DECISION DENYING PROTEST AGAINST CANCELLATION OF AN IFB ISSUED BY THE
NAVY, AVIATION SUPPLY OFFICE, PHILA., PA., FOR VARYING QUANTITIES OF TWO
TYPES OF ACCELEROMETERS.
WHERE THE SOLICITATION WHICH WAS RESTRICTED TO SMALL BUSINESSES
RESULTED IN ONLY TWO BIDS AND THE LOW BID WAS FOUND NONRESPONSIVE, IT
WAS PROPER TO CANCEL THE INVITATION AFTER AN ADMINISTRATIVE
DETERMINATION THAT COMPETITION HAD BEEN RESTRICTED TO THE EXTENT THAT
NEITHER ADEQUATE COMPETITION NOR A FAIR AND REASONABLE PRICE HAD BEEN
RETAINED. THE COMP. GEN. HAS CONSISTENTLY ACKNOWLEDGED THE STATUTORY
RIGHT UNDER 10 U.S.C. 2305(C) OF AN AGENCY TO REJECT ALL BIDS WHEN SUCH
ACTION IS DETERMINED TO BE IN THE PUBLIC INTEREST AND SINCE PROTESTANT'S
BID WAS 32.6 PERCENT HIGHER THAN THE REJECTED BID, THE COMP. GEN. VIEWS
THE CANCELLATION OF THE IFB AS A REASONABLE EXERCISE OF THE
ADMINISTRATIVE DISCRETION VESTED IN THE CONTRACTING OFFICER.
TO CAVITRON CORPORATION:
REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 20, 1971, AND SUBSEQUENT
LETTERS, PROTESTING THE CANCELLATION OF INVITATION FOR BIDS (IFB)
N00383-71-B-0721, ISSUED BY THE DEPARTMENT OF THE NAVY, AVIATION SUPPLY
OFFICE, PHILADELPHIA, PENNSYLVANIA.
THE REFERENCED IFB WAS ISSUED ON MARCH 11, 1971, AS A 100 PERCENT SET
ASIDE FOR SMALL BUSINESS CONCERNS. BIDS WERE REQUESTED ON VARYING
QUANTITIES OF TWO TYPES OF ACCELEROMETERS WHICH ARE DESIGNED TO INDICATE
AN AIRCRAFT'S ACCELERATION AND GRAVITATIONAL FORCE IN MANEUVERS AND
ROUGH AIR.
INVITATIONS WERE ISSUED TO TWENTY-FIVE POTENTIAL SUPPLIERS IN
ANTICIPATION THAT BIDS WOULD BE RECEIVED FROM A SUFFICIENT NUMBER OF
SMALL BUSINESS CONCERNS TO ASSURE ADEQUATE COMPETITION AND AN AWARD AT
REASONABLE PRICES. TWO BIDS WERE RECEIVED AND OPENED ON MARCH 25, 1971,
REVEALING THE FOLLOWING PRICES:
MILHARD ENGINEERING CO., INC.
WITH FIRST ARTICLE TESTS WAIVED $64,008
BURTON DIVISION OF CAVITRON CORPORATION
WITH FIRST ARTICLE TESTS REQUIRED $91,660
WITH FIRST ARTICLE TESTS WAIVED $84,900
YOUR LETTER TO THE CONTRACTING OFFICER OF MARCH 26, 1971, PROTESTED
THE PROSPECTIVE AWARD OF A CONTRACT TO THE APPARENT LOW BIDDER, MILHARD
ENGINEERING COMPANY, INC. (MILHARD), ALLEGING THAT MILHARD WAS NOT A
SMALL BUSINESS CONCERN. UPON RECEIPT OF YOUR TIMELY PROTEST, THE
CONTRACTING OFFICER FORWARDED THE MATTER TO THE SMALL BUSINESS
ADMINISTRATION (SBA) REGIONAL OFFICE, LOS ANGELES, CALIFORNIA, FOR A
SIZE DETERMINATION PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION
(ASPR) 1-703(B)-(1)(A). IT WAS CONCLUDED BY THE SBA REGIONAL OFFICE
THAT, BY VIRTUE OF MILHARD'S AFFILIATION WITH EDCLIFF INSTRUMENTS, WHICH
WAS AFFILIATED WITH SYSTRON-DONNER CORPORATION, A LARGE BUSINESS
CONCERN, MILHARD WAS A LARGE BUSINESS CONCERN WITHIN THE SBA RULES AND
REGULATIONS. THIS SBA SIZE DETERMINATION WAS TRANSMITTED TO MILHARD AND
THE CONTRACTING OFFICER BY LETTERS DATED APRIL 20, 1971. CONSEQUENTLY,
MILHARD'S BID WAS REJECTED AS NONRESPONSIVE.
SINCE YOUR BID WAS 32.6 PERCENT HIGHER THAN MILHARD'S IT WAS
ADMINISTRATIVELY DETERMINED THAT THE DECISION TO RESTRICT THE
SOLICITATION TO SMALL BUSINESS CONCERNS HAD LIMITED COMPETITION TO THE
EXTENT THAT NEITHER ADEQUATE COMPETITION NOR A FAIR AND REASONABLE PRICE
WAS OBTAINED BY THE SOLICITATION. ACCORDINGLY, THE CONTRACTING OFFICER
WITHDREW THE SET ASIDE PURSUANT TO ASPR 1-706.3(A) AND CANCELLED THE IFB
PURSUANT TO ASPR 2-404.1(B)(VIII). THE BIDDERS WERE ADVISED OF THE
CANCELLATION BY LETTERS DATED MAY 14, 1971, AND WERE INFORMED THAT THE
PROCUREMENT WAS TO BE READVERTISED IN THE NEAR FUTURE, AND THAT THEY
WOULD BE SOLICITED AT THAT TIME.
THE PROCUREMENT WAS READVERTISED UNDER UNRESTRICTED IFB
N00383-71-B-0969, ISSUED MAY 25, 1971. UPON OPENING OF BIDS ON JUNE 8,
1971, THE FOLLOWING PRICES WERE RECORDED:
MILHARD
WITH FIRST ARTICLE TESTS WAIVED $62,342.20
BURTON
WITH FIRST ARTICLE TESTS REQUIRED $91,360.00
WITH FIRST ARTICLE TESTS WAIVED $84,600.00
BENDIX CORP., INST. & LIFE SUPPORT DIV.
WITH FIRST ARTICLE TESTS REQUIRED $140,242.38
WE ARE INFORMED THAT THE QUANTITIES REQUESTED UNDER THE LATTER IFB
WERE IDENTICAL TO THOSE OF THE FORMER INVITATION. IT IS NOTED THAT YOUR
PRICE AND MILHARD'S PRICE ARE LESS THAN THOSE QUOTED UNDER THE FIRST
IFB, AND THE PRICE DIFFERENTIAL BETWEEN THE BIDS IS EVEN GREATER THAN
THAT OF THE PREVIOUS BIDS.
THE ESSENCE OF YOUR PROTEST IS THAT THERE WERE NO COMPELLING REASONS
TO CANCEL THE ORIGINAL IFB AND THAT THE ONLY JUSTIFICATION PROVIDED BY
THE PROCURING ACTIVITY WAS THE CITATION OF ASPR 2-404.1(B)(VIII), WHICH
PERMITS CANCELLATION WHEN DETERMINED TO BE CLEARLY IN THE BEST INTERESTS
OF THE GOVERNMENT FOR REASONS OTHER THAN THOSE LISTED IN ASPR
2-404.1(B)(I-VII). YOU CONTEND THAT THE FAILURE TO ENUMERATE THE
SPECIFIC REASONS VIOLATES THE PROVISION IN ASPR 2-404.1(B) REQUIRING
THAT DETERMINATIONS TO CANCEL IFBS STATE THE REASONS THEREFOR. YOU
FURTHER ALLEGE THAT THE CONTRACTING OFFICER HAS NOT SHOWN THAT YOUR
ORIGINAL BID PRICE WAS UNREASONABLE, ONLY THAT IT WAS 32.6 PERCENT
HIGHER THAN MILHARD'S.
OUR OFFICE HAS CONSISTENTLY ACKNOWLEDGED THE STATUTORY RIGHT UNDER 10
U.S.C. 2305(C) OF AN AGENCY TO REJECT ALL BIDS WHEN SUCH ACTION IS
DETERMINED TO BE IN THE PUBLIC INTEREST. THE RIGHT TO REJECT ALL BIDS
IS ALSO EXPRESSLY RESERVED TO THE GOVERNMENT IN PARAGRAPH 10(B) OF THE
SOLICITATION INSTRUCTIONS AND CONDITIONS. WE HAVE ALSO RECOGNIZED THE
BROAD AUTHORITY VESTED IN CONTRACTING OFFICERS TO REJECT ANY OR ALL BIDS
AND READVERTISE, AND WE WILL NOT QUESTION SUCH AN ADMINISTRATIVE
DECISION WHEN THERE IS A COGENT REASON FOR THE ACTION TAKEN. SEE 39
COMP. GEN. 396 (1959). UNREASONABLE PRICES ARE SHOWN IN ASPR
2-404.1(B)(VI) AND 2-404.2(E) AS CONSTITUTING AN ACCEPTABLE REASON FOR
REJECTING BIDS.
WHILE YOU CONTEND THAT NO COMPELLING REASON EXISTED FOR CANCELLATION
IN THE INSTANT CASE, THE RECORD SHOWS THAT THE ADVERTISEMENT OF THIS
PROCUREMENT AS A 100 PERCENT SMALL BUSINESS SET ASIDE PRODUCED ONLY ONE
BID FROM A SMALL BUSINESS CONCERN WHOSE PRICE WAS 32.6 PERCENT HIGHER
THAN THAT OF THE ONLY OTHER BIDDER. WE HAVE HELD THAT THE BID OF A
NONRESPONSIVE BIDDER IS RELEVANT TO THE DETERMINATION OF WHAT IS A
REASONABLE PRICE, B-161608, AUGUST 23, 1967. SEE ALSO B-154449, OCTOBER
30, 1964, AND B-168972, APRIL 14, 1970. IN 36 COMP. GEN. 364 (1956) WE
STATED:
"WE CANNOT, HOWEVER, CONSIDER THE MATTER OF COMPETITIVE BIDDING FOR
GOVERNMENT CONTRACTS SOLELY AS A GAME, IN WHICH THE CONTRACT MUST
AUTOMATICALLY GO TO THE LOWEST BIDDER WITHOUT REGARD TO THE
REASONABLENESS OF HIS PRICE OR TO OTHER ATTEMPTED BIDS WHICH CANNOT FOR
TECHNICAL REASONS BE ACCEPTED. WHEN IN THE LIGHT OF ALL THE FACTS,
INCLUDING THOSE DISCLOSED BY THE BIDDING, IT IS ADMINISTRATIVELY
DETERMINED THAT THE LOWEST ACCEPTABLE BID IS IN EXCESS OF THE AMOUNT FOR
WHICH THE GOVERNMENT SHOULD BE ABLE TO OBTAIN THE SUPPLIES OR SERVICES
SOUGHT, WE BELIEVE THAT THE REJECTION OF ALL BIDS AND READVERTISING OF
THE CONTRACT IS A PROPER EXERCISE OF THE ADMINISTRATIVE DISCRETION, IN
CONFORMITY WITH THE DUTY OF THE ADMINISTRATIVE OFFICIALS TO ACT IN THE
BEST INTEREST OF THE GOVERNMENT."
WE HAVE ALSO CONCURRED WITH THE WITHDRAWAL OF A SMALL BUSINESS SET
ASIDE WHERE THE LOW BID RECEIVED WAS BY A LARGE BUSINESS CONCERN AND THE
CIRCUMSTANCES INDICATED THAT SUBSTANTIAL SAVINGS COULD BE REALIZED FROM
READVERTISEMENT ON AN UNRESTRICTED BASIS. IN THAT CASE THE SECOND-LOW
BID WAS APPROXIMATELY ONE FIFTH MORE THAN THE PRICE OF THE BIG BUSINESS
CONCERN, AND WE APPROVED THE UNRESTRICTED RESOLICITATION OVER THE
OBJECTION OF THE SECOND-LOW BIDDER WHO ALLEGED, AS YOU HAVE, THAT ITS
BID PRICE WAS REASONABLE AND COMPARED FAVORABLY WITH PRICES OF SIMILAR
CONTRACTS.
REGARDING YOUR CONTENTION THAT THE OMISSION IN THE CONTRACTING
OFFICER'S LETTERS OF MAY 14, 1971, OF THE SPECIFIC REASONS WHY
CANCELLATION WAS CONSIDERED TO BE IN THE BEST INTEREST OF THE
GOVERNMENT, CONSTITUTED A VIOLATION OF ASPR 2-404.1(B), IT IS NOTED THAT
THE REGULATION REQUIRES IN SUCH RESPECT ONLY THAT CONTRACTING OFFICERS'
WRITTEN DETERMINATIONS STATE THE REASONS FOR CANCELLATION. THE
REQUIREMENT THAT CONTRACTING OFFICERS NOTIFY BIDDERS OF THE REASON FOR
REJECTION OF ALL BIDS IS CONTAINED IN ASPR 2-404.3, HOWEVER, ANY
NONOBSERVANCE OF SUCH REQUIREMENT FOR STATING THE REASON FOR REJECTION
IS CONSIDERED TO BE IN THE NATURE OF AN AFTER-THE-FACT PROCEDURAL
DEFICIENCY WHICH DOES NOT AFFECT THE PROPRIETY OF THE CONTRACTING
OFFICER'S DETERMINATION OR THE ACTION TAKEN. SEE B-168972, APRIL 14,
1970.
ACCORDINGLY, WE BELIEVE THAT THE CANCELLATION OF THE INVITATION AND
RESOLICITATION CONSTITUTED A REASONABLE EXERCISE OF ADMINISTRATIVE
DISCRETION VESTED IN THE CONTRACTING OFFICER, AND YOUR PROTEST MUST
THEREFORE BE DENIED.
B-164836(1), AUG 17, 1971
BID PROTEST - BIDDER RESPONSIBILITY - UNPROFITABLE BID
DECISION DENYING PROTEST AGAINST AWARD OF A CONTRACT TO MERCHANTS
CREDIT BUREAU UNDER AN IFB ISSUED BY THE FEDERAL HOUSING ADMINISTRATION
FOR FACTUAL DATA (CREDIT) REPORTS COVERING INDIVIDUALS IN THE MIAMI,
FLORIDA AREA.
WHETHER THE SUCCESSFUL BIDDER HOLDS A VALID BUSINESS LICENSE AND CAN
PROVIDE ANTECEDENT CREDIT REPORTS, ARE MATTERS OF RESPONSIBILITY WITHIN
THE PROVINCE OF THE CONTRACTING AGENCY. FURTHER, THE COMP. GEN. HAS
HELD THAT AN AWARD MAY NOT BE PRECLUDED MERELY BECAUSE THE LOW BIDDER
HAS SUBMITTED AN UNPROFITABLE PRICE.
TO CREDIT SERVICE BUREAU:
THIS IS IN REPLY TO YOUR LETTER DATED JUNE 11, 1971, AND SUBSEQUENT
CORRESPONDENCE, PROTESTING THE PROPOSED AWARD TO ANOTHER BIDDER OF A
CONTRACT FOR FACTUAL DATA (CREDIT) REPORTS COVERING INDIVIDUALS WITHIN
THE METROPOLITAN AREA OF MIAMI, FLORIDA, UNDER FEDERAL HOUSING
ADMINISTRATION (FHA) INVITATION FOR BIDS NO. HPMC-FHA-002-72.
THE INVITATION PROVIDES FOR SUBMISSION OF BIDS ON A UNIT PRICE FOR
EACH BASIC FACTUAL DATA REPORT FURNISHED AS REQUESTED DURING THE PERIOD
JULY 1, 1971 - JUNE 30, 1972, AND SPECIFIES THAT IN ADDITION TO THE BID
PRICE FOR EACH BASIC REPORT, THE CONTRACTOR WILL BE PAID $4 FOR EACH
ANTECEDENT REPORT, $2.25 FOR SUPPLEMENTAL REPORTS COVERING TRADE
REFERENCES, AND $1 FOR SUPPLEMENTAL REPORTS COVERING EMPLOYMENT.
IN RESPONSE TO THE INVITATION, FOUR BIDS WERE RECEIVED AS FOLLOWS:
CREDIT SERVICE INCORPORATED $4.40 PER UNIT
CREDIT BUREAU INCORPORATED OF GEORGIA $5.50 PER UNIT
CREDIT BUREAU REPORTS INCORPORATED $5.50 PER UNIT
MERCHANTS CREDIT BUREAU $1.00 PER YEAR, WITHOU
REGARD TO UNITS
YOU PROTEST THE PROPOSED AWARD TO MERCHANTS CREDIT BUREAU ON SEVERAL
BASES. FIRST, YOU STATE THE BIDDER HAS BEEN OPERATING FOR A NUMBER OF
YEARS WITHOUT AN OCCUPATIONAL LICENSE, WHICH IS IN VIOLATION OF
FLORIDA'S CIVIL AND CRIMINAL LAWS. YOU ALSO CONTEND THAT THE BIDDER IS
UNABLE TO PROVIDE BOTH ANTECEDENT REPORTS FROM OTHER CREDIT BUREAUS
THROUGHOUT THE UNITED STATES AND CREDIT INFORMATION FROM MOST LEADING
LOCAL STORES. YOU FURTHER STATE THAT THE PROPOSED CONTRACTOR OPERATES
BOTH CREDIT REPORTING AND BAD DEBT COLLECTION SERVICES.
IT APPEARS FROM THE RECORD THAT THE LICENSE FOR MERCHANTS CREDIT
BUREAU IS IN THE NAME OF MIAMI SERVICE BUREAU, INC. THE LATTER COMPANY
WAS IDENTIFIED IN THE BID OF MERCHANTS CREDIT BUREAU AS THE BIDDER'S
PARENT COMPANY. AFTER INQUIRING WITH THE MIAMI, DADE COUNTY AND FLORIDA
STATE LICENSING AUTHORITIES, FHA HAS REPORTED THAT IT WAS ADVISED THAT
ONLY ONE LICENSE IS ISSUED PER BUSINESS, AND AS LONG AS THE PARENT
COMPANY HOLDS A VALID LICENSE AN ADDITIONAL LICENSE IS NOT REQUIRED FOR
MERCHANTS CREDIT BUREAU.
YOU ALSO QUESTION WHETHER THE BIDDER IS ABLE TO PROVIDE ANTECEDENT
CREDIT REPORTS AND CREDIT INFORMATION FROM MOST LEADING LOCAL STORES.
MERCHANTS CREDIT BUREAU HAS CERTIFIED THAT IT HAS SIGNED SERVICE
AGREEMENTS WITH ALL REQUIRING ASSOCIATED CREDIT BUREAUS OF AMERICA
(ACBA), AND THAT IT HAS ARRANGEMENTS WITH 2,000 COOPERATING CREDIT
REPORTING AGENCIES TO PROVIDE ANTECEDENT INFORMATION. IN ADDITION, FHA
STATES THAT THE LOW BIDDER'S ABILITY TO PERFORM UNDER THE CONTRACT HAS
BEEN DEMONSTRATED AS A FORMER CONTRACTOR AND THAT DURING THE YEARS IT
HAS NOT BEEN A CONTRACT SOURCE, REPORTS SUBMITTED BY MERCHANTS CREDIT
BUREAU HAVE BEEN TESTED FREQUENTLY AND IN SIGNIFICANT NUMBERS TO ASSURE
THAT THE REPORTS WERE IN ACCORDANCE WITH FHA SPECIFICATIONS. FHA STATES
THAT THE FIRM'S REPORTS HAVE PROVEN TO BE CONSISTENTLY SATISFACTORY AND
RELIABLE.
WE HAVE NOTED YOUR STATEMENT THAT THE PROPOSED CONTRACTOR OPERATES
BOTH CREDIT REPORTING AND BAD DEBT COLLECTING SERVICES WHICH, YOU
CONTEND, PROVIDES IT WITH AN OPPORTUNITY TO SECURE PAYMENTS, FROM
APPLICANTS FOR FHA INSURED LOANS, ON BILLS WHICH MIGHT BE EITHER JUSTLY
DUE OR NOT OWING IN ORDER TO RECEIVE A CLEAR RECORD ON THE FHA MORTGAGE
REPORT. IN THIS CONNECTION, FHA ADVISES THAT IT IS NOT AN UNCOMMON
PRACTICE AMONG CREDIT REPORTING BUREAUS TO PERFORM BOTH CREDIT REPORTING
AND DEBT COLLECTION SERVICES. THE TERMS OF THE CONTRACT (PARAGRAPH 9(B)
OF THE SPECIFICATIONS), HOWEVER, PRECLUDE THE CONTRACTING PARTIES FROM
USING FHA APPLICATIONS FOR MORTGAGE INSURANCE AS A MEANS OF EFFECTING
COLLECTION OF DELINQUENT ACCOUNTS. ANY CONTRACTOR FOLLOWING THIS
PRACTICE WOULD BE SUBJECT TO CONTRACT TERMINATION.
IN OUR OPINION, ALL OF THE ABOVE-CONSIDERED OBJECTIONS RAISED BY YOUR
PROTEST RELATE TO THE QUESTION OF WHETHER THE LOW BIDDER IS RESPONSIBLE.
THE RECORD BEFORE US SHOWS THAT FHA HAS CONSIDERED THE QUESTION OF THE
RESPONSIBILITY OF MERCHANTS CREDIT BUREAU AND HAS CONCLUDED THAT THE
FIRM IS A RESPONSIBLE BIDDER, NOTWITHSTANDING YOUR CONTENTIONS. IN
CONSIDERING SUCH PROTESTS WE HAVE CONSISTENTLY HELD THAT DETERMINATIONS
OF RESPONSIBILITY ARE PRIMARILY A FUNCTION OF THE AGENCY CONCERNED AND,
IN THE ABSENCE OF CLEAR EVIDENCE OF BAD FAITH OR LACK OF A REASONABLE
BASIS THEREFOR, THERE IS NO LEGAL BASIS FOR OBJECTION BY THIS OFFICE.
39 COMP. GEN. 705 (1960). IN THE PRESENT CASE WE DO NOT BELIEVE WE
WOULD BE JUSTIFIED IN QUESTIONING THE ADMINISTRATIVE DETERMINATION OF
RESPONSIBILITY.
FINALLY, WE HAVE NOTED YOUR APPARENT DISBELIEF THAT THE GOVERNMENT
WOULD SERIOUSLY CONSIDER THIS LOW BID, HOWEVER, WE KNOW OF NO LEGAL
PRINCIPLE WHICH WOULD PRECLUDE THE ACCEPTANCE OF SUCH AN OFFER UNDER THE
CIRCUMSTANCES OF THIS CASE. WE HAVE HELD THAT AN AWARD MAY NOT BE
PRECLUDED MERELY BECAUSE THE LOW BIDDER SUBMITTED AN UNPROFITABLE PRICE.
SEE B-169465, JUNE 19, 1970, AND CASES CITED THEREIN.
ACCORDINGLY, WE HAVE NO OBJECTION TO THE PROPOSED AWARD TO THE LOW
BIDDER, AND YOUR PROTEST IS THEREFORE DENIED.
B-164836(2), AUG 17, 1971
BID PROTEST - BID RESPONSIVENESS
ADVISING THAT THE COMP. GEN. HAS DENIED THE PROTEST BY CREDIT SERVICE
BUREAU AGAINST THE AWARD OF A CONTRACT TO MERCHANTS CREDIT BUREAU AND
THAT SUCCESSFUL BIDDER'S FAILURE TO BID ON A UNIT BASIS AS REQUIRED BY
THE IFB MAY BE WAIVED UNDER FPR 1-2.405 WHERE THE TOTAL BID PRICE OF $1
PER YEAR IS LESS THAN THE LOWEST BID PRICE RECEIVED.
TO MR. SECRETARY:
REFERENCE IS MADE TO LETTERS DATED JUNE 15, JULY 6 AND 26, 1971, FROM
THE CONTRACTING OFFICER AND THE DIRECTOR, MANAGEMENT AND OPERATIONS
SYSTEMS DIVISION, FEDERAL HOUSING ADMINISTRATION, REPORTING ON THE
PROTEST BY CREDIT SERVICE BUREAU AGAINST THE PROPOSED AWARD OF A
CONTRACT TO ANOTHER FIRM UNDER IFB NO. HPMC-FHA-002-72.
ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO CREDIT SERVICE BUREAU
DENYING THE PROTEST.
IN ADDITION TO REPORTING ON THE PROTEST, THE ABOVE-REFERENCED LETTER
OF JUNE 15 REQUESTS A DECISION AS TO THE ACCEPTABILITY OF THE BID OF
MERCHANTS CREDIT BUREAU AT THE $1 PER YEAR PRICE FOR THE ORIGINAL
REPORTS. THE RECORD BEFORE US CLEARLY SHOWS THAT THE LOW BID IS NOT THE
PRODUCT OF A MISTAKE. FURTHER, SINCE MERCHANTS' TOTAL BID PRICE OF $1
IS LESS THAN THE LOWEST UNIT PRICE RECEIVED, MERCHANTS' FAILURE TO BID
ON A UNIT BASIS AS REQUIRED BY THE INVITATION IS, IN OUR VIEW, AN
IMMATERIAL VARIATION HAVING MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON
PRICE, AND CAN THEREFORE BE WAIVED PURSUANT TO FEDERAL PROCUREMENT
REGULATIONS 1-2.405. IN VIEW THEREOF, WE KNOW OF NO LEGAL PRINCIPLE
REQUIRING THE REJECTION OF THE LOW BID IN THIS CASE.
THE FILE TRANSMITTED WITH THE REPORT OF JUNE 15 IS RETURNED.
B-172128, AUG 17, 1971
CIVILIAN EMPLOYEE - SEPARATION FROM DUTY - ADMINISTRATIVE DETERMINATION
DECISION AFFIRMING PREVIOUS DENIAL OF A CLAIM ON BEHALF OF EMMETT G.
ROBINSON FOR BACK PAY FOR A PERIOD OF SEPARATION FROM GOVERNMENT SERVICE
DUE TO MEDICAL REASONS.
WHEN OPINIONS CONFLICT AS TO THE ABILITY, FITNESS AND AVAILABILITY OF
AN EMPLOYEE FOR DUTY, GAO WILL NOT SUBSTITUTE ITS JUDGEMENT FOR THAT OF
THE ADMINISTRATIVE AGENCY.
TO BENJAMIN J. BIRDSALL, JR.:
WITH REFERENCE TO YOUR LETTER OF MAY 19, 1971, CONCERNING ENTITLEMENT
OF MR. EMMETT G. ROBINSON TO BACK PAY, WE WISH TO ADVISE YOU THAT WE
HAVE AGAIN REVIEWED THE FILE ON THIS MATTER.
AS YOUR LETTER INDICATES, THE ISSUE TO BE DETERMINED IS THAT OF MR.
ROBINSON'S PHYSICAL ABILITY TO PERFORM HIS WORK DURING THE PERIOD HE WAS
SEPARATED FROM THE SERVICE, OCTOBER 4, 1968, THROUGH NOVEMBER 14, 1969.
YOUR LETTER ENCLOSES, AS EVIDENCE THAT HE WAS ABLE TO WORK, A COPY OF A
LETTER FROM MR. ROBINSON'S SUPERVISOR, THE POSTMASTER AT METAIRIE,
LOUISIANA, DATED NOVEMBER 20, 1969. IN THAT LETTER TO MR. ROBINSON, THE
POSTMASTER REFERS TO A LETTER FROM YOU CONCERNING HIS CONDITION AND
STATES THAT " *** WE HAVE NEVER HAD ANY MEDICAL EVIDENCE SUBMITTED BY
YOU *** THAT WOULD INDICATE YOU ARE NOT ABLE TO WORK." WE NOTE THAT THE
LETTER WAS WRITTEN AFTER MR. ROBINSON'S RESTORATION TO DUTY AND THAT
OTHER STATEMENTS IN IT APPEAR TO REFER TO HIS PHYSICAL CONDITION FOR
WORK AFTER THAT RATHER THAN DURING THE PRECEDING PERIOD WHEN HE WAS
SEPARATED.
THE ONLY INFORMATION AVAILABLE TO US BEARING ON MR. ROBINSON'S
PHYSICAL CONDITION DURING THE PERIOD HE WAS SEPARATED ARE CERTAIN
REFERENCES TO A PHYSICAL EXAMINATION PERFORMED BY A DR. A. E. JOHNSON
ON JANUARY 10, 1969, MORE THAN 3 MONTHS AFTER THE SEPARATION DATE. THE
REPORT OF THE EXAMINATION IS NOT INCLUDED IN OUR RECORDS. HOWEVER, WE
FIND REFERENCES TO IT IN THE DECISION OF THE BOARD OF APPEALS AND
REVIEW, UNITED STATES CIVIL SERVICE COMMISSION, AND IN LETTERS TO YOU
FROM THE DEPUTY REGIONAL DIRECTOR OF OPERATIONS DATED JANUARY 27, 1970;
THE DIRECTOR, PERSONNEL DIVISION, DATED MARCH 23, 1970; AND FROM THE
POSTMASTER DATED JUNE 9, 1970. THE LETTER FROM MR. OLIVER W. BOYD,
JR., DIRECTOR, PERSONNEL DIVISION, QUOTES A LETTER TO YOU FROM DR.
JOHNSON DATED THE DAY OF THE EXAMINATION, JANUARY 10, 1969, STATING THE
BELIEF OF THE DOCTOR THAT MR. ROBINSON "IS NOT ABLE TO DO THE TYPE OF
WORK WHICH HE WAS DOING, POSSIBLY BECAUSE OF THE USE OF ANTI-GOUT DRUGS,
BUT ALSO POSSIBLY AND MORE PROBABLY BECAUSE OF THE DISEASE ITSELF."
ACCORDING TO MR. BOYD'S LETTER, THE PHYSICIAN'S MEDICAL OPINION WAS THAT
"IT WAS UNLIKELY THAT MR. ROBINSON WOULD EVER BE ABLE TO RETURN TO HIS
POSTAL POSITION SORTING MAIL."
APPARENTLY, IT IS ON THE BASIS OF THIS MEDICAL REPORT, TOGETHER WITH
MR. ROBINSON'S HISTORY OF EXCESSIVE ABSENTEEISM PRIOR TO HIS SEPARATION,
THAT THE ADMINISTRATIVE AGENCY REFUSES TO ACCEPT THE EMPLOYEE'S
STATEMENT THAT HE WAS READY AND ABLE TO PERFORM HIS JOB DURING THE
PERIOD IN QUESTION.
ON THE OTHER HAND, WE FIND NOTHING TO SUPPORT YOUR CLAIM ON BEHALF OF
MR. ROBINSON THAT HE WOULD HAVE BEEN AVAILABLE FOR WORK ON EVERY DAY,
INCLUDING HOLIDAYS, WITHOUT LEAVE OF ANY KIND DURING THE 29 PAY PERIODS
OF HIS SEPARATION.
AS STATED TO YOU IN OUR LETTER OF APRIL 12, 1971, WHEN OPINIONS ARE
CONFLICTING AS TO THE ABILITY, FITNESS, AND AVAILABILITY OF AN EMPLOYEE
FOR DUTY, WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF AN
ADMINISTRATIVE AGENCY. MOREOVER, WE DO NOT FIND THE ADDITIONAL
INFORMATION YOU HAVE PRODUCED SUFFICIENT TO OVERCOME THE OPINION OF THE
AGENCY THAT MR. ROBINSON WAS NOT CONSIDERED READY AND ABLE TO PERFORM
HIS DUTIES DURING THE PERIOD OF HIS SEPARATION. OUR DECISION OF APRIL
12, 1971, IS HEREBY AFFIRMED.
B-172177, AUG 17, 1971
BID PROTEST - MISREPRESENTATIONS - BIDDER RESPONSIBILITY
DECISION DENYING PROTEST AGAINST THE AWARD OF A TERM SPECIAL USE
PERMIT TO STRAND ELECTRIC SERVICE CORPORATION (SELSCO), BY THE FOREST
SERVICE, FOR DEVELOPMENT AND OPERATION OF A COMMERCIAL TRAILER COURT OR
CAMP NEAR WEST YELLOWSTONE, GALLATIN NATIONAL FOREST, MONTANA.
THE RECORD DOES NOT SUPPORT PROTESTANT'S STATEMENTS REGARDING
MISREPRESENTATIONS BY SELSCO IN ITS PROPOSAL, OR ANY INTENT TO LIMIT
COMPETITIVE BIDDING. ALSO, SCHEMATIC PLANS WERE ADEQUATE TO COMPLY WITH
THE REQUIREMENTS OF THE PROSPECTIVES, AND SELSCO IS OBLIGATED BY THE
TERMS OF THE PERMIT TO SUBMIT DETAILED PLANS PRIOR TO CONSTRUCTION.
FINALLY, ALTHOUGH NO PROVISION IS MADE IN THE FOREST SERVICE MANUAL
FOR THE HANDLING OF PROTESTS AGAINST PERMIT AWARDS, THE FOREST SERVICE
GAVE DUE CONSIDERATION TO THE PROTEST AND THE COMP. GEN. IS UNABLE TO
CONCLUDE THAT THE DECISION THAT SELSCO IS RESPONSIVE AND RESPONSIBLE IS
ARBITRARY, CAPRICIOUS, OR WITHOUT A PROPER BASIS.
TO MR. NEWTON L. GUNTHER:
WE REFER TO YOUR PROTEST, BY LETTER OF MARCH 8, 1971, AND SUBSEQUENT
CORRESPONDENCE, AGAINST AWARD BY THE FOREST SERVICE, UNITED STATES
DEPARTMENT OF AGRICULTURE, OF A TERM SPECIAL USE PERMIT TO STRAND
ELECTRIC SERVICE CORPORATION (SELSCO) FOR DEVELOPMENT AND OPERATION,
OVER A PERIOD OF 30 YEARS, OF A COMMERCIAL TRAILER COURT OR CAMP NEAR
WEST YELLOWSTONE, GALLATIN NATIONAL FOREST, MONTANA.
IN JUNE 1970 THE FOREST SUPERVISOR, GALLATIN NATIONAL FOREST, ISSUED
A PROSPECTUS SOLICITING PROPOSALS FOR THE PLANNING, DEVELOPMENT,
OPERATION AND MAINTENANCE OF THE COMMERCIAL TRAILER COURT AND CAMPGROUND
IN QUESTION. THE PROSPECTUS SET FORTH CERTAIN MINIMUM REQUIREMENTS TO
QUALIFY A PROPOSAL FOR CONSIDERATION AND STATED THAT THE PERMIT, A
SAMPLE COPY OF WHICH WAS INCORPORATED IN THE PROSPECTUS, WOULD PROVIDE
FOR ADDITIONAL DEVELOPMENT AS PROPOSED BY THE PERMITTEE AND APPROVED BY
THE FOREST SERVICE.
PROSPECTIVE APPLICANTS WERE ADVISED THAT PLANS SUBMITTED WITH
PROPOSALS COULD BE SCHEMATIC, BUT THAT DETAILED DEVELOPMENT PLANS, AS
OUTLINED IN CLAUSE 29 OF THE PERMIT, WOULD BE REQUIRED AFTER AWARD AND
PRIOR TO CONSTRUCTION. OTHER INFORMATION REQUIRED TO BE FURNISHED WITH
PROPOSALS INCLUDED A COMPLETE PLAN FOR FINANCING THE DEVELOPMENT,
BUSINESS AND PERSONAL REFERENCES, PLAN OF OPERATION (I.E., BY PERSON,
PARTNERSHIP, CORPORATE, ETC.), AND A PROPOSAL SETTING FORTH THE
SURCHARGE BID OFFERED BY THE APPLICANT TO THE UNITED STATES FOR USE OF
THE SITE.
PAGE 11 OF THE PROSPECTUS CARRIED A STATEMENT ADVISING THAT PROPOSALS
WOULD BE JUDGED ON, BUT NOT LIMITED TO, THE FOLLOWING:
"1. THE PLAN MEETING OR EXCEEDING THE MINIMUM DEVELOPMENT
REQUIREMENTS SET FORTH IN THIS PROSPECTUS, WHICH IN THE OPINION OF THE
FOREST SERVICE, PROVIDES THE BEST FACILITIES AND SERVICES FOR THE
PUBLIC.
"2. QUALIFICATIONS OF APPLICANTS:
A. FINANCIAL ABILITY TO UNDERTAKE THE PROJECT AND OPERATE IT.
B. BUSINESS ABILITY AND REPUTATION.
"3. THE SURCHARGE BID (OPTIONAL) OFFERED FOR THE PERMIT."
THE SAMPLE PERMIT CARRIED A REFERENCE TO THE ACT OF MARCH 4, 1915, AS
AMENDED, 16 U.S.C. 497, UNDER WHICH THE SECRETARY OF AGRICULTURE IS
AUTHORIZED TO ISSUE PERMITS FOR THE USE AND OCCUPANCY OF LAND IN THE
NATIONAL FORESTS, AND TO FOREST SERVICE MANUAL (FSM) 2710, WHICH SETS
FORTH THE GOVERNING REGULATIONS ISSUED BY THE SECRETARY, AS AUTHORIZED
IN THE ACT. CLAUSE 30 OF THE PERMIT REQUIRES THE PERMITTEE TO FURNISH
TO THE GOVERNMENT A PERFORMANCE BOND IN THE AMOUNT OF $10,000, AND
CLAUSE 56 REQUIRES NOTICE TO, AND APPROVAL BY, THE FOREST SERVICE OF ANY
ACQUISITION OR ASSUMPTION BY ANOTHER PARTY OF ANY RIGHT OR OBLIGATION OF
THE PERMITTEE UNDER THE PERMIT. CLAUSE 58 REQUIRES A CORPORATE
PERMITTEE TO FURNISH TO THE FOREST SUPERVISOR CERTAIN INFORMATION AS TO
THE CORPORATE STRUCTURE TOGETHER WITH NOTICE OF ANY SUBSEQUENT CHANGES
THEREIN AND, UPON REQUEST OF THE FOREST SUPERVISOR, A CERTIFIED LIST OF
STOCKHOLDERS AND THE EXTENT OF THEIR INDIVIDUAL HOLDINGS.
YOU STATE THAT ON AUGUST 17, 1970, THE FOREST SERVICE PUBLICLY OPENED
THE PROPOSALS RECEIVED IN RESPONSE TO THE PROSPECTUS, AND THAT THE
SURCHARGE BIDS WERE REPORTED AS .050 PERCENT FOR MR. DOUGLAS WOLFORD;
.077 PERCENT FOR YOU; AND 200 PERCENT FOR SELSCO. THE SELSCO PROPOSAL,
YOU STATE, WAS SUBMITTED BY MR. LEROY STRAND, WHO SERVES AS VICE
PRESIDENT OF SELSCO AND AS VICE PRESIDENT OF UNITED CAMPGROUNDS, USA.
YOU FURTHER STATE THAT AFTER RECEIPT BY YOU ON SEPTEMBER 8, 1970, OF
NOTICE FROM THE FOREST SERVICE THAT YOUR PROPOSAL WAS UNACCEPTABLE AND
THAT AWARD WAS TO BE MADE TO SELSCO YOU FILED A PROTEST WITH THE
CONTRACTING OFFICER, WHICH HAS NOT BEEN RESOLVED TO YOUR SATISFACTION.
YOUR PROTEST TO OUR OFFICE WAS THE SUBJECT OF TWO STATEMENTS FROM THE
FOREST SERVICE, WHICH HAVE BEEN MADE AVAILABLE TO YOU. AS STATED IN A
REBUTTAL LETTER OF JUNE 23, 1971, TO SUCH STATEMENTS, YOU PROTEST THAT
(1) SELSCO'S PROPOSAL WAS NONRESPONSIVE TO THE PROSPECTUS FOR FAILURE TO
INCLUDE ADEQUATE BUILDING PLANS; (2) THE ACT OF MARCH 4, 1915, SUPRA,
DOES NOT AUTHORIZE THE SECRETARY OF AGRICULTURE TO IGNORE THE FEDERAL
PROCUREMENT REGULATIONS ISSUED PURSUANT TO THE FEDERAL PROPERTY AND
ADMINISTRATIVE SERVICES ACT OF 1949 AND/OR REVISED STATUTES 3709; (3)
THE SUBMISSION BY SELSCO WITH ITS PROPOSAL OF A BROCHURE DEPICTING
FACILITIES BELONGING TO A MR. DON OLSON WAS A MISREPRESENTATION; (4)
THE USE OF BUILDING PLANS DRAWN BY BOISE CASCADE CORPORATION LIMITED
COMPETITIVE BIDDING IN POSSIBLE VIOLATION OF THE ANTITRUST STATUTES;
AND (5) MORE THAN A FRANCHISE AGREEMENT EXISTS BETWEEN SELSCO AND UNITED
CAMPGROUNDS, USA (THIS APPARENTLY HAS REFERENCE TO YOUR REPEATED
ASSERTIONS THAT THE PROPOSAL ACCEPTED BY THE FOREST SERVICE IS A
PROPOSAL FROM UNITED CAMPGROUNDS, USA).
THE FOREST SERVICE HAS ADVISED THAT THE THREE PROPOSALS WERE
INITIALLY SUBMITTED TO A TEAM OF FOREST SERVICE PERSONNEL, WHICH
INCLUDED AN ENGINEER AND AN ARCHITECT. THIS TEAM EVALUATED THE
PROPOSALS ON THE BASIS OF ALL OF THE FACTORS SET FORTH IN THE
PROSPECTUS, INCLUDING THE SURCHARGE BID FOR THE PERMIT, AND SELECTED THE
PLAN SUBMITTED BY SELSCO AS THE ONE WHICH WOULD PROVIDE THE BEST
FACILITIES AND SERVICES.
THE FOREST SERVICE HAS FURTHER ADVISED THAT THE THREE DEVELOPMENT
PLANS WERE THEREAFTER SUBMITTED TO QUALIFIED PERSONNEL IN THE DIVISION
OF RECREATION AND LANDS IN THE FOREST SERVICE REGIONAL OFFICE. THIS
GROUP, IT IS REPORTED, ALSO SELECTED THE SELSCO PLAN AND DID NOT
CONSIDER THE SURCHARGE UNTIL AFTER THE THREE PLANS HAD BEEN REVIEWED AND
JUDGED.
BASED ON THE ANALYSIS OF THE PROPOSALS BY THE FOREST SERVICE TEAM AND
THE SUBSEQUENT REVIEW BY THE REGIONAL OFFICE PERSONNEL, THE FOREST
SUPERVISOR ARRIVED AT A TENTATIVE DECISION TO ACCEPT THE SELSCO PROPOSAL
AND SO NOTIFIED SELSCO ON SEPTEMBER 4, 1970. AS THE FOREST SERVICE
ADVISED YOU BY LETTER OF MAY 4, 1971, SELSCO ACCEPTED THE PERMIT ON
DECEMBER 6, 1970, BUT THE FOREST SUPERVISOR DID NOT SIGN THE PERMIT
UNTIL FEBRUARY 26, 1971.
THE RECORD BEFORE OUR OFFICE INCLUDES A STATEMENT BY THE FOREST
SERVICE TO THE EFFECT THAT THE FOREST SUPERVISOR VERIFIED THAT SELSCO
HAD AUTHORITY TO USE THE BOISE CASCADE CORPORATION PLANS SUBMITTED WITH
SELSCO'S PROPOSAL. THIS INFORMATION WOULD APPEAR TO BE CONFIRMED BY
ADVICE FURNISHED TO YOU BY BOISE CASCADE IN A LETTER DATED FEBRUARY 26,
1971, THAT BOISE CASCADE HAD INFORMED THE FOREST SERVICE THAT IT HAS NO
OBJECTION TO THE USE OF ITS DRAWINGS BY SELSCO/UNITED CAMPGROUNDS
PROVIDED BOISE CASCADE IS NOT RESPONSIBLE FOR ANY DAMAGES RESULTING FROM
SUCH USE.
AS TO THE OLSON BROCHURE, WHICH BEARS THE NAME OF UNITED CAMPGROUNDS,
USA, THE RECORD INDICATES THAT THE BROCHURE WAS PRINTED FOR OLSON BY
UNITED CAMPGROUNDS, USA, UNDER A FRANCHISE AGREEMENT DATED APRIL 3,
1970. THE AGREEMENT CALLED FOR OPENING AND OPERATION OF THE PARTICULAR
CAMPGROUND BY OLSON ON OR BEFORE MAY 15, 1971, AND AS RECENTLY AS MARCH
1971 THE PARTIES WERE CORRESPONDING IN THE MATTER. IT WOULD APPEAR,
THEREFORE, THAT AT THE TIME SELSCO SUBMITTED ITS PROPOSAL THE BROCHURE
REPRESENTED A CAMPGROUND WHICH UNITED CAMPGROUNDS EXPECTED TO FRANCHISE.
WHILE SELSCO WAS NOT PARTY TO THE UNITED CAMPGROUNDS AGREEMENTS WITH
BOISE CASCADE AND OLSON, SELSCO HAS STATED THAT ITS USE OF THE BOISE
CASCADE DRAWINGS DERIVED FROM ITS OWN FRANCHISE AGREEMENT WITH UNITED
CAMPGROUNDS. SINCE THE FOREST SERVICE WAS AWARE OF SUCH AGREEMENT, IT
DOES NOT APPEAR THAT IT WAS MISLED BY THE INCLUSION OF THE DRAWINGS AND
THE BROCHURE IN SELSCO'S PROPOSAL. RATHER, AS THE FOREST SERVICE HAS
NOTED, UNITED CAMPGROUNDS HAS NOT BECOME A FOREST SERVICE PERMITTEE BY
REASON OF ITS FRANCHISE AGREEMENT WITH SELSCO, WHO IS CURRENTLY
PERFORMING ALL OF ITS PRECONSTRUCTION PLANNING AND OTHER WORK
INDEPENDENTLY OF UNITED CAMPGROUNDS.
IN LIGHT OF THE FOREGOING, WE SEE NO SUPPORT FOR YOUR STATEMENTS
REGARDING MISREPRESENTATIONS BY SELSCO IN ITS PROPOSAL, OR ANY INTENT TO
LIMIT COMPETITIVE BIDDING. AS TO THE QUESTION OF VIOLATION OF THE
ANTITRUST STATUTES, WHICH ARE CRIMINAL LAWS, SUCH MATTERS ARE FOR
CONSIDERATION BY THE DEPARTMENT OF JUSTICE, AND YOUR ALLEGATIONS SHOULD
THEREFORE BE MADE TO THAT DEPARTMENT.
WITH RESPECT TO THE SUFFICIENCY OF THE BUILDING PLANS SUBMITTED WITH
SELSCO'S PROPOSAL, THE FOREST SERVICE HAS ADVISED THAT THE PLANS,
ALTHOUGH SCHEMATIC, WERE ADEQUATE TO COMPLY WITH THE REQUIREMENTS OF THE
PROSPECTUS. SINCE THE PROSPECTUS PERMITTED THE USE OF SCHEMATIC PLANS,
AND SINCE SELSCO IS OBLIGATED BY THE TERMS OF THE PERMIT TO SUBMIT
DETAILED PLANS FOR FOREST SERVICE APPROVAL PRIOR TO CONSTRUCTION, WE ARE
UNABLE TO CONCLUDE THAT SELSCO'S PROPOSAL WAS NONRESPONSIVE IN THIS
RESPECT TO THE PROSPECTUS.
AS TO APPLICATION OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) TO THE
GRANT OF TERM SPECIAL USE PERMITS BY THE FOREST SERVICE, SECTION 3(D) OF
THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS
AMENDED, 40 U.S.C. 472(D), SPECIFICALLY EXCLUDES LANDS RESERVED OR
DEDICATED FOR NATIONAL FOREST OR NATIONAL PARK PURPOSES FROM THE
APPLICATION OF TITLES I THROUGH VI OF THE ACT. IT IS APPARENT,
THEREFORE, THAT THE FPR, WHICH ARE ISSUED IN IMPLEMENTATION OF TITLE III
OF THE ACT, DO NOT APPLY TO THE GRANT OF THE PERMIT IN QUESTION.
SECTION 3709, REVISED STATUTES, AS AMENDED, 41 U.S.C. 5, STATES A
REQUIREMENT FOR THE USE OF PUBLIC ADVERTISING FOR PURCHASES AND
CONTRACTS FOR SUPPLIES OR SERVICES FOR THE GOVERNMENT AND FOR CERTAIN
SALES OF GOVERNMENT PROPERTY UNLESS OTHERWISE PROVIDED IN THE
APPROPRIATION CONCERNED OR OTHER LAW. SINCE THE ACT OF MARCH 4, 1915,
SUPRA, SPECIFICALLY AUTHORIZES THE SECRETARY OF AGRICULTURE TO GRANT
PERMITS FOR THE USE OF LAND WITHIN THE NATIONAL FORESTS "UNDER SUCH
REGULATIONS AS HE MAY MAKE AND UPON SUCH TERMS AND CONDITIONS AS HE MAY
DEEM PROPER," IT IS EVIDENT THAT SECTION 3709, REVISED STATUTES, DOES
NOT APPLY TO THE EXERCISE OF SUCH AUTHORITY EVEN IF IT COULD BE
CONSIDERED THAT THE FOREST SERVICE IN ISSUING LAND USE PERMITS IS
PROCURING SERVICES. THERE REMAINS, THEREFORE, FOR CONSIDERATION WHETHER
IN THIS CASE THE FOREST SERVICE HAS COMPLIED WITH THE REGULATIONS WHICH
HAVE BEEN ISSUED IN IMPLEMENTATION OF THE ACT OF MARCH 4, 1915.
TITLE 2700 OF THE FOREST SERVICE MANUAL INCLUDES THE FOLLOWING
PERTINENT PROVISIONS:
"2710.3 - POLICY
"1. INVITE THROUGH PROSPECTUS, BID, AND PERMIT PROCEDURES THE
INSTALLATION OF THOSE PUBLIC SERVICES AND CONVENIENCES NEEDED FOR
ACCOMMODATION OF RECREATION VISITORS AND OTHER USERS OF THE NATIONAL
FOREST.
"2. REQUIRE A CHARGE COMMENSURATE WITH THE VALUE OF THE USE, EXCEPT
WHEN FREE USE OR A NOMINAL FEE IS CLEARLY IN THE PUBLIC INTEREST, OF
BENEFIT TO NATIONAL FOREST RESOURCES DEVELOPMENT, PROTECTION, AND
PROGRAMS, OR OF BENEFIT TO THE UNITED STATES.
"2710.43 - AUTHORITY TO ISSUE BY FOREST SUPERVISORS AFTER REVIEW AND
ADVICE BY REGIONAL FORESTER'S STAFF
"2. TERM PERMITS (ACT OF MARCH 4, 1915, AS AMENDED) FOR CONCESSION
AND INDUSTRIAL PURPOSES WHEN TOTAL PLANNED INVESTMENT IS IN EXCESS OF
$250,000.
"2712 - APPLICATIONS. APPLICATIONS FOR PERMITS MAY BE MADE ORALLY,
BY LETTER, BY BID IN RESPONSE TO A PROSPECTUS, OR BY FORM 2700-3 OR BY
SOME OTHER SPECIALLY PRESCRIBED FORM. ***
EACH APPLICATION MUST CONTAIN ENOUGH INFORMATION TO FULLY DESCRIBE
THE USE REQUESTED. THIS MUST INCLUDE AN EXACT DESCRIPTION OF THE TRACT
OF LAND, THE EXTENT AND NATURE OF THE USE, THE ACREAGE OF LAND OR LIST
OF GOVERNMENT IMPROVEMENTS INVOLVED. IT SHOULD ALSO INCLUDE INFORMATION
ON HOW OFTEN AND FOR WHAT PERIOD THE USE IS CONTEMPLATED, AND THE
APPLICANT'S ABILITY TO SATISFY THE REQUIREMENTS OF THE PROPOSED USE.
FOR LARGE COMPLEX USES, WHEN APPROVAL SEEMS LIKELY, SUPPORTING DATA MAY
BE REQUIRED IN THE FORM OF FINANCIAL STATEMENTS, RECORDS OF EXPERIENCE,
MAPS, SURVEYS, DESIGNS, AND LAYOUTS. SUCH INFORMATION, HOWEVER, SHOULD
BE LIMITED TO THAT ESSENTIAL FOR EVALUATION OF THE PROPOSED USE AND NEED
NOT BE IN FINAL FORM AS WOULD BE PRESENTED FOR CONSTRUCTION APPROVAL.
CARE MUST BE EXERCISED WHEN REQUIRING AN APPLICANT TO GO TO CONSIDERABLE
EXPENSE TO PROVIDE SUCH DATA. TO DO SO, COULD IMPLY APPROVAL OF THE
PERMIT APPLICATION.
"2712.1 - QUALIFICATIONS OF APPLICANTS. EXCEPT THAT MEMBERS OF THE
CONGRESS AND RESIDENT COMMISSIONERS ARE PROHIBITED BY LAW FROM HOLDING
CERTAIN TYPES OF SPECIAL-USE PERMITS (ITEM 10, FSM 2703) ANY INDIVIDUAL,
CORPORATION, ASSOCIATION, MUNICIPALITY, OR AGENCY OF LOCAL OR STATE
GOVERNMENT IS ELIGIBLE FOR CONSIDERATION FOR SPECIAL-USE PERMIT.
"THE QUALIFICATIONS OF ANY APPLICANT REGARDLESS OF HOW THE
APPLICATION IS MADE WILL BE CAREFULLY CONSIDERED BEFORE APPROVING A
SPECIAL-USE APPLICATION. THIS WILL BE DONE WHETHER THE APPLICATION
COVERS EXISTING FACILITIES OR PLANNED NEW FACILITIES. SEE FSM 2716.12.
OF PRIMARY INTEREST WHEN A PUBLIC SERVICE IS INVOLVED IS THE APPLICANT'S
ABILITY TO PERFORM ACCORDING TO THE PERMIT TERMS. INFORMATION ON THE
FOLLOWING POINTS IS HELPFUL IN ANALYZING THE QUALIFICATIONS OF ANY
APPLICANT. IT SHOULD BE SPECIFICALLY REQUESTED IN AN INVITATION FOR BID
PROPOSAL (FSM 2712.2):
1. THE KIND AND QUALITY OF THE SERVICE TO BE OFFERED.
2. THE FINANCIAL RESOURCES OF THE APPLICANT. THIS MAY REQUIRE AN
EXTENSIVE REVIEW OF THE APPLICANT'S CREDIT REFERENCE AND FINANCIAL
RESPONSIBILITY. THE APPLICANT SHOULD HAVE IN CASH OR READILY
CONVERTIBLE ASSETS AT LEAST 25 PERCENT OF THE ESTIMATED DEVELOPMENT COST
OF THE PROJECT.
3. THE BUSINESS EXPERIENCE AND QUALIFICATIONS OF THE APPLICANT IN
RELATION TO THE PROPOSED USE.
4. THE FEE OFFERED FOR CONCESSION PERMIT PRIVILEGES.
"2712.2 - PROSPECTUS. WHEN CAREFUL MULTIPLE USE OR FUNCTIONAL
PLANNING, THAT IS FULLY RESPONSIVE TO THE INTENT OF THE MULTIPLE USE AND
NATIONAL ENVIRONMENTAL POLICY ACTS, INDICATES THAT A CONCESSION SPECIAL
USE OPPORTUNITY IS AVAILABLE AND THERE IS A DEMONSTRATED PUBLIC NEED FOR
THE SERVICE, EVERY EFFORT SHOULD BE MADE TO OBTAIN THE BEST QUALIFIED
PERMITTEE AS WELL AS AN EQUITABLE RETURN TO THE UNITED STATES. THIS
WILL BE ACCOMPLISHED BY ISSUING A PROSPECTUS. ***
"IN SOLICITING BIDS, A COMPLETE PROSPECTUS WITH A SAMPLE PERMIT OR
PERMITS SHOULD BE CIRCULATED, SETTING FORTH THE MINIMUM FACILITIES AND
SERVICES WHICH MUST BE FURNISHED, CONSTRUCTION REQUIREMENTS, AND TIME
LIMITS.
"6. SELECTION OF SUCCESSFUL APPLICANT. THE PROSPECTUS WILL SPECIFY
THE CRITERIA TO BE USED. THESE SHOULD INCLUDE, BUT ARE NOT NECESSARILY
LIMITED TO, THE:
A. KIND AND QUALITY OF SERVICE PROPOSED IN TERMS OF MEETING PUBLIC
NEED.
B. APPLICANT'S EXPERIENCE IN THIS OR RELATED FIELDS AND THE
QUALIFICATION HE POSSESSES TO FULLY SATISFY THE PUBLIC NEED FOR SERVICE.
C. VERIFICATION OF FINANCIAL RESOURCES.
D. RETURN TO THE GOVERNMENT.
"7. SPECIAL CONDITIONS. THIS SHOULD INCLUDE RESERVATIONS AND
CONDITIONS BY THE FOREST SERVICE, SUCH AS THE RIGHT TO REJECT ANY OR ALL
BIDS, AND THE CONDITIONS UNDER WHICH THE TERMS OF THE PROSPECTUS MAY BE
MODIFIED. THE FOREST SERVICE IS NOT OBLIGATED TO ACCEPT THE PROPOSAL
WITH THE HIGHEST BID. THE OBJECTIVE IS TO SELECT AN APPLICANT WHOSE
PROPOSAL WILL BEST SERVE THE PUBLIC NEED. HOWEVER, THE ADVICE OF THE
ATTORNEY IN CHARGE AND THE FISCAL AGENT SHOULD BE SOUGHT PRIOR TO
ACCEPTING A BID THAT DOES NOT PROVIDE THE HIGHEST RETURN."
WE HAVE LONG OBSERVED, WITH RESPECT TO GOVERNMENT PROCUREMENTS, THAT
THE FUNCTION OF DETERMINING WHETHER SUPPLIES OR SERVICES OFFERED TO THE
GOVERNMENT MEET ITS NEEDS AS STATED IN A PROCUREMENT SOLICITATION, AS
WELL AS THE FUNCTION OF DETERMINING WHETHER A PARTICULAR BIDDER OR
OFFEROR IS A RESPONSIBLE PROSPECTIVE CONTRACTOR FOR THE PURPOSE OF A
PROCUREMENT, RESTS PRIMARILY WITH THE CONTRACTING AGENCY. WE HAVE
THEREFORE CONSISTENTLY DECLINED TO QUESTION THE JUDGMENT OF THE
CONTRACTING AGENCY IN THE ABSENCE OF INDICATION OF ARBITRARY OR
CAPRICIOUS ACTION OR UNLESS THERE IS NO SUBSTANTIAL EVIDENTIARY SUPPORT
FOR THE ACTION TAKEN.
THE RECORD IN THIS CASE INDICATES THAT THE PROSPECTUS WAS ISSUED IN
COMPLIANCE WITH THE PROVISIONS OF THE FOREST SERVICE MANUAL AND THAT THE
EVALUATION OF THE PROPOSALS WAS IN ACCORD WITH THE TERMS OF THE
PROSPECTUS AND THE FOREST SERVICE REGULATIONS. THE RECORD FURTHER
INDICATES THAT WHILE NO PROVISION IS MADE IN SUCH REGULATIONS FOR THE
HANDLING OF PROTESTS AGAINST PERMIT AWARDS, THE FOREST SERVICE
NEVERTHELESS GAVE DUE CONSIDERATION TO YOUR PROTEST AND DELAYED SIGNING
OF THE PERMIT UNTIL IT HAD ASCERTAINED TO ITS OWN SATISFACTION THAT THE
ORIGINAL DECISION TO MAKE AWARD TO SELSCO, AS A RESPONSIVE AND
RESPONSIBLE OFFEROR, WAS JUSTIFIED.
ON THE RECORD BEFORE US, WE THEREFORE, ARE UNABLE TO CONCLUDE THAT
THE ACTION TAKEN BY THE FOREST SERVICE WAS ARBITRARY, CAPRICIOUS OR
WITHOUT A PROPER BASIS. ACCORDINGLY, YOUR PROTEST IS DENIED.
B-172591, AUG 17, 1971
BID PROTEST - BUY AMERICAN ACT
DENIAL OF PROTEST BY CAMPBELL CHAIN AGAINST AWARD OF A CONTRACT TO
ANY OTHER FIRM UNDER AN IFB ISSUED BY THE ARMY TANK AUTOMOTIVE COMMAND
FOR THE PROCUREMENT OF TIRE CHAIN ASSEMBLIES. PROTESTANT CONTENDS THAT
THEIR BID WOULD BE LOW IF PROPER EVALUATION FACTORS WERE USED ON THE
BIDS SUBMITTED BY NOSTED KJETTING (NOSTED) AND DOMINION CHAIN CO., LTD.
(DOMINION).
IT IS AGREED THAT NOSTED'S BID WILL BE HIGH WHEN PROPERLY EVALUATED.
BECAUSE DOMINION'S END PRODUCTS ARE EXCLUDED BY ASPR 6-103.5(A) FROM THE
BUY AMERICAN ACT RESTRICTIONS, NO DIFFERENTIAL NEED BE APPLIED. THE
U.S. MANUFACTURER'S EXCISE TAX AND FREIGHT COST FACTORS WERE CORRECTLY
APPLIED AS REQUIRED BY THE IFB, WITH THE RESULT THAT DOMINION'S BID WAS
STILL LOW. CONSEQUENTLY, THERE IS NO LEGAL BASIS UPON WHICH TO DISTURB
THE AWARD.
TO CAMPBELL CHAIN:
WE REFER TO YOUR PROTEST, BY LETTER DATED APRIL 8, 1971, AS
SUPPLEMENTED BY YOUR LETTER DATED JUNE 24, AGAINST AWARD OF A CONTRACT
TO ANY BIDDER OTHER THAN YOU UNDER INVITATION FOR BIDS (IFB)
DAAE07-71-B-1432, ISSUED MARCH 5, 1971, BY THE UNITED STATES ARMY
TANK-AUTOMOTIVE COMMAND FOR THE PROCUREMENT OF TIRE CHAIN ASSEMBLIES.
THE SUBSTANCE OF YOUR PROTEST IS THAT WHEN PROPER FACTORS ARE CONSIDERED
IN THE EVALUATION OF THE BIDS OF NOSTED KJETTING (NOSTED) AND DOMINION
CHAIN CO., LTD. (DOMINION), WHO HAVE QUOTED LOWER UNIT PRICES THAN YOU
HAVE QUOTED, YOUR BID IS LOWEST.
IN THE CASE OF NOSTED, A NORWEGIAN CONCERN, WHICH OFFERS AN END
PRODUCT MANUFACTURED IN NORWAY BUT EXCLUDED BY NOSTED FROM THE BUY
AMERICAN CERTIFICATE IN ITS BID, YOU ASSERT THAT A FIFTY PERCENT PRICE
DIFFERENTIAL IS APPLICABLE FOR EVALUATION PURPOSES UNDER THE TERMS OF
ARMED SERVICES PROCUREMENT REGULATION (ASPR), SECTION 6, ISSUED IN
IMPLEMENTATION OF THE BUY AMERICAN ACT (41 U.S.C. 10A-D). IN ADDITION,
YOU ASSERT THAT ALTHOUGH NOSTED'S BID STATES THAT IT INCLUDES ALL
APPLICABLE FEDERAL AND STATE TAXES, NOSTED GAINS A COMPETITIVE ADVANTAGE
OVER DOMESTIC BIDDERS BECAUSE IT IS NOT REQUIRED TO PAY FEDERAL, STATE
AND/OR LOCAL TAXES. YOU THEREFORE URGE THAT AN AMOUNT EQUIVALENT TO
SUCH TAXES SHOULD BE ADDED TO NOSTED'S BID PRICE TO COUNTERBALANCE THIS
INEQUITY. WHEN THUS EVALUATED, YOU STATE, NOSTED'S BID IS NOT LOWEST.
AS TO THE BID OF DOMINION, A CANADIAN FIRM WHICH OFFERS AN END
PRODUCT MANUFACTURED IN CANADA, YOU STATE THAT THE IFB PROVIDES FOR
ADDITION TO THE BID PRICE OF AMOUNTS SUFFICIENT TO COVER FREIGHT CHARGES
AND EXCISE TAX. SUCH AMOUNTS, YOU CLAIM, WILL INCREASE DOMINION'S BID
TO AN AMOUNT IN EXCESS OF YOUR BID.
THE IFB REQUESTED BIDS FOR THE FURNISHING OF A TOTAL QUANTITY OF
10,042 PAIRS OF TIRE CHAIN ASSEMBLIES, IDENTIFIED BY FEDERAL STOCK NO.
2540-933-9022, TO BE SHIPPED IN VARYING INCREMENTS TO SEVERAL DIFFERENT
DESTINATIONS. THE ASSEMBLIES ARE INCLUDED IN GROUP 25, VEHICULAR
EQUIPMENT COMPONENTS (ALL CLASSES), WHICH IS LISTED IN ARMY PROCUREMENT
PROCEDURE 6-103.5 AMONG CANADIAN SUPPLIES TO BE CONSIDERED AS DOMESTIC
SOURCE END PRODUCTS FOR BID EVALUATION PURPOSES UNDER THE ASPR
PROVISIONS RELATING TO APPLICATION OF THE BUY AMERICAN ACT RESTRICTIONS.
(SEE ASPR 6-103.5(A).)
BID PRICES WERE REQUIRED TO INCLUDE ALL APPLICABLE TAXES AND DUTIES.
FOR F.O.B. ORIGIN BIDS THE LOWEST AVAILABLE FREIGHT RATES WERE TO BE
APPLIED FOR EVALUATION PURPOSES, AND FOR CANADIAN BIDS THE APPLICABLE
UNITED STATES MANUFACTURER'S EXCISE TAX WAS TO BE AN ADDITIONAL
EVALUATION FACTOR.
CLAUSES INCORPORATED IN THE IFB BY REFERENCE UNDER PARAGRAPH L-2 OF
THE GENERAL PROVISIONS INCLUDE THE BUY AMERICAN ACT CLAUSE SET FORTH IN
ASPR 6-104.5 AND THE DUTY-FREE ENTRY - CANADIAN SUPPLIES CLAUSE SET
FORTH IN ASPR 6-605.2 APPLICABLE TO CANADIAN SUPPLIES ON DEPARTMENTAL
LISTS MAINTAINED PURSUANT TO ASPR 6-103.5(A).
IN THE BUY AMERICAN ACT CLAUSE A DOMESTIC SOURCE END PRODUCT IS
DEFINED AS "(A) AN UNMANUFACTURED END PRODUCT WHICH HAS BEEN MINED OR
PRODUCED IN THE UNITED STATES AND (B) AN END PRODUCT MANUFACTURED IN THE
UNITED STATES IF THE COST OF THE COMPONENTS THEREOF WHICH ARE MINED,
PRODUCED, OR MANUFACTURED IN THE UNITED STATES OR CANADA EXCEEDS 50
PERCENT OF THE COST OF ALL ITS COMPONENTS." FURTHER, THE CLAUSE INCLUDES
A NOTATION THAT BIDS OFFERING DOMESTIC SOURCE END PRODUCTS NORMALLY WILL
BE EVALUATED AGAINST BIDS OFFERING OTHER END PRODUCTS BY ADDING A FACTOR
OF FIFTY PERCENT TO THE LATTER, EXCLUSIVE OF DUTIES.
ON MARCH 31, 1971, BIDS WERE OPENED AS SCHEDULED. DOMINION OFFERED
THE LOWEST UNIT PRICE OF $30.20; NOSTED WAS SECOND WITH A UNIT PRICE OF
$32.62; AND YOU WERE THIRD WITH A UNIT PRICE OF $33.46.
SINCE NOSTED'S END PRODUCT OF NORWEGIAN MANUFACTURE WAS NOT COVERED
BY ANY AUTHORIZED EXEMPTION FROM THE RESTRICTIONS OF THE BUY AMERICAN
ACT, NOSTED'S BID WAS EVALUATED AS A FOREIGN BID IN ACCORDANCE WITH THE
PROVISIONS OF ASPR 6-104.4(B). UNDER SUCH PROVISIONS, NOSTED'S BID
PRICE OF $323,553.24 FOR THE TOTAL PROCUREMENT QUANTITY OF 10,042 UNITS
(EXCLUDING DUTY OF 40 CENTS PER UNIT) WAS INCREASED BY A FIFTY PERCENT
DIFFERENTIAL OF $161,776.62 TO $485,329.86. FURTHER, AFTER ADDITION OF
FREIGHT COSTS IN THE AMOUNT OF $11,146.19, THE TOTAL EVALUATED BID WAS
$496,476.05, WHICH EXCEEDED ALL OTHER EVALUATED BIDS. SINCE NOSTED'S
BID THEREFORE IS NOT IN LINE FOR AWARD, NO FURTHER CONSIDERATION NEED BE
GIVEN TO THAT PORTION OF YOUR PROTEST.
BECAUSE DOMINION'S END PRODUCTS OF CANADIAN MANUFACTURE ARE EXCLUDED
BY ASPR 6-103.5(A) FROM THE BUY AMERICAN ACT RESTRICTIONS, NO
DIFFERENTIAL WAS APPLIED TO ITS BID. HOWEVER, IN ACCORDANCE WITH THE
PROVISIONS OF THE IFB RELATING TO CANADIAN BIDS, THERE WAS ADDED TO
DOMINION'S BID OF $303,268.40 THE AMOUNT OF $24,261.46 FOR UNITED STATES
MANUFACTURER'S EXCISE TAX WHICH, TOGETHER WITH THE AMOUNT OF $15,903.11
ADDED FOR FREIGHT COSTS, PRODUCED A TOTAL EVALUATED BID PRICE OF
$343,432.97.
YOUR BID OF $33.46 PER UNIT TOTALLED $336,005.32. FROM THIS AMOUNT
THE PROMPT PAYMENT DISCOUNT OF 1/2 PERCENT OFFERED BY YOU, AMOUNTING TO
$1,680.03, WAS DEDUCTED, AND TO THE DISCOUNTED PRICE OF $334,325.29
THERE WAS ADDED THE AMOUNT OF $10,682.39 FOR FREIGHT COSTS. YOUR
EVALUATED BID PRICE, THEREFORE, AMOUNTED TO $345,007.68, OR $1,574.71
HIGHER THAN DOMINION'S EVALUATED BID PRICE.
THE ONLY OTHER BID SUBMITTED UNDER THE IFB, FROM AMERICAN CHAIN AND
CABLE COMPANY, INC., WAS HIGHER THAN YOUR BID BUT LOWER THAN THE
EVALUATED BID OF NOSTED.
FROM THE FOREGOING, IT IS APPARENT THAT, UPON EVALUATION OF THE BIDS
IN QUESTION IN ACCORDANCE WITH THE TERMS OF THE IFB AND THE APPLICABLE
PROCUREMENT REGULATIONS, DOMINION'S BID WAS LOWEST. IN THE
CIRCUMSTANCES, WE FIND NO LEGAL BASIS TO QUESTION AWARD BASED ON THE BID
SUBMITTED BY DOMINION, WHICH WAS ENDORSED BY THE CANADIAN COMMERCIAL
CORPORATION PRIOR TO BID OPENING AS REQUIRED BY ASPR 6-504.1(B)(2),
PROVIDED THAT THE BID IS DETERMINED TO BE RESPONSIVE AND THE BIDDER
RESPONSIBLE. YOUR PROTEST IS THEREFORE DENIED.
B-173458, AUG 17, 1971
CIVILIAN EMPLOYEE - ACCRUED LEAVE - ENTITLEMENT
DECISION ALLOWING CLAIM OF MR. U. OWEN WALKER, FORMER EMPLOYEE OF THE
DEFENSE SUPPLY AGENCY, FOR ANNUAL LEAVE TREATED AS FORFEITED AT THE TIME
OF HIS RESIGNATION.
AS CLAIMANT WORKED FROM THE DATE HE GAVE NOTIFICATION OF HIS
RESIGNATION TO THE EFFECTIVE DATE THEREOF, IN COMPLIANCE WITH THE
REQUEST OF HIS MILITARY SUPERIOR AND BECAUSE OF THE NEEDS OF THE
GOVERNMENT, RATHER THAN TAKE LEAVE IN THE INTERIM, HIS SEPARATION MAY BE
CONSIDERED INEFFECTIVE AND NOT IN COMPLIANCE WITH APPLICABLE REGULATIONS
AND AGENCY POLICY. EFFECTIVE DATE OF SEPARATION MAY BE CHANGED AND
ACCRUED LEAVE PAID.
TO MR. W. F. GRICE:
REFERENCE IS MADE TO A CLAIM BY MR. U. OWEN WALKER FOR CURRENT
ACCRUED ANNUAL LEAVE WHICH HAS BEEN TREATED AS FORFEITED AT THE TIME OF
HIS RESIGNATION, EFFECTIVE OCTOBER 23, 1970, AS AN EMPLOYEE OF THE
DEFENSE SUPPLY AGENCY. MR. WALKER'S CLAIM WAS THE SUBJECT OF YOUR
LETTER TO US OF MARCH 4, 1971, REFERENCE DDMT-CAF, AND OUR CLAIM
SETTLEMENT LETTER OF JUNE 8, 1971, DISALLOWING THE CLAIM.
BY LETTER DATED JUNE 21, 1971, MR. WALKER REITERATES HIS CONTENTION
MADE IN LETTER DATED NOVEMBER 14, 1970, THAT IT WAS HIS UNDERSTANDING
THAT HE WOULD WORK UNTIL OCTOBER 23, 1970, WITH THE EFFECTIVE DATE OF
HIS SEPARATION TO BE EXTENDED TO INCLUDE ANY UNUSED CURRENT YEAR ANNUAL
LEAVE. HE ALSO HAS SUBMITTED A STATEMENT FROM HIS FORMER MILITARY
SUPERVISOR, MAJOR LUTHER E. OSWALT, IN PERTINENT PART AS FOLLOWS:
"UPON RECEIPT OF HIS RESIGNATION ON 22 SEPTEMBER 1970 I REQUESTED MR.
U. OWEN WALKER TO WORK FULL TIME THROUGH 23 OCTOBER 1970 AND ACCEPT PAY
FOR ALL OF HIS LEAVE, IN LIEU OF TAKING LEAVE, INASMUCH AS OUR HEAVY
PROJECT WORKLOAD MADE THE USE OF HIS SERVICES AND EXPERTISE MANDATORY
SINCE WE COULD NOT HOPE TO HIRE AN EQUIVALENT TRAINED REPLACEMENT IN THE
FORESEEABLE FUTURE, AND THE RESTRICTIONS ON AND COSTS FOR OVERTIME BY
OTHER EXISTING PERSONNEL WOULD BE PROHIBITIVE AND UNECONOMICAL."
PARAGRAPH XV A 6 OF DDMT REGULATION NO. 1400.1, THE GOVERNING
ADMINISTRATIVE REGULATIONS, PROVIDES:
"LUMP SUM PAYMENT FOR ANNUAL LEAVE WILL BE MADE WHEN AN EMPLOYEE
DIES, RESIGNS OR IS SEPARATED FOR ONE OR MORE WORKDAYS, OR WHEN AN
EMPLOYEE WITH RESTORATION RIGHTS ENTERS ACTIVE MILITARY DUTY AND ELECTS
TO RECEIVE LUMP SUM PAYMENT. WHEN AN EMPLOYEE DIES, LUMP SUM PAYMENT
WILL BE MADE FOR THE ANNUAL LEAVE BALANCE OF RECORD. IN ALL OTHER
SEPARATION CASES, LUMP SUM PAYMENT MAY NOT EXCEED ANNUAL LEAVE BALANCE
(IF 30 DAYS OR LESS) OR THE AMOUNT SHOWN TO THE EMPLOYEE'S CREDIT AT THE
BEGINNING OF THE LEAVE YEAR, WHICHEVER IS GREATER. THE EFFECTIVE DATE
OF SEPARATION WILL BE EXTENDED TO INCLUDE ANY UNUSED CURRENT YEAR ANNUAL
LEAVE PLUS ANNUAL LEAVE ACCRUED WHILE ON SUCH EXTENSION, EXCEPT IN THE
CASE OF SEPARATION FOR MILITARY DUTY. PAYMENT FOR THE EXTENDED PERIOD
WILL BE MADE ON A PERIOD BASIS. IN THE CASE OF SEPARATION FOR MILITARY
DUTY, EXCESS LEAVE NOT INCLUDED IN LUMP-SUM PAYMENT WILL REMAIN IN THE
ACCOUNT WHICH WILL BE RE-ESTABLISHED UPON RESTORATION TO DUTY."
ALTHOUGH YOUR LETTER OF MARCH 4, 1971, STATES THAT THE REGULATIONS
QUOTED ABOVE RELATE TO SEPARATIONS INITIATED BY THE EMPLOYING ACTIVITY
AND DO NOT RELATE TO VOLUNTARY RESIGNATIONS, WE NOTE THAT SUCH PARAGRAPH
INCLUDES SEPARATION BY REASON OF DEATH AND RESIGNATION. SINCE THE
SEPARATION HERE INVOLVED WAS BY REASON OF RESIGNATION, WE MUST CONCLUDE
THAT THE REGULATIONS DO IN FACT APPLY. THE REGULATIONS PROVIDE THAT THE
SEPARATION DATE WILL BE EXTENDED TO INCLUDE CURRENT ACCRUED ANNUAL
LEAVE.
OUR OFFICE HAS LONG FOLLOWED THE RULE THAT WHEN AN AUTHORIZED
SEPARATION BECOMES AN ACCOMPLISHED FACT IT MAY NOT BE RESCINDED OR SET
ASIDE BY ADMINISTRATIVE ACTION. 32 COMP. GEN. 111 (1952). WE HAVE
RECOGNIZED EXCEPTIONS TO THAT RULE WHEN THE SEPARATION WAS NOT IN
CONFORMANCE WITH ESTABLISHED AGENCY PRACTICE OR APPLICABLE REGULATIONS
OR THE INTENT OF THE PARTIES. SEE B-172997, JUNE 23, 1971, COPY
ENCLOSED.
OUR REVIEW OF THE RECORD NOW BEFORE US LEADS US TO THE CONCLUSION
THAT MR. WALKER'S SEPARATION WAS NOT CONSISTENT WITH THE POLICY AS
STATED IN THE APPLICABLE REGULATIONS NOR IN ACCORDANCE WITH HIS
UNDERSTANDING AS TO THE PAYMENT FOR CURRENT ACCRUED ANNUAL LEAVE, AND
THEREFORE SUCH SEPARATION WAS INEFFECTIVE. ACCORDINGLY, WE WOULD NOT
OBJECT TO MR. WALKER'S RESTORATION TO THE ROLLS AND A CHANGE IN THE
EFFECTIVE DATE OF HIS SEPARATION FOR THE PURPOSE OF PERMITTING PAYMENT
OF THE ANNUAL LEAVE FOUND DUE, WITH ADVICE OF SUCH ACTION TO THE CIVIL
SERVICE COMMISSION FOR THE PURPOSE OF ADJUSTMENT OF HIS RETIREMENT
ACCOUNT. IN CONNECTION WITH THE AMOUNT OF LEAVE DUE, YOUR LETTER NOTES
THAT THE CORRECT AMOUNT OF LEAVE IN QUESTION IS 85 HOURS RATHER THAN THE
69 HOURS SHOWN IN THE CLAIM. MR. WALKER HAS BEEN FURNISHED A COPY OF
THIS LETTER.
B-157759, AUG 16, 1971
MILITARY PERSONNEL - CORRECTION OF MILITARY RECORDS - ACTIVE DUTY PAY -
PROMOTION IN RESERVE STATUS
DECISION DENYING CLAIM OF MAJOR DANTE S. REALE, USAF, RETIRED, FOR
ACTIVE DUTY PAY AS A MAJOR PURSUANT TO THE CORRECTION OF HIS MILITARY
RECORD BY THE AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS. AS
CORRECTED, THE RECORD SHOWS THAT CLAIMANT WAS PROMOTED TO THE GRADE OF
MAJOR, AIR FORCE RESERVE, ON APRIL 13, 1963, BUT WAS CREDITED WITH
ACTIVE DUTY SERVICE IN THE GRADE OF CAPTAIN UNTIL RETIREMENT ON AUGUST
1, 1969.
SECTION 8380(A), 10 U.S.C., PROVIDES THAT A RESERVE COMMISSIONED
OFFICER ON ACTIVE DUTY WHO IS PROMOTED TO A RESERVE GRADE THAT IS HIGHER
THAN HIS ACTIVE DUTY GRADE MAY NOT SERVE ON ACTIVE DUTY IN THAT RESERVE
GRADE UNLESS SPECIFICALLY ORDERED TO DO SO. SINCE THE RECORD CLEARLY
INDICATES THAT CLAIMANT WAS NEVER ORDERED TO SERVE ON ACTIVE DUTY IN THE
GRADE OF MAJOR, IT FOLLOWS THAT THERE IS NO BASIS FOR PAYMENT OF THE
CLAIM.
TO MAJOR DANTE S. REALE, USAF, RETIRED:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 27, 1971, AND LATER
CORRESPONDENCE, REQUESTING CONSIDERATION OF YOUR CLAIM FOR ACTIVE DUTY
PAY AS A MAJOR PURSUANT TO THE CORRECTION OF YOUR MILITARY RECORD BY THE
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS.
THE RECORD INDICATES THAT YOU SERVED ON ACTIVE DUTY IN THE U.S.
NAVAL RESERVE FROM SEPTEMBER 1942 UNTIL MARCH 1943 AND IN THE ARMY AIR
CORPS FROM JUNE 1943 UNTIL APRIL 1946, AT WHICH TIME YOU WERE APPOINTED
SECOND LIEUTENANT IN THE OFFICERS' RESERVE CORP (INACTIVE). YOU WERE
RECALLED TO ACTIVE DUTY IN THE AIR FORCE IN JUNE 1951 IN THE GRADE OF
SECOND LIEUTENANT AND SERVED CONTINUOUSLY ON ACTIVE DUTY UNTIL RELEASED
THEREFROM ON JULY 31, 1961, BY ORDERS DATED JULY 27, 1961.
IN DECISION OF JULY 16, 1969, IN REALE V UNITED STATES, 188 CT. CL.
586, THE UNITED STATES COURT OF CLAIMS HELD THAT SUCH RELEASE FROM
ACTIVE DUTY WAS ILLEGAL AND THAT YOU WERE ENTITLED TO ACTIVE DUTY PAY
AND ALLOWANCES FROM AUGUST 1, 1961, THROUGH JULY 16, 1969.
IN ITS FINDINGS OF FACT THE COURT OF CLAIMS STATED THAT YOU WERE
TEMPORARILY PROMOTED TO THE GRADE OF FIRST LIEUTENANT ON AUGUST 26,
1952, AND TO THE GRADE OF CAPTAIN ON MARCH 12, 1956, WHICH PROMOTIONS
WERE SUBSEQUENTLY MADE PERMANENT.
YOU SAY THAT ON MAY 26, 1970, THE ASSISTANT SECRETARY OF THE AIR
FORCE APPROVED THE RECOMMENDATIONS OF THE AIR FORCE BOARD FOR THE
CORRECTION OF MILITARY RECORDS THAT THE AIR FORCE RECORDS BE CORRECTED
TO SHOW THAT YOU WERE PROMOTED TO THE GRADE OF MAJOR, RESERVE OF THE AIR
FORCE, EFFECTIVE APRIL 13, 1963; THAT YOU WERE NOT RELEASED FROM ACTIVE
DUTY ON JULY 31, 1961, BUT WERE CONTINUED ON ACTIVE DUTY UNTIL JULY 31,
1969; AND THAT YOU WERE RETIRED IN THE GRADE OF MAJOR EFFECTIVE AUGUST
1, 1969.
YOU INDICATE THAT THE AIR FORCE REFUSES TO PAY YOU THE ACTIVE DUTY
PAY AND ALLOWANCES OF A MAJOR FOR THE PERIOD APRIL 13, 1963, THROUGH
JULY 31, 1969, ON THE GROUND THAT YOUR PROMOTION TO MAJOR WAS EFFECTED
IN THE AIR FORCE RESERVE AND THAT YOU DID NOT ACTUALLY SERVE ON ACTIVE
DUTY IN THE GRADE OF MAJOR. YOU SAY THAT UNDER THE PROVISIONS OF
SECTION 511 OF THE RESERVE OFFICERS PERSONNEL ACT OF 1954, 50 U.S.C.
1341 (WHICH ARE NOW CODIFIED IN 10 U.S.C. 8366 AND 8380), YOUR PROMOTION
TO MAJOR "WAS A MANDATORY PROMOTION - RESULTING FROM THE MAXIMUM TIME IN
GRADE A RESERVE CAPTAIN CAN HAVE WHILE ON ACTIVE DUTY."
YOU SAY THAT YOU DO NOT WISH TO PUT THE MATTER BEFORE THE COURT OF
CLAIMS IF YOU CAN AVOID IT, SINCE IT WOULD TAKE SEVERAL YEARS TO RESOLVE
AND THE COST INVOLVED WOULD CONSIDERABLY DIMINISH THE AMOUNT OF MONEY
YOU WOULD HAVE COMING TO YOU, AND YOU REQUEST THAT THIS OFFICE RESOLVE
THE MATTER AND ADVISE YOU ACCORDINGLY.
OUR DELAY IN ANSWERING YOUR INQUIRY WAS OCCASIONED BY OUR FAILURE TO
RECEIVE CERTAIN INFORMATION REQUESTED OF THE AIR FORCE. IT APPEARS,
HOWEVER, THAT WE CAN ANSWER YOUR INQUIRY ON THE BASIS OF INFORMATION
FURNISHED IN LATER CORRESPONDENCE RECEIVED FROM YOU IN ADDITION TO
INFORMATION RECEIVED FROM THE AIR FORCE BOARD FOR THE CORRECTION OF
MILITARY RECORDS.
THE AIR FORCE RECORDS WERE CORRECTED BY THE AIR FORCE BOARD FOR
CORRECTION OF MILITARY RECORDS TO SHOW THAT THE ORDERS OF JULY 27, 1961,
RELATING TO YOUR RELEASE FROM ACTIVE DUTY EFFECTIVE JULY 31, 1961, WERE
VOID; THAT YOU WERE NOT RELEASED FROM ACTIVE DUTY ON JULY 31, 1961, BUT
WERE CONTINUED ON ACTIVE DUTY UNTIL JULY 31, 1969; THAT YOU WERE
PROMOTED TO THE GRADE OF MAJOR, RESERVE OF THE AIR FORCE, EFFECTIVE
APRIL 13, 1963; AND THAT YOU WERE RETIRED IN THE GRADE OF MAJOR
EFFECTIVE AUGUST 1, 1969, UNDER THE PROVISIONS OF 10 U.S.C. 8911. THE
RECOMMENDATIONS OF THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY
RECORDS THAT SO MUCH OF YOUR APPLICATION AS RELATED TO "PROMOTION TO THE
TEMPORARY GRADE OF MAJOR; REINSTATEMENT ON EXTENDED ACTIVE DUTY
SUBSEQUENT TO THE DATE OF JULY 1969" BE DENIED WAS APPROVED BY THE
ASSISTANT SECRETARY OF THE AIR FORCE ON MAY 26, 1970.
BY LETTER OF JUNE 16, 1971, YOU SUBMITTED A COPY OF "RETIREMENT
ORDER" (AFPMC FORM 45) NO. AC-19800, DEPARTMENT OF THE AIR FORCE,
WASHINGTON, DATED JUNE 17, 1970, ISSUED PURSUANT TO YOUR RECORD
CORRECTION OF MAY 26, 1970, UNDER 10 U.S.C. 1552, SHOWING YOUR RELEASE
FROM ACTIVE DUTY TO BE JULY 31, 1969, THAT YOU WERE RETIRED EFFECTIVE
AUGUST 1, 1969, UNDER THE PROVISIONS OF 10 U.S.C. 8911, THAT YOU WERE
RETIRED IN THE GRADE OF MAJOR, AND THAT THE HIGHEST GRADE YOU HELD ON
ACTIVE DUTY WAS CAPTAIN.
SECTION 511 OF THE RESERVE OFFICERS PERSONNEL ACT OF 1954, 68 STAT.
1175, AS AMENDED BY SUBSECTION 4(H) OF THE ACT OF JUNE 30, 1955, 69
STAT. 220, AND AS CODIFIED IN 10 U.S.C. 8366(D) AND 8380 AND IN EFFECT
ON THE EFFECTIVE DATE OF YOUR PROMOTION TO MAJOR IN THE AIR FORCE
RESERVE, READS IN PERTINENT PART AS FOLLOWS:
10 U.S.C. 8366(D):
"(D) AN OFFICER WHOSE RESERVE GRADE IS FIRST LIEUTENANT, CAPTAIN, OR
MAJOR AND WHOSE NAME IS ON A RECOMMENDED LIST MAY BE PROMOTED AT ANY
TIME TO FILL A VACANCY, AND SHALL BE PROMOTED, WITHOUT REGARD TO THE
EXISTENCE OF A VACANCY, ON THE DATE ON WHICH HE COMPLETES THE SERVICE
PRESCRIBED IN SUBSECTION (A)."
10 U.S.C. 8380:
"(A) A RESERVE COMMISSIONED OFFICER ON ACTIVE DUTY (OTHER THAN FOR
TRAINING) WHO IS PROMOTED TO A RESERVE GRADE THAT IS HIGHER THAN THE
GRADE IN WHICH HE IS SERVING MAY NOT SERVE ON ACTIVE DUTY IN THE RESERVE
GRADE TO WHICH HE IS PROMOTED AND IS NOT ENTITLED TO THE RANK, PAY, OR
ALLOWANCES OF THAT HIGHER GRADE UNLESS HE IS ORDERED TO SERVE ON ACTIVE
DUTY IN THAT HIGHER GRADE OR IS TEMPORARILY PROMOTED TO THAT HIGHER
GRADE.
"(B) A RESERVE COMMISSIONED OFFICER ON ACTIVE DUTY (OTHER THAN FOR
TRAINING) WHO IS PROMOTED TO A RESERVE GRADE THAT IS HIGHER THAN THE
GRADE IN WHICH HE IS SERVING CONTINUES TO SERVE ON ACTIVE DUTY IN THE
GRADE IN WHICH HE WAS SERVING IMMEDIATELY BEFORE THAT PROMOTION, AND HE
MAY BE APPOINTED IN A TEMPORARY GRADE THAT IS EQUAL TO THE GRADE IN
WHICH HE WAS SERVING BEFORE THAT PROMOTION. *** "
IT WILL BE SEEN THAT, IN THE ABSENCE OF ORDERS DIRECTING YOU TO
PERFORM ACTIVE DUTY IN THE GRADE OF MAJOR OR ORDERS PROMOTING YOU TO THE
TEMPORARY GRADE OF MAJOR, YOU ARE NOT ENTITLED TO THE ACTIVE DUTY PAY
AND ALLOWANCES OF A MAJOR. YOU WERE NOT IN FACT ORDERED TO PERFORM
ACTIVE DUTY IN THE GRADE OF MAJOR AND YOUR MILITARY RECORDS WERE NOT
CORRECTED TO SHOW THAT YOU WERE ORDERED TO PERFORM ACTIVE DUTY IN THAT
GRADE OR THAT YOU WERE PROMOTED TO THE TEMPORARY GRADE OF MAJOR. ON THE
CONTRARY, YOUR RETIREMENT ORDERS PREPARED PURSUANT TO THE PROVISIONS OF
10 U.S.C. 1552, GOVERNING THE CORRECTION OF MILITARY RECORDS, EXPRESSLY
STATE THAT THE HIGHEST GRADE HELD BY YOU ON ACTIVE DUTY WAS THE GRADE OF
CAPTAIN.
ACCORDINGLY, IT IS OUR OPINION THAT YOU ARE NOT ENTITLED UNDER YOUR
MILITARY RECORD AS CORRECTED TO THE ACTIVE DUTY PAY AND ALLOWANCES OF
MAJOR DURING ANY PART OF THE PERIOD FROM APRIL 13, 1963, THROUGH JULY
31, 1969.
B-161618, AUG 16, 1971
TERMINAL CHARGES - SOUTHWESTERN MOTOR FREIGHT BUREAU RULES TARIFF NO.
15-SERIES
DECISION NOTIFYING STRICKLAND TRANSPORTATION COMPANY THAT
TRANSPORTATION DIVISION WILL CONTINUE ATTEMPTS TO RECOVER REFUNDS OF A
TERMINAL CHARGE THAT IS BEING ASSESSED ON SHIPMENTS AT THE GULF OUTPORT
(U.S. ARMY TERMINAL) NEW ORLEANS, LOUISIANA.
FROM THE EXAMINATION OF THE HISTORY OF ITEM 1110 OF SOUTHWESTERN
MOTOR FREIGHT BUREAU RULES TARIFF NO. 15-SERIES, IT IS APPARENT THAT THE
CHARGES ARE NOT APPLICABLE TO DELIVERIES MADE AT THE NEW ORLEANS
MILITARY INSTALLATIONS. AN ATTEMPT TO INCLUDE THESE TERMINALS IN THE
COVERAGE OF ITEM 1110 WAS WITHDRAWN AT THE REQUEST OF THE DEPARTMENT OF
DEFENSE.
TO MR. OSCAR P. PECK:
WE REFER TO YOUR LETTER OF MARCH 17, 1971, AND TO LETTERS FROM MR.
R. V. SMITH, MANAGER OVERCHARGE CLAIMS, CONCERNING OUR TRANSPORTATION
DIVISION'S REQUESTS FOR REFUND OF A TERMINAL CHARGE OF 11 CENTS PER 100
POUNDS THAT IS BEING ASSESSED ON SHIPMENTS, BOTH TRUCKLOAD AND LESS
TRUCKLOAD, DELIVERED AT THE GULF OUTPORT (U.S. ARMY TERMINAL) AT NEW
ORLEANS, LOUISIANA.
THE BASIS OF THE REFUND REQUESTS OF THE 11-CENT CHARGE IS THAT ITEM
1110 OF SOUTHWESTERN MOTOR FREIGHT BUREAU RULES TARIFF NO. 15-SERIES,
NAMING THIS CHARGE, IS NOT APPLICABLE TO DELIVERIES MADE AT THE U.S.
ARMY TERMINAL OR OTHER MILITARY INSTALLATIONS AT NEW ORLEANS. YOUR
REASON FOR DECLINING TO MAKE THESE REFUNDS, AS STATED IN YOUR LETTER OF
MARCH 17, 1971, IS THAT ITEM 1110 COVERS ALL PIERS, WHARVES OR DOCKS AT
NEW ORLEANS, AND THAT IT IS NOT NECESSARY THAT THE MILITARY
INSTALLATIONS BE SPECIFICALLY NAMED. MR. SMITH'S LETTERS STATE THAT
YOUR COMPANY PERFORMS CERTAIN SERVICES, SUCH AS UNLOADING, WAITING FOR
SPOTTING DESIGNATIONS, WAITING TIME, ETC., AND THAT THOSE SERVICES
ENTITLE YOU TO THE 11-CENT CHARGE.
WE ARE OF THE OPINION THAT THE 11-CENT TERMINAL CHARGE AT NEW
ORLEANS, LOUISIANA, IS NOT APPLICABLE AT THE U.S. ARMY TERMINAL AND THE
OTHER MILITARY INSTALLATIONS. WE TAKE THIS VIEW BECAUSE IT IS CLEAR
THAT THIS ITEM APPLIES ONLY WHERE TERMINAL SERVICES OTHER THAN THOSE
NORMALLY INCLUDED IN THE LINE-HAUL RATE ARE PERFORMED. THAT SUCH
SERVICES ARE NOT PERFORMED AT THE MILITARY TERMINALS IS EVIDENCED BY THE
FACT THAT YOUR TARIFF PUBLISHING AGENT ADDED TO ITEM 1110 THE NAMES OF
THE SEVERAL MILITARY TERMINALS, BUT UPON OBJECTION BY THE DEPARTMENT OF
DEFENSE WHICH FILED A PETITION WITH THE INTERSTATE COMMERCE COMMISSION
ASKING THAT THE PROPOSED ADDITION BE SUSPENDED, IT WAS CANCELLED
VOLUNTARILY.
TO UNDERSTAND OUR POSITION AS TO THE EXCLUSION OF THE MILITARY
TERMINALS IT IS NECESSARY TO REFER TO SEVERAL CANCELLED ISSUES OF TARIFF
NO. 15. ITEM 1110, NAMING THE TERMINAL CHARGE OF 11 CENTS PER 100
POUNDS, WAS FIRST EFFECTIVE NOVEMBER 2, 1968, IN SUPPLEMENT NO. 3 TO
TARIFF NO. 15-Q. THIS ITEM STATED IN THE SECOND PARAGRAPH THAT THE TERM
"PIERS" OR "WHARVES" INCLUDED THE GULF OUTPORTS NAVAL SUPPLY ACTIVITY,
GULF OUTPORTS PANAMA CANAL COMPANY AND THE NAVAL SUPPLY ACTIVITY. THE
TERMS "PIERS" AND "WHARVES" DID NOT INCLUDE AT THAT TIME THE U.S. ARMY
TERMINAL. SUPPLEMENT NO. 5 TO THE TARIFF POSTPONED THE EFFECTIVE DATE
OF ITEM 1110 TO NOVEMBER 19, 1968.
ON APRIL 15, 1969, ITEM 1110, HAVING BECOME EFFECTIVE ON NOVEMBER 19,
1968, WAS REISSUED IN TARIFF NO. 15-R. IN THIS ITEM, REFERENCE IS NOT
MADE TO THE TERMS "PIERS" AND "WHARVES" AS INCLUDING THE THREE MILITARY
OR NAVAL INSTALLATIONS. IN OUR VIEW THE DELIBERATE OMISSION OF THE
REFERENCE MEANS THAT THE PROVISIONS OF ITEM 1110 NO LONGER APPLIED TO
THOSE INSTALLATIONS.
THAT ITEM 1110, AS IT READ WHEN REISSUED ON APRIL 15, 1969, DID NOT
APPLY TO MILITARY INSTALLATIONS, INCLUDING THE U.S. ARMY TERMINAL, IS
ESTABLISHED BY THE PUBLICATION OF ITEM 1110-C, EFFECTIVE SEPTEMBER 11,
1969, IN SUPPLEMENT NO. 12 TO TARIFF NO. 15-R. IN THAT ITEM A "NOTE 1,"
PRECEDED BY AN INCREASE REFERENCE MARK, WAS ADDED. NOTE 1 STATES THAT
"PIERS, WHARVES OR DOCKS" AT NEW ORLEANS WILL INCLUDE THE THREE MILITARY
INSTALLATIONS FORMERLY NAMED IN ITEM 1110 OF TARIFF NO. 15-Q, PLUS THE
U.S. ARMY TERMINAL. THE FACT THAT THIS ITEM IS REFERENCED AS AN
INCREASE CLEARLY SHOWS AN INTENTION TO ASSESS THE 11-CENT TERMINAL
CHARGE AT THE U.S. ARMY TERMINAL FOR THE FIRST TIME WITH THE EFFECTIVE
DATE OF THAT ITEM.
AS INDICATED, UPON PETITION BY THE DEPARTMENT OF DEFENSE, THE
INTERSTATE COMMERCE COMMISSION, IN I. & S. DOCKET NO. M-23351, SUSPENDED
THE EFFECTIVE DATE OF ITEM NO. 1110-C, AND SUPPLEMENT NO. 14 TO TARIFF
NO. 15-R, POSTPONED THE EFFECTIVE DATE OF THE ITEM UNTIL APRIL 2, 1970.
THE DEPARTMENT OF DEFENSE PETITION STATED ON PAGE 3 AS FOLLOWS:
"AT THE PRESENT TIME ALL PERTINENT TERMINAL SERVICES AT U.S. ARMY
TERMINAL, NAVAL SUPPLY ACTIVITY, GULF OUTPORTS NAVAL SUPPLY ACTIVITY AND
GULF OUTPORTS PANAMA CANAL COMPANY ARE NOT PERFORMED BY THE MOTOR
CARRIER. IN FACT EACH OF THE GOVERNMENT ACTIVITIES DESCRIBED, PERFORM
THEIR OWN TERMINAL SERVICES WITHOUT ALLOWANCE BY THE CARRIER. SUCH
TERMINAL SERVICES CONSIST OF ABSORPTIONS, ASSEMBLING, CARTAGE,
DISTRIBUTING, LOADING, MARKING, SORTING, TAGGING, TRANSIT PRIVILEGES,
AND UNLOADING. SEE ITEM 770 SOUTHWESTERN MOTOR TARIFF 15-R, ICC NO. 10.
"BY ENACTMENT OF ITEM 1110-C, PARTICULARLY NOTE 1, THE GOVERNMENT,
THROUGH THE NAMED ACTIVITIES, WOULD BE FORCED TO PAY THE TERMINAL
CHARGES ALTHOUGH SUCH SERVICES ARE NOT PERFORMED BY THE CARRIER.
SECTION 216 OF THE INTERSTATE COMMERCE ACT PRECLUDES A CARRIER FROM
CHARGING FOR A SERVICE NOT RENDERED OR TO BE RENDERED. CLEARLY, THE
IMPOSITION OF CHARGES IN THESE CIRCUMSTANCES WOULD BE UNJUST AND
UNREASONABLE AND DISCRIMINATORY, CONTRARY TO SECTION 216(B) AND (D) OF
THE ACT.
THE ITEM SHOULD BE SUSPENDED AND FOUND UNLAWFUL."
IF, AS YOU CONTEND, THE CARRIERS PARTIES TO THIS PUBLICATION
PERFORMED A SERVICE AT THE MILITARY INSTALLATIONS THAT JUSTIFIED THE
IMPOSITION OF THIS CHARGE, IT IS NOT APPARENT AS TO WHY YOUR PUBLISHING
AGENT ISSUED SUPPLEMENT NO. 15 TO TARIFF NO. 15-R, EFFECTIVE OCTOBER 10,
1969, CANCELLING NOTE 1, AND LEAVING ITEM 1110-C AS IT WAS IN EFFECT
PRIOR TO SEPTEMBER 11, 1969. OBVIOUSLY, SINCE THE PURPOSE OF THE
ADDITION OF NOTE 1 TO ITEM 1110-C WAS TO MAKE ITS PROVISIONS
SPECIFICALLY APPLICABLE TO U.S. ARMY TERMINAL AND THE OTHER NAMED
MILITARY OR NAVAL ACTIVITIES, THE REMOVAL OF NOTE 1 RESULTS IN THE
ELIMINATION OF THE 11-CENT CHARGE IN CONNECTION WITH PROPERTY DELIVERED
TO THOSE INSTALLATIONS.
IN THE CIRCUMSTANCES, WE BELIEVE THAT THE 11-CENT CHARGE NAMED IN
ITEM 1110-SERIES IS NOT APPLICABLE TO DELIVERIES MADE BY YOUR COMPANY AT
THE GOVERNMENT INSTALLATIONS, INCLUDING THE U.S. ARMY TERMINAL, NAMED
IN AND WITHDRAWN FROM THE ITEM NO. 1110-C. WE ARE THEREFORE INSTRUCTING
OUR TRANSPORTATION DIVISION TO PROCEED WITH THE COLLECTION OF THE
OVERCHARGES WHICH YOU WERE REQUESTED TO REFUND.
B-170730, AUG 16, 1971
CIVILIAN EMPLOYEE - LEAVE STATUS - ADMINISTRATIVE FINDINGS DETERMINATIVE
SUSTAINING THE DENIAL BY CLAIMS DIVISION OF A CLAIM BY EDWARD J.
O'BRIEN FOR SALARY FOR THE PERIOD MARCH 27 THROUGH APRIL 13, 1970. THE
CLAIM IS BASED ON THE BELIEF THAT CLAIMANT SHOULD HAVE BEEN ON THE ROLLS
OF THE FEDERAL AVIATION ADMINISTRATION IN A SICK LEAVE STATUS RATHER
THAN AS ABSENT WITHOUT LEAVE.
THE DETERMINATION OF AN EMPLOYEE'S LEAVE STATUS IS A MATTER PRIMARILY
WITHIN THE JURISDICTION AND DESCRETION OF THE ADMINISTRATIVE OFFICE
CONCERNED. GAO IS WITHOUT AUTHORITY TO GRANT SUCH LEAVE OR AUTHORIZE
PAYMENT CONTRARY TO THAT DENIED ADMINISTRATIVELY UNLESS IT CAN BE SHOWN
THAT THE ACTION WAS ARBITRARY OR CAPRICIOUS.
TO MR. EDWARD J. O'BRIEN:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 31, 1971, IN WHICH YOU
REQUEST RECONSIDERATION OF THE ACTION OF OUR CLAIMS DIVISION OF JANUARY
7, 1971, DISALLOWING YOUR CLAIM FOR SALARY FOR THE PERIOD MARCH 27
THROUGH APRIL 13, 1970. YOUR CLAIM IS BASED ON YOUR BELIEF THAT, DURING
THE PERIOD IN QUESTION, YOU SHOULD HAVE BEEN CARRIED ON THE ROLLS OF THE
FEDERAL AVIATION ADMINISTRATION (FAA) IN SICK LEAVE STATUS RATHER THAN
AS ABSENT WITHOUT LEAVE.
THE RECORD SHOWS THAT YOU WERE ABSENT FROM YOUR POSITION AS AN AIR
TRAFFIC CONTROLLER BECAUSE THE PHYSICIAN, DESIGNATED BY THE FAA TO
EXAMINE AIR TRAFFIC CONTROLLERS FOR PHYSICAL FITNESS, HAD PRESCRIBED
CERTAIN DRUGS WHICH ARE, BY FAA REGULATIONS, DETERMINED TO BE
INCAPACITATING FOR TRAFFIC CONTROL DUTY.
OUR CLAIMS DIVISION SETTLEMENT NOTED THAT, ALTHOUGH THE REGULATIONS
DO NOT ALLOW PERFORMANCE OF AIR TRAFFIC CONTROL DUTY WHILE BEING TREATED
WITH THE DRUGS IN QUESTION, PROVISION IS MADE FOR REASSIGNMENT TO OTHER
DUTIES DURING A TEMPORARY PERIOD OF DISABILITY AS A CONTROLLER. YOUR
LETTER, SUPPORTED BY AN ENCLOSED DIRECTIVE OF THE WASHINGTON AIR ROUTE
TRAFFIC CONTROL CENTER, EXPLAINS YOUR CONTENTION THAT YOU WERE ENTIRELY
IN COMPLIANCE WITH THE REGULATIONS SINCE YOU REPORTED YOUR CONDITION TO
THE APPROPRIATE ADMINISTRATIVE OFFICIAL WHO FAILED TO SUGGEST THE
POSSIBILITY OF REASSIGNMENT TO OTHER DUTIES. IN THAT REGARD, WE HAVE
BEEN INFORMALLY ADVISED BY THE FAA THAT, AS A PRACTICAL MATTER, NO
ADMINISTRATIVE OR OTHER DUTIES EXISTED AT THAT TIME TO WHICH YOU COULD
HAVE BEEN REASSIGNED.
YOUR REQUEST FOR SICK LEAVE WAS DENIED AND YOU WERE PLACED IN AWOL
STATUS ADMINISTRATIVELY. FOLLOWING NOTICE OF A PROPOSED SUSPENSION FOR
THE SAME NUMBER OF DAYS YOU WERE DETERMINED TO BE AWOL, WHICH YOU WERE
GIVEN AN OPPORTUNITY TO ANSWER, THE WASHINGTON AREA OFFICE OF FAA ISSUED
A DECISION DATED JUNE 10, 1970, TO SUSPEND YOU, A DECISION WHICH WE
UNDERSTAND YOU DID NOT APPEAL. THE DECISION TO SUSPEND WAS BASED UPON A
REVIEW BY THE REGIONAL FLIGHT SURGEON OF MEDICAL EVIDENCE YOU SUBMITTED
IN SUPPORT OF YOUR APPLICATION FOR SICK LEAVE WHICH RESULTED IN A
FINDING THAT THE EVIDENCE WAS INSUFFICIENT TO JUSTIFY ABSENCE IN SICK
LEAVE STATUS.
AS INDICATED IN THE SETTLEMENT OF OUR CLAIMS DIVISION THE
DETERMINATION OF THE STATUS OF AN EMPLOYEE AS BEING ON SICK LEAVE OR
ABSENT WITHOUT LEAVE IS A MATTER PRIMARILY WITHIN THE JURISDICTION AND
DISCRETION OF THE ADMINISTRATIVE OFFICE CONCERNED. WHEN SICK LEAVE IS
REFUSED OR AN EMPLOYEE IS PLACED IN ABSENCE-WITHOUT-LEAVE STATUS BY
ADMINISTRATIVE ACTION, IT HAS BEEN CONSISTENTLY HELD THAT GENERALLY THIS
OFFICE IS WITHOUT AUTHORITY TO GRANT SUCH LEAVE OR AUTHORIZE PAYMENT
CONTRARY TO THAT DENIED ADMINISTRATIVELY.
WE ARE AWARE OF THE UNPRECEDENTED AND EMERGENT CONDITIONS WHICH
CONFRONTED THE FAA DURING THE PERIOD OF YOUR ABSENCE. WE ARE INFORMED
THAT BETWEEN MARCH 25, 1970, AND MID-APRIL APPROXIMATELY 3,000 AIR
TRAFFIC CONTROLLERS REPORTED THEMSELVES AS DISABLED FOR DUTY, INCREASING
THE RATE OF ABSENTEEISM FOR THESE EMPLOYEES FROM A NORMAL RATE OF 4
PERCENT AVERAGE TO RATES UP TO 20 TIMES THE NORMAL RATE. SINCE YOUR
ABSENCE COINCIDED WITH THE TIME OF THIS EMERGENCY AND BECAUSE OF OTHER
FACTORS PREVIOUSLY MENTIONED, WE DO NOT BELIEVE THE ACTION OF THE AGENCY
IN DETERMINING YOUR STATUS TO BE THAT OF ABSENT WITHOUT LEAVE CAN BE
FOUND TO BE ARBITRARY AND CAPRICIOUS. RATHER, THE DENIAL OF SICK LEAVE
IS SUPPORTED BY THE SUSPENSION ACTION OF THE AGENCY IN YOUR CASE WHICH
WAS PREDICATED ON ABSENCE WITHOUT LEAVE DURING THE SAME PERIOD OF TIME
FOR WHICH SICK LEAVE IS CLAIMED.
IT IS OUR CONCLUSION THAT THE ACTION OF OUR CLAIMS DIVISION WAS
CORRECT AND MUST HEREBY BE AFFIRMED.
B-172751, AUG 16, 1971
CIVILIAN EMPLOYEE - TRANSPORTATION AGREEMENT INCIDENT TO TRANSFER -
INVOLUNTARY SEPARATION
DECISION LEAVING FOR ADMINISTRATIVE DETERMINATION THE QUESTION AS TO
WHETHER ORVILLE S. NORDVOLD, A FORMER EMPLOYEE OF THE CONSUMER AND
MARKETING SERVICE, MAY BE GRANTED A WAIVER OF HIS INDEBTEDNESS FOR
RELOCATION EXPENSES.
THE TRANSPORTATION AGREEMENT CONTAINED THE INVOLUNTARY SEPARATION
CLAUSE WHICH HAS RECENTLY BEEN INTERPRETED BY THE COURTS AND THE CIVIL
SERVICE COMMISSION TO INCLUDE THE SITUATION WHERE AN EMPLOYEE IS
TERMINATED FOLLOWING HIS REFUSAL TO ACCEPT A TRANSFER TO A NEW COMMUTING
AREA. THE DETERMINATION AS TO WHETHER A SEPARATION IS INVOLUNTARY
WITHIN THIS INTERPRETATION LIES WITH THE ADMINISTRATIVE AGENCY.
TO MR. J. A. ALEXANDER:
REFERENCE IS MADE TO YOUR LETTER DATED MAY 17, 1971, IN WHICH YOU ASK
FOR OUR DECISION ON THE REQUEST OF MR. ORVILLE S. NORDVOLD, A FORMER
EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE, CONSUMER AND MARKETING
SERVICE, FOR WAIVER OF HIS INDEBTEDNESS FOR RELOCATION EXPENSES UNDER
THE CIRCUMSTANCES HEREINAFTER RELATED.
THE RECORD INDICATES THAT MR. NORDVOLD'S PERMANENT DUTY STATION WAS
CHANGED FROM ALBERT LEA, MINNESOTA, TO COLEMAN, WISCONSIN, ON FEBRUARY
8, 1970. ON MAY 13, 1970, ANOTHER PERMANENT CHANGE OF STATION WAS
AUTHORIZED FROM COLEMAN, WISCONSIN, TO RIPON, WISCONSIN. HE WAS
AUTHORIZED ALLOWANCES FOR THE TRAVEL OF HIMSELF AND HIS FAMILY,
TRANSPORTATION OF HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS, AS WELL AS
FOR TEMPORARY QUARTERS, AND EXECUTED A SERVICE AGREEMENT AS REQUIRED BY
5 U.S.C. 5724(I). THE AGREEMENT OBLIGATED HIM "TO REMAIN IN THE
GOVERNMENT SERVICE FOR 12 MONTHS FOLLOWING THE EFFECTIVE DATE OF MY
TRANSFER ON OR ABOUT MAY 20, 1970, UNLESS SEPARATED FOR REASONS BEYOND
MY CONTROL AND ACCEPTABLE TO C&MS." SUCH AGREEMENT ALSO PROVIDED THAT IF
HE VIOLATED THE SAME HE WOULD REPAY TO THE GOVERNMENT AN AMOUNT "EQUAL
TO THE AMOUNT EXPENDED BY THE GOVERNMENT FOR TRAVEL, TRANSPORTATION AND
OTHER ALLOWANCES CONNECTED WITH THIS TRANSFER *** ." WE ASSUME THAT HE
SIGNED A SIMILAR AGREEMENT IN CONNECTION WITH HIS PRIOR TRANSFER FROM
ALBERT LEA, MINNESOTA, TO COLEMAN, WISCONSIN, AND ALSO WAS HELD LIABLE
FOR ANY EXPENSES REIMBURSED TO HIM IN CONNECTION WITH THAT TRANSFER.
IN NOVEMBER 1970 THE CONSUMER AND MARKETING SERVICE DECIDED THAT MR.
NORDVOLD'S SERVICES WERE NO LONGER NEEDED IN RIPON, WISCONSIN, AND THAT
HE COULD BE BETTER UTILIZED IN FLORIDA. MR. NORDVOLD WHO HAD BOUGHT A
HOUSE IN COLEMAN (POUND) AND ANOTHER IN RIPON INCIDENT TO HIS TRANSFERS
REFUSED TO MAKE ANOTHER MOVE AND, WHEN ORDERED TO DO SO, RESIGNED ON
NOVEMBER 24, 1970. THEREAFTER THERE WAS APPARENTLY WITHHELD FROM HIS
FINAL SALARY AND LEAVE PAYMENTS AN AMOUNT TO COMPENSATE THE GOVERNMENT
FOR THE EXPENDITURES IT MADE IN CONNECTION WITH HIS TRANSFERS BECAUSE HE
HAD NOT REMAINED IN THE GOVERNMENT SERVICE FOR 12 MONTHS AS AGREED.
THE RECORD INDICATES THAT MR. NORDVOLD'S REQUEST FOR WAIVER WAS
DENIED BY ADMINISTRATIVE ACTION OF YOUR AGENCY BECAUSE OF CERTAIN OF OUR
DECISIONS IN THIS AREA. IN VIEW THEREOF YOU HAVE REFERRED THE MATTER
HERE FOR OUR CONSIDERATION.
WE NOTE THAT THE RECORD CONTAINS A STATEMENT BY MR. NORDVOLD'S
REGIONAL SUPERVISOR, PPS&I BRANCH, FRUIT AND VEGETABLE DIVISION, TO THE
EFFECT THAT IN ORDERING MR. NORDVOLD TO FLORIDA THE CONSUMER AND
MARKETING SERVICE HAD VIRTUALLY TERMINATED HIS SERVICES IN RIPON,
WISCONSIN. UNDER THESE CIRCUMSTANCES A QUESTION ARISES OF WHETHER OR
NOT THE FACTS SURROUNDING MR. NORDVOLD'S RESIGNATION PROVIDE SUFFICIENT
BASIS FOR A FINDING THAT HE WAS SEPARATED FROM THE SERVICE FOR REASONS
BEYOND HIS CONTROL AND ACCEPTABLE TO THE CONSUMER AND MARKETING SERVICE.
WE HAVE PREVIOUSLY HELD THAT SUCH DETERMINATION RESTS PRIMARILY WITH
THE AGENCY CONCERNED. SEE B-170392, AUGUST 5, 1970, COPY ENCLOSED.
RECENT DECISIONS IN THE UNITED STATES COURT OF CLAIMS (PATTERSON V
UNITED STATES, 436 F. 2D 438 (1971) AND PAULEY V UNITED STATES, 440 F.
2D 426 (1971)), HAVE PROMPTED THE UNITED STATES CIVIL SERVICE COMMISSION
TO AMEND ITS REGULATIONS TO THE EFFECT THAT THE REFUSAL OF AN EMPLOYEE
TO ACCEPT AN ASSIGNMENT TO ANOTHER COMMUTING AREA IS AN INVOLUNTARY
SEPARATION FOR THE PURPOSE OF SEVERANCE PAY OR DISCONTINUED SERVICE
ANNUITY, UNLESS THE EMPLOYEE'S POSITION DESCRIPTION OR OTHER WRITTEN
AGREEMENT OR UNDERSTANDING PROVIDES FOR SUCH REASSIGNMENTS.
SIMILARLY, WE HAVE NO OBJECTION TO YOUR AGENCY DETERMINING THAT MR.
NORDVOLD'S REFUSAL OF THE REASSIGNMENT TO FLORIDA WAS FOR REASONS BEYOND
HIS CONTROL AND ACCEPTABLE TO YOUR AGENCY ASSUMING, OF COURSE, THAT HIS
POSITION DESCRIPTION DID NOT PROVIDE FOR REASSIGNMENT TO OTHER AREAS OR
THAT HE HAD NOT OTHERWISE AGREED TO SUCH REASSIGNMENTS.
FOR A FULL DISCUSSION OF THE AMENDMENTS TO THE UNITED STATES CIVIL
SERVICE COMMISSION'S REGULATIONS CONCERNING INVOLUNTARY SEPARATION AND
ENTITLEMENT TO SEVERANCE PAY AND DISCONTINUED SERVICE ANNUITY, SEE FPM
LETTER NO. 550-59 AND 36 F.R. 12729.
IF THE WAIVER IS GRANTED AND PAYMENT IS MADE TO THE EMPLOYEE FOR HIS
FINAL SALARY AND LEAVE IT IS REQUESTED THAT CONGRESSMAN WILLIAM A.
STEIGER BE ADVISED TO THAT EFFECT.
B-172841, AUG 16, 1971
MILITARY PERSONNEL - TEMPORARY LODGING ALLOWANCE-MERITORIOUS CLAIMS ACT
DENIAL OF CLAIM BY MASTER SERGEANT LYLE D. EVANS, USAF, FOR
$1,563.45, REPRESENTING THE DIFFERENCE BETWEEN THE TEMPORARY LODGING
ALLOWANCE PAID TO HIM, AND THE TOTAL COST OF LIVING EXPENSES FOR
CLAIMANT AND DEPENDENTS, INCIDENT TO A CHANGE OF PERMANENT STATION TO
HONG KONG, BRITISH CROWN COLONY. THE CLAIM WAS REFERRED TO GAO FOR
CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT.
SINCE THE AIR FORCE APPLIED THE CORRECT REGULATIONS IN A PROPER
MANNER, THERE IS NO BASIS FOR REVERSING THEIR SETTLEMENT. A CLAIM MAY
BE SUBMITTED TO CONGRESS UNDER THE MERITORIOUS CLAIMS ACT WHEN, IN THE
COMP. GEN.'S JUDGEMENT, IT CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR
EQUITY AS TO DESERVE SUCH CONSIDERATION. THERE IS NOTHING IN THIS CASE
OF SUCH A NATURE AS TO WARRANT SUCH CONSIDERATION.
TO MASTER SERGEANT LYLE D. EVANS, USAF:
WE AGAIN REFER TO YOUR CLAIM FOR THE SUM OF $1,563.45, REPRESENTING
THE DIFFERENCE BETWEEN THE TEMPORARY LODGING ALLOWANCE PAID TO YOU FOR
THE PERIOD AUGUST 1 TO OCTOBER 16, 1970, AND THE TOTAL COST OF LIVING
EXPENSES FOR YOURSELF AND DEPENDENTS FOR THAT PERIOD INCIDENT TO A
CHANGE OF PERMANENT STATION TO HONG KONG, BRITISH CROWN COLONY. THE
CLAIM WAS REFERRED TO THIS OFFICE BY THE DEPARTMENT OF THE AIR FORCE,
AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, FOR
CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236.
THE RECORD SHOWS THAT BY ORDERS DATED JULY 2, 1970, YOUR PERMANENT
DUTY STATION WAS CHANGED FROM SCOTT AIR FORCE BASE, ILLINOIS, TO OFFICE
OF LIAISON, 7TH AIR FORCE (PACAF), HONG KONG, WITH THE REPORTING DATE
SHOWN AS JULY 30, 1970. THOSE ORDERS AUTHORIZED CONCURRENT TRAVEL OF
YOUR DEPENDENTS (WIFE AND 3 MINOR CHILDREN).
THE RECORD FURTHER SHOWS THAT AFTER ARRIVAL IN HONG KONG, YOU
EXPERIENCED DIFFICULTY IN FINDING ADEQUATE FAMILY HOUSING AS GOVERNMENT
QUARTERS AND MESS WERE THEN NOT AVAILABLE. SINCE REASONABLY PRICED
LEASED HOUSING WAS UNOBTAINABLE YOU AND YOUR DEPENDENTS UTILIZED HOTEL
ACCOMMODATIONS DURING THE PERIOD AUGUST 1 TO OCTOBER 16, 1970. IN THIS
CONNECTION THE RECORD FURTHER SHOWS THAT ON AUGUST 14, 1970, YOU WROTE
TO CINCPACAF (DCEPE) APO SAN FRANCISCO 96553, STATING THAT LEASED
HOUSING COULD NOT BE OBTAINED WITHIN THE MAXIMUM ALLOWABLE HOUSING COST
FOR A MASTER SERGEANT IN THE HONG KONG AREA ($327.90) AND THAT
INVESTIGATIONS INDICATED THAT A LIMITED NUMBER OF THREE-BEDROOM
APARTMENTS COULD BE LEASED FOR $395 TO $415 PER MONTH, PLUS UTILITIES.
THEREAFTER THE AIR FORCE MADE ARRANGEMENTS FOR AND PROCURED FOR YOU A
THREE-BEDROOM APARTMENT UNDER A 3-YEAR LEASE, EFFECTIVE OCTOBER 16,
1970.
BASED ON A CERTIFICATION BY THE COMMANDER, 6250TH SUPPORT SQUADRON,
THAT GOVERNMENT QUARTERS AND MESSING FACILITIES WERE UNAVAILABLE, THAT
YOU WERE ACCOMPANIED BY YOUR DEPENDENTS, AND THAT THE COST OF LIVING IN
HONG KONG WAS HIGHER THAN NORMAL ENTITLEMENTS, YOU WERE PAID TEMPORARY
LODGING ALLOWANCES (WITH DEPENDENTS) IN THE AGGREGATE AMOUNT OF
$3,293.50 FOR THE PERIOD AUGUST 1 TO OCTOBER 16, 1970 (175 PERCENT OF
RATE OF $20 FOR PERIOD AUGUST 1 TO 20, 1970 ($700), AND 175 PERCENT OF
RATE OF $26 FOR PERIOD AUGUST 21 TO OCTOBER 16, 1970 ($2,593.50)).
BY YOUR LETTER DATED OCTOBER 19, 1970, TO THE 7TH AIR FORCE, APO
96307, YOU PRESENTED A CLAIM FOR THE AMOUNT OF $1,563.45, REPRESENTING
THE DIFFERENCE BETWEEN THE ACTUAL LIVING EXPENSES PAID BY YOU DURING THE
77-DAY PERIOD INVOLVED AS SET FORTH IN YOUR ITEMIZED STATEMENT AND THE
TEMPORARY LODGING ALLOWANCE RECEIVED BY YOU.
THE PERTINENT STATUTE, 37 U.S.C. 405, PROVIDES THAT THE SECRETARIES
CONCERNED MAY AUTHORIZE THE PAYMENT OF A PER DIEM, CONSIDERING ALL
ELEMENTS OF THE COST OF LIVING TO MEMBERS OF THE UNIFORMED SERVICES
UNDER THEIR JURISDICTION AND THEIR DEPENDENTS INCLUDING THE COST OF
QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES, TO SUCH
A MEMBER WHO IS ON DUTY OUTSIDE OF THE UNITED STATES OR IN HAWAII OR
ALASKA, WHETHER OR NOT HE IS IN A TRAVEL STATUS.
PARAGRAPH M4303-1 OF THE JOINT TRAVEL REGULATIONS SPECIFIES AMONG
OTHER THINGS THAT TEMPORARY LODGING ALLOWANCES ARE AUTHORIZED FOR THE
PURPOSE OF PARTIALLY REIMBURSING A MEMBER FOR THE MORE THAN NORMAL
EXPENSES INCURRED AT HOTELS OR HOTEL-LIKE ACCOMMODATIONS AND PUBLIC
RESTAURANTS UPON INITIAL ARRIVAL (REPORTING) AT A PERMANENT DUTY STATION
OUTSIDE THE UNITED STATES AND PENDING ASSIGNMENT OF GOVERNMENT QUARTERS,
OR PENDING COMPLETION OF ARRANGEMENTS FOR OTHER PERMANENT LIVING
ACCOMMODATIONS WHEN GOVERNMENT QUARTERS ARE NOT AVAILABLE. ALSO,
SUBPARAGRAPH M4303-3A, IN PRESCRIBING THE ALLOWANCE RATE PAYABLE TO A
QUALIFIED MEMBER, SPECIFIES THAT A MEMBER WITH 4 DEPENDENTS IS ENTITLED
TO 175 PERCENT OF THE APPLICABLE TRAVEL PER DIEM RATE.
YOU WILL NOTE THAT THE PURPOSE OF THE TEMPORARY LODGING ALLOWANCE IS
TO PARTIALLY REIMBURSE MEMBERS FOR THE EXTRAORDINARY EXPENDITURES
INCURRED IMMEDIATELY AFTER ARRIVAL AT DUTY STATIONS IN CERTAIN OVERSEAS
AREAS WHERE THE COST FOR HOTEL OR HOTEL-LIKE ACCOMMODATIONS UTILIZED AND
MEALS CONSUMED AT PUBLIC RESTAURANTS EXCEEDS THE EXPENSES WHICH WOULD BE
INCURRED UNDER NORMAL PERMANENT LIVING ARRANGEMENTS. THERE IS NO
PROVISION OF LAW OR REGULATION WHICH WOULD SERVE AS AUTHORITY FOR
REIMBURSEMENT OF THE TOTAL COST OF A MEMBER'S EXPENSES IN ANY CASE WHERE
SUCH EXPENSES EXCEED THE TEMPORARY LODGING ALLOWANCE AUTHORIZED,
REGARDLESS OF ANY EXTENUATING CIRCUMSTANCES INVOLVED.
IN ACCORDANCE WITH THE CONTROLLING LAW AND REGULATIONS, THE AIR FORCE
PROPERLY PAID YOU THE SUM OF $3,293.50 AS TEMPORARY LODGING ALLOWANCE
FOR THE 77-DAY PERIOD INVOLVED. SINCE THE LAW AND REGULATIONS MAKE NO
PROVISION FOR PAYMENT OF AN AMOUNT OVER AND ABOVE THE TEMPORARY LODGING
ALLOWANCE, NO LEGAL BASIS EXISTS FOR PAYMENT OF THE DIFFERENCE OF
$1,563.45 CLAIMED BY YOU.
THE MERITORIOUS CLAIMS ACT OF 1928, SUPRA, PROVIDES THAT WHEN A CLAIM
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 CONGRESS, IT SHALL BE SUBMITTED TO THE CONGRESS
WITH OUR RECOMMENDATION. THE REMEDY IS AN EXTRAORDINARY ONE AND ITS USE
IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES.
THE CASES WE HAVE REPORTED FOR CONSIDERATION OF THE CONGRESS
GENERALLY HAVE INVOLVED EQUITABLE CIRCUMSTANCES OF AN UNUSUAL NATURE
WHICH ARE UNLIKELY TO CONSTITUTE A RECURRING PROBLEM, SINCE TO REPORT TO
THE CONGRESS A PARTICULAR CASE WHEN SIMILAR EQUITIES EXIST OR ARE LIKELY
TO ARISE WITH RESPECT TO OTHER CLAIMANTS WOULD CONSTITUTE PREFERENTIAL
TREATMENT OVER OTHERS IN SIMILAR CIRCUMSTANCES.
WHILE IT IS UNFORTUNATE THAT IMMEDIATELY AFTER ARRIVAL IN HONG KONG
YOU WERE UNABLE TO OBTAIN PERMANENT HOUSING AND INCURRED LIVING EXPENSES
IN EXCESS OF THE AUTHORIZED TEMPORARY LODGING ALLOWANCE, SUCH
CIRCUMSTANCES ARE NOT OF AN UNUSUAL NATURE. THIS ALLOWANCE IS BASED
UPON AN AVERAGE OF THE COSTS INCURRED BY ALL MEMBERS AND NORMALLY SOME
ACTUAL COSTS WILL EXCEED THE AVERAGE WHILE OTHERS WILL BE LESS THAN THE
AVERAGE.
HENCE, WE FIND NO BASIS FOR CONSIDERING YOUR CASE AS CONTAINING
ELEMENTS OF AN UNUSUAL NATURE AND NO ACTION WILL BE TAKEN TO REPORT YOUR
CLAIM TO THE CONGRESS FOR CONSIDERATION.
B-173062, AUG 16, 1971
MILITARY PERSONNEL - FEMALE MEMBER - ENTITLEMENT TO BASIC ALLOWANCE FOR
QUARTERS FOR DEPENDENT HUSBAND BEGINNING FEBRUARY 1, 1971.
DECISION THAT CAPTAIN ELEANOR P. YBARRA IS ENTITLED TO BASIC
ALLOWANCE FOR QUARTERS FOR A DEPENDENT HUSBAND BEGINNING FEBRUARY 1,
1971.
AS IT APPEARS THAT MEMBER'S HUSBAND, WHO AFTER MARRIAGE WAS STRUCK
WITH ACUTE LYMPHOCYTIC LEUKEMIA, IS DISABLED AND DEPENDENT UPON FEMALE
MEMBER FOR HIS ENTIRE SUPPORT, IT MAY BE CONCLUDED THAT HE IS HER
DEPENDENT FOR ALLOWANCE FOR QUARTERS PURPOSES, UNDER APPLICABLE LAWS AND
REGULATIONS.
TO CAPTAIN R. L. MENIST, FC:
WE AGAIN REFER TO YOUR LETTER OF MARCH 31, 1971, WITH ENCLOSURES,
REQUESTING A DECISION CONCERNING THE ENTITLEMENT OF CAPTAIN ELEANOR P.
YBARRA, 000-00-3573, TO BASIC ALLOWANCE FOR QUARTERS FOR A DEPENDENT
HUSBAND BEGINNING FEBRUARY 1, 1971. THE SUBMISSION WAS ALLOCATED D.O.
NO. A-1126 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE
COMMITTEE.
IT IS SHOWN THAT CAPTAIN YBARRA, AN ARMY DIETICIAN, MARRIED HER
HUSBAND, FREDERICO, IN ITALY ON DECEMBER 7, 1970, THAT THEY WERE MARRIED
ONLY ONE MONTH WHEN HE BECAME ILL WHILE SHE WAS STATIONED IN THAT
COUNTRY, THAT NO EMPLOYMENT WAS AVAILABLE FOR HIM THERE, AND THAT HE HAS
BEEN A PATIENT AT LETTERMAN GENERAL HOSPITAL SINCE FEBRUARY 12, 1971.
IT APPEARS FROM STATEMENTS BY MEDICAL OFFICERS AT THE HOSPITAL THAT THE
ILLNESS HAS BEEN DIAGNOSED AS ACUTE LYMPHOCYTIC LEUKEMIA, THAT THIS
CONDITION WILL REQUIRE FREQUENT HOSPITALIZATION AND MEDICAL SUPERVISION
FOR TREATMENT INDEFINITELY; ALSO, THAT THE ILLNESS RENDERS MR. YBARRA
INCAPABLE FOR WORK AND THAT HE SHOULD BE CONSIDERED MORE THAN FIFTY
PERCENT DISABLED. CAPTAIN YBARRA STATES HER HUSBAND HAS NO INCOME AND
IS ENTIRELY DEPENDENT UPON HER FOR HIS SUPPORT.
SECTION 403 OF TITLE 37, U.S. CODE, PROVIDES FOR PAYMENT OF BASIC
ALLOWANCE FOR QUARTERS TO MEMBERS OF THE UNIFORMED SERVICES, THE RATE
BEING GREATER FOR A MEMBER WITH DEPENDENTS. FOR THE PURPOSES OF
QUALIFICATION FOR THIS ALLOWANCE, THE TERM "DEPENDENT" IS DEFINED IN 37
U.S.C. 401 AS INCLUDING THE SPOUSE OF SUCH A MEMBER SUBJECT TO THE
FURTHER CONDITION THAT "A PERSON IS NOT A DEPENDENT OF A FEMALE MEMBER
UNLESS HE IS IN FACT DEPENDENT ON HER FOR OVER ONE-HALF OF HIS SUPPORT."
IN ORDER FOR A HUSBAND TO BE REGARDED AS "IN FACT DEPENDENT" ON HIS
WIFE WHO IS A MEMBER OF A UNIFORMED SERVICE, THIS OFFICE HAS
CONSISTENTLY HELD THAT THE HUSBAND MUST BE INCAPABLE OF SELF-SUPPORT DUE
TO A PHYSICAL OR MENTAL INCAPACITY AND THAT THE EVIDENCE SUBMITTED MUST
SUPPORT BOTH DEPENDENCY AND INCAPACITY. SEE 32 COMP. GEN. 364 (1953).
SINCE THE INFORMATION SUBMITTED INDICATES THAT THE MEMBER'S HUSBAND
HAS BEEN DISABLED AND UNABLE TO WORK AT LEAST SINCE FEBRUARY 1, 1971,
AND THAT HE IS IN FACT DEPENDENT UPON THE MEMBER FOR HIS ENTIRE SUPPORT,
IT IS CONCLUDED THAT HE IS HER DEPENDENT.
IN 40 COMP. GEN. 215 (1960) WE HELD THAT WHERE A SERVICE MEMBER WITH
ONLY ONE DEPENDENT IS ASSIGNED TO AND OCCUPIES SINGLE-TYPE QUARTERS
DURING THE HOSPITALIZATION OF HIS ONLY DEPENDENT, THE MEMBER AND HIS
DEPENDENT ARE REGARDED AS HAVING BEEN ASSIGNED ADEQUATE QUARTERS SO THAT
NO QUARTERS ALLOWANCE MAY BE PAID, SINCE HE AND HIS DEPENDENT THEN WOULD
BE FURNISHED ALL THE QUARTERS THEY COULD UTILIZE. WE WENT ON TO SAY,
HOWEVER, THAT -
" *** IF SINGLE-TYPE QUARTERS ARE ASSIGNED TO A MEMBER WHO CONTINUES
TO MAINTAIN AND OCCUPY PRIVATE QUARTERS WHILE HIS DEPENDENT IS
HOSPITALIZED, THERE WOULD SEEM NO REQUIREMENT THAT HE ACCEPT AND OCCUPY
SUCH SINGLE QUARTERS, SINCE IT WOULD NOT BE AN ASSIGNMENT OF QUARTERS
ADEQUATE FOR HIMSELF AND DEPENDENT, AND IF SUCH QUARTERS ARE, IN FACT,
NOT OCCUPIED BY THE MEMBER SUCH AN ASSIGNMENT WOULD NOT PRECLUDE HIM
FROM CONTINUING TO RECEIVE QUARTERS ALLOWANCE AS A MEMBER WITH DEPENDENT
DURING THE PERIOD OF HOSPITALIZATION OF THE DEPENDENT."
ALSO, SEE PARAGRAPH 30222B(3) OF THE DEPARTMENT OF DEFENSE MILITARY
PAY AND ALLOWANCES ENTITLEMENTS MANUAL.
IN THE PRESENT CASE, THE MILITARY PAY VOUCHER SHOWS THAT THE MEMBER
WAS PAID BASIC ALLOWANCE FOR QUARTERS WITHOUT DEPENDENT FOR FEBRUARY
1971, INDICATING THAT SHE WAS NOT OCCUPYING SINGLE-TYPE GOVERNMENT
QUARTERS DURING THAT MONTH AND, THEREFORE, IS ENTITLED TO THE ADDITIONAL
AMOUNT DUE AS QUARTERS ALLOWANCE AT THE WITH DEPENDENT RATE FOR THAT
MONTH.
HER ELIGIBILITY FOR THE ALLOWANCE AT THE HIGHER RATE FOR SUBSEQUENT
MONTHS IS TO BE DETERMINED ON THE BASIS INDICATED IN 40 COMP. GEN. 215.
THE VOUCHER IS RETURNED, PAYMENT THEREON BEING AUTHORIZED ON THE
BASIS INDICATED ABOVE.
B-173279, AUG 16, 1971
CIVILIAN EMPLOYEE - LOCAL TRAVEL - REIMBURSEMENT FOR USE OF POV
DECISION ALLOWING CLAIM OF MR. HAROLD W. MERIDETH, EMPLOYEE OF THE
DEPARTMENT OF TRANSPORTATION, FOR $31.90 FOR LOCAL TRAVEL PERFORMED IN
HIS PRIVATELY OWNED VEHICLE FROM HIS RESIDENCE IN RIVERDALE, GEORGIA TO
THE FEDERAL HIGHWAY OFFICE IN ATLANTA, GA., (40 MILES EACH WAY FOR FOUR
DAYS) IN THE PERFORMANCE OF HIS OFFICIAL DUTIES.
ASSUMING THAT APPROVAL OF THE VOUCHER BY THE REGIONAL AUDIT MANAGER
CONSTITUTED APPROVAL OF THE USE OF THE EMPLOYEE'S AUTOMOBILE, WHICH IS
REQUIRED BY PARAGRAPH 841 OF THE DEPARTMENTAL MANUAL REGULATIONS THAT
IMPLEMENTS SECTION 3.5(C)(1) OF THE STANDARDIZED GOVERNMENTAL TRAVEL
REGULATIONS, AND AS A GOVERNMENT VEHICLE WAS NOT AVAILABLE, PAYMENT AT
10[ PER MILE PLUS PARKING IS AUTHORIZED.
TO MRS. LUELLA S. HOWARD:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 10, 1971, REQUESTING OUR
DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE ENCLOSED VOUCHER FOR
$31.90, IN FAVOR OF MR. HAROLD W. MERIDETH, AN EMPLOYEE OF YOUR AGENCY,
FOR TRAVEL PERFORMED FROM HIS RESIDENCE IN RIVERDALE, GEORGIA, TO THE
FEDERAL HIGHWAY OFFICE IN ATLANTA, GEORGIA, IN THE PERFORMANCE OF
OFFICIAL DUTIES PERTAINING TO AUDIT ACTIVITIES OF THE OFFICE OF AUDITS,
ATLANTA REGION, OFFICE OF THE SECRETARY OF TRANSPORTATION, UNDER ANNUAL
TRAVEL ORDERS DATED JANUARY 10, 1971.
THERE IS ATTACHED TO THE VOUCHER A COPY OF ANNUAL TRAVEL ORDER NO.
TS-19748, DATED JANUARY 10, 1971, ISSUED BY THE OFFICE OF AUDITS,
AUTHORIZING MR. MERIDETH TO TRAVEL FROM HIS OFFICIAL DUTY STATION IN
ATLANTA, GEORGIA TO ANY POINT DIRECTED AND RETURN TO ATLANTA, GEORGIA.
THE ORDER AUTHORIZED TRAVEL BY VARIOUS MEANS, INCLUDING GOVERNMENT
VEHICLE, RENTAL CAR AS APPROPRIATE AND PRIVATELY OWNED CONVEYANCE. UNDER
SUCH ORDER MR. MERIDETH CLAIMS MILEAGE AT 10 CENTS PER MILE FOR TRAVEL
BY PRIVATELY OWNED VEHICLE BECAUSE GOVERNMENT-OWNED VEHICLE WAS NOT
AVAILABLE. THE ITINERARY SHOWS THAT TRAVEL WAS PERFORMED DAILY FROM
APRIL 26 THROUGH APRIL 30, 1971, FROM THE EMPLOYEE'S RESIDENCE IN
RIVERDALE, GEORGIA, TO THE FEDERAL HIGHWAY OFFICE, ATLANTA, GEORGIA, AND
RETURN, WITH ROUND-TRIP MILEAGE OF 40 MILES ESTABLISHED BY SPEEDOMETER
READINGS, FOR A TOTAL OF 200 MILES. PARKING FEES FOR DAILY PARKING OF
HIS AUTOMOBILE, TOTALING $11.90 WERE ALSO CLAIMED. THE VOUCHER IN THE
AMOUNT OF $31.90 WAS APPROVED BY THE REGIONAL AUDIT MANAGER. WE NOTE
THAT THE TRAVEL APPEARS TO HAVE BEEN PERFORMED WITHIN THE EMPLOYEE'S
OFFICIAL HEADQUARTERS. THEREFORE THE TRAVEL ORDER PREVIOUSLY REFERRED
TO WOULD NOT BE APPLICABLE SINCE IT IS CONCERNED WITH TRAVEL AWAY FROM
THE EMPLOYEE'S HEADQUARTERS.
SECTION 3.5C(1), STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, IN
EFFECT DURING THE PERIOD INVOLVED, PROVIDES IN PERTINENT PART THAT WHEN
EMPLOYEES RENDERING SERVICE TO THE GOVERNMENT USE PRIVATELY OWNED MOTOR
VEHICLES IN THE CONDUCT OF OFFICIAL BUSINESS WITHIN OR OUTSIDE THEIR
DESIGNATED POSTS OF DUTY OR PLACES OF SERVICE, AND SUCH USE IS
AUTHORIZED OR APPROVED AS ADVANTAGEOUS TO THE GOVERNMENT, PAYMENT SHALL
BE MADE ON A MILEAGE BASIS AT RATES NOT TO EXCEED THE APPROPRIATE
APPLICABLE RATES THEREIN DESIGNATED. IT PROVIDES FURTHER FOR
REIMBURSEMENT OF THE COST OF AUTOMOBILE PARKING FEES UNLESS THE TRAVEL
ORDERS OR OTHER ADMINISTRATIVE DETERMINATION RESTRICTS THEIR ALLOWANCE.
IMPLEMENTING DEPARTMENTAL MANUAL REGULATIONS 1500.13, PERTAINING TO
THE USE OF A PRIVATELY OWNED CAR FOR LOCAL TRAVEL ARE CONTAINED IN
SECTION 4, CHAPTER 8 THEREOF.
PARAGRAPH 841 OF THE MANUAL PROVIDES THAT LOCAL TRAVEL IS AUTHORIZED
ORALLY BY ANY SUPERVISOR WHO HAS BEEN REDELEGATED SUCH AUTHORITY AND NO
WRITTEN TRAVEL ORDERS ARE REQUIRED, JUST THE APPROVAL OF THE
REIMBURSEMENT VOUCHER. HOWEVER, WHERE THERE ARE A NUMBER OF MODES OF
TRANSPORTATION AVAILABLE FOR ACCOMPLISHING LOCAL TRAVEL, PARTICULARLY IN
THE LARGER METROPOLITAN AREAS, AUTHORIZING OFFICIALS WILL AUTHORIZE THE
MODE OF TRAVEL THAT WILL ENABLE THE EMPLOYEE TO ACCOMPLISH OFFICIAL
BUSINESS MOST EFFICIENTLY. IT PROVIDES FURTHER THAT THE APPROVAL OF
REIMBURSEMENT VOUCHER BY THE APPROPRIATE OFFICIAL SHALL BE ACCEPTED AS
ADMINISTRATIVE APPROVAL OF MODE OF TRAVEL USED; NO FURTHER
JUSTIFICATION IS REQUIRED.
PARAGRAPH 843 OF THE MANUAL PROVIDES IN PERTINENT PART THAT WHEN AN
EMPLOYEE IS PROPERLY AUTHORIZED TO USE A POV FOR OFFICIAL BUSINESS, IT
IS THE AGENCY'S INTENT TO ALLOW MILEAGE FROM WHATEVER POINT HE BEGINS
HIS JOURNEY WITH NO REQUIREMENT THAT THERE BE DEDUCTED FROM THE
COMPUTATION OF SUCH MILEAGE, THE DISTANCE THAT THE EMPLOYEE WOULD
NORMALLY TRAVEL BETWEEN HIS HOME AND HIS HEADQUARTERS WITHIN THE
LIMITATIONS OTHERWISE PRESCRIBED IN PARAGRAPH 843A, WHICH IS NOT
APPLICABLE HERE.
PARAGRAPH 842 OF THE MANUAL LISTS THE VARIOUS MODES OF TRAVEL WHICH
MAY BE AVAILABLE LOCALLY, AND THE RATE OF REIMBURSEMENT FOR EACH AS SET
OUT IN PARAGRAPH 820.A OF THE MANUAL. IN PERTINENT PART THEY INCLUDE AS
FOLLOWS:
D. POV - ADVANTAGEOUS TO GOVERNMENT - GOVERNMENT VEHICLE AVAILABLE
REIMBURSEMENT AT RATE (4).
E. POV - ADVANTAGEOUS TO GOVERNMENT - GOVERNMENT VEHICLE NOT
AVAILABLE REIMBURSEMENT AT RATE (13).
RATE (4), PARAGRAPH 820.A IS 7 CENTS PER MILE IN INSTANCES INCLUDING
LOCAL TRAVEL, WHEN IT IS ADVANTAGEOUS TO USE VEHICLE AND GOVERNMENT
VEHICLE IS AVAILABLE. RATE (13) OF THAT PARAGRAPH IS 10 CENTS PER MILE
FOR LOCAL TRAVEL AT OFFICIAL STATION WHEN IT IS ADVANTAGEOUS TO USE
VEHICLE AND GOVERNMENT VEHICLE IS NOT AVAILABLE, OR IF AVAILABLE, ITS
USE IS NOT FEASIBLE DUE TO JUSTIFIABLE REASONS. PARKING FEES ARE
PAYABLE IN ADDITION TO THE MILEAGE RATE.
THERE IS NO INDICATION IN THE RECORD THAT THE LOCAL TRAVEL HERE
INVOLVED WAS PREVIOUSLY AUTHORIZED, HOWEVER, UNDER THE CITED
REGULATIONS, THE VOUCHER APPEARS PROPER FOR CERTIFICATION ASSUMING THAT
THE APPROVAL OF THE VOUCHER CONSTITUTES APPROVAL OF THE USE OF THE
EMPLOYEE'S AUTOMOBILE AS SEEMS TO BE INDICATED BY PARAGRAPH 841 OF THE
REGULATIONS REFERRED TO ABOVE.
THE VOUCHER IS RETURNED HEREWITH FOR HANDLING ACCORDINGLY.
B-173376, AUG 16, 1971
BID PROTEST - NEGOTIATED CONTRACT - FAILURE TO GIVE ABSTRACT OF BIDS
DECISION DENYING PROTEST OF JETS SERVICES, INC., HIGHER BIDDER,
AGAINST AWARD OF CONTRACT TO SPACE SERVICES OF GEORGIA, LOW BIDDER UNDER
RFP ISSUED BY NAVAL REGIONAL PROCUREMENT OFFICE, PHILADELPHIA, PA.
THE SOLICITATION WARNED OFFERORS THAT A CONTRACT EXISTED WITH SPACE
SERVICES WHICH CONTAINED AN OPTION TO RENEW AND THAT THE SOLICITATION
MIGHT BE CANCELLED IF EXERCISE OF THE OPTION SHOULD BE DETERMINED TO BE
IN THE BEST INTEREST OF THE GOVERNMENT. AS THE PROCUREMENT WAS
NEGOTIATED, NOTIFICATION OF CANCELLATION OF THE SOLICITATION AND
EXERCISE OF THE OPTION WAS ALL THAT WAS REQUIRED OF THE AGENCY UNDER
ASPR 3-508.3. THE FAILURE TO FURNISH AN ABSTRACT OF THE BIDS, WHICH WAS
THE BASIS OF THE PROTEST, WAS NOT REQUIRED; THEREFORE, THE PROTEST IS
DENIED.
TO MILLAR AND FALLIN:
FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF JETS SERVICES,
INC. (JETS), AGAINST THE AWARD OF A CONTRACT TO SPACE SERVICES OF
GEORGIA (SPACE SERVICES) UNDER REQUEST FOR PROPOSAL (RFP) NO.
N00140-71-R-1452, ISSUED ON APRIL 19, 1971, BY THE NAVAL REGIONAL
PROCUREMENT OFFICE, PHILADELPHIA, PENNSYLVANIA (NRPOPP).
THE INSTANT SOLICITATION WAS ISSUED, PURSUANT TO THE PROVISIONS OF
SECTION 1-1505 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), TO
TEST THE MARKET FOR A COMPARISON OF PRICES OFFERED UNDER THE
SOLICITATION WITH THAT OFFERED UNDER AN OPTION IN THE CURRENT CONTRACT
HELD BY SPACE SERVICES FOR MESS ATTENDANT SERVICES AT THE U. S. NAVAL
STATION, PHILADELPHIA, PENNSYLVANIA. ACCORDINGLY, PROSPECTIVE OFFERORS
WERE ADVISED THAT THE EXISTING CONTRACT CONTAINED AN OPTION FOR RENEWAL
AND THAT THE GOVERNMENT MIGHT NOT MAKE AN AWARD ON THE BASIS OF THE NEW
SOLICITATION.
OF THE SEVEN OFFERS RECEIVED ON MAY 27, 1971, SPACE SERVICES
SUBMITTED THE LOWEST OFFER AND JETS SUBMITTED THE HIGHEST. CONCURRENT
WITH SUBMISSION OF ITS PROPOSAL, SPACE SERVICES SUBMITTED AN ADJUSTMENT
IN ITS ORIGINAL CONTRACT PRICE, AS IT WAS PERMITTED TO DO UNDER ITS
CURRENT CONTRACT, WHICH WAS A LOWER PRICE ON ITS EXISTING OPTION THAN
THAT OFFERED UNDER THE SOLICITATION. THE NEGOTIATOR, USING THE
GOVERNMENT'S ESTIMATE OF THE NUMBER OF MANNING HOURS CONSIDERED
NECESSARY FOR SATISFACTORY PERFORMANCE (54,504 UNDER THE EXISTING
CONTRACT) AND THE INCREASE IN THE HOURLY MINIMUM WAGE (.14), AS
INDICATED IN THE MARCH 19, 1971 WAGE DETERMINATION, CONSIDERED THE
OFFERED PRICE OF $190,329.36 UNDER THE OPTION AS FAIR AND REASONABLE.
IT WAS THEREFORE, DETERMINED TO BE IN THE BEST INTEREST OF THE
GOVERNMENT TO CANCEL THE SOLICITATION AND TO EXERCISE THE OPTION.
YOU COMPLAIN ON BEHALF OF JETS THAT YOU WERE NOT FURNISHED AN
ABSTRACT SHOWING THE BIDDERS AND THE BID PRICES, AND THAT THE OFFERED
PRICE OF SPACE SERVICES IS LESS THAN THAT REQUIRED TO MEET THE COSTS OF
PAYING THE MINIMUM WAGES FOR THE NUMBER OF MAN HOURS REQUIRED UNDER THE
SOLICITATION.
IT IS REPORTED THAT ALL OFFERORS WERE NOTIFIED OF THE EXERCISE OF THE
OPTION AND CANCELLATION OF THE SOLICITATION, AS REQUIRED BY ASPR
3-508.3. THE INFORMATION REQUIRED TO BE FURNISHED UNDER THE CITED ASPR
PARAGRAPH IS ALL THAT A PROSPECTIVE CONTRACTOR IS ENTITLED TO UNDER A
NEGOTIATED PROCUREMENT, AND APPARENTLY YOUR CLIENT HAS BEEN SO INFORMED.
CONCERNING YOUR ARGUMENT THAT SPACE SERVICES' OFFER WILL NOT MEET THE
MINIMUM WAGE REQUIREMENTS FOR THE NUMBER OF HOURS REQUIRED, WE HAVE
VERIFIED THAT WAGE DETERMINATION NUMBERED 67-258 (REV. 5) ISSUED ON
MARCH 19, 1971, FOR THE PHILADELPHIA AREA PROVIDED FOR BASIC WAGES OF
$2.67 PER HOUR, PLUS .08 FOR HEALTH AND WELFARE, TOGETHER WITH VACATION
AND HOLIDAY PAY. SPACE SERVICE'S OFFER UNDER THE OPTION AMOUNTS TO
APPROXIMATELY $3.50 PER HOUR FOR THE 54,504 ESTIMATED HOURS REQUIRED FOR
THE NEW CONTRACT PERIOD. CONSEQUENTLY, IT WOULD APPEAR THAT SPACE
SERVICES HAS SUBMITTED AN ACCEPTABLE OFFER THAT WILL PERMIT IT TO PAY
THE MINIMUM WAGES IN QUESTION, AND YOUR PROTEST ON BEHALF OF JETS MUST
THEREFORE BE DENIED.
B-173428(1), AUG 16, 1971
BID PROTEST - NEEDS OF THE GOVERNMENT - DETERMINATION
DECISION DENYING PROTEST OF RADIO BROADCASTING CO. AGAINST AWARD OF
CONTRACT TO MOTOROLA, INC. UNDER IFB ISSUED BY SUPPLY DIVISION,
VETERANS ADMINISTRATION HOSPITAL, PHILADELPHIA, PA., FOR RADIO PAGING
SYSTEM AND A TWO-WAY RADIO SYSTEM.
PROTESTANT CONTENDS THAT THE PROCUREMENT IS NOT IN THE PUBLIC
INTEREST, AS A NEW PAGING SYSTEM WILL BE DEVELOPED IN A YEAR THAT WILL
MAKE PRESENT MODELS OBSOLETE. THE DRAFTING OF SPECIFICATIONS TO MEET
THE NEEDS OF THE GOVERNMENT IS THE RESPONSIBILITY OF THE PROCURING
AGENCY AND SPECULATIVE ALLEGATIONS AS TO FUTURE DEVELOPMENTS IN A FIELD,
MAY NOT BE THE BASIS OF UPSETTING SUCH A DETERMINATION.
TO SCHWARTZ & WOODS:
WE REFER TO YOUR LETTER DATED JUNE 28, 1971, PROTESTING ON BEHALF OF
THE RADIO BROADCASTING CO. AGAINST THE AWARD OF A CONTRACT TO MOTOROLA,
INC., ON JUNE 24, 1971, UNDER INVITATION FOR BIDS NO. 71-19, ISSUED BY
THE SUPPLY DIVISION, VETERANS ADMINISTRATION HOSPITAL, PHILADELPHIA. THE
INVITATION CONCERNS THE PROCUREMENT OF A RADIO PAGING SYSTEM AND A
TWO-WAY RADIO SYSTEM FOR THE HOSPITAL, WHICH WILL SUPPLANT THE RADIO
PAGING SERVICES AND EQUIPMENT RADIO BROADCASTING IS PRESENTLY PROVIDING
THE HOSPITAL ON A MONTH-TO-MONTH BASIS.
YOU CONTEND THE PROCUREMENT IS CONTRARY TO THE PUBLIC INTEREST,
BECAUSE, AS YOU ALLEGE, NEW AND IMPROVED RADIO PAGING EQUIPMENT, WHICH
WILL MAKE ALL CURRENT MODELS OUTMODED, WILL BECOME AVAILABLE WITHIN THE
NEXT YEAR. YOU ALSO CONTEND THAT BECAUSE IT IS THE GOVERNMENT'S POLICY
TO ASSURE THAT SMALL BUSINESS CONCERNS ARE GIVEN A FAIR OPPORTUNITY TO
OBTAIN GOVERNMENT CONTRACTS THE PERIOD ALLOWED FOR THE COMPUTATION OF
BIDS SHOULD HAVE BEEN LONGER THAN WAS ALLOWED SO THAT SMALL BUSINESS
CONCERNS WOULD HAVE HAD ADEQUATE TIME TO PREPARE THEIR BIDS. YOU
EMPHASIZE THAT ONLY ONE BID WAS RECEIVED BY THE PROCUREMENT ACTIVITY
UNDER THIS INVITATION.
THE DRAFTING OF SPECIFICATIONS DESIGNED TO MEET THE ACTUAL NEEDS OF
THE GOVERNMENT IS THE RESPONSIBILITY OF THE PROCUREMENT ACTIVITY. 47
COMP. GEN. 701, 704 (1968). WE HAVE BEEN ADVISED THAT THE VETERANS
ADMINISTRATION IS IN CONTACT WITH MANUFACTURERS AS TO ANY NEW
DEVELOPMENTS IN THIS FIELD OF EQUIPMENT, AND THAT, CONSEQUENTLY, THE
SPECIFICATIONS COVERING THE PRESENT PROCUREMENT ARE CURRENT AND BASED ON
THE LATEST TECHNICAL DEVELOPMENTS. MOREOVER, THE PROCUREMENT ACTIVITY
HAS DETERMINED THAT THE SPECIFICATIONS IN QUESTION SUFFICIENTLY REFLECT
ITS MINIMUM OR ACTUAL NEEDS. FOR THESE REASONS, WE ARE UNABLE TO AGREE
THAT BECAUSE OF SPECULATIVE FUTURE DEVELOPMENTS IN THIS FIELD, THE
PROCUREMENT OF THIS EQUIPMENT WAS CONTRARY TO THE PUBLIC INTEREST.
NOR CAN WE ACCEPT YOUR CONTENTION THAT THE PERIOD ALLOWED FOR THE
COMPUTATION OF BIDS WAS TOO BRIEF. A PERIOD OF 17 DAYS BETWEEN ISSUANCE
OF THE INVITATION ON JUNE 4 AND OPENING OF BIDS ON JUNE 21 WAS ALLOWED
FOR THE COMPUTATION OF BIDS. SEE SECTION 1-2.202-1(C) OF THE FEDERAL
PROCUREMENT REGULATIONS WHICH, AS A GENERAL RULE, REQUIRES A MINIMUM OF
15 CALENDAR DAYS WHEN STANDARD COMMERCIAL ARTICLES ARE BEING PROCURED.
THE SPECIFICATIONS ARE NEITHER COMPLEX NOR RESTRICTIVE, AND COVER
STANDARD COMMERCIAL EQUIPMENT AVAILABLE FROM NUMEROUS MANUFACTURERS.
FURTHER, WE MUST NOTE THAT WHILE RADIO BROADCASTING ATTEMPTED TO
CONVINCE THE CONTRACTING OFFICER TO RETAIN ITS SERVICES INSTEAD OF
PROCURING THE EQUIPMENT, IT DID NOT PROTEST UNTIL THE DAY OF THE BID
OPENING THAT INSUFFICIENT TIME WAS ALLOWED FOR COMPUTATION OF BIDS.
ALTHOUGH YOU ALLEGE THAT RADIO BROADCASTING RECEIVED WORD OF THE
PROPOSED PROCUREMENT ONLY A FEW DAYS BEFORE THE DATE OF BID OPENING, WE
HAVE BEEN ADVISED BY THE PROCURING ACTIVITY THAT THE PROTESTANT WAS
NOTIFIED OF THE INVITATION AT THE TIME OF ITS ISSUANCE AND WAS FURNISHED
A COPY.
FINALLY, WE CANNOT CONCLUDE THAT THE AWARD OF THE CONTRACT TO THE
SOLE BIDDER WAS IMPROPER. THE INVITATION NEED NOT, AS YOU APPARENTLY
SUGGEST, BE CANCELLED AND READVERTISED MERELY BECAUSE ONLY ONE BID WAS
RECEIVED. CF. 50 COMP. GEN. ___ (B-169813, SEPTEMBER 15, 1970) AND
B-166679, JUNE 10, 1969, WHEREIN WE RECOGNIZE THAT THE CONTRACTING
OFFICER'S DECISION TO ACCEPT THE ONLY BID RECEIVED IS NOT NECESSARILY AN
ABUSE OF HIS DISCRETION, IF THE BID PRICE IS REASONABLE. HERE, WE NOTE
THAT YOU HAVE NOT QUESTIONED THE REASONABLENESS OF MOTOROLA'S $36,517
BID PRICE. FURTHER, THE CONTRACTING OFFICER DETERMINED THE BID PRICE TO
BE REASONABLE IN LIGHT OF A $38,124 ESTIMATE PREPARED BY THE VETERANS
ADMINISTRATION'S COMMUNICATIONS SERVICE. WE ARE UNABLE TO DISAGREE WITH
THIS CONCLUSION.
ACCORDINGLY, YOUR PROTEST MUST BE DENIED.
B-173428(2), AUG 16, 1971
BID PROTEST - NEEDS OF THE GOVERNMENT - DETERMINATION
LETTER TO THE ADMINISTRATOR OF THE VETERANS ADMINISTRATION ADVISING
OF THE DENIAL OF PROTEST BY RADIO BROADCASTING CO.
TO MR. JOHNSON:
WE REFER TO THE LETTERS 134G DATED JULY 8 AND 15, 1971, FROM THE
DIRECTOR, SUPPLY SERVICE, DEPARTMENT OF MEDICINE AND SURGERY, FORWARDING
THE ADMINISTRATIVE REPORT ON THE PROTEST BY THE RADIO BROADCASTING CO.
AGAINST AWARD OF A CONTRACT TO MOTOROLA, INC., UNDER INVITATION FOR BIDS
NO. 71-19, ISSUED BY THE SUPPLY DIVISION, VETERANS ADMINISTRATION
HOSPITAL, PHILADELPHIA.
ENCLOSED IS A COPY OF OUR DECISION OF TODAY DENYING THE PROTEST. WE
NOTE, HOWEVER, THAT WHILE INVITATIONS WERE SENT TO SIX FIRMS IN THE
PHILADELPHIA AREA AND THE PROCUREMENT WAS ADVERTISED BY POSTING NOTICE
THEREOF IN FOUR GOVERNMENTAL BUILDINGS IN PHILADELPHIA, THE PROCUREMENT
WAS NOT SYNOPSIZED IN THE COMMERCE BUSINESS DAILY AS REQUIRED BY SECTION
1-1.1003 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR). WE BELIEVE THAT
APPROPRIATE STEPS SHOULD BE TAKEN TO INSURE THAT THE REQUIREMENTS OF FPR
SEC. 1-1.1003 ARE IMPLEMENTED IN FUTURE PROCUREMENTS.
B-173558, B-173598 THROUGH B-173613, AUG 16, 1971
CIVILIAN EMPLOYEE - OVERTIME COMPENSATION FOR TRAVEL TIME - RESOLUTION
OF DISPUTED FACTS
DECISION SUSTAINING THE PREVIOUS DISALLOWANCE OF THE CLAIMS OF 16
PERSONS FOR OVERTIME COMPENSATION FOR TIME CONSUMED IN TRAVELING BETWEEN
ASSEMBLY POINTS AND WORKSITES AS EMPLOYEES OF THE LITTLE ROCK DISTRICT,
CORPS OF ENGINEERS.
WHERE THERE IS A DISPUTE AS TO FACTUAL MATTERS, AS IN THIS CASE, GAO
IS NOT EQUIPPED TO RESOLVE THAT DISPUTE. GAO MUST BASE ITS
DETERMINATION ON THE FACTS AS REPORTED BY THE ADMINISTRATIVE AGENCY.
TO OSCAR E. DAVIS, JR., ESQUIRE:
THIS IS IN FURTHER REFERENCE TO YOUR LETTERS OF MAY 14 AND JUNE 23,
1971. YOU HAVE SUBMITTED POWERS OF ATTORNEY EXECUTED BY MR. WILLIAM P.
CLAPP AND 16 OTHER CLAIMANTS (WAGE BOARD EMPLOYEES) AUTHORIZING THE LAW
FIRM OF SMITH, WILLIAMS, FRIDAY, ELDREDGE & CLARK TO ACT ON THEIR BEHALF
INCIDENT TO THEIR CLAIMS FOR OVERTIME COMPENSATION FOR THE PERIOD
JANUARY 7, 1963, THROUGH DECEMBER 23, 1965, AS EMPLOYEES OF THE LITTLE
ROCK DISTRICT OF THE U. S. CORPS OF ENGINEERS, AND REQUEST
RECONSIDERATION OF OUR DISALLOWANCE OF THE CLAIMS.
IN YOUR LETTER OF MAY 14, 1971, YOU SAY THAT YOU HAVE OUR CERTIFICATE
OF SETTLEMENT DATED SEPTEMBER 4, 1970, SENT TO MR. CLAPP. SIMILAR
CERTIFICATES OF SETTLEMENT WERE SENT TO THE OTHER 16 CLAIMANTS. THE
FACTS IN THE CASES WERE FULLY SET FORTH IN THE SETTLEMENTS AND THEREFORE
NEED NOT BE REPEATED IN DETAIL HERE. THE RECORD INDICATES THAT THE
CLAIMS WERE FOR PAYMENT OF OVERTIME FOR TIME CONSUMED IN TRAVELING (30
MINUTES EACH DAY) BETWEEN ASSEMBLY POINTS AND WORKSITES DURING THE
PERIOD INVOLVED. THE CLAIMS WERE DISALLOWED ON THE GROUND THAT
ACTIVITIES SUCH AS RIDING OR DRIVING TO THE PLACE OF WORK ARE NOT
GENERALLY CONSIDERED ACTIVITIES WHICH ARE TO BE INCLUDED AS COMPENSABLE
TIME. THERE WAS NO EVIDENCE THAT ANY WORK WAS ORDERED OR PERFORMED
BEFORE REACHING OR AFTER LEAVING THE WORKSITES.
DURING THE PERIOD OF THE CLAIM, WAGE BOARD EMPLOYEES WERE ENTITLED TO
OVERTIME COMPENSATION FOR DUTY IN EXCESS OF 8 HOURS PER DAY OR 40 HOURS
PER WEEK UNDER SECTION 23 OF THE INDEPENDENT OFFICES APPROPRIATION ACT,
1935, APPROVED MARCH 28, 1934, 48 STAT. 522, AS AMENDED BY SECTION 201
OF THE WORK HOURS ACT OF 1962, APPROVED AUGUST 13, 1962, PUBLIC LAW
87-581, 76 STAT. 360, WHICH PROVIDED IN PERTINENT PART:
" *** PROVIDED FURTHER, THAT OVERTIME WORK IN EXCESS OF EIGHT HOURS
PER DAY OR IN EXCESS OF FORTY HOURS PER WEEK SHALL BE COMPENSATED FOR AT
NOT LESS THAN TIME AND ONE-HALF OF BASIC RATE OF COMPENSATION *** "
THE DEPARTMENT OF THE ARMY REPORTS THAT THE FIELD EMPLOYEES OF THE
LITTLE ROCK DISTRICT WHO WERE ENGAGED IN RESERVOIR MAINTENANCE, CORE
BORING, SURVEYS, AND CONSTRUCTION INSPECTION MET AT ASSEMBLY POINTS AND
PROCEEDED TO THEIR WORKSITES. THE TRAVEL TIME VARIED ACCORDING TO THE
DISTANCE TO BE TRAVELED. IN CONSULTATION WITH THE EMPLOYEES, IT WAS
DETERMINED THAT FIXED TIMES OF DEPARTURE AND RETURN WOULD PERMIT THEM TO
REACH OR LEAVE THE ASSEMBLY POINTS IN JOINT CAR POOLS AND MEET OTHER
PERSONAL NEEDS. THERE IS NO EVIDENCE THAT ASSEMBLY AT DESIGNATED POINTS
WAS FOR OTHER THAN THE PURPOSE OF TRANSPORTATION TO THE WORKSITES.
IT WAS THE POLICY OF THE LITTLE ROCK DISTRICT WHEN IT WAS NECESSARY
TO ESTABLISH AN ASSEMBLY POINT AT SOME DISTANCE FROM THE WORKSITE TO
REQUIRE THE EMPLOYEES TO TRAVEL ONE WAY FROM THE ASSEMBLY POINT ON THEIR
OWN TIME AND ONE WAY ON GOVERNMENT TIME. ON DECEMBER 23, 1965, THE
POLICY OF REQUIRING THE EMPLOYEES TO TRAVEL ON THEIR OWN TIME WAS
DISCONTINUED.
ALTHOUGH YOU STATE IN YOUR LETTER THAT WORK WAS PERFORMED PRIOR TO
DEPARTING FOR THE WORKSITES, THERE IS NOTHING IN THE RECORD TO
SUBSTANTIATE SUCH STATEMENT. ON THE CONTRARY, THE RECORD SHOWS THAT
ASSEMBLY WAS FOR THE PURPOSE OF TRANSPORTATION. AS STATED IN OUR
CERTIFICATES OF SETTLEMENT ON THE BASIS OF THE FACTS PRESENTED IT CANNOT
BE SAID THAT THE CLAIMANTS WERE PERFORMING AN INTEGRAL AND INDISPENSABLE
PART OF THE ACTIVITY FOR WHICH THEY WERE EMPLOYED SO AS TO BE CONSIDERED
AS IN A "WORK" STATUS WHEN DRIVING OR RIDING BETWEEN THE LOCATION OF THE
ASSEMBLY POINTS AND THE WORKSITES. THEREFORE, THERE IS NO BASIS FOR
ENTITLEMENT TO OVERTIME COMPENSATION. A SIMILAR CONCLUSION WITH REGARD
TO THE TIME SPENT BY GOVERNMENT EMPLOYEES IN GOING TO AND RETURNING FROM
THEIR WORKSITES WAS REACHED IN AHEARN V UNITED STATES, 142 CT. CL. 309
(1958). SEE ALSO ABBOTT V UNITED STATES, 138 CT. CL. 459, 151 F. SUPP.
929 (1957); BIGGS V UNITED STATES, 152 CT. CL. 545 (1961).
YOU SAY THAT IF THE CLAIMANTS WERE ALLOWED TO TESTIFY IN EITHER A
HEARING OR THROUGH AFFIDAVITS THEIR TESTIMONY WOULD ESTABLISH THE FACT
THAT THE CLAIMANTS COMMENCED WORK AT THE CENTRAL LOCATION PRIOR TO
DRIVING TO THEIR ASSIGNED AREAS AND, THUS, ARE ENTITLED TO PAY FOR THE
TRAVEL TIME. AS INDICATED ABOVE, THE ADMINISTRATIVE REPORT ESTABLISHES
THAT ASSEMBLY WAS FOR THE PURPOSE OF MEETING FOR TRANSPORTATION TO THE
WORKSITES AND THEREFORE NOT PERFORMANCE OF WORK AT THE ASSEMBLY SITES.
THUS A DIRECT CONTRADICTION EXISTS BETWEEN THE FACTS AS ADMINISTRATIVELY
REPORTED AND THOSE CONTENDED BY THE CLAIMANTS. WE ARE NOT EQUIPPED TO
RESOLVE THE FACTUAL DISPUTE EXISTING IN THE CIRCUMSTANCES. WE,
THEREFORE, ARE REQUIRED TO BASE OUR DETERMINATION ON THE FACTS AS
REPORTED BY THE AGENCY.
ACCORDINGLY, WE MUST SUSTAIN THE ACTION TAKEN IN OUR SETTLEMENTS IN
DISALLOWING THE CLAIMS.
B-173709, AUG 16, 1971
MILITARY PERSONNEL - ACCOUNTABLE OFFICER - REIMBURSEMENT FOR SHORTAGES
DECISION THAT UNDER 31 U.S.C. 95A THE COMP. GEN. DOES NOT HAVE
AUTHORITY TO DETERMINE WHETHER THE ACCOUNTABLE OFFICER IN QUESTION
SHOULD BE REIMBURSED $20 IN RESTITUTION OF A SHORTAGE OF THAT AMOUNT IN
HIS ACCOUNT. THE MATTER IS FOR THE DETERMINATION OF THE SECRETARY OF
THE ARMY.
TO OFFICE OF THE COMPTROLLER OF THE ARMY:
WE ARE IN RECEIPT OF A COMMUNICATION FROM "CG USASUPCOM CRB RVN"
REFERENCE P220110Z JUL 71, WHICH WAS FORWARDED TO OUR OFFICE IN AN
ENVELOPE FROM YOUR OFFICE WITHOUT ENDORSEMENT. THE SENDER STATES THAT
HE IS THE PRESENT ACCOUNTABLE OFFICER FOR DSSN 5317, AND REQUESTS AN
ADVANCE DECISION AS TO WHETHER HE MAY MAKE A PAYMENT TO HIS PREDECESSOR
(UNNAMED) FROM HIS PREDECESSOR'S ACCOUNT IN REIMBURSEMENT OF $20 PAID TO
THE GOVERNMENT BY SAID PREDECESSOR IN RESTITUTION OF A SHORTAGE OF THAT
AMOUNT IN HIS ACCOUNT FOR THE MAY 1971 PAYDAY OF TROOPS. THE
COMMUNICATION ALSO STATES THAT FURTHER INVESTIGATION OF THE MATTER IS IN
PROGRESS.
AUTHORITY FOR REIMBURSEMENT TO ACCOUNTABLE OFFICERS IN CASES OF THIS
NATURE IS CONTAINED IN 31 U.S.C. 95A, WHICH PROVIDES AS FOLLOWS:
"WHENEVER (1) ANY DISBURSING OFFICER OF THE ARMY, NAVY, AIR FORCE, OR
MARINE CORPS INCURS OR HAS INCURRED A PHYSICAL LOSS OR DEFICIENCY OF ANY
GOVERNMENT FUNDS, VOUCHERS, RECORDS, OR PAPERS IN HIS CHARGE AND (2) THE
SECRETARY OF THE DEPARTMENT CONCERNED DETERMINES THAT SUCH LOSS OR
DEFICIENCY OCCURRED WHILE THE OFFICER WAS IN LINE OF HIS DUTY AND THAT
SUCH LOSS OR DEFICIENCY OCCURRED WITHOUT FAULT OR NEGLIGENCE ON HIS
PART, THE GENERAL ACCOUNTING OFFICE SHALL RELIEVE SUCH OFFICER OF THE
LIABILITY FOR SUCH LOSS OR DEFICIENCY, OR AUTHORIZE THE REIMBURSEMENT,
FROM ANY APPROPRIATION OR FUND MADE AVAILABLE FOR THAT PURPOSE, OF
AMOUNTS PAID BY OR ON BEHALF OF SUCH OFFICER IN RESTITUTION OF SUCH
OFFICER IN RESTITUTION OF SUCH LOSS OR DEFICIENCY. ANY DETERMINATION
MADE BY THE SECRETARY OF THE DEPARTMENT CONCERNED UNDER THIS SECTION
SHALL BE CONCLUSIVE UPON THE GENERAL ACCOUNTING OFFICE. *** "
SINCE WE MUST COMPLY WITH THE PROVISIONS OF THE ABOVE STATUTE, WE
CANNOT AUTHORIZE THE PAYMENT IN QUESTION IN THE ABSENCE OF THE
DETERMINATIONS BY THE SECRETARY REQUIRED THEREBY. HENCE, IT WOULD
APPEAR THAT RESOLUTION OF THIS MATTER MUST WAIT UPON COMPLETION OF THE
INVESTIGATION REFERRED TO IN THE COMMUNICATION AND THE DETERMINATION OF
THE SECRETARY.
ATTENTION IS INVITED TO THE PROVISIONS OF PARAGRAPH 28.14(3) OF TITLE
7 OF THE GAO MANUAL FOR GUIDANCE OF FEDERAL AGENCIES (7 GAO 28.14(3)),
WHICH PROVIDES AS FOLLOWS:
"(3) ADMINISTRATIVE RESOLUTION OF IRREGULARITIES.
"ANY IRREGULARITY AS DEFINED IN PARAGRAPH 28.14(1) 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 GENERAL ACCOUNTING OFFICE 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 GENERAL ACCOUNTING OFFICE OR TO FRAUD AND UNUSUAL
IRREGULARITIES REPORTED UNDER SUBPARAGRAPH 28.14(2)D."
IN VIEW OF THE AMOUNT INVOLVED, THIS MATTER WOULD APPEAR TO BE FOR
RESOLUTION BY ADMINISTRATVE ACTION FOLLOWING COMPLETION OF THE
INVESTIGATION AND THE DETERMINATION BY THE SECRETARY.
B-173806, AUG 16, 1971
BID PROTEST - BID RESPONSIVENESS - LOT BIDDING
DECISION REGARDING REJECTION OF BID OF WILLAMETTE IRON & STEEL CO.
UNDER IFB ISSUED BY NAVAL SHIP SYSTEMS COMMAND FOR DRYDOCKING AND
TOPSIDE REPAIRS TO THE USS MARS.
THE CONTRACTING OFFICER REJECTED WILLAMETTE'S BID AS NONRESPONSIVE AS
THE IFB REQUIRED A BID ON LOT 3 TO BE ACCOMPANIED BY BIDS ON LOTS 1 AND
2, AND WILLAMETTE FAILED TO BID ON LOT 2.
THE PURPOSE OF BIDDING BY LOTS WAS TO PROVIDE SMALLER YARDS THAT
WOULD NOT HAVE THE CAPABILITY TO BID ON THE TOTAL JOB AN OPPORTUNITY TO
COMPETE FOR A PORTION OF THE WORK. HOWEVER, SINCE NO SMALL SHIPYARD IS
IN CONTENTION FOR AWARD, THE PURPOSE SOUGHT TO BE ACHIEVED BY LOT
BIDDING HAS NOT BEEN VIOLATED. ACCORDINGLY, FAILURE OF WILLAMETTE TO
BID ON LOT 2 MAY BE REGARDED AS AN IMMATERIAL DEVIATION AND THEY MAY BE
CONSIDERED FOR THE AWARD OF LOT 3.
TO MR. SECRETARY:
REFERENCE IS MADE TO LETTER 00J:AF:GW SER 640-00J OF AUGUST 9, 1971,
FROM THE COUNSEL, NAVAL SHIP SYSTEMS COMMAND, REQUESTING A DECISION
REGARDING THE REJECTION OF THE BID OF WILLAMETTE IRON & STEEL CO. UNDER
INVITATION FOR BIDS NO. N62798-72-B-001 FOR DRYDOCKING AND TOPSIDE
REPAIRS TO THE U.S.S. MARS (AFS-1).
THE INVITATION SOLICITED BIDS FOR DRYDOCKING WORK ALONE (LOT 1),
TOPSIDE REPAIRS ALONE (LOT 2), AND FOR THE TOTAL OF LOT 1 AND LOT 2 WORK
(LOT 3). THE BIDDING INFORMATION AND REQUIREMENTS OF THE INVITATION ARE
AS FOLLOWS:
"(A) THE GOVERNMENT RESERVES THE RIGHT TO MAKE AWARD TO BIDDERS ON
ANY COMBINATION OF LOTS 1 THROUGH 3 AS MAY BE IN THE BEST INTEREST OF
THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.
"(B) BIDS WILL NOT BE CONSIDERED WHICH DO NOT CONTAIN THE INFORMATION
CALLED FOR IN SUBPARAGRAPH (C) AND/OR WHICH ARE NOT SUBMITTED IN STRICT
ACCORDANCE WITH SUBPARAGRAPH (D).
"(C) BY SIGNING AND SUBMITTING THE BID, THE BIDDER REPRESENTS THAT:
"(1) HE IS QUALIFIED AND CAN ......, CANNOT ......, PERFORM THE
TOPSIDE WORK REQUIRED WITHIN THE SPECIFIED PERIOD.
"(2) HE IS QUALIFIED AND CAN ......, CANNOT ......, PERFORM THE
DRY-DOCK WORK WITHIN THE SPECIFIED PERIOD.
"(3) HE IS QUALIFIED AND CAN ......, CANNOT ......, PERFORM THE TOTAL
TOPSIDE AND DRY-DOCK WORK REQUIRED.
"(D) NO BIDDER WILL BE AWARDED A GREATER AMOUNT OF SHIP WORK THAN HE
HAS INDICATED A CAPABILITY FOR PERFORMING UNDER SUBPARAGRAPH (C) ABOVE.
*** ALL BIDDERS INDICATING A CAPABILITY UNDER (C)(3) MUST SUBMIT BIDS ON
ALL LOTS."
CONCERNING THE REQUIREMENT THAT BIDS ON LOT 3 ALSO BE ACCOMPANIED BY
BIDS ON LOT 1 AND LOT 2, THE SHIP REPAIR CONTRACTING MANUAL PROVIDES
THAT "THE PRIMARY PURPOSE OF LOT BIDDING IS TO ENABLE SMALLER YARDS TO
PARTICIPATE IN THE PERFORMANCE OF SPECIFIC PORTIONS OF THE WORK IN CASES
WHERE THE SCOPE OF THE TOTAL JOB WOULD BE BEYOND THEIR INDIVIDUAL
CAPACITIES."
FIVE BIDS WERE RECEIVED UNDER THE INVITATION. WILLAMETTE IRON &
STEEL CO. AND TODD SHIPYARDS CORPORATION, EACH HAVING THE CAPABILITIES
FOR THE TOTAL JOB, ARE THE ONLY BIDDERS THAT ARE IN THE REALM OF
CONSIDERATION FOR AN AWARD ON LOT 3. THE BIDS FROM THE TWO COMPANIES
ARE:
LOT 1 LOT 2 LOT 3
WILLAMETTE $596,000 "NO BID" $1,973,0
TODD 357,000 $1,714,000 2,071,0
THE CONTRACTING OFFICER REJECTED THE WILLAMETTE BID AS NONRESPONSIVE
BECAUSE IT FAILED TO BID ON LOT 2 EVEN THOUGH IT INDICATED IN
SUBPARAGRAPH (C), ABOVE, THAT IT HAD THE CAPABILITY TO PERFORM THE TOTAL
TOPSIDE AND DRYDOCK WORK.
AS INDICATED IN THE SHIP REPAIR CONTRACTING MANUAL, THE PURPOSE OF
REQUIRING BIDS ON A LOT BASIS IS TO PROVIDE SMALLER YARDS THAT WOULD NOT
HAVE THE CAPABILITY TO BID ON THE TOTAL JOB AN OPPORTUNITY TO COMPETE
FOR A PORTION OF THE WORK. HOWEVER, SINCE NO SMALL SHIPYARD IS IN
CONTENTION FOR AWARD, THE PURPOSE SOUGHT TO BE ACHIEVED BY LOT BIDDING
WOULD NOT BE VIOLATED. ACCORDINGLY, THE FAILURE OF WILLAMETTE TO BID ON
LOT 2 MAY BE REGARDED AS AN IMMATERIAL DEVIATION. THEREFORE, WILLAMETTE
MAY BE CONSIDERED FOR AWARD OF LOT 3 IF PROPER IN OTHER RESPECTS.
B-169094(1), AUG 13, 1971
BID PROTEST - SALE OF SURPLUS GOVERNMENT-OWNED VESSELS
TRANSMITTING COPIES OF DECISIONS DENYING THE PROTESTS OF UNION
MINERALS AND ALLOYS CORPORATION AND THE INSTITUTE OF SCRAP IRON & STEEL
AGAINST THE POLICIES OF THE MARITIME ADMINISTRATION REGARDING THE SALE
OF SURPLUS VESSELS FROM THE NATIONAL DEFENSE RESERVE FLEET.
ALTHOUGH THE PROTESTS WERE DENIED, THE COMP. GEN. FEELS THAT THE
FLOOR PRICE FOR SALES TO CITIZENS SHOULD BE DETERMINED ON A CURRENT
BASIS AND SHOULD INCLUDE CONSIDERATION OF ALL RELEVANT FACTORS,
INCLUDING THOSE LISTED IN SECTION 5, MERCHANT MARINE ACT OF 1920.
TO MR. GIBSON:
FURTHER REFERENCE IS MADE TO THE PROTESTS ON BEHALF OF UNION MINERALS
& ALLOYS CORPORATION AND THE INSTITUTE OF SCRAP IRON & STEEL AGAINST
SALES BY THE MARITIME ADMINISTRATION OF SURPLUS GOVERNMENT VESSELS FROM
THE NATIONAL DEFENSE RESERVE FLEET TO FOREIGNERS FOR SCRAPPING ABROAD,
WHICH WAS THE SUBJECT OF REPORTS DATED MARCH 24 AND JUNE 11, 1971, FROM
THE DEPUTY ASSISTANT SECRETARY FOR MARITIME AFFAIRS.
ENCLOSED ARE COPIES OF OUR DECISIONS OF TODAY TO THE ATTORNEYS FOR
THE PROTESTANTS. AS STATED IN OUR DECISION OF TODAY, WE BELIEVE THE
FLOOR PRICE FOR SALES TO CITIZENS SHOULD BE DETERMINED ON A CURRENT
BASIS AND INCLUDE CONSIDERATION OF ALL RELEVANT FACTORS, INCLUDING THOSE
SPECIFIED IN SECTION 5. WE FEEL THAT A REASONABLE ALLOWANCE FOR THE
COST OF REMOVAL OF BALLAST IS A RELEVANT FACTOR. IN THIS REGARD, WE
NOTE THE CONTENTION THAT THE COST OF THIS OPERATION SHOULD INCLUDE LABOR
AND OVERHEAD FOR THE ENTIRE COST OF RUNNING THE SHIPYARD AND NOT ONLY
THE 11 MEN WHO WORK AT DISMANTLING THE SHIP. ON THE OTHER HAND, YOUR
OFFICIALS HAVE INDICATED THAT ONLY THE COST OF THE 11 MEN ACTUALLY USED
IN DISMANTLING MAY BE CONSIDERED. IN REVIEWING THE FLOOR PRICE IN LIGHT
OF CURRENT CONDITIONS, WE SUGGEST THAT THE REVIEW INCLUDE CONSIDERATION
OF A PROPER ALLOWANCE FOR REMOVAL OF BALLAST.
B-169094(2), AUG 13, 1971
BID PROTEST - SALE OF SURPLUS GOVERNMENT-OWNED VESSELS
DENIAL OF PROTEST ON BEHALF OF UNION MINERALS AND ALLOYS CORPORATION
AGAINST THE REJECTION BY THE MARITIME ADMINISTRATION (MAR AD) OF THEIR
HIGH BIDS FOR 15 GOVERNMENT-OWNED SURPLUS VESSELS FROM THE NATIONAL
DEFENSE RESERVE FLEET. PROTESTANT CONTENDS THAT MAR AD'S ACTIONS WERE
UNFAIR AND DISCRIMINATORY, AND WERE IN VIOLATION OF THE PREFERENCE
PROVISIONS OF SECTIONS 5 AND 6, MERCHANT MARINE ACT OF 1920, AND SECTION
809, MERCHANT MARINE ACT OF 1936.
THE COMP. GEN. BELIEVES THAT THE LANGUAGE OF THE STATUTES IS A CLEAR
INDICATION OF A CONGRESSIONAL INTENT TO VEST IN MAR AD CONSIDERABLE
DISCRETION IN THE DISPOSAL OF SURPLUS VESSELS. IN THESE CIRCUMSTANCES,
GAO CAN PERCEIVE OF NO BASIS UPON WHICH IT CAN BE CONCLUDED THAT THERE
HAS BEEN AN ABUSE OF THIS DESCRETION.
TO BARRETT KNAPP SMITH SCHAPIRO & SIMON:
FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF UNION MINERALS
AND ALLOYS CORPORATION AGAINST REJECTION BY THE MARITIME ADMINISTRATION
(MARAD) OF ITS HIGH BIDS FOR 15 GOVERNMENT-OWNED SURPLUS VESSELS FROM
THE NATIONAL DEFENSE RESERVE FLEET.
YOU CONTEND THAT REJECTION OF UNION MINERALS' BIDS WAS UNFAIR AND
DISCRIMINATORY, AND THAT THE PROPOSED SALE OF THESE VESSELS TO
FOREIGNERS WOULD BE IN DEROGATION OF THE PREFERENCE TO BE AFFORDED
UNITED STATES CITIZENS UNDER SECTIONS 5 AND 6 OF THE MERCHANT MARINE ACT
OF 1920, 46 U.S.C. 864 AND 865, AND SECTION 809 OF THE MERCHANT MARINE
ACT OF 1936, 46 U.S.C. 1213, CITING IN THIS REGARD OUR DECISION
B-169094, SEPTEMBER 4, 1970, 50 COMP. GEN. ___. IN ADDITION TO THE
SPECIFIC PROTEST RELATED TO THE 15 VESSELS, YOU ALSO CONTEND THAT
MARAD'S OFFERING OF VESSELS TO CITIZENS AT ACCELERATED RATES EFFECTIVELY
PRECLUDES CITIZENS FROM ABSORBING THE VESSELS AND IS IN DEROGATION OF
THE REQUIRED PREFERENCE.
SEVEN OF THE VESSELS INVOLVED IN THIS PROTEST ARE LOCATED IN THE
MOBILE, ALABAMA RESERVE FLEET AND WERE OFFERED FOR SALE ON NOVEMBER 3
AND DECEMBER 1, 1970, UNDER INVITATIONS FOR BIDS NO. PD-X-890 AND NO.
PD-X-892, RESPECTIVELY. FIVE OF THESE VESSELS CONTAINED CONCRETE
BALLAST. THE TWO VESSELS NOT CONTAINING CONCRETE BALLAST WERE EACH
PAIRED WITH A VESSEL WITH BALLAST AND BIDS REQUIRED ON EACH PAIR. UNION
MINERALS BID $32,351.54, EACH, ON TWO OF THE VESSELS WITH BALLAST AND
$30,612.54 ON THE OTHER, AND $71,765.08 ON EACH PAIR. THE PRICE FOR
EACH PAIR CONSISTED OF $30,612.54 FOR THE VESSEL WITH BALLAST AND
$41,152.54 FOR THE VESSEL WITHOUT BALLAST. UNION MINERALS' BID UNDER
PD-X-892 FOR A SINGLE VESSEL WITHOUT BALLAST IN THE AMOUNT OF $41,152.54
WAS ACCEPTED. THE REMAINING EIGHT VESSELS, ALL WITH BALLAST, INVOLVED IN
THE PROTEST ARE LOCATED IN THE JAMES RIVER RESERVE FLEET AND WERE
OFFERED ON JANUARY 12, 1971, UNDER INVITATION FOR BIDS NO. PD-X-895.
UNION MINERALS WAS THE ONLY BIDDER ON THESE 8 VESSELS AND ITS BID OF
$30,511.54, EACH, WAS REJECTED AS TOO LOW. FOUR OF THE VESSELS FROM THE
MOBILE RESERVE FLEET HAVE NOW BEEN OFFERED TO FOREIGN BIDDERS UNDER
PD-X-897, AND YOU ANTICIPATE THE SAME ACTION WITH RESPECT TO THE 8
VESSELS IN THE JAMES RIVER RESERVE FLEET.
YOU STATE THAT IN THE PAST MARAD'S MINIMUM DOMESTIC PRICE FOR THE
TYPE VESSEL INVOLVED WITHOUT BALLAST HAS BEEN APPROXIMATELY $40,000;
THAT HANDLING A VESSEL WITH BALLAST AND REMOVING THE BALLAST THEREFROM
INCREASES SCRAPPING COSTS FROM $10,000 TO $14,000; THAT UNION MINERALS'
PRICE FOR THE VESSELS WITH BALLAST WAS REDUCED ACCORDINGLY; AND THAT
MARAD'S REFUSAL TO MAKE ANY ALLOWANCE FOR THIS ADDITIONAL COST IS
DISCRIMINATORY. IN SUPPORT OF YOUR CONTENTION CONCERNING THE EXTRA COST
INVOLVED WHERE A VESSEL CONTAINS BALLAST, YOU HAVE SUBMITTED THE
AFFIDAVIT OF JACK P. HECHT, MANAGER OF OPERATIONS AT UNION MINERALS'
SHIP SCRAPPING FACILITY AT PANAMA CITY, FLORIDA. ACCORDING TO MR.
HECHT, THE SCRAPPING OF VESSELS WITH CONCRETE BALLAST REQUIRES TWO EXTRA
DAYS. HE ESTIMATES THE DAILY LABOR COST OF RUNNING THE YARD AT $3,500
AND OVERHEAD AND SUPPLY COSTS AT 100 PERCENT OF THE LABOR COST, FOR
DAILY OPERATING COSTS OF $7,000, FOR TOTAL ADDITIONAL COSTS OF ABOUT
$14,000 FOR TWO DAYS. THESE FIGURES ARE BASED NOT ONLY ON THE LABOR AND
OVERHEAD RATES FOR THE 11 MAN CREW ENGAGED IN THE ACTUAL BALLAST REMOVAL
OPERATION, BUT INCLUDE SUCH FIGURES FOR THE ENTIRE YARD CREW OF 155 MEN.
YOU ALSO CONTEND THAT IN THE PAST MARAD HAS RECOGNIZED THAT
ADDITIONAL COSTS OF MORE THAN $10,000 ARE INVOLVED WHEN A VESSEL
CONTAINS CONCRETE BALLAST. IN THIS CONNECTION, YOU POINT OUT THAT ON
MAY 13, 1970, UNDER PD-X-865, MARAD AWARDED TWO VESSELS CONTAINING
CONCRETE TO UNION MINERALS AT A COMBINED PRICE OF $61,202.08, AS
COMPARED WITH A PRICE OF $43,217.54 FOR THE AWARD TO UNION MINERALS OF A
SINGLE VESSEL OF THE SAME TYPE WITHOUT CONCRETE. YOU NOTE THAT THE
PRICE FOR EACH VESSEL CONTAINING CONCRETE WAS $12,616 LESS THAN THE
PRICE OF THE ONE VESSEL WITHOUT CONCRETE. ALSO, YOU POINT OUT THAT
UNDER THE SAME INVITATION MARAD AWARDED TWO SHIPS CONTAINING CONCRETE TO
SOUTHERN SCRAP AT A COMBINED PRICE OF $63,777.76, SOME $12,000 LESS PER
VESSEL THAN THE PRICE FOR A COMPARABLE VESSEL WITHOUT CONCRETE. IN
ADDITION, YOU REFER TO A MEMORANDUM DATED NOVEMBER 19, 1969, FROM THE
ACTING CHIEF, OFFICE OF SHIP OPERATIONS, TO THE ADMINISTRATOR, FROM
WHICH YOU QUOTE THE STATEMENT, "IT IS OUR JUDGMENT THAT THE MINIMUM
ACCEPTABLE BID IN THE PRESENT DOMESTIC MARKET IS $40,000 PER UNBALLASTED
LIBERTY SHIP."
YOU ALSO TAKE ISSUE WITH THE $40,000 FLOOR PRICE, CONTENDING THAT
WHILE THIS MINIMUM PRICE HAS REMAINED CONSTANT THROUGHOUT 1970 AND 1971,
CHANGING CONDITIONS IN THE MARKET AND THE STATUTORY PREFERENCE
REQUIREMENT DICTATES A SUBSTANTIAL REDUCTION. THE CHANGING CONDITIONS
REFERRED TO ARE THE ACCELERATED RATE OF DISPOSAL, RAPID DEPRESSION OF
SCRAP PRICES BEGINNING IN 1971, AND INCREASED DOMESTIC LABOR RATES. YOU
ALSO POINT OUT THAT NO FLOOR PRICE HAS BEEN ESTABLISHED FOR SALES TO
FOREIGNERS. FURTHER, YOU CONTEND THAT MARAD HAS DISCRIMINATED AGAINST
DOMESTIC FIRMS BY REFUSING TO PERMIT THEM EXTENSIONS OF TIME IN WHICH TO
TAKE DELIVERY OF VESSELS FROM THE HUDSON RIVER FLEET, THEREBY
DISCOURAGING BIDS, AND GRANTING FOREIGN FIRMS EXTENSIONS AFTER THEY WERE
SUCCESSFUL BIDDERS FOR THOSE VESSELS.
IT IS MARAD'S POSITION THAT UNITED STATES CITIZENS ARE BEING GRANTED
PREFERENCE CONSONANT WITH APPLICABLE STATUTES AND ITS ADMINISTRATIVE
RESPONSIBILITY WITH RESPECT TO THE NATIONAL DEFENSE RESERVE FLEET. THE
INCREASED RATE OF SCRAP SALES FROM THE RESERVE FLEET IS SAID TO BE A
MATTER OF NECESSITY. IT IS MARAD'S GOAL TO DISPOSE OF THE SURPLUS SHIPS
AS SOON AS POSSIBLE IN ORDER TO REDUCE THE SUBSTANTIAL COSTS OF
MAINTENANCE OF VESSELS NO LONGER NEEDED AND TO AVOID THE SUBSTANTIAL
EXPENSE WHICH WILL RESULT FROM THEIR SINKING. IT IS REPORTED THAT THE
FREQUENCY OF HOLING INCIDENTS IS SHARPLY INCREASING BECAUSE OF THE
DISCONTINUATION OF PRESERVATION WORK, THE LACK OF UNDERBODY CATHODIC
PROTECTION, AND UNFAVORABLE WATER CONDITIONS. IN THIS CONNECTION, MARAD
CITES 23 CASES OF UNDERWATER CORROSION DAMAGE TO THE SURPLUS VESSELS IN
THE HUDSON AND JAMES RIVER FLEETS.
WITH REGARD TO WHETHER IT HAS EXERTED "DILIGENT EFFORTS" TO AFFORD
CITIZENS PREFERENCE, MARAD POINTS OUT THAT THE SURPLUS VESSELS SOLD FROM
THE RESERVE FLEETS HAVE, WITHOUT EXCEPTION, BEEN OFFERED FIRST AND
EXCLUSIVELY TO DOMESTIC SHIPBREAKERS, AND NO BIDS FROM THE DOMESTIC
FIRMS HAVE BEEN REJECTED WHEN THE PRICES OFFERED ARE CONSIDERED FAIR,
EVEN THOUGH SUBSTANTIALLY HIGHER PRICES COULD BE OBTAINED FROM FOREIGN
FIRMS. IT IS MARAD'S POSITION THAT WHAT CONSTITUTES FAIR PRICES ON THE
DOMESTIC MARKET IS A MATTER FOR IT TO DETERMINE IN LIGHT OF THE SCRAP
MARKET GENERALLY. IN THIS CONNECTION, MARAD POINTS OUT THAT BASED UPON
ITS REVIEW OF THE DOMESTIC SCRAP MARKET A "FLOOR PRICE" OF $40,000, HAS
BEEN ESTABLISHED FOR LIBERTY SHIPS AND CONTINUING SALES AT THIS PRICE
INDICATE THE REASONABLENESS OF THIS FIGURE. MARAD ALSO CITES AN
INCREASE FROM $31.54 IN 1966 TO $43.36 IN 1970 IN SCRAP EXPORT PRICES
WITHOUT A COMMENSURATE INCREASE IN DOMESTIC BIDS AS INDICATING DOUBT AS
TO THE VALIDITY OF A MINIMUM ACCEPTABLE PRICE OF ONLY $40,000.
THEREFORE, IT IS REPORTED THAT A MINIMUM PRICE RELATED TO SCRAP EXPORT
PRICES IS NOW BEING DEVELOPED. IT HAS NOT BEEN CONSIDERED NECESSARY TO
ESTABLISH A FLOOR PRICE FOR FOREIGN SALES AS THE PRICES RECEIVED HAVE
BEEN FROM TWO TO TWO AND ONE-HALF TIMES MORE THAN THE DOMESTIC SALES
PRICES.
MARAD STATES THAT IT HAS FROM TIME TO TIME GRANTED BOTH DOMESTIC AND
FOREIGN FIRMS EXTENSIONS IN TAKING DELIVERY OF VESSELS. AS AN EXAMPLE,
IT IS REPORTED THAT UNION MINERALS WAS GRANTED AN EXTENSION OF ABOUT 5
MONTHS BEYOND THE CONTRACT DELIVERY DEADLINE TO WITHDRAW 16 VESSELS FROM
THE HUDSON RIVER FLEET. THE LAST GROUP OF 16 VESSELS IN THE HUDSON
RIVER FLEET WERE SOLD TO A FOREIGN FIRM ON DECEMBER 23, 1970. THE
VESSELS WERE NOT REMOVED WITHIN THE TIME ALLOWED. HOWEVER, IT IS
REPORTED THE PURCHASER IS BEARING THE FULL COST OF CUSTODY AND
MAINTENANCE OF THE VESSELS THAT REMAIN AT THE SITE.
WITH REGARD TO YOUR CITATION OF SALES UNDER PD-X-865 AS INDICATING
RECOGNITION BY MARAD THAT ADDITIONAL COSTS OF MORE THAN $10,000 ARE
INVOLVED WHEN VESSELS CONTAIN CONCRETE BALLAST, IT IS MARAD'S POSITION
THAT THE SALE WAS CONSUMMATED AT A FIGURE BELOW THE FLOOR PRICE NOT IN
RECOGNITION OF AN ALLOWANCE FOR CONCRETE BALLAST, BUT BECAUSE AN
IMPENDING HAZARD NECESSITATED EXPEDITIOUS REMOVAL OF THE VESSELS. THEY
WERE SOLD PRIOR TO THE 1970 HURRICANE SEASON BECAUSE THEY WERE LOCATED
ABOVE A RAILROAD BRIDGE AND THE UNRELIABLE CONDITION OF THEIR MOORINGS
CONSTITUTED A SERIOUS THREAT TO THE BRIDGE. MARAD ALSO REPORTS THAT
UNION MINERALS PURCHASED 25 CONCRETE BALLASTED VESSELS FOR OVER $40,000
EACH DURING THE PERIOD FROM FEBRUARY 1968 TO JULY 1970. MARAD
ACKNOWLEDGES THAT ALTHOUGH IT IS TRUE UNION MINERALS' BID OF $30,511.54
FOR 8 CONCRETE BALLASTED VESSELS UNDER PD-X-895 WAS REJECTED, IT IS NOT
MENTIONED THAT IT ALSO BID $30,511.54 FOR 3 UNBALLASTED VESSELS AND
$20,511.54 FOR THE 12TH VESSEL UNDER THE OFFERING.
MARAD DOES NOT CONCEDE THAT THERE SHOULD BE ANY ALLOWANCE FOR
BALLAST. FURTHERMORE, IT TAKES ISSUE WITH YOUR CLAIM OF $10,000 TO
$14,000 ADDITIONAL COSTS FOR HANDLING VESSELS WITH BALLAST. MARAD SAYS
THAT THROUGH INFORMAL DISCUSSIONS WITH SCRAPPERS OTHER THAN UNION
MINERALS IT HAS BEEN ADVISED THAT THE COST TO REMOVE POURED CONCRETE
BALLAST IS ABOUT $10 PER TON, OR $1,800 TO $2,000 TO REMOVE THE AVERAGE
180 TO 200 TONS OF BALLAST IN A LIBERTY VESSEL. IN CONTRAST WITH THESE
FIGURES, MARAD POINTS OUT THAT YOUR CLAIM OF A COST OF $10,000 TO
$14,000 AMOUNTS TO $50 TO $70 PER TON. HOWEVER, IT IS MARAD'S POSITION
THAT BASED ON THE INFORMATION IN MR. HECHT'S AFFIDAVIT OF APRIL 16,
1971, THE RATE FOR UNION MINERALS' REMOVAL OF BALLAST IS ABOUT $8 PER
TON, OR ABOUT $1400 TO $1600 TO REMOVE THE AVERAGE 180 TO 200 TONS OF
BALLAST. ACCEPTING UNION MINERALS' STATEMENT THAT IT TAKES AN 11 MAN
CREW TWO DAYS TO REMOVE THE BALLAST, MARAD HAS CONVERTED THIS TO 176
MANHOURS. USING THE LABOR RATE OF $4 PER HOUR PLUS 100 PERCENT FOR
OVERHEAD, THE HOURLY RATE IS $8 FOR A TOTAL OF $1,408. ASSUMING 180
TONS, THE RATE PER TON WOULD BE ABOUT $8.
IN DECISION B-169094, SEPTEMBER 4, 1970, 50 COMP. GEN. ___, THE ISSUE
WAS WHETHER CITIZENS OF THE UNITED STATES WERE ENTITLED TO A PREFERENCE
IN THE SALE FOR SCRAPPING OF GOVERNMENT-OWNED SURPLUS VESSELS FROM THE
NATIONAL DEFENSE RESERVE FLEET. WE CONCLUDED THEREIN THAT UNDER
SECTIONS 5 AND 6 OF THE 1920 ACT AND SECTION 809 OF THE 1936 ACT THERE
IS A LEGAL REQUIREMENT FOR SUCH PREFERENCE. THE QUESTION HERE IS
WHETHER THE ANTICIPATED SALE TO FOREIGN FIRMS OF THE 15 VESSELS FOR
WHICH UNION MINERALS' BIDS WERE REJECTED IS IN VIOLATION OF THE LEGAL
REQUIREMENT FOR PREFERENCE; AND WHETHER THE RATE AT WHICH THESE VESSELS
ARE BEING DISPOSED OF EFFECTIVELY DENIES CITIZENS OF THE UNITED STATES
THE LEGAL PREFERENCE TO WHICH THEY ARE ENTITLED.
SECTION 6 OF THE 1920 ACT AUTHORIZES AND EMPOWERS MARAD TO SELL TO
ALIENS, AT SUCH PRICES AND ON SUCH TERMS AND CONDITIONS AS IT MAY
DETERMINE, NOT INCONSISTENT WITH THE PROVISIONS OF SECTION 5, IF AFTER
DILIGENT EFFORT IT HAS BEEN UNABLE TO SELL, IN ACCORDANCE WITH THE TERMS
AND CONDITIONS OF SECTION 5, SUCH VESSELS TO CITIZENS OF THE UNITED
STATES. SECTION 5 AUTHORIZES AND DIRECTS MARAD TO SELL, CONSISTENT WITH
GOOD BUSINESS METHODS, THE DESIGNATED VESSELS AT SUCH PRICES AND ON SUCH
TERMS AND CONDITIONS AS IT MAY PRESCRIBE. WITH REGARD TO FIXING THE
SALES PRICE THE STATUTE PROVIDES THAT MARAD SHALL TAKE INTO
CONSIDERATION, AMONG OTHER THINGS, THE PREVAILING DOMESTIC AND FOREIGN
MARKET PRICE OF, THE AVAILABLE SUPPLY OF, THE DEMAND FOR VESSELS, AND
ANY OTHER FACTS OR CONDITIONS THAT WOULD INFLUENCE A PRUDENT, SOLVENT
BUSINESS MAN IN THE SALE OF SIMILAR VESSELS OR PROPERTY WHICH HE IS NOT
FORCED TO SELL.
ALTHOUGH THE LEGISLATIVE HISTORY OF FOREGOING STATUTES PROVIDES NO
ASSISTANCE IN THEIR INTERPRETATION, WE BELIEVE THE LANGUAGE OF THE
STATUTES IS A CLEAR INDICATION OF A CONGRESSIONAL INTENT TO VEST IN
MARAD CONSIDERABLE DISCRETION IN THE DISPOSAL OF SURPLUS VESSELS. WHILE
SECTION 6 OF THE 1920 ACT CONDITIONS SALES TO FOREIGNERS UPON FIRST
MAKING A "DILIGENT EFFORT" TO SELL TO CITIZENS, IN ACCORDANCE WITH THE
TERMS AND CONDITIONS OF SECTION 5, NO WHERE IS "DILIGENT EFFORT"
DEFINED. THE ONLY SPECIFIC CONDITION OF SECTION 5 RELATES TO THE FIXING
OF A SALE PRICE, WHICH IS TO INCLUDE CONSIDERATION OF VARIOUS FACTORS.
NEITHER SECTION INCLUDES ANY RESTRICTION OR GUIDELINE AS TO THE RATE OF
DISPOSAL. IN VIEW THEREOF, WE DO NOT BELIEVE IT WOULD BE PROPER FOR OUR
OFFICE TO OBJECT TO MARAD'S CURRENT PROGRAM OF DISPOSAL OF SURPLUS
VESSELS IN THE ABSENCE OF A CLEAR INDICATION THAT SUCH ACTION WAS
ARBITRARY OR CAPRICIOUS. IN THE CIRCUMSTANCES, HOWEVER, WE PERCEIVE OF
NO BASIS UPON WHICH WE COULD PROPERLY CONCLUDE THAT THERE HAS BEEN AN
ABUSE OF THE DISCRETION PERMITTED.
MARAD HAS STATED A SOUND BASIS FOR ACCELERATING THE RATE OF DISPOSAL,
AND WE WOULD NOT BE JUSTIFIED IN ASSUMING IN THE ABSENCE OF SUFFICIENT
PROOF THAT THIS IS A SUBTERFUGE TO PERMIT IT TO SELL TO FOREIGNERS. WE
BELIEVE MARAD'S POLICY OF FIRST OFFERING CITIZENS THE EXCLUSIVE
OPPORTUNITY TO BUY THE VESSELS AT A MINIMUM PRICE IS CONSISTENT WITH THE
DILIGENT EFFORT REQUIRED. OF COURSE, WE BELIEVE THE FLOOR PRICE FOR
SALES TO CITIZENS SHOULD BE DETERMINED ON A CURRENT BASIS AND INCLUDE
CONSIDERATION OF ALL RELEVANT FACTORS, INCLUDING THOSE SPECIFIED IN
SECTION 5. IN THIS REGARD, WE FEEL THAT A REASONABLE ALLOWANCE FOR THE
COST OF REMOVAL OF BALLAST IS A RELEVANT FACTOR. HOWEVER, WE ARE UNABLE
TO CONCLUDE THAT REJECTION OF UNION MINERALS' BIDS OF ALMOST $10,000
BELOW THE FLOOR PRICE WAS ARBITRARY OR CAPRICIOUS. AS INDICATED
PREVIOUSLY, MARAD IS REEXAMINING THE FLOOR PRICE IN LIGHT OF CURRENT
CONDITIONS. WE ARE SUGGESTING IN OUR LETTER OF TODAY TO THE
ADMINISTRATOR, COPY ENCLOSED, THAT THIS REVIEW INCLUDE CONSIDERATION OF
A PROPER ALLOWANCE FOR REMOVAL OF BALLAST.
ACCORDINGLY, YOUR PROTEST IS DENIED.
B-169094(3), AUG 13, 1971
SALE OF RESERVE FLEET VESSELS TO FOREIGN NATIONALS
DENIAL OF PROTEST ON BEHALF OF THE INSTITUTE OF SCRAP IRON & STEEL
AGAINST SALES BY THE MARITIME ADMINISTRATION (MAR AD) OF SURPLUS
GOVERNMENT VESSELS FROM THE NATIONAL DEFENSE RESERVE FLEET TO FOREIGNERS
FOR SCRAPPING ABROAD. PROTESTANT CONTENDS THAT MAR AD'S POLICIES
CONSTITUTE A CLEAR VIOLATION OF SECTIONS 5 AND 6 OF THE MERCHANT MARINE
ACT OF 1920, AND SECTION 809 OF THE MERCHANT MARINE ACT OF 1936.
THE COMP. GEN. BELIEVES THAT THE LANGUAGE OF THE STATUTES IS A CLEAR
INDICATION OF CONGRESSIONAL INTENT TO VEST IN MAR AD CONSIDERABLE
DISCRETION IN THE DISPOSAL OF SURPLUS VESSELS. FROM THIS RECORD, IT
APPEARS THAT THE ONLY QUESTIONABLE EXERCISE OF THAT DISCRETION BY MAR AD
LIES IN THE ESTABLISHMENT OF THE FLOOR PRICE FOR SALES TO CITIZENS, AND
MAR AD HAS INDICATED THAT THEY ARE RE-EXAMINING THE FLOOR PRICE IN LIGHT
OF CURRENT CONDITIONS.
TO BARRETT KNAPP SMITH SCHAPIRO & SIMON:
FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF THE INSTITUTE
OF SCRAP IRON & STEEL AGAINST SALES BY THE MARITIME ADMINISTRATION
(MARAD) OF SURPLUS GOVERNMENT VESSELS FROM THE NATIONAL DEFENSE RESERVE
FLEET TO FOREIGNERS FOR SCRAPPING ABROAD.
IT IS YOUR CONTENTION THAT MARAD'S PROGRAM OF SALES TO FOREIGNERS IS
IN CLEAR VIOLATION OF THE PREFERENCE TO BE AFFORDED UNITED STATES
CITIZENS UNDER SECTIONS 5 AND 6 OF THE MERCHANT MARINE ACT OF 1920, 46
U.S.C. 864 AND 865, AND SECTION 809 OF THE MERCHANT MARINE ACT OF 1936,
46 U.S.C. 1213, CITING IN THIS REGARD OUR DECISION, B-169094, SEPTEMBER
4, 1970, 50 COMP. GEN. ___.
IT IS YOUR CONTENTION THAT, WITHOUT JUSTIFICATION, MARAD HAS
ACCELERATED THE RATE OF OFFERINGS OF SURPLUS VESSELS FAR BEYOND THE
CAPACITY OF DOMESTIC FIRMS TO ABSORB THEM, AND HAS FAILED TO REDUCE ITS
"FLOOR PRICE" OF $40,000 PER VESSEL IN OFFERINGS TO CITIZENS, EVEN
THOUGH THE GREATER SUPPLY OF VESSELS DICTATES SUCH ACTION. FURTHER, YOU
CONTEND THAT THE FOREIGN FIRMS HAVE BEEN FAVORED BY ACCEPTANCE OF
REDUCED PRICES AND EXTENSIONS IN REQUIRED REMOVAL TIMES, WHILE SUCH
EXTENSIONS HAVE BEEN DENIED CITIZENS.
YOU STATE THAT THE RATE OF OFFERINGS INCREASED DRAMATICALLY IN 1970
WHEN MARAD OFFERED A TOTAL OF 296 VESSELS TO CITIZENS, WHEREAS DURING
THE PREVIOUS 12 YEARS AN AVERAGE OF 107 VESSELS WERE SOLD ANNUALLY. YOU
POINT OUT THAT BECAUSE OF THE INCREASED OFFERINGS AND FAILURE TO REDUCE
THE MINIMUM FLOOR PRICE, CITIZENS FAILED TO BID ON AT LEAST 77 VESSELS
OFFERED IN 1970 AND HAD BIDS REJECTED ON 27 VESSELS. YOU ASSERT THAT
MARAD IS CONTINUING THE ACCELERATED OFFERINGS IN 1971, AND REJECTED BIDS
ON 21 VESSELS DURING THE FIRST 3 MONTHS. ON THE OTHER HAND, YOU POINT
OUT THAT WHILE THE SALES TO FOREIGNERS HAVE BEEN INCREASING AND THEIR
AVERAGE BID PRICE DROPPING, NO MINIMUM PRICE HAS BEEN ESTABLISHED.
IT IS ALSO REPORTED THAT WHEREAS MARAD ADVISED CITIZENS THAT THEY
WOULD NOT BE PERMITTED TO LEAVE VESSELS AT ANCHORAGE BEYOND THE DELIVERY
DATE BY PAYING LIQUIDATED DAMAGES OF $15 PER DAY, FOREIGNERS HAVE BEEN
EXTENDED SUCH PERMISSION. IN THIS CONNECTION, YOU REFER TO THE SALE OF
16 VESSELS FROM THE HUDSON RIVER FLEET TO A PAKISTANIAN CONCERN.
IT IS YOUR POSITION THAT THESE CIRCUMSTANCES INDICATE THAT MARAD HAS
NOT ONLY FAILED TO MAKE A "DILIGENT EFFORT" TO SELL TO CITIZENS BEFORE
SELLING TO FOREIGNERS AS REQUIRED BY SECTION 6 OF THE 1920 ACT, BUT HAS
IN FACT FAVORED FOREIGNERS OVER CITIZENS IN ITS SCRAPPING PROGRAM.
IT IS MARAD'S POSITION THAT UNITED STATES CITIZENS ARE BEING GRANTED
PREFERENCE CONSONANT WITH APPLICABLE STATUTES AND ITS ADMINISTRATIVE
RESPONSIBILITY WITH RESPECT TO THE NATIONAL DEFENSE RESERVE FLEET. THE
INCREASED RATE OF SCRAP SALES FROM THE RESERVE FLEET IS SAID TO BE A
MATTER OF NECESSITY. MARAD'S GOAL IS TO DISPOSE OF THE SURPLUS SHIPS AS
SOON AS POSSIBLE TO REDUCE THE SUBSTANTIAL COST OF MAINTENANCE OF
VESSELS NO LONGER NEEDED AND TO AVOID THE SUBSTANTIAL EXPENSE WHICH WILL
RESULT FROM THEIR SINKING. IT IS REPORTED THAT THE FREQUENCY OF HOLING
INCIDENTS IS SHARPLY INCREASING BECAUSE OF THE DISCONTINUANCE OF
PRESERVATION WORK, THE LACK OF CATHODIC PROTECTION, AND UNFAVORABLE
WATER CONDITIONS. IN THIS CONNECTION, MARAD CITES 23 CASES OF
UNDERWATER CORROSION DAMAGE TO THE SURPLUS VESSELS IN THE HUDSON AND
JAMES RIVER FLEETS.
WITH REGARD TO WHETHER IT HAS EXERTED "DILIGENT EFFORT" TO AFFORD
CITIZENS PREFERENCE, MARAD POINTS OUT THAT THE SURPLUS VESSELS SOLD FROM
THE RESERVE FLEETS HAVE, WITHOUT EXCEPTION, BEEN OFFERED FIRST AND
EXCLUSIVELY TO DOMESTIC SHIPBREAKERS, AND NO BIDS FROM THE DOMESTIC
FIRMS HAVE BEEN REJECTED WHEN THE PRICES OFFERED ARE CONSIDERED FAIR,
EVEN THOUGH SUBSTANTIALLY HIGHER PRICES COULD BE OBTAINED FROM FOREIGN
FIRMS. IT IS MARAD'S POSITION THAT WHAT CONSTITUTES FAIR PRICES ON THE
DOMESTIC MARKET IS A MATTER FOR IT TO DETERMINE IN LIGHT OF THE SCRAPS
MARKET GENERALLY. IN THIS CONNECTION, MARAD POINTS OUT THAT BASED UPON
ITS REVIEW OF THE DOMESTIC SCRAP MARKET A "FLOOR PRICE" OF $40,000 HAS
BEEN ESTABLISHED FOR LIBERTY SHIPS AND CONTINUING SALES AT THIS PRICE
INDICATE THE REASONABLENESS OF THIS FIGURE. MARAD ALSO CITES AN
INCREASE FROM $31.54 IN 1966 TO $43.36 IN 1970 IN SCRAP EXPORT PRICES
WITHOUT A COMMENSURATE INCREASE IN DOMESTIC BIDS AS INDICATING DOUBT AS
TO THE VALIDITY OF A MINIMUM ACCEPTABLE PRICE OF ONLY $40,000.
THEREFORE, IT IS REPORTED THAT A MINIMUM PRICE RELATED TO SCRAP EXPORT
PRICES IS NOW BEING DEVELOPED. IT HAS NOT BEEN CONSIDERED NECESSARY TO
ESTABLISH A FLOOR PRICE FOR FOREIGN SALES AS THE PRICES RECEIVED HAVE
BEEN FROM TWO TO TWO AND ONE-HALF TIMES MORE THAN THE DOMESTIC SALES
PRICES.
MARAD STATES THAT IT HAS FROM TIME TO TIME GRANTED BOTH DOMESTIC AND
FOREIGN FIRMS EXTENSIONS IN TAKING DELIVERY OF VESSELS. AS AN EXAMPLE,
IT IS REPORTED THAT UNION MINERALS & ALLOYS CORPORATION WAS GRANTED AN
EXTENSION OF ABOUT 5 MONTHS BEYOND THE CONTRACT DELIVERY DEADLINE TO
REMOVE 16 VESSELS FROM THE HUDSON RIVER FLEET. THE LAST 16 VESSELS IN
THE HUDSON RIVER FLEET WERE SOLD TO A FOREIGN FIRM ON DECEMBER 23, 1970.
THE VESSELS WERE NOT REMOVED WITHIN THE TIME ALLOWED. HOWEVER, IT IS
REPORTED THAT THE PURCHASER IS BEARING THE FULL COST OF CUSTODY AND
MAINTENANCE OF THE VESSELS THAT REMAIN AT THE SITE.
IN DECISION, B-169094, SEPTEMBER 4, 1970, 50 COMP. GEN. ___, THE
ISSUE WAS WHETHER CITIZENS OF THE UNITED STATES WERE ENTITLED TO A
PREFERENCE IN THE SALE FOR SCRAPPING OF GOVERNMENT OWNED SURPLUS VESSELS
FROM THE NATIONAL DEFENSE RESERVE FLEET. WE CONCLUDED THEREIN THAT
UNDER SECTIONS 5 AND 6 OF THE 1920 ACT AND SECTION 809 OF THE 1936 ACT
THERE IS A LEGAL REQUIREMENT FOR SUCH PREFERENCE. THE QUESTION HERE IS
WHETHER THE ANTICIPATED SALE TO FOREIGN FIRMS OF THE 15 VESSELS FOR
WHICH UNION MINERALS' BIDS WERE REJECTED IS IN VIOLATION OF THE LEGAL
REQUIREMENT FOR PREFERENCE; AND WHETHER THE RATE AT WHICH THESE VESSELS
ARE BEING DISPOSED OF EFFECTIVELY DENIES CITIZENS OF THE UNITED STATES
THE LEGAL PREFERENCE TO WHICH THEY ARE ENTITLED.
SECTION 6 OF THE 1920 ACT AUTHORIZES AND EMPOWERS MARAD TO SELL TO
ALIENS, AT SUCH PRICES AND ON SUCH TERMS AND CONDITIONS AS IT MAY
DETERMINE, NOT INCONSISTENT WITH THE PROVISIONS OF SECTION 5, IF AFTER
DILIGENT EFFORT, IT HAS BEEN UNABLE TO SELL, IN ACCORDANCE WITH THE
TERMS AND CONDITIONS OF SECTION 5, SUCH VESSELS TO CITIZENS OF THE
UNITED STATES. SECTION 5 AUTHORIZES AND DIRECTS MARAD TO SELL,
CONSISTENT WITH GOOD BUSINESS METHODS, THE DESIGNATED VESSELS AT SUCH
PRICES AND ON SUCH TERMS AND CONDITIONS AS IT MAY PRESCRIBE. WITH
REGARD TO FIXING THE SALES PRICE THE STATUTE PROVIDES THAT MARAD SHALL
TAKE INTO CONSIDERATION, AMONG OTHER THINGS, THE PREVAILING DOMESTIC AND
FOREIGN MARKET PRICE OF, THE AVAILABLE SUPPLY OF, THE DEMAND FOR
VESSELS, AND ANY OTHER FACTS OR CONDITIONS THAT WOULD INFLUENCE A
PRUDENT, SOLVENT BUSINESS MAN IN THE SALE OF SIMILAR VESSELS OR PROPERTY
WHICH HE IS NOT FORCED TO SELL.
ALTHOUGH THE LEGISLATIVE HISTORY OF FOREGOING STATUTES PROVIDES NO
ASSISTANCE IN THEIR INTERPRETATION, WE BELIEVE THE LANGUAGE OF THE
STATUTES IS A CLEAR INDICATION OF A CONGRESSIONAL INTENT TO VEST IN
MARAD CONSIDERABLE DISCRETION IN THE DISPOSAL OF SURPLUS VESSELS. WHILE
SECTION 6 OF THE 1920 ACT CONDITIONS SALES TO FOREIGNERS UPON FIRST
MAKING A "DILIGENT EFFORT" TO SELL TO CITIZENS, IN ACCORDANCE WITH THE
TERMS AND CONDITIONS OF SECTION 5, NO WHERE IS "DILIGENT EFFORT"
DEFINED. THE ONLY SPECIFIC CONDITION OF SECTION 5 RELATES TO THE FIXING
OF A SALE PRICE WHICH IS TO INCLUDE CONSIDERATION OF VARIOUS FACTORS.
NEITHER SECTION INCLUDES ANY RESTRICTION OR GUIDELINE AS TO THE RATE OF
DISPOSAL. IN VIEW THEREOF, WE DO NOT BELIEVE IT WOULD BE PROPER FOR OUR
OFFICE TO OBJECT TO MARAD'S CURRENT PROGRAM OF DISPOSAL OF SURPLUS
VESSELS IN THE ABSENCE OF A CLEAR INDICATION THAT SUCH ACTION WAS
ARBITRARY OR CAPRICIOUS. IN THE CIRCUMSTANCES, HOWEVER, WE PERCEIVE OF
NO BASIS UPON WHICH WE COULD PROPERLY CONCLUDE THAT THERE HAS BEEN AN
ABUSE OF THE DISCRETION PERMITTED.
MARAD HAS STATED A SOUND BASIS FOR ACCELERATING THE RATE OF DISPOSAL,
AND WE WOULD NOT BE JUSTIFIED IN ASSUMING IN THE ABSENCE OF SUFFICIENT
PROOF THAT THIS IS A SUBTERFUGE TO PERMIT IT TO SELL TO FOREIGNERS. WE
BELIEVE MARAD'S POLICY OF FIRST OFFERING CITIZENS THE EXCLUSIVE
OPPORTUNITY TO BUY THE VESSELS AT A MINIMUM PRICE IS CONSISTENT WITH THE
DILIGENT EFFORT REQUIRED. OF COURSE, WE BELIEVE THE FLOOR PRICE FOR
SALES TO CITIZENS SHOULD BE DETERMINED ON A CURRENT BASIS AND INCLUDE
CONSIDERATION OF ALL RELEVANT FACTORS, INCLUDING THOSE SPECIFIED IN
SECTION 5. AS INDICATED PREVIOUSLY, MARAD IS REEXAMINING THE FLOOR
PRICE IN LIGHT OF CURRENT CONDITIONS.
ACCORDINGLY, YOUR PROTEST IS DENIED.
B-171341, AUG 13, 1971
SHORTAGES IN SHIPMENTS - DEDUCTIONS IN PAYMENT - LACK OF EVIDENCE TO
RESOLVE DISPUTED FACT
DENIAL OF CLAIM BY CHICAGO TRANSPARENT, INC. FOR DEDUCTIONS IN
PAYMENTS MADE BY GENERAL SERVICES ADMINISTRATION ON REPORTED SHORTAGES
OF SHIPMENTS OF PLASTIC BAGS TO VARIOUS GSA FACILITIES.
SINCE CLAIMANT HAS FAILED TO PRODUCE SATISFACTORY EVIDENCE WHICH
WOULD RESOLVE THE DISPUTED QUESTION OF FACT IN THEIR FAVOR, GAO HAS NO
AUTHORITY TO GRANT PAYMENT OF THE CLAIM.
TO CHICAGO TRANSPARENT, INC.:
PLEASE REFER TO YOUR LETTERS OF NOVEMBER 18 AND 19, 1970, CONCERNING
DEDUCTIONS TAKEN BY THE GENERAL SERVICES ADMINISTRATION (GSA) ON
REPORTED SHORTAGES OF SHIPMENTS OF PLASTIC BAGS TO VARIOUS GSA
FACILITIES.
THE SHIPMENTS IN QUESTION WERE COVERED BY GSA PURCHASE ORDERS
N-58976-1, N-655600-J AND F/TI07651-0. YOU INDICATED THAT DEDUCTIONS
FOR SHORTAGES ON THESE SHIPMENTS WERE MADE BY GSA BASED UPON REPORTS
RECEIVED FROM THE CONSIGNEES IN NEW JERSEY AND TEXAS.
TO MAKE A DETERMINATION AS TO THE VALIDITY OF THE CLAIMS PRESENTED BY
YOU, A RECORD OF THE SHORTAGES IN THE NAMED SHIPMENTS WAS DEVELOPED WITH
THE GENERAL SERVICES ADMINISTRATION (GSA). WE FIND THAT THE DEDUCTIONS
COVERING PURCHASE ORDER F/TI-07651-0 WERE IN ERROR AND THAT ON DECEMBER
4, 1970, THE FULL AMOUNT OF THE DEDUCTION WAS PAID WITH CHECK #112967,
REFERENCED INVOICE 28847A. GSA HAS FURTHER ADVISED THAT THE FACILITIES
AT THE RARITAN ARSENAL AND BELLE MEAD REVIEWED THEIR SHIPMENT RECORDS
AND REPORTED RECEIVING THE SHIPMENTS IN QUESTION WITH A SHORTAGE, WHICH
WAS SUPPORTED BY AN INVENTORY RECOUNT CONFIRMING THE ORIGINAL COUNT OF A
SHORTAGE IN BOTH SHIPMENTS. YOUR POSITION IS BEST EXPLAINED IN THE
FOURTH PARAGRAPH OF YOUR LETTERS TO THE EFFECT THAT AS A SHIPMENT IS
BEING LOADED INTO A BOX CAR IT IS COUNTED AND A FINAL CHECK OF THE COUNT
IS MADE BEFORE THE CAR IS SEALED. BEFORE THE CAR IS SEALED, IT IS
INDICATED THAT "ALL TALLYS MUST AGREE." IN OUR LETTER TO YOU DATED MARCH
2, 1971, WE ASKED YOU FOR EVIDENCE TO ESTABLISH THAT YOU ACTUALLY LOADED
THE NUMBER OF PACKAGES SHOWN ON THE BILLS OF LADING. YOU HAVE NOT
REPLIED TO OUR LETTER TO DATE.
THE STATEMENTS MADE BY YOU AND THE ADMINISTRATIVE OFFICE AS TO THE
NUMBER OF PACKAGES ACTUALLY CONTAINED IN BOTH SHIPMENTS CREATE A
DISPUTED QUESTION OF FACT. WHEN THERE IS A CONFLICT BETWEEN THE
STATEMENT OF THE CLAIMANT AND THE REPORT OF THE ADMINISTRATIVE OFFICE -
IN THIS INSTANCE THE SHORTAGE OF 40 CARTONS OF PLASTIC BAGS IN GSA PO.
N-58976-1 AND 2 CARTONS IN GSA PO. N-655600-J - THE ADMINISTRATIVE
OFFICE REPORT WILL BE ACCEPTED AS CORRECT IN THE ABSENCE OF SUBSTANTIAL
EVIDENCE TO THE CONTRARY. 41 COMP. GEN. 47, 54 (1961), 46 COMP. GEN.
740, 744 (1967). THE BURDEN IS UPON THE CLAIMANT TO PRESENT EVIDENCE
SATISFACTORILY PROVING ITS CLAIM AND ALL MATTERS INCIDENTAL THERETO
REQUISITE TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES
AND THE CLAIMANT'S RIGHT TO PAYMENT. UNITED STATES V NEW YORK, N.H. &
H.R. CO., 355 U.S. 253 (1957); BENJAMIN MOTOR EXPRESS, INC. V UNITED
STATES, 251 F. 2D 547 (1958). ABSENT SATISFACTORY EVIDENCE WE HAVE NO
AUTHORITY TO AUTHORIZE PAYMENT OF CLAIM.
ON THE BASIS OF THE RECORD BEFORE US, WE FIND THAT YOU HAVE NOT
FURNISHED SUFFICIENT EVIDENCE TO SUPPORT YOUR CLAIM FOR DEDUCTION MADE
BY GSA FOR SHORTAGES IN THE SHIPMENT OF PLASTIC BAGS NOTED UNDER
PURCHASE ORDERS N-58976-1 AND N-655600-J.
B-171460, AUG 13, 1971
MILITARY PERSONNEL - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN -
CHANGE IN OPTIONS
CONCERNING POSSIBLE CHANGES IN, AND REVOCATIONS OF, ANNUITY OPTIONS
THAT CAN BE MADE BY SERVICE MEMBERS UNDER RETIRED SERVICEMAN'S FAMILY
PROTECTION PLAN, 10 U.S.C. 1431(C), AS AMENDED AND AS INTERPRETED BY
DECISION OF THE COMP. GEN., B-169528, JUNE 1, 1970.
DECISION LISTS, WITH REFERENCE TO THE OPTION THAT SERVICEMAN
PREVIOUSLY ELECTED, POSSIBLE CHANGES IN HIS ANNUITY UNDER 10 U.S.C.
1431(C) IN TEN GIVEN EXAMPLES WHICH SHOW SPECIFIC ACQUISITION OF LOSS OF
A WIFE OR CHILD AND THE COMPOSITION OF THE FAMILY GROUP AFTER SUCH
ACQUISITION OR LOSS.
ANYTHING IN B-169528, JUNE 1, 1970, 49 COMP. GEN. 824 INCONSISTENT
WITH THE PRESENT DECISION IS TO BE DISREGARDED.
TO MR. SECRETARY:
FURTHER REFERENCE IS MADE TO LETTER FROM THE ASSISTANT SECRETARY OF
DEFENSE (COMPTROLLER) DATED DECEMBER 2, 1970, REQUESTING A DECISION AS
TO WHICH CHANGES IN, AND REVOCATIONS OF, RETIRED SERVICEMAN'S FAMILY
PROTECTION PLAN ELECTIONS ARE PERMISSIBLE UNDER THE LAST SENTENCE OF 10
U.S.C. 1431(C) BASED UPON SIX ENUMERATED CHANGES IN THE SERVICEMAN'S
MARITAL OR FAMILY DEPENDENCY STATUS. THE QUESTIONS AND A DISCUSSION
THEREOF ARE CONTAINED IN DEPARTMENT OF DEFENSE MILITARY PAY AND
ALLOWANCE COMMITTEE ACTION NO. 445.
THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN IS AN ANNUITY PROGRAM
UNDER WHICH RETIRED SERVICEMEN MAY PROVIDE AN ANNUITY FOR THEIR
SURVIVING SPOUSES AND DEPENDENT CHILDREN. THE LAW CONTEMPLATES THAT
UNDER THAT PROGRAM THE ANNUITIES PAYABLE TO THE RETIRED SERVICEMEN'S
SURVIVORS ARE FINANCED WHOLLY FROM DEDUCTIONS MADE FROM THE RETIRED PAY
OF PARTICIPATING RETIRED MEMBERS OF THE UNIFORMED SERVICES.
THE LAW PRESCRIBES THE ANNUITIES WHICH MAY BE ELECTED AND THE TIME
WHEN SUCH ELECTIONS MAY BE MADE, CHANGED, OR REVOKED. PRIOR TO THE
ENACTMENT OF PUBLIC LAW 90-485, APPROVED AUGUST 13, 1968, 82 STAT. 751
(AMENDING, GENERALLY, 10 U.S.C., CHAPTER 73), THE INITIAL ELECTION OF AN
ANNUITY HAD TO BE MADE PRIOR TO THE TIME THE MEMBER COMPLETED 18 YEARS
OF SERVICE AND ANY CHANGE OR MODIFICATION OF ANY ELECTION HAD TO BE MADE
AT LEAST 3 YEARS PRIOR TO THE MEMBER'S RETIREMENT.
PUBLIC LAW 90-485 AMENDED THE LAW (10 U.S.C. 1434) TO PROVIDE THAT
THE MONTHLY ANNUITY WHICH MAY BE ELECTED SHALL BE THE AMOUNT PRESCRIBED
BY THE ELECTOR AT THE TIME OF THE ELECTION, BUT NOT LESS THAN 12-1/2
PERCENT OR MORE THAN 50 PERCENT OF HIS RETIRED OR RETAINER PAY (AND IN
NO CASE LESS THAN $25), AND THAT HE MAY MAKE THE ANNUITY PAYABLE -
"(1) TO, OR ON BEHALF OF, THE SURVIVING SPOUSE, ENDING WHEN THE
SPOUSE DIES OR REMARRIES;
"(2) IN EQUAL SHARES TO, OR ON BEHALF OF, THE SURVIVING CHILDREN
ELIGIBLE FOR THE ANNUITY AT THE TIME EACH PAYMENT IS DUE, ENDING WHEN
THERE IS NO SURVIVING ELIGIBLE CHILD; OR
"(3) TO, OR ON BEHALF OF, THE SURVIVING SPOUSE, AND AFTER THE DEATH
OR REMARRIAGE OF THAT SPOUSE, IN EQUAL SHARES TO, OR ON BEHALF OF, THE
SURVIVING ELIGIBLE CHILDREN, ENDING WHEN THERE IS NO SURVIVING ELIGIBLE
CHILD."
THE PURPOSE OF PUBLIC LAW 90-485 WAS TO INCREASE THE FLEXIBILITY OF
THE PLAN BY (1) MOVING THE PREELECTION PERIOD UP TO THE 19TH YEAR OF
SERVICE AND ALLOWING AN IMMEDIATELY EFFECTIVE CHANGE OR REVOCATION OF
THE ORIGINAL ELECTION IF MADE PRIOR TO COMPLETION OF THE 19TH YEAR OF
SERVICE, (2) REDUCING FROM 3 TO 2 YEARS THE DELAY IN THE EFFECTIVE DATE
OF A SUBSEQUENT ELECTION, MODIFICATION, OR REVOCATION OF AN ELECTION,
AND (3) ALLOWING A TIMELY CHANGE OR REVOCATION OF ELECTION PRIOR TO THE
FIRST DAY FOR WHICH RETIRED OR RETAINER PAY IS GRANTED, PROVIDED THE
CHANGE DOES NOT INCREASE THE AMOUNT OF THE ANNUITY ELECTED, "TO REFLECT
A CHANGE IN THE MARITAL OR DEPENDENCY STATUS OF THE MEMBER OR HIS FAMILY
THAT IS CAUSED BY DEATH, DIVORCE, ANNULMENT, REMARRIAGE, OR ACQUISITION
OF A CHILD, IF SUCH CHANGE OR REVOCATION OF ELECTION IS MADE WITHIN TWO
YEARS OF SUCH CHANGE IN MARITAL OR DEPENDENCY STATUS." (WORDS IN
QUOTATION MARKS ARE FROM LAST SENTENCE IN U.S.C. 1431(C).)
IN ITS REPORT ON THE BILL WHICH BECAME PUBLIC LAW 90-485 (H. REPT.
NO. 951, 90TH CONG., 1ST SESS., PAGE 7), THE HOUSE COMMITTEE ON ARMED
SERVICES STATED:
"4. THE BILL AS REPORTED WILL ALSO PERMIT REVOCATIONS OR
MODIFICATION OF AN ELECTION WITHIN THE PREELECTION PERIOD (2 YEARS
PRECEDING RETIREMENT UNDER THIS BILL). THUS, SUBSEQUENT TO THE TIME A
SERVICE MEMBER MAKES AN ELECTION AND PRIOR TO HIS ACTUAL RETIREMENT, HE
MAY REVOKE OR MODIFY HIS ELECTION TO ADJUST TO A CHANGE IN HIS FAMILY OR
BENEFICIARY SITUATION. FOR EXAMPLE, AS PRESENTLY CONSTITUTED, WITHIN
THE PREELECTION PERIOD, WITH OPTION 1 (WIFE ONLY) SHOULD THE WIFE DIE OR
BE DIVORCED, THE CHILDREN OF THE MARRIAGE MAY NOT RECEIVE AN ANNUITY
UNLESS THE ELECTION OPTION 2 WAS ALSO IN EFFECT. SHOULD THE MEMBER WITH
OPTION 2 (CHILDREN ONLY) REMARRY, HE CAN NOT NOW MODIFY HIS SURVIVOR
PROTECTION PLAN TO PROVIDE FOR HIS NEW SPOUSE, DESPITE THE FACT THAT HE
HAD NOT AT THIS POINT IN TIME ACTUALLY RETIRED. THE NEED TO LIBERALIZE
THIS ASPECT OF THE PREELECTION RULE HAS LONG BEEN RECOMMENDED BY
PARTICIPANTS AND IS ONE OF THE CHIEF REASONS WHY MANY SERVICE MEMBERS
HAVE HERETOFORE DECLINED PARTICIPATION IN THE PROGRAM. THE CHANGE IS
CONCURRED IN BY THE BOARD OF ACTUARIES."
THE COMMITTEE ACTION IN EFFECT ASKS, WITH RESPECT TO EACH OF THE
THREE ANNUITY ELECTION OPTIONS SET FORTH IN THE STATUTE, WHETHER
ELECTIONS, CHANGES IN ELECTIONS, OR REVOCATIONS OF ELECTIONS ARE
AUTHORIZED UNDER THE LAST SENTENCE OF 10 U.S.C. 1431(C), INCIDENT TO (1)
LOSS OF A WIFE, (2) ACQUISITION OF A WIFE, (3) ACQUISITION OF FIRST
CHILD, (4) ACQUISITION OF AN ADDITIONAL CHILD, (5) LOSS OF ONLY CHILD
AND (6) LOSS OF CHILD (OTHER CHILD BENEFICIARY) AND, IF SO, WHAT
ELECTIONS, CHANGES IN ELECTIONS OR REVOCATIONS OF ELECTIONS ARE
AUTHORIZED. THE COMMITTEE ACTION STATES THAT THE QUESTIONS ARE PROMPTED
BY OUR DECISION OF JUNE 1, 1970, B-169528, WHICH INCLUDED THE FOLLOWING
DISCUSSION:
"IT APPEARS THAT THE CONGRESS DID NOT INTEND THAT SECTION 1431(C)
SHOULD PROVIDE A MEANS OF RELEASING A MEMBER FROM THE COMMITMENT OF A
PRIOR ELECTION SIMPLY ON THE OCCURRENCE OF A CHANGE IN THE MARITAL OR
DEPENDENCY STATUS OF THE ELECTOR OR HIS FAMILY CAUSED BY ONE OR MORE OF
THE LISTED FACTORS, BUT RATHER, THAT SUCH SECTION WAS DESIGNED TO ALLOW
HIM TO MAKE A CHANGE OR REVOCATION WHEN THE CHANGE IN HIS FAMILY'S
STATUS RENDERS HIS PRIOR ELECTION INAPPROPRIATE.
"CERTAIN CHANGES IN MARITAL OR DEPENDENCY STATUS DO NOT WARRANT A
CHANGE IN ELECTION. FOR EXAMPLE, A MEMBER WITH OPTION 3 (FAMILY OPTION)
HAS A WIFE AND THREE CHILDREN AND ONE OF THE CHILDREN DIES. IF THE
SECTION WERE INTERPRETED IN SUCH A MANNER AS TO PERMIT A CHANGE OR
REVOCATION BECAUSE OF THE DEATH OF HIS CHILD, WE THINK THIS WOULD BE
CONTRARY TO THE INTENT OF THE CONGRESS. THAT INTENT IS EXPRESSED BY THE
USE OF THE WORDS 'TO REFLECT.' IN OUR VIEW THOSE WORDS REQUIRE A READING
OF SECTION 1431(C) SO AS TO PERMIT A CHANGE OR REVOCATION INDICATIVE OF
OR BEARING A CLOSE RELATIONSHIP TO THE ACTUAL CHANGE IN THE MARITAL OR
DEPENDENCY STATUS OF THE ELECTOR OR HIS FAMILY."
THE PRINCIPAL QUESTIONS WHICH WE BELIEVE TO BE INVOLVED ARE INDICATED
AND ANSWERED BELOW UNDER HEADINGS NUMBERED 1 TO 10, INCLUSIVE. EACH OF
THESE HEADINGS SHOWS ACQUISITION OR LOSS OF A WIFE OR CHILD AND THE
COMPOSITION OF THE FAMILY GROUP AFTER SUCH LOSS OR ACQUISITION. WE
REALIZE THAT THESE ANSWERS MAY NOT COVER ALL CASES THAT COULD ARISE BUT
WE THINK THAT THEY WILL COVER MOST CASES THAT ARE LIKELY TO ARISE. THE
SOLUTIONS INDICATED ARE BASED UPON OUR UNDERSTANDING THAT THE ONLY
OPTION CHANGES OR REVOCATIONS AUTHORIZED BY THE ABOVE-QUOTED PROVISIONS
OF SECTION 1431(C), INCIDENT TO A CHANGE IN MARITAL OR FAMILY DEPENDENCY
STATUS, ARE THOSE WHICH REALISTICALLY REFLECT THE CHANGE IN SUCH STATUS.
IN OTHER WORDS, IT IS OUR VIEW THAT AN APPROPRIATE ELECTION OR
REVOCATION UNDER THE LAST SENTENCE OF 10 U.S.C. 1431(C) WOULD BE ONE
WHICH MAY BE CONSIDERED A LOGICAL AND REASONABLE ACTION FOLLOWING AND
BASED UPON THE PARTICULAR OCCURRENCE WHICH CHANGES THE MARITAL OR
DEPENDENCY STATUS OF THE MEMBER OR HIS FAMILY. OUR REASONS FOR THE
DETERMINATIONS UNDER EACH HEADING APPEAR IMMEDIATELY AFTER THE ANSWERS
TO WHICH THEY RELATE. SINCE ALL ANSWERS INVOLVE THE INTERPRETATION AND
APPLICATION OF THE LAST SENTENCE OF 10 U.S.C. 1431(C), THEY ARE, OF
COURSE, SUBJECT TO THE PROVISION IN THAT SENTENCE THAT A CHANGE OF
ELECTION MAY NOT INCREASE THE AMOUNT OF THE ANNUITY ELECTED.
1. LOSS OF WIFE WHERE MEMBER HAS A CHILD OR CHILDREN
IN A CASE WHERE THE MEMBER LOSES HIS WIFE BY DEATH, DIVORCE OR
ANNULMENT AND, AT THAT TIME HE HAS A CHILD OR CHILDREN IN EXISTENCE AND
HE -
PREVIOUSLY HAD ELECTED OPTION 1 -
HE MAY REVOKE OPTION 1 OR HE MAY ELECT OPTION 2 OR OPTION 3
PREVIOUSLY HAD ELECTED OPTION 2 -
HE MAY NOT REVOKE OPTION 2, ELECT OPTION 1 OR ELECT OPTION 3
PREVIOUSLY HAD ELECTED OPTION 3 -
HE MAY REVOKE OPTION 3 PROVIDED HE ELECTS OPTION 2
HE MAY NOT ELECT OPTION 1
WHERE THE MEMBER HAD ELECTED OPTION 1 ONLY AND HE SUFFERS THE LOSS OF
HIS WIFE HE MAY REVOKE HIS OPTION 1 ELECTION, ALTHOUGH SUCH ACTION WOULD
BE IMMATERIAL UNLESS HE SHOULD REMARRY BEFORE RETIREMENT, SINCE NO
REDUCTION WOULD BE MADE IN HIS RETIRED PAY FOR A WIDOW'S ANNUITY IF HE
HAS NO WIFE AT THE TIME OF HIS RETIREMENT. SEE SUBSECTION 301A OF THE
REGULATIONS FOR THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
(HEREINAFTER REFERRED TO AS REGULATIONS).
THE ABOVE-QUOTED STATEMENT IN HOUSE REPORT NO. 951 CLEARLY
ESTABLISHES THAT IT WAS THE INTENTION OF CONGRESS THAT A MEMBER SHOULD
BE ELIGIBLE TO ELECT AN ANNUITY FOR HIS CHILDREN UPON THE LOSS OF HIS
WIFE AND THEREFORE A MEMBER WHO HAD ONLY AN OPTION 1 ELECTION IN EFFECT
MAY ELECT OPTION 2 IF HE HAS ELIGIBLE CHILDREN UPON THE LOSS OF HIS
WIFE.
WHILE IT MAY SEEM INAPPROPRIATE FOR A MEMBER, WHO HAD ELECTED OPTION
1 ONLY, TO ELECT OPTION 3 UPON THE LOSS OF HIS WIFE, A MEMBER MAY ELECT
AN ANNUITY FOR A FUTURE WIFE (SEE SECTION 301A OF THE REGULATIONS),
PAYMENT OF WHICH WOULD BE CONTINGENT UPON A SUBSEQUENT MARRIAGE. IF IN
SUCH CIRCUMSTANCES THE MEMBER DOES IN FACT ELECT OPTION 3 BUT DOES NOT
REMARRY, SUCH ELECTION IS IN EFFECT CONVERTED TO AN OPTION 2 ELECTION,
SINCE SUBSECTION 401C OF THE REGULATIONS PROVIDES THAT, IF A MEMBER
ELECTS OPTION 3 AND HAS NO WIFE ELIGIBLE FOR AN ANNUITY AT THE TIME OF
HIS RETIREMENT, HE SHALL HAVE HIS COSTS COMPUTED AS THOUGH HE HAD
ELECTED OPTION 2. ACCORDINGLY, AN OPTION 3 ELECTION IS PERMISSIBLE WHEN
A MEMBER WHO HAS ELECTED AN OPTION 1 ANNUITY SUFFERS THE LOSS OF HIS
WIFE.
THE MEMBER IS NOT REQUIRED TO REVOKE OPTION 1 UPON THE LOSS OF HIS
WIFE AND, IF HE REMARRIES WITHOUT REVOKING IT, HIS WIDOW WOULD BE
ENTITLED TO AN OPTION 1 ANNUITY. THERE IS NO BASIC DIFFERENCE BETWEEN
AN OPTION 1 AND AN OPTION 3 ELECTION INSOFAR AS PAYMENT OF THE ANNUITY
TO THE WIDOW IS CONCERNED (EXCEPT WHERE THE MEMBER ALLOCATES PART OF THE
ANNUITY TO HIS CHILDREN BY A WIFE OTHER THAN HIS WIDOW PURSUANT TO
SUBSECTION 201C OF THE REGULATIONS). THE ONLY DIFFERENCE BETWEEN AN
OPTION 1 AND AN OPTION 3 ELECTION IS THAT UNDER AN OPTION 3 ELECTION THE
CHILDREN ORDINARILY RECEIVE THE ANNUITY UPON THE TERMINATION OF THE
WIDOW'S ANNUITY. ACCORDINGLY, AN OPTION 3 ELECTION IS PERMISSIBLE WHEN
A MEMBER WITH CHILDREN WHO HAS ELECTED OPTION 1 SUFFERS THE LOSS OF HIS
WIFE.
WHERE THE MEMBER PREVIOUSLY ELECTED OPTION 2, THE LOSS OF A WIFE
PROVIDES NO BASIS FOR REVOKING AN OPTION 2 ELECTION OR FOR ELECTING
OPTION 1 OR OPTION 3, SINCE NO RIGHT TO AN ANNUITY COULD HAVE ACCRUED TO
THE WIFE UNDER OPTION 2 AND HER DEATH COULD THUS FURNISH NO BASIS FOR A
CHANGE IN THAT OPTION.
WHERE THE MEMBER PREVIOUSLY HAD ELECTED OPTION 3, HE MAY REVOKE THAT
OPTION UPON LOSS OF HIS WIFE PROVIDED HE ELECTS OPTION 2. WHERE THE
MEMBER HAS ELECTED OPTION 3 AND HE HAS NO WIFE ELIGIBLE FOR AN ANNUITY
WHEN HE RETIRES, THE REGULATIONS PROVIDE THAT THE REDUCTION FACTOR WITH
RESPECT TO THE MEMBER'S COST CONTRIBUTION WILL BE COMPUTED AS THOUGH HE
HAD ELECTED OPTION 2 AND NO REDUCTION IS MADE IN HIS RETIRED PAY ON
ACCOUNT OF A WIFE. IN SUCH A CASE, REVOCATION OF OPTION 3 AND ELECTION
OF OPTION 2 IS UNNECESSARY FOR THE REDUCTION FACTOR TO BE COMPUTED AND
ANNUITY PAYMENTS TO BE MADE AS IF THE MEMBER HAD ORIGINALLY ELECTED
OPTION 2 ONLY. HOWEVER, AN AFFIRMATIVE REVOCATION OF OPTION 3 AND AN
AFFIRMATIVE ELECTION OF OPTION 2 WOULD EFFECT THE SAME RESULT AND WOULD
BE SUPPORTED BY THE CHANGE IN MARITAL STATUS RESULTING FROM THE MEMBER'S
LOSS OF HIS WIFE. SUCH CHANGE OF ELECTIONS IS THEREFORE AUTHORIZED. IT
IS OUR OPINION THAT REVOCATION OF OPTION 3 IS AUTHORIZED ONLY IF OPTION
2 IS ELECTED. ELECTION OF OPTION 1 UPON THE LOSS OF A WIFE WOULD BE
INAPPROPRIATE.
2. LOSS OF WIFE WHEN MEMBER HAS NO CHILD
IN A CASE WHERE THE MEMBER LOSES HIS WIFE BY DEATH, DIVORCE, OR
ANNULMENT AND, AT THAT TIME, HE HAD NO CHILD IN EXISTENCE, AND HE -
PREVIOUSLY HAD ELECTED OPTION 1 -
HE MAY REVOKE OPTION 1
HE MAY NOT ELECT OPTION 2 OR ELECT OPTION 3
PREVIOUSLY HAD ELECTED OPTION 2 -
HE MAY NOT REVOKE OPTION 2, ELECT OPTION 1, OR ELECT OPTION 3
PREVIOUSLY HAD ELECTED OPTION 3 -
HE MAY REVOKE OPTION 3
HE MAY NOT ELECT OPTION 1 OR OPTION 2
WHERE THE MEMBER HAS NO CHILD, THE LOSS OF HIS WIFE WOULD NOT PROVIDE
A BASIS FOR ELECTION OF OPTION 1, 2 OR 3, SINCE SUCH AN ELECTION WOULD
NOT REFLECT THE CHANGE IN HIS MARITAL OR DEPENDENCY STATUS MADE BY THE
LOSS OF HIS WIFE. SIMILARLY, REVOCATION OF OPTION 2 WOULD NOT REFLECT
ANY RELEVANT CHANGE IN HIS MARITAL OR DEPENDENCY STATUS.
3. ACQUISITION OF WIFE BY REMARRIAGE WHEN MEMBER HAS CHILD OR
CHILDREN
IN A CASE WHERE THE MEMBER ACQUIRES A WIFE BY REMARRIAGE AND, AT THAT
TIME, HE HAS A CHILD OR CHILDREN IN EXISTENCE, AND HE -
PREVIOUSLY HAD ELECTED OPTION 1 -
HE MAY ELECT OPTION 2 IN CONJUNCTION WITH OPTION 1 OR HE MAY ELECT
OPTION 3
HE MAY NOT REVOKE OPTION 1 (EXCEPT WHEN HE ELECTS OPTION 3)
PREVIOUSLY HAD ELECTED OPTION 2 -
HE MAY ELECT A COMBINATION OF OPTION 1 AND OPTION 2 OR HE MAY ELECT
OPTION 3 IN PLACE OF OPTION 2
HE MAY NOT REVOKE OPTION 2 EXCEPT WHEN HE ELECTS OPTION 3
PREVIOUSLY HAD ELECTED OPTION 3 -
HE MAY ELECT A COMBINATION OF OPTION 1 AND OPTION 2
HE MAY NOT REVOKE OPTION 3 (EXCEPT WHEN HE ELECTS SUCH COMBINATION OF
OPTION 1 AND OPTION 2)
WHEN A MEMBER WITH CHILDREN REMARRIES, HIS FAMILY SITUATION IS
MATERIALLY CHANGED AND FOR MANY REASONS HE MAY WANT TO PROVIDE AN
ANNUITY FOR BOTH HIS WIFE AND HIS CHILDREN, PARTICULARLY SINCE THE
RELATIONSHIP OF HIS NEW WIFE TO HIS EXISTING CHILDREN IS A RELATIONSHIP
BY AFFINITY ONLY SO THAT UPON THE DEATH OF THE MEMBER THE WIFE MIGHT
HAVE NO LEGAL LIABILITY FOR THE SUPPORT OF SUCH CHILDREN. SEE ERIE
COUNTY BOARD OF SOCIAL WELFARE V SCHNEIDER, 163 NYS 2D 184 (1957).
WHILE, UNDER THE REGULATIONS, THE MEMBER MAY ALLOCATE PART OF AN OPTION
3 ANNUITY TO HIS CHILDREN, HE CAN INSURE SUPPORT OF HIS CHILDREN BY
MEANS OF AN OPTION 2 ANNUITY ALSO. THEREFORE HE MAY ELECT OPTION 2 IN
CONJUNCTION WITH OPTION 1.
WHERE THE MEMBER WITH CHILDREN ACQUIRES A WIFE BY REMARRIAGE HE MAY
NOT REVOKE HIS ELECTION OF OPTION 1 (UNLESS HE ELECTS OPTION 3 IN PLACE
OF IT), SINCE SUCH ACTION WOULD NOT "REFLECT" THE CHANGED MARITAL OR
DEPENDENCY STATUS RESULTING FROM HIS ACQUISITION OF A WIFE.
WHERE THE MEMBER WHO HAD ELECTED OPTION 2 FOR HIS CHILDREN REMARRIES,
IT WOULD SEEM APPROPRIATE THAT HE PROVIDE FOR HIS WIFE AS WELL AS HIS
CHILDREN BY ELECTING A COMBINATION OF OPTION 1 AND OPTION 2 OR BY
ELECTING A COMBINATION OF OPTION 1 AND OPTION 2 OR BY ELECTING OPTION 3
IN PLACE OF OPTION 2. A MERE REVOCATION OF OPTION 2, WHICH WOULD
TOTALLY DEPRIVE THE CHILDREN OF THEIR PREVIOUS DESIGNATION AND MAKE NO
PROVISION FOR THE NEW WIFE, WOULD NOT SEEM TO BE A REASONABLE OR LOGICAL
ACTION FOLLOWING AND BASED UPON THE REMARRIAGE. HOWEVER, SINCE AN
ELECTION OF OPTION 3 AND SIMULTANEOUS REVOCATION OF OPTION 2 WOULD
REFLECT THE REMARRIAGE AND WOULD PROVIDE, CONTINGENTLY, FOR THE
CHILDREN, IT WOULD APPEAR THAT THE OPTION 3 ELECTION SHOULD BE OPEN TO
THE MEMBER.
WHERE A MEMBER WITH CHILDREN AND WITH AN OPTION 3 ELECTION REMARRIES,
HIS MERE ELECTION OF OPTION 1 IN PLACE OF OPTION 3 WOULD TERMINATE THE
CONTINGENT PROSPECT OF THE CHILDREN TO RECEIVE AN ANNUITY WITHOUT GIVING
THE NEW WIFE ANY GREATER PROSPECT OF AN ANNUITY THAN SHE WOULD HAVE HAD
UNDER THE OPTION 3 ELECTION. THIS WOULD BE INAPPROPRIATE. HOWEVER, AN
ELECTION OF A COMBINATION OF OPTIONS 1 AND 2 IN PLACE OF OPTION 3 WOULD
GIVE BOTH THE NEW WIFE AND THE CHILDREN THE PROSPECT OF RECEIVING
ANNUITIES AND WOULD BE APPROPRIATE. AS INDICATED, UNDER THE REGULATIONS
THE MEMBER WITH AN OPTION 3 ELECTION COULD ACCOMPLISH A SIMILAR RESULT
BY ALLOCATING A PORTION OF THE ANNUITY FOR HIS CHILDREN BY A SPOUSE
OTHER THAN HIS WIDOW, TO BE PAID TO THEM CONCURRENTLY WITH THE WIDOW'S
ANNUITY.
4. ACQUISITION OF WIFE BY REMARRIAGE WHEN MEMBER HAS NO CHILD
IN A CASE WHERE A MEMBER ACQUIRES A WIFE BY REMARRIAGE AND AT THAT
TIME HE HAS NO CHILD IN EXISTENCE AND HE -
PREVIOUSLY HAD ELECTED OPTION 1 -
HE MAY NOT REVOKE OPTION 1, ELECT OPTION 2 OR ELECT OPTION 3
PREVIOUSLY HAD ELECTED OPTION 2 -
HE MAY REVOKE OPTION 2, ELECT OPTION 1 OR ELECT OPTION 3
PREVIOUSLY HAD ELECTED OPTION 3 -
HE MAY NOT REVOKE OPTION 3, ELECT OPTION 1 OR ELECT OPTION 2
WHERE A MEMBER WITHOUT A CHILD HAD ELECTED OPTION 1, NEITHER THE
REVOCATION OF OPTION 1 NOR THE ELECTION OF OPTION 2 WOULD BE RELATED TO
THE ACQUISITION OF A WIFE. WHILE AN ELECTION OF OPTION 3 WOULD HAVE THE
SAME SIGNIFICANCE FOR THE WIFE, SHE IS ALREADY COVERED BY THE PREVIOUSLY
ELECTED OPTION 1 AND THERE WOULD BE NO PURPOSE TO BE SERVED BY
PERMITTING THE MEMBER INCIDENT TO THE REMARRIAGE TO PROVIDE A CONTINGENT
RIGHT FOR CHILDREN NOT IN EXISTENCE.
IF THE MEMBER HAD ELECTED OPTION 2, REVOCATION OF THAT OPTION AND
ELECTION OF OPTION 1 OR 3 IS AUTHORIZED. WHERE THE MEMBER HAD ELECTED
OPTION 3, ELECTION OF OPTION 2 WOULD BE UNRELATED TO HIS REMARRIAGE AND
A CHANGE TO OPTION 1 WOULD BE UNNECESSARY SINCE OPTION 3 WOULD ENTITLE
HIS WIFE TO THE SAME ANNUITY AS SHE WOULD RECEIVE UNDER OPTION 1.
5. ACQUISITION OF FIRST CHILD
IN A CASE WHERE THE MEMBER HAS A WIFE AND ACQUIRES AN ONLY LEGITIMATE
OR ADOPTED CHILD AND HE -
PREVIOUSLY HAD ELECTED OPTION 1 -
HE MAY ELECT OPTION 2 IN CONJUNCTION WITH OPTION 1, OR REVOKE OPTION
1 IF HE ELECTS OPTION 3
HE MAY NOT REVOKE OPTION 1 UNLESS HE ELECTS OPTION 3
PREVIOUSLY HAD ELECTED OPTION 2 -
HE MAY NOT ELECT OPTION 1, REVOKE OPTION 2, OR ELECT OPTION 3
PREVIOUSLY HAD ELECTED OPTION 3 -
HE MAY ELECT A COMBINATION OF OPTION 1 AND OPTION 2
HE MAY NOT REVOKE OPTION 3 (EXCEPT WHEN HE ELECTS SUCH COMBINATION)
REVOCATION OF OPTION 1 IS NOT APPROPRIATE WHERE THE MEMBER HAS A WIFE
AND ACQUIRES AN ONLY CHILD, BUT HE MAY ELECT OPTION 2 AND ADJUST OPTION
1 ACCORDINGLY. REVOCATION OF OPTION 1 WITH ACCOMPANYING ELECTION OF
OPTION 3 WOULD BE PROPER SINCE BOTH THE WIFE AND CHILD WOULD BE COVERED
BY THE NEW ELECTION. IF OPTION 2 HAD BEEN PREVIOUSLY ELECTED,
REVOCATION OF OPTION 2 OR ELECTION OF OPTION 1 OR OPTION 3 WOULD NOT
REFLECT THE ACQUISITION OF THE CHILD AND, HENCE, WOULD NOT BE
APPROPRIATE. THE ELECTION OF OPTION 2 TO ENABLE HIS NEWLY ACQUIRED
CHILD TO RECEIVE AN ANNUITY CONCURRENTLY WITH HIS WIFE (OPTION 1),
RATHER THAN ONLY UPON HER DEATH OR REMARRIAGE CONTEMPLATED BY A PREVIOUS
OPTION 3 ELECTION, WOULD REFLECT A CHANGE IN DEPENDENCY STATUS SO AS TO
AUTHORIZE REVOCATION OF OPTION 3.
6. ACQUISITION OF ADDITIONAL CHILD
IN A CASE WHERE A MEMBER HAS A WIFE AND ONE OR MORE CHILDREN AND
ACQUIRES AN ADDITIONAL LEGITIMATE OR ADOPTED CHILD AND HE -
PREVIOUSLY HAD ELECTED OPTION 1 -
HE MAY ELECT OPTION 2 IN CONJUNCTION WITH OPTION 1 OR ELECT OPTION 3
HE MAY NOT REVOKE OPTION 1 EXCEPT WHEN HE ELECTS OPTION 3
PREVIOUSLY HAD ELECTED OPTION 2 -
HE MAY NOT ELECT OPTION 1 OR 3 OR REVOKE OPTION 2
PREVIOUSLY HAD ELECTED OPTION 3 -
HE MAY ELECT A COMBINATION OF OPTION 1 AND OPTION 2
HE MAY NOT REVOKE OPTION 3 EXCEPT WHEN HE ELECTS SUCH COMBINATION
WHERE A MEMBER HAD PREVIOUSLY ELECTED OPTION 1, THE ACQUISITION OF AN
ADDITIONAL CHILD PROVIDES NO BASIS FOR REVOCATION OF OPTION 1, BUT DOES
EFFECT SUCH A CHANGE IN DEPENDENCY STATUS AS TO AUTHORIZE ELECTION OF
OPTION 2 WITH AN APPROPRIATE ADJUSTMENT OF OPTION 1, OR AN OPTION 3
ELECTION IN PLACE OF OPTION 1. THE ACQUISITION OF AN ADDITIONAL CHILD
EFFECTS NO CHANGE IN THE MEMBER'S MARITAL STATUS, AND HENCE HE CAN NOT
ELIMINATE AN ANNUITY ELECTION FOR HIS WIFE ON THAT ACCOUNT, OR INITIATE
ONE FOR HER UPON THE ACQUISITION OF AN ADDITIONAL CHILD.
7. LOSS OF ONLY CHILD BY MEMBER WITH WIFE
IN A CASE WHERE THE MEMBER HAS A WIFE AND ONE CHILD AND THE CHILD
DIES AND HE -
PREVIOUSLY HAD ELECTED OPTION 1 -
HE MAY NOT REVOKE OPTION 1, OR ELECT OPTION 2 OR OPTION 3
PREVIOUSLY HAD ELECTED OPTION 2 -
HE MAY ELECT OPTION 1 OR OPTION 3 OR REVOKE OPTION 2
PREVIOUSLY HAD ELECTED OPTION 3 -
HE MAY ELECT OPTION 1
HE MAY NOT REVOKE OPTION 3 UNLESS HE ELECTS OPTION 1, AND HE MAY NOT
ELECT OPTION 2
IN VIEW OF DISCUSSIONS ABOVE NO EXPLANATIONS OF THE ABOVE CONCLUSIONS
ARE DEEMED TO BE NECESSARY.
8. LOSS OF ONLY CHILD BY MEMBER WITHOUT WIFE
IN A CASE WHERE THE MEMBER HAS ONE CHILD BUT NO WIFE AND THE CHILD
DIES AND HE -
PREVIOUSLY HAD ELECTED OPTION 1 -
HE MAY NOT REVOKE OPTION 1, OR ELECT OPTION 2 OR OPTION 3
PREVIOUSLY HAD ELECTED OPTION 2 -
HE MAY REVOKE OPTION 2
HE MAY NOT ELECT OPTION 1 OR OPTION 3
PREVIOUSLY HAD ELECTED OPTION 3 -
HE MAY NOT REVOKE OPTION 3 OR ELECT OPTION 1 OR OPTION 2
IN VIEW OF THE PREVIOUS DISCUSSION NO EXPLANATION OF THESE
CONCLUSIONS IS DEEMED TO BE NECESSARY.
9. LOSS OF CHILD BY MEMBER WHO HAS WIFE AND OTHER CHILD OR CHILDREN
IN A CASE WHERE THE MEMBER HAS A WIFE AND OTHER CHILDREN AND LOSES
ONE CHILD BY DEATH AND HE -
PREVIOUSLY HAD ELECTED OPTION 1 -
HE MAY NOT REVOKE OPTION 1 OR ELECT OPTION 2 OR 3
PREVIOUSLY HAD ELECTED OPTION 2 -
HE MAY NOT REVOKE OPTION 2 OR ELECT OPTION 1 OR OPTION 3
PREVIOUSLY HAD ELECTED OPTION 3 -
HE MAY NOT REVOKE OPTION 3 OR ELECT OPTION 1 OR OPTION 2
IN VIEW OF THE ABOVE DISCUSSION NO EXPLANATION OF THE ABOVE
CONCLUSIONS IS DEEMED NECESSARY.
10. LOSS OF CHILD BY MEMBER WHO HAS NO WIFE BUT HAS OTHER CHILDREN
IN A CASE WHERE A MEMBER HAS NO WIFE BUT HAS OTHER CHILDREN AND LOSES
A CHILD BY DEATH AND HE -
PREVIOUSLY HAD ELECTED OPTION 1 -
HE MAY NOT REVOKE OPTION 1 OR ELECT OPTION 2 OR OPTION 3
PREVIOUSLY HAD ELECTED OPTION 2 -
HE MAY NOT ELECT OPTION 1 OR OPTION 3 OR REVOKE OPTION 2
PREVIOUSLY HAD ELECTED OPTION 3 -
HE MAY NOT ELECT OPTION 1 OR OPTION 2 OR REVOKE OPTION 3
IN VIEW OF THE FOREGOING DISCUSSION NO EXPLANATION OF THE ABOVE
CONCLUSIONS IS DEEMED NECESSARY.
ANYTHING WHICH WAS SAID IN B-169528, JUNE 1, 1970, 49 COMP. GEN.
824, THAT IS INCONSISTENT WITH THE CONCLUSIONS REACHED HEREIN MAY BE
DISREGARDED.
B-171855, AUG 13, 1971
BID PROTEST - BID RESPONSIVENESS - INCLUSION OF DRAWINGS INCONSISTENT
WITH SPECIFICATIONS
DECISION DENYING PROTEST OF GREGORY ENGINEERING CORPORATION AGAINST
THE AWARD OF A CONTRACT UNDER IFB ISSUED BY U.S. ARMY MOBILITY EQUIPMENT
COMMAND (USAMEC), ST. LOUIS, MO., FOR A NUMBER OF STEEL TREADWAYS AND
RAMPS FOR TREADWAY BRIDGES TO SCOTT & HILL STEEL CORPORATION.
INCLUSION OF DRAWINGS OF "THE 5" I-BEAM OPEN FLOORING, WHICH DIFFERED
FROM THE IFB'S SPECIFICATIONS AND WHICH MUST BE CONSIDERED BY ITS
INCLUSION AS PART OF THE BID, RENDERED PROTESTANT'S BID NONRESPONSIVE
AND JUSTIFIED ITS REJECTION BY USAMEC. THE FACT THAT NO OTHER BIDDER,
ON THIS OR OTHER SIMILAR PROCUREMENTS, HAS HAD ANY TROUBLE WITH THE
SPECIFICATIONS INDICATES THAT THEY WERE NOT AMBIGUOUS AS ALLEGED BY
PROTESTANT.
TO GREGORY ENGINEERING CORPORATION:
REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 10, 1971, PROTESTING
AGAINST THE AWARD OF A CONTRACT TO ANOTHER CONCERN UNDER INVITATION FOR
BIDS NO. DAAK01-71-B-1943, ISSUED ON NOVEMBER 30, 1970, BY THE UNITED
STATES ARMY MOBILITY EQUIPMENT COMMAND (USAMECO), ST. LOUIS, MISSOURI.
THE SOLICITATION WAS FOR A NUMBER OF STEEL TREADWAYS AND RAMPS FOR
TREADWAY BRIDGES. THE ITEMS HAD BEEN ASSIGNED FEDERAL SUPPLY NUMBERS
(FSN) AND WERE TO BE IN ACCORDANCE WITH APPLICABLE SPECIFICATIONS.
ATTACHMENT "B" TO THE SOLICITATION, THE PURCHASE DESCRIPTION, REFERRED
BIDDERS TO DRAWINGS NOS. D-2649-1 AND D-2649-2 FOR DETAILS.
BIDS WERE OPENED ON DECEMBER 28, 1970, AND YOUR BID WAS LOW AT
$50,180. THE BID FROM SCOTT & HILL STEEL CORPORATION WAS SECOND LOW AT
$52,356.
ATTACHED TO YOUR BID WAS A DRAWING FURNISHING DESIGN DETAILS FOR A 5
INCH, I-BEAM OPEN FLOOR. A LEGEND ON THIS DRAWING STATED THAT THE
DRAWING MET ALL THE REQUIREMENTS OF THE GOVERNMENT-FURNISHED DRAWINGS
NOS. D-2649-1, D-2649-2 AND THE PURCHASE DESCRIPTION DATED AUGUST 7,
1970.
YOUR DRAWING WAS EVALUATED BY TECHNICAL PERSONNEL AT USAMECO AND IT
WAS FOUND THAT YOUR DESIGN DEVIATED FROM THE SPECIFICATION REQUIREMENTS
AND WAS UNACCEPTABLE. YOUR BID WAS THEREFORE REJECTED AS NONRESPONSIVE
AND AWARD WAS MADE TO THE SCOTT & HILL STEEL CORPORATION ON JANUARY 29,
1971, IN THE AMOUNT OF $52,356.
YOU CONTEND THAT PRIOR TO BID OPENING YOU REQUESTED AN INTERPRETATION
OF THE SPECIFICATIONS RELATING TO THE REQUIREMENTS FOR FLOORING FROM THE
PROCURING ACTIVITY AND THAT THE PROCURING ACTIVITY DECLINED TO GIVE YOU
SUCH AN INTERPRETATION. YOU URGE THAT THIS IS THE REASON YOU ATTACHED
YOUR COMMERCIAL DRAWING TO YOUR BID. YOUR BASIC CONTENTION IS THAT THE
GOVERNMENT'S PLANS AND SPECIFICATIONS WERE SO AMBIGUOUS THAT ANY STEEL
FLOOR WHICH INCLUDED 5 INCH I-BEAMS SPACED AT 6 INCH INTERVALS WOULD
MEET THE REQUIREMENTS OF THE SPECIFICATIONS.
WITH RESPECT TO YOUR CONTENTION THAT THE PROCURING OFFICE REFUSED TO
CLARIFY THE SPECIFICATIONS PRIOR TO BID OPENING, A MEMORANDUM BY THE
PROCUREMENT SPECIALIST, THE PERSON CONTACTED BY YOU FOR THE
SPECIFICATION INTERPRETATION, STATES AS FOLLOWS:
"2. THE REPRESENTATIVE QUESTIONED THE PURCHASE DESCRIPTION. HIS
QUESTIONS WERE GENERAL IN NATURE AND WERE UNCLEAR AS TO THE INFORMATION
HE WANTED. SINCE THIS WAS AN INVITATION FOR BIDS, I COULD ONLY STATE
THE REQUIREMENTS CONTAINED IN THE PURCHASE DESCRIPTION AND DRAWINGS. HE
APPARENTLY ACCEPTED MY EXPLANATION AND I FELT THE MATTER WAS CLOSED."
IT IS ALSO THE PROCURING ACTIVITY'S VIEW THAT THE SPECIFICATIONS WERE
NOT AMBIGUOUS AND THAT FOR THIS REASON IT WAS PROPER TO ANSWER YOUR
REQUEST FOR AN INTERPRETATION BY REFERRING YOU TO THE SPECIFICATIONS.
OUR OFFICE HAS BEEN FURNISHED WITH THE FOLLOWING REVIEW PREPARED BY
THE USAMECO FORWARDED TO OUR OFFICE BY LETTER DATED JULY 27, 1971,
COMPARING THE REQUIREMENTS ON THE GOVERNMENT DRAWINGS WITH THE OFFER ON
THE SKETCH FURNISHED WITH YOUR BID WHICH WAS THE BASIS FOR THE
DETERMINATION THAT YOUR BID WAS NONRESPONSIVE:
"THE TYPE OF BRIDGE OPEN FLOORING DEPICTED ON THE GOVERNMENT DRAWINGS
IS A TYPE OF STEEL GRID BRIDGE FLOOR DESIGN WHICH WAS GUIDED AND ADOPTED
BY THE AMERICAN ASSOCIATION OF STATE HIGHWAY OFFICIALS (AASHO)
SPECIFICATION FOR HIGHWAY BRIDGE DECKS. THE NOMENCLATURE USED FOR
SPECIFYING THE '5-INCH I-BEAM OPEN FLOORING' IS GEARED TO AASHO DESIGN
STANDARDS AND PERSONS FAMILIAR WITH HIGHWAY BRIDGE DESIGN, CONSTRUCTION,
OR FABRICATION SHOULD BE FAMILIAR WITH THE PICTORIAL DRAWING DESCRIPTION
OF THE DECK SHOWN ON THE GOVERNMENT DRAWINGS (D-2649-1 & 2) AND WITH THE
INFORMATION CONTAINED IN PARAGRAPH (ILLEGIBLE) OF THE PURCHASE
DESCRIPTION. THE OPEN FLOORING DEPICTED ON THE GOVERNMENT DRAWINGS WAS
MANUFACTURED FOR PREVIOUS GOVERNMENT CONTRACTS BY RELIANCE STEEL
PRODUCTS CO. AND UNITED STATES STEEL CORPORATION WHO ARE MAJOR PRODUCERS
WITH MANY DISTRIBUTORS THROUGHOUT THE COUNTRY.
"THE 5" I-BEAM OPEN FLOORING IS SHOWN ON THE GOVERNMENT DRAWING
D-2649-1 & 2 AND SPECIFIC DETAILS OF THE OPEN FLOORING ARE CONTAINED IN
THE PLAN VIEW, SECTIONS H-H, J-J, AND K-K ON THESE DRAWINGS. COMPARISON
OF THE GOVERNMENT DRAWINGS AND GREGORY'S SKETCH (INCLOSURE 1) WILL SHOW
THAT THE FLOORING IS NOT IDENTICAL OR SIMILAR. THE VIEWS AND SECTIONS
ON THE GOVERNMENT DRAWINGS SHOW THE BARS PLACED PERPENDICULAR AND
PARALLEL TO THE 5 INCH I-BEAM, WHEREAS GREGORY'S SKETCH SHOWS ONLY ONE
BAR WHICH IS PERPENDICULAR TO THE I-BEAM. THE GOVERNMENT DRAWINGS SHOW
THE LONG SIDE OF THE BARS TO BE VERTICAL WHEREAS GREGORY'S SKETCH SHOWS
THEM TO BE FLAT. THE GOVERNMENT DRAWINGS SHOW THAT THE TOP OF THE BARS
AND I-BEAMS ARE IN THE SAME PLANE, WHEREAS GREGORY'S SKETCH SHOWS THE
BARS TO BE 1/4 INCH HIGHER THAN THE I-BEAMS. THE FLOORING DEPICTED ON
THE GOVERNMENT DRAWINGS SUPPORTS A SPECIFIC AASHO LOADING AND SINCE
GREGORY'S SKETCH DOES NOT DETAIL THE I-BEAM THERE IS NO WAY TO DETERMINE
WHETHER THEIR FLOORING WOULD SUPPORT THE SAME LOAD AS THE FLOORING
DEPICTED ON THE GOVERNMENT DRAWINGS."
AS THE ABOVE QUOTE INDICATES, YOUR SKETCH SHOWED DEVIATIONS FROM THE
SPECIFICATION REQUIREMENTS.
PURSUANT TO OUR REVIEW, WE HAVE FOUND NO BASIS TO DISAGREE WITH THE
ADMINISTRATIVE DETERMINATION THAT THE SPECIFICATIONS WERE NOT AMBIGUOUS.
THE SPECIFICATIONS SEEM TO PROVIDE SUFFICIENT DETAIL TO PERMIT BIDDERS
TO DETERMINE WHAT WAS REQUIRED. APPARENTLY, NONE OF THE OTHER BIDDERS
HAD DIFFICULTY WITH THE SPECIFICATIONS. MOREOVER, THERE IS NO
INDICATION THAT BIDDERS HAD DIFFICULTY IN PRIOR PROCUREMENTS OF SIMILAR
ITEMS.
THE DRAWINGS ATTACHED TO GREGORY'S BID MUST BE CONSIDERED AS PART OF
THE BID. IN THIS REGARD WE FIND NO BASIS TO QUESTION THE DETERMINATION
THAT YOUR DRAWING WAS UNACCEPTABLE FOR THE ABOVE-STATED REASONS. THE
OVERALL OFFER ON YOUR DRAWING TO COMPLY WITH THE SPECIFICATIONS WOULD
NOT OVERCOME THE DEFICIENCY IN YOUR DRAWING WITH RESPECT TO THE FLOORING
REQUIREMENT. B-170693, DECEMBER 9, 1970, AND CASES CITED THEREIN. IN
THE CIRCUMSTANCES WE FIND NO BASIS TO QUESTION THE ADMINISTRATIVE
DETERMINATION THAT YOUR BID WAS NONRESPONSIVE.
B-171910, AUG 13, 1971
BID PROTEST - REQUIREMENT FOR CERTIFIED LABORATORY REPORT - BID
RESPONSIVENESS - BIDDER RESPONSIBILITY
DENIAL OF PROTEST BY THE FIRESTONE TIRE AND RUBBER COMPANY THAT
INFLATED PRODUCTS COMPANY, INC. WAS NONRESPONSIVE UNDER AN IFB ISSUED
BY THE U.S. ARMY MOBILITY EQUIPMENT COMMAND. FIRESTONE CONTENDS THAT
THE BID WAS NONRESPONSIVE IN THAT INFLATED FAILED TO SUBMIT A CERTIFIED
LABORATORY REPORT BEFORE BID OPENING AS REQUIRED.
THE COMP. GEN. HAS CONSISTENTLY HELD THAT A REQUIREMENT FOR
SUBMISSIONS, THE PURPOSE OF WHICH IS TO ENABLE THE CONTRACTING AGENCY TO
DETERMINE THE BIDDER'S CAPABILITY TO COMPLY WITH THE CONTRACT
SPECIFICATIONS, IS A MATTER OF THE BIDDER'S RESPONSIBILITY, AND MAY
THEREFORE BE PROVIDED SUBSEQUENT TO THE BID OPENING. THE CITED LANGUAGE
OF THE SPECIFICATION CLEARLY SHOWS THAT THIS TEST REPORT WAS TO BE USED
FOR DETERMINING BIDDER RESPONSIBILITY, AND, CONSEQUENTLY, COULD BE
SUBMITTED AFTER BID OPENING.
TO THE FIRESTONE TIRE & RUBBER COMPANY:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 21, 1971, AND SUBSEQUENT
COMMUNICATIONS TO THE DEPARTMENT OF THE ARMY, UNITED STATES ARMY
MOBILITY EQUIPMENT COMMAND, ST. LOUIS, MISSOURI, PROTESTING THAT
INFLATED PRODUCTS COMPANY, INC., WAS NONRESPONSIVE UNDER INVITATION FOR
BIDS (IFB) DAAK01-71-B-1792.
THE SUBJECT IFB WAS ISSUED OCTOBER 9, 1970, BY THE REFERENCED
ACTIVITY FOR THE PROCUREMENT OF 354 ALUMINUM-FRAMED CLOTH PASSAGEWAYS,
314 AIR-SUPPORTED SHELTER SECTIONS, ONE ADDITIONAL ITEM OF EACH FOR
FIRST ARTICLE APPROVAL, AND VARIOUS DATA PERTAINING TO EACH.
BIDS WERE OPENED DECEMBER 7, 1970, AND, AFTER THE RESOLUTION BY OUR
OFFICE OF THE PROTEST OF AIRFLOTE, INC. (B-171910, JUNE 29, 1971), THE
CONTRACTING OFFICER HAS RECOMMENDED AWARD TO INFLATED AS THE APPARENT
LOW RESPONSIVE, RESPONSIBLE BIDDER.
YOU PROTEST THAT INFLATED SHOULD BE DECLARED NONRESPONSIVE FOR
FAILURE TO SUBMIT, PRIOR TO OPENING OF BIDS, A CERTIFIED LABORATORY
REPORT CALLED FOR BY SPECIFICATION MIL-C-43285(GL). YOU COMPARE THE
REQUIREMENT TO MATTERS PERTAINING TO THE QUALIFIED PRODUCTS LIST AND YOU
CONTEND THAT FAILURE TO FURNISH A QUALIFICATION TEST REFERENCE NUMBER OR
NAME THE SOURCE FOR A QUALIFIED MATERIAL NECESSITATES REJECTION OF THE
BID. YOU ALSO CITE A DECISION OF OUR OFFICE RENDERING NONRESPONSIVE A
BID WHICH FAILED TO NAME A SOURCE OF SUPPLY, AS WELL AS OTHER DECISIONS
WHEREBY WE RULED THAT FAILURE TO LIST SUBCONTRACTORS PRIOR TO BID
OPENING ALSO NULLIFIED THE RESPONSIVENESS OF A BID.
THE SPECIFIC REQUIREMENT OF MIL-C-43285(GL) WITH WHICH YOU CONTEND
THAT INFLATED FAILED TO COMPLY BEFORE BID OPENING, AND FOR WHICH ITS BID
SHOULD THEREFORE BE DECLARED NONRESPONSIVE, IS SECTION 3.1 ENTITLED
"LABORATORY REPORT APPROVAL." THAT SECTION REQUIRES, IN ESSENCE, THAT
THE BIDDER SUBMIT TO THE CONTRACTING OFFICER A CERTIFIED COPY OF A
RECENT LABORATORY REPORT COVERING THE MATERIAL HE PROPOSES TO DELIVER,
AND THAT HE CERTIFY THAT THE MATERIAL WAS MANUFACTURED IN A PLANT WHERE
THE COATING WILL BE PERFORMED IF A CONTRACT IS AWARDED. THIS SECTION
STATES, MOST SIGNIFICANTLY, THAT:
"THE PURPOSE OF THE ABOVE REQUIREMENT IS TO ASSIST THE GOVERNMENT TO
DETERMINE THE CAPABILITY OF BIDDERS TO MANUFACTURE A CLOTH MEETING ALL
THE REQUIREMENTS OF THIS SPECIFICATION. *** "
ALTHOUGH THE CERTIFICATION OF CONFORMANCE OF MATERIALS WAS NOT
FURNISHED WITH INFLATED'S BID, THE MATERIAL WAS FURNISHED SHORTLY AFTER
BID OPENING AND, PURSUANT TO A LEGAL OPINION BY THE AGENCY, THE
CONTRACTING OFFICER DETERMINED TO WAIVE THE REQUIREMENT AS A MINOR
INFORMALITY WHICH COULD BE CORRECTED AFTER BID OPENING.
WE HAVE CONSISTENTLY HELD THAT A REQUIREMENT FOR SUBMISSIONS, THE
PURPOSE OF WHICH IS TO ENABLE THE CONTRACTING AGENCY TO DETERMINE THE
BIDDER'S CAPABILITY TO CONFORM TO AND COMPLY WITH THE SPECIFICATIONS OF
A CONTRACT, IS A MATTER OF THE BIDDER'S RESPONSIBILITY, AND MAY
THEREFORE BE PROVIDED SUBSEQUENT TO BID OPENING WITHOUT PREJUDICE TO
CONSIDERATION OF THE BID. 39 COMP. GEN. 247, 249 (1959); 39 COMP.
GEN. 655, 657-658 (1960); 39 COMP. GEN. 881, 883 (1960), 41 COMP. GEN.
106, 108 (1961). ACCORDINGLY, THE CITED LANGUAGE OF SECTION 3.1 OF
MIL-C-43285(GL), SETTING FORTH THAT SECTION'S EXPRESS PURPOSE AS BEING
TO ASSIST THE GOVERNMENT TO DETERMINE THE CAPABILITY OF BIDDERS TO
MANUFACTURE A CLOTH MEETING ALL THE REQUIREMENTS OF THIS SPECIFICATION,
CLEARLY SHOWS THAT THIS TEST REPORT WAS TO BE USED FOR DETERMINING
BIDDER RESPONSIBILITY AND, BY VIRTUE OF THE CITED DECISIONS, THE REPORT
COULD BE SUBMITTED AFTER BID OPENING. IN ADDITION, OUR EXAMINATION OF
THE SUBJECT IFB INDICATES THAT YOUR COMPARISON OF THE QUALIFIED PRODUCTS
LIST FOR END ITEMS, TO THE TEST REQUIREMENT FOR THE CLOTH TO BE USED
WITH OTHER MATERIALS IN THE MANUFACTURE OF THE END ITEMS, IS
INAPPROPRIATE AND YOUR ANALOGY TO THAT LIST DOES NOT, IN OUR VIEW,
SUPPORT YOUR POSITION.
WE HAVE REVIEWED THE DECISIONS OF OUR OFFICE WHICH YOU HAVE CITED IN
YOUR LETTER OF JULY 8, 1971, AND HAVE CONCLUDED THAT THEY ARE ALSO
INAPPLICABLE TO THE FACTUAL SITUATION IN THE INSTANT CASE. OUR DECISION
39 COMP. GEN. 531 (1960) (CITED BY YOU AS B-141357) ADDRESSED ITSELF TO
THE PROBLEM OF A BIDDER NAMING A PLACE OF MANUFACTURE ONLY AFTER BID
OPENING WHERE THE DECISION AT THAT TIME TO UTILIZE A DOMESTIC OR A
FOREIGN SOURCE (WITH A 6 PERCENT DIFFERENTIAL ADDED TO FOREIGN SOURCES)
WOULD ENABLE A BIDDER TO CONTROL HIS RELATIVE STANDING AMONG THE OTHER
BIDDERS. AS SUCH, THIS WAS A MATTER THAT MATERIALLY AFFECTED THE
EVALUATION OF BIDS AND THEREFORE THE OMISSION COULD NOT BE WAIVED AND
RENDERED THE BID NONRESPONSIVE.
THE OTHER DECISIONS CITED BY YOU B-156426, MAY 10, 1965, AND
B-156194, MARCH 4, 1965, ARE CONSIDERED INAPPLICABLE, NOT ONLY BECAUSE
THEY CONCERNED THE UNDESIRABLE PRACTICE OF BID SHOPPING AND THE FAILURE
TO LIST SUBCONTRACTORS (AN ISSUE NOT PERTINENT TO THE INSTANT CASE) BUT
ALSO BECAUSE THE SOLICITATIONS THERE INVOLVED EXPRESSLY PROVIDED FOR
REJECTION OF BIDS FOR FAILURE TO LIST THEREIN THE PROPOSED
SUBCONTRACTORS. THE IFB IN THE PRESENT CASE WAS DEVOID OF ANY SUCH
PROVISION PERTAINING TO THE TEST REPORT.
IN VIEW OF THE FOREGOING, YOUR PROTEST MUST BE DENIED.
B-172155, AUG 13, 1971
USE OF APPROPRIATED FUNDS TO PAY TELEPHONE TOLL CHARGES
ADVANCE DECISION DENYING CLAIM OF SOUTH CENTRAL BELL TELEPHONE
COMPANY FOR LONG DISTANCE TOLL CHARGES ON A CLASS B-1 (UNOFFICIAL USE)
TELEPHONE PLACED IN AN AIRMAN'S BARRACKS FOR THE PRIVATE USE OF AIRMAN
MICHAEL EDWIN SOLLERS.
SECTION 679, TITLE 31 U.S. CODE, AND SECTION 680 OF TITLE 31 BOTH
PROHIBIT THE USE OF APPROPRIATED FUNDS FOR PAYMENT OF NON-OFFICIAL TOLL
CHARGES. CONSEQUENTLY, THE AIR FORCE MAY NOT PAY THE CLAIM.
TO LIEUTENANT MITCHELL:
BY LETTER OF MARCH 9, 1971, THE AIR FORCE ACCOUNTING AND FINANCE
CENTER, DENVER, COLORADO, FORWARDED FOR OUR CONSIDERATION YOUR REQUEST
OF FEBRUARY 23, 1971, FOR AN ADVANCE DECISION ON THE CLAIM OF SOUTH
CENTRAL BELL TELEPHONE COMPANY FOR LONG-DISTANCE TOLL CHARGES IN THE
AMOUNT OF $223.85.
YOUR LETTER RELATES THAT IN ACCORDANCE WITH THE PROVISIONS OF AFM
100-22, CLASS B-1 (UNOFFICIAL USE) TELEPHONE SERVICE WAS APPLIED FOR AND
INSTALLED IN THE AIRMEN BARRACKS FOR THE PERSONAL USE OF AIRMAN MICHAEL
EDWIN SOLLERS. UNDER AF CONTRACT NO. AF33(038)-12379 AND COMMUNICATION
SERVICE AUTHORIZATION NO. EGR-SODK-42C A SPECIAL BILLING NUMBER WAS
ASSIGNED FOR IDENTIFICATION OF LONG-DISTANCE TOLLS ON THE COMMERCIAL
BILL AND SUBSEQUENT RE-BILLING BY THE AIR FORCE TO THE CLASS B
SUBSCRIBER. DURING THE PERIODS JANUARY 26, 1969, TO FEBRUARY 25, 1969,
AND MARCH 26, 1969, TO APRIL 25, 1969, LONG-DISTANCE CALLS TOTALLING
$223.85, WERE CHARGED TO AIRMAN SOLLERS' SPECIAL BILLING NUMBER FOR
WHICH HE DISCLAIMED RESPONSIBILITY. IT APPEARS THAT ANOTHER AIRMAN USED
THE PHONE AND SPECIAL BILLING NUMBER WITHOUT PERMISSION.
THE SOUTH CENTRAL BELL TELEPHONE COMPANY INSISTS THAT UNDER THE TERMS
OF THE CONTRACT THE AIR FORCE IS RESPONSIBLE FOR ALL TOLL MESSAGES
ORIGINATING AT THE BASE, AND THEREFORE SHOULD PAY THE TOLLS OF $223.85
CHARGED TO THE SPECIAL BILLING NUMBER - WHICH WERE DEDUCTED FROM THE
COMPANY'S BILLS. THE QUESTION OF THE LIABILITY OF THE AIR FORCE FOR THE
CHARGES IS RAISED IN LIGHT OF SECTION 679, TITLE 31 OF THE U.S. CODE,
WHICH PROVIDES
" *** NO MONEY APPROPRIATED BY ANY ACT SHALL BE EXPENDED FOR
TELEPHONE SERVICE INSTALLED IN ANY PRIVATE RESIDENCE OR PRIVATE
APARTMENT OR FOR TOLLS OR OTHER CHARGES FOR TELEPHONE SERVICE FROM
PRIVATE RESIDENCES OR PRIVATE APARTMENTS, EXCEPT FOR LONG-DISTANCE
TELEPHONE TOLLS REQUIRED STRICTLY FOR THE PUBLIC BUSINESS *** ."
SEE, ALSO, 31 U.S.C. 680A
" *** NO PART OF ANY APPROPRIATION FOR ANY EXECUTIVE DEPARTMENT ***
SHALL BE USED FOR THE PAYMENT OF LONG-DISTANCE TELEPHONE TOLLS EXCEPT
FOR THE TRANSACTION OF PUBLIC BUSINESS WHICH THE INTERESTS OF THE
GOVERNMENT REQUIRE TO BE SO TRANSACTED *** ."
THE USE OF APPROPRIATED FUNDS FOR THE PAYMENT OF THE UNOFFICIAL
LONG-DISTANCE CALLS IS PROHIBITED BY SECTIONS 679 AND 680A. THE
SECTIONS ARE IN EFFECT A LEGISLATIVE LIMITATION ON THE CONTRACTUAL
AUTHORITY OF THE DEPARTMENTS. OF EQUAL APPLICABILITY HEREIN ARE THE
VIEWS EXPRESSED WITH REGARD TO SECTION 680A IN A DECISION OF SEPTEMBER
10, 1969 (B-165102), TO THE SOUTHWESTERN BELL TELEPHONE COMPANY. THE
CONTENTION OF A CONTRACTUAL OBLIGATION ON THE PART OF THE AIR FORCE WAS
REJECTED -
"YOUR SECOND CONTENTION IS THAT NOTWITHSTANDING THE OFFICIAL OR
PERSONAL NATURE OF THE TELEPHONE CALL, THE AGENCY IS RESPONSIBLE 'FOR
PAYMENT OF ALL USAGE OF THAT SERVICE.' WHILE IT WOULD APPEAR, AS A
GENERAL RULE, THAT A SUBSCRIBER IS LIABLE FOR ALL LONG-DISTANCE MESSAGES
ORIGINATING FROM HIS TELEPHONE IT HAS BEEN THE CONSISTENT POSITION OF
THIS OFFICE THAT CONTRACTS WITH THE FEDERAL GOVERNMENT FOR TELEPHONE
SERVICES MUST BE MADE SUBJECT TO THE PROVISIONS OF 31 U.S.C. 680A, AND
THE GENERAL RULE IS THEREFORE INAPPLICABLE. SEE B-164699, JULY 5 (8),
1968."
AND IN A DECISION OF JULY 8, 1968 (B-164699), TO AN ACCOUNTING AND
FINANCE OFFICER OF THE AIR FORCE IT WAS STATED -
"WE HAVE HELD IN SIMILAR CASES THAT CONTRACTS FOR TELEPHONE SERVICES
MUST BE VIEWED AS HAVING BEEN MADE SUBJECT TO THE PROVISIONS OF 31
U.S.C. 680A AND THAT THE ACT CONTAINS NO AUTHORITY FOR ITS WAIVER BY AN
OFFICER OR AN EMPLOYEE OF THE GOVERNMENT IN ANY CASE - NOR DOES ANY SUCH
AUTHORITY OTHERWISE EXIST. CONSEQUENTLY, IN THE ABSENCE OF ACTUAL PRIOR
COLLECTION FROM THE INDIVIDUALS RESPONSIBLE FOR THE AMOUNTS DUE FOR SAID
CALLS, THERE APPEARS TO BE NO LEGAL BASIS FOR PAYING THE CLAIM. SEE
B-36190, AUGUST 12, 1943, AND B-90487, NOVEMBER 29, 1949."
YOU ARE ADVISED THE CLAIM OF SOUTH CENTRAL BELL TELEPHONE COMPANY MAY
NOT BE PAID BY THE AIR FORCE.
B-173148, AUG 13, 1971
BID PROTEST - SOLE SOURCE PROCUREMENT - JUSTIFICATION
DECISION DENYING PROTEST OF TRAK MICROWAVE CORPORATION AGAINST AWARD
OF SOLE SOURCE CONTRACT TO UNITED TELECONTROL ELECTRONICS, INCORPORATED
(UTE) UNDER RFQ ISSUED BY NAVY AVIATION SUPPLY OFFICE, PHILADELPHIA, PA.
SINCE IT APPEARS THE OSCILLATOR, WHICH WAS THE SUBJECT MATTER OF THIS
PROCUREMENT, WAS IMPROVED BY A CHANGE IN THE CONTRACT TO PROVIDE FOR
GREATER HEAT RESISTANCE, AND AS THE GOVERNMENT DOES NOT HAVE ADEQUATE
SPECIFICATIONS IN THE UTE PRODUCT FOR COMPETITIVE PROCUREMENT, NO BASIS
TO DISTURB THE SOLE SOURCE AWARD EXISTS. PROTEST DENIED.
TO TRAK MICROWAVE CORPORATION:
REFERENCE IS MADE TO YOUR LETTER DATED MAY 27, 1971, PROTESTING THE
AWARD OF CONTRACT NO. N00383-71-C-3873 TO UNITED TELECONTROL
ELECTRONICS, INCORPORATED (UTE), BY THE NAVY AVIATION SUPPLY OFFICE,
PHILADELPHIA, PENNSYLVANIA.
THE SUBJECT CONTRACT PROVIDES FOR THE FURNISHING OF A TOTAL QUANTITY
OF 224 OSCILLATORS, UTE PART NUMBER 92C021, AT A UNIT PRICE OF $550. IT
IS ADMINISTRATIVELY REPORTED THAT THE OSCILLATOR IS A COMPONENT OF THE
AN/APN-154 RADAR NAVIGATION SET. IT IS ALSO REPORTED THAT UTE WAS THE
ONLY FIRM SOLICITED UNDER REQUEST FOR QUOTATIONS NO. N00383-71-Q-0449
FOR FURNISHING THE OSCILLATORS BECAUSE THE GOVERNMENT DOES NOT HAVE
ADEQUATE DATA TO PROCURE THE OSCILLATORS FROM ANY OTHER COMPANY.
YOU CONTEND THAT TRAK MICROWAVE CORPORATION SHOULD HAVE BEEN ALLOWED
TO SUBMIT A QUOTATION UNDER THE SOLICITATION. YOU STATE IN THIS REGARD
THAT SINCE 1963 TRAK MICROWAVE CORPORATION HAS SUPPLIED OSCILLATORS TO
MOTOROLA, INCORPORATED, FOR INCORPORATION IN THEIR AN/APN-154 RADAR
NAVIGATION SETS; THAT YOU HAVE SUPPLIED THEM DIRECTLY TO THE AVIATION
SUPPLY OFFICE (ASO) SINCE 1967; AND THAT YOU HAVE SOLD THESE
OSCILLATORS TO UTE. YOU STATE FURTHER THAT TRAK MICROWAVE CORPORATION
HAS MANUFACTURED MORE THAN 2,000 OF THESE OSCILLATORS FOR THE NAVIGATION
SETS. YOU INDICATE THAT YOUR MOST RECENT CONTRACT FOR THESE OSCILLATORS
WITH ASO WAS CONTRACT NO. N00383-71-C-0195, DATED SEPTEMBER 1, 1970,
FOR 245 UNITS AT AN AVERAGE PRICE OF $403 EACH.
THE ADMINISTRATIVE REPORT INDICATES THAT A DETERMINATION AND FINDINGS
(D&F) WAS ISSUED DECEMBER 4, 1970, PROVIDING FOR THE PROCUREMENT UNDER
THE AUTHORITY OF 10 U.S.C. 2304(A)(10), AS IMPLEMENTED BY ASPR
3-210.2(XV) FROM UTE. THE STATUTORY PROVISION AUTHORIZES PROCUREMENT
WITHOUT FORMAL ADVERTISING WHEN IT IS IMPRACTICAL TO OBTAIN COMPETITION.
THE ASPR PROVISION AUTHORIZES THE USE OF THE STATUTORY AUTHORITY WHEN
THE PROCUREMENT IS FOR PARTS OR COMPONENTS BEING PROCURED AS REPLACEMENT
PARTS IN SUPPORT OF EQUIPMENT SPECIALLY DESIGNED BY THE MANUFACTURER,
WHEN DATA AVAILABLE IS NOT ADEQUATE TO ASSURE THAT THE PART OR COMPONENT
WILL PERFORM THE SAME FUNCTION IN THE EQUIPMENT AS THE PART OR COMPONENT
IT IS TO REPLACE.
THE CONTRACTING OFFICER IN JUSTIFYING THE SOLE SOURCE SOLICITATION
STATES AS FOLLOWS:
"3. THE GOVERNMENT DOES NOT HAVE A SPECIFICATION FOR OSCILLATORS;
IT DOES, HOWEVER, HAVE A PERFORMANCE SPECIFICATION FOR THE AN/APN-154
NAVIGATION SET AND IT DOES HAVE A SET OF DRAWINGS FOR THE NAVIGATION SET
THAT WAS PREPARED BY MOTOROLA AND DELIVERED TO THE GOVERNMENT
APPROXIMATELY EITHT YEARS AGO. THE DRAWINGS DO NOT CONTAIN DETAILS OF
THE TRAK OSCILLATOR; TRAK HAS MAINTAINED THAT SUCH DETAILS ARE
PROPRIETARY TO IT AND HAS REFUSED TO FURNISH SUCH DATA TO THE
GOVERNMENT. IT IS FURTHER UNDERSTOOD THAT BOTH MOTOROLA AND UTE HAVE
BOUGHT OSCILLATORS FROM TRAK FOR THE INCLUSION IN RADAR NAVIGATION SETS
MANUFACTURED BY THEM FOR THE GOVERNMENT. THIS OFFICE HAS ALSO BOUGHT
OSCILLATORS FROM TRAK AND SUCH PURCHASES WERE MADE ON A SOLE SOURCE
BASIS BECAUSE OF THE LACK OF DATA; THE PURCHASES WERE MADE TO THE TRAK
PART NUMBER APPLICABLE TO THE TRAK OSCILLATORS CONTAINED IN THE RADAR
NAVIGATION SETS DELIVERED TO THE GOVERNMENT.
"4. BY AN ECP (ENGINEERING CHANGE PROPOSAL) DATED 9 APRIL 1970
(EXHIBIT E) SUBMITTED UNDER CONTRACT N383-70-C-0473, UTE PROPOSED A
CHANGE TO THE OSCILLATOR TO IMPROVE ITS HEAT RESISTANT CHARACTERISTICS.
THE CHANGE, WHICH PROVIDED FOR THE FURNISHING OF AN OSCILLATOR THAT
WOULD OPERATE AT TEMPERATURES UP TO AT LEAST 110 DEGS C IN LIEU OF 70
DEGS C WAS CONSIDERED ESPECIALLY DESIRABLE BECAUSE THE RADAR NAVIGATION
SETS ARE MOUNTED IN AIRCRAFT IN AREAS SUBJECTED TO HIGH TEMPERATURE
EXTREMES. THE ECP WAS APPROVED AND THE CONTRACT MODIFIED ON 16
SEPTEMBER 1970 TO PROVIDE FOR THE INCLUSION OF THE IMPROVED OSCILLATOR
IN THE NAVIGATION SETS TO BE DELIVERED UNDER THE CONTRACT. THE RESULT
OF THIS CHANGE WAS THE RECEIPT OF EQUIPMENTS WITH IMPROVED STABILITY,
RELIABILITY, AND SERVICE LIFE. THE GOVERNMENT DOES NOT HAVE
SPECIFICATIONS FOR THE UTE OSCILLATOR THAT ARE ADEQUATE FOR COMPETITIVE
PROCUREMENT PURPOSES AND, SINCE THE TRAK OSCILLATOR DOES NOT CONTAIN THE
HIGH HEAT RESISTANT CHARACTERISTICS OF THE UTE OSCILLATOR, ONLY UTE WAS
SOLICITED FOR THE FURNISHING OF OSCILLATORS. THE GOVERNMENT HAS,
HOWEVER, CONTRACTED WITH UTE FOR THE FURNISHING OF AN UPDATED SET OF
DRAWINGS AND FOR A REVISED SPECIFICATION WHICH WILL, IT IS CONSIDERED,
BE ADEQUATE FOR FUTURE COMPETITIVE PROCUREMENT OF OSCILLATORS. DELIVERY
OF THE DRAWINGS AND REVISED SPECIFICATIONS, WHICH HAS BEEN DELAYED FOR
APPROXIMATELY ONE YEAR (IN PART BECAUSE OF CHANGES REQUESTED BY THE
GOVERNMENT), IS NOW SCHEDULED FOR DELIVERY ON 31 JULY 1971."
SINCE IT APPEARS THE OSCILLATOR WAS IMPROVED BY THE CHANGE UNDER
CONTRACT NO. N383-70-C-0473 AND THE GOVERNMENT DOES NOT HAVE ADEQUATE
SPECIFICATIONS OF THE UTE PRODUCT FOR COMPETITIVE PROCUREMENT, WE FIND
NO REASON TO QUESTION THE PROCUREMENT ON A SOLE-SOURCE BASIS, OR TO
OTHERWISE JUSTIFY DISTURBING THE AWARD. ACCORDINGLY, YOUR PROTEST IS
DENIED.
B-173464, AUG 13, 1971
MILITARY PERSONNEL - CIRCUITOUS AND MIXED TRAVEL-REIMBURSEMENT
DECISION AFFIRMING SETTLEMENT WHICH ALLOWED IN PART CLAIM OF MASTER
SERGEANT PEDRO VASQUEZ FOR REIMBURSEMENT OF TRAVEL AND DISLOCATION
ALLOWANCE FOR HIMSELF AND HIS DEPENDENTS, INCIDENT TO CHANGE OF STATIONS
FROM QUINTO, ECUADOR TO ENT AIR FORCE BASE, COLO. WITH ADDITIONAL
ALLOWANCE FOR TIPS.
CIRCUITOUS AND MIXED TRAVEL WERE AUTHORIZED; THEREFORE, PROVISIONS
OF JTR DEALING WITH THESE ARE CONTROLLING, NOT THOSE DEALING WITH RATE
FAVORABLE POINT FOR COMMERCIAL AIR AS ALLEGED BY CLAIMANT.
REGARDLESS OF THE CIRCUITOUS ROUTE TAKEN BY CLAIMANT, THE GOVERNMENT
IS LIABLE ONLY FOR MOST DIRECT ROUTE OF TRAVEL, WHICH IN THIS CASE WAS:
FROM QUINTO, ECUADOR TO THE PANAMA CANAL ZONE AS PERFORMED, THENCE TO
CHARLESTON, S.C. BY MILITARY AIRLIFT COMMAND, AND THENCE TO ENT AIR
FORCE BASE, COLO. BY PRIVATELY OWNED VEHICLE, PLUS PER DIEM,
MISCELLANEOUS EXPENSES AND DISLOCATION ALLOWANCES. SETTLEMENT ON THIS
BASIS WAS CORRECT, EXCEPT THAT THE $60 CLAIM FOR TIPS INCIDENT TO TRAVEL
BY COMMERCIAL VESSEL FROM GUAYAQUIL, ECUADOR TO THE PANAMA CANAL ZONE
SHOULD HAVE BEEN ALLOWED UNDER PARAGRAPH M7002-3-7 OF THE JTR.
TO MASTER SERGEANT PEDRO VASQUEZ:
WE AGAIN REFER TO YOUR LETTER OF JUNE 18, 1971, REQUESTING REVIEW OF
THE SETTLEMENTS OF MAY 5, 1971, WHICH ALLOWED PORTIONS OF YOUR CLAIMS
FOR REIMBURSEMENT FOR TRAVEL BY YOU AND YOUR DEPENDENTS FROM QUITO,
ECUADOR, TO ENT AIR FORCE BASE, COLORADO, AND FOR DISLOCATION ALLOWANCE.
THE TRAVEL WAS PERFORMED DURING THE PERIOD JULY 31 TO AUGUST 20, 1970.
BY SPECIAL ORDER NO. AA-1035, DATED MAY 20, 1970, YOU WERE
TRANSFERRED FROM USAF FOREIGN MISSION SQUADRON AT QUITO, ECUADOR, TO
PETERSON FIELD AT ENT AIR FORCE BASE, COLORADO, AS A CHANGE OF PERMANENT
STATION AND DIRECTED TO PROCEED ON OR ABOUT AUGUST 5, 1970. CONCURRENT
TRAVEL OF YOUR WIFE AND FOUR CHILDREN WAS AUTHORIZED.
YOUR ORDERS STATED THAT ITEM 9 ON THE REVERSE OF THE ORDERS APPLIES.
ITEM 9 PROVIDED THAT:
"INDIVIDUAL IS BEING RELIEVED FROM AN ACCREDITED POSITION.
GOVERNMENT BILLS OF LADING WILL BE OBTAINED FROM THE TRANSPORTATION
OFFICER, HOWARD AFB, CZ AND WILL CONTAIN THE FOLLOWING STATEMENT:
'REIMBURSEMENT WILL BE OBTAINED FROM THE COUNTRY FROM WHICH THE
INDIVIDUAL IS BEING REASSIGNED BY THE FINANCE SVC BR, AFAFC.'"
WITH RESPECT TO THE MODE AND ROUTE OF TRAVEL, YOUR ORDERS DID NOT
SPECIFY THAT ITEM 6 (CIRCUITOUS TRAVEL) APPLIED. HOWEVER, THE ORDERS
STATED THAT YOU AND YOUR DEPENDENTS WERE AUTHORIZED SURFACE
TRANSPORTATION FROM GUAYAQUIL, ECUADOR, TO THE CANAL ZONE AND TRAVEL BY
PRIVATELY OWNED CONVEYANCE FROM THE CANAL ZONE TO THE CONTINENTAL UNITED
STATES. SINCE IT DOES NOT APPEAR THAT THIS IS THE NORMAL ROUTE BUT WAS
AUTHORIZED BECAUSE YOU INTENDED TO VISIT MCALLEN, TEXAS, ON LEAVE,
CIRCUITOUS TRAVEL WAS IN FACT AUTHORIZED AND PERFORMED. ITEM 6 OF YOUR
ORDERS PROVIDED THAT WHEN CIRCUITOUS TRAVEL IS AUTHORIZED REIMBURSEMENT
WILL NOT EXCEED THE COST BY THE USUAL NORMAL ROUTE AND THAT THE NORMAL
ROUTE FROM THE CANAL ZONE IS BY MAC AIRCRAFT TO CHARLESTON AIR FORCE
BASE, SOUTH CAROLINA.
TRANSPORTATION FROM QUITO TO GUAYAQUIL, ECUADOR, WAS PERFORMED BY
GOVERNMENT AIR. TRAVEL FROM THE LATTER POINT TO PANAMA, CANAL ZONE, WAS
BY COMMERCIAL VESSEL FOR WHICH YOU WERE FURNISHED A TRANSPORTATION
REQUEST. YOU AND YOUR DEPENDENTS TRAVELED BY COMMERCIAL AIR FROM PANAMA
TO MEXICO CITY, MEXICO, SAN ANTONIO, TEXAS, AND MCALLEN, TEXAS, AND
THENCE BY PRIVATELY OWNED VEHICLE TO ENT AIR FORCE BASE, COLORADO. BY
THE SETTLEMENTS OF MAY 5, 1971, YOU WERE ALLOWED $200.11 AS
REIMBURSEMENT FOR YOUR TRAVEL AND $594.78, AS REIMBURSEMENT FOR TRAVEL
OF YOUR DEPENDENTS COMPUTED ON THE BASIS OF TRAVEL FROM QUITO, ECUADOR,
TO THE CANAL ZONE AS PERFORMED, THENCE BY MILITARY AIRLIFT COMMAND TO
CHARLESTON, SOUTH CAROLINA, AND MILEAGE FROM THERE TO ENT AIR FORCE
BASE, COLORADO, PLUS PER DIEM, MISCELLANEOUS EXPENSES AND DISLOCATION
ALLOWANCE. THE AMOUNT OF $60 CLAIMED AS TIPS ON BOAT WAS DISALLOWED IN
THE ABSENCE OF AN ITEMIZATION.
IN YOUR PRESENT LETTER YOU SAY NO ONE HAS EXPLAINED WHY REIMBURSEMENT
IS NOT AUTHORIZED FOR THE TRAVEL AS PERFORMED EXCEPT THAT THE NORMAL
ROUTE IS MILITARY AIR FROM THE CANAL ZONE TO CHARLESTON, SOUTH CAROLINA.
YOU SAY YOU WERE ASSIGNED TO A UNITED STATES MILITARY ASSISTANCE GROUP
IN QUITO, ECUADOR, NOT TO THE CANAL ZONE. YOU CONTEND THAT UNDER THE
PROVISIONS OF AIR FORCE MANUAL 75-8(3) ATTACHMENT 1, YOU WERE AUTHORIZED
COMMERCIAL AIR TRAVEL TO AND FROM ECUADOR, BUT WERE NOT FURNISHED A
TRANSPORTATION REQUEST FROM THE CANAL ZONE.
YOU MENTION THAT YOU AND YOUR FAMILY TRAVELED FROM MOUNTAIN HOME AIR
FORCE BASE, IDAHO, TO QUITO, ECUADOR, BY COMMERCIAL AIR IN 1967, AND
THAT SOME PERSONNEL IN YOUR GROUP WERE RETURNED TO NEW JERSEY BY
COMMERCIAL VESSEL. YOU CONTEND YOU SHOULD BE REIMBURSED FOR TRAVEL AS
PERFORMED FOR THE REASONS THAT YOU WERE BEING RELIEVED FROM AN
ACCREDITED POSITION. YOU CITE PARAGRAPH M4150-1-4 OF THE JOINT TRAVEL
REGULATIONS AS APPLICABLE TO YOUR TRAVEL AND, AS TO THE AMOUNT OF $60
CLAIMED AS TIPS, YOU SAY THIS WAS PAID TO STEWARDS AND ATTENDANTS ON
BEHALF OF YOUR DEPENDENTS WHILE EN ROUTE FROM GUAYAQUIL, ECUADOR, TO
PANAMA, CANAL ZONE.
THE TRANSPORTATION OF MEMBERS OF THE UNIFORMED SERVICES AND THEIR
DEPENDENTS IS GOVERNED BY THE JOINT TRAVEL REGULATIONS PROMULGATED
PURSUANT TO 37 U.S.C. 404 AND 406. PARAGRAPH M4159 OF THE REGULATIONS
PROVIDES THAT FOR TRANSOCEANIC TRAVEL WHEN GOVERNMENT AIRCRAFT OR VESSEL
IS AVAILABLE AND THE MEMBER PERFORMS TRAVEL BY ANOTHER MODE OF
TRANSPORTATION AT PERSONAL EXPENSE, REIMBURSEMENT MAY BE AUTHORIZED NOT
TO EXCEED THE COST OF TRAVEL BY THE AVAILABLE GOVERNMENT TRANSPORTATION.
THE FACT THAT YOU WERE RELIEVED FROM AN ACCREDITED POSITION WITH AN AIR
FORCE FOREIGN MISSION RELATED TO ALLOCATION OF COST TO THE COUNTRY
INVOLVED. IT DID NOT DETERMINE YOUR TRAVEL AND TRANSPORTATION
ENTITLEMENT FOR YOURSELF AND DEPENDENTS.
PARAGRAPH M4154-3, JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO
THE PROVISIONS OF 37 U.S.C. 404, PROVIDES IN PERTINENT PART, THAT FOR
THE PURPOSE OF DETERMINING ALLOWANCES PAYABLE WHEN MIXED TRAVEL IS
PERFORMED, EACH PORTION WILL BE CONSIDERED TO BE A SEPARATE JOURNEY,
INCLUDING THE TRAVEL BETWEEN A STATION LOCATED OUTSIDE THE UNITED STATES
AND THE PORT OF EMBARKATION (OR DEBARKATION) OUTSIDE THE UNITED STATES
SERVING THAT STATION; TRAVEL BETWEEN A POINT OF EMBARKATION AND A POINT
OF DEBARKATION; AND TRAVEL BETWEEN A STATION IN THE UNITED STATES AND A
POINT OF EMBARKATION (OR DEBARKATION) IN THE UNITED STATES SERVING THAT
STATION. THIS WAS DONE IN YOUR CASE.
PARAGRAPH M4150-1-4 OF THE JOINT TRAVEL REGULATIONS, CITED BY YOU,
WHICH AUTHORIZES REIMBURSEMENT OF ACTUAL COST OF TRANSPORTATION WHEN
TRANSPORTATION REQUESTS ARE NOT ISSUED, DOES NOT AFFORD AUTHORITY FOR
REIMBURSEMENT OF THE COST OF CIRCUITOUS TRAVEL IN EXCESS OF TRAVEL BY
THE USUAL ROUTE.
IT LONG HAS BEEN THE ESTABLISHED RULE THAT TRAVEL OF MEMBERS OF THE
UNIFORMED SERVICES AND THEIR DEPENDENTS, FOR REIMBURSEMENT PURPOSES, IS
REQUIRED TO BE COMPUTED ON THE MOST DIRECT, USUALLY TRAVELED ROUTE
BETWEEN THE POINTS INVOLVED AND ADDITIONAL EXPENSES MAY NOT BE
AUTHORIZED FOR CIRCUITOUS TRAVEL. 7 COMP. GEN. 840 (1928), 9 COMP. GEN.
210 (1929), AND 47 COMP. GEN. 440 (1968).
PARAGRAPH 8-14 (CHAPTER 3) OF AIR FORCE MANUAL 75-8 SETTING FORTH THE
POLICY OF THE AIR FORCE ON CIRCUITOUS TRAVEL, PROVIDES THAT THE NORMAL
ROUTING OF PERSONNEL TO AND FROM OVERSEAS IS CONTAINED IN ATTACHMENT 1.
THAT ATTACHMENT SHOWS THAT TRAVEL BY THE NORMAL MODE FOR ALL PASSENGERS
TO AND FROM QUITO, ECUADOR, IS COMMERCIAL AIR VIA A RATE FAVORABLE
POINT. THUS, TRANSPORTATION TO THE UNITED STATES BY COMMERCIAL AIR
COULD HAVE BEEN AUTHORIZED FOR DIRECT TRAVEL. YOU DID NOT, HOWEVER,
PERFORM ALL OF THE TRAVEL BY COMMERCIAL AIR AS CONTEMPLATED BY THAT
REGULATION BUT WERE FURNISHED GOVERNMENT TRANSPORTATION TO THE CANAL
ZONE. ACCORDINGLY, AS EXPLAINED ABOVE, THE MIXED TRAVEL PROVISIONS OF
THE JOINT TRAVEL REGULATIONS WERE APPLIED IN COMPUTING THE AMOUNT DUE AS
REIMBURSEMENT FOR THE TRAVEL AS PERFORMED.
IN THIS REGARD IT MAY BE NOTED THAT USE OF THE JOINT TRAVEL
REGULATIONS PROVISIONS WAS TO YOUR ADVANTAGE. THE RATE FAVORABLE POINT
FOR COMMERCIAL AIR FROM QUITO, ECUADOR, IS MIAMI, FLORIDA. HAD
REIMBURSEMENT BEEN COMPUTED ON THAT BASIS YOU WOULD HAVE BEEN ENTITLED
TO THE COST OF COMMERCIAL AIR TRANSPORTATION FOR YOURSELF AND DEPENDENTS
FROM QUITO TO MIAMI ($698.50), PLUS MILEAGE FROM THAT POINT TO ENT AIR
FORCE BASE ($473.28) AND DISLOCATION ALLOWANCE ($114.90) OR A TOTAL OF
$1,286.68 LESS THE COST OF TRANSPORTATION FURNISHED BY THE GOVERNMENT
FROM QUITO TO GUAYAQUIL TO PANAMA. THE COST OF TRANSPORTATION FROM
QUITO TO GUAYAQUIL IS NOT SHOWN. HOWEVER, THE COST FROM THE LATTER
POINT TO PANAMA ALONE WAS $1,032.50, LEAVING A BALANCE OF $254.18
INCLUDING DISLOCATION ALLOWANCE FOR TRAVEL TO ENT AIR FORCE BASE. ALSO,
AN ADJUSTMENT WOULD BE REQUIRED IN PER DIEM AND MISCELLANEOUS EXPENSES.
THIS WOULD RESULT IN A SMALLER AMOUNT DUE THAN THE AMOUNT DETERMINED
UNDER THE METHOD USED.
PARAGRAPH M7002-3-7 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT
REIMBURSEMENT FOR TIPS TO STEWARDS AND OTHER ATTENDANTS PAID BY OR ON
BEHALF OF DEPENDENTS WHO PERFORM AUTHORIZED TRAVEL ABOARD COMMERCIAL
VESSELS IS AUTHORIZED NOT TO EXCEED A DAILY RATE OF $18 FOR FIVE
DEPENDENTS. SINCE THE TRAVEL BY COMMERCIAL VESSEL WAS PERFORMED ON FOUR
DAYS YOU ARE ENTITLED TO ADDITIONAL REIMBURSEMENT IN THE AMOUNT OF $60
FOR THE TIPS GIVEN TO THE STEWARDS AND ATTENDANTS ABOARD THE VESSEL. A
SETTLEMENT IN THAT AMOUNT WILL ISSUE IN DUE COURSE. OTHERWISE, THE
SETTLEMENTS OF MAY 5, 1971, WERE CORRECT AND ARE SUSTAINED.
B-162473, AUG 12, 1971
TO MR. ANTHONY TRIPANI:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 27, 1971, WITH
ENCLOSURES, PERTAINING TO YOUR CLAIM AS EXECUTOR OF THE ESTATE OF YOUR
LATE BROTHER, ANDREW TRIPANI, FOR ARREARS OF PAY AND ALLOWANCES DUE HIM
AT DATE OF DEATH, MARCH 11, 1967, AS STAFF SERGEANT, REGULAR ARMY.
WITH YOUR LETTER, YOU ENCLOSED A LETTER OF MAY 25, 1971, AND COPIES
OF DOCUMENTS IN SUPPORT OF YOUR CONTENTION THAT AFTER HIS ARRIVAL IN
VIETNAM, YOUR BROTHER WAS HAVING DIFFICULTIES IN HAVING HIS ALLOTMENT OF
PAY SENT TO THE FIRST NATIONAL BANK, COLORADO SPRINGS, COLORADO, FOR
CREDIT TO A SAVINGS ACCOUNT IN HIS NAME. OTHER THAN THE MEMBER'S PAY
RECORDS FROM JANUARY 1 THROUGH OCTOBER 31, 1966, AND A COPY OF A
GOVERNMENT CHECK, SAID TO BE IN THE AMOUNT OF $871.15, COPIES OF THESE
DOCUMENTS HAVE BEEN PREVIOUSLY RECEIVED.
YOU SAY THAT THE PROCEEDS OF THE CANCELLED CHECK WAS NEVER
RE-CREDITED TO YOUR BROTHER'S PAY ACCOUNT. IT IS YOUR BELIEF THAT IF
THE CHECK HAD BEEN PROPERLY HANDLED AND THE ARMY FINANCE CENTER HAD
FOLLOWED YOUR BROTHER'S INSTRUCTIONS REGARDING HIS ALLOTMENT, THERE
WOULD HAVE BEEN NOTHING DUE YOUR BROTHER AT THE TIME OF HIS DEATH, OTHER
THAN FOR THE 11-DAY PERIOD IN MARCH 1967. YOU CONTEND THAT IT WOULD BE
A SIMPLE MATTER FOR THE FINANCE CENTER TO CORRECT THIS ERROR BY SENDING
THOSE FUNDS TO THE BANK FOR DEPOSIT TO YOUR BROTHER'S SAVINGS ACCOUNT
WHICH HAS BEEN LEFT OPEN FOR THAT PURPOSE. YOU THEREFORE REQUEST OUR
ASSISTANCE TO CORRECT THE ERROR, PRIOR TO YOUR PROCEEDING FURTHER IN THE
MATTER WITH COURT PROCEEDINGS.
IN OUR DECISION OF OCTOBER 5, 1967, B-162473, WE ADVISED YOU THAT
UNDER THE PROVISIONS OF 10 U.S.C. 2771, THE AMOUNT DUE FROM THE ARMED
FORCE OF WHICH YOUR BROTHER WAS A MEMBER, MUST BE DISTRIBUTED IN
ACCORDANCE WITH THE ORDER OF PRECEDENCE SET FORTH IN THAT SECTION. WE
THEREFORE HELD THAT THE MEMBER'S FATHER WHO WAS STILL LIVING AT THE DATE
OF YOUR BROTHER'S DEATH HAD PRECEDENCE OVER A LEGAL REPRESENTATIVE OF
THE DECEDENT OR HIS BROTHERS.
REGARDLESS OF THE REASON FOR THE FAILURE TO MAKE THE ALLOTMENT
PAYMENTS TO THE BANK DURING YOUR BROTHER'S LIFETIME THERE IS NO LEGAL
AUTHORITY FOR FURTHER PAYMENT OF THE ALLOTMENT TO THE BANK AFTER RECEIPT
OF NOTICE OF HIS DEATH. THE AMOUNT DUE IN THIS CASE IS THEREFORE FOR
DISTRIBUTION UNDER THE PROVISIONS OF 10 U.S.C. 2771 AND UNDER THOSE
STATUTORY PROVISIONS PAYMENT MAY NOT BE MADE TO THE EXECUTOR OF YOUR
BROTHER'S WILL SINCE HE WAS SURVIVED BY HIS FATHER.
WHEN A GOVERNMENT CHECK IS CANCELLED PRIOR TO ITS NEGOTIATION NO
PAYMENT HAS BEEN MADE AND PRESUMABLY THE $3,251.85 REPORTED BY THE ARMY
FINANCE CENTER, INDIANAPOLIS, INDIANA, TO BE DUE IN THIS CASE, ALTHOUGH
NOT ITEMIZED, INCLUDES THE AMOUNT OF THE CANCELLED CHECK, $871.15.
UNDER THE GOVERNING STATUTORY PROVISIONS WE MAY AUTHORIZE PAYMENT OF THE
AMOUNT DUE ONLY TO THE FATHER.
IN THIS REGARD, YOUR FATHER HAS NOT FILED A CLAIM FOR THE AMOUNT DUE.
IF NO CLAIM IS RECEIVED FROM HIM FOR A PERIOD OF 10 YEARS FROM DATE OF
HIS SON'S DEATH, ALL CLAIMS FOR THE AMOUNT DUE WILL BE BARRED BY THE ACT
OF OCTOBER 9, 1940, 54 STAT. 1061; 31 U.S.C. 71A.
B-170654, AUG 12, 1971
TO TYCO, INCORPORATED:
WE REFER TO YOUR LETTERS OF FEBRUARY 10, 1971, AND MARCH 2, 1971,
WHICH COMMENT FURTHER AND RAISE CERTAIN QUESTIONS REGARDING OUR
DECISIONS OF JANUARY 6, 1971, AND FEBRUARY 8, 1971, IN CONNECTION WITH
YOUR PROTEST UNDER SOLICITATION D0943150, ISSUED BY THE DEFENSE
ELECTRONICS SUPPLY CENTER, DAYTON, OHIO.
YOUR FIRST QUESTION RELATES TO 10 U.S.C. 2305(D) AND ASKS IF THAT
SECTION APPLIES TO NEGOTIATED PROCUREMENTS SUCH AS D0943150, AS WELL AS
TO FORMALLY ADVERTISED PROCUREMENTS. THE COMPLETE SECTION IS AS
FOLLOWS:
"(D) IF THE HEAD OF THE AGENCY CONSIDERS THAT ANY BID RECEIVED AFTER
FORMAL ADVERTISING EVIDENCES A VIOLATION OF THE ANTITRUST LAWS, HE SHALL
REFER THE BID TO THE ATTORNEY GENERAL FOR APPROPRIATE ACTION."
WHILE THE UNITED STATES CODE DOES NOT REQUIRE SUCH REFERRAL AFTER
OTHER THAN FORMAL ADVERTISING, ASPR 1-111.2 ADMINISTRATIVELY EXTENDS THE
REQUIREMENT TO NEGOTIATED PROCUREMENTS.
WITH RESPECT TO YOUR QUESTION REGARDING THE STATUS OF GENERAL MOTORS
AS THE "MANUFACTURER" OF THE PART INVOLVED IN SOLICITATION D0943150, THE
REFERENCES TO "MANUFACTURER" AND "DEALERS" IN OUR LETTER OF FEBRUARY 8,
1971, WERE INTENDED ONLY TO BE RESPONSIVE TO THE QUESTION PRESENTED IN
THE FIFTH PARAGRAPH OF YOUR JANUARY 11 LETTER, AND OUR USE OF QUOTATION
MARKS WITH SUCH TERMS WAS FOR THE PURPOSE OF CONVEYING THAT INTENTION.
ASIDE FROM THE FOREGOING, HOWEVER, YOUR PRESENT QUESTION DOES NOT APPEAR
TO HAVE ANY PARTICULAR RELEVANCE. WE HAVE PREVIOUSLY ADVISED YOU IN OUR
DECISION B-166285, NOVEMBER 26, 1969, THAT THE WALSH-HEALEY PUBLIC
CONTRACTS ACT, 41 U.S.C. 35-45, PROVIDES THAT, WITH CERTAIN EXCEPTIONS,
EVERY GOVERNMENT SUPPLY CONTRACT EXCEEDING $10,000 IN AMOUNT SHALL
CONTAIN A STIPULATION THAT THE CONTRACTOR IS A MANUFACTURER OF OR
REGULAR DEALER IN SUCH SUPPLIES. THE CONTRACT IN QUESTION HERE IS IN
THE AMOUNT OF $6,620.55. IN VIEW THEREOF, THERE IS NO REQUIREMENT THAT
THE STATUS OF THE CONTRACTOR AS A REGULAR DEALER OR MANUFACTURER BE
DETERMINED.
WHILE DECISIONS OF THIS OFFICE ARE REVIEWABLE WHEN MATERIAL ERRORS OF
EITHER FACT OR LAW ARE ALLEGED AND IDENTIFIED, THE VARIOUS QUESTIONS YOU
HAVE DIRECTED TO THIS OFFICE SINCE OUR ORIGINAL DECISION WAS RENDERED ON
JANUARY 6, 1971, DO NOT SEEM TO BE SO ORIENTED, AND THE OBJECTIVE TO
WHICH THEY MAY BE DIRECTED IS NOT APPARENT.
IN VIEW THEREOF, AND SINCE THE RESOURCES OF THIS OFFICE ARE LIMITED
AND THE NECESSARY DEMANDS UPON SUCH RESOURCES ARE GREATER THAN WE ARE
ABLE TO COMPLY WITH, IT IS REQUESTED THAT ANY FURTHER CORRESPONDENCE BE
LIMITED TO A REQUEST FOR RECONSIDERATION IN THE FORM SET OUT ABOVE.
B-170789, AUG 12, 1971
BID PROTEST - PURCHASE DESCRIPTION
DECISION AFFIRMING PREVIOUS DENIALS OF A PROTEST BY FREE-FLOW
PACKAGING CORPORATION UNDER AN IFB ISSUED BY THE DEFENSE ELECTRONICS
SUPPLY CENTER.
IT IS THE COMP. GEN.'S VIEW THAT PROTESTANT HAS PRESENTED NO NEW
INFORMATION WHICH JUSTIFIES REVERSAL OF THE PREVIOUS DECISIONS.
TO FREE-FLOW PACKAGING CORPORATION:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 18, 1971, REQUESTING
RECONSIDERATION OF OUR DECISION OF JUNE 16, 1971, B-170789, IN WHICH WE
AFFIRMED AN EARLIER DECISION DENYING YOUR PROTEST UNDER INVITATION FOR
BIDS NO. DSA900-71-B-0208, ISSUED BY THE DEFENSE ELECTRONICS SUPPLY
CENTER, DAYTON, OHIO.
THE REQUEST FOR RECONSIDERATION IS BASED UPON YOUR CONTENTION THAT
THE DECISION IS PREMISED UPON THE ERRONEOUS ASSUMPTIONS THAT THERE IS NO
STANDARD FEDERAL PURCHASE DESCRIPTION FOR PACKAGING MATERIALS; THAT
BECAUSE THERE IS NO STANDARD FEDERAL PURCHASE DESCRIPTION FOR
POLYSTYRENE PACKING MATERIALS EACH AGENCY MUST WRITE ITS OWN
REQUIREMENTS; THAT THE DESC PURCHASE DESCRIPTION IS BASED IN PART ON A
REPORT OF A STUDY CONDUCTED IN 1970 BY THE GENERAL SERVICES
ADMINISTRATION; THAT DESC'S USE OF A SPAGHETTI-STYLE POLYSTYRENE IS
BASED ON A DESC PRIOR STUDY INDICATING THAT THE SMALLER SIZES OF
POLYSTYRENE DO NOT PROVIDE THE SAME DEGREE OF RESISTANCE TO MIGRATION AS
THE LONGER INTERLOCKING STRANDS; AND THAT THE SMALLER CONFIGURATIONS
INCREASED SHIPPING COSTS BECAUSE MORE POUNDS OF DUNNAGE ARE NEEDED TO
FILL A GIVEN SPACE.
IN REFUTATION OF THESE "ERRONEOUS ASSUMPTIONS," YOU STATE THAT THERE
IS A PURCHASE DESCRIPTION FOR POLYSTYRENE FREE-FLOWING CUSHIONING
MATERIAL, CITING GSA SPECIFICATION NO. 70-FMSX-TPO-002; THAT THE DESC
PURCHASE DESCRIPTION WAS WRITTEN LONG BEFORE THE 1970 GSA REPORT; THAT
YOU ARE NOT AWARE OF THE DESC "PRIOR STUDY" REFERRED TO, AND THAT THE
FACTS ATTRIBUTED THERETO ARE CONTRARY TO TESTS BY MANY IN INDUSTRY AND
OTHER GOVERNMENT AGENCIES, INCLUDING TOBYHANNA; AND THAT THE
FREE-FLOWING MATERIALS HAVE LIGHTER DENSITIES AND INVOLVE LESS SHIPPING
COSTS AND LESS LABOR COSTS IN THEIR USE.
THE STATEMENT IN OUR DECISION CONCERNING THE LACK OF A STANDARD
FEDERAL PURCHASE DESCRIPTION WAS MADE WITH REFERENCE TO THE PARTICULAR
NEEDS OF DESC. WHILE THE GSA SPECIFICATION YOU CITE COVERS "FLOWABLE"
MATERIAL, DESC'S REQUIREMENTS ARE FOR "LOOSE-FILL" RATHER THAN
FREE-FLOWING MATERIAL. IN THIS CONNECTION, DESC ADVISES THAT GSA IS NOW
STOCKING POLYSTYRENE STRANDS UNDER SPECIFICATION NO. GSA-07-8135-211070,
FSN-8135-181-7833, AND THAT IT IS BEING REVIEWED FOR POSSIBLE USE.
OUR DECISION STATED THAT IT APPEARS THE DESC PURCHASE DESCRIPTION IS
BASED IN PART ON A 1970 GSA REPORT. AS YOU INDICATE, THIS IS FACTUALLY
INCORRECT. THE DESC PURCHASE DESCRIPTION, WHICH IS DATED SEPTEMBER 22,
1969, AS INCORPORATED IN THE SUBJECT INVITATION FOR BIDS ISSUED IN
AUGUST 1970, WAS PREPARED PRIOR TO PUBLICATION OF THE REPORT COVERING
THE TESTING CONDUCTED BY THE GSA AUBURN, WASHINGTON, OFFICE (WHICH
TESTING WAS COMPLETED IN JUNE 1970 AND PUBLISHED IN SEPTEMBER 1970).
DESC CITED ONE GSA REPORT AS SUBSTANTIATING THE DESC PURCHASE
DESCRIPTION. AS INDICATED IN OUR DECISION, THE GSA REPORT CONFIRMS
DESC'S POSITION THAT THE TYPE OF PACKAGING MATERIAL CALLED FOR UNDER ITS
PURCHASE DESCRIPTION IS MORE COST EFFECTIVE AND PROVIDES THE NECESSARY
CUSHIONING AND RESISTANCE TO MIGRATION.
YOU MENTION OUR REFERENCE TO "A PRIOR STUDY BY DESC" AS INDICATING
THAT THE LONGER INTERLOCKING POLYSTYRENE STRANDS PROVIDE MORE RESISTANCE
TO MIGRATION AND INVOLVES LESS SHIPPING COSTS. DESC ADVISES THAT THESE
CONCLUSIONS ARE NOT BASED UPON A FORMAL STUDY OR REPORT "PER SE" BUT
RATHER UPON MORE THAN FIVE YEARS OF EXPERIENCE IN THE USE OF DIFFERENT
MATERIALS. IN THIS CONNECTION, DESC STATES THAT IT IS NOT AWARE OF THE
CONTRARY TEST RESULTS BY MANY IN INDUSTRY AND OTHER GOVERNMENT AGENCIES,
BUT THAT IT WILL REVIEW AND CONSIDER ANY INDUSTRY TESTS IDENTIFIED, AS
WELL AS TOBYHANNA'S LATEST REPORT WHEN IT IS RELEASED.
IT IS OUR VIEW THAT YOU HAVE PRESENTED NO NEW INFORMATION WHICH
JUSTIFIES REVERSAL OF OUR PRIOR DECISIONS. THEREFORE, THEY ARE
AFFIRMED.
B-172357, AUG 12, 1971
BID PROTEST - SOLE-SOURCE PROCUREMENT - URGENT REQUIREMENT
DECISION DENYING PROTEST AGAINST THE SOLE-SOURCE PROCUREMENT OF A
CIRCUIT TESTER FROM HUGHES AIRCRAFT COMPANY UNDER AN RFP ISSUED BY
ROBINS AFB.
THE RFP WAS ISSUED PURSUANT TO A DETERMINATION AND FINDINGS WHICH
CITED THE PUBLIC EXIGENCY EXCEPTION IN 10 U.S.C. 2304(A)(2) AND BECAUSE
A COMPLETE DATA PACKAGE COULD NOT HAVE BEEN ASSEMBLED AND FURNISHED
COMPETING CONTRACTORS TO COMPLY WITH THE PROGRAMMING REQUIREMENTS, IT
WAS PROPER TO OBTAIN THE PRODUCT ON A SOLE-SOURCE BASIS.
TO DIT-MCO INTERNATIONAL:
REFERENCE IS MADE TO YOUR LETTERS DATED MARCH 23 AND MAY 5, 1971,
PROTESTING AGAINST A SOLE-SOURCE PROCUREMENT FROM HUGHES AIRCRAFT
COMPANY UNDER REQUEST FOR PROPOSALS F09650-71-R-3703, ISSUED BY THE
DIRECTORATE OF PROCUREMENT AND PRODUCTION, ROBINS AIR FORCE BASE,
GEORGIA, FOR A MOBILE FLEXIBLE AUTOMATIC CIRCUIT TESTER.
YOU STATE THAT AFTER LEARNING OF THE AWARD OF A CONTRACT FOR THE
ABOVE ITEM IN THE COMMERCE BUSINESS DAILY, YOU CONTACTED THE CONTRACTING
OFFICE AND WERE INFORMED THAT THE SOLICITATION HAD BEEN ISSUED ON A
SOLE-SOURCE BASIS TO HUGHES AIRCRAFT. YOU CONTEND THAT THE SOLICITATION
SHOULD HAVE BEEN ISSUED ON A COMPETITIVE BASIS SINCE YOUR COMPANY AS
WELL AS OTHER COMPANIES MANUFACTURE EQUIPMENT OF THE TYPE SOUGHT HERE.
YOU DISAGREE WITH THE EMERGENCY BASIS OF THE SOLE-SOURCE PROCUREMENT,
STATING THAT IF YOU HAD BEEN SUPPLIED WITH THE SAME INFORMATION AS
HUGHES AIRCRAFT YOU COULD HAVE SUBMITTED A BID WITHIN THE SAME TIME
FRAME.
AS INDICATED IN THE CONTRACTING OFFICER'S STATEMENT, THE PURCHASE
REQUEST FOR THE CIRCUIT TESTER WAS INITIATED ON AN "URGENT-WALK-THRU"
BASIS FOR PROCUREMENT AS AN EMERGENCY REQUIREMENT IN SUPPORT OF PRIORITY
REQUIREMENTS FOR THE F-106 AIRCRAFT. THE ITEM IS STATED TO BE REQUIRED
TO PERFORM TESTS ON ELECTRONIC CIRCUITS (9 RELAY UNITS) IN AIR DEFENSE
SYSTEMS USED IN THE F-106 AIRCRAFT.
THE SUBJECT REQUEST FOR PROPOSAL WAS ISSUED ON DECEMBER 31, 1970, AND
WAS SYNOPSIZED IN THE DEPARTMENT OF COMMERCE BUSINESS DAILY. THE SOLE
PROPOSAL SOLICITED WAS OPENED ON JANUARY 20, 1971.
AFTER COST ANALYSIS, AUDIT AND SUBSEQUENT NEGOTIATION, AWARD WAS MAD
TO HUGHES AIRCRAFT COMPANY ON MARCH 12, 1971, CALLING FOR DELIVERY OF
THE ITEM IN 90 DAYS. THE REQUEST FOR PROPOSALS WAS ISSUED PURSUANT TO A
DETERMINATION AND FINDINGS WHICH CITED THE PUBLIC EXIGENCY EXCEPTION IN
10 U.S.C. 2304(A)(2). IT IS REPORTED THAT ALTHOUGH THE REQUIREMENT FOR
THE TESTER WAS ESTABLISHED IN LATE AUGUST 1970, FOUR MONTHS ELAPSED IN
ACCOMPLISHING PRESCRIBED INTERNAL ACTIONS AND CLEARANCE OF FUNDS PRIOR
TO INITIATION OF THE RFP ON DECEMBER 31, 1970. THE FILE ALSO CONTAINS A
SOLE-SOURCE JUSTIFICATION DATED DECEMBER 28, 1970, STATING THAT HUGHES
AIRCRAFT IS THE ONLY KNOWN SOURCE WHICH CAN SATISFY THE PROCUREMENT
REQUIREMENTS OF THE PROPOSAL WITHIN THE PRESCRIBED TIME PERIOD. IN
SUPPORT OF THIS SOLE-SOURCE JUSTIFICATION IT IS REPORTED THAT:
"B. PARAGRAPH 2(A)(1). DATA FOR FOUR (4) OF THE NINE (9) RELAYS TO
BE TESTED ARE NOT AVAILABLE AT WRAMA NOR AT THE AFLC ENGINEERING DATA
DEPOSITORY. A COMPLETE DATA PACKAGE COULD NOT HAVE BEEN FURNISHED TO A
COMPETING CONTRACTOR TO COMPLY WITH THE PROGRAMMING REQUIREMENTS OF THE
RFP STATEMENT OF WORK. ALTHOUGH HUGHES MAINTAINS CURRENT DATA, THE COST
INCIDENT TO ACQUISITION OF DATA IN A FORM SUITABLE FOR AIR FORCE USE IN
A COMPETITIVE PROCUREMENT WOULD OFFSET ANY PRICE REDUCTION ADVANTAGE
GAINED BY COMPETITION. THE DELAY ASSOCIATED WITH ACQUISITION AND
VERIFICATION OF ADEQUACY FOR COMPETITIVE PROCUREMENT OF THIS ONE-TIME
BUY WOULD HAVE SERIOUSLY DELAYED SUPPORT OF AN AIR DEFENSE COMMAND
MAINTENANCE PROJECT (PROJECT CIKR) IN SUPPORT OF THE F-106 AIRCRAFT.
"C. PARAGRAPHS 2(A)(2) AND 5. WRAMA HAS THE HUGHES SPECIFICATION
T550-800 WHICH DESCRIBES THE FACT II TESTER WE ARE BUYING. THIS IS A
GENERAL DESCRIPTION SPECIFICATION. IN ORDER TO PROCURE A TESTER OF THIS
TYPE ON A COMPETITIVE BASIS, WRAMA WOULD HAVE TO OBTAIN TECHNICAL
INFORMATION ON OTHER TESTERS AVAILABLE IN INDUSTRY AND PERFORM A REVIEW
OF THIS INFORMATION TO DETERMINE THE TESTERS THAT MET OUR MINIMUM
REQUIREMENTS. IT THEN WOULD HAVE BEEN NECESSARY TO WRITE A GENERAL
SPECIFICATION AND SOLICIT PROPOSALS FROM ALL QUALIFIED FIRMS.
"D. PARAGRAPHS 3 AND 4. IT WAS NOT DEEMED PRUDENT, IN VIEW OF THE
URGENCY OF THE REQUIREMENT, TO SOLICIT TECHNICAL PROPOSALS FROM CONCERNS
IN THE CIRCUIT TESTER INDUSTRY. THE SELECTION OF THE HUGHES TESTER WAS
BASED IN PART ON THE SATISFACTORY USAGE OF TWO (2) HUGHES TESTERS IN THE
MA-1 SYSTEM AND WAS NOT INTENDED TO IMPLY ANY SUPERIORITY OF OTHER
COMPETITORS' PRODUCTS. ADAPTATION OF THE HUGHES TESTER FOR ADC USAGE
WAS DETERMINED THE MOST PRACTICAL UNDER THE URGENT CONDITION PREVALENT
AT THE TIME OF PROCUREMENT."
THUS, THE ADMINISTRATIVE REPORT STATES, THAT DATA WAS NOT AVAILABLE
ON FOUR OF THE NINE RELAYS TO BE TESTED AT EITHER THE WARNER ROBINS AIR
MATERIEL AREA OR THE AIR FORCE LOGISTICS CENTER; THAT A COMPLETED DATA
PACKAGE COULD NOT HAVE BEEN ASSEMBLED AND FURNISHED COMPETING
CONTRACTORS TO COMPLY WITH THE PROGRAMMING REQUIREMENTS OF THE
PROCUREMENT. IN THIS CONNECTION IT IS REPORTED THAT IN ORDER TO PROCURE
A TESTER OF THIS TYPE ON A COMPETITIVE BASIS, THE WARNER ROBINS AIR
MATERIEL AREA WOULD HAVE HAD TO OBTAIN TECHNICAL INFORMATION ON OTHER
TESTERS AVAILABLE IN INDUSTRY AND PERFORM A REVIEW OF THIS INFORMATION
TO DETERMINE THAT THE TESTERS MET MINIMUM REQUIREMENTS; THAT IT THEN
WOULD HAVE BEEN NECESSARY TO WRITE A GENERAL SPECIFICATION AND SOLICIT
PROPOSALS FROM ALL QUALIFIED FIRMS; AND THAT THE COST AND TIME INCIDENT
TO THIS PROCEDURE WOULD OFFSET ANY PRICE REDUCTION ADVANTAGE GAINED BY
COMPETITION FOR A SINGLE TESTER AT AN APPROXIMATE PRICE OF $118,000.
WE HAVE CAREFULLY REVIEWED YOUR CONTENTIONS AND THE ADMINISTRATIVE
DOCUMENTS AND CANNOT CONCLUDE THAT THE CONTRACTING OFFICER ACTED IN AN
ARBITRARY OR CAPRICIOUS MANNER, OR IN A MANNER, IN VIEW OF THE URGENT
NEED, NOT IN THE BEST INTERESTS OF THE GOVERNMENT.
ACCORDINGLY, WE MUST DENY YOUR PROTEST.
B-172918, AUG 12, 1971
DEPENDENT TRAVEL - REIMBURSEMENT FOR COSTS - USE OF FOREIGN FLAG
AIRLINES
DECISION DENYING THE CLAIM OF RONALD F. STARR FOR REIMBURSEMENT FOR
DEPENDENTS TRAVEL FROM NICE, FRANCE TO DULLES INTERNATIONAL AIRPORT,
VIRGINIA, INCIDENT TO A PERMANENT CHANGE OF STATION.
THE APPLICABLE PARAGRAPHS OF THE JOINT TRAVEL REGULATIONS REQUIRE
THAT THE MEMBER USE EITHER GOVERNMENT SUPPLIED OR AMERICAN FLAG
TRANSPORTATION FOR DEPENDENT TRAVEL WHERE IT IS AVAILABLE. SINCE THE
RECORD INDICATES THAT FOREIGN FLAG TRANSPORTATION WAS USED FOR THE
CONVENIENCE OF THE MEMBER, THERE IS NO BASIS FOR ALLOWING REIMBURSEMENT.
TO RONALD F. STARR, SHC, USN:
FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR REIMBURSEMENT FOR
DEPENDENTS' TRAVEL FROM NICE, FRANCE, TO DULLES INTERNATIONAL AIRPORT,
VIRGINIA, INCIDENT TO YOUR PERMANENT CHANGE OF STATION FROM THURSO,
SCOTLAND, TO INDIAN HEAD, MARYLAND.
BY ORDERS NO. 051-69, UNITED STATES NAVAL RADIO STATION, THURSO,
SCOTLAND, DATED DECEMBER 17, 1969, YOU WERE DIRECTED TO PROCEED ON A
PERMANENT CHANGE OF STATION TO THE NAVAL ORDNANCE STATION, INDIAN HEAD,
MARYLAND 20640, WITH TEMPORARY DUTY EN ROUTE AT THE NAVY RESALE SYSTEMS
OFFICE, BROOKLYN, NEW YORK, AND AT THE NAVY EXCHANGE, NAVAL STATION,
WASHINGTON, D.C. YOU WERE GRANTED A DELAY EN ROUTE OF 30 DAYS TO BE
COUNTED AS LEAVE. YOUR LEAVE ADDRESS WAS RUE DE LA VICTOIRE,
VILLEFRANCHE, S/M 06, FRANCE.
BY FIRST ENDORSEMENT TO YOUR ORDERS OF THE SAME DATE, YOU WERE
GRANTED PERMISSION TO VISIT FRANCE IN A LEAVE STATUS, AND YOU WERE
AUTHORIZED TO PERFORM CIRCUITOUS TRAVEL FROM THURSO, SCOTLAND, TO
FRANCE, PRIOR TO REPORTING TO YOUR PERMANENT DUTY STATION. YOU WERE
ADVISED THAT COMMERCIAL TRANSPORTATION FOR YOU AND YOUR DEPENDENTS WOULD
HAVE BEEN AVAILABLE FROM PRESTWICK, SCOTLAND, TO THE UNITED STATES HAD
YOU NOT ELECTED TO TRAVEL IN A CIRCUITOUS ROUTE. GOVERNMENT
TRANSPORTATION WAS NOT AVAILABLE FROM THURSO TO GLASGOW, SCOTLAND. YOU
WERE FURTHER ADVISED THAT YOU WOULD BEAR THE EXPENSE OF TRAVELING FROM
GLASGOW TO FRANCE AND FROM FRANCE TO THE PORT OF DEBARKATION FOR RETURN
TO THE UNITED STATES. IT WAS STATED THAT THE CIRCUITOUS ROUTE OF TRAVEL
WAS FOR THE CONVENIENCE OF YOU AND YOUR DEPENDENTS AND WAS NOT SUBJECT
TO REIMBURSEMENT.
THE RECORD BEFORE US SHOWS THAT YOUR DEPENDENTS TRAVELED FROM THURSO
TO WICK, SCOTLAND, BY PRIVATELY OWNED VEHICLE, AND FROM THERE VIA
BRITISH EUROPEAN AIRWAYS TO NICE, FRANCE, ON DECEMBER 17, 1969. ON MARCH
31, 1970, THEY DEPARTED VIA AIR FRANCE FROM NICE, ARRIVING THE FOLLOWING
DAY AT DULLES INTERNATIONAL AIRPORT, VIRGINIA, AND FROM THERE THEY
TRAVELED BY PRIVATELY OWNED VEHICLE TO INDIAN HEAD, MARYLAND.
BECAUSE OF DOUBT REGARDING YOUR ENTITLEMENT TO REIMBURSEMENT FOR
DEPENDENT TRAVEL, YOUR CLAIM WAS FORWARDED THROUGH MILITARY CHANNELS AND
WAS RECEIVED IN THIS OFFICE FROM THE NAVY REGIONAL FINANCE CENTER,
WASHINGTON, D.C. 20390, ON JUNE 16, 1970.
BY SETTLEMENT OF DECEMBER 10, 1970, OUR CLAIMS DIVISION ALLOWED YOU
THE AMOUNT OF $46.44 FOR YOUR DEPENDENTS' TRAVEL FROM THURSO TO GLASGOW,
SCOTLAND, AND FROM DULLES INTERNATIONAL AIRPORT TO INDIAN HEAD. NO
REIMBURSEMENT WAS ALLOWED FOR $562 AIRFARE FROM NICE TO DULLES
INTERNATIONAL AIRPORT, AS YOUR DEPENDENTS UTILIZED A FOREIGN COMMERCIAL
CARRIER, AIR FRANCE, FOR THIS TRAVEL.
YOUR RECLAIM FOR THE TRANSATLANTIC TRAVEL, IN THE SUM OF $452, WAS
RECEIVED FROM THE NAVY FINANCE CENTER, WASHINGTON, D.C., ON MARCH 15,
1971, WITH THE RECOMMENDATION OF THE COMMANDING OFFICER, NAVAL ORDNANCE
STATION, INDIAN HEAD, MARYLAND, THAT FAVORABLE CONSIDERATION BE GIVEN TO
YOUR CLAIM FOR REIMBURSEMENT IN THE AMOUNT THE GOVERNMENT WOULD HAVE
PAID IF YOUR DEPENDENTS HAD TRAVELED VIA GOVERNMENT-APPROVED COMMERCIAL
AIRLINE.
IN FORWARDING YOUR CLAIM, THE DISBURSING OFFICER OF THE NAVAL
ORDNANCE STATION, INDIAN HEAD, MARYLAND, STATES THAT CIRCUITOUS TRAVEL
WAS APPROVED BECAUSE DEPENDENT HOUSING WAS NOT AVAILABLE AT YOUR
INTERMEDIATE TEMPORARY DUTY STATIONS, AND THAT AFTER YOU ARRIVED AT YOUR
NEW PERMANENT DUTY STATION AND SECURED HOUSING FOR YOUR FAMILY YOU
RETURNED TO FRANCE TO ACCOMPANY THEM TO THEIR NEW HOME. BECAUSE OF YOUR
DUTIES YOU WERE GRANTED ONLY THREE DAYS' LEAVE FOR THIS PURPOSE (FRIDAY
TO MONDAY).
AS THERE WAS NOT ENOUGH TIME TO TRAVEL TO FRANCE, OBTAIN
TRANSPORTATION REQUESTS AND RETURN WITH YOUR FAMILY TO THE UNITED
STATES, THE DISBURSING OFFICER SAYS THAT WHILE IN FRANCE YOU PURCHASED
TICKETS ON THE FIRST AVAILABLE AIRLINE THAT COULD FLY YOU AND YOUR
FAMILY TO THE UNITED STATES IN TIME SO THAT YOU WOULD NOT BE OVER LEAVE.
ADDITIONALLY, IT IS INDICATED THAT YOU WERE NOT INFORMED OF RESTRICTIONS
IN THE USE OF FOREIGN COMMERCIAL AIR PRIOR TO OBTAINING PASSAGE FOR YOUR
DEPENDENTS FROM FRANCE TO THE UNITED STATES.
PARAGRAPH M7000 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT
TO 37 U.S.C. 406, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE
ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A
PERMANENT CHANGE OF STATION FOR TRAVEL PERFORMED FROM THE OLD STATION TO
THE NEW PERMANENT STATION OR BETWEEN POINTS OTHERWISE AUTHORIZED IN THE
REGULATIONS, EXCEPT FOR ANY PORTION OF TRAVEL PERFORMED BY A FOREIGN
REGISTERED VESSEL OR AIRPLANE, IF AMERICAN REGISTERED VESSELS OR
AIRPLANES ARE AVAILABLE BY THE USUALLY TRAVELED ROUTE. (M7000-7).
PARAGRAPH M2150 OF THE REGULATIONS (CHANGE 181, EFFECTIVE FEBRUARY 1,
1968) PROVIDES THAT EXCEPT WHERE THE AUTHORITY ISSUING TRAVEL ORDERS OR
THE TRANSPORTATION OFFICER OR OTHER APPROPRIATE OFFICER MAY DETERMINE
OTHERWISE, VESSELS AND AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED
STATES WILL BE USED FOR ALL TRAVEL AND TRANSPORTATION OUTSIDE THE
CONTINENTAL UNITED STATES. MERE INCONVENIENCE OR SHORT DELAYS IN
AWAITING TRANSPORTATION BY VESSEL OR AIRCRAFT OF UNITED STATES REGISTRY,
THE DESIRE TO ARRANGE CIRCUITOUS ROUTES FOR THE CONVENIENCE OF A
TRAVELER, OR ANY SIMILAR REASONS, ARE NOT SUFFICIENT TO JUSTIFY USE OF A
FOREIGN CARRIER. (M2150-4).
PARAGRAPH 2000-2, U.S. NAVY TRAVEL INSTRUCTIONS, PROVIDES THAT WHEN
IT IS DETERMINED THAT COMMERCIAL TRANSPORTATION WILL BE PROVIDED FOR
TRAVEL TO, FROM, OR OUTSIDE THE UNITED STATES, AIRCRAFT AND SHIPS
REGISTERED UNDER THE LAWS OF THE UNITED STATES WILL BE USED UNLESS THE
NONAVAILABILITY OF SUCH AIRCRAFT OR SHIPS OR THE EXIGENCIES OF THE
MISSION REQUIRE THE USE OF AIRCRAFT OR SHIPS REGISTERED UNDER A FOREIGN
FLAG.
PARAGRAPH M4159-1 OF THE REGULATIONS PROVIDES, WITH EXCEPTIONS NOT
HERE RELEVANT, THAT A MEMBER TRAVELING UNDER PERMANENT CHANGE-OF-STATION
ORDERS 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 THE TRAVEL ALLOWANCES AS
OTHERWISE PRESCRIBED FOR THE OFFICIAL DISTANCE BETWEEN THE OLD PERMANENT
STATION AND THE APPROPRIATE AERIAL OR WATER PORT OF EMBARKATION SERVING
THE OLD STATION AND BETWEEN THE APPROPRIATE AERIAL OR WATER PORT OF
DEBARKATION SERVING THE NEW STATION AND THE NEW PERMANENT STATION.
ALSO, HE WILL BE ENTITLED TO:
"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) *** "
WITH RESPECT TO REIMBURSEMENT WHEN GOVERNMENT TRANSPORTATION IS
AVAILABLE, PARAGRAPH M4159-4A, IN EFFECT AT THE TIME OF YOUR DEPENDENTS'
TRAVEL, STATES THAT WHEN TRAVEL BY GOVERNMENT TRANSPORTATION IS
AUTHORIZED (AS DISTINGUISHED FROM DIRECTED) AND THE MEMBER PERFORMS
TRANSOCEANIC TRAVEL BY ANOTHER MODE OF TRANSPORTATION AT PERSONAL
EXPENSE (OTHER THAN FOREIGN FLAG), THE MEMBER IS ENTITLED TO
REIMBURSEMENT FOR THE COST OF THE TRANSPORTATION UTILIZED NOT TO EXCEED
THE APPLICABLE TARIFF CHARGE WHICH THE SPONSORING SERVICE WOULD HAVE
BEEN REQUIRED TO PAY FOR THE AVAILABLE GOVERNMENT TRANSPORTATION.
PARAGRAPH M7002-2B INDICATES THAT FOR TRANSOCEANIC TRAVEL OF
DEPENDENTS, THE MEMBER MAY BE REIMBURSED IN THE SAME MANNER AS IS
PROVIDED FOR HIS PERSONAL TRAVEL IN PARAGRAPH M4159-4, WITH EXCEPTIONS
NOT HERE RELEVANT.
IT LONG HAS BEEN THE ESTABLISHED RULE THAT TRAVEL OF MEMBERS OF THE
UNIFORMED SERVICES AND THEIR DEPENDENTS, FOR REIMBURSEMENT PURPOSES, IS
REQUIRED TO BE COMPUTED ON THE BASIS OF THE MOST DIRECT, USUALLY
TRAVELED ROUTE BETWEEN THE POINTS INVOLVED AND ADDITIONAL EXPENSES MAY
NOT BE AUTHORIZED FOR CIRCUITOUS TRAVEL. SEE 47 COMP. GEN. 440 (1968)
AND DECISION B-166200, MARCH 20, 1969, COPIES ENCLOSED.
IN ACCORD WITH PARAGRAPHS M7000-7, M2150 AND M4159-4A OF THE
REGULATIONS, WHERE TRANSPORTATION BY AMERICAN CARRIER IS AVAILABLE ON
THE DIRECT, USUALLY TRAVELED TRANSOCEANIC ROUTE, BUT A FOREIGN CARRIER
IS UTILIZED FOR CIRCUITOUS TRAVEL, WE HAVE DENIED ANY REIMBURSEMENT FOR
TRAVEL BY THE FOREIGN CARRIER. SEE DECISION B-166105, APRIL 8, 1969,
COPY ENCLOSED.
THE ENDORSEMENT TO YOUR TRAVEL ORDERS INDICATES THAT COMMERCIAL
TRANSPORTATION WOULD HAVE BEEN AVAILABLE FOR YOU AND YOUR DEPENDENTS
FROM PRESTWICK, SCOTLAND, TO THE UNITED STATES IF A CIRCUITOUS ROUTE FOR
TRAVEL FROM THURSO, SCOTLAND, TO INDIAN HEAD, MARYLAND, HAD NOT BEEN
UTILIZED.
WE ARE INFORMED THAT ON DECEMBER 17, 1969, THE DATE YOUR DEPENDENTS
COMMENCED THEIR CIRCUITOUS TRAVEL FROM SCOTLAND TO FRANCE AND THEN TO
THE UNITED STATES, AMERICAN COMMERCIAL AIR WAS AVAILABLE FROM PRESTWICK,
SCOTLAND, TO WASHINGTON, D.C., AND THE COST TO THE GOVERNMENT FOR THIS
CATEGORY "Z" TRANSPORTATION WAS $119.20 PER PASSENGER.
AS IT APPEARS THAT AMERICAN FLAG TRANSPORTATION WAS AVAILABLE TO YOUR
DEPENDENTS FOR TRAVEL BY THE DIRECT, USUALLY TRAVELED ROUTE TO YOUR NEW
DUTY STATION IN THE UNITED STATES, BUT, INSTEAD, THEY UTILIZED FOREIGN
COMMERCIAL TRANSPORTATION FROM SCOTLAND TO FRANCE AND FROM FRANCE TO THE
UNITED STATES, NO REIMBURSEMENT MAY BE AUTHORIZED FOR THIS TRANSOCEANIC
TRAVEL WHICH WAS AT YOUR PERSONAL EXPENSE.
IT IS REGRETTABLE THAT BECAUSE OF TIME LIMITATIONS YOU FELT IT
NECESSARY TO PROCURE FOREIGN AIR TRANSPORTATION FOR YOUR DEPENDENTS,
INSTEAD OF UTILIZING GOVERNMENT-PROCURED TRANSPORTATION FROM A PORT OF
EMBARKATION IN FRANCE OR ALTERNATIVELY, OBTAINING TRANSPORTATION AT
PERSONAL EXPENSE ON AN AMERICAN AIR CARRIER. HOWEVER, AS INDICATED IN
YOUR ORDERS, THE CIRCUITOUS TRAVEL WAS FOR YOUR PERSONAL CONVENIENCE AND
IT WAS YOUR RESPONSIBILITY TO MAKE SUCH ARRANGEMENTS FOR THIS TRAVEL AS
WOULD NOT INTERFERE WITH YOUR MILITARY DUTIES.
ANY FAILURE OF GOVERNMENT PERSONNEL TO INFORM YOU THAT REIMBURSEMENT
FOR FOREIGN FLAG TRAVEL COULD NOT BE MADE WHEN TRANSPORTATION BY AN
AMERICAN CARRIER WAS AVAILABLE, DOES NOT, IN OUR OPINION, AFFORD A LEGAL
BASIS FOR REIMBURSEMENT FOR THE TRAVEL IN QUESTION.
UPON REVIEW, WE MUST SUSTAIN OFFICE SETTLEMENT OF DECEMBER 10, 1970,
WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR COMMERCIAL AIR TRAVEL
OF YOUR DEPENDENTS FROM NICE, FRANCE, TO DULLES INTERNATIONAL AIRPORT,
VIRGINIA, INCIDENT TO YOUR PERMANENT CHANGE OF STATION FROM THURSO,
SCOTLAND, TO INDIAN HEAD, MARYLAND.
YOUR ORDERS OF DECEMBER 17, 1969, AND FIRST ENDORSEMENT OF THE SAME
DATE ARE ENCLOSED.
B-172324, AUG 11, 1971
CONTRACTS - TECHNICAL REQUIREMENT - CHANGE IN SOLICITATION
CONCERNING PROTEST, SUBSEQUENTLY WITHDRAWN, OF AMPEX CORPORATION
AGAINST AWARD OF CONTRACT BY UNITED STATES MARINE CORPS TO RADIO
CORPORATION OF AMERICA FOR TWO MOBILE TV PRODUCTION VANS.
ADVISE THAT WHEN TWO PROPOSALS ARE OF EQUAL TECHNICAL EXCELLENCE
PRICE SHOULD BE THE DETERMINING FACTOR IN MAKING AN AWARD AND THAT
WHENEVER THERE IS A MATERIAL DEPARTURE IN THE SOLICITATION BEFORE AWARD,
ALL OFFERORS WITHIN COMPETITIVE RANGE MUST BE AFFORDED EQUAL OPPORTUNITY
TO RESPOND TO THE CHANGES.
TO GENERAL CHAPMAN:
BY LETTER DATED MAY 11, 1971, WITH ENCLOSURES, THE QUARTERMASTER
GENERAL FURNISHED OUR OFFICE AN ADMINISTRATIVE REPORT ON THE PROTEST OF
THE AMPEX CORPORATION AGAINST THE AWARD OF A CONTRACT TO THE RADIO
CORPORATION OF AMERICA UNDER MARINE CORPS REQUEST FOR PROPOSALS
M00027-71-R-0019.
PERTINENT PORTIONS OF THE REPORT WERE MADE AVAILABLE TO AMPEX FOR
COMMENT AND BY LETTER DATED MAY 26, 1971, IT WITHDREW ITS PROTEST. FROM
OUR REVIEW OF THE RECORD, WE MUST CONCLUDE, AS AMPEX DID, THAT ALL
OFFERS WERE IMPARTIALLY EVALUATED DURING THE COURSE OF NEGOTIATIONS AND
THAT THE EVALUATION CRITERIA WERE CONSISTENTLY APPLIED. HOWEVER, UNDER
THE CIRCUMSTANCES OF THIS CASE, WE BELIEVE THAT SOME COMMENT ON THE
EVALUATION CRITERIA USED IN DETERMINING WHICH OFFER WAS MOST
ADVANTAGEOUS TO THE GOVERNMENT IS APPROPRIATE.
THE SOLICITATION AS ISSUED ACCORDED TECHNICAL COMPETENCE A WEIGHT OF
75 PERCENT AND COST A WEIGHT OF 25 PERCENT. THE TWO MOBILE TV
PRODUCTION VANS SOLICITED ON A FIXED-PRICE BASIS REQUIRED ESSENTIALLY
OFF-THE-SHELF EQUIPMENT, ALTHOUGH THE CONTRACTING OFFICER WAS
LEGITIMATELY CONCERNED WITH THE TECHNICAL ABILITY OF THE OFFERORS TO
CONFIGURE THE EQUIPMENT IN THE VANS AND THEIR SELECTION OF COMPONENTS.
NEVERTHELESS, WE WERE INFORMALLY ADVISED BY THE CONTRACTING OFFICER THAT
AFTER TECHNICAL EVALUATION, THE PROPOSALS OF RCA AND AMPEX WERE
CONSIDERED TO BE ESSENTIALLY EQUAL TECHNICALLY. THIS ADVICE WOULD
APPEAR TO BE BORNE OUT BY THE TECHNICAL SCORES RECEIVED. OUT OF A
POSSIBLE TECHNICAL SCORE OF 75 POINTS, RCA RECEIVED THE MAXIMUM AND
AMPEX RECEIVED 74.1. IF, AS IS APPARENTLY THE SITUATION HERE, IT CAN BE
SAID THAT THERE IS, IN THE JUDGMENT OF THE CONTRACTING AGENCY, NO
SUBSTANTIAL BASIS FOR DISTINGUISHING BETWEEN THE TECHNICAL EXCELLENCE OF
TWO PROPOSALS MEETING THE GOVERNMENT'S REQUIREMENTS, WE BELIEVE THAT
PRICE SHOULD THEN BECOME THE CONTROLLING FACTOR. CF. 50 COMP. GEN. ___
(B-169148, OCTOBER 6, 1970). ON THE OTHER HAND, IF THE TECHNICAL
DIFFERENCE BETWEEN A HIGHER RATED PROPOSAL AND A LOWER RATED AND LOWER
PRICED PROPOSAL IS OF SOME SIGNIFICANCE, A SPECIFIC DETERMINATION SHOULD
BE MADE THAT THE TECHNICAL SUPERIORITY OF THE HIGHER PRICED PROPOSAL
WARRANTS THE ADDITIONAL COST INVOLVED IN THE AWARD OF A CONTRACT TO THAT
OFFEROR.
FINALLY, WE MUST REJECT THE QUARTERMASTER GENERAL'S SUGGESTION
ARGUENDO THAT AFTER THE CLOSING DATE FOR NEGOTIATIONS AND BEFORE AWARD
"MATERIAL" CHANGES IN THE SOLICITATION COULD BE DISCUSSED WITH AND
AGREED TO BY RCA TO THE EXCLUSION OF ALL OTHER OFFERORS BECAUSE RCA WAS
THE "OTHERWISE SUCCESSFUL OFFEROR" AFTER BEST AND FINAL OFFERS. IN OUR
OPINION, WHERE THERE IS A MATERIAL DEPARTURE FROM THE SOLICITATION PRIOR
TO AWARD, ALL OFFERORS WITHIN A COMPETITIVE RANGE SHOULD BE AFFORDED AN
EQUITABLE OPPORTUNITY TO RESPOND TO THE CHANGES.
B-172920, AUG 11, 1971
CIVILIAN EMPLOYEES - HOLIDAY PREMIUM PAY - ENTITLEMENT
CONCERNING CLAIMS OF CERTAIN EMPLOYEES OF THE FAA, WHO WORK ON
REGULAR ROTATING SHIFTS AND WHOSE WORK IS DESCRIBED AS "ESSENTIAL TO THE
CONTINUOUS AND SAFE FLOW OF AIR TRAFFIC," FOR HOLIDAY PREMIUM PAY FOR
THE HOLIDAYS OF 1970.
CLAIMANTS CONTEND THAT THEY WERE WRONGFULLY DEPRIVED OF PREMIUM PAY
BY BEING FORCED TO OBSERVE THE LEGAL HOLIDAYS, OR DAYS IN LIEU OF THE
HOLIDAYS, AND SHOULD BE COMPENSATED FOR THIS, REGARDLESS OF THE FACT
THEY DID NOT WORK. NO LAW OR REGULATION EXISTS WHICH WOULD REQUIRE AN
AGENCY TO WORK EMPLOYEES ON A HOLIDAY JUST BECAUSE THEIR WEEKLY SCHEDULE
OF WORK INCLUDED SUCH HOLIDAYS; THEREFORE, THE CLAIMS ARE DENIED.
TO MR. WILLIAM F. CARR,:
THIS WILL REFER TO YOUR LETTER OF MAY 6, 1971, ON BEHALF OF FIVE
EMPLOYEES OF THE FEDERAL AVIATION ADMINISTRATION WHOSE WORK IS DESCRIBED
AS BEING "ESSENTIAL TO THE CONTINUOUS AND SAFE FLOW OF AIR TRAFFIC." YOU
SAY THEY WORK ON A REGULARLY SCHEDULED ROTATING SHIFT, POSTED 15 TO 30
DAYS IN ADVANCE, UNDER CONDITIONS REQUIRING CONTINUOUS YEAR-ROUND
COVERAGE OF THEIR DUTIES.
THE CLAIMS PRESENTED BY YOUR LETTER ARE ESSENTIALLY FOR HOLIDAY
PREMIUM PAY ALLOWABLE UNDER SECTION 5546 OF TITLE 5, UNITED STATES CODE,
FOR LEGAL HOLIDAYS OCCURRING DURING 1970 ON WHICH THE EMPLOYEES IN
QUESTION PERFORMED NO WORK. APPARENTLY, CONTRARY TO THEIR PREFERENCE IN
THE MATTER, ADMINISTRATIVE ORDERS WERE GIVEN BY THE FLIGHT SERVICE
STATION, SPRINGFIELD, MISSOURI, THAT THE EMPLOYEES OBSERVE CERTAIN
HOLIDAYS OR DAYS IN LIEU OF HOLIDAYS DESIGNATED AS SUCH ACCORDING TO THE
CIRCUMSTANCES OF THEIR WORK SCHEDULES. IT IS THEIR VIEW THAT THE
REQUIREMENT THAT THE HOLIDAYS BE OBSERVED RATHER THAN WORKED RESULTED IN
AN ILLEGAL DEPRIVATION OF THEIR ENTITLEMENT TO PREMIUM PAY.
WE ARE NOT AWARE OF ANY LAW OR REGULATION WHICH WOULD REQUIRE AN
AGENCY TO WORK EMPLOYEES ON A HOLIDAY WHEN THEIR WEEKLY SCHEDULES OF
WORK INCLUDE SUCH A HOLIDAY. COMPARE THE PROVISIONS OF 5 U.S.C. 6101
PERTAINING TO FIXING THE HOURS OF WORK OF EMPLOYEES OTHERWISE SUBJECT
THERETO.
IT WOULD APPEAR THAT THE PURPOSE OF ESTABLISHING HOLIDAYS SUCH AS SET
FORTH IN 5 U.S.C. 6103 IS TO GIVE EMPLOYEES THE BENEFIT OF TIME OFF ON
SUCH DAYS WITHOUT LOSS OF REGULAR COMPENSATION AND NOT TO ESTABLISH AN
ADDITIONAL FORM OF COMPENSATION REPRESENTED BY PREMIUM PAY FOR HOLIDAYS
WORKED. SEE STATEMENTS ON PAGE 2, HOUSE REPORT NO. 362 ON H. R. 5752,
86TH CONGRESS, AND PAGE 1, SENATE REPORT NO. 830 ON THE SAME BILL, WHICH
WAS ENACTED AS PUBLIC LAW 362, 86TH CONGRESS, SEPTEMBER 22, 1959, AND
ESTABLISHED THE OBSERVANCE ON FRIDAY OF HOLIDAYS FALLING ON SATURDAY AND
IN-LIEU HOLIDAYS FOR EMPLOYEES HAVING TOURS OF DUTY OTHER THAN MONDAY
THROUGH FRIDAY. ALSO, SEE PAGE 2, HOUSE REPORT NO. 1280, 90TH CONGRESS,
ON H. R. 15951 AND PAGES 1 AND 2, SENATE REPORT NO. 1293 ON THE SAME
BILL, WHICH WAS ENACTED AS PUBLIC LAW 90-363, JUNE 28, 1968, AND
ESTABLISHED AN ADDITIONAL HOLIDAY (COLUMBUS DAY) AND PROVIDED THAT FIVE
OUT OF THE NINE LEGAL HOLIDAYS WILL BE CELEBRATED ON MONDAY.
IN VIEW OF THE ABOVE, WE FIND NO BASIS FOR APPROVING THE CLAIMS YOU
HAVE PRESENTED.
B-173080, AUG 11, 1971
KOREAN COURTS - TRIAL OF U.S. CITIZENS
DECISION DENYING THE REQUEST OF ROBERT D. ABERCROMBIE THAT GAO TAKE
ACTION REGARDING THE TRIAL OF HIS SON IN THE COURTS OF THE REPUBLIC OF
KOREA ON A CHARGE OF MURDER.
THE MATTERS THAT MR. ABERCROMBIE WISHES THE COMP. GEN. TO LOOK INTO
INVOLVE GENERALLY EITHER CRIMINAL OR JUDICIAL ACTIONS AND, THUS, DO NOT
COME WITHIN THE JURISDICTION OF GAO.
TO MR. ROBERT D. ABERCROMBIE:
REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1971, ASKING THAT WE
REOPEN OUR INVESTIGATION RELATING TO THE TRIAL OF YOUR SON IN THE KOREAN
COURTS.
THIS MATTER PREVIOUSLY WAS CONSIDERED IN OUR LETTER OF JUNE 3, 1971,
B-173080, TO SENATOR THOMAS J. MCINTYRE, WHO FURNISHED YOU A COPY
THEREOF. FOR THE REASONS SET FORTH IN THAT LETTER WE CONCLUDED THAT
THERE EXISTED NO LEGAL BASIS ON WHICH WE MIGHT TAKE ACTION TO RECOVER
THE FEES PAID THE TWO KOREAN ATTORNEYS WHO REPRESENTED YOUR SON.
AS INDICATED ABOVE YOU HAVE NOW REQUESTED THAT WE INVESTIGATE OTHER
ASPECTS OF THIS CASE SUCH AS THE FAILURE OF THE ARMY TO DISMISS THE
DEFENSE ATTORNEY WHO REPRESENTED YOUR SON IN THE LOWER COURT, THE
EMBEZZLEMENT OF $100 FROM YOU BY THAT ATTORNEY (MR. KIM, CHUNG KON), THE
THEFT OF YOUR SON'S MAIL, THE ALTERATION AND SUPPRESSION OF EVIDENCE,
THE MALFEASANCE OF THE KOREAN MINISTER OF JUSTICE, THE INTERPRETATION OF
KOREAN LAW AND OTHER MATTERS PERTAINING TO KOREAN COURT AND CRIMINAL
PROCEDURES.
INSOFAR AS THE FAILURE OF THE ARMY TO DISMISS MR. KIM, CHUNG KON AS
DEFENSE ATTORNEY IS CONCERNED, THE RECORD BEFORE US DISCLOSES THAT WHILE
THE ABOVE-NAMED ATTORNEY MAY HAVE BEEN THE DEFENSE COUNSEL IN THE LOWER
KOREAN COURT (SEOUL HIGH COURT), A MR. KIRK, MYUNG DUK WAS DEFENSE
COUNSEL IN THE APPEAL BEFORE THE KOREAN SUPREME COURT. THE RECORD
BEFORE US DOES NOT DISCLOSE THE REASON FOR THE CHANGE IN DEFENSE
COUNSELS.
AS TO THE OTHER ISSUES YOU RAISE, THESE INVOLVE GENERALLY CRIMINAL OR
JUDICIAL ACTIONS AND THUS DO NOT COME WITHIN THE JURISDICTION OF THE
GENERAL ACCOUNTING OFFICE. CONSEQUENTLY, AND WHILE WE CAN UNDERSTAND
YOUR CONCERN FOR YOUR SON, IT APPEARS THERE IS NO FURTHER ACTION THAT WE
PROPERLY MIGHT TAKE ON YOUR REQUEST.
THE MATTERS INVOLVED IN YOUR LETTER ARE MORE PROPERLY FOR
CONSIDERATION BY THE DEPARTMENT OF DEFENSE AND/OR THE DEPARTMENT OF
STATE. IN THIS REGARD (AS YOU ARE AWARE), A COPY OF A LETTER DATED MAY
25, 1971, FROM THE CHIEF, INTERNATIONAL AFFAIRS DIVISION, OFFICE OF THE
JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE ARMY, TO THE HONORABLE JOHN V.
TUNNEY, UNITED STATES SENATE, DISCLOSES THAT YOUR AFFIDAVIT AND RELATED
MATERIALS HAVE BEEN FORWARDED TO HEADQUARTERS, EIGHTH ARMY, FOR
CONSIDERATION.
B-173175, AUG 11, 1971
BID PROTEST - CURRENT MARKET APPRAISAL - CANCELLATION OF SOLICITATION -
LATE BID USED FOR PRICE COMPARISON
DENIAL OF PROTEST BY THE NICOLAI JOFFE CORPORATION AGAINST THE
REJECTION OF ALL BIDS UNDER AN IFB ISSUED FOR THE DISPOSITION OF THE SAN
JACINTO, AN AUXILIARY AIRCRAFT TRANSPORT, BY THE DEFENSE SURPLUS SALES
OFFICE. THE CONTRACTING OFFICER REJECTED THE BIDS BECAUSE ALL WERE
BELOW THE CURRENT MARKET APPRAISAL (CMA) VALUE OF THE SHIP, AND BECAUSE
OF A HIGHER BID RECEIVED FROM NATIONAL METAL AND STEEL CORPORATION WHICH
WAS PHONED IN LATE BY THE TELEGRAPH COMPANY.
DOD 4160.21-M GOVERNS THE ESTABLISHMENT AND USE OF CMA'S AND REQUIRES
THAT THEY BE USED IN CONJUNCTION WITH THE OTHER LISTED FACTORS,
INCLUDING SOUND PERSONAL JUDGEMENT, WHEN CONSIDERING THE BIDS FOR AWARD.
FURTHER, WHILE THE CONTRACTING OFFICER MAY NOT CONSIDER A LATE BID FOR
AWARD PURPOSES, THERE IS NO REGULATION WHICH PROHIBITS ITS USE FOR PRICE
COMPARISON PURPOSES AS WAS DONE HERE. CONSEQUENTLY, THE COMP. GEN.
FINDS THAT THE CANCELLATION OF THE SOLICITATION WAS A REASONABLE
EXERCISE OF THE ADMINISTRATIVE DISCRETION.
TO NICOLAI JOFFE CORPORATION:
REFERENCE IS MADE TO YOUR LETTERS DATED JUNE 4, 1971, JUNE 7, 1971,
JULY 16, 1971, AND OTHER CORRESPONDENCE, PROTESTING THE REJECTION OF ALL
BIDS BY THE CONTRACTING OFFICER UNDER INVITATION FOR BIDS NO. 16-1119,
ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, NEWPORT, RHODE ISLAND.
THE INVITATION SOLICITED BIDS ON TWO COMBATANT TYPE VESSELS WHICH
WERE BEING DISPOSED OF UNDER THE PROVISIONS OF 10 U.S.C. 7305, AND
EXECUTIVE ORDER 10885, AUGUST 31, 1960. WE ARE CONCERNED HERE ONLY WITH
THE DISPOSITION OF ITEM NO. 1 OF THE SALE, AN AUXILIARY AIRCRAFT
TRANSPORT - THE SAN JACINTO. THREE BIDS ON THIS ITEM WERE RECEIVED AND
OPENED ON MAY 26, 1971, WITH YOUR FIRM SUBMITTING THE HIGHEST BID -
$233,546.00. THE OTHER BIDS WERE $210,100.00 AND $163,899.99,
RESPECTIVELY. A CURRENT MARKET APPRAISAL (CMA) OF $250,000.00 HAD BEEN
ESTABLISHED FOR THE SAN JACINTO PRIOR TO THE SOLICITATION OF BIDS.
IT IS REPORTED THAT PRIOR TO BID OPENING A TELEGRAM FROM NATIONAL
METAL AND STEEL CORPORATION (NATIONAL) WAS TELEPHONED TO THE SALES
OFFICE BY THE TELEGRAPH COMPANY REQUESTING THAT NATIONAL'S BID BE
REDUCED TO $266,783.00. HOWEVER, THE ACTUAL TELEGRAM AND THE ORIGINAL
BID FROM NATIONAL WERE NOT RECEIVED UNTIL AFTER THE BID OPENING, AND IT
WAS DETERMINED THAT THE LATE BID COULD NOT BE CONSIDERED. (THE BID WAS
RECEIVED ON MAY 27 AND THE TELEGRAM WAS RECEIVED MAY 28, 1971.) IT IS
FURTHER REPORTED THAT ON MAY 27, 1971, A REVIEW BOARD CONVENED TO
DISCUSS THE FACTORS INVOLVED AND UPON CONCLUSION OF THE MEETING THE
CONTRACTING OFFICER DETERMINED THAT ALL BIDS SHOULD BE REJECTED AND THE
VESSEL REOFFERED FOR SALE. HIGHER AUTHORITY CONCURRED IN THIS DECISION.
THE DECISION WAS PREMISED ON THE CONCLUSION THAT THE HIGHEST OFFER OF
$233,546.00 DID NOT REPRESENT A FAIR RETURN TO THE GOVERNMENT, AS
INDICATED BY THE CMA OF $250,000.00 AND AS CORROBORATED BY THE
TELEGRAPHIC NOTIFICATION PRIOR TO BID OPENING OF AN INTENDED BID OF
$266,783.00.
YOU PROTEST THE REJECTION OF YOUR BID AS VIOLATIVE OF APPLICABLE
REGULATIONS; THAT THE REJECTION OF ALL BIDS AND THE REOFFER OF THE SHIP
IS PREDICATED ON USE OF IMPROPERLY OBTAINED INFORMATION; AND THAT YOUR
OFFER IS EMINENTLY FAIR AND REASONABLE AND NOT INIMICAL TO THE BEST
INTERESTS OF THE GOVERNMENT. IN SUPPORT OF YOUR POSITION YOU STATE THAT
ON MAY 15, 1971, SALE WAS MADE OF THE SHIP MONTEREY - A SISTER SHIP TO
THE SAN JACINTO - TO THE HIGH BIDDER FOR $226,666.67; THAT YOUR BID FOR
THE SAN JACINTO EXCEEDED THAT SALE PRICE ALTHOUGH THE CURRENT MARKET FOR
SCRAP METAL HAD BECOME DEPRESSED. YOU CONTEND THAT THE ADMINISTRATIVE
REPORT INDICATING THAT THE SAN JACINTO WAS MORE VALUABLE THAN THE
MONTEREY BECAUSE OF THE PRESENCE OF ADDITIONAL EQUIPMENT AND OIL, IS
MISLEADING SINCE ITS VALUE AS SCRAP "COULD ADD ONLY BETWEEN $5,000.00 TO
$6,000.00 TO THE PRICE OF THE MONTEREY *** ;" AND THAT YOUR BID FOR THE
SAN JACINTO EXCEEDED THESE LATTER FIGURES.
YOU STATE THAT ASSUMING ARGUENDO THAT THE GOVERNMENT'S APPRAISAL WAS
APPROPRIATE, THE DIFFERENCE BETWEEN THAT OFFERED BY JOFFE AND THAT
"HOPED FOR" BY THE GOVERNMENT WAS NOT SUFFICIENT - ONLY 6-1/2 PERCENT -
FOR THE GOVERNMENT TO REJECT THE JOFFE BID.
AS TO THE GOVERNMENT'S CONSIDERATION OF THE NATIONAL METAL AND STEEL
CORPORATION TELEGRAM, YOU STATE THAT THIS WAS IN VIOLATION OF ASPR
2-304(A), WHICH PROVIDES THAT NO INFORMATION CONTAINED THEREIN SHALL BE
DISCLOSED PRIOR TO THE TIME SET FOR BID OPENING. YOU CONTEND THAT THE
TELEGRAPHIC INFORMATION SHOULD NOT HAVE BEEN DIVULGED TO THE CONTRACTING
OFFICER AND HE SHOULD NOT HAVE LOOKED TO THE LATE TELEGRAM BID FOR
SUBSTANTIATION OF THE VALUE SET BY THE AGENCY FOR THE VESSEL IN
QUESTION. IN THIS REGARD, YOU CITE 47 COMP. GEN. 401 (1968), WHICH
STATES AT PAGE 404 AS FOLLOWS:
"SINCE YOU HAD SUBMITTED A NONRESPONSIVE BID YOUR RELATIVELY HIGH BID
PRICE WAS NOT FOR EVALUATION OR COMPARISON. *** IT IS WELL ESTABLISHED
THAT IN THE SALE OF SURPLUS PERSONAL PROPERTY, THE FAIR MARKET VALUE OF
A COMMODITY IS ESTABLISHED THROUGH THE COMPETITIVE BIDDING SYSTEM."
WE NOTE THAT UNDER PARAGRAPH 3, "GENERAL SALE TERMS AND CONDITIONS -
COMBATANT VESSELS," DLSC FORM 716, WHICH IS A PART OF THE SOLICITATION,
BIDDERS WERE ADVISED THAT THE GOVERNMENT RESERVED THE RIGHT TO REJECT
ALL BIDS. WHILE WE HAVE HELD IN OUR DECISIONS THAT THIS RIGHT SHOULD BE
EXERCISED ONLY FOR A COGENT OR COMPELLING REASON, ONE OF THE RECOGNIZED
REASONS FOR REJECTING ALL BIDS IS THE LACK OF A REASONABLE PRICE UPON
WHICH TO MAKE THE AWARD. SEE 43 COMP. GEN. 15 (1963); 49 COMP. GEN.
244, 249 (1969).
OBVIOUSLY THE DETERMINATION OF WHAT CONSTITUTES A REASONABLE PRICE IS
A MATTER OF JUDGMENT. WHEN IN THE LIGHT OF ALL THE FACTS, INCLUDING
THOSE DISCLOSED BY THE BIDDING, IT IS ADMINISTRATIVELY DETERMINED THAT
THE ACCEPTABLE BID IS LESS THAN (IN THE CASE OF A SALE) THE AMOUNT WHICH
THE GOVERNMENT SHOULD BE ABLE TO SELL THE ITEM IN QUESTION, WE BELIEVE
THE REJECTION OF ALL BIDS AND READVERTISEMENT OF THE CONTRACT IS A
PROPER EXERCISE OF THE ADMINISTRATIVE DISCRETION.
AS STATED, THE SAN JACINTO HAD AN ESTABLISHED CMA OF $250,000.00. IN
THIS CONNECTION, IT IS REPORTED THAT A CURRENT MARKET APPRAISAL (CMA) IS
REQUIRED TO BE ESTABLISHED FOR EACH ITEM OFFERED FOR SALE BY A DEFENSE
SURPLUS SALES OFFICE. THE PROVISIONS OF DOD 4160.21-M GOVERNING THE
ESTABLISHMENT AND USE OF CMA'S STATE THAT THESE APPRAISALS ARE TO BE
DEVELOPED FROM INFORMATION AVAILABLE FROM THE SALES OFFICE STATISTICS
BASED ON PAST SALES EXPERIENCE; CURRENT MARKET PRICES AND TRENDS;
DEGREE OF MARKET SATURATION; AND VALUE OF BASIC MATERIAL CONTENT.
A "MEMORANDUM FOR THE RECORD" DATED JUNE 10, 1971, PREPARED BY THE
CHIEF, DEFENSE SURPLUS SALES OFFICE, REGARDING THE ESTABLISHMENT OF A
CMA PER THE SAN JACINTO REPORTS AS FOLLOWS:
"2. IN THE CASE OF THE SAN JACINTO, THE FACT THAT ITS LOCATION WAS
SAN DIEGO, THE ADDITIONAL ELEVEN 40 MM GUN MOUNTS, 26 GUN BARRELS, AND
NINE GUN DIRECTORS, AND 200,000 GALLONS OF OIL REMAINING ABOARD WERE
TAKEN INTO CONSIDERATION. THE CMA WAS THEN ESTABLISHED AT $250,000. IT
WAS APPROVED BY THE MERCHANDISING DIVISION CHIEF AND THE DSSO CHIEF."
DSA ACKNOWLEDGES, HOWEVER, THAT A CMA IS NOT AN UPSET PRICE OR A
MINIMUM PRICE BELOW WHICH BIDS WILL NOT BE ACCEPTED, BUT IS CONSIDERED
ALONG WITH OTHER FACTORS WHICH BECOME KNOWN AFTER BID OPENING TO
DETERMINE WHETHER AN AWARD SHOULD BE MADE ON THE BASIS OF THE HIGH BID
OR WHETHER THE GOVERNMENT SHOULD EXERCISE ITS RIGHT TO REJECT ALL BIDS.
IN THIS REGARD, DOD 4160.21-M STATES THAT CONTRACTING OFFICERS WILL USE
CMA'S IN CONJUNCTION WITH SOUND PERSONAL JUDGMENT AT THE TIME BIDS ARE
CONSIDERED FOR CONTRACT AWARDS; AND THAT THEY SHOULD ALSO GIVE
CONSIDERATION TO SUCH ASPECTS AS THE NUMBER OF BIDS RECEIVED, RANGE OF
BIDS, GEOGRAPHICAL AREAS FROM WHICH BIDS ARE RECEIVED, MARKET TRENDS AT
THE TIME OF BID OPENING AND SO ON.
IN DECIDING TO REJECT ALL BIDS IN THIS CASE, THE CONTRACTING OFFICER
GAVE CONSIDERATION TO A SO-CALLED "INTENDED BID" WHICH WAS RECEIVED TOO
LATE TO BE CONSIDERED FOR THE AWARD. WE CANNOT AGREE WITH YOUR
CONTENTION THAT THE CONTRACTING OFFICER VIOLATED THE LATE BID
REGULATIONS WHEN HE GAVE CONSIDERATION TO THIS LATE BID FOR THE PURPOSE
OF DETERMINING WHETHER YOUR TIMELY BID REPRESENTED A FAIR RETURN TO THE
GOVERNMENT.
THE LATE BID REGULATIONS ARE DESIGNED TO GOVERN THE RESPONSIVENESS OF
LATE BIDS FOR AWARD CONSIDERATION. THE REGULATIONS PROVIDE THAT LATE
BIDS WHICH ARE NOT CONSIDERED FOR AWARD SHALL BE RETURNED TO THE BIDDERS
UNOPENED. ASPR 2-403.7. ALSO, IT IS PROVIDED THAT BID INFORMATION
RECEIVED BY THE BID OFFICE IN THE FORM OF A TELEPHONE CALL FROM A
TELEGRAPH COMPANY SHOULD BE SAFEGUARDED AND NOT DISCLOSED BEFORE BID
OPENING. ASPR 2-304(A). THERE IS NO INDICATION THAT THE NATIONAL BID
WAS HANDLED CONTRARY TO THESE REGULATIONS.
BUT, WE DO NOT FIND ANY REGULATION WHICH PRECLUDES THE USE OF SUCH
TELEPHONED INFORMATION AFTER BID OPENING FOR THE PURPOSE OF MAKING A
PRICE COMPARISON. WE CANNOT CONCLUDE THAT SUCH INFORMATION SHOULD NOT
BE CONSIDERED BY THE CONTRACTING OFFICER IN A PRICE COMPARISON, ALTHOUGH
WE BELIEVE THAT THE FAIR MARKET VALUE OF AN ITEM IS BEST ESTABLISHED
THROUGH THE COMPETITIVE BIDDING SYSTEM AND NOT BY THE USE OF INFORMATION
OF A SPECULATIVE NATURE.
IN VIEW OF THE CIRCUMSTANCES AND CONSIDERING THAT SALES CONTRACTING
OFFICERS ARE CLOTHED WITH BROAD POWERS OF DISCRETION IN DECIDING WHETHER
OR NOT THE HIGH BID RECEIVED UNDER AN INVITATION REPRESENTS A FAIR
RETURN TO THE GOVERNMENT, WE FIND THAT CANCELLATION OF THE INVITATION
WAS A REASONABLE EXERCISE OF THE ADMINISTRATIVE DISCRETION. WE MUST
DENY YOUR PROTEST.
B-160808, AUG 10, 1971
MILITARY PERSONNEL - ACTIVE DUTY PAY AND ALLOWANCES - COURT OF CLAIMS
DIVISION
DECISION CONCERNING CLAIMS BY CAPTAINS RICHARD W. RICKER AND OSWALD
B. SALYER, CHAPLAIN CORPS, USN, INCIDENT TO THE CORRECTION OF THEIR
NAVAL RECORDS BY THE BOARD FOR CORRECTION OF NAVAL RECORDS.
PAYMENT OF THE SUBJECT CLAIMS MAY NOT BE AUTHORIZED UNTIL SUCH TIME
THERE IS FURNISHED THE CLAIMS DIVISION OF GAO ACCEPTABLE EVIDENCE OF
INFORMATION SHOWING THE AMOUNT EACH OFFICER EARNED FROM CIVILIAN
EMPLOYMENT DURING THE PERIOD COVERED BY THE DECISION BY THE COURT OF
CLAIMS INCIDENT TO THEIR DECISION OF JULY 7, 1969, 118 CT. CLS. 1169.
THE RECORD CORRECTION EFFECTED PURSUANT TO THAT DECISION ENTITLED THEM
TO ACTIVE DUTY PAY AND ALLOWANCES OFFSET BY INTERIM CIVILIAN EARNINGS AS
SET OUT IN B-160808, APRIL 2, 1970.
TO PENROSE LUCAS ALBRIGHT, ESQUIRE:
WE AGAIN REFER TO YOUR LETTER OF MARCH 3, 1971, AND ENCLOSURES,
WRITTEN ON BEHALF OF CAPTAINS RICHARD W. RICKER AND OSWALD B. SALYER,
CHAPLAIN CORPS, UNITED STATES NAVY, AND PERTAINING TO THEIR CLAIMS FOR
ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIODS JULY 1, 1965, TO OCTOBER
12, 1970, AND JULY 1, 1965, TO OCTOBER 14, 1970, RESPECTIVELY, INCIDENT
TO THE CORRECTION OF THEIR NAVAL RECORDS BY THE BOARD FOR CORRECTION OF
NAVAL RECORDS.
THE OFFICERS WERE ORIGINALLY RETIRED EFFECTIVE JULY 1, 1965, PURSUANT
TO ACTION BY A NAVY CONTINUATION BOARD WHICH THE COURT OF CLAIMS IN A
DECISION OF JUNE 14, 1968, HELD HAD BEEN ILLEGALLY CONSTITUTED. BASED
ON A STIPULATION OF THE PARTIES, JUDGMENT WAS ENTERED BY THE COURT ON
JULY 7, 1969 (118 CT. CL. 1169), IN THE AMOUNTS OF $1,000 FOR CAPTAIN
RICKER AND $5,000 FOR CAPTAIN SALYER, FOR THE ACTIVE DUTY PAY AND
ALLOWANCES DUE EACH OFFICER FOR THE PERIOD JULY 1, 1965, TO JUNE 14,
1968, AND THE OFFICERS HAVE BEEN PAID THOSE AMOUNTS. IN ARRIVING AT
THOSE AMOUNTS, THE COURT APPARENTLY TOOK INTO CONSIDERATION THE AMOUNT
OF EACH OFFICER'S CIVILIAN EARNINGS DURING THE PERIOD INVOLVED.
ON SEPTEMBER 8, 1969, THE BOARD FOR CORRECTION OF NAVAL RECORDS
DIRECTED THAT THE OFFICERS' NAVAL RECORDS BE CORRECTED TO SHOW THAT THEY
WERE NOT RETIRED ON JULY 1, 1965, BUT WERE CONTINUED ON ACTIVE DUTY
UNTIL JULY 31, 1969, AND RETIRED ON AUGUST 1, 1969, WITH THE GRADE OF
CAPTAIN PURSUANT TO 10 U.S.C. 6323. THE BOARD ALSO RECOMMENDED THAT THE
DEPARTMENT OF THE NAVY PAY TO EACH OFFICER OR OTHER PARTY OR PARTIES ALL
MONIES LAWFULLY FOUND TO BE DUE FROM JUNE 15, 1968, TO JULY 31, 1969
(INCLUDING PAYMENT FOR ANNUAL LEAVE ACCRUED FOR SUCH PERIOD), LESS
RETIRED PAY RECEIVED BY THEM FOR SUCH PERIOD. THE DECISION AND
RECOMMENDATION WERE APPROVED BY THE ASSISTANT SECRETARY OF THE NAVY ON
SEPTEMBER 17, 1969.
THE QUESTION WHETHER OFFSET OF INTERIM CIVILIAN EARNINGS WAS REQUIRED
FROM THE AMOUNT OF ACTIVE DUTY PAY AND ALLOWANCES DUE THE OFFICERS FOR
THE PERIOD JUNE 15, 1968, TO JULY 31, 1969, INCIDENT TO THE CORRECTION
OF THEIR NAVAL RECORDS WAS PRESENTED TO THIS OFFICE FOR DECISION. IN
DECISION OF APRIL 2, 1970, B-160808, 49 COMP. GEN. 656, WE CONCLUDED,
AFTER A CAREFUL REVIEW OF THE LAW, THE DEPARTMENTAL REGULATIONS, OUR
DECISIONS AND DECISIONS OF THE COURT OF CLAIMS, THAT WE COULD NOT
AUTHORIZE PAYMENT OF THE AMOUNTS DUE WITHOUT THE OFFSET OF CIVILIAN
EARNINGS.
THE BOARD FOR CORRECTION OF NAVAL RECORDS ON JULY 20, 1970, DIRECTED
THAT THE NAVAL RECORDS OF THE OFFICERS BE CORRECTED BY CANCELLING ITS
ACTION OF SEPTEMBER 8, 1969, WHICH WAS APPROVED BY THE ASSISTANT
SECRETARY OF THE NAVY ON SEPTEMBER 17, 1969. THE BOARD'S ACTION WAS
APPROVED BY THE ASSISTANT SECRETARY OF THE NAVY ON JULY 21, 1970. THE
CHIEF OF NAVAL PERSONNEL ON AUGUST 21, 1970, CORRECTED THE OFFICERS'
RECORDS TO SHOW THAT THE RETIREMENT ORDERS OF MARCH 1, 1965, WHICH
RETIRED THEM AS OF JULY 1, 1965, WERE REVOKED AND NOTIFIED THEM
ACCORDINGLY. ALSO ON THE SAME DATE ORDERS WERE ISSUED TO THE OFFICERS
DIRECTING THEM TO PROCEED AND REPORT TO DUTY ON OR BEFORE OCTOBER 15,
1970 - CAPTAIN RICKER TO NAVAL AIR STATION, PATUXENT RIVER, MARYLAND,
AND CAPTAIN SALYER TO FLEET MARINE FORCE, PACIFIC, TWENTYNINE PALMS,
CALIFORNIA. THE RECORD SHOWS THAT THE OFFICERS REPORTED FOR DUTY AS
DIRECTED.
THE NAVY FINANCE CENTER DECLINED TO EFFECT SETTLEMENT OF THE
OFFICERS' CLAIMS FOR ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD JULY
1, 1965, UNTIL THEY REPORTED FOR ACTIVE DUTY PURSUANT TO THE ORDERS OF
AUGUST 21, 1970, UNTIL A REPORT OF THE CIVILIAN EARNINGS WAS FURNISHED
AND TRANSMITTED THE CLAIMS TO OUR CLAIMS DIVISION FOR DIRECT SETTLEMENT.
YOUR LETTER OF MARCH 3, 1971, TO OUR CLAIMS DIVISION, CONCERNING
THESE CLAIMS, CONTAINS THE FOLLOWING STATEMENT:
"IF THERE IS ANY STATUTORY OR REGULATORY BASIS FOR YOU TO DEDUCT
CIVILIAN EARNINGS FROM ACTIVE DUTY PAY, PLEASE ADVISE ME OF SAME AND
FURNISH ME WITH A CITATION AND, IF NOT PUBLISHED IN THE UNITED STATES
CODE OR IN THE CODE OF FEDERAL REGULATIONS, WITH A COPY."
ALSO, YOU INVITE OUR ATTENTION TO THE FACT THAT CAPTAIN RICKER HAD
NOT BEEN PAID A DISLOCATION ALLOWANCE BASED ON HIS ORDERS DIRECTING HIM
TO REPORT FOR DUTY AT THE NAVAL AIR STATION, PATUXENT RIVER.
UNDER THE ABOVE-MENTIONED COURT'S JUDGMENT, BASED ON A STIPULATION
BETWEEN THE PARTIES, THE OFFICERS BECAME ENTITLED TO AND RECEIVED MONEY
JUDGMENTS IN THE SPECIFIED AMOUNTS, THAT IS $1,000 (RICKER) AND $5,000
(SALYER). IN OUR OPINION, THEREFORE, NO FURTHER ENTITLEMENT TO PAY AND
ALLOWANCES FOR THE PERIOD PRIOR TO JUNE 15, 1968, EXISTS SINCE THE BAR
OF RES JUDICATA APPLIES TO THIS PERIOD. SEE 47 COMP. GEN. 573 (1968)
AND B-156476, DATED MARCH 13, 1969, COPY ENCLOSED.
THE EFFECT OF THE RECORDS CORRECTION ACTIONS IN THE CASES OF THESE
OFFICERS WAS TO CONTINUE THEM IN AN ACTIVE DUTY STATUS WITH ENTITLEMENT
TO ACTIVE DUTY PAY AND ALLOWANCES LESS APPROPRIATE OFFSETS. FOR THE
REASONS SET OUT IN THE DECISION OF APRIL 2, 1970, IT IS OUR VIEW THAT
APPROPRIATE OFFSETS INCLUDE INTERIM CIVILIAN EARNINGS.
WITH REGARD TO THE STATEMENT IN YOUR LETTER OF MARCH 3, 1971,
REGARDING STATUTORY OR REGULATORY AUTHORITY FOR THE DEDUCTION OF THE
EARNINGS FROM INTERIM CIVILIAN EMPLOYMENT, WE REFER YOU TO THE NAVY
REGULATION WHICH WAS QUOTED IN OUR DECISION OF APRIL 2, 1970, SUBSECTION
723.10(C) OF TITLE 32, CODE OF FEDERAL REGULATIONS, PUBLISHED IN 34 F.R.
19196, DECEMBER 4, 1969, AND NOW INCORPORATED AS 32 C.F.R. 723.10(C),
REVISED AS OF JANUARY 1, 1971, AND TO THE MEMORANDUM OF THE ASSISTANT
SECRETARY OF DEFENSE DATED MARCH 12, 1969, ALSO REFERRED TO IN THAT
DECISION. IN THIS REGARD, IT MAY BE NOTED THAT, AS POINTED OUT IN THAT
DECISION, THE COURT OF CLAIMS HAS CONSISTENTLY REQUIRED THE OFFSET OF
INTERIM CIVILIAN EARNINGS IN JUDGMENTS FOR BACK PAY AND ALLOWANCES
WITHOUT THE BENEFIT OF ANY STATUTE OR REGULATION SO PROVIDING.
ACCORDINGLY WE PROPERLY MAY NOT AUTHORIZE ANY PAYMENT ON THE CLAIMS
OF THESE OFFICERS UNTIL SUCH TIME THERE IS FURNISHED OUR CLAIMS DIVISION
ACCEPTABLE EVIDENCE OR INFORMATION SHOWING THE AMOUNT EACH OFFICER
EARNED FROM CIVILIAN EMPLOYMENT DURING THE PERIOD COVERED BY HIS CLAIM.
THE CLAIMS OF THE OFFICERS FOR DISLOCATION ALLOWANCE WILL BE DISPOSED OF
WHEN FINAL SETTLEMENT ACTION CAN BE TAKEN ON THEIR CLAIMS.
B-172235, AUG 10, 1971
TRAVEL EXPENSES - SHIPMENT OF PRIVATE AUTOMOBILE
ADVANCE DECISION DISALLOWING PAYMENT OF CERTAIN TRAVEL EXPENSES
INCURRED BY EDWARD A. HULL, A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE
AIR FORCE, INCIDENT TO A PERMANENT CHANGE OF STATION FROM MCCLELLAN AFB
TO ELMENDORF AFB.
SINCE CLAIMANT TRANSPORTED THE SECOND AUTOMOBILE FROM SEATTLE TO
ELMENDORF BY SURFACE WATER TRANSPORTATION RATHER THAN BY DRIVING THE
ALASKAN HIGHWAY, HE IS ENTITLED TO MILEAGE ONLY FROM MCCLELLAN TO
SEATTLE. PAYMENT OF EXPENSES FOR THE SHIPMENT OF THE SECOND AUTO IS
BARRED BY BOTH 5 U.S.C. 5727 AND SECTION C7153, JOINT TRAVEL REGULATION,
VOLUME 2.
TO LIEUTENANT COLONEL M. WAGNER, USAF:
FURTHER REFERENCE IS MADE TO YOUR MEMORANDUM OF FEBRUARY 5, 1971, AND
ENCLOSURES, WHICH WAS FORWARDED TO THIS OFFICE THROUGH THE ASSISTANT
COMPTROLLER FOR ACCOUNTING AND FINANCE (HQ USAF), DENVER, COLORADO, AND
THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, WASHINGTON,
D.C., PDTATAC CONTROL NO. 71-16. YOU REQUEST AN ADVANCE DECISION AS TO
THE PAYMENT OF CERTAIN ITEMS OF TRAVEL EXPENSES INCURRED BY MR. EDWARD
A. HULL, A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, IN A
PERMANENT CHANGE OF STATION FROM MCCLELLAN AIR FORCE BASE TO ELMENDORF
AIR FORCE BASE DURING THE MONTH OF SEPTEMBER 1970.
THE FACTS AND CIRCUMSTANCES UPON WHICH THE CLAIM IS BASED, AS STATED
IN YOUR MEMORANDUM, ARE AS FOLLOWS:
"A. MR. HULL PERFORMED PCS TRAVEL BETWEEN MCCLELLAN AND ELMENDORF
AFBS. HIS ORDERS AUTHORIZED THE USE OF MORE THAN ONE AUTOMOBILE PER
PARAGRAPH C6156-1, VOL II, JTR.
"B. MR. HULL DID IN FACT USE TWO VEHICLES FROM MCCLELLAN AFB TO
SEATTLE, WASHINGTON. UPON ARRIVAL IN SEATTLE, MR. HULL MADE A
DETERMINATION THAT ONE VEHICLE WAS UNFIT TO TRAVEL THE ALASKAN HIGHWAY
AND, THEREFORE, SHIPPED THE VEHICLE VIA SURFACE WATER TRANSPORTATION
FROM SEATTLE TO ANCHORAGE. IT IS NOTED THAT SEATTLE IS THE NORMAL PORT
OF DEBARKATION SERVICING ELMENDORF AFB."
YOU FURTHER STATE THAT MR. HULL WAS PAID MILEAGE ALLOWANCE AT THE
RATE OF 18 CENTS PER MILE FOR THE USE OF TWO VEHICLES FROM MCCLELLAN AIR
FORCE BASE TO SEATTLE, WASHINGTON, AND THAT THE REMAINDER OF THE TRIP
FROM SEATTLE TO ELMENDORF AIR FORCE BASE WAS PAID AT THE RATE OF 12
CENTS PER MILE BASED UPON THE USE OF ONE VEHICLE. YOUR SPECIFIC
QUESTIONS IN THIS MATTER ARE:
"A. SHOULD HIGHWAY DISTANCE AT 18[ FOR BOTH VEHICLES HAVE BEEN PAID
FOR THE ENTIRE DISTANCE FROM MCCLELLAN TO ELMENDORF AFBS?
"B. DOES PARAGRAPH C 7152, VOL II, JTR, ALLOW SHIPMENT OF ONE
VEHICLE BY WATER TRANSPORTATION AND STILL PERMIT THE EMPLOYEE TO DRIVE
ANOTHER VIA THE ALASKAN HIGHWAY? IF YES, SHOULD REIMBURSEMENT BE MADE
FOR ACTUAL COST OF THE WATER SHIPMENT ($348.25) OR IS ENTITLEMENT
LIMITED TO COST TO THE GOVERNMENT ($198.50)? OR
"C. SINCE THE APPROVAL FOR THE USE OF TWO VEHICLES WAS BASED ON THE
ASSUMPTION BOTH VEHICLES WOULD BE DRIVEN VIA THE ALASKAN HIGHWAY
(PARAGRAPH C 6156-1 AND C 7153-1-1, VOL II, JTR), IS THE CONDITION OF
THE VEHICLES THE RESPONSIBILITY OF THE EMPLOYEE AND HAS MR. HULL BEEN
PROPERLY PAID?"
PARAGRAPH C 6155 OF THE JOINT TRAVEL REGULATIONS (JTR), VOLUME 2,
PROVIDES THAT:
"1. GENERAL. TRAVEL BETWEEN POINTS IN CONTINENTAL UNITED STATES AND
ALASKA (VIA ALASKA HIGHWAY), NEWFOUNDLAND, MEXICO, OR CENTRAL AMERICA
INCLUDING PANAMA CANAL ZONE (VIA PAN AMERICAN HIGHWAY) BY PRIVATELY
OWNED AUTOMOBILE MAY BE AUTHORIZED SUBJECT TO THE CONDITIONS IN SUBPARS.
2 AND 3.
"2. PERMANENT DUTY TRAVEL, OTHER THAN RENEWAL AGREEMENT TRAVEL. FOR
PERMANENT DUTY TRAVEL, OTHER THAN RENEWAL AGREEMENT TRAVEL, TO AND FROM
PLACES LISTED IN SUBPAR. 1 *** "
THE FACTS AS REPORTED SHOW THAT MR. HULL DID NOT IN FACT DRIVE HIS
SECOND AUTOMOBILE FROM SEATTLE TO ELMENDORF DUE TO MECHANICAL
DIFFICULTIES. EVEN THOUGH HE WAS AUTHORIZED TO USE A SECOND VEHICLE IN
HIS CHANGE OF OFFICIAL STATION, SUCH AUTHORIZATION CONTEMPLATED THE
ACTUAL USE OF SAID VEHICLE IN TRAVELING THE ALASKA HIGHWAY. SINCE THE
CLAIMANT TRANSPORTED HIS SECOND AUTOMOBILE BY SURFACE WATER
TRANSPORTATION FROM SEATTLE TO ELMENDORF, HE WAS ONLY ENTITLED TO
REIMBURSEMENT OF MILEAGE EXPENSES (6 CENTS PER MILE) FOR SAID VEHICLE
FROM MCCLELLAN TO SEATTLE. THEREFORE, YOUR PAYMENT ACTION IN THAT
RESPECT WAS CORRECT. QUESTION "A" IS ANSWERED ACCORDINGLY.
QUESTION "B" DEALS WITH WHETHER REIMBURSEMENT SHOULD BE MADE FOR
SHIPMENT OF THE EMPLOYEE'S SECOND VEHICLE BY SURFACE WATER
TRANSPORTATION FROM SEATTLE TO ELMENDORF. 5 U.S.C. 5727 PROVIDES, IN
PERTINENT PART, AS FOLLOWS:
"(B) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, THE
PRIVATELY OWNED MOTOR VEHICLE OF AN EMPLOYEE *** MAY BE TRANSPORTED AT
GOVERNMENT EXPENSE TO, FROM, AND BETWEEN THE CONTINENTAL UNITED STATES
AND A POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES, OR BETWEEN
POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES, WHEN -
"(1) THE EMPLOYEE IS ASSIGNED TO THE POST OF DUTY FOR OTHER THAN
TEMPORARY DUTY; AND
"(2) THE HEAD OF THE AGENCY CONCERNED DETERMINES THAT IT IS IN THE
INTEREST OF THE GOVERNMENT FOR THE EMPLOYEE TO HAVE THE USE OF A MOTOR
VEHICLE AT THE POST OF DUTY.
"(C) AN EMPLOYEE MAY TRANSPORT ONLY ONE MOTOR VEHICLE UNDER
SUBSECTION (B) OF THIS SECTION DURING A 4-YEAR PERIOD, EXCEPT WHEN THE
HEAD OF THE AGENCY CONCERNED DETERMINES THAT REPLACEMENT OF THE MOTOR
VEHICLE DURING THE PERIOD IS NECESSARY FOR REASONS BEYOND THE CONTROL OF
THE EMPLOYEE AND IS IN THE INTEREST OF THE GOVERNMENT, AND AUTHORIZES IN
ADVANCE THE TRANSPORTATION UNDER SUBSECTION (B) OF THIS SECTION OF ONE
ADDITIONAL PRIVATELY OWNED MOTOR VEHICLE AS A REPLACEMENT. ***
"(D) WHEN THE HEAD OF AN AGENCY AUTHORIZES TRANSPORTATION UNDER
SUBSECTION (B) OF THIS SECTION OF A PRIVATELY OWNED MOTOR VEHICLE, THE
TRANSPORTATION MAY BE BY -
"(1) COMMERCIAL MEANS, IF AVAILABLE AT REASONABLE RATES AND UNDER
REASONABLE CONDITIONS; OR
"(2) GOVERNMENT MEANS ON A SPACE-AVAILABLE BASIS."
WE NOTE THAT MR. HULL'S TRAVEL ORDERS DID NOT INITIALLY PROVIDE FOR
THE TRANSPORTATION OF HIS SECOND AUTOMOBILE BUT WERE AMENDED TO SO
PROVIDE AFTER THE SHIPMENT OCCURRED. FURTHER, IT IS NOTED THAT SUCH
AUTHORIZATION IS PROHIBITED BY SECTION C 7153, JTR, VOLUME 2, WHICH
PROVIDES:
"1. TRANSPORTATION NOT AUTHORIZED. TRANSPORTATION OF A PRIVATELY
OWNED MOTOR VEHICLE WILL NOT BE AUTHORIZED WHEN:
"1. THE MOTOR VEHICLE MAY BE DRIVEN TO THE DUTY STATION OVER
HARD-SURFACED ALL-WEATHER HIGHWAYS, INCLUDING FERRIES, AND IT IS
DETERMINED THAT THE EMPLOYEE, OR MEMBER OF HIS IMMEDIATE FAMILY, SHOULD
REASONABLY BE EXPECTED TO DRIVE THE VEHICLE;"
IN THIS CASE THE SECOND AUTOMOBILE BELONGING TO MR. HULL COULD HAVE
BEEN DRIVEN TO ELMENDORF AIR FORCE BASE, HIS NEW DUTY STATION, ON THE
ALASKA HIGHWAY AND, FURTHER, IT WAS REASONABLE TO EXPECT THAT HE OR HIS
WIFE WOULD DRIVE SAID VEHICLE. IT WAS THE RESPONSIBILITY OF THE
CLAIMANT TO MAINTAIN HIS TWO AUTOMOBILES IN GOOD OPERATING CONDITION FOR
HIGHWAY TRAVEL. HIS FAILURE TO SO MAINTAIN THE SECOND VEHICLE DID NOT
GIVE HIM AUTHORITY TO SHIP SAID VEHICLE FROM SEATTLE TO ELMENDORF AT
GOVERNMENT EXPENSE OR TO BE REIMBURSED FOR MILEAGE THAT WOULD HAVE BEEN
ALLOWABLE IF SUCH VEHICLE HAD ACTUALLY BEEN DRIVEN ON TO ELMENDORF.
QUESTION "B" IS ANSWERED IN THE NEGATIVE. IN VIEW OF OUR ANSWERS TO
QUESTIONS "A" AND "B" NO REPLY IS NECESSARY TO QUESTION "C."
SINCE NO PART OF THE TRAVEL VOUCHER WHICH YOU ENCLOSED MAY BE PAID,
IT IS BEING RETAINED IN OUR FILES.
B-173149, AUG 10, 1971
COOKING UTENSILS - APPROPRIATED FUNDS
DECISION ALLOWING PAYMENT OF A VOUCHER SUBMITTED BY JOHN L.
PRUDHOMME FOR REFUND OF THE COST OF A SET OF STAINLESS STEEL COOKING
UTENSILS PURCHASED FOR USE BY THE EMPLOYEES AT THE FLIGHT SERVICE
STATION, MEMPHIS, TENNESSEE, BECAUSE THERE IS NO CAFETERIA OR SNACK BAR
AVAILABLE.
UNDER THE APPROPRIATION PROPOSED TO BE CHARGED, THE ADMINISTRATIVE
OFFICE IS VESTED WITH CONSIDERABLE DISCRETION AS TO WHAT CONSTITUTES A
NECESSARY EXPENSE. CONSEQUENTLY, IF A RESPONSIBLE OFFICIAL IN THE FAA
DETERMINES THAT THESE UTENSILS ARE ESSENTIAL FOR THE PROPER OPERATION OF
THIS FACILITY, GAO WILL NOT QUESTION THE CERTIFICATION OF THE VOUCHER.
TO MR. R. J. SCHULLERY:
REFERENCE IS MADE TO YOUR LETTER OF MAY 28, 1971, ASKING OUR DECISION
AS TO WHETHER YOU PROPERLY MAY CERTIFY FOR PAYMENT FROM APPROPRIATED
FUNDS A VOUCHER STATED IN FAVOR OF JOHN L. PRUDHOMME. THE VOUCHER IS IN
THE AMOUNT OF $28.09, AND COVERS THE COST OF A SET OF STAINLESS STEEL
COOKING UTENSILS.
IT IS EXPLAINED THAT MANY AIR TRAFFIC CONTROL FACILITIES OPERATE ON A
24-HOUR SCHEDULE AT REMOTE LOCATIONS WITHOUT COMMERCIAL RESTAURANTS OR
SNACK BARS READILY ACCESSIBLE. IT IS NECESSARY AT MOST OF THE
FACILITIES FOR THE EMPLOYEES TO EAT THEIR LUNCHES AND HAVE COFFEE BREAKS
AT OR NEAR THEIR OPERATING PLACES OF DUTY. ALSO, IT IS REPORTED THAT
THE CONTROLLERS ARE REQUIRED TO BE CONTINUOUSLY AVAILABLE FOR DUTY
DURING A FULL 8-HOUR TOUR WHICH MAY COVER ANY PERIOD OF THE DAY OR
NIGHT, SEVEN DAYS A WEEK.
YOU STATE THAT THE COOKWARE IN QUESTION WAS PURCHASED FOR USE AT THE
FLIGHT SERVICE STATION AT MEMPHIS, TENNESSEE, SO THAT THE EMPLOYEES
COULD PREPARE THEIR FOOD. AS DESCRIBED ABOVE, THIS FACILITY ALSO HAS NO
CAFETERIA OR SNACK BAR FROM WHICH EMPLOYEES CAN PURCHASE FOOD AND THE
FLIGHT SERVICE STATION IS MANNED 24 HOURS PER DAY, SEVEN DAYS A WEEK,
AND THE EMPLOYEES MUST REMAIN AT THEIR POST OF DUTY FOR THE FULL 8-HOUR
TOUR OF DUTY.
THE APPROPRIATION PROPOSED TO BE CHARGED WITH THE AMOUNT OF THE
PURCHASE IS THAT FOR "OPERATIONS, FEDERAL AVIATION ADMINISTRATION"
WHICH, WHILE NOT SPECIFICALLY AVAILABLE FOR COOKING UTENSILS, IS
AVAILABLE FOR "NECESSARY EXPENSES NOT OTHERWISE PROVIDED FOR." OBVIOUSLY
THE NUMEROUS OBJECTS OF EXPENDITURE NECESSARY TO ACCOMPLISH THE GENERAL
PURPOSES FOR WHICH THIS PARTICULAR APPROPRIATION WAS MADE COULD NOT BE
STATED IN THE ACT APPROPRIATING THE FUNDS TO CARRY OUT SUCH PURPOSES.
NECESSARILY, THEREFORE, THERE IS VESTED IN THE ADMINISTRATIVE OFFICE A
LARGE MEASURE OF DISCRETION AS TO WHAT PARTICULAR EXPENDITURES ARE
NECESSARY TO EFFECT THE PURPOSES OF THE APPROPRIATION.
IN RECOGNITION OF SUCH FACT, THE USE OF APPROPRIATED FUNDS FOR
OBJECTS NOT SPECIFICALLY MENTIONED IN THE VARIOUS APPROPRIATIONS ACTS,
AND NOT OTHERWISE PROHIBITED HAS NOT BEEN QUESTIONED BY US WHEN SUCH
OBJECTS WERE DEEMED TO HAVE A DIRECT CONNECTION WITH AND TO BE ESSENTIAL
TO THE CARRYING OUT OF THE STATED GENERAL PURPOSES FOR WHICH THE FUNDS
WERE APPROPRIATED.
WHILE WE HAVE NOT PREVIOUSLY CONSIDERED THE PROPRIETY OF PURCHASING
COOKING UTENSILS WE HAVE HELD THAT THE PURCHASE OF A COFFEE MAKER AND
RELATED ARTICLES TO BE USED TO SERVE REFRESHMENTS AT MEETINGS COULD NOT
BE CONSIDERED TO BE A "NECESSARY EXPENSE" AS THAT TERM WAS USED IN THE
APPROPRIATION THEREIN INVOLVED. 47 COMP. GEN. 657 (1968).
HOWEVER, AS NOTED IN YOUR LETTER, THE CIRCUMSTANCES RELATING TO THAT
PURCHASE ARE ENTIRELY DIFFERENT THAN THOSE PRESENT IN THIS CASE. SUCH
DIFFERENCES INCLUDE THE FACT THAT IN THE PRESENT CASE SNACK BARS OR
OTHER PUBLIC EATING FACILITIES WHERE FOOD CAN BE PURCHASED ARE NOT
READILY ACCESSIBLE TO THE EMPLOYEES, THE EMPLOYEES MUST REMAIN AT THEIR
PLACE OF DUTY FOR THEIR FULL 8-HOUR TOUR, AND THE UTENSILS WERE NOT
PURCHASED FOR THE PURPOSE OF SERVING REFRESHMENTS AT MEETINGS OR TO
PRIVATE INDIVIDUALS VISITING THE AIR TRAFFIC CONTROL FACILITIES FOR
BUSINESS OR OTHER REASONS.
IN VIEW OF THE FOREGOING, IF A RESPONSIBLE OFFICIAL IN THE FEDERAL
AVIATION ADMINISTRATION DETERMINES OR HAS DETERMINED THAT THESE UTENSILS
ARE ESSENTIAL FOR THE PROPER PERFORMANCE OF THE AIR TRAFFIC CONTROL
FACILITY INVOLVED, WE WOULD NOT QUESTION YOUR CERTIFICATION OF THE
VOUCHER WHICH IS HEREWITH RETURNED.
B-173222, AUG 10, 1971
CIVILIAN EMPLOYEES - PURCHASE OF RESIDENCE
DECISION CONCERNING RECLAIM VOUCHERS SUBMITTED BY EILEEN D. WOLF AND
RAYMOND E. MONROE FOR REIMBURSEMENT OF EXPENSES IN CONNECTION WITH THE
PURCHASE OF THEIR RESPECTIVE RESIDENCES.
MRS. WOLF MAY BE REIMBURSED $150 TITLE EXAMINATION COST UNDER OMB
CIR. NO. A-56, SECTION 4.2C AND $41.40 MORTGAGE TITLE INSURANCE PREMIUM
UNDER SECTION 4.2D. NO REIMBURSEMENT MAY BE MADE OF THE BALANCE
DESCRIBED GENERALLY AS REPRESENTATION AND CLOSING COSTS.
MR. MONROE MAY RECOVER $100 WHICH WAS PRIMARILY RELATED TO THE
CLOSING AND TO THE PREPARATION OF DOCUMENTS AS AUTHORIZED UNDER SECTION
4.2C. HOWEVER, THE $75 TRANSFER FEE MAY NOT BE REIMBURSED.
TO MRS. OPAL A. SHELTON:
THIS REFERS TO YOUR LETTER OF JUNE 2, 1971, BY WHICH YOU HAVE
FORWARDED THE RECLAIM VOUCHERS OF MRS. EILEEN D. WOLF AND MR. RAYMOND E.
MONROE AND HAVE REQUESTED OUR ADVANCE DECISION AS TO WHETHER THE
VOUCHERS MAY PROPERLY BE CERTIFIED FOR PAYMENT.
MRS. WOLF'S CLAIM IS FOR REIMBURSEMENT OF $266.40 PAID BY HER AS A
LEGAL FEE IN CONNECTION WITH THE PURCHASE OF A RESIDENCE AT HER NEW DUTY
STATION IN ATLANTA, GEORGIA. THIS ITEM WAS SUSPENDED FROM THE ORIGINAL
VOUCHER FOR THE REASON THAT IT WAS NOT SUPPORTED BY A STATEMENT
ITEMIZING THE CHARGES. OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO.
A-56, REVISED JUNE 26, 1969, SECTION 4.2C, PROVIDES AS TO REIMBURSEMENT
OF LEGAL EXPENSES:
"C. LEGAL AND RELATED COSTS. TO THE EXTENT SUCH COSTS HAVE NOT BEEN
INCLUDED IN BROKERS' OR SIMILAR SERVICES FOR WHICH REIMBURSEMENT IS
CLAIMED UNDER OTHER CATEGORIES, 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 CUSTOMARILY PAID BY THE PURCHASER OF A RESIDENCE AT THE
NEW OFFICIAL STATION, TO THE EXTENT THEY DO NOT EXCEED AMOUNTS
CUSTOMARILY CHARGED IN THE LOCALITY OF THE RESIDENCE; COSTS OF (1)
SEARCHING TITLE, PREPARING ABSTRACT, AND LEGAL FEES FOR A TITLE OPINION,
OR (2) WHERE CUSTOMARILY FURNISHED BY THE SELLER, THE COST OF A TITLE
INSURANCE POLICY; COSTS OF PREPARING CONVEYANCES, OTHER INSTRUMENTS,
AND CONTRACTS; RELATED NOTARY FEES AND RECORDING FEES; COSTS OF MAKING
SURVEYS, PREPARING DRAWINGS OR PLATS WHEN REQUIRED FOR LEGAL OR
FINANCING PURPOSES; AND SIMILAR EXPENSES. COSTS OF LITIGATION ARE NOT
REIMBURSABLE."
THE LAW FIRM TO WHICH THE $266.40 FEE WAS PAID HAS NOW EXPLAINED THAT
THE FEE INCLUDES A $41.40 MORTGAGE TITLE INSURANCE PREMIUM AND, OF THE
REMAINDER, IT HAS APPORTIONED $150 TO TITLE EXAMINATION AND
CERTIFICATION, AND $75 TO REPRESENTATION AND CONDUCTING OF THE CLOSING.
THE INFORMATION NOW FURNISHED WARRANTS THE CONCLUSION THAT $150
REPRESENTS CHARGES OF THE TYPE PROPERLY REIMBURSABLE UNDER SUBSECTION
4.2C OF CIRCULAR NO. A-56. ALSO, THE $41.40 MORTGAGE TITLE INSURANCE
PREMIUM MAY BE REIMBURSED UNDER SUBSECTION 4.2D. THERE IS NO BASIS FOR
REIMBURSEMENT OF THE BALANCE DESCRIBED GENERALLY AS REPRESENTATION AND
CLOSING COSTS.
IN REGARD TO MR. MONROE'S RECLAIM, THE RECORD INDICATES THAT THE $175
AMOUNT IS COMPOSED OF $75 CHARACTERIZED BY THE EMPLOYEE'S ATTORNEY AS
LOAN TRANSFER FEES, AND $100 DESCRIBED AS A "CLOSING ONLY" CHARGE IN
CONNECTION WITH THE PURCHASE OF A RESIDENCE AT HIS NEW DUTY STATION.
A LOAN ASSUMPTION FEE, A LOAN ORIGINATION FEE, AND A LOAN TRANSFER
FEE ARE REGARDED AS FINANCE CHARGES WITHIN THE MEANING OF THE TRUTH IN
LENDING ACT, TITLE I, PUBLIC LAW 90-321. SEE B-170787, NOVEMBER 17,
1970, AND DECISION CITED THEREIN. WITH REGARD TO SUCH CHARGES SECTION
4.2D OF CIRCULAR NO. A-56, REVISED JUNE 26, 1969, PROVIDES IN PART AS
FOLLOWS:
" *** 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. *** "
IN VIEW OF THE ABOVE, THE $75 AMOUNT PAID BY MR. MONROE AS A TRANSFER
FEE MAY NOT BE REIMBURSED.
THE $100 "CLOSING ONLY" CHARGE PAID BY MR. MONROE IS STATED BY HIS
ATTORNEY TO BE FOR THE FOLLOWING SERVICES:
"BRIEF INITIAL CONFERENCE; FURNISHING OF REALTY SALES AGREEMENT;
PRELIMINARY COORDINATION WITH LENDERS HOLDING SECURITY INTEREST TO BE
ASSUMED BY PURCHASER; DRAFTING OF CLOSING INSTRUMENTS (INCLUSIVE OF
WARRANTY DEED WITH ASSUMPTION AGREEMENT, SETTLEMENT STATEMENT, AFFIDAVIT
OF SELLER, ONE LENDER'S LOAN ASSUMPTION DOCUMENTS, LETTER NOTIFYING
OTHER LENDER OF LOAN ASSUMPTION); ATTENDANCE UPON CLOSING TRANSACTION;
POST-CLOSING RECORDING AND PROCESSING OF DOCUMENTS AND PAYMENT OF
WITHHELD ITEMS, AND LETTER AND TELEPHONE CALLS TO EFFECT FURTHER LIAISON
BETWEEN PURCHASER AND LENDERS."
THE FEDERAL HOUSING ADMINISTRATION HAS ADVISED YOUR OFFICE THAT THE
FEE IS REASONABLE AND CUSTOMARY. LEGAL AND RELATED COSTS ARE ALLOWABLE
ONLY IF THEY RELATE TO THE TYPE DESCRIBED IN SECTION 4.2C OF CIRCULAR
NO. A-56, QUOTED ABOVE. IT IS APPARENT THAT THE FEE OF $100 WAS
PRIMARILY RELATED TO THE CLOSING AND TO THE PREPARATION OF DOCUMENTS AS
AUTHORIZED UNDER SECTION 4.2C. UNDER THE CIRCUMSTANCES AND SINCE THE
FEE HAS BEEN DETERMINED AS REASONABLE AND CUSTOMARY IT MAY BE ALLOWED.
THE RECLAIM VOUCHERS OF MRS. WOLF AND MR. MONROE ARE RETURNED,
TOGETHER WITH THE FILE, FOR HANDLING IN ACCORDANCE WITH THE ABOVE.
B-173299, AUG 10, 1971
CIVILIAN EMPLOYEE - MOVING EXPENSES - NO DOCUMENTATION
DECISION CONCERNING THE ALLOWANCE OF THE EXPENSES OF SHIPMENT AND
STORAGE OF HOUSEHOLD GOODS TO FREDERIC F. BIGIE INCIDENT TO HIS CHANGE
OF OFFICIAL STATION FROM MEDFORD LAKES, N.J., TO PITTSBURGH, PA.
WHERE NO SCALE WAS AVAILABLE AT POINT OF ORIGIN, EN ROUTE, OR AT
DESTINATION IF THE CLAIMED 9,500 POUNDS OF HOUSEHOLD GOODS WERE PROPERLY
PACKED, CLAIMANT MAY BE REIMBURSED HIS MOVING EXPENSES AT THE COMMUTED
RATE FOR 9,500 FOR THE SHIPMENT.
IN REGARD TO THE 60-DAY STORAGE CHARGE OF $350, SECTION 6.4D(2) OF
OMB CIR. NO. A-56 ENTITLES AN EMPLOYEE TO A COMMUTED RATE OR ACTUAL
EXPENSES, WHICHEVER IS THE LESSER. BECAUSE ONLY 30 DAYS STORAGE WAS
AUTHORIZED BY CLAIMANT'S TRAVEL ORDERS HE MAY RECOVER $175, WHICH IS
LESS THAN THE COMMUTED RATE.
TO MR. ROYAL D. HUGHEY:
WE REFER FURTHER TO YOUR LETTER OF JUNE 11, 1971, CONCERNING THE
ALLOWANCE OF THE EXPENSES OF SHIPMENT AND STORAGE OF HOUSEHOLD GOODS TO
MR. FREDERIC F. BIGIO INCIDENT TO HIS CHANGE OF OFFICIAL STATION TO
PITTSBURGH, PENNSYLVANIA, DURING 1970.
THE VOUCHER TRANSMITTED SHOWS MR. BIGIO CLAIMS $906.30 FOR MOVEMENT
OF 9,500 POUNDS OF HOUSEHOLD GOODS FROM MEDFORD LAKES, NEW JERSEY, TO
PITTSBURGH, PENNSYLVANIA, AND $350 FOR 60 DAYS TEMPORARY STORAGE OF SUCH
GOODS IN WASHINGTON, D.C. THE COPY OF THE TRAVEL AUTHORIZATION ENCLOSED
WITH YOUR LETTER LIMITS TEMPORARY STORAGE TO 30 DAYS. YOU HAVE NO
QUESTION AS TO THE OTHER ITEMS CLAIMED ON THE VOUCHER INCLUDING PER
DIEM, MILEAGE, MISCELLANEOUS EXPENSES, TEMPORARY QUARTERS, AND REAL
ESTATE.
YOU QUESTION THE CLAIM FOR REIMBURSEMENT UNDER THE COMMUTED RATE
SYSTEM FOR SHIPMENT AND STORAGE OF HOUSEHOLD GOODS SINCE NEITHER A
WEIGHT TICKET NOR A RECEIPTED WAREHOUSE BILL HAS BEEN FURNISHED.
MR. BIGIO IN A MEMORANDUM DATED APRIL 23, 1971, DESCRIBED THE
CIRCUMSTANCES SURROUNDING THE MOVEMENT OF THE HOUSEHOLD GOODS FROM
MEDFORD LAKES, NEW JERSEY, TO WASHINGTON, D.C., AND TEMPORARY STORAGE
THERE. OTHER THAN THE VOUCHER ENTRY, THERE IS NO EXPLANATION OR
ASSERTION OF THE MOVEMENT OF THE HOUSEHOLD GOODS FROM WASHINGTON TO
PITTSBURGH. MR. BIGIO EXPLAINS THAT HE MOVED THE HOUSEHOLD GOODS TO
WASHINGTON USING A U-HAUL, PLUS TWO OTHER VEHICLES, WITH THE HELP OF TWO
HIRED MEN ON THE 12TH AND 13TH OF SEPTEMBER 1970.
HE STATES THE U-HAUL WAS A 24-FOOT TRUCK OF 1,392 CUBIC FEET CAPACITY
THAT WAS FULLY AND CORRECTLY LOADED. HE SUBMITS CERTIFICATES FROM THE
TWO ASSISTANTS, JOSEPH E. THREATT AND RANDOLPH R. FARMER, CONFIRMING THE
CAPACITY AND LOAD OF THE U-HAUL AND SHOWING THAT EACH RECEIVED $75 PLUS
MEALS FOR ASSISTING IN THE MOVE. ADDITIONALLY, THE EMPLOYEE SUBMITS A
CERTIFICATE FROM SERENE D. FARMER THAT SHE RECEIVED $350 FROM HIM FOR
THE STORAGE OF APPROXIMATELY 9,500 POUNDS OF HOUSEHOLD GOODS FOR A
PERIOD OF 60 DAYS, BEGINNING SEPTEMBER 13, 1970, AT 7636 SEVENTEENTH
STREET, N.W., WASHINGTON, D.C.
MR. BIGIO STATES WITH RESPECT TO THE ABSENCE OF ACTUAL WEIGHT
DETERMINATION:
"THERE WERE NO WEIGHING STATIONS IN OUR IMMEDIATE AREA THUS, I WAS
UNABLE TO GET THE EMPTY WEIGHT OF THE VEHICLES USED IN THE MOVE (TRUCK
AND TWO CARS). I LEFT NEW JERSEY AT 11:45 PM ON 12 SEPTEMBER 1970 AND
ARRIVED WASHINGTON, D.C. SHORTLY AFTER 3:00 AM ON SUNDAY, 13 SEPTEMBER
1970. WE WERE QUITE TIRED AND PROMPTLY WENT TO OUR RESPECTIVE PLACES OF
LODGING FOR SOME REST BEFORE ATTEMPTING TO UNPACK OUR LOAD LATER IN THE
MORNING. THAT SAME MORNING, I CALLED THE ROCKVILLE BARRACKS OF THE
MARYLAND STATE POLICE TO LOCATE AN OFFICIAL WEIGHING STATION. I WAS
INFORMED BY THE POLICE THAT THERE WAS NO OFFICIAL STATION IN THEIR AREA
AND THAT THEY KNEW OF NO STATION, OFFICIAL OR OTHERWISE, IN THE ENTIRE
METROPOLITAN WASHINGTON AREA. THAT IS WHY THERE IS NO OFFICIAL WEIGHT
OF MY HOUSEHOLD GOODS."
YOU ASK WHETHER REIMBURSEMENT FOR SHIPMENT AND STORAGE OF THE
ESTIMATED WEIGHT OF 9,500 POUNDS OF HOUSEHOLD GOODS CAN BE CERTIFIED FOR
PAYMENT WITH THE DOCUMENTATION FURNISHED. YOU NOTE THAT ADDITIONAL
ALLOWANCE OF 50 CENTS PER CWT. CLAIMED IS NOT PROPER FOR PAYMENT IN THAT
THE SHIPMENT WAS NOT BY COMMON CARRIER.
THE REGULATIONS UNDER THE COMMUTED RATE SYSTEM - SECTION 6.4D(3) OF
OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED JUNE 26, 1969
- PROVIDE IN PERTINENT PART:
"DOCUMENTATION REQUIRED. CLAIMS FOR REIMBURSEMENT UNDER THE COMMUTED
RATE SYSTEM SHALL BE SUPPORTED BY (A) THE ORIGINAL OR A CERTIFIED COPY
OF THE RECEIPTED WAREHOUSE BILL FOR TEMPORARY STORAGE AND (B) IN SUPPORT
OF TRANSPORTATION, THE ORIGINAL BILLS OF LADING OR CERTIFIED COPIES, OR,
IF BILLS OF LADING ARE NOT AVAILABLE, OTHER EVIDENCE SHOWING POINT OF
ORIGIN, DESTINATION AND WEIGHT. IF NO ADEQUATE SCALE IS AVAILABLE AT
POINT OF ORIGIN, AT ANY POINT EN ROUTE, OR AT DESTINATION, A
CONSTRUCTIVE WEIGHT, BASED ON 7 POUNDS PER CUBIC FOOT OF PROPERLY LOADED
VAN SPACE, MAY BE USED. *** "
UNDER THE ABOVE-QUOTED REGULATION, THE WEIGHT OF HOUSEHOLD GOODS
TRANSPORTED FOR THE PURPOSE OF COMPUTING THE COMMUTED RATE PAYMENT
ALLOWABLE MUST BE DETERMINED EITHER BY ACTUAL SCALE WEIGHT OF THE GOODS
OR BY THE CONSTRUCTIVE WEIGHT OF SUCH GOODS DETERMINED ON THE BASIS OF
THE SPACE OCCUPIED WHEN PROPERLY LOADED FOR TRANSPORTATION IN A VAN.
ALSO, SEE 48 COMP. GEN. 115 (1968).
SECTION 6.3 OF CIRCULAR NO. A-56 LIMITS THE TOTAL AMOUNT WHICH MAY BE
REIMBURSED BY THE GOVERNMENT TO THAT NOT IN EXCESS OF THE COST OF
TRANSPORTING THE PROPERTY IN ONE LOT BY THE MOST ECONOMICAL ROUTE FROM
THE LAST OFFICIAL STATION OF THE TRANSFERRING EMPLOYEE TO THE NEW
OFFICIAL STATION.
UNDER THE CIRCUMSTANCES STATED, WE HOLD THAT MR. BIGIO MAY BE
REIMBURSED AT THE COMMUTED RATE FOR 9,500 POUNDS FOR SHIPMENT TO
WASHINGTON, D.C., NOT TO EXCEED WHAT THE COST WOULD HAVE BEEN IF SHIPPED
DIRECTLY TO PITTSBURGH.
IN REGARD TO THE STORAGE OF HOUSEHOLD EFFECTS, WE NOTE THAT UNDER
SECTION 6.4D(2) OF CIRCULAR NO. A-56 AN EMPLOYEE IS ENTITLED TO A
COMMUTED RATE FOR STORAGE OR THE ACTUAL EXPENSES THEREOF WHICHEVER IS
THE LESSER. HERE, THE EMPLOYEE SUBMITTED A RECEIPT SHOWING $350
EXPENDED FOR 60 DAYS STORAGE. THUS, WE MUST ASSUME THE CHARGE FOR 30
DAYS WOULD HAVE BEEN ONE-HALF OF THE AMOUNT OR $175. SINCE STORAGE WAS
ONLY AUTHORIZED FOR 30 DAYS AND AS THE COMMUTED RATE FOR THAT PERIOD IS
IN EXCESS OF $175, THE EMPLOYEE IS ONLY ENTITLED TO $175.
THE VOUCHER IS RETURNED HEREWITH FOR HANDLING IN ACCORDANCE WITH THE
ABOVE.
B-163279, AUG 9, 1971
RELIEF FROM LIABILITY - POSTMASTER
AFFIRMING PRIOR DECISION B-163279, APRIL 14, 1971, WHICH DENIED
RELIEF TO CLAIMANT IN THE AMOUNT OF $129.83 REPRESENTING A SHORTAGE IN
HIS ACCOUNT AS A POSTMASTER.
WHILE IT IS CLEAR THAT THE SHORTAGE COULD HAVE RESULTED, IN PART,
FROM A MALFUNCTIONING ADDING MACHINE, CLAIMANT HAS NOT CARRIED THE
BURDEN OF SHOWING THAT THE DEFICIENCY OF FUNDS UNDER HIS CONTROL WAS
CAUSED SOLELY BY OTHER THAN HIS NEGLIGENCE.
TO MR. LOUIS J. O'CONNELL:
YOUR LETTER OF APRIL 20, 1971, REQUESTS FURTHER RECONSIDERATION OF
OUR PREVIOUS DENIAL OF RELIEF TO YOU IN THE AMOUNT OF $129.83,
REPRESENTING THE SHORTAGE IN YOUR ACCOUNT ALLEGEDLY DUE TO THE
MALFUNCTIONING OF AN ADDING MACHINE.
THE FACTS IN THIS MATTER ARE SET FORTH IN DETAIL IN OUR DECISION OF
APRIL 14, 1971, B-163279, TO YOU, AND NEED NOT BE REPEATED HERE. FROM
YOUR PRESENT LETTER, IT APPEARS THAT BOTH OUR OFFICE AND THE ATLANTA
POSTAL DATA CENTER WERE IN ERROR AS TO THE EXTENT OF USE OF THE ADDING
MACHINE IN QUESTION, AND THAT ITS MALFUNCTION WOULD NOT HAVE BEEN
DETECTED DURING THE ACCOUNTING VERIFICATION OF DAILY CASH RECEIPTS,
SINCE SUCH MACHINE WAS NOT USED FOR THAT PURPOSE.
NEVERTHELESS, AS WAS STATED IN OUR DECISION OF APRIL 14, 1971,
B-163279, IT IS WELL ESTABLISHED THAT IN ORDER TO BE RELIEVED OF
LIABILITY FOR A DEFICIENCY OF FUNDS UNDER HIS CONTROL AN ACCOUNTABLE
OFFICER HAS THE BURDEN OF SHOWING THAT SUCH DEFICIENCY WAS CAUSED BY
OTHER THAN HIS NEGLIGENCE, AND THAT THE MERE FACT OF AN UNEXPLAINED
SHORTAGE IS, IN ITSELF, SUFFICIENT TO RAISE A PRESUMPTION OF NEGLIGENCE
AND, HENCE, THE CLERKS INVOLVED MUST OVERCOME THE PRESUMPTION THAT THE
LOSS WAS CAUSED BY THEIR NEGLIGENCE.
THERE IS STILL NO EVIDENCE TO INDICATE THAT THE LOSS HERE IN QUESTION
WAS DUE SOLELY TO THE MALFUNCTIONING OF THE ADDING MACHINE. IT IS CLEAR
THAT SUCH A SHORTAGE COULD BE THE RESULT OF ANY ONE OR MORE OF A NUMBER
OF DIFFERENT CAUSES, SUCH AS GIVING INCORRECT CHANGE TO A PATRON, GIVING
TOO MANY STAMPS TO A PATRON, ETC. THE RECORD SHOWS ONLY ONE KNOWN
INSTANCE OF MALFUNCTION OF THE MACHINE, AND THERE IS NOTHING TO INDICATE
HOW LONG BEFORE THAT INSTANCE IT MAY HAVE MALFUNCTIONED, OR THAT THE
SHORTAGE AROSE SOLELY THEREFROM. IN THIS CONNECTION, IT APPEARS CERTAIN
THAT THE SHORTAGE DID NOT ARISE SOLELY FROM THE MACHINE MALFUNCTION.
THE MALFUNCTION CONSISTED OF THE MACHINE RENDERING TOTALS WHICH WERE ONE
DOLLAR SHORT. IF SUCH MALFUNCTION WERE THE SOLE CAUSE OF THE SHORTAGE,
IT IS APPARENT THAT THE SHORTAGE MUST BE IN DOLLARS ONLY, WHEREAS THE
SHORTAGE IS $129.83. THUS, IT IS APPARENT THAT, EVEN THOUGH SOME
UNKNOWN PART OF THE SHORTAGE MAY BE ATTRIBUTABLE TO THE MACHINE
MALFUNCTION, PART OF IT MUST BE ATTRIBUTABLE TO OTHER CAUSES ALSO.
IN THE ABSENCE OF EVIDENCE CLEARLY INDICATING THAT THE SHORTAGE, OR A
SPECIFIC PORTION THEREOF, IS SOLELY ATTRIBUTABLE TO THE MALFUNCTIONING
OF THE ADDING MACHINE, OUR PRIOR DECISIONS IN THIS MATTER MUST BE
CONFIRMED, AND RELIEF MUST AGAIN BE DENIED.
B-164467, AUG 9, 1971
FILM FESTIVAL ENTRY FEES
ADVANCE DECISION TO THE BUREAU OF MINES AUTHORIZING PAYMENT OF A
VOUCHER SUBMITTED BY SAMUEL R. SAPPO FOR REFUND OF FEES ADVANCED BY HIM
TO ENTER A FILM PRODUCED BY THE BUREAU IN THE U. S. INDUSTRIAL FILM
FESTIVAL.
IN LIGHT OF THE DIRECT PROGRAM BENEFIT ANTICIPATED, THE COMP. GEN.
WILL NOT QUESTION THE DETERMINATION BY THE DEPUTY DIRECTOR, HEALTH AND
SAFETY, THAT THE EXPENSE OF ENTERING THE FILM IN THE FESTIVAL WAS A
NECESSARY ONE.
TO MR. ROYAL D. HUGHEY:
IN A LETTER DATED MAY 7, 1971, WITH ENCLOSURES, YOU REQUEST AN
ADVANCE DECISION AS TO WHETHER A VOUCHER IN THE AMOUNT OF $50 TO
REIMBURSE MR. SAMUEL R. SAPPO, CHIEF, MOTION PICTURE BRANCH, BUREAU OF
MINES, FOR FEES ADVANCED BY HIM TO ENTER A FILM PRODUCED BY THE BUREAU
OF MINES IN THE U.S. INDUSTRIAL FILM FESTIVAL, MAY BE CERTIFIED FOR
PAYMENT.
ENCLOSED WITH YOUR LETTER IS A MEMORANDUM DATED MARCH 19, 1971,
SIGNED BY THE DEPUTY DIRECTOR, HEALTH AND SAFETY, BUREAU OF MINES, IN
WHICH THE ADMINISTRATIVE JUSTIFICATIONS FOR ENTERING THE FILM IN
QUESTION, ENTITLED "PROTECTION AGAINST RADIOACTIVITY IN URANIUM MINES,"
IN THE CONTEST ARE SET OUT. THE DEPUTY DIRECTOR STATES THAT THE FILM
WAS PRODUCED AS A PART OF THE BUREAU'S PROGRAM TO TEACH HEALTH AND
SAFETY TO PERSONS IN THE MINING INDUSTRY. HE FURTHER STATES THAT THE
BUREAU'S EDUCATIONAL PROGRAM WAS UNDERTAKEN PURSUANT TO SECTION 502 OF
THE FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969, PUB. L. 91-173, 30
U.S.C. 952. SECTION 502 PROVIDES THAT THE SECRETARY OF THE INTERIOR
SHALL EXPAND EXISTING PROGRAMS FOR THE EDUCATION AND TRAINING OF MINE
OPERATORS AND THEIR AGENTS AND MINERS IN COAL MINE SAFETY AND THAT HE
SHALL, TO THE EXTENT POSSIBLE, PROVIDE TECHNICAL ASSISTANCE TO MINE
OPERATORS IN CARRYING OUT THE PROVISIONS OF PUBLIC LAW 91-173 AND IN
FURTHER IMPROVING HEALTH AND SAFETY CONDITIONS AND PRACTICES IN COAL
MINES. THE DEPUTY DIRECTOR ALSO STATES THAT DUE "TO EXTREMELY SHORT
SCHEDULES FOR IMPLEMENTING" THE PROVISIONS OF PUBLIC LAW 91-173, THE
BUREAU FOUND IT "NECESSARY TO ADOPT EVERY MEASURE WHICH WILL SERVE TO
BRING MORE HEALTH AND SAFETY INTO MINING."
THE DEPUTY DIRECTOR STATES THAT THE FILM WAS ENTERED IN THE CONTEST
ON THE BASIS THAT IF IT WERE TO RECEIVE A "GOLD CAMERA" AWARD, THE FILM
"WOULD RECEIVE NATIONAL PUBLICITY RESULTING IN GREATER KNOWLEDGE OF AND
INTEREST IN THE FILM AND THUS MORE PEOPLE WOULD SEE IT AND RECEIVE THE
MESSAGE IT WAS PRODUCED TO CONVEY." WE PRESUME THAT THE FILM WAS ENTERED
IN THE CONTEST IN THE BUREAU'S NAME AND THAT ANY AWARDS WON BY BUREAU
FILMS WILL BE PRESENTED TO THE BUREAU AND NOT TO ANY INDIVIDUAL. SINCE
THE FILM DID WIN A "GOLD CAMERA" AWARD IN ITS CATEGORY, MR. WHEELER
FEELS "IT WAS INSTRUMENTAL IN INCREASING THE NUMBER OF PEOPLE THAT HAVE
AND WILL VIEW THE FILM AND LEARN SOMETHING FROM IT." " *** (IT) RESULTED
IN DIRECT BENEFIT TO THE HEALTH AND SAFETY PROGRAM OF THE BUREAU OF
MINES."
OUR DECISION OF JUNE 14, 1968, B-164467, CONCERNED THE PROPRIETY OF
PAYMENT OF A FEE FOR ENTERING A BUREAU OF MINES PUBLICATION IN THE
ANNUAL GOVERNMENT PUBLICATIONS CONTEST OF THE FEDERAL EDITORS
ASSOCIATION. AS WE STATED THERE, WHETHER THE BUREAU'S APPROPRIATIONS
ARE AVAILABLE FOR PAYMENT OF EXPENSES INCURRED DEPENDS UPON THE
REASONABLENESS OF CONSIDERING SUCH EXPENSES NECESSARY TO CARRY OUT
SPECIFIC AND GENERAL BUREAU FUNCTIONS. BASED ON THE RECORD BEFORE US IN
THAT CASE, WE HELD THAT THE EXPENSE OF ENTERING A BUREAU PUBLICATION IN
THE CONTEST COULD NOT BE CONSIDERED A "NECESSARY EXPENSE" UNDER ANY OF
THE APPROPRIATIONS PROVIDED TO THE BUREAU.
IN THE INSTANT CASE YOUR AGENCY HAS DETERMINED THAT THE EXIGENCIES
INVOLVED IN CARRYING OUT ITS STATUTORY FUNCTIONS AND RESPONSIBILITIES
REQUIRED IT TO TAKE "EVERY MEASURE WHICH WILL SERVE TO BRING MORE HEALTH
AND SAFETY INTO MINING," THAT THERE WAS "A CRITICAL URGENCY TO
DISSEMINATE THE INFORMATION" IN THE FILM, AND THAT THE PUBLICITY GIVEN
TO THE FILM FOR WINNING A "GOLD CAMERA" AWARD WOULD CAUSE MORE PEOPLE TO
VIEW THE FILM AS WELL AS ATTRACT MINERS TO ATTEND TRAINING SESSIONS
WHERE THE FILM IS SHOWN. THEREFORE, IN LIGHT OF THE DIRECT PROGRAM
BENEFIT ANTICIPATED TO FLOW FROM THE ENTRY, WE WILL NOT QUESTION THE
DETERMINATION BY THE DEPUTY DIRECTOR THAT THE EXPENSE OF ENTERING THE
SUBJECT BUREAU OF MINES' FILM IN THE U.S. INDUSTRIAL FILM FESTIVAL WAS A
NECESSARY ONE.
ACCORDINGLY, THE VOUCHER SUBMITTED WITH YOUR LETTER IS RETURNED
HEREWITH AND MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.
B-170377, AUG 9, 1971
BID PROTEST - SOLE SOURCE PROCUREMENT
DENIAL OF PROTEST BY THE JAMES G. BIDDLE COMPANY AGAINST VARIOUS
SOLICITATIONS ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, LOS
ANGELES, CALIFORNIA FOR SOLE SOURCE PROCUREMENT OF CALIBRATION
EQUIPMENT.
ASPR 3-210.2(I) AUTHORIZES PROCUREMENT WITHOUT FORMAL ADVERTISING
WHEN IT IS IMPRACTICAL TO OBTAIN COMPETITION. FROM THIS RECORD, THE
COMP. GEN. IS UNABLE TO CONCLUDE THAT THE ADMINISTRATIVE POSITION IS
ARBITRARY, OR THAT THE SPECIFICATIONS EXCEED THE GOVERNMENT'S NEEDS.
TO JAMES G. BIDDLE COMPANY:
REFERENCE IS MADE TO YOUR LETTER DATED MAY 4, 1971, WITH ENCLOSURES,
AND SUBSEQUENT CORRESPONDENCE, QUESTIONING OUR DECISION, B-170377,
FEBRUARY 19, 1971, AND RAISING FURTHER QUESTIONS REGARDING VARIOUS
SOLICITATIONS ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, LOS
ANGELES, CALIFORNIA.
ESSENTIALLY, YOUR PROTEST QUESTIONS THE DEPARTMENT OF THE NAVY'S
PROCUREMENT ON A SOLE-SOURCE BASIS UNDER THE FOLLOWING SOLICITATIONS:
N00123-70-C-1127, N00123-70-C-0449, N00123-71-R-0630, AND
N00123-71-C-1628. SOLICITATION NO. N00123-70-C-1127 WAS THE SUBJECT OF
THE DECISION OF OUR OFFICE, B-170377, OCTOBER 22, 1970, WHICH DENIED
YOUR PROTEST. OUR DECISION, B-170377, FEBRUARY 19, 1971, DENIED YOUR
PROTEST WITH RESPECT TO SOLICITATION NO. N00123-71-R-0630. BASED UPON
THE PRESENT RECORD, WE FIND NO REASON TO ALTER OUR PRIOR DECISIONS.
WE INDICATED IN OUR FEBRUARY 19, 1971, DECISION THAT THERE WAS A LACK
OF DOCUMENTED JUSTIFICATION FOR PROCURING ITEMS 3 AND 4 OF THE
REQUIREMENTS UNDER SOLICITATION NO. N00123-70-R-0630 ON A SOLE-SOURCE
BASIS, AND CONSEQUENTLY THE REQUIREMENT FOR THOSE ITEMS WAS CANCELLED
WITH THE INTENTION TO PROCURE THEM AT A LATER DATE. IT IS REPORTED THAT
ONE OF THE TWO CANCELLED ITEMS (ITEM NO. 3 OF SOLICITATION NO.
N00123-70-R-0630) IS BEING PROCURED UNDER SOLICITATION NO.
N00123-71-C-1628. THE ADMINISTRATIVE REPORT INDICATES THAT A
DETERMINATION AND FINDINGS (D&F) WAS ISSUED ON APRIL 7, 1971, PROVIDING
FOR THE PROCUREMENT UNDER THE AUTHORITY OF 10 U.S.C. 2304(A)(10), AS
IMPLEMENTED BY ASPR 3-210.2(I). THE STATUTORY PROVISION AUTHORIZES
PROCUREMENT WITHOUT FORMAL ADVERTISING WHEN IT IS IMPRACTICAL TO OBTAIN
COMPETITION. THE ASPR PROVISION AUTHORIZES THE USE OF THE STATUTORY
AUTHORITY WHEN SUPPLIES CAN BE OBTAINED ONLY FROM A SOLE SOURCE. ASPR
3-102(C) REQUIRES PRIOR REVIEW AT A LEVEL HIGHER THAN THE CONTRACTING
OFFICER WHEN A NONCOMPETITIVE PROCUREMENT IS CONTEMPLATED; SUCH
APPROVAL WAS OBTAINED UNDER THIS PROCUREMENT. WE FIND NO REASON TO
QUESTION THE SOLE-SOURCE PROCUREMENT UNDER SOLICITATION NO.
N00123-71-C-1628.
WITH REGARD TO YOUR REFERENCE TO SOLICITATION N00123-70-C-0449, THE
CONTRACTING OFFICER STATES AS FOLLOWS:
"6. ADDITIONALLY, THE 4 MAY LETTER OF PROTEST MADE REFERENCE TO
CONTRACT NUMBER N00123-70-C-0449. THIS CONTRACT, AWARDED TO
ELECTRO-SCIENTIFIC INDUSTRIES, INC., WAS FOR THE PROCUREMENT OF A
PRECISION RESISTANCE MEASURING SYSTEM. THE PROCUREMENT WAS COMPETITIVE;
SIXTY-SIX FIRMS WERE SOLICITED. AMONG THE SPECIFICATIONS WERE
REQUIREMENTS OF MODULARITY AND A SUBMISSION OF A BID SAMPLE. BIDDLE
PROPOSED A NON-MODULAR SYSTEM, AND REFERENCED A UNIT IT HAD SOLD TO
ANOTHER NAVY ACTIVITY AS ITS 'BID SAMPLE.' UPON BEING ADVISED THAT THE
PROPOSAL WAS FOUND NON-RESPONSIVE, BIDDLE PROTESTED THE DECISION TO THE
CONTRACTING OFFICER. THE COMPLAINT WAS FORWARDED TO THE REQUIRING
ACTIVITY WHICH RESPONDED IN DETAIL TO THE AREAS OF TECHNICAL
NON-COMPLIANCE WITH THE REQUIREMENTS. THE SUBJECT CONTRACT WAS ENTERED
INTO ON 6 FEBRUARY 1970, AND FINAL PAYMENT CERTIFIED ON 2 JULY 1970."
WITH REGARD TO YOUR GENERAL CONTENTION THAT THE NAVY IS IMPROPERLY
EXCLUDING YOUR PRODUCT FROM CONSIDERATION AND PURCHASING FROM ANOTHER
SUPPLIER ON A SOLE-SOURCE BASIS, THE CONTRACTING OFFICER'S STATEMENT
INCLUDED AS PART OF THE ADMINISTRATIVE REPORT STATES AS FOLLOWS:
"7. THE COMMENTS IMMEDIATELY ABOVE, CONCERNING MODULARITY, COUPLED
WITH THE ADDITIONAL QUESTIONS RAISED BY THE BIDDLE COMPANY IN ITS MOST
RECENT LETTER OF PROTEST OVER THESE PROCUREMENTS, PUT THE ENTIRE AREA OF
DISPUTE INTO PROPER FOCUS.
"8. NOTWITHSTANDING THE COMPANY'S ADMITTED EXPERTISE IN THE AREA OF
PRECISION MEASURING SYSTEMS, IT IS NOT IN A POSITION TO BE THE ARBITER
OF THE NEEDS OF THE NAVY'S CALIBRATION SYSTEM. THE NEEDS OF THE NAVY
ARE INHERENTLY DIFFERENT FROM THOSE OF PRIVATE INDUSTRY. AS AN EXAMPLE,
FEW, IF ANY, PRIVATE CONCERNS WOULD HAVE NEED OR USE OF A WORLD-WIDE
NETWORK OF CALIBRATION LABORATORIES WHICH MUST PERFORM CONSISTENTLY AND
IN DIRECT CONFORMANCE TO ONE ANOTHER, AND WHICH MUST ENABLE CALIBRATION
TECHNICIANS TO BE TRANSFERRED FROM ONE LABORATORY TO ANOTHER WITH AN
ABSOLUTE MINIMUM OF RETRAINING. BECAUSE OF THE INHERENT MOBILITY OF
NAVAL WEAPONS SYSTEMS AND ASSOCIATED TEST EQUIPMENT, THERE CAN BE NO
ASSURANCE THAT THE EQUIPMENT REQUIRING CALIBRATION SERVICES WILL ALWAYS
BE REFERRED TO THE SAME LABORATORY FOR SUCH SERVICES. INDEED, QUITE THE
CONVERSE IS TRUE; CALIBRATION TWICE IN SUCCESSION BY THE SAME
LABORATORY IS A STATISTICAL IMPROBABILITY FOR FLEET TEST EQUIPMENT.
CONSISTENCY, BOTH OF MEASUREMENT AND TECHNIQUE, MUST BE THE KEYSTONE OF
SUCH A SYSTEM. SUCH CONSISTENCY IS AVAILABLE ONLY WHERE IDENTICAL UNITS,
FROM THE SAME MANUFACTURER, ARE UTILIZED THROUGHOUT THE SYSTEM.
"9. THE PROTESTANT, HOWEVER, IN RESPONDING TO THIS POINT AS FORMERLY
MADE, ASSERTS THAT THE NATIONAL BUREAU OF STANDARDS IS INCAPABLE OF
CERTIFYING TO LEVELS OF UNCERTAINTY AS GOOD AS THOSE REQUIRED OF THE
PROCURED SYSTEM. THE ESI SYSTEM PROCURED IS CAPABLE OF PERFORMING
RESISTANCE COMPARISONS TO A LEVEL OF UNCERTAINTY OF 0.2 PPM (PARTS PER
MILLION). THE NATIONAL BUREAU OF STANDARDS (NBS) IS CURRENTLY CAPABLE
OF PERFORMING TO A COMPARISON UNCERTAINTY OF APPROXIMATELY 0.05 PPM.
THUS, REGARDLESS OF THE UNDERSTANDING OF THE PROTESTANT, THE SYSTEM
PROCURED IS WELL WITHIN THE PRESENT ABILITIES OF THE NBS.
"10. THE LETTERS OF PROTEST RECEIVED FROM THE JAMES G. BIDDLE CO.
IN THESE MATTERS INDICATE A POSSIBLE SOURCE OF CONFUSION. THIS POSSIBLE
SOURCE IS THE DIFFERENCE BETWEEN ABSOLUTE MEASUREMENTS AND COMPARISON
MEASUREMENTS. TO MAKE A RATHER GROSS ANALOGY, CONSIDER THE SITUATION IF
THE NBS HAD ESTABLISHED A STANDARD FOOT ACCURATE TO ONLY + OR - 1/4
INCH. BY DEFINITION THEN, A CALIBRATION SYSTEM WOULD NOT BE ABLE TO
ACCURATELY DETERMINE THAT A GIVEN RULER WERE EXACTLY ONE FOOT + OR - 1/8
INCH, BUT IT COULD BE CAPABLE OF DETERMINING THAT TWO RULERS WERE WITHIN
1/16 INCH IN LENGTH OF EACH OTHER. FOR MANY PURPOSES, IT IS MORE
IMPORTANT TO KNOW THAT THE TWO RULERS ARE SIMILAR THAN IT IS TO KNOW
WHAT THEIR INDIVIDUAL, ABSOLUTE LENGTHS ARE. THUS, CONSISTENCY OF
MEASUREMENT MAY, INDEED, BE ACHIEVED BEYOND LEVELS RELATED TO THE NBS
AND REPRODUCIBLE IN NON-IDENTICAL EQUIPMENTS. THIS STATEMENT IS NOT AN
INDICTMENT OF THE PRECISION MEASURING INDUSTRY. TO ASSUME THAT CERTAIN
MEMBERS OF THE INDUSTRY ARE INCAPABLE OF ACHIEVING REDUCTIONS IN
UNCERTAINTY BEYOND THOSE CURRENTLY AVAILABLE FROM OTHERS, AS THE
PROTESTOR IMPLIES, IS MUCH CLOSER TO AN 'UNWARRANTED INDICTMENT.'
"11. EVEN WERE THIS CONSISTENCY IN COMPARISON AVAILABLE WITH A
MULTIPLICITY OF MEASURING DEVICES (AS EXPERIENCE HAS DEMONSTRATED IT IS
NOT), THERE WOULD YET BE JUSTIFICATION FOR PROCURING IDENTICAL SYSTEMS
FOR EACH LABORATORY. THE NAVY INVESTS LARGE SUMS OF MONEY IN THE
PREPARATION OF TRAINING MANUALS AND COURSES TO ENSURE THAT IT WILL HAVE
A CONTINUING SUPPLY OF ADEQUATELY TRAINED TECHNICIANS TO MAN ITS
CALIBRATION FACILITIES. CALIBRATION MANUALS FOR GIVEN PIECES OF TEST
EQUIPMENT ARE WRITTEN TO ENABLE THE TECHNICIAN TO MAKE THE REQUIRED
MEASUREMENTS AS EFFICIENTLY AS POSSIBLE. WHERE POSSIBLE, THE MANUALS
WILL REFER DIRECTLY TO PROCEDURES USING SPECIFIED CALIBRATION DEVICES.
WHERE THERE ARE A MULTIPLICITY OF DEVICES IN FIELD USE, THE PREPARATION
OF SUCH MANUALS IS IMPOSSIBLE, AND THE MAINTENANCE OF THE EQUIPMENT TO
BE CALIBRATED IS CONSEQUENTLY MORE COSTLY IN BOTH TIME AND LEVEL OF
EXPERTISE REQUIRED TO PERFORM THE TESTS. FINALLY, BY THE VERY NATURE OF
THE MILITARY SYSTEM, THERE IS CONSTANT TURNOVER OF PERSONNEL BETWEEN AND
AMONG THE CALIBRATION LABORATORIES. CONSEQUENTLY, IT BEHOOVES THE NAVY
TO ENSURE THAT IT IS ABLE TO ACCOMPLISH SUCH TRANSFERS WITH AN ABSOLUTE
MINIMUM OF RETRAINING. ONLY BY HAVING IDENTICAL EQUIPMENT AT EACH
FACILITY CAN THESE SKILLED PERSONNEL BE UTILIZED EFFICIENTLY.
"12. IT IS THE MISSION OF THE REQUIRING ACTIVITY FOR THESE
PROCUREMENTS TO ESTABLISH AND MAINTAIN A CALIBRATION SYSTEM COMMENSURATE
WITH THE NEEDS OF THE NAVY. THIS MISSION CANNOT BE FULFILLED BY
MODIFYING THE SYSTEM TO COMPORT WITH THE COMMERCIAL PRODUCTS,
EXPECTATIONS AND EXPERIENCES OF JAMES G. BIDDLE CO., OR ANY OTHER
INDIVIDUAL MANUFACTURER. TO THE CONTRARY, ONLY THOSE PRODUCTS WHICH
COMPLY WITH THE NEEDS OF THE SYSTEM CAN PROPERLY BE CONSIDERED. THOSE
PRODUCTS OF THE JAMES G. BIDDLE CO. WHICH MAY BE POTENTIALLY COMPLIANT
WILL CONTINUE TO BE CONSIDERED DURING THOSE PHASES OF THE REQUIRING
ACTIVITY'S MISSION WHICH ADMIT TO COMPETITIVE PROCUREMENT."
AS EXPLAINED TO YOU IN OUR DECISION OF OCTOBER 22, 1970, THE DRAFTING
OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT AND THE
DETERMINATION AS TO WHETHER THOSE NEEDS CAN BE MET BY A GIVEN PRODUCT
ARE PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING AGENCY. AS IN THE
INSTANT CASE, THIS RULE IS PARTICULARLY APPLICABLE WHERE THE PROCUREMENT
COVERS TECHNICAL EQUIPMENT AND DETERMINATIONS ARE BASED ON EXPERT
TECHNICAL OPINION.
BASED UPON THE RECORD BEFORE US, WE FIND NO LEGAL OBJECTION TO THE
PROCEDURES FOLLOWED BY THE DEPARTMENT OF THE NAVY IN PROCURING THIS
EQUIPMENT ON A SOLE-SOURCE BASIS. WE CANNOT CONCLUDE THAT THE
ADMINISTRATIVE POSITION IS ARBITRARY OR THAT THE SPECIFICATIONS EXCEED
THE GOVERNMENT'S NEEDS. ACCORDINGLY, FOR THE REASONS STATED, YOUR
PROTEST IS DENIED.
B-171569, AUG 9, 1971
BID PROTEST - BID NONRESPONSIVENESS - INSERTION OF UNIDENTIFIED NUMBER
DECISION CONCERNING PROTEST OF BLACK & DECKER MANUFACTURING COMPANY,
SECOND LOW BIDDER, AGAINST THE AWARD OF CONTRACT TO SKIL CORPORATION,
LOW BIDDER, UNDER IFB ISSUED BY GENERAL SERVICES ADMINISTRATION FOR A
QUANTITY OF RECIPROCATING SAWS.
THE INSERTION OF AN UNIDENTIFIED NUMBER "582" IN THE PURCHASE
DESCRIPTION OF ITEM 5 OF THE IFB BY SKIL, IN SUCH A MANNER THAT IT MUST
BE TAKEN AS PART OF THE DESCRIPTION, RENDERED THE BID AMBIGUOUS AND
NONRESPONSIVE, SINCE THE NUMBER CAN BE TRACED TO A SAW IN THE SKIL
CATALOGUE THAT DEVIATES FROM THE IFB PURCHASE DESCRIPTION. PROTEST OF
BLACK & DECKER IS AFFIRMED.
TO SKIL CORPORATION:
REFERENCE IS MADE TO THE LETTER OF JANUARY 11, 1971, IN WHICH YOU
HAVE COMMENTED ON A PROTEST BY BLACK & DECKER MANUFACTURING COMPANY
AGAINST THE AWARD OF A CONTRACT TO YOUR CONCERN UNDER ITEM 5 OF
INVITATION FOR BIDS NO. FPNTP-B6-31387-A-11-5-70.
THE SOLICITATION WAS ISSUED ON OCTOBER 7, 1970, BY THE FEDERAL SUPPLY
SERVICE, GENERAL SERVICES ADMINISTRATION (GSA), FOR A DEFINITE QUANTITY
CONTRACT FOR EIGHT ITEMS OF SAWS AND GRINDERS FOR DELIVERY TO VARIOUS
DESTINATIONS WITHIN THE UNITED STATES. THE ITEM IN ISSUE IN THIS
PROTEST IS ITEM 5, DESCRIBING A REQUIREMENT FOR A QUANTITY OF 3,700
RECIPROCATING PORTABLE ELECTRIC SAWS.
BIDS WERE OPENED ON NOVEMBER 5, 1970, AND YOUR BID WAS LOW FOR ITEM 5
AT $11.92 EACH. THE BLACK & DECKER MANUFACTURING COMPANY WAS THE NEXT
LOW BIDDER FOR THIS ITEM AT $11.99 EACH.
ON ITEM 5, YOU INSERTED THE NUMBER "582" IN THE FIRST LINE OF THE
PURCHASE DESCRIPTION FOR THAT ITEM.
BLACK & DECKER PROTESTED AGAINST AN AWARD TO YOUR CONCERN FOR ITEM 5,
ASSERTING THAT THE NUMBER INSERTED BY YOU IN YOUR BID COULD BE TRACED TO
AN ITEM IN ONE OF YOUR CATALOGS AND THAT THE ITEM AS DESCRIBED IN THE
CATALOG DEVIATED FROM THE SPECIFICATION REQUIREMENT IN THE PURCHASE
DESCRIPTION. BLACK & DECKER'S PROTEST URGED THAT YOUR BID SHOULD BE
REJECTED AS NONRESPONSIVE.
IN ANOTHER RECENT CASE, ALSO INVOLVING YOUR FIRM, B-171417, MARCH 9,
1971 MAY 26, 1971, OUR OFFICE CONSIDERED ISSUES ALMOST IDENTICAL TO THE
ONES PRESENTED IN THIS CASE. WE FOUND THAT THE INSERTION OF AN
UNIDENTIFIED NUMBER IN THE PURCHASE DESCRIPTION IN SUCH A MANNER THAT IT
MUST BE CONSIDERED AS PART OF THE DESCRIPTION, MAKES THE BID AMBIGUOUS
AND REQUIRES THAT SUCH A BID BE REJECTED AS NONRESPONSIVE. IT APPEARS
THAT THE NUMBER "582" CAN BE TRACED TO YOUR CATALOG AND THAT THE ITEM
DESCRIBED IN YOUR CATALOG UNDER "582" MATERIALLY DEVIATES FROM THE
REQUIREMENTS IN THE PURCHASE DESCRIPTION.
GSA HAS ADVISED THAT IN ACCORDANCE WITH THE ABOVE PRECEDENT YOUR BID
HAS BEEN REJECTED AND AWARD FOR ITEM 5 HAS BEEN MADE TO BLACK & DECKER.
UNDER THE FACTS PRESENTED WE FIND THAT THE AWARD WAS PROPERLY MADE.
B-172675, AUG 9, 1971
BID PROTEST - BIDDER RESPONSIBILITY - TIME OF DETERMINATION
DECISION DENYING REQUEST THAT COMP. GEN. RECONSIDER THE PROTEST BY
JIMMIE MUSCATELLO'S AGAINST REJECTION OF ITS LOW BID FOR SHIRTS UNDER
IFB ISSUED BY BUREAU OF PROCUREMENT, DEPARTMENT OF GENERAL SERVICES,
GOVERNMENT OF THE DISTRICT OF COLUMBIA.
THE DETERMINATION OF NONRESPONSIBILITY BY THE PROCURING AGENCY IS NOT
SUBJECT TO QUESTION BY THIS OFFICE. THE CRITICAL DATE FOR SUCH A
DETERMINATION WAS THE DATE OF THE AWARD AND IF, AS HERE, AWARD HAS BEEN
MADE TO THE LOWEST RESPONSIBLE BIDDER, NO CORRECTIVE ACTION IS POSSIBLE
IN THE CASE OF A LOWER NONRESPONSIBLE BIDDER WHO, AFTER AWARD, CONTENDS
IT IS A RESPONSIBLE BIDDER.
TO FAULKNER & SHANDS:
WE REFER TO YOUR LETTER OF JULY 14, 1971, REQUESTING THAT WE
RECONSIDER OUR DECISION DATED JUNE 29, 1971, DENYING THE PROTEST OF
JIMMIE MUSCATELLO'S AGAINST THE REJECTION OF ITS LOW BID FOR SHIRTS
UNDER ITEMS 74 THROUGH 85 IN INVITATION NO. 84-087-1-0463-BS, ISSUED BY
THE BUREAU OF PROCUREMENT, DEPARTMENT OF GENERAL SERVICES, GOVERNMENT OF
THE DISTRICT OF COLUMBIA. YOU FURTHER STATE THAT YOU HAVE BEEN INFORMED
THAT THE BUREAU OF PROCUREMENT INTENDS TO ENTER INTO NEGOTIATIONS WITH
THE CONTRACTOR (LEVANTHAL BROTHERS & COMPANY, INC.) TO CHANGE THE WEIGHT
OF THE SHIRT MATERIAL FROM 3.6 OUNCES TO 4.1 OUNCES. YOU MAINTAIN THAT
TO ALLOW SUCH NEGOTIATIONS WOULD BE UNCONSCIONABLE, AND THAT THE
CONTRACT SHOULD BE AWARDED TO MUSCATELLO'S OR THE PROCUREMENT
RESOLICITED. UPON REVIEW, WE CONCLUDE THAT THE AWARD MADE TO LEVANTHAL
SHOULD NOT BE DISTURBED. OUR JUNE 29 DECISION DEALT WITH MUSCATELLO'S
COMPLAINT THAT IT WAS IN FACT A RESPONSIBLE BIDDER NOTWITHSTANDING THE
FINDING TO THE CONTRARY MADE BY THE BUREAU OF PROCUREMENT. WE
CONCLUDED, IN OUR JUNE 29 DECISION, AFTER A CAREFUL REVIEW OF THE ENTIRE
RECORD, THAT THE DETERMINATION OF NONRESPONSIBILITY WAS NOT SUBJECT TO
QUESTION BY OUR OFFICE. THEREAFTER, THE DISTRICT OF COLUMBIA AWARDED
THE CONTRACT TO LEVANTHAL AS THE LOWEST RESPONSIBLE BIDDER UNDER THE
INVITATION.
IT IS NOW REQUESTED THAT WE, IN EFFECT, FIND MUSCATELLO'S A
RESPONSIBLE BIDDER FOR THIS PROCUREMENT SINCE IT CAN MEET THE REQUIRED
DELIVERY SCHEDULE. HOWEVER, THE CRITICAL DATE FOR SUCH A DETERMINATION
IS THE DATE OF AWARD AND IF, AS HERE, AWARD HAS BEEN MADE TO THE LOWEST
RESPONSIBLE BIDDER, NO CORRECTIVE ACTION IS POSSIBLE IN THE CASE OF A
LOWER NONRESPONSIBLE BIDDER WHO, AFTER AWARD, CONTENDS THAT IT IS IN
FACT A RESPONSIBLE BIDDER.
SINCE WE CONCLUDE THAT NO LEGAL BASIS EXISTS TO CANCEL THE CONTRACT,
A RESOLICITATION OF THE PROCUREMENT IS NOT POSSIBLE.
CONCERNING THE NEGOTIATIONS BEING UNDERTAKEN BY THE BUREAU OF
PROCUREMENT WITH THE CONTRACTOR TO PROVIDE FOR SHIRT MATERIAL WEIGHING
4.1 OUNCES, WE ARE ADVISED THAT SUCH NEGOTIATIONS WERE BEGUN AFTER AWARD
AT THE REQUEST BY THE METROPOLITAN POLICE DEPARTMENT. THE CONTRACTOR,
WE UNDERSTAND, HAS AGREED TO MAKE THIS CHANGE, AS WELL AS SEVERAL OTHER
VERY MINOR CHANGES IN THE SHIRT CONSTRUCTION, WITH NO ADDITIONAL COST TO
THE DISTRICT OF COLUMBIA. SUCH CHANGES WOULD SEEM TO BE AUTHORIZED
UNDER PARAGRAPH 15 OF THE GENERAL CONDITIONS OF THE CONTRACT, WHICH
PROVIDES THAT "THE PROCUREMENT OFFICER MAY, AT ANY TIME, BY WRITTEN
ORDER, *** MAKE CHANGES IN THE CONTRACT WITHIN THE GENERAL SCOPE
THEREOF." THE ADMINISTRATION OF THE LEVANTHAL CONTRACT AND THE
APPLICATION OF THE CHANGES CLAUSE TO PARTICULAR MATTERS IS WITHIN THE
RESPONSIBILITY OF THE DISTRICT OF COLUMBIA GOVERNMENT AND IS NOT SUBJECT
TO THE DIRECTION OR CONTROL BY OUR OFFICE.
ACCORDINGLY, THE DECISION OF JUNE 29, 1971, IS AFFIRMED.
B-173514, AUG 9, 1971
PHILLIPINE WAR BONUS - BARRED CLAIM
AFFIRMING PRIOR DECISION DISALLOWING CLAIM OF MR. ISIDRO N. GARCIA
FOR WAR BONUS AND OTHER CLAIMS INCIDENT TO EMPLOYMENT WITH THE UNITED
STATES DEPARTMENT OF THE ARMY FROM NOVEMBER 16, 1945 TO SEPTEMBER 27,
1948, AND FROM SEPTEMBER 10, 1953, TO DECEMBER 6, 1955.
RECONSIDERATION AS TO EITHER PERIOD IS NOT POSSIBLE EVEN IF CLAIMANT
WAS IN THE SERVICE OF THE UNITED STATES DURING THE KOREAN WAR AS
ALLEGED. THE CLAIM FOR 1945-1948 WAS FILED ON AUGUST 21, 1959, WHICH
WAS TIME BARRED EVEN WITH A FIVE YEAR EXTENSION FROM THE KOREAN
ARMISTICE. AS TO THE 1953-55 PERIOD, THIS CLAIM WAS DISALLOWED ON THE
MERITS; THUS, ALLEGED SERVICE IN KOREA AS A BASIS FOR AN EXTENSION IS
IRRELEVANT.
TO MR. ISIDRO N. GARCIA:
WE HAVE RECEIVED YOUR LETTER OF JUNE 10, 1971, IN WHICH YOU REQUEST
RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENT CERTIFICATE DATED
JANUARY 14, 1960, THAT DENIED YOUR CLAIM FOR ADDITIONAL OVERTIME
COMPENSATION, DIFFERENTIAL PAY, SUBSISTENCE AND QUARTERS ALLOWANCE, AND
WAR BONUS INCIDENT TO YOUR EMPLOYMENT WITH THE UNITED STATES DEPARTMENT
OF THE ARMY (TRANSPORTATION CORPS) FROM NOVEMBER 16, 1945, TO SEPTEMBER
27, 1948, AND FROM SEPTEMBER 10, 1953, TO DECEMBER 6, 1955.
THE BASIS OF YOUR REQUEST FOR RECONSIDERATION IS APPARENTLY YOUR VIEW
THAT YOU WERE EXEMPTED FROM THE TIME LIMITATIONS FOR FILING CLAIMS
AGAINST THE UNITED STATES BY VIRTUE OF YOUR SERVICE WITH THE 24 CORPS,
APO 59 AT SEOUL, SOUTH KOREA. APPARENTLY, YOU HAVE REFERENCE TO THE
PROVISO IN THE BARRED CLAIMS ACT OF 1940, CODIFIED IN 31 U.S.C. 71A, TO
THE EFFECT THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY
FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR
INTERVENES WITHIN 5 YEARS AFTER THE CLAIM ACCRUES, SUCH A CLAIM MAY BE
PRESENTED FOR CONSIDERATION WITHIN 5 YEARS AFTER PEACE IS ESTABLISHED.
YOU DO NOT DEFINITELY SAY WHETHER YOUR SERVICE WITH THE 24 CORPS, APO
59, SEOUL, SOUTH KOREA, WAS PERFORMED IN A MILITARY CAPACITY OR A
CIVILIAN CAPACITY, IT BEING NOTED THAT CIVILIAN SERVICE WOULD NOT
QUALIFY FOR THE TIME EXTENSION GRANTED BY SUCH LAW. HOWEVER, EVEN
THOUGH YOU WERE A MEMBER OF THE MILITARY FORCES, WE POINT OUT THAT THE
KOREAN CONFLICT WAS TERMINATED BY AN ARMISTICE AGREEMENT ON JULY 27,
1953. THIS WOULD HAVE REQUIRED YOUR CLAIM FOR THE EMPLOYMENT PERIOD
FROM 1945 TO 1948 TO HAVE BEEN FILED IN OUR OFFICE BY JULY 27, 1958,
WHEREAS SUCH CLAIM WAS NOT RECEIVED IN OUR OFFICE UNTIL AUGUST 21, 1959.
THE PORTION OF YOUR CLAIM DERIVED FROM YOUR ARMY EMPLOYMENT BETWEEN
SEPTEMBER 10, 1953, AND DECEMBER 6, 1955, WAS NEVER CONSIDERED TO HAVE
BEEN TIME BARRED PURSUANT TO THE BARRED CLAIMS ACT DISCUSSED ABOVE.
RATHER, IT WAS DISALLOWED ON THE MERITS FOR REASONS STATED IN THE
SETTLEMENT CERTIFICATE DATED JANUARY 14, 1960. YOUR PRESENT LETTER DOES
NOT APPEAR TO QUESTION THAT DISALLOWANCE AND DOES NOT CONTAIN ANY
PERTINENT INFORMATION NOT PREVIOUSLY CONSIDERED IN CONNECTION WITH YOUR
CLAIM FOR THE PERIOD FROM 1953 TO 1955. WE THEREFORE ARE NOT AWARE OF
ANY BASIS FOR MODIFYING THE ACTION TAKEN PREVIOUSLY IN DENYING YOUR
CLAIM.
B-113750, AUG 6, 1971
BRIEFING ON OPERATION OF GAO
ADVISING GENERAL E. P. OSCAR VARGES PRIETO, CONTRALOR GENERAL DE LA
REPUBLICA DE PERU, THAT THIS OFFICE WOULD BE PLEASED TO ARRANGE
BRIEFINGS FOR HIM ON THE OPERATIONS OF THE GENERAL ACCOUNTING OFFICE.
TO GENERAL E. P. OSCAR VARGAS PRIETO:
WE HAVE BEEN ADVISED BY THE CONTROLLER OF THE UNITED STATES AID
MISSION TO PERU THAT YOU AND TWO OBSERVERS WILL BE ATTENDING THE
INTERNATIONAL CONGRESS OF SUPREME AUDIT INSTITUTIONS IN MONTREAL,
CANADA, FROM SEPTEMBER 7-17, 1971. WE WERE FURTHER ADVISED THAT YOU AND
YOUR TWO OBSERVERS WOULD LIKE TO SPEND 3 TO 5 DAYS RECEIVING BRIEFINGS
OF OUR OPERATIONS BEFORE OR AFTER ATTENDING THE INTERNATIONAL CONGRESS.
WE WILL BE PLEASED TO ARRANGE FOR THE BRIEFINGS YOU DESIRE. THESE
BRIEFINGS CAN BE ACCOMPLISHED IN A PERIOD OF 3 DAYS; HOWEVER, PERHAPS
WE CAN ARRANGE FOR PROFITABLE DISCUSSIONS FOR 2 DAYS WITH OTHER UNITED
STATES GOVERNMENT AGENCIES IN WASHINGTON, SUCH AS THE DEPARTMENT OF THE
TREASURY AND THE OFFICE OF MANAGEMENT AND BUDGET.
I SUGGEST THAT YOU CONSIDER VISITING US AFTER THE CONGRESS SINCE MANY
OF OUR KEY STAFF MEMBERS WILL BE ABSENT FROM THE OFFICE THE WEEK
PRECEDING THE CONGRESS.
PLEASE ADVISE US OF THE DATES YOU PLAN TO VISIT US SO THAT WE MAY
ARRANGE AN APPROPRIATE SCHEDULE. I HOPE WE MAY EXCHANGE MUTUAL VIEWS
WHILE AT THE CONGRESS IN MONTREAL.
B-171536(1), AUG 6, 1971
BID PROTEST - NONRESPONSIVE BID - AWARD OF CONTRACT WITHOUT NOTICE TO
UNSUCCESSFUL LOW BIDDER
DENIAL OF PROTEST BY AIR SPEED TOOL COMPANY AGAINST THE AWARD OF A
CONTRACT BY THE FEDERAL SUPPLY SERVICE, GSA, TO ARO CORPORATION UNDER
THE IFB ISSUED FOR A REQUIREMENTS TYPE PROCUREMENT OF CERTAIN PORTABLE
PNEUMATIC TOOLS. A PREVIOUS PROTEST BY ARO WAS WITHDRAWN AFTER GSA
AWARDED THEM THE CONTRACT WITHOUT NOTIFYING THE OTHER PARTIES INVOLVED.
SINCE AIR SPEED WAS NOT LISTED ON THE QUALIFIED PRODUCTS LIST AS A
QUALIFIED MANUFACTURER OR DISTRIBUTOR OF THE TOOLS AS REQUIRED BY CLAUSE
11 OF THE SOLICITATION, THEIR BID WAS PROPERLY REJECTED AS BEING
NONRESPONSIVE. FURTHER, WHILE GSA MAY HAVE VIOLATED THE NOTICE
REQUIREMENTS OF FPR 1-2.407-8(B)(3), THAT WILL NOT AFFECT THE LEGALITY
OF THE AWARD.
TO AIR SPEED TOOL COMPANY:
REFERENCE IS MADE TO THE TELEGRAM OF MARCH 4, 1971, AND LETTER OF
MARCH 15, 1971, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE ARO
CORPORATION UNDER INVITATION FOR BIDS (IFB) NO. FPNTP-B6-18729-A,
ISSUED ON OCTOBER 9, 1970, BY THE FEDERAL SUPPLY SERVICE, GENERAL
SERVICES ADMINISTRATION (GSA).
THE SOLICITATION INVITED BIDS FOR A REQUIREMENTS TYPE CONTRACT FOR
CERTAIN PORTABLE PNEUMATIC TOOLS (FSC CLASS-5130) FOR THE PERIOD APRIL
1, 1971, OR DATE OF AWARD, WHICHEVER IS LATER THROUGH JANUARY 31, 1972.
CLAUSE 7 ON PAGE 9 OF THE SOLICITATION PROVIDED THAT AWARD WOULD BE
MADE ITEM-BY-ITEM ON THE BASIS OF THE GOVERNMENT'S ESTIMATED PEAK
MONTHLY REQUIREMENTS. CLAUSE 11 PROVIDED THAT WITH RESPECT TO THOSE
PRODUCTS DESCRIBED IN THE SOLICITATION AS REQUIRING QUALIFICATION,
AWARDS WOULD BE MADE ONLY FOR SUCH PRODUCTS AS HAVE, PRIOR TO THE TIME
SET FOR RECEIPT OF OFFERS, BEEN TESTED AND APPROVED FOR INCLUSION ON THE
QUALIFIED PRODUCTS LIST (QPL) IDENTIFIED IN THE CLAUSE. FOR THOSE ITEMS
WHICH WERE SUBJECT TO THE QPL REQUIREMENT, SPACES WERE PROVIDED IN THE
SCHEDULE BELOW EACH SUCH ITEM AND BIDDERS WERE REQUESTED TO INSERT THE
MANUFACTURER'S NAME AND PRODUCT DESIGNATION AND THE QPL TEST OR
QUALIFICATION REFERENCE NUMBER OF EACH QUALIFIED PRODUCT OFFERED.
BIDS WERE OPENED ON NOVEMBER 17, 1970, AND 16 BIDS WERE RECEIVED.
THE ITEMS IN ISSUE ARE 2, 7, 8, 9, 13 AND 28, ALL OF WHICH WERE SUBJECT
TO THE QPL REQUIREMENT. AIR SPEED WAS LOW BIDDER ON EACH OF THESE
ITEMS.
FOR EACH OF THE QPL ITEMS IN QUESTION, AIR SPEED MADE TWO INSERTIONS
IN THE SCHEDULE'S PURCHASE DESCRIPTION. IN THE SPACES PROVIDED FOR THE
MANUFACTURER'S NAME AND QPL TEST NUMBER, AIR SPEED INSERTED "D-K
PRODUCTS DIVISION" AND ALSO DESIGNATED A QPL TEST NUMBER. IT WAS FOUND
THAT AIR SPEED'S INSERTIONS RELATING TO THE D-K IDENTITY AND QPL TEST
NUMBER WERE LISTED ON THE QPL. ON THE RIGHT HAND SIDE OF THE PURCHASE
DESCRIPTION OF EACH OF THE ITEMS IN QUESTION AIR SPEED INSERTED "AIR
SPEED TOOL COMPANY" AND ITS OWN MODEL NUMBERS. ALSO, ON PAGES 11 AND 12
(PARAGRAPHS 13 AND 15) AIR SPEED INDICATED THAT IT WAS THE MANUFACTURER
OF THE ITEMS IN QUESTION. IT WAS FOUND THAT AIR SPEED WAS NOT LISTED ON
THE APPLICABLE QPL AS A QUALIFIED MANUFACTURER OF THE MODELS OR AS AN
AUTHORIZED DEALER OR DISTRIBUTOR OF THE D-K MODELS.
BY LETTER OF DECEMBER 14, 1970, ARO CORPORATION PROTESTED AGAINST ANY
AWARDS TO YOUR CONCERN FOR ITEMS NOS. 2, 7, 8, 9, 13 AND 28, ON THE
BASIS THAT YOUR BID DID NOT MEET THE QPL REQUIREMENT FOR THESE ITEMS.
AIR SPEED HAD SUBMITTED CERTAIN COMMENTS ON ARO'S PROTEST IN ITS LETTERS
TO OUR OFFICE DATED DECEMBER 21, 1970, JANUARY 8 AND 14, 1971, AND OUR
OFFICE HAD BEEN ADVISED THAT AIR SPEED WOULD SUBMIT ADDITIONAL COMMENTS
WITH RESPECT TO ARO'S PROTEST.
THE CONTRACTING OFFICER REJECTED AIR SPEED'S BID FOR ITEMS NOS. 2, 7,
8, 9 AND 13 AS NONRESPONSIVE PURSUANT TO FEDERAL PROCUREMENT REGULATIONS
(FPR) 1-2.404-2(A) ON THE BASIS THAT THE BIDDER WAS NEITHER AN APPROVED
MANUFACTURER NOR A MANUFACTURER-AUTHORIZED DISTRIBUTOR FOR THESE ITEMS.
IT WAS DETERMINED THAT ALL BIDS WOULD BE REJECTED FOR ITEM NO. 28 AND
THAT NO AWARD WOULD BE MADE FOR THIS ITEM. ITEM NO. 2 WAS AWARDED TO
ROCKWELL MANUFACTURING COMPANY; ITEM NO. 7 WAS AWARDED TO INGERSOLL
RAND COMPANY AND ITEMS NOS. 8, 9 AND 13 AMONG OTHERS WERE AWARDED TO ARO
ON JANUARY 25, 1971. NO NOTICE OF GSA'S INTENT TO MAKE THE ABOVE AWARDS
WAS GIVEN TO OUR OFFICE OR TO AIR SPEED PRIOR TO AWARD. BY LETTER OF
JANUARY 27, 1971, ARO WITHDREW ITS PROTEST TO OUR OFFICE. BY LETTER
DATED FEBRUARY 26, 1971, AIR SPEED WAS ADVISED BY GSA THAT ITS BIDS ON
ITEMS NOS. 2, 7, 8, 9 AND 13 WERE REJECTED AS NONRESPONSIVE.
WE HAVE BEEN ADVISED BY GSA THAT D-K WAS ON THE QPL LIST FOR THE
ITEMS IN QUESTION AT THE TIME OF BID OPENING AND AT THE TIME OF AWARD
(JANUARY 25, 1971). D-K WAS REMOVED FROM THE QPL LIST ON MAY 3, 1971.
A LETTER DATED APRIL 9, 1971, FROM AIR SPEED ADDRESSED TO THE NAVAL SHIP
ENGINEERING CENTER (NSEC), THE AGENCY DESIGNATED IN THE SPECIFICATION AS
BEING RESPONSIBLE FOR THE QPL, INDICATES THAT AIR SPEED PURCHASED D-K'S
OPERATING EQUIPMENT ON APRIL 8, 1971. A LETTER DATED MARCH 15, 1971,
FROM NSEC TO AIR SPEED STATES THAT D-K HAD ADVISED THE CENTER THAT IT
WAS NO LONGER MANUFACTURING THE PRODUCTS ON THE QPL LIST AT ITS LOS
ANGELES FACILITIES. SEE B-171536(2) DATED JUNE 7, 1971.
THE CONTENTIONS IN YOUR PROTEST MAY BE SUMMARIZED AS FOLLOWS:
(1) THAT THE PRODUCTS OFFERED ARE MANUFACTURED BASICALLY BY D-K AND
THEN INSPECTED, ASSEMBLED AND OTHERWISE COMPLETED BY AIR SPEED AND THE
POINT OF PRODUCTION BUT NOT OF BASIC MANUFACTURE IS AT AIR SPEED'S PLANT
ADDRESS.
(2) THAT THE AWARD TO ARO SHOULD BE CANCELLED SINCE GSA FAILED TO
NOTIFY OUR OFFICE OF THE PROPOSED AWARD WHILE YOU WERE IN THE PROCESS OF
COMMENTING ON ARO'S PENDING PROTEST WITH OUR OFFICE.
FPR 1-1.1101(A) PROVIDES THAT WHENEVER QUALIFIED PRODUCTS ARE TO BE
PROCURED ONLY BIDS OR PROPOSALS OFFERING PRODUCTS WHICH HAVE BEEN
QUALIFIED PRIOR TO BID OPENING SHALL BE CONSIDERED IN MAKING AN AWARD.
CLAUSE 11 ON PAGES 10 AND 11 OF THE IFB WAS CONSISTENT WITH THIS
PROVISION. PARAGRAPHS (B) AND (C) OF CLAUSE 11 PROVIDE THAT IF THE
BIDDER WAS NOT THE ACTUAL MANUFACTURER OF A QUALIFIED PRODUCT, OR A
QUALIFIED DISTRIBUTOR, I.E., ONE AUTHORIZED BY THE MANUFACTURER TO
REBRAND AND DISTRIBUTE THE MANUFACTURER'S PRODUCT UNDER THE
DISTRIBUTOR'S OWN BRAND DESIGNATION (SEE PARAGRAPH 11(C)), SUCH BIDDER
WOULD BE INELIGIBLE TO BID ON THE QUALIFIED PRODUCTS. IT IS APPARENT
THAT AIR SPEED WAS BIDDING AS A DISTRIBUTOR FOR D-K ON THE ITEMS IN
QUESTION. AS STATED, D-K WAS LISTED ON THE QPL FOR THESE ITEMS AT THE
TIME OF BIDDING. HOWEVER, AIR SPEED WAS NEITHER LISTED ON THE QPL AS A
MANUFACTURER NOR AS AN AUTHORIZED DEALER OR DISTRIBUTOR OF THE D-K
MODELS. ACCORDINGLY, AIR SPEED'S BIDS FOR THE ITEMS IN QUESTION WERE
PROPERLY REJECTED PURSUANT TO CLAUSE 11 OF THE SOLICITATION. 36 COMP.
GEN. 809 (1957).
WITH REGARD TO CONTENTION (2) ABOVE, GSA HAS CONCEDED THAT IT FAILED
TO NOTIFY OUR OFFICE PRIOR TO PROCEEDING WITH THE AWARD TO ARO. IN THIS
REGARD GSA CONSTRUED FPR 1-2.407-8(B)(3) AS PROTECTING THE INTERESTS OF
A PROTESTING BIDDER AND SINCE ARO HAD AGREED TO WITHDRAW ITS PROTEST
UPON RECEIPT OF AWARD, GSA DID NOT GIVE NOTIFICATION OF THE PROPOSED
AWARD EITHER TO OUR OFFICE OR TO AIR SPEED. GSA CONCEDES THAT A LITERAL
READING OF THE REGULATION WOULD REQUIRE NOTICE TO OUR OFFICE UNDER THE
FACTS PRESENTED. GSA HAS ADVISED THAT ADMINISTRATIVE ACTION HAS BEEN
TAKEN TO AVOID A RECURRENCE OF THIS TYPE OF SITUATION AND THAT FPR AND
THE GENERAL SERVICES ADMINISTRATION PROCUREMENT REGULATIONS WILL BE
REVIEWED FOR THE PURPOSE OF DETERMINING WHETHER ANY CHANGES SHOULD BE
MADE TO SPECIFICALLY COVER THIS TYPE OF CASE. WHILE THERE APPARENTLY
WAS SOME CONFUSION WITH RESPECT TO THE NOTICE REQUIREMENT IN FPR
1-2.407-8(B)(3), GSA'S FAILURE TO PROVIDE PROPER NOTICE TO OUR OFFICE OR
TO THE UNSUCCESSFUL LOW BIDDER DOES NOT AFFECT THE LEGALITY OF THE
AWARDS MADE. SEE B-168753, MARCH 25, 1970.
WE ARE ADVISING GSA THAT APPROPRIATE STEPS SHOULD BE TAKEN TO ASSURE
THAT UNSUCCESSFUL LOWER BIDDERS ARE GIVEN PROMPT NOTICE OF THE REJECTION
OF THEIR BIDS IN ACCORDANCE WITH FPR 1-2.408(A)(1).
THE LETTER OF MARCH 15 ALSO MENTIONS BLACK AND DECKER'S PROTEST ON
DIFFERENT GROUNDS AGAINST AN AWARD TO AIR SPEED FOR ITEM NO. 5. THIS
PROTEST WAS THE SUBJECT OF OUR DECISION B-171536(2), JUNE 7, 1971 (COPY
ENCLOSED); CONSEQUENTLY, WE DO NOT FIND IT NECESSARY TO COMMENT FURTHER
ON THAT PROTEST.
B-171536(2), AUG 6, 1971
BID PROTEST - FAILURE OF NOTICE OF AWARD
LETTER ENCLOSING COPY OF DECISION DENYING PROTEST BY AIR SPEED TOOL
COMPANY AGAINST AWARD OF A CONTRACT UNDER AN IFB ISSUED BY THE FEDERAL
SUPPLY SERVICE.
WHILE THE FACT THAT AIR SPEED, THE UNSUCCESSFUL LOW BIDDER, WAS NOT
NOTIFIED OF THE REJECTION OF THEIR BID DOES NOT PROVIDE A BASIS FOR
CHALLENGING THE VALIDITY OF THE AWARD, THIS WAS A VIOLATION OF FPR
1-2.408(A)(1) AND STEPS SHOULD BE TAKEN TO PREVENT SUCH OCCURRENCES IN
THE FUTURE.
TO MR. KUNZIG:
REFERENCE IS MADE TO THE LETTER OF JUNE 16, 1971, FROM YOUR GENERAL
COUNSEL, CONCERNING A PROTEST BY AIR SPEED TOOL COMPANY, AGAINST CERTAIN
AWARDS MADE UNDER SOLICITATION NO. FPNTP-B6-18729-A, ISSUED BY THE
FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION (GSA). WE ARE
ENCLOSING A COPY OF OUR DECISION OF TODAY DENYING THE PROTEST.
THE RECORD INDICATES THAT ARO WAS AWARDED ITEMS NOS. 8, 9 AND 13 ON
JANUARY 25, 1971. AIR SPEED APPARENTLY WAS NOT ADVISED THAT ITS BID FOR
THESE ITEMS, AMONG OTHERS, WAS REJECTED AS NONRESPONSIVE UNTIL FEBRUARY
26, 1971. FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.408(A)(1) PROVIDES
FOR PROMPT NOTICE TO UNSUCCESSFUL LOWER BIDDERS OF THE REJECTION OF
THEIR BIDS. WE DO NOT THINK THE NOTICE IN THIS CASE COMPLIED WITH THIS
REQUIREMENT OF FPR. WHILE THIS DOES NOT CONSTITUTE A BASIS FOR
QUESTIONING THE VALIDITY OF THE AWARD, WE ARE BRINGING THE MATTER TO
YOUR ATTENTION FOR FUTURE PROCUREMENTS SO THAT APPROPRIATE STEPS MAY BE
TAKEN TO ASSURE THAT UNSUCCESSFUL LOWER BIDDERS WILL BE PROMPTLY
NOTIFIED OF THE REJECTION OF THEIR BIDS.
B-172073, AUG 5, 1971
CIVILIAN EMPLOYEE - DUAL COMPENSATION
DECISION UPON REVIEW WAIVING COLLECTION OF $570.00 ERRONEOUSLY PAID
AS DUAL COMPENSATION TO MR. WILLIAM N. BURGE, JR., EMPLOYEE OF THE ARMY
MAP SERVICE, WHILE ASSIGNED TO DUTY STATION IN KHARTOUM, SUDAN, WITH
SALARY PAID BY DEPARTMENT OF STATE.
SINCE MR. BURGE WAS NOT REASONABLY AWARE OF THE FACT THAT HE HAD
RECEIVED DUAL COMPENSATION, AS SHOWN BY INFORMATION SUPPLIED BY HIM,
COLLECTION IS WAIVED.
TO MR. WILLIAM N. BURGE, JR.:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 12, 1971, IN
WHICH YOU REQUEST REVIEW OF THE DENIAL OF YOUR CLAIM FOR WAIVER OF
OVERPAYMENT OF PAY IN THE GROSS AMOUNT OF $570 BY SETTLEMENT OF THIS
OFFICE DATED AUGUST 17, 1970.
THE FACTS AND CIRCUMSTANCES SURROUNDING THE OVERPAYMENT AS SET FORTH
IN OUR CLAIMS DIVISION LETTER REFERRED TO ABOVE AND ADDRESSED TO THE
COMMANDING GENERAL, FINANCE CENTER, DEPARTMENT OF THE ARMY, ARE AS
FOLLOWS:
"THE RECORD SHOWS THAT MR. BURGE WAS EMPLOYED BY THE ARMY MAP
SERVICE, CARTOGRAPHIC SURVEY PROJECT, AND ASSIGNED TO DUTY IN KHARTOUM,
SUDAN. SALARY PAYMENTS WERE MADE TO HIM BY THE DEPARTMENT OF STATE. DUE
TO EMERGENCY CONDITIONS ARISING IN THE AREA THE DEPARTMENT OF STATE
EVACUATED MR. BURGE FROM KHARTOUM IN JUNE 1967. THE PROJECT IN THE
SUDAN WAS CANCELLED IN AUGUST 1967 AND THE PAYROLL OFFICE WAS MOVED TO
PARIS, FRANCE. MR. BURGE'S SERVICES AT KHARTOUM WERE TERMINATED
EFFECTIVE AUGUST 19, 1967, AND HE WAS REASSIGNED TO THE ARMY MAP SERVICE
IN LOUISVILLE, EFFECTIVE AUGUST 20. IN SEPTEMBER 1967 IT WAS
ADMINSTRATIVELY DISCOVERED THAT ALTHOUGH MR. BURGE WAS BEING PAID BY THE
ARMY MAP SERVICE, THE DEPARTMENT OF STATE CONINUED TO MAIL SALARY CHECKS
TO MR. BURGE'S BANK FOR THE PERIOD FROM AUGUST 20 TO SEPTEMBER 9, 1967,
THUS RESULTING IN RECEIPT OF DUAL COMPENSATION IN THE GROSS AMOUNT OF
$570.00. IT IS REPORTED THAT DUE TO THE EMPLOYEE'S SUDDEN EVACUATION
FROM KHARTOUM AND TRANSFER TO THE ARMY MAP SERVICE, STANDARD FORM 50
INDICATING HIS EFFECTIVE DATE OF SEPARATION AND EFFECTIVE DATE OF
REINSTATEMENT WAS NOT FORWARDED BY THE DEPARTMENT OF STATE TO THE
FINANCE CENTER IN PARIS, FRANCE, IN SUFFICIENT TIME TO PRECLUDE THE
ERRONEOUS PAYMENTS.
"MR. BURGE STATED THAT HE COULD NOT ASCERTAIN FROM AN EXAMINATION OF
HIS BANK STATEMENT FOR SEPTEMBER 1967 THAT HE WAS NOT ENTITLED TO
RECEIPT OF THE SALARY CHECKS."
IN YOUR RECENT LETTER, YOU STATE THAT YOU BELIEVE OUR PRIOR
DETERMINATION WAS BASED UPON INFORMATION THAT WAS NOT FACTUALLY CORRECT.
YOU STATE, BY WAY OF CLARIFICATION, THAT YOU WERE NOT EVACUATED FROM
KHARTOUM, SUDAN, BY THE DEPARTMENT OF STATE BUT THAT YOU AND YOUR FAMILY
DEPARTED KHARTOUM ON JUNE 4, 1967, ON HOME LEAVE WITH ORDERS TO RETURN.
YOU STATE THAT AT THE TIME THE AMERICANS WERE EVACUATED FROM KHARTOUM TO
NAIROBI, KENYA, ON JUNE 11, 1967, YOU AND YOUR FAMILY WERE IN THE UNITED
STATES. YOU FURTHER REPORT THAT YOUR SEPTEMBER 1967 BANK STATEMENT DID
NOT REACH YOU UNTIL APPROXIMATELY 5 MONTHS AFTER IT WAS ISSUED AND THAT
SUCH DELAY WAS CAUSED BY THE FORWARDING OF THE DEPOSIT RECEIPTS BY YOUR
BANK TO THE SUDAN BY DEPARTMENT OF STATE SEA POUCH AS WAS DONE DURING
THE PREVIOUS 2 YEARS. ALSO, YOU SAY THAT IT WAS NOT A QUESTION OF YOUR
HAVING REASON TO BELIEVE THAT YOU WERE ENTITLED TO PAY FROM BOTH THE
DEPARTMENT OF STATE AND THE ARMY MAP SERVICE BUT RATHER TO THE FACT OF
NOT KNOWING WHAT PAY PERIODS WERE COVERED WHEN YOU DID RECEIVE THE
SEPTEMBER BANK STATEMENT WHICH WAS AFTER NOTIFICATION OF OVERPAYMENT
(FEBRUARY 7, 1968).
IN VIEW OF THE ADDITIONAL FACTS SET FORTH IN YOUR LETTER AS WELL AS
THE OTHER FACTS OF RECORD, IT IS NOW OUR OPINION THAT YOU COULD NOT HAVE
REASONABLY BEEN AWARE OF ANY DUAL PAYMENT AT THE TIME IT OCCURRED. IN
VIEW THEREOF, AND AS IT DOES NOT APPEAR THAT YOU WERE OTHERWISE AT FAULT
IN THE MATTER, WE HEREBY WAIVE COLLECTION OF THE ERRONEOUS PAYMENT OF
$570.
A COPY OF THIS LETTER IS BEING FURNISHED TO THE COMMANDING GENERAL,
FINANCE CENTER, U. S. ARMY, AUTHORIZING HIM TO REFUND TO YOU ANY AMOUNTS
COLLECTED IN THE MATTER.
B-172963, AUG 5, 1971
BID PROTEST - NONRESPONSIBLE BIDDER - EVALUATION OF BIDS
DENIAL OF PROTEST BY UMC ELECTRONICS CO. AGAINST THE AWARD OF A
CONTRACT TO ANY OTHER FIRM UNDER AN IFB ISSUED BY THE SAN ANTONIO AIR
MATERIEL AREA FOR AN INDEFINITE QUANTITY CONTRACT FOR ELECTRICAL TEST
SETS. PROTESTANT CONTENDS THAT THE LOW BIDDER, NATIONAL AVIATION
ELECTRONICS, INC., IS NOT AN OPERATING COMPANY AND IS NONRESPONSIBLE.
UMC ALSO CONTENDS THAT THE BIDS WERE IMPROPERLY EVALUATED.
THE DETERMINATION AS TO FIRM'S RESPONSIBILITY IS FOR THE CONTRACTING
OFFICER TO MAKE, AND THERE IS NO RECORD THAT SUCH A DETERMINATION HAS
BEEN MADE AS YET. UMC'S PROTEST IS THEREFORE PREMATURE AS TO THIS
POINT. IN ORDER FOR FACTORS TO BE CONSIDERED FOR EVALUATION PURPOSES,
THEY MUST BE LISTED IN THE IFB. THE FACTORS STRESSED BY PROTESTANT WERE
NOT CONTAINED IN THE IFB AND CONSEQUENTLY CANNOT BE USED IN EVALUATING
THE BIDS.
TO UMC ELECTRONICS CO.:
REFERENCE IS MADE TO YOUR LETTER OF JULY 7, 1971, AND PRIOR
CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER
FIRM UNDER INVITATION FOR BIDS (IFB) NO. F41608-71-B-0522, ISSUED BY THE
SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, TEXAS.
THE IFB, WHICH PROVIDED FOR A 100-PERCENT SMALL BUSINESS SET-ASIDE,
CONTEMPLATED AN AWARD OF AN INDEFINITE QUANTITY CONTRACT FOR ELECTRICAL
TEST SETS WITH A FIRM INITIAL ORDER OF 69 SETS. BIDDERS WERE ADVISED TO
BID ON BOTH THIS INITIAL ORDER QUANTITY AND EACH INCREMENT OF THE
INDEFINITE QUANTITY IDENTIFIED IN THE SCHEDULE AS A FOLLOW-ON QUANTITY.
IT WAS ESTIMATED THAT 160 SETS WOULD BE ORDERED OVER THE LIFE OF THE
CONTRACT. AFTER BIDS WERE OPENED AND EVALUATED THE THREE LOWEST BIDDERS
WERE NATIONAL AVIATION ELECTRONICS, INC. (NATIONAL), WITH A BID OF
$1,247,494.20; ESSEX ELECTRO ENGINEERS, INC. (ESSEX), WITH A BID OF
$1,289,688.40; AND UMC ELECTRONICS CO. (UMC) WITH A BID OF
$1,300,426.20.
UMC'S PROTEST RAISES TWO CONTENTIONS. FIRST, THERE IS THE CONTENTION
THAT NATIONAL IS NOT AN OPERATING COMPANY AND THEREFORE CANNOT BE
CONSIDERED RESPONSIBLE UNDER THE APPLICABLE PROVISIONS OF THE ARMED
SERVICES PROCUREMENT REGULATION. SECONDLY, THERE IS THE CONTENTION THAT
BIDS WERE IMPROPERLY EVALUATED SINCE CERTAIN MATTERS WHICH UMC FEELS ARE
IMPORTANT WERE NOT TAKEN INTO CONSIDERATION IN EVALUATING THE BIDS.
WITH RESPECT TO THE FIRST OF THE FOREGOING CONTENTIONS, WHETHER A
FIRM IS OR IS NOT RESPONSIBLE IS FOR THE DETERMINATION OF THE
CONTRACTING OFFICER IN THE FIRST INSTANCE. MOREOVER, SUCH A
DETERMINATION WILL NOT BE DISTURBED BY OUR OFFICE ABSENT A SHOWING THAT
THE CONTRACTING OFFICER ACTED UNREASONABLY OR IN BAD FAITH. SINCE, TO
THE BEST OF OUR KNOWLEDGE, THE CONTRACTING OFFICER HAS NOT AS YET MADE A
DETERMINATION AS TO NATIONAL'S RESPONSIBILITY, THE FIRST POINT OF
PROTEST IS PREMATURE INSOFAR AS OUR OFFICE IS CONCERNED. FURTHER, EVEN
SHOULD NATIONAL BE FOUND NONRESPONSIBLE, THE ESSEX BID WOULD THEN BE IN
LINE FOR CONSIDERATION BEFORE THE UMC BID.
RESOLUTION OF THE SECOND CONTENTION REQUIRES CONSIDERATION OF THE
FOLLOWING IFB PROVISIONS:
"C-10. AWARD OF CONTRACT. (A) THE CONTRACT WILL BE AWARDED TO THAT
RESPONSIBLE OFFEROR WHOSE OFFER CONFORMING TO THE SOLICITATION WILL BE
MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.
"D-5. EVALUATION OF OFFERS:
"OFFERS SHALL BE EVALUATED IN ACCORDANCE WITH PARAGRAPH C-10 HEREOF
AND THE FOLLOWING: THE MOST ADVANTAGEOUS OFFER SHALL BE CONSIDERED TO
BE THE LOWEST EVALUATED TOTAL PRICE. THE TERM 'LOWEST EVALUATED TOTAL
PRICE' MEANS THE LOWEST PRICES ADJUSTED BY DEDUCTION OF ANY ALLOWABLE
DISCOUNTS, AND COMPUTED IN THE FOLLOWING MANNER:
"(A) STEP 1. THE INITIAL ORDER QUANTITY SHALL BE MULTIPLIED BY THE
OFFERED UNIT PRICE FOR THAT QUANTITY.
"(B) STEP 2. THE QUANTITY OF ITEMS REPRESENTED IN EACH INCREMENT OF
THE FOLLOW-ON PORTION OF THIS SOLICITATION SHALL BE MULTIPLIED BY THE
UNIT PRICE OFFERED FOR THE INCREMENT.
"(C) STEP 3. THE PRODUCTS DERIVED IN STEP 1 SHALL BE ADDED TO THE
PRODUCTS ARRIVED AT IN STEP 2. IF THE SOLICITATION SPECIFIES F.O.B.
DESTINATION, THIS SHALL BE THE EVALUATED TOTAL PRICE. (BUT, SEE STEP 5
BELOW)
"(D) STEP 4. IF THE SOLICITATION SPECIFIES F.O.B. ORIGIN, THE
EVALUATED TOTAL PRICE SHALL BE DERIVED BY ADDING TRANSPORTATION COSTS
FOR THE BEQ TO THE RESULT OBTAINED IN STEP 3. TRANSPORTATION COSTS
SHALL BE ASSESSED IN ACCORDANCE WITH THE PROVISION HEREOF ENTITLED
'EVALUATION - F.O.B. ORIGIN'. (BUT, SEE STEP 5 BELOW)
"(E) STEP 5. IN THE EVENT A PROVISION IS INCLUDED IN SCHEDULE
SECTION E OF THIS SOLICITATION REQUESTING PRICE DIFFERENTIALS FOR
MILITARY ASSISTANCE AND FOREIGN MILITARY SALES PROGRAMS, THE UNIT PRICE
DIFFERENTIALS OFFERED SHALL BE MULTIPLIED BY THE ESTIMATED QUANTITY THAT
MAY BE ORDERED FOR EACH OF THESE PROGRAMS. THE SUM OF THESE PRODUCTS
SHALL BE ADDED TO THE RESULTS OBTAINED IN STEP 3 OR 4 ABOVE (AS
APPLICABLE), AND THIS SUM SHALL BE THE EVALUATED TOTAL PRICE.
"(F) DESTINATION UNKNOWN (1968 JUNE)
FOR THE PURPOSE OF EVALUATING OFFERS, AND FOR NO OTHER PURPOSE, THE
FINAL DESTINATION FOR THE SUPPLIES WILL BE CONSIDERED TO BE KELLY AIR
FORCE BASE, TEXAS."
UMC CONTENDS THAT THE TERM "OTHER FACTORS CONSIDERED" REQUIRES THE
CONTRACTING OFFICER TO CONSIDER, IN ADDITION TO THE BID PRICE, OTHER
MATTERS WHICH WOULD MAKE AN AWARD TO UMC MORE ADVANTAGEOUS TO THE
GOVERNMENT. IN THIS CONNECTION, UMC POINTS OUT THE FOLLOWING: FIRST,
THAT THERE IS NO GUARANTEE THAT ANY FOLLOW-ON QUANTITIES WILL BE ORDERED
AND UMC'S PRICE ON THE INITIAL REQUIRED QUANTITY IS SOME $64,000 LESS
THAN THE NEXT LOW BIDDER ON THE SAME QUANTITY; SECOND, THAT THE
INTEREST SAVED ON THAT $64,000 AMOUNTS TO AN ADDITIONAL $4,000 SAVINGS
TO THE GOVERNMENT; THIRD, THAT UMC CAN DELIVER THE ITEMS 30 DAYS SOONER
THAN THE TWO LOWER BIDDERS; FOURTH, THAT AWARD OF THE CONTRACT TO UMC
WOULD RESULT IN STANDARDIZATION WITH UMC UNITS ALREADY IN INVENTORY,
PARTS INTERCHANGEABILITY, SPARE PARTS AVAILABILITY, AND THE POSSIBLE
SAVINGS OF AMOUNTS ALLOCATED TO SPARE PARTS PROVISIONING; FIFTH, UMC
CONTENDS THAT ITS LOCATION IN A SUBSTANTIAL LABOR SURPLUS AREA SHOULD BE
CONSIDERED; AND, AS A SIXTH AND FINAL MATTER, UMC HAS INFORMALLY URGED
THE POSITION THAT THE FAILURE OF THE CONTRACTING OFFICER TO CONSIDER
SHIPPING THE SUPPLIES AT LEAST PART WAY BY SHIP PLACED IT AT A
COMPETITIVE DISADVANTAGE BECAUSE OF THE DISTANCE BETWEEN ITS PLANT AND
THE DESTINATION NAMED IN THE IFB.
WE MAY DISPOSE OF THIS LATTER POINT BY REFERENCE TO THE TERMS OF THE
IFB WHICH CONTEMPLATE DELIVERY ON AN F.O.B. ORIGIN BASIS (PARAGRAPH
H-4), UTILIZATION OF "LAND MODES OF TRANSPORTATION" AS THE "NORMAL MODES
OF TRANSPORTATION" WITHIN THE UNITED STATES (PARAGRAPH D-2), AND THAT
THE DESTINATION FOR THE SUPPLIES FOR EVALUATION PURPOSES WAS KELLY AIR
FORCE BASE, TEXAS (PARAGRAPH D-5(F), SUPRA).
AS TO THE OTHER MATTERS RAISED BY UMC, THE PURCHASING ACTIVITY ADMITS
THAT UMC WAS LOW IN PRICE FOR THE INITIAL QUANTITY OF ITEMS REQUIRED BUT
THAT IT WAS NOT LOW WHEN EVALUATED PURSUANT TO PARAGRAPH D-5. WITH
RESPECT TO THE ORDERING OF FOLLOW-ON ITEMS, IT IS POINTED OUT THAT THE
INITIAL AND FOLLOW-ON QUANTITIES ARE THE AMOUNTS WHICH CAN REASONABLY BE
EXPECTED TO BE ORDERED DURING THE TERM OF THE CONTRACT. THE PURCHASING
ACTIVITY FURTHER ADVISES THAT ALL BIDDERS COMPLIED WITH THE GOVERNMENT'S
REQUIRED DELIVERY SCHEDULE; THAT AN INTEREST FACTOR WAS NOT INCLUDED IN
THE SOLICITATION AS AN EVALUATION FACTOR; AND THAT STANDARDIZATION OF
EQUIPMENT WAS NOT A CONTEMPLATED OBJECTIVE OF THE PROCUREMENT. WITH
RESPECT TO ANY PREFERENCE UMC MAY HAVE BECAUSE OF ITS LOCATION IN LABOR
SURPLUS AREA, THE PURCHASING ACTIVITY NOTES THAT THE IFB DOES NOT
PROVIDE FOR A LABOR SURPLUS SET-ASIDE.
WE HAVE HELD THAT EVALUATION FACTORS SHOULD BE AS CLEAR, PRECISE AND
EXACT AS POSSIBLE AND SHOULD BE MADE KNOWN TO BIDDERS SO THAT THEY CAN
INTELLIGENTLY PREPARE THEIR BIDS. 36 COMP. GEN. 380, 385 (1956);
B-171023, DECEMBER 10, 1970. IT FOLLOWS THEN THAT A FACTOR WHICH IS
UNCERTAIN OR SPECULATIVE CANNOT BE USED FOR THE EVALUATION OF BIDS. SEE
43 COMP. GEN. 60 (1963). THE SAME IS TRUE OF FACTORS NOT STATED IN THE
SOLICITATION. THEREFORE, EVALUATION FACTORS FOR STANDARDIZATION,
TRANSPORTATION BY SHIP, AND INTEREST COSTS WHICH ARE NOT INCLUDED IN A
SOLICITATION PROVIDE NO BASIS TO DETERMINE THE MOST ADVANTAGEOUS BID,
PRICE AND OTHER FACTORS CONSIDERED. MOREOVER, AS TO INTEREST COSTS, WE
HAVE HELD THAT SUCH SAVINGS ARE TOO SPECULATIVE TO BE CONSIDERED AS AN
EVALUATION FACTOR. 35 COMP. GEN. 282 (1955); 43 ID., SUPRA.
NOR DOES IT APPEAR, UNDER THE CIRCUMSTANCES OF THIS PROCUREMENT, THAT
OUR OFFICE MAY QUESTION THE FAILURE OF THE CONTRACTING OFFICER TO
INCLUDE A FACTOR FOR TRANSPORTATION BY SHIP, OR FOR STANDARDIZATION,
EVEN ASSUMING SUCH FACTORS COULD BE ARGUED TO BE PROPERLY FOR
CONSIDERATION. OUR POSITION IN THIS REGARD IS SET OUT SUCCINCTLY IN THE
FOLLOWING LANGUAGE FROM OUR DECISION B-167785, DECEMBER 19, 1969:
"IT IS NOT WITHIN THE PROVINCE OF OUR OFFICE TO FORMULATE THE BASES
UPON WHICH BID PRICES PROPERLY WILL BE CONSIDERED AND EVALUATED UNDER
GIVEN INVITATIONS. THIS MATTER FALLS SQUARELY WITHIN THE FUNCTIONS OF
THE DEPARTMENTS AND AGENCIES CONCERNED, AND WHEN AN INVITATION LENDS
ITSELF TO OPEN COMPETITION AND IT IS SHOWN, WHEN CONSIDERING ALL OF THE
FACTS, THAT THE GOVERNMENT'S INTEREST IS FULLY PROTECTED, OUR OFFICE
WILL NOT INTERVENE. *** "
YOU ARE CORRECT IN YOUR OBSERVATION THAT THERE EXISTS A GOVERNMENT
POLICY TO AID CONCERNS LOCATED IN LABOR SURPLUS AREAS. HOWEVER, THE
DECISION TO SET ASIDE A PART OF A PROCUREMENT FOR LABOR SURPLUS AREA
CONCERNS IS WITHIN THE PROVINCE OF THE ADMINISTRATIVE AGENCY INVOLVED
PURSUANT TO THE APPLICABLE PROVISIONS OF THE ARMED SERVICES PROCUREMENT
REGULATION. SEE, IN THIS REGARD, B-170285, NOVEMBER 10, 1970, WHERE WE
HELD THAT THE APPLICABLE PROVISIONS OF THE REGULATION DO NOT MAKE IT
MANDATORY TO SET ASIDE A PORTION OF A PROCUREMENT FOR AWARD TO A LABOR
SURPLUS AREA CONCERN. SINCE NO PORTION OF THE PRESENT PROCUREMENT WAS
SO SET ASIDE, THE FACT THAT YOUR FIRM IS IN A LABOR SURPLUS AREA IS NOT
FOR CONSIDERATION IN EVALUATING YOUR BID.
THE PHRASE "AND OTHER FACTORS CONSIDERED" FOUND IN PARAGRAPH C-10(A)
MUST BE READ IN CONJUNCTION WITH PARAGRAPH D-5 SINCE THE LATTER
PROVISION EXPRESSLY REFERS TO THE FORMER. THE "OTHER FACTORS"
MENTIONED, THEREFORE, ARE ONLY THOSE APPEARING IN THE IFB. 36 COMP.
GEN., SUPRA. SINCE THERE IS NOTHING IN THE RECORD BEFORE US TO INDICATE
THAT THE QUANTITY ESTIMATES OF THE IFB WERE OTHER THAN THE PURCHASING
ACTIVITY'S BEST ESTIMATES OR THAT YOUR BID WAS EVALUATED IN A MANNER
OTHER THAN AS DIRECTED BY THE IFB, NO BASIS IS EVIDENT UPON WHICH WE MAY
SUSTAIN YOUR PROTEST. ACCORDINGLY, IT IS DENIED.
B-173644, AUG 5, 1971
BID PROTEST - AMBIGUOUS CLAUSE
DECISION TO THE SECRETARY OF AGRICULTURE THAT BILL SMITH WOOD
PRODUCTS, INC. (SMITH) IS NOT REQUIRED TO PAY FOR CERTAIN RIGHT-OF-WAY
TIMBER IN ADDITION TO PAYMENTS ALREADY DUE FOR PAYMENT UNITS INVOLVED IN
A TIMBER SALE IN THE CONECUH NATIONAL FOREST. SMITH CONTENDS THAT THEY
INTERPRETED THE CONTRACT TO INCLUDE THE RIGHT-OF-WAY TIMBER IN THE SALE
UNITS.
WHEN A GOVERNMENT CONTRACT IS AMBIGUOUS, THE AMBIGUITY WILL BE
RESOLVED AGAINST THE DRAFTER OF THE DOCUMENT IN FAVOR OF THE OTHER PARTY
IF THAT PARTY'S INTERPRETATION CAN REASONABLY BE SUSTAINED BY THE
CONTRACT. THE RECORD HERE INDICATES THAT SMITH'S INTERPRETATION WAS
REASONABLE, AND WAS SUPPORTED BY THE FACTS.
TO MR. SECRETARY:
REFERENCE IS MADE TO A LETTER DATED JULY 16, 1971, FROM THE DEPUTY
ASSISTANT SECRETARY REQUESTING OUR DECISION AS TO WHETHER BILL SMITH
WOOD PRODUCTS, INC. (SMITH), SHOULD BE REQUIRED TO PAY FOR CERTAIN
RIGHT-OF-WAY TIMBER IN ADDITION TO PAYMENTS ALREADY DUE FOR PAYMENT
UNITS INVOLVED IN A TIMBER SALE IN THE CONECUH NATIONAL FOREST.
IT WAS CONTEMPLATED BY THE FOREST SERVICE THAT THE TIMBER SALE WOULD
INVOLVE THE TIMBER WITHIN SEVEN PAYMENT UNITS. TIMBER WITHIN THESE
UNITS WAS MARKED FOR CUTTING WITH ONE OF THREE DIFFERENT COLORS OF PAINT
IN ORDER TO DISTINGUISH THE VARIOUS PAYMENT UNITS. TIMBER ALONG THE
RIGHT-OF-WAY OF TWO ROADS WHICH WERE TO BE BUILT, IN PART, THROUGH SOME
OF THE PAYMENT UNITS WAS NOT INTENDED TO BE INCLUDED IN THE SALE. THE
INTENT, CONTRARY TO USUAL SALE PROCEDURES, WAS TO SELL THIS TIMBER AT
LATER DATE TO THE TIMBER SALE PURCHASER, OR IF HE DECLINED TO BUY, TO
SOME OTHER INTERESTED BUYER. CONSEQUENTLY, THIS TIMBER, VALUED AT
APPROXIMATELY $5,000, WAS MARKED FOR CUTTING BUT IN A COLOR DIFFERENT
THAN THOSE USED IN THE PAYMENT UNITS.
AT BID OPENING, SMITH WAS THE HIGHEST BIDDER FOR THE SALE TIMBER WITH
AN OFFER OF $147,617.22, WHICH WAS APPROXIMATELY $18,500 MORE THAN THE
NEXT HIGHEST BIDDER. NOTICE OF AWARD WAS SENT TO SMITH ON MAY 28, 1971,
BUT LATER THAT SAME DAY IT BECAME APPARENT, DURING A CONVERSATION
BETWEEN BILL SMITH AND FOREST SERVICE REPRESENTATIVES, THAT THE SMITH
BID HAD BEEN BASED ON THE BELIEF THAT THE RIGHT-OF-WAY TIMBER WAS
INCLUDED IN THE SALE. THE FOREST SERVICE DOES NOT DISPUTE THE CONTENTION
THAT THE BID WAS, IN FACT, SUBMITTED ON SUCH A BASIS.
THE LIABILITY OF SMITH FOR ANY ADDITIONAL PAYMENT IS DEPENDENT UPON
AN INTERPRETATION OF THE TIMBER SALE CONTRACT. PART BT2.0 OF THE
CONTRACT STATES THAT TIMBER INCLUDED IN THE CONTRACT CONSISTS OF TREES
DESIGNATED FOR CUTTING; THAT ALL TIMBER WITHIN THE CLEARING BOUNDARIES
OF ROADS SHALL BE DESIGNATED FOR CUTTING; THAT SUCH TIMBER NEED NOT BE
WITHIN THE SALE AREA BOUNDARIES; AND THAT, CONTRARY TO THE ACTUAL FACTS
OF THIS CASE, SUCH TIMBER WAS TO BE DESIGNATED AFTER SALE ADVERTISEMENT.
IN ADDITION, SPECIFICATION ITEM 50, PARAGRAPH 3.2 STATES:
"TIMBER - TIMBER ON THE RIGHT-OF-WAY HAS BEEN INCLUDED IN THE VOLUMES
FOR THIS SALE.
"ALL MERCHANT SALE TIMBER HAS BEEN REMOVED FROM WITHIN THE
CONSTRUCTION LIMITS OF THE RIGHT-OF-WAY."
THESE LAST TWO SENTENCES ARE OBVIOUSLY IRRECONCILABLE AND THE FOREST
SERVICE TAKES THE POSITION THAT BOTH SHOULD HAVE BEEN STRICKEN FROM THE
CONTRACT IN VIEW OF THEIR OBJECTIVE OF SELLING THE RIGHT-OF-WAY TREES
AFTER THE PRESENT SALE WAS COMPLETED. SMITH, ON THE OTHER HAND,
CONTENDS THAT ONLY THE FIRST SENTENCE WAS APPLICABLE TO THE SALE SINCE
THE FACT THAT THE TREES STILL STOOD AND WERE DESIGNATED FOR CUTTING
PRECLUDED GIVING ANY WEIGHT TO THE SECOND SENTENCE. THE REASONABLENESS
OF SMITH'S POSITION IN THIS REGARD IS BOLSTERED BY THE RECORD BEFORE US
WHICH REFLECTS STATEMENTS BY THREE OTHER BIDDERS THAT THEY ALSO THOUGHT
THE RIGHT-OF-WAY TIMBER WAS INCLUDED IN THE SALE.
WHEN A GOVERNMENT CONTRACT IS AMBIGUOUS, THE AMBIGUITY WILL BE
RESOLVED AGAINST THE DRAFTER OF THE DOCUMENT IN FAVOR OF THE OTHER PARTY
IF THAT PARTY'S INTERPRETATION CAN REASONABLY BE SUSTAINED BY THE
CONTRACT. SEE MAX DRILL, INC. V UNITED STATES, 427 F. 2D 1233, 1240
(CT. CL. 1970). WE BELIEVE THAT A REASONABLE INTERPRETATION OF THE
CONTRACT SUPPORTS THE CONCLUSION THAT THE RIGHT-OF-WAY TIMBER WAS
INCLUDED IN THE PRESENT TIMBER SALE. THE AMBIGUITIES OF THE CONTRACT
THEN LOSE THEIR SIGNIFICANCE WHEN CONSIDERED IN THE CONTEXT OF FACTUAL
REALITIES AND THE ACTIONS OF THE FOREST SERVICE. WHATEVER WAS THE
ACTUAL INTENT OF THE GOVERNMENT WITH RESPECT TO THE DISPOSITION OF THE
TIMBER IN QUESTION, THE CONTRACT DID NOT CLEARLY CONVEY THAT INTENT.
WE CONCLUDE THAT THE RIGHT-OF-WAY TIMBER WAS INCLUDED IN THE TIMBER
SALE CONTRACT WITH SMITH AND
B-173672, AUG 5, 1971
CHANGE OF STATION - REAL ESTATE EXPENSES - REIMBURSEMENT OF
DISALLOWANCE OF CLAIM OF IRVIN J. ROSE FOR REIMBURSEMENT OF REAL
ESTATE EXPENSES INCURRED IN THE SALE OF A RESIDENCE IN PHILADELPHIA,
PA., INCIDENT TO A CHANGE OF STATION FROM HYATTSVILLE, MD., TO SAN
DIEGO, CALIF.
SECTION 4.1, OMB CIR. NO. A-56 PROVIDES THAT THE GOVERNMENT WILL
REIMBURSE AN EMPLOYEE FOR EXPENSES INCURRED IN THE SALE OF A RESIDENCE
AT HIS OLD OFFICIAL STATION PROVIDED THE DWELLING WAS THE EMPLOYEE'S
RESIDENCE AT THE TIME HE WAS NOTIFIED OF THE TRANSFER. SECTION 1.2I
DEFINES OFFICIAL STATION AS BEING THE RESIDENCE FROM WHICH THE EMPLOYEE
REGULARLY COMMUTES TO WORK. SINCE THE RECORD INDICATES THAT THE MEMBER
DID NOT COMMUTE TO WORK FROM PHILADELPHIA ON A DAILY BASIS, THE COMP.
GEN. CAN FIND NO BASIS FOR GRANTING THE REQUESTED REIMBURSEMENT.
TO MR. IRVIN J. ROSE:
YOUR LETTER OF JULY 14, 1971, TRANSMITTED A VOUCHER CLAIMING
REIMBURSEMENT OF $1,966.50 FOR REAL ESTATE EXPENSES INCURRED IN THE SALE
OF YOUR FORMER HOME IN PHILADELPHIA, PENNSYLVANIA, INCIDENT TO YOUR
TRANSFER FROM HYATTSVILLE, MARYLAND, TO SAN DIEGO, CALIFORNIA, AS AN
EMPLOYEE OF THE DEPARTMENT OF THE NAVY DURING 1970.
THE PAPERS SUBMITTED WITH YOUR CLAIM SHOW THAT IT HAS BEEN DISALLOWED
ADMINISTRATIVELY BY THE NAVAL SHIP ENGINEERING CENTER AS NOT COMING
WITHIN THE PROVISIONS OF THE APPLICABLE REGULATIONS, I.E., PARAGRAPH C
8350 OF THE JOINT TRAVEL REGULATIONS, AND TO THE SAME EFFECT SECTION 4
OF THE OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56.
YOU URGE THAT THE FACTS IN YOUR CASE JUSTIFY REIMBURSEMENT WITHIN THE
LAW AND REGULATIONS. YOU EXPLAIN THAT YOU WERE RECRUITED FROM THE
PHILADELPHIA AREA IN 1967 TO WORK FOR THE DEPARTMENT OF THE NAVY IN
WASHINGTON. THROUGHOUT THE NEXT 3 YEARS YOU POINT OUT THAT YOU
MAINTAINED YOUR PERMANENT RESIDENCE IN PHILADELPHIA IN ORDER TO ASSURE
THE COMPLETION OF YOUR SON'S MEDICAL TRAINING AND THAT YOU COMMUTED TO
PHILADELPHIA ON WEEKENDS.
UNDER THE PROVISIONS OF 5 U.S.C. 5724A REIMBURSEMENT OF CERTAIN
RELOCATION EXPENSES IS AUTHORIZED TO EMPLOYEES TRANSFERRED FROM ONE
OFFICIAL STATION TO ANOTHER, INCLUDING THE EXPENSES OF THE SALE OF THE
RESIDENCE AT THE OLD STATION. THE STATUTORY REGULATIONS IMPLEMENTING 5
U.S.C. 5724A WHICH WERE ISSUED EFFECTIVE JULY 21, 1966, ARE NOW
CONTAINED IN OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED
JUNE 26, 1969. IN PERTINENT PART SECTION 4.1 OF THOSE REGULATIONS
PROVIDES THAT THE GOVERNMENT WILL REIMBURSE AN EMPLOYEE FOR EXPENSES
REQUIRED TO BE PAID BY HIM IN CONNECTION WITH THE SALE OF ONE RESIDENCE
AT HIS OLD OFFICIAL STATION, PROVIDED THE DWELLING AT THE OLD OFFICIAL
STATION WAS THE EMPLOYEE'S RESIDENCE AT THE TIME HE WAS FIRST DEFINITELY
INFORMED THAT HE IS TO BE TRANSFERRED TO A NEW OFFICIAL STATION.
SECTION 1.2I OF CIRCULAR NO. A-56 PROVIDES THAT OFFICIAL STATION -
CONCERNING ENTITLEMENT TO EXPENSES RELATED TO SALE OF A RESIDENCE -
MEANS THE RESIDENCE OR OTHER QUARTERS FROM WHICH THE EMPLOYEE REGULARLY
COMMUTES TO AND FROM WORK, EXCEPT THAT IF THE OFFICIAL STATION IS IN A
REMOTE AREA WHERE ADEQUATE FAMILY HOUSING IS NOT AVAILABLE WITHIN
REASONABLE DAILY COMMUTING DISTANCE THEN RESIDENCE INCLUDES THE DWELLING
WHERE THE FAMILY OF THE EMPLOYEE RESIDES, BUT ONLY IF SUCH RESIDENCE
REASONABLY RELATES TO OFFICIAL STATION AS DETERMINED BY AN APPROPRIATE
ADMINISTRATIVE OFFICIAL. THE FOREGOING REGULATORY PROVISIONS ACCORD
WITH OUR RELATED DECISIONS. SEE 46 COMP. GEN. 703 (1967), 47 ID. 109
(1967).
SINCE YOU DID NOT COMMUTE ON A DAILY BASIS FROM PHILADELPHIA TO YOUR
DUTY STATION AND AS THE EXCEPTION REFERRED TO ABOVE DOES NOT OTHERWISE
APPLY, WE FIND NO BASIS FOR REGARDING YOUR HOME IN PHILADELPHIA AS BEING
YOUR RESIDENCE FOR THE PURPOSE OF BEING ENTITLED TO REIMBURSEMENT OF ANY
OF THE SELLING EXPENSES THEREOF IN CONNECTION WITH YOUR TRANSFER FROM
HYATTSVILLE, MARYLAND, TO SAN DIEGO, CALIFORNIA. ACCORDINGLY, YOUR
CLAIM IS FOR DISALLOWANCE.
B-172893, AUG 4, 1971
BID PROTEST - RESTRICTED COMPETITION - INADEQUATE SPECIFICATIONS
DECISION DENYING PROTEST AGAINST THE ALLEGED INSUFFICIENCY OF AN IFB
ISSUED BY THE ROCK ISLAND ARSENAL FOR THE PROCUREMENT OF A NUMBER OF
BARRELS FOR END USE IN THE M79 GRENADE LAUNCHER.
THE CONTENTION THAT THE OMISSION OF A PROGRESS PAYMENT CLAUSE IN THE
ORIGINAL IFB IS PREJUDICIAL TO SMALL BUSINESS FIRMS HAS BEEN MOOTED BY
THE INCLUSION OF SUCH A CLAUSE IN A FORTHCOMING AMENDMENT.
ALSO, THE ALLEGATION THAT THE INSPECTION PROCEDURES PERMIT THE
DISSEMINATION OF GRENADE LAUNCHERS WITH FLAWS IS WITHOUT MERIT
CONSIDERING THE PAST RECORD OF SUCCESSFUL PERFORMANCE OF 26,274 M79
LAUNCHER BARRELS AND 170,977 LAUNCHERS.
TO CITIZEN TAXPAYER PARTY:
REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 9, 1971, AND LETTERS OF MAY
18 AND JULY 12, 1971, IN PROTEST AGAINST INVITATION FOR BIDS (IFB)
DAAF01-71-B-0873, ISSUED BY THE ROCK ISLAND ARSENAL, ROCK ISLAND,
ILLINOIS.
THE REFERENCED IFB WAS ISSUED APRIL 26, 1971, FOR THE PROCUREMENT OF
2,975 BARRELS FOR END USE IN THE 40MM M79 (HN) GRENADE LAUNCHER, WITH
ONE ADDITIONAL UNIT FOR FIRST ARTICLE APPROVAL, AND A REQUIREMENT FOR
DATA. BID OPENING WAS SET FOR MAY 10, 1971.
ON MAY 3, 1971, AMENDMENT NO. DAAF01-71-B-0873-0001 WAS ISSUED TO
DECREASE THE QUANTITY TO 1,651 UNITS (INCLUDING ONE UNIT FOR FIRST
ARTICLE APPROVAL), REVISE THE DELIVERY SCHEDULE, AND TO EXTEND THE DATE
OF BID OPENING TO MAY 17, 1971. ALSO, THE QUANTITY OF
GOVERNMENT-FURNISHED AMMUNITION, FSN 1310-690-5761-B578, TO SUPPORT
CONTRACTUAL TEST REQUIREMENTS WAS REDUCED FROM 3500 TO 1825 ROUNDS.
ON MAY 7, 1971, THE CONTRACTING OFFICER WAS ADVISED BY THE RESEARCH
AND ENGINEERING DIRECTORATE THAT THE M79 GRENADE LAUNCHER BARREL DRAWING
7791569 WAS BEING REVISED AND HE WAS REQUESTED TO SUSPEND THE SUBJECT
IFB UNTIL REVISED MATERIAL WAS AVAILABLE.
BIDS WERE RETURNED UNOPENED ON MAY 11, 1971, AND AMENDMENT
DAAF01-71-B-0873-0002 WAS ISSUED ON THAT DATE EXTENDING BID OPENING TO
JULY 1, 1971, DUE TO ADMINISTRATIVE AND TECHNICAL PROBLEMS. IT IS
REPORTED THAT UPON RECEIPT OF THE REVISED MATERIAL A FURTHER AMENDMENT
TO THE SUBJECT IFB WILL BE ISSUED.
YOU CONTEND THAT THE OMISSION OF A PROGRESS PAYMENT CLAUSE IN THE
ORIGINAL IFB IS PREJUDICIAL TO SMALL BUSINESS FIRMS, WHICH WILL REQUIRE
FINANCIAL ASSISTANCE PRIOR TO FIRST DELIVERY, AND THEREBY RESTRICTS
COMPETITION.
YOU FURTHER ALLEGE THAT THE BID DOCUMENTS ARE INCOMPATIBLE WITH EACH
OTHER, AND WILL RESULT EITHER IN EXCESSIVE COSTS OR A DEFECTIVE PRODUCT
WHICH WOULD IMPERIL THE SAFETY OF TROOPS IN THE FIELD. IT IS
SPECIFICALLY CONTENDED IN SUCH RESPECT THAT PAGE 33 OF THE IFB
(GOVERNMENT FURNISHED PROPERTY) SPECIFIES HIGH PRESSURE AMMUNITION TO BE
USED FOR THE PROOF FIRING TEST BUT THAT SUPPLEMENTARY QUALITY ASSURANCE
PROVISION 7791569, AND DRAWING 7791569, SPECIFIED IN THE INSPECTION AND
ACCEPTANCE PROVISIONS OF THE IFB, REQUIRE THE USE OF STANDARD AMMUNITION
AND CARTRIDGE IN TESTING THE PRODUCT. CONSEQUENTLY, YOU IMPLY THAT IF A
CONTRACTOR RELIED ON THE NECESSITY OF USING HIGH PRESSURE AMMUNITION,
HIS PROOF FIRING COSTS WOULD BE HIGHER THAN HAD HE USED STANDARD
AMMUNITION. ON THE OTHER HAND, YOU SAY THAT IF A CONTRACTOR WERE TO BID
AT A LOWER COST ON THE BASIS OF USING STANDARD AMMUNITION, THE
INSPECTION PROCEDURES SPECIFIED IN THE IFB WOULD BE INADEQUATE TO
ELIMINATE GRENADE LAUNCHER BARRELS CONTAINING FLAWS WHICH ARE ACCEPTABLE
TO THOSE INSPECTION PROCEDURES, THEREBY PERMITTING SHIPMENT OF UNSAFE
BARRELS TO THE FIELD WHERE THEY WOULD ENDANGER THE SAFETY OF ARMED
FORCES PERSONNEL.
WITH REGARD TO YOUR FIRST CONTENTION, WE HAVE BEEN ADVISED BY THE
DEPARTMENT OF THE ARMY THAT A PROGRESS PAYMENT CLAUSE WILL BE INCLUDED
IN A FORTHCOMING AMENDMENT TO THE IFB. IN VIEW THEREOF, IT WOULD APPEAR
THAT THIS SEGMENT OF YOUR PROTEST REQUIRES NO FURTHER CONSIDERATION BY
OUR OFFICE.
IT APPEARS THAT YOU REGARDED THE GOVERNMENT-FURNISHED AMMUNITION FSN
1310-690-5761-B578, SHOWN ON PAGE 33 OF THE IFB, AS BEING HIGH PRESSURE
BECAUSE OF A PRIOR SOLICITATION IN WHICH THE AMMUNITION TO BE FURNISHED
FOR TESTING M79 GRENADE LAUNCHERS WAS DESCRIBED AS "HIGH PRESSURE TEST
AMMUNITION B578." WE HAVE BEEN APPRISED BY ARMY OFFICIALS THAT THE
AMMUNITION PERSONNEL AT THE PICATINNY ARSENAL REPORT THAT THE M79
GRENADE LAUNCHER AMMUNITION SPECIFIED ON PAGE 33 OF THE IFB IS NOT A
HIGH PRESSURE ROUND, BUT IS A 40MM ROUND, DESIGNATED M387, AND IS
CLASSIFIED AS A "STANDARD ROUND," CONTAINING THE SAME LOAD AS ALL OTHER
40MM ROUNDS. IT THEREFORE WOULD SEEM THAT THE PRIOR SOLICITATION WAS
INCORRECT IN REFERRING TO THE B578 AMMUNITION AS BEING HIGH PRESSURE.
IN VIEW THEREOF, WE MUST CONCLUDE THAT THERE IS NO DISPARITY BETWEEN
THE TYPE OF AMMUNITION SPECIFIED ON PAGE 33 OF THE IFB AND THE TYPE
REQUIRED FOR TESTING BY THE PERTINENT INSPECTION AND ACCEPTANCE
PROVISIONS OF THE INVITATION.
WHILE YOU ALLEGE THAT USE OF THE INSPECTION PROCEDURES SPECIFIED BY
THE IFB PERMITS THE DISSEMINATION TO THE FIELD OF GRENADE LAUNCHERS WITH
FLAWS WHICH ARE POTENTIALLY DANGEROUS TO OUR ARMED FORCES PERSONNEL, WE
HAVE BEEN ADVISED THAT THE GOVERNMENT HAS PROCURED APPROXIMATELY 26,274
M79 LAUNCHER BARRELS AND 170,977 LAUNCHERS, EXCLUSIVE OF SPARE PARTS,
AND THAT THERE IS NO KNOWN INSTANCE WHERE A BARREL MANUFACTURED TO
GOVERNMENT SPECIFICATIONS HAS IMPAIRED THE SAFETY OF THE WEAPON. IN ANY
EVENT, IT IS WELL ESTABLISHED THAT THE DRAFTING OF SPECIFICATIONS
ADEQUATE TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT IS THE PROPER
FUNCTION OF THE PROCURING AGENCY, AND THE AGENCY'S DECISION AS TO WHAT
WILL SATISFY ITS NEEDS IS NOT SUBJECT TO LEGAL OBJECTION BY OUR OFFICE.
49 COMP. GEN. 156, 160 (1969).
ACCORDINGLY, YOUR PROTEST MUST BE DENIED.
B-173551, AUG 4, 1971
CONTRACTS - MODIFICATION - INTANGIBLE BENEFITS
DECISION THAT A TIMBER SALE CONTRACT WITH PLUM CREEK LUMBER COMPANY
MAY BE MODIFIED TO INCLUDE ADEQUATE ENVIRONMENTAL SAFEGUARDS TO PROTECT
THE VALUES OF THE NATIONAL FORESTS.
WHILE IT WAS HELD IN B-168544, MARCH 12, 1970 THAT THERE MUST BE A
TANGIBLE BENEFIT, AMOUNTING TO ADEQUATE CONSIDERATION, ACCRUING TO THE
GOVERNMENT IN ORDER TO SUPPORT MODIFICATION OF A SALE CONTRACT FOR THE
BENEFIT OF THE PURCHASER, IN THE PRESENT CASE, MODIFICATION IS FOR THE
BENEFIT OF THE GOVERNMENT, AND ALTHOUGH INTANGIBLE, MAY PROPERLY
CONSTITUTE LEGAL CONSIDERATION FOR THE MODIFICATION.
TO MR. COWDEN:
REFERENCE IS MADE TO YOUR LETTER OF JULY 9, 1971, REQUESTING AN
ADVANCE DECISION ON THE PROPRIETY OF MODIFYING A TIMBER SALE CONTRACT
EXECUTED WITH PLUM CREEK LUMBER COMPANY FOR CERTAIN TIMBER LOCATED IN
THE BUNKER CREEK AREA OF THE FLATHEAD NATIONAL FOREST IN MONTANA.
YOU ADVISE THAT THE CONTRACT WAS AWARDED ON MARCH 13, 1969, AND THAT
THE SALE WILL TERMINATE ON OCTOBER 1, 1975. WHILE THE CONTRACT WAS
AWARDED AT A PRICE WHICH EXCEEDED THE ADVERTISED SALE VALUE BY $1.2
MILLION, YOU ADVISE THAT A SUBSEQUENT REVIEW OF THIS CONTRACT, AND OTHER
TIMBER SALES CONTRACTS IN THIS REGION, INDICATES THAT THE CONTRACTS DO
NOT INCLUDE ADEQUATE ENVIRONMENTAL SAFEGUARDS TO PROTECT THE VALUES OF
THE NATIONAL FORESTS. TO ILLUSTRATE, YOU INCLUDE A COPY OF A REPORT
ENTITLED "MANAGEMENT PRACTICES ON THE BITTERROOT NATIONAL FOREST," WHICH
DETAILS A NUMBER OF DEFICIENCIES FOUND BY A TASK FORCE OF SCIENTISTS AND
LAND MANAGERS IN THAT NATIONAL FOREST. SUCH DEFICIENCIES INCLUDE
PRACTICES KNOWN AS "CLEAR-CUTTING," AND "TERRACING" FOR RESTOCKING
PURPOSES.
THESE PRACTICES RESULT IN UNACCEPTABLE AESTHETIC DAMAGE, AND MAY ALSO
RESULT IN STREAM SILTATION AND EROSION CAUSED BY LOGGING DEBRIS AND/OR
CLEANUP OF DEBRIS. YOU ADVISE THAT PRACTICES WHICH MAY RESULT IN SUCH
DAMAGE ARE NOT PERMITTED ON TIMBER SALES PRESENTLY BEING DESIGNED UNDER
CRITERIA AIMED AT HIGH QUALITY MANAGEMENT OF THE NATIONAL FORESTS. YOU
THEREFORE PROPOSE TO MODIFY THE BUNKER CREEK SALE CONTRACT TO MINIMIZE
SUCH DAMAGE. BASICALLY, SUCH MODIFICATION WOULD REDUCE THE AMOUNT OF
PERMISSIBLE CLEAR-CUTTING, WHILE INCREASING THE AMOUNTS OF MODIFIED
CLEAR-CUT, OVERSTORY REMOVAL, SHELTERWOOD, AND INDIVIDUAL TREE
SELECTION. SUCH MODIFICATION WOULD REDUCE VOLUME OF THE SALE FROM
31,000 M TO 24,320 M, AND THUS REDUCE OVERALL REVENUE FROM THE SALE.
ADDITIONALLY, THE REDUCTION IN VOLUME AND CHANGE IN CUTTING METHODS WILL
INCREASE THE OPERATING COSTS TO THE CONTRACTOR, AND THE CONTRACTOR MAY
THEREFORE BE EXPECTED TO REQUEST REDUCED STUMPAGE RATES TO COMPENSATE
FOR SUCH INCREASED OPERATING COSTS.
YOU POINT OUT THAT A REDUCTION IN STUMPAGE RATES IS CONTRARY TO THE
WELL ESTABLISHED RULE OF YOUR DEPARTMENT THAT TIMBER SALE CONTRACTS
SHOULD NOT BE MODIFIED TO THE FINANCIAL DISADVANTAGE OF THE GOVERNMENT.
HOWEVER, IN THIS CASE YOU BELIEVE THE MONETARY LOSS TO BE MORE THAN
OFFSET BY REDUCTIONS IN RESOURCE AND ENVIRONMENTAL DAMAGE, EVEN THOUGH
SUCH REDUCTIONS CANNOT BE QUANTIFIED. YOU THEREFORE REQUEST OUR OPINION
AS TO WHETHER SUCH INTANGIBLE BENEFITS TO THE GOVERNMENT, IN THIS AND
POSSIBLY IN OTHER SIMILAR CONTRACTS, CAN BE CONSIDERED AS ADEQUATE
COMPENSATION TO SUPPORT THE DECREASE IN REVENUE RESULTING FROM THE
PROPOSED MODIFICATIONS IN CUTTING AND RESTOCKING PROCEDURES.
YOUR DOUBT AS TO THE PROPRIETY OF SUCH MODIFICATION APPARENTLY
ARISES, AT LEAST IN PART, FROM PREVIOUS DECISIONS OF THIS OFFICE (E.G.,
B-168544, MARCH 12, 1970) ADVISING THAT THERE MUST BE A TANGIBLE
BENEFIT, AMOUNTING TO ADEQUATE CONSIDERATION, ACCRUING TO THE GOVERNMENT
IN ORDER TO SUPPORT MODIFICATION OF A SALE CONTRACT FOR THE BENEFIT OF
THE PURCHASER. IN THE INSTANT CASE, HOWEVER, IT IS APPARENT THAT
MODIFICATION OF THE CONTRACT IS, IN THE FIRST INSTANCE, FOR THE BENEFIT
OF THE GOVERNMENT, RATHER THAN FOR THE BENEFIT OF THE CONTRACTOR. UNDER
SUCH CIRCUMSTANCES, IT IS OUR OPINION THAT THE BENEFIT TO THE
GOVERNMENT, WHETHER IT BE TANGIBLE OR INTANGIBLE, MAY PROPERLY
CONSTITUTE LEGAL CONSIDERATION FOR THE MODIFICATION.
IN THIS CONNECTION, WE NOTE THAT THE STANDARD PROVISIONS OF THE
CONTRACT PROVIDE, IN PERTINENT PART, AS FOLLOWS:
"B8.31 COMPLETENESS AND MODIFICATION. *** THIS CONTRACT CAN BE
MODIFIED ONLY BY WRITTEN AGREEMENT OF THE PARTIES, EXCEPT AS PROVIDED
UNDER B8.32. FOREST SERVICE AGREES THAT UPON REQUEST BY PURCHASER THIS
CONTRACT SHALL BE MODIFIED TO PROVIDE FOR THE EXERCISE OF ANY AUTHORITY
HEREAFTER GRANTED BY LAW, OR REGULATION OF THE SECRETARY OF AGRICULTURE
IF SUCH AUTHORITY IS THEN GENERALLY BEING APPLIED TO FOREST SERVICE
TIMBER SALE CONTRACTS. ANY OTHER CONTRACTUAL PROVISION IN GENERAL USE
BY FOREST SERVICE, TOGETHER WITH COMPENSATING ADJUSTMENTS, MAY BE
INSERTED HEREIN BY AGREEMENT.
"B8.32 MODIFICATION UPON RATE REDETERMINATION. IN SCHEDULED RATE
REDETERMINATIONS, FOREST SERVICE MAY MAKE MODIFICATIONS IN MINIMUM
SPECIFICATIONS FOR TREES OR PRODUCTS IN TABLE 1, FIRE PRECAUTIONARY
MEASURES IN C7.21, SLASH DISPOSAL IN C6.7, LOGGING METHODS IN C6.4, AND
ROAD MAINTENANCE REQUIREMENTS IN C5.4, IF SUCH CHANGES ARE REASONABLY
NECESSARY TO PROTECT THE INTEREST OF THE UNITED STATES. SUCH
MODIFICATION SHALL BE LIMITED TO REQUIREMENTS GENERALLY BEING MADE IN
FOREST SERVICE TIMBER SALE CONTRACTS IN THE REGION AT THE TIME OF RATE
REDETERMINATION AND WHICH CAN REASONABLY BE COMPLIED WITH BY PURCHASER.
SUCH CHANGES SHALL BE REFLECTED IN THE PRODUCTION COSTS OF THE RATE
REDETERMINATION."
UNDER THESE PROVISIONS, IT IS APPARENT THAT THE SUGGESTED
MODIFICATION WOULD BE APPROPRIATE UNDER B8.32 AT THE TIME OF RATE
REDETERMINATION, AND WE SEE NO REASON WHY, BY AGREEMENT OF THE PARTIES,
THE SAME MODIFICATION SHOULD NOT BE ACCOMPLISHED UNDER B8.31 PRIOR TO
RATE REDETERMINATION.
IN VIEW OF THE FOREGOING, WE CONCLUDE THAT THE CONTRACT MAY, BY
MUTUAL AGREEMENT WITH THE PURCHASER, BE PROPERLY MODIFIED IN THE MANNER
OUTLINED IN YOUR LETTER OF JULY 9. ANY SUCH MODIFICATION SHOULD BE
COMPLETELY DOCUMENTED TO SHOW THAT CONCESSIONS BY THE GOVERNMENT ARE
REASONABLY RELATED TO, AND JUSTIFIED BY, INCREASED COST OF OPERATION TO
THE PURCHASER, AND A COPY OF THIS DECISION SHOULD BE ATTACHED TO THE
MODIFICATION.
B-167158, AUG 3, 1971
TRANSPORTATION COSTS - EXCESS CHARGES - REFUND SOUGHT
DECISION DENYING REQUEST BY CAMPBELL "66" EXPRESS, INC. FOR RETURN OF
$257.40, AN EXCESS CHARGE ERRONEOUSLY REFUNDED INCIDENT TO THE SHIPMENT
OF A PASSENGER AUTOMOBILE UNDER A GBL.
WHILE CLAIMANT PAID $257.40 UNDER GBL D-3185009 RATHER THAN $267.22
UNDER GBL E-6946332, BOTH OF WHICH COVERED A PASSENGER AUTO SUBJECT TO
AN EXCEPTIONS TARIFF MINIMUM WEIGHT, THE COMP. GEN. DOES NOT BELIEVE IT
WOULD BE PROPER TO REFUND THE MONEY WHICH HAS BEEN DEPOSITED IN THE
TREASURY AS A VOLUNTARY SETTLEMENT MADE UNDER SECTION 22 OF THE
INTERSTATE COMMERCE ACT.
HOWEVER, GAO WILL POSTPONE FURTHER ACTION ON THE $267.22 CASE PENDING
THE OUTCOME OF CASES PRESENTLY BEFORE THE I.C.C.
TO CAMPBELL "66" EXPRESS, INC.:
PLEASE REFER TO YOUR LETTER OF MARCH 11, 1971, WITH ENCLOSURE, WHICH
WAS IN RESPONSE TO OUR LETTER OF FEBRUARY 1, 1971, CONCERNING THE
ADJUSTMENT OF AN EXCESS CHARGE OF $267.22 ON A SHIPMENT OF A PASSENGER
AUTOMOBILE TRANSPORTED FROM NEW ORLEANS, LOUISIANA, TO ST. LOUIS,
MISSOURI, UNDER GOVERNMENT BILL OF LADING (GBL) E-6946332, DATED MARCH
25, 1969.
YOU INDICATE THAT YOU ERRED IN REFUNDING AN EXCESS CHARGE OF $257.40
UNDER GBL D-3185009, DATED MARCH 15, 1968, WHICH ALSO COVERED A
PASSENGER AUTOMOBILE SUBJECT TO AN EXCEPTIONS TARIFF MINIMUM WEIGHT OF
6,000 POUNDS, AS COMPARED TO THE ACTUAL WEIGHT OF 1,500 POUNDS
AUTHORIZED IN NATIONAL MOTOR FREIGHT CLASSIFICATION A-9. YOU SAY THAT
YOU ARE HOLDING IN ABEYANCE ANY FURTHER ACTION ON THE CLAIM OF $267.22
IN CONNECTION WITH GBL E-6946332. YOUR ACTION IS BEING TAKEN PENDING
THE OUTCOME OF INTERSTATE COMMERCE COMMISSION DOCKET NO. 35293, UNITED
STATES V CENTRAL TRUCK LINES, DOCKET NO. 35367, UNITED STATES V NAVAJO
FREIGHT LINES, INC., ET AL. INVOLVING THE REASONABLENESS OF FREIGHT
CHARGES BASED ON THE EXCEPTIONS TARIFF MINIMUM WEIGHT OF 6,000 POUNDS ON
PASSENGER AUTOMOBILES, AND THE PROPOSED NATIONAL MOTOR FREIGHT
CLASSIFICATION AMENDMENT TO INCREASE THE RATINGS ON PASSENGER
AUTOMOBILES IN ITEM 190210-A OF CLASSIFICATION A-11.
YOU SUBMIT A BALANCE DUE BILL FOR $257.40, THE AMOUNT OF YOUR REFUND
CHECK NO. 9736, DATED MAY 26, 1970, FOR RECOVERY OF THAT AMOUNT. AS
INDICATED, THE REFUND WAS MADE IN CONNECTION WITH THE CHARGES PAID ON
THE LESS-THAN-TRUCKLOAD AUTOMOBILE SHIPMENT UNDER GBL D-3185009,
COMPUTED ON THE EXCEPTIONS BASIS OF 6,000-POUND MINIMUM WEIGHT AT A
CLASS 150 RATING.
WHILE WE AGREE THAT THE ISSUE OF LESS-THAN-TRUCKLOAD RATINGS ON
PASSENGER AUTOMOBILES IS PENDING IN THE INTERSTATE COMMERCE COMMISSION
PROCEEDINGS, THEY WILL NOT NECESSARILY BE CONTROLLING ON THE ISSUE
CONCERNING THE REASONABLENESS OF CHARGES BASED ON THE 6,000-POUND BASIS
IN OTHER PROCEEDINGS.
YOUR REFUND OF $257.40 WAS MADE UNDER THE AUTHORITY OF SECTIONS 22
AND 217(B) OF THE INTERSTATE COMMERCE ACT MORE THAN TEN MONTHS BEFORE
YOU DECIDED IT WAS MADE IN ERROR. WE HAVE NOT CHANGED OUR POSITION AS
TO THE UNREASONABLENESS OF THE 6,000-POUND MINIMUM WEIGHT REQUIREMENT,
AND WE DO NOT BELIEVE IT WOULD BE PROPER TO REFUND THE $257.40 WHICH HAS
BEEN DEPOSITED IN THE TREASURY AS A VOLUNTARY SETTLEMENT MADE UNDER
SECTION 22.
AS TO THE PROPRIETY OF OUR POSITION ON THE ISSUE RELATIVE TO THE
UNREASONABLENESS OF CHARGES BASED ON THE 6,000-POUND MINIMUM WEIGHT, WE
INVITE ATTENTION TO A RECOMMENDED REPORT AND ORDER SERVED JULY 15, 1971,
IN UNITED STATES V RYDER TRUCK LINES, INC. ET AL., INTERSTATE COMMERCE
COMMISSION DOCKET NO. 35332. IN THAT CASE HEARING EXAMINER ROBERT M.
GLENNON, FOUND THAT CHARGES COLLECTED ON THE 6,000-POUND MINIMUM WEIGHT
BASIS FOR TWO SHIPMENTS OF PASSENGER AUTOMOBILES WERE UNJUST AND
UNREASONABLE TO THE EXTENT THEY EXCEEDED CHARGES COMPUTED AT THE
CLASSIFICATION BASIS, USING THE ACTUAL WEIGHTS OF THE AUTOMOBILES.
IN VIEW OF THE RELATIVELY SMALL AMOUNT ($267.22) INVOLVED IN
CONNECTION WITH GBL E-6946332, WE WILL POSTPONE FURTHER ACTION ON THAT
ITEM PENDING DEVELOPMENTS IN THE SEVERAL COMMISSION CASES INVOLVING THE
REASONABLENESS OF THE 6,000-POUND MINIMUM WEIGHT ON PASSENGER
AUTOMOBILES, UNLESS THE BEST INTERESTS OF THE UNITED STATES JUSTIFY A
DIFFERENT COURSE OF ACTION.
B-169522, AUG 3, 1971
MILITARY PERSONNEL - FAMILY SEPARATION ALLOWANCE - ENTITLEMENT
DECISION SUSTAINING DECISION B-169522, JUNE 22, 1970, WHICH DENIED
SERGEANT MAJOR BENJAMIN F. SEAGO'S CLAIM FOR PAYMENT OF A FAMILY
SEPARATION ALLOWANCE FOR HIS DAUGHTER.
THE AMENDMENT OF TITLE 37, U.S.C., THE GOVERNING LAW REGARDING
PAYMENT OF THIS ALLOWANCE, DATED DECEMBER 7, 1970, DOES NOT ALTER THE
CIRCUMSTANCES IN THE CASE SO AS TO PRODUCE A DIFFERENT RESULT.
AS THE CHILD WAS IN THE LEGAL CUSTODY OF CLAIMANT'S FORMER WIFE
DURING THE PERIOD IN QUESTION, SHE COULD NOT HAVE RESIDED WITH CLAIMANT
IN ANY CASE, WHICH IS A PREREQUISITE TO ENTITLEMENT.
TO SERGEANT MAJOR BENJAMIN F. SEAGO:
WE REFER FURTHER TO YOUR LETTER DATED MARCH 15, 1971, IN WHICH YOU
REQUEST RECONSIDERATION OF DECISION B-169522, JUNE 22, 1970 (49 COMP.
GEN. 867), WHICH HELD THAT YOU WERE NOT ENTITLED TO FAMILY SEPARATION
ALLOWANCES, TYPE I OR TYPE II, FOR THE PERIOD FROM SEPTEMBER 27 THROUGH
DECEMBER 31, 1969, AND THAT PAYMENTS OF THESE ALLOWANCES BASED ON
SEPARATION FROM YOUR CHILD SUBSEQUENT TO THE DIVORCE DECREE WHICH
AWARDED HER CUSTODY TO YOUR FORMER WIFE, WERE ERRONEOUS AND SHOULD BE
RECOVERED.
YOU REFER TO PARAGRAPH 30303A OF THE DEPARTMENT OF DEFENSE MILITARY
PAY AND ALLOWANCES ENTITLEMENTS MANUAL AS PROVIDING AUTHORITY FOR THE
PAYMENT OF FAMILY SEPARATION ALLOWANCE, TYPE I, WHERE DEPENDENTS,
INCLUDING A DEPENDENT CHILD IN THE CUSTODY OF A FORMER WIFE, DO NOT LIVE
AT OR NEAR A MEMBER'S PERMANENT DUTY STATION.
PARAGRAPH 30303 OF THE MANUAL (CHANGE 8, DECEMBER 20, 1968), AS WELL
AS TABLE 3-3-1, DOES NOT REFLECT OUR DECISION B-161781, AUGUST 9, 1967,
CITED IN DECISION B-169522, JUNE 22, 1970, WHICH HELD THAT A MEMBER MUST
BE SEPARATED FROM A DEPENDENT AS A RESULT OF MILITARY ORDERS AND THAT
THE SEPARATION RESULTING FROM A DIVORCE DECREE GRANTING CUSTODY OF A
MEMBER'S CHILD TO HIS DIVORCED WIFE DOES NOT MEET THIS REQUIREMENT.
HOWEVER, THE FACT THAT THE MANUAL DOES NOT INCORPORATE THE HOLDING IN
DECISION B-161781, SUPRA, PROVIDES NO LEGAL AUTHORITY FOR PAYMENT OF
THIS ALLOWANCE WHICH IS NOT AUTHORIZED UNDER THE BASIC LAW, 37 U.S.C.
427(A), WHICH IS CONTROLLING.
IN YOUR LETTER YOU SAY THAT SINCE AT THE TIME OF YOUR ASSIGNMENT ON
AN "ALL OTHERS" TOUR TO EUROPE, EFFECTIVE AUGUST 1, 1967, SEPARATION
FROM YOUR DEPENDENTS RESULTED FROM MILITARY ORDERS, THE GRANTING OF A
DIVORCE OVER A YEAR LATER IN NO WAY CHANGED THE CIRCUMSTANCES AS YOUR
INITIAL SEPARATION WAS AS A RESULT OF SUCH ORDERS.
IN ADDITION, YOU SAY THAT YOUR DAUGHTER REACHED AGE 18 SHORTLY BEFORE
YOUR DIVORCE BECAME FINAL, AND THAT UNDER GEORGIA LAW SHE WAS CONSIDERED
AN ADULT AND THEREFORE NO LONGER SUBJECT TO PARENTAL CONTROL AND
SUPERVISION. YOU ALSO SAY THAT SINCE THE DIVORCE YOUR DAUGHTER HAS NOT
LIVED WITH YOUR FORMER WIFE, BUT THAT SHE HAS ATTENDED A COLLEGE AND
RESIDED THERE. AS YOU SAY YOU HAVE PROVIDED YOUR DAUGHTER'S FINANCIAL
SUPPORT DURING THIS PERIOD, YOU ARE OF THE OPINION THAT WHILE ATTENDING
COLLEGE SHE IS SUBJECT TO YOUR MANAGEMENT AND CONTROL.
THE CODE OF GEORGIA PROVIDES THAT THE AGE OF LEGAL MAJORITY IN THAT
STATE IS 21 YEARS; UNTIL THAT AGE ALL PERSONS ARE MINORS (SEC. 74-104,
GA. CODE ANN.). WHILE GEORGIA LAW PERMITS AN OTHERWISE QUALIFIED MINOR
AGE 18 OR OLDER TO REGISTER AND VOTE IN ELECTIONS (SEC. 2-702, GA. CODE
ANN.), THIS DOES NOT SERVE TO LOWER THE AGE OF LEGAL MAJORITY FROM 21 TO
18 YEARS. HOWEVER, A PARENT IS NO LONGER UNDER A LEGAL OBLIGATION TO
SUPPORT A CHILD WHO MARRIES. 17 S.E. 2D 607.
THE CODE FURTHER PROVIDES GENERALLY THAT IN CASES OF DIVORCE GRANTED,
THE PARTY NOT IN DEFAULT SHALL BE ENTITLED TO THE CUSTODY OF THE MINOR
CHILDREN OF THE MARRIAGE (SEC. 30-127, GA. CODE ANN.). IT APPEARS THAT
IN ACCORDANCE WITH THE PROVISIONS OF LAW CITED ABOVE, YOUR FORMER WIFE
WAS AWARDED CUSTODY OF YOUR DAUGHTER DURING HER MINORITY. BY VIRTUE OF
THE DECREE YOU WERE ORDERED TO MAKE PAYMENTS FOR THE SUPPORT OF YOUR
CHILD AND ALLOWED VISITATION RIGHTS. THEREFORE, WHILE YOU MAY HAVE
SUPPORTED YOUR DAUGHTER WHILE SHE HAS ATTENDED COLLEGE, YOU APPARENTLY
ARE NOT ENTITLED TO HER CUSTODY WHILE SHE IS A MINOR.
IN VIEW OF THE ABOVE IT IS CLEAR THAT SEPARATION FROM YOUR DAUGHTER
AFTER YOUR DIVORCE DID NOT RESULT FROM YOUR MILITARY ASSIGNMENT BUT FROM
THE COURT DECREE. IT FOLLOWS THAT THE COMMENCEMENT OF YOUR "ALL OTHERS"
TOUR IN EUROPE PRIOR TO THE DIVORCE AFFORDS NO BASIS FOR SUBSEQUENT
ENTITLEMENT, WHEN REGARDLESS OF THE AVAILABILITY OF GOVERNMENT HOUSING,
YOUR CHILD WAS NOT PERMITTED TO RESIDE WITH YOU BY TERMS OF THE DECREE
OF DIVORCE. SIMILARLY, YOUR CONTINUED FINANCIAL SUPPORT OF YOUR
DAUGHTER IN OBEDIENCE TO THE DECREE, DOES NOT AFFORD YOU ANY RIGHT TO
HER CUSTODY AND YOUR SEPARATION IS NOT BY REASON OF YOUR DUTY
ASSIGNMENT.
IN REGARD TO FAMILY SEPARATION ALLOWANCE, TYPE II, YOU REFER TO AN
ARTICLE YOU HAVE READ TO THE EFFECT THAT A DECISION RENDERED BY THIS
OFFICE IN DECEMBER 1968, HAD BEEN "REVERSED" BY THE CONGRESS SO THAT A
SERVICE MEMBER NO LONGER IS REQUIRED TO MAINTAIN FOR HIS DEPENDENTS A
HOUSEHOLD WHICH IS SUBJECT TO HIS MANAGEMENT AND CONTROL. YOU BELIEVE
THAT THE EFFECT OF THIS ACTION IS TO PERMIT PAYMENT OF THIS ALLOWANCE TO
YOU.
IT APPEARS THAT YOU REFER TO PUBLIC LAW 91-529, DATED DECEMBER 7,
1970, 84 STAT. 1389, WHICH PROVIDES AS FOLLOWS:
" *** THAT SECTION 427(B) OF TITLE 37, UNITED STATES CODE, IS AMENDED
BY ADDING THE FOLLOWING SENTENCE AT THE END THEREOF: 'AN ALLOWANCE IS
PAYABLE UNDER THIS SUBSECTION EVEN THOUGH THE MEMBER DOES NOT MAINTAIN
FOR HIS PRIMARY DEPENDENTS WHO WOULD OTHERWISE NORMALLY RESIDE WITH HIM,
A RESIDENCE OR HOUSEHOLD, SUBJECT TO HIS MANAGEMENT AND CONTROL, WHICH
HE IS LIKELY TO SHARE WITH THEM AS A COMMON HOUSEHOLD WHEN HIS DUTY
ASSIGNMENT PERMITS.'
"SEC. 2. SECTION 1 OF THIS ACT IS EFFECTIVE OCTOBER 1, 1963."
THE PURPOSE OF THIS BILL WAS TO PROVIDE ENTITLEMENT TO THE MONTHLY
$30 ALLOWANCE UNDER SECTION 427(B) (FAMILY SEPARATION ALLOWANCE, TYPE
II) IN CERTAIN CASES IN WHICH WE HAD HELD (DECISION B-157486, FEBRUARY
9, 1968), THAT THE ALLOWANCE WAS NOT AUTHORIZED BECAUSE THE MEMBER DID
NOT MAINTAIN A RESIDENCE FOR HIS DEPENDENTS SUBJECT TO HIS MANAGEMENT
AND CONTROL.
THE AMENDMENT IS APPLICABLE ONLY IN THE CASE OF "PRIMARY DEPENDENTS
WHO WOULD OTHERWISE NORMALLY RESIDE WITH" THE MEMBER, THE PURPOSE OF
SUCH LANGUAGE BEING TO EXCLUDE FROM COVERAGE MEMBERS WITH LEGALLY
SEPARATED SPOUSES, CHILDREN IN THE CUSTODY OF ANOTHER PERSON, ETC. SEE
PAGE 6, SENATE REPORT NO. 91-1346, 91ST CONGRESS, 2D SESSION, TO
ACCOMPANY H.R. 110, WHICH WAS ENACTED AS PUBLIC LAW 91-529.
THUS, THE AMENDMENT OF DECEMBER 7, 1970, IS NOT FOR APPLICATION IN
YOUR CIRCUMSTANCES, AS YOUR CHILD WAS IN YOUR FORMER WIFE'S LEGAL
CUSTODY DURING THE PERIOD IN QUESTION AND WOULD NOT HAVE RESIDED WITH
YOU IF YOU HAD NOT BEEN ASSIGNED OVERSEAS.
AS YOU ARE NOT ENTITLED TO BE PAID EITHER FAMILY SEPARATION
ALLOWANCE, TYPE I OR TYPE II, DURING THE PERIOD SUBSEQUENT TO YOUR
DIVORCE, THE DECISION OF JUNE 22, 1970, IS AFFIRMED.
B-172011, AUG 3, 1971
BID PROTEST - TRANSPORTATION CHARGES - IDENTICAL BIDS
DENIAL OF PROTEST BY THE ELLINOR CORPORATION AGAINST THE AWARD OF A
CONTRACT TO THE PANEL CORPORATION OF AMERICA (PANCOA) FOR AIRCRAFT TOW
TARGETS UNDER AN IFB ISSUED BY THE OGDEN AIR MATERIEL AREA. PROTESTANT
AND PANCOA SUBMITTED IDENTICAL BIDS, AND AWARD WAS MADE TO PANCOA BASED
ON LOWER TRANSPORTATION COSTS FROM DENVER, COLORADO TO NEW YORK, NY.
RATHER THAN FROM DALLAS, TEXAS.
THE COMP. GEN. HAS DETERMINED THAT THE CONTRACTING ACTIVITY APPLIED
THE PROPER TRANSPORTATION RATE TABLES IN THE CORRECT MANNER, AND
CONSEQUENTLY THERE IS NO BASIS FOR DISTURBING THE AWARD.
TO THE ELLINOR CORPORATION:
REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 24, 1971, WITH
ENCLOSURES, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE AWARD OF A
CONTRACT ON DECEMBER 29, 1970, TO THE PANEL CORPORATION OF AMERICA
(PANCOA) UNDER INVITATION FOR BIDS (IFB) NO. F42600-71-B-1201, ISSUED
BY THE DIRECTORATE OF PROCUREMENT & PRODUCTION, OGDEN AIR MATERIEL AREA,
HILL AIR FORCE BASE, UTAH. WE ARE ALSO IN RECEIPT OF A COPY OF YOUR
LETTER OF APRIL 26, 1971, TO THE DEPARTMENT OF THE AIR FORCE REGARDING
THIS MATTER.
THE SUBJECT INVITATION WAS ISSUED ON OCTOBER 21, 1970, AND REQUESTED
BIDS ON AN F.O.B. ORIGIN BASIS FOR FURNISHING 146 TOW TARGETS. THE
INVITATION ADVISED BIDDERS THAT FOR THE PURPOSE OF EVALUATING BIDS AND
FOR NO OTHER PURPOSE, THE FINAL DESTINATION FOR THE SUPPLIES WOULD BE
CONSIDERED TO BE NEW YORK, NEW YORK..
BIDS WERE OPENED ON NOVEMBER 20, 1970, AND PANCOA AND YOUR FIRM, THE
ONLY SOURCES RESPONDING, SUBMITTED IDENTICAL BIDS OF $21,024 FOR THE
ITEMS. YOU OFFERED THE ITEMS F.O.B. YOUR PLANT DALLAS, TEXAS, WHILE
PANCOA OFFERED THE ITEMS F.O.B. ITS PLANT DENVER, COLORADO. THEREFORE,
TRANSPORTATION CHARGES TO THE ABOVE-MENTIONED FINAL DESTINATION BECAME
THE DETERMINING FACTOR IN ARRIVING AT THE OVERALL EVALUATED LOW BID. THE
TRAFFIC MANAGEMENT SPECIALIST AT THE PROCURING ACTIVITY DETERMINED THAT
THE TRANSPORTATION COSTS APPLICABLE TO THE PANCOA BID WERE APPROXIMATELY
$50 LESS THAN THOSE APPLICABLE TO YOUR BID, AND ACCORDINGLY, AWARD WAS
MADE TO PANCOA.
THEREAFTER, YOU FILED A POSTAWARD PROTEST WITH THE AIR FORCE,
MAINTAINING GENERALLY THAT THE FREIGHT RATE FROM DALLAS TO NEW YORK WAS
LESS THAN THE FREIGHT RATE FROM DENVER TO NEW YORK. IN RESPONSE, THE
AIR FORCE ADVISED YOU IN A LETTER DATED JANUARY 22, 1971, THAT THE
FREIGHT RATES APPLICABLE TO TWO TRUCKLOADS OF MILITARY TARGETS (23,160
POUNDS AND 19,107 POUNDS OVERFLOW) FROM DENVER, COLORADO, TO NEW YORK
WERE LESS THAN THOSE FROM DALLAS TO NEW YORK. THE AIR FORCE'S
INTERPRETATION OF THE APPLICABLE TARIFFS AND THE LAWFUL RATES AND
MINIMUM WEIGHTS TO APPLY ON NOVEMBER 20, 1970, IS AS FOLLOWS:
"COLUMN 50 - $3.74 MIN. 16,000 LBS.
"TARIFF AUTHORITY: STRICKLAND TRANSPORTATION COMPANY TENDER
MF-ICC 319
ECMCA TARIFF 32-F, SECTION 5, SUPP. 8
RATE BASE 1644.
"DALLAS, TEXAS
23,160 POUNDS @ 3.74 M/16 = $ 866.18
19,107 POUNDS @ 3.74 = $ 714.60
$1,580.78
"DENVER, COLORADO
23,160 POUNDS @ 3.67 M/20 = $ 849.97
19,107 POUNDS @ 3.67 OVERFLOW = 701.23
$1,551.20"
IN YOUR LETTER OF FEBRUARY 19, 1971, YOU REFER TO THE STRICKLAND
TRANSPORTATION COMPANY, TENDER ICC 319, WHICH YOU CONTEND WOULD PRODUCE
TOTAL TRANSPORTATION CHARGES FROM DALLAS OF $1,467.04, AS OF JANUARY
1971, OR $1,422.62, ON NOVEMBER 20, 1970, THE DATE OF BID OPENING. BOTH
OF THESE FIGURES ARE LOWER THAN THE $1,551.20 QUOTED AS APPLICABLE FROM
DENVER IN THE AIR FORCE LETTER OF JANUARY 22, 1971, AND ALSO THE
$1,699.12 WHICH YOU STATED HAD BEEN PROVIDED BY HILL AIR FORCE BASE IN A
TELEPHONE CONVERSATION ON FEBRUARY 5, 1971. IN RESPONSE TO YOUR REQUEST
FOR REVIEW, WE REQUESTED OUR TRANSPORTATION DIVISION TO CALCULATE THE
APPLICABLE TRANSPORTATION CHARGES IN LIGHT OF THE CONTENTIONS RAISED IN
YOUR CORRESPONDENCE. OUR TRANSPORTATION DIVISION ADVISES THAT:
"THE TOW TARGETS WERE PACKED TWO PER CRATE, EACH CRATE WEIGHING 579
POUNDS. THEREFORE, THE COMPLETE SHIPMENT OF THE PROCUREMENT WOULD
CONSIST OF 73 CRATES, WEIGHING 42,267 POUNDS. INFORMATION IN THE FILE
INDICATES THAT 40 OF THESE CRATES COULD BE LOADED ON A 40 FOOT TRUCK,
WITH DIMENSIONS 192 INCHES BY 48 INCHES BY 10 INCHES FOR EACH CRATE,
STACKED 10 HIGH. THE APPLICABLE FREIGHT CLASSIFICATION IS MILITARY
AERIAL TOW TARGETS, KNOCKED DOWN, NATIONAL MOTOR FREIGHT CLASSIFICATION
ITEM 181950.
"WE FIND THE LOWEST TRANSPORTATION CHARGES FROM DALLAS TO NEW YORK
WITH THE GIVEN DATA TO BE AS FOLLOWS:
FIRST VEHICLE 23,160 AS 25,000 POUNDS @ $3.46 - $ 865.00
OVERFLOW 19,107 POUNDS @ 3.46 - 661.10
PIER DELIVERY 42,267 POUNDS @ .32 - 135.25
TOTAL $1,661.35
THE MODE OF SHIPMENT IS BY MOTOR COMMON CARRIER OF GENERAL
COMMODITIES, AND THE AUTHORITY FOR THE LINEHAUL CHARGES IS T.I.M.E.-DC
TENDER NO. 683. WHILE THE RATE AND MINIMUM ARE THE SAME AS IN THE
STRICKLAND TENDER, *** THE CAPACITY LOAD AND OVERFLOW PROVISIONS OF
ECMCA TARIFF 35-SERIES, ITEM 460-SERIES, ARE SPECIFICALLY MADE
CONTROLLING BY THE T.I.M.E.-DC TENDER. LOADING OF 40 CRATES PER TRUCK,
MAXIMUM, IS BASED UPON INFORMATION FURNISHED BY THE AIR FORCE. EVEN
GRANTING ELLINOR THE MOST FAVORABLE INTERPRETATION OF THE STRICKLAND
TENDER, AND THE POSSIBILITY OF LOADING 43 CRATES ON THE LEAD VEHICLE ***
, EITHER THE $1,476.04 CLAIMED BY ELLINOR, OR THAT AMOUNT INCREASED BY
THE $135.25 PIER DELIVERY CHARGES, WOULD SUBSTANTIALLY EXCEED THE LOWEST
TRANSPORTATION CHARGES FOUND APPLICABLE FROM DENVER, INFRA. THE
AUTHORITY FOR THE PIER DELIVERY CHARGES IS ECMCA 49-SERIES, ITEM
130-17-SERIES, NOTE C, APPLICABLE TO BOTH THE STRICKLAND AND T.I.M.E.-DC
TENDERS.
"THE LOWEST CHARGES FROM DENVER TO NEW YORK ARE CONSTRUCTED AS
FOLLOWS:
LINEHAUL 42,267 POUNDS @ $3.01 - $1,272.24
PIER DELIVERY 42,267 POUNDS @ .27 - 114.12
TOTAL $1,386.36
THE AUTHORITY FOR THESE CHARGES IS ROCKY MOUNTAIN MOTOR TARIFF 19-A,
U.S. GOVERNMENT QUOTE 26, ITEM 4420, APPLICABLE ON FREIGHT ALL KINDS,
VOLUME MINIMUM WEIGHT 30,000 POUNDS. THE PIER DELIVERY CHARGES ARE
PUBLISHED IN RMMTB TARIFF 3-G.
"THESE FIGURES ($1,661.35 LESS $1,386.36) INDICATE A DIFFERENCE OF
$274.99, IN FAVOR OF DENVER AND PANCOA. *** "
WITH RESPECT TO THE DIFFERENCE BETWEEN THE $1,386.36 TRANSPORTATION
CHARGES APPLICABLE TO PANCOA'S F.O.B. DENVER BID, AND THE COMPUTATION OF
SUCH CHARGES ADVANCED IN YOUR LETTER OF APRIL 26, 1971, OUR
TRANSPORTATION DIVISION COMMENTS AS FOLLOWS:
"AS TO THE CHARGES FROM DENVER TO NEW YORK, THE ELLINOR CORPORATION
IN ITS 'FACT SHEET' CALCULATES CHARGES USING A CAPACITY LOAD RULE, ITEM
610-5 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU, INC. (RMMTB), AGENT, TARIFF
20-G, MF-ICC NO. 193. THE $3.01 RATE PER 100 POUNDS IS PUBLISHED IN
RMMTB QUOTATION 19-A, ICC 26, AND BOTH PARTIES AGREE THAT RATE IS
APPLICABLE. ITEM 100 THEREOF PUBLISHES THE GOVERNING PUBLICATIONS FOR
QUOTATION 19-A, AND IT SHOWS THAT EITHER RMMTB TARIFFS MF-ICC 193 OR
MF-ICC 201 COULD BE APPLICABLE. THEIR APPLICATION, HOWEVER, IS
CONTINGENT 'TO THE EXTENT THE INDIVIDUAL TARIFFS HAVE TERRITORIAL
APPLICATION TO THE RESPECTIVE MOVEMENT.'
"RMMTB TARIFF 20-G HAS NO APPLICATION FROM DENVER TO NEW YORK, SINCE
PAGE 209 OF THAT TARIFF LISTS DENVER AS A POINT IN EASTERN COLORADO, BUT
A REFERENCE MARK AFFIXED TO THE DENVER LISTING CLEARLY INDICATES THAT
THE RULES THEREIN APPLY ONLY IN CONNECTION WITH THE DETERMINATION OF
RATES FROM OR TO CERTAIN POINTS IN WESTERN TERRITORY (I.E., WEST OF THE
CONTINENTAL DIVIDE). THEREFORE, THOSE RULES, INCLUDING ITEM 610-5,
COULD NOT BE APPLIED TO A RATE FROM DENVER TO ANY POINT IN EASTERN
TERRITORY, SUCH AS NEW YORK. THUS RMMTB TARIFF 20-G IS TERRITORIALLY
EXCLUDED FROM ANY EFFECT UPON THE RATE OR VOLUME MINIMUM WEIGHT UNDER
CONSIDERATION.
"RMMTB TARIFF 3-G, MF-ICC NO. 201, UPON WHICH WE RELY, PUBLISHES
RATES FROM EASTERN COLORADO TO NEW YORK. THAT TARIFF IS NOT GOVERNED BY
RMMTB TARIFF 20-G, AND RMMTB TARIFF 3-G CONTAINS NO CAPACITY LOAD RULE
WHICH WOULD IMPAIR THE VOLUME MINIMUM WEIGHT OF 30,000 POUNDS FROM
DENVER. SINCE THE ACTUAL WEIGHT OF THE SHIPMENT IS IN EXCESS OF THE
VOLUME MINIMUM WEIGHT, THE ACTUAL WEIGHT IS CORRECTLY USED TO COMPUTE
THE TOTAL CHARGES. IN THIS INSTANCE ACTUAL WEIGHT WOULD BE USED
REGARDLESS OF THE NUMBER OF VEHICLES USED TO TRANSPORT THE SHIPMENT OR
THE WEIGHT LOADED ON EACH VEHICLE."
THE OTHER CONTENTIONS RAISED IN YOUR LETTER DATED APRIL 26, 1971,
NEED NOT BE CONSIDERED SINCE THEY PERTAIN TO MODES OR METHODS OF
TRANSPORTATION WHICH WOULD GIVE RISE TO CHARGES EXCEEDING THE LOWEST
AVAILABLE BASIS AS INDICATED ABOVE.
IN VIEW OF THE FOREGOING, WE FIND NO BASIS TO QUESTION THE AWARD MADE
TO PANCOA AND YOUR PROTEST IS THEREFORE DENIED.
B-172565, AUG 3, 1971
TEMPORARY DUTY WITHIN COMMUTING DISTANCE - NON-WORKDAYS
RETURNING VOUCHER FOR PAYMENT OF CLAIM OF MR. DONALD ARON FOR MILEAGE
ALLOWANCE INCIDENT TO TEMPORARY DUTY.
SUBSECTION 6.4 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS
PROVIDES THAT A TRAVELER MAY BE REQUIRED TO RETURN TO HIS OFFICIAL
STATION ON NON-WORKDAYS IF IT WOULD RESULT IN A SAVINGS TO THE
GOVERNMENT. CLAIMANT IS THUS ENTITLED TO PAYMENT OF THE MILEAGE
PROVIDING IT DOES NOT EXCEED THE PER DIEM HE WOULD HAVE DRAWN BY
REMAINING AT THE TEMPORARY DUTY STATION.
TO MR. JACK H. RAND:
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 2, 1971 (AD:FF),
CONCERNING THE CLAIM OF MR. DONALD ARON FOR MILEAGE ALLOWANCE INCIDENT
TO TEMPORARY DUTY PERFORMED AT BOSTON, MASSACHUSETTS, DURING THE PERIOD
FROM NOVEMBER 29 THROUGH DECEMBER 18, 1970.
MR. ARON, WITH RESIDENCE AND OFFICIAL STATION AT PROVIDENCE, RHODE
ISLAND, WAS DIRECTED TO ACT AS INSTRUCTOR IN A TECHNICAL TRAINING COURSE
AT BOSTON, MASSACHUSETTS. YOU SAY THAT THERE WOULD HAVE BEEN A SAVING
OF $33.15 FOR EACH OF THE WEEKENDS OCCURRING IN THE TRAVEL PERIOD HAD
THE EMPLOYEE RETURNED TO HIS OFFICIAL STATION. HOWEVER, HE ELECTED TO
REMAIN IN BOSTON OVER THE WEEKENDS OF DECEMBER 5 AND 12, 1970, AND
CLAIMED PER DIEM. THE PER DIEM CLAIMED FOR NONWORK DAYS DURING THE
TRAVEL PERIOD WAS ADMINISTRATIVELY SUSPENDED AND THE TRAVELER PRESENTED
CLAIM FOR MILEAGE AT THE RATE OF 10 CENTS PER MILE FOR THE DISTANCE THAT
WOULD HAVE BEEN TRAVELED HAD HE RETURNED TO HIS OFFICIAL STATION (HOME)
ON THE WEEKENDS INVOLVED. HIS CLAIM WAS DISALLOWED FOR THE REASON THAT
TRAVEL EXPENSES WHICH WERE NOT ACTUALLY INCURRED CANNOT BE REIMBURSED.
THE TRAVEL VOUCHER FORWARDED WITH YOUR LETTER REPRESENTS A RECLAIM OF
THE MILEAGE FOR CONSTRUCTIVE TRAVEL THAT WAS PREVIOUSLY DISALLOWED.
YOU SUBMITTED THE MATTER FOR OUR DECISION AND REQUESTED OUR ANSWERS
TO THE FOLLOWING QUESTIONS:
"1. IF WE ARE TO REIMBURSE THE TRAVELER ON A COMPARATIVE BASIS FOR
TRAVEL WHICH HE DID NOT PERFORM, WHAT MODE OF TRANSPORTATION (AIR,
TRAIN, PRIVATE AUTO) WOULD BE USED IN COMPUTING THE AMOUNT TO BE
REIMBURSED?
"2. IF AN EMPLOYEE WERE TO INCUR LODGING EXPENSE DURING WORKDAYS AT
A TEMPORARY DUTY STATION WHICH IS LATER ADMINISTRATIVELY DETERMINED TO
BE WITHIN THE COMMUTING AREA OF HIS OFFICIAL STATION, AND HIS PER DIEM
CLAIM IS DENIED, MAY HE CLAIM DAILY COMMUTING EXPENSES IN LIEU OF THE
NONREIMBURSABLE PER DIEM, EVEN THOUGH SUCH COMMUTATION EXPENSE WAS NOT
INCURRED BY HIM."
SUBSECTION 6.4 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS
PROVIDES AS FOLLOWS:
"6.4 RETURN TO OFFICIAL STATION. - AT THE DISCRETION OF THE
ADMINISTRATIVE OFFICIALS A TRAVELER MAY BE REQUIRED TO RETURN TO HIS
OFFICIAL STATION FOR NONWORK DAYS. IN CASES OF VOLUNTARY RETURN OF A
TRAVELER FOR NONWORK DAYS TO HIS OFFICIAL STATION, OR HIS PLACE OF ABODE
FROM WHICH HE COMMUTES DAILY TO HIS OFFICIAL STATION, THE MAXIMUM
REIMBURSEMENT ALLOWABLE FOR THE ROUND-TRIP TRANSPORTATION AND PER DIEM
EN ROUTE WILL BE THE TRAVEL EXPENSE WHICH WOULD HAVE BEEN ALLOWABLE HAD
THE TRAVELER REMAINED AT HIS TEMPORARY DUTY STATION."
ON THE BASIS OF SUBSECTION 1.2 OF THE STANDARDIZED GOVERNMENT TRAVEL
REGULATIONS WHICH PROVIDES THAT EMPLOYEES TRAVELING ON OFFICIAL BUSINESS
ARE EXPECTED TO EXERCISE THE SAME CARE IN INCURRING EXPENSES THAT A
PRUDENT PERSON WOULD EXERCISE FOR TRAVELING ON PERSONAL BUSINESS, WE
HAVE HELD THAT A TRAVELER MUST RETURN TO HIS OFFICIAL STATION ON NONWORK
DAYS IF HIS PRESENCE AT HIS TEMPORARY DUTY STATION IS NOT REQUIRED AND A
SUBSTANTIAL SAVINGS TO THE GOVERNMENT WOULD RESULT FROM SUCH RETURN.
SEE B-139852, JULY 24, 1959, COPY HEREWITH.
WHILE SUBSECTION 6.4 DEFINITELY LIMITS THE TRAVEL COSTS INCURRED IN
THE VOLUNTARY RETURN OF THE TRAVELER TO HIS OFFICIAL STATION ON NONWORK
DAYS NO STANDARD IS PROVIDED FOR USE IN DETERMINING THE ALLOWABLE
ROUND-TRIP COSTS. HOWEVER, IT IS OUR VIEW THAT THE PER DIEM RATE
AUTHORIZED AT THE TEMPORARY DUTY STATION AND MILEAGE RATES, OR COMMON
CARRIER COSTS SPECIFIED IN THE TRAVEL ORDER PLUS OTHER REIMBURSABLE
TRAVEL COSTS WHEN A PRIVATELY OWNED AUTOMOBILE IS USED SUCH AS BRIDGE
AND HIGHWAY TOLLS, TAXICAB FARES, ETC., CONSTITUTE A REASONABLE STANDARD
TO MEASURE THE EMPLOYEE'S TRAVEL COSTS FOR VOLUNTARY RETURN TO HIS
HEADQUARTERS ON NONWORK DAYS.
IF IT IS DETERMINED ADMINISTRATIVELY THAT THE TRAVELER SHOULD HAVE
RETURNED TO HIS OFFICIAL STATION ON NONWORK DAYS HE IS ENTITLED TO THE
TRAVEL COSTS THAT WOULD NECESSARILY HAVE BEEN INCURRED BY HIM FOR SUCH
RETURN TRAVEL NOT IN EXCESS OF THE AUTHORIZED PER DIEM HE WOULD HAVE
BEEN ENTITLED TO AT HIS TEMPORARY DUTY STATION. B-171583, MARCH 23,
1971, COPY ENCLOSED. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.
IN REGARD TO YOUR SECOND QUESTION WE MAY NOT UNDERTAKE AN ANSWER
THERETO AT THIS TIME SINCE SUCH QUESTION APPARENTLY DOES NOT ARISE OUT
OF THE VOUCHER CURRENTLY BEFORE YOU FOR CERTIFICATION. HOWEVER, WE
REFER YOU TO OUR DECISION IN 32 COMP. GEN. 235 (1952), AND ENCLOSE
COPIES OF OUR DECISIONS (B-164189, JUNE 25, 1968, AND B-169998, JULY 20,
1970), WHICH MAY BE HELPFUL TO YOU IN THE MATTER.
THE VOUCHER TRANSMITTED WITH YOUR LETTER OF APRIL 2, 1971, IS
RETURNED FOR HANDLING IN ACCORDANCE WITH THE FOREGOING.
B-172582, AUG 3, 1971
TRANSPORTATION ALLOWANCE - EXCESS COSTS - REFUND OF
ADVANCE DECISION TO DEPARTMENT OF TRANSPORTATION (DOT) AS TO WHETHER
THEY MAY CERTIFY FOR PAYMENT A RECLAIM VOUCHER SUBMITTED BY JAMES A.
BAUTZ, AN EMPLOYEE OF THE URBAN MASS TRANSPORTATION ADMINISTRATION,
REPRESENTING EXCESS COSTS COLLECTED FROM CLAIMANT INCIDENT TO DISCHARGE
FROM THE U. S. NAVY.
IT APPEARS FROM THE RECORD THAT MR. BAUTZ IS DUE A REFUND ON THE
CLAIM. HOWEVER, THE VOUCHER SHOULD BE PRESENTED TO THE NAVY REGIONAL
FINANCE CENTER FOR PAYMENT, AND MAY NOT BE PAID BY DOT.
TO MRS. LUELLA S. HOWARD:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 6, 1971, REQUESTING
A DECISION WHETHER A RECLAIM VOUCHER IN THE AMOUNT OF $62 SUBMITTED BY
JAMES A. BAUTZ, AN EMPLOYEE OF THE URBAN MASS TRANSPORTATION
ADMINISTRATION MAY BE CERTIFIED BY YOU FROM APPROPRIATIONS AVAILABLE TO
YOUR DEPARTMENT.
THE AMOUNT CLAIMED REPRESENTS THE EXCESS COST COLLECTED FROM MR.
BAUTZ ON APRIL 22, 1970, INCIDENT TO THE SHIPMENT OF HIS HOUSEHOLD GOODS
UPON DISCHARGE FROM ACTIVE SERVICE WITH THE UNITED STATES NAVY, PURSUANT
TO BUREAU OF NAVAL PERSONNEL ORDERS NO. 026081, DATED OCTOBER 21, 1969.
INFORMATION CONTAINED IN THE TRANSMITTED FILE INCLUDES A GOVERNMENT
BILL OF LADING DATED APRIL 20, 1970, WHICH SHOWS THAT A NET WEIGHT OF
4,618 POUNDS OF HOUSEHOLD GOODS BELONGING TO LIEUTENANT BAUTZ, CEC,
USNR, WAS SHIPPED MAY 13, 1970, FROM THE ARMY MILITARY OCEAN TERMINAL AT
BAYONNE, NEW JERSEY, TO ARLINGTON, VIRGINIA. REMARKS ON THE BILL OF
LADING SHOW THAT EXCESS COST IN THE AMOUNT OF $62 WAS DUE FROM THE
OFFICER ON ACCOUNT OF EXCESS MILEAGE INCIDENT TO THE SHIPMENT OF HIS
HOUSEHOLD GOODS.
A CASH COLLECTION VOUCHER DATED APRIL 22, 1970, INITIATED BY
HEADQUARTERS, DEPARTMENT OF THE ARMY MILITARY OCEAN TERMINAL, BAYONNE,
NEW JERSEY, SHOWS THAT A COLLECTION IN THE AMOUNT OF $62 WAS MADE FROM
MR. BAUTZ AND WAS CREDITED TO A DEPARTMENT OF THE NAVY RECEIPT ACCOUNT.
ON NOVEMBER 7, 1970, MR. BAUTZ SUBMITTED A TRAVEL VOUCHER TO YOUR
OFFICE CLAIMING MILEAGE, PER DIEM AND INCIDENTAL EXPENSES FOR TRAVEL BY
PRIVATELY OWNED VEHICLE ON MAY 1, 1970, FROM NEW YORK, NEW YORK, TO
ARLINGTON, VIRGINIA, INCIDENT TO HIS APPOINTMENT WITH THE DEPARTMENT OF
TRANSPORTATION. HE ALSO CLAIMED A REFUND OF THE EXCESS COSTS COLLECTED
FROM HIM BY THE DEPARTMENT OF THE ARMY FOR THE ACCOUNT OF THE DEPARTMENT
OF THE NAVY. A NOTATION STATED THAT MR. BAUTZ WAS DISCHARGED FROM THE
NAVY AND ALL MOVING EXPENSES WERE PAID EXCEPT THOSE WHICH WERE THEN
CLAIMED. HOWEVER, PAYMENT WAS MADE FOR MILEAGE AND OTHER TRAVEL
EXPENSES ONLY.
ON MARCH 12, 1971, MR. BAUTZ FILED A SUPPLEMENTAL VOUCHER FOR REFUND
OF THE $62 PREVIOUSLY COLLECTED FROM HIM. IN YOUR TRANSMITTAL LETTER
DATED APRIL 6, 1971, YOU ASK WHETHER THAT VOUCHER MAY BE CERTIFIED FOR
PAYMENT.
IN OUR LETTER DATED JULY 8, 1971, WE ADVISED YOU THAT IT WAS FOUND
NECESSARY TO SECURE ADDITIONAL INFORMATION FROM THE DEPARTMENT OF THE
NAVY PERTAINING TO THE CLAIM. WE ARE NOW IN RECEIPT OF A LETTER FROM
THE NAVY REGIONAL FINANCE CENTER, WASHINGTON, D.C., DATED JULY 15, 1971,
COPY ENCLOSED, ADVISING OUR OFFICE THAT IT APPEARS A REFUND OF THE
AMOUNT PREVIOUSLY COLLECTED IS DUE MR. BAUTZ.
MR. BAUTZ'S CLAIM FOR REFUND OF THE $62 IS NOT A MATTER PROPERLY FOR
CONSIDERATION BY YOUR OFFICE BUT SHOULD BE PRESENTED TO THE NAVY
REGIONAL FINANCE CENTER. THE RECLAIM VOUCHER THEREFORE MAY NOT BE
CERTIFIED BY YOU FOR PAYMENT AND IT AND THE OTHER ENCLOSURES ARE
RETURNED HEREWITH. MR. BAUTZ SHOULD BE ADVISED OF THE CONTENTS OF THE
LETTER DATED JULY 15, 1971, AND REQUESTED TO FILE HIS CLAIM WITH THE
NAVY REGIONAL FINANCE CENTER, WASHINGTON, D.C., FOR DETERMINATION BY
THAT OFFICE AS TO THE PROPER REFUND THAT MAY BE DUE HIM FROM THE AMOUNT
PREVIOUSLY COLLECTED.
B-172922, AUG 3, 1971
BID PROTEST - NONRECEIPT OF BID EXTENSION
DENIAL OF PROTEST BY MERCURY TOOL AND MACHINE CO., INC. AGAINST AWARD
OF A CONTRACT TO ANOTHER FIRM UNDER AN IFB ISSUED BY THE ROCK ISLAND
ARSENAL FOR THE PROCUREMENT OF ELEVEN "FIXTURE ASSEMBLY, RECEIVERS" FOR
END USE ON THE 30 CALIBER M1 RIFLE. PROTESTANT'S LETTER EXTENDING THEIR
BID EXPIRATION DATE WAS NOT RECEIVED BY THE CONTRACTING ACTIVITY, AND
CONSEQUENTLY THE BID WAS REJECTED.
SINCE THE TELEGRAM REQUESTING THE EXTENSION PROVIDED THAT
ACQUIENSCENCE WOULD NOT BE EFFECTIVE UNTIL RECEIPT, THE MERE MAILING OF
THE LETTER WOULD NOT BE LEGALLY SUFFICIENT. FURTHER, THE COMP. GEN.
HAS BEEN UNABLE TO FIND THAT THE ASPR IMPOSES ANY OBLIGATION ON THE
CONTRACTING OFFICER TO VERIFY THE FAILURE OF A BIDDER TO EXTEND HIS BID.
TO MERCURY TOOL AND MACHINE CO., INC.:
REFERENCE IS MADE TO YOUR LETTERS OF MAY 10 AND JUNE 9, 1971, WITH
ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER
INVITATION FOR BIDS (IFB) DAAF01-71-B-0116 ISSUED BY THE ROCK ISLAND
ARSENAL, ROCK ISLAND, ILLINOIS.
THE SUBJECT INVITATION WAS ISSUED ON AUGUST 28, 1970, FOR THE
PROCUREMENT OF ELEVEN EACH "FIXTURE ASSEMBLY, RECEIVER" FOR END USE ON
THE 30 CALIBER M1 RIFLE (BF). ON OCTOBER 9, 1970, BID OPENING REVEALED
OFFERS FROM NINE FIRMS, WITH PRICES BASED ON FIRST ARTICLE APPROVAL,
RANGING FROM THE LOWEST UNIT BID OF $475.00, SUBMITTED BY B.A.R. BEARING
MFG. CORP. (B.A.R.), TO A HIGH OF $2,145.00 PER UNIT SUBMITTED BY HOPPE
TOOL, INC. YOUR FIRM SUBMITTED THE FOURTH LOW BID, AT A UNIT PRICE OF
$1,288.00, AND GENERAL ELECTRIC COMPANY, WHICH ULTIMATELY RECEIVED THE
AWARD, WAS THE SIXTH LOW BIDDER AT A UNIT PRICE OF $1,738.00.
IN VIEW OF B.A.R.'S VERY LOW BID, VERIFICATION WAS REQUESTED. WHILE
THE CONTRACTING OFFICER WAS PROCESSING B.A.R.'S VERIFICATION, HE
REQUESTED THE SEVEN LOWEST BIDDERS, WHOSE BIDS WERE TO EXPIRE ON
DECEMBER 8, 1970, TO EXTEND THE ACCEPTANCE PERIOD THEREOF TO JANUARY 7,
1971. BOTH B.A.R. AND LOVEQUIST MANUFACTURING CO., THE FIFTH LOW
BIDDER, FAILED TO EXTEND BEYOND DECEMBER 8, 1970. THE OTHER FIVE
COMPANIES, INCLUDING YOURS, EXTENDED TO JANUARY 7, 1971, AS REQUESTED.
WHILE THE CONTRACTING OFFICER WAS AWAITING THE RESULTS OF A PREAWARD
SURVEY ON SERMOR, INC., THE SECOND LOW BIDDER, IT BECAME NECESSARY TO
REQUEST ANOTHER EXTENSION OF THE BID ACCEPTANCE PERIOD, SINCE THE
PREAWARD SURVEY WOULD NOT BE COMPLETED UNTIL AFTER EXPIRATION OF BIDS ON
JANUARY 7, 1971.
THE CONTRACTING OFFICER REQUESTED, BY TELEGRAM OF DECEMBER 29, 1970,
EXTENSION UNTIL FEBRUARY 6, 1971. ALL FIVE COMPANIES EXTENDED
ACCORDINGLY.
UPON RECEIPT OF SERMOR'S PREAWARD SURVEY, DATED JANUARY 20, 1971,
FURTHER PROBLEMS RELATED TO THE PROCESSING OF THAT FIRM NECESSITATED
ANOTHER EXTENSION. THE CONTRACTING OFFICER'S TELEGRAM OF JANUARY 27,
1971, REQUESTED BID EXTENSIONS UNTIL MARCH 8, 1971. FOUR FIRMS,
INCLUDING YOURS, ACQUIESCED IN THE REQUEST BUT IT WAS LEARNED THAT
SERMOR DID NOT WISH TO EXTEND.
AS A RESULT, SRM MANUFACTURING CO. (SRM), ORIGINALLY THE THIRD LOW
BIDDER, BECAME THE LOW RESPONSIVE BIDDER. ON FEBRUARY 10, 1971, A
COMPLETE PREAWARD SURVEY WAS REQUESTED ON SRM AND THE ENSUING SURVEY,
DATED FEBRUARY 26, 1971, RECOMMENDED THAT NO AWARD BE GRANTED TO THAT
FIRM.
BY TELEGRAM OF FEBRUARY 25, 1971, THE CONTRACTING OFFICER REQUESTED
BID EXTENSIONS TO APRIL 7, 1971, FROM THE FOUR REMAINING COMPANIES WHOSE
BIDS WERE TO EXPIRE ON MARCH 8. AS OF SUCH DATE EXTENSIONS WERE
RECEIVED FROM SRM, GENERAL ELECTRIC COMPANY (GE), AND SKYLINE INDUSTRIES
(SKYLINE).
IT IS REPORTED THAT NO EXTENSION WAS RECEIVED FROM YOUR FIRM.
ON MARCH 9, 1971, THE CONTRACTING OFFICER DETERMINED SRM TO BE
NONRESPONSIBLE. ON MARCH 16, 1971, SUCH DETERMINATION WAS FORWARDED TO
THE SMALL BUSINESS ADMINISTRATION (SBA) IN DALLAS FOR A CERTIFICATE OF
COMPETENCY (COC) DETERMINATION. HOWEVER, SRM SUBSEQUENTLY WITHDREW ITS
COC APPLICATION, THEREBY LEAVING ONLY THE BIDS OF G.E. AND SKYLINE
ELIGIBLE FOR ACCEPTANCE.
BY TELEGRAM OF MARCH 29, 1971, THE CONTRACTING OFFICER REQUESTED BID
EXTENSIONS TO MAY 7, 1971, FROM THE FIRMS WHOSE BIDS WERE TO EXPIRE
APRIL 7. BOTH G.E. AND SKYLINE EXTENDED ACCORDINGLY. YOUR FIRM WAS NOT
REQUESTED TO EXTEND SINCE THE PERIOD FOR ACCEPTANCE OF YOUR BID HAD
APPARENTLY EXPIRED ON MARCH 8.
HAVING DETERMINED THAT G.E.'S PRICE WAS FAIR AND REASONABLE, AND THAT
G.E. WAS A RESPONSIBLE FIRM ON THE BASIS OF SATISFACTORY PERFORMANCE ON
PREVIOUS CONTRACTS, THE CONTRACTING OFFICER CONSUMMATED CONTRACT NO.
DAAF01-71-C-0682 WITH THAT FIRM ON APRIL 19, 1971, AND YOU WERE SO
NOTIFIED BY A LETTER DATED APRIL 21, 1971.
YOU HAVE PROTESTED THAT YOU COMPLIED WITH ALL REQUESTS BY THE ROCK
ISLAND ARSENAL TO EXTEND THE ACCEPTANCE PERIOD UNDER THE SUBJECT IFB,
AND YOU HAVE PROVIDED THE CONTRACTING OFFICER WITH COPIES OF YOUR
LETTERS ACQUIESCING IN EACH SUCH REQUEST, INCLUDING THE CRUCIAL ONE
DATED MARCH 1, 1971, WHICH EXTENDED THE PERIOD FOR ACCEPTANCE OF YOUR
BID TO APRIL 7, 1971, AND WHICH THE PROCURING ACTIVITY STATES IT NEVER
RECEIVED. YOU CONTEND THAT, IN VIEW OF THE FACT THAT YOU HAD COMPLIED
WITH THE THREE PREVIOUS REQUESTS FOR EXTENSION, THE CONTRACTING OFFICER
SHOULD HAVE MADE A PHONE CALL TO VERIFY THE SUBMISSION OF YOUR EXTENSION
LETTER OF MARCH 1, 1971, BEFORE DISQUALIFYING YOUR BID, SINCE SUCH AN
ACTION WOULD HAVE SAVED THE GOVERNMENT $13,000.00.
WE ARE THEREFORE PRESENTED WITH A FACTUAL SITUATION WHEREBY IT IS
ALLEGED THAT YOU MAILED YOUR LETTER OF MARCH 1, 1971, BUT IT IS ALSO
ESTABLISHED THAT THERE WAS NO RECEIPT BY THE PROCURING ACTIVITY.
ASSUMING YOU MAILED YOUR LETTER OF MARCH 1, 1971, THAT SAME DATE, THE
PROCURING ACTIVITY WOULD NOT BE CHARGED WITH NOTICE OF YOUR LETTER
ACCEPTING THE EXTENSION REQUEST UNTIL IT WAS ACTUALLY RECEIVED BY THAT
ACTIVITY, SINCE THE LANGUAGE OF THE TELEGRAM OF FEBRUARY 25, 1971,
REQUESTING EXTENSION OF YOUR BID UNTIL APRIL 7, 1971, PROVIDED THAT YOUR
ACQUIESCENCE "MUST BE RECEIVED NO LATER THAN CLOSE OF BUSINESS 8 MARCH
1971." THUS, AS A MATTER OF LAW, WE CANNOT CONCLUDE THAT THE MERE
MAILING OF YOUR LETTER WAS SUFFICIENT TO COMPLY WITH THE EXTENSION
REQUEST.
AS TO YOUR CONTENTION THAT THE CONTRACTING OFFICER SHOULD HAVE
ATTEMPTED TO VERIFY WHETHER YOU DID OR DID NOT SUBMIT THE EXTENSION
LETTER IN QUESTION, OUR RESEARCH OF THE ARMED SERVICES PROCUREMENT
REGULATION HAS FAILED TO REVEAL ANY SUCH OBLIGATION. IN VIEW THEREOF,
AND SINCE THE RECORD INDICATES THAT ONE OR MORE BIDDERS FAILED TO EXTEND
THE PERIOD FOR BID ACCEPTANCE ON TWO PREVIOUS OCCASIONS THAT AN
EXTENSION WAS REQUESTED, WE ARE UNABLE TO CONCLUDE THAT THE ROCK ISLAND
ARSENAL WAS DERELICT IN THIS REGARD AS A MATTER OF LAW.
UNDER THE CIRCUMSTANCES, AND SINCE YOUR BID, AS EXTENDED BY YOUR
LETTER OF MARCH 1, HAD EXPIRED ON APRIL 7 AND YOU HAD MADE NO INQUIRY
RELATIVE TO ITS FURTHER EXTENSION, WE ARE UNABLE TO SAY THAT THE
CONTRACTING OFFICER WAS CHARGEABLE WITH NOTICE WHEN HE MADE AN AWARD ON
APRIL 19, THAT YOU MAY STILL HAVE WANTED YOUR BID CONSIDERED FOR AWARD.
ACCORDINGLY, IT WOULD APPEAR THAT THE AWARD WAS MADE IN GOOD FAITH, AND
WE SEE NO BASIS ON WHICH THE CONTRACT SO AWARDED COULD BE CONSIDERED
ILLEGAL. IN VIEW THEREOF, YOUR PROTEST MUST BE DENIED.
B-172987, AUG 3, 1971
BID PROTEST - NONRESPONSIBLE BIDDER
DENIAL OF PROTEST BY THE LOTUS COMPANY LTD. AGAINST THE REJECTION OF
THEIR OFFER UNDER AN RFP ISSUED BY THE U.S. ARMY PROCUREMENT AGENCY,
VIETNAM, FOR OPERATION AND MAINTENANCE SERVICE OF HIGH VOLTAGE
ELECTRICAL GENERATION AND DISTRIBUTION SYSTEMS IN THE REPUBLIC OF
VIETNAM. THE BID WAS REJECTED AFTER THE CONTRACTING OFFICER DETERMINED
THAT LOTUS WAS A NONRESPONSIBLE BIDDER.
THE COMP. GEN. WILL NOT SUBSTITUTE ITS JUDGEMENT AS TO THE
RESPONSIBILITY OF A BIDDER FOR THAT OF THE CONTRACTING OFFICER UNLESS IT
IS SHOWN BY CONVINCING EVIDENCE THAT THE FINDING WAS ARBITRARY,
CAPRICIOUS OR NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. IN THIS CASE, GAO
CAN FIND NO BASIS FOR CONCLUDING THAT THERE WAS AN ABUSE OF
ADMINISTRATIVE DISCRETION.
TO KIRKWOOD, KAPLAN, RUSSIN AND VECCHI:
REFERENCE IS MADE TO YOUR LETTERS OF MAY 15 AND JUNE 9, 1971, WITH
ENCLOSURES, PROTESTING AGAINST THE REJECTION OF THE OFFER OF THE LOTUS
COMPANY, LTD., SAIGON, VIETNAM, UNDER UNITED STATES ARMY PROCUREMENT
AGENCY, VIETNAM (USAPAV) REQUEST FOR PROPOSALS (RFP) NO.
DAFB11-72-R-0001, COVERING SERVICES TO OPERATE AND MAINTAIN HIGH VOLTAGE
ELECTRICAL GENERATION AND DISTRIBUTION SYSTEMS IN THE REPUBLIC OF
VIETNAM.
SEVEN PROPOSALS WERE RECEIVED ON MARCH 21, 1971. ON APRIL 3, 1971,
THE CONTRACTING OFFICER MADE A DETERMINATION AND FINDING THAT THE
PROPOSAL RECEIVED FROM THE LOTUS COMPANY WAS NONRESPONSIVE TO THE RFP
BECAUSE IT WAS NOT A FIRM OFFER UPON WHICH THE GOVERNMENT COULD ACT. BY
LETTER DATED APRIL 15, 1971, THE CONTRACTING OFFICER ADVISED LOTUS THAT
ITS PROPOSAL WAS BEING REJECTED SINCE IT WAS NONRESPONSIVE TO THE RFP.
IN ADDITION, IT HAS BEEN REPORTED THAT IMMEDIATELY AFTER ALL PROPOSALS
WERE OPENED, A PREAWARD SURVEY WAS REQUESTED ON ALL OFFERORS; THAT THE
PREAWARD SURVEY REPORT ON LOTUS RECOMMENDED THAT NO AWARD BE MADE, AND
THAT AS A RESULT OF THIS INFORMATION THE CONTRACTING OFFICER DETERMINED
ON JUNE 7, 1971, THAT LOTUS WAS NOT A RESPONSIBLE CONTRACTOR. THE
DETERMINATION WAS AS FOLLOWS:
"I HEREBY FIND THAT:
"1. LOTUS CO., LTD., DOES NOT HAVE THE MANPOWER AVAILABLE, NOR
PROVEN AVAILABILITY FROM THE INCUMBENT CONTRACTOR OR THE GOVERNMENT OF
VIETNAM, TO PERFORM THE REQUIRED SERVICES.
"2. LOTUS CO., LTD., HAS NO PAST EXPERIENCE IN PROVIDING THE TYPE OF
SERVICES REQUIRED.
"3. THE ORGANIZATION OF LOTUS CO., LTD., IS INADEQUATE TO MOBILIZE
FOR AND MANAGE THE OPERATION OF ALL ARMY LAND BASED HIGH VOLTAGE POWER
GENERATION AND DISTRIBUTION SYSTEMS IN RVN WITHIN THE TIME ALLOWED.
"4. LOTUS CO., LTD., BASED ON INFORMATION AVAILABLE, DOES NOT HAVE
THE FINANCIAL RESOURCES REQUIRED FOR THE PERFORMANCE OF THE CONTRACT.
"5. THE VICE-PRESIDENT OF OPERATIONS, MR. W. H. BANCROFT, IS
CURRENTLY UNDER INVESTIGATION BASED ON SEVERAL ALLEGED FRAUDULENT
ACTIONS UNDERTAKEN BY HIM.
"DETERMINATION
"BASED ON THE ABOVE FINDINGS AND IN ACCORDANCE WITH ASPR-1-904, AN
AFFIRMATIVE DETERMINATION OF RESPONSIBILITY CANNOT BE MADE, THEREFORE, I
HEREBY DETERMINE THAT LOTUS CO., LTD., IS NONRESPONSIBLE AND THAT THEIR
RESPONSE TO SOLICITATION DAJB11-72-R-0001 WILL RECEIVE NO FURTHER
CONSIDERATION FOR AWARD."
THE RECORD INDICATES THAT NEGOTIATIONS WERE CONDUCTED WITH OTHER
OFFERORS AND THAT AFTER COMPLETION OF THE NEGOTIATIONS, IT WAS
DETERMINED THAT PACIFIC ARCHITECTS & ENGINEERS HAD SUBMITTED THE LOWEST
PROPOSAL. IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 2-407.8(B)(2)
OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), OUR OFFICE WAS
INFORMALLY ADVISED BY THE DEPARTMENT OF THE ARMY, ON JUNE 21, 1971, THAT
DUE TO THE URGENT NEED TO CONTINUE THE SERVICES AFTER JUNE 30, 1971,
WHEN THE CURRENT CONTRACT EXPIRED, THE CONTRACTING OFFICER WAS
AUTHORIZED TO PROCEED WITH AN IMMEDIATE AWARD TO PACIFIC ARCHITECTS &
ENGINEERS.
SINCE THE DEPARTMENT OF THE ARMY HAS QUESTIONED THE ACTION OF THE
CONTRACTING OFFICER IN DETERMINING THE PROPOSAL OF LOTUS TO BE
NONRESPONSIVE TO THE RFP, WE NEED NOT DWELL ON THIS ISSUE, EXCEPT TO
EXPRESS OUR AGREEMENT WITH THE DEPARTMENT'S POSITION. NEVERTHELESS, THE
QUESTION THAT MUST ALSO BE RESOLVED IS WHETHER THE FACTS AS REPORTED
SUPPORT THE DETERMINATION OF THE CONTRACTING OFFICER THAT LOTUS WAS NOT
A RESPONSIBLE CONTRACTOR FOR THE IMMEDIATE PROCUREMENT.
ASPR 1-904.1 PRECLUDES AWARDS UNLESS THE CONTRACTING OFFICER FIRST
MAKES AN AFFIRMATIVE DETERMINATION THAT THE PROSPECTIVE CONTRACTOR IS
RESPONSIBLE UNDER THE CRITERIA SET OUT AT ASPR 1-903. ONE OF THE
CRITERIA SET OUT AT ASPR 1-903.2(A)(I) IS THAT A PROSPECTIVE CONTRACTOR
MUST "HAVE THE NECESSARY ORGANIZATION, EXPERIENCE, OPERATIONAL CONTROLS
AND TECHNICAL SKILLS, OR THE ABILITY TO OBTAIN THEM."
WITH REGARD TO THE DETERMINATIONS OF THE RESPONSIBILITY, OFFICERS IN
WHOM THE DISCRETION IS VESTED TO DETERMINE THE RESPONSIBILITY OF BIDDERS
OR OFFERORS MUST DETERMINE THE FACTS AND SUCH DETERMINATION CANNOT BE
SET ASIDE UNLESS THE ACTION CONSTITUTES AN ABUSE OF DISCRETION. SEE
MCQUILLIN, MUNICIPAL CORPORATIONS, 3D ED., VOL. 10, SEC 29.73, AND THE
CASES THEREIN CITED; 38 COMP. GEN. 131 (1958); 37ID. 430, 435 (1957);
BROWN V CITY OF PHOENIX, 272 P. 2D 358; MCNICHOLS V CITY AND COUNTY OF
DENVER, 274 P. 2D 317.
WITH RESPECT TO DETERMINATIONS OF RESPONSIBILITY, OUR OFFICE WILL NOT
SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING OFFICERS UNLESS IT
IS SHOWN BY CONVINCING EVIDENCE THAT THE FINDING OF NONRESPONSIBILITY
WAS ARBITRARY, CAPRICIOUS OR NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, 45
COMP. GEN. 4 (1965); 43 ID. 257 (1963). WE HAVE CAREFULLY REVIEWED
AND CONSIDERED THE INFORMATION RELIED UPON BY THE CONTRACTING OFFICER IN
MAKING THE DETERMINATION THAT LOTUS WAS NONRESPONSIBLE AND WE FIND NO
BASIS UPON WHICH OUR OFFICE WOULD BE JUSTIFIED IN CONCLUDING THAT THERE
WAS AN ABUSE OF THE ADMINISTRATIVE DISCRETION. CONSEQUENTLY, WE MAY
INTERPOSE NO LEGAL OBJECTION TO THE CONTRACTING OFFICER'S DETERMINATION
THAT LOTUS WAS NOT RESPONSIBLE FOR PURPOSES OF THIS PROCUREMENT.
YOU HAVE ALSO QUESTIONED THE ACTION OF THE CONTRACTING OFFICER IN
NOTIFYING ALL THE OTHER OFFERORS OF YOUR PROTEST AND REQUESTING THEIR
VIEWS ON THE MATTER. SINCE THE ACTION APPEARS TO HAVE BEEN TAKEN IN
ACCORDANCE WITH THE PROVISIONS OF ASPR 2-407.8(A)(3), WE SEE NO BASIS
FOR AN OBJECTION BY OUR OFFICE.
ACCORDINGLY, THE PROTEST IS DENIED.
B-173298, AUG 3, 1971
BID PROTEST - WALSH-HEALEY PUBLIC CONTRACTS ACT - CERTIFICATE OF
COMPETENCY
DENIAL OF PROTEST BY SERAFIN SANTIAGO AGAINST THE CANCELLATION BY
GENERAL SERVICES ADMINISTRATION OF A CONTRACT FOR "SWAGING" TOOLS. THE
CONTRACT WAS CANCELLED, IN SPITE OF A CERTIFICATE OF COMPETENCY (COC)
BEING ISSUED BY THE SMALL BUSINESS ADMINISTRATION, AFTER THE DEPARTMENT
OF LABOR DETERMINED THAT PROTESTANT WAS NEITHER A REGULAR DEALER NOR
MANUFACTURER OF THE TOOLS AS REQUIRED BY THE WALSH-HEALEY PUBLIC
CONTRACTS ACT, 41 U.S.C. 35-45.
RESPONSIBILITY FOR APPLYING THE CRITERIA OF THE WALSH-HEALEY ACT IS
VESTED IN THE CONTRACTING OFFICER AND THE DEPARTMENT OF LABOR, AND GAO
IS NOT AUTHORIZED TO REVIEW DETERMINATIONS AS TO WHETHER PARTICULAR
FIRMS ARE WITHIN THE PURVIEW OF THE ACT. FURTHER, A COC HAS NO LEGAL
EFFECT ON ELIGIBILITY UNDER THE WALSH-HEALEY ACT.
TO MR. SERAFIN SANTIAGO:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 9, 1971, WITH ENCLOSURE,
REGARDING THE ACTION OF THE GENERAL SERVICES ADMINISTRATION (GSA) IN
CANCELING CONTRACT NO. GSOOS-04236 FOR "SWAGING" TOOLS ON THE GROUND
THAT YOU WERE NOT A MANUFACTURER OR REGULAR DEALER IN SUCH TOOLS.
IN YOUR LETTER, YOU INDICATE THAT YOU CANNOT UNDERSTAND HOW GSA COULD
HAVE DETERMINED THAT YOU WERE NOT A REGULAR DEALER IN THESE TOOLS SINCE
YOU RECEIVED A CERTIFICATE OF COMPETENCY (COC) FOR THIS PROCUREMENT FROM
THE SMALL BUSINESS ADMINISTRATION (SBA) "WHO CERTAINLY THUS CONSIDERED
ME A REGULAR DEALER."
WE UNDERSTAND THAT GSA CANCELED YOUR CONTRACT ON JUNE 3, 1971, AFTER
THE DEPARTMENT OF LABOR DETERMINED ON MAY 13, 1971, THAT YOUR FIRM WAS
NEITHER A REGULAR DEALER NOR MANUFACTURER OF THE TOOLS AS REQUIRED BY
THE PROVISIONS OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT, 41 U.S.C.
35-45. THIS STATUTE, AS SUPPLEMENTED BY SUBPART 1-12.6 OF THE FEDERAL
PROCUREMENT REGULATIONS (41 CODE OF FEDERAL REGULATIONS (CFR) 1-12.6),
PROVIDES THAT, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, EVERY CONTRACT
- INCLUDING THOSE TO BE PERFORMED IN PUERTO RICO - EXCEEDING $10,000 IN
AMOUNT ENTERED INTO BY ANY GOVERNMENT AGENCY FOR THE PROCUREMENT OF
SUPPLIES SHALL CONTAIN A STIPULATION THAT THE CONTRACTOR IS A
MANUFACTURER OF OR REGULAR DEALER IN SUCH SUPPLIES AND THAT ANY BREACH
OF SUCH STIPULATION SHALL CONSTITUTE GROUNDS FOR CANCELLATION OF THE
CONTRACT. THE ACT, AS AMENDED, FURTHER PROVIDES AT 41 U.S.C. 38 THAT
THE SECRETARY OF LABOR SHALL HAVE AUTHORITY TO ADMINISTER THE PROVISIONS
OF THAT ACT AND TO MAKE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY
TO THAT END. THE "WALSH-HEALEY PUBLIC CONTRACTS ACT RULINGS AND
INTERPRETATIONS NO. 3," PUBLISHED BY THE DEPARTMENT OF LABOR, STATES AT
SECTION 29:
"(A) THE RESPONSIBILITY OF DETERMINING WHETHER OR NOT A BIDDER IS
QUALIFIED AS A MANUFACTURER OR AS A REGULAR DEALER UNDER THE PUBLIC
CONTRACTS ACT RESTS IN THE FIRST INSTANCE WITH THE CONTRACTING AGENCY.
HOWEVER, ANY DECISION WHICH THE CONTRACTING OFFICER MIGHT MAKE IS
SUBJECT TO REVIEW BY THE DEPARTMENT OF LABOR WHICH IS CHARGED WITH THE
ADMINISTRATION OF THE ACT. THE DEPARTMENT OF LABOR MAY DETERMINE THE
QUALIFICATIONS OF A BIDDER IN THE FIRST INSTANCE IN THE ABSENCE OF ANY
DECISION BY THE CONTRACTING OFFICER."
THUS, RESPONSIBILITY FOR APPLYING THE CRITERIA OF THE WALSH-HEALEY
PUBLIC CONTRACTS ACT IS VESTED IN THE CONTRACTING OFFICER AND THE
DEPARTMENT OF LABOR. OUR OFFICE IS NOT AUTHORIZED TO REVIEW
DETERMINATIONS AS TO WHETHER PARTICULAR FIRMS ARE REGULAR DEALERS OR
MANUFACTURERS WITHIN THE PURVIEW OF THE WALSH-HEALEY ACT AND WE HAVE
DENIED JURISDICTION IN THIS AREA BECAUSE SUCH DETERMINATIONS REST WITH
THE CONTRACTING OFFICER SUBJECT TO FINAL REVIEW BY THE DEPARTMENT OF
LABOR. B-166285, NOVEMBER 26, 1969; B-166905, JULY 24, 1969;
B-167004, JULY 9, 1969.
UNDER THE PROCUREMENT STATUTE (41 U.S.C. 253(B)) AND THE REGULATIONS
THEREUNDER AT 41 CFR 1-2.407-1, NO CONTRACT MAY BE AWARDED TO A BIDDER
WHO IS NOT RESPONSIBLE UNDER THE CRITERIA PRESCRIBED BY THE REGULATION
AT 41 CFR 1-1.310-5, INCLUDING THE STATUTORY REQUIREMENT THAT THE BIDDER
BE A MANUFACTURER OR A REGULAR DEALER.
WHILE THE SBA ISSUED A COC TO YOU WITH RESPECT TO THIS PROCUREMENT,
IT LONG HAS BEEN RECOGNIZED THAT SUCH CERTIFICATE IS CONTROLLING ONLY AS
TO A BIDDER'S CAPACITY AND CREDIT TO PERFORM A CONTRACT. BUT A COC HAS
NO LEGAL EFFECT ON HIS ELIGIBILITY AS A MANUFACTURER OR REGULAR DEALER
UNDER THE WALSH-HEALEY PUBLIC CONTRACTS ACT. WE HAVE SO HELD IN 37
COMP. GEN. 676 (1958). AT PAGE 678 OF THAT DECISION, WE STATED:
"SINCE BY ITS TERMS SECTION 213 OF THE SMALL BUSINESS ACT, 15 U.S.C.
642, MAKES CONCLUSIVE THE ADMINISTRATION'S CERTIFICATION OF A SMALL
BUSINESS CONCERN AS COMPETENT WITH RESPECT TO 'CAPACITY AND CREDIT,' WE
THINK SUCH PROVISION MUST BE CONSTRUED AS CONTROLLING ONLY INSOFAR AS IT
CONFLICTS WITH A DETERMINATION BY A PROCUREMENT OFFICER AS TO THE
'CAPACITY OR CREDIT' OF A BIDDER. HOWEVER, IF A BIDDER IS FOUND NOT TO
BE QUALIFIED FOR OTHER REASONS, AS FOR EXAMPLE LACK OF INTEGRITY OR A
CONSISTENT RECORD OF DEFAULT UNDER PRIOR CONTRACTS; OR IF HE IS FOUND
NOT TO BE A 'MANUFACTURER' OR 'REGULAR DEALER,' OR IS DEBARRED FROM
GOVERNMENT CONTRACTS UNDER THE STATUTES ABOVE CITED, IN OUR VIEW THE
CERTIFICATE OF COMPETENCY, BEING LIMITED BY STATUTE TO 'CAPACITY AND
CREDIT,' WOULD NOT BE DETERMINATIVE OF THE AWARD TO BE MADE."
FURTHER, THE COC PROCEDURES DO NOT APPLY WHERE THE CONTRACTING
OFFICER HAS FOUND A SMALL BUSINESS CONCERN NOT RESPONSIBLE FOR A REASON
OTHER THAN LACK OF COMPETENCY OR CREDIT. IN THIS REGARD, 41 CFR
1-1.310-5(A)(6) PROVIDES:
"(A) IN ORDER TO QUALIFY AS RESPONSIBLE, A PROSPECTIVE CONTRACTOR
MUST, IN THE OPINION OF THE CONTRACTING OFFICER, MEET THE FOLLOWING
STANDARDS AS THEY RELATE TO THE PARTICULAR PROCUREMENT UNDER
CONSIDERATION:
"(6) IS OTHERWISE QUALIFIED AND ELIGIBLE TO RECEIVE AN AWARD UNDER
APPLICABLE LAWS AND REGULATIONS; E.G., SUBPART 1-12.6."
UNDER THE CIRCUMSTANCES, WE MUST CONCLUDE THAT THE ACTION OF GSA IN
CANCELING YOUR CONTRACT WAS A PROPER EXERCISE OF PROCUREMENT
RESPONSIBILITY WHICH MAY NOT BE QUESTIONED BY OUR OFFICE.
WE TRUST THE FOREGOING SATISFACTORILY EXPLAINS THE BASES OF THE
ACTIONS TAKEN BY GSA. WITH RESPECT TO YOUR REQUEST THAT GSA WITHHOLD AN
AWARD TO YOUR COMPETITOR UNTIL YOU HAVE HAD AN OPPORTUNITY FOR A HEARING
BEFORE THE AGENCY, WE HAVE BEEN ADVISED INFORMALLY THAT GSA HAS
PROCEEDED WITH AWARD TO THE OTHER BIDDER ON THE PROCUREMENT BECAUSE OF
THE URGENT NEED FOR THE TOOLS.
B-173593, AUG 3, 1971
BID PROTEST - LATE BID - CERTIFIED MAIL RECEIPT
CONCERNING PROTEST OF CLARK BROTHERS CONTRACTORS AGAINST AWARD OF
CONTRACT UNDER IFB ISSUED BY FOREST SERVICE, MISSOULA, MONTANA, TO L. M.
JOHNSON, INC.
SINCE THE BIDDER CANNOT PRODUCE A RECEIPT FOR CERTIFIED MAIL, AS
REQUIRED BY FPR 1-2.303-3(C), THE LATE BID OF JOHNSON MAY NOT BE
CONSIDERED FOR AWARD. THE PROTEST OF CLARK IS THEREFORE AFFIRMED.
TO MR. SECRETARY:
WE REFER TO THE LETTER 6320 DATED JULY 13, 1971, FROM THE DIRECTOR OF
ADMINISTRATIVE SERVICES, FOREST SERVICE, CONCERNING THE PROTEST OF CLARK
BROTHERS CONTRACTORS AGAINST ANY AWARD OF A CONTRACT TO L. M. JOHNSON,
INC., UNDER SOLICITATION NO. R1-71-47, ISSUED BY THE FOREST SERVICE,
MISSOULA, MONTANA.
BIDS WERE OPENED AT 2 P.M. ON JUNE 4, 1971, IN THE BID OPENING ROOM
IN THE FEDERAL BUILDING AT MISSOULA. CLARK BROTHERS WAS LOW BIDDER WITH
A BID PRICE OF $851,830. A SHORT TIME THEREAFTER, A LATE BID OF
$848,956.65, WHICH THE CONTRACTING OFFICER DECIDED SHOULD BE OPENED AND
CONSIDERED FOR AWARD, WAS RECEIVED FROM L. M. JOHNSON. CLARK BROTHERS
CONTESTS THIS DECISION AND ANY RESULTING AWARD TO L. M. JOHNSON ON THE
BASIS THAT THE BID WAS LATE AND NOT FOR CONSIDERATION UNDER PARAGRAPH 7
OF THE INSTRUCTIONS TO BIDDERS.
THE RECORD INDICATES THAT THE JOHNSON BID WAS NOT DELIVERED TO THE
FOREST SERVICE BY THE POST OFFICE UNTIL AFTER THE 2 P.M. BID OPENING.
FURTHER, WE HAVE BEEN ADVISED THAT JOHNSON DOES NOT HAVE A CERTIFIED
MAIL RECEIPT ISSUED BY THE ORIGINATING POST OFFICE SHOWING A DATED
POSTMARK.
IN ORDER TO ALLOW CONSIDERATION OF A LATE BID ON THE BASIS THAT IT
WAS DELAYED IN THE MAIL, AS OPPOSED TO HAVING BEEN MISHANDLED AFTER
DELIVERY TO THE GOVERNMENT INSTALLATION INVOLVED, IT IS NECESSARY THAT
THE TIME OF MAILING BE ASCERTAINED WITH CERTAINTY IN ORDER THAT A
DETERMINATION MAY BE MADE AS TO WHETHER THE LATE RECEIPT WAS DUE SOLELY
TO A DELAY IN THE MAIL FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. THUS,
SECTION 1-2.303-3(C) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR)
REQUIRES IN THE CASE OF BIDS SENT BY CERTIFIED MAIL THAT THE TIME OF
MAILING BE DETERMINED BY THE POSTMARK PLACED ON THE BIDDER'S RECEIPT FOR
CERTIFIED MAIL BY THE POST OFFICE FROM WHICH THE BID WAS MAILED AND
PROVIDES FURTHER THAT A LATE BID FOR WHICH A RECEIPT NOT CONTAINING A
DATED POSTMARK IS FURNISHED WILL BE CONSIDERED TO BE UNACCEPTABLE.
FURTHER, PARAGRAPH 7 OF THE INVITATION INSTRUCTIONS TO BIDDERS CAUTIONED
BIDDERS USING CERTIFIED MAIL TO OBTAIN SUCH A DATED RECEIPT IN THE EVENT
PROOF OF TIME OF MAILING SHOULD BE REQUIRED AND STATED THAT SUCH RECEIPT
WOULD CONSTITUTE "THE ONLY ACCEPTABLE EVIDENCE" OF TIMELY MAILING.
FINALLY, OUR OFFICE HAS CONSISTENTLY HELD THAT THE DATED CERTIFIED MAIL
RECEIPT IS A MANDATORY PREREQUISITE TO CONSIDERATION OF A BID NOT
DELIVERED BY THE POSTAL SERVICE UNTIL AFTER BID OPENING. SEE B-167288,
JULY 17, 1969, AND CASES CITED THEREIN.
ACCORDINGLY, SINCE THE BIDDER IS UNABLE TO PRODUCE HIS RECEIPT FOR
CERTIFIED MAIL, AS REQUIRED, WE MUST CONCLUDE THAT THE LATE JOHNSON BID
MAY NOT BE CONSIDERED FOR AWARD. IN VIEW OF THIS CONCLUSION, IT IS NOT
NECESSARY TO CONSIDER THE OTHER GROUNDS OF THE CLARK BROTHERS PROTEST.
B-173632, AUG 3, 1971
CIVILIAN PERSONNEL - ACCRUED LEAVE - "FORFEITURE" AT RETIREMENT
DECISION ALLOWING CLAIM OF MR. WILLIAM S. HAWLEY FOR ANNUAL LEAVE
ALLEGEDLY FORFEITED AT HIS RETIREMENT AS A CIVILIAN EMPLOYEE OF THE
DEPARTMENT OF THE ARMY.
SINCE CLAIMANT'S SEPARATION WAS EFFECTED WITHOUT ADVANCE NOTICE OF
THE POSSIBLE FORFEITURE AND WAS CONTRARY TO ESTABLISHED AGENCY POLICY
DIRECTING THAT CURRENT ACCRUED ANNUAL LEAVE BE GRANTED IN KIND ON
SEPARATION, THE COMP. GEN. WOULD NOT OBJECT IF CLAIMANT WAS RESTORED TO
ROLL, PAID ACCRUED LEAVE, AND SEPARATION DATE ADJUSTED ACCORDINGLY.
TO FINANCE CENTER:
THIS WILL REFER TO LETTER OF YOUR OFFICE DATED JULY 1, 1971, YOUR
REFERENCE FINCS-AF, WHICH FURNISHED THE REPORT OF THE COMMANDING
OFFICER, 18TH FINANCE SECTION, APO NY 09757, CONCERNING THE CLAIM OF MR.
WILLIAM S. HAWLEY FOR ANNUAL LEAVE ALLEGEDLY FORFEITED AT HIS RETIREMENT
AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY STATIONED IN
EUROPE.
THE RECORD SHOWS THAT AS OF JUNE 20, 1970, MR. HAWLEY HAD 96 HOURS OF
CURRENTLY ACCRUED AND 360 HOURS OF ACCUMULATED ANNUAL LEAVE TO HIS
CREDIT. IT IS ALSO INDICATED THAT AT THE TIME OF HIS "RETIREMENT" ON
JUNE 30, 1970, MR. HAWLEY WAS AUTHORIZED A LUMP-SUM PAYMENT FOR THE 360
HOURS PLUS ONE HOLIDAY (JULY 3, 1970), BUT THE 96 HOURS WAS CONSIDERED
AS "FORFEITED." ALTHOUGH REQUESTED TO COMMENT ON WHETHER MR. HAWLEY WAS
ADVISED OF THE EXCESSIVE ACCRUED ANNUAL LEAVE, THE REPORT STATED:
"THERE IS NO INFORMATION AS TO NOTIFICATION OF FORFEITURE PRIOR TO MR.
HAWLEY'S SEPARATION." CONSEQUENTLY, WE MUST ACCEPT HIS ALLEGATION THAT
SUCH NOTICE WAS NOT FURNISHED.
THE GENERAL POLICY OF THE ARMY IS EXPRESSED BY THE ARMY CIVILIAN
PERSONNEL REGULATIONS 630.3-B(1)(A) AND (2)(A) WHICH STATE IN SUBSTANCE
THAT EMPLOYEES WILL NOT NORMALLY BE DENIED THE USE OF ANNUAL LEAVE IN
SITUATIONS WHERE THEY WOULD OTHERWISE LOSE CURRENT ACCRUALS BECAUSE OF
FORFEITURE RULES. FURTHERMORE, CURRENT ACCRUED ANNUAL LEAVE WILL BE
GRANTED IN KIND WHERE IT CANNOT BE INCLUDED IN A LUMP-SUM PAYMENT AT THE
TIME OF SEPARATION FROM GOVERNMENT EMPLOYMENT. WHERE SEPARATIONS HAVE
BEEN EFFECTED CONTRARY TO THIS POLICY, WE HAVE ALLOWED RESTORATION TO
THE ROLLS AND THE ADJUSTMENT OF SEPARATION DATES TO PERMIT PAYMENT FOR
ANNUAL LEAVE OTHERWISE FORFEITED. SEE B-163077, JANUARY 29, 1968;
B-168739, FEBRUARY 3, 1970; AND B-172997, JUNE 23, 1971; COPIES
ENCLOSED.
SINCE MR. HAWLEY'S SEPARATION WAS EFFECTED WITHOUT ADVANCE NOTICE OF
THE POSSIBLE FORFEITURE AND WAS CONTRARY TO ESTABLISHED AGENCY POLICY
DIRECTING THAT CURRENT ACCRUED ANNUAL LEAVE BE GRANTED IN KIND BEFORE
SEPARATION IF IT COULD NOT BE PROPERLY INCLUDED IN A LUMP-SUM PAYMENT,
SUCH SEPARATION WOULD APPEAR TO BE INEFFECTIVE. ACCORDINGLY, WE WOULD
NOT OBJECT TO MR. HAWLEY'S RESTORATION TO THE ROLLS AND A CHANGE IN THE
EFFECTIVE DATE OF HIS RETIREMENT FOR THE PURPOSE OF PERMITTING PAYMENT
FOR 96 HOURS OF CURRENT ACCRUED ANNUAL LEAVE IN HIS ACCOUNT AS OF JUNE
20, 1970, TOGETHER WITH THE ACCRUALS THEREON INCIDENT TO AN EXTENSION OF
HIS PAY STATUS. IT APPEARS THAT THE CORRECTED SEPARATION DATE WILL ALSO
RESULT IN HIS ENTITLEMENT TO 8 HOURS FOR A HOLIDAY (LABOR DAY, SEPTEMBER
7, 1970).
ADVICE OF THE ABOVE CHANGES SHOULD BE FORWARDED TO THE CIVIL SERVICE
COMMISSION FOR CORRESPONDING ADJUSTMENTS IN HIS RETIREMENT ACCOUNT. MR.
HAWLEY HAS BEEN FURNISHED A COPY OF THIS LETTER.
B-171776, AUG 2, 1971
BID PROTEST - FAILURE TO AMEND SPECIFICATIONS
DENIAL OF PROTEST BY MOHAWK AIRLINES, INC. AGAINST AWARD OF A
CONTRACT FOR PILOT TRAINING UNDER AN RFP ISSUED BY THE CONTRACT
DEVELOPMENT AND PLACEMENT BRANCH, FEDERAL AVIATION ADMINISTRATION (FAA)
AERONAUTICAL CENTER, OKLAHOMA CITY, OKLAHOMA.
IT APPEARS FROM THE RECORD THAT THE AWARD, WITHOUT A SPECIFICATIONS
AMENDMENT TO THE RFP, WAS IMPROPER IN VIEW OF SECTION 1-3.805-1(D),
FEDERAL PROCUREMENT REGULATIONS. HOWEVER, SINCE PROTESTANT'S
COMPETITIVE POSITION WAS NOT ADVERSELY AFFECTED BY THE LACK OF AN
AMENDMENT, THE COMP. GEN. IS UNABLE TO CONCLUDE THAT THE AWARD IS
LEGALLY DEFECTIVE.
TO MOHAWK AIRLINES, INC.:
WE REFER TO YOUR TELEGRAM OF JANUARY 26, 1971, AND SUBSEQUENT
CORRESPONDENCE, PROTESTING AWARD OF A CONTRACT FOR PILOT TRAINING TO
ANOTHER FIRM UNDER REQUEST FOR PROPOSALS (RFP) AC-73-1-2445, ISSUED BY
THE CONTRACT DEVELOPMENT & PLACEMENT BRANCH, FEDERAL AVIATION
ADMINISTRATION (FAA) AERONAUTICAL CENTER, OKLAHOMA CITY, OKLAHOMA.
RFP AC-73-1-2445 WAS ISSUED OCTOBER 7, 1970, REQUESTING PROPOSALS ON
A REQUIREMENTS BASIS FOR "ANNUAL REQUIREMENTS FOR FH-227/F-27 PILOT
TRAINING." THE SCHEDULE DELINEATED THE ESTIMATED HOURS OF INSTRUCTION
COMMENSURATE WITH THE REQUISITE EQUIPMENT FOR EACH PHASE OF THE TOTAL
PILOT TRAINING PROGRAM FOR FAA AIR CARRIER INSPECTORS. ITEMS 2 AND 5,
THE SUBJECTS OF THIS PROTEST, REQUIRED RESPECTIVELY: "FH-227/F-27
INITIAL PILOT SIMULATOR TRAINING FOR TWO (2) FEDERAL AVIATION
ADMINISTRATION PILOTS (NOT TO EXCEED 10 SIMULATOR HOURS PER PILOT)." AND
"FH-227/F-27 RECURRENT PILOT SIMULATOR TRAINING FOR THIRTEEN (13)
FEDERAL AVIATION ADMINISTRATION PILOTS (NOT TO EXCEED 4 SIMULATOR HOURS
PER PILOT)." ALSO CONTAINED IN THE RFP AT ARTICLE II, SECTION A WAS THE
FOLLOWING:
"ALL INSTRUCTION MUST COMPLY WITH THE CONTRACTOR'S EXISTING TRAINING
PROGRAMS, COURSES, CURRICULA, MANUALS AND PRACTICES, ALL AS APPROVED BY
THE FEDERAL AVIATION ADMINISTRATION."
IN RESPONSE TO THE RFP, MOHAWK AIRLINES, INC. (MOHAWK) SUBMITTED A
PROPOSAL BASED ON THE UTILIZATION OF A SIMULATOR AS REQUIRED BY THE RFP,
WHILE PIEDMONT AVIATION, INC. (PIEDMONT) OFFERED TO EMPLOY A COCKPIT
PROCEDURES TRAINER. WE HAVE BEEN ADVISED THAT A SIMULATOR, AS DEFINED
IN THE AVIATION INDUSTRY, IS AN EXACT REPLICA OF THE AIRCRAFT COCKPIT
REPRODUCING FLIGHT CONDITIONS THROUGH COMPUTER CONTROLLED MOVEMENT, WITH
AIRCRAFT INSTRUMENTATION RESPONSES AND HANDLING BEING DUPLICATED. THE
TRAINER METHOD IS A STATIC APPROACH WITH A COCKPIT ENVIRONMENT AND
CONTROL OPERATION TO IMITATE ACTUAL AIRCRAFT PROCEDURES. IT IS THE
PROPOSED UTILIZATION OF THE TRAINER BY PIEDMONT THAT MOHAWK PROTESTS AS
BEING NONRESPONSIVE TO THE RFP.
FROM THE RECORD, IT APPEARS THAT DURING THE COURSE OF NEGOTIATIONS,
THE FAA DECIDED THAT THE PIEDMONT PROPOSAL INCORPORATING A TRAINER
RATHER THAN A SIMULATOR WOULD SATISFY ITS REQUIREMENTS. ACCORDINGLY,
SINCE PIEDMONT'S OFFER WAS LOW, A CONTRACT WAS AWARDED TO PIEDMONT.
HOWEVER, WE NOTE THAT THE AWARDED CONTRACT DIFFERS SIGNIFICANTLY FROM
THE ORIGINAL SOLICITATION. SPECIFICALLY, ITEM 2 OF THE PIEDMONT
CONTRACT READS "PROVIDE FH-227/F-27 INITIAL PILOT SYNTHETIC TRAINER FOR
TWO (2) FEDERAL AVIATION ADMINISTRATION PILOTS (NOT TO EXCEED 4 TRAINER
HOURS PER PILOT)," AND ITEM 5 HAS BEEN CHANGED TO "PROVIDE FH-227/F-27
RECURRENT PILOT SYNTHETIC TRAINER FOR THIRTEEN (13) FEDERAL AVIATION
ADMINISTRATION PILOTS (NOT TO EXCEED 1 TRAINER HOUR PER PILOT)," WHILE,
AS INDICATED ABOVE, THE RFP SPECIFIED THE USE OF A SIMULATOR FOR THOSE
ITEMS AND REQUIRED THAT UP TO 10 AND 4 TRAINING HOURS PER PILOT BE
FURNISHED. FURTHER, IN AN INSERTION TO THE PIEDMONT CONTRACT, THE TERM
"SYNTHETIC TRAINER" IS DEFINED AS HAVING "NO MOTION BASE."
CONCERNING REQUIREMENTS CHANGES SECTION 1-3.805-1(D) OF THE FEDERAL
PROCUREMENT REGULATIONS (FPR) PROVIDES:
"WHEN, DURING NEGOTIATIONS, A SUBSTANTIAL CHANGE OCCURS IN THE
GOVERNMENT'S REQUIREMENTS OR A DECISION IS REACHED 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 REQUEST FOR PROPOSALS, AND A COPY SHALL BE FURNISHED TO EACH
PROSPECTIVE CONTRACTOR."
IT IS THE POSITION OF THE FAA THAT THE ACCEPTANCE OF PIEDMONT'S
PROPOSAL, WHEN VIEWED IN THE CONTEXT OF THE ENTIRE TRAINING PROGRAM, DID
NOT CONSTITUTE A MODIFICATION OF THE SCOPE OF WORK. TO THIS END IT IS
CONTENDED THAT AN INTERPRETATION OF THE TERM "SIMULATOR" SHOULD BE THAT
OF GENERAL USAGE TO INCLUDE ANY MECHANICAL DEVICE THAT PORTRAYS SOME
CHARACTERISTIC OF ANOTHER OPERATIVE MECHANICAL DEVICE, THEREBY
INCORPORATING THE TRAINER EMPLOYED BY PIEDMONT. IT IS A
WELL-ESTABLISHED PRINCIPLE, HOWEVER, THAT CONTRACT LANGUAGE IS GENERALLY
TO BE INTERPRETED ACCORDING TO THE TRADE MEANING ASSOCIATED WITH A GIVEN
TERM. B-168759, APRIL 15, 1970. FURTHER, WE HAVE BEEN ADVISED BY A
MANUFACTURER OF FLIGHT SIMULATION EQUIPMENT THAT THE TERM, AS CURRENTLY
USED IN THE AVIATION INDUSTRY, NECESSARILY IMPLIES A MOTION-BASED
APPARATUS CAPABLE OF REPRODUCING THE ACTUAL IN-FLIGHT OPERATIONAL
FEELINGS AND RESPONSE OF AN AIRCRAFT. IN THIS CONNECTION, THE FACT THAT
THE TERM "SYNTHETIC TRAINER" WAS SUBSTITUTED IN THE PIEDMONT CONTRACT
FOR THE TERM "SIMULATOR" AND THAT THE TERM WAS DEFINED THEREIN AS HAVING
"NO MOTION BASE" WOULD SEEM TO INDICATE THAT BOTH FAA AND PIEDMONT
RECOGNIZED THAT THE TERM "SIMULATOR" AS USED IN THE RFP WAS NOT BROAD
ENOUGH TO INCLUDE A STATIC TRAINER. WE MUST CONCLUDE THEREFORE THAT THE
ACCEPTANCE OF THE PIEDMONT PROPOSAL AS MODIFIED AMOUNTED TO A CHANGE IN
THE SCOPE OF THE REQUIREMENTS AS CONTEMPLATED BY SECTION 1-3.805-1(D) OF
THE FEDERAL PROCUREMENT REGULATIONS (FPR).
THEREFORE, UPON THE DETERMINATION THAT A TRAINER WAS ACCEPTABLE, IT
BECAME INCUMBENT UPON THE FAA TO ADVISE OTHER OFFERORS OF THE REVISED
SPECIFICATIONS IN ORDER TO PROVIDE AN OPPORTUNITY TO THOSE OFFERORS TO
CONSIDER REVISION OF THEIR OFFERS BASED UPON THE SPECIFICATIONS AS
REVISED. WHILE WE ARE COGNIZANT OF THE REQUIREMENT FOR FAA
CERTIFICATION OF PROPOSED TRAINING PROGRAMS, THAT REQUIREMENT, IN OUR
OPINION, HAS NO BEARING ON THE DUTY IMPOSED BY THE FPR SECTION QUOTED
ABOVE TO MODIFY THE RFP WHERE A SPECIFICATION CHANGE OCCURS DURING
NEGOTIATIONS. IN THIS CASE, THE FAILURE OF FAA TO MODIFY THE RFP
PRECLUDED OTHER OFFERORS OR POTENTIAL OFFERORS FROM OFFERING ALREADY
CERTIFIED SYSTEMS INCLUDING A TRAINER AS OPPOSED TO A SIMULATOR OR FROM
SEEKING FAA CERTIFICATION FOR SUCH A SYSTEM FOR PURPOSES OF SUBMITTING
AN OFFER UNDER THE RFP. IN THIS REGARD, WE HAVE BEEN ADVISED BY A
REPRESENTATIVE OF YOUR COMPANY THAT MOHAWK POSSESSES EXISTING EQUIPMENT
WHICH MAY QUALIFY TO FAA STANDARD.
ACCORDINGLY, WE CONCLUDE THAT THE AWARD, WITHOUT A SPECIFICATION
AMENDMENT TO THE RFP, WAS IMPROPER AND, BY LETTER OF TODAY TO THE
SECRETARY OF TRANSPORTATION, WE SUGGEST THAT APPROPRIATE STEPS BE TAKEN
TO ASSURE FUTURE COMPLIANCE WITH REGULATORY REQUIREMENTS. HOWEVER, WE
NOTE THAT EVEN IF YOU HAD OFFERED THE REQUESTED TRAINING UNDER ITEMS 2
AND 5 AT NO COST, YOUR PROPOSAL STILL WOULD HAVE NOT BEEN LOW.
THEREFORE, SINCE YOUR COMPETITIVE POSITION WAS NOT ADVERSELY AFFECTED BY
THE LACK OF AN AMENDMENT, WE ARE UNABLE TO CONCLUDE THAT THE AWARD AS
MADE WAS LEGALLY DEFECTIVE.
B-172232, AUG 2, 1971
BID PROTEST - BRAND NAME OR EQUAL - DEFECTIVE SPECIFICATIONS -
CANCELLATION OF AWARD
DECISION DENYING PROTEST BY FOURTH LOW BIDDER AGAINST AWARD OF A
CONTRACT TO HOLT INSTRUMENT LABORATORIES, INC., THIRD LOW BIDDER, AND
DENYING REQUEST THAT AWARD BE MADE TO MICRODOT, INC., UNDER A
SOLICITATION ISSUED BY THE ARMY ELECTRONICS COMMAND, PHILA., PA., FOR
200 AUDIO SINE GENERATORS ON A BRAND NAME "MICRODOT, MODEL F 370A" OR
EQUAL BASIS.
WHERE THE GOVERNMENT DOES NOT ACCURATELY DETAIL THOSE CHARACTERISTICS
OF THE BRAND NAME ITEM WHICH ARE CONSIDERED TO BE REQUIRED TO MEET THE
MINIMUM NEEDS OF THE GOVERNMENT, SO THAT EVEN THE BRAND NAME PRODUCT
DOES NOT MEET THE REQUIREMENT, THE PROPER ACTIONS TO TAKE ARE TO CANCEL
THE AWARD TO HOLT, AND TO RESOLICIT THE PROCUREMENT UNDER REVISED
SPECIFICATIONS WHICH WILL ASSURE FULL AND FREE COMPETITION.
TO PAUL AND GORDON:
FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF MICRODOT, INC.
(MICRODOT) AGAINST THE AWARD OF A CONTRACT TO HOLT INSTRUMENT
LABORATORIES, INC. (HOLT) UNDER SOLICITATION NO. DAAB05-71-B-0172,
ISSUED ON NOVEMBER 13, 1970, BY THE UNITED STATES ARMY ELECTRONICS
COMMAND, PHILADELPHIA, PENNSYLVANIA.
THE SOLICITATION REQUESTED BIDS FOR 200 AUDIO SINE GENERATORS TO BE
IN ACCORDANCE WITH THE BRAND NAME, "MICRODOT, INC., MODEL F 370A OR
EQUAL", WITH CERTAIN MINIMUM SALIENT TECHNICAL CHARACTERISTICS TO WHICH
ANY OFFERED ITEM MUST COMPLY, AS CITED UNDER NOTE 11, SECTION F, OF THE
SOLICITATION, AND CERTAIN OTHER SPECIAL NOTES UNDER THAT SECTION.
BIDDERS, EXCEPT FOR THE BRAND NAME FIRM, WERE REQUIRED TO DELIVER A BID
SAMPLE PRIOR TO BID OPENING DATE FOR EVALUATION AND TESTING IN
ACCORDANCE WITH THE GOVERNMENT'S STATED REQUIREMENTS.
ALTHOUGH FORTY FIRMS WERE SOLICITED, WHEN BIDS WERE OPENED ON
DECEMBER 23, 1970, ONLY FOUR FIRMS HAD SUBMITTED BIDS. OF THESE, THE
LOWEST BID WAS REJECTED FOR FAILURE TO COMPLY WITH VARIOUS SPECIFICATION
REQUIREMENTS, AND THE SECOND LOW BID WAS REJECTED FOR FAILURE TO SUBMIT
A BID SAMPLE.
BASED UPON A REPORT DATED FEBRUARY 3, 1971, FROM THE CHIEF OF THE
TEST EQUIPMENT AND POWER SERVICE DIVISION AT FORT MONMOUTH, NEW JERSEY,
TO THE EFFECT THAT HOLT'S BID, OFFERING ITS MODEL 409-1, MET ALL OF THE
REQUIREMENTS OF THE SOLICITATION, THE CONTRACTING OFFICER MADE THE AWARD
TO THAT FIRM ON MARCH 15, 1971, AS THE LOW RESPONSIVE, RESPONSIBLE
BIDDER. AS DISCUSSED BELOW, IT WAS LATER REVEALED THAT THE REFERENCED
REPORT CONCERNING THE CONFORMITY OF HOLT'S ITEM WAS IN ERROR. FOLLOWING
YOUR INITIAL PROTEST ON BEHALF OF MICRODOT ON MARCH 17, 1971, HOLT
AGREED TO A NO-COST SUSPENSION OF WORK ON THE CONTRACT UNTIL APRIL 30,
1971. IT IS REPORTED THAT A UNILATERAL STOP-WORK ORDER WAS ISSUED BY
THE DEPARTMENT OF THE ARMY ON MAY 3, 1971, PENDING A RESOLUTION OF THE
PROTEST.
THE BASIS OF YOUR PROTEST IS THAT HOLT'S MODEL 409-1 WEIGHED MORE
THAN 45 POUNDS, WHICH IS IN EXCESS OF THE UNIT WEIGHT OF APPROXIMATELY
25 POUNDS SET FORTH IN NOTE 11(11) OF SECTION F AS A MINIMUM SALIENT
TECHNICAL CHARACTERISTIC.
AFTER RECEIPT OF YOUR PROTEST, IT WAS REPORTED BY THE COGNIZANT
ENGINEERING OFFICE THAT WHILE HOLT'S SAMPLE WEIGHED 47 POUNDS, THIS
DEVIATION WAS CONSIDERED MINOR SINCE THEIR SAMPLE INCLUDED POTTED
TRANSFORMERS, WHICH ADDED CONSIDERABLE WEIGHT. SINCE OPEN TYPE
TRANSFORMERS CAN BE USED IN NORMAL PRODUCTION WITHOUT ADDITIONAL
ENGINEERING, IT WAS FELT THAT HOLT'S PRODUCTION UNIT WOULD MEET THE
WEIGHT REQUIREMENTS OF THE INVITATION. IT IS NOTED, HOWEVER, THAT THE
SAMPLE WAS REQUIRED TO BE AN OPERATING MODEL OF THE EQUIPMENT THE
CONTRACTOR PROPOSED TO FURNISH. SINCE THE RECORD DOES NOT INDICATE THAT
HOLT INTENDED TO SUPPLY A UNIT DIFFERENT FROM THE SAMPLE, IT IS DOUBTFUL
THAT SUCH FIRM COULD BE REQUIRED UNDER ITS CONTRACT TO SUPPLY PRODUCTION
UNITS MEETING THE WEIGHT SPECIFICATION.
THE CONTRACTING OFFICER IS NOW OF THE OPINION THAT AN IMPROPER AWARD
WAS MADE TO HOLT BECAUSE ITS BID SAMPLE EXCEEDED THE APPROXIMATE WEIGHT
SET FORTH IN THE TECHNICAL SALIENT CHARACTERISTICS, AND THAT A MISTAKE
WAS MADE IN ACCEPTING THE NONRESPONSIVE BID SUBMITTED BY HOLT. ALTHOUGH
HE RECOMMENDS THAT THE AWARD TO HOLT BE CANCELLED, THE CONTRACTING
OFFICER IS OF THE VIEW THAT AWARD SHOULD NOT BE MADE TO MICRODOT
INASMUCH AS MICRODOT'S SAMPLE, ALBEIT THE BRAND NAME, ALSO DOES NOT MEET
THE REQUIREMENTS OF THE SOLICITATION BECAUSE OF THE FOLLOWING
INCONSISTENCIES BETWEEN THE SOLICITATION CHARACTERISTICS AND MICRODOT'S
SAMPLE MODEL:
SOLICITATION MICRODOT, INC.
HEIGHT - 12-3/4 + OR - 1.0 IN.) 5.22 IN.
DEPTH - 15-1/2 + OR - 1.0 IN.) APPROXIMATE 13 IN.
WIDTH - 20-3/4 + OR - 1.0 IN.) 17 IN.
IT IS REPORTED THAT THE DIMENSIONS OUTLINED IN THE SOLICITATION
REPRESENT THOSE OF A HEWLETT-PACKARD COMPANY TUBE VERSION GENERATOR (AS
OPPOSED TO A SOLID STATE TYPE) WHICH WAS PROCURED SOLE SOURCE FROM THAT
FIRM PRIOR TO A 1968 AWARD TO DATA ROYAL COMPANY WHOSE GENERATOR LINE
WAS SUBSEQUENTLY PURCHASED BY MICRODOT. THE WEIGHT OF THE
HEWLETT-PACKARD TUBE TYPE GENERATOR HAD VARIED FROM 56 TO 65 POUNDS, AND
THE SPECIFICATIONS PRIOR TO THE 1968 AWARD TO DATA ROYAL STIPULATED A
WEIGHT OF 65 POUNDS. DATA ROYAL DELIVERED UNDER THE 1968 CONTRACT A
SOLID STATE TYPE UNIT WHICH WEIGHED 25 POUNDS AND SUBSEQUENTLY THE ARMY
CHANGED THE WEIGHT REQUIREMENTS IN THE SPECIFICATIONS TO READ "25 POUNDS
APPROXIMATE" BUT DID NOT CHANGE THE DIMENSIONS TO CORRESPOND WITH A
SOLID STATE TYPE GENERATOR.
THE CONTRACTING OFFICER HAS THEREFORE CONCLUDED THAT THE SOLICITATION
MUST BE CONSIDERED DEFECTIVE, AND THAT IT DOES NOT STATE THE ACTUAL
MINIMUM NEEDS OF THE GOVERNMENT SINCE EITHER A SOLID STATE OR TUBE TYPE
UNIT, WHICH DOES NOT EXCEED 56 POUNDS AND THE DIMENSIONS SET OUT IN THE
SOLICITATION, IS ACCEPTABLE TO THE GOVERNMENT. IN THIS REGARD, THE
ADMINISTRATIVE REPORT TO OUR OFFICE OBSERVES THAT HEWLETT-PACKARD AND AT
LEAST ONE OTHER SUPPLIER WHO HAD PREVIOUSLY FURNISHED A TUBE TYPE
GENERATOR WERE PRECLUDED FROM OFFERING A TUBE TYPE GENERATOR ON THE
SUBJECT INVITATION BECAUSE OF THE 25-POUND WEIGHT LIMITATION OF THE
SOLICITATION, SINCE SUCH LIMITATION PERMITTED THE FURNISHING OF UNITS
ONLY OF A SOLID STATE DESIGN. HOWEVER, IT IS ALSO REPORTED THAT THE
ITEM AS SOLICITED FAILS TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT IN
THAT ENVIRONMENTAL PERFORMANCE REQUIREMENTS DEEMED NECESSARY TO ASSURE
SUITABILITY OF THE ITEM FOR ISSUE WERE NOT INCLUDED THEREIN.
IN VIEW OF THE TECHNICAL REQUIREMENTS NOW DETERMINED TO BE NECESSARY
TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT, THE CONTRACTING OFFICER IS
OF THE OPINION THAT THE BID SAMPLE PROVISION SHOULD NOT HAVE BEEN
UTILIZED IN THE SOLICITATION, AS THE DESIRED PRODUCT CAN BE ADEQUATELY
DEFINED USING A DETAILED PURCHASE DESCRIPTION WHICH WOULD INCLUDE THE
NECESSARY ENVIRONMENTAL PERFORMANCE REQUIREMENTS NOT PRESENT IN THE
CURRENT SOLICITATION. IT IS CONSIDERED THAT THIS METHOD WOULD ASSURE A
MAXIMUM AMOUNT OF COMPETITION SINCE IT WOULD OFFER A COMPETITIVE
OPPORTUNITY TO THOSE COMPANIES WHICH POSSESS THE NECESSARY ENGINEERING
CAPABILITY TO PRODUCE THE EQUIPMENT BUT ARE NOT IN A POSITION TO
FABRICATE AND SUBMIT A BID SAMPLE WITHIN THE ALLOWABLE SOLICITATION
PERIOD.
IN VIEW OF THE FOREGOING FACTORS, IT IS THE POSITION OF THE
DEPARTMENT OF THE ARMY THAT THE PROPER ACTIONS TO TAKE IN THIS CASE ARE
TO CANCEL THE AWARD MADE TO HOLT, AND TO RESOLICIT THE PROCUREMENT UNDER
REVISED SPECIFICATIONS WHICH WILL ASSURE FULL AND FREE COMPETITION AND,
AT THE SAME TIME, ASSURE THAT THE GOVERNMENT PROCURES EQUIPMENT ON A
BASIS WHICH WILL NOT EXCEED ITS ACTUAL MINIMUM NEEDS.
YOU CONTEND THAT THE CONTRACT SHOULD BE AWARDED TO MICRODOT AND THAT
A RESOLICITATION WOULD BE PREJUDICIAL TO THE COMPETITIVE SYSTEM AND
CONTRARY TO OUR DECISION REPORTED AT 49 COMP. GEN. 211 (1969). HOLT
ADMITS THAT IN RETROSPECT THE SOLICITATION COULD HAVE BEEN MORE CLEARLY
WRITTEN, SIMPLIFIED AND LESS AMBIGUOUS, AND THAT ANY PROTEST PREDICATED
UPON A DEFECTIVE INVITATION RATHER THAN THE ISSUE OF RESPONSIVENESS OF
ANOTHER BIDDER, SUBMITTED WITHIN A REASONABLE TIME AFTER ISSUANCE OF THE
INVITATION, WOULD "BEAR SOME MERIT WORTHY OF CONSIDERATION." HOWEVER,
HOLT CONTENDS THAT THE DISPUTE CENTERS AROUND COMPLIANCE WITH A
TECHNICAL SPECIFICATION (WHICH IT ARGUES IT MET), NOT A POINT OF LAW,
AND THAT THE DECISION ON RESPONSIVENESS, IN THIS CASE, IS A TECHNICAL
DECISION, NOT A LEGAL ONE. HOLT ALSO ASSERTS THAT A PROVISION FOR
SUBMISSION OF A BID SAMPLE IMPLIES THAT THE SALIENT SPECIFICATIONS WERE
ONLY GUIDELINES, WHILE SUITABILITY OF THE PRODUCT OFFERED TO THE
GOVERNMENT'S REQUIREMENTS WAS TO BE DETERMINED BY THE BID SAMPLE
EVALUATION.
WE BELIEVE THE POINT IS WELL SETTLED THAT, EVEN WHEN TECHNICAL
DETERMINATIONS ARE INVOLVED, THE QUESTION OF THE RESPONSIVENESS OF A BID
IS A MATTER OF LAW. THERE IS NO REFUTATION OF THE FACT THAT NEITHER
MICRODOT NOR HOLT'S UNITS COMPLIED WITH ALL OF THE SALIENT PHYSICAL
CHARACTERISTICS OF THE SOLICITATION AS WRITTEN AND, AS SUCH, WERE
NONRESPONSIVE TO THOSE STATED MATERIAL REQUIREMENTS.
ALSO, WE DO NOT AGREE WITH HOLT'S CONTENTION THAT A REQUIREMENT FOR
BID SAMPLES CONVERTS SPECIFICATIONS STATED AS ESSENTIAL CHARACTERISTICS
TO MERE GUIDELINES. IN THIS CONNECTION, SECTION C.30(C) PROVIDED:
"PRODUCTS DELIVERED UNDER ANY RESULTING CONTRACT SHALL CONFORM TO THE
APPROVED SAMPLE AS TO THE CHARACTERISTICS LISTED FOR TEST OR EVALUATION
AND SHALL CONFORM TO THE SPECIFICATIONS AS TO ALL OTHER
CHARACTERISTICS."
CONCERNING HOLT'S ARGUMENT THAT WEIGHT OF THE TRANSFORMER WAS NOT
CRITICAL, WE THINK IT SUFFICIENT TO OBSERVE THAT THE SPECIFIED WEIGHT
WAS LISTED AS A SALIENT CHARACTERISTIC, EVEN THOUGH IT WAS LATER
DISCOVERED THAT SUCH STATED WEIGHT REQUIREMENT WAS IN ERROR AND DID NOT
REFLECT AN ACTUAL NEED OF THE GOVERNMENT. IN THIS REGARD, TUBE TYPE
GENERATORS COULD NOT MEET THE WEIGHT REQUIREMENT OF THE GOVERNMENT, AS
SOLICITED. CONSEQUENTLY, WE FEEL THAT FULL AND FREE COMPETITION WAS NOT
OBTAINED SINCE THE SPECIFICATION REQUIREMENT, THAT THE UNIT WEIGH
APPROXIMATELY 25 POUNDS, COULD HAVE DETERRED AT LEAST THE TWO PRIOR
SUPPLIERS OF TUBE TYPE UNITS FROM COMPETING FOR THE INSTANT PROCUREMENT.
WE BELIEVE THE PRESENT CASE CAN BE DISTINGUISHED FROM 49 COMP. GEN.
211, WHICH YOU CITE TO SUPPORT AN AWARD TO MICRODOT WITHOUT
RESOLICITATION. IN THAT DECISION WE INDICATED THAT CANCELLATION OF AN
INVITATION WAS PROPER WHEN AN AWARD UNDER THE ORIGINAL SPECIFICATION
WOULD NOT SERVE THE GOVERNMENT'S ACTUAL NEEDS. IN THIS CASE, THE AGENCY
HAS DETERMINED THAT THE ITEM AS SOLICITED FAILS TO MEET THE ACTUAL NEEDS
OF THE GOVERNMENT, SINCE THE SPECIFICATIONS DO NOT INCLUDE THE NECESSARY
ENVIRONMENTAL PERFORMANCE REQUIREMENTS. ACCORDINGLY, CANCELLATION OF
THE INVITATION UNDER SUCH CIRCUMSTANCES WOULD NOT SEEM CONTRARY TO THE
CITED DECISION.
BRAND NAME OR EQUAL PROCUREMENTS ARE OFTEN TROUBLESOME AND ARE DOUBLY
SO WHEN, AS HERE, THE GOVERNMENT DOES NOT ACCURATELY DETAIL THOSE
CHARACTERISTICS OF THE BRAND NAME ITEM WHICH ARE CONSIDERED TO BE
REQUIRED TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT, SO THAT EVEN THE
BRAND NAME PRODUCT DOES NOT MEET THE REQUIREMENTS. WE HAVE HELD THAT IF
THE CITED SALIENT CHARACTERISTICS ARE NOT MATERIAL, THE BRAND NAME OR
EQUAL SOLICITATION MUST BE CONSIDERED AS UNDULY RESTRICTIVE. 44 COMP.
GEN. 302 (1964). IT FOLLOWS THAT SPECIFICATIONS WHICH ARE FOUND TO BE
UNDULY RESTRICTIVE OF COMPETITION, ARE LEGALLY DEFECTIVE, AND THE PROPER
COURSE TO FOLLOW IN THAT TYPE OF CASE IS TO READVERTISE ON THE BASIS OF
SPECIFICATIONS WHICH SET OUT THE ACTUAL NEEDS OF THE GOVERNMENT, AND
WHICH WILL THEREFORE PERMIT THE BROADEST FIELD OF COMPETITION. 33 COMP.
GEN. 567 (1954). THUS WE SAID IN 41 COMP. GEN. 348, 351 (1961):
"THE ADVERTISING STATUTES HAVE CONSISTENTLY BEEN HELD TO REQUIRE THAT
EVERY EFFORT SHOULD BE MADE BY THE PROCUREMENT AGENCIES *** TO STATE
SPECIFICATIONS IN TERMS THAT WILL PERMIT THE BROADEST FIELD OF
COMPETITION WITHIN THE NEEDS REASONABLY REQUIRED, NOT THE MAXIMUM
DESIRED. *** "
ACCORDINGLY, WE CONCUR WITH THE ACTION, AS PROPOSED BY THE DEPARTMENT
OF THE ARMY, TO CANCEL THE AWARD TO HOLT AND READVERTISE THE PROCUREMENT
UNDER SPECIFICATIONS WHICH CORRECTLY REFLECT THE DEPARTMENT'S ACTUAL
NEEDS. YOUR PROTEST ON BEHALF OF MICRODOT MUST THEREFORE BE DENIED.
B-172439, AUG 2, 1971
BID PROTEST - CONDITIONAL BID
DENIAL OF PROTEST ON BEHALF OF PYROTECHNIC SPECIALTIES, INCORPORATED
AGAINST THE AWARD OF A CONTRACT TO SIGNAL SECURITY SIGNALS, INC.
PURSUANT TO AN IFB ISSUED BY THE AMMUNITION PROCUREMENT AND SUPPLY
AGENCY FOR THE PRODUCTION AND DELIVERY OF IGNITERS. PYROTECHNIC'S BID
WAS DISQUALIFIED BECAUSE OF THE INCLUSION OF A REQUEST FOR THE USE OF 4
ADDITIONAL ITEMS OF GOVERNMENT-OWNED SPECIAL TOOLING.
ASPR, PARAGRAPH 2-404.2(D) PROVIDES THAT A BID SHOULD BE REJECTED
WHEN THE BIDDER ATTEMPTS TO IMPOSE CONDITIONS WHICH WOULD MODIFY
REQUIREMENTS OF THE INVITATION OR LIMIT HIS LIABILITY TO THE GOVERNMENT.
A WAIVER OF SUCH IRREGULARITY WILL NOT BE APPROVED BY THE COMP. GEN.
WHERE THE AMOUNT INVOLVED IS GREATER THAN $200, WHICH IS THE CASE HERE.
TO BYRD, GROOVER & BUFORD:
REFERENCE IS MADE TO YOUR LETTER DATED APRIL 2, 1971, AND TO
SUBSEQUENT CORRESPONDENCE, RELATIVE TO THE PROTEST SUBMITTED ON BEHALF
OF PYROTECHNIC SPECIALTIES, INCORPORATED, BYRON, GEORGIA, AGAINST THE
AWARD OF A CONTRACT ON MARCH 26, 1971, TO SIGNAL SECURITY SIGNALS,
INCORPORATED, CORDOVA, TENNESSEE, PURSUANT TO INVITATION FOR BIDS NO.
DAAA09-71-B-0112, ISSUED JANUARY 21, 1971, BY THE AMMUNITION PROCUREMENT
AND SUPPLY AGENCY, DEPARTMENT OF THE ARMY, JOLIET, ILLINOIS, FOR THE
PRODUCTION AND DELIVERY OF A SPECIFIED QUANTITY OF IGNITERS.
FOUR BIDS WERE RECEIVED AS OF FEBRUARY 19, 1971, THE SCHEDULED BID
OPENING DATE. THE BID OF PYROTECHNIC SPECIALTIES WAS THE LOWEST
RECEIVED AND THE BID OF SECURITY SIGNALS WAS THE NEXT LOWEST. THE
LOWEST BID QUOTED THE RESPECTIVE TOTAL AMOUNTS OF $718,011.27 AND
$718,147.80, BASED UPON DELIVERY, F.O.B. ORIGIN, PREPARED FOR SHIPMENT
BY RAIL OR MOTOR TRANSPORTATION. THE NEXT LOWEST BID QUOTED A TOTAL
PRICE OF $764,568, BASED UPON DELIVERY, F.O.B. ORIGIN, PREPARED FOR
SHIPMENT EITHER BY RAIL OR MOTOR TRANSPORTATION.
THE BID OF PYROTECHNIC SPECIALTIES WAS REJECTED BECAUSE IT WAS FOUND
TO CONTAIN A REQUEST FOR THE USE OF 4 ITEMS FOR A PERIOD OF 10 MONTHS OF
GOVERNMENT-OWNED SPECIAL TOOLING FOR THE PERFORMANCE OF THIS CONTRACT,
WHICH WAS IN ADDITION TO THE ITEMS LISTED BY THE GOVERNMENT OR OTHERWISE
CONTEMPLATED AS BEING AVAILABLE FOR USE BY THE SUCCESSFUL BIDDER ON A
RENT-FREE BASIS. YOU CONTEND THAT THE SUBMISSION BY PYROTECHNIC
SPECIALTIES OF A PARTIALLY COMPLETED FORM 1045A, LISTING FOUR ITEMS OF
USED GOVERNMENT-OWNED SPECIAL TOOLING, LATER DETERMINED AS HAVING AN
ESTIMATED COST OF $4,850, MERELY CREATED AN UNCLEAR BID, THAT THE
SUBMISSION OF THE PARTIALLY COMPLETED FORM WAS A NULLITY AND THAT IT
COULD HAVE BEEN WAIVED AS A MINOR INFORMALITY OR IRREGULARITY ON THE
BASIS THAT IT DID NOT AFFECT IN ANY SUBSTANTIAL OR MATERIAL RESPECT
EITHER THE PRICE, QUALITY, QUANTITY OR DELIVERY OF THE ITEMS CALLED FOR
IN THE INVITATION FOR BIDS. YOU ALSO CONTEND THAT THE DEPARTMENT OF THE
ARMY, ACTING THROUGH MRS. V. MILANO, CONTRACT SPECIALIST, ACTED IN SUCH
A MANNER AS TO WAIVE THE ALLEGED DEFECT IN THE BID.
PROVISIONS CONCERNING THE USE OF GOVERNMENT-OWNED PRODUCTION AND
RESEARCH PROPERTY WERE CONTAINED IN PAGES 13, 14, 15 AND 16 OF THE
INVITATION FOR BIDS. AT PAGE 13, PROSPECTIVE BIDDERS WERE ADVISED TO
THE EFFECT THAT THE GOVERNMENT WAS OFFERING EQUIPMENT LISTED ON FORMS
131 WHICH COULD BE USED BY THE SUCCESSFUL BIDDER IN PERFORMING THE
PROPOSED CONTRACT, ON A RENT-FREE BASIS. AT PAGE 14, PROVISIONS WERE
MADE WITH RESPECT TO THE PLANNED USE ON A RENT-FREE BASIS OF
GOVERNMENT-OWNED EQUIPMENT IN THE POSSESSION OF THE SUCCESSFUL BIDDER OR
IN THE POSSESSION OF HIS PROPOSED SUBCONTRACTORS OR VENDORS. AT PAGES
15 AND 16, IT WAS PROVIDED THAT A BIDDER WOULD BE REQUIRED TO SUBMIT
WITH HIS BID A LIST OF DESCRIPTION OF ALL GOVERNMENT PRODUCTION AND
RESEARCH PROPERTY WHICH THE BIDDER OR HIS ANTICIPATED SUBCONTRACTORS
PROPOSED TO USE ON A RENT-FREE BASIS. BIDDERS WERE INSTRUCTED TO
FURNISH THE LISTING ON CERTAIN ATTACHED FORMS.
PYROTECHNIC SPECIALTIES CHECKED ITEMS ON THE FORMS 131 BUT IT DID NOT
SPECIFY IN THE APPROPRIATE SPACES AT PAGE 14 THAT ITS BID WAS PREDICATED
ON THE USE OF GOVERNMENT PROPERTY IN ITS POSSESSION OR IN THE POSSESSION
OF ITS PROPOSED SUBCONTRACTORS. SINCE THE SPACES AT PAGE 14 WERE NOT
CHECKED, THERE WAS NO NECESSITY FOR PROVIDING ANY LISTING OF THE TYPE
REFERRED TO AT PAGE 15. YOU INDICATE THAT THE BIDDER SUBMITTED A
PARTIALLY COMPLETED FORM 1045A (ONE OF THE ATTACHED FORMS), BASED UPON
AN INTERPRETATION THAT A BIDDER WAS REQUIRED TO LIST ANY ITEMS THAT IT
PLANNED TO USE OR EVEN CONTEMPLATED USING IN PRODUCING THE ITEMS OF THE
PROPOSED CONTRACT.
YOU STATE THAT, WHEN MRS. MILANO MADE A TELEPHONE CALL TO A
REPRESENTATIVE OF PYROTECHNIC SPECIALTIES REGARDING ITS BID, SHE
CLARIFIED IN ALL RESPECTS THE PRESENCE OF THE PARTIALLY COMPLETED FORM
AND DEMONSTRATED BEYOND ANY QUESTION THAT ITS PRESENCE OR ABSENCE DID
NOT AFFECT THE PRICE, QUALITY, QUANTITY OR DELIVERY OF THE ITEMS CALLED
FOR AND COULD IN NO WAY PREJUDICE THE RIGHTS OF ANY OTHER BIDDERS. IT IS
YOUR FURTHER CONTENTION THAT THIS IS NOT THE CASE OF A "CONDITIONED
BID," INASMUCH AS THE COMPANY DID NOT CHECK THE SPACES AT PAGE 14 AND
THE ITEMS LISTED ON THE PARTIALLY COMPLETED FORM WERE NOT IN THE
POSSESSION OF THE COMPANY OR IN THE POSSESSION OF ITS PROPOSED
SUBCONTRACTORS OR VENDORS.
THE FORM CONTAINS THE FOLLOWING HEADING: "USED GOVERNMENT-OWNED
SPECIAL TOOLING REQUIRED FOR USE IN THE PERFORMANCE UNDER THIS
PROPOSAL." IN ADDITION TO LISTING ON THIS FORM THE 4 ITEMS OF SPECIAL
TOOLING, THE BIDDER ALSO INDICATED A 10-MONTH USE PERIOD FOR THE ITEMS -
ACQUISITION COST AND CERTAIN OTHER INFORMATION CALLED FOR ON THE FORM
WERE NOT PROVIDED BY THE BIDDER. IN OUR OPINION, THE SUBMISSION OF THIS
PARTIALLY COMPLETED FORM 1045A WAS PROPERLY CONSIDERED AS A BID
QUALIFICATION UNDER WHICH THE BIDDER COULD HAVE REFUSED AN AWARD IF THE
GOVERNMENT DID NOT AGREE TO FURNISH THE ITEMS OF SPECIAL TOOLING LISTED
ON THE FORM, FOR USE IN PERFORMING THE PROPOSED CONTRACT.
IT DOES NOT APPEAR THAT THE DEPARTMENT OF THE ARMY ACTED IN SUCH A
MANNER AS TO WAIVE THE ALLEGED DEFECT IN THE BID, ALTHOUGH YOU INDICATE
THAT THE ELEMENT OF PRICE EFFECT WAS DISCUSSED IN A TELEPHONE
CONVERSATION BETWEEN MRS. MILANO AND A REPRESENTATIVE OF PYROTECHNIC
SPECIALTIES. IT IS APPARENT THAT MRS. MILANO DID NOT HAVE THE AUTHORITY
IN HER OWN RIGHT TO WAIVE ANY VARIATION OR DEFECT IN THE BID OF
PYROTECHNIC SPECIALTIES.
PARAGRAPH 2-404.2(D) OF THE ARMED SERVICES PROCUREMENT REGULATION
PROVIDES IN PART AS FOLLOWS:
"ORDINARILY, A BID SHOULD BE REJECTED WHEN THE BIDDER ATTEMPTS TO
IMPOSE CONDITIONS WHICH WOULD MODIFY REQUIREMENTS OF THE INVITATION FOR
BIDS OR LIMIT HIS LIABILITY TO THE GOVERNMENT, SINCE TO ALLOW THE BIDDER
TO IMPOSE SUCH CONDITIONS WOULD BE PREJUDICIAL TO OTHER BIDDERS.
"A LOW BIDDER MAY BE REQUESTED TO DELETE OBJECTIONABLE CONDITIONS
FROM HIS BID PROVIDED THESE CONDITIONS DO NOT GO TO THE SUBSTANCE, AS
DISTINGUISHED FROM THE FORM, OF THE BID, OR WORK AN INJUSTICE ON OTHER
BIDDERS. A CONDITION GOES TO THE SUBSTANCE OF A BID WHERE IT AFFECTS
PRICE, QUANTITY, QUALITY OR DELIVERY OF THE ITEMS OFFERED."
BASED ON A RENTAL RATE OF 1 PERCENT PER MONTH FOR SPECIAL TOOLING AS
CONTAINED IN SECTION D OF THE SOLICITATION, IT APPEARS THAT THE
EVALUATION FACTOR FOR THE $4,850 ADDITIONAL TOOLING REQUESTED BY
PYROTECHNIC WOULD BE APPROXIMATELY $485 FOR 10 MONTHS USE. IN FACT IT
APPEARS THE CONTRACTING OFFICER CONSIDERED THAT THE SPECIAL TOOLING
REQUESTED SHOULD BE EVALUATED AT THE TOTAL ESTIMATED COST RATHER THAN
10-MONTH RENTAL VALUE. IN A LEGAL OPINION BY THE JUDGE ADVOCATE UPON
WHICH HE BASED HIS DETERMINATION, A COPY OF WHICH WAS SUPPLIED TO YOU BY
OUR OFFICE, IT WAS STATED:
"IT IS ESTIMATED THAT THE ADDITIONAL SPECIAL TOOLING REQUESTED BY
PYROTECHNIC WOULD COST $4,850.00. IN 44 COMP GEN 753 (1965), IT WAS
STATED THAT ONLY THOSE INFORMALITIES WHICH ARE DE-MINIMIS SHOULD EVER BE
WAIVED. AFTER A SUMMARIZATION OF PRECEDING DECISIONS INVOLVING THE
EFFECT OF INFORMALITIES UPON PRICE, IT WAS OBSERVED THAT WAIVERS OF
MINOR INFORMALITIES HAD NEVER BEEN APPROVED WHERE THE AMOUNT OF
DEVIATION WAS AS MUCH AS $200.00. THE COMPTROLLER GENERAL, IN APPLYING
THE DE-MINIMIS RULE, STATED:
"ON THE OTHER HAND, WE WOULD NOT BE INCLINED IN THE ORDINARY CASE TO
CONSIDER A POSSIBLE DEVIATION OF $1,000 OR MORE AS TRIVIAL OR
INSIGNIFICANT IN THE AREA UNDER CONSIDERATION, NO MATTER HOW SMALL A
FRACTION OF THE TOTAL COST OR BID DIFFERENCE MIGHT BE. ID. AT 756.
"IN THE LIGHT OF THE COMPTROLLER GENERAL'S HOLDING, PYROTECHNIC'S
REQUEST FOR ADDITIONAL SPECIAL TOOLING HAS A SUBSTANTIAL EFFECT ON THE
PRICE OF THE SUPPLIES BEING PROCURED. ALLOWING PYROTECHNIC, AFTER THE
OPENING OF BIDS, TO DELETE ITS REQUEST FOR ADDITIONAL SPECIAL TOOLING
WOULD BE TANTAMOUNT TO PERMITTING THE SUBMISSION OF A NEW BID. 46 COMP
GEN 418 (1966). TO AWARD THE PROPOSED CONTRACT TO PYROTECHNIC UPON THE
BASIS OF ITS BID WOULD VIOLATE THE LONG RECOGNIZED RULE THAT THE
CONTRACT AWARDED THE SUCCESSFUL BIDDER MUST BE THE CONTRACT OFFERED TO
ALL BIDDERS. 38 COMP GEN 508 (1959)."
ALTHOUGH THE JUDGE ADVOCATE USED AN INCORRECT STANDARD IN MEASURING
THE PRICE EFFECT OF THE IRREGULARITY IN PYROTECHNIC'S BID, HE WAS
CORRECT IN OBSERVING THAT WAIVERS HAVE NOT BEEN APPROVED BY OUR OFFICE
WHERE THE AMOUNT INVOLVED WAS AS MUCH AS $200. UNDER THE CIRCUMSTANCES,
WE CANNOT CONCLUDE THAT THE CONTRACTING OFFICER ACTED CONTRARY TO THE
REGULATION IN REFUSING TO WAIVE THE DEFECT IN PYROTECHNIC'S BID.
IN THE CIRCUMSTANCES, WE WOULD NOT BE WARRANTED IN TAKING EXCEPTION
TO THE REJECTION OF THE BID OF PYROTECHNIC SPECIALTIES. ACCORDINGLY,
THE PROTEST SUBMITTED ON ITS BEHALF IS HEREBY DENIED.
B-173075, AUG 2, 1971
RELIEF OF LIABILITY OF POSTAL CLERKS
DECISION RELIEVING CERTAIN POSTAL CLERKS AT THE FLUSHING, NEW YORK
POST OFFICE OF LIABILITY FOR ACCEPTING AND DISTRIBUTING A MAILING OF
"PENNYSAVER OF KINGS AND QUEENS" WITH ONLY 16 PAGES, SINCE PREVIOUS
MAILINGS OF THE PUBLICATION HAD ALWAYS CONTAINED THE REQUIRED NUMBER OF
PAGES AND AS THE SAMPLE MARKED COPIES OF THE MAILING IN QUESTION DID
CONTAIN THE REQUIRED 24 PAGES.
TO MR. POSTMASTER GENERAL:
REFERENCE IS MADE TO THE LETTER OF JULY 14, 1971, FROM THE DIRECTOR,
ACCOUNTING SERVICES DIVISION, FINANCE AND ADMINISTRATION DEPARTMENT,
POSTAL SERVICE, IN WHICH WE ARE ASKED TO GIVE FAVORABLE CONSIDERATION TO
A REQUEST DATED MAY 5, 1971, FROM MR. JOHN J. HOGAN, POSTMASTER AT
FLUSHING, NEW YORK, THAT WE RECONSIDER OUR PRIOR DETERMINATION THAT SOME
UNIDENTIFIED CLERKS AT TWO OF THE STATIONS OF HIS POST OFFICE, WHO
ACCEPTED 16-PAGE EDITIONS OF THE "PENNYSAVER OF KINGS AND QUEENS" WERE
NEGLIGENT IN FAILING TO ASSURE THEMSELVES THAT THE EDITIONS CONTAINED
THE MINIMUM REQUIRED 24 PAGES. WE HAD PREVIOUSLY RELIEVED POSTMASTER
HOGAN OF PERSONAL LIABILITY FOR THE DEFICIENCY SINCE HE DID NOT, NOR WAS
HE REQUIRED OR EXPECTED TO, INSPECT THE MAILINGS TO DETERMINE IF THEY
QUALIFIED FOR REGULAR CONTROLLED CIRCULATION RATES AND THAT, THEREFORE,
THE DEFICIENCY DID NOT OCCUR AS A RESULT OF HIS NEGLIGENCE.
THE CASE FILE NOW SHOWS THAT THE PUBLISHER BEGAN MAKING WEEKLY
MAILINGS ON JANUARY 15, 1968, AND THAT ALL SUCH MAILINGS CONTAINED THE
REQUIRED 24 PAGES. IN THE INSTANT MAILING THE PUBLISHER DROPPED THE
MAILINGS OFF AFTER WORK HOURS, AT FOUR DIFFERENT STATIONS IN ORDER TO
EXPEDITE THE HANDLING. THE COVER PAGES WERE IDENTICAL IN THE MAILINGS
AT EACH STATION AND THE SAMPLE MARKED COPY CONTAINED THE REQUIRED 24
PAGES. THE CLERKS VERIFIED THE CASH DEPOSIT BALANCE AND DISTRIBUTED THE
MAILING PROMPTLY. IT WAS ONLY AFTER DISTRIBUTION THAT IT WAS DISCOVERED
THAT THE ISSUE IN QUESTION WAS MAILED IN TWO DIFFERENT SIZES, WITH
IDENTICAL COVER SHEETS, THE ISSUE CONSISTING OF 24 PAGES AT TWO OF THE
STATIONS AND ONLY 16 PAGES IN THE MAILING DISTRIBUTED AT THE OTHER TWO
STATIONS.
SINCE THE MAILINGS HAD ALWAYS CONTAINED THE REQUIRED NUMBER OF PAGES,
THE COVER SHEETS ON ALL MAILINGS WERE IDENTICAL, AND THE SAMPLE MARKED
COPY CONTAINED THE REQUIRED 24 PAGES, THE DIRECTOR OF THE ACCOUNTING
SERVICE DIVISION STATES THAT THE CLERKS INVOLVED HAD ACTED REASONABLY
AND THAT THE LOSS OCCURRED WITHOUT NEGLIGENCE ON THE PART OF THE
POSTMASTER AND HIS STAFF.
ALTHOUGH THE MATTER IS NOT FREE FROM DOUBT, IN VIEW OF THE PARTICULAR
FACTS AND CIRCUMSTANCES OF THIS CASE, WE ARE NOTIFYING OUR CIVIL
DIVISION THAT RELIEF MAY BE GRANTED TO THE CLERKS INVOLVED.
B-173111, AUG 2, 1971
CIVILIAN EMPLOYEE - REINSTATEMENT TO POSITION - EXCESS ANNUAL LEAVE
DENIAL OF CLAIM ON BEHALF OF MR. HENRY BRIONES FOR CREDIT FOR ANNUAL
LEAVE FORFEITED UPON HIS REINSTATEMENT TO HIS POSITION WITH THE
DEPARTMENT OF THE ARMY AS DIRECTED BY THE CIVIL SERVICE COMMISSION.
UNDER SECTION 5596(B), TITLE 5 U.S. CODE, AN EMPLOYEE WHO IS ENTITLED
TO RESTORATION BENEFITS MAY NOT BE CREDITED WITH LEAVE IN AN AMOUNT THAT
WOULD CAUSE THE AMOUNT OF LEAVE CREDITED TO EXCEED THAT AUTHORIZED BY
LAW. THE COMP. GEN. HAS CONSISTENTLY HELD THAT THIS STATUTORY PROVISION
REQUIRES THE FORFEITURE OF ALL ANNUAL LEAVE EXCESS TO THE MAXIMUM
ALLOWED AT THE CLOSE OF A LEAVE YEAR IRREGARDLESS OF THE REASON FOR THE
EMPLOYEE'S FAILURE TO USE THE LEAVE.
TO MR. FRANK WALTJEN:
REFERENCE IS MADE TO YOUR LETTER OF MAY 22, 1971, WRITTEN IN BEHALF
OF MR. HENRY BRIONES, AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY,
PRESIDIO OF SAN FRANCISCO, CALIFORNIA, AND REQUESTING A REVIEW BY THIS
OFFICE OF THE RECORD WITH RESPECT TO MR. BRIONES' RESTORATION TO DUTY
AND ENTITLEMENT TO CREDIT FOR ANNUAL LEAVE FORFEITED UPON HIS
REINSTATEMENT TO HIS POSITION AS DIRECTED BY THE UNITED STATES CIVIL
SERVICE COMMISSION.
IT APPEARS FROM YOUR LETTER AND ATTACHMENTS THAT MR. BRIONES, AFTER
RESTORATION TO DUTY FOLLOWING AN UNJUSTIFIED REMOVAL, RECEIVED BACK PAY
IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C.5596. HOWEVER, LEAVE IN
EXCESS OF HIS ANNUAL LEAVE CEILING WAS FORFEITED AND YOU NOW QUESTION
SUCH FORFEITURE. YOU PARTICULARLY QUESTION THE FORFEITURE BECAUSE
ADMINISTRATIVE ACTION TO RESTORE MR. BRIONES WAS DELAYED AFTER THE
FINAL DECISION OF THE CIVIL SERVICE COMMISSION IN THE MATTER.
OUR OFFICE HAS NO JURISDICTION OVER MATTERS INVOLVING REINSTATEMENT
TO POSITIONS OR RESTORATION TO DUTY, THESE MATTERS BEING FOR THE
CONSIDERATION OF THE ADMINISTRATIVE OFFICE CONCERNED AND THE CIVIL
SERVICE COMMISSION. MOREOVER, WE ARE NOT AWARE OF ANY LAW OR REGULATION
WHICH REQUIRES AN AGENCY TO TAKE THE RESTORATION ACTION AS RECOMMENDED
BY THE CIVIL SERVICE COMMISSION WITHIN A SPECIFIC TIME LIMIT. IF SUCH
ACTION IS NOT TAKEN WITHIN A REASONABLE TIME WE PRESUME SUCH RESTORATION
COULD BE ENFORCED BY APPROPRIATE COURT PROCEEDINGS.
IN REGARD TO THE FORFEITURE OF ANNUAL LEAVE, SECTION 5596(B) OF TITLE
5, UNITED STATES CODE, PROVIDES THAT AN EMPLOYEE WHO IS ENTITLED TO BACK
PAY AND OTHER RESTORATION BENEFITS PROVIDED THEREUNDER MAY NOT BE
CREDITED WITH LEAVE IN AN AMOUNT THAT WOULD CAUSE THE AMOUNT OF LEAVE TO
HIS CREDIT TO EXCEED THE MAXIMUM AMOUNT AUTHORIZED BY LAW OR REGULATION.
WHILE THE RECORD BEFORE US DOES NOT SHOW, IT IS PRESUMED MR. BRIONES
HAD AN ANNUAL LEAVE CEILING OF 240 HOURS. THEREFORE, IN THE
RECONSTRUCTION OF HIS LEAVE ACCOUNT FOLLOWING THE CANCELLATION OF THE
SUSPENSION ACTION, HE WOULD BE PROHIBITED BY STATUTE (5 U.S.C. 6304(A))
FROM RECEIVING CREDIT FOR MORE THAN 240 HOURS OF ANNUAL LEAVE AT THE
BEGINNING OF THE LEAVE YEAR. CONSEQUENTLY, HE WAS REQUIRED TO FORFEIT A
TOTAL OF 288 HOURS OF ANNUAL LEAVE, 80 HOURS IN 1969 AND 208 HOURS IN
1970.
WE HAVE CONSISTENTLY HELD THAT THE ABOVE-CITED STATUTORY PROVISION
REQUIRES THE FORFEITURE OF ALL ANNUAL LEAVE CREDITED TO AN EMPLOYEE AT
THE CLOSE OF A LEAVE YEAR WHICH IS IN EXCESS OF THE CEILING ESTABLISHED
THEREIN REGARDLESS OF THE REASON FOR THE EMPLOYEE'S FAILURE TO USE SUCH
EXCESS LEAVE. 32 COMP. GEN. 162 (1952); 36 ID. 596 (1957); AND 48 ID.
572 (1969). THE FACT THAT MR. BRIONES WOULD HAVE HAD AN OPPORTUNITY TO
USE THE LEAVE IF THE DEPARTMENT OF THE ARMY HAD TIMELY RESTORED HIM TO
DUTY INSTEAD OF WAITING UNTIL AFTER THE END OF THE LEAVE YEAR AFFORDS NO
BASIS FOR ANY DIFFERENT VIEW.
ACCORDINGLY, MR. BRIONES IS NOT ENTITLED TO BE CREDITED WITH THE
LEAVE OR ENTITLED TO PAYMENT THEREFOR.
B-173152, AUG 2, 1971
CIVILIAN EMPLOYEE - PURCHASE OF RESIDENCE - RECLAIM VOUCHER
DECISION THAT A RECLAIM VOUCHER IN THE AMOUNT OF $451.15 IN FAVOR OF
ROBERT NEDELMAN FOR REIMBURSEMENT OF REAL ESTATE EXPENSES INCURRED
INCIDENT TO A CHANGE OF STATIONS, MAY NOT BE CERTIFIED FOR PAYMENT.
THERE IS NO BASIS UNDER SECTION 4.2 OMB CIR. NO. A-56 FOR PAYMENT OF
BOOKKEEPING, OVERHEAD, CLERICAL AND MISCELLANEOUS EXPENSES OF A LOANING
INSTITUTION INCIDENT TO THE PURCHASE OF A RESIDENCE.
FURTHER, THE PAYMENT OF $146.50 ON THE ORIGINAL VOUCHER SHOULD BE
RECOVERED BECAUSE THE ITEM, "ATTORNEY FOR THE BANK" WAS NOT FURTHER
DESCRIBED. SEE 48 COMP. GEN. 469 (1969).
TO MRS. DOLORES T. HODGES:
REFERENCE IS MADE TO YOUR LETTER OF MAY 28, 1971, WITH ENCLOSURES,
REQUESTING OUR DECISION AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT A
RECLAIM VOUCHER IN THE AMOUNT OF $451.15 IN FAVOR OF MR. ROBERT
NEDELMAN, FOR REIMBURSEMENT OF CERTAIN REAL ESTATE EXPENSES INCURRED IN
CONNECTION WITH THE PURCHASE OF A RESIDENCE AT HIS NEW DUTY STATION
INCIDENT TO HIS TRANSFER FROM THE NEW YORK AREA OFFICE TO CORAL GABLES,
FLORIDA.
THE $451.15 REPRESENTS VARIOUS CHARGES, THE REIMBURSEMENT OF WHICH
WAS ADMINISTRATIVELY DISALLOWED. THE CHARGES ARE DESCRIBED AS THE
BANK'S TITLE INSURANCE POLICY, BOOKKEEPING, OVERHEAD, CLERICAL, AND
MISCELLANEOUS AND THE FOLLOWING STATEMENT WAS INCLUDED ON THE VOUCHER:
"THIS IS NOT CONSIDERED BY THE BANK A SERVICE OR FINANCE CHARGE, BUT A
NORMAL EXPENSE ON ALL MORTGAGES ISSUED BY THEM."
THE ENCLOSURES WITH THE VOUCHER SHOW THAT OF THE $1,038.50 ORIGINALLY
CLAIMED BY MR. NEDELMAN, $972 OF WHICH WAS DESCRIBED AS "4% CLOSING
COSTS," $587.65 HAS BEEN ALLOWED. THE ITEMS ADMINISTRATIVELY ALLOWED,
APPARENTLY BASED UPON ADDITIONAL INFORMATION CONCERNING THE "4% CLOSING
COSTS," ARE FOR TITLE PREPARATION, ABSTRACT COSTS, RECORDING, SURVEY,
MORTGAGE TAX, AND "ATTORNEY FOR THE BANK." THIS LAST ITEM, IN THE AMOUNT
OF $146.50, WAS NOT FURTHER DESCRIBED AND, THEREFORE, THE ADMINISTRATIVE
ACTION APPEARS ERRONEOUS BASED ON THE PRESENT RECORD. SEE 48 COMP. GEN.
469 (1969). ACCORDINGLY, RECOVERY OF THAT AMOUNT SHOULD BE EFFECTED.
IN REGARD TO BALANCE NOW CLAIMED, $450.85 (BALANCE ERRONEOUSLY STATED
ON VOUCHER AS $451.15), THERE IS NO BASIS UNDER THE GOVERNING
REGULATION, SECTION 4.2 OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO.
A-56, REVISED JUNE 26, 1969, FOR PAYMENT OF "BOOKKEEPING, OVERHEAD,
CLERICAL AND MISCELLANEOUS" EXPENSES OF A LOANING INSTITUTION INCIDENT
TO THE PURCHASE OF A RESIDENCE. CF. B-170661, SEPTEMBER 16, 1970, COPY
ENCLOSED.
AS TO THE $20 CHARGE FOR THE BANK'S TITLE INSURANCE POLICY, IF SUCH
CHARGE IS FOR A MORTGAGE TITLE POLICY, REIMBURSEMENT WOULD BE PROPER
UNDER SECTION 4.2D OF CIRCULAR NO. A-56. FURTHER INFORMATION SHOULD BE
OBTAINED BY YOU IN THIS REGARD BEFORE CERTIFICATION.
THE VOUCHER IS RETURNED HEREWITH FOR HANDLING IN ACCORDANCE WITH THE
FOREGOING.
B-173226, AUG 2, 1971
CIVILIAN EMPLOYEES - HOME LEAVE FOR TERRITORY RESIDENTS
DECISION ALLOWING CLAIM OF MR. WALTER C. WATSON, AN FAA EMPLOYEE,
REPRESENTING CONSTRUCTIVE COST OF TRAVEL EXPENSES INCIDENT TO HOME
LEAVE.
THE PREVIOUS RULE ESTABLISHED IN 37 COMP. GEN. 119 (1957) THAT
EMPLOYEES RESIDENT IN ONE TERRITORY AND STATIONED IN ANOTHER TERRITORY
COULD NOT BE PAID HOME LEAVE TRAVEL EXPENSES TO THE UNITED STATES IS
OVERRULED DUE TO CHANGE IN GOVERNING LAW AND REGULATIONS. PAYMENT IS
NOT TO EXCEED WHAT WOULD HAVE BEEN ALLOWED FROM AN EMPLOYEE'S POST TO
HIS ACTUAL PLACE OF RESIDENCE.
TO MR. R. J. SCHULLERY:
THIS REFERS TO YOUR LETTER OF JUNE 8, 1971, WITH ENCLOSURES, AS TO
WHETHER YOU MAY CERTIFY FOR PAYMENT THE ENCLOSED VOUCHER IN THE AMOUNT
OF $112.35, IN FAVOR OF MR. WALTER C. WATSON, AN EMPLOYEE OF THE
FEDERAL AVIATION ADMINISTRATION REPRESENTING PARTIAL CONSTRUCTIVE COST
OF TRAVEL EXPENSES INCIDENT TO HOME LEAVE.
MR. WATSON'S OFFICIAL STATION IS BALBOA, CANAL ZONE, AND HIS
RESIDENCE OF RECORD IS THE VIRGIN ISLANDS. BY TRAVEL ORDER DATED
OCTOBER 2, 1970, HE AND HIS WIFE WERE AUTHORIZED TO TRAVEL FROM BALBOA,
CANAL ZONE, TO ST. THOMAS, VIRGIN ISLANDS, AND RETURN FOR HOME LEAVE.
IN LIEU OF TRAVELING TO THE VIRGIN ISLANDS, MR. WATSON AND HIS WIFE
TRAVELED TO THE CONTINENTAL UNITED STATES (LOS ANGELES, CALIFORNIA, AND
MIAMI, FLORIDA).
YOU SAY THAT OUR DECISIONS 37 COMP. GEN. 119 (1957) AND B-160762,
FEBRUARY 28, 1967, MAY PROHIBIT PAYMENT OF THE CLAIM BUT THAT SUCH
DECISIONS APPEAR TO BE IN CONFLICT WITH SECTION 7.2 OF OFFICE OF
MANAGEMENT AND BUDGET CIRCULAR NO. A-56.
THE STATUTORY AUTHORITY FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION
EXPENSES OF EMPLOYEES TO TAKE LEAVE BETWEEN SUCCESSIVE ASSIGNMENTS
OVERSEAS IS 5 U.S.C. 5728(A) WHICH PROVIDES:
"UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AN AGENCY
SHALL PAY FROM ITS APPROPRIATIONS THE EXPENSES OF ROUND-TRIP TRAVEL OF
AN EMPLOYEE, AND THE TRANSPORTATION OF HIS IMMEDIATE FAMILY, BUT NOT
HOUSEHOLD GOODS, FROM HIS POST OF DUTY OUTSIDE THE CONTINENTAL UNITED
STATES TO THE PLACE OF HIS ACTUAL RESIDENCE AT THE TIME OF APPOINTMENT
OR TRANSFER TO THE POST OF DUTY, AFTER HE HAS SATISFACTORILY COMPLETED
AND AGREED PERIOD OF SERVICE OUTSIDE THE CONTINENTAL UNITED STATES AND
IS RETURNING TO HIS ACTUAL PLACE OF RESIDENCE TO TAKE LEAVE BEFORE
SERVING ANOTHER TOUR OF DUTY AT THE SAME OR ANOTHER POST OF DUTY OUTSIDE
THE CONTINENTAL UNITED STATES UNDER A NEW WRITTEN AGREEMENT MADE BEFORE
DEPARTING FROM THE POST OF DUTY."
THE REGULATIONS IMPLEMENTING THAT AUTHORITY ARE CONTAINED IN SECTION
7 OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56 AND SUBSECTION
7.2 READS IN PART AS FOLLOWS:
" *** IF LEAVE IS TAKEN AT ANOTHER LOCATION WITHIN THE 50 STATES AND
THE DISTRICT OF COLUMBIA, OR IN A UNITED STATES TERRITORY OR POSSESSION,
OR THE COMMONWEALTH OF PUERTO RICO, OR IN ANOTHER COUNTRY IN WHICH THE
PLACE OF ACTUAL RESIDENCE IS LOCATED, THE AMOUNT ALLOWED FOR TRAVEL AND
TRANSPORTATION EXPENSES SHALL NOT EXCEED THAT WHICH WOULD BE ALLOWED FOR
TRAVEL OVER A USUALLY TRAVELED ROUTE FROM THE POST OF DUTY TO THE PLACE
OF ACTUAL RESIDENCE AND FOR RETURN TO THE SAME OR A DIFFERENT POST OF
DUTY OUTSIDE THE CONTINENTAL UNITED STATES."
IN OUR DECISION OF FEBRUARY 28, 1967, WE MADE SPECIFIC REFERENCE TO
OUR PREVIOUS RULING IN 37 COMP. GEN. 119 (1957). WE POINTED OUT THAT
SUCH RULING, TO THE EFFECT THAT AN EMPLOYEE STATIONED IN A TERRITORY
WHOSE RESIDENCE WAS IN ANOTHER TERRITORY COULD NOT BE AUTHORIZED HOME
LEAVE TRAVEL EXPENSE TO THE CONTINENTAL UNITED STATES, WAS BASED ON THE
WORDING OF THE REGULATIONS THEN PREVAILING; ALSO, THAT SINCE THE
WORDING OF THE REGULATIONS HAD SUBSEQUENTLY BEEN CHANGED AS QUOTED ABOVE
A DIFFERENT VIEW WAS NOT PRECLUDED.
THE LAW AND REGULATIONS APPEAR TO CONTEMPLATE THAT AN EMPLOYEE
RESIDING IN A TERRITORY OR POSSESSION WHOSE OFFICIAL STATION IS IN
ANOTHER TERRITORY OR POSSESSION SUCH AS HERE MAY HAVE HIS EXPENSES PAID
FOR LEAVE TRAVEL TO THE CONTINENTAL UNITED STATES OR ANY OTHER TERRITORY
OR POSSESSION NOT IN EXCESS OF WHAT WOULD HAVE BEEN ALLOWED FROM HIS
POST OF DUTY TO HIS ACTUAL PLACE OF RESIDENCE IN A TERRITORY OR
POSSESSION OF THE UNITED STATES.
ACCORDINGLY, ACTION ON THE VOUCHER WHICH IS RETURNED HEREWITH SHOULD
BE TAKEN IN ACCORDANCE WITH THE FOREGOING.
B-171313, JUL 30, 1971
BID PROTEST - MAXIMUM ORDER LIMITATION - AMBIGUOUS CLAUSE
DECISION DENYING PROTEST OF AIKEN INDUSTRIES, INC. AGAINST A PURCHASE
ORDER ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION TO VU
DATA CORPORATION FOR THE PROCUREMENT OF MONITOR OSCILLOSCOPES AND
ASSOCIATED EQUIPMENT. THE RECORD INDICATES THAT VU DATA BELIEVED THE
MAXIMUM ORDER LIMITATION CLAUSE WAS AMBIGUOUS AND THAT THEY SOUGHT
CLARIFICATION OF THIS AMBIGUITY FROM THE CONTRACTING OFFICER AND THE
GENERAL SERVICES ADMINISTRATION. UNDER THESE CIRCUMSTANCES, THE COMP.
GEN. DOES NOT BELIEVE THAT THE GOVERNMENT CAN NOW INSIST UPON AN
INTERPRETATION OF THE CLAUSE DETRIMENTAL TO VU DATA.
TO COLE AND GRONER:
WE REFER TO YOUR LETTER DATED NOVEMBER 18, 1970, AND OTHER
CORRESPONDENCE, ON BEHALF OF AIKEN INDUSTRIES, INCORPORATED, PROTESTING
AGAINST PURCHASE ORDER NO. S-61176A, ISSUED BY THE NATIONAL AERONAUTICS
AND SPACE ADMINISTRATION (NASA) ON SEPTEMBER 30, 1970, TO VU DATA
CORPORATION (VU DATA). THE SUBJECT ORDER IN THE SUM OF $81,606.20,
$79,667 OF WHICH WAS FOR 28 MONITOR OSCILLOSCOPES AND THE REMAINDER FOR
CERTAIN MINOR ASSOCIATED EQUIPMENT, WAS ISSUED UNDER GENERAL SERVICES
ADMINISTRATION (GSA) FEDERAL SUPPLY SCHEDULE CONTRACT NO. GS-00S-86675.
THE BASIS OF YOUR PROTEST IS THAT THE SUBJECT PURCHASE ORDER IS IN
DEROGATION OF SUBPARAGRAPH (A)(2) OF SPECIAL PROVISION 1 IN THE BASIC
GSA CONTRACT WHICH LIMITS ORDERS THEREUNDER TO $50,000 FOR SINGLE ITEMS
AND $100,000 FOR COMBINATION OF ITEMS.
THE ADMINISTRATIVE REPORT INDICATES THAT IT WAS DETERMINED AT NASA
HEADQUARTERS ON NOVEMBER 18, 1970, THAT THE ORDER HAD BEEN IMPROPERLY
ISSUED AND SHOULD BE CANCELLED IMMEDIATELY. THIS INFORMATION WAS
RELAYED TO A REPRESENTATIVE OF VU DATA WHO AFTER CONSIDERING THE MATTER
ADVISED THAT THE ORDER WOULD BE RETURNED. HOWEVER, THE NEXT DAY COUNSEL
FOR VU DATA ADVISED THAT THE ORDER WOULD NOT BE RETURNED. ON NOVEMBER
20 AFTER A MEETING WITH NASA PERSONNEL, VU DATA ADVISED IN WRITING THAT
THEY WOULD INCUR NO FURTHER COST AND MAKE NO FURTHER DELIVERIES PENDING
RESOLUTION OF THE MATTER. AT THAT TIME VU DATA HAD COMPLETED AND
SHIPPED 11 UNITS AND THE REMAINING UNITS WERE ESTIMATED TO BE 90 PERCENT
COMPLETE.
THE PERTINENT PROVISION OF THE FEDERAL SUPPLY SCHEDULE CONTRACT
STATES:
"(2) MAXIMUM ORDER LIMITATION. THE TOTAL DOLLAR VALUE OF ANY ORDER
PLACED UNDER THIS CONTRACT SHALL NOT EXCEED THE AMOUNTS SHOWN BELOW,
PROVIDED, THAT THE DOLLAR VALUE FOR ANY SINGLE ITEM ORDERED, WHETHER
ORDERED SEPARATELY OR IN COMBINATION WITH OTHER ITEMS, SHALL NOT EXCEED
THE DOLLAR AMOUNTS SET FORTH BELOW IN THE ITEMS INDICATED. THE
CONTRACTOR AGREES NOT TO ACCEPT OR FULFILL ANY ORDERS IN VIOLATION OF
THIS PROVISION. VIOLATION MAY RESULT IN TERMINATION OF THE CONTRACT
PURSUANT TO THE CLAUSE OF THE GENERAL PROVISIONS ENTITLED 'DEFAULT.'
SINGLE COMBINATION
ITEM OF ITEMS
CHARTS, RECORDING $20,000 $ 35,000
RECORDERS, ANALOG $20,000 $ 50,000
OSCILLOSCOPES AND OSCILLOGRAPHS $50,000 $100,000"
YOU CONTEND THAT THE SUBJECT PURCHASE ORDER WAS ISSUED IN VIOLATION
OF THE MAXIMUM ORDER LIMITATION CLAUSE (MOL) OF THE GSA CONTRACT AND
THEREFORE THE ORDER MUST BE CANCELLED AND A COMPETITIVE REPROCUREMENT
SOLICITED FOR THE TOTAL QUANTITY. ON THE OTHER HAND, COUNSEL FOR VU
DATA CONTENDS THAT THE MOL IS AMBIGUOUS AND AS SUCH SHOULD BE CONSTRUED
AGAINST THE GOVERNMENT AND THE ORDER UPHELD, AS ISSUED, PURSUANT TO VU
DATA'S REASONABLE INTERPRETATION OF THE MOL. IN THE ALTERNATIVE, VU
DATA'S COUNSEL CONTENDS THAT IF THE ORDER IS HELD TO HAVE BEEN ISSUED IN
VIOLATION OF THE MOL, THEN VU DATA SHOULD BE COMPENSATED PURSUANT TO THE
DOCTRINE OF QUANTUM VALEBAT FOR THE ENTIRE VALUE OF THE ORDER.
MORE SPECIFICALLY, COUNSEL FOR VU DATA CONTENDS THAT THE ORDER MUST
BE UPHELD BASED UPON THE PREMISE THAT ALTHOUGH THE TERM "ITEM" IN THE
COLUMNS OF THE MOL ENTITLED "SINGLE ITEM" AND "COMBINATION OF ITEMS"
REFERS TO LINE ITEMS, IT WAS REASONABLE FOR VU DATA TO CONCLUDE THAT THE
PHRASE "SINGLE ITEM" APPEARING IN THE TEXT OF THE MOL WAS INTENDED TO
DENOTE A SINGLE UNIT IN THE CATEGORY OF OSCILLOSCOPES. IN THE
ALTERNATIVE, COUNSEL FOR VU DATA ARGUES THAT SINCE MULTIPLE ITEMS ARE
INVOLVED IT WAS REASONABLE FOR THAT FIRM TO ASSUME THAT THE $100,000
LIMITATION COULD BE APPLIED TO THE ITEM, OSCILLOSCOPES, RATHER THAN THE
TOTAL VALUE OF THE COMBINATION ORDER. THESE CONTENTIONS ARE PUT FORTH
IN SUPPORT OF COUNSEL'S ARGUMENT FOR APPLICATION OF THE DOCTRINE THAT A
REASONABLE INTERPRETATION BY A NONDRAFTING PARTY OF AN AMBIGUOUS CLAUSE
IS BINDING ON THE DRAFTING PARTY.
WE BELIEVE THERE IS A REASONABLE BASIS FOR VU DATA'S CONTENTION THAT
THE ABOVE-QUOTED PORTION OF THE CONTRACT IS AMBIGUOUS. THE RECORD SHOWS
THAT VU DATA SOUGHT CLARIFICATION OF THIS AMBIGUITY FROM THE GOVERNMENT.
IT SHOWS FURTHER THAT THE NASA CONTRACTING OFFICER DISCUSSED THE
MAXIMUM ORDER LIMITATION WITH THE GSA CONTRACTING OFFICER BEFORE PLACING
THE DELIVERY ORDER, AND WAS UNDER THE IMPRESSION THE ORDER WAS PROPER.
UNDER THE CIRCUMSTANCES, WE DO NOT BELIEVE THE GOVERNMENT CAN NOW INSIST
UPON AN INTERPRETATION OF THE AMBIGUOUS LANGUAGE DETRIMENTAL TO VU DATA.
WE FEEL THAT HIS MOL CLAUSE SHOULD BE SUBJECT TO THE FAMILIAR RULE
WHICH HOLDS THAT WHEN A SUBSTANTIVE PROVISION OF A GOVERNMENT-DRAWN
AGREEMENT IS FAIRLY SUSCEPTIBLE OF A CERTAIN CONSTRUCTION AND THE
CONTRACTOR ACTUALLY AND REASONABLY SO CONSTRUES THE CLAUSE, THAT
INTERPRETATION WILL BE ADOPTED UNLESS THE PARTIES' INTENTION IS
OTHERWISE AFFIRMATIVELY REVEALED. WPC ENTERPRISES, INCORPORATED V
UNITED STATES, 323 F. 2D 874, 177 CT. CL. 1084 (1964).
IN THESE CIRCUMSTANCES, WHERE IT IS EVIDENT FROM THE RECORD THAT VU
DATA WAS MISLED BY THE GOVERNMENT INTO INCURRING CONSIDERABLE EXPENSE WE
FEEL THAT IT WOULD BE MANIFESTLY UNFAIR FOR THIS OFFICE TO RECOMMEND
THAT THE ORDER BE CANCELED AT THIS TIME. ACCORDINGLY, IT IS OUR
CONCLUSION THAT YOUR PROTEST MUST, THEREFORE, BE DENIED.
B-173414, JUL 30, 1971
CIVILIAN EMPLOYEE - DISTRIBUTION OF UNPAID COMPENSATION OF DECEASED
EMPLOYEES
DECISION DENYING CLAIM OF MRS. BEATRICE PERKINS FOR UNPAID
COMPENSATION DUE MR. HERBERT PERKINS AT DATE OF HIS DEATH AS FORMER
EMPLOYEE OF THE VETERANS ADMINISTRATION HOSPITAL, LIVERMORE, CALIFORNIA.
SINCE BEATRICE PERKINS IS NOT, UNDER CALIFORNIA LAW, THE LAWFUL WIDOW
OF DECEASED EMPLOYEE BECAUSE HER MARRIAGE TO HIM TOOK PLACE PRIOR TO THE
ENTRY OF A FINAL DECREE OF DIVORCE BETWEEN HERBERT PERKINS AND HIS
PREVIOUS WIFE, NO BASIS FOR ALLOWANCE OF THE CLAIM EXISTS. SETTLEMENT
IN FAVOR OF CHILDREN OF DECEASED UNDER 5 U.S.C. 5582 IS SUSTAINED.
TO MRS. BEATRICE PERKINS:
REFERENCE IS MADE TO YOUR LETTERS DATED JUNE 7 AND JUNE 10, 1971, IN
EFFECT REQUESTING REVIEW OF SETTLEMENT OF OUR CLAIMS DIVISION DATED MAY
28, 1971, WHICH DISALLOWED YOUR CLAIM AS WIDOW OF HERBERT PERKINS,
DECEASED, FOR UNPAID COMPENSATION DUE HIM AT DATE OF DEATH AS A FORMER
EMPLOYEE OF THE VETERANS ADMINISTRATION HOSPITAL, LIVERMORE, CALIFORNIA.
THE RECORD SHOWS THAT AN INTERLOCUTORY JUDGMENT WAS ENTERED IN THE
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
ON SEPTEMBER 17, 1965, ADJUDGING THAT ARTHELLA PERKINS WAS ENTITLED TO A
DIVORCE FROM HERBERT PERKINS AND THAT FINAL JUDGMENT OF DIVORCE WAS
ENTERED AUGUST 2, 1966. IN SUPPORT OF YOUR CLAIM YOU FURNISHED A COPY
OF A CERTIFICATE OF MARRIAGE SHOWING THAT YOUR MARRIAGE TO HERBERT
PERKINS WAS SOLEMNIZED IN SALINE COUNTY, ARKANSAS, ON MAY 18, 1966.
CLAIM WAS ALSO PRESENTED BY ETHEL LEE PERKINS AND JAMES EDWARD PERKINS,
DAUGHTER AND SON, RESPECTIVELY.
AS WAS POINTED OUT IN THE SETTLEMENT OF MAY 28, 1971, UNPAID
COMPENSATION OF DECEASED CIVILIAN EMPLOYEES OF THE GOVERNMENT MUST BE
DISTRIBUTED IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C. 5582 WHICH
PROVIDES, IN PERTINENT PART, AS FOLLOWS:
"(B) IN ORDER TO FACILITATE THE SETTLEMENT OF THE ACCOUNTS OF
DECEASED EMPLOYEES, MONEY DUE AN EMPLOYEE AT THE TIME OF HIS DEATH SHALL
BE PAID TO THE PERSON OR PERSONS SURVIVING AT THE DATE OF DEATH, IN THE
FOLLOWING ORDER OF PRECEDENCE, AND THE PAYMENT BARS RECOVERY BY ANOTHER
PERSON OF AMOUNTS SO PAID:
"FIRST, TO THE BENEFICIARY OR BENEFICIARIES DESIGNATED BY THE
EMPLOYEE IN A WRITING RECEIVED IN THE EMPLOYING AGENCY BEFORE HIS DEATH.
"SECOND, IF THERE IS NO DESIGNATED BENEFICIARY, TO THE WIDOW OR
WIDOWER OF THE EMPLOYEE.
"THIRD, IF NONE OF THE ABOVE, TO THE CHILD OR CHILDREN OF THE
EMPLOYEE AND DESCENDANTS OF DECEASED CHILDREN BY REPRESENTATION. *** "
SINCE THE DECEDENT DID NOT DESIGNATE A BENEFICIARY AND SINCE YOU
MARRIED HIM PRIOR TO FINAL JUDGMENT OF DIVORCE FROM HIS FORMER WIFE,
ARTHELLA PERKINS, YOUR CLAIM AS WIDOW WAS DISALLOWED. SETTLEMENT HAS
BEEN MADE IN FAVOR OF THE CHILDREN.
IT IS WELL ESTABLISHED THAT UNDER THE LAWS OF THE STATE OF CALIFORNIA
THE LEGAL RELATIONSHIP OF HUSBAND AND WIFE IS NOT TERMINATED BY AN
INTERLOCUTORY JUDGMENT OF DIVORCE BUT ONLY THAT AFTER THE EXPIRATION OF
THE STATUTORY PERIOD OF WAITING THE PARTIES ARE ENTITLED TO A FINAL
JUDGMENT DISSOLVING THE MARRIAGE. THUS, YOUR CEREMONIAL MARRIAGE TO
HERBERT PERKINS WAS NULL AND VOID BECAUSE HIS VALID AND SUBSISTING
MARRIAGE TO ARTHELLA HAD NOT BEEN TERMINATED ON MAY 18, 1966. THERE HAS
BEEN FURNISHED NO EVIDENCE THAT YOUR MARRIAGE WAS VALIDATED AFTER THE
REMOVAL OF THE IMPEDIMENT OF YOUR INVALID MARRIAGE BY THE FILING OF
FINAL JUDGMENT OF DIVORCE ON AUGUST 2, 1966, AND YOUR MARRIAGE WAS NOT
VALIDATED BY YOUR HAVING LIVED WITH HERBERT PERKINS AS MAN AND WIFE,
SINCE UNDER THE LAW OF THE STATE OF CALIFORNIA ONLY COMMON-LAW MARRIAGES
CONSUMMATED PRIOR TO 1895 ARE VALID. SINCE YOU ARE NOT THE LAWFUL WIDOW
OF THE DECEDENT THERE IS NO BASIS FOR ALLOWANCE OF YOUR CLAIM.
ACCORDINGLY, THE SETTLEMENT OF MAY 28, 1971, WAS CORRECT AND IS
SUSTAINED.
B-130515, JUL 29, 1971
CONTRACTS - GOVERNMENT LIABILITY - AUTHORITY TO ENTER INTO
COST-PLUS-PERCENTAGE-OF-COST-CONTRACT
DECISION DENYING CLAIM FOR $83,553.81 ALLEGED TO BE DUE INCIDENT TO A
COST-PLUS-PERCENTAGE-OF-COST CONTRACT WITH THE DIRECTOR OF THE
CONCENTRATED EMPLOYMENT PROGRAM (CEP), IN PROVIDENCE, R. I., TO RENOVATE
A WAREHOUSE TO BE USED BY A LOCAL ANTIPOVERTY AGENCY.
IT IS CLEAR THAT THE DIRECTOR OF CEP COULD NOT ENTER INTO THE
CONTRACT WITHOUT THE APPROVAL OF THE DEPARTMENT OF LABOR, AND THAT IN
ANY CASE, THE DEPARTMENT OF LABOR HAD NO AUTHORITY TO APPROVE
COST-PLUS-PERCENTAGE-OF-COST CONTRACT. IN ACCORDANCE WITH GAO'S
RECOMMENDATIONS OF APRIL 6, 1970, THE CONTRACTOR WAS PAID $105,000 ON
ITS CLAIM FOR $159,330 PLUS INTEREST. IT IS THE COMP. GEN.'S VIEW THAT
THE OBLIGATION OF THE U.S. HAS BEEN DISCHARGED AND THE CLAIM FOR AN
ADDITIONAL AMOUNT
TO RAYMOND CONSTRUCTION COMPANY, INCORPORATED:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 15, 1970, WITH
ENCLOSURES, REQUESTING THAT THIS OFFICE REVIEW AND DETERMINE THE
LIABILITY OF THE GOVERNMENT WITH RESPECT TO A
COST-PLUS-PERCENTAGE-OF-COST CONTRACT ENTERED INTO ON DECEMBER 18, 1968,
BETWEEN THE DIRECTOR OF THE CONCENTRATED EMPLOYMENT PROGRAM (CEP), IN
PROVIDENCE, RHODE ISLAND, AND YOUR FIRM FOR THE RENOVATION OF A FACILITY
LOCATED AT 358 PUBLIC STREET IN PROVIDENCE.
THE RATHER COMPLEX SERIES OF EVENTS LEADING TO THE SUBMISSION OF THIS
REQUEST ARE FULLY DOCUMENTED IN A REPORT ISSUED BY LETTER DATED APRIL 6,
1970, TO CONGRESSMAN ROBERT O. TIERNAN, WHICH YOU INCLUDED IN YOUR
SUBMISSION. IN VIEW OF THE ABOVE-MENTIONED REPORT WE FEEL THAT ONLY A
SHORT SUMMARY OF THE FACTS IS NECESSARY FOR THE PURPOSES OF THIS
DECISION.
ON JUNE 20, 1968, THE DEPARTMENT OF LABOR (DOL) ENTERED INTO A COST
REIMBURSEMENT CONTRACT WITH PROGRESS FOR PROVIDENCE, INCORPORATED (PFP),
A LOCAL ANTI-POVERTY AGENCY, FOR CONDUCTING A CONCENTRATED EMPLOYMENT
PROGRAM (CEP), IN PROVIDENCE, RHODE ISLAND. PFP'S TOTAL BUDGET WAS
ABOUT $1.9 MILLION, $62,500 OF WHICH WAS ALLOCATED FOR RENT AND REPAIRS.
PFP ENTERED INTO A FIVE-YEAR LEASE FOR THE RENTAL OF A FORMER WAREHOUSE
AT A COST OF $12,000 FOR THE FIRST YEAR, AND $10,000 ANNUALLY FOR THE
SUCCEEDING YEARS. THE LEASE PROVIDED THAT REPAIRS AND RENOVATION COULD
BE MADE BY PFP.
ON SEPTEMBER 13, 1968, PFP ENTERED INTO A FIXED-PRICE CONTRACT FOR
$12,580, WITH YOUR FIRM FOR RENOVATION OF THE BUILDING. LATER, THE CEP
DIRECTOR, WITHOUT PRIOR APPROVAL FROM DOL OR PFP, ENTERED INTO A SERIES
OF ORAL AGREEMENTS WITH YOUR FIRM TO MAKE EXTENSIVE REPAIRS TO THE
WAREHOUSE IN ORDER THAT THE FACILITY MEET THE REQUIREMENTS OF THE
PROVIDENCE BUILDING CODE. ON DECEMBER 18, 1968, WITH APPROXIMATELY
ONE-THIRD OF THE TOTAL RENOVATION WORK COMPLETED, THE CEP DIRECTOR, WITH
THE APPARENT CONSENT OF A DOL REPRESENTATIVE ENTERED INTO A WRITTEN
COST-PLUS-PERCENTAGE-OF-COST ARRANGEMENT WITH YOUR FIRM, WHICH CONTAINED
NEITHER SPECIFICATIONS DESCRIBING THE WORK TO BE PERFORMED NOR AN
ESTIMATED COST. ON FEBRUARY 5, 1969, AT THE REQUEST OF PFP AND BECAUSE
OF THE RENOVATION WORK WHICH HAD BEEN DONE, THE BASIC CONTRACT BETWEEN
LABOR AND PFP WAS MODIFIED TO INCREASE THE ALLOTMENT FOR RENT AND
REPAIRS. UPON COMPLETION OF THE WORK, AND AFTER MANY NEGOTIATION
SESSIONS, YOUR FIRM SUBMITTED A FINAL REVISED INVOICE IN THE AMOUNT OF
$159,330 ON JULY 26, 1969.
ON APRIL 6, 1970, THIS OFFICE ISSUED ITS REPORT WHICH CONCLUDED IN
PART THAT NEITHER THE CEP DIRECTOR NOR PFP HAD AUTHORITY TO ENTER INTO
THE CONTRACT OF DECEMBER 18, 1968, FOR THE ADDITIONAL RENOVATIONS
WITHOUT THE APPROVAL OF DOL, AND THAT IN ANY CASE DOL HAD NO AUTHORITY
TO APPROVE A COST-PLUS-PERCENTAGE-OF-COST (CPPC) CONTRACT. IN ADDITION
THE REPORT CONTAINED THE FOLLOWING RECOMMENDATIONS TO THE SECRETARY OF
LABOR:
(1) THAT DOL DETERMINE THE LIABILITY OF THE FEDERAL GOVERNMENT WITH
RESPECT TO THE COSTS INCURRED FOR THE RENOVATION OF THE CEP FACILITY AND
ASSIST PFP IN RESOLVING THE OUTSTANDING ISSUES UNDER THE CONTRACT WITH
RAYMOND CONSTRUCTION, AND
(2) THAT DOL PLACE GREATER EMPHASIS ON CONTINUAL MONITORING OF CEP
ACTIVITIES, ESPECIALLY THOSE RELATING TO THE ACQUISITION OF ACCEPTABLE
FACILITIES FOR THE PROGRAM.
IN ACCORDANCE WITH THE ABOVE-CITED CONCLUSIONS AND RECOMMENDATIONS
PFP PAID YOUR FIRM $105,000 ON YOUR CLAIM FOR $159,330 PLUS INTEREST.
BY LETTER DATED DECEMBER 15, 1970, YOU SUBMITTED A CLAIM TO THIS
OFFICE FOR $83,553.81 PLUS ALLOWANCES FOR TRAVEL, LEGAL AND
MISCELLANEOUS EXPENSES, OVERHEAD OVERRUN AND PUNITIVE DAMAGES. AN
ANALYSIS OF THE RATHER LENGTHY SUBMISSION INDICATES THAT YOU BASE YOUR
CLAIM PRIMARILY ON THE CONTENTION THAT THE GOVERNMENT RATIFIED THE
DECEMBER 18 CONTRACT BY ALLOWING THE WORK TO GO FORWARD WITH FULL
KNOWLEDGE OF THE CONTRACT. YOU ALSO CONTEND THAT DOL HAS FAILED TO
FOLLOW THE RECOMMENDATIONS OF THE GAO REPORT BY LIMITING PAYMENT TO
$105,000.00, A DETERMINATION REACHED BEFORE OUR REPORT WAS ISSUED. DOL
TAKES THE POSITION THAT THEY HAVE FULLY COMPLIED WITH THE
RECOMMENDATIONS OF OUR REPORT AND THEIR LEGAL OBLIGATIONS BY THE
$105,000 PAYMENT.
AT THE OUTSET IT MUST BE ASSERTED THAT THE LEGAL LIABILITY OF THE
GOVERNMENT TO YOUR FIRM UNDER THE CONTRACT OF DECEMBER 18 HAS ALREADY
BEEN CONSIDERED BY THIS OFFICE IN OUR REPORT OF APRIL 6. AS STATED IN
THAT REPORT, YOUR CPPC CONTRACT WITH PFP CAN NOT BE APPROVED BY THE
GOVERNMENT. 41 U.S.C. 254(B). HOWEVER, DOL DOES HAVE AUTHORITY TO
APPROVE REIMBURSEMENT TO PFP AS THE DOL DEEMS FAIR AND REASONABLE FOR
THE WORK DONE UNDER THE IMPROPER CONTRACT. IN OUR OPINION THE CONTRACT
MODIFICATION OF FEBRUARY 5, 1969, HAD THE EFFECT OF SUCH AN APPROVAL TO
THE EXTENT OF THE AMOUNT ALLOWED. 33 COMP. GEN. 533 (1954).
IN VIEW OF THE FOREGOING, WE MUST CONCLUDE THAT YOUR CLAIM FOR AN
ADDITIONAL AMOUNT CANNOT BE ALLOWED.
B-152388, JUL 29, 1971
RETIREMENT FOR DISABILITY - FRAUD AND PERJURY
LETTER TO MR. VINCENT S. LUCAS REGARDING HIS RETIREMENT FOR
DISABILITY AS AN ENLISTED MAN IN THE U.S. COAST GUARD. BY DECISIONS OF
JANUARY 7, 1969 AND MARCH 10, 1969, CLAIMANT WAS INFORMED THAT THERE WAS
NO BASIS FOR ACTION BY GAO. THE ALLEGATIONS MADE BY CLAIMANT ARE
PRIMARILY FOR CONSIDERATION BY THE DEPARTMENT OF JUSTICE.
TO MR. VINCENT S. LUKAS:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 16, 1971, WITH ENCLOSURE,
ASKING FOR AN INVESTIGATION IN THE NATURE OF A HEARING OF CERTAIN
MATTERS IN WHICH YOU ALLEGE FRAUD AND PERJURY. THE EVENTS INVOLVED
RELATE TO YOUR RETIREMENT FOR DISABILITY AS AN ENLISTED MAN IN THE
UNITED STATES COAST GUARD.
YOU SAY THAT ON SEPTEMBER 1, 1950, YOU WERE "RETIRED ILLEGALLY FOR A
DISEASE THAT I DID NOT HAVE," AND YOU ACCUSE OFFICERS OF THE COAST GUARD
OF FRAUD AND PERJURY IN THE HANDLING OF YOUR CASE.
YOUR REQUEST FOR AN INVESTIGATION IN THIS MATTER IS SIMILAR TO A
PRIOR REQUEST MADE BY YOU WHICH WAS THE SUBJECT OF OUR LETTER OF JANUARY
7, 1969, B-152388, COPY ENCLOSED, TO YOU. IN THAT LETTER, WE ADVISED
YOU THAT THIS OFFICE HAS NO PROCEDURE FOR CONDUCTING AN INVESTIGATIVE
HEARING SUCH AS YOU REQUEST. YOU WERE FURTHER ADVISED THAT YOUR VARIOUS
CLAIMS WERE HANDLED ON THE BASIS OF THE LAW APPLICABLE THERETO AND WE
FOUND NO ADDITIONAL AMOUNT DUE YOU. WE SUGGESTED THAT IF YOU FEEL YOU
SHOULD BE PAID RETIRED PAY AT A RATE IN EXCESS OF THAT NOW BEING
RECEIVED OR THAT YOU HAVE BEEN DENIED OTHER AUTHORIZED BENEFITS, ANY
CLAIM FOR SUCH ITEMS SHOULD BE PRESENTED TO A COURT OF COMPETENT
JURISDICTION.
CONCERNING THIS SAME MATTER, WE ALSO ADVISED YOU IN LETTER OF MARCH
10, 1969, COPY ENCLOSED, THAT UNDER THE STATUTORY LIMITATIONS IMPOSED ON
THIS OFFICE, THERE IS NO FURTHER ACTION WE CAN TAKE IN THE MATTER.
MOREOVER, ALLEGATIONS OF FRAUD AND PERJURY ARE CRIMINAL MATTERS
PRIMARILY FOR CONSIDERATION BY THE DEPARTMENT OF JUSTICE.
B-170639, JUL 29, 1971
CIVILIAN EMPLOYEE - CHANGE OF STATIONS - REIMBURSEMENT OF EXPENSES WHEN
ONE STATION IS OUTSIDE THE UNITED STATES
CONCERNING CLAIM MADE BY MR. ISAAC RODRIGUEZ, JR. FOR CERTAIN
EXPENSES INCURRED INCIDENT TO TRANSFER FROM AGENCY FOR INTERNATIONAL
DEVELOPMENT, SAIGON, VIETNAM, TO DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT, WASHINGTON, D.C., FOR THE CONVENIENCE OF THE GOVERNMENT.
AS THE RECORD IS INCOMPLETE REGARDING UNDERLYING FACTS INVOLVED, NO
FINAL DECISION MAY BE GIVEN EXCEPT TO DISALLOW CLAIM FOR EXPENSES
INCURRED ON THE 6-DAY HOUSE HUNTING TRIP AND THOSE IN CONNECTION WITH
THE PURCHASE OF A HOME AT THE NEW DUTY STATION. EXPENSES OF A HOUSE
HUNTING TRIP MAY NOT BE ALLOWED WHEN EITHER THE OLD OR THE NEW DUTY
STATION IS LOCATED OUTSIDE THE CONTINENTAL UNITED STATES; EXPENSES OF
REAL ESTATE TRANSACTIONS MAY NOT BE REIMBURSED UNLESS BOTH OLD AND NEW
STATIONS WERE LOCATED WITHIN THE FIFTY STATES, PUERTO RICO, OR THE CANAL
ZONE.
TO MRS. DOLORES T. HODGES:
THIS IS IN FURTHER REFERENCE TO YOUR LETTER OF AUGUST 18, 1970,
FORWARDING A TRAVEL VOUCHER AND ATTACHMENTS CONCERNING EXPENSES CLAIMED
BY MR. ISAAC RODRIGUEZ, JR., INCIDENT TO TRAVEL AND TRANSPORTATION OF
EFFECTS UPON TRANSFER FROM THE AGENCY FOR INTERNATIONAL DEVELOPMENT
(AID), SAIGON, VIETNAM, TO THE DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT (HUD), WASHINGTON, D.C.
YOUR REQUEST FOR AN ADVANCE DECISION CONSISTED MERELY OF A
TRANSMITTAL OF THE VOUCHER AND SUPPORTING PAPERS WITHOUT ANY
EXPLANATION. SEE IN THIS CONNECTION 31 U.S.C. 82D. FUTURE REQUESTS
SHOULD SET FORTH THE FACTS INVOLVED AND THE REASONS FOR SUBMITTING THE
MATTER HERE FOR DECISION.
IT APPEARS FROM THE ENCLOSURES, AND FROM INFORMATION FURNISHED OUR
OFFICE BY AID, THAT MR. RODRIGUEZ WAS EMPLOYED BY USAID/VIETNAM. HE
WAS RETURNED TO THE UNITED STATES TO BE SEPARATED AT SAN ANTONIO, TEXAS,
FOLLOWING COMPLETION OF 30 DAYS TEMPORARY DUTY IN WASHINGTON, D.C.
DURING HIS PERIOD OF TEMPORARY DUTY HE RECEIVED AN APPOINTMENT,
EFFECTIVE JULY 9, 1969, WITH HUD AT WASHINGTON, D.C. NO BREAK IN
SERVICE OCCURRED.
THE VOUCHER TRANSMITTED WITH YOUR LETTER TOTALS $3,480.52 AGAINST
WHICH TRAVEL ADVANCES AMOUNTING TO $2,675.47 HAVE BEEN MADE. INASMUCH
AS YOU HAVE NOT RAISED SPECIFIC QUESTIONS AS TO PARTICULAR ITEMS
CLAIMED, THIS LETTER WILL BE LIMITED TO ADVISING YOU OF THE GENERAL
BASIS UPON WHICH EXPENSES MAY BE ALLOWED AND RETURNING THE VOUCHER TO
YOU FOR ADMINISTRATIVE PROCESSING.
A COPY OF STANDARD FORM 52, REQUEST FOR PERSONNEL ACTION, DATED JUNE
17, 1969, INDICATES THAT THE APPOINTMENT WAS MADE FOR THE CONVENIENCE OF
THE GOVERNMENT, AND MR. RODRIGUEZ "IS THEREFORE ENTITLED TO TRAVEL AND
TRANSPORTATION FOR HIMSELF, HIS FAMILY AND HOUSEHOLD EFFECTS." SEE IN
THIS CONNECTION 5 U.S.C. 5724(H) WHICH PRECLUDES PAYMENT OF EXPENSES
WHEN A TRANSFER IS MADE PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF AN
EMPLOYEE, OR AT HIS REQUEST. FOR THE PURPOSES OF THIS LETTER, AND ON
THE BASIS OF THE COPY OF STANDARD FORM 52 BEFORE US, THE TRAVEL AND
TRANSPORTATION EXPENSE ENTITLEMENT OF MR. RODRIGUEZ WILL BE CONSIDERED
AS INCIDENT TO A TRANSFER FROM USAID/VIETNAM TO HUD/WASHINGTON.
EXPENSES AND ALLOWANCES CLAIMED ARE IN THE FOLLOWING CATEGORIES:
1. TRAVEL FOR WIFE AND CHILDREN FROM SAN ANTONIO.
2. HOUSE HUNTING TRIP - 6 DAYS.
3. TRAVEL OF EMPLOYEE, WIFE, AND CHILDREN TO SAN ANTONIO FROM
WASHINGTON, D.C.
4. SUBSISTENCE EXPENSE WHILE OCCUPYING TEMPORARY QUARTERS.
5. MISCELLANEOUS EXPENSES ALLOWANCE.
6. TRANSPORTATION OF 2,460 POUNDS HOUSEHOLD EFFECTS FROM SAN ANTONIO
TO BOWIE, MARYLAND.
7. ALLOWANCE FOR EXPENSES IN CONNECTION WITH REAL ESTATE
TRANSACTION.
TWO OF THE CATEGORIES ABOVE, NOS. 2 AND 7, ARE NOT ELIGIBLE FOR
REIMBURSEMENT. EXPENSES RELATED TO HOUSE HUNTING TRIPS MAY NOT BE
AUTHORIZED WHEN EITHER THE OLD OR NEW DUTY STATION IS LOCATED OUTSIDE
THE CONTINENTAL UNITED STATES. SEE SECTION 2.4A(3) OF OFFICE OF
MANAGEMENT AND BUDGET CIRCULAR NO. A-56. ALLOWANCES FOR EXPENSES IN
CONNECTION WITH REAL ESTATE TRANSACTIONS MAY BE MADE ONLY WHEN THE OLD
AND NEW OFFICIAL STATIONS ARE LOCATED WITHIN THE 50 STATES, THE DISTRICT
OF COLUMBIA, THE TERRITORIES AND POSSESSIONS OF THE UNITED STATES, THE
COMMONWEALTH OF PUERTO RICO, OR THE CANAL ZONE. SEE SECTION 4.1A OF
CIRCULAR NO. A-56. THUS NO BASIS EXISTS FOR THE FURNISHING OF
TRANSPORTATION OR REIMBURSEMENT OF EXPENSES INCIDENT TO THE FOREGOING.
CATEGORIES NOS. 4 AND 5 MAY PROPERLY BE CONSIDERED FOR REIMBURSEMENT.
SEE 47 COMP. GEN. 763 (1968).
IN REGARD TO THE REMAINING ITEMS, TRANSPORTATION AND REIMBURSEMENT OF
EXPENSES ARE LIMITED TO NOT TO EXCEED THE COST OF DIRECT TRAVEL FROM THE
OLD TO THE NEW STATION, LESS THE COST INCURRED BY USAID FOR RETURN
TRAVEL. YOUR ATTENTION IS DIRECTED TO 46 COMP. GEN. 628 (1967) AND 47
ID. 763 (1968) FOR GUIDELINES IN THIS RESPECT. COPIES OF DOCUMENTS
RELATING TO THE COSTS INCURRED BY AID HAVE BEEN OBTAINED AND ARE
ENCLOSED FOR YOUR USE.
THE VOUCHER AND ENCLOSURES ARE RETURNED HEREWITH.
B-172331, JUL 29, 1971
BASIC ALLOWANCE FOR QUARTERS - TRANSIENT QUARTERS
DECISION ALLOWING PARTIAL REFUND ON CLAIM OF CAPTAIN ROBERT H.
POPPER, JR., USAF, FOR BASIC ALLOWANCE FOR QUARTERS (BAQ) PAID TO, BUT
SUBSEQUENTLY RECOVERED FROM CLAIMANT. UNDER TABLE 3-2-5, RULE 7, OF THE
MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, THE AIR FORCE WAS
CORRECT IN RECOVERING THE BAQ ALLOWANCE. FURTHER, THIS CLAIM IS NOT
SUITABLE FOR ACTION UNDER THE MERITORIOUS CLAIMS ACT OF 1928. HOWEVER,
THE AIR FORCE WAS WRONG IN COLLECTING A SERVICE CHARGE FOR TRANSIENT
QUARTERS FOR THE PERIOD IN EXCESS OF 30 DAYS, AND THE CLAIMANT IS THUS
DUE A REFUND OF THE DIFFERENCE BETWEEN WHAT HE PAID AND WHAT HE SHOULD
HAVE PAID AS A PERMANENT PARTY.
TO CAPTAIN ROBERT H. POPPER, JR.:
FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR REFUND OF BASIC ALLOWANCE
FOR QUARTERS PAID TO YOU FOR THE PERIOD OCTOBER 8, 1969, THROUGH
DECEMBER 11, 1969, AND SUBSEQUENTLY RECOVERED FROM YOU.
THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO,
FORWARDED YOUR CLAIM HERE FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS
ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236.
THE RECORD SHOWS THAT YOU WERE STATIONED AT ANDERSON AIR FORCE BASE,
GUAM, THAT YOU WERE LIVING OFF BASE AND BEING PAID BASIC ALLOWANCE FOR
QUARTERS AND THAT ON SEPTEMBER 8, 1969, YOU AND YOUR WIFE MOVED INTO
TRANSIENT QUARTERS ON THE BASE. YOU SAY THE MOVE WAS AUTHORIZED BECAUSE
OF THREATS OF PHYSICAL HARM TO YOUR WIFE BY A MAN WHO HAD PREVIOUSLY
ABDUCTED HER. YOU AND YOUR WIFE CONTINUED TO OCCUPY SUCH QUARTERS UNTIL
DECEMBER 11, 1969, AND YOU WERE PAID BASIC ALLOWANCE FOR QUARTERS FOR
THE ENTIRE PERIOD.
PARAGRAPH 30221 OF THE MILITARY PAY AND ALLOWANCES ENTITLEMENTS
MANUAL PROVIDES THAT A MEMBER WITH DEPENDENTS WHO IS ENTITLED TO BASIC
PAY IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS AT THE RATES PRESCRIBED
FOR MEMBERS WITH DEPENDENTS WHEN ADEQUATE QUARTERS ARE NOT FURNISHED FOR
HIM AND HIS DEPENDENTS. TABLE 3-2-8, RULE 4 OF THE MANUAL REQUIRES
TERMINATION OF THE QUARTERS ALLOWANCE IF THE MEMBER AND HIS DEPENDENTS
OCCUPY GOVERNMENT QUARTERS, INCLUDING A GUEST HOUSE OR SIMILAR TYPE
FACILITY AT HIS PERMANENT STATION. TABLE 3-2-5, RULE 7 OF THE MANUAL,
HOWEVER, PROVIDES THAT THE ALLOWANCE MAY CONTINUE NOT TO EXCEED 30 DAYS
WHEN TRANSIENT QUARTERS ARE OCCUPIED. SINCE YOU AND YOUR WIFE OCCUPIED
TRANSIENT GOVERNMENT QUARTERS BEYOND 30 DAYS, YOU WERE NOT ENTITLED TO
BE PAID AN ALLOWANCE FOR QUARTERS FOR THE PERIOD OCTOBER 8 TO DECEMBER
11, 1969, AND THERE WAS COLLECTED FROM YOU $256 REPRESENTING THE
QUARTERS ALLOWANCE PAID FOR SUCH PERIOD.
IT IS WELL SETTLED THAT PERSONS RECEIVING ERRONEOUS PAYMENTS FROM THE
GOVERNMENT ACQUIRE NO RIGHT TO SUCH PAYMENTS AND THE COURTS HAVE
CONSISTENTLY HELD THAT SUCH PERSONS ARE BOUND IN EQUITY AND GOOD
CONSCIENCE TO MAKE RESTITUTION. IN UNITED STATES V NORTHWESTERN
NATIONAL BANK AND TRUST COMPANY OF MINNEAPOLIS, 35 F. SUPP. 484, 486,
THE COURT STATED THAT THE RECIPIENT OF AN ERRONEOUS PAYMENT RESULTING
FROM A MISTAKE BY A PUBLIC OFFICIAL, MUST IN EQUITY MAKE RESTITUTION,
SINCE RESTITUTION RESULTS IN NO LOSS TO HIM, HE HAVING RECEIVED
SOMETHING FOR NOTHING. IN WISCONSIN CENTRAL RAILROAD V UNITED STATES,
164 U.S. 190, IT WAS HELD THAT PERSONS WHO RECEIVE ERRONEOUS PAYMENTS
FROM THE UNITED STATES THROUGH ADMINISTRATIVE ERROR OF ITS OFFICERS, ARE
BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION.
EVEN FINANCIAL HARDSHIP WHICH MIGHT RESULT FROM COLLECTION FROM THE
RECIPIENT OR THE FACT THAT PAYMENT MAY HAVE BEEN RECEIVED IN GOOD FAITH
"CANNOT STAND AGAINST THE INJUSTICE OF KEEPING WHAT NEVER RIGHTFULLY
BELONGED TO HIM AT ALL." UNITED STATES V BENTLEY, 107 F. 2D. 382, 384.
HENCE, THE AIR FORCE PROPERLY RECOVERED THE ERRONEOUS PAYMENT AND WE
FIND NO LEGAL BASIS FOR PAYMENT OF YOUR CLAIM FOR REFUND.
THE MERITORIOUS CLAIMS ACT OF 1928 PROVIDES THAT WHEN A CLAIM IS
FILED IN THIS OFFICE THAT MAY NOT BE LAWFULLY ADJUSTED BY USE OF AN
APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM, IN OUR JUDGEMENT
CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING
OF THE CONSIDERATION OF 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.
THE CASES WE HAVE REPORTED FOR THE CONSIDERATION OF THE CONGRESS
GENERALLY HAVE INVOLVED EQUITABLE CIRCUMSTANCES OF AN UNUSUAL NATURE AND
WHICH ARE UNLIKELY TO CONSTITUTE A RECURRING PROBLEM SINCE TO REPORT TO
THE CONGRESS A PARTICULAR CASE WHEN SIMILAR EQUITIES EXIST OR ARE LIKELY
TO ARISE WITH RESPECT TO OTHER CLAIMANTS WOULD CONSTITUTE PREFERENTIAL
TREATMENT OVER OTHERS IN SIMILAR CIRCUMSTANCES.
WHILE THE OCCUPANCY OF TRANSIENT QUARTERS ON THE BASE AROSE FROM
UNUSUAL CIRCUMSTANCES, THE ERRONEOUS PAYMENT TO YOU AROSE FROM AN
ADMINISTRATIVE ERROR. THERE ARE NUMEROUS CASES IN WHICH MEMBERS THROUGH
ADMINISTRATIVE ERROR RECEIVE OVERPAYMENTS OF PAY AND ALLOWANCES AND ARE
REQUIRED TO REPAY THE AMOUNT ERRONEOUSLY RECEIVED. WE DO NOT REGARD
YOUR CASE AS CONTAINING SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS
WOULD WARRANT REPORTING IT TO THE CONGRESS FOR CONSIDERATION UNDER THE
MERITORIOUS CLAIMS ACT OF 1928.
HOWEVER, THE RECORD SHOWS THAT YOU WERE CHARGED $2 PER DAY PER PERSON
FOR 99 DAYS (SEPTEMBER 8 TO DECEMBER 15) OR $396 AS A SERVICE CHARGE FOR
THE USE OF GOVERNMENT QUARTERS AT ANDERSON AIR FORCE BASE. THE
DEPARTMENT OF THE AIR FORCE HAS ADVISED US INFORMALLY THAT THE SERVICE
CHARGE FOR MAID/HOUSEKEEPING SERVICE FOR PERMANENT PARTY PERSONNEL AT
ANDERSON AIR FORCE BASE AT THE TIME HERE INVOLVED WAS $15 PER MONTH.
WE DO NOT HAVE THE BASE REGULATIONS WITH RESPECT TO SUCH SERVICE
CHARGE, BUT PRESUMABLY THE PERMANENT PARTY RATE OF $15 A MONTH WOULD NOT
BE APPLICABLE DURING THE 30-DAY PERIOD THAT YOU WERE ENTITLED TO
CONTINUE RECEIVING A QUARTERS ALLOWANCE. ON THAT BASIS, AND IN THE
ABSENCE OF INFORMATION TO THE CONTRARY, IT IS CONCLUDED THAT DURING THE
30-DAY PERIOD YOU AND YOUR WIFE OCCUPIED THE GUEST HOUSE WITHOUT LOSS OF
YOUR QUARTERS ALLOWANCE YOU WERE PROPERLY CHARGED $4 PER DAY FOR 30 DAYS
OR $120.
SINCE YOU WERE PERMANENTLY STATIONED AT ANDERSON AIR FORCE BASE,
HOWEVER, THE CHARGE AFTER 30 DAYS SHOULD HAVE BEEN AT THE RATE OF $15
PER MONTH. THEREFORE, YOU ARE ENTITLED TO THE DIFFERENCE BETWEEN $4 PER
DAY FOR 69 DAYS ($276) AND $0.50 PER DAY FOR 69 DAYS ($34.50) OR
$241.50, A SETTLEMENT FOR WHICH IN YOUR FAVOR WILL ISSUE IN DUE COURSE.
B-173417, JUL 29, 1971
CONTRACTS - MISTAKE IN BID - REQUEST FOR INCREASED CONSIDERATION
DECISION THAT NO LEGAL BASIS EXISTS FOR INCREASING THE CONSIDERATION
UNDER A CONTRACT BETWEEN THE FEDERAL HIGHWAY ADMINISTRATION AND ROGAY,
INC. FOR THE FABRICATION OF NINE RECRUITMENT EXHIBITS.
BECAUSE OF THE WIDE RANGE OF BIDS, $16,056 TO $31,279.23 AND THE
GOVERNMENT'S ESTIMATE OF $17,000, THE COMP. GEN. CANNOT CONCLUDE THAT
THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE POSSIBILITY OF
ERROR IN ROGAY'S LOW BID OF $16,056. THE BID WAS ACCEPTED IN GOOD
FAITH, AND NO ERROR WAS ALLEGED UNTIL AFTER AWARD. UNDER THE
CIRCUMSTANCES THE ACCEPTANCE OF THE BID CONSUMMATED A VALID AND BINDING
CONTRACT, THE RIGHTS AND LIABILITIES OF THE PARTIES BECAME FIXED, AND
THE CONSIDERATION MAY NOT BE INCREASED.
TO MR. SECRETARY:
REFERENCE IS MADE TO A LETTER DATED JUNE 24, 1971, WITH ENCLOSURES,
FROM THE ASSOCIATE ADMINISTRATOR FOR ADMINISTRATION, FEDERAL HIGHWAY
ADMINISTRATION, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN
CONCERNING AN ERROR ALLEGED BY ROGAY, INCORPORATED, TO HAVE BEEN MADE IN
ITS BID UPON WHICH CONTRACT NO. DOT-FH-11-7469 IS BASED.
INVITATION FOR BIDS NO. 71-6 REQUESTED BIDS FOR THE FABRICATION OF
NINE COMPLETE FEDERAL HIGHWAY RECRUITMENT EXHIBITS. IN RESPONSE, ROGAY,
INCORPORATED, SUBMITTED A BID DATED SEPTEMBER 10, 1970, OFFERING TO
FURNISH THE EXHIBITS AT A UNIT PRICE OF $1,784 OR FOR A TOTAL PRICE OF
$16,056. THE LOW BID OF ROGAY WAS ACCEPTED ON OCTOBER 12, 1970, AND IT
IS REPORTED THAT ROGAY DELIVERED THE RECRUITMENT EXHIBITS PRIOR TO THE
CONTRACT DELIVERY DATE, DECEMBER 14, 1970, AND THAT IT WAS PAID FOR THEM
AT THE CONTRACT PRICE ON OR ABOUT JANUARY 14, 1971.
ROGAY'S REPRESENTATIVE ADVISED THE CONTRACTING OFFICER BY TELEPHONE
ON OCTOBER 13, 1970, THAT THE CORPORATION HAD MADE A MISTAKE IN ITS BID.
IN A LETTER DATED OCTOBER 19, 1970, ROGAY THROUGH ITS ATTORNEY ADVISED
THE CONTRACTING OFFICER THAT THE ERROR RESULTED FROM A FAILURE TO
INCLUDE IN ITS BID PRICE THE AMOUNT OF $3,300 TO COVER THE COST OF THE
SHIPPING CRATES FOR THE EXHIBITS. ROGAY ALSO STATED THAT ANOTHER ERROR,
IN THE AMOUNT OF $80, WAS MADE BY THE CORPORATION IN COMPUTING ITS
MATERIAL COSTS. THE CORPORATION REQUESTED THAT THE CONTRACT PRICE OF
THE EXHIBITS BE INCREASED BY $2,880. IN SUPPORT OF ITS ALLEGATION OF
ERROR, THE CORPORATION BY LETTER OF JANUARY 6, 1971, SUBMITTED ITS
ORIGINAL WORKSHEETS. IN A LETTER DATED MAY 18, 1971, ROGAY REQUESTED
THAT THE CONTRACT PRICE OF THE EXHIBITS BE INCREASED BY $2,610 INSTEAD
OF $2,880.
THE PRIMARY QUESTION FOR CONSIDERATION IS NOT WHETHER AN ERROR WAS
MADE IN THE BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED
BY ITS ACCEPTANCE. THE CONTRACTING OFFICER HAS ADVISED THAT HE HAD NO
REASON TO SUSPECT AN ERROR IN THE BID. THE RECORD INDICATES THAT THE
SIX OTHER BIDS RECEIVED RANGED FROM $20,619 TO $31,279.23 AND THAT THE
GOVERNMENT'S REVISED ESTIMATE WAS IN THE AMOUNT OF $17,000. IN VIEW OF
THE WIDE RANGE OF BIDS RECEIVED AND THE GOVERNMENT'S ESTIMATE, WE CANNOT
CONCLUDE THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE
POSSIBILITY OF ERROR IN THE BID. ALTHOUGH, AFTER AWARD, THE CORPORATION
FURNISHED EVIDENCE TO SUPPORT ITS ALLEGATION OF ERROR, IT DOES NOT
APPEAR THAT PRIOR TO AWARD THE CONTRACTING OFFICER HAD KNOWLEDGE OF THE
DIFFERENT FACTORS USED BY THE CORPORATION IN COMPUTING THE BID PRICE.
SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS IN
GOOD FAITH, NO ERROR HAVING BEEN ALLEGED BY THE CORPORATION UNTIL AFTER
AWARD. THE ACCEPTANCE OF THE BID, UNDER THE CIRCUMSTANCES INVOLVED,
CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND
LIABILITIES OF THE PARTIES THERETO. SEE EDWIN DOUGHERTY AND M. H. OGDEN
V UNITED STATES, 102 CT. CL. 249, 259 (1944); SALIGMAN ET AL. V UNITED
STATES, 56 F. SUPP. 505, 507 (1944).
ACCORDINGLY, NO LEGAL BASIS EXISTS FOR INCREASING THE CONSIDERATION
UNDER THE CONTRACT.
B-171578(1), JUL 28, 1971
BID PROTEST - DELIVERY SCHEDULE - BID RESPONSIVENESS - TWO-STEP
PROCUREMENT
DECISION DENYING PROTEST AGAINST AWARD OF A NEGOTIATED CONTRACT TO
PRITCHARD-KING, INC., UNDER AN RFP ISSUED BY HEW FOR THE PROCUREMENT OF
THREE MOBILE HEALTH EXAMINATION CENTERS FOR THE NATIONAL CENTER FOR
HEALTH STATISTICS.
PROTESTANT WAS PRECLUDED FROM PARTICIPATING IN THE SECOND STEP OF THE
PROCUREMENT BECAUSE ITS OFFER FAILED TO MEET THE REQUIRED DELIVERY
SCHEDULE. BECAUSE ONLY ONE ACCEPTABLE PROPOSAL WAS RECEIVED,
NEGOTIATIONS WERE CONDUCTED WITH THAT PROPOSER AND SUCH WAS PROPER UNDER
THE RFP.
WHILE PROTESTANT DENIES THE ADMINISTRATIVE STATEMENTS THAT IT WAS
INFORMED OF THE NECESSITY FOR MEETING THE DELIVERY SCHEDULE SET OUT IN
THE RFP, SUCH DENIAL DOES NOT CONSTITUTE SUFFICIENT EVIDENCE TO JUSTIFY
A REJECTION BY THE COMP. GEN. OF THE ADMINISTRATIVE VERSION OF THE
FACTS. FURTHER, THE 350 OUT OF 6370 POINTS WHICH WERE ASSIGNED FOR
PROOF THAT THE DELIVERY SCHEDULE WOULD BE MET MAY NOT PROPERLY BE
CONSTRUED AS A RELAXATION OF THE SPECIFIED DELIVERY REQUIREMENTS.
TO MEDICAL COACHES, INC.:
FURTHER REFERENCE IS MADE TO YOUR TELEFAX DATED DECEMBER 21, 1970,
AND SUPPLEMENTING LETTERS DATED JANUARY 8, MARCH 5, AND APRIL 7, 1971,
PROTESTING THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER REQUEST FOR
PROPOSALS (RFP) HSM-110-NHS-14(1), ISSUED BY THE DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE (HEW).
THE RFP CONTEMPLATED A FIXED PRICE CONTRACT FOR THE PROCUREMENT OF
THREE MOBILE HEALTH EXAMINATION CENTERS FOR THE NATIONAL CENTER FOR
HEALTH STATISTICS (NCHS), EACH CENTER CONSISTING OF THREE
INTERCONNECTING SEMITRAILER VANS. DUE TO LACK OF DEFINITIVE
SPECIFICATIONS FOR THE CENTERS IT WAS DETERMINED THAT THE PROCUREMENT
WOULD BE NEGOTIATED IN TWO STEPS. THE FIRST STEP WAS TO CONSIST OF
SOLICITATION, SUBMISSION, EVALUATION AND, IF NECESSARY, DISCUSSIONS OF
TECHNICAL PROPOSALS TO DETERMINE THE ACCEPTABILITY OF THE CENTERS
OFFERED. THE SECOND STEP WAS TO INCLUDE THE SOLICITATION AND SUBMISSION
OF PRICE PROPOSALS BY THOSE FIRMS WHICH SUBMITTED ACCEPTABLE PROPOSALS
UNDER THE FIRST STEP. IN ORDER TO MEET ESTABLISHED SCHEDULES FOR THE
ENTIRE SURVEY TO MEASURE AND MONITOR THE NUTRITIONAL STATUS OF THE
AMERICAN PEOPLE, IT WAS DETERMINED THAT TWO OF THE THREE MOBILE
EXAMINATION CENTERS SHOULD BE DELIVERED NOT LATER THAN APRIL 1971.
BASED ON THE LACK OF DEFINITIVE SPECIFICATIONS AS WELL AS THE URGENCY OF
THE PROCUREMENT, THE USE OF FORMAL ADVERTISING WAS NOT CONSIDERED
FEASIBLE AND NEGOTIATION PURSUANT TO THE AUTHORITY OF 41 U.S.C.
252(C)(10), AS IMPLEMENTED BY PARAGRAPH 1-3.210(A)(13) OF THE FEDERAL
PROCUREMENT REGULATIONS (FPR), WAS AUTHORIZED.
A SYNOPSIS OF THE PROPOSED PROCUREMENT WAS PUBLISHED ON SEPTEMBER 22,
1970, IN THE COMMERCE BUSINESS DAILY REQUESTING ORGANIZATIONS HAVING
EXPERIENCE AND CAPABILITIES IN CONSTRUCTION OF LARGE SEMITRAILER VANS
DESIGNED FOR MOBILE EXAMINATION UNITS, TO SUBMIT WRITTEN REQUESTS FOR
COPIES OF THE RFP. EIGHTEEN FIRMS RESPONDED. EIGHT ADDITIONAL FIRMS
WERE RECOMMENDED BY THE PROJECT OFFICER, MAKING A TOTAL OF 26 FIRMS
WHICH WERE SOLICITED FOR UNPRICED TECHNICAL PROPOSALS ON OCTOBER 7,
1970. TEN FIRMS RESPONDED BUT DECLINED TO SUBMIT PROPOSALS, TEN DID NOT
RESPOND, AND TECHNICAL PROPOSALS WERE RECEIVED FROM THE FOLLOWING:
1. ALUMINUM BODY CORPORATION
2. ARO CORPORATION
3. LYNCOACH AND TRUCK COMPANY, INC.
4. MEDICAL COACHES, INC.
5. MET PRO WATER TREATMENT CORPORATION
6. PRITCHARD-KING, INC.
THE PROPOSALS WERE SUBMITTED FOR TECHNICAL EVALUATION ON OCTOBER 29,
1970, AND THE PROPOSALS SUBMITTED BY ALUMINUM BODY CORPORATION AND MET
PRO WATER TREATMENT CORPORATION WERE FOUND TO BE NONRESPONSIVE.
DURING THE PERIOD OF NOVEMBER 10-12, 1970, MEETINGS WERE HELD WITH
EACH OF THE FOUR REMAINING POTENTIAL CONTRACTORS TO CLARIFY THOSE
TECHNICAL AREAS IN THEIR PROPOSALS WHICH WERE UNCLEAR OR INCOMPLETE, TO
CONDUCT NEGOTIATIONS, AND TO PERMIT EACH FIRM TO SUBMIT ANY REVISIONS
RESULTING FROM THE NEGOTIATIONS. THE RECORD SHOWS THE FOLLOWING
SUMMARIES OF THE MEETINGS HELD WITH EACH OF THE FOUR CONTRACTORS:
(A) ARO CORPORATION - IT WAS DETERMINED THAT THIS OFFEROR PROPOSED TO
USE AN "OFF-THE-SHELF" COMMERCIAL INSULATED FREIGHT VAN, WHEREAS THE RFP
SPECIFICALLY REQUIRED A CUSTOM BUILT TYPE OF BODY, DESIGNED TO MEET
FUNCTIONAL REQUIREMENTS OF THE HEALTH EXAMINATION CENTERS. IT WAS
POINTED OUT TO ARO THAT THIS WAS AN ESSENTIAL REQUIREMENT IN THE
EVALUATION AND ACCEPTANCE OF A PROPOSAL.
(B) LYNCOACH AND TRUCK COMPANY - AFTER CLARIFICATION OF TECHNICAL
AREAS, THE REPRESENTATIVE INDICATED THE NEED TO CONFER WITH MANAGEMENT
AND TECHNICAL PERSONNEL AT HIS HOME OFFICE IN ORDER TO FULLY ANSWER ALL
QUESTIONS AND, ALTHOUGH ADVISED THAT TIME WOULD BE PROVIDED FOR
RESUBMISSION OF ADDITIONAL INFORMATION, THE CONTRACTOR'S REPRESENTATIVE
INDICATED THAT HIS COMPANY PROBABLY WOULD NOT RESPOND DUE TO A SEASONAL
UNAVAILABILITY OF PERSONNEL TO WORK ON PROPOSALS.
(C) MEDICAL COACHES, INC. - YOUR COMPANY SENT ITS WASHINGTON
REPRESENTATIVE TO THE MEETING CONVENED ON NOVEMBER 12, 1970. DUE TO HIS
INSUFFICIENT FAMILIARITY WITH THE PROPOSAL TO ANSWER TECHNICAL QUESTIONS
AND LACK OF AUTHORITY TO COMMIT YOUR COMPANY WITH RESPECT THERETO, A
SECOND MEETING WAS HELD ON NOVEMBER 13, 1970, WITH YOUR PRESIDENT AND
THE WASHINGTON REPRESENTATIVE. DISCUSSIONS CENTERED ON THE CRITICAL
FACTOR OF DELIVERY WHICH WAS THE MAJOR AREA OF CONCERN TO THE GOVERNMENT
WITH RESPECT TO YOUR PROPOSAL, SINCE YOU HAD FAILED TO SUBMIT A
PRODUCTION SCHEDULE AS SPECIFIED IN THE RFP AND IT WAS NOT POSSIBLE TO
DETERMINE IF THE PROPOSAL WAS RESPONSIVE TO THE DELIVERY REQUIREMENTS.
YOUR PRESIDENT DISCLOSED THAT A MINIMUM OF FIVE MONTHS FROM DATE OF
AWARD WOULD BE REQUIRED FOR DELIVERY OF THE FIRST TWO CENTERS AND SEVEN
MONTHS FOR THE THIRD CENTER. (THE RFP SPECIFIED FOUR MONTHS AND SIX
MONTHS, RESPECTIVELY.) HOWEVER, THE GOVERNMENT'S NEGOTIATORS EMPHASIZED
THE CRITICAL IMPORTANCE OF MEETING THE SPECIFIED DELIVERY SCHEDULE AND
THAT THIS REQUIREMENT COULD NOT BE RELAXED. AS A RESULT, YOUR
REPRESENTATIVES AGREED TO CAREFULLY REVIEW THIS FACTOR IN THE SUBMISSION
OF PRODUCTION SCHEDULES CONFIRMING THE NEGOTIATIONS.
(D) PRITCHARD-KING, INC. - ON NOVEMBER 10, 1970, A MEETING WAS
CONVENED WITH COMPANY REPRESENTATIVES AND A LIST OF TECHNICAL ITEMS WAS
REVIEWED IN DETAIL TO THE SATISFACTION OF BOTH PARTIES.
AT THE CONCLUSION OF EACH MEETING, EACH OFFEROR WAS GIVEN AN
OPPORTUNITY TO SUBMIT REVISIONS AND/OR CONFIRMATION OF TECHNICAL
PROPOSALS RESULTING FROM THE NEGOTIATIONS. EACH WAS ADVISED THAT THE
CLOSING TIME AND DATE FOR SUBMISSION OF REVISIONS WAS 4:00 P.M. ON
NOVEMBER 18, 1970, AND THAT ALL OTHER TERMS AND CONDITIONS OF THE RFP
REMAINED IN EFFECT. THIS INFORMATION WAS CONFIRMED BY TELEGRAM TO EACH
ON NOVEMBER 13, 1970.
ON NOVEMBER 18, 1970, REVISIONS AND CONFIRMATION OF NEGOTIATIONS WERE
RECEIVED FROM ARO CORPORATION, YOUR COMPANY, AND PRITCHARD-KING, INC.
LYNCOACH AND TRUCK COMPANY DID NOT RESPOND UNTIL DECEMBER 2, 1970, WHEN
A LETTER WAS RECEIVED ADVISING OF THEIR INTENTION NOT TO PARTICIPATE
FURTHER IN THIS PROCUREMENT. ARO CORPORATION DID NOT RESOLVE THE MAJOR
OBJECTION TO ITS PROPOSAL WHICH WAS THE USING OF A COMMERCIAL INSULATED
FREIGHT VAN AS ITS BASIC UNIT AND THE PROPOSAL WAS NOT ACCEPTABLE. THE
PRITCHARD-KING ORGANIZATION PROVIDED FURTHER CLARIFICATION OF ITS
PROPOSAL WHICH WAS ACCEPTABLE.
YOUR RESPONSE RESOLVED SOME DETAILS BUT IT DID NOT SHOW COMPLIANCE
WITH THE DELIVERY REQUIREMENTS SPECIFIED IN THE RFP. SPECIFICALLY, YOUR
LAST OFFER DATED NOVEMBER 16, 1970, PROPOSED THAT IF AN ORDER BY THE
GOVERNMENT WAS PLACED BY NOVEMBER 20, 1970, DELIVERY ON THE FIRST CENTER
WOULD BE APRIL 15-20, 1971, DELIVERY OF THE SECOND CENTER WOULD BE MADE
JUNE 15, 1971, AND DELIVERY OF THE THIRD CENTER WOULD BE MADE AUGUST 15,
1971. YOU STATED FURTHER THAT IF AN ORDER BY THE GOVERNMENT WAS NOT
PLACED UNTIL DECEMBER 20, 1970, THE DELIVERY OF THE FIRST CENTER WOULD
BE MAY 15-20. THE ABOVE DELIVERY DATES WERE ALSO QUALIFIED BY YOUR
STATEMENT THAT THE PRODUCTION SCHEDULE WAS PREDICATED UPON THE DATES
WHEN TRAILER PLATFORMS WOULD BE DELIVERED FROM THE TRAILER CHASSIS
MANUFACTURER.
IN THE INTERESTS OF SUSTAINING THE COMPETITIVE ASPECTS OF THE
PROCUREMENT, THE PROGRAM OFFICE WAS REQUESTED TO GIVE CAREFUL
CONSIDERATION TO THE POSSIBILITY OF RELAXING THE GOVERNMENT'S
REQUIREMENTS IN THE AREAS OF TECHNICAL AND DELIVERY REQUIREMENTS IN
ORDER TO PERMIT FURTHER CONSIDERATION OF ARO'S AND YOUR PROPOSALS. DUE
TO THE FACT THAT A CUSTOM-BUILT TRAILER WAS CONSIDERED CRITICAL TO THE
LIFE AND PERFORMANCE REQUIREMENTS, THE PROGRAM COULD NOT ACCEPT THE
DEVIATION PROPOSED BY ARO. SINCE THE SPECIFIED DELIVERY SCHEDULES ON
THE FIRST TWO CENTERS WERE CONSIDERED ESSENTIAL IN ORDER TO AVOID
SERIOUS DELAY IN THE PROGRAM AND SUBSTANTIAL DAMAGE TO THE GOVERNMENT,
NCHS REITERATED THAT DELIVERY AS REQUIRED IN THE RFP MUST REMAIN FIRM.
SINCE ONLY THE PROPOSAL OF PRITCHARD-KING, INC., WAS CONSIDERED TO BE
ACCEPTABLE FOR SOLICITATION OF PRICE PROPOSALS UNDER THE SECOND STEP OF
THIS PROCUREMENT, IT WAS ADMINISTRATIVELY DETERMINED THAT A FINAL
CONFIRMATION OF THE DELIVERY SCHEDULE SHOULD BE OBTAINED FROM THE
DIRECTOR, NCHS, AND THAT THE CONTRACTING OFFICER SHOULD PLACE A CALL TO
YOUR COMPANY TO RECONFIRM ITS PROPOSED DELIVERY SCHEDULE. THE DIRECTOR
DETERMINED THAT THE DELIVERY SCHEDULE COULD NOT BE RELAXED AND A CALL
WAS MADE TO YOUR COMPANY ON DECEMBER 1, 1970. IT IS REPORTED THAT YOUR
PRESIDENT RECONFIRMED THE COMPANY'S QUOTED DELIVERY SCHEDULE AND STATED
THAT THE FIRM WAS NOT IN A POSITION TO MEET THE RFP DELIVERY
REQUIREMENTS. FROM THIS IT WAS DETERMINED THAT YOUR PROPOSAL COULD NOT
BE GIVEN FURTHER CONSIDERATION FOR THIS PROCUREMENT. ON THE SAME DATE, A
REQUEST FOR A FIXED-PRICE PROPOSAL WAS SENT TO PRITCHARD-KING, INC. ON
DECEMBER 7, 1970, PRITCHARD-KING, INC., SUBMITTED ITS FIXED-PRICE
PROPOSAL. IN ORDER FOR THE CONTRACTOR TO MEET THE DELIVERY SCHEDULES IT
WAS FOUND NECESSARY TO PROVIDE IMMEDIATE CONTRACTUAL AUTHORIZATION TO
COMMENCE PERFORMANCE OF WORK PENDING COMPLETION OF AN AUDIT REVIEW AS
REQUIRED BY FPR 1-3.809(B), AND FINAL NEGOTIATION OF THE CONTRACT. A
LETTER OF INTENT TO EXECUTE A DEFINITIVE CONTRACT FOR THE ARTICLES AND
SERVICES DESCRIBED IN THE RFP WAS NEGOTIATED WITH PRITCHARD-KING, INC.,
ON DECEMBER 14, 1970, WHICH PROVIDED FOR DEFINITIZATION WITHIN 60 DAYS
FROM DATE OF AWARD. WE ARE ADVISED THAT CONTRACT NO. HSM-110-71-48 WAS
DEFINITIZED ON JANUARY 22, 1971, WITH PRITCHARD-KING, INC., AT A FIXED
PRICE ROUNDED TO $373,500.00. THE CONTRACT WAS DATED FEBRUARY 16, 1971,
AND NOTICE OF THE AWARD WAS PUBLISHED IN THE COMMERCE BUSINESS DAILY ON
MARCH 1, 1971.
BY LETTER DATED DECEMBER 16, 1970, RECEIVED BY YOU ON DECEMBER 21,
1970, YOU WERE ADVISED THAT YOUR TECHNICAL PROPOSAL DID NOT MEET THE
GOVERNMENT'S DELIVERY REQUIREMENTS AS SPECIFIED IN THE RFP, AND YOUR
COMPANY WOULD THEREFORE NOT BE SOLICITED FOR PRICES UNDER THE SECOND
STEP OF THE PROCUREMENT.
YOU PROTEST THAT YOU WERE NOT ALLOWED TO PARTICIPATE IN THE SECOND
STEP OF THE ABOVE PROCUREMENT, AND THE ENTIRE MANNER IN WHICH THE
NEGOTIATIONS WERE HANDLED BY HEW. YOU STATE THAT IT IS TRUE YOU WERE
TOLD THE GOVERNMENT DESIRED DELIVERY OF THOSE UNITS ON APRIL 1, 1971,
FOR PROJECTS COMMENCING ON THAT DATE, BUT THAT NO EMPHASIS WAS PLACED ON
THE DELIVERY DATE, AND YOUR REPRESENTATIVES WERE ADVISED DURING YOUR
PROPOSAL DISCUSSION MEETINGS OF NOVEMBER 12 AND 13, 1970, THAT THE
PROJECTS SHOULD HAVE BEEN STARTED IN 1970 AND THAT SOME OF THE
GOVERNMENT FURNISHED EQUIPMENT HAD BEEN PROCURED IN 1969. YOU
CATEGORICALLY DENY THAT IN EITHER MEETING YOUR REPRESENTATIVES WERE TOLD
YOUR DELIVERY SCHEDULE WAS UNACCEPTABLE, AND YOU ASK WHY ONLY 350
POINTS, OF THE TOTAL 6370 SCORING POINTS, WERE ALLOTTED TO DELIVERY IN
THE TECHNICAL EVALUATION IF THE SPECIFIED DELIVERY DATES WERE OF SUCH
IMPORTANCE. YOU SAY YOU SINCERELY FEEL THAT BECAUSE AN EXCEPTION TO YOUR
PROPOSED DELIVERY WAS NOT TAKEN BY THE GOVERNMENT AT EITHER MEETING, AND
BECAUSE OF THE LOW SCORE ASSIGNED TO DELIVERY, YOU WERE DEFINITELY
MISLED BY THE GOVERNMENT.
IN ADDITION, YOU NOTE THE STATEMENT IN THE CONTRACTING OFFICER'S
REPORT THAT THE CONTRACT CONTAINS A PROVISION FOR REDUCTION OF PROFIT
FOR LATE DELIVERY, AND YOU QUESTION THE PROPRIETY OF A DAMAGE PROVISION
WHICH ALLOWS THE CONTRACTOR A PROFIT, IRRESPECTIVE OF THE COST TO THE
GOVERNMENT OF A LATE DELIVERY, AND WHICH REQUIRES THE GOVERNMENT TO
ESTABLISH THAT THE CONTRACTOR HAS MADE A PROFIT BEFORE THE DAMAGE
PROVISION MAY BE INVOKED. YOU REQUEST BEFORE A FINAL DECISION IS
RENDERED ON YOUR PROTEST THAT THIS OFFICE DETERMINE WHETHER OR NOT
DELIVERY ON ITEMS 1 AND 2 HAVE BEEN MADE IN ACCORDANCE WITH THE
CONTRACT, AS YOU FEEL THAT THIS HAS A DIRECT BEARING ON THIS CASE. YOU
ALSO ASK WHY HEW IS PERMITTED TO PROCURE THESE CENTERS THROUGH ITS OWN
PURCHASING DEPARTMENT, AS YOU BELIEVE PROCUREMENT OF ALL TRAILERS,
REGARDLESS OF THE TYPE, SHOULD BE MADE THROUGH THE GENERAL SERVICES
ADMINISTRATION. FINALLY, YOU REQUEST THE IMMEDIATE CANCELLATION OF THE
CONTRACT BY HEW IF YOUR PROTEST IS RULED UPON FAVORABLY, OR THE
REIMBURSEMENT OF YOUR EXPENSES IN THE AMOUNT OF $7,500, FOR PREPARING
YOUR TECHNICAL PROPOSAL.
UNDER THE FIRST STEP OF THIS PROCUREMENT OFFERORS WERE AUTHORIZED AND
ENCOURAGED TO SUBMIT MULTIPLE TECHNICAL PROPOSALS PRESENTING DIFFERENT
BASIC APPROACHES, PROVIDED THAT EACH PROPOSAL SHOULD MEET THE CRITERIA
CONTAINED IN THE RFP. THE RFP FURTHER GAVE THE CRITERIA UPON WHICH THE
EVALUATION OF THE PROPOSALS WOULD BE BASED. EXHIBIT 1 TO THE RFP
INCLUDED THE REQUIREMENT THAT THE TECHNICAL PROPOSAL BE SO SPECIFIC,
DETAILED AND COMPLETE AS TO CLEARLY AND FULLY DEMONSTRATE THAT THE
OFFEROR HAD A THOROUGH UNDERSTANDING OF THE REQUIREMENTS FOR, AND THE
TECHNICAL PROBLEMS INHERENT IN THE DESIGN, MANUFACTURE AND DELIVERY OF
THE EQUIPMENT, AND HAD A VALID AND PRACTICAL SOLUTION FOR SUCH PROBLEMS.
THE PROPOSAL WAS REQUIRED TO INCLUDE MATERIAL, DEMONSTRATING THE METHOD
BY WHICH THE REQUIREMENTS OF THE RFP WOULD BE MET, AND PRODUCTION
SCHEDULES FOR VARIOUS COMPONENTS OF THE EQUIPMENT. THE RFP, INCLUDED
THE SPECIAL PROVISIONS OF THE PROPOSED CONTRACT, WHICH SET FORTH THE
DELIVERY REQUIREMENTS FOR THE CENTERS WITHIN THE TIME PERIODS SHOWN AS
FOLLOWS:
ITEM DELIVERY QUANTITY DESTINATION DELIVERY
1 MOBILE HEALTH EXAMINATION 1 BALTIMORE, FOUR (4)
CENTERS CONSISTING OF MD. MONTHS AFTER
THREE (3) INTERCONNECTING EFFECTIVE
SEMITRAILERS VANS DATE OF
CONTRACT
2 MOBILE HEALTH EXAMINATION 1 LOS ANGELES, FOUR (4)
CENTERS CONSISTING OF CALIF. MONTHS AFTER
THREE (3) INTERCONNECTION EFFECTIVE
SEMI-TRAILERS VANS DATE OF
CONTRACT
3 MOBILE HEALTH EXAMINATION 1 TO BE SIX (6)
CENTERS CONSISTING OF SPECIFIED MONTHS AFTER
INTERCONNECTING EFFECTIVE
SEMI-TRAILERS VANS DATE OF
CONTRACT
THE RFP RESERVED TO THE GOVERNMENT THE RIGHT TO CONDUCT NEGOTIATIONS
WITH THE PROPOSER IF ONLY ONE ACCEPTABLE PROPOSAL WAS RECEIVED.
ALTHOUGH THE RFP REQUIRED THAT PROPOSALS DEMONSTRATE AN UNDERSTANDING
OF THE DELIVERY REQUIREMENTS AND HOW THE OFFEROR PROPOSED TO MEET THOSE
REQUIREMENTS, AS WELL AS THE SUBMISSION OF PRODUCTION SCHEDULES FOR
VARIOUS COMPONENTS OF THE EQUIPMENT, YOUR PROPOSAL DID NOT INCLUDE OR
ADDRESS SUCH REQUIREMENTS. THE SUMMARY OF NEGOTIATIONS WITH YOUR FIRM,
AS SET OUT ABOVE, INDICATES THAT AFTER YOUR REPRESENTATIVES DISCLOSED
THAT YOU WOULD NEED A LONGER PERIOD FOR DELIVERY OF THE CENTERS, THEY
WERE ADVISED OF THE IMPORTANCE OF MEETING THE SPECIFIED DELIVERY
SCHEDULE AND THAT THE DELIVERY REQUIREMENTS COULD NOT BE RELAXED. YOU
DENY THAT YOUR REPRESENTATIVES WERE TOLD DURING THE NEGOTIATION MEETINGS
THAT YOUR DELIVERY SCHEDULE WAS UNACCEPTABLE, AND YOU SAY THAT SINCE A
LOW SCORE WAS ASSIGNED TO DELIVERY YOU WERE MISLED BY THE GOVERNMENT IN
THIS RESPECT.
IN ADDITION TO THE SUMMARY OF THE NEGOTIATIONS WITH YOUR FIRM, THE
RECORD CONTAINS THE FOLLOWING MEMORANDUM BY THE CONTRACTING OFFICER OF
HIS CONVERSATION ON DECEMBER 21, 1970, WITH YOUR WASHINGTON
REPRESENTATIVE:
"I RECEIVED A TELEPHONE CALL FROM MR. FREUND OF MEDICAL COACHES,
INC., ONEONTA, N. Y. HE WAS UPSET ABOUT THE LETTER WHICH ADVISED THAT
HIS COMPANY WAS NOT BEING SOLICITED FOR A COST PROPOSAL UNDER THE SECOND
STEP OF THE PROCUREMENT. I ASKED HIM IF HE WAS NOT SATISFIED WITH THE
EXPLANATION PROVIDED IN THE LETTER. HE REPLIED THAT IT WAS CORRECT IN
THAT HIS COMPANY FAILED TO MEET THE REQUIRED DELIVERY SCHEDULE, BUT THAT
HE SHOULD BE GIVEN AN OPPORTUNITY TO NEGOTIATE. I SAID I DIDN'T
UNDERSTAND, SINCE HIS COMPANY WAS INVITED TO A MEETING AT HSMHA TO
CLARIFY AND NEGOTIATE THE PROPOSAL. HE SAID THIS WAS TRUE AND IN FACT
AS A RESULT OF THESE DISCUSSIONS HIS COMPANY ADVISED THAT IT COULD NOT
MEET THE GOVERNMENT'S DELIVERY REQUIREMENTS. HOWEVER, HE NOW WANTED AN
OPPORTUNITY TO SUBMIT A NEW PROPOSAL. HE SAID THAT DUE TO COLD WEATHER,
THE TRAILERS WOULD HAVE BEEN CONSTRUCTED IN A HEATED FACILITY AND SINCE
HIS COMPANY WOULD NOT HAVE SUFFICIENT SPACE, THEY COULD NOT HAVE
PERFORMED. HOWEVER, IF THE GOVERNMENT WOULD DELAY AWARD OF THE CONTRACT
UNTIL LATER IN THE YEAR (AT LEAST 30 DAYS FROM THIS DATE) IT WOULD THEN
BE WARM ENOUGH TO CONSTRUCT THE TRAILERS OUTDOORS. I INFORMED MR.
FREUND THAT AN AWARD HAD ALREADY BEEN MADE TO ANOTHER FIRM. I OFFERED
TO HAVE THE CONTRACT NEGOTIATOR BRIEF HIM CONCERNING THE AWARD
INFORMATION. HE SAID HIS COMPANY MIGHT PROTEST THE AWARD, BUT THAT HE
WOULD FIRST CALL THE CONTRACT NEGOTIATOR FOR ADDITIONAL INFORMATION."
IN MATTERS OF THIS NATURE INVOLVING DISPUTED QUESTIONS OF FACT
BETWEEN THE ADMINISTATIVE OFFICERS OF THE GOVERNMENT AND CLAIMANTS OR
OTHER PERSONS DEALING WITH THE GOVERNMENT, IT IS THE LONG-ESTABLISHED
RULE OF THIS OFFICE TO ACCEPT THE FACTS AS SHOWN BY THE ADMINISTRATIVE
RECORDS, IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE
PRESUMPTION OF THEIR CORRECTNESS. 3 COMP. GEN. 51 (1923); 16 ID. 325
(1936). WHILE YOU DENY THE ADMINISTRATIVE STATEMENTS THAT YOU WERE
INFORMED OF THE NECESSITY FOR MEETING THE DELIVERY SCHEDULE SET OUT IN
THE RFP, SUCH DENIAL DOES NOT CONSTITUTE SUFFICIENT EVIDENCE TO JUSTIFY
A REJECTION BY THIS OFFICE OF THE ADMINISTRATIVE VERSION OF THE FACTS.
CONCERNING YOUR CONTENTION THAT THE 350 SCORING POINTS (OUT OF A
TOTAL OF 6370 POINTS) ASSIGNED TO DELIVERY IN THE EVALUATION OF
PROPOSALS INDICATE THAT THE SPECIFIED DELIVERY DATES WERE NOT IMPORTANT,
IT SHOULD BE NOTED THAT THE 350 POINTS WERE NOT ASSIGNED ON THE BASIS OF
MEETING DELIVERY REQUIREMENTS, AS YOU IMPLY, BUT WERE ASSIGNED FOR
"PROOF" OF DELIVERY. IT IS REPORTED THAT THESE POINTS WERE ALLOCATED TO
THE MATERIAL SUBMITTED BY AN OFFEROR TO SUPPORT THE DELIVERY SCHEDULE,
SUCH AS SUBCONTRACTOR CONTROLS, PRODUCTION CAPABILITY, ETC. WE AGREE
WITH THE POSITION OF THE AGENCY THAT THE RELATIVELY LOW NUMBER OF POINTS
WHICH WERE ASSIGNED FOR PROOF THAT THE DELIVERY SCHEDULE WOULD BE MET
MAY NOT PROPERLY BE CONSTRUED AS A RELAXATION OF THE SPECIFIED DELIVERY
REQUIREMENTS.
REGARDING YOUR CONCERN THAT THE LIQUIDATED DAMAGES PROVISION IS
IMPROPER AND THAT SUCH DAMAGES WOULD NOT BE ASSESSED IN CASE OF LATE
DELIVERY OF ANY OF THE ITEMS BY THE CONTRACTOR, THE CONTRACT'S INCENTIVE
AND DAMAGE CLAUSE PROVIDES INCENTIVE PAYMENT ON THE FIRST TWO CENTERS OF
$100 A DAY FOR THE FIRST SEVEN DAYS, AND $200 A DAY THEREAFTER UP TO AND
INCLUDING THE 14TH DAY, FOR DELIVERY PRIOR TO THE CONTRACT SCHEDULE.
DAMAGES FOR DELIVERY OF THOSE TWO CENTERS AFTER THE CONTRACT SCHEDULE
ARE ASSESSED AT THE RATE OF $300 A DAY FOR THE FIRST SEVEN DAYS AND AT
THE RATE OF $600 A DAY THEREAFTER, BUT NOT TO THE EXTENT OF REDUCING THE
CONTRACT PRICE BY AN AMOUNT GREATER THAN $19,011.55. IT IS REPORTED
THAT THE CONTRACTOR WAS FIVE DAYS EARLY IN DELIVERING THE FIRST CENTER,
FOR WHICH IT IS ENTITLED TO $500 INCENTIVE PAYMENT, AND THAT THE
CONTRACTOR WAS 22 DAYS LATE IN DELIVERING THE SECOND CENTER, FOR WHICH
IT WILL BE ASSESSED $11,000 AS DAMAGES. WHILE THE MAXIMUM AMOUNT OF
$19,011.55 ASSESSABLE AS LIQUIDATED DAMAGES WAS BASED ON A PERCENTAGE OF
THE CONTRACTOR'S NEGOTIATED PROFIT FIGURE, THE ASSESSMENT OF DAMAGES IS
NOT DEPENDENT UPON THE CONTRACTOR MAKING AN ACTUAL PROFIT ON THE
CONTRACT, AS YOU HAVE INDICATED THE CONTRACTING OFFICER'S STATEMENT
SEEMS TO IMPLY. WE AGREE, HOWEVER, WITH YOUR CONTENTION THAT THE
FEDERAL PROCUREMENT REGULATIONS (SECTION 1-1.315) PROVIDE FOR ASSESSMENT
OF DAMAGES UNTIL DELIVERY IS MADE, AND DO NOT SEEM TO CONTEMPLATE THAT
THE AMOUNT OF LIQUIDATED DAMAGES ASSESSABLE FOR A LATE DELIVERY BE
LIMITED TO A PERCENTAGE OF THE CONTRACTOR'S ANTICIPATED PROFIT,
PARTICULARLY WHERE, AS HERE, THE DAMAGES TO THE GOVERNMENT CONTINUE TO
ACCRUE UNTIL DELIVERY IS MADE. WE ARE SO ADVISING THE SECRETARY OF HEW.
IN ANSWER TO YOUR CONTENTION THAT THE PROCUREMENT SHOULD HAVE BEEN
HANDLED BY GSA, RATHER THAN HEW, IN THE ABSENCE OF A CITATION TO THE
STATUTE OR REGULATION WHICH YOU BELIEVE REQUIRES THAT PROCEDURE, WE ARE
UNABLE TO COMMENT AS TO ITS APPLICATION TO THE SUBJECT CASE. HOWEVER,
ANY OBJECTIONS OF THIS NATURE SHOULD HAVE BEEN PRESENTED PRIOR TO YOUR
PARTICIPATION IN THE PROCUREMENT.
CONCERNING YOUR REQUEST THAT YOU BE REIMBURSED FOR EXPENSES INCURRED
IN PREPARING YOUR TECHNICAL PROPOSAL FOR THE FIRST STEP, IN HEYER
PRODUCTS COMPANY, INC. V UNITED STATES, 135 CT. CL. 71 (1956), IT WAS
STATED:
" *** RECOVERY CAN BE HAD ONLY IN THOSE CASES WHERE IT CAN BE SHOWN
BY CLEAR AND CONVINCING PROOF THAT THERE HAS BEEN A FRAUDULENT
INDUCEMENT FOR BIDS, WITH THE INTENTION, BEFORE THE BIDS WERE INVITED OR
LATER CONCEIVED, TO DISREGARD THEM ALL EXCEPT THE ONES FROM BIDDERS TO
ONE OF WHOM IT WAS INTENDED TO LET THE CONTRACT, WHETHER HE WAS THE
LOWEST RESPONSIBLE BIDDER OR NOT. IN OTHER WORDS, IT MUST BE SHOWN THAT
BIDS WERE NOT INVITED IN GOOD FAITH, BUT AS A PRETENSE TO CONCEAL THE
PURPOSE TO LET THE CONTRACT TO SOME FAVORED BIDDER, OR TO ONE OF A GROUP
OF PREFERRED BIDDERS, AND WITH THE INTENT TO WILFULLY, CAPRICIOUSLY, AND
ARBITRARILY DISREGARD THE OBLIGATION TO LET THE CONTRACT TO HIM WHOSE
BID WAS MOST ADVANTAGEOUS TO THE GOVERNMENT."
WE HELD IN B-150159, DECEMBER 6, 1963, IN THIS REGARD, AS FOLLOWS:
"FURTHER, WE FEEL THAT THE HEYER PRODUCTS PRINCIPLE IS FOR
APPLICATION ONLY WHERE A CONTRACT IS AWARDED UNDER FALSE PRETENSES TO
OTHER THAN THE LEGALLY ENTITLED BIDDER. *** "
SINCE THE FACTS OF THE PRESENT CASE, AS SET OUT ABOVE, DO NOT COMPARE
WITH THOSE ENTITLING BIDDERS TO BID PREPARATION EXPENSES UNDER THE
RATIONALE OF THE HEYER PRODUCTS CASE, YOUR CLAIM FOR REIMBURSEMENT OF
YOUR PROPOSAL PREPARATION EXPENSES MUST BE DISALLOWED.
ACCORDINGLY, BOTH YOUR CLAIM AND YOUR PROTEST MUST BE DENIED.
B-171578(2), JUL 28, 1971
BID PROTEST - DELIVERY SCHEDULE - LIQUIDATED DAMAGES
RECOMMENDATIONS INCIDENT TO DENYING PROTEST BY MEDICAL COACHES, INC.
AGAINST AWARD OF A CONTRACT TO PRITCHARD-KING, INC. UNDER AN RFP ISSUED
BY HEW.
WHILE THE COMP. GEN. HAS DENIED THE PROTEST, ACTION SHOULD BE TAKEN
TO PRECLUDE THE RECURRENCE OF SEVERAL PRACTICES IN THE FUTURE. IF THE
DELIVERY SCHEDULE WAS A MANDATORY REQUIREMENT, A PROVISION SHOULD HAVE
BEEN INCLUDED IN THE FIRST STEP ADVISING OFFERORS THAT PROPOSALS
CONTAINING NONCONFORMING SCHEDULES WOULD BE REJECTED AS NONRESPONSIVE.
ALSO, THE COMP. GEN. DOES NOT CONSIDER IT PROPER TO INCORPORATE INTO A
FIXED-PRICE CONTRACT A LIQUIDATED DAMAGE PROVISION LIMITED, OR
DETERMINED BY THE CONTRACTOR'S ANTICIPATED PROFIT ON THE CONTRACT.
TO MR. SECRETARY:
REFERENCE IS MADE TO LETTER DATED FEBRUARY 12, 1971, WITH ENCLOSURE,
FURNISHING A REPORT IN THE MATTER OF THE PROTEST MADE BY MEDICAL
COACHES, INC., AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER
REQUEST FOR PROPOSAL HSM-110-NHS-14, ISSUED BY THE DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE.
THERE IS ENCLOSED A COPY OF OUR LETTER OF TODAY TO THE COMPANY
DENYING ITS PROTEST.
WHILE WE HAVE DENIED THE PROTEST, WE ARE CALLING TO YOUR ATTENTION
CERTAIN DEFECTS IN THE PROCEDURES FOLLOWED, AND WE SUGGEST THAT
APPROPRIATE ACTION BE TAKEN TO PRECLUDE THEIR RECURRENCE IN FUTURE
PROCUREMENTS.
IT SEEMS EVIDENT THAT, INASMUCH AS YOUR DEPARTMENT CONSIDERED THE
DELIVERY SCHEDULE TO BE A MANDATORY REQUIREMENT, THE PRINCIPAL ISSUE OF
THE PROTEST COULD HAVE BEEN PREVENTED HAD THERE BEEN INCLUDED IN THE
FIRST STEP A PROVISION SPECIFICALLY ADVISING OFFERORS THAT PROPOSALS
CONTAINING NONCONFORMING SCHEDULES WOULD BE CONSIDERED NONRESPONSIVE AND
REJECTED, SUCH AS PARAGRAPH 6 OF THE INSTRUCTIONS TO OFFERORS PREPARED
FOR USE IN THE SECOND STEP.
AS STATED IN OUR DECISION, WE DO NOT CONSIDER IT PROPER TO
INCORPORATE INTO A FIXED-PRICE CONTRACT A LIQUIDATED DAMAGE PROVISION
UNDER WHICH THE EXTENT OF THE DAMAGES RECOVERABLE BY THE UNITED STATES
IS LIMITED, OR DETERMINED, BY THE CONTRACTOR'S ANTICIPATED PROFIT ON THE
CONTRACT. IN CONTRACTS OF THIS NATURE, LIQUIDATED DAMAGE PROVISIONS
SERVE AS THE ONLY PRACTICAL MEASURE OF COMPENSATION TO THE GOVERNMENT
FOR DAMAGE INCIDENT TO DELAY IN DELIVERY. THE RATE OF LIQUIDATED
DAMAGES STIPULATED MUST BE REASONABLE IN RELATION TO ANTICIPATED DAMAGES
(SEE SECTION 1-1.315-2(C) OF THE FEDERAL PROCUREMENT REGULATIONS) AND
SUCH CONTRACT PROVISIONS HAVE BEEN UNIFORMLY UPHELD EVEN THOUGH THE
LIQUIDATED DAMAGES INCURRED EXCEED THE CONTRACT PRICE, 46 COMP. GEN. 252
(1966). WE FIND THE "INCENTIVE/PENALTY" CLAUSE USED IN THE INSTANT
CONTRACT TO BE PARTICULARLY OBJECTIONABLE BECAUSE IT IS BASED ON THE
PREMISE OF ALLOWING THE CONTRACTOR TO RETAIN A PERCENTAGE OF ITS
ANTICIPATED PROFIT ON THE CONTRACT EVEN THOUGH THE GOVERNMENT MAY
SUSTAIN EXTENSIVE UNRECOVERABLE DAMAGES BY REASON OF THE CONTRACTOR'S
FAILURE TO DELIVER IN ACCORDANCE WITH THE CONTRACT TERMS. IN ADDITION,
ALTHOUGH "PENALTY" PROVISIONS WILL BE CONSTRUED IN A MANNER TO GIVE
EFFECT TO THE INTENTION OF THE PARTIES, 18 COMP. GEN. 503 (1938), THE
USE OF THAT TERM RATHER THAN "LIQUIDATED DAMAGES" IN CLAUSES PERTAINING
TO DELIVERY PROVISIONS OF GOVERNMENT CONTRACTS IS OBJECTIONABLE INASMUCH
AS TRUE PENALTY PROVISIONS ARE NOT ENFORCEABLE, 16 COMP. GEN. 344 (1936)
AND FPR 1-1.315-2(C).
FPR 1-1.315-2(B) PROVIDES THAT IN MAKING DECISIONS AS TO WHETHER
LIQUIDATED DAMAGES PROVISIONS ARE TO BE USED, CONSIDERATION SHOULD BE
GIVEN TO THEIR PROBABLE EFFECT ON SUCH MATTERS AS PRICING, COMPETITION,
ETC. IT IS CLEAR THAT ONLY THE GOVERNMENT IS IN THE POSITION OF
DETERMINING THE MEASURE OF DAMAGES IT IS LIKELY TO INCUR BY REASON OF A
LATE DELIVERY, OR THE ADVANTAGES IT WILL DERIVE FROM AN EARLY DELIVERY.
IT IS ALSO AN ELEMENTARY PRINCIPLE OF COMPETITION FOR GOVERNMENT
CONTRACTS THAT THE SAME CONTRACT MUST BE OFFERED TO ALL COMPETITORS.
HOWEVER, NOT ONLY DID THE PROCURING ACTIVITY, IN PREPARING THE MATERIAL
FOR THE SOLICITATION OF FIXED-PRICE PROPOSALS UNDER THE SECOND STEP,
FAIL TO ESTABLISH AND INFORM PROSPECTIVE OFFERORS OF THE AMOUNTS WHICH
WOULD BE APPLICABLE FOR EARLY AND LATE DELIVERIES, BUT SUCH AMOUNTS WERE
TO BE SOLICITED FROM THE INDIVIDUAL OFFERORS UNDER A NOTICE IN THE
GENERAL PROVISIONS, ALTERATIONS, AND BILLING INSTRUCTIONS STATING:
" *** OFFERORS ARE REQUESTED TO SUBMIT, AS PART OF THEIR COST
PROPOSAL, A DAILY RATE TO BE ADDED TO THEIR PROFIT IN THE CASE OF EARLY
DELIVERY AND A DAILY RATE TO BE DEDUCTED FROM THEIR PROFIT FOR EACH DAY
OF LATE DELIVERY."
WE ALSO NOTE THAT ALTHOUGH YOUR DEPARTMENT APPEARS TO HAVE CONSIDERED
THE SPECIFIED DELIVERY REQUIREMENTS TO BE ESSENTIAL FOR ALL THREE
CENTERS, THE THIRD CENTER IS NOT INCLUDED IN THE INCENTIVE AND
LIQUIDATED DAMAGES PROVISIONS OF THE CONTRACT.
B-171941, JUL 28, 1971
CONTRACTS - CHANGED CONDITIONS - CONTRACTOR'S ACTUAL KNOWLEDGE
DECISION DENYING APPEAL FROM AN ADVANCE RULING BY THE ENGINEERING
BOARD OF CONTRACT APPEALS ON CONTRACTOR'S CLAIM FOR ADDITIONAL PAYMENTS
OF $4,190.08 UNDER THE DIFFERING SITE CONDITIONS CLAUSE OF A CONTRACT
WITH THE CORPS OF ENGINEERS FOR CONSTRUCTION OF ADDITIONAL WATER SUPPLY
AND SEWAGE FACILITIES FOR THE HERMITAGE PUBLIC USE AREA OF THE POMME DE
TERRE RESERVOIR IN MISSOURI.
BECAUSE THE CORPS OF ENGINEERS MADE NO REPRESENTATION AS TO THE
SUBSURFACE CONDITIONS, CONTRACTOR CANNOT RECOVER UNDER PART "A" OF THE
DIFFERING SITE CONDITION CLAUSE WHICH COVERS CONDITIONS AT THE SITE
DIFFERING MATERIALLY FROM THOSE INDICATED IN THE CONTRACT. FURTHER, THE
COMP. GEN. BELIEVES THAT THERE CAN BE NO RECOVERY UNDER PART "B" BECAUSE
THE ROCKY CONDITIONS WERE NOT "UNKNOWN." IN FACT, THE RECORD INDICATES
THAT SOUTHWEST HAD ACTUAL KNOWLEDGE OF THE SUBSURFACE CONDITIONS, HAVING
PERFORMED A CONTRACT AT THE SAME SITE THREE YEARS EARLIER.
TO SOUTHWEST ENGINEERING COMPANY, INCORPORATED:
THIS OFFICE HAS CONSIDERED YOUR APPEAL OF FEBRUARY 11, 1971, FOR
REVIEW OF THE DECISION DATED JUNE 29, 1970, OF THE ENGINEERING BOARD OF
CONTRACT APPEALS NO. 3070 WHICH DENIED YOUR CLAIM FOR ADDITIONAL
PAYMENTS UNDER THE DIFFERING SITE CONDITIONS CLAUSE OF CONTRACT NO.
DACW41-68-C-0177.
THE CONTRACT WAS AWARDED JUNE 28, 1968, TO SOUTHWEST ENGINEERING
COMPANY, INCORPORATED (SOUTHWEST), WHICH SUBMITTED THE LOWER OF TWO BIDS
IN RESPONSE TO AN INVITATION FOR BID FOR CONSTRUCTION OF ADDITIONAL
WATER SUPPLY AND SEWAGE FACILITIES FOR THE HERMITAGE PUBLIC USE AREA OF
THE POMME DE TERRE RESERVOIR IN MISSOURI. PREVIOUSLY, IN 1965,
SOUTHWEST BUILT THE ORIGINAL FACILITIES AT THIS LOCATION, A
LATRINE-SHOWER BUILDING, A WATER WELL, A SEPTIC TANK, ROADWAYS, AND
SIDEWALK. THE AMOUNT OF THE 1968 CONTRACT FOR THE ADDITIONAL FACILITIES
WAS $19,298; THE PROJECT WAS COMPLETED AND ACCEPTED BY THE CORPS OF
ENGINEERS DECEMBER 12, 1968.
SOUTHWEST HAS SUBMITTED A CLAIM FOR AN EQUITABLE ADJUSTMENT OF
$4,190.08, UNDER CLAUSE 4 (DIFFERING SITE CONDITIONS) OF THE CONTRACT.
THE CLAIM WAS MADE FOR WORK UNDERTAKEN BY SOUTHWEST WHEN IT ENCOUNTERED
ROCK WHILE DIGGING TRENCHES FOR WATER AND SEWER LINES. ON ACCOUNT OF
THIS SUBSURFACE CONDITION MORE COSTLY EXCAVATION BY BLASTING AND BY PICK
AND SHOVEL WAS NECESSARY RATHER THAN EXCAVATION BY BACKHOE. THE CLAIM
WAS DENIED BY THE CONTRACTING OFFICER AND THEN BY THE BOARD ON THE
GROUND THAT SOUTHWEST DID NOT ENCOUNTER A DIFFERING SITE CONDITION
WITHIN THE MEANING OF CLAUSE 4 OF THE GENERAL PROVISIONS OF THE
CONTRACT.
SOUTHWEST ALLEGES THAT IT HAS A RIGHT TO AN EQUITABLE ADJUSTMENT
BECAUSE THE CORPS OF ENGINEERS GAVE NO INDICATION EITHER IN THE
INVITATION FOR BIDS OR IN PRE-BID SURVEYS THAT THERE WERE UNUSUAL
SUBSURFACE CONDTIONS ON THE CONSTRUCTION SITE WHICH WOULD REQUIRE MORE
EXPENSIVE EXCAVATING TECHNIQUES. SOUTHWEST ALSO INSISTS THAT IT
JUSTIFIABLY RELIED UPON THE SPECIFICATIONS WHICH SHOWED NO TEST BORINGS
FOR THE LOCATION WHERE THE SUBSURFACE ROCK WAS ENCOUNTERED, ALTHOUGH
THEY DID SHOW TEST BORINGS FOR A SEWER CONSTRUCTED UNDER THIS CONTRACT.
THE BORING NEAREST TO THE AREA WHERE THE SUBSURFACE ROCK WAS ENCOUNTERED
WAS APPROXIMATELY 100 FEET AWAY. SOUTHWEST ALLEGES THAT THESE
SPECIFICATIONS LED IT TO BELIEVE THAT NO UNUSUAL SUBSURFACE CONDITIONS
WOULD BE ENCOUNTERED WHERE NO BORINGS WERE NECESSARY.
EVIDENCE WAS PRESENTED TO THE BOARD THAT REPRESENTATIVES OF THE CORPS
OF ENGINEERS THEMSELVES HAD ACTUAL KNOWLEDGE BEFORE THE 1968 CONTRACT
WAS AWARDED THAT THERE WAS SUBSURFACE ROCK AT THE SITE OF THE
EXCAVATIONS. THIS EVIDENCE IS BASED ON THE RECORD OF THE 1965 CONTRACT
WITH SOUTHWEST FOR CONSTRUCTION OF THE HERMITAGE PUBLIC USE AREA. THE
RECORD CONTAINS DAILY LOGS DESCRIBING ROCK EXCAVATION, PHOTOGRAPHS OF
ROCK EXCAVATED, AND A MODIFICATION OF THE SPECIFICATIONS MADE IN ORDER
TO AVOID ADDITIONAL EXPENSE FOR ROCK EXCAVATION.
BUT THE CORPS OF ENGINEERS PRESENTED EVIDENCE TO THE BOARD THAT
SOUTHWEST ALSO HAD ACTUAL KNOWLEDGE OF THE SPECIFIC SUBSURFACE
CONDITIONS WHICH CAUSED THE EXTRA WORK IN EXCAVATING THE TRENCHES UNDER
THE 1968 CONTRACT. EVIDENCE IN THE RECORD OF THE 1965 CONTRACT,
MENTIONED ABOVE, SHOWS THAT MR. P. H. ANDERSON, THE PRESIDENT OF
SOUTHWEST WHO PERSONALLY SUPERVISED THE PERFORMANCE OF BOTH CONTRACTS AT
THE HERMITAGE PUBLIC USE AREA, ACTUALLY KNEW ABOUT THE SUBSURFACE ROCK
CONDITIONS WHEN HE SUBMITTED SOUTHWEST'S BID FOR THE 1968 CONTRACT. THE
DAILY LOGS OF THE 1965 CONTRACT SHOW THAT EMPLOYEES OF SOUTHWEST
ENCOUNTERED ROCK DURING EXCAVATION FOR A SEPTIC TANK AND SEWER LINE
20-40 FEET FROM THE AREAS WHERE ROCK WAS ENCOUNTERED DURING EXCAVATIONS
FOR THE 1968 CONTRACT. PHOTOGRAPHS OF THE SITE TAKEN DURING PERFORMANCE
OF THE 1965 CONTRACT ALSO SHOW ROCK WHICH WAS PRESUMABLY EXCAVATED AT
THE SITE. FURTHERMORE, REPRESENTATIVES OF THE CORPS OF ENGINEERS AND
MR. ANDERSON AGREED TO THE MODIFICATION OF THE SPECIFICATIONS MENTIONED
ABOVE. THIS MODIFICATION RAISED THE ELEVATION OF A SIDEWALK AND
DRIVEWAY IN ORDER TO AVOID SUBSURFACE ROCK NEAR THE LATRINE-SHOWER
BUILDING WHICH WOULD OTHERWISE HAVE RESULTED IN ADDITIONAL EXCAVATION
COSTS TO SOUTHWEST. IT IS MOST SIGNIFICANT THAT AS A RESULT OF THIS
MODIFICATION SOUTHWEST PUT A CONCRETE SIDEWALK AND CRUSHED ROCK DRIVEWAY
DIRECTLY ON TOP OF SOLID ROCK IN PLACES WHERE IT LATER ENCOUNTERED ROCK
WHILE EXCAVATING TRENCHES FOR THE NEW CONTRACT. FINALLY, THE SWORN
STATEMENTS OF SEVERAL EMPLOYEES OF THE CORPS OF ENGINEERS WHO DEALT WITH
MR. ANDERSON ATTESTED TO THE FACT THAT HE ACTUALLY OBSERVED THESE
SUBSURFACE CONDITIONS ON MANY OCCASIONS. SOUTHWEST ENCOUNTERED THE SAME
CONDITIONS IN THE SAME LOCATION WHILE EXCAVATING WATER AND SEWER
TRENCHES UNDER THE 1968 CONTRACT. THE CLAIM NOW BEING CONSIDERED IS FOR
ADDITIONAL COSTS INCURRED IN THESE EXCAVATIONS.
THE CONTRACT BETWEEN SOUTHWEST AND THE CORPS OF ENGINEERS INCLUDED A
GENERAL PROVISION ALLOWING AN EQUITABLE ADJUSTMENT IN CONSIDERATION FOR
COMPENSATING THE CONTRACTOR FOR COSTS INCURRED ON ACCOUNT OF AN
UNFORESEEN SITE CONDITION. CLAUSE 4 (DIFFERING SITE CONDITIONS) READS
IN PART, AS FOLLOWS:
"THE CONTRACTOR SHALL PROMPTLY, AND BEFORE SUCH CONDITIONS ARE
DISTURBED, NOTIFY THE CONTRACTING OFFICER IN WRITING OF: (A) SUBSURFACE
OR LATENT PHYSICAL CONDITIONS AT THE SITE DIFFERING MATERIALLY FROM
THOSE INDICATED IN THIS CONTRACT, OR (B) UNKNOWN PHYSICAL CONDITIONS AT
THE SITE, OF AN UNUSUAL NATURE, DIFFERING MATERIALLY FROM THOSE
ORDINARILY ENCOUNTERED AND GENERALLY RECOGNIZED AS INHERING IN WORK OF
THE CHARACTER PROVIDED FOR IN THIS CONTRACT *** ."
THE BOARD CONCLUDED THAT SOUTHWEST COULD NOT CLAIM AN EQUITABLE
ADJUSTMENT UNDER SECTION (A) ON THE GROUND THAT THE CONTRACT MADE NO
REPRESENTATION ABOUT THE SUBSURFACE CONDITIONS OF THE SPECIFIC AREA NEAR
THE LATRINE-SHOWER BUILDING WHERE SOUTHWEST ENCOUNTERED ROCK WHILE
EXCAVATING. WE FIND THAT THIS POSITION IS SUPPORTED BY THE FOLLOWING
LANGUAGE OF THE COURT OF CLAIMS:
"THE CHANGED CONDITIONS CLAUSE PROVIDES, IN THE DISJUNCTIVE, TWO
SEPARATE BASES FOR THE REIMBURSEMENT OF UNANTICIPATED COSTS. THE FIRST
ALTERNATIVE ALLOWS RECOVERY IF THE CONTRACTOR DISCOVERS 'SUBSURFACE
CONDTIONS' 'MATERIALLY DIFFERING FROM THOSE SHOWN ON THE DRAWINGS OR
INDICATED IN THE SPECIFICATIONS.' THIS CLAUSE CANNOT BE INVOKED IF THE
PLANS AND SPECIFICATIONS DO NOT 'SHOW' OR 'INDICATE' ANYTHING ABOUT THE
ALLEGED UNFORESEEN CONDITION, I.E., IF THEY SAY 'NOTHING ONE WAY OR THE
OTHER ABOUT SUBSURFACE WATER'." UNITED CONTRACTORS V UNITED STATES, 368
F. 2D 585 (1966). SEE ALSO RAGONESE V UNITED STATES, 120 F. SUPP. 768
(1954).
THE BOARD ALSO FOUND THAT SOUTHWEST COULD NOT MAKE A VALID CLAIM
UNDER SECTION (B) OF CLAUSE 4. WE AGREE. THE EVIDENCE IN THIS CASE
INDICATES THAT SOUTHWEST NOT ONLY KNEW ABOUT SUBSURFACE ROCK CONDITIONS
IN THE GENERAL AREA BUT ALSO HAD ACTUAL KNOWLEDGE THAT THERE WAS
SUBSURFACE ROCK IN THE SPECIFIC AREA WHERE IT CLAIMS IT ENCOUNTERED
"UNKNOWN PHYSICAL CONDITIONS." IT HAS ONLY SOUGHT TO SHOW THAT THE CORPS
OF ENGINEERS MUST BE CHARGED WITH THE SAME KNOWLEDGE AND THAT SOUTHWEST
HAD A RIGHT TO RELY SOLELY ON THE SPECIFICATIONS WHICH GAVE NO
INDICATION OF THE SUBSURFACE CONDITIONS WHICH CAUSED ADDITIONAL
EXCAVATION COSTS FOR SOUTHWEST. THIS OFFICE BELIEVES, HOWEVER, THAT
SOUTHWEST'S ACTUAL KNOWLEDGE OF THE SPECIFIC SUBSURFACE CONDITIONS OF
THE HERMITAGE SITE PREVENTS IT FROM QUALIFYING FOR AN EQUITABLE
ADJUSTMENT UNDER CLAUSE 4 OF THE CONTRACT. THE "CONSISTENT HOLDING" OF
THE COURT OF CLAIMS FOR DECIDING WHAT IS AN UNKNOWN PHYSICAL CONDITION
OF AN UNUSUAL NATURE DIFFERING MATERIALLY FROM THOSE ORDINARILY
ENCOUNTERED IS "ONE THAT COULD NOT BE REASONABLY ANTICIPATED BY THE
CONTRACTOR FROM HIS STUDY OF THE CONTRACT DOCUMENTS, HIS INSPECTION OF
THE SITE, AND HIS GENERAL EXPERIENCE, IF ANY, AS A CONTRACTOR IN THE
AREA." PERINI CORPORATION V UNITED STATES, 381 F. 2D 403, 410 (CT. CL.
1967).
WE THEREFORE AGREE WITH THE DECISION OF THE CORPS OF ENGINEERS BOARD
OF CONTRACT APPEALS DENYING THE CLAIM BY SOUTHWEST ENGINEERING COMPANY,
INCORPORATED, FOR AN EQUITABLE ADJUSTMENT UNDER CLAUSE 4. WE HAVE
ENCLOSED THAT PORTION OF THE RECORD WHICH SOUTHWEST SUBMITTED FROM ITS
OWN FILES.
B-172741, JUL 28, 1971
BID PROTEST - BIDDER RESPONSIBILITY - LICENSE REQUIREMENT
DECISION DENYING PROTEST OF ALASKA FUEL AND TRANSFER INCORPORATED,
THIRD LOW BIDDER, AGAINST AWARD OF CONTRACT TO CMG EQUIPMENT SUPPLY
COMPANY, SECOND LOW BIDDER, UNDER IFB ISSUED BY ELMENDORF AIR FORCE
BASE, ALASKA, FOR DELIVERY OF AIR FORCE OWNED FUEL ON AND OFF BASE.
A LICENSE REQUIREMENT IN AN INVITATION IS A REQUIREMENT CONCERNING
THE RESPONSIBILITY OF PROSPECTIVE CONTRACTORS AND IS NOT RELATED TO AN
EVALUATION OF THE BID; THEREFORE, CMG'S FAILURE TO POSSESS PROPER STATE
LICENSES DID NOT RENDER THEIR BID NONRESPONSIVE. NOR DID IT MAKE CMG A
NONRESPONSIBLE BIDDER AS OFF BASE DELIVERIES WERE SUBCONTRACTED TO A
LICENSED FIRM, AS PERMITTED, AND PERFORMANCE ON THE BASE, A FEDERAL
RESERVATION, DID NOT REQUIRE A STATE LICENSE. THE PROTEST IS
CONSEQUENTLY DENIED.
TO ALASKA FUEL AND TRANSFER, INCORPORATED:
REFERENCE IS MADE TO YOUR TELEFAX DATED APRIL 24, 1971, AND
SUBSEQUENT CORRESPONDENCE PROTESTING AGAINST THE AWARD OF A CONTRACT TO
CMG EQUIPMENT SUPPLY COMPANY UNDER INVITATION FOR BIDS NO.
F65501-71-B-2660, ISSUED AT ELMENDORF AIR FORCE BASE, ALASKA.
THE SUBJECT SOLICITATION ISSUED FEBRUARY 23, 1971, WAS A 100 PERCENT
SET-ASIDE FOR SMALL BUSINESS CONCERNS. IT CALLED FOR THE DELIVERY OF
AIR FORCE OWNED FUEL ON AND OFF ELMENDORF AIR FORCE BASE. THE THREE
BIDS RECEIVED WERE AS FOLLOWS:
DENALI FUEL COMPANY $34,681.18
CMG EQUIPMENT SUPPLY $36,226.60
ALASKA FUEL & TRANSFER INCORPORATED $48,517.50
IT IS ADMINISTRATIVELY REPORTED THAT YOU HAD PREVIOUSLY FILED A
PROTEST WITH THE AIR FORCE BY LETTER OF MARCH 16, 1971, ALLEGING THAT
THE LOW BIDDER, DENALI FUEL COMPANY, WAS NOT A SMALL BUSINESS, AND THAT
CMG EQUIPMENT SUPPLY DID NOT HOLD THE PROPER PERMITS AND LICENSES TO
SUBMIT A BID. BY LETTER DATED APRIL 14, 1971, THE SMALL BUSINESS
ADMINISTRATION (SBA), DETERMINED THAT DENALI FUEL COMPANY WAS NOT
QUALIFIED AS A SMALL BUSINESS IN RELATION TO THE SUBJECT PROCUREMENT AND
THEREFORE NOT ELIGIBLE FOR AWARD. IT IS FURTHER REPORTED THAT IN THE
PROCESS OF QUALIFYING THE SECOND LOW BIDDER, CMG EQUIPMENT SUPPLY, A
SECOND REQUEST WAS MADE TO SBA FOR A SIZE DETERMINATION.
BY LETTER DATED APRIL 14, 1971, SBA ADVISED THE CONTRACTING OFFICER
THAT CMG EQUIPMENT SUPPLY WAS A SMALL BUSINESS CONCERN WITH RESPECT TO
THE SUBJECT SOLICITATION.
YOU ALLEGE IN YOUR TELEFAX DATED MAY 3, 1971, THAT CMG EQUIPMENT
SUPPLY COMPANY IS AFFILIATED WITH ARTIC NORTH STAR FUEL COMPANY,
INCORPORATED, AND IS THEREFORE NOT A SMALL BUSINESS CONCERN. BY LETTER
DATED APRIL 1, 1971, TO SBA, THE CONTRACTING OFFICER REQUESTED A
DETERMINATION OF SMALL BUSINESS SIZE STATUS FOR CMG EQUIPMENT SUPPLY
STATING "THE INDICATIONS IN YOUR LETTER, DATED 25 MARCH 1971, THAT
C.M.G. EQUIPMENT SUPPLY MAY BE AFFILIATED WITH ARTIC NORTH STAR FUEL
COMPANY HAS NECESSITATED THE CONTRACTING OFFICER'S REQUEST FOR A SIZE
DETERMINATION." THEREFORE, IT APPEARS THAT THE ISSUE WAS ALREADY DECIDED
BY SBA SINCE POSSIBLE AFFILIATION WITH NORTH STAR FUEL COMPANY WAS THE
BASIS FOR REQUESTING SBA'S SIZE DETERMINATION.
UNDER THE SMALL BUSINESS ACT OF 1958, 15 U.S.C. 632 AND 637(B)(6),
THE SMALL BUSINESS ADMINISTRATOR, ACTING THROUGH HIS AGENTS IN THE SMALL
BUSINESS ADMINISTRATION, IS EMPOWERED TO PRESCRIBE SMALL BUSINESS SIZE
STANDARDS FOR VARIOUS INDUSTRIES AND TO DETERMINE WITHIN ANY INDUSTRY
THE CONCERNS WHICH ARE TO BE DESIGNATED SMALL BUSINESS CONCERNS FOR THE
PURPOSE OF GOVERNMENT PROCUREMENT. THESE DETERMINATIONS ARE BINDING ON
THE PROCUREMENT OFFICIALS OF THE GOVERNMENT. IN VIEW OF THESE
PROVISIONS OF LAW, OUR OFFICE CANNOT ORDINARILY QUESTION SUCH
DETERMINATIONS.
YOUR CONTENTION THAT CMG EQUIPMENT SUPPLY DID NOT HOLD THE PROPER
PERMITS AND LICENSES TO SUBMIT A BID IS BASED ON SPECIAL PROVISION NO.
4, PART II, SECTION J, OF THE INVITATION AS FOLLOWS:
"4. PERMITS AND LICENSES
BIDDER CERTIFIES IN SUBMISSION OF BID HEREUNDER THAT HE (OR ANY
SUBCONTRACTOR HE MAY USE) HAS SUCH PERMITS AND LICENSES AS MAY BE
REQUIRED BY INTERSTATE REGULATORY AUTHORITIES TO PERFORM THE SERVICES
HEREIN INVOLVED. IN THE EVENT OPERATING RIGHTS ARE REVOKED OR WITHDRAWN
AT ANY TIME DURING THE LIFE OF THE CONTRACT, THIS CONTRACTOR WILL
IMMEDIATELY NOTIFY THE CONTRACTING OFFICER OF SUCH FACT IN WRITING."
THE CONTRACTING OFFICER STATES IN THIS REGARD THAT THE BID DOCUMENTS
REQUIRED BIDDERS TO HAVE ALL NECESSARY INTERSTATE LICENSES AND PERMITS
PRIOR TO BIDDING. HE STATES FURTHER THAT SINCE ALL OPERATIONS UNDER THE
SOLICITATION ARE TO BE INTRASTATE, THE ABOVE-QUOTED REQUIREMENT HAD NO
EFFECT ON BIDDERS. IT IS STATED THAT LOCAL LICENSE AND COMMON CARRIERS
PERMIT ARE REQUIRED BY THE STATE OF ALASKA BUT ARE NOT A CONTRACT
REQUIREMENT AS SUCH. FUEL DELIVERY ON THE BASE WILL NOT REQUIRE A
COMMON CARRIERS' PERMIT AND OFF-BASE DELIVERY MAY BE SUBCONTRACTED IF SO
DESIRED.
IT IS REPORTED THAT SUBSEQUENT TO THE CONTRACT AWARD TO CMG EQUIPMENT
SUPPLY ON APRIL 23, 1971, THE CONTRACTOR EXECUTED A SUBCONTRACT WITH
INLET FUEL COMPANY OF ANCHORAGE, A SMALL BUSINESS FIRM, FOR OFF-BASE
DELIVERY. CMG EQUIPMENT SUPPLY HAS ALSO APPLIED TO THE ALASKA
TRANSPORTATION COMMISSION FOR THEIR OWN PERMIT. IT IS STATED THAT ALL
DELIVERIES ARE BEING ACCOMPLISHED IN A SATISFACTORY MANNER.
FURTHERMORE, OUR OFFICE HAS CONSISTENTLY HELD THAT A LICENSE
REQUIREMENT IN AN INVITATION IS A REQUIREMENT CONCERNING THE
RESPONSIBILITY OF PROSPECTIVE CONTRACTORS - THAT IS, TO DETERMINE A
BIDDER'S LEGAL AUTHORIZATION TO PERFORM THE CONTRACT, WHICH IS A MATTER
OF RESPONSIBILITY AND IS NOT RELATED TO AN EVALUATION OF THE BID. 47
COMP. GEN. 539 (1968), 46 COMP. GEN. 326 (1966). IN THE LATTER CITED
CASE, WE STATED THAT THE CRITICAL TIME FOR ACTUAL COMPLIANCE WITH A
REQUIREMENT CONCERNING RESPONSIBILITY COULD BE AS LATE AS THE TIME FOR
PERFORMANCE PLUS ANY LEAD IN TIME WHICH MAY BE NECESSARY IN THE
PARTICULAR CASE. SEE ALSO B-161211, JULY 11, 1967. ADDITIONALLY, WE
NOTE THAT STATE LICENSING REQUIREMENTS WOULD NOT BE APPLICABLE TO THE
SERVICES TO BE PERFORMED ON ELMENDORF AIR FORCE BASE ITSELF OVER WHICH
THE FEDERAL GOVERNMENT HAS EXCLUSIVE JURISDICTION. B-159723, SEPTEMBER
28, 1966. SINCE THE CONTRACTOR HAS SUBCONTRACTED FOR THE OFF-BASE
DELIVERY OF FUEL, AND IS NOT RESTRICTED IN DELIVERIES ON THE BASE, WE
FIND NO REASON TO QUESTION THE AWARD TO CMG EQUIPMENT SUPPLY FOR FAILURE
TO HOLD LICENSES AND PERMITS AT THE TIME OF BID OPENING.
BASED UPON THE PRESENT RECORD, WE FIND NO REASON TO DISTURB THE AWARD
TO CMG EQUIPMENT SUPPLY COMPANY. ACCORDINGLY, YOUR PROTEST IS DENIED.
B-172860, JUL 28, 1971
CIVILIAN EMPLOYEE - COMPENSATION FOR TRAINING
DECISION DENYING CLAIM OF MR. PAUL R. WOOLEY FOR COMPENSATION FOR
"OFF-THE-CLOCK TRAINING" SAID TO HAVE BEEN PERFORMED IN 1966 AS A
SUBSTITUTE CLERK-CARRIER WITH THE POST OFFICE.
ALTHOUGH THE POSTMASTER AT OKMULGEE MAY HAVE EXPRESSED A PREFERENCE
FOR USING SUBSTITUTE CARRIERS WHO WERE "TRAINED," I.E., FAMILIAR WITH
GIVEN ROUTES, CLAIMANT MAY NOT BE COMPENSATED FOR TIME SPENT WALKING
ROUTES WITH REGULAR CARRIERS TO LEARN THOSE ROUTES AS SUCH WAS VOLUNTARY
ON HIS PART AND NOT MANDATORY.
TO MR. PAUL R. WOOLEY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 12, 1971,
EXPRESSING DISSATISFACTION WITH THE SETTLEMENT CERTIFICATE OF OUR CLAIMS
DIVISION DATED MARCH 29, 1971, WHICH DENIED YOUR CLAIM FOR COMPENSATION
FOR "OFF-THE-CLOCK TRAINING" YOU APPARENTLY PERFORMED DURING JULY
THROUGH OCTOBER 1966 AS A SUBSTITUTE CLERK-CARRIER AT THE UNITED STATES
POST OFFICE IN OKMULGEE, OKLAHOMA.
THE RELEVANT FACTS UNDERLYING YOUR CLAIM WERE STATED IN THE
AFOREMENTIONED SETTLEMENT CERTIFICATE AND WILL NOT BE REPEATED HERE.
THE DECISIVE FACTOR IN RECONSIDERING YOUR CLAIM IS THE FACTUAL QUESTION
OF WHETHER OR NOT OFF-THE-CLOCK TIME TO LEARN THE ROUTES OF REGULAR
CARRIERS WAS MANDATORY. THE RECORD INDICATES THAT YOUR POSITION HAS
BEEN THAT AS AN EMPLOYEE YOU WERE "ASSIGNED" TO SPECIFIC ROUTES WITH
SPECIFIC REGULAR LETTER CARRIERS IN ORDER TO "QUALIFY" FOR ASSIGNMENT TO
THOSE PARTICULAR ROUTES IN THE REGULAR CARRIER'S ABSENCE.
IN VIEW OF YOUR CONTENTIONS WE REQUESTED AND HAVE NOW RECEIVED AN
ADMINISTRATIVE REPORT ON YOUR CLAIM FROM THE UNITED STATES POSTAL
SERVICE. THAT REPORT STATES IN PART AS FOLLOWS:
"WE UNDERSTAND IT WAS CUSTOMARY PRIOR TO OCTOBER, 1968, FOR
POSTMASTERS AT A NUMBER OF POST OFFICES IN OUR WICHITA REGION, INCLUDING
THE POST OFFICE AT OKMULGEE, TO PERMIT NEW EMPLOYEES TO WORK IN THE POST
OFFICE, AND TO WALK CARRIER ROUTES, WITH REGULAR EMPLOYEES ON THEIR OWN
TIME TO INCREASE THEIR SKILLS OR TO ACQUIRE NEW ONES. HOWEVER, IT WAS
NOT MANDATORY AND NO ONE WAS EVER ORDERED TO WORK OR TRAIN
'OFF-THE-CLOCK.'
"WHEN MR. WOOLEY WAS HIRED AS A SUBSTITUTE IN JULY, 1966, HE ASKED TO
BE PERMITTED TO WORK WITH REGULAR EMPLOYEES ON HIS OWN TIME AND AT TASKS
NOT ASSIGNED HIM. THE POSTMASTER ADVISED US THAT HE MAY HAVE STATED
THAT AN EMPLOYEE WOULD NOT BE ASSIGNED TO A TASK 'GREEN', I.E., WITHOUT
HAVING RECEIVED PRIOR TRAINING FOR IT, IF IT COULD BE AVOIDED, BUT
DENIES WHAT ANYONE WAS EVER TOLD HE COULD NOT WORK UNTIL HE HAD TRAINED
'OFF-THE-CLOCK'. AS A MATTER OF FACT, MR. WOOLEY'S CLAIM IS FOR WORK
ALLEGEDLY PERFORMED AFTER THE DATE OF HIS EMPLOYMENT, JULY 16, 1966.
"MR. HARRY TAYLOR, THE ASSISTANT POSTMASTER AT OKMULGEE, WAS THE
SUPERINTENDENT OF MAILS IN 1966.
ASSIGNING TRAINEES TO WALK CARRIER ROUTES WITH REGULAR CARRIERS WAS
ONE OF THE DUTIES OF HIS POSITION. HE STATES POSITIVELY THAT HE NEVER
ASSIGNED AN EMPLOYEE TO TRAIN 'OFF-THE-CLOCK', AND THAT EMPLOYEES WHO
TRAINED ON THEIR OWN TIME DID SO VOLUNTARILY AND THEY THEMSELVES
SELECTED THE ROUTES ON WHICH THEY WISHED TO ACCOMPANY REGULAR EMPLOYEES.
SINCE OFF-THE-CLOCK TRAINING WAS INFORMAL AND ENTIRELY VOLUNTARY ON THE
PART OF THE EMPLOYEE AND UNSUPERVISED BY THE POST OFFICE, NO RECORDS
WERE MADE OR KEPT."
IT IS CLEAR FROM THE ABOVE THAT THE POSTAL SERVICE TAKES A POSITION
CONTRARY TO YOURS. WE ARE NOT EQUIPPED TO RESOLVE THE FACTUAL DISPUTE
EXISTING IN THE CIRCUMSTANCES. WE ARE THEREFORE REQUIRED TO BASE OUR
DETERMINATION ON THE FACTS AS REPORTED BY THE POSTAL SERVICE IN THE
ABSENCE OF CONCLUSIVE EVIDENCE TO REBUT THE CORRECTNESS OF THOSE FACTS.
THE MATTER OF COMPENSATION FOR OFF-DUTY TIME SPENT BY A SUBSTITUTE
LETTER CARRIER IN LEARNING THE ROUTES OF THE REGULAR CARRIER WAS BEFORE
THE COURT OF CLAIMS IN KINGSTON V UNITED STATES, 44 CT. CL. 44 (1908).
AFTER CONSIDERING THE APPLICABLE STATUTE AUTHORIZING COMPENSATION FOR
SUBSTITUTE LETTER CARRIERS, THE CASE HELD THAT A SUBSTITUTE CARRIER WAS
NOT IN A DUTY STATUS WHILE ASSISTING THE REGULAR CARRIER IN ROUTING AND
DELIVERING HIS MAIL BUT WAS MERELY BEING "INSTRUCTED BY SUCH REGULAR
CARRIER IN THE DUTIES ON THE ROUTE HE (THE SUBSTITUTE) WAS TO SERVE."
KINGSTON AT PAGE 47. THE OPINION PARTICULARLY NOTED THAT COMPENSATION
SHOULD NOT BE PAID TO THE SUBSTITUTE WHEN THE REGULAR CARRIER WAS IN A
DUTY STATUS FOR THE SAME ROUTE ON WHICH THE SUBSTITUTE WAS ACCOMPANYING
HIM.
TWO SUBSEQUENT CASES HAVE CONSIDERED THE RELATED QUESTION OF
ENTITLEMENT TO OVERTIME COMPENSATION FOR OFF-THE-CLOCK TIME SPENT BY
DISTRIBUTION CLERKS IN STUDY AND PRACTICE PREPARATION FOR EXAMINATIONS
WHICH THEY WERE REQUIRED TO PASS IN ORDER TO RETAIN THEIR JOBS WITH THE
POST OFFICE. IN THE MORE RECENT CASE THE COURT OBSERVED THAT CONGRESS
HAD RECOGNIZED THE SITUATION OF REQUIRED EXAMINATIONS FOR SOME 30 YEARS
AND HAD CONSISTENTLY REFUSED TO PROVIDE OVERTIME PAY, STRAIGHT PAY, OR
ON-THE-CLOCK STUDY PERIODS FOR THOSE EMPLOYEES CONCERNED. SEE DELAND V
UNITED STATES, 77 CT. CL. 55 (1933), AND ANDERSON V UNITED STATES, 138
CT. CL. 192, 150 F. SUPP. 881 (1957).
IT MAY BE CONCEDED THAT THE PRACTICE OF PERMITTING SUBSTITUTE
CARRIERS TO LEARN THE ROUTES OF REGULAR CARRIERS ON THEIR OWN TIME WAS
ENGAGED IN CONTRARY TO POST OFFICE POLICY. THIS IS SUBSTANTIATED BY
POST OFFICE REGIONAL (WICHITA) BULLETIN NO. 37 DATED OCTOBER 10, 1968,
WHICH ACKNOWLEDGED THAT SOME POST OFFICES WERE REQUIRING THEIR EMPLOYEES
TO PERFORM TRAINING OFF-THE-CLOCK. IT ALSO DIRECTED THAT EMPLOYEE
TRAINING ACTIVITIES, SUCH AS WALKING A CARRIER ROUTE, WERE TO BE PART OF
AN EMPLOYEE'S ON-THE-CLOCK ASSIGNMENT AND THAT HE COULD NOT BE REQUIRED
OR PERMITTED TO ENGAGE THEREIN WITHOUT COMPENSATION FOR SAME AS OFFICIAL
DUTY TIME. THOUGH THE POSTMASTER AT OKMULGEE MAY HAVE EXPRESSED HIS
PREFERENCE FOR CALLING "TRAINED" SUBSTITUTES TO CARRY ROUTES THEY HAD
PREVIOUSLY LEARNED, WE NONETHELESS CONCLUDE THAT THE MERE EXISTENCE OF
THAT PRACTICE IS NOT TANTAMOUNT TO AN EXPRESS OR IMPLIED DIRECTION BY
THE POSTMASTER TO PERFORM AN ASSIGNED DUTY FOR WHICH THE EMPLOYEE WOULD
BE ENTITLED TO COMPENSATION. AS INDICATED PREVIOUSLY, THE RESPONSIBLE
POST OFFICE OFFICIALS HAVE POSITIVELY DENIED THAT "OFF-THE-CLOCK"
ASSIGNMENTS TO LEARN REGULAR CARRIER ROUTES WERE DIRECTED OR ORDERED.
IN VIEW OF THE FOREGOING AND SINCE YOUR SUBJECT TRAINING TIME CANNOT
BE CHARACTERIZED AS MANDATORY, IT IS NOT COMPENSABLE AS REGULAR DUTY.
ACCORDINGLY, THE DECISION OF OUR CLAIMS DIVISION MUST BE AND IS
SUSTAINED.
B-166086, JUL 27, 1971
BID PROTEST - GAO REVIEW
DECISION CONCERNING THE PROTEST BY THE FIRE ALERT COMPANY UNDER AN
IFB ISSUED BY THE SUPPLY DIVISION, VA CENTER, CHEYENNE, WYOMING, FOR THE
FURNISHING AND INSTALLATION OF FIRE DETECTORS.
THE COMP. GEN. WISHES TO POINT OUT, WITH REGARD TO THE PROTEST
AGAINST THE REQUIREMENT THAT THE ITEMS CONFORM TO THE TWO-CHAMBER
DETECTION SYSTEM USED BY PYROTRONICS, INC., GAO DOES NOT HAVE A
SCIENTIFIC STAFF AND HAS NOT INDEPENDENTLY TESTED, EVALUATED OR APPROVED
FIRE DETECTORS, AND CONCLUSIONS SET FORTH IN GAO DECISIONS SHOULD NOT BE
USED AS A BASIS FOR DETERMINING THE MINIMUM NEEDS OF ACTIVITIES FOR FIRE
DETECTORS.
TO MR. JOHNSON:
REFERENCE IS MADE TO A REPORT, REFERENCE 134G, DATED JUNE 18, 1971,
FROM THE ACTING DIRECTOR, SUPPLY SERVICE, CONCERNING THE PROTEST OF THE
FIRE ALERT COMPANY OF DENVER, COLORADO, UNDER PROJECT NO. 71-104, ISSUED
BY THE CHIEF, SUPPLY DIVISION, VA CENTER, CHEYENNE, WYOMING, FOR THE
FURNISHING AND INSTALLATION OF FIRE DETECTORS.
FIRE ALERT PROTESTED THE INCLUSION OF A STATEMENT IN THE ORIGINAL IFB
THAT THE FIRE DETECTORS SHOULD BE EQUIVALENT TO THE DETECTOR
MANUFACTURED BY PYROTRONICS, INC., WHICH WAS ALLEGEDLY "APPROVED" IN OUR
DECISION B-166086, AUGUST 13, 1969. THE COMPANY ALSO PROTESTED THE IFB
REQUIREMENT THAT THE DETECTORS HAVE A TWO-CHAMBER DETECTION SYSTEM AND
STATED THAT ONLY PYROTRONICS, INC., COULD FURNISH A PRODUCT CONFORMING
TO SUCH A REQUIREMENT.
IN REPLY TO THE PROTEST, THE DIRECTOR STATES THAT THE PROCURING
ACTIVITY DELETED THE SOLICITATION PROVISION, WHICH CITED OUR DECISION,
AFTER DETERMINING THE INCLUSION OF SUCH REFERENCE WAS A MISTAKE.
IN VIEW OF SUCH ADVICE, FIRE ALERT'S PROTEST CONCERNING THE INCLUSION
OF THE PROVISION IS NOW CONSIDERED TO BE MOOT. HOWEVER, IN THE INTEREST
OF AVOIDING A REPETITION OF THIS CIRCUMSTANCE IN FUTURE PROCUREMENTS, WE
MUST EMPHASIZE THAT THIS OFFICE DOES NOT HAVE A SCIENTIFIC OR
ENGINEERING STAFF AND THAT WE HAVE NOT INDEPENDENTLY TESTED, EVALUATED
OR "APPROVED" FIRE DETECTORS. WHETHER THE PYROTRONICS' DETECTOR
ACTUALLY POSSESSES SUPERIOR OPERATING CHARACTERISTICS WAS NOT DECIDED BY
THIS OFFICE IN DETERMINING THE LEGAL PROPRIETY OF THE PROCUREMENT
ACTIONS TAKEN BY THE AIR FORCE IN DECISION B-166086, AUGUST 13, 1969,
AND ANY RELIANCE ON OUR CONCLUSIONS AS A BASIS FOR INDEPENDENTLY
DETERMINING THE ACTUAL MERITS OF THE FIRE DETECTORS WOULD NOT BE
WARRANTED.
ACCORDINGLY, WE RECOMMEND THAT YOU ADVISE ALL PROCURING ACTIVITIES,
WHICH MAY BE INVOLVED IN THE FUTURE PROCUREMENTS OF FIRE DETECTORS, THAT
THE CONCLUSIONS SET FORTH IN THE ABOVE DECISION SHOULD NOT BE USED AS A
BASIS FOR DETERMINING THE MINIMUM NEEDS OF THOSE ACTIVITIES FOR FIRE
DETECTORS.
CONCERNING FIRE ALERT'S PROTEST OF THE ALLEGED RESTRICTIVE NATURE OF
THE SPECIFICATION FOR A TWO-CHAMBER DETECTOR, WE CANNOT CONCLUDE FROM
OUR REVIEW OF THE RECORD THAT SUCH REQUIREMENT IS IN EXCESS OF THE
MINIMUM NEED OF THE CENTER OR THAT SUCH SPECIFICATION WAS UNDULY
RESTRICTIVE SINCE YOUR ADMINISTRATION STATES THAT AT LEAST TWO CONCERNS
MANUFACTURE SUCH A DETECTOR.
IN VIEW OF THE ABOVE, WE CANNOT CONCLUDE THAT FULL AND FAIR
COMPETITION FOR THE REQUIREMENT WAS VITIATED, AND WE THEREFORE INTERPOSE
NO OBJECTION TO THE PROPOSED BASIS FOR AWARDING A CONTRACT UNDER THE IFB
AS SET FORTH BY THE DIRECTOR IN HIS REPORT OF JUNE 18.
THE FILE FORWARDED WITH THAT REPORT IS RETURNED.
B-171105, B-171303, JUL 27, 1971
BID PROTEST - RECONSIDERATION - BID EVALUATION
RECONSIDERING EARLIER DECISION OF MAY 14, 1971 CONCERNING REQUESTS BY
GOULD, INC. AND ELTRA CORPORATION THAT GAO CONSIDER THE IMPACT ON COST
TO THE GOVERNMENT OF SHIPMENT OF CERTAIN ELECTROLYTE FROM ELTRA'S PLANT
IN CALIF. RATHER THAN FROM ITS INDIANA PLANT.
BECAUSE THE RECORD DID NOT SHOW THAT ELTRA HAD AN ESTABLISHED
PRACTICE OF SHIPPING ELECTROLYTE SEPARATELY FROM CALIFORNIA WHEN IT WAS
CHEAPER TO DO SO, THE COMP. GEN. DOES NOT BELIEVE THAT ELTRA'S BID
SHOULD HAVE BEEN EVALUATED ON THE BASIS OF SUCH SEPARATE SHIPMENTS, AND
THE EARLIER DECISION SHOULD NOT BE READ TO SO IMPLY.
TO MR. SECRETARY:
REFERENCE IS MADE TO LETTER OF MAY 27, 1971, ASKING THAT WE
RECONSIDER OUR DECISION OF MAY 14, 1971, IN THIS CASE.
OUR LETTER OF MAY 14, 1971, RESULTED FROM A REQUEST BY COUNSEL FOR
GOULD, INC., AND ELTRA CORPORATION THAT WE CONSIDER THE IMPACT ON COST
TO THE GOVERNMENT OF SHIPMENT OF CERTAIN ELECTROLYTE FROM ELTRA'S PLANT
IN CALIFORNIA, RATHER THAN FROM ITS INDIANA PLANT. AS WE STATED IN OUR
LETTER OF MAY 14, 1971, THE SAVING IN TRANSPORTATION COSTS BY SHIPMENT
OF THE ELECTROLYTE FROM CALIFORNIA RATHER THAN INDIANA WOULD MAKE SPLIT
AWARDS SOME $653 LESS COSTLY THAN THE SINGLE AWARD TO EXIDE.
THE SUGGESTION FOR SHIPMENT OF ELECTROLYTE FROM CALIFORNIA WAS NOT
PRESENTED TO US UNTIL AFTER OUR LAST PREVIOUS RULING IN THE CASE ON
MARCH 25, 1971. WE THEREFORE FELT COMPELLED TO HAVE THE RECORD SHOW
THAT THIS METHOD OF SHIPMENT, IF PROPER, WOULD MAKE SPLIT AWARDS LESS
EXPENSIVE TO THE GOVERNMENT.
THE INVITATION DOES NOT PRECLUDE SHIPMENT OF THE ELECTROLYTE FROM
CALIFORNIA. THE REAL QUESTION INVOLVED IS WHETHER OR NOT SHIPMENT FROM
CALIFORNIA WOULD HAVE BEEN AVAILABLE TO THE GOVERNMENT UNDER ELTRA'S
BID. ELTRA'S BID HAD LISTED ITS SANTA ROSA, CALIFORNIA PLANT AS A
SHIPPING POINT WITH THE QUALIFYING LANGUAGE "(WET AND CHARGED ONLY)."
THIS LANGUAGE CAN BE CONSTRUED TO MEAN EITHER (1) THAT NOTHING EXCEPT
WET CHARGED BATTERIES COULD BE SHIPPED FROM THAT PLANT, OR (2) THAT SO
FAR AS BATTERIES WERE CONCERNED, THE CALIFORNIA PLANT COULD NOT SHIP DRY
CHARGED BATTERIES. OUR LETTER OF MAY 14, 1971, STATED OUR OPINION THAT
THE LANGUAGE "WET AND CHARGED ONLY" WAS USED BY ELTRA IN CONNECTION WITH
BATTERIES, AND WAS NOT INTENDED TO HAVE ANY APPLICABILITY TO THE ISSUE
OF THE SHIPPING POINT FOR SEPARATELY PACKED ELECTROLYTE.
WHETHER ELTRA, WHEN IT BID, HAD IN MIND THE POSSIBILITY OF SHIPPING
THE SEPARATELY PACKED ELECTROLYTE FROM CALIFORNIA RATHER THAN FROM
INDIANA, THE SOURCE OF THE RELATED DRY CHARGED BATTERIES, WE DO NOT
KNOW, AND WE DID NOT EXPRESS AN OPINION ON THIS. ELTRA HAD ALLEGED TO
US THAT THIS WAS ITS COMMERCIAL PRACTICE. UPON OUR SUBSEQUENT REQUEST
FOR SOME INSTANCES IN WHICH THIS HAD BEEN DONE, ELTRA FURNISHED US ONLY
ONE EXAMPLE. NAVY FURNISHED US ONE INSTANCE IN A RECENT NAVY
PROCUREMENT OF SIMILAR BATTERIES WHERE ELTRA DID NOT MAKE SEPARATE
SHIPMENT OF ELECTROLYTE FROM ITS CALIFORNIA PLANT FOR DRY CHARGED
BATTERIES PRODUCED ELSEWHERE, EVEN THOUGH IT WOULD HAVE BEEN CHEAPER FOR
ELTRA TO HAVE DONE SO. NAVY ALSO FURNISHED US SOME 16 OTHER INSTANCES
IN COMPETITIVE PROCUREMENTS WHERE ELTRA DID NOT OFFER TO SHIP
ELECTROLYTE SEPARATELY FROM CALIFORNIA EVEN THOUGH IT WOULD HAVE BEEN TO
ITS ADVANTAGE TO DO SO.
ON BALANCE, WE DO NOT BELIEVE THE RECORD FURNISHED US SHOWS THAT
ELTRA HAD ANY ESTABLISHED PRACTICE OF SHIPPING ELECTROLYTE SEPARATELY
FROM CALIFORNIA WHEN IT WAS CHEAPER TO DO SO.
TO THE EXTENT THAT OUR EARLIER DECISION OF MAY 14, 1971, MAY HAVE
INDICATED THAT ELTRA'S BID SHOULD HAVE BEEN EVALUATED ON THE BASIS OF
SEPARATE SHIPMENT OF ELECTROLYTE FROM ITS CALIFORNIA PLANT, IT IS
WITHDRAWN. WE BELIEVE THIS IS A QUESTION FOR THE COURT TO DECIDE ON
REMAND.
B-171741, JUL 27, 1971
BID PROTEST - AMENDMENT OF SOLICITATION - ACKNOWLEDGEMENT
DECISION DENYING PROTEST ON BEHALF H. J. OSTERFELD COMPANY AGAINST
THE AWARD OF A CONTRACT TO TIMMONS, BUTT & HEAD (TBH) UNDER AN IFB
ISSUED BY THE AIR FORCE SYSTEMS COMMAND, AERONAUTICAL SYSTEMS DIVISION.
PROTESTANT CONTENDS THAT TBH SHOULD HAVE BEEN DISQUALIFIED FOR FAILURE
TO ACKNOWLEDGE RECEIPT OF AMENDMENT 3 TO THE IFB. TBH CONTENDS THAT THE
AMENDMENT MATERIAL WAS INCLUDED IN THEIR BID.
THE COMP. GEN. HAS PREVIOUSLY HELD THAT FAILURE OF A BIDDER TO
ACKNOWLEDGE AN AMENDMENT DOES NOT REQUIRE THAT THE BID BE REJECTED IF IT
CAN BE SHOWN THAT THE BIDDER WILL BE BOUND BY ALL THE TERMS AND
CONDITIONS OF THE SOLICITATION. FROM THE RECORD IN THIS CASE, THE COMP.
GEN. BELIEVES THAT TBH WILL BE BOUND BY THE TERMS INCLUDED IN THE
AMENDMENT AS WELL AS THE ORIGINAL SOLICITATION.
TO MR. HOWARD N. THIELE, JR.:
REFERENCE IS MADE TO A COPY OF YOUR LETTER OF MAY 1, 1971, TO THE
CHIEF, CONTRACT MANAGEMENT DIVISION, DIRECTORATE OF PROCUREMENT POLICY,
DEPUTY CHIEF OF STAFF, SYSTEMS AND LOGISTICS, DEPARTMENT OF THE AIR
FORCE, AND TO PRIOR CORRESPONDENCE TO CONGRESSMAN CHARLES W. WHALEN,
JR., FROM THE H. J. OSTERFELD COMPANY PROTESTING AGAINST THE AWARD OF A
CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO.
F33615-71-B-0013, ISSUED BY THE AIR FORCE SYSTEMS COMMAND, AERONAUTICAL
SYSTEMS DIVISION, WRIGHT-PATTERSON AIR FORCE BASE, OHIO.
THE INVITATION SOLICITED BIDS FOR ALTERATION OF THE ENVIRONMENTAL
CONTROL SYSTEMS IN BUILDING NO. 620, AREA "B", AT WRIGHT-PATTERSON AIR
FORCE BASE. BIDS WERE RECEIVED FROM SIX BIDDERS. TIMMONS, BUTT & HEAD,
INC. (TBH), A JOINT VENTURE, SUBMITTED THE LOW BID. HOWEVER, THE TBH
BID DID NOT ACKNOWLEDGE RECEIPT OF AMENDMENT 3 TO THE INVITATION. THE
H. J. OSTERFELD COMPANY PROTESTED TO THE CONTRACTING OFFICER ANY AWARD
TO TBH. THE PROTEST WAS DENIED BY THE CONTRACTING OFFICER ON THE BASIS
THAT THE TBH LOW BID WAS RESPONSIVE TO THE INVITATION. ON JANUARY 5,
1971, A CONTRACT IN THE AMOUNT OF $1,467,900 WAS AWARDED TO TBH.
THE INVITATION WAS ISSUED ON STANDARD FORM 33 WHICH IN PERTINENT PART
PROVIDED:
"SOLICITATION
" *** ALL OFFERS ARE SUBJECT TO THE FOLLOWING:
1. THE ATTACHED SOLICITATION INSTRUCTIONS AND CONDITIONS, SF 33A.
2. THE GENERAL PROVISIONS WHICH ARE ATTACHED OR INCORPORATED HEREIN
BY REFERENCE.
3. THE SCHEDULE INCLUDED BELOW AND/OR ATTACHED HERETO.
4. SUCH OTHER PROVISIONS, REPRESENTATIONS, CERTIFICATIONS, AND
SPECIFICATIONS AS ARE ATTACHED OR INCORPORATED HEREIN BY REFERENCE.
(ATTACHMENTS ARE LISTED IN THE SCHEDULE.) ***
"TABLE OF CONTENTS
"THE FOLLOWING CHECKED SECTIONS ARE CONTAINED IN THE CONTRACT
*** PART IV - LIST OF DOCUMENTS AND ATTACHMENTS
(X) SEC PAGE
X M LIST OF DOCUMENTS AND ATTACHMENTS. 28
"OFFER ***
"IN COMPLIANCE WITH THE ABOVE, THE UNDERSIGNED OFFERS AND AGREES, IF
THIS OFFER IS ACCEPTED WITHIN *** 60 CALENDAR DAYS *** TO FURNISH ANY OR
ALL ITEMS UPON WHICH PRICES ARE OFFERED, AT THE PRICE SET FORTH,
DELIVERED AT THE DESIGNATED POINTS, WITHIN THE TIME SPECIFIED IN THE
SCHEDULE."
ON PAGE 28, SECTION "M," AS REFERRED TO ABOVE, APPEARED THE
FOLLOWING:
"ATTACHMENT
1 TECHNICAL PROVISIONS, WP 545-9, DATED JULY 1970,
CONSISTING OF SPECIAL INSTRUCTIONS ON PAGES SI-1
THRU SI-6 AND TECHNICAL PROVISIONS, DIVISIONS 1,
2, 3, 5, 6, 7, 8, 9, 10, 13, 15, AND 16 (AS SET
FORTH IN THE INDEX PAGES A, B, AND C); AND ADDENDUM
NO. 1, DATED 7 OCTOBER 1970, CONSISTING OF PAGES A-1 AND
A-2."
ON PAGE (B) OF THE TECHNICAL PROVISIONS WP 545-9 INDEX THERE APPEARED
THE FOLLOWING:
"DIVISION SECTION & TITLE PAGES
* * * * *
8 ***
8C HARDWARE, BUILDERS' 8C-1 TO 8C-6"
THESE PAGES ARE OUTLINED FURTHER ON PAGE (J) OF THE TECHNICAL
PROVISIONS AS FOLLOWS:
"PARAGRAPH NO. PARAGRAPH TITLE PAGE NO.
* * * * *
SECTION 8C - HARDWARE; BUILDERS'
5 SAMPLE REQUIREMENTS AND HARDWARE
SCHEDULE 8C-2
6 PACKING, MARKING, AND LABELING 8C-2
7 FINISHES OF HARDWARE 8C-3
8 FASTENINGS 8C-3
9 LOCKSETS, LOCK TRIM AND DOOR TRIM 8C-3"
FOLLOWING AN INQUIRY FROM A NONBIDDER, THE CONTRACTING OFFICER
EXAMINED COPIES OF THE TECHNICAL PROVISIONS AT THE PROCURING ACTIVITY
AND FOUND THAT PAGES 8C-2 AND 8C-3 WERE MISSING FROM SOME SOLICITATIONS.
THEREFORE, THE CONTRACTING OFFICER ISSUED AMENDMENT 3 AS FOLLOWS:
"SOME COPIES OF THE TECHNICAL PROVISIONS, DATED JULY 1970, WERE FOUND
TO BE LACKING PAGES 8C-2 AND 8C-3 OF SECTION 8C. TO ASSURE EACH
PROSPECTIVE BIDDER HAS A COMPLETE SET, THE MISSING PAGES ARE PROVIDED
HEREWITH."
IN CONFIRMING ITS BID TO THE CONTRACTING OFFICER, TBH ADMITTED IT
NEVER RECEIVED A COPY OF AMENDMENT 3, BUT STATED THAT PAGES 8C-2 AND
8C-3 WERE CONTAINED IN THE BID SET USED BY TBH IN ITS BID AND THAT ITS
BID INCLUDED ALL THE WORK SPECIFIED IN SECTION 8C, PAGES 8C-1 THROUGH
8C-6.
THE QUESTION OF THE RESPONSIVENESS OF A BID SUBMITTED WITHOUT
ACKNOWLEDGING ONE OR MORE AMENDMENTS TO THE ORIGINAL INVITATION HAS BEEN
BEFORE OUR OFFICE ON NUMEROUS OCCASIONS. OUR CONSIDERATION OF THIS
QUESTION HAS RESULTED IN A GENERAL RULE THAT WHERE SUCH AN AMENDMENT
COULD AFFECT PRICE, QUANTITY OR QUALITY, THE FAILURE OF THE BIDDER TO
ACKNOWLEDGE RECEIPT OF THE AMENDMENT PRIOR TO THE TIME SET FOR THE
OPENING OF BIDS IS MATERIAL AND RENDERS THE BID NONRESPONSIVE. 37 COMP.
GEN. 785 (1958). HOWEVER, AS ALSO NOTED ON SEVERAL OCCASIONS, FAILURE OF
A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT HAS BEEN HELD NOT TO
REQUIRE THE REJECTION OF THE BID IF IT CAN BE SHOWN THAT THE BIDDER,
UPON ACCEPTANCE OF THE BID, COULD BE REQUIRED TO PERFORM AT THE BID
PRICE IN ACCORDANCE WITH ALL THE TERMS AND CONDITIONS OF THE INVITATION,
AS AMENDED. SEE 48 COMP. GEN. 555, 558, 559 (1969).
THE QUESTION THEN ARISES WHETHER THERE IS EVIDENCE IN THE TBH BID
THAT BINDS TBH TO THE CONTENTS OF PAGES 8C-2 AND 8C-3. ASIDE FROM TBH'S
ASSERTION THAT THE IFB IT RECEIVED CONTAINED PAGES 8C-2 AND 8C-3, WE
BELIEVE THAT TBH WAS BOUND TO THE PROVISIONS OF THE INVITATION AS LISTED
IN ATTACHMENT 1 WHICH, AS SHOWN ABOVE, DEFINITELY INCORPORATED THE
TECHNICAL PROVISIONS INCLUDING, AMONG OTHER REQUIREMENTS, THE LISTED
PAGES 8C-1 TO 8C-6. THESE PAGES BECAME A PART OF THE TBH BID BY VIRTUE
OF THE LANGUAGE IN THE OFFER STATING IT WAS "IN COMPLIANCE WITH THE
ABOVE," THAT IS, ATTACHMENT 1.
WE HAVE HELD THAT SUCH PHRASE, "IN COMPLIANCE WITH THE ABOVE," REFERS
TO THAT PORTION OF THE SOLICITATION QUOTED ABOVE WHICH PROVIDES THAT ALL
OFFERS SHALL BE SUBJECT TO THE SOLICITATION INSTRUCTIONS AND CONDITIONS,
THE GENERAL PROVISIONS, THE SCHEDULE, AND SUCH OTHER PROVISIONS,
REPRESENTATIONS, CERTIFICATIONS AND SPECIFICATIONS AS ARE INCORPORATED
BY REFERENCE OR LISTED IN THE SCHEDULE AS ATTACHMENTS. SEE 49 COMP.
GEN. 289, 291 (1969). IN THAT DECISION, WE HELD THAT SINCE THAT
SOLICITATION PORTION OF THE SCHEDULE WAS SUBMITTED WITH THE LOW BID AND
SINCE SUCH PORTION IDENTIFIED IN DETAIL ALL THE VARIOUS CONDITIONS,
PROVISIONS, SCHEDULES, CERTIFICATES AND OTHER DOCUMENTS COMPRISING THE
TERMS OF THE CONTRACT TO BE AWARDED, SUCH REFERENCES IN THE BID
SUBMITTED BY THE LOW BIDDER CLEARLY OPERATED TO INCORPORATE ALL OF THE
SOLICITATION DOCUMENTS INTO THE BID, AND THAT AN AWARD TO THE LOW BIDDER
BOUND HIM TO PERFORMANCE IN FULL ACCORD WITH THE CONDITIONS SET OUT IN
THE REFERENCED DOCUMENTS. IN ACCORD WITH THE FOREGOING REASONING, WE
FIND NO REASON TO DISAGREE WITH THE ACTION OF THE CONTRACTING OFFICER IN
WAIVING THE FAILURE OF TBH TO ACKNOWLEDGE AMENDMENT NO. 3.
YOUR CONTENTION THAT A VIOLATION OF FEDERAL ANTITRUST LAWS MAY HAVE
OCCURRED IN THE PROCUREMENT IS FOR THE CONSIDERATION OF THE DEPARTMENT
OF JUSTICE AND NOT BY OUR OFFICE. 21 COMP. GEN. 56 (1941); 50 COMP.
GEN. ___ (B-171669(1), MARCH 24, 1971); AND 10 U.S.C. 2305(D).
IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.
B-172303, JUL 27, 1971
MILITARY PERSONNEL - RETIRED PAY - DATE OF RETIREMENT
DECISION NOT AUTHORIZING A VOUCHER IN FAVOR OF MASTER SERGEANT JESSE
C. BLACKBURN, RETIRED, FOR $64.04, REPRESENTING THE DIFFERENCE IN
RETIRED PAY FOR THE PERIOD OCT. 1, 1968 THROUGH JANUARY 31, 1971.
NOTWITHSTANDING CLAIMANT'S ADDITIONAL ACTIVE DUTY TOURS FROM NOV 1,
1962, THROUGH AUG 31, 1964 AND OCT 1, 1966, THROUGH SEPT 30, 1968, SINCE
SGT. BLACKBURN INITIALLY RETIRED ON MARCH 31, 1961, HIS RETIRED STATUS
DOES NOT BRING HIM WITHIN THE SCOPE OF 10 USC 1401A(E) FOR PURPOSES OF
RECOMPUTING HIS RETIRED PAY. SUCH PROVISION APPLIES ONLY TO MEMBERS
RETIRING ON OR AFTER OCT 1, 1967 THE VOUCHER MAY NOT BE CERTIFIED FOR
PAYMENT.
TO MR. N. R. BRENINGSTALL:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 2, 1971 (FILE
REFERENCE RPTI), WITH ENCLOSURE, REQUESTING AN ADVANCE DECISION AS TO
THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $64.04 IN
FAVOR OF MASTER SERGEANT JESSE C. BLACKBURN, RETIRED, REPRESENTING THE
DIFFERENCE IN RETIRED PAY FOR THE PERIOD OCTOBER 1, 1968, THROUGH
JANUARY 31, 1971, UNDER THE CIRCUMSTANCES DISCLOSED.
YOU SAY THAT SERGEANT BLACKBURN WAS RETIRED ON MARCH 31, 1961, IN THE
GRADE OF TECHNICAL SERGEANT (E-6) UNDER 10 U.S.C. 8914 UPON COMPLETING
20 YEARS, 1 MONTH AND 23 DAYS' SERVICE (ALL ACTIVE DUTY). IT IS STATED
THAT FOLLOWING RETIREMENT HE HAD ADDITIONAL ACTIVE DUTY TOURS FROM
NOVEMBER 1, 1962, THROUGH AUGUST 31, 1964, AND OCTOBER 1, 1966, THROUGH
SEPTEMBER 30, 1968, DURING WHICH HE WAS PROMOTED TO MASTER SERGEANT
(E-7). YOU STATE THAT THIS GAVE HIM A TOTAL CREDIT FOR RETIRED PAY
PURPOSES OF 23 YEARS, 11 MONTHS AND 23 DAYS COMMENCING OCTOBER 1, 1968.
YOU FURTHER STATE THAT HIS RETIRED PAY WAS RECOMPUTED AS AN E-7
STARTING OCTOBER 1, 1968, UNDER 10 U.S.C. 1402(A) BY APPLYING THE SECOND
SENTENCE OF FOOTNOTE 1 OF THAT SECTION USING THE OCTOBER 1, 1967, BASIC
PAY RATES PRESCRIBED IN THE ACT OF DECEMBER 16, 1967, PUBLIC LAW 90-207,
81 STAT. 649, INCREASED BY 1.3 PERCENT, REPRESENTING THE CONSUMER PRICE
INDEX INCREASE UNDER 10 U.S.C. 1401A(D).
YOU EXPRESS THE VIEW THAT THE ABOVE METHOD OF COMPUTATION APPEARS TO
CONFORM WITH THE METHOD AUTHORIZED IN OUR DECISION OF SEPTEMBER 30,
1970, B-170104, 50 COMP. GEN. ___, IN RESPONSE TO QUESTION "B". THE
MEMBER'S RETIRED PAY WAS FURTHER INCREASED UNDER 10 U.S.C. 1401A(B) BY 4
PERCENT ON FEBRUARY 1, 1969, 5.3 PERCENT ON NOVEMBER 1, 1969, AND 5.6
PERCENT ON AUGUST 1, 1970.
YOU QUESTION WHETHER THE RETIRED PAY HE RECEIVED, COMPUTED AS
INDICATED ABOVE AND SET OUT IN YOUR SUBMISSION, IS CORRECT IN VIEW OF
THE PROVISIONS OF 10 U.S.C. 1401A(E).
YOU SEEM TO EQUATE SERGEANT BLACKBURN'S RETIRED PAY SITUATION WITH
MEMBERS WHO RETIRED ON AND AFTER OCTOBER 1, 1967, AND WHO ARE OTHERWISE
ENTITLED TO HAVE THEIR RETIRED PAY ADJUSTED AS PROVIDED IN 10 U.S.C.
1401A(E). YOU SAY THAT ALTHOUGH SERGEANT BLACKBURN FIRST RETIRED ON
MARCH 31, 1961, HE WAS IN EFFECT "RE-RETIRED" ON SEPTEMBER 30, 1968,
WITH ENTITLEMENT TO RETIRED PAY RECOMPUTED FROM THE OCTOBER 1, 1967,
BASIC PAY RATES.
YOU FURTHER STATE THAT SINCE ANYONE WHO ON A FIRST RETIREMENT, WHERE
THE OCTOBER 1, 1967, RATES WERE APPLICABLE, WOULD BE ENTITLED UNDER 10
U.S.C. 1401A(E) TO AN EQUATED PAY WITH SOMEONE WHO WAS EARLIER RETIRED
(PRIOR TO OCTOBER 1, 1967), UNDER COMPARABLE CONDITIONS, IT WOULD APPEAR
THAT THE SAME "SAVINGS" PROVISION IN SECTION 1401A(E) WOULD APPLY ON A
RE-RETIREMENT. IT IS YOUR BELIEF THAT THE INTENT OF SECTION 2 OF PUBLIC
LAW 90-207 WAS THAT PERSONS WHOSE RETIRED PAY IS RECOMPUTED FROM A NEW
BASE FOLLOWING ADDITIONAL ACTIVE DUTY SHOULD RECEIVE THE EQUIVALENT
RETIRED PAY OF PERSONS WHOSE PAY IS COMPUTED FROM THE SAME BASE BUT DID
NOT HAVE ADDITIONAL ACTIVE DUTY.
IN THE EVENT SERGEANT BLACKBURN COMES WITHIN THE SCOPE OF 10 U.S.C.
1401A(E), YOU SAY THAT HIS RETIRED PAY WOULD BE RECOMPUTED AT THE RATES
OF BASIC PAY IN EFFECT ON JULY 1, 1966, PLUS SUBSEQUENT CPI INCREASES,
AND HE WOULD BE ENTITLED TO AN INCREASE IN RETIRED PAY IN THE AMOUNT OF
$64.04 COVERING THE PERIOD OCTOBER 1, 1968, TO JANUARY 31, 1971, AS
SHOWN IN THE COMPUTATION IN YOUR SUBMISSION.
SUBSECTION (E) OF SECTION 1401A, TITLE 10, U.S. CODE AS ADDED BY
SECTION 2 OF THE ACT OF DECEMBER 16, 1967, PUBLIC LAW 90-207, 81 STAT.
652, WHICH BECAME EFFECTIVE OCTOBER 1, 1967, PROVIDES AS FOLLOWS:
"(E) NOTWITHSTANDING SUBSECTIONS (C) AND (D), THE ADJUSTED RETIRED
PAY OR RETAINER PAY OF A MEMBER OR FORMER MEMBER OF AN ARMED FORCE
RETIRED ON OR AFTER OCTOBER 1, 1967, MAY NOT BE LESS THAN IT WOULD HAVE
BEEN HAD HE BECOME ENTITLED TO RETIRED PAY OR RETAINER PAY BASED ON THE
SAME PAY GRADE, YEARS OF SERVICE FOR PAY, YEARS OF SERVICE FOR RETIRED
OR RETAINER PAY PURPOSES AND PERCENT OF DISABILITY, IF ANY, ON THE DAY
BEFORE THE EFFECTIVE DATE OF THE RATES OF MONTHLY BASIC PAY ON WHICH HIS
RETIRED PAY OR RETAINER PAY IS BASED."
THE PURPOSE OF ADDING SUBSECTION (E) OF SECTION 1401A IS EXPLAINED IN
THE LEGISLATIVE HISTORY OF SECTION 2 OF PUBLIC LAW 90-207 ON PAGE 19 OF
SENATE REPORT NO. 808 (TO ACCOMPANY H.R. 13510 WHICH BECAME PUBLIC LAW
90-207):
"CLAUSE 1: NEW SUBSECTION (E) IS A TECHNICAL AMENDMENT RECOMMENDED
BY THE DEPARTMENT OF DEFENSE WITH RESPECT TO INCREASES FOR RETIRED
PERSONNEL BASED ON ADVANCES IN THE CONSUMER PRICE INDEX. DESPITE THE
PROVISIONS IN THE HOUSE VERSION MODIFYING THE CONSUMER PRICE INDEX
FORMULA, THERE REMAINED A POSSIBLE INEQUITY RESULTING FROM A COMBINATION
OF THE UPWARD MOVEMENT OF THE CONSUMER PRICE INDEX'S TOGETHER WITH THE
TRANSITIONAL PROVISIONS CONTAINED ELSEWHERE IN THE BILL. WITHOUT THE
FURTHER AMENDMENT, THERE WOULD HAVE BEEN SITUATIONS WHERE PERSONS
RETIRING AFTER THE EFFECTIVE DATE OF THIS LEGISLATION IN THE SAME GRADE
AND BASIC PAY WOULD RECEIVE LESS THAN CERTAIN INDIVIDUALS IN THE SAME
CIRCUMSTANCES RETIRING PRIOR TO THE EFFECTIVE DATE OF THIS LEGISLATION.
THE AMENDMENT ADOPTED IN COMMITTEE WILL INSURE THAT THOSE RETIRING AFTER
THE EFFECTIVE DATE OF THIS BILL AND BEFORE THE NEXT PAY INCREASE WILL
RECEIVE AS MUCH IN RETIRED PAY AS COMPARABLE MEMBERS RETIRING BEFORE THE
EFFECTIVE DATE OF THE BILL."
CONCERNING THE APPLICATION OF SUBSECTION (E) OF SECTION 1401A, IN OUR
DECISION OF OCTOBER 17, 1968, B-164762, 48 COMP. GEN. 204, CITED IN YOUR
SUBMISSION, WE CONSIDERED THE CASE OF AN ENLISTED MAN WHO INITIALLY
RETIRED ON JULY 1, 1962, AND THEREAFTER SERVED ON ACTIVE DUTY FROM MAY
26, 1966, TO MARCH 14, 1968. IN THAT DECISION WE SAID AT PAGE 208:
"INASMUCH AS SERGEANT BURRELL RETIRED EFFECTIVE JULY 1, 1962, HIS
RETIRED PAY STATUS DOES NOT COME WITHIN THE PURVIEW OF SUBSECTION (E) OF
SECTION 1401A, TITLE 10, U.S. CODE, AS AMENDED, WHICH IS APPLICABLE ONLY
WHEN RETIREMENT BECOMES EFFECTIVE ON OR AFTER OCTOBER 1, 1967. HENCE,
THE COMPUTATION OF HIS RETIRED PAY EFFECTIVE FROM APRIL 1, 1968, IS
GOVERNED BY THE PROVISIONS OF SUBSECTION (C) OF SECTION 1401A, AS SHOWN
ABOVE ($301.59 PER MONTH)."
IN ANOTHER CASE INVOLVING AN ENLISTED MAN WHO WAS INITIALLY RETIRED
ON DECEMBER 1, 1965, AND THEREAFTER SERVED ON ACTIVE DUTY FROM AUGUST 1,
1966, TO JULY 31, 1968, WE SAID IN OUR DECISION OF JUNE 4, 1969,
B-166335, CONCERNING THE APPLICATION OF SUBSECTION (E) OF SECTION 1401A
THAT:
"BY ITS OWN TERMS, SUBSECTION (E) OF SECTION 1401A IS APPLICABLE ONLY
WHEN RETIREMENT BECOMES EFFECTIVE ON OR AFTER OCTOBER 1, 1967. SEE
B-164762, OCTOBER 17, 1968. SINCE SERGEANT HOUSTON INITIALLY RETIRED
DECEMBER 1, 1965, HIS RETIRED STATUS DOES NOT COME WITHIN THE PURVIEW OF
SUBSECTION (E)."
IN THE LIGHT OF THE ABOVE, SINCE SERGEANT BLACKBURN INITIALLY RETIRED
ON MARCH 31, 1961 - NOT ON OR AFTER OCTOBER 1, 1967 - HIS RETIRED STATUS
DOES NOT BRING HIM WITHIN THE SCOPE OF 10 U.S.C. 1401A(E) FOR PURPOSES
OF RECOMPUTING HIS RETIRED PAY UNDER THAT PROVISION OF LAW.
ACCORDINGLY, PAYMENT IS NOT AUTHORIZED AND THE VOUCHER WILL BE
RETAINED HERE.
B-172513, JUL 27, 1971
FEDERAL CREDIT UNIONS - GSA COMPETITION WITH PRIVATE CONCERNS FOR
INSTALLATION OF BURGLAR ALARM SYSTEM
DECISION DENYING PROTEST OF SECURITY, INC. AGAINST GSA COMPETING WITH
INSTALLERS OF BURGLAR ALARM SYSTEMS FOR THE INSTALLATION OF SUCH DEVICES
IN FEDERAL CREDIT UNIONS IN FEDERAL BUILDINGS BASED ON LETTER DATED
APRIL 28, 1971, FROM THE ADMINISTRATOR OF THE GENERAL SERVICES
ADMINISTRATION TO THE NATIONAL BURGLAR AND FIRE ALARM ASSOCIATION, INC.
TO SECURITY, INC.:
REFERENCE IS MADE TO YOUR LETTERS OF APRIL 1 AND 21, 1971, PROTESTING
THAT THE GENERAL SERVICES ADMINISTRATION (GSA) IS COMPETING WITH
INSTALLERS FOR BURGLAR ALARM SYSTEMS FOR THE INSTALLATION OF ALARM
SYSTEMS IN FEDERAL CREDIT UNIONS IN FEDERAL BUILDINGS.
THE MATTER TO WHICH YOU SPECIFICALLY REFER RELATING TO AN ALARM
SYSTEM AT THE FEDERAL CREDIT UNION LOCATED IN THE INTERNAL REVENUE
BUILDING, WASHINGTON, D.C., WAS THE SUBJECT OF A LETTER DATED APRIL 28,
1971, FROM THE ADMINISTRATOR OF THE GENERAL SERVICES ADMINISTRATION, TO
THE NATIONAL BURGLAR AND FIRE ALARM ASSOCIATION, INC. A COPY OF THAT
LETTER, WITH WHICH WE CONCUR, IS ENCLOSED FOR YOUR INFORMATION.
IN VIEW OF THE EXPLANATION FURNISHED AND THE BASES FOR THE ACTION
TAKEN, YOUR PROTEST IS DENIED.
B-172573, JUL 27, 1971
BID PROTEST - BID RESPONSIVENESS
CONCERNING THE DECISION IN THE PROTEST OF YARBROUGH MOVING & STORAGE,
INC. AGAINST CANCELLATION OF ITS CONTRACT FOR MOVEMENT OF HOUSEHOLD
GOODS AWARDED BY BLYTHEVILLE A.F. BASE, ARKANSAS. ADVISING THAT AS IFB
DID NOT CALL FOR A GUARANTEE TO MATCH A MAXIMUM GOVERNMENT DAILY
REQUIREMENT OF GROSS HUNDREDWEIGHT, THE BIDDER WAS NOT REQUIRED TO
INCLUDE SUCH IN THEIR BID AND THE BID WAS THEREFORE RESPONSIVE.
ADVISING FURTHER THAT IN THE FUTURE, SOLICITATIONS OF THIS TYPE SHOULD
COMPLY WITH ASPR 7-1601.7 BY STATING A MINIMUM ACCEPTABLE CAPACITY OF
GROSS HUNDREDWEIGHT.
TO MR. SECRETARY:
WE REFER TO THE LETTER SPPM DATED MAY 19, 1971, FROM THE CONTRACT
MANAGEMENT DIVISION, DIRECTORATE OF PROCUREMENT POLICY, HEADQUARTERS
UNITED STATES AIR FORCE, FORWARDING A REPORT ON THE PROTEST OF YARBROUGH
MOVING & STORAGE, INC., AGAINST THE PROPOSED CANCELLATION OF CONTRACT
NO. F03601-71-C-0105, AWARDED TO THAT COMPANY ON DECEMBER 2, 1970, BY
THE BLYTHEVILLE AIR FORCE BASE, ARKANSAS.
THE SUBJECT PROTEST CONCERNS A CONTRACT INVOLVING THE TRANSPORTATION
OF HOUSEHOLD GOODS AWARDED FOR SCHEDULE III OF THE SOLICITATION. BIDS
ON THIS SCHEDULE WERE AS FOLLOWS:
YARBROUGH MOVING & STORAGE, INC. $19,839.60
BRANSCUM MOVING & STORAGE $20,574.40
BLYTHEVILLE TRANSFER & STORAGE COMPANY $20,941.80
FISHER'S MOVING & STORAGE CO. $23,513.60
GUARDIAN VAN LINES, INC. $29,392.00
CONSEQUENTLY, AWARD WAS MADE TO YARBROUGH AS LOW BIDDER. THE
CONTRACT COVERS THE PERIOD OF JANUARY 1, 1971, TO DECEMBER 31, 1971.
THEREAFTER, THE SECOND, THIRD, AND FOURTH LOW BIDDERS PROTESTED THE
AWARD TO YARBROUGH ON THE BASIS THAT ITS BID WAS NONRESPONSIVE UNDER THE
SOLICITATION PROVISION WHICH HAD INCORPORATED, IN PART, PARAGRAPH
7-1601.7 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) INTO THE
SOLICITATION. IN PERTINENT PART, THIS PROVISION READS:
"(B) THE GOVERNMENT'S ESTIMATED MAXIMUM DAILY REQUIREMENTS, EXCLUDING
SATURDAY; SUNDAY; NATIONAL, STATE AND LOCAL HOLIDAYS, ARE LISTED BELOW
BY AREA OF PERFORMANCE WITHIN EACH SCHEDULE. BIDDERS MUST COMPLETE THE
BIDDERS GUARANTEED DAILY CAPABILITY, WHICH MUST EQUAL OR EXCEED THE
GOVERNMENT'S MINIMUM ACCEPTABLE DAILY CAPABILITY FOR ALL ITEMS WITHIN
THE AREA OF PERFORMANCE FOR WHICH THEY SUBMIT BIDS. FAILURE TO DO SO
WILL RENDER THE BID NONRESPONSIVE."
THE CONTRACTING OFFICER HAD LISTED THE GOVERNMENT'S ESTIMATED MAXIMUM
DAILY CAPABILITY IN THE SOLICITATION, BUT HAD FAILED TO INDICATE THE
GOVERNMENT'S MINIMUM DAILY CAPABILITY. THE LOW BIDDER'S GUARANTEED
DAILY CAPABILITY WAS 5,000 POUNDS (50 GCWT) IN COMPARISON TO THE
GOVERNMENT'S ESTIMATED MAXIMUM DAILY CAPABILITY OF 13,000 POUNDS (130
GCWT).
THE PROTESTS MAINTAINED THAT THE FAILURE OF THE YARBROUGH BID TO
STATE A GUARANTEED DAILY CAPABILITY EQUAL TO THE GOVERNMENT'S STATED
MAXIMUM DAILY CAPABILITY RENDERED IT NONRESPONSIVE. ON THE BASIS OF A
LETTER DATED JANUARY 27, 1971, FROM THE ASSISTANT STAFF JUDGE ADVOCATE,
BLYTHEVILLE AIR FORCE BASE, ARKANSAS, CONCLUDING THAT THE FAILURE ON THE
PART OF THE GOVERNMENT TO SET OUT THE REQUIRED DAILY MINIMUM QUANTITIES
IN THE SOLICITATION RENDERED IT INVALID, THE CONTRACT MANAGEMENT
DIVISION, DIRECTORATE OF PROCUREMENT POLICY, HEADQUARTERS UNITED STATES
AIR FORCE, DIRECTED THAT WITH RESPECT TO SCHEDULE III, THE SOLICITATION
SHOULD BE CANCELED AND REISSUED. ALTHOUGH THE REPORT TO OUR OFFICE IN
THIS MATTER INDICATES THAT THE CONTRACT AWARDED YARBROUGH FOR SCHEDULE
III WAS, IN FACT, CANCELED IN ACCORDANCE WITH THIS DIRECTIVE, WE HAVE
BEEN INFORMALLY ADVISED BY THE CONTRACTING OFFICER THAT PERFORMANCE
UNDER THE CONTRACT HAS BEEN CONTINUED PENDING OUR DECISION.
UNLESS SOMETHING ON THE FACE OF THE BID, OR SPECIFICALLY A PART
THEREOF, EITHER LIMITS, REDUCES, OR MODIFIES THE OBLIGATION OF THE
BIDDER TO PERFORM IN ACCORDANCE WITH THE TERMS OF THE INVITATION, THE
BID IS RESPONSIVE. 48 COMP. GEN. 685, 687 (1969); 49 ID. 553, 556
(1970). IN THIS INSTANCE, THE LOW BIDDER WAS NOT OBLIGATED BY THE TERMS
OF THE SOLICITATION TO SUBMIT A GUARANTEED DAILY CAPABILITY FIGURE WHICH
EQUALED OR EXCEEDED THE GOVERNMENT'S ESTIMATED MAXIMUM DAILY REQUIREMENT
OF 130 GROSS HUNDREDWEIGHT. HENCE, ITS BID WAS NOT NONRESPONSIVE
BECAUSE IT INSERTED A GUARANTEED DAILY CAPACITY OF 50 GROSS
HUNDREDWEIGHT. WHILE ASPR 7-1601.7 CONTEMPLATES THAT SOLICITATIONS FOR
THIS TYPE OF CONTRACT CONTAIN A STATEMENT OF THE MINIMUM ACCEPTABLE
DAILY CAPABILITY WHICH MUST BE MET BY BIDDERS, THE CONTRACTING OFFICER
MADE AN AWARD UNDER THE SOLICITATION PRESUMABLY ON THE BASIS THAT HE WAS
SATISFIED THAT THE DAILY CAPABILITIES OFFERED BY BIDDERS WOULD MEET THE
GOVERNMENT'S ACTUAL REQUIREMENTS.
THEREFORE, WE CONCLUDE THAT THE AWARD TO YARBROUGH OF SCHEDULE III
CONSUMMATED A PROPER AWARD WHICH NEED NOT BE DISTURBED. IN THE FUTURE,
CONTRACTS OF THIS NATURE SHOULD INDICATE FULL COMPLIANCE WITH THE
PROVISIONS OF ASPR 7-1601.7 SO THAT THE GOVERNMENT MAY BE ASSURED THAT
BIDS SUBMITTED WILL ACTUALLY SATISFY ITS MINIMUM NEEDS.
B-172848, JUL 27, 1971
TRAVEL ALLOWANCE - PERMISSIVE ASSIGNMENT
REAFFIRMING DISALLOWANCE BY CLAIMS DIVISION OF CLAIM BY JAMES D.
HARMON, JR., FOR TRAVEL FOR HIMSELF AND DEPENDENTS, REIMBURSEMENT OF
EXPENSES INCURRED IN SHIPPING HOUSEHOLD GOODS, AND A DISLOCATION
ALLOWANCE IN CONNECTION WITH A TRANSFER FROM FORT MCPHERSON, GEORGIA, TO
CARLISLE BARRACKS, PENNSYLVANIA PURSUANT TO MEMBER'S REQUEST. SINCE THE
TRAVEL WAS PERFORMED FOR THE CONVENIENCE OF THE MEMBER, RATHER THAN ON
PUBLIC BUSINESS, THERE IS NO AUTHORITY FOR THE PAYMENT OF SUCH TRAVEL
EXPENSES. FURTHER, A DISLOCATION ALLOWANCE MAY NOT BE PAID SINCE THE
ORDERS DID NOT AUTHORIZE THE MOVEMENT OF DEPENDENTS.
TO CAPTAIN JAMES D. HARMON, JR., U.S. ARMY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 24, 1971, IN
EFFECT REQUESTING RECONSIDERATION OF THE SETTLEMENT BY OUR CLAIMS
DIVISION, DATED AUGUST 21, 1970, WHICH DISALLOWED YOUR CLAIM FOR
MONETARY ALLOWANCE FOR YOUR TRAVEL AND THAT OF YOUR DEPENDENTS,
REIMBURSEMENT OF EXPENSES INCURRED IN THE SHIPMENT OF YOUR HOUSEHOLD
EFFECTS AND A DISLOCATION ALLOWANCE IN CONNECTION WITH YOUR TRANSFER
FROM FORT MCPHERSON, GEORGIA, TO CARLISLE BARRACKS, PENNSYLVANIA, IN
AUGUST 1969.
BY PARAGRAPH 121, SPECIAL ORDER NO. 152, HEADQUARTERS, DEPARTMENT OF
THE ARMY, DATED AUGUST 5, 1968, YOU WERE REASSIGNED ON PERMANENT CHANGE
OF STATION FROM FORT ORD, CALIFORNIA, TO HEADQUARTERS, 3D UNITED STATES
ARMY, FORT MCPHERSON, GEORGIA. SPECIAL INSTRUCTIONS PROVIDED THAT UNDER
THE PROVISIONS OF ARMY REGULATION 601-114, YOU WERE DETAILED TO THE
JUDGE ADVOCATE GENERAL'S CORPS AT THAT HEADQUARTERS EFFECTIVE AUGUST 26,
1968. THEY PROVIDED FURTHER THAT EXCEPT WHEN YOU WERE PERFORMING DUTY
PURSUANT TO PARAGRAPH 6A OF THE REGULATION CITED, YOU WERE GRANTED
EXCESS LEAVE WITHOUT PAY AND ALLOWANCES FOR A PERIOD OF APPROXIMATELY
3-1/2 YEARS FOR THE PURPOSE OF OBTAINING A DEGREE IN LAW AT EMORY
UNIVERSITY LAW SCHOOL, ATLANTA, GEORGIA, AND ADMISSION TO THE BAR.
THE ORDERS AUTHORIZED TRANSPORTATION OF DEPENDENTS AND SHIPMENT OF
HOUSEHOLD GOODS TO THE ASSIGNED STATION AT GOVERNMENT EXPENSE BUT
PROVIDED THAT ALL TRAVEL, SCHOOL EXPENSE AND SHIPMENT OF HOUSEHOLD GOODS
RELATED TO THAT COURSE WOULD BE AT NO EXPENSE TO THE GOVERNMENT. THE
ORDERS DIRECTED FURTHER THAT WHEN THE SCHOOL WAS NOT IN SESSION, YOU
WERE TO REPORT TO YOUR ASSIGNED DUTY STATION FOR DUTY WITH FULL PAY AND
ALLOWANCES IN CONNECTION WITH JUDGE ADVOCATE GENERAL ACTIVITIES.
ON JULY 24, 1969, YOUR ORDERS DATED AUGUST 5, 1968, WERE AMENDED BY
THE DEPARTMENT OF THE ARMY, TO CHANGE YOUR ASSIGNMENT TO OFFICER STUDENT
DETACHMENT, HEADQUARTERS, FIRST UNITED STATES ARMY, FORT GEORGE G.
MEADE, MARYLAND, WITH STATION AT HEADQUARTERS, UNITED STATES ARMY
GARRISON, CARLISLE BARRACKS, PENNSYLVANIA. THE LAW SCHOOL YOU WERE TO
ATTEND WAS CHANGED FROM EMORY LAW SCHOOL, ATLANTA, TO DICKINSON SCHOOL
OF LAW, CARLISLE, PENNSYLVANIA. THE EFFECTIVE DATE OF STRENGTH
ACCOUNTABILITY WAS SHOWN TO BE AUGUST 24, 1969, AND SPECIAL INSTRUCTIONS
STATED THAT THE MOVEMENT TO THE NEW ON-THE-JOB TRAINING SITE AND LAW
SCHOOL WAS TO BE AT NO EXPENSE TO THE GOVERNMENT.
YOUR CLAIM DATED SEPTEMBER 2, 1969, FOR MONETARY ALLOWANCE FOR YOUR
TRAVEL AND THAT OF YOUR DEPENDENTS, REIMBURSEMENT OF EXPENSES INCURRED
IN THE SHIPMENT OF YOUR HOUSEHOLD GOODS AND A DISLOCATION ALLOWANCE
INCIDENT TO YOUR TRANSFER TO CARLISLE BARRACKS, PENNSYLVANIA, IN AUGUST
1969 WAS ADMINISTRATIVELY DENIED.
ON APRIL 23, 1970, YOU SUBMITTED A CLAIM TO OUR CLAIMS DIVISION FOR
THE ITEMS PREVIOUSLY CLAIMED.
YOU SAID THAT AFTER YOU HAD COMPLETED ONE YEAR OF STUDY AT EMORY LAW
SCHOOL YOU REQUESTED THE ARMY TO REASSIGN YOU TO CARLISLE BARRACKS
BECAUSE YOU WANTED TO TRANSFER TO DICKINSON LAW SCHOOL FOR FINANCIAL
REASONS. THIS RESULTED IN THE ORDERS DATED JULY 24, 1969. YOU SAID
THAT ON AUGUST 24, 1969, WHEN YOU MOVED YOUR HOUSEHOLD YOU TRANSFERRED
FROM A DUTY STATUS AT FORT MCPHERSON TO A SIMILAR STATUS AT CARLISLE
BARRACKS AND YOU DID NOT SIGN OUT FOR EXCESS LEAVE UNTIL SEPTEMBER 3,
1969. IT WAS YOUR CONTENTION THAT THE PERMANENT CHANGE-OF-STATION MOVE
WAS NOT CONSIDERED PERMISSIVE IN NATURE BY THE ARMY, SINCE THE ORDERS
DID NOT DESIGNATE THE MOVE AS PERMISSIVE.
BY SETTLEMENT DATED AUGUST 21, 1970, YOUR CLAIM WAS DISALLOWED BY OUR
CLAIMS DIVISION FOR THE REASONS THEREIN STATED. IN YOUR LETTER DATED
FEBRUARY 24, 1971, YOU ADMIT THAT YOUR REQUEST FOR TRANSFER TO CARLISLE
BARRACKS WAS A REQUEST FOR A PERMISSIVE REASSIGNMENT. HOWEVER, YOU
CONTEND THAT YOU ARE ENTITLED TO PAYMENT BECAUSE THERE IS NO AUTHORITY
UNDER PERTINENT STATUTES AND REGULATIONS FOR THE ISSUANCE OF PERMISSIVE
PERMANENT CHANGE-OF-STATION REASSIGNMENT ORDERS TO AN ARMY OFFICER.
SECTIONS 404 AND 406 OF TITLE 37, UNITED STATES CODE, PROVIDE IN
PERTINENT PART THAT IN CONNECTION WITH A CHANGE IN PERMANENT STATION, A
MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION
ALLOWANCES AND TO TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD EFFECTS
AT GOVERNMENT EXPENSE UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES
CONCERNED. SECTION 407 OF THAT TITLE PROVIDES FOR PAYMENT OF A
DISLOCATION ALLOWANCE TO A MEMBER, UNDER REGULATIONS PRESCRIBED BY THE
SECRETARIES CONCERNED, WHEN HIS DEPENDENTS MAKE AN AUTHORIZED MOVE IN
CONNECTION WITH HIS CHANGE OF PERMANENT STATION.
REGULATIONS PRESCRIBED PURSUANT TO THE STATUTORY PROVISIONS CITED ARE
CONTAINED IN THE JOINT TRAVEL REGULATION. PARAGRAPH M3050-1 THEREOF
PROVIDES IN PERTINENT PART THAT MEMBERS ARE ENTITLED TO TRAVEL AND
TRANSPORTATION ALLOWANCES AS AUTHORIZED IN ACCORDANCE WITH EXISTING
REGULATIONS ONLY WHILE ACTUALLY IN A "TRAVEL STATUS". IT PROVIDES
FURTHER THAT SUCH MEMBERS SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE
PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC
BUSINESS, PURSUANT TO COMPETENT ORDERS.
PARAGRAPH M6453 OF THE REGULATIONS PROVIDES THAT AN ORDER PERMITTING
A MEMBER TO TRAVEL, AS DISTINGUISHED FROM DIRECTING A MEMBER TO TRAVEL,
DOES NOT ENTITLE HIM TO EXPENSES OF TRAVEL. PARAGRAPH M6454 PROVIDES
THAT EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS WHICH DO
NOT INVOLVE PUBLIC BUSINESS ARE NOT PAYABLE BY THE GOVERNMENT.
REGULATIONS PERTAINING TO THE JUDGE ADVOCATE GENERAL'S EXCESS LEAVE
PROGRAM DURING THE PERIOD UNDER CONSIDERATION ARE CONTAINED IN ARMY
REGULATION 601-114, DATED FEBRUARY 16, 1966. THE STATED PURPOSE OF THAT
REGULATION IS TO PERMIT A LIMITED NUMBER OF COMMISSIONED OFFICERS OF THE
REGULAR ARMY AND DISTINGUISHED MILITARY GRADUATES OF THE ROTC TO ENTER
ON EXCESS LEAVE WITHOUT PAY AND ALLOWANCES FOR A PERIOD OF APPROXIMATELY
3-1/2 YEARS, FOR THE PURPOSE OF OBTAINING LEGAL EDUCATION WITH A VIEW TO
APPOINTMENT IN THE JUDGE ADVOCATE GENERAL'S CORPS (JAGC), REGULAR ARMY,
UPON ATTAINMENT OF A LAW DEGREE AND ADMISSION TO THE BAR. DURING THE
PERIOD OF LEGAL EDUCATION, THE OFFICERS ARE TO BE DETAILED TO THE JAGC.
THE REGULATION PROVIDES FURTHER THAT REGULAR ARMY COMMISSIONED
OFFICERS DESIRING CONSIDERATION UNDER THAT PROGRAM, WILL INITIATE A
REQUEST FOR EXCESS LEAVE, WITH DETAIL TO JAGC. ASSIGNMENT WILL BE AS
DIRECTED BY HEADQUARTERS, DEPARTMENT OF THE ARMY. THE PERSONNEL WILL
PERFORM ON-THE-JOB TRAINING WITH JAGC ACTIVITIES WHEN SCHOOL IS NOT IN
SESSION AND THEY WILL BE ASSIGNED TO THE STUDENT DETACHMENT OF A MAJOR
COMMAND HEADQUARTERS WITH STATION AT AN ARMY INSTALLATION WITHIN THAT
COMMAND THAT IS AS NEAR AS POSSIBLE TO THE LAW SCHOOL OF ATTENDANCE.
ALL ASSIGNMENT ORDERS WILL STATE SPECIFICALLY THE PURPOSE OF THE
ASSIGNMENT. ALSO, UPON NOTIFICATION THAT THE APPLICANT HAS BEEN
TENTATIVELY SELECTED FOR APPOINTMENT IN THE JAGC AND HAS BEEN GRANTED
EXCESS LEAVE TO ATTEND LAW SCHOOL, THE MAJOR COMMANDER HAVING
JURISDICTION OVER THE APPLICANT WILL ISSUE ASSIGNMENT ORDERS AS DIRECTED
BY HEADQUARTERS, DEPARTMENT OF THE ARMY.
IT LONG HAS BEEN THE ESTABLISHED RULE THAT MEMBERS OF THE UNIFORMED
SERVICES ARE ENTITLED TO TRAVEL EXPENSES FOR TRAVEL PERFORMED UNDER
ORDERS, IF SUCH TRAVEL IS ON PUBLIC BUSINESS. THE CHARACTER OF THE
SERVICE PERFORMED IS TO BE DETERMINED FROM THE FACTS IN EACH CASE AND IF
FROM THE FACTS OF RECORD IT APPEARS THAT THE TRAVEL WAS PERFORMED FOR
THE CONVENIENCE OF THE MEMBER, RATHER THAN ON PUBLIC BUSINESS, THERE IS
NO AUTHORITY FOR THE PAYMENT OF SUCH TRAVEL EXPENSES, SINCE PUBLIC
BUSINESS IS THE FOUNDATION ON WHICH THE RIGHT TO TRAVEL ALLOWANCES
RESTS. SEE 9 COMP. GEN. 414; 42 ID. 27; PERRIMOND V UNITED STATES,
19 CT. CL. 509; AND DAY V UNITED STATES, 123 CT. CL. 10, 18.
THE GRANTING OF YOUR REQUEST FOR PERMISSION TO CHANGE YOUR STATION
ASSIGNMENT FOR THE PURPOSE OF CHANGING TO ANOTHER LAW SCHOOL UNDER THE
EXCESS LEAVE PROGRAM WAS AT THE DISCRETION OF HEADQUARTERS, DEPARTMENT
OF THE ARMY, AND WAS FOR YOUR CONVENIENCE AND NOT BECAUSE OF THE NEEDS
OF THE ARMY. THE FACT THAT SUCH TRANSFER WAS GRANTED WHILE YOU WERE
PERFORMING ON-THE-JOB TRAINING AT FORT MCPHERSON, YOUR ASSIGNED STATION
WHEN THE LAW SCHOOL WAS NOT IN SESSION, OR THAT THE TRANSFER EFFECTED A
CHANGE IN YOUR ASSIGNED STATION, DOES NOT CHANGE THE CHARACTER OF THE
REASSIGNMENT WHICH WAS MADE FOR YOUR CONVENIENCE BECAUSE OF YOUR REQUEST
AND NOT FOR THE CONVENIENCE OF THE GOVERNMENT. SEE 43 COMP. GEN. 584,
COPY ENCLOSED.
THEREFORE, SINCE THE TRAVEL PERFORMED WAS NOT ON PUBLIC BUSINESS,
REIMBURSEMENT OF THE TRAVEL AND TRANSPORTATION EXPENSES YOU INCURRED
INCIDENT TO SUCH REASSIGNMENT MAY NOT BE MADE AT GOVERNMENT EXPENSE.
FURTHERMORE, A DISLOCATION ALLOWANCE IS NOT PAYABLE SINCE NO MOVE OF
YOUR DEPENDENTS AT GOVERNMENT EXPENSE WAS AUTHORIZED IN CONNECTION WITH
THE REASSIGNMENT.
ACCORDINGLY, THE DISALLOWANCE DATED AUGUST 21, 1970, WAS CORRECT AND
IS SUSTAINED.
B-172888(1), JUL 27, 1971
BID PROTEST - SMALL BUSINESS SET-ASIDE
DECISION DENYING REQUEST BY SERVRITE INTERNATIONAL, LTD. THAT AN RFP
ISSUED BY DEPT. OF AIR FORCE FOR DAIRY PRODUCTS DELIVERABLE IN TURKEY
AND GREECE BE SET-ASIDE FOR SMALL BUSINESS CONCERNS.
AS NO NEW EVIDENCE HAS BEEN PRODUCED BY SERVRITE TO WARRANT REVERSAL
OF DECISION, DATED JULY 15, 1971, DENYING SAME REQUEST MADE BY STERILE
FOOD PRODUCTS, INC., THIS REQUEST MUST ALSO BE DENIED.
TO SERVRITE INTERNATIONAL, LTD.:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 8, 1971, SUPPORTING
THE PROTEST OF STERILE FOOD PRODUCTS, INC. (STERILE), WHEREIN THAT
COMPANY HAD REQUESTED CONSIDERATION BE GIVEN TO SETTING ASIDE REQUEST
FOR PROPOSALS NO. F61355-71-R-0073 FOR SMALL BUSINESS CONCERNS.
AS YOU REQUESTED, ENCLOSED IS A COPY OF OUR DECISION OF JULY 15,
1971, TO STERILE WHICH CONCLUDES THAT WE ARE NOT IN A POSITION TO ACCEDE
TO ITS REQUEST, OR TO SUGGEST THAT SUCH ACTION BE CONSIDERED BY THE
DEPARTMENT OF THE AIR FORCE. SINCE WE FIND NOTHING IN YOUR
CORRESPONDENCE WITH THE CONTRACTING OFFICER TO SUGGEST THAT ANY
DIFFERENT CONCLUSION SHOULD HAVE BEEN REACHED BY OUR OFFICE OR BY THE
PROCURING ACTIVITY, WE BELIEVE YOU WILL FIND THE ENCLOSURE RESPONSIVE TO
YOUR REQUEST, AND NO FURTHER ACTION THEREON IS CONTEMPLATED BY THIS
OFFICE.
B-172888(2), JUL 27, 1971
TO MR. SECRETARY:
REFERENCE IS MADE TO OUR LETTER DATED JULY 16, 1971, REQUESTING A
REPORT CONCERNING THE PROTEST OF SERVRITE INTERNATIONAL, LTD.
(SERVRITE), UNDER REQUEST FOR PROPOSALS NO. F61355-71-R-0073.
IN ACCORDANCE WITH INFORMAL ADVICE GIVEN ON JULY 19, 1971, TO MR. C.
R. HANSEN, CONTRACT SPECIALIST, DIRECTORATE OF PROCUREMENT POLICY,
DEPUTY CHIEF OF STAFF, SYSTEMS AND LOGISTICS, A REPORT WILL NOT BE
REQUIRED IN THIS MATTER IN VIEW OF THE SIMILARITY OF SERVRITE'S REQUEST
TO THAT OF STERILE FOOD PRODUCTS, INC., WHICH WAS THE SUBJECT OF OUR
DECISION DATED JULY 15, 1971, A COPY OF WHICH WAS FURNISHED TO YOU BY
LETTER OF THE SAME DATE.
ENCLOSED IS A COPY OF OUR LETTER OF TODAY TO SERVRITE ADVISING OF OUR
JULY 15 DECISION, AND THAT WE FIND NO VALID REASON TO CHANGE OUR
CONCLUSIONS STATED THEREIN.
B-172964, JUL 27, 1971
CIVILIAN EMPLOYEE - LIABILITY FOR OVERPAYMENT OF OVERTIME
DECISION WAIVING CLAIM OF GOVERNMENT UNDER PROVISIONS OF 5 USC 5584
AGAINST KEITH B. JOHNSON, AN EMPLOYEE OF THE SEC, FOR $517.68, INCIDENT
TO OVERPAYMENTS OF OVERTIME COMPENSATION, BASED ON EMPLOYEE'S LACK OF
FAULT AND AWARENESS IN THE MATTER.
TO MR. CASEY:
IN A RECENT SITE AUDIT OF THE SECURITIES AND EXCHANGE COMMISSION
(SEC) OUR AUDIT DIVISION QUESTIONED SALARY PAYMENTS MADE TO MR. KEITH B.
JOHNSON AT HIS BASIC HOURLY RATE FOR WORK IN EXCESS OF 8 HOURS IN A DAY.
MR. JOHNSON WAS APPOINTED BY SEC AS AN ECONOMIST, UNGRADED, FOR
INTERMITTENT SERVICE AT THE PER ANNUM RATE OF $20,439 UNDER THE
AUTHORITY CONTAINED IN THE ACT OF JULY 29, 1968, 82 STAT. 453. HE WAS
PAID FOR WORK IN EXCESS OF 8 HOURS IN A DAY AT THE BASIC RATE FOR HIS
POSITION, ALTHOUGH THIS RATE EXCEEDED THE OVERTIME HOURLY RATE FOR THE
MINIMUM RATE FOR GRADE GS-10 AUTHORIZED BY 5 U.S.C. 5542. IN INFORMAL
INQUIRY NUMBER 1C004, WE QUESTIONED SALARY PAYMENTS TO MR. JOHNSON
TOTALING $517.68 REPRESENTING THE DIFFERENCE BETWEEN HIS BASIC HOURLY
RATE AND THE GRADE GS-10 OVERTIME RATE FOR PAYMENTS FOR 164-1/2 HOURS
WORKED IN EXCESS OF 8 HOURS IN A DAY DURING THE PERIODS JANUARY 29
THROUGH JUNE 15, 1969, AND SEPTEMBER 20 THROUGH DECEMBER 31, 1970, WHILE
EMPLOYED AS AN INTERMITTENT EMPLOYEE.
ON MARCH 10, 1971, MR. FRANK J. DONATY, THE SEC COMPTROLLER, REPLIED
TO OUR INFORMAL INQUIRY BUT WE DO NOT CONCUR WITH THE EXPLANATION
FURNISHED TO THE EFFECT THAT GRANTING OF OVERTIME PAY IN EXCESS OF THE
MINIMUM RATE FOR GRADE GS-10 WAS PROPER. PUBLIC LAW 90-438, 82 STAT.
453, 15 U.S.C. 78S, AMENDING SECTION 19 OF THE SECURITY EXCHANGE ACT OF
1934, PROVIDES IN PART IN SUBSECTION (2) AS FOLLOWS:
" *** THE COMMISSION IS AUTHORIZED TO APPOINT, WITHOUT REGARD TO THE
PROVISIONS OF TITLE 5, UNITED STATES CODE, GOVERNING APPOINTMENTS IN THE
COMPETITIVE SERVICE, AND TO PAY, WITHOUT REGARD TO THE PROVISIONS OF
CHAPTER 51 AND SUBCHAPTER III OF CHAPTER 53 OF SUCH TITLE RELATING TO
CLASSIFICATION AND GENERAL SCHEDULE PAY RATES, SUCH PERSONNEL AS THE
COMMISSION DEEMS ADVISABLE TO CARRY OUT THE STUDY AND INVESTIGATION
AUTHORIZED BY THIS SUBSECTION, BUT NO SUCH RATE SHALL EXCEED THE PER
ANNUM RATE IN EFFECT FOR A GS-18."
OUR VIEW IS THAT THE EMPLOYEES APPOINTED UNDER THE PROVISIONS OF
PUBLIC LAW 90-438 WERE SUBJECT TO THE PREMIUM PAY PROVISIONS OF 5 U.S.C.
5541-5549. ALSO, WE NOTE THAT THE REGULATIONS OF YOUR AGENCY PROVIDED
THAT OVERTIME PAYMENT POLICIES APPLICABLE TO REGULAR EMPLOYEES OF SEC
WOULD BE APPLICABLE TO EMPLOYEES OF THE "SPECIAL STUDY STAFF" SUCH AS
MR. JOHNSON.
THUS, IT CLEARLY APPEARS THAT THE PAYMENTS MADE TO MR. JOHNSON IN
EXCESS OF 8 HOURS PER DAY AT RATES IN EXCESS OF THE RATE FOR THE MINIMUM
GRADE OF GS-10 WERE ERRONEOUS. HOWEVER, SINCE MR. JOHNSON DOES NOT
APPEAR TO HAVE BEEN IN ANY WAY AT FAULT IN THE MATTER OR OTHERWISE AWARE
THAT HE WAS RECEIVING EXCESS COMPENSATION PAYMENTS, THE COLLECTION OF
THE AMOUNT OF SUCH ERRONEOUS PAYMENTS IS HEREBY WAIVED UNDER THE
PROVISIONS OF 5 U.S.C. 5584. IN VIEW THEREOF, THE INFORMAL INQUIRY IS
BEING WITHDRAWN.
ANY SIMILAR ERRONEOUS PAYMENTS TO OTHER SPECIAL STUDY EMPLOYEES WOULD
LIKEWISE BE FOR CONSIDERATION FOR WAIVER. IN THAT CONNECTION SEE 4 CFR
91.1 ET SEQ.
B-173088, JUL 27, 1971
BID PROTEST - EVALUATED BID LOWER THAN ESTIMATED COST OF PERFORMANCE
DECISION DENYING PROTEST AGAINST ACCEPTANCE OF A LOW BID BY U.S.
BUILDING MAINTENANCE UNDER AN IFB ISSUED BY THE NAVAL FACILITIES
ENGINEERING COMMAND, PHIL., PA., FOR MAINTENANCE SERVICE AT THE NAVAL
AMMUNITION DEPOT, CRANE, INDIANA.
WHILE THE LOW BID AND EVALUATED AMOUNT ARE BELOW THE MINIMUM
ESTIMATED COST OF PERFORMANCE, THE FIXED AND ESTIMATED COSTS OF
PERFORMANCE, EXCLUSIVE OF OVERHEAD AMOUNT TO LESS THAN THE EVALUATED BID
PRICE OF U.S. BUILDING MAINTENANCE. FURTHER, THE FACT THAT THE LOW
BIDDER MIGHT INCUR A LOSS IN PERFORMING THE CONTRACT DOES NOT JUSTIFY
REJECTING AN OTHERWISE ACCEPTABLE BID.
TO KENTUCKY BUILDING MAINTENANCE, INC.:
REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 27, 1971, AND SUBSEQUENT
CORRESPONDENCE CONCERNING YOUR PROTEST UNDER INVITATION FOR BIDS (IFB)
N62472-71-B-6308, WHICH WAS ISSUED ON APRIL 20, 1971, BY THE EAST
CENTRAL DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, PHILADELPHIA,
PENNSYLVANIA, FOR MAINTENANCE SERVICES AT THE NAVAL AMMUNITION DEPOT,
CRANE, INDIANA.
AFTER BIDS WERE OPENED ON MAY 20, 1971, THE LOWEST BIDDER, DYNAMIC
INTERNATIONAL, INC., ASSERTED A MISTAKE IN BID AND WAS PERMITTED TO
WITHDRAW ITS OFFER. THE NEXT LOWEST BID WAS SUBMITTED BY U.S. BUILDING
MAINTENANCE IN THE AMOUNT OF $248,907.50, WITH A 4 PERCENT, 20 DAYS,
PROMPT PAYMENT DISCOUNT, FOR AN EVALUATED BID PRICE OF $238,951.20. IN
THIS CONNECTION THE NAVY HAS ADVISED THAT BUILDING MAINTENANCE HAS
CONFIRMED ITS BID PRICE.
YOU STATE THAT THE LOW BID IS BELOW THE MINIMUM NEEDED TO PAY THE
DEPARTMENT OF LABOR SPECIFIED WAGES, PLUS REQUIRED PAYROLL TAXES,
SUPPLIES, EQUIPMENT, AND PERFORMANCE BOND, ALL OF WHICH ARE REQUIRED
UNDER THE CONTRACT.
THE PROCURING ACTIVITY ESTIMATES THE COST OF PERFORMANCE AT
$258,008.96, AS FOLLOWS:
LABOR $2.66 X 2080 = $5,532.80 X 34 $188,115.20
SUPERVISION $150.00 PER WK. $150 X 104 15,600.00
EXTRA HOURS 300 @ $2.66 798.00
VACATION $106.00 X 34 3,617.60
SOCIAL SECURITY @ 5.2% 10,822.80
SUPPLIES AND EQUIPMENT 15,600.00
OVERHEAD, INSURANCE, BONDS 23,455.36
TOTAL $258,008.96
WHILE IT IS THEREFORE APPARENT THAT THE LOW BID OF $248,907.50, AND
THE EVALUATED AMOUNT OF $238,951.20 IS BELOW THE MINIMUM ESTIMATED COST
FOR PERFORMANCE OF THE CONTRACT, THE FACT REMAINS THAT THE FIXED AND
ESTIMATED COSTS OF PERFORMANCE, EXCLUSIVE OF OVERHEAD, AMOUNT TO LESS
THAN THE EVALUATED BID PRICE OF BUILDING MAINTENANCE. IN VIEW THEREOF,
WE ARE UNABLE TO CONCLUDE THAT ITS BID PRICE IS INSUFFICIENT TO PERMIT
THE BIDDER TO SATISFACTORILY PERFORM THE CONTRACT. IN THIS CONNECTION,
WE HAVE HELD THAT THE FACT THAT THE LOW BIDDER MIGHT INCUR A LOSS IN
PERFORMING THE CONTRACT AT THE PRICE SHOWN IN ITS BID DOES NOT JUSTIFY
REJECTING AN OTHERWISE ACCEPTABLE BID. B-172178, MAY 21, 1971;
B-171419, MARCH 15, 1971; 49 COMP. GEN. 311 (1969).
FOR THE REASONS SET FORTH ABOVE, YOUR PROTEST MUST BE DENIED.
B-173454, JUL 27, 1971
REQUIREMENTS CONTRACT - REFORMATION OF
DECISION ALLOWING REFORMATION OF A REQUIREMENTS CONTRACT LET TO ADAMS
INDUSTRIES, INC. BY THE PROCUREMENT DIVISION, FEDERAL SUPPLY SERVICE,
REGION 7, FORT WORTH, TEXAS. THE CONTRACTING OFFICER'S REPORT INDICATES
THAT HE SHOULD HAVE BEEN ON NOTICE OF AN ERROR IN THE BID AND SHOULD
HAVE VERIFIED THE BID PRIOR TO AWARD. SINCE THE RECORD SUBSTANTIATES
THE EXISTENCE OF THE ERROR, ADAMS MAY NOT BE LEGALLY HELD TO THE
CONTRACT UNIT PRICE, AND AN INCREASE TO THE AUDITED VERIFIED UNIT PRICE
SHOULD BE GRANTED.
TO MR. KUNZIG:
WE REFER TO A LETTER DATED JUNE 30, 1971, FROM THE GENERAL COUNSEL,
FORWARDING, FOR OUR REVIEW AND DECISION, THE FINDINGS AND DETERMINATION
OF A CONTRACTING OFFICER RECOMMENDING REFORMATION OF REQUIREMENTS
CONTRACT NO. GS-07S-14982, AWARDED TO ADAMS INDUSTRIES, INC. (ADAMS), BY
THE PROCUREMENT DIVISION, FEDERAL SUPPLY SERVICE, REGION 7, FORT WORTH,
TEXAS.
THE SOLICITATION UNDER WHICH THE CONTRACT WAS AWARDED COVERED NINE
ITEMS OF FLEXIBLE, WATERPROOFED BARRIER MATERIAL. AWARD OF ITEM 5 OF
THE SOLICITATION WAS MADE TO ADAMS ON JUNE 16, 1970, AS THE LOW BIDDER
AT A UNIT PRICE OF $10.26. THE ITEM CALLED FOR ROLLS OF BARRIER
MATERIAL FOR INTERIOR WRAPPING, 72 INCHES WIDE AND 200 YARDS LONG.
SUBSEQUENT TO AWARD, BY LETTER DATED OCTOBER 30, 1970, A REPRESENTATIVE
OF ADAMS ADVISED THE CONTRACTING OFFICER THAT AN ERROR IN BID HAD BEEN
MADE. MORE SPECIFICALLY, THE FIRM HAD PRICED THE REQUIRED MATERIAL ON
THE BASIS OF 100-RATHER THAN 200-YARD ROLLS.
THE CONTRACTING OFFICER HAS DETERMINED THAT THE DISCREPANCY BETWEEN
ADAMS' BID AND THE OTHER TWO HIGHER BIDS RECEIVED ON THE ITEM, 68.3 AND
237.1 PERCENT, RESPECTIVELY, SHOULD HAVE PLACED HIM ON NOTICE THAT A
MISTAKE IN BID HAD BEEN MADE; THEREFORE, HE STATES THAT THE BID SHOULD
HAVE BEEN VERIFIED PRIOR TO CONTRACT AWARD. HOWEVER, ADAMS SUBMITTED
SEVERAL CONFLICTING COST ANALYSES IN AN ATTEMPT TO SUPPORT AND DOCUMENT
ITS INTENDED BID. IN VIEW THEREOF, YOUR AGENCY CONDUCTED AN AUDIT
REVIEW OF THE CLAIM OF BID ERROR. THE REPORT OF AUDIT VERIFIED THAT A
LATER REVISED COST ANALYSIS WHICH WAS FURNISHED BY ADAMS TO SUPPORT A
UNIT PRICE OF $13.26 WAS REASONABLE AND IN ACCORDANCE WITH RELEVANT COST
RECORDS.
THE GENERAL COUNSEL RECOMMENDS THAT THE CONTRACT BE RESCINDED AND
ADAMS COMPENSATED ON A QUANTUM MERUIT BASIS FOR ROLLS OF ITEM 5
DELIVERED AT THE UNIT PRICE OF $13.26. IN THIS REGARD, WE NOTE THAT THE
CONTRACTOR HAS DELIVERED 245 ROLLS UNDER ITEM 5, AND THAT A CURRENT
ORDER REQUIRED DELIVERY OF AN ADDITIONAL 45 ROLLS IN JUNE. THE CONTRACT
EXPIRES JULY 31, 1971.
IT IS OUR VIEW THAT ADAMS CANNOT LEGALLY BE HELD TO THE CONTRACT UNIT
PRICE SINCE THE CONTRACTING OFFICER IS CLEARLY CHARGEABLE WITH NOTICE OF
ADAMS' ERROR. THEREFORE, IN THE ABSENCE OF PROOF OF WHAT ADAMS' BID
WOULD HAVE BEEN IN THE ABSENCE OF ERROR, WE BELIEVE THAT ADAMS IS
ENTITLED TO AN INCREASE IN THE CONTRACT PRICE TO THE AUDITED VERIFIED
UNIT PRICE OF $13.26 AS REASONABLE COMPENSATION FOR THE ARTICLES
DELIVERED AND TO BE DELIVERED UNDER THE CONTRACT. SEE 48 COMP. GEN.
672, 676 (1969). IT IS NOTED THAT THIS ADJUSTED UNIT PRICE WILL NOT
DISPLACE THE NEXT LOW BIDDER'S UNIT PRICE.
AS REQUESTED, THE ENCLOSURES FORWARDED WITH THE GENERAL COUNSEL'S
LETTER ARE RETURNED HEREWITH.
B-173496, JUL 27, 1971
BID PROTEST - MISTAKE IN BID
DECISION GRANTING RELIEF TO ELTRON RESEARCH CORPORATION FROM A
MISTAKE IN BID ALLEGED AFTER AWARD OF A CONTRACT LET BY VETERANS
ADMINISTRATION HOSPITAL, ALBANY, N.Y. UNDER AN IFB ISSUED FOR A VIDEO
OBSERVATION SYSTEM. FROM THE RECORD IT IS APPARENT THAT THE CONTRACTING
OFFICER SHOULD HAVE BEEN ON CONSTRUCTIVE NOTICE OF THE POSSIBILITY OF
ERROR AND SHOULD HAVE VERIFIED THE BID BEFORE LETTING THE CONTRACT. THE
CONTRACT SHOULD BE ADMINISTRATIVELY CANCELLED WITHOUT LIABILITY TO
ELTRON.
TO MR. JOHNSON:
REFERENCE IS MADE TO A LETTER DATED JULY 2, 1971, WITH ENCLOSURES,
FROM THE DIRECTOR, SUPPLY SERVICE, SUBMITTING FOR DECISION A REQUEST BY
ELTRON RESEARCH CORPORATION (ELTRON) FOR RELIEF FROM A MISTAKE IN BID
ALLEGED AFTER AWARD OF A CONTRACT BY THE VETERANS ADMINISTRATION
HOSPITAL, ALBANY, NEW YORK.
THE ALBANY VETERANS ADMINISTRATION HOSPITAL ISSUED INVITATION FOR BID
(IFB) 71-67 ON MAY 21, 1971, REQUESTING BIDS ON A VIDEO OBSERVATION
SYSTEM. BIDS WERE OPENED JUNE 8, 1971, AND ELTRON'S BID PRICE OF $1,920
TO FURNISH THE SYSTEM WAS THE LOW PRICE RECEIVED. THE TWO OTHER BIDS
RECEIVED WERE $3,591 AND $5,750. AWARD WAS MADE TO ELTRON ON JUNE 10 AT
ITS BID PRICE.
BY LETTER OF JUNE 14, 1971, ELTRON NOTIFIED THE CONTRACTING OFFICER
THAT IT HAD MADE A MISTAKE IN ITS BID AND REQUESTED THAT IT BE GRANTED
PERMISSION TO WITHDRAW ITS BID. IN ITS LETTER, ELTRON STATED THAT THE
PRICE QUOTED WAS ACTUALLY FOR ONE CAMERA AND MONITOR RATHER THAN FOR TWO
CAMERAS AND MONITORS CALLED FOR BY THE SOLICITATION. ELTRON THEREFORE
CLAIMS THAT ITS BID PRICE SHOULD HAVE BEEN $3,840 INSTEAD OF $1,920 AS
SHOWN ON ITS BID AS ACCEPTED. IN SUPPORT OF ITS CONTENTION ELTRON
ACCOMPANIED ITS LETTER WITH THE MANUFACTURER'S SPECIFICATION SHEETS AND
A PRICE BREAKDOWN ON THE EQUIPMENT OFFERED. AN EXAMINATION OF THE
FOREGOING REVEALS THAT ELTRON MISTAKENLY BID UPON ONE SYSTEM ONLY.
IN VIEW OF THE FOREGOING, WE AGREE THAT THE CONTRACTING OFFICER
SHOULD HAVE BEEN ON NOTICE OF ERROR IN BID AND THAT THE BID SHOULD NOT
HAVE BEEN ACCEPTED WITHOUT PRIOR VERIFICATION.
WHERE A MISTAKE HAS BEEN ALLEGED AFTER AWARD OF THE CONTRACT, OUR
OFFICE WILL GRANT RELIEF IF THE MISTAKE WAS MUTUAL OR THE CONTRACTING
OFFICER WAS ON ACTUAL OR CONSTRUCTIVE NOTICE OF THE ERROR PRIOR TO THE
AWARD. B-167031, JUNE 16, 1969; B-167816, SEPTEMBER 19, 1969;
B-167745, SEPTEMBER 2, 1969.
ACCORDINGLY, THE CONTRACT MAY BE CANCELED WITHOUT LIABILITY TO ELTRON
AS ADMINISTRATIVELY RECOMMENDED.
THE FILE TRANSMITTED WITH THE LETTER OF JULY 7, 1970, IS RETURNED.
B-167022, JUL 26, 1971
CIVILIAN EMPLOYEES - PERMANENT CHANGE OF STATIONS - MILEAGE FOR POV
DECISION DENYING CLAIMS OF UNMARRIED EMPLOYEES OF THE NATIONAL
OCEANIC AND ATMOSPHERIC ADMINISTRATION, WHO, WHILE AWAY FROM THEIR
PERMANENT DUTY STATIONS AND DETAILED ABOARD SHIPS OF THE ADMINISTRATION
BEING DELIVERED TO THEIR HOME PORTS HAD THEIR PERMANENT DUTY STATIONS
CHANGED TO COINCIDE WITH THE HOME PORT OF THE VESSEL, FOR MILEAGE FOR
TRANSPORTING THEIR PRIVATELY OWNED VEHICLE FROM THEIR OLD TO NEW DUTY
STATIONS. ONCE THE EMPLOYEE IS AT HIS NEW DUTY STATION, THE RETURN TO
TRANSPORT HIS AUTOMOBILE IS A MATTER OF PERSONAL BUSINESS AND NOT
REIMBURSABLE FOR MARRIED OR UNMARRIED EMPLOYEES. MARRIED EMPLOYEES MAY,
HOWEVER, BE REIMBURSED MILEAGE INSOFAR AS THE AUTO IS USED TO TRANSPORT
HIS DEPENDENTS TO THE NEW DUTY STATION AS SUCH PAYMENT IS MORE
ADVANTAGEOUS TO THE GOVERNMENT THAN PAYMENT FOR COMMERCIAL MEANS.
TO MR. R. P. HOGAN:
THIS REFERS TO YOUR LETTER OF JUNE 2, 1971, REFERENCE AD571, BY WHICH
YOU HAVE REQUESTED RECONSIDERATION OF OUR DECISION B-167022, DATED JUNE
18, 1969, INSOFAR AS IT APPLIES TO UNMARRIED EMPLOYEES.
THE CIRCUMSTANCES WHICH GAVE RISE TO THE CLAIM IN THAT DECISION ARE
SIMILAR TO THOSE INVOLVED IN A NUMBER OF CLAIMS FROM UNMARRIED EMPLOYEES
PRESENTLY BEFORE OUR CLAIMS DIVISION. BRIEFLY, THEY INVOLVE SITUATIONS
WHERE EMPLOYEES, WHILE AWAY FROM THEIR PERMANENT DUTY STATIONS AND
DETAILED ABOARD SHIPS OF YOUR ADMINISTRATION BEING DELIVERED TO THEIR
HOME PORTS, HAD THEIR PERMANENT DUTY STATIONS CHANGED TO COINCIDE WITH
THE HOME PORT OF THE VESSEL.
WE HELD IN B-167022 THAT, NOTWITHSTANDING THAT THE EMPLOYEE WAS
NOTIFIED OF A CHANGE IN HIS OFFICIAL STATION WHILE AWAY FROM HIS OLD
DUTY STATION, HAVING ONCE REPORTED TO HIS NEW DUTY STATION HE IS NOT
ENTITLED TO BE RETURNED AT GOVERNMENT EXPENSE TO THE OLD STATION TO
ATTEND TO THE PERSONAL BUSINESS OF MOVING HIS FAMILY AND HOUSEHOLD
EFFECTS. IN THAT CASE WE, THEREFORE, DISALLOWED REIMBURSEMENT OF PER
DIEM FOR HIMSELF FOR THE PERIOD OF TIME SPENT TRAVELING WITH HIS FAMILY
BETWEEN HIS OLD AND NEW STATIONS. WE INDICATED, HOWEVER, THAT SINCE HIS
PRIVATE CAR WAS USED TO TRANSPORT THE FAMILY BETWEEN THE OLD AND NEW
STATIONS HE WAS ENTITLED TO REIMBURSEMENT OF AN ALLOWANCE FOR MILEAGE.
YOU NOW INDICATE THAT UNMARRIED CREW MEMBERS FEEL THAT THE EFFECT OF
THIS DECISION IS NOT EQUITABLE AS IT APPLIES TO THEM, SINCE GENERALLY A
MARRIED EMPLOYEE CAN ARRANGE FOR HIS CAR TO BE DRIVEN TO THE NEW DUTY
STATION BY A MEMBER OF THE FAMILY AT GOVERNMENT EXPENSE WHILE A SINGLE
EMPLOYEE MUST PROVIDE FOR TRANSPORTATION OF HIS CAR AT HIS OWN EXPENSE.
YOU HAVE REQUESTED, IN VIEW OF THIS APPARENT INEQUITY, THAT WE REVISE
OUR DECISION B-167022 WITH A VIEW, UNDER THE PARTICULAR CIRCUMSTANCES,
TO ALLOWING MILEAGE FOR UNMARRIED SEAMEN BRINGING THEIR CARS FROM THEIR
OLD TO THEIR NEW DUTY STATIONS.
OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56 AUTHORIZES PAYMENT
OF THE COSTS OF TRANSPORTATION TO EFFECT PERMANENT CHANGE OF STATION FOR
A TRANSFERRED EMPLOYEE AND HIS FAMILY. SECTION 2.3 OF THE CIRCULAR
PROVIDES IN CONNECTION WITH SUCH TRANSPORTATION COSTS, THAT THE USE OF
PRIVATELY OWNED AUTOMOBILE BY AN EMPLOYEE AND HIS FAMILY WHO ARE
ELIGIBLE FOR A TRAVEL ALLOWANCE TO ACCOMPLISH PERMANENT CHANGE OF
STATION TRAVEL IS DEEMED TO BE ADVANTAGEOUS TO THE GOVERNMENT.
IN THE SITUATION WHERE, INCIDENT TO HIS TEMPORARY DUTY, AN EMPLOYEE
IS TRANSPORTED TO WHAT IS TO BECOME HIS NEW PERMANENT DUTY STATION, THE
COSTS OF HIS TRAVEL AND TRANSPORTATION HAVE BEEN PAID. HAVING REPORTED
TO HIS NEW DUTY STATION, HE IS INELIGIBLE FOR ANY FURTHER TRAVEL
ALLOWANCES. INASMUCH AS THE AUTHORIZATION FOR MILEAGE FOR THE USE OF A
PRIVATE AUTOMOBILE IS PREDICATED UPON ELIGIBILITY FOR A TRAVEL
ALLOWANCE, THERE IS NO AUTHORITY FOR THE PAYMENT OF MILEAGE TO AN
EMPLOYEE, MARRIED OR SINGLE, WHO, HAVING ONCE REPORTED TO HIS NEW DUTY
STATION, RETURNS TO HIS FORMER STATION IN ORDER TO DRIVE HIS PRIVATE CAR
TO THE NEW STATION. HIS TRAVEL AND TRANSPORTATION EXPENSES IN SUCH
EVENT ARE FOR THE PURPOSE OF ATTENDING TO MATTERS WHICH ARE REGARDED AS
PERSONAL RATHER THAN OFFICIAL BUSINESS.
AS INDICATED, A MILEAGE ALLOWANCE IS AUTHORIZED AS IN B-167022, JUNE
18, 1969, WHERE AN EMPLOYEE'S FAMILY FOR WHICH TRANSPORTATION EXPENSES
ARE AUTHORIZED USES A PRIVATE CAR TO EFFECT PERMANENT CHANGE OF STATION
TRAVEL. THE REASON FOR THIS IS THAT IN MOST INSTANCES IT IS TO THE
GOVERNMENT'S BENEFIT TO PAY ON A MILEAGE BASIS FOR TRANSPORTATION OF THE
EMPLOYEE'S FAMILY RATHER THAN TO PROVIDE FOR SUCH TRANSPORTATION AT
COMMON CARRIER RATES. THAT IN SUCH CASES THE EXPENSE OF TRANSPORTING
THE CAR TO THE NEW DUTY STATION IS IN EFFECT BORNE BY THE GOVERNMENT IS
MERELY INCIDENTAL TO THE PRIMARY PURPOSE FOR WHICH USE OF A PRIVATE
AUTOMOBILE IS AUTHORIZED WHICH IS TO PROVIDE TRANSPORTATION FOR THE
FAMILY MEMBERS.
WE POINT OUT THAT IN INSTANCES WHERE THE WIFE OF AN EMPLOYEE HAS
ACCOMPANIED HIM TO HIS TEMPORARY DUTY STATION AND WHERE HE IS INFORMED
OF A PERMANENT CHANGE OF STATION WHILE AWAY FROM HIS PERMANENT STATION,
THE EMPLOYEE WOULD BE IN A POSITION SIMILAR TO THAT OF THE SINGLE
EMPLOYEE WHO MUST ATTEND TO THE TRANSPORTATION OF HIS CAR AS A MATTER OF
PERSONAL BUSINESS. ALSO, A MARRIED EMPLOYEE WITH TWO AUTOMOBILES IN A
CHANGE OF STATION SITUATION MIGHT BE REQUIRED TO TRANSPORT HIS SECOND
CAR AT HIS OWN EXPENSE.
ACCORDINGLY, WE FIND NO AUTHORITY UNDER THE LAW OR REGULATIONS TO
PERMIT PAYMENT OF ANY EXPENSES OF AN UNMARRIED CREW MEMBER IN RETURNING
TO HIS OLD STATION (AFTER REPORTING TO THE NEW STATION)
B-172179, JUL 26, 1971
BID PROTEST - NONRESPONSIVE BID - AMBIGUITY IN BID
DENIAL OF PROTEST BY YORK-SHIPLEY, INC. AGAINST REJECTION OF BID AS
NONRESPONSIVE UNDER AN IFB ISSUED BY ALBROOK AFB, CANAL ZONE, FOR A
"PACKAGE TYPE BOILER UNIT." THE BID WAS RULED NONRESPONSIVE BECAUSE THE
ENCLOSED DESCRIPTIVE LITERATURE INDICATED THAT THE ITEM COULD NOT MEET
THE IFB SPECIFICATIONS.
WHERE THE CIRCUMSTANCES ARE SUCH AS TO CREATE AN AMBIGUITY AS TO WHAT
THE BIDDER INTENDED TO OFFER, THE BID MUST BE REJECTED AS NONRESPONSIVE.
THE DESCRIPTIVE MATERIAL SUBMITTED BY YORK RAISED A QUESTION AS TO
WHETHER THE BIDDER INTENDED TO COMPLY WITH THE SPECIFICATIONS AND THUS
MADE THE BID NONRESPONSIVE.
TO YORK-SHIPLEY, INC.:
REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 15, 1971, AND YOUR
LETTERS OF MARCH 22 AND APRIL 28, 1971, PROTESTING THE REJECTION OF YOUR
BID AS NONRESPONSIVE UNDER INVITATION FOR BIDS (IFB) F66501-71-B-0732,
ISSUED FEBRUARY 5, 1971, BY THE ALBROOK AFB, CANAL ZONE.
THE REFERENCED IFB SOUGHT THE PROCUREMENT OF A "PACKAGE-TYPE BOILER
UNIT" FOR THE AIRMEN'S BARRACKS AT THAT BASE.
UPON OPENING OF BIDS AT 10:00 A.M., FEBRUARY 26, 1971, IT WAS
ASCERTAINED THAT THREE FIRMS HAD SUBMITTED BIDS, AND THAT YOURS
CONSTITUTED THE LOWEST AT A TOTAL PRICE OF $8,350.00, INCLUDING $400.00
FOR INSTALLATION.
ALTHOUGH NEITHER SOLICITED NOR REQUIRED BY THE IFB, EACH BID WAS
ACCOMPANIED BY DESCRIPTIVE LITERATURE.
ALL OF THE BIDS, REPLETE WITH DESCRIPTIVE LITERATURE, WERE
SUBSEQUENTLY FORWARDED TO THE CHIEF OF THE ENGINEERING AND CONSTRUCTION
BRANCH, 24TH COMBAT SUPPORT GROUP, WHO, AFTER EXAMINATION OF THE SAME,
RECOMMENDED THAT THE ITEM SET FORTH IN YOUR DESCRIPTIVE LITERATURE
FAILED TO MEET THE FEDERAL TECHNICAL SPECIFICATIONS OF THE IFB IN
SEVERAL MATERIAL RESPECTS, AND THAT YOUR BID SHOULD CONSEQUENTLY BE
REJECTED.
UPON RECEIPT OF THE AFOREMENTIONED EVALUATION, THE CONTRACTING
OFFICER REVIEWED THE STATEMENTS THEREIN CONTAINED AND, UPON EXAMINATION
OF YOUR BID PACKAGE IN THE LIGHT OF THE CONCLUSIONS OF THE ENGINEERING
PERSONNEL, CONCURRED IN THE RECOMMENDATION THAT YOUR BID BE CONSIDERED
NONRESPONSIVE.
AFTER YOU WERE NOTIFIED BY LETTER OF MARCH 4, 1971, THAT YOUR BID HAD
BEEN REJECTED, THE AWARD WAS MADE TO THE SECOND LOW BIDDER, INDUSTRIAL
COMBUSTION, INC., ON MARCH 10, 1971, AT A PRICE OF $9,525.00.
HAVING BEEN PROMPTLY NOTIFIED OF THE CONSUMMATION OF THE AWARD, YOU
REGISTERED A PROTEST WITH OUR OFFICE BY A TELEGRAM DATED MARCH 15, 1971,
IN WHICH YOU CONTENDED THAT NO EXCEPTIONS TO THE SPECIFICATIONS HAD BEEN
TAKEN, AND YOU ALSO REQUESTED CANCELLATION OF THE AWARD.
YOUR LETTER OF MARCH 22, 1971, AGAIN STATED THAT YOU HAD TAKEN NO
EXCEPTIONS TO THE SPECIFICATIONS BUT HAD MERELY INCLUDED A SALES
BROCHURE TO DEMONSTRATE THE CONFIGURATION OF YOUR PARTICULAR BOILER
DESIGN. IN YOUR LETTER OF APRIL 28, 1971, YOU STATE THAT THE REASON YOU
SUBMITTED THE BROCHURE WAS THAT THE DIMENSIONAL REQUIREMENTS WERE
INCLUDED IN NEITHER THE SPECIFICATIONS OF THE IFB NOR THE ENCLOSED FLOOR
PLAN OF THE BUILDING INTO WHICH THE EQUIPMENT WAS TO BE INSTALLED. YOU
MAINTAIN THAT THE SUBMISSION OF UNSOLICITED DESCRIPTIVE LITERATURE BY
THE THREE BIDDERS WAS NOT EVIDENCE OF ANY INTENT TO QUALIFY THEIR BIDS.
IN SUPPORT OF THIS CONTENTION, YOU CITE ARMED SERVICES PROCUREMENT
REGULATION (ASPR) 2-202.5(F) WHICH PROVIDES:
"IF THE FURNISHING OF DESCRIPTIVE LITERATURE IS NOT REQUIRED BY THE
INVITATION FOR BIDS, BUT SUCH LITERATURE IS FURNISHED WITH A BID, IT
WILL NOT BE CONSIDERED AS QUALIFYING THE BID, AND WILL BE DISREGARDED,
UNLESS IT IS CLEAR FROM THE BID OR ACCOMPANYING PAPERS THAT IT WAS THE
BIDDER'S INTENTION SO TO QUALIFY THE BID."
IT WAS DETERMINED THAT THE BROCHURE SUBMITTED WITH YOUR BID QUALIFIED
YOUR BID WITH REGARD TO THE FOLLOWING SPECIFICATIONS APPEARING UNDER
SECTION E OF THE REFERENCED SOLICITATION:
1) PARAGRAPH 3: " *** THE BOILER WILL BE PROVIDED WITH HINGED ACCESS
DOORS *** "
2) PARAGRAPH 5 (B): " *** FUEL-AIR CONTROL SHALL PROVIDE MODULATED
REGULATION OF AIR DAMPER AND THE OIL METERING VALVE BY MEANS OF FULL
MODULATION PRINCIPLE *** "
3) PARAGRAPH 5 (D): "AIR DAMPER SHALL BE PROVIDED AND OPERATED BY A
CONTROL MOTOR WHICH REGULATES THE FIRE ACCORDING TO LOAD DEMAND."
THE EVALUATION OF YOUR BROCHURE REVEALED THAT YOUR ITEM FAILED TO
COMPLY WITH THE CITED SPECIFICATIONS FOR THESE REASONS:
1) THE STANDARD EQUIPMENT INCLUDED CLEAN-OUT OPENINGS ONLY; HINGED
DOORS ARE MENTIONED ONLY AS ONE OF 26 OPTIONS AND NOT AS PART OF THE
STANDARD EQUIPMENT;
2) WHILE THE REQUIRED MODULATED FIRING WAS PART OF THE OPTIONAL
EQUIPMENT FOR HEAVY OIL BURNERS, THE SPECIFICATIONS REQUIRED THE BOILER
TO OPERATE ON JP-5 FUEL OIL AND, AS SUCH, REQUIRE A LIGHT OIL BURNER.
HOWEVER, THE DESCRIPTIVE BROCHURE PROVIDED FOR NO MODULATED REGULATION
WHATSOEVER FOR THE LIGHT OIL BURNER; NOT EVEN AS PART OF THE OPTIONAL
EQUIPMENT;
3) THE DESCRIPTIVE LITERATURE FAILED TO MENTION A MOTOR-REGULATED AIR
DAMPER, WITH THE ONLY REFERENCE TO THE SUBJECT BEING A SENTENCE STATING:
"A SIMPLE FLUE VENT WITHOUT DAMPERS OR DRAFT REGULATORS TO CARRY
EXISTING GASES OUTSIDE IS SUFFICIENT, HOWEVER, LOCAL REGULATIONS MUST BE
OBSERVED."
IN VIEW THEREOF, IT WAS CONCLUDED THAT THE BOILER DESCRIBED BY YOUR
LITERATURE DID NOT CLEARLY CONFORM TO THE SPECIFICATIONS OF THE IFB, AND
SINCE THE DEVIATIONS AFFECTED THE QUALITY OF THE ITEM, THEY COULD NOT BE
WAIVED AS MINOR INFORMALITIES PURSUANT TO ASPR 2-405.
WITH REGARD TO THE RECURRING PROBLEM OF UNSOLICITED DESCRIPTIVE
LITERATURE WHICH QUALIFIES A BID, AND NOTWITHSTANDING THE PROVISIONS OF
ASPR 2-202.5(F), WE HAVE RULED:
"IN SITUATIONS WHERE A BIDDER ACCOMPANIES HIS BID WITH UNSOLICITED
MATERIAL WHICH ON ITS FACE QUALIFIES THE BID, THE BID MAY BE ACCEPTED
ONLY WHERE THE EVIDENCE CLEARLY ESTABLISHES THAT THE BIDDER INTENDED TO
CONFORM TO THE SPECIFICATIONS." B-166284, APRIL 14, 1969; SEE ALSO
B-167584, OCTOBER 3, 1969.
IF THE CIRCUMSTANCES ARE REASONABLY SUSCEPTIBLE OF A CONCLUSION THAT
THE LITERATURE WAS INTENDED TO QUALIFY THE BID OR IF THE INCLUSION OF
THE LITERATURE CREATES AN AMBIGUITY AS TO WHAT THE BIDDER INTENDED TO
OFFER, THEN THE BID MUST BE REJECTED AS NONRESPONSIVE TO THE IFB.
B-169057, JUNE 17, 1970, 49 COMP. GEN. ___. AND THE FACT THAT AFTER BID
OPENING A BIDDER STATES, AS IN THE INSTANT CASE, THAT HE DID NOT TAKE,
OR INTEND TO TAKE, ANY EXCEPTION TO THE SPECIFICATIONS IS INSUFFICIENT
TO NULLIFY THE APPLICATION AND EFFECT OF THE CITED RULES. B-171844, MAY
4, 1971.
WE DO NOT NECESSARILY AGREE WITH THE ENGINEERING PERSONNEL THAT YOUR
BID WAS QUALIFIED WITH REGARD TO THE ABSENCE OF HINGED ACCESS DOORS ON
THE STANDARD MODEL SET OUT IN THE BROCHURE SINCE THEY WERE AVAILABLE AS
ONE OF THE 26 OPTIONS AND, AS SUCH, COULD QUITE CONCEIVABLY BE
CONTEMPLATED AS BEING INCLUDED ON THE ITEM SUPPLIED SO AS TO COMPLY WITH
THE SPECIFICATIONS IN THIS REGARD.
HOWEVER, IT IS QUITE APPARENT FROM THE BROCHURE THAT, SINCE MODULATED
FIRING WAS NOT LISTED ANYWHERE UNDER THE LIGHT OIL BURNER, AND AS AN
OPTION ONLY UNDER THE HEAVY OIL BURNER, THE LIGHT OIL BURNER REPRESENTED
BY THE BROCHURE FAILED TO INCLUDE THIS MATERIAL REQUIREMENT OF THE
SPECIFICATIONS; NOR WAS THERE ANY PROVISION BY WHICH IT COULD BE
INCORPORATED AS AN OPTION.
IT IS FURTHER APPARENT THAT THE MODELS DESCRIBED BY THE BROCHURE
CONTAINED SIMPLE FLUE VENTS, DEVOID OF THE MOTOR-REGULATED AIR DAMPER
REQUIRED BY THE SPECIFICATIONS. THE STATEMENT: " *** HOWEVER, LOCAL
REGULATIONS MUST BE OBSERVED" IS AMBIGUOUS AT BEST ON THE QUESTION OF
WHETHER THE ITEM OFFERED WAS SUSCEPTIBLE TO MODIFICATION SO AS TO COMPLY
WITH THIS SPECIFICATION.
UNDER THE CIRCUMSTANCES, IT IS OUR CONCLUSION THAT THE BROCHURE
SUBMITTED WITH YOUR BID CREATED, AT THE VERY LEAST, A SERIOUS AMBIGUITY
AS TO WHETHER THE ITEM YOU INTENDED TO OFFER WOULD BE EQUIPPED WITH A
MOTOR-REGULATED AIR DAMPER AS REQUIRED BY THE SPECIFICATIONS. IN VIEW
THEREOF, OF YOUR FAILURE TO CLEARLY INDICATE IN YOUR BID THAT THE
BROCHURE WAS NOT INTENDED TO QUALIFY YOUR BID, WE MUST CONCUR WITH THE
AIR FORCE PERSONNEL THAT YOUR BID WAS NONRESPONSIVE.
ACCORDINGLY, YOUR PROTEST IS DENIED.
B-172656, JUL 26, 1971
BID PROTEST - BIDDER RESPONSIBILITY
DECISION CONCERNING PROTESTS AGAINST AWARDS OF CONTRACTS TO OTHER
FIRMS UNDER FOUR INVITATIONS ISSUED BY THE ARMY MATERIEL COMMAND, ROCK
ISLAND ARSENAL, DUE TO FINDINGS OF NONRESPONSIBILITY.
IN ACCORDANCE WITH PRIOR DECISIONS, ABSENT A CLEAR SHOWING OF BAD
FAITH OR LACK OF A REASONABLE BASIS THEREFORE IN THE RECORD, THE
CONTRACTING OFFICER'S DETERMINATION THAT PROTESTANT WAS NONRESPONSIBLE,
WILL NOT BE QUESTIONED BY GAO.
TO IMCO PRECISION PRODUCTS INC.:
WE REFER TO YOUR LETTER DATED JULY 2, 1971, AND PRIOR CORRESPONDENCE,
PROTESTING AGAINST THE AWARDS OF CONTRACTS TO OTHER FIRMS UNDER
INVITATIONS FOR BIDS NOS. DAAF01-71-B-0582, DAAF01-71-B-0551,
DAAF01-71-B-0577 AND DAAF01-71-B-0644, ALL ISSUED BY THE ARMY MATERIEL
COMMAND (AMC), ROCK ISLAND ARSENAL (RIA), ILLINOIS.
THIS PROTEST IS A CONTINUATION OF THE CONTRACTUAL DEALINGS BETWEEN
IMCO AND RIA WHEREBY IMCO HAS BEEN THE LOW RESPONSIVE BIDDER ON VARIOUS
PROCUREMENTS BUT DENIED AWARDS DUE TO RIA'S FINDINGS OF
NONRESPONSIBILITY. IN OUR DECISION TO YOU B-169342, B-169351, B-169503,
JUNE 19, 1970, WE EMPHASIZED OUR CONSISTENT RECOGNITION THAT THE
DETERMINATION OF THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR FOR
PARTICULAR CONTRACTS IS PRIMARILY THE FUNCTION OF THE CONTRACTING
OFFICER. IN VIEW THEREOF, ABSENT A CLEAR SHOWING OF BAD FAITH OR LACK
OF A REASONABLE BASIS THEREFOR IN THE RECORD, THE DETERMINATION WILL NOT
BE QUESTIONED BY OUR OFFICE.
WE HAVE THOROUGHLY AND CAREFULLY REVIEWED THE DETERMINATIONS OF RIA
CONTRACTING OFFICIALS, AS SUPPORTED BY AN EXHAUSTIVE LEGAL ANALYSIS,
THAT IMCO WAS NONRESPONSIBLE WITH RESPECT TO THE FOUR AWARDS AGAINST
WHICH THIS PROTEST HAS BEEN FILED. OUR REVIEW HAS UNCOVERED NO BASIS
UPON WHICH WE MIGHT CONCLUDE THAT RIA CONTRACTING OFFICIALS ACTED
UNREASONABLY OR IN BAD FAITH IN FINDING IMCO NONRESPONSIBLE. IN THIS
REGARD, WE ENCLOSE COPIES OF PERTINENT PORTIONS OF AMC'S ADMINISTRATIVE
REPORT TO OUR OFFICE ON THE PROTESTS FOR YOUR INFORMATION.
YOU WITHDREW YOUR PREAWARD PROTEST UNDER INVITATION FOR BIDS NO.
DAAF01-71-B-0792 SINCE RIA INFORMED IMCO THAT AS THE LOW RESPONSIVE,
RESPONSIBLE BIDDER, THE FIRM WOULD BE AWARDED THE CONTRACT. AMC ADVISES
THAT IMCO IS CONSIDERED TO BE RESPONSIBLE FOR PURPOSES OF AWARD
THEREUNDER SINCE, SUBSEQUENT TO THE AWARDS OF THE PROTESTED CONTRACTS,
IT HAS TAKEN SUCH CORRECTIVE STEPS TO REMOVE RIA'S RESPONSIBILITY
OBJECTIONS THAT RIA ANTICIPATES TIMELY DELIVERY AND EFFECTIVE
MANUFACTURE OF THE DESIRED ITEM.
B-173113, JUL 26, 1971
CIVILIAN EMPLOYEE - TEMPORARY QUARTERS ALLOWANCE - POST APPROVAL
DECISION ALLOWING CLAIM OF MR. GARY GUNTER FOR REIMBURSEMENT OF
$488.76, REPRESENTING HIS EXPENSES FOR TEMPORARY QUARTERS AND
SUBSISTANCE INCURRED IN CONNECTION WITH HIS TRANSFER OF DUTY STATIONS.
SINCE THE RECORD INDICATES THAT CLAIMANT WOULD HAVE BEEN ENTITLED TO
REIMBURSEMENT EXCEPT FOR AN OVERSIGHT IN MARKING HIS FORM 6500-140, ITEM
6, AUTHORIZATION FOR TEMPORARY QUARTERS, AND AS THE EXPENSES ARE
PROPERLY ITEMIZED AND VERIFIED, PAST APPROVAL OF EXPENSES IS NOT
OBJECTIONABLE.
TO MR. D. W. RAAKA:
REFERENCE IS MADE TO YOUR LETTER DATED MAY 19, 1971, REFERENCE 6540,
WITH ENCLOSURES, REQUESTING A DECISION FROM OUR OFFICE AS TO THE
PROPRIETY OF CERTIFYING FOR PAYMENT A VOUCHER IN FAVOR OF MR. GARY
GUNTER FOR REIMBURSEMENT OF $488.76, REPRESENTING HIS CLAIM FOR
TEMPORARY QUARTERS ALLOWANCE IN CONNECTION WITH TRANSFER OF HIS OFFICIAL
DUTY STATION FROM THE UMPQUA NATIONAL FOREST, REGION 6, TO THE LOS
PADRES NATIONAL FOREST, REGION 5, IN SEPTEMBER 1970.
THE RECORD SHOWS THAT THE EMPLOYEE FILED FORM 6500-140, INDIVIDUAL'S
REQUEST FOR AUTHORIZATION, ON JULY 6, 1970, BUT FAILED TO CHECK THE BOX
IN ITEM 6 INDICATING THAT HE WAS REQUESTING APPROVAL FOR TEMPORARY
QUARTERS AND SUBSISTENCE EXPENSES. CONSEQUENTLY, WHEN TRAVEL
AUTHORIZATION NO. R5-29 7 4483 WAS ISSUED ON JULY 29, 1970,
AUTHORIZATION FOR TEMPORARY QUARTERS AND SUBSISTENCE EXPENSES WAS
OMITTED.
THE RECORD FURTHER SHOWS THAT MR. GUNTER AND HIS FAMILY MOVED INTO
TEMPORARY QUARTERS ON SEPTEMBER 30, 1970, AND VACATED THE QUARTERS ON
OCTOBER 29, 1970. SUBSISTENCE EXPENSES SUCH AS MEALS AND LAUNDRY ARE
ITEMIZED AND THE CLAIM IS SUPPORTED BY A RECEIPT FOR LODGING IN
CONFORMITY WITH THE REQUIREMENTS OF SECTION 2.5D OF OFFICE OF MANAGEMENT
AND BUDGET CIRCULAR NO. A-56, REVISED JUNE 26, 1969. THERE IS A
STATEMENT IN THE RECORD BY THE ADMINISTRATIVE OFFICER TO THE EFFECT THAT
MR. GUNTER WAS ENTITLED TO TEMPORARY QUARTERS AND SUBSISTENCE EXPENSES
AND THAT SUCH WOULD HAVE BEEN APPROVED HAD THE EMPLOYEE INDICATED SO IN
THE APPROPRIATE BOX OF HIS FORM 6500-14).
YOU ASK IF UNDER THESE CIRCUMSTANCES MR. GUNTER'S CLAIM FOR TEMPORARY
QUARTERS AND SUBSISTENCE EXPENSES COULD BE POST APPROVED. SINCE THE
RECORD INDICATES THAT AUTHORIZATION WOULD HAVE BEEN GRANTED BUT FOR THE
ERROR OF OMISSION TO REQUEST SAME, WE OFFER NO OBJECTION TO POST
APPROVAL OF THE EXPENSES, AND CERTIFICATION OF THE VOUCHER.
THE VOUCHER IS RETURNED HEREWITH FOR HANDLING IN ACCORDANCE WITH THE
ABOVE.
B-173142, JUL 26, 1971
TRAVEL AND PER DIEM - COMMUTED RATES - EXCESS EXPENSES
AN ADVANCE DECISION CONCERNING CLAIM OF MR. THEODORE D. BACON FOR
ADDITIONAL REIMBURSEMENT OF EXCESS TRAVEL EXPENSES AND PER DIEM INCIDENT
TO HIS SELECTION TO A POSITION WITH THE OFFICE OF EDUCATION. THE
AGREEMENT SIGNED BY CLAIMANT STATED THAT TRAVEL AND PER DIEM ALLOWANCES
WOULD BE PAID IN ACCORDANCE WITH APPLICABLE REGULATIONS.
CLAIMANT WAS PAID UNDER THE COMMUTED RATE SYSTEM OF SECTION 6.4A, OMB
CIRCULAR A-56. CONSEQUENTLY, THE AMOUNTS IN EXCESS OF THE PROVIDED
SCHEDULES OF TRAVEL ALLOWANCES MAY NOT BE PAID.
SECTION 2.2C(1), OMB CIRCULAR A-56, PROHIBITS THE PAYMENT OF THE PER
DIEM RATES TO THE MEMBERS OF CLAIMANT'S FAMILY. UNDER THE CONTROLLING
REGULATIONS, THERE IS NO ADDITIONAL AMOUNT DUE OR PROPERLY PAYABLE TO
MR. BACON.
TO MR. FLETCHER R. BRANDE:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 27, 1971, REFERENCE
ADM:FD:FSB, AND ENCLOSURES, REQUESTING AN ADVANCE DECISION ON THE CLAIM
OF MR. THEODORE D. BACON FOR ADDITIONAL REIMBURSEMENT OF TRAVEL EXPENSES
INCIDENT TO HIS SELECTION FOR APPOINTMENT TO A "MANPOWER SHORTAGE"
POSITION WITH THE OFFICE OF EDUCATION. THE ITEMS CLAIMED ARE FOR
EXPENSES WHICH EXCEEDED THOSE ALLOWED UNDER THE COMMUTED RATE SYSTEM AND
FOR PER DIEM ALLOWANCES FOR DEPENDENTS.
THE RECORD INDICATES THAT PURSUANT TO AUTHORIZED TRAVEL ORDERS MR.
BACON MOVED HIMSELF, HIS FAMILY, PERSONAL EFFECTS, AND HOUSEHOLD GOODS
FROM THE VICINITY OF LOS ANGELES, CALIFORNIA, TO WASHINGTON, D.C. THOSE
ORDERS GAVE AUTHORIZATION FOR THE TRAVEL OF THE EMPLOYEE AND HIS
DEPENDENTS BY AUTOMOBILE AT 12 CENTS PER MILE AND TRANSPORTATION OF
HOUSEHOLD GOODS AND PERSONAL EFFECTS. PER DIEM WAS AUTHORIZED IN
ACCORDANCE WITH DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE POLICY AND
THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS (SGTR) AT THE VARYING
RATES PRESCRIBED BY SGTR. THE GOVERNMENT SERVICE AGREEMENT EXECUTED BY
MR. BACON RECITED THAT PAYMENT OF HIS TRAVEL EXPENSES AND TRANSPORTATION
EXPENSES FOR HIS IMMEDIATE FAMILY, HOUSEHOLD GOODS, PERSONAL EFFECTS,
AND ANY OTHER RELOCATION ALLOWANCE OR BENEFIT WAS "AUTHORIZED IN
ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE BUREAU OF THE BUDGET (NOW
THE OFFICE OF MANAGEMENT AND BUDGET) *** IN CONJUNCTION WITH *** INITIAL
APPOINTMENT FOR PERMANENT DUTY *** ." YOUR LETTER STATES THAT MR.
BACON'S ORIGINAL CLAIM HAS BEEN PAID EXCEPT FOR THE ADJUSTED SUM OF
$512.43 WHICH IS COMPRISED OF AN AMOUNT OF $212.67, THE EXCESS EXPENSES
FOR STORAGE AND TRANSPORTATION OVER THE AMOUNT ALLOWED UNDER THE
COMMUTED RATE SYSTEM, AND AN AMOUNT OF $306 FOR PER DIEM TRAVEL
ALLOWANCES FOR HIS SPOUSE AND TWO CHILDREN. THE DIFFERENTIAL OF $6.24
RESULTED FROM AN ERROR IN THE COMPUTATION OF MR. BACON'S CLAIM FOR
MILEAGE ($327.36) AND THE AMOUNT PROPERLY PAID ($333.60).
YOU HAVE STATED THAT "MR. BACON BELIEVES THAT HE SHOULD BE REIMBURSED
FOR THE FULL AMOUNT CLAIMED BECAUSE HE ACTED IN GOOD FAITH IN COMPLYING
WITH INSTRUCTIONS PROVIDED BY THE OFFICE OF EDUCATION."
THE "INSTRUCTIONS" HE APPARENTLY RELIES ON ARE CONTAINED IN THE THIR
PARAGRAPH OF A LETTER DATED NOVEMBER 18, 1968, WHICH GENERALLY OFFERED
HIM THE POSITION OF SUPERVISORY COMPUTER SPECIALIST. THAT PARAGRAPH
STATES: "THE GOVERNMENT WILL BEAR THE COST OF TRANSPORTATION OF
HOUSEHOLD GOODS AND THE TRAVEL EXPENSES OF YOU AND YOUR DEPENDENTS TO
YOUR POST OF DUTY PROVIDED YOU SIGN AND RETURN TWO COPIES OF THE
ENCLOSED AGREEMENT TO SERVE IN THE GOVERNMENT FOR ONE YEAR. *** " AS
PREVIOUSLY INDICATED THAT "ENCLOSED AGREEMENT" MAKES AN EXPLICIT
INCORPORATING REFERENCE TO PAYMENT OF EXPENSES AND RELOCATION ALLOWANCES
AS AUTHORIZED BY REGULATIONS PRESCRIBED BY THE BUREAU OF THE BUDGET (NOW
THE OFFICE OF MANAGEMENT AND BUDGET).
IT IS CLEAR THAT THE PARAGRAPH QUOTED ABOVE, TOGETHER WITH THE
REGULATION-INCORPORATING PROVISIONS OF THE SERVICE AGREEMENT EXECUTED BY
MR. BACON, DOES NOT AUTHORIZE THE REIMBURSEMENT OF EXPENSES WHICH ARE
NOT OTHERWISE ALLOWABLE UNDER CONTROLLING PROVISIONS OF LAW.
THE BASIC STATUTORY AUTHORITY FOR PAYMENT OF TRAVEL AND
TRANSPORTATION EXPENSES OF NEW APPOINTEES IS FOUND IN 5 U.S.C. 5723, AND
REIMBURSEMENT OF SUCH EXPENSES IS CONDITIONED ON THE NEW EMPLOYEE'S
EXECUTION AND FULFILLMENT OF A 12-MONTH SERVICE AGREEMENT. IMPLEMENTING
REGULATIONS ARE AUTHORIZED AND HAVE BEEN ISSUED IN OFFICE OF MANAGEMENT
AND BUDGET CIRCULAR NO. A-56. SECTION 5 GENERALLY PROVIDES THAT NEW
APPOINTEES MAY RECEIVE VARIOUS TYPES OF ALLOWANCES FOR THEIR OWN
EXPENSES OF TRAVEL AND TRANSPORTATION OF THEIR IMMEDIATE FAMILIES,
HOUSEHOLD GOODS, AND PERSONAL EFFECTS FROM THE PLACE OF ACTUAL RESIDENCE
AT THE TIME OF SELECTION FOR APPOINTMENT TO THEIR FIRST PERMANENT DUTY
STATION. THE ALLOWANCES WILL BE PAID AS PROVIDED IN OTHER PERTINENT
SECTIONS OF CIRCULAR NO. A-56.
ONE OF THOSE SECTIONS IS SECTION 6 WHICH COVERS THE TRANSPORTATION
AND STORAGE OF HOUSEHOLD GOODS AND PERSONAL EFFECTS. SECTION 6.4A
DESCRIBES THE COMMUTED RATE SYSTEM WHICH WAS USED IN THE CASE OF MR.
BACON. REIMBURSEMENT UNDER THIS SYSTEM IS LIMITED TO THE APPLICABLE
SCHEDULE AND COVERS EACH OF THE SERVICES PROVIDED BY THE CARRIER
INCLUDING NOT ONLY TRANSPORTATION BUT ALSO PACKING AND UNPACKING,
CRATING, DRAYAGE, AND TEMPORARY STORAGE. ACCORDINGLY, SINCE THE
COMMUTED RATE SYSTEM WAS USED AND PAYMENTS WERE PRESUMABLY MADE IN
ACCORDANCE WITH THE APPLICABLE SCHEDULE, THERE IS NO BASIS ON WHICH TO
AUTHORIZE THE PAYMENT OF ANY CLAIM ($212.67) FOR ADDITIONAL
TRANSPORTATION AND STORAGE EXPENSE INCIDENT TO THE MOVEMENT OF HIS
HOUSEHOLD GOODS AND PERSONAL EFFECTS. SEE B-172017, MARCH 16, 1971,
COPY ENCLOSED.
YOUR LETTER INDICATED THAT $75 OF THE $212.67 CLAIM WAS FOR SHIPMENT
OF A BOAT AND TRAILER. THE DEFINITION CONTAINED IN SECTION 1.2H OF
CIRCULAR NO. A-56 EXPRESSLY EXCLUDES BOATS FROM THE CATEGORY OF
HOUSEHOLD GOODS AND PERSONAL EFFECTS AND WOULD APPEAR TO IMPLICITLY
EXCLUDE BOAT TRAILERS FROM SUCH CATEGORY. THEREFORE, AN ADDITIONAL
BASIS EXISTS FOR DISALLOWANCE OF THE EXPENSE FOR SHIPMENT OF THE BOAT
AND TRAILER.
SECTIONS 2.1 AND 2.2A OF CIRCULAR NO. A-56, RESPECTIVELY, AUTHORIZE
THE ALLOWANCE OF PER DIEM IN LIEU OF SUBSISTENCE EXPENSES,
TRANSPORTATION COSTS, AND OTHER TRAVEL EXPENSES FOR THE EMPLOYEE AND
CERTAIN TRAVEL EXPENSES FOR THE EMPLOYEE'S IMMEDIATE FAMILY IN
ACCORDANCE WITH SGTR. SECTION 2.2C(1) EXPRESSLY EXCLUDES THE PAYMENT OF
PER DIEM ALLOWANCES FOR MEMBERS OF A NEW APPOINTEE'S IMMEDIATE FAMILY.
IN VIEW OF THE FOREGOING WE CONCLUDE THAT NO ADDITIONAL AMOUNT IS DUE
OR PROPERLY PAYABLE TO MR. BACON. YOUR ENCLOSURES ARE RETURNED
HEREWITH.
B-173327, JUL 26, 1971
BID PROTEST - BID RESPONSIVENESS - MINIMUM REQUIREMENTS
DECISION DENYING PROTEST BY CARTER CONSTRUCTION CO., INC., AGAINST
REJECTION OF ITS BID AS NONRESPONSIVE TO AN IFB ISSUED BY THE ARMY
ENGINEER DISTRICT, MEMPHIS, TENNESSEE, COVERING THE HIRE OF A DREDGE.
BECAUSE A FACTOR OF NOT LESS THAN 1.3 WAS REQUIRED BETWEEN THE CROSS
SECTIONAL AREA OF THE SUCTION CUPS AND THE CROSS SECTIONAL AREA OF THE
PUMP DISCHARGE, PROTESTANT'S OFFER OF PIPES WHICH CALCULATED TO A FACTOR
OF 1.2656 WAS PROPERLY REJECTED. WHILE ROUNDING OFF FIGURES MAY BE A
PLAUSIBLE ACTION ORDINARILY, WHERE THE FIGURE IS DESIGNATED AS A MINIMUM
RATIO FACTOR, SUCH REQUIREMENT MUST BE MET IN ORDER FOR AN OFFER TO BE
RESPONSIVE.
TO DANN, BLACKBURN & SMITH:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 16, 1971, WITH ENCLOSURES,
PROTESTING ON BEHALF OF CARTER CONSTRUCTION CO., INC. (CARTER), AGAINST
THE REJECTION OF YOUR CLIENT'S LOW BID UNDER INVITATION FOR BIDS (IFB)
DACW66-71-B-0108, ISSUED BY THE ARMY ENGINEER DISTRICT, MEMPHIS,
TENNESSEE.
THE IFB COVERED THE HIRE OF A DREDGE. PARAGRAPH 2.2 OF THE TECHNICAL
PROVISIONS OF THE IFB, AFTER ADVISING OF CERTAIN REQUIREMENTS, WENT ON
TO STATE:
" *** THE FOREGOING ARE MINIMUM REQUIREMENTS FOR A DREDGE HAVING A
14-INCH DIAMETER DISCHARGE. DREDGES EQUIPPED WITH LARGER PUMPS AND
DISCHARGES SHALL HAVE THE CROSS SECTIONAL AREA OF THE SUCTION PIPE
GREATER THAN THE CROSS SECTIONAL AREA OF THE PUMP DISCHARGE BY A FACTOR
OF NOT LESS THAN 1.3. *** "
THE BID FORM SUBMITTED BY CARTER STATED THAT THE DREDGE PUMP BEING
OFFERED HAD A SUCTION PIPE DIAMETER OF 18 INCHES AND A DISCHARGE PIPE
DIAMETER OF 16 INCHES. THE RELATIVE AREAS OF THESE PIPES COMPUTE, BY
YOUR OWN CALCULATIONS, TO A FACTOR OF 1.2656. SINCE THE CONTRACTING
OFFICER WAS OF THE OPINION THAT THE 1.3 CRITERION WAS A MATERIAL
REQUIREMENT BECAUSE OF THE CONDITIONS AT THE WORK SITE, AND SINCE THE
CARTER BID, ON ITS FACE, DEVIATED FROM THAT REQUIREMENT, THE BID WAS
REJECTED AS NONRESPONSIVE.
SUBSEQUENT TO THE RECEIPT OF NOTICE THAT ITS BID HAD BEEN REJECTED,
CARTER HAD ACTUAL MEASUREMENTS TAKEN OF THE SUCTION AND DISCHARGE PIPES
OF THE DREDGE PUMP. AS A RESULT OF THOSE MEASUREMENTS, IT DETERMINED
THAT THE ACTUAL DIAMETER OF THE SUCTION PIPE WAS 18.5 INCHES WHICH
RESULTS IN A FAVORABLE FACTOR OF 1.336, ACCORDING TO THE ADMINISTRATIVE
REPORT ON THIS MATTER. CARTER CONTENDS THAT ITS BID SHOULD NOT HAVE
BEEN REJECTED BECAUSE THE DREDGE DID, IN FACT, MEET THE STATED FACTOR,
AND THAT THE FACTOR WHICH WAS DERIVED FROM THE DIAMETER FIGURES SHOWN ON
ITS BID FORM SHOULD HAVE BEEN ROUNDED OFF TO 1.3. WE DO NOT AGREE.
WE ARE ENCLOSING PORTIONS OF THE FILE SUBMITTED BY THE CORPS OF
ENGINEERS. THESE DOCUMENTS ESTABLISH THE BASIS FOR REQUIRING A MINIMUM
RATIO FACTOR OF 1.3. WHILE THE CORPS RECOGNIZES THAT ROUNDING OFF MAY
BE A PLAUSIBLE ACTION ORDINARILY, IT MAINTAINS THAT A DIFFERENT
SITUATION IS PRESENT HERE SINCE THE SPECIFICATION PRESCRIBES A MINIMUM
RATIO FACTOR. IN VIEW OF THE FOREGOING AND THE WORDING OF THE
SPECIFICATION, IT DOES NOT APPEAR THAT THE MINIMUM RATIO REQUIREMENT
WOULD BE SATISFIED IF A ROUNDING OFF PROCESS WAS EMPLOYED.
IT HAS BEEN OUR POSITION THAT THE RESPONSIVENESS OF A BID MUST BE
JUDGED FROM THE INFORMATION CONTAINED IN THE BID ITSELF AND THAT A
NONRESPONSIVE BID CANNOT BE MADE RESPONSIVE AFTER BID OPENING. SEE 38
COMP. GEN. 819 (1959); 49 ID. 749 (1970). HERE, THE NONRESPONSIVENESS
OF THE CARTER BID IS CLEAR ON ITS FACE, GIVEN THE PIPE DIAMETERS STATED
THEREIN. ALTHOUGH THE DREDGE PUMP MAY MEET THE REQUIREMENTS OF THE IFB,
THAT ASSURANCE IS NOT REFLECTED IN THE CARTER BID. NO BASIS EXISTS THEN
FOR OUR OFFICE TO RAISE A LEGAL OBJECTION TO THE DETERMINATION OF THE
CONTRACTING OFFICER THAT YOUR CLIENT WAS A NONRESPONSIVE BIDDER.
MOREOVER, IN CONSONANCE WITH THE FOREGOING PRINCIPLES, INFORMATION AS TO
THE TRUE DIAMETER OF THE PUMP'S SUCTION PIPE OBTAINED SUBSEQUENT TO BID
OPENING CANNOT BE USED TO CURE THE INITIAL NONRESPONSIVENESS OF THE
CARTER BID.
ACCORDINGLY, THE PROTEST IS DENIED.
B-173388, JUL 26, 1971
BACK PAY - RESIGNATION FROM SERVICE
DECISION REAFFIRMING DENIAL BY CLAIMS DIVISION OF CLAIM OF MILTON
KARCHIN FOR ADDITIONAL COMPENSATION DUE FOR (1) PERFORMING GS-4 DUTIES
WHILE IN A GS-3 POSITION; (2) PERIOD OF UNEMPLOYMENT FOLLOWING
RESIGNATION FROM THE VETERANS ADMINISTRATION; (3) PAY DIFFERENTIAL FOR
LESSENED EARNINGS OUTSIDE GOVERNMENT SERVICE.
GOVERNMENT EMPLOYEES ARE ENTITLED ONLY TO THE SALARY OF THE POSITION
TO WHICH THEY ARE APPOINTED REGARDLESS OF DUTIES PERFORMED. UNLESS
CLAIMANT IS REINSTATED OR RESTORED TO DUTY, THERE IS NO AUTHORITY BY
WHICH COMPENSATION MAY BE GRANTED FOR THE PERIOD OF UNEMPLOYMENT OR THE
PAY DIFFERENTIAL.
TO MILTON KARCHIN:
THIS WILL REFER TO YOUR LETTERS OF JUNE 6 AND 10, 1971, REQUESTING A
RECONSIDERATION OF THE DENIAL OF YOUR CLAIM BY OUR CLAIMS DIVISION.
THE RECORD INDICATES THAT YOUR CLAIM IS FOR ADDITIONAL COMPENSATION
DUE FOR (1) PERFORMING THE DUTIES OF A GS-4 POSITION WHILE HOLDING AN
APPOINTMENT IN GS-3, (2) FOR COMPENSATION DURING A PERIOD OF
UNEMPLOYMENT OCCURRING AFTER YOUR RESIGNATION FROM THE VETERANS
ADMINISTRATION IN CLEVELAND, AND (3) FOR PAY DIFFERENTIALS WHILE YOU
WERE EMPLOYED IN A TEMPORARY POSITION OUTSIDE THE GOVERNMENT EARNING
LESS THAN HAD YOU CONTINUED IN GOVERNMENT SERVICE.
YOUR LETTERS OF APPEAL HAVE NOT PROVIDED ANY ADDITIONAL RELEVANT
FACTS THAT REQUIRE DISCUSSION AT THIS TIME SINCE THE CIRCUMSTANCES
UNDERLYING YOUR CLAIM WERE FULLY STATED IN THE SETTLEMENT CERTIFICATE OF
MAY 25, 1971. YOU HAVE DIRECTED OUR ATTENTION TO THE "WILFUL AND
FLAGRANT VIOLATIONS OF CSC (CIVIL SERVICE COMMISSION) REGULATIONS" THAT
OCCURRED INCIDENT TO THE DENIAL OF YOUR PROMOTION. IN THAT CONNECTION
WE WOULD POINT OUT THAT IT IS NO PART OF THE DUTY OR FUNCTION OF THE
GENERAL ACCOUNTING OFFICE TO REGULATE OR REVIEW THE POLICIES AND ACTIONS
OF OTHER AGENCIES OF THE GOVERNMENT RELATING TO THE PROMOTION PROGRAM
FOR EMPLOYEES OF SUCH OTHER AGENCIES. SUCH MATTERS ARE PRIMARILY FOR
DETERMINATION AND CONSIDERATION BY THE EMPLOYING AGENCY WITHIN THE
GENERAL GUIDELINES PRESCRIBED BY THE CIVIL SERVICE COMMISSION.
THE RECORD INDICATES THAT AT THE END OF YOUR DUTY PERIOD IN A TRAINEE
POSITION YOUR SUPERVISOR DECLINED TO OFFER YOU THE EXPECTED PROMOTION
BECAUSE HE DETERMINED THAT YOU HAD NOT SATISFACTORILY COMPLETED THE
TRAINING PERIOD. YOU PROTESTED THAT DECISION AND WERE GRANTED A HEARING
WHICH UPHELD THE DECISION OF YOUR SUPERVISOR. SOON AFTER THAT HEARING
YOUR SUPERVISOR APPARENTLY REASSIGNED YOU TO THE DUTIES YOU HAD
PERFORMED BEFORE UNDERTAKING THE TRAINING POSITION. THIS REASSIGNMENT
SEEMS TO BE CONSISTENT WITH INSTRUCTIONS CONTAINED IN THE FEDERAL
PERSONNEL MANUAL, CHAPTER 335, SUBCHAPTER 4-2B(4), WHICH PROVIDES IN
PART THAT: "A TRAINEE WHO DOES NOT SATISFACTORILY COMPLETE THE TRAINING
PERIOD IS REASSIGNED TO A DIFFERENT LINE OF WORK OR OTHERWISE REMOVED
FROM THE POSITION." COMPARE WITH B-147079, SEPTEMBER 28, 1961, COPY
ENCLOSED. WHILE YOUR APPEAL FROM THE FINDINGS OF THE HEARING, REFERRED
TO ABOVE, WAS PENDING YOU RESIGNED FROM GOVERNMENT EMPLOYMENT, AND
CONSEQUENTLY THE APPEAL WAS ABANDONED BEFORE A FINAL OPINION COULD BE
RENDERED ON THE MERITS OF YOUR COMPLAINT.
IT IS WELL-SETTLED LAW THAT GOVERNMENT EMPLOYEES ARE ENTITLED ONLY TO
THE SALARY OF POSITION TO WHICH THEY ARE APPOINTED, REGARDLESS OF THE
DUTIES THEY ACTUALLY PERFORM. GANSE V UNITED STATES, 180 CT. CL. 183
(1967). SINCE YOU WERE NEVER APPOINTED TO A GS-4 POSITION, THERE IS NO
BASIS FOR ESTABLISHING YOUR ENTITLEMENT TO COMPENSATION AT A GS-4 LEVEL
FOR ANY OF THE TIME PERIODS IN QUESTION.
AS STATED IN OUR SETTLEMENT CERTIFICATE OF MAY 25, 1971, YOUR CLAIM
FOR COMPENSATION WHILE YOU WERE UNEMPLOYED AND TEMPORARILY EMPLOYED IN
PRIVATE INDUSTRY AFTER LEAVING THE VETERANS ADMINISTRATION WOULD BE
ALLOWABLE IF AT ALL UNDER THE BACK PAY ACT OF 1966, CODIFIED AS 5 U.S.C.
5596. AN AWARD UNDER THAT LAW HOWEVER IS CONDITIONED UPON THE
CORRECTION OF AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WHICH HAS
BEEN ESTABLISHED BY AN APPROPRIATE ADMINISTRATIVE PROCESS. IN THE
ABSENCE OF YOUR REINSTATEMENT OR RESTORATION TO DUTY BY AN APPROPRIATE
AUTHORITY UNDER APPLICABLE LAW OR REGULATION, THERE IS NO AUTHORITY IN
LAW FOR THE PAYMENT TO YOU OF ANY BACK PAY. SEE B-169753, JUNE 29,
1970, COPY ENCLOSED.
IN VIEW OF THE FOREGOING APPLICABLE PROVISIONS OF LAW, THE
DISALLOWANCE OF YOUR CLAIM MUST BE SUSTAINED.
B-172578, JUL 22, 1971
BID PROTEST - MISTAKE IN BID
DENIAL OF PROTEST ON BEHALF TWIN CITY CONSTRUCTION COMPANY AGAINST
AWARD OF A CONTRACT TO CHRIS BERG. INC., UNDER AN IFB ISSUED BY THE U.S.
ARMY ENGINEER DIVISION, HUNTSVILLE, ALABAMA, FOR THE CONSTRUCTION OF
SAFEGUARD BALLISTIC MISSILE DEFENSE SYSTEM NONTECHNICAL SUPPORT
FACILITIES. PROTESTANT CONTENDS THAT IT WAS ERRONEOUS FOR THE
CONTRACTING AGENCY TO ALLOW THE LOW BIDDER TO CORRECT A MISTAKE IN THE
BID.
ASPR 2-406.3(A)(3) PROVIDES THAT A MISTAKE IN BID MAY BE CORRECTED
WHERE THERE IS CLEAR AND CONVINCING EVIDENCE AS TO THE EXISTENCE OF A
MISTAKE, AND THE ACTUAL, INTENDED BID. THE AUTHORITY TO CORRECT SUCH
MISTAKES IS VESTED IN THE PROCURING ACTIVITY BY ASPR 2-406.3(B)(1), AND
THE WEIGHT TO BE GIVEN THE EVIDENCE IS A QUESTION TO BE DECIDED BY THE
ADMINISTRATIVELY DESIGNATED EVALUATOR. THE COMP. GEN. FEELS THAT THE
RECORD HERE SUPPORTS THE DETERMINATION OF THE CONTRACTING AGENCY.
TO MR. MILLARD F. OTTMAN, JR.:
REFERENCE IS MADE TO YOUR LETTERS OF APRIL 14 AND 30, 1971,
PROTESTING ON BEHALF OF THE TWIN CITY CONSTRUCTION COMPANY, FARGO, NORTH
DAKOTA, AGAINST THE AWARD OF A CONTRACT TO CHRIS BERG, INC., UNDER
INVITATION FOR BIDS NO. DACA87-71-B-0030, ISSUED BY THE UNITED STATES
ARMY ENGINEER DIVISION, HUNTSVILLE, ALABAMA.
THE INVITATION WAS ISSUED ON FEBRUARY 10, 1971, SOLICITING BIDS FOR
CONSTRUCTION OF SAFEGUARD BALLISTIC MISSILE DEFENSE SYSTEM NONTECHNICAL
SUPPORT FACILITIES IN THE VICINITY OF GRAND FORKS, NORTH DAKOTA. BIDS
WERE OPENED AT 11 A.M. ON MARCH 23, 1971. THE BIDS RECEIVED WERE AS
FOLLOWS:
CHRIS BERG, INC. $7,445,200
TWIN CITY CONSTRUCTION COMPANY 8,029,839
BURGESS CONSTRUCTION CO. 8,284,000
THE WERTZ COMPANY, INC. 8,334,000
ALLEN M. CAMPBELL COMPANY 8,809,200
ORVILLE E. MADSEN & SON, INC. 9,266,000
MORRISON-KNUDSEN COMPANY, INC. 9,617,000
THE GOVERNMENT ESTIMATE FOR THE PROJECT WAS $7,966,542.
BY LETTER OF MARCH 23, 1971, HAND-DELIVERED THAT DAY, THE LOW BIDDER
ALLEGED A MISTAKE INVOLVING OMISSION FROM THE BID OF THE AMOUNT OF
$283,107 DUE TO THE INADVERTENT FAILURE TO INCLUDE IN THE FINAL BID
PRICE TWO SUBCONTRACTOR QUOTE ADJUSTMENTS. AFTER CONSIDERATION OF THE
ALLEGED ERROR, THE DOCUMENTARY EVIDENCE SUBMITTED IN SUPPORT THEREOF,
AND THE REQUEST FOR CORRECTION OF THE BID, THE GENERAL COUNSEL, OFFICE
OF THE CHIEF OF ENGINEERS, PURSUANT TO AUTHORITY DELEGATED UNDER
PARAGRAPH 2-406.3(B)(1) OF THE ARMED SERVICES PROCUREMENT REGULATION
(ASPR), MADE A DETERMINATION AND FINDINGS READING IN PERTINENT PART AS
FOLLOWS:
"A. PRIOR TO COMING TO GRAND FORKS FOR THE BID OPENING, THE BIDDER
HAD PREPARED A BLANKET ESTIMATE TO ENABLE IT TO 'PLUG IN' FIGURES LATER.
THUS, WHILE STILL AT ITS HOME OFFICE IN SEATTLE, THE BIDDER ESTIMATED
EITHER PRELIMINARY BUDGET FIGURES OR TENTATIVELY USED THE PRELIMINARY
SUBBIDS RECEIVED FROM SUBCONTRACTORS AND THEN LATER 'PLUGGED IN' THE
ACTUAL FIGURES. MARKUP FOR OVERHEAD AND PROFIT WERE DETERMINED EARLIER
AND WERE NOT AFFECTED BY SUBSEQUENT REFIGURING OF THE REST OF THE BID.
"B. ON THE NIGHT BEFORE THE BID OPENING, SUBBIDS AND REVISIONS WERE
BEING RECEIVED UNTIL LATE AT NIGHT. FOR THE MECHANICAL WORK, A
REPRESENTATIVE OF DETWEILER CAME IN AROUND 9:00 P.M. IN THE EVENING AND
LEFT AN ESTIMATE. HOWEVER, THIS ESTIMATE INCLUDED PRICES FOR ONLY ABOUT
20% OF HIS BID. DETWEILER ADVISED THAT HE WOULD RETURN LATER WITH THE
REMAINDER OF THE PRICES. AT 11:00 P.M., MR. DETWEILER RETURNED AND
FILLED IN THE REMAINING FIGURES IN PENCIL ON HIS BID FORM. THE ESTIMATE
FOR THE BIDDER NEVER SUBSTITUTED THE SUBBID AND USED INSTEAD THE BUDGET
ESTIMATE FIGURES. ON THE MORNING OF THE BID OPENING, DETWEILER REDUCED
HIS BID BY $75,000 AND THIS AMOUNT WAS DEDUCTED FROM THE ERRONEOUS BID.
THE TOTAL SUBBID SUBMITTED BY DETWEILER AMOUNTED TO $1,622,460 AND THE
AMOUNT USED BY THE BIDDER WAS $1,455,637. SUBTRACTING THE $75,000 FROM
THESE AMOUNTS CHANGES THE TOTAL MECHANICAL BID ACTUALLY SUBMITTED TO
$1,380,637 AND THE REDUCED AMOUNT OF THE SUBBID TO $1,547,460. THE
TOTAL OMISSION AMOUNTS TO $166,823.
"C. ON 16 MARCH 1971, A PRELIMINARY MASONRY SUBBID WAS SUBMITTED BY
INTER-STATE MASONRY CONSTRUCTION, INC., TO THE BIDDER IN THE AMOUNT OF
$370,000. BY TELEPHONE, ON 22 MARCH 1971, INTER-STATE INCREASED HIS
OVERALL BID BY 10%. THIS CHANGE WAS NOTED AND THESE FIGURES WERE
ACTUALLY USED. THE NIGHT BEFORE BID OPENING, INTER-STATE BORROWED PLANS
AND SPECIFICATIONS FROM THE BIDDER TO RECHECK ITS FIGURES. IN THE
COURSE OF ITS REVIEW, INTER-STATE DISCOVERED IT HAD OVERLOOKED SOME
ADDENDA IN PREPARING ITS EARLIER SUBBID WHICH INCREASED THE AMOUNTS
SUBMITTED. INTER-STATE REVISED ITS BID AND HANDED IN A CHANGED SUBBID
OF $523,214. HOWEVER, THE BIDDER ASSUMED THIS WAS MERELY A CONFIRMATION
OF THE EARLIER SUBBID, AND DID NOT INCLUDE THE INCREASED SUBBID IN ITS
BID SUBMITTED TO THE GOVERNMENT.
"D. THE TOTAL AMOUNT OF THE OMISSIONS IS $283,037 RATHER THAN THE
$283,107 CLAIMED BY THE BIDDER. THIS ERROR IN ADDITION WAS DISCOVERED
IN THE COURSE OF CHECKING THE CONTRACTOR'S FIGURES.
"5. THE BIDDER HAS SUBMITTED ITS DETAILED WORK SHEETS, AND SWORN
STATEMENTS FROM THE BIDDER'S PRESIDENT AND THE SUBBIDDERS INVOLVED IN
SUPPORT OF ITS ALLEGATIONS.
DETERMINATION & FINDING
"1. AFTER EXAMINATION OF ALL THE EVIDENCE, I FIND THAT (A) CHRIS
BERG, INC., HAS ALLEGED THAT IT MADE A MISTAKE IN ITS BID UNDER IFB DACA
87-71-B-0030; (B) THE EXISTENCE OF THE MISTAKE HAS BEEN SHOWN BY CLEAR
AND CONVINCING EVIDENCE; AND (C) THE INTENDED BID HAS BEEN SHOWN BY
CLEAR AND CONVINCING EVIDENCE.
"2. BASED ON THE ABOVE AND PURSUANT TO THE AUTHORITY VESTED IN ME BY
ASPR 2-406.3(B)(1), AUTHORITY IS HEREBY GRANTED TO THE CONTRACTING
OFFICER TO PERMIT CHRIS BERG, INC., TO INCREASE ITS BID FROM
$7,445,200.00 TO $7,728,237.00."
OUR OFFICE HAS HELD THAT, TO PERMIT CORRECTION OF AN ERROR IN BID
PRIOR TO AWARD, A BIDDER MUST SUBMIT CLEAR AND CONVINCING EVIDENCE THAT
AN ERROR HAS BEEN MADE, THE MANNER IN WHICH THE ERROR OCCURRED, AND THE
INTENDED BID PRICE. SEE 49 COMP. GEN. 480, 482 (1970). THE SAME BASIC
REQUIREMENTS FOR THE CORRECTION OF A BID ARE FOUND IN ASPR 2-406.3(A)(3)
WHICH PROVIDES:
"WHERE A 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; *** "
WHILE YOU CONCEDE, ARGUENDO, THAT THE EVIDENCE IN THIS CASE
CORROBORATES THE EXISTENCE OF A MISTAKE IN BID BY CHRIS BERG, YOU
CONTEND THAT THE AMOUNT OF CHRIS BERG'S INTENDED BID WAS NOT ESTABLISHED
BY CLEAR AND CONVINCING EVIDENCE AND, THEREFORE, IT WAS AN ERROR FOR THE
CORRECTION TO HAVE BEEN ALLOWED. THEREFORE, YOU CONTEND THAT CHRIS BERG
SHOULD HAVE BEEN ALLOWED TO WITHDRAW THE BID RATHER THAN TO CORRECT IT.
HOWEVER, THE AUTHORITY TO CORRECT MISTAKES ALLEGED AFTER BID OPENING BUT
PRIOR TO AWARD IS VESTED IN THE PROCURING AGENCY BY ASPR 2-406.3(B)(1)
AND THE WEIGHT TO BE GIVEN THE EVIDENCE IN SUPPORT OF AN ALLEGED MISTAKE
IS A QUESTION OF FACT TO BE CONSIDERED BY THE ADMINISTRATIVELY
DESIGNATED EVALUATOR OF THE EVIDENCE. 41 COMP. GEN. 160, 163 (1961).
UNDER THE CIRCUMSTANCES OF THIS CASE AND THE RECORD BEFORE US, WE
BELIEVE THAT THE DETERMINATION TO CORRECT IS SUPPORTED BY SUFFICIENT
EVIDENCE OF THE ERROR AND THE INTENDED BID.
ACCORDINGLY, THE PROTEST IS DENIED.
B-172584, JUL 22, 1971
BID PROTEST - BIDDER RESPONSIVENESS - FAILURE TO BID ON AN ITEM
DECISION DENYING PROTEST OF WESTERN GEAR CORPORATION AGAINST THE
AWARD OF A CONTRACT TO NORTHERN LINE MACHINE AND ENGINEERING CO. UNDER
IFB ISSUED BY THE NAVAL RESEARCH LABORATORY FOR A DEEP SEA AND
INTERMEDIATE WINCH SYSTEM FOR OCEANOGRAPHIC VESSELS.
ALTHOUGH NORTHERN FAILED TO BID ON LINE ITEM 8, WHICH WAS FOR
SERVICES BY A QUALIFIED TECHNICAL REPRESENTATIVE FOR A PERIOD OF ONE
YEAR FROM DATE OF DELIVERY, THE BID WAS NOT NONRESPONSIVE CONSIDERING
THE FACT THAT THE AMENDED INVITATION RESERVED THE RIGHT TO THE
GOVERNMENT TO MAKE AN AWARD ON AN ITEM BASIS.
FURTHER, THE FACT THAT NORTHERN'S FAILURE TO BID BECAUSE IT
CONSIDERED ITEM 8 AS "DELIVERABLE", BUT NOT A "PRICED" ITEM, DID NOT
PREJUDICE OTHER BIDDERS.
TO WESTERN GEAR CORPORATION
REFERENCE IS MADE TO YOUR LETTER DATED JUNE 10, 1971, AND PRIOR
CORRESPONDENCE, PROTESTING THE PROPOSED AWARD OF A CONTRACT TO NORTHERN
LINE MACHINE AND ENGINEERING CO., A DIVISION OF TACOMA BOATBUILDING CO.,
INC., UNDER INVITATION FOR BIDS (IFB) NO. N00173-71-B-0007, ISSUED BY
THE NAVAL RESEARCH LABORATORY, WASHINGTON, D.C.
THE IFB IS THE SECOND STEP OF A TWO-STEP PROCUREMENT FOR A DEEP SEA
AND INTERMEDIATE WINCH SYSTEM FOR AN OCEANOGRAPHIC VESSEL. THE
PROCUREMENT DESIGNATED "LOT I" IN THE IFB IS DIVIDED INTO 13 DIFFERENT
LINE ITEMS COVERING THE EQUIPMENT, TECHNICAL MANUALS, TECHNICAL
SERVICES, AND DELIVERY CHARGES. TACOMA BOATBUILDING BID ON 12 LINE
ITEMS. IT DID NOT BID ON ITEM 8 DESCRIBED AS "TECHNICAL SERVICES FOR
SEA TRIALS AND NRL TESTS-RATE/MAN DAY (EXCLUSIVE OF TRANSPORTATION)."
THE BIDS ON ITEM 8 RECEIVED FROM THE OTHER BIDDERS WERE $175 AND $191 A
MAN-DAY. ON THE BASIS OF THE TOTAL OF THE PRICES FOR THE ITEMS IT BID
UPON, TACOMA BOATBUILDING IS THE LOW BIDDER.
PARAGRAPH 1 OF SECTION IX-1 (REVISED) OF THE SPECIFICATIONS PROVIDES
THAT THE CONTRACTOR SHALL PROVIDE FOR 30 DAYS ON-SITE TECHNICAL SERVICES
THAT ARE TO BE PROVIDED AT NO ADDITIONAL COST TO THE GOVERNMENT. WITH
RESPECT TO SERVICES FOR TIME IN EXCESS OF THE FOREGOING, PARAGRAPH 2 OF
THE AFORESAID SECTION STATES:
"2. ITEM 8
SERVICES FOR ANY TIME IN EXCESS OF THE GENERAL TECHNICAL SERVICES
DESCRIBED ABOVE SHALL BE A DELIVERABLE ITEM (ITEM 8) MEETING THE
FOLLOWING SPECIFICATIONS:
A. CONTRACTOR SHALL MAKE AVAILABLE THE SERVICES OF A QUALIFIED
TECHNICAL REPRESENTATIVE FOR EITHER SHIPYARD, DOCKSIDE OR AT-SEA
CONSULTATION FOR A PERIOD OF ONE (1) YEAR FROM DATE OF DELIVERY.
B. CONTRACTOR SHALL PROVIDE THESE SERVICES WITHIN 48 HOURS OF
NOTIFICATION BY AN AUTHORIZED GOVERNMENT REPRESENTATIVE.
C. IF TECHNICAL SERVICES ARE NEEDED, THE CONTRACTOR SHALL FURNISH
TRANSPORTATION TO HIS REPRESENTATIVE AT A RATE NOT TO EXCEED COMMERCIAL
TOURIST CLASS AIRFARE. TRANSPORTATION COST SHALL BE PREPAID BY THE
CONTRACTOR AND ADDED AS A SEPARATE ITEM TO THE CONTRACTOR'S INVOICE.
D. THE CONTRACTOR SHALL BE RESPONSIBLE FOR ALL OTHER COSTS INCURRED
IN PROVIDING THE SERVICES CALLED FOR UNDER ITEM 8."
FURTHER, FOLLOWING THE LIST OF ITEMS UNDER "LOT I" IN THE FIRST-STEP
REQUEST FOR TECHNICAL PROPOSALS THERE APPEARS THE STATEMENT:
"THE GOVERNMENT ANTICIPATES AWARD OF A SINGLE LOT TO ONE BIDDER.
BIDDERS SHALL BID ON ALL ITEMS. FAILURE TO BID ON ALL ITEMS IN STEP 2
WILL RESULT IN A BID BEING REJECTED AS NONRESPONSIVE."
IT IS YOUR CONTENTION THAT, IN THE CIRCUMSTANCES, THE FAILURE OF
TACOMA TO BID ON ITEM 8 CONSTITUTES AN OMISSION WHICH RENDERS ITS BID
NONRESPONSIVE AND REQUIRES IT TO BE REJECTED.
THE ABOVE-QUOTED PROVISION IN STEP I WAS MODIFIED BY AMENDMENT 0001
TO STEP II, ISSUED ON JANUARY 29, 1971. AMENDMENT 0001 STATED THAT
AWARD WOULD GENERALLY BE MADE TO A SINGLE BIDDER ON EACH LOT, BUT THAT
THE GOVERNMENT RESERVED THE RIGHT TO AWARD ON AN ITEM BASIS. UNDER
AMENDMENT 0001, THE GOVERNMENT COULD MAKE AN AWARD WITHOUT INCLUDING
ITEM 8, UNLESS THE BIDDER HAD MADE AN ALL-OR-NONE BID. IF THE AWARD DID
NOT INCLUDE ITEM 8, A BID COULD NOT BE DECLARED NONRESPONSIVE FOR
FAILURE TO PRICE THAT ITEM.
NORTHERN LINE CONTENDS THAT IT INCLUDED THE PRICE OF TIME 8 (EXCEPT
FOR TRANSPORTATION) IN ITS BID PRICES FOR THE OTHER ITEMS. ITS POSITION
IS THAT THIS WAS REQUIRED UNDER ITS INTERPRETATION OF PARAGRAPHS 1 AND 2
OF SECTION IX-1 (REVISED) OF THE SPECIFICATIONS. PARAGRAPH 2, WHICH
DEALS WITH ITEM 8, STATES THAT ITEM 8 SHALL BE A "DELIVERABLE" ITEM, NOT
THAT IT SHALL BE PRICED. SUBPARAGRAPH "C" STATES THAT THE CONTRACTOR
WILL BE PAID FOR TRANSPORTATION INCURRED IN FURNISHING THE SERVICES
CALLED FOR UNDER ITEM 8, AND SUBPARAGRAPH "D" STATES THAT THE CONTRACTOR
SHALL BE RESPONSIBLE FOR ALL OTHER COSTS INCURRED IN PROVIDING SERVICES
UNDER ITEM 8. A FAIR READING OF PARAGRAPHS 1 AND 2, WITHOUT CONSIDERING
THE LISTING OF ITEM 8 ON THE SCHEDULE, LEADS TO THE CONCLUSION THAT THE
COST OF FURNISHING THE TECHNICAL SERVICES CALLED FOR UNDER BOTH
PARAGRAPHS IS FOR THE ACCOUNT OF THE CONTRACTOR, EXCEPT FOR
TRANSPORTATION COSTS FOR SERVICES IN EXCESS OF THE 30 DAYS CALLED FOR
UNDER PARAGRAPH 1. NORTHERN LINE CONTENDS IT SO READ THESE PARAGRAPHS,
AND WE BELIEVE THIS IS A REASONABLE POSITION, SINCE THE SOLICITATION
OTHERWISE WOULD BE AMBIGUOUS.
IN VIEW OF THE FACT THAT AWARD COULD BE MADE WITHOUT ITEM 8, AND THE
FURTHER FACT THAT WE CAN FIND NO PREJUDICE TO OTHER BIDDERS BECAUSE OF
NORTHERN LINE'S FAILURE TO QUOTE A MAN-DAY PRICE FOR ITEM 8, WE BELIEVE
IT IS PROPER TO ACCEPT NORTHERN LINE'S BID ON THE BASIS IT CLAIMS IT
INTENDED TO BID.
YOU CONTEND THAT THE AMENDMENTS OF THE SOLICITATION SHOULD NOT BE
CONSIDERED AS VALIDLY SIGNED BY MR. CLOONAN, THE BIDDER'S MANAGER, SINCE
HE IS A RETIRED REGULAR NAVAL OFFICER ACTING IN VIOLATION OF 18 U.S.C.
281. THAT STATUTE PROHIBITS ANY RETIRED OFFICER FROM REPRESENTING ANY
PERSON IN THE SALE OF ANYTHING TO THE GOVERNMENT THROUGH THE DEPARTMENT
IN WHOSE SERVICE HE HOLDS A RETIRED STATUS. QUESTIONS AS TO THE
INTERPRETATION AND APPLICATION OF THE FEDERAL CRIMINAL STATUTES, SUCH AS
18 U.S.C. 281, ARE NOT WITHIN THE JURISDICTION OF OUR OFFICE BUT ARE FOR
CONSIDERATION BY THE DEPARTMENT OF JUSTICE. FURTHER, APPARENTLY MR.
CLOONAN HAS NEITHER BEEN INDICTED, TRIED NOR CONVICTED OF HAVING
VIOLATED THE CRIMINAL STATUTE. IN THE CIRCUMSTANCES, THE PREMISE UPON
WHICH YOUR CONTENTION IS BASED IS NOT SUPPORTED BY THE RECORD.
YOU HAVE ALSO CONTENDED THAT TACOMA SHOULD NOT RECEIVE AN AWARD
BECAUSE IT HAS MISREPRESENTED ITSELF AS A SMALL BUSINESS CONCERN.
HOWEVER, THE SUBJECT PROCUREMENT IS NOT A SMALL BUSINESS SET-ASIDE AND
IT IS THEREFORE IMMATERIAL WHETHER TACOMA MISREPRESENTED ITSELF AS SMALL
BUSINESS, SINCE IT OBVIOUSLY HAD NOTHING TO GAIN BY SUCH A
REPRESENTATION.
YOU HAVE CONTENDED THAT TACOMA SHOULD NOT BE CONSIDERED A RESPONSIBLE
BIDDER BECAUSE IT HAS NOT PERFORMED SATISFACTORILY ON SUBCONTRACTS FOR
EQUIPMENT VIRTUALLY IDENTICAL TO THAT IN THE SUBJECT INVITATION. THE
CONTRACTING OFFICER HAS RESPONDED THAT NO INFORMATION OF UNSATISFACTORY
PERFORMANCE BY TACOMA IS KNOWN. YOU HAVE COUNTERED THAT DEFICIENCIES IN
THE EQUIPMENT WERE REPORTED TO THE OFFICE OF NAVAL RESEARCH IN SEPTEMBER
1970 AND THAT SUCH DEFICIENCIES PROMPTED TACOMA TO OFFER REVISED
SPECIFICATIONS FOR THE EQUIPMENT IN RESPONDING TO THE FIRST-STEP REQUEST
FOR TECHNICAL PROPOSALS. IF THERE WERE DEFICIENCIES IN THE EQUIPMENT,
YOU HAVE APPARENTLY RECOGNIZED THAT TACOMA HAS SOUGHT TO CORRECT THEM BY
AMENDING ITS SPECIFICATIONS. THUS, THE PRIOR DEFICIENCY WOULD NOT
APPEAR TO BE RELEVANT. IN ANY EVENT, THE CONTRACTING OFFICER HAS
INDICATED THAT A PREAWARD SURVEY WAS MADE AND HE IS SATISFIED THAT THE
BIDDER HAS THE CAPABILITY TO PRODUCE THE WINCH SYSTEM REQUIRED AND IS A
RESPONSIBLE BIDDER. FURTHER, WE HAVE HELD THAT QUESTIONS CONCERNING THE
QUALIFICATIONS OF A PROSPECTIVE CONTRACTOR ARE FOR RESOLUTION BY THE
ADMINISTRATIVE OFFICERS CONCERNED. SEE 49 COMP. GEN. 553 (1970).
MOREOVER, EVEN IF AN INVESTIGATION DISCLOSED THAT THE BIDDER HAS NOT
PERFORMED SATISFACTORILY IN THE PAST, THAT WOULD NOT REQUIRE A
DETERMINATION OF NONRESPONSIBILITY WITH RESPECT TO A LATER PROCUREMENT.
27 COMP. GEN. 621 (1948).
IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.
B-170731, JUL 21, 1971
BID PROTEST - NEGOTIATED CONTRACT - REVISING PROPOSAL
DECISION DISALLOWING PROTEST OF DCI-DESIGN CONSULTANTS AGAINST THE
NAVAL FACILITIES ENGINEERING COMMAND AWARD OF A NEGOTIATED FIXED-PRICE
CONTRACT TO LEADERSHIP HOUSING SYSTEMS, INC. FOR THE DESIGN AND
CONSTRUCTION OF 102 MILITARY HOUSING UNITS.
ALTHOUGH IT IS AGREED THAT THE RFP SHOULD HAVE INDICATED THE RELATIVE
IMPORTANCE OF THE EVALUATION CRITERIA AND THAT THE CONTRACTING OFFICER
SHOULD HAVE ALLOWED PROTESTANT AN OPPORTUNITY TO REVISE THEIR PROPOSAL,
IT CANNOT BE CONCLUDED THAT CANCELLATION OF THE CONTRACT WOULD BE
LEGALLY JUSTIFIED.
TO FLEETWOOD AND JOHNSON:
WE REFER TO YOUR LETTERS OF DECEMBER 9, 1970, JANUARY 7, AND MAY 18,
1971, PROTESTING ON BEHALF OF DCI-DESIGN CONSULTANTS AGAINST THE NAVAL
FACILITIES ENGINEERING COMMAND (NAVFAC), WASHINGTON, D.C., AWARD OF A
NEGOTIATED FIXED-PRICE CONTRACT ON JULY 24, 1970, TO LEADERSHIP HOUSING
SYSTEMS, INC., FOR THE DESIGN AND CONSTRUCTION OF 102 MILITARY FAMILY
HOUSING UNITS FOR THE MARINE CORPS BASE, CAMP PENDLETON, CALIFORNIA. WE
NOTE THAT YOUR SUBMISSIONS SUPPLEMENT THE PROTEST OF PRODEVCO, INC.,
DCI'S CO-VENTURER IN RESPONDING TO REQUEST FOR PROPOSALS
N62473-70-C-0029, FILED WITH OUR OFFICE BY LETTERS DATED AUGUST 31 AND
OCTOBER 26, 1970.
IN RESPONSE TO THE ADMINISTRATIVE REPORT FURNISHED OUR OFFICE BY THE
DEPUTY COMMANDER FOR FACILITIES ACQUISITION, NAVFAC, YOUR LETTER OF
JANUARY 7, 1971, RAISES A NUMBER OF CONTENTIONS IN SUPPORT OF THE
PROPOSITION THAT THE CONTRACT SHOULD BE CANCELED, OR, ALTERNATIVELY,
THAT DCI AND PRODEVCO SHOULD BE AWARDED BID PREPARATION COSTS.
AT THE OUTSET, WE AGREE WITH YOUR CONTENTION THAT THE REQUEST FOR
PROPOSALS SHOULD HAVE INDICATED THE RELATIVE IMPORTANCE OF THE
EVALUATION CRITERIA. SEE 50 COMP. GEN. 59 (1970) AND CASES CITED
THEREIN. WE ARE DRAWING THIS MATTER TO THE ATTENTION OF THE SECRETARY
OF THE NAVY FOR FUTURE CORRECTIVE ACTION.
WITH RESPECT TO THE ACTUAL EVALUATION OF PROPOSALS SUBMITTED IN
RESPONSE TO THE REQUEST FOR PROPOSALS, THERE IS A FACTUAL DISPUTE AS TO
WHAT EVALUATION FORMULA WAS USED. YOU STATE IN YOUR LETTER OF JANUARY
7, 1971, THAT A REPRESENTATIVE OF THE SAN DIEGO OFFICE OF NAVFAC
INDICATED THAT A 60 PERCENT WEIGHT WAS ACCORDED DESIGN QUALITY AND PRICE
WAS ASSIGNED A WEIGHT OF 40 PERCENT. WE HAVE INFORMALLY CONFIRMED WITH
NAVFAC, WASHINGTON, WHICH APPROVED THE AWARD OF THE CONTRACT, THAT
EVALUATION WAS CONDUCTED IN ACCORDANCE WITH THE GUIDANCE CONTAINED IN A
MEMORANDUM DATED FEBRUARY 24, 1970, FROM THE DEPUTY ASSISTANT SECRETARY
OF DEFENSE (INSTALLATIONS AND HOUSING), ENTITLED "ONE-STEP TURNKEY
PROCEDURES FOR MILITARY FAMILY HOUSING PROJECTS." WITH RESPECT TO THE
RELATIONSHIP BETWEEN DESIGN QUALITY AND PRICE, THE GUIDANCE PROVIDES AS
FOLLOWS:
"COST - TECHNICAL EVALUATION TEAMS SHALL NOT CONSIDER COST. COST
WILL BE EVALUATED AFTER INITIAL TECHNICAL EVALUATIONS HAVE BEEN
COMPLETED. RANKING OF PROPOSALS WILL BE BASED ON QUALITY/COST RATIO THAT
REFLECTS THE RESULTS OF THE TECHNICAL EVALUATION AND COST. THIS RATIO
IS THE RESULTANT OF DIVIDING THE PROPOSER'S COST BY THE TOTAL TECHNICAL
EVALUATION POINTS RECEIVED BY THE PROPOSER (I.E., BID $ AMOUNT OVER
TECH. EVAL. PTS = $/POINT). THIS RELATIONSHIP SHOULD BE ESTABLISHED
PRIOR TO ENTERING INTO NEGOTIATIONS. RECOGNIZING THAT NEGOTIATIONS WILL
IN MOST INSTANCES RESULT IN A CHANGE IN PROPOSER'S TECHNICAL EVALUATION
SCORE AND HIS BID PRICE, IT IS ESSENTIAL THAT INITIAL RANKINGS BE
ADJUSTED BY RECOMPUTING THE RATIOS PRIOR TO ESTABLISHING A FINAL RANKING
OF PROPOSALS. THIS FINAL RANKING SHOULD BE CONSIDERED ONLY AS A
STATISTICAL INDICATOR. SOUND JUDGMENT MUST BE APPLIED TO INSURE THAT
COST AND ALL OTHER FACTORS ARE PROPERLY CONSIDERED IN MAKING AN AWARD IN
THE GOVERNMENT'S BEST INTERESTS. IT IS ESSENTIAL THAT THIS DECISION BE
PROPERLY DOCUMENTED."
UNDER THE CIRCUMSTANCES, WE MUST DEFER TO THE REPRESENTATIONS IN THE
DEPUTY COMMANDER'S LETTER OF OCTOBER 5, 1970, THAT IN CONSONANCE WITH
THE DEPARTMENT OF DEFENSE GUIDANCE, THE EVALUATION OF PROPOSALS YIELDED
THE FOLLOWING RESULTS:
DOLLAR PER POINT POINTS PRICE
"1. LEADERSHIP HOUSING SYSTEMS $315.9 7,053 $2,228,00
2. VIKING COMPANY $335.7 6,308 $2,117,058
3. PRODEVCO - PROPOSAL #4 $375.6 5,919 $2,222,937
4. PRODEVCO - PROPOSAL #1 $397.9 5,510 $2,187,980
5. C. E. WYLIE - P. H. LUSARDI $477.9 3,648 $1,743,256
THE LETTER FURTHER STATES THAT OF THE 14 PROPOSALS RECEIVED IN
RESPONSE TO THE SOLICITATION, THE PROPOSALS LISTED ABOVE WERE
"TECHNICALLY SUPERIOR," AND THAT OF THE LISTED PROPOSALS, THE PROPOSAL
OF C. E. WYLIE - P. H. LUSARDI WAS "DISTINCTLY INFERIOR" IN THE AREAS OF
DESIGN AND ENGINEERING. IN LIGHT OF THESE STATEMENTS, THERE APPEARS TO
BE A BASIS FOR CONCLUDING THAT PRODEVCO-DCI WAS WITHIN A COMPETITIVE
RANGE. ACCORDINGLY, WE BELIEVE THE CONTRACTING OFFICER SHOULD HAVE
AFFORDED YOUR FIRM AN OPPORTUNITY TO REVISE ITS PROPOSAL, PARTICULARLY
SINCE THE SOLICITATION FAILED TO IDENTIFY THE METHOD OF EVALUATION WITH
SPECIFICITY OR INDICATE THE RELATIVE IMPORTANCE OF THE VARIOUS FACTORS
USED IN THE EVALUATION.
WHILE THE DEPUTY COMMANDER'S LETTER SUGGESTS THAT ADEQUATE FUNDS
EXISTED FOR AN AWARD ON AN INITIAL PROPOSAL BASIS TO LEADERSHIP, THE
FACT REMAINS THAT "DISCUSSIONS" WITHIN THE MEANING OF 10 U.S.C. 2304(G)
WERE UNDERTAKEN WITH BOTH LEADERSHIP AND VIKING. WITH RESPECT TO THE
"DISCUSSIONS," IT IS NOT NECESSARY TO RESOLVE THE QUESTION YOU RAISE OF
WHETHER THE CEDAR SHINGLE ROOF ORIGINALLY OFFERED BY LEADERSHIP WAS
"RESPONSIVE" TO THE REQUEST FOR PROPOSALS, FOR AS YOU RECOGNIZE,
NEGOTIATION, UNLIKE FORMAL ADVERTISING, PERMITS THE CORRECTION OF
DEFICIENCIES IN PROPOSALS. B-171482, MARCH 17, 1971. LEADERSHIP WAS
REQUESTED TO INDICATE WHAT EFFECT A SUBSTITUTION OF ASPHALT SHINGLES FOR
THE CEDAR SHINGLES INITIALLY OFFERED WOULD HAVE ON ITS PRICE; IT
RESPONDED WITH A PRICE REDUCTION IN AN AMOUNT OF $69,568. IN ADDITION,
CERTAIN OTHER REPORTEDLY "MINOR" ITEMS, NOT IN DISPUTE HERE, UNIQUE TO
THE VIKING AND LEADERSHIP PROPOSALS WERE DISCUSSED. THESE DISCUSSIONS
RESULTED IN LEADERSHIP FURTHER REDUCING ITS PRICE BY $16,670.
CONTRARY TO YOUR ASSERTION, THERE IS SOME MERIT IN THE DEPUTY
COMMANDER'S POSITION THAT THE RELATIVE STANDING OF THE OFFERS WOULD NOT
HAVE BEEN AFFECTED IF OTHER OFFERORS HAD BEEN PERMITTED TO MAKE
COMPARABLE ROOFING CHANGES. YOU SUGGEST THAT PRODEVCO-DCI SUFFERED
SUBSTANTIAL PREJUDICE BECAUSE THE AESTHETIC QUALITIES OF THE CEDAR
SHINGLES VIS-A-VIS THE TILE SHINGLES OFFERED BY PRODEVCO MADE A
SIGNIFICANT EVALUATIVE DIFFERENCE. WE DO NOT, HOWEVER, APPROACH THE
DEPUTY COMMANDER'S REPLY THAT SUCH SUBSTITUTION DID NOT RESULT IN A
REDUCTION OF THE QUALITY POINTS ASSIGNED THE LEADERSHIP PROPOSAL WITH
THE "INCREDULITY" THAT YOU DO. WE DO NOT FIND NAVFAC'S POSITION THAT
THE LONGER LIFE AND LOWER MAINTENANCE COSTS OF ASPHALT SHINGLES OFFSET
ANY AESTHETIC QUALITIES OF THE CEDAR SHINGLES ORIGINALLY OFFERED TO BE
UNREASONABLE.
NEVERTHELESS, WE BELIEVE THAT THE QUESTION OF THE IMPACT OF PROPOSAL
REVISIONS ON THE RELATIVE STANDING OF OFFERORS SHOULD NOT BE LEFT TO
SPECULATION. IN OUR VIEW, 10 U.S.C. 2304(G) REQUIRES THAT SUCH IMPACT
BE TESTED BY AFFORDING ALL OFFERORS WITHIN A COMPETITIVE RANGE AN
OPPORTUNITY TO SUBMIT REVISED PROPOSALS. 48 COMP. GEN. 663 (1969); 47
ID. 336 (1967); 50 ID. ___ (B-169148, OCTOBER 6, 1970); B-170181,
FEBRUARY 22, 1971.
WE HAVE CONSIDERED YOUR CONTENTIONS WITH RESPECT TO THE UTILITIES
DISTRIBUTION, GRADING, AND SIDEWALK REQUIREMENTS OF THE REQUEST FOR
PROPOSALS AND, IN OUR VIEW, THE DEPUTY COMMANDER'S DISPOSITION OF THESE
ISSUES IS CORRECT. MOREOVER, ON THE RECORD BEFORE US, THERE IS NO CLEAR
AND CONVINCING EVIDENCE THAT THE CONTRACTING OFFICER'S DETERMINATION
THAT LEADERSHIP WAS A RESPONSIBLE PROSPECTIVE CONTRACTOR IS SUBJECT TO
LEGAL QUESTION, 50 COMP. GEN. ___ (B-170388, OCTOBER 15, 1970), NOR CAN
WE QUESTION THE ADEQUACY OF THE PERFORMANCE BOND FURNISHED BY LEADERSHIP
ON THE GROUND THAT IT AUGMENTED ITS CORPORATE SURETY BOND WITH AN
ADDITIONAL BOND IN THE FORM OF A CERTIFIED CHECK.
WHILE WE ARE DRAWING THE DEFECTS NOTED ABOVE TO THE ATTENTION OF THE
SECRETARY OF THE NAVY TO INSURE THAT CORRECTIVE ACTION IS TAKEN TO AVOID
THEIR RECURRENCE, WE CANNOT CONCLUDE THAT CANCELLATION OF THE CONTRACT
WOULD BE LEGALLY JUSTIFIED, OR THAT THE CONTRACTING AGENCY'S CONDUCT OF
NEGOTIATIONS WAS SUCH THAT DCI-PRODEVCO WOULD BE ENTITLED TO RECOVER BID
PREPARATION COSTS. KECO INDUSTRIES, INC. V UNITED STATES, 428 F. 2D
1233 (CT. CL. 1970) AND CASES CITED THEREIN.
B-171736, JUL 21, 1971
BID PROTEST - SPECIFICATIONS - AMBIGUITY
AFFIRMING PRIOR DECISION DENYING PROTEST OF WOODARD RESEARCH
CORPORATION AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER AN IFB
ISSUED BY HEW, PHS, CENTER FOR DISEASE CONTROL, ATLANTA, GEORGIA.
INCLUSION OF PUBLIC LAW 89-544 IN THE INVITATION DID NOT CREATE AN
AMBIGUITY AS DEALERS IN ANIMALS, SUCH AS PROTESTANT, ARE PRESUMED TO BE
FAMILIAR WITH THIS LAW COVERING IMPORTATION OF ANIMALS. WHETHER PL
89-544 SHOULD BE INCLUDED IN FUTURE INVITATIONS IS A MATTER FOR THE
PROCURING AGENCY'S DETERMINATION IN LIGHT OF PARTICULAR CIRCUMSTANCES,
NOT TO BE COMMENTED ON IN ADVANCE BY THE COMP. GEN.
TO BURKHARDT, ARNAVAS & BARTL, ESQUIRES:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 24, 1971, ON BEHALF
OF WOODARD RESEARCH CORPORATION, REQUESTING RECONSIDERATION AND
MODIFICATION OF OUR DECISION OF JUNE 10, 1971, IN WHICH WE DENIED
WOODARD'S PROTEST AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER
INVITATION FOR BIDS NO. 14-71, ISSUED BY THE DEPARTMENT OF HEALTH,
EDUCATION, AND WELFARE, PUBLIC HEALTH SERVICE, CENTER FOR DISEASE
CONTROL, ATLANTA, GEORGIA.
THE REQUEST FOR RECONSIDERATION IS BASED UPON THE CONTENTION THAT IN
REACHING OUR DECISION WE DID NOT COMPLETELY AND PROPERLY CONSTRUE THE
EFFECT OF THE INCORPORATION OF PUBLIC LAW 89-544 IN THE SUBJECT
INVITATION. IT IS YOUR POSITION THAT INCLUSION OF PUBLIC LAW 89-544
CREATED AN AMBIGUITY WHICH MISLED WOODARD INTO THINKING THAT ITS
COMPETITORS WOULD BE EITHER MANDATORILY OR VOLUNTARILY LICENSED AS
"DEALERS" AS PROVIDED IN THE LAW AND, THEREFORE, COMPETING ON AN EQUAL
BASIS. SINCE WE DID NOT CONSTRUE INCORPORATION OF THE LAW AS REQUIRING
THE CONTRACTOR TO BE A LICENSED DEALER THEREUNDER, IT IS ARGUED THAT
WOODARD AS A LICENSED DEALER WAS AT A COMPETITIVE DISADVANTAGE IN THAT
IT WAS NOT ON NOTICE THAT A LARGER GROUP OF FIRMS WAS ELIGIBLE TO
COMPETE.
ALTHOUGH YOU DO NOT REQUEST THAT OUR DECISION BE MODIFIED TO THE
EXTENT THAT THE AWARD TO PRIMELABS BE DISTURBED, YOU DO ASK THAT IT BE
MODIFIED - APPARENTLY TO INDICATE THAT PUBLIC LAW 89-544 SHOULD NOT BE
INCORPORATED IN FUTURE INVITATIONS UNTIL CERTAIN AMENDMENTS BECOME
EFFECTIVE ON DECEMBER 24, 1971, OR, IN THE ALTERNATIVE, THAT WHERE IT IS
INCORPORATED PROSPECTIVE BIDDERS MUST COMPLY THEREWITH IN ORDER TO BE
ELIGIBLE TO BID AND RECEIVE AN AWARD.
AS INDICATED IN OUR DECISION OF JUNE 10, 1971, WE ARE UNABLE TO AGREE
WITH YOUR CONTENTION THAT INCORPORATION OF THE LAW SHOULD BE VIEWED
EITHER AS RENDERING THE INVITATION AMBIGUOUS OR AS REQUIRING AS A
CONDITION OF ELIGIBILITY THAT BIDDERS BE LICENSED DEALERS. WE DO NOT
VIEW THE MERE INCORPORATION OF THE LAW AS REQUIRING MORE THAN THE LAW
ITSELF, THAT IS, LICENSING OF DEALERS IN CATS AND DOGS. FURTHERMORE, WE
DO NOT VIEW ITS INCORPORATION AS CREATING AN AMBIGUITY SINCE DEALERS IN
ANIMALS, WHETHER CATS AND DOGS AND/OR NONHUMAN PRIMATES, ARE PRESUMABLY
FAMILIAR WITH THE REQUIREMENTS OF THE LAW. CERTAINLY, AS INDICATED IN
THE COVER LETTER SUBMITTING ITS BID, WOODARD WAS FAMILIAR WITH THE LAW.
THEREFORE, OUR DECISION OF JUNE 10, 1971, IS AFFIRMED.
WHETHER HEW, OR OTHER GOVERNMENT AGENCIES INCORPORATE, AND UNDER WHAT
TERMS, THE PROVISIONS OF PUBLIC LAW 89-544 IN SUBSEQUENT INVITATIONS IS
A MATTER FOR THEIR DETERMINATION IN LIGHT OF THE PARTICULAR
CIRCUMSTANCES OF THE PROCUREMENT INVOLVED. ACCORDINGLY, WE DO NOT
BELIEVE IT WOULD BE PROPER FOR OUR OFFICE TO STATE A POSITION ON A
HYPOTHETICAL BASIS AS TO THE VALIDITY OR EFFECT OF SUCH INCORPORATION.
B-172207, JUL 21, 1971
CIVILIAN EMPLOYEE - PER DIEM - AMENDMENT OF ORDERS
DECISION AUTHORIZING PAYMENT OF CLAIM OF JOHN E. SEYFRIED, EDWARD B.
WESTENDORF, JAMES L. MURRAY, AND JOHN X. TEUFEN FOR PER DIEM INCIDENT TO
THEIR ASSIGNMENT TO THE U.S. ARMY CHICAGO PROCUREMENT AGENCY. THESE
CLAIMS WERE PREVIOUSLY DISALLOWED BY CLAIMS DIVISION, GAO, ON JANUARY 14
AND 15, 1971 BECAUSE THE ASSIGNMENTS WERE TO HAVE BEEN PERMANENT.
THE QUESTION AS TO WHETHER A DUTY STATION IS TO BE PERMANENT OR
TEMPORARY IS NOT MERELY FOR ADMINISTRATIVE DETERMINATION, BUT IS A
QUESTION OF FACT TO BE DETERMINED FROM THE GIVEN SITUATION. 33 COMP.
GEN. 98 (1953). FROM THE RECORD, IT IS APPARENT THAT AT THE TIME OF THE
TRANSFERS CHICAGO WAS NOT CONTEMPLATED AS A PERMANENT DUTY STATION FOR
CLAIMANTS. THEREFORE, THE COMP. GEN. WOULD HAVE NO OBJECTION TO THE
TRAVEL ORDERS BEING AMENDED TO REFLECT CHICAGO AS A TEMPORARY DUTY
STATION WITH PAYMENT OF APPROPRIATE PER DIEM RATES.
TO MAJOR GENERAL ROBERT C. FORBES, USA:
THIS IS IN FURTHER REFERENCE TO YOUR LETTER OF MARCH 19, 1971,
REGARDING THE CLAIMS, NOS. Z-2432725, Z-2432726, AND Z-2432727, OF
MESSRS. JOHN E. SEYFRIED, EDWARD B. WESTENDORF, AND JAMES L. MURRAY FOR
PER DIEM INCIDENT TO THEIR ASSIGNMENTS TO THE UNITED STATES ARMY CHICAGO
PROCUREMENT AGENCY. THESE CLAIMS, AS WELL AS CLAIM NO. Z-2432724 OF MR.
JOHN X. TEUFEN, WERE DENIED BY OUR CLAIMS DIVISION SETTLEMENT LETTERS
DATED JANUARY 14 AND 15, 1971. INASMUCH AS MR. TEUFEN'S CLAIM FOR PER
DIEM, OF WHICH RECONSIDERATION HAS BEEN REQUESTED, ARISES OUT OF
CIRCUMSTANCES SIMILAR TO THOSE OF THE OTHER THREE CLAIMENTS, WE HAVE
CONSIDERED THE FOUR CLAIMS JOINTLY.
THE RECORD SHOWS THAT AS EMPLOYEES OF THE UNITED STATES ARMY
CINCINNATI PROCUREMENT AGENCY, CINCINNATI, OHIO, EACH CLAIMANT WAS
ADVISED OF THE CONTEMPLATED CLOSURE OF THAT ACTIVITY AND WAS OFFERED AND
ACCEPTED A TRANSFER TO THE UNITED STATES ARMY CHICAGO PROCUREMENT
AGENCY. MESSRS. SEYFRIED, MURRAY, AND TEUFEN, BY TRAVEL ORDERS DATED
JANUARY 22, 1970, AND MR. WESTENDORF, BY TRAVEL ORDER DATED FEBRUARY 13,
1970, WERE AUTHORIZED CHANGES OF PERMANENT STATION FROM CINCINNATI,
OHIO, TO CHICAGO, ILLINOIS, AND REIMBURSEMENT OF EXPENSES INCIDENT TO
THE TRANSFER PURSUANT TO THE PROVISIONS OF OFFICE OF MANAGEMENT AND
BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966, AS AMENDED. ALL
FOUR EMPLOYEES REPORTED FOR DUTY ON FEBRUARY 17, 1970.
SHORTLY AFTER THEIR ARRIVAL AT THE CHICAGO AGENCY, THE CLAIMANTS WERE
ADVISED BY LETTER FROM THE COMMANDING OFFICER, DATED MARCH 6, 1970, OF
THE ANNOUNCED CLOSURE OF THE CHICAGO AGENCY AND THE TRANSFER OF THE
FUNCTION BEING PERFORMED THERE TO THE SAN FRANCISCO AND NEW YORK
AGENCIES WITH ADVICE RELATIVE TO PLACEMENT AND RELOCATION OPPORTUNITIES
FOR THE EMPLOYEES.
THE RECORD FURTHER INDICATES THAT THE ANNOUNCED CLOSURE WAS TO BE
ACCOMPLISHED ON A THREE PART BASIS. LETTERS DATED MARCH 9, 1970, FROM
THE COMMANDING OFFICER AND ADDRESSED TO EACH OF THE INDIVIDUAL EMPLOYEES
STATED AS FOLLOWS:
"AS YOU KNOW, THE DEPARTMENT OF THE ARMY HAS ANNOUNCED THAT THE
CHICAGO PROCUREMENT AGENCY IS BEING CLOSED EFFECTIVE 11 DECEMBER 1970.
THIS CLOSURE WILL BE ACCOMPLISHED ON A PHASED BASIS WITH ONE-THIRD OF
THE WORKFORCE TO BE SEPARATED NO LATER THAN 29 JUNE 1970, ONE-THIRD NO
LATER THAN 30 SEPTEMBER 1970 AND THE REMAINING ONE-THIRD BY 11 DECEMBER
1970. *** "
BY LETTERS OF APRIL 6, 1970, ADDRESSED TO THE COMMANDING OFFICER EACH
OF WHICH IS PHRASED SUBSTANTIALLY THE SAME, MESSRS. SEYFRIED,
WESTENDORF, MURRAY, AND TEUFEN REPORTED THE ABOVE RELATED SEQUENCE OF
EVENTS AND STATED AS FOLLOWS:
"IN ACCORDANCE WITH MY ATTACHED TRAVEL ORDER *** AND JOINT TRAVEL
REGULATIONS (JTR), I TOOK ADVANTAGE OF THE 30 DAYS TEMPORARY QUARTERS IN
ORDER TO FIND PERMANENT QUARTERS FOR MY FAMILY, WHO WOULD FOLLOW SHORTLY
THEREAFTER. ON 6 MARCH 1970, SEVENTEEN CALENDAR DAYS AFTER REPORTING
FOR DUTY TO CHICAGO, I WAS 'ASTOUNDED' BY THE OFFICIAL ANNOUNCEMENT THAT
THE AGENCY WOULD CLOSE. I WAS NOTIFIED THAT FROM CHICAGO, I MAY HAVE
TRANSFER RIGHTS TO NEW YORK OR SAN FRANCISCO. ALSO, AN ATTEMPT WOULD BE
MADE TO HAVE ALL TRANSFERS EFFECTED BY JULY 1970.
"WHEN I ACCEPTED THE PCS TO CHICAGO, I NATURALLY ASSUMED THAT THE
TRANSFER WOULD BE OF A PERMANENT NATURE. HOWEVER, UNDER THE PRESENT
CONDITION I AM CONTINUING TO RESIDE IN TEMPORARY QUARTERS WHILE
MAINTAINING MY HOME IN CINCINNATI. AS A RESULT OF THE FOREGOING IT HAS
CREATED A FINANCIAL HARDSHIP AND AN EMOTIONAL STRAIN ON MY FAMILY. AT
THIS TIME IT WOULD BE UNECONOMICAL TO PROCEED WITH THE PCS MOVE TO
CHICAGO, WHICH WOULD AMOUNT TO APPROXIMATELY *** ($8400, $7100, $6200
AND $8600, RESPECTIVELY) AS INDICATED ON MY TRAVEL ORDER.
"SINCE THE JTR COVERING PCS IS PERMISSIVE, IT IS REQUESTED THAT PER
DIEM BE AUTHORIZED SINCE MY DUTY STATION STATUS WAS CHANGED FROM
PERMANENT TO A TEMPORARY SITUATION. *** "
BECAUSE OF THE IMMINENCE OF THE BASE CLOSURE, AS WELL AS THE
UNCERTAINTY AS TO THE DATE AT WHICH THEIR TRANSFERS WOULD BE EFFECTED,
THE FOUR CLAIMANTS CONTINUED TO RESIDE IN TEMPORARY QUARTERS AT CHICAGO
UNTIL THEIR SUBSEQUENT TRANSFERS RETAINING THEIR CINCINNATI HOMES RATHER
THAN SUBJECT THEIR FAMILIES TO TWO SUCCESSIVE MOVES. IN CONSEQUENCE,
OTHER THAN THE 30 DAYS TEMPORARY QUARTERS ALLOWANCE, THEY DID NOT INCUR
SUCH RELOCATION EXPENSES FOR WHICH REIMBURSEMENT HAD BEEN AUTHORIZED BY
THEIR PERMANENT CHANGE OF STATION ORDERS. THEIR SUBSEQUENT TRANSFERS
WERE ORDERED AS FOLLOWS: MR. SEYFRIED, OCTOBER 10, 1970; MR.
WESTENDORF, NOVEMBER 28, 1970; MR. MURRAY, NOVEMBER 14, 1970, AND MR.
TEUFEN, SEPTEMBER 12, 1970.
IN VIEW OF THE ABOVE CIRCUMSTANCES, MESSRS. SEYFRIED, WESTENDORF,
MURRAY, AND TEUFEN SUBMITTED CLAIMS FOR PER DIEM IN LIEU OF SUBSISTENCE
FOR THE PERIOD FROM FEBRUARY 17, 1970, THROUGH THE DATES OF THEIR
RESPECTIVE TRANSFERS. THOSE CLAIMS WERE DENIED BY OUR CLAIMS DIVISION
ON THE BASIS THAT THERE IS NO AUTHORITY UNDER APPLICABLE REGULATIONS FOR
PAYMENT OF PER DIEM TO AN EMPLOYEE ON DUTY WITHIN HIS PERMANENT DUTY
STATION AREA, NOR IS THERE ANY BASIS FOR PAYMENT TO EMPLOYEES OF AMOUNTS
WHICH THOUGH AUTHORIZED ARE NOT IN FACT INCURRED.
THE LETTER OF FEBRUARY 12, 1971, FROM MESSRS. SEYFRIED, WESTENDORF,
AND MURRAY, AND THAT FROM MR. TEUFEN, REQUESTING RECONSIDERATION OF
THEIR CLAIMS, ASKS, IN VIEW OF THE ANNOUNCED CLOSURE OF THE CHICAGO
AGENCY AND THE UNCERTAINTY AS TO THEIR TRANSFER DATES, THAT THE
DESIGNATION OF CHICAGO AS A PERMANENT DUTY STATION BE CHANGED TO A
TEMPORARY DUTY STATION.
THIS OFFICE HAS REPEATEDLY HELD THAT AN AGENCY MAY NOT DESIGNATE AN
EMPLOYEE'S OFFICIAL DUTY STATION AT SOME PLACE OTHER THAN THE PLACE AT
WHICH HE IS EXPECTED TO PERFORM THE PREPONDERANCE OF HIS DUTIES IN ORDER
TO PAY HIM PER DIEM AT SUCH PLACE, 31 COMP. GEN. 289 (1951), 32 ID. 87
(1952), 36 ID. 568 (1958). WE HAVE, HOWEVER, RECOGNIZED THAT WHETHER A
PARTICULAR DUTY STATION IS IN FACT A PERMANENT STATION OR TEMPORARY IS
NOT MERELY A MATTER OF ADMINISTRATIVE DESIGNATION, BUT IS A QUESTION OF
FACT TO BE DETERMINED FROM THE ORDERS, AND WHERE NECESSARY, FROM THE
CHARACTER OF THE ASSIGNMENT, PARTICULARLY AS TO THE DURATION THEREOF AND
THE NATURE OF THE DUTY, 33 COMP. GEN. 98 (1953).
YOU INDICATED BY YOUR LETTER OF JUNE 15, 1971, THAT ON FEBRUARY 11,
1970, SIX DAYS PRIOR TO THE EFFECTIVE DATE OF THE TRANSFERS OF THE FOUR
CLAIMANTS, THE ARMY MATERIEL COMMAND REQUESTED CLEARANCE OF A
CONGRESSIONAL ANNOUNCEMENT OF THE CHICAGO PROCUREMENT AGENCY CLOSURE.
APPLICABLE DEPARTMENT OF DEFENSE AND DEPARTMENT OF THE ARMY DIRECTIVES
DO NOT PERMIT RELEASE OF INFORMATION TO EMPLOYEES AND THE PUBLIC OF
MAJOR PERSONNEL REDUCTIONS, TRANSFERS, AND CLOSURES PRIOR TO THE
APPROVAL AND RELEASE TO THE VARIOUS CONGRESSIONAL DELEGATIONS. YOU
STATE THAT IT WAS FOR THIS REASON THAT THE ARMY MATERIEL COMMAND WAS
PRECLUDED FROM INFORMING THE CLAIMANTS PRIOR TO THEIR DEPARTURE FROM
CINCINNATI THAT THEY WOULD NOT HAVE CONTINUING POSITIONS IN CHICAGO.
YOU FURTHER INDICATE THAT IT WAS BECAUSE OF THESE RESTRICTIONS THAT THE
ORIGINAL PERMANENT CHANGE OF STATION ORDERS WERE NEITHER CANCELLED NOR
CHANGED TO DESIGNATE CHICAGO AS A TEMPORARY DUTY STATION. WE NOTE THAT
HAD THE CLAIMANTS BEEN AWARE OF THE SITUATION THEY PROBABLY WOULD HAVE
ACCEPTED ASSIGNMENTS ELSEWHERE AS OFFERED.
FROM THE FOREGOING, IT IS APPARENT THAT AT THE TIME OF THE TRANSFERS
OF MESSRS. SEYFRIED, WESTENDORF, MURRAY, AND TEUFEN TO THE CHICAGO
AGENCY IT WAS NOT CONTEMPLATED THAT CHICAGO WOULD IN FACT BE THEIR
PERMANENT ASSIGNMENTS. THEREFORE UNDER THE PARTICULAR CIRCUMSTANCES OF
THESE CASES, WE WOULD HAVE NO OBJECTION TO THEIR TRAVEL ORDERS BEING
AMENDED AT THIS TIME TO DESIGNATE CHICAGO AS THE TEMPORARY DUTY STATION
OF EACH AND APPROPRIATE RATES OF PER DIEM AUTHORIZED IN ACCORDANCE WITH
THE JOINT TRAVEL REGULATIONS. AN ADJUSTMENT SHOULD BE MADE FOR THE 30
DAYS TEMPORARY QUARTERS ALLOWANCE PREVIOUSLY PAID TO EACH.
THE CLAIMANTS HAVE BEEN ADVISED OF THIS ACTION.
B-172681, JUL 21, 1971
BID PROTEST - BIDDER RESPONSIBILITY - CANCELLATION OF SOLICITATION
DECISION CONCERNING PROTEST OF J & H SMITH MANUFACTURING COMPANY,
SECOND LOW OFFEROR, AGAINST THE REJECTION OF ITS OFFER UNDER RFP ISSUED
BY U.S. ARMY AMMUNITION PROCUREMENT AND SUPPLY AGENCY FOR 11,473 ROCKET
LAUNCHERS TO BE SUPPLIED BY TWO CONTRACTORS TO PRESERVE SOURCES OF
PROCUREMENT.
DETERMINATION OF THE PROPRIETY OF THE REJECTION OF PROTESTANT'S OFFER
BECAUSE OF NONRESPONSIBILITY HAS BEEN RENDERED ACADEMIC BY THE
CANCELLATION OF THE URGENT SOLICITATION. HOWEVER, THE SCHEDULING OF
PROCUREMENTS OF THOSE UNITS FOR MARCH OF 1972 SHOULD ALLOW TIME FOR
FIRST ARTICLE TESTING AND DELIVERY BY MANUFACTURERS OTHER THAN CURRENT
PRODUCERS; THE SECRETARY OF THE ARMY IS BEING SO ADVISED.
TO HILL, CHRISTOPHER AND PHILLIPS:
REFERENCE IS MADE TO YOUR LETTER OF MAY 24, 1971, SUPPLEMENTING THE
PROTEST OF THE J & H SMITH MANUFACTURING COMPANY (J & H SMITH), AGAINST
THE PROPOSED REJECTION OF THAT FIRM'S OFFER UNDER REQUEST FOR PROPOSALS
(RFP) DAAA09-71-R-0112 (HEREAFTER RFP-0112) ISSUED ON MARCH 1, 1971, BY
THE UNITED STATES ARMY AMMUNITION PROCUREMENT AND SUPPLY AGENCY, JOLIET,
ILLINOIS.
RFP-0112 WAS FOR 11,473 ROCKET LAUNCHERS AND SPECIFIED THAT TWO
AWARDS WOULD BE MADE FOR THE TOTAL REQUIREMENT IN ORDER TO AVOID
DISCONTINUITY OF SUPPLY AND TO MAINTAIN AND/OR PROTECT PRODUCTION BASES.
PROPOSALS WERE REQUESTED FOR FOUR QUANTITIES SINCE IT WAS ANTICIPATED
THAT THE AWARDS WOULD BE ON THE BASIS EITHER OF THE FIRST CONTRACTOR
SUPPLYING 8,623 UNITS AND THE SECOND CONTRACTOR SUPPLYING 2,850 UNITS OR
THE FIRST CONTRACTOR SUPPLYING 7,623 UNITS AND THE SECOND CONTRACTOR
SUPPLYING 3,800 UNITS.
INITIALLY ONLY THE TWO CURRENT PRODUCERS, STANDARD ARMAMENT AND THE
BRUNSWICK CORPORATION, WERE SOLICITED SINCE DELIVERIES WERE TO START IN
JULY 1971 AND CONTINUE THROUGH NOVEMBER 1971. ACHIEVEMENT OF THIS
DELIVERY SCHEDULE WAS CONSIDERED NECESSARY TO AVOID DEPLETION OF THE
SUPPLY OF THESE UNITS WHICH WERE TO BE USED IN DIRECT SUPPORT OF UNITED
STATES COMBAT FORCES IN SOUTHEAST ASIA. INFORMATION AT THE PROCURING
ACTIVITY REVEALED THAT THERE WAS A CRITICAL NEED FOR THE ITEM AND IT WAS
BELIEVED THAT ONLY CURRENT PRODUCERS COULD MEET THE SHORT PRODUCTION
LEAD TIME. HOWEVER, AS A RESULT OF A SYNOPSIS OF THE PROCUREMENT
APPEARING IN THE COMMERCE BUSINESS DAILY, WHICH WAS INSERTED FOR
SUBCONTRACTING PURPOSES ONLY, FIVE ADDITIONAL SOLICITATION PACKAGES WERE
REQUESTED AND MAILED TO PROSPECTIVE OFFERORS INCLUDING J & H SMITH.
THREE PROPOSALS WERE RECEIVED ON THE DUE DATE, MARCH 17, 1971, AT
WHICH TIME IT WAS DETERMINED THAT J & H SMITH WAS THE SECOND LOW OFFEROR
ON ALL FOUR QUANTITIES, WHILE STANDARD ARMAMENT WAS THE LOW OFFEROR ON
ALL FOUR QUANTITIES. THE LOWEST EVALUATION COMBINATION FOR THE TWO
INTENDED AWARDS WAS STANDARD ARMAMENT'S OFFER ON 8,623 UNITS AND J & H
SMITH'S OFFER ON 2,850 UNITS.
ON MARCH 24 AND 25, 1971, A PREAWARD SURVEY OF THE J & H SMITH
FACILITIES WAS CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES
REGION (DCASR), NEW YORK. THE DCASR TEAM WAS ASSISTED BY PERSONNEL FROM
THE PROCURING ACTIVITY AND THE PICATINNY ARSENAL. IT WAS DETERMINED
THAT J & H SMITH WAS NOT A RESPONSIBLE OFFEROR, PRIMARILY BECAUSE IT WAS
FELT THAT J & H SMITH COULD NOT DELIVER THE LAUNCHERS WITHIN THE
REQUIRED TIME FRAME. SUBSEQUENTLY, THE NEW YORK OFFICE OF THE SMALL
BUSINESS ADMINISTRATION (SBA) REVIEWED THE DETERMINATION AND REFUSED TO
ISSUE J & H SMITH A CERTIFICATE OF COMPETENCY.
IT IS YOUR POSITION THAT THE ARMY AND SBA UNFAIRLY EVALUATED J & H
SMITH'S CAPACITY ON THE BASIS OF PRODUCING THE 8,623 UNITS (AT THE RATE
OF 1,800 UNITS A MONTH) RATHER THAN PRODUCING THE 2,850 UNITS (AT THE
RATE OF 600 UNITS A MONTH). ALSO, YOU STATE THAT THE 30 DAY PERIOD FOR
FIRST ARTICLE SUBMISSION WAS UNNECESSARILY SHORT AND WAS SPECIFIED
SOLELY TO EXCLUDE COMPETITION FROM FIRMS OTHER THAN THE CURRENT
PRODUCERS OF THE LAUNCHERS.
AFTER REVERIFICATION OF THE URGENT NEED FOR THE LAUNCHERS, THE
CONTRACTING OFFICER SIGNED A DETERMINATION OF URGENCY ON MAY 6, 1971,
AND AUTHORITY WAS THEREAFTER REQUESTED TO MAKE AN AWARD FOR THE LARGER
QUANTITY OF 8,623 UNITS TO STANDARD ARMAMENT, PRIOR TO COMPLETION OF THE
CERTIFICATE OF COMPETENCY REVIEW ON J & H SMITH AND RESOLUTION OF THAT
FIRM'S PROTEST. IN VIEW OF THE URGENCY, AND SINCE STANDARD ARMAMENT WAS
ENTITLED TO THE AWARD FOR THE LARGER QUANTITY IRRESPECTIVE OF WHETHER J
& H SMITH WAS DETERMINED TO BE ENTITLED TO THE SECOND AWARD FOR 2,850
UNITS, AUTHORITY TO MAKE THE AWARD TO STANDARD ARMAMENT WAS GRANTED ON
MAY 13, 1971, AND THE AWARD WAS MADE THE FOLLOWING DAY.
IN REGARD TO THE SMALLER QUANTITY OF 2,850 UNITS WITH WHICH THIS
PROTEST IS CONCERNED, A REVIEW WAS MADE OF THE CONTINUED VALIDITY OF THE
REQUIREMENT REPRESENTED BY THIS QUANTITY AND THE CONTRACTING OFFICER
REPORTS THE FOLLOWING RESULTS:
"THE INCLOSED AMCPM-RK LETTER (REFERENCE 1.H) TO THIS AGENCY ADVISES
THAT THE DECISION TO MAKE TWO AWARDS UNDER THIS SOLICITATION IS
CANCELLED, AND THAT THE REMAINING QUANTITY OF 2,850 EACH ITEMS BE
COMBINED WITH THE FISCAL YEAR 1972 PROCUREMENT SOLICITATION. FURTHER
TELEPHONE INQUIRY WITH THE PROJECT MANAGER'S OFFICE REVEALED THAT
DELIVERY OF THE 2,850 EACH ITEMS IS NOT REQUIRED UNTIL MARCH 1972.
"IN VIEW OF THE FOREGOING, AND PURSUANT TO ASPR 2-404.1(B)(VIII) THIS
AGENCY PLANS TO PREPARE A CONTRACTING OFFICER'S DETERMINATION TO CANCEL
THE SOLICITATION. THIS DETERMINATION WILL BE BASED ON THE FOLLOWING:
A. THE URGENT DELIVERY REQUIREMENT OF THE ITEM BEING PROCURED IS NO
LONGER REQUIRED.
B. THE REQUIREMENT TO MAKE TWO AWARDS AS A RESULT OF THE SOLICITATION
FOR THE PURPOSE OF MAINTAINING THE DOD PROTECTED BASE HAS BEEN
CANCELLED.
C. THE FIRST AWARD UNDER THE SOLICITATION SATISFIES THE NEEDS OF THE
CUSTOMERS. DELIVERY OF THE REMAINING 2,850 UNITS UNDER THE SOLICITATION
IS NOT REQUIRED AT THIS TIME.
D. THE PROJECT MANAGER HAS ADVISED THAT THE ADDITIONAL COST TO
MAINTAIN TWO PRODUCERS IS EXCESSIVE.
E. THE PROJECT MANAGER HAS DIRECTED THAT THE REMAINING 2,850 UNITS BE
COMBINED AND AWARDED WITH THE FY72 PROCUREMENT SOLICITATION."
PARAGRAPH 10(B) OF STANDARD FORM 33A INCORPORATED BY REFERENCE IN THE
RFP, EXPRESSLY RESERVES TO THE GOVERNMENT THE RIGHT TO REJECT ANY OR ALL
OFFERS SUBMITTED UNDER THE RFP AND, IN VIEW OF THE REASONS ADVANCED BY
THE CONTRACTING OFFICER FOR CANCELLING THE SECOND INTENDED PROCUREMENT,
WE DO NOT BELIEVE THIS OFFICE WOULD BE JUSTIFIED IN OBJECTING TO SUCH
ACTION.
WHILE THE CANCELLATION OF THE PROCUREMENT OF THE SMALLER QUANTITY, ON
WHICH J & H SMITH WAS THE LOW OFFEROR, IS REGARDED AS RENDERING ITS
PROTEST ACADEMIC AND THE MERITS WILL THEREFORE NOT BE CONSIDERED, IT
APPEARS THAT THE SCHEDULED PROCUREMENT OF THOSE UNITS FOR MARCH 1972
SHOULD PERMIT THE ALLOWANCE OF ADEQUATE TIME FOR FIRST ARTICLE TESTING
AND DELIVERY BY MANUFACTURERS OTHER THAN THE CURRENT PRODUCERS.
ACCORDINGLY, WE ARE CALLING THIS MATTER TO THE ATTENTION OF THE
SECRETARY OF THE ARMY TO INSURE THAT THE SOLICITATION IS STRUCTURED IN
THE NEXT PROCUREMENT OF THE LAUNCHERS SO AS NOT TO RESTRICT COMPETITION
BY PLACING UNDUE TIME REQUIREMENTS ON NEW PROSPECTIVE MANUFACTURERS OF
THE ITEM.
B-172944, JUL 21, 1971
HOUSEHOLD GOODS - NONTEMPORARY STORAGE
SUSTAINING PRIOR CLAIMS DIVISION SETTLEMENT DENYING CLAIM FOR
REIMBURSEMENT OF CHARGES INCURRED FOR THE STORAGE OF HOUSEHOLD GOODS
INCIDENT TO RELEASE FROM ACTIVE DUTY AND RETIREMENT FROM THE AIR FORCE.
PARAGRAPH M8101-2A, JOINT TRAVEL REGULATIONS, PROVIDES FOR NONTEMPORARY
STORAGE FOR ONE YEAR IN SUCH CASES IF THE STORAGE IS PERFORMED AT THE
MEMBER'S LAST DUTY STATION. SINCE THE RECORD DISCLOSES THAT CLAIMANT
HAD THE GOODS SHIPPED TO HIS HOME OF SELECTION BEFORE COMMENCING
NONTEMPORARY STORAGE, THERE IS NO LEGAL BASIS UPON WHICH THE COMP. GEN.
CAN AUTHORIZE PAYMENT OF THE CLAIM.
TO LIEUTENANT COLONEL VINCENT P. ANDERSON, JR., USAF, RETIRED:
FURTHER REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 15, 1970, AND
APRIL 16, 1971, REQUESTING RECONSIDERATION OF OUR CLAIMS DIVISION
SETTLEMENT DATED DECEMBER 8, 1970, WHICH DISALLOWED YOUR CLAIM FOR
REIMBURSEMENT OF CHARGES YOU INCURRED FOR THE STORAGE OF YOUR HOUSEHOLD
EFFECTS DURING THE PERIOD OF JANUARY 5, 1969, THROUGH JANUARY 5, 1970,
INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY AND RETIREMENT FROM THE AIR
FORCE.
BY UNITED STATES AIR FORCE SPECIAL ORDER NUMBER AC-4939, DATED
FEBRUARY 28, 1968, YOU WERE RELIEVED FROM ACTIVE DUTY AT MINOT AIR FORCE
BASE, NORTH DAKOTA, EFFECTIVE JULY 31, 1968, ASSIGNED TO THE UNITED
STATES AIR FORCE RETIRED RESERVE EFFECTIVE AUGUST 1, 1968, AND DIRECTED
TO PROCEED TO YOUR HOME OF SELECTION.
YOU SAY, IN EFFECT, THAT PRIOR TO YOUR RETIREMENT A REPRESENTATIVE OF
THE COMMERCIAL TRANSPORTATION OFFICE AT MINOT AIR FORCE BASE ADVISED YOU
THAT INCIDENT TO YOUR RETIREMENT YOU WOULD BE ENTITLED TO STORAGE OF
YOUR HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE FOR A PERIOD OF 12 MONTHS
AFTER THEIR SHIPMENT TO YOUR HOME OF SELECTION. PURSUANT TO THAT ADVICE
YOU HAD YOUR HOUSEHOLD EFFECTS PICKED UP ON JUNE 26, 1968, AND
TRANSPORTED TO STOCKTON, CALIFORNIA, WHERE THEY WERE PLACED IN TEMPORARY
STORAGE AT GOVERNMENT EXPENSE FOR A PERIOD OF 90 DAYS, WHICH WAS
APPARENTLY EXTENDED TO 180 DAYS. AT THE EXPIRATION OF THE 180 DAYS YOU
APPARENTLY LEFT YOUR HOUSEHOLD EFFECTS IN STORAGE FOR AN ADDITIONAL YEAR
(JANUARY 5, 1969, THROUGH JANUARY 5, 1970), THE PERIOD FOR WHICH YOU NOW
CLAIM REIMBURSEMENT FOR STORAGE CHARGES.
YOU SAY FURTHER THAT HAD YOU BEEN CORRECTLY ADVISED BY THE MINOT AIR
FORCE BASE COMMERCIAL TRANSPORTATION OFFICE REPRESENTATIVE, YOU WOULD
HAVE LEFT YOUR HOUSEHOLD EFFECTS IN NONTEMPORARY STORAGE AT GOVERNMENT
EXPENSE AT MINOT AIR FORCE BASE FOR A PERIOD OF ONE YEAR BEFORE HAVING
THEM TRANSPORTED TO STOCKTON WHERE YOU BELIEVE THEY COULD HAVE THEN BEEN
PLACED IN TEMPORARY STORAGE FOR AN ADDITIONAL 180 DAYS AT GOVERNMENT
EXPENSE.
YOUR CLAIM FOR REIMBURSEMENT FOR THE STORAGE OF YOUR HOUSEHOLD
EFFECTS DURING THE PERIOD JANUARY 5, 1969, THROUGH JANUARY 5, 1970, WAS
DISALLOWED BECAUSE YOU HAD YOUR HOUSEHOLD GOODS SHIPPED AT GOVERNMENT
EXPENSE TO YOUR HOME OF SELECTION PRIOR TO BEING PLACED IN STORAGE AND
AFTER SUCH SHIPMENT NONTEMPORARY STORAGE WAS NOT AUTHORIZED.
SECTION 406(B) OF TITLE 37, UNITED STATES CODE, PROVIDES THAT IN
CONNECTION WITH A CHANGE OF PERMANENT STATION (WHICH INCLUDES FROM LAST
DUTY STATION TO HOME UPON RETIREMENT) A MEMBER IS ENTITLED TO
TRANSPORTATION, INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE
AND UNPACKING OF HOUSEHOLD EFFECTS, OR REIMBURSEMENT THEREFOR, SUBJECT
TO REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED.
THE NONTEMPORARY STORAGE AT GOVERNMENT EXPENSE OF THE HOUSEHOLD
EFFECTS OF MEMBERS RETIRED IN THE CIRCUMSTANCES INVOLVED IN YOUR CASE IS
AUTHORIZED BY SECTION 406(D) OF TITLE 37 FOR A PERIOD NOT LONGER THAN
ONE YEAR FROM THE DATE OF RETIREMENT OF THE MEMBER CONCERNED. IT
FURTHER PROVIDES THAT SUCH STORAGE SHALL BE IN FACILITIES OF THE UNITED
STATES, OR IN COMMERCIAL FACILITIES WHEN IT IS CONSIDERED TO BE MORE
ECONOMICAL TO THE UNITED STATES.
PURSUANT TO SECTION 406(D), THE SECRETARIES CONCERNED ISSUED THE
REGULATIONS FOUND IN PARAGRAPH M8260-3 OF THE JOINT TRAVEL REGULATIONS
WHICH PROVIDES GENERALLY THAT A MEMBER WHO IS ENTITLED TO THE SHIPMENT
OF HOUSEHOLD GOODS TO A HOME OF SELECTION UPON RETIREMENT IS ENTITLED TO
NONTEMPORARY STORAGE OF SUCH HOUSEHOLD GOODS IN ACCORDANCE WITH
PARAGRAPH M8101, FOR A PERIOD NOT TO EXCEED ONE YEAR FROM THE
TERMINATION OF ACTIVE DUTY. PARAGRAPH M8101-2A PROVIDES THAT
"NONTEMPORARY STORAGE WILL BE IN AN APPROVED COMMERCIAL OR GOVERNMENT
STORAGE FACILITY WHICHEVER IS NEAREST TO THE PLACE WHERE THE HOUSEHOLD
GOODS ARE LOCATED ON THE DATE OF ISSUANCE OF THE MEMBER'S PERMANENT
CHANGE-OF-STATION ORDERS."
IN ACCORDANCE WITH THESE REGULATIONS, YOU WOULD HAVE BEEN ENTITLED TO
ONE-YEAR'S NONTEMPORARY STORAGE AT GOVERNMENT EXPENSE ONLY IF YOUR
HOUSEHOLD EFFECTS HAD BEEN TURNED OVER TO THE TRANSPORTATION OFFICER AT
MINOT AIR FORCE BASE, PRIOR TO SHIPMENT TO YOUR HOME OF SELECTION FOR
NONTEMPORARY STORAGE IN THE FACILITY WHICH HE DETERMINED TO BE THE MOST
ECONOMICAL TO THE GOVERNMENT. SINCE YOU HAD YOUR HOUSEHOLD EFFECTS
SHIPPED DIRECTLY TO YOUR HOME OF SELECTION AND STORED THERE, YOU ARE NOT
ENTITLED TO REIMBURSEMENT FOR ANY STORAGE CHARGES IN EXCESS OF THE 180
DAYS OF TEMPORARY STORAGE AT DESTINATION WHICH WAS APPARENTLY AUTHORIZED
IN YOUR CASE PURSUANT TO PARAGRAPH M8100-2 OF THE REGULATIONS AND WHICH
YOU APPARENTLY HAVE RECEIVED.
EVEN IF YOUR GOODS HAD BEEN PLACED IN NONTEMPORARY STORAGE BEFORE
SHIPMENT TO YOUR HOME OF SELECTION, IT MAY BE THAT YOU WOULD NOT HAVE
BEEN ENTITLED TO TEMPORARY STORAGE IN CONNECTION WITH SUCH SHIPMENT
SINCE PARAGRAPH M8260-3 OF THE REGULATIONS ALSO PROVIDED THAT TEMPORARY
STORAGE IN CONNECTION WITH A SHIPMENT FROM NONTEMPORARY STORAGE TO THE
HOME OF SELECTION IS NOT AUTHORIZED EXCEPT WHEN ALL OF THE FOLLOWING
CONDITIONS EXIST:
"1. WHEN NECESSARY BECAUSE OF CONDITIONS BEYOND CONTROL OF THE
MEMBER, OR DEPENDENT, IF APPLICABLE;
"2. WHEN SUCH CONDITIONS ARISE AFTER SHIPMENT FROM NONTEMPORARY
STORAGE;
"3. WHEN TEMPORARY STORAGE IS AUTHORIZED OR APPROVED BY THE
TRANSPORTATION OFFICER OR SUCH OTHER OFFICER AS THE SERVICE CONCERNED
MAY DESIGNATE."
HOWEVER, REGARDLESS OF WHAT YOUR RIGHTS MIGHT HAVE BEEN IF THE GOODS
HAD BEEN PLACED IN NONTEMPORARY STORAGE BEFORE SHIPMENT, THE FACT THAT
YOU MAY HAVE BEEN ERRONEOUSLY ADVISED AS TO YOUR ENTITLEMENT TO
REIMBURSEMENT FOR NONTEMPORARY STORAGE AT DESTINATION DOES NOT, IN OUR
OPINION, PROVIDE A LEGAL BASIS TO AUTHORIZE PAYMENT OF YOUR CLAIM IN
CONTRAVENTION OF THE APPLICABLE REGULATIONS. ACCORDINGLY, THE
SETTLEMENT OF DECEMBER 8, 1970, IS SUSTAINED.
B-172972, JUL 21, 1971
BID PROTEST - RESTRICTIVE SPECIFICATIONS
DENIAL OF PROTEST BY AMERICAN TOOL AGAINST AWARD OF A CONTRACT TO ANY
OTHER FIRM UNDER AN IFB ISSUED BY THE TENNESSEE VALLEY AUTHORITY FOR
VARIOUS SIZED LATHES. PROTESTANT CONTENDS THAT THE SPECIFICATIONS WERE
TOO RESTRICTIVE AND LIMITED COMPETITION TO ONE MANUFACTURER.
THE DRAFTING OF SPECIFICATIONS AND THE FACTUAL DETERMINATION AS TO
WHETHER A PRODUCT MEETS THE SPECIFICATIONS ARE PRIMARILY WITHIN THE
PROVINCE OF THE PROCURING ACTIVITY. UNLESS THERE IS A CLEAR SHOWING OF
AN ABUSE OF DISCRETION, AND SUCH A SHOWING IS ABSENT HERE, THE COMP.
GEN. WILL NOT QUESTION THE JUDGEMENT OF THE PROCURING ACTIVITY.
FURTHER, 16 U.S.C. 831 H, SUBSECTION (B) RESTRICTS THE INFLUENCE GAO
HAS OVER THE EXPENDITURE OF FUNDS BY TVA ONCE THE BOARD HAS DETERMINED
THAT SUCH EXPENDITURE IS NECESSARY.
TO AMERICAN TOOL:
REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO
ANY OTHER FIRM UNDER INVITATION FOR BIDS NO. 71C36-92663, ISSUED BY THE
TENNESSEE VALLEY AUTHORITY (TVA).
THE SUBJECT INVITATION WAS ISSUED ON MARCH 1, 1971, FOR THE
PROCUREMENT OF A 32 INCH, A 25 INCH AND A 10 INCH LATHE UNDER ITEMS 1,
2, AND 3, RESPECTIVELY. ON APRIL 20, 1971, TIDEWATER SUPPLY COMPANY,
INCORPORATED, RECEIVED AN AWARD FOR ITEMS 1 AND 2, IN THE AMOUNT OF
$87,960.50. ITEM 3 WAS AWARDED TO SOUTH BEND LATHE. ALTHOUGH R. O.
DEADERICK COMPANY, INCORPORATED, SUBMITTED THE LOW RESPONSIVE BID UNDER
ITEM 2 OFFERING AN AMERICAN TOOL LATHE, AWARD OF BOTH ITEMS WAS MADE TO
TIDEWATER AS IT HAD OFFERED A FIVE PERCENT DISCOUNT IF AWARDED BOTH
ITEMS, AND SEPARATE AWARDS WOULD HAVE RESULTED IN ADDITIONAL COSTS OF
$2,819.50. DEADERICK'S BID UNDER ITEM 1, OFERING A 27 SPEED AMERICAN
TOOL LATHE, WAS DETERMINED NONRESPONSIVE.
YOU CONTEND THAT THE SPECIFICATION FOR ITEM 1 IS RESTRICTIVE IN THAT
IT CLOSELY PARALLELS LODGE & SHIPLEY'S MODEL NUMBER 3220 SUPERTURN
LATHE. IN ADDITION, YOU QUESTION THE NECESSITY FOR A LATHE WITH A
MINIMUM 32 SPINDLE SPEEDS, AND POINT OUT THAT THE DEPARTMENT OF DEFENSE
USES 27 SPEED LATHES IN ACCORDANCE WITH MILITARY SPECIFICATION L-23257.
FURTHER, YOU POINT THAT WHEREAS ITEM 1 CALLED FOR 32 SPEEDS AND 48
FEEDS, YOUR LATHE WITH 27 SPEEDS AND 60 FEEDS, EXCEEDS THE REQUIREMENTS
IN COMBINATION OF SPEEDS AND FEEDS.
IT IS TVA'S POSITION THAT THE SPECIFICATIONS WERE NOT SO RESTRICTIVE
AS TO FAVOR A PARTICULAR BRAND OF LATHES. IN THIS CONNECTION, TVA
POINTS OUT THAT AT LEAST THREE MANUFACTURERS, LE BLOND, INCORPORATED,
LODGE & SHIPLEY, AND MONARCH MACHINE TOOL COMPANY, OFFER LATHES MEETING
THE SPECIFICATIONS OF ITEM 1, AND AT LEAST FIVE MANUFACTURERS, LODGE &
SHIPLEY, AMERICAN TOOL, LE BLOND, INCORPORATED, LEHMAN MACHINE COMPANY,
AND MONARCH, OFFER LATHES MEETING THE REQUIREMENTS OF ITEM 2. AS TO THE
REQUIREMENT FOR 32 SPEEDS, TVA STATES THAT SINCE THE LATHES ARE TO BE
USED FOR MAINTENANCE OPERATIONS AT ITS SEQUOYAH NUCLEAR PLANT THEY MUST
BE FLEXIBLE FOR THE MULTITUDE OF JOBS, INCLUDING LARGE AND SMALL
WORKPIECES OF VARYING MATERIALS, AND THE LARGE NUMBER OF SPEEDS IS
PARTICULARLY DESIRABLE TO ACCOMPLISH THE WIDE RANGE OF WORK. IT IS
TVA'S POSITION THAT THE GREATER COMBINATION OF SPEEDS AND FEEDS OF YOUR
LATHE DOES NOT COMPENSATE FOR THE SMALLER NUMBER OF SPEEDS AS THE NUMBER
OF SPEEDS DETERMINES THE ADAPTABILITY OF THE LATHE FOR HANDLING THE
VARIOUS SIZES AND COMPOSITIONS OF WORKPIECES.
THE DRAFTING OF SPECIFICATIONS TO MEET THE MINIMUM NEEDS OF THE
GOVERNMENT, AND THE FACTUAL DETERMINATION WHETHER A PRODUCT OFFERED
THEREUNDER MEETS THE SPECIFICATIONS, ARE MATTERS PRIMARILY WITHIN THE
PROVINCE OF THE PROCURING ACTIVITY. 49 COMP. GEN. 195, 198 (1969). IN
THE ABSENCE OF A CLEAR SHOWING OF ABUSE OF THE ADMINISTRATIVE DISCRETION
PERMITTED, IT WOULD NOT BE PROPER FOR OUR OFFICE TO SUBSTITUTE OUR
JUDGMENT FOR THAT OF THE PROCURING ACTIVITY CONCERNED. WE FIND NO SUCH
ABUSE IN THE PRESENT CASE.
ALSO FOR CONSIDERATION IS THE FACT THAT THE TENNESSEE VALLEY
AUTHORITY IS A GOVERNMENT CORPORATION WHOSE PURCHASING AND CONTRACTING
AUTHORITY IS SET FORTH IN SUBSECTION (B) OF SECTION 831 H, TITLE 16,
UNITED STATES CODE, WHICH PROVIDES IN PART AS FOLLOWS:
" *** PROVIDED, THAT, SUBJECT ONLY TO THE PROVISIONS OF THIS CHAPTER,
THE CORPORATION IS AUTHORIZED TO MAKE SUCH EXPENDITURES AND TO ENTER
INTO SUCH CONTRACTS, AGREEMENTS AND ARRANGEMENTS, UPON SUCH TERMS AND
CONDITIONS AND IN SUCH MANNER AS IT MAY DEEM NECESSARY, INCLUDING THE
FINAL SETTLEMENT OF ALL CLAIMS AND LITIGATION BY OR AGAINST THE
CORPORATION; AND, NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW
GOVERNING THE EXPENDITURE OF PUBLIC FUNDS, THE GENERAL ACCOUNTING OFFICE
*** SHALL NOT DISALLOW CREDIT FOR, NOR WITHHOLD FUNDS BECAUSE OF, ANY
EXPENDITURE WHICH THE BOARD SHALL DETERMINE TO HAVE BEEN NECESSARY TO
CARRY OUT THE PROVISIONS OF SAID CHAPTER."
ACCORDINGLY, THERE IS NO LEGAL BASIS FOR OUR OFFICE TO DISTURB THE
AWARDS MADE UNDER THE SUBJECT INVITATION.
B-173174, JUL 21, 1971
CIVILIAN EMPLOYEE - COMMUTATION ALLOWANCE
DECISION ALLOWING PAYMENT OF A DAILY COMMUTATION ALLOWANCE, BUT NOT
PER DIEM, TO LARRY STEMPEL WHILE ATTENDING TRAINING AT THE INTERNAL
REVENUE SERVICE REGIONAL TRAINING CENTER, UNIONDALE, LONG ISLAND, NEW
YORK.
SINCE CLAIMANT TRAVELED BY PRIVATELY OWNED VEHICLE RATHER THAN BE
COMMON CARRIER AND CONSEQUENTLY USED LESS THAN THE MINIMUM TRAVEL TIME
REQUIRED FOR PER DIEM TO BE GRANTED UNDER THE APPLICABLE REGULATIONS,
THE COMP. GEN. WILL NOT AUTHORIZE THE PAYMENT OF PER DIEM, BUT WILL NOT
OBJECT TO THE PAYMENT OF COMMUTATION EXPENSES FOR DAYS CLAIMANT REMAINED
AT CENTER.
TO MR. JACK H. RAND:
WE REFER FURTHER TO YOUR LETTER OF MAY 28, 1971, REFERENCE AD:FF,
CONCERNING THE REIMBURSABILITY OF PER DIEM OR IN THE ALTERNATIVE DAILY
COMMUTATION EXPENSES TO MR. LARRY STEMPEL DURING JULY AND AUGUST 1970
WHILE HE WAS ATTENDING YOUR REGIONAL TRAINING CENTER IN UNIONDALE, LONG
ISLAND, NEW YORK.
YOU STATE THAT THE LOCATION OF THE REGIONAL TRAINING CENTER PRECLUDES
THE PRESCRIPTION OF SPECIFIC RULES TO REGULATE THE DETERMINATION OF
WHETHER THE CENTER IS OUTSIDE THE COMMUTING AREA OF THE VARIOUS OFFICIAL
STATIONS OR RESIDENCES IN THE METROPOLITAN NEW YORK VICINITY.
ACCORDINGLY, YOU HAVE ESTABLISHED ADMINISTRATIVE PER DIEM ELIGIBILITY
GUIDELINES BASED ON TRAVEL TIME AND YOU REFER TO DETAILED INSTRUCTIONS
IN A REGIONAL COMMISSIONER RELEASE - RC-NA-MEMORANDUM 17-42 OF JULY 2,
1969. SECTION 3.011 OF THAT RELEASE READS:
".01 PER DIEM
"1. AN EMPLOYEE WHOSE NORMAL TRAVEL TIME FROM HOME TO THE REGIONAL
TRAINING CENTER EXCEEDS 1-1/2 HOURS IS ELIGIBLE TO INCUR LODGING
EXPENSES IN THE VICINITY OF THE REGIONAL TRAINING CENTER. THESE
EMPLOYEES WILL BE ENTITLED TO RECEIVE PER DIEM. THE EMPLOYEE WILL HAVE
THE OPTION TO ELECT TO COMMUTE DAILY OR INCUR LODGING EXPENSES.
"2. AN EMPLOYEE WHOSE POST OF DUTY OR RESIDENCE IS IN NASSAU COUNTY
WILL NOT BE ELIGIBLE FOR PER DIEM."
SECTION 3.011 WAS RENUMBERED AND REVISED ON AUGUST 6, 1970, TO READ:
"SECTION 4. PER DIEM
".01 RESIDENTS OF NASSAU COUNTY AND EMPLOYEES OF THE MINEOLA OFFICE
ARE NOT ELIGIBLE FOR PER DIEM.
".02 ALL OTHER EMPLOYEES WHOSE TRAVEL TIME FROM THEIR RESIDENCE TO
THE REGIONAL TRAINING CENTER BY THE MOST EXPEDITIOUS MEANS AVAILABLE TO
THEM EXCEEDS 1-1/2 HOURS EACH WAY, HAVE THE OPTION TO:
"1 COMMUTE DAILY, OR
"2 INCUR LODGING EXPENSE AND BE ALLOWED PER DIEM.
"TRAINEES FROM THE METROPOLITAN AREA TRAVELING TO THE REGIONAL
TRAINING CENTER HAVE A CHOICE OF TRAVELING BY PRIVATELY OWNED
AUTOMOBILE, COMMON CARRIER, OR CAR POOL."
YOU POINT OUT THAT ENTITLEMENT TO LODGING IS CONSIDERED OPTIONAL WHEN
ONE TRAVELS BY COMMON CARRIER SINCE ALL SUCH TRAVEL EXCEEDS 1-1/2 HOURS,
WHEREAS IN ALMOST ALL CASES OF TRAVEL BY PRIVATELY OWNED AUTOMOBILE FROM
ANY OF THE FIVE NEW YORK CITY BOROUGHS THE TRIP IS LESS THAN 1-1/2
HOURS.
IT APPEARS THAT MR. LARRY STEMPEL, ASSIGNED TO THE INTERNAL REVENUE
SERVICE MANHATTAN DISTRICT OFFICE, TRAVELED A DISTANCE OF 33 MILES BY
PRIVATELY OWNED AUTOMOBILE FROM HIS RESIDENCE IN BROOKLYN TO THE
REGIONAL TRAINING CENTER EACH MONDAY MORNING AND RETURNED FRIDAY NIGHT
DURING THE INTERVENING WEEKENDS FROM JULY 13 TO AUGUST 20, 1970. MR.
STEMPEL LODGED IN THE CONTRACT HOUSING AND WAS PAID $323 PER DIEM AS
CLAIMED DURING JULY AND AUGUST, ALTHOUGH SUCH TRAVEL IS LESS THAN 1-1/2
HOURS.
YOU HAVE SUSPENDED THE $323, AND MR. STEMPEL RECLAIMS THE AMOUNT
SUSPENDED SINCE HE FEELS THE ELIGIBILITY FOR PER DIEM SHOULD HAVE BEEN
BASED ON COMMON-CARRIER TIME RATHER THAN THE ACTUAL MODE AVAILABLE TO
HIM.
SPECIFICALLY, YOU ASK:
"1. IN VIEW OF THE GUIDELINES ESTABLISHED, IS THE TRAVELER ENTITLED
TO PER DIEM EXPENSES UNDER THE CIRCUMSTANCES DESCRIBED EVEN THOUGH
TRAVEL BY POA IS LESS THAN 1-1/2 HOURS?
"2. IF PER DIEM IS NOT PAYABLE, MAY THE TRAVELER BE PAID DAILY
COMMUTATION EXPENSES IN LIEU OF PER DIEM EVEN THOUGH SUCH EXPENSES WERE
NOT ACTUALLY INCURRED?"
YOU NOTE THAT SINCE MR. STEMPEL DID NOT TRAVEL BY PRIVATELY OWNED
AUTOMOBILE DURING THE WEEK OF JULY 7-10, 1970, YOU WILL REIMBURSE HIM
THE $39 PER DIEM FOR THAT WEEK WHICH IS INCLUDED IN THE EXCEPTION OF
$323.
5 U.S.C. 4109 IN PERTINENT PART STATES:
"(A) THE HEAD OF AN AGENCY, UNDER THE REGULATIONS PRESCRIBED UNDER
SECTION 4118(A)(8) OF THIS TITLE AND FROM APPROPRIATIONS OR OTHER FUNDS
AVAILABLE TO THE AGENCY, MAY -
"(1) PAY ALL OR A PART OF THE PAY (EXCEPT OVERTIME, HOLIDAY, OR NIGHT
DIFFERENTIAL PAY) OF AN EMPLOYEE OF THE AGENCY SELECTED AND ASSIGNED FOR
TRAINING UNDER THIS CHAPTER, FOR THE PERIOD OF TRAINING; AND
"(2) PAY, OR REIMBURSE THE EMPLOYEE FOR, ALL OR A PART OF THE
NECESSARY EXPENSES OF THE TRAINING, WITHOUT REGARD TO SECTION 529 OF
TITLE 31, INCLUDING AMONG THE EXPENSES THE NECESSARY COSTS OF -
"(A) TRAVEL AND PER DIEM INSTEAD OF SUBSISTENCE UNDER SUBCHAPTER I OF
CHAPTER 57 OF THIS TITLE OR, IN THE CASE OF COMMISSIONED OFFICERS OF THE
ENVIRONMENTAL SCIENCE SERVICES ADMINISTRATION, SECTIONS 404 AND 405 OF
TITLE 37, AND THE JOINT TRAVEL REGULATIONS FOR THE UNIFORMED SERVICES;"
THE SECOND PARAGRAPH OF SECTION 6.11 OF THE STANDARDIZED GOVERNMENT
TRAVEL REGULATIONS STATES:
"FOR CONTINUOUS TRAVEL OF 24 HOURS OR LESS, THE TRAVEL PERIOD WILL BE
REGARDED AS COMMENCING WITH THE BEGINNING OF THE TRAVEL AND ENDING WITH
ITS COMPLETION, AND FOR EACH 6-HOUR PORTION OF THE PERIOD, OR FRACTION
OF SUCH PORTION, ONE-FOURTH OF THE PER DIEM RATE FOR A CALENDAR DAY WILL
BE ALLOWED: PROVIDED, THAT NO PER DIEM WILL BE ALLOWED WHEN THE TRAVEL
PERIOD IS 10 HOURS OR LESS DURING THE SAME CALENDAR DAY, EXCEPT WHEN THE
TRAVEL PERIOD IS 6 HOURS OR MORE AND BEGINS BEFORE 6:00 A.M. OR
TERMINATES AFTER 8:00 P.M. (SEE SUBSECTIONS 6.9A AND C.)"
YOUR GUIDELINES APPEAR TO BE REASONABLE IN THE LIGHT OF LAW AND
REGULATIONS. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE
NEGATIVE. IN ANSWER TO YOUR SECOND QUESTION, WE WOULD NOT OBJECT UNDER
THE CIRCUMSTANCES TO PAYMENT OF THE COMMUTATION EXPENSES FOR THE DAYS
MR. STEMPEL REMAINED AT THE REGIONAL TRAINING CENTER.
B-169017, JUL 20, 1971
CONTRACT SPECIFICATIONS - COMPLIANCE WITH
DECISION ANSWERING REQUEST BY RALPH B. BLACK COMPANY, INC. THAT THE
CONTRACT SPECIFICATIONS BE COMPLIED WITH IN A CONTRACT FOR INSTALLATION
OF AUTOMATIC TRANSFER SWITCHES USED IN ILS SUPPORT FACILITIES
CONSTRUCTED UNDER A DEPARTMENT OF THE AIR FORCE CONTRACT AT CANNON AFB,
NEW MEXICO BY COLTON CONSTRUCTION COMPANY.
THE CONTRACT AS WRITTEN INCLUDED THE INSPECTION AND ACCEPTANCE CLAUSE
PRESCRIBED BY ASPR 7-602.11(B) WHICH PROVIDES THAT AN ADJUSTMENT IN
CONTRACT PRICE WILL BE MADE IF THE GOVERNMENT DEEMS IT IN THE PUBLIC
INTEREST TO ACCEPT THE MATERIAL WITHOUT ITS MEETING ALL SPECIFICATIONS.
THE RECORD FURNISHED BY THE AIR FORCE SHOWS THAT SUCH A DETERMINATION OF
PUBLIC INTEREST WAS MADE SINCE THE QUESTIONED SPECIFICATIONS WERE MINOR,
AND SINCE A REDUCTION IN THE CONTRACT PRICE HAD BEEN NEGOTIATED.
TO RALPH B. BLACK COMPANY, INC.:
WE REFER TO YOUR LETTER OF SEPTEMBER 2, 1970, AND ENCLOSURES,
REQUESTING THAT GOVERNMENT SPECIFICATIONS BE COMPLIED WITH IN THE
INSTALLATION OF AUTOMATIC TRANSFER SWITCHES USED IN ILS SUPPORT
FACILITIES, PROJECT NO. CA 50-9, CONSTRUCTED UNDER DEPARTMENT OF THE AIR
FORCE CONTRACT F29605-69-C-0094, AT CANNON AIR FORCE BASE, NEW MEXICO.
THE CONTRACTOR IS COLTON CONSTRUCTION COMPANY (COLTON), AND THE SWITCHES
WERE PROCURED UNDER A SUBCONTRACT WITH ZENITH CONTROLS, INC.
YOU MAINTAIN THAT THE CONTRACTOR HAS FAILED TO FURNISH EVIDENCE TO
THE GOVERNMENT THAT THE SWITCHES HAVE BEEN TESTED IN ACCORDANCE WITH THE
TEST REQUIREMENTS OF THE GOVERNMENT SPECIFICATION AND ARE IN COMPLIANCE
WITH THE SPECIFICATION STANDARDS.
AS WE INFORMALLY ADVISED YOU ON OCTOBER 7, 1970, COLTON ARRANGED WITH
THE MANUFACTURER OF THE AUTOMATIC TRANSFER SWITCHES TO HAVE THE SPECIFIC
MODEL OF SWITCHES USED ON THE PROJECT CERTIFIED BY A TESTING LABORATORY
AS MEETING THE CONTRACT REQUIREMENTS SET OUT IN SPECIFICATION PARAGRAPH
13-25B. THE PROCURING ACTIVITY STATES THAT THE LABORATORY REPORT ON
TESTS OF THE SWITCHES IS DEFICIENT IN THAT IT DOES NOT INCLUDE THREE OF
THE SPECIFICATION REQUIREMENTS. HOWEVER, THE PROCURING ACTIVITY STATES
THAT THE THREE REQUIREMENTS ARE MINOR ITEMS AND IT IS BELIEVED THAT HAD
THE TESTING PROCEDURE BEEN EXTENDED TO COVER SUCH REQUIREMENTS, WHICH
ARE IDENTIFIED AS CONTACT MILLI-VOLT DROP, CONTACT TEMPERATURE AND
OSCILLOGRAPH TRACE READINGS, THE SWITCHES WOULD HAVE MET THE
REQUIREMENTS. IN ADDITION, THE PROCURING ACTIVITY STATES THAT THE
SWITCHES HAVE BEEN INSTALLED AND HAVE BEEN FOUND TO BE ADEQUATE FOR THE
CONTRACT FACILITIES. THE CONTRACTING OFFICER THEREFORE DETERMINED THAT
IT WOULD BE IN THE PUBLIC INTEREST TO ACCEPT THE SWITCHES WITH AN
APPROPRIATE ADJUSTMENT IN THE CONTRACT PRICE FOR THE FAILURE OF THE
CONTRACTOR TO COMPLY WITH THE TEST REQUIREMENTS ON THE THREE MINOR
ITEMS.
THE RECORD MADE AVAILABLE TO OUR OFFICE BY THE DEPARTMENT OF THE AIR
FORCE SHOWS THAT THE CONTRACT INCLUDES THE INSPECTION AND ACCEPTANCE
CLAUSE PRESCRIBED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR)
7-602.11, PARAGRAPH (B) OF WHICH PROVIDES, IN PART, THAT THE CONTRACTOR
"SHALL, WITHOUT CHARGE, REPLACE ANY MATERIAL OR CORRECT ANY WORKMANSHIP
FOUND BY THE GOVERNMENT NOT TO CONFORM TO THE CONTRACT REQUIREMENTS
UNLESS IN THE PUBLIC INTEREST THE GOVERNMENT CONSENTS TO ACCEPT SUCH
MATERIAL OR WORKMANSHIP WITH AN APPROPRIATE ADJUSTMENT IN CONTRACT
PRICE."
IN LIGHT OF THE FOREGOING, THE CONTRACTING OFFICER COMMENCED
NEGOTIATIONS WITH THE CONTRACTOR, UNDER THE PROVISIONS QUOTED ABOVE FROM
THE INSPECTION AND ACCEPTANCE CLAUSE IN THE CONTRACT. PURSUANT TO THOSE
NEGOTIATIONS THE CONTRACT WAS AMENDED BY MODIFICATION NO. 6, WHEREBY THE
GOVERNMENT AGREED TO ACCEPT THE SWITCHES WITHOUT REQUIRING TEST READINGS
ON THE THREE MINOR SPECIFICATION REQUIREMENTS AND THE CONTRACTOR, IN
TURN, AGREED TO A REDUCTION OF $600 IN THE CONTRACT PRICE. THE
ADJUSTMENT INVOLVED IS REGARDED BY THE CONTRACTING OFFICER AND THE
COGNIZANT ENGINEER AS REASONABLE.
SINCE THE FOREGOING INDICATES THAT ACCEPTANCE OF THE SWITCHES AND
ADJUSTMENT OF THE CONTRACT PRICE HAS BEEN EFFECTED IN ACCORDANCE WITH
THE TERMS OF THE CONTRACT, AS AMENDED, FURTHER ACTION BY OUR OFFICE DOES
NOT APPEAR TO BE INDICATED.
B-171696, JUL 20, 1971
BID PROTEST - NEGOTIATED PROCUREMENT TECHNIQUE - COMPETITION
DECISION THAT THE NEGOTIATION TECHNIQUES EMPLOYED IN A PROCUREMENT
FOR DESIGN, DEVELOPMENT, INSTALLATION, TEST, AND EVALUATION OF A
PROTOTYPE REAL-TIME COMPUTERIZED POSTAL VEHICLE TRAFFIC CONTROL STATION
FROM COMPUTER IDENTICS CORPORATION UNDER AN RFP ISSUED BY THE BUREAU OF
RESEARCH AND ENGINEERING, WERE INCONSISTENT WITH THE CONCEPT OF
COMPETITIVE NEGOTIATION.
AFTER REVIEWING THE ADMINISTRATIVE REPORT ON THE PROTEST OF SYSTEMS
CONSULTANTS, INC., THE COMP. GEN. CONCLUDES THAT ADEQUATE CONSIDERATION
WAS NOT GIVEN TO COST IN DETERMINING WHICH OFFER WAS MOST ADVANTAGEOUS
TO THE GOVERNMENT, NOTWITHSTANDING THAT THE SUCCESSFUL OFFEROR'S
PROPOSAL WAS TECHNICALLY SUPERIOR TO THAT OFFERED BY PROTESTANT.
TO MR. POSTMASTER GENERAL:
BY LETTER DATED MARCH 10, 1971, WITH ENCLOSURES, THE DIRECTOR, OFFICE
OF CONTRACT PROGRAMS, RESEARCH & ENGINEERING DEPARTMENT, FURNISHED OUR
OFFICE AN ADMINISTRATIVE REPORT ON THE PROTEST OF SYSTEMS CONSULTANTS,
INC. (SYSCON), AGAINST THE AWARD OF A CONTRACT ON JANUARY 8, 1971, TO
COMPUTER IDENTICS CORPORATION (CIC) UNDER REQUEST FOR PROPOSALS 198-70
ISSUED BY THE BUREAU OF RESEARCH AND ENGINEERING.
FROM OUR REVIEW OF THE RECORD, WE CONCLUDE THAT THE NEGOTIATION
TECHNIQUES EMPLOYED IN THIS PROCUREMENT WERE INCONSISTENT WITH THE
CONCEPT OF "COMPETITIVE NEGOTIATION," AS REFLECTED IN SECTION 1-3.8042
OF THE FEDERAL PROCUREMENT REGULATIONS (FPR).
THE BASIC CIRCUMSTANCES IMPELLING THIS CONCLUSION ARE NOT IN DISPUTE.
OF THE 13 PROPOSALS RECEIVED IN RESPONSE TO THE SOLICITATION'S REQUEST
FOR COST-PLUS-FIXED-FEE PROPOSALS FOR THE DESIGN, DEVELOPMENT,
INSTALLATION, TEST, AND EVALUATION OF A PROTOTYPE REAL-TIME COMPUTERIZED
POSTAL VEHICLE TRAFFIC CONTROL STATION, IT WAS DETERMINED ON OCTOBER 8,
1970, BY THE CONTRACT AWARD REVIEW BOARD THAT THE PROPOSALS OF THE
FOLLOWING FOUR FIRMS LISTED IN ORDER OF MERIT, WERE ACCEPTABLE FOR
NEGOTIATIONS.
CIC $983,366
SPERRY SYSTEMS MANAGEMENT DIVISION $863,183
LABORATORY FOR ELECTRONICS CORPORATION (LEC) $816,730
SYSCON $783,398
THEREAFTER, FROM OCTOBER 13 THROUGH OCTOBER 20, 1970, TECHNICAL
DISCUSSIONS WERE HELD WITH EACH OFFEROR. ON OCTOBER 27, THE BOARD
RECONVENED AND CONSIDERED THE RESULTS OF THE TECHNICAL DISCUSSIONS. THE
BOARD RECOMMENDED THAT SYSCON NOT BE CONSIDERED FURTHER AND THAT A
CONTRACT BE AWARDED TO CIC AS SOON AS POSSIBLE. IT ALSO CONCLUDED THAT
LEC'S PROPOSAL WAS NOT TECHNICALLY SUPERIOR TO SPERRY'S PROPOSAL BUT
RECOMMENDED FURTHER DISCUSSIONS WITH THESE FIRMS ONLY IN THE EVENT THAT
A CONTRACT COULD NOT BE PLACED WITH CIC.
ON NOVEMBER 4, 5 AND 6, 1970, THE CONTRACT NEGOTIATOR VISITED THE
OFFICES OF EACH OFFEROR FOR THE PURPOSE OF REVIEWING THEIR FACILITIES.
IN ADDITION, DURING THE MONTH OF DECEMBER, THE CONTRACT NEGOTIATOR
RECEIVED PREVIOUSLY REQUESTED DEFENSE CONTRACT AUDIT AGENCY (DCAA)
REPORTS ON THE COST PROPOSALS OF EACH FIRM. AFTER STUDYING THE DCAA
REPORTS, THE CONTRACT NEGOTIATOR CONDUCTED PRICE NEGOTIATIONS SOLELY
WITH CIC, WHICH RESULTED IN A REDUCTION OF THE CIC TOTAL ESTIMATED COST
AND FIXED FEE TO $899,674. AWARD WAS MADE TO CIC ON JANUARY 8, 1971.
IN A LETTER OF JANUARY 26, 1971, THE ATTORNEY FOR SYSCON, IN SUPPORT
OF THE PROTEST TELEGRAM OF JANUARY 15, 1971, CONTENDED THAT THE AWARD
SHOULD HAVE BEEN MADE TO SYSCON SINCE ITS PROPOSAL WAS TECHNICALLY
ACCEPTABLE AND IT OFFERED THE LOWEST ESTIMATED COST.
WE HAVE RECOGNIZED THAT, IN THE CONTEXT OF COST-TYPE CONTRACTS OF A
RESEARCH AND DEVELOPMENT NATURE, COST NEED NOT BE CONTROLLING AND THAT,
IN DETERMINING WHICH OFFEROR CAN PERFORM IN A MANNER MOST ADVANTAGEOUS
TO GOVERNMENT, TECHNICAL AND OTHER FACTORS MAY BE CONSIDERED AND GIVEN
PREDOMINANCE. FROM OUR REVIEW OF THE RECORD, WE FIND NO BASIS TO
QUESTION THE DETERMINATION THAT THE CIC PROPOSAL WAS TECHNICALLY
SUPERIOR TO THE OTHERS RECEIVED, PARTICULARLY THE SYSCON PROPOSAL.
HOWEVER, IT IS ALSO CLEAR TO US THAT ADEQUATE CONSIDERATION WAS NOT
GIVEN TO COST IN DETERMINING WHICH OFFER WAS MOST ADVANTAGEOUS TO THE
GOVERNMENT. THE IMPORTANCE OF COST AND THE APPROACH THAT WE BELIEVE
SHOULD BE FOLLOWED WITH RESPECT TO COST IS INDICATED IN THE FOLLOWING
DECISIONS: 50 COMP. GEN. --- (B-171663, APRIL 19, 1971); 50 COMP. GEN.
___ (B-169148, OCTOBER 6, 1970); B-170633(1) AND (2), MAY 3, 1971;
B-171857, MAY 24, 1971; 50 COMP. GEN. ___ (B-167259, B-167003,
B-167846, AUGUST 19, 1970).
WHILE FURTHER ACTION BY OUR OFFICE AT THIS TIME WOULD NOT BE IN THE
BEST INTERESTS OF THE GOVERNMENT, WE DO BELIEVE THAT THE SITUATION IS OF
SUFFICIENT IMPORTANCE TO BRING IT TO YOUR ATTENTION.
B-171905, JUL 20, 1971
BID PROTEST - NEGOTIATIONS - COMPETITIVE RANGE
DECISION DENYING PROTEST AGAINST THE AWARD OF A CONTRACT TO SYLVANIA
ELECTRONICS SYSTEMS-WESTERN DIVISION, UNDER A SOLICITATION ISSUED BY THE
NAVAL SHIP SYSTEMS COMMAND FOR A QUANTITY OF RECEIVER SYSTEMS, DATA,
EQUIPMENT REPAIR PARTS, ENGINEERING SERVICES, TRAINING, AND AN OPTION
FOR ADDITIONAL RECEIVER SYSTEMS.
BECAUSE THE GOVERNMENT RESERVED THE RIGHT TO ACCEPT ANY QUOTATION
WITHOUT NEGOTIATIONS AND THE SOLICITATION CALLED FOR QUOTATIONS ON THE
MOST FAVORABLE TERMS FROM A COST AND TECHNICAL STANDPOINT, IT WOULD BE
UNREASONABLE TO ACCEPT PROTESTANT'S CONTENTION THAT THE REVISED
SPECIFICATIONS CONSTITUTED AN INVITATION TO TAKE EXCEPTIONS TO THE
SPECIFIED REQUIREMENTS.
FURTHER, WHERE THE PROCURING ACTIVITY DETERMINED PROTESTANT'S OFFER
CONTAINED MAJOR DEFICIENCIES IN TECHNICAL AND DESIGN APPROACHES, THE
COMP. GEN. WILL NOT OBJECT TO THE DECISION NOT TO CONDUCT NEGOTIATIONS
WITH PROTESTANT, ABSENT A SHOWING OF ARBITRARY ACTION.
TO LORAL ELECTRONIC SYSTEMS:
FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED FEBRUARY 12, 1971,
AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A
CONTRACT TO ANOTHER FIRM UNDER SOLICITATION NO. N00024-70-Q-3329,
ISSUED ON JANUARY 12, 1970, BY THE NAVAL SHIP SYSTEMS COMMAND,
WASHINGTON, D.C., FOR A QUANTITY OF AN/WRL-8(V2), AND AN/WRL-8(V3),
RECEIVER SYSTEMS, DATA, EQUIPMENT REPAIR PARTS, ENGINEERING SERVICES,
TRAINING, AND AN OPTION FOR ADDITIONAL RECEIVER SYSTEMS.
FOUR QUOTATIONS WERE RECEIVED BY THE CLOSING DATE ON MARCH 17, 1970.
HOWEVER, THE PROCURING ACTIVITY SUBSEQUENTLY DETERMINED THAT THE
TECHNICAL REQUIREMENTS OF THE RFQ WERE MORE STRINGENT THAN NECESSARY,
AND, THEREFORE, THE RFQ WAS REVISED TO INCORPORATE THE CHANGED
PROVISIONS.
EXHIBIT E OF THE REVISED SOLICITATION PROVIDED IN PERTINENT PART AS
FOLLOWS:
"EXCEPTIONS TO THE SPECIFICATIONS
"IDENTIFY ALL SPECIFICATION REQUIREMENTS CONCERNING THIS CATEGORY
WHICH THE CONTRACTOR DEEMS TO REQUIRE FURTHER AMPLIFICATION AND/OR
REVISIONS OR WHERE THE SPECIFIED REQUIREMENTS CANNOT BE MET. IDENTIFY
EACH ITEM SEPARATELY BY PARAGRAPH NUMBER, AND STATE THE PROPOSED CHANGE
OR ADDITION. PROVIDE A DETAILED DISCUSSION AND FULLY EXPLAIN THE NEED
FOR EACH EXCEPTION."
THE SOLICITATION ALSO PROVIDED THAT PROPOSALS MUST BE AT LEAST
ACCEPTABLE WITH REGARD TO EACH EVALUATION CATEGORY SET OUT THEREIN, AND
THAT ANY PROPOSAL DETERMINED TO BE UNACCEPTABLE IN ANY EVALUATION
CATEGORY MIGHT BE ELIMINATED FROM FURTHER CONSIDERATION.
OFFERORS WERE REQUESTED TO SUBMIT REVISED QUOTATIONS AND THREE
PROPOSALS, FROM YOUR CONCERN, FROM SYLVANIA ELECTRONICS SYSTEMS-WESTERN
DIVISION, AND FROM WATKINS-JOHNSON COMPANY, WERE RECEIVED BY THE CLOSING
DATE ON OCTOBER 19, 1970. SUBSEQUENTLY, THE PROPOSALS WERE EVALUATED BY
A PROPOSAL EVALUATION PANEL AND ITS RECOMMENDATIONS WERE REVIEWED BY A
CONTRACT AWARD PANEL. IT WAS DETERMINED THAT THE PROPOSALS OF SYLVANIA
AND WATKINS-JOHNSON, THE OTHER TWO OFFERORS, WERE WITHIN A COMPETITIVE
TECHNICAL RANGE. YOUR PROPOSAL WAS CONSIDERED UNACCEPTABLE BECAUSE IT
CONTAINED MAJOR EXCEPTIONS TO THE SPECIFICATIONS, OMISSIONS AND
INCONSISTENCIES.
YOU WERE ADVISED OF THIS DETERMINATION BY LETTER DATED DECEMBER 21,
1970, AS FOLLOWS:
"YOUR PROPOSAL FOR THE SUBJECT EQUIPMENT SUBMITTED IN RESPONSE TO
SOLICITATION N00024-70-Q-3329 HAS BEEN EVALUATED AND FOUND TECHNICALLY
UNACCEPTABLE ON THE FOLLOWING GROUNDS:
A) CONTROL/DISPLAY RACKS EXCEEDED SPECIFIED POWER REQUIREMENTS AND
HEAT DISSIPATION.
B) POWER AND CONTROL SIGNAL DISTRIBUTION UNITS NOT MEETING SPECIFIED
COOLING, PACKAGING, AND SYSTEM CONFIGURATION REQUIREMENTS.
C) EXCESSIVE WEIGHTS.
D) UNACCEPTABLE CONVERSION APPROACH."
IN VIEW OF THE DETERMINATION THAT YOUR PROPOSAL WAS UNACCEPTABLE,
NEGOTIATIONS WERE CONDUCTED ONLY WITH SYLVANIA AND WATKINS-JOHNSON, AND
A DECISION WAS SUBSEQUENTLY MADE TO ISSUE LETTER CONTRACT
N00024-71-C-1214 TO SYLVANIA.
YOU STATE THAT THE INFORMATION FURNISHED YOU BY THE NAVY IN ITS
DECEMBER 21 LETTER DOES NOT ESTABLISH THE PRECISE TECHNICAL REASONS FOR
THE REJECTION OF YOUR PROPOSAL AND THAT YOUR PROPOSAL MET ALL THE
REQUIREMENTS OF THE REVISED RFQ. YOU ALSO MAINTAIN THAT YOUR PROPOSAL
WAS CONSIDERABLY LOWER IN COST THAN SYLVANIA'S OFFER AND THAT SUCH
FACTOR WAS IGNORED BY THE NAVY. FURTHERMORE, YOU CONTEND THAT THE
ABOVE-QUOTED PROVISION OF EXHIBIT E OF THE REVISED RFQ INVITED
DEVIATIONS AND LED YOUR CONCERN TO BELIEVE THAT YOU WOULD BE AFFORDED
THE OPPORTUNITY TO CONFORM TO THOSE SPECIFICATIONS NOT PRECISELY ADHERED
TO.
WITH RESPECT TO THIS LAST CONTENTION, THE DEPARTMENT MAINTAINS THAT
THE PROVISION WAS INSERTED TO AID THE PROCURING ACTIVITY IN DETERMINING
THE TECHNICAL QUALITY OF THE PROPOSALS, AND NOT TO SUGGEST THAT THE
SPECIFICATIONS NEED NOT BE MET OR THAT NEGOTIATIONS WOULD BE
AUTOMATICALLY AFFORDED FOR THE PURPOSE OF DISCUSSING ANY DEVIATIONS FROM
THE SPECIFICATIONS. SINCE THE PROVISION IS RELATED TO EXCEPTIONS WHICH
THE CONTRACTOR NEEDS OR DEEMS TO BE REQUIRED, WE DO NOT AGREE WITH YOUR
CONTENTION THAT THE PROVISION CONSTITUTES AN INVITATION TO TAKE
EXCEPTIONS TO THE SPECIFIED REQUIREMENTS.
IN THIS REGARD, THE REVISED SOLICITATION ALSO PROVIDED THAT THE
GOVERNMENT RESERVED THE RIGHT TO ACCEPT ANY QUOTATION WITHOUT
NEGOTIATIONS AND THAT QUOTATIONS SHOULD BE SUBMITTED INITIALLY ON THE
MOST FAVORABLE TERMS FROM A COST AND TECHNICAL STANDPOINT. IN VIEW OF
THIS LATTER PROVISION, WE DO NOT BELIEVE THAT AN OFFEROR WOULD HAVE BEEN
JUSTIFIED IN INITIALLY OFFERING LESS THAN HIS "MOST FAVORABLE" TECHNICAL
PROPOSAL, OR IN ASSUMING THAT THE PROCURING ACTIVITY WOULD AUTOMATICALLY
AFFORD AN OFFEROR THE OPPORTUNITY TO REVISE A PROPOSAL WHICH DEPARTED
MATERIALLY FROM THE SPECIFIED REQUIREMENTS. ACCORDINGLY, WE PERCEIVE NO
BASIS IN THE SOLICITATION FOR QUESTIONING THE REJECTION, WITHOUT
NEGOTIATION, OF UNACCEPTABLE PROPOSALS.
REGARDING YOUR STATEMENT THAT YOUR PROPOSAL WAS CONSIDERABLY LOWER IN
COST THAN SYLVANIA'S OFFER, IT SHOULD BE NOTED THAT THE SOLICITATION
CONTEMPLATED THE AWARDING OF A COST-PLUS-INCENTIVE FEE TYPE OF CONTRACT,
AND THAT THE COSTS SET OUT IN THE PROPOSALS WERE ESTIMATES ONLY.
ADDITIONALLY, WE DO NOT FIND A SOUND BASIS FOR ATTACHING ANY
SIGNIFICANCE FAVORABLE TO YOUR PROTEST FROM A COMPARISON OF THE
ESTIMATED COST OF YOUR UNACCEPTABLE PROPOSAL WITH THAT OF AN ACCEPTABLE
PROPOSAL.
THE COMMAND HAS FURNISHED THIS OFFICE WITH ADDITIONAL DATA CONCERNING
THE TECHNICAL REASONS FOR REJECTION OF YOUR PROPOSAL. SINCE COMPLETE
DATA WAS ALSO FURNISHED YOUR FIRM, ONLY A FEW OF THE REASONS WILL BE
SHOWN HERE, AS FOLLOWS:
"CONTRACTOR INTERPRETED THE SPECIFIED VOLUME, WEIGHT AND POWER
DISSIPATION LIMITS FOR THE CONTROL/DISPLAY RACK INCONSISTENTLY. HE HAS
GIVEN VOLUME AND WEIGHT FOR THE COMPLETE CONTROL/DISPLAY RACK (NOWHERE
IS IT BROKEN DOWN TO INDIVIDUAL RACK BASIS); HOWEVER, SINCE HE HAS
EXCEEDED THE MAXIMUM SPECIFIED POWER DISSIPATION BY 663 WATTS FOR THE
CONTROL/DISPLAY RACK HE HAS CHOSEN TO INTERPRET THE SPECIFICATION TO
MEAN ALLOWABLE POWER FOR EACH RACK AT THE OPERATOR STATION. IT SHOULD
BE POINTED OUT THAT IT WOULD REQUIRE A SIGNIFICANT AMOUNT OF REDESIGN IN
THE INDIVIDUAL UNITS TO REDUCE THE POWER CONSUMPTION IN THIS RACK TO THE
ACCEPTABLE LIMIT.
"A MAJOR EXCEPTION AND/OR INCONSISTENCY IS IN THE AREA OF THE TWO (2)
FIVE-GUN DISPLAYS. THESE DISPLAYS ARE DISSIPATING 400 WATTS OF POWER,
45 WATTS/SQ. FT. OF SURFACE AREA. SPECIFICATION LIMITS THIS TO 10
WATTS/SQ. FT. FOR ANY UNIT.
"PARAGRAPH 3.1.8 OF THE EQUIPMENT SPECIFICATION IS CLEAR THAT UNIT
HEAT DISSIPATION SHALL NOT EXCEED 10 WATTS PER SQUARE FOOT. ALTHOUGH
PARAGRAPH 3.12 OF MIL-E-16400F IS REFERENCED IN PARAGRAPH 3.1.8.2 OF THE
EQUIPMENT SPECIFICATION THERE IS NO INDICATION IN THE EQUIPMENT
SPECIFICATION THAT USE OF THE METHODS FOR AIR COOLING SET FORTH IN
MIL-E-16400F PERMITS DEVIATION FROM THE 'NOT TO EXCEED' VALUE SET FORTH
IN PARAGRAPH 3.1.8 OF THE EQUIPMENT SPECIFICATION.
"THE WEIGHTS OF TWELVE (12) OUT OF THIRTY-FIVE (35) UNITS EXCEED
THOSE SPECIFIED. ALTHOUGH THE WEIGHTS SPECIFIED FOR UNITS OF THE
AN/WLR-8 WERE ROUND NUMBERS, THESE VALUES WERE NOT 'MERE ESTIMATES'.
THESE WEIGHTS WERE FIRM, 'NOT TO EXCEED' VALUES IMPOSED TO MEET STRICT
END-USER REQUIREMENTS. THERE IS NO AMBIQUITY IN THE APPLICABLE
SPECIFICATION PARAGRAPH 3.1.9.3.2 WHICH STATES, 'UNITS SHALL NOT EXCEED
THE WEIGHTS ... '.
"CONTRACTOR HAS TAKEN MAJOR EXCEPTION TO SPECIFIED DEPTH REQUIREMENT
FOR THE CONTROL/DISPLAY RACK AND REMOTE RACK. THE POWER DISTRIBUTION
BOX HE HAS ADDED ON THE BACK OF THIS RACK WILL NOT ALLOW A 6-INCH
CLEARANCE AT REAR. DEPTH IS 26-INCHES, NOT THE SPECIFIED 22-INCHES.
ALSO, THE POSITION OF THIS BOX ON THE REMOTE RACK DOES NOT ALLOW
SUFFICIENT SPACE FOR ADDITION OF EXHAUST VENTS AT TOP-REAR IF HE WERE TO
ADD THEM (THEY ARE NEEDED SINCE HE DOES USE A BLOWER).
"MAJOR OMISSION MADE IN PROPOSAL ON DISCUSSION OF CONTROL SIGNAL
J-BOX WHICH HE HAS ADDED. AS SHOWN IN SYSTEM FUNCTIONAL BLOCK DIAGRAM,
UNIT WOULD REQUIRE ACTIVE DEVICES TO ACCOMPLISH FAN-OUT OF CONTROL
SIGNALS DEPICTED. NO WHERE IS THERE VOLUME, OR WEIGHT ALLOWANCES FOR
THIS UNIT, THERE IS AN APPRECIABLE NUMBER OF CONNECTORS REQUIRED.
"THE REQUIREMENT FOR INDEPENDENT TUNER OPERATION IS SEVERELY
COMPROMISED AS A RESULT OF THE JUNCTION-BOX APPROACH PROPOSED FOR
PRIMARY POWER LINE EMI AND TRANSIENT VOLTAGE PROTECTION. THIS APPROACH
WILL EVENTUALLY LEAD TO NON-CONFORMANCE OF THE TUNER UNITS TO THE
SPECIFIED EMI REQUIREMENTS.
"THE REVISED CONVERSION APPROACH PROPOSED FOR THE UPPER THREE BANDS
IS ESSENTIALLY THE SAME AS THE UNACCEPTABLE CONVERSION SCHEME PROPOSED
IN THE ORIGINAL WATKINS-JOHNSON PROPOSAL; AS A CONSEQUENCE, THIS
TECHNIQUE SUFFERS FROM SIMILAR OBJECTIONABLE FEATURES, SUCH AS: POOR
APPROACH IN LIGHT OF EXTERNAL L.O. OPERATION, RELATIVELY COMPLEX
ALIGNMENT FEATURES AND EXTREMELY HIGH CONVERTER UNIT NOISE FIGURE. DUE
TO THE EXCESSIVE CONVERTER NOISE-FIGURE, THE RESULTANT SYSTEM NOISE
FIGURE DURING BYPASS OPERATION (APPROXIMATELY 41 DB) IS OF SUCH A
MAGNITUDE AS TO COMPLETELY NULLIFY THE OPERATIONAL BACKUP-INTENT OF THE
RF BYPASS MODE. THESE UNDESIRABLE FEATURES CONSTITUTE UNACCEPTABLE
CONVERTER UNIT DEGRADATION.
"IN LIGHT OF THE DESIGN APPROACH PROPOSED BY OTHER CONTRACTORS AND
DUE TO THE LACK OF SUPPORTING DATA AND TO EXISTING CONTRADICTORY DEVICE
PERFORMANCE DATA, THE PROPOSED RF APPROACH IN THE LOW BAND TUNER
CONSTITUTES EITHER A HIGH RISK TECHNICAL APPROACH, OR A REQUIREMENT FOR
STATE-OF-THE-ART PRODUCT DEVELOPMENT."
ASPR 3-805.1(A) REQUIRES THAT AFTER RECEIPT OF INITIAL PROPOSALS,
WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE
OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND
OTHER FACTORS INCLUDING TECHNICAL QUALITY WHERE APPROPRIATE, CONSIDERED.
"OTHER FACTORS" HAS BEEN HELD TO INCLUDE THE TECHNICAL ACCEPTABILITY OF
PROPOSALS. 46 COMP. GEN. 606 (1967). PARTICULARLY WITH RESPECT TO
TECHNICAL CONSIDERATIONS, WE RECOGNIZE THAT A REASONABLE DEGREE OF
ADMINISTRATIVE DISCRETION IS PERMISSIBLE IN DETERMINING WHETHER A
PROPOSAL IS WITHIN THE COMPETITIVE RANGE. B-163024, AUGUST 27, 1968.
ALSO, IT IS OUR POLICY NOT TO QUESTION SUCH ADMINISTRATIVE
DETERMINATIONS IN THE ABSENCE OF A CLEAR SHOWING OF ARBITRARY ABUSE OF
DISCRETION. 48 COMP. GEN. 314 (1968).
IN THE INSTANT CASE THE PROCURING ACTIVITY DETERMINED THAT YOUR OFFER
CONTAINED MAJOR DEFICIENCIES IN TECHNICAL AND DESIGN APPROACHES, AND OUR
REVIEW OF THE RECORD SHOWS THAT YOUR PROPOSAL WAS EVALUATED IN A MANNER
CONSISTENT WITH THE EVALUATION OF THE PROPOSALS OF THE OTHER OFFERORS.
WE DO NOT CONSIDER THAT YOU HAVE PRESENTED A CLEAR SHOWING THAT THE
AGENCY WAS ARBITRARY IN REJECTING YOUR PROPOSAL, AND SINCE WE DO NOT
POSSESS THE DEGREE OF TECHNICAL COMPETENCE TO CATEGORICALLY STATE THAT
YOUR PROPOSAL WAS WITHIN A COMPETITIVE RANGE OF THE OTHER PROPOSALS, OR
THAT THE DEFICIENCIES IN YOUR PROPOSAL WERE MERELY MINOR MATTERS WHICH
SHOULD HAVE BEEN RESOLVED IN NEGOTIATIONS, WE WILL NOT OBJECT TO THE
AGENCY'S DECISION NOT TO CONDUCT NEGOTIATIONS WITH YOUR FIRM. SEE
B-168190, FEBRUARY 24, 1970, AND B-171030, JUNE 22, 1971.
FOR THE REASONS SET FORTH ABOVE, YOUR PROTEST IS DENIED.
B-172094, JUL 20, 1971
CIVILIAN EMPLOYEE - CHANGE OF STATION - SPECIAL SERVICES - MISCELLANEOUS
EXPENSES
AN ADVANCE DECISION CONCERNING THE CLAIM BY GERALD R. LATIMER, AN
EMPLOYEE OF THE BUREAU OF RECLAMATION, FOR EXPENSES FOR EXTRA SERVICES
IN THE MOVEMENT OF HIS MOBILE HOME IN CONNECTION WITH A PERMANENT CHANGE
OF STATION.
CHARGES FOR DISASSEMBLING AND REASSEMBLING OF THE MOBILE HOME IN
CONNECTION WITH CLAIMANT'S MOVE MUST BE CONSIDERED AS CHARGES FOR
"SPECIAL SERVICES", REIMBURSEMENT OF WHICH ARE PRECLUDED BY SECTION
9.3A(3) OF OMB CIR. NO. A-56. SIMILARLY, THE RENTAL OF AXLES, HITCHES,
AND TIRES ARE COSTS INCIDENT TO THE PREPARATION OF THE MOBILE HOME FOR
MOVEMENT AND THUS ARE NOT REIMBURSABLE.
HOWEVER, SINCE THE ABOVE WERE NECESSARY EXPENSES INCIDENT TO THE
RELOCATION OF CLAIMANT'S MOBILE HOME, THEY MAY BE CONSIDERED
MISCELLANEOUS EXPENSES UNDER SECTION 3 OF THE CIRCULAR.
TO MR. HAROLD J. FARRALL:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 3, 1971, REFERENCE
7-360, AND ENCLOSURES, IN WHICH YOU REQUEST AN ADVANCE DECISION IN
REGARD TO A CLAIM SUBMITTED BY MR. GERALD R. LATIMER, AN EMPLOYEE OF
YOUR AGENCY, FOR EXPENSES INCURRED FOR EXTRA SERVICES IN THE MOVEMENT OF
HIS MOBILE HOME IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION.
BY TRAVEL AUTHORIZATION DATED OCTOBER 14, 1970, MR. LATIMER WAS
AUTHORIZED TO TRAVEL FROM CUSTER, SOUTH DAKOTA, TO DENVER, COLORADO. A
HOUSE TRAILER FOR USE AS A RESIDENCE WAS AUTHORIZED TO BE TRANSPORTED BY
COMMERCIAL CARRIER AT GOVERNMENT EXPENSE.
THE RECORD DISCLOSES THAT THE CLAIMANT HAS BEEN REIMBURSED FOR THE
ACTUAL COST OF TRANSPORTING HIS MOBILE HOME BY COMMERCIAL CARRIER TO HIS
NEW DUTY STATION. HOWEVER, DUE TO THE UNUSUAL SIZE OF HIS DOUBLE-WIDE
MOBILE HOME (24 FEET BY 64 FEET) CONSISTING OF TWO SECTIONS SET ON
BLOCKS HE HAD TO PAY FOR TAKING THE TWO HALVES APART. IN ADDITION, THE
TWO SECTIONS HAD TO BE SEALED FOR MOVEMENT ON THE HIGHWAY AND TO PROTECT
HIS FAMILY'S BELONGINGS WHILE ON THE ROAD AND WHILE WAITING FOR HIS
MOBILE HOME TO BE SET UP AT HIS NEW STATION. A LARGE SECTION OF THE
ROOF HAD TO BE REMOVED IN ORDER TO DETACH BOLTS LOCATED ALONG THE TOP
AND ALSO AT THE BOTTOM OF THE TRAILER. ALSO, AXLES AND WHEELS HAD TO BE
RENTED AND HAULED FROM THE FACTORY AT LOVELAND, COLORADO, TO CUSTER,
SOUTH DAKOTA, IN ORDER TO TRANSPORT THE TRAILER ALONG THE HIGHWAY. UPON
ARRIVAL IN DENVER, THE TWO HALVES OF THE MOBILE HOME HAD TO BE
REASSEMBLED AND CARPETING WHICH HAD BEEN CUT FOR PURPOSES OF MOVING HAD
TO BE SEWN AND RELAID WHEN THE TRAILER WAS REASSEMBLED.
YOU REPORT THAT THE EXPENSES INCURRED BY THE EMPLOYEE WHICH ARE
SUPPORTED BY RECEIPTS ARE AS FOLLOWS:
LABOR AND MATERIAL TO TAKE UNITS APART AND SEAL THE ENDS $28
RENTAL OF 6 AXLES, 2 HITCHES, AND 14 TIRES 7
LABOR AND MILEAGE TO HAUL AXLES, HITCHES, AND TIRES FROM
LOVELAND (NEAR DACONO) TO CUSTER, SOUTH DAKOTA 8
LABOR AND MATERIAL TO PUT UNITS TOGETHER AT DACONO 37
LABOR TO RELAY CARPET IN REASSEMBLED HOME 2
COMBINED AMOUNT $83
YOU FURTHER STATE THAT REIMBURSEMENT UNDER SECTION 3, ALLOWANCE FOR
MISCELLANEOUS EXPENSES, OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO.
A-56, REVISED JUNE 26, 1969, WAS NOT MADE BECAUSE MR. LATIMER'S
BIWEEKLY SALARY OF $472.80 WOULD LIMIT REIMBURSEMENT TO ONLY ABOUT 50
PERCENT OF HIS EXPENSES. INSTEAD, YOU REIMBURSED HIM $200 TO COVER
MINOR MISCELLANEOUS EXPENSES. YOU STATE, HOWEVER, THAT IF HE CANNOT BE
REIMBURSED UNDER THE PROVISIONS OF SECTION 9 OF THE CIRCULAR FOR THE
EXTRA EXPENSES INCURRED IN MOVING HIS MOBILE HOME, THEN RECONSIDERATION
WILL BE GIVEN TO REIMBURSEMENT OF AN ADDITIONAL AMOUNT UNDER THE
PROVISIONS OF SECTION 3.
THE COMPUTATION OF ALLOWANCES WHEN A HOUSE TRAILER IS TRANSPORTED BY
A COMMERCIAL CARRIER IS CONTAINED IN SECTION 9.3A OF OFFICE OF
MANAGEMENT AND BUDGET CIRCULAR NO. A-56. SECTION 1.2G DEFINES "HOUSE
TRAILER" AS MEANING ALL TYPES OF MOBILE DWELLINGS CONSTRUCTED FOR USE AS
A RESIDENCE AND DESIGNED TO BE MOVED OVERLAND, EITHER SELF-PROPELLED OR
BY TOWING. SECTION 9.3A PROVIDES AS FOLLOWS:
"A. WHEN A HOUSE TRAILER IS TRANSPORTED BY A COMMERCIAL CARRIER,
"(1) THE ALLOWANCE SHALL INCLUDE THE CARRIER'S CHARGES FOR ACTUAL
TRANSPORTATION OF THE TRAILER IN AN AMOUNT NOT EXCEEDING THE APPLICABLE
TARIFF AS APPROVED BY THE INTERSTATE COMMERCE COMMISSION (OR APPROPRIATE
STATE REGULATORY BODY FOR INTRASTATE MOVEMENTS) FOR TRANSPORTATION OF A
TRAILER OF THE SIZE AND TYPE INVOLVED FOR THE DISTANCE INVOLVED,
COMPUTED AS PROVIDED IN SECTION 9.2.
"(2) THE ALLOWANCE ALSO SHALL INCLUDE FERRY FARES AND BRIDGE, ROAD,
AND TUNNEL TOLLS, TAXES, CHARGES OR FEES FIXED BY A STATE OR MUNICIPAL
AUTHORITY FOR PERMITS TO TRANSPORT HOUSE TRAILERS IN OR THROUGH ITS
JURISDICTION, SIMILAR CHARGES IMPOSED BY A CANADIAN JURISDICTION FOR A
TRAILER BEING TRANSPORTED BETWEEN ALASKA AND THE CONTINENTAL UNITED
STATES, AND CARRIERS' SERVICE CHARGES FOR OBTAINING NECESSARY PERMITS.
"(3) ALLOWANCES SHALL NOT INCLUDE COSTS OF PREPARING TRAILERS FOR
MOVEMENT, MAINTENANCE, REPAIRS, STORAGE, INSURANCE FOR VALUATION OF
TRAILERS ABOVE CARRIERS' MAXIMUM RESPONSIBILITY, NOR CHARGES DESIGNATED
IN THE TARIFFS AS 'SPECIAL SERVICE.'"
THE REPORTED CHARGES FOR DISASSEMBLING AND REASSEMBLING THE
CLAIMANT'S MOBILE HOME (TAKING APART THE TWO SECTIONS AND SEALING THE
ENDS, $282.52; PUTTING THE TWO SECTIONS TOGETHER, $370; AND SEWING AND
RELAYING THE CARPET, $25) ARE "SPECIAL SERVICES" AS CONTAINED IN THE
MOBILE HOUSING CARRIERS CONFERENCE, INC., FREIGHT TARIFF NO. 10-B,
MF-I.C.C. NO. 14. RULE 170 THEREOF, SPECIAL SERVICES, INCLUDES SUCH
SPECIAL SERVICES AS "ASSEMBLE OR DISASSEMBLE TRAILER OR ADDITIONS
THERETO."
THEREFORE, WE ARE OF THE OPINION THAT THE CHARGES FOR DISASSEMBLING
AND REASSEMBLING OF THE MOBILE HOME IN CONNECTION WITH THE MOVE MUST BE
CONSIDERED AS CHARGES FOR PREPARING THE HOME FOR MOVEMENT OR "SPECIAL
SERVICE" CHARGES REIMBURSEMENT OF WHICH ARE PRECLUDED BY SECTION 9.3A(3)
OF CIRCULAR NO. A-56. SEE B-164057, JUNE 5, 1968; B-162634, JANUARY 9,
1968; B-160630, JANUARY 23, 1967; AND B-156315, JULY 21, 1966; COPIES
HEREWITH. SEE ALSO 47 COMP. GEN. 107 (1967) AND 44 COMP. GEN. 619
(1965).
SIMILARLY, THE RENTAL OF THE AXLES, HITCHES, AND TIRES AND THE COST
OF MOVING THEM FROM LOVELAND TO CUSTER ARE ALSO COSTS INCIDENT TO THE
PREPARATION OF THE CLAIMANT'S MOBILE HOME FOR MOVEMENT AND HENCE ARE
SPECIFICALLY EXCLUDED FROM REIMBURSEMENT UNDER SECTION 9.3A(3).
IN REGARD TO YOUR RECONSIDERATION OF THE AMOUNT OF THE MISCELLANEOUS
EXPENSES ALLOWANCE PAYABLE TO MR. LATIMER, SINCE THE ITEMS PREVIOUSLY
ENUMERATED WERE NECESSARY EXPENSES INCIDENT TO THE RELOCATION OF HIS
MOBILE HOME, IT WOULD APPEAR THAT THEY MAY BE CONSIDERED AS
MISCELLANEOUS EXPENSES UNDER SECTION 3 OF THE CIRCULAR. SEE OUR
DECISIONS B-168109, NOVEMBER 14, 1969; B-166247, MARCH 13, 1969; AND
B-164357, JULY 1, 1968; COPIES ENCLOSED.
THE RECLAIM VOUCHER AND SUPPORTING PAPERS ARE RETURNED HEREWITH FOR
HANDLING IN ACCORDANCE WITH THE FOREGOING.
B-172241, JUL 20, 1971