-EXAMINATION OF THE VOUCHER, THE $175 CHARGE FOR
"OWNER'S INSURED TITLE," WAS ALSO DISALLOWED.
MR. HARRIS CONTENDS THAT THE "LOAN FEE" AND THE "OWNER'S INSURED
TITLE" ARE BOTH REIMBURSABLE. IN ADDITION, HE HAS ASSERTED THAT THE
$253.70 FEE FOR MGIC, WHICH WAS NOT INITIALLY CLAIMED, SHOULD ALSO BE
ALLOWED. APPARENTLY, MR. HARRIS AND THE NFC HAVE REACHED AGREEMENT ON
ALL OF THE OTHER PORTIONS OF HIS CLAIM, AND WE DO NOT QUESTION THEIR
CONCLUSIONS.
AT THE TIME MR. HARRIS PURCHASED HIS HOME, REIMBURSEMENT OF REAL
ESTATE EXPENSES WAS GOVERNED BY THE FEDERAL TRAVEL REGULATIONS, FPMR
101-7, MAY 1973, SECTION 2-6.2D PROVIDES, IN PERTINENT PART:
"*** THE COST OF A MORTGAGE TITLE POLICY PAID FOR BY THE EMPLOYEE ON
A RESIDENCE PURCHASED BY HIM IS REIMBURSABLE BUT COSTS OF OTHER TYPES OF
INSURANCE PAID FOR BY HIM, SUCH AS AN OWNER'S TITLE POLICY, A 'RECORD
TITLE' POLICY, MORTGAGE INSURANCE, AND INSURANCE AGAINST DAMAGE OR LOSS
OF PROPERTY, ARE NOT REIMBURSABLE ITEMS OF EXPENSE. *** NOTWITHSTANDING
THE ABOVE, NO FEE, COST, CHARGE, OR EXPENSE IS REIMBURSABLE WHICH IS
DETERMINED TO BE A PART OF THE FINANCE CHARGE UNDER THE TRUTH IN LENDING
ACT, TITLE I, PUBLIC LAW 90-321, AND REGULATION Z ISSUED PURSUANT
THERETO BY THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM.
PROPERTY TAXES AND OPERATING OR MAINTENANCE COSTS ALSO ARE NOT
REIMBURSABLE. ***"
REGULATION Z IS PUBLISHED AS 12 CFR PART 226. THE STANDARDS FOR
DETERMINING WHAT IS PART OF A FINANCE CHARGE ARE FOUND AT 12 CFR 226.4,
WHICH PROVIDES, IN PERTINENT PART:
"(A) GENERAL RULE. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, THE
AMOUNT OF THE FINANCE CHARGE IN CONNECTION WITH ANY TRANSACTION SHALL BE
DETERMINED AS THE SUM OF ALL CHARGES, PAYABLE DIRECTLY OR INDIRECTLY BY
THE CUSTOMER, AND IMPOSED DIRECTLY OR INDIRECTLY BY THE CREDITOR AS AN
INCIDENT TO OR AS A CONDITION OF THE EXTENSION OF CREDIT, WHETHER PAID
OR PAYABLE BY THE CUSTOMER, THE SELLER, OR ANY OTHER PERSON ON BEHALF OF
THE CUSTOMER TO THE CREDITOR OR TO A THIRD PARTY, INCLUDING ANY OF THE
FOLLOWING TYPES OF CHARGES:
"(2) SERVICE, TRANSACTION, ACTIVITY, OR CARRYING CHARGE.
"(3) LOAN FEE, POINTS, FINDER'S FEE, OR SIMILAR CHARGE.
"(E) EXCLUDABLE CHARGES, REAL PROPERTY TRANSACTIONS. THE FOLLOWING
CHARGES IN CONNECTION WITH ANY REAL PROPERTY TRANSACTION, PROVIDED THEY
ARE BONA FIDE, REASONABLE IN AMOUNT, AND NOT FOR THE PURPOSE OF
CIRCUMVENTION OR EVASION OF THIS PART, SHALL NOT BE INCLUDED IN THE
FINANCE CHARGE WITH RESPECT TO THAT TRANSACTION:
"(1) FEES OR PREMIUMS FOR TITLE EXAMINATION, ABSTRACT OF TITLE, TITLE
INSURANCE, OR SIMILAR PURPOSES AND FOR REQUIRED RELATED PROPERTY
SURVEYS.
"(2) FEES FOR PREPARATION OF DEEDS, SETTLEMENT STATEMENTS, OR OTHER
DOCUMENTS.
"(3) AMOUNTS REQUIRED TO BE PLACED OR PAID INTO AN ESCROW OR TRUSTEE
ACCOUNT FOR FUTURE PAYMENTS OF TAXES, INSURANCE, AND WATER, SEWER, AND
LAND RENTS.
"(4) FEES FOR NOTARIZING DEEDS AND OTHER DOCUMENTS.
"(5) APPRAISAL FEES.
"(6) CREDIT REPORTS."
THE $233.70 LOAN FEE IS SPECIFICALLY LISTED ON THE STATEMENT SIGNED
JUNE 26, 1970 (WHICH IS STATED TO BE REQUIRED BY FEDERAL LAW), AS A PART
OF THE FINANCE CHARGE UNDER REGULATION Z. IT ALSO FITS WITHIN THE
CLASSIFICATION SET OUT ABOVE AS A "SERVICE, TRANSACTION, OR CARRYING
CHARGE" OR AS A "LOAN FEE." IT IS NOT INCLUDED WITHIN THE ENUMERATED
EXCEPTIONS. CLEARLY, THE LOAN FEE OF $233.70 IS PART OF THE FINANCE
CHARGE WITHIN THE CONTEMPLATION OF REGULATION Z AND MR. HARRIS MAY NOT
BE REIMBURSED FOR THAT AMOUNT. SEE B-177632, MAY 18, 1973; B-177306,
JANUARY 2, 1973; B-175889, JUNE 19, 1972; AND B-178454, JUNE 19, 1973.
MR. HARRIS HAS ALSO ASSERTED THAT HE SHOULD BE REIMBURSED FOR THE
MGIC CHARGE OF $253.70. BY LETTER OF MARCH 1, 1974, NFC WAS ADVISED BY
THE JASPER FEDERAL SAVINGS AND LOAN ASSOCIATION THAT MR. HARRIS'
MORTGAGE WAS FOR 95 PERCENT OF THE APPRAISED VALUE, AND THAT, IN ALL
CASES WHERE THE MORTGAGE EXCEEDED 80 PERCENT, THE MORTGAGORS WERE
REQUIRED TO PURCHASE MGIC AND PAY PREMIUMS ON IT UNTIL SUCH TIME AS THE
MORTGAGE IS REDUCED TO THE 80 PERCENT LEVEL. IT IS OUR UNDERSTANDING
THAT MGIC INSURES THE MORTGAGEE AGAINST THE DEFAULT ON THE PART OF THE
MORTGAGOR. FPMR 101-7, SECTION 2-6.2D SPECIFICALLY STATES THAT AN
EMPLOYEE MAY NOT BE REIMBURSED FOR THE COST OF MORTGAGE INSURANCE. MGIC
IS MORTGAGE INSURANCE, AND MR. HARRIS MAY NOT BE REIMBURSED FOR ITS
COST. SEE B-170571, NOVEMBER 16, 1971, AND B-169204, DECEMBER 9, 1971.
MR. HARRIS HAS INSISTED THAT HE SHOULD BE REIMBURSED FOR THE COST OF
THE "OWNERS INSURED TITLE." IN THAT CONNECTION, THE MARCH 1, 1974 LETTER
FROM THE JASPER FEDERAL SAVINGS AND LOAN ASSOCIATION STATES:
"REGARDING THE TITLE INSURANCE, THIS IS REQUIRED ON ALL OF OUR LOANS.
THE CHARGE FOR MORTGAGEE'S TITLE INSURANCE WOULD HAVE BEEN $170.00,
COVERING ONLY THE AMOUNT OF OUR LOAN, HOWEVER SINCE MR. HARRIS'S LOAN
WAS A 95% LOAN AND IT WOULD ONLY COST $20.00 MORE FOR OWNER'S TITLE
INSURANCE WHICH WOULD ALSO COVER HIS EQUITY IN THE PROPERTY, WE CHARGED
HIM WITH AN OWNER'S INSURED TITLED OF $175.00, PLUS $15.00 FOR THE
MORTGAGEE'S TITLE."
ADDITIONALLY, IN A LETTER TO MR. HARRIS, DATED MARCH 12, 1974, FROM
THE CERTIFYING OFFICER, IT IS STATED THAT A REPRESENTATIVE OF THE LENDER
ADMITTED THAT THE LENDER PROBABLY HAD NOT INFORMED MR. HARRIS THAT HE
HAD A CHOICE AS TO WHAT TYPE OF TITLE INSURANCE HE COULD PURCHASE.
FPMR 101-7, SECTION 2-6.2D, STATES THAT AN EMPLOYEE MAY BE REIMBURSED
FOR THE COST OF A MORTGAGE TITLE POLICY. IF MR. HARRIS HAD CHOSEN TO
PURCHASE THE MORTGAGEE'S POLICY FOR $170, THERE WOULD BE NO QUESTION
CONCERNING HIS RIGHT TO REIMBURSEMENT. HOWEVER, HE WAS NOT GIVEN THAT
CHOICE. ALTHOUGH THE TITLE POLICY MR. HARRIS PURCHASED WAS DESIGNATED
AN OWNER'S TITLE POLICY AND PROTECTED HIS INTEREST AS WELL AS THE
MORTGAGEE, IT WAS REQUIRED BY THE LENDING INSTITUTION IN ORDER TO
PROTECT ITS INTEREST. ACCORDINGLY, MR. HARRIS SHOULD BE REIMBURSED FOR
THE AMOUNT THAT CAN BE ALLOCATED TO THE COST OF THE MORTGAGEE'S
PROTECTION, NO MATTER WHAT THE POLICY IS CALLED. SEE B-176663, FEBRUARY
20, 1973, AND B-176531, NOVEMBER 29, 1973. THEREFORE, MR. HARRIS SHOULD
BE REIMBURSED A TOTAL OF $170 FOR THE PURCHASE TITLE INSURANCE SINCE
THIS IS THE AMOUNT THE MORTGAGEE'S POLICY WOULD HAVE COST IF MR. HARRIS
HAD BEEN GIVEN THE OPTION TO PURCHASE IT SEPARATELY. SEE B-175716, JULY
5, 1972.
B-181620, AUG 27, 1974
HEADNOTES-UNAVAILABLE
CONTRACTOR WHOSE PRICE FOR PRINTING POSTERS WAS ALMOST 30 PERCENT
LOWER THAN NEXT LOW BID BECAUSE OF A DECIMAL POINT ERROR MADE IN
ESTIMATING COST OF PAPER FOR POSTERS MAY HAVE CONTRACT RESCINDED, SINCE
NO VALID AND BINDING CONTRACT IS CONSUMMATED WHERE CONTRACTING OFFICER
KNEW OR SHOULD HAVE KNOWN OF ERROR AND NEGLECTED TO VERIFY BID.
VALLEY OFFSET, INC.:
BY LETTER DATED JUNE 24, 1974, WITH ENCLOSURES, THE ASSOCIATE GENERAL
COUNSEL, UNITED STATES GOVERNMENT PRINTING OFFICE (GPO), RECOMMENDED
THAT PURCHASE ORDER NO. 58124, AWARDED ON APRIL 5, 1974, TO VALLEY
OFFSET, INC., FOR THE PRODUCTION OF 160,765 FIVE-COLOR POSTERS ENTITLED
"ARMED FORCES INSIGNIA POSTERS" PLUS FILM AND PROGRESSIVE PROOFS USED IN
PRINTING BE RESCINDED ON THE GROUND THAT ITS BID OF $10,097, WHICH WAS
ALMOST 30 PERCENT LESS THAN THE NEXT LOW BID, SHOULD HAVE PLACED THE
CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF A POTENTIAL ERROR IN BID
SUCH THAT CONFIRMATION SHOULD HAVE BEEN SOUGHT PRIOR TO AWARD.
ON APRIL 8, 1974, VALLEY ADVISED GPO THAT AN ERROR IN BID IN EXCESS
OF $9,000 HAD BEEN MADE. IT ASSERTED THAT IT MADE A DECIMAL POINT ERROR
WITH THE RESULT THAT THE COST OF PAPER WAS FIGURED AT $1,082 INSTEAD OF
$10,820. THE WORKSHEET FURNISHED BY VALLEY SHOWS THAT THE BID WAS
COMPUTED ON THE BASIS OF $1,082 FOR PAPER. A LETTER FROM VALLEY'S PAPER
SUPPLIER VERIFIES THAT THE HIGHER PRICE WAS QUOTED TO VALLEY.
OUR OFFICE HAS HELD THAT NO VALID AND BINDING CONTRACT IS CONSUMMATED
WHERE THE CONTRACTING OFFICER KNEW OR SHOULD HAVE KNOWN OF THE
PROBABILITY OF ERROR, BUT NEGLECTED TO TAKE THE PROPER STEPS TO VERIFY
THE BID. SEE B-179913, JANUARY 8, 1974.
ACCORDINGLY, WE AGREE WITH THE ADMINISTRATIVE RECOMMENDATION THAT THE
CONTRACT WITH VALLEY BE RESCINDED.
B-181825, AUG 27, 1974
HEADNOTES-UNAVAILABLE
ALTHOUGH EMPLOYEE RETIRED EFFECTIVE JUNE 30, 1973, FROM HIS POSITION
AS A SHIP'S PURSER WITH THE MILITARY SEALIFT COMMAND AND HAD NOTIFIED
HIS AGENCY OF HIS REQUEST FOR RETIREMENT ON JUNE 14, 1973, BUT IN FACT
DUE TO THE AGENCY'S INABILITY TO PROVIDE RELIEF AT PUSAN, SOUTH KOREA,
UNTIL JULY 25, 1973, SERVED UNDER A TEMPORARY APPOINTMENT EFFECTIVE JULY
1, 1973, IN HIS FORMER POSITION IS SUBJECT TO 5 U.S.C. 8344(A) WHICH
REQUIRES A DEDUCTION FROM HIS PAY EQUAL TO THE ANNUITY ALLOCABLE TO THE
PERIOD OF ACTUAL EMPLOYMENT INCLUDING SHORE LEAVE GRANTED BEFORE
TERMINATION OF THE TEMPORARY EMPLOYMENT ENDING AUGUST 14, 1973.
REEMPLOYED ANNUITANT - SALARY DEDUCTION:
THIS ACTION IS A REVIEW OF THE DISALLOWANCE BY OUR TRANSPORTATION AND
CLAIMS DIVISION OF THE CLAIM OF MR. JOHN J. KEENAN, A REEMPLOYED
ANNUITANT OF THE MILITARY SEALIFT COMMAND (MSC) FOR REFUND OF AN AMOUNT
EQUAL TO HIS RETIREMENT ANNUITY DEDUCTED FROM HIS PAY FOR THE PERIOD
FROM JULY 1, 1973 THROUGH AUGUST 14, 1973.
IN A LETTER DATED OCTOBER 16, 1973, TO THE GENERAL ACCOUNTING OFFICE
MR. KEENAN IN PERTINENT PART STATES:
"*** I COMPLETED MY FEDERAL SERVICE AS OF 30 JUNE 1973. AT THE TIME
OF MY RETIREMENT I WAS EMPLOYED AS A SHIP'S PURSER WITH THE MILITARY
SEALIFT COMMAND, ATLANTIC. THE VESSEL I WAS ON WAS AT SEA PRIOR TO 30
JUNE 1973 AND DID NOT ARRIVE IN PUSAN, SOUTH KOREA UNTIL 2 JULY 1973,
HENCE IT WAS NOT POSSIBLE FOR ME TO BE RELIEVED DURING THIS PERIOD.
COMSCLANT WAS NOTIFIED BY ME VIA MSG ON 14 JUNE 1973 OF MY REQUEST FOR
RETIREMENT UNDER H.R. 6077. ON 21 JUNE 1973 THEY INFORMED ME THAT I
WOULD BE RETAINED AS A TEMPORARY APPOINTMENT EFFECTIVE 1 JULY 1973 UNTIL
I COULD BE RELIEVED. UPON MY ARRIVAL IN PUSAN, COMSCO, PUSAN INFORMED
ME THAT NO RELIEF HAD ARRIVED. I FORWARDED A MSG TO COMSCLANT ON 10
JULY 1973 REQUESTING INFORMATION AND PROGRESS BEING MADE ON MY REQUEST
FOR RELIEF. ANOTHER MSG WAS RECEIVED FROM COMSCLANT ON 14 JULY 1973
INFORMING ME THAT A RELIEF WAS NOT FEASIBLE NOW BUT THAT I COULD RETURN
TO CONUS AT MY OWN EXPENSE. I REPLIED TO THEIR MSG, STATING THAT I
WOULD REPAT TO CONUS AT MY OWN EXPENSE. THIS MSG SENT ON 16 JULY 1973.
SO, AS NOT TO IN - CONVIENCE SHIP'S PERSONNEL I REMAINED ON BOARD AND
COMPLETED THE PAYROLL FOR THE PERIOD COVERING 1 JULY THRU 15 JULY 1973.
I WAS FINALLY RELIEVED ON 25 JULY 1973 IN PUSAN, SOUTH KOREA, FORTY-TWO
(42) DAYS AFTER COMSCLANT RECEIVED NOTICE OF MY REQUEST FOR RETIREMENT.
***"
MR. KEENAN CLAIMED $821.43 REPRESENTING $466.70 DEDUCTED FROM HIS
BASE PAY FOR THE PERIOD JULY 1-25, 1973, AND $354.73 DEDUCTED FROM HIS
BASE PAY FOR THE PERIOD FROM JULY 26 TO AUGUST 14, 1973, REPRESENTING
PAYMENT FOR 19 DAYS OF SHORE LEAVE ACCUMULATED FROM DECEMBER 28, 1972
THROUGH JULY 25, 1973.
MR. KEENAN URGES THAT SINCE HE WAS RETAINED ON DUTY IN WHAT HE
CONSIDERS AN INVOLUNTARY STATUS AND THAT HIS AGENCY HAD AMPLE TIME TO
PROVIDE HIM RELIEF OR SHOULD HAVE NOTIFIED HIM SOONER THAT HE COULD HAVE
RETURNED TO THE UNITED STATES AT HIS OWN EXPENSE WITHOUT WAITING FOR
RELIEF HE SHOULD NOT BE PENALIZED BY THE DEDUCTIONS INDICATED ABOVE.
MR. KEENAN REQUESTS A WAIVER OF THE STATUTORY PROVISIONS - 5 U.S.C.
8344(A) - WHICH REQUIRED THE SUBJECT DEDUCTIONS.
THE RECORD BEFORE US SHOWS THAT MR. KEENAN'S VOLUNTARY RETIREMENT
EFFECTIVE JUNE 30, 1973, RESULTED IN HIS ENTITLEMENT TO RETIREMENT
ANNUITY EFFECTIVE JULY 1, 1973, AND COMPUTED BY THE CIVIL SERVICE
COMMISSION TO BE $559 MONTH. HE RECEIVED A TEMPORARY APPOINTMENT AS A
PURSER, HIS FORMER POSITION, AND SERVED AS INDICATED IN HIS STATEMENT
QUOTED ABOVE UNTIL JULY 25, 1973, AND HIS AGENCY CARRIED HIM IN A PAY
STATUS FROM JULY 26 TO AUGUST 14, 1973, IN ORDER TO AVOID FORFEITURE OF
HIS SHORE LEAVE AS OF JUNE 30, 1973. IN THIS CONNECTION 5 U.S.C. 6305
WHICH PROVIDES THE AUTHORITY FOR THE SUBJECT SHORE LEAVE PRECLUDES ITS
USE AS A BASIS FOR TERMINAL LEAVE OR LUMP-SUM PAYMENT THEREFORE THE
AMOUNT OF SUCH LEAVE UNUSED BEFORE JUNE 30, 1973, WOULD HAVE BEEN
FORFEITED UPON MR. KEENAN'S RETIREMENT HAD HE NOT BEEN REEMPLOYED AS AN
ANNUITANT. SEE 5 CFR 630.604(F).
ADDITIONALLY HAD MR. KEENAN'S RETIREMENT NOT BEEN EFFECTED BY JULY 1,
1973, HE WOULD NOT HAVE BEEN ENTITLED TO HAVE HIS ANNUITY INCREASED BY
THE COST OF LIVING INCREASE GRANTED TO ANNUITANTS ON THE RETIRED ROLLS
AS OF THAT DATE. ALTHOUGH IN SUCH CASE HIS BASIC PAY AFTER JULY 31
WOULD NOT HAVE BEEN REDUCED BY THE AMOUNT OF HIS ANNUITY, THERE IS,
HOWEVER, NO NET MONEY LOSS TO HIM SINCE HIS PAY WOULD HAVE ONLY EQUALED
WHAT HE RECEIVED IN FACT FOR THE PERIOD IN QUESTION, I.E., HIS ANNUITY
PLUS THE AMOUNT OF PAY IN EXCESS THEREOF. IN THE CIRCUMSTANCES THE
ISSUE RAISED IS WITHOUT MERIT.
AS POINTED OUT IN THE SETTLEMENT CERTIFICATE DATED JUNE 11, 1974,
WHICH DENIED MR. KEENAN'S CLAIM, ISSUED BY OUR TRANSPORTATION AND CLAIMS
DIVISION, THE PROVISIONS OF 5 U.S.C. 8344(A) - WHICH REQUIRES A
DEDUCTION FROM HIS PAY EQUAL TO THE ANNUITY ALLOCABLE TO THE PERIOD OF
ACTUAL EMPLOYMENT - ARE MANDATORY, THE AGENCY METHOD IN REDUCING HIS PAY
FOR THE SUBJECT PERIOD WAS PROPER, AND THIS OFFICE IS WITHOUT AUTHORITY
TO WAIVE APPLICATION OF SUCH STATUTORY PROVISIONS. THE DISALLOWANCE
ACTION IS THEREFORE SUSTAINED.
B-181883, AUG 27, 1974
HEADNOTES-UNAVAILABLE
WHERE PROTESTER ALLEGES THAT LOW BIDDER IS NONRESPONSIBLE DUE TO
DIFFICULTIES IN PERFORMING PREVIOUS GOVERNMENT CONTRACTS, PROTEST WILL
NOT BE CONSIDERED SINCE CONTRACTING OFFICER DETERMINED THAT LOW BIDDER
WAS RESPONSIBLE AND GAO HAS DISCONTINUED PRACTICE OF REVIEWING BID
PROTESTS OF CONTRACTING OFFICER'S AFFIRMATIVE RESPONSIBILITY
DETERMINATIONS, EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE
TANTAMOUNT TO FRAUD. SEE 53 COMP. GEN. ___, B-177512, JUNE 7, 1974.
WALDMAN MANUFACTURING COMPANY:
BY LETTER OF JULY 21, 1974, WALDMAN MANUFACTURING COMPANY (WALDMAN)
PROTESTS AGAINST THE AWARD OF ANY CONTRACTS TO PROPPER INTERNATIONAL,
INC. (PROPPER), LOW BIDDER UNDER SOLICITATION NOS. DSA100-74-B-1481 AND
DSA100-74-B-1595, ISSUED BY DEFENSE SUPPLY AGENCY (DSA). WALDMAN
CONTENDS THAT DUE TO ALLEGED DIFFICULTIES IN PERFORMING PAST GOVERNMENT
CONTRACTS, PROPPER SHOULD BE DETERMINED NONRESPONSIBLE AND INELIGIBLE TO
RECEIVE AWARDS UNDER THE ABOVE SOLICITATIONS.
WE HAVE BEEN ADVISED THAT PROPPER WAS DETERMINED TO BE A RESPONSIBLE
PROSPECTIVE CONTRACTOR UNDER BOTH OF THE ABOVE SOLICITATIONS ON AUGUST
9, 1974.
THIS OFFICE HAD DISCONTINUED ITS PRIOR PRACTICE OF REVIEWING PROTESTS
INVOLVING A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF
RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR. SEE 53 COMP. GEN. ___,
B-177512, JUNE 7, 1974. THE DETERMINATION OF A PROPOSED CONTRACTOR'S
RESPONSIBILITY IS LARGELY WITHIN THE DISCRETION OF THE CONTRACTING
OFFICER. THE CONTRACTING ACTIVITY MUST HANDLE THE DAY-TO-DAY
ADMINISTRATION OF THE CONTRACT AND BEAR THE BRUNT OF ANY DIFFICULTIES
EXPERIENCED BY REASON OF THE CONTRACTOR'S LACK OF ABILITY. IF PURSUANT
TO THE APPLICABLE REGULATIONS THE CONTRACTING OFFICER FINDS THE PROPOSED
CONTRACTOR RESPONSIBLE, WE DO NOT BELIEVE THE FINDING SHOULD BE
DISTURBED EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT
TO FRAUD.
ACCORDINGLY, AS NO FRAUD HAS BEEN ALLEGED OR DEMONSTRATED, WE MUST
DECLINE TO FURTHER CONSIDER THE MATTER.
B-173590, AUG 26, 1974
HEADNOTES-UNAVAILABLE
1. AGENCY'S PROPOSED MODIFICATION OF TIMBER SALE CONTRACT IS LEGALLY
ALLOWABLE BECAUSE PORTION CALLING FOR INCREASED THINNING OF TREES BY
CONTRACTOR WOULD RESULT IN GOVERNMENT RECEIVING BENEFIT IN RETURN -
REMUNERATION FOR EXTRA PULPWOOD SOLD.
2. GAO, WHILE FINDING THAT LEGAL CONSIDERATION DOES EXIST FOR
PROPOSED MODIFICATION OF TIMBER SALE CONTRACT, QUESTIONS MAGNITUDE OF
BENEFIT TO GOVERNMENT FROM EXTRA PULPWOOD THINNING WHEN WEIGHED AGAINST
THE PROBABLE COSTS TO GOVERNMENT OF BINDING ITSELF TO SELL CERTAIN
TIMBER FOR PULP WHEN SAME TIMBER HAS POTENTIALLY HIGHER VALUE AS SAW
TIMBER. GAO THEREFORE SUGGESTS THAT FOREST SERVICE REEXAMINE
ADVISABILITY OF ENTERING INTO MODIFICATION.
SOUTHWEST LUMBER MILLS, INC. (REQUEST FOR ADVANCE DECISION BY
SECRETARY OF AGRICULTURE):
THE COLORADO PLATEAU PULP TIMBER SALE WAS PURCHASED BY SOUTHWEST
LUMBER MILLS, INC. (NOW KNOWN AS SOUTHWEST FOREST INDUSTRIES, INC.)
(SOUTHWEST), IN 1959 (PRELIMINARY AWARD WAS 1957).
THE TIMBER SALE, SCHEDULED TO TERMINATE IN MARCH OF 1989, INCLUDED AN
ESTIMATED 6 MILLION CORDS OF PULPWOOD IN A NUMBER OF NATIONAL FORESTS IN
THE COLORADO PLATEAU REGION. UNDER THE TERMS OF THE CONTRACT SOUTHWEST
WAS REQUIRED TO BUILD AND OPERATE A PULPMILL, WHICH IT HAS DONE.
THE TIMBER SOLD BY THE GOVERNMENT TO SOUTHWEST WAS INTENDED TO BE
TAKEN BY THINNING EXISTING TIMBER STANDS. THESE THINNINGS, IT WAS
HOPED, WOULD (1) OPTIMIZE THE GROWTH OF POLE SIZE STANDS BY REMOVING
EXCESS, DISEASED AND/OR INFESTED TREES, AND (2) PROVIDE RAW MATERIAL FOR
THE PULPMILL.
SECTION 3B-1 OF THE CONTRACT STATES THAT:
"LIVE OR DEAD TREES WILL BE DESIGNATED FOR CUTTING WHICH ARE
MERCHANTABLE FOR PULPWOOD BUT WHICH DO NOT HAVE A HIGHER STUMPAGE VALUE
FOR SAWLOGS OR POLES AND WHICH EITHER (1) ARE INFESTED WITH INSECTS,
HEAVILY INFECTED WITH MISTLETOE OR OTHERWISE OF POOR RISK, OR (2) SHOULD
BE REMOVED TO ACCOMPLISH THINNING TO IMPROVE THE GROWTH AND QUALITY OF
THE RESIDUAL GROWING STOCK. THE OBJECTIVE OF THINNING WILL BE TO LEAVE
A GOOD THRIFTY STAND AS WELL SPACED AS POSSIBLE WITH AT LEAST 80 SQUARE
FEET OF BASAL AREA PER ACRE IN THE PINE TYPE AND 90 SQUARE FEET OF BASAL
AREA PER ACRE IN THE SPRUCE AND MIXED CONIFER TYPES."
THE AGENCY HAS CONCLUDED THAT THE RELATIVE STUMPAGE VALUES (PULPWOOD
V. SAWLOGS OR POLES) WAS TO BE REDETERMINED EVERY 5 YEARS. IN VIEW OF
THE TREMENDOUS RECENT YEAR INCREASES IN THE VALUE OF LUMBER PRODUCING
SAWLOGS, THE MOST RECENT VALUE DETERMINATION (1968) STATED THAT THOSE
TREES WITH A DIAMETER BREAST HIGH (DBH) (4.5 FEET ABOVE THE GROUND) OF
12 TO 16 INCHES, WHICH HAD PREVIOUSLY BEEN DESIGNATED FOR PULPWOOD, WERE
NOW TO BE SOLD AS SAWLOGS.
THIS NEW DESIGNATION SERIOUSLY RESTRICTED SOUTHWEST'S SUPPLY OF RAW
MATERIAL FOR ITS GROUNDWOOD (NEWSPRINT) OPERATIONS.
THE AGENCY HAS PROPOSED A MODIFICATION TO THE CONTRACT WHICH
ESSENTIALLY WOULD PROTECT SOUTHWEST'S PRIME SOURCE OF RAW MATERIAL FROM
FURTHER REDUCTION. THE PROPOSED MODIFICATION WOULD ELIMINATE ANY
COMPARABLE CONSIDERATION OF THE VALUE (PULPWOOD V. SAWLOGS OR POLES) OF
TREES UNDER 12-INCH DBH. THE ONLY CRITERIA WHICH WOULD BE UTILIZED IN
DESIGNATING SUCH TREES FOR PULPWOOD WOULD BE:
(1) THAT THE TREES BE REMOVED TO LEAVE ROOM FOR REMAINING TREES, OR
(2) THAT THE TREES BE INFESTED, OR
(3) THAT THE TREES BE OTHERWISE POOR RISKS.
MOREOVER, THE PROPOSED MODIFICATION WOULD ELIMINATE A PROVISION
GOVERNING THE MINIMUM VOLUME OF TREES WHICH MUST BE LEFT STANDING AFTER
THINNING OPERATIONS (THIS IS A SO-CALLED DECREASE IN BASAL AREA). THIS
CHANGE WOULD PERMIT THE CONTRACTOR TO CUT MORE TREES IN A GIVEN AREA
THAN WERE ORIGINALLY PROVIDED FOR UNDER THE CONTRACT, THUS INCREASING
SOUTHWEST'S PULPWOOD SUPPLY.
WE BELIEVE THAT THE PROPOSED MODIFICATION IS SUPPORTED BY LEGAL
CONSIDERATION SINCE THE GOVERNMENT WILL RECEIVE A TANGIBLE BENEFIT IN
RETURN FOR THE DECREASE IN BASAL AREA (INCREASING THINNING) IN THE FORM
OF CONTRACT PAYMENTS FOR ADDITIONAL PULPWOOD HARVESTED. HENCE, FROM A
STRICT LEGAL STANDPOINT, WE CANNOT OBJECT TO THE PROPOSED MODIFICATION.
HOWEVER, WHETHER THIS INCREASED THINNING WILL RESULT IN A LONG-RUN
MAXIMIZATION OF BENEFITS TO THE GOVERNMENT IS PROBLEMATICAL AND IS A
QUESTION ULTIMATELY GOING TO THE PROPER MANAGEMENT OF THE NATIONAL
FORESTS INVOLVED. A QUESTION MAY BE RAISED REGARDING THE MAGNITUDE OF
THE BENEFITS TO BE RECEIVED (REMUNERATION FROM ANY EXTRA PULPWOOD
HARVESTING AND A MAXIMIZATION OF TOTAL FOREST YIELD THROUGH IMPROVEMENT
OF TIMBER STANDS BY PROPER THINNING) WHEN WEIGHED AGAINST THE PROBABLE
COSTS TO THE GOVERNMENT, BOTH MONETARY AND OTHERWISE, OF BINDING ITSELF
UNTIL 1989 TO SELL TIMBER UNDER 12 INCHES IN DIAMETER AS PULPWOOD TO BE
MADE INTO PAPER PRODUCTS SINCE IT MAY BE SUBSTANTIALLY MORE BENEFICIAL
TO HARVEST SUCH TIMBER AT POTENTIALLY HIGHER PRICES AS NEW TIMBER.
WE THEREFORE SUGGEST THAT THE FOREST SERVICE REEXAINE, NOT ONLY THE
BARE LEGALITY OF THE PROPOSED ACTION, BUT ALSO THE ADVISABILITY, FROM A
LONG-RANGE POLICY STANDPOINT, OF EXECUTING THE MODIFICATION.
B-180378, AUG 26, 1974
HEADNOTES-UNAVAILABLE
WHERE APPROPRIATE ORDER - ISSUING AUTHORITY WAS UNAWARE OF A MEMBER'S
PHYSICAL CONDITION PRIOR TO THE EFFECTIVE DATE OF SEPARATION DUE TO
MISPLACED MEDICAL REPORTS, WHICH CONDITION REQUIRED IMMEDIATE AND
EXTENDED HOSPITALIZATION, AND ACTION WAS TAKEN TO REVOKE THOSE ORDERS
WITHIN A SHORT PERIOD OF TIME THEREAFTER, SUCH FACTS COMPRISE SUFFICIENT
AND SUBSTANTIAL NEW EVIDENCE TO SUPPORT THE REVOCATION OF THE FIRST
SEPARATION ORDERS SUBSEQUENT TO THEIR EFFECTIVE DATE, THEREBY ENABLING
THE MEMBER TO BE RETAINED ON ACTIVE DUTY FOR MEDICAL TREATMENT BEYOND
THE ORIGINAL DATE OF SEPARATION.
ENTITLEMENT TO PAY AND ALLOWANCES INCIDENT TO RETIREMENT - FIRST
LIEUTENANT CYNTHIA O. BLITCH.:
THIS ACTION IS IN RESPONSE TO A LETTER DATED SEPTEMBER 5, 1973 (FILE
REFERENCE AFZH-CTF), FROM LIEUTENANT COLONEL R. M. CAETANO, USA, FINANCE
AND ACCOUNTING OFFICER, HEADQUARTERS, 9TH INFANTRY DIVISION AND FORT
LEWIS, FORT LEWIS, WASHINGTON, REQUESTING AN ADVANCE DECISION AS TO THE
PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $1,109.48, IN
THE CASE OF FIRST LIEUTENANT CYNTHIA O. BLITCH, REPRESENTING PAY AND
ALLOWANCES FOR THE PERIOD AUGUST 18-31, 1973. IN ADDITION TO THAT
VOUCHER, THREE OTHER VOUCHERS WERE INCLUDED COVERING THE PERIODS
SEPTEMBER 1-30; OCTOBER 1-31; AND NOVEMBER 1-4, 1973, IN THE AMOUNTS
OF $216.68, $1,088.55 AND $2,385.61, RESPECTIVELY, AND HAS BEEN ASSIGNED
CONTROL NO. DO-A-1215 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND
ALLOWANCE COMMITTEE.
THE SUBMISSION STATES THAT ON AUGUST 8, 1973, FINAL PAYMENT OF PAY
AND ALLOWANCES WAS MADE TO THE MEMBER FOR THE PERIOD AUGUST 1-17, 1973,
BASED UPON SEPARATION ORDERS DATED JULY 24, 1973, EFFECTIVE AUGUST 17,
1973. THE MEMBER WAS PRESENT FOR DUTY AT MADIGAN ARMY MEDICAL CENTER,
TACOMA, WASHINGTON, FROM AUGUST 9-13, 1973, AND APPARENTLY BEGAN
CLEARING THAT COMMAND ON AUGUST 14, 1973, BUT A DELAY IN THE COMPLETION
OF HER SEPARATION PROCESSING WAS ENCOUNTERED DUE TO HER MISSING PHYSICAL
EXAMINATION FORMS WHICH WERE NOT DISCOVERED UNTIL AUGUST 19, 1973, AT
THE MADIGAN ARMY MEDICAL CENTER. UPON DISCOVERY, THE REPORT APPARENTLY
SHOWED THAT HER FINAL PHYSICAL EXAMINATION WAS FOUND TO BE ABNORMAL AND
FURTHER EXAMINATION, OBSERVATION AND POSSIBLE TREATMENT WERE INDICATED.
SHE WAS HOSPITALIZED IMMEDIATELY AND REMAINED IN A PATIENT STATUS AT
THE ARMY MEDICAL CENTER UNTIL OCTOBER 30, 1973.
FOLLOWING THE MEMBER'S HOSPITALIZATION, REVOCATION ORDERS WERE ISSUED
ON AUGUST 27, 1973 (10 DAYS AFTER THE EFFECTIVE DATE OF SEPARATION), AND
THE MEMBER WAS RETAINED ON ACTIVE DUTY IN A MEDICAL HOLD STATUS FOR
TREATMENT OF HER MEDICAL PROBLEM. UPON BEING RELEASED FROM THE HOSPITAL
AND REASSIGNED TO THE UNITED STATES ARMY FORT LEWIS TRANSFER POINT FOR
SEPARATION PROCESSING, BY ORDERS DATED OCTOBER 30, 1973, SHE WAS
RELEASED FROM ACTIVE DUTY EFFECTIVE NOVEMBER 4, 1973.
THE DISBURSING OFFICER QUESTIONS THE EFFECTIVENESS OF REVOCATION
ORDERS WHICH RETROACTIVELY CANCEL THE MEMBER'S AUGUST 17 SEPARATION AND
EXPRESSES DOUBT AS TO THE VALIDITY OF TE PAYMENT FOR THE PERIOD AUGUST
18-31, 1973.
THE GENERAL RULE PERTAINING TO THE EFFECTIVENESS OF RETIREMENT OR
SEPARATION ORDERS IS THAT WHEN A MEMBER OF THE UNIFORMED SERVICES IS
RETIRED OR SEPARATED AND TERMINATION OF HIS ACTIVE DUTY STATUS HAS
BECOME LEGALLY ACCOMPLISHED, SUCH ORDERS CANNOT BE REVOKED IN THE
ABSENCE OF FRAUD, SUBSTANTIAL NEW EVIDENCE, MISTAKE OF LAW, OR
MATHEMATICAL MISCALCULATION.
IN OUR DECISION 40 COMP. GEN. 419 (1961), WHICH DEALT WITH THE CASES
OF THREE MEMBERS, EACH OF WHICH INVOLVED THE DISCOVERY OF A PHYSICAL
DISABILITY AFTER INITIAL RETIREMENT ORDERS WERE ISSUED, BUT BEFORE
ACTUAL RETIREMENT, WHICH SERVED AS A BASIS FOR A CHANGE IN THE MEMBER'S
RETIREMENT, IT WAS DETERMINED THAT THE SUBSTANTIAL NEW EVIDENCE RULE HAD
BEEN MET THEREBY AUTHORIZING REVOCATION OF THE INITIAL RETIREMENT ORDER
IN EACH CASE, SINCE THERE WAS PROMPT NOTIFICATION BY THE APPROPRIATE
MEDICAL AUTHORITIES TO THE ADJUTANT GENERAL'S OFFICE UPON DISCOVERY OF
THE CONDITION, AND THE REVOCATION ACTION TAKEN FOLLOWING RECEIPT OF THE
INFORMATION WHICH COMPRISED THE NEW EVIDENCE WAS REASONABLY
CONTEMPORANEOUS WITH THE EFFECTIVE DATE OF THE RETIREMENT ORDERS.
SUBSEQUENTLY, IN OUR DECISION, 46 COMP. GEN. 671 (1967), WE RULED
THAT IN ORDER TO ESTABLISH A PROPER BASIS FOR THE APPLICATION OF THE
SUBSTANTIAL NEW EVIDENCE RULE, PROMPT ADMINISTRATIVE ACTION TO REVOKE OR
MODIFY SUCH ORDERS MUST BE TAKEN EITHER CONTEMPORANEOUSLY OR WITHIN A
SHORT PERIOD OF TIME FOLLOWING THE EFFECTIVE DATE OF RETIREMENT.
IN 52 COMP. GEN. 797 (1973), WE HELD THAT THAT WHICH CONSTITUTES A
SHORT PERIOD OF TIME FOR THE PURPOSE OF APPLYING THE SUBSTANTIAL NEW
EVIDENCE RULE IS NOT READILY SUSCEPTIBLE OF A PRECISE DEFINITION, AND
THAT SUCH CONCEPT TURNS LARGELY ON THE FACTS IN EACH CASE. WE STATED
THEREIN THAT THERE ARE TWO ASPECTS WHICH MUST BE CONSIDERED IN SUCH
MATTERS. THEY ARE, (1) THE PROMPT AND TIMELY ACTION OF APPROPRIATE
MEDICAL AUTHORITIES IN NOTIFYING THE ORDER-ISSUING AUTHORITY AND (2) THE
PROMPT AND TIMELY ACTION BY THE ORDER - ISSUING AUTHORITY TO REVOKE OR
OTHERWISE MODIFY THE MEMBER'S RETIREMENT ORDERS FOLLOWING RECEIPT OF THE
INFORMATION.
THUS, IN CASES WHERE VIRTUALLY NO DELAY EXISTS IN EITHER THE
NOTIFICATION BY THE APPROPRIATE MEDICAL AUTHORITIES TO THE ORDER -
ISSUING AUTHORITY FROM THE TIME THE MEMBER WAS HOSPITALIZED OR IN THE
ADMINISTRATIVE ACTION TO REVOKE THE INITIAL RETIREMENT ORDERS
THEREAFTER, WE VIEW SUCH PROCEDURES AS APPROPRIATELY CONSTITUTING A
SHORT PERIOD OF TIME.
IN THE PRESENT CASE, THE MEMBER'S EFFECTIVE SEPARATION DATE WAS TO
HAVE BEEN AUGUST 17, 1973, HOWEVER, IT WAS NOT DISCOVERED THAT SHE HAD
FAILED TO PASS HER FINAL TYPE PHYSICAL EXAMINATION UNTIL AUGUST 19,
1973. DUE TO THE NATURE OF HER DISORDER, IT WOULD APPEAR THAT HAD THE
FACT THAT SHE FAILED TO PASS HER PHYSICAL EXAMINATION BECOME KNOWN PRIOR
TO THE EFFECTIVE DATE OF HER SEPARATION, THERE IS LITTLE DOUBT THAT HER
SEPARATION ORDERS WOULD HAVE BEEN TIMELY REVOKED.
IT IS OUR VIEW, THEREFORE, THAT BASED ON THE RECORD BEFORE US, THE
ACTION TAKEN TO REVOKE THE MEMBER'S SEPARATION ORDERS WITHIN 10 DAYS
AFTER THEIR EFFECTIVE DATE, AND RETAINING HER ON ACTIVE DUTY IN A
MEDICAL HOLD STATUS FOR TREATMENT OF HER MEDICAL PROBLEM, UNTIL NOVEMBER
4, 1973, SHOULD NOT BE QUESTIONED FURTHER.
ACCORDINGLY, PAYMENT MAY BE MADE ON THE VOUCHERS ENCLOSED WITH THE
SUBMISSION, IF OTHERWISE CORRECT.
B-148044, AUG 23, 1974
HEADNOTES-UNAVAILABLE
HOMEOWNER WHOSE PROPERTY IS ACQUIRED BY GOVERNMENT PRIOR TO JANUARY
2, 1971, ENACTMENT DATE OF PUBLIC LAW 91-646, AND WHO IS ALLOWED BY
GOVERNMENT TO REMAIN ON PROPERTY WITH OR WITHOUT LEASE AGREEMENT OR
PAYMENT OF RENT UNTIL AFTER THAT DATE IS ENTITLED ONLY TO BENEFITS AS
TENANT UNDER ACT; DISPLACED PERSON BEING ENTITLED TO HOMEOWNER BENEFITS
ONLY IF PROPERTY IS ACTUALLY OWNED BY HIM AND GOVERNMENT ACQUIRES SUCH
PROPERTY ON OR AFTER DATE OF ACT. SEE 52 COMP. GEN. 300 (1972).
HOMEOWNER BENEFITS UNDER PUBLIC LAW 91-646:
WE HAVE BEEN ASKED TO REVIEW THE DETERMINATION BY THE ARMY CORPS OF
ENGINEERS (CORPS) OF THE BENEFITS DUE MR. AND MRS. NORMAN G. MONDT, OF
OGDEN, IOWA, UNDER THE UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY
ACQUISITION POLICIES ACT OF 1970 (RELOCATION ACT), PUB. L. 91-646,
JANUARY 2, 1971, 84 STAT. 1894, 42 U.S.C. 4601, AS A RESULT OF THE
ACQUISITION OF THEIR PROPERTY BY THE CORPS OF ENGINEERS FOR THE
SAYLORVILLE DAM PROJECT. THE MONDTS ARE CONTESTING THE CORPS'
DETERMINATION THAT THEY ARE ENTITLED TO THE BENEFITS AFFORDED TENANTS
UNDER SECTION 204 OF THE RELOCATION ACT, 42 U.S.C. 4624, RATHER THAN THE
GENERALLY MORE FAVORABLE BENEFITS AFFORDED HOMEOWNERS UNDER SECTION 203
OF THAT ACT, 42 U.S.C. 4623. WE WROTE TO THE SECRETARY OF THE ARMY FOR
A FULL REPORT AND EXPRESSION OF HIS VIEWS IN THE MATTER WHICH WERE
SUBMITTED TO US IN A LETTER DATED JUNE 5, 1974, FROM THE DIRECTOR OF
REAL ESTATE, OFFICE OF THE CHIEF OF ENGINEERS.
THE MONDTS WERE OWNERS OF PROPERTY, IDENTIFIED AS TRACT 1214,
ACQUIRED BY DECLARATION OF TAKING FILED BY THE CORPS ON NOVEMBER 19,
1970. THE TAKING INCLUDED THE HOUSE AND FARM BUILDINGS, BUT EXCLUDED,
UNTIL 1993, ALL SAND AND GRAVEL IN AND UNDER 48.47 ACRES OF THE 82-ACRE
TRACT. AN ORDER OF POSSESSION ISSUED JANUARY 7, 1971, PERMITTED THE
MONDTS TO REMAIN IN POSSESSION UNTIL MARCH 1, 1971, AT WHICH TIME THEY
EITHER HAD TO VACATE THE PROPERTY OR ENTER INTO A LEASE WITH THE
GOVERNMENT.
IN MARCH 1971, THE MONDTS SIGNED A LEASE GIVING THEM POSSESSION OF
THE TRACT OF LAND TOGETHER WITH A HOUSE, BARN, AND SEVERAL OTHER
OUTBUILDINGS FROM MARCH 1, 1971, TO FEBRUARY 29, 1972, THE LEASE
TERMINABLE BY THEM ON THE GIVING OF AT LEAST TEN DAYS NOTICE. RENT WAS
PAYABLE SEMIANNUALLY IN ADVANCE. IN AUGUST 1971, THE LEASE WAS AMENDED
TO DELETE THE FIVE AFOREMENTIONED BUILDINGS AND TO REDUCE THE
SEMI-ANNUAL PAYMENTS FROM $450 TO $177, EFFECTIVE SEPTEMBER 1, 1971,
SINCE THE MONDTS HAD PURCHASED A 40-ACRE REPLACEMENT FARM WITH DWELLING
FOR $28,000. THE CORPS REPORT INDICATES THAT THE MONDTS MAY NOT HAVE
COMPLETED THEIR MOVE FROM ALL THE PROPERTY UNTIL DECEMBER 1, 1971. THE
AGRICULTURAL LEASE WAS AMENDED IN FEBRUARY 1972 TO EXTEND THE LEASE
UNTIL FEBRUARY 28, 1973, AT $177.50 PER ANNUM. A SECOND DECLARATION OF
TAKING WAS FILED BY THE CORPS ON OCTOBER 26, 1972, FOR THE PURPOSE OF
ACQUIRING THE SAND AND GRAVEL PREVIOUSLY EXCLUDED, AND THE MONDTS WERE
ALSO ADVISED THAT THE TRACT WOULD NOT BE FURTHER AVAILABLE FOR
AGRICULTURAL LEASING AFTER FEBRUARY 28, 1973, THE EXPIRATION DATE OF
THEIR LEASE.
IN APRIL 1973, THE MONDTS FILED AN APPLICATION FOR RELOCATION
ASSISTANCE IN THE AMOUNT OF $15,975, SEEKING A $500 PAYMENT IN LIEU OF
MOVING AND DISLOCATION ALLOWANCE; A MINIMUM $2,500 IN LIEU OF FARM
DISLOCATION ALLOWANCE; AND A $12,975 REPLACEMENT HOUSING PAYMENT FOR
HOMEOWNERS. THE FIRST TWO PAYMENTS, WHICH ARE STATUTORY ALLOWANCES IN
LIEU OF PAYMENT OF ACTUAL EXPENSES, WERE APPROVED BY THE DISTRICT
ENGINEER; HOWEVER, BASED ON HIS INTERPRETATION OF OUR DECISION OF
NOVEMBER 28, 1972, 52 COMP. GEN. 300, HE DISALLOWED THE SECTION 203
REPLACEMENT HOUSING PAYMENT ENTIRELY AND INSTEAD TREATED THE APPLICANTS
AS TENANTS.
HAVING INITIALLY PLACED A $4,550 VALUE ON THE ACQUIRED HOME AND LOT,
BASED ON THE VALUE THE HOUSE CONTRIBUTED TO THE ENTIRE FARM, THE
DISTRICT ENGINEER AWARDED THEM A SECTION 204 DOWNPAYMENT BENEFIT OF
$2,602.50. TO ARRIVE AT THE $12,950 REPLACEMENT HOUSING DIFFERENTIAL
THEY REQUESTED, THE APPLICANTS, ACCORDING TO THE CORPS, APPARENTLY
SUBTRACTED THIS AMOUNT FROM $17,500, THEIR ESTIMATED COST OF A
REPLACEMENT HOME. THE DISTRICT ORIGINALLY ESTIMATED THAT THE
REPLACEMENT DWELLING AND LOT CONTRIBUTED APPROXIMATELY $10,600 - LATER
REVISED TO $12,500 - TOWARD THE ENTIRE $28,000 VALUE OF THE REPLACEMENT
FARM. WE ARE ASKED, IN EFFECT, TO DETERMINE IF THE MONDTS ARE ENTITLED
TO THE MORE THAN $10,000 ADDITIONAL THEY ARE NOW SEEKING.
THE CORPS' POSITION IN THE MATTER IS SUMMARIZED IN ITS DIRECTOR OF
REAL ESTATE'S LETTER TO US AS FOLLOWS:
"FOLLOWING ACQUISITION OF THEIR DWELLING, THE MONDTS WERE PERMITTED
BY THE GOVERNMENT TO REMAIN IN POSSESSION UNTIL 1 MARCH 1971, AT WHICH
TIME THEY ENTERED INTO A LEASE WITH THE GOVERNMENT. THEY CONTINUED IN
OCCUPANCY OF THE DWELLING UNDER THE LEASE UNTIL THE MOVED IN DECEMBER
1971. WHILE THEY WERE NOT TECHNICALLY 'LESSEES' DURING THE PERIOD FROM
19 NOVEMBER 1970 UNTIL 1 MARCH 1971 BECAUSE THERE WAS NO LEASE, THEY
COULD NOT HAVE BEEN 'OWNERS' DURING THAT PERIOD BECAUSE THEY WERE
OCCUPYING PREMISES OWNED BY THE UNITED STATES. THE FACT THAT THEY WERE
NOT REQUIRED TO PAY RENT DURING THIS PERIOD DOES NOT ALTER THEIR STATUS
AS TENANTS OF GOVERNMENT-OWNED PROPERTY. SINCE THEY DID NOT OWN THE
DWELLING ON THE EFFECTIVE DATE OF PUBLIC LAW 91-646, THEY COULD NOT
QUALIFY FOR BENEFITS UNDER SECTION 203 BUT WERE ELIGIBLE FOR BENEFITS AS
TENANTS UNDER SECTION 204 WHEN THEY RELOCATED, IN ACCORDANCE WITH YOUR
DECISION NO. B-148044."
THUS, BASED ON ITS INTERPRETATION OF OUR DECISION OF NOVEMBER 28,
1972, B-148044, 52 COMP. GEN. 300, THE CORPS TREATS ALL FORMER OWNERS
WHOSE DWELLINGS WERE ACQUIRED PRIOR TO THE EFFECTIVE DATE OF THE
RELOCATION ACT AS TENANTS. THE CORPS' REGULATIONS STATE THAT BENEFITS
ARE TO BE DETERMINED AS OF THE DATE OF VACATION OF THE PROPERTY BUT THAT
"NO BENEFIT SHALL BE PAID UNDER SECTION 203 TO ANY PERSON WHOSE PROPERTY
WAS ACQUIRED PRIOR TO JANUARY 2, 1971." 32 CFR 641.9.
IN THEIR LETTER TO US OF APRIL 5, 1974, THE MONDTS, ON THE OTHER
HAND, STATE THAT:
"WE BELIEVE THAT THE COMPTROLLER GENERAL DECISION WAS BASED UPON A
CASE WHICH DEALT PRIMARILY WITH PRIORITY LESSEES WHICH WOULD NOT APPLY
TO US AS WE DID NOT BECOME LESSEES UNTIL MARCH 5, 1971, AND MOVED FROM
THE PROPERTY AND DWELLING IN SEPTEMBER OF 1971."
IN 52 COMP. GEN. 300, SUPRA., WE HELD THAT PERSONS WHO SOLD THEIR
HOMES TO THE GOVERNMENT AND WHO BECAME PRIORITY LESSEES OF THE PROPERTY
PRIOR TO THE ENACTMENT OF THE RELOCATION ACT ARE NOT ENTITLED TO THE
BENEFITS AFFORDED HOMEOWNERS UNDER THAT LAW BUT MUST BE TREATED AS
TENANTS.
WE SEE NO BASIS TO DISTINGUISH BETWEEN SUCH LESSEES AND THOSE
PERMITTED BY THE GOVERNMENT TO REMAIN ON THE PROPERTY FOR A SHORT PERIOD
OF TIME WITHOUT A LEASE. AS INDICATED BY THE DIRECTOR OF REAL ESTATE
SUCH PERSONS "COULD NOT HAVE BEEN 'OWNERS' DURING THAT PERIOD BECAUSE
THEY WERE OCCUPYING PREMISES OWNED BY THE UNITED STATES."
WHEN THE GOVERNMENT ACQUIRES PROPERTY FOR A PROJECT EITHER THROUGH
CONDEMNATION OR BY NEGOTIATION, IT GENERALLY TRIES TO ALLOW THE FORMER
OWNERS TO REMAIN ON THE PROPERTY FOR SUFFICIENT TIME TO ARRANGE THEIR
AFFAIRS AND FIND REPLACEMENT HOUSING. FOR EXAMPLE, THE CORPS' POLICY
IS, IN EFFECT, THAT, TO THE GREATEST EXTENT PRACTICABLE, NO PERSON
LAWFULLY OCCUPYING REAL PROPERTY WILL BE REQUIRED TO MOVE WITHOUT BEING
GIVEN AT LEAST 90 DAYS' WRITTEN NOTICE. A NOTICE OF LESS THAN 90 DAYS
MAY BE GIVEN ONLY IN EMERGENCY OR OTHER EXTRAORDINARY SITUATIONS WITH
THE PRIOR APPROVAL OF A CENTRAL OFFICE LOCATED IN WASHINGTON, D.C. 32
C.F.R. 641.194. HOWEVER, AS THE NEW OWNER OF THE PROPERTY, THE
GOVERNMENT COULD REQUIRE THE FORMER OWNERS TO VACATE IMMEDIATELY UPON
ACQUISITION.
PERSONS WHO OWN THEIR PROPERTY AS OF OR AFTER THE DATE OF ENACTMENT
OF THE RELOCATION ACT AND WHOSE PROPERTY IS ACQUIRED BY THE GOVERNMENT
AFTER THAT DATE DO NOT, OF COURSE, LOSE THEIR STATUS AS HOMEOWNERS AND
BECOME TENANTS FOR THE PURPOSES OF THE BENEFITS ACCORDED BY THE SUBJECT
ACT BY VIRTUE OF THEIR REMAINING ON THEIR FORMER PROPERTY FOR THE FEW
WEEKS OR MONTHS ALLOWED THEM BY THE ACQUIRING AGENCIES. HOWEVER, IT IS
OUR VIEW THAT A DISPLACED PERSON IS ENTITLED TO HOMEOWNER BENEFITS ONLY
IF HE OWNED THE PROPERTY AT THE TIME THE GOVERNMENT ACQUIRED IT AND SUCH
ACQUISITION TOOK PLACE ON OR AFTER JANUARY 2, 1971. THUS, PERSONS WHOSE
PROPERTIES WERE ACQUIRED PRIOR TO THE DATE OF ENACTMENT OF THE ACT MAY
NOT BE CONSIDERED OWNERS FOR THE PURPOSES OF SECTION 203 SINCE,
OBVIOUSLY, AT THE TIME OF THE ACQUISITION OF THEIR PROPERTY THE
RELOCATION ACT WAS NOT IN EFFECT AND THEY WERE NOT HOMEOWNERS ON OR
AFTER THE EFFECTIVE DATE OF THE ACT. IF THE CONGRESS HAD INTENDED THE
BENEFITS OF THIS ACT TO APPLY TO ALL THOSE WHOSE PROPERTIES WERE
ACQUIRED BEFORE JANUARY 1, 1971, IT COULD HAVE SO PRVIDED. INSTEAD, IT
SPECIFICALLY ALLOWED RETROACTIVE BENEFITS ONLY TO A SMALL AND SPECIFIC
GROUP OF DISPLACED PERSONS SO THAT IT IS CLEAR THAT OTHERS WHOSE
PROPERTIES WERE ACQUIRED BEFORE THE SUBJECT DATE ARE NOT ENTITLED TO THE
ACT'S HOMEOWNER BENEFITS. SEE 52 COMP. GEN. 300, SUPRA.
IN A LETTER OF JULY 26, 1974, TO US, THE MONDTS QUOTE THE PROVISIONS
OF THE ACT OF FEBRUARY 26, 1931, CH. 307, SEC. 1, 46 STAT. 1421, 40
U.S.C. 258A, AND CONTEND THAT SINCE THEY WERE NOT ENTITLED TO DRAW UPON
THE DEPOSIT UNTIL AFTER THE COURT'S DECISION ON JANUARY 7, 1971, THEY
WERE OWNERS AT LEAST THROUGH THAT DATE.
THE RELEVANT PROVISIONS OF THAT SECTION ARE:
"SEC. 258A. SAME; LANDS, EASEMENTS, OR RIGHTS-OF-WAY FOR PUBLIC USE;
TAKING POSSESSION AND TITLE IN ADVANCE OF FINAL JUDGMENT; AUTHORITY;
PROCEDURE.
"UPON THE FILING SAID DECLARATION OF TAKING AND OF THE DEPOSIT IN THE
COURT, TO THE USE OF THE PERSONS ENTITLED THERETO, OF THE AMOUNT OF THE
ESTIMATED COMPENSATION STATED IN SAID DECLARATION, TITLE TO THE SAID
LANDS IN FEE SIMPLE ABSOLUTE, OR SUCH LESS ESTATE OR INTEREST THEREIN AS
IS SPECIFIED IN SAID DECLARATION, SHALL VEST IN THE UNITED STATES OF
AMERICA, AND SAID LANDS SHALL BE DEEMED TO BE CONDEMNED AND TAKEN FOR
THE USE OF THE UNITED STATES, AND THE RIGHT TO JUST COMPENSATION FOR THE
SAME SHALL VEST IN THE PERSONS ENTITLED THERETO; AND SAID COMPENSATION
SHALL BE ASCERTAINED AND AWARDED IN SAID PROCEEDING AND ESTABLISHED BY
JUDGMENT THEREIN, AND THE SAID JUDGMENT SHALL INCLUDE, AS PART OF THE
JUST COMPENSATION AWARDED, INTEREST AT THE RATE OF 6 PER CENTUM PER
ANNUM ON THE AMOUNT FINALLY AWARDED AS THE VALUE OF THE PROPERTY AS OF
THE DATE OF TAKING, FROM SAID DATE TO THE DATE OF PAYMENT; BUT INTEREST
SHALL NOT BE ALLOWED ON SO MUCH THEREOF AS SHALL HAVE BEEN PAID INTO THE
COURT. NO SUM SO PAID INTO THE COURT SHALL BE CHARGED WITH COMMISSIONS
OR POUNDAGE. ***"
IT CAN BE SEEN BY THE ABOVE-QUOTED PORTION OF THE ACT THAT TITLE TO
THE PROPERTY, ALONG WITH RIGHT TO POSSESSION THERETO, VESTS IN THE
UNITED STATES IN ADVANCE OF A FINAL JUDGMENT IN CONDEMNATION
PROCEEDINGS. SEE ALSO 40 U.S.C. 258D. ACCORDINGLY, UPON FILING OF THE
DECLARATION OF TAKING AND THE DEPOSIT OF MONIES IN THE COURT, TITLE TO
THE MONDTS' PROPERTY PASSED TO THE GOVERNMENT. THIS, OF COURSE,
OCCURRED PRIOR TO THE DATE OF ENACTMENT OF THE RELOCATION ACT.
ACCORDINGLY, IT IS OUR VIEW, THAT PERSONS WHO WERE NOT HOMEOWNERS ON
OR AFTER JANUARY 2, 1971, THE EFFECTIVE DATE OF PUBLIC LAW 91-646,
CANNOT QUALIFY FOR HOMEOWNER BENEFITS UNDER THE RELOCATION ACT AND WE
BELIEVE, THEREFORE, THAT THE COPRS PROPERLY DETERMINED THE TYPE OF
BENEFITS TO WHICH THE MONDTS ARE ENTITLED.
B-174527, AUG 23, 1974
HEADNOTES-UNAVAILABLE
WHERE THROUGH NO FAULT OF CLAIMANT DESTRUCTION OF COMPANY RECORDS
AFTER A PERIOD OF TIME PREVENTED CALCULATION OF ACTUAL CLOSING COSTS
PAID BY SELLER, LEVITT AND SONS, INC., AND INCLUDED IN SELLING PRICE OF
MARYLAND RESIDENCE PURCHASED BY CLAIMANT ON OCTOBER 4, 1967, INCIDENT TO
CHANGE OF OFFICIAL STATION FROM INDIANAPOLIS, INDIANA, TO WASHINGTON,
D.C., DOCUMENTATION AS TO THE AVERAGE CLOSING COSTS FOR THE TYPE OF
DWELLING PURCHASED IS DETERMINED TO BE SUFFICIENT SUBSTANTIATION UNDER
THESE CIRCUMSTANCES FOR ALLOWANCE OF EMPLOYEE'S CLAIM FOR $300 CLOSING
COSTS IN ACCORDANCE WITH 52 COMP. GEN 11 (1972) AND SUBSECTIONS 4.1 AND
4.3A OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A-56.
RUSSELL G. MONTGOMERY - RELOCATION EXPENSES - CLOSING COSTS:
THIS ACTION IS IN RESPONSE TO A LETTER DATED DECEMBER 19, 1973, FROM
MR. JAMES L. HUMPHREY, AUTHORIZED CERTIFYING OFFICER OF THE GENERAL
ACCOUNTING OFFICE REQUESTING A DECISION AS TO THE ENTITLEMENT OF MR.
RUSSELL G. MONTGOMERY, AN EMPLOYEE OF THE TRANSPORTATION AND CLAIMS
DIVISION OF THE GENERAL ACCOUNTING OFFICE, TO REIMBURSEMENT OF CLOSING
COSTS IN THE AMOUNT OF $300 PAID IN CONNECTION WITH THE PURCHASE OF HIS
RESIDENCE IN BOWIE, MARYLAND, INCIDENT TO A TRANSFER OF OFFICIAL STATION
FROM INDIANAPOLIS, INDIANA, TO WASHINGTON, D.C., ON OCTOBER 4, 1967.
THE COPY OF THE CLOSING STATEMENT FURNISHED SHOWS THE COST OF THE
HOUSE PURCHASED AND OTHER DEBITS AND CREDITS BUT THE COSTS OF CLOSING
WERE NOT SPECIFICIALLY SET FORTH THEREIN. IN RESPONSE TO INQUIRY FROM
THE CLAIMANT, THE GENERAL ATTORNEY FOR LEVITT RESIDENTIAL COMMUNITIES,
INC. ADVISED, BY LETTER DATED NOVEMBER 2, 1973, THAT THERE WAS NO WAY IN
WHICH THEY COULD CALCULATE THE ACTUAL CLOSING COSTS PAID BY THE CLAIMANT
AS THEY WERE INCLUDED AS PART OF THE PURCHASE PRICE OF HIS HOUSE, AND
THAT ALL ESSENTIAL RECORDS CONTAINING SUCH INFORMATION HAD BEEN
DESTROYED IN THE PASSAGE OF TIME. FURTHERMORE, THERE WAS NO ONE THERE
WHO COULD DEFINITELY STATE WHAT THE CLOSING COSTS WERE, AND THAT THE
ONLY ACTUAL FEES WHICH COULD BE DETERMINED WOULD BE THE REVENUE STAMPS
AND RECORDING FEES OBTAINABLE AT THE COURT HOUSE IN UPPER MARLBORO. HE
CONCLUDED THAT "IN THE ABSENCE OF DEFINITE RECORDS, IT SEEMS TO BE THE
CONSENSUS AROUND HERE THAT THE CLOSING COSTS ON THE PURCHASE OF YOUR
HOUSE AMOUNTED TO APPROXIMATELY $300." THE SUFFICIENCY OF THIS
CONCLUSION TO SUBSTANTIATE REIMBURSEMENT FOR CLOSING COSTS PAID BY THE
PURCHASER PURSUANT TO OMB CIRCULAR NO. A-56, IS IN ISSUE.
SECTION 4.2C OF OMB CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966,
WHICH WAS IN EFFECT AT THE TIME OF THE PURCHASE, AUTHORIZED
REIMBURSEMENT OF LEGAL AND RELATED COSTS. IT PROVIDED THAT TO THE
EXTENT SUCH COSTS HAVE NOT BEEN INCLUDED IN THE BROKER'S FEE OR SIMILAR
SERVICES FOR WHICH REIMBURSEMENT IS CLAIMED UNDER OTHER CATEGORIES,
CUSTOMARY COSTS OF SEARCHING TITLE, PREPARING CONVEYANCES AND OTHER
INSTRUMENTS AND PREPARING CONTRACTS, RELATED NOTARY FEES, RECORDING
FEES, MAKING SURVEYS, PREPARING DRAWINGS OR PLATS WHEN REQUIRED FOR
LEGAL OR FINANCING PURPOSES AND SIMILAR EXPENSES MAY BE REIMBURSED
EITHER WITH RESPECT TO SALE OF THE RESIDENCE AT THE OLD OFFICIAL STATION
OR PURCHASE OF A DWELLING AT THE NEW OFFICIAL STATION, BUT THE SAME
TYPES OF COSTS SHALL NOT BE PAID AT BOTH LOCATIONS.
SUBSECTIONS 4.1 AND 4.3A OF OMB CIRCULAR NO. A-56 REQUIRE AS A
CONDITION FOR REIMBURSEMENT OF REAL ESTATE TRANSACTION EXPENSES INCURRED
INCIDENT TO TRANSFER OF OFFICIAL STATION THAT SUCH EXPENSES MUST BE PAID
BY THE EMPLOYEE, AND THAT EACH AMOUNT CLAIMED MUST BE SUPPORTED BY
DOCUMENTATION SHOWING THAT THE EXPENSE WAS IN FACT INCURRED AND PAID BY
THE EMPLOYEE.
PRIOR TO JULY 5, 1972, WE HAD CONSISTENTLY HELD THAT THE CLOSING
COSTS INCIDENT TO PURCHASE OF A RESIDENCE COULD NOT BE REGARDED AS
HAVING BEEN PAID BY THE PURCHASER EVEN THOUGH INCLUDED IN THE SALES
PRICE; ALSO THAT WE WOULD NOT LOOK BEHIND THE PRICE OF THE REALTY. FOR
SIMILAR CASES SEE 52 COMP. GEN. 11 (1972), AND CASES CITED THEREIN.
BY OUR DECISIONS IN 52 COMP. GEN. 11 (1972), AND IN B-173870,
DECEMBER 8, 1972, BOTH PERTAINING TO TRANSFEREES TO THE WASHINGTON,
D.C., AREA WHO PURCHASED HOUSES FROM LEVITT AND SONS, INC., IN BOWIE,
MARYLAND, ALL OF THE FORMER CONTRARY HOLDINGS WERE OVERRULED. IN THESE
TWO CASES REIMBURSEMENT HAD ORIGINALLY BEEN DENIED BECAUSE CLOSING COSTS
HAD BEEN INCLUDED IN THE PURCHASE PRICE OF THE REAL ESTATE AND HENCE
WERE NOT REGARDED AS HAVING BEEN PAID BY THE PURCHASER. UPON
RECONSIDERATION, IT WAS DETERMINED THAT "THE CLOSING COSTS WHICH WERE
ADDED TO THE PURCHASE PRICE ARE CLEARLY DISCERNIBLE AND SEPARABLE FROM
THE PRICE ALLOCABLE TO THE REALTY", THEREFORE, THE CLAIM FOR
REIMBURSEMENT OF CLOSING COSTS IN EACH INSTANCE WAS ALLOWED, AND THE
DECISION HELD TO GOVERN IN FUTURE ANALOGOUS CASES.
THE CLAIMANT IN INSTANT CASE, DUE TO NO FAULT OF HIS OWN, WAS UNABLE
TO OBTAIN A RECORD OF THE ACTUAL CLOSING COSTS PERTAINING TO THE
PURCHASE OF HIS RESIDENCE, AS ALL PERTINENT RECORDS HAD BEEN DESTROYED
BY LEVITT AND SONS, INC., AFTER A PERIOD OF TIME, APPARENTLY IN
ACCORDANCE WITH THEIR CUSTOM. PRIOR TO OUR 1972 DECISIONS, THERE WOULD
HAVE BEEN NO NEED FOR CLAIMANT TO HAVE REQUESTED THE RECORD OF CLOSING
COSTS AS THE EARLIER DECISIONS PRECLUDED RECOVERY IN ALL CASES IN WHICH
THE PURCHASE PRICE OF A HOUSE INCORPORATED THE CLOSING COSTS. HENCE, HE
CLAIMANT CANNOT BE CONSIDERED TO HAVE "SLEPT ON HIS RIGHTS."
THE STATEMENT OF THE GENERAL ATTORNEY OF LEVITT AND SONS, INC., THAT
"IN THE ABSENCE OF DEFINITE RECORDS, IT SEEMS TO BE THE CONSENSUS AROUND
HERE THAT THE CLOSING COSTS ON THE PURCHASE OF YOUR HOUSE AMOUNTED TO
APPROXIMATELY $300", REPRESENTS THE CONSIDERED OPINION OF EXPERTS IN THE
FIELD WITH VAST EXPERIENCE IN SELLING REAL PROPERTY IN THE AREA UNDER
THE ESTABLISHED PROCEDURE OF THE COMPANY. IN LIEU OF OTHER
DOCUMENTATION OF CLOSING COSTS REQUIRED BY CURRENT REGUALTIONS, WHICH IS
UNAVAILABLE, IT WOULD APPEAR THAT THE STATEMENT FURNISHED ABOVE IS THE
BEST POSSIBLE EVIDENCE AVAILABLE OF THE APPROXIMATE CLOSING COSTS IN
THIS TRANSACTION.
CLAIMANT HAS FURNISHED DOCUMENTATION SHOWING WHAT IS CONSIDERED THE
AVERAGE CLSING COSTS FOR THE TYPE OF HOUSE PURCHASED BY HIM.
ACCORDINGLY, THE CLAIM SHOULD BE ALLOWED IN THE AMOUNT CLAIMED, IF
OTHERWISE CORRECT, SUBJECT TO THE DEDUCTION DISCUSSED BELOW.
THERE IS NOW ON FILE A COPY OF A VOUCHER FURNISHED BY THE CLAIMANT
SHOWING THE FOLLOWING EXPENSES INCURRED BY HIM AT HIS OLD DUTY STATION
INCIDENT TO THE SALE OF HIS RESIDENCE FOR WHICH HE HAS BEEN REIMBURSED:
ABSTRACT CONTINUATION $63.00
REVENUE STAMPS $11.55
SUBSECTIONS 4.2C AND 4.2D OF OMB CIRCULAR NO. A-56 PROVIDES,
RESPECTIVELY, THAT THE CUSTOMARY COSTS OF SEARCHING TITLE AND FEES PAID
FOR STATE AND FEDERAL REVENUE STAMPS MAY BE REIMBURSED EITHER WITH
RESPECT TO THE SALE OF THE RESIDENCE AT THE OLD OFFICIAL STATION OR
PRUCHASE OF A DWELLING AT THE NEW STATION, BUT THE SAME TYPES OF COSTS
SHALL NOT BE PAID AT BOTH LOCATIONS.
SINCE THE CLAIMANT HAS INFORMALLY ADVISED US THAT INCIDENT TO THE
PURCHASE OF HIS DWELLING AT HIS NEW DUTY STATION THERE WAS INCLUDED IN
THE CLOSING COSTS A COST FOR A TITLE SEARCH AND FEES FOR REVENUE STAMPS,
WHICH HE IS UNABLE TO DETERMINE THE EXACT AMOUNT AT THIS TIME, THERE
SHOULD BE DEDUCTED FROM THE AMOUNT FOUND DUE THE AMOUNT HE HAS BEEN
REIMBURSED FOR THE ABSTRACT CONTINUATION ($63) AND THE COSTS OF REVENUE
STAMPS ($11.55).
B-181086, AUG 23, 1974
HEADNOTES-UNAVAILABLE
1. SINCE PROTESTER INTENDED TO EVALUATE EXPLANATION FOR NOT
RECEIVING AWARD PROVIDED BY AGENCY AT DEBRIEFING HELD ON MARCH 21, 1974,
BEFORE PURSUING ITS PROTEST, PROTESTER COULD NOT EXPECT AGENCY TO ACT
FURTHER ON PROTEST WITHOUT ADDITIONAL TIMELY INITIATIVE BY PROTESTER,
AND THEREFORE PROTEST FILED WITH OUR OFFICE ON APRIL 17, 1974 IS
UNTIMELY UNDER SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND
STANDARDS WHICH PROVIDES THAT "BID PROTESTS SHALL BE FILED NOT LATER
THAN FIVE WORKING DAYS AFTER THE BASIS FOR THE PROTEST IS KNOWN OR
SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER."
2. SINCE PROTESTER WAS ADVISED THAT AWARD HAD BEEN MADE TO ANOTHER
OFFEROR BY AGENCY LETTER OF APRIL 2, 1974, WHICH WAS RECEIVED APRIL 4,
1974, AND OFFEROR DID NOT FILE ITS PROTEST WITH THIS OFFICE UNTIL APRIL
17, 1974, PROTEST IS UNTIMELY UNDER SECTION 20.2 (A) OF INTERIM BID
PROTEST PROCEDURES AND STANDARDS WHICH REQUIRES THAT PROTEST FILED
INITIALLY WITH THE CONTRACTING AGENCY BE PROTESTED TO THE GENERAL
ACCOUNTING OFFICE WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION
REGARDING INITIAL PROTEST TO AGENCY.
LPL TECHNICAL SERVICE, INCORPORATED:
IN A DECISION DATED MAY 13, 1974, THIS OFFICE CONCLUDED THAT A
PROTEST FILED HERE ON APRIL 17, 1974 BY LPL TECHNICAL SERVICE WAS
UNTIMELY SINCE IT WAS FILED MORE THAN FIVE DAYS AFTER A DEBRIEFING BY
THE PROCURING AGENCY ON MARCH 21, 1974, TO EXPLAIN THE BASIS FOR
PROPOSAL REJECTION. SECTION 20.2(A) OF THE INTERIM BID PROTEST
PROCEDURES AND STANDARDS, 4 C.F.R. 20.2(A).
LPL NOW CONTENDS THAT IT MET THE FIVE-DAY FILING REQUIREMENT OF THE
ABOVE REGULATION BY LODGING A VIGOROUS VERBAL PROTEST ON MARCH 21 AT THE
DEBRIEFING. IN THIS CONNECTION LPL STATES:
"WE ADVISED ALL WHO WERE PRESENT, AS ENUMBERATED IN PREVIOUS
CORRESPONDENCE, THAT WE WOULD EXAMINE OUR POPOSAL FOR WHAT WAS STATED BY
THE NAVY AS 'DEFICIENCIES', AND CONTINUE OUR PTOEST IF WE FELT
JUSTIFIED. IN NO WAY DID THIS EXAMINATION OF OUR PROPOSAL FORFEIT OUR
RIGHT TO CINTINUE TO PROEST. WE MERELY AGREED WITH MR. WEINTRAUB, OF
THE NAVY TECHNICAL DEPARTMENT, THAT WE WOULD EXAMINE OUR PROPOSAL FOR
THE DISCREPANCIES HE CITED. UPON THE RE-EXAMINATION OF OUR PROPOSAL, WE
PROCEEDED WITH OUR PROTEST BY LETTER TO VARIOUS DEPARTMENTS; I.E., NAVY
DEPARTMENT, 11TH NAVAL DISTRICT, AND THE GENERAL ACCOUNTING OFFICE."
IT IS CLEAR THAT LPL INTENDED TO EVALUATE THE EXPLANATION GIVEN AT
THE DEBRIEFING AND TO RETAIN ITS RIGHT TO PURSUE ITS PROTEST. THUS LPL
COULD NOT HAVE FAIRLY EXPECTED NAVY TO INITIATE ANY FURTHER EFFORT WITH
REGARD TO VERBAL PROTESTATIONS IT MAY HAVE LODGED AT THE DEBRIEFING.
CLEARLY, IT WAS INCUMBENT UPON LPL TO WEIGH THE EXPLANATION PROVIDED AND
THEN TO ACT ON ITS CONCLUSIONS. SINCE LPL DID NOT BRING HIS MATTER TO
OUR ATTENTION UNTIL APRIL 17 (BY LETTER DATED APRIL 11) WE REMAIN OF THE
OPINION THAT SUCH ACTION WAS UNTIMELY UNDER THE ABOVE-CITED PROTEST
PROCEDURE.
IN ANY EVENT, THE RECORD REVEALS THAT BY LETTER DATED APRIL 2, 1974,
AND RECEIVED BY LPL ON APRIL 4, 1974, OFFICIAL NOTICE OF CONTRACT AWARD
WAS GIVEN. ASSUMING, ARGUENDO, THAT A VALID PROTEST WAS MADE TO THE
PROCURING ACTIVITY ON MARCH 21, 1974, SECTION 20.2(A) OF OUR INTERIM BID
PROTEST PROCEDURES AND STANDARDS STATES THAT WHEN A TIMELY PROTEST HAS
BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, SUBSEQUENT PROTEST TO
OUR OFFICE MUST BE FILED "WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE
AGENCY ACTION" IN ORDER TO BE CONSIDERED. WE HAVE HELD THAT WHERE THE
INITIAL PROTEST IS LODGED WITH THE PROCURING AGENCY IT IS OBLIGATORY
UPON A PROTESTER TO FILE ITS PROTEST WITH OUR OFFICE WITHIN 5 DAYS OF
NOTIFICATION OF INITIAL ADVERSE AGENCY ACTION. 52 COMP. GEN. 20, 23
(1972).
IT APPEARS THAT LPL WAS NOTIFIED OF AN AWARD (AFTER IT CLAIMS TO HAV
PROTESTED AGAINST SUCH AN AWARD ON MARCH 21, 1974) APPROXIMATELY 9
WORKING DAYS BEFORE ITS PROTEST WAS FILED WITH OUR OFFICE. THEREFORE,,
LPL'S PROTEST IS UNTIMELY UNDER THE PROVISIONS OF SECTION 20.2(A) CITED
ABOVE.
WE THEREFORE MUST DECLINE TO CONSIDER THE PROTEST ON ITS MERITS.
B-181103, AUG 23, 1974
HEADNOTES-UNAVAILABLE
WHERE TRANSPORTATION OF A HOUSE TRAILER IS BY COMMERCIAL CARRIER,
SECTION 9.3A(1) OF OMB CIRCULAR NO. A-56, REVISED AUGUST 17, 1971,
LIMITS REIMBURSEMENT TO THE CARRIER'S CHARGES FOR THE TRANSPORTATION OF
THE HOUSE TRAILER AND ITS CONTENTS, NOT TO EXCEED THE APPLICABLE TARIFF,
PLUS FEES, TOLLS AND CHARGES, AND THERE IS NO AUTHORITY TO REIMBURSE THE
EMPLOYEE FOR SHIPMENT OF ACCESSORY EQUIPMENT THAT WAS NOT CARRIED IN THE
HOUSE TRAILER AT GOVERNMENT EXPENSE.
FRANK J. SCHMALZ - RELOCATION EXPENSES - REIMBURSEMENT FOR SEPARATE
TRANSPORTATION OF ACCESSORY HOUSE TRAILER EQUPMENT:
THIS IS A REQUEST FOR A DECISION BY A CERTIFYING OFFICER AS TO THE
PROPRIETY OF CERTIFYING FOR PAYMENT THE RECLAIM VOUCHER OF MR. FRANK J.
SCHMALZ IN THE AMOUNT OF $30.66 REPRESENTING REIMBURSEMENT FOR MILEAGE
IN CONNECTION WITH HIS TRANSFER OF DUTY STATION FROM SIDNEY TO MILES
CITY, MONTANA, IN SEPTEMBER 1972.
MR. SCHMALZ, AN EMPLOYEE OF THE UNITED STATES DEPARTMENT OF
AGRICULTURE, HAS BEEN REIMBURSED $156.90 FOR TRANSPORTATION OF HIS HOUSE
TRAILER BY COMMERCIAL CARRIER AND NOW CLAIMS REIMBURSEMENT FOR MILEAGE
OF 6 CENTS PER MILE FOR 511 MILES, COVERING TWO ROUND TRIPS BY PRIVATELY
OWNED VEHICLE FROM HIS OLD TO HIS NEW STATION FOR THE PURPOSE OF
TRANSPORTING ACCESSORY EQUIPMENT USED IN CONJUNCTION WITH THE HOUSE
TRAILER, BUT WHICH, BECAUSE OF ITS BULK AND COMPOSITION, COULD NOT
REASONABLE BE TRANSPORTED INSIDE THE TRIALER. THE EQUIPMENT INCLUDED
TRAILER SKIRTING, SKIRTING FRAME LUMBER, CONCRETE BLOCKS, SUPPORT JACKS,
WOODEN BLOCK WEDGES, SEWER PIPE AND FITTINGS, WATER PIPE AND FITTINGS,
WOODEN ENTRANCE STEPS, ANCHORS, AND AIR CONDITIONERS.
SECTION 5724(A)(2) OF TITLE 5 OF THE UNITED STATES CODE, PROVIDES
AUTHORITY UNDER REGULATIONS BY THE PRESIDENT FOR PAYMENT OF
TRANSPORTATION OF THE HOUSEHOLD GOODS AND PERSONAL EFFECTS OF AN
EMPLOYEE TRANSFERRED FROM ONE OFFICIAL STATION OR AGENCY TO ANTOHER FOR
PERMANENT DUTY. SUBSECTION (B)(1) AUTHORIZES A REASONABLE ALLOWANCE NOT
IN EXCESS OF 20 CENTS A MILE TO AN EMPLOYEE WHO TRANSPORTS HIS HOUSE
TRIALER OR MOBILE DWELLING INSIDE THE CONTINENTAL UNITED STATES FOR USE
AS A RESIDENCE AND WHO WOULD OTHERSIWE BE ENTITLED TO TRANSPORTATION OF
HOUSEHOLD GOODS AND PERSONAL EFFECTS UNDER SUBSECTION (A)(2).
SUBSECTION (B)(2) OF THAT SECTION PROVIDES FOR THE COMMERCIAL
TRANSPORTATION OF THE HOUSE TRIALER AT GOVERNMENT EXPENSE OR
REIMBURSEMENT TO THE EMPLOYEE THEREFOR, INCLUDING THE PAYMENT OF
NECESSARY TOLLS, CHARGES AND PERMIT FEES, IF THE TRAILER IS NOT
TRANSPORTED BY THE EMPLOYEE. SUCH PAYMENT MAY NOT EXCEED THE MAXIMUM
PAYMENT TO WHICH THE EMPLOYEE WOULD OTHERWISE BE INTITLED UNDER
SUBSECTION (A)(2) OF SECTION 5724.
SECTION 1.2G, OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56,
REVISED AUGUST 17, 1971, IMPLEMENTING THE PROVISIONS OF 5 U.S.C.
5724(B)(2), DEFINES MOBILE HOME AS MEANING "ALL TYPES OF HOUSE TRAILERS
AND MOBILE DWELLINGS CONSTRUCTED FOR USE AS RESIDENCES AND DESIGNED TO
BE MOVED OVERLAND, EITHER BY BEING SELF-PROPELLED OR TOWED."
SECTION 9 OF THE CIRCULAR PROVIDES THAT THE ALLOWANCE FOR
TRANSPORTATION OF A HOUSE TRAILER IS IN LIEU OF TRANSPORTING HOUSEHOLD
GOODS AND PERSON EFFECTS. SUBSECTION 9.3A PROVIDES THAT WHERE THE
TRANSPORTATION OF A HOUSE TRAILER IS BY COMMERICAL MEANS, THE ALLOWANCES
SHALL INCLUDE THE CARRIER'S ACTUAL CHARGES IN AN AMOUNT NOT TO EXCEED
THE APPLICABLE TARIFF AS APPROVED BY THE INTERSTATE COMMERCE COMMISSION
(OR APPROPRIATE STATE REGULATORY BODY FOR INTRASTATE MOVEMENTS) FOR
TRANSPORTATION OF A MOBILE HOME OF THE SIZE AND TYPE INVOLVED FOR THE
DISTANCE INVOLVED.
SUBSECTION 9.3B OF THE CIRCULAR PROVIDES THAT WHEN A MOBILE HOME IS
TRANSPORTED BY MEANS OTHER THAN A COMMERCIAL CARRIER, SUCH AS WHEN IT IS
TOWED-BY A PRIVATELY-OWNED VEHICLE, AN ALLOWANCE OF 11 CENTS PER MILE IS
AUTHORIZED FOR ALL TRANSPORTATION COSTS, INCLUDING FERRY FARES, BRIDGE,
ROAD AND TUNNEL TOLLS, AND SIMILAR CHARGES. SUBSECTION 9.3C PROVIDES
THAT WHEN A MOBILE HOME IS TRANSPORTED PARTLY BY COMMERCIAL CARRIER AND
PARTLY BY PRIVATE MEANS, THE ALLOWANCES IN SECTIONS 9.3A AND 9.3B APPLY
TO THE RESPECTIVE PORTIONS OF THE TRANSPORTATION.
THUS, THE STATUTE AND REGULATIONS ABOVE CONTEMPLATE THAT PAYMENT BY
THE GOVERNMENT FOR THE TRANSPORTATION OF A HOUSE TRAILER BY COMMERICAL
OR BY PRIVATE MEANS IS IN LIEU OF THE TRANSPORTATION OF ANY AND ALL
HOUSEHOLD GOODS AND PERSONAL EFFECTS THAT AN EMPLOYEE OTHERWISE WOULD BE
ENTITLED TO TRANSPORT AT GOVERNMENT EXPENSE. SEE 51 COMP. GEN 27
(1971).
FURTHERMORE, A REASONABLE INTERPRETATION OF SECTION 9.3C OF THE
CIRCULAR COMPELS THE INTERPRETATION THAT THE MIXED METHODS FOR
TRANSPORTATION OF A TRIALER THEREIN AUTHORIZED ARE APPLICABLE ONLY TO
THE MOVEMENT OF THE TRAILER AND ITS CONTENTS ITSELF, UNDER THE
DEFINITION OF A MOBILE HOME AS SET FORTH IN SUBSECTION 1.2G OF THE
CIRCULAR AND WOULD COVER SITUATIONS SUCH AS A BREAKDOWN OCCURRING IN
CONNECTION WITH THE TRANSPORTATION OF THE TRAILER NECESSITATING THE USE
OF ANOTHER MODE FOR COMPLETING THE MOVEMENT. SEE 44 COMP. GEN. 809
(1965); CF. 39 ID. 40 (1959).
IN SITUATIONS SUCH AS THE SUBJECT CASE, WHERE THE FILE INDICATES THAT
THE EMPLOYEE HAS BEEN REIMBURSED FOR THE COMMERCIAL TRANSPORTATION OF
HIS MOBILE HOME FROM THE OLD TO THE NEW DUTY STATION UNDER APPLICABLE
TARIFF RATES, WHICH ARE BASED ON SIZE AND TYPE OF TRAILER, TO PERMIT
PAYMENT ON A MILEAGE BASIS FOR THE SEPARATE MOVEMENT OVER AN EQUAL
DISTANCE OF ANY ACCESSORY PARTS DETACHED FROM THE TRIAL ER WOULD
CONTRAVENE THE INTENT OF THE STATUTORY PROVISIONS IN 5 U.S.C. 5724B
WHICH LIMIT PAYMENT TO EITHER A MILEAGE ALLOWANCE FOR TRANSPORTATION OF
A HOUSE TRAILER BY PRIVATE MEANS, OR TO COMMERCIAL TRANSPORTATION AT
GOVERNMENT EXPENSE, EXCEPT IN THE LIMITED CIRCUMSTANCES DISCUSSED IN
CONNECTION WITH SUBSECTION 9.3C OF THE CIRCULAR, SUPRA.
IT IS, THEREFORE, CONCLUDED THAT WHERE THE TRANSPORTATION OF A MOBILE
HOME IS ACCOMPLISHED BY COMMERCIAL MEANS AT GOVERNMENT EXPENSE, SEPARATE
REIMBURSEMENT FOR TRANSPORTATION BY PRIVATE MEANS OF ITEMS WHICH ARE NOT
CARRIED INSIDE THE TRAILER, IS NOT AUTHORIZED UNDER SECTION 9 OF THE
CIRCULAR, WHETHER SUCH ITEMS BE HOUSEHOLD EFFECTS, PERSONAL EFFECTS,
APPURTENANCES, OR PARTS OF A TRAILER WHICH HAVE BEEN DETACHED THEREFROM.
SINCE MR. SCHMALZ HAS BEEN REIMBURSED FOR THE TRANSPORTATION OF HIS
HOUSE TRAILER IN ACCORDANCE WITH THE REGULATIONS IN SECTION 9 OF
CIRCULAR NO. A-56, THE RECLAIM VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.
B-181204, AUG 23, 1974
HEADNOTES-UNAVAILABLE
OFFEROR'S HAND-DELIVERED PROPOSAL RECEIVED 68 MINUTES AFTER DEADLINE
FOR SUBMISSION OF ALL PROPOSALS WAS PROPERLY REJECTED BY CONTRACTING
OFFICER IN ACCORDANCE WITH RFP INSTRUCTIONS BASED ON FPR 1-3.802-1 SINCE
LATENESS COULD BE ATTRIBUTED ONLY TO FAULT OF OFFEROR'S DELIVERY AGENT,
AND SINCE FPR MAKES NO PROVISION FOR ACCEPTANCE OF LATE HAND-DELIVERED
PROPOSAL WHERE OTHER PROPOSALS HAVE BEEN RECEIVED.
EMERGENCY CARE RESEARCH INSTITUTE:
REQUEST FOR PROPOSALS (RFP) NO. 641-4-362 WAS ISSUED BY THE FOOD AND
DRUG ADMINISTRATION (FDA) ON MARCH 29, 1974, FOR THE PROCUREMENT OF
PERFORMANCE AND SAFETY STANDARDS FOR ELECTROSURGICAL DEVICES.
THE EMERGENCY CARE RESEARCH INSTITUTE (ECRI) PROPOSAL WAS
HAND-DELIVERED TO THE AGENCY 68 MINUTES AFTER THE 4:00 P.M., MAY 1,
1974, DEADLINE FOR RECEIPT OF ALL OFFERS. THE CONTRACTING OFFICER
DETERMINED THAT ECRI'S PROPOSAL WAS LATE AND, THEREFORE, UNACCEPTABLE IN
ACCORDANCE WITH THE PROVISIONS OF THE RFP CONCERNING LATE PROPOSALS.
ECRI PROTESTS THE REJECTION OF ITS LATE PROPOSAL ON THE BASIS THAT IT
IS NOT IN THE NATIONAL INTEREST TO REJECT THE PROPOSAL OF A QUALIFIED
OFFEROR MERELY BECAUSE IT WAS SUBMITTED 1 HOUR AND 8 MINUTES LATE, AND
THAT SUCH ACTION IS CONTRARY TO COMMON SENSE.
THE LATE PROPOSAL PROVISIONS CONTAINED IN THE RFP WERE BASED UPON THE
PROCEDURES SET FORTH IN PARAGRAPH 1-3.802-1 OF THE FEDERAL PROCUREMENT
REGULATIONS (FPR). THE PERTINENT PARTS OF THE RFP ARE AS FOLLOWS:
"SECTION A- GENERAL INSTRUCTIONS
"1. HAND DELIVERED PROPOSALS SHALL BE DELIVERED PRIOR TO THE DATE
AND TIME AND TO THE ADDRESS SET FORTH IN THE COVER LETTER TO THIS
REQUEST FOR PROPOSAL.
"2. LATE PROPOSALS, MODIFICATIONS OF PROPOSALS, AND WITHDRAWALS OF
PROPOSALS:
(A) ANY PROPOSAL RECEIVED AT THE OFFICE DESIGNATED IN THE
SOLICITATION AFTER THE EXACT TIME SPECIFIED FOR RECEIPT WILL NOT BE
CONSIDERED UNLESS IT IS RECEIVED BEFORE AWARD IS MADE, AND:
(1) IT WAS SENT BY REGISTERED OR CERTIFIED MAIL NOT LATER THAN THE
FIFTH CALENDAR DAY PRIOR TO THE DATE SPECIFIED FOR RECEIPT OF OFFERS
(E.G., AN OFFER SUBMITTED IN RESPONSE TO A SOLICITATION REQUIRING
RECEIPT OF OFFERS BY THE 20TH OF THE MONTH MUST HAVE BEEN MAILED BY THE
15TH OR EARLIER);
(2) IT WAS SENT BY MAIL (OR TELEGRAM IF AUTHORIZED) AND IT IS
DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO
MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT
INSTALLATION; OR
(3) IT IS THE ONLY PROPOSAL RECEIVED."
SINCE THE ECRI PROPOSAL WAS HAND-DELIVERED AND DOES NOT FALL WITHIN
ANY OF THE CIRCUMSTANCES UNDER WHICH IT COULD BE CONSIDERED,
NOTWITHSTANDING ITS LATENESS, THE CONTRACTING OFFICER WAS REQUIRED TO
REJECT IT IN ACCORDANCE WITH THE ABOVE-MENTIONED PROCEDURES. BY
CHOOSING A MTHOD OTHER THAN THOSE SPECIFIED FOR POSSIBLE CONSIDERATION
IN THE EVENT THE PROPOSAL ARRIVED LATE, ECRI ASSUMED THE RISK ITS
PROPOSAL WOULD BE REJECTED IF RECEIVED UNTIMELY. B-171568, APRIL 15,
1971; 48 COMP. GEN. 59 (1968).
WHILE ECRI CITES COMMON SENSE AND NATIONAL INTEREST AS REQUIRINGING
CONSIDERATION OF ITS LATE PROPOSAL, WE DO NOT BELIEVE THAT THE
ACCEPTANCE OR REJECTION OF AN INDIVIDUAL PROPOSAL CONCERNING SAFETY AND
PERFORMANCE STANDARDS FOR ELECTROSURGICAL DEVICES SERIOUSLY AFFECTS THE
NATIONAL INTEREST. NOR DO WE BELIEVE THAT THE REJECTION OF THE PROPOSAL
LATE BY 68 MINUTES OFFENDS COMMON SENSE. THE MANNER IN WHICH THE
GOVERNMENT CONDUCTS ITS PROCUREMENTS MUST BE SUBJECT TO STANDARDS SO
THAT ALL WHO DEAL WITH IT WILL BE TREATED EQUALLY AND IMPARTIALLY. BY
THE APPLICATION OF ITS LATE PROPOSAL RULES, THE GOVERNMENT MAY LOSE A
PROPOSAL THAT OFFERS TERMS MORE ADVANTAGEOUS THAN THOSE RECEIVED TIMELY.
HOWEVER, WE THINK THE MAIN CONSIDERATION, IN THE OVERALL VIEW, IS THE
MAINTENANCE OF CONFIDENCE IN THE GOVERNMENT'S PROCUREMENT SYSTEM, RATHER
THAN THE POSSIBLE ADVANTAGE TO BE GAINED IN A SINGLE PROCUREMENT.
ACCORDINGLY, THE PROTEST IS DENIED.
B-181316, AUG 23, 1974
HEADNOTES-UNAVAILABLE
ALTHOUGH AN EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION AT BATTLE
CREEK, MICHIGAN, DETAILED TO A REGIONAL OFFICE 200 MILES FROM HIS
PERMANENT DUTY STATION, TRAVELED TO AND FROM BATTLE CREEK OUTSIDE OF
REGULAR DUTY HOURS, HE IS NOT ENTITLED TO OVERTIME COMPENSATION SINCE 5
U.S.C. 6101(B)(2), WHICH PROVIDES THAT AN EMPLOYEE'S TRAVEL SHOULD
GENERALLY BE SCHEDULED DURING REGULAR WORKING HOURS, DOES NOT AUTHORIZE
OVERTIME AND THE TRAVEL IS NOT WITHIN THE OVERTIME PROVISIONS OF 5
U.S.C. 5542.
FREDERICK M. NICOLAI - OVERTIME COMPENSATION:
THIS DECISION CONCERNS AN APPEAL FROM THE DISALLOWANCE OF A CLAIM FOR
OVERTIME COMPENSATION BY FREDERICK M. NICOLAI, AN EMPLOYEE OF THE
FEDERAL AVIATION ADMINISTRATION (FAA) AT BATTLE CREEK, MICHIGAN.
FROM JUNE 1970 THROUGH DECEMBER 1971, MR. NICOLAI WAS DETAILED TO THE
FAA'S REGIONAL OFFICE IN AURORA, ILLINOIS. DURING THE PERIOD FROM JUNE
1970 UNTIL AUGUST 1971, MR. NICOLAI WAS ON A TUESDAY THROUGH THURSDAY
DETAIL IN AURORA, AND TRAVELED DURING DUTY HOURS ON MONDAY AND FRIDAY
THE 200 MILES TO AND FROM BATTLE CREEK. FROM AUGUST 1971 THROUGH
DECEMBER 1971, MR. NICOLAI WAS ON A MONDAY THROUGH FRIDAY WORKWEEK IN
AURORA AND TRAVEL TO AND FROM BATTLE CREEK WAS PERFORMED OUTSIDE OF
REGULAR DUTY HOURS.
MR. NICOLAI'S CLAIM FOR OVERTIME COMPENSATION FOR THE TIME SPENT,
OUTSIDE OF REGULAR DUTY HOURS, TRAVELING TO AND FROM AURORA WAS
DISALLOWED BY OUR TRANSPORTATION AND CLAIMS DIVISION. HE APPEALS ON THE
GROUND THAT THE TRAVEL AND DETAIL WERE NOT OF AN EMERGENCY NATURE AND
COULD HAVE BEEN SCHEDULED TO AVOID TRAVEL OUTSIDE OF NORMAL DUTY HOURS.
IN SUPPORT OF HIS CONTENTION MR. NICOLAI CITES BAYLOR V. UNITED STATES,
198 CT. CL. 331 (1972).
THE BAYLOR CASE INVOLVED THE OVERTIME COMPENSATION CLAIMS OF GENERAL
SERVICES ADMINISTRATION GUARDS, AND AROSE OUT OT THE REQUIREMENT THAT
THE GUARDS REPORT EARLY FOR MUSTERING, CHANGING OF UNIFORMS, AND DRAWING
OF WEAPONS. WHILE THE BAYLOR CASE INVOLVED TRAVEL BETWEEN THE POINTS
WHERE WEAPONS WERE DRAWN AND THE POSTS OF DUTY, IT DID NOT INVOLVE TIME
SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL DUTY STATION, AS IS
INVOLVED IN THIS CASE. THEREFORE, IT IS INAPPLICABLE.
AUTHORITY FOR THE PAYMENT OF TIME IN A TRAVEL STATUS AWAY FROM THE
OFFICIAL DUTY STATION OF AN EMPLOYEE IS PROVIDED FOR IN 5 U.S.C.
5542(B)(2)(B) AND PROVIDES IN PERTINENT PART:
"(B) FOR THE PURPOSE OF THIS SUBCHAPTER --
"(2) TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL-DUTY
STATION OF AN EMPLOYEE IS NOT HOURS OF EMPLOYMENT UNLESS -
"(B) THE TRAVEL (I) INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING,
(II) IS INCIDENT TO TRAVEL THAT INVOLVES THE PERFORMANCE OF WORK WHILE
TRAVELING, (III) IS CARRIED OUT UNDER ARDUOUS CONDITIONS, OR (IV)
RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED
ADMINISTRATIVELY."
MR. NICOLAI DOES NOT REQUEST PAYMENT ON THE GROUND THAT HIS CASE
COMES WITHIN THE ABOVE PROVISION.
RATHER, HE CONTENDS THAT HE SHOULD BE PAID OVERTIME BECAUSE HIS
TRAVEL COULD HAVE BEEN SCHEDULED WITHIN HIS REGULAR WORKING HOURS. IN
THIS CONNECTION 5 U.S.C. 6101(B)(2) PROVIDES:
"(2) TO THE MAXIMUM EXTENT PRACTICABLE, THE HEAD OF AN AGENCY SHALL
SCHEDULE THE TIME TO BE SPENT BY AN EMPLOYEE IN A TRAVEL STATUS AWAY
FROM HIS OFFICIAL DUTY STATION WITHIN THE REGULARLY SCHEDULED WORKWEEK
OF THE EMPLOYEE."
WHEN AN EMPLOYEE IS REQUIRED TO PERFORM NONCOMPENSABLE TRAVEL OUTSIDE
OF HIS REGULARLY SCHEDULED WORKWEEK THE PROVISIONS OF SECTION 610.123 OF
TITLE 5, CODE OF FEDERAL REGULATIONS, PROMULGATED BY THE CIVIL SERVICE
COMMISSION UNDER 5 U.S.C. 6101(B)(2), ARE TO BE COMPLIED WITH. THAT
SECTION PROVIDES:
"INSOFAR AS PRACTICABLE TRAVEL DURING NONDUTY HOURS SHALL NOT BE
REQUIRED OF AN EMPLOYEE. WHEN IT IS ESSENTIAL THAT THIS BE REQUIRED AND
THE EMPLOYEE MAY NOT BE PAID OVERTIME UNDER 8550.112(E) OF THIS CHAPTER
THE OFFICIAL CONCERNED SHALL RECORD HIS REASONS FOR ORDERING TRAVEL AT
THOSE HOURS AND SHALL, UPON REQUEST, FURNISH A COPY OF HIS STATEMENT TO
THE EMPLOYEE CONCERNED."
THE REFERENCE THEREIN TO SECTION 550.112(E), WHICH IMPLEMENTS THE
AUTHORITY FOR PAYMENT OF OVERTIME COMPENSATION FOR TIME SPENT IN A
TRAVEL STATUS CONTAINED AT 5 U.S.C. 5542(B)(2)(B), IS IN RECOGNITION OF
THE FACT THAT THERE WILL BE INSTANCES IN WHICH OVERTIME COMPENSATION IS
NOT PAYABLE FOR TRAVEL TIME NOTWITHSTANDING THAT TRAVEL WHICH MIGHT BE
WITHIN ADMINISTRATIVE CONTROL IS REQUIRED OF AN EMPLOYEE OUTSIDE OF HIS
REGULAR DUTY HOURS.
IN B-163654, JANUARY 21, 1974, WE EXAMINED THE LEGISLATIVE HISTORY OF
5 U.S.C. 6101(B)(2) AND CONCLUDED THAT SECTION 6101(B)(2) IS NOT ITSELF
AUTHORITY FOR PAYMENT OF OVERTIME COMPENSATION, BUT THAT OVERTIME
COMPENSATION FOR TRAVEL IS ALLOWABLE ONLY IN ACCORDANCE WITH THE
PROVISIONS OF 5 U.S.C. 5542(B)(2). IN OTHER WORDS THE CONGRESS HAS NOT
PROVIDED COMPENSATION AS A REMEDY WHERE THE CIRCUMSTANCES OF AN
EMPLOYEE'S TRAVEL DO NOT FALL WITHIN THE PURVIEW OF 5 U.S.C. 5542(B)(2)
AND WHERE AN AGENCY FAILS TO ADHERE TO THE POLICY OF TRYING TO SCHEDULE
TRAVEL DURING REGULAR DUTY HOURS WHEN PRACTICABLE, ENUNCIATED IN 5
U.S.C. 6101(B)(2). IF THERE HAD BEEN ANY EVIDENCE THAT IT WOULD HAVE
BEEN EXTREMELY DISADVANTAGEOUS TO THE GOVERNMENT THAT THE EMPLOYEE BE
DIRECTED TO TRAVEL ONLY DURING HIS DUTY HOURS, EVEN THOUGH THE
SCHEDULING OF SUCH TRAVEL WAS TECHNICALLY WITHIN THE ADMINISTRATIVE
CONTROL OF THE AGENCY, WE WOULD NOT HAVE OBJECTED TO THE PAYMENT OF MR.
NICOLAI'S CLAIM. IN THE INSTANT CASE, THERE IS NO INDICATION THAT THERE
WAS AN URGENT NECESSITY FOR WEEKEND TRAVEL AND THUS THE TRAVEL WAS NOT
PERFORMED UNDER CONDITIONS WHICH WOULD PERMIT PAYMENT OF OVERTIME
COMPENSATION UNDER THE PROVISIONS OF 5 U.S.C. 5542(B)(2).
IN VIEW OF THE ABOVE THE DISALLOWANCE OF MR. NICOLAI'S CLAIM IS
SUSTAINED.
B-181363, AUG 23, 1974
HEADNOTES-UNAVAILABLE
EMPLOYEE, WHO PERFORMED TEMPORARY DUTY IN CALIFORNIA ON THURSDAY,
DEPARTED AT 7:30 P.M. AND ARRIVED AT HIS RESIDENCE IN VIRGINIA AT 11:15
A.M. FRIDAY, WAS CHARGED 4 HOURS OF ANNUAL LEAVE BECAUSE HE DID NOT
REPORT FOR WORK ON FRIDAY AFTERNOON. HE IS ENTITLED TO THE RESTORATION
OF ANNUAL LEAVE CHARGED SINCE, BEING ENTITLED TO A NORMAL PERIOD OF
REST, HE COULD HAVE REMAINED OVER-NIGHT IN CALIFORNIA AND RETURNED TO
HIS OFFICIAL STATION DURING NORMAL WORKING HOURS ON FRIDAY.
FELIX H. CAUDILL - REST PERIOD FOLLOWING LONG PERIOD OF TRAVEL:
BY LETTER OF MAY 10, 1974, A REQUEST WAS MADE BY AN ACCOUNTING AND
FINANCE OFFICER FOR A DECISION CONCERNING THE ENTITLEMENT OF MR. FELIX
H. CAUDILL, AN EMPLOYEE OF THE DEFENSE SUPPLY AGENCY, TO THE RESTORATION
OF 4 HOURS OF ANNUAL LEAVE CHARGED FOR HIS ABSENCE FROM REGULAR DUTY ON
FRIDAY AFTERNOON, APRIL 12, 1974.
MR. CAUDILL WAS ORDERED TO TRAVEL FROM HIS RESIDENCE IN COLONIAL
HEIGHTS, VIRGINIA, TO MONTEREY, CALIFORNIA, AND RETURN, TO ATTEND THE
DEFENSE MANAGEMENT SYSTEM COURSE. THE COURSE WAS COMPLETED ON THURSDAY,
APRIL 11, 1974, ONE DAY EARLIER THAN WAS ANTICIPATED. THE EMPLOYEE
CHOSE TO DEPART FROM MONTEREY THAT DAY, LEAVING AT 7:30 P.M. AND
ARRIVING AT HIS RESIDENCE IN COLONIAL HEIGHTS, VIRGINIA, AT 11:15 A.M.
THE FOLLOWING DAY, FRIDAY, APRIL 12. SINCE APRIL 12 WAS IN HIS NORMAL
TOUR OF DUTY, HE WAS ADMINISTRATIVELY CHARGED FOR 4 HOURS OF ANNUAL
LEAVE FOR THE AFTERNOON OF THAT DAY WHEN HE DID NOT PERFORM HIS REGULAR
DUTIES. MR. CAUDILL REQUESTS THE RESTORATION OF THE 4 HOURS OF ANNUAL
LEAVE.
ALTHOUGH CHARGES OF LEAVE ARE PRIMARILY MATTERS FOR THE AGENCY'S
ADMINISTRATIVE OFFICE, OUR OFFICE WILL IN AN APPROPRIATE FACTUAL
SITUATION DISAPPROVE AN UNWARRANTED CHARGE OF ANNUAL LEAVE. 39 COMP.
GEN. 250 251. REGARDING THE TIME OF TRAVEL 5 CFR 610.123 PROVIDES THAT
INSOFAR AS PRACTICABLE TRAVEL DURING NONDUTY HOURS WILL NOT BE REQUIRED
OF AN EMPLOYEE. IN THIS CONNECTION WE HELD IN 51 COMP. GEN. 364 (1971),
THAT AN EMPLOYEE ATTENDING A CONFERENCE IN CHICAGO WHICH ENDED AT 4 P.M.
ON A FRIDAY COULD DELAY HIS RETURN TRIP TO LOS ANGELES UNTIL THE NEXT
MORNING WHERE THE TRAVEL WOULD REQUIRE 6 HOURS. MOREOVER, IT HAS BEEN
HELD THAT THE TRAVEL REGULATIONS ARE NOT ORDINARILY REGARDED AS
REQUIRING TRAVEL DURING PERIODS OF REST IF SLEEPING ACCOMMODATIONS ARE
NOT AVAILABLE. B-164709, AUGUST 1, 1968.
IN CASES INVOLVING LONG FLIGHTS AND THE RIGHT TO REASONABLE HOURS OF
REST, EACH CASE MUST BE DECIDED ON ITS OWN MERITS. B-164709, SUPRA. IN
THE INSTANT CASE MR. CAUDILL PERFORMED TEMPORARY DUTY AT MONTEREY,
CALIFORNIA, ON APRIL 11 AND TRAVELED HOME DURING THE NIGHT WITHOUT THE
BENEFIT OF SLEEPING ACCOMMODATIONS. ALSO, THE RECORD INDICATES THAT MR.
CAUDILL COULD HAVE STAYED IN CALIFORNIA THE NIGHT OF APRIL 11 AT
GOVERNMENT EXPENSE AND TRAVELED HOME ON APRIL 12. IF HE HAD DONE SO, IT
APPEARS THAT HE WOULD HAVE BEEN IN TRAVEL STATUS DURING HIS NORMAL
WORKING HOURS. UNDER THE CIRCUMSTANCES OF THIS CASE THE REST PERIOD ON
FRIDAY AFTERNOON MAY BE CONSIDERED TO BE IN PLACE OF THE OVERNIGHT STAY
IN CALIFORNIA TO WHICH MR. CAUDILL WAS ENTITLED. THEREFORE, THE 4 HOURS
OF ANNUAL LEAVE CHARGED TO HIM SHOULD BE RESTORED.
B-182025, AUG 23, 1974
HEADNOTES-UNAVAILABLE
PROTEST FILED 7 WORKING DAYS AFTER BASIS OF PROTEST WAS KNOWN IS
UNTIMELY UNDER SECTION 20.2(A) OF THE INTERIM BID PROTEST PROCEDURES AND
STANDARDS REQUIRING PROTEST BE FILED WITHIN 5 WORKING DAYS OF DATE BASIS
OF PROTEST WAS KNOWN OR SHOULD HAVE BEEN KNOWN.
HEALTH RESEARCH & INFORMATION SERVICES, INC.:
THIS IS A PROTEST AGAINST AN AWARD TO ASPEN SYSTEMS CORPORATION UNDER
CONTRACT NO. RFP HRA-106-217(4), ISSUED BY THE DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE, PUBLIC HEALTH SERVICE, HEALTH RESOURCES
ADMINISTRATION. HEALTH RESEARCH & INFORMATION SERVICES, INC. (HR&IS)
ALLEGES THAT ITS PROPOSED PRICE WAS LOWER THAN THE AWARDEE'S, AND OTHER
CAPABILITIES BEING EQUAL, THEREFORE, SHOULD HAVE RECEIVED THE AWARD.
THE RECORD INDICATES THAT HR&IS WAS INFORMED OF THE ABOVE MENTIONED
AWARD ON AUGUST 2, 1974. THE PROTEST TO OUR OFFICE WAS RECEIVED ON
AUGUST 13, 1974, 7 WORKING DAYS AFTER HR&IS LEARNED OF THE BASIS FOR
PROTEST. SECTION 20.2(A) OF OUR "INTERIM BID PROTEST PROCEDURES AND
STANDARDS" PROVIDES "*** BID PROTESTS SHALL BE FILED OUT LATER THAN 5
DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN,
WHICHEVER IS EARLIER." THEREFORE, THE PROTEST IS UNTIMELY AND WILL NOT
BE CONSIDERED BY OUR OFFICE ON ITS MERITS.
B-140389, AUG 21, 1974
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
CAPTAIN L. E. HOPKINS:
WE REFER TO YOUR LETTER DATED JUNE 26, 1974, WITH ENCLOSURES,
FURNISHING FOR OUR REVIEW AND COMMENT PROPOSED CHANGES TO ASPR POLCIY
AND PROCEDURES TO ENCOMPASS THE FINANCIAL ACCOUNTING FOR
GOVERNMENT-OWNED PROPERTY IN THE POSSESSION OF CONTRACTORS AS CONTAINED
IN ASPR APPENDICES B AND C AND ASPR SUPPLEMENT 3.
THE PROPOSED CHANGES RESULTED FROM REPORTS BY GAO AND DOD AUDITORS
RECOMMENDING THE NEED FOR STRONGER FINANCIAL CONRTROLS OVER
GOVERNMENT-OWNED PROPERTY IN THE POSSESSION OF CONTRACTORS. DURING 1971
AND 1972 REPRESENTATIVES OF A DOD TASK GROUP CONSULTED WITH VARIOUS
INDUSTRY REPRESENTATIVES IN ATTEMPTING TO DEVELOP PROPOSALS FOR
FINANCIAL RECORDKEEPING BY CONTRACTORS IN ADDITION TO THE PRESENT
PHYSICAL ITEM ACCOUNTABILITY MAINTAINED OVER GOVERNMENT-OWNED PROPERTY
WHICH IN ITSELF HAS NOT BEEN CONSIDERED TOTALLY SATISFACTORY.
THE RESULTANT PROPOSED CHANGES INCLUDE: (1) THE ESTABLISHMENT BY
CONTRACTORS OF FINANCIAL CONTROL AND SUBSIDIARY ACCOUNTS BY CONTRACT FOR
EACH DOD AGENCY FOR ALL TYPES OF GOVERNMENT-OWNED PROPERTY, EXCLUDING
REAL PROPERTY AND MATERIAL; (2) THE QUARTERLY RECONCILIATION OF
PHYSICAL ITEM PROPERTY RECORDS WITH THE FINANCIAL CONTROL AND SUBSIDIARY
ACCOUNTS FOR EACH CONTRACT; (3) REVIEW BY THE DEFENSE COUNTRACT AUDIT
AGENCY FOR EACH CONTRACTOR'S ACCOUNTS, SYSTEMS, AND PROCEDURES FOR
ADEQUATE FINANCIAL CONTROL OF GOVERNMENT-OWNED PROPERTY; AND (4) A
MAXIMUM ONE-YEAR PERIOD FOR TOTAL IMPLEMENTATION OF THE PROPOSED NEW
REQUIREMENTS INCLUDING THE SPECIFIC MODIFICATION OF APPLICABLE EXISTING
CONTRACTS TO PROVIDE FOR AND CARRY OUT THE REQUIRED FINANCIAL
ACCOUTNING.
WE HAVE NO FURTHER COMMENTS TO OFFER REGARDING THE PROPOSED CHANGES.
B-179858, AUG 21, 1974
HEADNOTES-UNAVAILABLE
1. WHEN RECORD SHOWS THAT MARRIED SERVICE MEMBER, WHO WAS MISSING IN
ACTION IN JANUARY 1968, WAS DETERMINED IN MAY 1973 TO HAVE DIED IN
JANUARY 1968, AND THAT WITHOUT OBTAINING A DIVORCE HIS SPOUSE WENT
THROUGH A SECOND MARRIAGE CEREMONY WITH ANOTHER MAN IN JUNE 1970, THE
MEMBER'S PARENTS ARE NOT ENTITLED TO THE SIX MONTHS' DEATH GRATUITY
UNDER 10 U.S.C. 1447(A) BECAUSE THE MEMBER WAS SURVIVED BY A SPOUSE.
2. WHEN RECORD SHOWS THAT SERVICE MEMBER, WHO WAS MISSING IN ACTION
IN JANUARY 1968, WAS DETERMINED IN MAY 1973, TO HAVE DIED IN JANUARY
1968, AND THAT HE SPECIFICALLY DESIGNATED HIS SPOUSE AS BENEFICIARY TO
RECEIVE 100 PERCENT OF THE DECEASED MEMBER'S UNPAID PAY AND ALLOWANCES,
THE MEMBER'S PARENTS ARE NOT ENTITLED TO THIS AMOUNT UNDER 10 U.S.C.
2771 SINCE A DESIGNATED BENEFICIARY IS ALWAYS THE PREFERRED RECIPIENT,
THAT DESIGNATION BEING THE HIGHEST ON THE LIST OF ELIGIBLE
BENEFICIARIES.
3. THE ARGUMENT RAISED BY PARENTS OF A DECEASED MEMBER WHO ARE
CLAIMING THE DEATH GRATUITY AND UNPAID PAY AND ALLOWANCES DUE IN THE
ACCOUNT OF THEIR LATE SON THAT GENERAL ACCOUNTING OFFICE HAS NO
AUTHORITY TO RENDER A DECISION AS TO WHO IS ENTITLED TO SUCH AMOUNTS IS
WITHOUT MERIT SINCE 31 U.S.C. 71 PROVIDES THAT ALL CLAIMS BY OR AGAINST
THE UNITED STATES SHALL BE ADJUSTED AND SETTLED IN THE GAO AND 31 U.S.C.
74 SPECIFICALLY AUTHORIZES DISBURSING OFFICERS TO REQUEST AND THE
COMPTROLLER GENERAL TO RENDER DECISIONS UPON QUESTIONS INVOLVING
PAYMENTS WHICH DECISIONS ARE FINAL AND CONCLUSIVE ON THE EXECUTIVE
BRANCH.
CLAIM FOR DEATH GRATUITY AND UNPAID PAY AND ALLOWANCES - SSG RICHARD
R. REHE, DECEASED:
THIS ACTION IS IN RESPONSE TO LETTERS DATED JUNE 5 AND JULY 11, 1974,
WITH ENCLOSURES, FROM MR. WILLIAM K. REHE, REQUESTING RECONSIDERATION
OF OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT DATED APRIL 5,
1974, WHICH DISALLOWED HIS CLAIM AND THAT OF MRS. REHE, AS PARENTS, FOR
THE SIX MONTHS' DEATH GRATUITY AND UNPAID PAY AND ALLOWANCES DUE IN THE
CASE OF THEIR LATE SON, STAFF SERGEANT RICHARD R. REHE, USA, SSAN
000-00-7325, WHO WAS PRESUMED TO HAVE DIED ON JANUARY 10, 1968, FOR THE
REASON THAT UNDER THE LAWS GOVERNING PAYMENT OF THE MONIES DUE THEY WERE
NOT THE APPROPRIATE DISTRIBUTEES.
MR. AND MRS. REHE TAKE THE POSITION THAT THEY AND NO OTHER PERSON OR
PERSONS ARE ENTITLED TO THESE MONIES, CONTENDING THAT BARBARA JO REHE
HOUSER DOES NOT QUALIFY AS THE SURVIVING SPOUSE OF SERGEANT REHE AS
INDICATED BY THE FOLLOWING LANGUAGE FROM THE LETTER DATED JUNE 5, 1974:
"THE FACT THAT BARBARA JO REHE TOOK UPON HERSELF TO MAKE THE DECISION
TO REMARRY NOT BEING SURE AT THAT DATE THAT OUR SON WAS DEAD OR ALIVE
ESTABLISHES BEYOND A REASONABLE DOUBT THAT SHE *** SEPARATED, DECLARED,
AND DISCLAIMED ANY CLAIM AGAINST THE ESTATE OF MY SON."
ALSO IN THAT SAME LETTER, MR. REHE STATES THAT THE GENERAL ACCOUNTING
OFFICE "IS NOT A BODY WHICH CAN RENDER A LEGAL POSITION" AND THAT
"MATTERS OF THIS NATURE ARE RESTRICTED TO A CIVIL COURT OR MILITARY
COURT."
WITH RESPECT TO THE PAYMENT OF A DEATH GRATUITY AND UNPAID PAY AND
ALLOWANCES WHICH BECOME DUE INCIDENT TO THE DEATH OF A MEMBER OF THE
ARMED SERVICES, SECTION 71 OF TITLE 31, UNITED STATES CODE, SETS FORTH
THE JURISDICTION OF THIS OFFICE. THAT SECTION PROVIDES GENERALLY THAT
ALL CLAIMS BY OR AGAINST THE UNITED STATES SHALL BE ADJUSTED AND SETTLED
IN THE GENERAL ACCOUNTING OFFICE. UNDER THE PROVISION OF SECTION 74 OF
THE SAME TITLE, DISBURSING OFFICERS OR THE HEAD OF ANY EXECUTIVE
DEPARTMENT MAY APPLY FOR AND THE COMPTROLLER GENERAL SHALL RENDER HIS
DECISION UPON ANY QUESTION INVOLVING A PAYMENT TO BE MADE BY THEM OR
UNDER THEM, WHICH DECISION, WHEN RENDERED SHALL GOVERN THE GENERAL
ACCOUNTING OFFICE IN PASSING UPON THE ACCOUNT CONTAINING SAID
DISBURSEMENT. FURTHER THAT SUCH DECISION SHALL BE FINAL AND CONCLUSIVE
UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT.
AS TO THE MATTER OF THE DEATH GRATUITY AND UNPAID PAY AND ALLOWANCES
DUE IN THE PRESENT CASE, THE MATTER WAS PROPERLY SUBMITTED FOR
ADJUDICATION TO THE TRANSPORTATION AND CLAIMS DIVISION OF THE GENERAL
ACCOUNTING OFFICE ON AUGUST 29, 1973, BY A DISBURSING OFFICER AT THE
UNITED STATES ARMY FINANCE SUPPORT AGENCY WHO WAS CHARGED WITH THE
RESPONSIBILITY FOR MAKING THE PROPER PAYMENT. PURSUANT TO THE
BEFORE-MENTIONED STATUTORY AUTHORITY SETTLEMENT INSTRUCTIONS WERE
APPROPRIATELY ISSUED TO THE DISBURSING OFFICER IN QUESTION AND PAYMENT
MADE BY THE DISBURSING OFFICER IN RELIANCE WITH THOSE INSTRUCTIONS.
THE FILE INDICATES THAT THE DECEASED MEMBER MARRIED BARBARA JO ABBOTT
ON SEPTEMBER 30, 1966. ON FEBRUARY 7, 1967, SERGEANT REHE ENTERED
ACTIVE DUTY IN THE UNITED STATES ARMY. ON THE RECORD OF EMERGENCY DATA
FORM (DA FORM 41) EXECUTED BY THE MEMBER ON JULY 21, 1967, SERGEANT REHE
DESIGNATED BARBARA JO REHE TO RECEIVE 100 PERCENT OF HIS UNPAID PAY AND
ALLOWANCES AND IN THE PLACE RESERVED ON THAT FORM TO DESIGNATE THE
BENEFICIARY OR BENEFICIARIES FOR THE SIX MONTHS' DEATH GRATUITY PAY IF
NO SURVIVING SPOUSE OR CHILD HE INDICATED "NONE." ON JANUARY 9, 1968,
SERGEANT REHE WAS REPORTED CAPTURED AND ON MAY 24, 1973, THE DEPARTMENT
OF THE ARMY RECEIVED EVIDENCE THAT SERGEANT REHE HAD DIED ON JANUARY 10,
1968.
ALTHOUGH IT APPEARS THAT BARBARA JO REHE NEVER OBTAINED A DIVORCE
FROM SERGEANT REHE, SHE WENT THROUGH A CEREMONIAL MARRIAGE WITH MR.
ROBERT LEROY HOUSER ON JUNE 5, 1970. BY LETTER DATED JULY 31, 1970,
BARBARA JO REHE HOUSER RETURNED SEVERAL MILITARY CHECKS AND ALLOTMENT
CHECKS TO THE UNITED STATES ARMY FINANCE SUPPORT AGENCY AND REQUESTED
THAT THEY HOLD THE CHECKS AND ALL FUTURE CHECKS IN TRUST UNTIL FURTHER
NOTICE FROM HER.
SECTION 1475 OF TITLE 10, UNITED STATES CODE, PROVIDES FOR A DEATH
GRATUITY TO BE PAID TO OR FOR THE SURVIVOR PRESCRIBED BY SECTION 1477
UPON RECEIPT OF OFFICIAL NOTIFICATION OF THE DEATH OF A MEMBER OF THE
ARMED FORCES WHO DIES WHILE SERVING ON ACTIVE DUTY. SECTION 1477
DIRECTS PAYMENT TO BE MADE TO OR FOR THE LIVING SURVIVOR HIGHEST ON THE
FOLLOWING LIST: (1) SURVIVING SPOUSE; (2) CHILDREN, IN EQUAL SHARES;
(3) CERTAIN PERSONS IF DESIGNATED BY THE MEMBER; (4) PARENTS IN EQUAL
SHARES.
IT IS OUR VIEW THAT IN A CASE WHERE A SPOUSE REMARRIES PRIOR TO THE
PRESUMPTIVE DATE OF THE MEMBER'S DEATH THE REMARRIAGE ITSELF DOES NOT
NECESSARILY RAISE A PRESUMPTION THAT THE MARRIAGE TO THE DECEASED MEMBER
WAS TERMINATED BY A DIVORCE. IF THE MISSING PERSON WAS IN FACT DEAD AT
THE TIME OF THE SPOUSE'S SUBSEQUENT MARRIAGE, THEN CLEARLY SUCH SPOUSE
IS THE SURVIVING SPOUSE; IF THE MISSING PERSON WAS NOT DEAD AT THE TIME
OF THE SPOUSE'S SUBSEQUENT MARRIAGE, THEN ONLY THE VALIDITY OF THE
SECOND MARRIAGE WOULD BE AFFECTED THEREBY.
SINCE THE RECORD INDICATES THAT AT THE TIME OF BARBARA JOE REHE'S
MARRIAGE IN 1970, SERGEANT REHE WAS IN FACT DEAD AND THERE IS NOTHING IN
THE RECORD TO SHOW THAT THE MARRIAGE TO THE DECEASED MEMBER HAD BEEN
TERMINATED BY DIVORCE PRIOR TO THAT DATE, IT IS OUR VIEW THAT SHE
QUALIFIES AS THE SURVIVING SPOUSE AND IS ENTITLED TO THE DEATH GRATUITY.
WITH REGARD TO DISTRIBUTION OF THE UNPAID PAY AND ALLOWANCES DUE THE
MEMBER ON THE DATE OF THE OFFICIAL DETERMINATION OF DEATH, SUBSECTION
2771(A) OF TITLE 10, UNITED STATES CODE, PROVIDES IN PERTINENT PART THAT
IN THE FINAL SETTLEMENT OF ACCOUNTS OF A DECEASED MEMBER WHO DIES AFTER
DECEMBER 31, 1955, THE AMOUNT DUE SHALL BE PAID TO THE PERSON HIGHEST ON
THE FOLLOWING LIST LIVING ON THE DATE OF THE MEMBER'S DEATH:
"(1) BENEFICIARY DESIGNATED BY HIM IN WRITING TO RECEIVE SUCH AMOUNT,
IF THE DESIGNATION IS RECEIVED, BEFORE THE DECEASED MEMBER'S DEATH, AT
THE PLACE NAMED IN REGULATIONS TO BE PRESCRIBED BY THE SECRETARY
CONCERNED.
"(2) SURVIVING SPOUSE.
"(4) FATHER AND MOTHER IN EQUAL PARTS ***."
UNDER THE LANGUAGE OF THE ABOVE-QUOTED PROVISION, A MEMBER IS
PERMITTED TO DESIGNATE THE PERSON OR PERSONS TO RECEIVE THE PAY AND
ALLOWANCES DUE HIM AT THE DATE OF DEATH, WITHOUT REGARD TO A
CONSIDERATION OF FAMILY OR DEPENDENCY RELATIONSHIPS. INASMUCH AS THE
PREFERRED PERSON ENTITLED TO THE AMOUNT DUE IN A DECEASED SERVICEMAN'S
PAY AND ALLOWANCE ACCOUNT IS THE BENEFICIARY DESIGNATED BY HIM, PAYMENT
OF SUCH AMOUNT TO ANY PERSON OTHER THAN THE PERSON IDENTIFIED AS THE
DESIGNATED BENEFICIARY IS NOT AUTHORIZED. SEE B-177572, APRIL 26, 1973.
IN THE PRESENT CASE, SINCE SERGEANT REHE SPECIFICALLY DESIGNATED
BARBARA JO REHE AS BENEFICIARY TO RECEIVE ALL OF THE UNPAID PAY AND
ALLOWANCES DUE HIM AT HIS DEATH, IT IS OUR VIEW THAT SHE IS ENTITLED TO
RECEIVE THOSE MONIES.
ACCORDINGLY, THE ACTION TAKEN BY OUR TRANSPORTATION AND CLAIMS
DIVISION IS SUSTAINED.
B-180184, AUG 21, 1974
HEADNOTES-UNAVAILABLE
AIR FORCE MEMBER WHO SHIPPED HOUSEHOLD EFFECTS IN EXCESS OF
AUTHORIZED ALLOWABLE WEIGHT MAY NOT BE RELIEVED OF LIABILITY TO AIR
FORCE SINCE IT IS WELL SETTLED THAT GOVERNMENT IS NOT BOUND BY INCORRECT
STATEMENTS OF ITS AGENTS AND EMPLOYEES. FURTHER SINCE EXCESS WEIGHT IS
AN ADMINISTRATIVE DETERMINATION MADE BY A DESIGNATED OFFICER, THIS
OFFICE WOULD NOT BE WARRANTED IN QUESTIONING SUCH DETERMINATION WITHOUT
CLEAR EVIDENCE OF ERROR.
INDEBTEDNESS TO THE AIR FORCE INCURRED IN PERMANENT CHANGE OF STATION
HOUSEHOLD GOODS SHIPMENT - CARL H. LIPPOLD, JR.:
THIS ACTION IS IN RESPONSE TO A REQUEST FOR RECONSIDERATION OF OUR
TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT OF MARCH 3, 1971, WHICH
DISALLOWED THE CLAIM OF CARL H. LIPPOLD, JR. FOR RELIEF FROM
INDEBTEDNESS TO THE AIR FORCE FOR EXCESS COST IN THE AMOUNT OF $795.80
INCURRED IN SHIPPING HOUSEHOLD GOODS INCIDENT TO A PERMANENT CHANGE OF
STATION WHILE SERVING IN THE UNITED STATES AIR FORCE IN 1962.
THE RECORD SHOWS THAT BY SPECIAL ORDERS NO. A-203, DATED APRIL 14,
1962, ISSUED BY HEADQUARTERS, 6143D AIR BASE GROUP (PACAF), UNITED
STATES AIR FORCE, APO 929, SAN FRANCISCO, CALIFORNIA, THE MEMBER WAS
REASSIGNED FROM BRADY AIR FORCE BASE, JAPAN, TO THE 6590TH SPECIAL
ACTIVITIES SQUADRON AT ANDREWS AIR FORCE BASE, MARYLAND. THE ORDERS
PROVIDED FOR THE TRANSPORTATION OF THE MEMBER'S DEPENDENTS AND THE
SHIPMENT OF HIS HOUSEHOLD GOODS AT GOVERNMENT EXPENSE.
THE RECORD FURTHER SHOWS THAT THE MEMBER SHIPPED 10,250 POUNDS ON
GOVERNMENT BILL OF LADING B-2744069 DATED JUNE 21, 1962, FROM BRADY AIR
FORCE BASE, JAPAN, BY DELCHER INTERCONTINENTAL MOVING SERVICE. THE
GOODS ARRIVED IN BALTIMORE, MARYLAND, ON AUGUST 13, 1962, AND WERE PUT
IN STORAGE UNTIL SEPTEMBER 4, 1962, WHEN THEY WERE DELIVERED TO THE
MEMBER'S RESIDENCE IN WASHINGTON, D.C.
THE INDEBTEDNESS AROSE DUE TO THE EXCESS COST INCURRED WHEN THE
HOUSEHOLD GOODS SHIPPED WERE IN EXCESS OF THE WEIGHT LIMITATIONS
AUTHORIZED BY THE JOINT TRAVEL REGULATIONS FOR A MEMBER OF THE ARMED
FORCES OF HIS GRADE OR RATING. THE NET WEIGHT OF THE GOODS SHIPPED WAS
10,250 POUNDS LESS 526 POUNDS OF PROFESSIONAL ITEMS AND 486 POUNDS OF
PACKING WHICH EQUALS 9,238 POUNDS. THE MEMBER AT THE TIME WAS A FIRST
LIEUTENANT AND WAS AUTHORIZED TO TRANSPORT 7,500 POUNDS UNDER PARAGRAPH
M8003 OF THE JOINT TRAVEL REGULATIONS (CH. 110, DECEMBER 1, 1961). THE
NET WEIGHT OF 9,238 POUNDS MINUS THE AUTHORIZED ALLOWANCE OF 7,500
POUNDS LEAVES AN EXCESS OF 1,738 POUNDS. IN ADDITION, 91 POUNDS OF
PACKING WERE ADDED TO THE NET EXCESS WEIGHT FOR A TOTAL EXCESS WEIGHT OF
1,829 POUNDS. THE TOTAL COST OF $4,459.78 FOR 10,250 POUNDS WHEN
PRORATED TO 1,829 POUNDS YIELDS AN EXCESS SHIPMENT COST OF $795.80.
THIS EXCESS SHIPMENT COST IS THE AMOUNT OF THE INDEBTEDNESS TO THE
UNITED STATES.
THE MEMBER CONTENDS THAT HE RELIED ON ADVICE OF PROFESSIONAL
TRANSPORTATION EMPLOYEES SENT TO HIM BY AIR FORCE REPRESENTATIVES AND
THAT THE MEMBER, BASED ON ADVICE RECEIVED, DESTROYED OR DISCARDED
CERTAIN ITEMS IN ORDER TO PERMIT HIM TO COME WITHIN WHAT HE WAS TOLD WAS
THE AUTHORIZED WEIGHT LIMITATION. THE MEMBER FURTHER CONTENDS THAT HE
WAS ENTITLED TO RELY ON THE PROFESSIONAL OPINION OF THE AIR FORCE AGENTS
AND EMPLOYEES AND THAT ANY EXCESS POUNDAGE WAS NOT DUE TO HIS FAULT BUT
WAS THE FAULT OF THESE AGENTS. FURTHER, THAT THE AIR FORCE SHOULD NOT
DEMAND THAT HE ASSUME LIABILITY DUE TO A SITUATION CREATED BY THE
IMPROPER ADVICE OF ITS AGENTS AND EMPLOYEES.
SECTION 406 OF TITLE 37, UNITED STATES CODE, PROVIDES THAT UNDER SUCH
CONDITIONS AND LIMITATIONS AS THE SECRETARIES CONCERNED MAY PRESCRIBE, A
MEMBER OF A UNIFORMED SERVICE SHALL BE ENTITLED TO TRANSPORTATION OF
HOUSEHOLD GOODS IN CONNECTION WITH A CHANGE OF STATION.
PARAGRAPH M8002 OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT
TO THAT AUTHORITY PROVIDES THAT HOUSEHOLD GOODS OF MEMBERS, NOT IN
EXCESS OF THE WEIGHT LIMIT IN POUNDS THEREIN PRESCRIBED, MAY BE
TRANSPORTED AT GOVERNMENT EXPENSE IN ACCORDANCE WITH THE PROVISIONS OF
THESE REGULATIONS. PARAGRAPH M8002 ALSO PROVIDES THAT IF GOODS ARE
SHIPPED BY MOTOR VAN IN AN UNCRATED CONDITION THE NET WEIGHT OF THE
GOODS CHARGEABLE AGAINST THE MEMBER'S PRESCRIBED WEIGHT ALLOWANCE WILL
BE DETERMINED BY SUBTRACTING 5 PERCENT FROM THE GROSS WEIGHT OF THE
SHIPMENT.
THE REGULATIONS CONTEMPLATE SHIPMENT AT GOVERNMENT EXPENSE OF
HOUSEHOLD GOODS, AS PACKED FOR SHIPMENT, AT THE NOT TO EXCEED AN OVERALL
WEIGHT ALLOWANCE OF NET WEIGHT PLUS AN ALLOWANCE FOR PACKING AND
CRATING. SUCH OVERALL WEIGHT ALLOWANCE, OF WHICH THE NET WEIGHT OF THE
HOUSEHOLD GOODS IS BUT ONE COMPONENT PART, REPRESENTS THE MAXIMUM WEIGHT
THAT MAY BE SHIPPED AT GOVERNMENT EXPENSE IRRESPECTIVE OF WHETHER THE
ACTUAL NET WEIGHT OF THE GOODS SHIPPED EQUALS THE NET WEIGHT ALLOWANCE
SET FORTH IN THE REGULATIONS. THE REGULATIONS FURTHER PROVIDE THAT
WHERE SHIPMENTS INVOLVE WEIGHTS EXCEEDING THE PRESCRIBED ALLOWANCE, THE
TRANSPORTATION CHARGES ON SUCH EXCESS WEIGHTS WILL BE BORNE BY THE
OWNER.
CONCERNING THE ALLEGED ERRONEOUS INFORMATION GIVEN THE MEMBER BY
AGENTS OF THE AIR FORCE, IT IS WELL SETTLED THAT THE GOVERNMENT IS NOT
BOUND NOR RESPONSIBLE FOR THE UNAUTHORIZED OR INCORRECT STATEMENTS OF
ITS AGENTS AND EMPLOYEES. POSEY V. UNITED STATES, 449 F.2D 228, 234
(1971). ALL GOVERNMENT AGENTS AND EMPLOYEES ARE SPECIAL AGENTS OF
LIMITED AUTHORITY AND ALL PERSONS DEALING WITH SUCH AGENTS AND EMPLOYEES
ARE CHARGED WITH NOTICE OF THAT FACT AND OF THE LIMITATIONS UPON THE
AUTHORITY OF THE AGENTS WITH WHOM THEY DEAL. UNITED STATES V.
THOMPSON, 293 F. SUPP 1307 (1967), AFFIRMED 408 F.2D 1075 (1969).
THE MEMBER ALSO CONTENDS THAT THE AMOUNT OF THE DEBT, WHICH IS BASED
ON THE NET EXCESS WEIGHT, IS INCORRECT. PARAGRAPH M8400-5 OF THE JOINT
TRAVEL REGULATIONS, IN EFFECT DURING THE TIME INVOLVED, PROVIDED THAT
THE OFFICER DESIGNATED BY THE SERVICE CONCERNED WOULD DETERMINE ANY COST
IN EXCESS OF AUTHORIZED ALLOWANCES FOR WEIGHT, DISTANCE, AND METHOD OF
SHIPMENT AND WOULD NOTIFY THE MEMBER OF THE AMOUNT PAYABLE AND METHOD OF
PAYMENT. IT FURTHER PROVIDED THAT AMOUNTS DETERMINED BY PERSONS OTHER
THAN SUCH DESIGNATED OFFICER WILL BE CONSIDERED AS MERE ESTIMATES NOT TO
BE USED TO DISPUTE THE AMOUNTS DETERMINED BY HIM. THUS, THE QUESTION AS
TO WHAT EXTENT THE WEIGHT OF THE MEMBER'S HOUSEHOLD EFFECTS EXCEEDED HIS
WEIGHT ALLOWANCE IS A MATTER PRIMARILY FOR ADMINISTRATIVE DETERMINATION
WHICH THIS OFFICE WOULD NOT BE WARRANTED IN QUESTIONING IN THE ABSENCE
OF THE CLEAREST EVIDENCE OF ERROR. SEE B-156396, JUNE 8, 1965.
THE RECORD INDICATES THAT THE TRANSPORTATION OFFICER AT ANDREWS AIR
FORCE BASE PERSONALLY REWEIGHED THE SHIPMENT UPON ITS ARRIVAL. HE
CONCLUDED THAT THE SHIPMENT WAS IN EXCESS OF THE AUTHORIZED ALLOWABLE
WEIGHT AND SO INFORMED THE MEMBER. HE ALSO CONCLUDED THAT THERE WAS NO
EXCESS PACKING. UNDER THE ESTABLISHED DEBT COLLECTION PROCEDURES, IT IS
THE RESPONSIBILITY OF EACH AGENCY OF THE GOVERNMENT TO TAKE ALL
REASONABLE STEPS TO COLLECT DEBTS ARISING IN THAT AGENCY BEFORE
REPORTING THEM AS UNCOLLECTABLE. GENERAL REGULATION NO. 120, 33 COMP.
GEN. 667 AND 669 (1954). THE DEPARTMENT OF THE AIR FORCE HAS NOT
REFERRED THE MEMBER'S INDEBTEDNESS HERE FOR COLLECTION AND UNTIL THE
DEBT IS REPORTED HERE, IT IS A MATTER FOR SETTLEMENT BETWEEN THE MEMBER
AND AIR FORCE DISBURSING OFFICE CONCERNED.
SINCE THE HOUSEHOLD GOODS SHIPPED TO ANDREWS AIR FORCE BASE,
MARYLAND, EXCEEDED THE MEMBER'S AUTHORIZED WEIGHT ALLOWANCE, HE WAS
PROPERLY CHARGED WITH THE EXCESS COST AND THERE IS NO BASIS ON THE
RECORD BEFORE US TO RELIEVE THE MEMBER OF HIS INDEBTEDNESS.
ACCORDINGLY, THE ACTION TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION
DATED MARCH 3, 1971, IS SUSTAINED.
B-180806, AUG 21, 1974
HEADNOTES-UNAVAILABLE
FIELD EXAMINERS OF THE NATIONAL CREDIT UNION ADMINISTRATION WHO
ATTEND REGIONAL EXAMINER CONFERENCES CONDUCTED AT THEIR HEADQUARTERS MAY
NOT BE REIMBURSED FOR MEALS TAKEN AT THE CONFERENCES EVEN THOUGH THEY
WERE INFLUENCED BY THEIR SUPERIORS TO STAY ON AND TAKE PART IN EVENING
MEALS AT LATE CONFERENCE SESSIONS SINCE IN ABSENCE OF SPECIFIC STATUTORY
AUTHORITY ALLOWING REIMBURSEMENT, THE GOVERNMENT MAY NOT PAY FOR MEALS
OF CIVILIAN EMPLOYEES AT THEIR HEADQUARTERS.
NATIONAL CREDIT UNION ADMINISTRATION - MEALS AT HEADQUARTERS:
THIS ACTION IS AT THE REQUEST OF MR. HERMAN NICKERSON, JR.,
ADMINISTRATOR OF THE NATIONAL CREDIT UNION ADMINISTRATION, FOR A
DECISION AS TO THE LEGALITY OF REIMBURSING FIELD EXAMINERS OF THE
NATIONAL CREDIT UNION ADMINISTRATION FOR MEALS TAKEN AT THEIR
HEADQUARTERS DURING FIELD EXAMINER CONFERENCES.
MR. NICKERSON STATES THAT FIELD EXAMINERS MAKE UP 62 PERCENT OF THE
NATIONAL CREDIT UNION ADMINISTRATION'S EMPLOYEES AND THAT THEY ARE
HEADQUARTERED IN NUMEROUS CITIES ACROSS THE COUNTRY. EACH YEAR REGIONAL
EXAMINER CONFERENCES OF SEVERAL DAYS DURATION ARE CONDUCTED WITH
EXAMINERS ATTENDING FROM VARIOUS STATES AND CITIES WITHIN THE REGION.
THE CONFERENCES ARE USUALLY HELD IN LARGE CITIES WHERE FIVE OR SIX
EXAMINERS LIVE. DURING THESE CONFERENCES, EVENING SESSIONS, GROUP
DINNER ARRANGEMENTS, AND INFORMAL REQUESTS BY THE REGIONAL DIRECTOR
INFLUENCE LOCAL EXAMINERS TO STAY OVER AND PARTICIPATE IN VARIOUS
ACTIVITIES RATHER THAN TO RETURN TO THEIR RESIDENCES AT THE END OF THE
DAY. IN THESE SITUATIONS LOCAL EXAMINERS PAY FOR THEIR EVENING MEALS
OUT OF THEIR OWN POCKETS, WHEREAS THE VISITING EXAMINERS ARE REIMBURSED
BY VIRTUE OF THEIR BEING ON PER DIEM SINCE THEY ARE IN TRAVEL STATUS.
MR. NICKERSON ASKS WHETHER THE ABOVE CONDITIONS JUSTIFY REIMBURSEMENT
TO THE LOCAL EXAMINERS FOR THEIR EVENING MEAL EXPENSES, AND IF NOT,
WHETHER THERE ARE ANY CONDITIONS WHICH WOULD JUSTIFY SUCH REIMBURSEMENT.
WE HAVE CONSISTENTLY HELD THAT IN THE ABSENCE OF SPECIFIC STATUTORY
AUTHORITY, THE GOVERNMENT MAY NOT PAY SUBSISTENCE EXPENSES OR PER DIEM
TO CIVILIAN EMPLOYEES AT THEIR HEADQUARTERS, REGARDLESS OF ANY UNUSUAL
WORKING CONDITIONS INVOLVED. 42 COMP. GEN. 149 (1962); B-169235, APRIL
6, 1970; B-169163, SEPTEMBER 11, 1970; B-159633, MAY 20, 1974. WE ARE
NOT AWARE OF ANY LAW WHICH WOULD ALLOW MEALS TO BE FURNISHED AT
GOVERNMENT EXPENSE TO THE LOCAL EXAMINERS UNDER THE FACTS AS REPORTED IN
THE SUBMISSION. MOREOVER, BASED ON THE FACTS SUBMITTED, WE ARE AWARE OF
NO CONDITIONS WHICH WOULD JUSTIFY SUCH REIMBURSEMENT.
ACCORDINGLY, THERE IS NO BASIS FOR GOVERNMENT REIMBURSEMENT FOR MEALS
OF REGIONAL EXAMINERS WHO TAKE PART IN THE REGIONAL EXAMINERS
CONFERENCES AT THEIR HEADQUARTERS.
B-181311, AUG 21, 1974
HEADNOTES-UNAVAILABLE
A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF DEFENSE, AUTHORIZED TO MOVE
HIS HOUSEHOLD GOODS BY GOVERNMENT BILL OF LADING INCIDENT TO A CHANGE OF
PERMANENT DUTY STATION FROM OHIO TO MICHIGAN, WHO RECEIVED INCORRECT
INFORMATION FROM A GOVERNMENT REPRESENTATIVE AND MOVED HIS GOODS BY
COMMERCIAL CARRIER INSTEAD, HAS NO BASIS UPON WHICH TO BE REIMBURSED FOR
THOSE MOVING EXPENSES WHICH EXCEED THE AMOUNT OF HIS ENTITLEMENT
DETERMINED ON A COMMUTED RATE BASIS.
ELTON L. SMALLEY - REIMBURSEMENT FOR SHIPMENT OF HOUSEHOLD GOODS:
THIS IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION AS TO THE
PROPRIETY OF REIMBURSING ELTON L. SMALLEY, A CIVILIAN EMPLOYEE OF THE
DEPARTMENT OF DEFENSE, THE ACTUAL EXPENSE INCURRED BY HIM FOR SHIPMENT
OF HOUSEHOLD EFFECTS INCIDENT TO HIS CHANGE OF PERMANENT DUTY STATION
FROM REYNOLDSBURG, OHIO, TO BATTLE CREEK, MICHIGAN, IN JANUARY 1974.
MR. SMALLEY'S TRAVEL ORDER AUTHORIZED THE TRAVEL TO BE PERFORMED
UNDER THE JOINT TRAVEL REGULATIONS (JTR) AND PARAGRAPH 17 OF THE TRAVEL
ORDER AUTHORIZED THE MOVEMENT OF HIS HOUSEHOLD EFFECTS BY GOVERNMENT
BILL OF LADING. INQUIRIES WERE MADE BY MR. SMALLEY AS TO THE
PROCEDURES TO BE FOLLOWED IN THE SHIPMENT OF HIS HOUSEHOLD GOODS, AND HE
WAS INFORMED THAT HE SHOULD MAKE THE NECESSARY ARRANGEMENTS WITH A MOVER
OF HIS CHOICE. THE ARRANGEMENTS WERE MADE AND MR. SMALLEY WAS
SUBSEQUENTLY BILLED BY THE MOVING COMPANY FOR $1,116.03. APPLYING THE
COMMUTED RATE SCHEDULE FOR TRANSPORTATION OF HOUSEHOLD GOODS AS REQUIRED
BY 5 U.S.C. SEC.5724(C), THE ADMINISTRATIVE ALLOWANCE FOR THIS
RELOCATION EXPENSE HAS BEEN COMPUTED TO BE $880.42.
MR. SMALLEY SEEKS ADDITIONAL REIMBURSEMENT IN THE AMOUNT OF $235.61,
THE BALANCE DUE TO THE COMMERCIAL MOVER. HE BELIEVES THAT HE IS BEING
PENALIZED FOR HAVING RECEIVED ERRONEOUS INFORMATION.
ALSO, HE BELIEVES THAT HE SHOULD BE REIMBURSED FOR THE TOTAL COST OF
THE MOVE ON THE BASIS THAT THE GOVERNMENT WOULD HAVE PAID THE TOTAL
AMOUNT FOR THE TRANSPORTATION OF HIS HOUSEHOLD GOODS HAD THE APPROPRIATE
ARRANGEMENTS BEEN MADE FOR SHIPMENT BY GOVERNMENT BILL OF LADING.
SECTION C7051-4 OF THE JTR, VOLUME 2, PROVIDES THAT, WHEN TRANSFER OF
HOUSEHOLD GOODS IS AUTHORIZED WITHIN THE CONTINENTAL UNITED STATES,
SHIPMENTS MAY BE MADE UNDER THE COMMUTED RATE SYSTEM OR THE ACTUAL
EXPENSE METHOD.
SECTION C7051-4C(4)(A) SETS FORTH THE CRITERIA FOR USE OF THE ACTUAL
EXPENSE METHOD TO BE USED BY COMPONENTS OF THE DEPARTMENT OF DEFENSE IN
INDIVIDUAL TRANSFERS OF HOUSEHOLD GOODS WITHIN THE CONTINENTAL UNITED
STATES AND PROVIDES AS FOLLOWS:
"(A) INDIVIDUAL TRANSFERS. EXPERIENCE WITH THE ACTUAL EXPENSE METHOD
HAS SHOWN THAT SHIPMENT BY GOVERNMENT BILL OF LADING DOES NOT RESULT IN
SAVINGS SIMPLY BECAUSE A LINE HAUL DISCOUNT IS AVAILABLE. THEREFORE, IN
CASE OF INDIVIDUAL TRANSFERS, THE COMMUTED RATE SYSTEM WILL BE USED
WITHOUT CONSIDERATION BEING GIVEN THE ACTUAL EXPENSE METHOD, EXCEPT THAT
THE ACTUAL EXPENSE METHOD MAY BE USED IF THE ACTUAL COSTS TO BE INCURRED
BY THE GOVERNMENT FOR PACKING AND OTHER ACCESSORIAL SERVICES ARE
PREDETERMINED (AT LEAST AS TO PRICE PER 100 POUNDS) AND IF THAT METHOD
IS EXPECTED TO RESULT IN A REAL SAVINGS TO THE GOVERNMENT OF $100 OR
MORE."
UNDER THE ABOVE-CITED SECTION, AN EMPLOYEE MAY BE AUTHORIZED SHIPMENT
OF HIS HOUSEHOLD GOODS BY GOVERNMENT BILL OF LADING ONLY WHEN THE ACTUAL
COSTS TO BE INCURRED FOR PACKING AND OTHER ACCESSORIAL SERVICE ARE
PREDETERMINED AND THE ACTUAL EXPENSE METHOD IS EXPECTED TO RESULT IN A
SAVINGS TO THE GOVERNMENT.
THERE IS NOTHING IN THE FILE TO SHOW THAT AN ADMINISTRATIVE
DETERMINATION WAS MADE TO USE THE ACTUAL EXPENSE METHOD AND THERE WAS NO
AUTHORITY TO AUTHORIZE SHIPMENT OF THE HOUSEHOLD EFFECTS BY GOVERNMENT
BILL OF LADING WITHOUT SUCH PREDETERMINATION. THE ACTUAL MOVE WAS NOT
ACCOMPLISHED ON A GOVERNMENT BILL OF LADING AND THE COMMUTED RATE
SCHEDULE WAS CORRECTLY APPLIED TO COMPUTE THE REIMBURSEMENT DUE MR.
SMALLEY. UNDER THESE CIRCUMSTANCES, NO AUTHORITY EXISTS TO COMPENSATE
THE EMPLOYEE FOR THE DIFFERENCE BETWEEN THE COMMUTED RATE AND THE
CHARGES HE WAS REQUIRED TO PAY THE COMMERCIAL CARRIER.
ALTHOUGH IT IS UNFORTUNATE THAT MR. SMALLEY WAS GIVEN INCORRECT
INFORMATION BY A GOVERNMENT REPRESENTATIVE, IT IS WELL ESTABLISHED THAT
THE GOVERNMENT IS NOT BOUND BY THE UNAUTHORIZED OR INCORRECT STATEMENTS
OF ITS AGENTS. FEDERAL CROP INSURANCE CORPORATION V. MERRILL, 332 U.S.
380, 384 (1947); UTAH POWER AND LIGHT COMPANY V. UNITED STATES, 243
U.S. 389, 409 (1917); BAY SOUND TRANSPORTATION COMPANY V. UNITED
STATES, 410 F.2D 505, 510 (1969); POSEY V. UNITED STATES, 449 F.2D 228
(1971). IN ANY CASE, HE WAS CORRECTLY REIMBURSED FOR THE METHOD OF
SHIPMENT ACTUALLY USED.
ACCORDINGLY, THE CLAIM OF MR. SMALLEY MAY NOT BE ALLOWED.
B-181377, AUG 21, 1974
HEADNOTES-UNAVAILABLE
1. PRECLUSION OF POSSIBLE SUPPLIER FROM OFFERING ITS PRODUCT BECAUSE
OF STRICT SPECIFICATION REQUIREMENTS FOR LEAD COATED STEEL DOES NOT
RENDER SPECIFICATION UNDULY RESTRICTIVE OF COMPETITION IF SPECIFICATION
REFLECTS LEGITIMATE NEEDS OF GOVERNMENT.
2. SINCE PROCUREMENT INVOLVED A REQUIREMENT FOR LABORATORY FURNITURE
EXCEEDING $600,000 IN PRICE, WHICH COULD BE SUPPLIED BY ONLY ONE FIRM,
FBI SHOULD HAVE USED NEGOTIATION PROCEDURES IN LIEU OF FORMAL
ADVERTISING.
KEWAUNEE SCIENTIFIC EQUIPMENT CORPORATION:
KEWAUNEE SCIENTIFIC EQUIPMENT CORPORATION BY LETTER DATED MAY 30,
1974, HAS PROTESTED A SPECIFICATION FOR METAL LABORATORY FURNITURE IN
SOLICITATION TO BID NO. 955 ISSUED ON MAY 15, 1974, BY THE FEDERAL
BUREAU OF INVESTIGATION (FBI), WASHINGTON, D.C.
DRAWING G-1, GENERAL NOTES, PARAGRAPH 1, SUBPARAGRAPH 2 OF THE
SPECIFICATION STATES:
"ALL CABINETS, FUMEHOOD EXTERIORS, ETC. ARE TO BE FABRICATED TOTALLY
FROM STEEL THAT IS HOT LEAD COATED, AND ONLY LEAD COATED AS DESCRIBED
AND DETAILED UNDER FEDERAL SPECIFICATION QQ-T-191 C, CLASS 1, TYPE-1
GRADE A (LONG TERNE SHEET). FURNITURE SUPPLIED OF STEEL THAT IS NOT
LEAD COATED AND DOES NOT MEET THIS SPECIFICATION, WILL NOT BE ACCEPTED."
KEWAUNEE CONTENDS THAT THE HOT LEAD COATED STEEL OFFERS NO ADVANTAGE
OVER PHOSPHATE TREATED STEEL IN SERVICE, DURABILITY AND PERFORMANCE WHEN
USED IN THE FABRICATION OF LABORATORY FURNITURE. PROTESTER ALSO ASSERTS
THAT THE FBI HAS FAILED TO PROVIDE SUBSTANTIVE PROOF THAT LABORATORY
FURNITURE MADE OF LEAD COATED STEEL IS SUPERIOR TO LABORATORY FURNITURE
MADE OF PHOSPHATE TREATED STEEL. IN ADDITION, KEWAUNEE NOTES THAT ONLY
ONE MANUFACTURER OF LABORATORY FURNITURE USES LEAD COATED STEEL IN ITS
MANUFACTURING PROCESS, THUS INDICATING THAT THIS SPECIFICATION WAS
OVERLY RESTRICTIVE. IN SUPPORT OF THIS VIEW IT IS OBSERVED THAT, IN
FACT, ONLY ONE BID WAS RECEIVED BY THE FBI.
THE ADMINISTRATIVE REPORT STATES THAT THE FBI SPECIFIED LEAD COATED
STEEL FOR ITS LABORATORY FURNITURE BECAUSE THE COATING IMPARTS TO THE
STEEL THE SPECIAL CHEMICAL CHARACTERISTICS OF LEAD, PARTICULARLY THE
ABILITY TO RESIST CORROSIVE ATTACKS BY COMMON ACIDS (HYDROCHLORIC,
SULPHURIC AND NITRIC) AS WELL AS OTHER CHEMICALS REGULARLY USED IN A
CRIME LABORATORY. ALSO IT IS STATED THAT WHEN BENCHES AND CABINETS
FABRICATED FROM LEAD COATED STEEL ARE FINISHED WITH ACID RESISTANT PAINT
\HE CORROSION RESISTANCE IS FURTHER ENHANCED.
VARIOUS TECHNICAL PUBLICATIONS HAVE BEEN SUBMITTED BY BOTH KEWAUNEE
AND THE FBI IN SUPPORT OF THEIR RESPECTIVE POSITIONS. THE FBI HAS CITED
MATERIALS WHICH DISCUSS THE DESIRABILITY OF LEAD COATED STEEL LABORATORY
FURNITURE WHERE SUCH FURNITURE WILL BE USED IN WORK INVOLVING ACIDS.
THE KEWAUNEE MATERIALS GENERALLY SUPPORT ITS POSITION THAT PHOSPHATE
TREATED STEEL OFFERS MANY ADVANTAGES IN MANUFACTURING LABORATORY
FURNITURE. THESE SAME MATERIALS, HOWEVER, INDICATE THAT LEAD COATED
STEEL LABORATORY FURNITURE HAS A PECULIAR CORROSION RESISTANCE IN THE
PRESENCE OF THE COMMON ACIDS AND OTHER CAUSTIC SOLUTIONS. BECAUSE OF
THIS PECULIAR CORROSION RESISTANCE OF THE LEAD COATED STEEL, THE FBI
DISAGREES WITH KEWAUNEE'S CONTENTION THAT PHOSPHATE TREATED STEEL IS
EQUAL TO OR BETTER THAN LEAD COATED STEEL FOR FBI PURPOSES, WHICH
INCLUDE FREQUENT CONTACT WITH CORROSIVE CHEMICALS, ESPECIALLY ACIDS.
THE FBI, MOREOVER, INFORMS THIS OFFICE THAT IT CONSIDERED THE
POSSIBILITY OF SPLITTING THE PROCUREMENT SO THAT THE FURNITURE WHICH
WOULD BE EXPOSED TO CORROSIVE CHEMICALS WOULD BE OBTAINED UNDER A
SPECIFICATION REQUIRING LEAD COATED STEEL, WHILE FURNITURE WHICH WOULD
NOT BE SO EXPOSED WOULD BE PURCHASED UNDER A SPECIFICATION ADMITTING
PHOSPHATE TREATED STEEL. HOWEVER, THE FBI DETERMINED THAT APPROXIMATELY
90 PERCENT OF THE LABORATORY FURNITURE WOULD BE EXPOSED TO THE CORROSIVE
CHEMICALS AND THAT A DIVIDED PROCUREMENT WOULD BE IMPRACTICAL.
THE FACT THAT ONE OR MORE POSSIBLE SUPPLIERS ARE PRECLUDED FROM
OFFERING THEIR PRODUCTS BECAUSE OF THE SPECIFICATION TERMS DOES NOT
RENDER THE SPECIFICATION UNDULY RESTRICTIVE OF COMPETITION IF, IN FACT,
IT REPRESENTS THE LEGITIMATE NEEDS OF THE GOVERNMENT. 45 COMP. GEN.
365, 368 (1965). THERE IS NO REQUIREMENT THAT THE GOVERNMENT PURCHASE
EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED OPINION OF THE PURCHASING
AGENCY, REASONABLY MEET ITS NEEDS. WHERE THE LEGITIMATE NEEDS OF THE
GOVERNMENT CAN ONLY BE SATISFIED FROM A SINGLE SOURCE, THE LAW DOES NOT
REQUIRE THAT THESE NEEDS BE COMPROMISED TO OBTAIN COMPETITION.
B-172903, JULY 6, 1971.
BASED ON A REVIEW OF THE RECORD THIS OFFICE BELIEVES THERE IS
SUFFICIENT EVIDENCE TO INDICATE THAT THE FBI ACTED REASONABLY IN
ASCRIBING SUPERIOR CORRISON RESISTANCE TO LEAD COATED STEEL. THUS, THE
ALLEGATION THAT THE AGENCY'S SPECIFICATION REQUIRING LEAD COATED STEEL
FOR LABORATORY FURNITURE IS UNDULY RESTRICTIVE OF COMPETITION IS WITHOUT
MERIT SINCE THE SPECIFICATION REPRESENTS THE LEGITIMATE NEEDS OF THE
AGENCY.
WHILE THE CONTRACT AWARDED APPEARS TO BE LEGALLY UNOBJECTIONABLE,
THIS OFFICE NEVERTHELESS HAS RESERVATIONS AS TO THE DETERMINATION
REGARDING THE FEASIBILITY OF USING FORMAL ADVERTISING PROCEDURES. THE
FBI HAS STATED THAT AT THE TIME THE SOLICITATION WAS ISSUED IT BELIEVED
THAT AT LEAST ONE FIRM IN ADDITION TO THE SOLE BIDDER MANUFACTURED THIS
TYPE OF FURNITURE. HOWEVER, THIS OFFICE READILY ESTABLISHED BY MEANS OF
AN INFORMAL INQUIRY WITH THE OTHER POTENTIAL SUPPLIER MENTIONED BY THE
FBI THAT IT DID NOT MANUFACTURE SUCH EQUIPMENT. SINCE THIS PROCUREMENT
INVOLVED A REQUIREMENT FOR A LARGE QUANTITY OF FURNITURE EXCEEDING
$600,000 IN PRICE, THIS OFFICE BELIEVES THAT THE GOVERNMENT'S BEST
INTERESTS WOULD HAVE BEEN SERVED IF THE FEASIBILITY OF THE USE OF FORMAL
ADVERTISING HAD BEEN MORE CAREFULLY CONSIDERED. IN THESE CIRCUMSTANCES
IT WOULD APPEAR TO HAVE BEEN BEST TO USE NEGOTIATION PROCEDURES TO
ESTABLISH THE REASONABLENESS OF THE CONTRACT PRICE.
ACCORDINGLY, THE PROTEST IS DENIED.
B-181523, AUG 21, 1974
HEADNOTES-UNAVAILABLE
NAVY MEMBER WHO PAID OWN TRAVEL EXPENSES FROM NEW YORK TO GERMANY VIA
AIRCRAFT OF FOREIGN REGISTRY INCIDENT TO A PERMANENT CHANGE OF STATION,
WHEN GOVERNMENT TRANSPORTATION WAS NOT AVAILABLE BUT WHEN A GOVERNMENT
TRANSPORTATION REQUEST WAS MADE AVAILABLE, MAY NOT BE REIMBURSED FOR
TRAVEL EXPENSES INCURRED BECAUSE USE OF CARRIERS OF UNITED STATES
REGISTRY WAS NOT SHOWN TO BE IMPRACTICAL NOR WERE THEY SHOWN TO BE
UNAVAILABLE, AS REQUIRED BY JOINT TRAVEL REGULATIONS, PARAGRAPHS
M4159-4C AND M2150.
RM1 NORBERT WINKLER, USN, CLAIM FOR REIMBURSEMENT FOR TRAVEL EXPENSES
INCURRED VIA AIRCRAFT OF FOREIGN REGISTRY:
RM1 NORBERT WINKLER, USN, RESUBMITS A CLAIM FOR TRAVEL EXPENSES
INCURRED UPON A PERMANENT CHANGE OF STATION DURING AUGUST 1972. THE
TRANSPORTATION AND CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE, IN
A SETTLEMENT DATED JANUARY 4, 1974 (CLAIM NO. Z-2505580), DISALLOWED RM1
WINKLER'S INITIAL CLAIM FOR REIMBURSEMENT OF THE COSTS OF FOREIGN
COMMERCIAL AIR FARE AND EXCESS BAGGAGE CHARGES INCIDENT TO TRAVEL
PERFORMED FROM NEW YORK, NEW YORK, TO HAMBURG, GERMANY. HE NOW CLAIMS
REIMBURSEMENT OF THE DIFFERENCE BETWEEN THOSE CHARGES AND THOSE WHICH
WOULD HAVE ACCRUED HAD HE FLOWN VIA AN AMERICAN FLAG CARRIER UTILIZING A
CATEGORY Z FARE OBTAINABLE WITH A GOVERNMENT TRANSPORTATION REQUEST
(GTR)
THE RECORD INDICATES THAT PURSUANT TO ORDERS DATED MARCH 27, 1972,
RM1 NORBERT WINKLER WAS PERFORMING TEMPORARY DUTY IN WASHINGTON, D.C.,
WITH HIS PERMANENT DUTY STATION TO BE IN MOROCCO, WHEN HE WAS REASSIGNED
BY A NAVAL MESSAGE IN JULY 1972 TO REPORT NOT LATER THAN SEPTEMBER 10,
1972, TO KIEL HOLTENAU, GERMANY. WHILE ON LEAVE HE RECEIVED A MAILGRAM
DATED AUGUST 11, 1972, DIRECTING HIM TO PRESENT THE MAILGRAM AND HIS
STANDARD TRAVEL ORDERS TO THE NAVAL ACTIVITY NEAREST TO HIM AND TO
OBTAIN A GTR FOR COMMERCIAL AIR TRAVEL, CATEGORY "Z" FROM NEW YORK, NEW
YORK, TO HAMBURG, GERMANY, VIA PAN AMERICAN AIRLINES, SINCE NO
GOVERNMENT AIR TRANSPORTATION WAS AVAILABLE. HE DID NOT COMPLY WITH
THIS MESSAGE SINCE PURPORTEDLY HE HAD ALREADY MADE RESERVATIONS FROM HIS
LEAVE RESIDENCE TO GERMANY AND THERE WAS NO NAVAL ACTIVITY "CLOSE BY TO
DRAW A GTR." RM1 WINKLER PROCEEDED FROM JOPLIN, MISSOURI, TO NEW YORK,
NEW YORK, VIA OZARK AIR LINES AND FROM NEW YORK, NEW YORK, TO COLOGNE,
GERMANY, VIA LUFTHANSA ON AUGUST 15, 1972. THE FARE FROM NEW YORK TO
GERMANY WAS $339 AND THE EXCESS BAGGAGE CHARGE WAS $37.20. IT IS FOR
THESE EXPENSES THAT THE MEMBER HAD ORIGINALLY SUBMITTED THE CLAIM WHICH
WAS DISALLOWED BY THE TRANSPORTATION AND CLAIMS DIVISION IN THE
SETTLEMENT HERE UNDER REVIEW.
THE MEMBER RESUBMITS HIS CLAIM FOR REIMBURSEMENT OF TRAVEL EXPENSES
FROM NEW YORK TO GERMANY ON THE BASIS OF JOINT TRAVEL REGULATIONS (JTR)
PARAGRAPH M4159-5B, FORMERLY M4159-4B. HE STATES THAT THAT SECTION
HOLDS THAT "IF GOVERNMENT TRANSPORTATION OR TRANSPORTATION ARRANGEMENTS
WERE AVAILABLE TO MEMBER AND HE ELECTED TO TRAVEL VIA HIS OWN
ARRANGEMENTS, HE IS TO BE REIMBURSED AT THE OFFICIAL RATE COMPUTED FOR
CAT. Z COSTS."
37 U.S.C. 404 ALLOWS THE PAYMENT TO A MEMBER OF THE UNIFORMED
SERVICES OF TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED OR
TO BE PERFORMED UNDER ORDERS UPON A CHANGE OF PERMANENT STATION.
PURSUANT TO THIS STATUTE THE SECRETARIES OF THE UNIFORMED SERVICES HAVE
PROMULGATED THE JOINT TRAVEL REGULATIONS.
UNDER THE PROVISIONS OF PARAGRAPH M4159 OF THE JTR IN EFFECT ON THE
DATE OF THE MEMBER'S FLIGHT FROM NEW YORK TO GERMANY, WHEN
TRANSPORTATION IN GOVERNMENT AIRCRAFT OR VESSEL IS NOT AVAILABLE AND
WHEN GOVERNMENT TRANSPORTATION REQUESTS WERE AVAILABLE TO THE MEMBER,
THE MEMBER WILL BE ENTITLED TO TRANSOCEANIC TRAVEL PERFORMED AT PERSONAL
EXPENSE IN AN AMOUNT NOT EXCEEDING THE COST WHICH WOULD HAVE BEEN
INCURRED HAD THE GOVERNMENT FURNISHED THE TRANSPORTATION. JTR PARAGRAPH
M4159-4B. HOWEVER, PARAGRAPH M4159-4C SEVERELY LIMITS THE POSSIBILITY
OF A MEMBER'S REIMBURSEMENT FOR TRANSOCEANIC TRAVEL PERFORMED AT
PERSONAL EXPENSE. THE ENTITLEMENT TO REIMBURSEMENT IS CONDITIONED ON
THE FACT THAT NO PART OF THE TRAVEL FOR WHICH REIMBURSEMENT IS SOUGHT IS
PERFORMED ON VESSELS OR AIRCRAFT OF FOREIGN REGISTRY IN THE ABSENCE OF A
DETERMINATION THAT UNITED STATES VESSELS OR AIRCRAFT ARE UNAVAILABLE OR
THEIR USE IN IMPRACTICAL.
THIS PROHIBITION ON THE USE OF FOREIGN FLAG AIRCRAFT IS FURTHER
AMPLIFIED BY JTR PARAGRAPH M2150, WHICH ALSO REQUIRES THE USE OF VESSELS
OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES UNLESS
DETERMINED IMPRACTICAL OR NOT AVAILABLE. PARAGRAPH M2150 SPECIFIES THAT
WHEN THE TRANSPORTATION OR OTHER APPROPRIATE OFFICER DETERMINES THAT THE
USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED
STATES WOULD SERIOUSLY INTERFERE WITH OR PREVENT THE PERFORMANCE OF
OFFICIAL BUSINESS, HE MAY AUTHORIZE THE USE OF VESSELS OR AIRCRAFT OF
FOREIGN REGISTRY. SUCH DETERMINATION MAY NOT BE BASED UPON MERE
INCOVENIENCE IN SECURING TRANSPORTATION OR SHORT DELAYS IN AWAITING
TRANSPORTATION ON VESSELS OR AIRCRAFT OF UNITED STATES REGISTRY, THE
DESIRE TO ARRANGE CIRCUITOUS ROUTES FOR THE CONVENIENCE OF A TRAVELER,
OR FOR ANY OTHER SIMILAR REASONS.
THE RECORD REVEALS THAT GOVERNMENT TRANSPORTATION WAS NOT AVAILABLE
TO THE MEMBER BUT THAT A GOVERNMENT TRANSPORTATION REQUEST HAD BEEN MADE
AVAILABLE TO HIM. RM1 WINKLER CHOSE TO TRAVEL BETWEEN NEW YORK AND
GERMANY VIA LUFTHANSA, A CARRIER OF FOREIGN REGISTRY. NO EVIDENCE IS
PRESENTED THAT AIRCRAFT OF UNITED STATES REGISTRY WAS UNAVAILABLE NOR
THAT THEIR USE WAS IMPRACTICAL.
ACCORDINGLY, THE SETTLEMENT OF JANUARY 4, 1974, WHICH DISALLOWED THE
CLAIM OF RM1 NORBERT WINKLER IS SUSTAINED, AND HIS RESUBMITTED CLAIM MAY
NOT BE ALLOWED.
B-181787, AUG 21, 1974
HEADNOTES-UNAVAILABLE
WHERE CLAIMANT QUESTIONS PROPRIETY OF ASSESSMENT OF LIQUIDATED
DAMAGES BY GOVERNMENT AGENCY IN CONTEXT OF CONTRACT PROVISIONS, MATTER
SHOULD BE PURSUED FOR RESOLUTION PURSUANT TO CONTRACT DISPUTES CLAUSE,
AND THEREFORE GAO WILL NOT REVIEW PROPRIETY OF ASSESSMENT IN QUESTION.
S&E CONTRACTORS V. UNITED STATES, 406 U.S. 1. WHILE COMPTROLLER GENERAL
IS AUTHORIZED TO CONSIDER REQUEST FOR EQUITABLE REMISSION OF LIQUIDATED
DAMAGES UPON FAVORABLE RECOMMENDATION BY AGENCY HEAD, 41 U.S.C. 256A,
SUCH RELIEF IS SEPARATE AND DISTINCT FROM RELIEF WHICH MAY BE PROVIDED
PURSUANT TO CONTRACT PROVISIONS.
PINE BELT HELICOPTERS, INCORPORATED:
BY LETTER OF JULY 6, 1974, PINE BELT HELICOPTERS, INCORPORATED HAS
REQUESTED THAT THIS OFFICE REVIEW THE ASSESSMENT OF LIQUIDATED DAMAGES
BY THE FOREST SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE, SAN
FRANCISCO, CALIFORNIA, FOR FAILURE TO TIMELY DELIVER A HELICOPTER UNDER
CONTRACT NO. 39-4652. IT APPEARS THAT PINE BELT WAS REQUIRED TO PROVIDE
THE FOREST SERVICE WITH HELICOPTER AVAILABILITY BY JUNE 15, 1973, BUT
THAT BECAUSE OF MATTERS ALLEGEDLY BEYOND ITS CONTROL THE HELICOPTER WAS
NOT MADE AVAILABLE UNTIL JUNE 18, 1973.
AS THE BASIS FOR THE REQUESTED REVIEW, PINE BELT STATES THAT IT IS
APPEALING THE ASSESSMENT UNDER PARAGRAPH 5(D), PART A, OF THE FOREST
SERVICE GENERAL AND LABOR STANDARDS PROVISIONS FOR NON-PERSONAL SERVICES
(6300-38(8/72)), A PART OF THE CONTRACT. THE PARAGRAPH IN QUESTION
PROVIDES, INTER ALIA, THAT CERTAIN CONTRACTOR DELAYS IN CONTRACT
PERFORMANCE WILL BE CONSIDERED EXCUSABLE AND THE CONTRACTOR WILL NOT BE
CHARGED WITH RESULTING DAMAGE FOR SUCH DELAYS. ANY FINDINGS OF FACT BY
THE CONTRACTING OFFICER UNDER THIS PARAGRAPH ARE CONSIDERED FINAL AND
CONCLUSIVE ON THE PARTIES, SUBJECT ONLY TO APPEAL AS PROVIDED BY THE
CONTRACT DISPUTES CLAUSE. UNDER THE DISPUTES CLAUSE, THE CONTRACTING
OFFICER IS REQUIRED TO REDUCE HIS DECISION TO WRITING AND SUCH DECISION
ON A QUESTION OF FACT SHALL BE FINAL UNLESS WITHIN 30 DAYS FROM THE DATE
OF RECEIPT OF THE DECISION THE CONTRACTOR FURNISHES THE CONTRACTING
OFFICER A WRITTEN APPEAL ADDRESSED TO THE SECRETARY OF AGRICULTURE. THE
DISPUTES CLAUSE FURTHER PROVIDES THAT THE DECISION OF THE SECRETARY OR
HIS DULY AUTHORIZED REPRESENTATIVE SHALL BE FINAL AND CONCLUSIVE UNLESS
SET ASIDE BY A COURT OF COMPETENT JURISDICTION.
IN THIS REGARD, WE HAVE BEEN ADVISED BY THE FOREST SERVICE THAT A
FINAL DECISION IN THIS DISPUTE HAS NOT AS YET BEEN RENDERED BY THE
CONTRACTING OFFICER. SINCE IT APPEARS THAT ANY DIFFERENCES WHICH MAY
EXIST BETWEEN PINE BELT AND THE CONTRACTING OFFICIALS OF THE FOREST
SERVICE AS TO WHETHER LIQUIDATED DAMAGES WERE PROPERLY ASSESSABLE ARE
QUESTIONED IN THE CONTEXT OF THE APPLICABLE CONTRACT PROVISION, WE
BELIEVE A DECISION SHOULD BE REQUESTED OF THE CONTRACTING OFFICER AND
THE MATTER PURSUED FOR RESOLUTION PURSUANT TO THE DISPUTES CLAUSE OF THE
CONTRACT. ACCORDINGLY, THIS OFFICE MUST DECLINE TO CONSIDER THE MATTER
SINCE IT IS APPROPRIATE FOR RESOLUTION UNDER THE DISPUTES PROCEDURE OF
THE CONTRACT. S&E CONTRACTORS, INC. V. UNITED STATES, 406 U.S. 1
(1972).
IN THIS CONNECTION, WHILE THE COMPTROLLER GENERAL IS AUTHORIZED, UPON
RECOMMENDATION OF THE APPROPRIATE AGENCY HEAD, TO REMIT THE WHOLE OR ANY
PART OF LIQUIDATED DAMAGES ASSESSED BY THE GOVERNMENT AS IN HIS
DISCRETION MAY BE JUST AND EQUITABLE, 41 U.S.C. SEC. 256A (1970), SUCH
RELIEF IS SEPARATE AND DISTINCT FROM ANY RELIEF WHICH MAY BE PROVIDED
PURSUANT TO THE CONTRACT PROVISIONS MENTIONED ABOVE.
B-164746, AUG 20, 1974
HEADNOTES-UNAVAILABLE
EMPLOYEE MAY BE PAID TEMPORARY QUARTERS SUBSISTENCE EXPENSES BASED ON
SONS' OCCUPANCY OF TEMPORARY QUARTERS AT OLD STATION WHERE SONS DID NOT
MOVE TO NEW STATION WITH FAMILY BUT STAYED IN HOTELS FOR 2 WEEKS PRIOR
TO MOVING INTO APARTMENT IN ORDER TO ATTEND COLLEGES LOCATED IN VICINITY
OF OLD STATION. TEMPORARY QUARTERS ALLOWNACE MAY BE PAID FOR CHILDREN'S
OCCUPANCY OF TEMPORARY QUARTERS PRIOR TO MOVING INTO QUARTERS AT SCHOOL
ALTHOUGH THEY DO NOT INTEND AT THAT TIME TO MOVE INTO PERMANENT QUARTERS
AT NEW DUTY STATION. B-162513, OCTOBER 11, 1967, OVERRULED.
SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS:
MR. JAMES Y. KURIHARA, THE NEWLY APPOINTED ASSISTANT DIRECTOR OF THE
FAR EAST BRANCH OF THE U.S. GENERAL ACCOUNTING OFFICE, HAS REQUESTED
OUR CONSIDERATION OF THE ACTION TAKEN WHICH DISALLOWED HIS CLAIM FOR
PAYMENT IN THE AMOUNT OF $366.62 FOR TEMPORARY QUARTERS SUBSISTENCE
EXPENSES INCURRED IN CONNECTION IWTH HIS TRANSFER TO A NEW OFFICIAL
STATION IN AUGUST OF 1973.
PRIOR TO THE NOTIFICATION OF THE TRANSFER OF HIS OFFICIAL STATION
FROM WASHINGTON, D.C., TO HONOLULU, HAWAII, MR. KURIHARA'S TWO SONS HAD
ENROLLED AT THE UNIVERSITY OF MARYLAND AND MONTGOMERY COLLEGE. SO THAT
THEY COULD ATTEND COLLEGE AS PLANNED, AN APARTMENT WAS LOCATED FOR THE
TWO BOYS. THE APARTMENT WAS NOT READY FOR OCCUPANCY UNTIL SEPTEMBER 1,
1973. ON AUGUST 6, 1973, 4 DAYS PRIOR TO THE FAMILY'S SCHEDULED MOVE,
MR. KURIHARA RECEIVED AN OFFER TO PURCHASE THE FAMILY'S RESIDENCE IN
POTOMAC, MARYLAND, SUBJECT TO THE CONDITION THAT THE PURCHASER BE GIVEN
OCCUPANCY BY AUGUST 15. THUS, THE TWO BOYS STAYED IN HOTELS FOR THE
PERIOD FROM AUGUST 15 UNTIL SEPTEMBER 1 WHEN THEY WERE ABLE TO MOVE INTO
THEIR APARTMENT AND IT IS THIS OCCUPANCY OF TEMPORARY QUARTERS BY HIS
SONS THAT IS THE BASIS FOR MR. KURIHARA'S CLAIM FOR TEMPORARY QUARTERS
SUBSISTENCE EXPENSES.
AUTHORITY FOR PAYMENT OF SUBSISTENCE EXPENSES WHILE OCCUPYING
TEMPORARY QUARTERS INCIDENT TO A CHANGE OF OFFICIAL STATION IS CONTAINED
AT SECTION 5724A(A)(3) OF TITLE 5 OF THE UNITED STATES CODE.
THAT AUTHORITY IS IMPLEMENTED AT PART 5 OF CHAPTER 2 OF THE FEDERAL
PROPERTY MANAGEMENT REGULATIONS (FPMR), REVISED MAY 1, 1973, IN FORCE AT
THE TIME IN QUESTION. SUBSECTIONS 2-5.2C, E AND F THEREOF PROVIDE AS
FOLLOWS:
"C. *** THE TERM 'TEMPORARY QUARTERS' REFERS TO ANY LODGING OBTAINED
FROM PRIVATE OR COMMERCIAL SOURCES TO BE OCCUPIED TEMPORARILY BY THE
EMPLOYEE OR MEMBERS OF HIS IMMEDIATE FAMILY WHO HAVE VACATED THE
RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT THE TIME THE TRANSFER
WAS AUTHORIZED.
"E. *** IN ORDER TO BE ELIGIBLE FOR THE TEMPORARY QUARTERS
ALLOWANCE, THE PERIOD OF USE OF SUCH QUARTERS FOR WHICH A CLAIM FOR
REIMBURSEMENT IS MADE MUST BEGIN NOT LATER THAN 30 DAYS FROM THE DATE
THE EMPLOYEE REPORTED FOR DUTY AT HIS NEW OFFICIAL STATION, OR IF NOT
BEGUN DURING THIS PERIOD, NOT LATER THAN 30 DAYS FROM THE DATE THE
FAMILY VACATES THE RESIDENCE AT THE OLD OFFICIAL STATION, BUT NOT BEYOND
THE MAXIMUM TIME FOR BEGINNING ALLOWABLE TRAVEL AND TRANSPORTATION.
"F. *** THE EMPLOYEE MAY OCCUPY TEMPORARY QUARTERS AT ONE LOCATION
WHILE MEMBERS OF THE IMMEDIATE FAMILY OCCUPY QUARTERS AT ANOTHER
LOCATION. THE PERIOD OF ELIGIBILITY SHALL TERMINATE WHEN THE EMPLOYEE
OR ANY MEMBER OF HIS IMMEDIATE FAMILY OCCUPIES PERMANENT RESIDENCE
QUARTERS OR WHEN THE ALLOWABLE TIME LIMIT EXPIRES, WHICHEVER OCCURS
FIRST."
MR. KURIHARA'S CLAIM FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES WAS
ADMINISTRATIVELY DISALLOWED ON THE BASIS OF OUR HOLDING IN B-162513,
OCTOBER 11, 1967, WHICH INVOLVED A SUBSTANTIALLY SIMILAR FACTUAL
SITUATION. IN THAT CASE, INSTEAD OF ACCOMPANYING THE FAMILY IN MOVING
TO THE NEW DUTY STATION, TWO OF THE EMPLOYEE'S DAUGHTERS REMAINED IN
TEMPORARY LODGINGS AT THE OLD DUTY STATION DURING MOST OF THE MONTH OF
AUGUST AND PART OF SEPTEMBER PRIOR TO ATTENDING NEARBY COLLEGES IN THE
FALL. THE EMPLOYEE'S CLAIM FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES
BASED ON HIS DAUGHTERS' OCCUPANCY OF TEMPORARY QUARTERS AT A DIFFERENT
LOCATION FROM THE REST OF THE FAMILY WAS ADMINISTRATIVELY DENIED. IN
UPHOLDING THE DENIAL OF THE CLAIM THERE INVOLVED WE INDICATED THAT WE
COULD NOT FIND THE ADMINISTRATIVE CONCLUSION THAT THE DAUGHTERS WERE NOT
OCCUPYING TEMPORARY QUARTERS PENDING MOVEMENT INTO PERMANENT QUARTERS AT
THE NEW OFFICIAL STATION TO BE ARBITRARY AND CAPRICIOUS. HOWEVER, UPON
FURTHER REVIEW OF THAT DECISION AND THE APPLICABLE REGULATIONS, WE NOW
FIND THE ADMINISTRATIVE VIEW THERE EXPRESSED TO BE TOO RESTRICTIVE.
SUBPARAGRAPH 2.5B(5) OF THE REGULATIONS IN EFFECT OCTOBER 11, 1967, AND
SUBSECTION 2-5.2F OF THE CURRENT REGULATIONS, QUOTED ABOVE, PROVIDE THAT
THE EMPLOYEE MAY BE PAID SUBSISTENCE EXPENSES BASED ON HIS OCCUPANCY OF
TEMPORARY QUARTERS AT ONE LOCATION AS WELL AS THE OCCUPANCY OF TEMPORARY
QUARTERS BY MEMBERS OF THE IMMEDIATE FAMILY AT ANOTHER LOCATION. UNDER
THE ABOVE REGULATION TEMPORARY QUARTERS SUBSISTENCE EXPENSES OF SCHOOL
AGE CHILDREN OF EMPLOYEES WHO ARE INTENDING TO LIVE AT SCHOOLS AWAY FROM
THE REST OF THE IMMEDIATE FAMILY MAY BE PAID NOTWITHSTANDING THAT THOSE
CHILDREN DO NOT INTEND AT THAT TIME TO MOVE INTO PERMANENT QUARTERS AT
THE NEW OFFICIAL STATION. A TEMPORARY QUARTERS ALLOWANCE MAY BE PAID TO
THE SAME EXTENT AS IF THEY HAD ACCOMPANIED THE FAMILY WHEN, DUE TO THE
PARENT'S TRANSFER, SCHOOL AGE CHILDREN NECESSARILY OCCUPY QUARTERS OTHER
THAN THOSE IN WHICH THEY INTEND TO RESIDE THROUGHOUT THE MAJOR PORTION
OF THE SEMESTER OR PARTICULAR SESSION OF SCHOOL WHICH IS INVOLVED.
THE RECORD INDICATES THAT MR. KURIHARA OCCUPIED TEMPORARY QUARTERS AT
HIS NEW DUTY STATION FROM AUGUST 15, 1973, TO SEPTEMBER 25, 1973, WHILE
HIS TWO SONS STAYED IN HOTELS IN THE WASHINGTON, D.C. AREA FROM AUGUST
17, 1973, TO AUGUST 31, 1973, AND THAT HE NEITHER MOVED DIRECTLY INTO
PERMANENT QUARTERS NOR DID HE OCCUPY TEMPORARY QUARTERS BEYOND THE
ALLOWABLE PERIOD SET BY REGULATIONS. UNDER THE REGULATION QUOTED ABOVE
WHICH PROVIDES FOR PAYMENT OF SUBSISTENCE EXPENSES WHILE OCCUPYING
TEMPORARY QUARTERS AT TWO LOCATIONS, MR. KURIHARA MAY BE PAID
SUBSISTENCE EXPENSES BASED ON HIS SONS' OCCUPANCY OF TEMPORARY QUARTERS
FOR THE PERIOD FROM AUGUST 15 TO SEPTEMBER 1, 1973. TO THE EXTENT THAT
THE HOLDING IN THIS DECISION IS INCONSISTENT WITH B-162513, OCTOBER 11,
1967, THE LATTER DECISION IS NO LONGER TO BE FOLLOWED.
B-179896, AUG 20, 1974
HEADNOTES-UNAVAILABLE
EMPLOYEE WHO CLAIMS TO HAVE BEEN DETAILED TO UNCLASSIFIED DUTIES
AFTER MARCH 6, 1972, IN EXCESS OF 120 DAYS SPECIFIED IN SUBCHAPTER 1-6,
CHAPTER 511 OF THE FEDERAL PERSONNEL MANUAL (FPM) AND WHO SECCESSFULLY
HAD POSITION RECLASSIFIED GS-12 EFFECTIVE JANUARY 16, 1973, MAY NOT BE
PAID RETROACTIVE COMPENSATION FOR PRIOR PERIOD. SINCE SUBCHAPTER 7,
CHAPTER 511, FPM, PROVIDES FOR PROSPECTIVE EFFECT ONLY OF SUCH
RECLASSIFICATION DECISIONS AND EMPLOYEE IS ENTITLED ONLY TO COMPENSATION
OF POSITION TO WHICH APPOINTED, ALTHOUGH HE MAY PERFORM HIGHER GRADE
DUTIES.
LEONARD D. BERGANTINO - RETROACTIVE EFFECT OF CLASSIFICATION APPEAL
DECISION:
BY HIS LETTER DATED SEPTEMBER 18, 1973, MR. LEONARD D. BERGANTINO HAS
APPEALED THE DENIAL BY OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT
CERTIFICATE DATED SEPTEMBER 5, 1973 OF HIS CLAIM FOR RETROACTIVE PAY FOR
THE PERIOD FROM JULY 6, 1972, TO JANUARY 16, 1973.
MR. BERGANTINO'S CLAIM ARISES OUT OF THE CIRCUMSTANCES OF HIS
ASSIGNMENT TO THE MENTAL HYGEINE CLINIC, DOWNTOWN OUTPATIENT CLINIC
UNIT, AS AN EMPLOYEE OF THE VETERANS ADMINISTRATION HOSPITAL, SAN DIEGO,
CALIFORNIA, FOR THE PERIOD BEGINNING MARCH 6, 1972, AND ENDING FEBRUARY
16, 1973, AT WHICH LATER DATE HE WAS PROMOTED TO A GRADE GS-12. THE
RECORD SHOWS THAT ON OCTOBER 12, 1972, THE SAN FRANCISCO REGION OF CIVIL
SERVICE COMMISSION RECEIVED MR. BERGANTINO'S APPEAL OF THE
CLASSIFICATION APPEAL, THE EMPLOYEE MAINTAINED THAT HE WAS QUALIFIED FOR
A GRADE GS-12 AND THAT THE INCREASE IN HIS RESPONSIBILITIES AT THE
OUTPATIENT CLINIC WARRANTED THE CLASSIFICATION OF HIS POSITION AT THAT
GRADE. THAT APPEAL INCLUDED HIS REQUEST THAT THE CHANGE IN THE
CLASSIFICATION OF HIS POSITION BE APPROVED RETROACTIVE TO JUNE 28, 1972,
THE DATE OF HIS COMPLETION OF ONE YEAR OF DOCTORAL EXPERIENCE. UPON
REEXAMINATION OF HIS POSITION, THE CIVIL SERVICE COMMISSION DETERMINED
THAT THE NATURE OF HIS ASSIGNMENT AND THE LEVEL OF HIS RESPONSIBILITY
MET THE GRADE GS-12 STANDARDS AND CERTIFIED THE POSITION AS A GRADE
GS-12 EFFECTIVE JANUARY 16, 1973. HE WAS PROMOTED TO THAT GRADE ON
FEBRUARY 17, 1973.
IN CONSIDERING HIS CLAIM FOR RETROACTIVE COMPENSATION, OUR
TRANSPORTATION AND CLAIMS DIVISION UNDERSTOOD THAT THE BASIS OF MR.
BERGANTINO'S CLAIM WAS THAT THE VETERANS ADMINISTRATION HAD IMPROPERLY
DETAILED HIM FOR A PERIOD IN EXCESS OF THE 120 DAY LIMITATION PRESCRIBED
BY 5 U.S.C. 3341 TO A POSITION WITH RESPONSIBILITIES IN EXCESS OF THOSE
OF THE POSITION TO WHICH HE HELD AN APPOINTMENT. IN ADDRESSING THAT
CONTENTION, THAT DIVISION HELD:
"IT HAS LONG BEEN THE RULE OF THIS OFFICE AND OF THE COURTS THAT AN
EMPLOYEE OF THE GOVERNMENT IS ENTITLED ONY TO THE COMPENSATION OF THE
POSITION TO WHICH HE HAS BEEN DULY APPOINTED EVEN THOUGH HE MAY BE
ASSIGNED TO PERFORM DUTIES OF A HIGHER GRADE POSITION, 41 COMP. GEN.
497; GANSE V. UNITED STATES, 180 CT. CL. 183 (1967); PRICE V. UNITED
STATES, 112 CT. CL. 198 (1948); AND ACASES CITED THEREIN. WE FIND NO
PROVISION OF LAW WHICH AUTHORIZES THE RETROACTIVE PROMOTION OF AN
EMPLOYEE BASED UPON THE FAILURE OF HIS EMPLOYING AGENCY TO PROMOTE HIM
TO A POSITION TO WHICH HE MAY BE DETAILED CONTRARY TO ADMINISTRATIVE
REGULATIONS. FURTHER, THE STATUTORY AUTHORITY TO DETAIL EMPLOYEES FOR
LIMITED PERIODS AS CONTAINED IN 5 U.S.C. 3341 HAS NOT BEEN VIEWED AS
AUTHORIZING RETROACTIVE PAY FOR EMPLOYEES WHO HAVE HAD DETAILS EXTENDED
BEYOND THE TIME LIMIT IMPOSED THEREBY.
"VIEW OF THE ABOVE, AND SINCE THE RECORDS ESTABLISH THAT YOUR
POSITION WAS CLASSIFIED AS GS-11 UNITL JANUARY 16, 1973, WHEN IT WAS
RECLASSIFIED BY THE CIVIL SERVICE COMMISSION AS GS-12, AND THAT YOU WERE
TIMELY PROMOTED TO THAT GRADE EFFECTIVE FEBRUARY 17, 1973, IT APPEARS
THAT NO ADMINISTRATIVE ERROR HAS BEEN COMMITTED. THEREFORE, YOUR CLAIM
FOR RETROACTIVE ADJUSTMENT OF COMPENSATION FOR THE PERIOD JULY 6, 1972,
THROUGH FEBRUARY 16, 1973, MAY NOT BE ALLOWED."
MR. BERGANTINO NOW EXPLAINS THAT OUR TRANSPORTATION AND CLAIMS
DIVISION HAS MISCONSTRUED THE BASIS OF HIS CLAIM. IN CLARIFYING THE
ISSUE FOR THE PURPOSE OF HIS APPEAL, MR. BERGANTINO STATES:
"THE ISSUE IS THAT I NEVER HAD A POSITION DESCRIPTION. THE
ADMINISTRATIVE RULES STATE THAT A POSITION IS SUPPOSED TO BE CLASSIFIED
WITHIN 120 DAY LIMIT. THE VA MADE AN ERROR IN REFUSING TO CLASSIFY MY
POSITION AND REFUSING TO GIVE ME ANY POSITION DESCRIPTION. NO POSITION
DESCRIPTION EXISTED AT THE VA OUTPATIENT CLINIC BECAUSE I WAS ASSIGNED
TO A JOB THAT DIDN'T EXIST.
"THEREFORE, MY CLAIM IS THAT MY PAY SHOULD BE MADE RETROACTIVE IN
ACCORD WITH THE 120 DAY LIMIT (MARCH 6, TO JULY 6, 1972) AS OF JULY 6,
1972. THE CIVIL SERVICE COMMISSION CLASSIFIED THE POSITION A GS-12, BUT
THE ISSUE WAS NOT HAVING ANY POSITION DESCRIPTION UNTIL THAT IME
(JANUARY 16, 1973)."
MR. BERGANTINO EXPRESSES THE FURTHER BELIEF THAT HIS ASSIGNMENT
BEGINNING MARCH 6, 1972, TO THE OUTPATIENT CLINIC WAS ILLEGAL FOR THE
REASON THAT HE WAS FORMALLY ASSIGNED TO THE VETERANS ADMINISTRATION
HOSPITAL, SAN DIEGO, WHEREAS PRIOR TO JULY 1, 1972, THE OUTPATIENT CLINC
WAS AFFILIATED WITH THE VETERANS ADMINISTRATION HOSPITAL, LOS ANGELES.
IN REGARD TO MR. BERGANTINO'S CONTENTION THAT HIS ASSIGNMENT AS AN
EMPLOYEE OF THE VA HOSPITAL, SAN DIEGO, TO AN AFFITLIATE UNIT OF THE VA
HOSPITAL, LOS ANGELES WAS IMPROPER, WE POINT OUT THAT SECTION 3341 OF
TITLE 5 OF THE U.S. CODE SPECIFICALLY PROVIDES FOR DETAILING EXECUTIVE
DEPARTMENT EMPLOYEES AMONG THE DEPARTMENT'S BUREAUS AND OFFICES. WHILE
SUBSECTION 3341(B) DOES IMPOSE A 120 DAY LIMIT ON DETAILS AND REQUIRES
THAT THEY BE MADE UNDER WRITTEN ORDER, WE HAVE HELD THAT THE FAILURE OF
AGENCIES TO COMPLY WITH THOSE LIMITATIONS IS NOT A BASIS FOR PAYMENT OF
BACKPAY, B-165730, JANUARY 17, 1969, B-178488, JUNE 21, 1973.
TURNING NOW TO MR. BERGANTINO'S CONTENTION THAT HIS POSITION SHOULD
HAVE BEEN RECLASSIFIED ON JULY 6, 1972, WE NOTE THAT SUBCHAPTER 1-6 OF
CHAPTER 511 OF THE FEDERAL PERSONNEL MANUAL (FPM) PROVIDES FOR
CLASSIFICATION ACTION TO BE TAKEN IN REGARD TO DETAILED POSITIONS AS
FOLLOWS:
"B. DETAILS TO DUTIES OR POSITIONS THAT HAVE NOT BEEN CLASSIFIED.
EXTENDED DETAILS OF EMPLOYEES TO DUTIES OR POSITIONS THAT HAVE NOT BEEN
CLASSIFIED CONFLICT WITH THE PRINCIPLES OF POSITION CLASSIFICATION. IN
VIEW OF THIS, DETAILS MUST BE KEPT TO THE SHORTEST PRACTICAL TIME.
UNDER NO CIRCUMSTANCES MAY THEY EXTEND BEYOND 120 DAYS COMMISSION. ***"
THE APPROPRIATE CHANNEL TO REDRESS AN AGENCY'S FAILURE TO COMPLY WITH
THE ABOVE REQUIREMENT AND THAT WHICH MR. BERGANTINO PROPERLY PURSUED IS
A CLASSIFICATION APPEAL UNDER THE PROCEDURES SET FORTH AT SUBCHAPTER 1-6
OF CHAPTER 511 OF THE FPM. AS TO THE EFFECTIVE DATES FOR DECISIONS UPON
CLASSIFICATION APPEALS, SUBCHAPTER 7 OF CHAPTER 511 OF THE FPM PROVIDES:
"7-2. GENERAL RULE FOR EFFECTIVE DATES FOR APPEAL DECISIONS
"THE GENERAL RULE IS THAT A CHANGE BROUGHT ABOUT BY AN APPEAL
DECISION TAKES EFFECT NO EARLIER THAN THE DATE OF THE APPEAL DECISION
AND NO LATER THAN THE BEGINNING OF THE FOURTH PAY PERIOD FOLLOWING THE
DATE OF DECISION UNLESS A LATER DATE IS SPECIFIED IN THE DECISION.
"7-3. RETROACTIVE EFFECTIVE DATES FOR APPEAL DECISIONS
"A. CONDITIONS. A CLASSIFICATION CHANGE RESULTING FROM AN APPEAL
DECISION IS RETROACTIVE TO THE DATE OF THE ADVERSE ACTION WHEN ALL OF
THE FOLLOWING CONDITIONS ARE MET:
"(1) THE APPEAL DECISION REVERSES, IN WHOLE OR IN PART, A
CLASSIFICATION ACTION THAT LED TO A LOSS IN GRADE OR PAY;
"(2) THE APPEAL DECISION IS BASED ON DUTIES AND RESPONSIBILITIES
EXISTING AT THE TIME OF THE ADVERSE CLASSIFICATION ACTION RATHER THAN ON
ANY ASSIGNED LATER; AND
"(3) THE INITIAL APPEAL, WHETHER TO AN AGENCY OR TO THE COMMISSION,
AND ANY SUBSEQUENT APPEALS ARE FILED ON A TIMELY BASIS AS DEFINED IN
SUBCHAPTER 6 OF THIS CHARPTER."
UNLESS THE CIRCUMSTANCES OF AN EMPLOYEE'S CLASSIFICATION APPEAL MEET
THE CONDITIONS SET FORTH AT SUBCHAPTER 7-3, QUOTED ABOVE, THERE IS NO
AUTHORITY BY WHICH THE CIVIL SERVICE COMMISSION OR THIS OFFICE MAY GIVE
RETROACTIVE EFFECT TO AN APPEAL DETERMINATION.
THE CASE OF DIANISH V. UNITED STATES, 183 CT. CL. 702 (1968),
SIMILARLY INVOLVED AN EMPLOYEE WHOSE CLASSIFICATION APPEAL WAS FAVORABLY
DETERMINED BY THE CIVIL SERVICE COMMISSION AND WHO HAD INITIALLY
APPEALED TO THIS OFFICE FOR RETROACTIVE PAY ON THE BASIS OF THAT
RECLASSIFICATION DETERMINATION FOR THE PERIOD PRIOR TO THE EFFECTIVE
DATE OF THE CLASSIFICATION ACTION. IN DENYING THE EMPLOYEE'S CLAIM, WE
STATED IN B-140785, OCTOBER 19, 1959, AS FOLLOWS:
"THERE IS NOTHING IN THE FILE TO SHOW THAT THE POSITION YOU HELD WAS
DOWNGRADED ILLEGALLY OR OTHERWISE. YOUR CASE INVOLVES THE INITIAL
ADMINISTRATIVE CLASSIFICATON OF THE POSITION. AS INDICATED IN OUR
SETTLEMENT OF JULY 16, 1959, THE MATTER OF DETERMINING THE PROPER
ALLOCATION OF POSITION IN THE DEPARTMENTAL SERVICE IS VESTED IN THE
ADMINISTRATIVE OFFICE CONCERNED, SUBJECT TO REVIEW BY THE CIVIL SERVICE
COMMISSION. SEE SECTION 502 OF THE CLASSIFICATION ACT OF 1949, 63 STAT.
754 (5 U.S.C. SEC. 1102). THAT SECTION SPECIFICALLY SAYS THAT THE
CLASSIFICATION ACTIONS OF THE DEPARTMENT 'SHALL BE THE BASIS FOR THE
PAYMENT OF COMPENSATION AND FOR PERSONNEL TRANSACTIONS UNTIL CHANGED BY
CERTIFICATE OF THE COMMISSION.' THEREFORE, THE GENERAL RULE IS THAT WHEN
A POSITION HAS BEEN RECLASSIFIED TO A HIGHER GRADE AS THE RESULT OF AN
APPEAL TO THE CIVIL SERVICE COMMISSION, THERE IS NO AUTHORITY TO MAKE
THE SALARY RATE RETROACTIVELY EFFECTIVE. THE EFFECTIVE DATE OF THE
SALARY CHANGE IS GOVERNED BY CHAPTER P2-20 OF THE FEDERAL PERSONNEL
MANUAL REFERRED TO IN OUR SETTLEMENT OF JULY 16, 1959, AND AND CHAPTER
P2-23, 5 CFR 36.1(C). AS INDICATED ABOVE, HOWEVER, THE RETROACTIVE
PROVISION THEREIN COVERING DOWNGRADING ACTIONS WHEN AN APPEAL IS TAKEN
WITHIN THE PRESCRIBED PERIOD IS NOT APPLICABLE TO YOUR CASE. THE
POSITION IN QUESTION WAS AT NO TIME CLASSIFIED BY PROPER AUTHORITY IN
GRADE GS-13 PRIOR TO THE COMMISSION'S ACTION ON YOUR APPEAL. THERE IS
NO EVICENCE OF RECORD THAT THE CLASSIFICATON ACTION ORIGINALLY TAKEN IN
YOUR CASE WAS OTHER THAN A BONA FIDE ACTION TAKEN UNDER THE AUTHORITY
CONFERRED UPON YOUR AGENCY. MOREOVER, ONE WHO HOLDS A FEDERAL POSITION
IS ENTITLED TO NO MORE THAT THE SALARY PRESCRIBED FOR THE POSITION OR
OFFICE TO WHICH HE WAS APPOINTED REGARDLESS OF WHETHER HE PERFORMS THE
DUTIES OF AN OFFICE OF HIGHER GRADE. SEE GEORGE L. COLEMAN V. UNITED
SATES, 100 CT. CL. 41, AND CASES THERE CITED."
THE COURT OF CLAIMS IN THAT CASE AFFIRMED THE HOLDING BY THIS OFFICE
THAT THERE WAS NO AUTHORITY TO GIVE RETROACTIVE EFFECT TO THE SALARY
RATE AS DETERMINED UPON THE CLASSIFICATION APPEAL AND DENIED PLAINTIFF'S
CLAIM.
IN LINE WITH THE FOREGOING ANALYSIS AND WITH THE HOLDING OF THE COURT
OF CLAIMS IN THE DIANISH CASE, WE FIND NO BASIS TO AWARD MR. BERGANTINO
COMPENSATION BASED ON THE RECLASSIFICATION OF HIS POSITION AS A GS-12
FOR ANY PERIOD OF THE TIME PRIOR TO THE EFFECTIVE DATE OF THE
CLASSIFICATION ACTION.
B-180606, AUG 20, 1974
HEADNOTES-UNAVAILABLE
1. PROPOSAL TO SUPPLY COMPLETE TECHNICAL AND ECONOMIC DATA PACKAGE
FOR INTERIM STANDARD MICROWAVE LANDING SYSTEM PROPERLY REJECTED AS NOT
WITHIN COMPETITIVE RANGE WHERE FLIGHT TESTING BY FAA SHOWED THAT OFFERED
LANDING SYSTEM WOULD NOT MEET PERFORMANCE SPECIFICATIONS, SINCE
DETERMINATION WHETHER PROPOSAL IS TECHNICALLY ACCEPTABLE IS MATTER OF
ADMINISTRATIVE JUDGEMNT WHICH WILL NOT BE DISTURBED ABSENT CLEAR SHOWING
OF ABUSE. FURTHERMORE, RECORD FAILS TO SUPPORT CONTENTION THAT TESTING
PROCEDURES WERE UNFAIR. MOREOVER, ANY POSSIBLE COST ADVANTAGE TO
POTENTIAL USERS OF SYSTEM WAS NOT DETERMINATIVE FACTOR SINCE TECHNICAL
PROPOSAL WAS UNACCEPTABLE.
2. PROTEST AFTER EVALUATION AND SELECTION DECISION THAT
SPECIFICATIONS FOR LANDING SYSTEM DID NOT REFLECT USER NEEDS IS NOT FOR
CONSIDERATION ON MERITS BECAUSE UNDER 4 C.F.R. 20.2(A), GAO BID PROTEST
REGULATIONS, PROTEST BASED UPON ALLEGED IMPROPRIETIES IN SOLICITATION
WHICH ARE APPARENT PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS MUST
BE FILED PRIOR THERETO.
THE SINGER COMPANY - KEARFOTT DIVISION:
ON MAY 30, 1973, REQUEST FOR PROPOSALS (RFP) WA5S-3-0942, WAS ISSUED
BY THE FEDERAL AVIATION ADMINISTRATION, ATC-AIRPORT FACILITIES SECTION,
FOR A COMPLETE TECHNICAL AND ECONOMIC DATA PACKAGE FOR AN INTERIM
STANDARD MICROWAVE LANDING SYSTEM (ISMLS) FOR DOMESTIC USE. THE
STATEMENT OF WORK PROVIDED THAT FOR A FIXED PRICE OF $25,000, THE
SUCCESSFUL OFFEROR WOULD FURNISH A COMPLETE DATA PACKAGE FOR FUTURE
GOVERNMENT AND NON-GOVERNMENT PROCUREMENT OF ISMLS GROUND STATIONS AND
AIRBORNE EQUIPMENTS, INCLUDING THE NECESSARY LICENSING AGREEMENTS AND
ROYALTY PROVISIONS TO ENABLE OTHER MANUFACTURERS TO BUILD AND SELL
GROUND AND AIRBORNE SUBSYSTEMS TO THE SAME SPECIFICATIONS AS THOSE OF
THE CONTRACTOR SHOULD HIS SYSTEM BECOME THE APPROVED STANDARD. PHASE I
OF THE EVALUATION CALLED FOR A REVIEW OF THE TECHNICAL AND ECONOMIC DATA
PACKAGE REQUIRED TO ACCOMPLISH THE STATEMENT OF WORK. ONLY OFFERORS WHO
SUBMITTED ACCEPTABLE PROPOSALS UNDER PHASE I WOULD BE ELIGIBLE FOR PHASE
II, WHICH WAS TO CONSIST OF THE FLIGHT TESTING OF ITS EQUIPMENT IN
ACCORDANCE WITH ISMLS OPERATIONAL TESTS (WHICH WERE INCORPORATED INTO
THE RFP) TO VERIFY COMPLIANCEE WITH THE TECHNICAL REQUIREMENTS OF THE
ISMLS PERFORMANCE SPECIFICATIONS SET FORTH AS EXHIBIT A OF THE RFP. FOR
THE PHASE II EVALUATION, OFFERORS WERE REQUIRED TO FURNISH, INSTALL,
TUNE-UP, AND MAINTAIN THEIR COMPLETE GROUND SYSTEMS WITHIN SEVEN
CALENDAR DAYS AFTER NOTIFICATION BY THE CONTRACTING OFFICER. FURTHER,
WITHIN TWO CALENDAR DAYS AFTER NOTIFICATION BY THE CONTRACTING OFFICER,
OFFERORS WERE REQUIRED TO PROVIDE ALL AIRBORNE COMPONENTS OF THE ISMLS
REQUIRED FOR INSTALLATION AND MAINTENANCE BY THE GOVERNMENT IN A DC-3
TYPE AIRCRAFT, ALONG WITH AN ENGINEERING CONSULTANT TO FURNISH TECHNICAL
ADVICE RELATIVE TO THE INSTALLATION AND MAINTENANCE. THE ISMLS WILL BE
USED AT LOCATIONS WHERE A VHF/UHF ILS WILL NOT PERFORM IN AN EFFECTIVE
MANNER, OR WHERE THE NEEDS FOR LOW APPROACH SERVICE WOULD BE BETTER MET
BY THE USE OF THE INTERIM STANDARD SYSTEM.
THE CLOSING DATE FOR SUBMISSION OF PROPOSALS WAS SET FOR JULY 3,
1973. ON THAT DATE OFFERS WERE RECEIVED FROM BOEING ELECTRONICS, SINGER
COMPANY, AND TULL AVIATION COPORATION. ON JULY 23, 1973, THE INITIAL
EVALUATION OF THE TECHNICAL PROPOSALS AND ECONOMIC DATA PACKAGES OF THE
THREE OFFERORS WAS COMPLETED BY THE TECHNICAL AND ECONOMIC EVALUATION
TEAMS. THE EVALUATION NOTED THE SUPERIORITY OF THE SINGER PROPOSAL AND
THE EXPECTATION THAT THE PHASE II TESTING WOULD RESULT IN VERIFICATION
OF THE FLIGHT DATA SUBMITTED WITH THE PROPOSAL. THEREFORE, THE SOURCE
EVALUATION BOARD (SEB) RECOMMENDED TO THE CONTRACTING OFFICER THAT ONLY
SINGER BE ALLOWED TO PROCEED WITH PHASE II TESTING.
THE CONTRACTING OFFICER, HOWEVER REJECTED THIS RECOMMENDATION AND
ELECTED TO AUTHORIZE PHASE II TESTING FOR ALL THREE PROPOSALS SUBMITTED.
SUBSEQUENT TO COMPLETION OF THE TESTING, THE TECHNICAL EVALUATION
TEAM CONVENED ON JANUARY 7, 1974, TO COMPLETE EVALUATION OF THE
TECHNICAL PROPOSALS BASED ON THE INFORMATION OBTAINED DURING THE PHASE
II OPERATIONAL TESTS AND COMPLETED ITS FINAL REPORT ON JANUARY 14, 1974.
THE TEAM CONCLUDED THAT THE TULL AVIATION SYSTEM WAS THE ONLY SYSTEM
FLIGHT CHECKED WHICH MET ALL FLIGHT REQUIREMENTS AND, THEREFORE, WAS THE
ONLY SYSTEM TECHNICALLY ACCEPTABLE. SINGER WAS ADVISED BY LETTER DATED
FEBRUARY 1, 1974, THAT IT WAS NOT WITHIN THE TECHNICAL COMPETITIVE RANGE
AND HAD BEEN ELIMINATED FROM FURTHER CONSIDERATION. THE LETTER ALSO
POINTED OUT THE DEFICIENCIES NOTED IN THE OPERATIONAL TESTING PHASE OF
THE EVALUATION WHICH LED TO THE ELIMINATION OF THE SINGER PROPOSAL.
SINGER PROTESTS THE FAA DECISION TO EXCLUDE IT FROM NEGOTIATIONS,
BASICALLY ON THE GRAOUND THAT ALLEGED INCONSISTENCIES IN THE EVALUATION
METHODS AND PROCEDURES EMPLOYED BY THE FAA RESULTED IN THE DECISION TO
NEGOTIATE ONLY WITH TULL. SPECIFICALLY, SINGER CLAIMS THAT THE RFP
PRESCRIBED A SEQUENTIAL PROCEDURE FOR INSTALLATION AND CHECK OUT WHICH
WAS VIOLATED IN FAVOR OF TULL. IT IS CONTENDED THAT THE EVALUATION OF
THE FLIGHT TEST RESULTS WAS IN ERROR. SINGER ALLEGES THAT THE GROUND
RULES WERE CHANGED DURING THE COURSE OF THE FLIGHT TEST WHICH SHOWED
FAVORITISM TO TULL AND WAS PREJUDICAIAL TO SINGER. IT IS ALSO CONTENDED
THAT THE ECONOMIC DATA PACKAGE REQUIRED BY THE RFP WAS NOT PROPERLY
CONSIDERED IN THE SELECTION PROCESS. FINALLY, SINGER ALLEGES THAT AN
AMENDMENT TO THE SOLICITATION, WHICH HAD THE EFFECT OF LIMITING
CONSIDERATION TO A SPLIT SIT SYSTEM, EXCLUDING THE CO-LOCATED SYSTEM,
CAUSED THE RFP TO CONFLICT WITH THE REQUIREMENTS OF THE ANTICIPATED
USERS (LOCAL AIRPORTS) OF THE ISMLS.
AS EXPLAINED BELOW, WE DO NOT AGREE WITH THE ABOVE CONTENTIONS.
WITH REGARD TO SINGER'S FIRST CONTENTION, THE RECORD SHOWS THAT BY
TELECON DATED OCTOBER 9, 1973, THE CONTRACTING OFFICER NOTIFIED SINGER
THAT THE PHASE II OPERATIONAL TESTS WERE TO BE PERFORMED, AND THAT IN
ACCORDANCE WITH THE SEQUENTIAL TESTING SCHEME SET FORTH IN THE RFP AND
RECOUNTED ABOVE, SINGER WAS TO DELIVER ALL AIRBORNE COMPONENTS TO THE
NATIONAL AVIATION FACILITIES EXPERIMENTAL CENTER (NAFEC), ATLANTIC CITY,
NEW JERSEY, FOR INSTALLATION NO LATER THAN OCTOBER 11, 1973. FURTHER,
THE OCTOBER 9, 1973, COMMUNICATION ADVISED THAT THE COMPLETE GROUND
SYSTEM SHOULD BE INSALLED AT RICHARD EVELYN BYRD INTERNATIONAL AIRPORT,
RICHMOND, VIRGINIA, BY OCTOBER 16, 1973. SIMILARLY, BY TELECON DATED
OCTOBER 12, 1973, TULL AVIATION WAS ADVISED TO DELIVER ALL AIRBORNE
COMPONENTS TO NAFEC NO LATER THAN OCTOBER 23, 1973, AND DELIVER TO
RICHMOND ITS COMPLETE GROUND SYSTEM ON OCTOBER 19, 1973, AND INSTALL
WHEN SO ADVISED.
THE SINGER AIRBORNE SYSTEM WAS INSTALLED AT NAFEC ON SCHEDULE.
SINGER BEGAN INSTALLATION OF ITS GROUND SYSTEM AT RICHMOND ON OCTOBER
12, 1973, AND NOTIFIED THE FAA THAT IT WAS READY FOR TESTING AT 2:00
P.M. ON OCTOBER 16, 1973. FLIGHT TESTING WAS CONDUCTED EVERY DAY FROM
OCTOBER 16, 1973, UNTIL COMPLETION OF THE FLIGHT CHECK ON OCTOBER 21,
1973, INCORPORATING A TOTAL OF 26.1 FLIGHT HOURS.
TULL AVIATION WAS NOTIFIED TO PROCEED WITH INSTALLATION OF ITS GROUND
SYSTEM ON OCTOBER 19, 1973, AND TO HAVE AIRBORNE EQUIPMENT AT NAFEC ON
OCTOBER 23, 1973, FOR INSTALLATION. IT IS REPORTED THAT THE TWO-DAY
REQUIREMENT FOR ARICRAFT INSTALLATION COULD NOT BE APPLIED BECAUSE THE
FAA AIRCRAFT WAS STILL FLIGHT CHECKING THE SINGER SYSTEM ON OCTOBER 19,
AND DID NOT FINISH UNTIL OCTOBER 21, 1973. THE TULL AVIATION AIRBORNE
EQUIPMENT WAS RECEIVED AS REQUESTED AND INSTALLED THE SAME DAY. TULL
RELEASED ITS SYSTEM TO FAA PERSONNEL FOR FLIGHT EVALUATION ON OCTOBER
26, 1973. FLIGHT TESTING WAS CONDUCTED EVERY DAY, STARTING ON OCTOBER
27, 1973, UNTIL COMPLETION ON OCTOBER 30, 1973, UTILIZING A TOTAL OF
21.7 FLIGHT HOURS.
ALL TESTING WAS COMPLETED IN OCTOBER 1973, EXCEPT FOR THE
RANGE-IN-RAIN CHECK WHICH WAS NOT ACCOMPLISHED UNTIL NOVEMBER 28, 1973.
THE RFP REQUIRED THAT THE SYSTEM BE ABLE TO PROVIDE ALL OF THE
PERFORMANCE PARAMETERS SPECIFIED UNDER CONDITIONS OF LIGHT TO MODERATE
RAINFALL OVER THE ENTIRE PATH. THIS TEST WAS PERFORMED SIMULTANEOUSLY
ON BOTH THE SINGER AND TULL SYSTEMS. (A TEST WAS MADE ON OCTOBER 27,
1973, WITH BOTH SYSTEMS OPERATING SIMULTANEOUSLY IN ORDER TO INSURE
COMPATIBILITY, I.E., LACK OF INTERFERENCE.) IT IS REPORTED THAT THE
RAINFALL WHICH DID MATERIALIZE ON THIS DATE--THE FOURTH ATTEMPT TO
CONDUCT THIS TEST--WAS ONLY MARGINALLY ADEQUATE AND INSUFFICIENT TO
DERIVE COMPLETE RESULTS, FOR AT NO TIME WAS THE ENTIRE COURSE
ENCOMPASSED WITH RAIN CONDITIONS. THEREFORE, THE RESULTS OF THE RAIN
TEST WERE DISCARDED AND NOT CONSIDERED IN THE FINAL EVALUATION AND
SELECTION PROCESS.
BASICALLY, THE SINGER ALLEGATION THAT TULL WAS AFFORDED MORE TIME TO
INSTALL ITS SYSTEM IN VIOLATION OF THE TIME PARAMETERS SET FORTH IN THE
RFP CONCERNS THE FACT THAT TULL WAS NOTIFIED THAT IT WAS SELECTED FOR
TESTING ONE WEEK BEFORE INSTALLATION WAS TO BEGIN, WHILE SINGER
SIMULTANEOUSLY RECEIVED ITS SELECTION NOTICE WITH INSTRUCTIONS TO BEGIN
INSTALLATION. THIS, ACCORDING TO SINGER, AFFORDED TULL A "GET READY"
PERIOD OF ONE WEEK, WHEREAS SINGER WAS DENIED SUCH A PERIOD. HOWEVER,
TULL AVIATION WAS NOT PERMITTED TO PROCEED WITH INSTALLATION UNTIL SO
ADVISED AND HAD THE SAME 7-DAY PERIOD ONCE ALLOWED TO BEGIN. SINGER
ALSO ALLEGES THAT EVEN IF THE ONE WEEK "GET READY" PERIOD IS IGNORED,
TULL WAS GIVEN 8 DAYS TO COMPLETE INSTALLATION AS TESTING OF THE TULL
SYSTEM DID NOT BEGIN UNTIL OCTOBER 27, 1973. FAA REPORTS, HOWEVER, THAT
TULL RELEASED ITS SYSTEM TO FAA FOR FLIGHT EVALUATION ON OCTOBER 26,
1973, WITHIN THE 7-DAY PERIOD ESABLISHED FOR INSTALLATION. ALTHOUGH
TULL WAS ADVISED ON OCTOBER 19 TO HAVE ITS AIRBORNE EQUIPMENT AT NAFEC
ON THE 23RD FOR INSTALLATION, THE TWO-DAY PERIOD WAS NOT APPLIED BECAUSE
FAA WAS STILL FLIGHT TESTING THE SINGER EQUIPMENT AND DID NOT COMPLETE
THIS TESTING UNTIL THE 21ST. THE TULL EQUIPMENT WAS RECEIVED AND
INSTALLED ON OCTOBER 23, 1973. FROM THE FOREGOING, IT IS OUR VIEW THAT
THE TESTING WAS FAIR AND EQUAL, AND ESSENTIALLY IN ACCORDANCE WITH THE
SEQUENCE SPECIFIED IN THE RFP. FURTHERMORE, ACCORDING TO SINGER, IT
REQUESTED AND WAS PERMITTED TO CONDUCT TESTING OF ITS EQUIPMENT AT
RICHMOND IN AUGUST 1973.
WITH REGARD TO THE TECHNICAL EVALUATION, THE DEFICIENCIES RELATING TO
THE SINGER LOCALIZER WERE AS FOLLOWS: COURSE ROUGHNESS UP TO + 38 UA IN
THE AREA ONE MILE TO THRESHOLD (REQUIRED TO BE LESS THAN 22 UA);
CLEARANCE ONLY TO + 29 DEGREES WITH 12.0 DEGREES WIDTH (REQUIRED TO BE +
35 DEGREES); ALIGNMENT MONITOR DID NOT PROPERLY DETECT OUT OF TOLERANCE
COURSE SHIFTS AS DEMONSTRATED AND ERRONEOUS COURSE INFORMATION;
IDENTIFICATION INTERFERED WITH COURSE INDICATIONS AT LOCATIONS OUTSIDE
OF THE COURSE SECTOR; UNABLE TO REDUCE POWER OF RF POWER MONITOR ALARM
LIMIT TO DEMONSTRATE USABLE DISTANCE IN THAT CONDITION; UNABLE TO
SIMULATE COURSE WIDTH AT BROAD AND NARROW MONITOR ALARM LIMITS TO
DEMONSTRATE MONITOR PERFORMANCE AND COURSE BEHAVIOR UNDER THESE
CONDITIONS; UNABLE TO DEMONSTRATE 3.0 DEGREES COURSE WIDTH; AND SIGNAL
WAS REDUCED 43% DURING RAINFALL (THIS REDUCTION AT 10 DEGREES ON LEFT
SIDE OF COURSE PROBABLY WOULD RESULT IN INADEQUATE COVERAGE). THE
DEFICIENCIES RELATING TO THE SINGER GLIDE SLOPE WERE: AT AN ANGLE OF
3.0 DEGREES, NARROW AND BROAD ALARM WIDTH MONITORS COULD NOT BE
SIMULATED AND RF POWER COULD NOT BE REDUCED TO EVALUATE USABLE DISTANCE
ACCORDING TO THE SPECIFICATION; AT AN ANGLE OF 6.0 DEGREES, PERFORMANCE
WAS EXCELLENT IN EVERY RESPECT, EXCEPT FOR REDUCING RF POWER TO
DEMONSTRATE USABLE DISTANCE.
IN SUPPORT OF ITS CONTENTION THAT THE FAA'S TESTING AND EVALUATION
CONTAINED SIGNIFICANT ERRORS, SINGER HAS SUBMITTED A DETAILED DISCUSSION
AND REBUTTAL TO EACH AREA OF THE OPERATIONAL TEST RESULTS THAT THE FAA
REGARDED AS A DEFICIENCY. SINGER'S DISAGREEMENT WITH FAA AS TO THE
VALIDITY OF THE VARIOUS DEFICIENCIES IS BASED UPON ONE OR MORE OF THE
FOLLOWING GROUNDS:
1. NOT REQUIREMENTS OF THE RFP.
2. BASED UPON PARTIAL DATA THAT THE FAA GATHERED, WHICH WAS NOT THE
THE FINAL DEMONSTRATED DATA.
3. ATTRIBUTABLE TO A LACK OF FAA'S FULL UNDERSTANDING OF MICROWAVE
LANDING SYSTEMS AS COMPARED TO VHF/ILS.
4. BASED UPON DATA THAT HAS BEEN WITHHELD FROM SINGER.
5. ATTRIBUTABLE TO SINGER NOT HAVING BEEN GRANTED THE SAME PERIOD OF
READINESS FOR FLIGHT TESTING AS GRANTED TO TULL.
6. FAA'S DECISION NOT TO RETEST A PARAMETER.
7. FAA AIRCRAFT INSTALLATION PROBLEMS.
IN SUMMARY, SINGER CONTENDS THAT FAA HAS DATA IN ITS POSSESSION BASED
UPON THE TESTING AT RICHMOND WHICH PROVES ITS EQUIPMENT MET THE
SPECIFICATIONS; FAA MADE SERIOUS TECHNICAL ERRORS IN TESTING AND IN
ANALYSIS AND FAA "REWROTE HISTORY" BETWEEN THE DEBRIEFING AFTER THE
TESTING AND THE LETTER SETTING FORTH THE DEFICIENCIES.
FAA HAS RESPONDED IN DETAIL TO THESE CONTENTIONS AND INSISTS THAT ALL
PARAMETERS EVALUATED WERE SPECIFIED PERFORMANCE REQUIREMENTS IN EXHIBIT
A OF THE RFP. WITH REGARD TO THE CONTENTION THAT ITS DECISION WAS NOT
BASED UPON THE FINAL DEMONSTRATED DATA, FAA ASSUMES THAT THIS CHARGE IS
BASED UPON ITS FAILURE TO RECHECK THE LOCALIZER. FAA HAS RECOUNTED THE
SEQUENCE OF EVENTS CONCERNING TESTING OF THE LOCALIZER, POINTING OUT THE
OPPORTUNITES AFFORDED SINGER TO CORRECT THE OUT OF TOLERANCE CONDITION
BY BOTH ADJUSTMENT AND CHANGING EQUIPMENT, AND CONTENDS THAT IT WAS
JUSTIFIED IN HALTING FURTHER TESTING WHEN THE LOCALIZER WAS STILL OUT FO
TOLERANCE ON OCTOBER 27, 1973, AND PROCEEDING WITH THE TESTING OF THE
TULL EQUIPMENT. FAA DENIES THE CHARGE CONCERNING ITS PERSONNELS'
COMPETENCY, AND POINTS TO BOTH ORAL AND WRITTEN TESTIMONY FROM SINGER
PERSONNEL AS TO THE "PROFESSIONALISM, COURTESY AND COMPETENCY DISPLAYED
BY THE FAA EVALUATION TEAM DURING THE *** EVALUATION ***." AS TO THE
CONTENTION THAT DEFICIENCIES WERE BASED ON DATA WITHHELD FROM SINGER,
FAA STATES THAT SINGER WAS DEBRIEFED IN CONSIDERABLE DETAIL AFTER EACH
FLIGHT AND PARTICIPATED IN A REVIEW OF ALL RECORDINGS. FURTHER, IT IS
REPORTED THAT THE RFP PARAMETERS WERE DISCUSSED IN CONNECTION WITH THE
DATA OBTAINED, AND SINGER WAS INFORMED WHETHER THERE WAS ANY DEFICIENCY
BY SUCH TERMS AS "OUT OF TOLERANCE" OR "NOT WITHIN THE CRITERIA."
FINALLY, IT IS REPORTED THAT, EXCEPT FOR THE RAIN TESTS WHICH WERE NOT
COMPLETED, SINGER WAS GIVEN A FULL DEBRIEFING UPON COMPLETION OF THE
TESTING. AS TO THE CONTENTION THAT FAA DID NOT RETEST A PARAMETER, THE
AGENCY ASSUMES THAT THIS REFERS TO THE LOCALIZER, WHICH HAS PREVIOUSLY
BEEN DISCUSSED, AND THE ALIGNMENT MONITOR, WHICH FAA CONTENDS REQUIRED
NO FURTHER TESTING BASED ON THE TEST RESULTS. FAA DENIES THAT ANY
DEFICIENCIES WERE DUE TO ITS INSTALLATION PROBLEMS. IN THIS CONNECTION
, FAA POINTS OUT THAT INSTALLATION OF THE AIRBORNE EQUIPMENT WAS THE
RESPONSIBILITY OF THE OFFERORS AND SINGER WAS AFFORDED EVERY OPPORTUNITY
TO CORRECT ANY PROBLEMS IN ITS INSTALLATION AND WAS ASSISTED BY FAA
PERSONNEL.
THE DETERMINATION WHETHER A PROPOSAL IS TECHNICALLY ACCEPTABLE AND
WITHIN THE COMPETITIVE RANGE FOR NEGOTIATION IS A MATTER OF
ADMINISTRATIVE JUDGMENT, AND WE WILL NOT DISTURB THAT JUDGMENT ABSENT A
CLEAR SHOWING THAT THE AGENCY ACTED ARBITRARILY OR UNREASONABLY. 48
COMP. GEN. 314, 317 (1968); B-176077(5), JANUARY 26, 1973. WHILE IT IS
CLEAR THAT THERE IS STRONG DISAGREEMENT BETWEEN SINGER AND THE FAA AS TO
THE VALIDITY OF THE ALLEGED DEFICIENCIES RAISED BY THE FAA, IT IS
GENERALLY NOT THE FUNCTION OF OUR OFFICE TO RESOLVE TECHNICAL DISPUTES
OF THIS NATURE. 46 COMP. GEN. 606, 609 (1967), AND B-167508, DECEMBER
8, 1969.
THE RECORD INDICATES THAT A COMPREHENSIVE TECHNICAL EVALUATION OF THE
LANDING SYSTEMS WAS MADE THROUGH BOTH THE EXAMINATION OF THE WRITTEN
PROPOSALS AND THROUGH THE USE OF OPERATION TESTS IN ACCORDANCE WITH THE
REQUIREMENTS AND CRITERIA SET FORTH IN EXHIBIT A OF THE RFP. AS A
RESULT OR THIS EVALUATION, TULL RECEIVED A SCORE OF 80.3 AS COMPARED TO
SINGER'S SCORE OF 60.1. ALTHOUGH SINGER HAS PROVIDED DETAILED TECHNICAL
ARGUMENTS IN SUPPORTING IS PROTEST, WE ARE UNABLE TO CONCLUDE THAT THE
CONTRACTING AGENCY ABUSED ITS DISCRETION IN FINDING SINGER'S PROPOSAL
UNACCEPTABLE. THE OVERALL DETERMINATION OF THE TECHNICAL ADEQUACY OF
THE SINGER PROPOSED SYSTEM OF FAA'S PURPOSES IS PROPERLY THE FUNCTION OF
FAA, AND WE HAVE NOT ATTEMPTED TO MAKE AN INDEPENDENT DETERMINATION IN
THIS RESPECT. SEE B-164552(1), FEBRUARY 24, 1969, AND 51 COMP. GEN. 621
(1972).
WITH RESPECT TO THE SINGER CONTENTION THAT THE FLIGHT TESTS WERE
UNFAIRLY CONDUCTED, FAA MAINTAINS THAT NO FAVORITISM WAS SHOWN TO ANY OF
THE OFFERORS, AND THAT SINGER RECEIVED EVERY CONSIDERATION TO WHICH THEY
WERE ENTITLED. BELOW ARE SOME EXCERPTS FROM THE ADMINISTRATIVE REPORT
WHICH DEMONSTRATE, IN OUR VIEW, THAT THE TESTS WERE CONDUCTED FAIRLY:
"1. SINGER CONTENTION. THE FIRST GROUND RULE ESTABLISHED BY FAA WAS
NO PERSONNEL WOULD BE PERMITTED TO RIDE ABOARD THE DC-3 DURING THE TEST
PROGRAM. SINGER CONTENDS THAT TULL WAS PERMITTED TO PUT PEOPLE ABOARD
AND THIS GAVE TULL AN ADVANTAGE.
(FAA REPLY)
ONE GROUND RULE ESTABLISHED PRIOR TO THE EVALUATION PRECLUDED ANY OF
THE OFFEROR'S PERSONNEL BEING PRESENT ON THE AIRCRAFT DURING FLIGHT
CHECK. HOWEVER, THE RULES DID PERMIT ONE SHORT INITIAL FLIGHT WITH AN
OFFEROR'S ENGINEER ON BOARD STRICTLY FOR ASSESSING PERFORMANCE OF THEIR
AIRBORNE INSTALLATION FOR WHICH THEY WERE TOTALLY RESPONSIBLE. THIS WAS
AVAILABLE TO SINGER-KEARFOTT ON REQUEST. IN THE INSTANCE CITED BY
SINGER, THE TULL ENGINEERS OBSERVED THE OPERATION OF THEIR AIRBORNE
SYSTEM DURING A FLIGHT OF APPROXIMATELY FIFTEEN MINUTES DURATION; NO
GROUND PERFORMANCE DATA OR FLIGHT INSPECTION RECORDINGS RESULTING FROM
THIS FLIGHT WERE SHOWN TO THEM OR DISCUSSED. ON OCTOBER 18, 1973, AFTER
PERMITTING REINSTALLATION OF THE TALAR AIRBORNE UNIT AT ANOTHER LOCATION
ON THE FLIGHT INSPECTION AIRCRAFT, MR. RICHARD JONES (SINGER) WAS ASKED
BY MR. P. M. KEHOE (FAA) IF HE DESIRED AN AIRBORNE CHECK OF HIS
INSTALLATION BEFORE COMMENCING THE EVALUATION. MR. JONES ADVISED THAT
IT WOULD NOT BE NECESSARY. (SINGER HAD CONDUCTED EXTENSIVE TESTS WITH
THEIR GROUND TEST EQUIPMENT. ON OCTOBER 31, MESSRS. JONES AND SAUNDERS,
AND ON NOVEMBER 27 MR. JONES ACCOMPANIED THE FLIGHT CREW TO RICHMOND ON
THE FAA AIRCRAFT FOR TRANSPORTATION PURPOSES. THIS WAS PERMITTED TO
ASSIST SINGER IN ARRIVING AT THE EVALUATION SITE IN A TIMELY MANNER TO
AVOID POSSIBLE DELAY IN CONDUCTING THE VALUATION.
THE ALLEGATION THAT TULL WAS GRANTED MORE FAVORABLE CONSIDERATION IS
WITHOUT BASIS. ON THE CONTRARY, SINGER-KEARFOTT WAS ALLOWED
CONSIDERATIONS WHICH WERE NOT TAKEN ADVANTAGE OF BY TULL. SINGER WAS
ALLOWED TO REPOSITION THEIR AIRBORNE ANTENNA, REPLACE SEVERAL SYSTEM
COMPONENTS, AND THEY RECEIVED DEVELOPMENTAL IN-FLIGHT ASSISTANCE FROM
FAA IN GROUND ANTENNA ADJUSTMENTS. FAA FLEW A TOTAL OF 26.1 HOURS ON
THE SINGER SYSTEM AS COMPARED TO 21.7 HOURS FOR TULL.
SINGER'S CONTENTION THAT THEY WERE NOT AFFORDED A SIMILAR OPPORTUNITY
TO ISOLATE THOSE INSTALLATION PROBLEMS AND CORRECT THEM PRIOR TO
OFFICIAL FLIGHTS IS CLEARLY REFUTED BY THE ACTUAL EVENTS AND THE
OPPORTUNITIES AFFORDED SINGER TO CORRECT ANY PROBLEMS IN THEIR GROUND
AND/OR AIRBORNE EQUIPMENT.
"2. SINGER CONTENTION. ON OCTOBER 18, WHEN PROBLEMS WITH THE
CALIBRATION OF THE SINGER LOCALIZER BECAME APPARENT, FAA WAS ASKED TO
FLY THE GLIDE SLOPE ANTENNA VERIFICATION WHILE NECESSARY ADJUSTMENTS
COULD BE MADE TO THE LOCALIZER ANTENNA. FAA INSISTED ON COMPLETING THE
LOCALIZER VERIFICATION BEFORE MOVING THE GLIDE SLOPE. THIS PROCEDURAL
INCONSISTENCY GAVE TULL TWO ADDITIONAL EVENINGS TO FLIGHT TEST AND TUNE
THEIR LOCALIZER. IT SHOULD BE NOTED THAT TWO OF THE DISCREPANCIES
LISTED BY FAA ARE FROM DATA GATHERED FLYING AGAINST THIS DAMAGED
ANTAENNA.
(FAA REPLY)
TULL AVIATION WAS NOT GRANTED ANY FAVORITISM ON SITE BY FAA PERSONNEL
INVOLVED. THE DECISION TO FLIGHT TEST THE TULL GLIDE SLOPE AFTER
ENCOUNTERING MINOR PROBLEMS WITH THEIR LOCALIZER DID NOT VIOLATE ANY
ESTABLISHED GROUND RULES. THE DECISION WAS BASED ON THE FACT THAT THE
GLIDE SLOPE WAS READY AND THEREFORE IT WOULD BE ADVANTAGEOUS TO CONTINUE
THE TESTING BECAUSE OF THE EXPENSE OF GOVERNMENT PERSONNEL AND AIRCRAFT
HAVING TO WAIT UNTIL THE LOCALIZER PROBLEM WAS CORRECTED. FURTHERMORE,
THE FAA WAS ASSURED THAT THE PROBLEM WAS IDENTIFIED AND COULD BE
CORRECTED ON SITE. ONE KEY FACT IS THAT EVEN WITH THE MINOR PROBLEM
ENCOUNTERED, THE TULL AVIATION LOCALIZER HAD BEEN WITHIN TOLERANCE.
TULL PERSONNEL STATED THAT THEY WOULD LIKE TO TRY TO IMPROVE THE
PERFORMANCE AND REQUESTED THAT FLIGHT EVALUATION BE TRANSFERRED TO THE
GLIDE SLOPE WHICH WAS READY. CONSIDERING THAT THE TULL AVIATION SYSTEM
WAS IN TOLERANCE, THAT MERELY SOME FIELD ADJUSTMENT WAS REQUESTED, AND
THAT THE GLIDE SLOPE WAS READY FOR FLIGHT EVALUATION, THE PROJECT
MANAGER ELECTED TO FLIGHT TEST THE GLIDE SLOPE WHILE TULL MADE
ADJUSTMENTS TO THE LOCALIZER.
IT SHOULD BE NOTED THAT THE 'DAMAGED' ANTENNA (SINGER'S REFERRED TO
BY SINGER IS THE FIXED BEAM ANTENNA WHICH REPLACED THE VARIABLE WIDTH
ANTENNA. SINGER HAD ALREADY BEEN PERMITTED A MAJOR SYSTEM COMPONENT
CHANGE NOT MERELY AN ADJUSTMENT. THE FIXED BEAM ANTENNA IS THE STANDARD
4.6 DEGREES ANTENNA USED IN THE SINGER SYSTEM. THE SINGER DIFFICULTIES
REQUIRED EXTENSIVE FLIGHT CHECKING AND DATA GATHERING BY THEIR AIRCRAFT
AND WAS EVEN SUPPLEMENTED BY THE FAA AIRCRAFT. THE FAA FLIGHT
EVALUATION HAD IDENTIFIED A SERIOUS PROBLEM WITH THE SINGER LOCALIZER
(REGARDLESS OF THE ANTENNA BEING USED) WHICH WAS, IF NOT CORRECTABLE, A
MAJOR DEFICIENCY. THE PROJECT MANAGER DECIDED, QUITE CORRECTLY, TO
ALLOW SINGER EVERY OPPORTUNITY TO CORRECT THE SITUATION AND TO CONTINUE
WITH THE FLIGHT EVALUATION OF THE LOCALIZER."
WE HAVE HELD THAT THE ESTABLISHMENT OF PROCEDURES, INCLUDING THE
RESPONSIBILITY OF DETERMINING THE TESTING NECESSARY FOR PRODUCT
ACCEPTABILITY, IS WITHIN THE AMBIT OF THE EXPERTISE OF THE COGNIZANT
TECHNICAL ACTIVITY. SEE B-176256, NOVEMBER 30, 1972. SINCE IN THE
INSTANT CASE TECHNICAL PERSONNEL HAVING RESPONSIBILITY FOR THE TESTING
AND EVALUATION OF THE LANDING SYSTEM DETERMINED THAT THE TESTING
CONDUCTED WAS IN ACCORDANCE WITH THE SOLICITATION PROVISIONS AND THAT
FURTHER TESTING OF THE SINGER SYSTEM WOULD NOT HAVE ALTERED THE
CONCLUSIONS REACHED CONCERNING ITS ABILITY TO MEET THE SPECIFICATION
REQUIREMENTS, THERE IS NO BASIS FOR OUR OFFICE TO INTERPOSE AN OBJECTION
TO THE DETERMINATION THAT THE SINGER SYSTEM AS TESTED DID NOT MEET THE
SPECIFICATIONS AS REQUIRED. WHILE SINGER OBVIOUSLY DOES NOT AGREE WITH
THAT VIEW, THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE REJECTION
OF SINGER'S PROPOSAL WAS THE RESULT OF ANYTHING OTHER THAN THE
REASONABLE JUDGMENT OF THE FAA'S TECHNICAL EXPERTS. ALTHOUGH IT IS
POSSIBLE THAT SOME OTHER TECHNICAL EXPERTS MAY DISAGREE WITH THE FAA, WE
DO NOT BELIEVE IT IS APPROPRIATE FOR THIS OFFICE TO QUESTION THE FAA'S
TECHNICAL JUDGMENT WHEN THAT JUDGEMENT HAS A REASONABLE BASIS, MERELY
BECAUSE THERE MAY BE DIVERGENT TECHNICAL OPINIONS AS TO THE EFFICACY AND
VALIDITY OF A TESTING PROCEDURE.
SINGER HAS CONTENDED THAT THE FAA DID NOT PROPERLY CONSIDER THE
ECONOMIC DATA PACKAGE THAT WAS PART OF THE PHASE I EVALUATION IN THE
SELECTION PROCESS. SINGER HAS STRESSED THE FACT THAT ITS PROPOSAL
REPRESENTED THE LOWEST COST TO POTENTIAL USERS OF THE MICROWAVE LANDING
SYSTEM. IT SHOULD BE POINTED OUT THAT THE SUBJECT CONTRACT IS FOR A
FIXED PRICE OF $25,000.00, SO THAT THE COST THAT SINGER REFERS TO IS
POTENTIAL COST TO BE INCURRED BY USER FACILITIES UNDER FUTURE CONTRACTS
TO WHICH THE FAA WILL NOT BE A CONTRACTING PARTY. SINCE THE PROCURING
ACTIVITY DID NOT CONSIDER THE SINGER TECHNICAL PROPOSAL ACCEPTABLE DUE
TO ITS FAILURE TO MEET THE PERFORMANCE REQUIREMENTS OF THE SOLICITATION,
IT WAS NOT REQUIRED TO MAKE THE USER COST COMPARISON OF THE RESPECTIVE
SYSTEMS THE DETERMINATIVE FACTOR IN THE SELECTION DECISION. SINGER HAS
ALSO CONTENDED THAT TULL AVIATION WAS NOT TOTALLY RESPONSIVE TO THE
ECONOMIC DATA PACKAGE REQUIREMENTS. THE RECORD SHOWS THAT THE TULL
ECONOMIC DATA PACKAGE WAS CAREFULLY SCRUTINIZED BY THE ECONOMIC
EVALUATION TEAM AND SCORED NUMERICALLY IN ACCORDANCE WITH A
PREDETERMINED EVALUATION PLAN. ONE ASPECT OF THE TULL ECONOMIC PACKAGE
DID RECEIVE A LOW SCORE. HOWEVER, IT WAS CONSIDERED RESPONSIVE TO THE
RFP AND THE TOTAL SCORE FOR THE ECONOMIC PACKAGE WAS CONSIDERED
ACCEPTABLE FOR FURTHER NEGOTIATIONS.
WITH REGARD TO THE CONTENTION THAT BY THE ISSUANCE OF AMENDMENT 1 TO
THE RFP, WHICH ELIMINATED POSSIBLE CONSIDERATION OF A "CO-LOCATED" TYPE
OF MICROWAVE LANDING SYSTEM, THE FAA VIOLATED ITS PUBLISHED POLICY BY
NOT ADEQUATELY CONSIDERING THE REQUIREMENTS OF THE ANTICIPATED USERS OF
THE ISMLS, WE NOTE THAT SINGER DID NOT PROTEST THIS ALLEGED DEFICIENCY
BEFORE SUBMITTING ITS PROPOSAL. SECTION 20.2(A) OF OUR INTERIM BID
PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. 20.2(A), STATES IN PART THAT:
"*** PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF
SOLICITATION WHICH ARE APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF
PROPOSALS *** SHALL BE FILED PRIOR TO *** THE CLOSING DATE FOR RECEIPT
OF PROPOSALS."
SINCE THE ALLEGED DEFICIENCY WAS OR SHOULD HAVE BEEN APPARENT TO
SINGER PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS, THE PROTEST
AFTER ANNOUNCEMENT OF THE SELECTION DECISION WAS CLEARLY UNTIMELY AND IS
THEREFORE NOT FOR CONSIDERATION ON THE MERITS.
FINALLY, IN A LETTER DELIVERED TO OUR OFFICE ON AUGUST 14, 1974,
SINGER ADVISED THAT IT HAD RECENTLY LEARNED OF THE EXISTENCE OF CERTAIN
FAA DOCUMENTS PREPARED BY THE CHAIRMAN OF THE TECHNICAL EVALUATION TEAM
WHICH CONFIRM CERTAIN SINGER CONTENTIONS. ALTHOUGH WE WERE UNABLE TO
LOCATE ALL OF THESE DOCUMENTS, WE DISCUSSED THE MATTER WITH THE
CHAIRMAN, MR. BAGLEY. HE CONFIRMS SINGER'S ASSERTION THAT HE EXPRESSED
THE OPINION THAT THE SOLICITATION SHOULD NOT HAVE BEEN LIMITED TO THE
SPLIT SITE SYSTEM AND THAT THE TESTING SITE WAS NOT THE MOST APPROPRIATE
FOR PURPOSES OF THIS PROCUREMENT. HOWEVER, HE DENIED SINGER'S ASSERTION
THAT HE STATED THAT TULL DID NOT MEET THE TESTING REQUIREMENTS AND, IN
FACT, STATED THAT IT DID. IT IS OUR VIEW THAT MR. BAGLEY'S EXPRESSION
OF HIS PERSONAL OPINION CONCERNING THESE MATTERS DOES NOT REQUIRE OR
WARRANT ANY CHANGE IN THE CONCLUSIONS EXPRESSED ABOVE BASED UPON OUR
REVIEW OF THE OFFICIAL RECORD. FURTHERMORE, HIS VIEWS CONCERNING THE
SPLIT SITE SYSTEM AND TESTING SITE RELATE TO MATTERS WHICH WERE NOT
TIMELY RAISED. FINALLY, HE DID NOT CONFIRM SINGER'S ASSERTION
CONCERNING THE NONACCEPTABILITY OF THE TULL SYSTEM.
B-180927, AUG 20, 1974
HEADNOTES-UNAVAILABLE
WHERE AN EMPLOYEE OF THE VETERANS ADMINISTRATION HOSPITAL IS ASSIGNED
TO STANDBY DUTY AS ADMINISTRATIVE OFFICER OF THE DAY, AND SUCH DUTY
BASICALLY ENTAILS BEING AVAILABLE TO ANSWER OFFICIAL TELEPHONE CALLS IN
HIS OWN RESIDENTCE, THE EMPLOYEE IS NOT ENTITLED TO OVERTIME
COMPENSATION FOR PERIODS OF DUTY SINCE SUCH DUTY DOES NOT CONSTITUTE
HOURS OF WORK AS REQUIRED BY LAW.
MR. ARTHUR H. EASTER - OVERTIME COMPENSATION:
THIS IS A REQUEST FOR RECONSIDERATION OF THE ACTION TAKEN IN
SETTLEMENT CERTIFICATE OF DECEMBER 13, 1973, ISSUED BY OUR
TRANSPORTATION AND CLAIMS DIVISION DISALLOWING THE CLAIM OF MR. ARTHUR
H. EASTER FOR OVERTIME COMPENSATION ALLEGED TO BE DUE FROM JANUARY 1969
THROUGH OCTOBER 1970 FOR PERIODS IN WHICH HE WAS ON STANDBY DUTY AS
ADMINISTRATIVE OFFICER OF THE DAY (AOD) INCIDENT TO EMPLOYMENT WITH THE
VETERANS ADMINISTRATION (VA) HOSPITAL AT LOS ANGELES, CLAIFORNIA.
THE RECORD REVEALS THAT MR. EASTER WAS PERIODICALLY SCHEDULED ON THE
AOD ROSTER OF THE VA HOSPITAL AT LOS ANGELES. WHILE ASSIGNED TO AOD
DUTY, CLAIMANT WAS REQUIRED TO BE AVAILABLE AT HIS RESIDENCE TO ANSWER
ONLY EMERGENCY CALLS FROM 4:45 P.M. TO 8 A.M. ON WEEKDAYS AND FROM 8
A.M. TO 8 A.M. ON STATURDAY, SUNDAY AND HOLIDAYS. OVERTIME COMPENSATION
IS CLAIMED FOR THE PERIODS WHEN ASSIGNED TO AOD DUTY. PREMIUM PAY FOR
OVERTIME STANDBY DUTY IS AUTHORIZED UNDER 5 U.S.C. 5545 AND BY CIVIL
SERVICE REGULATIONS (5 CFR 550.141) IMPLEMENTING THE STATUTE IF CERTAIN
CONDITIONS ARE SATISFIED. 5 U.S.C. 5545(C) PROVIDES IN PERTINENT PART
AS FOLLOWS:
"C) THE HEAD OF AN AGENCY, WITH THE APPROVAL OF THE CIVIL SERVICE
COMMISSION, MAY PROVIDE THAT --
"(1) AN EMPLOYEE IN A POSITION REQUIRING HIM REGULARLY TO REMAIN AT,
OR WITHIN THE CONFINES OF, HIS STATION DURING LONGER THAN ORDINARY
PERIODS OF DUTY, A SUBSTANTIAL PART OF WHICH CONSISTS OF REMAINING IN A
STANDBY STATUS RATHER THAN PERFORMING WORK, SHALL RECEIVE PREMIUM PAY
FOR THIS DUTY ON AN ANNUAL BASIS ***"
CLAIMANT'S RESIDENCE WAS NEVER DESIGNATED AS HIS OFFICIAL STATION
ALTHOUGH IT WAS ON HOSPITAL GROUNDS. HENCE, IT CANNOT BE SAID THAT HE
WAS CONFINED TO HIS STATION AS REQUIRED BY LAW. MOREOVER, THE VA
HOSPITAL HAD NEVER APPROVED THE PREMIUM PAY. MR. EASTER, THEREFORE, IS
NOT ELIGIBLE FOR COMPENSATION UNDER THIS PROVISION OF LAW.
AN EMPLOYEE MAY ALSO QUALIFY FOR OVERTIME PAY FOR HOURS OF WORK IN
EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WEEK UNDER 5 U.S.C. 5542(A).
THE CIVIL SERVICE REGULATION IN IMPLEMENTATION OF THIS STATUTE, SETTING
FORTH CERTAIN ELIGIBILITY REQUIREMENTS FOR OVERTIME PAY, MAY BE FOUND IN
5 CFR 550.111 WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:
"SEC. 550.11 AUTHORIZATION OF OVERTIME PAY.
"(A) EXCEPT AS PROVIDED BY PARAGRAPH (D) OF THIS SECTION, OVERTIME
WORK MEANS EACH HOUR OF WORK IN EXCESS OF 8 HOURS IN A DAY OR IN EXCESS
OF 8 HOURS IN A DAY OR IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE
WORKWEEK THAT IS:
"(1) OFFICIALLY ORDERED OR APPROVED; AND
"(2) PERFORMED BY AN EMPLOYEE. "
THE ADMINISTRATIVE OFFICE STATED IN A MEMORANDUM TO MR. EASTER DATED
MAY 26, 1971, THAT A REVIEW OF HIS TIME CARDS WHILE EMPLOYED AT THE VA
HOSPITAL IN LOS ANGELES FAILED TO SHOW THAT DUTIES WERE PERFORMED BY HIM
AFTER NORMAL WORKING HOURS. IN THE CASE OF MOSS V. UNITED STATES, 173
CT. CL. 1169 (1965), WHERE A GOVERNMENT EMPLOYEE SUED TO RECOVER
OVERTIME COMPENSATION CLAIMED TO BE DUE HIM FOR TELPHONE STANDBY DUTY
TIME WHICH HE WAS ORDERED TO PERFORM IN HIM HOME FROM TIME TO TIME AFTER
REGULAR DAYTIME WORKING HOURS AND ON WEEKENDS, IT WAS HELD THAT ALTHOUGH
THE STANDBY DUTY WAS ORDERED AND APPROVED BY THE EMPLOYING AGENCY, THE
DUTY DID NOT CONSTITUTE "HOURS OF WORK" UNDER SECTION 201 OF THE FEDERAL
EMPLOYEES PAY ACT OF 1945, AS AMENDED (68 STAT. 1109, 5 U.S.C. 911
(1958) (NOW 5 U.S.C. 5542A), SINCE EXCEPT FOR THE REQUIREMENT THAT
PLAINTIFF REMAIN WITHIN HEARING DISTANCE OF THE TELEPHONE, HE WAS
OTHERWISE FREE TO ENJOY HIS NORMAL PURSUITS.
OUR OFFICE HAS CONSIDERED NUMEROUS CASES, SIMILAR TO THE PRESENT
CASE, WHEREIN THE EMPLOYEE WAS ORDERED TO PERFORM STANDBY DUTY BUT WAS
NOT RESTRICTED TO THE CONFINES OF HIS RESIDENCE. MR. EASTER
ACKNOWLEDGES THAT HE COULD LEAVE THE RESERVATION IF HE FOUND A
REPLACEMENT FROM AMONG THOSE LISTED IN THE OFFICER OF THE DAY REGISTER.
UNDER SUCH CIRCUMSTANCES WE HAVE HELD THAT THE EMPLOYEE IS NOT ENTITLED
TO OVERTIME COMPENSATION BECAUSE "ON CALL" DUTY AT HIS RESIDENCE,
WITHOUT MORE, DOES NOT CONSTITUTE "HOURS OF WORK" WITHIN THE MEANING OF
THE STATUTE. SEE B-167742, SEPTEMBER 9, 1969; B-144675, JANUARY 198
1961: B-173899, SEPTEMBER 27, 1971; AND CASES CITED THEREIN. OUR
VIEWS ARE IN CONSONANCE WITH THOSE OF THE COURT OF CLAIMS AS EXPRESSED
IN RAPP AND HAWKINS V. UNITED STATES, 167 CT. CL. 852 (1964), WHICH
HELD THAT STANDBY STATUS CANNOT BE SAID TO BE PREDOMINANTLY FOR THE
EMPLOYER'S BENEFIT, AND THEREFORE, IS NOT COMPENSABLE UNDER THE
CRITERION SET FORTH IN ARMOUR AND COMPANY V. WANTOCK, 323 U.S. 126, 133
(1944). THIS VIEW WAS REAFFIRMED IN MOSS V. UNITED STATES, 173 CT. CL.
1169, 1172 (1965), WHICH STATED:
"*** EXCEPT FOR THE REQUIREMENT THAT HE REMAIN WITHIN HEARING
DISTANCE OF THE TELEPHONE, THE CLAIMANT WAS FREE TO EAT, SLEEP, READ,
ENTERTAIN FRIENDS, AND OTHERWISE ENJOY HIS NORMAL PURSUITS WHILE ACTING
AS A DUTY OFFICER AT HOME. ***"
WHILE WE HAVE ON OCCASION APPROVED PAYMENT FOR ACTUAL WORKING TIME,
WE HAVE CONSISTENTLY REFUSED TO AUTHORIZE COMPENSATION FOR STANDBY TIME
ALONE. MR. EASTER STATES THAT DURING HIS STANDBY PERIODS HE RECEIVED
SEVERAL CALLS REQUIRING THAT HE LEAVE HIS RESIDENCE TO PERFORM DUTIES.
IN THE EVENT HE DID NOT RECEIVE PAY FOR THE WORK PERFORMED, HE MAY
SUBMIT A A CLAIM FOR OVERTIME COMPENSATION TO OUR TRANSPORTATION AND
CLAIMS DIVISION GIVING THE DATES AND HOURS WORKED AND OTHER PERTINENT
INFORMATION. IT IS NOTED THAT THE ADMINISTRATIVE OFFICE, BY MEMORANDUM
OF MAY 26, 1971, REQUESTED THE SAME INFORMATION SO THAT IT COULD BE SENT
TO THE GENERAL ACCOUNTING OFFICE FOR A DECISION REGARDING PAYMENT. THE
EMPLOYEE DID FURNISH A DUTY ROSTER SHOWING THE DAYS HE WAS ASSIGNED TO
STANDBY DUTY BUT DID NOT FURNISH ANY INFORMATION SHOWING THE DATES AND
HOURS WORKED WHEN HE WAS REQUIRED TO LEAVE HIS RESIDENCE TO PERFORM
DUTIES.
UPON RECONSIDERATION THE SETTLEMENT OF DECEMBER 13, 1973, BY THE
TRANSPORTATION AND CLAIMS DIVISION DISALLOWING MR. EASTER'S CALIM IS
SUSTAINED.
B-181002, AUG 20, 1974
HEADNOTES-UNAVAILABLE
WHILE CIVILIAN EMPLOYEE OF NLRB, TRANSFERRED FROM ST. LOUIS,
MISSOURI, TO HATO REY, PUERTO RICO, WAS ERRONEOUSLY ADVISED BY AGENCY
PERSONNEL THAT HE COULD USE A COMMERCIALLY RENTED VEHICLE WHILE SEEKING
A PERMANENT RESIDENCE, COMMUTING TO AND FROM HIS DUTY STATION, AS WELL
AS ON OFFICIAL BUSINESS, HIS CLAIM FOR REIMBURSEMENT OF COSTS INCURRED
IN SEEKING A RESIDENCE AND COMMUTING TO AND FROM HIS OFFICIAL DUTY
STATION MAY NOT BE ALLOWED SINCE FPMR 101-7 DOES NOT AUTHORIZE SUCH
EXPENSES AND THE GOVERNMENT IS NOT BOUND BY THE UNAUTHORIZED ACTS OR
REPRESENTATIONS OF ITS AGENTS.
MICHAEL S. MARAM - TRAVEL EXPENSES:
MR. JAMES A STEPIEN, AN AUTHORIZED CERTIFYING OFFICER OF THE NATIONAL
LABOR RELATIONS BORARD (NLRG), HAS REQUESTED OUR DECISION AS TO WHETHER
A TRAVEL VOURCHER ADMITTED BY MR. MICHAEL S MARAM, A CAREER ATTORNEY
WITH THE NLRB, MAY BE CERTIFIED FOR PAYMENT IN THE AMOUNT OF $800.03 FOR
REIMBUSEMENT OF THE AMOUNT OF MILEAGE AND USE CHARGES INCURRED WHILE
SEEKING A PERMANANT RESIDENCE AND COMMUTING TO AND FROM THE OFFICE UNDER
THE CIRCUMSTANCES STATED BELOW.
THE RECORD INDICATES THAT MR. MARAM WAS TRANSFERRED FROM ST. LOUIS,
MISSOURI, TO HATO REY, PURETO RICO, EFFECTIVE JUNE 22, 1973. UPON
ARRIVAL IN HATO REY, MR. MARAM, IN GOOD FAITH AND RELIEANCE ON
INSTRUCTIONS, USED AN AGENCY CREDIT CARD FOR THE RENTAL OF AN
AUTOMOBILE. MR. MARAM USED THE RENTAL CAR TO DO CASE WORK FOR THE
AGENCY, TO SEEK A PERMANENT RESIDENCE, AND TO COMMUTE TO AND FROM THE
OFFICE. IN THIS CONNECTION THE RECORD INDICATES THAT DUE TO AN ERROR BY
THE SHIPPER, MR. MARAM'S CAR AND HOUSEHOLD GOODS DID NOT ARRIVE IN
PUERTO RICO UNTIL AUGUST 29, 1973. MR. MARAM INQUIRED ABOUT THE MEANS
OF TRANSPORTATION TO SEEK A PERMANENT RESIDENCE, TO COMMUTE TO AND FROM
WORK, AND TO USE ON OFFICIAL BUSINESS FOR THE AGENCY AND WAS INFORMED,
THROUGH AN ADMINISTRATIVE ERROR, THAT HE COULD USE A COMMERCIALLY RENTED
AUTOMOBILE AND BILL THE AGENCY FOR THE TOTAL COST. THE AGENCY ALSO
STATES THAT LOCAL TRANSPORTATION WOULD HAVE BEEN INADEQUATE FOR MR.
MARAM'S NEEDS. HOWEVER, WHEN MR. MARAM PRESENTED TRAVEL VOUCHERS FOR
JULY AND AUGUST 1973 THE AGENCY TOOK EXCEPTION TO $820.03 OF THE ITEMS
CLAIMED ON THE GROUND THAT SUCH ITEMS COVERED TRANSPORTATON UTILIZED FOR
SEEKING A PERMANENT RESIDENCE AND COMMUTING TO AND FROM WORK. MR. MARAM
RECLAIMS $800.03 OF THE ITEMS DISALLOWED AND DOES NOT RECLAIM THE
DIFFERENCE OF $10.
WE ARE UNAWARE OF ANY PROVISION IN FPMR 101-7, FEDERAL TRAVEL
REGULATIONS, THAT PERMIT REIMBURSEMENT FOR LOCAL TRANSPORTATION INCURRED
AFTER REPORTING TO A NEW OFFICIAL STATION UPON TRANSFER FOR THE PURPOSE
OF SEEKING A PERMANENT RESIDENCE. AS TO MR. MARAM'S CLAIM FOR
REIMBURSEMENT OF EXPENSES INCURRED IN COMMUTING TO AND FROM HIS OFFICE,
IT IS A WELL ESTABLISHED RULE THAT AN EMPLOYEE MUST BEAR THE COST OF
TRANSPORTATION BETWEEN HIS RESIDENCE AND HIS PLACE OF DUTY AT HIS
PERMANENT OFFICIAL HEADQUARTERS. 19 COMP. GEN. 836 (1940); 27 COMP.
GEN. 1 (1947). ALTHOUGH AN ADMINISTRATIVE ERROR WAS MADE, THIS FACT
WOULD NOT ENLARGE MR. MARAM'S RIGHTS TO REIMBURSEMENT SINCE IT IS WELL
ESTABLISHED THAT ANYONE ENTERING INTO AN ARRANGEMENT WITH THE GOVERNMENT
TAKES THE RISK OF HAVING ACERTAINED THAT THE AGENT WITH WHOM HE DEALS
AND WHO PURPORTS TO ACT FOR THE GOVERNMENT STAYS WITHIN THE LIMITS OF
HIS AUTHORITY. B-176982, DECEMBER 14, 1972, AND COURT CASES CITED
THEREIN.
IN VIEW OF THE ABOVE THERE IS NO BASIS FOR THE ALLOWANCE OF MR.
MARAM'S CLAIM AND HIS TRAVEL VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.
B-181350, AUG 20, 1974
HEADNOTES-UNAVAILABLE
WHERE CONTRACTING OFFICER DETERMINED THAT LOW BIDDER WAS
NONRESPONSIBLE DUE TO UNSATISFACTORY RATINGS IN AREAS OF PRODUCTION
CAPABILITY, PERFORMANCE RECORD, AND ABILITY TO MEET REQUIRED SCHEDULE
AND WHERE SBA SUBSEQUENTLY DECLINED TO ISSUE COC, AND LOW BIDDER
CONTENDS THAT DETERMINATION IS BASED ON ERRONEOUS AND INADEQUATE
INFORMATION, NO RELIEF IS PROVIDED SINCE GAO HAS NO AUTHORITY TO REVIEW
SBA DETERMINATION OR TO REQUIRE SBA TO ISSUE COC OR TO REOPEN CASE WHEN
COC IS DENIED. FURTHERMORE, SBA'S DENIAL OF COC AFFIRMS CONTRACTING
OFFICER'S DETERMINATION OF NONRESPONSIBILITY. SEE COMP. GEN. DECISION
CITED.
UNITRON ENGINEERING COMPANY:
SOLICITATION NOS. DSA 120-74-R-2134 AND DSA 120-74-R-2176 WERE ISSUED
BY DEFENSE SUPPLY AGENCY (DSA) FOR THE PROCUREMENT OF SURGICAL
INSTRUMENT CABINETS. THE SUBJECT PROTEST CONCERNS DSA'S DETERMINATION
THAT UNITRON ENGINEERING COMPANY (UNITRON) DID NOT QUALIFY AS A
RESPONSIBLE PROSPECTIVE CONTRACTOR UNDER EITHER OF THE ABOVE
SOLICITATIONS.
UNITRON WAS LOW BIDDER UNDER SOLICITATION NO. DSA 120-74-R-2134. A
PRE-AWARD SURVEY CONDUCTED BY DEFENSE CONTRACT ADMINISTRATION SERVICES
REGION CHICAGO (DCASR) ON MARCH 13, 1974, RESULTED IN A RECOMMENDATION
OF AWARD TO UNITRON. HOWEVER, IN LIGHT OF RECENT CONTRACTUAL
DIFFICULTIES ENCOUNTERED BY UNITRON, DSA REQUESTED A RE-SURVEY BY DCASR
WHICH RESULTED IN A "NO AWARD" RECOMMENDATION. ON APRIL 8, 1974, THE
SURVEY TEAM REPORTED THEIR FINDINGS THAT UNITRON WAS UNSATISFACTORY IN
THE AREAS OF PRODUCTION CAPABILITY, PERFORMANCE RECORD, AND ABILITY TO
MEET THE REQUIRED SCHEDULE. THIS FINDING STEMMED PRIMARILY FROM THE
FACT THAT UNITRON'S PAST AND PRESENT PERFORMANCE HISTORY WAS
UNSATISFACTORY. DCASR FOUND NO POSITIVE EVIDENCE THAT UNITRON HAD TAKEN
OR INTENDED TO TAKE THE NECESSARY ACTION TO INCREASE ITS PRODUCTION
CAPACITY. ON THE BASIS OF DCASR'S RE-SURVEY REPORT, THE CONTRACTING
OFFICER DETERMINED THAT UNITRON WAS NONRESPONSIBLE.
BECAUSE OF UNITRON'S SMALL BUSINESS STATUS, THE MATTER WAS REFERRED
TO THE SMALL BUSINESS ADMINISTRATION (SBA) PURSUANT TO ARMED SERVICES
PROCUREMENT REGULATION (ASPR) 1-705.4 FOR REVIEW AND CONSIDERATION
WHETHER UNITRON SHOULD BE ISSUED A CERTIFICATE OF COMPETENCY (COC) FOR
THE PROCUREMENT. IN ITS LETTER OF MAY 14, 1974, DENYING THE UNITRON'S
APPLICATION FOR A COC, SBA STATED:
"WE HAVE CAREFULLY REVIEWED ALL INFORMATION AND DATA SUPPLIED AND
FIND NO SUFFICIENT REASON FOR DISAGREEING WITH THE DECISION OF THE
PROCURING AGENCY. AN AUDIT OF YOUR CURRENT IN-HOUSE GOVERNMENT
CONTRACTS INDICATES SERIOUS DELINQUENCIES. IN ADDITION, YOUR PAST
PERFORMANCE HISTORY ON GOVERNMENT CONTRACTS DOES NOT GIVE THE AGENCY
REASONABLE ASSURANCE THAT YOU CAN OVERCOME THE DIFFICULTIES IN TIME TO
PERFORM ON THIS CONTRACT IN ACCORDANCE WITH SCHEDULES."
ON MAY 22, 1974, UPON RECEIPT OF THIS INFORMATION, AWARD UNDER
SOLICITATION NO. DSA 120-74-R-2134 WAS MADE TO S. BLICKMAN, INC., THE
SECOND LOW BIDDER.
UNITRON HAS PROTESTED FOR SEVERAL REASONS. FIRST, IT CONTENDS THAT
THE PRE-AWARD RE-SURVEY WHICH RESULTED IN THE NONRESPONSIBILITY
DETERMINATION WAS BASED ON ERRONEOUS INFORMATION. SECOND, IT CONTENDS
THAT THE SBA DENIAL OF THE COC WAS FAULTY BECAUSE ALL PERTINENT
INFORMATION WAS NOT TAKEN INTO CONSIDERATION.
UNDER 15 U.S.C. 637 (B)(7), SBA HAS THE AUTHORITY TO ISSUE OR DENY A
COC. OUR OFFICE HAS NO AUTHORITY TO REVIEW SBA DETERMINATIONS OR TO
REQUIRE IT TO ISSUE A COC OR TO REOPEN A CASE WHEN A COC HAS BEEN
DENIED. 51 COMP. GEN. 448 (1972); B-179738, FEBRUARY 20, 1974.
THEREFORE, OUR OFFICE IS UNABLE TO PROVIDE ANY RELIEF FOR UNITRON
NOTWITHSTANDING THE CONTENTIONS MADE REGARDING SBA.
MOREOVER, THE DETERMINATION OF OFFEROR RESPONSIBILITY IS A MATTER FOR
ADMINISTRATIVE CONSIDERATION BY EACH CONTRACTING OFFICER AND IN THE CASE
OF SMALL BUSINESSES, IS FOR FURTHER CONSIDERATION BY SBA WITH RESPECT TO
A PROSPECTIVE CONTRACTOR'S CAPACITY WHEN THE CONTRACTING OFFICER MAKES A
NEGATIVE FINDING. IN THAT CONNECTION, THIS OFFICE HAS LONG RECOGNIZED
THAT WHEN AN OFFEROR'S APPLICATION FOR ISSUANCE OF A COC IS DENIED BY
SBA, THE CONTRACTING OFFICER'S DETERMINATIONS OF NONRESPONSIBILITY MUST
BE REGARDED AS HAVING BEEN AFFIRMED BY SBA. B-179738, FEBRUARY 20,
1974.
ACCORDINGLY, THE PROTEST UNDER SOLICITATION NO. DSA 120-74-R-2134 IS
DENIED.
UNITRON ALSO PROTESTED DSA'S DETERMINATION OF NONRESPONSIBILITY UNDER
SOLICITATION NO. DSA 120-74-R-2176. HOWEVER, WE HAVE BEEN INFORMED THAT
BASED ON EVENTS SUBSEQUENT TO SBA'S DENIAL OF A COC TO UNITRON UNDER
SOLICITATION NO. DSA 120-74-R-2134, SBA DID ISSUE A COC TO UNITRON UNDER
SOLICITATION NO. DSA 120-74-R-2176. SPECIFICALLY, WE HAVE BEEN ADVISED
THAT SEVERAL OF UNITRON'S CONRACTS WERE TERMINATED, THEREBY RELEASING
ITS PRODUCTION FACILITIES FOR OTHER WORK. FURTHERMORE, WE HAVE BEEN
ADVISED THAT UNITRON HIRED A NEW PRODUCTION MANAGER.
AS A RESULT OF SBA'S ISSUANCE OF A COC, DSA AWARDED A CONTRACT TO
UNITRON ON JUNE 28, 1974. THEREFORE, WE WILL TAKE NO FURTHER ACTION
REGARDING UNITRON'S PROTEST UNDER SOLICITATION NO. DSA 120-74-R-2176.
B-181945, AUG 20, 1974
HEADNOTES-UNAVAILABLE
PROTEST, 12 WORKING DAYS AFTER NOTICE OF AWARD WAS RECEIVED, THAT
AWARD FOR SINGLE ITEM WAS MADE AT UNCONSCIONABLY HIGH PRICE AND THAT
PROTESTER'S LOWER PRICE SHOULD HAVE BEEN ACCEPTED NOTWITHSTANDING RFP
CLAUSE REQUIRING THAT AWARD BE MADE ON THE BASIS OF LOWEST BID FOR TWO
ITEMS, IS UNTIMELY SINCE SECTION 20.2(A) OF INTERIM BID PROTEST
PROCEDURES AND STANDARDS REQUIRES PROTEST TO BE FILED NOT LATER THAN
FIVE WORKING DAYS AFTER BASIS FOR PROTEST WAS KNOWN OR SHOULD HAVE BEEN
KNOWN.
MEYER JACOBY & SON, INCORPORATED:
REQUEST FOR PROPOSALS (RFP) NO. DABT27-74-R-0049, ISSUED BY THE ARMY
TRAINING CENTER, FORT POLK, LOUISIANA, SOLICITED PROPOSALS FOR, AMONG
OTHER THINGS, HATS AND WIGS.
ON JUNE 27, 1974, AWARD WAS MADE AT A PRICE OF $50 PER WIG. AFTER
AWARD, MEYER JACOBY & SON, INCORPORATED (JACOBY), WAS NOTIFIED THAT ITS
PROPOSAL FOR WIGS AT $18.70 PER UNIT COULD NOT BE ACCEPTED SINCE THE
SOLICITATION REQUIRED THAT ITEM SIX (HATS) AND ITEM EIGHT (WIGS) BE
AWARDED TO THE SAME CONTRACTOR. AFTER RECEIPT OF THE NOTICE, JACOBY
SENT A PROTEST BY LETTER DATED JULY 26, 1974, WHICH WAS RECEIVED IN OUR
OFFICE ON AUGUST 1, 1974. JACOBY CONTENDS THAT THE AWARD SHOULD NOT
HAVE BEEN MADE BECAUSE THE QUOTED PRICE WAS UNCONSCIONABLY HIGH AND THAT
A LOWER UNIT PRICE COULD BE OBTAINED BY ACCEPTING JACOBY'S OFFER FOR
WIGS.
THE CONTENTION THAT THE CONTRACT PRICE FOR WIGS IS UNCONSCIONABLY
HIGH IS UNTIMELY AND NOT FOR CONSIDERATION. IN THIS REGARD, SECTION
20.2(A) OF THE INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 CFR
20.2(A)) REQUIRES THE PROTEST TO BE FILED NO LATER THAN FIVE WORKING
DAYS AFTER THE BASIS FOR THE PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN.
ALTHOUGH JACOBY HAD NOTICE ON JULY 16, 1974, OF THE AWARD PRICE, THE
PROTEST AGAINST AWARD WAS NOT MADE KNOWN UNTIL THE LETTER OF JULY 26,
1974, WAS RECEIVED HERE ON AUGUST 1, 1974, WHICH WAS 12 WORKING DAYS
AFTER THE NOTICE OF AWARD WAS RECEIVED BY JACOBY.
ACCORDINGLY, THE PROTEST MUST BE DISMISSED AS UNTIMELY.
B-181967, AUG 20, 1974
HEADNOTES-UNAVAILABLE
1. IN A SALE BY THE GOVERNMENT OF SURPLUS SCRAP METAL, DIFFERENCE
BETWEEN SUCCESSFUL BID OF $.115 PER POUND, CURRENT MARKET APPRAISAL OF
$.09 PER POUND, AND SUCCESSIVE BIDS RANGING FROM $.041 PER POUND TO
$$.025 PER POUND PLACED CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF A
POSSIBLE ERROR IN THE BID.
2. WHERE A CONTRACTING OFFICER IS PLACED ON CONSTRUCTIVE NOTICE OF
ERROR IN BID PRIOR TO AWARD, CONTRACT MAY BE CANCELED WITHOUT LIABILITY
TO BIDDER IN THE ABSENCE OF BID VERIFICATION PRIOR TO AWARD.
ACME REFINDING-SMELTING COMPANY:
BY LETTER DSAH-G DATED AUGUST 1, 1974, THE ACTING ASSISTANT GENERAL
COUNSEL, HEADQUARTERS, DEFENSE SUPPLY AGENCY (DSA), IN CONCURRENCE WITH
THE DEFENSE PROPERTY DISPOSAL SERVICE (DPDS) RECOMMENDED THE RECISSION
OF SALES CONTRACT NO. 27-5004-80, AWARDED TO THE ACME REFINING-SMELTING
COMPANY FOR COPPER-BEARING SCRAP METAL UNDER SALES INVITATION FOR BIDS
27-5004. BECAUSE BIDS ON SCRAP METAL DO NOT VARY GREATLY, DSA AND DPDS
CONCLUDE THAT THE SUBSTANTIAL DISPARITY IN THIS CASE AMONG THE
SUCCESSFUL BID OF $.115 PER POUND, THE NEXT HIGH BID OF $.041 PER POUND
AND THE NARROW RANGE OF THE NEXT FIVE BIDS SHOULD HAVE PLACED THE
CONTRACTING OFFICER ON CONSTRUCTIVE KNOWLEDGE OF A POSSIBLE MISTAKE.
THE THIRD THROUGH SIXTH BIDS RANGED FROM $.035 PER POUND TO $.025 PER
POUND.
AS TO WHEN A CONTRACTING OFFICER SHOULD DETECT ERRORS IN BIDS, WE
STATED IN B-179956, FEBRUARY 21, 1971, THAT "THE TEST IS ONE OF
REASONABLENESS; WHETHER UNDER THE FACTS *** THERE WERE ANY FACTORS
WHICH REASONABLY COULD HAVE RAISED THE PRESUMPTION OF ERROR IN THE MIND
OF THE CONTRACTING OFFICER."
AS NOTED ABOVE, BIDS ON A SALE OF SCRAP METAL GENERALLY DO NOT VARY
AS MUCH AS BIDS ON USABLE PROPERTY. B-180128, JANUARY 29, 1974. FOR
THIS REASON, WE BELIEVE THAT THE PRICE DISPARTIES NOTED IN THE
PRECEEDING PARAGRAPH TOGETHER WITH THE FACT THAT ACME'S BID PRICE WAS
APPROXIMATELY 28 PERCENT ABOVE THE CURRENT MARKET APPRAISAL OF $.09 PER
POUND, SHOULD HAVE PLACED THE CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE
OF THE ERROR. IN THESE CIRCUMSTANCES, WE BELIEVE THE CONTRACTING
OFFICER SHOULD HAVE REQUESTED ACME TO VERIFY ITS BID PRIOR TO AWARD. 49
COMP. GEN. 199 (1969).
ACCORDINGLY, CONTRACT NO. 27-5004-80 MAY BE CANCELED WITHOUT
LIABILITY TO ACME AS ADMINISTRATIVELY RECOMMENDED.
B-179640, AUG 19, 1974
HEADNOTES-UNAVAILABLE
PERSON EMPLOYED AS CONSULTANT BECOMES TEMPORARY RATHER THAN
INTERMITTENT EMPLOYEE UPON COMPLETION OF 130 DAYS OF WORK IN A SERVICE
YEAR AND THEREUPON CEASES TO BE ENTITLED TO PERDIEM ALLOWANCE OR
ALLOWANCE FOR TRAVEL BETWEEN HIS HOME AND PLACE OF PERFORMANCE OF
CONSULTING DUTIES EVEN THOUGH EMPLOYING AGENCY MAY HAVE INFORMED
EMPLOYEE OTHERWISE, SINCE GOVERNMENT IS NOT RESPONSIBLE FOR UNAUTHORIZED
ACTS OF ITS EMPLOYEES.
CHARLES C. VARGA, JR. - TRAVEL AND PER DIEM ALLOWANCES FOR
CONSULTANT:
THIS ACTION IS IN RESPONSE TO A REQUEST FOR A REVIEW OF THE
DISALLOWANCE BY OUR TRANSPORTATION AND CLAIMS DIVISION OF THE CLAIM OF
MR. CHARLES C. VARGA, JR., A FORMER CONSULTANT WITH THE ENVIRONMENTAL
PROTECTION AGENCY, FOR TRAVEL EXPENSES FOR THE PERIOD MAY 23, 1972
THROUGH JUNE 29, 1973.
MR. VARGA WAS EMPLOYED BY THE ENVIRONMENTAL PROTECTION AGENCY AS A
CONSULTANT ON VARIOUS PROGRAMS FROM JANUARY 25, 1971 TO JUNE 29, 1973,
UNDER VARIOUS APPOINTMENTS. FROM JANUARY 25, 1971 TO OCTOBER 24, 1971,
HIS CONSULTING DUTIES WERE IN WASHINGTON, D.C.; FROM OCTOBER 25, 1971 TO
MAY 22, 1972, THEY WERE IN NEW YORK; AND, FROM MAY 23, 1972 TO JUNE 29,
1973, THEY WERE IN THE WASHINGTON AREA. THROUGHOUT THIS TIME, MR. VARGA
MAINTAINED HIS HOME IN THE NEW JERSEY SUBURBS OF NEW YORK CITY. ALL OF
THE ABOVE APPOINTMENTS WERE MADE UNDER 5 U.S.C. 3109 AND MR. VARGA'S
EMPLOYMENT WAS ON A FULL TIME BASIS.
DURING THE PERIOD IN QUESTION, AS WELL AS THE PERIOD IN 1971 WHEN HIS
CONSULTING DUTIES WERE PERFORMED IN THE WASHINGTON AREA, MR. VARGA
GENERALLY FLEW TO WASHINGTON AT THE START OF THE WEEK, STAYED IN HOTELS
IN WASHINGTON, AND FLEW HOME ON WEEKENDS. HE GENERALLY TRAVELED TO AND
FROM THE AIRPORTS, HOTELS, AND CONSULTING LOCATIONS BY TAXICAB. FOR THE
PERIOD JANUARY 25, 1971, THROUGH MAY 22, 1972, MR. VARGA RECEIVED
EXPENSES OF TRAVEL INCLUDING A PER DIEM IN LIEU OF SUBSISTENCE AND
TRANSPORTATION BETWEEN HIS HOME AND DUTY STATION. WHILE HIS SERVICES
WERE ORIGINALLY INTENDED TO BE UTILIZED ON AN INTERMITTENT BASIS IT IS
EVIDENT THAT WHEN HIS WORKING DAYS TOTALLED 130 DAYS, HE NO LONGER WAS
TO BE REGARDED AS AN INTERMITTENT CONSULTANT SO AS TO BE ENTITLED TO
EXPENSES IN TRAVELING BETWEEN HIS HOME AND DUTY STATION AND EXPENSES
WHILE AT HIS DUTY STATION. IN JULY OF 1973, THE AGENCY DISALLOWED HIS
TRAVEL VOUCHERS FOR THE PERIOD MAY 23, 1972, THROUGH JUNE 29, 1973, AND
SOUGHT THE RETURN OF AMOUNTS ADVANCED FOR EXPENSES IN EXCESS OF 130
DAYS.
THE SETTLEMENT CERTIFICATE DISALLOWING MR. VARGA'S CLAIM, ISSUED ON
NOVEMBER 19, 1973, BY OUR TRANSPORTATION AND CLAIMS DIVISION, EXPLAINED
THAT CONSULTANTS MAY BE HIRED ON A TEMPORARY OR ON AN INTERMITTENT BASIS
UNDER 5 U.S.C. 3109(B). TRAVEL AND PER DIEM EXPENSES ARE AUTHORIZED FOR
INTERMITTENTLY EMPLOYED CONSULTANTS UNDER 5 U.S.C. 5703(B).
INTERMITTENT EMPLOYMENT IS DEFINED AS LESS THAN HALF OF FULL-TIME
EMPLOYMENT, OR LESS THAN 130 DAYS IN A SERVICE YEAR. FEDERAL PERSONNEL
MANUAL, CHAPTER 304, SUBCHAPTER 1, PARAGRAPH 1-2A(5). UPON EXCEEDING
THE 130 DAYS, IT BECOMES TEMPORARY EMPLOYMENT.
MR. VARGA CONTENDS THAT HIS TRAVEL WAS IN ACCORDANCE WITH AGREEMENTS
WITH HIS AGENCY, THAT TRAVEL ORDERS, REQUESTS FOR MONEY ADVANCES HAD
BEEN ISSUED REGULARLY, AND THAT HE HAD ACTED IN GOOD FAITH. WHEN A
GOVERNMENT EMPLOYEE ACTS OUTSIDE THE SCOPE OF THE AUTHORITY ACTUALLY
HELD BY HIM, THE UNITED STATES IS NOT ESTOPPED TO DENY HIS UNAUTHORIZED
OR MISLEADING REPRESENTATIONS, COMMITMENTS, OR ACTS, BECAUSE THOSE WHO
DEAL WITH A GOVERNMENT AGENT, OFFICER, OR EMPLOYEE ARE DEEMED TO HAVE
NOTICE OF THE LIMITATIONS ON HIS AUTHORITY, AND ALSO BECAUSE EVEN THOUGH
A PRIVATE INDIVIDUAL MIGHT BE ESTOPPED, THE PUBLIC SHOULD NOT SUFFER FOR
THE ACT OR REPRESENTATION OF A SINGLE GOVERNMENT AGENT. UTAH POWER &
LIGHT CO. V. UNITED STATES, 243 U.S. 389 (1917); BIANCO V. UNITED
STATES, 171 CT. CL. 719 (1965); BORNSTEIN V. UNITED STATES, 170 CT.
CL. 576, 345 F.2D 558 (1965); POTTER V. UNITED STATES, 167 CT. CL. 28
(1964), CERT. DENIED, 382 U.S. 817 (1965); VOGT BROS. MFG. CO. V.
UNITED STATES, 160 CT. CL. 687 (1963); BYRNE ORGANIZATION, INC. V.
UNITED STATES, 152 CT. CL. 578, 287 F.2D 582 (1961); NATIONAL
ELECTRONICS LAB., INC. V. UNITED STATES, 148 CT. CL. 308 (1960). THE
GOVERNMENT IS NOT ESTOPPED FROM REPUDIATING ADVICE GIVEN BY ONE OF ITS
OFFICIALS IF THAT ADVICE IS ERRONEOUS. VON KALINOWSKI V. UNITED STATES,
151 CT. CL. 172 (1960), CERT. DENIED, 368 U.S. 829 (1971). WHERE A
GOVERNMENT OFFICIAL APPROVES AND PROMISES REIMBURSEMENT BEYOND THAT
ALLOWED BY APPLICABLE LAW, ANY PAYMENTS MADE UNDER SUCH UNAUTHORIZED
ACTIONS ARE RECOVERABLE BY THE GOVERNMENT.
W. PENN HOROLOGICAL INST. V. UNITED STATES, 146 CT. CL. 540 (1959).
MR. VARGA HAS SUBMITTED COPIES OF SEVERAL LETTERS WHICH HE FEELS ARE
PERTINENT IN RECONSIDERING THE DISALLOWANCE OF HIS CLAIM. THESE LETTERS
ARE ON FILE IN OUR OFFICE AND WERE FULLY CONSIDERED BY OUR
TRANSPORTATION AND CLAIMS DIVISION WHEN THE SETTLEMENT CERTIFICATE OF
NOVEMBER 19, 1973, WAS ISSUED DISALLOWING HIS CLAIM.
MR. VARGA STATES THAT IN RECONSIDERING HIS CLAIM THE COMPTROLLER
GENERAL HAS THE LATITUDE, FLEXIBILITY AND THE AUTHORITY TO EXAMINE MORE
BROADLY THE PARTICULAR CASE POSED AND IN TAKING A SECOND LOOK, GO BEYOND
A "CHAPTER-AND-VERSE READING OF THE UNITED STATES CODE," AND IN SO
DOING, RENDER A MORE EQUITABLE DECISION. IN DECIDING CLAIMS BEFORE OUR
OFFICE, THE COMPTROLLER GENERAL MUST ABIDE BY CLEAR AND UNAMBIGUOUS
PROVISIONS OF THE STATUTES AND REGULATIONS ISSUED PURSUANT THERETO WHICH
HAVE THE FORCE AND EFFECT OF LAW, AND THEY MAY NOT BE WAIVED OR
DISREGARDED BY OUR OFFICE.
SINCE MR. VARGA WAS NOT ENTITLED TO REIMBURSEMENT OF TRAVEL EXPENSES
BEYOND 130 DAYS, UNDER THE CIRCUMSTANCES, AND HE HAS NOT FURNISHED ANY
NEW EVIDENCE THAT WOULD CAUSE US TO CHANGE OUR PRIOR DETERMINATION, WE
MUST SUSTAIN THE ACTION TAKEN IN OUR TRANSPORTATON AND CLAIMS DIVISION
SETTLEMENT OF NOVEMBER 19, 1973.
B-180566, AUG 19, 1974
HEADNOTES-UNAVAILABLE
REQUEST FOR RELIEF FROM ASSESSMENT OF LIQUIDATED DAMAGES IS DENIED ON
BASIS OF RECOMMENDATION AGAINST REMISSION BY CONTRACTING AGENCY
CONCERNED, SINCE COMPTROLLER GENERAL IS AUTHORIZED UNDER 41 U.S.C.
256(A) TO REMIT LIQUIDATED DAMAGES ONLY UPON FAVORABLE RECOMMENDATION BY
HEAD OF CONTRACTING AGENCY.
FIRST NATIONAL BANK OF THE BLACK HILLS:
BY LETTER DATED JANUARY 31, 1974, FIRST NATIONAL BANK OF THE BLACK
HILLS REQUESTED RELIEF ON BEHALF OF RICHARD JANIS FROM AN ASSESSMENT OF
LIQUIDATED DAMAGES, IN THE AMOUNT OF $14,250.00, BY THE PUBLIC HEALTH
SERVICES, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) UNDER
CONTRACT NO. HSM80-72-607.
A REPORT DATED AUGUST 2, 1974, FROM THE DEPUTY ASSISTANT SECRETARY OF
HEW RECOMMENDED AGAINST REMISSION OF THE LIQUIDATED DAMAGES ASSESSED
UNDER THE SUBJECT CONTRACT. UNDER 41 U.S.C. 256(A) OUR OFFICE IS
AUTHORIZED TO REMIT LIQUIDATED DAMAGES IN WHOLE OR IN PART UPON THE
RECOMMENDATION OF THE HEAD OF THE CONTRACTING AGENCY. IN REGARD TO THE
INSTANT REQUEST FOR RELIEF, IT HAS CONSISTENTLY BEEN OUR POSITION THAT
THE CITED STATUTE CLEARLY CONTEMPLATES THAT A FAVORABLE RECOMMENDATION
BY THE HEAD OF THE AGENCY CONCERNED IS A PREREQUISITE TO ANY REMISSION
ACTION BY OUR OFFICE. SEE B-170911, JUNE 1. 1972; B-175180, MAY 11,
1972.
ACCORDINGLY, WE MUST, PURSUANT TO 41 U.S.C. 256(A), DECLINE TO REMIT
ALL OR ANY PART OF THE LIQUIDATED DAMAGES ASSESSED.
B-180625, AUG 19, 1974
HEADNOTES-UNAVAILABLE
CARRIER'S CLAIM FOR FREIGHT AND DETENTION CHARGES DISALLOWED WHERE
VALIDITY OF CLAIM IS IN DOUBT AND WHERE CLAIM DOES NOT MEET THE FILING
REQUIREMENTS OF THE U.S. GENERAL ACCOUNTING OFFICE.
SOUTHERN RAILWAY SYSTEM:
THE SOUTHERN RAILWAY SYSTEM PRESENTS A CLAIM FOR $1,669.92 FOR
FREIGHT AND DETENTION CHARGES ARISING OUT OF A SHIPMENT OF FROZEN
PEACHES SHIPPED BY G.W. HUME COMPANY, TURLOCK, CALIFORNIA, TO FINLEY
COLD STORAGE CORP., BIRMINGHAM, ALABAMA. THE SHIPMENT MOVED IN
SEPTEMBER 1971 AND THE BENEFICIAL CONSIGNEE WAS THE DEFENSE PERSONNEL
SUPPORT CENTER, BIRMINGHAM, ALABAMA.
THE SHIPMENT WAS TENDERED TO THE ORIGIN CARRIER BY G.W. HUME COMPANY
IN ACCORDANCE WITH A CONTRACT BETWEEN HUME AND THE BARNES CO. BARNES WAS
UNDER CONTRACT TO THE UNITED STATES TO DELIVER THE SHIPMENT F.O.B.
DESTINATION. THE SHIPMENT WAS DELIVERED TO ITS DESTINATION IN SEPTEMBER
1971 AND THE BARNES CO. WAS PAID BY THE UNITED STATES ON OCTOBER 6,
1971.
THE SHIPMENT MOVED UNDER A COLLECT COMMERCIAL BILL OF LADING. NO
RECORD OF THE ORIGINAL COMMERCIAL BILL OF LADING EXISTS AND THERE IS NO
EVIDENCE THAT THE WAREHOUSE CONSIGNEE EVER RECEIVED THE COMMERCIAL BILL
OF LADING, BUT THE CONTENTS OF THE BILL OF LADING CAN BE INFERRED FROM
COPIES OF THE SHIPPING ORDER, THE FREIGHT BILL AND WAYBILL CORRECTION
NOTICE DATED DECEMBER 1, 1971, WHICH IS MARKED "COLLECT TO PREPAID -
GOVERNMENT SHIPMENT MUST MOVE PREPAID OR ON GOVERNMENT BILL OF LADING."
GOVERNMENT SHIPMENTS NORMALLY MOVE COLLECT ON A GOVERNMENT BILL OF
LADING. A COLLECT SHIPMENT MOVING ON A COMMERCIAL BILL OF LADING WHICH
IS NOT TO BE CONVERTED TO A GOVERNMENT BILL OF LADING IS OF DOUBTFUL
STATUS AND, WITHOUT THE ORIGINAL COMMERICAL BILL OF LADING AND ALL OTHER
PERTINENT INFORMATION REGARDING THE DELIVERY, PAYMENT CANNOT BE
AUTHORIZED.
FURTHERMORE, THE CLAIM DOES NOT MEET THE STANDARDS REQUIRED BY THIS
OFFICE FOR THE PRESENTATION OF CLAIMS. SEE SECTION 6020 OF TITLE 5 OF
THE GENERAL ACCOUNTING OFFICE MANUAL WHICH IS CODIFIED AT 4 C.F.R. 54
(1974).
THE ACCOUNTING OFFICERS OF THE GOVERNMENT MUST DISALLOW ANY CLAIM
WHOSE VALIDITY IS IN DOUBT. LONGWILL V. UNITED STATES, 17 CT. CL. 288
(1881); CHARLES V. UNITED STATES, 19 CT. CL. 316 (1884). THE CLAIM IS
THEREFORE DISALLOWED.
B-180698, AUG 19, 1974
HEADNOTES-UNAVAILABLE
DOCUMENTS EFFECTING HIS APPOINTMENT AS AN EXPERT UNDER 5 U.S.C. 3109
INDICATED EMPLOYEE WAS ENTITLED TO TRAVEL AND PER DIEM EXPENSES WHEN
AWAY FROM HOME OR PLACE OF BUSINESS IN ACCORDANCE WITH 5 U.S.C. 5703
APPLICABLE TO INTERMITTENTLY-EMPLOYED EXPERTS AND CONSULTANTS. HOWEVER,
WHERE EXPERT WORKED DAILY ON A REGULAR TOUR OF DUTY FROM FEBRUARY 26 TO
JUNE 30, 1973, AS CONTEMPLATED BY THE TERMS OF HIS APPOINTMENT, HE IN
FACT WAS EMPLOYED ON A TEMPORARY BASIS AND IS ENTITLED ONLY TO THOSE
TRAVEL AND PER DIEM EXPENSES PAYABLE TO A REGULAR EMPLOYEE.
JOHN P. QUILLIN - TRAVEL AND PER DIEM EXPENSES AS AN EXPERT:
BY HIS LETTER DATED DECEMBER 10, 1973, MR. JOHN P. QUILLIN HAS
APPEALED THE DENIAL BY OUR TRANSPORTATION AND CLAIMS DIVISION'S
SETTLEMENT CERTIFICATE DATED OCTOBER 31, 1973, OF HIS CLAIM FOR PER DIEM
AND TRAVEL EXPENSES AS AN EXPERT EMPLOYED BY THE OFFICE OF ECONOMIC
OPPORTUNITY, CHICAGO, ILLINOIS. IN ADDRESSING THE ISSUE OF MR.
QUILLIN'S ENTITLEMENT TO TRANSPORTATION AND PER DIEM EXPENSES FOR TRAVEL
BETWEEN HIS RESIDENCE IN PRINCETON, ILLINOIS, AND HIS PLACE OF WORK AS
AN EXPERT IN CHICAGO, ILLINOIS, OUR TRANSPORTATION AND CLAIMS DIVISION
FOUND:
"SECTION 5703(B) OF TITLE 5 OF THE UNITED STATES CODE REQUIRES THAT
TO ESTABLISH ENTITLEMENT TO TRAVEL EXPENSES AND PER DIEM ALLOWANCES AT
THE PLACE OF EMPLOYMENT THE INDIVIDUAL MUST BE '*** EMPLOYED
INTERMITTENTLY IN THE GOVERNMENT SERVICE AS AN EXPERT OR CONSULTANT AND
PAID ON A DAILY WHEN-ACTUALLY-EMPLOYED BASIS ***.' THE TERM 'EMPLOYED
INTERMITTENTLY,' AS USED IN THIS SECTION, HAS BEEN CONSTRUED BY
DECISIONS OF OUR OFFICE TO REFER TO OCCASIONAL OR IRREGULAR EMPLOYMENT,
AS DISTINGUISHED FROM CONTINUOUS EMPLOYMENT OF THE TYPE YOU WERE ENGAGED
IN, AND IS LIMITED TO WORK ON PROGRAMS, PROJECTS, OR PROBLEMS REQUIRING
INTERMITTENT SERVICES. HOWEVER, WE HAVE ALSO RECOGNIZED IN CERTAIN
CASES THAT EVEN THOUGH AN EXPERT OF CONSULTANT MAY WORK FULL-TIME HE MAY
STILL BE REGARDED AS INTERMITTENT (BUT IN NO CASE IN EXCESS OF 130
WORKING DAYS) IF THE RECORD SHOWS THAT INTERMITTENT EMPLOYMENT WAS
ACTUALLY INTENDED AND BECAUSE OF AN INABILITY TO REASONABLY ANTICIPATE
THE NEED FOR THE SERVICES ON A FULL-TIME BASIS. YOU AND YOUR AGENCY
AGREE THAT YOU WERE EMPLOYED ON A FULL-TIME RATHER THAN AN INTERMITTENT
BASIS.
"THEREFORE, SINCE YOUR EMPLOYMENT WAS NOT INTERMITTENT, YOU ARE NOT
ENTITLED TO PER DIEM OR TRAVEL EXPENSES UNDER 5 U.S.C. 5703(B) WHILE AT
YOUR OFFICIAL DUTY STATION OF CHICAGO."
MR. QUILLIN TAKES EXCEPTION TO THIS DETERMINATION BASED PRINCIPALLY
ON THE FACT THAT HE WAS NOT "PERMANENTLY" EMPLOYED. IN THIS REGARD HE
POINTS TO THE FACT THAT THE STANDARD FORM 50, EFFECTING HIS SEPARATION
OF JUNE 30, 1973, INDICATES THE TERMINATION OF AN INTERMITTENT EXPERT
APPOINTMENT, THAT BLOCK #27, DESIGNATED "APPROPRIATION" OF ALL STANDARD
FORMS 50 ISSUED PERTAINING TO HIS EMPLOYMENT INDICATE HIS POSITION WAS A
"TEMPORARY POSITION," AND FURTHER THAT HIS INELIGIBILITY FOR HOLIDAY PAY
AND LEAVE WAS DUE TO THE FACT THAT HE WAS NOT A FULL-TIME EMPLOYEE. HE
ADDS THAT NEITHER HE NOR HIS EMPLOYER ANTICIPATED THAT HIS SERVICES
WOULD BE REQUIRED ON A FULL-TIME BASIS AND HE EXPLAINS THAT THE
STATEMENT CONTAINED IN HIS LETTER OF JULY 4, 1973, ADDRESSED TO OUR
TRANSPORTATION AND CLAIMS DIVISION, TO THE EFFECT THAT HE WORKED ON A
FULL-TIME BASIS REFERRED NOT TO ANY PERMANENT STATUS HE MIGHT HAVE HAD
AS AN EMPLOYEE BUT TO THE 100-DAY APPOINTMENT.
WE CONCUR WITH MR. QUILLIN'S VIEW THAT HE WAS NOT EMPLOYED ON WHAT
ONE MIGHT ACCURATELY TERM A "PERMANENT" BASIS. INSOFAR AS OUR
TRANSPORTATION AND CLAIMS DIVISION'S USE OF THE PHRASE "FULL-TIME BASIS"
SUGGESTS THAT MR. QUILLIN WAS PERMANENTLY EMPLOYED, THAT DESIGNATION IS
INACCURATE. THE DESIGNATION OF MR. QUILLIN'S EMPLOYMENT AS "FULL-TIME"
SHOULD MORE PROPERLY HAVE BEEN "TEMPORARY," AS THE AUTHORITY OF 5 U.S.C.
3109 TO EMPLOY INDIVIDUALS AS EXPERTS OR CONSULTANTS EXTENDS ONLY TO
THEIR EMPLOYMENT ON A TEMPORARY OR INTERMITTENT BASIS. SUBSECTION
3109(B) PROVIDES FOR EMPLOYMENT OF EXPERTS AND CONSULTANTS AS FOLLOWS:
"(B) WHEN AUTHORIZED BY AN APPROPRIATION OR OTHER STATUTE, THE HEAD
OF AN AGENCY MAY PROCURE BY CONTRACT THE TEMPORARY (NOT IN EXCESS OF 1
YEAR) OR INTERMITTENT SERVICES OF EXPERTS OR CONSULTANTS OR AN
ORGANIZATION THEREOF."
PAYMENT OF TRANSPORTATION AND PER DIEM EXPENSES OF AN EXPERT OR
CONSULTANT SERVING UNDER AN INTERMITTENT APPOINTMENT IS AUTHORIZED BY 5
U.S.C. 5703 AS FOLLOWS:
PAYMENT OF TRANSPORTATION AND PER DIEM EXPENSES OF AN EXPERT OR
CONSULTANT SERVING UNDER AN INTERMITTENT APPOINTMENT IS AUTHORIZED BY 5
U.S.C. 5703 AS FOLLOWS:
"(B) AN INDIVIDUAL EMPLOYED INTERMITTENTLY IN THE GOVERNMENT SERVICE
AS AN EXPERT OR CONSULTANT AND PAID ON A DAILY WHEN-ACTUALLY-EMPLOYED
BASIS MAY BE ALLOWED TRAVEL EXPENSES UNDER THIS SUBCHAPTER WHILE AWAY
FROM HIS HOME OR REGULAR PLACE OF BUSINESS, INCLUDING A PER DIEM
ALLOWANCE UNDER THIS SUBCHAPTER WHILE AT HIS PLACE OF EMPLOYMENT."
THERE IS NO SPECIAL AUTHORITY FOR THE PAYMENT OF TRANSPORTATION AND
PER DIEM EXPENSES OF AN EXPERT OR CONSULTANT WHO IS EMPLOYED ON A
TEMPORARY RATHER THAN AN INTERMITTENT BASIS. IN REGARD TO THOSE
ENTITLEMENTS A TEMPORARILY-EMPLOYED EXPERT IS IN THE SAME POSITION AS A
REGULAR GOVERNMENT EMPLOYEE WHO IS ENTITLED TO PER DIEM EXPENSES WHEN
TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIS DUTY STATION IN ACCORDANCE
WITH 5 U.S.C. 5702 AND WHO IS ENTITLED TO TRANSPORTATION EXPENSES UNDER
5 U.S.C. 5706, 27 COMP. GEN. 695 (1946). A TEMPORARILY-EMPLOYED EXPERT
OR CONSULTANT, JUST AS A PERMANENTLY-EMPLOYED INDIVIDUAL, IS SUBJECT TO
THE WELL SETTLED RULE THAT AN EMPLOYEE MUST BEAR THE COST OF
TRANSPORTATION FROM HIS PLACE OF RESIDENCE TO HIS PLACE OF DUTY AT HIS
OFFICIAL STATION, 36 COMP. GEN. 450 (1956), 32 COMP. GEN. 235 (1952),
AND B-180181, FEBRUARY 22, 1974. THUS, MR. QUILLIN'S ENTITLEMENT TO
TRANSPORTATION AND PER DIEM EXPENSES IN CONNECTION WITH HIS TRAVEL
BETWEEN HIS RESIDENCE TO HIS PLACE OF WORK AS AN EXPERT TURNS UPON
WHETHER HE SERVED ON AN INTERMITTENT OR TEMPORARY BASIS.
A REVIEW OF THE RECORD INDICATES THAT MR. QUILLIN WAS APPOINTED TO
THE POSITION IN QUESTION EFFECTIVE FEBRUARY 26, 1973. THE ORIGINIAL
STANDARD FORM 50, NOTIFICATION OF PERSONNEL ACTION, PROVIDED AS TO THE
TERMS OF THAT APPOINTMENT AS FOLLOWS:
"EMPLOYEE WILL WORK 100 DAYS UNDER THIS APPOINTMENT BEGINNING
02-26-73. ENTITLED TO BE PAID FOR HOLIDAYS FALLING WITHIN REGULAR TOUR
OF DUTY. ELIGIBLE FOR LEAVE BENEFITS, PAYMENT OF TRAVEL EXPENSES AND
PER DIEM IN LIEU OF SUBSISTENCE WHEN AWAY FROM HOME OR REGULAR PLACE OF
BUSINESS. INELIGIBLE FOR OVERTIME AND OTHER PREMIUM COMPENSATION.
EMPLOYEE MUST NOT WORK MORE THAN 100 DAYS IN THIS FISCAL YEAR."
AS MR. QUILLIN HAS STATED, THAT FORM ALSO INDICATED THAT MR.
QUILLIN'S WAS A "TEMPORARY POSITION."
THE ORIGINAL STANDARD FORM 50 WAS LATER CORRECTED TO INDICATE THAT
MR. QUILLIN WAS INELIGIBLE FOR HOLIDAY OR LEAVE BENEFITS, AS FOLLOWS:
"EMPLOYEE WILL WORK 100 DAYS UNDER THIS APPOINTMENT BEGINNING
02-26-73. INELIGIBLE FOR LEAVE BENEFITS, HOLIDAY PAY, OVERTIME AND
OTHER PREMIUM COMPENSATIONS. ELIGIBLE FOR PAYMENT OF TRAVEL EXPENSES
AND PER DIEM IN LIEU OF SUBSISTENCE WHEN AWAY FROM HOME OR REGULAR PLACE
OF BUSINESS. EMPLOYEE MUST NOT WORK MORE THAN 100 DAYS IN THIS FISCAL
YEAR. ***"
THE ABOVE-DISCUSSED CORRECTION APPEARS TO HAVE BEEN MADE IN AN
ATTEMPT TO ESTABLISH MR. QUILLIN'S STATUS AS AN INTERMITTENTLY RATHER
THAN A TEMPORARILY-EMPLOYED EXPERT. THE INDICATION ON THE ORIGINAL FORM
THAT TRAVEL EXPENSES AND PER DIEM WERE PAYABLE IN CONNECTION WITH TRAVEL
AWAY FROM THE EMPLOYEE'S HOME OR REGULAR PLACE OF BUSINESS, WHICH IS
AUTHORIZED UNDER 5 U.S.C. 5703 ONLY IN THE CASE OF AN
INTERMITTENTLY-EMPLOYED EXPERT OR CONSULTANT, IS INCONSISTENT WITH THE
AUTHORIZATION OF HOLIDAY AND LEAVE BENEFITS WHICH MAY BE GRANTED ONLY IN
THE CASE OF TEMPORARILY-EMPLOYED EXPERTS OR CONSULTANTS HAVING
REGULARLY-SCHEDULED TOURS OF DUTY, 27 COMP. GEN. 651 (1948).
NOTWITHSTANDING THE MODIFICATION OF THE STANDARD FORM 50 TO MAKE MR.
QUILLIN'S ENTITLEMENTS CONFORM TO THOSE OF AN INTERMITTENTLY-EMPLOYED
EXPERT, THE CERTIFYING OFFICER REFUSED TO CERTIFY HIS VOUCHER SINCE, IN
HIS OPINION, THE RECORD DEMONSTRATED THAT MR. QUILLIN HAS WORKED A
REGULAR TOUR OF DUTY ON A CONTINUING BASIS FOR A TOTAL OF 98 DAYS AND
THUS HAD FUNCTIONED AS A TEMPORARILY-EMPLOYED EXPERT. IN REGARD TO
WHETHER AN INDIVIDUAL IS TEMPORARILY OR INTERMITTENTLY-EMPLOYED,
SUBCHAPTER S1-2 OF CHAPTER 304 OF THE FEDERAL PERSONNEL MANUAL PROVIDES
THE FOLLOWING GUIDANCE:
"(5) INTERMITTENT EMPLOYMENT MEANS (A) OCCASIONAL OR IRREGULAR
EMPLOYMENT (B) ON PROGRAMS, PROJECTS, PROBLEMS, OR PHASES THEREOF,
REQUIRING INTERMITTENT SERVICE. WHEN AN INTERMITTENT EXPERT OR
CONSULTANT WORKS MORE THAN ONE-HALF OF FULL-TIME EMPLOYMENT, I.E., HE IS
PAID FOR ALL OR ANY PART OF A DAY FOR MORE THAN 130 DAYS IN A SERVICE
YEAR, HIS EMPLOYMENT AUTOMATICALLY CEASES TO BE INTERMITTENT AND BECOMES
TEMPORARY. UNDER THESE CIRCUMSTANCES, THE EMPLOYEE MAY BE REAPPOINTED
IN THE NEXT SERVICE YEAR ONLY ON A PURELY INTERMITTENT BASIS, AS DEFINED
ABOVE. IF AT ANY TIME IT IS DETERMINED THAT THE EMPLOYEE'S WORK IS NO
LONGER INTERMITTENT IN NATURE, HIS EMPLOYMENT MUST BE TERMINATED
IMMEDIATELY.
"(6) TEMPORARY EMPLOYMENT MEANS (A) EMPLOYMENT FOR ONE YEAR OR LESS
(B) ON PROGRAMS, PROJECTS, PROBLEMS, OR PHASES THEREOF, REQUIRING
TEMPORARY SERVICE FOR ONE YEAR OR LESS."
REGARDLESS OF THE FACT THAT MR. QUILLIN'S APPOINTMENT HAS BEEN
VARIOUSLY DESIGNATED TEMPORARY AND/OR INTERMITTENT, IT IS THE ACTUAL
NATURE OF HIS EMPLOYMENT THAT IS DETERMINATIVE OF ITS CHARACTER AS WELL
AS HIS ENTITLEMENT TO TRANSPORTATION AND PER DIEM EXPENSES. IN 35 COMP.
GEN. 90 (1955) WE CONSIDERED THE CIRCUMSTANCE OF AN EXPERT WHO HAD BEEN
APPOINTED BY THE DEPARTMENT OF COMMERCE, PURPORTEDLY ON AN INTERMITTENT
BASIS, AND WHO CLAIMED PER DIEM EXPENSES WHILE AWAY FROM HIS RESIDENCE
AND AT HIS DUTY POINT IN WASHINGTON, D.C. IN FACT THE RECORD
DEMONSTRATED THAT THE EMPLOYEE HAD PERFORMED ON A CONTINUOUS BASIS. WE
THERE STATED:
"THE TERM 'EMPLOYED INTERMITTENTLY' AS USED IN THE QUOTED SECTION HAS
BEEN CONSTRUED BY DECISIONS OF OUR OFFICE TO REFER TO OCCASIONAL OR
IRREGULAR EMPLOYMENT AS DISTINGUISHED FROM CONTINUOUS EMPLOYMENT OF THE
TYPE INVOLVED IN THE CASE UNDER CONSIDERATION. REGULAR CONTINUOUS
EMPLOYMENT IS DIRECTLY OPPOSED TO THE CONCEPT OF EMPLOYMENT ON AN
INTERMITTENT BASIS AND WE FAIL TO SEE ANY VALID GROUNDS FOR EXTENDING
THE SCOPE OF SECTION 5 TO INCLUDE PERSONS EMPLOYED OTHER THAN UPON AN
INTERMITTENT BASIS. THE FACT THAT THE EMPLOYEE IN QUESTION MAY HAVE
MAINTAINED HIS RESIDENCE IN GLENCOE, ILLINOIS, DURING THE ENTIRE PERIOD
INVOLVED IS NOT DEEMED TO BE CONTROLLING AS TO HIS PER DIEM RIGHTS UNDER
SECTION 5. WE SHOULD IMAGINE THAT IN MANY CASES PERSONS GIVEN TEMPORARY
APPOINTMENTS FOR CONTINUOUS PERIODS UNDER SECTION 15 OF THE ACT OF
AUGUST 2, 1946, 5 U.S. CODE 55A, RETAIN AND MAINTAIN THEIR HOMES AWAY
FROM THEIR POSTS OF ASSIGNMENTS, YET SUCH FACT WOULD NOT AFFORD THEM A
RIGHT TO A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE UNDER SECTION 5
SINCE THE CONTROLLING FACTOR UNDER THAT SECTION IS THE INTERMITTENT
CHARACTER OF THE EMPLOYMENT."
OUR REVIEW OF THE RECORD IN THIS CASE LEAVES LITTLE DOUBT THAT MR.
QUILLIN WAS EMPLOYED ON A TEMPORARY RATHER THAN INTERMITTENT BASIS.
BOTH THE ORIGINAL AND THE CORRECTED STANDARD FORM 50 ISSUED IN
CONNECTION WITH MR. QUILLIN'S EMPLOYMENT INDICATE THAT HE WAS HIRED TO
WORK 100 DAYS UNDER THE APPOINTMENT, BEGINNING FEBRUARY 26, 1973, AND
THAT HE WOULD NOT WORK IN EXCESS OF THAT NUMBER OF DAYS WITHIN FISCAL
YEAR 1973, WHICH TERMINATED JUNE 30, 1973. INASMUCH AS THERE ARE LESS
THAN 100 WEEKDAYS BETWEEN FEBRUARY 26, 1973, AND JUNE 30, 1973, AND
SINCE MR. QUILLIN'S TIME AND ATTENDANCE RECORDS FOR THAT PERIOD
DEMONSTRATE THAT HE DID IN FACT WORK ON EACH OF THOSE REGULAR WORKDAYS
AS WELL AS ON SEVERAL WEEKEND DAYS, WE CANNOT CONCLUDE OTHER THAN THAT
IT WAS CONTEMPLATED THAT HE WOULD SERVE ON A TEMPORARY BASIS AND THAT HE
DID IN FACT SERVE UNDER HIS APPOINTMENT ON THAT BASIS. THE REGULAR AND
UNINTERRUPTED CHARACTER OF HIS PERFORMANCE PRECLUDES ANY FINDING OTHER
THAN HE WAS TEMPORARILY EMPLOYED.
FOR THE FOREGOING REASONS, THE DENIAL OF MR. QUILLIN'S CLAIM BY OUR
TRANSPORTATION AND CLAIMS DIVISION IS AFFIRMED.
B-180886, AUG 19, 1974
HEADNOTES-UNAVAILABLE
WHERE FORMER ENLISTED MAN CLAIMED REIMBURSEMENT FOR ONE MONTH'S
RENTAL COST INCURRED IN SETTLEMENT OF HIS LEASE AT THE OLD STATION
INCIDENT TO A PERMANENT CHANGE OF STATION, CLAIM DOES NOT CONTAIN SUCH
ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO WARRANT SUBMISSION TO
CONGRESS AS MERITORIOUS CLAIM UNDER MERITORIOUS CLAIMS ACT OF 1928.
RENTAL COST INCIDENT TO ARMY SERVICE UNDER MERITORIOUS CLAIMS ACT -
MR. JAMES N. CHURILO:
THIS ACTION IS IN RESPONSE TO CLAIM OF FORMER ARMY MEMBER FOR
REIMBURSEMENT OF ONE MONTHS' RENT IN THE AMOUNT OF $178.01 INCURRED IN
SETTLEMENT OF HIS LEASE AT THE OLD STATION INCIDENT TO A PERMANENT
CHANGE OF STATION WHILE ON ACTIVE DUTY WITH THE UNITED STATES ARMY IN
GERMANY. THE CLAIM WAS FORWARDED TO THE TRANSPORTATION AND CLAIMS
DIVISION OF OUR OFFICE BY THE FIELD SERVICES OFFICE, UNITED STATES ARMY
FINANCE SUPPORT AGENCY, INDIANAPOLIS, INDIANA, FOR CONSIDERATION UNDER
THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236.
IT IS ADMINISTRATIVELY REPORTED THAT THE MEMBER'S DUTY STATION
(HANDORF DETACHMENT, BORDER SITE COMMAND, AUGSBURG, GERMANY) WAS
OPERATIONALLY CLOSED IN THE LAST WEEK OF NOVEMBER 1972. THE LEASE ON
THE MEMBER'S LOCAL APARTMENT REQUIRED 90 DAY'S NOTICE PRIOR TO VACATING
AND ALTHOUGH THE MEMBER GAVE NOTICE TO HIS LANDLORD AS SOON AS POSSIBLE
HE WAS NOT ABLE TO COMPLY WITH THAT REQUIREMENT. THE ARMY DID NOT
REQUIRE THE MEMBER AND HIS WIFE TO MOVE TO HIS NEW ASSIGNED STATION AT
AUGSBURG UNTIL JANUARY 1, 1973, AT WHICH TIME HE VACATED THE LEASED
APARTMENT. A NEW TENANT TOOK OVER THE APARTMENT ON FEBRUARY 1, 1973.
AS A RESULT, THE MEMBER HAD TO FORFEIT ONE MONTH'S RENTAL (JANUARY 1973)
OF $178.01 TO HIS LANDLORD. THIS AMOUNT WAS COLLECTED BY DEDUCTION FROM
THE MEMBER'S RENT DEPOSIT, THE EXCESS OF SUCH DEPOSIT BEING RETURNED TO
HIM. IN VIEW OF THE FOREGOING, THE MEMBER SEEKS REIMBURSEMENT FOR ONE
MONTH'S RENT IN THE AMOUNT OF $178.01.
SINCE THE LAW AND REGULATIONS AFFORDED NO LEGAL BASIS FOR PAYMENT OF
RENTAL COST IN SITUATIONS SUCH AS HERE INVOLVED, THE CLAIM WAS FORWARDED
HERE FOR CONSIDERATION UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS
ACT OF 1928, 31 U.S.C. 236.
THE MERITORIOUS CLAIMS ACT PROVIDES THAT WHEN A CLAIM AGAINST THE
UNITED STATES IS FILED IN THIS OFFICE THAT MAY NOT BE LAWFULLY ADJUSTED
BY USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM IN OUR
JUDGMENT CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE
DESERVING OF THE CONSIDERATION OF THE CONGRESS, IT SHALL BE SUBMITTED TO
THE CONGRESS WITH OUR RECOMMENDATIONS. THE REMEDY IS AN EXTRAORDINARY
ONE AND ITS USE IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES IN WHICH THERE
ARE ELEMENTS OF LEGAL LIABILITY OR EQUITY ON WHICH THE GENERAL
ACCOUNTING OFFICE WOULD TAKE ACTION AND ALLOW BUT FOR THE FACT THAT
THERE IS NO APPROPRIATION AVAILABLE FOR ADJUSTMENT. 34 COMP. GEN. 490
(1955).
WHILE WE APPRECIATE THE CIRCUMSTANCES LEADING TO THE CLAIM FOR THE
EXPENSE OF ONE MONTH'S RENTAL, THERE ARE NUMEROUS CASES WHERE MEMBERS
HAVE BEEN PUT TO SIMILAR ADDITIONAL PERSONAL EXPENSES INCIDENT TO
PERMANENT CHANGES OF STATION, INCLUDING EXPENSES INCIDENT TO THE
TERMINATION OF AN UNEXPIRED LEASE. THE CONGRESS HAS NOT SEEN FIT TO
PROVIDE SPECIFICALLY FOR REIMBURSEMENT OF THIS TYPE OF EXPENSE.
MISCELLANEOUS COSTS INCIDENT TO TRANSFER ARE PROVIDED FOR TO A LIMITED
EXTEND THROUGH THE GRANT OF A DISLOCATION ALLOWANCE UNDER 37 U.S.C. 407.
IN THE CIRCUMSTANCES WE DO NOT CONSIDER THAT THIS CASE INVOLVES SUCH
UNUSUAL ELEMENTS OF EQUITY WHICH WOULD WARRANT SUBMISSION OF THE CLAIM
TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT. ACCORDINGLY, NO
FURTHER ACTION WILL BE TAKEN ON THE MATTER.
B-181032, AUG 19, 1974
HEADNOTES-UNAVAILABLE
EMPLOYEE WHO WAS TRANSFERRED FOR OFFICIAL CHANGE OF STATION CLOSED
THE SALE ON HIS RESIDENCE ON AUGUST 27 AND WAS INTENDING TO DEPART OLD
STATION ON SAME DAY BUT WAS PREVENTED FROM DOING SO DUE TO BREAKDOWN OF
MOVING VAN IS ENTITLED TO RECOVER SUBSISTENCE EXPENSES UNDER SECTION
2-5.2C OF FEDERAL TRAVEL REGULATIONS COVERING MEALS FOR HIMSELF AND HIS
FAMILY UNTIL SEPTEMBER 1, DAY OF DEPARTURE ON GROUND OF HAVING
CONSTRUCTIVELY VACATED OLD RESIDENCE QUARTERS ON AUGUST 27.
BEVERLY L. DRIVER - WHAT CONSTITUTES TEMPORARY QUARTERS:
THIS DECISION INVOLVES THE PROPRIETY OF CERTIFYING FOR PAYMENT THE
RECLAIM VOUCHER OF MR. BEVERLY L. DRIVER IN THE AMOUNT OF $50
REPRESENTING SUBSISTENCE EXPENSES INCURRED AS A RESULT OF HIS CHANGE OF
OFFICIAL DUTY STATION FROM ANN ARBOR, MICHIGAN, TO FORT COLLINS,
COLORADO, AS AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE. THE FACTS IN
THIS CASE ARE NOT IN DISPUTE. IN IMPLEMENTING HIS TRANSFER FROM ANN
ARBOR TO FORT COLLINS, MR. DRIVER HAD CLOSED THE SALE OF HIS RESIDENCE
AT THE OLD DUTY STATION ON AUGUST 27, 1973, AND HAD MADE ARRANGEMENTS
WITH A COMMON CARRIER TO PICK UP HIS HOUSEHOLD EFFECTS ON THE SAME DATE
FOR TRANSFER TO FORT COLLINS. IN PREPARATION FOR THE PICKUP THE
HOUSEHOLD GOODS WERE PACKED, INCLUDING STOVE AND REFRIGERATOR, AND THE
HOUSE WAS CLEANED. DUE TO A BREAKDOWN OF THE MOVING VAN IN CALIFORNIA,
THE COMMON CARRIER FAILED TO PICK UP ITS CARGO AND MR. DRIVER AND HIS
FAMILY REMAINED IN THE OLD RESIDENCE UNTIL SEPTEMBER 1, 1973, THE DAY ON
WHICH THE COMMON CARRIER PICKED UP THE HOSEHOLD GOODS.
FROM AUGUST 27 UNTIL SEPTEMBER 1, MR. DRIVER AND HIS FAMILY SLEPT ON
MATTRESSES IN THE OLD RESIDENCE BY SPECIAL PERMISSION OF THE NEW OWNER
AND SPENT $50 FOR MEALS WHICH ARE PROPERLY ITEMIZED BY DATE.
THE AMOUNT CLAIMED WAS ORIGINALLY SUSPENDED ON THE BASIS OF SECTION
2-5.2C OF THE FEDERAL TRAVEL REGULATIONS, WHICH REQUIRES THAT THE
RESIDENCE QUARTERS IN WHICH THE FAMILY WAS RESIDING AT THE TIME THE
TRANSFER WAS AUTHORIZED BE VACATED PRIOR TO OCCUPYING "TEMPORARY
QUARTERS."
ON RESUBMISSION OF THE CAIM BY MR. DRIVER, THE APPROPRIATE AUTHORIZED
CERTIFYING OFFICER HAS SUBMITTED THE VOUCHER TO THIS OFFICE AND
REQUESTED AN ADVANCE DECISION UPON IT UNDER 31 U.S.C. 82D AS A DOUBTFUL
CLAIM.
THIS OFFICE HAS IN THE PAST GIVEN GREAT WEIGHT TO THE CIRCUMSTANCES
SURROUNDING EACH CASE WHERE THE QUESTION OF WHAT CONSTITUTES "TEMPORARY
QUARTERS" HAS ARISEN. WE HAVE PAID PARTICULAR ATTENTION TO THE INTENT
OF THE EMPLOYEE IN MAKING A RESIDENCE HIS PERMANENT LIVING QUARTERS.
UNDER THE CIRCUMSTANCES OF THIS CASE THERE IS NO DOUBT THAT THE
RESIDENCE OCCUPIED BY MR. DRIVER AND HIS FAMILY AFTER THE CLOSING OF THE
SALE WAS NOT INTENDED AS PERMANENT QUARTERS. HE HAD, TO ALL INTENTS AND
PURPOSES, VACATED THE RESIDENCE WHICH NO LONGER BELONGED TO HIM, AND WAS
PERMITTED TO REOCCUPY IT ONLY AT THE SUFFERANCE OF THE NEW OWNERS. SUCH
RESIDENCE COULD THEREFORE BE CONSIDERED, CONSTRUCTIVELY, AS TEMPORARY
QUARTERS AFTER THE CLOSING OF THE SALE AND THE DATE ON WHICH THE
HOUSEHOLD GOODS WERE PICKED UP FOR TRANSFER TO THE NEW OFFICIAL STATION.
ACCORDINGLY, THE RECLAIM VOUCHER MAY BE CERTIFIED FOR PAYMENT IF
OTHERWISE CORRECT.
B-181129, AUG 19, 1974
HEADNOTES-UNAVAILABLE
TRANSFERRED EMPLOYEE AGREED TO PAY BROKER CUSTOMARY FEE INCIDENT TO
SALE OF RESIDENCE AND ENTERED INTO GUARANTEE TO PURCHASE PLAN AGREEMENT
WHERBY THE BROKER WOULD PURCHASE THE RESIDENCE IF NOT SOLD BY CERTAIN
DATE. REIMBURSEMENT OF 2 1/2 PERCENT FEE AND $125 FOR ADDITIONAL COST
OF RESALE CHARGED BY BROKER. WHO PURCHASED RESIDENCE UNDER THE PLAN, IS
NOT AUTHORIZED SINCE 5 U.S.C. 5724A(A)(4) AND SECTION 2-6.2A OF THE
FEDERAL TRAVEL REGULATIONS, FPMR 101-7, LIMIT REIMBURSEMENT OF BROKERAGE
FEE TO THAT CUSTOMARILY CHARGED FOR SALE OF RESIDENCE IN LOCALITY WHERE
RESIDENCE IS SITUATED.
ROBERT W. FREUNDT - BROKERAGE FEES:
BY LETTER OF APRIL 22, 1974, FROM A CERTIFYING OFFICER OF THE
DEPARTMENT OF THE INTERIOR, AN ADVANCE DECISION WAS REQUESTED AS TO
WHETHER MR. ROBERT W. FREUNDT, A NATIONAL PARK SERVICE EMPLOYEE, MAY BE
REIMBURSED FOR A GUARANTEED SALES FEE AND THE ADDITIONAL COST OF A
RESALE FEE BESIDES A BROKERAGE FEE INCURRED INCIDENT TO THE SALE OF HIS
RESIDENCE UPON PERMANENT CHANGE OF STATION IN JANUARY 1974.
THE QUESTIONED ITEMS ARE A 2 1/2 PERCENT GUARANTEE PURCHASE FEE,
$887.50, AND THE SUM OF $125 FOR ADDITIONAL COST OF RESALE, WHICH THE
SETTLEMENT SHEET INDICATES WERE DEDUCTED FROM THE PROCEEDS DUE THE
EMPLOYEE IN ADDITION TO THE DEDUCTION OF THE 6 PERCENT COMMISSION
CUSTOMARILY CHARGED IN THE LOCALITY FOR THE SALE OF A RESIDENCE. THE
RECORD INDICATES THE PROPERTY WAS SOLD IN ACCORDANCE WITH A GUARANTEE TO
PURCHASE AGREEMENT, UNDER THE TERMS OF WHICH THE PROPERTY WAS TO BE SOLD
TO THE BROKER AT A SPECIFIED PRICE IF NOT SOLD TO A THIRD PARTY BY
JANUARY 31, 1974--THE APPROXIMATE DATE ON WHICH THE EMPLOYEE WAS TO
REPORT TO HIS NEW STATION. PROVISION WAS MADE IN THE AGREEMENT FOR THE
USUAL 6 PERCENT COMMISSION AND FOR THE ADDITIONAL FEES BECAUSE OF THE
RISK ASSUMED BY THE BROKER AND BECAUSE OF THE SPECIAL SERVICES OFFERED
IN THE GUARANTEED SALES PLAN.
5 U.S.C. 5724A(A)(4) PROVIDES THAT "REIMBURSEMENT FOR BROKERAGE FEES
ON THE SALE OF THE RESIDENCE *** MAY NOT EXCEED THOSE CUSTOMARILY
CHARGED IN THE LOCALITY WHERE THE RESIDENCE IS LOCATED." SECTION 2-6.2A
OF THE FEDERAL TRAVEL REGULATIONS EFFECTIVE MAY 1. 1973, FPMR 101-7,
CONTAINS A SIMILAR RESTRICTION. WE HAVE HELD THAT UNDER SUCH
PROVISIONS, BROKERAGE FEES ARE NOT REIMBURSABLE TO THE EXTENT THEY
EXCEED THE FEE NORMALLY CHARGED IN THE AREA WHERE THE RESIDENCE IS
SITUATED EVEN THOUGH \HE HIGHER FEES WERE CHARGED TO EXPEDITE THE SALE
OF THE RESIDENCE. B-165200, SEPTEMBER 23, 1968, AND B-166764, MAY 21,
1969.
SINCE THE RECORD DOES NOT ESTABLISH THAT A COMMISSION RATE OVER 6
PERCENT IS CUSTOMARILY PAID IN THE AREA WHERE THE RESIDENCE WAS LOCATED,
AS IS REQUIRED BY THE ABOVE STATUTE AND REGULATION, THE ADDITIONAL FEES
PAID TO THE BROKER FOR SELLING SERVICES ARE NOT REIMBURSABLE.
THEREFORE, THE ADDITIONAL FEES ON THE EMPLOYEE'S VOUCHER MAY NOT BE
CERTIFIED FOR PAYMENT.
B-181130, AUG 19, 1974
HEADNOTES-UNAVAILABLE
1. WHERE ONE OFFEROR SUBMITTED NEW TEST PROCEDURE OTHER THAN ONE
REQUIRED BY RFP, WHICH WAS SUBSEQUENTLY APPROVED BY AGENCY, OTHER
OFFEROR WAS ENTITLED UNDER ASPR 3-805.4 TO BE ADVISED OF SUCH CHANGE AND
ALLOWED TO SUBMIT REVISED PROPOSAL BASED ON ACCEPTABILITY OF NEW TEST
METHOD. ON RECORD BEFORE GAO, POSSIBLE PRICE IMPACT ON PROPOSER NOT
PERMITTED TO RESPOND TO CHANGE IS SPECULATIVE AND UNWARRANTED IN VIEW OF
FACT THAT OFFERORS DID NOT COMPETE ON EQUAL BASIS.
2. BECAUSE OF ADVANCED STAGE OF CONTRACT AND FACT THAT GOVERNMENT
WILL OBTAIN ITEMS WITHIN AN ACCEPTABLE TIMEFRAME, TERMINATION OF THE
CONTRACT FOR THE CONVENIENCE OF THE GOVERNMENT IS NOT RECOMMENDED
DESPITE IMPROPER FAILURE OF NAVY PROCURING ACTIVITY TO AMEND RFP TO
PERMIT ALTERNATE TEST METHOD, AND ACCEPTING FOR AWARD PROPOSAL DEVIATING
FROM RFP BY OFFERING AN ALTERNATE TEST METHOD AND A LONGER DELIVERY
SCHEDULE THAN REQUIRED.
3. RFP PROVISION STATING THAT PROPOSALS OFFERING DELIVERY BEYOND
REQUIRED DELIVERY TIME WILL BE CONSIDERED NONRESPONSIVE TO RFP AND
REJECTED IS INAPPROPRIATE IN THE CONTEXT OF A NEGOTIATED PROCUREMENT.
REQUEST FOR PROPOSALS (RFP) N00104-74-R-VA21 WAS ISSUED ON SEPTEMBER
10, 1973, AND SOLICITED OFFERS FOR THREE MODULE ASSEMBLIES BY THE NAVY
SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA.
UNIDYNAMICS/ST. LOUIS, INC. (UNIDYNAMICS), WAS THE ONLY SOURCE
SOLICITED; HOWEVER, AN UNSOLICITED PROPOSAL WAS RECEIVED FROM OCEAN
TECHNOLOGY, INC. (OTI), PRIOR TO THE CLOSING DATE FOR RECEIPT OF
PROPOSALS OF OCTOBER 10, 1973.
THE TWO PROPOSALS QUOTED THE FOLLOWING PRICES:
UNIT PRICE TOTAL
UNIDYNAMICS $5,599.65 $16,798.95
OTI 4,250.00 12,740.00
THE RFP CONTAINED THE FOLLOWING NOTATION CONCERNING TESTING OF THE
ASSEMBLIES:
"NOTE: MANUFACTURER WILL BENCH TEST 100% IN ACCORDANCE WITH DRAWING
1478921 AS REQUIRED BY NOTE 11 OF DRAWING NR. 1478840. BENCH TESTS TO
BE WITNESSED AND VERIFIED BY DCAS PERSONNEL."
WITH RESPECT TO THE TESTING OF THE ASSEMBLIES, THE PROPOSAL PRICE OF
UNIDYNAMICS WAS BASED ON THE "RENT-FREE USE OF A GOVERNMENT MK3 MOD 8
DUMMY DIRECTOR, WHICH IS CURRENTLY IN OUR POSSESSION HELD UNDER CONTRACT
N600 (19) 64978 AND FOR WHICH AUTHORIZATION IS REQUIRED." OTI TOOK NO
EXCEPTION IN ITS PROPOSAL TO THE TEST REQUIREMENTS IMPOSED BY THE RFP.
ON OCTOBER 19, 1973, THE CONTRACTING OFFICER TELEPHONED OTI TO INQUIRE
HOW IT INTENDED TO COMPLY WITH THE TEST REQUIREMENTS. OTI REPLIED THAT
IT WOULD BUILD ITS OWN TEST EQUIPMENT AND ON NOVEMBER 28, 1973, OTI WAS
REQUESTED TO SUBMIT ITS PROPOSED TEST PROCEDURE TO THE NAVY FOR
TECHNICAL EVALUATION. THE OTI TEST PROCEDURE, WHEREIN A SERVO-MECHANISM
IS SUBSTITUTED FOR THE DUMMY DIRECTOR, WAS APPROVED FORMALLY BY THE
TECHNICAL EVALUATORS ON MARCH 29, 1974, BECAUSE THE SERVO-MECHANISM
COULD PROVIDE CERTAIN SIGNALS REQUIRED BY PERFORMANCE TEST AND
ADJUSTMENT REQUIREMENTS OF DRAWING 1478921. ON APRIL 2, 1974, AWARD WAS
MADE TO OTI.
UNIDYNAMICS WAS ADVISED OF THE AWARD ON APRIL 22, 1974, AND ON APRIL
24, 1974, PROTESTED THE AWARD TO OUR OFFICE. FOLLOWING OUR RECEIPT OF
THE NAVY REPORT ON THE PROTEST ON JUNE 10, 1974, UNIDYNAMICS FILED
COMMENTS WITH OUR OFFICE ON JUNE 28, 1974. OTI DECLINED TO OFFER
COMMENTS.
UNIDYNAMICS CONTENDS THAT THE TESTING METHOD TO BE UTILIZED BY OTI
WHICH THE NAVY EVENTUALLY ACCEPTED AMOUNTED TO A SUBSTANTIAL CHANGE IN
THE TESTING REQUIREMENTS. THE FIRM STRESSES ITS POSITION THAT THE RFP
REQUIRED COMPLETE COMPLIANCE WITH THE APPLICABLE DRAWING WHICH CALLED
FOR TESTING TO BE ACCOMPLISHED ONLY WITH A DUMMY DIRECTOR. THE CHANGE,
IT IS ALLEGED, SHOULD HAVE BEEN COMMUNICATED TO IT BY AMENDMENT TO
AFFORD AN OPPORTUNITY TO REVISE ITS OFFER. ACCORDING TO UNIDYNAMICS,
ITS PROPOSAL PRICES WOULD HAVE BEEN REDUCED SUBSTANTIALLY HAD IT KNOWN
THAT THE TEST REQUIREMENT FOR USE OF A DUMMY DIRECTOR HAD BEEN WAIVED.
IT IS THE NAVY'S POSITION THAT THE TESTING REQUIREMENTS WERE NOT
MODIFIED. THE NAVY BELIEVES THAT THE TESTING REQUIRED BY THE APPLICABLE
DRAWING CAN BE ACCOMPLISHED BY USE OF THE SERVO-MECHANISM AS APPROVED BY
ITS TECHNICAL EVALUATORS. THE NAVY ARGUES THAT, SINCE THE PROPOSAL OF
UNIDYNAMICS WAS BASED ON THE RENT-FREE USE OF A GOVERNMENT-FURNISHED
DUMMY DIRECTOR, THE USE OF DIFFERENT EQUIPMENT TO PERFORM THE SAME TESTS
WOULD HAVE NO PRICE IMPACT ON UNIDYNAMICS' OFFER.
BASED UPON THE GAO REVIEW, WE CONCLUDE THAT, CONTRARY TO THE NAVY'S
POSITION, THE ACCEPTANCE OF THE SERVO-MECHANISM REPRESENTED A CHANGE IN
THE RFP'S TESTING REQUIREMENTS.
AS SUCH, THE RFP SHOULD HAVE BEEN AMENDED IN ORDER TO GIVE
UNIDYNAMICS AN OPPORTUNITY TO SUBMIT A REVISED PROPOSAL AS REQUIRED BY
SECTIONS 3-805.4(A) AND (C) OF THE ARMED SERVICES PROCUREMENT REGULATION
(ASPR), WHICH READ AS FOLLOWS:
"(A) WHEN, EITHER BEFORE OR AFTER RECEIPT OF PROPOSALS, CHANGES OCCUR
IN THE GOVERNMENT'S REQUIREMENTS OR A DECISION IS MADE TO RELAX,
INCREASE OR OTHERWISE MODIFY THE SCOPE OF THE WORK OR STATEMENT OF
REQUIREMENTS, SUCH CHANGE OR MODIFICATION SHALL BE MADE IN WRITING AS AN
AMENDMENT TO THE SOLICITATION. WHEN TIME IS OF THE ESSENCE, ORAL ADVICE
OF CHANGES MAY BE GIVEN IF (I) THE CHANGES INVOLVED ARE NOT COMPLEX IN
NATURE, (II) A RECORD IS MADE OF THE ORAL ADVICE GIVEN, (III) ALL FIRMS
TO BE NOTIFIED (SEE (B) BELOW) ARE NOTIFIED AS NEAR TO THE SAME TIME AS
FEASIBLE, PREFERABLY THE SAME DAY, AND (IV) THE ORAL ADVICE IS PROMPTLY
CONFIRMED BY THE WRITTEN AMENDMENT.
"(C) WHEN A PROPOSAL CONSIDERED TO BE MOST ADVANTAGEOUS TO THE
GOVERNMENT INVOLVES A DEPARTURE FROM THE STATED REQUIREMENTS, ALL
OFFERORS SHALL BE GIVEN AN OPPORTUNITY TO SUBMIT NEW OR AMENDED
PROPOSALS UNDER (A) OR (B) ABOVE ON THE BASIS OF THE REVISED
REQUIREMENTS, PROVIDED THIS CAN BE DONE WITHOUT REVEALING TO THE OTHER
OFFERORS THE SOLUTION PROPOSED IN THE ORIGINAL DEPARTURE OR ANY
INFORMATION WHICH IS ENTITLED TO PROTECTION UNDER 3-507.1."
IN SUPPORT OF THIS CONCLUSION, THE SOLICITATION STATED THAT TESTING
WAS TO BE "100% IN ACCORDANCE WITH DRAWING 1478921." WHILE THE SUBSTANCE
OF TESTING RESULTS ACHIEVED WITH THE SERVO-MECHANISM MAY SATISFY THE
NAVY'S MINIMUM NEEDS, THE DRAWING CLEARLY CALLS FOR TESTING TO BE
PERFORMED WITH A DUMMY DIRECTOR. NO LANGUAGE PERMITTING THE USE OF
ALTERNATE EQUIPMENT IS ON THE DRAWING. WE BELIEVE THAT THE SUBSTITUTION
OF A DIFFERENT TYPE OF TEST EQUIPMENT CONSTITUTES A SUFFICIENT DEVIATION
FROM THE ORIGINAL RFP TO REQUIRE COMPLIANCE WITH THE ABOVE-CITED ASPR
SECTIONS.
REGARDING THE NAVY'S ARGUMENT THAT THERE WOULD BE NO PRICE IMPACT,
UNIDYNAMICS DISAGREES. UNIDYNAMICS STATES THAT NUMEROUS COSTLY
CALIBRATIONS ARE NECESSARY IN ORDER TO EMPLOY THE DUMMY DIRECTOR WHICH
ARE NOT NECESSARY WITH THE SERVO-MECHANISM. OUR OFFICE IS NOT EQUIPPED
TO RESOLVE THE DISAGREEMENT IN THIS TECHNICAL AREA. HOWEVER, ON THE
RECORD BEFORE US, A CONSIDERATION OF WHAT UNIDYNAMICS MAY OR MAY NOT
HAVE DONE IN REVISING ITS PROPOSAL TO THE CHANGED REQUIREMENTS IS A
MATTER OF SPECULATION UNWARRANTED IN VIEW OF THE FACT THAT THE TWO
OFFERORS DID NOT COMPETE ON AN EQUAL BASIS. SEE 48 COMP. GEN. 663
(1969); AND B-175968, OCTOBER 17, 1972.
NOT ONLY DID THE PROCURING ACTIVITY IMPROPERLY FAIL TO AMEND THE RFP,
BUT THE ACCEPTANCE OF THE OTI PROPOSAL FOR AWARD CONTAINING THE USE OF
THE SERVO-MECHANISM FOR TESTING DEVIATED FROM THE ESTABLISHED RFP
REQUIREMENTS. IN ADDITION, IN OUR REVIEW OF THE SOLICITATION, OUR
OFFICE NOTED THAT THE RFP REQUIRES DELIVERY WITHIN 120 DAYS AFTER THE
DATE OF CONTRACT. OTI OFFERED A 180-DAY DELIVERY SCHEDULE AND
UNIDYNAMICS OFFERED DELIVERY WITHIN 182 DAYS. AWARD WAS MADE TO OTI
BASED ON THE 180-DAY DELIVERY SCHEDULE OFFERED. SUCH BEING THE CASE,
THE AWARD WAS BASED ON AN OFFER THAT DID NOT CONFORM TO THE TERMS OF THE
RFP IN ANOTHER REGARD.
DESPITE THE ABOVE, WE HAVE BEEN ADVISED BY THE NAVY THAT THE CONTRACT
WITH OTI IS NEAR COMPLETION.
MOREOVER, THE GOVERNMENT WILL BE OBTAINING THE ASSEMBLIES WITHIN AN
ACCEPTABLE TIME-FRAME, AND IT WOULD NOT BE IN THE BEST INTEREST OF THE
GOVERNMENT TO TAKE REMEDIAL ACTION IN THE FORM OF RECOMMENDING
TERMINATION OF THE CONTRACT FOR THE CONVENIENCE OF THE GOVERNMENT AT
THIS LATE DATE. SEE 52 COMP. GEN. 215, 218 (1972); AND B-175798,
OCTOBER 6, 1972. HOWEVER, WE ARE ADVISING THE SECRETARY OF THE NAVY BY
LETTER OF TODAY THAT STEPS SHOULD BE TAKEN TO PRECLUDE A RECURRENCE OF
THESE SHORTCOMINGS IN PROCUREMENT PROCEDURES IN THE FUTURE.
IN CONCLUSION, ONE FURTHER PROCEDURAL SHORTCOMING, WHICH WE ARE ALSO
BRINGING TO THE ATTENTION OF THE SECRETARY OF THE NAVY, DESERVES
COMMENT. WE NOTE THAT THE DELIVERY PROVISIONS OF THE RFP CONTAINED THE
FOLLOWING LANGUAGE:
"OFFERS OFFERING DELIVERY BEYOND THE NUMBER OF DAYS STATED IN THE
COLUMN ENTITLED 'REQUIRED DELIVERY' WILL BE CONSIDERED NON-RESPONSIVE TO
THE SOLICITATION AND WILL BE REJECTED." (EMPHASIS ADDED.)
OUR OFFICE HAS STATED IN THE PAST THAT THE TERM NONRESPONSIVE IS
INAPPROPRIATE WHEN USED IN THE CONTEXT OF A NEGOTIATED PROCUREMENT DUE
TO THE INHERENT FLEXIBILITY OF NEGOTIATION WHICH REQUIRES DISCUSSIONS
WITH ALL OFFERORS WITHIN THE COMPETITIVE RANGE. SEE 51 COMP. GEN. 565,
570 (1972).
B-181242, AUG 19, 1974
HEADNOTES-UNAVAILABLE
1. WHERE ADVERTISED SOLICITATION REQUIRED THAT "DERRICKBOAT" TO BE
RENTED BY ARMY CORPS OF ENGINEERS BE EQUIPPED WITH "SPUD ENGINE" AND
WHERE, AFTER INSPECTION AND EVALUATION OF EXISTING EQUIPMENT DESCRIBED
IN BID, IT IS FOUND THAT SUCH EQUIPMENT DOES NOT COMPLY WITH
SPECIFICATIONS, REJECTION OF BID AS NONRESPONSIVE WAS PROPER. SINCE
REJECTION OF BID DID NOT REFLECT ON THE BIDDER'S ABILITY (CAPACITY) TO
PERFORM CONTRACT OR IN ANYWAY REFLECT ON ITS OVERALL RESPONSIBILITY,
CONTRACTING OFFICER WAS NOT REQUIRED BY ASPR 1-705.4(C) TO REFER MATTER
TO SBA FOR POSSIBLE CERTIFICATE OF COMPETENCY CONSIDERATION. 2.
BIDDER'S INTENTION TO COMPLY AND BE BOUND BY TERMS AND CONDITIONS OF
SOLICITATION MUST BE APPARENT FROM BID AS SUBMITTED. THE RESPONSIVENESS
OF A BID IS DETERMINED FROM FACE OF BID ITSELF AT THE TIME OF BID
OPENING AND TO ALLOW A BIDDER AN OPPORTUNITY TO CHANGE OR ALTER BID IN
ORDER TO MAKE IT RESPONSIVE IS TANTAMOUNT TO PERMITTING SUBMISSION OF
SECOND BID THEREFORE, PROTESTER'S CONTENTION THAT AGENCY WOULD ISSUE
ULTIMATUM OR COMPLIANCE DEADLINE AFTER BID OPENING TO PERMIT BIDDER
OPPORTUNITY TO ALTER BID IS WITHOUT MERIT AND, REJECTION IS PROPER WHERE
BID AS SUBMITTED IS NONRESPONSIVE.
3. FACT THAT PROTESTER WAS NOT FURNISHED PREAWARD NOTICE AS TO
REJECTION OF ITS BID PROVIDES NO BASIS FOR PROTEST SINCE THERE IS NO
ASPR REQUIREMENT THAT SUCH ADVANCE NOTICE BE GIVEN.
4. SINCE PROCUREMENT ACTIVITY HAS RESPONSIBILITY FOR DRAFTING
SPECIFICATIONS REFLECTING GOVERNMENT'S MINIMUM NEEDS AND DETERMINING
WHETHER PRODUCT OFFERED MEETS THE SPECIFICATIONS AND FURTHER, SINCE
AGENCY IS FAMILIAR WITH CONDITIONS UNDER WHICH EQUIPMENT WILL BE USED
AND IS IN BEST POSITION TO KNOW GOVERNMENT'S ACTUAL NEEDS, GAO WILL NOT
OBJECT TO REJECTION OF PROTESTER'S BID BASED ON AGENCY'S DETERMINATION
THAT PROPOSED EQUIPMENT WOULD NOT SATISFY NEEDS OF GOVERNMENT.
SHEFFIELD BUILDING COMPANY, INCORPORATED:
ON APRIL 1, 1974, INVITATION FOR BIDS (IFB) NO. DACW49-74-B-0050, WAS
ISSUED BY THE UNITED STATES ARMY ENGINEER DISTRICT, BUFFALO, NEW YORK.
THE IFB SOLICITATED BIDS FOR THE RENTAL OF A "DERRICKBOAT", FOR THE
PERIOD MAY 1, 1974, OR DATE OF CONTRACT AWARD THRU JUNE 30, 1974, TO
PERFORM MAINTENANCE REPAIR WORK TO THE BREAKWATER SYSTEM AT CLEVELAND
HARBOR, OHIO. FIVE BIDS WERE RECEIVED AND OPENED ON THE SCHEDULED
OPENING DATE, APRIL 25, 1974. THE APPARENT LOW BID OF $88,960 WAS
SUBMITTED BY SHEFFIELD BUILDING COMPANY, INCORPORATED (SHEFFIELD).
SECTION F OF THE SPECIFICATIONS READ IN PERTINENT PART:
"READY TO WORK EQUIPMENT SHALL INCLUDE FULLY RIGGED HOISTING, SWING
AND SPUD ENGINE AND DECK WINCHES."
IN ADDITION, ITEM 3 OF SECTION F REQUIRED THAT, "*** OPERATING SPUDS
*** SHALL BE IN PLACE UPON DELIVERY OF THE EQUIPMENT.
IN RESPONSE TO THE INVITATION'S REQUIREMENT FOR DESCRIPTIVE DATA,
SHEFFIELD'S BID INDICATED THAT IT PROPOSED TO FURNISH A DERRICKBOAT
MANUFACTURED BY WILLIAM D. VIRGIN TO PERFORM THE SERVICES REQUIRED BY
THE SOLICITATION. AT THE REQUEST OF THE CHIEF, SUPPLY AND PROCUREMENT
DIVISION, GOVERNMENT PERSONNEL INSPECTED AND EVALUATED THE EQUIPMENT
INTENDED TO BE FURNISHED AND FOUND THAT THE EQUIPMENT DID NOT FULLY
CONFORM TO THE SPECIFICATIONS. SHEFFIELD'S BID WAS DETERMINED TO BE
NONRESPONSIVE TO SECTION F, SPECIFICALLY ITEM 3, OF THE IFB, IN THAT THE
DERRICKBOAT PROPOSED TO BE FURNISHED BY THE BIDDER WAS EQUIPPED WITH
"SPUDS" WHICH COULD NOT BE RAISED EXCEPT BY USE OF A BARGE MOUNTED
CRANE, WHEREAS THE INVITATION REQUIRED A "SPUD ENGINE." AWARD WAS MADE
TO THE SECOND LOW BIDDER, DUNBAR AND SULLIVAN DREDGING COMPANY, AFTER
ITS PROPOSED EQUIPMENT WAS INSPECTED AND EVALUATED AND FOUND TO COMPLY
WITH THE REQUIREMENTS OF THE INVITATION.
SHEFFIELD FIRST CONTENDS THAT ITS BID WAS IMPROPERLY REJECTED FOR
LACK OF CAPACITY WITHOUT A REQUEST TO THE SMALL BUSINESS ADMINISTRATION
(SBA) FOR THE POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY. IN THIS
REGARD, ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-705.4(C) PROVIDES
THAT IF THE BID OF A SMALL BUSINESS CONCERN IS TO BE REJECTED SOLELY
BECAUSE THE CONTRACTING OFFICER HAS DETERMINED THE CONCERN TO BE
NONRESPONSIBLE AS TO CAPACITY OR CREDIT, THE MATTER SHALL BE REFERRED TO
SBA. ASPR 1-705.4(A) DEFINES CAPACITY AS THE OVERALL ABILITY OF A
PROSPECTIVE SMALL BUSINESS CONTRACTOR TO MEET QUALITY, QUANTITY, AND
TIME REQUIREMENTS OF A PROPOSED CONTRACT. THE RECORD OF THE INSTANT
PROCUREMENT INDICATES THAT SHEFFIELD'S BID WAS REJECTED BY THE
CONTRACTING OFFICIALS BECAUSE IT WAS FOUND TO BE NONRESPONSIVE TO A
MATERIAL REQUIREMENT OF THE SOLICITATION. THE DECISION OF THE PROCURING
ACTIVITY TO REJECT SHEFFIELD'S BID WAS BASED ON ITS DETERMINATION THAT
THE EQUIPMENT PROPOSED TO BE FURNISHED AND IDENTIFIED IN THE BID DID NOT
FULLY COMPLY WITH THE SPECIFICATIONS.
IN ADDITION, THE PROTESTER ARGUES THAT THE AGENCY HAS RAISED A
QUESTION REGARDING ITS CAPACITY SINCE THE ADMINISTRATIVE REPORT STATES
THAT ALTHOUGH THE EQUIPMENT AVAILABLE TO SHEFFIELD MIGHT HAVE BEEN "ABLE
TO ACCOMPLISH THE WORK", THE EQUIPMENT'S SLOWER RATE OF PERFORMANCE WAS
NOT ACCEPTABLE. IN OUR OPINION IT IS CLEAR THAT THE AGENCY'S
OBSERVATION IN THIS REGARD WAS INTENDED MERELY TO INDICATE THAT THE
PERFORMANCE OF SUCH EQUIPMENT DEVIATED FROM AND WOULD NOT SATISFY THE
AGENCY'S ESSENTIAL REQUIREMENTS. THUS THE CONTRACTING OFFICER DID NOT
IMPUGN THE PROTESTER'S ABILITY (CAPACITY) TO PERFORM THE CONTRACT OR IN
ANY WAY REFLECT ON ITS OVERALL RESPONSIBILITY. SUCH BEING THE CASE, THE
CONTRACTING OFFICER WAS NOT REQUIRED UNDER ASPR 1-705.4(C) TO REFER THE
MATTER TO SBA FOR COC CONSIDERATION.
SECONDLY, SHEFFIELD CONTENDS THAT THE PROCURING ACTIVITY'S ACTION IN
NOTIFYING IT THREE DAYS AFTER THE REJECTION OF ITS BID WAS NOT
JUSTIFIABLE IN VIEW OF ITS DAILY CALLS TO THE CONTRACTING OFFICE
REGARDING THE STATUS OF ITS BID. IN THIS REGARD, IT IS OUR POSITION
THAT THE PROCURING AGENCY COMPLIED WITH ASPR 2-408.1, WHICH REQUIRES
PROMPT NOTIFICATION TO UNSUCCESSFUL BIDDERS THAT THEIR BIDS HAVE NOT
BEEN ACCEPTED. THE CORPS OF ENGINEERS COMPLIED WITH THIS REQUIREMENT
WHEN IT FORWARDED ON MAY 8, 1974, A LETTER TO SHEFFIELD STATING THAT
AWARD HAD BEEN MADE TO THE SECOND LOW BIDDER AND STATING WHY ITS BID WAS
REJECTED. THERE IS NO REQUIREMENT IN ASPR THAT BIDDERS BE NOTIFIED IN
ADVANCE AS TO THE REJECTION OF THEIR BIDS.
SHEFFIELD ALSO ALLEGES THAT THE AGENCY'S DECISION TO REJECT ITS BID
WAS MADE ON THE BASIS OF AN UNSOUND INFERENCE THAT IT COULD NOT OR WOULD
NOT COMPLY WITH THE DEFINED SPECIFICATIONS. FURTHERMORE, SHEFFIELD
CONTENDS THAT IT DID NOT AMEND ITS BID BECAUSE IT ACTED UNDER THE
ASSUMPTION THAT EITHER AN ULTIMATUM OR COMPLIANCE DEADLINE WOULD BE
ISSUED BY THE AGENCY BEFORE ITS BID WAS REJECTED AS NONRESPONSIVE. EVEN
THOUGH SHEFFIELD MAY WELL HAVE ACTUALLY INTENDED TO BE BOUND BY ALL THE
TERMS AND CONDITIONS OF THE SOLICITATION, THE DETERMINING FACTOR IS NOT
WHETHER THE BIDDER INTENDS TO BE BOUND, BUT WHETHER THIS INTENTION IS
APPARENT FROM THE BID AS SUBMITTED. THE FAILURE OF A BID TO COMPLY WITH
A MATERIAL REQUIREMENT WILL VITIATE THE BID. 42 COMP. GEN. 502 (1963).
IT HAS BEEN THE CONSISTENT POSITION OF THIS OFFICE THAT THE
RESPONSIVENESS OF A BID, THAT IS, THE BIDDER'S INTENTION TO COMPLY WITH
ALL IFB SPECIFICATIONS, MUST BE DETERMINED FROM THE FACE OF THE BID
ITSELF. B-176699, NOVEMBER 30, 1972. TO ALLOW A BIDDER AN OPPORTUNITY
TO CLARIFY OR ALTER HIS BID IN ORDER TO MAKE IT RESPONSIVE WOULD BE
TANTAMOUNT TO PERMITTING THE SUBMISSION OF A SECOND BID.
40 COMP. GEN. 432 (1961). THEREFORE, THE REJECTION OF SHEFFIELD'S
BID WAS REQUIRED UNDER THE CIRCUMSTANCES AND THE AGENCY WAS UNDER NO
OBLIGATION TO ISSUE EITHER AN ULTIMATUM OR COMPLIANCE DEADLINE IN ORDER
TO AFFORD THE PROTESTER THE OPPORTUNITY TO CLARIFY OR CHANGE ITS BID.
IN REGARD TO THE AGENCY'S REQUIREMENT FOR POWER SPUDS (SPUD ENGINE),
OUR OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THE PROCURING
ACTIVITY HAS THE PRIMARY RESPONSIBILITY FOR DRAFTING SPECIFICATIONS
WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT, AS WELL AS THE
RESPONSIBILITY OF DETERMINING WHETHER THE PRODUCT OFFERED MEETS THE
SPECIFICATIONS. 44 COMP. GEN. 302 (1964). IN THE ABSENCE OF EVIDENCE
CLEARLY INDICATING THAT THE SPECIFICATIONS AS WRITTEN, OR THE PRODUCT
BEING OFFERED, DO NOT REFLECT THOSE NEEDS, OUR OFFICE WILL NOT OBJECT
THERETO. B-175493, APRIL 20, 1972. WE ALSO RECOGNIZE THAT GOVERNMENT
PROCUREMENT OFFICIALS WHO ARE FAMILIAR WITH THE CONDITIONS UNDER WHICH
EQUIPMENT WILL BE USED, AND HAVE HAD PAST EXPERIENCE IN THE USE OF
SIMILAR EQUIPMENT, ARE GENERALLY IN THE BEST POSITION TO KNOW THE
GOVERNMENT'S NEEDS AND BEST ABLE TO DRAFT APPROPRIATE SPECIFICATIONS.
IN THE INSTANT CASE IT IS THE CONSIDERED OPINION OF TECHNICAL PERSONNEL
OF THE CORPS OF ENGINEERS THAT SHEFFIELD'S PROPOSED EQUIPMENT DID NOT
COMPLY WITH MATERIAL REQUIREMENTS OF THE INVITATION. UNDER THE
CIRCUMSTANCES, WE MUST AGREE WITH THE CONCLUSIONS OF THE CONTRACTING
AGENCY, AND WITH ITS ACTION IN REJECTING SHEFFIELD'S BID.
FINALLY, THE PROTESTER ALLEGES THAT PRIOR TO THE SUBMISSION OF BIDS,
IT CONSULTED WITH AN EMPLOYEE OF THE ARMY CORPS OF ENGINEERS IN BUFFALO
(JAMES R. BRADE) REGARDING THE NEED FOR FURNISHING THE SPECIFIED POWER
SPUDS AND WAS TOLD TO BID ON THE PROCUREMENT REGARDLESS OF THE FACT THAT
ITS DERRICKBOAT WAS NOT EQUIPPED WITH THE REQUIRED "SPUD ENGINE."
HOWEVER, WE HAVE BEEN ADVISED BY THE ARMY THAT, CONTRARY TO SHEFFIELD'S
REITERATION OF THE ABOVE CONVERSATION, THE PROTESTER WAS INFORMED BY MR.
BRADE THAT THE REQUIREMENT FOR THE SPUD ENGINE WAS EXTREMELY IMPORTANT
BUT THAT SINCE MR. BRADE WAS NOT A CONTRACTING OFFICER REPRESENTATIVE
AND DID NOT POSSESS ANY CONTRACTING AUTHORITY, THE PROTESTER WAS
INFORMED THAT IT COULD SUBMIT A BID IF IT SO DESIRED. BASED ON THE
REPORTED FACTS, WE DO NOT BELIEVE THAT THE PROTESTER HAD ANY BASIS FOR
CONCLUDING THAT POWER SPUDS WERE NOT A MATERIAL REQUIREMENT OF THE
SOLICITATION. IN ANY EVENT, PARAGRAPH 3, EXPLANATION TO OFFERORS, IN
STANDARD FORM (SF) 33A OF THE SUBJECT IFB SPECIFICALLY PROVIDED THAT
EXPLANATIONS CONCERNING THE MEANING OR INTERPRETATION OF THE
SOLICITATION MUST BE REQUESTED IN WRITING AND THAT ORAL EXPLANATIONS OR
INSTRUCTIONS GIVEN BEFORE THE AWARD OF THE CONTRACT WOULD NOT BE
BINDING.
IN VIEW OF THE FOREGOING, SHEFFIELD'S PROTEST IS DENIED.
B-181491, AUG 19, 1974
HEADNOTES-UNAVAILABLE
COST OF LIVING COUNCIL REMOVAL OF PRICE CONTROLS ON ZINC RESULTING IN
GSA CONTRACTOR HAVING TO PAY GSA MORE FOR ZINC UNDER CONTRACT PAYMENT
FORMULA THAN IT WAS ABLE TO CHARGE ITS CUSTOMERS CREATES NO LEGAL
AUTHORITY FOR RELIEF TO CONTRACTOR FOR LOSSES SUFFERED UNDER CONTRACT
FORMULA, SINCE REMOVAL OF PRICE CONTROLS IS SOVEREIGN ACT AND GOVERNMENT
IS NOT LIABLE FOR CONSEQUENCES OF ITS SOVEREIGN ACTS; AND IN ABSENCE OF
AMBIGUITY OR FORFEITURE OF CONTRACTUAL RIGHTS BY CONDUCT, CONTRACT MUST
BE ENFORCED AS WRITTEN.
NEW JERSEY ZINC COMPANY:
NEW JERSEY ZINC COMPANY (NJZ) PRESENTS TO OUR OFFICE A CLAIM
REQUESTING CREDIT FOR CERTAIN LOSSES SUFFERED UNDER A CONTRACT WITH THE
UNITED STATES. NJZ ENTERED INTO CONTRACT GS-00-DS/(S)-22183 AS OF APRIL
1, 1972, WITH THE UNITED STATES GOVERNMENT ACTING THROUGH THE
ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION (GSA), FOR THE PURCHASE
AND DISPOSAL OF EXCESS STOCKPILE ZINC. NJZ ALLEGES THAT AS A RESULT OF
THE COST OF LIVING COUNCIL'S (COLC) ACTION IN EXEMPTING ZINC METAL FROM
PRICE CONTROLS DURING DECEMBER 1973, IT INCURRED A SUBSTANTIAL FINANCIAL
LOSS FROM A PECULIAR SITUATION THAT WAS NOT CONTEMPLATED BY THE
CONTRACT.
UNDER THE CONTRACT IN QUESTION , NJZ COMMITTED ITSELF TO THE PURCHASE
OF CERTAIN QUANTITIES OF THE STOCKPILE EXCESS OVER A SPECIFIED PERIOD OF
TIME. ARTICLE II, SECTION 5, OF THE CONTRACT SET OUT THE MANNER IN
WHICH THE PURCHASE PRICE OF THE ZINC WAS TO BE DETERMINED. PURCHASES OF
THE EXCESS ZINC FOR DIRECT SHIPMENT TO CONSUMERS OR WHICH WOULD NOT BE
PROCESSED AT ITS (NJZ) PLANTS WERE TO BE PRICED AT THE AVERAGE DELIVERED
DOMESTIC PRICE FOR PRIME WESTERN GRADE ZINC AS PUBLISHED IN METALS WEEK
FOR THE MONTH IN WHICH SHIPMENT WAS MADE, LESS CERTAIN UNIFORM
ALLOWANCES AS SET FORTH IN PARAGRAPH 5(F) OF ARTICLE II, PLUS THE
AMOUNT, IF ANY, BY WHICH THE BUYER'S (NJZ) REALIZED PRICE (BASED ON THE
INVOICE TO ITS CUSTOMERS FOR SUCH DIRECT SHIPMENTS) EXCEEDED THE ABOVE
DEFINED PUBLISHED AVERAGE PRICE. PURCHASES OF EXCESS ZINC WHICH WERE TO
BE SHIPPED TO NJZ'S PLANTS FOR REMELTING AND/OR REFINING WERE TO BE
PRICED AT THE AVERAGE DELIVERED DOMESTIC PRICE FOR PRIME WESTERN GRADE
ZINC AS PUBLISHED IN METALS WEEK FOR THE MONTH FOLLOWING THE MONTH IN
WHICH SHIPMENT WAS MADE, AND SUBJECT TO THE SAME ADJUSTMENTS AS STATED
ABOVE.
DURING THE MONTH OF NOVEMBER 1973, NJZ RECEIVED FOR PROCESSING
3,644,454 POUNDS OF GSA METAL. PURSUANT TO COMPUTATIONS MADE BY NJZ, IT
WAS DETERMINED THAT AT LEAST, 3,254,970 POUNDS OF THE GSA METAL RECEIVED
IN NOVEMBER WAS PROCESSED AND SHIPPED FROM ITS PLANT IN THAT MONTH AT
THE METAL PRICE IN EFFECT FOR NOVEMBER AND EARLY DECEMBER. PURSUANT TO
ARTICLE II, SECTION 5(B), OF THE CONTRACT, THE PRICE THAT NJZ WAS
REQUIRED TO PAY GSA WOULD BE BASED ON THE DECEMBER 1973 AVERAGE
DELIVERED DOMESTIC PRICE FOR PRIME WESTERN GRADE ZINC AS PUBLISHED IN
METAL WEEK. HOWEVER, THE PRICE THAT NJZ WAS ABLE TO CHARGE ITS
CUSTOMERS FOR THE NOVEMBER DELIVERY WAS THE PRICE AS DETERMINED BY THE
COLC FOR NOVEMBER 1973.
HOWEVER, EXEMPTION OF ZINC METAL FROM PRICE CONTROLS ON DECEMBER 6,
1973, CAUSED AN INCREASE IN THE AVERAGE PRICE OF ZINC TO 27.365 CENTS IN
DECEMBER FROM 20.353 CENTS PER POUND IN NOVEMBER. AS A RESULT, NJZ WAS
REQUIRED BY GSA TO PAY THE HIGHER DECEMBER AVERAGE PRICES FOR ZINC
PURCHASED UNDER THE CONTRACT WHEREAS ITS REALIZED PRICES WERE BASED UPON
ACTUAL SALES MADE AT THE LOWER CONTROLLED PRICES FOR NOVEMBER.
CONSEQUENTLY, NJZ PAID GSA MORE FOR THE ZINC THAN IT RECEIVED FROM ITS
SALE CAUSING IT TO SUFFER A SUBSTANTIAL LOSS.
THEREFORE, NJZ CONTENDS THAT IT SHOULD BE MADE WHOLE AS A RESULT OF
THE ACTION TAKEN BY THE COLC. NJZ STATES THAT SINCE THE PURPOSE OF THE
ZINC DISPOSAL PROGRAM WAS TO ENABLE THE GOVERNMENT TO DISPOSE OF ITS
EXCESS STOCKPILE OF ZINC THROUGH NORMAL MARKETING CHANNELS WITHOUT
DISRUPTING THE MARKET, AND NOT TO ENABLE THE GOVERNMENT TO RECEIVE A
WINDFALL PROFIT WHEN PRICE CONTROLS WERE LIFTED, IT SHOULD NOT BE MADE
TO BEAR THE BURDEN OF THE RISK OF LOSS FROM MARKET FLUCTUATIONS.
GSA, ON THE OTHER HAND, CONTENDS THAT RELIEF SHOULD BE DENIED.
BASING ITS ARGUMENT ON THE CONTRACT CLAUSES ABOVE CITED, GSA STATES THAT
THE MONTH DELAY IN FIXING THE PRICE IN THE CASE WHERE METAL IS SHIPPED
TO THE BUYER'S PLANT FOR REPROCESSING WAS DESIGNED TO GIVE NJZ, AND
OTHERS, ADEQUATE TIME TO HAVE PROCESSED ZINC IN THEIR PLANTS AVAILABLE
FOR SALE AT THE TIME THE PRICE IS FIXED. IT IS GSA'S POSITION THAT:
"*** APPARENTLY, NJZ DECIDED IT WOULD BE IN THE COMPANY'S BEST
INTERESTS TO ACCELERATE THE PROCESSING OF THIS ZINC (THE ZINC DELIVERED,
PROCESSED AND SHIPPED IN NOVEMBER AND EARLY DECEMBER) SO AS TO BE ABLE
TO MAKE DELIVERY TO ITS CUSTOMERS IN NOVEMBER AND EARLY DECEMBER. IN
MAKING THIS BUSINESS JUDGMENT NJZ INCURRED THE RISK THAT THE PRICE OF
ZINC MIGHT RISE IN DECEMBER LEAVING NJZ WITH RECEIPTS BASED ON NOVEMBER
PRICES AND PAYMENTS DUE GSA BASED ON THE AVERAGE OF DECEMBER PRICES.
CONVERSELY NJZ CREATED THE OPPORTUNITY FOR PROFIT IN THE EVENT
DECEMBER PRICE AVERAGES SHOULD HAVE DECLINED.
"THE BUSINESS JUDGMENT TO SERVE ITS CUSTOMERS THROUGH RAPID
PROCESSING AND SALE OF THE ZINC WAS SPECULATIVE AND IN THE END HAS
PROVEN TO BE AN IMPROVIDENT BUSINESS DECISION.
"CONTRARY TO WHAT IS CLAIMED BY NJZ, HAD PRICES OF ZINC BEEN ROLLED
BACK IN DECEMBER, NJZ WOULD HAVE PROFITED FROM ITS SALES IN NOVEMBER AND
THE GOVERNMENT WOULD HAVE HAD NO CONTRACTUAL BASIS TO RECOVER IT. THE
CONTRACT PROVIDES IN PARAGRAPH 5(B) OF ARTICLE II THAT NJZ MUST PAY TO
THE GOVERNMENT ANY AMOUNT BY WHICH ITS REALIZED PRICE EXCEEDS THE
PUBLISHED AVERAGE PRICE. THE DEFINITION OF 'REALIZED PRICE' IS 'THE
WEIGHTED AVERAGE PRICE OF ALL ITS INVOICED SALES OF SLAB ZINC
... FOR THE SAME PERIOD USED TO DETERMINE THE ABOVE DEFINED PUBLISHED
AVERAGE PRICE.' THIS MEANS THAT NJZ WOULD HAVE BEEN OBLIGED TO PAY THE
GOVERNMENT FOR ANY PREMIUMS RECEIVED AS COMPUTED ON DECEMBER SALES ONLY.
NOVEMBER SALES ARE NOT INCLUDED IN 'THE SAME PERIOD USED TO DETERMINE
THE ...
PUBLISHED AVERAGE PRICE.' SPECIFIC LANGUAGE AUTHORIZING THE
GOVERNMENT TO RECOUP THIS PROFIT OR REIMBURSE NJZ FOR ANY LOSS IS
NOTICEABLY ABSENT."
THEREFORE, IT IS GSA'S BELIEF THAT NJZ WOULD HAVE THE GOVERNMENT BEAR
THE COSTS OF THE RISK IT ASSUMED IN ITS BUSINESS TRANSACTIONS, AS NJZ
ATTEMPTS TO SHIFT THE RESPONSIBILITY FOR THE LOSS TO THE COLC.
IN OUR OPINION, THE FACT THAT THE COLC REMOVED THE PRICE CONTROLS ON
ZINC, ALLOWING THE PRODUCERS TO RAISE THEIR PRICES, HAS NO EFFECT ON
NJZ'S OBLIGATIONS UNDER THE CONTRACT. OUR OFFICE HAS REPEATEDLY HELD
THAT WHEN THE GOVERNMENT ACTS A SOVEREIGN, IT IS NOT LIABLE TO A
CONTRACTOR FOR ITS SOVEREIGN ACTS. B-179997, NOVEMBER 14, 1973;
B-179309, OCTOBER 2, 1973. MOREOVER, WE HAVE STATE THAT ECONOMIC
ACTIONS TAKEN BY THE COLC ARE ACTIONS ATTRIBUTABLE TO THE GOVERNMENT IN
ITS SOVEREIGN CAPACITY. B-179997, SUPRA; B-175674, MAY 30, 1972.
THEREFORE, THE SUDDEN MARKET PRICE FLUCTUATION RESULTING FROM THE COLC
DECISION TO REMOVE THE PRICE CONTROLS ON ZINC DOES NOT RELIEVE NJZ FROM
ITS OBLIGATIONS TO THE GOVERNMENT UNDER ITS CONTRACT.
AS WAS STATED IN 53 COMP. GEN. 157 (1973).
"*** IT IS WELL SETTLED THAT THE GOVERNMENT IS NOT LIABLE AS A
CONTRACTOR FOR THE CONSEQUENCES OF ITS ACTS AS A SOVEREIGN. SEE
HOROWITZ V. UNITED STATES, 267 U.S. 458 (1925); THE SUNSWICK CORP. V.
UNITED STATES, 75 F. SUPP. 221, 109 CT. CL. 772 (1948). ALSO, WHERE A
GOVERNMENT CONTRACT CONTAINS AN EXPRESS STIPULATION AS TO THE AMOUNT OF
COMPENSATION TO BE PAID, AND NO PROVISION IS MADE FOR ANY INCREASE IN
THE EVENT PERFORMANCE BECOMES MORE EXPENSIVE OR DIFFICULT, THE FACT THAT
THE COST OF PERFORMANCE IS INCREASED BY FACTORS WHICH DO NOT CONSTITUTE
UNDUE INTERFERENCE BY THE GOVERNMENT AS A CONTRACTOR DOES NOT ENTITLE
THE CONTRACTOR TO ADDITIONAL COMPENSATION. SEE B-175674, SUPRA, AND
CASES CITED THEREIN. AS WAS STATED IN PENN BRIDGE CO. V. UNITED STATES,
59 CT. CL. 892, 896 (1924) - -
"*** CONTRACTUAL RIGHTS ONCE FIXED IN A PROPER CONTRACT EXECUTED BY
AUTHORITY ARE INVIOLATE. THEY MAY BE FORFEITED BY ONE PARTY OR THE
OTHER, CONSTRUCTION IS PERMISSIBLE IF THE TERMS ARE AMBIGUOUS, BUT IN
THE ABSENCE OF AMBIGUITY OR FORFEITURE OF RIGHTS BY CONDUCT, SUCH A
CONTRACT CANNOT BUT BE ENFORCED AS WRITTEN.
CONSEQUENTLY, THE COLC'S DECISION TO EXEMPT ZINC FROM PRICE CONTROLS
WAS A SOVEREIGN ACT AND THEREFORE AFFORDS NO BASIS TO ESTABLISH
LIABILITY. ACCORDINGLY, WE FIND NO LEGAL AUTHORITY FOR GRANTING NJZ
RELIEF FOR LOSSES SUFFERED UNDER THE CONTRACT PAYMENT FORMULA.
B-181737, AUG 19, 1974
HEADNOTES-UNAVAILABLE
EMPLOYEE WHO TRANSFERRED FROM WASHINGTON, D.C., TO LOS ANGELES,
CALIFORNIA, IN OCTOBER 1971 AND CLAIMED $425 AS EXPENSES INCURRED FOR
SETTLEMENT OF UNEXPIRED LEASE BUT WHO LOST LEASE AND CANNOT LOCATE
LANDLORD TO OBTAIN COPY OF LEASE, MAY NOT BE REIMBURSED SINCE SHE HAS
NOT SUBMITTED DOCUMENTATION REQUIRED BY SECTION 4.2H OF OMB CIRCULAR NO.
A-56 OR ACCEPTABLE ALTERNATE EVIDENCE THAT SHE WAS REQUIRED 'TO PAY
FORFEITURE.
CAROL A. DENTZ - SETTLEMENT OF UNEXPIRED LEASE - DOCUMENTATION:
THIS DECISION INVOLVES THE PROPRIETY OF CERTIFYING FOR PAYMENT THE
TRAVEL VOUCHER OF MRS. CAROL A. DENTZ IN THE AMOUNT OF $425 FOR
EXPENSES INCURRED IN CONNECTION WITH THE SETTLEMENT OF AN UNEXPIRED
LEASE AT THE OLD OFFICIAL DUTY STATION UPON HER TRANSFER FROM WASHINGTON
D.C., TO LOS ANGELES, CALIFORNIA, IN OCTOBER 1971 IN THE ABSENCE OF A
COPY OF THE LEASE.
THE ONLY EVIDENCE SUBMITTED IN SUPPORT OF THE CLAIM IS THE STATEMENT
OF MRS. DENTZ ON THE BACK OF THE TRAVEL VOUCHER WHICH EXPLAINS THAT THE
CLAIM FOR $425 CONSTITUTES THE FORFEITURE OF 1 MONTH'S RENT. THE
EXPLANATION FOR NOT SUBMITTING ANY CORROBORATIVE EVIDENCE IS THAT THE
COPY OF THE LEASE WAS LOST IN THE MOVE AND THAT THE LANDLORD HIMSELF HAS
SINCE THEN MOVED AND HIS WHEREABOUTS IS UNKNOWN. THE AGENCY STATES IT
HAS ATTEMPTED TO LOCATE THE LANDLORD BUT ITS EFFORTS LIKEWISE HAVE BEEN
UNSUCCESSFUL.
THE APPLICABLE REGULATION AT THE TIME OF MRS. DENTZ' TRANSFER WAS
OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED, AUGUST 17,
1971, WHICH PROVIDES, AMONG OTHER THINGS, AS FOLLOWS IN SECTION 4.2:
"H. SETTLEMENT OF AN UNEXPIRED LEASE. EXPENSES INCURRED FOR
SETTLING AN UNEXPIRED LEASE (INCLUDING MONTH-TO-MONTH RENTAL) ON
RESIDENCE QUARTERS OCCUPIED BY THE EMPLOYEE AT THE OLD OFFICIAL STATION
MAY INCLUDE BROKER'S FEES FOR OBTAINING A SUBLEASE OR CHARGES FOR
ADVERTISING AN UNEXPIRED LEASE. SUCH EXPENSES ARE REIMBURSABLE WHEN (1)
APPLICABLE LAWS OR THE TERMS OF THE LEASE PROVIDE FOR PAYMENT OF
SETTLEMENT EXPENSES, (2) SUCH EXPENSES CANNOT BE AVOIDED BY SUBLEASE OR
OTHER ARRANGEMENT, (3) THE EMPLOYEE HAS NOT CONTRIBUTED TO THE EXPENSE
BY FAILING TO GIVE APPROPRIATE LEASE TERMINATION NOTICE PROMPTLY AFTER
HE HAS DEFINITE KNOWLEDGE OF THE PROPOSED TRANSFER, AND (4) THE BROKER'S
FEES OR ADVERTISING CHARGES ARE NOT IN EXCESS OF THOSE CUSTOMARILY
CHARGED FOR COMPARABLE SERVICES IN THAT LOCALITY. ITEMIZATION OF THESE
EXPENSES IS REQUIRED AND THE TOTAL AMOUNT WILL BE ENTERED ON AN
APPROPRIATE TRAVEL VOUCHER. THIS VOUCHER MAY BE SUBMITTED SEPARATELY OR
WITH A CLAIM THAT IS TO BE MADE FOR EXPENSES INCIDENT TO THE PURCHASE OF
A DWELLING. EACH ITEM MUST BE SUPPORTED BY DOCUMENTATION SHOWING THAT
THE EXPENSE WAS IN FACT INCURRED AND PAID BY THE EMPLOYEE."
THE NECESSARY DOCUMENTATION REQUIRED BY THIS SECTION HAS NOT BEEN
FURNISHED TO THE AUTHORIZING OFFICIALS OR TO THIS OFFICE. SINCE THE
REGULATION IS STATUTORY IN NATURE AND HAS THE FORCE AND EFFECT OF LAW,
THIS OFFICE IS WITHOUT POWER TO WAIVE ITS PROVISIONS. THE REGULATION
CLEARLY REQUIRES THAT DOCUMENTATION BE SUBMITTED THAT EXPENSES INCIDENT
TO LEASE TERMINATION WERE INCURRED, THAT SUCH EXPENSES COULD NOT HAVE
BEEN AVOIDED BY SUBLETTING, ETC. SUCH DOCUMENTATION HAS NOT BEEN
SUBMITTED. MOREOVER, THERE IS NO EVIDENCE THAT TIMELY EFFORTS WERE MADE
BY MRS. DENTZ TO OBTAIN ALTERNATE EVIDENCE IN PLACE OF THE LOST LEASE.
ACCORDINGLY, WE FIND NO BASIS UPON WHICH HER CLAIM COULD BE PAID AND
THE TRAVEL VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.
B-181976, AUG 19, 1974
HEADNOTES-UNAVAILABLE
FIRM WHICH PROTESTS DETERMINATION OF AIR FORCE THAT IT DID NOT
QUALIFY AS MANUFACTURER UNDER WALSH-HEALEY PUBLIC CONTRACTS ACT, 41
U.S.C. 35, IS ADVISED THAT SUCH DETERMINATION MAY NOT BE DISTURBED BY
GAO BECAUSE RESPONSIBILITY OF DETERMINING WHETHER BIDDER IS QUALIFIED AS
REGULAR DEALER OR MANUFACTURER RESTS IN FIRST INSTANCE WITH CONTRACTING
AGENCY AND IN ACCORDANCE WITH ACT SUCH DETERMINATION IS SUBJECT TO
REVIEW BY SECRETARY OF LABOR AND NOT BY GAO.
LONE STAR AIR PARTS, INCORPORATED:
LONE STAR AIR PARTS, INCORPORATED, PROTESTS THE DETERMINATION BY SAN
ANTONIO AIR MATERIEL, AREA, KELLY AIR FORCE BASE, TEXAS, THAT ITS FIRM
DID NOT QUALIFY AS A MANUFACTURER UNDER THE WALSH-HEALEY PUBLIC
CONTRACTS ACT, 41 U.S.C. 35.
THE WALSH-HEALEY ACT VESTS IN THE SECRETARY OF LABOR THE AUTHORITY TO
MAKE FINAL ADMINISTRATIVE DETERMINATIONS REGARDING THE INTERPRETATION OF
SUCH TERMS AS "REGULAR DEALER" AND "MANUFACTURER" AS USED IN THE ACT.
HOWEVER, THE RESPONSIBILITY OF DETERMINING WHETHER A BIDDER IS QUALIFIED
AS A REGULAR DEALER OR MANUFACTURER RESTS IN THE FIRST INSTANCE WITH THE
CONTRACTING AGENCY AND IS SUBJECT TO REVIEW BY THE SECRETARY OF LABOR
AND NOT BY THE GENERAL ACCOUNTING OFFICE. B-176738, AUGUST 30, 1972;
B-180384, JANUARY 21, 1974.
IN VIEW THEREOF, THE DETERMINATION BY THE AIR FORCE THAT THE FIRM DID
NOT QUALIFY AS A MANUFACTURER UNDER THE WALSH-HEALEY ACT MAY NOT BE
DISTURBED BY OUR OFFICE.
B-180248, AUG 16, 1974
HEADNOTES-UNAVAILABLE
1. DECISION BY CONTRACTING AGENCY TO CANCEL RFP FOR DEVELOPMENT OF
COMPUTER SOFTWARE BECAUSE SOLE OFFER EXCEEDED AVAILABLE FUNDS AND TO
ORDER SERVICES FOR PERFORMANCE WITHIN BUDGETARY AMOUNT FROM GSA, WHICH
ACCEPTED ORDER AND UTILIZED SECTION 8(A) INDEFINITE REQUIREMENTS
CONTRACT, IS NOT OBJECTIONABLE, SINCE IT IS SUFFICIENT REASON TO REJECT
OFFER WHERE FUNDS ARE NOT AVAILABLE FOR CONTRACT OBLIGATION AND 8(A)
CONTRACT NOT FOR SPECIFIC SERVICES CONTRACTING AGENCY LET TO COMPETITION
DOES NOT VIOLATE FPR 1-1.713-2(E) GENERAL PROVISION THAT 8(A) CONTRACTS
NOT BE CONSIDERED FOR SPECIFIC WORK SYNOPSIZED IN COMMERCE BUSINESS
DAILY OR SOLICITED FROM INDUSTRY.
2. CLAIM FOR PROPOSAL PREPARATION COSTS FOR OFFER REJECTED BECAUSE
IT EXCEEDED AVAILABLE FUNDS IS DENIED SINCE THERE IS NO INDICATION IN
RECORD THAT OFFER WAS NOT SOLICITED IN GOOD FAITH OR THAT IT WAS NOT
CONSIDERED FAIRLY AND HONESTLY FOR AWARD.
OCEAN DATA SYSTEMS, INC.:
REQUEST FOR PROPOSALS (RFP) N62306-74-R-0009, ISSUED AUGUST 7, 1973,
BY THE NAVAL OCEANOGRAPHIC OFFICE (NAVOCEANO), WASHINGTON, D.C.,
SOLICITED OFFERS ON A FIXED-PRICE BASIS FOR THE PREPARATION OF AN
APPLICATION PROGRAM AND SYSTEM SOFTWARE FOR THE HYSURCH SHIPBOARD
COLLECTION EQUIPMENT. THE RFP WAS SENT TO SEVEN FIRMS. IN ADDITION, IT
WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY, WHICH RESULTED IN 21
ADDITIONAL COMPANIES REQUESTING THE RFP. OCEAN DATA SYSTEMS, INC.
(ODSI), WAS THE ONLY COMPANY TO SUBMIT ANY PROPOSALS: ONE IN THE AMOUNT
OF $322,349, AND AN ALTERNATE IN THE AMOUNT OF $245,034.
ALTHOUGH ODSI'S PROPOSAL WAS DETERMINED TO BE TECHNICALLY ACCEPTABLE,
ITS PRICE EXCEEDED THE $100,000 IN FUNDS WHICH WERE AVAILABLE FOR THE
PROCUREMENT. THE NEGOTIATION TEAM CONCLUDED THAT NEGOTIATIONS SHOULD BE
HELD WITH ODSI SINCE THE TEAM THOUGHT THERE WERE SEVERAL AREAS OF COST
OPEN TO LARGE REDUCTIONS. NEGOTIATIONS WERE HELD WITH ODSI ON OCTOBER
11, 1973, AND THE PROCURING ACTIVITY VERIFIED CERTAIN ITEMS OF
INFORMATION BY A TELEPHONE CALL TO ODSI ON OCTOBER 24, 1973. ON THE
LATTER DATE, ODSI SUBMITTED ITS REVISED PROPOSAL IN THE AMOUNT OF
$195,153. BY TELEPHONE AND BY LETTER OF DECEMBER 11, 1973, FROM THE
CONTRACTING OFFICER, ODSI WAS ADVISED THAT THE RFP WAS CANCELED BECAUSE
THE PROPOSAL EXCEEDED THE BUDGET FOR THE PROJECT AND THAT THE GOVERNMENT
WOULD PURSUE THE TASK WITH AVAILABLE IN-HOUSE RESOURCES.
THE HYSURCH PROGRAM MANAGER HAD ANTICIPATED THAT NEGOTIATIONS WITH
ODSI MIGHT NOT RESULT IN A SUFFICIENT REDUCTION IN PRICE TO COME WITHIN
THE AMOUNT OF AVAILABLE FUNDS. CONSEQUENTLY, ON OCTOBER 5, 1973,
GENERAL SERVICES ADMINISTRATION (GSA) REGION 4 IN HUNTSVILLE, ALABAMA,
WAS CONTACTED TO ASCERTAIN WHETHER IT HAD THE CAPABILITY TO DEVELOP THE
REQUIRED SOFTWARE IN ACCORDANCE WITH THE NAVOCEANO SPECIFICATIONS. ON
NOVEMBER 9, 1973, REGION 4 ADVISED THAT IT COULD PROVIDE THE SOFTWARE
WITHIN THE $100,000 BUDGET. ON NOVEMBER 13, 1973, NAVOCEANO ISSUED A
PROJECT ORDER IN THE AMOUNT OF $90,000 TO THE FEDERAL DATA PROCESSING
CENTER (FDPC), GSA REGION 4. ON NOVEMBER 30, 1973, THE PROJECT ORDER
WAS ACCEPTED BY GSA REGION 4.
ON OCTOBER 17, 1973, THE FEDERAL SUPPLY SERVICE, GSA, AWARDED AN
INDEFINITE REQUIREMENTS TERM SERVICE CONTRACT TO THE SMALL BUSINESS
ADMINISTRATION (SBA) FOR TECHNICAL SUPPORT SERVICES FOR THE FDPC,
HUNTSVILLE, ALABAMA, FROM NOVEMBER 1, 1973, THROUGH OCTOBER 31, 1974. A
SUBCONTRACT UNDER THE ABOVE-REFERENCED CONTRACT WAS AWARDED ON OCTOBER
17, 1973, BY SBA TO D.P. ASSOCIATES, INC. (DPAI), A SECTION 8(A)
CONTRACTOR. THE WORK UNDER THE PROJECT ORDER SUBMITTED BY NAVOCEANO WAS
PERFORMED BY DPAI UNDER THE SUBCONTRACT. THE WORK FOR NAVOCEANO
REPRESENTS ONLY A SMALL PORTION OF THE ENTIRE SUBCONTRACT, THE TOTAL
ESTIMATED AMOUNT OF THE SUBCONTRACT BEING $1,364,093.35.
PRIOR TO THE ISSUANCE OF THE PROJECT ORDER TO FDPC, THE HYSURCH
PROJECT MANAGER ALSO SUBMITTED A REQUEST FOR ADP SERVICES, DATED OCTOBER
25, 1973, TO GSA REGION 3 TO HAVE THE HYSURCH PROJECT WORK "PERFORMED BY
REGION 3 PERSONNEL (LOCALLY)." ON NOVEMBER 6, 1973 THE ASSISTANT ADP
COORDINATOR, GSA REGION 3, INFORMED NAVOCEANO THAT THERE WERE "NO KNOWN
GOVERNMENT SOURCES AVAILABLE AT THIS TIME" WHICH COULD MEET THE REQUEST.
BY LETTER DATED APRIL 3, 1974, AND PREVIOUS CORRESPONDENCE, COUNSEL
FOR ODSI PROTESTED THE REFUSAL OF NAVOCEANO TO MAKE AN AWARD UNDER THE
ABOVE-REFERENCED RFP. COUNSEL REQUESTED OUR OFFICE TO INSTRUCT THE
DEPARTMENT OF THE NAVY AND GSA TO CANCEL WHATEVER ARRANGEMENTS HAD BEEN
MADE WITH DPAI AND TO AWARD A CONTRACT TO ODSI PURSUANT TO THE TERMS OF
THE SOLICITATION. IN THE ALTERNATIVE, A CLAIM WAS MADE FOR PROPOSAL
PREPARATION EXPENSES IN THE AMOUNT OF $5,277.
IN SUPPORT OF THE PROTEST AND CLAIM, IT IS CONTENDED (1) THAT
NAVOCEANO AND GSA CONSPIRED IN BAD FAITH AND CONTRARY TO LAW TO SECRETLY
WITHDRAW THE REQUIREMENTS IN THE SOLICITATION AND TO AWARD THE WORK
COVERED BY THE SOLICITATION TO AN "8A" FIRM THAT DID NOT RESPOND TO THE
SOLICITATION, AND THAT THE WORK WILL BE PERFORMED OUTSIDE OF THE AREA OF
PERFORMANCE INDICATED IN THE RFP; (2) THAT THE AWARD OF THE WORK TO THE
"8A" FIRM WAS A DELIBERATE CIRCUMVENTION OF REGULATIONS AND POLICY
GOVERNING THE SELECTION OF "8A" CONTRACTORS; (3) THAT THE NAVY WILL
EVENTUALLY SPEND FAR IN EXCESS OF ODSI'S OFFERED PRICE, AND THAT
CONSEQUENTLY, THE "EXCESSIVE PRICE" ARGUMENT OF THE NAVY IS SPURIOUS,
AND, IN ADDITION, THE FACT THAT GOVERNMENT-FURNISHED EQUIPMENT HAS BEEN
MOVED TO HUNTSVILLE IS A FURTHER INDICATION THAT THE COST ESTIMATES OF
NAVOCEANO ARE DEVOID OF MERIT; AND (4) THAT ODSI'S PROPRIETARY PROPOSAL
MAY HAVE BEEN DISCLOSED TO DPAI.
AS INDICATED ABOVE, NAVOCEANO DECIDED TO UTILIZE THE AUSPICES OF GSA
BECAUSE IT WAS DETERMINED THAT THE ODSI OFFERED PRICE FOR THE PROJECT
EXCEEDED THE NAVOCEANO BUDGET AND GSA INDICATED THAT IT COULD MEET THE
REQUIREMENTS WITHIN THE BUDGET. PARAGRAPH 10(B) OF THE RFP
"SOLICITATION INSTRUCTIONS AND CONDITIONS" STATED THAT THE GOVERNMENT
RESERVES THE RIGHT TO REJECT ANY OR ALL OFFERS. SECTION 665 OF 31
U.S.C. PROHIBITS EXPENDITURES OF CONTRACT OBLIGATIONS IN EXCESS OF
APPROPRIATED FUNDS OR APPORTIONMENTS OF APPROPRIATIONS MADE TO ACHIEVE
THE MOST EFFECTIVE AND ECONOMICAL USE OF FUNDS. OUR OFFICE HAS HELD
THAT WHERE AN ADMINISTRATIVE AGENCY OF THE GOVERNMENT HAS DETERMINED
THAT FUNDS ARE NOT AVAILABLE FOR CONTRACT OBLIGATION, THAT IS A
SUFFICIENT REASON TO REJECT THE OFFERS RECEIVED AND IT IS NOT FOR OUR
OFFICE TO OBJECT TO THE UNAVAILABILITY OF FUNDS. B-166710, JULY 24,
1969. FURTHER, NAVOCEANO NEGOTIATED WITH ODSI IN AN ATTEMPT TO REDUCE
THE COST OF ITS PROPOSAL WITHIN ACCEPTABLE LIMITS. WE ARE NOT AWARE OF
ANYTHING THAT REQUIRED NAVOCEANO TO INDICATE TO ODSI DURING THOSE
NEGOTIATIONS THAT IT WAS EXPLORING WITH GSA THE POSSIBILITY OF USING ITS
RESOURCES FOR THE PERFORMANCE OF THE WORK IN THE EVENT IT WAS
UNSUCCESSFUL IN ARRIVING AT AN ACCEPTABLE PRICE WITH ODSI. WE ARE
THEREFORE UNABLE TO CONCLUDE THAT NAVOCEANO AND GSA ACTED IN BAD FAITH
IN THE CIRCUMSTANCES. MOREOVER, THE CHANGE OF THE AREA OF CERTAIN
PERFORMANCE AND THE AWARD OF THE WORK TO A FIRM THAT DID NOT RESPOND TO
THE SOLICITATION, BUT WHICH HAD A CONTRACT TO PERFORM SERVICES OF THE
NATURE REQUIRED, WAS NECESSITATED BY THE FACT THAT ODSI WAS UNABLE TO
PERFORM WITHIN THE AGENCY BUDGET AND IS THEREFORE UNOBJECTIONABLE.
FEDERAL PROCUREMENT REGULATIONS (FPR) 1-1.713-2(E) PROVIDES:
"GENERALLY, SECTION 8(A) CONTRACTS BETWEEN A PROCURING AGENCY AND THE
SBA WILL NOT BE CONSIDERED FOR SPECIFIC ITEMS OR WORK AFTER SUCH ITEMS
OR WORK HAVE BEEN SYNOPSIZED IN THE COMMERCE BUSINESS DAILY OR
PUBLICIZED TO OR SOLICITED FROM INDUSTRY."
IT HAS BEEN CONTENDED THAT THE AWARD OF THE 8(A) CONTRACT BY GSA WAS
IN VIOLATION OF THE FOREGOING REGULATION. HOWEVER, SINCE THE REGULATION
IS PREFACED BY THE WORD, "GENERALLY," IT IS APPARENT THAT IT IS NOT
INTENDED TO APPLY IN EVERY SITUATION. FURTHER, THE 8(A) INDEFINITE
REQUIREMENTS CONTRACT IS NOT IN VIOLATION OF THE REGULATION, SINCE IT IS
NOT FOR THE SPECIFIC SERVICES THAT NAVOCEANO LET TO COMPETITION,
ALTHOUGH IT IS BROAD ENOUGH TO PERMIT ORDERING OF THOSE SERVICES UNDER
THE CONTRACT.
WITH RESPECT TO THE CONTENTION THAT THE NAVY WILL SPEND FAR IN EXCESS
OF THE ODSI OFFERED PRICE, WE HAVE ASCERTAINED INFORMALLY THAT, BECAUSE
OF THE LACK OF FUNDS FOR CONTINUATION OF THE PROJECT IN FISCAL YEAR
1975, THE PROJECT ORDER WAS CANCELED ON JUNE 30, 1974, AND WAS REDUCED
BY $24,000. SINCE AT THE TIME THE ODSI PROPOSAL WAS UNDER CONSIDERATION
THE NAVY CONSIDERED THAT THERE WAS ONLY $100,000 AVAILABLE FOR THE
PROCUREMENT, THE DETERMINATION THAT THE ODSI $195,153 PROPOSAL WAS
EXCESSIVE DOES NOT APPEAR TO HAVE BEEN SPURIOUS. FURTHER, THE NAVOCEANO
RFP HAD LISTED CERTAIN GOVERNMENT-FURNISHED EQUIPMENT THAT THE
CONTRACTOR WOULD BE REQUIRED TO USE AT SUITLAND, MARYLAND. THE MOVEMENT
OF THE EQUIPMENT TO HUNTSVILLE AT AN ESTIMATED COST OF $110 IN AN
ATTEMPT TO KEEP TOTAL COSTS AT A MINIMUM IS NOT OBJECTIONABLE.
BOTH THE NAVY AND GSA HAVE DENIED THAT ANY INFORMATION CONCERNING THE
ODSI PROPOSAL WAS DIVULGED TO DPAI. THEREFORE, WE ARE UNABLE TO
CONCLUDE THAT THERE WAS AN IMPROPER DISCLOSURE OF THE ODSI PROPOSAL.
INLAND CONTAINER, INC. V. UNITED STATES, CT. CL. NO. 350-70, MARCH 4,
1974, RELIED UPON BY COUNSEL FOR ODSI HAS NO BEARING ON THE INSTANT
MATTER. IN THE INLAND CASE, THE COURT INDICATED THAT THE PLAINTIFFS
"REQUIREMENTS" CONTRACTS WITH DSA WERE VIOLATED WHEN DSA OBTAINED
CERTAIN OF ITS REQUIREMENTS FROM GSA UNDER REQUISITION. IN THE
IMMEDIATE CASE, NO CONTRACT CAME INTO BEING BETWEEN NAVOCEANO AND ODSI
BECAUSE THE RFP WAS CANCELED. THUS, NO CONTRACT OBLIGATION TO ODSI WAS
BREACHED BY NAVOCEANO ORDERING THE SERVICES FROM GSA.
WITH REGARD TO ODSI'S REQUEST FOR PROPOSAL PREPARATION COSTS, THE
FEDERAL COURTS HAVE RECOGNIZED THAT OFFERORS ARE ENTITLED TO HAVE THEIR
PROPOSALS CONSIDERED FAIRLY AND HONESTLY FOR AWARD AND THAT THE RECOVERY
OF PROPOSAL PREPARATION EXPENSES IS POSSIBLE IF IT CAN BE SHOWN THAT
PROPOSALS WERE NOT SO CONSIDERED. LACK OF GOOD FAITH, ARBITRARINESS OR
CAPRICIOUSNESS MUST BE ESTABLISHED AS A PREREQUISITE TO RECOVERY. SEE
HEYER PRODUCTS COMPANY, INC. V. UNITED STATES, 140 F. SUPP. 409 (CT.
CL. 1956); 177 F. SUPP. 251 (CT. CL. 1959). KECO INDUSTRIES, INC. V.
UNITED STATES, 428 F.2D. 1233 (CT. CL. 1970); CT. CL. 173-69 (FEBRUARY
20, 1974); AND CONTINENTAL BUSINESS ENTERPRISES, INC. V. UNITED
STATES, 452 F.2D. 1016 (CT. CL. 1971). HOWEVER, THERE IS NO INDICATION
IN THE RECORD THAT ODSI'S PROPOSAL WAS NOT SOLICITED IN GOOD FAITH OR
THAT IT WAS NOT CONSIDERED FAIRLY AND HONESTLY FOR AWARD.
ACCORDINGLY, THE PROTEST AND CLAIM FOR PROPOSAL PREPARATION COSTS ARE
DENIED.
B-181167, AUG 16, 1974
HEADNOTES-UNAVAILABLE
1. SINCE TIME LIMITS IN SECTION 20.2 OF GAO'S INTERIM BID PROTEST
PROCEDURES AND STANDARDS REQUIRING THAT PROTESTS BE FILED WITHIN 5 DAYS
OF DATE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN ARE
INTENDED TO PROVIDE AN EFFECTIVE AND EQUITABLE PROCESSING PROCEDURE,
PROTEST FILED 8 MONTHS AFTER THE BASIS OF PROTEST WAS KNOWN OR SHOULD
HAVE BEEN KNOWN IS UNTIMELY AND MAY NOT BE CONSIDERED ON ITS MERITS.
2. MATTERS CONCERNING ADMINISTRATION OF, AND ELIGIBILITY FOR, 8(A)
PROGRAM AS COGNIZABLE BY SBA AND INQUIRIES MUST BE ADDRESSED TO SBA.
CITY MOVING & STORAGE CO., INC.:
THE FEDERAL AVIATION ADMINISTRATION (FAA) COMPETITIVELY ADVERTISED
ITS FISCAL YEAR 1974 REQUIREMENTS FOR FURNITURE AND EQUIPMENT MOVING
SERVICES. BIDS WERE OPENED ON JULY 3, 1973. BY LETTER DATED AUGUST 1,
1973, ALL BIDDERS, INCLUDING CITY MOVING & STORAGE CO., INC. (CITY),
WERE NOTIFIED THAT THE IFB HAD BEEN CANCELED BECAUSE THE REQUIREMENTS
COULD BE SATISFIED BY A DEPARTMENT OF TRANSPORTATION (DOT) CONTRACT FOR
THE SAME SERVICES. DOT CONTRACTED FOR THESE REQUIREMENTS WITH THE SMALL
BUSINESS ADMINISTRATION (SBA) PURSUANT TO SECTION 8(A) OF THE SMALL
BUSINESS ACT INVOLVING FIRMS OWNED BY DISADVANTAGED MINORITIES. SBA
SUBCONTRACTED WITH GREENWOOD TRANSFER & STORAGE CO., INC. (GREENWOOD),
TO PROVIDE THE REQUIRED SERVICES.
BY LETTER DATED MAY 1, 1974, CITY PROTESTED THE AWARD OF THE
SUBCONTRACT TO GREENWOOD. CITY STATES THAT GREENWOOD HAS RECEIVED OTHER
AWARDS FROM SBA SO THAT IT NOW HOLDS SECTION 8(A) CONTRACTS FOR A
MAJORITY OF THE MOVING CONTRACTS FOR GOVERNMENT AGENCIES. CITY NOTES
THAT GREENWOOD ALSO HELD THE PREVIOUS DOT CONTRACT AND REQUESTS THAT
DOT'S MOVING REQUIREMENTS BE COMPETITIVELY ADVERTISED SO THAT ALL SMALL
BUSINESSES MAY COMPETE.
OUR OFFICE HAS BEEN INFORMED BY DOT THAT THE CONTRACT AWARDED BY FAA
TO GREENWOOD EXPRIRED ON JUNE 30, 1973, AND ON JULY 1, 1973, FAA ISSUED
A SMALL PURCHASE ORDER TO GREENWOOD. THIS WORK ORDER EXPIRED ON JULY
24, 1973. IN ADDITION, WE HAVE BEEN INFORMED THAT THE PERIOD OF THE
CONTRACT AWARDED BY DOT TO SBA WAS FROM JULY 1, 1973, THROUGH JUNE 30,
1974. ON APPROXIMATELY JULY 1, 1974, A NEW 8(A) CONTRACT WAS AWARDED TO
SBA AND THE 8(A) CONTRACTOR WHICH WAS AWARDED THE SUBCONTRACT THEREUNDER
WAS NOT GREENWOOD. FURTHERMORE, WE HAVE BEEN ADVISED THAT CITY HAS NOT
APPLIED FOR PARTICIPATION IN THE 8(A) PROGRAM.
SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS
PROVIDES THAT "*** BID PROTESTS SHALL BE FILED NOT LATER THAN 5 WORKING
DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN,
WHICHEVER IS EARLIER. ***" THE IMPOSITION OF TIME LIMITS ON THE FILING
OF PROTESTS IS INTENDED TO ENABLE OUR OFFICE TO EFFECT A MEANINGFUL AND
EQUITABLE REMEDY AS THE CASE MAY REQUIRE.
ALTHOUGH THE BASIS OF CITY'S PROTEST WAS KNOWN IN AUGUST 1973, CITY'S
PROTEST WAS NOT FILED UNTIL APPROXIMATELY 8 MONTHS LATER. UNDER THE
CIRCUMSTANCES, CITY'S PROTEST WAS UNTIMELY FILED AND MAY NOT BE
CONSIDERED ON ITS MERITS.
WE WOULD LIKE TO POINT OUT, HOWEVER, THAT ANY QUESTIONS CONCERNING
THE ADMINISTRATION OF 8(A) PROGRAM AND THE CRITERIA FOR ELIGIBILITY
THEREUNDER SHOULD BE ADDRESSED TO SBA.
B-181708, AUG 16, 1974
HEADNOTES-UNAVAILABLE
CARRIER'S CAUSE OF ACTION FOR TRANSPORTATION CHARGES ACCRUED WHEN THE
SERVICES WERE RENDERED, BUT WHERE CARRIER'S CLAIM WAS SUBMITTED TO GAO
LATER THAN 3 YEARS FROM THE DATE OF ACCRUAL, THE CLAIM WAS PROPERLY
BARRED UNDER SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED,
49 U.S.C. 66 (1970), NOTWITHSTANDING CARRIER'S ASSERTION THAT ITS CLAIM
WAS SUBMITTED TO THE ARMY FINANCE CENTER WITHIN THE 3-YEAR PERIOD AND
WAS THEN SUBJECT TO ADMINISTRATIVE DELAY, FOR CARRIER COULD HAVE FILED
ITS CLAIM DIRECTLY WITH GAO AT ANY TIME WITHIN 3 YEARS AFTER THE DATE
SUCH CLAIM FIRST ACCRUED. 4 C.F.R. 54.6(A) AND 54.6A(A).
GEORGE O. SLATER, INC.:
GEORGE O. SLATER, INC. (CARRIER), A MOTOR CARRIER REGULATED BY THE
INTERSTATE COMMERCE COMMISSION, REQUESTS REVIEW OF THE ACTION TAKEN BY
THE U.S. GENERAL ACCOUNTING OFFICE'S TRANSPORTATION AND CLAIMS DIVISION
(TCD), IN RETURNING ITS CLAIM FOR TRANSPORTATION CHARGES OF $451 BECAUSE
THE CLAIM WAS BARRED FROM CONSIDERATION HERE BY SECTION 322 OF THE
TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66 (1970).
ON JUNE 24, 1969, A SHIPMENT OF HOUSEHOLD GOODS WAS TENDERED TO THE
CARRIERS'S AGENT AT FOXBORO, MASSACHUSETTS, UNDER GOVERNMENT BILL OF
LADING (GBL) NO. E-6650755. THE SHIPMENT WAS DELIVERED, ALSO ON JUNE
24, 1969, AT WARREN, RHODE ISLAND, WITH NO EXCEPTIONS NOTED.
THE CARRIER CLAIMS THAT THE ORIGINAL BILL OF LADING AND OTHER PAPERS
PROPERLY SUPPORTING THE BILL WERE SUBMITTED TO THE FINANCE CENTER OF THE
DEPARTMENT OF THE ARMY ON JUNE 27, 1969. THE ORIGINAL BILL OF LADING
APPARENTLY WAS LOST, FOR, ON MARCH 13, 1972, THE CARRIER WAS INFORMED BY
THE FINANCE CENTER THAT IT HAD NO INDICATION OF HAVING RECEIVED THE BILL
OF LADING OR THE SUPPORTING PAPERS. THEY SUGGESTED THAT THE CARRIER
OBTAIN A CERTIFICATE IN LIEU OF LOST GOVERNMENT BILL OF LADING (CIL)
FROM THE ISSUING TRANSPORTATION OFFICER AND SUBMIT THE CIL WITH "ALL
REQUIRED SUPPORTING DOCUMENTS."
THE CIL WAS RETURNED TO THE CARRIER ON JULY 19, 1972, BECAUSE CERTAI
SUPPORTING DOCUMENTS HAD NOT BEEN PROVIDED. IT AGAIN WAS RETURNED ON
OCTOBER 23, 1972, AND ON JANUARY 24, 1973, BECAUSE OF A LACK OF EVIDENCE
AT THAT TIME OF ITS ATTEMPT TO OBTAIN THE SIGNATURE OF THE CONSIGNEE ON
THE CIL.
ON MARCH 12, 1973, THE FINANCE CENTER FORWARDED THE CIL TO THE TCD AS
A CLAIM FOR DIRECT SETTLEMENT. ALTHOUGH THE CLAIM THEN CONTAINED A
LETTER FROM THE CARRIER INDICATING THAT THE CONSIGNEE HAD MOVED, THE
FINANCE CENTER SENT THE CLAIM TO GAO BECAUSE THE CIL LACKED THE
CONSIGNEE'S SIGNATURE.
THE TCD RETURNED THE CLAIM (NO. TK-960125) TO THE CARRIER ON MAY 31,
1973, BECAUSE IT HAD NOT BEEN RECEIVED BY GAO WITHIN 3 YEARS FROM THE
DATE OF ACCRUAL OF THE CAUSE OF ACTION THEREON IN ACCORDANCE WITH
SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66.
THE CARRIER REQUESTED THE TCD TO RECONSIDER THE CLAIM BECAUSE OF
ALLEGED ADMINISTRATIVE DELAYS IN THE HANDLING OF THE CLAIM, BUT IN A
LETTER EXPALINING IN DETAIL THE REASONS THEREFOR, THE CARRIER AGAIN WAS
DENIED RELIEF.
SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C.
66 (1970), SPECIFICALLY PROVIDES FOR THE PAYMENT OF TRANSPORTATION BILLS
UPON PRESENTATION, SUBJECT TO THE PROVISO:
"... THAT EVERY CLAIM COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE FOR
CHARGES FOR TRANSPORTATION WITHIN THE PURVIEW OF THIS SECTION SHALL BE
FOREVER BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED IN THE GENERAL
ACCOUNTING OFFICE WITHIN THREE YEARS (NOT INCLUDING ANY TIME OF WAR)
FROM THE DATE OF (1) ACCRUAL OF THE CAUSE OF ACTION THEREON, OR (2)
PAYMENT OF CHARGES FOR THE TRANSPORTATION INVOLVED, OR (3) SUBSEQUENT
REFUND FOR OVERPAYMENT OF SUCH CHARGES, OR (4) DEDUCTION MADE PURSUANT
TO THIS SECTION, WHICHEVER IS LATER."
A CAUSE OF ACTION FOR TRANSPORTATION CHARGES AGAINST THE UNITED
STATES ACCRUES WHEN THE SERVICES ARE RENDERED, I.E. IMMEDIATELY UPON THE
DELIVERY OF THE PROPERTY. THE STATUTE OF LIMITATIONS BEGINS TO RUN FROM
THAT DATE. BAGGETT TRANSPORTATION COMPANY V. UNITED STATES, 319 F.2D
864, 868 (CT. CL. 1963); BAKER V. CHAMBERLAIN MANUFACTURING
CORPORATION, 356 F.SUPP. 1314 (N.D. I11. 1973). SEE ALSO, 49 U.S.C.
304A(4) (1970). THE GOVERNMENT'S LIABILITY FOR THE FREIGHT CHARGES
INCIDENT TO THE SHIPMENT UNDER GBL NO. E-6650755, THEREFORE, ACCRUEDE ON
JUNE 24, 1969. NO CLAIM WAS RECEIVED BY GAO UNTIL MARCH 16, 1973. THIS
WAS MORE THAN THREE YEARS FROM THE DATE WITHIN WHICH A CLAIM COULD BE
FILED.
FURTHERMORE, THERE IS NO DISCRETION OR AUTHORITY IN OFFICERS OR
AGENTS OF THE UNITED STATES TO WAIVE THE PROVISIONS OF THE LAW
ESTABLISHING THE THREE-YEAR STATUTE OF LIMITATIONS. SEE MUNRO V.
UNITED STATES, 303 U.S. 36, 41 (1938); UNITED STATES V. GARBUTT OIL
CO., 302 U.S. 528, 534 (1938); FINN V. UNITED STATES, 123 U.S. 227, 233
(1887). GAO WOULD BE IN DIRECT VIOLATION OF THE LAW IF IT WERE TO
CONSIDER THIS CLAIM ON ITS MERITS.
THE CARRIER HAS SUGGESTED THAT IT SHOULD NOT BE HELD RESPONSIBLE FOR
THE DELAY SINCE ITS CLAIM WAS PRESENTED TO THE ARMY WITHIN THE 3-YEAR
PERIOD AND WAS THE SUBJECT OF CORRESPONDENCE BETWEEN THEM AND THE
CARRIER DURING THAT PERIOD. HOWEVER, THE TERMS OF THE STATUTE CLEARLY
PROVIDE THAT THE CLAIM MUST BE RECEIVED IN THE GAO. THE PUBLISHED
REGULATIONS OF GAO, 4 C.F.R. 54.6A(A), PROVIDE:
"*** THE FILING OF A CLAIM WITH SOME OTHER AGENCY OF THE GOVERNMENT
WILL NOT MEET THE REQUIREMENT OF THIS STATUTE; THE CLAIM MUST BE
RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 3 YEARS AFTER THE DATE
SUCH CLAIM FIRST ACCRUED."
THESE REGULATIONS ALSO CONTAIN THE FOLLOWING PERTINENT ADVICE, 4
C.F.R. 54.6(A):
"... A CLAIMANT MAY FILE A CLAIM DIRECT WITH THE TRANSPORTATION AND
CLAIMS DIVISION, GENERAL ACCOUTNING OFFICE, PARTICULARLY IF THE
APPLICABLE STATUTORY PERIOD OF LIMITATIONS IS ABOUT TO EXPIRE."
SHOULD THE CARRIER EXPERIENCE SIMILAR INSTANCES OF ADMINISTRATIVE
DELAY IT COULD FOLLOW SUCH A PROCEDURE TO TOLL THE STATUTE OF
LIMITATIONS FOR SUBMITTING A CLAIM TO GAO.
THE GAO OF COURSE CAN APPRECIATE THE CARRIER'S DISAPPOINTMENT AT
BEING DENIED PAYMENT FOR A SERVICE IT APPEARENTLY RENDERED. HOWEVER, 49
U.S.C. 66 (1970) NOT ONLY BARS PAYMENTS OF CARRIER CLAIMS SUBMITTED
AFTER THE STATUTE HAS RUN, BUT IT ALSO PRECLUDES OUR OFFICE FROM
DEDUCTING ANY OVERCHARGES IN CARRIERS' BILLS AFTER THE EXPIRATION OF THE
3-YEAR LIMITATION PERIOD.
B-181958, AUG 16, 1974
HEADNOTES-UNAVAILABLE
BIDDER, WHO MISTAKENLY BID $8,136.99 ON WRONG SURPLUS SALE ITEM, MAY
HAVE CONTRACT AWARDED HIM REFORMED. ORDINARILY A WIDE RANGE OF BID
PRICES IN SURPLUS SALE IS NOT DEEMED SUFFICIENT TO PUT CONTRACTING
OFFICER ON CONSTRUCTIVE NOTICE OF MISTAKE IN BID; HOWEVER, GAO AGREES
WITH ADMINISTRATIVE POSITION THAT CONTRACTING OFFICER WAS ON
CONSTRUCTIVE NOTICE UNDER CIRCUMSTANCES WHERE NEXT BID WAS $600.00,
PROPERTY'S CURRENT MARKET APPRAISAL WAS $600 AND BID REPRESENTED
APPROXIMATELY 95 PERCENT OF ACQUISITION COST FOR USED PROPERTY.
STRIEGEL SUPPLY AND EQUIPMENT CORP.
PURSUANT TO SALE NO. 27-4347, THE DEFENSE PROPERTY DISPOSAL SERVICE,
DEFENSE SUPPLY AGENCY, INVITED BIDS FOR VARIOUS SURPLUS ITEMS. STRIEGEL
SUPPLY AND EQUIPMENT CORP. SUBMITTED BIDS ON FIVE ITEMS, INCLUDING ITEM
31 WHICH WAS LISTED AS A BELT CONVEYOR OFFERED ON A "PRICE FOR THE LOT"
BASIS.
STRIEGEL'S BID FOR ITEM 31 OF $8,136.99 WAS THE HIGH BID RECEIVED FO
THE ITEM AND AWARD WAS EFFECTED JULY 3, 1974, UNDER SALE CONTRACT NO.
27-4347-083.
STRIEGEL REQUESTS THAT THIS CONTRACT BE REFORMED BY THE DELETION OF
ITEM 31 DUE TO A MISTAKE IN ITS BID. STRIEGEL STATES THAT IT HAD NOT
INTENDED TO BID ON ITEM 31, BUT RATHER HAD INTENDED TO BID ON ITEM 32
WHICH WAS A RAILWAY TRUCK. ITEM 32 WAS AWARDED TO ANOTHER BIDDER FOR
$10,050.00.
REFORMATION OF THIS CONTRACT CAN ONLY BE ALLOWED IF THE CONTRACTING
OFFICER HAD ACTUAL OR CONSTRUCTIVE NOTICE THAT STRIEGEL HAD MADE A
MISTAKE IN BID. ORDINARILY, A WIDE RANGE OF BID PRICES IN SURPLUS
PROPERTY SALES IS NOT DEEMED TO BE SUFFICIENT TO PUT THE CONTRACTING
OFFICER ON CONSTRUCTIVE NOTICE OF ERROR BECAUSE OF THE MANY POSSIBLE
USES TO WHICH THE PROPERTY MAY BE PUT. WENDER PRESSES, INC. V. UNITED
STATES, 170 CT. CL. 483 (1965); B-174940, APRIL 20, 1972; B-179305,
OCTOBER 23, 1973. HOWEVER, IN THE PRESENT CASE, STRIEGEL'S BID FAR
EXCEEDED THE NEXT HIGH BID OF $600.00 AND THE PROPERTY'S $600.00 CURRENT
MARKET APPRAISAL. MOREOVER, EVEN THOUGH THE PROPERTY IS DESCRIBED AS
BEING USED, STRIEGEL'S BID REPRESENTS APPROXIMATELY 95 PERCENT OF THE
PROPERTY'S ACQUISITION COST. UNDER THESE CIRCUMSTANCES, WE BELIEVE THAT
THE CONTRACTING OFFICER WAS ON CONSTRUCTIVE NOTICE OF A MISTAKE IN
STRIEGEL'S BID. SEE B-176123, JULY 3, 1972; B-177167, OCTOBER 30,
1972.
ACCORDINGLY, WE AGREE WITH THE ADMINISTRATIVE RECOMMENDATION THAT
THIS CONTRACT BE REFORMED BY THE DELETION OF ITEM 31 WITHOUT FURTHER
OBLIGATION OF EITHER PARTY.
B-179876(2), AUG 15, 1974
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
THE HONORABLE ARTHUR F. SAMPSON:
WE REFER TO LETTER DATED FEBRUARY 15, 1974, WITH ENCLOSURES, AND
PRIOR CORRESPONDENCE, FROM YOUR GENERAL COUNSEL, CONCERNING THE PROTESTS
FILED BY PAGE AIRWAYS, INC. (PAGE), SPACE A.G.E. INC., B.B. SAXON
COMPANY, INC., AND ALCO TOOL & MFG. COMPANY (ALCO) UNDER INVITATION FOR
BIDS NO. GS-07-DP-(P)-45903.
ENCLOSED IS A COPY OF OUR DECISION OF TODAY. WHILE THE PROTESTS HAVE
BEEN DENIED, WE WISH TO CALL YOUR ATTENTION TO THE PORTION OF THE
DECISION DEALING WITH THE REJECTION OF THE PAGE AND ALCO BIDS FOR
FAILURE TO COMPLY WITH THE SOLICITATION'S MINIMUM ORDER PROVISION. FOR
THE REASONS INDICATED IN THE DECISION, WE BELIEVE YOU SHOULD GIVE
CONSIDERATION TO REVISING THIS PROVISION TO ACHIEVE GREATER CLARITY. AT
A MINIMUM, WE THINK IT WOULD BE APPROPRIATE TO INCLUDE IN THE PROVISION
A CAUTIONARY NOTE WARNING BIDDERS THAT THE INSERTION OF AN AMOUNT
GREATER THAN $50 IN THE "SPECIFIC MINIMUM" BLANK MAY RESULT IN REJECTION
OF THE BID AS NONRESPONSIVE.
PLEASE ADVISE US OF THE ACTION TAKEN ON THIS RECOMMENDATION.
B-180461, AUG 15, 1974
HEADNOTES-UNAVAILABLE
WHERE AN EMPLOYEE ASSIGNED TO MANILA, REPUBLIC OF THE PHILIPPINES,
PURCHASED AN AUTOMOBILE AND CLAIMED TRANSPORTATION COSTS FROM NAGOYA,
JAPAN, TO MANILA, HE MAY NOT BE REIMBURSED SINCE THE VEHICLE WAS NOT OF
AMERICAN MANUFACTURE, WAS NOT TRANSPORTED FROM THE CONTERMINCUS UNITED
STATES, AND IS TO BE USED PRIMARILY FOR THE EMPLOYEE'S CONVENIENCE, NOT
FOR THE ADVANTAGE OF THE GOVERNMENT, AS REQUIRED BY THE FEDERAL TRAVEL
REGULATIONS.
SHIPMENT OF PRIVATELY OWNED AUTOMOBILE OVERSEAS
THIS DECISION CONCERNS THE PROPRIETY OF REIMBURSING JAMES C. MAHER,
AN EMPLOYEE OF THE DEPARTMENT OF THE TREASURY, FOR THE SHIPPING AND
WHARF CHARGES INCURRED BY HIM FOR SHIPMENT OF AN AUTOMOBILE FROM NAGOYA,
JAPAN, TO HIS DUTY STATION IN MANILA, REPUBLIC OF THE PHILIPPINES.
MR. MAHER, AN ASSISTANT REGIONAL DISBURSING OFFICER, WAS TRANSFERRED
TO MANILA IN FEBRUARY 1972. IN AUGUST 1973 MR. MAHER ARRIVED AT THE
CONCLUSION THAT A CAR WAS A NECESSITY AND ORDERED ONE FOR DELIVERY TO
MANILA. HE NOW SEEKS REIMBURSEMENT FOR CHARGES INCURRED FOR SHIPMENT OF
THE AUTOMOBILE.
REIMBURSEMENT FOR SUCH EXPENSES IS GOVERNED BY THE FEDERAL TRAVEL
REGULATIONS (FTR), FPMR 101-7, WHICH IMPLEMENT 5 U.S.C. 5727. SECTION
2-10.3D, FTR, PROVIDES IN RELEVANT PART:
"(1) WHEN PRIVATELY OWNED VEHICLE BECOMES NECESSARY. IF, AFTER AN
EMPLOYEE IS ASSIGNED TO AN OFFICIAL STATION OUTSIDE THE CONTERMINOUS
UNITED STATES WITHOUT AN AUTHORIZATION TO TRANSPORT A PRIVATELY OWNED
VEHICLE UNDER THIS PART, IT BECOMES DESIRABLE THAT HE HAVE A PRIVATELY
OWNED VEHICLE AT THAT OFFICIAL STATION AND IF THE CONDITONS OF 2-10.2
ARE MET, A VEHICLE MAY BE TRANSPORTED FROM AN APPROPRIATE POINT IN THE
CONTERMINOUS UNITED STATES TO THE OFFICIAL STATION. ***"
SECTION 2-10.2C, FTR, REQUIRES AN AGENCY DETERMINATION THAT THE
TRANSPORTATION IS IN THE INTEREST OF THE GOVERNMENT AND SETS FORTH SIX
CONDITIONS, ALL OF WHICH MUST BE MET BEFORE A DETERMINATION MAY BE MADE.
SUBSECTION (1) OF THIS REGULATION PROVIDES:
"USE OF THE PRIVATELY OWNED VEHICLE WILL NOT BE PRIMARILY FOR THE
CONVENIENCE OF THE EMPLOYEE AND HIS IMMEDIATE FAMILY."
SUBSECTION (6) OF SECTION 2-10.2C PROVIDES:
"C. AGENCY DETERMINATION REQUIRED. THE COST OF TRANSPORTING A
PRIVATELY OWNED VEHICLE SHALL NOT BE AUTHORIZED UNLESS IT HAS BEEN
DETERMINED BY THE HEAD OF THE AGENCY CONCERNED OR HIS DESIGNEE THAT IT
IS IN THE INTEREST OF THE GOVERNMENT FOR THE EMPLOYEE TO HAVE THE USE OF
HIS PRIVATELY OWNED VEHICLE AT HIS POST OUTSIDE THE CONTERMINOUS UNITED
STATES. SUCH A DETERMINATION MAY BE MADE ONLY IF ALL OF THE FOLLOWING
CONDITIONS ARE PRESENT:
"(1) USE OF THE PRIVATELY OWNED VEHICLE WILL NOT BE PRIMARILY FOR THE
CONVENIENCE OF THE EMPLOYEE AND HIS IMMEDIATE FAMILY;
"(2) LOCAL CONDITIONS AT THE OFFICIAL STATION WHERE THE PRIVATELY
OWNED VEHICLE IS TO BE USED MAKE IT DESIRABLE FROM THE GOVERNMENT'S
VIEWPOINT FOR THE EMPLOYEE TO HAVE THE USE OF A PRIVATELY OWNED VEHICLE;
"(3) USE OF A PRIVATELY OWNED VEHICLE BY THE EMPLOYEE WILL CONTRIBUTE
TO HIS EFFECTIVENESS IN HIS JOB;
"(4) USE OF A PRIVATELY OWNED VEHICLE OF THE TYPE INVOLVED WILL BE
SUITABLE IN THE LOCAL CONDITIONS OF THE OFFICIAL STATION;
"(5) THE COST OF TRANSPORTING THE PRIVATELY OWNED VEHICLE TO AND FROM
THE OFFICIAL STATION INVOLVED WILL NOT BE EXCESSIVE CONSIDERING THE TIME
THE EMPLOYEE HAS AGREED TO SERVE AT THAT OFFICIAL STATION; AND
"(6) THE PRIVATELY OWNED VEHICLE IS OF UNITED STATES MANUFACTURE
UNLESS (I) THE HEAD OF THE AGENCY OR HIS DESIGNEE DETERMINES THAT ONLY
VEHICLES OF FOREIGN MANUFACTURE MAY BE USED EFFECTIVELY AT THE OFFICIAL
STATION CONCERNED, (II) THE PRIVATELY OWNED VEHICLE TO BE TRANSPORTED
WAS PURCHASED BY THE EMPLOYEE BEFORE HE WAS AWARE THAT HE WOULD BE
ASSIGNED TO DUTY AT AN OFFICIAL STATION TO WHICH THE TRANSPORTATION OF A
PRIVATELY OWNED VEHICLE WOULD BE AUTHORIZED OR, (III) FOR OTHER REASONS
AND TAKING INTO CONSIDERATION THE CURRENT UNITED STATES BALANCE OF
PAYMENTS SITUATION IT IS DETERMINED THAT THE EMPLOYEE SHOULD BE ALLOWED
TO SHIP A VEHICLE OF FOREIGN MANUFACTURE."
WITH REGARD TO THE FIRST CONDITION, THE RECORD CONTAINS A MEMORANDUM
FROM MR. MAHER IN WHICH HE STATES THAT THE "CAR WILL BE USED PRIMARILY
FOR HIS OWN CONVENIENCE." THE RECORD ALSO SHOWS THAT THE AGENCY
PREVIOUSLY DISAPPROVED MR. MAHER'S REQUEST FOR AUTHORIZATION TO
TRANSPORT AN AUTOMBILE BECAUSE HE HAD BEEN USING MASS TRANSIT FACILITIES
FOR A PERIOD OF 20 MONTHS. THE PRESENT REQUEST FOR A DECISION FROM THE
DEPUTY ASSISTANT COMPTROLLER FOR FINANCE RESULTS FROM A CONCLUSION BY
MR. MAHER THAT PUBLIC TRANSIT FACILITIES HAVE DETERIORATED IN QUALITY.
HOWEVER, NO EVIDENCE WAS PRESENTED TO SHOW THAT IT WOULD BE TO THE
ADVANTAGE OF THE GOVERNMENT THAT HE HAVE AN AUTOMOBILE AT HIS POST, NOR
HAS THE AGENCY REVERSED ITS EARLIER DISAPPROVAL AND DETERMINED, AS
REQUIRED BY THE REGULATIONS CITED, SUPRA, THAT IT IS IN THE INTERESTS OF
THE UNITED STATES FOR MR. MAHER TO HAVE HIS PRIVATELY OWNED VEHICLE AT
HIS OFFICIAL STATION.
THE RECORD ALSO INDICATES THAT THE CAR IN QUESTION WAS NOT OF
AMERICAN MANUFACTURE, ALTHOUGH IT DID CARRY A UNITED STATES TRADEMARK,
AND THUS MAY NOT MEET THE CONTITIONS OF SUBSECTION (6) UNLESS THE AGENCY
EXERCISES ITS RIGHT TO WAIVE THIS REQUIREMENT FOR ONE OF THE STATED
REASONS. THERE IS NO INDICATION IN THE RECORD THAT THE PROVISIONS OF
SUBSECTION (6) WERE EVEN CONSIDERED.
FINALLY, IT APPEARS THAT THE VEHICLE IN QUESTION WAS NOT SHIPPED FROM
THE CONTERMINOUS UNITED STATES, AS AUTHORIZED BY SECTION 2-10.3D, SUPRA,
BUT FROM NAGOYA, JAPAN. THERE APPEARS TO BE SOME LEEWAY IN SECTION
2-10.4B OF FPMR 101-7 FOR PAYMENT OF EXPENSES FROM "ALTERNATE ORIGINS"
WHERE THE COSTS WOULD NOT EXCEED THE COST OF TRANSPORTATION FROM THE
AUTHORIZED PLACE OF ORIGIN. THIS WOULD ALSO REQUIRE AN ADMINISTRATIVE
DETERMINATION.
ON THE BASIS OF PRESENT RECORD, WE MUST FIND THAT THERE IS NO LEGAL
BASIS TO AUTHORIZE SHIPMENT OF HIS AUTOMOBILE AND REIMBURSEMENT OF THE
SHIPPING AND WHARF CHARGES.
B-180615, AUG 15, 1974
HEADNOTES-UNAVAILABLE
WHERE SPECIFICATIONS CALLED FOR BIDS ON BASIC ITEM PLUS SPECIFIED
ADDITIVES, BUT ADDITIVES COULD NOT BE AWARDED DUE TO INSUFFICIENT FUNDS,
FACT THAT SUCCESSFUL BIDDER LATER PERFORMED ONE OF ADDITIVES
GRATUITOUSLY IN INTERESTS OF GOOD WORKMANSHIP WILL NOT SUPPORT CLAIM FOR
BID PREPARATION COSTS BY PROTESTER, WHO WOULD HAVE BEEN LOW ON BASIC
ITEM PLUS ADDITIVE, BECAUSE NO ARBITRARY OR CAPRICIOUS ACTION IS SHOWN.
FURTHERMORE, CLAIM FOR RECOVERY OF ANTICIPATED PROFITS BY ONE NOT A
PARTY TO CONTRACT MAY NOT BE ALLOWED. SEE COURT CASES CITED.
ROY MCGINNIS AND COMAPNY:
THE PROTESTER HAS SUBMITTED A CLAIM FOR RECOVERY OF ANTICIPATED
PROFITS IN THE AMOUNT OF $4,962.00, AND BID PREPARATION COSTS IN THE SUM
OF $500.00, CONTENDING THAT IT WAS ARBITRARILY AND CAPRICIOUSLY DENIED
AN AWARD UNDER INVITATION FOR BIDS (IFB) NO. F41699-74-B-0089, ISSUED
SEPTEMBER 10, 1973, BY KELLY AIR FORCE BASE, TEXAS.
THE SUBJECT IFB CONTEMPLATED A CONSTRUCTION CONTRACT FOR THE
CONVERSION OF WAREHOUSE SPACE INTO AN ADMINISTRATIVE AREA AT BUILDING
43. SCHEDULE C, SPECIFIED A "BASIC BID", REQUIRING THE PERFORMANCE OF
ALL ARCHITECTURAL, MECHANICAL AND ELECTRICAL WORK NECESSARY TO EFFECT
THE CONVERSION. FURTHERMORE, THREE ADDITIVES, DESIGNATED "A", "B", AND
"C" CALLED FOR THE TAPING AND FLOATING OF APPROXIMATELY 1200 SQUARE FEET
(S.F.) OF GYPSUM BOARD, THE INSTALLATION OF APPROXIMATLEY 7200 S.F. OF
ACOUSTICAL CEILING, AND THE INSTALLATION OF APPROXIMATELY 7200 S.F. OF
VINYL ASBESTOS FLOORING, RESPECTIVELY. A BID OF A SINGLE LUMP SUM WAS
REQUESTED FOR THE BASIC BID AND EACH OF THE ADDITIVES.
ALL WORK CALLED FOR UNDER THE IFB WAS EXPRESSLY MADE SUBJECT TO A
STATUTORY COST LIMITATION OF $50,000. THE GOVERNMENT RESERVED THE RIGHT
TO MAKE THE AWARD ON THE BASIS OF THE LOW RESPONSIVE BID FOR THE BASIC
BID ALONE, OR THE BASIC BID PLUS ADDITIVE ITEMS AS CONTEMPLATED BY THE
PROVISIONS SET FORTH IN PARAGRAPH 11, "ADDITIVE OR DEDUCTIVE ITEMS", OF
THE CONTINUATION SHEET TO STANDARD FORM 20, INVITATION FOR BIDS
(CONSTRUCTION CONTRACT). THAT CLAUSE PROVIDED FOR AWARD TO THE
CONFORMING RESPONSIBLE BIDDER OFFERING THE LOW AGGREGATE AMOUNT FOR THE
FIRST OR BASE BID ITEM, PLUS OR MINUM (IN THE ORDER OF PRIORITY LISTED
IN THE SCHEDULE) THOSE ADDITIVE OR DEDUCTIVE BID ITEMS PROVIDING THE
MOST FEATURES OF THE WORK WITHIN THE FUNDS DETERMINED BY THE GOVERNMENT
TO BE AVAILABLE BEFORE BIDS ARE OPENED. THE CONTRACTING OFFICER
FORMALLY ANNOUNCED, PRIOR TO THE 2:00 P.M. OCTOBER 1, 1973, BID OPENING,
THAT THE AMOUNT OF FUNDS AVAILABLE AT THE TIME OF BID OPENING WAS
$49,400.00.
UPON THE OPENING OF BIDS, ONLY TWO FIRMS, WALTER BUCHHORN, GENERAL
CONTRACTOR AND THE PROTESTER, SET FORTH PRICES FOR THE "BASIC BID"
WITHIN THE $49,400 CEILING STIPULATED:
BASIC BID ADDITIVE
A B C
WALTER
BUCHHORN $48,989.00 700.00 5,709.00 2,130.00
ROY
MCGINNIS 49,270.00 350.00 4,800.00 2,500.00
CONSISTENT WITH THE PROVISIONS OF THE "ADDITIVE OR DEDUCTIVE" CLAUSE,
AND THE SPECIFIED $49,400 LIMIT ON FUNDS, IT WAS DETERMINED THAT AN
AWARD COULD BE MADE ONLY ON THE BASIS OF THE LOW BID FOR THE "BASIC BID"
INASMUCH AS THE PRICES WHICH EACH FIRM SUBMITTED FOR ADDITIVE A WOULD
PUSH THE AGGREGATE BID OF EACH ABOVE THE $49,400 LIMITATION.
ACCORDINGLY, AN AWARD WAS CONSUMMATED WITH BUCHHORN ON OCTOBER 19, 1973,
FOR THE BASIC BID ONLY.
BY TELEGRAM OF DECEMBER 22, 1973, THE PROTESTER NOTIFIED THE
CONTRACTING OFFICER THAT ADDITIVE A WAS BEING PERFORMED UNDER THE
CONTRACT AND, AS A CONSEQUENCE, IT WAS CONTENDED THAT THIS HAD THE
EFFECT OF DISPLACING MCGINNIS AS THE LOW RESPONSIVE BIDDER BECAUSE
MCGINNIS' BID WAS LOW IF BIDS WERE CONSIDERED ON THE BASIS OF BOTH THE
BASIC BID PLUS ADDITIVE A. THE CONTRACTING OFFICER WAS ADVISED THAT
SINCE THE PROJECT WAS SUBSTANTIALLY COMPLETED, THE PROTESTER WAS
ENTITLED TO RECOVER THE ENTIRE CONTRACT PRICE.
ON THE BASIS OF THE FOREGOING TELEGRAM, AN INQUIRY INTO THE MATTER
WAS CONDUCTED. A SITE VISIT VERIFIED THAT THE WORK SET FORTH IN
ADDITIVE A HAD, IN FACT, BEEN PERFORMED. HOWEVER, THE PROJECT ENGINEER
CERTIFIED HE HAD NOT AUTHORIZED PERFORMANCE OF THAT WORK. AN EFFORT WAS
THEN UNDERTAKEN TO DETERMINE THE CIRCUMSTANCES UNDER WHICH ADDITIVE A
WORK HAD BEEN ACCOMPLISHED. BY LETTER OF JANUARY 17, 1974, THE GENERAL
CONTRACTOR ADVISED THAT THE WORK WAS NOT PERFORMED AT THE REQUEST OF THE
CONTRACTING AGENCY BUT WAS DONE VOLUNTARILY AND GRATUITOUSLY BY THE
CONTRACTOR SO AS TO COMPLETE THE JOB "USING GOOD CONSTRUCTION
PRACTICES". BY LETTER OF THE SAME DATE, THE GENERAL CONTRACTOR'S
PAINTING SUBCONTRACTOR REPRESENTED THAT, BY MUTUAL AGREEMENT BETWEEN
ITSELF AND THE GENERAL CONTRACTOR, IT WAS AGREED TO COMPLETE ALL TAPING
AND FLOATING OF GYPSUM WALLBOARD AT NO ADDITIONAL COST TO THE
GOVERNMENT, EVEN THOUGH THE CONTRACTING AGENCY HAD NOT SO REQUESTED.
THE CONTRACTING AGENCY HAS STATED THAT ADDITIVE A WAS NOT ACCEPTED UNDER
THE BASIC CONTRACT AWARD; THAT NO PAYMENT WAS MADE THEREFOR; AND THAT
THE WORK WAS NOT SUBSEQUENTLY INCORPORATED INTO THE CONTRACT. FINAL
ACCEPTANCE AND BENEFICIAL OCCUPANY WAS TAKEN BY THE GOVERNMENT ON
JANUARY 25, 1974.
COUNSEL FOR THE PROTESTER CONTENDS THAT THE INCLUSION OF THE WORK AT
ISSUE AFTER AWARD HAD THE EFFECT OF DISPLACING THE PROTESTER AS THE
LOWEST QUALIFIED BIDDER ON THE COMBINATION OF THE BASE BID AND ADDITIVE
A. IT IS FURTHER ALLEGED THAT THE PROCURING AGENCY KNEW OR SHOULD HAVE
KNOWN THAT THE TAPING AND FLOATING WAS REQUIRED IN THE INTEREST OF GOOD
WORKMANSHIP, AND THAT THE AWARD FOR THE BASIC WORK ONLY WAS IN EFFECT A
MERE SHAM TO PROVIDE THE GOVERNMENT WITH THE MEANS OF SECURING THE WORK
"AT NO ADDITIONAL COST", EVEN THOUGH FUNDS SUBSEQUENTLY BECAME
AVAILABLE. IN THIS REGARD, IT IS NOTED THAT OTHER "REPAIR" ITEMS WERE
LATER PERFORMED PURSUANT TO CONTRACT MODIFICATIONS FOR WHICH THE
GOVERNMENT PAID ADDITIONAL MONEY.
AS THE PROTESTER INDICATES, TWO SUBSEQUENT MODIFICATIONS TO THE
CONTRACT WERE MADE: REPAIR OF THE EXISTING COLUMNS FOR $2,025, AND
EXTENSION OF THE WALL HEIGHT TO OVERCOME HEATING, COOLING AND
VENTILATION PROBLEMS FOR $964.00. ONLY THE LATTER WAS MADE WITH
"ALTERATION" FUNDS, AND WHEN ADDED TO THE CONTRACT PRICE, THE TOTAL
FUNDS WERE STILL WITHIN THE $50,000 STATUTORY LIMITATION. THERE IS NO
EVIDENCE THAT THIS LATTER MONEY WAS AVAILABLE AT TIME OF BID OPENING, AS
IT WAS SPECIFICALLY ANNOUNCED THAT AVAILABLE FUNDS AT THAT TIME WERE
ONLY $49,400.00. NIEHTER OF THESE SUBSEQUENT PAID MODIFICATIONS
INVOLVED ANY OF THE WORK DESCRIBED IN THE SOLICITATION UNDER THE BASIC
BID OR THE ADDITIVES.
THE PROTESTER HAS SUBMITTED AN AFFIDAVIT STATING THAT IT WAS
REPRESENTED BY THE CONTRACTING OFFICER, SUBSEQUENT TO BID OPENING, THAT
THE WORK REQUIRED BY ADDITIVE A SHOULD BE DONE BUT THAT AWARD WOULD BE
MADE ON THE BASIC BID ONLY DUE TO THE INSUFFICIENCY OF FUNDS. THE
AFFIDAVIT STATES THAT THE CONTRACTING OFFICER STATED THAT THE TAPING AND
FLOATING OF GYPSUM BOARD "WOULD NOT BE DONE UNDER THIS CONTRACT BECAUSE
TO DO SO WOULD RESULT IN DISPLACING THE LOW RESPONSIVE BIDDER ***." THE
AFFIDAVIT STATES THAT THE AFFIANT DOES NOT CLAIM ADDITIONAL MONEY WAS
PAID FOR THE SUBJECT WORK, BUT THAT IN HIS OPINION, THE SUBSEQUENT
PERFORMANCE OF THAT WORK RENDERED THE AWARD OF THE CONTRACT ON THE BASIC
BID ONLY ARBITRARY AND ERRONEOUS.
WITH REGARD TO THE REQUEST FOR RECOVERY OF ANTICIPATED PROFITS, THE
COURT OF CLAIMS HAS STATED THAT THERE IS NO BASIS FOR THE RECOVERY
THEREREOF BY A CLAIMANT WHO IS NOT A PARTY TO A GOVERNMENT CONTRACT.
HEYER PRODUCTS COMPANY, INC. V. UNITED STATES, 135 CT. CL. 63 (1956),
AND KECO INDUSTRIES, INC. V. UNITED STATES, 428 F2D. 1233 (CT. CL.
1970); SEE ALSO B-179719, B-179720, JANUARY 29, 1974. SINCE NO
CONTRACT WITH MCGINNIS EVER CAME INTO EXISTENCE, THERE IS NO LEGAL BASIS
TO ALLOW RECOVERY FOR LOSS OF ANTICIPATED PROFITS.
CONCERNING THE RECOVERY OF BID PREPARATION COSTS, IN A RECENT
RECONSIDERATION OF THE KECO CASE, CITED ABOVE, THE COURT OF CLAIMS
DISCUSSED AND REAFFIRMED THE REQUIREMENT SET FORTH IN HEYER AND KECO,
SUPRA, THAT THE UNSUCCESSFUL BIDDER MUST DEMONSTRATE THE EXISTENCE OF A
PREDETERMINATION OF THE EVENTUAL CONTRACTOR SO AS TO RENDER THE
SUBSEQUENT BIDDING PROCEDURE A MERE SHAM TO CONCEAL THE INTENTION TO LET
THE CONTRACT TO SOME FAVORED BIDDER, OR THE FAILURE BY THE GOVERNMENT TO
OTHERWISE HONESTLY AND FAIRLY CONSIDER EACH BID. KECO INDUSTRIES, INC.
V. UNITED STATES, DECIDED FEBRUARY 20, 1974, CT. CLS. NO. 173-69. SEE
ALSO EXCAVATION CONSTRUCTION, INC. V. UNITED STATES, NO. 408-71, CT.
CLS., APRIL 17, 1974, WHERE THE COURT STATED THAT THE RECOVERY OF BID
PREPARATION COSTS IS DEPENDENT UPON THE UNSUCCESSFUL BIDDER SHOWING
ARBITRARY AND CAPRICIOUS ACTION BY THE GOVERNMENT IN AWARDING THE
CONTRACT TO ANOTHER AND THUS FAILING TO GIVE HONEST CONSIDERATION TO THE
UNSUCCESSFUL BIDDER'S BID. THE COURT ALSO NOTED THAT THE STANDARD OF
PROOF TO BE APPLIED IN ORDER TO ESTABLISH ARBITRARY AND CAPRICIOUS
ACTION IS A HIGH ONE AND MUST SHOW THAT THERE WAS NO REASONABLE BASIS
FOR THE DECISION TO AWARD THE CONTRACT TO OTHER THAN THE UNSUCCESSFUL
BIDDER.
THE STATUTE GOVERNING THIS PROCUREMENT, 10 U.S.C. 2305(C), REQUIRED
THAT AWARD BE MADE TO THE LOW RESPONSIBLE BIDDER WHOSE BID CONFORMED TO
THE SOLICITATION, SUBJECT ONLY TO THE FUNDING LIMITATION ANNOUNCED PRIOR
TO BID OPENING. SINCE BUCHHORN'S BASIC BID WAS THE LOW CONFORMING BID
WITHIN THE MONETARY LIMITATION, AWARD WAS PROPERLY MADE TO BUCHHORN.
FURTHERMORE, THERE IS NO ALLEGATION OR INDICATION IN THE RECORD THAT
BIDS ON THE PROJECT WERE INVITED AS A MERE SHAM TO CONCEAL THE INTENTION
TO LET THE CONTRACT TO BUCHHORN, OR THAT THERE WAS ANY COMMUNICATION OR
AGREEMENT BETWEEN THE CONTRACTING OFFICER AND BUCHHORN PRIOR TO AWARD
THAT THE WORK DELINEATED BY ADDITIVE A WOULD LATER BE PERFORMED, EITHER
UPON THE AVAILABILITY OF ADDITIONAL FUNDS OR GRATUITOUSLY. MOREOVER,
WHEN THAT WORK WAS LATER PERFORMED, THERE IS NO INDICATION IN THE RECORD
THAT IT WAS AT THE REQUEST OF THE CONTRACTING AGENCY OR THAT IT WAS
EITHER PAID FOR OR INCORPORATED INTO THE CONTRACT BY MODIFICATION. IN
THESE CIRCUMSTANCES, THERE IS CLEARLY NO EVIDENCE THAT THE AWARD
RESULTED FROM ARBITRARY AND CAPRICIOUS ACTION, OR THAT MCGINNIS' BID
FAILED TO RECEIVE HONEST CONSIDERATION. MOREOVER, WE FAIL TO SEE ANY
BASIS FOR CONCLUDING THAT THE EVENTS WHICH OCCURRED SUBSEQUENT TO THE
AWARD AFFECTED ITS VALIDITY OR SUPPORT A CLAIM FOR BID PREPARATION
COSTS.
SINCE THERE HAS NOT BEEN A SHOWING OF ARBITRARY OR CAPRICIOUS ACTION
GIVING "RISE TO A RIGHT TO BE COMPENSATED" FOR BID PREPARATION COSTS
UNDER THE STANDARDS ENUNCIATED IN THE KECO AND EXCAVATION CONSTRUCTION
CASES, SUPRA, THIS CLAIM IS ALSO DENIED.
B-180898, AUG 15, 1974
HEADNOTES-UNAVAILABLE
WAGE BOARD EMPLOYEE ASSIGNED TO PERFORM WORK AT A WORKSITE LOCATED
APPROXIMATELY ONE HOUR'S TRAVEL TIME FROM HIS DUTY STATION WHO CHOSE,
FOR PERSONAL REASONS, TO COMMUTE EACH DAY RATHER THAN REMAIN OVERNIGHT
AT THE WORKSITE AS AUTHORIZED, IS NOT ENTITLED TO OVERTIME FOR THE TIME
SPENT TRAVELING TO AND FROM THE WORKSITE OUTSIDE HIS REGULAR DUTY HOURS
SINCE THE TRAVEL PERFORMED IS NOT HOURS OF WORK AND THUS COMPENSABLE AS
OVERTIME UNDER THE CRITERIA SET FORTH IN 5 U.S.C. 5544(A).
WILLIAM A. PRESCOTT - OVERTIME COMPENSATION:
THIS MATTER INVOLVES A REQUEST FROM MR. WILLIAM A. PRESCOTT, AN
EMPLOYEE OF THE NATIONAL PARK SERVICE, UNITED STATES DEPARTMENT OF THE
INTERIOR, FOR RECONSIDERATION OF THE NOVEMEBER 27, 1973, SETTLEMENT
CERTIFICATE ISSUED BY OUR TRANSPORTATION AND CLAIMS DIVISION, WHEREIN
MR. PRESCOTT'S CLAIM FOR OVERTIME COMPENSATION WAS DISALLOWED. MR.
PRESCOTT, A WAGE BOARD EMPLOYEE, IS CLAIMING OVERTIME FOR TIME SPENT IN
TRAVEL BETWEEN HIS DUTY STATION AT PINE ISLAND AND A WORKSITE AT
FLAMINGO, BOTH LOCATED IN EVERGLADES NATIONAL PARK, FLORIDA.
THE RECORD INDICATES THAT BETWEEN JANUARY 8, 1968, AND JANUARY 2,
1973, MR. PRESCOTT WAS ASSIGNED TO WORK AT VARIOUS TIMES AT FLAMINGO, A
WORKSITE LOCATED APPROXIMATELY ONE HOUR'S TRAVEL TIME FROM PINE ISLAND.
BECAUSE OF THE TRAVEL TIME INVOLVED AND BECAUSE OR AN ADMINISTRATIVE
DETERMINATION THAT THE WORK AT FLAMINGO RECURIED 8 HOURS PER DAY, THE
EMPLOYEES ASSIGNED TO FLAMINGO WERE AUTHORIZED PER DIEM AND REQUESTED TO
REMAIN OVERNIGHT. HOWEVER FOR PERSONAL REASONS MR. PRESCOTT ELECTED NOT
TO REMAIN OVERNIGHT AT FLAMINGO, CHOOSING INSTEAD TO COMMUTE TO AND FROM
THE WORKSITE EACH DAY. THEREFORE HE WOULD LEAVE PINE ISLAND AT 7 A.M.
IN ORDER TO ARRIVE AT FLAMINGO BY 8 A.M. AND THEN LEAVE FLAMINGO AT THE
CONCLUSION OF HIS TOUR OF DUTY AT 4:30 P.M., ARRIVING BACK AT PINE
ISLAND AT 5:30 P.M. MR. PRESCOTT STATES THAT HE WAS ORDERED BY HIS
SUPERVISORS TO TRAVEL AT THE TIMES AND IN THE MANNER THAT HE DID AND
THAT HE WAS NEVER TOLD ABOUT THE AVAILABILITY OF PER DIEM UNTIL 2 YEARS
AFTER HE HAD STARTED MAKING THOSE REGULAR TRIPS EACH DAY TO FLAMINGO.
MR. PRESCOTT ALSO SEEKS ADVICE REGARDING FURTHER APPEAL OF HIS CLAIM IN
THE EVENT THAT IT IS AGAIN DISALLOWED BY THIS OFFICE.
THE APPLICABLE STATUTORY PROVISIONS GOVERNING PAYMENT OF OVERTIME
COMPENSATION TO WAGE BOARD EMPLOYEES IN A TRAVEL STATUS ARE CONTAINED IN
SECTION 5544(A) OF TITLE 5, UNITED STATES CODE, AS FOLLOWS:
"*** TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL DUTY
STATION OF AN EMPLOYEE SUBJECT TO THIS SUBSECTION IS NOT HOURS OF WORK
UNLESS THE TRAVEL (I) INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING,
(II) IS INCIDENT TO TRAVEL THAT INVOLVES THE PERFORMANCE OF WORK WHILE
TRAVELING, (III) IS CARRIED OUT UNDER ARDUOUS CONDITIONS, OR (IV)
RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED
ADMINISTRATIVELY."
AS POINTED OUT IN THE PREVIOUS DISALLOWANCE OF MR. PRESCOTT'S CLAIM,
THERE IS NO INDICATION THAT, IN ACCORDANCE WITH THE ABOVE-CITED SECTION,
THE TRAVEL WHICH MR. PRESCOTT PERFORMED EITHER INVOLVED WORK, WAS
INCIDENT TO TRAVEL WHICH INVOLVED WORK OR WAS PERFORMED UNDER ARDUOUS
CONDITIONS. IT IS ALSO CLEAR FROM THE RECORD THAT THE TRAVEL WAS
SUBJECT TO ADMINISTRATIVE SCHEDULING AND CONTROL. IT APPEARS THAT IT
WAS FOR THIS REASON THAT THE AGENCY, AFTER DETERMINING THAT IT WOULD BE
NECESSARY TO REQUIRE A FULL 8 HOURS OF WORK EACH DAY AT THE WORKSITE AND
REALIZING THAT THEREFORE TRAVEL WOULD BE REQUIRED THAT WOULD NOT BE
PAYABLE AS OVERTIME UNDER THE LAW, AUTHORIZED PER DIEM FOR THE EMPLOYEES
INVOLVED. THERE IS THEREFORE NO BASIS FOR THE ALLOWANCE OF MR.
PRESCOTT'S CLAIM UNDER 5 U.S.C. 5544(A).
THE ONLY ADDITIONAL BASIS UPON WHICH TRAVE MAY BE COMPENSABLE AS
OVERTIME HOURS OF WORK IS WHERE TRAVEL IS AN INHERENT PART OF OR
INSEPARABLE FROM WORK. TRAVEL WHICH HAS NO PURPOSE OTHER THAN TO
TRANSPORT AN EMPLOYEE TO AND FROM THE PLACE WHERE HE IS TO PERFORM
ACTUAL WORK IS NOT REGARDED AS AN INCIDENTAL DUTY WHICH IS ITSELF TO BE
REGARDED AS WORK AND COMPENSABLE AS OVERTIME. B-178241, MAY 25, 1973.
ACCORDINGLY, THE PREVIOUS DISALLOWANCE OF MR. PRESCOTT'S CLAIM MUST BE
SUSTAINED.
AS TO MR. PRESCOTT'S STATEMENT THAT HE WAS NOT TOLD OF THE
AVAILABILITY OF PER DIEM UNTIL 2 YEARS AFTER HE HAD STARTED TRAVELING TO
FLAMINGO AND THAT INSTEAD HE WAS ORDERED BY HIS SUPERVISORS TO TRAVEL IN
THE MANNER THAT HE DID, THIS FACT ALONE WOULD NOT MAKE MR. PRESCOTT'S
TRAVEL TIME COMPENSABLE AS OVERTIME SINCE THE TRAVEL DID NOT MEET THE
CRITERIA DISCUSSED ABOVE. FURTHER, IT IS NOTED THAT THE ADMINISTRATIVE
REPORT INDICATES THAT MR. PRESCOTT WAS OFFERED PER DIEM ON SEVERAL
OCCASIONS FROM THE TIME HE WAS FIRST ASSIGNED DUTY AT FLAMINGO.
AS TO MR. PRESCOTT'S REQUEST FOR ADVICE REGARDING FURTHER APPEAL OF
HIS CLAIM, WE POINT OUT THAT THE DECISIONS OF THIS OFFICE ARE BINDING
UPON THE EXECUTIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT AND THE
LAW PROVIDES NO FURTHER ADMINISTRATIVE APPEAL FROM DECISIONS OF THE
COMPTROLLER GENERAL. AS TO MATTERS COGNIZABLE BY THE UNITED STATES
DISTRICT COURTS AND THE UNITED STATES COURT OF CLAIMS, SEE 28 U.S.C.
1346 AND 1491.
B-181102, B-180720, AUG 15, 1974
HEADNOTES-UNAVAILABLE
ALTHOUGH CONTRACTING AGENCY IS NOT REQUIRED TO ACCEPT EQUIPMENT THAT
DOES NOT MEET PERFORMANCE REQUIREMENTS, SPECIFICATIONS DESIGNATING
IRONER AS CHEST-TYPE VERSUS ROLL-TYPE IS INAPPROPRIATE WHEN AGENCY IS
CAPABLE OF STATING ITS MINIMUM NEEDS IN TERMS OF PERFORMANCE
SPECIFICATIONS WHICH MAY BE SATISFIED BY ROLL-TYPE IRONER.
CHARLES J. DISPENZA & ASSOCIATES; CHICAGO DRYER COMPANY: MCCABE
CORPORATION:
THE PROTESTS IN THIS CASE ARE AGAINST THE ALLEGED RESTRICTIVENESS OF
VETERANS ADMINISTRATION (VA) SPECIFICATION X-1421, AS AMENDED, FOR AN
"IRONER, FLATWORK, LARGE ROLL, COMMERCIAL (APRONLESS) AND VENTILATING
CANOPY. ***" SOLICITATIONS FOR IRONERS AT THREE VA INSTALLATIONS ARE AT
ISSUE: WILKES BARRE, PENNSYLVANIA; LITTLE ROCK, ARKANSAS; AND
BRECKSVILLE, OHIO. ALSO IN QUESTION IS THE VA SIZE CHOICE FOR THE
SPREADER/FEEDER THAT MUST BE COMPATIBLE WITH THE IRONER.
THE GENESIS OF THE PROTESTS IS OUR DECISION B-178508, OCTOBER 23,
1973, CONCERNING AN EARLIER PROTEST AGAINST THE SAME SPECIFICATION BY
CHARLES J. DISPENZA & ASSOCIATES (DISPENZA). IN THAT DECISION, WE
AFFIRMED OUR COMMITMENT TO THE PROPOSITION THAT SPECIFICATIONS SHOULD
PERMIT THE BROADEST FIELD OF COMPETITION TO FULFILL THE LEGITIMATE NEEDS
OF THE GOVERNMENT. WITHIN THIS CONCEPT, IT IS OUR OPINION THAT A
SPECIFICATION THAT DICTATES THE MANNER IN WHICH THE GOVERNMENT'S
REQUIREMENT BE FULFILLED, BEYOND STATING THE GOVERNMENT'S MINIMUM NEED,
IS RESTRICTIVE OF COMPETITION. AS ADVANCED BY VA, ITS ADMINISTRATIVE
PREFERENCE FOR A CHEST-TYPE IRONER TO PRODUCE CONSTANT QUALITY LINENS
THROUGH WRINKLE-FREE OPERATION DID NOT CONSTITUTE, IN OUR OPINION, A
VALID JUSTIFICATION TO IMPOSE A DESIGN REQUIREMENT BEYOND THE STATED
PERFORMANCE REQUIREMENT. WE RECOMMENDED THAT THE REQUIREMENT IN THE VA
SPECIFICATION FOR A CHEST-TYPE IRONER BE REVIEWED TO PROVIDE A
COMPETITIVE OPPORTUNITY TO THOSE FIRMS THAT MIGHT MEET THE PERFORMANCE
REQUIREMENT OF 900 SHEETS PER HOUR, USING A METHOD OTHER THAN
CHEST-TYPE, WHILE STILL MAINTIINING QUALITY STANDARDS.
SUBSEQUENT TO B-178508, SUPRA, THE VA ISSUED THE PROTESTED
SOLICITATIONS INCORPORATING VA SPECIFICATION X-1421, APPARENTLY WITHOUT
CONSIDERATION OF OUR RECOMMENDATION. THE SPREADER/FEEDER AND IRONER
WERE REQUIRED AS A COMPATIBLE COMBINATION. THE SELECTION OF THE SIZE 2
SPREADER/FEEDER ELIMINATED THE USE OF THE MCCABE SPREADER/FEEDER, SIZE
1, WHICH IS COMPATIBLE WITH THE TITAN IRONER MANUFACTURED BY THE CHICAGO
DRYER COMPANY (CHICAGO). INASMUCH AS DISPENZA HAS BID ON THE BASIS OF
FURNISHING THE CHICAGO IRONER WITH THE MCCABE SPREADER/FEEDER, BOTH OF
THOSE FIRMS HAVE JOINED IN THE PROTESTS. WHILE IT WAS ALLEGED THAT
AMERICAN LAUNDRY MACHINERY WAS THE SOLE MANUFACTURER OF CHEST-TYPE
IRONERS, WE WERE INFORMED AT THE CONFERENCE HELD AT OUR OFFICE, PURSUANT
TO SECTION 20.9 OF GAO'S INTERIM BID PROTEST PROCEDURES AND STANDARDS,
THAT SUPER LAUNDRY MACHINERY CO., INC., HAD ACQUIRED THE MANUFACTURING
RIGHTS TO SUCH EQUIPMENT FROM AMETEK, AFTER IT CEASED ITS OPERATIONS IN
THE FIELD. WE NOTE THIS TO DISPEL THE NOTION OF SINGLE SOURCE OF
SUPPLY.
IN ADDITION TO THE ALLEGED SPACE LIMITATIONS IN THE VA HOSPITAL
LAUNDRIES, THE VA DIRECTOR, BUILDING MANAGEMENT SERVICE STATED,
CONCERNING THE MCCABE SPREADER/FEEDER, THAT THEY HAD:
"*** NOT PROVEN SATISFACTORY REGARDING BOTH QUALITY AND QUANTITY OF
FINISHED WORK WHEN USED IN CONJUNCTION WITH EITHER COMBINATION
FOLDER/CROSSFOLDERS OR FOLDERS WITH SEPARATE CROSSFOLDERS. *** PROBLEMS
WITH THIS EQUIPMENT IS BEST ILLUSTRATED BY THE FACT THAT OF THE 21
MACHINES PURCHASED BY THE VETERANS ADMINISTRATION IN THE PAST, ONLY TWO
STATIONS, TO OUR KNOWLEDGE, ARE STILL USING THE EQUIPMENT.
"*** ALSO, WE HAVE NOT HAD THE OPPORTUNITY TO OBSERVE OPERATION OF
THE NEW TYPE MACHINE TO DETERMINE IF THERE ARE SUFFICIENT IMPROVEMENTS
IN THE QUALITY AND QUANTITY OF THE WORK IT WILL PRODUCE TO JUSTIFY ITS
PROCUREMENT."
AT THE CONFERENCE HELD AT OUR OFFICE, MCCABE SUBMITTED A LIST OF ITS
SPREADER/FEEDERS PURCHASED BY VA AND STILL IN USE. IN LIGHT OF THIS
INFORMATION, VA OFFICIALS AGREED TO REEVALUATE THEIR POSITION THROUGH
INSPECTION OF THE MACHINES. IT WAS FURTHER AGREED THAT IF THE MACHINES
WERE OPERATIONALLY CAPABLE OF MEETING THE AGENCY NEEDS THE VA WOULD
ACCEPT THEM AS SATISFYING THEIR SPECIFICATIONS FOR SPREADER/FEEDERS.
PENDING THIS ACTION, MCCABE INDICATED THAT ITS PROTEST HAD BEEN
SATISFIED AND THAT NO FURTHER ACTION NEED BY TAKEN BY OUR OFFICE.
CONCERNING THE CHEST-TYPE VERSUS ROLL-TYPE IRONER, THE VA ASSERTS
THAT THE ROLL-TYPE IRONER OFFERED BY DISPENZA (THE CHICAGO TITAN),
PRODUCES INFERIOR QUALITY FLATWORK. THE DIFFERENCE IS NOTED
PARTICULARLY BY VA WHEN WORKING WITH 100-PERCENT COTTON MATERIAL OR
HEAVIER WEIGHTED MATERIAL.
"ON THE HEATED ROLL-TYPE IRONER, MATERIAL IS HELD AGAINST HEATED
ROLLS AS IT PASSES THROUGH THE MACHINE BY A SERIES OF BELTS. PRESSURE
APPLIED BY THESE BELTS IS NOT ADEQUATE TO COMPLETELY IRON THE MATERIAL
AND RESULTS ARE PRIMARILY A DRYING PROCESS. THE EXCEPTION TO THIS IS
LARGE PIECE FLATWORK SUCH AS SHEETS WHERE A STRETCHING OUT EFFECT IS
OBTAINED BY SLIGHTLY INCREASED SPEED OF EACH SUBSEQUENT ROLL. THIS
RESULTS IN SOME IMPROVEMENT IN THE QUALITY, ESPECIALLY WITH REGARD TO
SHEETS MADE OF POLYESTER/COTTON BLEND MATERIALS. THE STRETCHING OUT
EFFECT IS NOT ADEQUATE TO SATISFACTORILY REMOVE WRINKLES FROM 100%
COTTON SHEETS OR ITEMS MADE OF HEAVIER WEIGHT MATERIAL SUCH AS TABLE
CLOTHS. THIS STRETCHING EFFECT IS NOT ACHIEVED FOR SMALLER ITEMS WHICH
WILL NOT EXCEED OVER MORE THAN ONE ROLL THEREFORE WRINKLES ARE NOT
SATISFACTORILY REMOVED FROM THESE SMALLER ITEMS. THE QUALITY OF HEAVIER
WEIGHT AND SMALL ITEMS CAN BE IMPROVED SOME BY REDUCING THE SPEED OF THE
HEATED ROLL-TYPE IRONER BELOW WHAT IS NORMAL SPEED FOR A CHEST-TYPE
MACHINE. THE VALUE OF THIS LIMITED IMPROVEMENT IN QUALITY, HOWEVER,
DOES NOT JUSTIFY THE REDUCTION IN PRODUCTIVITY WHICH RESULTS FROM THE
REDUCED SPEED OF THE IRONER.
"ALL MATERIAL PASSING THROUGH THE CHEST-TYPE IRONER IS UNDER HIGH
PRESSURE BETWEEN THE ROLLS AND A HEATED CHEST. THIS ASSURES THAT ALL
ITEMS ARE SATISFACTORILY IRONED PLUS THE PRESSURE AGAINST THE HEATED
CHEST ASSURES OPTIMUM DRYING CAPABILITIES.
"ALL REUSABLE SURGICAL LINENS IN VA HOSPITALS ARE MADE OF 100% COTTON
WITH MANY OF THESE ITEMS DOUBLE THICKNESS. ADDITIONALLY, A LARGE
MAJORITY OF GENERAL USE LINENS ARE ALSO 100% COTTON. FOR THE ABOVE
STATED REASONS, A HEATED ROLL-TYPE IRONER WOULD ADVERSELY AFFECT BOTH
THE QUALITY AND QUANTITY OF FLATWORK PROCESSED, ESPECIALLY WITH REGARD
TO SMALL PIECES AND ITEMS HEAVIER THAN SINGLE THICKNESS POLYESTER/COTTON
BLEND SHEETING."
THE VA NOTES THAT THERE IS NO REQUIREMENT THAT THE GOVERNMENT
PURCHASE EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE
CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S LEGITIMATE NEEDS,
CITING B-172903, JULY 6, 1971. IN VA'S OPINION, THE FOREGOING
CONSTITUTES A VALID NEED OF THE AGENCY, THEREBY RENDERING THE
SPECIFICATION SUFFICIENT.
REFERRING AGAIN TO OUR DECISION B-178508, SUPRA, IT SHOULD BE NOTED
THAT WE CONCLUDED THE REQUIREMENT FOR A CHEST-TYPE IRONER MAY HAVE
UNDULY RESTRICTED COMPETITION ABSENT ANY FURTHER JUSTIFICATION
DEMONSTRATING THAT ANY OTHER TYPE WOULD NOT BE ABLE TO PROVIDE
WRINKLE-FREE FLATWORK. VA'S JUSTIFICATION AS PRESENTED HERE, AGAIN
CENTERS ON THE ABILITY OF THE CHEST-TYPE IRONER TO BETTER REMOVE
WRINKLES FROM ALL COTTON AND HEAVIER WEIGHT MATERIAL. IN ESSENCE, THIS
IS THE SAME ARGUMENT ADVANCED IN B-178508, SUPRA, WHICH WE DID NOT
BELIEVE WAS AMPLE JUSTIFICATION. WE CONTINUE TO BE OF THE SAME OPINION.
HOWEVER, VA NOW ASSERTS FURTHER THAT THE HEATED ROLL-TYPE IRONER IS
INCAPABLE OF SATISFACTORY PERFORMANCE ON THE TYPE OF MATERIAL WHICH IT
WILL BE REQUIRED TO IRON MOST OFTEN.
BE IT 900 OR 600 SHEETS PER HOUR REQUIRED TO BE IRONED BY THE MACHINE
- THE QUANTITY BEING FOR DETERMINATION BY THE VA - THE QUALITY OF THE
IRONING OF THE LINEN CAN BE ASCERTAINED BY INSPECTION OF THE PERFORMANCE
OF THE OFFERED IRONERS AT FUNCTIONING INSTALLATIONS. IN PART, THE
QUALITY AND QUANTITY OF FLATWORK PRODUCED IS A FUNCTION OF THE
CAPABILITY OF THE INDIVIDUALS OPERATING THE MACHINES. HOWEVER, WE
BELIEVE THAT THE CONDITIONS OF THE INSPECTION ARE MATTERS TO BE RESOLVED
BY THE VA AND PROTESTERS.
WE BELIEVE THAT THE MATTERS PRESENTLY BEING ARGUED BEFORE OUR OFFICE
CAN PROPERLY BE RESOLVED BY VA AGAIN REVIEWING ITS REQUIREMENTS IN LIGHT
OF WHAT WAS STATED IN B-178508, SUPRA. WE DID NOT STATE THAT VA WAS
REQUIRED TO ACCEPT EQUIPMENT THAT COULD NOT MEET ITS PERFORMANCE
REQUIREMENTS AND MINIMUM QUALITY STANDARDS. RATHER, IT IS OUR VIEW THAT
IT IS INAPPROPRIATE TO STATE WHETHER THE IRONER IS TO BE CHEST OR
ROLL-TYPE, THE SPECIFICATIONS OF PERFORMANCE AND QUALITY REQUIREMENTS
BEING THE MINIMUM NEED OF THE VA. AGAIN WE NOTE THAT SECTION 6.4 OF VA
SPECIFICATION X-1421 PROVIDES VA WITH THE OPPORTUNITY TO DETERMINE
WHETHER THE PROFFERED EQUIPMENT WILL MEET ITS NEEDS THROUGH ONSITE
INSPECTIONS.
IT IS RECOMMENDED THAT APPROPRIATE CORRECTIVE ACTION BE TAKEN TO
CONFORM TO THE FOREGOING.
B-181585, AUG 15, 1974
HEADNOTES-UNAVAILABLE
WHERE FOREIGN SERVICE OFFICER RETIRES FROM LAST POST OF DUTY AT
WASHINGTON, D.C., NO AUTHORITY EXISTS FOR REIMBURSEMENT OF COSTS OF
TRANSPORTING HIS HOUSEHOLD EFFECTS FROM STORAGE AT LANDOVER, MARYLAND,
TO ARLINGTON, VIRGINIA. EXPENSE OF MOVEMENT OF HOUSEHOLD EFFECTS FROM
STORAGE TO RESIDENCE WHERE NO TRAVEL OR TRANSPORTATION IS AUTHORIZED OR
APPROVED AND WHERE POINTS OF ORIGIN AND DESTINATION ARE IN THE SAME
METROPOLITAN AREA MAY NOT BE REIMBURSED.
BELA ZEMPLENY - TRANSPORT OF HOUSEHOLD GOODS IN SAME METROPOLITAN
AREA:
THIS IS AN APPEAL BY MR. BELA ZEMPLENY, A RETIRED EMPLOYEE OF THE
UNITED STATES INFORMATION AGENCY (USIA) FROM A SETTLEMENT OF OUR
TRANSPORTATION AND CLAIMS DIVISION DATED APRIL 8, 1974, DENYING
REIMBURSEMENT FOR THE TRANSPORTATION OF HIS HOUSEHOLD EFFECTS FROM
STORAGE AT LANDOVER, MARYLAND, TO HIS RETIREMENT RESIDENCE IN ARLINGTON,
VIRGINIA.
FOLLOWING DENIAL OF HIS CLAIM BY THE USIA, MR. ZEMPLENY, AT THE
SUGGESTION OF THAT AGENCY, PREPARED A VOUCHER DATED MARCH 3, 1973, FOR
REIMBURSEMENT OF THE TRANSPORTATION EXPENSES WHICH WERE INCURRED
DECEMBER 18, 1972. THE VOUCHER WAS THEN FORWARDED TO THIS OFFICE
ACCOMPANIED BY AN AGENCY REPORT EXPLAINING THE REASON FOR ADMINISTRATIVE
DENIAL OF THE CLAIM. THE REASON WAS THAT, "SINCE MR. ZEMPLENY'S LAST
DUTY POST WAS WASHINGTON, D.C. AND HE CHOSE TO RETIRE IN ARLINGTON,
VIRGINIA (METROPOLITAN AREA OF WASHINGTON) THERE WAS NO OFFICIAL TRAVEL
OR TRANSPORTATION INVOLVED AND NONE WAS AUTHORIZED." IN THIS CONNECTION
WE NOTE THAT MR. ZEMPLENY'S VOUCHER SHOWS, IN THE SECTION ENTITLED
"STATEMENT OF GOVERNMENT FURNISHED TRANSPORTATION" THE WORD "NONE."
THE GOVERNING REGULATIONS IN THIS MATTER ARE FOUND IN VOLUME 6,
FOREIGN AFFAIRS MANUAL (FAM). SECTION 125.9 OF THE REGULATIONS PROVIDES
AS FOLLOWS, WITH RESPECT TO POINTS BETWEEN WHICH OFFICIAL TRAVEL AND
TRANSPORTATION MAY BE AUTHORIZED:
"125.9 MILITARY FURLOUGH, RESIGNATION, RETIREMENT AND OTHER
SEPARATIONS.
FROM POST OR ANY PLACE WHERE PRESENCE IS DUE TO GOVERNMENT ORDERS TO
DESIGNATED PLACE OF RESIDENCE IN THE UNITED STATES, ITS POSSESSIONS, OR
THE COMMONWEALTH OF PUERTO RICO, OR, IN THE CASE OF LOCAL EMPLOYEES, TO
A DESIGNATED PLACE OF RESIDENCE AT THE TIME OF APPOINTMENT."
SECTION 121.2 OF THE SAME REGULATIONS PROVIDES, WITH RESPECT TO
AUTHORIZATION AND APPROVAL OF TRAVEL OF EMPLOYEES OF THE USIA, IN
PERTINENT PART, AS FOLLOWS:
"A. THE FOLLOWING TYPES OF TRAVEL OR TRAVEL EXPENSES OF USIA FOREIGN
SERVICE EMPLOYEES MUST BE AUTHORIZED OR APPROVED BY WASHINGTON:
"(1) TRAVEL, TRANSPORTATION OF EFFECTS, AND RELATED ITEMS FOR TRAVEL
OF AGENCY PERSONNEL AND THEIR DEPENDENTS IN CONNECTION WITH PERSONNEL
ACTIONS ***."
AS NOTED ABOVE, THE TRANSPORTATION OF MR. ZEMPLENY'S EFFECTS WAS NOT
AUTHORIZED OR APPROVED AS REQUIRED BY THE ABOVE-CITED REGULATIONS.
IN ANALAGOUS CASES INVOLVING MILITARY PERSONNEL FOR WHOM THE LAW AND
REGULATIONS GOVERNING MOVEMENT OF HOUSEHOLD EFFECTS IS SIMILAR, WE HAVE
HELD THAT NO AUTHORITY EXISTS FOR PAYMENT OF EXPENSES OF "HAULING OF
HOUSEHOLD EFFECTS FROM ONE LOCATION TO ANOTHER AT THE SAME STATION OR
FROM ONE RESIDENCE TO ANOTHER IN THE SAME CITY OR ADJACENT AREA." 27
COMP. GEN. 274 (1947) CITING PRECEDENT CASES. SEE, ALSO B-77019 (JUNE
30, 1946).
IN A CASE INVOLVING THE TRANSFER OF OFFICIAL STATION OF A CIVILIAN
EMPLOYEE OF THE DEPARTMENT OF COMMERCE FROM OAKLAND, CALIFORNIA, TO SAN
FRANCISCO, CALIFORNIA, WHERE THE HOUSEHOLD EFFECTS OF THE EMPLOYEE WERE
ALREADY IN STORAGE IN SAN FRANCISCO, WE DENIED REIMBURSEMENT FOR THE
COST OF TRANSPORTATION FROM STORAGE TO RESIDENCE. THAT DECISION, 26
COMP. GEN. 952 (1947) STATED AT PAGE 954:
"*** IT HAS BEEN THE ESTABLISHED RULE FOR YEARS THAT THE MOVEMENT OF
HOUSEHOLD EFFECTS FROM ONE PLACE TO ANOTHER WITHIN THE SAME CITY,
INCLUDING MOVEMENT FROM STORAGE TO PLACE OF RESIDENCE, DOES NOT
CONSTITUTE THE SHIPMENT OF HOUSEHOLD EFFECTS SUCH AS CONTEMPLATED BY LAW
AND REGULATIONS BUT IS A PERSONAL EXPENSE NOT PAYABLE FROM APPROPRIATED
FUNDS. 9 COMP. GEN. 377; 13 ID. 210; B-42432, JUNE 26, 1944;
B-43887, SEPTEMBER 21, 1944; AND B-49161, AUGUST 21, 1945.
"ACCORDINGLY, AS MR. GWYTHER'S HOUSEHOLD EFFECTS ALREADY WERE LOCATED
IN SAN FRANCISCO WHEN HIS OFFICIAL STATION WAS CHANGED TO THAT CITY
DECEMBER 3, 1946, NO SHIPMENT OF HIS HOUSEHOLD EFFECTS WAS INVOLVED
WITHIN CONTEMPLATION OF THE REGULATIONS, AND ANY EXPENSE OF MOVING SUCH
EFFECTS FROM STORAGE AT ONE POINT TO HIS RESIDENCE WITHIN THE LIMITS OF
HIS OFFICIAL STATION AS DEFINED IN THE ABOVE-QUOTED REGULATION
CONSTITUTES A PERSONAL EXPENSE, NO PART OF WHICH MAY BE PAID FROM
APPROPRIATED FUNDS."
FOR THE REASONS STATED ABOVE, WE AFFIRM THE DISALLOWANCE OF MR.
ZEMPLENY'S CLAIM AND THE SETTLEMENT OF OUR TRANSPORTATION AND CLAIMS
DIVISION.
B-181884, AUG 15, 1974
HEADNOTES-UNAVAILABLE
BIDDER, WHO MISTAKENLY SUBMITTED DUPLICATE BIDS OF $1,218 AND $238 ON
USED TRUCK IN SURPLUS SALE AND WHO WAS AWARDED TRUCK FOR $1,218, MAY
HAVE CONTRACT REFORMED BY DELETING TRUCK THEREFROM. ORDINARILY WIDE
RANGE OF BID PRICES IN SURPLUS SALE IS NOT DEEMED SUFFICIENT TO PUT
CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF MISTAKE IN BID: HOWEVER,
GAO AGREES WITH ADMINISTRATIVE POSITION THAT CONTRACTING OFFICER WAS ON
CONSTRUCTIVE NOTICE, UNDER CIRCUMSTANCES WHERE NEXT HIGH BID WAS $388,
TRUCK'S CURRENT MARKET APPRAISAL WAS $400 AND CONTRACTING OFFICER
ACTUALLY DID SUSPECT ERROR BUT MISTAKENLY FAILED TO VERIFY.
MEMPHIS EQUIPMENT COMPANY:
PURSUANT TO SALE NO. 27-4311, THE DEFENSE PROPERTY DISPOSAL SERVICE,
DEFENSE SUPPLY AGENCY, COLUMBUS, OHIO, INVITED BIDS FOR VARIOUS SURPLUS
GOVERNMENT VEHICLES AND VEHICULAR EQUIPMENT. THE MEMPHIS EQUIPMENT
COMPANY (MEMPHIS) SUBMITTED BIDS ON 31 DIFFERENT ITEMS, INCLUDING
DUPLICATE BIDS ON ITEM 283, WHICH WAS LISTED AS A USED STEP VAN TRUCK
DESCRIBED AS BEING IN POOR CONDITION AND REQUIRING REPAIRS, IN THE
AMOUNTS OF $1,218 AND $238. INASMUCH AS MEMPHIS' $1,218 BID WAS THE
HIGHEST RECEIVED, MEMPHIS WAS AWARDED ITEM 283 AS PART OF SALE CONTRACT
NO. 27-4311-335.
MEMPHIS HAS REQUESTED THAT THIS CONTRACT BE REFORMED BY DELETING ITEM
283, DUE TO A MISTAKE IN ITS BID. MEMPHIS CLAIMS THAT IT INTENDED TO
BID $238 FOR ITEM 283 AND THE $1,218 BID WAS INTENDED FOR ITEM 286.
FROM THE RECORD BEFORE US, WE ARE PURSUADED THAT MEMPHIS MADE A BONA
FIDE MISTAKE IN BID. HOWEVER, REFORMATION OF THIS CONTRACT CAN ONLY BE
ALLOWED, IF THE CONTRACTING OFFICER HAD ACTUAL OR CONSTRUCTIVE NOTICE
THAT MEMPHIS HAD MADE A MISTAKE IN BID. ORDINARILY, A WIDE RANGE OF BID
PRICES IN SURPLUS PROPERTY SALES IS NOT DEEMED TO BE SUFFICIENT TO PUT
THE CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF ERROR BECAUSE OF THE
MANY POSSIBLE USES TO WHICH THE PROPERTY MAY BE PUT. WENDER PRESSES,
INC. V. UNITED STATES, 170 CT. CL. 483 (1965); B-174940, APRIL 20,
1972; B-179305, OCTOBER 23, 1973.
HOWEVER, IN THE PRESENT CASE, MEMPHIS' DUPLICATE $1,218 BID FOR ITEM
283 FAR EXCEEDED THE NEXT HIGH BID OF $388.91 AND THE TRUCK'S $400
CURRENT MARKET APPRAISAL. MOREOVER, THE SALES CONTRACTING OFFICER DID,
IN FACT, SUSPECT AN ERROR IN MEMPHIS' DUPLICATE BID ON ITEM 283 AND MADE
A NOTATION TO ASK MEMPHIS FOR VERIFICATION OF ITS BID PRICE. HOWEVER,
DUE TO A CLERICAL ERROR, SUCH VERIFICATION WAS NEVER ACTUALLY REQUESTED.
UNDER THESE CIRCUMSTANCES, WE BELIEVE THAT THE SALES CONTRACTING
OFFICER WAS ON CONSTRUCTIVE (IF NOT ACTUAL) NOTICE OF A MISTAKE IN
MEMPHIS' BID. SEE B-176123, JULY 3, 1972; B-177167, OCTOBER 30, 1972;
B-180673, APRIL 2, 1974; B-180824, APRIL 12, 1974.
ACCORDINGLY, WE AGREE WITH THE ADMINISTRATIVE RECOMMENDATION THAT
THIS CONTRACT BE REFORMED BY DELETING ITEM 283 THEREFROM, WITHOUT
LIABILITY TO MEMPHIS.
B-161457, AUG 14, 1974
HEADNOTES-UNAVAILABLE
SUBJECT:
INCREASE IN AMOUNT OF IRREGULARITIES IN ACCOUNTS OF ACCOUNTABLE
OFFICERS WHICH MAY BE ADMINISTRATIVELY RESOLVED.
HEADS OF FEDERAL DEPARTMENTS AND AGENCIES:
OUR LETTER OF AUGUST 1, 1969, B-161457, TO HEADS OF FEDERAL
DEPARTMENTS AND AGENCIES CONTAINED THE FOLLOWING SECTION ON PAGE 4:
"ADMINISTRATIVE RESOLUTION OF IRREGULARITIES
"AN IRREGULARITY ARISING FROM A SINGLE INCIDENT OR SERIES OF SIMILAR
INCIDENTS OCCURRING ABOUT THE SAME TIME AMOUNTING TO LESS THAN $150 MAY
BE RESOLVED BY ADMINISTRATIVE ACTION APPROPRIATE TO THE CIRCUMSTANCES.
SUCH CASES WILL BE PROPERLY DOCUMENTED AND AVAILABLE FOR GAO REVIEW ON A
SITE AUDIT BASIS. A CENTRAL CONTROL RECORD SHALL BE MAINTAINED BY EACH
DEPARTMENT AND AGENCY OF ALL SUCH ACTIONS.
"THE PROVISIONS OF THIS SECTION DO NOT APPLY TO EXCEPTIONS OR CHARGES
RAISED BY THE GAO."
EFFECTIVE IMMEDIATELY UPON ISSUANCE OF THIS LETTER, THE AMOUNT OF
$150 IN THE QUOTED SECTION IS INCREASED TO $500.
AN APPROPRIATE AMENDMENT TO 7 GAO 28.14 WILL BE FORTHCOMING.
B-172531, AUG 14, 1974
HEADNOTES-UNAVAILABLE
SINCE GAO IS NOT ONE OF THE GOVERNMENT AGENCIES AUTHORIZED BY PUBLIC
LAW 85-804 AND IMPLEMENTING EXECUTIVE ORDERS TO GRANT EXTRAORDINARY
CONTRACTUAL RELIEF TO FACILITATE THE NATIONAL DEFENSE, THIS OFFICE DOES
NOT HAVE JURISDICTION TO CONSIDER CLAIM BY CONTRACTOR THAT IT IS
ENTITLED UNDER PUBLIC LAW 85-804, TO ADDITIONAL COSTS OF CONTRACT
PERFORMANCE RESULTING FROM GOVERNMENT LIFTING PRICE CONTROLS AND
RESTRICTIONS.
TRIO CHEMICAL WORKS:
THIS MATTER CONCERNS CONTRACTS GS-00S-17793 AND GS-03S-40052 UNDER
WHICH TRIO CHEMICAL WORKS (TRIO) SUPPLIED THE GOVERNMENT WITH 1 POUND
CANS OF AUTOMOBILE WAX (PASTE), P-W-120B, TYPE II. THE CONTRACTOR
CONTENDS THAT ADDITIONAL COSTS RESULTED FROM THE GOVERNMENT'S ACTION OF
LIFTING PRICE RESTRICTIONS IN EFFECT AT THE TIME OF AWARD AND THAT UNDER
PUBLIC LAW 85-804 IT IS ENTITLED TO RECEIVE FROM THE GOVERNMENT THE
RESULTING ADDITIONAL COSTS OF PERFORMING THE GOVERNMENT CONTRACT.
PUBLIC LAW 85-804 PROVIDES THAT THE PRESIDENT MAY AUTHORIZE ANY
DEPARTMENT OR AGENCY OF THE GOVERNMENT WHICH EXERCISES FUNCTIONS IN
CONNECTION WITH THE NATIONAL DEFENSE, TO ENTER INTO CONTRACTS OR INTO
AMENDMENTS OR MODIFICATIONS OF CONTRACTS WITHOUT REGARD TO OTHER
PROVISIONS OF LAW RELATING TO THE MAKING, PERFORMANCE, AMENDMENT, OR
MODIFICATION OF CONTRACTS, WHENEVER HE DEEMS THAT SUCH ACTION WOULD
FACILITATE THE NATIONAL DEFENSE. THIS ACT HAS BEEN IMPLEMENTED BY
EXECUTIVE ORDER 10789, OF NOVEMBER 14, 1958, AS AMENDED BY EXECUTIVE
ORDER 11051, DATED SEPTEMBER 27, 1962, WHICH GRANTS AUTHORITY TO VARIOUS
GOVERNMENT AGENCIES, TO USE THE ACT.
OUR OFFICE IS NOT ONE OF THE GOVERNMENT AGENCIES AUTHORIZED BY PUBLIC
LAW 85-804 AND IMPLEMENTING EXECUTIVE ORDERS TO GRANT EXTRAORDINARY
CONTRACTUAL RELIEF TO FACILITATE THE NATIONAL DEFENSE. DENIALS OF
CLAIMS BY GOVERNMENT AGENCIES PURSUANT TO THE AUTHORITY OF PUBLIC LAW
85-804 ARE NOT SUBJECT TO REVIEW BY OUR OFFICE SO FAR AS ENTITLEMENT TO
THE RELIEF AUTHORIZED BY THE STATUTE IS CONCERNED. B-157845, DECEMBER
10, 1965.
THEREFORE, THIS OFFICE DOES NOT HAVE JURISDICTION TO ENTERTAIN THE
REQUEST FOR RELIEF IN THIS MATTER.
B-176994, AUG 14, 1974
HEADNOTES-UNAVAILABLE
CLAIM BY UNITED BRONX PARENTS ASSOCIATION (SPONSOR) FOR REIMBURSEMENT
OF AMOUNT IN ADDITION TO AMOUNTS PREVIOUSLY PAID FOR MEALS PROVIDED BY
ARA (CATERER) UNDER 1971 SPECIAL FOOD SERVICE PROGRAM FOR CHILDREN
(SUMMER OPERATIONS) PURSUANT TO SECTION 13 OF NATIONAL SCHOOL LUNCH ACT,
42 U.S.C. 1761, MAY NOT BE ALLOWED, SINCE PAYMENT WOULD NOT BE
JUSTIFIED WHERE ONLY PERTINENT ADDITIONAL EVIDENCE AS TO NUMBER OF MEALS
PROVIDED IS AFFIDAVIT EXECUTED MORE THAN 2 YEARS AFTERWARD BY FORMER
GENERAL MANAGER IN CHARGE OF ARA'S PRODUCTION FACILITY IN WHICH HE
ESTIMATED THAT 4,000 OR 5,000 DOZEN ADDITIONAL SANDWICH ROLLS HAD BEEN
PROVIDED FOR PROGRAM.
CLAIM OF UNITED BRONX PARENTS ASSOCIATION:
THIS DECISION TO THE SECRETARY OF AGRICULTURE IS IN RESPONSE TO THE
REQUEST DATED JANUARY 23, 1974, BY THE ASSISTANT SECRETARY, DEPARTMENT
OF AGRICULTURE FOR OUR ADVICE ON A CLAIM FOR ADDITIONAL REIMBURSEMENT
SUBMITTED BY THE UNITED BRONX PARENTS ASSOCIATION FOR MEALS DELIVERED BY
ARA SERVICES, INC., A CATERER, UNDER THE 1971 SPECIAL SUMMER FOOD
SERVICE PROGRAM IN NEW YORK CITY.
IN OUR DECISION B-176994, DECEMBER 5, 1972, WE DID NOT OBJECT TO THE
PAYMENT OF THAT PORTION OF THE CLAIM FOR ADDITIONAL REIMBURSEMENT WHICH
WAS REASONABLY SUBSTANTIATED IN THE OPINION OF THE OFFICE OF INSPECTOR
GENERAL, OF THE DEPARTMENT OF AGRICULTURE IN THE AMOUNT OF $521,427.
THE UNITED BRONX PARENTS ASSOCIATION AGAIN SEEKS REIMBURSEMENT OF THE
BALANCE OF ITS CLAIM TO THE EXTENT OF $108,282.72. IT IS STATED IN THE
ASSISTANT SECRETARY'S LETTER OF JANUARY 23, 1974, THAT ARA HAS SUBMITTED
A COMPROMISE PROPOSAL TO SEATTLE FOR HALF OF THE REMAINING REIMBURSEMENT
THEY FEEL IS DUE THEM FOR THE SUMMER OF 1971. THE AMOUNT NOW CLAIMED
REPRESENTS THAT COMPROMISE FIGURE.
AS RELATED IN OUR PRIOR DECISION, THE SPECIAL FOOD SERVICE PROGRAM
FOR CHILDREN IS AUTHORIZED BY SECTION 13 OF THE NATIONAL SCHOOL LUNCH
ACT, 42 U.S.C. 1761. IT PROVIDES THAT THE SECRETARY OF AGRICULTURE IS
TO FORMULATE AND CARRY OUT A PROGRAM TO ASSIST STATES IN NONPROFIT FOOD
PROGRAMS FOR CHILDREN IN SERVICE INSTITUTIONS AS DEFINED IN THAT
SECTION.
IN 1971, THE FOOD AND NUTRITION SERVICE, DEPARTMENT OF AGRICULTURE,
ENTERED INTO AN AGREEMENT WITH THE STATE OF NEW YORK FOR THE
ADMINISTRATION OF THE PROGRAM IN THAT STATE. THE NEW YORK STATE
DEPARTMENT OF EDUCATION CONTRACTED WITH THE UNITED BRONX PARENTS
ASSOCIATION, AS A SPONSOR, TO OPERATE THE 1971 SUMMER PROGRAM IN THE NEW
YORK CITY METROPOLITAN AREA. BY CONTRACT WITH THE UNITED BRONX PARENTS
ASSOCIATION, ARA SERVICES, INC., A CATERER, AGREED TO PREPARE AND
DELIVER LUNCHES TO THE SERVING SITES AT 52 CENTS PER LUNCH.
DURING THE COURSE OF ITS PERFORMANCE OF THIS CONTRACT, ARA CLAIMED
THAT IT PREPARED, ASSEMBLED AND DELIVERED A UNITED BRONX PARENTS
ASSOCIATION 6,026,628 COMPLETE MEALS FOR A TOTAL OF $3,133,846.56. (SEE
P. 3, RECLAIM, 1971 UNITED BRONX PARENTS, UNDATED.) THE OFFICE OF THE
INSPECTOR GENERAL, DEPARTMENT OF AGRICULTURE, CONDUCTED AN ADULT (AUDIT
REPORT NO. 60108-12-C) WHICH RECOMMENDED THAT THE SPONSOR'S CLAIM FOR
FEDERAL REIMBURSEMENT BE LIMITED TO $2,420, 408 (4,656,457 LUNCHES TIMES
52 CENTS, LESS $950 FOR LUNCHES SERVED TO UNAUTHORIZED ADULTS). THIS
RECOMMENDATION WAS BASED ON THE EVIDENCE OF THE NUMBER OF LUNCHES
SUBSTANTIATED BY DELIVERY RECEIPTS AND RESULTED IN THE ISSUANCE OF A
CHECK IN THE RECOMMENDED AMOUNT.
SUBSEQUENT TO THE ISSUANCE OF THIS CHECK, THE CATERER SUBMITTED
SECONDARY EVIDENCE TO SHOW THAT ENOUGH FOOD COMPONENTS WERE PURCHASED TO
ASSEMBLE ADDITIONAL LUNCHES WHICH COULD NOT OTHERWISE BE VERIFIED BY
RECEIPTS OF LUNCHES SIGNED BY SITE SUPERVISORS OR SUPPORTING ROUTE
SHEETS. A SECOND AUDIT (AUDIT REPORT NO. 60109-7-C) WAS CONDUCTED BY
THE INSPECTOR GENERAL'S OFFICE WHICH CONCLUDED THAT THERE WAS
SUBSTANTIVE EVIDENCE TO SUPPORT A MAXIMUM OF 5,679,868 LUNCHES FOR AN
ADDITIONAL $521,427 AFTER A DEDUCTION OF $10,746 FOR INSUFFICIENT
MARGARINE. ON THE BASIS OF THIS REPORT, THE DEPARTMENT OF AGRICULTURE
REQUESTED THE CONCURRENCE OF THIS OFFICE OF THE PAYMENT OF $521,427 ON
THIS CLAIM.
IN OUR DECISION OF DECEMBER 5, 1972, WE INDICATED WE WOULD NOT OBJECT
TO THE PAYMENT OF THIS RECOMMENDED SUM OF $521,427, BUT WE DID NOT FIND
THE EVIDENCE SUPPORTING PROPOSED REIMBURSEMENT AS CONCLUSIVE.
NEVERTHELESS, WE TOOK NOTE OF THE EXTENUATING CIRCUMSTANCES, AND THE
INFORMATION DEVELOPED BY THE OFFICE OF THE INSPECTOR-GENERAL AND OTHERS
IN FINDING A REASONABLE BASIS FOR PRESUMING THAT ADDITIONAL LUNCHES WERE
PREPARED AND DELIVERED BY ARA SERVICES, INC. WE CAUTIONED IN THAT
DECISION, HOWEVER, THAT THIS FORM OF EVIDENCE GENERALLY SHOULD NOT BE
RELIED UPON IN DETERMINING THE AMOUNTS PROPERLY PAYABLE.
IN THE PRESENT REQUEST, THE ASSISTANT SECRETARY OF AGRICULTURE ASKS
ADVICE AS TO THE PAYMENT OF AN ADDITIONAL AMOUNT TO THE UNITED BRONX
PARENTS ASSOCIATION BASED ON FURTHER EVIDENCE SUBMITTED BY THE
ASSOCIATION AND FOR OTHER CONSIDERATIONS. SUCH CONSIDERATIONS INCLUDE
THE UNUSUAL AND CUMULATIVE PROBLEMS IN LAUNCHING THE PROGRAM UNDER WHICH
ARA HAD TO OPERATE, THE RECORDS OF ARA FOR LUNCHEON INGREDIENTS WHICH
INDICATE MORE LUNCHES COULD HAVE BEEN PREPARED THAN CREDIT HAS BEEN
GIVEN, THE EXTRA EFFORT USED TO ASSURE LUNCHES WERE DELIVERED AS
ORDERED, AND THE IMPROVED MANAGEMENT AND RECORD-KEEPING OF ARA IN THE
PERFORMANCE OF THE SAME TYPE OF WORK DURING THE FOLLOWING SUMMER OF
1972.
WITH REGARD TO THE RECORDS FOR THE LUNCHES PREPARED BY ARA, THE LAST
AUDIT COULD VERIFY ONLY 418,564 LUNCHES BASED ON THE LEAST PURCHASED
INGREDIENT - SANDWICH ROLLS. IN THE "RECLAIM" SUBMITTED BY THE UNITED
BRONX PARENTS ASSOCIATION WHICH ACCOMPANIED THE LETTER OF THE ASSISTANT
SECRETARY OF AGRICULTURE, ARA SUBMITTED AN AFFIDAVIT OF A FORMER GENERAL
MANAGER (EXHIBIT K) INDICATING THAT MORE SANDWICH ROLLS WERE DELIVERED
TO ARA THAN PREVIOUSLY COULD BE ESTABLISHED. IN THE AFFIDAVIT OF MR.
BERNARD SONKIN, HE ESTIMATED FROM MEMORY SOME 2 YEARS AFTER THE
OCCURRENCE THAT BETWEEN 4,000 AND 5,000 DOZEN FREE SANDWICH ROLLS WERE
DELIVERED BY THE HERMAN'S STAR BAKERIES, ASIDE FROM THEIR REGULAR
DELIVERIES, IN COMPENSATION FOR THE BAKERY NOT BEING ABLE TO MEET ARA'S
SPECIFICATION OF FULLY SPLIT ROLLS. THIS STATEMENT REGARDING THE
DELIVERIES OF SANDWICH ROLLS IS NOT OTHERWISE CORROBORATED IN THE FILE.
IN EXHIBIT J OF THE RECLAIM, THE NUMBER OF LUNCHES BASED ON THE
INGREDIENTS OF MEAT AND CHEESE PLUS SANDWICH ROLLS IS RECOMPUTED ON THE
BASIS OF THE ADDITIONAL SANDWICH ROLLS DELIVERED WHICH CANNOT BE
VERIFIED. IT IS THE POSITION OF ARA THAT EVEN THOUGH IT CANNOT
OTHERWISE ACCOUNT FOR THE OTHER SANDWICH ROLLS ASIDE FROM THE AFFIDAVIT
OF MR. SONKIN, THEY MUST HAVE BEEN SUPPLIED AND USED IN LUNCHES. IT
THEREFORE PRESENTS A CLAIM FOR $108,282.72 WHICH IS FOR ONE-HALF OF THE
REMAINING UNCOMPENSATED LUNCHES IT CLAIMS TO HAVE PREPARED INCLUDING
THOSE WITH SANDWICH ROLLS WHICH CANNOT OTHERWISE BE DOCUMENTED.
THIS OFFICE CANNOT CONCUR WITH THE PROPOSED ADDITIONAL PAYMENT TO THE
UNITED BRONX PARENTS ASSOCIATION BASED ON THE FACTS PRESENTED. AS
STATED IN OUR DECISION OF DECEMBER 5, 1972, EVEN THOUGH THE EVIDENCE WAS
NOT CONCLUSIVE, THERE WAS A REASONABLE BASIS FOR PRESUMING THAT THE
ADDITIONAL LUNCHES FOR WHICH PAYMENT WAS RECOMMENDED AT THAT TIME WERE
PRODUCED AND DELIVERED TO THE SITES. THE ADDITIONAL EVIDENCE NOW
PRESENTED DOES NOT PROVIDE A SIMILAR REASONABLE BASIS FOR THE PAYMENT OF
ANY ADDITIONAL AMOUNT. SPECIFICALLY THE RECOLLECTION OF THE AFFIANT OF
THE RECEIPT OF FOUR TO FIVE THOUSAND DOZEN SANDWICH ROLLS MORE THAN 2
YEARS BEFORE THE EXECUTION OF THE AFFIDAVIT DOES NOT, IN OUR OPINION,
PROVIDE A REASONABLE BASIS FOR THE APPROVAL OF THE PAYMENT OF AN AMOUNT
TO THE BRONX PARENTS ASSOCIATION IN ADDITION TO THAT ALREADY PAID.
ACCORDINGLY THIS OFFICE DOES NOT FIND SUFFICIENT LEGAL JUSTIFICATION
FOR PAYMENT OF THE ADDITIONAL AMOUNT CLAIMED BY THE UNITED BRONX PARENTS
ASSOCIATION.
B-180623, AUG 14, 1974
HEADNOTES-UNAVAILABLE
EMPLOYEE WHO RECLAIMS $300 IN TEMPORARY LODGING AND $50 CHILD CARE
EXPENSES HE PAID HIS MOTHER-IN-LAW WHILE RESIDING IN HER HOME NEAR HIS
NEW OFFICIAL STATION, MAY BE ALLOWED SUCH REASONABLE TEMPORARY LODGING
EXPENSES WHEN ACTUALLY INCURRED AND SUPPORTED BY RECEIPT, BUT CHILD CARE
EXPENSES ARE NOT ALLOWABLE IN THE ABSENCE OF EXTRAORDINARY CIRCUMSTANCES
NOT APPARENT IN THIS CASE.
MICHAEL W. COLLEGE - CHILD CARE AND TEMPORARY LODGING EXPENSES PAID
TO A RELATIVE:
THIS ACTION INVOLVES A REQUEST FOR A DECISION ON ADDITIONAL
INFORMATION SUBMITTED BY MR. MICHAEL W. COLLEGE, AN EMPLOYEE OF THE
BUREAU OF MINES, UNITED STATES DEPARTMENT OF INTERIOR, RECLAIMING $350
IN CHILD CARE AND TEMPORARY LODGING EXPENSES DISALLOWED ON A VOUCHER
SUBMITTED IN CONNECTION WITH HIS CHANGE OF OFFICIAL DUTY STATION FROM
WASHINGTON, D.C., TO PITTSBURGH, PENNSYLVANIA, IN JULY 1973. MR COLLEGE
CONTRACTED ORALLY WITH HIS MOTHER-IN-LAW, MRS. ELIZABETH D. OSBORNE, TO
PROVIDE TEMPORARY QUARTERS IN HER PITTSBURGH, PENNSYLVANIA, RESIDENCE AT
A COST OF $10 PER DAY, WHICH OVER A 30 DAY PERIOD, AMOUNTED TO $300. HE
ALSO ARRANGED WITH MRS. OSBORNE TO PROVIDE CHILD CARE FOR HIS TWO
CHILDREN, AGES 2 AND 4 YEARS, FOR $50 DURING THE SAME PERIOD. THE
QUESTION PRESENTED CONCERNS THE PROPRIETY OF ALLOWING SUCH EXPENSES, IN
THE ABSENCE OF A SHOWING THAT THE MOTHER-IN-LAW INCURRED ADDITIONAL
EXPENSES INCIDENT TO PROVIDING THE AFOREMENTIONED SERVICES.
WITH REGARD TO THE REIMBURSEMENT OF THE EXPENSE OF $300 THE EMPLOYEE
INCURRED IN THE RENTAL OF TEMPORARY LODGING, WE HAVE LONG HELD THAT THE
FACT THAT SUCH QUARTERS WERE OWNED BY A RELATIVE WOULD NOT IMPOSE A BAR
TO ENTITLEMENT SO LONG AS THE EXPENSE CLAIMED WAS ACTUALLY INCURRED,
REASONABLE IN AMOUNT AND SUPPORTED BY A RECEIPT FOR PAYMENT. B-175918,
JUNE 15, 1972, B-174986, MAY 11, 1972. INASMUCH AS THE EVIDENCE
SUBMITTED BY THE EMPLOYEE SATISFIES THE AFOREMENTIONED CONDITIONS AND
THE ACTUAL EXPENSES FOR MEALS AND LODGING DO NOT EXCEED THE MAXIMUM
AMOUNTS ALLOWABLE UNDER PROVISIONS OF SECTION 2-5.4, FEDERAL TRAVEL
REGULATIONS, FPMR 101-7, MAY 1973, THE EMPLOYEE MAY BE REIMBURSED
LODGING EXPENSES IN THE AMOUNT OF $300.
IN REFERENCE TO THE EMPLOYEE'S CLAIM FOR REIMBURSEMENT OF $50 IN
BABYSITTING OR CHILD-CARE FEES PAID TO HIS MOTHER-IN-LAW, SUCH FEES MAY
NOT BE ALLOWED UNDER THE PROVISIONS OF THE FEDERAL TRAVEL REGULATIONS,
FPMR 101-7, MAY 1973.
IN ACCORDANCE WITH THE FOREGOING, MR. COLLEGE'S CLAIM FOR $300 IN
LODGING EXPENSES MAY BE ALLOWED IF OTHERWISE CORRECT.
B-180844, AUG 14, 1974
HEADNOTES-UNAVAILABLE
1. CONTRACT AWARDED TO OFFEROR SUBMITTING LOWEST F.O.B. DESTINATION
PRICE, WHICH IS QUESTIONED ON BASIS THAT EVALUATION SHOULD HAVE INCLUDED
COST OF SHIPPING GOVERNMENT-FURNISHED BLACK POWDER AND ALUMINUM CANS,
WILL NOT BE DISTURBED WHERE COST OF SHIPPING BOTH ITEMS TO SUCCESSFUL
OFFEROR WAS LESS THAN COMPARABLE COST OF SHIPPING TO PROTESTER, COSTS OF
SHIPPING ALUMINUM CANS WERE NOT INCLUDED IN EVALUATION SINCE SUCH COSTS
COULD NOT BE REASONABLY DETERMINED, AND COSTS OF SHIPPING BLACK POWDER
WERE IN FACT INCLUDED IN EVALUATION. MOREOVER, SINCE RFP DID NOT
PROVIDE FOR EVALUATING SHIPPING COSTS OF CANS, IT SHOULD HAVE BEEN
APPARENT PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS THAT SUCH COSTS
WOULD NOT BE FILED UNTIL AFTER AWARD IS UNTIMELY.
2. RFP SHOULD HAVE CLEARLY STATED THAT COSTS OF SHIPPING
GOVERNMENT-FURNISHED BLACK POWER WOULD BE INCLUDED IN EVALUATING F.O.B.
DESTINATION OFFERS; HOWEVER, THIS DOES NOT CONSTITUTE MATERIAL DEFECT
SINCE EVALUATION OF THIS ITEM DID NOT AFFECT SELECTION OF SUCCESSFUL
OFFEROR.
3. WHERE OFFERORS WERE CONTACTED AFTER SUBMISSION OF INITIAL
PROPOSALS FOR PURPOSE OF MAKING CERTAIN CORRECTIONS OF GFM WHICH DID NOT
AFFECT PRICE OR CONTRACT REQUIREMENTS, AWARD MAY NEVERTHELESS BE MADE ON
BASIS OF INITIAL PROPOSALS UNDER ASPR 3-805.1(A)(V), SINCE RULE TO BE
APPLIED IS SAME AS IN DETERMINING WHETHER CHANGE OCCURRING AFTER BEST
AND FINAL OFFERS REQUIRES REOPENING OF NEGOTIATIONS AND IN THAT
SITUATION IT HAS BEEN HELD THAT WHERE CHANGE DID NOT AFFECT RELATIVE
COST STANDING OF OFFERORS, IT WAS NOT ABUSE OF DISCRETION FOR AGENCY TO
DECLINE TO SOLICIT REVISED PROPOSALS. FURTHERMORE, SEE ASPR 3-805.1(B),
WHICH AUTHORIZES CERTAIN INQUIRIES TO OFFERORS FOR PURPOSES OF
CLARIFICATION WITHOUT INVOKING REQUIREMENT FOR NEGOTIATIONS WITH ALL
OFFERORS.
4. ALTHOUGH PROTESTER WAS NOT ADVISED THAT PRICE REVISION SUBMITTED
AFTER DATE FOR RECEIPT OF INITIAL PROPOSALS WAS LATE MODIFICATION, THIS
IRREGULARITY DID NOT AFFECT VALIDITY OF AWARD AS IT DOES NOT APPEAR SUCH
REVISION WAS CONSIDERED BECAUSE DECISION HAD BEEN MADE TO AWARD ON BASIS
OF INITIAL PROPOSALS AND LOW OFFEROR REMAINED LOW EVEN AFTER PROTESTER'S
REVISION.
5. AWARD OF ENTIRE QUANTITY OF ITEM TO ONE OF TWO MOBILIZATION BASE
SUPPLIERS WAS NOT ABUSE OF DISCRETION SINCE THERE IS NO BASIS FOR
QUESTIONING AGENCY DETERMINATIONS THAT QUANTITY WAS NOT LARGE ENOUGH FOR
ECONOMICAL SPLIT BETWEEN TWO OFFERORS AND THAT SELECTED FIRM HAS
CAPABILITIES TO MEET REQUIREMENTS OF MOBILIZATION BASE.
6. GAO DOES NOT FIND ANY VIOLATION OF ASPR 1-1504(A) WHERE PURSUANT
TO SUCH REGULATION RECORD SHOWS THAT CONTRACTING OFFICER OBTAINED
APPROVAL FROM HIGHER AUTHORITY FOR 300 PERCENT OPTION AND DETERMINED
UNUSUAL CIRCUMSTANCES JUSTIFIED SUCH PERCENTAGE. MOREOVER, FACT THAT
OPTION PRICE IS SUBJECT TO ESCALATION FOR LABOR AND MATERIAL COSTS DOES
NOT INVALIDATE OPTION SINCE ESCALATION PROVISION DOES NOT VITIATE
COMPETITIVE ASPECTS OF PROCUREMENT AND ASPR 1-1505(B) RECOGNIZES THE
VALIDITY OF ESCALATION OF OPTION PRICES, SUBJECT ONLY TO CERTAIN
DETERMINATIONS PRIOR TO EXERCISE OF OPTION AND ESCALATION OF PRICES.
ENSIGN BICKFORD COMPANY:
THE ISSUE IN THIS PROTEST IS WHETHER IT WAS PROPER TO AWARD A
CONTRACT FOR A QUANTITY OF 822,450 MK 125 MOD 5 IGNITERS AND ASSOCIATED
DATA FOR 2.75 INCH ROCKET TO BERMITE DIVISION OF WHITTAKER CORPORATION
(BERMITE), UNDER REQUEST FOR PROPOSALS NO. DAAA09-74-R-0056, ISSUED ON
JANUARY 21, 1974, BY THE UNITED STATES ARMY ARMAMENT COMMAND (ARCOM),
ROCK ISLAND, ILLINOIS. FOR THE REASONS STATED BELOW THE PROTEST IS
DENIED.
THE NEGOTIATING AUTHORITY FOR THIS PROCUREMENT WAS 10 U.S.C.
2304(A)(16) AND ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-216,
WHICH PROVIDE FOR AN EXCEPTION TO ADVERTISING REQUIREMENTS FOR PURCHASES
IN THE INTERESTS OF NATIONAL DEFENSE OR INDUSTRIAL MOBILIZATION. THE
SOLICITATION WAS RESTRICTED TO THE TWO APPROVED IGNITER MOBILIZATION
BASE PRODUCERS, ENSIGN BICKFORD COMPANY (EB) AND BERMITE. THE RFP
REQUESTED PRICES F.O.B. ORIGIN AND F.O.B. DESTINATION TO BALDWIN
ELECTRONICS INCORPORATED, EAST CAMDEN, ARKANSAS. THE CLOSING DATE FOR
RECEIPT OF PROPOSALS WAS FEBRUARY 4, 1974.
EB AND BERMITE SUBMITTED PROPOSALS BY THE CLOSING DATE. BY TELEGRAM
DATED FEBRUARY 28, 1974, RECEIVED BY THE PROCURING ACTIVITY ON MARCH 1,
1974, EB AMENDED THE PRICING SCHEDULE IN ITS INITIAL OFFER. IN THE
COVER LETTER ACCOMPANYING BERMITE'S PROPOSAL CERTAIN QUESTIONS WERE
RAISED WITH RESPECT TO THE CLASSES OF BLACK POWDER THAT WOULD BE
GOVERNMENT-FURNISHED MATERIAL (GFM), AND WHETHER THE ALUMINUM CANS USED
FOR SHIPPING THE MATERIAL WOULD BE FURNISHED BY THE GOVERNMENT. A
REVIEW OF THE MATTER BY THE PROCURING AGENCY INDICATED THAT AN INCORRECT
CLASS OF BLACK POWDER HAD BEEN LISTED IN THE RFP, AND THAT THE RFP
INADVERTENTLY OMITTED ADVISING OFFERORS THAT THE ALUMINUM CANS USED FOR
SHIPPING THE ITEMS WOULD BE GFM. EB WAS ORALLY ADVISED OF THESE
CORRECTIONS ON MARCH 7, 1974, AND THEREAFTER TELEGRAPHIC CONFIRMATION
WAS RECEIVED FROM EB THAT ITS PRICE WAS PREDICATED ON THE ALUMINUM CANS
BEING FURNISHED BY THE GOVERNMENT. A COMPARISON OF THE PROPOSALS
SUBMITTED BY THE OFFERORS IS AS FOLLOWS:
OFFEROR UNIT PRICES
*F.O.B. *F.O.B.
ORIGIN DESTINATION
MOTOR RAIL
BERMITE $0.992 $0.995
EB (INITIAL) 1.255 1.264
EB (AS AMENDED) 0.990 .999
*(BASED ON WAIVER OF FIRST
ARTICLE TESTING)
THE CONTRACTING OFFICER REPORTS THAT BOTH FIRMS WERE CONSIDERED
ELIGIBLE FOR WAIVER OF FIRST ARTICLE TESTING IN ACCORDANCE WITH THE
WAIVER PROVISION IN THE RFP.
IN INITIAL PROPOSALS SUBMITTED BY EB AND BERMITE WERE REVIEWED BY THE
ARCOM COST/PRICE ANALYSIS BRANCH AND ON FEBRUARY 20, 1974, A
RECOMMENDATION WAS MADE TO AWARD THE CONTRACT TO BERMITE AT ITS PROPOSED
F.O.B. DESTINATION PRICE OF $0.995 (BASED ON WAIVER OF FIRST ARTICLE
TESTING) SINCE THERE WAS ADEQUATE PRICE COMPETITION AND BERMITE'S PRICE
COMPARED FAVORABLY WITH PRICES IN PREVIOUS PROCUREMENTS. AS A RESULT OF
THIS RECOMMENDATION, A DETERMINATION WAS MADE BY THE CONTRACTING OFFICER
THAT THE AWARD SHOULD BE MADE ON THE BASIS OF INITIAL PROPOSALS WITHOUT
FURTHER DISCUSSIONS.
(PAGE 7 OF THE RFP ADVISED OFFERORS THAT AWARD MIGHT BE MADE ON THIS
BASIS.) BERMITE WAS SELECTED AS THE SUCCESSFUL OFFEROR ON THE BASIS THAT
ITS PRICE WAS LOW AND AN AWARD WAS MADE TO THAT FIRM ON MARCH 14, 1974.
UNDER THE REQUIRED SCHEDULE, DELIVERIES ARE TO BE MADE BETWEEN MAY 31,
1974 THROUGH JANUARY 31, 1975.
EB ARGUES THAT ANY ADVANTAGE RESULTING FROM BERMITE'S F.O.B.
DESTINATION PRICE WOULD BE MORE THAN OFFSET BY THE ADDITIONAL COSTS
INVOLVED IN SHIPPING THE GFM TO BERMITE COMPARED TO WHAT THESE COSTS
WOULD HAVE BEEN IF THE GFM WERE SHIPPED TO EB. IN THIS REGARD, EB
ADVISES THAT SINCE 1,595 CANS OF THE TOTAL REQUIRED NUMBER OF 2,448 WERE
ALREADY IN THE VICINITY OF ITS PLANT IN SIMSBURY, CONNECTICUT, THE
GOVERNMENT WOULD NOT HAVE HAD TO INCUR ANY ADDITIONAL COSTS WITH RESPECT
TO SHIPPING THESE CANS AND THAT THE REMAINING 853 CANS COULD HAVE BEEN
SHIPPED FROM EAST CAMDEN, ARKANSAS, TO ITS PLANT AT A COST OF $1,069.
EB COMPARES THIS TO A TOTAL COST OF $4,209 TO SHIP 2,448 CANS FROM EAST
CAMDEN TO BERMITE'S PLANT IN SAUGUS, CALIFORNIA. EB FURTHER ESTIMATES
THAT THE COST OF SHIPPING THE BLACK POWDER FROM THE POINT OF MANUFACTURE
(PINE BLUFF, ARKANSAS), TO ITS PLANT, WOULD HAVE BEEN ABOUT $1,430 LESS
THAN THE COST OF SHIPPING THIS ITEM TO BERMITE'S PLANT. BASED ON THESE
ESTIMATES EB CONTENDS THAT THE TOTAL SAVINGS TO THE GOVERNMENT IN
SHIPPING SHIPOING THE GFM TO ITS PLANT RATHER THAN BERMITE'S PLANT WOULD
HAVE BEEN ABOUT $4,750 OR $0.0056 PER UNIT. EB CONTENDS THAT IF THIS
SAVING HAD BEEN CONSIDERED IN THE EVALUATION, AS IT SHOULD HAVE BEEN,
EB'S UNIT PRICE ON AN F.O.B. DESTINATION BASIS (WITH WAIVER OF FIRST
ARTICLE TESTING) WOULD BE $0.0016 PER UNIT LOWER THAN BERMITE'S PRICE.
EB URGES THAT THE AWARD TO BERMITE SHOULD BE CANCELED AND THE CONTRACT
AWARDED TO EB.
THE CONTRACTING OFFICER'S REPORT STATES THAT THE COSTS OF
TRANSPORTING THE BLACK POWDER WERE CONSIDERED IN EVALUATING EB'S AND
BERMITE'S OFFERS AND IT WAS FOUND THAT THE COSTS OF TRANSPORTING THIS
ITEM TO BERMITE'S PLANT BY MOTOR WERE LOWER THAN TRANSPORTATION COSTS
FOR THIS ITEM BY EITHER MOTOR OR RAIL TO EB'S PLANT.
WITH RESPECT TO THE EVALUATION OF THE TRANSPORTATION COSTS FOR
ALUMINUM SHIPPING CANS, THE CONTRACTING OFFICER'S REPORT STATES AS
FOLLOWS:
"(1) *** AMMUNITION CAN SHIPPING COSTS WERE NOT EVALUATED. THESE
COSTS CANNOT BE READILY ASCERTAINED BECAUSE OF THE MANY POTENTIAL POINTS
OF ORIGIN FOR SHIPMENTS. THE PROCURING OFFICE DID NOT HAVE INFORMATION
REGARDING THE POINTS OF ORIGIN AT THE TIME OF THE ISSUANCE OF THE
SOLICITATION OR AT THE TIME OF EVALUATION OF OFFERS.
"(2) FURTHER, AN EVALUATION OF THE COSTS OF SHIPPING CANS (IF ONE
WERE MADE) BASED ON THE FACTS ALLEGED BY ENSIGN BICKFORD WOULD NOT YIELD
THE STATED RESULTS (PAGE 2 OF PROTEST LETTER). ALTHOUGH A QUANTITY OF
1,595 CANS WAS IMMEDIATELY AVAILABLE TO ENSIGN BICKFORD, THE COST OF
SHIPPING THESE CANS WAS BORNE BY THE GOVERNMENT AT SOME POINT IN TIME.
BERMITE HAD A QUANTITY SUFFICIENT TO COMPLETE DELIVERIES UNDER THE
RESULTING CONTRACT ***. ONCE AGAIN, HOWEVER, THE GOVERNMENT HAS BORNE
THE COST OF SHIPPING THESE CANS. AS STATED ABOVE, THE COST OF SHIPPING
THESE CANS COULD NOT BE EVALUATED BECAUSE SUFFICIENT INFORMATION WAS NOT
AVAILABLE. THE APPROACH TAKEN BY ENSIGN BICKFORD ASSUMES THAT THERE IS
NO COST INVOLVED TO THE GOVERNMENT IF THE CANS ARE AVAILABLE AT A
CONTRACTOR'S PLANT. USING THIS APPROACH, ENSIGN BICKFORD'S COSTS WOULD
BE HIGHER BECAUSE OF THE NEED TO SUPPLY AN ADDITIONAL 853 CANS."
A MEMORANDUM OF A TELEPHONE CONVERSATION WITH THE GOVERNMENT'S
CONTRACT ADMINISTRATOR AT BERMITE'S PLANT DATED MARCH 21, 1974,
INDICATES THAT WHILE 1,595 CANS WERE SHIPPED TO BERMITE, MORE THAN AN
ADEQUATE NUMBER OF CANS WERE AVAILABLE AT BERMITE'S PLANT TO FULFILL THE
REQUIREMENTS OF THIS CONTRACT PRIOR TO THE RECEIPT OF THESE 1,595 CANS.
ANOTHER DOCUMENT ENTITLED "DETAILS OF PROPOSED AWARD" STATES THAT SINCE
THE AMMUNITION CANS ARE SHIPPED FROM PLANTS AND DEPOTS ALL OVER THE
CONTINENTAL UNITED STATES, THE TRANSPORTATION COSTS CANNOT BE EVALUATED.
ARMY'S POSITION IS THAT SINCE THE COSTS OF TRANSPORTING THE ALUMINUM
CANS CANNOT BE REALISTICALLY DETERMINED, THERE WAS A JUSTIFIABLE BASIS
FOR NOT INCLUDING THIS AS AN EVALUATION FACTOR. ARMY ALSO ASSERTS THAT
SINCE EB DID NOT PROTEST THE FAILURE TO INCLUDE THE COSTS OF SHIPPING
THE ALUMINUM CANS AS AN EVALUATION FACTOR PRIOR TO THE CLOSING DATE FOR
RECEIPT OF PROPOSALS, THIS ASPECT OF EB'S PROTEST SHOULD BE CONSIDERED
UNTIMELY.
WE BELIEVE THERE IS MERIT TO THE ARMY'S ARGUMENT THAT PRIOR PRACTICE
SHOULD HAVE ALERTED EB TO THE FACT THAT IN THE ABSENCE OF SOME
AFFIRMATIVE STATEMENT IN THE RFP, THE TRANSPORTATION COSTS OF SHIPPING
ALUMINUM CANS WOULD NOT BE INCLUDED IN THE EVALUATION. THEREFORE, SINCE
EB DID NOT PROTEST THE FAILURE TO INCLUDE THE SHIPPING COSTS OF THE
ALUMINUM CANS AS AN EVALUATION FACTOR UNTIL AFTER THE AWARD WAS MADE,
THE ARMY'S POINT THAT THIS ASPECT OF THE PROTEST IS UNTIMELY APPEARS
MERITORIOUS. SEE B-180341, MAY 10, 1974. HOWEVER, SINCE THERE IS ALSO
SOME VALIDITY TO EB'S ARGUMENT THAT IT WAS ENTITLED TO ASSUME THAT ALL
COSTS WOULD BE CONSIDERED IN THE EVALUATION, WE BELIEVE THE MERITS OF
THIS ASPECT OF THE PROTEST SHOULD BE CONSIDERED.
EB POINTS OUT THAT THE GOVERNMENT'S LOADING PLANT IN BALDWIN,
ARKANSAS, IS THE SOLE SHIPPING POINT APPLICABLE TO ALUMINUM CANS. EB
FURTHER STATES THAT NUMEROUS PREVIOUS GOVERNMENT PROCUREMENTS HAVE
INCLUDED THE COST OF SHIPPING GOVERNMENT-FURNISHED AMMUNITION CANS IN
THE EVALUATION. IN ADDITION, EB ADVISES THAT AFTER SUBMISSION OF OFFERS
BUT PRIOR TO AWARD THE ARMY ORDERED THE SHIPMENT OF THE 1,595 AMMUNITION
CANS IN ITS VICINITY TO BERMITE AT A COST OF $2,694, AND TO SUPPORT THIS
CHARGE EB HAS FORWARDED A SHIPPING DOCUMENT DATED MAY 1, 1974. EB
QUESTIONS THE NECESSITY OF SHIPPING THESE 1,595 CANS TO BERMITE AND
ASSERTS THAT IF THE SHIPMENT OF THE CANS WERE UNNEEDED, THIS AT LEAST
CONSTITUTES POOR PROPERTY ADMINISTRATION. WITH RESPECT TO THE
TIMELINESS ISSUE EB CONTENDS THAT IT ASSUMED THAT ARMY WOULD CONSIDER
ALL RELEVANT COST FACTORS IN THE EVALUATION AND SINCE IT COULD NOT
PREDICT THAT GFM WOULD NOT BE INCLUDED IN THE EVALUATION, ITS PROTEST
SHOULD NOT BE REJECTED AS UNTIMELY.
ARMY HAS CHECKED ITS FILE ON TWO PREVIOUS CONTRACTS FOR THE IGNITER
MK 125 AND WE ARE ADVISED AS FOLLOWS:
"*** EVALUATION OF THE COST TO SHIP CLASSES 6 AND 7 BLACK POWDER WAS
MADE PRIOR TO AWARD OF CONTRACT DAAA09-73-C-0170 TO BERMITE. HOWEVER,
CAN SHIPPING COSTS WERE NOT INCLUDED. NO EVALUATION OF GFM SHIPMENT
COSTS (CLASSES 6 AND 7 BLACK POWDER OR AMMUNITION CANS) WAS MADE PRIOR
TO AWARD OF CONTRACT DAAA21-72-C-0810 TO ENSIGN BICKFORD COMPANY."
WITH RESPECT TO THE CONTENTION THAT BALDWIN IS THE CENTRAL SHIPPING
POINT FOR AMMUNITION CANS, ARMY REITERATES THAT POINTS OF ORIGIN FOR
SHIPMENT OF CANS WERE NOT READILY ASCERTAINABLE AT EITHER THE TIME OF
EVALUATION OR THE TIME OF CONTRACT AWARD AND STATES THAT SINCE THE
QUANTITY OF CANS IN POSSESSION OF A CONTRACTOR VARIES WITH THE
PRODUCTION RATE OF THE CONTRACTOR, THE NUMBER OF CANS IN THE POSSESSION
OF EITHER PROSPECTIVE CONTRACTOR WAS NOT KNOWN AT THE TIME OF
EVALUATION. SUBSEQUENT TO EB'S PROTEST AND THE AWARD TO BERMITE, ARMY
COUNTED THE NUMBER OF CANS ON HAND AT THE PLANTS OF BOTH OFFERORS WITH
THE FOLLOWING RESULTS:
"*** AS NEARLY AS CAN BE DETERMINED, _ ENSIGN BICKFORD HAD A QUANTITY
OF 1,595 CANS ON HAND VS. THE 2,174 CANS ON HAND AT BERMITE. THE
BERMITE FIGURE HAS BEEN VERIFIED BY THE ACO WHO ALSO STATES THAT A
QUANTITY OF 2,324 CANS WOULD BE REQUIRED FOR CONTRACT DAAA09-74-C-0092.
ACCEPTING THE ACO'S REQUIRED FIGURE AS ACCURATE, ENSIGN BICKFORD WOULD
NEED AN ADDITIONAL 729 CANS VS. AN ADDITIONAL 150 CANS FOR BERMITE.
***"
ARMY HAS CONFIRMED THAT THE 1,595 CANS AT EB WERE SHIPPED TO BERMITE
FOR UTILIZATION BUT ARMY REPORTS THAT ONLY 150 OF THESE CANS WERE
NEEDED.
THE QUESTION WHETHER TO INCLUDE THE COSTS OF SHIPPING THE GFM AS AN
EVALUATION FACTOR IS A MATTER WITHIN THE DISCRETION OF THE PROCURING
ACTIVITY AND AS SUCH WILL NOT BE QUESTIONED BY OUR OFFICE UNLESS IT IS
SHOWN THAT THE DETERMINATION IS NOT REASONABLY SUPPORTED BY THE RECORD
PRESENTED. WITH RESPECT TO THE ALUMINUM CANS WE FIND THAT THE RECORD
SUPPORTS THE ADMINISTRATIVE POSITION THAT THE COSTS OF SHIPPING THE
ALUMINUM CONTAINERS COULD NOT BE REASONABLY DETERMINED; THEREFORE, WE
DO NOT FIND THAT THE FAILURE TO INCLUDE SUCH COSTS AS AN EVALUATION
FACTOR WAS AN ABUSE OF THE ADMINISTRATIVE DISCRETION. SEE B-177861,
JULY 13, 1973. MOREOVER, THE COST OF SHIPPING THE BLACK POWDER WAS
INCLUDED IN THE EVALUATION AND WE HAVE NO BASIS FOR CONCLUDING THAT
ARMY'S DETERMINATION THAT THE COST OF SHIPPING THIS ITEM FROM THE PLACE
OF MANUFACTURE TO BERMITE'S PLANT WAS LESS THAN THE COST OF TRANSPORTING
THIS ITEM BY EITHER MOTOR OR RAIL TO EB'S PLANT. ALSO, THERE IS NO
BASIS FOR QUESTIONING THE FINDING THAT THERE WERE SUBSTANTIALLY MORE
CANS AVAILABLE TO FULFILL THE REQUIREMENTS OF THIS CONTRACT AT BERMITE'S
PLANT THAN AT EB'S PLANT. THUS, EVEN IF WE ACCEPTED EB'S CONTENTION
THAT TRANSPORTATION COSTS OF SHIPPING THE CANS SHOULD HAVE BEEN INCLUDED
IN THE EVALUATION, IT WOULD NOT HAVE RESULTED IN BECOMING THE LOW
OFFEROR. WHILE A SUBSTANTIAL PORTION OF THE 1,595 CANS SHIPPED TO
BERMITE MAY NOT BE USED IN CONNECTION WITH THE BASIC CONTRACT, THEY WILL
BE AVAILABLE IN THE EVENT THE OPTION IS EXERCISED. IN ANY EVENT, REVIEW
OF A PROPERTY ADMINISTRATION MATTER WOULD BE OUTSIDE THE SCOPE OF OUR
FUNCTION IN CONSIDERING A PROTEST RELATIVE TO THE AWARD OF A CONTRACT.
IN VIEW OF THESE CONSIDERATIONS, WE DO NOT FIND THAT EB'S CONTENTIONS
REGARDING THE EVALUATION OF GFM CONSTITUTE A BASIS FOR DISTURBING THE
AWARD.
WHILE WE BELIEVE OFFERORS WERE ENTITLED TO KNOW WHETHER THE COSTS OF
SHIPPING THE BLACK POWDER WOULD BE INCLUDED AS AN EVALUATION FACTOR IN
CONSIDERING F.O.B. DESTINATION OFFERS, AND THE RFP DID NOT SO PROVIDE,
THE COSTS OF SHIPPING THE BLACK POWDER DID NOT HAVE ANY AFFECT ON THE
SELECTION OF THE LOW OFFEROR; THEREFORE, WE DO NOT FIND THAT THIS
DEFICIENCY CONSTITUTED A MATERIAL DEFECT.
NEXT FOR CONSIDERATION IS EB'S CONTENTION THAT THE ARMY MAY HAVE
VIOLATED ASPR 3-805.1(A) BY NEGOTIATING ONLY WITH BERMITE, AND ASPR
3-805.1(B) BY FAILING TO ESTABLISH A COMMON CUT-OFF DATE FOR
NEGOTIATIONS.
THE CONTRACTING OFFICER CONCEDES THAT CORRECTIONS WERE DISCUSSED WITH
THE OFFERORS CONCERNING INCORRECT IDENTIFICATION OF THE CLASS OF BLACK
POWDER TO BE FURNISHED AS GFM AND THE INADVERTENT OMISSION OF SPECIFYING
THE ALUMINUM CANS AS A GFM ITEM AFTER RECEIPT OF PROPOSALS. THE
CONTRACTING OFFICER EXPLAINS THAT THESE CONTRACTS WERE FOR
"CLARIFICATION PURPOSES ONLY" AND THAT THE "PRICES WERE NOT DISCUSSED AT
ANY TIME. A LEGAL ANALYSIS IN THE ADMINISTRATIVE FILE STATES AS FOLLOWS
IN FURTHER EXPLANATION OF THE EFFECT OF THESE "DISCUSSIONS":
"BECAUSE OF AN INADVERTENT FAILURE TO LIST THE AMMUNITION CANS AS
ITMES OF GOVERNMENT EQUIPMENT TO BE FURNISHED, THE CONTRACTING OFFICER
DID MAKE AN INQUIRY, *** FOR THE SOLE PURPOSE OF ELIMINATING THIS MINOR
IRREGULARITY. THEREFORE, HIS TELEPHONIC REQUESTS DID NOT CONSTITUTE
DISCUSSIONS WITHIN THE MEANING OF ASPR 3-805. THESE CANS, WHICH ARE
REUSEABLE, HAVE BEEN RETURNED BY THE GOVERNMENT TO EITHER OR BOTH ENSIGN
BICKFORD OR BERMITE WHEN EMPTIED ON A CONTINUOUS BASIS DEPENDING UPON
WHO WAS PRODUCING THE IGNITERS AT THE TIME A CARLOAD OR TRUCK LOAD OF
EMPTIES WERE READY TO SHIP. A TYPICAL SITUATION EXISTED AT BOTH PLANTS
AS OF THE DATE OF PROPOSAL SUBMISSION - ENSIGN BICKFORD HAD 1,595 CANS
ON HAND, WHEREAS BERMITE HAD MORE THAN ENOUGH TO COMPLETE THE PROPOSED
CONTRACT. AS THIS HAS BEEN THE PRACTICE FOR MANY YEARS PRIOR TO
ISSUANCE OF THE RFP, HERE INVOLVED, EACH OFFEROR BID ON THE EXPECTATION
THAT THE PRACTICE WOULD CONTINUE. PROTESTOR, FOR EXAMPLE, WHEN ASKED,
STATED ON THE TELEPHONE, AND CONFIRMED IN WRITING, THAT THE OVERSIGHT
WOULD HAVE NO EFFECT ON HIS BID."
THE ARMY'S POSITION IS THAT IT WAS NO NECESSARY TO FOLLOW THE
PROCEDURES IN ASPR 3-805.1(A) OR (B) SINCE AWARD WAS MADE ON THE BASIS
OF INITIAL PROPOSALS AS PROVIDED IN THE RFP AND IN ASPR 3-805.1(A)(V).
EB'S COMMENT IS THAT ASPR 3-805.1(A)(V) IS INAPPLICABLE TO THIS
SITUATION SINCE ARMY DID HOLD SOME DISCUSSIONS WITH BOTH BERMITE AND EB.
EB HAS CITED OUR DECISION B-178001, FEBRUARY 14, 1974 (53 COMP. GEN.
___), FOR THE PROPOSITION THAT "ANY DISCUSSIONS" AFTER RECEIPT OF
PROPOSALS REQUIRES THE CONTRACTING OFFICER TO NEGOTIATE WITH ALL OF THE
OFFERORS AND TO ESTABLISH A COMMON CUT-OFF DATE. FURTHER, EB ASSERTS
THAT THE CONTRACTING OFFICER'S STATEMENTS THAT THE DISCUSSIONS WERE FOR
CLARIFICATION PURPOSES AND THAT THE PRICES OFFERED WERE NOT DISCUSSED
ARE SPECIOUS SINCE THE ESSENCE OF THE DISCUSSIONS CONCERNED THE
WILLINGNESS OF OFFERORS TO ACCEPT CHANGES IN THE SPECIFIED REQUIREMENTS
WITHOUT PRICE REVISION. IN ADDITION, IT IS URGED THAT SINCE EB AMENDED
ITS PROPOSAL BY REDUCING THE PRICE THEREIN, THE CONTRACTING OFFICER
SHOULD HAVE BEEN ALERTED TO THE POSSIBILITY THAT EB WOULD FURTHER REDUCE
ITS PROPOSAL.
WHILE THERE IS NO QUESTION THAT THE PROCURING ACTIVITY CONTACTED THE
OFFERORS CONCERNING CORRECTIONS IN GOVERNMENT-FURNISHED MATERIAL
SUBSEQUENT TO RECEIPT OF INITIAL PROPOSALS, IT IS EQUALLY CLEAR THAT THE
CORRECTIONS DID NOT RESULT IN ANY CHANGE IN THE CONTRACT REQUIREMENTS IN
SO FAR AS THE OFFERORS' OBLIGATIONS WERE CONCERNED. WITH RESPECT TO THE
BLACK POWDER, KOFFERORS WERE ALREADY AWARE BY THE TERMS OF THE
SOLICITATION THAT THIS ITEM WOULD BE GOVERNMENT-FURNISHED, AND THE ONLY
CHANGE BROUGHT TO THE ATTENTION OF THE OFFERORS SUBSEQUENT TO RECEIPT OF
PROPOSALS WAS THAT THE GOVERNMENT WAS CHANGING THE CLASS OF BLACK POWDER
TO BE FURNISHED. WHILE THE SOLICITATION DID NOT STATE THAT THE
GOVERNMENT WOULD FURNISH THE ALUMINUM CANS, WE HAVE NO REASON TO DOUBT
THAT BOTH OF THE PROPOSALS WERE PREPARED WITH THE EXPECTATION BASED NO
PRIOR EXPERIENCE THAT THE AMMUNITION CANS WOULD BE GOVERNMENT-FURNISHED.
WE HAVE HELD THAT EVEN IF AN RFP SPECIFICALLY PROVIDES THAT AWARDS
MAY BE MADE ON THE BASIS OF INITIAL PROPOSALS, ONCE "DISCUSSIONS" HAVE
BEEN INITIATED WITH ONE OFFEROR SUBSEQUENT TO THE RECEIPT OF PROPOSALS,
AWARD MAY NO LONGER BE MADE ON THE BASIS OF INITIAL PROPOSALS. SEE 50
COMP. GEN. 202 (1970) AND B-165837, MARCH 28, 1969. WE NOTE THAT IN
EACH OF THE CITED CASES THE SUBJECT OF THE DISCUSSIONS HAD A SIGNIFICANT
IMPACT ON CONTRACT REQUIREMENTS. IN 50 COMP. GEN. 202, SUPRA, THE
AGENCY ACCEPTED ACKNOWLEDGMENT OF AN ADDENDUM WHICH ADDED APPROXIMATELY
$3,000 TO THE CONTRACT PRICE AFTER CLOSE OF NEGOTIATIONS; IN B-165837,
SUPRA, THE AGENCY EXTENDED THE OPPORTUNITY TO OFFERORS TO MAKE TECHNICAL
CHANGES AND PRICE REVISIONS AFTER RECEIPT OF INITIAL PROPOSALS AND A
NUMBER OF OFFERORS REVISED THEIR PRICES. IN A CASE SUCH AS THIS WE DO
NOT BELIEVE ANY STRICTER RULE SHOULD BE APPLIED IN DETERMINING WHETHER
AWARD MAY BE MADE ON THE BASIS OF INITIAL PROPOSALS THAN THE CRITERIAL
USED IN RESOLVING WHETHER CHANGES OCCURING AFTER RECEIPT OF BEST AND
FINAL OFFERS REQUIRES THE REOPENING OF NEGOTIATIONS. IN THIS REGARD, IN
CONSIDERING WHETHER A WAGE DETERMINATION COULD BE INCORPORATED INTO A
CONTRACT AFTER RECEIPT OF BEST AND FINAL OFFERS, WE HELD THAT SINCE THIS
FACTOR DID NOT AFFECT THE RELATIVE COST POSITIONS OF THE FIRMS
CONCERNED, IT WAS NOT AN ABUSE OF DISCRETION FOR THE AGENCY TO DECLINE
TO SOLICIT REVISED PROPOSALS. SEE 52 COMP. GEN. 686 (1973). SEE ALSO
B-177317, DECEMBER 29, 1972. SINCE THE GFM CHANGES IN THIS CASE DID NOT
HAVE ANY IMPACT ON THE CONTRACT REQUIREMENTS OR RELATIVE COST POSITIONS
OF THE FIRMS CONCERNED, WE DO NOT BELIEVE THAT IT WAS AN ABUSE OF
DISCRETION TO MAKE THE AWARD ON THE BASIS OF INITIAL PROPOSALS.
IN B-178001, FEBRUARY 14, 1971, SUPRA, CITED BY EB, WE CONCLUDED THAT
REJECTING A PROPOSAL WHICH INITIALLY WAS DETERMINED TO BE WITHIN THE
COMPETITIVE RANGE ON THE BASIS OF ORAL STATEMENTS MADE BY THE OFFEROR
DURING THE COURSE OF NEGOTIATIONS DID NOT COMPORT WITH THE ESSENTIAL
ELEMENT OF THE NEGOTIATING PROCESS IN 10 U.C.C. 2304(G), WHICH REQUIRES
THAT OFFERORS BE GIVEN THE OPPORTUNITY TO SUBMIT REVISED PROPOSALS.
HOWEVER, THERE IS NOTHING IN THE CITED DECISION TO SUPPORT EB'S
ASSERTION THAT "ANY DISCUSSIONS" REQUIRE THE REOPENING OF NEGOTIATIONS
AND THE ESTABLISHMENT OF A COMON CUT-OFF DATE. MOREOVER, SEE ASPR
3-805.1(B) WHICH AUTHORIZES INQUIRIES TO OFFERORS FOR THE PURPOSE OF
CERTAIN CLARIFICATIONS AND PROVIDES THAT SUCH CLARIFICATION SHALL NOT
CONSTITUTE "DISCUSSIONS" WITHIN THE MEANING OF 3-805. WE BELIEVE THE
INQUIRIES MADE IN THIS CASE WERE OF THE NATURE CONTEMPLATED BY THIS
PROVISION OF ASPR.
WE HAVE HELD THAT IF A PRICE REVISION FROM ONE OF THE OFFERORS
RECEIVED AFTER THE CUT-OFF DATE IS CONSIDERED IN THE EVALUATION, THEN
EQUAL OPPORTUNITY FOR ADDITIONAL PROPOSAL REVISION MUST BE EXTENDED TO
ALL SIMILARLY SITUATED OFFERORS AND A NEW CLOSING DATE MUST BE
ESTABLISHED. SEE B-174492, JUNE 1, 1972 AND B-173597(1), DECEMBER 1,
1971. WE MENTION THIS BECAUSE THE CONTRACTING OFFICER DID NOT
SPECIFICALLY REJECT EB'S PRICE REVISION SUBMITTED AFTER THE CLOSING DATE
FOR RECEIPT OF PROPOSALS AS A LATE MODIFICATION AS PROVIDED BY ASPR.
HOWEVER, IT DOES NOT APPEAR THAT THE REVISION WAS CONSIDERED AS THE
DETERMINATION HAD BEEN MADE TO AWARD ON THE BASIS OF INITIAL PROPOSALS
AND BERMITE'S PRICE WAS STILL THE LOWEST. IN THE CIRCUMSTANCES, THIS
IRREGULARITY DID NOT CONSTITUTE A BASIS FOR QUESTIONING THE AWARD TO
BERMITE ON THE BASIS OF ITS INITIAL OFFER. MOREOVER, IN VIEW OF EB'S
TELEGRAM TO THE PROCURING ACTIVITY, SENT AFTER ITS PRICE REVISION,
ADVISING THAT THE CHANGES IN GFM DID NOT AFFECT ITS PRICE, WE FIND THAT
EB'S ASSERTION THAT IT CONTEMPLATED FURTHER PRICE REVISIONS AND THAT THE
PROCURING ACTIVITY SHOULD HAVE BEEN AWARE OF THIS, IS NOT SUBSTANTIATED
BY THE RECORD.
EB HAS ASSERTED THAT THE AWARD OF THE LARGE QUANTITY OF THIS CONTRACT
TO BERMITE WILL RESULT IN BERMITE BECOMING THE SOLE PRODUCER OF
IGNITERS. EB URGES THAT THIS REDUCTION OF COMPETITION IN FURTHER
PROCUREMENTS IS NOT IN THE BEST INTERESTS OF THE UNITED STATES.
ARMY ADVISES THAT THE REASON FOR A SINGLE AWARD WAS THAT THE QUANTITY
OF 822.450 UNITS IN THIS PROCUREMENT WAS NOT CONSIDERED LARGE ENOUGH FOR
AN ECONOMICAL SPLIT BETWEEN THE TWO OFFERORS. WE ARE FURTHER ADVISED
THAT IT HAS BEEN DETERMINED, IN VIEW OF THE CAPACITY AND CAPACITY AND
CAPABILITIES OF THE SELECTED OFFEROR, THAT ONE ACTIVE SOURCE WILL BE
ADEQUATE TO SATISFY MOBILIZATION BASE NEEDS FOR THIS ITEM.
WE HAVE HELD THAT THE DETERMINATION OF THE NEEDS OF THE GOVERNMENT
WITH RESPECT TO INDUSTRIAL MOBILIZATION AND THE METHOD FOR ACCOMODATING
SUCH NEEDS IS PRIMARILY THE RESPONSIBILITY OF THE PROCURING AGENCY AND
THAT, EXCEPT IN SITUATIONS WHERE CONVINCING EVIDENCE HAS BEEN PRODUCED
INDICATING THAT THE ADMINISTRATIVE DISCRETION WAS ABUSED, OUR OFFICE
WILL NOT CHALLENGE THOSE DETERMINATIONS. 49 COMP. GEN. 463 (1970).
PURSUANT TO OUR REVIEW, WE HAVE NOT FOUND EVIDENCE TO ESTABLISH THAT THE
ARMY'S DETERMINATIONS THAT IT WAS NO ECONOMIC TO SPLIT THE PROCUREMENT
AND THAT THE SOURCE SELECTED WILL ADEQUATELY MEET MOBILIZATION NEEDS WAS
AN ABUSE OF DISCRETION; THEREFORE, WE WILL NOT QUESTION THE AWARD OF
THE ENTIRE QUANTITY TO BERMITE. MOREOVER, WE NOTE THAT WHILE EB MAY NOT
CONTINUE TO BE AN ACTIVE PRODUCER OF IGNITERS, THIS WOULD NOT PRECLUDE
EB FROM COMPETING FOR FUTURE CONTRACTS FOR THIS ITEM. IN THIS RESPECT,
EB HAS INDICATED ITS AGREEMENT TO CONTINUE CURRENT PARTICIPATION IN THE
DOD INDUSTRIAL MOBILIZATION PRODUCTION PLANNING PROGRAM FOR THE ITEMS IN
THIS PROCUREMENT.
THE FINAL POINT IN EB'S PROTEST CONCERNS THE RFP PROVISION FOR AN
OPTION OF 300 PERCENT OF THE BASIC QUANTITIES, SUBJECT TO CERTAIN
ESCALATION FOR MATERIAL AND LABOR COSTS. IN THIS CONNECTION, EB REFERS
TO ASPR 1-1504(A), WHICH STATES THAT OPTIONS SHALL NOT EXCEED 50 PERCENT
OF THE BASIC QUANTITY EXCEPT WHEN APPROPRIATE HIGHER AUTHORITY APPROVES
A HIGHER PERCENTAGE ON TE BASIS OF UNUSUAL CIRCUMSTANCES. EB STATES
THAT IT CANNOT CONCEIVE OF THE UNUSUAL CIRCUMSTANCES THAT WOULD REQUIRE
A 300 PERCENT OPTION WHERE COMPETITION IS CURRENTLY AVAILABLE. EB FEELS
THAT THIS IS PARTICULARLY TRUE IN THIS CASE WHERE THE OPTION PRICE IS
SUBJECT TO ESCALATION AND NOT NECESSARILY TIED TO THE "COMPETITIVE
PRICE" ESTABLISHED BY THE PROCUREMENT. IN ADDITION, EB CONTENDS THAT
SINCE THE BASIC PRICE UPON WHICH THE OPTION PRICE IS BASED, WAS NOT
ESTABLISHED BY PROPER COMPETITIVE NEGOTIATION PROCEDURE, IT FOLLOWS THAT
THE OPTION PRICE ALSO IS SUBJECT TO QUESTION. FOR THESE REASONS EB
URGES THAT EVEN IF OUR OFFICE SHOULD DECIDE NOT TO RECOMMEND
CANCELLATION OF BERMITE'S CONTRACT, OUR OFFICE SHOULD NEVERTHELESS
CONCLUDE THAT THE OPTION SHOULD NOT BE EXERCISED.
THE CONTRACTING OFFICER'S JUSTIFICATION FOR INCLUDING A 300 PERCENT
OPTION, WHICH WAS APPROVED BY HIGHER AUTHORITY, STATES AS FOLLOWS:
"(1) TO PROVIDE A MEANS OF MAINTAINING AN ACTIVE PRODUCTION BASE BY
AWARDING OPTION QUANTITIES THAT MAY BE UNECONOMICAL PRODUCTION RUNS FOR
ANY FIRM OTHER THAN AN ACTIVE PRODUCER.
"(2) EXPERIENCE INDICATES THAT THE 2.75" ROCKET PROGRAM IS
MULTI-NATIONAL AND MAP AND MAS PROCUREMENTS ARE FREQUENT AND CANNOT BE
FORECAST WITH ANY ACCURACY.
"(3) ADDITIONAL REQUIREMENTS ARE FREQUENTLY RUSH REQUIREMENTS WITH
EXTREMELY SHORT LEAD TIMES FOR BOTH PRODUCTION AND PROCUREMENT."
SINCE WE HAVE NO BASIS FOR CONCLUDING THAT THE FACTORS LISTED IN THE
CONTRACTING OFFICER'S JUSTIFICATION FOR THE OPTION DID NOT CONSTITUTE
UNUSUAL CIRCUMSTANCES, AND SINCE THERE WAS APPROVAL BY HIGHER AUTHORITY,
WE FIND NO VIOLATION OF ASPR 1-504(A), IN THIS CASE. MOREOVER, WE FIND
THAT EB'S CONTENTION THAT THE OPTION PRICE IS NOT COMPETITIVE IS WITHOUT
MERIT. THE ONLY BASIS FOR THE CONTENTION IS THAT THE OPTION PRICE IS
SUBJECT TO ADJUSTMENT FOR ESCALATION FOR LABOR AND MATERIAL COSTS.
APPLICATION OF AN ESCALATION PROVISION TO OPTION PRICES IS RECOGNIZED
UNDER ASPR 1-1505(B), SUBJECT ONLY TO CERTAIN DETERMINATIONS PRIOR TO
EXERCISE OF THE OPTION AND ESCALATION OF THE PRICES.
SINCE THE CRITERIA SET FORTH IN ASPR MUST BE MET BEFORE EXERCISING
THE OPTION, WE BELIEVE THAT THE GOVERNMENT IS ADEQUATELY PROTECTED
AGAINST PAYING AN UNREASONABLE PRICE FOR THE OPTION QUANTITY. IN
CONCLUSION, WE HAVE ALREADY INDICATED THAT THE MINOR IRREGULARITIES IN
THIS PROCUREMENT DID NOT HAVE ANY MATERIAL IMPACT ON THE EVALUATION OR
THE AWARD; THEREFORE, WE DO NOT FIND THAT THE RECORD ESTABLISHES A
SUFFICIENT BASIS TO JUSTIFY A RECOMMENDATION BY OUR OFFICE THAT THE
AGENCY SHOULD NOT EXERCISE THE OPTION FOR THE ADDITIONAL QUANTITY.
B-181251, AUG 14, 1974
HEADNOTES-UNAVAILABLE
1. REQUEST THAT GAO RULE ON PROPRIETY OF AGENCY DENIAL OF OFFEROR'S
REQUEST TO REVIEW SUCCESSFUL PROPOSALS SUBMITTED UNDER STEP ONE OF
TWO-STEP PROCUREMENT IS DENIED SINCE GAO HAS NO AUTHORITY UNDER THE
FREEDOM OF INFORMATION ACT AND IMPLEMENTING REGULATIONS WHICH GOVERN
DISCLOSURE OF SUCH RECORDS TO DETERMINE WHAT MUST BE DISCLOSED BY OTHER
GOVERNMENT AGENCIES.
2. PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE BID SYSTEM DOES
NOT REQUIRE THAT OFFEROR, WHOSE FIRST STEP PROPOSAL WAS REJECTED AS
UNACCEPTABLE AND WHO HAS NOT QUESTIONED THE REASONS GIVEN FOR SUCH
REJECTION, BE PERMITTED TO REVIEW OTHER TECHNICAL PROPOSALS ON THE BASIS
OF UNSPECIFIED "SERIOUS QUESTIONS" AS TO THE ACCEPTABILITY OF ANOTHER
OFFEROR'S PROPOSAL.
3. WHERE QUESTION CONCERNING VALIDITY OF TWO STEP ADVERTISING
TECHNIQUE WAS RAISED WITH AGENCY PRIOR TO COMMENCEMENT OF SECOND STEP,
MATTER COULD NOT BE CONSIDERED BY GAO SINCE AGNECY TOOK ADVERSE ACTION
WHEN IT PROCEEDED WITH SECOND STEP NOTWITHSTANDING OBJECTIONS AND
QUESTION WAS NOT PRESENTED TO GAO WITHIN FIVE DAYS OF SUCH ADVERSE
AGENCY ACTION. 52 COMP. GEN. 20 (1972).
POWERS REGULATOR COMPANY SOLICITATION RFTP-WA4M-4-7648:
COUNSEL FOR POWERS HAS REQUESTED THAT OUR OFFICE DETERMINE WHETHER
POWERS IS ENTITLED TO REVIEW NON-PROPRIETARY PORTIONS OF TECHNICAL
PROPOSALS SUBMITTED BY ITS COMPETITORS IN RESPONSE TO THE REFERENCED
SOLICITATION ISSUED BY THE FEDERAL AVIATION ADMINISTRATION AS THE FIRST
STEP OF A TWO-STEP PROCUREMENT.
BY TELEFAX DATED MAY 14, 1974, POWERS INFORMED OUR OFFICE THAT IT
PROTESTED THE FAA'S REJECTION OF ITS TECHNICAL PROPOSAL "BUT WISHED TO
CONFER WITH APPROPRIATE PROCUREMENT OFFICERS TO DISCUSS THIS MATTER
FURTHER." SUBSEQUENTLY, POWERS HAS NOT RAISED ANY QUESTION REGARDING THE
REASONS FOR THE REJECTION OF ITS PROPOSAL BUT HAS REQUESTED THAT OUR
OFFICE DETERMINE THE PROPRIETY OF THE CONTRACTING OFFICER'S DENIAL OF
ITS REQUEST TO REVIEW ACCEPTABLE PROPOSALS RECEIVED IN RESPONSE TO THE
SUBJECT SOLICITATION. COUNSEL STATES THAT "SERIOUS QUESTIONS" HAVE
ARISEN CONCERNING THE DETERMINATION OF ACCEPTABILITY OF THE PROPOSAL
SUBMITTED BY JOHNSON SERVICE, WHICH WAS ULTIMATELY REJECTED IN DEFERENCE
TO THE LOWER SECOND STEP BID SUBMITTED BY HONEYWELL, INCORPORATED. IN
THESE CIRCUMSTANCES COUNSEL ARGUES THAT THE INTEGRITY OF THE COMPETITIVE
BIDDING SYSTEM REQUIRES THAT UNSUCCESSFUL BIDDERS BE ALLOWED TO REVIEW
THE ACCEPTABLE PROPOSALS IN ORDER TO MEANINGFULLY EXERCISE THE RIGHT TO
PROTEST THE AGENCY DETERMINATION THAT THE PROPOSALS ACCEPTED ARE IN
ACCORD WITH THE TECHNICAL REQUIREMENTS SET FORTH IN THE SOLICITATION.
MOREOVER, COUNSEL ARGUES THAT THE OUTCOME OF THE SECOND STEP BIDDING,
THAT IS, THE LARGE PRICE DIFFERENTIAL OF THE TWO ACCEPTABLE PROPOSALS,
RAISES QUESTIONS CONCERNING THE VALIDITY OF EMPLOYING THE TWO-STEP
ADVERTISING PROCEDURES IN THIS CASE.
THE DOCUMENTS WHICH COUNSEL WISHES TO REVIEW WERE SOLICITED, OBTAINED
AND CONSIDERED AND ARE RETAINED BY THE PROCURING AGENCY. THE FREEDOM OF
INFORMATION ACT, 5 U.S.C. 552 AS IMPLEMENTED BY 49 CFR 7 GOVERNS THE
RELEASE OF SUCH DOCUMENTS TO THE PUBLIC BY THE FAA. WE HAVE NO
AUTHORITY UNDER THE ACT OR THE REGULATIONS TO DETERMINE WHAT MUST BE
DISCLOSED BY OTHER GOVERNMENT AGENCIES.
B-165617, MARCH 6, 1969.
MOREOVER, WE CANNOT AGREE WITH COUNSEL'S ARGUMENT THAT POWERS SHOULD
BE PERMITTED TO REVIEW ALL PROPOSALS IN ORDER TO MAINTAIN THE INTEGRITY
OF THE COMPETITIVE PROCUREMENT SYSTEM. THIS OFFICE REVIEWS PROPOSALS
SUBMITTED IN NEGOTIATED AND TWO STEP PROCUREMENTS REVIEWS ARE NECESSARY
IN CONNECTION WITH A BID PROTEST REQUIRING A DETERMINATION AS TO THE
PROPRIETY OF THE EVALUATION PROCESS. IN THE CIRCUMSTANCES DESCRIBED
BELOW IT WOULD NOT BE NECESSARY FOR THIS OFFICE TO CONDUCT SUCH A REVIEW
HERE, EVEN IF WE WERE TO CONSTRUE COUNSEL'S CONTENTIONS AS A PROTEST TO
THIS OFFICE.
ALTHOUGH POWERS WAS GIVEN A "DEBRIEFING" CONFERENCE BY THE PROCURING
AGENCY ON MAY 24, 1974, REGARDING THE REJECTION OF ITS PROPOSAL, THE
FIRM HAS NOT QUESTIONED THE ADEQUACY OF THE DEBRIEFING; THE PROPRIETY
OF THE AGENCY'S REASONS FOR REJECTING ITS PROPOSAL; OR THE PROPRIETY OF
THE DETERMINATION CONCERNING THE ACCEPTABILITY OF THE SUCCESSFUL
BIDDER'S (HONEYWELL) PROPOSAL. IT IS ARGUED THAT POWERS IS ENTITLED TO
REVIEW THE PROPOSALS BECAUSE "SERIOUS QUESTIONS HAVE ARISEN CONCERNING
THE ACCEPTABILITY OF" JOHNSON'S TECHNICAL PROPOSAL. HOWEVER, NO FACTUAL
BASIS HAS BEEN ADVANCED TO SUPPORT THE ARGUMENT AND IN THE CIRCUMSTANCES
WE WOULD FIND NO REASON FOR PURSUING SUCH A PROTEST.
AS TO THE COUNSEL'S QUESTIONS REGARDING THE VALIDTY OF EMPLOYING THE
TWO STEP ADVERTISING TECHNIQUES BECAUSE OF THE SECOND STEP BIDDING
RESULTS, IT IS SIGNIFICANT THAT PRIOR TO THE COMMENCEMENT OF THE SECOND
STEP POWERS RAISED QUESTIONS WITH THE PROCURING ACTIVITY REGARDING THE
USE OF THIS PROCUREMENT TECHNIQUE. IT APPEARS THAT THE AGENCY TOOK
ADVERSE ACTION WHEN IT PROCEEDED WITH THE SECOND STEP NOTWITHSTANDING
POWERS' OBJECTIONS AND IN SUCH CIRCUMSTANCES WE WOULD NOT CONSIDER ANY
PROTEST FILED HERE MORE THAN FIVE DAYS AFTER SUCH ADVERSE AGENCY ACTION.
SEE SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS
(4 CFR 20.2(A)) AND 52 COMP. GEN. 20 (1972). SINCE THE QUESTION OF THE
PROPER PROCUREMENT TECHNIQUE WAS FIRST PRESENTED HERE IN COUNSEL'S
LETTER OF JUNE 25, 1974, THE PROTEST WOULD BE UNTIMELY FILED AND WOULD
NOT BE CONSIDERED.
B-114868, AUG 13, 1974
HEADNOTES-UNAVAILABLE
OVERHEAD COSTS ARE REIMBURSABLE UNDER COST TYPE CONTRACT BETWEEN
NAVAJO TRIBE AND BUREAU OF INDIAN AFFAIRS INSOFAR AS THESE COSTS MEET
CRITERIA FOR REASONABLENESS AND ALLOCABILITY IN FPR COST PRINCIPLES
APPLICABLE TO CONTRACTS WITH STATE AND LOCAL GOVERNMENTS. ISSUE OF
PROPER METHOD FOR ALLOCATING THESE OVERHEAD COSTS IS A MATTER FOR
DETERMINATION INITIALLY BY CONTRACTING OFFICER WHO HAS AUTHORITY TO
ADMINISTER CONTRACTS ON BEHALF OF GOVERNMENT.
THE NAVAJO TRIBE:
A GOVERNMENT CERTIFYING OFFICER HAS REQUESTED AN ADVANCE DECISION
REGARDING THE LEGALITY OF CONTRACT PAYMENTS HEREINAFTER DESCRIBED.
THE UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN
AFFAIRS, NAVAJO AREA OFFICE, GALLUP, NEW MEXICO (BIA), HAS CONTRACTED
WITH THE NAVAJO TRIBE TO PROVIDE UP TO $18,998,416 TO MEET THE NEEDS OF
INDIAN FAMILIES AND FOR THE ADMINISTRATIVE OPERATION OF THE TRIBAL WORK
EXPERIENCE PROGRAM. IN BRIEF, THE NAVAJO TRIBE AGREED TO PROVIDE
QUALIFIED NAVAJO PERSONNEL TO ASSIST IN IMPLEMENTING THE GENERAL
ASSISTANCE PROGRAM; TO ADMINISTER AN EFFECTIVE WORK EXPERIENCE PROGRAM;
TO PROVIDE ADEQUATE WORKMAN'S COMPENSATION COVERAGE FOR PROJECT
WORKERS, AND TO INSURE THAT FUNDS ALLOCATED FOR THIS PROGRAM BE USED AS
SPECIFIED.
THE QUESTION PRESENTED IS WHETHER BIA MAY LEGALLY PAY, TO THE EXTENT
FUNDS ARE AVAILABLE, AN OVERHEAD CHARGE TO BE APPLIED TO THE TOTAL
EXPENDITURES UNDER THE CONTRACT, INCLUDING FUNDS PASSING THROUGH THE
NAVAJO TRIBE TO THE FINAL RECIPIENTS.
THE CERTIFYING OFFICER HAS REPORTED THAT THE BIA CONTRACTING OFFICER
AGREED TO ACCEPT BILLINGS FROM THE NAVAJO TRIBE AND MAKE PAYMENTS FOR
OVERHEAD. IN THIS CONNECTION, WE NOTE THAT CONTRACT MODIFICATION NO. 4
ALLOWS AN INCREASE OF $278,416 "TO PROVIDE FOR POSSIBLE OVERHEAD COSTS
FOR CONTRACT ADMINISTRATION." THE MODIFICATION FURTHER STATES THAT "THE
QUESTION OF OVERHEAD WILL BE SETTLED AS A RESULT OF AUDITS TO BE
PERFORMED BY THE OFFICE OF SURVEY AND REVIEW."
ALTHOUGH THE SUBJECT CONTRACT DOES NOT CONTAIN A COST LIMITATION
CLAUSE OR A REFERENCE TO THE COST PRINCIPLES CONTAINED IN THE FEDERAL
PROCUREMENT REGULATIONS (FPR), IT DOES PROVIDE FOR PAYMENTS, UP TO A
CEILING FIGURE, TO THE TRIBE UPON THE SUBMISSION OF ITEMIZED INVOICES.
THEREFORE, WE AGREE WITH THE POSITION SET FORTH IN A LETTER DATED JULY
5, 1974, FROM THE UNITED STATES DEPARTMENT OF INTERIOR, OFFICE OF THE
SOLICITOR THAT THE CONTRACT IN QUESTION IS A COST-REIMBURSEMENT TYPE
CONTRACT.
THE ALLOWABILITY OF ITEMS OF COST AS CHARGES TO CONTRACTS LET BY THE
BIA IS GOVERNED BY THE PRINCIPLES SET FORTH IN THE FPR. FPR 1-15.108
REQUIRES THAT THE COST PRINCIPLES CONTAINED IN FPR 1-15.7 ARE TO BE
APPLIED TO COST-REIMBURSEMENT CONTRACTS WITH STATE OR LOCAL GOVERNMENTS.
SINCE IN THE BIA'S OPINION THE TRIBE IS A LOCAL GOVERNMENT, THE
ABOVE-CITED COST PRINCIPLES, ARE APPLICABLE TO THE INSTANT CONTRACT.
FPR 1-15.704-1 DEFINES THE TOTAL COST OF A CONTRACT AS THE SUM OF THE
ALLOWABLE DIRECT AND INDIRECT COSTS ALLOCABLE TO THE CONTRACT, INCURRED
OR TO BE INCURRED, LESS ANY APPLICABLE CREDITS. THE TYPES OF COSTS
ASSOCIATED WITH THE TERM "OVERHEAD" FALL GENERALLY INTO THE INDIRECT
COST CATEGORY, DEFINED IN FPR 1-15.706-1 AS COSTS INCURRED FOR A COMMON
OR JOINT PURPOSE BENEFITING MORE THAN ONE COST OBJECTIVE AND NOT READILY
ASSIGNABLE TO THE COST OBJECTIVES SPECIFICALLY BENEFITED. INSOFAR AS
OVERHEAD COSTS MEET THE CRITERIA OF FPR 1-15.703-1 AND 1-15.703- 2 FOR
REASONABLENESS AND ALLOCABILITY, THEY MAY BE PROPERLY CONSIDERED AS A
COST OF PERFORMING THE CONTRACT AND CHARGEABLE TO IT. IN ADDITION, IT
IS OUR VIEW THAT THE ISSUE OF THE PROPER METHOD FOR ALLOCATING OVERHEAD
COST WILL BE MOOT IF, PRIOR TO PAYMENT, THE CONTRACTING OFFICER AND THE
AUDITORS ALLOCATE INDIRECT COSTS TO A PROPER BASE IN ACCORDANCE WITH THE
FEDERAL PROCUREMENT REGULATIONS. WE WOULD, OF COURSE, UPON THE REQUEST
OF THE CONTRACTING OFFICER PROVIDE OUR ADVICE AS TO THE PROPER METHOD
FOR ALLOCATING OVERHEAD COST.
B-178909, AUG 13, 1974
HEADNOTES-UNAVAILABLE
EMPLOYEE IN STEP 7 OF GS-11, WHO WAS DEMOTED TO STEP 10, GS-9, UNDER
REDUCTION IN FORCE AND WHO WAS SUBSEQUENTLY REPROMOTED TO FORMER GRADE,
REQUESTED RECONSIDERATION OF DECISION DENYING HIM A PAY ADJUSTMENT FOR
QUALITY INCREASES PREVIOUSLY RECEIVED IN HIGHER GRADE. PREVIOUS ACTION
IS SUSTAINED SINCE THERE IS NO AUTHORITY TO MAKE PAY ADJUSTMENT FOR
QUALITY INCREASES IN AN EMPLOYEE'S GRADE PRIOR TO DEMOTION AND HIS PAY
RATE UPON REPROMOTION WAS PROPERLY SET UNDER 5 U.S.C. 5334.
NORRIS VOVAKES - SALARY ADJUSTMENT:
IN OUR DECISION B-178909, AUGUST 6, 1973, WE SUSTAINED THE
DISALLOWANCE OF THE CLAIM OF MR. NORRIS VOVAKES FOR A SALARY ADJUSTMENT
IN CONNECTION WITH HIS REPROMOTION SUBSEQUENT TO A DEMOTION IN A
REDUCTION IN FORCE. MR. VOVAKES HAS REQUESTED RECONSIDERATION OF HIS
CASE ON THE GROUND THAT HIS RATE OF PAY UPON PROMOTION SHOULD HAVE BEEN
HIGHER BECAUSE OF QUALITY INCREASES GRANTED HIM PRIOR TO HIS DEMOTION.
DUE TO REDUCTION IN FORCE, MR. VOVAKES, A CIVILIAN EMPLOYEE OF THE
DEPARTMENT OF THE NAVY, WAS REDUCED IN GRADE FROM GS-11, STEP 7, TO
GS-9, STEP 10, WITH A RETAINED RATE PURSUANT TO 5 U.S.C. 5537 EFFECTIVE
DECEMBER 2, 1969. ON FEBRUARY 21, 1971, MR. VOVAKES WAS REPROMOTED TO
GS-11, STEP 7.
MR. VOVAKES WAS OF THE OPINION THAT UPON REPROMOTION, QUALITY
INCREASES RECEIVED BY HIM IN THE HIGHER GRADE PRIOR TO DEMOTION ENTITLED
HIM TO AN ADDITIONAL 2-STEP INCREASE. IN OUR EARLIER DECISION WE HELD
THAT THERE WAS NO AUTHORITY TO GRANT MR. VOVAKES AN ADJUSTMENT OF PAY IN
RECOGNITION OF THE QUALITY INCREASES HE HAD PREVIOUSLY RECEIVED IN HIS
HIGHER GRADE. WE ALSO POINTED OUT THAT THE QUALITY INCREASES RECEIVED
PRIOR TO DEMOTION HAD BEEN CONSIDERED IN ESTABLISHING THE SAVED RATE
UPON DEMOTION, AND WERE RESPONSIBLE FOR MR. VOVAKES BEING PLACED IN STEP
7, RATHER THAN A LOWER STEP, UPON REPROMOTION. MR. VOVAKES CONTENDS
THAT THE LATTER STATEMENT IS INACCURATE AND THAT THE LONG RANGE BENEFIT
OF THE QUALITY INCREASES STOPPED UPON REPROMOTION.
SECTION 5336 OF TITLE 5, UNITED STATES CODE, AUTHORIZING QUALITY STEP
INCREASES, PROVIDES IN RELEVANT PART:
"(A) WITHIN THE LIMIT OF AVAILABLE APPROPRIATIONS AND UNDER
REGULATIONS PRESCRIBED BY THE CIVIL SERVICE COMMISSION, THE HEAD OF EACH
AGENCY MAY GRANT ADDITIONAL STEP-INCREASES IN RECOGNITION OF HIGH
QUALITY PERFORMANCE ABOVE THAT ORDINARILY FOUND IN THE TYPE OF POSITION
CONCERNED. HOWEVER, AN EMPLOYEE IS ELIGIBLE UNDER THIS SECTION FOR ONLY
ONE ADDITIONAL STEP-INCREASES WITHIN ANY 52-WEEK PERIOD.
"(B) A STEP-INCREASE UNDER THIS SECTION IS IN ADDITION TO THOSE UNDER
SECTION 5335 OF THIS TITLE AND IS NOT AN EQUIVALENT INCREASE IN PAY
WITHIN THE MEANING OF SECTION 5335(A) OF THIS TITLE."
THE STATUTE CITED ABOVE CONTAINS AUTHORITY FOR GRANTING QUALITY
INCREASES IN AN EMPLOYEE'S GRADE WHICH HE OCCUPIED WHEN THEY WERE
GRANTED BUT CONTAINS NO PROVISION FOR MAKING ANY SPECIAL PAY ADJUSTMENT
WHEN AN EMPLOYEE IS REDUCED IN GRADE THROUGH NO FAULT OF HIS OWN, AS IN
THIS CASE, AND IS SUBSEQUENTLY PROMOTED. IN VIEW OF THIS AND SINCE WE
ARE AWARE OF NO OTHER STATUS PROVIDING FOR ADJUSTMENT FOR QUALITY
INCREASES IN A HIGHER GRADE PREVIOUSLY HELD BY AN EMPLOYEE, THE PAY RATE
OF AN EMPLOYEE WHO HAS BEEN DOWNGRADED AND SUBSEQUENTLY PROMOTED IS
REQUIRED TO BE FIXED IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C. 5334
GOVERNING PAY RATES UPON APPOINTMENT CHANGES. SINCE THE RECORD
INDICATES THAT MR. VOVAKES' PAY RATE WAS PROPERLY FIXED IN ACCORDANCE
WITH THAT STATUTE, AS EXPLAINED IN DETAIL IN OUR PREVIOUS DECISION,
THERE IS NO AUTHORITY FOR ANY ADDITIONAL PAY ADJUSTMENT.
REGARDING MR. VOVAKES' CONTENTION THAT THE LONG RANGE BENEFIT OF HIS
QUALITY INCREASES STOPPED UPON REPROMOTION, WE POINT OUT THAT HE
RECEIVED BENEFITS FROM SUCH INCREASES DURING HIS SAVED PAY PERIOD AND
THE PERIOD AFTER HIS REPROMOTION. THE RECORD INDICATES THAT HAD MR.
VOVAKES NOT RECEIVED THE QUALITY INCREASES, HIS PAY RATE AT THE TIME OF
HIS DEMOTION WOULD HAVE BEEN THAT OF GS-11, STEP 5, INSTEAD OF THAT OF
STEP 7. THE RATE OF PAY DURING HIS SAVED PAY PERIOD WAS THAT OF GS-11,
STEP 7, INSTEAD OF THAT OF STEP 5 WHICH HE WOULD HAVE RECEIVED HAD HE
NOT RECEIVED THE QUALITY INCREASES.
MOREOVER, UPON REPROMOTION, MR. VOVAKES' PAY RATE WAS FIXED AT GS-11
STEP 7, INSTEAD OF STEP 6, WHICH WOULD HAVE BEEN THE PROPER RATE HAD MR.
VOVAKES' RECEIVED THE STEP 5 PAY RATE AT THE TIME OF HIS DEMOTION.
THUS, MR. VOVAKES HAS RECEIVED AND HAS RETAINED INCREASED PAY BENEFITS
AS A RESULT OF THE QUALITY INCREASES HE RECEIVED.
IN VIEW OF THE ABOVE WE MUST SUSTAIN OUR PREVIOUS ACTION IN THIS
MATTER.
B-181068, AUG 13, 1974
HEADNOTES-UNAVAILABLE
1. FACT THAT A FIRM'S COLLECTIVE BARGAINING AGREEMENTS MAY NOT
COMPLY WITH THE PREVAILING WAGES AND CONDITIONS REQUIRED FOR USE IN
GOVERNMENT PROCUREMENTS PURSUANT TO SERVICE CONTRACT ACT DOES NOT
NECESSARILY REFLECT NEGATIVELY ON FIRM'S RESPONSIBILITY OR ELIGIBILITY
FOR CONTRACT AWARD SINCE SUCH AGREEMENTS ARE PROPERLY FOR APPLICATION TO
FIRM'S COMMERCIAL WORK AND BIDDERS ARE REQUIRED TO AGREE TO STANDARD
GOVERNMENT SOLICITATION PROVISIONS REQUIRING USE OF APPLICABLE
PREVAILING RATES FOR THE PARTICULAR CONTRACT.
2. VIOLATIONS OF SERVICE CONTRACT ACT ARE PROPERLY FOR DETERMINATION
BY DEPARTMENT OF LABOR.
3. GAO HAS DISCONTINUED PRACTICE OF REVIEWING BID PROTESTS OF
CONTRACTING OFFICER'S AFFIRMATIVE RESPONSIBILITY DETERMINATION EXCEPT
FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS (LOCAL 814):
THIS CASE INVOLVES A PROTEST OF THE AWARD OF CONTRACT NO.
GS-02S-8212 TO RED BALL VAN LINES (RED BALL) BY THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS LOCAL 814. SPECIFICALLY, LOCAL 814 HAS
PROTESTED THE AWARD MADE ON APRIL 10, 1974, BECAUSE OF RED BALL'S
FAILURE TO "ABIDE BY THE PREVAILING WAGES AND CONDITIONS APPLICABLE TO
PUBLIC CONTRACTS" PURSUANT TO THE SERVICE CONTRACT ACT OF 1965, 79 STAT.
1034, 41 U.S.C. SEC. 351. LOCAL 814 HAS SUBMITTED A COPY OF A LETTER TO
THE SECRETARY OF LABOR IN WHICH IT ENUMERATES THE ACTUAL TERMS OF RED
BALL'S COLLECTIVE BARGAINING AGREEMENTS AND CONCLUDES THAT THEY ARE NOT
IN ACCORD WITH THE PREVAILING WAGES AND CONDITIONS APPLICABLE TO PUBLIC
CONTRACTS.
THE PROVISIONS OF THE SERVICE CONTRACT ACT ARE FOR APPLICATION ONLY
IN CONNECTION WITH GOVERNMENT PROCEDURES. COLLECTIVE BARGARNING
AGREEMENTS CONTAINING TERMS WHICH ARE BELOW THE PREVAILING WAGES AND
CONDITIONS APPLICABLE TO GOVERNMENT CONTRACTS WOULD, HOWEVER, PROPERLY
BE FOR APPLICATION TO A FIRM'S COMMERCIAL CONTRACTS. MOREOVER, IN ORDER
TO SUBMIT A RESPONSIVE BID ON A GOVERNMENT PROCUREMENT A BIDDER WOULD BE
REQUIRED TO AGREE, PURSUANT TO STANDARD SOLICITATION PROVISIONS, TO
COMPLY WITH THE APPLICABLE PREVAILING RATES FOR PURPOSES OF THE
PARTICULAR CONTRACT INVOLVED. THEREFORE, WE DO NOT THINK THE FAFT THAT
A FIRM'S COLLECTIVE BARGAINING AGREEMENTS MAY NOT COMPLY WITH THE
PREVAILING WAGES AND CONDITIONS NECESSARILY REFLECTS NEGATIVELY ON A
FIRM'S RESPONSIBILITY OR ELIGIBILITY FOR AWARD OF A GOVERNMENT CONTRACT.
MOREOVER, UNDER THE SERVICE CONTRACT ACT VIOLATIONS OF THE ACT ARE
PROPERLY FOR DETERMINATION BY THE DEPARTMENT OF LABOR. OUR DEVELOPMENT
OF THIS MATTER ESTABLISHES THAT BY LETTER OF MAY 14, 1974, THE
DEPARTMENT ADVISED THE CONTRACTING OFFICER THAT A RECENT INVESTIGATION
FOUND THAT RED BALL OWED 29 EMPLOYEES A TOTAL OF $731 IN BACK WAGES
UNDER A PRIOR GOVERNMENT CONTRACT BUT THAT IT WAS IN A COMPLIANCE STATUS
WITH REGARD TO THE INSTANT CONTRACT. IN ADDITION WE HAVE BEEN
INFORMALLY ADVISED BY THE DEPARTMENT OF LABOR THAT IT PLANS TO TAKE NO
ACTION LEADING TO DEBARMENT UNDER THE SERVICE CONTRACT ACT BASED ON THE
FACTS DEVELOPED IN THE INVESTIGATION.
ACCORDINGLY, NO BASIS HAS BEEN PRESENTED FOR OBJECTING TO THE AWARD
TO RED BALL.
IN ADDITION, IT SHOULD BE NOTED THAT SUGSEQUENT TO THE FILING OF THIS
PROTEST THIS OFFICE HAS DISCONTINUED ITS PRACTICE OF REVIEWING BID
PROTESTS CONCERNING A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF
RESPONSIBILITY EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE
TANTAMOUNT TO FRAUD. 54 COMP. GEN. (1974), B-181724, JULY 26 1974.
B-181492, AUG 13, 1974
HEADNOTES-UNAVAILABLE
TELEFAX TO GAO FILED ON JUNE 12, 1974, PROTESTING REJECTION OF AN
OFFER AS TECHNICALLY UNACCEPTABLE WAS UNTIMELY UNDER 20.2(A) OF BID
PROTEST PROCEDURES AND STANDARDS WHERE RECORD SHOWS THAT NOTIFICATION OF
ADVERSE AGENCY ACTION (DEBRIEFING) OCCURRED ON MAY 16, 1974.
BERGEN EXPO SYSTEMS, INC.:
BY TELEFAX DATED JUNE 12, 1974, BERGEN EXPO SYSTEMS, INC. (BERGEN),
FILED A PROTEST CONCERNING REQUEST FOR PROPOSALS (RFP) N00600-74-R-5297,
ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, WASHINGTON D.C. BERGEN
CONTENDS THAT IT SUBMITTED THE LOWEST PRICED AND TECHNICALLY ACCEPTABLE
OFFER.
THE RFP, ISSUED ON JANUARY 10, 1974, REQUIRED THE SUBMISSION OF
TECHNICAL PROPOSALS BY FEBRUARY 11, 1974. NEGOTIATIONS WITH ACCEPTABLE
OFFERORS WERE CONDUCTED BY TELEPHONE ON MARCH 11, 1974. DURING THESE
NEGOTIATIONS, BERGEN WAS ADVISED THAT ITS PROJECTOR AND POWER SUPPLY
LOCATIONS WERE UNACCEPTABLE. BY LETTER DATED MARCH 12, 1974, THE NAVAL
REGIONAL PROCUREMENT OFFICE CONFIRMED THE PREVIOUS TELEPHONIC
NEGOTIATIONS AND ADVISED THAT "BEST AND FINAL" OFFERS WERE DUE BY MARCH
25, 1974.
THEREAFTER, AWARD WAS MADE TO FRASER-VOLPE CORP. ON APRIL 21, 1974.
THE CONTRACTING OFFICER REPORTS THAT MR. SANDIN OF BERGEN ATTENDED A
DEBREIFING CONFERENCE HELD ON MAY 16, 1974, AT THE NAVAL REGIONAL
PROCUREMENT OFFICE IN WASHINGTON, AND THAT BERGEN WAS SATISFIED WITH THE
DETERMINATION THAT ITS PROPOSAL WAS TECHNICALLY UNACCEPTABLE.
SUBSEQUENTLY, BERGEN FILED ITS PROTEST HERE ON JUNE 12, 1974. UNDER
THESE CIRCUMSTANCES, THE PROTEST IS UNTIMELY UNDER SECTION 20.2(A) OF
THE GENERAL ACCOUNTING OFFICE BID PROTEST PROCEDURES AND STANDARDS WHICH
PROVIDE THAT (1) BID PROTESTS SHALL BE FILED NOT LATER THAN 5 DAYS AFTER
THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS
EARLIER, AND (2) IF FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY
SUBSEQUENT PROTEST OUR OFFICE FILED WITHIN 5 WORKING DAYS OF
NOTIFICATION OF ADVERSE AGENCY ACTION WILL BE CONSIDERED PROVIDED THE
INITIAL PROTEST TO THE AGENCY WAS TIMELY.
BERGEN WAS NOTIFIED BY THE AGENDY ON MAY 16, 1974, THAT ITS PROPOSAL
WAS TECHNICALLY UNACCEPTABLE.
SINCE THE PROTEST OF JUNE 12 WAS NOT FILED IN OUR OFFICE WITHIN THE
REQUIRED TIME PERIOD, THE PROTEST IS UNTIMELY AND WILL NOT BE
CONSIDERED.
B-181907, AUG 13, 1974
HEADNOTES-UNAVAILABLE
PROTEST RECEIVED 6 DAYS AFTER BASIS OF PROTEST WAS KNOWN TO PROTESTER
AS RESULT OF DEBRIEFING IS UNTIMELY UNDER SECTION 20.2(A) OF GAO INTERIM
BID PROTEST PROCEDURES AND STANDARDS THAT REQUIRES PROTEST BE FILED
WITHIN 5 DAYS OF DATE PROTEST IS KNOWN.
DATA GENERAL CORPORATION:
DATA GENERAL CORPORATION (DATA) PROTESTS THAT IT SHOULD HAVE RECEIVED
THE CONTRACT AWARDED TO THE HEWLETT PACKARD CO., RESULTING FROM REQUEST
FOR PROPOSALS DABT56-74-R-0038, ISSUED AT FORT BELVOIR, VIRGINIA, ON
APRIL 26, 1974, BECAUSE IT OFFERED A LOWER PRICE.
ON JUNE 26, 1974, DATA WAS INFORMED THAT THE CONTRACT WAS AWARDED TO
THE HEWLETT PACKARD CO. ON JULY 3, 1974, DATA REQUESTED A COPY OF THE
CONTRACT AND A DEBRIEFING, WHICH WAS SCHEDULED AND HELD ON JULY 17,
1974. DATA'S PROTEST LETTER WAS RECEIVED BY OUR OFFICE ON JULY 25,
1974. DATA STATES THAT WHILE IT SUBMITTED A LOWER OFFER IN RESPONSE TO
THE JUNE 11, 1974, REQUEST FOR BEST AND FINAL OFFERS, THERE IS A
QUESTION WHETHER IT WAS CONSIDERED A MODIFICATION OF AN EARLIER OFFER OR
AS AN UNACCEPTABLE LATE PROPOSAL.
SECTION 20.2 (A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS
PROVIDES IN PART THAT "*** PROTESTS SHALL BE FILED NOT LATER THAN FIVE
DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN,
WHICHEVER IS EARLIER. ***" AT THE LATEST, THE BASIS OF PROTEST WAS
KNOWN TO DATA ON JULY 17, 1974, THE DATE OF THE DEBRIEFING. SINCE THE
PROTEST WAS NOT RECEIVED BY OUR OFFICE UNTIL 6 WORKING DAYS AFTER THE
BASIS OF THE PROTEST WAS KNOWN TO DATA, IT IS UNTIMELY AND WILL NOT BE
CONSIDERED ON ITS MERITS.
B-177959, AUG 12, 1974
HEADNOTES-UNAVAILABLE
1. CONTENTION THAT IRREGULARITIES INVOLVING FAILURE TO FOLLOW
PROCEDURES CONTAINED IN RFP AND FPR RENDERS CONTRACT AWARD ILLEGAL HAS
NO MERIT SINCE IRREGULARITIES DID NOT AFFECT THE SUBSTANCE OF THE
PROCUREMENT AND NOTHING IN RECORD OR REQUEST FOR RECONSIDERATION LEADS
TO CONCLUSION THAT AWARD VIOLATED LAW OR IMPLEMENTING PROCUREMENT
REGULATIONS.
2. QUESTION CONCERNING SUCCESSFUL OFFEROR'S COMPLIANCE WITH SECTION
1-1.1203-4 OF FPR RELATING TO "ABILITY TO OBTAIN" RELATES TO
RESPONSIBILITY OF OFFEROR WHICH WILL NOT BE DISTURBED ABSENT A SHOWING
OF FRAUD WHICH HAS NOT BEEN ALLEGED OR DEMONSTRATED.
3. FAILURE TO CONDUCT SITE VISIT OF FACILITIES OF UNSUCCESSFUL
OFFEROR WAS NOT PREJUDICIAL SINCE FPR 1-1.1203-4 DOES NOT REQUIRE SITE
VISIT ESPECIALLY WHEN AGENCY IS FAMILIAR WITH FACILITIES.
4. ALTHOUGH RFP CALLED FOR NUMERICAL SCORING OF PROPOSALS AND
FAILURE TO SO SCORE WAS IMPROPER, NO PREJUDICE RESULTED BECAUSE
EVALUATION RESULT WOULD HAVE BEEN NO DIFFERENT HAD NUMERICAL SCORING
BEEN CONDUCTED.
5. AWARD OF NEGOTIATED COST-TYPE CONTRACT TO TECHNICALLY SUPERIOR
OFFEROR, THOUGH AT A PRICE HIGHER THAN PROTESTER, IS WARRANTED SINCE
SELECTION REPRESENTED EXERCISE OF JUDGMENT THAT SUPERIOR OFFEROR COULD
PERFORM IN MANNER MORE ADVANTAGEOUS TO GOVERNMENT.
RECONSIDERATION OF NATIONAL BIOMEDICAL RESEARCH FOUNDATION PROTEST:
BY LETTER DATED NOVEMBER 21, 1973, NATIONAL BIOMEDICAL RESEARCH
FOUNDATION (NBRF) REQUESTED RECONSIDERATION OF 53 COMP. GEN. 278 (1973),
WHEREIN WE CONCLUDED THAT THE RECORD BEFORE US DID NOT REQUIRE OUR
OFFICE TO DISTURB THE AWARD OF CONTRACT NICHD-CMS-72-3 TO JET PROPULSION
LABORATORY (JPL).
NBRF QUESTIONS THE FACTUAL AND LEGAL GROUNDS OF OUR DECISION IN
SEVERAL RESPECTS. EACH OF ITS CONTENTIONS WILL BE TREATED AGAINST THE
BACKGROUND OF OUR DECISION OF OCTOBER 29 AND OUR LETTER OF THE SAME DATE
TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE. WHEN NECESSARY FOR
A COMPLETE DISCUSSION OF THE PARTICULAR ISSUES, THE FACTS SET FORTH IN
THE DECISION AND LETTER WILL BE SUPPLEMENTED FROM THE RECORD PRESENTLY
BEFORE OUR OFFICE.
NBRF'S FIRST CONTENTION CONCERNS THE CONCLUSION REACHED IN OUR
DECISION THAT "*** CERTAIN IRREGULARITIES DID OCCUR IN THIS PROCUREMENT;
HOWEVER, WE DO NOT FEEL THAT THEY WERE SUCH AS TO REQUIRE CANCELLATION.
***" NBRF ARGUES THAT THERE CAN BE NO DEGREES OF ILLEGALITY, AS
EVIDENCED BY ITS STATEMENT THAT "IN MY VIEW SOMETHING IS ILLEGAL OR NOT,
BUT IT CAN'T BE JUST A LITTLE BIT ILLEGAL. ***"
OUR OFFICE MAY, IN PROPER CIRCUMSTANCES, RECOMMEND CORRECTIVE ACTION
SUCH AS CANCELLATION OF THE CONTRACT OR TERMINATION FOR CONVENIENCE OF
THE GOVERNMENT. IN 52 COMP. GEN. 215 (1972), WE SAID:
"*** WE ARE IN AGREEMENT WITH THE POSITION OF THE COURT OF CLAIMS
THAT 'THE BINDING STAMP OF NULLITY' SHOULD BE IMPOSED ONLY WHEN THE
ILLEGALITY OF AN AWARD IS 'PLAIN', JOHN REINER & CO. V. UNITED STATES,
325 F.2D 438 (CT. CL. 1963), OR 'PALPABLE', WARREN BROTHERS ROADS CO. V.
UNITED STATES, 355 F.2D 612, 615 (CT. CL. 1965). IN DETERMINING WHETHER
AN AWARD IS PLAINLY OR PALPABLY ILLEGAL, WE BELIEVE THAT IF THE AWARD
WAS MADE CONTRARY TO STATUTORY OR REGULATORY REQUIREMENTS BECAUSE OF
SOME ACTION OR STATEMENT BY THE CONTRACTO (PRESTEX INC. V. UNITED
STATES, 320 F.2D 367 (CT. CL. 1963)), OR IF THE CONTRACTOR WAS ON DIRECT
NOTICE THAT THE PROCEDURES BEING FOLLOWED WERE VIOLATIVE OF SUCH
REQUIREMENTS (SCHOENBROD V. UNITED STATES, 410 F.2D 400 (CT. CL. 1969)),
THEN THE AWARD MAY BE CANCELED WITHOUT LIABILITY TO THE GOVERNMENT
EXCEPT TO THE EXTENT RECOVERY MAY BE HAD ON THE BASIS OF QUANTUM MERIUT.
ON THE OTHER HAND, IF THE CONTRACTOR DID NOT CONTRIBUTE TO THE MISTAKE
RESULTING IN THE AWARD AND WAS NOT ON DIRECT NOTICE BEFORE AWARD THAT
THE PROCEDURES BEING FOLLOWED WERE WRONG, THE AWARD SHOULD NOT BE
CONSIDERED PLAINLY OR PALPABLY ILLEGAL, AND THE CONTRACT MAY ONLY BE
TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT. JOHN REINER & CO. V.
UNITED STATES, SUPRA; BROWN & SON ELECTRIC CO. V. UNITED STATES, 325
F.2D 446 (CT. CL. 1963)."
HOWEVER, BASED ON OUR INITIAL REVIEW AND DECISION AND OUR
RECONSIDERATION HERE, WE CANNOT SAY THAT THE DEFECTS THAT WERE PRESENT
IN THE PROCUREMENT WARRANT DISTURBING THE AWARD MADE TO JPL. ALTHOUGH
NOT EXPRESSLY ARTICULATED IN THE OCTOBER 29 DECISION, IT WAS OUR
POSITION THAT THE IRREGULARITIES WHICH DID OCCUR - THE QUESTIONABLE
INTERPRETATION OF THE SPECIFICATION REQUIREMENT FOR "CHROMOSOME SPREAD
IMAGE SCANNING OF GLASS SLIDES DIRECTLY FROM THE MICROSCOPE OR FROM
PHOTOMICROGRAPHS;" THE FAILURE TO CLARIFY WHETHER JPL'S PROPOSAL WAS IN
COMPLIANCE WITH THE SPECIFICATION REQUIREMENT TO "DEVELOP STATISTICAL
PROGRAMS FOR USE WITH THE SYSTEM;" THE FAILURE OF THE TECHNICAL
EVALUATION PANEL TO NUMERICALLY SCORE EACH PROPOSAL; AND THE DOUBTFUL
VALIDITY OF THE CONTRACTING OFFICER'S COST AND BEST BUY ANALYSIS -
PROVIDED NO BASES TO OBJECT TO THE AWARD SINCE THE COMPLAINED-OF MATTERS
DID NOT AFFECT THE SUBSTANCE OF THE PROCUREMENT.
FURTHERMORE, AS NOTED IN OUR LETTER OF OCTOBER 29, 1973, THESE
IRREGULARITIES WERE BROUGHT TO THE ATTENTION OF THE SECRETARY OF HEALTH,
EDUCATION, AND WELFARE, WITH THE EXPECTATION THAT THEY WILL NOT OCCUR IN
FUTURE PROCUREMENTS.
NBRF'S SECOND CONTENTION CONCERNS WHAT THAT FIRM CONSIDERS TO BE THE
MOST ADVANTAGEOUS ISSUE RAISED IN ITS PROTEST. ONE OF THE REASONS GIVEN
BY THE CONTRACTING OFFICER IN HIS LETTER OF FEBRUARY 13, 1973, AS TO WHY
AWARD WAS NOT MADE TO NBRF WAS THAT "IN COMMENTING ON YOUR PROPOSAL, THE
REVIEW COMMITTEE POINTED OUT THAT NONE OF THE KNOWN PURCHASERS OF YOUR
SYSTEM HAVE FOUND IT SUITABLE TO PERFORM ROUTINE CHROMOSOME ANALYSIS.
***" NBRF CONTENDS THAT THIS IS THE PRIMARY REASON WHY NBRF WAS NOT
AWARDED THE CONTRACT AND THAT GAO DID NOT ADEQUATELY CONSIDER IT. IN
ADDITION, ONE OF THE MISSTATEMENTS OF FACT ALLEGED IN NBRF'S FIFTH
CONTENTION, WHICH WE WILL CONSIDER HERE, CONCERNS THIS ISSUE. THE
DECISION OF OCTOBER 29 STATED THAT "MOREOVER, IT IS OUR OPINION BASED
UPON A REVIEW OF THE RECORD THAT THE PANEL'S RECOMMENDATION OF JPL WAS
BASED PRIMARILY UPON ITS AFFIRMATIVE FINDINGS WITH RESPECT TO JPL'S
PROPOSAL AND ABILITY TO SUCCESSFULLY COMPLETE THE PROJECT, RATHER THAN
UPON ANY NEGATIVE OPINIONS EXPRESSED BY SOME OF THE PANEL MEMBERS AS TO
THE PERFORMANCE OF YOUR EQUIPMENT UNDER EARLIER COMMERCIAL CONTRACTS.
HENCE, WE DO NOT ASCRIBE ANY PARTICULAR SIGNIFICANCE TO THE VALIDITY OF
THESE OPINIONS INSOFAR AS THE RECOMMENDATION OF JPL IS CONCERNED." NBRF
CONTENDS THAT THE ABOVE-QUOTED STATEMENT IS IN DIRECT CONTRADICTION TO
THE FACTS AS STATED IN THE FEBRUARY 13 LETTER FROM THE CONTRACTING
OFFICER.
IT IS OUR POSITION THAT THE NEGATIVE STATEMENTS OF THE REVIEW PANEL
DID NOT CONSTITUTE THE PRIMARY REASON FOR NOT MAKING AWARD TO NBRF; AND
THAT THE CONCLUSION REACHED IN OUR DECISION IS NOT IN DIRECT
CONTRADICTION WITH THE FEBRUARY 13 LETTER FOR THE FOLLOWING REASONS:
ALTHOUGH NBRF CONTENDS THAT THE NEGATIVE STATEMENTS CONCERNING THE
PAST PERFORMANCE OF ITS SYSTEM WERE THE PRIMARY REASONS WHY NBRF WAS NOT
AWARDED THE CONTRACT, IT IS CLEAR FROM THE FEBRUARY 13 LETTER THAT THE
AWARD WAS MADE TO JPL BASED UPON THE AFFIRMATIVE DETERMINATIONS OF THE
TECHNICAL REVIEW PANEL THAT THE JPL PROPOSAL "*** OFFERED A BETTER
PROBABILITY OF ACHIEVING THE OBJECTIVES OF THE CONTRACT PROGRAM. ***"
IN ADDITION, THE LETTER DISCUSSED "SOME OF THE REASONS" WHY AWARD WAS
NOT MADE TO NBRF. THESE REASONS WERE (1) THE NEGATIVE STATEMENTS
CONCERNING THE PAST PERFORMANCE OF THE SYSTEM; (2) THE GEOGRAPHIC
DISTANCE SEPARATING THE COMPUTER DEVELOPMENT FROM THE CYTOGENETICS
LABORATORY; (3) THE LACK OF DEMONSTRATION OF EXPECTED DIFFICULTIES IN
ADAPTING ITS APPROACH TO LARGE OF CHROMOSOME PREPARATIIONS; (4) THE
DEFICIENCY IN TESTING THE PROTOTYPE SYSTEM; AND (5) THE FAILURE TO
PROVIDE THE STRATEGY USED FOR CONVENTIONAL KARYOTYPE ANALYSIS. NEITHER
THE FEBRUARY 13 LETTER NOR THE REMAINDER OF THE RECORD SUPPORTS NBRF'S
CONTENTION THAT THE NEGATIVE STATEMENTS WERE THE PRIMARY REASONS WHY
NBRF WAS NOT AWARDED THE CONTRACT. RATHER, AS WE STATED IN OUR
DECISION, THE RECORD REVEALS THAT AWARD TO JPL WAS PREDICATED UPON AN
AFFIRMATIVE DETERMINATION OF THE SUPERIORITY OF JPL'S PROPOSAL.
THIRD, NBRF CONTENDS THAT "ANOTHER IMPORTANT POINT SIDESTEPPED BY THE
GAO IN ITS EVALUATION CONCERNS THE FPR REGULATION KNOWN AS 'THE ABILITY
TO OBTAIN' (FPR 1-1.1203-4). ***" SECTION 1-1.1203-4 OF THE FPR
PROVIDES AS FOLLOWS:
"EXCEPT TO THE EXTENT THAT A PROSPECTIVE CONTRACTOR PROPOSES TO
PERFORM THE CONTRACT BY SUBCONTRACTING *** ACCEPTABLE EVIDENCE OF HIS
'ABILITY TO OBTAIN' EQUIPMENT, FACILITIES, AND PERSONNEL *** SHALL BE
REQUIRED. IF THESE ARE NOT REPRESENTED IN THE CONTRACTOR'S CURRENT
OPERATIONS, THEY SHOULD NORMALLY BE SUPPORTED BY COMMITMENT OR EXPLICIT
ARRANGEMENT, WHICH IS IN EXISTENCE AT THE TIME THE CONTRACT IS TO BE
AWARDED, FOR THE RENTAL, PURCHASE, OR OTHER ACQUISITION OF SUCH
RESOURCES, EQUIPMENT, FACILITIES, OR PERSONNEL."
NBRF MAINTAINS THAT, CONTRARY TO THE ABOVE-QUOTED CLAUSE, THE JPL
PROPOSAL EVIDENCES THAT THEY HAVE NOT YET DEVELOPED EVERYTHING THAT IS
REQUIRED BY THE RFP BUT THAT IT INTENDS TO RESEARCH AND DEVELOP THESE
REQUIREMENTS.
NBRF RAISED THIS ALLEGATION QUESTIONING JPL'S "ABILITY TO OBTAIN" IN
ITS PROTEST AND OUR OFFICE DID NOT "SIDESTEP" THIS ISSUE IN THE OCTOBER
29 DECISION. RATHER, WE CONSIDERED THIS ALLEGATION AND CONCLUDED THAT
THE DETERMINATION OF JPL'S COMPLIANCE WITH SECTION 1-1.1203-4 OF THE FRP
IS A MATTER OF RESPONSIBILITY AND IS PROPERLY WITHIN THE PURVIEW OF THE
PROCURING ACTIVITY. WE NOTED THAT "***
ONE OF THE MAJOR REASONS FOR THE TECHNICAL PANEL'S SITE VISIT TO JPL
WAS TO ASCERTAIN JPL'S ABILITY TO OBTAIN EQUIPMENT, FACILITIES AND
PERSONNEL AS STATED IN ITS PROPOSAL," AND THAT "THE TECHNICAL PANEL WAS
SATISIFED WITH JPL'S ABILITY TO DO SO. ***" CONSEQUENTLY, WE DETERMINED
THAT THE RECORD REASONABLY SUPPORTED THE PROCURING ACTIVITY'S
AFFIRMATIVE DETERMINATION OF JPL'S COMPLIANCE WITH THIS SECTION OF THE
FPR.
AS WE STATED IN B-181076, JUNE 5, 1974:
"THE DETERMINATION OF A PROPOSED CONTRACTOR'S RESPONSIBILITY IS
LARGELY WITHIN THE DISCRETION OF THE CONTRACTING OFFICER. THE
CONTRACTING ACTIVITY MUST HANDLE THE DAY-TO-DAY ADMINISTRATION OF THE
CONTRACT AND BEAR THE BRUNT OF ANY DIFFICULTIES EXPERIENCED BY REASON OF
THE CONTRACTOR'S LACK OF ABILITY. IF, PURSUANT TO THE APPLICABLE
REGULATIONS, THE CONTRACTING OFFICER FINDS THE PROPOSED CONTRACTOR
RESPONSBILE, WE DO NOT BELIEVE THE FINDING SHOULD BE DISTURBED EXCEPT ON
THE BASIS OF FRAUD. ***"
SINCE NO FRAUD HAS BEEN ALLEGED OR DEMONSTRATED, WE MUST DECLINE TO
FURTHER CONSIDER THE MATTER.
WITH REGARD TO NBRF'S FOURTH CONTENTION CONCERNING THE REASONSING
BEHIND THE GAO REFUSAL TO CANCEL THE CONTRACT, NBRF MAINTAINS THAT "***
GAO USES THE REASONING THAT BECAUSE THE CONTRACT WAS AWARDED, THEN OUR
(NBRF) OBJECTION IS NOT VALID. ***" AS AN EXAMPLE OF WHAT NBRF
CONSIDERS TO BE INCORRECT REASONING ON THE PART OF GAO, IT QUOTES THE
FOLLOWING SENTENCE FROM THE OCTOBER 29 DECISION: "'THE SCIENTIFIC
REVIEW PANEL AND THE CONTRACTING OFFICER AGREE THAT THE JPL PROPOSAL
SATISFIES THESE RFP REQUIREMENTS' CONCERNING THE REQUIREMENTS TO RECORD
COORDINATES TO THE NEAREST 1.25 MICRA."
IT APPEARS AS IF NBRF'S CONCLUSION THAT THE REASONING USED BY GAO WAS
IMPROPER IS PREDICATED UPON A MISUNDERSTANDING OF THE RATIONALE
CONTAINED IN THE DECISION.
AS WAS POINTED OUT IN THAT DECISION, IT IS A LONG-HELD AND FREQUENTLY
STATED RULE OF OUR OFFICE THAT THE DRAFTING OF SPECIFICATIONS TO MEET
THE MINIMUM NEEDS OF THE GOVERNMENT, AS WELL AS THE FACTUAL
DETERMINATION WHETHER ITEMS OFFERED MEET THE SPECIFICATIONS, IS PROPERLY
THE FUNCTION OF THE PROCURING AGENCY AND NOT SUBJECT TO QUESTION BY OUR
OFFICE UNLESS THE AGENCY HAS ACTED ARBITRARILY OR INREASONABLY. 52
COMP. GEN. 393 (1972); B-169633(2), JANUARY 4, 1972. IN THE DECISION
OF OCTOBER 29, OUR OFFICE TOOK THE POSITION, WHICH WE AFFIRM HERE, THAT
A REVIEW OF THE RECORD DOES NOT EVIDENCE THAT THE PROCURING ACTIVITY'S
CONCLUSION THAT JPL'S PROPOSAL MEETS THE SPECIFICATIONS IS EITHER
ARBITRARY OR UNREASONABLE. CONSEQUENTLY, OUR OFFICE CORRECTLY CONCLUDED
THAT THE CONFORMITY OF JPL'S PROPOSAL TO THE SPECIFICATIONS WAS NOT
SUBJECT TO QUESTION BY OUR OFFICE. OUR FUNCTION IN THIS SPECIFICATION
AREA IS TO TEST THE REASONABLENESS OF THE AGENCY'S ACTION AGAINST THE
RECORD AS IMPLEMENTED BY COMMENTS OF INTERESTED PARTIES. WE FOUND NO
REASON ON THE RECORD TO HOLD THAT THE AGENCY EXERCISED ITS JUDGMENT IN A
MANNER WHICH WAS EITHER PREJUDICIAL TO YOUR COMPETITIVE POSITION OR
OTHERWISE UNREASONABLE.
THE FIFTH CONTENTION OF NBRF CONCERNS THE ALLEGATION OF TWO
MISSTATEMENTS OF FACT THAT ARE CONTAINED IN THE OCTOBER 29 DECISION.
THE FIRST MISSTATEMENT HAS BEEN DISCUSSED ABOVE IN CONJUNCTION WITH
NBRF'S SECOND CONTENTION. THE SECOND MISSTATEMENT CONCERNS THE
FOLLOWING SENTENCE CONTAINED IN THE DECISION: "*** ALTHOUGH
CONSIDERATION WAS GIVEN TO VISITING YOUR FACILITIES, THE IDEA WAS
REJECTED BECAUSE AT LEAST TWO OF THE PANEL MEMBERS WERE FAMILIAR WITH
YOUR FACILITIES AS A RESULT OF A RECENT VISIT IN CONNECTION WITH A
GRANT. IN THESE CIRCUMSTANCES, WE DO NOT BELIEVE THE DECISION WAS
ARBITRARY." NBRF ALLEGES THAT CONTRARY TO THE ABOVE-QUOTED STATEMENT,
NONE OF THE TECHNICAL EVALUATION MEMBERS HAS VISITED ITS LABORATORIES
WITHIN THE LAST FIVE YEARS. FURTHERMORE, NBRF MAINTAINS THAT THE
FEDERAL PROCUREMENT REGULATIONS REQUIRE A PROJECT SITE VISIT TO ASSESS
CURRENT CAPABILITIES.
AS STATED IN THE CONTRACTING OFFICER'S MEMORANDUM FOR THE RECORD
DATED JUNE 12, 1973, THE REASON NO SITE VISIT OF NBRF WAS CONDUCTED IS
AS FOLLOWS:
"THE PANEL WAS KNOWLEDGEABLE OF THE NBRF CAPABILITIES AND FACILITIES.
IT IS NOT THE GOVERNMENT'S POLICY, NOR IS IT ECONOMICALLY FEASIBLE, TO
ROUTINELY PERFORM A SITE VISIT OF ALL PROPOSALS RECEIVED IN RESPONSE TO
SOLICITATIONS. IN ACCORDANCE WITH FPR 1-1.1205-4(B), SITE VISITS SHOULD
BE MADE WHEN INFORMATION IS NOT AVAILABLE BY OTHER MEANS TO DETERMINE
THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR. OMISSION OF THE SITE
VISIT TO NBRF DOES NOT IMPLY INADEQUATE EVALUATION OF THEIR PROPOSAL.
THE PANEL DETERMINED, AND THE CONTRACTING OFFICER CONCURRED, AFTER
REVIEW THAT A SITE VISIT WAS NOT REQUIRED."
CONSEQUENTLY, ALTHOUGH OUR DECISION CORRECTLY CONCLUDED THAT THE
DETERMINATION TO NOT CONDUCT A SITE VISIT WAS NOT ARBITRARY, AS
DISCUSSED BELOW, THE FOLLOWING ADDITIONAL DATA IN THIS REGARD IS
APPROPRIATE.
THE RECORD BEFORE US CONTAINS A MEMORANDUM DATED FEBRUARY 7, 1973,
FROM FELIX DE LA CRUZ, M.D., SPECIAL ASSISTANT FOR PEDIATRICS TO THE
CONTRACTING OFFICER. IN THIS MEMORANDUM, DR. DE LA CRUZ STATES THAT ON
JANUARY 12, 1973 (WHICH WAS PRIOR TO THE DATE OF CONTRACT AWARD,
FEBRUARY 1, 1973), THE NBRF WAS SITE VISITED BY A SPECIAL STUDY SECTION
OF NIH TO REVIEW AN APPLICATION FOR A GRANT NUMBER 2 R01 HD 05361-10
"ANALYSIS OF CHROMOSOME KARYGRAMS," AND THAT THE VISITORS INCLUDED TWO
MEMBERS OF THE TECHNICAL EVALUATION PANEL. CONSEQUENTLY, THERE IS A
FACTUAL DISPUTE AS TO WHETHER OR NOT THE VISIT IN CONNECTION WITH THE
GRANT APPLICATION OCCURRED. HOWEVER, THE RESOLUTION OF THIS DISPUTE IS
OF NO RELEVANCE TO THE DETERMINATION OF THE BASIC ISSUE INVOLVED, WHICH
IS WHETHER THE FAILURE OF THE PROCURING ACTIVITY TO CONDUCT A SITE VISIT
OF NBRF IN CONJUNCTION WITH ITS PROPOSAL WAS PREJUDICIAL TO NBRF. THE
RECORD INDICATES THAT THE DETERMINATION TO CONDUCT A SITE VISIT OF JPL'S
FACILITIES WAS DUE TO DOUBTS OF THE EVALUATION PANEL CONCERNING WHETHER
JPL HAD CERTAIN OPERATIONAL EQUIPMENT ON HAND, AS ASSERTED BY ITS
PROPOSAL. THE EVALUATION PANEL RAISED QUESTIONS CONCERNING NBRF'S
PROPOSAL IN THE AREAS OF "HOW TECHNIQUES WORK, I.E. % OF CHROMOSOMES VS
% OF NON-CHROMOSOME" AND "QUALITATIVE INFORMATION FOR DOCUMENTATION OF
INFORMATION OBTAINED BY THE SUBCONTRACTOR FROM NBRF" AND REQUESTED THAT
NBRF PROVIDE WRITTEN CLARIFICATION OF THESE ISSUES.
THE DETERMINATIONS OF THE PANEL THAT A SITE VISIT TO JPL'S FACILITIES
WAS NECESSARY AND THAT A WRITTEN RESPONSE BY NBRF WAS SUFFICIENT FOR
CLARIFICATION OF THE QUESTIONS RAISED ARE WITHIN THE DISCRETION OF THE
PANEL AND IN NO WAY INDICATE EITHER ARBITRARY BEHAVIOR ON THE PART OF
THE PANEL OR PREJUDICE TO NBRF. FURTHERMORE, CONTRARY TO THE
ALLEGATIONS OF NBRF, NEITHER SECTION 1-1.1203-4, NOR ANY OTHER SECTION
OF THE FPR, REQUIRES THE CONDUCT OF A SITE VISIT TO A PROSPECTIVE
CONTRACTOR.
NBRF'S SIXTH CONTENTION CONCERNS THE FAILURE OF THE EVALUATION PANEL
TO NUMERICALLY SCORE THE PROPOSALS AS WAS REQUIRED BY THE RFP. THAT
FIRM CONTENDS THAT THIS FAILURE WAS PREJUDICIAL TO IT AND THAT NBRF'S
"*** TECHNICAL SUPERIORITY OVER JPL AND ALL OTHER OFFERORS WOULD HAVE
BEEN VIVIDLY APPARENT IN THE NUMERICAL SCORES. ***" THE RFP CALLED FOR
NUMERICAL SCORING OF THE PROPOSALS SUBMITTED AND THE FAILURE OF THE
EVALUATION PANEL TO SO SCORE THE PROPOSALS WAS IMPROPER. HOWEVER, UPON
REVIEW OF THE RECORD WE CANNOT CONCLUDE THAT A DIFFERENT RESULT WOULD
HAVE BEEN REACHED IF THE NUMERICAL SCORING HAD BEEN PERFORMED.
IN CONCLUSION, NBRF MAINTAINS THAT GAO'S ANALYSIS "*** SEEMS TO HAVE
ENTIRELY OVERLOOKED OR IGNORED THE BASIC POINTS OF OUR PROTEST WHICH CAN
BE SIMPLY SUMMED UP AS FOLLOWS: ***" (1) THAT THE AWARD TO JPL WAS NOT
THE MOST ADVANTAGEOUS TO THE GOVERNMENT; (2) THAT THE INFORMATION
CONSIDERED BY THE CONTRACTING OFFICER WAS INCOMPLETE AND INACCURATE;
(3) THAT THE PROCEDURES REQUIRED BY THE FPR AND RFP WERE VIOLATED BY THE
CONTRACTING OFFICER; AND (4) THAT THE CONTRACTING OFFICER SHOWED
PREJUDICE AGAINST NBRF AND BIAS IN FAVOR OF JPL.
WITH REGARD TO NBRF'S ALLEGATION THAT THE CONTRACT AWARD TO JPL WAS
NOT MOST ADVANTAGEOUS TO THE GOVERNMENT, IT SHOULD BE NOTED THAT OUR
DECISION CONSIDERED THIS ALLEGATION AND CONCLUDED THAT:
"NOTWITHSTANDING OUR VIEW AS TO THE VALIDITY OF THE COST AND BEST-BUY
ANALYSIS, WE DO NOT BELIEVE THAT CANCELLATION IS JUSTIFIED IN VIEW OF
THE NATURE OF THE PROCUREMENT AND APPLICABLE REGULATION, FPR 1-3.805-2,
WHICH PROVIDES:
'IN SELECTING THE CONTRACTOR FOR A COST-REIMBURSEMENT TYPE CONTRACT,
ESTIMATED COSTS OF CONTRACT PERFORMANCE AND PROPOSED FEES SHOULD NOT BE
CONSIDERED AS CONTROLLING SINCE IN THIS TYPE OF CONTRACT ADVANCE
ESTIMATES OF COST MAY NOT PROVIDE VALID INDICATOR OF FINAL ACTUAL COSTS.
*** BEYOND THIS, HOWEVER, THE PRIMARY CONSIDERATION IN DETERMINING TO
WHOM THE AWARD SHALL BE MADE IS: WHICH CONTRACTOR CAN PERFORM THE
CONTRACT IN A MANNER MOST ADVANTAGEOUS TO THE GOVERNMENT.'
"WE NOTE THAT THE TECHNICAL REVIEW PANEL WAS UNANIMOUS IN ITS
RECOMMENDATION THAT JPL BE SELECTED BASED UPON TECHNICAL CONSIDERATIONS.
THEREFORE, WE DO NOT BELIEVE ANY SUBSTANTIAL PREJUDICE RESULTED FROM
ANY ERRORS IN THE COST ANALYSIS."
IN 50 COMP. GEN. 110 (1970), IT WAS HELD THAT IN A NEGOTIATED
PROCUREMENT IT IS WITHIN THE DISCRETION OF THE CONTRACTING AGENCY TO
DETERMINE WHETHER IT IS TO THE GOVERNMENT'S ADVANTAGE TO AWARD A
CONTRACT TO OTHER THAN THE LOW OFFEROR. IT DOES NOT APPEAR IN THE
PRESENT INSTANCE THAT THE PROCURING ACTIVITY ABUSED ITS BROAD DISCRETION
TO SELECT THE CONTRACTOR WHICH, IN ITS JUDGMENT, CAN PERFORM THE
CONTRACT IN THE MANNER MOST ADVANTAGEOUS TO THE GOVERNMENT.
IN ADDITION, IT SHOULD BE NOTED THAT WE HAVE BEEN INFORMED BY
MEMORANDUM DATED JANUARY 7, 1974, FROM THE CONTRACTING OFFICER THAT "***
THE ORIGINAL FAVORABLE TECHNICAL EVALUATION CONSIDERATION THAT LED TO
THE SELECTION OF JPL FOR AWARD HAVE BEEN CONFIRMED AND REINFORCED BY THE
CONTRACTOR'S SUCCESSFUL PERFORMANCE TO DATE ***.
IN ESSENCE, NBRF'S ALLEGATIONS THAT THE INFORMATION CONSIDERED BY THE
CONTRACTING OFFICER WAS INCOMPLETE AND INACCURATE AND THAT THE
CONTRACTING OFFICER SHOWED PREJUDICE AGAINST NBRF AND BIAS IN FAVOR OF
JPL CONCERN QUESTIONS OF FACT AND OF THE CREDIBILITY OF THE MEMBERS OF
THE TECHNICAL EVALUATION PANEL AND THE CONTRACTING OFFICER. UPON A
REVIEW OF THE RECORD WE FIND NO SUBSTANTIATION OF THESE CONTENTIONS.
WE HAVE CONSIDERED NBRF'S ALLEGATION CONCERNING THE CONTRACTING
OFFICER'S FAILURE TO FOLLOW THE PROCUEDURES REQUIRED BY FEDERAL
PROCUREMENT REGULATIONS AND THE REQUEST FOR PROPOSALS IN THE FIRST ISSUE
RAISED ABOVE. WE CONCLUDED THAT THE IRREGULAITIES WHICH OCCURED, AS
DISCUSSED IN DETAIL IN OUR DECISION OF OCTOBER 29, DO NOT NECESSITATE
THE TERMINATION OF THE AWARD TO JPL. WE REMAIN OF THIS VIEW.
THEREFORE, FOR THE REASONS SET FORTH ABOVE, OUR DECISION OF OCTOBER
29 IS AFFIRMED.
B-180169, AUG 12, 1974
HEADNOTES-UNAVAILABLE
1. SINCE BID CORRECTION IS ULTIMATE REMEDY FOR MISTAKE IN BID
ALLEGED BEFORE AWARD WHEN CONTRACTING OFFICER ONLY ADVISED BIDDER OF
WITHDRAWAL OPTION, OMITTING NOTIFICATION OF POSSIBLE CORRECTIVE ACTION
IN VIOLATION OF ASPR 2-406.3(E), GAO WILL REVIEW WORKSHEETS UNDER
PREAWARD STANDARD OF ASPR 2-406.3(D).
2. WHERE AFTER ALLEGATION OF MISTAKE, BIDDER ACCEPTS BID AT
ALLEGEDLY MISTAKEN AMOUNT WITH KNOWLEDGE IT COULD HAVE WITHDRAWN BID,
BUT WITHOUT KNOWLEDGE OF POSSIBLE CORRECTION, IF GAO REVIEW FOR POSSIBLE
CORRECTION UNDER PREAWARD STANDARD OF ASPR 2-406.3(D) CONCLUDES BIDDER
WOULD NOT HAVE ENTITLED TO CORRECTION, BIDDER HAS NOT BEEN PREJUDICED.
3. CONTRACTING OFFICER FAILURE TO APPRISE BIDDER OF MISTAKE IN BID
OPTION OF CORRECTION DOES NOT ENTITLE BIDDER TO GREATER REMEDY AFTER
AWARD THAN WOULD HAVE BEEN AVAILABLE BEFORE AWARD.
BROMLEY CONTRACTING CO. INC.:
BROMLEY CONTRACTING CO. INC. (BROMLEY) HAS REQUESTED THAT ITS
CONTRACT DAHC02-73-C-0505 FOR BUILDING RESTORATION AT WEST POINT
MILITARY ACADEMY (ACADEMY) BE REFORMED AS A RESULT OF AN ALLEGED MISTAKE
MADE IN BROMLEY'S RESPONSE TO INVITATION FOR BIDS (IFB)
DAHC02-73-B-1737.
BIDS WERE REQUIRED FOR ITEM 1, ADDITIVES A, B, AND C, AND ITEM 2.
FOUR BIDS WERE RECEIVED AND OPENED AS SCHEDULED ON JUNE 15, 1973, WITH
THE FOLLOWING TOTAL PRICES:
BROMLEY $306,534
PALMER WATERPROOFING CO. $398,650
MELROSE WATERPROOFING $1,034,000
LANE CO., INC. $1,183,000
THE GOVERNMENT ESTIMATE WAS $296,560. BROMLEY WAS ALSO LOW ON EACH
INDIVIDUAL ITEM IN THE AMOUNTS OF $84,200, $18,750, $64,500, $14,650,
AND $124,434, RESPECTIVELY.
BY LETTER DATED JUNE 19, 1973, BROMLEY ADVISED THE CONTRACTING
OFFICER THAT IT HAD MADE A MISTAKE IN ITS BID, BUT DID NOT INDICATE THE
MANNER IN WHICH IT WAS MADE OR THE AMOUNT OF THE REQUESTED CORRECTION.
ON JUNE 22, 1973, BROMLEY MET WITH THE CONTRACT ADMINISTRATOR TO DISCUSS
THE CLAIM. NO FURTHER DOCUMENTARY EVIDENCE WAS SUBMITTED AT THE
MEETING. BROMLEY WAS INFORMED BY THE CONTRACT ADMINISTRATOR THAT THE
ACADEMY COULD NOT CORRECT THE BID, BUT COULD PERMIT ITS WITHDRAWL.
HOWEVER, NO FURTHER INFORMATION CONCERNING THE REQUISITE PROCEDURES FOR
BID CORRECTION WAS IMPARTED. IN FACT, THE POSSIBILITY THAT THE BID
COULD BE CORRECTED WAS NEVER MENTIONED. NO FURTHER CORRESPONDENCE ON
THE MATTER OCCURRED. ON JUNE 29, 1973, BROMLEY ACCEPTED THE CONTRACT
FOR ITEM 1, WITH ADDITIVE A AND B, AND ITEM 2 AT $291,884.
BROMLEY HAS SUBMITTED ITS WORKSHEETS, WITH EXPLANATION, REQUESTING
THE
"$310,330. TOTAL OF ALL BOTTOM COLUMNS SHEET #1
NET DEDUCT 9,800. BOTTOM OF COLUMN 6 DEDUCT 6100 SQ. FT.
300,530. ADD 6100 @ 40[
DEDUCT 2,000. BOTTOM OF COLUMN 4
298,530. OR OUR USUAL BID OF $298,434.00
TO THIS $298,434.00 WE SHOULD HAVE, AND MEANT TO ADD 19 AND 10 OR 30%
TO COST FIGURES AS FOLLOWS: $298,434.00 X 30% = $89,530.00 OR A TOTAL
OF $387,964.00. IN ACCORDANCE WITH OUR USUAL BID PRACTICE, OUR PRICE
WOULD HAVE BEEN $387,434.00 IF NOT FOR THE BID MISTAKE OF WHICH THE
GOVERNMENT WAS ON ACTUAL NOTICE."
THE GENERAL COUNSEL, UNITED STATES ARMY MATERIEL COMMAND, AFTER
REVIEW OF THE WORKSHEETS, HAS RECOMMENDED THAT NO RELIEF BE GRANTED.
THIS RECOMMENDATION IS PREMISED UPON THE CONCLUSION THAT THE EVIDENCE
SUBMITTED DOES NOT EXPLAIN THE METHOD USED IN COMPUTING THE ORIGINAL BID
PRICE NOR DOES IT SET FORTH THE VARIOUS COST ELEMENTS USED IN ARRIVING
AT THE REQUESTED BID PRICE.
THERE IS NO DISPUTE THAT THE ACADEMY DID NOT DISCHARGE ITS FULL
RESPONSIBILITY CONCERNING POSSIBLE CORRECTION OF BROMLEY'S BID. AS
OUTLINED IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-406.3(E), THE
CONTRACTING OFFICER IS REQUIRED TO ADVISE THE BIDDER TO MAKE A WRITTEN
REQUEST INDICATING ITS DESIRE TO WITHDRAW OR MODIFY THE BID, WITH
REQUISITE SUPPORTING DOCUMENTATION. THE CONTRACTING OFFICER ADVISED
BROMLEY ONLY OF ONE OF THE TWO OPTIONS. WHILE THE ASPR CONCERNING
MISTAKES IN BIDS WERE ENACTED FOR THE PROTECTION OF BIDDERS, WE DO NOT
BELIEVE THE PROCEDURAL DEFICIENCY OF THE CONTRACTING OFFICER ENTITLES
BROMLEY TO ANY GREATER REMEDY THAN WOULD HAVE BEEN AVAILABLE TO IT HAD
IT RECEIVED TIMELY NOTICE OF ITS RIGHT TO HAVE CORRECTION OF ITS BID
CONSIDERED.
SEE CHRIS BERG, INC. V. UNITED STATES, 426 F.2D 314, 192 CT. CL. 176
(1970).
CONSEQUENTLY, THE STANDARD OF OUR REVIEW MUST BE THAT WHICH WOULD
HAVE APPLIED HAD THE REQUEST FOR CORRECTION BEEN RECEIVED BEFORE AWARD
HAD BEEN MADE. THAT IS, BROMLEY WOULD HAVE BEEN REQUIRED TO SUBMIT
SUFFICIENT EVIDENCE TO ESTABLISH CONCLUSIVELY THE NATURE OF THE MISTAKE,
HOW IT WAS MADE, AND THE EXACT AMOUNT OF THE INTENDED BID. ASPR
2-406.3(D). CORRECTION, IF ALLOWED, COULD NOT HAVE EXCEEDED THE AMOUNT
OF THE NEXT OTHERWISE ACCEPTABLE LOW BID.
IT IS IN LIGHT OF THE FOREGOING STANDARD THAT WE HAVE REVIEWED THE
WORKSHEETS AND EXPLANATION SUBMITTED BY BROMLEY. PRESUMABLY, THE SAME
EVIDENCE THAT IS PRESENTLY BEFORE OUR OFFICE FOR CONSIDERATION WOULD
HAVE BEEN SUBMITTED TO THE CONTRACTING OFFICER BEFORE AWARD.
BASED UPON THIS INFORMATION, WE DO NOT BELIEVE THAT THE EVIDENCE
WOULD HAVE WARRANTED BID CORRECTION. WE ARE CONVINCED THAT A MISTAKE
OCCURRED, AND THAT IT PROBABLY OCCURRED IN THE MANNER ALLEGED. HOWEVER,
THE EVIDENCE SUBMITTED DOES NOT ESTABLISH THE EXACT PROOF OF THE
INTENDED BID. BASED UPON BROMLEY'S WORKSHEETS, THE TOTAL OF ALL THE
COLUMNS OF SHEET #1 IS $310,330. A DEDUCTION OF $2,000 IS ALLEGED TO
HAVE BEEN OMITTED FROM THE BOTTOM OF COLUMN 4. HOWEVER, IN RECOMPUTING
THE TOTAL OF THE ESTIMATES IN COLUMN 4, WE BELIEVE THERE IS A
MATHEMATICAL ERROR. THE TOTAL INDICATED IS $22,000, WHICH WHEN
MULTIPLIED BY 2.25 TOTALS THE $49,500 INDICATED AT THE BOTTOM. HOWEVER,
THE CORRECT TOTAL OF COLUMN 4 IS $23,640, WHICH WOULD HAVE RESULTED IN A
TOTAL OF $53,190. FURTHER, WHILE BROMLEY ALLEGES ANOTHER $2,000 SHOULD
HAVE BEEN DEDUCTED, THERE IS NO EXPLANATION OF THE AMOUNT.
EVEN WORKING WITH BROMLEY'S FIGURE OF $298,530 IN ITS EXPLANATION
QUOTED ABOVE, THERE IS NO FURTHER EXPLANATION OTHER THAN "OUR USUAL BID"
TO INDICATE HOW $298,434 IS REACHED. THIS IS A REDUCTION OF
APPROXIMATELY .03 OF 1 PERCENT.
IN ITS FURTHER EXPLANATION, BROMLEY TOTALS ITS OMITTED COSTS OF 19
PERCENT AND 10 PERCENT TO ARRIVE AT A TOTAL OF 30 PERCENT FOR
COMPUTATION PURPOSES. USING THIS FIGURE, BROMLEY'S TOTAL WOULD HAVE
BEEN $387,964, BUT IS ALLEGED THAT IN ACCORDANCE WITH ITS "USUAL BID
PRACTICE," IT WOULD HAVE REDUCED ITS BID TO $387,434, OR A REDUCTION OF
.13 OF 1 PERCENT. FROM THE FOREGOING, WE ARE UNABLE TO DISCERN ANY BID
PATTERN THAT WOULD INDICATE CLEARLY THE INTENDED BID.
IN VIEW OF THE FACT THAT BROMLEY WAS APPRISED THAT IT COULD HAVE
WITHDRAWN ITS BID; THAT BROMLEY ACCEPTED THE CONTRACT AT THE ALLEGEDLY
MISTAKEN PRICE; AND THAT ITS WORKSHEETS WOULD NOT HAVE SUPPORTED
CORRECTION OF ITS BID HAD THEY BEEN SUBMITTED TIMELY FOR CONSIDERATION,
WE DO NOT BELIEVE THAT BROMLEY WAS PREJUDICED BY THE FAILURE OF THE
CONTRACTING OFFICER TO AFFORD IT AN OPPORTUNITY TO HAVE ITS BID
CORRECTED.
WE THEREFORE AGREE WITH THE ADMINISTRATIVE RECOMMENDATION THAT NO
RELIEF BE GRANTED.
B-180610, AUG 12, 1974
HEADNOTES-UNAVAILABLE
1. CONTRACTOR WHO FAILED TO ALLEGE ERROR UNTIL AFTER CONTRACT AWARD
MAY NEVERTHELESS HAVE QUANTUM MERUIT OR QUANTUM VALEBANT PAYMENT FOR
PERFORMANCE WHEN NO VALID CONTRACT WAS CONSUMMATED BECAUSE GOVERNMENT
SHOULD HAVE KNOWN OF PROBABILITY OF BID ERROR BUT NEGLECTED TO VERIFY
CONTRACTOR'S BID.
2. CONTRACTING OFFICER CHARGED WITH CONSTRUCTIVE NOTICE OF BID ERROR
WHERE THE TOTALITY OF THE CIRCUMSTANCES SHOULD HAVE RAISED THE
PRESUMPTION OF ERROR WHICH IN TURN REQUIRED BID VERIFICATION. IN
SITUATION WHERE GOVERNMENT ESTIMATE WAS 24 PERCENT HIGHER THAN THE LOW
BID, THE SECOND LOW BID WAS 44 PERCENT HIGHER THAN LOW BID, AND PREVIOUS
PROCUREMENT WAS 140 PERCENT HIGHER THAN LOW BID, NO VALID CONTRACT WAS
CONSUMMATED WHEN GOVERNMENT FAILED TO VERIFY THE LOW BID.
UBIQUE LTD.:
THIS DECISION INVOLVES A MISTAKE IN BID ALLEGED BY UBIQUE LTD. AFTER
AWARD OF A CONTRACT TO IT UNDER IFB NO. N00024-71-B-7543. THE
SOLICITATION, ISSUED BY THE NAVAL SHIP SYSTEMS COMMAND, REQUESTED BIDS
FOR TWO ITEMS. ITEM 1 CALLED FOR A PER UNIT BID FOR TEN VLF CONVERSION
KITS FOR ACOUSTIC DEVICES. ITEM 2 CALLED FOR A SIMILAR NUMBER AND PER
UNIT BID FOR REPAIR PARTS FOR THE ITEM 1 CONVERSION KITS.
BIDS WERE OPENED ON JUNE 15, 1971, AND THREE BIDS WERE RECEIVED AS
FOLLOWS:
(PER (PER
BIDDER ITEM 1 UNIT ITEM 2 UNIT) TOTAL PRIC
UBIQUE LTD. $5,790 $1,902 $ 76,9
OCEAN & ATOMOSPHERIC $8,004 $3,039 $110,4
SCIENCES, INC.
WIL-JO MFG. CO. $8,780 $2,485 $112,65
THE GOVERNMENT'S TOTAL PRICE ESTIMATE WAS $95,000.
ON AUGUST 11, 1971, THE NAVY AWARDED UBIQUE CONTRACT N00024-72-C-5110
FOR A TOTAL PRICE OF $76,920. IN A LETTER DATED SEPTEMBER 10, 1971,
UBIQUE ADVISED THE NAVY THAT ITS BID WAS ABOUT $28,000 LOWER THAN IT
SHOULD HAVE BEEN. THE LETTER ALLEGED THAT A MISTAKE WAS CAUSED BY A
FAULTY ESTIMATE OR SUBCONTRACTOR QUOTATION FOR A REGULATING VALVE
ASSEMBLY. LATER CORRESPONDENCE FROM UBIQUE INDICATED THAT THE DEATH OF
ITS ESTIMATOR MADE IMPOSSIBLE THE TASK OF FINDING THE SOURCE OF THE
FAULTY SUBCONTRACTOR QUOTATION.
UBIQUE HAS ASSERTED IN EFFECT THAT ITS BID WAS SO FAR OUT OF LINE
WITH OTHER BIDS THAT THE CONTRACTING OFFICER WAS ON CONSTRUCTIVE NOTICE
OF THE POSSIBILITY OF A MISTAKE AND THEREFORE WAS REQUIRED TO REQUEST
VERIFICATION OF THE BID. THE NAVY FEELS THAT THE CONTRACTING OFFICER
WAS NOT ON CONSTRUCTIVE OR ACTUAL NOTICE OF A MISTAKE AT THE TIME OF
AWARD AND THAT BID VERIFICATION WAS NOT NECESSARY. WE CANNOT AGREE WITH
THE NAVY.
AS A GENERAL RULE, WHEN A BID HAS BEEN ACCEPTED THE BIDDER IS BOUND
TO PERFORM AND MUST BEAR THE CONSEQUENCES OF ITS UNILATERAL MISTAKE.
SALIGMAN V. UNITED STATES, 56 F.SUPP. 505 (D.C.E.D. PA. 1944).
HOWEVER, OUR OFFICE HAS HELD THAT NO VALID AND BINDING CONTRACT IS
CONSUMMATED WHERE THE CONTRACTING OFFICER KNEW OR SHOULD HAVE KNOWN OF
THE PROBABILITY OF ERROR, BUT NEGLECTED TO TAKE PROPER STEPS TO VERIFY
THE BID. 37 COMP. GEN. 685 (1958) AND 17 COMP. GEN. 575 (1938). IN
DETERMINING WHETHER A CONTRACTING OFFICER HAS A DUTY TO VERIFY BID
PRICES WE HAVE STATED:
"*** THE TEST IS WHETHER UNDER THE FACTS AND CIRCUMSTANCES OF 'THE
PARTICULAR CASE THERE WERE ANY FACTORS WHICH REASONABLY SHOULD HAVE
RAISED THE PRESUMPTION OF ERROR IN THE MIND OF THE CONTRACTING OFFICER'
(WELCH, MISTAKES IN BID 18 FED. B. J. 75, 83) WITHOUT MAKING IT
NECESSARY FOR THE CONTRACTING OFFICER TO ASSUME THE BURDEN OF EXAMINING
EVERY BID FOR POSSIBLE ERROR BY THE BIDDER. ***" 49 COMP. GEN. 272, 274
(1969), QUOTING B-164845, JANUARY 27, 1969.
IN THE PRESENT CASE, THE GOVERNMENT ESTIMATE AND THE SECOND LOW BID
WERE 24 PERCENT AND 44 PERCENT HIGHER, RESPECTIVELY, THAN UBIQUE'S BID.
ADDITIONALLY, THE NAVY WAS AWARE THAT THE LAST CONTRACT FOR TWO
IDENTICAL CONVERSION KITS WAS AT A 140 PERCENT HIGHER PRICE THAN
UBIQUE'S BID IN THE PRESENT CASE. ALTHOUGH THE NAVY MAKES A STRONG
POINT OUT OF THE LESSER QUANTITY IN THE EARLIER PROCUREMENT, WE BELIEVE
THIS POINT IS DIMINISHED BY THE TOTALITY OF THE CIRCUMSTANCES, INCLUDING
THE WELL GROUPED OTHER BIDS, AND THE DIVERGENT PERCENTAGES BETWEEN
UBIQUE'S BID, THE GOVERNMENT ESTIMATE AND THE HIGHER BIDS.
UBIQUE'S EVIDENCE OF ERROR INCLUDES A BASIC PARTS LIST WHICH SHOWS
$90 AS THE ESTIMATE FOR A REGULATING VALVE ASSEMBLY WITH 20 SUCH
ASSEMBLIES REQUIRED FOR CONTRACT PERFORMANCE. THE CONTRACTOR HAS ALSO
FURNISHED EVIDENCE THAT QUOTATIONS WERE RECEIVED FOR THE ASSEMBLIES
RANGING FROM $1,375 TO $875, PLUS TOOLING, PER ASSEMBLY, IN ADDITION,
UBIQUE HAD FURNISHED THE FINAL PURCHASE ORDER WITH ITS SUBCONTRACTOR FOR
THE ASSEMBLIES AT A COST OF $875 PER UNIT PLUS $5,000 IN TOOLING COSTS.
WE BELIEVE THAT THE CONTRACTOR HAS SUBMITTED SUFFICIENT EVIDENCE IN THIS
CASE TO ESTABLISH THE FACT THAT THE BID INTENDED COULD NOT HAVE BEEN THE
BID SUBMITTED. ALTHOUGH EVIDENCE OF A MISTAKE HAS BEEN SHOWN, WE AGREE
THAT THE DEATH OF UBIQUE'S ESTIMATOR HAS CLOSED ALL POSSIBILITIES OF
DETERMINING THE EXACT INTENDED BID PRICE. ALTHOUGH THE CONTRACTOR HAS
SUBMITTED HIS AFTER AWARD COSTS FOR THE MISTAKE, SUCH EVIDENCE MAY NOT
BE USED TO DETERMINE THE INTENDED BID. 17 COMP. GEN. 575 (1938).
THEREFORE, WE THINK UBIQUE HAS PRESENTED EVIDENCE TO ESTABLISH THE
EXISTENCE OF A MISTAKE BUT NOT THE INTENDED BID PRICE. ADDITIONALLY, WE
BELIEVE THE CONTRACTING OFFICER WAS CONSTRUCTIVELY AWARE OF THE MISTAKE
BUT FAILED TO VERIFY UBIQUE'S BID. ACCORDINGLY, WE BELIEVE IT IS
EVIDENT THAT NO CONTRACT WAS EVER EFFECTED AT THE AWARD PRICE. CHRIS
BERG INC. V. UNITED STATES, 426 F.2D 314 (CT. CL. 1970) AND 37 COMP.
GEN. 706, 707 (1958). BECAUSE THE CONTRACT WORK HAS BEEN COMPLETED AND
RESCISSION IS NOT FEASIBLE WE BELIEVE UBIQUE SHOULD RECEIVE PAYMENT ON A
QUANTUM VALEBANT OR QUANTUM MERUIT BASIS, THAT IS, THE REASONABLE VALUE
OF THE SERVICES AND MATERIALS ACTUALLY FURNISHED, 53 COMP. GEN. 368
(1973) AND C.N. MONROE MFG. CO. V. UNITED STATES, 143 F.SUPP. 449 (E.D.
MICH 1956), NOT TO EXCEED THE CLAIMED AMOUNT.
B-181098, AUG 9, 1974
HEADNOTES-UNAVAILABLE
ENVIRONMENTAL PROTECTION AGENCY EMPLOYEE'S CLAIM FOR REIMBURSEMENT
FOR COST OF PUBLIC HEALTH SERVICE UNIFORM PAYMENT MAY BE ALLOWED AS
MISCELLANEOUS EXPENSE PURSUANT TO FEDERAL TRAVEL REGULATIONS.
PAYMENT OF UNIFORM EXPENSE:
THIS DECISION TO THE AUTHORIZED CERTIFYING OFFICER, MR. LARRY L.
PETERSEN, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (EPA) IS IN
RESPONSE TO HIS REQUEST OF APRIL 17, 1974, FOR AN ADVANCE DECISION AS TO
WHETHER OR NOT THE EPA APPROPRIATION ACT ALLOWS PAYMENT OF PUBLIC HEALTH
SERVICE (PHS) UNIFORM EXPENSE AS CLAIMED BY EMPLOYEE IN HIS VOUCHER
COVERING DUTY AT THE NATIONAL BOY SCOUT JAMBOREE.
THE RECORD SHOWS THAT THE EMPLOYEE WAS ASSIGNED BY HIS OFFICE TO BE
THE WATER SUPPLY REPRESENTATIVE ON THE STAFF OF BOY SCOUT JAMBOREE-WEST
HELD AT FARRAGUT STATE PARK, IDAHO. THE PERIOD OF ASSIGNMENT EXTENDED
FROM JULY 24 TO AUGUST 8, 1973. SINCE BOY SCOUT JAMBOREE DRESS CODES
REQUIRE THAT STAFF MEMBERS WEAR A BOY SCOUT OR A PHS UNIFORM AT ALL
TIMES, THE EMPLOYEE PURCHASED A PHS UNIFORM BECAUSE PRICES WERE
COMPARABLE AND HE DETERMINED THAT FUTURE USE COULD BE MADE OF THE PHS
UNIFORM IN EPA ACTIVITIES. HOWEVER, THE EMPLOYEE'S CLAIM FOR
REIMBURSEMENT FOR THE COST OF THE UNIFORM INCLUDED IN HIS TRAVEL VOUCHER
WAS DISALLOWED.
WHILE THE EPA'S FISCAL YEAR 1974 APPROPRIATION ACT (PUB. L. 93-135,
87 STAT. 482) PROVIDES FUNDS FOR UNIFORM EXPENSES AS AUTHORIZED BY 5
U.S.C. 5901 IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE DIRECTOR OF
THE OFFICE OF MANAGEMENT AND BUDGET, THIS AUTHORITY APPLIES IN THOSE
INSTANCES WHERE EMPLOYEES ARE REQUIRED TO WEAR UNIFROMS ON A REGULAR
BASIS. WE NOTE THAT THE EMPLOYEE INVOLVED HERE WORE THE UNIFORM TO
CARRY OUT A TEMPORARY DUTY ASSIGNMENT. THUS, THERE WOULD BE NO BASIS TO
REIMBURSE THE EMPLOYEE INVOLVED UNDER THE PROVISIONS OF THE FEDERAL
EMPLOYEES UNIFORM ALLOWANCE ACT, 5 U.S.C. 5901.
WE NOTE, HOWEVER, THAT PARAGRAPH 1-9.LD OF THE FEDERAL TRAVEL
REGULATIONS INCORPORATED IN THE FEDERAL PROPERTY MANAGEMENT REGULATIONS
(FPMR) 101-7 PROVIDES:
"MISCELLANEOUS EXPENDITURES NOT ENUMERATED HEREIN, WHEN NECESSARILY
INCURRED BY THE TRAVELER IN CONNECTION WITH THE TRANSACTION OF OFFICIAL
BUSINESS, SHALL BE ALLOWED WHEN APPROVED."
IF IT IS ADMINISTRATIVELY DETERMINED THAT PURCHASE OF THE (PHS)
UNIFORM BY THE EMPLOYEE WAS REQUIRED TO PERFORM OFFICIAL BUSINESS HIS
CLAIM MAY BE ALLOWED UNDER THE ABOVE-QUOTED PARAGRAPH OF THE FTR. OF
COURSE, IF THE EMPLOYEE IS REIMBURSED FOR THE COST OF THE UNIFORM TITLE
THERETO WOULD BE IN THE UNITED STATES AND THE UNIFORM WOULD NOT BE THE
PROPERTY OF THE EMPLOYEE. CF. 45 COMP. GEN. 215 (1965).
B-162852(1) AUG 8, 1974
HEADNOTES-UNAVAILABLE
ENLISTED MEMBER OF UNIFORMED SERVICES WHO, SUBSEQUENT TO RETIREMENT
UNDER 10 U.S.C. 3914, WHICH ENTITLED HIM TO A 10 PERCENT INCREASE IN
RETIRED PAY BASED ON AWARD OF DISTINGUISHED SERVICE CROSS, IS RECALLED
TO ACTIVE DUTY AND THEN RETURNED TO THE RETIRED LIST THEREBY BECOMING
ENTITLED TO RECOMPUTE HIS RETIRED PAY UNDER 10 U.S.C. 1402, MAY NOT HAVE
HIS RECOMPUTED RETIRED PAY FURTHER INCREASED BY 10 PERCENT FOR
EXTRAORDINARY HEROISM SINCE 10 U.S.C. 1402 PERMITS MEMBER TO ELECT THE
MOST FAVORABLE FORMULA UNDER SUBSECTION (A) OR (E), BUT MAKES NO
PROVISION WHEREBY MEMBER'S RECOMPUTED RETIRED PAY MAY BE FURTHER
INCREASED BY ACT OF HEROISM PERFORMED DURING PERIOD OF ACTIVE DUTY PRIOR
TO INITIAL RETIREMENT.
ENTITLEMENT TO INCREASED ERTIRED PAY FOR EXTRAORDINARY HEROISM -
SERGEANT MAJOR RICHARD L CHILDERS, SR., RETIRED:
THIS ACTION IS IN RESPONSE TO LETTER DATED OCTOBER 15, 1973 (FILE
REFERENCE FINCY-CB CHILDERS, RICHARD L., SR., SSN 000-00-6291
(RETIRED)), FROM MR. H.C. MCDANIEL, SPECIAL DISBURSING AGENT, UNITED
STATES ARMY SUPPORT AGENCY, INDIANAPOLIS, INDIANA, REQUESTING AN ADVANCE
DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE
AMOUNT OF $1,424.31, IN FAVOR OF SERGEANT MAJOR RICHARD L. CHILDERS,
SR., RETIRED, REPRESENTING INCREASED RETIRED PAY FOR PERIOD AUGUST 1,
1971, THROUGH SEPTEMBER 30, 1973, IN THE CIRCUMSTANCES DESCRIBED. THE
REQUEST WAS FORWARDED TO THIS OFFICE BY LETTER FROM THE OFFICE OF THE
COMPTROLLER OF THE ARMY, DATED NOVEMBER 26, 1973 (FILE REFERENCE
DACA-CSJ-E), AND ASSIGNED CONTROL NO. D0-A-1211, BY THE DEPARTMENT OF
DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.
THE SUBMISSION STATES THAT SERGEANT CHILDERS WAS RETIRED ON JANUARY
1, 1968, UNDER THE PROVISIONS OF 10 U.S.C. 3914 IN THE GRADE OF MASTER
SERGEANT (E8) WITH 21 YEARS, 0 MONTHS AND 17 DAYS OF SERVICE FOR BASIC
PAY PURPOSES AND HAD AN EQUAL PERIOD OF ACTIVE SERVICE, WITH HIS RETIRED
PAY COMPUTED UNDER THE PROVISIONS OF FORMULA C, OF 10 U.S.C. 3991.
UNDER FORMULA C HE WAS ELIGIBLE FOR A 10 PERCENT INCREASE IN RETIRED PAY
FOR EXTRAORDINARY HEROISM BY VIRTUE OF BEING AWARDED THE DISTINGUISHED
SERVICE CROSS PRIOR TO HIS INITIAL RETIREMENT.
THE SUBMISSION STATES FURTHER THAT THE MEMBER'S RETIRED PAY WAS
COMPUTED AT 52-1/2 PERCENT OF $527.10 (THE ACTIVE DUTY PAY RATE OF AN
E-8 WITH LESS THAN 22 YEARS OF SERVICE BASED ON THE OCTOBER 1, 1967 PAY
SCALE) OR $267.73, PLUS 10 PERCENT OR A TOTAL MONTHLY RETIRED PAY
ENTITLEMENT OF $304.40. UNDER THE COST-OF-LIVING INCREASE EFFECTIVE
APRIL 1, 1968, INCREASE EFFECTIVE APRIL 1, 1968, MEMBERS WHO HAD A
RETIREMENT DATE OF OCTOBER 1. 1967, THROUGH MARCH 31, 1968, WERE
ENTITLED TO A COST-OF-LIVING INCREASE OF 1.3 PERCENT. HOWEVER, THE
SAVED PAY PROVISIONS OF PUBLIC LAW 902207, APPROVED DECEMBER 16, 1967,
WAS APPLICABLE TO THE MEMBER AND HIS RETIRED PAY WAS FURTHER COMPUTED AS
OF APRIL 1 1968, UNDER THE JULY 1, 1966 ACTIVE DUTY PAY SCALE, PLUS A
3.7 PERCENT COST-OF-LIVING INCREASE WHICH BECAME EFFECTIVE DECEMBER 1,
1966, AND A 3.9 PERCENT INCREASE, EFFECTIVE APRIL 1. 1968. AS A RESULT
OF THE ABOVE, THE MEMBER'S RETIRED PAY WAS COMPUTED AT 52-1/2 PERCENT OF
$499.20 PLUS 10 PERCENT AND INCREASED BY 3.7 PERCENT AND 3.9 PERCENT,
FOR A TOTAL MONTHLY RETIRED PAY ENTITLEMENT OF $310.62.
THE SUBMISSION STATES THAT THE MEMBER WAS RECALLED TO ACTIVE DUTY ON
AUGUST 1, 1968, AND WAS RELIEVED FROM THAT DUTY ON JULY 31, 1971, IN THE
GRADE OF SERGEANT MAJOR (E-9), REVERTING TO THE RETIRED STATUS HELD BY
HIM ON AUGUST 1, 1971. THE ADDITIONAL THREE YEARS OF ACTIVE DUTY
CREDITED HIM WHEN ADDED TO HIS PRIOR ACTIVE DUTY THEN TOTALED 24 YEARS,
0 MONTHS AND 17 DAYS OF SERVICE FOR BASIC PAY PURPOSES AND AN EQUAL
PERIOD OF ACTIVE SERVICE.
UPON HIS REVERSION TO THE RETIRED LIST ON AUGUST 1, 1971 THE MEMBER'S
RETIRED PAY WAS RECOMPUTED UNDER THE PROVISIONS OF 10 U.S.C. 1402, USING
THE APRIL 15, 1970 PAY SCALE. AS A RESULT, HIS RETIRED PAY WAS
RECOMPUTED AT 60 PERCENT OF $823.50 (THE APPROPRIATE ACTIVE DUTY PAY OF
HIS GRADE AND YEARS OF SERVICE), INCREASED BY 2.5 PERCENT EFFECTIVE
AUGUST 1, 1970, AND 4.5 PERCENT EFFECTIVE JUNE 1, 1971, FOR A TOTAL
MONTHLY RETIRED PAY ENTITLEMENT OF $529.24. THIS AMOUNT WAS FURTHER
INCREASED BY A 4.8 PERCENT CONSUMER PRICE INDEX ADJUSTMENT EFFECTIVE
JUNE 1, 1972, AND 6.1 PERCENT ON JULY 1, 1973, FOR A MONTHLY RETIRED PAY
ENTITLEMENT OF $588.48 AS OF SEPTEMBER 30, 1973. THE SUBMISSION
INDICATES THAT THE MEMBER'S RETIRED PAY COMPUTED IN THIS MANNER DOES NOT
INCLUDE THE 10 PERCENT INCREASE FOR EXTRAORDINARY HEROISM, BUT IF IT
WERE TO BE INCLUDED WOULD FURTHER INCREASE HIS RETIRED PAY TO $647.33.
IN VIEW OF THE LACK OF A SPECIFIC PROVISION IN 10 U.S.C. 1402
AUTHORIZING SUCH AN INCREASE, DOUBT IS EXPRESSED IN THE SUBMISSION AS TO
WHETHER THE MEMBER MAY STILL HAVE HIS RECOMPUTED RETIRED PAY FURTHER
INCREASED BY THE ADDITIONAL 10 PERCENT.
THE RIGHT OF A MEMBER, WHO IS IN RECEIPT OF RETIRED PAY AND WHO IS
RECALLED TO ACTIVE DUTY AND SUBSEQUENTLY RELEASED FROM THAT DUTY, TO
RECOMPUTE HIS RETIRED PAY IS PROVIDED BY SECTION 1402 OF TITLE 10,
UNITED STATES CODE.
THAT SECTION--WHICH WAS DERIVED FROM SECTIONS 402(D) AND 516 OF THE
CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63
STAT. 819, 832--PROVIDES FOR THE RECOMPUTATION OF RETIRED PAY TO REFLECT
GENERALLY, POST-RETIREMENT PERIODS OF ACTIVE DUTY, GRADE ADVANCEMENT,
AND SUBJECT TO THE LIMITATIONS IMPOSED BY THE VARIOUS FOOTNOTES TO THE
SUBSECTIONS, INCREASES IN THE MONTHLY BASIC PAY RATES AUTHORIZED DURING
THE LATTER PERIOD, THEREBY PERMITTING THE RETIRED MEMBER'S RETIRED PAY
TO BE INCREASED ACCORDINGLY.
SECTION 1402 OF TITLE 10, UNITED STATES CODE, AS IT RELATES TO THIS
CASE, PROVIDES IN SUBSECTION (A) THAT A MEMBER WHO HAS BEEN RETIRED AND
WHO THEREAFTER SERVES ON ACTIVE DUTY, OTHER THAN FOR TRAINING, IS
ENTITLED UPON RELEASE FROM THAT DUTY, TO RECOMPUTE HIS RETIRED PAY BY
TAKING THE MONTHLY BASIC PAY OF THE GRADE IN WHICH HE WOULD BE ELIGIBLE
TO RETIRE IF HE WERE RETIRING UPON THAT RELEASE FROM ACTIVE DUTY,
MULTIPLIED BY 2-1/2 PERCENT OF THE SUM OF THE YEARS OF SERVICE
CREDITABLE FOR THE PURPOSE OF COMPUTING RETIRED PAY AND THOSE
POST-RETIREMENT YEARS OF ACTIVE SERVICE. SUBSECTION (E) OF THE SAME
SECTION PROVIDES THAT:
"(E) NOTWITHSTANDING SUBSECTION (A), A MEMBER COVERED BY THAT
SUBSECTION MAY ELECT, UPON HIS RELEASE FROM ACTIVE DUTY, TO HAVE HIS
RETIRED PAY OR RETAINER PAY--
"(1) COMPUTED ACCORDING TO THE FORMULA SET FORTH IN SUBSECTION (A)
BUT USING THE RATE OF BASIC PAY UNDER WHICH HIS RETIRED PAY OR RETAINER
PAY WAS COMPUTED WHEN HE ENTERED ON ACTIVE DUTY; AND
"(2) INCREASED BY ANY APPLICABLE ADJUSTMENTS IN THAT PAY UNDER
SECTION 1401A OF THIS TITLE AFTER HE INITALLY BECAME ENTITLED TO THAT
PAY."
WHILE UNDER THE ABOVE-CITED PROVISIONS, A MEMBER WHO, WAS INITIALLY
RETIRED FOR LENGTH OF SERVICE AND WHO RESUMES THAT RETIREMENT STATUS
UPON RELEASE FROM A POST-RETIREMENT PERIOD OF ACTIVE DUTY, IS GIVEN THE
OPTION TO RECOMPUTE THE AMOUNT OF HIS RETIRED PAY UNDER THE FORMULA OF
10 U.S.C. 1402 MOST FAVORABLE TO HIM, NEITHER OF THE APPLICABLE
RECOMPUTATION FORMULAS CONTAINED THERIN PROVIDE FOR A 10 PERCENT
INCREASE IN SUCH RETIRED PAY FOR EXTRAORDINARY HEROISM.
WE RECOGNIZE THE APPARENT INEQUITY INVOLVED IN A SITUATION SUCH AS
THIS, AS COMPARED WITH A SITUATION INVOLVING A MEMBER OF THE SAME GRADE
WHO INITIALLY RETIRES AT THE SAME TIME AND WHO PERFORMED A SIMILAR ACT
OF EXTRAORDINARY HEROISM BUT REMAINED ON CONTINUOUS ACTIVE DUTY AND
COMPLETES THE SAME NUMBER OF YEARS OF SERVICE FOR RETIRED PAY PURPOSES.
HOWEVER, IN THE ABSENCE OF A PROVISION IN SECTION 1402 AUTHORIZING THE
10 PERCENT INCREASE IN RETIRED PAY IN A CASE SUCH AS THIS, IT IS OUR
VIEW THAT THERE IS NO AUTHORITY FOR FURTHER INCREASING SERGEANT
CHILDER'S RECOMPUTED RETIRED APY BY 10 PERCENT FOR EXTRAORDINARY
HEROISM, FOR ANY PERIOD SUBSEQUENT TO AUGUST 1, 1971, WHEN RE REVERTED
TO THE RETIRED LIST. COMPARE 52 COMP. GEN. 599 (1973).
ACCORDINGLY, PAYMENT ON THE VOUCHER ACCOMPANYING THE SUBMISSION IS
NOT AUTHORIZED AND IT WILL BE RETAINED HERE.
B-162852 (2), AUG 8, 1974
HEADNOTES-UNAVAILABLE
PRECIS - UNAVAILABLE
SECRETARY OF DEFENSE:
DURING OUR CONSIDERATION OF THE ISSUES INVOLVED IN OUR DECISION
B-162852, OF TODAY'S DATE, COPY ENCLOSED, CERTAIN INEQUITIES HAVE BECOME
APPARENT REGARDING THE RETIRED PAY RECOMPUTATION PROVISIONS OF U.S.C.
1402.
THE REPORTED FACTS IN THAT CASE INVOLVE AN ENLISTED MEMBER OF THE
ARMY WHO WAS AWARDED THE DISTINGUISHED SERVICE CROSS PRIOR TO HIS
INITIAL RETIREMENT UNDER 10 U.S.C. 3914, THEREBY MAKING HIM ELIGIBLE TO
HAVE HIS RETIRED PAY INCREASED BY 10 PERCENT FOR EXTRAORDINARY HEROISM
UNDER THE PROVISIONS OF FORMULA C OF 10 U.S.C. 3991. HE WAS THEN
RECALLED TO AN EXTENDED PERIOD OF ACTIVE DUTY AND EVENTUALLY RETURNED TO
THE RETIRED LIST, THEREBY BECOMING ENTITLED TO RECOMPUTE HIS RETIRED PAY
UNDER 10 U.S.C. 1402(A) AND (E).
WE HELD THEREIN THAT SUCH A MEMBER MAY NOT HAVE HIS RECOMPUTED
RETIRED PAY INCREASED BY 10 PERCENT FOR THAT ACT OF EXTRAORDINARY
HEROISM SINCE NEITHER OF THE APPLICABLE RECOMPUTATION FORMULAS DISCUSSED
PROVIDE FOR SUCH AN INCREASE. YET, A MEMBER OF THE SAME GRADE INITIALLY
RETIRING AT THE SAME TIME UNDER 10 U.S.C. 3914, AFTER COMPLETING THE
SAME NUMBER OF YEARS OF SERVICE FOR RETIRED PAY PURPOSES AND PERFORMING
A SIMILAR ACT OF HEROISM, WOULD BE ENTITLED TO HAVE HIS RETIRED PAY
FURTHER INCREASED BY 10 PERCENT FOR EXTRAORDINARY HEROISM UNDER THE
PROVISIONS OF FORMULA C, 10 U.S.C. 3991.
A SIMILAR INEQUITY BECAME APPARENT IN OUR DECISION, 52 COMP. GEN.
599 (1973), COPY ENCLOSED, INVOLVING A POST-RETIREMENT ACT OF
EXTRAORDINARY HEROISM. THE REPORTED FACTS IN THAT CASE INVOLVE AN
ENLISTED MEMBER OF THE ARMY WHO, SUBSEQUENT TO RETIREMENT UNDER 10
U.S.C. 3914, IS RECALLED TO ACTIVE DUTY AND DURING SUCH LATTER ACTIVE
DUTY PERIOD WAS AWARDED THE SOLDIER'S MEDAL. ORDINARILY, THIS WOULD
PERMIT A 10 PERCENT INCREASE IN RETIRED PAY ON AN INITIAL RETIREMENT,
BUT BECAUSE THE MEMBER, UPON RETURN TO THE RETIRED LIST, RECOMPUTED HIS
RETIRED PAY UNDER 10 U.S.C. 1402(B) AND (D), WE CONCLUDED THAT HE WAS
NOT ENTITLED TO HAVE HIS RECOMPUTED RETIRED PAY INCREASED BY THE 10
PERCENT FACTOR. THAT DECISION WAS ALSO BASED ON THE FACT THAT ALTHOUGH
FORMULA C, 10 U.S.C. 3991, PROVIDES FOR A 10 PERCENT INCREASE IN A
MEMBER'S RETIRED PAY FOR THE PERFORMANCE OF AN ACT OF EXTRAORDINARY
HEROISM PRIOR TO INITIAL RETIREMENT, NOWHERE IN THE RETIRED PAY
RECOMPUTATION FORMULAS AUTHORIZED BY 10 U.S.C. 1402 IS THERE ANY
PROVISION WHEREBY A MEMBER'S RECOMPUTED RETIRED PAY MAY BE INCREASED FOR
SIMILAR ACT PERFORMED DURING A POST-RETIREMENT PERIOD OF ACTIVE SERVICE.
IN ENACTING THESE PROVISIONS CONGRESS MAY NOT HAVE INTENDED TO
DEPRIVE AN ENLISTED MEMBER OF A 10 PERCENT INCREASE IN RETIRED PAY FOR
EXTRAORDINARY HEROISM WHEN HE BECOMES ENTITLED TO RECOMPUTE HIS RETIRED
OR RETAINER PAY UNDER 10 U.S.C. 1402, HOWEVER, BECAUSE OF THE SPECIFIC
LANGUAGE CONTAINED IN 10 U.S.C. 1402, IT WAS NECESSARY FOR THIS OFFICE
TO TAKE THE POSITION THAT IN THE ABSENCE OF A SPECIFIC PROVISION WHICH
WOULD PERMIT SUCH AN INCREASE IN RECOMPUTED RETIRED PAY FOR AN ACT OF
EITHER PRE-RETIREMENT OR POST-RETIREMENT EXTRAORDINARY HEROISM, SUCH AS
AN INCREASE IS NOT AUTHORIZED.
IN THIS REGARD, WE ARE AWARE THAT A BILL (H.R. 12505), WAS INTRODUCED
IN THE HOUSE OF REPRESENTATIVES ON FEBRUARY 4, 1974, TO MODERNIZE
PORTIONS OF THE RETIREMENT STRUCTURE FOR MEMBERS OF THE UNIFORMED
SERVICES, BUT THAT BILL DOES NOT APPEAR TO REMEDY THESE APPARENT
INEQUITIES. IN THE CIRCUMSTANCES, YOU MAY WISH TO SUBMIT ADDITIONAL
AMENDMENTS TO SECTION 1402 OF TITLE 10, UNITED STATES CODE, TO ASSURE
THAT AN ENLISTED MEMBER OF THE ARMED SERVICES WHO BECOMES ENTITLED TO
RETIRED OR RETAINER PAY AND WHO THEREAFTER SERVES ON ACTIVE DUTY,
THEREBY BECOMING ENTITLED TO COMPUTE HIS RETIRED OR RETAINER PAY UNDER
SECTION 1402 TO REFLECT THE LATER PERIOD OF ACTIVE DUTY, MAY HAVE THAT
RECOMPUTED RETIRED PAY INCREASED BY 10 PERCENT FOR AN ACT OF
EXTRAORDINARY HEROISM PERFORMED IN EITHER THE PRE-RETIREMENT OR
POST-RETIREMENT PERIOD.
B-170589, AUG 8, 1974
HEADNOTES-UNAVAILABLE
EMPLOYEES ASSIGNED UNDER INTERGOVERNMENTAL PERSONNEL ACT BY TRAVEL
ORDERS ISSUED PRIOR TO DATE OF OUR HOLDING IN 53 COMP. GEN. 81 (1973),
THAT BOTH RELOCATION AND TEMPORARY-DUTY-TYPE EXPENSES MAY NOT BE PAID
UNDER 5 U.S.C. 3375(A), MAY NEVERTHELESS RETAIN BOTH PER DIEM AND
TEMPORARY QUARTERS SUBSISTENCE EXPENSES. OUR DECISION IN 53 COMP. GEN.
81 HAD THE EFFECT OF CLARIFYING PURPOSE OF SUBSECTION 3375(A) IN MANNER
INCONSISTENT WITH CSC REGULATIONS AND IS TANTAMOUNT TO A CHANGE IN
CONSTRUCTION OF THE LAW WHICH NEED NOT BE GIVEN RETROACTIVE EFFECT.
DONALD B. KORNREICH - PROSPECTIVE APPLICATION OF 53 COMP. GEN. 81
(1973)
BY LETTER DATED OCTOBER 17, 1973, MR. DONALD B. KORNREICH REQUESTED
AN ADVANCE DECISION FROM THE GENERAL ACCOUNTING OFFICE AS TO HIS
OBLIGATION TO REPAY THE SUM OF $217 WHICH HE RECEIVED AS A PER DIEM
ALLOWANCE IN CONNECTION WITH HIS ASSIGNMENT TO THE UNIVERSITY OF HAWAII.
THE AUTHORITY TO RENDER DECISIONS IS LIMITED TO MATTERS PRESENTED BY
HEADS OF DEPARTMENTS AND AGENCIES, DISBURSING OFFICERS, AND TO CLAIMANTS
WHO HAVE FILED MONETARY CLAIMS WITH OUR OFFICE. SEE 31 U.S.C. 74 AND
82D. HOWEVER, SINCE WE UNDERSTAND THERE ARE NUMEROUS OTHER EMPLOYEES
SIMILARLY SITUATED WHO HAVE BEEN OVERPAID AND BECAUSE OF THE URGENCY OF
THE MATTER WE WILL RENDER A DECISION AS IF THE REQUEST HAD ORIGINATED
FROM THE HEAD OF THE AGENCY, WITH A COPY TO MR. KORNREICH.
MR. KORNREICH, A NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA)
EMPLOYEE, WAS ASSIGNED TO THE UNIVERSITY OF HAWAII FOR A PERIOD OF 1
YEAR UNDER THE INTERGOVERNMENTAL PERSONNEL ACT (IPA) OF 1970, APPROVED
JANUARY 5, 1971, PUBLIC LAW 91-648, 84 STAT. 1909, 5 U.S.C. 3375. BY
TRAVEL AUTHORIZATION DATED JUNE 19, 1973, HE WAS AUTHORIZED TO TRAVEL
FROM HIS OFFICIAL DUTY STATION AT MOFFETT FIELD, CALIFORNIA, TO THE
UNIVERSITY OF HAWAII AND, AMONG OTHER ALLOWANCES, WAS AUTHORIZED PER
DIEM AND SUBSISTENCE EXPENSES AS FOLLOWS:
"5. TEMPORARY QUARTERS AUTHORIZED FOR EMPLOYEE AND FAMILY (30 DAYS
MAXIMUM); EMPLOYEE TO BE PAID PER DIEM FOR BALANCE OF PERIOD WITHIN THE
30 DAYS IF TEMPORARY QUARTERS ARE VACATED FOR PERMANENT QUARTERS."
APPARENTLY MR. KORNREICH WAS PAID TEMPORARY QUARTERS SUBSISTENCE
EXPENSES FOR THE 23 DAYS DURING WHICH HIS FAMILY OCCUPIED TEMPORARY
QUARTERS AND WAS PAID $217 AS A PER DIEM ALLOWANCE FOR THE REMAINING 7
DAYS (AUGUST 2 THROUGH AUGUST 8, 1973) OF THE 30-DAY PERIOD DURING WHICH
THE FAMILY OCCUPIED PERMANENT QUARTERS AFTER HAVING MOVED FROM TEMPORARY
LODGINGS. THE AGENCY HAS ISSUED A BILL FOR COLLECTION IN THE AMOUNT OF
$217 BASED ON THE HOLDING BY THIS OFFICE IN 53 COMP. GEN. 81 (1973).
IN THE ABOVE-REFERENCED DECISION WE HELD THAT UNDER THE AUTHORITY OF
5 U.S.C. 3375, FOR PAYMENT OF TRAVEL EXPENSES IN CONNECTION WITH
ASSIGNMENTS UNDER THE IPA, AN AGENCY COULD NOT PAY BOTH THE BENEFITS
ASSOCIATED WITH A PERMANENT CHANGE OF STATION AND THE BENEFITS NORMALLY
ASSOCIATED WITH A TEMPORARY DUTY ASSIGNMENT. IN ARRIVING AT THAT
DECISION WE RECOGNIZED THAT THE STATUTORY LANGUAGE IS UNCLEAR AS TO
WHETHER AN EMPLOYEE MAY BE REIMBURSED FOR ALL OR ONLY CERTAIN OF THE
ENUMERATED EXPENSES. THE PERTINENT LANGUAGE OF SECTION 3375, TITLE 5,
UNITED STATES CODE, IS AS FOLLOWS:
"SEC. 3375. TRAVEL EXPENSES
"(A) APPROPRIATIONS OF AN EXECUTIVE AGENCY ARE AVAILABLE TO PAY, OR
REIMBURSE, A FEDERAL OR STATE OR LOCAL GOVERNMENT EMPLOYEE IN ACCORDANCE
WITH -
"(1) SUBCHAPTER I OF CHAPTER 57 OF THIS TITLE, FOR THE EXPENSES OF -
"(A) TRAVEL, INCLUDING A PER DIEM ALLOWANCE, TO AND FROM THE
ASSIGNMENT LOCATION;
"(B) A PER DIEM ALLOWANCE AT THE ASSIGNMENT LOCATION DURING THE
PERIOD OF THE ASSIGNMENT; AND
"(C) TRAVEL, INCLUDING A PER DIEM ALLOWANCE, WHILE TRAVELING ON
OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY DURING THE
ASSIGNMENT WHEN THE HEAD OF THE EXECUTIVE AGENCY CONSIDERS THE TRAVEL IN
THE INTEREST OF THE UNITED STATES:
"(2) SECTION 5724 OF THIS TITLE, FOR THE EXPENSES OF TRANSPORTATION
OF HIS IMMEDIATE FAMILY AND OF HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS
TO AND FROM THE ASSIGNMENT LOCATION;
"(3) SECTION 5724A(A)(1) OF THIS TITLE, FOR THE EXPENSES OF PER DIEM
ALLOWANCES FOR THE IMMEDIATE FAMILY OF THE EMPLOYEE TO AND FROM THE
ASSIGNMENT LOCATION;
"(4) SECTION 5724A(A)(3) OF THIS TITLE, FOR SUBSISTENCE EXPENSES OF
THE EMPLOYEE AND HIS IMMEDIATE FAMILY WHILE OCCUPYING TEMPORARY QUARTERS
AT THE ASSIGNMENT LOCATION AND ON RETURN TO HIS FORMER POST OF DUTY;
AND
"(5) SECTION 5726(C) OF THIS TITLE, FOR THE EXPENSES OF NONTEMPORARY
STORAGE OF HOUSEHOLD GOODS AND PERSONAL EFFECTS IN CONNECTION WITH
ASSIGNMENT AT AN ISOLATED LOCATION."
THE LANGUAGE OF THE IMPLEMENTING INSTRUCTIONS ISSUED BY THE CIVIL
SERVICE COMMISSION, CONTAINED IN SUBCHAPTER 1-7 OF CHAPTER 334 OF THE
FEDERAL PERSONNEL MANUAL, IN EFFECT AT THE DATE OF OUR DECISION AND
PRESENTLY, IS EQUALLY UNCLEAR IN THIS REGARD.
THUS, AT THE TIME OF MR. KORNREICH'S ASSIGNMENT TO THE UNIVERSITY OF
HAWAII, PRIOR TO OUR DECISION, THE ACTION OF NASA IN AUTHORIZING BOTH
PER DIEM AND TEMPORARY QUARTERS SUBSISTENCE EXPENSES WAS NOT AN
UNREASONABLE INTERPRETATION OF THE APPLICABLE STATUTORY AND REGULATORY
AUTHORITY. WHERE, AS HERE, A DECISION OF THIS OFFICE HAS THE EFFECT OF
CLARIFYING THE PURPOSE OF A STATUTE IN A MANNER THAT IS INCONSISTENT
WITH A NOT UNREASONABLE INTERPRETATION GIVEN THAT STATUTE BY THE AGENCY
RESPONSIBLE FOR ITS IMPLEMENTATION, THAT DECISION IS TANTAMOUNT TO A
CHANGE IN CONSTRUCTION OF THE LAW AND NEED NOT BE GIVEN RETROACTIVE
EFFECT. 24 COMP. GEN. 688 (1945); 36 ID. 84 (1956); 52 ID. 99
(1972); B-159950, DECEMBER 21, 1967. FOR THIS REASON WE DO NOT REGARD
MR. KORNREICH OR ANY EMPLOYEE SIMILARLY SITUATED TO BE INDEBTED TO THE
UNITED STATES FOR AMOUNTS OF PER DIEM RECEIVED PURSUANT TO TRAVEL ORDERS
ISSUED PRIOR TO THE AUGUST 6, 1973 DATE OF OUR DECISION. THE BILL FOR
COLLECTION ISSUED AGAINST MR. KORNREICH MAY THEREFORE BE CANCELLED.
B-171969, AUG 8, 1974
HEADNOTES-UNAVAILABLE
1. INTERNAL REVENUE SERVICE (IRS) EMPLOYEE ASSIGNED AS IRS
REPRESENTATIVE TO BROOKLYN STRIKE FORCE IN BROOKLY, NEW YORK, CLAIMS
REIMBURSEMENT FOR TRAVEL PERFORMED PURSUANT TO REQUEST BY STRIKE FORCE
HEAD, A DEPARTMENT OF JUSTICE EMPLOYEE. EMPLOYEE ALLEGES THAT HIS IRS
SUPERVISOR IN WASHINGTON, D.C. APPROVED TRAVEL WHICH SUPERVISOR DENIES.
CLAIM IS DENIED SINCE WHEN THERE IS DISPUTE AS TO FACTS BETWEEN
CLAIMANTS AND GOVERNMENT AGENCY REPRESENTATIVES, GAO WILL ACCEPT
STATEMENTS OF FACTS FURNISHED BY THE AGENCY, ABSENT A PREPONDERANCE OF
CONTRARY EVIDENCE, AND CLAIMANT HAS NOT SUBMITTED EVIDENCE SUFFICIENT TO
SHOW IRS DETERMINATION THAT TRAVEL WAS UNAUTHORIZED IS INCORRECT.
2. ALTHOUGH CLAIMANT, AN IRS STRIKE FORCE REPRESENTATIVE, CONTENDS
THAT THE HEAD OF BROOKLYN STRIKE FORCE, A JUSTICE DEPARTMENT EMPLOYEE,
HAD AUTHORITY TO AUTHORIZE HIS TRAVEL SINCE STRIKE FORCE HEAD WAS HIS
SUPERVISOR, CLAIM FOR TRAVEL PERFORMED PURUSANT TO REQUEST BY JUSTICE
EMPLOYEE IS DISALLOWED, SINCE UNDER SECTION 1.5, STANDARDIZED GOVERNMENT
TRAVEL REGULATIONS, TRAVEL MAY BE AUTHORIZED ONLY BY HEAD OF EMPLOYEE'S
OWN AGENCY, OR ONE DELEGATED SUCH AUTHORITY BY AGENCY HEAD, AND THERE IS
NOTHING IN RECORD INDICATING DIRECTOR, IRS, HAD DELEGATED TRAVEL
APPROVAL AUTHORITY TO JUSTICE DEPARTMENT STRIKE FORCE HEAD, OR THAT IRS
ITSELF AUTHORIZED TRAVEL.
CLAIM FOR REIMBURSEMENT OF TRAVEL EXPENSES WHERE TRAVEL AUTHORIZATION
IS CONTESTED:
THIS MATTER INVOLVES A REQUEST FOR AN ADVANCE DECISION AS TO WHETHER
MR. FRED E. KRYSA, A FORMER EMPLOYEE OF THE DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE (IRS), IS ENTITLED TO REIMBURSEMENT OF TRAVEL
EXPENSES THAT HE INCURRED IN CONNECTION WITH A TRIP HE MADE FROM
BROOKLYN, NEW YORK, TO LOS ANGELES, CALIFORNIA AND RETURN DURING
DECEMBER 1 THROUGH 5, 1971.
THE RECORD INDICATES THAT MR. KRYSA WAS EMPLOYED BY THE INTELLIGENCE
DIVISION OF THE INTERNAL REVENUE SERVICE BETWEEN APRIL 1967 AND MARCH
1972 AS A STRIKE FORCE REPRESENTATIVE. HE WAS ASSIGNED TO THE
OPERATIONS BRANCH OF THE INTELLIGENCE DIVISION, NATIONAL OFFICE,
INTERNAL REVENUE SERVICE, AS THE IRS REPRESENATIVE TO THE BROOKLYN
STRIKE FORCE, AN ELEMENT OF THE CRIMINAL DIVISION OF THE DEPARTMENT OF
JUSTICE, LOCATED IN BROOKLYN, NEW YORK, WHICH WAS RESPONSIBLE FOR
COORDINATING ENFORCEMENT ACTIVITIES AGAINST ORGANIZED CRIME IN THAT AREA
BY ONE OR MORE OF THE VARIOUS FEDERAL INVESTIGATIVE AGENCIES, SUCH AS
THE IRS INTELLIGENCE DIVISION.
MR. KRYSA, AS THE IRS REPRESENTATIVE TO THE BROOKLYN STRIKE FORCE,
SERVED IN A LIAISON CAPACITY BETWEEN THE STRIKE FORCE ATTORNEY IN
CHARGE, MR. DENIS E. DILLON (A JUSTICE DEPARTMENT EMPLOYEE), AND THE
BROOKLYN DISTRICT INTELLIGENCE DIVISION, AN ELEMENT OF THE IRS. MR.
KRYSA'S IMMEDIATE SUPERVISOR IN THE IRS DURING THE PERIOD IN QUESTION
WAS MR. JOSEPH PAGANI, WHO AT THAT TIME WAS A STRIKE FORCE COORDINATOR
IN THE OPERATIONS BRANCH, NATIONAL OFFICE, IRS, WASHINGTON, D.C.
IN EARLY DECEMBER 1971, A MEETING WAS SCHEDULED IN LOS ANGELES,
CALIFORNIA, BETWEEN MEMBERS OF THE LOS ANGELES AND BROOKLYN STRIKE
FORCES FOR THE PURPOSE OF COORDINATING THE INVESTIGATIVE EFFORTS OF BOTH
ORGANIZATIONS IN CERTAIN OPERATIONS. IT IS UNDISPUTED THAT MR. DILLON,
THE JUSTICE DEPARTMENT ATTORNEY IN CHARGE OF THE BROOKLYN STRIKE FORCE,
DESIRED MR. KRYSA TO ATTEND THE LOS ANGELES MEETING. IT IS ALSO
UNDISPUTED THAT ON OR ABOUT NOVEMBER 30, 1971, MR. KRYSA CALLED HIS
IMMEDIATE IRS SUPERVISOR, MR. PAGANI, AND REQUESTED PERMISSION TO ATTEND
THE LOS ANGELES MEETING. ON THE OTHER HAND THERE IS DISAGREEMENT
CONCERNING THE RESPONSE MR. PAGANI MADE TO THIS REQUEST. MR. KRYSA
MAINTAINS THAT MR. PAGANI GAVE HIM PERMISSION TO TRAVEL WHILE MR.
PAGANI STATES THAT PERMISSION WAS WITHHELD PENDING RECEIPT OF ADDITIONAL
JUSTIFICATION WHICH MR. KRYSA NEVER SUPPLIED. BOTH MR. PAGANI AND MR.
KRYSA HAVE PRODUCED WITNESSES THAT SUPPORT THEIR INDERSTANDING OF WHAT
OCCURRED DURING THIS CRITICAL TELEPHONE CONVERSATION. IN ADDITION, MR.
KRYSA, THROUGH HIS ATTORNEY, CONTENDS THAT APPROVAL OF MR. PAGANI WAS
NOT ESSENTIAL TO AUTHORIZE HIS TRAVEL BECAUSE MR. DILLON WAS ALSO HIS
SUPERVISOR AND HAD THE REQUISITE AUTHORITY TO APPROVE TRAVEL, WHICH HE
DULY EXERCISED IN THIS INSTANCE.
THE REGULATION GOVERNING OFFICIALS AUTHORIZED TO ADMINISTRATIVELY
APPROVE TRAVEL REQUESTS DURING THE PERIOD IN QUESTION WAS CONTAINED IN
SECTION 1.5, OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-7, REVISED,
AUGUST 17, 1971, SUBJECT "STANDARDIZED GOVERNMENT TRAVEL REGULATIONS,"
WHICH PROVIDES:
"1.5 AUTHORITY FOR TRAVEL. EXCEPT AS OTHERWISE PROVIDED BY LAW ALL
TRAVEL WILL BE EITHER AUTHORIZED OR APPROVED BY THE HEAD OF THE AGENCY
OR BY AN OFFICIAL TO WHOM SUCH AUTHORITY HAS BEEN DELEGATED. ORDINARILY
AN AUTHORIZATION WILL BE ISSUED PRIOR TO THE INCURRENCE OF THE EXPENSES
WHICH SPECIFIES THE TRAVEL TO BE PERFORMED AS DEFINITELY AS POSSIBLE IN
THE CIRCUMSTANCES."
UNDER PROVISIONS OF THE ABOVE QUOTED REGULATION ONLY THE HEAD OF MR.
KRYSA'S AGENCY, THE DIRECTOR OF THE IRS, OR PERSONS SPECIFICALLY TO WHOM
HE DELEGATED SUCH AUTHORITY HAD THE POWER TO AUTHORIZE MR. KRYSA TO
TRAVEL. INFORMATION SUPPLIED BY THE IRS INDICATES THAT AUTHORITY TO
APPROVE TRAVEL HAD BEEN DELEGATED BY THE DIRECTOR TO MR. PAGANI, BUT HAD
NEVER BEEN DELEGATED TO MR. DILLON. HENCE, MR. DILLON WAS APPARENTLY
WITHOUT AUTHORITY TO APPROVE MR. KRYSA'S TRAVEL ON THE OCCASION AT
ISSUE.
THIS CASE, THERFORE, INVOLVES A DISPUTED QUESTION OF FACT BETWEEN MR.
KRYSA AND HIS FORMER AGENCY, THE IRS, AS TO WHETHER MR. PAGANI, HIS
IMMEDIATE SUPERVISOR, AUTHORIZED THE TRAVEL AT ISSUE. WHEN DISPUTED
QUESTIONS OF FACT ARISE BETWEEN A CLAIMANT AND THE GOVERNMENT AGENCY
REPRESENTATIVE, IT HAS LONG BEEN THE PRACTICE OF OUR OFFICE TO ACCEPT
THE STATEMENTS OF FACTS FURNISHED BY THE AGENCY IN THE ABSENCE OF A
PREPONDERANCE OF EVIDENCE TO THE CONTRARY. B-176477, AUGUST 27, 1973,
AND B-148058, OCTOBER 10, 1962. IN THE INSTANT CASE WE ARE OBLIGED TO
ACCEPT THE IRS DETERMINATION THAT MR. KRYSA'S TRIP TO LOS ANGELES,
CALIFORNIA, IN EARLY DECEMBER 1971, WAS NEVER AUTHORIZED SINCE HE HAS
NOT SUPPLIED SUFFICIENT EVIDENCE TO SHOW THAT THE DETERMINATION WAS
INCORRECT. THEREFORE, THERE IS NO BASIS ON THE PRESENT RECORD FOR THE
REIMBURSEMENT OF MR. KRYSA'S TRAVEL EXPENSES.
ACCORDINGLY, MR. KRYSA'S CLAIM IS DISALLOWED.
R.F. KELLER
DEPUTY COMPTROLLER GENERAL OF THE UNITED STATES
B-173425, AUG 8, 1974
HEADNOTES-UNAVAILABLE
1. WHERE ARMY'S BILLINGS FOR PERIOD 1955-1960 FOR OVERTIME FOR CIVIL
SERVICE PERSONNEL USED ON STEVEDORING CONTRACT WERE PAID WITHOUT
OBJECTION AND SOME NINE YEARS THEREAFTER CLAIM IS PRESENTED TO AGENCY
ASSERTING THAT BILLINGS SHOULD BE RECOMPUTED AND OVERPAYMENTS REFUNDED
BASED ON APPEALS BOARD DECISION ISSUED IN 1960, SUCH CLAIM IS DENIED
SINCE EVIDENCE DOES NOT OVERCOME PRESUMPTION THAT TRANSACTION WAS
CLOSED. WHILE APPEAL INVOLVING ANOTHER PARTY MAY HAVE BEEN BROUGHT AS
TEST CASE, BOARD'S DECISION DID NOT AFFECT CLAIMANT'S RIGHTS AND
LIABILITIES AND SINCE THERE IS NO EVIDENCE TO ESTABLISH THAT ARMY
UNDERSTOOD THAT CLAIMANT WISHED TO KEEP BILLING TRANSACTIONS OPEN
PENDING RESOLUTION OF THAT APPEAL, IT IS FOUND THAT THIS ARGUMENT DOES
NOT ESTABLISH BASIS FOR PAYING CLAIM.
2. RECOVERY OF REFUNDS AUTHORIZED BY PRIOR GAO DECISIONS WHICH HAVE
ALREADY BEEN PAID IS NOT REQUIRED.
MATSON NAVIGATION COMPANY:
THIS CONCERNS A CLAIM FROM MATSON NAVIGATION COMPANY FOR EXCESS
OVERTIME BILLINGS FOR CIVIL SERVICE PERSONNEL UNDER MASTER BERTH
CONTRACT NO. MST-1020, DATED JANUARY 15, 1952, WITH THE DEPARTMENT OF
DEFENSE, WHICH WAS FORWARDED TO OUR CLAIMS DIVISION BY LETTER OF JANUARY
21, 1970, FROM THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, REFERENCE
FINCY-T, AS A DOUBTFUL CLAIM. FOR THE REASONS STATED BELOW WE FIND THAT
THERE IS NO LEGAL BASIS FOR PAYING ANY PORTION OF MATSON'S CLAIM.
WE WILL BRIEFLY SUMMARIZE THE BACKGROUND OF THE CLAIM AND THE ACTIONS
TAKEN TO DATE ON THE CLAIM. MATSON'S CLAIM FOR REFUND OF ALLEGED EXCESS
OVERTIME BILLINGS FOR THE PERIOD 1955 THROUGH 1960 WAS INITIALLY FILED
WITH ARMY ON DECEMBER 12, 1969, BASED UPON THE HOLDING IN APPEAL OF
STATES STEAMSHIP COMPANY, ARMED SERVICES BOARD OF CONTRACT APPEALS NO.
5721, DECIDED JUNE 13, 1960.
IN THE STATES STEAMSHIP CASE THE BOARD CONSIDERED A CLAIM FOR REFUND
OF EXCESS OVERTIME CHARGES ASSESSED AGAINST THE CONTRACTOR FOR WORK
PERFORMED BY CIVIL SERVICE PERSONNEL. THE DISPUTE CONCERNED THE PROPER
MEANING TO BE GIVEN THE TERM "OVERTIME DIFFERENTIAL COSTS" UNDER THE
STATES STEAMSHIP CONTRACT. THE CONTRACTOR HAD BEEN BILLED FOR THE FULL
AMOUNT OF PAY FOR THE CIVIL SERVICE EMPLOYEES DURING OVERTIME PERIODS,
WHICH INCLUDED BOTH THE STRAIGHT TIME AND THE OVERTIME RATE. IN
CALCULATING THE OVERTIME ASSESSMENTS THE GOVERNMENT HAD ALSO INCLUDED A
10 PERCENT OVERHEAD FACTOR AS WELL AS AN 8 PERCENT FACTOR COVERING
FRINGE BENEFITS. THE BOARD STATED THAT THE DISPUTE IN THE STATES
STEAMSHIP CASE WAS BEING BROUGHT AS A TEST CASE FOR VARIOUS OTHER
CONTRACTOR CLAIMS INVOLVING THE SAME ISSUE.
ARTICLES 5(B) AND (C) OF THE STATES STEAMSHIP CONTRACT OBLIGATED THE
GOVERNMENT TO PERFORM AND COMPLETE CARGO OPERATIONS "WITH REASONABLE
DISPATCH;" AND TO PAY ALL COSTS THEREFOR EXCEPT AS OTHERWISE PROVIDED IN
ARTICLE 5(D). UNDER ARTICLE 5(D) THE CONTRACTOR WAS REQUIRED TO PAY
'OVERTIME DIFFERENTIAL COSTS" INCURRED FOR CARGO OPERATIONS UNLESS THE
OVERTIME WAS SPECIFICALLY ORDERED BY THE GOVERNMENT.
THE "REASONABLE DISPATCH" PROVISION WAS VIEWED BY THE BOARD AS
CONTEMPLATING THE ADOPTION OF THE CUSTOMARY TWO-SHIFT (REGULAR AND SWING
SHIFT) SEVEN-DAY WEEK PREVAILING IN COMMERCIAL PRACTICE IN THE SAN
FRANCISCO BAY AREA. SINCE STATES STEAMSHIP WAS BEING ASSESSED UNDER
ARTICLE 5(D) FOR OVERTIME WORK PERFORMED BY GOVERNMENT STEVEDORE
PERSONNEL AND THE PRACTICE WAS FOR THE CONTRACTOR TO PAY THE DIFFERENCE
BETWEEN THE STRAIGHT TIME AND THE OVERTIME RATE AS "OVERTIME
DIFFERENTIAL COSTS," THE BOARD CONCLUDED THERE WAS NO BASIS TO
DISTINGUISH THE CASE MERELY BECAUSE CIVIL SERVICE PERSONNEL RATHER THAN
GOVERNMENT STEVEDORE PERSONNEL WERE INVOLVED. THEREFORE, THE TERM
"OVERTIME DIFFERENTIAL COSTS" IN ARTICLE 5(D) WAS GIVEN THE SAME MEANING
AS HAD BEEN ESTABLISHED IN BILLING FOR GOVERNMENT STEVEDORE PERSONNEL.
ALSO, THE BOARD HELD THAT THE 10 PERCENT FACTOR FOR OVERHEAD EXPENSE AND
THE 8 PERCENT FACTOR COVERING FRINGE BENEFITS, WHICH THE GOVERNMENT HAD
INCLUDED IN CALCULATING THE OVERTIME ASSESSMENT AGAINST THE CONTRACTOR,
WERE OUTSIDE OF THE MEANING OF "OVERTIME DIFFERENTIAL COSTS."
MATSON'S MASTER BERTH CONTRACT FOR TRANSPORTATION OF DEPARTMENT OF
DEFENSE CARGOES AT NEGOTIATED RATES CONTAINS PROVISIONS SUBSTANTIALLY
THE SAME AS IN PARAGRAPHS 5(B), (C) AND (D) OF THE CONTRACT CONSIDERED
BY THE BOARD IN THE STATES STEAMSHIP DECISION, AND MATSON'S CONTRACT
ALSO CONTAINS A DISPUTES CLAUSE.
MATSON'S LETTER OF DECEMBER 12, 1969, TO ARMY STATED THAT THE TERM
"OVERTIME DIFFERENTIAL COSTS" IN ITS CONTRACT HAD BEEN DEFINED BY THE
BOARD AS MAKING THE VESSEL RESPONSIBLE FOR THE DIFFERENCE RESULTING FROM
A COMPARISON OF ACTUAL COSTS WITH COSTS WHICH WOULD HAVE BEEN INCURRED
HAD THE WORK BEEN PERFORMED DURING REGULAR WORKING HOURS, WHICH WOULD BE
EITHER OVERTIME DIFFERENTIAL COSTS OR SHIFT DIFFERENTIAL COSTS,
WHICHEVER ARE APPLICABLE. MATSON'S LETTER ADVISED THAT WHEN OVERTIME
BILLINGS WERE RENDERED BY THE ARMY, AND PAID FOR BY MATSON, THEY WERE
COMPUTED AT THE FULL TIME AND ONE-HALF OVERTIME RATE REGARDLESS OF
WHETHER THE PERSONNEL INVOLVED ACTUALLY RECEIVED A DIFFERENTIAL OF
ONE-HALF OF THEIR REGULAR SALARY RATE OR A SHIFT DIFFERENTIAL. MATSON
MADE A NUMBER OF ASSUMPTIONS IN COMPUTING THE ALLEGED EXCESS OVERTIME
CHARGES INCLUDED IN ARMY'S BILLINGS. ITS LETTER SETS FORTH CERTAIN
ASSUMPTIONS AS TO THE PARTICULAR TIME PERIODS WHICH CONSTITUTED STRAIGHT
TIME, OVERTIME, AND SHIFT DIFFERENTIAL FOR THE CIVIL SERVICE PERSONNEL.
MATSON'S SUPPORTING WORKPAPERS ASSUMED THAT EVERY OVERTIME BILLING
INCLUDED 66 2/3 PERCENT STRAIGHT TIME AND 33 1/3 PERCENT OVERTIME AND
THAT SHIFT DIFFERENTIAL COSTS WERE 10 PERCENT OF STANDARD TIME COSTS.
BY APPLYING THESE ASSUMPTIONS MATSON ARRIVED AT A FIGURE FOR "REVISED
CHARGEABLE COSTS" FOR EACH BILL WHICH MATSON DEDUCTED FROM THE AMOUNT
ACTUALLY BILLED AND THE DIFFERENCE WAS THE REFUND CLAIMED UNDER EACH
BILL. BY AGGREGATING THE INDIVIDUAL BILLS MATSON OBTAINED A TOTAL
REFUND FIGURE FOR 1959 AND 1960.
FOR THE YEARS 1955 THROUGH 1958 MATSON WAS CHARGED AT A RATE OF $23
PER HOUR FOR OVERTIME OF CIVIL SERVICE PERSONNEL AND THESE BILLS DO NOT
GIVE ANY FURTHER BREAKDOWN. MATSON APPLIED ITS EXPERIENCE RATIOS FOR
COMPUTING THE REFUND FOR 1959-1960 TO OVERTIME ASSESSMENTS IN 1955-1958
TO CALCULATE WHAT IT BELIEVED WAS THE OVERTIME DIFFERENTIAL COSTS ON
THOSE BILLINGS. THE DIFFERENCE BETWEEN MATSON'S CALCULATIONS OF THE
OVERTIME DIFFERENTIAL COSTS AND THE AMOUNT ACTUALLY BILLED AND PAID IS
THE AMOUNT OF REFUND CLAIMED FOR 1955 THROUGH 1958.
ON JANUARY 21, 1970, THE DEPARTMENT OF THE ARMY FORWARDED THE MATTER
TO OUR CLAIMS DIVISION SINCE ARMY HAD DOUBT AS TO THE VALIDITY OF THE
CLAIM FOR THE FOLLOWING REASONS:
(1) WHETHER ASBCA NO. 5721, WHICH CONCERNED STATES STEAMSHIP COMPANY,
APPLIED AS AUTHORITY TO REFUND EXCESS CHARGES UNDER OTHER CONTRACTS;
(2) THE EFFECT OF ARMY'S INABILITY TO VERIFY CHARGES SINCE ADEQUATE
RECORDS WERE NOT AVAILABLE; AND
(3) THE EFFECT OF THE GAO 10-YEAR STATUTE OF LIMITATIONS ON A PORTION
OF THE AMOUNT CLAIMED.
BY CERTIFICATE OF SETTLEMENT OF JANUARY 19, 1971, ISSUED TO MATSON,
OUR CLAIMS DIVISION ALLOWED A REFUND FOR THAT PORTION OF ITS CLAIM
APPLICABLE TO THE PERIOD AFTER JANUARY 26, 1960, IN THE AMOUNT OF
$2,388.09. THE CLAIMS DIVISION CONCLUDED THAT ANY REFUND FOR THE PERIOD
BETWEEN JANUARY 1955 THROUGH JANUARY 25, 1960, WAS BARRED BY THE 10-YEAR
STATUTE OF LIMITATIONS, 31 U.S.C. 71A, SINCE THE CLAIM HAD NOT BEEN
SUBMITTED TO THE GENERAL ACCOUNTING OFFICE UNTIL JANUARY 25, 1970, THE
DATE THE CLAIMS DIVISION RECEIVED ARMY'S LETTER OF JANUARY 21, 1970.
WITH RESPECT TO THE STATES STEAMSHIP CASE, ASBCA NO. 5721, THE CLAIMS
DIVISION CONCLUDED THAT SINCE MATSON WAS NOT A PARTY TO THAT CASE NO
RIGHT TO RECOVER ACCRUED TO MATSON AS A RESULT OF THAT DECISION.
ON JUNE 4, 1971, MATSON REQUESTED RECONSIDERATION OF THE CERTIFICATE
OF SETTLEMENT OF THE CLAIMS DIVISION. THE LETTER CITED B-148266, JULY
14, 1964 (44 COMP. GEN. 1), FOR THE PROPOSITION THAT SINCE MATSON WAS
OBLIGATED TO FOLLOW A MANDATORY DISPUTES PROCEDURE, MATSON HAD NO RIGHT
TO COME TO THE GENERAL ACCOUNTING OFFICE UNTIL ARMY RENDERED A DECISION
ON THE CLAIM. ITS LETTER ALSO CITED OUR DECISION B-162293, SEPTEMBER
29, 1967, AS AN EXAMPLE OF A CASE WHERE THIS OFFICE HELD THAT THE
STATUTE OF LIMITATIONS DOES NOT RUN WHILE A CONTRACTOR IS PURSUING
MANDATORY PROCEDURES UNDER THE DISPUTES CLAUSE. WITH RESPECT TO THE
STATES STEAMSHIP CASE, MATSON STATED THAT WHILE ONLY STATES STEAMSHIP
COMPANY'S CASE WAS CONSIDERED, THAT DECISION ESTABLISHED A POLICY AND
COMPANIES OTHER THAN STATES STEAMSHIP FILED CLAIMS AGAINST THE
GOVERNMENT BASED ON THE STATES STEAMSHIP DECISION. MATSON URGED THAT
SINCE ASBCA NO. 5721 WAS WIDELY CONSIDERED AS A TEST CASE, THAT DECISION
SHOULD HAVE THE SAME WEIGHT AS IF MATSON WERE A PARTY TO THE CASE EVEN
THOUGH MATSON WAS NOT SPECIFICALLY NAMED THEREIN.
THE MATTER WAS REVIEWED AND ON JUNE 20, 1972, OUR OFFICE FOUND THAT
ASBCA NO. 5721 WAS IN THE NATURE OF A TEST CASE; THAT OUR RECORDS
SHOWED THAT GOVERNMENT AGENCIES INTENDED TO APPLY THAT DECISION
PROSPECTIVELY FROM JUNE 13, 1960, TO CLAIMS OF OTHER STEAMSHIP COMPANIES
WHICH INVOLVED THE SAME ISSUE; AND THAT MATSON HAD PURSUED ITS
ADMINISTRATIVE REMEDIES AS FAR AS IT COULD WITH THE DEPARTMENT OF THE
ARMY. IN VIEW OF THESE FINDINGS, THE DECISION CONCLUDED THAT MATSON'S
CLAIM WAS TIMELY FILED AND SINCE THE VALIDITY OF THE CLAIM FOR 1959 IN
THE AMOUNT OF $5,161.93 WAS NOT QUESTIONED, EXCEPT FOR TIMELINESS, THE
CLAIM FOR THAT YEAR WAS AUTHORIZED FOR PAYMENT. HOWEVER, WE STATED THAT
WE WOULD NOT BE WARRANTED IN AUTHORIZING PAYMENT OF ANY OF THE AMOUNT
CLAIMED FOR THE YEARS 1955 THROUGH 1958 SINCE NO RECORDS WERE AVAILABLE
TO IDENTIFY THE NAMES OF THE EMPLOYEES INVOLVED IN THE OVERTIME CHARGES
AND WITHOUT SUCH INFORMATION THE CLAIM COULD NOT BE VERIFIED.
THEREAFTER, MATSON REQUESTED RECONSIDERATION OF OUR JUNE 20 DECISION,
CONTENDING THAT IT SHOULD NOT BE PENALIZED FOR ARMY'S NOT HAVING
ADEQUATE RECORDS. MATSON AGAIN URGED THAT THE REFUND FOR THE PERIOD
1955 THROUGH 1958 BE DETERMINED IN ACCORDANCE WITH EXPERIENCE RATIOS FOR
1959-1960, AS PREVIOUSLY DESCRIBED.
IN A MEMORANDUM OF LAW RECEIVED BY OUR OFFICE ON AUGUST 1, 1973, THE
OFFICE OF THE JUDGE ADVOCATE GENERAL (JAG), DEPARTMENT OF THE ARMY, HAS
URGED THAT THE HISTORY OF MATSON'S CLAIM INDICATES THAT THERE WAS AN
ACCORD AND SATISFACTION AND THAT MATSON'S CLAIM SHOULD BE DENIED. THE
JAG MEMORANDUM STATES THAT ACCEPTANCE OF FINAL PAYMENT OR BENEFITS UNDER
A GOVERNMENT CONTRACT AND FAILURE TO PROTEST DEDUCTIONS OR OVERCHARGES,
COUPLED WITH A LONG DELAY BEFORE REGISTERING A CLAIM ARE SUFFICIENT ACTS
ON THE PART OF A CONTRACTOR TO PROVE AN ACCORD AND SATISFACTION. A
NUMBER OF CASES ARE CITED IN THE JAG MEMORANDUM IN SUPPORT OF THIS
POSITION.
MATSON, ON THE OTHER HAND, CONTENDS THAT IT HAS BEEN TREATED UNFAIRLY
BY ARMY AND THAT THE JAG MEMORANDUM IS A FURTHER EXAMPLE OF THIS UNFAIR
TREATMENT. MATSON URGES THAT THE JAG MEMORANDUM DOES NOT ANSWER THE
FUNDAMENTAL QUESTION RELATING TO MATSON'S BEING PENALIZED BECAUSE ARMY
LOST RECORDS COVERING THE EMPLOYEES WHICH ARE THE SUBJECT OF THE CLAIM.
MATSON ALSO REFERS TO THE STATEMENT IN THE STATES STEAMSHIP APPEAL,
SUPRA, WHICH RECOGNIZED THAT THE APPEAL WAS BROUGHT AS A TEST CASE FOR
VARIOUS OTHER CONTRACTS AND CLAIMS INVOLVING THE SAME ISSUE. MATSON
ADVISES THAT IT AND STATES STEAMSHIP COMPANY WERE MEMBERS OF THE WEST
COAST AMERICAN FLAG BERTH OPERATORS CONFERENCE IN THE 1950'S AT THE TIME
OF THE OCCURRENCE OF THE EVENTS GIVING RISE TO THIS DISPUTE. IN
ADDITION, MATSON POINTS TO THE REFERENCE IN THE STATES STEAMSHIP APPEAL
TO THE LETTER IN WHICH THE COMMANDER, MSTS, SUPPORTED THE VESSEL
OPERATOR'S POSITION; TO THE REFERENCE IN THAT DECISION TO THE
PROMULGATION IN 1954 OF A SCHEDULE OF ASSESSMENTS BY THE ARMY SHIPPER
SERVICE OVER THE PROTESTS OF THE VESSEL OPERATORS WHICH FAVORED THE ARMY
AND TO THE STATEMENT IN THE DECISION THAT THERE WERE NUMEROUS EXCHANGES
OF CORRESPONDENCE AND NUMEROUS CONFERENCES BETWEEN THE MSTS AND VESSEL
OPERATORS OVER THE ENSUING SEVERAL YEARS CONCERNING THE DISPUTE. WHILE
MATSON CONCEDES THAT IT IS UNABLE TO PRODUCE EVIDENCE SHOWING THAT IT
PROTESTED TO THE ARMY WHEN THE BILLINGS WERE MADE (DURING THE PERIOD
1955 THROUGH 1958), IT IS URGED THAT AN INFERENCE CAN BE DRAWN FROM THE
STATEMENTS IN THE STATES STEAMSHIP APPEAL THAT MATSON WAS A PARTY TO AT
LEAST SOME OF THE CORRESPONDENCE REFERRED TO IN THAT DECISION. MATSON
ARGUES THAT EVEN IF THE MATTER IS CONSTRUED IN A MATTER IS CONSTRUED IN
A MANNER THAT IS MOST UNFAVORABLE TO MATSON AND IT COULD BE SAID THAT
MATSON WAS NOT A PARTY TO THE CORRESPONDENCE, THIS DOES NOT MEAN THAT
ARMY WAS NOT AWARE OF THE TYPE OF CLAIM MATSON EVENTUALLY FILED. MATSON
ADVISES THAT IT DID NOT IMMEDIATELY PURSUE ITS CLAIM AGAINST ARMY SINCE
IT HAD A LARGER CLAIM OF A SIMILAR NATURE AGAINST NAVY WHICH MATSON
CHOOSE TO PURSUE FIRST. FOR THESE REASONS MATSON URGES THAT THE FACTS
OF ITS CLAIM ARE DISTINGUISHABLE FROM THE CASES PRINCIPALLY RELIED ON BY
JAG IN SUPPORT OF AN ACCORD AND SATISFACTION.
WHILE WE DO NOT BELIEVE THAT THE LEGAL DOCTRINE OF ACCORD AND
SATISFACTION EXACTLY FITS THIS SITUATION, THERE IS A GENERAL LEGAL
PRESUMPTION THAT WHEN A CONTRACT HAS BEEN PERFORMED AND A STIPULATED
CONSIDERATION HAS BEEN PAID, THE TRANSACTION IS A CLOSED ONE. IF THERE
ARE CLAIMS ON THE PART OF THE CONTRACTOR WHICH AFFECT THE AMOUNT DUE AND
PAYABLE UNDER THE TERMS OF THE CONTRACT, THEY SHOULD BE ASSERTED AT OR
BEFORE THE TIME A SETTLEMENT IS MADE. THE GOVERNMENT IS ENTITLED TO
KNOW, WHEN IT MAKES WHAT IT BELIEVES IS A FINAL PAYMENT ON ITS CONTRACT,
WHAT CLAIMS A CONTRACTOR INTENDS TO ASSERT AGAINST IT ON ACCOUNT OF THE
CONTRACT. IT IS ITS RIGHT TO KNOW WHETHER THE SUPPOSED FINAL PAYMENT IS
IN FACT FINAL AND CONCLUSIVE. SEE POOLE ENGINEERING & MACHINE COMPANY
V. UNITED STATES, 57 CT. CL. 232 (1922); DUBOIS CONSTRUCTION
CORPORATION V. UNITED STATES, 98 F. SUPP. 590 (1951); MCQUAGGE V.
UNITED STATES, 197 F. SUPP. 460 (1961).
EACH OF THE BILLINGS UNDER THE MASTER BERTH CONTRACT WAS A SEPARATE
TRANSACTION, AND MATSON DID NOT RAISE ANY SPECIFIC OBJECTION OR PROTEST
AT OR BEFORE FINAL PAYMENT. IN FACT, IT WAS NOT UNTIL 1969 OR SOME NINE
YEARS AFTER THE LAST OF THE PAYMENTS IN ISSUE AND SOME NONE YEARS AFTER
THE BOARD RENDERED ITS DECISION IN THE STATES STEAMSHIP APPEAL, SUPRA,
THAT MATSON FIRST FORMALLY PRESENTED ITS CLAIM TO ARMY.
THE REASONS ADVANCED BY MATSON FOR NOT RAISING THE MATTER OF THE
OVERPAYMENT EARLIER ARE THAT THE STATES STEAMSHIP APPEAL WAS IN THE
NATURE OF A TEST CASE AND THAT MATSON WAS PURSUING ANOTHER SIMILAR BUT
LARGER CLAIM WITH NAVY.
WE ARE NOT PERSUADED THAT EITHER OF THESE REASONS CONSTITUTES A BASIS
FOR OVERCOMING THE PRESUMPTION THAT THE SUBJECT TRANSACTIONS ARE CLOSED
IN THE ABSENCE OF AN ASSERTION AT OR BEFORE SETTLEMENT. IF MATSON
WISHED TO KEEP ITS BILLING TRANSACTIONS WITH ARMY OPEN PENDING THE
RESOLUTION OF AN APPEAL INVOLVING ANOTHER PARTY, IT IS OUR OPINION THAT
MATSON SHOULD HAVE CLEARLY MADE ITS INTENT KNOWN TO THE ARMY AND
REQUESTED SOME CONFIRMATION FROM THE ARMY REGARDING THIS UNDERSTANDING.
MATSON HAS NOT BEEN ABLE TO FURNISH ANY EVIDENCE THAT IT HAD SUCH AN
UNDERSTANDING WITH THE ARMY, THEREFORE, IT CAN ONLY BE A MATTER OF
SPECULATION WHETHER ARMY WAS AWARE OF MATSON'S ALLEGED INTENT.
WHILE THE BOARD STATED THAT THE STATES STEAMSHIP APPEAL WAS IN THE
NATURE OF A TEST CASE, MATSON WAS NOT A PARTY TO THAT PROCEEDING AND WE
FIND NO LEGAL BASIS FOR CONSTRUING THIS OBSERVATION BY THE BOARD AS
AFFECTING ANY RIGHTS OR LIABILITIES THAT MATSON MIGHT HAVE. MATSON'S
DECISION TO PURSUE THE NAVY CLAIM FIRST IS NOT RELEVANT TO THE ISSUE
BEFORE US REGARDING THE FINALITY OF OTHER TRANSACTIONS. (THE NAVY HAD
ADVISED THAT THE CLAIMS SUBMITTED BY MATSON CONCERNING THE OVERTIME
CHARGES WERE SETTLED PURSUANT TO THE HOLDING IN THE STATES STEAMSHIP
CASE BASED ON THE ASSUMPTION THAT MATSON WAS SUBMITTING CLAIMS WHICH HAD
BEEN RAISED PRIOR TO THE ASBCA DECISION. WE NOTE THAT THE INSTANT
RECORD IS DEVOID OF ANY EVIDENCE FOR MAKING A COMPARABLE ASSUMPTION WITH
RESPECT TO MATSON'S CLAIM WITH THE ARMY.)
UPON RECONSIDERATION, IT IS OUR VIEW THAT THE RECORD SUPPORTS THE
PRESUMPTION THAT THE SUBJECT TRANSACTIONS WERE FINALLY SETTLED BY THE
ARMY. ACCORDINGLY, WE FIND NO LEGAL BASIS FOR PAYING ANY PORTION OF
MATSON'S CLAIM FOR THE PERIOD 1955 THROUGH 1960.
HOWEVER, SINCE IT CAN BE ASSUMED THAT THE REFUNDS AUTHORIZED BY OUR
PRIOR DECISIONS HAVE ALREADY BEEN PAID TO MATSON WE WILL NOT REQUIRE THE
RECOVERY OF THOSE PAYMENTS. SEE B-107486, JANUARY 4, 1967 AND 19 COMP.
GEN. 129, 130 (1939).
B-179944, AUG 8, 1974
HEADNOTES-UNAVAILABLE
QUESTION UNDERLYING RATE APPLICABILITY ISSUE IN SETTLEMENTS
DISALLOWING CARRIER'S CLAIMS IS WHETHER 3 LOTS OF CANNISTERS SHOULD BE
VIEWED AS ONE SHIPMENT OR 3 SEPARATE SHIPMENTS SINCE NONE OF THE 3 GBLS
WERE CROSS-REFERENCED. SUBSEQUENT CORRECTION NOTICES SIGNED BY CARRIER
14 MONTHS LATER SIGNIFY THAT CARRIER AGREED TO CONSIDER 3 LOTS AS A
VOLUME SHIPMENT COVERED BY SEVERAL BILLS OF LADING, AND VOLUME RATES ARE
APPLICABLE.
PACIFIC INTERMOUNTAIN EXPRESS CO:
PACIFIC INTERMOUNTAIN EXPRESS CO. (P.I.E.) HAS REQUESTED A REVIEW OF
TWO TRANSPORTATION AND CLAIMS DIVISION (TCD) SETTLEMENT ACTIONS; ONE,
DATED OCTOBER 24, 1972 (CLAIM TK-945316), DISALLOWED ITS CLAIM NO.
1P03833 FOR $872.99; THE OTHER DATED MARCH 7, 1972 (CLAIM TK-942387),
DISALLOWED ITS CLAIM NO. 1P03831 FOR $854.18. P.I.E. ALSO REQUESTS
REVIEW OF TCD'S ACTION IN CAUSING AN OVERCHARGE OF $871.41 ON GOVERNMENT
BILL OF LADING (GBL) NO. F-0033390) TO BE COLLECTED BY DEDUCTION.
P.I.E.'S CLAIM NUMBER IS 1P03832.
GOVERNMENT BILLS OF LADING NOS. F-0033389, F-0033390 AND F-0033391,
DATED JUNE 18, 1968, WERE ISSUED TO COVER THE TRANSPORTATION OF
CANNISTERS LOADED IN (CONEX) STEEL CONTAINERS FURNISHED BY THE UNITED
STATES GOVERNMENT, FROM MILITARY OCEAN TERMINAL BAY AREA, OAKLAND,
CALIFORNIA, TO INDIANA ARMY AMMUNITION DEPOT, CHARLESTOWN, INDIANA. THE
BILLS OF LADING WERE EXECUTED AT ORIGIN BY THE SAME AGENT. GBL NO.
F-0033389 AND NO. F-0033390 INDICATE THAT TWO FORTY-FOOT TRUCKS WERE
FURNISHED AND USED AND GBL NO. F-0033391 SHOWS THAT A SET OF 26-FOOT
DOUBLES WAS USED. THE ARTICLES WERE TENDERED AND SHIPPED ON THE SAME
DAY FROM THE SAME SHIPPER, FROM THE SAME POINT OF ORIGIN TO THE SAME
CONSIGNEE AT THE SAME DESTINATION. THE PHRASE "RMMTB TDR 15" APPEARS IN
THE TARIFF OR SPECIAL RATE AUTHORITIES SPACE ON EACH BILL OF LADING.
ALTHOUGH THE PHRASE MEANS ROCKY MOUNTAIN MOTOR TARIFF BUREAU SECTION 22
QUOTATION 15, A SUCCESSOR QUOTATION, QUOTATION 15-A, ACTUALLY WAS IN
EFFECT WHEN THE ARTICLES WERE TENDERED FOR SHIPMENT.
P.I.E. ORIGINALLY BILLED AND COLLECTED FREIGHT CHARGES APPARENTLY ON
THE BASIS OF A RATE OF $3.98 PER 100 POUNDS AND A VOLUME MINIMUM WEIGHT
OF 60,000 POUNDS APPLIED TO THE ACTUAL WEIGHT ON EACH BILL OF LADING.
THIS RATE AND MINUMUM WEIGHT ARE NAMED IN ITEM 2200 OF QUOTATION 15-A.
IN OUR SUBSEQUENT AUDIT, LOWER CHARGES WERE FOUND APPLICABLE BASED ON
THE ACTUAL WEIGHT OF EACH PART LOT BECAUSE CORRECTION NOTICES (DD FORM
1352) HAD BEEN ISSUED FOR THE THREE BILLS OF LADING TO INDICATE THAT
EACH LOT WAS PART OF A LARGER VOLUME SHIPMENT: SINCE THE TOTAL WEIGHT
OF THE THREE LOTS WAS 172,280 POUNDS, THE SHIPMENT WAS SUBJECT TO ITEM
2195 OF QUOTATION 15-A WHICH NAMES ON THE COMMODITY TRANSPORTED A RATE
OF $2.71 PER 100 POUNDS AND A VOLUME MINIMUM WEIGHT OF 120,000 POUNDS.
THE ISSUE HERE IS ONE OF FACT: SHOULD THE TRANSPORTATION OF THE
THREE LOTS OF CANNISTERS BE VIEWED AS ONE VOLUME SHIPMENT OR AS THREE
SEPARATE VOLUME SHIPMENTS?
P.I.E. CONTENDS THAT THE MATERIALS WERE TENDERED AS THREE SEPARATE
SHIPMENTS, POINTING OUT THAT THE BILLS OF LADING WERE NOT
CROSS-REFERENCED AS REQUIRED BY DEFENSE SUPPLY AGENCY REGULATIONS
(DSAR), AND THAT THE LACK OF CROSS-REFERENCING INDICATES THAT EACH LOT
WAS TENDERED AS A SINGLE SHIPMENT.
THE DEPARTMENT OF THE ARMY AND TCD ASSERT THAT THE MATERIALS WERE
TENDERED TO AND ACCEPTED BY THE CARRIER AS ONE SHIPMENT AND CITE THE
SIGNED BILL OF LADING CORRECTION NOTICES (DD FORM 1352) AS EVIDENCE.
THE CORRECTION NOTICES WERE ISSUED ON JUNE 27, 1968, FOR THE THREE BILLS
OF LADING TO INDICATE THAT EACH LOT WAS PART OF A LARGER VOLUME
SHIPMENT, AND ALL THREE OF THEM WERE ACCEPTED AND SIGNED BY A
REPRESENTATIVE OF P.I.E. ON AUGUST 5, 1970.
EVEN THOUGH THE THREE BILLS OF LADING ARE EVIDENCE OF THE TENDER OF
VOLUME SHIPMENTS, IT SEEMS APPROPRIATE TO NOTE THAT A VOLUME MINUMUM IS
DISTINGUISHED FROM A TRUCKLOAD MINIMUM IN THAT THE VOLUME RATE APPLIES
WHEN A SHIPPER TENDERS THE VOLUME MINUMUM WEIGHT OF A COMMODITY FOR
TRANSPORTATION AT ONE TIME, EVEN THOUGH IT MAY EXCEED THE CARRYING
CAPICITY OF THE LARGEST VEHICLE AVAILABLE AND MUST BE TRANSPORTED IN TWO
OR MORE VEHICLES; WHEREAS, A TRUCKLOAD MINIMUM IS GENERALLY UNDERSTOOD
TO BE THE QUANTITY WHICH A CARRIER CAN TRANSPORT IN A SINGLE VEHICLE.
STOVES FROM ALABAMA AND TENNESSEE TO INTERSTATE POINTS, 4 M.C.C. 641,
643 (FOOTNOTE); GULF PORTS-ALABAMA, GEORGIA AND TENNESSEE-COMMODITY
RATES, 10 M.C.C. 106 (FOOTNOTE).
QUOTATION 15-A INCORPORATED BY REFERENCE NATIONAL MOTOR FREIGHT
CLASSIFICATION A-11, MF-ICC 13. ITEM 110, SECTION 5, OF THE
CLASSIFICATION DEFINES A SHIPMENT AS "*** A LOT OF FREIGHT TENDERED TO
THE CARRIER BY ONE CONSIGNOR AT ONE PLACE AT ONE TIME FOR DELIVERY TO
ONE CONSIGNEE AT ONE DESTINATION ON ONE BILL OF LADING." NEVERTHELESS,
THE USE OF TWO OR MORE BILLS OF LADING FOR ONE SHIPMENT DOES NOT
AUTOMATICALLY PRECLUDE THE APPLICATION OF VOLUME RATES EVEN WHERE
CLASSIFICATION RULES REQUIRE THE USE OF ONE BILL OF LADING. 36 COMP.
GEN. 119 (1956). RATHER, THE QUESTION AS TO WHETHER A PARTICULAR
SHIPMENT IS A VOLUME SHIPMENT OR A SERIES OF INDIVIDUAL SHIPMENTS
TYPICALLY TURNS ON THE SPECIFIC FACTS INVOLVED.
IN WILLINGHAM V. SELIGMAN, 179 F.2D 257 (5TH CIR. 1950), MATERIAL
REQUIRING TWO OR MORE CARRIER VEHICLES FOR TRANSPORTATION HAD BEEN
TENDERED FOR SHIPMENT UNDER SEPARATE BILLS OF LADING COVERING EACH
VEHICLE LOT AND THE BILLS OF LADING WERE CROSS-REFERENCED TO INDICATE
THAT EACH BILL OF LADING WAS PART OF A VOLUME TENDER. THE COURT HELD
THAT THE ISSUANCE OF SEPARATE BILLS OF LADING WAS NOT FATAL TO THE
APPLICATION OF THE VOLUME RATE BECAUSE THE CROSS-REFERENCED BILLS OF
LADING, CONSIDERED IN A COLLECTIVE SENSE, IN EFFECT CONSTITUTED ONLY THE
ONE BILL OF LADING CONTEMPLATED BY THE TARIFF DEFINITION OF A SHIPMENT.
IN EXPOSITION COTTON MILLS V. SOUTHERN RY., 234 I.C.C. 441 (1939),
SHIPMENTS WERE TENDERED AS CARLOADS, ACCEPTED AS CARLOADS AND HANDLED BY
THE ORIGINATING CARRIER AS CARLOADS. THE SHIPPER'S AGENT PREPARED
SEVERAL BILLS OF LADING FOR EACH OF THE CARLOAD LOTS. THE COMMISSION,
RELYING UPON THE CARRIER'S STATUTORY DUTY TO ISSUE PROPER BILLS OF
LADING, FOUND THE CARLOAD RATES APPLICABLE ON THE GROUND THAT FAILURE TO
COMPLY WITH THE TARIFF REQUIREMENT FOR ISSUANCE OF ONE BILL OF LADING
FOR EACH CARLOAD LOT WAS DUE TO CARRIER NEGLIGENCE WHICH COULD NOT BE
IMPUTED TO THE SHIPPER.
THE COURT OF CLAIMS DEALT WITH THE VOLUME SHIPMENT ISSUE IN J.H.
ROSE TRUCK LINE, INC. V. UNITED STATES, 462 F.2D 502, 511 (CT. CL.
1972). THE FIRST GROUP OF BILLS OF LADING WERE PROPERLY
CROSS-REFERENCED ACCORDING TO THE DSAR, SO THE LOTS INCLUDED THEREIN
WERE FOUND TO CONSTITUTE A SINGLE SHIPMENT. A SECOND AND THIRD SET OF
MULTIPLE BILLS OF LADING WERE NOT ADEQUATELY CROSS-REFERENCED AND A
DEFENSE BASED ON THE APPLICATION OF VOLUME SHIPMENT RATES WAS DENIED.
THE DENIAL TURNED ON THE FACT THAT THE CARRIER WAS NOT PUT ON NOTICE
THAT IT WAS BEING TENDERED A LARGE SHIPMENT WHICH IT WAS EXPECTED TO
TRANSPORT AS A SINGLE VOLUME SHIPMENT AT THE APPLICABLE VOLUME WEIGHT.
IN GOODMAN MANUFACTURING CO. V. CHICAGO, B. & Q. R.R., 21 I.C.C. 583
(1911), THE ISSUANCE OF MORE THAN ONE BILL OF LADING PRECLUDED THE
APPLICATION OF ONE CARLOAD MINIMUM WEIGHT. THERE, THE SHIPPER PREPARED
TWO BILLS OF LADING COVERING TWO CARLOADS OF MACHINERY SHIPPED ON THE
SAME DAY TO THE SAME CONSIGNEE. A RULE OF THE GOVERNING CLASSIFICATION
PERMITTED THE APPLICATION OF THE CARLOAD RATE TO A SHIPMENT WEIGHING THE
MINIMUM WEIGHT OR MORE; IT ALSO APPLIED WHEN THE MINIMUM WEIGHT WAS
TENDERED IN LESS THAN TWO OR MORE FULL CARLOAD LOTS, PROVIDED THAT THE
SHIPMENT WAS COVERED BY ONE BILL OF LADING. THE COMMISSION REJECTED THE
SHIPPER'S POST-DELIVERY CONTENTION THAT THE TWO CARLOADS WERE IN FACT
ONE SHIPMENT, AND FOUND INSTEAD THAT TWO CARS WERE INTENTIONALLY
REQUESTED FOR SAFETY REASONS, NOTWITHSTANDING THE SHIPPER'S ASSERTION
THAT IT PREPARED TWO BILLS OF LADING ONLY IN ERROR.
IN DALLAS COTTON EXCHANGE V. ATCHISON, TOPEKA & SANTA FE RY., 163
I.C.C. 57 (1930), TWO SHIPMENTS OF COMPRESSED COTTON COVERED BY SEPARATE
BILLS OF LADING WERE LOADED IN ONE CAR AT ONE TIME DESTINED FOR THE SAME
CONSIGNEE. A RULE GOVERNING EXPORT TRAFFIC PERMITTED A SHIPPER TO
SECURE A CARLOAD RATE WHERE A CAR IS FILLED WITH A NUMBER OF SHIPMENTS
COVERED BY SEPARATE BILLS OF LADING BILLED TO ONE PACIFIC PORT OF
EXPORT. THE SHIPPER ARGUED THAT THE DOMESTIC RULE REQUIRING THE USE OF
ONE BILL OF LADING WAS DISCRIMINATORY AND ASKED THAT THE EXPORT-TRAFFIC
RULE BE APPLIED TO DOMESTIC TRAFFIC AS WELL. WITHOUT PROOF OF THE
NECESSITY FOR THE USE OF THE TWO BILLS OF LADING AND WITH RELIANCE ON
GOODMAN, THE COMMISSION REFUSED.
THE DETERMINATIVE ISSUE IN THE CASES IS APPARENT. THE COURTS AND THE
COMMISSION WILL UPHOLD THE APPLICABILITY OF VOLUME RATES EVEN WHERE
MULTIPLE BILLS OF LADING ARE USED PROVIDED THE CARRIER HAS NOTICE THAT
THE SHIPMENT WAS TENDERED AS A VOLUME SHIPMENT. IN WILLINGHAM,
EXPOSITION, AND WITH RESPECT TO THE FIRST SET OF BILLS OF LADING IN J.H.
ROSE, THE RECORD WAS CLEAR THAT VOLUME OR CARLOAD TENDERS WERE MADE AND
ACCEPTED AS SUCH BY THE CARRIERS, EXCEPT FOR THE TECHNICAL REQUIREMENT
FOR ISSUANCE OF A SINGLE BILL OF LADING. THEREFORE, THE COURTS AND THE
COMMISSION JUSTIFIABLY REFUSE TO SUBORDINATE THE SUBSTANCE OF THE
TRANSACTION TO THE FORM.
BY COMPARISON IN DALLAS, GOODMAN, AND WITH RESPECT TO THE OTHER
SHIPMENTS IN J.H. ROSE, THERE IS NO EVIDENCE IN THE RECORD THAT THE
ARTICLES WERE ORIGINALLY TENDERED AND ACCEPTED AS ONE SHIPMENT. THE
SHIPPER'S POST-DELIVERY CONTENTIONS THAT THEY WERE VOLUME SHIPMENTS WERE
ATTEMPTS TO CREATE FACTS RATHER THAN REMEDIES OF DISCREPANCIES IN
EXISTING FACTS. THIS LACK OF NOTICE, EITHER ACTUAL OR CONSTRUCTIVE, OF
VOLUME SHIPMENTS AND HENCE VOLUME RATES, MAY HAVE PREVENTED THE CARRIERS
FROM MAKING APPROPRIATE ARRANGEMENTS. TO PREVENT THIS POSSIBLE
PREJUDICE AND IN THE ABSENCE OF CARRIER NEGLIGENCE, FAILURE OF NOTICE
PRECLUDES THE USE OF VOLUME RATES.
THE INSTANT CASE FALLS WITHIN THE WILLINGHAM-EXPOSITION RATIONALE.
THE BILL OF LADING CONTRACTS CONSTITUTE A PRIMA FACIE SHOWING THAT THE
INDIVIDUAL LOTS WERE TENDERED TO THE CARRIER AND ACCEPTED BY THE CARRIER
AS INDIVIDUAL SHIPMENTS AND THE SHIPPING OFFICER'S FAILURE TO
CROSS-REFERENCE THE BILLS OF LADING LENDS SUPPORT TO THIS CONCLUSION,
BUT THERE IS EVIDENCE IN THE RECORD TO REFUTE THIS PRIMA FACIE SHOWING.
BILL OF LADING CORRECTION NOTICES (DD FORM 1352), INDICATING THAT THE
SHIPMENT WAS A LARGER VOLUME SHIPMENT, WERE ACCEPTED BY AND BEAR THE
SIGNATURE OF A REPRESENTATIVE OF P.I.E. BY ASSENTING TO THE CORRECTION,
P.I.E. ADMITS THAT BOTH PARTIES CONTEMPLATED A LARGER VOLUME SHIPMENT IN
FACT. SINCE P.I.E. HAS EVIDENCED AWARENESS OF THE ACTUAL FACTS, THE
WILLINGHAM-EXPOSITION RATIONALE IS CONTROLLING AND THE MERE TECHNICAL
REQUIREMENT OF A SINGLE BILL OF LADING WILL NOT DEFEAT THE TRUE FACTS
AND INTENTION OF THE PARTIES. SEE 52 COMP. GEN. 575 (1973).
P.I.E. ALSO CITES SINCLAIR REFINING CO. V. FORT WORTH & RIO GRANDE
RY., 169 I.C.C. 421 (1930), APPARENTLY FOR THE PROPOSITION THAT THE
SHIPPER MUST PUT THE CARRIER ON NOTICE OF THE ACTUAL FACTS AT THE TIME
THE SHIPMENT IS PICKED UP, WITH THE RESULT THAT A SUBSEQUENT CORRECTION
CANNOT REMEDY AN ERRONEOUS BILL OF LADING. IN SINCLAIR THE CARRIER HAD
NO NOTICE OF THE NATURE OF THE SHIPMENT; HERE, THE SHIPMENTS AS
TENDERED WERE VOLUME SHIPMENTS AND THE SIGNED BILL OF LADING CORRECTION
NOTICES INDICATE THAT P.I.E. AT LEAST HAD CONSTRUCTIVE NOTICE OF A
LARGER VOLUME SHIPMENT THAT QUITE PROBABLY WOULD HAVE MOVED IN THE SAME
EQUIPMENT. THE DANGER OF UNFAIR SURPRISE THAT WORRIED THE COMMISSION IS
SINCLAIR IS NOT PRESENT HERE; THUS, SINCLAIR IS INAPPOSITE.
P.I.E. ALSO POINTS OUT THAT WHEN A TARIFF RULE REQUIRES A SPECIFIC
INDORSEMENT SUCH AS "EXCLUSIVE USE OF A VEHICLE" ON A BILL OF LADING,
SUBSEQUENT INFORMATION IS NOT ACCEPTABLE TO CORRECT AN OMISSION OF THE
REQUIRED INDORSEMENT. TYPICALLY THE TARIFF RULE PROVIDES FOR A BILL OF
LADING ANNOTATION "EXCLUSIVE USE HAS BEEN ORDERED" AND THE TARIFF RULE
MAKES NO PROVISION FOR MODIFYING THE BILL OF LADING AFTER DELIVERY HAS
BEEN CONSUMMATED. THE CASE OF CAMPBELL "66" EXPRESS, INC. V. UNITED
STATES, 302 F.2D 270 (CT. CL. 1962), HELD THAT SUBSTANTIAL COMPLIANCE
WITH THE TARIFF PROVISION REQUIRES AT THE VERY LEAST A TIMELY,
CONTEMPORANEOUS STATEMENT OF THE REQUEST FOR EXCLUSIVE USE OF VEHICLE.
WHILE P.I.E. SEEKS TO APPLY THE CAMPBELL "66" RULE TO THE INSTANT CASE,
THE ANALOGY IS WITHOUT MERIT. HERE WE ARE NOT DEALING WITH THE RIGIDITY
OF AN EXCLUSIVE USE TARIFF RULE WHICH CANNOT BE WAIVED, BUT WITH THE
BROADER CONFINES OF A DOCTRINE SOMEWHAT RESPONSIVE TO THE EQUITIES OF A
SITUATION. WHERE THE CARRIER IS NOT PREJUDICED BY THE OMISSION OF
CROSS-REFERENCES, THERE IS NO NEED TO EXALT FORM OVER SUBSTANCE. THE
FACT THAT A P.I.E. REPRESENTATIVE SIGNED THE BILL OF LADING CORRECTION
NOTICE SOME 14 MONTHS AFTER RECEIPT OF THE SHIPMENT DOES NOT NEGATE ITS
IMPORT - IT STILL REFLECTS P.I.E.'S ACKNOWLEDGMENT THAT P.I.E. WAS AWARE
THAT THE SHIPMENT WAS A LARGER VOLUME SHIPMENT. THAT KNOWLEDGE
PRECLUDES ANY P.I.E. CLAIM THAT IT WAS PREJUDICED. ACCORDINGLY, IN THE
ABSENCE OF A SPECIFIC TARIFF MANDATING SUCH PERFUNCTORY COMPLIANCE, WE
REJECT THE MECHANICAL RESULT OF A CAMPBELL "66"-TYPE ANALYSIS.
P.I.E. FINALLY ARGUES THAT THE SHIPPER IS BOUND BY DEPARTMENT OF
DEFENSE REGULATIONS GOVERNING USE OF THE GOVERNMENT BILL OF LADING FOR
SHIPMENTS REQUIRING MORE THAN ONE UNIT OF TRANSPORTATION EQUIPMENT.
DSAR 4500.3, PARAGRAPH 214013, PROVIDES, IN PERTINENT PART:
"A. ONE BILL OF LADING. WHEN A SHIPMENT REQUIRING THE USE OF MORE
THAN ONE UNIT OF TRANSPORTATION EQUIPMENT IS TENDERED TO A CARRIER AT
ONE TIME AS AVAILABLE FOR TRANSPORTATION AND THE NECESSARY INFORMATION
SUCH AS RECEIPT BY CARRIER, CERTIFICATE OF DELIVERY BY CONSIGNEE, AND
OTHER DATA, CAN BE SHOWN ON A SINGLE BILL OF LADING, ONLY ONE BILL OF
LADING WILL BE ISSUED FOR THE ENTIRE SHIPMENT. THE NUMBER OF EACH UNIT
OF EQUIPMENT AND THE QUANTITY OF FREIGHT LOADED IN OR ON EACH UNIT MUST
BE SHOWN ON THE BILL OF LADING.
B. MORE THAN ONE BILL OF LADING. WHEN A VOLUME SHIPMENT REQUIRING
THE USE OF MORE THAN ONE UNIT OF TRANSPORTATION EQUIPMENT IS TENDERED TO
A CARRIER AT ONE TIME AS AVAILABLE FOR TRANSPORTATION, AND MORE THAN ONE
BILL OF LADING IS REQUIRED TO PROVIDE THE NECESSARY EVIDENCE OF RECEIPT
BY THE CARRIER, DELIVERY TO CONSIGNEE, AND OTHER DATA, EACH BILL OF
LADING SO ISSUED WILL, FOR THE PURPOSE OF PROTECTING THE VOLUME RATE
WHICH APPLIES, BE CROSS-REFERENCED TO INDICATE CLEARLY THAT IT COVERS A
PORTION OF A VOLUME SHIPMENT SUBJECT TO THE VOLUME RATE WHICH APPLIES TO
THE ENTIRE SHIPMENT. WHEN PLANNING FOR SHIPMENTS UNDER THE FOREGOING
PROVISIONS THE NUMBER OF CROSS-REFERENCED BILLS OF LADING COVERING A
VOLUME SHIPMENT SHOULD BE HELD TO A MINIMUM; HOWEVER, SUFFICIENT
TONNAGE TO MEET THE VOLUME MINIMUM WEIGHT REQUIREMENTS SHOULD BE
TENDERED AT ONE TIME IN ORDER TO PROTECT THE VOLUME RATE."
THOUGH THE SHIPPER INADVERTENTLY FAILED TO COMPLY WITH THESE
REGULATIONS, THEY ARE ONLY INTERNAL INSTRUCTIONS DESIGNED TO INSURE
UNIFORMITY IN POLICY. AGAIN, SINCE P.I.E. WAS NOT PREJUDICED, FAILURE
TO COMPLY WITH THE REGULATIONS DOES NOT PROVIDE A BASIS FOR ALLOWING
P.I.E.'S CLAIM.
WE FIND THEN THAT POST-DELIVERY CORRECTION NOTICES SIGNED BY THE
CARRIER MAY BE USED TO FURNISH THE REQUIRED AND OMITTED
CROSS-REFERENCING WHEN MULTIPLE BILLS OF LADING ARE USED FOR A VOLUME
SHIPMENT.
IN THESE CIRCUMSTANCES THERE IS NO APPARENT REASON TO REVISE THE TWO
SETTLEMENTS NOR TO REVISE THE OVERCHARGE COLLECTED BY DEDUCTION.
ACCORDINGLY, TCD'S ACTION ON YOUR THREE CLAIMS IS AFFIRMED.
B-180377, AUG 8, 1974
HEADNOTES-UNAVAILABLE
EMPLOYEE WHO WAS IN PROCESS OF PURCHASING RESIDENCE AT OLD DUTY
STATION AT TIME OF TRANSFER AND WHO FORFEITED PART OF DEPOSIT AS
LIQUIDATED DAMAGES FOR DEFAULTING ON CONTRACT OF SALE MAY BE REIMBURSED
FORFEITED DEPOSTI AS MISCELLANEOUS EXPENSE TO EXTENT AUTHORIZED BY
SECTION 3.3 OF BOB CIRCULAR NO. A-56, NOTWITHSTANDING THAT HOUSE WAS NOT
EMPLOYEE'S DWELLING AT THE TIME HE WAS NOTIFIED OF TRANSFER. OCCUPANCY
REQUIREMENT OF SUBSECTION 4.1D OF THE CIRCULAR DOES NOT PRECLUDE PAYMENT
WHERE ACTION OF GOVERNMENT IN TRANSFERRING EMPLOYEE IN ITS OWN INTEREST
PRECLUDES HIS OCCUPANCY.
MARK S. SIEGLER - FORFEITED DEPOSIT AS RESIDENCE SALE EXPENSE: BY
HIS LETTER OF JANUARY 3, 1974, AN AUTHORIZED CERTIFYING OFFICER FOR THE
ENVIRONMENTAL PROTECTION AGENCY (EPA) HAS REQUESTED AN OPINION AS TO
WHETHER THE VOUCHER IN THE AMOUNT OF $600 FOR A FORFEITED DEPOSIT
SUBMITTED BY MARK S. SIEGLER MAY BE CERTIFIED FOR PAYMENT.
ON APRIL 17, 1972, MR. SIEGLER SIGNED AN AGREEMENT OF SALE AND MADE A
$2,000 DEPOSIT ON A NEW HOUSE IN MT. LAUREL, NEW JERSEY, IN THE VICINITY
OF HIS OLD DUTY STATION. ON MAY 23, 1972, BEFORE THE SALE COULD BE
CONSUMMATED, HE RECEIVED NOTICE OF A TRANSFER TO NEW YORK CITY AND
SHORTLY THEREAFTER, ON JUNE 19, 1972, EFFECTED A PERMANENT CHANGE OF
STATION TO THE NEW YORK CITY OFFICE. WHEN THE BUILDER OF THE HOUSE ON
WHICH HE HAD MADE A DEPOSIT IN NEW JERSY RESOLD THE HOUSE, $1,400 OF THE
$2,000 DEPOSIT WAS REFUNDED TO MR. SIEGLER. HE THUS FORFEITED $600 OF
HIS ORIGINAL DEPOSIT AS A RESULT OF THE CANCELLED TRANSACTION.
ACCORDING TO DOCUMENTS IN THE FILE, THE $600 AMOUNT REPRESENTS
ADDITIONAL COSTS OF RESELLING THE PROPERTY AND WAS PAID TO SECURE THE
EMPLOYEE'S RELEASE FROM THE TERMS OF THE CONTRACT OF SALE. THE
CONTRACT, WHICH CONTAINED NO PROVISION EXCUSING BUYER'S PERFORMANCE IN
THE EVENT OF TRANSFER, PROVIDED FOR FORFEITURE OF THE AMOUNT OF DEPOSIT
AS LIQUIDATED DAMAGES IN THE EVENT OF THE BUYER'S DEFAULT.
NOTWITHSTANDING THE $600 AMOUNT APPEARS TO HAVE BEEN FORFEITED AS THE
RESULT OF A VALID LEGAL OBLIGATION, THE CERTIFYING OFFICER QUESTIONS THE
PROPRIETY OF REIMBURSING MR. SIEGLER IN VIEW OF THE FACT THAT HE NEVER
OCCUPIED THE RESIDENCE IN QUESTION, AND BECAUSE THE REGULATIONS DO NOT
EXPRESSLY PROVIDE FOR REIMBURSEMENT OF A FORFEITED DEPOSIT. IN THIS
CONNECTION THE CERTIFYING OFFICER REFERS TO THE REQUIREMENT OF
SUBSECTION 4.1D OF OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO.
A-56, REVISED, AUGUST 17, 1971, IN EFFECT AT THE DATE OF TRANSFER, THAT
THE EMPLOYEE RESIDE IN THE DWELLING. THAT SUBSECTION PROVIDES:
"D. OCCUPANCY REQUIREMENTS. THE DWELLING FOR WHICH REIMBURSEMNT OF
SELLING EXPENSES IS CLAIMED WAS THE EMPLOYEE'S RESIDENCE AT THE TIME HE
WAS FIRST DEFINITELY INFORMED BY COMPETENT AUTHORITY THAT HE IS TO BE
TRANSFERRED TO THE NEW OFFICIAL STATION."
WHILE THE LANGUAGE OF THE ABOVE-QUOTED REGULATION WOULD APPEAR TO
PRECLUDE REIMBURSEMENT FOR THE EXPENSES OF SELLING A HOUSE WHICH THE
EMPLOYEE NEVER OCCUPIED, WE HAVE NEVERTHELESS PERMITTED REIMBURSEMENT
WHERE THE ACTION OF THE GOVERNMENT IN TRANSFERRING AN EMPLOYEE IS ITSELF
RESPONSIBLE FOR THE FACT THAT THE EMPLOYEE WAS NEVER ABLE TO OCCUPY THE
DWELLING. THUS, IN B-168186, NOVEMBER 24, 1969, WHERE AN EMPLOYEE WAS
IN THE PROCESS OF PURCHASING A HOUSE THEN UNDER CONSTRUCTION IN THE
VIRGIN ISLANDS, WHICH AT THE TIME OF HIS TRANSFER HE HAD NEVER OCCUPIED,
WE HELD THAT HE COULD BE REIMBURSED FOR THE COSTS OF SELLING THAT HOUSE.
IN ADDRESSING THE OCCUPANCY REQUIREMENT OF SUBSECTION 4.1D, ABOVE, WE
THERE STATED:
"THE LITERAL LANGUAGE OF SECTION 4.1D OF CIRCULAR NO. A-56 REQUIRNG
THAT THE DWELLING AT THE OLD OFFICIAL STATION BE THE EMPLOYEE'S ACTUAL
RESIDENCE AT THE TIME HE WAS FIRST DEFINITELY INFORMED THAT 'E WAS TO BE
TRANSFERRED TO A NEW OFFICIAL STATION WOULD APPEAR TO PRECLUDE ANY
REIMBUSEMENT OF SELLING EXPENSES OF A HOUSE NOT USED AS RESIDENCE.
HOWEVER, OUR VIEW IS THAT THE REGULATION WAS NOT INTENDED FOR
APPLICATION IN A SITUATION SUCH AS HERE. THAT IS, WHERE THE ACTION OF
THE AGENCY IN TRANSFERRING THE EMPLOYEE BACK OT THE UNITED STATES IN ITS
OWN INTEREST HAS PRECLUDED THE EMPLOYEE FROM ESTABLISHING HIS RESIDENCE
IN THE HOME WHEN COMPLETED. ACCORDINGLY, WE WOULD NOT OBJECT TO
REIMBURSEMENT OF THE SELLING EXPENSES TO THE EXTENT THEY ARE OTHERWISE
PROPER UNDER CIRCULAR NO. A-56."
WE HAVE SIMILARLY HELD IN B-162274, SEPTEMBER 11, 1967, AND IN
B-168818, FEBRUARY 9, 1970.
IN B-177595, MARCH 2, 1973, WE ADDRESSED A SITUATION SIMILAR TO MR.
SIEGLER'S WHERE AN EMPLOYEE ENGAGED IN PURCHASING A RESIDENCE AT HIS OLD
DUTY STATION WAS UNABLE TO CONSUMMATE THE PURCHASE AND FORFEITED A
$1,500 DEPOSIT HE HAD MADE. IN HOLDING THAT THE FORFEITED DEPOSIT COULD
BE REIMBURSED AS A MISCELLANEOUS EXPENSE, WE THERE STATED:
"WE TURN NOW TO THAT PART OF THE CLAIM FOR REIMBUSEMENT OF THE $1,500
WHICH WAS FORFEITED UNDER PARAGRAPH 18 OF THE CONTRACT. IT WAS
INDICATED IN B-170632, SEPTEMBER 10, 1970, THAT A FORFEITED DEPOSIT
INCIDENT TO A TRANSACTION THAT DID NOT QUALIFY AS COMPENSABLE UNDER
SUBSECTION 4.2F OF CIRCULAR NO. A-56 COULD BE REIMBURSED AS A
MISCELLANEOUS EXPENSE UNDER THE PROVISIONS OF SECTION 3.1B OF THE
CIRCULAR WHERE THE CAUSE OF SUCH FORFEITURE WAS THE TRANSFER. IT IS OUR
VIEW THAT THE PRINCIPLE ENUNCIATED IN THAT DECISION IS FOR APPLICATION
HERE. ACCORDINGLY, MR LAWLESS MAY RECIVE RECOMPENSE FOR THE $1,500
CLAIMED, UP TO THE PERMISSIBLE LIMITS OF REIMBURSEMENT UNDER SECTION
3.3B OF CIRCULAR NO. A-56, I.E., NOT TO EXCEED EQUIVALENT OF TWO WEEKS
BASIC COMPENSATION. ***"
IN VIEW OF THE ABOVE-DISCUSSED DECISION, MR. SIEGLER MAY BE
REIMBURSED THE $600 AMOUNT OF THE FORFEITED DEPOSIT AS A MISCELLANEOUS
EXPENSE TO THE EXTENT AUTHORIZED BY SUBSECTION 3.3 OF OMB CIRCULAR NO.
A-56, WHICH PROVIDES:
"3.3 ALLOWABLE AMOUNT. EMPLOYEES ELIGIBLE FOR A MISCELLANEOUS
EXPENSE ALLOWANCE WILL BE PAID AN AMOUNT UNDER 3.3A OR REIMBURSED AN
AMOUNT UNDER 3.3B, BUT NOT BOTH, AS FOLLOWS:
"A. ALLOWANCES IN THE FOLLOWING AMOUNTS WILL BE PAID WITHOUT SUPPORT
OR OTHER DOCUMENTATION OF EXPENSES:
"(1) $100 OR THE EQUIVALENT OF ONE WEEK'S BASIC PAY, WHICHEVER IS THE
LESSER AMOUNT, FOR AN EMPLOYEE WITHOUT IMMEDIATE FAMILY.
"(2) $200 OR THE EQUIVALENT OF TWO WEEKS' BASIC PAY, WHICHEVER IS THE
LESSER AMOUNT, FOR AN EMPLOYEE WITH IMMEDIATE FAMILY.
"B. ALLOWANCES IN EXCESS OF THOSE PROVIDED IN 3.3A, ABOVE, MAY BE
AUTHORIZED OR APPROVED, IF SUPPORTED BY ACCEPTABLE STATEMENTS OF FACT
AND EITHER PAID BILLS OR OTHER ACCEPTABLE EVIDENCE JUSTIFYING THE
AMOUNTS CLAIMED; PROVIDED THAT THE AGGREGATE AMOUNT DOES NOT EXCEED THE
EMPLOYEE'S BASIC PAY AT THE TIME THE EMPLOYEE REPORTED FOR DUTY--FOR ONE
WEEK IF THE EMPLOYEE IS WITHOUT IMMEDIATE FAMILY OR FOR TWO WEEKS IF THE
EMPLOYEE HAS IMMEDIATE FAMILY. IN NO INSTANCE WILL THE ALLOWANCE AMOUNT
EXCEED THE MAXIMUM RATE OF GRADE GS-13 PROVIDED IN 5 U.S.C. 5332 AT THE
TIME THE EMPLOYEE REPORTED FOR DUTY. THE ENTIRE AMOUNT CLAIMED UNDER
THIS 3.3B (INCLUDING THE AMOUNT OTHERWISE PAYABLE WITHOUT SUCH
DOCUMENTATION UNDER 3.3A) MUST BE SUPPORTED AS REQUIRED ABOVE."
B-180561, AUG 8, 1974
HEADNOTES-UNAVAILABLE
EMPLOYEE IS NOT ENTITLED TO ADDITIONAL PAY FOR PERIOD FROM APRIL 11,
1966 TO JULY 3, 1966, ON THE BASIS OF ERRONEOUS REPRESENTATIONS MADE
DURING INTERVIEW THAT SALARY OF POSITION TO WHICH HE WAS APPOINTED WAS
$3,925, WHEN IN FACT THE SALARY WAS $3,814 ON THE APRIL 11, 1966 DATE OF
APPOINTMENT, UNTIL IT WAS RAISED TO $3,925, ON JULY 3, 1966. WHERE
EMPLOYEE HAS RECEIVED SALARY OF POSITION TO WHICH APPOINTED, HE HAS
RECEIVED ALL TO WHICH HE IS ENTITLED UNDER LAW AND ERRONEOUS
REPRESENTATIONS BY GOVERNMENT OFFICIALS CANNOT INCREASE THAT
ENTITLEMENT.
CLIFTON E. MCCOY - CLAIM FOR ADDITIONAL PAY:
THIS ACTION IS UPON THE REQUEST OF MR. CLIFTON E. MCCOY FOR
RECONSIDERATION OF THAT PORTION OF THE ACTION OF OUR TRANSPORTATION AND
CLAIMS DIVISION, BY ITS SETTLEMENT CERTIFICATE DATED OCTOBER 26, 1973,
IN DISALLOWING HIS CLAIM FOR ADDITIONAL COMPENSATION FOR THE PERIOD FROM
APRIL 11, 1966, THROUGH JULY 3, 1966.
MR. MCCOY EXPLAINS THAT WHEN HE WAS INTERVIEWED FOR THE POSITION OF
MESSENGER, GRADE GS-2, STEP 1, AT THE NAVAL SUPPLY CENTER, NORFOLK,
VIRGINIA, HE WAS ADVISED THAT THE PER ANNUM SALARY FOR THAT POSITION WAS
$3,925. IN FACT AT THE DATE OF HIS APPOINTMENT TO THAT POSITION ON
APRIL 11, 1966, THE SALARY FOR THAT POSITION WAS $3,814 PER ANNUM. ON
JULY 3, 1966, THE SALARY RATE FOR THAT POSITION WAS RAISED TO $3,925.
THE EMPLOYEE NOW CLAIMS THE DIFFERENCE BETWEEN THE $3,925 SALARY AND
THE LESSER PER ANNUM SALARY OF $3,814 FOR THE PERIOD BETWEEN APRIL 11,
1966, AND JULY 3, 1966, DURING WHICH HE RECEIVED THE LOWER RATE OF PAY.
IN EXPLAINING THE BASIS FOR HIS CLAIM, MR. MCCOY STATES:
"*** THE ADJUSTMENT OF MY SALARY WAS NOT HANDLED PROPERLY ALSO. I
CAME TO THE APRIL 11, 1966 JOB WITH SIX MONTHS OF PRIOR GOVERNMENT
EXPERIENCE. THIS WAS WITH THE BELIEF THAT THE JOB WOULD ACTUALLY PAY
PER ANNUM EXACTLY WHAT THE OFFICIAL ANNOUNCEMENT STATED THAT IT WOULD
PAY. HOWEVER, NOW I AM TOLD THAT THIS IS NOT THE CASE. THE OFFICIAL WHO
HIRED ME AT THAT TIME, APRIL 11, 1966, SHOULD HAVE EXPLAINED THIS TO ME
AND LET ME DECIDE WHETHER TO ACCEPT THE JOB AT THE LOWER SALARY, $3814,
OR WAIT UNTIL THE OFFICIAL ANNOUNCED SALARY WENT INTO EFFECT, $3925, ON
JULY JULY 3, 1966.
"THEY, THE LOCAL STATION OFFICIALS COULD HAVE WITHHELD THE RESULTS OF
THE INTERVIEW UNTIL THEY WERE READY TO SEND ME THE NOTIFICATION WHEN TO
REPORT. THEY COULD HAVE ALSO INFORMED ME BACK ON THE DATE WHEN THEY
SENT ME THE NOTIFICATION OF ACCEPTANCE THAT SHOULD I DECIDE TO ACCEPT
THE JOB THAT I WOULD HAVE BEEN GIVEN A RETROACTIVE CHECK ON JULY 3, 1966
WHICH WOULD HAVE COVERED THE PERIOD BACK TO APRIL 11, 1966, SINCE THEY
WERE DUTY BOUND TO PAY WHAT THE ANNOUNCEMENT CALLED FOR AND NOT THE
LESSER SALARY. *** THEREFORE SIR, I WAS SHORT CHANGED TWO MONTHS AND
TWENTY TWO DAYS OF $3925 PER ANNUM PAY ***."
WE HAVE REVIEWED THE FILE AND FIND NO INDICATION THAT THE POSITION TO
WHICH THE EMPLOYEE WAS APPOINTED WAS IMPROPERLY PLACED AT A GRADE GS-2,
STEP 1, OR THAT THE SALARY OF $3,814 WAS IMPROPERLY ASCRIBED TO THAT
POSITION AT THE DATE OF HIS APPOINTMENT. WE DO FIND, AS INDICATED BY
THE CLAIMANT, THAT THE ANNOUNCEMENT NO. PH-124-1 TO WHICH CLAIMANT
RESPONDED DID INDICATE THAT THE SALARY FOR THE POSITION WAS $3,925 AND
IS DEVOID OF ANY LANGUAGE MAKING IT CLEAR THAT THAT SALRY WOULD NOT BE
EFFECTIVE UNTIL JULY.
HOWEVER, MR. MCCOY'S ASSERTION THAT HE IS ENTITLED TO THE HIGHER
SALARY AS OF THE DATE OF HIS APPOINTMENT IN VIEW OF HIS HAVING RELIED ON
THE REPRESENTATIONS IN THE ANNOUNCEMENT IS WITHOUT FOUNDATION IN LAW.
IN THE CASE OF LEONARD J. GANSE V. UNITED STATES, 376 F 2D 900 (CT. CL.
1967), THE COURT OF CLAIMS ADDRESSED A SITUATION NOT UNSIMILAR TO THIS
IN WHICH REPRESENTATIONS HAD BEEN MADE TO A PROSPECTIVE EMPLOYEE THAT
THE POSITION FOR WHICH HE WAS BEING INTERVIEWED WAS CLASSIFIED AS A
GRADE GS-16, BUT HIS ACTUAL APPOINTMENT WAS TO A GRADE GS-15 POSITION.
THE PLAINTIFF IN THAT CASE BROUGHT SUIT ON ESSENTIALLY THE SAME BASIS
SET FORTH BY THE CLAIMANT FOR THE DIFFERENCE IN PAY BETWEEN A GRADE
GS-16 AND A GRADE GS-15 SALARY. THERE THE COURT DISCUSSED THE LEGAL
IMPORT OF THE REPRESENTATIONS MADE TO THE PLAINTIFF AS FOLLOWS:
"PLAINTIFF CLAIMS HE IS ENTITLED TO PAY AT THE RATE OF A GRADE 16
POSITION DURING THE ENTIRE PERIOD OF HIS TENURE IN HIS POSITION, BECAUSE
OF THE REPRESENTATIONS MADE TO HIM BY INDIVIDUALS IN THE CIVILIAN
PERSONNEL DIVISION OF THE ARMY, WHO HAD INTERVIEWED HIM PRIOR TO HIS
APPOINTMENT (TO THE EFFECT THAT THE POSITION WHICH HE WAS ABOUT TO
ACCEPT AND TO WHICH HE WAS ABOUT TO BE APPOINTED, WOULD IN TIME BE
ELEVATED TO GRADE 16). THE NATURE OF THE REPRESENTATIONS, NOT BEING
MATERIAL TO A DETERMINATION OF THE LEGAL ISSUE HERE, WILL NOT BE
ELABORATED, EXCEPT TO SAY THAT THEY INVOLVED MATTERS OF A POLITICAL
NATURE. IN SUPPORT OF HIS POSITION ON THIS ISSUE, THE PLAINTIFF CITES A
NUMBER OF CONTRACT CASES, ALL OF WHICH ARE INAPPOSITE. IT IS A
WELL-SETTLED PRINCIPLE OF LAW THAT FEDERAL GOVERNMENT EMPLOYEES ARE
ENTITLED ONLY TO THE SALARIES OF POSITIONS TO WHICH THEY ARE APPOINTED,
REGARDLESS OF THE DUTIES THEY ACTUALLY PERFORM. PRICE V. UNITED
STATES, 112 CT. CL. 198, 200 80 F. SUPP. 542, 543 (1948) AND CASES
CITED. THE PLAINTIFF WAS APPOINTED TO, SERVED IN AND WAS PAID FOR
SERVICES OF A POSITION IN GRADE 15. WHERE THE PLAINTIFF HAS RECEIVED
THE SALARY OF THE OFFICE TO WHICH HE WAS APPOINTED, HE HAS RECEIVED ALL
TO WHICH HE IS ENTITLED UNDER THE LAW. PRICE, SUPRA."
AS INDICATED ABOVE, WHERE AN EMPLOYEE HAS RECEIVED THE SALARY OF THE
POSITION TO WHICH HE HAS BEEN APPOINTED, HE HAS RECEIVED ALL TO WHICH HE
IS ENTITLED BY LAW.
WHILE WE CONCUR IN THE CLAIMANT'S FEELING THAT THE STATEMENT OF
SALARY CONTAINED IN THE ANNOUNCEMENT WAS MISLEADING AND THAT RECRUITMENT
OFFICIALS SHOULD HAVE MADE IT CLEAR THAT THE SALARY OF $3,925 WOULD NOT
BECOME EFFECTIVE UNTIL THE FIRST DAY OF THE FIRST PAY PERIOD ON OR AFTER
JULY 1, 1966, THAT FACT DOES NOT PROVIDE A BASIS FOR RETROACTIVE PAYMENT
OF SALARY IN THIS INSTANCE. A GOVERNMENT AGENT CANNOT, BY NEGLIGENTLY
MISREPRESENTING THE EXTENT OF THE GOVERNMENT'S OBLIGATION, INCREASE THAT
OBLIGATION BEYOND THAT ESTABLISHED BY STATUTE OR REGULATIONS. THE WELL
ESTABLISHED RULE OF LAW IN THIS REGARD IS THAT ANYONE ENTERING INTO AN
ARRANGEMENT WITH THE GOVERNMENT TAKES THE RISK OF HAVING ASCERTAINED
THAT THE AGENT WITH WHOM HE DEALS AND WHO PURPORTS TO ACT FOR THE
GOVERNMENT STAYS WITHIN THE LIMITS OF HIS AUTHORITY, INASMUCH AS THE
GOVERNMENT CAN BE NEITHER BOUND NOR ESTOPPED BY THE UNAUTHORIZED ACTS OF
ITS AGENTS. HART V. UNITED STATES, 95 U.S. 316 (1877); PINE RIVER
LOGGING CO. V. UNITED STATES, 186 U.S. 279 (1902); UTAH POWER AND LIGHT
CO. V. UNITED STATES, 243 U.S. 389 (1917); SUTTON, TRUSTEE OF ESTATE OF
HILLSBORO DREDGING COMPANY, BANKRUPT V. UNITED STATES, 256 U.S. 575
(1921); WILBER NATIONAL BANK OF ONEONTA, ADMINISTRATOR V. UNITED
STATES, 294 U.S. 120 (1935); FEDERAL CROP INSURANCE CORPORATION V.
MERRILL, 332 U.S. 380 (1947).
INASMUCH AS THE SALARY FOR THE POSITION WHICH MR. MCCOY HELD WAS
PROPERLY ESTABLISHED IN ACCORDANCE WITH THE UNITED STATES CIVIL SERVICE
COMMISSION'S SALARY TABLE NO. 44, DATED JANUARY 1966, HIS CLAIM FOR
AMOUNTS IN ADDITION TO THAT IS DENIED.
B-180773, AUG 8, 1974
HEADNOTES-UNAVAILABLE
EMPLOYEE ASSIGNED TEMPORARY DUTY AT LOCATION 27 MILES FROM HIS
RESIDENCE MAY BE REIMBURSED ROUND TRIP MILEAGE WHERE HIS WIFE DROVE HIM
TO THE TEMPORARY DUTY LOCATION AND THEN RETURNED HOME SINCE EMPLOYEE WAS
REQUIRED TO REMAIN AT TDY POINT AND COULD NOT RETURN HOME AND IT IS
SHOWN THAT ROUND-TRIP MILEAGE REIMBURSEMENT IS LESS THAN COST OF COMMON
CARRIER ONE-WAY TO DY POINT. WHILE IT IS RECOGNIZED THAT SAVINGS TO THE
GOVERNMENT DO NOT AUTOMATICALLY JUSTIFY REIMBURSEMTNT OF TRAVEL
EXPENSES, UNDER CIRCUMSTANCES AND IN LIGHT OF ALTERNATIVES AVAILABLE,
ACTIONS OF TRAVELER WERE REASONABLE.
ALBERT J. BERTI - MILEAGE REIMBURSEMENT:
THIS MATTER INVOLVES A REQUEST FROM AN AUTHORIZED CERTIFYING OFFICER
IN THE INTERNAL REVENUE SERVICE FOR A DECISION AS TO WHETHER A RECLAIM
VOUCHER IN THE AMOUNT OF $11.88 SUBMITTED BY MR. ALBERT J. BERTI, AN
EMPLOYEE OF THE INTERNAL REVENUE SERVICE, AMY BE CERTIFIED FOR PAYMENT.
THE RECORD INDICATES THAT MR. BERTI WAS ASSIGNED TO ATTEND AN
EXECUTIVE SEMINAR AT KINGS POINT, NEW YORK, DURING THE PERIOD FROM
SEPTEMBER 9 THROUGH 21, 1973. MR. BERTI DEPARTED FROM HIS RESIDENCE IN
HUNTINGTON, NEW YORK, ON SEPTEMBER 9, 1973, AND WAS DRIVEN TO KINGS
POINT IN HIS PRIVATELY OWNED AUTHOMOBILE BY HIS WIFE. THE ONE WAY
MILEAGE FROM MR. BERTI'S RESIDENCE TO KINGS POINT IS 27 MILES.
HOWEVER, SINCE MRS. BERTI RETURNED HOME AFTER LEAVING HER HUSBAND IN
KINGS POINT, A CLAIM WAS MADE FOR ROUND TRIP MILEAGE OF 54 MILES. MR.
BERTI ALSO CLAIMED ROUND TRIP MILEAGE BETWEEN HIS RESIDENCE AND KINGS
POINT FOR TRAVEL ON THE DATES OF SEPTEMBER 14, 16 AND 21 WHEN MR.S BERTI
PICKED HIM UP IN KINGS POINT FOR THE WEEKEND, RETURNED HIM TO KINGS
POINT FOR THE SECOND WEEK OF THE SEMINAR, AND THEN PICKED HIM UP AGAIN
AT THE SEMINAR'S CONCLUSION.
WHEN MR. BERTI SUBMITTED HIS ORIGINAL TRAVEL VOUCHER HIS AGENCY
DISALLOWED THE MILEAGE CLAIMS FOR ONE-HALF OF EACH ROUND TRIP
REPRESENTING THAT PART OF EACH TRIP THAT MRS. BERTI EITHER RETURNED BY
HERSELF TO HER RESIDENCE OR DROVE TO KINGS POINT TO MEET MR. BERTI.
THOSE DISALLOWED AMOUNTS ARE BEING RECLAIMED BY MR. BERTI.
THE INTERNAL REVENUE SERVICE POINTS OUT THAT SECTION 1-4.2C OF THE
FEDERAL TRAVEL REULATIONS AUTHORIZES MILEAGE REIMBUSEMENT FOR A ROUND
TRIP BY A PRIVATELY OWNED AUTOMOBILE FROM A RESIDENCE OR A PLACE OF
BUSINESS TO A TERMINAL OR FROM A TERMINAL TO A RESIDENCE OR PLACE OF
BUSINESS IN LIEU OF A TAXICAB WHEN THE AMOUNT OF REIMBURSEMENT FOR THE
ROUND TRIP DOES NOT EXCEED THE TAXICAB FARE. IT IS STATED THAT ON THE
BASIS OF THAT REGULATION MR. BERTI'S CLAIM WAS DISALLOWED SINCE KINGS
POINT WAS A TEMPORARY DUTY POINT AND NOT A TERMINAL OR DEPOT WITHIN THE
MEANING OF THE REGULATIONS. FURTHER, IT IS STATED THAT WHILE MR.
BERTI'S CONTENTION THAT HAD HE USED COMMON CARRIER TO TRAVEL TO AND FROM
KINGS POINT THE COST FOR ONE WAY TRANSPORTATION WOULD HAVE EXCEEDED HIS
ROUND TRIP MILEAGE CLAIM CANNOT BE DISPUTED, IT IS FELT THAT TRAVEL
EXPENSES CANNOT AUTOMATICALLY BECOME REIMBUSABLE BY VIRTUE OF A
"CALCULATED" SAVINGS TO THE GOVERNMENT. IT IS ALSO FELT THAT ALLOWANCE
OF MR. BERTI'S CLAIM WOULD RAISE QUESTIONS OF POLICY IN FUTURE CASES
SUCH AS WHETHER THERE SHOULD BE A DISTANCE LIMITATION IN MAKING THE
COMPARISON BETWEEN THE COST OF THE ROUND TRIP MILEAGE AND THE COST OF
COMMON CARRIER AND WHICH MODES OF COMMON CARRIER TRANSPORTATION SHOULD
BE USED IN MAKING SUCH COMPARISONS.
THE SECTION OF THE FEDERAL TRAVEL REGULATIONS TO WHICH THE INTERNAL
REVENUE SERVICE REFERS, SECTION 1-4.2C AUTHORIZES MILEAGE REIMBURSEMENT
FOR A ROUND TRIP BY PRIVATELY OWNED VEHICLE TO OR FROM A COMMON CARRIER
TERMINAL WHEN SUCH REIMBURSEMENT DOES NOT EXCEED THE TAXICAB FARE
ALLOWABLE FOR A ONE-WAY TRIP BETWEEN THE APPLICABLE POINTS. ALTHOUGH
THERE ARE NO SIMILAR PROVISIONS IN THE REGULATIONS FOR REIMBURSEMENT OF
ROUND TRIP MILEAGE BETWEEN A RESIDENCE AND A TEMPORARY DUTY POINT,
GENERALLY TEMPORARY DUTY SIMILAR TO THAT INVOLVED HEREIN, WHERE THE
EMPLOYEE REMAINS AT THE TEMPORARY DUTY LOCATION AND DOES NOT RETURN TO
HIS RESIDENCE EACH NIGHT, INVOLVES DISTANCES MUCH GREATER THAN THE 27
MILES INVOLVED IN THIS CASE.
IN MR. BERTI'S CASE THE NATURE OF THE SEMINAR WAS SUCH THAT MR.
BERTI WAS REQUIRED TO REMAIN AT KINGS POINT DURING THE WEEK AND COULD
NOT RETURN HOME EACH NIGHT. IN ORDER TO TRAVEL TO THAT POINT HE HAD
GENERALLY THREE ALTERNATIVES AVAILABLE TO HIM: HE COULD HAVE TRAVELED
TO KINGS POINT BY COMMON CARRIER; DRIVEN HIS PRIVATELY OWNED AUTOMOBILE
HIMSELF TO KINGS POINT AND KEPT IT THERE DURING THE WEEK, THUS
PRECLUDING HIS FAMILY FROM USING IT; OR, AS HE DID, HE COULD HAVE HAD A
MEMBER OF HIS FAMILY DRIVE HIM TO KINGS POINT AND RETURN HOME.
WE BELIEVE THAT THE CHOICE MADE BY MR. BERTI WAS LOGICAL AND PRUDENT
UNDER THE CIRCUMSTANCES AND NOTE THAT PAYMENT OF HIS CLAIM FOR ROUND
TRIP MILEAGE WOULD COST THE GOVERNMENT LESS THAN IF MR. BERTI HAD
TRAVELED BY COMMON CARRIER. AND WHILE WE AGREE WITH THEINTERNAL REVENUE
SERVICE THAT TRAVEL EXPENSES CANNOT AUTOMATICALLY BECOME REIMBURSABLE BY
VIRTUE OF A CALCULATED SAVINGS TO THE GOVERNMENT, WE BELIEVE THAT
INHERENT IN THE REGULATIONS AND IN THE AUTHORITY FOR VARIOUS MODES OF
TRAVEL (SUCH AS IN SECTION 1-4.2C) IS A RECOGNITION THAT NOT ONLY MAY A
MODE OF TRANSPORTATION CHOSEN BY A TRAVELER BE MORE CONVENIENT FOR HIM
(E.G. A CHOICE TO USE A PRIVATELY OWNED VEHICLE TO TRAVEL TO A COMMON
CARRIER TERMINAL RATHER THAN A TAXICAB), SUCH TRAVEL MAY RESULT IN A
SAVINGS TO THE GOVERNMENT THEREFORE, UNDER THE CIRCUMSTANCES IN THIS
CASE, AND IN LIGHT OF THE FACT THAT TRAVEL TO THE TEMPORARY DUTY POINT
BY PRIVATELY OWNED VEHICLE WAS AUTHORIZED, WE WOULD HAVE NO OBJECTION TO
REIMBURSING MR. BERTI FOR THE ROUND TRIP MILEAGE CLAIMED.
AS TO THE INTERNAL REVENUE SERVICE'S QUESTIONS REGARDING FUTURE
APPLICATION OF SUCH RULE, WE DO NOT BELIEVE THAT A FLAT DISTANCE
LIMITATION SHOULD BE PLACED ON SUCH REIMBURSEMENT ALTHOUGH GENERALLY WE
IMAGINE THAT IT WOULD ONLY BE APPLICABLE IN SITUATIONS SUCH AS THE
INSTANT CASE WHERE THE TEMPORARY DUTY POINT IS A RELATIVELY SHORT
DISTANCE AWAY AND THE EMPLOYEE CANNOT RETURN TO HIS RESIDENCE ON A DAILY
BASIS. EACH SITUATION MUST BE REVIEWED ON ITS OWN MERITS AND THE
FACTORS CURRENTLY APPLIED IN AUTHORIZING TEMPORARY DUTY TRAVEL,
INCLUDING COST, CONVENIENCE TO THE GOVERNMENT AND CONVENIENCE TO THE
TRAVELER, TAKEN INTO ACCOUNT. MILEAGE REIMBURSEMENT WOULD, OF COURSE,
BE LIMITED TO ONE-WAY COST OF TRANSPORTATION BY COMMON CARRIER. THE
MODE OF COMMON CARRIER TRANSPORTATION USED FOR COMPARATIVE PURPOSES
WOULD BE THAT MODE WHICH WOULD BE AUTHORIZED FOR USE BY AN EMPLOYEE WHO
DID NOT DRIVE AND WHO WAS TRAVELING TO THE SAME TEMPORARY DUTY POINT.
B-181170, AUG 8, 1974
HEADNOTES-UNAVAILABLE
CONTRACTING OFFICER'S REJECTION OF TECHNICAL PROPOSAL TO FURNISH
FEASIBILITY MODELS OF SENSOR INBAND RADIO RELAY EQUIPMENT AS NOT WITHIN
COMPETITIVE RANGE FOR NEGOTIATION WAS PROPER EXERCISE OF DISCRETION
SINCE TECHNICAL EVALUATION SHOWED PROPOSAL WANTING IN AREAS OF
ENGINEERING APPROACH, COMPLETENESS, AND UNDERSTANDING, AND THERE IS NO
EVIDENCE OF RECORD THAT JUDGEMENT OF ARMY'S TECHNICAL EXPERTS WAS
UNREASONABLE. THEREFORE, GAO SEES NO NEED TO OBTAIN INDEPENTDENT
TECHNICAL OPINION AS REQUESTED BY PROTESTER.
THIS CASE INVOLVES THE LEGAL EFFICACY OF THE ARMY'S REJECTION OF A
HONEYWELL, INC., TECHNICAL PROPOSAL AS NOT WITHIN THE COMPETITIVE RANGE.
THE HONEYWELL PROPOSAL WAS SUBMITTED TO THE U.S. ARMY ELECTRONICS
COMMAND (ECOM) IN RESPONSE TO REQUEST FOR QUOTATIONS(RFQ)
DAAB07-74Q-0265, WHICH SOLICITED PROPOSALS FOR THREE EXPLORATORY
DEVELOPMENT (FEASIBILITY) MODELS OF A SENSOR INBAND RADIO RELAY (SIRR)
AND ANCILLARY ITEMS. OF THE SIX PROPOSALS RECEIVED BY ECOM, FOUR WERE
JUDGED ACCEPTABLE FOR FURTHER NEGOTIATION AFTER A TECHNICAL EVALUATION
WHILE TWO, INCLUDING HONEYWELL'S WERE FOUND TO BE UNACCEPTABLE AND SO
TECHNICALLY INFERIOR THAT THEY COULD NOT BE MADE ACCEPTABLE THROUGH
NEGOTIATIONS. ECOM NOTIFIED HONEYWELL BY LETTER OF MARCH 19, 1974, THAT
ITS PROPOSAL WAS UNACCEPTABLE IN THE AREAS OF "ANTENNA BASED ISOLATION
TECHNIQUES PROJECTED SENSITIVITY AND TRANSMITTER STABILITY RELATIVE TO
THE INCOMING SIGNAL," AND THAT NO FURTHER NEGOTIATIONS WITH HONEYWELL
WOULD BE CONDUCTED. HONEYWELL THEN REQUESTED AND RECEIVED A DEBRIEFING,
FOLLOWING WHICH ITS PROTEST WAS FILED WITH THIS OFFICE.
THE SOLE ISSUE RAISED BY THIS PROTEST IS WHETHER ECOM'S EVALUATION OF
THE HONEYWELL PROPOSAL WAS TECHNICALLY VALID AND CONSISTENT WITH THE
SOLICITATION PROVISIONS. HONEYWELL CONTENDS THAT ITS PROPOSAL WAS
TECHNICALLY ADEQUATE AND MET ALL REQUIREMENTS OF THE RFQ'S TECHNICAL
GUIDELINES, AND THAT ECOM WAS "PREJUDICED IN FAVOR OF AN APPROACH NOT
SPECIFICALLY DEFINED IN THE TECHNICAL GUIDELINES." THE ARMY INSISTS THAT
HONEYWELL'S PROPOSAL IS TECHNICALLY UNACCEPTABLE AND CLAIMS THAT IN ANY
EVENT IT S DECISION IN THIS REGARD IS CLEARLY NOT ARBITRARY AND IS A
PROPER EXERCISE OF ADMINISTRATIVE DISCRETION.
THE ORIGINAL TECHNICAL EVALUATION TEAM REPORT CONTAINED THE FOLLOWING
NARRATIVE WITH RESPECT TO THE HONEYWELL TECHNICAL PROPOSAL:
"(1) HONEYWELL. IN GENERAL, THE PROPOSAL SUBMITTED BY HONEYWELL
DEMONSTRATES A FAIR UNDERSTANDING OF THE TECHNICAL FEATURES INVOLVED IN
THE SOLUTION OF THE SIRR PROBLEM. BUT, BECAUSE OF THEIR ANTENNA BASED
ISOLATION TECHNIQUE, HONEYWELL'S PROPOSAL MUST BE CONSIDERED
UNACCEPTABLE.
"THE PROPOSED ANTENNA IS AN INVERTED DUAL MONOPOLE WITH A COMMON
GROUND PLANE, 71" IN DIAMETER AND 48" IN HEIGHT WHEN 'DEPLOYED'. SUCH
AN ANTENNA IS JUDGED TO BE NOT ONLY INCOMPATIBLE WITH THE ULTIMATE SIZE
OBJECTIVES AND PACKAGING RESTRICTIONS OF THE SIRR BUT, IN AS MUCH AS
THEIR ISOLATION TECHNIQUE DEPENDS ON THIS ANTENNA, NEITHER CAN IT BE
SUBSTITUTED WITH A MORE SUITABLE TYPE. THE 26 DBOF ANTENNA ISOLATION
WHICH IS PLANNED ALSO LEAVES A RATHER STRONG TRANSMITTER LEAKAGE SIGNAL
INTO THE RECEIVER FRONT END, A HIGH LEVEL MIXER (NOISE FIGURE: 8 DB, NO
PREAMP IS USED), AND A HIGH POWER PROBLEM HONEYWELL PROPOSES TO SWITCH
FROM A QUIESCENT-LOW LEVEL DRIVE TO HIGH LEVEL DRIME ONLY WHEN THE RELAY
TRANSMITTER IS ACTIVATED. *** HOWEVER, HAVING TO RESORT TO SUCH
COMPENSATION IS INDICATIVE OF AN UNSOUND APPROACH AND SIGNIFICANTLY
RAISES THE RISK OF UNACCEPTABLE OR UNDESIRABLE PERFORMANCE IN SUCH OTHER
AREAS AS SENSITIVITY, 2NTERMODULATION, AND POWER CONSUMPTION. THE
PROJECTED SENSITIVITY, -406.7 DBM, IS ALREADY BELOW THE REQUIRED -110
DBM.
"NO DISCUSSION IS PROVIDED CONCERNING THE EFFECT OF TRANSMITTED NOISE
IN THE RECEIVER CHANNEL AND THE NEED TO ELIMINATE OR MINIMIZE SAME.
"THE TRANSMITTER STABILITY OF +5 PPM IS RELATIVE TO THE INCOMING
SIGNAL AND AS SUCH IS UNACCEPTABLE. THIS REQUIRES A BANDWIDTH OF 30 KHZ
TO RECEIVE THE RELAYED DATA AND HENCE IS INCOMPATIBLE WITH THE PHASE III
RECEIVER TO USED DURING TEST. FURTHER, THE RECEIVER LOCAL OSCILLATOR
STABILITY WAS NOT DISCUSSED OR TAKEN INTO ACCOUNT IN DETERMINING THE
NECESSARY BANDWIDTH.
THE PROPOSED TECHNIQUE OF SWITCHING AMONG FOUR OSCILLATORS AT A 4 KH
RATE ALSO IS JUDGED A GIGH RISK AREA. NO DISCUSSION IS PROVIDED TO
JUSTIFY THE SELECTED SWITCHING RATE AGAINST THE REQUIRED OSCILLATOR
TURN-ON TIME OR SIGNAL DETECTION TIME. DISREGARDING SIGNAL DETECTION,
TWO HUNDRED AND FIFTY MICROSECONDS IS CONSIDERED AN INSUFFICIENT PERIOD
OF TIME FOR THE OSCILLATOR TO ACHIEVE ITS NOMINAL FREQUENCY STABILITY
AND POWER LEVEL WHEN STARTING FROM A OFF STATE."
IN RESPONSE TO HONEYWELL'S PROTEST, A MUCH MORE DETAILED TECHNICAL
DISCUSSION OF HONEYWELL'S PROPOSAL WAS PREPARED AND INCLUDED WITH THE
ARMY'S ADMINISTRATIVE REPORT. THIS DISCUSSION REITERATED THE ECOM
POSITION THAT THE PROPOSAL WAS UNACCEPTABLE AND THAT NOTHING SHORT OF A
"COMPLETELY NEW DESIGN" COULD MEET THE SOLICITATION REQUIREMENTS.
HONEYWELL, IN TURN, RESPONDED WITH A DETAILED REBUTTAL OF THAT
DISCUSSION, CLAIMING THAT IT HAD PROPOSED A SOLUTION BASED ON THE
TECHNICAL GUIDELINES WHICH, WITH PROPER DEVELOPMENT, WAS "COMPATIBLE
WITH LONG-RANGE PROGRAM OBJECTIVES," AND INVITED AN INDEPENDENT
TECHNICAL REVIEW OF ITS PROPOSAL TO VERIFY ITS CLAIM OF TECHNICAL
ACCEPTABILITY.
THE RFQ IDENTIFIED SEVERAL FACTORS FOR THE EVALUATION OF TECHNICAL
PROPOSALS. THE MOST IMPORTANT FACTOR WAS STATED TO BE ENGINEERING
APPROACH, WHICH ENCOMPASSED THE EXTENT TO WHICH PROPOSALS MET
REQUIREMENTS OF THE TECHNICAL GUIDELINES, THE FEASIBILITY OF THE
PROPOSED APPROACHES, UNDERSTANDING OF PROBLEMS, AND COMPLETENESS. THESE
LAST THREE SUBFACTORS WERE EXPLAINED AS FOLLOWS:
"(B) FEASIBILITY OF APPROACH: SOUNDNESS OF APPROACH AND THE EXTENT
TO WHICH SUCCESSFUL PERFORMANCE IS CONTINGENT UPON UNTRIED AND UNPROVEN
DEVICES AND TECHNIQUES WHICH MAY REQUIRE EXCESSIVE DEVELOPMENT.
"(C) UNDERSTANDING OF PROBLEMS: EXTENT OF WHICH THE PROPOSAL
DEMONSTRATES CLEAR UNDERSTANDING OF ALL TECHNICAL FEATURES INVOLVED IN
THE SOLUTION OF THE PROBLEMS. QUOTERS MUST IDENTIFY TECHNICAL
UNCERTAINTIES AND PROVIDE SPECIFIC PROPOSALS FOR THEIR RESOUTION
"(D) COMPLETENESS: EXTENT TO WHICH TECHNICAL REQUIREMENTS HAVE BEEN
CONSIDERED AND ARE DEFINED AND SATISFIED ***."
THE ARMY REPORTS THAT AT THE APRIL 24TH DEBRIEFING A "COMPROMISE" WAS
REACHED WITH RESPECT TO THE STABILITY AREA OF HONEYWELL'S PROPOSAL, BUT
THAT IT CONTINUED TO REGARD AS UNACCEPTABLE THE ISOLATION SENSITIVITY
AREA OF THE PROPOSAL. ACCORDING TO THE ARMY, SOLUTIONS TO TWO PROBLEMS
WERE PARAMOUNT FOR A PROPOSAL TO THE ACCEPTABLE. HONEYWELL'S PROPOSED
TECHNIQUE FOR SOLVING THE FIRST PROBLEM WAS REGARDED AS A STRONG POINT.
HOWEVER, THE ARMY'S TECHNICAL EVALUATORS FOUND THAT THE HONEYWELL
PROPOSAL FAILED TO RECOGNIZE THE SECOND AND "MORE DIFFICULT" PROBLEM OF
PREVENTING "DESENSITIZATION AND HANG-UP CAUSED BY TRANSMITTER NOISE
AND/OR SPURIOUS OUTPUTS WHICH FALL AT THE RECEIVE FREQUENCY." THE
EVALUATORS BELIEVED THAT HONEYWELL'S PROPOSED 26 DBOF ISOLATION WAS
"BOTH INSUFFICIENT AND OF QUESTIONABLE STABILITY *** TO PERMIT REAL-TIME
OPERATION WITHOUT DESENSITIZING THE RECEIVER AND GENERATING A HANG-UP
CONDITION" AND THAT ANY APPROACH SUCH AS HONEYWELL'S WHICH DID NOT SOLVE
THE NOISE/SPUR PROBLEM WAS UNACCEPTABLE. THE EVALUATORS ALSO CONCLUDED
HONEYWELL'S APPROACH WOULD NOT PROVIDE THE DESIGN GOAL OF 135 DBOR THE
MINIMUM 120 DBSPECIFIED IN THE TECHNICAL GUIDELINES. THIS CONCLUSION
WAS SUPPORTED BY A DETAILED ANALYSIS BASED ON HONEYWELL'S OWN FIGURES.
WITH REGARD TO THE STATUTORY REQUIREMENT FOR NEGOTIATIONS WITH
OFFERORS WITHIN THE COMPETITIVE RANGE, 10 U.S.C. 2304(G), WE HAVE OFTEN
STATED THAT THE DETERMINATION OF COMPETITIVE WILL NOT BE DISTURBED IN
THE ABSENCE OF A CLEAR SHOWING THAT SUCH DETERMINATION WAS AN ARBITRARY
ABUSE OF DISCRETION. 48 COMP. GEN. 314 (1968); B-176077(5), JANUARY
26, 1973. THIS IS PARTICULARLY THE CASE WHERE THE PROCUREMENT INVOLVES
EQUIPMENT OF A HIGHLY TECHNICAL OR SCIENTIFIC NATURE AND THE
DETERMINATION MUST BE BASED ON EXPERT TECHNICAL OPINION. 46 COMP. GEN.
606 (1967). HERE, ALTHOUGH HONEYWELL HAS PROVIDED DETAILED TECHNICAL
ARGUMENTS IN SUPPORT OF ITS PROTEST, WE ARE UNABLE TO CONCLUDE THAT THE
CONTRACTING AGENCY ABUSED ITS DISCRETION IN FINDING HONEYWELL'S PROPOSAL
UNACCEPTABLE. IT APPEARS TO US THAT THE PROPOSAL WAS EVALUATED IN
ACCORDANCE WITH THE SPECIFICATIONS AND THE STATED EVALUATION CRITERIA
AND WAS FOUND TO BE WANTING IN TECHNICAL APPROACH, UNDERSTANDING, AND
COMPLETENESS. ALTHOUGH HONEYWELL ASSERTS THAT IT WAS NOT REQUIRED TO
PROVIDE A DETAILED DESIGN IN ITS PROPOSAL, BUT ONLY A DEMONSTRATION THAT
ITS PROPOSAL WAS "TECHNICALLY REASONABLE," WE THINK IT IS CLEAR THAT THE
ARMY DID NOT VIEW THE PROPOSAL AS TECHNICALLY REASONABLE BUT INSTEAD AS
ONE THAT PRESENTED A SIGNIFICANT RISK THAT THE DESIRED OBJECTIVES WOULD
NOT BE ATTAINED. WHILE HONEYWELL OBVIOUSLY DOES NOT AGREE WITH THAT
VIEW, THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE REJECTION OF
HONEYSELL'S PROPOSAL WAS THE RESULT OF ANYTHING OTHER THAN THE
REASONABLE JUDGMENT OF THE ARMY'S TECHNICAL EXPERTS. ALTHOUGH IT IS
POSSIBLE THAT SOME OTHER TECHNICAL EXPERTS MAY DISAGREE WITH THE ARMY,
WE DO NOT BELIEVE IT IS APPROPRIATE FOR THIS OFFICE TO QUESTION THE
ARMY'S TECHNICAL JUDGMENT WHEN THAT JUDGMENT HAS A REASONABLE BASIS,
MERELY BECAUSE THERE MAY BE DIVERGENT TECHNICAL OPINIONS AS TO THE
VIABILITY OF A PROPOSED APPROACH. ACCORDINGLY, WE SEE NO NEED TO OBTAIN
AN INDEPENDENT TECHNICAL OPINION AS SUGGESTED BY HONEYWELL AND WE ARE
UNABLE TO ACCEPT HONEYWELL'S CLAIM THAT ITS PROPOSAL SHOULD HAVE BEEN
REGARDED AS ACCEPTABLE.
FOR THE FOREGOING REASONS, THE PROTEST IS DENIED.
B-164337, AUG 7, 1974
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
MR. L. M. PELLERZI
WE REFER TO YOUR LETTER OF JANUARY 18, 1974, REFERNCE 8/6-217 &
L-2342, AND TO YOUR CONTINUING INTEREST IN THE DISPOSITION OF CLAIMS
SUBMITTED TO OUR TRANSPORTATION AND CLAIMS DIVISION PURSUANT TO THE
HOLDING BY THE COURT OF CLAIMS IN BATES ET AL. V. UNITED STATES, 196 CT.
CL. 362 (1971).
ENCLOSED IS A COPY OF OUR DECISION B-176580 OF THIS DATE DISALLOWING
TWO CLAIMS EXEMPLARY OF THE SEVERAL HUNDRED SUBMITTED PURSUANT TO THE
BATES DECISION. YOU WILL NOTE THAT WE HAVE STATED THEREIN THAT WE
REGARD OUR DETERMINATION AS DISPOSITIVE OF THE CLAIMS OF OTHER EMPLOYEES
IDENTICALLY SITUATED. EACH SUCH CLAIMANT WILL BE SO ADVISED BY OUR
TRANSPORTATION AND CLAIMS DIVISION.
IN REACHING OUR CONCLUSION WE HAVE GIVEN THOROUGH CONSIDERATION TO
THE POINTS RAISED DURING DISCUSSION WITH YOU AND OTHER REPRESENTATIVES
OF THE AFGE AND SUMMARIZED BY MR. MERRIGAN IN HIS LETTER OF JULY 12,
1974. MR. MERRIGAN SUGGESTS THAT THE RESULT IN THE BATES CASE BE
ADOPTED WITHOUT REGARD TO THE COURT'S DECISION IN ANDERSON ET AL. V.
UNITED STATES, 201 CT. CL. 660 (1973), AND IN THE ALTERNATIVE THAT WE
ADOPT THE ANDERSON DECISION BASED UPON THE EQUITABLE CONSIDERATIONS
THERE RELIED UPON BY THE COURT. WHILE WE SUBSCRIBE TO THE PRINCIPLE OF
EQUAL TREATMENT OF EMPLOYEES WORKING UNDER COMPARABLE CIRCUMSTANCES, WE
CANNOT CONSIDER OURSELVES BOUND BY A DECISION SUCH AS BATES BASED WHOLLY
UPON AN ERRONEOUS STIPULATION OF FACT. NEITHER CAN WE, FOR PURELY
EQUITABLE REASONS, ADOPT AN OPINION SUCH AS ANDERSON, SO BROADLY
DEPARTING FROM A LONG-STANDING AND REASONABLE ADMINISTRATIVE
INTERPRETATION OF SUBSTANTIALLY THE SAME REGULATORY LANGUAGE.
IN OUR LETTER TO YOU OF JUNE 6, 1974, WE REQUESTED ANY EVIDENCE YOU
MIGHT HAVE DEMONSTRATING THAT THE DIRECTOR OF THE BUREAU OF MEDICINE AND
SURGERY AUTHORIZED OR APPROVED THE WORK IN QUESTION IN ACCORDANCE WITH
THE LIBERAL STANDARDS RECENTLY SET FORTH BY THE COURT OF CLAIMS IN
BAYLOR ET AL. V. UNITED STATES, 198 CT. CL. 133 (1972). THE EVIDENCE
SO PRESENTED IN PART III OF MR. MERRIGAN'S LETTER FURTHER DOCUMENTS THE
EXTENT OF THE REPORTING AND DEPARTURE PROCEDURES INVOLVED BUT DOES NOT,
IN OUR VIEW, DEMONSTRATE THAT THE WORK IN QUESTION WAS DULY AUTHORIZED
OR APPROVED.
WE APPRECIATE YOUR ASSISTANCE IN ATTEMPTING TO PROVIDE EVIDENCE WHICH
WOULD ESTABLISH A LEGAL BASIS FOR A MORE EQUITABLE RESOLUTION OF THESE
CLAIMS.
R. F. KELLER
DEPUTY COMPTROLLER GENERAL OF THE UNITED STATES
B-176580, AUG 7, 1974
HEADNOTES-UNAVAILABLE
VA EMPLOYEES CLAIM OVERTIME UNDER 5 U.S.C. 5542(A) FOR PRELIMINARY
AND POSTLIMINARY DUTY IN ACCORDANCE WITH THE HOLDINGS IN THE BATES AND
ANDERSON CASES, 196 C. CLS. 362 (1971), AND C. CLS. NO. 151-68, MAY
11, 1973, RESPECTIVELY. CLAIMS ARE DENIED SINCE THE PRELIMINARY AND
POSTLIMINARY DUTIES CLAIMANTS PERFORMED CONSTITUTED REGULARLY SCHEDULED
WORK WHICH COULD NOT BE AUTHORIZED BY LOCAL OFFICIALS. COURT CASES ARE
NOT CONSIDERED AS DISPOSITIVE OF THE ISSUES SINCE BATES CASE WAS DECIDED
ON REPUDIATED STIPULATION, AND IN ANDERSON CASE TERM "REGULARLY
SCHEDULED" WAS CONSTRUED AS MEANING "PRESCRIBED ACCORDING TO STATUTES
AND REGULATIONS" WHICH CONSTRUCTION IS CONTRARY TO LONG-STANDING
INTERPRETATION THAT SUCH TERM MEANS "WORK SCHEDULED TO RECUR ON
SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS."
CLAIMS FOR OVERTIME COMPENSATION OF VA EMPLOYEES UNDER BATES, ET AL.
V. UNITED STATES, 196 C. CLS. 362 (1971):
THIS ACTION IS A CONSIDERATION OF THE CLAIMS OF MESSERS. HAYWARD
AARON, JR. AND RAYMOND L. ADAMS FOR OVERTIME COMPENSATION FOR
PERFORMANCE OF PRELIMINARY AND POSTLIMINARY FUNCTIONS. MR. AARON'S
CLAIM COVERS THE PERIOD NOVEMBER 1965 TO APRIL 6, 1966. THE TWO CLAIMS
ARE EXEMPLARY OF SEVERAL HUNDRED RECEIVED FROM PRESENT AND FORMER
EMPLOYEES OF THE VETERANS ADMINISTRATION (VA) HOSPITAL, AUGUSTA,
GEORGIA. THE DECISION RENDERED HEREIN IS DISPOSITIVE OF THE CITED
CLAIMS AND THOSE OF OTHER EMPLOYEES INSOFAR AS THE CIRCUMSTANCES
RELATING TO THEIR PERFORMANCE OF PRELIMINARY AND POSTLIMINARY DUTIES ARE
IDENTICAL.
THE CLAIMANTS STATE THAT THEY WERE WORKING AT THE SAME VA HOSPITAL,
UNDER THE SAME CONDITIONS, RULES AND REGULATIONS, AS PLAINTIFFS INVOLVED
IN THE CASE OF BOYKIN W. BATES, ET AL. V. UNITED STATES, 196 C. CLS.
362 (1971). THE PRESHIFT AND POSTSHIFT ACTIVITIES INVOLVED IN THE BATES
CASE AND FOR WHICH COMPENSATION IS HERE SOUGHT INCLUDE CHANGING INTO AND
OUT OF GOVERNMENT FURNISHED UNIFORMS AT A LOCKER PROVIDED IN THE
BASEMENT OF ONE OF THE HOSPITAL BUILDINGS AND REPORTING IN UNIFORM TO
ASSIGNED DUTY LOCATIONS BEFORE THE SCHEDULED SHIFT STARTS TO OBTAIN
BRIEFINGS OF WARD CONDITIONS, RECEIVE SPECIAL INSTRUCTIONS, ETC.
RELYING LARGELY UPON THE ERRONEOUS STIPULATION OF GOVERNMENT COUNSEL
THAT LOCAL HOSPITAL OFFICIALS HAD AUTHORITY TO ORDER AND APPROVE
OVERTIME FOR EMPLOYEES OF THE AUGUSTA HOSPITAL DURING THE PERIOD PRIOR
TO APRIL 6, 1966, THE COMMISSIONER IN THE BATES CASE FOUND THAT LOCAL
OFFICIALS HAD IN FACT ORDERED OR APPROVED PERFORMANCE OF THE DUTIES
INVOLVED AND THUS THAT PERFORMANCE OF THOSE FUNCTIONS AS OVERTIME WORK
HAD BEEN ORDERED OR APPROVED BY OFFICIALS HAVING AUTHORITY TO ORDER OR
APPROVE OVERTIME REQUIRED BY 5 U.S.C. 911 (1964 ED.). IN HOLDING THE
GOVERNMENT BOUND BY ITS INCORRECT STIPULATION, THE COMMISSIONER FOUND NO
NECESSITY TO CONSIDER THE DETERMINATIVE ISSUE OF WHETHER, UNDER
PERTINENT VA REGULATIONS HEREINAFTER CITED, THE LOCAL HOSPITAL OFFICIAL
HAD AUTHORITY TO ORDER THE PARTICULAR OVERTIME DUTIES HERE INVOLVED. AT
PAGE 370 THE COMMISSIONER STATED:
"THE DETERMINATIVE ISSUE IN THIS CASE IS WHETHER OR NOT THE OVERTIME
WORK PERFORMED BY PLAINTIFFS IN THIS CASE WAS 'WORK OFFICIALLY ORDERED
OR APPROVED.' IF DEFENDANT IS TO BE HELD BOUND BY ITS STIPULATION THAT
DR. BRANNON AND MR. COWLEY HAD THE AUTHORITY TO ORDER AND APPROVE
OVERTIME DURING THE CLAIM PERIOD AT SUBJECT HOSPITAL, THEN ANY
DISCUSSION CONCERNING THE INTERPRETATION TO BE GIVEN TO VETERANS
ADMINISTRATION REGULATIONS AND REGULATIONS OF THE SUBJECT HOSPITAL WOULD
CLEARLY BE OBITER DICTA.
"IT IS WELL SETTLED THAT ABSENT SPECIAL CONSIDERATIONS, A STIPULATION
BY A PARTY IN INTEREST IS BINDING UPON SUCH PARTY. IT IS MY CONCLUSION
THAT THERE ARE NO SPECIAL CONSIDERATIONS IN THIS CASE WHICH JUSTIFY A
DEPARTURE FROM SUCH RULE. *** ON THE BASIS OF THE STIPULATION, ENTERED
INTO AS DESCRIBED ABOVE, AND THE REGULATIONS AND INSTRUCTIONS ISSUED BY
OR UNDER THE DIRECTION OF DR. BRANNON, IT IS CONCLUDED THAT THE SUBJECT
OVERTIME WORK WAS OFFICIALLY ORDERED AND APPROVED." AT PAGE 363, IN ITS
OPINION, THE COURT INDICATED THAT THE CONCLUSION THAT PLAINTIFFS WERE
ENTITLED TO OVERTIME COMPENSATION WOULD HAVE BEEN REACHED EVEN WITHOUT
RELIANCE UPON THE ERRONEOUS STIPULATION, BUT OFFERED NO SUBSTANTIVE
EXPLANATION OF THE LINE OF REASONING WHICH WOULD LEAD TO SUCH A RESULT.
SUBSEQUENTLY, IN THE CASE OF KENNETH D. ANDERSON, ET AL. V. UNITED
STATES, 201 C. CLS. 660 (1973), THE COURT DID ADDRESS THE PRECISE ISSUE
PRESENTED IN BATES - WHETHER VA REGULATIONS, PERTINENT TO BOTH CASES AND
IN EFFECT DURING THE PERIODS INVOLVED IN BOTH - GAVE LOCAL OFFICIALS THE
AUTHORITY TO ORDER OR APPROVE OVERTIME OF THE NATURE INVOLVED IN THE TWO
CASES.
THE PERTINENT VA REGULATIONS IN EFFECT PRIOR TO JUNE 14, 1965,
DEFINED "IRREGULAR OR OCCASIONAL OVERTIME" AS "THOSE HOURS OF EMPLOYMENT
IN EXCESS OF THE 40-HOUR BASIC WORKWEEK, NOT SCHEDULED IN REGULARLY
SCHEDULED ADMINISTRATIVE WORKWEEK," AND DEFINED "REGULARLY SCHEDULED
OVERTIME" AS "THAT OVERTIME WHICH WOULD EXTEND BEYOND TWO SUCCESSIVE PAY
***." SUCH REGULATIONS FURTHER STATED THAT REGULARLY SCHEDULED OVERTIME
WOULD BE AUTHORIZED "ONLY IN UNUSUAL SITUATIONS WHERE SPECIAL WORK
OUTSIDE OF THE NORMAL AND ROUTINE OPERATIONS IS REQUIRED"; THAT IN SUCH
CASES, FOR THE GROUPS OF EMPLOYEES INVOLVED, A REGULARLY SCHEDULED
ADMINISTRATIVE WORKWEEK CONSISTING OF THE BASIC WORKWEEK, PLUS OVERTIME,
WOULD BE ESTABLISHED; AND THAT THE "ESTABLISHMENT OF A REGULARLY
SCHEDULED ADMINISTRATIVE WORKWEEK WHICH INCLUDES REGULARLY SCHEDULED
OVERTIME SHALL REQUIRE APPROVAL BY THE DEPARTMENT HEADS FOR FIELD
STATIONS."
THE REVISION OF REGULATION MP-5, ISSUED JUNE 14, 1965, DEFINED
REGULAR AND IRREGULAR OR OCCASIONAL OVERTIME WORK AS FOLLOWS:
"(A) REGULAR OVERTIME WORK MEANS OVERTIME WORK WHICH IS REGULARLY
SCHEDULED. FOR THIS PURPOSE, ANY OVERTIME WORK SCHEDULED FOR AN
EMPLOYEE IN ADVANCE OF THE ADMINISTRATIVE WORKWEEK IN WHICH IT FIRST IS
TO OCCUR, AND WHICH WILL RECUR OVER AN EXTENDED PERIOD OF TIME (AT LEAST
2 CONSECUTIVE ADMINISTRATIVE WORKWEEKS) CONSTITUTES REGULAR OVERTIME.
"(B) IRREGULAR OR OCCASIONAL OVERTIME WORK MEANS OVERTIME WHICH IS
NOT REGULARLY SCHEDULED."
AS TO WHICH OFFICIALS HAD AUTHORITY TO ORDER OR APPROVE OVERTIME,
PARAGRAPH 7(B)(1) OF THE JUNE 14, 1965 REVISION OF REGULATION MP-5
PROVIDED:
"(1) AUTHORIZATION. STAFF OFFICE HEADS, HEADS OF DEPARTMENTS,
DIRECTORS AND MANAGERS OF FIELD STATIONS *** OR THEIR DESIGNEES, ARE
AUTHORIZED TO ORDER AND APPROVE IRREGULAR OR OCCASIONAL OVERTIME."
THESE AND ADDITIONAL REGULATIONS ARE QUOTED AT PAGES 687 THROUGH 689
OF THE COMMISSIONER'S FINDINGS IN THE ANDERSON DECISION.
UNDER THE ABOVE-QUOTED REGULATIONS, THE COMMISSIONER FOUND, AS DOES
THIS OFFICE, THAT NEITHER THE HOSPITAL DIRECTOR NOR HIS DESIGNEE HAD
AUTHORITY TO ORDER OR APPROVE "REGULARLY SCHEDULED OVERTIME," OR
"REGULAR OVERTIME WORK." AT PAGE 691, "ULTIMATE FINDINGS AND
CONCLUSIONS," THE COMMISSIONER STATED:
"28. (A) UNDER VA REGULATIONS IN FORCE THROUGHOUT THE CLAIM PERIOD,
NEITHER THE HOSPITAL DIRECTOR NOR HIS DESIGNEES HAD ANY AUTHORITY TO
ORDER OR APPROVE 'REGULARLY SCHEDULED OVERTIME,' OR 'REGULAR OVERTIME
WORK'. DURING THE CLAIM PERIOD, THE HOSPITAL DIRECTOR HAD AUTHORITY TO
ESTABLISH REGULARLY SCHEDULED WORKWEEKS WHICH INCLUDED 'REGULARLY
SCHEDULED OVERTIME' OR 'REGULAR OVERTIME WORK' ONLY WITH THE APPROVAL OF
HIS DEPARTMENT HEAD (THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY,
VA). EVIDENCE OF ANY DELEGATION OF SUCH AUTHORITY TO THE HOSPITAL
DIRECTOR, OR ANY HERE RELEVANT REQUEST FOR SUCH APPROVAL, IS WHOLLY
ABSENT. EVIDENCE THAT ANY DEPARTMENTAL LEVEL OFFICIAL WITH AUTHORITY TO
ORDER OR APPROVE 'REGULARLY SCHEDULED OVERTIME' OR 'REGULAR OVERTIME
WORK' WAS COGNIZANT OF EITHER THE 'UNIFORM CHANGE' OR 'EARLY REPORTING
ON WARD' PRACTICES AT THE HOSPITAL IS ALSO WHOLLY ABSENT.
"(B) UNDER VA REGULATIONS IN FORCE THROUGHOUT THE CLAIM PERIOD, THE
HOSPITAL DIRECTOR DID HAVE AUTHORITY TO ORDER AND APPROVE 'IRREGULAR OR
OCCASIONAL OVERTIME'."
AS IN THE BATES CASE, IT WAS CLEAR ON THE RECORD THAT LOCAL HOSPITAL
OFFICIALS WERE AWARE OF AND MIGHT BE SAID TO HAVE INDUCED PERFORMANCE OF
THE PRELIMINARY AND POSTLIMINARY FUNCTIONS INVOLVED.
THE ISSUE IN THE ANDERSON CASE WAS THUS WHETHER PERFORMANCE OF THE
PRELIMINARY AND POSTLIMINARY DUTIES FOR WHICH OVERTIME WAS SOUGHT WAS
THE PERFORMANCE OF REGULAR OVERTIME AS OPPOSED TO IRREGULAR OR
OCCASIONAL OVERTIME. THE COURT IN THE ANDERSON CASE ULTIMATELY
CONCLUDED THAT THE DUTIES WHICH PLAINTIFFS PERFORMED CONSTITUTED
IRREGULAR OR OCCASIONAL OVERTIME SUBJECT, UNDER VA REGULATIONS, TO ORDER
OR APPROVAL BY LOCAL OFFICIALS. AT PAGE 644 OF ITS OPINION, THE COURT
EXPLAINED:
"'REGULAR' MAY CHARACTERIZE THE REGULAR REPETITION OF SIMILAR ACTS IN
A TIME FRAME, OR IT MAY ONLY INDICATE THEY ARE CORRECT AND PROPER. IT
WILL BE SEEN THAT DEFENDANT HAS ARBITRARILY SELECTED ONE MEANING AGAINST
ANOTHER, THAT IS, IT CONSIDERS 'REGULAR OVERTIME' IS OVERTIME THAT
REGULARLY RECURS AT SYMMETRICAL SPACED INTERVALS. YET, AVILES V. UNITED
STATES, 151 CT. CL. 1 (1960), A CASE DEFENDANT CITES, INDICATES THAT
OVERTIME MAY BE 'REGULAR' AND 'REGULARLY SCHEDULED', THOUGH IT IS
IRREGULAR AND UNFORSEEABLE IN ITS ACTUAL OCCURRENCE. DEFENDANT ASSIGNS
NO REASON WHY 'REGULAR OVERTIME' SHOULD NOT BE CONSIDERED TO BE LAWFULLY
AUTHORIZED OVERTIME, I.E., REGULARLY PRESCRIBED ACCORDING TO THE
STATUTES AND REGULATIONS APPLICABLE, EVEN IF IT BE IRREGULAR SO FAR AS
CONCERNS CONSTANCY AND FREQUENCY OF ITS RECURRENCE. ON THE OTHER HAND,
AN OVERTIME THAT WAS ADDED ON TO EVERY WORK DAY OF THE YEAR COULD
SEMANTICALLY BE 'IRREGULAR' IF NOT ORDERED AND DIRECTED ACCORDING TO
LAW. MOREOVER, 'REGULAR OVERTIME' HERE MUST BE 'REGULARLY SCHEDULED'.
THE REGULATION TELLS US THAT THIS MEANS SETTING UP A SCHEDULE OF WORKING
HOURS THAT STATES SEPARATELY THE BASIC AND THE OVERTIME HOURS THE
EMPLOYEE IS REQUIRED TO PUT IN. NOTHING OF THAT SORT OCCURRED HERE, NOR
COULD OCCUR WITH RESPECT TO PRELIMINARY AND POSTLIMINARY ACTIVITIES THE
ORDERING AUTHORITY FAILED TO RECOGNIZE AS BEING OVERTIME.
"STATING THE CASE AT ITS BEST FOR DEFENDANT IT IS DOUBTFUL IF
PLAINTIFFS' OVERTIME WAS 'REGULAR' BUT CERTAIN THAT IT WAS NOT
'SCHEDULED'. SINCE THE WORK HERE INVOLVED WAS THUS NOT 'REGULARLY
SCHEDULED' IT WAS 'IRREGULAR OR OCCASIONAL OVERTIME', WHICH BY THE
AGENCY'S OWN DEFINITION INCLUDES ALL OVERTIME NOT 'REGULARLY SCHEDULED'.
SINCE FIELD OFFICERS HAD AUTHORITY TO ORDER 'IRREGULAR OR OCCASIONAL
OVERTIME' THEY HAD AUTHORITY TO ORDER THE PRELIMINARY AND POSTLIMINARY
ACTIVITIES HERE INVOLVED, EVEN IF HELD TO BE COMPENSABLE OVERTIME."
THE CRUX OF THE COURT'S REASONING IS ITS VIEW THAT THE GOVERNMENT'S
CONSTRUCTION OF THE TERM "REGULAR OVERTIME" USED IN THE CONTEXT OF THE
CITED VA REGULATIONS AS ENCOMPASSING "REGULAR REPETITION OF SIMILAR ACTS
IN A TIME FRAME" WAS ARBITRARILY SELECTED. THIS OFFICE, HOWEVER, IS OF
THE OPINION THAT THE GOVERNMENT'S CONSTRUCTION OF THE TERM IS PROPER
SINCE THE PHRASE "REGULAR OVERTIME" APPEARS IN JUXTAPOSITION TO THE
PHRASE "IRREGULAR OR OCCASIONAL OVERTIME" THROUGHOUT THE BODY OF LAW
CONTAINED IN TITLE 5 OF THE UNITED STATES CODE, GOVERNING COMPENSATION
OF FEDERAL EMPLOYEES.
IN CONSIDERING THE ENTITLEMENT OF EMPLOYEES TO NIGHT DIFFERENTIAL FOR
"REGULARLY SCHEDULED WORK" UNDER 5 U.S.C. 926 (NOW 5545(A)), THIS
OFFICE, IN 36 COMP. GEN. 657 (1957), REJECTED THE DEFINITION OF
"REGULAR" ADOPTED BY THE COURT IN THE ANDERSON CASE FOR PURPOSES OF
INTERPRETING THE STATUTE THERE INVOLVED AND STATUTES SIMILARLY WORDED.
THE EMPLOYEES INVOLVED IN 36 COMP. GEN. 657 WORKED IN A SHOP IN WHICH NO
REGULAR TOUR OF DUTY HAD BEEN ESTABLISHED AND WHERE PAYMENTS OF
NIGHTWORK PREMIUM PAY HAD ERRONEOUSLY BEEN MADE BASED UPON AN
ADMINISTRATIVE CONSTRUCTION OF THE PHRASE "REGULARLY SCHEDULED" AS
MEANING "SCHEDULED BY PROPER ADMINISTRATIVE AUTHORITY" - ESSENTIALLY THE
SAME CONSTRUCTION THAT THE COURT OF CLAIMS HAS PLACED UPON THE PHRASE
"REGULARLY SCHEDULED OVERTIME" IN THE CONTEXT OF THE VA REGULATIONS HERE
INVOLVED. THERE WE STATED:
"OF COURSE THE WORD 'REGULAR' HAS SEVERAL DIFFERENT MEANINGS.
ACCORDING TO FUNK AND WAGNALLS NEW STANDARD DICTIONARY, IT MAY MEAN
ACTING ACCORDING TO RULE; FOLLOWING A UNIFORM COURSE; UNVARYING IN
PRACTICE; RECURRING WITHOUT FAIL; ETC. OR IT MAY MEAN CONSTITUTED,
APPOINTED, OR CONDUCTED IN A PROPER MANNER; CONFORMABLE TO LAW OR
CUSTOM; DULY AUTHORIZED. A CAREFUL CONSIDERATION OF THE MATTER LEADS
US TO THE CONCLUSION THAT THE CONNOTATION OF THE FIRST SERIES OF
DEFINITIONS JUST GIVEN MORE NEARLY EXPRESSES THE LEGISLATIVE INTENT.
THAT IS TO SAY, WE ARE OF THE OPINION THAT 'REGULARLY SCHEDULED WORK' IS
WORK WHICH IS SCHEDULED ON A RECURRING BASIS.
"FOR ONE THING, THE MEANING APPLIED BY THE OFFICE OF INDUSTRIAL
RELATIONS IN ITS LETTER OF OCTOBER 27, 1954, IS SUBSTANTIALLY SYNONYMOUS
WITH THE WORDS 'OFFICIALLY ORDERED' AS USED WITH RESPECT TO OVERTIME
WORK IN SECTION 201 OF THE 1945 PAY ACT, AS AMENDED BY PUBLIC LAW 763, 5
U.S.C. 911 (NOW 5 U.S.C. 5542). IN VIEW OF THE JUXTAPOSITION OF
SECTIONS 201 AND 301 (NOW 5 U.S.C. 5545(A)), IT DOES NOT SEEM REASONABLE
THAT THE DRAFTERS WOULD CHOOSE ENTIRELY DIFFERENT WORDS ('REGULARLY
SCHEDULED') TO EXPRESS IN SECTION 301 SUBSTANTIALLY THE SAME THOUGHT AS
HAD JUST BEEN EXPRESSED IN SECTION 201 WITH THE WORDS 'OFFICIALLY
ORDERED.' ***"
THE CONCLUSION THAT "REGULARLY SCHEDULED WORK" AS USED IN 5 U.S.C.
5545 (A) IS "WORK WHICH IS SCHEDULED ON A RECURRING BASIS" IS BASED UPON
A LENGTHY CONSIDERATION OF THE LEGISLATIVE INTENT AS DEDUCED FROM AN
ANALYSIS OF SECTION 301 AND OTHER PROVISIONS OF THE 1945 PAY ACT WHICH
INCORPORATE THE CONCEPT OF REGULARLY SCHEDULED WORK OR OVERTIME, AND
UPON THE EXPRESSIONS OF LEGISLATIVE INTENT INCLUDED IN LEGISLATIVE
REPORTS ON THE SUBJEFT OF NIGHT DIFFERENTIAL. ALTHOUGH THAT DECISION
WAS MODIFIED SLIGHTLY BY 40 COMP. GEN. 397 (1961) THE INTERPRETATION OF
THE CONCEPT OF REGULARLY SCHEDULED WORK OR OVERTIME AS EXPLAINED THEREIN
HAS BEEN CONSISTENTLY APPLIED TO THE BODY OF PAY STATUTES WHICH EMBRACE
THE CONCEPT OF REGULARLY SCHEDULED WORK OR OVERTIME.
IN THE CONTEXT OF 5 U.S.C. 5545(C)(2) DEALING WITH PREMIUM
COMPENSATION FOR "IRREGULAR, UNSCHEDULED OVERTIME DUTY" - DUTY WHICH IS
REGARDED AS NOT REGULARLY SCHEDULED - "REGULARLY SCHEDULED OVERTIME" HAS
BEEN CONSISTENTLY INTERPRETED AS OVERTIME AUTHORIZED IN ADVANCE AND
SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS. 48
COMP. GEN. 334 (1968); 52 ID. 319 (1972); B-160165, JANUARY 6, 1967;
B-160472, JANUARY 5, 1967; B-168048, AUGUST 19, 1970. THE CONCEPT OF
"REGULARLY SCHEDULED WORK" AS CONTAINED IN 5 U.S.C. 5545(A) DEALING
WITH NIGHWORK HAS BEEN CONSTRUED AS "WORK DULY AUTHORIZED IN ADVANCE AND
SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERFALS." 40
COMP. GEN. 397 (1961); 41 ID. 8 (1961); 42 ID. 326 (1962). AND IN THE
CONTEXT OF THE OVERTIME TRAVEL PROVISIONS OF 5 U.S.C. 5542(B)(2)(A),
THE REQUIREMENT THAT TRAVEL BE WITHIN THE ADMINISTRATIVE WORKWEEK OF THE
EMPLOYEE INCLUDING "REGULARLY SCHEDULED OVERTIME" HAS BEEN SIMILARLY
CONSTRUED.
BY USE OF THE TERMS "REGULAR OVERTIME" AND "IRREGULAR OR OCCASIONAL
OVERTIME" IN THE PARTICULAR VA REGULATIONS HERE INVOLVED, WE FIND
NOTHING TO SUGGEST THAT THE VA INTENDED THOSE PHRASES TO CONVEY A
MEANING ENTIRELY DIFFERENT THAN THAT WHICH THEY AND SIMILAR ALLUSIONS TO
REGULARITY OF ASSIGNMENT ASSUME IN THE CONTEXT OF THE CONSIDERABLE BODY
OF PAY LAWS INCLUDING THOSE CITED ABOVE. IN OUR OPINION THE COURT'S
INTERPRETATION OF THE PHRASES "REGULAR OVERTIME" AND "IRREGULAR OR
OCCASIONAL OVERTIME" REPRESENTS A BROAD DEPARTURE FROM THE LONGSTANDING
ADMINISTRATIVE INTERPRETATION OF SIMILAR LANGUAGE THROUGHOUT VARIOUS OF
THE STATUTES RELATING GENERALLY TO COMPENSATION AND TO OVERTIME
COMPENSATION IN PARTICULAR - AN INTERPRETATION SUPPORTED BY THE
LEGISLATIVE HISTORY OF THOSE STATUTES. WE THUS FIND THAT THE ADDITIONAL
DUTIES FOR WHICH CLAIMANTS REQUEST COMPENSATION WERE "REGULARLY
SCHEDULED" FALLING OUTSIDE THE AUTHORITY OF LOCAL HOSPITAL OFFICIALS TO
ORDER OR APOROVE. TO CONSTITUTE COMPENSABLE OVERTIME, PERFORMANCE OF
THOSE ADDITIONAL DUTIES MUST HAVE BEEN ORDERED OR APPROVED BY THE CHIEF
IN THE BUREAU OF MEDICINE AND SURGERY. CLAIMANTS, THROUGH ATTORNEYS
REPRESENTING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, IN THEIR
LETTER OF JULY 12, 1974, POINT TO ADMINISTRATIVE SERVICES LETTER 65-133,
ISSUED NOVEMBER 26, 1965, BY THE DEPARTMENT OF MEDICINE AND SURGERY,
VETERANS ADMINISTRATION, AS EVIDENCE THAT THE PRACTICE OF EARLY
REPORTING FOR UNIFORM CHANGES WAS KNOWN TO HEADQUARTERS OFFICIALS AND
APPROVED BY THEM. THE LETTER OF NOVEMBER 26 REMINDS ALL HOSPITAL,
CLINIC AND CENTER OFFICIALS THAT "WHILE A PERSON MAY BE REQUIRED TO WEAR
A UNIFORM HE MAY NOT BE REQUIRED TO REPORT EARLY FOR THE PURPOSE OF
DONNING A UNIFORM UNLESS HE IS PLACED IN A PAY STATUS." IT DOES NOT
PURPORT TO MAKE ANY OVERTIME AUTHORIZATION OR APPROVAL DETERMINATION AS
TO THE VARIOUS VA SITUATIONS. OUR VIEW IS THAT NEITHER THE NOVEMBER 26
LETTER NOR ANY OTHER EVIDENCE PRESENTED IN THE JULY 12, 1974, LETTER, OR
EARLIER REPORTS, DEMONSTRATE THAT THE CHIEF OF THE BUREAU OF MEDICINE
AND SURGERY AUTHORIZED OR APPROVED THE ADDITIONAL DUTIES IN QUESTION.
IN THE ABSENCE OF ANY EVIDENCE WHATSOEVER THAT THESE ADDITIONAL
DUTIES WERE ORDERED OR APPROVED BY OFFICIALS AUTHORIZED TO DO SO, WE
ARE, THEREFORE, CONSTRAINED TO FIND THAT THE DUTIES FOR WHICH MESSRS.
AARON AND ANDERSON CLAIM OVERTIME COMPENSATION WERE NOT ORDERED OR
APPROVED BY AN OFFICIAL HAVING AUTHORITY TO ORDER OR APPROVE OVERTIME IN
THE NATURE OF THAT HERE INVOLVED AS REQUIRED BY 5 U.S.C. 5542(A).
WHILE IT APPEARS THAT LOCAL HOSPITAL OFFICIALS ORDERED PERFORMANCE OF
THE PRELIMINARY AND POSTLIMINARY FUNCTIONS PERFORMED BY CLAIMANTS, THOSE
OFFICIALS ACTED BEYOND THE SCOPE OF THEIR AUTHORITY TO ORDER OVERTIME AS
SET FORTH IN VA REGULATIONS DISCUSSED ABOVE. BY THEIR UNAUTHORIZED
ACTS, THOSE OFFICIALS MAY NOT BIND THE GOVERNMENT. THE WELL ESTABLISHED
RULE OF LAW IN THIS REGARD IS THAT ANYONE ENTERING INTO AN ARRANGEMENT
WITH THE GOVERNMENT TAKES THE RISK OF HAVING ASCERTAINED THAT THE AGENT
WITH WHOM HE DEALS AND WHO PURPORTS TO ACT FOR THE GOVERNMENT STAYS
WITHIN THE LIMITS OF HIS AUTHORITY,INASMUCH AS THE GOVERNMENT CAN BE
NEITHER BOUND NOR ESTOPPED BY THE UNAUTHORIZED ACTS OF ITS AGENTS. HART
V. UNITED STATES, 95 U.S. 316 (1877); PINE RIVER LOGGING CO. V. UNITED
STATES, 186 U.S. 279 (1902); UTAH POWER AND LIGHT CO. V. UNITED STATES,
243 U.S. 389 (1917); SUTTON V. UNITED STATES, 256 U.S. 575 (1921);
WILBER NATIONAL BANK V. UNITED STATES, 294 U.S. 120 (1935); FEDERAL
CROP INSURANCE CORPORATION V. MERRILL, 332 U.S. 380 (1947); IMMIGRATION
AND NATURALIZATION SERVICE V. HIBI, SUP. CT. NO. 72-1652, 42 USLW 3241.
IN VIEW OF THE ABOVE THE CLAIMS OF MESSRS. AARON AND ADAMS ARE
DENIED.
B-180706, AUG 7, 1974
HEADNOTES-UNAVAILABLE
1. CLAIM FOR ADDITIONAL COMPENSATION FOR PERIOD DURING WHICH
WITHIN-GRADE INCREASE WAS WITHHELD FOLLOWING NEGATIVE ACCEPTABLE LEVEL
OF COMPETENCE DETERMINATION BY AGENCY MAY NOT BE ALLOWED SINCE THE
NEGATIVE DETERMINATION HAS BEEN SUSTAINED BY BOTH THE AGENCY ON
RECONSIDERATION AND BY THE BOARD OF APPEALS AND REVIEW. DECISIONS OF
THE BOARD ARE FINAL AND CONCLUSIVE IN SUCH MATTERS AND THERE IS
THEREFORE NO BASIS FOR FURTHER ADMINISTRATIVE REVIEW.
2. EMPLOYEE CLAIMS REIMBURSEMENT OF UNUSED PARKING FEES BECAUSE HIS
PLACE OF EMPLOYMENT WAS RELOCATED DURING MIDDLE OF MONTH FOR WHICH HE
HAD PAID A FULL MONTH'S PARKING FEE AT OLD PLACE OF EMPLOYMENT.
PREVIOUS DISALLOWANCE OF CLAIM IS SUSTAINED SINCE NO LAW REQUIRES A
SPECIFIC AMOUNT OF NOTICE OF MOVE OF OFFICE WITHIN SAME GENERAL AREA,
AGENCY INDICATES EMPLOYEE SHOULD REASONABLY HAVE BEEN AWARE OF IMPENDING
MOVE, AND LAW ONLY PROVIDES FOR REIMBURSEMENT OF PARKING FEES WHEN
EMPLOYEE IS AUTHORIZED TO USE HIS CAR ON OFFICIAL BUSINESS. SEE COMP.
GEN. DEC. CITED.
JOHN E. HOLT - COMPENSATION FOR WITHHELD WITHIN-GRADE INCREASE:
THIS MATTER INVOLVES A REQUEST FOR RECONSIDERATION OF A SETTLEMENT
CERTIFICATE ISSUED OCTOBER 24, 1973, BY OUR TRANSPORTATION AND CLAIMS
DIVISION WHEREIN THE CLAIMS OF MR. JOHN E. HOLT, AN EMPLOYEE OF THE
GENERAL SERVICES ADMINISTRATION, FOR ADDITIONAL COMPENSATION IN
CONNECTION WITH A DELAYED WITHIN-GRADE STEP INCREASE AND FOR
REIMBURSEMENT FOR UNUSED PARKING FEES DURING A MONTH IN WHICH HIS PLACE
OF EMPLOYMENT WAS RELOCATED, WERE DISALLOWED.
REGARDING THE CLAIM FOR COMPENSATION FOR THE PERIOD DURING WHICH MR.
HOLT'S WITHIN-GRADE STEP INCREASE WAS WITHHELD, THE RECORD INDICATES
THAT ON AUGUST 10, 1970, MR. HOLT RECEIVED A COPY OF HIS AGENCY'S AUGUST
8, 1970, DECISION TO WITHHOLD HIS WITHIN-GRADE SALARY INCREASE BASED
UPON ITS DETERMINATION THAT HIS PERFORMANCE WAS NOT AT AN ACCEPTABLE
LEVEL OF COMPETENCE. SUBSEQUENTLY MR. HOLT'S AGENCY MADE ANOTHER
DETERMINATION OF THE ACCEPTABLE LEVEL OF HIS COMPETENCE WHICH WAS
FAVORABLE TO HIM AND HIS WITHIN-GRADE SALARY INCREASE WAS GRANTED
EFFECTIVE NOVEMBER 1, 1970.
ON AUGUST 11, 1970, MR. HOLT REQUESTED HIS AGENCY TO RECONSIDER THEIR
AUGUST 8, 1970, NEGATIVE ACCEPTABLE LEVEL OF COMPETENCE DETERMINATION.
ON MARCH 15, 1971, THE AGENCY SUSTAINED THEIR ORIGINAL DETERMINATION AND
ON AUGUST 3, 1971, THE CIVIL SERVICE COMMISSION'S BOARD OF APPEALS AND
REVIEW AFFIRMED THE AGENCY'S RECONSIDERATION DECISION. THEREAFTER MR.
HOLT FILED A CLAIM WITH THIS OFFICE FOR THE AMOUNT OF ADDITIONAL
COMPENSATION HE WOULD HAVE RECEIVED HAD HE BEEN GIVEN HIS WITHIN-GRADE
STEP INCREASE AT THE EARLIER DATE ON THE GROUNDS THAT HE WAS NOT ALLOWED
TO CONTEST THE BASIS FOR THE NEGATIVE DETERMINATION BOTH PERSONALLY AND
IN WRITING AND THAT THE REASONS ADVANCED BY HIS AGENCY FOR WITHHOLDING
HIS WITHIN-GRADE INCREASE WERE "THROWN OUT BY A GRIEVANCE COMMITTEE."
MR. HOLT HAS ALSO SUBMITTED TO THIS OFFICE A STATEMENT FROM ANOTHER
GENERAL SERVICES ADMINISTRATION EMPLOYEE ATTESTING TO MR. HOLT'S
PERFORMANCE AND HAS POINTED OUT THAT A JUNE 1974 DECISION OF THE BOARD
OF APPEALS AND REVIEW IN ANOTHER MATTER WOULD APPEAR TO BE FAVORABLE TO
HIS OWN CASE.
UNDER THE PROVISIONS OF SECTION 5335 OF TITLE 5, UNITED STATES CODE,
AN AGENCY IS VESTED WITH AUTHORITY TO DETERMINE WHETHER AN EMPLOYEE'S
WORK IS OF AN ACCEPTABLE LEVEL OF COMPETENCE. SUBSECTION (C) OF SECTION
5335 PROVIDES, IN PART, AS FOLLOWS:
"(C) WHEN A DETERMINATION IS MADE *** THAT THE WORK OF AN EMPLOYEE IS
NOT OF AN ACCEPTABLE LEVEL OF COMPETENCE, THE EMPLOYEE IS ENTITLED TO
PROMPT WRITTEN NOTICE OF THAT DETERMINATION AND AN OPPORTUNITY FOR
RECONSIDERATION OF THE DETERMINATION WITHIN HIS AGENCY UNDER UNIFORM
PROCEDURES PRESCRIBED BY THE COMMISSION. IF THE DETERMINATION IS
AFFIRMED ON RECONSIDERATION, THE EMPLOYEE IS ENTITLED TO APPEAL TO THE
COMMISSION. IF THE RECONSIDERATION OR APPEAL RESULTS IN A REVERSAL OF
THE EARLIER DETERMINATION, THE NEW DETERMINATION SUPERSEDES THE EARLIER
DETERMINATION AND IS DEEMED TO HAVE BEEN MADE AS OF THE DATE OF THE
EARLIER DETERMINATION ***."
THE CIVIL SERVICE COMMISSION'S PROCEDURAL REGULATIONS UNDER THAT
SECTION ARE CONTAINED IN SECTION 531.407 OF TITLE 5, CODE OF FEDERAL
REGULATIONS. SUBSECTION 531.407(E) PROVIDES FOR AN APPEAL TO THE BOARD
OF APPEALS AND REVIEW FROM THE DECISION OF AN AGENCY SUSTAINING A
NEGATIVE DETERMINATION AS TO AN EMPLOYEE'S LEVEL OF COMPETENCE.
SUBSECTIONS (E)(3) AND (4) PROVIDE:
(3) THE DECISION OF THE BOARD IS FINAL AND COMPLIANCE WITH ITS
RECOMMENDATIONS FOR CORRECTIVE ACTION IS MANDATORY.
(4) THE COMMISSION MAY, IN THEIR DISCRETION, WHEN IN THEIR JUDGMENT
SUCH ACTION APPEARS WARRANTED BY THE CIRCUMSTANCES, REOPEN AND
RECONSIDER ANY PREVIOUS DECISION.
UNDER THE ABOVE CITED LAW AND REGULATIONS, WHEN A NEGATIVE
DETERMINATION IS CHANGED, EITHER BY AN EMPLOYEE'S AGENCY ON
RECONSIDERATION OR BY THE BOARD OF APPEALS AND REVIEW UPON APPEAL TO THE
CIVIL SERVICE COMMISSION, THE CHANGE SUPERSEDES THE NEGATIVE
DETERMINATION AND THE EFFECTIVE DATE OF THE WITHIN-GRADE INCREASE IS THE
DATE ON WHICH IT OTHERWISE BECAME DUE. THEREAFTER AN EMPLOYEE IS
ENTITLED TO THE ADDITIONAL COMPENSATION HE WOULD HAVE RECEIVED HAD THE
WITH-IN GRADE INCREASE TAKEN EFFECT AT THE EARLIER DATE. HOWEVER, UNTIL
SUCH A CHANGE TAKES PLACE, THE EMPLOYEE HAS NO CLAIM FOR THE ADDITIONAL
COMPENSATION. AS INDICATED IN THE REGULATIONS, WITH THE EXCEPTION OF
DISCRETIONARY REOPENING BY THE COMMISSIONERS, DECISIONS OF THE BOARD OF
APPEALS AND REVIEW ARE FINAL IN SUCH MATTERS AND THERE IS NO BASIS FOR
FURTHER ADMINISTRATIVE REVIEW.
ACCORDINGLY, SINCE THE ORIGINAL NEGATIVE DETERMINATION IN MR. HOLT'S
CASE HAS BEEN UPHELD BY BOTH THE AGENCY AND THE BOARD OF APPEALS AND
REVIEW, THERE IS NO BASIS UNDER WHICH MR. HOLT'S CLAIM FOR ADDITIONAL
COMPENSATION MAY BE ALLOWED.
AS TO MR. HOLT'S REQUEST FOR REIMBURSEMENT OF UNUSED PARKING FEES
BECAUSE HIS PLACE OF EMPLOYMENT WAS RELOCATED DURING THE MIDDLE OF A
MONTH FOR WHICH MR. HOLT HAD PAID A FULL MONTH'S PARKING FEES AT HIS OLD
PLACE OF EMPLOYMENT, HE IS APPARENTLY BASING HIS CLAIM ON THE GROUNDS
THAT HE DID NOT RECEIVE PROPER ADVANCE NOTICE OF THE CHANGE. WE ARE
AWARE OF NO LAW OR REGULATION WHICH IMPOSES A DUTY UPON AN AGENCY TO
GIVE A CERTAIN AMOUNT OF NOTICE TO EMPLOYEES WHEN RELOCATING OFFICES
WITHIN THE SAME GENERAL AREA. FURTHER, THE ADMINISTRATIVE REPORT IN THE
MATTER INDICATES THAT MR. HOLT SHOULD REASONABLY HAVE BEEN AWARE OF THE
PROBABILITY THAT HIS OFFICE WOULD BE RELOCATED DURING THE MONTH IN
QUESTION. THE LAW PROVIDES THAT AN EMPLOYEE MAY BE REIMBURSED FOR THE
COST OF PARKING WHEN HE IS AUTHORIZED TO USE HIS CAR ON OFFICIAL
BUSINESS (47 COMP. GEN. 219 (1967)); OTHERWISE, HOWEVER, PARKING IS A
PERSONAL EXPENSE OF EACH EMPLOYEE.
ACCORDINGLY, THERE IS NO BASIS UNDER WHICH MR. HOLT'S CLAIM FOR
UNUSED PARKING MAY BE ALLOWED AND THE PREVIOUS DISALLOWANCE OF HIS CLAIM
IS SUSTAINED.
B-180771, AUG 7, 1974
HEADNOTES-UNAVAILABLE
1. SINCE PROCUREMENT WAS NEGOTIATED RATHER THAN FORMALLY ADVERTISED,
AND FACTORS OTHER THAN PRICE MAY BE CONSIDERED IN SELECTING THE AWARDEE,
PROTESTER'S ARGUMENT THAT AS LOWEST RESPONSIVE AND RESPONSIBLE OFFEROR
IT SHOULD HAVE RECEIVED AWARD IS WITHOUT LEGAL FOUNDATION, SINCE AWARDEE
WAS SELECTED ON BASIS THAT ITS OFFER WAS MORE TECHNICALLY ACCEPTABLE AND
MORE LIKELY TO ACCOMPLISH CONTRACT PURPOSE THAN PROTESTER'S OFFER; AND
ABSENT EVIDENCE THAT CONTRACTING OFFICER EXCEEDED HIS DISCRETION IN
EVALUATING TECHNICAL MERITS OF PROPOSALS, GAO HAS NO BASIS TO OBJECT TO
AWARD.
2. SPECIFICATIONS IN TREE PLANTING SOLICITATION CALLING FOR
"REASONABLE EFFORTS" TO BE EMPLOYED IN FURTHERANCE OF CONTRACT
OBJECTIVES FOUND BY GAO TO BE TOO BROAD TO PERMIT OFFERORS TO COMPETE ON
EQUAL BASIS; CONSEQUENTLY, RECOMMENDATION MADE TO AGENCY TO FURTHER
DEFINE SCOPE OF CONTRACT REQUIREMENTS.
3. SINCE CONTRACT WAS REPROCURED FOLLOWING DEFAULT, USUAL STATUTORY
REQUIREMENT THAT CONTRACTS BE LET AFTER COMPETITIVE BIDDING DOES NOT
APPLY, AND CONTRACTING OFFICER IS GIVEN CONSIDERABLE LATITUDE SUBJECT
ONLY TO REQUIREMENT OF REASONABLENESS IN DECIDING WHAT FORM CONTRACT MAY
BE RELET.
CHARLES KENT:
REQUEST FOR PROPOSALS (RFP) R3-74-87 WAS ISSUED BY THE DEPARTMENT OF
AGRICULTURE, FOREST SERVICE (SERVICE), ON FEBRUARY 27, 1974, FOR THE
REPROCUREMENT OF A DEFAULTED TREE PLANTING CONTRACT AT THE LINCOLN
NATIONAL FOREST. REPROCUREMENT WAS NEGOTIATED PURSUANT TO THE AUTHORITY
OF 41 U.S.C. 252(C)(2).
IN REPROCUREMENTS FOLLOWING DEFAULT, CONSIDERABLE LATITUDE IS GIVEN
THE CONTRACTING OFFICER, SUBJECT ONLY TO THE RULE THAT HIS ACTIONS MUST
BE REASONABLE IN DECIDING WHAT FORM THE RELET CONTRACT SHOULD TAKE, AND
MUST BE CONSISTENT WITH HIS DUTY TO MITIGATE DAMAGES. MOREOVER, THE
STATUTORY REQUIREMENT THAT CONTRACTS BE LET AFTER COMPETITIVE BIDDING
DOES NOT APPLY. SEE 42 COMP. GEN. 193 (1963), AND B-176070, DECEMBER
7, 1972.
THE SERVICE HAD APPROXIMATELY 352,000 TREE SEEDLINGS WORTH $17,862,
WHICH HAD TO BE PLANTED WITHIN 30 DAYS, SINCE THE GROUND MOISTURE WAS
DRYING UP OR THE TREES WOULD PERISH AND THE INVESTMENT WOULD BE LOST.
AWARD WAS MADE TO M.A.C., INC., AT $69,59 PER ACRE.
MR. CHARLES KENT, REPRESENTING GEORGE REFORESTATION, ONE OF FOUR
OFFERORS ON THE INSTANT SOLICITATION, CONTENDS THAT HIS FIRM SUBMITTED
THE LOW CONFORMING OFFER AND SHOULD HAVE RECEIVED THE AWARD.
THE CONTRACTING OFFICER'S REPORT STATES THAT THE DECISIVE FACTOR
EMPLOYED IN MAKING THE SELECTION WAS THE METHOD OF TREE PLANTING THAT
THE CONTRACTOR SOUGHT TO UTILIZE.
THE RECORD INDICATES THAT KENT'S PROPOSAL OFFERED TWO METHODS FOR
PLANTIN THE TREES. ONE, AT $90.45 PER ACRE, WAS FOUND TOO COSTLY. THE
OTHER, CHARACTERIZED AS A "HUNT AND PECK" SYSTEM, WAS DETERMINED TO BE
LESS DESIRABLE THAN THE METHOD OFFERED BY M.A.C., INC., THE SUCCESSFUL
OFFEROR.
THE "HUNT AND PECK" SYSTEM OFFERED BY KENT CALLED FOR SCALPING AN
18-INCH AREA AND THEN TO DRIVE A HOEDAG INTO THE GROUND AT THE CENTER
AND AT EACH OF THE FOUR CORNERS OF THE SCALPED AREA. IF THE GROUND
COULD NOT BE PENETRATED 5 INCHES WITH A SINGLE BLOW, THAT PARTICULAR
LOCATION WOULD BE CONSIDERED UNPLANTABLE. THIS METHOD WAS PRICED AT
$59,45 PER ACRE.
WHILE KENT'S "HUNT AND PECK" METHOD WAS THE LOWEST PRICED OFFER, IT
WAS CONSIDERED BY THE CONTRACTING OFFICER TO BE THE LEAST DESIRABLE
BECAUSE THE GOVERNMENT WOULD BE LIABLE FOR THE TOTAL CONTRACT PRICE EVEN
THOUGH FEW TREES MIGHT BE PLANTED. THE CONTRACTING OFFICER, IN SUPPORT
OF HIS POSITION, STATED THAT SINCE THE TERRAIN WAS VERY ROCKY WHERE THE
TREES WOULD BE PLANTED, THE CONTRACTOR WOULD HAVE DIFFICULTY IN
PENETRATING THE GROUND 5 INCHES WITH ONE BLOW FROM ITS HOEDAG, AND
THEREFORE MANY AREAS WHICH PROBABLY COULD BE PLANTED USING A DIFFERENT
METHOD WOULD BE UNPLANTABLE UNDER THE "HUNT AND PECK" PROCEDURE.
IN VIEW OF THE FACT THAT THE TERRAIN WAS VERY ROCKY AND WOULD PRESENT
SOME DIFFICULTY TO THE CONTRACTOR PLANTING THE TREES, THE RFP ONLY
CALLED FOR "REASONABLE EFFORTS" TO BE USED BY THE OFFERORS IN
DETERMINING WHICH LOCATIONS WERE PLANTABLE. M.A.C. MET THIS CRITERIA IN
ITS PROPOSAL. CONSEQUENTLY, IT DID NOT OFFER A SELF-IMPOSED LIMITATION
IN DETERMINING WHAT AREAS OF THE TERRAIN WERE PLANTABLE OR UNPLANTABLE
AS KENT DID. THE CONTRACTING OFFICER CONSIDERED M.A.C.'S "REASONABLE
EFFORTS" METHOD OF TREE PLANTING TO BE MORE TECHNICALLY ACCEPTABLE AND
MORE LIKELY TO ACCOMPLISH THE CONTRACT PURPOSE THAN KENT'S "HUNT AND
PECK" SYSTEM. ACCORDINGLY, AWARD WAS MADE TO M.A.C. AT ITS OFFERED
PRICE OF $69,59 PER ACRE.
GENERALLY, WE HAVE RECOGNIZED IN SIMILAR CASES THAT THE FINAL
SELECTION OF A CONTRACTOR UNDER NEGOTIATED PROCUREMENTS IS LARGELY A
MATTER OF JUDGMENT AND, IN THE ABSENCE OF A CLEAR SHOWING THAT A
DETERMINATION REGARDING TECHNICAL MERIT OF A PROPOSAL WAS AN ARBITRARY
ABUSE OF DISCRETION OR MADE IN BAD FAITH, OUR OFFICE DOES NOT QUESTION A
DEPARTMENT'S DECISION TO RATE ONE PROPOSAL OVER ANOTHER BASED ON ITS
TECHNICAL SUPERIORITY. SEE B-172395, JULY 7, 1971.
SINCE THERE IS NO EVIDENCE THAT THE CONTRACTING OFFICER EXCEEDED HIS
DISCRETION IN EVALUATING THE TECHNICAL MERITS OF THE PROPOSALS, WE FIND
NO LEGAL BASIS FOR OBJECTION TO THE AWARD TO M.A.C. AND THE PROTEST IS
THEREFORE DENIED.
WE OBSERVE, HOWEVER, THAT THE RFP SPECIFICATION CALLING FOR
"REASONABLE EFFORTS" BY THE CONTRACTOR WAS EXCEEDINGLY BROAD AND
OFFERORS COULD HAVE DIFFERING VIEWS AS TO WHAT IS REQUIRED.
CONSEQUENTLY, WE ARE RE RECOMMENDING TO THE SECRETARY OF AGRICULTURE
THAT IN FUTURE PROCUREMENTS OF THIS NATURE CRITERIA SUCH AS "REASONABLE
EFFORTS" BE FURTHER DEFINED. THIS WOULD PERMIT OFFERORS TO COMPETE ON
AN EQUAL BASIS.
B-181676, AUG 7, 1974
HEADNOTES-UNAVAILABLE
REJECTION OF PROSPECTIVE SUBCONTRACTOR'S PROPOSALS BY GOVERNMENT
PRIME CONTRACTOR WILL NOT BE CONSIDERED BY GAO SINCE PRIME CONTRACTOR'S
PROCEDURES IN AWARDING SUBCONTRACTS ARE GENERALLY NOT SUBJECT TO
REQUIREMENTS WHICH GOVERN DIRECT UNITED STATES PROCUREMENT WHERE THE
PRIME CONTRACTOR IS NOT ACTING AS A PURCHASING AGENT FOR THE GOVERNMENT
AND NEITHER FRAUD NOR BAD FAITH ON THE PART OF THE GOVERNMENT
CONTRACTING OFFICER IN APPROVING ANY SUCONTRACT AWARD IS ALLEGED.
NEITHER WILL GAO INTERPOSE JUDGMENT ON CONTRACT ADMINISTRATION AND
MANAGEMENT BY PRIME CONTRACTOR AS ADMINISTRATION OF PRIME CONTRACT IS
WITHIN PROVICE OF CONTRACTING AGENCY.
AIRCRAFT SYSTEMS CORPORATION:
THE BATH IRON WORKS CORPORATION (BATH) WAS AWARDED CONTRACT
N00024-74-C-0207 ON OCTOBER 30, 1973, BY THE UNITED STATES NAVY FOR WORK
UNDER ITS PATROL FRIGATE PROGRAM. PURSUANT TO THIS CONTRACT, BATH
ISSUED REQUEST FOR PROPOSALS NOS. PF-RFP-2447 (FEBRUARY 4, 1974),
PF-RFP-24-2457 (FEBRUARY 13, 1974), AND PF-RFP-24-2507 (FEBRUARY 5,
1974), FOR A SHIP'S FUEL SERVICE PRE-FILTER, A TRANSFER
FILTER/SEPARATOR, AND A SHIP'S FUEL SERVICE SYSTEM FILTER SEPARATOR,
RESPECTIVELY. AIRCRAFT SYSTEMS CORPORATION SUBMITTED PROPOSALS TO BATH
ON THESE THREE SOLICITATIONS; HOWEVER, ALL THREE OF AIRCRAFT SYSTEMS'
PROPOSALS WERE REJECTED. AS A RESULT OF THIS ACTION, AIRCRAFT SYSTEMS
HAS PROTESTED TO THIS OFFICE ON THE GROUND THAT THE REJECTIONS WERE
ARBITRARY. THE PROTESTER ALSO REQUESTS THAT WE REVIEW THE PRIME
CONTRACT AS ADMINISTERED BY BATH TO DETERMINE IF IRREGULARITIES OR
INEFFICIENCIES EXIST WHICH MAY JUSTIFY SETTING ASIDE BATH'S CONTRACT.
THE BID PROTEST PROCEDURES OF OUR OFFICE, 4 C.F.R. 20.1 ET SEQ.
(1974) DO NOT PROVIDE FOR THE ADJUDICATION OF PROTESTS BY BIDDERS
AGAINST SUBCONTRACT AWARDS MADE BY PRIME CONTRACTORS WHO ARE NOT ACTING
AS PURCHASING AGENTS FOR THE GOVERNMENT. IN THE PAST, THIS OFFICE HAS
ON OCCASION ENTERTAINED SUCH PROTESTS BECAUSE, FOR EXAMPLE, OF OUR
CONCERN WHETHER GOVERNMENTAL APPROVAL OF A SUBCONTRACT WOULD BE
PREJUDICIAL TO THE INTERESTS OF THE GOVERNMENT AND/OR BECAUSE THE USUAL
LINES OF DISTINCTION BETWEEN PRIME AND SUBCONTRACT TIERS WERE CONSIDERED
RELATIVELY UNIMPORTANT. SEE 49 COMP GEN. 668 (1970); 47 COMP. GEN. 223
(1967). HOWEVER, IN 51 COMP. GEN. 803 (1972), WE SIGNIFICANTLY LIMITED
OUR SCOPE OF REVIEW IN THIS AREA. THAT DECISION RECOGNIZED THAT WHERE
THE PRIME CONTRACTOR IS NOT ACTING AS A PURCHASING AGENT FOR THE
GOVERNMENT AND NEITHER FRAUD NOR BAD FAITH ON THE PART OF THE GOVERNMENT
CONTRACTING OFFICER IN APPROVING ANY SUBCONTRACT AWARD IS ALLEGED,
FURTHER CONSIDERATION OF SUCH PROTESTS WOULD BE UNWARRANTED. WE HAVE
SUBSEQUENTLY REAFFIRMED THAT POSITION. B-177904, MAY 4, 1973;
B-176675, DECEMBER 4, 1972. SINCE BATH IS A PRIME CONTRACTOR AND NOT
ACTING AS A PURCHASING AGENT OF THE UNITED STATES, WE MUST DECLINE TO
PASS ON THE MERITS OF AIRCRAFT SYSTEMS' PROTEST AGAINST REJECTION OF ITS
THREE PROPOSALS.
IN CONNECTION WITH THE PROTESTER'S REQUEST THAT THIS OFFICE REVIEW
THE PRIME CONTRACT AS ADMINISTERED BY BATH TO DISCOVER IF IRREGULARITIES
OR INEFFICIENCIES EXIST, THE ADMINISTRATION OF SUCH A CONTRACT IS WITHIN
THE PROVINCE OF THE CONTRACTING AGENCY AND NOT THIS OFFICE. HOWEVER, WE
WILL, OF COURSE, GIVE APPROPRIATE ATTENTION IN OUR AUDIT FUNCTIONS
INVOLVING THE PRIME CONTRACT TO ANY EVIDENCE INDICATING THAT THE COST TO
THE GOVERNMENT WAS UNDULY INCREASED BECAUSE OF ANY IMPROPER ACTIONS BY
BATH.
B-180675(1), AUG 6, 1974
HEADNOTES-UNAVAILABLE
IN VIEW OF SBA DETERMINATION THAT SUCCESSFUL OFFEROR ON NEGOTIATED
SMALL BUSINESS SET-ASIDE PROCUREMENT OF LESS THAN $10,000 IS OTHER THAN
SMALL BUSINESS CONCERN AND SINCE PROTESTER WAS UNABLE TO TIMELY PROTEST
SUCCESSFUL OFFEROR'S SIZE STATUS PRIOR TO AWARD DUE TO NAVY'S FAILURE TO
NOTIFY UNSUCCESSFUL OFFERORS OF APPARENT SUCCESSFUL OFFEROR'S IDENTITY
PRIOR TO AWARD IN ACCORDANCE WITH ASPR 1-703(B)(1) AND 3-508.2(B), GAO
BELIEVES LEGALITY OF AWARD IS QUESTIONABLE. HOWEVER, THERE CAN BE NO
EFFECTIVE REMEDY, INASMUCH AS PERFORMANCE UNDER CONTRACT HAS BEEN
COMPLETED.
PSI - PERIPHERAL SUPPORT DIVISION OF THE MESON CORPORATION:
THE UNITED STATES NAVY ELECTRONICS SUPPLY OFFICE, GREAT LAKES,
ILLINOIS, ISSUED REQUEST FOR PROPOSALS (RFP) NO. N00126-74-R-4N0336, A
100 PERCENT SMALL BUSINESS SET-ASIDE, FOR THE SUPPLY OF A QUANTITY OF
QUICK LOCK KNOBS. THE RFP WAS RESTRICTED TO THREE POSSIBLE SOURCES,
QUELEX DATA SYSTEMS, COMP-SERV COMPANY (COMP-SERV) AND THE
PSI-PERIPHERAL SUPPORT DIVISION OF THE MESON CORPORATION (PSI), WHICH
WERE DETERMINED TO HAVE PREVIOUSLY SUPPLIED THE IDENTICAL ITEM TO THE
PROCURING ACTIVITY OR TO HAVE PREVIOUSLY BEEN APPROVED BY COMPETENT
GOVERNMENT TECHNICAL AUTHORITY FOR SUPPLYING THE IDENTICAL ITEM. THE
RFP WAS SO RESTRICTED "BECAUSE OF THE STRINGENT TECHNICAL REQUIREMENTS
OF THIS PROCUREMENT BUT INSUFFICIENCY OF GOVERNMENT TECHNICAL DATA
PERTINENT THERETO." AWARD WAS MADE UNDER THE RFP TO THE PRECISION
COMPONENTS DIVISION OF BELL INDUSTRIES, INC. (BELL), EFFECTIVE JANUARY
7, 1974. PERFORMANCE UNDER THE CONTRACT HAS BEEN COMPLETED.
UPON BEING ADVISED OF THE AWARD WHEN IT MADE A TELEPHONE INQUIRY TO
ASCERTAIN THE RFP'S STATUS, PSI BY TELEGRAM DATED FEBRUARY 19, 1974,
PROTESTED TO OUR OFFICE THE AWARD TO BELL ON THE GROUNDS THAT BELL WAS
NOT A SMALL BUSINESS CONCERN BUT RATHER WAS A LARGE CONGLOMERATE AND
THAT BELL WAS NOT ONE OF THE DESIGNATED SOURCES SPECIFIED IN THE RFP.
BELL CERTIFIED IN ITS PROPOSAL THAT IT WAS A SMALL BUSINESS CONCERN.
UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-703(B), A
CONTRACTING OFFICER IS REQUIRED TO ACCEPT AT FACE VALUE, FOR THE
PARTICULAR PROCUREMENT INVOLVED, A CERTIFICATION BY THE OFFEROR THAT IT
IS A SMALL BUSINESS CONCERN UNLESS A TIMELY WRITTEN PROTEST IS RECEIVED
FROM ANOTHER OFFEROR OR OTHER INTERESTED PARTY CONCERNING THE SIZE
STATUS OF THE APPARENTLY SUCCESSFUL OFFEROR, OR THE CONTRACTING OFFICER
QUESTIONS THE OFFEROR'S SMALL BUSINESS STATUS AND SUBMITS THE MATTER TO
THE SMALL BUSINESS ADMINISTRATION (SBA) FOR DETERMINATION. THE
CONTRACTING OFFICER DID NOT QUESTION BELL'S SIZE, NOR DID HE SUBMIT THE
QUESTION CONCERNING BELL'S SIZE STATUS TO SBA FOR DETERMINATION PRIOR TO
AWARD. MOREOVER, PSI DID NOT SUBMIT A TIMELY PROTEST CONCERNING BELL'S
SMALL BUSINESS STATUS UNTIL AFTER THE AWARD OF THE CONTRACT, SINCE THE
NAVY DID NOT NOTIFY PSI OF THE AWARD UNTIL PSI'S TELEPHONE INQUIRY.
UPON RECEIPT OF PSI'S SIZE PROTEST AFTER AWARD, THE NAVY FORWARDED THE
MATTER TO THE SBA. THE SBA THEN DETERMINED THAT BELL IS OTHER THAN A
SMALL BUSINESS CONCERN. THE NAVY STATES THAT ALTHOUGH THIS SIZE
DETERMINATION CANNOT AFFECT THE CONTRACT HERE IN QUESTION, SINCE PSI'S
SIZE PROTEST WAS UNTIMELY, THIS DETERMINATION WILL APPLY TO ALL FUTURE
PROCUREMENTS IN WHICH BELL PARTICIPATES.
THE NAVY STATES THAT THE FAILURE TO NOTIFY PSI OF THE AWARD UNTIL
PSI'S TELEPHONE INQUIRY WAS IN ACCORDANCE WITH THE PROCURING ACTIVITY'S
POLICY NOT TO SEND WRITTEN NOTICES AT THE TIME OF AWARD TO UNSUCCESSFUL
OFFERORS ON PROCUREMENTS OF LESS THAN $10,000, UNLESS THOSE OFFERORS
SPECIFICALLY REQUEST SUCH NOTICE. HOWEVER, WE BELIEVE THIS IS
INCONSISTENT WITH ASPR 1-703(B)(1) AND 3-508.2(B), WHICH GENERALLY
REQUIRE THAT THE UNSUCCESSFUL OFFERORS ON ALL NEGOTIATED PROCUREMENTS
INVOLVING A SMALL BUSINESS SET-ASIDE BE INFORMED PRIOR TO AWARD OF THE
CONTRACT BY WRITTEN NOTICE OF THE NAME AND LOCATION OF THE APPARENT
SUCCESSFUL OFFEROR, REGARDLESS OF THE DOLLAR AMOUNT OF THE CONTRACT TO
BE AWARDED. UNLESS THE PROCURING ACTIVITY COMPLIES WITH THESE
REQUIREMENTS, A TIMELY PROTEST OF THE SUCCESSFUL OFFEROR'S SIZE STATUS
IS IMPROBABLE. INDEED, IF APPROPRIATE NOTICE HAD BEEN GIVEN IN THE
PRESENT CASE, THEN THE AWARD TO OTHER THAN A SMALL BUSINESS CONCERN IN
VIOLATION OF THE RFP'S PROVISION COULD WELL HAVE BEEN PREVENTED.
IN LIGHT OF THE SBA DETERMINATION THAT BELL IS OTHER THAN A SMALL
BUSINESS CONCERN, WE WOULD ORDINARILY UNDER THESE CIRCUMSTANCES FIND
THAT THE NAVY'S FAILURE TO PROPERLY NOTIFY THE UNSUCCESSFUL OFFERORS OF
THE IDENTITY OF THE APPARENT SUCCESSFUL OFFEROR AFFECTS THE VALIDITY OF
THE AWARD TO BELL. HOWEVER, WE CANNOT PROPOSE ANY EFFECTIVE REMEDY IN
THIS CASE, INASMUCH AS PERFORMANCE UNDER THE CONTRACT HAS BEEN
COMPLETED.
WITH REGARD TO THE CONTENTION THAT BELL WAS NOT ONE OF THE DESIGNATED
SOURCES, THE NAVY STATES THAT BELL HAS ACQUIRED AND TAKEN OVER COMP-SERV
AND NOTES THAT BOTH FIRMS HAVE THE SAME ADDRESS. HOWEVER, BY LETTER
DATED MAY 24, 1974, THE PRESIDENT OF COMP-SERV SPECIFICALLY DENIES THAT
COMP-SERV HAS BEEN ACQUIRED BY BELL AND STATES THAT IT IS STILL A
PUBLICLY HELD CORPORATION, ALTHOUGH IT DOES SHARE FACILITIES WITH BELL.
THE PRESIDENT OF COMP-SERV, WHO ALSO IS THE DIVISION MANAGER FOR BELL,
FURTHER STATES THAT HE REQUESTED AND RECEIVED PERMISSION FROM THE
CONTRACTING OFFICER TO QUOTE THE SOLICITATION UNDER BELL.
WE HAVE VERIFIED THE FACT THAT BELL HAS NOT ACQUIRED COMP-SERV.
ALSO, IT IS APPARENT, AT LEAST IN RETROSPECT, THAT THE CONTRACTING
OFFICER'S ADVICE THAT THE PROPOSAL COULD BE SUBMITTED IN BELL'S NAME WAS
ERRONEOUS. HOWEVER, THE NAVY APPARENTLY DID DETERMINE THAT BELL'S
PROPOSAL WAS OFFERING ITEMS SUPPLIED BY COMP-SERV. IN ANY CASE, AS
STATED ABOVE, THERE IS NO EFFECTIVE REMEDY IN THIS CASE, SINCE
PERFORMANCE UNDER THE CONTRACT HAS BEEN COMPLETED.
IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.
B-180675(2), AUG 6, 1974
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
SECRETARY OF THE NAVY:
REFERENCE IS MADE TO THE PROTEST OF THE PSI-PERIPHERAL SUPPORT
DIVISION OF THE MESON CORPORATION (PSI) AGAINST THE AWARD OF A CONTRACT
TO THE PRECISION COMPONENTS DIVISION OF BELL INDUSTRIES, INC. (BELL),
PURSUANT TO REQUEST FOR PROPOSALS (RFP) NO. N00126-74-R-4N0336, ISSUED
BY THE UNITED STATES NAVY ELECTRONICS SUPPLY OFFICE, GREAT LAKES,
ILLINOIS, WHICH WAS THE SUBJECT OF A REPORT FROM THE ACTING DEPUTY
COMMANDER, PROCUREMENT MANAGEMENT, NAVY SUPPLY SYSTEMS COMMAND, DATED
MARCH 29, 1974.
ENCLOSED IS A COPY OF OUR DECISION OF TODAY DENYING THE PROTEST.
HOWEVER, WE NOTE THAT THE ADMINISTRATIVE REPORT ERRONEOUSLY STATED THAT
BELL HAS ACQUIRED THE COMP-SERV COMPANY (COMP-SERV). IN ADDITION, BY
LETTER DATED MAY 16, 1974, PSI STATED THAT:
"COMP-SERV COMPANY IS KNOWN IN THE INDUSTRY TO HAVE ONLY ONE EMPLOYEE
WHO SPENDS HIS TIME ALMOST EXCLUSIVELY IN SELLING. AS FAR AS IS KNOWN
THEY HAVE NO PRODUCTION OR MANUFACTURING FACILITIES OF THEIR OWN, AND
PASSES OR SUBCONTRACTS ENTIRE JOBS TO OTHER FIRMS."
FURTHERMORE, COMP-SERV ADMITS THAT IT SHARES FACILITIES WITH BELL AND
WE NOTE COMP-SERV'S PRESIDENT IS ALSO THE DIVISION MANAGER FOR BELL. WE
ARE BRINGING THESE MATTERS TO YOUR ATTENTION FOR YOUR INFORMATION AS TO
THE PROPRIETY OF COMP-SERV'S LISTING AS A QUALIFIED SOURCE AND
COMP-SERV'S ALLEGED SMALL BUSINESS STATUS, FOR FUTURE PROCUREMENTS
INVOLVING BELL AND COMP-SERV.
ALSO, WE DIRECT YOUR ATTENTION TO THAT PORTION OF THE DECISION, WHERE
WE FIND THAT THE POLICY OF NOT NOTIFYING THE UNSUCCESSFUL OFFERORS ON
NEGOTIATED PROCUREMENTS OF LESS THAN $10,000 OF THE IDENTITY OF THE
APPARENT SUCCESSFUL OFFEROR PRIOR TO AWARD OF THE CONTRACT IS IN
VIOLATION OF SECTIONS 1-703(B)(1) AND 3-508.2(B) OF THE ARMED SERVICES
PROCUREMENT REGULATION IN THOSE CASES WHERE THE PROCUREMENT INVOLVES A
SMALL BUSINESS SET-ASIDE. WE BELIEVE THAT APPROPRIATE ACTION SHOULD BE
TAKEN TO PREVENT THE APPLICATION OF THIS ERRONEOUS POLICY IN FUTURE
NEGOTIATED PROCUREMENTS INVOLVING SMALL BUSINESS SET-ASIDES.
WE WOULD APPRECIATE YOUR ADVICE AS TO ANY ACTION TAKEN IN LIGHT OF
OUR COMMENTS.
B-181674, AUG 6, 1974
HEADNOTES-UNAVAILABLE
WHERE INVITATION FOR BIDS AFFIRMATIVE ACTION REQUIREMENTS STIPULATED
COMPLIANCE WITH PART I OR PART II, AS APPLICABLE, AND BIDDER SIGNED AND
SUBMITTED PART I CERTIFICATION BUT SUBMITTED NO PLAN UNDER PART II, BID
IS NONRESPONSIVE BECAUSE CERTIFICATION DID NOT INCLUDE TRADES OR
PERTINENT LABOR ORGANIZATIONS THAT BIDDER INTENDED TO USE AND,
THEREFORE, THE CERTIFICATION CANNOT BE CONSIDERED TO LEGALLY BIND BIDDER
TO AFFIRMATIVE ACTION REQUIREMENTS.
JOHN E. NORTHROP CO.:
THE JOHN E NORTHROP CO. (NORTHROP) QUESTIONS THE CORRECTNESS OF THE
CONTRACTING OFFICER'S DETERMINATION THAT ITS LOW BID WAS NONRESPONSIVE
TO THE AFFIRMATIVE ACTION REQUIREMENTS DEALING WITH EQUAL EMPLOYMENT
OPPORTUNITY CONTAINED IN THE BID CONDITIONS OF SOLICITATION NO.
R5-74-183, ISSUED BY THE UNITED STATES FOREST SERVICE, AND THE AWARD OF
THE CONSTRUCTION CONTRACT TO THE SECOND LOW BIDDER. THE NOTICE TO
PROCEED WITH PERFORMANCE HAS NOT BEEN ISSUED PENDING OUR RESOLUTION OF
THE PROTEST.
WE BELIEVE THAT THE CONTRACTING OFFICER WAS CORRECT IN MAKING THE
DETERMINATION OF NONRESPONSIVENESS.
THE AFFIRMATIVE ACTION REQUIREMENTS STIPULATED THAT "ANY BIDDER,
CONTRACTOR OR SUBCONTRACTOR USING ONE OR MORE TRADES OF CONSTRUCTION
EMPLOYEES MUST COMPLY WITH EITHER PART I OR PART II OF THESE BID
CONDITIONS AS TO EACH SUCH TRADE." NORTHROP COMPLETED PART I OF THE
REQUIREMENTS WHICH CALLED FOR BIDDERS TO EXECUTE AND SUBMIT A
CERTIFICATION, AS FOLLOWS:
"TO BE ELIGIBLE FOR AWARD OF A CONTRACT UNDER PART I OF THIS
SOLICITATION FOR BIDS, A BIDDER MUST EXECUTE AND SUBMIT AS PART OF ITS
BID THE FOLLOWING CERTIFICATION, WHICH WILL BE DEEMED A PART OF THE
RESULTING CONTRACT: " JOHN E. NORTHROP CO. (BY HAND) CERTIFIES THAT:
(NAME OF BIDDER)
(A) IT INTENDS TO USE THE FOLLOWING LISTED CONSTRUCTION TRADES IN THE
WORK UNDER THE CONTRACT,
EITHER ITSELF OR THROUGH SUBCONTRACTORS AT ANY TIER ;
"(B) THE LABOR ORGANIZATIONS WITH WHOM IT HAS COLLECTIVE BARGAINING
AGREEMENTS WHO ARE SIGNATORIES TO THE GREATER FRESNO AREA PLAN AND AS TO
WHICH TRADES THERE ARE SET FORTH IN THE GREATER FRESNO AREA PLAN
SPECIFIC COMMITMENTS TO GOALS OF MINORITY MANPOWER UTILIZATION ARE AS
FOLLOWS:
"(C) THE LABOR ORGANIZATION WITH WHOM IT HAS COLLECTIVE BARGAINING
AGREEMENTS WHO ARE NOT SIGNATORIES TO THE GREATER FRESNO AREA PLAN OR
WHO ARE SIGNATORIES THERETO BUT WITH RESPECT TO TRADES FOR WHICH NO
SPECIFIC COMMITMENTS TO GOALS OF MINORITY MANPOWER UTILIZATION ARE SET
FORTH IN THE GREATER FRESNO AREA PLAN ARE AS FOLLOWS:
"(D) THE FOLLOWING IS A FULL LIST OF ALL PRESENT CONSTRUCTION WORK OR
CONTRACTS (BOTH FEDERAL AND NON-FEDERAL) TO WHICH IT IS A PARTY IN ANY
CAPACITY IN FRESNO, MADERA, KINGS AND TULARE COUNTIES,
CALIFORNIA: NONE BY HAND: ;
"(E) IT WILL COMPLY, AND REQUIRE ITS SUBCONTRACTORS TO COMPLY, WITH
ALL OF THE TERMS OF THE GREATER FRESNO AREA PLAN ON ALL WORK (BOTH
FEDERAL AND NON-FEDERAL) IN THE COUNTIES DESCRIBED IN THE PRECEDING
PARAGRAPH (D) HEREOF, IN ANY TRADE AS SET FORTH IN PARAGRAPH (B) HEREOF
FOR WHICH IT OR ITS SUBCONTRACTORS ARE COMMITTED TO THE GREATER FRESNO
AREA PLAN, AND WILL BE BOUND BY THE PROVISIONS OF PART II OF THESE BID
CONDITIONS ON ALL WORK IN SUCH COUNTIES, FOR ALL OTHER TRADES AS SET
FORTH IN PARAGRAPH (C) HEREOF, AND (F) IN THE EVENT THE BIDDER IS NO
LONGER PARTICIPATING IN AN AFFIRMATIVE ACTION PLAN ACCEPTABLE TO THE
DIRECTOR OF THE OFFICE OF FEDERAL CONTRACT COMPLIANCE, INCLUDING THE
GREATER FRESNO AREA PLAN, OR IT OR THE UNION WITH WHOM IT MAINTAINS A
COLLECTIVE BARGAINING AGREEMENT CEASES TO BE A PARTICIPATING SIGNATORY
TO THE GREATER FRESNO AREA PLAN, THE BIDDER WILL COMPLY WITH PART II OF
THESE BID CONDITIONS.
LOWELL E. NORTHROP (BY HAND)
(SIGNATURE OF AUTHORIZED REPRESENTATIVE OF BIDDER.)"
PART II OF THESE CONDITIONS REQUIRED, IF APPLICABLE, THE SUBMISSION
OF AN AFFIRMATIVE ACTION PLAN BY THE BIDDER IN CONFORMANCE WITH
PRESCRIBED REQUIREMENTS IF ONE OF THE FOLLOWING FIVE CONDITIONS WAS
APPLICABLE:
"PART II: A. COVERAGE. THE PROVISIONS OF THIS PART II SHALL BE
APPLICABLE TO THOSE BIDDERS, CONTRACTORS AND SUBCONTRACTORS, WHO, IN
REGARD TO SUCH CONSTRUCTION TRADES:
"1. ARE NOT OR HEREAFTER CEASE TO BE SIGNATORIES TO THE GREATER
FRESNO AREA PLAN REFERRED TO IN PART I HEREOF;
"2. ARE SIGNATORIES TO THE GREATER FRESNO AREA PLAN BUT ARE NOT
PARTIES TO COLLECTIVE BARGAINING AGREEMENTS;
"3. ARE SIGNATORIES TO THE GREATER FRESNO AREA PLAN BUT ARE PARTIES
TO COLLECTIVE BARGAINING AGREEMENTS WITH LABOR ORGANIZATIONS WHO ARE NOT
OR HEREAFTER CEASE TO BE SIGNATORIES TO THE GREATER FRESNO AREA PLAN;
"4. ARE SIGNATORIES TO THE GREATER FRESNO AREA PLAN BUT AS TO WHICH
NO SPECIFIC COMMITMENT TO GOALS OF MINORITY MANPOWER UTILIZATION BY
LABOR ORGANIZATION HAVE BEEN EXECUTED PURSUANT TO THE GREATER FRESNO
AREA PLAN; OR
"5. ARE NO LONGER PARTICIPATING IN AN AFFIRMATIVE ACTION PLAN
ACCEPTABLE TO THE DIRECTOR, OFCC, INCLUDING THE GREATER FRESNO AREA
PLAN."
NORTHROP FURNISHED NO INFORMATION UNDER PART II, BUT DID SUBMIT THE
CERTIFICATION, ALBEIT INCOMPLETE, UNDER PART I. AS QUOTED ABOVE,
NORTHROP FILLED IN ITS FIRM NAME AND NOTED IN PARAGRAPH (D) THAT IT HAD
NO PRESENT CONTRACTS IN THE COUNTIES ENUMERATED. THE CERTIFICATION WAS
SIGNED BY THE PRESIDENT OF NORTHROP. NORTHROP DID NOT ENUMERATE UNDER
PARAGRAPH (A) THE CONSTRUCTION TRADES IT INTENDED TO USE. IN ADDITION,
NORTHROP FAILED TO ENUMERATE THE PERTINENT LABOR ORGANIZATIONS CALLED
FOR BY PARAGRAPHS (B) AND (C) TO ESTABLISH COMMITMENTS OR NONCOMMITMENTS
TO THE GREATER FRESNO AREA PLAN. BECAUSE OF THIS, THE CONTRACTING
OFFICER FOUND THAT NORTHROP HAD NOT PROPERLY CERTIFIED PART I OF THE BID
CONDITIONS SO AS TO BE COMMITTED TO PART II. IN VIEW OF THIS FACT AND
BECAUSE NORTHROP HAD NOT SUBMITTED ITS OWN AFFIRMATIVE ACTION PLAN UNDER
PART II, THE CONTRACTING OFFICER DETERMINED THE NORTHROP BID TO BE
NONRESPONSIVE. PART III OF THE BID CONDITIONS STATES THAT "FAILURE TO
SUBMIT A PART I CERTIFICATION OR A PART II AFFIRMATIVE ACTION PLAN, AS
APPLICABLE, WILL RENDER THE BID NONRESPONSIVE."
THE FAILURE OF A BIDDER TO COMMIT ITSELF, PRIOR TO BID OPENING, TO
AFFIRMATIVE ACTION REQUIREMENTS OF A SOLICITATION, SUCH AS THOSE HERE,
REQUIRES REJECTION OF THE BID. 50 COMP. GEN. 844 (1971); AND 52 COMP.
GEN. 874 (1973). WHILE OUR DECISIONS INDICATE THAT A BIDDER CAN COMMIT
ITSELF TO SUCH REQUIREMENTS IN A MANNER OTHER THAN THAT SPECIFIED IN THE
SOLICITATION AND THAT A BIDDER'S FAILURE TO MEET THE LITERAL
REQUIREMENTS OF A SOLICITATION COULD BE WAIVED SO LONG AS THE BIDDER WAS
OTHERWISE FULLY BOUND TO THE MATERIAL AFFIRMATIVE ACTION PROVISIONS (51)
COMP. GEN. 329 (1971) AND B-179740, JANUARY 3, 1974), THE FACTUAL
CIRCUMSTANCES HERE ARE DIFFERENT. ALTHOUGH NORTHROP DID SIGN THE
CERTIFICATION, THERE WAS LACKING A DEFINITIVE COMMITMENT BY THE BIDDER
TO BIND ITSELF TO THE AFFIRMATIVE ACTION PLAN REQUIREMENTS. IN
PARAGRAPH (E) OF THE CERTIFICATION NORTHROP PROMISED THAT IT WILL BE
BOUND BY THE GREATER FRESNO AREA PLAN OR THE PROVISIONS OF PART II,
WHICHEVER IS APPLICABLE, FOR THE TRADES ENUMERATED IN PARAGRAPHS (B) AND
(C). HOWEVER, NORTHROP FAILED TO LIST THE UNION ORGANIZATIONS FROM
WHICH THESE TRADES COULD BE IDENTIFIED. CONSEQUENTLY, THERE ARE NO
TRADES COVERED BY THE CERTIFICATION WITH WHICH NORTHROP WOULD BE BOUND
TO COMPLY WITH EITHER THE PART I OR PART II REQUIREMENTS. SEE
B-179100(1), FEBRUARY 28, 1974; 52 COMP. GEN. SUPRA; AND B-179740,
SUPRA. FOR THIS REASON, WE CONCLUDE THAT THE CERTIFICATION SUBMITTED
WITH THE BID DOES NOT CONSTITUTE A LEGALLY BINDING AND EFORCEABLE
COMMITMENT ON NORTHROP'S PART.
IN VIEW OF THE ABOVE, THE PROTEST IS DENIED.
B-181878, AUG 6, 1974
HEADNOTES-UNAVAILABLE
SINCE MISTAKE HAS BEEN ADEQUATELY ESTABLISHED BY EVIDENCE SUBMITTED
AND CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF ERROR IN LOW BID
BECAUSE AVERAGE OF 12 BIDS RECEIVED WAS APPROXIMATELY 127 PERCENT HIGHER
THAN LOW BID AND NEXT LOW BID APPROXIMATELY 59 PERCENT HIGHER, CONTRACT
TO LOW BIDDER MAY BE RESCINDED WITHOUT LIABILITY.
VETERANS ADMINISTRATION REQUEST FOR DECISION CONCERNING A MISTAKE IN
BID ALLEGED BY AMERICAN FOOD SERVICES EQUIPMENT, INC.
THE DIRECTOR, SUPPLY SERVICE, DEPARTMENT OF MEDICINE AND SURGERY,
VETERANS ADMINISTRATION (VA), REQUESTS OUR DECISION PURSUANT TO FEDERAL
PROCUREMENT REGULATIONS 1-2.406-4(I) AS TO THE PROPRIETY OF THE PROPOSED
RESCISSION OF VA CONTRACT NO. 671-8628 WITH AMERICAN FOOD SERVICE
EQUIPMENT, INC. (AMERICAN), OF CHESTER, VIRGINIA. THE CONTRACT WAS
AWARDED ON MAY 13, 1974, FOR SIX FOOD SERVICE TRAYS AT A TOTAL PRICE OF
$1,939.26, BASED ON A UNIT PRICE OF $323.21.
BY LETTER OF MAY 24, 1974, AMERICAN REQUESTED RESCISSION OF THE
CONTRACT BECAUSE OF AN ALLEGED MISTAKE IN ITS BID. AMERICAN STATED THAT
ITS BID WAS COMPUTED ON THE BASIS OF A QUOTATION OF $844 PER TRAY FROM
ITS SUPPLIER, MINUS AMERICAN'S 33-1/3 PERCENT DISCOUNT. AMERICAN THEN
DETERMINED THE DOLLAR AMOUNT OF THE DISCOUNT (33-1/3 PERCENT MULTIPLIED
BY $844) TO BE $281.33 PER UNIT. INSTEAD OF SUBTRACTING $281.33 FROM
$844 TO FIND THE DISCOUNTED PRICE, AMERICAN USED THE DISCOUNT OF $281.33
AS THE QUOTED PRICE FOR THE ITEM. AMERICAN THEN APPLIED FREIGHT COSTS
AND ITS PROFIT FACTOR TO THE MISTAKEN QUOTED PRICE TO ARRIVE AT ITS BID
OF $323.21 PER UNIT. USING THE CORRECT DISCOUNTED PRICE, AMERICAN'S BID
WOULD BE $618.61 PER UNIT, OR $68.61 HIGHER THAN THE NEXT LOWEST UNIT
BID OF $550 SUBMITTED BY LAKE STATE INDUSTRIES, INC.
THE ABSTRACT OF BIDS SHOWS THAT THE NEXT LOW BID WAS APPROXIMATELY 59
PERCENT HIGHER THAN AMERICAN'S AND THE AVERAGE OF THE 12 BIDS RECEIVED
IS APPROXIMATELY 127 PERCENT HIGHER THAN AMERICAN'S UNIT PRICE.
THE CONTRACTING OFFICER STATES THAT HE SHOULD HAVE BEEN ON NOTICE OF
THE ERROR IN AMERICAN'S BID AND RECOMMENDS RESCISSION OF THE CONTRACT.
IF A BIDDER MAKE A UNILATERAL ERROR IN BID, THE BIDDER IS BOUND BY
THE AWARD UNLESS THE CONTRACTING OFFICER KNEW, OR SHOULD HAVE KNOWN, OF
THE ERROR. IF THE CONTRACTING OFFICER WAS ACTUALLY OR CONSTRUCTIVELY ON
NOTICE OF THE MISTAKE, THE CONTRACT MAY BE RESCINDED. 49 COMP. GEN.
199 (1969).
IN VIEW OF THE EVIDENCE SUBMITTED, WE CONCLUDE THAT THE ALLEGED
MISTAKE HAS BEEN ADEQUATELY ESTABLISHED AND THAT THE CONTRACTING OFFICER
SHOULD HAVE BEEN ON NOTICE OF THE MISTAKE PRIOR TO AWARD BECAUSE
AMERICAN'S BID WAS SO OUT OF LINE WITH THE OTHER BIDS SUBMITTED. SEE
B-180882, APRIL 25, 1974, AND CASES CITED THEREIN.
CONSEQUENTLY, GAO WILL NOT OBJECT TO THE PROPOSED RESCISSION OF THE
CONTRACT WITHOUT LIABILITY TO AMERICAN.
B-168096, AUG 5, 1974
HEADNOTES-UNAVAILABLE
ALTHOUGH NOT REQUIRED TO DO SO, DISTRICT OF COLUMBIA MAY IN
APPROPRIATE CIRCUMSTANCES PROVIDE PARKING FACILITIES FOR ITS EMPLOYEES
AND MAY PLACE REASONABLE CONDITIONS INCLUDING PAYMENT OF EXTRA CHARGES
THEREON. SINCE FUNDS RAISED FROM SUCH EXTRA CHARGES AT THE "GREAT
PLAZA" LOT ARE NOT DERIVED FROM PUBLIC OFF STREET PARKING AREAS, PARKING
METERS, OR EMPLOYEE OR PUBLIC PARKING AT MUNICIPAL CENTER, DISTRICT MAY
NOT DEPOSIT SUCH FUNDS IN ITS PUBLIC PARKING FACILITIES ACCOUNT UNDER
D.C. CODE 40-808, BUT MUST DEPOSIT THEM IN TREASURY OF UNITED STATES
PURSUANT TO D.C. CODE 47-126.
DISPOSITION OF FEE CHARGED BY DISTRICT OF COLUMBIA FOR PRIVILEGE OF
PARKING EMPLOYEE PRIVATE VEHICLES.
OUT VIEWS HAVE BEEN REQUESTED ON THE LEGALITY AND PROPRIETY OF THE
GOVERNMENT OF THE DISTRICT OF COLUMIA'S INCREASING THE PARKING RATES FOR
ITS EMPLOYEES WHO PARK IN THE "GREAT PLAZA" AND SIMILARLY SITUATED
PARKING LOTS. WE REQUESTED AND HAVE RECEIVED A FULL REPORT AND
EXPRESSION OF THE VIEWS OF THE ADMINISTRATOR OF GENERAL SERVICES AND THE
MAYOR COMMISSIONER OF THE DISTRICT OF COLUMBIA.
THE GREAT PLAZA PARKING LOT IS LOCATED ON A FEDERAL BUILDING SITE,
THE GRAND PLAZA (SOMETIMES REFERRED TO AS THE GREAT PLAZA), WHICH IS AN
INTEGRAL PART OF THE FEDERAL TRIANGLE COMPLEX, A DEVELOPMENT PLAN WHICH
WAS STARTED IN THE 1920'S. A PROSPECTUS FOR THE CONSTRUCTION OF AN
UNDERGROUND PARKING FACILITY AND COMPLETION OF THE GRAND PLAZA, WHICH IS
LOCATED SOUTH OF THE DISTRICT BUILDING, NORTH OF THE DEPARTMENT OF LABOR
BUILDING, AND EXTENDS FROM 13TH TO 14TH STREETS, WAS SUBMITTED TO THE
CONGRESS BY THE GENERAL SERVICES ADMINISTRATION (GSA) IN 1972.
THE SITE IS UNDER THE CHARGE AND CONTROL OF THE ADMINISTRATOR OF
GENERAL SERVICES WHO IS AUTHORIZED BY SECTION 210(A)(13) OF THE FEDERAL
PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 40 U.S.C.
490 (A)(13), TO ENTER INTO LEASES OF SUCH SITES, UNTIL THEY ARE NEEDED
FOR CONSTRUCTION PURPOSES, AT THEIR FAIR RENTAL VALUE AND UPON SUCH
OTHER TERMS AND CONDITIONS AS THE ADMINISTRATOR DEEMS IN THE PUBLIC
INTEREST. THE SECTION FURTHER PROVIDES THAT THE RENTALS RECEIVED FROM
SUCH LEASES MAY BE DEPOSITED INTO THE BUILDINGS MANAGEMENT FUND.
THE FEDERAL GOVERNMENT HAS LEASED THIS AREA, THE GRAND PLAZA, TO
COMMERCIAL PARKING OPERATORS SINCE THE 1830'S. THE CURRENT LEASE WAS
AWARDED BY THE GENERAL SERVICES ADMINISTRATION IN 1972, AFTER PUBLIC
ADVERTISING FOR BIDS, TO PARKING MANAGEMENT, INCORPORATED (PMI) FOR A
TERM OF 4 YEARS AT A MONTHLY RENTAL OF $20,111.11. THE LEASE PROVIDES,
AMONG OTHER THINGS, THAT PMI SHALL PROVIDE PARKING SPACES FOR THE
HOLDERS OF 1457 PERMITS, AT $5 PER MONTH PER PERMIT, WHICH SHALL BE
ASSIGNED TO GOVERNMENT EMPLOYEES.
GSA ALLOTS THE PARKING PERMITS TO VARIOUS AGENCIES LOCATED NEAR THE
GREAT PLAZA PARKING LOT. THOSE AGENCIES DETERMINE WHICH OF THEIR
EMPLOYEES ARE TO RECEIVE THE PERMITS. THOSE EMPLOYEES THEN PAY THE $5
MONTHLY FEE DIRECTLY TO, AND RECEIVE A MONTHLY PARKING "STICKER" FROM,
PMI. NEITHER THE AGENCIES NOR THEIR EMPLOYEES MAKE AND PAYMENT TO GSA
FOR THE PARKING PERMITS.
GSA CURRENTLY ALLOTS 40 OF THESE 1457 PARKING PERMITS TO THE DISTRICT
OF COLUMBIA. ALTHOUGH GSA REPORTS IT IS NOT CLEAR WHEN THE DISTRICT WAS
FIRST ALLOTTED PERMITS FOR PARKING IN THE GREAT PLAZA PARKING LOT, THE
ALLOTMENT OF PERMITS TO THE DISTRICT HAS BEEN THE USUAL PRACTICE FOR A
NUMBER OF YEARS. IN VIEW OF THE ADMINISTRATOR'S BROAD AUTHORITY TO
OPERATE AND MANAGE REAL PROPERTY, INCLUDING FEDERAL BUILDING SITES, AND
THE ADMINISTRATOR'S AUTHORITY TO PERFORM NUMEROUS FUNCTIONS FOR THE
DISTRICT, AND IN VIEW OF THE FACT THAT THE DISTRICT BUILDING IS LOCATED
ADJACENT TO THE GREAT PLAZA PARKING LOT, GSA BELIEVES THAT THE ALLOTMENT
OF PARKING PERMITS TO THE DISTRICT, FOR ALLOCATION TO ITS EMPLOYEES, IS
NOT IMPROPER.
UNDER THE DISTRICT OF COLUMBIA'S NEW ARRANGEMENT, DISTRICT EMPLOYEES
EACH PAY A MONTHLY CHARGE OF $25 TO THE DISTRICT OF COLUMBIA IN ADDITION
TO THE $5 MONTHLY PERMIT FEE PAID TO THE OPERATOR OF THE LOT. WITH
RESPECT TO THE NEW ARRANGEMENT, GSA STATES IT IS AWARE, IN RATHER
GENERAL TERMS, OF THE DISTRICT'S POLICY TO SET PARKING RATES FOR PRIVATE
VEHICLES PARKED ON PROPERTY UNDER ITS CONTROL THAT REFLECT THE
COMMERCIAL RATES IN THE AREA. HOWEVER, GSA DID NOT COMMENT ON THE
LEGALITY OF THESE CHARGES.
AS NOTED, GSA FEELS THAT THE ADMINISTRATOR'S BROAD STATUTORY
RESPONSIBILITY TO MANAGE FEDERAL PROPERTY IS SUFFICIENT TO AUTHORIZE HIM
TO ALLOT PARKING SPACES TO THE DISTRICT IN CIRCUMSTANCES HE DEEMS
APPROPRIATE. THE DISTRICT REPORTS THAT IT HAS NO SPECIFIC STATUTORY
AUTHORITY TO ACCEPT PARKING ASSIGNMENTS FROM THE FEDERAL GOVERNMENT BUT
THAT IT DOES HAVE THE USUAL RIGHTS INHERENT IN A MUNICIPAL CORPORATION
TO ENTER INTO BENEFICIAL ARRANGEMENTS WITH OTHER ENTITIES. IN ADDITION
ATTORNEYS IN ITS CORPORATION COUNSEL'S OFFICE HAVE ADVISED THE
APPROPRIATE DISTRICT OFFICIALS THAT THE DISTRICT'S GENERAL AUTHORITY
CONTAINED IN D.C. CODE 1-244(J) TO PLACE ORDERS "WITH ANY FEDERAL
DEPARTMENT FOR SERVICES OF ANY KIND THAT SUCH FEDERAL AGENCY MAY BE IN A
POSITION TO SUPPLY OR EQUIPPED TO RENDER, BY CONTRACT OR OTHERWISE" IS
BROAD ENOUGH TO ENCOMPASS THE SITUATION PRESENTED HERE. WE ARE NOT
AWARE OF ANY STATUTORY PROVISION WHICH WOULD PRECLUDE THE DISTRICT FROM
ACCEPTING THE ASSIGNMENT OF THE PARKING SPACES HERE INVOLVED.
UNDER GSA'S AGREEMENT WITH PMI, DISCRIBED ABOVE, THE DISTRICT
RECEIVES NO DIRECT RENUMERATION. HOWEVER, IT IS REQUIRED TO ADMINISTER
AND DISTRIBUTE THE PARKING PERMITS PLACED UNDER DISTRICT CONTROL BY GSA
ASSIGNEMNT. THE TERMS OF THE ASSIGNMENT DO NOT ADDRESS, AND HENCE DO
NOT PROHIBIT, THE ASSESSMENT OF ADDITIONAL SERVICE CHARGES BY THE
DISTRICT UPON THE EMPLOYEES TO WHICH IT ASSIGNS THESE 40 SPACES.
THE CITY COUNCIL OF THE DISTRICT HAS DIRECTED THAT ALL PARKING SPACES
OWNED, LEASED OR OTHERWISE PROVIDED BY THE CITY ON PUBLIC BUILDING SITES
SHALL BE LEASED AT THE FULL COMMERCIAL RATE CHARGED IN THE IMMEDIATE
AREA. (SEE COUNCIL CHAIRMAN NEVIUS' REPORT OF THE COMMITTEE OF THE
WHOLE, CITY COUNCIL ACTION ON FISCAL YEAR 1974 BUDGET, P.3) MOREOVER,
UNDER THE TRANSPORTATION CONTROL PLAN ADOPTED BY THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY, THE DISTRICT IS REQUIRED TO ADOPT
REGULATIONS INSTITUTING COMMERCIAL PARKING RATES FOR DISTRICT EMPLOYEES
AND ELIMINATING FREE EMPLOYEE PARKING IN CERTAIN AREAS NO LATER THAN
JUNE 30, 1975. 38 FED. REG. 33709-33712 (DECEMBER 6, 1973)
THE ISSUE OF THE LEGALITY OF THE ADDITIONAL $25 PARKING CHARGE TO BE
PAID TO THE DISTRICT WAS THE SUBJECT OF A LEGAL OPINION DATED MAY 18,
1973, OF THE DISTRICT'S COPORATION COUNSEL TO THE DISTRICT'S DIRECTOR OF
THE OFFICE OF PLANNING AND MANAGEMENT. IN THAT OPINION HE POINTS OUT
THAT SINCE THE EMPLOYEES OF AT LEAST ONE FEDERAL AGENCY PARK ON THE LOT
LOCATED ON SQUARE 490 IN THE VICINTITY OF THE MUNICIPAL CENTER, AND
"SINCE THERE IS NO QUESTION AS TO THE DISTRICT'S AUTHORITY TO
ESTABLISH PARKING FEES FOR SQUARE 490 (SEC. 40-604A, D.C. CODE, 1967
ED.), SUCH AUTHORITY COULD BE UTILIZED TO INCREASE THE RATES FOR THOSE
SPACES OBTAINED IN THE GREAT PLAZA IN EXCHANGE FOR THOSE RELINQUISHED IN
SQUARE 490."
HE THEN CONCLUDES THAT:
"EVEN IF THE ABOVE ANALYSIS IS UNAVAILING, THERE IS NO QUESTION THAT
THE DISTRICT DOES HAVE CONTROL OVER THE ISSUANCE OF PERMITS FOR THE
SUBJECT 40 PARKING SPACES, AND CAN ATTACH CONDITIONS TO THOSE PERMITS.
AN ADDITIONAL $25.00 PER MONTH FEE PAYABLE TO THE DISTRICT IS IN MY VIEW
A REASONABLE CONDITION, AND WOULD BE LEGALLY UNOBJECTIONALBE."
ORDINARILY IT IS THE RESPONSIBILITY OF THE EMPLOYEE TO FURNISH HIS
OWN TRANSPORTATION TO AND FROM HIS PLACE OF EMPOYMENT OR DUTY, AND IF HE
CHOOSES TO USE HIS PRIVATE AUTOMOBILE FOR SUCH PURPOSE, THE DISTRICT IS
UNDER NO OBLIGATION TO PROVIDE A PARKING SPACE THEREFOR, HOWEVER WHILE
NOT REQUIRED TO DO SO. IT MAY IN APPROPRIATE CIRCUMSTANCES PROVIDE
PARKING FACILITIES FOR ITS EMPLOYEES. IN OUR VIEW IF THE DISTRICT
DETERMINES TO OFFER SUCH PARKING TO SOME OF ITS EMPOYEES, IT IS ENTITLED
TO PLACE REASONABLE CONDITIONS THEREON. IF FOR APPROPRIATE REASONS THE
DISTRICT DEAMS IT IN THE PUBLIC INTEREST TO PLACE A SURCHARGE ON
EMPLOYEE PARKING, WE ARE AWARE OF NO LEGAL BASIS TO OBJECT THERETO.
ACCORDINGLY, WE DO NOT FIND THE $25 SURCHARGE IMPOSED BY THE DISTRIC
ON EMPLOYEES TO WHOM IT ALLOTS PARKING SPACES AT THE "GREAT PLAZA" TO BE
LEGALLY OBJECTIONABLE.
WITH RESPECT TO THE DISPOSITION OF THIS FEE, THE DISTRICT REPORTS
THAT THE FUNDS ARE DEPOSITED INTO ITS PUBLIC PARKING FACILITIES ACCOUNT,
ALONG WITH FEES DERIVED FROM LEASE OF OTHER DISTRICT OWNED OR CONTROLLED
PARKING AREAS. THIS ACCOUNT WAS ESTABLISHED PURSUANT TO THE PROVISIONS
OF SECTION SECTION 7 OF THE ACT OF FEBRUARY 16, 1942, THE DISTRICT OF
COLUMBIA PARKING FACILITY ACT OF 1942, 56 STAT. 93, CH. 76, AS AMENDED,
D.C. CODE 40-808, WHICH PROVIDES:
"ALL FEES AND OTHER MONEYS COLLECTED UNDER THIS CHAPTER, INCLUDING
ALL FEES COLLECTED PURSUANT TO SECTION 40-616 AND SECTION 40-604A, AND
ALL MONEYS REAL OR PERSONAL, SHALL BE DEPOSITED IN A SPECIAL ACCOUNT
WITHIN THE HIGHWAY FUND ESTABLISHED IN SECTION 47-1901. MONEYS
DEPOSITED IN SUCH SPECIAL ACCOUNT SHALL BE AVAILABLE, FIRST TO DEFRAY
THE EXPENSES OF ENFORCING LAWS, RULES, AND REGULATIONS RELATING TO THE
PARKING OF VEHICLES IN THE DISTRICT OF COLUMBIA; SECOND, TO DEFRAY THE
EXPENSES OF OPERATING PARKING FACILITIES UNDER THIS CHAPTER; THIRD, FOR
THE ACQUISITION, CREATION, AND OPERATION OF PARKING FACILITIES EXEMPT
FROM SECTION 40-809A; AND FOURTH, FOR THE MAINTENANCE OF HIGHWAYS
WITHIN THE DISTRICT OF COLUMBIA, INCLUDING THE REMOVAL OF SNOW AND ICE
THEREFROM, AND THE PURCHASE OR RENTAL OF NECESSARY EQUIPMENT."
WE QUESTION THE USE OF THIS SECTION AS AUTHORITY TO DEPOSIT THE FUNDS
HERE INVOLVED IN THE PUBLIC PARKING FACILITIES ACCOUNT. THE ONLY MONIES
AUTHORIZED TO BE DEPOSITED IN THIS SPECIAL ACCOUNT ARE THOSE WHICH ARE
RAISED UNDER THE PROVISIONS OF THE DISTRICT OF COLUMBIA PARKING FACILITY
ACT OF 1942, AS AMENDED, CHAPTER 8 OF TITLE 40, DISTRICT OF COLUMBIA
CODE, AND THOSE RAISED UNDER THE PROVISIONS OF D.C. CODE 40-616 RELATING
TO PARKING METER RECEIPTS AND D.C. CODE 40-604A RELATING TO PUBLIC AND
EMPLOYEE PARKING AT THE MUNICIPAL CENTER. THE FUNDS HERE INVOLVED ARE
OBVIOUSLY NOT RAISED THROUGH PARKING METERS OR PARKING AT THE MUNICIPAL
"ENTER. NOR MAY THEY BE CONSIDERED RAISED UNDER THE AUTHORITY OF THE
1942 ACT SINCE SECTION 2 THEREOF, D.C. CODE 40-803, DEFINES PARKING
FACILITIES AS "PUBLIC OFF-STREET PARKING AREAS" AND THESE PARKING SPACES
AT THE GREAT PLAZA ARE NOT AVAILABLE TO THE PUBLIC.
IN THE ABSENCE OF ANY OTHER STATUTORY PROVISION GOVERNING THE
DISPOSITION OF THE SUBJECT PARKING CHARGE IMPOSED BY THE DISTRICT ON ITS
EMPLOYEES WHO PARK AT THE "GREAT PLAZA," WE BELIEVE THE PROVISIONS OF
D.C. CODE 47-126, WHICH PROVIDE THAT FEES COLLECTED BY THE DISTRICT OF
COLUMBIA SHALL BE PAID INTO THE TREASURY OF THE UNITED STATES TO THE
CREDIT OF THE GENERAL FUND OF THE DISTRICT OF COLUMBIA, MUST GOVERN.
B-180211, AUG 5, 1974
HEADNOTES-UNAVAILABLE
1. REFUSAL TO OPEN SOLE-SOURCE PROCUREMENT OF DEEP-DIVE UNDERWATER
BREATHING APPARATUS SYSTEMS TO COMPETITION BY ALLOWING UNMANNED TESTS TO
SHOW QUALIFICATION TO COMPETE, WITH NECESSARY FIRST ARTICLE MANNED
TESTS, IS NOT OBJECTIONABLE NOTWITHSTANDING RECENT SUCCESSFUL MANNED
TEST OF PROTESTER'S APPARATUS. LENGTHY NAVY DEVELOPMENT AND TESTING OF
SOLE-SOURCE SYSTEM TO ACHIEVE NECESSARY LEVEL OF CONFIDENCE IN DIVER
SAFETY AND URGENT NEED FOR APPARATUS JUSTIFY FOREGOING COMPETITIVE
PROCUREMENT INVOLVING UNACCEPTABLE TECHNICAL RISKS AND RESULTING
DELIVERY DELAYS.
2. GAO VIEWS WITH CONCERN NAVY DELAY IN SPECIFYING DEFINITE
STANDARDS OF ACCEPTABLE DEEP-DIVE UNDERWATER BREATHING APPARATUS SYSTEM
PERFORMANCE NECESSARY FOR ANOTHER SOURCE TO ESTABLISH ABILITY TO
COMPETE, SINCE STANDARDS, FIRST FURNISHED IN APRIL 1974, SHOULD HAVE
BEEN SUSCEPTIBLE OF PREPARATION IN 1973 AFTER DEVELOPMENT OF SOLE-SOURCE
SYSTEM REACHED ACCEPTABLE LEVEL OF PERFORMANCE.
THE PROTEST OF BIOMARINE INDUSTRIES IS AGAINST THE PROCUREMENT BY THE
DEPARTMENT OF THE NAVY OF 24 UNDERWATER BREATHING APPARATUS (UBA)
SYSTEMS ON A SOLE-SOURCE BASIS FROM THE GENERAL ELECTRIC COMPANY (GE).
THESE ARE LIFE SUPPORT SYSTEMS FOR USE IN DIVES TO DEPTHS OF ABOUT 850
TO 1,000 FEET.
THE PROCUREMENT REPRESENTS THE CULMINATION OF SEVERAL YEARS'
DEVELOPMENT, TESTING AND MODIFICATION OF THE GE UBA SYSTEM, INVOLVING AN
EXPENDITURE OF ABOUT $1.3 MILLION BY THE NAVY.
THE BASIC JUSTIFICATION FOR THE DECISION TO PURCHASE THE GE SYSTEM IS
CONTAINED IN THE CONTRACTING OFFICER'S DETERMINATION AND FINDINGS, DATED
JUNE 25, 1973, QUOTED BELOW, AND THE CONCURRENT APPROVAL BY THE NAVAL
SHIP SYSTEMS COMMAND (NAVSHIPS) SOLE SOURCE BOARD.
"UPON THE BASIS OF THE FOLLOWING FINDINGS AND DETERMINATION WHICH I
HEREBY MAKE AS CONTRACTING OFFICER, THE PROPOSED PROCUREMENT DESCRIBED
BELOW MAY BE NEGOTIATED WITHOUT ADVERTISING PURSUANT TO THE AUTHORITY OF
10 U.S. CODE SEC. 2304(A)(10).
FINDINGS
"1. THE PROPOSED PROCUREMENT PROVIDES FOR THE FURNISHING OF 24 MK 10
MOD 4 UNDERWATER BREATHING APPARATUS, 12 M-11 FACEMASKS, 24 MK XVI HOT
WATER SUITS, UMBILICAL SUBSYSTEM CONSISTING OF 24 GAS UMBILICALS, 24 HOT
WATER UMBILICALS, AND 24 ELECTRICAL UMBILICALS, 12 COMMUNICATION
SYSTEMS, 4 PHYSIOLOGICAL MONITORING SYSTEMS, 2 SETS MK 10 MOD 4 SYSTEMS
TEST EQUIPMENT, 8 SENSOR CALIBRATION CUP ASSEMBLIES, TRAINING COURSE,
PLUS AN OPTION FOR SPARE PARTS, TOGETHER WITH ASSOCIATED TECHNICAL
DOCUMENTATION AND REPORTS.
"2. THIS EQUIPMENT IS REQUIRED TO PROVIDE A RELIABLE AND SAFE CLOSED
CIRCUIT BREATHING SYSTEM TO MEET THE MISSION CAPABILITY OF THE SUBMARINE
RESCUE SHIPS, ASR21/22, MK II MOD I DEEP DIVE SUPPORT PROGRAM. THE VERY
NATURE AND THE HAZARDS OF DEEP SATURATION DIVING THAT THIS SYSTEM WILL
BE USED FOR COULD MEAN LIFE OR DEATH FOR THE DIVER. THE UNDERWATER
BREATHING APPARATUS (UBA) MUST PROVIDE THE MOST RELIABLE AND SAFEST LIFE
SUPPORT FUNCTION FOR THE DIVER. THE MARK 10 WAS ORIGINALLY DEVELOPED BY
GENERAL ELECTRIC COMPANY. THEY HAVE THE DETAILED KNOWLEDGE, EXPERIENCE
AND CAPABILITY TO FURNISH THE REQUIRED EQUIPMENT. THE SENSOR, WHICH IS
AN INTEGRAL PART OF THE UNDERWATER BREATHING APPARATUS, IS PROPRIETARY
TO GENERAL ELECTRIC. THE GOVERNMENT DOES NOT HAVE DATA AVAILABLE TO
GIVE TO OTHERS THAT IS ADEQUATE TO ASSURE THAT ANY OTHER FIRM COULD
PROVIDE THE REQUIRED EQUIPMENT. ACCORDINGLY, IT IS IMPRACTICABLE TO
OBTAIN COMPETITION BY FORMAL ADVERTISING.
"3. THE PRICE OF THE PROPOSED PROCUREMENT IS NOT FIXED BY LAW OR
REGULATION.
DETERMINATION
"THE USE OF A NEGOTIATED PROCUREMENT IS JUSTIFIED BECAUSE IT IS
IMPRACTICABLE TO OBTAIN COMPETITION BY FORMAL ADVERTISING."
IN ADDITION, THE SOLE SOURCE BOARD APPROVAL INDICATES THAT NEITHER
PERFORMANCE SPECIFICATIONS, DESIGN DATA, MANUFACTURING DRAWINGS NOR
MODELS ADEQUATE FOR USE IN A COMPETITIVE PROCUREMENT WERE AVAILABLE. IT
IS STATED THAT THE NAVY DOES NOT PRESENTLY OWN THE UNIT BEING PROCURED -
THE GE MARK 10 MOD 4 - AND THAT THIS PROCUREMENT WILL RESULT IN A
NAVY-OWNED UNIT WITH SPECIFICATIONS AND DRAWINGS SUITABLE FOR USE IN
FUTURE COMPETITIVE PROCUREMENTS, WITH ONE PART OF THE SYSTEM, THE
SENSOR, REMAINING PROPRIETARY TO GE. HOWEVER, NAVSHIPS STATES THAT THIS
PROCUREMENT WILL BE THE ONLY PURCHASE OF THIS TYPE OF UBA SYSTEM, SINCE
FUTURE PLANS CALL FOR DEVELOPMENT OF A NEW LIFE SUPPORT SYSTEM UTILIZING
RECIRCULATION OF GAS FROM THE SUPPORT PLATFORM TO THE DIVER.
FURTHER, IT IS STATED THAT THE 24 UBA SYSTEMS ARE MANDATORY BOTH FOR
THE OUTFITTING AND MISSION CAPABILITY OF THE NAVY'S FIRST TWO SUBMARINE
RESCUE VESSELS. THE SOLE SOURCE APPROVAL STATED THAT THESE VESSELS
WOULD REQUIRE DELIVERY OF THE EQUIPMENT DURING THE PERIOD AUGUST TO
OCTOBER 1974 AND NAVSHIPS HAS REPEATEDLY STRESSED THE URGENT NEED FOR
THESE SUPPLIES. IT IS REPORTED THAT THE ASR-21 AND ASR-22 WERE
COMMISSIONED AND JOINED THE FLEET IN APRIL 1974. AWARD OF A CONTRACT TO
GE IS BEING WITHHELD PENDING THE DECISION OF OUR OFFICE.
BIOMARINE CONTENDS THAT ITS UBA SYSTEM QUALIFIES TO COMPETE FOR THE
NAVY'S REQUIREMENTS AND, THEREFORE, THAT THE SOLE-SOURCE BUY FROM GE IS
IMPROPER. BIOMARINE STATES IT HAS BEEN PRODUCING UBA'S SINCE 1969 WHEN
IT PARTICIPATED IN WHAT IT REGARDS AS AN INCOMPLETE AND INCONCLUSIVE
NAVY DEEP TEST DIVE OF UBA UNITS. AS A RESULT OF THIS TESTING, THE NAVY
SELECTED GE'S UNIT FOR FURTHER DEVELOPMENT. AS EARLY AS AUGUST 21,
1972, BIOMARINE CONTACTED THE NAVY AND REQUESTED AN OPPORTUNITY TO
COMPETE IN ANY UBA PROCUREMENT. IT WAS ADVISED 1 YEAR LATER, AUGUST 21,
1973, OF THE NAVY'S SOLE-SOURCE PLANS. THE RFP WAS ISSUED ON AUGUST 22,
1973.
DURING THE PERIOD FROM AUGUST 21, 1973, UNTIL THE FILING OF THE
PROTEST WITH OUR OFFICE ON DECEMBER 4, 1973, BIOMARINE ATTEMPTED TO
INDUCE THE NAVY TO CONDUCT THE PROCUREMENT ON A COMPETITIVE BASIS. AT A
MEETING WITH NAVY PROCUREMENT OFFICIALS, BIOMARINE ALLEGED THAT ITS UNIT
HAD UNDERGONE ONE MANNED TEST IN 1971 AT 1,000 FEET, ASSERTED THAT IT
COULD MEET THE NAVY'S REQUIREMENTS, AND REQUESTED THAT THE NAVY INDICATE
WHAT FURTHER TESTING OF THE BIOMARINE UBA WOULD BE NEEDED TO ESTABLISH
THAT IT QUALIFIED FOR THE PROCUREMENT. IN A LETTER DATED OCTOBER 2,
1973, THE NAVY PROVIDED TO BIOMARINE THE FOLLOWING STANDARDS:
"*** NAVSHIPS WOULD CONSIDER REVIEWING YOUR TEST REPORTS FOR YOUR
SATISFACTORY DIVES. THE TECHNICAL DATA IN YOUR SUBMISSION SHOULD
PROVIDE DATA IN THE FOLLOWING AREAS TO SUBSTANTIATE SATISFACTORY
PERFORMANCE:
"A. MANNED DIVES TO 1000' DEPTHS UNDER CONTINUOUS OPERATION FOR 4
HRS DIVE DURATION IN SURROUNDING WATER TEMPERATURE OF 30 F PROVIDING
DIVERS INSPIRED GAS AT A TEMPERATURE OF 70.
"B. CO2/PO2 LEVELS AT VARIOUS STEPS IN YOUR 1000' TEST WOULD ALSO BE
HELPFUL AND SHOULD ALSO INDICATE WHERE AND HOW THEY WERE SAMPLED.
"C. ANY BLOOD GAS LEVELS MEASURED AT 1000' DEPTH WOULD BE HELPFUL IN
OUR EVALUATION."
IN ITS OCTOBER 11, 1973, REPLY, BIOMARINE PROPOSED A LESS EXPENSIVE
PROGRAM OF UNMANNED TESTS WHICH, IT BELIEVED, WOULD BE ADEQUATE TO
DEMONSTRATE THE CAPABILITIES OF THE EQUIPMENT. THIS SUGGESTION WAS
REJECTED BY THE NAVY ON NOVEMBER 29, 1973, AND THE PRESENT PROTEST
ENSUED.
NAVSHIPS' RESPONSE TO THE PROTEST TOOK THE POSITION THAT ITS DECISION
TO PROCURE ON A SOLE-SOURCE BASIS WAS NOT ARBITRARY OR UNREASONABLE, IN
VIEW OF THE FACT THAT NEITHER BIOMARINE NOR ANY OTHER CONCERN BUT GE HAD
DEMONSTRATED THAT ITS UNITS COULD MEET THE GOVERNMENT'S REQUIREMENTS.
IN THIS CONNECTION, NAVSHIPS NOTED THAT BIOMARINE HAD NOT PROVIDED
RESULTS OF MANNED TESTS, BUT HAD ONLY PROPOSED UNMANNED TESTS, AND THAT
THIS WAS INSUFFICIENT TO SHOW THAT THE PROTESTER'S EQUIPMENT HAD
ACHIEVED THE LEVEL OF CONFIDENCE AND RELIABILITY MANIFESTED BY THE
EXTENSIVELY DEVELOPED, MODIFIED AND TESTED GE UNIT. IT WAS REPORTED
THAT MORE THAN 750 MANNED DIVES AT VARIOUS DEPTHS WERE CONDUCTED WITH
THE GE UBA; THAT NAVY DIVING OPERATIONS TOTALED 760 OPERATING HOURS IN
WATER TEMPERATURES AS LOW AS 25 F. TO A DEPTH OF 1,100 FEET; AND THAT
CONTRACTOR TESTING OPERATIONS TOTALED 1,431 HOURS.
BIOMARINE'S REPLY TO THIS WAS ESSENTIALLY THAT THE NAVY HAD NEVER
INDICATED WHAT ITS EXACT REQUIREMENTS WERE AND WHAT TESTING WAS REQUIRED
TO SHOW THAT THE UNIT MET THE REQUIREMENTS. THE PROTESTER CHALLENGED
THE NAVY'S ASSERTION THAT IT DID NOT COMPREHEND THE SCOPE OF THE
PROCUREMENT WITH THE CONTENTION THAT THE NAVY HAD NEVER INDICATED, EVEN
IN THE RFP ITSELF, WHAT PERFORMANCE STANDARDS AN ACCEPTABLE UBA SYSTEM
MUST MEET. NEVERTHELESS, BIOMARINE STATED THAT IT HAD REASON TO BELIEVE
IT COULD MEET THE CRITERIA, EVEN WITHOUT KNOWING THEM, SINCE FROM OTHER
EXPERIENCE AND OPPORTUNITY FOR COMPARISONS WITH GE EQUIPMENT, IT HAD
CONCLUDED THAT ITS UNITS OUTPERFORM GE'S.
AT A CONFERENCE ON THE PROTEST HELD AT OUR OFFICE ON FEBRUARY 12,
1974, BIOMARINE ITERATED THESE POINTS AND STRESSED THAT IT WAS UNFAIR
AND UNREALISTIC TO EXPECT IT TO CONDUCT MANNED TESTS AT ITS OWN EXPENSE.
IN THIS REGARD BIOMARINE POINTED OUT THAT THE PERFORMANCE STANDARDS
STATED IN THE NAVSHIPS OCTOBER 2, 1973, LETTER WERE RATHER GENERAL;
THAT MANNED TESTING WOULD COST BIOMARINE ABOUT $200,000; AND THAT THERE
WAS NO ASSURANCE THAT SUCCESSFUL COMPLETION OF THE TESTS WOULD ASSURE
QUALIFICATION TO PARTICIPATE IN THE PROCUREMENT.
IN ADDITION, SHORTLY AFTER THE CONFERENCE, BIOMARINE PRESENTED TO
NAVSHIPS THE FOLLOWING PROGRAM TO DEMONSTRATE ITS QUALIFICATIONS TO
COMPETE IN THE PROCUREMENT:
"ASSUMING WE ARE SATISFIED THAT WE CAN PERFORM TO THE LEVELS
SPECIFIED BY THE NAVY, WE ARE PREPARED TO DO THE FOLLOWING TO PROVE THAT
WE CAN AND WE SHOULD BE CONSIDERED FOR AWARD:
"1. AT BIOMARINE INDUSTRIES' EXPENSE, WE WILL ARRANGE FOR ALL
UNMANNED TESTING SPECIFIED BY THE NAVY TO BE CONDUCTED BY AN INDEPENDENT
LABORATORY, AND WE WILL PROVIDE THE NAVY WITH TEST RESULTS DEMONSTRATING
THAT OUR EQUIPMENT PASSES THE TESTS. THIS CAN BE DONE WITHIN 30 DAYS OF
PROVIDING US THE REQUIRED TESTS AND PERFORMANCE LEVELS.
"2. WE WILL PROVIDE A BIOMARINE INDUSTRIES UNIT TO THE NAVY FOR
MANNED TESTING TO PRE-QUALIFY THE BIOMARINE EQUIPMENT FOR THE PURPOSE OF
COMPETING FOR THE PROCUREMENT. WHILE THE NAVY WOULD PAY FOR THE COST OF
THESE TESTS, THE UNITS AND BIOMARINE'S TECHNICAL PERSONNEL WOULD BE
FURNISHED AT NO CHARGE TO THE NAVY.
"3. AS AN ALTERNATIVE TO #2, WE WOULD COMPETE FOR AND ACCEPT A
CONTRACT REQUIRING THE FIRST ARTICLE APPROVAL OF OUR EQUIPMENT. THE
CONTRACT WOULD SPECIFY THE TESTS TO BE PERFORMED AND THE PERFORMANCE
LEVELS TO BE ACHIEVED. WE WOULD AGREE TO PERFORM FIRST ARTICLE TESTING
CONCURRENTLY WITH THE INITIAL PRODUCTION WORK AND TO COMPLETE DELIVERIES
WITHIN THE 8 MONTH PERIOD WHICH IS STATED TO BE G.E.'S LEAD TIME.
TESTING COULD BE BY THE NAVY OR BY AN INDEPENDENT LABORATORY. IF THE
FORMER, THE COST OF SUCH TESTING COULD BE ADDED TO OUR PRICE FOR
EVALUATION PURPOSES; IF THE LATTER, THE COST OF SUCH TESTING WOULD BE
INCLUDED IN OUR PRICE. FIRST ARTICLE TEST RESULTS WOULD BE AVAILABLE
WITHIN 90 DAYS OF MUTUAL AGREEMENT ON PROCEEDING. THIS 90 DAYS INCLUDES
THE TIME FOR THE UNMANNED TESTS DESCRIBED IN #1 ABOVE.
"4. AS AN ADDITIONAL ALTERNATIVE, *** HARBOUR BRANCH (FOUNDATION) IS
CURRENTLY RUNNING MANNED TESTS TO VARIOUS DEPTHS AT DUKE UNIVERSITY.
DR. YOUNGBLOOD OF HARBOUR BRANCH HAS INDICATED AN INTEREST IN CONDUCTING
A DEEP COLD WATER DIVE DURING THE CURRENT SERIES. THE BIOMARINE RIG
COULD BE MAN TESTED AT NO COST TO THE NAVY BY PIGGY BACKING ON THEIR
TESTS SHOULD THE NAVY BE ABLE TO SET TEST PARAMETERS. WE BELIEVE TIMING
CAN BE WORKED OUT BY US IN DISCUSSIONS WITH NAVY AND HARBOUR BRANCH
PERSONNEL.
"OUR WILLINGNESS TO OFFER THE ABOVE IS DEPENDENT ON AGREEMENT THAT
PASSAGE OF THE TESTS QUALIFIES US FOR THE PROCUREMENT."
WITH REFERENCE TO THE PROPOSED MANNED TESTS DISCUSSED ABOVE IN
PARAGRAPH 4, BIOMARINE SUBSEQUENTLY FURNISHED A STATEMENT FROM DR.
YOUNGBLOOD CONCERNING A MANNED TEST OF THE BIOMARINE EQUIPMENT PERFORMED
ON APRIL 23, 1974. THIS TEST, APPARENTLY NOT CONDUCTED IN COOPERATION
WITH THE NAVY, IS DESCRIBED AS FOLLOWS:
"THE TEST CONSISTED OF A 40 MINUTE, MANNED DIVE TO 1,000 FEET IN 13 C
WATER WITH THE DIVER DOING SIMULATED OIL FIELD TASKS REQUIRING A
SUBSTANTIAL LEVEL OF PHYSICAL ACTIVITY. THE DIVER REPORTED NO PROBLEM
WITH BREATHING RESISTANCE AND THE CCR-1000 MAINTAINED EXCELLENT CONTROL
OF THE OXYGEN PARTIAL PRESSURE AND PCO2.
"WITHIN THE LIMITS TESTED, THE CCR-1000 PERFORMED IN A SAFE AND
RELIABLE MANNER. THIS TEST AND OTHERS PERFORMED BY THE BARBOUR BRANCH
FOUNDATION LABORATORY INDICATE THE POTENTIAL OF THE CCR-1000 FOR USE IN
DEEP DIVING OPERATIONS SUCH AS LOCK-OUT DIVING AND SUBMARINE RESCUE
OPERATIONS FOR WHICH WE HAVE PURCHASED THEM."
THE PRESENT PROTEST WAS HELD IN ABEYANCE WHILE THE NAVY GAVE
CONSIDERATION TO BIOMARINE'S SUGGESTED METHODS OF OPENING THE
PROCUREMENT TO COMPETITION. IN A SUPPLEMENTARY REPORT DATED APRIL 16,
1974, NAVSHIPS CONCLUDED THAT NONE OF THE POSITIONS ADVANCED BY
BIOMARINE PRESENTED A BASIS FOR COMPETITIVE PROCUREMENT.
THIS REPORT CLARIFIED THE NAVY'S REQUIREMENTS BY INDICATING THAT
DIVERS MUST BE ABLE TO DO USEFUL WORK AT A LEVEL OF 1,000 FEET WITHOUT
PHYSIOLOGICAL STRESS IN EXCESS OF CERTAIN PARAMETERS. FURTHERMORE, THE
REPORT PROVIDED A NUMBER OF TECHNICAL CRITERIA FOR MANNED TEST STANDARDS
AND CONDITIONS WHICH, IN CONJUNCTION WITH THE PHYSIOLOGICAL STRESS
PARAMETERS, REPRESENT THE PERFORMANCE LEVEL AN ACCEPTABLE UBA SYSTEM
MUST REACH IN ORDER TO SATISFY THE NAVY'S MINIMUM NEEDS. THE REPORT
EXPRESSED THE VIEW THAT A HIGH DEGREE OF CONFIDENCE AS TO THE ABILITY OF
A UBA UNIT TO ASSURE DIVER SAFETY IS MANDATORY. SINCE MANY PERFORMANCE
FACTORS CANNOT BE EXTRAPOLATED TO ACHIEVE THIS CONFIDENCE LEVEL, A
SERIES OF TESTS, CULMINATING AT A TIME WHEN NO FURTHER SIGNIFICANT
CHANGES TO THE SYSTEM ARE NEEDED, ARE NECESSARY. THIS IS THE PROCEDURE
WHICH HAS BEEN FOLLOWED WITH THE GE UBA UNIT.
IN VIEW OF THESE CONSIDERATIONS, THE NAVY FOUND NONE OF BIOMARINE'S
SUGGESTED ALTERNATIVES TO BE ACCEPTABLE:
"THE KEY ELEMENT OF GOVERNMENT CONCERN IS THE ABILITY OF THE UBA TO
SUCCESSFULLY COMPLETE MANNED TESTS IN COLD WATER AT A DEPTH OF 1000
FEET. BIOMARINE HAS OFFERED THREE ALTERNATIVES TO SUCH TESTING IN
PARAGRAPHS MARKED 1, 2, 3, AND 4 OF THEIR 14 FEBRUARY 1974 LETTER. THE
OPTION UNDER BOTH ALTERNATIVES 1 AND 2 TO HAVE TESTING ACCOMPLISHED BY
THE NAVY IS NOT PRACTICAL BECAUSE OF HIGHER PRIORITY DEMANDS ON
AVAILABLE QUALIFIED MEDICAL AND DIVING PERSONNEL. MORE IMPORTANTLY,
ALTHOUGH THE THREE ALTERNATIVES PROVIDE VARIOUS MEANS OF ACCOMPLISHING
MANNED TESTS, NONE OF THEM CAN PROVIDE THE CONFIDENCE THAT A SINGLE TEST
(AS PROPOSED BY BIOMARINE AND AS USED BY THEM AS A MEANS OF DETERMINING
THE COST TO THE NAVY AND TIME OF EQUIPMENT AVAILABILITY) WILL RESULT IN
A SYSTEM THAT FULFILLS THE CRITERIA SPECIFIED HEREIN. IN THE CASE OF
THE MK 10, THIS TESTING INVOLVED A SERIES OF THREE DIVES AT DEPTHS OF
1000 FEET OR MORE. THE COST OF A SINGLE MANNED DEEP DIVE CONDUCTED BY
NAVY PERSONNEL USING NAVY SUBJECTS IS IN EXCESS OF $200,000. THE TIME
FOR PREPARATION, EQUIPMENT TURN AROUND, CONDUCT, AND ANALYSIS OF EACH
TEST WOULD TAKE AT LEAST FOUR (4) MONTHS.
"EQUIPMENT PROVIDED TO THE NAVY MUST NOT ONLY BE SAFE AND RELIABLE,
BUT MUST ALSO BE AVAILABLE TO THE NAVY FOR USE IN A PREDICTABLE TIME
FRAME AND WITHIN THE REQUIRED TIME FRAME. NONE OF THE ALTERNATIVES
OFFERED BY BIOMARINE PROVIDE A BASIS OF COMPETITIVE CONTRACTING SINCE
THE ULTIMATE COST OF DEMONSTRATING THAT THE EQUIPMENT BEING OFFERED
MEETS THE GOVERNMENT'S MINIMUM NEEDS CANNOT BE ESTABLISHED WITH
ACCEPTABLE CONFIDENCE. FURTHER, THE ULTIMATE AVAILABILITY DATE OF THE
BIOMARINE SYSTEM FOR OPERATIONAL USE CANNOT BE ESTABLISHED WITH
CONFIDENCE FOR THE SAME REASONS. ALL OF THE ALTERNATIVES OFFERED BY
BIOMARINE ARE THEREFORE CONSIDERED BY THE NAVY TO BE UNACCEPTABLE FROM A
TECHNICAL AND MINIMUM NEED STANDPOINT."
UNDER 10 U.S.C. 2304(A)(10), THE NEGOTIATION AUTHORITY RELIED UPON BY
THE AGENCY IN ISSUING THE PRESENT SOLICITATION, CIRCUMSTANCES MAY EXIST
JUSTIFYING A NONCOMPETITIVE PROCUREMENT. ONE SUCH CIRCUMSTANCE,
DESCRIBED IN ASPR 3-210, IS WHERE THE REQUIRED SUPPLIES OR SERVICES CAN
BE OBTAINED FROM ONLY ONE PERSON OR FIRM (SOLE SOURCE OF SUPPLY). THE
CONTRACTING OFFICER'S DECISION TO MAKE A SOLE-SOURCE AWARD UNDER THIS
AUTHORITY WILL NOT BE QUESTIONED UNLESS IT IS CLEAR FROM THE RECORD THAT
THE ACTION CONSTITUTES AN ABUSE OF PROCUREMENT DISCRETION. B-178179,
JULY 27, 1973.
FOR THE REASONS WHICH FOLLOW, WE BELIEVE THAT THE NAVY'S REJECTION OF
BIOMARINE'S SUGGESTED METHODS FOR OPENING THE PROCUREMENT TO COMPETITION
WAS REASONABLE. AS WE UNDERSTAND THE PROTESTER'S FOUR-POINT PROGRAM,
THE ALTERNATIVES OF UNMANNED OR MANNED TESTING DISCUSSED IN PARAGRAPHS 1
AND 2, SUPRA, WOULD BE FOR THE PURPOSE OF ESTABLISHING BIOMARINE'S
QUALIFICATION TO COMPETE IN THE PROCUREMENT. AS WE HAVE NO BASIS TO
QUESTION THE NAVY'S POSITION THAT MANNED TESTING OF THE BIOMARINE UNIT
IS IMPRACTICABLE BECAUSE OF OTHER DEMANDS ON NAVY PERSONNEL, THIS
ALTERNATIVE WILL NOT BE CONSIDERED FURTHER. HOWEVER, WE MUST CONSIDER
BIOMARINE'S ARGUMENT THAT, ALTHOUGH MANNED TESTS ARE NECESSARY BEFORE
THE UNITS ARE DELIVERED TO THE NAVY FOR USE, THEY CAN BE ACCOMPLISHED
DURING CONTRACT PERFORMANCE. IN OTHER WORDS, THE PROTESTER HAS
CONTENDED THAT UNMANNED TESTS CAN SUFFICIENTLY ESTABLISH ITS
QUALIFICATIONS TO COMPETE, AND THAT NECESSARY MANNED TESTING CAN BE
ACCOMPLISHED IN CONNECTION WITH THE FIRST ARTICLE APPROVAL AT THE
EXPENSE OF BIOMARINE. IN THIS REGARD, BIOMARINE ALLEGES THAT DESPITE
THIS PRICE HANDICAP, IT CAN SUCCESSFULLY COMPETE FOR THE CONTRACT AT
SIGNIFICANT COST SAVINGS. TO FOLLOW THE PROCEDURE OUTLINED ABOVE WOULD
EXPOSE THE NAVY TO TECHNICAL RISKS AND THE POSSIBILITY OF DELIVERY
DELAYS. SPECIFICALLY, IF BIOMARINE FAILED TO PRODUCE AN ACCEPTABLE
FIRST ARTICLE, NAVSHIPS COULD FIND ITSELF INVOLVED IN A PROCESS OF
EXTENSIVE MODIFICATION OF THE BIOMARINE UBA WITH THE RESULTING DELAYS IN
OBTAINING AN ACCEPTABLE SYSTEM. IN THIS REGARD, WE NOTE THAT THE GE
UNIT SELECTED FOR DEVELOPMENT BY THE NAVY WENT THROUGH A SERIES OF FIVE
MODIFICATIONS DURING THE PERIOD FROM 1969 TO 1973. EVEN ACCEPTING,
ARGUENDO, BIOMARINE'S CONTENTION THAT ITS UBA CAN PRESENTLY OUTPERFORM
GE'S, IT WOULD NOT SEEM UNREASONABLE TO BELIEVE THAT THERE IS A DEFINITE
RISK THAT BIOMARINE'S UNIT MAY SIMILARLY REQUIRE CONSIDERABLE
MODIFICATION.
IN ADDITION, WE THINK ANOTHER AREA OF TECHNICAL UNCERTAINTY IS
HIGHLIGHTED BY THE FOLLOWING COMMENT IN GE'S LETTER OF FEBRUARY 22,
1973, TO OUR OFFICE:
"PROTESTANT APPEARS TO DIRECT ALL OF ITS COMMENT TO THE SUITABILITY
OF ITS COMMERCIAL UBA FOR THE NAVY REQUIREMENTS WITHOUT COMMENT ON THE
OTHER CRITICAL ELEMENTS OF THE INTEGRATED LIFE SUPPORT SYSTEM DEFINED BY
THE RFP. IT IS NOT CLEAR WHETHER PROTESTANT SEEKS TO RESPOND PIECEMEAL
TO THE RFP WITH RESPECT TO THE UBA ALONE OR TO THE ENTIRE INTEGRATED
SYSTEM. IF THE FORMER, IT IS UNCLEAR HOW PROTESTANT WOULD ACHIEVE
COMPATIBILITY OF ITS UBA WITH THE INTEGRATED SYSTEM OF THE RFP. IF THE
LATTER, PROTESTANT HAS NOT EVEN SUGGESTED HOW IT WOULD DEMONSTRATE AND
TEST OTHER THAN THE UBA PORTION OF THE SYSTEM. GENERAL ELECTRIC ON THE
OTHER HAND HAS ALREADY TESTED AND PROVEN THE RELIABILITY OF ITS TOTAL
INTEGRATED LIFE SUPPORT SYSTEM."
IN VIEW OF THE FOREGOING, AND THE URGENT NEED FOR UBA'S MEETING FLEET
REQUIREMENTS, THE NAVY'S VIEW THAT UNACCEPTABLE TECHNICAL RESKS AND
DELIVERY DELAYS JUSTIFY FOREGOING THE ADVANTAGES OF COMPETITION CANNOT,
IN OUR OPINION, BE REGARDED AS UNREASONABLE.
THE LAST SUGGESTED ALTERNATIVE PRESENTED BY BIOMARINE RELATES TO
UTILIZING ONGOING MANNED TESTS BY THE HARBOR BRANCH FOUNDATION AND, IN
THIS CONNECTION, WE MUST CONSIDER THE RESULTS OF A MANNED TEST REPORTED
BY A SCIENTIST INVOLVED IN THIS WORK. WE HAVE NO REASON TO QUESTION THE
VALIDITY OF THIS EVIDENCE. HOWEVER, IT DOES NOT OVERCOME THE THRUST OF
THE NAVY'S POSITION THAT GE'S UNIQUE CAPABILITY TO FULFILL THE PRESENT
REQUIREMENT IS BASED ON A SERIES OF MANNED TESTS CULMINATING IN THE
DEVELOPMENT OF A UBA UNIT REQUIRING NO FURTHER MAJOR MODIFICATIONS. IN
ADDITION, DR. YOUNGBLOOD'S STATEMENT ITSELF APPEARS TO RECOGNIZE THE
LIMITED SIGNIFICANCE OF THE TESTING, INASMUCH AS IT STATES THAT "THIS
TEST AND OTHERS PERFORMED *** INDICATE THE POTENTIAL OF THE ***
(BIOMARINE UNIT) FOR USE IN DEEP DIVING OPERATIONS ***."
BASED ON THE FOREGOING, WE DO NOT BELIEVE BIOMARINE HAS MET THE HEAVY
BURDEN OF SHOWING THAT THE NAVY'S SOLE-SOURCE ACTION IS ARBITRARY,
CAPRICIOUS AND AN ABUSE OF PROCUREMENT DISCRETION. ACCORDINGLY, OUR
OFFICE WILL NOT OBJECT TO THE PROPOSED AWARD TO GE, AND THE PROTEST IS
DENIED.
ONE ASPECT OF THE PROCUREMENT CAUSES US CONCERN - THE DELAY ON THE
PART OF THE NAVY IN PROVIDING TO BIOMARINE A CLEAR INDICATION OF THE
REQUIRMENTS WHICH AN ACCEPTABLE UBA SYSTEM WOULD HAVE TO MEET. AS NOTED
PREVIOUSLY, THIS INFORMATION WAS FURNISHED FOR THE FIRST TIME IN THE
NAVY'S APRIL 16, 1974, SUPPLEMENTARY REPORT IN THE FORM OF PHYSIOLOGICAL
STRESS PARAMETERS AND TEST STANDARDS AND CONDITIONS. IT SEEMS TO US
THAT UPON COMPLETING THE DEVELOPMENT OF THE GE SYSTEM AND DETERMINING
THAT IT HAD REACHED AN ACCEPTABLE LEVEL OF PERFORMANCE, OR, IN ANY
EVENT, BY THE TIME THE RFP WAS ISSUED IN AUGUST 1973, THE NAVY SHOULD
HAVE BEEN IN A POSITION TO QUANTIFY THIS PERFORMANCE STANDARD, AS IT DID
LATER. WHILE THE EFFECT OF FURNISHING THIS INFORMATION TO BIOMARINE AT
AN EARLY STAGE IN THE PROCUREMENT IS A MATTER OF SPECULATION, IT WOULD
AT LEAST HAVE RENDERED THE PROTESTER'S PROPOSAL THAT UNMANNED TESTS
WOULD BE SUFFICIENT TO QUALIFY FOR THE PROCUREMENT AND THAT MANNED TESTS
BE CONDUCTED IN CONNECTION WITH A FIRST ARTICLE APPROVAL A MORE VIABLE
POSSIBILITY FROM THE STANDPOINT OF TIMELY DELIVERY.
WE NOTE THAT THE DELAY IN APPRISING BIOMARINE OF THE PERFORMANCE
STANDARDS IS SIMILAR TO THE IMPERFECTIONS IN NAVY PROCUREMENT PRACTICES
AND PROCEDURES WE DISCUSSED IN ANOTHER RECENT PROTESTED PROCUREMENT OF
LIFE SUPPORT BREATHING DEVICES. SEE 52 COMP. GEN. 801 (1973).
B-180714, AUG 5, 1974
HEADNOTES-UNAVAILABLE
1. NOTWITHSTANDING THE ABSENCE OF ANY ACTUAL DAMAGES AND ASSESSMENT
OF LIQUIDATED DAMAGES IN EXCESS OF THE VALUE OF THE SERVICES RENDERED OR
GOODS INVOLVED, GOVERNMENT HAS NOT FAILED TO MEET ITS LEGAL DUTY TO
CONSERVE DAMAGES WHERE PROVISION FOR ASSESSMENT OF SUCH DAMAGES WAS THE
ONLY PRACTICAL APPROACH AT THE TIME OF CONTRACT EXECUTION AND THE
SERVICES MAY NOT HAVE BEEN PROCURABLE UPON DEFAULT AT REASONABLE RATES
ON THE OPEN MARKET.
2. GAO FINDS NO EQUITABLE BASIS FOR REMISSION OF LIQUIDATED DAMAGES
UNDER 41 U.S.C. 256(A), WHERE IT IS "ALLEGED" THAT FACTORS BEYOND
CONTRACTOR'S CONTROL MAY HAVE CAUSED DELAY BUT FACTUAL SUPPORT THEREFOR
DOES NOT APPEAR IN RECORD PRESENTED.
3. EVEN THOUGH VALID REASONS MAY EXIST FOR LIMITING PERIOD FOR
ASSESSING LIQUIDATED DAMAGES TO 30 DAYS FOR FUTURE CONTRACTS COVERING
THIS TYPE OF SERVICE, THIS IS A POLICY DETERMINATION OF GENERAL
APPLICATION WHICH OF ITSELF DOES NOT ESTABLISH EQUITIES FOR REMISSION ON
BEHALF OF PAST CONTRACTORS.
DEPARTMENT OF STATE:
THE ASSISTANT SECRETARY FOR ADMINISTRATION, DEPARTMENT OF STATE, IN
ACCORDANCE WITH 41 U.S.C. 256(A) (41 CFR 1-1.315-2(E)), HAS RECOMMENDED
THE PARTIAL REMISSION OF LIQUIDATED DAMAGES ASSESSED AGAINST NEPTUNE
WORLD WIDE MOVING OF VIRGINIA, INCORPORATED (CONTRACT NO. T-45011 - SCC
- 10107): DISTRICT MOVING AND STORAGE, INCORPORATED (CONTRACT NO.
T-19007-SCC-10108) AND DELTA OF VIRGINIA (CONTRACT NO. 0000-300414) FOR
DELAYS IN CONTRACT ERFORMANCE. THE CONTRACTS PROVIDED FOR EXPORT
PACKING AND STORAGE OF HOUSEHOLD EFFECTS OF THE DEPARTMENT'S FOREIGN
SERVICE PERSONNEL.
EACH OF THE CONTRACTS PROVIDED THAT LIQUIDATED DAMAGES WOULD BE
ASSESSED AGAINST THE RESPECTIVE CONTRACTORS FOR FAILURE TO COMPLETE
PERFORMANCE WITH IN THE SPECIFIED TIME PERIOD AT THE RATE OF $25.00 PER
DAY UNTIL THE REQUIRED SERVICES WERE PERFORMED. LIQUIDATED DAMAGES IN
THE AMOUNT OF $23,725 WERE ASSESSED AGAINST THE THREE CONTRACTORS, OF
WHICH THE DEPARTMENT OF STATE RECOMMENDS THAT $3,350 BE REMITTED TO THE
FIRMS. THE LATTER AMOUNT REPRESENTS THE SUM TOTAL OF THE LIQUIDATED
DAMAGES WHICH ACCURED BEYOND THIRTY DAYS FROM THE TIME PERIOD SPECIFIED
FOR THE PERFORMANCE OF THE RESPECTIVE CONTRACTS.
FOR THE REASONS STATED BELOW, WE DO NOT BELIEVE REMISSION SHOULD BE
GRANTED ON THE BASIS OF THE RECORD PRESENTLY BEFORE US.
THE DEPARTMENT'S SUBMISSION CITES OUR DECISION 11 COMP. GEN. 384
(1932) FOR THE PROPOSITION THAT LIQUIDATED DAMAGES SHOULD NOT BE
PERMITTED TO RUN INDEFINITELY AND IT RAISES THE QUESTION OF WHETHER THIS
RULE HAS APPLICATION HERE SINCE IT IS ALLEGED THAT THE DAMAGE
ASSESSMENTS FREQUENTLY EXCEEDED THE VALUE OF THE SERVICES OR THE VALUE
OF THE SHIPMENT ITSELF. THE CITED DECISION, HOWEVER, DISCUSSED A
SITUATION IN WHICH PERFORMANCE WAS READILY PROCURABLE IN THE OPEN MARKET
AND THE CONTRACT NEVERTHELESS PROVIDED FOR ASSESSMENT OF LIQUIDATED
DAMAGES. IT WAS STATED THAT IN SUCH CIRCUMSTANCES LIQUIDATED DAMAGES
SHOULD NOT BE PERMITTED BEYOND THE VALUE OF THE THING PROCURED SINCE A
LEGAL DUTY TO CONSERVE DAMAGES IS RECOGNIZED.
IT IS REPORTED, IN THIS CONNECTION, THAT OPPORTUNITIES TO REPURCHASE
THE TYPE OF SERVICE REQUIRED HERE AT RATES THAT ARE NOT EXORBITANT ARE
UNCOMMON DUE TO ITS EXTREMELY SEASONAL NATURE. MOREOVER, WE ARE ADVISED
THAT THESE CONTRACTS PROVIDE FOR ASSESSMENT OF LIQUIDATED RATHER THAN
ACTUAL DAMAGES INASMUCH AS DAMAGES ARE INCURRED OVERSEAS AND IT IS
IMPRACTICAL TO ASCERTAIN THEM. THUS, IT APPEARS THAT A PROVISION FOR
ASSESSMENT OF LIQUIDATED DAMAGES WAS THE ONLY PRACTICAL APPROACH AT THE
TIME OF CONTRACT EXECUTION AND WE FIND NO FACTS ESTABLISHING THAT THE
GOVERNMENT FAILED TO MEET ITS LEGAL RESPONSIBILITY TO CONSERVE DAMAGES.
RATHER, IT APPEARS THE SERVICES MAY NOT HAVE BEEN PROCURABLE UPON
DEFAULT AT REASONABLE RATES ON THE OPEN MARKET. MOREOVER, WHICH THE
DEPARTMENT IS NOT AWARE OF THE INCURRENCE OF ANY ACTUAL DAMAGES RELATING
TO PERFORMANCE DELAYS, THE VALIDITY OF A LIQUIDATED DAMAGE PROVISION IS
UNAFFECTED BY THIS CIRCUMSTANCE. 36 COMP. GEN. 143, 145 (1956).
IN SUPPORT OF ITS REQUEST FOR EQUITABLE REMISSION, IT IS REPORTED
THAT "DURING THE PAST YEAR THE OCCURRENCE OF SIGNIFICANT WOOD AND PAPER
SHORTAGES ALLEGEDLY CAUSED THESE DAMAGE ASSESSMENTS TO ASSUME
PROPORTIONS THAT FREQUENTLY EXCEEDED THE VALUE OF THE SERVICES PERFORMED
AND, IN SOME CASES, THE GROSS VALUE OF THE SHIPMENT ITSELF." UPON
FURTHER INQUIRY, THE DEPARTMENT HAS ADVISED THAT THERE IS NO ASSERTION,
OR EVIDENCE, OF EXCUSABILITY IN THE CASE OF DISTRICT OR NEPTUNE BUT THAT
DELTA HAS INDICATED ITS INTENTION TO APPEAL THE ASSESSED DAMAGES TO THE
BOARD OF CONTRACT APPEALS ON THE BASIS OF EXCUSABLE DEFAULT OF A
SUBCONTRACTOR FOR PLYWOOD SHORTAGES.
THIS OFFICE EXERCISES ITS AUTHORITY TO REMIT LIQUIDATED DAMAGES, UPON
ADMINISTRATIVE RECOMMENDATION, AS MAY BE JUST AND EQUITABLE, WHEN WE
BELIEVE PERSUASIVE EQUITIES EXIST ON BEHALF OF THE CONTRACTOR. EQUITY,
HOWEVER, DOES NOT RELIEVE ONE FROM THE CONSEQUENCES OF HIS OWN
NEGLIGENCE OR CARELESSNESS. 46 COMP. GEN. 252, 256 (1966_. WHILE IT
HAS BEEN "ALLEGED" THAT FACTORS OUTSIDE THE CONTROL OF ONE CONTRACTOR
MAY HAVE CAUSED SOME OF THE DELAY, THERE HAS NOT BEEN PRESENTED HERE ANY
FACTUAL SUPPORT FOR THIS ALLEGATION.
THE DEPARTMENT ALSO ADVISES THAT A DECISION HAS BEEN MADE TO LIMIT
THE PERIOD FOR ASSESSING LIQUIDATED DAMAGES IN ALL NEW CONTRACTS TO A
MAXIMUM OF 30 DAYS AND CONSISTENT WITH THIS DECISION, REMISSION IS
RECOMMENDED IN THE INSTANT CONTRACTS TO THE EXTENT THAT PERIODS IN
EXCESS OF 30 DAYS ARE INVOLVED. IN OUR OPINION, EVEN THOUGH VALID
REASONS ANY EXIST FOR LIMITING IN THE FUTURE THE PERIOD FOR ASSESSING
LIQUIDATED DAMAGES FOR THIS TYPE OF SERVICE, THIS IS A POLICY
DETERMINATION OF GENERAL APPLICATION WHICH OF ITSELF DOES NOT ESTABLISH
EQUITIES FOR REMISSION ON BEHALF OF THE INSTANT CONTRACTORS.
ACCORDINGLY, IT IS OUR OPINION THAT NO ADEQUATE BASIS HAS BEEN
PRESENTED TO SUPPORT A DETERMINATION BY THIS OFFICE THAT JUSTICE AND
EQUITY WOULD BE SERVED BY REMISSION IN THIS CASE.
B-180733, AUG 5, 1974
HEADNOTES-UNAVAILABLE
THE DISALLOWANCE OF THE CLAIMS OF A HEAVY AND SPECIALIZED COMMON
CARRIER ARISING FROM WEEKEND AND HOLIDAY SHIPMENTS OF COMMODITIES WHICH
BECAUSE OF SIZE REQUIRE SPECIAL PERMITS FOR TRANSPORTATION 22 MILES FROM
NEW JERSEY TO NEW YORK IS SUSTAINED BECAUSE BURDEN IS ON CARRIER TO
PROVE LEGALITY OF ITS CHARGES AND CARRIER PRESENTED CONTRADICTORY PROOF
THAT SHIPMENTS WERE IN TRANSIT OVER WEEKEND.
ULTRA SPECIAL EXPRESS:
ULTRA SPECIAL EXPRESS (ULTRA), A DIVISION OF TAYLOR SERVICES, INC.,
REQUESTS REVIEW OF THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION
(TCD) IN DISALLOWING 12 OF ITS CLAIMS ON 12 SETTLEMENT CERTIFICATES
DATED JANUARY 14, 15, OR FEBRUARY 15, 1974. THE TCD CLAIM NUMBERS ARE
TK-967660, TK-967655, TK-967657, TK-967625, TK-967659, TK-968361, AND
TK-968362.
THE CLAIMS ARISE FROM 12 SHIPMENTS OF COMMODITIES WHICH BECAUSE OF
THEIR SIZE REQUIRED SPECIAL PERMITS FROM VARIOUS STATES FOR
TRANSPORTATION THROUGH THOSE STATES. THE SHIPMENTS WERE TRANSPORTED BY
ULTRA UNDER GOVERNMENT BILL OF LADING (GBL) AND WERE IN TRANSIT DURING A
SATURDAY, SUNDAY, OR A HOLIDAY.
THE TCD HAS BEEN INSTRUCTED TO REOPEN AND REEXAMINE THE SETTLEMENT
CERTIFICATES ISSUED IN CLAIM NOS. TK-967660, TK-967655, TK-967657,
TK-967625, AND TK-967659 AND TO ALLOW THE AMOUNTS CLAIMED, IF OTHERWISE
CORRECT. ULTRA SHOULD GET NOTICE OF THE SETTLEMENTS IN DUE COURSE.
CLAIM NOS. TK-968361 AND TK-968362 INVOLVE SHIPMENTS ON GBLS NOS.
F-9109968 AND F-9109971 MOVING UNDER PERMITS. THE SHIPMENTS WERE PICKED
UP ON THURSDAY, DECEMBER 30, 1971, AND ULTRA ORIGINALLY COLLECTED
WEEKEND AND HOLIDAY CHARGES FOR THE PERIOD JANUARY 1-2, 1972, AS
DELIVERY WAS ACCOMPLISHED MONDAY, JANUARY 3, 1972. THE TCD DETERMINED
THAT SINCE THE SHIPMENTS MOVED FROM BAYONNE, NEW JERSEY, TO FORT TILDEN,
NEW YORK, A DISTANCE OF ONLY 22 MILES, THE MOVES COULD HAVE BEEN
ACCOMPLISHED BY DECEMBER 31, 1971, AT THE LATEST, OBVIATING THE WEEKEND
DELAY. OVERCHARGE NOTICES WERE ISSUED FOR $405 ON EACH SHIPMENT. THE
OVERCHARGES ARE FOR THE ENTIRE HOLIDAY AND WEEKEND PENALTY CHARGES
COLLECTED BY ULTRA FOR EACH SHIPMENT, UNDER ITEMS 1350, 1450, AND 1680
OF THE APPLICABLE TARIFF. ULTRA'S CLAIMS FOR $219.30 AND $220 ON THE
TWO SHIPMENTS ARE FOR SERVICES PERFORMED ON DECEMBER 31, 1971, WHICH
ULTRA CONTENDS WAS A HOLIDAY BECAUSE NEW YEAR'S DAY, 1972, FELL ON
SATURDAY. THE CLAIMS REGARD BOTH FRIDAY, DECEMBER 31, AND SATURDAY,
JANUARY 1, AS HOLIDAYS FOR RATING PURPOSES.
NEW JERSEY PERMITS T23156 AND T23157 SHOW THAT TRANSPORTATION OF THE
SHIPMENTS WAS ALLOWED ON DECEMBER 29, 30, AND 31, 1971. THERE IS A
CONFLICT BETWEEN THE PERMITS AND THE REGULATIONS IN THE NEW JERSEY
REGISTER. THE REGULATIONS PROHIBIT THE ISSUANCE OF PERMITS FOR
TRANSPORTATION ON FRIDAY, DECEMBER 31, 1971, BUT THE PERMITS
SPECIFICALLY ALLOW SUCH TRANSPORTATION.
THIS UNDERSCORES THE FUNDAMENTAL INCONSISTENCY OF ULTRA'S ARGUMENT:
SINCE THE NEW JERSEY PERMITS EXPIRED DECEMBER 31, 1971, ULTRA, IN
CONTENDING THAT TRANSPORTATION WAS FORBIDDEN ON THAT DAY BY REGULATION,
WOULD HAVE HAD TO MOVE THE SHIPMENTS OUT OF NEW JERSEY ON DECEMBER 30.
BUT ULTRA CONTENDS THAT NEW YORK WOULD NOT ALLOW OPERATION ON EITHER
DECEMBER 30 OR 31, THE LATTER ALLEGED TO BE A HOLIDAY AND THE FORMER THE
DAY BEFORE THAT HOLIDAY. THE NEW YORK STATE PERMIT REGULATIONS INDICATE
ONLY THAT "THE DAY PREVIOUS OR THE DAY FOLLOWING MEMORIAL DAY,
INDEPENDENCE DAY AND LABOR DAY" ARE SO RESTRICTED WITH NO MENTION OF NEW
YEAR'S DAY.
THE RECORD OF PERMITS AND REGULATIONS SUBMITTED BY ULTRA CONTAINS
CONTRADICTORY EVIDENCE OF VEHICLE MOVEMENT. BASED ON THAT RECORD, WE
CONCLUDE THAT THE SHIPMENTS COULD NOT HAVE MOVED LEGALLY ON THE DAYS
CLAIMED BY ULTRA. FURTHERMORE, THERE IS NO EVIDENCE THAT THE SHIPMENTS
ACTUALLY MOVED ON SPECIAL PERMITS IN NEW YORK STATE, AND THE APPLICATION
OF ITEM 1450 HINGES ON THE FACT OF "BEING TRANSPORTED UNDER SPECIAL
PERMITS," NOT THE DIMENSIONS OF THE SHIPMENT NOR THE SUPPOSED NEED FOR
PERMITS. ULTRA HAS NEVER FURNISHED COPIES OF THE PERMITS.
THE BURDEN IS ON ULTRA TO PROVE THE LAWFULNESS OF ITS CHARGES.
UNITED STATES V. NEW YORK, N.H. & H. R.R., 355 U.S. 253 (1955), AND
ULTRA HAS NOT MET THAT BURDEN. THUS, BASED ON THE PRESENT RECORD, THE
ACTION OF THE TCD IN ISSUING THE TWO NOTICES OF OVERCHARGE FOR $405 AND
IN DISALLOWING THE CLAIMS FOR $219.30 AND $220 WAS PROPER AND IS
SUSTAINED.
B-181820, AUG 5, 1974
HEADNOTES-UNAVAILABLE
WHERE PROTESTER WAS INFORMED BY LETTER DATED JUNE 28, 1974 (AND
PROTESTER ACKNOWLEDGES IT WAS PROBABLY RECEIVED ON JUNE 29, 1974) THAT
THE NAVAL REGIONAL PROCUREMENT OFFICE EXERCISED AN OPTION UNDER EXISTING
CONTRACT, PROTEST RECEIVED BY GAO ON JULY 16, 1974, WAS UNTIMELY AND
WILL NOT BE CONSIDERED SINCE UNDER SECTION 20.2(A) OF GAO INTERIM BID
PROTEST PROCEDURES AND STANDARDS PROTEST MUST BE FILED WITHIN 5 DAYS
AFTER BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS
EARLIER.
ALDERSON REPORTING COMPANY, INCORPORATED:
THIS PROTEST INVOLVES CONTRACT NO. N00600-74-D-0653 BETWEEN THE NAVAL
SUPPLY SYSTEMS COMMAND AND THE ACME REPORTING COMPANY FOR THE
STENOGRAPHIC REPORTING OF THE HEARINGS OF THE ARMED SERVICES BOARD OF
CONTRACT APPEALS (THE BOARD), WHICH EXPIRED ON JUNE 30, 1974.
HOWEVER, THE CONTRACT CONTAINED AN OPTION TO RENEW CLAUSE, AND ON
APRIL 30, 1974, THE PROTESTER, ALDERSON REPORTING COMPANY, INCORPORATED
(ALDERSON), NOTIFIED THE BOARD THAT IT WAS PREPARED TO BID A RATE FOR
THE NEXT FISCAL YEAR AT LESS THAN THE OPTION RATES UNDER THE THEN
CURRENT CONTRACT. ON JUNE 3, 1973, THE PROTESTER WROTE THE NAVAL
REGIONAL PROCUREMENT OFFICE STATING ITS INTENTION TO SUBMIT A BID
SUBSTANTIALLY LESS THAN THE OPTION RATES FOR FISCAL YEAR 1975 AND
STATING THAT PROVISIONS IN THE GAO CONTRACTING MANUAL REQUIRED THE
GOVERNMENT NOT TO EXERCISE ITS OPTION "*** WHERE A LESSOR RATE IS
GUARANTEED BY A REPORTING CONTRACTOR ***."
BY LETTER DATED JUNE 28, 1974, THE NAVAL REGIONAL PROCUREMENT OFFICE
NOTIFIED ALDERSON THAT THE GOVERNMENT EXERCISED THE OPTION UNDER
CONTRACT N00600-74-D-0653 ON JUNE 5, 1974. THE NAVY STATED THAT SINCE
THE DETERMINATION WAS MADE THAT PRICE AND OTHER FACTORS CONSIDERED THE
OPTION WAS MOST ADVANTAGEOUS TO THE GOVERNMENT, THE OPTION WAS EXERCISED
IN ACCORDANCE WITH ASPR 1-1505(C) AND 1-1505(D)(3). ALDERSON, BY LETTER
DATED JULY 10, 1974, AND RECEIVED IN THIS OFFICE JULY 16, 1974, PROTESTS
THE EXERCISE OF THE OPTION AND CONTENDS THAT ASPR 1-1505(C) AND (D)(3),
VARIOUS COMPTROLLER GENERAL DECISIONS, AND THE GAO CONTRACT MANUAL
REQUIRE THE SOLICITATION OF COMPETITION IN THESE CIRCUMSTANCES.
THE INTERIM BID PROTEST PROCEDURES AND STANDARDS OF OUR OFFICE
(SECTION 20.2(A) OF TITLE 4 OF THE CODE OF FEDERAL REGULATIONS) REQUIRE
THAT BID PROTESTS BE FILED IN OUR OFFICE NOT LATER THAN 5 DAYS AFTER THE
BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS
EARLIER. HERE THE BASIS OF THE PROTEST, THE FACT THAT THE GOVERNMENT
WOULD EXERCISE THE OPTION UNDER THE EXISTING CONTRACT WAS MADE KNOWN TO
ALDERSON BY LETTER OPTION UNDER THE EXISTING CONTRACT WAS MADE KNOWN TO
ALDERSON BY LETTER DATED JUNE 28, 1974. WE HAVE BEEN INFORMED BY THE
PRESIDENT OF ALDERSON THAT THEY PROBABLY RECEIVED THAT LETTER ON JUNE
29, 1974. THEREFORE, THE PROTEST WAS REQUIRED TO BE RECEIVED IN OUR
OFFICE NOT LATER THAN JULY 8, 1974. SINCE THE PROTEST WAS NOT RECEIVED
HERE UNTIL JULY 16, 1974, IT WAS UNTIMELY FILED AND WILL NOT BE
CONSIDERED BY OUR OFFICE. B-177158, OCTOBER 25, 1972.
B-181007, AUG 2, 1974
HEADNOTES-UNAVAILABLE
1. WHERE IT IS IMPRACTICAL FOR A TRANSFERRED EMPLOYEE MOVING A
MOBILE HOME TO MOVE THE CEMENT BLOCKS AND HE PURCHASES NEW BLOCKS AT THE
NEW LOCATION, THE COST OF THE NEW BLOCKS IS ALLOWABLE AS A MISCELLANEOUS
EXPENSE SINCE IT IS AN EXPENSE RELATED TO UNBLOCKING AND BLOCKING UNDER
SECTION 3.1B(2) OF OMB CIRCULAR NO. A-56. SEE B-175285, APRIL 20, 1972.
2. WHERE A TRANSFERRED EMPLOYEE MOVING A MOBILE HOME PURCHASES NEW
SKIRTING RATHER THAN MOVE THE OLD SKIRTING, THE COST IS NOT ALLOWABLE AS
A MISCELLANEOUS EXPENSE BECAUSE IT REPRESENTS THE COST OF NEWLY ACQUIRED
ITEMS FOR WHICH PAYMENT IS NOT ALLOWED UNDER SECTION 3.1C(13) OF OMB
CIRCULAR NO. A-56. SEE B-176476, AUGUST 21, 1972.
ROGER W. MOORE - MISCELLANEOUS EXPENSES IN MOVING MOBILE HOME:
AN AUTHORIZED CERTIFYING OFFICER FOR THE NATIONAL FINANCE CENTER,
DEPARTMENT OF AGRICULTURE, HAS REQUESTED A DECISION IN A LETTER DATED
APRIL 2, 1974, AS TO WHETHER THE COSTS OF NEW CEMENT BLOCKS AND NEW
SKIRTING MATERIAL FOR A MOBILE HOME ARE REIMBURSABLE TO A TRANSFERRED
EMPLOYEE AS MISCELLANEOUS EXPENSES ASSOCIATED WITH RELOCATION IN
CONNECTION WITH A TRANSFER.
MR. ROGER W. MOORE WAS TRANSFERRED FROM MICHIGAN TO PENNSYLVANIA IN
NOVEMBER OF 1972. HE CLAIMED REIMBURSEMENT OF MISCELLANEOUS EXPENSES IN
THE AMOUNT OF $364.99 UNDER OFFICE OF MANAGEMENT AND BUDGET (OMB)
CIRCULAR NO. A-56, SECTION 3.1, FOR WHICH HE SUBMITTED RECEIPTS. THE
AGENCY DISALLOWED ITEMS TOTALING $184.29 AND PAID THE EMPLOYEE THE $200
TO WHICH HE WAS ENTITLED UNDER SECTION 3.3A(2) ABSENT EVIDENCE OF
ALLOWABLE EXPENSES IN EXCESS OF SUCH AMOUNT. THE EMPLOYEE HAS SUBMITTED
A RECLAIM VOUCHER FOR THE DISALLOWED AMOUNT WHICH IS THE TOTAL OF TWO
EXPENSE ITEMS INCURRED BY MR. MOORE INCIDENT TO THE RELOCATION OF HIS
MOBILE HOME. THE EMPLOYEE STATES IT WAS NOT FEASIBLE TO TRANSPORT
CEMENT BLOCKS USED TO BLOCK THE HOME OR THE OLD SKIRTING, THE MATERIAL
USED TO COVER THE SPACE FROM THE BOTTOM OF THE MOBILE HOME TO THE
GROUND. HE RECLAIMS THE PURCHASE PRICE OF NEW CEMENT BLOCKS, $36.04,
AND NEW SKIRTING MATERIAL, $148.25. A DECISION IS REQUESTED AS TO
WHETHER THESE ITEMS MAY BE CERTIFIED FOR PAYMENT AS MISCELLANEOUS
EXPENSES.
WE HAD OCCASION TO CONSIDER THE QUESTION OF THE PURCHASE OF NEW
CEMENT BLOCKS IN OUR DECISION B-175285, APRIL 20, 1972. WE HELD THAT IT
WAS ALLOWABLE AS A MISCELLANEOUS EXPENSE RELATED TO UNBLOCKING AND
BLOCKING THE HOUSE TRAILER IN CONNECTION WITH ITS RELOCATION PROVIDED BY
SECTION 3.1B(2) BECAUSE IT APPEARED THAT IT WAS NOT FEASIBLE TO
TRANSPORT THE OLD BLOCKS. THEREFORE, THE EMPLOYEE MAY BE ALLOWED
REIMBURSEMENT FOR THE COST OF THE CEMENT BLOCKS.
IN THE CASE OF THE SKIRTING, THE EMPLOYEE CONTENDS THAT IT WAS NOT
FEASIBLE TO TRANSPORT THE OLD SKIRTING BECAUSE OF ITS SIZE AND WEIGHT,
THE POSSIBILITY THAT IT MIGHT CAUSE DAMAGE IF IT WERE TRANSPORTED IN THE
TRAILER, AND ITS UNSUITABILITY FOR USE AT THE NEW LOCATION DUE TO
TOPOGRAPHICAL DIFFERENCES BETWEEN THE OLD AND THE NEW SITES. HOWEVER,
THE REGULATIONS DO NOT COVER THE COST OF NEW FURNISHINGS OR EQUIPMENT
USED IN REMODELING OR MODIFYING LIVING QUARTERS. SEE SECTION 3.1C(13)
OF CIRCULAR NO. A-56. THEREFORE, MR. MOORE MAY NOT BE REIMBURSED THE
COSTS OF THE NEW SKIRTING MATERIAL. B-176476, AUGUST 21, 1972.
ACCORDINGLY, MR. MOORE'S RECLAIM VOUCHER MAY BE CERTIFIED FOR PAYMENT
TO THE EXTENT THAT THE TOTAL OF ITEMS FOR WHICH RECEIPTS HAVE BEEN
OBTAINED, INCLUDING THE CEMENT BLOCKS, EXCEEDS THE $200 PREVIOUSLY
ALLOWED.
B-181031, AUG 2, 1974
HEADNOTES-UNAVAILABLE
1. QUESTION CONCERNING QUALIFICATIONS OF PROSPECTIVE CONTRACTOR IS
PRIMARILY FOR DETERMINATION BY PROCUREMENT OFFICERS CONCERNED, AND IN
ABSENCE OF SHOWING OF BAD FAITH OR LACK OF REASONABLE BASIS FOR
DETERMINATION, GAO WILL NOT OBJECT TO DETERMINATION MADE BY
ADMINISTRATIVE AGENCY.
2. FAILURE TO ARRANGE FOR FACILTIES FOR FIRST ARTICLE TESTING, WHEN
REQUIRED TO DO SO BY SOLICITATION, IS PROPER BASIS FOR RECOMMENDING NO
AWARD, AND RELIANCE ON NEGATIVE PREAWARD SURVEY BY CONTRACTING OFFICER
IN MAKING DETERMINATION OF NONRESPONSIBILITY IS NOT LEGALLY SUBJECT TO
QUESTION BY GAO.
KINGS POINT MACHINERY:
ON JULY 19, 1973, INVITATION FOR BIDS (IFB) NO. N00104-74-B-0043 WAS
ISSUED BY THE UNITED STATES NAVY SHIPS PARTS CONTROL CENTER,
MECHANICSBURG, PENNSYLVANIA, FOR THE PURCHASE OF 21 LAUNDRY DRYING
TUMBLERS. BID OPENING, AS AMENDED, TOOK PLACE ON AUGUST 24, 1973. THE
FOUR BIDS RECEIVED (LOWEST TO HIGHEST) WERE AS FOLLOWS:
HOYT MANUFACTURING CORP. (HOYT)
KINGS POINT MACHINERY (KINGS POINT)
W.M. CISSELL MANUFACTURING COMPANY (CISSELL)
AMERICAN LAUNDRY MACHINERY (AMERICAN)
HOYT WAS REJECTED AS BEING NONRESPONSIVE PURSUANT TO ARMED SERVICES
PROCUREMENT REGULATION (ASPR) 2-404.2(B) SINCE IT TOOK EXCEPTION TO THE
REQUIREMENT FOR FURNISHING A FIRE EXTINGUISHER VALVE AND MANUAL
TEMPERATURE CONTROLS AS REQUIRED BY SECTION "F" OF THE IFB.
KINGS POINT, BEING THE NEXT RESPONSIVE BIDDER, A PREAWARD SURVEY WAS
PERFORMED ON IT ON OCTOBER 10, 1973, BY THE DEFENSE CONTRACT
ADMINISTRATION SERVICES REGION (DCASR), BURLINGAME, CALIFORNIA. THE
PREAWARD SURVEY RECOMMENDED THAT NO AWARD BE MADE TO KINGS POINT DUE TO
RATINGS OF UNSATISFACTORY IN BOTH PRODUCTION CAPABILITY AND ABILITY TO
MEET REQUIRED DELIVERY SCHEDULE FACTORS.
THE NEGATIVE PREAWARD SURVEY RESULTED FROM THE LACK OF PLANNED
IN-HOUSE PRODUCTION AND AN INABILITY TO ESTABLISH A SOURCE FOR NECESSARY
FIRST ARTICLE TESTING.
THE CONSIDERATION OF THE BIDS RESULTED IN ADMINISTRATIVE DELAYS
EXTENDING TO MORE THAN THREE MONTHS. BECAUSE OF THESE DELAYS, A SECOND
REQUEST FOR A PARTIAL, UPDATED SURVEY WAS REQUESTED ON JANUARY 23, 1974.
THIS SECOND PREAWARD SURVEY REVEALED THE SAME UNSATISFACTORY FACTORS AT
KINGS POINT, THUS RESULTING IN A SECOND NEGATIVE DETERMINATION. THIS
SECOND SURVEY RECOMMENDED NO AWARD TO KINGS POINT BASED ON
UNSATISFACTORY FACTORS OF QUALITY ASSURANCE CAPABILITY, PERFORMANCE
RECORD, AND ABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE. AGAIN, THE
NEGATIVE DETERMINATION WAS MADE PRIMARILY BECAUSE KINGS POINT HAD FAILED
TO MAKE ARRANGEMENTS FOR FIRST ARTICLE TESTING.
GIVEN THIS SET OF CIRCUMSTANCES, A CERTIFICATE OF URGENCY WAS
PREPARED ON FEBRUARY 25, 1974, IN SUPPORT OF A DETERMINATION THAT AWARD
SHOULD BE MADE IMMEDIATELY WITHOUT REFERRAL TO THE SMALL BUSINESS
ADMINISTRATION (SBA) FOR PROCESSING OF A CERTIFICATE OF COMPETENCY. SBA
WAS APPRISED OF THE NECESSITY TO AWARD A CONTRACT ON FEBRUARY 27.
THEREAFTER, CISSELL, BEING THE LOW RESPONSIVE AND RESPONSIBLE BIDDER,
WAS AWARDED THE CONTRACT ON MARCH 4, 1974.
UPON NOTIFICATION OF BEING FOUND NONRESPONSIBLE, KINGS POINT
PROTESTED TO OUR OFFICE. IT IS KINGS POINT'S CONTENTION THAT IT IS IN
FACT A RESPONSIBLE CONTRACTOR, AND THAT ARRANGEMENTS COULD HAVE BEEN
MADE AT ANY TIME FOR FIRST ARTICLE TESTING, HAD IT BEEN KNOWN THAT THESE
ARRANGEMENTS WERE A PREREQUISITE FOR AWARD.
REGARDING THE FINDING OF NONRESPONSIBILITY, OUR OFFICE HAS
CONSISTENTLY TAKEN THE POSITION THAT THE QUESTION AS TO THE
QUALIFICATIONS OF A PROSPECTIVE CONTRACTOR PRIMARILY IS FOR
DETERMINATION BY THE PROCUREMENT OFFICERS CONCERNED AND IN THE ABSENCE
OF ANY SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR THE
DETERMINATION, WE ARE NOT REQUIRED TO OBJECT TO THE DETERMINATION MADE
BY THE ADMINISTRATIVE AGENCY. B-177217, JUNE 26, 1973.
AS CONCERNS THE FIRST ARTICLE TEST REQUIREMENT, SECTION C-9 OF THE
IFB SPECIFICALLY APPRISED ALL BIDDERS OF THE NEED FOR FIRST ARTICLE
TESTING. KINGS POINT, AWARE OF THIS REQUIREMENT, INCLUDED IN ITS BID
PRICE A $500 AMOUNT TO COVER ANY FIRST ARTICLE TESTING REQUIRED.
HOWEVER, WHEN THE INITIAL PREAWARD SURVEY WAS CONDUCTED, KINGS POINT HAD
NOT YET MADE ANY ARRANGEMENTS FOR FIRST ARTICLE TESTING EITHER AT ITS
OWN OR OTHER FACILITIES.
WHEN KINGS POINT WAS AGAIN SURVEYED IN FEBRUARY OF 1974, STILL NO
ARRANGEMENTS FOR FIRST ARTICLE TESTING HAD BEEN MADE. KINGS POINT'S
RESPONSE WAS THAT IF FIRST ARTICLE TESTING WAS NECESSARY, IT WOULD BE
SUBCONTRACTED TO A TESTING FACILITY. MOREOVER, THERE WAS NO AVAILABLE
DOCUMENTATION AS TO THE PRESENCE OR ADEQUACY OF NECESSARY TEST EQUIPMENT
AT THE PROPOSED TEST SUBCONTRACTOR. NOR COULD THE NAME OF A SPECIFIC
INDIVIDUAL AT THE PROPOSED SUBCONTRACTOR BE PROVIDED TO VERIFY THESE
ARRANGEMENTS.
ON THE BASIS OF OUR REVIEW OF THE RECORD AND CONSIDERATION OF THE
INFORMATION RELIED UPON BY THE CONTRACTING OFFICER IN MAKING HIS
DETERMINATION OF KINGS POINT'S LACK OF RESPONSIBILITY, WE FIND NO BASIS
UPON WHICH TO LEGALLY OBJECT TO THE ACTION TAKEN.
ACCORDINGLY, THE PROTEST OF KINGS POINT IS DENIED.
B-181042, AUG 2, 1974
HEADNOTES-UNAVAILABLE
BIDDER FAILED TO SUBMIT SPECIFIED INFORMATION BY DATE SET IN IFB,
WHICH WAS ALMOST MONTH BEFORE BID OPENING DATE, BUT RATHER SUBMITTED
INFORMATION WITH BID. THIS FAILURE IS NOT FATAL TO CONSIDERATION OF BID
AND MAY BE WAIVED, IN VIEW OF FACT THAT REQUIREMENT IS FOR PURPOSE OF
DETERMINING BIDDER'S CAPACITY OR RESPONSIBLITY RATHER THAN FOR
DETERMINING WHETHER PROPERTY OR SERVICES OFFERED CONFORM TO GOVERNMENT'S
NEEDS AS STATED IN IFB, SINCE BIDDER'S CAPACITY OR RESPONSIBILITY MAY BE
DETERMINED ON BASIS OF INFORMATION SUBMITTED AFTER BID OPENING.
STARR ELECTRIC COMPANY:
ON FEBRUARY 13, 1974, THE GENERAL SERVICES ADMINISTRATION (GSA)
ISSUED AN INVITATION FOR BIDS (IFB) FOR PROJECT NO. DC4-320113, PHASE I
AND II-E FOR THE ELECTRICAL WORK IN THE CONSTRUCTION OF THE FEDERAL
BUILDING AND UNITED STATES COURTHOUSE, WINSTON-SALEM, NORTH CAROLINA,
WITH THE BID OPENING SET FOR MARCH 20, 1974. GSA STATES THAT:
"CONSTRUCTION OF THIS PROJECT IS BEING UNDERTAKEN BY THE 'FAST TRACK'
METHOD IN ORDER TO EXPEDITE COMPLETION. UNDER THIS METHOD, THE DESIGN
IS DEVELOPED IN SUCH FASHION THAT PORTIONS OF THE WORK CAN BE PUT UNDER
CONTRACT AND PERFORMANCE CAN BEGIN WHILE DESIGN GOES FORWARD.
ADDITIONAL WORK IS PUT UNDER CONTRACT AS DESIGN PERMITS. THE TOTAL TIME
FOR DESIGN AND CONSTRUCTION IS SUBSTANTIALLY LESS THAN WHEN THE
CONVENTIONAL METHOD OF COMPLETING ALL DESIGN, THEN CONTRACTING FOR
CONSTRUCTION OF THE ENTIRE FACILITY IS USED."
CONSEQUENTLY, IN ORDER TO REDUCE THE TIME SPENT QUALIFYING THE
SUCCESSFUL BIDDER AND AWARDING THE CONTRACT, THE IFB REQUIRED ALL
PROSPECTIVE BIDDERS TO SUBMIT NO LATER THAN FEBRUARY 22, 1974, I.E.
ALMOST A MONTH PRIOR TO BID OPENING, CERTAIN SPECIFIED INFORMATION
REGARDING THE BIDDERS' QUALIFICATIONS. THE SPECIFIED INFORMATION TO BE
SUBMITTED INCLUDED:
(1) GSA FORM 527, "CONTRACTORS QUALIFICATIONS AND FINANCIAL
INFORMATION."
(2) STANDARD FORM 19-B, "REPRESENTATIONS AND CERTIFICATIONS."
(3) EQUAL EMPLOYMENT OPPORTUNITY (EEO) CLEARANCE MATERIAL.
(A) EEO AFFIRMATIVE ACTION PLAN
(B) COMPLETED FORM, "EEO COMMITMENT UNDER EXECUTIVE ORDER 11246."
(C) NARRATIVE OF COMPANY EEO POLICY
(D) LIST OF GOVERNMENT CONTRACTS
(E) LIST OF CURRENT EMPLOYEES
(4) LETTER FROM APPROVED BONDING COMPANY CERTIFYING PERFORMANCE BOND
AVAILABILITY.
WITH REGARD TO THIS LISTED INFORMATION, THE IFB STATES:
"(C) THE ABOVE SUBMISSIONS ARE REQUIRED SO THAT DETERMINATIONS AS TO
THE RESPONSIBILITY OF EACH PROSPECTIVE BIDDER MAY BE MADE IN ADVANCE OF
BID OPENING. ACCORDINGLY, A BIDDER'S FAILURE TO SUBMIT THE INFORMATION
REQUIRED BY THE TIME AND DATE SET FORTH IN (A) ABOVE MAY RENDER THE
BIDDER INELIGIBLE FOR AWARD."
ON MARCH 20, 1974, THE FOLLOWING BIDS WERE RECEIVED AND OPENED:
FISCHBACH AND MOORE, INC. (F&M) $ 797,000
WATSON ELECTRICAL CONSTRUCTION COMPANY (WATSON) 896,842
STARR ELECTRIC COMPANY, INC. (STARR) 902,750
SALEM ELECTRIC COMPANY 994,000
BRYANT ELECTRIC COMPANY, INC. 1,037,000
RICHARDS & ASSOCIATES, INC. 1,176,895
HOWEVER, F&M'S BID WAS PROPERLY DECLARED NONRESPONSIVE BY THE
PROCURING ACTIVITY, SINCE ITS BID SPECIFICALLY EXCLUDED CERTAIN WORK
REQUIRED UNDER THE IFB. WATSON DID NOT SUBMIT THE "PREQUALIFICATION
INFORMATION" SPECIFIED ABOVE BY FEBRUARY 22, 1974, BUT RATHER SUBMITTED
THIS INFORMATION WITH ITS BID.
BY LETTER DATED APRIL 5, 1974, COUNSEL FOR STARR PROTESTED TO OUR
OFFICE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER THIS IFB. STARR
CONTENDS THAT WATSON DID NOT COMPLY WITH THE IFB REQUIREMENT CONCERNING
THE SUBMITTAL OF "PREQUALIFICATION INFORMATION" AND, THEREFORE, WATSON'S
BID WAS NONRESPONSIVE.
HOWEVER, GSA CONTENDS THAT INASMUCH AS THIS "PREQUALIFICATION
INFORMATION" ONLY CONCERNS BIDDER RESPONSIBILITY, WATSON'S FAILURE TO
SUBMIT THIS INFORMATION BY FEBRUARY 22, 1974, DID NOT RENDER ITS BID
NONRESPONSIVE. THEREFORE, IN VIEW OF THIS DETERMINATION AND SINCE IT
WAS DETERMINED THAT PROMPT AWARD OF THIS CONTRACT WAS ESSENTIAL TO
INSURE TIMELY PERFORMANCE BY THE OTHER CONTRACTORS PRESENTLY WORKING ON
THE PROJECT, GSA WAIVED WATSON'S FAILURE TO TIMELY SUBMIT THE
"PREQUALIFICATION INFORMATION" AND AWARDED THE CONTRACT TO WATSON ON
JUNE 10, 1974.
WE HAVE CONSISTENTLY HELD THAT WHERE THE REQUIREMENT FOR THE
SUBMISSION OF DATA IS FOR THE PURPOSE OF DETERMINING THE CAPACITY OR
RESPONSIBILITY OF A BIDDER RATHER THAN WHETHER THE PROPERTY OR SERVICES
OFFERED CONFORM TO THE GOVERNMENT'S NEEDS AS STATED IN THE SOLICITATION,
THE FAILURE OF THE BIDDER TO SUBMIT DATA IN ACCORDANCE WITH THE
SOLICITATION'S DATA SUBMISSION REQUIREMENTS IS NOT FATAL TO THE
CONSIDERATION OF ITS BID, INASMUCH AS A BIDDER'S CAPACITY OR
RESPONSIBILITY MAY BE DETERMINED ON THE BASIS OF INFORMATION SUBMITTED
AFTER THE BID OPENING. 39 COMP. GEN. 247 (1959); ID. 881 (1960); 41
COMP. GEN. 106 (1961); ID. 555 (1962); 48 COMP. GEN. 158 (1968); 49
COMP. GEN. 553 (1970); B-176391, DECEMBER 4, 1972. SUCH FAILURE TO
SUBMIT DATA CONCERNING BIDDER RESPONSIBILITY MAY BE WAIVED EVEN WHERE
THE SOLICITATION WARNS THAT THE FAILURE TO CONFORM MAY RESULT IN BID
REJECTION. 39 COMP. GEN. 881; 41 COMP. GEN. 106. IN THE PRESENT CASE,
IT IS CLEAR THAT ALL OF THE REQUESTED "PREQUALIFICATION INFORMATION"
CONCERNS BIDDER CAPACITY OR RESPONSIBILITY.
THEREFORE, WE BELIEVE GSA ACTED PROPERLY IN AWARDING THE CONTRACT TO
WATSON. ACCORDINGLY, STARR'S PROTEST IS DENIED.
B-181749, AUG 2, 1974
HEADNOTES-UNAVAILABLE
DENIAL OF CLAIM BY TRANSPORTATION AND CLAIMS DIVISION IS SUSTAINED AS
GAO HAS NO JURISDICTION TO ACT ON CLAIM FOR COPYRIGHT INFRINGEMENT
AGAINST OTHER THAN GOVERNMENT AGENCIES.
J.E. MULLINS:
MR. J.E. MULLINS STATES THAT SOME YEARS AGO HE NOTIFIED THIS OFFICE
THAT A FEDERAL DISTRICT COURT HAD FAILED TO ISSUE TO HIM FUNDS FOR A
COPYRIGHT INFRINGEMENT CLAIM AGAINST PARAMOUNT PICTURES CORPORATION
WHICH HE HAD PRESENTED TO THE COURT.
OUR RECORDS SHOW THAT ON JANUARY 15, 1944, SUBSEQUENT TO THE COURT'S
RETURN OF THE MULLINS' CLAIM HE WROTE THE UNITED STATES TREASURY
DEPARTMENT REQUESTING PAYMENT OF HIS CLAIM. THE TREASURY DEPARTMENT
FORWARDED HIS LETTER TO OUR OFFICE. ON FEBRUARY 19, 1945, THIS OFFICE
ADVISED MR. MULLINS THAT SINCE THE MATTER HAD BEEN PLACED BEFORE THE
COURTS WE COULD TAKE NO ACTION. ON JUNE 10, 1952, IN RESPONSE TO
FURTHER INQUIRIES FROM MR. MULLINS, WE ADVISED THAT THE MATTER OF THE
COMPENSATION ALLEGEDLY DUE HIM FOR COPYRIGHT INFRINGEMENT WAS NOT FOR
CONSIDERATION BY THIS OFFICE. RATHER, WE ADVISED THAT THE MATTER WAS TO
BE CONSIDERED BY THE COURT IN WHICH SUIT HAD BEEN FILED, AND THAT ANY
ADVERSE ACTION BY THE COURT WAS NOT SUBJECT TO REVIEW BY THIS OFFICE.
IN GENERAL, THIS OFFICE OPERATES AS A CONTROL AGENCY IN THE
LEGISLATIVE BRANCH OF THE UNITED STATES GOVERNMENT TO ASSURE COMPLIANCE
WITH FEDERAL STATUTES GOVERNING THE EXPENDITURE OF PUBLIC MONEYS
APPROPRIATED BY THE CONGRESS FOR THE VARIOUS GOVERNMENTAL PURPOSES, AND
TO ASSIST IN IMPROVING THE EFFECTIVENESS AND EFFICIENCY WITH WHICH
GOVERNMENT PROGRAMS ARE ADMINISTERED. THUS, THIS OFFICE HAS NO
JURISDICTION TO ACT ON A COPYRIGHT INFRINGEMENT CLAIM AGAINST OTHER THAN
FEDERAL AGENCIES.
MR. MULLINS ALSO STATED THAT HIS 23-PAGE COMPLAINT FOR COPYRIGHT
INFRINGEMENT WAS STOLEN FROM HIS HOME. UNFORTUNATELY, THIS OFFICE HAS
NO COPY OF THE COMPLAINT AND THUS CANNOT FURNISH A REPLACEMENT FOR THE
ONE THAT WAS STOLEN.
B-181836, AUG 2, 1974
HEADNOTES-UNAVAILABLE
ITEM MAY BE DELETED FROM SURPLUS SALES CONTRACT WHERE UNIT AND TOTAL
PRICES SUBMITTED BY SUCCESSFUL BIDDER WERE NOT CONSISTENT WITH THE
QUANTITY OF ITEM BUT WERE CONSITENT WITH QUANTITY OF ANOTHER ITEM BIDDER
INTENDED TO BID ON AND BID REPRESENTED NEARLY 106 PERCENT OF ORIGINAL
PURCHASE PRICE OF ITEM ADVERTISED IN FAIR CONDITION, EXCEEDED HIGHEST
PREVIOUS AWARD PRICE FOR SIMILAR PROPERTY BY OVER 8 TIME, AND WAS ALMOST
12 TIMES GREATER THAN NEXT HIGH BID. RELIEF GRANTED BEACUSE CONTRACTING
OFFICER WAS ON CONSTRUCTIVE NOTICE OF POSSIBLE ERROR IN BID AND
REQUESTED NO BID VERIFICATION BEFORE AWARD.
BEN LISSAUR CO.:
THE BEN LISSARUR CO. WAS SUCCESSFUL BIDDER FOR VARIOUS ITEMS ON
SURPLUS SALES INVITATION FOR BIDS (IFB) NO. 49-4027, ISSUED BY THE
ALASKAN SALES OFFICE OF THE DEFENSE SUPPLY AGENCY. AFTER RECEIVING
AWARD ON THESE ITEMS, THE FIRM DISCOVERED THAT IT HAD MISTAKENLY
SUBMITTED A BID ON ITEM 11 OF THE IFB INSTEAD OF ITEM 13 AS IT HAD
INTENDED. CONSEQUENTLY, THE FIRM REQUESTED THAT ITEM 11 BE DELETED FROM
ITS CONTRACT.
FOR ITEM 11 THE BIDDER SUBMITTED A UNIT PRICE AND TOTAL PRICE
INCONSISTENT WITH THE QUANTITY ADVERTISED FOR ITEM 11, BUT CONSISTENT
WITH THE QUANTITY SET FORTH IN ITEM 13. FURTHER, THE PRICE BID
REPRESENTED NEARLY 106 PERCENT OF THE ORIGINAL PURCHASE PRICE OF ITEM 11
WHICH WAS DESCRIBED IN THE IFB AS BEING IN FAIR CONDITION. IN ADDITION,
THE CONTRACTING ACTIVITY ADVISES THAT THE PRICE SUBMITTED WAS OVER 8
TIMES HIGHER THAN THE HIGHEST PREVIOUS AWARD PRICE FOR SIMILAR PROPERTY
AND ALMOST 12 TIMES THE NEXT HIGHEST BID.
IN VIEW OF THIS, WE CONCLUDE THAT THE CONTRACTING OFFICER WAS ON
CONSTRUCTIVE NOTICE OF THE POSSIBILITY OF ERROR IN THE FIRM'S BID.
SINCE NO BID VERIFICATION WAS REQUESTED BEFORE AWARD ITEM 11 MAY BE
DELETED FROM THE CONTRACT AS ADMINISTRATIVELY RECOMMENDED.
B-178336, AUG 1, 1974
HEADNOTES-UNAVAILABLE
1. CONTRACTING OFFICER IS NOT ON CONSTRUCTIVE NOTICE OF ERROR IN BID
WHERE BIDS ARE NOT IN NARROW RANGE AND LOW BID IS NOT CONSPICUOUSLY
OUTSIDE THAT RANGE.
2. CONTRACTING OFFICER DOES NOT HAVE CONSTRUCTIVE NOTICE OF ERROR IN
BID WHERE DIFFERENCE BETWEEN LOW AND NEXT LOW BID IS NOT SIGNIFICANTLY
MORE THAN AVERAGE DIFFERENCE BETWEEN ANY TWO OF OTHER BIDS.
3. CONDITION OF ECONOMY AND PARTICULAR INDUSTRY AND CUSTOMARY DEGREE
OF COMPETITION AMONG SUPPLIERS DO NOT IMPUTE TO CONTRACTING OFFICER
CONSTRUCTIVE NOTICE OF ERROR IN BID.
4. GOVERNMENT ESTIMATE 3.6 PERCENT MORE THAN LOW BID IS NOT
SUFFICIENT TO PLACE CONTRACTING OFFICER ON CONSTRUCTIVE NOICE OF ERROR
IN BID.
RECONSIDERATION OF F. R. STANFIELD COMPANY:
THIS DECISION IS A RECONSIDERATION OF B-178336, MAY 10, 1973,
REQUESTED BY THE F.R. STANFIELD COMPANY (STANFIELD). IN THAT DECISION,
OUR OFFICE DENIED THE REQUEST TO REFORM THE CONTRACT TO INCLUDE $28,800
TO COMPENSATE FOR A MISTAKE IN BID ALLEGED AFTER STANFIELD RECEIVED THE
CONTRACT AWARD.
IN OUR DECISION OF MAY 10, 1973, WE STATED THAT THE DIFFERENCE
BETWEEN THE BID OF STANFIELD ($323,333), THE SECOND LOW BID ($357,650)
AND THE GOVERNMENT ESTIMATE ($335,000) WAS NOT GREAT ENOUGH TO HAVE
PLACED THE CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF THE POSSIBILITY
OF ERROR.
IN ITS LETTER OF MAY 3, 1974, STANFIELD HAS UNDERLINED CERTAIN
PORTIONS OF PAGES 20 THROUGH 24 OF AN ARTICLE ENTITLED, "MISTAKES IN
GOVERNMENT CONTRACTS - ERROR DETECTION DUTY OF CONTRACTING OFFICERS," BY
MARSHALL J. DOKE, JR., 18 SW. L. J. 1 (1964). STANFIELD ARGUES THAT THE
INDICATED PORTIONS OF THIS ARTICLE REQUIRE A REVERSAL OF OUR PRIOR
DECISION.
THE FIRST UNDERLININING ON PAGE 20 RELATES TO THE SIGNIFICANCE THAT
MAY BE ACCORDED TO THE RANGE OF BIDS RECEIVED. THUS, THE ARTICLE NOTES
THAT WHEN ALL THREE BIDS EXCEPT THE LOW BID, $1,024, ARE IN A NARROW
RANGE, $1,383 TO $1,440, THE CONTRACTING OFFICER MAY BE ON CONSTRUCTIVE
NOTICE OF THE PROBABILITY OR ERROR. B-147647, DECEMBER 27, 1961.
HOWEVER, UNLIKE THE CITED DECISION, THERE WERE SEVEN BIDS RECEIVED IN
THIS CASE IN A SUBSTANTIALLY MORE VARIED RANGE, $323,333 TO $484,327.
NOR WAS STANFIELD'S BID CONSPICUOUSLY OUTSIDE THAT RANGE.
AT PAGES 20-21 OF THE ARTICLE, OUR DECISION B-148481, APRIL 3, 1962,
IS CITED FOR THE PROPOSITION THAT THE CONTRACTING OFFICER IS ON
CONSTRUCTIVE NOTICE OF POSSIBLE ERROR WHEN THE DIFFERENCE BETWEEN THE
AMOUNTS OF THE LOW AND THE NEXT LOW BID, $2,137, IS SIGNIFICANTLY MORE
THAN THE AVERAGE DIFFERENCE BETWEEN ANY TWO OF THE OTHER 16 BIDS,
APPROXIMATELY $412. HOWEVER, IT SHOULD BE NOTED THAT THE SECOND LOW BID
IN THAT CASE, $5,730, WHEREAS THE AVERAGE DISPARITY BETWEEN ANY TWO OF
THE OTHER BIDS WAS APPROXIMATELY 6 PERCENT. IN THE INSTANT CASE, THE
SECOND LOW BID WAS ONLY APPROXIMATELY 10.6 PERCENT GREATER THAN
STANFIELD'S LOW BIDS WAS APPROXIMATELY 6 PERCENT. CONSEQUENTLY, WE
AFFIRM OUR DECISION THAT THE FACTS OF THE INSTANT CASE COULD NOT BE SAID
TO HAVE CHARGED THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF THE
POSSIBILITY OF AN ERROR UNDER THIS THEORY.
THE THIRD POINT INDICATED BY STANFIELD IN THE ARTICLE, AT PAGES
21-22, IS THAT THE CONTRACTING OFFICER MAY BE ON CONSTRUCTIVE NOTICE OF
ERROR EVEN THOUGH THE SECOND LOW BID EXCEEDED THE LOW BID BY LESS THAN 8
PERCENT. B-148412, AUGUST 13, 1962. HOWEVER, IN ADDITION TO THE ABOVE,
IT SHOULD BE NOTED THAT THE NARROW RANGE OF THE OTHER FOUR BIDS RECEIVED
($.775 PER POUND TO $.844 PER POUND) WAS A SIGNIFICANT CONSIDERATION,
PARTICULARLY SINCE THE LOW BID OF $.7189 PER POUND WAS CONSPICUOUSLY OUT
OF LINE WITH THE OTHER BIDS. THE ARTICLE GOES ON TO INDICATE THAT THE
DISPARITY IN BIDS ALONE MAY NOT BE SUFFICIENT TO PLACE THE CONTRACTING
OFFICER ON CONSTRUCTIVE NOTICE OF ERROR, EVEN WHERE IT IS AS HIGH AS 40
PERCENT. 17 COMP. GEN. 373 (1937). WE DO NOT BELIEVE WHAT A DISPARITY
OF APPROXIMATELY 10.6 PERCENT BETWEEN THE LOW BID AND NEXT LOW BID IS
SUFFICIENT TO PUT THE CONTRACTING OFFICER ON NOTICE OF POSSIBLE ERROR,
ESPECIALLY WHEN THE GOVERNMENT ESTIMATE INTERVENES AT ABOUT 3.6 PERCENT
HIGHER THAN STANFIELD'S LOW BID.
IN CONJUNCTION WITH THE PRECEDING ARGUMENT, DOKE SUGGESTS THAT THE
CONDITIONS OF THE NATIONAL ECONOMY, OF THE PARTICULAR INDUSTRY, AND OF
THE CUSTOMARY DEGREE OF COMPETITION AMONG SUPPLIERS SHOULD BE FACTORS
FOR CONSIDERATION WHICH, WHEN COUPLED WITH THE DISPARITY IN BIDS, MAY
CHARGE THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF ERROR. THE
FOLLOWING STATEMENT IN B-178402, OCTOBER 1, 1973, IS PERTINENT:
"*** THE 'RESPONSIBILITY FOR THE PREPARATION OF BIDS IS ON THE BIDDER
WHO IS PRESUMED TO BE QUALIFIED TO ESTIMATE THE PRICE WHICH CAN BE
CHARGED IN ORDER FOR A BIDDER TO REALIZE A REASONABLE PROFIT. SEE
FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT. CL. 120,
163,' B-165297, DECEMBER 6, 1968."
MOREOVER, THE CONDITION OF THE ECONOMY APPLIES EQUALLY TO ALL
COMPETITORS AND CONSEQUENTLY WOULD NOT SERVE AS USEFUL INDICES OF THE
AMOUNT OF DISPARITY IN BIDS NECESSARY TO INDICATE THE POSSIBILITY OF
ERROR. WHILE THE ARTICLE DOES NOT SPECIFY WHETHER THE STATE OF THE
PARTICULAR INDUSTRY SHOULD BE MEASURED NATIONALLY OR LOCALLY, IT TOO IS
A CONSTANT FACTOR. WE DO NOT BELIEVE A CONSIDERATION OF THE CUSTOMARY
DEGREE OF COMPETITION WOULD BE OF PROBATIVE VALUE WHEN ADEQUATE
COMPETITION IS ACHIEVED, AS IN THIS CASE.
THE TEST OF CONSTRUCTIVE NOTICE OF ERRORS IN BIDS IS NOT INTENDED TO
PLACE AN UNDUE ADMINISTRATIVE BURDEN UPON THE CONTRACTING OFFICER.
"MISTAKE-MAKING CONTRACTORS WILL NATURALLY SEEK TO IMPOSE UPON
CONTRACTING OFFICERS A RATHER HIGH LEVEL OF BRILLIANCE FOR THE PURPOSE
OF DETECTING THE ERROR. SEE WENDER PRESSES, INC. V. UNITED STATES, 170
CT. CL. 483, 486. HOWEVER, THE TEST IS WHETHER UNDER THE FACTS AND
CIRCUMSTANCES OF 'THE PARTICULAR CASE THERE WERE ANY FACTORS WHICH
REASONABLY SHOULD HAVE RAISED THE PRESUMPTION OF ERROR IN THE MIND OF
THE CONTRACTING OFFICER.' (WELCH, MISTAKES IN BIDS, 18 FED. B.J. 75,83)
WITHOUT MAKING IT NECESSARY FOR THE CONTRACTING OFFICER TO ASSUME THE
BURDEN OF EXAMINING EVERY BID FOR POSSIBLE ERROR BY THE BIDDER. SEE
SALIGMAN V. UNITED STATES, 56 F. SUPP. 505, 508 ***." B-175760, JULY 12,
1973.
THE NEXT ARGUMENT RAISED BY STANFIELD APPEARS AT PAGE 22 OF THE DOKE
ARTICLE: A LARGE DISPARITY BETWEEN THE AMOUNT OF THE LOW BID AND THE
GOVERNMENT ESTIMATE MAY BE THE DETERMINING FACTOR IN CHARGING THE
CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF ERROR, PARTICULARLY WHEN
ONLY TWO OR THREE BIDS ARE RECEIVED. B-149846, OCTOBER 30, 1962;
B-146124, SEPTEMBER 1, 1961; B-144018, SEPTEMBER 29, 1960; AND
B-148120, FEBRUARY 27, 1962.
IN B-178731, AUGUST 3, 1973, THE BIDS WERE $8,250; $9,100; $10,780;
$13,288; AND $15,880. THE GOVERNMENT ESTIMATE WAS $9,645. WE STATED:
"*** THERE IS NO EVIDENCE OF RECORD TO INDICATE THAT THE GOVERNMENT
HAD EITHER ACTUAL OR CONSTRUCTIVE NOTICE OF THE MISTAKE PRIOR TO AWARD.
THE FACT THAT THE GOVERNMENT'S ESTIMATE WAS $1,395 MORE THAN THE LOW BID
AND THE SECOND LOW BID WAS ONLY 14 PERCENT HIGHER THAN THE LOW BID, IS
NOT OF SUFFICIENT DIFFERENCE AS TO HAVE PLACED THE CONTRACTING OFFICER
ON NOTICE OF THE LIKELIHOOD OF AN ERROR. B-177926, APRIL 19, 1973;
B-178336, MAY 10, 1973. CONSEQUENTLY, ANY ERROR THAT WAS MADE IN THE
BID WAS UNILATERAL, NOT MUTUAL."
ALTHOUGH STANFIELD'S WAS THE ONLY BID BELOW THE GOVERNMENT ESTIMATE,
THE DIFFERENCE WAS ONLY ABOUT 3.6 PERCENT AND THE NEXT LOW BID
APPROXIMATELY 6.3 PERCENT HIGHER THAN THE GOVERNMENT ESTIMATE. WE NOTE
THAT THE AVERAGE DISPARITY BETWEEN ANY TWO OF THE OTHER BIDS WAS ALSO
APPROXIMATELY 6 PERCENT. IN OUR OPINION, THIS AFFIRMS OUR DETERMINATION
THAT THE CONTRACTING OFFICER WAS NOT ON CONSTRUCTIVE NOTICE OF AN ERROR
IN STANFIELD'S BID.
THE FINAL UNDERLINED PASSAGE FROM THE ARTICLE CONCERNS THE INFERENCES
THAT MAY BE DRAWN FROM A BID COMPARISON WITH PRIOR PROCUREMENTS. THE
RECORD DOES NOT INDICATE THAT SUCH A COMPARISON WAS MADE IN STANFIELD'S
CASE. HOWEVER, SINCE STANFIELD'S BID WAS SO CLOSE IN LINE WITH THE
GOVERNMENT'S ESTIMATE AND OTHER BIDS RECEIVED, WE DO NOT BELIEVE THAT
SUCH A COMPARISON WAS NECESSARY.
WE, THEREFORE, AFFIRM OUR DECISION OF MAY 10, 1973.
B-179863, AUG 1, 1974
HEADNOTES-UNAVAILABLE
THE RECOMPUTATION OF THE RETIRED PAY OF AN AIR FORCE SERGEANT
ADVANCED ON THE RETIRED LIST TO SECOND LIEUTENANT UNDER 10 U.S.C. 8964
MUST BE BASED ON RATES OF BASIC PAY APPLICABLE TO HIM "ON DATE OF
RETIREMENT" AS PROVIDED BY FOOTNOTE 1 OF 10 U.S.C. 8992, WHICH RATES ARE
THOSE PROVIDED BY PUBLIC LAW 85-422, EFFECTIVE JUNE 1, 1958, SINCE HE
WAS RETIRED JUNE 30, 1963, AND NOT THE HIGHER RATES PROVIDED BY PUBLIC
LAW 88-132, EFFECTIVE OCTOBER 1, 1963.
INCREASE IN RETIRED PAY - SENIOR MASTER SERGEANT ROY M. WADE:
THIS ACTION IS IN RESPONSE TO A LETTER DATED SEPTEMBER 21, 1973 (FILE
REFERENCE RPTT), WITH ENCLOSURES, FROM MR. N.R. BRENINGSTALL, CHIEF,
ACCOUNTING AND FINANCE DIVISION, HEADQUARTERS, AIR FORCE ACCOUNTING AND
FINANCE CENTER, DENVER, COLORADO, REQUESTING AN ADVANCE DECISION AS TO
THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $44.48 IN
FAVOR OF SENIOR MASTER SERGEANT ROY M. WADE, USAF, RETIRED. THAT LETTER
WAS FORWARDED TO THIS OFFICE BY HEADQUARTERS, UNITED STATES AIR FORCE
(FILE REFERENCE ACF), AND HAS BEEN ASSIGNED SUBMISSION NO. DO-AF-1206
BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.
THE SUBMISSION INDICATES THAT SERGEANT WADE WAS RETIRED UNDER THE
PROVISIONS OF 10 U.S.C. 8914 IN THE GRADE OF SENIOR MASTER SERGEANT ON
JUNE 30, 1963, AFTER COMPLETING 20 YEARS, 2 MONTHS, AND 1 DAY OF ACTIVE
SERVICE. REPORDTEDLY, HIS RETIRED PAY WAS INITIALLY COMPUTED BASED ON
THE PAY RATES IN EFFECT AT THE TIME OF HIS RETIREMENT, THAT IS, THE
RATES EFFECTIVE JUNE 1, 1958, AS PROVIDED BY SECTION 201(A) OF THE
CAREER COMPENSATION ACT OF 1949 AS AMENDED BY SECTION (1) OF THE ACT OF
MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 122, 37 U.S.C. 232(A) (1958
ED.). BEGINNING OCTOBER 1, 1963, HIS RETIRED PAY WAS INCREASED BY THE
RATES OF BASIC PAY THAT BECAME EFFECTIVE ON THAT DATE UNDER SECTION
5(A)(1) OF THE UNIFORMED SERVICES PAY ACT OF 1963, APPROVED OCTOBER 2,
1963, PUBLIC LAW 88-132, 77 STAT. 212.
EFFECTIVE APRIL 30, 1973, SERGEANT WADE BECAME ENTITLED TO BE
ADVANCED ON THE RETIRED LIST UNDER 10 U.S.C. 8964 TO THE HIGHEST
TEMPORARY GRADE HE HAD HELD ON ACTIVE DUTY (SECOND LIEUTENANT, 0-1),
WITH HIS RETIRED PAY RECOMPUTED AS PROVIDED IN 10 U.S.C. 8992. THE
VOUCHER ENCLOSED WITH THE SUBMISSION REPRESENTS THE DIFFERENCE IN
SERGEANT WADE'S RETIRED PAY FOR THE PERIOD OF APRIL 30 THROUGH AUGUST
31, 1973, BASED ON THE RATES OF ACTIVE DUTY PAY EFFECTIVE JUNE 1, 1958,
AND THE HIGHER RATES EFFECTIVE OCTOBER 1, 1963, AS RECOMPUTED AT THE
GRADE OF SECOND LIEUTENAT, 0-1, TO WHICH SERGEANT WADE WAS ADVANCED.
SINCE 10 U.S.C. 8992 PROVIDES FOR RECOMPUTATION OF RETIRED PAY BASED
ON BASIC PAY RATES "APPLICABLE ON THE DATE OF RETIRMENT" BUT THE PAY
RATES EFFECTIVE OCTOBER 1, 1963, WOULD PROVIDE GREATER RETIRED PAY TO
SERGEANT WADE, THE QUESTION IS PRESENTED AS TO WHETHER SERGEANT WADE'S
RETIRED PAY SHOULD BE RECOMPUTED ON THE PAY RATES EFFECTIVE ON OCTOBER
1, 1963.
THE STATUTE AUTHORIZING THE RECOMPUTATION OF SERGEANT WADE'S RETIRED
PAY AS A SECOND LIEUTENANT IS 10 U.S.C. 8992 WHICH PROVIDES GENERALLY
THAT A MEMBER OF THE AIR FORCE WHO IS ADVANCED ON THE RETIRED LIST UNDER
10 U.S.C. 8964 IS ENTITLED TO RECOMPUTE HIS RETIRED PAY BY MULTIPLYING
HIS YEARS OF SERVICE BY 2-1/2 PERCENT OF THE MONTHLY BASIC PAY OF THE
GRADE TO WHICH HE IS ADVANCED. FOOTNOTE 1 OF THAT SECTION SPECIFICALLY
PROVIDES THAT SUCH MONTHLY BASIC PAY SHALL BE COMPUTED "AT RATES
APPLICABLE ON DATE OF RETIREMENT."
IN REGARD TO FOOTNOTE 1 OF 10 U.S.C. 8992 AND AN IDENTICAL PROVISION
RELATING TO ARMY MEMBERS (10 U.S.C. 3992) IT IS OUR VIEW THAT IN THE
ABSENCE OF SOME OTHER PROVISION OF LAW FOOTNOTE 1 REQUIRES THAT THE
MONTHLY BASIC PAY RATE TO BE USED FOR SUCH RECOMPUTATION WOULD BE THE
ACTIVE DUTY BASIC PAY RATES IN EFFECT ON THE DATE OF THE MEMBER'S
RETIREMENT. SEE 48 COMP. GEN. 618 (1968), AND COMPARE 45 COMP. GEN.
631 (1966); B-156593, APRIL 8, 1966; AND 49 COMP. GEN. 440 (1970).
AS IS INDICATED ABOVE, SERGEANT WADE'S RETIRED PAY WAS INITIALLY
COMPUTED BASED ON THE RATES OF BASIC PAY IN EFFECT ON THE DATE OF HIS
RETIREMENT (JUNE 30, 1963) - THE RATES PRESCRIBED BY PUBLIC LAW 85-422
WHICH BECAME EFFECTIVE ON JUNE 1, 1958. PURSUANT TO SECTION 5(A)(1) OF
PUBLIC LAW 88-132, EFFECTIVE OCTOBER 1, 1963, HIS RETIRED PAY WAS
RECOMPUTED ON THE HIGHER BASIC PAY RATES PRESCRIBED IN THAT LAW WHICH,
AS IT APPEARS TO RELATE TO SERGEANT WADE, PROVIDES AS FOLLOWS:
"SEC. 5.(A) *** SUBJECT TO SUBSECTION (J) OF THIS SECTION, A MEMBER
OR FORMER MEMBER OF A UNIFORMED SERVICE WHO BECAME ENTITLED TO RETIRED
PAY *** AFTER MARCH 31, 1963, BUT BEFORE THE EFFECTIVE DATE OF THIS ACT,
IS ENTITLED -
"(1) TO HAVE THE RETIRED PAY *** TO WHICH HE WAS ENTITLED ON THE DAY
BEFORE THE EFFECTIVE DATE OF THIS ACT RECOMPUTED UNDER THE RATES OF
BASIC PAY PRESCRIBED BY SECTION 2 OF THIS ACT ***."
SUBSECTION 5(J) PROVIDES AS FOLLOWS:
"(J) A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE IS NOT ENTITLED
TO AN INCREASE IN HIS RETIRED PAY *** BECAUSE OF THE ENACTMENT OF THIS
ACT FOR ANY PERIOD BEFORE THE EFFECTIVE DATE OF THIS ACT."
THERFORE, WHILE SECTION 5(A) OF PUBLIC LAW 88-132 AUTHORIZED A
RECOMPUTATION OF SERGEANT WADE'S RETIRED PAY IN HIS ENLISTED GRADE
EFFECTIVE OCTOBER 1, 1963, BASED ON THE NEW RATES OF BASIC PAY
PRESCRIBED IN SECTION 2 OF THAT ACT, THOSE RATES WERE NOT IN EFFECT ON
THE DATE OF HIS RETIREMENT (JUNE 30, 1963), NOR WAS THE RECOMPUTATION
AUTHORIZED BY SUBSECTION 5(A)(1) MADE RETROACTIVE TO THE DATE OF
SERGEANT WADE'S RETIREMENT. ALSO, NO OTHER PROVISION OF PUBLIC LAW
88-132 OF WHICH WE ARE AWARE WOULD AUTHORIZE THE RECOMPUTATION UNDER 10
U.S.C. 8992 OF SERGEANT WADE'S RETIRED PAY OTHER THAN BASED ON THE RATES
OF BASIC PAY "APPLICABLE ON DATE OF RETIREMENT" WHICH WERE THE RATES
PROVIDED BY SECTION (1) OF PUBLIC LAW 85-422.
ACCORDINGLY, PAYMENT ON THE VOUCHER IS NOT AUTHORIZED AND IT WILL BE
RETAINED IN THIS OFFICE.
B-179938, AUG 1, 1974
HEADNOTES-UNAVAILABLE
1. NAVY MEMBER WHO WAS TRANSFERRED ON AUGUST 10, 1973, TO FLEET
RESERVE AT NAVAL AIR TEST CENTER, PATUXENT RIVER, MARYLAND, AND WHO WAS
AUTHORIZED TO PROCEED BY AUTO WITH DEPENDENTS TO PORT OF EMBARKATION
(SAN FRANCISCO INTERNATIONAL AIRPORT), FOR FURTHER TRANSPORTATION TO
HOME OF SELECTION (PAGO PAGO, AMERICAN SAMOA), AND WHO ARRIVED AT NAVAL
SUPPLY CENTER, OAKLAND ON AUGUST 16 TO ALLOW TIME TO PROCESS SHIPMENT OF
VEHICLE PRIOR TO DEPARTURE FROM SAN FRANCISCO INTERNATIONAL AIRPORT ON
AUGUST 18, IS NOT ENTITLED TO PER DIEM NOR TO TAXICAB FARES INCIDENT TO
DELIVERY OF VEHICLE FOR SHIPMENT OVERSEAS SINCE IT WAS FOR PERSONAL
REASONS AND NOT ON PUBLIC BUSINESS.
2. NAVY MEMBER WHO IS ENTITLED TO MILEAGE ALLOWANCE FOR TRAVEL OF
DEPENDENTS FROM PATUXENT RIVER, MARYLAND, TO SAN FRANCISCO INTERNATIONAL
AIRPORT AND FROM THERE TO TAFLINA AIRPORT VIA GOVERNMENT PROCURED
TRANSPORTATION MAY RECEIVE REIMBURSEMENT FOR TAXICAB FARE FROM TAFLINA
AIRPORT TO PAGO PAGO IN ACCORD WITH PAR. M7002-3, JTR.
3. WHERE NAVY MEMBER'S DEPENDENTS TRAVELED FROM LAST PERMANENT
STATION AT PATUXENT RIVER, MARYLAND, TO PORT OF EMBARKATION, SAN
FRANCISCO INTERNATIONAL AIRPORT, ON MILEAGE BASIS, AND FROM THERE VIA
GOVERNMENT PROCURED TRANSPORTATION TO TAFLINA AIRPORT, PORT OF
DEBARKATION, AND FROM THERE TO PAGO PAGO, HOME OF SELECTION VIA
PERSONALLY PROCURED TAXICAB, REIMBURSEMENT MAY BE MADE FOR BAGGAGE
HANDLING EXPENSES INCURRED IN SAN FRANCISCO AND PAGO PAGO, IN ACCORD
WITH PAR. M7002-3, JTR.
CLAIM OF TAISAVALI AFE, SHI, USNFR, PER DIEM AND TRAVEL EXPENSES.
THIS ACTION IS IN RESPONSE TO LETTER (FILE REFERENCE CT013/ICW: CCB,
7220), DATED AUGUST 17, 1973, FROM THE DEPUTY DISBURSING OFFICER, NAVAL
AIR TEST CENTER, PATUXENT RIVER, MARYLAND, REQUESTING AN ADVANCE
DECISION AS TO WHETHER TAISAVALI AFE, SHI, USNFR, IS ENTITLED TO PAYMENT
OF PER DIEM WHILE AWAITING TRANSPORTATION AT SAN FRANCISCO, CALIFORNIA,
AND TO REIMBURSEMENT FOR TAXICAB FARES, BAGGAGE HANDLING AND TIPS
INCIDENT TO TRAVEL TO HIS HOME OF SELECTION, PAGO PAGO, AMERICAN SAMOA.
THE REQUEST WAS FORWARDED TO THIS OFFICE BY ENDORSEMENT OF THE PER DIEM,
TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE DATED OCTOBER 19, 1973,
AND HAS BEEN ASSIGNED PDTATAC CONTROL NO. 73-48.
IT IS STATED THAT THE MEMBER WAS TRANSFERRED TO THE FLEET RESERVE AT
NAVAL AIR TEST CENTER, PATUXENT RIVER, MARYLAND, ON AUGUST 10, 1973, AND
THAT ON THAT DATE HE AND HIS DEPENDENTS PROCEEDED TO THE PORT OF
EMBARKATION (SAN FRANCISCO) FOR FURTHER TRANSPORTATION TO HIS HOME OF
SELECTION (PAGO PAGO, AMERICAN SAMOS). IT IS STATED FURTHER THAT THEY
ARRIVED AT UNITED STATES NAVAL SUPPLY CENTER (NSC), OAKLAND, CALIFORNIA,
BY PRIVATE AUTOMOBILE ON AUGUST 16, 1973, IN ORDER TO ALLOW REASONABLE
TIME TO PROCESS SHIPMENT OF THE MEMBER'S VEHICLE PRIOR TO THEIR
DEPARTURE FROM SAN FRANCISCO ON AUGUST 18, 1973.
THE MEMBER'S TRAVEL VOUCHER LISTS THE FOLLOWING AS EXPENSES: AUGUST
16, 1973 - TAXICAB FROM OAKLAND (NSC) TO MOTEL ($5.00); AUGUST 18, 1973
- TAXICAB FROM OAKLAND TO SAN FRANCISCO INTERNATIONAL AIRPORT ($7.50);
AND AUGUST 18, 1973 - TAXICAB FROM TAFLINA AIRPORT TO HOME (PAGO PAGO)
($7.50). IN ADDITION, CLAIM IS MADE FOR BAGGAGE HANDLING AND TIPS IN
SAN FRANCISCO FOR $1.50 AND IN PAGO PAGO, FOR $1.50.
ALTHOUGH PARAGRAPH M4159 OF THE JOINT TRAVEL REGULATIONS AUTHORIZES
PAYMENT OF PER DIEM FOR TRANSOCEANIC TRAVEL, THE DEPUTY DISBURSING
OFFICER EXPRESSES DOUBT AS TO WHETHER THIS PROVISION ALSO APPLIES TO THE
DELAY AT SAN FRANCISCO. ALSO, SINCE THE TRAVEL WAS PARTLY AT PERSONAL
EXPENSE, AND PARTLY ON GOVERNMENT PROCURED TRANSPORTATION
(TRANSPORTATION REQUEST), THE QUESTION ARISES AS TO WHETHER
REIMBURSEMENT OF EXPENSES SUCH AS TAXICAB FARE, BAGGAGE HANDLING AND
TIPS IS AUTHORIZED.
SECTION 404 OF TITLE 37, UNITED STATES CODE, PROVIDES THAT UNDER
REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMEBR OF A
UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES
FOR TRAVEL PERFORMED UNDER ORDERS. ACCORDINGLY, PARAGRAPH M3050-1 OF
THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO
TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A TRAVEL
STATUS, AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE
PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION UPON PUBLIC
BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS.
SECTION 406 OF TITLE 37, UNITED STATES CODE, PROVIDES THAT UNDER
REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED A MEMBER UPON CHANGE
OF PERMANENT STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS
DEPENDENTS, TO REIMBURSEMENT THEREFORE, OR A MONETARY ALLOWANCE.
PARAGRAPH M7009 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER
ON ACTIVE DUTY WHO IS SEPARATED FROM THE SERVICE OR RELIEVED FROM ACTIVE
DUTY WILL BE ENTITLED TO TRANSPORTATION FOR HIS DEPENDENTS NOT TO EXCEED
THE DISTANCE FROM HIS LAST PERMANENT DUTY STATION OR THE PLACE TO WHICH
THE MEMBER ELECTS TO RECEIVE TRAVEL ALLOWANCES FOR HIS TRAVEL.
PARAGRAPH M4159 OF THE JOINT TRAVEL REGULATIONS WHICH PERTAINS TO
PERMANENT CHANGE OF STATION TRAVEL, TO, FROM, OR BETWEEN POINTS OUTSIDE
THE UNITED STATES STATES AS FOLLOWS:
"1. GENERAL. EXCEPT AS SPECIFICALLY PROVIDED IN SUBPARS. 2 AND 3, A
MEMBER TRAVELING UNDER PERMANENT CHANGE-OF-STATION ORDERS (INCLUDING
SEPARATION FROM THE SERVICE OR RELIEF FROM ACTIVE DUTY) TO, FROM, OR
BETWEEN POINTS OUTSIDE THE UNITED STATES, WHICH ORDERS DO NOT SPECIFY
GROUP TRAVEL OR DIRECT TRAVEL BY A SPECIFIC MODE OF TRANSPORTATION WILL
BE ENTITLED TO:
"1. THE ALLOWANCES PRESCRIBED IN PAR. M4150 OR M4154, AS APPLICABLE,
FOR THE OFFICIAL DISTANCE BETWEEN THE OLD PERMANENT STATION AND THE
APPROPRIATE AERIAL OR WATER PORT OF EMBARKATION SERVING THE OLD DUTY
STATION;
"2. TRANSPORTATION BY GOVERNMENT AIRCRAFT OR VESSEL, IF AVAILABLE,
OTHERWISE GOVERNMENT PROCURED TRANSPORTATION OR REIMBURSEMENT FOR
TRANSPORTATION PROCURED AT PERSONAL EXPENSE FOR THE TRANSOCEANIC TRAVEL
INVOLVED (SEE SUBPAR. 4), PLUS PER DIEM, IF APPLICABLE, IN ACCORDANCE
WITH PART F; AND
"3. THE ALLOWANCES PRESCRIBED IN PAR. M4150 OR M4154, AS APPLICABLE,
FOR THE OFFICIAL DISTANCE BETWEEN THE APPROPRIATE AERIAL OR WATER PORT
OF DEBARKATION SERVING THE NEW STATION AND THE NEW PERMANENT STATION."
PARAGRAPH M7002-3 OF THE JOINT TRAVEL REGULATIONS (CHANGE 146, AUGUST
1, 1973), PROVIDES THAT WHEN TRANSPORTATION IN KIND IS FURNISHED
DEPENDENTS UPON PERMANENT CHANGE OF STATION OR THE MEMBER IS REIMBURSED
FOR THE COST OF SUCH TRANSPORTATION, HE IS ENTITLED TO REIMBURSEMENT FOR
THE COST OF TAXICAB FARE BETWEEN PLACES OF ABODE AND CARRIER TERMINALS,
BETWEEN CARRIER TERMINALS, FROM CARRIER TERMINALS TO LODGING AND RETURN,
WHEN REQUIRED BY UNAVOIDABLE TRANSPORTATION DELAYS, WHICH ARE BEYOND THE
CONTROL OF THE DEPENDENTS, AS WELL AS TO THE COST OF TRANSFERRING
BAGGAGE WHEN ITEMIZED AND THE NUMBER OF PIECES IS SHOWN IN THE CLAIM,
PROVIDED THAT RECEIPTS ARE REQUIRED TO SUPPORT ANY CLAIMED ITEM IN
EXCESS OF $15.
PARAGRAPH M7002-3 FURTHER PROVIDES THAT THE FOREGOING ITEMS OF
EXPENSE ARE NOT REIMBURSABLE WHEN DEPENDENTS TRAVEL ON A MONETARY
ALLOWANCE BASIS (MILEAGE) EXCEPT IN CONNECTION WITH TRAVEL BETWEEN TWO
POINTS CONSIDERED A SEPARATE LEG OF A JOURNEY WHEN MONETARY ALLOWANCE IN
LIEU OF TRANSPORTATION IS NOT PAYABLE BETWEEN THOSE TWO POINTS,
INCLUDING FROM THE PERMANENT STATION TO THE PORT OF EMBARKATION AND FROM
THE PORT OF DEBARKATION TO THE HOME OF SELECTION.
THE GOVERNMENT'S OBLIGATION IN REGARDS TO THE MEMBER'S VEHICLE IS
LIMITED TO TRANSPORTING IT BETWEEN AN APPROPRIATE PORT IN THE UNITED
STATES AND OVERSEAS, IN ACCORD WITH PARAGRAPH M11000-2 OF THE JOINT
TRAVEL REGULATIONS. THEREFORE, THE DELIVERY OF HIS VEHICLE AT THE PORT
FOR SHIPMENT OVERSEAS IS A PERSONAL MATTER, NOT ON PUBLIC BUSINESS, AND
PER DIEM MAY NOT BE AUTHORIZED IN CONNECTION THEREWITH, NOR MAY EXPENSES
INCIDENT TO SUCH DELIVERY, SUCH AS THE TAXICAB FARE FROM OAKLAND NSC TO
A MOTEL IN OAKLAND, AND FROM OAKLAND TO SAN FRANCISCO INTERNATIONAL
AIRPORT, BE AUTHORIZED.
WITH REGARD TO REIMBURSEMENT FOR TAXICAB FARE FROM OAKLAND TO SAN
FRANCISCO INTERNATIONAL AIRPORT, IT APPEARS THAT SINCE THE MEMBER IS
ENTITLED TO RECEIVE A MILEAGE ALLOWANCE FOR TRAVEL OF HIS DEPENDENTS
FROM PATUXENT RIVER, MARYLAND, TO SAN FRANCISCO INTERNATIONAL AIRPORT
AND THAT TRANSPORTATION AT THAT LATTER LOCATION VIA TAXICAB WAS NOT
NECESSITATED BY UNAVOIDABLE TRANSPORTATION DELAYS BEYOND THE CONTROL OF
HIS DEPENDENTS AS REQUIRED BY PARAGRAPH M7002-3 OF THE REGULATIONS, THIS
EXPENSE MAY NOT BE ALLOWED. HOWEVER, SINCE IT APPEARS THAT THE MEMBER
OBTAINED TRAVEL ON A COMMON CARRIER AT HIS OWN EXPENSE FROM TAFLINA
AIRPORT TO PAGO PAGO, IN ACCORDANCE WITH PARAGRAPH M7002-3 OF THE
REGULATIONS, HE MAY BE REIMBURSED FOR THE TAXICAB FARE BETWEEN THESE TWO
POINTS AND IN ACCORDANCE WITH PARAGRAPH M7002-3 REIMBURSEMENT MAY BE
MADE FOR BAGGAGE HANDLING EXPENSES INCURRED IN SAN FRANCISCO AND PAGO
PAGO.
THE QUESTIONS SUBMITTED ARE ANSWERED ACCORDINGLY.
B-171878, AUG 8 1974
HEADNOTES-UNAVAILABLE
CIVILIAN EMPLOYEE OF ARMY CORPS OF ENGINEERS SEEKS REINBURSEMENT OF
NEW MEXICO GROSS RECEIPTS AND COMPENSATING TAX LEVIED IN CONNECTION WITH
HIS PURCHASE OF A NEWLY-CONSTRUCTED RESIDENCE INCIDENT TO TRANSFER.
REIMBURSEMENT MAY NOT BE MADE SINCE TAX IS A BUSINESS PRIVILEGE TAX, AND
THE FACT THAT EMPLOYEE MAY DEDUCT TAX ON INCOME TAX RETURN DOES NOT
ALTER THE NATURE OF TAX. THE TAX IS NOT ASSESSED ON CASUAL SALE OF
PREVIOUSLY OCCUPIED HOME AND, THEREFORE IS NOT A TRANSFER TAX WITHIN
MEANING OF SECTION 2-6.2D OF FEDERAL TRAVEL REGULATIONS, FPMR 101-7.
ADDITIONALLY, REGULATION PROHIBITS REIMBURSEMENT OF EXPENSES THAT ARE
ASSOCIATED ONLY WITH CONSTRUCTION OF A RESIDENCE. B-174335, DECEMBER 8,
1971, WILL NO LONGER BE FOLLOWED.
ARTHUR G. CUDWORTH, JR. - RELOCATION EXPENSES - TAXES:
THIS MATTER INVOLVES A REQUEST FOR AN ADVANCE DECISION SUBMITTED BY
THE FINANCE AND ACCOUNTING OFFICE, ALBUQUERQUE DISTRICT, CORPS OF
ENGINEERS, DEPARTMENT OF THE ARMY, CONCERNING THE PROPRIETY OF
REIMBURSING A CIVILIAN EMPLOYEE, MR. ARTHUR G. CUDWORTH, JR., FOR THE
NEW MEXICO STATE "SALES TAX" THAT HE PAID WHEN HE PURCHASED A NEW HOME
INCIDENT TO HIS TRANSFER TO ALBUQUERQUE, NEW MEXICO.
BY TRAVEL ORDER NUMBER E80-74-0141, MR. CUDWORTH WAS TRANSFERRED FROM
THE SOUTH PACIFIC DIVISION, CORPS OF ENGINEERS, SAN FRANCISCO,
CALIFORNIA, TO ALBUQUERQUE. INCIDENT TO THIS TRANSFER, HE PURCHASED A
NEW HOME, WITH THE SETTLEMENT OCCURRING ON NOVEMBER 26, 1973. ON
DECEMBER 13, MR. CUDWORTH WAS ADVISED, BY A LETTER FROM MR. C.R.
ZIMMERMAN OF CHARTER BUILDING AND DEVELOPMENT CORPORATION, THAT THE
PURCHASE PRICE OF HIS HOME INCLUDED A "SALES TAX" OF $1,259.61 WHICH MR.
CUDWORTH COULD USE AS A DEDUCTION IN FILING HIS PERSONAL INCOME TAX
RETURN. WHEN MR. CUDWORTH SUBMITTED HIS "APPLICATION FOR REIMBURSEMENT
OF EXPENSES INCURRED BY DOD CIVILIAN EMPLOYEE UPON SALE OR PURCHASE (OR
BOTH) OF RESIDENCE UPON CHANGE OF DUTY STATION" (DD FORM 1705), UNDER
5I., "SALES OR TRANSFER TAXES; MORTGAGE TAX, IF ANY," HE LISTED THE
AMOUNT OF THE "SALES TAX" THAT HE PAID. WE HAVE BEEN INFORMALLY ADVISED
BY MR. ZIMMERMAN THAT THIS TAX IS COMPUTED BY SUBTRACTING THE VALUE OF
THE LAND FROM THE TOTAL PRICE OF THE HOME, BEFORE MULTIPLYING BY THE
APPLICABLE RATE, 4 PERCENT. IN ADDITION, WE UNDERSTAND THAT THE TAX IS
LEVIED ON A NEWLY CONSTRUCTED HOME SOLD BY A CONTRACTOR, BUT NOT ON A
HOME THAT HAS PREVIOUSLY BEEN OCCUPIED, WHICH IS TRANSFERRED THROUGH A
"CASUAL" SALE BY A PRIVATE INDIVIDUAL.
AT THE TIME OF MR. CUDWORTH'S TRANSFER, PAYMENT OF TRAVEL AND
RELOCATION EXPENSES OF CIVILIAN GOVERNMENT EMPLOYEES WAS GOVERNED BY THE
FEDERAL TRAVEL REGULATIONS, FPMR 101-7, MAY 1973. SECTION 2-6.2D
PROVIDES, IN PERTINENT PART:
"MISCELLANEOUS EXPENSES. THE FOLLOWING EXPENSES ARE REIMBURSABLE
WITH RESPECT TO THE SALE AND PURCHASE OF RESIDENCES IF THEY ARE
CUSTOMARILY PAID BY THE SELLER OF A RESIDENCE AT THE OLD OFFICIAL
STATION OR IF THEY ARE CUSTOMARILY PAID BY THE PURCHASER OF A RESIDENCE
AT THE NEW OFFICIAL STATION, TO THE EXTENT THEY DO NOT EXCEED AMOUNTS
CUSTOMARILY PAID IN THE LOCALITY OF THE RESIDENCE: *** MORTGAGE AND
TRANSFER TAXES, *** IN CASES INVOLVING CONSTRUCTION OF A RESIDENCE,
REIMBURSEMENT OF EXPENSES WOULD INCLUDE THOSE ITEMS OF EXPENSE WHICH ARE
COMPARABLE TO EXPENSES THAT ARE REIMBURSABLE IN CONNECTION WITH THE
PURCHASE OF EXISTING RESIDENCES AND WILL NOT INCLUDE EXPENSES WHICH
RESULT FROM CONSTRUCTION."
IF THE TAX PAID BY MR. CUDWORTH CAN BE CLASSIFIED AS A TRANSFER TAX,
IT MAY BE REIMBURSABLE UNDER THE REGULATION.
IN ORDER TO DETERMINE WHETHER OR NOT A PARTICULAR TAX IS A "TRANSFER
TAX," IT IS POSSIBLE TO EXAMINE EACH TAX FROM TWO DIFFERENT
PERSPECTIVES. A TAX CAN BE ANALYZED BY EXAMINING ITS IMPACT ON THE
INDIVIDUAL TAXPAYER, FOLLOWED BY THE APPLICATION OF A SINGLE NATIONAL
STANDARD, NO MATTER HOW THE TAX MAY BE CHARACTERIZED BY THE TAXING
AUTHORITY. ON THE OTHER HAND, THE ESSENTIAL NATURE OF THE TAX, AS
CONSTRUED BY APPROPRIATE STATE OR LOCAL AUTHORITIES, CAN BE EXAMINED TO
SEE IF IT IS, IN FACT, A TAX ON THE TRANSFER ITSELF. IN THE LATTER
CASE, THERE MAY BE VARIATIONS IN HOW TAXES FROM DIFFERENT AREAS, THAT
ARE OSTENSIBLY THE SAME, ARE TREATED. THROUGHOUT THE SECTIONS OF FPMR
101-7 THAT DEAL WITH THE REIMBURSEMENT OF REAL ESTATE EXPENSES, THE
REFERENCES AND STANDARDS ARE RELATED TO LOCAL CONSTRUCTIONS OF THE
VARIOUS EXPENSES. IN THE SECTION QUOTED ABOVE, THE STATED EXPENSES ARE
PAYABLE IF:
"... THEY ARE CUSTOMARILY PAID BY THE SELLER OF A RESIDENCE AT THE
OLD OFFICIAL STATION OR IF THEY ARE CUSTOMARILY PAID BY THE PURCHASER OF
A RESIDENCE AT THE NEW OFFICIAL STATION ..."
CLEARLY THIS CALLS FOR AN EXAMINATION OF LOCAL PRACTICES. BY
APPLYING THE SAME STANDARDS THE ANALYSIS OF A POSSIBLE TRANSFER TAX, IT
BECOMES READILY APPARENT THAT THE CHARACTERIZATION GIVEN A PARTICULAR
TAX BY THE APPROPRIATE STATE OR LOCAL AUTHORITIES MUST BE CONTROLLING.
THE NEW MEXICO "SALES TAX" IS LEVIED UNDER NEW MEXICO STATUTES
ANNOTATED, SECTION 72-16A-1, ET SEQ. SECTION 72-16A-2 PROVIDES:
"PURPOSE - THE PURPOSE OF THE GROSS RECEIPTS AND COMPENSATING TAX ACT
(72-16A-1 TO 72-16A-19) IS TO PROVIDE REVENUE FOR PUBLIC PURPOSES BY
LEVYING A TAX ON THE PRIVILEGE OF ENGAGING IN CERTAIN ACTIVITIES WITHIN
NEW MEXICO AND TO PROTECT NEW MEXICO BUSINESSMEN FROM THE UNFAIR
COMPETITION THAT WOULD OTHERWISE RESULT FROM THE IMPORTATION INTO THE
STATE OF PROPERTY WITHOUT PAYMENT OF A SIMILAR TAX."
THIS TAX WAS ENACTED IN 1966, AND THERE ARE NO ANNOTATIONS TO THE
STATUTE THAT DEAL WITH THE ESSENTIAL NATURE OF THE TAX. HOWEVER, IT IS
CLEAR ON THE FACE OF THE STATUTE THAT IT IS A TAX ON THE PRIVILEGE OF
DOING BUSINESS IN THE STATE OF NEW MEXICO. THIS INTERPRETATION IS
CONFIRMED BY SECTION 72-16A-4, WHICH PROVIDES:
"A. FOR THE PRIVILEGE OF ENGAGING IN BUSINESS, AN EXCISE TAX EQUAL
TO FOUR PER CENT (4%) OF GROSS RECEIPTS IS IMPOSED ON ANY PERSON
ENGAGING IN BUSINESS IN NEW MEXICO.
"B. THE TAX IMPOSED BY THIS SECTION SHALL BE REFERRED TO AS THE
'GROSS RECEIPTS TAX.'"
THIS PRIVILEGE TAX IS SPECIFICALLY IMPOSED ON A PERSON "ENGAGING IN
BUSINESS," NOT ON THE ULTIMATE CONSUMER. THE FACT THAT THE TAX MAY BE
DEDUCTED ON THE PURCHASER'S PERSONAL INCOME TAX RETURN DOES NOT CHANGE
THE ESSENTIAL NATURE OF THE TAX. IT IS IMPOSED ON THE PRIVILEGE OF
DOING BUSINESS, NOT ON THE TRANSFER. THIS POSITION IS SUPPORTED BY THE
FACT THAT THIS SAME TAX IS NOT IMPOSED ON THE CASUAL SALE OF A HOME THAT
HAS PREVIOUSLY BEEN OCCUPIED. THEREFORE, WE CANNOT SAY THAT THE NEW
MEXICO GROSS RECEIPTS AND COMPENSATING TAX IS A TRANSFER TAX WITHIN THE
MEANING OF SECTION 2-6.2D OF FPMR 101-7.
IN B-174335, DECEMBER 8, 1971, WE CONSIDERED THE AUTHORITY FOR THE
REIMBURSEMENT OF A SIMILAR TAX PROVISION IN THE STATE OF ARIZONA.
THERE, THE EMPLOYEE PURCHASED A MOBILE HOME THAT WAS TO BE USED AS A
RESIDENCE AT HIS NEW DUTY STATION IN ARIZONA. AT THE TIME OF PURCHASE,
A TAX WAS LEVIED UNDER TITLE 42, SECTION 1309, OF THE ARIZONA REVISED
STATUTES. THAT SECTION DESCRIBED THE TAX AS A "PRIVILEGE TAX" TO BE
ASSESSED AGAINST "GROSS PROCEEDS OF SALES, OR GROSS INCOME." THIS
CHARACTERIZATION WAS CONFIRMED BY THE SUPREME COURT OF ARIZONA IN STATE
TAX COMMISSION V. CONSUMERS MARKET, INC., 87 ARIZ. 376, 351 P.2D 654
(SUP. CT. 1960) AND INDUSTRIAL URANIUM CO. V. STATE TAX COMMISSION, 95
ARIZ. 130, 387 P. 2D 1013 (SUP. CT. 1963). IN THOSE CASES, THE COURT
SPECIFICALLY HELD THAT THE TAXABLE EVENT WAS NOT THE SALE OF GOODS, BUT
WAS THE DOING OF BUSINESS IN ARIZONA. IN B-174335, SUPRA, WE ANALOGIZED
THIS TAX TO A "USE TAX" IMPOSED UPON THE REGISTRATION OF A VEHICLE OR
MOBILE HOME WHEN IT IS BROUGHT INTO A STATE OTHER THAN THE ONE IN WHICH
IT WAS PURCHASED. IN SO DOING, WE DEPARTED FROM THE STRICT APPLICATION
OF THE LOCAL INTERPRETATION OF TAX LAW, AND ATTEMPTED TO VIEW THE TAX
FROM THE PERSEPECTIVE OF ITS IMPACT ON THE EMPLOYEE. THEREFORE,
B-174335, DECEMBER 8, 1971, WILL NO LONGER BE FOLLOWED.
IN THE INSTANT CASE, THERE IS NO EQUIVALENT TO THE "USE TAX" SO THE
ESSENTIAL NATURE OF THE BUSINESS PRIVILEGE TAX BECOMES CLEAR, AND IT
BECOMES READILY APPARENT THAT A BUSINESS PRIVILEGE TAX, STANDING ALONE,
IS NOT A TRANSFER TAX, AND CANNOT BE REIMBURSED UNDER THE PROVISIONS OF
OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, SECTION 4.2D, AND
FPMR 101-7, SECTION 2-6.2D.
AS NOTED ABOVE, THE TAX INVOLVED HERE WILL NORMALLY ONLY BE ASSESSED
INCIDENT TO THE PURCHASE OF A NEWLY CONSTRUCTED RESIDENCE. IN FPMR
101-7, SECTION 2-6.2D, IT IS SPECIFICALLY STATED THAT IN A CASE
INVOLVING CONSTRUCTION OF A NEW RESIDENCE, ONLY THOSE COSTS THAT WOULD
ALSO BE INCLUDED IN THE PURCHASE OF AN EXISTING RESIDENCE MAY BE
REIMBURSED. ANY EXPENSES RESULTING FROM CONSTRUCTION MAY NOT BE
REIMBURSED. IN THIS CONNECTION, WE HAVE HELD THAT, IN RELATION TO THE
CONSTRUCTION OF A RESIDENCE, THERE COULD BE NO REIMBURSEMENT FOR THE
COST OF: ARCHITECT'S PLANS, B-164926, SEPTEMBER 30, 1968; WATER AND
SEWER HOOK-UPS, B-165879, FEBRUARY 7, 1969; CONSTRUCTION LOAN FEES
CHARGED IN ADDITION TO NORMAL MORTGAGE FEES, B-164452, JULY 2, 1968, AND
B-164938, AUGUST 26, 1968; AND A SALES TAX, B-164491, AUGUST 20, 1968.
IN THE INSTANT CASE, THE "PRIVILEGE TAX" WAS ASSESSED AGAINST THE
CONTRACTOR THAT BUILT THE HOUSE. IT WAS A CHARGE INCIDENT TO THE
CONSTRUCTION OF A NEW RESIDENCE, AND IS THERFORE NOT REIMBURSABLE.
ACCORDINGLY MR. CUDWORTH'S TRAVEL VOUCHER, WHICH WILL BE RETAINED,
MAY NOT BE CERTIFIED FOR PAYMENT.
R.F. KELLER
DEPUTY COMPTROLLER GENERAL OF THE UNITED STATES
B-178205, AUG 7 1974
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
SECRETARY OF DEFENSE
REFERENCE IS MADE TO LETTER DATED MAY 17, 1974, FROM MR. MARTIN R.
HOFFMANN, SPECIAL ASSISTANT TO THE SECRETARY OF DEFENSE, RESPONDING ON
YOUR BEHALF TO OUR LETTER B-178205, APRIL 17, 1974, CONCERNING THE
SERVICE OF FOUR ACTIVE DUTY REGULAR MILITARY OFFICERS (2 AIR FORCE
OFFICERS, 1 ARMY OFFICER, AND 1 NAVY OFFICER) IN THE OFFICE OF PETROLEUM
ALLOCATION, DEPARTMENT OF THE INTERIOR, FOR A BRIEF TIME IN LATE
NOVEMBER AND EARLY DECEMBER 1973.
IN OUR APRIL 17, 1974 LETTER WE INDICATED THAT SUCH OFFICERS' SERVICE
IN THE OFFICE OF PETROLEUM ALLOCATION, DEPARTMENT OF THE INTERIOR, WOULD
APPARENTLY SEPARATE THEM FROM THEIR ORGANIZATIONS, BRANCHES, OR UNITS,
AND INTERFERE WITH THE PERFORMANCE OF THEIR MILITARY DUTIES, AND THUS,
WOULD APPEAR TO HAVE BEEN IN CONTRAVENTION OF 10 U.S.C. 973(A) WHICH
PROVIDES AS FOLLOWS:
"(A) NO OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY, REGULAR NAVY,
REGULAR AIR FORCE, REGULAR MARINE CORPS, OR REGULAR COAST GUARD MAY
ACCEPT EMPLOYMENT IF THAT EMPLOYMENT REQUIRES HIM TO BE SEPARATED FROM
HIS ORGANIZATION, BRANCH, OR UNIT, OR INTERFERES WITH THE PERFORMANCE OF
HIS MILITARY DUTIES."
IN THIS REGARD, WE POINTED OUT THAT THIS OFFICE HAS LONG HELD THAT
THERE MUST BE STATUTORY AUTHORITY FOR DETAILING REGULAR OFFICERS ON THE
ACTIVE LIST TO DUTY IN THE CIVIL BRANCHES OF THE GOVERNMENT. SEE 19
COMP. GEN. 826, 828 (1940). WE ALSO NOTED THAT THE ATTORNEY GENERAL HAS
SIMILARLY SO HELD. 16 OP. ATTY. GEN. 499 (1880), 19 OP. ATTY. GEN. 600
(1890), AND 30 OP. ATTY. GEN. 184 (1913). AND, WE STATED THEREIN THAT
WE WERE UNAWARE OF ANY STATUTORY AUTHORITY WHICH WOULD PERMIT THE
DETAILING OF SUCH OFFICERS TO SERVE IN THE OFFICE OF PETROLEUM
ALLOCATION.
THE SPECIAL ASSISTANT TO THE SECRETARY STATES THAT THE SECRETARIES OF
THE MILITARY DEPARTMENTS HAVE BEEN ENDOWED BY CONGRESS WITH EXTREMELY
BOOAD POWERS TO ASSING AND DETAIL MILITARY PERSONNEL. AS AN EXAMPLE, HE
CITES 10 U.S.C. 3012(E) WHICH PROVIDES AS FOLLOWS IN RELATION TO THE
SECRETARY OF THE ARMY:
"(E) THE SECRETARY, AS HE CONSIDERS APPROPRIATE, MAY ASSIGN, DETAIL,
AND PRESCRIBE THE DUTIES OF MEMBERS OF THE ARMY AND CIVILIAN PERSONNEL
OF THE DEPARTMENT OF THE ARMY."
AS THE SPECIAL ASSISTANT NOTES, 10 U.S.C. 80012(E) PROVIDES IDENTICAL
AUTHORITY TO THE SECRETARY OF THE AIR FORCE IN RELATION TO THE AIR
FORCE. SUCH EXPLICIT STATUTORY AUTHORITY IS NOT PROVIDED THE SECRETARY
OF THE NAVY, HOWEVER, 10 U.S.C. 5031 ESTABLIHES HIM AS "THE HEAD OF THE
DEPARTMENT OF THE NAVY" AND PROVIDES THAT HE SHALL ADMINISTER THE
DEPARTMENT UNDER THE DIRECTION, AUTHORITY, AND CONTROL OF THE SECRETARY
OF DEFENSE.
IN REGARD TO THESE STATUTES THE SPECIAL ASSISTANT'S LETTER STATES:
"THE TERMS OF THESE STATUTES ARE CLEARLY BROAD ENOUGH TO INCLUDE THE
ASSIGNMENT OR DETAIL OF MILITARY PERSONNEL TO OTHER DEPARTMENTS AND
AGENCIES OF THE EXECUTIVE BRANCH OF THE GOVERNMENT. HOWEVER, AN
IMPLICIT LIMITATION ON THE GENERAL AUTHORITY OF THE SERVICE SECRETARIES
TO DETAIL MILITARY PERSONNEL OUTSIDE THE DEPARTMENT OF DEFENSE IS THAT
THE FUNCTIONS OR DUTIES OF THE PERSON DETAILED MUST BE IN FURTHERANCE OF
A NATIONAL DEFENSE PURPOSE OR RESPONSIBILITY.
HE ALSO INDICATES THAT THE OFFICE OF PETROLEUM ALLOCATION WAS
ESTABLISHED BY ORDER OF THE SECRETARY OF THE INTERIOR ON NOVEMBER 6
1973, WITH DELEGATED AUTHORITY REGARDING PETROLEUM PRODUCTS UNDER
SECTION 203(A)(3) OF THE ECONOMIC STABLILIZATION ACT OF 1970, AS ADDED
BY THE ECONOMIC STABILIZATION ACT AMENDMENTS OF 1973, PUBLIC LAW 83-28,
APPROVED APRIL 30, 1973, 87 STAT. 27. SECTION 203(A)(3) AUTHORIZES THE
ISSUANCE OF ORDERS AND REGULATIONS TO PROVIDE FOR "THE ESTABLISHMENT OF
PRIORITIES OF USE AND FOR SYSTEMATIC ALLOCATION OF SUPPLIES OF PETROLEUM
PRODUCTS INCLUDING CRUDE OIL ***." THE SPECIAL ASSISTANT INDICATES THAT
THE OFFICE OF PETROLEUM ALLOCATION EXERCISED THIS STATUTORY AUTHORITY
UNTIL DECEMBER 4. 1973, WHEN THAT AUTHORITY WAS DELEGATED TO THE
ADMINISTRATOR OF THE FEDERAL ENERGY OFFICE.
THE SPECIAL ASSISTANT STATES THAT DURING THIS TIME PERIOD, WHICH WAS
MARKED BY ACCELERATING FUEL SHORTAGES IN MANY REGIONS OF THE COUNTRY,
THE OFFICE OF PETROLEUM ALLOCATION WAS RESPONSIBLE FOR THE DEVELOPMENT
OF NATIONAL ALLOCATION POLICIES AND PRIORITIES AND FOR THE
IMPLEMENTATION OF NATIONAL ALLOCATON PROGRAMS. HE FURTHER STATES THAT
SINCE THE READINESS OF UNITED STATES FORCES IS CONTINGENT UPON
UNINTERRUPTED SUPPLIES OF FUEL FOR OPERATIONS AND TRAINING, THERE WAS A
COMPELLING NATIONAL DEFENSE INTEREST IN THE PROMPT AND EFFICIENT
EXECUTION OF THE OFFICE OF PETROLEUM ALLOCATION'S ALLOCATION POLICIES
AND PROGRAMS.
THE SPECIAL ASSISTANT STATES THAT FOR TIS REASON THE TEMPORARY DETAIL
OF FOUR ACTIVE DUTY MILITARY OFFICERS TO THE OFFICE OF PETROLEUM
ALLOCATION WAS REASONABLY IN FURTHERANCE OF A LEGITIMATE DEFENSE
PURPOSE, AND CONSEQUENTLY, WAS WITHIN THE AUTHORITY AND DISCRETION OF
THE SECRETARIES OF THEIR RESPECTIVE MILITARY DEPARTMENTS. HE ALSO
STATES THAT, IN ADDITION, THE DETAIL OF THESE OFFICERS DID NOT VIOLATE
THE PROVISIONS OF 10 U.S.C. 973(A) BECAUSE THE OFFICERS'
RESPONSIBILITIES AT THE OFFICE OF PETROLEUM ALLOCATION WERE IN PURSUANCE
OF THEIR ASSIGNED MILITARY DUTIES.
HE FURHTER INDICATES THAT THE ASSIGNMENTS OF THESE OFFICERS WERE IN
RESPONSE TO THE REQUEST OF THE DEPARTMENT OF THE INTERIOR TO CONTRIBUTE
PERSONNEL WITH THE APPROPRIATE EXPERTISE TO ASSIST IN THE EARLY
DEVELOPMENT OF THE NATIONAL ENERGY EFFORT. HE FURHTER INDICATES THAT
NOW THAT A COMPREHENSIVE ENERGY PROGRAM HAS BEEN IN FULL OPERATION FOR
SIX MONTHS UNDER THE FEDERAL ENERGY OFFICE, THE DEPARTMENT OF DEFENSE IS
CONFIDENT THAT THE SERVICES OF ACTIVE DUTY MILITARY PERSONNEL "WILL NOT
BE REQUIRED TO AS GREAT AN EXTENT."
THE PROVISIONS OF 10 U.S.C. 973(A) ARE THE CODIFICATION OF STATUTES
DERIVED FROM SECTION 31 OF THE ACT OF JULY 5, 1838, CH. 162, 5 STAT.
260, WHICH ORIGINALLY APPLIED ONLY TO ARMY OFFICERS. SECTION 4(A)(5)(A)
OF PUBLIC LAW 90-235, APPROVED JANUARY 2, 1968, 81 STAT. 759, ENACTED
10 U.S.C. 973(A) IN ITS PRESENT FORM AND EXTENDED ITS APPLICATION TO
INCLUDE OFFICERS OF THE REGULAR ARMY, REGULAR NAVY, REGULAR AIR FORCE,
REGULAR MARINE CORPS AND REGULAR COAST GUARD.
AS WE STATED IN OUR APRIL 17, 1974 LETTER TO YOU, THE ATTORNEY
GENERAL HELD IN 16 OP. ATTY. GEN. 499 (1880) THAT A PREDECESSOR STATUTE
(SECTION 1224 R.S.) TO 10 U.S.C. 973(A) WOULD NOT PERMIT THE DETAIL OF
AN ARMY OFFICER TO THE DEPARTMENT OF THE INTERIOR TO AID IN THE
PERFORMANCE OF GEOLOGICAL SURVEY (A CLEARLY CIVIL WORK), ALTHOUGH IT WAS
RECOGNIZED THAT SUCH A SURVEY MUST ALWAYS HAVE GREAT MILITARY VALUE. IN
SO HOLDING, THE ATTORNEY GENERAL INDICATED THAT THE STATUTE WOULD NOT
APPLY IF THE MILITARY OFFICER WERE TO PERFORM A STRICTLY MILITARY DUTY
IN CONNECTION WITH THE SURVEY - SUCH AS HAVING CHARGE OF ITS ESCORT.
SEE ALSO 19 OP. ATTY. GEN. 600 (1890) AND 30 OP. ATTY. GEN. 184 (1913).
IN REGARD TO THE GENERAL QUESTION OF THE USE OF THE MILITARY FORCES FOR
CIVIL FUNCTIONS SEE 33 OP ATTY. GEN. 562 (1923).
WE ALSO STATED IN THE APRIL 17, 1974 LETTER THAT IN VIEW OF 10 U.S.C.
973, AND PREDECESSOR STATUTES, THIS OFFICE HAS LONG HELD THAT THERE MUST
BE STATUTORY AUTHORITY FOR DETAILING OFFICERS ON THE ACTIVE LIST TO DUTY
IN THE CIVIL BRANCHES OF THE GOVERNMENT. SEE 19 COMP. GEN. 826, 828
(1940).
WHILE WE RECOGNIZE THE VARIOUS SERVICE ASSIGN, DETAIL AND PRESCRIBE
THE DUTIES OF THE PERSONNEL UNDER THEM, SECRETARIES' GENERAL AUTHORITY
UNDER 10 U.S.C. 3012, 8012, OR 5031 TO IT IS OUR VIEW THAT SUCH GENERAL
AUTHORITY IS SUBJECT TO THE SPECIFIC LIMITATIONS PROVIDED BY OTHER
STATUTUES SUCH AS 10 U.S.C. 973 WHICH APPLY TO PARTICULAR CLASSES AND
PARTICULAR SITUATIONS. THAT VIEW IS SUPPORTED BY THE GENERAL RULE OF
STATUTORY CONSTRUCTION TO THE EFFECT THAT WHERE ONE STATUTE DEALS WITH A
SUBJECT IN GENERAL TERMS, AND ANOTHER DEALS WITH A PART OF THE SAME
SUBJECT IN A MORE DETAILED WAY, THE TWO SHOULD BE HARMONIZED IF
POSSIBLE; BUT IF THERE IS ANY CONFLICT, THE MORE SPECIFIC STATUTE WILL
PREVAIL. SEE SUTHERLAND, STATUTORY CONSTRUCTION, 4TH EDITION, VOL.
2A,___ 51.05, PAG 315.
IT SEEMS CLEAR THAT CONGRESS INTENDED THAT 10 U.S.C. 973 REMAIN
EFFECTIVE SINCE, AS NOTED ABOVE, IN RECODIFYING THE STATUTE IN 1968, IT
BROADENED ITS APPLICATION TO COVER ALL OF THE ARMED FORCES. IN THIS
REGARD, IT IS TO BE NOTED THAT THERE HAS BEEN CONTINUING CONGRESSIONAL
RECOGNITION OF THIS PROSCRIPTION BY INCLUDING SPECIFIC LANGUAGE IN
VARIOUS STATUTES IN ORDER TO COVER SITUATIONS IN WHICH IT DESIRED
MILITARY OFFICERS TO BE ASSIGNED OR DETAILED TO CIVILIAN AGENCIES. SEE
THE FOLLOWING EXAMPLES OF STATUTES AUTHORIZING SUCH ASSIGNMENTS OR
DETAILS: SECTION 41(C) OF THE ARMS CONTROL AND DISARMAMENT ACT, PUBLIC
LAW 87-297, SEPTEMBER 26, 1961, 75 STAT. 635, 22 U.S.C. 2581(C) (ARMS
CONTROL AND DISARMAMENT AGENCY); 10 U.S.C. 719 (ENVIRONMENTAL SCIENCE
SERVICES ADMINISTRATION); 10 U.S.C. 713 (DEPARTMENT OF STATE); 23
U.S.C. 312 (BUREAU OF PUBLIC ROADS); AND SECTION 203(B)(12) OF THE
NATIONAL AERONAUTICS AND SPACE ACT OF 1958, PUBLIC LAW 85-568, JULY 29,
1958, 72 STAT. 431, 42 U.S.C. 2473(B)(12) (ATIONAL AERONAUTICS AND SPACE
ADMINISTRATION).
THUS, IT REMAINS OUR VIEW THAT STATUTORY AUTHORITY IS NECESSARY FOR
THE DETAILING OR ASSIGNING OF REGULAR MILITARY OFFICERS TO DUTY IN THE
CIVIL BRANCHES OF THE GOVERNMENT.
IN REGARD TO STATUTORY AUTHORITY FOR THE DETAIL OF THE OFFICERS IN
QUESTION HERE WE NOTE THAT SECTION 212(E) OF THE ECONOMIC STABILIZATION
ACT OF 1970 AS ADDED BY THE ECONOMIC STABILIZATION ACT AMENDMENTS OF
1971, PUBLIC LAW 92-210, 85 STAT. 743, 751, PROVIDES THAT THE PRESIDENT
MAY REQUIRE THE DETAIL OF "EMPLOYEES" FROM ANY EXECUTIVE AGENCY TO CARRY
OUT THE PURPOSES OF THE ACT. NO SPECIFIC PROVISION IS MADE FOR THE
DETAIL OF REGULAR ACTIVE DUTY MILITARY OFFICERS. HOWEVER, SECTION 204
OF THE ACT PROVIDES IN PART THAT THE PRESIDENT MAY DELEGATE THE
PERFORMANCE OF ANY FUNCTION UNDER THE ACT TO SUCH "OFFICERS,
DEPARTMENTS, AND AGENCIES OF THE UNITED STATES AS HE DEEMS APPROPRIATE."
PURSUANT TO HIS AUTHORITY UNDER THE ECONOMIC STABILIZATION ACT OF
1970, AS AMENDED, THE PRESIDENT CREATED THE COST OF LIVING COUNCIL BY
EXECUTIVE ORDER 11695, JANUARY 11, 1973, 3 C.F.R. P. 353 (1974). BY
SECTION 2(A) OF THAT EXECUTIVE ORDER THE PRESIDENT DELEGATED TO THE
CHAIRMAN OF THE COST OF LIVING COUNCIL "ALL THE POWERS AND DUTIES"
CONFERRED UPON THE PRESIDENT BY THE ECONOMIC STABILIZATION ACT OF 1970,
AS AMENDED. SECTION 4(B) OF EXECUTIVE ORDER 11695 AUTHORIZED THE
CHAIRMAN TO REDELEGATE TO ANY AGENCY, INSTRUMENTALITY, OR OFFICIAL OF
THE UNITED STATES ANY AUTHORITY UNDER THAT EXECUTIVE ORDER AND PROVIDED
THAT HE MAY "UTILIZE THE SERVICES OF ANY OTHER AGENCY, FEDERAL OR STATE,
AS MAY BE AVAILABLE OR APPROPRIATE." SECTION 4(C) PROVIDED AMONG OTHER
THINGS, THAT ON REQUEST OF THE CHAIRMAN, EACH EXECUTIVE DEPARTMENT OR
AGENCY SHALL PROVIDE SUCH OTHER ASSISTANCE IN CARRYING OUT THE
PROVISIONS OF THE ORDER AS IS PERMITTED BY LAW.
PURSUANT TO SUCH AUTHORITY THE CHAIRMAN OF THE COST OF LIVING COUNCIL
DELEGATED HIS AUTHORITY WITH RESPECT TO PETROLEUM PRODUCTS TO THE
DIRECTOR OF THE ENERGY POLICY OFFICE. SEE COST OF LIVING COUNCIL ORDER
39, AUGUST 21, 1973, 6 C.F.R. P. 451 (1974). THE DIRECTOR OF THE ENERGY
POLICY OFFICER REDELEGATED CERTAIN PARTS OF SUCH AUTHORITY TO THE
SECRETARY OF THE INTERIOR BY ORDER DATED OCTOBER 19, 1973, 38 FED. REG.
29379 (1973), AND THE SECRETARY OF THE INTERIOR BY ORDER NO. 2956,
NOVEMBER 6, 1973, ESTABLISHED THE OFFICE OF PETROLEUM ALLOCATION AND
DELEGATED SUCH AUTHORITY TO ITS ADMINISTRATOR.
IT WAS APPARENTLY PURSUANT TO THAT DELEGATION OF AUTHORITY THAT THE
DEPARTMENT OF THE INTERIOR REQUESTED THE DEPARTMENT OF DEFENSE TO
CONTRIBUTE PERSONNEL. WHILE AS IS NOTED ABOVE, THE ECONOMIC
STABILIZATION ACT OF 1970 DOES NOT SPECIFICALLY AUTHORIZE THE DETAIL OF
MILITARY OFFICERS TO A CIVILIAN AGENCY, IT DOES AUTHORIZE THE PRESIDENT
TO DELEGATE THE PERFORMANCE OF THE FUNCTIONS OF THE ACT TO OTHER
"OFFICERS, DEPARTMENTS, AND AGENCIES," AND THE PRESIDENT DID DELEGATE
SUCH AUTHORITY, WHICH AUTHORITY WAS EVENTUALLY REDELEGATED TO THE OFFICE
OF PETROLEUM ALLOCATION.
ACCORDINGLY, WHILE THE MATTER IS NOT ENTIRELY FREE FROM DOUBT, WE
WILL NOT QUESTION FURTHER THE ASSIGNMENT OF THE MILITARY OFFICERS IN
QUESTION TO THE OFFICE OF PETROLEUM ALLOCATION.
SINCERELY YOURS,
SIGNED ELMER B. STAATS
COMPTROLLER GENERAL OF THE UNITED STATES
B-179583, JUL 31, 1974
HEADNOTES-UNAVAILABLE
TEMPORARY QUARTERS ALLOWANCE MAY NOT BE PAID TO EMPLOYEE WHO, FOR 11
MONTHS PRIOR TO TRANSFER, HAD BEEN DETAILED TO AREA OF NEW DUTY STATION
WHERE, FOR PERIOD FOR WHICH HE CLAIMS TEMPORARY QUARTERS ALLOWANCE, HE
AND HIS FAMILY CONTINUED TO OCCUPY RENTED APARTMENT IN WHICH THEY HAD
RESIDED DURING DETAIL. SUBSECTION 8.2C OF OMB CIRCULAR NO. A-56,
REVISED AUGUST 17, 1971, DEFINES TEMPORARY QUARTERS IN TERMS OF LODGINGS
OCCUPIED AFTER EMPLOYEE AND/OR FAMILY VACATE RESIDENCE QUARTERS IN WHICH
THEY WERE RESIDING AT THE TIME THE TRANSFER WAS AUTHORIZED.
THIS ACTION IS UPON THE REQUEST BY AN AUTHORIZED CERTIFYING OFFICER
FOR THE INTERNAL REVENUE SERVICE (IRS) FOR AN OPINION AS TO THE
ENTITLEMENT OF MR. WALTER C. JONES, AN IRS EMPLOYEE, TO AN ALLOWANCE
FOR TEMPORARY QUARTERS FOR THE PERIOD FROM JUNE 11, 1972, THROUGH JUNE
18, 1972. MR. JONES, WHO HAS BEEN ALLOWED TEMPORARY QUARTERS EXPENSES
IN THE AMOUNT OF $84 FOR THE PERIOD FROM JUNE 11 THROUGH JUNE 18 HAS NOW
SUBMITTED A SUPPLEMENTAL VOUCHER IN THE AMOUNT OF $73.50 FOR TEMPORARY
LODGING EXPENSES FOR THAT SAME PERIOD.
PRIOR TO HIS CHANGE OF OFFICIAL STATION FROM JACKSONVILLE TO MIAMI,
FLORIDA, ON AUGUST 11, 1972, MR. JONES HAD BEEN DETAILED TO THE MIAMI
AREA. HIS LETTER DATED NOVEMBER 15, 1972, ON THE SUBJECT OF HIS MOVING
EXPENSES STATES THAT HIS FAMILY ACCOMPANIED HIM TO MIAMI ON JULY 16.
1971, IN CONNECTION WITH THAT DETAIL AND THAT THEY RESIDED IN MIAMI FOR
THE PERIOD OF HIS DETAIL IN A RENTED APARTMENT. THE EMPLOYEE AND HIS
FAMILY WERE OCCUPYING THOSE LEASED QUARTERS AT THE DATE OF HIS TRANSFER
ON JUNE 11, 1972, AND REMAINED THERE UNTIL JUNE 18, 1972, WHEN THEY
MOVED INTO A HOUSE IN THE MIAMI AREA THAT THE EMPLOYEE HAD PURCHASED.
MR. JONES HAS INDICATED THAT FOR THE PERIOD AFTER JUNE 11, 1972, AND
UNTIL JUNE 25, 1972, 30 DAYS AFTER HE HAD GIVEN WRITTEN NOTICE OF HIS
INTENT TO TERMINATE THE LEASE, HE WAS REQUIRED TO PAY RENT IN THE AMOUNT
OF $157.50 AND BY HIS SUPPLEMENTAL VOUCHER HAS CLAIMED ADDITIONAL
TEMPORARY QUARTERS EXPENSES FOR THE PERIOD FROM JUNE 11 THROUGH JUNE 18
BASED ON THAT TOTAL AMOUNT WHICH HE INDICATES HE WAS REQUIRED TO PAY
REGARDLESS OF THE FACT THAT HE IN FACT CEASED TO OCCUPY THE APARTMENT A
WEEK BEFORE THE JUNE 25TH DATE. THUS, HE CLAIMS A DAILY LODGING COST
THE $19.69 FOR THE PERIOD FROM JUNE 11 THROUGH JUNE 18. ON THE BASIS OF
HIS ORIGINAL VOUCHER MR. JONES HAS BEEN PAID TEMPORARY LODGING EXPENSES
BASED ON A DAILY LODGING COST OF $10.50. THUS, THE $84 PAYMENT HE HAS
RECEIVED IS THAT SHARE OF THE $157.50 RENT PAYABLE FOR THE PERIOD FROM
JUNE 11 THROUGH JUNE 25 PRORATED FOR THE PERIOD OF HIS ALLEGED OCCUPANCY
OF TEMPORARY QUARTERS FROM JUNE 11 THROUGH JUNE 18.
THE CERTIFYING OFFICER QUESTIONS WHETHER THE $84 PAYMENT FOR LODGING
EXPENSES WAS PROPER AND IF SO, WHETHER THE SUPPLEMENTAL VOUCHER MAY BE
CERTIFIED FOR PAYMENT. IN REGARD TO THE FIRST QUESTION PRESENTED, THE
CERTIFYING OFFICER SPECIFICALLY QUESTIONS WHETHER THE APARTMENT WHICH
THE EMPLOYEE AND HIS FAMILY OCCUPIED FOR THE PERIOD FROM JUNE 11 THROUGH
JUNE 18 CONSTITUTES TEMPORARY QUARTERS.
SECTION 8 OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, AS
REVISED AUGUST 17. 1971, PROVIDES FOR THE PAYMENT OF SUBSISTENCE
EXPENSES OF THE EMPLOYEE AND HIS IMMEDIATE FAMILY WHILE OCCUPYING
TEMPORARY QUARTERS WHEN AN EMPLOYEE IS TRANSFERRED TO A NEW OFFICIAL
STATION. SUBSECTION 8.2 PROVIDES IN PERTINENT PART AS FOLLOWS:
"8.2 CONDITIONS AND LIMITATIONS FOR ELIGIBILITY
"C. WHAT CONSTITUTES TEMPORARY QUARTERS. TEMPORARY QUARTERS REFERS
TO ANY LODGING OBTAINED FROM PRIVATE OR COMMERCIAL SOURCES TO BE
OCCUPIED TEMPORARILY BY THE EMPLOYEE AND/OR MEMBERS OF HIS IMMEDIATE
FAMILY WHO HAVE VACATED THE RESIDENCE QUARTERS IN WHICH THEY WERE
RESIDING AT THE TIME THE TRANSFER WAS AUTHORIZED."
IN OUR DECISION B-176531, MARCH 12, 1973, WE CONSIDERED THAT
PARTICULAR STATUTORY LANGUAGE IN THE CONTEXT OF A SITUATION VERY SIMILAR
TO MR. JONES'. IN THAT CASE, THE EMPLOYEE HAD BEEN DETAILED TO SAN
FRANCISCO ON JULY 1, 1969, AND REMAINED SO DETAILED UNTIL HE WAS
UNTIMATELY TRANSFERRED THERE ON A PERMANENT BASIS ON JULY 31, 1971. AT
THE DATE OF HIS TRANSFER HE WAS RESIDING IN SAN FRANCISCO IN THE RENTED
APARTMENT IN WHICH HE HAD BEEN LIVING FOR SOME TIME AND CONTINUED TO
LIVE THERE DURING THE PERIOD FOR WHICH HE CLAIMED TEMPORARY QUARTERS
EXPENSES. WE HELD THAT UNDER THE LANGUAGE OF THE ABOVE REGULATION THE
EMPLOYEE WAS NOT ENTITLED TO TEMPORARY QUARTERS EXPENSES INASMUCH AS HE
HAD NOT VACATED THE RESIDENCE QUARTERS IN WHICH HE WAS RESIDING AT THE
TIME OF TRANSFER. FOR THE SAME REASON, WE FIND THAT MR. JONES IS NOT
ENTITLED TO PAYMENT OF TEMPORARY QUARTERS EXPENSES FOR THE PERIOD FROM
JUNE 11 THROUGH JUNE 18 DURING WHICH HE CONTINUED TO RESIDE IN THE
APARTMENT HE HAD OCCUPIED FOR SOME TIME PRIOR TO TRANSFER. WE THEREFORE
FIND NO NECESSITY TO ADDRESS THE SECOND QUESTION, PERTAINING TO THE
SUPPLEMENTAL VOUCHER, RAISED BY THE CERTIFYING OFFICER.
APPROPRIATE ACTION SHOULD BE TAKEN TO RECOVER THE $84 AMOUNT
PREVIOUSLY PAID TO THE EMPLOYEE IN CONNECTION WITH HIS ALLEGED OCCUPANCY
OF TEMPORARY QUARTERS DURING THE PERIOD IN QUESTION.
B-179866, JUL 31, 1974
HEADNOTES-UNAVAILABLE
NAVY MEMBER WHO WHILE ON AUTHORIZED LEAVE WAS ARRESTED BY CIVILIAN
AUTHORITIES AND THEN RESTRICTED TO STATE OF SOUTH DAKOTA WHILE AWAITING
TRIAL, AT WHICH HE WAS CONVICTED, AND WHO APPARENTLY PERFORMED NO DUTIES
COMMENSURATE WITH GRADE OR SPECIALTY IS NOT ENTITLED TO PAY AND
ALLOWANCES DURING PERIOD SUBSEQUENT TO AUTHORIZED LEAVE AS ABSENCE WAS
RESULT OF OWN MISCONDUCT AND WAS NOT EXCUSED AS UNAVOIDABLE.
TO SAMUEL L. BALSLEY:
THIS ACTION IS IN RESPONSE TO LETTER DATED JULY 16, 1973 (FILE
REFERENCE 300:DMT:RR 7220), WITH ENCLOSURES, FROM THE DEPUTY DISBURSING
OFFICER, NAVY REGIONAL FINANCE CENTER, GREAT LAKES, ILLINOIS, REQUESTING
AN ADVANCE DECISION AS TO THE LEGALITY OF CREDITING THE PAY ACCOUNT OF
SAMUEL L. BALSLEY, CS2, USN, 000-00-7376, WITH BASIC ALLOWANCE FOR
QUARTERS, BASE PAY AND STANDARD MAINTENANCE ALLOWANCE FOR THE PERIOD
FROM JULY 16, 1972, THROUGH MARCH 20, 1973. THE REQUEST WAS FORWARDED
TO THIS OFFICE BY ENDORSEMENT OF THE COMPTROLLER OF THE NAVY, DATED
OCTOBER 11 1973 (FILE REFERENCE NCF-411 7220/MPAC), AND HAS BEEN
ASSIGNED SUBMISSION NUMBER DO-N-1205 BY THE DEPARTMENT OF DEFENSE
MILITARY PAY AND ALLOWANCE COMMITTEE.
IT APPEARS THAT WHILE ON AUTHORIZED EMERGENCY LEAVE FROM THE U.S.S.
COUCAL (ASR-8) HOMEPORTED AT PEARL HARBOR, HAWAII, THE MEMBER WAS TAKEN
INTO CUSTODY BY CIVIL AUTHORITIES IN RAPID CITY, SOUTH DAKOTA, ON JULY
7, 1972, AND CHARGED WITH POSSESSION OF MARIJUANA. HE WAS HELD IN JAIL
OVERNIGHT AND THEN RELEASED ON BOND, THE TERMS OF WHICH RESTRICTED HIS
MOVEMENT TO THE STATE OF SOUTH DAKOTA PENDING DISPOSITION OF THE CASE.
THE RECORD SHOWS THAT WHILE STILL IN A LEAVE STATUS, PETTY OFFICER
BALSLEY CONSULTED PERSONNEL AT THE NAVY RECRUITING STATION IN RAPID CITY
REGARDING HIS INABILITY TO LEAVE THE STATE. TELEPHONIC APPROVAL FROM
THE COMMANDANT, NINTH NAVAL DISTRICT, GREAT LAKES, ILLINOIS, WAS
OBTAINED FOR THE MEMBER TO REMAIN WITHIN THE AREA UNTIL DISPOSITION OF
HIS CASE. ACCORDING TO THE SUBMISSION, THE MEMBER'S AUTHORIZED LEAVE
EXPIRED ON JULY 15, 1972, BUT HE REMAINED IN SOUTH DAKOTA DURING THE
PERIOD FROM JULY 16, 1972, UNTIL MARCH 20, 1973.
THE DISBURSING OFFICER INDICATES THAT DURING THIS PERIOD, PETTY
OFFICER BALSLEY APPEARED AT THE RECRUITING STATION FROM TIME TO TIME
USUALLY BECAUSE OF HIS OWN PERSONAL PROBLEMS WITH THE NAVY. A REPORT
FROM THE COMMANDANT, NINTH NAVAL DISTRICT, STATES THAT ALTHOUGH THE
MEMBER DID NOT HAVE SCHEDULED MUSTERS WITH THE RECRUITING STATION HE
REPORTED THERE ON THE AVERAGE OF TWO TO FOUR TIMES PER WEEK AND
FREQUENTLY DID ODD JOBS AT THE STATION.
ON MARCH 9, 1973, HE WAS TRIED, FOUND GUILTY AND SENTENCED TO ONE
YEAR'S PROBATION. THE MEMBER RETURNED TO MILITARY JURISDICTION ON MARCH
21, 1973.
TITLE 37 OF THE UNITED STATES CODE, SECTION 503(A), PROVIDES THAT:
"A MEMBER OF THE ARMY, NAVY, AIRFORCE, MARINE CORPS, COAST GUARD, OR
ENVIROMENTAL SCIENCE SERVICES ADMINISTRATION, WHO IS ABSENT WITHOUT
LEAVE OR OVER LEAVE, FORFEITS ALL PAY AND ALLOWANCES FOR THE PERIOD OF
THAT ABSENCE, UNLESS IT IS EXCUSED AS UNAVOIDABLE."
THIS OFFICE CONSISTENTLY HAS HELD THAT DURING PERIODS OF DETENTION BY
CIVIL AUTHORITIES A MEMBER IS ENTITLED TO PAY FOR SUCH PART OF THE
PERIOD OF THE DETENTION AS IS COVERED BY AN AUTHORIZED GRANT OF LEAVE,
BUT A MEMBER NOT ON AUTHORIZED LEAVE WHOSE MISCONDUCT HAS CAUSED HIM TO
BE IN THE HANDS OF CIVIL AUTHORITIES AND THUS UNABLE TO FULFILL THE
OBLIGATION TO BE AT HIS POST OF DUTY MUST BE REGARDED AS ABSENT WITHOUT
LEAVE AND HIS PAY FOR SUCH PERIOD OF UNAUTHORIZED ABSENCE IS FORFEITED.
36 COMP. GEN. 173, 175 (1956).
WE HELD IN DECISION, B-132595, AUGUST 26, 1957, THAT WHERE THE MEMBER
WAS CONFINED TO HIS MILITARY BASE FOR CIVILIAN AUTHORITIES, THE TERM
"CONFINEMENT" AS USED IN 36 COMP. GEN. 173, SUPRA, DID NOT INCLUDE
PERIODS WHEN THE MEMBER IS IN A DUTY STATUS WHILE AWAITING CIVIL TRIAL
EVEN THOUGH HIS AREA OF MOVEMENT IS RESTRICTED DURING SUCH PERIODS.
IN THE PRESENT CASE, THE MEMBER WAS NOT PRESENT AT HIS PERMANENT DUTY
STATION, U.S.S. COUCAL DURING THE PERIOD IN QUESTION, NOR WAS HE
ASSIGNED TO TEMPORARY DUTY AT THE RECRUITING STATION IN RAPID CITY, IN
SPITE OF THE FACT THAT THE MEMBER RECEIVED TELEPHONIC APPROVAL TO REMAIN
IN THE AREA UNTIL THE DISPOSITION OF HIS CASE. FURTHER, WHILE ITS IS
INDICATED THAT THE MEMBER DID APPEAR AT THE NAVY RECRUITING STATION ON
THE AVERAGE OF TWICE A WEEK, THERE IS CONFLICTING EVIDENCE AS TO WHAT HE
DID AT THE RECRUITING STATION. IN ANY EVENT IT DOES NOT APPEAR THAT HE
PERFORMED THE DUTIES COMMENSURATE WITH HIS RANK AND GRADE. COMPARE 52
COMP. GEN. 317 (1972).
THERE IS NOTHING OF RECORD TO INDICATE THAT PETTY OFFICER BALSLEY'S
ABSENCE WAS EXCUSED BY HIS COMMANDING OFFICER OR ANY OTHER AUTHORITY, AS
UNAVOIDABLE. FURTHERMORE, SUCH ACTION, IN VIEW OF THE MEMBER'S
CONVICTION BY THE CIVIL COURT, WOULD NOT APPEAR TO BE PROPER AS IT IS
CLEARLY EVIDENT THAT THE MEMBER PLACED HIMSELF IN A SITUATION WHERE HIS
ABSENCE WAS A LOSS TO THE GOVERNMENT OF HIS SERVICES AS A DIRECT RESULT
OF THE CIVIL OFFENSE WHICH HE COMMITTED. SEE 45 COMP. GEN. 766 (1966).
CONSEQUENTLY, BASED ON THE RECORD BEFORE US, IT IS OUR VIEW THAT THE
MEMBER'S PAY ACCOUNT MAY NOT BE CREDITED WITH PAY AND ALLOWANCES FOR ANY
PORTION OF THE PERIOD FROM JULY 16, 1972, THROUGH MARCH 20, 1973.
B-181107, JUL 31, 1974
HEADNOTES-UNAVAILABLE
NAVY PREVAILING RATE EMPLOYEE'S CLAIM FOR RETROACTIVE PAY AT RATES
HIGHER THAN THOSE ESTABLISHED UPON INITIAL CONVERSION TO COORDINATED
FEDERAL WAGE SYSTEM IN 1968 AND AFTER FAVORABLE ACTION ON JOB-GRADING
APPEAL IN 1970 WAS PROPERLY DENIED, EVEN THOUGH HIS PAY WOULD HAVE BEEN
HIGHER WITHOUT APPEAL, SINCE PAY RATE AND ITS EFFECTIVE DATE WERE
PROPERLY FIXED IN ACCORDANCE WITH REGULATION, THE COMPTROLLER GENERAL
HAS NO JURISDICTION BECAUSE THE ADMINISTRATIVE AGENCIES AND CIVIL
SERVICE COMMISSION HAVE FINAL AUTHORITY TO CLASSIFY POSITIONS AND TO
CONSIDER APPEALS, AND IN THE ABSENCE OF A STATUTE PAY RATE CHANGES MAY
NOT BE MADE RETROACTIVELY.
TO MR. WERNER A. NESTLER:
THIS DECISION IS IN RESPONSE TO A REQUEST FOR RECONSIDERATION OF OUR
TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT OF MAY 8, 1973,
DISALLOWING THE CLAIM OF MR. WERNER A. NESTLER, A FORMER PREVAILING
RATE SUPERVISORY EMPLOYEE OF THE DEPARTMENT OF THE NAVY, FOR ADDITIONAL
COMPENSATION ALLEGED TO BE DUE FROM DECEMBER 15, 1968, TO JUNE 30, 1972.
THE RECORD INDICATES THAT BY LETTER DATED AUGUST 18, 1970, MR.
NESTLER, A TOOLMAKER GENERAL FOREMAN, APPEALED THE GRADE OF HIS
POSITION, WS-14, STEP 4, $7.10 PER HOUR, STATING THE HE BELIEVED IT TO
BE AN ERROR AND THAT HIS PAY GRADE SHOULD HAVE BEEN WS-15, STEP 4, SINCE
DECEMBER 15, 1968, WHEN HIS POSITION WAS CONVERTED TO THE COORDINATED
FEDERAL WAGE SYSTEM (CFWS). BY APPLICATION OF THE NEW CIVIL SERVICE
COMMISSION JOB GRADING STANDARD FOR SUPERVISORS RECEIVED DURING THE
PENDENCY OF THIS APPEAL, IT WAS DETERMINED BY THE NAVY DEPARTMENT'S
OFFICE OF CIVILIAN MANPOWER MANAGEMENT (OCCM) ON OCTOBER 22, 1970, THAT
MR. NESTLER'S POSITION SHOULD BE GRADED AT THE WS-15 LEVEL, EFFECTIVE AS
OF THE FIRST PAY PERIOD AFTER OCTOBER 17, 1970. HOWEVER, OCCM HELD THAT
HE WAS NOT ENTITLED TO RETROACTIVE PAY FROM DECEMBER 15, 1968. MR.
NESTLER'S PAY RATE WAS THEN SET AT STEP 3 OF WS-15, $7.10, EFFECTIVE
OCTOBER 18, 1970.
IN HIS REQUEST FOR RECONSIDERATION, MR. NESTLER CONTENDS THAT IN
DENYING HIS ENTITLEMENT TO RETROACTIVE PAY, THE NAVY IN FACT DENIED HIS
APPEAL AND THAT EITHER HE SHOULD BE ALLOWED TO RETROACTIVELY WITHDRAW
HIS APPEAL APPLICATION, OR THAT THE ENTIRE APPEAL ACTION BE NULLIFIED.
HE INDICATES THAT HAD HIS APPEAL BEEN DENIED AND HAD HE CONTINUED AT THE
WS-14 LEVEL UNTIL DECEMBER 1970, HE WOULD HAVE RECEIVED A WITHIN-GRADE
INCREASE TO STEP 5 OF THAT LEVEL AND WOULD HAVE BEEN SUBSEQUENTLY PLACED
IN STEP 5 OF WS-15 IN JANUARY 1971 AT A RATE OF $8.42 PER HOUR WHICH
WOULD HAVE BEEN A HIGHER PAY RATE THAN HE ACTUALLY RECEIVED WHEN THE
ACTIVITY APPLIED THE NEW JOB-GRADING STANDARD FOR SUPERVISORS. HE ALSO
CONTENDS THAT HIS ANNUITY ON RETIREMENT WOULD HAVE BEEN HIGHER BUT FOR
THE APPEAL ACTION WHICH DENIED A RETROACTIVE PAY INCREASE.
SUBCHAPTER S7-3A(3), FEDERAL PERSONNEL MANUAL (FPM) SUPPLEMENT 532-1
PROVIDES AS FOLLOWS CONCERNING APPEALS OF PAY RATES UNDER CFWS:
"(3) WHEN A FINAL DECISION UPHOLDS THE EMPLOYEE'S APPLICATION, THE
EFFECTIVE DATE FOR THE CHANGE IN THE GRADE MAY NOT BE LATER THAN THE
BEGINNING OF THE FIRST PAY PERIOD WHICH BEGINS AFTER THE 60TH DAY FROM
THE DATE THE APPLICATION WAS FILED."
SUBCHAPTER S10-8C(2), FPM SUPPLEMENT 532-1, PROVIDES THE FOLLOWING
CONCERNING THE INITIAL APPLICATION OF JOB-GRADING SYSTEM AND STANDARDS
DURING THE TOTAL CONVERSION PERIOD TO CFWS TO AN EMPLOYEE'S PAY RATE.
"(2) IF HIS EXISTING RATE IS WITHIN THE RATE RANGE FOR HIS NEW GRADE,
HE IS PAID AT HIS EXISTING RATE IF THIS IS ONE OF THE RATES OF HIS
GRADE; OTHERWISE, HE IS PAID THAT RATE OF HIS NEW GRADE WHICH IS NEXT
ABOVE HIS EXISTING RATE OF PAY."
AT THE TIME OF MR. NESTLER'S APPEAL DECISION THE RATE FOR STEP 3,
WS-15, WAS THE SAME AS THAT FOR HIS RATE OF STEP 4, WS-14, $7.10 PER
HOUR. THE PAY RATE AND ITS EFFECTIVE DATE WERE SET IN ACCORDANCE WITH
THE CITED REGULATIONS. MR. NESTLER SUBSEQUENTLY APPEALED THE NAVY
DECISION TO THE SAN FRANCISCO REGION OF THE CIVIL SERVICE COMMISSION.
THE REGIONAL OFFICE ADVISED MR. NESTLER THAT THE NAVY ACTIONS WERE IN
ACCORD WITH COMMISSION REGULATIONS AND DID NOT ACCEPT HIS APPEAL.
ACCORDINGLY, THERE IS NO BASIS UPON WHICH TO DISAGREE WITH THE NAVY
DETERMINATION.
MOREOVER, IT IS NOT WITHIN THE JURISDICTION OF OUR OFFICE TO SET
ASIDE A JOB-GRADING APPEAL WHICH WAS PROSECUTED TO A FAVORABLE
CONCLUSION AND WHICH WAS MADE EFFECTIVE IN ACCORDANCE WITH PRESCRIBED
CFWS PROCEDURES SINCE THE AUTHORITY TO CLASSIFY POSITIONS FOR PREVAILING
RATE EMPLOYEES IS VESTED IN ADMINISTRATIVE AGENCIES AND IN THE CIVIL
SERVICE COMMISSION UNDER 5 U.S.C. 5345 (NOW 5346). THEREFORE,
NOTWITHSTANDING THE NAVY ACTION MAY HAVE RESULTED IN MR. NESTLER NOT
RECEIVING THE ADDITIONAL PAY HE BELIEVES HE WAS ENTITILED TO, WE MAY NOT
SET ASIDE THE NAVY APPEAL DECISION.
IN ANY EVENT, THE GENERAL RULE IS THAT IN THE ABSENCE OF A
CONTROLLING STATUTE PROVIDING OTHERWISE, ANY INCREASES OR DECREASES IN
COMPENSATION MAY NOT BE MADE RETROACTIVELY EFFECTIVE AND THAT WHEN A
POSITION IS RECLASSIFIED TO A HIGHER GRADE AS A RESULT OF AN APPEAL TO
THE CIVIL SERVICE COMMISSION, THERE IS NO AUTHORITY TO PAY THE HIGHER
SALARY RATE RETROACTIVELY. SEE 24 COMP. GEN. 676 (1945); 27 ID. 649
(1948); 39 ID. 583 (1960); 40 ID. 212 (1960); AND 52 ID. 631 (1973).
IN VIEW OF THE ABOVE, THE SETTLEMENT ACTION DISALLOWING THIS CLAIM
MUST BE SUSTAINED.
B-181226, JUL 31, 1974
HEADNOTES-UNAVAILABLE
1. WHERE INVITATION REQUIRED DELIVERY WITHIN STATED PERIOD AND
BIDDER INSERTED IN BID THAT IT WOULD NOT BE RESPONSIBLE FOR TIMELY
DELIVERY OF MATERIALS PURCHASED FROM OTHER PARTIES, SUCH MATERIAL
DEVIATION FROM INVITATION REQUIREMENTS IS NOT WAIVABLE AS MINOR
INFORMALITY AND BID WAS PROPERLY REJECTED AS NONRESPONSIVE.
2. FAILURE TO FORMALLY ACKNOWLEDGE AMENDMENT TO INVITATION, WHICH
INCLUDED MATERIAL CHANGES AS WELL AS EXTENSION OF BID OPENING DATE, MAY
BE WAIVED AS MINOR INFORMALITY UNDER ASPR 2-405(IV)(A), INASMUCH AS BID
WAS DATED AND SUBMITTED ON THE EXTENDED OPENING DATE INDICATING THAT
BIDDER WAS AWARE OF AMENDMENT SO AS TO CHARGE BIDDER WITH KNOWLEDGE OF
ALL INFORMATION CONTAINED IN AMENDMENT.
3. FACT THAT ALL OF THE REQUIRED WORK WAS NOT INCLUDED IN CURRENT
PROCUREMENT WILL NOT BE QUESTIONED BY GAO SINCE SATISFACTION OF FUTURE
NEED IS PROCUREMENT RESPONSIBILITY.
THE PRESENT PROCUREMENT IS A SECOND STEP OF A TWO-STEP ADVERTISED
PROCUREMENT (INVITATION FOR BIDS NO. F09650-74-B-0707) FOR THE
FABRICATION AND INSTALLATION OF OVERHEAD BRIDGE CRANE CONVEYING SYSTEMS
AT ROBINS AIR FORCE BASE, GEORGIA. ALTHOUGH AMERICAN MONORAIL, INC.
(AMERICAN) SUBMITTED THE LOW BID, ITS BID WAS REJECTED AS NONRESPONSIVE
FOR HAVING TAKEN EXCEPTION TO THE REQUIRED DELIVERY SCHEDULE OF 180 AND
220 DAYS, DEPENDING ON THE ITEM, AFTER THE DATE OF RECEIPT OF A WRITTEN
NOTICE OF AWARD OR A FULLY EXECUTED AND BINDING CONTRACT, WHICHEVER
OCCURS FIRST. AWARD WAS MADE TO THE SECOND LOW BIDDER, JERVIS B. WEBB
COMPANY (WEBB).
THAT PORTION OF THE AMERICAN BID WHICH WAS DEEMED TO HAVE CAUSED ITS
NONRESPONSIVENESS STATES AS FOLLOWS:
"AMERICAN MONORAIL INC. STATEMENT OF INTERPRETATION
"TIME OF DELIVERY, SECTION H, PAR. H-2:
"AMERICAN MONORAIL INTERPRETS PAR. 1 AS BEING AMENDED BY SEC. K1 THAT
INDICATES THAT THE 180 DAY PERIOD COMMENCES WHEN THE SECRETARY OF THE
AIR FORCE OR HIS DULY AUTHORIZED REPRESENTATIVE HAS APPROVED THE AWARD
IN WRITING.
"AMERICAN MONORAIL WILL MEET THE SPECIFIED 180 DAY DELIVERY
REQUIREMENT OF ALL EQUIPMENT OF ITS MANUFACTURE. DUE TO CURRENT
ECONOMIC CONDITIONS AMERICAN MONORAIL CANNOT BE RESPONSIBLE FOR THE
TIMELY DELIVERY OF OUTSIDE PURCHASED COMMODITIES. EVERY EFFORT WILL BE
MADE TO CAUSE VENDORS TO DELIVER ON SCHEDULE. AMERICAN MONORAIL WILL
ATTEMPT TO FIND COMPATIBLE SUBSTITUTES IF VENDOR DELIVERIES ARE NOT
MET."
SECTION K-1 STATES THAT SHOULD AN AWARD IN EXCESS OF $30,000 BE MADE
UNDER THE INVITATION THE AWARD WILL NOT BECOME BINDING UNTIL APPROVED BY
THE SECRETARY OF THE AIR FORCE OR HIS DULY APPOINTED REPRESENTATIVE.
AMERICAN PROTESTS THIS FINDING OF NONRESPONSIVENESS. IT STATES THAT
BY INSERTING THIS LANGUAGE INTO ITS BID IT WAS MERELY INDICATING ITS
INTERPRETATIONS OF SECTION K-1 OF THE SOLICITATION INSTRUCTIONS AND
CONDITIONS AND PARAGRAPH 7-103.11 OF ASPR (DEALING WITH CONTRACTOR
DEFAULTS), WHICH NOTHING IN THE BID DOCUMENTS PRECLUDED IT FROM DOING.
AMERICAN FURTHER STATES THAT IT DID NOT INTEND TO TAKE EXCEPTION TO THE
DELIVERY REQUIREMENTS AND THAT IT FULLY INTENDED TO MEET THE DELIVERY
REQUIREMENTS UNLESS PREVENTED FROM DOING SO BY AN ACT OF GOD.
AMERICAN ALSO PROTESTS THE AWARD MADE TO WEBB IN VIEW OF THE FACT
THAT DID NOT ACKNOWLEDGE RECEIPT OF MODIFICATION (AMENDMENT) NO. M0-1 TO
THE INVITATION UNTIL AFTER BID OPENING. THE CONTRACTING OFFICER WAIVED
WEBB'S FAILURE TO ACKNOWLEDGE THE AMENDMENT AS A MINOR INFORMALITY UNDER
ASPR 2-405(IV)(A) INASMUCH AS THE BID WAS DATED AND SUBMITTED ON THE
REVISED BID OPENING DATE CONTAINED IN THE MODIFICATION. AMERICAN
PROTESTS USE OF THIS PARAGRAPH IN ASPR AS IT WAS NOWHERE MENTIONED IN
THE INVITATION AND SUGGESTS THE TRUE SOLUTION WOULD BE TO HAVE THE
PROCUREMENT RESOLICITED.
FINALLY, AMERICAN PROTESTS THE FACT THAT ITEM NO. 2 OF THE INVITATION
COVERING THE RELOCATION OF LIGHT FIXTURES AND BUS DUCTS DOES NOT INCLUDE
ALL THE BUS DUCTS WHICH ARE TO BE RELOCATED. IT IS AMERICAN'S
UNDERSTANDING THAT THE ADDITIONAL WORK REQUIRD WILL BE NEGOTIATED WITH
THE SUCCESSFUL BIDDER RATHER THAN BY AMENDING THE SPECIFICATIONS TO
COVER ALL SUCH WORK, THUS RESTRICTING ANY ADDITIONAL WORK TO THE
SUCCESSFUL BIDDER UNDER THE INVITATION.
FOR THE FOLLOWING REASONS WE AGREE WITH THE CONTRACTING OFFICER'S
DETERMINATION AND DENY THE PROTEST.
WHILE THERE WAS NOTHING IN THE BID DOCUMENTS WHICH PRECLUDED A BIDDER
FROM INSERTING IN THE INVITATION ITS OWN INTERPRETATION OF A PORTION OF
THE INVITATION, IF SUCH AN INTERPRETATION IS AT VARIANCE WITH THE
SPECIFIED REQUIREMENTS OF THE INVITATION, THE BID MAY NOT BE CONSIDERED
FOR AWARD.
WE NOTE THAT SECTION C, PARAGRAPH 10, OF THE SOLICITATION
INSTRUCTIONS AND CONDITIONS PROVIDES THAT AWARD WILL BE MADE TO THE
RESPONSIBLE BIDDER WHOSE BID IS MOST ADVANTAGEOUS TO THE GOVERNMENT AND
WHOSE BID CONFORMS TO THE SOLICITATION. TO THE SAME EFFECT, SEE 10
U.S.C. 2305(C). THE INVITATION REQUIRED DELIVERY WITHIN A DEFINITE
DELIVERY SCHEDULE. AMERICAN STATED IN ITS BID THAT IT WOULD NOT BE
RESPONSIBLE FOR THE TIMELY DELIVERY OF MATERIALS PURCHASED FROM OTHER
PARTIES. THIS CONSTITUTED A MATERIAL DEVIATION FROM THE ADVERTISED
REQUIREMENTS AND THE BID PROPERLY WAS REJECTED AS NONRESPONSIVE. THIS
ACTION WAS IN COMPLIANCE WITH ASPR 2-404.2 (D), WHICH REQUIRES THE
REJECTION OF BIDS WHERE THE BIDDER, AS HERE, ATTEMPTS TO IMPOSE
CONDITIONS WHICH MODIFY REQUIREMENTS OF THE INVITATION OF LIMITS HIS
LIABILITY TO THE GOVERNMENT. 50 COMP. GEN. 733, 734, (1971).
REGARDING THE CONTRACTING OFFICER'S ACCEPTANCE OF THE NEXT LOW BID
DESPITE THE FACT THAT THE BIDDER DID NOT ACKNOWLEDGE RECEIPT OF
MODIFICATION NO. M0-1 TO THE INVITATION, WE HAVE HELD THAT SUCH A
FAILURE MAY BE TREATED AS AN INFORMALITY AND WAIVED WHERE THE BID ITSELF
INCLUDES ONE OF THE ESSENTIAL TIEMS APPEARING ONLY IN THE BID ADDENDUM.
SEE B-176462, OCTOBER 20, 1972. IN THIS CASE, WE HELD THAT WHERE A BID
EVIDENCES ACTUAL KNOWLEDGE OF THE EXTENSION OF THE BID OPENING DATE (SEE
ASPR 2-208(A)), THE BIDDER IS CHARGEABLE WITH ALL INFORMATION CONTAINED
IN THE AMENDMENT EXTENDING SUCH DATE. INASMUCH AS THE BID WAS DATED AND
SUBMITTED ON THE EXTENDED BID OPENING DATE, WE BELIEVE THAT THIS IS
SUFFICIENT TO CONSTITUTE AN IMPLIED ACKNOWLEDGMENT OF MODIFICATION NO.
M0-1. SEE B-179592, FEBRUARY 7, 1974, MATTER OF INSCOM ELECTRONICS
CORPORATION, 53 COMP. GEN. ___.
FINALLY, AS REGARDS THE FINAL CONTENTION ADVANCED BY AMERICAN THAT
ALL OF THE BUS DUCT RELOCATION WAS NOT INCLUDED IN THE INVITATION, IT IS
STATED IN THE ADMINISTRATIVE REPORT TO OUR OFFICE THAT AT THE TIME OF
THE PROCUREMENT NO PROVISION FOR RELOCATING ADDITIONAL BUS DUCTS
EXISTED, AND THAT SHOULD ANY ADDITIONAL WORK BECOME NECESSARY IN THE
FUTURE IT COULD BE ACCOMPLISHED, IN ADDITION TO THE POSSIBILITY OF
PROCUREMENT BY PROCUREMENT BY NEGOTIATIONS, BY A SEPARATE CONTRACT
(PRESUMABLY ENTERED INTO AFTER FORMAL ADVERTISEMENT), OR BY AIR FORCE
MAINTENANCE PERSONNEL. SINCE THE DUCT WORK DOES NOT REPRESENT A CURRENT
NEED AS EVIDENCED BY ITS EXCLUSION FROM THE INVITATION AND ITS FUTURE
NEED IS ONE FOR DETERMINATION AND SATISFACTION BY THE AGENCY, WE FIND NO
BASIS TO QUESTION THE ALLEGED ABSENCE OF ADDITIONAL DUCT WORK IN THE
PRESENT INVITATION. THE MODE OF PROVIDING SUCH WORK IN THE FURTURE IS A
MATTER RESERVED TO THE PROCUREMENT ACTIVITY SUBJECT TO APPLICABLE LAW
AND REGULATION.
B-181140 JUL 30, 1974
HEADNOTES-UNAVAILABLE
ALTHOUGH GAO HAS RIGHT OF REVIEW, BID CORRECTION AFTER BID OPENING
BUT PRIOR TO AWARD IS QUESTION OF FACT TO BE MADE BY ADMINISTRATIVELY
DESIGNATED EVALUATOR OF EVIDENCE, AND WHERE THERE IS CLEAR AND
CONVINCING EVIDENCE THAT ERROR OCCURRED, HOW IT OCCURRED, AND INTENDED
BID PRICE, A DECISION TO ALLOW CORRECTION WILL NOT BE DISTURBED BY GAO.
ON JANUARY 11, 1974 INVITATION FOR BIDS (IFB) DAHC30-74-B-0054 WAS
ISSUED BY THE MDW PROCUREMENT DIVISION (MDW), CAMERON STATION,
ALEXANDRIA, VIRGINIA, FOR THE RENOVATION OF CAMERON STATION OFFICERS'
OPEN MESS. AT 10:00 A.M., ON FEBRUARY 15, 1974, THE FOLLOWING BIDS WERE
OPENED:
SUBURBAN CONTRACTORS $113,343
RESCOM INC. 94,500
HUGHES & SMITH 92,845
STERLING EQUIP. NO BID
MECHANEER INC. 137,165
DOUGLAS K. TRACY
S & J ASSOC. 162,205
THE GOVERNMENT ESTIMATE FOR THE WORD WAS $90,342. SUBSEQUENT TO BID
OPENING, DOUGLAS K TRACY (TRACY) SUBMITTED A REQUEST, BY LETTER DATED
FEBRUARY 15, 1974, TO THE CONTRACTING OFFICER TO MODIFY ITS BID DUE TO
MATHEMATICAL ERROR. IN SUPPORT OF ITS REQUEST, TRACY SUBMITTED A COPY
OF ITS ORIGINAL BID SUMMARY SHEETS. TRACY MAINTAINED THAT THE TOTAL SUM
OF THE NUMBERS CONTAINED IN THE LOWER RIGHT-HAND CORNER OF ITS WORKSHEET
IS $73,858, RATHER THAN THE $63,858 SHOWN, AND THAT THE ADDITION OF 10
PERCENT PROFIT AND 2 PERCENT INSURANCE BOND TO THE CORRECTED TOTAL
RESULTS IN A BID PRICE OF $82,867.
PERSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR)
2-406.3(E)(3), THE MATTER WAS REFERRED TO HIGHER AUTHORITY FOR A
DETERMINATION AS TO WHETHER TRACY SHOULD BE PERMITTED TO CORRECT ITS BID
PURSUANT TO ASPR 2-406.3(A)(3). THE ASSISTANT SECRETARY OF THE ARMY
(I&L), HEADQUARTERS, FOUND THAT THE EVIDENCE SUBMITTED CLEARLY AND
CONVINCINGLY ESTABLISHED BOTH THE EXISTENCE OF A MISTAKE AND THE BID
ACTUALLY INTENDED. FURTHERMORE, HE FOUND THAT THE BID, AS UNCORRECTED
AND AS CORRECTED, WAS THE LOWEST RECEIVED. ACCORDINGLY, HE PERMITTED
CORECTION OF TRACY'S BID.
ON MARCH 13, 1974, AWARD WAS MADE TO TRACY IN THE CORRECTED AMOUNT OF
$82,867.
SUBSEQUENT TO THE DENIAL OF ITS PROTEST BY THE PROCURING ACTIVITY,
HUGHES & SMITH, INC. (H&S), PROTESTED TO OUR OFFICE THE AWARD OF THE
ABOVE-REFERENCED CONTRACT TO TRACY. H&S QUESTIONS WHETHER TRACY HAS
PROVED ERROR BY MEANS OF CLEAR AND CONVINCING EVIDENCE AND CONTENDS THAT
IT HAS NOT BEEN FURNISHED WITH SUCH EVIDENCE AS REQUESTED FROM MDW. IN
ADDITION, H&S QUESTIONS HOW TRACY COULD HAVE MADE SUCH A GROSS ERROR AND
EXPRESSES DOUBT AS TO THE AUTHENTICITY AND CREDIBILITY OF THE WORKSHEET
SUBMITTED. FURTHERMORE, H&S CONTENDS THAT TRACY REQUESTED PERMISSION TO
WITHDRAW OR CORRECT ITS BID RATHER THAN TO MERELY CORRECT IT, AS STATED
BY MDW.
ASPR 2-406.3(A)(3) PROVIDES AS FOLLOWS:
"(3) WHERE THE BIDDER REQUESTS PERMISSION TO CORRECT A MISTAKE IN HIS
BID AND CLEAR AND CONVINCING EVIDENCE ESTABLISHES BOTH THE EXISTENCE OF
A MISTAKE AND THE BID ACTUALLY INTENDED, A DETERMINATION PERMITTING THE
BIDDER TO CORRECT THE MISTAKE MAY BE MADE; PROVIDED THAT, IN THE EVENT
SUCH CORRECTION WOULD RESULT IN DISPLACING ONE OR MORE LOWER BIDS, THE
DETERMINATION SHALL NOT BE MADE UNLESS THE EXISTENCE OF THE MISTAKE AND
THE BID ACTUALLY INTENDED ARE ASCERTAINABLE SUBSTANTIALLY FROM THE
INVITATION AND THE BID ITSELF. IF THE EVIDENCE IS CLEAR AND CONVINCING
ONLY AS TO THE MISTAKE, BUT NOT AS TO THE INTENDED BID, A DETERMINATION
PERMITTING THE BIDDER TO WITHDRAW HIS BID MAY BE MADE."
ALTHOUGH THE GENERAL ACCOUNTING OFFICE (GAO) HAS RETAINED THE RIGHT
OF REVIEW, THE AUTHORITY TO CORRECT MISTAKES ALLEGED AFTER BID OPENING
BUT PRIOR TO AWARD IS VESTED IN THE PROCURING ACTIVITY AND THE WEIGHT TO
BE GIVEN EVIDENCE IN SUPPORT OF AN ALLEGED MISTAKE IS A QUESTION OF FACT
TO BE CONSIDERED BY THE ADMINISTRATIVELY DESIGNATED EVALUATOR OF
EVIDENCE, WHOSE DECISION WILL NOT BE DISTURBED BY OUR OFFICE UNLESS
THERE IS NO REASONABLE BASIS FOR THE DECISION. 53 COMP. GEN. 232
(1973); 51 COMP. GEN. 1 (1971).
THIS PROCEDURE FOR THE CORRECTION OF A BID AFTER BID OPENING IS
CONSONANT WITH THE STATUTES REQUIRING ADVERTISING FOR BIDS AND THE AWARD
OF CONTRACTS TO THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER, SINCE THESE
STATUTES ARE FOR THE BENEFIT OF THE UNITED STATES IN SECURING BOTH FREE
COMPETITION AND THE LOWEST COMPETITIVE PRICES IN ITS PROCUREMENT
ACTIVITIES. SEE B-148117, MARCH 22, 1962. THEREFORE, WHERE THESE
PROCEDURES ARE STRICTLY FOLLOWED SO THAT THE INTEGRITY OF THE
COMPETITIVE BIDDING SYSTEM IS NOT PREJUDICED, THE UNITED STATES SHOULD
HAVE THE COST BENEFIT OF THE BID AS CORRECTED, PROVIDED THAT IT IS STILL
LOWER THAN ANY OTHER BID SUBMITTED. THIS PROCEDURE DOES NOT PREJUDICE
THE OTHER BIDDERS, SINCE CORRECTION WILL ONLY BE MADE UPON A CONVINCING
SHOWING OF WHAT THE BID WOULD HAVE BEEN AT BID OPENING BUT FOR THE
MISTAKE.
THE PRINCIPLES SUPPORTING THIS PROCEDURE HAVE BEEN SANCTIONED BY OUR
OFFICE AND THE COURT OF CLAIMS. 51 COMP. GEN. 1 (1971); CHRIS BERG,
INC. V. UNITED STATES, 192 CT. CL. 176, 426 F. 2D 314 (1970).
WE HAVE REVIEWED THE EVIDENCE RELIED UPON IN PERMITTING CORRECTION
AND CANNOT CONCLUDE THAT THERE WAS NO REASONABLE BASIS FOR THE
ADMINISTRATIVE DETERMINATION THAT AN ERROR WAS MADE AND THAT THE
WORKSHEET SUBMITTED WAS GENUINE AND CONSTITUTED CLEAR AND CONVINCING
EVIDENCE OF THE ERROR AND THE INTENDED BID.
WITH REGARD TO H&S' FINAL CONTENTION, IT SHOULD BE NOTED THAT
ALTHOUGH TRACY'S LETTER OF FEBRUARY 15 STATED "WE MUST WITHDRAW AND/OR
MODIFY," TRACY REQUESTED TO MODIFY RATHER THAN WITHDRAW ITS BID. TRACY
WAS INSTRUCTED BY THE PROCURING ACTIVITY TO DELETE THE WORD "WITHDRAW"
IN ITS FEBRUARY 15 LETTER AND INITIAL THIS DELETION, WHICH TRACY DID ON
FEBRUARY 19. CONSEQUENTLY, MDW'S STATEMENT THAT TRACY REQUESTED
PERMISSION TO CORRECT, RATHER THAN TO WITHDRAW OR CORRECT ITS BID IS
ACCURATE. MDW'S ACTION IN THIS REGARD WAS IN KEEPING WITH THE MANDATE
OF ASPR 2-406.3(A)(2) WHICH PERMITS A DETERMINATION FOR CORRECTION ONLY
WHERE EVIDENCE OF ERROR IS CLEAR AND CONVINCING BOTH AS TO THE EXISTENCE
OF THE MISTAKE AND AS TO THE BID ACTUALLY INTENDED.
FOR THE REASONS STATED ABOVE, THE PROTEST OF S&W IS DENIED.
B-180268, JUL 29, 1974
HEADNOTES-UNAVAILABLE