B-159384, JUL. 22, 1966
TO ITT EXPORT CORPORATION:
REFERENCE IS MADE TO YOUR LETTER OF MAY 26, 1966, REQUESTING
RECONSIDERATION OF THE PARTIAL DISALLOWANCE OF YOUR CLAIM FOR $20,978,
WHICH REPRESENTS THE AMOUNT ALLEGEDLY DUE YOU FOR SERVICES PERFORMED
UNDER CONTRACT NO. FA-WA-4346, THAT INVOLVED THE SUPPLY AND INSTALLATION
OF AN AUTOMATIC TELEPHONE SYSTEM AT THE KIMPO AIRPORT CONTROL TOWER,
SEOUL, KOREA. THE TWO ITEMS IN QUESTION, WITH THE RATES TO BE PAID, ARE
DESCRIBED BELOW.
CHART
UNIT ITEM TITLE
QUANTITY PRICE EXTENSION ----- -----
---------
2 TECHNICIAN FIELD SERVICES FOR
INSTALLATION OF EQUIPMENT MAN-DAYS MAN-DAY
THREE MEN FOR A TOTAL OF .... 480 $17 $8,160
3 SUPERVISORY INSTALLATION
FIELD SERVICES, FOR
INSTALLATION OF EQUIPMENT
ONE MAN FOR A TOTAL OF ...... 160 $21 $3,488
ONE MAN-DAY WAS CONTRACTUALLY DEFINED AS "EIGHT (8) HOURS OF WORK IN
ONE DAY BY ONE EMPLOYEE OF THE CONTRACTOR.'
THE CONTRACT, ENTERED INTO ON MAY 29, 1963, WAS TO BE ORIGINALLY
COMPLETED IN 180 DAYS, OR BY NOVEMBER 23, 1963; HOWEVER, IN OCTOBER
1963, YOU REQUESTED A 60-DAY EXTENSION DUE TO FIELD DIFFICULTIES
ENCOUNTERED IN CONNECTION WITH LOCAL KOREAN LABOR. THE EQUIPMENT AND
INSTALLATION WERE COMPLETED AND ACCEPTED DURING THE MONTH OF APRIL 1964
BUT DURING THE LATTER PART OF 1964 YOU WERE ADVISED THAT A RETEST WOULD
BE REQUIRED. ON APRIL 16, 1965, THE CONTRACT WAS FINALLY ACCEPTED.
THE RECORD INDICATES THAT ON SEPTEMBER 24, 1965, YOU WERE PAID IN
FULL FOR THE EQUIPMENT AND PERSONNEL TRAVEL (ITEMS NOS. 1 AND 4 OF THE
CONTRACT) AND THAT YOU FILED A CLAIM FOR ADDITIONAL COMPENSATION WITH
THIS OFFICE PURSUANT TO THE CONTRACTING OFFICER'S INSTRUCTION. THE
FOLLOWING IS A LIST OF PERSONNEL YOU ASSIGNED TO THE CONTRACT AND THE
AMOUNTS ALLEGEDLY DUE UNDER ITEMS NOS. 2 AND 3.
CHART
DAYS
NAME WORKED PER DIEM TOTAL DOLLARS
---- ------- -------- ------------- C.
$92 $12,788 W. ROQUE 10
760 L. A. NORWICH 66 76
17 76 1,292 CHI ILL NAM
17 1,122
-------
TOTALS FOR ITEMS NOS. 2 AND 3 $20,978
--------
ON JUNE 26, 1963, YOU SIGNED AN AMENDMENT TO THE CONTRACT WHICH
CONTAINED THE FOLLOWING STATEMENT:
"ITEM 2 - TECHNICIAN FIELD SERVICES:
UNDER THE DESCRIPTION, DELETE "THREE (3) MEN FOR A TOTAL OF.'
CHANGE THE QUANTITY, UNIT PRICE AND EXTENSION COLUMNS TO READ AS
FOLLOWS:
CHART
QUANTITY UNIT PRICE EXTENSION
-------- ---------- ---------
EST. TOTAL $17.00 PER NOT TO EXCEED
MAN DAYS MAN DAY $8,160.00
480
"ITEM 3 - SUPERVISORY INSTALLATION FIELD SERVICES:
UNDER THE DESCRIPTION, DELETE "ONE (1) MAN FOR A TOTAL OF.'
CHANGE THE QUANTITY, UNIT PRICE, AND EXTENSION COLUMNS TO READ AS
FOLLOWS:
CHART
QUANTITY UNIT PRICE EXTENSION
-------- ---------- ---------
EST. TOTAL $21.00 PER NOT TO EXCEED
MAN DAYS MAN DAY $3,488.00
160
"EXCEPT AS HEREBY AMENDED, ALL OTHER TERMS AND CONDITIONS OF THE
CONTRACT REMAIN UNCHANGED.'
SETTLEMENT CERTIFICATE NO. 93538, DATED APRIL 18, 1966, DISALLOWED A
PORTION OF THE CLAIM AMOUNTING TO $15,356, AND ALLOWED PAYMENT FOR FOUR
TECHNICIANS, COVERING 159 DAYS, AT $17 PER DAY, AND ONE SUPERVISOR FOR
139 DAYS, AT $21 PER DAY, TOTALING $5,622.
THE GENERAL RULE WITH RESPECT TO THE PERFORMANCE OF CONTRACTS IS THAT
IF A PARTY, BY HIS CONTRACT, CHARGE HIMSELF WITH AN OBLIGATION POSSIBLE
TO BE PERFORMED, HE MUST MAKE IT GOOD, UNLESS ITS PERFORMANCE IS
RENDERED IMPOSSIBLE BY THE ACT OF GOD, THE LAW, OR THE OTHER PARTY, AND
UNFORESEEN DIFFICULTIES, HOWEVER GREAT, WILL NOT EXCUSE HIM. IN THIS
CONNECTION, SEE FRITZ-RUMER-COOKE CO. V. UNITED STATES, 279 F.2D 200,
AND THE ARUNDEL CORPORATION V. UNITED STATES, 121 CT.CL. 741.
IT IS ALSO WELL SETTLED THAT A WRITTEN CONTRACT IS PRESUMED TO
EXPRESS THE INTENTION OF THE PARTIES TO IT, AND IF IT IS CLEAR AND
UNAMBIGUOUS ON ITS FACE IT MAY NOT BE CHALLENGED FOR UNCERTAINTY, AND
WILL BE ENFORCED AS WRITTEN. BRAWLEY V. UNITED STATES, 96 U.S. 168.
THIS PRESUMPTION, HOWEVER, MAY BE REBUTTED BY A SHOWING THAT THE
CONTRACT AS WRITTEN DID NOT EXPRESS THE TRUE INTENTION OF THE PARTIES.
MACDOUGALD CONSTRUCTION COMPANY V. UNITED STATES, 122 CT.CL. 210.
IN THE INSTANT CASE THE REQUEST FOR PROPOSALS CLEARLY CALLED FOR A
MAN-DAY BID AND THE FACT, AS YOU ALLEGE, THAT YOU WERE "COMPELLED" TO
ARRIVE AT THE "UNREALISTIC" SUMS OF $17 AND $21 PER MAN-DAY BY SELECTING
160 MAN-DAYS WITHIN WHICH TO PERFORM THE CONTRACT, AND DIVIDING THAT
INTO YOUR LUMP-SUM BID, CANNOT OPERATE TO RELIEVE YOU OF YOUR OBLIGATION
TO PERFORM AT THE RATES AGREED UPON. WHILE YOU MAY HAVE HAD SOME
RESERVATIONS CONCERNING THE DAILY RATE TO BE PAID UNDER THE TWO
ITEMS, AS REFLECTED IN YOUR JUNE 14, 1963, LETTER TO FEDERAL AVIATIO
AGENCY, YOU CANNOT LOGICALLY CONTEND THAT THERE WAS A LACK OF
UNDERSTANDING BETWEEN THE CONTRACTING PARTIES, BECAUSE THE PRICE CLAUSES
OF THE CONTRACT WERE DEALT WITH ON TWO SEPARATE OCCASIONS, AND WERE
CHALLENGED ON NEITHER. THE ONLY CONCLUSION THAT CAN BE DRAWN FROM YOUR
CONCURRENCE WITH THE AMENDMENT IS THAT YOU AGREED TO THE TERMS STATED
THEREIN. LIKEWISE, THE CLAIM CANNOT BE PREDICATED UPON THE FACT THAT IT
WAS TO COVER AN ADDITIONAL PERIOD OF TIME BECAUSE YOUR ABOVE-MENTIONED
REQUEST TO EXTEND THE TIME FOR PERFORMANCE WAS ADMINISTRATIVELY DENIED.
THEREFORE, YOU ARE ENTITLED TO BE PAID ONLY AT THE RATE REFLECTED IN
THE AMENDMENT AND, ACCORDING TO YOUR FIGURES, THAT SUM IS $5,622, WHICH
WAS REMITTED TO YOU PURSUANT TO THE SETTLEMENT CERTIFICATE.
B-118417, JUL. 21, 1966
TO MR. REINALDO S. BERTULFO:
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 14, 1966,
CONCERNING YOUR CLAIM FOR ARREARS OF PAY FOR SERVICE IN THE PHILIPPINE
SCOUTS AND THE ARMY OF THE UNITED STATES FROM MARCH 1942 TO JANUARY
1946, BASED ON YOUR BELIEF THAT YOU WERE ENTITLED TO THE PAY OF THE
GRADE OF SPECIALIST, FIFTH CLASS, DURING THAT PERIOD. YOU STATE THAT
YOU "HAVE NEVER RECEIVED ANY PAYMENT" SINCE YOU FIRST WROTE THE ADJUTANT
GENERAL OF THE ARMY CONCERNING THIS MATTER IN 1950.
OUR RECORDS SHOW THAT UNDER DATE OF SEPTEMBER 28, 1953, OUR CLAIMS
DIVISION INFORMED YOU THAT YOUR PAY RECORDS SHOWED THAT YOU WERE
PROPERLY PAID ALL THE SPECIALIST PAY TO WHICH YOU WERE ENTITLED FROM THE
DATE OF AWARD OF YOUR SPECIALIST, FIFTH CLASS, RATING ON MARCH 1, 1942,
TO THE DATE OF ITS DISCONTINUANCE ON JUNE 24, 1942. IN SETTLEMENT OF
APRIL 23, 1954, YOU WERE INFORMED THAT UNDER THE PROVISIONS OF WAR
DEPARTMENT CIRCULAR NO. 204, JUNE 24, 1942, SPECIALISTS OF THE FIFTH AND
SIXTH CLASS WERE DISRATED AND IT WAS THERE PROVIDED THAT THE PERSONS
CONCERNED WOULD BE PAID ACCORDING TO THEIR GRADES OF PRIVATE FIRST CLASS
AND PRIVATE. YOU WERE FURTHER INFORMED THAT THE DISALLOWANCE OF YOUR
CLAIM WAS BASED ON ACTION TAKEN BY THE DEPARTMENT OF THE ARMY UNDER THE
MISSING PERSONS ACT OF 1942, CH. 166, 56 STAT. 143, AS AMENDED, 50
U.S.C.APP. 1001, IN WHICH IT WAS DETERMINED THAT YOUR GRADE AFTER JUNE
24, 1942, WAS THAT OF PRIVATE FIRST CLASS. SINCE SECTION 9 OF THAT ACT,
AS AMENDED, PROVIDES THAT "ALL SUCH DETERMINATIONS SHALL BE CONCLUSIVE,"
WE ARE WITHOUT AUTHORITY TO QUESTION THE DETERMINATION THAT YOUR GRADE
AFTER JUNE 24, 1942, WAS THAT OF PRIVATE FIRST CLASS.
FOLLOWING THE ENACTMENT OF PUB.L. 85-217, AUGUST 29, 1957, 71 STAT.
491--- SECTION 1 (B) OF WHICH AMENDED SECTION 2 OF THE MISSING PERSONS
ACT SO AS TO AUTHORIZE ADDITIONAL BENEFITS TO MEMBERS OF THE PHILIPPINE
SCOUTS WHO WERE CAPTURED DURING WORLD WAR II AND WERE PERMITTED TO
RETURN TO THEIR HOMES AND ENGAGE IN CIVILIAN PURSUITS PRIOR TO THE
TERMINATION OF THE JAPANESE OCCUPATION OF THE PHILIPPINE ISLANDS--- YOU
SUBMITTED A CLAIM UNDER THAT ACT. IN SUCH CLAIM YOU REQUESTED THAT
PAYMENT INCLUDE "MY FIFTH CLASS, SPECIALIST RATING" BACK PAY "DURING MY
SERVICES IN THE ARMY OF THE UNITED STATES," ADDING THAT "I WAS NOT PAID
MY SPECIALIST FIFTH CLASS FROM 25 APRIL 1945 UNTIL MY DISCHARGE ON THE
21ST OF JANUARY 1946.' IN CONNECTION WITH SUCH CLAIM THE DEPARTMENT OF
THE ARMY MADE A REDETERMINATION UNDER THE MISSING PERSONS ACT SHOWING,
AMONG OTHER THINGS, THAT YOUR GRADE FROM JUNE 25, 1942, TO APRIL 24,
1945, WAS PRIVATE FIRST CLASS AND THAT YOU HAD AN ENLISTED STATUS IN THE
ARMY OF THE UNITED STATES FROM APRIL 25, 1945, TO JANUARY 21, 1946.
SINCE YOUR GRADE WAS THAT OF PRIVATE FIRST CLASS FROM JUNE 25, 1942, TO
APRIL 24, 1945, AND YOU SAY THAT YOU ENLISTED IN THE ARMY OF THE UNITED
STATES ON APRIL 25, 1945, IN THE SAME GRADE, THERE IS, OF COURSE, NO
AUTHORITY FOR PAYING THE PAY OF THE HIGHER GRADE.
IT APPEARS THAT YOUR CLAIM WAS PAID BY CHECK NO. 17,373 DATED
SEPTEMBER 29, 1959, IN THE AMOUNT OF $466.28, MADE PAYABLE TO YOU AND
MAILED TO YOUR THEN ADDRESS, NO. 5, 24TH STREET, EBB, OLONGAPA,
ZAMBALES, PHILIPPINES. A COPY OF SUCH CHECK IS ENCLOSED. THAT PAYMENT
COVERED THE PERIOD SEPTEMBER 1, 1942, TO JANUARY 21, 1946, AND WAS BASED
ON THE GRADE OF PRIVATE FIRST CLASS. YOUR ATTENTION IS IS INVITED TO
THE ENDORSEMENT ON THE REVERSE SIDE, AS IT APPEARS TO BE GENUINE AND THE
SAME AS YOUR SIGNATURES ON LETTERS SENT TO THIS OFFICE BY YOU.
SINCE THE RECORDS SHOW PAYMENT TO YOU OF THE FULL AMOUNT DUE INCIDENT
TO YOUR MILITARY SERVICE IN THE PHILIPPINE SCOUTS AND ARMY OF THE UNITED
STATES, FROM MARCH 1942 TO JANUARY 1946, THERE IS NO FURTHER ACTION
WHICH MAY BE TAKEN IN YOUR CASE.
B-156315, JUL. 21, 1966
TO AUTHORIZED CERTIFYING OFFICER, FOREST SERVICE, PACIFIC NORTHWEST
REGION, UNITED STATES DEPARTMENT OF AGRICULTURE:
WE REFER TO YOUR LETTER OF MAY 18, 1966, WHICH WAS RECEIVED IN OUR
OFFICE JUNE 30, YOUR REFERENCE 6540, BY WHICH YOU REQUEST OUR DECISION
WHETHER YOU MAY CERTIFY FOR PAYMENT THE SUPPLEMENTAL TRAVEL VOUCHER OF
MR. ALLAN O. LAMPI, AN EMPLOYEE OF THE FOREST SERVICE, U.S. DEPARTMENT
OF AGRICULTURE, FOR REIMBURSEMENT OF CERTAIN COSTS HE INCURRED IN THE
MOVING OF HIS HOUSE TRAILER (MOBILE HOME) INCIDENT TO A PERMANENT CHANGE
OF STATION.
MR. LAMPI HAS BEEN REIMBURSED THE COSTS HE INCURRED FOR THE
COMMERCIAL TRANSPORTATION OF HIS HOUSE TRAILER UNDER THE PROVISIONS OF
SECTION 6 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56. HIS SUPPLEMENTAL
VOUCHER IN THE AMOUNT OF $135.36 IS FOR THE COST OF DISASSEMBLING AND
REASSEMBLING AN "EXPANDO" UNIT WHICH WAS AN INTEGRAL PART OF THE
PARTICULAR TRAILER INVOLVED. MR. LAMPI INCURRED THE COSTS IN QUESTION
BECAUSE IT WAS NECESSARY TO DETACH THE "EXPANDO" UNIT AND SET IT IN THE
HOUSE TRAILER PRIOR TO MOVEMENT AND TO REATTACH THE UNIT AT DESTINATION.
PAYMENT OF THE AMOUNT CLAIMED, TOGETHER WITH THE TRANSPORTATION
EXPENSES WHICH MR. LAMPI HAS ALREADY BEEN REIMBURSED, WOULD NOT CAUSE
THE TOTAL AMOUNT PAID FOR HOUSE TRAILER TRANSPORTATION TO EXCEED THE
MAXIMUM AMOUNT WHICH COULD HAVE BEEN ALLOWED HIM FOR THE TRANSPORTATION
AND STORAGE OF HOUSEHOLD EFFECTS.
PAYMENT OF THE COST OF TRANSPORTING AN EMPLOYEE'S HOUSE TRAILER
INCIDENT TO A PERMANENT CHANGE OF STATION IS AUTHORIZED BY SECTION 1 (B)
OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, APPROVED AUGUST 2, 1946, AS
AMENDED, 5 U.S.C. 73B-1 (B) WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:
"* * * UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, ANY
CIVILIAN OFFICER OR EMPLOYEE WHO TRANSPORTS A HOUSE TRAILER OR MOBILE
DWELLING WITHIN THE CONTINENTAL UNITED STATES, WITHIN ALASKA, OR BETWEEN
THE CONTINENTAL UNITED STATES AND ALASKA, FOR USE AS A RESIDENCE AND WHO
WOULD OTHERWISE BE ENTITLED TO TRANSPORTATION OF HOUSEHOLD GOODS AND
PERSONAL EFFECTS UNDER SUBSECTION (A) OF THIS SECTION SHALL BE ENTITLED
IN LIEU OF THE TRANSPORTATION TO WHICH HE WOULD OTHERWISE BE ENTITLED
UNDER SUBSECTION (A) OF THIS SECTION, TO A REASONABLE ALLOWANCE, NOT TO
EXCEED 20 CENTS PER MILE FOR TRANSPORTATION OF THE HOUSE TRAILER OR
MOBILE DWELLING IF SUCH TRAILER OR DWELLING IS TRANSPORTED BY SUCH
OFFICER OR EMPLOYEE, OR, IF SUCH TRAILER OR DWELLING IS NOT SO
TRANSPORTED BY SUCH OFFICER OR EMPLOYEE, TO COMMERCIAL TRANSPORTATION OF
THE HOUSE TRAILER OR MOBILE DWELLING, AT GOVERNMENT EXPENSE, OR
REIMBURSEMENT TO SUCH OFFICER OR EMPLOYEE THEREFOR, INCLUDING THE
PAYMENT OF NECESSARY TOLLS, CHARGES, AND PERMIT FEES, EXCEPT THAT NO
PAYMENT UNDER THIS SENTENCE SHALL EXCEED THE MAXIMUM PAYMENT TO WHICH
SUCH OFFICER OR EMPLOYEE WOULD OTHERWISE BE ENTITLED UNDER THIS SECTION
FOR TRANSPORTATION AND TEMPORARY STORAGE OF HIS HOUSEHOLD GOODS AND
PERSONAL EFFECTS IN CONNECTION WITH THIS TRANSFER.'
SECTION 6 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, WHICH WAS ISSUED
PURSUANT TO A DELEGATION OF AUTHORITY FROM THE PRESIDENT CONTAINED IN
EXECUTIVE ORDER NO. 10530, MAY 10, 1954, AS AMENDED, CONTAINS BINDING
REGULATIONS WITH REGARD TO PAYMENT BY THE GOVERNMENT OF EXPENSES
INCURRED UNDER THE AUTHORITY OF THE QUOTED STATUTE. PARAGRAPH 6.3A
ENUMERATES THE EXPENSES WHICH MAY AND MAY NOT BE PAID BY THE GOVERNMENT
INCIDENT TO COMMERCIAL TRANSPORTATION OF A HOUSE TRAILER AS FOLLOWS:
"A. WHEN A 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 SIMILAR
STATE REGULATORY BODY FOR MOVEMENT OF A TRAILER OF THE SIZE AND TYPE
INVOLVED FOR THE DISTANCE INVOLVED, COMPUTED AS PROVIDED IN SUBSECTION
6.2.
"/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 ELSEWHERE IN THE
CONTINENTAL UNITED STATES, AND CARRIERS' SERVICE CHARGES FOR OBTAINING
SUCH 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.' "
SINCE THOSE REGULATIONS SPECIFICALLY PROHIBIT THE PAYMENT OF EXPENSES
INVOLVED IN PREPARING A TRAILER FOR MOVEMENT WE ARE WITHOUT AUTHORITY TO
APPROVE PAYMENT OF THE VOUCHER IN QUESTION. IN THAT CONNECTION WE NOTE
THAT THERE APPEARS TO BE NO VALID DISTINCTION BETWEEN THIS CASE AND
B-156315, APRIL 9, 1965, WHICH YOU CITED.
THE VOUCHER WHICH IS RETURNED HEREWITH MAY NOT BE CERTIFIED FOR
PAYMENT.
B-157479, JUL. 21, 1966
TO MR. FREDDIE MCCARTHY:
FURTHER REFERENCE IS MADE TO LETTER DATED JUNE 4, 1966, WITH
ENCLOSURE, WRITTEN IN YOUR BEHALF BY MR. RODRIGO C. MATUTINA, ATTORNEY
AT LAW, SURIGAO, SURIGAO DEL NORTE, REPUBLIC OF THE PHILIPPINES,
REQUESTING RECONSIDERATION OF YOUR CLAIM AND THE CLAIMS OF YOUR SISTERS,
FOR THE PAY AND ALLOWANCES AND 6 MONTHS' DEATH GRATUITY BELIEVED TO BE
DUE INCIDENT TO THE DEATH OF YOUR ASSERTED FATHER, ALBERT MCCARTHY, WHO
SERVED AS AN OFFICER IN THE UNITED STATES ARMY IN THE PHILIPPINES DURING
WORLD WAR II.
IN OUR DECISION TO YOU DATED MAY 11, 1966, B-157479, WE EXPLAINED
THAT SINCE THE RECORD SHOWED THAT YOUR MOTHER AND THE DECEASED OFFICER
DID NOT ENTER INTO A CEREMONIAL MARRIAGE AND UNDER THE LAWS OF THE
REPUBLIC OF THE PHILIPPINES, CHILDREN BORN OUT OF WEDLOCK MAY INHERIT
FROM THEIR FATHER ONLY IF THERE WAS AN ACKNOWLEDGEMENT BY HIM OF HIS
PATERNITY WE ARE WITHOUT LEGAL AUTHORITY TO ALLOW YOUR CLAIM, IN THE
ABSENCE OF EVIDENCE ESTABLISHING THAT ALBERT MCCARTHY ACKNOWLEDGED YOU
AND YOUR SISTERS AS HIS CHILDREN, OR A COURT DETERMINATION OF YOUR
STATUS.
WITH HIS PRESENT LETTER MR. MATUTINA ENCLOSED A CERTIFICATE FILED
FEBRUARY 5, 1937, OF THE BIRTH OF EVANGELINE MCCARTHY ON JANUARY 9,
1932. THE CERTIFICATE SHOWS THAT THE FATHER, ALBERT MCCARTHY AND THE
MOTHER "CONCHITA FERRES" WERE MARRIED AND THAT EVANGELINE MCCARTHY IS
THEIR LEGITIMATE ISSUE. MR. MATUTINA URGES THAT THIS BIRTH CERTIFICATE
SHOULD BE ACCEPTED AS ESTABLISHING THAT YOU AND YOUR SISTERS ARE THE
LEGITIMATE CHILDREN OF YOUR PARENTS AND THAT ALL STATEMENTS IN THE
RECORD THAT YOUR PARENTS WERE NOT MARRIED ARE NOT TRUE. ON THAT BASIS,
HE CONTENDS YOU AND YOUR SISTERS ARE THE LAWFUL HEIRS OF ALBERT MCCARTHY
AND ARE ENTITLED TO THE PAY AND ALLOWANCES DUE AND TO PAYMENT OF 6
MONTHS' DEATH GRATUITY.
THE ACT OF JUNE 30, 1906, 34 STAT. 750, AS AMENDED BY THE ACT OF
FEBRUARY 25, 1946, 60 STAT. 30, WHICH GOVERNS THE SETTLEMENT OF CLAIMS
FOR AMOUNTS DUE THE ESTATES OF DECEASED ARMY PERSONNEL WHO DIED PRIOR TO
JANUARY 1, 1956, PROVIDES THAT WHERE NO DEMAND IS PRESENTED BY A DULY
APPOINTED LEGAL REPRESENTATIVE OF THE DECEDENT'S ESTATE, PAYMENT SHOULD
BE MADE TO THE WIDOW OR WIDOWER, AND IF DECEDENT LEFT NO WIDOW OR
WIDOWER, OR THE WIDOW OR WIDOWER BE DEAD AT TIME OF SETTLEMENT, THEN TO
THE CHILDREN OR THEIR ISSUE, PER STIRPES. UNDER THE PROVISIONS OF THE
STATUTE, A WIDOW OR WIDOWER TAKES PRECEDENCE OVER CHILDREN IN THE
SETTLEMENT OF A DECEDENT'S ACCOUNTS, AND WHERE A WIDOW SURVIVES NO
PAYMENT MAY BE MADE TO ANY OTHER DISTRIBUTEE WHILE THE WIDOW IS ALIVE.
HENCE, IF THE BIRTH CERTIFICATE OF EVANGELINE MCCARTHY MAY BE
ACCEPTED AS ESTABLISHING THAT ALBERT MCCARTHY AND CONCHITA PEREZ WERE
LEGALLY MARRIED, HE IS SURVIVED BY A WIDOW AND NO CONSIDERATION MAY BE
GIVEN TO CLAIMS PRESENTED BY HIS CHILDREN. IN THIS REGARD ANY CLAIM
WHICH CONCHITA PEREZ MAY NOW PRESENT AS WIDOW COULD NOT RECEIVE
FAVORABLE CONSIDERATION IN VIEW OF THE PROVISIONS OF THE ACT OF OCTOBER
9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237. THAT ACT PROVIDES
THAT EVERY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL
ACCOUNTING OFFICE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE
RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE THE CLAIM
FIRST ACCRUED. ALSO, SHOULD CONCHITA PEREZ NOW DIE, IT IS AT LEAST
QUESTIONABLE WHETHER, IN VIEW OF THE PROVISIONS OF THE BARRING ACT WE
COULD GIVE FURTHER CONSIDERATION TO YOUR CLAIMS, SINCE AT THE TIME OF
THE FILING OF YOUR CLAIMS THERE WAS A WIDOW SURVIVING AND YOUR CLAIMS AS
CHILDREN WOULD HAVE BEEN WITHOUT LEGAL EFFECT.
AS TO THE PROBATIVE VALUE TO BE GIVEN THE BIRTH CERTIFICATE OF
EVANGELINE MCCARTHY SUBMITTED BY MR. MATUTINA, AN EXAMINATION OF THAT
CERTIFICATE SHOWS THAT IT WAS ISSUED OVER FIVE YEARS AFTER THE BIRTH OF
THE CHILD AND CERTAIN OF THE DATES ON THE CERTIFICATE HAVE BEEN ALTERED.
ALSO, THE NAME OF THE MOTHER IS SHOWN ON THE CERTIFICATE AS CONCHITA
FERRES, NOT PEREZ, AND NEITHER THE FATHER OR MOTHER APPEARS TO HAVE BEEN
INVOLVED WITH ITS ISSUANCE. IN SUCH CIRCUMSTANCES AND IN VIEW OF THE
MANY AFFIDAVITS IN THE FILE DECLARING THAT YOUR MOTHER AND FATHER DID
NOT ENTER INTO A CEREMONIAL MARRIAGE, INCLUDING A JOINT AFFIDAVIT
EXECUTED BY YOU AND YOUR SISTERS AND ONE EXECUTED BY CONCHITA PEREZ
AGAINST HER INTEREST IN WHICH SHE AVERS THAT SHE AND ALBERT MCCARTHY
WERE NEVER LEGALLY MARRIED AND THE COMPLETE ABSENCE OF ANY OTHER
EVIDENCE THAT THEY EVER MARRIED, WE DO NOT BELIEVE WE WOULD BE JUSTIFIED
IN ACCEPTING THE BIRTH CERTIFICATE AS PROOF THAT YOUR PARENTS WERE
LEGALLY MARRIED.
ACCORDINGLY, THE AMOUNTS DUE IN THE CASE MAY NOT BE ALLOWED TO YOU
AND YOUR SISTERS ON THE BASIS OF MR. MATUTINA'S LETTER OF JUNE 4, 1966.
HOWEVER, FURTHER CONSIDERATION WILL BE GIVEN TO YOUR CLAIMS IF YOU ARE
ABLE TO SUBMIT ANY EVIDENCE SUCH AS CORRESPONDENCE FROM YOUR FATHER TO
YOUR GRANDFATHER OR TO OTHERS IN WHICH HE REFERS TO YOU AND YOUR SISTERS
AS HIS CHILDREN, OR OTHERWISE SHOWING HIS ACKNOWLEDGMENT OF YOU AS HIS
CHILDREN.
B-158805, JUL. 21, 1966
TO PATRICK LUMBER COMPANY:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 25, 1966, EXPRESSING
CONCERN ABOUT THE AWARD OF A NAVY (BUREAU OF YARDS AND DOCKS) CONTRACT
FOR 78,400,000 BOARD FEET OF LUMBER NEEDED IN SOUTH VIETNAM TO ONE FIRM,
NIEDERMEYER-MARTIN COMPANY (NM) OF PORTLAND, OREGON, BY THE JOINT
VENTURE OF RAYMOND INTERNATIONAL OF DELAWARE, INC., MORRISON-KNUDSEN OF
ASIA, INC., BROWN AND ROOT, INC., AND THE J. A. JONES CONSTRUCTION
COMPANY (RMK-BRJ). YOU SAY THAT (1) YOU ARE CONCERNED AS A COMPANY
BECAUSE YOU FEEL THE BIDDING AND AWARD WAS HANDLED IMPROPERLY; AND (2)
YOU ARE CONCERNED AS INDIVIDUAL CITIZENS AS TO WHETHER THE LUMBER WILL
BE FURNISHED AS CHEAPLY AS POSSIBLE AND DELIVERED IN ACCORDANCE WITH
SPECIFICATIONS AS QUICKLY AS POSSIBLE UNDER EMERGENCY CONDITIONS.
THE RMK-BRJ JOINT VENTURE IS THE PRIME CONTRACTOR FOR THE
CONSTRUCTION OF CERTAIN AIRFIELDS AND COMMUNICATION FACILITIES IN SOUTH
VIETNAM. UNDER THE TERMS OF ITS CONTRACT THE CONTRACTOR IS DESIGNATED
AS THE PURCHASING AGENT OF THE GOVERNMENT FOR THE PURCHASE OF ALL
MATERIALS REQUIRED TO ACCOMPLISH THE WORK. THE CONTRACT DOES NOT
ESTABLISH ANY PROCUREMENT PROCEDURES FOR CONDUCTING SUCH PURCHASES OTHER
THAN THOSE WHICH CONCERN APPROVAL OR DIRECTION OF THE OFFICER IN CHARGE
OF CONSTRUCTION. ON FEBRUARY 28, 1966, RMK-BRJ ISSUED A REQUEST FOR
QUOTATIONS (RFQ) TO 18 LUMBER SUPPLIERS ON FOUR IDENTICAL LOTS OF
LUMBER. EACH LOT CALLED FOR 19,600,000 BOARD FEET OF PRESSURE TREATED 1
INCH, 2 INCHES AND 4 INCHES S4S DOUGLAS FIR, CONSTRUCTION GRADE OR
BETTER AND IN VARIOUS LENGTHS AND WIDTHS. DELIVERY WAS REQUIRED AT THE
RATE OF 4,000,000 BOARD FEET PER MONTH STARTING JULY 1, 1966. PARAGRAPH
12 OF THE RFQ PROVIDED THAT THE CONTRACTOR COULD ACCEPT ANY UNQUALIFIED
ITEM OR GROUP OF ITEMS OF ANY BID AND THAT THE ORDER WOULD BE AWARDED TO
THAT RESPONSIBLE SELLER WHO REPRESENTED THE MOST ADVANTAGEOUS BID, PRICE
AND OTHER FACTORS CONSIDERED.
ELEVEN BIDS WERE RECEIVED BY THE DUE DATE, MARCH 15, 1966, AND WERE
OPENED ON THE NEXT DAY, MARCH 16. NIEDERMEYER-MARTIN SUBMITTED THE
LOWEST CONFORMING BID ON ALL FOUR LOTS IN THE AMOUNTS OF $3,262,200;
$3,301,400; $3,497,400 AND $3,693,400 WITH THE ADDITIONAL PROVISION
THAT FOR AN AWARD OF ALL LOTS, THE LOW PRICE OF $3,262,200 WOULD APPLY
TO EACH LOT THEREBY MAKING ITS TOTAL BID $13,048,800 FOR THE 78,400,000
BOARD FEET OF LUMBER. ALTHOUGH YOUR FIRM SUBMITTED THE LOWEST
CONFORMING BID FOR A SINGLE LOT IN THE AMOUNT OF $3,077,200, AND A
CONFORMING BID OF $3,547,600 FOR A SECOND LOT, AN AWARD TO YOU OF ONE
LOT AT $3,077,200 AND AWARD OF THE REMAINING THREE LOTS TO NM FOR
$3,262,200; $3,301,400 AND $3,497,400 WOULD HAVE RESULTED IN A HIGHER
PRICE TO THE GOVERNMENT ($13,138,200) THAN THE $13,048,800 BID BY NM FOR
ALL FOUR LOTS. SUCH BID BY NM, THEREFORE, WAS CONSIDERED TO BE THE MOST
ADVANTAGEOUS TO THE GOVERNMENT (PRICE AND OTHER FACTORS CONSIDERED) AND
AWARD OF ALL FOUR LOTS WAS MADE TO THAT FIRM ON MARCH 18, 1966, IN
ACCORDANCE WITH PARAGRAPH 12 OF THE RFQ.
PURCHASE ORDERS WERE ISSUED BY RMK-BRJ ON MARCH 18 AT THE NM BID
PRICE OF $13,048,800 LESS A $211,200 REDUCTION APPLICABLE TO THE
INCISING OF 1 INCH AND 2 INCH LUMBER WHICH REQUIREMENT WAS ELIMINATED.
IN SUCH CONNECTION IT IS NOTED THAT EVEN HAD SUCH REDUCTION BEEN
REFLECTED PROPORTIONATELY IN EACH LOT OF THE RMK-BRJ BID AND COMPARED
WITH YOUR BID LESS THE $88,000 CORRESPONDING CHARGE PER LOT QUOTED BY
YOU FOR THE INCISING FACTOR, AN AWARD TO NM FOR THE FOUR LOTS WOULD
STILL HAVE BEEN AT THE LOWEST PRICE TO THE GOVERNMENT ($12,837,600 AS
COMPARED WITH $12,891,800 FOR THE AWARD OF ONE LOT TO YOU AND THREE LOTS
TO NM).
IT IS REPORTED THAT AFTER ISSUANCE OF THE PURCHASE ORDERS URGENT
OPERATIONAL MILITARY REQUIREMENTS IN SOUTH VIETNAM MADE IT NECESSARY FOR
THE GOVERNMENT TO DIRECT RMK-BRJ TO ORDER NM TO EXPEDITE SHIPMENTS
IMMEDIATELY. THE GOVERNMENT OFFICER IN CHARGE OF CONSTRUCTION, SAIGON,
DETERMINED THAT THERE WAS NO AVAILABLE LUMBER IN SOUTH VIETNAM OR
ENROUTE, AND THAT WAITING UNTIL JULY FOR THE FIRST DELIVERY WOULD BE
UNTENABLE. WHILE NAVY REPORTS, AS YOU ALSO STATED IN YOUR LETTER, THAT
EARLIER DELIVERIES COULD BE OBTAINED BY AN EASING OF THE SPECIFICATIONS,
IT IS NOTED THAT THE RFQ EXPRESSED A PREFERENCE FOR DELIVERY AS "SOON AS
POSSIBLE" AND, APPARENTLY IN REPLY THERETO, NM STATED IN ITS QUOTATIONS
TRANSMITTAL LETTER OF MARCH 15, 1966, THAT "WE ARE IN A POSITION TO
COMMENCE SHIPMENT OF YOUR TREATED LUMBER IMMEDIATELY, AND CONTINUE UNDER
ANY REASONABLE SCHEDULE YOU MAY DESIRE.' IN ITS QUOTATIONS DATED MARCH
14, NM HAD MADE A NOTATION THAT IT COULD QUOTE LOWER PRICES AND PROVIDE
AN EARLIER DELIVERY THAN SPECIFIED IN THE INQUIRY IF RMK-BRJ WOULD
CONSIDER OTHER SPECIES, LENGTHS, GRADES, ETC. THE RECORD DOES NOT SHOW
THE SIZE OF THE IMMEDIATE SHIPMENTS OF LUMBER, CONFORMING TO THE
SPECIFICATIONS, CONTEMPLATED BY NM IN ITS LETTER OF MARCH 15 OR WHAT
THAT FIRM CONSIDERED THE LIMITS OF A REASONABLE SCHEDULE TO BE. A
CHANGE ORDER WAS ISSUED THEREAFTER ON MARCH 28 WHICH RELAXED THE
ORIGINAL SPECIFICATIONS SIGNIFICANTLY FOR THE ENTIRE 78,400,000 BOARD
FEET OF LUMBER. SUCH ORDER PERMITTED THE SUPPLYING OF 50 PERCENT OF THE
PROCUREMENT IN HEMLOCK AND LARCH, 20 PERCENT IN STANDARD GRADE AND 25
PERCENT IN 10 FEET TO 12 FEET LENGTHS FOR WHICH CHANGES THE PURCHASE
PRICE WAS SUBSEQUENTLY REDUCED IN THE AMOUNTS OF $216,480; $78,400 AND
$21,560, RESPECTIVELY. THE SPECIFICATIONS HAVE ALSO BEEN REVISED TO
MAKE LUMBER IN GREATER LENGTHS (UP TO 30 FEET) ACCEPTABLE, HOWEVER, NO
PRICE ADJUSTMENT WAS MADE FOR THAT CHANGE. CONTRARY TO YOUR
UNDERSTANDING, THE RECORD DOES NOT INDICATE ANY REVISION OF THE
REQUIREMENT THAT ALL LUMBER BE PRESSURE TREATED WITH WATER REPELLENT.
UNDER THE RELAXED SPECIFICATIONS, NM AGREED TO FURNISH THE LUMBER IN
ACCORDANCE WITH THE FOLLOWING DELIVERY SCHEDULE:
TABLE
MINIMUM QUANTITY MAXIMUM
(BOARD FEET) READINESS DATE
---------------- --------------
1,500,000 APRIL 18, 1966
2,500,000 APRIL 28, 1966
3,000,000 MAY 7, 1966
3,000,000 MAY 17, 1966
15,000,000 JUNE 17, 1966
16,000,000 JULY 17, 1966
16,000,000 AUG. 17, 1966
16,000,000 SEPT. 17, 1966
5,400,000 OCT. 17, 1966
THE RECORDS INDICATE THAT NM HAS BEEN MEETING THE REVISED DELIVERY
SCHEDULE, AND AS OF JUNE 1, 1966, IT HAD DELIVERED TO THE PORT OF
EMBARKATION APPROXIMATELY 30.3 MILLION BOARD FEET OF LUMBER.
THE LUMBER IS BEING INSPECTED BY A DEPARTMENT OF DEFENSE CONTRACT
ADMINISTRATION SERVICES OFFICE REPRESENTATIVE AND ALSO BY AN RMK-BRJ
INSPECTOR TO ASSURE COMPLIANCE WITH THE SPECIFICATIONS. AT THE REQUEST
OF THE RESIDENT OFFICER IN CHARGE OF CONSTRUCTION (PACIFIC), RMK-BRJ
RETAINED AN INDEPENDENT INSPECTION AGENCY TO PERFORM PENTACHLOROPHENOL
RETENTION TESTS ON DELIVERED LUMBER. THE TESTS RESULTS SHOW THAT IN
EACH OF THE FIFTY TESTS MADE, THE MINIMUM REQUIREMENTS OF THE
SPECIFICATIONS HAD BEEN MET.
FROM THE FOREGOING, WE DO NOT PERCEIVE A VALID BASIS ON WHICH TO
QUESTION THE LEGALITY OF THE CONTRACT AWARDED NIEDERMEYER-MARTIN, AND IT
APPEARS THAT SUCH FIRM IS MEETING ITS CONTRACTUAL RESPONSIBILITIES.
WE HAVE, HOWEVER, CONSIDERABLE DOUBT THAT THE FINANCIAL INTERESTS OF
THE GOVERNMENT WERE BEST SERVED BY THE MANNER IN WHICH THIS PROCUREMENT
WAS PROCESSED. IT APPEARS THAT PREAWARD ATTEMPTS BY PROSPECTIVE BIDDERS
TO GET THE SPECIFICATIONS REVISED, PARTICULARLY AS TO LENGTHS, SPECIES
AND GRADE, SO THAT BETTER PRICES AND EARLIER DELIVERY COULD BE QUOTED
WERE UNAVAILING, AND BIDDERS WERE NOT AFFORDED THE OPPORTUNITY TO BID ON
THE LUMBER ACTUALLY PROCURED ALTHOUGH THE SPECIFICATIONS WERE REVISED IN
THOSE SPECIFIC AREAS SHORTLY AFTER AWARD AND PRICE ADJUSTMENTS
NEGOTIATED. WHILE IT HAS BEEN REPORTED THAT THE CHANGES IN THE
SPECIFICATIONS WERE OCCASIONED AFTER AWARD BY URGENT OPERATIONAL
MILITARY REQUIREMENTS NECESSITATING EARLIER SHIPMENTS THAN REQUIRED BY
THE RFQ, OUR INVESTIGATION IN THIS MATTER HAS BEEN UNABLE TO DISCLOSE
ANY RECORD OR DOCUMENTATION WHICH ESTABLISHES THE DATE WHEN IT WAS FIRST
DECIDED THAT THE SPECIFICATIONS SHOULD BE RELAXED.
WITH RESPECT TO THE CHANGE WHICH ELIMINATED THE INCISING OF 1 INCH
AND 2 INCH LUMBER, HOWEVER, IT APPEARS THAT AT LEAST THE DESIRABILITY OF
SUCH A CHANGE MAY HAVE BEEN EVIDENT IN TIME TO PERMIT BIDDERS TO
CONSIDER SUCH CHANGE IN THEIR QUOTATIONS, INASMUCH AS IT WAS EFFECTED IN
THE PURCHASE ORDERS ISSUED ON MARCH 18, THE DATE OF THE AWARD OF THE
CONTRACT. THE RECORD PRESENTLY BEFORE US DOES NOT SHOW WHETHER THE
PRICE REDUCTIONS NEGOTIATED FOR THAT AND THE OTHER CHANGES WERE
REASONABLE UNDER THE CIRCUMSTANCES INVOLVED. SUCH FACTORS, HOWEVER,
WILL BE SUBJECT TO OUR FURTHER CONSIDERATION WHEN THE EXPENDITURES MADE
PURSUANT TO THE RMK-BRJ CONTRACT ARE REVIEWED BY US IN THE EXERCISE OF
OUR AUDIT FUNCTIONS.
B-158852, JUL. 21, 1966
TO CREST ULTRASONICS CORPORATION:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 31, 1966,
PROTESTING THE AWARD OF CONTRACT TO ACOUSTICA ASSOCIATES, INC., LOS
ANGELES, CALIFORNIA, UNDER REQUEST FOR PROPOSALS 9-66 OF JANUARY 19,
1966, ISSUED BY THE POST OFFICE DEPARTMENT.
ON DECEMBER 15, 1965 THE DEPARTMENT PUBLISHED A NOTICE SOLICITING
SOURCES FOR THE PROCUREMENT OF FOUR ULTRASONIC CLEANERS. THIS NOTICE
WAS PUBLISHED IN THE COMMERCIAL BUSINESS DAILY. THE DEPARTMENT HAD
DETERMINED TO INITIATE A PROJECT TO DEVELOP, TEST, AND EVALUATE THESE
CLEANERS IN A PROGRAM THAT WOULD RESULT IN REDUCTION OF MAINTENANCE
COSTS OF THE MANY VARIED MECHANICAL DEVICES EMPLOYED IN THE POSTAL
SERVICE.
THE DEPARTMENT SOLICITED INFORMATION FROM SEVERAL ULTRASONIC CLEANER
PRODUCERS IN AN EFFORT TO CONTRIBUTE TO ITS TECHNICAL KNOWLEDGE OF THE
INDUSTRY, AND TO PREPARE REQUIREMENTS UPON WHICH VENDORS MIGHT BASE
THEIR BIDS. DATA WAS OBTAINED FROM THREE CORPORATIONS, ONE OF WHICH WAS
CREST, AND "POST OFFICE DEPARTMENT REQUIREMENTS, CLEANING EQUIPMENT
(ULTRASONIC)" DATED JANUARY 19, 1966, WERE PREPARED.
ON JANUARY 21, 1966, THE DEPARTMENT SENT REQUESTS FOR PROPOSALS TO
FIFTEEN SOURCES, WITH THE ,REQUIREMENTS" ATTACHED TO THE REQUESTS. NINE
PROPOSALS WERE RECEIVED BY THE CLOSE OF BUSINESS ON FEBRUARY 19, 1966.
THE LOWEST PROPOSAL WAS SUBMITTED BY ACOUSTICA ASSOCIATES, WITH CREST
SUBMITTING THE SECOND LOWEST. ALL THE PROPOSALS WERE SENT FOR
EVALUATION TO THE ASSISTANT DIRECTOR FOR RESEARCH AND DEVELOPMENT.
THERE, A TECHNICAL EVALUATION WAS MADE OF EACH PROPONENT'S RESPONSE TO
THE PROPOSAL, AND OF THE PROPONENT'S ORGANIZATION, FACILITIES, FINANCIAL
STATUS, AND PERSONNEL. THE ASSISTANT DIRECTOR FOR RESEARCH AND
DEVELOPMENT DETERMINED THAT THE DATA SUBMITTED BY THE LOW BIDDER
INDICATED FULL COMPLIANCE WITH THE REQUIREMENTS AND RECOMMENDED THAT
AWARD BE MADE TO IT. A FIRM FIXED-PRICE CONTRACT WAS AWARDED TO
ACOUSTICA, MARCH 25, 1966.
IN YOUR LETTER OF PROTEST YOU CONTEND THAT ALTHOUGH YOUR PRICE WAS
HIGHER, THE EQUIPMENT YOU PROPOSED WOULD SATISFY THE MOST DIFFICULT OF
ALL THE CLEANING JOBS SET FORTH IN THE REQUIREMENTS. YOUR REASONS FOR
BIDDING A HIGHER PRICE WERE THAT THE DEPARTMENT HAD REQUESTED YOU TO
DEMONSTRATE YOUR EQUIPMENT, AND THAT YOU HAD FAMILIARIZED YOURSELVES
WITH THE DEGREE OF CLEANLINESS DEEMED NECESSARY BY THE DEPARTMENT
PERSONNEL, THEREBY PROMPTING YOU TO FEEL THAT A MORE INVOLVED PIECE OF
EQUIPMENT WAS NECESSARY THAN THE "REQUIREMENTS" MIGHT INDICATE. YOU
FURTHER CONTEND THAT ACOUSTICA'S EQUIPMENT IS NOT CAPABLE OF
ACCOMPLISHING THE WORK BECAUSE IT OPERATES ON BUT A SINGLE FREQUENCY,
WHEREAS THE EQUIPMENT DEVELOPED BY YOU OPERATES ON SIX FREQUENCIES,
THEREBY BEING FULLY CAPABLE OF MEETING THE DEPARTMENT'S NEEDS.
IN A NEGOTIATED PROCUREMENT, IT IS THE DUTY OF THE GOVERNMENT
CONTRACTING OFFICIALS TO PLACE THE CONTRACT WITH THE CONTRACTOR MAKING
THE BEST FINAL PROPOSAL IN TERMS OF THE NEEDS OF THE GOVERNMENT. THE
SELECTION OF THE BEST QUALIFIED CONTRACTOR FOR THE AWARD IS A MATTER FOR
THE ADMINISTRATIVE OFFICE CONCERNED IN THE EXERCISE OF ITS BEST JUDGMENT
AS TO THE INTERESTS OF THE GOVERNMENT. B-143702, SEPTEMBER 27, 1960.
THE RECORD BEFORE US INDICATES THAT THE EVALUATION WAS ACCOMPLISHED
ON AN OBJECTIVE BASIS USING FACTORS ESTABLISHED IN THE OVERALL QUALITY
OF ULTRASONIC CLEANING EQUIPMENT, AND EXCLUDING PROPRIETARY FEATURES OF
THE PROPONENTS. NOT ONLY WAS ACOUSTICA'S PRICE THE LOWEST, BUT THEIR
SCORE ON THE RESEARCH AND DEVELOPMENT EVALUATION WORK SHEET WAS HIGHER
THAN THAT OF CREST, AND HIGHER THAN THOSE OF ALL THE OTHER PROPONENTS
BUT ONE, WHICH SCORE WAS EQUAL TO THE ACOUSTICA SCORE, BUT WHOSE PRICE
WAS THE HIGHEST PRICE PROPOSED.
THE QUESTION WHETHER THIS DETERMINATION BASED UPON THE DEPARTMENT'S
EVALUATION OF THE PROPOSALS WAS CORRECT IS NOT ORDINARILY CONSIDERED TO
BE WITHIN THE JURISDICTION OF THIS OFFICE. IN OUR DECISION B-139830,
AUGUST 19, 1959, WE MADE THE FOLLOWING OBSERVATION:
"THIS OFFICE HAS NEITHER AN ENGINEERING STAFF NOR A TESTING
LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS.
MOREOVER, IN DISPUTES OF FACT BETWEEN A PROTESTANT AND A GOVERNMENT
AGENCY, WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS
CORRECT. WHETHER A PARTICULAR BID IS RESPONSIVE TO THE TECHNICAL
DETAILS OF THE SPECIFICATIONS IS NOT A MATTER, ORDINARILY, FOR OUR
DETERMINATION. * * *.'
THE POST OFFICE DEPARTMENT REPORTS THAT THE SUBJECT CONTRACT WAS
NEGOTIATED PURSUANT TO 41 U.S.C. 252 (C) (11), AND FEDERAL PROCUREMENT
REGULATIONS 1-3.211, WHICH AUTHORIZE THE AGENCY TO NEGOTIATE, WITHOUT
FORMAL ADVERTISING, THE PROCUREMENT OF PROPERTY DETERMINED TO BE FOR
EXPERIMENTAL DEVELOPMENT, OR RESEARCH WORK. IT APPEARS FROM THE RECORD
THAT THE CONTRACTING OFFICIALS HAVE GIVEN THE MATTER OF SELECTING THE
BEST PROPOSAL CAREFUL CONSIDERATION. THE PURPOSE FOR THE PROCUREMENT IS
TO APPLY THIS CLEANING TECHNIQUE TO A CONSIDERABLE NUMBER OF ITEMS OF
POSTAL EQUIPMENT AND TO DETERMINE THROUGH EXPERIMENTATION AND TESTING
WHETHER OR NOT THE CLEANING TECHNIQUE WILL RESULT IN A REDUCTION OF
MAINTENANCE COSTS TO THE DEPARTMENT. IN VIEW OF THE DISCRETION PLACED
WITH THE CONTRACTING OFFICIALS IN NEGOTIATED PROCUREMENTS OF THIS
CHARACTER, AND SINCE THE RECORD DOES NOT SHOW ANY FAILURE ON THE PART OF
THE CONTRACTING OFFICIALS TO EXERCISE THEIR BEST JUDGMENT IN MAKING THE
AWARD, WE FIND NO BASIS TO QUESTION THE ACTION OF THE ADMINISTRATIVE
OFFICE IN AWARDING THE CONTRACT TO ACOUSTICA ASSOCIATES, INC.
B-158925, JUL. 21, 1966
TO COLONEL JAMES J. IRWIN, USAF:
IN REFERENCE TO YOUR LETTER OF JULY 8, 1966, I RECALL WITH PLEASANT
RECOLLECTION MY VISIT WITH YOU AND THE INTERESTING PRESENTATION MADE BY
YOUR STAFF AT RHEIN-MAIN, FRANKFURT, IN 1958.
CONCERNING YOUR ENTITLEMENT TO RESTORATION TO A CIVILIAN POSITION AT
THE TERMINATION OF YOUR PRESENT PERIOD OF ACTIVE DUTY AS AN AIR FORCE
RESERVE OFFICER, THERE IS LITTLE I CAN ADD TO WHAT WAS STATED IN OUR
DECISION OF APRIL 27, 1966, B-158925, TO WHICH YOU REFER IN YOUR LETTER.
SINCE YOU DO NOT HAVE A COPY OF THAT DECISION I AM ENCLOSING A COPY
HEREWITH. YOU WILL NOTE THAT THE RESTORATION RIGHT OF A RESERVE UNDER 5
U.S.C. 30R (B), QUOTED IN SUCH DECISION, IS NOT SUBJECT TO THE TIME
LIMITATION PRESCRIBED IN SECTION 9 (G) (2) OF THE UNIVERSAL MILITARY
TRAINING AND SERVICE ACT, 50 U.S.C.APP. 459 (G) (2), APPLICABLE TO
PERSONS SEEKING RESTORATION UNDER THE PROVISIONS OF THAT ACT.
IN VIEW THEREOF OUR OFFICE PERCEIVES NO OBJECTION TO YOUR BEING
GRANTED THE RESTORATION BENEFITS PROVIDED UNDER 5 U.S.C. 30R (B),
FOLLOWING YOUR RELEASE FROM ACTIVE DUTY. FOR THE REASONS STATED IN THE
CONCLUDING PARAGRAPH OF THAT DECISION, HOWEVER, WE ARE WITHOUT AUTHORITY
TO ORDER OR DIRECT YOUR RESTORATION TO ANY PARTICULAR POSITION IN THE
AGENCY BY WHICH YOU WERE EMPLOYED IMMEDIATELY PRIOR TO YOUR CURRENT
PERIOD OF ACTIVE MILITARY DUTY.
B-159315, JUL. 21, 1966
TO MR. FRED S. GULLIKSEN:
WE HAVE RECEIVED VIA THE CENTRAL DISBURSING OFFICER, NAVY REGIONAL
FINANCE CENTER, SAN DIEGO, CALIFORNIA, AND THE COMPTROLLER OF THE NAVY,
YOUR CLAIM FOR $50.28, REPRESENTING THE COST OF TRANSPORTING YOUR
HOUSEHOLD EFFECTS INCIDENT TO YOUR EMPLOYMENT WITH THE U.S. NAVAL
COMMUNICATION STATION, SAN DIEGO, CALIFORNIA.
IT IS REPORTED THAT INCIDENT TO THE ESTABLISHMENT OF A NEW NAVAL
COMMUNICATION CENTER AT ALBANY, GEORGIA, THERE WAS ISSUED TO YOU A
TRANSFER TRAVEL AUTHORIZATION DATED OCTOBER 5, 1965, COVERING YOUR
TRANSFER, TRANSPORTATION OF EFFECTS AND TRAVEL FOR YOURSELF AND YOUR
DEPENDENTS TO ALBANY. THE COPY OF THE ORDER FURNISHED US DOES NOT SHOW
AN EFFECTIVE DATE FOR THE TRANSFER, A DATE OR APPROXIMATE DATE FOR THE
BEGINNING OF THE TRAVEL, NOR A DATE OR APPROXIMATE DATE FOR REPORTING AT
THE NEW STATION. THE INDORSEMENT OF THE COMMANDER DATED MAY 18, 1966,
INDICATES THAT ORIGINALLY IT WAS INTENDED THAT YOU REPORT AT THE NEW
STATION ON NOVEMBER 22, 1965. THE ORDER WAS CANCELED, HOWEVER, AND NO
TRAVEL WAS PERFORMED THEREUNDER.
IN ANTICIPATION OF THE TRANSFER YOU SOLD YOUR HOME AND AGREED TO GIVE
POSSESSION THEREOF TO THE PURCHASER BY NOVEMBER 1, 1965. THE ONLY
INFORMATION FURNISHED WITH RESPECT THERETO IS THE STATEMENT IN THE
AGENCY'S REPORT THAT AFTER YOU SOLD THE HOME AND PRIOR TO NOVEMBER 1 YOU
WERE OFFICIALLY ADVISED THAT THE ORDER WAS BEING CANCELED AND WOULD BE
REISSUED AT A LATER DATE SINCE THE PLANT AND OTHER OPERATIONAL
FACILITIES HAD BEEN DELAYED. UNDER THE CIRCUMSTANCES YOU INCURRED
EXPENSES IN THE AMOUNT OF $50.28 FOR MOVING YOUR EFFECTS TO A
TEMPORARY HOME IN SAN DIEGO PENDING A NEW TRANSFER ORDER WHICH
APPARENTLY HAS NOT YET BEEN ISSUED.
SINCE THE ORDER WAS CANCELED PRIOR TO THE BEGINNING OF ANY TRAVEL OR
SHIPMENT OF EFFECTS THEREUNDER THE AGENCY CORRECTLY INFORMED YOU THAT
THERE IS NO LEGAL BASIS UPON WHICH REIMBURSEMENT MAY BE MADE TO YOU.
HOWEVER, THE CLAIM WAS TRANSMITTED HERE FOR POSSIBLE PROCESSING "UNDER
THE TERMS OF EITHER SECTION 109 OF PUBLIC LAW 85-162, 71 STAT. 407, OR
UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413.'
THE CITED SECTION OF PUB.L. 85-162 RELATES PRIMARILY TO EXPENSES FOR
TRAVEL, ETC., IN RELOCATING EMPLOYEES OF OR EMPLOYEES ASSIGNED TO FULL
TIME DUTIES AT THE HEADQUARTERS OF THE ATOMIC ENERGY COMMISSION. IT IS
NOT VIEWED AS APPLICABLE HERE. FURTHER, WHILE WE FULLY APPRECIATE YOUR
FEELINGS CONCERNING THE LOSS YOU SUSTAINED, UNDER THE STATED
CIRCUMSTANCES WE DO NOT VIEW YOUR CLAIM AS ONE WHICH WARRANTS A SPECIAL
REPORT TO THE CONGRESS UNDER THE CITED STATUTE.
B-159399, JUL 21, 1966
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
EDWARD G. BOEHM, FINANCIAL SERVICES DIVISION; DEPARTMENT OF STATE:
YOUR LETTER OF JUNE 6, 1966, REQUESTS OUR DECISION WHETHER YOU
LAWFULLY MAY CERTIFY FOR CREDIT TO THE ACCOUNT OF MR. DOUGLAS K. RAMSEY,
A FOREIGN SERVICE OFFICER PRESENTLY DETERMINED BY THE DEPARTMENT OF
STATE TO BE IN A MISSING STATUS, VOUCHERS COVERING THE SALARY AND
ALLOWANCES OF A FOREIGN SERVICE OFFICER, CLASS 6, IN THE CIRCUMSTANCES
HEREINAFTER RELATED.
YOU SAY THAT MR. RAMSEY WAS SERVING AS FOREIGN SERVICE OFFICER, CLASS
7, IN SAIGON, VIETNAM, WHEN HE WAS CAPTURED OR ABDUCTED BY THE VIET
CONG. ON FEBRUARY 3, 1966, HE WAS DETERMINED BY THE DEPARTMENT, UNDER
THE MISSING PERSONS ACT OF 1942, AS AMENDED, 50 U. S. C. APP. 1002, TO
BE IN MISSING STATUS. SINCE THAT DATE MR. RAMSEY'S ACCOUNT HAS BEEN
CREDITED WITH THE SALARY AND ALLOWANCES OF A FOREIGN SERVICE OFFICER,
CLASS 7.
WE UNDERSTAND THAT PRIOR TO MR. RAMSEY'S ABDUCTION HE HAD BEEN
RECOMMENDED FOR PROMOTION TO FOREIGN SERVICE OFFICER, CLASS 6.
SUBSEQUENT TO THE DETERMINATION OF HIS MISSING STATUS, MR. RAMSEY WAS
NOMINATED BY THE PRESIDENT FOR THE RECOMMENDED PROMOTION AND BY AND WITH
THE ADVICE AND CONSENT OF THE SENATE WAS APPOINTED BY THE PRESIDENT TO
THE OFFICE OF FOREIGN SERVICE OFFICER, CLASS 6. WE ASSUME FROM YOUR
LETTER THAT THERE IS AVAILABLE NO CHANNEL OF COMMUNICATION WITH MR.
RAMSEY THROUGH WHICH HIS COMMISSION MIGHT BE TRANSMITTED TO HIM OR
THROUGH WHICH HE MIGHT SUBMIT TO THE DEPARTMENT NOTICE OF HIS ACCEPTANCE
OF THE COMMISSION, THE REQUIRED OATH OF OFFICE AND THE AFFIDAVIT
PROVIDED BY 5 U. S. C. 21A AND DEPARTMENT REGULATIONS.
REGARDING THE AFFIDAVIT 5 U. S. C. 21A AND 21B PROVIDE AS FOLLOWS:
"SEC. 21A. AFFIDAVIT BY APPOINTED OFFICERS; NO CONSIDERATION PAID
FOR APPOINTMENT.
"EACH INDIVIDUAL APPOINTED AFTER DECEMBER 11, 1926, AS A CIVIL
OFFICER OF THE UNITED STATES BY THE PRESIDENT, BY AND WITH THE ADVICE
AND CONSENT OF THE SENATE, OR BY THE PRESIDENT ALONE, OR BY A COURT OF
LAW, OR BY THE HEAD OF A DEPARTMENT, SHALL, WITHIN THIRTY DAYS AFTER THE
EFFECTIVE DATE OF HIS APPOINTMENT, FILE WITH THE OATH OF OFFICE REQUIRED
BY SECTION 16 OF THIS TITLE AN AFFIDAVIT STATING THAT NEITHER HE NOR
ANYONE ACTING IN HIS BEHALF HAS GIVEN, TRANSFERRED, PROMISED, OR PAID
ANY CONSIDERATION FOR OR IN THE EXPECTATION OR HOPE OF RECEIVING
ASSISTANCE IN SECURING SUCH APPOINTMENT.
"NO SALARY SHALL BE APID TO ANY INDIVIDUAL REQUIRED UNDER SECTION
"SEC. 21B. SAME; FAILURE TO MAKE AFFIDAVIT; PENALTY.
"NO SALARY SHALL BE PAID TO ANY INDIVIDUAL REQUIRED UNDER SECTION 21A
OF THIS TITLE TO FILE AN AFFIDAVIT UNTIL SUCH AFFIDAVIT HAS BEEN FILED."
THE ISSUE PRESENTED BY YOUR LETTER, THEREFORE, IS WHETHER IN THE
ABSENCE OF A STANDARD FORM 61-A (CIVIL OFFICER APPOINTMENT AFFIDAVITS)
AS DEFINED IN 5 U. S. C. 21A AND B, OR ITS EQUIVALENT, EXECUTED BY MR.
RAMSEY, YOU MAY CERTIFY FOR CREDIT TO HIS ACCOUNT THE SALARY AND
ALLOWANCES OF A FOREIGN SERVICE OFFICER, CLASS 6.
A SOMEWHAT ANALOGOUS SITUATION WAS FAVORABLY CONSIDERED BY THE
CONGRESS IN ENACTING THE ACT OF OCTOBER 14, 1942, 56 STAT. 787, NOW
CODIFIED IN 10 U. S. C. 3312. THAT SECTION IS HERE QUOTED FOR
CONVENIENCE.
"(A) AN OFFICER WHO IS PROMOTED IN THE REGULAR ARMY IS CONSIDERED TO
HAVE ACCEPTED HIS PROMOTION ON THE DATE OF THE ORDER ANNOUNCING IT,
UNLESS HE EXPRESSLY DECLINES THE PROMOTION. HE IS ENTITLED TO THE PAY
AND ALLOWANCES OF THE HIGHER GRADE FROM THAT DATE, UNLESS ENTITLED TO
THEM FROM AN EARLIER DATE UNDER ANOTHER PROVISION OF LAW.
"(B) AN OFFICER NEED NOT TAKE THE OATH OF OFFICE UPON PROMOTION IF
HIS SERVICE SINCE LAST TAKING IT HAS BEEN CONTINUOUS."
THAT LEGISLATION STEMMED PRIMARILY FROM THE ADMINISTRATIVE PROBLEMS
ENCOUNTERED IN DELIVERING NOTICES OF PROMOTIONS TO THOUSANDS OF
COMMISSIONED MILITARY OFFICERS LOCATED AT VARIOUS POINTS THROUGHOUT THE
GLOBE AND IN RECEIVING THEIR ACCEPTANCES AND OATHS OF OFFICE. SIMILAR
LEGISLATION THEREAFTER WAS OBTAINED BY WHAT ARE TODAY THE SEVERAL
MILITARY DEPARTMENTS. ONLY INCIDENTALLY WAS THE LAST QUOTED LANGUAGE
CONSIDERED IN REGARD TO THE MISSING PERSONS ACT.
OTHER THAN THE ACT OF AUGUST 14, 1937, AS AMENDED, 5 U. S. C. 17B,
RELIEVING EMPLOYEES - AS DISTINGUISHED FROM OFFICERS - FROM THE
REQUIREMENT FOR RENEWING THEIR OATHS OF OFFICE UPON PROMOTION OR OTHER
CHANGE OF STATUS, WE ARE AWARE OF NO LEGISLATION THAT MIGHT BE CONSTRUED
AS RELIEVING CIVIL OFFICERS OF THE REQUIREMENTS OF 5 U. S. C. 21A AND B.
WE CAREFULLY HAVE REVIEWED THE SEVERAL STATUTES AND DECISIONS
MENTIONED IN YOUR LETTER AND HAVE RESEARCHED OTHER SOURCES. NOWHERE,
HOWEVER, DO WE FIND ANYTHING TO SUGGEST THAT THE RULE REQUIRING THE
EXECUTION OF THE AFFIDAVIT CALLED FOR BY 5 U. S. C. 21A HAS BEEN
MODIFIED.
WE MUST CONCLUDE, THEREFORE, THAT THE DEPARTMENT'S REGULATION (3 FAM
124.1-5, 124.1-6) IS BASED UPON EXISTING LAW AND THAT YOU ARE WITHOUT
AUTHORITY TO CERTIFY FOR CREDIT TO MR. RAMSEY'S ACCOUNT VOUCHERS
REFLECTING THE SALARY AND ALLOWANCES OF A FOREIGN SERVICE OFFICER, CLASS
6.
B-159542, JUL. 21, 1966
TO MR. JOSEPH E. LIPINSKI:
WE REFER TO YOUR LETTER OF MAY 29, 1966, AND ENCLOSURES, REQUESTING
REVIEW OF OUR OFFICE SETTLEMENT DATED APRIL 29, 1966, WHICH DISALLOWED
YOUR CLAIM FOR PAYMENT OF SEVEN HOURS COMPENSATION WHICH WAS
ADMINISTRATIVELY DEDUCTED FROM YOUR PAY AS A RESULT OF YOUR BEING
CHARGED ABSENCE WITHOUT LEAVE WHILE EMPLOYED WITH THE DEPARTMENT OF THE
ARMY, HEADQUARTERS, UNITED STATES ARMY, PACIFIC.
THE RECORD DISCLOSES THAT YOU WERE CITED AS BEING ABSENT WITHOUT
LEAVE FOR FOUR HOURS ON OCTOBER 14 AND THREE HOURS ON OCTOBER 16, 1964,
AND THAT YOUR SALARY WAS REDUCED ACCORDINGLY. YOU APPEALED THE ACTION
TO YOUR ADMINISTRATIVE OFFICE CONTENDING THAT THE CHARGE TO ABSENCE
WITHOUT LEAVE AND CORRESPONDING PAY REDUCTION CONSTITUTED AN "ADVERSE
ACTION.' HOWEVER, YOUR ADMINISTRATIVE OFFICE TREATED YOUR REQUEST FOR
REVIEW AS A TYPE I GRIEVANCE UNDER SECTION 2 OF DEPARTMENT OF THE ARMY
CIVILIAN PERSONNEL REGULATION E2 RATHER THAN AS AN APPEAL FROM AN
ADVERSE ACTION UNDER SECTION 5 OF CPR E2. YOUR GRIEVANCE WAS PROCESSED
THROUGH THE APPROPRIATE ADMINISTRATIVE CHANNELS IN ACCORDANCE WITH THE
PROVISIONS OF CPR E2.2. THE RECORD SHOWS THAT YOU WERE EXTENDED AMPLE
OPPORTUNITY TO PRESENT YOUR CASE.
ON JULY 1, 1965, A FINAL DECISION ON YOUR GRIEVANCE WAS RENDERED BY
THE ACTING DIRECTOR OF CIVILIAN PERSONNEL, HEADQUARTERS, DEPARTMENT OF
THE ARMY. THAT DECISION SUSTAINED THE ACTION OF YOUR ADMINISTRATIVE
OFFICE.
YOU APPEALED TO THE SAN FRANCISCO REGIONAL OFFICE OF THE CIVIL
SERVICE COMMISSION WHICH, BY DECISION DATED SEPTEMBER 1, 1965, HELD THAT
THE ACTION OF YOUR ADMINISTRATIVE OFFICE DID NOT CONSTITUTE AN ADVERSE
ACTION SUBJECT TO APPELLATE REVIEW BY THE COMMISSION. UPON FURTHER
APPEAL, THE COMMISSION'S BOARD OF APPEALS AND REVIEW AFFIRMED THE
DECISION OF THE SAN FRANCISCO REGION.
THE SOLE QUESTION FOR OUR CONSIDERATION IN THIS MATTER IS WHETHER OR
NOT YOU ARE ENTITLED TO BE COMPENSATED FOR THE SEVEN HOURS
ADMINISTRATIVELY CHARGED AS ABSENCE WITHOUT LEAVE. THE ISSUE OF WHETHER
THE ACTION TAKEN BY YOUR ADMINISTRATIVE OFFICE CONSTITUTED AN "ADVERSE
ACTION" HAS BEEN DECIDED BY THE CIVIL SERVICE COMMISSION AND SUCH
DECISION IS NOT SUBJECT TO REVIEW BY THIS OFFICE.
WE HAVE RULED CONSISTENTLY THAT THE PLACING OF AN EMPLOYEE IN AN
ABSENCE WITHOUT LEAVE STATUS IS A MATTER WITHIN ADMINISTRATIVE
DISCRETION AND THAT IT IS LEGALLY PROPER FOR AN ADMINISTRATIVE OFFICE TO
TAKE SUCH ACTION WHEN AN EMPLOYEE VOLUNTARILY AND WITHOUT AUTHORIZATION
ABSENTS HIMSELF FROM AN OFFICIAL DUTY STATUS. SEE 44 COMP. GEN. 274.
WE FIND NO PROPER BASIS FOR HOLDING THAT YOUR ADMINISTRATIVE OFFICE
ACTED OUTSIDE THE LIMITS OF ITS DISCRETIONARY AUTHORITY IN PLACING YOU
IN AN ABSENCE WITHOUT LEAVE STATUS. THEREFORE, OUR SETTLEMENT OF APRIL
29, 1966, DISALLOWING YOUR CLAIM IS SUSTAINED.
B-159602, JUL. 21, 1966
TO WARD AND PAUL, INC. :
REFERENCE IS MADE TO YOUR LETTER OF JUNE 30, 1966, PROTESTING THE
REJECTION OF YOUR BID FOR STENOGRAPHIC REPORTING SERVICES TO BE
PERFORMED FOR THE UNITED STATES CIVIL SERVICE COMMISSION FOR THE PERIOD
BEGINNING JULY 1, 1966, AND ENDING JUNE 30, 1967.
THE INVITATION FOR BIDS PROVIDED THAT BIDS PROPOSING PRICES IN EXCESS
OF FOUR SPECIFIED RATES AT WHICH SINGLE COPIES OF TRANSCRIPTS ARE TO BE
SOLD TO THE PUBLIC "WILL NOT BE CONSIDERED.' HOWEVER, YOUR BID EXCEEDED
THESE MAXIMUM RATES FOR ITEMS 3 AND 6 BY $0.20 AND $0.10, RESPECTIVELY.
AFTER THE OPENING OF BIDS, YOU EXPLAINED THAT THE MAXIMUM RATES WERE
EXCEEDED IN ERROR WHEN THE TYPIST WHO WAS INSTRUCTED TO USE THE MAXIMUM
FIGURES INCLUDED IN THE INVITATION BECAME CONFUSED AND ENTERED IN THE
BID FIGURES FROM ANOTHER BID. IN THE CIRCUMSTANCES, YOU REQUESTED YOUR
BID TO BE CORRECTED. UPON CONSIDERATION OF THE MATTER, THE CONTRACTING
OFFICER REJECTED YOUR BID AS NONRESPONSIVE.
IN A SIMILAR CASE, B-149141, JUNE 22, 1962, OUR OFFICE HELD THAT A
BID FOR STENOGRAPHIC REPORTING SERVICES WHICH VIOLATED THE PROVISIONS OF
THE INVITATION WITH RESPECT TO THE PRICES TO BE CHARGED FOR COPIES OF
TRANSCRIPTS WAS NONRESPONSIVE IN A MATERIAL RESPECT AND COULD NOT BE
CORRECTED.
IN REGARD TO YOUR ALLEGATION OF ERROR IN EXCEEDING THE MAXIMUM
PRICES, IT WAS STATED IN OUR DECISION OF JUNE 5, 1959, B-139329, 38
COMP. GEN. 819, AS FOLLOWS:
"THE QUESTION THEN ARISES AS TO WHETHER A BID WHICH IS NOT RESPONSIVE
TO THE INVITATION MAY BE CORRECTED ON THE BASIS OF AN ALLEGATION THAT
THE REASON FOR THE BID BEING NONRESPONSIVE WAS AN OVERSIGHT OR A
MISTAKE. IN OUR DECISION OF JANUARY 30, 1958, B-134931, WHICH INVOLVED
A SITUATION WHERE A BIDDER HAD INADVERTENTLY SUBMITTED THE WRONG SAMPLE
WITH ITS BID AND ATTEMPTED TO SUBMIT A NEW SAMPLE AFTER THE BID OPENING,
IT WAS STATED:
"THE QUESTION AS TO WHETHER A BID IS RESPONSIVE TO THE INVITATION IS
FOR DETERMINATION UPON THE BASIS OF THE BID IS SUBMITTED AND IT IS NOT
BELIEVED THAT IT WOULD BE PROPER TO CONSIDER THE REASON FOR THE
UNRESPONSIVENESS, WHETHER DUE TO MISTAKE OR OTHERWISE.'
"IT IS PROBABLE THAT THE MAJORITY OF UNRESPONSIVE BIDS ARE DUE TO
OVERSIGHT OR ERROR, SUCH AS THE FAILURE TO QUOTE A PRICE, TO SIGN THE
BID, TO FURNISH A BID BOND, TO SUBMIT REQUIRED SAMPLES OR DATA, OR THE
SUBMISSION OF THE WRONG SAMPLE, INCOMPLETE DATA, OR STATEMENTS THE
ACTUAL MEANING OF WHICH WAS NOT INTENDED, ETC. AN UNRESPONSIVE BID DOES
NOT CONSTITUTE AN OFFER WHICH MAY PROPERLY BE ACCEPTED, AND TO PERMIT A
BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING, ADDING TO, OR
DELETING A MATERIAL PART OF THE BID ON THE BASIS OF AN ERROR ALLEGED
AFTER THE OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A
NEW BID. IT IS OUR OPINION THAT AN ALLEGATION OF ERROR IS PROPER FOR
CONSIDERATION ONLY IN CASES WHERE THE BID IS RESPONSIVE TO THE
INVITATION AND IS OTHERWISE PROPER FOR ACCEPTANCE.'
THE REJECTION OF YOUR BID IN THE IMMEDIATE CASE APPEARS TO HAVE BEEN
PROPER AND IN LINE WITH PREVIOUS PRECEDENT OF OUR OFFICE. YOUR PROTEST
IS ACCORDINGLY DENIED.
B-159617, JUL. 21, 1966
TO MR. ROBERT S. DRAKE, JR. :
PURSUANT TO THE POWER OF ATTORNEY SUBMITTED WITH YOUR LETTER OF JUNE
22, 1966, WE HAVE CONSIDERED YOUR LETTERS OF JUNE 25 AND OCTOBER 14,
1965, AS AN APPEAL FROM THE GENERAL ACCOUNTING OFFICE DISALLOWANCE OF
$1,200 ON THE CLAIM OF KATIE HUNT AND J. W. HUNT, COLE CAMP, MISSOURI,
FOR $1,500, ARISING FROM DAMAGE TO THEIR PROPERTY BY AN AIR FORCE
CONTRACTOR'S LAYING OF A CABLE LINE.
THE SETTLEMENT OF $300, CERTIFIED FOR PAYMENT MAY 13, 1965, WAS NOT
ACCEPTED.
THERE FOLLOWS A TABULATION OF THE AMOUNTS CLAIMED AND THE AMOUNTS
ALLOWED UNDER THE SETTLEMENT.
CHART
AMT AMT AMT ITEM
CLAIMED NOT RECMD RECMD ---- -
----- 1. HELICOPTER LANDING--- $ 15.00 $ OK $
DAMAGE TO WHEAT 2. TREE DAMAGE 20.00 OK
CATTLE OUT 40.00 10.00 30.00 4.
100.00 OK 100.00 5. LOSS OF DIRT
-0- 6. GENERAL DAMAGE 150.00 105.00 45
200.00 110.00 90.00 8. LOSS OF TOP SOIL
-0- 9. INSULTS--- TIME, ETC. 35.00 35.00 -
TOTAL $1,500.00 $1,200.00 $300.00
THE AMOUNTS WERE BASED ON A REPORT OF THE UNITED STATES ARMY
ENGINEERS, WHICH SETS FORTH IN CONSIDERABLE DETAIL THE FINDINGS OF THEIR
CLAIM INVESTIGATION AND THE APPRAISED VALUATION OF THE VARIOUS ITEMS OF
DAMAGE. THE ITEM-3 REDUCED ALLOWANCE OF $30 WAS AN ESTIMATE OF THE
CORPS OF ENGINEERS APPRAISER FOR 15 HOURS OF LABOR AT $2 PER HOUR, WHICH
MR. HUNT ALLEGED WAS REQUIRED TO ROUND UP AND ACCOUNT FOR CATTLE THAT
STRAYED BECAUSE OF THE CONTRACTOR'S FENCE DAMAGE. THE ITEM-5 TOTAL
DISALLOWANCE FOR LOSS OF DIRT PUSHED ONTO A NEIGHBOR'S PROPERTY WAS
REPORTED BECAUSE DAMAGE WAS NOT SUBSTANTIATED. THE ITEM-6 REDUCED
ALLOWANCE OF $45 FOR GENERAL DAMAGE WAS REPORTED ADEQUATE TO RESTORE
COMPACTION ON AN AREA OF THE RIGHT-OF-WAY 1 ROD BY 74 RODS WHERE GRASS
WAS DESTROYED, THE REPORT STATING THAT A $64 LOSS OF PASTURE USE FOR AN
ADDITIONAL YEAR WAS COVERED BY A SUPPLEMENTAL AGREEMENT OF MARCH 5,
1964, WHICH PROVIDED $36 FOR ORDINARY DAMAGE ON THE RIGHT-OF-WAY,
INCLUDING $4 FOR LOSS OF PASTURE USE. THE ITEM-7 REDUCED ALLOWANCE OF
$90 FOR RELOCATION OF 75 FEET OF FENCE REPRESENTS A REPORTED APPRAISED
VALUE OF $80 FOR TIME AND LABOR OF ONE MAN AND ONE TRACTOR PLUS AN
ADDITIONAL $10. THE ITEM-8 TOTAL DISALLOWANCE OF $790 FOR LOSS OF TOP
SOIL USED IN CABLE COVERING AND PADDING WAS REPORTED BECAUSE THE
SUPPLEMENTAL AGREEMENT COVERED SUCH PASTURE RESTORATION ON 148 SQUARE
RODS AT $0.20 PER ROD FOR FERTILIZATION OF GROUND AND CURE OF ORDINARY
DEFICIENCIES ON THE CABLE LINE. THE ITEM-9 TOTAL DISALLOWANCE FOR
INSULTS AND TIME WAS REPORTED BECAUSE THERE WAS NO PROOF OF DAMAGE.
IN ORDER FOR YOU TO UNDERSTAND THE FUNCTION OF OUR OFFICE IN THIS
MATTER IT SHOULD BE POINTED OUT THAT WE MUST RELY UPON THE WRITTEN
RECORD SUBMITTED, AND, ABSENT CLEAR MISTAKE ON THE PART OF THE
ADMINISTRATIVE OFFICE--- IN THIS CASE THE CORPS OF ENGINEERS, WE ACCEPT
THE FACTS AS ADMINISTRATIVELY REPORTED AS ACCURATE.
A COMPLETE REVIEW OF THE ENTIRE RECORD HAS BEEN MADE, AND WE FIND NO
REASON TO OFFER A SETTLEMENT FOR MORE THAN $300.
B-159661, JUL. 21, 1966
TO OFFICE OF THE ARMY INSPECTOR GENERAL, HEADQUARTERS, PHILIPPINE
ARMY:
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 12, 1966, TO THE
U.S. ARMY FINANCE CENTER--- WHICH WAS FORWARDED TO THIS OFFICE FOR
APPROPRIATE ACTION--- CONCERNING YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT
PAY BELIEVED DUE YOU BASED ON YOUR DISCHARGE FROM MILITARY SERVICE ON
MAY 27, 1949, AS A PHILIPPINE SCOUT, UNITED STATES ARMY. THIS MATTER
WAS THE SUBJECT OF OUR SETTLEMENT DATED JULY 30, 1965, WHICH ADVISED YOU
THAT YOUR CLAIM WAS BARRED BY VIRTUE OF THE PROVISIONS OF THE ACT OF
OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, AS AMENDED, 31 U.S.C. 71A.
THAT ACT READS IN PERTINENT PART:
"/1) EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE
BY THE GENERAL ACCOUNTING OFFICE * * * SHALL BE FOREVER BARRED UNLESS
SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN
AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN
TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED * * *.'
YOU STATE THAT YOUR CLAIM WAS FILED AUGUST 16, 1957, WITH THE U.S.
ARMY FINANCE CENTER AND SINCE SUCH CLAIM WAS ACKNOWLEDGED BY THE CENTER
WELL WITHIN THE TIME LIMITATION IMPOSED BY THE ACT, YOU FEEL THAT THE
LEGAL REQUIREMENTS RELATING TO THE TIMELY FILING OF YOUR CLAIM HAVE BEEN
SATISFIED.
THIS OFFICE HAS NO RECORD OF ANY CLAIM BEING PRESENTED BY YOU OR ON
YOUR BEHALF PRIOR TO YOUR LETTER DATED APRIL 24, 1965, WHICH WAS
RECEIVED HERE ON MAY 24, 1965. IF YOU FILED A CLAIM WITH ANOTHER AGENCY
OF THE FEDERAL GOVERNMENT AND SUCH CLAIM WAS NOT FORWARDED FOR OUR
CONSIDERATION, SUCH ACTION OR LACK OF ACTION COULD NOT IN ANY WAY AFFECT
THE OPERATION OF THE ACT OF OCTOBER 9, 1940. BY THE PROVISIONS OF THAT
STATUTE, IT IS NECESSARY FOR THIS OFFICE TO RECEIVE A CLAIM BEFORE THE
10-YEAR PERIOD HAS ELAPSED, IF SUCH CLAIM IS TO BE RECOGNIZED AND ITS
MERITS CONSIDERED.
SINCE YOU WERE DISCHARGED FROM THE SERVICE ON MAY 27, 1949, AND YOUR
CLAIM WAS NOT RECEIVED IN THIS OFFICE ON OR BEFORE MAY 27, 1959,
CONSIDERATION OF SUCH CLAIM IS SPECIFICALLY PROHIBITED BY LAW AND THE
ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED JULY 30, 1965,
IS SUSTAINED.
B-139218, JUL. 20, 1966
TO MR. HOWARD C. SMILEY:
THIS REFERS TO YOUR UNDATED LETTER AND ENCLOSURES, RECEIVED HERE ON
JUNE 7, 1966, REQUESTING REVIEW OF OUR SETTLEMENT OF MARCH 18, 1966,
WHICH DISALLOWED YOUR CLAIM FOR RETROACTIVE ADJUSTMENT IN COMPENSATION
AS AN EMPLOYEE OF THE DEFENSE DEPOT MEMPHIS, DEFENSE SUPPLY AGENCY,
FORMERLY THE MEMPHIS GENERAL DEPOT, DEPARTMENT OF THE ARMY.
THE RECORD SHOWS THAT BY NOTIFICATION OF PERSONNEL ACTION
(HEREINAFTER REFERRED TO AS STANDARD FORM 50) DATED DECEMBER 3, 1956,
YOU WERE DEMOTED AT YOUR OWN REQUEST FROM GENERAL TRANSPORTATION
OFFICER, GRADE GS-11, STEP 1, TO SUPERVISORY FREIGHT TRAFFIC OFFICER,
GRADE GS-9, STEP 7, EFFECTIVE DECEMBER 9, 1956. AS SUPERVISORY FREIGHT
TRAFFIC OFFICER, YOUR MAJOR DUTIES INVOLVED SERVING AS ASSISTANT CHIEF
OF THE DEPOT TRANSPORTATION DIVISION. YOU ALSO HAD RESPONSIBILITY TO
SERVE AS THE ACTING CHIEF OF THE TRANSPORTATION DIVISION IN THE ABSENCE
OF THE DIVISION CHIEF.
ON DECEMBER 21, 1956, YOUR ADMINISTRATIVE OFFICE ISSUED SPECIAL
ORDERS NO. 95 APPOINTING YOU TO ACT AS ASSISTANT TRANSPORTATION OFFICER
AND TRANSPORTATION AGENT. AT THAT TIME THE CHIEF OF YOUR DIVISION WAS
MAJOR EDWARD B. SMITH. BY SPECIAL ORDERS NO. 53, DATED JULY 23, 1957,
YOUR APPOINTMENTS AS ASSISTANT TRANSPORTATION OFFICER AND TRANSPORTATION
AGENT WERE RESCINDED AND UNDER THE SAME ORDER YOU WERE APPOINTED ACTING
CHIEF OF THE TRANSPORTATION DIVISION AND CONTRACTING OFFICER, EFFECTIVE
AUGUST 1, 1957. YOUR APPOINTMENT OR DESIGNATION AS ACTING CHIEF WAS DUE
TO THE RELEASE OF MAJOR SMITH. HOWEVER, YOU CONTINUED TO HOLD THE
POSITION OF SUPERVISORY FREIGHT TRAFFIC OFFICER, GRADE GS-9, STEP 7. BY
SPECIAL ORDERS NO. 46, DATED JULY 2, 1958, YOUR APPOINTMENT AS ACTING
CHIEF OF THE TRANSPORTATION DIVISION WAS RESCINDED AND CAPTAIN BEN H.
YORK WAS APPOINTED AS TRANSPORTATION OFFICER.
EFFECTIVE APRIL 12, 1959, YOU WERE DEMOTED FROM SUPERVISORY FREIGHT
TRAFFIC OFFICER, GRADE GS-9, STEP 7, TO ADMINISTRATIVE ASSISTANT, GRADE
GS-7, WITH SALARY RETENTION AT GRADE GS-9, STEP 7 (STANDARD FORM 50,
DATED APRIL 10, 1959). YOU APPEALED THIS ADVERSE ACTION TO THE CIVIL
SERVICE COMMISSION (FIFTH REGION) WHICH BY DECISION DATED MAY 6, 1960,
ORDERED THAT YOU BE RESTORED TO YOUR FORMER POSITION RETROACTIVE TO THE
DATE OF YOUR DEMOTION. BY STANDARD FORM 50, DATED MAY 10, 1960, YOU
WERE RESTORED TO SUPERVISORY FREIGHT TRAFFIC OFFICER, GRADE GS-9, STEP
7, EFFECTIVE APRIL 12, 1959.
ON MAY 20, 1960, THE INDUSTRIAL RELATIONS OFFICE OF THE MEMPHIS DEPOT
NOTIFIED YOU THAT YOUR POSITION WAS TO BE ABOLISHED EFFECTIVE JULY 2,
1960. IN A SECOND LETTER OF THE SAME DATE YOU WERE ADVISED THAT A
VACANT POSITION EXISTED AS TRANSPORTATION SPECIALIST, GRADE GS-8, WHICH
YOU COULD ASSUME ON JULY 3, 1960. BY STANDARD FORM 50, DATED JUNE 30,
1960, YOU WERE DEMOTED EFFECTIVE JULY 3, 1960, TO THE POSITION OF
TRANSPORTATION SPECIALIST, GRADE GS-8, WITH SALARY RETENTION BENEFITS.
ON AUGUST 14, 1960, YOU WERE PROMOTED TO ADMINISTRATIVE OFFICER, GRADE
GS-9, STEP 7 (STANDARD FORM 50, DATED AUGUST 10, 1960).
YOU APPEALED THE REDUCTION IN FORCE ACTION OF JULY 3, 1960, TO THE
CIVIL SERVICE COMMISSION, WHICH FOUND THAT YOU SHOULD HAVE BEEN OFFERED
THE POSITION OF ADMINISTRATIVE OFFICER, GRADE GS-9, RATHER THAN
TRANSPORTATION SPECIALIST, GRADE GS-8, UPON YOUR REDUCTION IN FORCE. BY
DECISION OF AUGUST 30, 1960, THE CIVIL SERVICE COMMISSION (FIFTH REGION)
ORDERED THAT YOU BE REASSIGNED TO THE POSITION OF ADMINISTRATIVE OFFICER
RETROACTIVE TO THE DATE OF YOUR REDUCTION. IN ACCORDANCE WITH THAT
DECISION YOU WERE REASSIGNED TO THE POSITION OF ADMINISTRATIVE OFFICER,
GRADE GS-9, STEP 7, EFFECTIVE JULY 3, 1960 (STANDARD FORM 50, DATED
SEPTEMBER 9, 1960).
BASED ON THE FACTS SET FORTH ABOVE, YOU CONTEND THAT DURING THE
PERIOD AUGUST 1, 1957, TO JULY 3, 1960, YOU PERFORMED THE DUTIES OF
TRANSPORTATION OFFICER WHICH SHOULD HAVE ENTITLED YOU TO COMPENSATION AT
THE RATE OF GRADE GS-12. ADDITIONALLY, YOU CONTEND THAT HAD YOU BEEN
PROMOTED TO GRADE GS-12 ON AUGUST 1, 1957 (WHICH WAS THE EFFECTIVE DATE
OF YOUR APPOINTMENT AS ACTING CHIEF OF THE TRANSPORTATION DIVISION, PER
SPECIAL ORDERS NO. 53) YOU SUBSEQUENTLY WOULD HAVE BEEN ELIGIBLE FOR A
PROMOTION TO GRADE GS-13. THEREFORE, YOU REQUEST THAT YOUR SALARY BE
ADJUSTED RETROACTIVELY FOR THE PERIOD AUGUST 1, 1957, TO THE PRESENT
DATE.
WE HAVE THOROUGHLY EXAMINED THE FILE IN YOUR CASE AND WE FAIL TO FIND
ANY EVIDENCE OF YOUR BEING APPOINTED TO THE POSITION OF TRANSPORTATION
OFFICER WHICH WE ASSUME CARRIED A GRADE GS-12 CLASSIFICATION DURING THE
PERIOD UNDER CONSIDERATION. ON THE CONTRARY, THE OFFICIAL RECORDS SHOW
THAT FROM DECEMBER 9, 1956, TO JULY 3, 1960 (TAKING INTO CONSIDERATION
THE FACT THAT YOUR DEMOTION ON APRIL 12, 1959, WAS LATER CANCELED) YOU
HELD THE POSITION OF SUPERVISORY FREIGHT TRAFFIC OFFICER, GRADE GS-9,
STEP 7. THE FACT THAT YOU MAY HAVE PERFORMED THE DUTIES OF A
TRANSPORTATION OFFICER FOR APPROXIMATELY ONE YEAR UNDER A DESIGNATION AS
ACTING TRANSPORTATION OFFICER DOES NOT ENTITLE YOU TO THE SALARY
SPECIFIED FOR THE POSITION OF TRANSPORTATION OFFICER. WHETHER OR NOT
YOU SHOULD HAVE BEEN APPOINTED TO GRADE GS-12 IS NOT A MATTER WITHIN THE
JURISDICTION OF THIS OFFICE BUT IS FOR THE CONSIDERATION OF YOUR
ADMINISTRATIVE OFFICE AND THE CIVIL SERVICE COMMISSION.
THE RULE IS WELL ESTABLISHED THAT THE PERFORMANCE OF DUTIES OF A
HIGHER CLASSIFICATION THAN THAT TO WHICH THE EMPLOYEE IS OFFICIALLY
ASSIGNED DOES NOT, IN ITSELF, EFFECT A CHANGE IN CLASSIFICATION NOR DOES
IT ENTITLE THE EMPLOYEE TO ADDITIONAL COMPENSATION FOR THE DUTIES
PERFORMED. A FEDERAL EMPLOYEE IS ENTITLED ONLY TO THE COMPENSATION OF
THE POSITION TO WHICH HE PROPERLY IS APPOINTED, REGARDLESS OF THE DUTIES
AND RESPONSIBILITIES ASSIGNED TO HIM. SEE COLEMAN V. UNITED STATES, 100
CT.CL. 41; UNITED STATES V. MCLEAN, 95 U.S. 750; 15 COMP. GEN. 593;
6 ID. 133.
OUR DECISION OF JULY 6, 1965, B-50602, WHICH WAS CITED BY YOU,
INVOLVED THE QUESTION OF WHETHER AN EMPLOYEE WHO WAS DEMOTED FROM GRADE
GS-14, STEP 4, TO GRADE GS-13, STEP 10, WAS ENTITLED TO RETAIN THE
HIGHER GS-13 SALARY WHICH HE RECEIVED BETWEEN THE DATE OF HIS DEMOTION
AND THE DATE OF HIS RETROACTIVE RESTORATION TO HIS FORMER GRADE. OUR
DECISION HELD ONLY THAT THERE IS NO REQUIREMENT TO COLLECT FROM AN
EMPLOYEE AN AMOUNT EARNED DURING A PERIOD OF IMPROPER DEMOTION IN EXCESS
OF THE RETROACTIVE COMPENSATION OTHERWISE DUE. THAT DECISION IS NOT
APPLICABLE TO THE FACTS OF YOUR CASE.
AS STATED ABOVE, THERE IS NO EVIDENCE SHOWING THAT YOU WERE
OFFICIALLY APPOINTED TO A POSITION IN GRADE GS-12 DURING THE PERIOD OF
YOUR CLAIM. THEREFORE, IN ACCORDANCE WITH THE RULE EXPRESSED ABOVE,
THERE IS NO BASIS TO ADJUST YOUR COMPENSATION FOR THE PERIOD IN
QUESTION.
B-145324, JUL. 20, 1966
TO ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:
REFERENCE IS MADE TO A LETTER DATED MAY 25, 1966, FROM MR. J. E.
MOODY, ACTING ADMINISTRATOR, REQUESTING THAT THE GENERAL SERVICES
ADMINISTRATION BE AUTHORIZED TO DEVIATE FROM THE PROVISIONS OF THE
GENERAL ACCOUNTING OFFICE POLICY AND PROCEDURES MANUAL TO THE EXTENT OF
USING COMMERCIAL SHIPPING DOCUMENTS INSTEAD OF GOVERNMENT BILLS OF
LADING TO COVER REPETITIVE TYPE SMALL SHIPMENTS OF RETIRED GOVERNMENT
RECORDS FROM FEDERAL RECORDS CENTERS AT CHICAGO, ILLINOIS, AND KANSAS
CITY, MISSOURI, TO CERTAIN SPECIFIED DESTINATIONS ON A TEST BASIS FOR A
PERIOD OF SIX MONTHS, UTILIZING THE FACILITIES OF UNITED PARCEL SERVICE.
A SOMEWHAT SIMILAR REQUEST WAS SUBMITTED HERE ON APRIL 15, 1966,
DEALING WITH A PROJECTED ANNUAL SHIPMENT OF 200,000 POUNDS OF RETIRED
GOVERNMENT RECORDS BY THE NATIONAL ARCHIVES AND RECORDS SERVICE OF THE
GENERAL SERVICES ADMINISTRATION FROM 15 FEDERAL RECORDS CENTERS TO
VARIOUS GOVERNMENT OFFICES THROUGHOUT THE COUNTRY. THIS EARLIER REQUEST
ANTICIPATED THE TRANSPORTATION OF THESE RETIRED RECORDS, VALUED AT NOT
TO EXCEED 3 1/2 CENTS PER POUND, BY REA AIR OR SURFACE EXPRESS, OR BY
MOTOR FREIGHT, WITH A PROJECTED ANNUAL SAVING OF ABOUT $105,000, AND ON
MAY 23, 1966 (B-145324), THE AUTHORITY TO USE COMMERCIAL SHIPPING
DOCUMENTS INSTEAD OF GOVERNMENT BILLS OF LADING FOR SUCH SHIPMENTS WAS
GRANTED BY THIS OFFICE.
THE PRESENT REQUEST IS LIMITED TO SMALL SHIPMENTS OF RETIRED RECORDS,
SIMILAR IN BOTH TYPE AND VALUATION TO THOSE PREVIOUSLY CONSIDERED, FROM
FEDERAL RECORDS CENTERS AT REGION 5, CHICAGO, ILLINOIS, AND AT REGION 6,
KANSAS CITY, MISSOURI, TO REPETITIVE DESTINATIONS, UTILIZING THE
SERVICES AND THE COMMERCIAL SHIPPING DOCUMENTS OF THE UNITED PARCEL
SERVICE. MR. MOODY'S LETTER REPORTS THAT UPS RATES FOR THE PRESENTLY
CONTEMPLATED MOVEMENTS RANGE FROM 4 1/2 TO 7 CENTS PER POUND, PLUS 24
CENTS PER PACKAGE AND THAT THE MAXIMUM CHARGE PER SHIPMENT IN THE AREA
UNDER CONSIDERATION AT CURRENT UPS RATES WILL BE $3.74. THE LETTER ALSO
STATES THAT APPROXIMATELY 42,000 POUNDS OF RETIRED RECORDS THAT ARE NOW
DELIVERED ANNUALLY FROM THESE TWO CENTERS VIA UNITED STATES POSTAL
FACILITIES AT THE RATE OF 70 CENTS PER POUND, COULD BE SENT BY UNITED
PARCEL SERVICE AT A SHARPLY REDUCED COST TO THE GOVERNMENT. THE LETTER
FURTHER STATES THAT THE NORMAL COMMERCIAL SHIPPING DOCUMENTS OF THIS
CARRIER DO NOT READILY ADMIT OF THE USE OF THE USUAL BILL OF LADING
FORM. THE TIME AND EXPENSE INVOLVED IN THE DAILY PREPARATION OF A
SEPARATE UNITED STATES GOVERNMENT BILL OF LADING FOR EACH REPETITIVE
DESTINATION WOULD MATERIALLY REDUCE THE FEASIBILITY OF, AND THE SAVINGS
ACCRUING FROM, THE USE OF UNITED PARCEL SERVICE FOR DELIVERY OF SMALL
SHIPMENTS FOR WHICH ITS SERVICES ARE BEING CONSIDERED. MR. MOODY
ESTIMATES ANNUAL SAVINGS OF OVER $19,000 ON RECORDS SHIPPED VIA UNITED
PARCEL SERVICE, BUT IN ORDER TO DETERMINE IF USE OF THIS CARRIER'S
FACILITIES REPRESENTS THE MOST PRACTICAL SOLUTION TO THE PROBLEM
CONSISTENT WITH ADEQUATE PROTECTION OF THE GOVERNMENT'S INTERESTS,
REQUESTS PERMISSION TO UTILIZE ITS SERVICES ON A TEST BASIS FOR A PERIOD
OF SIX MONTHS.
ALL OUTGOING SHIPMENTS FOR ONE DAY, FROM EACH ORIGIN TO ONE OR MORE
DESTINATIONS, ARE NORMALLY PICKED UP BY ONE DRIVER AT ONE TIME. THE
ORIGINAL SIGNED PICKUP SHEET IS TAKEN BY THE DRIVER, AND A COPY IS
RETAINED BY THE SHIPPER. UNDER THE PROPOSED ARRANGEMENTS, UNITED PARCEL
SERVICE WOULD TENDER FOR CERTIFICATION AND PAYMENT STANDARD FORM 1113,
SUPPORTED BY THE ORIGINAL PERTINENT COMMERCIAL BILLING FORMS, TO THE
RECORDS CENTER FROM WHICH SHIPMENT WAS MADE. NO BILL WOULD BE PRESENTED
FOR PAYMENT UNTIL 30 DAYS AFTER DATE OF PICKUP. AT EACH OF THE TWO
RECORDS CENTERS INVOLVED, THE UPS BILLS WILL BE VERIFIED TO THE CENTER'S
COPIES OF THE PICKUP RECORD BEFORE THE BILLS ARE CERTIFIED FOR PAYMENT.
IN VIEW OF THE REPETITIVE NATURE OF THE SHIPMENTS, THE EXPECTED
SUBSTANTIAL SAVINGS IN SHIPPING COSTS AND THE LIMITED INTRINSIC VALUE OF
THE RECORDS (RELEASED VALUATION NOT EXCEEDING 3 1/2 CENTS PER POUND),
AND IN CONSIDERATION OF THE ADMINISTRATIVE PROBLEMS INCURRED BY ISSUANCE
OF GOVERNMENT BILLS OF LADING FOR THIS TRAFFIC, THE ARRANGEMENTS
PROPOSED BY THE GENERAL SERVICES ADMINISTRATION ARE APPROVED FOR A TEST
PERIOD OF SIX MONTHS, SUBJECT TO THE FOLLOWING CONDITIONS:
1. THAT A LETTER OF AGREEMENT BE EXECUTED AND FILED BY UNITED PARCEL
SERVICE SIGNIFYING ACCEPTANCE OF THESE ARRANGEMENTS, AND THAT COPIES
THEREOF BE TRANSMITTED TO THE TRANSPORTATION DIVISION OF THE U.S.
GENERAL ACCOUNTING OFFICE AS A MATTER OF INFORMATION AND FOR APPROPRIATE
FILING. THE LETTER SHOULD CONTAIN THE FOLLOWING PROVISION:
"THE SHIPMENTS COVERED BY THIS AGREEMENT CONSIST OF PROPERTY OF THE
UNITED STATES AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, ARE
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THE STANDARD FORM OF
THE UNITED STATES GOVERNMENT BILL OF LADING AND ANY OTHER APPLICABLE
CONTRACT OR AGREEMENT OF THE CARRIER FOR THE TRANSPORTATION OF SHIPMENTS
FOR THE UNITED STATES ON GOVERNMENT BILLS OF LADING.'
2. THAT THE CARRIER'S BILLS FOR CHARGES BE SUBMITTED ON STANDARD
FORM 1034, PUBLIC VOUCHER FOR PURCHASES AND SERVICES OTHER THAN
PERSONAL, RATHER THAN STANDARD FORM 1113 AS PROPOSED, SUPPORTED BY THE
ORIGINAL COMMERCIAL BILLING FORMS.
THE NATIONAL ARCHIVES AND RECORDS SERVICE OR REGION 3 OF THE GENERAL
SERVICES ADMINISTRATION WILL BE RESPONSIBLE FOR VERIFICATION THAT THE
SERVICES FOR WHICH THE CARRIER CLAIMS REIMBURSEMENT WERE FURNISHED.
PAYMENTS OF THIS TYPE ARE NOT TO BE SCHEDULED ON REGULAR
VOUCHER-SCHEDULES COVERING TRANSPORTATION VOUCHERS, AND THE PAYMENT
RECORDS SHOULD NOT BE SENT TO OUR TRANSPORTATION DIVISION. IN VIEW OF
THE FOREGOING, RECORDS RETENTION SCHEDULES GOVERNING TRANSPORTATION
VOUCHERS AND SUPPORTING DOCUMENTS WILL NOT BE APPLICABLE TO THIS TYPE OF
PAYMENT.
B-158475, JUL. 20, 1966
TO MR. GEORGE T. BULLARD:
THIS IS IN REPLY TO YOUR LETTER OF MAY 24, 1966, WHEREIN YOU REQUEST
RECONSIDERATION OF THAT PORTION OF YOUR CLAIM FOR PAY FOR ONE-HALF HOUR
OVERTIME EACH DAY AS CHIEF GUARD SUPERVISOR AT CAMP PICKETT, VIRGINIA,
COVERING CERTAIN PERIODS BETWEEN MAY 20, 1955, AND JUNE 30, 1959, WHICH
WAS DISALLOWED BY OUR OFFICE SETTLEMENT OF APRIL 22, 1966, ON THE BASIS
OF LACK OF EVIDENCE IN SUPPORT THEREOF. OVERTIME COMPENSATION COVERING
THE PERIOD FROM MARCH 1, 1956, TO DECEMBER 13, 1956, WAS ALLOWED.
YOU NOW SUBMIT LETTERS FROM TWO FORMER COMMANDING OFFICERS, COLONEL
ROLLINS, COMMANDING OFFICER FROM AUGUST 26, 1954, TO FEBRUARY 29, 1956,
AND COLONEL HEARN, COMMANDING OFFICER FROM DECEMBER 14, 1956, TO JANUARY
10, 1958, IN SUPPORT OF YOUR CONTENTION THAT YOU WERE REQUIRED TO REPORT
15 MINUTES IN ADVANCE OF THE SHIFT EACH MORNING AND TO REMAIN 15 MINUTES
AFTER THE CONCLUSION OF THE 8 A.M. TO 4 P.M. SHIFT EACH EVENING. YOU
SAY THAT COLONEL HUBER WHO WAS COMMANDING OFFICER FOR THE REMAINING
PERIOD OF YOUR CLAIM FROM JANUARY 11, 1958, TO JUNE 30, 1959, IS NOW
DECEASED. YOU ALSO ENCLOSED A "SOP" (STANDARD OPERATING PROCEDURE) FOR
SECURITY GUARDS AT CAMP PICKETT (PERIOD COVERED THEREBY NOT SHOWN) TO
SUPPORT THE LETTERS OF YOUR TWO COMMANDING OFFICERS THAT YOU WERE
REQUIRED TO WORK THE ONE-HALF HOUR OVERTIME DAILY DURING THEIR TENURES
AND ALSO DURING THAT OF THE LATE COLONEL HUBER.
INITIALLY IT IS NOTED THAT NEITHER COLONEL ROLLINS NOR COLONEL HEARN
INDICATES IN HIS LETTER THAT YOU WERE DIRECTED TO WORK OVERTIME OR THAT
THE SERVICE WAS CONSIDERED AS OVERTIME AND SUBSEQUENTLY APPROVED. IN
FACT COLONEL HEARN IN HIS LETTER OF APRIL 24, 1966, STATES THAT YOUR
DUTY HOURS WERE 0800 TO 1600 MONDAY THROUGH FRIDAY AND THAT YOU REPORTED
AT 0745 AND DEPARTED AT 1615 SO AS TO INSURE A HIGH STANDARD OF
APPEARANCE AND PERFORMANCE OF DUTY BY THE GUARD FORCE.
PARAGRAPH VIII, ENTITLED "DUTY HOURS," OF STANDARD OPERATING
PROCEDURE (SOP), UNDATED, FOR THE SECURITY SECTION AT CAMP PICKETT,
PROVIDES IN SUBPARAGRAPH F AS FOLLOWS:
"F. SIGN IN AND SIGN OUT: 1. WHERE IT IS NECESSARY FOR CIVILIAN
GUARDS TO REPORT AT A CENTRAL LOCATION TO CHECK IN, RECEIVE
INSTRUCTIONS, UNDERGO INSPECTION, AND THEN PROCEED TO HIS RESPECTIVE
POST OF DUTY, THE DAILY TOUR OF DUTY IS CONSIDERED TO BEGIN AT THE TIME
HE IS REQUIRED TO CHECK IN. SIMILARLY, WHERE PERSONNEL ARE REQUIRED TO
CHECK OUT AT A CERTAIN LOCATION (SECURITY HEADQUARTERS) THE DAILY TOUR
WILL END AT THAT TIME. GENERALLY, SUCH DUTIES WILL NOT REQUIRE MORE
THAN 1/2 HOUR EACH DAY. (REFERENCE SECTION II, 2-8, CPR H2.2).'
UNDER THIS PROVISION A GUARD REQUIRED TO CHECK IN EARLY OR TO CHECK
OUT LATE WAS IN A DUTY STATUS FROM THE TIME OF CHECKING IN TILL CHECK
OUT. HOWEVER, IT DID NOT REQUIRE ALL GUARDS TO REPORT EARLY AND CHECK
OUT LATE BUT IN THE EVENT IT WAS NECESSARY THAT THEY DO SO THE TIME WAS
REGARDED AS PART OF THE TOUR OF DUTY. NEITHER OF YOUR COMMANDING
OFFICERS, COLONEL ROLLINS OR COLONEL HEARN, INDICATE IN THEIR LETTERS
THAT THEY REQUIRED YOU TO PERFORM DUTY IN EXCESS OF YOUR NORMAL TOUR OF
DUTY OF EIGHT HOURS PER DAY.
AS WE SAID IN B-150338, MAY 23, 1966, CITING BILELLO ET AL. V.
UNITED STATES, CT.CL. NO. -63,"* * * WE MUST CONCLUDE THAT THE MERE
EXISTENCE OF THE PRACTICE IS NOT TANTAMOUNT TO EXPRESS OR IMPLIED
DIRECTION BY AN AUTHORIZED OFFICER TO WORK OVERTIME.'
ON THE BASIS OF THE FOREGOING IT CANNOT BE CONCLUDED THAT THE PAYMENT
OF ONE-HALF HOUR OVERTIME COMPENSATION FOR YOUR EARLY REPORTING IN AND
LATE REPORTING OUT UPON COMPLETION OF YOUR REGULAR SHIFT FOR THE PERIODS
IN QUESTION WAS DIRECTED EITHER EXPRESSLY OR IMPLIEDLY. ACCORDINGLY,
THE DISALLOWANCE OF THAT PORTION OF YOUR CLAIM PREVIOUSLY REFERRED TO
MUST BE SUSTAINED.
B-159062, JUL. 20, 1966
TO ALTON IRON WORKS, INC. :
REFERENCE IS MADE TO YOUR LETTERS DATED APRIL 27 AND 29, 1966,
PROTESTING AGAINST AWARD OF CONTRACT TO GUENTHER MANUFACTURING CO. INC.
UNDER INVITATION FOR BIDS NO. AMC/T/23-204-66-358, ISSUED BY
HEADQUARTERS, UNITED STATES ARMY AVIATION MATERIEL COMMAND, ST. LOUIS,
MISSOURI.
THE SUBJECT INVITATION, ISSUED JANUARY 13, 1966, AND SUBSEQUENTLY
AMENDED, SOLICITED BIDS FOR A DEFINITE QUANTITY OF 18,703 EACH, RELEASE,
CARGO, PARACHUTE, FSN 1670-799-8494. TWENTY-TWO SOURCES WERE SOLICITED,
AND BIDS WERE OPENED ON JANUARY 27, 1966, WITH NO OBJECTIONS HAVING BEEN
RAISED AT ANY TIME PRIOR TO BID OPENING. THE SEVEN BIDS RECEIVED ARE
SHOWN AS FOLLOWS:
CHART
"BID "A" WITH BID "B" WITH
PREPRODUCTION PREPRODUCTION
SAMPLE AND TESTS SAMPLE AND TESTS
FURNISHED WAIVED "IRVING AIR CHUTE CO.
$41.67 NET NONE
INTERNATIONAL CONTROLS CORP. $50.26 NET NONE
ALTON IRON WORKS, INC. $51.40 LESS 1/2 NONE
PERCENT - 20 DAYS
GUENTHER MFG.CO., INC. $56.80 LESS 1/2 $56.70 LESS 1/2
PERCENT - 20 DAYS PERCENT - 20 DAYS
HANDY TOOL MFG.CORP. $57.00 LESS 1/2 NONE
PERCENT - 20 DAYS
M. STEINTHAL AND CO., INC. $59.12 NET $59.12 NET
THE BENDIX CORP. $59.95 NET $58.85 NET"
AFTER PREAWARD SURVEY, THE FIRST LOW BIDDER, IRVING AIR CHUTE CO.,
WAS DISQUALIFIED AND THE SECOND LOW BIDDER, INTERNATIONAL CONTROLS
CORP., WAS FOUND NONRESPONSIVE IN ITS BID. YOUR FIRM, THE THIRD LOW
BIDDER, WAS DECLARED NONRESPONSIBLE BY THE CONTRACTING OFFICER AS A
RESULT OF INFORMATION CONTAINED IN THE PREAWARD SURVEY REPORT FURNISHED
BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT (DCASD), GARDEN
CITY, LONG ISLAND, NEW YORK, DATED MARCH 8, 1966, WHICH DISCLOSED THAT
THE PAST AND PRESENT PERFORMANCE OF ALTON HAD NOT BEEN SATISFACTORY. IN
THIS CONNECTION, IT WAS POINTED OUT THAT OF 55 ALTON CONTRACTS CURRENTLY
ADMINISTERED BY DCASD, DELIVERY ON 10 OF THE CONTRACTS WAS OVERDUE. IT
WAS REPORTED THAT OF 20 CONTRACTS COMPLETED SINCE OCTOBER 1964 TO DATE,
16 (OR 80 PERCENT) WERE DELIVERED LATE. THE PREAWARD SURVEY REPORT
OBSERVED THAT THE MAJORITY OF THE DELINQUENCIES WAS DUE TO POOR CONTROL
ON THE PART OF THE CONTRACTOR IN OBTAINING TIMELY RECEIPT OF MATERIALS
FROM ITS SUBCONTRACTORS. IN VIEW OF THE FOREGOING INFORMATION, THE
CONTRACTING OFFICER MADE HIS DETERMINATION THAT YOUR FIRM WAS
NONRESPONSIBLE WITHIN THE MEANING OF ARMED SERVICES PROCUREMENT
REGULATION (ASPR) 1-903.1 (III) FOR FAILURE TO APPLY THE NECESSARY
TENACITY AND PERSEVERANCE TO ASSURE DELIVERY WITHIN THE TERMS OF THE
CONTRACTS. ACCORDINGLY, AWARD WAS MADE TO GUENTHER, THE NEXT LOWEST
RESPONSIBLE BIDDER.
THE CONTROLLING REGULATION, ASPR 1-903.1 (III), UNDER WHICH THE
CONTRACTING OFFICER MADE HIS DETERMINATION PROVIDES THAT A PROSPECTIVE
CONTRACTOR MUST:
"/III) HAVE A SATISFACTORY RECORD OF PERFORMANCE (CONTRACTORS WHO ARE
SERIOUSLY DEFICIENT IN CURRENT CONTRACT PERFORMANCE, WHEN THE NUMBER OF
CONTRACTS AND THE EXTENT OF DEFICIENCY OF EACH ARE CONSIDERED, SHALL, IN
THE ABSENCE OF EVIDENCE TO THE CONTRARY OR CIRCUMSTANCES PROPERLY BEYOND
THE CONTROL OF THE CONTRACTOR, BE PRESUMED TO BE UNABLE TO MEET THIS
REQUIREMENT). PAST UNSATISFACTORY PERFORMANCE, DUE TO FAILURE TO APPLY
NECESSARY TENACITY OR PERSEVERANCE TO DO AN ACCEPTABLE JOB, SHALL BE
SUFFICIENT TO JUSTIFY A FINDING OF NONRESPONSIBILITY AND IN THE CASE OF
SMALL BUSINESS CONCERNS, SHALL NOT REQUIRE SUBMISSION OF THE CASE TO THE
SMALL BUSINESS ADMINISTRATION * * *"
IN OUR DECISIONS B-157203, DATED DECEMBER 29, 1965; B-157549, DATED
DECEMBER 21, 1965; AND B-156663, DATED OCTOBER 11, 1965, TO YOU,
INVOLVING ISSUES SIMILAR TO THOSE PRESENTED IN THIS CASE, THE
CONTRACTING OFFICERS INVOLVED FOUND YOUR ORGANIZATION NONRESPONSIBLE DUE
TO POOR PAST PERFORMANCE AND YOUR UNSATISFACTORY PERFORMANCE RECORD WAS
NOT FOUND DUE TO LACK OF CREDIT OR CAPACITY, JUST AS THE CONTRACTING
OFFICER CONCLUDED IN THE PRESENT CASE.
IN YOUR PROTEST YOU HAVE URGED THAT REVIEW SHOULD HAVE BEEN MADE OF
THE MATTER BY THE SMALL BUSINESS ADMINISTRATION (SBA). IN THIS
CONNECTION, IT SHOULD BE POINTED OUT THAT UNDER ASPR 1-705, A
CONTRACTING OFFICER WHO FINDS A SMALL BUSINESS BIDDER NONRESPONSIBLE FOR
REASONS RELATING SOLELY TO CAPACITY OR CREDIT IS REQUIRED TO REFER THE
MATTER TO SBA FOR DETERMINATION WHETHER A CERTIFICATE OF COMPETENCY
SHOULD BE ISSUED UNLESS THE AWARD MUST BE MADE WITHOUT DELAY. HOWEVER,
WHERE THE FINDING OF NONRESPONSIBILITY IS BASED ON A RECORD OF
UNSATISFACTORY PERFORMANCE, REFERRAL TO SBA IS REQUIRED ONLY IF THE
DELINQUENT PERFORMANCE WAS DUE SOLELY TO INADEQUATE CAPACITY OR CREDIT.
PURSUANT TO SUCH PROVISIONS, WHEN A CONTRACTING OFFICER DETERMINES THAT
A LOW SMALL BUSINESS BIDDER IS NONRESPONSIBLE FOR REASONS NOT INCLUDED
IN SBA CERTIFICATIONS, THAT IS, FACTORS CONCERNING WHETHER A BIDDER
WILL, RATHER THAN CAN, PERFORM, THE MATTER OF THE BIDDER'S
RESPONSIBILITY NEED NOT BE SUBMITTED TO SBA. 43 COMP. GEN. 298, 300.
FROM THE FACTS SET FORTH, IT IS EVIDENT THAT YOUR UNSATISFACTORY
PERFORMANCE ON PRIOR GOVERNMENT CONTRACTS WAS DUE TO REASONS OTHER THAN
THOSE SOLELY RELATED TO YOUR FINANCIAL STATUS AND PHYSICAL CAPABILITY TO
PERFORM, SUCH AS LACK OF PERSEVERANCE, TENACITY, AND PROPER PLANNING,
FACTORS WHICH WE HAVE HELD ARE FOR DETERMINATION BY THE CONTRACTING
AGENCY WITHOUT REFERENCE TO SBA. 43 COMP. GEN. 257 AND CASES CITED
THEREIN. FURTHER, THE DETERMINATION OF YOUR NONRESPONSIBILITY, BASED
UPON SUCH FACTORS, WAS PROPERLY DOCUMENTED AS REQUIRED BY ASPR 1-705.4.
FOR THE REASONS STATED, WE FIND NO LEGAL BASIS FOR OBJECTION TO THE
ACTION OF THE CONTRACTING OFFICER IN REJECTING YOUR BID AND MAKING AWARD
TO THE NEXT LOW RESPONSIVE, RESPONSIBLE BIDDER. THEREFORE, YOUR PROTEST
AGAINST SUCH ACTION IS DENIED.
B-159309, JUL. 20, 1966
TO CAPTAIN BERNICE M. PASCAVAGE, USAF, AN 3113390:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 17, 1966, IN EFFECT
REQUESTING REVIEW OF SETTLEMENT DATED MARCH 23, 1966, WHICH DISALLOWED
YOUR CLAIM FOR THE AMOUNT OF $303, REPRESENTING PER DIEM PAID TO YOU FOR
THE PERIOD JANUARY 11 TO MARCH 3, 1962, INCIDENT TO TEMPORARY DUTY
PERFORMED AT LOCKBOURNE AIR FORCE BASE, OHIO, AND SUBSEQUENTLY COLLECTED
FROM YOU.
BY SPECIAL ORDER NO. T-37, DATED JANUARY 9, 1962, HEADQUARTERS, 2ND
BOMBARDMENT WING (SAC), HUNTER AIR FORCE BASE, GEORGIA, YOU WERE
DIRECTED TO REPORT TO THE 801ST MEDICAL GROUP, LOCKBOURNE AIR FORCE
BASE, OHIO, NOT LATER THAN JANUARY 12, 1962, FOR TEMPORARY DUTY FOR
APPROXIMATELY 38 DAYS. THAT ORDER WAS AMENDED BY PARAGRAPH 5 OF SPECIAL
ORDER NO. 252, DATED FEBRUARY 21, 1962, SAME HEADQUARTERS, TO SHOW THE
PERIOD OF TEMPORARY DUTY AS APPROXIMATELY 53 DAYS. ON THE BASIS OF A
CLAIM SUBMITTED BY YOU AFTER THE COMPLETION OF TEMPORARY DUTY AT
LOCKBOURNE AIR FORCE BASE, SUPPORTED BY A CERTIFICATE OF NONAVAILABILITY
OF QUARTERS AND MESS, YOU WERE PAID THE SUM OF $454.50 ON MARCH 6, 1962,
REPRESENTING TRAVEL ALLOWANCE AND PER DIEM IN THE AMOUNT OF $726.40 LESS
A TRAVEL ADVANCE PAYMENT OF $271.90. SUBSEQUENTLY IT WAS
ADMINISTRATIVELY DETERMINED THAT YOU HAD UTILIZED GOVERNMENT QUARTERS
AND THAT THE SUM OF $303 REPRESENTING EXCESS PER DIEM FOR THE
PERIOD JANUARY 11 TO MARCH 2, 1962 (DIFFERENCE BETWEEN $12 AND $6 PE
DIEM FOR 50 1/2 DAYS), WAS IMPROPERLY PAID TO YOU. COLLECTION OF THAT
AMOUNT WAS ACCOMPLISHED ON MARCH 20, 1962.
BY LETTER DATED JULY 26, 1965, YOU PRESENTED A CLAIM FOR THE AMOUNT
OF $303 PREVIOUSLY RECOVERED FROM YOU. YOU STATED IN THAT LETTER THAT
WHILE AT LOCKBOURNE AIR FORCE BASE YOU VISITED WITH FRIENDS WHO LIVED IN
GOVERNMENT QUARTERS AND THAT YOU WERE REQUIRED TO REPAY THE AMOUNT OF
$303 BECAUSE OF A MISUNDERSTANDING THAT YOU STAYED AT A "BOQ OR VOQ
(WHICH WASN-T AVAILABLE AT THAT TIME).' THE CLAIM, WHICH WAS REFERRED TO
OUR CLAIMS DIVISION FOR APPROPRIATE ACTION, WAS DISALLOWED BY SETTLEMENT
DATED MARCH 23, 1966, ON THE GROUND THAT THE RECORD INDICATES THAT YOU
HAD UTILIZED GOVERNMENT QUARTERS ASSIGNED TO PERSONAL FRIENDS DURING THE
PERIOD OF YOUR TEMPORARY DUTY AND, THEREFORE, THE REDUCTION IN YOUR PER
DIEM WAS PROPER SINCE SUCH LODGINGS ARE REGARDED AS FURNISHED BY THE
GOVERNMENT (7 COMP. GEN. 85 AND 36 COMP. GEN. 459).
YOU SAY IN YOUR LETTER OF MAY 17, 1966, THAT DURING YOUR TEMPORARY
DUTY AT LOCKBOURNE AIR FORCE BASE YOU RESIDED OFF BASE, BUT ON SEVERAL
OCCASIONS VISITED PERSONAL FRIENDS ON BASE. YOU ALSO ASSERT THAT YOU
DID NOT OCCUPY THE QUARTERS ASSIGNED TO YOUR FRIENDS AND, IN THIS
CONNECTION, YOU REQUEST A COPY OF "THE RECORD" WHICH IS TO THE CONTRARY.
OUR FILE CONTAINS A COPY OF DD FORM 1131 "CASH COLLECTION VOUCHER,"
COPY OF WHICH IS ENCLOSED IN ACCORDANCE WITH YOUR REQUEST, WHICH SHOWS
THAT THE AMOUNT OF $303 EXCESS PER DIEM WAS COLLECTED FROM YOU BECAUSE
"GOVERNMENT QUARTERS WERE UTILIZED.' THAT DOCUMENT DOES NOT SHOW THE
CLASS OR TYPE OF QUARTERS UTILIZED BY YOU DURING THE PERIOD OF YOUR
TEMPORARY DUTY AT LOCKBOURNE AIR FORCE BASE. IT APPEARS, HOWEVER, THAT
UPON A DETERMINATION THAT YOU HAD UTILIZED GOVERNMENT QUARTERS, THE ARMY
IN APPLYING THE APPLICABLE REGULATION, PARAGRAPH M4205-5C (2), JOINT
TRAVEL REGULATIONS (CHANGE 107, DATED AUGUST 1, 1961), WHICH PROVIDES
FOR A PER DIEM ALLOWANCE OF $6 WHEN GOVERNMENT QUARTERS ARE AVAILABLE OR
UTILIZED BY THE MEMBER, RECOVERED THE DIFFERENCE BETWEEN THE RATES OF
$12 PAID TO YOU AND $6 TO WHICH YOU WERE ENTITLED ON THE BASIS THAT YOU
OCCUPIED GOVERNMENT QUARTERS DURING THE PERIOD INVOLVED.
YOUR STATEMENT THAT YOU DID NOT OCCUPY THE QUARTERS ASSIGNED TO YOUR
FRIENDS IS AT VARIANCE WITH THE INFORMATION CONTAINED ON THE DD FORM
1131, MENTIONED ABOVE, WHICH YOU INDICATE WAS BASED ON YOUR STATEMENTS.
WHERE THERE IS A CONFLICT BETWEEN THE FACTS AS ADMINISTRATIVELY REPORTED
AND THOSE STATED BY A CLAIMANT, IT HAS LONG BEEN THE ESTABLISHED RULE OF
THIS OFFICE TO ACCEPT THE FACTS ADMINISTRATIVELY REPORTED AS CONTROLLING
IN THE DISPOSITION OF CLAIMS, IN THE ABSENCE OF EVIDENCE ESTABLISHING
THAT THE OFFICIAL RECORDS ARE IN ERROR. SEE 16 COMP. GEN. 325; 19 ID.
88; 37 ID. 568 AND 38 ID. 527. THE PRESENT RECORD DOES NOT AFFORD A
SUFFICIENT BASIS TO CONCLUDE, CONTRARY TO THE ADMINISTRATIVE
DETERMINATION, THAT YOU DID NOT OCCUPY GOVERNMENT QUARTERS DURING ANY
PORTION OF THE PERIOD AND THE SETTLEMENT OF MARCH 23, 1966, IS
SUSTAINED.
WE WILL GIVE FURTHER CONSIDERATION TO YOUR CLAIM, HOWEVER, IF YOU
FURNISH AN EXPLANATION AS TO THE QUARTERS WHICH YOU OCCUPIED DURING THE
PERIOD OF YOUR TEMPORARY DUTY, SUPPORTED BY ANY DOCUMENTARY EVIDENCE
AVAILABLE SUCH AS MOTEL OR HOTEL RECEIPTS. THE STATEMENT SHOULD INCLUDE
INFORMATION AS TO WHETHER YOU STAYED OVERNIGHT WITH FRIENDS RESIDING IN
GOVERNMENT QUARTERS DURING SUCH PERIOD, GIVING THE DATES OR NUMBER OF
NIGHTS IF SUCH LODGING WAS UTILIZED.
B-159316, JUL. 20, 1966
TO ROSS, STARK, MATZKIN AND DAY:
WE HAVE RECEIVED AN ADMINISTRATIVE REPORT FROM THE NATIONAL
AERONAUTICS AND SPACE ADMINISTRATION, DATED JUNE 30, 1966, RESPONDING TO
CERTAIN MATTERS WHICH YOU RAISED CONCERNING CONTRACT NO. NAS3-3210-PB
BETWEEN THAT AGENCY AND VITRO CORPORATION OF AMERICA. A COPY OF THE
COVER LETTER TO THAT REPORT IS ENCLOSED HEREWITH.
FROM THE FACTS RECITED IN THE SUBJECT REPORT, THE MATTER WOULD APPEAR
TO INVOLVE A PRIVATE CONTROVERSY BETWEEN VITRO AND YOUR CLIENT, AJAX
MAGNETHERMIC CORPORATION, A SUBCONTRACTOR OF VITRO, OVER THE CAUSE FOR
THE FAILURE OF THE ITEM BEING PROCURED TO MEET SPECIFICATIONS. IN VIEW
THEREOF, AND SINCE THERE IS NO PRIVITY OF CONTRACT BETWEEN YOUR CLIENT
AND THE GOVERNMENT, WE FIND NO PRESENT GROUNDS FOR OBJECTING TO PAYMENT
BY THE GOVERNMENT TO VITRO IN ACCORDANCE WITH ITS CONTRACT, AS AMENDED
TO REDUCE THE CONTRACT PRICE BECAUSE OF VITRO'S INABILITY TO DELIVER A
PRODUCT CONFORMING TO SPECIFICATIONS.
B-159382, JUL. 20, 1966
TO BUREAU OF NAVAL WEAPONS FLEET READINESS REPRESENTATIVE, ATLANTIC
U.S. NAVAL AIR STATION:
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 19, 1966, WITH
ENCLOSURES, IN EFFECT REQUESTING REVIEW OF SETTLEMENT DATED APRIL 1,
1966, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL MILEAGE FOR TRAVEL
PERFORMED FROM NORFOLK, VIRGINIA, TO WEEKSVILLE, NORTH CAROLINA, AND
RETURN ON AUGUST 11, 1965, INCIDENT TO ORDERS DATED AUGUST 10, 1965.
THE RECORD SHOWS THAT BY ORDERS DATED AUGUST 10, 1965, BUREAU OF
NAVAL WEAPONS FLEET REPRESENTATIVE, ATLANTIC, YOU WERE DIRECTED TO
PROCEED FROM NORFOLK, VIRGINIA, TO WEEKSVILLE, NORTH CAROLINA, ON OR
ABOUT AUGUST 11, 1965, FOR TEMPORARY ADDITIONAL DUTY CONCERNING CLOSING
OUT OF P5 CONTRACT. THE ORDERS AUTHORIZED TRAVEL VIA PRIVATELY OWNED
VEHICLE WITH REIMBURSEMENT AT THE RATE OF 7 CENTS PER MILE, SUCH MODE
BEING CONSIDERED AS MORE ADVANTAGEOUS TO THE GOVERNMENT. YOU PERFORMED
THE ROUND TRIP TRAVEL BETWEEN NORFOLK AND WEEKSVILLE ON AUGUST 11, 1965,
AND THE NAVY REGIONAL FINANCE CENTER, NORFOLK, PAID YOU THE SUM OF $7.42
AS MILEAGE FOR THE DISTANCE OF 106 MILES AT 7 CENTS PER MILE.
YOUR CLAIM FOR ADDITIONAL MILEAGE BASED ON A DISTANCE OF 140 MILES
WHICH IS THE DISTANCE SHOWN ON YOUR SPEEDOMETER FOR YOUR TRAVEL FROM
NORFOLK TO WEEKSVILLE AND RETURN WAS DISALLOWED BY SETTLEMENT DATED
APRIL 1, 1966, FOR THE REASON THAT YOU WERE PAID MILEAGE FOR THE
OFFICIAL DISTANCE TRAVELED AND THE APPLICABLE LAW AND REGULATIONS
REQUIRE THAT THE DISTANCE FOR TRAVEL PERFORMED BETWEEN PERMANENT AND
TEMPORARY DUTY STATIONS BE COMPUTED IN ACCORDANCE WITH THE OFFICIAL
TABLE OF DISTANCES.
IN YOUR PRESENT LETTER YOU SAY THAT THE TRAVEL YOU PERFORMED
ORIGINATED AT NAVAL AIR STATION, NORFOLK, VIRGINIA, PROCEEDED TO HAYES
INTERNATIONAL CORPORATION AT WEEKSVILLE, NORTH CAROLINA, AND TERMINATED
THE SAME DAY AT NAVAL AIR STATION, NORFOLK, AND THAT THE OFFICIAL TABLE
OF DISTANCES SHOULD NOT GOVERN PAYMENT FOR TEMPORARY DUTY TRAVEL OF SUCH
NATURE. YOU SAY THAT IT IS AN IMPOSSIBILITY TO PERFORM THE TRAVEL
LISTED ABOVE, VIA ROADS, AND TRAVEL ONLY 106 MILES AND SINCE THE TRAVEL
WAS PERFORMED BY PRIVATELY OWNED VEHICLE FOR THE CONVENIENCE OF THE
GOVERNMENT YOU SHOULD BE ALLOWED MILEAGE BASED ON YOUR SPEEDOMETER
READING. FURTHER, YOU SAY THAT THE REASONABILITY OF YOUR INTERPRETATION
OF THE JOINT TRAVEL REGULATIONS IS SUPPORTED BY THE FACT THAT CIVIL
SERVICE PERSONNEL ARE PAID ON THE BASIS OF SPEEDOMETER READINGS FOR SUCH
TRAVEL.
THE PERTINENT STATUTE, 37 U.S.C. 404, APPLIES TO BOTH PERMANENT
CHANGE OF STATION AND TEMPORARY DUTY TRAVEL AND PROVIDES THAT, UNDER
REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE
UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND
TRANSPORTATION ALLOWANCES FOR TRAVEL AS THEREIN AUTHORIZED. INSOFAR AS
HERE PERTINENT THE STATUTE PROVIDES THAT THE TRAVEL AND TRANSPORTATION
ALLOWANCES WHICH SHALL BE AUTHORIZED SHALL BE A MONETARY ALLOWANCE IN
LIEU OF COST OF TRANSPORTATION AT A RATE NOT IN EXCESS OF 7 CENTS PER
MILE BASED ON DISTANCES ESTABLISHED ON THE SHORTEST USUALLY TRAVELED
ROUTES, UNDER MILEAGE TABLES PREPARED BY THE CHIEF OF FINANCE OF THE
DEPARTMENT OF THE ARMY UNDER THE DIRECTION OF THE SECRETARY OF THE ARMY.
PARAGRAPH M4203-3B (2) OF THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT
TO THE ABOVE SECTION 404, PROVIDES THAT FOR TRAVEL ACTUALLY PERFORMED BY
PRIVATELY OWNED CONVEYANCE UNDER ORDERS AUTHORIZING SUCH MODE OF
TRANSPORTATION AS MORE ADVANTAGEOUS TO THE GOVERNMENT, THE MEMBER WILL
BE PAID A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION AT THE RATE OF
$0.07 PER MILE FOR THE OFFICIAL DISTANCE. PARAGRAPH M4155-1 OF THE
REGULATIONS PROVIDES THAT OFFICIAL DISTANCES ARE ESTABLISHED UNDER
DIRECTION OF THE SECRETARY OF THE ARMY. SUBPARAGRAPH 2 (B) OF PARAGRAPH
M4155 PROVIDES THAT THE OFFICIAL HIGHWAY DISTANCE SHALL BE THE "OFFICIAL
DISTANCE" FOR TRAVEL WHEN PERFORMED BY PRIVATELY OWNED CONVEYANCE.
THUS THE LAW AND REGULATIONS AUTHORIZE PAYMENT TO MILITARY TRAVELERS
OF MILEAGE AT THE RATE OF 7 CENTS PER MILE ONLY FOR THE OFFICIAL
DISTANCE BETWEEN THE POINTS OF TRAVEL AS DETERMINED BY THE CHIEF OF
FINANCE OF THE DEPARTMENT OF THE ARMY. PRIOR TO TAKING SETTLEMENT
ACTION ON YOUR CLAIM OUR CLAIMS DIVISION OBTAINED FROM THE CHIEF OF
FINANCE AN OFFICIAL DETERMINATION OF THE DISTANCE FROM THE NAVAL AIR
STATION, NORFOLK, TO WEEKSVILLE AND RETURN. THIS DISTANCE WAS
DETERMINED TO BE 104 MILES COMPUTED ON THE BASIS OF ZERO MILES FROM THE
NAVAL AIR STATION TO NORFOLK, 44 MILES FROM NORFOLK TO ELIZABETH CITY
AND EIGHT MILES FROM ELIZABETH CITY TO WEEKSVILLE, OR A TOTAL OF 52
MILES EACH WAY. YOU WERE PAID FOR 106 MILES OF TRAVEL, OR TWO MILES
MORE THAN THAT OFFICIALLY DETERMINED DISTANCE. APPARENTLY YOUR
SPEEDOMETER READING INCLUDES MILEAGE FOR TRAVEL WITHIN THE CITY OF
NORFOLK NOT COVERED BY THE DETERMINATION OF THE CHIEF OF FINANCE.
HOWEVER, UNDER THE LAW AND REGULATIONS YOU ARE ENTITLED TO PAYMENT ONLY
FOR THE OFFICIAL DISTANCE AS DETERMINED BY THE CHIEF OF FINANCE.
THEREFORE THE SETTLEMENT OF APRIL 1, 1966, IS CORRECT AND IS SUSTAINED.
CONCERNING YOUR STATEMENT THAT CIVIL SERVICE PERSONNEL ARE PAID ON
THE BASIS OF SPEEDOMETER READINGS, REIMBURSEMENT FOR TRAVEL BY CIVILIAN
PERSONNEL IS GOVERNED BY THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS,
WHICH, UNLIKE THE LAW AND REGULATIONS APPLICABLE TO MILITARY TRAVELERS,
PROVIDE THAT PAYMENT FOR TRAVEL BY PRIVATELY OWNED AUTOMOBILES SHALL BE
BASED ON ,DISTANCES BETWEEN POINTS TRAVELED * * * AS SHOWN IN STANDARD
HIGHWAY GUIDES OR BY SPEEDOMETER READINGS.'
CHECK NO. 4037106, DATED SEPTEMBER 1, 1965, FOR $7.42 IS RETURNED
TOGETHER WITH YOUR ORIGINAL ORDERS OF AUGUST 10, 1965.
B-159453, JUL. 20, 1966
TO AERVALCO COMPANY:
YOU HAVE PROTESTED THAT THE BUREAU OF SUPPLIES AND ACCOUNTS,
PREDECESSOR OF THE NAVAL SUPPLY SYSTEMS COMMAND, SHOULD HAVE PERMITTED
YOUR COMPANY TO CORRECT THE ERRONEOUS BID SUBMITTED IN RESPONSE TO
INVITATION FOR BIDS IFB-156-283-66 INSTEAD OF MERELY DISREGARDING IT.
THE SUBJECT INVITATION SOLICITED BIDS FOR FURNISHING 606 GLOBE VALVES
FOR DELIVERY TO SEVEN DIFFERENT DESTINATIONS. FOUR BIDS WERE RECEIVED
AS FOLLOWS:
CHART
BIDDER UNIT PRICE
------ -----------
AERVALCO ENGINEERING CORP. $ 38.00
HYDROMATICS, INC. 47.50
REPUBLIC MANUFACTURING CO. 49.63
ALTON IRON WORKS, INC. 200.00
THE CONTRACTING OFFICER, SUSPECTING A MISTAKE BECAUSE OF THE
DISPARITY IN BID PRICES, REQUESTED VERIFICATION OF THE LOW BID. YOU
ADVISED BY TELEGRAM THAT YOUR PRICE SHOULD HAVE BEEN $43.40 WHEREUPON
THE CONTRACTING OFFICER REQUESTED BY LETTER THAT YOU FURNISH COPIES OF
THE ORIGINAL WORKSHEETS USED IN BID PREPARATION ALONG WITH AN
EXPLANATION OF THE ERROR AND HOW IT OCCURRED. YOU SUBSEQUENTLY
FURNISHED NOTARIZED STATEMENTS FROM THE PRESIDENT OF THE COMPANY STATING
THAT THE ERROR OCCURRED WHEN THROUGH OVERSIGHT THE COST OF $4.30 FOR A
POPPET ASSEMBLY WAS OMITTED IN THE PREPARATION OF THE BID. ACCOMPANYING
THE NOTARIZED STATEMENTS, THERE WERE A COPY OF THE ORIGINAL WORKSHEET
AND A COPY OF THE WORKSHEET AS CORRECTED TO INCLUDE THE POPPET ASSEMBLY.
WITH RESPECT TO THE WORKSHEETS FURNISHED, PARAGRAPH 3 OF THE FINDINGS
OF THE ACTING ASSISTANT CHIEF FOR PURCHASING OF THE BUREAU OF SUPPLIES
AND ACCOUNTS STATED:
"EXAMINATION OF THE BIDDER'S ORIGINAL WORK SHEET SHOWS THAT SEVENTEEN
COMPONENTS PARTS' COSTS WERE ADDED FOR A TOTAL OF $25.45, TO WHICH
$12.55 FOR G AND A AND PROFIT COMBINED (49.312 PERCENT) WAS ADDED FOR A
TOTAL UNIT PRICE OF $38.00. THE CORRECTED WORK SHEET SHOWS THE SAME
COMPONENT PARTS' COSTS, PLUS THE $4.30 COST OF A POPPET ASSEMBLY ALLEGED
TO HAVE BEEN ORIGINALLY OMITTED, FOR A TOTAL PARTS COST OF $29.75, TO
WHICH $13.65 FOR G AND A AND PROFIT COMBINED (45.882 PERCENT)
HAS BEEN ADDED FOR A TOTAL UNIT PRICE OF $43.40.'
FROM ALL THE CIRCUMSTANCES, THE ACTING ASSISTANT CHIEF DETERMINED
THAT THE BID OF YOUR COMPANY SHOULD BE DISREGARDED AS AN ERRONEOUS BID
AND NOT CORRECTED. AWARD WAS THEREFORE MADE TO THE NEXT LOW BIDDER.
UPON BEING ADVISED OF THE ACTION TAKEN, YOU PROTESTED THE AWARD.
FROM THE INFORMATION FURNISHED AS EVIDENCE OF YOUR MISTAKE IN BID AND
YOUR INTENDED BID, THE ADMINISTRATIVE OFFICE CONCLUDED THAT A MISTAKE
HAD BEEN MADE AND APPARENTLY VIEWED YOUR CORRECTED WORKSHEET AS A
RECALCULATION OF THE ORIGINAL BID SINCE THERE WAS NOTHING IN THE
ORIGINAL WORKSHEET WHICH SHOWED WHAT WAS ACTUALLY INTENDED TO BE BID FOR
THE OMITTED ITEM. IT IS APPARENTLY YOUR POSITION THAT THE ORIGINAL
WORKSHEET SUBMITTED WAS A MASTER SHEET AND THAT YOU HAD COMPUTED THE
COST OF THE POPPET ASSEMBLY AT THE TIME YOU BID BUT HAD FAILED TO
INCORPORATE IT INTO THE MASTER SHEET AND YOU COULD HAVE PRODUCED THE
WORKSHEET FOR THE POPPET ASSEMBLY IF YOU WOULD HAVE BEEN REQUESTED TO
FURNISH THE BACKUP SHEETS FOR THE MASTER SHEET. HOWEVER, THE
ADMINISTRATIVE OFFICE WOULD HAVE NO WAY OF KNOWING THE MECHANICS BY
WHICH A PARTICULAR BIDDER COMPUTES ITS BID. THE LETTER REQUESTING
EVIDENCE OF THE MISTAKE AND THE INTENDED BID PRICE SPECIFICALLY
REQUESTED THAT A COPY OF THE "ORIGINAL WORK SHEETS" USED IN BID
PREPARATION BE FURNISHED. IT WAS THEREFORE INCUMBENT UPON YOUR COMPANY
TO PRODUCE COPIES OF ALL OF THE ORIGINAL WORKSHEETS WHICH WERE NECESSARY
TO ESTABLISH WHAT YOUR INTENDED PRICE WAS AT THE TIME YOU BID. WE
BELIEVE THAT IN THE CIRCUMSTANCES THE FAILURE TO FURNISH THE
WORKSHEET YOU HAD FOR THE POPPET ASSEMBLY WOULD HAVE TO BE ATTRIBUTED TO
YOUR COMPANY RATHER THAN TO THE CONTRACTING AGENCY.
IN ANY EVENT, THE AUTHORITY TO CORRECT MISTAKES ALLEGED AFTER OPENING
BUT PRIOR TO AWARD IS VESTED IN THE CONTRACTING AGENCY BY REGULATION AND
THE WEIGHT TO BE GIVEN EVIDENCE IN SUPPORT OF ANY ALLEGED MISTAKE
NECESSARILY DEPENDS UPON HOW CONVINCING IT IS TO THE EVALUATOR OF THE
EVIDENCE. FROM THE INFORMATION WHICH THE CONTRACTING AGENCY WAS
FURNISHED BY YOUR COMPANY IN SUPPORT OF MISTAKE AND CORRECTION, WE
CANNOT CONCLUDE THAT THERE WAS NOT A BASIS FOR THE DETERMINATION
REACHED.
ACCORDINGLY, WE WOULD NOT BE JUSTIFIED IN OBJECTING TO THE
ADMINISTRATIVE ACTION TAKEN IN THIS CASE.
B-159507, JUL. 20, 1966
TO MR. MAURICE W. KELLY:
THIS REFERS TO YOUR LETTER OF MAY 24, 1966, CONCERNING OUR SETTLEMENT
OF MAY 9, 1966, WHICH DISALLOWED YOUR CLAIM FOR COST OF LIVING ALLOWANCE
FOR THE PERIOD AUGUST 1-14, 1965, INCIDENT TO YOUR SERVICE WITH THE
BUREAU OF SPORT FISHERIES AND WILDLIFE, DEPARTMENT OF THE INTERIOR.
IT APPEARS THAT ON APRIL 1, 1961, WHILE SERVING WITH THE ABOVE-NAMED
AGENCY AT JUNEAU, ALASKA, YOU WERE CALLED TO ACTIVE MILITARY DUTY AND
ASSIGNED TO THE ALASKA STATE HEADQUARTERS, SELECTIVE SERVICE SYSTEM,
ALSO IN JUNEAU. YOU WERE PLACED IN A MILITARY FURLOUGH STATUS BY THE
FISH AND WILDLIFE SERVICE FOR THAT PURPOSE.
ON OR BEFORE JULY 23, 1965, YOU INFORMED THE FISH AND WILDLIFE
SERVICE AREA OFFICE, PORTLAND, OREGON, BY TELEGRAM THAT YOU WERE TO BE
SEPARATED FROM THE MILITARY SERVICE EFFECTIVE JULY 31, 1965, AND WOULD
BE AVAILABLE FOR EMPLOYMENT ON AUGUST 1. IN REPLY YOU WERE ADVISED THAT
YOU WOULD BE RETURNED FROM MILITARY FURLOUGH TO THE POSITION OF REFUGE
MANAGER, SHELDON-HART MOUNTAIN NATIONAL WILDLIFE REFUGE, EFFECTIVE
AUGUST 1, 1965, BUT WOULD BE DETAILED TO THE AGENCY'S JUNEAU OFFICE FOR
TWO WEEKS BEFORE PROCEEDING TO THE NEW HEADQUARTERS AT LAKEVIEW, OREGON.
YOU WERE FURNISHED AUTHORIZATION FOR THE TRAVEL OF YOURSELF AND YOUR
FAMILY AND FOR THE TRANSPORTATION OF YOUR HOUSEHOLD GOODS FROM JUNEAU TO
LAKEVIEW WITH INSTRUCTIONS TO COMMENCE TRAVEL THERETO ON OR ABOUT AUGUST
15 IF YOU ACCEPTED THE ASSIGNMENT.
YOU REPORTED TO THE JUNEAU OFFICE OF THE BUREAU OF SPORT FISHERIES
AND WILDLIFE, SERVED THE DETAIL OF TWO WEEKS AND RESIGNED TO ACCEPT A
POSITION WITH THE SELECTIVE SERVICE SYSTEM EFFECTIVE AUGUST 15. THE
REASON GIVEN WAS THAT YOU DID NOT WISH TO LEAVE ALASKA.
YOUR CLAIM WAS DISALLOWED BECAUSE THE POSITION TO WHICH YOU WERE
ASSIGNED UPON TERMINATION OF YOUR MILITARY SERVICE WAS LOCATED IN THE
CONTINENTAL UNITED STATES AND COST OF LIVING ALLOWANCE IS NOT AUTHORIZED
FOR EMPLOYEES SO SITUATED.
IN YOUR PRESENT LETTER YOU SAY THAT IF THE COST OF LIVING ALLOWANCE
IS NOT PAYABLE BECAUSE YOUR OFFICIAL STATION WAS IN OREGON YOU SHOULD BE
CONSIDERED AS HAVING BEEN IN A TRAVEL STATUS AND ALLOWED PER DIEM FOR
THE PERIOD IN QUESTION SINCE AN EMPLOYEE "WHILE IN TRAVEL STATUS AWAY
FROM THE OFFICIAL STATION IS ENTITLED TO CERTAIN REIMBURSEMENTS IN
ACCORDANCE WITH THE STANDARD TRAVEL REGULATIONS.'
THE PER DIEM ALLOWANCE TO OFFICERS AND EMPLOYEES OF THE GOVERNMENT
AUTHORIZED BY THE TRAVEL EXPENSE ACT OF 1949, AS AMENDED, 5 U.S.C. 836,
IS NOT TO BE CONSIDERED AS ADDITIONAL SALARY OR COMPENSATION ATTACHED TO
THE POSITION HELD BY SUCH OFFICERS AND EMPLOYEES BUT IS EXPRESSLY STATED
IN THE AUTHORIZING STATUTE TO BE IN LIEU OF ACTUAL EXPENSES FOR
SUBSISTENCE. IT IS INTENDED TO REIMBURSE A TRAVELER FOR HAVING TO EAT
IN PUBLIC PLACES AND FOR HAVING TO RENT A ROOM IN ANOTHER CITY, ETC.,
WHILE STILL MAINTAINING HIS OWN TABLE AND HIS OWN PERMANENT PLACE OF
ABODE. SEE BORNHOFT V. UNITED STATES, 137 CT.CL. 134. IT IS THE
RESPONSIBILITY OF EACH DEPARTMENT AND AGENCY TO AUTHORIZE ONLY SUCH PER
DIEM ALLOWANCES AS ARE JUSTIFIED BY THE CIRCUMSTANCES. SEE SECTION 6.2
OF STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. THUS, THE DETERMINATIONS
AS TO WHETHER PER DIEM IS TO BE ALLOWED IN A PARTICULAR INSTANCE AND, IF
SO, THE RATE THEREOF ARE MATTERS OF AGENCY RESPONSIBILITY AND
DISCRETION.
YOU PERFORMED NO TRAVEL UNDER THE ORDER. THE TEMPORARY DUTY WAS
PERFORMED AT JUNEAU, YOUR PERMANENT PLACE OF ABODE. SEE 31 COMP. GEN.
264. THE DETAIL THERETO WAS MADE AT YOUR REQUEST. YOUR STATEMENT THAT
WHEN TRANSFERRING AN EMPLOYEE, AGENCIES "USUALLY GIVE HIM AT LEAST THAT
MUCH TIME IN WHICH TO DISPOSE OF HIS PROPERTY, ARRANGE FOR SHIPMENT OF
HOUSEHOLD GOODS AND CLOSE HIS AFFAIRS," SUPPORTS RATHER THAN REFUTES THE
AGENCY'S POSITION THAT SUCH DETAIL PRIMARILY WAS FOR YOUR CONVENIENCE.
UNDER THE CIRCUMSTANCES THE AGENCY DID NOT AUTHORIZE PER DIEM FOR THE
TEMPORARY DUTY AND, THEREFORE, NO PAYMENT MAY BE MADE.
WE ASSUME THE OREGON STATE TAX TO WHICH YOU REFER WAS WITHHELD
BECAUSE YOU WERE BEING CARRIED ON THE PAYROLL OF THE OREGON OFFICE WHICH
WAS NOT AWARE OF YOUR DECISION TO REMAIN IN ALASKA AT THE TIME THE
PAYROLL WAS PROCESSED. IN ANY EVENT THE AMOUNT SO WITHHELD WAS
SUBSEQUENTLY TRANSFERRED TO THE PROPER ACCOUNT FOR THE STATE OF ALASKA
AND YOU RECEIVED NOTICE THEREOF (FORM W-2) WHICH ENABLED YOU TO TAKE
FULL CREDIT WHEN FILING YOUR TAX RETURN FOR THAT STATE. THUS, IT DOES
NOT APPEAR THAT YOU SUSTAINED ANY LOSS BY REASON OF THE WITHHOLDING.
UPON REVIEW, THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM FOR COST OF
LIVING ALLOWANCE IS SUSTAINED. FURTHER, WE FIND NO CLEAR BASIS FOR
ALLOWANCE OF PER DIEM FOR THE PERIOD IN QUESTION.
B-159579, JUL. 20, 1966
TO CHIEF, PROCUREMENT SECTION, NATIONAL BUREAU OF STANDARDS:
REFERENCE IS MADE TO YOUR LETTER DATED JUNE 28, 1966, WITH
ENCLOSURES, REQUESTING OUR DECISION ON THE LEGALITY OF THE PROPOSED
AWARD OF A CONTRACT FOR THREE UNIVERSAL TESTING MACHINES TO GILMORE
INDUSTRIES, INC., PURSUANT TO INVITATION FOR BIDS NO. B-158566, WHICH
WAS ISSUED MARCH 29, 1966.
BIDS WERE SOLICITED FROM 13 FIRMS AND THE PROCUREMENT WAS SYNOPSIZED
IN THE COMMERCE BUSINESS DAILY. THE FOLLOWING THREE BIDS WERE RECEIVED
AND OPENED ON MAY 20, 1966:
TABLE
OPTION NOT
OPTION I OPTION II SPECIFIED
-------- --------- ---------- STEELCRAFT ENGINEERING
$142,600
CORP. TINIUS OLSEN TESTING $179,785 $219,335
MACHINE CO. GILMORE INDUSTRIES, INC. $224,000 $259,000
IT IS REPORTED THAT IN EVALUATION OF THE BIDS, STEELCRAFT'S WAS
DETERMINED TO BE NONRESPONSIVE BECAUSE IT DID NOT STATE THE "MODELS OF
THE MACHINES" OFFERED AND INCLUDED NO DESCRIPTIVE LITERATURE AS REQUIRED
BY PARAGRAPH 5 OF THE SPECIFICATIONS. TINIUS OLSEN'S BID WAS ALSO FOUND
NONRESPONSIVE BECAUSE:
"/A) IN SEVERAL INSTANCES THEIR LETTER ACCOMPANYING THEIR BID
CONTAINS WHAT WE CONSIDER MAJOR EXCEPTIONS TO OUR SPECIFICATIONS,
CHIEFLY (I) BY DEVIATING FROM OUR TECHNICAL REQUIREMENTS AND (II)
INCLUDING LANGUAGE WHICH DOES NOT GUARANTEE THAT THE NATIONAL BUREAU OF
STANDARDS WILL IN FACT OBTAIN EQUIPMENT MEETING OUR REQUIREMENTS IF AN
ORDER SHOULD BE PLACED WITH THEM.'
SINCE THE PRICE BID BY GILMORE, THE ONLY REMAINING RESPONSIVE BIDDER,
WAS CONSIDERED HIGH, NEGOTIATIONS FOR A REDUCTION IN ITS OFFER WERE
UNDERTAKEN, WHICH RESULTED IN A LOWERING OF ITS PRICE FOR OPTION II TO
$219,900, AND AWARD TO IT IN THE REDUCED AMOUNT IS PROPOSED.
TINIUS OLSEN IN ITS OWN BEHALF AND THROUGH ITS ATTORNEYS, OBERMAYER,
REBMANN, MAXWELL AND HIPPEL, HAS PROTESTED REJECTION OF ITS BID AND THE
PROPOSED AWARD TO GILMORE. THE BASIS OF ITS PROTEST HAS BEEN STATED IN
ITS CONFERENCE WITH PROCURING ACTIVITY PERSONNEL ON JUNE 14, 1966, AND
IN ITS LETTER OF JUNE 21, 1966, TO THE PROCURING ACTIVITY AND IN ITS
ATTORNEY'S LETTER OF JUNE 28, 1966, TO OUR OFFICE. IN VIEW OF OUR
CONCLUSION HEREINAFTER STATED, IT IS NOT NECESSARY TO DISCUSS THE
ARGUMENTS PRESENTED BY TINIUS OLSEN.
SINCE REJECTION OF THE STEELCRAFT BID WAS BASED UPON ITS FAILURE TO
FURNISH DESCRIPTIVE LITERATURE, AND REJECTION OF THE TINIUS OLSEN BID
WAS BASED UPON EXCEPTIONS TO THE ADVERTISED SPECIFICATIONS, THE FIRST
QUESTION FOR CONSIDERATION IS THE PROPRIETY AND EFFECT OF THE INCLUSION
OF THE REQUIREMENT FOR DESCRIPTIVE LITERATURE IN THE SUBJECT INVITATION.
THE REQUIREMENT FOR DESCRIPTIVE LITERATURE, AS AMENDED, READS, IN
PERTINENT PART, AS FOLLOWS:
"5.1 BID SUBMISSION--- THE BIDS SHALL INCLUDE SUFFICIENT TECHNICAL
DATA, DESCRIPTIVE MATERIAL AND DRAWINGS TO CLEARLY INDICATE THE NATURE
AND CAPABILITIES OF THE EQUIPMENT OFFERED.
"* * * IN ADDITION TO THE BIDDERS SUBMISSION FOR THE ITEMS IN STRICT
ACCORDANCE WITH THE SPECIFICATION, DEVIATIONS FROM THIS SPECIFICATION
MAY BE PROPOSED, BUT TO BE CONSIDERED THEY MUST BE MINOR IN NATURE AND
MEET THE FOLLOWING CONDITIONS:
"A) DEVIATIONS MUST BE DESCRIBED IN DETAIL SEPARATE FROM THE OTHER
MATERIAL SUBMITTED.
"B) ONLY DEVIATIONS WHICH WILL PROVIDE IMPROVED PERFORMANCE IN THESE
MACHINES OR THE AUXILIARY CONTROL CONSOLE WILL BE ACCEPTED.
"C) THE COSTS RESULTING FROM THE DEVIATIONS MUST BE LOWER THAN OR
EQUAL TO THE PRICES FOR THIS EQUIPMENT AS SPECIFIED.'
WE HAVE RECOGNIZED THAT IN PROCURING HIGHLY TECHNICAL, SPECIALIZED,
COMPLEX, OR NOVEL EQUIPMENT AN ADMINISTRATIVE AGENCY MAY REQUIRE BIDDERS
TO SUPPLY SPECIFIC DESCRIPTIVE DATA ON THE ARTICLES OFFERED, TO ENABLE
IT TO CONCLUDE PRECISELY WHAT THE BIDDER PROPOSES TO FURNISH, AND WHAT
THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD.
36 COMP. GEN. 415. HOWEVER, WE HAVE ALSO HELD THAT A REQUIREMENT THAT
BIDDERS FURNISH UNSPECIFIED DATA WHICH IS "SUFFICIENT" OR ,ADEQUATE" TO
PROVE COMPLIANCE WITH THE SPECIFICATIONS, MAY RENDER AN INVITATION
DEFECTIVE FOR FAILURE TO PUT BIDDERS ON NOTICE OF THE EXTENT OF DETAIL
THAT THE AGENCY REQUIRED THEIR DESCRIPTIVE DATA TO INCORPORATE. 42
COMP. GEN. 598, 42 ID. 737.
THE FEDERAL PROCUREMENT REGULATIONS (FPR) AT SECTION 1-2.202-5 (B),
(C) AND (D) ARE ALSO CONCERNED WITH THE INCLUSION OF DESCRIPTIVE
LITERATURE REQUIREMENTS IN INVITATIONS FOR BIDS, AND PROVIDE THAT
BIDDERS SHALL NOT BE REQUIRED TO FURNISH DESCRIPTIVE LITERATURE AS A
PART OF THEIR BIDS UNLESS THE PROCUREMENT OFFICE DEEMS THAT SUCH
LITERATURE IS NEEDED TO ENABLE IT TO DETERMINE BEFORE AWARD WHETHER
PRODUCTS OFFERED MEET THE SPECIFICATION REQUIREMENTS OF THE INVITATION
FOR BIDS AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH.
ALSO, THE REASONS WHY ACCEPTABLE PRODUCTS CANNOT BE PROCURED WITHOUT THE
SUBMISSION OF DESCRIPTIVE LITERATURE ARE REQUIRED TO BE SET FORTH AND
FILED IN THE CASE FILE. MOREOVER, THE REGULATION STATES THAT WHEN
DESCRIPTIVE LITERATURE IS REQUIRED, THE INVITATION SHALL CLEARLY STATE
WHAT DESCRIPTIVE LITERATURE IS TO BE FURNISHED, THE PURPOSE FOR WHICH IT
IS REQUIRED, THE EXTENT TO WHICH IT WILL BE CONSIDERED IN THE EVALUATION
OF BIDS, AND THE RULES WHICH WILL APPLY IF A BIDDER FAILS TO FURNISH IT
BEFORE BID OPENING.
THE ADMINISTRATIVE FILE FURNISHED IN THIS CASE DOES NOT INCLUDE ANY
MEMORANDUM JUSTIFYING INCLUSION OF THE REQUIREMENT IN THE SUBJECT
INVITATION. THE SPECIFICATIONS OF THE EQUIPMENT BEING PROCURED APPEAR
TO BE STATED IN SUCH DETAIL AS TO "THE NATURE AND CAPABILITIES OF THE
EQUIPMENT OFFERED" THAT THEY LEAVE ALMOST NOTHING FOR THE BIDDER TO
DESCRIBE IN THOSE RESPECTS, AND FURNISH NO STANDARDS FOR EVALUATION OF
DESIGN, MATERIALS OR COMPONENTS EXCEPT TO THE EXTENT THAT SUCH ELEMENTS
ARE SPECIFICALLY PRESCRIBED IN THE SPECIFICATIONS. NOTHING IN THE
RECORD INDICATES THAT THE ARTICLES CALLED FOR BY THE SPECIFICATIONS ARE
OF SUCH A NOVEL, COMPLEX, OR UNUSUAL CHARACTER AS TO LEAVE ROOM FOR
DOUBT AS TO WHETHER THEY COULD BE PRODUCED BY A COMPETENT AND
EXPERIENCED MANUFACTURER OF ARTICLES OF THE SAME GENERAL NATURE. EVEN
IF IT WERE SHOWN THAT AN ACCEPTABLE PRODUCT COULD NOT BE PROCURED
WITHOUT DESCRIPTIVE LITERATURE, A REQUIREMENT FOR SUCH LITERATURE SHOULD
ADVISE BIDDERS WITH PARTICULARITY BOTH AS TO THE EXTENT OF THE DETAIL
REQUIRED AND THE PURPOSE IT IS EXPECTED TO SERVE. 38 COMP. GEN. 59; 42
ID. 598; FPR 1-2.202-5 (D). IN ORDER FOR EACH BIDDER TO BE ON AN
EQUAL BASIS IN SUPPLYING DESCRIPTIVE LITERATURE, IT IS ESSENTIAL THAT
THE NEED FOR SUCH LITERATURE BE SET FORTH IN THE INVITATION IN THE
GREATEST DETAIL PRACTICAL. THE MERE STATEMENT THAT THE BIDS SHALL
INCLUDE "SUFFICIENT TECHNICAL DATA, DESCRIPTIVE MATERIAL AND DRAWINGS TO
CLEARLY INDICATE THE NATURE AND CAPABILITIES OF THE EQUIPMENT" IS NOT
SUFFICIENT TO MEET THIS REQUIREMENT WHERE, AS IN THIS INSTANCE, THOSE
CHARACTERISTICS ARE CLEARLY AND DEFINITELY STATED IN THE SPECIFICATIONS.
FOR THE FOREGOING REASONS IT IS OUR OPINION THAT THE DESCRIPTIVE
LITERATURE REQUIREMENT WAS IMPROPERLY INCLUDED IN THE INVITATION.
CONVERSELY, IF ITS INCLUSION CAN BE JUSTIFIED, IT IS OUR OPINION THAT
THE INVITATION WAS DEFECTIVE BECAUSE THE EXTENT OF DETAIL REQUIRED IN
THE DESCRIPTIVE LITERATURE, AND THE PURPOSE TO BE SERVED BY IT, WERE NOT
PROPERLY SET OUT.
A FURTHER REASON WHY, IN OUR OPINION, INCLUSION OF THE REQUIREMENT
HAS THE EFFECT OF MAKING THE INVITATION DEFECTIVE IS THE LANGUAGE
THEREIN, TO THE EFFECT THAT "MINOR" DEVIATIONS FROM THE SPECIFICATIONS
MAY BE PROPOSED AND WILL NOT REQUIRE REJECTION OF THE BID. THIS
LANGUAGE PERMITTED BIDDERS TO OFFER EQUIPMENT VARYING FROM THE
SPECIFICATIONS TO SOME UNDEFINED EXTENT, EXCEPT FOR THE CONDITION THAT
DEVIATIONS MUST PROVIDE IMPROVED PERFORMANCE, WITHOUT ADVISING THE
BIDDERS THE BASIS UPON WHICH THEIR POINTS OF NONCOMPLIANCE WOULD BE
EVALUATED OR HOW THE ,IMPROVED PERFORMANCE" WOULD BE DETERMINED. AS WE
HELD IN 36 COMP. GEN. 380, 385:
"THE "BASIS" OF EVALUATION WHICH MUST BE MADE KNOWN IN ADVANCE TO THE
BIDDERS SHOULD BE AS CLEAR, PRECISE AND EXACT AS POSSIBLE. IDEALLY, IT
SHOULD BE CAPABLE OF BEING STATED AS A MATHEMATICAL EQUATION. IN MANY
CASES, HOWEVER, THAT IS NOT POSSIBLE. AT THE MINIMUM, THE BASIS" MUST
BE STATED WITH SUFFICIENT CLARITY AND EXACTNESS TO INFORM EACH BIDDER
PRIOR TO BID OPENING, NO MATTER HOW VARIED THE ACCEPTABLE RESPONSES, OF
OBJECTIVELY DETERMINABLE FACTORS FROM WHICH THE BIDDER MAY ESTIMATE
WITHIN REASONABLE LIMITS THE EFFECT OF THE APPLICATION OF SUCH
EVALUATION FACTOR ON HIS BID IN RELATION TO OTHER POSSIBLE BIDS. BY THE
TERM "OBJECTIVELY DETERMINABLE FACTORS" WE MEAN FACTORS WHICH ARE MADE
KNOWN TO OR WHICH CAN BE ASCERTAINED BY THE BIDDER AT THE TIME HIS BID
IS BEING PREPARED. FACTORS WHICH ARE BASED ENTIRELY OR LARGELY ON A
SUBJECTIVE DETERMINATION TO BE ANNOUNCED BY REPRESENTATIVES OF THE
CONTRACTING AGENCY AT THE TIME OF OR SUBSEQUENT TO THE OPENING OF BIDS
VIOLATE THE PRINCIPLE FOR THE REASON THAT THEY ARE NOT DETERMINABLE BY
THE BIDDER AT THE TIME HIS BID IS BEING PREPARED.'
SEE ALSO 37 COMP. GEN. 479; 39 ID. 570; 43 ID. 544.
ALTHOUGH 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, 38 COMP. GEN. 190, PURCHASES SUCH AS THIS, ADVERTISED PURSUANT
TO 41 U.S.C. 253, MUST PERMIT FULL AND FREE COMPETITION CONSISTENT WITH
THE PROCUREMENT OF THE PROPERTY. THE FULL AND FREE COMPETITION REQUIRED
CANNOT BE OBTAINED UNLESS THE INVITATION AND THE SPECIFICATIONS ARE
SUFFICIENTLY DEFINITE TO PERMIT THE PREPARATION AND EVALUATION OF BIDS
ON A COMMON BASIS, 36 COMP. GEN. 380, AND WE MUST THEREFORE CONCLUDE
THAT FULL AND FREE COMPETITION WAS NOT OBTAINED UNDER THE INVITATION IN
THE INSTANT PROCUREMENT.
WITH RESPECT TO THE PROPRIETY OF NEGOTIATING A LOWER PRICE WITH
GILMORE, IN OUR DECISION OF NOVEMBER 4, 1965, B-157411, WE HELD THAT
CONFINING NEGOTIATIONS TO ONLY ONE BIDDER, WHOSE BID PRICE WOULD
OTHERWISE HAVE BEEN CONSIDERED UNREASONABLE, WOULD CONSTITUTE A
VIOLATION OF 10 U.S.C. 2304 (A) (15), WHICH REQUIRES NEGOTIATION WITH
ALL RESPONSIBLE BIDDERS WHERE THE BID PRICES ARE CONSIDERED
UNREASONABLE. COMPARE B-157055, JUNE 21, 1966, WHERE NEGOTIATION WAS
PERMITTED WITH
ONLY ONE BIDDER BECAUSE ALL OTHER BIDDERS WERE CONSIDERED
NONRESPONSIBLE. SINCE IN THE INSTANT CASE, THERE HAS BEEN NO
DETERMINATION THAT EITHER STEELCRAFT OR TINIUS OLSEN WAS NONRESPONSIBLE,
IT IS OUR OPINION THAT ANY NEGOTIATION WITH GILMORE, BASED UPON A
DETERMINATION THAT ITS BID PRICE
WAS UNREASONABLE, MUST BE ACCOMPLISHED UNDER THE SIMILAR PROVISIONS
OF 41 U.S.C. 252 (C) (14), WHICH APPLY HERE AND WOULD ALSO REQUIRE THE
CONDUCT OF NEGOTIATIONS WITH STEELCRAFT AND TINIUS OLSEN.
IN VIEW OF THE FOREGOING, WE MUST CONCLUDE THAT THE PROCUREMENT
SHOULD EITHER BE READVERTISED UNDER SPECIFICATIONS WHICH PROPERLY SET
FORTH THE NEEDS OF THE GOVERNMENT AND THE STANDARDS TO BE APPLIED IN THE
EVALUATION OF BIDS, OR THAT NEGOTIATIONS BE CONDUCTED IN ACCORD WITH 41
U.S.C. 252 (C) (14).
B-153307, JUL. 19, 1966
TO MR. WILBURN R. ARMSTRONG:
THIS REFERS TO YOUR LETTER OF MAY 3, 1966, REQUESTING REVIEW OF OUR
SETTLEMENT DATED MARCH 23, 1966, CONCERNING YOUR CLAIM FOR OVERTIME
COMPENSATION FOR SERVICES PERFORMED AS A SECURITY GUARD AT THE UNITED
STATES NAVAL ORDNANCE PLANT, SOUTH CHARLESTON, WEST VIRGINIA.
OUR SETTLEMENT ALLOWED YOU OVERTIME COMPENSATION FOR REPORTING TO
WORK EACH DAY TWENTY-FIVE MINUTES PRIOR TO THE START OF YOUR SHIFT
DURING THE PERIODS JUNE 19, 1955, TO JANUARY 12, 1957, AND JANUARY 10,
1960, TO FEBRUARY 5, 1961. HOWEVER, NO AMOUNT WAS ALLOWED FOR THE
PERIOD JANUARY 13, 1957, TO JANUARY 9, 1960, SINCE YOUR OFFICIAL SERVICE
RECORDS FOR THAT PERIOD WERE UNAVAILABLE. BY YOUR LETTER OF MAY 3,
1966, YOU REQUEST THAT WE AGAIN CONSIDER YOUR CLAIM FOR OVERTIME
COMPENSATION FOR THE PERIOD JANUARY 13, 1957, TO JANUARY 9, 1960.
THE DEPARTMENT OF THE NAVY HAS REPORTED THAT THEY HAVE BEEN UNABLE TO
LOCATE YOUR SERVICE HISTORY RECORDS FOR THE PERIOD JANUARY 13, 1957, TO
JANUARY 9, 1960, EITHER AT THE NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA,
OR AT THE FEDERAL RECORDS CENTER, ST. LOUIS, MISSOURI. SINCE THERE ARE
NO OFFICIAL RECORDS AVAILABLE TO SUPPORT YOUR CLAIM FOR THAT PERIOD AND
SINCE THE PRESENT UNAVAILABILITY OF EVIDENCE MAY BE DUE, IN PART, TO
YOUR OWN DELAY IN FILING YOUR CLAIM, NO AMOUNT MAY BE ALLOWED FOR THE
PERIOD CONCERNED.
B-158821, JUL. 19, 1966
TO S.M.S. INSTRUMENTS, INC. :
WE REFER AGAIN TO YOUR LETTER DATED MARCH 28, 1966, AND SUBSEQUENT
CORRESPONDENCE, PROTESTING THE AWARD OF A CONTRACT TO ANY OTHER OFFEROR
UNDER REQUEST FOR PROPOSALS NO. 36-600-66-5139 ISSUED
BY THE OKLAHOMA CITY AIR MATERIEL AREA, TINKER AIR FORCE BASE,
OKLAHOMA.
WE HAVE BEEN INFORMED BY THE ACTING CHIEF, PROCUREMENT OPERATIONS
DIVISION, DEPARTMENT OF THE AIR FORCE, THAT THE SMALL BUSINESS
ADMINISTRATION ISSUED YOU A CERTIFICATE OF COMPETENCY AS TO CAPACITY AND
CREDIT TO PERFORM THIS PROCUREMENT, AND THAT THE CONTRACTING OFFICER
AWARDED YOU CONTRACT NO. 34/601/-27128 ON JUNE 20, 1966.
AS YOUR COMPLAINT HAS BEEN REMEDIED ADMINISTRATIVELY WE SHALL TREAT
YOUR PROTEST AS WITHDRAWN AND ARE CLOSING OUR FILE ON THE MATTER.
B-159107, JUL. 19, 1966
TO LITTLE GIANT CRANE AND SHOVEL, INCORPORATED:
FURTHER REFERENCE IS MADE TO YOUR TELEFAX DATED MAY 4, 1966,
PROTESTING AGAINST THE REJECTION OF YOUR BID TO SUPPLY ONE NEW 6 BY 4
TRUCK-MOUNTED CRANE. THE REQUIREMENT HAS BEEN TWICE SUBMITTED TO
COMPETITIVE BIDDING BY THE VICKSBURG DISTRICT, UNITED STATES ARMY CORPS
OF ENGINEERS, FIRST PURSUANT TO INVITATION FOR BIDS NO.
CIVENG-22-052-66-119 ISSUED ON MARCH 19, 1966, AND THEN UNDER INVITATION
FOR BIDS NO. CIVENG-22-052-66-149, ISSUED ON APRIL 26, 1966. YOUR BID
OF $35,648.20 F.O.B. DESTINATION AND $34,833.20 F.O.B. SHIPPING POINT
WAS THE LOWEST RECEIVED OF THE THREE BIDS TENDERED ON THE FIRST
INVITATION AND YOUR BID OF $35,707 F.O.B. DESTINATION WAS THE LOWER OF
TWO BIDS RECEIVED ON THE SECOND SOLICITATION. ALL BIDS WERE REJECTED
AND BOTH INVITATIONS WERE CANCELLED BECAUSE ALL THE BIDS SUBMITTED WERE
DEEMED BY THE PROCURING AGENCY TO BE NONRESPONSIVE FOR VARIOUS REASONS.
ALTHOUGH YOUR PROTEST IS DIRECTED AT THE REJECTION OF YOUR BID ON THE
FIRST INVITATION THE QUESTION BEFORE US IS THE PROPRIETY OF THE
ADMINISTRATIVE DETERMINATIONS TO CANCEL BOTH INVITATIONS. THERE ARE
ONLY SLIGHT DIFFERENCES IN THE WORDING OF THE TWO SOLICITATIONS AND
HENCE FOR ALL PRACTICAL PURPOSES THEY MAY BE TREATED AS IDENTICAL. EACH
SET FORTH A SET OF SPECIFICATIONS IN TWO PARTS AS PART OF THE SCHEDULE.
THE FIRST PART WAS OF A GENERAL NATURE AND THE SECOND, CONSISTING OF
ABOUT THREE PAGES, STATED THE TECHNICAL REQUIREMENTS WITH RESPECT TO THE
CRANE, ITS COMPONENTS AND EQUIPMENT. BOTH INVITATIONS RECITED AS
FOLLOWS:
"2. INFORMATION TO BE FURNISHED BY BIDDERS. IN CONNECTION WITH THE
EQUIPMENT PROPOSED TO BE FURNISHED IN RESPONSE TO THIS INVITATION FOR
BIDS, THE BIDDER SHALL FURNISH WITH HIS BID MANUFACTURER'S CATALOG DATA,
WITH DETAILED SPECIFICATIONS, ALL IN DUPLICATE, SETTING FORTH COMPLETE
TECHNICAL DATA RELATING TO EACH REQUIREMENT IN SECTION II OF THESE
SPECIFICATIONS. BIDS NOT ACCOMPANIED BY THE REQUIRED DATA WILL BE
REJECTED. ALL TECHNICAL DATA OR SPECIFICATIONS ON WHICH THE AWARD WAS
BASED WILL BECOME A PART OF THE RESULTING CONTRACT.'
YOUR BID ON THE FIRST INVITATION WAS REJECTED BECAUSE THE DESCRIPTIVE
LITERATURE FURNISHED WITH IT SHOWED THAT THE UNIT WHICH YOU WERE
PROPOSING DEVIATED FROM THE REQUIREMENTS OF THE GOVERNMENT'S
SPECIFICATIONS IN CERTAIN MATERIAL RESPECTS AND BECAUSE CERTAIN OTHER
INFORMATION WITHOUT WHICH YOUR BID COULD NOT PROPERLY BE EVALUATED WAS
NOT SUBMITTED. WITH RESPECT TO THE FORMER THE RECORD SHOWS THE
FOLLOWING NONCONFORMITIES: THE TECHNICAL SPECIFICATIONS REQUIRED A BOOM
40 FEET IN LENGTH AND A BOOM INSERT TO INCREASE THE LENGTH TO 50 FEET
WHEREAS THE LETTER DATED APRIL 12, 1966, WHICH ACCOMPANIED YOUR BID,
QUOTED ON A 30-FOOT CRANE BOOM EQUIPPED WITH TWO-FOOT CRANE BOOM
EXTENSIONS; THE ROTATING UNIT WAS TO BE POWERED BY A DIESEL ENGINE
TORQUE CONVERTER OF NOT LESS THAN 82 HORSE POWER RATED WITH ACCESSORIES
AT FULL LOAD GOVERNED SPEED OF 1690 R.P.M., WHEREAS THE PERFORMANCE
CURVE INCLUDED IN YOUR BID TO DESCRIBE THE PERKINS ENGINE PROPOSED TO BE
USED TO POWER THE ROTATING UNIT INDICATES A "CONTINUOUS" BRAKE
HORSEPOWER OF ABOUT 72 AT THE SPECIFIED 1690 R.P.M. AND APPARENTLY
WITHOUT THE TORQUE CONVERTER ATTACHED; THE SPECIFICATIONS REQUIRED A
WHEELBASE OF NO LESS THAN 180 INCHES WHEREAS YOUR UNIT WAS SCHEDULED IN
THE BID AS HAVING A WHEELBASE OF 175 INCHES, AND YOU RESERVED THE RIGHT
TO CHANGE THE ADVERTISED SPECIFICATIONS WITHOUT LIABILITY IN YOUR
COMMERCIAL BROCHURE. WE UNDERSTAND THAT YOU FAILED TO FURNISH ANY
DESCRIPTION OF THE TORQUE CONVERTER UPON WHICH YOUR FIRST BID WAS
PREDICATED AND, CONTRARY TO THE SPECIFIED REQUIREMENT THAT THE MINIMUM
WEIGHT OF THE UNIT BE 51,300 POUNDS, YOUR BID SHOWED A "BASIC" WEIGHT OF
THE CARRIER AS 19,100 POUNDS AND BASIC WEIGHT OF 19,216 POUNDS FOR THE
UPPER OR CRANE PORTION. THE TOTAL WEIGHT OF 38,316 POUNDS IS 12,984
POUNDS LESS THAN THE REQUIRED MINIMUM WEIGHT AND YOUR BID DID NOT
INDICATE WHETHER THE "BASIC" WEIGHT INCLUDED BOOM AND INSERTS,
OUTRIGGERS, COUNTERWEIGHTS, OR TORQUE CONVERTER. WE ARE GIVEN TO
UNDERSTAND THAT THE MINIMUM WEIGHT IS AN ESSENTIAL FACTOR IN THE
ESTABLISHMENT OF THE CLASS AND CAPACITY OF THE MACHINE.
YOUR BID ON THE SECOND INVITATION WAS BASICALLY THE SAME AS THE
PREVIOUS OFFER EXCEPT THAT YOU STRUCK OUT OR MODIFIED BY TYPEWRITER
SEVERAL PROVISIONS OF THE STANDARD BROCHURE YOU TENDERED IN SATISFACTION
OF THE DESCRIPTIVE LITERATURE REQUIREMENT. THE PROCURING INSTALLATION
VOICED THE FOLLOWING CRITICISMS OF THIS SECOND BID: THE DELETIONS POSED
THE QUESTION WHETHER YOUR BID WAS IN FACT ON STANDARD COMMERCIAL
EQUIPMENT AS REQUIRED BY THE SPECIFICATIONS OR ON A SPECIALLY MODIFIED
UNIT; THE SECOND BID DOES NOT RESOLVE THE QUESTIONS REGARDING THE
UNIT'S WEIGHT; ALTHOUGH THE MANUFACTURER OF THE TORQUE CONVERTER IS
IDENTIFIED THE BID DOES NOT STATE A MODEL NUMBER OR INCLUDE DATA ON THE
PARTICULAR CONVERTER BID UPON; YOUR BID FAILED TO FURNISH DATA ON THE
HYDRAULIC OPERATED OUTRIGGERS; YOU DID NOT STATE WHETHER YOUR PROPOSED
UNIT WOULD MEET SPEED AND GRADE-ABILITY REQUIREMENTS.
PARAGRAPH 2-202.5 (D) (1) OF THE ARMED SERVICES PROCUREMENT
REGULATION PROVIDES THAT WHEN BIDDERS ARE REQUIRED TO SUBMIT DESCRIPTIVE
LITERATURE AS PART OF THEIR BIDS, THE INVITATION FOR BIDS SHALL CLEARLY
STATE WHAT DESCRIPTIVE LITERATURE IS TO BE FURNISHED, THE PURPOSE FOR
WHICH IT IS REQUIRED, THE EXTENT TO WHICH IT WILL BE CONSIDERED IN THE
EVALUATION OF BIDS, AND THE RULES WHICH WILL APPLY IF THE LITERATURE
FURNISHED DOES NOT COMPLY WITH THE INVITATION REQUIREMENTS. THE
REGULATION IS UNDOUBTEDLY BASED ON OUR DECISION PUBLISHED AT 42 COMP.
GEN. 598 WHEREIN WE HELD THAT DESCRIPTIVE LITERATURE REQUIREMENT MUST BE
STATED IN THE INVITATION WITH SUCH PARTICULARITY AS IS NECESSARY TO
APPRISE BIDDERS OF THE COMPONENTS OR CHARACTERISTICS OF THE END PRODUCT
AS TO WHICH INFORMATION IS REQUIRED AND OF THE SPECIFIC DATA WITH REGARD
TO THESE ITEMS WHICH MUST BE INCLUDED IN THE BID. UNLESS THE INVITATION
SATISFIES THIS REQUIREMENT BIDDERS WILL BE WITHOUT A COMMON BASIS FOR
COMPETITION AND THE GOVERNMENT MAY FIND ITSELF AFTER RECEIPT OF THE BIDS
WITH INSUFFICIENT INFORMATION TO EVALUATE WHAT THE BIDDERS ARE OFFERING
TO FURNISH.
WE THINK NEITHER OF THE INVITATIONS ISSUED IN THIS CASE ADEQUATELY
COMMUNICATED THE MATERIAL ASPECTS OF THE GOVERNMENT'S MINIMUM
REQUIREMENTS TO PROSPECTIVE BIDDERS. THE QUESTION OF THE RESPONSIVENESS
OF EITHER OR BOTH OF YOUR BIDS NEED NOT BE REACHED HERE BECAUSE WE AGREE
WITH THE CORPS OF ENGINEERS THAT THE BEST INTERESTS OF THE GOVERNMENT
DICTATE READVERTISEMENT OF THE REQUIREMENT AT A LATER DATE UNDER AN
INVITATION WHICH MEETS THE CRITICISM HEREINABOVE SET FORTH.
B-159226, JUL. 19, 1966
TO DINGER CONTRACTING COMPANY:
FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED MAY 18, 1966, AND
CORRESPONDENCE OF SAME DATE AND MAY 19, 1966, PROTESTING AGAINST AN
AWARD TO ANY COMPANY PURSUANT TO INVITATION FOR BIDS NO. NBY-67676,
ISSUED BY THE BUREAU OF YARDS AND DOCKS, DEPARTMENT OF THE NAVY, ON THE
GROUNDS THAT THE SPECIFICATIONS WERE CONFUSING AND MISLEADING.
THE ABOVE-REFERENCED INVITATION WAS ISSUED ON APRIL 1, 1966, AND
SOLICITED BIDS FOR THE REMOVAL OF EXISTING AIRCRAFT FUELING POINTS AND
INSTALLATION OF A NEW JET AIRCRAFT FUELING SYSTEM AT CHARLESTON AIR
FORCE BASE, CHARLESTON, SOUTH CAROLINA.
TWELVE FIRMS SUBMITTED BIDS IN RESPONSE TO THE INVITATION, THE LOW
BID OF $697,257 BEING SLIGHTLY MORE THAN NINE-THOUSAND DOLLARS LOWER
THAN THE DINGER CONTRACTING COMPANY BID OF $706,412. AWARD WAS MADE TO
THE LOW BIDDER, FRANK A. MCBRIDE COMPANY, BRUNSWICK, GEORGIA, ON JUNE 9,
1966. DINGER CONTRACTING COMPANY PROTESTS THIS AWARD ON THE GROUNDS
THAT THE SPECIFICATIONS WERE CONFUSING AND MISLEADING THEREBY DEPRIVING
ALL BIDDERS OF AN EQUAL OPPORTUNITY TO SUBMIT A COMPETITIVE BID ON THE
SAME REQUIREMENTS. DINGER, THEREFORE, PROTESTS THAT ALL BIDS SHOULD BE
REJECTED AND THE JOB READVERTISED.
THE PROTESTANT CLAIMS THE SPECIFICATIONS WERE CONFUSING AND
MISLEADING IN THREE RESPECTS: FIRST, THE AMOUNT OF SOIL-CEMENT NEEDED
TO BACK-FILL THE TRENCHES COULD NOT BE DETERMINED FROM THE
SPECIFICATIONS OR THE DRAWINGS; SECOND, THE MEANING OF THE TERM
"SOIL-CEMENT" IS NOT CLEAR; AND THIRD, THE OMISSION OF BORINGS FOR THE
APRON TRENCH EXCAVATIONS DID NOT SHOW THE POSSIBLE EXISTENCE OF
UNDERGROUND WATER. WE DO NOT AGREE WITH THESE CONTENTIONS.
IN REGARD TO DINGER'S FIRST CLAIM, THAT THE AMOUNT OF SOIL-CEMENT
NEEDED FOR BACK-FILLING THE TRENCHES WAS NOT ASCERTAINABLE FROM THE
SPECIFICATIONS AND DRAWINGS, WE NOTE IT IS TRUE THE PRECISE AMOUNT OF
BACK-FILL IS NOT GIVEN IN THE SPECIFICATIONS. TO DO SO WOULD BE MOST
IMPRACTICABLE, IF NOT IMPOSSIBLE, INASMUCH AS SOME OF THE TRENCHES ARE
LIKELY TO BE OF DEPTHS AND WIDTHS NOT FULLY DETERMINABLE IN ADVANCE
BECAUSE OF VARIOUS ROCK FORMATIONS AND OTHER UNDERGROUND CONDITIONS
WHICH REQUIRE ADDITIONAL UNFORESEEABLE DIGGING. HOWEVER, THE
SPECIFICATIONS AND DRAWINGS DO INDICATE THE LINEAL LENGTH OF THE PIPE;
THE IFB STATES THAT APPROXIMATELY 12,000 LINEAR FEET OF VARIOUS SIZE
PIPING WILL BE NEEDED FOR THE JOB. IF THIS ESTIMATE DID NOT SATISFY A
PROSPECTIVE BIDDER, AND WELL IT MIGHT NOT, HE COULD SCALE THE LENGTH OF
THE PIPING NEEDED FROM THE "FUEL PIPING PLAN" DRAWINGS. IN ADDITION,
THE DRAWINGS AND THE IFB ARE EXPLICIT AS TO THE NUMBER OF FUELING POINTS
THAT ARE REQUIRED AND, THUS, THE CONTRACTOR KNOWS HOW MANY TRENCHES MUST
BE DUG. WITH ALL THIS INFORMATION AT HAND, AN EXPERIENCED CONTRACTOR
SUCH AS DINGER SHOULD HAVE HAD NO TROUBLE IN MAKING A REASONABLY
ACCURATE ESTIMATE OF THE AMOUNT OF BACKFILL NECESSARY TO FILL THESE
TRENCHES.
SOMEWHAT ALONG THE SAME LINES, DINGER ARGUES THAT THE TERM
"SOIL-CEMENT" AS USED IN THE SPECIFICATIONS AND DRAWINGS WAS CONFUSING
IN THAT HE COULD NOT DETERMINE THE CORRECT COMBINATION OF SOIL AND
CEMENT TO BE MIXED TOGETHER AND THAT THIS UNCERTAINTY SERVED TO INCREASE
HIS BID. IN THIS REGARD, WE HAVE BEEN INFORMED BY THE DEPARTMENT OF THE
NAVY THAT "SOIL-CEMENT" HAS A DEFINITE MEANING AND IS A MIXTURE OF
APPROXIMATELY 90 PERCENT SOIL AND 10 PERCENT CEMENT. THE GOVERNMENT
ESTIMATE FOR THE IN PLACE PRICE OF THE SOIL-CEMENT WAS $10 PER CUBIC
YARD AND THE PRICE QUOTED TO DINGER BY TWO CONCRETE COMPANIES IN
CHARLESTON WAS $10.50 PER CUBIC YARD. WE DO NOT BELIEVE THAT DINGER OR
THE OTHER BIDDERS WERE PREJUDICED BY THE USE OF THIS TERM. HOWEVER,
EVEN IF THE CONTRACTORS REALLY DID NOT KNOW PRECISELY WHAT THE TERM
MEANT, THE SUBCONTRACTORS, THAT IS, THE CONCRETE COMPANIES, CERTAINLY
DID AND FIXED THEIR PRICES ACCORDINGLY. THEREFORE, THE ARGUMENT
ADVANCED THAT "SOIL-CEMENT" COULD INDICATE SEVERAL DIFFERENT
COMBINATIONS OF SOIL AND CEMENT IS, WE FEEL, WITHOUT MERIT.
DINGER'S THIRD CONTENTION IS THAT NO BORINGS WERE SHOWN FOR THE APRON
TRENCH EXCAVATIONS, THEREBY CAUSING UNCERTAINTY AS TO THE POSSIBILITY OF
UNDERGROUND WATER WHICH WOULD RESULT IN INCREASED BIDS. DINGER STATES
THE LOCAL CONTRACTORS WHO WERE CONVINCED A WATER PROBLEM EXISTED
REFLECTED THIS IN THEIR BIDS WHICH WERE IN THE $800,000 TO $900,000
RANGE, AS COMPARED TO THE BIDS OF NON-LOCAL CONTRACTORS WHOSE BIDS WERE
IN THE $700,000 RANGE. ASSUMING, ARGUENDO, THIS TO BE TRUE, WE DO NOT
KNOW HOW DINGER WAS PREJUDICED BY THIS SPECIAL KNOWLEDGE OF THE
CHARLESTON CONTRACTORS. INDEED, IT APPEARS DINGER WAS AIDED SINCE HE
UNDERBID ALL OF THE LOCAL CONTRACTORS AND THEY ALONE CAN CLAIM TO HAVE
BEEN PREJUDICED BY THE OMISSION OF BORINGS. THE SPECIFICATIONS DID SHOW
BORINGS FOR THE NEW PUMPHOUSE WHICH INDICATED WATER THERE AT LEVELS FROM
4 FEET 10 INCHES TO 5 FEET 2 INCHES BELOW THE SURFACE. IT IS
INTERESTING TO NOTE THAT NONE OF THE CHARLESTON CONTRACTORS HAS
PROTESTED THE AWARD IN THIS CASE. FURTHERMORE, THE ADMINISTRATIVE
REPORT IN THIS CASE INDICATES IT IS NOT THE GENERAL PRACTICE TO SHOW
BORINGS FOR APRON TRENCH EXCAVATIONS.
FINALLY, THE SCALE OF OFFERS ENCLOSED WITH THE ADMINISTRATIVE REPORT
DISCLOSES THE FOUR LOW BIDDERS WERE WITHIN A RANGE OF FIVE PERCENT OF
ONE ANOTHER.
IT IS OUR VIEW THE FACTS AND CIRCUMSTANCES IN THIS CASE INDICATE THAT
SOME DEGREE OF ESTIMATING WAS REQUIRED OF THE BIDDERS, BUT THAT THIS WAS
NOT AN UNREASONABLE REQUIREMENT NOR UNSUSCEPTIBLE OF REASONABLE
ACCURACY. ACCORDINGLY, THE PROTEST OF DINGER CONTRACTING COMPANY IS
DENIED.
B-159420, JUL. 19, 1966
TO ADMINISTRATOR, FEDERAL AVIATION AGENCY:
WE REFER TO LETTER OF JUNE 24, 1966, REFERENCE PT-20, FROM THE CHIEF,
PERSONNEL PROGRAMS DIVISION, OFFICE OF PERSONNEL AND TRAINING, RELATIVE
TO THE GRANTING OF COMPENSATORY TIME OFF TO AN AIR TRAFFIC CONTROLLER
WHO, BY ORDERS OF RESPONSIBLE ADMINISTRATIVE OFFICIALS, WAS DIRECTED TO
TAKE A PHYSICAL EXAMINATION IN A GOVERNMENT MEDICAL FACILITY ON HIS
REGULAR DAY OFF. IN THIS PARTICULAR CASE THE AIR TRAFFIC CONTROLLER WAS
ADVISED BY LOCAL ADMINISTRATIVE OFFICIALS THAT HE WOULD BE GRANTED
COMPENSATORY TIME FOR THE DAY ON WHICH HE TOOK THE PHYSICAL EXAMINATION
AND, IN FACT, HE WAS GRANTED EIGHT HOURS OF COMPENSATORY TIME FOR SUCH
DAY. SUBSEQUENTLY, THE GRANTING OF THE EIGHT HOURS COMPENSATORY TIME
WAS CONVERTED TO AN EIGHT-HOUR CHARGE AGAINST THE ANNUAL LEAVE OF THE
EMPLOYEE.
YOUR AGENCY'S LETTER POINTS OUT THAT AT THE TIME OF THE PHYSICAL
EXAMINATION OF THE EMPLOYEE THERE WAS NO AGENCY-WIDE PRACTICE OR
INSTRUCTION PROVIDING FOR THE GRANTING OF COMPENSATORY TIME WHEN A
PHYSICAL EXAMINATION IS SCHEDULED ON AN EMPLOYEE'S DAY OFF, BUT NEITHER
WAS THERE ANY POLICY OR INSTRUCTION PRECLUDING THE PRACTICE. THE
EMPLOYING ACTIVITY'S ACTION IN GRANTING THE COMPENSATORY TIME,
THEREFORE, CANNOT REASONABLY BE SAID TO HAVE BEEN IN CONTRAVENTION OF
ANY AGENCY REGULATION, INSTRUCTION OR PRACTICE.
IN SUCH CONNECTION YOUR LETTER SAYS---
"PRIOR TO THE IMPLEMENTATION OF THE NEW MANDATORY MEDICAL PROGRAM,
AGENCY PERSONNEL WHO WERE REQUIRED TO TAKE PHYSICAL EXAMINATIONS IN
ORDER TO BE CERTIFICATED FOR THEIR WORK WERE GRANTED UP TO EIGHT HOURS
OF EXCUSED ABSENCE FROM DUTY TO TAKE THE REQUIRED PHYSICAL EXAMINATION.
THIS POLICY HAS BEEN ADEQUATE IN THE PAST, AND THE AGENCY HAD NOT HAD AN
OPPORTUNITY TO DETERMINE THAT THERE WAS A NEED FOR A SPECIFIC POLICY
COVERING ABSENCES ON NONWORKDAYS.
"UPON IMPLEMENTATION OF THE PROGRAM, AND IN THE ABSENCE OF SPECIFIC
REGULATIONS REGARDING THIS NEW PROGRAM, LOCAL MANAGEMENT ADVISED
EMPLOYEES THAT THEY WOULD BE GIVEN COMPENSATORY TIME OFF FROM DUTY IF
THEY WERE REQUIRED TO TAKE MEDICAL EXAMINATIONS ON THEIR NONWORKDAYS.
THE RIGIDITY OF SCHEDULING REQUIREMENTS NECESSITATED SCHEDULING SOME
EMPLOYEES OUTSIDE THE REGULARLY SCHEDULED WORKWEEK. SINCE THERE WERE NO
REGULATIONS PRECLUDING THE AUTHORIZATION OF COMPENSATORY TIME, IT WAS
GRANTED BY LOCAL MANAGEMENT FOR THOSE CONTROLLERS AT THE AURORA CENTER
SCHEDULED OUTSIDE THEIR REGULAR WORKWEEK.
"IN SUMMARY, LOCAL MANAGEMENT HAD NO ALTERNATIVE IN SCHEDULING THESE
EXAMINATIONS. IN THE ABSENCE OF REGULATIONS TO THE CONTRARY, THE AURORA
CENTER SUPERVISOR AUTHORIZED COMPENSATORY TIME OFF FOR TAKING MEDICAL
EXAMINATIONS DURING NONDUTY HOURS. THIS AUTHORIZATION HAS BEEN
QUESTIONED. WE FEEL THAT THE EMPLOYEES SO AFFECTED SHOULD BE CONSIDERED
IN DUTY STATUS FOR THIS PERIOD.'
IN VIEW OF THE FOREGOING AND SINCE THE AGENCY NOT ONLY DETERMINED AND
DIRECTED WHEN AND WHERE THE MANDATORY PHYSICAL EXAMINATION WAS TO BE
TAKEN, BUT IS OF THE VIEW THAT THE EMPLOYEE WAS IN A DUTY STATUS ON THE
DAY HE TOOK SUCH PHYSICAL EXAMINATION, OUR OPINION IS THAT THE EIGHT
HOURS ANNUAL LEAVE CHARGED MAY BE RECONVERTED TO A CHARGE AGAINST
COMPENSATORY TIME AND THE ANNUAL LEAVE RESTORED TO THE CREDIT OF THE
EMPLOYEE. ACTION IN SIMILAR CASES MAY BE TAKEN IN ACCORDANCE WITH THE
ABOVE.
B-159534, JUL. 19, 1966
TO ADMINISTRATOR, VETERANS ADMINISTRATION:
REFERENCE IS MADE TO A LETTER DATED JUNE 23, 1966, FILE 074B, FROM
THE DIRECTOR, SUPPLY MANAGEMENT SERVICE, REQUESTING A DECISION AS TO THE
ACTION TO BE TAKEN IN REGARD TO ERRORS ALLEGED BY V. MUELLER AND CO. TO
HAVE BEEN MADE IN ITS BID ON WHICH CONTRACT NO. V7018P-1212E IS BASED.
THE MARKETING DIVISION, MEDICAL-DENTAL SCIENTIFIC SUPPLIES, HINES,
ILLINOIS, BY INVITATION NO. M1-17-67, REQUESTED BIDS FOR FURNISHING
VARIOUS SURGICAL INSTRUMENTS. IN RESPONSE V. MUELLER AND CO. SUBMITTED
A BID DATED MAY 9, 1966, TO FURNISH DIFFERENT TYPES OF SURGICAL
INSTRUMENTS TO THE VARIOUS VA SUPPLY DEPOTS LISTED UNDER ITEMS 1 TO 26,
INCLUSIVE, AT THE PRICES SET FORTH OPPOSITE EACH ITEM. THE BID OF THE
COMPANY AS TO ITEMS 7, 10, 12, 13 AND 14 WAS ACCEPTED ON MAY 11, 1966.
BY LETTERS DATED MAY 24 AND JUNE 1 AND 3, 1966, THE COMPANY ADVISED
THAT ERRORS HAD BEEN MADE IN ITS BID IN REGARD TO THE PRICES QUOTED FOR
ITEMS 7, 10, 12, 13, 14 AND OTHER ITEMS. IN REGARD TO ITEMS 7 AND 10,
THE COMPANY STATED THAT THE CORRECT PRICES FOR THOSE ITEMS WERE $8.50
AND $4.35, RESPECTIVELY, INSTEAD OF $3.57 AND $3.60 EACH. IT ALSO
STATED THAT THE CORRECT PRICE FOR ITEMS 12, 13 AND 14 WAS $3.24 EACH
INSTEAD OF $3.43 EACH. THE COMPANY REQUESTED THAT THE CONTRACT
PRICES FOR ITEMS 7, 10, 12, 13 AND 14 BE CORRECTED ACCORDINGLY. IN
SUPPORT OF ITS ALLEGATION OF ERROR, THE COMPANY SUBMITTED ITS WORKSHEETS
WHICH APPEAR TO BE A COPY OF THE INVITATION AND ITS PRINTED PRICE LIST.
IN HIS REPORT OF JUNE 7, 1966, THE CONTRACTING OFFICER STATES THAT THE
COMPANY'S WORKSHEETS INDICATE THAT IN COMPUTING ITS ORIGINAL BID PRICE
FOR ITEM 7, THE COMPANY GRANTED A DISCOUNT OF 69.74 PERCENT FROM THE
LIST PRICE SHOWN ON ITS PRINTED PRICE LIST. IT ALSO IS STATED THAT IN
COMPUTING ITS INTENDED BID PRICE FOR ITEM 7, THE COMPANY GRANTED A
DISCOUNT OF 27.96 PERCENT FROM THE LIST PRICE SHOWN IN ITS PRINTED PRICE
LIST FOR THAT ITEM. ALSO, IT IS FURTHER STATED THAT FROM AN EXAMINATION
OF ALL THE PRICES QUOTED BY THE COMPANY IN ITS BID IT APPEARS THAT IT
INTENDED TO OFFER APPROXIMATELY 28 PERCENT OFF LIST ON ITS BID.
THE ABSTRACT OF BIDS SHOWS THAT V. MUELLER AND CO. QUOTED A PRICE OF
$3.57 EACH FOR ITEM 7 AND THAT THE ONLY OTHER BIDDER ON THAT ITEM QUOTED
A PRICE OF $7 EACH. IT IS UNDERSTOOD INFORMALLY THAT BOTH BIDDERS
OFFERED TO FURNISH INSTRUMENTS MANUFACTURED IN THE UNITED STATES. IN
HIS SUPPLEMENTAL REPORT OF JUNE 15, 1966, IN WHICH HE RECOMMENDED THAT
ITEM 7 OF THE CONTRACT BE CANCELED, THE CONTRACTING OFFICER STATES THAT
IN VIEW OF THE FACT THAT MUELLER QUOTED A PRICE OF $7.90 EACH FOR THE
SAME ITEM UNDER A PREVIOUS INVITATION AND HAVING KNOWLEDGE OF A RISING
MARKET, HE SHOULD HAVE SUSPECTED AN ERROR IN THE BID OF THE COMPANY AND
REQUESTED CONFIRMATION THEREOF. WE AGREE WITH THE CONTRACTING OFFICER
THAT, UNDER THE CIRCUMSTANCES IN THIS CASE, THE BID SHOULD NOT HAVE BEEN
ACCEPTED WITHOUT REQUESTING THE COMPANY TO VERIFY ITS BID. IT IS
REPORTED THAT MUELLER HAS NOT BEGUN MANUFACTURE OF ITEM 7. SINCE
MUELLER'S BID WOULD NO LONGER BE LOW IF CORRECTION WERE PERMITTED, ITEM
7 OF CONTRACT NO. V7018P-1212E MAY BE CANCELED WITHOUT LIABILITY TO THE
COMPANY.
THE ABSTRACT OF BIDS SHOWS THAT ON ITEM 10, MUELLER QUOTED A PRICE OF
$3.60 EACH AND THAT THE TWO OTHER BIDDERS QUOTED UNIT PRICES OF $4.90
AND $10.68. IN VIEW OF THE DIFFERENCE BETWEEN THE AMOUNT OF MUELLER'S
BID AND THE AMOUNTS QUOTED BY THE OTHER BIDDERS, IT APPEARS THAT THE
CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF AN ERROR IN THE
COMPANY'S BID ON THAT ITEM AND THAT THE BID SHOULD NOT HAVE BEEN
ACCEPTED WITHOUT REQUESTING THE COMPANY TO VERIFY ITS BID. ACCORDINGLY,
SINCE MUELLER HAS ESTABLISHED ITS INTENDED BID PRICE, CONTRACT NO.
V7018P-1212E MAY BE AMENDED TO PROVIDE FOR A UNIT PRICE OF $4.35 FOR THE
SURGICAL INSTRUMENT COVERED BY ITEM 10 AND PAYMENT FOR THE INSTRUMENTS
IS AUTHORIZED TO BE MADE ON THAT BASIS. THE BID AS CORRECTED WILL STILL
BE THE LOWEST BID RECEIVED ON THAT ITEM.
IN REGARD TO THE REQUESTED CORRECTION OF THE PRICE FOR ITEMS 12, 13
AND 14, SINCE SUCH CORRECTION INVOLVES A REDUCTION IN PRICE, THERE
APPEARS NO BASIS UPON WHICH WE COULD OBJECT TO SUCH CORRECTION.
ACCORDINGLY, CONTRACT NO. V7018P-1212E MAY BE AMENDED TO PROVIDE FOR A
UNIT PRICE OF $3.24 FOR THE SURGICAL INSTRUMENTS COVERED BY ITEMS 12, 13
AND 14 AND PAYMENT FOR THE INSTRUMENTS IS AUTHORIZED TO BE MADE ON THAT
BASIS.
A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE AMENDMENT TO THE
CONTRACT.
B-159583, JUL. 19, 1966
TO AUTHORIZED CERTIFYING OFFICER, FOREST SERVICE, UNITED STATES
DEPARTMENT OF AGRICULTURE:
YOUR LETTER OF MAY 3, 1966, REFERENCE 6540, WITH ENCLOSURES,
INCLUDING A RECLAIM VOUCHER FOR $104 IN FAVOR OF DAVID CROSBY, AN
EMPLOYEE OF THE FOREST SERVICE, COVERING CERTAIN HOME LEAVE TRAVEL
EXPENSES, REQUESTS OUR DECISION CONCERNING THE METHOD OF REIMBURSEMENT
TO BE USED IN HIS CASE.
THE FACTS IN THE CASE AS RELATED BY YOUR LETTER ARE AS FOLLOWS:
"THE AMOUNT, AS ORIGINALLY CLAIMED, WAS BASED ON COMPARATIVE COSTS OF
TRANSPORTATION VIA JET TOURIST AND JET FAMILY PLAN BETWEEN JUNEAU,
ALASKA AND NEW HAVEN, CONNECTICUT. THE EMPLOYEE, HIS WIFE AND ONE
DEPENDENT TRAVELED BY PRIVATELY OWNED AUTOMOBILE. ONE DEPENDENT
TRAVELED VIA COMMERCIAL AIR CARRIER. A DEDUCTION WAS MADE FROM THE
TRAVELER'S CLAIM FOR THE DIFFERENCE IN COST OF JET TOURIST AND PROPELLER
DRIVEN AIRCRAFT ON FOUR ROUND TRIP FARES BETWEEN JUNEAU, ALASKA AND
SEATTLE, WASHINGTON. THIS DISALLOWANCE WAS BASED ON THE TRAVEL
AUTHORIZATION AS AMENDED WHICH STATES "ENTIRE TRIP MAY NOT, FOR ALL
EXPENSES, EXCEED COST ROUND TRIP FARES PERMISSIBLE UNDER ALLOWANCE FOR
FAMILY PLAN AIR FARES IN ACCORDANCE WITH R10 SUPPLEMENT NO. 23, FSM
6543.52B.' SUPPLEMENT NO. 23 PROVIDES: "2. EMPLOYEES WITH DEPENDENTS.
IN SOME CASES FAMILY PLAN OR OTHER SPECIAL RATES REDUCING TRAVEL COSTS
WILL BE REQUIRED--- FOR TRAVEL BY PRIVATELY OWNED AUTOMOBILE ALLOWANCE
WILL BE FIGURED ON A COMPARATIVE BASIS.'
"DURING THE PERIOD OF TRAVEL BY THE EMPLOYEE, PACIFIC NORTHERN
AIRLINES ESTABLISHED PROPELLER DRIVEN AIRCRAFT SERVICE BETWEEN JUNEAU
AND SEATTLE ON A TRIAL BASIS AT SUBSTANTIALLY REDUCED RATES. FAMILY
PLAN RATES WERE NOT AVAILABLE ON PACIFIC NORTHERN AIRLINES. IN
ACCORDANCE WITH REGION 10 SUPPLEMENT NO. 23, TRANSPORTATION REQUEST
A6,057,096 WAS ISSUED COVERING ROUND TRIP TRANSPORTATION FOR ONE
DEPENDENT WHICH INCLUDED TRANSPORTATION ON PROPELLER DRIVEN AIRCRAFT
BETWEEN JUNEAU AND SEATTLE. SIMILAR TRANSPORTATION WOULD HAVE BEEN
PROVIDED BETWEEN THESE TWO POINTS TO THE EMPLOYEE, HIS WIFE AND OTHER
DEPENDENT IF THEY HAD ELECTED TO TRAVEL BY COMMERCIAL AIR CARRIER.
"THE EMPLOYEE, DAVID CROSBY, HAS RECLAIMED THE AMOUNT DISALLOWED
BASED ON FOREST SERVICE REGULATIONS, FSM 6543.52B, THAT STATES: "TRAVEL
EXPENSES SHALL BE SUBJECT TO PROVISION OF THE STANDARDIZED GOVERNMENT
REGULATIONS" AND SGTR 3.5B (2) WHICH PROVIDES IN PART "WHEN
ACCOMMODATIONS ARE PROVIDED ON BOTH JET AND PROPELLER DRIVEN PLANES THE
COMPARISON WILL BE MADE WITH THE JET PLANES.' "
YOUR QUESTIONS ARE FRAMED AS FOLLOWS:
"1. IS THE EMPLOYEE ENTITLED TO USE HIGHER COST TRANSPORTATION FOR
COMPARATIVE PURPOSES THAN THE COST OF TRANSPORTATION THAT WOULD HAVE
BEEN PROVIDED IF THE GOVERNMENT FURNISHED THE TRANSPORTATION?
"2. IF THE ANSWER TO (1) IS AFFIRMATIVE, IS THE EMPLOYEE ENTITLED TO
USE A COST COMPARATIVE BASIS FOR THE ENTIRE FAMILY AS A GROUP, EVEN
THOUGH ONE MEMBER ACTUALLY TRAVELED VIA COMMON CARRIER? "
IN RESPONSE TO QUESTION 1, SECTION 3.5B (2) (A) OF THE STANDARDIZED
GOVERNMENT TRAVEL REGULATIONS DOES REQUIRE THAT THE CONSTRUCTIVE COST OF
AIR COACH ACCOMMODATIONS BE COMPUTED ON THE BASIS OF JET POWERED PLANES
WHEN SUCH ACCOMMODATIONS ARE FURNISHED BY BOTH JET AND PROPELLER-DRIVEN
PLANES. THEREFORE, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.
CONCERNING QUESTION 2, OUR OPINION IS THAT IN VIEW OF THE AFFIRMATIVE
ANSWER TO QUESTION 1, THE CONSTRUCTIVE COST CEILING FOR THE ENTIRE
FAMILY UNDER THE TRAVEL ORDERS IS REQUIRED TO BE BASED ON JET TOURIST
BETWEEN JUNEAU AND SEATTLE AND JET TOURIST FAMILY FARES BETWEEN SEATTLE
AND PHILADELPHIA. THE CONSTRUCTIVE COST ON THAT BASIS (JET TOURIST AND
JET FAMILY FARES) FOR THE THREE MEMBERS OF THE FAMILY, OR ON THE MILEAGE
BASIS AUTHORIZED IN THE ORDERS PLUS THE COST OF AIR TRAVEL AS PERFORMED
BY THE SON BOTH APPEAR TO EXCEED THE SUM AUTHORIZED BY THE COST CEILING.
SINCE THE RECLAIM VOUCHER, WHICH IS RETURNED HEREWITH, IS IN
CONSONANCE WITH OUR ANSWERS TO YOUR QUESTIONS, IT MAY BE CERTIFIED FOR
PAYMENT IF OTHERWISE CORRECT.
B-159659, JUL. 19, 1966
TO MR. FRED SWAIN:
YOUR LETTER OF MAY 10, 1966, TO THE CORPS OF ENGINEERS, KANSAS CITY
DISTRICT, HAS BEEN FORWARDED TO THIS OFFICE AND IS CONSIDERED AN APPEAL
FROM THE SETTLEMENT OF $524, CERTIFIED FOR PAYMENT APRIL 21, 1966, ON
YOUR INITIAL CLAIM OF $3,000 AND FINAL OFFER OF $2,000 FOR DAMAGE BY A
GOVERNMENT CONTRACTOR'S USE OF YOUR LAND. YOU DID NOT ACCEPT A CHECK OF
$524 OFFERED IN PAYMENT.
RIGHT-OF-ENTRY AGREEMENTS EXECUTED MAY 12, 1961, AND APRIL 17, 1963,
PROVIDED FOR REASONABLE RESTORATION OF THE TEMPORARY WORK AREA OCCUPIED
BY THE CONTRACTOR AND DAMAGES RESULTING FROM USE. IT DOES NOT APPEAR
THAT YOU HAVE OFFERED EVIDENCE TO SUPPORT YOUR CLAIM UNDER THE
AGREEMENTS. THE CORPS OF ENGINEERS HAS REPORTED IN CONSIDERABLE DETAIL
THE FINDINGS OF THEIR CLAIM INVESTIGATION AND AN APPRAISED VALUATION OF
THE VARIOUS ITEMS OF DAMAGE.
A QUALIFIED APPRAISER FOUND THAT DAMAGES WERE INCURRED IN THE
OCCUPATION OF 2.95 ACRES. ESTIMATED LOSS OF LAND USE DURING 1962, 1963,
AND 1964, BASED ON YOUR STATEMENTS OF PRODUCTION ON THE SURROUNDING
ACREAGE, AMOUNTED TO $262, THE APPRAISAL TAKING INTO CONSIDERATION THE
VALUE OF HAY WHICH COULD HAVE BEEN PRODUCED ON THE 2.95 ACRES, LESS COST
OF PRODUCTION, AND LOSS OF PASTURE. RESTORATION OF LAND WAS APPRAISED
AT $249 AND INCLUDED COST FOR SOIL PREPARATION, FERTILIZATION, SEEDING,
AND CLEAN UP OF ROCK AND TRASH. AN ALLOWANCE OF $13 IS REPORTED FOR
INSTALLATION OF POSTS AND WIRE TO REPAIR GAPS IN A LIVING FENCE OF
MULTIFLORA ROSE WHICH WAS DAMAGED AND PREVIOUSLY COMPENSATED FOR IN THE
AMOUNT OF $15 UNDER SUPPLEMENTARY AGREEMENT OF OCTOBER 20, 1961.
PHOTOGRAPHS IN YOUR CLAIM RECORD DO NOT INDICATE DAMAGES WERE OTHERWISE
THAN REPORTED.
IN ORDER FOR YOU TO UNDERSTAND THE FUNCTION OF OUR OFFICE IN THIS
MATTER IT SHOULD BE POINTED OUT THAT WE MUST RELY UPON THE WRITTEN
RECORD SUBMITTED, AND, ABSENT CLEAR MISTAKE ON THE PART OF THE
ADMINISTRATIVE OFFICE--- IN THIS CASE THE CORPS OF ENGINEERS--- ACCEPT
THE FACTS AS ADMINISTRATIVELY REPORTED AS ACCURATE.
A COMPLETE REVIEW OF THE ENTIRE RECORD HAS BEEN MADE AND WE FIND NO
REASON TO INCREASE THE $524 SETTLEMENT OFFER. THEREFORE, ON APPEAL,
YOUR CLAIM FOR AN ADDITIONAL AMOUNT IS DENIED. A COPY OF THIS DECISION
WILL BE FURNISHED TO THE CORPS OF ENGINEERS.
B-158316, JUL. 18, 1966
TO CALIN CORP. :
REFERENCE IS MADE TO YOUR LETTER OF JUNE 18, 1966, AND PREVIOUS
CORRESPONDENCE, PROTESTING THAT PROPRIETARY RIGHTS OF YOUR COMPANY ARE
VIOLATED BY DEPARTMENT OF THE AIR FORCE REQUESTS FOR PROPOSALS (RFP)
25114NB AND 25128-NB.
BASICALLY, THE PROTEST SEEMS TO BE GROUNDED UPON THE CONTENTION THAT
IN NEGOTIATING AND PERFORMING CONTRACT AF 33/615/-2138, CALLING FOR A
FEASIBILITY STUDY OF METHODS OF SOLIDIFYING FUEL OR OILS FOR RAPID
REPAIR OF BOMB DAMAGED RUNWAYS, PROPRIETARY INFORMATION AND TRADE
SECRETS WERE DISCLOSED TO GOVERNMENT ENGINEERING PERSONNEL WITH THE
EXPECTATION THAT THE DATA WOULD BE PROTECTED AGAINST PUBLIC DISCLOSURE.
THE AIR FORCE, IN A REPORT, A COPY OF WHICH HAS BEEN FURNISHED YOU
FOR EXAMINATION AND COMMENT, HAS DENIED THAT ITS PERSONNEL RECEIVED THE
KIND OF INFORMATION ALLEGED TO HAVE BEEN FURNISHED. IT CONTENDS THAT
ANY PROPRIETARY INFORMATION AND TRADE SECRETS WERE PROTECTED THROUGH
NONDISCLOSURE TO GOVERNMENT PERSONNEL. IN THAT CONNECTION, THE AIR
FORCE POINTS OUT THAT YOUR COMPANY PROTECTED ANY SECRET IT HAD BY
AVOIDING REFERENCE TO ANY SPECIFIC COMPONENTS OF ITS COMPOUND.
MOREOVER, IN THE CONTRACT THE COMPONENTS WERE REFERRED TO IN GENERAL
TERMS AS "HIDI/CATALYSTS/RESIN SYSTEM" AND IN TEST REPORTS FURNISHED
UNDER THE CONTRACT YOU REFERRED TO THE COMPONENTS AS "A," "B," "D,"
,FOAMING AGENT," "RESIN," "HIDI RESIN-CATALYST-PETROLEUM-SYSTEM" AND
"HIDI CHEMICALS.' THE AIR
FORCE HAS STATED FURTHER THAT THE INFORMATION INCLUDED IN RFP 25114N
WAS OBTAINED FROM DATA FURNISHED BY OTHER AIR FORCE CONTRACTORS, OTHER
INFORMATION GENERALLY KNOWN TO THE TRADE, AND INDEPENDENT RESEARCH
PERFORMED BY THE AIR FORCE ENGINEERING PERSONNEL INVOLVED. MOREOVER, IT
IS STATED THAT THE AIR FORCE ENGINEERING PERSONNEL WERE FIRST APPRISED
OF THE COMPONENTS OF THE COMPOUND WHICH YOUR COMPANY HAD PREPARED UNDER
ITS CONTRACT WHEN YOUR COMPANY COMPLAINED AFTER RFP
25114NB WAS ISSUED THAT THE COMPONENTS LISTED IN THE RFP WERE THE
SAME COMPONENTS WHICH YOUR COMPANY HAD USED UNDER THE CONTRACT. THE AIR
FORCE ENGINEERING PERSONNEL INVOLVED DENY HAVING HAD ANY KNOWLEDGE OF
THE COMPONENTS YOUR COMPANY WAS USING UNTIL THAT TIME. ADDITIONALLY, IT
IS INDICATED THAT EVEN THOUGH THE COMPONENTS HAVE NOW BEEN REVEALED TO
THE AIR FORCE, THE FORMULA INVOLVED STILL REMAINS A SECRET NOT DISCLOSED
TO THE AIR FORCE.
YOU HAVE COUNTERED THAT THE COST PROPOSAL SUBMITTED BY YOUR COMPANY
WITH ITS TECHNICAL PROPOSAL FOR CONTRACT AF 33/615/-2138 FURNISHED THE
AIR FORCE KNOWLEDGE OF THE CHEMICALS INVOLVED. YOU POINT OUT ALSO THAT
YOUR COMPANY REQUESTED THE AIR FORCE TO ASSIST IT IN OBTAINING CERTAIN
CHEMICALS FROM A CHEMICAL COMPANY WHICH WAS STRIKE BOUND. FURTHER, YOU
STATE THAT THE AIR FORCE ENGINEERING PERSONNEL ATTENDED TESTS OF YOUR
COMPOUND AND TOOK NOTES AND RECEIVED ANSWERS TO QUESTIONS WHICH WOULD
HAVE FURNISHED INFORMATION AS TO THE CHEMICAL FORMULATION.
AN EXAMINATION OF THE COST PROPOSAL TO WHICH YOU REFER REVEALS THAT
IT CONTAINS THE NAMES OF THE COMPANIES WITH WHICH YOU PROPOSED TO DEAL,
BUT THERE IS NO INDICATION THEREIN AS TO WHAT SPECIFIC CHEMICALS WOULD
BE PURCHASED FROM THOSE COMPANIES. MOREOVER, THE FACT THAT THE
ENGINEERING PERSONNEL MIGHT HAVE HAD AN OPPORTUNITY TO DISCOVER THE
CHEMICAL COMPONENTS WHILE YOUR COMPANY WAS PERFORMING ITS CONTRACT DOES
NOT ESTABLISH THAT IT DID IN FACT DISCOVER THE COMPONENTS IN THAT
MANNER. AS INDICATED ABOVE, THE AIR FORCE MAINTAINS THAT THE CHEMICAL
COMPONENTS WHICH WERE REFERRED TO IN RFP 25114NB WERE IN FACT LEARNED IN
ANOTHER WAY INDEPENDENT OF ANY INFORMATION FURNISHED BY YOUR COMPANY.
IN THE BRIEF SUBMITTED WITH THE PROTEST, RELIANCE IS PLACED UPON THE
PADBLOC COMPANY, INC. V. UNITED STATES, 161 CT.CL. 369; 43 COMP. GEN.
193; 42 ID. 346; 41 ID. 148; B-154079, OCTOBER 14, 1964; AND
B-143711, DECEMBER 22, 1960. HOWEVER, THE IMMEDIATE CASE IS DIFFERENT
FROM THOSE CASES IN AN IMPORTANT RESPECT. UNLIKE THE CITED CASES, THE
INFORMATION INCLUDED IN THE RFP AS TO THE INGREDIENTS OF THE COMPOUND
WAS NOT IN FACT RECEIVED FROM YOU. IT WAS ONLY THROUGH OTHER
INDEPENDENT SOURCES THAT THE AIR FORCE ENGINEERING PERSONNEL INVOLVED
DISCOVERED THE COMPONENTS WHICH YOU HAD BEEN KEEPING SECRET.
WITH REGARD TO THE PROTEST THAT RFP 25128-NB IS ALSO AN UNAUTHORIZED
USE OF PROPRIETARY DATA, WE OBSERVE THAT IT IS AN RFP FOR THE
INVESTIGATION OF SOIL STABILIZATION TECHNIQUES WRITTEN IN TERMS
INDICATING THE END RESULT DESIRED WITHOUT DIRECTING THE MANNER OF
ACCOMPLISHMENT. WHILE YOU INDICATE THAT IN THE PERFORMANCE OF ANY
CONTRACT RESULTING FROM THAT RFP THE CONTRACTOR MIGHT VIOLATE YOUR
COMPANY'S PROPRIETARY RIGHTS, IT DOES NOT NECESSARILY FOLLOW THAT IT
WILL, AND IN ANY EVENT, IN VIEW OF THE BROAD ASPECT OF THE WORK
STATEMENT IN THE RFP SUCH PERFORMANCE COULD NOT BE CONSIDERED TO BE DUE
TO ANY DIRECTION FROM THE GOVERNMENT AND SUCH PERFORMANCE WE BELIEVE
WOULD BE A MATTER BETWEEN YOUR COMPANY AND THE CONTRACTOR.
IN VIEW OF THE FOREGOING, WE FIND NO LEGAL BASIS TO OBJECT TO THE
ISSUANCE OF THE SUBJECT INVITATIONS. YOUR PROTEST IS THEREFORE DENIED.
B-159280, JUL. 18, 1966
TO SONEX, INC. :
FURTHER REFERENCE IS MADE TO A COPY OF YOUR LETTER DATED MAY 16,
1966, PROTESTING ANY AWARD OF A CONTRACT TO GENERAL DEVICES, INC., UNDER
INVITATION FOR BIDS (IFB) NO. N00421-66-B-0088 ISSUED BY THE UNITED
STATES NAVAL AIR STATION, PATUXENT RIVER, MARYLAND, ON APRIL 12, 1966.
THE IFB COVERED THE PROCUREMENT OF SUB-CARRIER OSCILLATORS IN ACCORDANCE
WITH SPECIFICATIONS INCORPORATED THEREIN BY REFERENCE ENTITLED
"SPECIFICATIONS FOR LOW LEVEL VOLTAGE CONTROLLED SUB-CARRIER
OSCILLATORS.'
YOU CONTEND THAT THE BID SUBMITTED BY GENERAL DEVICES, INC., IS
NONRESPONSIVE FOR FAILURE TO CITE F.O.B. DESTINATION IN THEIR BID AS
REQUIRED BY SECTION 5.0 OF THE SCHEDULE ENTITLED "PLACE OF
DELIVERY.' SECTION 5.0 PROVIDES IN PERTINENT PART AS FOLLOWS: "THE
ARTICLES TO BE FURNISHED HEREUNDER SHALL BE DELIVERED ALL TRANSPORTATION
CHARGES PAID, BY THE SUPPLIER TO THE RECEIVING OFFICER, U.S. NAVAL AIR
STATION, PATUXENT RIVER, MARYLAND. * * * BIDS MUST CITE F.O.B.
DESTINATION TO BE RESPONSIVE. ANY TRANSPORTATION COSTS MAY BE ADDED TO
THE COST OF THE MATERIAL.'
PAGE ONE OF STANDARD FORM 33 SPECIFICALLY STATES,"DELIVERY F.O.B. :
U.S. NAVAL AIR STATION, PATUXENT RIVER, MARYLAND.' THIS WAS THE POINT OF
DESTINATION. NEVERTHELESS, SECTION 5.0 OF THE SCHEDULE REQUIRED THAT
PROSPECTIVE CONTRACTORS "CITE F.O.B. DESTINATION TO BE RESPONSIVE.'
GENERAL DEVICES, INC., FAILED TO SPECIFICALLY CITE THIS IN THEIR BID.
HOWEVER, UNDER THE CIRCUMSTANCES, THE FAILURE TO COMPLY WITH THIS
REQUIREMENT IS IMMATERIAL. GENERAL DEVICES, INC., IN SIGNING THEIR BID
IN COMPLIANCE WITH ALL TERMS AND CONDITIONS, OFFERED AND AGREED TO
FURNISH ANY OR ALL ITEMS UPON WHICH PRICES ARE QUOTED, AT THE PRICE SET
OPPOSITE EACH ITEM, DELIVERED AT THE DESIGNATED POINT. GENERAL DEVICES,
INC., SIGNED THEIR BID WITHOUT TAKING EXCEPTION TO THE REQUIREMENT IN
SECTION 5.0 OF THE SCHEDULE THAT ALL TRANSPORTATION CHARGES BE PAID BY
THE SUPPLIER TO THE POINT OF DESTINATION WHICH WAS STATED ON STANDARD
FORM 33 TO BE THE UNITED STATES NAVAL AIR STATION, PATUXENT RIVER,
MARYLAND. THEY THEREBY AGREED AND OBLIGATED THEMSELVES TO BEAR THE
TRANSPORTATION CHARGES TO THE STATED DESTINATION AT THEIR BID PRICE.
THIS WAS THE OBLIGATION INTENDED TO BE ASSUMED BY A PROSPECTIVE
CONTRACTOR AND WE THINK THAT THE BID SUBMITTED BY GENERAL DEVICES, INC.,
CLEARLY INDICATES THE INTENT TO BID ON AN F.O.B. DESTINATION BASIS.
IN VIEW OF THE ABOVE, WE THINK THAT THE FAILURE OF GENERAL DEVICES,
INC., TO CITE F.O.B. DESTINATION IS IMMATERIAL AND IN NO WAY
PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS. OUR OFFICE HAS HELD THAT A
DEVIATION FROM ADVERTISED REQUIREMENTS IS MATERIAL IF IT AFFECTS EITHER
THE PRICE, QUANTITY OR QUALITY OF THE ARTICLES OFFERED. SEE 30 COMP.
GEN. 179; 31 ID. 660; AND 33 ID. 421. SINCE WE HAVE DETERMINED THAT
THE FAILURE OF GENERAL DEVICES, INC., TO "CITE F.O.B. DESTINATION" IN
THEIR BID IS IMMATERIAL, IT DOES NOT RENDER THEIR BID NONRESPONSIVE.
B-159301, JUL. 15, 1966
TO MR. FREDRIC T. SUSS, ATTORNEY AT LAW:
FURTHER REFERENCE IS MADE TO YOUR LETTERS OF MAY 27, JUNE 20, 22, 24
AND 30, 1966, PROTESTING IN BEHALF OF ATLANTIC MAINTENANCE COMPANY
AGAINST ANY AWARD OF A SET-ASIDE CONTRACT TO UNITED MAINTENANCE COMPANY
UNDER INVITATION FOR BIDS NO. DSA-4-66-4707.
THE INVITATION WAS ISSUED ON APRIL 22, 1966, AND REQUESTED BIDS ON
FURNISHING JANITORIAL AND CUSTODIAL SERVICES FOR THE DEFENSE GENERAL
SUPPLY CENTER, RICHMOND, VIRGINIA, FOR THE PERIOD JULY 1, 1966, TO JUNE
30, 1967. THE PROCUREMENT WAS TOTALLY SET ASIDE FOR AWARD TO SMALL
BUSINESS. BIDS WERE SOLICITED UTILIZING SMALL BUSINESS RESTRICTED
ADVERTISING PROCEDURES IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT
REGULATION (ASPR) 1-706.5. WHEN BIDS WERE OPENED ON MAY 16, 1966, IT
WAS FOUND THAT THE LOW BIDDER, BEVERLY HILLS JANITORIAL SERVICE, WAS
NONRESPONSIVE DUE TO ITS FAILURE TO SUBMIT THE REQUIRED BID BOND WITH
ITS BID. UNITED MAINTENANCE COMPANY AND ATLANTIC MAINTENANCE COMPANY,
HEREINAFTER REFERRED TO AS UNITED AND ATLANTIC, WERE SECOND AND THIRD
LOW BIDDERS, RESPECTIVELY. BOTH CERTIFIED THEMSELVES AS SMALL BUSINESS
CONCERNS WITHIN THE CRITERIA PRESCRIBED BY THE SMALL BUSINESS
ADMINISTRATION (SBA). ATLANTIC FILED A TIMELY PROTEST ON MAY 23, 1966,
AS TO THE SMALL BUSINESS ELIGIBILITY OF UNITED. THAT PROTEST, DIRECTED
TO THE CONTRACTING OFFICER, WAS FORWARDED IN ACCORDANCE WITH ASPR 1-703,
TO THE KANSAS CITY REGIONAL OFFICE OF THE SBA. BY LETTER DATED JUNE 7,
1966, THAT OFFICE DETERMINED THAT UNDER NEW SIZE STANDARDS, EFFECTIVE
MAY 21, 1966 (SUBSEQUENT TO BID OPENING), UNITED QUALIFIED AS A SMALL
BUSINESS CONCERN FOR THE PURPOSE OF BIDDING ON GOVERNMENT JANITORIAL AND
CUSTODIAL CONTRACTS. THIS DETERMINATION WAS APPEALED ON BEHALF OF
ATLANTIC BY YOUR LETTER OF JUNE 13, 1966. BY YOUR LETTER DATED MAY 27,
1966, YOU HAD PROTESTED, ON BEHALF OF ATLANTIC, ANY AWARD TO UNITED
UNDER THIS INVITATION. YOUR BASIC CONTENTION APPEARS TO BE THAT UNITED
COULD NOT IN GOOD FAITH HAVE CERTIFIED ITSELF AS A SMALL BUSINESS
CONCERN FOR THE PURPOSE OF THIS PROCUREMENT BECAUSE OF PREVIOUS
DETERMINATIONS MADE BY THE SBA REGARDING ITS SIZE.
OUR CONSIDERATION OF THE QUESTION OF GOOD FAITH IN THE PREMISES
REQUIRES REVIEW OF THE CHRONOLOGICAL SEQUENCE OF EVENTS IN CONNECTION
WITH THE OFFICIAL DETERMINATION MADE OF THE SIZE STATUS OF UNITED
PRECEDING SUBMISSION OF ITS BID. FROM THE RECORD BEFORE US, INCLUDING
THE REPORT FROM SBA IN THE MATTER, IT IS FOUND THAT PRIOR TO MAY 21,
1966, THE SIZE STANDARD APPLICABLE TO GOVERNMENT PROCUREMENTS OF
CUSTODIAL AND JANITORIAL SERVICES WAS AVERAGE ANNUAL SALES OR RECEIPTS
FOR THE CONCERN'S PRECEDING THREE (3) FISCAL YEARS NOT EXCEEDING $1
MILLION. EFFECTIVE MAY 21, 1966, THE SIZE STANDARD APPLICABLE TO SUCH
PROCUREMENT WAS INCREASED TO $3 MILLION (31 F.R. 7375).
INITIALLY, ON NOVEMBER 12, 1965, THE SBA REGIONAL OFFICE, KANSAS
CITY, HAD DETERMINED THAT UNITED WAS NOT A SMALL BUSINESS CONCERN FOR
THE PURPOSE OF BIDDING ON A GOVERNMENT SERVICE CONTRACT FOR WHICH THE
APPLICABLE SIZE STANDARD WAS AVERAGE ANNUAL SALES OR RECEIPTS FOR THE
COMPANY'S PRECEDING THREE (3) FISCAL YEARS NOT EXCEEDING $1 MILLION,
WHICH WAS AT THAT TIME THE SMALL BUSINESS SIZE STANDARD FOR JANITORIAL
AND CUSTODIAL CONTRACTS. THE DETERMINATION THAT UNITED WAS A LARGE
BUSINESS CONCERN WAS BASED ON ITS AFFILIATION WITH OTHER FIRMS. THE
DETERMINATION WAS APPEALED TO THE SBA SIZE APPEALS BOARD ON NOVEMBER 18,
1965, AND ON JANUARY 20, 1966, THE BOARD AFFIRMED THE DETERMINATION.
HOWEVER, THE RECORD SHOWS THAT IN LATE NOVEMBER 1965, UNITED HAD
EFFECTED CHANGES IN ITS CORPORATE STRUCTURE EVIDENCING AN EFFORT TO
DISAFFILIATE ITSELF FROM THE COMPANIES AND COMPANY OFFICERS WITH WHOM IT
HAD BEEN IN CLOSE ASSOCIATION AND BECAUSE OF WHICH ASSOCIATION IT HAD
BEEN DETERMINED TO BE LARGE BUSINESS. ALSO, IN LATE NOVEMBER OR EARLY
DECEMBER 1965, THE PRESIDENT OF UNITED CONFERRED WITH THE REGIONAL
OFFICE MANAGER OF SBA AT KANSAS CITY REQUESTING ADVICE ON CHANGING THE
ORGANIZATIONAL STRUCTURE OF UNITED TO DISAFFILIATE IT FROM THOSE OTHERS
INDICATED IN SBA'S DETERMINATION OF NOVEMBER 12, 1965. AT THAT TIME, IT
IS REPORTED, THE SBA REGIONAL MANAGER STATED THAT HIS OFFICE WOULD NOT
GIVE A RULING AS TO THE CHANGES UNITED HAD MADE BUT WOULD AWAIT A
DEFINITE PROTEST FROM EITHER ANOTHER BIDDER OR A CONTRACTING OFFICER.
HOWEVER, UNITED WAS ADVISED BY SBA THAT SINCE UNITED FELT THAT ITS
CORPORATE STRUCTURE CHANGES MADE IT SMALL BUSINESS, NO REASON COULD BE
SEEN WHY IT SHOULD NOT BID AND SO SELF-CERTIFY.
WHILE THE RECORD DOES NOT SO STATE, IT IS A REASONABLE ASSUMPTION
THAT UNITED DID NOT BRING THE MATTER OF ITS CORPORATE CHANGES, EFFECTED
ABOUT NOVEMBER 24, 1965 (SUBSEQUENT TO ITS APPEAL OF NOVEMBER 18, 1965,
AND PRIOR TO THE BOARD'S DETERMINATION OF JANUARY 20, 1966), TO THE
BOARD'S ATTENTION FOR ITS CONSIDERATION IN CONNECTION WITH ITS APPEAL,
BECAUSE OF THIS ADVICE RECEIVED FROM THE KANSAS CITY REGIONAL OFFICE OF
SBA. IN ANY EVENT, IT IS CLEAR THAT THE SBA BOARD DETERMINATION OF
JANUARY 20, 1966, WAS BASED UPON AND LIMITED TO THE FACTS EXISTING ON
NOVEMBER 12, 1965, REGARDING UNITED'S SIZE STATUS.
DURING FEBRUARY OR MARCH 1966, UNITED SELF-CERTIFIED ITSELF AS A
SMALL BUSINESS CONCERN FOR THE PURPOSE OF INVITATION FOR BIDS NO.
GS-03B-12367/NEG), ISSUED BY THE GENERAL SERVICES ADMINISTRATION FOR
CUSTODIAL AND JANITORIAL SERVICES. ADVANCE BUILDING MAINTENANCE COMPANY
(ADVANCE) BY YOUR LETTER OF MARCH 25, 1966, FILED A PROTEST ALLEGING
THAT UNITED WAS NOT A SMALL BUSINESS CONCERN FOR THIS PROCUREMENT.
ON APRIL 15, 1966, APPARENTLY AS A RESULT OF ADVANCE'S PROTEST OF
UNITED'S MARCH 1966 BID ON THE GENERAL SERVICES ADMINISTRATION
INVITATION, THE KANSAS CITY REGIONAL OFFICE OF SBA DETERMINED THAT, AS A
RESULT OF CHANGES IN ITS CORPORATE STRUCTURE SUBSEQUENT TO THE NOVEMBER
12 SIZE DETERMINATION, UNITED NO LONGER WAS AFFILIATED WITH ANY OTHER
CONCERN AND, THEREFORE, WAS A SMALL BUSINESS CONCERN FOR THE PURPOSE OF
THE PROCUREMENT IN QUESTION. THE FIRMS CONSIDERED IN THE ABOVE
DETERMINATION INCLUDED THE FOLLOWING:
BUILDING MAINTENANCE CO. (
ACME MAINTENANCE CO. (
KANSAS CITY HOUSE AND WINDOW CLEANING CO. ( OWNED BY ROBERT L.
KANSAS CITY SANITARY SUPPLY CO. ( CARPENTER
MCGINNIS JANITORIAL SERVICE CO. (
QUALITY MAINTENANCE CO. ( OWNED BY CHARLES FOSTER
ADVANCE APPEALED THIS DETERMINATION TO THE SIZE BOARD.
ON MAY 13, 1966, UNITED SELF-CERTIFIED ITSELF AS A SMALL BUSINESS
CONCERN FOR THE PURPOSE OF BIDDING UNDER INVITATION NO. DSA-4-66-4707.
ON MAY 20, 1966, ATLANTIC PROTESTED THE ELIGIBILITY OF UNITED FOR THIS
PROCUREMENT. ON MAY 21, 1966, THE BOARD SUSTAINED THE APPEAL OF ADVANCE
AND DETERMINED THAT DESPITE THE CORPORATE STRUCTURE CHANGES UNITED WAS
AFFILIATED WITH ACME MAINTENANCE COMPANY, BUILDING MAINTENANCE COMPANY,
KANSAS CITY SANITARY SUPPLY COMPANY, INC., AND QUALITY MAINTENANCE
COMPANY, INC., AND WAS NOT A SMALL BUSINESS CONCERN.
ON JUNE 7, 1966, THE SBA KANSAS CITY REGIONAL OFFICE DETERMINED (1)
THAT UNITED IS AFFILIATED WITH ACME MAINTENANCE, BUILDING MAINTENANCE
COMPANY, MCGINNIS JANITORIAL SERVICE COMPANY, KANSAS CITY HOUSE AND
WINDOW CLEANING COMPANY, KANSAS CITY SANITARY SUPPLY COMPANY AND QUALITY
MAINTENANCE COMPANY; AND (2) THAT THE TOTAL AVERAGE ANNUAL SALES AND
RECEIPTS OF THE ABOVE COMPANIES FOR THEIR PRECEDING THREE FISCAL YEARS
DID NOT EXCEED $3 MILLION, THE SIZE STANDARD IN EFFECT ON JUNE 7, 1966,
FOR JANITORIAL AND CUSTODIAL SERVICES.
FROM THE FOREGOING IT APPEARS THAT UNITED IN GOOD FAITH REPRESENTED
ITSELF AS SMALL BUSINESS PRIOR TO OPENING OF BIDS (ASPR 1-703). AT THE
TIME ITS BID WAS SUBMITTED ON THE DSA INVITATION ON MAY 13, 1966, UNITED
HAD AMPLE REASON TO BELIEVE IT WAS IN FACT SMALL BUSINESS BECAUSE ON
APRIL 15, 1966, THIRTY DAYS PRIOR TO BID OPENING, THE SBA REGIONAL
OFFICE HAD DETERMINED THAT UNITED WAS SMALL BUSINESS. THIS
DETERMINATION WAS NOT REVERSED BY THE SIZE APPEALS BOARD UNTIL 5 DAYS
AFTER BID OPENING. WHILE A SERIOUS QUESTION OF GOOD FAITH MIGHT ARISE
FROM THE CIRCUMSTANCES IF, AS ALLEGED BY ATLANTIC IN ITS LETTER OF JUNE
13, 1966, UNITED HAD FAILED TO MAKE A FULL DISCLOSURE TO SBA IN
CONNECTION WITH ITS APRIL 15, 1966 DETERMINATION, THIS ALLEGATION IS NOT
ESTABLISHED BY THE FACTS. INDEED, THAT DETERMINATION WAS BASED ON THE
PREMISE THAT UNITED HAD BECOME DISAFFILIATED FROM FIRMS OWNED OR
CONTROLLED BY MESSRS. FOSTER AND CARPENTER. THERE IS NO INDICATION OR
APPARENT REQUIREMENT, EXCEPT THE BARE ALLEGATION BY ATLANTIC, THAT ANY
OTHER FIRMS SHOULD HAVE BEEN DISCLOSED, SINCE FAILING TO DISCLOSE
MCGINNIS, AS ALLEGED BY YOU, OR ANY OTHER FIRM NOT CONTROLLED BY UNITED
WOULD HAVE HAD NO EFFECT ON THE QUESTION UNDER CONSIDERATION SINCE UNDER
THE SIZE STANDARD THEN IN EFFECT, THE FIRMS OF CARPENTER, FOSTER AND
SHELTON (UNITED), IF AFFILIATED, WERE ALREADY CONCEDED TO BE LARGE
BUSINESS.
ASPR 1-703 PROVIDES, IN PERTINENT PART, AS FOLLOWS:
"1-703 DETERMINATION OF STATUS AS SMALL BUSINESS CONCERN
"/A) EXCEPT AS PROVIDED IN (B) BELOW, THE CONTRACTING OFFICER SHALL
ACCEPT AT FACE VALUE FOR THE PARTICULAR PROCUREMENT INVOLVED, A
REPRESENTATION BY THE BIDDER OR OFFEROR THAT IT IS A SMALL BUSINESS
CONCERN (SEE 1-701.1).
"/B) REPRESENTATION BY A BIDDER OR OFFEROR THAT IT IS A SMALL
BUSINESS CONCERN SHALL BE EFFECTIVE, EVEN THOUGH QUESTIONED IN
ACCORDANCE WITH THE TERMS OF THIS SUBPARAGRAPH (B), UNLESS THE SBA, IN
RESPONSE TO SUCH QUESTION AND PURSUANT TO THE PROCEDURES IN (3) BELOW,
DETERMINES THAT THE BIDDER OR OFFEROR IN QUESTION IS NOT A SMALL
BUSINESS CONCERN. THE CONTROLLING POINT IN TIME FOR A DETERMINATION
CONCERNING THE SIZE STATUS OF A QUESTIONED BIDDER OR OFFEROR SHALL BE
THE DATE OF AWARD, EXCEPT THAT NO BIDDER OR OFFEROR SHALL BE ELIGIBLE
FOR AWARD * * * UNLESS HE HAS IN GOOD FAITH REPRESENTED HIMSELF AS SMALL
BUSINESS PRIOR TO THE OPENING OF BIDS OR CLOSING DATE FOR SUBMISSION OF
OFFERS * * *.
"/3) THE SBA REGIONAL DIRECTOR WILL DETERMINE THE SMALL BUSINESS
STATUS OF THE QUESTIONED BIDDER OR OFFEROR AND NOTIFY THE CONTRACTING
OFFICER AND THE BIDDER OR OFFEROR OF HIS DETERMINATION, AND AWARD MAY BE
MADE ON THE BASIS OF THAT DETERMINATION. * * * IF AN AWARD WAS MADE
PRIOR TO THE TIME THE CONTRACTING OFFICER RECEIVES NOTICE OF THE APPEAL,
THE CONTRACT SHALL BE PRESUMED TO BE VALID AND ANY DETERMINATION
RENDERED SHALL BE CONSIDERED IN FUTURE PROCUREMENTS.
IF THE SBA REGIONAL DIRECTOR'S DETERMINATION IS NOT RECEIVED BY THE
CONTRACTING OFFICER WITHIN TEN WORKING DAYS AFTER SBA'S RECEIPT OF THE
PROTEST OR NOTICE QUESTIONING SMALL BUSINESS STATUS, IT SHALL BE
PRESUMED THAT THE QUESTIONED BIDDER OR OFFEROR IS A SMALL BUSINESS
CONCERN. * * *"
UNDER THESE REGULATIONS A CONTRACTING OFFICER IS REQUIRED TO ACCEPT A
SMALL-BUSINESS SELF-CERTIFICATION AT FACE VALUE IN THE ABSENCE OF A
TIMELY WRITTEN PROTEST BY OTHER INTERESTED BIDDERS. THE RECORD SHOWS
THAT PRIOR TO THE TIME WHEN THE SUBJECT INVITATION WAS ISSUED (APRIL 22,
1966), THE MOST RECENT SIZE DETERMINATION BY THE SBA (APRIL 15, 1966)
WAS THAT UNITED WAS A SMALL BUSINESS CONCERN FOR THE PURPOSE OF
GOVERNMENT PROCUREMENT. THE REGULATIONS DO NOT REQUIRE THAT THE
CONTRACTING OFFICER WITHHOLD AWARD PENDING A DECISION OF THE SIZE
APPEALS BOARD. B-151954, SEPTEMBER 10, 1963. WE HAVE BEEN ADVISED BY
THE DEFENSE SUPPLY AGENCY THAT AN AWARD TO UNITED WAS EFFECTED ON JUNE
28, 1966. ASPR 1-703 (B) (3).
YOU CITE SEVERAL DECISIONS OF OUR OFFICE WHICH YOU CONSIDER RELEVANT
TO THE QUESTION UNDER CONSIDERATION. AS WAS STATED IN ONE OF THE CITED
DECISIONS, 41 COMP. GEN. 47, 55,"ORDINARILY, * * * THE FINAL
DETERMINATION OF THE ELIGIBILITY OF A BIDDER AS A SMALL BUSINESS CONCERN
UNDER A SMALL-BUSINESS RESTRICTED INVITATION IS MADE AS OF THE DATE OF
AWARD.' HOWEVER, AS POINTED OUT IN THAT DECISION, WE DO NOT BELIEVE THIS
GENERAL RULE IS FOR APPLICATION UNDER CERTAIN CIRCUMSTANCES. THE
ABOVE-CITED DECISION INVOLVED ONE OF THE RECOGNIZED EXCEPTIONS TO THE
GENERAL RULE. INVOLVED WAS A SITUATION WHERE THE LOW BIDDER CERTIFIED
ITSELF AS A SMALL BUSINESS CONCERN ALTHOUGH IT WAS ON NOTICE BY THE SBA
PRIOR TO THE SUBMISSION OF ITS BID THAT ITS SIZE STATUS WAS SUBJECT TO
QUESTION. AFTER THE BIDS WERE OPENED, THE BIDDER TOOK AFFIRMATIVE
ACTION (REALIGNMENT OF ITS STOCK) FOR THE SOLE PURPOSE OF MEETING THE
SMALL BUSINESS SIZE CRITERIA, THEREBY QUALIFYING FOR AWARD. WE HELD
THAT THE AWARD TO THE BIDDER WAS NOT PROPER BECAUSE THE BIDDER HAD NOT
UTILIZED THE SELF-CERTIFICATION PROCEDURE PRUDENTLY AS REQUIRED BY THE
SMALL BUSINESS ACT AND ALSO BECAUSE THE STOCK REALIGNMENT AFTER BID
OPENING GAVE IT A SECOND CHANCE AND AN UNDUE ADVANTAGE OVER OTHER
BIDDERS.
IN A SITUATION WHERE THE SELF-CERTIFICATION WAS IN GOOD FAITH,
ALTHOUGH ERRONEOUS, AND THE BIDDER TOOK NO AFFIRMATIVE ACTION AFTER BID
OPENING TO QUALIFY ITSELF AS A SMALL BUSINESS CONCERN, BUT THERE WAS A
CHANGE IN THE BIDDER'S STATUS FROM A LARGE TO A SMALL BUSINESS CONCERN
BECAUSE OF FACTORS BEYOND ITS CONTROL, WE HELD THAT THE RULE WAS FOR
APPLICATION AND UPHELD THE WARD TO THAT BIDDER. SEE 42 COMP. GEN. 219.
THE THIRD CASE CITED BY YOU, 40 COMP. GEN. 550, INVOLVED A LOW BIDDER
WHO WAS NOT ABLE TO SELF-CERTIFY HIMSELF AS A SMALL BUSINESS CONCERN
BECAUSE OF SIZE AT THE TIME OF SUBMISSION OF A BID FOR A TOTAL SET-ASIDE
PROCUREMENT, BUT WHO, PRIOR TO AWARD, AS A RESULT OF A CHANGE IN THE
DEFINITION OF SMALL BUSINESS, BECAME A SMALL BUSINESS. WE HELD THAT THE
BIDDER HAD SUBMITTED A BID WHICH WAS NONRESPONSIVE ON ITS FACE, AND TO
PERMIT AN AWARD TO SUCH A BIDDER ON THE BASIS OF A SUBSEQUENT EVENT
CURING THE DEFICIENCY WOULD BE DETRIMENTAL TO THE EFFECTIVENESS OF THE
SMALL BUSINESS SET-ASIDE PROCEDURE AND POSSIBLY PREJUDICIAL TO THE
INTERESTS OF OTHER LARGE CONCERNS WHO DID NOT SUBMIT BIDS BUT COULD HAVE
QUALIFIED UNDER THE CHANGED DEFINITION.
IT IS READILY APPARENT FROM THE ABOVE BRIEF ANALYSIS OF THE THREE
CITED EXCEPTIONS TO THE GENERAL RULE THAT THE ONE CLOSEST IN POINT OF
FACT TO THE INSTANT CASE IS SET FORTH IN 42 COMP. GEN. 219. IN THE
INSTANT CASE UNITED MADE ITS SELF-CERTIFICATION ON THE BASIS OF A THEN
CURRENT FINDING BY SBA THAT IT WAS SMALL BUSINESS. EVEN THOUGH REVERSED
ON APPEAL, THE CHANGE IN SIZE STANDARDS, NOT THE RESULT OF ANY ACTION BY
THE BIDDER, NOW OPERATES TO AGAIN QUALIFY IT AS SMALL BUSINESS UNDER THE
NEW SIZE STANDARDS IN EFFECT ON THE DATE OF THE AWARD. OUR HOLDING IN
42 COMP. GEN. 219 WAS TO THE SAME EFFECT. ON THE BASIS OF THE RECORD
BEFORE US WE MUST CONCLUDE THAT THE SELF-CERTIFICATION BY UNITED IN THE
CIRCUMSTANCES WAS PRUDENTLY EXERCISED AND WAS SUBMITTED IN GOOD FAITH.
COMPARE 41 COMP. GEN. 47, 55 AND 40 COMP. GEN. 550.
IN VIEW OF THE FOREGOING WE FIND NO LEGAL BASIS FOR OBJECTING TO THE
AWARD TO UNITED ON JUNE 28, 1966, BY THE DEFENSE SUPPLY AGENCY UNDER THE
INVITATION CONCERNED, AND YOUR PROTEST IS DENIED.
B-159176, JUL. 14, 1966
TO LONGLIFE RUBBER PRODUCTS COMPANY:
REFERENCE IS MADE TO YOUR LETTER OF MAY 11, 1966, AND SUBSEQUENT
CORRESPONDENCE, PROTESTING AWARD OF A CONTRACT FOR ITEMS NOS. 31-47
THROUGH 31-56 OF INVITATION FOR BIDS NO. FPNFH-Y-27303-A-1-14-66 TO ACE
LITE STEP COMPANY, INC. THE LETTER STATES, IN PERTINENT PART AS
FOLLOWS:
"WE HAVE BASED OUR PROTEST ON THE FACT THAT ACE LITE STEP CO.
SUBMITTED PRICES IN A MANNER WHICH WAS IN DIRECT VIOLATION TO THE
INSTRUCTIONS; THE INTENT; THE PURPOSE AND THE MEANING OF THE
INVITATION FOR BID. THEIR DEVIATIONS FROM THE SPECIFIC INSTRUCTIONS
OF THE BID INVITATION HAS RENDERED THEIR BID NONRESPONSIVE AND AS A
NONRESPONSIVE BID, IT CANNOT BE CONSIDERED FOR AN ARD.'
THE ITEM DESCRIPTION IS AS FOLLOWS:
"MATTING; TYPE I; RUBBER, SPONGE BASE, SYNTHETIC OR RECLAIMED
CORRUGATED RUBBER TOP, IN ACCORDANCE WITH PURCHASE DESCRIPTION ZZ-3-23B
AS SET FORTH ON PAGES 56 AND 57 HEREOF. TO BE FURNISHED IN LENGTHS AS
SPECIFIED IN THE PURCHASE ORDER. MUST BE MADE AVAILABLE, AT NO
ADDITIONAL COST TO THE GOVERNMENT, IN AT LEAST BLACK AND THREE OTHER
COLORS. * * *"
IN RESPONSE TO THE INVITATION, YOU SUBMITTED BIDS AT A LINEAR YARD
PRICE FOR EACH WIDTH ON BLACK AND THREE OTHER COLORS OF MATTING.
HOWEVER, WHILE ACE BID A LINEAR YARD PRICE FOR BLACK ONLY, IT TYPED A
NOTATION ACROSS THE FACE OF THE BID FORM WHICH READ: "ADD 10 CENTS PER
SQUARE FOOT FOR COLORS OTHER THAN BLACK.'
THE FOLLOWING TABLE IS A COMPARISON OF BOTH BIDS ON THE SEVERAL ITEMS
IN QUESTION. IT CAN READILY BE SEEN THAT AFTER APPLYING THE 10-CENT
DIFFERENTIAL SET FORTH IN THE ACE BID, ITS BID WAS STILL LOW IN THE
AGGREGATE AS TO ALL ITEMS BID UPON.
CHART WIDTH LONGLIFE ACE LITE ACE
PRICE BID PRICE 10 CENTS PER ------
YD. SQ. FT.
------------ ------------ COLORS OTHER
THAN BLACK
-------------
PLUS
----
18 $ 4.08 $ 3.60 ?45 EQUALS $ 4.
24 5.40 4.80 .60 EQUALS 5
36 8.25 7.20 .90 EQUALS 8
48 10.98 9.60 1.20 EQUALS 10
72 16.50 14.40 1.80 EQUALS 16
AS STATED IN OUR DECISION CITED AT 30 COMP. GEN. 179, THE ESSENTIAL
DETERMINATION TO BE MADE IN BID DEVIATION CASES IS WHETHER THE DEVIATION
GOES TO THE SUBSTANCE OF THE BID SO AS TO AFFECT EITHER THE PRICE,
QUANTITY, OR QUALITY OF THE ARTICLES OFFERED SO THAT WAIVER OF THE
DEVIATION WOULD BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS. SEE ALSO
38 COMP. GEN. 709. THIS OFFICE HAS CONSISTENTLY HELD THAT SUCH
DEVIATIONS MAY BE WAIVED PROVIDED THEY DO NOT GO TO THE SUBSTANCE OF THE
BID OR WORK AN INJUSTICE TO OTHER BIDDERS.
IN SUPPORT OF YOUR POSITION YOU CONTEND THAT HAD YOU SUBMITTED TWO
SEPARATE BID PRICES FOR THE BLACK AND COLORED MATTING, AS DID ACE, YOUR
BID WOULD HAVE BEEN THE LOWER OF THE TWO. HOWEVER, IT IS REASONABLE TO
ASSUME THAT IN OFFERING ONE PRICE FOR ALL COLORS, YOU USED SOME SIMILAR
METHOD OF AVERAGING THE COSTS OF THE BASIC BLACK MATTING WITH THE MORE
EXPENSIVE COLORED MATTING. THE FACT THAT YOU FELT IT NECESSARY TO RAISE
THE COMBINED PRICE TO COVER AN ANTICIPATED INCREASE IN THE PURCHASE OF
COLORED MATTING WAS A DECISION SOLELY WITHIN YOUR SOUND BUSINESS
DISCRETION, AND WE DO NOT FEEL THAT YOUR AFTER-THE-FACT ALLEGATION IS
SUFFICIENT TO RAISE A PRESUMPTION OF PREJUDICE. NOTWITHSTANDING THE
FACT THAT THE ACE BID AVOIDED THE RISK OF INCREASED COLOR PURCHASES,
WHICH YOU ASSUMED, AND WAS THEREFORE CONTRARY TO THE BID ASKED FOR, WE
CAN SEE NO PREJUDICE IN THIS CASE BECAUSE IT WAS STILL THE LOWEST BID
RECEIVED. WHILE IT IS TRUE THAT THE GOVERNMENT STIPULATED A SINGLE
PRICE FOR BOTH BLACK AND COLORED MATTING IT IS NO LESS TRUE THAT THE
GOVERNMENT'S PRIMARY CONCERN ON THIS PHASE OF THE PROCUREMENT WAS TO
OBTAIN THE BEST POSSIBLE PRICE.
ACCORDINGLY, UPON CONSIDERATION OF ALL THE FACTS AND CIRCUMSTANCES IN
THIS CASE, WE BELIEVE THAT NO SUBSTANTIAL LEGAL BASES EXIST TO QUESTION
THE AWARD MADE TO ACE LITE STEP COMPANY, INC.
PURSUANT TO YOUR REQUEST, WE HEREWITH RETURN AN INVOICE WHICH YOU
SUBMITTED AS PART OF YOUR PROTEST.
B-158425, JUL. 13, 1966
TO MR. JOE N. FRAZAR:
WE REFER TO YOUR LETTER OF MAY 25, 1966, CONCERNING THE RESTORATION
OF CREDIT FOR SICK AND ANNUAL LEAVE WHICH YOU WERE REQUIRED TO USE
INCIDENT TO THE APPLICATION OF THE GENERAL SERVICES ADMINISTRATION TO
THE U.S. CIVIL SERVICE COMMISSION FOR YOUR RETIREMENT ON DISABILITY.
THE REPORT OF THE GENERAL SERVICES ADMINISTRATION TO WHICH WE
REFERRED IN OUR LETTER OF JUNE 8, 1966, TO YOU, HAS BEEN RECEIVED AND WE
HAVE BEEN INFORMED BY THAT AGENCY, IN PERTINENT PART, AS FOLLOWS:
"THE ISSUANCE OF A GSA ORDER IN JUNE 1963 REALIGNING THE ORGANIZATION
AND FUNCTIONS OF PUBLIC BUILDINGS SERVICE FIELD OFFICES SUBSTANTIALLY
CHANGED THE DUTIES AND INCREASED THE PHYSICAL REQUIREMENTS OF AFFECTED
BUILDINGS MANAGER POSITIONS. BUILDING INSPECTION WORK INVOLVING THE
CLIMBING OF VERTICAL LADDERS AND REPEATED TRAVEL REQUIRING THE OPERATION
OF PRIVATE OR GOVERNMENT MOTOR VEHICLES WAS DELEGATED TO THE INCUMBENT
MANAGERS OF THE FIELD OFFICES. BUILDINGS MANAGERS OF KNOWN PHYSICAL
LIMITATIONS WERE ASKED TO SUBMIT TO PHYSICAL EXAMINATIONS TO DETERMINE
THEIR PHYSICAL FITNESS TO PERFORM THE JOB AND TO OPERATE MOTOR VEHICLES.
MR. FRAZAR WAS ONE OF FIVE SUCH CASES IN REGION 7.
"IT WAS ON THE BASIS OF A REPORT FURNISHED BY THE MEDICAL FACILITY OF
MR. FRAZAR'S CHOICE, THE SKINNER CLINIC, 124 DALLAS STREET, SAN ANTONIO,
TEXAS, THAT THE DECISION WAS REACHED BY REGIONAL OFFICIALS TO PLACE HIM
ON LEAVE AND RECOMMEND HIS DISABILITY RETIREMENT. AS YOU KNOW, THE
BUREAU OF RETIREMENT AND INSURANCE, CIVIL SERVICE COMMISSION, INITIALLY
FOUND THAT MR. FRAZAR WAS TOTALLY DISABLED FOR SERVICE IN HIS POSITION;
HOWEVER, THIS FINDING WAS SUBSEQUENTLY REVERSED WHEN MR. FRAZAR
APPEALED AND SUBMITTED ADDITIONAL EVIDENCE.'
IT WILL BE OBSERVED FROM THE FOREGOING THAT THE ACTION OF THE
PERSONNEL OFFICER IN PLACING YOU ON LEAVE WAS PREDICATED UPON THE
MEDICAL REPORT OF YOUR PHYSICAL EXAMINATION WHICH WE UNDERSTOOD WAS
CONDUCTED BY A MEDICAL CLINIC OF YOUR CHOICE. FURTHER, THE REGIONAL
OFFICE OF THE CIVIL SERVICE COMMISSION CONCURRED IN THE FINDING THAT YOU
WERE DISABLED FROM THE PERFORMANCE OF THE DUTIES OF YOUR POSITION AND IT
WAS ONLY AFTER YOU HAD APPEALED THAT FINDING AND THE INTRODUCTION OF NEW
EVIDENCE THAT THE FINDING OF YOUR DISABILITY WAS REVERSED.
IN THE CIRCUMSTANCES IT CANNOT BE SAID THAT THE ACTION OF THE
PERSONNEL OFFICER IN PLACING YOU ON LEAVE WAS CONTRARY TO THE EVIDENCE
THEN AVAILABLE OR THAT SUCH ACTION WAS ARBITRARY OR CAPRICIOUS.
IN OUR LETTER OF FEBRUARY 8, 1966, B-158425, TO THE HONORABLE HENRY
B. GONZALEZ, HOUSE OF REPRESENTATIVES, A COPY OF WHICH WE ASSUMED WAS
FURNISHED YOU, WE POINTED OUT THAT IN CASES SIMILAR TO YOURS WE
CONSISTENTLY HAVE RULED THAT ADMINISTRATIVE ACTIONS PLACING AN EMPLOYEE
ON LEAVE BECAUSE OF MEDICALLY REPORTED DISABILITY ARE NOT SO ARBITRARY
OR CAPRICIOUS AS TO WARRANT ALLOWANCE OF BACK PAY UNDER 5 U.S.C. 652, OR
THE RESTORATION OF LEAVE, NOTWITHSTANDING A FINDING BY THE CIVIL SERVICE
COMMISSION, AT A LATER DATE, THAT AN EMPLOYEE IS NOT DISABLED WITHIN THE
PURVIEW OF THE RETIREMENT ACT.
THEREFORE, WE MUST CONCLUDE THAT YOU ARE NOT ENTITLED TO THE
RESTORATION OF LEAVE USED DURING THE PENDENCY OF YOUR AGENCY'S
APPLICATION FOR DISABILITY RETIREMENT BEFORE THE CIVIL SERVICE
COMMISSION.
B-159194, JUL. 13, 1966
TO ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:
WE REFER TO LETTER DATED JUNE 20, 1966, FROM YOUR GENERAL COUNSEL,
RELATIVE TO THE REQUEST OF MR. SAM F. HAMRA, JR., 1988B SOUTH GLENSTONE
AVENUE, SPRINGFIELD, MISSOURI, THAT HIS CLIENT, THE MARTINOUS MATTRESS
COMPANY, BE RELIEVED OF ITS OBLIGATION UNDER CONTRACT NO. GS-06S-9270,
ON THE GROUNDS THAT CERTAIN INSTRUCTIONS GIVEN THE CONTRACTOR WERE
CONTRARY TO THE TERMS OF THE CONTRACT.
THE SUBJECT CONTRACT WHICH PROVIDED FOR MATTRESS REHABILITATION AND
CLEANING AT FORT LEONARD WOOD AND WHITEMAN AIR FORCE BASE WAS AWARDED ON
DECEMBER 3, 1965, AND CONTAINED THE FOLLOWING STATEMENT UNDER THE
SECTION ENTITLED SPECIFICATIONS:
"TYPE I SERVICE. PER MILITARY STANDARD 653A, DATED MARCH 2, 1960.
"MATTRESSES SHALL BE SURFACE CLEANED, STERILIZED AND REPAIRED BY THE
CONTRACTOR EITHER AT THE SITE OF USE (CAMP) BY A MOBILE CLEANING UNIT OR
AT THE CONTRACTOR'S PLANT.'
ITEM NO. 24 OF THE CONTRACT PROVISIONS PROVIDED THAT,"SUCCESSFUL
BIDDERS SHALL BE REQUIRED TO PROVIDE PICKUP AND DELIVERY SERVICES, OR
PERFORM WORK AT SITE (CAMP) * * *.'
MARTINOUS INTERPRETED THESE PROVISIONS TO MEAN THAT THE MATTRESSES
COULD BE CLEANED AND REPAIRED EITHER AT ITS PLANT, OR IN THE FIELD, AND
THAT THE CHOICE WOULD BE ENTIRELY THEIRS. ITS LOW BID WAS ACCORDINGLY
PREDICATED UPON BEING ABLE TO PROVIDE THE SERVICE AT THE SITE OF USE.
HOWEVER, ON FEBRUARY 2, 1966, MARTINOUS WAS INFORMED THAT THE SERVICES
WOULD HAVE TO BE PERFORMED AT ITS PLANT.
THE FIRST OF THE ABOVE-QUOTED PROVISIONS MUST BE INTERPRETED TO MEAN
THAT THE CONTRACTOR HAD A CHOICE OF PERFORMANCE SITES, AND THAT THE
ELECTION WAS HIS, BUT THE LANGUAGE OF THE SECOND PROVISION MAY BE
REASONABLY CONSTRUED TO MEAN THAT THE GOVERNMENT RESERVED THE RIGHT TO
MAKE THAT CHOICE ITSELF.
THE LAW APPEARS TO BE WELL ESTABLISHED THAT ANY AMBIGUITY IN A
CONTRACT IS TO BE CONSTRUED AGAINST THE PARTY WHO CREATED THE AMBIGUITY.
WILLISTON, CONTRACTS, SECTIONS 37 AND 621; WUNDERLICH CONTRACTING
COMPANY V. UNITED STATES, 143 CT.CL. 876; AND 16 COMP. GEN. 569. AS
SUGGESTED IN THE LETTER OF JUNE 20, 1966, IF THE CONTRACT REMAINS IN
EXISTENCE THE AMBIGUITY WILL BE CONSTRUED AGAINST THE GOVERNMENT, AND
THE CONTRACTOR MUST BE ALLOWED TO PERFORM AT THE SITE OF USE. HOWEVER,
THIS WOULD ULTIMATELY LEAD TO A BREACH OF THE CONTRACT BY THE GOVERNMENT
BECAUSE, AS STATED IN THAT LETTER,"AT THE PRESENT TIME, THERE ARE NO
FACILITIES AVAILABLE EITHER AT FORT LEONARD WOOD OR WHITEMAN AIR FORCE
BASE FOR PERFORMANCE OF THE REQUIRED SERVICES.'
WE THEREFORE CONCUR IN THE GENERAL COUNSEL'S RECOMMENDATION THAT IT
WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT TO ACCEPT MR. HAMRA'S
OFFER OF A MUTUAL NO-COST CANCELLATION OF THE CONTRACT.
B-147096, JUL. 12, 1966
TO EMERY, SELLS AND WOOD, ATTORNEYS:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 2, 1966, ENCLOSING A
COPY OF DECISION OF OCTOBER 12, 1965, B-147096, ADDRESSED TO LIEUTENANT
COLONEL J. J. VANYA, U.S. AIR FORCE, ACCOUNTING AND FINANCE DIVISION,
CONCERNING THE ERRONEOUS PAYMENT OF RETIRED PAY MADE ON JANUARY 8, 1965,
TO CAPTAIN JOHN M. BARNES, U.S. AIR FORCE, RETIRED, FOR THE PERIOD
AUGUST 21, 1946, TO NOVEMBER 7, 1953, INCLUSIVE. ALSO RECEIVED AS AN
ENCLOSURE WITH YOUR LETTER WAS A COPY OF HEADQUARTERS AIR FORCE
ACCOUNTING AND FINANCE CENTER LETTER OF MAY 23, 1966, ADVISING CAPTAIN
BARNES OF THE OVERPAYMENT.
IN A MEMORANDUM DATED MAY 21, 1964, THE UNDER SECRETARY OF THE AIR
FORCE DIRECTED THAT:
"HAVING RECEIVED AND APPROVED THE RECOMMENDATIONS OF THE AIR FORCE
BOARD FOR THE CORRECTION OF MILITARY RECORDS AND UNDER AUTHORITY OF
SECTION 1552, TITLE 10, UNITED STATES CODE (70A STAT 116), IT IS
DIRECTED THAT:
"1. THE PERTINENT MILITARY RECORDS OF THE DEPARTMENT OF THE AIR
FORCE, RELATING TO JOHN M. BARNES, AO 311 077 BE CORRECTED TO SHOW THAT
ON 20 AUGUST 1946, HE WAS INCAPACITATED FOR ACTIVE MILITARY SERVICE BY
REASON OF HEPATITIS, CHRONIC, MODERATELY SEVERE; THAT THE DISABILITY
WAS PERMANENT AND WAS THE RESULT OF AN INCIDENT OF SERVICE, HAVING BEEN
SUFFERED IN THE LINE OF DUTY FROM DISEASE OR INJURY WHILE EMPLOYED ON
ACTIVE DUTY SUBSEQUENT TO 19 DECEMBER 1940.
"2. ALL NECESSARY AND APPROPRIATE ACTION BE TAKEN IN CONSONANCE WITH
THIS DIRECTIVE.'
IN ADDITION, COLONEL VANYA ADVISED THIS OFFICE AS FOLLOWS:
"4. ON 21 MAY 1964, THE SECRETARY OF THE AIR FORCE CORRECTED THIS
OFFICER'S MILITARY RECORDS TO SHOW THAT HE WAS NOT RETIRED 31 AUGUST
1963 UNDER THE PROVISION OF SECTION 1331, TITLE 10, U.S. CODE, BUT THAT
HE WAS PLACED ON THE DISABILITY RETIRED LIST 20 AUGUST 1946 UNDER
SECTION 5, ACT OF 3 APRIL 1939, AS AMENDED (PL 18, 76TH CONGRESS).'
IN DECISION OF OCTOBER 12, 1965, B-147096, THIS OFFICE POINTED OUT
THAT THE COURT OF CLAIMS ON DECEMBER 13, 1963, HAD FOUND IN FAVOR OF
CAPTAIN BARNES (SEE BARNES V. UNITED STATES, 163 CT.CL. 321) ON HIS
SUIT FOR "* * * RETIRED PAY FOR THE PERIOD COMMENCING AUGUST 21, 1946,
AND EXTENDING TO SUCH TIME AS THE COURT MAY ENTER JUDGMENT HEREIN * *
*.' SEE PARAGRAPH XVII, COURT OF CLAIMS POSITION NO. 330-61, FILED
AUGUST 18, 1961. THE COURT ENTERED A MONEY JUDGMENT ON MAY 18, 1964,
COVERING THE PERIOD AUGUST 1, 1955, TO DECEMBER 13, 1963, INCLUSIVE,
THEREBY GIVING DUE EFFECT TO THE PROVISIONS OF 28 U.S.C. 2501, WHICH
BARRED THE COURT FROM JURISDICTION IN THE AWARD OF RETIRED
PAY AS TO ANY PART OF THE PERIOD PRECEDING THE MONTH OF AUGUST 1955.
IT WAS ALSO POINTED OUT IN THE DECISION OF OCTOBER 12, 1965, THAT THE
COURT OF CLAIMS HAD FOUND EVERY ELEMENT OF FACT AND LAW REQUIRED TO
ESTABLISH THAT CAPTAIN BARNES SHOULD HAVE RECEIVED DISABILITY RETIREMENT
PAY EFFECTIVE FROM AUGUST 21, 1946, THE DATE OF HIS RELEASE TO INACTIVE
DUTY; THAT THE CORRECTION OF CAPTAIN BARNES' MILITARY RECORDS ON MAY
21, 1964, DID NOT CHANGE ANY BASIC FACT CONCERNING HIS MILITARY
DISABILITY RETIRED STATUS AND THAT THE PLACEMENT OF HIS NAME ON THE
DISABILITY RETIRED LIST AS OF AUGUST 20, 1946, DID NOT HAVE ANY LEGAL
EFFECT ON HIS RIGHT, ALREADY JUDICIALLY ESTABLISHED BY THE DECISION OF
DECEMBER 13, 1963, TO RECEIVE DISABILITY RETIREMENT PAY EFFECTIVE FROM
AUGUST 21, 1946, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5, ACT OF
APRIL 3, 1939, CH. 35, 53 STAT. 557, AS AMENDED, 10 U.S.C. 456, 1946
ED. COMPARE 32 COMP. GEN. 242, 247.
THUS, IT WAS CONCLUDED IN THE DECISION OF OCTOBER 12, 1965, THAT
UNDER THE RULE OF HAISLIP V. UNITED STATES, 152 CT.CL. 339, DECIDED
JANUARY 18, 1961, CAPTAIN BARNES ACQUIRED NO RIGHT TO DISABILITY
RETIREMENT PAY AS A RESULT OF THE APPROVED CORRECTION BOARD ACTION OF
MAY 21, 1964, WHICH HE HAD NOT HAD SINCE IN OR AROUND APRIL 1944; THAT
UNDER THE HOLDING OF THE COURT OF CLAIMS IN THE DECISION OF DECEMBER 13,
1963, HE HAD BEEN ENTITLED ALL ALONG UNDER APPLICABLE PROVISIONS OF LAW
AND WITHOUT ANY CHANGE NEEDED IN HIS MILITARY RECORDS TO RECEIVE THE
DISABILITY RETIREMENT PAY CLAIMED BY HIM FROM THE TIME SUCH PAY HAD BEEN
WRONGFULLY WITHHELD FROM HIM; THAT THE FACTS CONCERNING HIS DISABILITY
RETIRED STATUS WERE THE SAME AFTER THE CORRECTION BOARD ACTION ON MAY
21, 1964, AS THEY HAD BEEN SINCE APRIL 1944; AND THAT ON THE BASIS OF
THE FINDINGS OF THE COURT IN THE DECISION OF DECEMBER 13, 1963, HE COULD
HAVE BROUGHT SUIT AT ANY TIME ON AND AFTER AUGUST 21, 1946, AND HAVING
FAILED TO DO SO UNTIL THE FILING OF COURT OF CLAIMS PETITION NO. 330-61,
ON AUGUST 18, 1961, HE WAS SUBJECT TO THE PERIOD OF LIMITATION
PRESCRIBED IN 28 U.S.C. 2501 ON HIS COURT OF CLAIMS ACTION AND TO THE
10-YEAR PERIOD PRESCRIBED IN 31 U.S.C. 71A ON THE CLAIM RECEIVED IN THIS
OFFICE NOVEMBER 8, 1963. AS A CONSEQUENCE, IT WAS HELD THAT THE
CORRECTION BOARD ACTION OF
MAY 21, 1964, FURNISHED NO LEGAL BASIS FOR THE PAYMENT TO CAPTAIN
BARNES OF DISABILITY RETIREMENT PAY FOR THE PERIOD AUGUST 21, 1946, TO
NOVEMBER 7, 1953, INCLUSIVE.
YOUR REQUEST FOR RECONSIDERATION OF THE ACTION TAKEN BY THIS OFFICE
IN THE DECISION OF OCTOBER 12, 1965, REFERS FIRST TO THE DECISION
RENDERED JULY 16, 1965, BY THE COURT OF CLAIMS IN OLESON V. UNITED
STATES, CT.CL. NO. 376-64, IN WHICH THE COURT ADOPTED THE VIEW THAT
WHILE THE CORRECTION BOARD ACTION IN OLESON'S CASE LEGALLY HAD PRODUCED
NOTHING ON WHICH THE COURT COULD HAVE AWARDED A MONEY JUDGMENT TO OLESON
DIRECTLY--- SEE THE HAISLIP DECISION--- SUCH CORRECTION BOARD ACTION
NEVERTHELESS HAD INITIATED A VALID CLAIM WHICH COULD BE PAID
ADMINISTRATIVELY. THE OLESON DECISION THUS SEEMS TO SAY THAT WHILE THE
COURT WOULD NOT AID IN THE FIRST INSTANCE A LITIGANT WHO HAS SUCH A
CLAIM AGAINST THE GOVERNMENT, IT WILL NEVERTHELESS AWARD JUDGMENT FOR
THE AMOUNT PAID ADMINISTRATIVELY IF SUCH AMOUNT LATER IS COLLECTED BY
DEDUCTIONS FROM THE MEMBER'S RETIRED PAY. THE STATEMENT MADE BY THE
COURT IN THE OLESON CASE THAT THE CORRECTION OF RECORDS PAYMENT THEREIN
UNDER CONSIDERATION WAS FINAL AND CONCLUSIVE ON THE GENERAL ACCOUNTING
OFFICE IS IN DIRECT CONFLICT WITH THE LEGISLATIVE HISTORY OF THE
STATUTORY PROVISIONS INVOLVED WHICH ARE NOW CODIFIED IN 10 U.S.C. 1552.
SINCE SUCH LEGISLATIVE HISTORY IS SO CLEAR AS NOT TO ADMIT OF
DIFFERENCES OF OPINION AS TO THIS MATTER, WE HAVE DECIDED NOT TO FOLLOW
THE OLESON CASE. SEE DECISION OF MARCH 3, 1966, B-130839.
IN ADDITION, YOU SUGGEST THAT THE CORRECTION BOARD ACTION OF MAY 21,
1964, DID MAKE AN ACTUAL CHANGE OF A BASIC FACT IN CAPTAIN BARNES'
MILITARY RECORDS. THIS WAS ACCOMPLISHED, YOU STATE, BY CORRECTING
CAPTAIN BARNES' MILITARY RECORDS TO SHOW THAT ON AUGUST 20, 1946, HE WAS
INCAPACITATED FOR ACTIVE MILITARY SERVICE, THAT HIS DISABILITY WAS
PERMANENT AND THE RESULT OF AN INCIDENT OF HIS SERVICE INCURRED IN LINE
OF DUTY FROM DISEASE OR INJURY WHILE EMPLOYED ON ACTIVE DUTY SUBSEQUENT
TO DECEMBER 19, 1940. ALSO, YOU POINT OUT THAT THE SECRETARY OF THE AIR
FORCE CORRECTED CAPTAIN BARNES' MILITARY RECORDS TO SHOW THAT HE WAS NOT
RETIRED AUGUST 31, 1963, IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C.
1331,"* * * BUT THAT HE WAS PLACED ON THE DISABILITY RETIRED LIST 20
AUGUST 1946 UNDER SECTION 5, ACT OF 3 APRIL 1939, AS AMENDED * * *.' YOU
ASSERT THAT AS A CONSEQUENCE OF THE CORRECTION BOARD ACTION CAPTAIN
BARNES' RIGHTS TO RECEIVE DISABILITY RETIREMENT PAY:
"* * * NOW FLOW, NOT FROM HIS 1944 RETIRING BOARD ACTION AND
SUBSEQUENT ADMINISTRATIVE ACTION RETAINING HIM ON ACTIVE DUTY
UNLAWFULLY, AS COMPTROLLER GENERAL'S DECISION B-147096 SEEMS IMPLICITLY
TO HOLD, BUT FROM THE SECRETARY'S MAY 21, 1964, DIRECTIVE CHANGING HIS
MILITARY RECORD TO REFLECT THAT, AT THE TIME OF HIS SEPARATION FROM
ACTIVE MILITARY SERVICE AUGUST 20, 1946, HE WAS PERMANENTLY
INCAPACITATED FOR ACTIVE MILITARY SERVICE BY REASON OF PHYSICAL
DISABILITY INCURRED IN LINE OF DUTY AND INCIDENT TO HIS EXTENDED ACTIVE
SERVICE BETWEEN 1940 AND 1946.'
THE COURT OF CLAIMS HELD IN THE DECISION OF DECEMBER 13, 1963, THAT
CAPTAIN BARNES HAD BEEN ENTITLED "* * * TO COLLECT DISABILITY RETIREMENT
PAY FROM THE TIME (IN OR AROUND APRIL 1944) OF THE RELEASE DUE HIM UNDER
THE WAR DEPARTMENT MEMORANDUM.' THE COURT CITED FRIEDMAN V. UNITED
STATES, 159 CT.CL. 1 (1962), AFTER STATING:
"IN THE INSTANT CASE PLAINTIFF (BARNES) WAS RELEASED FROM SERVICE AS
A MATTER OF LAW, AND WAS ENTITLED TO DISABILITY RETIREMENT PAY IN OR
AROUND APRIL, 1944. CONTRARY TO HIS LAWFUL RIGHT HE WAS RETAINED ON A
LIMITED SERVICE STATUS FOR ANOTHER TWO YEARS. BUT HIS RIGHT TO THE
DISABILITY RETIREMENT PAY HAD NOW PASSED BEYOND "THOSE OTHER CLAIMS
DEPENDENT ON PRIOR ADMINISTRATIVE EVALUATION," AND HAD BECOME A CLAIM
"INDEPENDENT OF ADMINISTRATIVE DETERMINATION.' "
SINCE IT HAS BEEN JUDICIALLY ESTABLISHED THAT CAPTAIN BARNES WAS
LEGALLY ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY ON AND AFTER
AUGUST 21, 1946, IT SEEMS SELF-EVIDENT THAT THE CHANGES MADE IN HIS
MILITARY RECORDS BY THE CORRECTION BOARD ACTION OF MAY 21, 1964, (1) TO
SHOW THAT ON AUGUST 20, 1946, HE WAS INCAPACITATED FOR ACTIVE MILITARY
SERVICE, ETC., AND (2) TO SHOW THAT HE WAS NOT RETIRED AUGUST 31, 1963,
UNDER THE PROVISIONS OF 10 U.S.C. 1331 BUT INSTEAD THAT HE HAD BEEN
PLACED ON THE DISABILITY RETIRED LIST AUGUST 20, 1946, UNDER AUTHORITY
OF SECTION 5 OF THE ACT OF APRIL 3, 1939, SUPRA, DID NOT HAVE ANY EFFECT
ON HIS DISABILITY RETIREMENT PAY STATUS. WHILE HIS MILITARY RECORDS MAY
HAVE BEEN CHANGED BY SHOWING HIS PLACEMENT ON THE DISABILITY RETIRED
LIST ON AUGUST 20, 1946, IN LIEU OF HIS RETIREMENT AUGUST 31, 1963, THE
CORRECTION ACTION ACTUALLY WAS REPETITIOUS IN NATURE IN THAT NO NEW
RELEVANT FACT WAS PRODUCED BEARING ON HIS RIGHT TO RECEIVE RETIREMENT
PAY ON AND AFTER AUGUST 21, 1946. SUCH ACTION PROPERLY MAY NOT BE
CONSIDERED AS HAVING CREATED A NEW AND SEPARATE LEGAL RIGHT TO RECEIVE
DISABILITY RETIREMENT PAY. THE COURT HAD ALREADY DETERMINED HIS RIGHTS
WITH RESPECT TO RETIREMENT PAY FROM AUGUST 21, 1946, AND WOULD HAVE
AWARDED HIM SUCH PAY FROM THAT DATE BUT FOR THE PROVISIONS OF 28 U.S.C.
2501.
THE COURT OF CLAIMS DECISION OF DECEMBER 13, 1963, CLEARLY
ESTABLISHES THAT UNDER THE FACTS AND APPLICABLE PROVISIONS OF LAW NO
ADMINISTRATIVE ACTION OR ANY CHANGE IN CAPTAIN BARNES' MILITARY RECORDS
WAS NECESSARY TO ACCRUE HIS RIGHT TO THE DISABILITY RETIREMENT PAY DUE
HIM FROM AUGUST 21, 1946. SEE NOTE 4 IN KUTZ V. UNITED STATES, 168
CT.CL. 68 (1964), CITING THE BARNES DECISION OF DECEMBER 13, 1963. THE
CORRECTION BOARD ACTION OF MAY 21, 1964, LEFT CAPTAIN BARNES IN EXACTLY
THE SAME SITUATION, INSOFAR AS HIS DISABILITY RETIREMENT PAY STATUS WAS
CONCERNED, THAT PREVAILED PRIOR THERETO.
ACCORDINGLY, WE ADHERE TO THE CONCLUSIONS REACHED IN THE DECISION OF
OCTOBER 12, 1965.
B-150338, JUL. 12, 1966
TO COMMANDING OFFICER, NAVAL SUPPLY CENTER:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 28, 1966, REFERENCE
10A24:AP, CONCERNING THE PAYMENTS TO PETER ADAMS ET AL., NAVAL SUPPLY
CENTER, NORFOLK, VIRGINIA 23512, FOR OVERTIME SERVICES RENDERED DURING
THE PERIOD JULY 7, 1954 TO JULY 28, 1955.
IN OUR LETTERS TO YOU OF OCTOBER 4, 1965 AND MAY 23, 1966, WE
UNDERSTOOD THAT THE WRITTEN DIRECTIVE OF JULY 28, 1955, WAS APPLICABLE
TO BOTH THE NAVAL STATION AND THE NAVAL SUPPLY CENTER AND WAS THE
INITIAL RECOGNITION OF THE OVERTIME SITUATION BY OFFICERS WHO MIGHT
PROPERLY AUTHORIZE OR APPROVE PAYMENT OF OVERTIME COMPENSATION. SEE
BILELLO ET AL. V. UNITED STATES, CT.CL. NO. 198-63, DECIDED MARCH 18,
1966, AND THE CASES CITED THEREIN.
WHILE WE ACCEPT THE STATEMENT OF MR. J. C. BARNES AS BEING FACTUALLY
CORRECT, IT IS NOT ENTIRELY CLEAR THAT HE WAS EMPOWERED TO AUTHORIZE OR
APPROVE ALLOWANCE OF OVERTIME COMPENSATION AND THEREBY OBLIGATE THE
DEPARTMENT OF THE NAVY. ON THE OTHER HAND, SINCE HE WAS THE SENIOR
CIVILIAN IN CHARGE OF THE NAVAL SUPPLY CENTER GUARD FORCE DURING THE
PERIOD IN QUESTION, OUR OFFICE WILL INTERPOSE NO OBJECTION TO OTHERWISE
PROPER OVERTIME PAYMENTS FOR THE PERIOD JULY 9, 1954 TO JULY 28, 1955,
TO MR. ADAMS.
WE SHOULD POINT OUT THAT CLAIMS FOR THE AMOUNTS HERE INVOLVED WERE
FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON JULY 9, 1964, AND,
THEREFORE, ARE SUBJECT TO THE LIMITATION IN 31 U.S.C. 71A.
B-158991, JUL. 12, 1966
TO FEEDBACK SYSTEMS, INCORPORATED:
WE REFER TO YOUR LETTER OF APRIL 11, 1966, WITH ENCLOSURES, TO
CONGRESSMAN RICHARD SCHWEIKER, PROTESTING THE CANCELLATION, AFTER BID
OPENING, OF INVITATION FOR BIDS NO. CC-426-6, ISSUED BY THE JOHN F.
KENNEDY SPACE CENTER (KSC).
ITEM 1 ON PAGE 3 OF THE IFB WAS FOR A MOBILE PNEUMATIC CONSOLE (NEAR
0 PSIA TO 10,000 PSIG); ITEM 2 WAS FOR A HIGH PRESSURE PNEUMATIC
CONSOLE, (20,000 PSIG MAXIMUM) AND ITEM 3 WAS FOR AN INSPECTION PLAN.
PAGE 12 OF THE IFB PROVIDED:
"GROUPING FOR AGGREGATE AWARD
BIDS WILL BE EVALUATED AND AWARD WILL BE MADE ON THE BASIS OF THE
LOWEST AGGREGATE BID FOR ITEMS 1, 2 AND 3.'
BIDS WERE OPENED ON JANUARY 28, 1966, AND EIGHT BIDS WERE RECEIVED.
SEVEN BIDS WERE SUBMITTED BY SMALL BUSINESS SOURCES AND ONE BID WAS
SUBMITTED BY A LARGE BUSINESS CONCERN. THE PRICES QUOTED IN YOUR BID
WHICH WAS LOW AND THE PRICES QUOTED IN THE SECOND LOW BID WERE AS
FOLLOWS:
CHART
BIDDER ITEM 1 ITEM 2 ITEM 3
FEEDBACK SYSTEMS $12,604 $14,457 (*)
VALUMETRICS $14,550 $16,350 N/A
(*) PRICE INCLUDED IN ITEMS 1 AND 2.
THE OTHER BIDS RANGED FROM $40,000 TO $85,674. THE RANGE OF PRICES
IN THE OTHER BIDS FOR ITEM 2 WAS FROM $19,455 TO $44,784.35.
ON APRIL 7, 1966, KSC NOTIFIED BIDDERS THAT THE INSTANT IFB WAS BEING
CANCELLED BECAUSE OF INADEQUATE SPECIFICATIONS. YOU HAVE QUESTIONED
WHETHER THE CANCELLATION OF THIS IFB WAS JUSTIFIED. YOU ARE
PARTICULARLY INTERESTED IN ASCERTAINING IF FAVORITISM TO ANOTHER BIDDER
MAY HAVE INFLUENCED KSC'S DECISION TO CANCEL THE IFB. YOUR LETTER OF
APRIL 11, 1966, BRINGS TO OUR ATTENTION YOUR OBJECTION TO THE TELEPHONIC
REQUEST BY KSC ON FEBRUARY 15, 1966, FOR DESCRIPTIVE DATA. ALSO, YOUR
LETTER BRINGS TO OUR ATTENTION THAT THE PROCURING ACTIVITY NOTIFIED YOU
ON MARCH 31, 1966, THAT YOUR TECHNICAL DATA WAS "GOOD" AND THAT YOU
WOULD RECEIVE AN AWARD WITHIN A WEEK OR TWO AFTER CERTAIN FUNDING
PROBLEMS HAD BEEN RESOLVED. YOU INQUIRE WHY YOUR LETTER OF MARCH 28,
1966, TO KSC, REQUESTING INFORMATION REGARDING THE STATUS OF THIS
PROCUREMENT, WAS NOT ANSWERED.
ITEM 2 OF THE IFB WAS INCLUDED PURSUANT TO PURCHASE REQUEST NO.
53083603. ON MARCH 8, 1966, THE ASSISTANT DIRECTOR FOR SUPPORT
OPERATIONS AT KSC ISSUED A MEMORANDUM ADVISING THAT THE CONDITIONAL
ALLOCATION OF FUNDS MADE ON DECEMBER 22, 1965, FOR EQUIPMENT, SUPPLIES
AND MATERIALS, WAS BEING REVISED AND THAT THE ALLOCATION OF FUNDS FOR
THESE ITEMS WOULD BE ADJUSTED DOWNWARD BY ABOUT ONE MILLION DOLLARS.
THE REASON FOR THIS DOWNWARD ADJUSTMENT WAS TO CONSERVE FISCAL YEAR 1966
FUNDS. THIS MEMORANDUM REQUESTED THAT LISTS OF PURCHASE REQUESTS FOR
EQUIPMENT, SUPPLIES OR MATERIALS BE PREPARED IN THOSE SITUATIONS WHERE
THE PROCUREMENT HAD BEEN INITIATED BUT THE FUNDS HAD NOT BEEN OBLIGATED.
THE PURCHASE REQUEST FOR ITEM 2 OF THE INSTANT PROCUREMENT WAS LISTED
AS A PURCHASE REQUEST FOR WHICH THE FUNDS COULD BE DECOMMITTED. THE
REASON GIVEN WAS THAT THIS PROCUREMENT WAS ONE OF THE PROCUREMENTS THAT
WAS LOWEST ON THE PRIORITY LISTINGS PREPARED BY THE MATERIALS ANALYSIS
BRANCH. ON MARCH 18, 1966, THE DECOMMITMENT OF FUNDS FOR THE PURCHASE
REQUEST FOR ITEM 2 WAS CONFIRMED BY THE ASSISTANT DIRECTOR OF SUPPORT
OPERATIONS.
WITH RESPECT TO YOUR CONTENTION THAT YOU WERE REQUESTED TO FURNISH
DESCRIPTIVE DATA AFTER BID OPENING, THE BUYER HAS STATED AS FOLLOWS:
" "I ASKED FOR INFORMATION CONCERNING FEEDBACK'S EXPERIENCE WITH
THESE (IFB) TYPE ITEMS, EXPERIENCE WITH OTHER GOVERNMENT CONTRACTS,
FACILITIES AND FINANCIAL STATUS. MR. BAILEY WAS TO COMPILE THIS
INFORMATION AND FORWARD IT TO ME. I DID NOT SOLICIT DESCRIPTIVE DATA
SUCH AS DRAWINGS, ILLUSTRATIONS OR BROCHURES.'
" "IT APPEARS THAT MR. BAILEY MISUNDERSTOOD MY REQUEST AS HE REFERS
TO "DESCRIPTIVE LITERATURE" IN HIS LETTER OF FEBRUARY 16, 1966. I DID
NOT HAVE TIME TO COMPLETELY REVIEW THE DATA, HOWEVER, SINCE MR. BAILEY
USED THE TERM "DESCRIPTIVE LITERATURE," THE PACKAGE WAS TREATED AS
UNSOLICITED DESCRIPTIVE DATA, WAS NOT DISCLOSED AND WAS NOT CONSIDERED
AS QUALIFYING THE FEEDBACK BID.' "
IT IS NASA'S POSITION THAT YOUR INTERPRETATION OF THE TELEPHONE
CONVERSATION OF FEBRUARY 15, 1966, RESULTED FROM A MISUNDERSTANDING. IN
THIS CONNECTION NASA ADVISES THAT THERE NEVER WAS ANY QUESTION REGARDING
THE RESPONSIVENESS OF YOUR BID.
IN REGARD TO YOUR CONVERSATION WITH THE BUYER ON MARCH 31, 1966, YOUR
CONTENTIONS HAVE BEEN CONTRADICTED BY THE BUYER. IT IS THE BUYER'S
CONTENTION THAT IN VIEW OF THE FUNDING PROBLEMS HE WAS IN NO POSITION ON
MARCH 31, 1966, TO MAKE ANY COMMENT REGARDING YOUR DATA OR THE
LIKELIHOOD OF AN AWARD TO YOU. YOU WERE NOT ADVISED OF THE IMMINENT
CANCELLATION OF THE IFB ON MARCH 31, 1966, SINCE THE OFFICIAL APPROVAL
NECESSARY FOR THE CANCELLATION HAD NOT BEEN RECEIVED BY THE BUYER. KSC
CONSIDERED THAT YOUR CONVERSATION WITH KSC ON MARCH 31, 1966, ANSWERED
THE QUESTION IN YOUR LETTER OF MARCH 28, 1966; THEREFORE, NO FORMAL
REPLY TO YOUR LETTER OF MARCH 28, 1966, WAS MADE BY KSC.
CONSIDERING THE AGGREGATE AWARD PROVISION ON PAGE 12 OF THE IFB,
QUOTED ABOVE, THE CANCELLATION OF ITEM 2 OF THE IFB WOULD REQUIRE THE
CANCELLATION OF THE ENTIRE IFB. THE RULE HERE IS THAT BIDS MUST BE
EVALUATED ON A COMMON BASIS WHICH IS PRESCRIBED IN THE IFB. SEE
B-157828, DECEMBER 16, 1965, AND 40 COMP. GEN. 160, 161. CONSEQUENTLY,
THE QUESTION IS--- WAS THE CANCELLATION OF ITEM 2 OF THE IFB JUSTIFIED?
WE, OF COURSE, RECOGNIZE THAT THE CANCELLATION OF AN IFB AFTER BID
OPENING IS PREJUDICIAL TO THE LOW BIDDER AND THEREFORE COGENT AND
COMPELLING REASONS ARE NECESSARY TO JUSTIFY SUCH CANCELLATION. SEE 39
COMP. GEN. 396. MUCH OF THE CONFUSION IN THIS CASE PROBABLY COULD HAVE
BEEN AVOIDED IF KSC'S LETTER OF APRIL 7, 1966, WHICH NOTIFIED THE
BIDDERS OF THE CANCELLATION OF THE IFB, HAD CLEARLY SET FORTH THE
REASONS WHY THE IFB WAS BEING CANCELLED.
PURSUANT TO OUR REVIEW OF THE CONTENTIONS IN YOUR LETTER OF APRIL 11,
1966, AND KSC'S ANSWERS THERETO, WE FIND NO SUPPORT FOR THE ALLEGATION
THAT FAVORITISM INFLUENCED THE DECISION TO CANCEL THE INSTANT IFB.
THE RECORD PRESENTED TO OUR OFFICE INDICATES THAT ITEM 2 OF THE IFB
WAS CANCELLED BECAUSE SUFFICIENT FUNDS FOR THE PROCUREMENT OF THIS ITEM
WERE NOT AVAILABLE. IN B-157419, OCTOBER 18, 1965, WE HELD THAT AN IFB
COULD BE CANCELLED AFTER BID OPENING IF SUFFICIENT FUNDS FOR THE
PROCUREMENT ARE NOT AVAILABLE. WE POINTED OUT THAT THE COURTS HAVE
CONSISTENTLY HELD THAT A REQUEST FOR BIDS BY THE GOVERNMENT DOES NOT
IMPORT ANY OBLIGATION TO ACCEPT ANY OF THE OFFERS RECEIVED, INCLUDING
THE LOWEST CORRECT BID. APPLYING THIS RATIONALE TO THE INSTANT CASE, WE
HAVE NO BASIS FOR QUESTIONING THE ADMINISTRATIVE DECISION TO CANCEL ITEM
2 OF THE IFB. AS INDICATED ABOVE, THE CANCELLATION OF ITEM 2 OF THE IFB
WOULD REQUIRE THE CANCELLATION OF THE ENTIRE IFB. IN VIEW OF OUR
FINDING THAT THE CANCELLATION OF ITEM 2 OF THE IFB WAS JUSTIFIED, WE
HAVE NO BASIS FOR OBJECTING TO THE CANCELLATION OF THE ENTIRE IFB.
B-159040, JUL. 12, 1966
TO COMPTROLLER, DEPARTMENT OF THE NAVY:
ON APRIL 5, 1966, YOU FORWARDED A REQUEST FOR OUR DECISION FROM THE
COMMANDER, PUGET SOUND NAVAL SHIPYARD, AS TO WHETHER A PAYROLL VOUCHER
FOR $16.11, COVERING PAYMENT OF NIGHT DIFFERENTIAL TO RUSSELL J.
WARREN, AN EMPLOYEE OF THE PUGET SOUND NAVAL SHIPYARD, BREMERTON,
WASHINGTON, MAY BE PROCESSED FOR PAYMENT.
WE UNDERSTAND THAT SOME 40 CLASSIFICATION ACT EMPLOYEES AT THE
SHIPYARD SERVING IN ENGINEER AND TECHNICAL POSITIONS IN THE TEST BRANCH,
DESIGN DIVISION, INCLUDING MR. WARREN, ARE REQUIRED TO REPORT FOR TESTS
OCCURRING OUTSIDE THEIR REGULARLY SCHEDULED TOURS OF DUTY OF 7:40 A.M.
TO 4:20 P.M. YOU ASK WHETHER THIS WORK MAY BE CONSIDERED TO BE
"REGULARLY SCHEDULED" NIGHT WORK, AS DEFINED IN THE NAVY REGULATIONS AND
DECISIONS OF THIS OFFICE, FOR WHICH NIGHT DIFFERENTIAL COMPENSATION MAY
BE PAID.
SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 298,
AS AMENDED, 5 U.S.C. 921, PROVIDES THAT ANY REGULARLY SCHEDULED WORK
BETWEEN THE HOURS OF 6 P.M. AND 6 A.M. SHALL BE CONSIDERED NIGHT WORK,
AND THAT ANY EMPLOYEE PERFORMING SUCH WORK SHALL BE COMPENSATED FOR SUCH
WORK AT HIS RATE OF BASIC COMPENSATION PLUS PREMIUM COMPENSATION
AMOUNTING TO 10 PERCENTUM OF SUCH RATE.
THE DEPARTMENT OF THE NAVY CIVILIAN PERSONNEL INSTRUCTION, NCPI,
610.5-3, PROVIDES THAT NIGHT DIFFERENTIAL PAY IS PAYABLE TO GRADED
EMPLOYEES ONLY FOR REGULARLY SCHEDULED WORK BETWEEN THE HOURS OF 6 P.M.
AND 6 A.M. NCPI 610.1-4H DEFINES "REGULAR" AS MEANING ACCORDING TO THE
RULE AND RECURRING. NCPI 610.1-4H (5) PROVIDES THAT TO BE REGULARLY
SCHEDULED, WORK BETWEEN THE HOURS OF 6 P.M. AND 6 A.M. MUST BE
SCHEDULED BY COMPETENT AUTHORITY PRIOR TO THE BEGINNING OF THE
ADMINISTRATIVE WORKWEEK TO CONTINUE FOR AT LEAST TWO CONSECUTIVE
WORKWEEKS, OR FOR THREE DAYS OF EVERY OTHER WORKWEEK. NCPI 610.2-2A
PROVIDES THAT THE DAYS AND SHIFT HOURS OF AN EMPLOYEE'S BASIC WORKWEEK
SHALL NOT BE CHANGED WITHOUT NOTICE TO THE EMPLOYEE AT LEAST THREE
CALENDAR DAYS BEFORE THE FIRST ADMINISTRATIVE WORKWEEK AFFECTED BY THE
CHANGE. NCPI 610.2-2C PROVIDES THAT SHIFT HOURS, BUT NOT DAYS OF WORK,
MAY BE CHANGED WITHOUT THREE-DAY ADVANCE NOTICE WHEN THE JOB OPERATIONS
ARE OF SUCH A NATURE WHICH REQUIRES THAT SHIFT HOURS BE ADAPTED TO
UNPREDICTABLE HOURS, SUCH AS THE CASES OF SHIP DOCKINGS, LOADINGS AND
UNLOADINGS.
THE TESTS IN QUESTION HERE ARE PERFORMED IN PART BETWEEN THE HOURS OF
6 P.M. AND 6 A.M., AND RELATE TO THE INSTALLING OR REPAIRING OF
ELECTRICAL, ELECTRONIC, VENTILATING, OR MAIN PROPULSION EQUIPMENT. THEY
ARE USUALLY OF ONE OR TWO DAYS DURATION AND REQUIRE THE TEMPORARY
CHANGING OF THE SHIFT HOURS OF THE EMPLOYEES. THIS NIGHT WORK IS
REQUIRED EVERY MONTH OF THE YEAR. WHILE THE NIGHT TESTS ARE REGULARLY
REQUIRED, THEY ARE USUALLY NOT PREDICTABLE. BECAUSE OF THE NATURE OF
THE WORK, GIVING ADVANCE NOTICE OF SHIFT CHANGES IS NOT ALWAYS POSSIBLE,
AND, FOR THIS REASON, THE SITUATION HAS BEEN CONSIDERED TO COME WITHIN
THE EXCEPTION FOR CHANGING SHIFTS WITHOUT THREE DAYS NOTICE SPECIFIED IN
NCPI 610.2-2C. HOWEVER, NIGHT DIFFERENTIAL COMPENSATION HAS NOT BEEN
PAID ON THE BASIS THAT THE REQUIREMENT OF "REGULARLY SCHEDULED" HAS NOT
BEEN MET.
WE HELD IN 40 COMP. GEN. 397 THAT TO CONSTITUTE "REGULARLY SCHEDULED
WORK" THE WORK MUST BE DULY AUTHORIZED IN ADVANCE AND MUST BE SCHEDULED
TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS. ALSO, IN 41
COMP. GEN. 8 WE HELD THAT NIGHT DIFFERENTIAL WAS PAYABLE TO SECURITY
CARRIERS FOR NIGHT WORK WHICH COULD NOT BE PRECISELY SCHEDULED IN
ADVANCE, IT APPEARING THAT THE NIGHT WORK WAS AN INHERENT REQUIREMENT OF
THE EMPLOYMENT AND RECURRED REGULARLY ALTHOUGH NOT ACCORDING TO A FIXED
HOURS-OF-WORK PATTERN. TO THE SAME EFFECT SEE 42 COMP. GEN. 326. OUR
VIEW IS THAT THE WORKING SITUATION OF THE EMPLOYEES HERE INVOLVED IS
COMPARABLE TO THE WORKING ARRANGEMENTS OF THE EMPLOYEES INVOLVED IN THE
ABOVE-CITED DECISIONS. ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED
HEREWITH, MAY BE PROCESSED FOR PAYMENT IF OTHERWISE CORRECT.
B-159217, JUL. 12, 1966
TO JAMES C. WEBB, YNC, 266 75 58:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 25, 1966, WITH
ENCLOSURES, CONCERNING YOUR CLAIM FOR BASIC ALLOWANCE FOR SUBSISTENCE
(SEPARATE RATIONS) AT THE RATE OF $1.13 PER DAY FOR THE PERIOD SEPTEMBER
1, 1964, TO DECEMBER 20, 1964, INCIDENT TO YOUR SERVICE AT THE HIGH
WYCOMBE AIR STATION, HIGH WYCOMBE, ENGLAND. IN YOUR LETTER YOU ALSO
CLAIM REIMBURSEMENT OF THE EXPENSES INCURRED BY YOU IN COMMUTING BY
PRIVATELY OWNED VEHICLE FROM YOUR RESIDENCE IN LONDON TO HIGH WYCOMBE
DURING THE PERIOD SEPTEMBER 1 TO DECEMBER 1, 1964.
THE RECORDS SHOW THAT EFFECTIVE SEPTEMBER 1, 1964, YOU WERE
TRANSFERRED FROM THE U.S. NAVAL SUPPORT ACTIVITY, LONDON, ENGLAND, WHERE
YOU HAD BEEN RECEIVING A BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF
$2.57 PER DAY, TO COMMANDER IN CHIEF ATLANTIC REPRESENTATIVE TO THE
FIELD REPRESENTATIVE, EUROPE, HIGH WYCOMBE, ENGLAND. YOU CONTINUED TO
RECEIVE THE BASIC ALLOWANCE FOR SUBSISTENCE AT $2.57 PER DAY UNTIL
DECEMBER 15, 1964, WHEN THE DISBURSING OFFICE DETERMINED THAT YOU WERE
NOT ENTITLED TO SUCH ALLOWANCE SINCE RATIONS IN KIND WERE AVAILABLE AT
HIGH WYCOMBE AND THAT YOU WERE NOT AUTHORIZED TO MESS SEPARATELY. ON
DECEMBER 21, 1964, YOU APPLIED FOR COMMUTED RATIONS AND EFFECTIVE
JANUARY 18, 1965, YOUR PAY ACCOUNT WAS CREDITED WITH SUCH ITEM EFFECTIVE
DECEMBER 21. YOUR PAY ACCOUNT WAS CHECKED FOR THE ENTIRE AMOUNT OF THE
BASIC ALLOWANCE FOR SUBSISTENCE WHICH HAD BEEN CREDITED FOR THE PERIOD
COMMENCING SEPTEMBER 1, 1964. BY SETTLEMENT DATED JUNE 3, 1965, YOUR
CLAIM WAS DISALLOWED FOR THE REASON THAT YOU WERE NOT AUTHORIZED TO MESS
SEPARATELY PRIOR TO DECEMBER 21, 1964.
IN YOUR LETTER OF MARCH 25, 1966, YOU CITE CERTAIN PROVISIONS OF THE
NAVY COMPTROLLER MANUAL AND THE BUREAU OF NAVAL PERSONNEL MANUAL IN
SUPPORT OF YOUR VIEW THAT YOU ARE ENTITLED TO THE COMMUTED RATIONS AND
YOU CONTEND THAT THERE WOULD HAVE BEEN NO ERROR IN YOUR CASE HAD NAVY
PERSONNEL FOLLOWED PRESCRIBED PROCEDURES AT THE TIME OF YOUR TRANSFER.
YOU EXPRESS THE BELIEF THAT THE SECOND PARAGRAPH OF LETTER OF DECEMBER
24, 1964, FROM YOUR ORGANIZATION WHEN READ IN CONJUNCTION WITH LETTER OF
DECEMBER 22, 1964, FROM THE 3929TH AIR BASE SQUADRON (SAC), HIGH WYCOMBE
AIR STATION, SUBSTANTIATES THE FACT THAT YOU WERE AUTHORIZED TO MESS
SEPARATELY, EFFECTIVE SEPTEMBER 1, 1964.
SECTION 402, TITLE 37, U.S. CODE, AUTHORIZES THE PAYMENT OF A BASIC
ALLOWANCE FOR SUBSISTENCE TO MEMBERS OF THE UNIFORMED SERVICES "WHEN
PERMISSION TO MESS SEPARATELY IS GRANTED.' PARAGRAPH A-4404 (7) OF THE
BUREAU OF NAVAL PERSONNEL MANUAL, CHANGE 10, APPLICABLE IN YOUR CASE,
PROVIDES THAT ENLISTED PERSONNEL ON DUTY WHERE A GENERAL MESS IS
OPERATED MAY BE AUTHORIZED TO MESS SEPARATELY AND PAID A COMMUTED RATION
COMMENCING ON THE DATE AND HOUR FROM WHICH THE MEMBER'S REQUEST IS
APPROVED AND THAT THE COMMANDING OFFICER'S APPROVAL OF A REQUEST FOR
COMMUTED RATIONS MAY NOT COVER A RETROACTIVE PERIOD PRIOR TO THE DATE
AND HOUR THE REQUEST IS SUBMITTED.
A GENERAL MESS WAS AVAILABLE AT HIGH WYCOMBE. HENCE, UNDER THE LAW
AND REGULATIONS, THE CREDIT OF COMMUTED RATIONS TO YOUR PAY ACCOUNT
COMMENCING SEPTEMBER 1, 1964, DATE OF YOUR ARRIVAL AT THAT STATION, WAS
AUTHORIZED ONLY UPON A SHOWING THAT YOU HAD SUBMITTED A REQUEST FOR
COMMUTED RATIONS ON OR BEFORE SEPTEMBER 1, 1964. SINCE YOU DID NOT
REQUEST COMMUTED RATIONS UNTIL DECEMBER 21, 1964, YOU DID NOT MEET THE
REQUIREMENTS PRESCRIBED IN THE LAW AND REGULATIONS GOVERNING THE PAYMENT
OF COMMUTED RATIONS PRIOR TO THAT DATE. UNDER THE REGULATIONS, NO
RETROACTIVE EFFECT MAY BE GIVEN TO THE COMMANDING OFFICER'S APPROVAL OF
YOUR REQUEST OF DECEMBER 21, 1964.
PARAGRAPH A-4408 (7) (C) OF THE BUREAU OF PERSONNEL MANUAL, MENTIONED
BY YOU, HAS NO APPLICATION IN YOUR CASE. THAT REGULATION HAS REFERENCE
TO SITUATIONS WHERE A PRIOR VERBAL AUTHORIZATION TO MESS SEPARATELY HAD
BEEN GRANTED TO AN ENLISTED MEMBER AND THE CONFIRMATION IN WRITING
THOUGH NOT CONTEMPORANEOUS WAS MADE WITHIN A REASONABLE TIME FOLLOWING
THE VERBAL AUTHORIZATION. SEE OUR DECISION OF JULY 18, 1955, B-123769,
COPY ENCLOSED.
THE LETTER DATED DECEMBER 22, 1964, FROM THE 3929TH AIR BASE SQUADRON
(SAC), HIGH WYCOMBE, STATES THAT IT IS THE POLICY OF THE COMMANDER OF
THAT STATION TO AUTHORIZE COMMUTED RATIONS TO ALL PERSONNEL ASSIGNED WHO
ARE MESSING WITH THEIR FAMILIES IN THE LOCAL AREA. HOWEVER, THE RECORDS
SHOW THAT YOU DID NOT MAKE APPLICATION PRIOR TO DECEMBER 21, 1964, TO
MESS SEPARATELY AND NEITHER THAT LETTER NOR THE LETTER OF DECEMBER 24,
1964, FROM YOUR ORGANIZATION, WHICH STATES THAT YOU COULD NOT REASONABLY
BE EXPECTED TO MAKE FORMAL APPLICATION FOR COMMUTED RATIONS WHEN YOU
WERE UNAWARE THAT ANY PROCEDURAL DISCREPANCIES OR OMISSIONS EXISTED, MAY
BE APPLIED AS BACK DATING YOUR APPLICATION TO SEPTEMBER 1, 1964. WHILE
IT MAY BE THAT YOU WERE MISLED BY NAVAL PERSONNEL AS TO YOUR ENTITLEMENT
TO THE BASIC ALLOWANCE FOR SUBSISTENCE AT THE TIME OF YOUR TRANSFER TO
HIGH WYCOMBE, THAT FACT AFFORDS NO LEGAL BASIS FOR PAYMENT TO YOU OF THE
COMMUTED RATIONS, IT BEING WELL-SETTLED THAT IN THE ABSENCE OF SPECIFIC
STATUTORY PROVISION, THE UNITED STATES IS NOT LIABLE FOR NEGLIGENT
ACTIONS OF ITS OFFICERS, AGENTS, OR EMPLOYEES, EVEN THOUGH COMMITTED IN
THE PERFORMANCE OF THEIR OFFICIAL DUTIES. GERMAN BANK V. UNITED STATES,
148 U.S. 573, 579 (1893); 19 COMP. GEN. 503; AND 22 COMP. GEN. 221.
WE MAY ADVISE YOU THAT THE ARTICLE IN THE AIR FORCE TIMES (EUROPE),
ISSUE OF SEPTEMBER 29, 1965, SUBMITTED BY YOU FOR OUR CONSIDERATION OF
YOUR CLAIM IN THE LIGHT OF A "MORE EQUITABLE SOLUTION," DEALT WITH A
LEGISLATIVE PROPOSAL RELIEVING A NUMBER OF AIRMEN IN A SITUATION WHERE
SUCH AIRMEN WERE AUTHORIZED TO MESS SEPARATELY, BUT WERE IMPROPERLY PAID
BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 RATHER THAN $1.10
PER DAY BECAUSE OF THE AVAILABILITY OF A GOVERNMENT GENERAL MESS. IN
THE CIRCUMSTANCES OF YOUR CASE WE ARE WITHOUT LEGAL AUTHORITY TO ALLOW
THE COMMUTED RATIONS FOR THE PERIOD CLAIMED BY YOU. ACCORDINGLY, THE
SETTLEMENT OF JUNE 3, 1965, WAS CORRECT AND IS SUSTAINED.
CONCERNING YOUR CLAIM FOR REIMBURSEMENT OF THE EXPENSES INCURRED BY
YOU IN COMMUTING FROM YOUR RESIDENCE IN LONDON TO HIGH WYCOMBE, IT HAS
LONG BEEN THE RULE THAT THE EXPENSE OF TRAVEL BETWEEN HOME OR LODGINGS
AND PLACE OF DUTY AT A PERMANENT DUTY STATION IS A PERSONAL OBLIGATION
NOT REIMBURSABLE FROM PUBLIC FUNDS. SEE 45 COMP. GEN. 30 AND 42 COMP.
GEN. 612, COPIES ENCLOSED. ACCORDINGLY, YOUR CLAIM FOR REIMBURSEMENT OF
SUCH EXPENSES MAY NOT BE ALLOWED.
B-159525, JUL. 12, 1966
TO MR. ADOLPH M. LAPIC:
REFERENCE IS MADE TO YOUR LETTER DATED MAY 31, 1966, REQUESTING
FURTHER CONSIDERATION OF YOUR CLAIM FOR ARREARS OF PAY INCIDENT TO YOUR
SERVICE IN THE UNITED STATES MARINE CORPS DURING WORLD WAR II.
YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED AUGUST 17, 1965, ON THE
BASIS THAT ALTHOUGH OUR RECORDS INDICATE THAT A CLAIM WAS FILED IN 1943,
THE LONG DELAY ON YOUR PART IN PURSUING YOUR CLAIM AND THAT DESTRUCTION
OF THE RECORDS INVOLVED PURSUANT TO LAW, GAVE RISE TO A SITUATION WHICH
MADE IT IMPOSSIBLE TO EITHER PROVE OR DISPROVE PAYMENT OF YOUR EARLIER
CLAIM. IN SUCH CIRCUMSTANCES, THIS OFFICE MUST CONCLUDE THAT YOUR 1943
CLAIM WAS GIVEN THE PROPER CONSIDERATION AT THAT TIME, AND WAS
DETERMINED TO BE EITHER NOT VALID OR, IF VALID, THAT PAYMENT WAS MADE TO
YOU. IN OTHER WORDS, IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE OF
THE PRESENT VALIDITY AND NONPAYMENT OF YOUR CLAIM, WE MAY NOT CONSIDER
THE MERITS OF SUCH CLAIM AT THIS LATE DATE. THE COPY OF THE LETTER TO
YOU FROM THE MARINE CORPS DATED NOVEMBER 25, 1943, DOES NOT CONSTITUTE
SUFFICIENT EVIDENCE TO SUPPORT THE PRESENT VALIDITY AND NONPAYMENT OF
YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF AUGUST 17, 1965, IS
SUSTAINED.
CONCERNING YOUR COMMENT WITH RESPECT TO THE DESTRUCTION OF RECORDS,
YOU ARE ADVISED THAT OUR RECORDS INDICATE THAT THE CLAIMS FILE IN YOUR
CASE WAS DESTROYED PURSUANT TO AUTHORITY CONTAINED IN THE ACT OF JULY 7,
1943, CH. 192, 57 STAT. 380.
B-156463, JUL. 11, 1966
TO STRICKLAND TRANSPORTATION COMPANY, INC. :
FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 1, 1965, CLAIM
FILE NO. GAO-22821, IN WHICH YOU REQUEST REVIEW OF OUR SETTLEMENT
(TK-788961) OF OCTOBER 15, 1965, DISALLOWING YOUR SUPPLEMENTAL BILL NO.
12334-A FOR ADDITIONAL FREIGHT CHARGES FOR TRANSPORTATION SERVICES
FURNISHED UNDER GOVERNMENT BILLS OF LADING B-7158378 AND B-7158386.
THESE BILLS OF LADING COVERED 16,000 POUND LOTS OF METAL CONTAINERS
MOVING IN MARCH 1963 FROM THE RED RIVER ARMY DEPOT, DEFENSE, TEXAS, TO
ANDOVER, MASSACHUSETTS.
YOU ORIGINALLY BILLED AND COLLECTED CHARGES ON THE BASIS OF A VOLUME
MINIMUM WEIGHT OF 23,000 POUNDS ON EACH PART LOT AND IN OUR AUDIT THE
CHARGES WERE REDUCED TO THE BASIS OF ACTUAL WEIGHT ON EACH PART LOT
BECAUSE THE TOTAL WEIGHT OF THE FOUR PART LOT SHIPMENT WAS OVER 23,000
POUNDS. IN YOUR LETTER YOU INDICATED THAT THE SITUATION AS TO THOSE
BILLS OF LADING WAS IDENTICAL TO THAT RELATING TO GOVERNMENT BILLS OF
LADING B-7198853 AND B-7158856, WHICH WERE THE SUBJECT OF OUR LETTER OF
NOVEMBER 16, 1965, B-156463, ALLOWING COMPUTATION OF CHARGES ON THE
BASIS THAT THOSE BILLS OF LADING COVERED SEPARATE SHIPMENTS.
UPON REVIEW OF THE VARIOUS FILES PERTAINING TO THE SHIPMENTS WE FIND
THAT THE SITUATION RELATING TO THE GOVERNMENT BILLS OF LADING INVOLVED
IN THIS INSTANCE DIFFERS MATERIALLY FROM THAT RELATING TO THE BILLS OF
LADING INVOLVED IN THE EARLIER CASE. THERE, IN THE ABSENCE OF
CROSS-REFERENCING INDICATING THAT THE LATTER TWO BILLS WERE TENDERED AS
A VOLUME SHIPMENT THE ADMINISTRATIVE OFFICE ISSUED CORRECTION NOTICES
(DD FORM 1352) WHICH, HOWEVER, WERE NEVER ACKNOWLEDGED BY ANY OF YOUR
REPRESENTATIVES. BECAUSE OF THE ABSENCE OF BOTH CROSS-REFERENCING AND
OF THE NECESSARY ACKNOWLEDGMENT BY YOUR AGENT THAT THE BILLS OF LADING
COVERED PART LOTS OF A SHIPMENT WEIGHING MORE THAN 23,000 POUNDS, WE
CONCLUDED THAT EACH OF THE BILLS OF LADING COVERED SINGLE SHIPMENTS
SUBJECT TO THE MINIMUM WEIGHT OF 23,000 POUNDS.
THE SHIPMENTS MOVING ON BILLS OF LADING B-7158378 AND B-7158386 WERE
BOTH RECEIVED AND SIGNED FOR ON BEHALF OF YOUR COMPANY BY D. E. SIMMONS.
THE COVERING CORRECTION NOTICES SHOW THAT THEY WERE THE SECOND AND THE
FINAL BILLS OF LADING ISSUED TO COVER A VOLUME SHIPMENT OF APPROXIMATELY
67,000 POUNDS (OF METAL SHIPPING CONTAINERS) TENDERED ON MARCH 6, 1963,
AND BEAR THE ACKNOWLEDGMENT SIGNATURE OF THE SAME D. E. SIMMONS, WHOSE
SIGNATURE ALSO APPEARS ON THE BILLS OF LADING. CORRECTION NOTICES FOR
GOVERNMENT BILLS OF LADING B-7158377 ON THE FIRST PORTION AND B-7158379
ON THE THIRD PORTION OF THE FOUR-PART VOLUME SHIPMENT ALSO BEAR THAT
SIGNATURE. IN THE LIGHT OF THIS ACKNOWLEDGMENT OF VOLUME SHIPMENT
TENDER BY YOUR AGENT, THE SAME EMPLOYEE WHO SIGNED THE BILLS OF LADING,
THE VOLUME CHARGE BASIS IS APPLICABLE TO THE ACTUAL WEIGHT (RATHER THAN
23,000 POUNDS) OF EACH PART LOT.
ACCORDINGLY, THE SETTLEMENT OF OCTOBER 15, 1965, DISALLOWING YOUR
CLAIM, WAS CORRECT, AND IT IS HEREBY SUSTAINED.
B-157954, JUL. 11, 1966
TO THE SECRETARY OF AGRICULTURE:
BY LETTER DATED MAY 27, 1966, WITH ENCLOSURES, ASSISTANT SECRETARY
JOSEPH M. ROBERTSON REQUESTED OUR DECISION AS TO WHETHER AIR TANKER
SERVICE CONTRACT NO. 27-0826 WITH WENAIRCO, INC., AS REVISED JANUARY
28, 1966, AND SEVEN OTHER SIMILAR CONTRACTS, FOR THE CONTROL AND
SUPPRESSION OF FOREST AND RANGE FIRES MAY BE MODIFIED TO INCLUDE REVISED
GUARANTEES AND FLIGHT-HOUR RATES ESTABLISHED BY THE FOREST SERVICE IN
MARCH 1966.
IT IS REPORTED THAT THE WENAIRCO CONTRACT AS REVISED PROVIDED FOR THE
FURNISHING OF AIR TANKER SERVICE FOR THE PERIOD JANUARY 1, 1966, TO
DECEMBER 31, 1966, AT PRESCRIBED PER HOUR RATES FOR ORDERED AIR TANKER
FLIGHTS. THE CONTRACT FURTHER PROVIDED THAT A MINIMUM PAYMENT OF
$39,700 WOULD BE GUARANTEED FOR THE AVAILABILITY OF THE BASIC AIR
TANKERS, BUT THAT ALL PAYMENTS FOR ORDERED FLIGHTS WOULD REDUCE THE
TOTAL GUARANTEED AMOUNT BY THE EARNINGS AT THE APPLICABLE FLIGHT-HOUR
RATE IN EFFECT.
THE ASSISTANT SECRETARY ADVISES THAT THE CALIFORNIA AIR TANKERS
ASSOCIATION AND THE NATIONAL AIR TANKER ASSOCIATION PROTESTED AGAINST
THE SETOFF OF FLIGHT PAYMENTS FROM THE GUARANTEED MINIMUMS SINCE THIS
RESULTED IN AN INADEQUATE FINANCIAL RETURN TO AIR TANKER OPERATORS. AT
A MEETING WITH THE FOREST SERVICE IN FEBRUARY 1966, THE ASSOCIATIONS
PRESENTED COST FIGURES TO SUBSTANTIATE THEIR CONTENTION THAT THE
GUARANTEES WERE INSUFFICIENT TO MEET THE CONTRACTOR'S DIRECT AIRCRAFT
OPERATING COSTS. BASED UPON THESE COST FIGURES AND FOREST SERVICE
STUDIES, IT WAS AGREED THAT THE GUARANTEES WERE UNREASONABLE OR NOT IN
LINE WITH STATED POLICY--- TO PROVIDE BY CONTRACT SUCH AIR TANKER RATES
AS WOULD ASSURE THE CONTINUITY OF A STRONG, EFFECTIVE AND RELIABLE FIRE
ATTACK FORCE. THEREAFTER, ON MARCH 4, 1966, OR SUBSEQUENT TO THE
RENEWAL OF THE WENAIRCO CONTRACT, REVISED CONTRACT FLIGHT RATES WERE
ESTABLISHED BY THE FOREST SERVICE TO PROVIDE FOR A DAILY GUARANTEE RATE
FOR EACH CATEGORY OF AIR TANKER TO ASSURE THE READY AVAILABILITY OF SUCH
AIR TANKERS. UNDER THESE NEW RATES, THE DAILY GUARANTEES ARE FIRM AND
ANY HOURS FLOWN ARE PAID FOR IN ADDITION TO THE GUARANTEE FOR
AVAILABILITY. ALSO, UNDER THE NEW RATES, 5 HOURS OF TEST FLIGHTS ARE TO
BE FURNISHED BY THE CONTRACTOR FOR EACH AIR TANKER AS PART OF THE
GUARANTEE, WHEREAS, UNDER THE OLD RATE STRUCTURE, PAYMENT WAS MADE FOR
FLIGHT-TEST HOURS. WE ARE ADVISED THAT AT LEAST 5 HOURS OF TEST FLYING
DURING A 90-DAY PERIOD OF LOW-FIRE EXPECTANCY ARE USED TO CHECK AIRCRAFT
OPERATIONS AND TO MAINTAIN PILOT PROFICIENCY DURING PERIODS WHEN
AIRCRAFT ARE NOT FLOWN ON ORDERED MISSIONS.
SUBSEQUENT TO THE ESTABLISHMENT OF THE NEW RATES, IT WAS LEARNED THAT
SEVEN OPERATOR-CONTRACTORS UNDER EIGHT SEPARATE CONTRACTS HAD RENEWED
THEIR CONTRACTS AT THE OLD RATES AND GUARANTEES. WE ARE ADVISED THAT AT
THE TIME OF RENEWAL, WENAIRCO PROTESTED THAT THE GUARANTEES WERE
INADEQUATE AND THAT IT WAS OPERATING AT A LOSS AS EVIDENCED BY ITS
OPERATING COST DATA. BUT THE CONTRACT WAS RENEWED AT THE OLD RATES AND
GUARANTEE "WITH THE UNDERSTANDING THAT WENAIRCO WOULD MAKE AVAILABLE
THEIR RECORDS TO A FOREST SERVICE ACCOUNTANT AND IF THE LOSS WOULD BE
SUBSTANTIATED, CONSIDERATION WOULD BE GIVEN TO AN ADJUSTMENT IN THE
GUARANTEE.'
THE ASSISTANT SECRETARY POINTS OUT THAT THE GUARANTEES WERE
ESTABLISHED ON A SERVICEWIDE BASIS BECAUSE OF THE IMPRACTICABILITY OF
NEGOTIATING A GUARANTEE ON AN INDIVIDUAL CONTRACT BASIS; AND THAT ABOUT
85 PERCENT OF THE CONTRACTORS WILL BE SUBJECT TO THE NEW RATES AND
GUARANTEES AND THE REMAINDER (15 PERCENT) WILL STILL BE SUBJECT TO THE
OLD RATES AND GUARANTEES IF ADJUSTMENT IS DENIED FOR THOSE SEVEN
CONTRACTORS WHO HAVE EXECUTED CONTRACT RENEWALS. FURTHER, IT IS STATED
THAT STANDARDIZATION OF GUARANTEES IS DESIRABLE SINCE CONTRACTORS ARE
USED INTERREGIONALLY AS NEEDED DEPENDING UPON THE EXTENT OF FIRE
OCCURRENCE; THAT UNDER ESTABLISHED FOREST SERVICE POLICY, IT WAS
INTENDED THAT CONTINUOUS OPERATOR COST STUDIES WOULD BE MADE AND
GUARANTEES ADJUSTED IN ACCORDANCE WITH FINDINGS AT THE TIME OF CONTRACT
RENEWAL OR NEGOTIATION OF NEW CONTRACTS; AND THAT THE ONLY FIGURES OR
AMOUNTS FOR NEGOTIATION ARE THE FLIGHT-HOUR RATES SINCE THE GUARANTEES
ARE PREDETERMINED AND FIXED BY THE FOREST SERVICE.
THE FOREST SERVICE MADE AN ANALYSIS OF TYPICAL COSTS UNDER THE OLD
RATE STRUCTURE AND THE NEW RATE STRUCTURE THAT REASONABLY ESTABLISHES
THAT THE NEW RATE STRUCTURE COULD VERY POSSIBLY RESULT IN DIRECT SAVINGS
TO THE GOVERNMENT--- EXCEPT IN THE CASE OF SMALL ENGINE AIRCRAFT--- WHEN
13 HOURS OR LESS OF FLIGHT HOURS ARE ORDERED DURING ANY 90-DAY PERIOD OF
THE FIRE SEASON. THIS MAY BEST BE ILLUSTRATED BY THE FOLLOWING
EXAMPLES:
CHART
"2-ENGINE 90-DAY PERIOD
OLD RATE
$190 PER DAY TIMES 90 DAYS $17,100
13 HRS. AT $375 PER HOUR (4,875)
--------
GOVERNMENT WOULD PAY $17,100
(GOVERNMENT ALSO PAYS FOR
TEST FLYING.)
NEW RATE
$160 PER DAY TIMES 90 DAYS $14,400
13 HRS. AT $360 PER HOUR 4,320
-------
$18,720
GOVERNMENT RECEIVES 5 HRS. FREE
TEST FLYING 5 TIMES $360 $-1,800
-------
GOVERNMENT WOULD PAY $16,920
"4-ENGINE 90-DAY PERIOD
OLD RATE
$245 PER DAY TIMES 90 DAYS $22,050
11 HRS. AT $575 PER HOUR (6,325)
--------
GOVERNMENT WOULD PAY $22,050
(GOVERNMENT ALSO PAYS FOR
TEST FLYING)
NEW RATE
$210 PER DAY TIMES 90 DAYS $18,900
11 HRS. AT $500 PER HOUR 5,500
--------
GOVERNMENT RECEIVES 5 HRS. FREE $24,400
TEST FLYING 5 TIMES $500 -2,500
--------
GOVERNMENT WOULD PAY $21,900
APPROXIMATELY 11 HOURS OR LESS RESULTS IN DIRECT SAVINGS TO THE
GOVERNMENT.
"SINGLE-ENGINE 90-DAY PERIOD
OLD RATE
$80 PER DAY TIMES 90 DAYS $ 7,200
GOVERNMENT WOULD PAY AS MINIMUM $ 7,200
NEW RATE
$110 PER DAY TIMES 90 DAYS 9,900
GOVERNMENT RECEIVES 5 HRS. FREE
TEST FLYING 5 TIMES $275 -1,375
--------
GOVERNMENT WOULD PAY $ 8,525"
THE DIRECTOR OF THE DIVISION OF FIRE CONTROL, FOREST SERVICE, HAS
DETERMINED IN THIS REGARD AS FOLLOWS:
"THE AIR TANKER CONTRACTING RATES AND PROCEDURES WERE REVISED TO
ASSURE A STRONG, EFFECTIVE AND RELIABLE INITIAL AIR ATTACK FORCE TO DROP
CHEMICAL ON FOREST FIRES TO HOLD THEM TO SMALL SIZE. PREVIOUS RATES AND
PROCEDURES WOULD NOT ASSURE THIS. OPERATORS UNDER THE OLD RATES COULD
NOT CONTINUE TO SUSTAIN LOSSES AND STAY IN BUSINESS. THERE WAS DANGER
OF THE ENTIRE AIR ATTACK SYSTEM BEING WEAKENED AND EVENTUALLY
DISINTEGRATING. THE NEW RATES MEAN OPERATORS CAN PUT THEIR EQUIPMENT IN
SAFE, RELIABLE CONDITION TO DO HIGHLY EFFECTIVE DROPPING. THEY CAN HIRE
THE BEST AVAILABLE PILOTS FOR THIS HIGHLY SKILLED JOB, AND CAN OBTAIN
AND USE THE NECESSARY SPECIALIZED SUPPORT FACILITIES AND STAFF.
"THE FOREST SERVICE IS DEPENDENT ON COMMERCIAL AVIATION OPERATORS FOR
AIR TANKER SERVICES IN DROPPING RETARDANTS FOR INITIAL ATTACK ON FOREST
FIRES. THEIR USE RAPIDLY INCREASED, REACHING A PEAK IN 1961. THE HOURS
OF USE FOR AIR TANKER SERVICES IS DIRECTLY RELATED TO THE SEVERITY OF
THE FOREST FIRE SEASON. AS A RESULT OF LESS SEVERE FIRE SEASON THE LAST
FEW YEARS, THE HOURS OF FLYING FOR THESE SERVICES HAS SIGNIFICANTLY
DECREASED. A 1964 STUDY SHOWED THE NEED TO HAVE SUCH SERVICES AVAILABLE
AND FURNISHED BY THE BEST OPERATORS. AIR TANKERS FROM OUR INITIAL
ATTACK BASES USUALLY ARE THE FIRST ATTACK UNITS TO REACH ANY FIRE TO
WHICH THEY ARE DISPATCHED. THE ORIGINAL PERFORMANCE IS EITHER EFFECTIVE
OR IT IS USELESS. A SMALL FIRE WHICH MIGHT HAVE BEEN INEXPENSIVELY
CONTROLLED BY A TIMELY AND EFFECTIVE AIR TANKER DROP CAN BECOME A LARGE,
EXPENSIVE AND DAMAGING ONE. THE INDIRECT BENEFITS TO BE GAINED, SUCH AS
SAVINGS IN COSTS OF FIGHTING A LARGE FIRE AND REDUCTION OF LOSS OF
NATURAL RESOURCES, BY FAR OUTWEIGH THE DIRECT COSTS OF GUARANTEEING
AVAILABILITY AND PAYING FOR FLIGHT HOURS.
"OF SPECIAL SIGNIFICANCE IS THE PROBABILITY OF DIRECT SAVINGS BY
LOWER FLIGHT HOURS. A REVIEW OF DATA ON AVERAGE NUMBER OF FLIGHT HOURS
PER AIRCRAFT DURING THE PAST FIVE YEARS SHOWS A DEFINITE TREND TO LESS
FLIGHT HOURS REQUIRED PER AIRCRAFT. THE RECORDS ALSO SHOW A GREATER
NUMBER OF REGIONS HAD FLIGHT-HOURS THAT WERE EITHER ESPECIALLY LOW OR
ESPECIALLY HIGH. IN BOTH CASES THERE IS A DEFINITE SAVINGS IN DIRECT
COSTS TO THE GOVERNMENT UNDER THE NEW RATE SCHEDULE. AS AN EXAMPLE, IN
1965 SIX OF THE NINE REGIONS SHOWED 2 TO 13 HOURS AVERAGE PER AIRCRAFT.
IN COMPARING THE OLD AND NEW RATE SCHEDULES USING TWIN-ENGINE AIRCRAFT,
THE LOW BREAK-EVEN POINT WAS 13 HOURS. ANY FLIGHT HOURS OF LESS THAN 13
RESULTS IN A DIRECT DOLLAR SAVINGS TO THE GOVERNMENT UNDER THE NEW RATE
SCHEDULE. CONTINUANCE OF THE STATISTICAL TREND INDICATES THE 1966
SEASON WILL REQUIRE EVEN LESS FLIGHT-HOURS PER AIRCRAFT. THIS WILL
RESULT IN ADDITIONAL DIRECT SAVINGS TO THE GOVERNMENT. OUR NEGOTIATION
SYSTEM IS INTENDED TO GET BETTER PERFORMANCE OF STOPPING FIRES WHILE
SMALL WHICH IN TURN MEANS LESS TOTAL FLIGHT-HOURS.
"ON THE BASIS OF THE ABOVE DATA AND PROJECTION, USE OF THE NEW RATES
SHOULD RESULT IN DIRECT SAVINGS TO THE GOVERNMENT FOR NEW CONTRACTS TO
BE NEGOTIATED AS WELL AS THE FEW ALREADY EXECUTED.'
IT IS A BASIC PRINCIPLE OF GOVERNMENT CONTRACT LAW THAT AN OFFICER
AUTHORIZED TO MAKE A CONTRACT FOR THE UNITED STATES HAS THE IMPLIED
AUTHORITY TO MODIFY THE PROVISIONS OF THAT CONTRACT WHERE IT IS CLEARLY
IN THE BEST INTERESTS OF THE UNITED STATES TO DO SO. BRANCH BANKING AND
TRUST CO., ET AL. V. UNITED STATES, 120 CT.CL. 72; EZRA B. WHITMAN, ET
AL. V. UNITED STATES, 124 CT.CL. 464. IT IS LIKEWISE A BASIC PRINCIPLE
THAT WITHOUT A COMPENSATING BENEFIT TO THE UNITED STATES, OFFICERS OF
THE GOVERNMENT HAVE NO AUTHORITY TO MODIFY EXISTING CONTRACTS OR TO
SURRENDER OR WAIVE CONTRACT RIGHTS THAT HAVE VESTED IN THE GOVERNMENT.
40 COMP. GEN. 684; 44 ID. 746.
IT IS CLEAR FROM THE RECORD, HOWEVER, THAT WENAIRCO AGREED TO THE
EXTENSION OF THE CONTRACT ON THE BASIS THAT ITS PREVIOUS CONTRACT LOSSES
WOULD BE VERIFIED THROUGH AN AUDIT EXAMINATION OF ITS OPERATION COSTS
AND, IF VERIFIED, CONSIDERATION WOULD BE GIVEN TO AN ADJUSTMENT IN THE
GUARANTEE.
ALSO, IT IS SHOWN THAT WENAIRCO'S PERFORMANCE UNDER ITS RENEWED
CONTRACT FOR 1966 WOULD RESULT IN FURTHER FINANCIAL LOSS TO IT, BUT THAT
WENAIRCO AGREED TO THE RENEWAL WITH THE REASONABLE EXPECTATION THAT THE
FOREST SERVICE WOULD, IN SOME MANNER, ALLEVIATE THE CONTRACTOR'S
CRITICAL FINANCIAL POSITION THAT WAS CREATED BY THE THEN-EXISTENT
CONTRACT RATE STRUCTURE. IN THE LIGHT OF THIS BACKGROUND, IT IS
INCONCEIVABLE THAT WENAIRCO WOULD DELIBERATELY AGREE TO AN EXTENSION OF
ITS CONTRACT, KNOWING THAT FURTHER LOSSES WOULD DEFINITELY RESULT
THEREFROM, UNLESS, AS A REASONABLY PRUDENT BUSINESS ORGANIZATION, IT HAD
SOME BASIS TO EXPECT AN ADJUSTMENT IN THE GUARANTEE AT A LATER DATE WHEN
ITS LOSSES WERE VERIFIED. IN THE CONTEXT OF THESE CIRCUMSTANCES, IT
WOULD NOT BE UNREASONABLE TO CONCLUDE THAT THE GOVERNMENT INDUCED THE
CONTRACTOR, ALBEIT INNOCENTLY AND IN GOOD FAITH, TO EXECUTE THE RENEWAL
AGREEMENT AT THE EXISTING RATE STRUCTURE WITH
THE UNDERSTANDING THAT, UPON AUDIT VERIFICATION OF HIS LOSSES UNDER
THE EXISTING RATE STRUCTURE, PRICE ADJUSTMENT RELIEF WOULD BE EXTENDED
TO THE CONTRACTOR.
IT IS WELL-ESTABLISHED POLICY THAT THE GOVERNMENT, AS A CONTRACTOR,
MUST FOLLOW STANDARDS OF FAIR DEALING IN ITS RELATIONS WITH CONTRACTORS;
THAT IS, THE GOVERNMENT MAY NOT PERSUADE A CONTRACTOR "BY FAIR WORDS
AND PROMISES" THAT RELIEF FROM A "LOSS CONTRACT" SITUATION WILL BE
,CONSIDERED" IF HE SIGNS THE AGREEMENT AND THEN REFUSE TO EXTEND SUCH
RELIEF BECAUSE HE IS BOUND BY HIS IMPROVIDENT CONTRACT. CF. EDMUND J.
RAPPOLI COMPANY, INC. V. UNITED STATES, 98 CT.CL. 99; LANGE V. UNITED
STATES, 120 F.2D 886. SEE, ALSO, ARNDT, PRESTON, CHAPIN, LAMB AND KEEN,
INC. V. L-M MFG.CO., 163 F.SUPP. 406, AFFIRMED 262 F.2D 343.
IN ADDITION TO THE FOREGOING, WE FEEL THAT REFUSAL TO PERMIT
MODIFICATION OF THE CONTRACTS WOULD NOT BE IN THE BEST INTERESTS OF THE
GOVERNMENT EITHER FROM THE STANDPOINT OF ASSURING CONTINUOUS, EFFECTIVE
AIR TANKER SERVICE OR FROM A MONETARY POINT OF VIEW WHEN FULL
CONSIDERATION IS GIVEN TO THE FACT THAT THE INTEREST OF THE GOVERNMENT
TO PROTECT ITS FORESTS FROM MULTIMILLION DOLLAR FIRES CAN BE BEST
PRESERVED BY MAINTAINING THE FINANCIAL INTEGRITY OF ITS PRESENT AIR
TANKER CONTRACTORS.
ACCORDINGLY, WE WILL NOT OBJECT TO A MODIFICATION OF THE WENAIRCO
CONTRACT, AND THE SEVEN OTHERS SIMILARLY AFFECTED, TO INCLUDE THE
REVISED GUARANTEES AND FLIGHT-HOUR RATES HERETOFORE ESTABLISHED BY THE
FOREST SERVICE FOR COUNTRY-WIDE APPLICATION.
B-158871, JUL. 11, 1966
TO JACOB H. FISCHMAN:
WE REFER TO YOUR LETTER OF APRIL 6, 1966, PROTESTING ON BEHALF OF
CHEMICAL COMPOUNDING CORPORATION AGAINST THE REJECTION OF ITS BID UNDER
ITEM B OF INVITATION FOR BIDS NO. DSA-4-66-2643, ISSUED ON NOVEMBER 30,
1965, BY THE DEFENSE SUPPLY AGENCY, RICHMOND, VIRGINIA.
THE INVITATION CALLED FOR BIDS ON VARIOUS ITEMS OF DECONTAMINATING
AGENT. ITEM B WAS FOR 3,500 DRUMS OF DECONTAMINATING AGENT ON AN F.O.B.
ORIGIN BASIS ONLY. BIDS WERE TO BE EVALUATED ON THE BASIS OF SHIPMENT
TO GUAM (1,500 DRUMS), JAPAN (500 DRUMS), OKINAWA (500 DRUMS) AND THE
PHILIPPINE ISLANDS (1,000 DRUMS). UNDER TELEGRAPHIC BID CLAUSE (238) AT
PAGE 8 OF THE INVITATION TELEGRAPHIC BIDS WERE PERMITTED PROVIDED THAT
(A) ANY SUCH TELEGRAPHIC BID WAS RECEIVED IN TIME; (B) A SPECIFIC
REFERENCE WAS MADE TO THE INVITATION; (C) THE ITEM OR SUB-ITEMS,
QUANTITIES AND UNIT PRICES AND THE TIME AND PLACE OF DELIVERY WERE
INCLUDED IN THE TELEGRAPHIC BID; (D) THE BID CONTAINED "ALL THE
REPRESENTATIONS AND OTHER INFORMATION REQUIRED BY THE INVITATION FOR
BIDS TOGETHER WITH A STATEMENT THAT THE BIDDER AGREES TO ALL THE TERMS,
CONDITIONS AND PROVISIONS OF THE INVITATION.' BIDDERS WERE ADMONISHED
THAT THE FAILURE "TO FURNISH, IN THE TELEGRAPHIC BID, THE
REPRESENTATIONS AND INFORMATION REQUIRED BY THE INVITATION FOR BIDS MAY
NECESSITATE REJECTION OF THE BID * * *," AND THEY WERE REQUIRED TO
FURNISH SIGNED COPIES OF THE INVITATIONS IN CONFIRMATION OF THE
TELEGRAPHIC BIDS.
ONE OF THE BIDS RECEIVED BY BID OPENING, WHICH WAS HELD AT 10:30
A.M., DECEMBER 22, 1965, WAS A TELEGRAPHIC BID FROM CHEMICAL STATING:
"REIFB DSA-4-66-2643 OPENING 1030 AM EST 22 DEC 65 ENTER OUR BID FOR
FSN 6850-297-6653 ITEMS B-0004 THRU B-0009 FOB OUR PLANT JERSEY CITY NJ
$9.00/DRUM FOR ANY OR ALL QUANTITIES. TERMS 1/4 OF 1 PERCENT 10 DAYS
DELIVERY AS REQUIRED. THIS IS A SMALL BUSINESS MANUFACTURER. END
PRODUCT MEETS ALL REQUIREMENTS OF DOMESTIC MATERIAL. CONFIRMATION OF
BID WILL BE FORWARDED ON SIGNED BID FORMS AND AMENDMENT NO 1 TO IFB"
THE TELEGRAPHIC BID QUOTE OF $9.00 PER DRUM ON ITEM B WAS LOW.
OCTAGON PROCESS, INCORPORATED, SUBMITTED, ON THE FORMAL BID FORM, THE
SECOND LOW BID AT $9.64 PER DRUM.
THE SIGNED FORMAL BID OF CHEMICAL WAS RECEIVED AFTER BID OPENING IN
AN ENVELOPE MARKED ,CONFIRMATION OF TELEGRAPHIC BID.' THE ENVELOPE WAS
SENT BY CERTIFIED MAIL AND CONTAINED METER STAMPS DATED DECEMBER 21,
1965 (ONE DAY BEFORE BID OPENING). THE BIDDER WAS ASKED TO FURNISH ITS
POSTMARKED RECEIPT FOR CERTIFIED MAIL IN ORDER TO ESTABLISH THE TIME OF
MAILING, BUT ADVISED THAT IT HAD NOT OBTAINED A POSTMARKED RECEIPT FOR
THE CERTIFIED MAIL.
ITEM B WAS AWARDED TO OCTAGON PROCESS ON MARCH 30, 1966, CHEMICAL
BEING ADVISED THAT ITS TELEGRAPHIC BID HAD BEEN FOUND UNACCEPTABLE FOR
FAILURE TO STATE THAT THE BIDDER AGREED TO ALL THE TERMS, CONDITIONS AND
PROVISIONS OF THE INVITATION; AND THAT ITS SIGNED BID HAD NOT BEEN
MAILED IN TIME TO BE CONSIDERED FOR AWARD.
YOU ADVISE THAT ON FEBRUARY 11, 1966, AND THEN AGAIN ON MARCH 14,
1966, CHEMICAL WAS ASKED, AND IT AGREED, TO EXTEND THE ACCEPTANCE PERIOD
FOR ITS BID. IT IS YOUR CONTENTION THAT CHEMICAL'S FAILURE TO
INCORPORATE THE PRESCRIBED STATEMENT OF AGREEMENT IN ITS TELEGRAPHIC BID
GAVE THE CONTRACTING OFFICER, AT MOST, A PERMISSIVE RIGHT TO REJECT THE
BID; AND THAT THIS RIGHT WAS WAIVED WHEN THE BIDDER WAS ASKED TO EXTEND
THE ACCEPTANCE PERIOD FOR ITS BID. YOU FIND SUPPORT FOR YOUR VIEW FROM
THE LANGUAGE OF THE TELEGRAPHIC BID CLAUSE STATING THAT THE FAILURE TO
SUPPLY ALL OF THE INFORMATION "MAY NECESSITATE REJECTION OF THE BID.'
YOU FEEL THAT A CONTRACTING OFFICER SHOULD NOT BE ALLOWED TO REQUEST BID
EXTENSIONS UNDER THESE CIRCUMSTANCES ONLY TO FIND THAT THE BID IS
NONRESPONSIVE.
WE DO NOT SHARE YOUR VIEW AS TO THE EFFECT OF THE TIME EXTENSION ON
THE CHEMICAL BID. A BIDDER IS ASKED TO EXTEND THE ACCEPTANCE TIME ON
HIS BID SIMPLY BECAUSE THE CONTRACTING OFFICER NEEDS ADDITIONAL TIME TO
CONSIDER THE BID. THE BIDDER CAN REFUSE TO GRANT THE EXTENSION IF HE SO
CHOOSES. THERE IS NO REASON WHY A BIDDER SHOULD BE MISLED BY THE
REQUEST FOR AN EXTENSION. THE PHRASE "MAY NECESSITATE REJECTION OF THE
BID" AS IT APPEARS IN THE TELEGRAPHIC BID CLAUSE DOES NOT
SIGNIFY THAT THE CONTRACTING OFFICER HAS DISCRETION TO ACCEPT OR
REJECT TELEGRAPHIC BIDS WITH OMISSIONS. RATHER IT MEANS THAT THE
FAILURE TO FURNISH REQUIRED INFORMATION MAY RENDER THE BID NONRESPONSIVE
AND INELIGIBLE FOR CONSIDERATION.
CHEMICAL'S TELEGRAPHIC BID WAS PROPERLY REJECTED IN ACCORDANCE WITH
OUR DECISION B-155119, DECEMBER 1, 1964, (COPY ENCLOSED) HOLDING THAT
THE ABSENCE OF THE PRESCRIBED STATEMENT OF AGREEMENT IN A TELEGRAPHIC
BID MADE THE BID NONRESPONSIVE. ACCORDINGLY, YOUR PROTEST IS DENIED.
B-158998, JUL. 11, 1966
TO SPACE AVIONICS, INCORPORATED:
WE REFER AGAIN TO YOUR LETTER OF APRIL 18, 1966, PROTESTING AGAINST A
PROPOSED PROCUREMENT ACTION BY THE DEPARTMENT OF THE NAVY, BUREAU OF
SHIPS.
THE PROTEST WHICH YOU HAVE MADE WAS BROUGHT BEFORE OUR OFFICE AFTER
THE PROCUREMENT BY THE NAVAL SHIP SYSTEMS COMMAND (FORMERLY BUREAU OF
SHIPS), UNDER RFP 1621C1D-67090, OF 100 AN/PQS-1 SONAR DETECTING SETS
FROM BURNETT ELECTRONICS INCORPORATED, SAN DIEGO, CALIFORNIA. THE
PROCUREMENT UNDER THE RFP FOLLOWED THE ISSUANCE OF INVITATION FOR BIDS
NO. 600-112-66'S WHICH CALLED FOR A QUANTITY OF 152 AN/PQS-1 SONAR
DETECTING SETS, 50 PERCENT ON A LABOR SURPLUS SET-ASIDE. THE IFB WAS
ISSUED SEPTEMBER 13, 1965, AND OPENED OCTOBER 20, 1965, BUT NO AWARD HAD
EVER BEEN MADE. IN YOUR LETTER OF APRIL 18, 1966, IT IS STATED:
"WE REQUEST, THEREFORE, THAT YOUR OFFICE TAKE INVESTIGATIVE ACTION TO
DETERMINE WHY AN AWARD COULD NOT BE MADE IN A SIX MONTH PERIOD TO ONE OF
THE BIDDERS UNDER IFB 600-112-66-S, SINCE FIVE OF THE BIDDERS WERE LOWER
THAN BURNETT, WITH WHOM THE PRESENT NEGOTIATION IS PROPOSED. WE FURTHER
FEEL THAT THE ISSUANCE OF THE REQUEST FOR PROPOSAL TO BURNETT SHOULD BE
STOPPED.'
THE DEPARTMENT OF THE NAVY, NAVAL SHIP SYSTEMS COMMAND, HAS INFORMED
US IN REPLY TO OUR REQUEST FOR A REPORT ON THE MATTER THAT THERE HAS
BEEN CONTINUING DESIRE TO MAKE AN AWARD UNDER THIS IFB. EIGHT BIDS WERE
RECEIVED. YOUR CORPORATION WAS THE FOURTH LOWEST BIDDER. BECAUSE THE
COMMAND HAD SUBSTANTIAL DOUBTS CONCERNING THE CAPABILITY OF THE FOUR
LOWEST BIDDERS IT WAS NECESSARY TO SIMULTANEOUSLY CONDUCT PRE-AWARD
SURVEYS ON ALL FOUR FIRMS. THE LOW BIDDER, DERO RESEARCH AND
DEVELOPMENT CORPORATION, HUNTINGTON, NEW YORK, MADE A MISTAKE IN ITS BID
AND THE BID COULD NOT BE ACCEPTED. THE SECOND LOW BIDDER, FUTURONICS
CORPORATION, PORT WASHINGTON, NEW YORK, WAS DETERMINED BY THE COMMAND
NOT TO BE A RESPONSIBLE BIDDER, BASED UPON THE FIRM'S CAPACITY AND
CREDIT STATUS. THE MATTER WAS REFERRED TO THE SMALL BUSINESS
ADMINISTRATION, PURSUANT TO ASPR 1-705.4 (C) AND SECTION 8 (B) (7) OF
THE SMALL BUSINESS ACT, 15 U.S.C. 637 (B) (7). THE SMALL BUSINESS
ADMINISTRATION BY LETTER TO THE COMMAND DATED JUNE 16, 1966, CERTIFIED
THAT FUTURONICS CORPORATION IS COMPETENT, AS TO CAPACITY AND CREDIT, TO
PERFORM THE PROPOSED PROCUREMENT COVERED BY THE ABOVE-REFERENCED
INVITATION FOR BIDS. THE COMMAND, THEREFORE, HAS MADE AN AWARD OF
CONTRACT TO FUTURONICS CORPORATION.
WE WOULD LIKE TO POINT OUT THAT THE PROCUREMENT OF 100 AN/PQS-1 SONAR
DETECTING SETS FROM BURNETT IS UNRELATED TO THE IFB. ACCORDING TO THE
REPORT WHICH WE RECEIVED FROM THE COMMAND:
"* * * THIS REQUIREMENT IS IN ADDITION TO THAT REFLECTED IN THE IFB.
EVEN IF IT HAD BEEN POSSIBLE TO MAKE AWARD UNDER THE IFB EARLIER, IT
WOULD HAVE BEEN NECESSARY TO CONTRACT WITH BURNETT FOR THIS
SUPPLEMENTARY REQUIREMENT. THESE SETS (THOSE PROCURED UNDER THE RFP)
ARE URGENTLY REQUIRED FOR SUPPORT OF SOUTHEAST ASIA OPERATIONS, WITH
DELIVERIES COMMENCING IN SEPTEMBER 1966. (THE PROCUREMENT WAS
NEGOTIATED PURSUANT TO THE AUTHORITY OF 10 U.S.C. 2304 (A) (2).) * * *
BURNETT IS THE ONLY FIRM CAPABLE OF MEETING THE URGENT DELIVERY
SCHEDULE. * * * BECAUSE OF THE TIME NECESSARY TO RECEIVE APPROVAL OF
PREPRODUCTION EQUIPMENT, A PERIOD OF APPROXIMATELY NINETEEN (19) MONTHS
FROM THE EFFECTIVE DATE OF THE CONTRACT * * * WOULD BE REQUIRED
(FOLLOWING AWARD OF THE IFB) BEFORE ANOTHER SUPPLIER COULD COMMENCE
DELIVERIES. THUS, EVEN IF AWARD UNDER THE IFB COULD HAVE BEEN MADE 60
DAYS AFTER OPENING OF BIDS, THAT IS BY 20 DECEMBER 1965, DELIVERIES OF
PRODUCTION EQUIPMENT UNDER THE CONTRACT COULD NOT COMMENCE UNTIL
APPROXIMATELY JULY 1967, 10 MONTHS AFTER THE SEPTEMBER 1966 DATE
REQUIRED BY THE BURNETT CONTRACT.
"IN SUMMARY THE AWARD OF THE NEGOTIATED CONTRACT TO BURNETT IS A
SEPARATE ACTION FROM THE IFB, AND THE CONTRACT WAS NOT AFFECTED BY ANY
DELAYS ASSOCIATED WITH THE IFB. * * *.'
WE HAVE NO LEGAL BASIS TO CONCLUDE THAT THE NEGOTIATED PROCUREMENT
WITH BURNETT ELECTRONICS WAS NOT WARRANTED. ACCORDINGLY, YOUR PROTEST
AGAINST IT IS DENIED.
YOUR INTEREST IN THE CAUSES OF THE DELAY IN AWARD OF THE IFB, WHICH
PROMPTED OUR INVESTIGATION INTO THE MATTER, IS APPRECIATED AND WE TRUST
THAT THIS LETTER IS A SATISFACTORY ANSWER TO YOUR INQUIRIES.
B-159304, JUL. 11, 1966
TO CALIFORNIA PUMP AND WELLS:
THIS IS IN RESPONSE TO YOUR LETTERS OF JUNE 16 AND 17, 1966, WITH
ENCLOSURES, WITH FURTHER REFERENCE TO YOUR REQUEST THAT WE CONSIDER YOUR
CLAIM FOR MONIES ALLEGEDLY OWED YOU BY THE HARTFORD INSURANCE GROUP, SAN
FRANCISCO, CALIFORNIA, SURETY ON PAYMENT BOND N-3240884, OBTAINED BY
PRECISION DRILLING COMPANY, SANTA ROSA, CALIFORNIA, UNDER CONTRACT NO.
DA 04-036-AMC-28 (M). THIS MATTER WAS THE SUBJECT OF OUR DECISION TO
YOU DATED JUNE 13, 1966, WHICH DENIED YOUR CLAIM.
THE FACTS AND CIRCUMSTANCES INVOLVED IN YOUR CLAIM WERE FULLY
DISCUSSED IN OUR DECISION AND NEED NOT BE REPEATED HERE. YOUR RECENT
LETTERS, HOWEVER, DO RAISE AN ISSUE WHICH MERITS CONSIDERATION. IT IS
YOUR CONTENTION THAT THE PRIME CONTRACTOR ON THE SIERRA ARMY DEPOT
PROJECT WAS NOT PROPERLY LICENSED BY THE CALIFORNIA CONTRACTORS LICENSE
BOARD, THEREFORE THE GOVERNMENT, BY ACCEPTING HIS BID, BECAME A PARTY TO
A CONTRACT CONTAINING WORK THAT BELONGED TO A SEPARATE CONTRACTOR AND
NECESSITATING A SEPARATE PAYMENT. YOU ALLEGE THAT SINCE IT WAS YOUR
CORPORATION THAT PERFORMED THE WORK WHICH THE PRIME CONTRACTOR WAS NOT
LICENSED TO DO, THE GOVERNMENT SHOULD MAKE PAYMENT OF THE SUM CLAIMED
DIRECTLY TO YOU.
YOUR ATTENTION IS INVITED TO A 1956 UNITED STATES SUPREME COURT CASE,
LESLIE MILLER, INC. V. ARKANSAS, 352 U.S. 187, WHERE THE COURT HELD
THAT A STATE LAW LICENSING CONTRACTORS CANNOT BE ENFORCED AGAINST ONE
SELECTED BY FEDERAL AUTHORITIES FOR WORK ON AN AIR FORCE BASE. THE
COURT, ON PAGE 190, STATED:
"* * * SUBJECTING A FEDERAL CONTRACTOR TO THE ARKANSAS CONTRACTOR
LICENSE REQUIREMENTS WOULD GIVE THE STATE'S LICENSING BOARD A VIRTUAL
POWER OF REVIEW OVER THE FEDERAL DETERMINATION OF ,RESPONSIBILITY" AND
WOULD THUS FRUSTRATE THE EXPRESSED FEDERAL POLICY OF SELECTING THE
LOWEST RESPONSIBLE BIDDER. * * *.'
THE BASIS FOR SETTLEMENT OF CLAIMS BY OUR OFFICE MUST BE FOUNDED ON A
DETERMINATION OF THE LEGAL LIABILITY OF THE UNITED STATES UNDER THE
FACTUAL SITUATION INVOLVED AS ESTABLISHED BY THE WRITTEN RECORD, CODE 4
OF FEDERAL REGULATIONS 31.7. AS WE POINTED OUT IN OUR DECISION DATED
JUNE 13, 1966, THE CONTRACT TO PERFORM WORK AT THE DEPOT BETWEEN YOU AND
PRECISION DRILLING COMPANY CREATES NO PRIVITY OF CONTRACT BETWEEN YOU
AND THE UNITED STATES. THEREFORE, THE UNITED STATES IS UNDER NO LEGAL
LIABILITY TO YOU UNDER ITS CONTRACT WITH PRECISION DRILLING COMPANY.
ANY REMEDY WHICH YOU MAY HAVE MUST BE BASED ON THE LEGAL LIABILITY
CREATED BY YOUR CONTRACT WITH PRECISION DRILLING COMPANY, PURSUED IN
COURTS OF THE PROPER JURISDICTION.
B-159442, JUL. 11, 1966
TO MR. JOHN HENRY BURNS:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 7, 1966, IN EFFECT
REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR BACK PAY AND OTHER
BENEFITS WHICH YOU BELIEVE ARE DUE YOU INCIDENT TO YOUR SERVICE AS AN
ENLISTED MEMBER OF THE UNITED STATES ARMY AT THE TIME OF YOUR DISCHARGE
ON JANUARY 17, 1946. WE ALSO HAVE BEFORE US YOUR LETTER OF JUNE 18,
1966.
OUR RECORD SHOWS THAT ON JANUARY 27, 1966, YOU ADDRESSED A LETTER TO
THE UNITED STATES ARMY, WASHINGTON, D.C., IN WHICH YOU STATED, AMONG
OTHER THINGS, THAT YOUR FIRST WIFE, ELLEN KING BURNS, WAS DIVORCED FROM
YOU ON JUNE 18, 1943, WHILE YOU WERE STILL IN THE ARMY, AND INDICATED
THAT AS A RESULT OF SUCH DIVORCE THERE MAY HAVE BEEN SOME "BACK TIME
PAY" DUE YOU. YOUR LETTER WAS FORWARDED TO THIS OFFICE (GENERAL
ACCOUNTING OFFICE) BY THE FINANCE CENTER, U.S. ARMY, BECAUSE SECTION 305
OF THE ACT OF JUNE 10, 1921, CH. 18, 42 STAT. 24, 31 U.S.C. 71,
PROVIDES, GENERALLY, THAT ALL CLAIMS AND DEMANDS WHATEVER BY THE
GOVERNMENT OF THE UNITED STATES OR AGAINST IT, AND ALL ACCOUNTS WHATEVER
IN WHICH THE GOVERNMENT OF THE UNITED STATES IS CONCERNED, EITHER AS
DEBTOR OR CREDITOR, SHALL BE SETTLED AND ADJUSTED IN THE GENERAL
ACCOUNTING OFFICE. THE ACT OF JUNE 10, 1921, IS RESTRICTED, HOWEVER, BY
THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A,
WHICH PROVIDES, WITH EXCEPTIONS NOT HERE MATERIAL, THAT EVERY CLAIM
AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE AS
THERE SPECIFIED, SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE
RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE
DATE THE CLAIM FIRST ACCRUED.
YOUR CLAIM WAS RECEIVED IN THIS OFFICE ON FEBRUARY 23, 1966, A DATE
MORE THAN 10 YEARS AFTER THE DATE OF ITS FIRST ACCRUAL, JANUARY 17, 1946
(DATE OF YOUR DISCHARGE FROM THE ARMY). SINCE THE CLAIM WAS BARRED FROM
CONSIDERATION BY SECTION 1 OF THE ACT OF OCTOBER 9, 1940, OUR CLAIMS
DIVISION, IN ACCORDANCE WITH THE PROCEDURE PRESCRIBED IN SECTION 2 OF
THAT ACT, RETURNED THE CLAIM TO YOU WITH A COPY OF THE ACT.
SUBSEQUENTLY, OUR CLAIMS DIVISION IN A LETTER DATED APRIL 26, 1966,
FULLY EXPLAINED TO YOU WHY UNDER THE PROVISIONS OF THE 1940 ACT YOUR
CLAIM COULD NOT BE CONSIDERED. ALSO, YOU WERE ADVISED IN THAT LETTER
THAT THIS OFFICE HAS NO JURISDICTION OVER MATTERS PERTAINING TO A FORMER
MILITARY MEMBER'S ENTITLEMENT TO A PENSION OR BENEFITS UNDER LAWS
ADMINISTERED BY THE VETERANS ADMINISTRATION FOR BENEFITS UNDER LAWS
ADMINISTERED BY THE SOCIAL SECURITY ADMINISTRATION.
THIS OFFICE IS WITHOUT AUTHORITY TO REVIEW OR OTHERWISE CONSIDER THE
AWARDS MADE IN YOUR FAVOR BY THE VETERANS ADMINISTRATION AND SOCIAL
SECURITY ADMINISTRATION SINCE UNDER APPLICABLE LAWS SUCH
AGENCIES ARE VESTED WITH FULL JURISDICTION TO DETERMINE YOUR
ENTITLEMENTS TO THE BENEFITS PAYABLE UNDER THOSE LAWS. THEREFORE, ANY
FURTHER INQUIRIES YOU MAY HAVE REGARDING YOUR AWARDS SHOULD BE DIRECTED
EITHER TO THE VETERANS ADMINISTRATION OR THE SOCIAL SECURITY
ADMINISTRATION AS THE CASE MAY BE. AS YOU WERE PREVIOUSLY ADVISED,
CONSIDERATION OF YOUR CLAIM FOR BACK PAY IS GOVERNED BY THE ACT OF
OCTOBER 9, 1940. CONSIDERATION OF THAT CLAIM ON ITS MERITS WOULD BE
AUTHORIZED ONLY IF YOUR CLAIM HAD BEEN FILED IN THIS OFFICE PRIOR TO
JANUARY 17, 1956, THAT IS, WITHIN 10 YEARS AFTER THE DATE OF YOUR
DISCHARGE FROM THE ARMY. SINCE YOUR CLAIM WAS NOT RECEIVED HERE UNTIL
FEBRUARY 23, 1966, THIS OFFICE IS PRECLUDED BY THE ACT OF OCTOBER 9,
1940, FROM CONSIDERING IT. FURTHERMORE, NO MATTER HOW MERITORIOUS A
CLAIM MAY BE, NEITHER THIS OFFICE NOR ANY OTHER GOVERNMENT OFFICE MAY
MAKE EXCEPTIONS TO THE ACT, NOR DOES IT CONFER JURISDICTION UPON THIS
OFFICE TO WAIVE ITS PROVISIONS IN ANY PARTICULAR CASE BECAUSE OF THE
CIRCUMSTANCES SURROUNDING THE DELAY IN THE FILING OF THE CLAIM.
ACCORDINGLY, THERE IS NO ACTION WHICH WE MAY TAKE ON YOUR CLAIM.
FURTHER CORRESPONDENCE FROM YOU CONTAINING NOTHING TO SERVE AS A
BASIS FOR RECONSIDERATION OF YOUR CLAIM, THAT IS, INFORMATION OR
EVIDENCE CLEARLY ESTABLISHING THAT YOU FILED A CLAIM IN THE GENERAL
ACCOUNTING OFFICE PRIOR TO JANUARY 17, 1956, WOULD SERVE NO USEFUL
PURPOSE AND WILL BE FILED WITHOUT REPLY.
B-159562, JUL. 11, 1966
TO MR. JOSEPH C. MCRAE:
REFERENCE IS MADE TO YOUR LETTER DATED APRIL 23, 1966, ADDRESSED TO
THE PRESIDENT OF THE UNITED STATES, WHICH WAS RECENTLY FORWARDED TO THIS
OFFICE BY THE VETERANS ADMINISTRATION, CONCERNING YOUR CLAIM FOR BASIC
PAY AND COMBAT PAY WHICH YOU CONTEND IS DUE YOU INCIDENT TO YOUR SERVICE
IN KOREA WITH THE UNITED STATES ARMY.
THE RECORD SHOWS THAT YOU WERE ADVISED BY LETTERS FROM OUR CLAIMS
DIVISION DATED APRIL 4 AND APRIL 21, 1966, THAT THIS OFFICE WAS WITHOUT
AUTHORITY TO CONSIDER YOUR CLAIM SINCE IT WAS NOT RECEIVED IN THIS
OFFICE WITHIN THE TEN-YEAR LIMITATION PERIOD PRESCRIBED IN THE ACT OF
OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, AS AMENDED, 31 U.S.C. 71A.
THAT ACT READS IN PERTINENT PART:
"/1) EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE
BY THE GENERAL ACCOUNTING OFFICE * * * SHALL BE FOREVER BARRED UNLESS
SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN
AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN
TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED * * *.'
YOU CONTEND THAT SINCE THE U.S. ARMY FINANCE CENTER, INDIANAPOLIS,
INDIANA, FAILED TO PROCESS AND PROMPTLY FORWARD TO US THE EARLIER CLAIM
YOU FILED IN 1964, THAT IS A FACTOR TO BE TAKEN INTO CONSIDERATION IN
DETERMINING YOUR RIGHTS IN THIS MATTER.
THIS OFFICE HAS NO RECORD OF ANY CLAIM PRESENTED ON YOUR BEHALF PRIOR
TO YOUR LETTER DATED JANUARY 22, 1966, WHICH WAS RECEIVED HERE MARCH 28,
1966. IF YOU FILED A CLAIM WITH ANOTHER AGENCY OF THE FEDERAL
GOVERNMENT AND SUCH CLAIM WAS NOT FORWARDED FOR OUR CONSIDERATION, SUCH
ACTION OR LACK OF ACTION COULD NOT AFFECT THE OPERATION OF THE ACT OF
OCTOBER 9, 1940, IN ANY WAY.
BY THE PROVISIONS OF THAT STATUTE, IT IS NECESSARY FOR THIS OFFICE TO
RECEIVE A CLAIM BEFORE THE TEN-YEAR PERIOD HAS ELAPSED IF SUCH CLAIM IS
TO BE RECOGNIZED. SINCE YOU WERE DISCHARGED FROM THE SERVICE ON MARCH
20, 1955, YOUR CLAIM WOULD HAVE TO HAVE BEEN RECEIVED IN THIS OFFICE ON
OR BEFORE MARCH 20, 1965. ACCORDINGLY, CONSIDERATION OF YOUR CLAIM IS
SPECIFICALLY PROHIBITED BY LAW AND THE ACTION TAKEN BY OUR CLAIMS
DIVISION IN LETTERS OF APRIL 4 AND APRIL 21, 1966, IS SUSTAINED.
B-155290, JUL. 8, 1966
TO LAW OFFICES, CAJULIS, MINTU AND VITANZO:
THIS IS IN REPLY TO YOUR LETTER OF JUNE 8, 1966, WITH ENCLOSURES, IN
FURTHER REFERENCE TO THE CLAIM OF MR. BENJAMIN S. GARCIA FOR OVERTIME
COMPENSATION FOR ALLEGEDLY HAVING BEEN REQUIRED TO REPORT 30 MINUTES
PRIOR TO THE START OF HIS TOUR OF DUTY AS AN EMPLOYEE (SECURITY GUARD)
OF THE DEPARTMENT OF THE AIR FORCE, CAMP CAVITE, PHILIPPINES, FROM
DECEMBER 5, 1947, TO FEBRUARY 23, 1954. THE CLAIM WAS DISALLOWED BY OUR
CLAIMS DIVISION SETTLEMENT OF MAY 20, 1958, AND, UPON REVIEW, WAS
SUSTAINED ON THREE DIFFERENT OCCASIONS.
YOUR CLIENT'S CLAIM WAS DISALLOWED AND THE DISALLOWANCE SUSTAINED BY
OUR DECISIONS OF DECEMBER 28, 1964, MAY 19, 1965, AND SEPTEMBER 3, 1965,
PRIMARILY UPON THE GROUNDS THAT THE EMPLOYING DEPARTMENT HAD DETERMINED
THAT THE EARLY REPORTING TIME OF SECURITY GUARDS WAS NOT CONSIDERED AS
COMPENSABLE TIME UNDER LOCAL LAW AND CUSTOM, AND THAT SUCH
ADMINISTRATIVE DETERMINATION WAS BINDING UPON US IN THE SETTLEMENT OF
THE SUBJECT OVERTIME CLAIM. WE ALSO SAID IN OUR LETTER OF SEPTEMBER 3,
1965, TO YOU, THAT OUR ATTENTION HAD NOT BEEN DIRECTED TO, NOR HAD WE
FOUND, ANY DECISION BY APPROPRIATE PHILIPPINE AUTHORITY CONSTRUING THE
PHILIPPINE EIGHT-HOUR LAW WHICH REQUIRED A DIFFERENT CONCLUSION. WITH
YOUR CURRENT LETTER YOU ENCLOSED A LETTER OF FEBRUARY 14, 1966, FROM THE
UNDERSECRETARY, DEPARTMENT OF LABOR, REPUBLIC OF THE PHILIPPINES,
WHEREIN REFERENCE IS MADE TO A DECISION OF THE SUPREME COURT IN THE CASE
OF PRICE STABILIZATION CORPORATION VS. CIR AND PRISCO WORKERS' UNION, ET
AL., G.R. L-13806, MAY 23, 1960, ORDERING THE PAYMENT OF OVERTIME
COMPENSATION TO THE SECURITY GUARDS OF THE PRISCO FOR REPORTING ONE HOUR
BEFORE ACTUAL GUARD DUTY AS REQUIRED.
HAVING IN MIND THAT THE CITED DECISION WAS NOT RENDERED UNTIL 1960,
THE CONCLUSION IS NOT WARRANTED THAT THE DEPARTMENT OF THE AIR FORCE WAS
IN ERROR IN DETERMINING THAT THE 30-MINUTE PERIOD HERE IN QUESTION WAS
NOT PART OF THE WORKING DAY UNDER LOCAL CUSTOM AND USAGE DURING THE
PERIOD COVERED BY YOUR CLIENT'S CLAIM (1947-1954). ON THE CONTRARY, ONE
MAY JUSTIFIABLY INFER THAT THE INCLUSION OF EARLY REPORTING TIME IN THE
WORKING DAY OF SECURITY GUARDS DID NOT BECOME PART OF PHILIPPINE
JURISPRUDENCE AT LEAST UNTIL THE 1960 DECISION AND, THEREFORE, WAS NOT A
PART OF LOCAL LAW TO BE TAKEN INTO ACCOUNT IN FIXING THE COMPENSATION OF
EMPLOYEES IN THE PHILIPPINES WHO ARE SUBJECT TO THE EXCLUSION PROVISIONS
OF SECTION 102 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT.
296, 5 U.S.C. 902 (B), CITED IN OUR DECISION OF MAY 19, 1965, TO YOUR
MR. VITANZO.
THE UNDERSECRETARY ALSO SAID IN HIS LETTER THAT THE COURT OF
INDUSTRIAL RELATIONS HELD IN THE CASE OF NATIONAL LABOR UNION VS.
GOTAMCO LUMBER CO., CIR, NO. 104-V, JULY 9, 1949 THAT "ALTHOUGH THE
LABORERS CAN REST COMPLETELY AND MAY NOT BE ACTUALLY AT WORK IF THEY ARE
REQUIRED TO BE IN THEIR PLACE OF WORK BEFORE OR AFTER THE REGULAR
WORKING HOURS AND WITHIN THE CALL OF THEIR EMPLOYERS, THE TIME THEY STAY
IN THE PLACE OF WORK SHOULD NOT BE DISCOUNTED FROM THEIR WORKING HOURS.'
IT DOES NOT APPEAR FROM THE BRIEF SUMMARY GIVEN THAT THE EMPLOYEES THERE
INVOLVED WERE SECURITY GUARDS OR THAT THE REST PERIODS THERE INVOLVED
WERE ANALOGOUS TO THOSE HERE INVOLVED, AND, THEREFORE, THERE WOULD SEEM
TO HAVE BEEN NO OBLIGATION ON THE PART OF THE DEPARTMENT OF THE AIR
FORCE TO HAVE TAKEN THAT DECISION INTO ACCOUNT IN REGULATING THE
CONDITIONS OF EMPLOYMENT OF SECURITY GUARDS OF THAT DEPARTMENT. THE
PRISCO CASE DISCUSSED ABOVE WOULD SEEM TO INDICATE THAT THE LAW AS TO
THAT PARTICULAR TYPE OF EMPLOYMENT (SECURITY GUARD) WAS NOT SETTLED
UNTIL THE DECISION IN THAT CASE WAS RENDERED. THE ANNOTATION FOLLOWING
SECTION 18 OF TITLE 42 OF THE PHILIPPINE ANNOTATED LAWS, 1963 CUMULATIVE
SUPPLEMENT, IN THE CASE OF ISAAC PERAL BOWLING ALLEY V. UNITED
EMPLOYEES' WELFARE ASSO. (OCTOBER 30, 1957, NO. L-9831), INDICATES THAT
THE SUPREME COURT MAY HAVE DIFFERED WITH THE COURT OF INDUSTRIAL
RELATIONS ON THE MATTER OF CERTAIN NONWORK PERIODS ON THE EMPLOYER'S
PREMISES.
WHILE WE HAVE UNDERTAKEN TO GIVE YOU OUR OPINION CONCERNING THE CITED
COURT CASES, WE MUST EMPHASIZE THAT, FOR THE REASONS FULLY EXPLAINED IN
OUR DECISION OF MAY 19, 1965, THE HOURS OF WORK AND OVERTIME
COMPENSATION OF EMPLOYEES OF THE UNITED STATES GOVERNMENT OUTSIDE THE
CONTINENTAL LIMITS OF THE UNITED STATES WHO ARE PAID IN ACCORDANCE WITH
LOCAL NATIVE PREVAILING WAGE RATES FOR THE AREA IN WHICH EMPLOYED ARE
STRICTLY FOR REGULATION BY THE EMPLOYING AGENCY, AND THAT OUR OFFICE HAD
NO INDEPENDENT POWER OF REGULATION IN THOSE REGARDS.
AS WE POINTED OUT IN OUR LETTER OF DECEMBER 28, 1964, TO MR. GARCIA,
HIS CLAIM WAS NOT AN ISOLATED ONE. DURING THE YEAR 1957 WE RECEIVED A
LARGE NUMBER OF SIMILAR CLAIMS FROM SECURITY GUARDS IN THE MANILA AREA.
AT OUR REQUEST, THE DEPARTMENT OF THE AIR FORCE REINVESTIGATED THE
MATTER OF EARLY REPORTING PRACTICES IN THAT AREA. AS A RESULT OF THAT
INVESTIGATION, THE DEPARTMENT AGAIN CONCLUDED THAT LOCAL CUSTOM DID NOT
RECOGNIZE THE 30-MINUTE EARLY REPORTING PERIOD FOR SECURITY GUARDS AS
PART OF THE ESTABLISHED TOUR OF DUTY FOR PAY PURPOSES. IN THE
CIRCUMSTANCES WE REGARD THE DEPARTMENT'S DETERMINATION AS FINAL AND
CONCLUSIVE SO FAR AS CONCERNS THE SUBJECT TYPE OF CLAIM.
ACCORDINGLY, WE FIND NO BASIS FOR THE ALLOWANCE OF YOUR CLIENT'S
CLAIM, AND WE CANNOT PERCEIVE ANY POSSIBILITY THAT SUCH A BASIS WILL
ARISE IN THE FUTURE. THEREFORE, ANY FURTHER REQUESTS FOR REVIEW OF THIS
CLAIM WILL BE FILED WITHOUT REPLY.
B-155504, JUL. 8, 1966
TO THE SECRETARY OF THE INTERIOR:
REFERENCE IS MADE TO THE LETTER DATED APRIL 15, 1966, FROM THE DEPUTY
ASSISTANT SECRETARY OF THE INTERIOR RELATIVE TO THE REQUEST IN LETTERS
OF MARCH 9, AND MAY 4, 1966, FROM THE ATTORNEYS FOR FIREMAN'S FUND
INSURANCE COMPANY, COMPLETING SURETY ON GOVERNMENT CONTRACTS
14-10-0436-419 AND
14-10-0436-428 WITH H.ANDM. CONSTRUCTION COMPANY, FOR CLARIFICATION
AND RECONSIDERATION OF OUR DECISION B-155504, DATED NOVEMBER 16, 1965.
IN OUR EARLIER DECISION WE HELD THAT THE "UNEXPENDED CONTRACT
BALANCE" IN EACH CASE, AFTER BEING REDUCED BY THE LIQUIDATED DAMAGES FOR
DELAY IN COMPLETION OF CONTRACT, COULD BE PAID TO THE COMPLETING SURETY
UP TO ITS COST OF COMPLETION. WE ALSO STATED:
"* * * IN THE EVENT THAT THE GOVERNMENT HAS NO CLAIM AGAINST THE
PRINCIPAL, OR IF THERE IS A REMAINDER AFTER ACCOMPLISHING THE OFFSET,
THE TOTAL OF THE SUMS DUE THE PRINCIPAL, INCLUDING WITHHELD PERCENTAGES
AND UNPAID EARNED BALANCES, SHOULD BE PAID TO THE PRINCIPAL, OR AS IN
THE PRESENT CASES, WHERE THE PRINCIPAL IS BANKRUPT, TO THE TRUSTEE IN
BANKRUPTCY, ON HIS DEMAND.'
BECAUSE OF THE QUOTED SENTENCE SOME DOUBT HAS BEEN EXPRESSED AS TO
WHETHER IN OUR USE OF ,UNEXPENDED CONTRACT BALANCE" WE HAD INTENDED TO
INCLUDE WITHHELD PERCENTAGES AND UNPAID BALANCES EARNED BY THE DEFAULTED
CONTRACTOR. IT SHOULD BE CLEARLY UNDERSTOOD THAT WE INTENDED BY THE
TERM "UNEXPENDED CONTRACT BALANCE" TO INCLUDE ALL AMOUNTS UNEXPENDED,
WHETHER EARNED PRIOR OR SUBSEQUENT TO THE ORIGINAL CONTRACTOR'S DEFAULT.
THEREFORE, THE PERCENTAGES WITHHELD FROM AND THE UNPAID BALANCES EARNED
BY THE DEFAULTED CONTRACTOR ARE AVAILABLE TO SATISFY THE SURETY'S COSTS
OF COMPLETION. THE QUOTED SENTENCE, IN EXPLANATION OF THE POSITION
EXPRESSED IN 31 COMP. GEN. 103, WAS INTENDED ONLY TO APPLY TO THE
RELATIVE RIGHTS OF THE CONTRACTOR OR HIS SUCCESSORS AND THE SURETY UNDER
THE PAYMENT BONDS.
THE ATTORNEYS FOR THE SURETY ALSO CLAIM ANY CONTRACT AMOUNTS
REMAINING UNEXPENDED NECESSARY TO REIMBURSE THE SURETY FOR PAYMENTS MADE
UNDER THE PAYMENT BONDS. IN SUPPORT OF THE PAYMENT BOND CLAIMS THE
ATTORNEYS FOR THE SURETY CONTEND SUCH PAYMENTS ARE PROVIDED FOR UNDER
THE TAKE-OVER AGREEMENTS AND, FURTHER, ARE FOR PAYMENT UNDER THE
PRINCIPLE OF PEARLMAN V. RELIANCE INSURANCE O., 371 U.S. 132 (1962).
SO FAR AS CONCERNS THE TAKE-OVER AGREEMENTS, WE CANNOT AGREE THAT
THEY SUPPORT THE PAYMENT BOND CLAIMS, AND ASSUMING ARGUENDO THAT THEY
DID, WE QUESTION THE VALIDITY OF SUCH AN AGREEMENT. SEE 31 COMP. GEN.
103.
AS TO PEARLMAN, WE HAD OCCASION TO CONSIDER A SIMILAR PAYMENT BOND
CLAIM IN B-150606, MARCH 7, 1963, WHEN WE STATED:
"IN THE PEARLMAN CASE THE COURT WAS ABLE CONCLUSIVELY TO ADJUDICATE
THE RIGHTS OF ALL OF THE INTERESTED PARTIES CONCERNED. NO SUCH FINAL
ADJUDICATION WOULD, HOWEVER, RESULT FROM ADMINISTRATIVE DISPOSITION OF
THE MATTER. IN THIS CONNECTION IT SHOULD BE NOTED THAT THE RIGHT OF THE
SURETY TO SUBROGATION IS AN EQUITABLE RIGHT AND IS PREDICATED UPON THE
PAYMENT OF ALL CLAIMS FOR LABOR AND MATERIALS ARISING UNDER THE
CONTRACT. UNITED STATES V. NATIONAL SURETY COMPANY, 254 U.S. 73
(1920). ASCERTAINMENT OF THE FACTS IN THIS RESPECT APPEARS TO BE A
MATTER FOR JUDICIAL RATHER THAN ADMINISTRATIVE COGNIZANCE AND, SINCE THE
ADMINISTRATIVE DECISION COULD NOT BE CONSIDERED RES JUDICATA, THE
GOVERNMENT MIGHT BE SUBJECT TO DOUBLE LIABILITY SHOULD ANOTHER CLAIMANT
APPEAR IN THE FUTURE.
"SINCE IN THIS CASE THE CLAIM OF THE SURETY IS DISPUTED BY THE
TRUSTEE, WE DO NOT FEEL THAT WE CAN PROPERLY AUTHORIZE PAYMENT TO EITHER
THE SURETY OR THE TRUSTEE EXCEPT PURSUANT TO AGREEMENT OF THE PARTIES OR
TO AN ORDER OF A COURT OF APPROPRIATE JURISDICTION. IN ORDER TO HAVE
THE MATTER RESOLVED AS PROMPTLY AS POSSIBLE, THE SURETY AND TRUSTEE MAY
BE ADVISED THAT, IF THE SURETY AGREES, THE GOVERNMENT WILL TURN THE
AMOUNT AT ISSUE OVER TO THE TRUSTEE SO THAT THE SURETY MAY PURSUE ITS
REMEDY IN THE BANKRUPTCY COURT. OTHERWISE PAYMENT SHOULD BE WITHHELD
PENDING JUDICIAL DETERMINATION OF THE RIGHTS OF THE PARTIES IN SUCH
PROCEEDINGS AS THEY, OR EITHER OF THEM, MAY CHOOSE TO INSTITUTE.'
ACCORDINGLY, ADDITIONAL PAYMENTS MAY BE MADE TO THE COMPLETING SURETY
FROM WITHHELD AND UNPAID AMOUNTS OTHERWISE DUE THE DEFAULTED CONTRACTOR
FOR WORK PERFORMED PRIOR TO DATE OF TAKEOVER BY THE SURETY, NOT TO
EXCEED THE UNRECOVERED EXPENSES OF THE SURETY IN COMPLETING THE
CONTRACTS. HOWEVER, NO PAYMENT OF THE REMAINING BALANCES HELD BY THE
GOVERNMENT AS STAKEHOLDER SHOULD BE PAID EXCEPT UPON AGREEMENT BETWEEN
THE SURETY AND THE TRUSTEE IN BANKRUPTCY OR JUDGMENT OF A COURT OF
COMPETENT JURISDICTION. CF. NEWARK INSURANCE COMPANY V. UNITED STATES,
144 CT.CL. 655, 169 F.SUPP. 955. TO THIS EXTENT OUR DECISION OF
NOVEMBER 16, 1965, IS MODIFIED.
A COPY OF THIS LETTER IS BEING FURNISHED TO THE ATTORNEYS FOR
FIREMAN'S FUND INSURANCE COMPANY, SURETY.
B-158879, JUL. 8, 1966
TO SOUTHEASTERN OKLAHOMA BUILDING TRADES COUNCIL:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 29, 1966, WITH ENCLOSURES,
ALLEGING CERTAIN IRREGULARITIES IN THE AWARDS OF CONSTRUCTION CONTRACTS
BY THE CITY OF MUSKOGEE, OKLAHOMA, UNDER A GRANT FROM THE COMMUNITY
FACILITIES ADMINISTRATION, HOUSING AND HOME FINANCE AGENCY. YOU ALLEGE
THAT THE BIDDING ON THESE CONSTRUCTION CONTRACTS WAS NOT COMPETITIVE AND
THAT THE EMPIRE CONSTRUCTION COMPANY, AND MCMICHAEL PAVING CO. HAD AN
ADVANTAGE OVER THE OTHER CONTRACTORS.
BY LETTER OF JUNE 16, 1966, THE OFFICE OF METROPOLITAN DEVELOPMENT,
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, TRANSMITTED A REPORT TO
THIS OFFICE CONCERNING THE SITUATION IN WHICH YOU ARE INTERESTED. THE
FOLLOWING FACTS ARE ELICITED FROM THAT REPORT:
THE MATTER IN QUESTION AROSE IN CONNECTION WITH AN ACCELERATED PUBLIC
WORKS (APW) PROJECT, APW-OKLA.-18G. THE CITY OF MUSKOGEE, OKLAHOMA,
RECEIVED A 50 PERCENT GRANT-IN-AID UNDER THE PUBLIC WORKS ACCELERATION
ACT, 76 STAT. 541, ADMINISTERED BY THE COMMUNITY FACILITIES
ADMINISTRATION (CFA), AT THAT TIME A PART OF HOUSING AND HOME FINANCE
AGENCY. AT THE PRESENT TIME ITS FUNCTIONS ARE GENERALLY PERFORMED BY
THE OFFICE OF METROPOLITAN DEVELOPMENT, DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT. LONG BEFORE THE INCEPTION OF THE APW PROGRAMS, CFA HAD
ESTABLISHED PROCEDURES WHEREBY WAGE RATE DETERMINATIONS WERE OBTAINED.
GENERALLY, A SPECIFIC WAGE RATE DETERMINATION WAS REQUESTED FROM THE
DEPARTMENT OF LABOR FOR EACH PROJECT, WITH INFORMATION BEING SUPPLIED BY
THE REGIONAL OFFICE AS TO THE TYPE OF PROJECT INVOLVED AND ITS LOCATION.
WHEN ISSUED, THE DETERMINATION WAS FORWARDED TO THE APPLICANT AND WAS
INCORPORATED BY THE APPLICANT, ALONG WITH STATE WAGE DETERMINATION WHERE
REQUIRED BY STATE LAW, INTO THE BID DOCUMENTS AND SUBSEQUENTLY INTO THE
CONTRACT DOCUMENTS.
THIS ESTABLISHED PROCEDURE WAS VARIED FOR THE APW PROGRAM FOR SEVERAL
REASONS. SINCE THE STATED PURPOSE OF THE APW ACT WAS TO ACCELERATE THE
CONSTRUCTION OF NEEDED PUBLIC WORKS, THE CUSTOMARY PERIOD OF FROM THIRTY
TO FORTY-FIVE DAYS FOR THE ISSUANCE OF WAGE DETERMINATIONS APPEARED
OVERLY LONG IN LIGHT OF PROGRAM OBJECTIVES. IN ADDITION TO THE TIME
ELEMENT, A LARGE NUMBER OF PROJECTS WERE INVOLVED, SO THAT A
PROJECT-BY-PROJECT DETERMINATION WOULD HAVE BURDENED THE OPERATIONS OF
THE DEPARTMENT OF LABOR. AS A RESULT OF MANY DISCUSSIONS, AN AGREEMENT
WAS REACHED WITH THE DEPARTMENT OF LABOR WHEREBY THE LATTER WOULD
FURNISH CFA WITH WAGE DETERMINATIONS ON A COUNTY BASIS. SUCH
COUNTY-WIDE DETERMINATIONS WERE NECESSARILY BROADER THAN THOSE USUALLY
ISSUED FOR SPECIFIC PROJECTS AND INCLUDED RATES FOR BOTH HIGHWAY AND
BUILDING CONSTRUCTION.
ACCORDING TO PROCEDURE AND AS INDICATED IN THE MATERIAL YOU
TRANSMITTED HERE, THE DETERMINATION FOR MUSKOGEE COUNTY WAS REPRODUCED
IN ITS ENTIRETY IN THE BID DOCUMENTS, WITH NO INDICATION OF WHETHER THE
BUILDING OR HIGHWAY RATES WOULD APPLY TO THE STREET PAVING PROJECT. ON
JULY 8, 1963, THE DATE SCHEDULED FOR THE OPENING OF BIDS, THE CONSULTANT
TELEPHONED THE CHIEF ENGINEER OF THE FORT WORTH REGIONAL OFFICE TO
OBTAIN HIS OPINION AS TO THE APPLICABLE SCALE. THE REGIONAL ENGINEER
GAVE HIS OPINION THAT THE HIGHWAY RATE WOULD PREVAIL. APPARENTLY,
SEVERAL INQUIRIES WERE MADE TO THE CITY ENGINEER AND CITY ENGINEERING
CONSULTANT BY PROSPECTIVE BIDDERS AS TO WHICH SCALE APPLIED. IT APPEARS
FROM THE DEPOSITIONS THAT THOSE BIDDERS WHO INQUIRED, AS WELL AS UNION
REPRESENTATIVES, WERE INFORMED THAT THE LOWER HIGHWAY RATE WAS
CONTROLLING. THE CONTRACTS WERE SUBSEQUENTLY AWARDED IN ACCORDANCE WITH
THIS INTERPRETATION.
THE PROJECT FILE INDICATES THAT THE ISSUE CONCERNING THE PREVAILING
SCALE CONTINUED AFTER THE AWARD OF THE CONTRACTS. IT APPEARS THAT
ATTORNEYS FOR THE CITY, THE UNION AND CERTAIN INTERESTED PERSONS PLACED
A CONFERENCE CALL TO THE DEPARTMENT OF LABOR AND WERE INFORMED THAT THE
BUILDING WAGE RATES WERE APPLICABLE TO THE CITY PROJECTS AND THAT THE
WAGE RATE DETERMINATION FOR THE CITY SHOULD NOT THEREFORE HAVE INCLUDED
THE HIGHWAY RATES. THE DEPARTMENT OF LABOR CONCLUDED, HOWEVER, THAT THE
CONTRACTORS HAVING BID ON THE COUNTY DETERMINATION UNDER THE ASSUMPTION
THAT THE HIGHWAY RATES APPLIED, THE HIGHER OR BUILDING RATES WOULD NOT
BE ENFORCED. IT APPEARS THAT THE CITY RESOLUTION OF NOVEMBER 10, 1947,
IN EFFECT REQUIRED THAT SPECIFICATIONS FOR PROJECTS AWARDED BY THE CITY
CONTAIN WAGE RATES AS DETERMINED BY THE DEPARTMENT OF LABOR FOR BUILDING
CONSTRUCTION.
IN VIEW THEREOF, THE OPINION EXPRESSED IN THE REGIONAL OFFICE AS TO
THE APPLICABILITY OF THE HIGHWAY RATE ON THE CITY PAVING PROJECT WAS,
UNDOUBTEDLY, ERRONEOUS. IT IS OBVIOUS THAT THE ISSUANCE OF COUNTY-WIDE
DETERMINATIONS WAS A TIME-SAVING DEVICE AND AGREED UPON IN ORDER TO MEET
CONSTRUCTION DEADLINES. ACCORDINGLY, WHEN THE CITY REQUESTED FURTHER
CLARIFICATION FROM THE REGIONAL OFFICE AFTER RECEIPT OF THE BLANKET
DETERMINATIONS, IT WOULD APPEAR THAT THE ENGINEER RENDERED AN OPINION
WITHOUT KNOWLEDGE OF ALL THE FACTS NECESSARY TO MAKE SUCH A DECISION.
THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT DOES NOT APPEAR TO BE
IN A POSITION TO SPECULATE AS TO THE REASONS WHY THE CITY AND ITS AGENTS
WITH KNOWLEDGE OF THE 1947 RESOLUTION DID NOT APPLY THE BUILDING
CONSTRUCTION RATE AND SO NOTE SUCH RATE AS APPLICABLE IN THE BID
DOCUMENTS. IT APPEARS THAT THIS ISSUE WAS RAISED BY THE PLAINTIFFS IN A
PETITION FILED IN THE DISTRICT COURT, MUSKOGEE COUNTY, OKLAHOMA, IN THE
CASE OF ED LOYD, C. W. JENKINS, HORACE BOREN, AND ALL PERSONS SIMILARLY
SITUATED V. CITY OF MUSKOGEE, OKLAHOMA, A MUNICIPAL CORPORATION, EMPIRE
CONSTRUCTION, INC., A CORPORATION, MUSKOGEE PAVING CO., A CORPORATION,
AND MCMICHAEL PAVING COMPANY, A CORPORATION. THE COURT, HOWEVER, FOUND
THAT THE CONTRACTS COVERING PROJECT APW-OKLA.-18G "WERE PROPERLY
INITIATED, CARRIED OUT, ADVERTISED, AWARDED AND ENTERED INTO, AND THAT
ALL OF THE STATUTORY REQUIREMENTS OF THE STATUTES OF THE STATE OF
OKLAHOMA AND THE ORDNANCES OF THE CITY OF MUSKOGEE * * * HAVE BEEN FULLY
AND COMPLETELY FOLLOWED AND COMPLIED WITH * * *.' IN VIEW OF THE
CIRCUMSTANCES AS OUTLINED ABOVE WE SEE NO VALID BASIS ON WHICH TO
DISAGREE WITH THE COURT'S CONCLUSION.
B-159281, JUL. 8, 1966
TO MR. LEONARD CURRERI:
THIS REFERS TO YOUR LETTER OF JUNE 18, 1966, IN EFFECT REQUESTING
RECONSIDERATION OF THAT PART OF OUR DECISION OF JUNE 14, 1966, B-159281,
TO YOU, WHICH DISALLOWED YOUR CLAIM FOR EXTRA PAY FOR WORKING ALL LEGAL
HOLIDAYS DURING THE PERIOD JANUARY 1942 THROUGH DECEMBER 1945, AS A
CIVILIAN EMPLOYEE OF THE NEW YORK NAVAL SHIPYARD.
THE REASON FOR THE DISALLOWANCE OF YOUR CLAIM FOR HOLIDAY PAY FOR THE
PERIOD INVOLVED WAS FULLY DISCUSSED IN OUR DECISION OF JUNE 14, 1966, TO
YOU, AND NEED NOT BE REPEATED HERE. YOU SAY THAT AFTER 1946 YOU
RECEIVED HOLIDAY PAY ON THE HOLIDAYS WORKED. WE EXPLAINED TO YOU IN OUR
DECISION OF JUNE 14, 1966, THAT IN THE ABSENCE OF A WAGE BOARD AGREEMENT
PROVIDING FOR EXTRA PAY FOR WAGE BOARD EMPLOYEES WHO ARE REQUIRED TO
WORK ON A LEGAL HOLIDAY THERE WAS NO AUTHORITY TO PAY EXTRA COMPENSATION
FOR SUCH WORK. EFFECTIVE JULY 1, 1946, THE DEPARTMENT OF THE NAVY
ISSUED REGULATIONS (APPARENTLY BASED ON AN AGREEMENT) AUTHORIZING EXTRA
PAY FOR WAGE BOARD EMPLOYEES WHO WERE REQUIRED TO WORK ON HOLIDAYS
FALLING WITHIN THEIR REGULAR TOUR OF DUTY. SEE NCPI 250.7-13I (REV. I,
AMEND. 5), DATED JUNE 20, 1946.
CONCERNING YOUR QUESTION WHETHER YOU COULD CHANGE YOUR RETIREMENT
FROM MANDATORY TO DISABILITY, THE RESPONSIBILITY FOR DETERMINING THE
TYPE OF RETIREMENT UNDER THE CIVIL SERVICE RETIREMENT ACT IS VESTED IN
THE CIVIL SERVICE COMMISSION. SEE 5 U.S.C. 2266. ANY FURTHER QUESTIONS
CONCERNING YOUR RETIREMENT SHOULD BE ADDRESSED TO THE DIRECTOR, BUREAU
OF RETIREMENT AND INSURANCE, UNITED STATES CIVIL SERVICE COMMISSION,
WASHINGTON, D.C. 20415.
THE PRIOR ACTION IN DISALLOWING YOUR CLAIM FOR EXTRA PAY FOR WORKING
ON HOLIDAYS IS SUSTAINED.
B-158401, JUL. 7, 1966
TO HOFFMAN ELECTRONICS CORPORATION:
REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 10, 1966, PROTESTING
AGAINST AWARD OF A CONTRACT TO REPUBLIC ELECTRONIC INDUSTRIES CORP.
AND/OR FALROCK CORPORATION UNDER INVITATION FOR BIDS NO. 33-657-66-222,
ISSUED BY AIR FORCE SYSTEMS COMMAND, AERONAUTICAL SYSTEMS DIVISION,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO.
THE BASIS FOR YOUR PROTEST UNDER THE SUBJECT PROCUREMENT IS THAT
REPUBLIC ELECTRONIC INDUSTRIES CORP., HEREINAFTER REFERRED TO AS
REPUBLIC, DID NOT MEET THE CRITERIA PRESCRIBED UNDER PARAGRAPH 1-903 OF
THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) IN ORDER FOR AN
AFFIRMATIVE DETERMINATION OF RESPONSIBILITY TO BE MADE BY THE
GOVERNMENT. PARTICULARLY YOU CONTEND THAT REPUBLIC, AS A SEPARATE
ENTITY, AS AN AFFILIATE OF BELOCK INSTRUMENTS CORPORATION, OR NOW AS AN
AFFILIATE OF FALROCK CORPORATION, HAS NOT AND DOES NOT MEET THE TEST OF
RESPONSIBILITY REQUIRED PRIOR TO A CONTRACT AWARD OF THE DOLLAR SIZE,
TECHNICAL COMPLEXITY, AND CRITICAL SCHEDULE REQUIREMENTS OF THE SUBJECT
PROCUREMENT. IN THIS CONNECTION, YOU POINT OUT PAST INSTANCES OF
REPUBLIC'S FINANCIAL DIFFICULTIES WHICH LED TO NEGATIVE FINDINGS OF
RESPONSIBILITY BY THE DEPARTMENT OF THE AIR FORCE ON OTHER PROCUREMENTS.
THE RECORD SHOWS THAT THE SUBJECT INVITATION WAS ISSUED ON DECEMBER
22, 1965, WITH A BID OPENING DATE OF JANUARY 4, 1966, AND SOLICITED BIDS
FOR FURNISHING CERTAIN INCREMENTAL QUANTITIES OF A RECEIVER-TRANSMITTER
SET, RT-471/ARN-65 TACAN SYSTEM. TWO BIDS WERE RECEIVED IN RESPONSE TO
THE INVITATION. REPUBLIC BID THE LOWER UNIT PRICE OF $7,485 EACH FOR
THE INCREMENTAL QUANTITY OF 125 UNITS, AND YOUR FIRM BID A UNIT PRICE OF
$8,070 FOR THE SAME QUANTITY. THEREAFTER, A PREAWARD SURVEY WAS
CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT,
GARDEN CITY, NEW JERSEY, TO ESTABLISH THE CAPABILITY OF REPUBLIC TO
PERFORM THE CONTRACT. AFTER A THOROUGH INVESTIGATION, WHICH INCLUDED
REVIEW AND EVALUATION OF THE HISTORICAL EXPERIENCE OF REPUBLIC'S
PERFORMANCE UNDER PRIOR GOVERNMENT CONTRACTS AS WELL AS ITS CURRENT
PERFORMANCE CAPABILITIES, THE DISTRICT SUBMITTED A REPORT WHICH WAS
FAVORABLE IN ALL RESPECTS, INCLUDING TECHNICAL AND FINANCIAL CAPABILITY,
AND WHICH RECOMMENDED THAT REPUBLIC BE FAVORABLY CONSIDERED FOR THIS
AWARD. THE CONTRACTING OFFICER ACCEPTED THE FAVORABLE RECOMMENDATION IN
THE PREAWARD SURVEY REPORT AND PREPARED TO AWARD THE CONTRACT TO
REPUBLIC, AS THE LOW RESPONSIVE AND RESPONSIBLE BIDDER, WHEN YOUR FIRM
ENTERED ITS PROTEST AGAINST THE AWARD CONTENDING PRIMARILY THAT REPUBLIC
WAS NOT FINANCIALLY CAPABLE OF PERFORMING THE CONTRACT. THE CONTRACTING
OFFICER REVIEWED HIS FINDINGS AND REAFFIRMED HIS PRIOR DECISION THAT
AWARD SHOULD BE MADE TO REPUBLIC.
IN YOUR PROTEST YOU HAVE STRESSED THAT A POSITIVE AFFIRMATION OF
RESPONSIBILITY UNDER ASPR 1-902 MUST BE MADE BY THE CONTRACTING OFFICER
BEFORE AN AWARD CAN BE MADE, AND THAT DOUBT AS TO PRODUCTIVE STRENGTH OR
FINANCIAL STRENGTH WHICH CANNOT BE RESOLVED AFFIRMATIVELY SHALL REQUIRE
A DETERMINATION OF NONRESPONSIBILITY. MOREOVER, YOU POINT OUT THAT ASPR
1-903.1 REQUIRES THAT A COMPANY'S CAPABILITIES BE EVALUATED NOT ONLY IN
THE INSTANT FOR WHICH A CONTEMPLATED AWARD IS TO BE MADE, BUT ALSO TO
EVALUATE THE COMPANY'S RECORD OF PAST PERFORMANCE. YOUR CONTENTIONS ARE
WELL TAKEN AND YOU HAVE CITED SEVERAL CASES TO SUPPORT YOUR VIEW. AS
YOU KNOW, IN OUR DECISION B-156555, DATED JULY 21, 1965, INVOLVING YOUR
FIRM AND REPUBLIC, FULL CREDENCE WAS GIVEN YOUR CONTENTIONS BY THE
DEPARTMENT OF THE AIR FORCE.
HOWEVER, IN THE INSTANT PROCUREMENT, HEADQUARTERS AIR FORCE SYSTEMS
COMMAND RAISED SOME FURTHER QUESTIONS CONCERNING THE FINANCIAL CONDITION
OF REPUBLIC. AS A RESULT, ADDITIONAL FINANCIAL DOCUMENTATION AND
INVESTIGATION WERE REQUESTED. SUCH INVESTIGATION DISCLOSED THE
FOLLOWING:
"7. THE DEFENSE CONTRACT ADMINISTRATION REGION (DCASR) REQUESTED THE
DEFENSE CONTRACT AUDIT AGENCY (DCAA) TO EVALUATE REPUBLIC'S FINANCIAL
DATA, INCLUDING CASH FLOW SHEETS, AND ADVISE WHETHER THEY CONSIDERED
REPUBLIC TO POSSESS ADEQUATE FINANCIAL RESOURCES TO PERFORM THIS
CONTRACT.
DCAA ADVISED THAT REPUBLIC'S PRESENT CASH ASSETS INDICATED LACK OF
FINANCIAL STABILITY, BUT THAT REPUBLIC HAD APPLIED TO THE SECURITY
EXCHANGE COMMISSION FOR AUTHORITY TO SELL DEBENTURES WHICH WOULD NET
APPROXIMATELY $270,000 IN ADDITIONAL WORKING CAPITAL. DCAA FURTHER
ADVISED THAT REPUBLIC WOULD BE FINANCIALLY CAPABLE OF PERFORMING THE
CONTRACT, PROVIDED THE DEBENTURE SALE WAS SUCCESSFUL.
"8. THE AIR FORCE THEN LEARNED THAT A TECHNICALITY IN THE SALES OF
THE SECURITY EXCHANGE COMMISSION PREVENTED THE IMMEDIATE APPROVAL OF THE
DEBENTURE OFFERING. THEREFORE, HEADQUARTERS, AFSC AND HEADQUARTERS,
USAF, DECIDED NOT TO APPROVE AN AWARD TO REPUBLIC. TO OVERCOME THIS
DIFFICULTY, REPUBLIC SUBMITTED A LETTER FROM THE FALROCK CORPORATION,
WHICH HAS ACQUIRED A CONTROLLING INTEREST IN REPUBLIC, INDICATING AN
AGREEMENT BY FALROCK TO FURNISH REPUBLIC IMMEDIATELY AN ADDITIONAL LOAN
OF $270,000 IN THE EVENT THE DEBENTURES WERE NOT SOLD BY THE TIME
REPUBLIC NEEDED THIS ADDITIONAL WORKING CAPITAL.
"9. SUBSEQUENTLY, FALROCK CORPORATION ACTUALLY DEPOSITED THE SUM OF
$270,000 TO THE ACCOUNT OF REPUBLIC AND SUBORDINATED THIS AMOUNT FOR THE
DURATION AND COMPLETION OF THE PROPOSED AIR FORCE CONTRACT. ON THE
BASIS OF THIS SITUATION, THE AIR FORCE FINDS THAT REPUBLIC NOW POSSESSES
ADEQUATE FINANCIAL CAPACITY AND IS FINANCIALLY RESPONSIBLE FOR THE
PURPOSE OF THIS CONTRACT AWARD.
THE FACT THAT REPUBLIC IN THE PAST WAS FOUND NON-RESPONSIVE
FINANCIALLY FOR TWO OTHER CONTRACTS FOR SIMILAR EQUIPMENT, DOES NOT, IN
OUR OPINION, PRECLUDE A FINDING OF RESPONSIBILITY AT THIS TIME, SINCE
THE DETERMINATION OF RESPONSIBILITY HAS TO BE MADE AS OF THE DATE OF
AWARD OF THE CONTRACT. ACCORDINGLY, ON 17 MAY 1966, HEADQUARTERS USAF
AUTHORIZED THE PROCURING ACTIVITY TO PROCEED WITH AN IMMEDIATE AWARD TO
REPUBLIC. THIS ACTION WAS TAKEN BECAUSE THE DELAY IN THIS AWARD DUE TO
THE PROTEST HAD CREATED A SITUATION OF URGENCY TO SATISFY CRITICAL AIR
FORCE REQUIREMENTS. NOTICE OF OUR INTENT TO MAKE THE AWARD WAS GIVEN TO
YOUR OFFICE AT THAT TIME.'
THUS, ANY DOUBT THAT THE PROCURING AGENCY MAY HAVE HAD CONCERNING
REPUBLIC'S FINANCIAL CAPACITY WAS DISPELLED BY FALROCK'S ACTUAL DEPOSIT
OF $270,000 TO THE ACCOUNT OF REPUBLIC AND SUBORDINATION OF THIS AMOUNT
FOR THE DURATION AND COMPLETION OF THE SUBJECT CONTRACT.
IN CONNECTION WITH THE FOREGOING, IT IS NOTED THAT ASPR 1-905.2
PROVIDES IN RELEVANT PART AS FOLLOWS:
"WHEN INFORMATION WILL BE OBTAINED. GENERALLY INFORMATION REGARDING
THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR (INCLUDING PRE-AWARD
SURVEYS (SEE 1-905.4) WHEN DEEMED NECESSARY) SHALL BE OBTAINED PROMPTLY
AFTER BID OPENING OR RECEIPT OF PROPOSALS. * * * NOTWITHSTANDING THE
FOREGOING, INFORMATION REGARDING FINANCIAL RESOURCES (SEE 1-903.1 (I) (
AND PERFORMANCE CAPABILITY (SEE 1-903.1 (II) ( SHALL BE OBTAINED ON AS
CURRENT A BASIS AS FEASIBLE WITH RELATION TO THE DATE OF CONTRACT
AWARD.'
AS WAS POINTED OUT TO MR. DAVID ROWLAND OF YOUR CORPORATION AT A
CONFERENCE AT OUR OFFICE TO REVIEW THE ADMINISTRATIVE REPORT, THE
PROCEDURE FOLLOWED BY THE AIR FORCE TO SATISFY ITSELF AS TO THE
FINANCIAL CAPABILITIES OF REPUBLIC WAS IN ACCORD WITH THE FOREGOING
REGULATIONS. IT IS OUR VIEW THAT IN ACCORDANCE WITH ASPR 1-905.2, THE
PROCURING AGENCY EMPLOYED THE MOST CURRENT INFORMATION ON FINANCIAL
RESOURCES WHICH COULD BE AND WAS OBTAINED BEFORE AWARD OF A VALID
CONTRACT. THE FACT THAT IN THE PAST REPUBLIC HAS HAD FINANCIAL
DIFFICULTIES SHOULD NOT, IN AND OF
ITSELF, OPERATE TO BAR REPUBLIC FROM BEING AWARDED CONTRACTS WHEN
THESE DIFFICULTIES ARE OVERCOME. THE ADMINISTRATIVE EVALUATION AS TO
BIDDER'S RESPONSIBILITY WHICH WAS MADE AFTER BID OPENING DATE, BUT PRIOR
TO AWARD, IS NOT OBJECTIONABLE, SINCE THE ULTIMATE OBJECTIVE IS THE
DETERMINATION OF RESPONSIBILITY AS OF THE TIME OF AWARD OF A CONTRACT.
SEE 39 COMP. GEN. 895 ; AND B-131286, DATED JUNE 14, 1957, IN WHICH WE
SAID:
"IN REGARD TO THE FINANCIAL CLEARANCE GRANTED ON THE SECOND
FACILITIES CAPABILITY REPORT, IT IS STATED THAT THE EVIDENCE OF
FINANCIAL ASSISTANCE TO BE FURNISHED BY THE HUDSON COUNTY NATIONAL BANK,
THE RELDAN TRADING COMPANY AND CRUCIBLE STEEL CORPORATION, AS SUBMITTED
BY RANDY WIRE WORKS,
WAS CONSIDERED SUFFICIENT TO RELY UPON AS GIVING REASONABLE ASSURANC
OF SUCCESSFUL PERFORMANCE OF THE PROPOSED CONTRACT FROM A FINANCIAL
STANDPOINT.
"WE HAVE CONSISTENTLY HELD THAT THE QUESTION OF RESPONSIBILITY OF
BIDDERS IS PRIMARILY A MATTER FOR CONSIDERATION BY THE CONTRACTING
AGENCY. SEE IN THIS CONNECTION, O-BRIEN V. CARNEY, 6 F.SUPP. 761. THE
BID OF RANDY WIRE WORKS WAS A FIRM BID AND THE ACCEPTANCE THEREOF,
WITHOUT ANY INVESTIGATION WHATEVER BY THE GOVERNMENT AS TO ITS
RESPONSIBILITY, WOULD HAVE CREATED A VALID AND BINDING CONTRACT. THE
INVESTIGATION OF THE CORPORATION'S RESPONSIBILITY WAS SOLELY FOR THE
PROTECTION AND BENEFIT OF THE GOVERNMENT. ORDINARILY, A LOW BIDDER IS
ENTITLED TO AN AWARD UNLESS IT IS DETERMINED THAT THE BIDDER IS NOT
QUALIFIED TO PERFORM OR FOR SOME OTHER SUBSTANTIAL REASON IT IS NOT TO
THE ADVANTAGE OF THE GOVERNMENT TO MAKE THE AWARD TO THE LOW BIDDER, AND
OUR OFFICE HAS CONSISTENTLY HELD THAT REJECTION OF A LOW BID MUST BE
JUSTIFIED BY SUBSTANTIAL GROUNDS.
"IN THE INSTANT CASE, WHILE IT WAS ORIGINALLY DETERMINED THAT RANDY
WIRE WORKS WAS NOT QUALIFIED, THE CORPORATION PROTESTED SUCH
DETERMINATION AND APPARENTLY WAS ABLE TO RAISE SUFFICIENT DOUBT AS TO
THE ACCURACY OR COMPLETENESS OF THE FIRST PRE-AWARD SURVEY TO WARRANT
FURTHER INVESTIGATION. IN SUCH CIRCUMSTANCES, THE ACTION OF THE
DEPARTMENT OF THE AIR FORCE IN CONDUCTING THE SECOND PRE-AWARD SURVEY
CANNOT PROPERLY BE CONSIDERED AS NOT IN THE BEST INTEREST OF THE
GOVERNMENT.'
QUESTIONS CONCERNING THE QUALIFICATIONS OF A PROPOSED CONTRACTOR ARE
FOR RESOLUTION PRIMARILY BY THE ADMINISTRATIVE OFFICERS CONCERNED. IN
THE ABSENCE OF ANY SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS
FOR THE DETERMINATION, WE ARE NOT JUSTIFIED IN OBJECTING TO A
DETERMINATION MADE ON THIS QUESTION BY THE ADMINISTRATIVE AGENCY. 37
COMP. GEN. 430 ; 36 ID. 42. MOREOVER, AN UNFAVORABLE DETERMINATION
DOES NOT IN ITSELF CONSTITUTE ANY GROUND FOR SIMILAR DETERMINATIONS IN
FUTURE CASES SINCE EACH DETERMINATION OF RESPONSIBILITY MUST BE BASED ON
THE SITUATION EXISTING AS OF THE TIME WHEN SUCH DETERMINATION IS MADE.
HERE, THE AIR FORCE HAS DETERMINED THAT REPUBLIC IS A RESPONSIBLE
CONTRACTOR AND THE RECORD SHOWS NO SHOWING OF BAD FAITH OR LACK OF A
REASONABLE BASIS FOR SUCH DETERMINATION.
IN VIEW OF THE RECORD BEFORE US, WE SEE NO VALID BASIS FOR OBJECTING
TO THE ACTIONS TAKEN BY THE DEPARTMENT OF THE AIR FORCE IN DETERMINING
THAT REPUBLIC, AS THE RESPONSIBLE BIDDER, WAS ENTITLED TO AWARD OF THE
INSTANT PROCUREMENT.
B-158687, B-158794, JUL. 7, 1966
TO CONTINENTAL CHEMICAL CORPORATION:
REFERENCE IS MADE TO YOUR LETTERS OF MARCH 7 AND 23, 1966, AND
SUBSEQUENT CORRESPONDENCE, CONCERNING YOUR PROTESTS IN CONNECTION WITH
INVITATIONS FOR BIDS NOS. ATH-86167 AND 24989, ISSUED BY THE GENERAL
SERVICES ADMINISTRATION (GSA), ATLANTA, GEORGIA, AND DENVER, COLORADO.
INVITATION NO. 86167 REQUESTED BIDS ON 4,146 ONE GALLON CONTAINERS OF
LIQUID TOILET SOAP. BIDS WERE OPENED FEBRUARY 24, 1966, AND YOU WERE
LOW BIDDER IN THE AMOUNT OF $0.585 PER GALLON. YOUR BID WAS REJECTED
BASED ON A DETERMINATION OF NONRESPONSIBILITY AND THE SECOND LOW BID WAS
ALSO REJECTED, AWARD BEING MADE TO THE THIRD LOW BIDDER, NATIONAL
CHEMICAL LABORATORIES, AT $0.66 PER GALLON, OR A TOTAL OF $2,736.36.
INVITATION NO. 24989 REQUESTED BIDS TO BE OPENED FEBRUARY 14, 1966, ON
VARIOUS TYPES OF POLISH. YOU WERE LOW ON ITEMS 1, 2 AND 3 OF METAL
POLISH, WHICH WERE TO BE AWARDED IN THE AGGREGATE, IN THE TOTAL NET
AMOUNT OF $1,108.18, BASED ON THE ESTIMATED QUANTITIES SHOWN IN THE
INVITATION. YOUR BID WAS REJECTED FOR NONRESPONSIBILITY AND AWARD WAS
MADE TO THE SECOND LOW BIDDER, E. A. THOMPSON CO., INC., IN THE NET
AMOUNT OF $1,169.70. UNDER BOTH OF THESE INVITATIONS CONTINENTAL
CERTIFIED ITSELF TO BE A SMALL BUSINESS CONCERN.
YOU HAVE PROTESTED THE ABOVE REJECTIONS ON THE GROUND THAT THE
DETERMINATIONS OF NONRESPONSIBILITY WERE NOT BASED ON YOUR PERFORMANCE
UNDER RECENT CONTRACTS. YOU STATE IN YOUR LETTER OF MARCH 23 THAT
DURING THE PRECEDING NINE MONTHS YOU INCORPORATED MANY CHANGES INTO YOUR
OPERATION AND VASTLY IMPROVED YOUR DELIVERY ON GOVERNMENT CONTRACTS, AND
IT IS YOUR CONTENTION THAT A PROPER EVALUATION OF YOUR PERFORMANCE
DURING THE SIX MONTHS PRIOR TO MARCH 1966 WOULD ESTABLISH YOUR
RESPONSIBILITY.
SUBSECTIONS 4 AND 5 OF SECTION 1-1.310 OF THE FEDERAL PROCUREMENT
REGULATIONS PROVIDE THAT CONTRACTS SHALL BE AWARDED ONLY TO RESPONSIBLE
PROSPECTIVE CONTRACTORS AND THAT, IN ORDER TO QUALIFY AS RESPONSIBLE, A
PROSPECTIVE CONTRACTOR MUST MEET CERTAIN SPECIFIED STANDARDS, INCLUDING
HAVING A SATISFACTORY RECORD OF PERFORMANCE.
THE FEDERAL PROCUREMENT REGULATIONS FURTHER PROVIDE, IN PERTINENT
PART, AS FOLLOWS:
"SEC. 1-1.708-1 GENERAL.
"PURSUANT TO AUTHORITY OF THE SMALL BUSINESS ACT (15 U.S.C. 637 (B)
(7), SBA IS EMPOWERED TO CERTIFY TO GOVERNMENT PROCUREMENT OFFICERS THE
COMPETENCY AS TO CAPACITY AND CREDIT OF ANY SMALL BUSINESS CONCERN OR
GROUP OF SUCH CONCERNS TO PERFORM A SPECIFIC GOVERNMENT CONTRACT. AS
USED IN THIS SECTION,"CAPACITY" MEANS THE OVERALL ABILITY OF A
PROSPECTIVE SMALL BUSINESS CONTRACTOR TO MEET QUALITY, QUANTITY, AND
TIME REQUIREMENTS OF A PROPOSED CONTRACT AND INCLUDES ABILITY TO
PERFORM, ORGANIZATION, EXPERIENCE, TECHNICAL KNOWLEDGE,
SKILLS,"KNOW-HOW," TECHNICAL EQUIPMENT, AND FACILITIES.
"SEC. 1-1.708-2 APPLICABILITY AND PROCEDURE.
"/A) IF A SMALL BUSINESS CONCERN HAS SUBMITTED AN OTHERWISE
ACCEPTABLE BID OR PROPOSAL BUT HAS BEEN FOUND BY THE CONTRACTING OFFICER
NOT TO BE RESPONSIBLE AS TO CAPACITY OR CREDIT, AND IF THE BID OR
PROPOSAL IS TO BE REJECTED FOR THIS REASON ALONE, SBA SHALL BE NOTIFIED
OF THE CIRCUMSTANCES SO AS TO PERMIT IT TO ISSUE A CERTIFICATE OF
COMPETENCY. * * * THE AWARD SHALL BE WITHHELD PENDING EITHER SBA
ISSUANCE OF A CERTIFICATE OF COMPETENCY OR THE EXPIRATION OF 15 WORKING
DAYS AFTER SBA IS SO NOTIFIED, WHICHEVER IS EARLIER, SUBJECT TO THE
FOLLOWING:
"/1) THIS PROCEDURE IS NOT MANDATORY WHERE AWARD MUST BE MADE WITHOUT
DELAY AND THE CONTRACTING OFFICER INCLUDES IN THE CONTRACT FILE A
STATEMENT SIGNED BY HIM WHICH JUSTIFIES IMMEDIATE ACTION. A COPY OF THE
STATEMENT SHALL BE FURNISHED THE SBA REPRESENTATIVE.
"/2) THIS PROCEDURE DOES NOT APPLY TO PROPOSED AWARDS OF LESS THAN
$2,500.
"/3) THIS PROCEDURE IS OPTIONAL, WITHIN THE DISCRETION OF THE
CONTRACTING OFFICER, AS TO PROPOSED AWARDS OF MORE THAN $2,500, BUT LESS
THAN $10,000.
"/4) THIS PROCEDURE DOES NOT APPLY WHERE THE CONTRACTING OFFICER HAS
FOUND A SMALL BUSINESS CONCERN NOT TO BE RESPONSIBLE FOR A REASON OTHER
THAN LACK OF CAPACITY OR CREDIT.'
IN EVALUATING YOUR PERFORMANCE RECORD FOR THE PURPOSE OF MAKING AN
AWARD UNDER INVITATION NO. 86167, THE ATLANTA CONTRACTING OFFICER
REVIEWED YOUR DELIVERIES BACK TO JANUARY 1964 AND REQUESTED DELIVERY
INFORMATION FROM OTHER GSA REGIONAL BUYING OFFICES, AND ON THE BASIS OF
YOUR OVERALL RECORD OF DELINQUENT DELIVERIES, AS REPORTED TO HIM,
DETERMINED THAT YOU WERE NOT A RESPONSIBLE BIDDER. THE MATTER WAS NOT
REFERRED TO SBA, FOR POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY
(COC), SINCE THE AMOUNT OF THE PROPOSED AWARD WAS APPROXIMATELY $2,700,
AND REFERENCE TO SBA WAS THEREFORE OPTIONAL, WITHIN THE DISCRETION OF
THE CONTRACTING OFFICER, UNDER SECTION 1-1.708-2 (A) (3) OF THE FEDERAL
PROCUREMENT REGULATIONS, QUOTED ABOVE.
WITH REFERENCE TO INVITATION NO. 24989, THE DENVER REGIONAL OFFICE
EXAMINED YOUR RECORD OF DELIVERIES TO THAT OFFICE FOR THE PERIOD FROM
JANUARY 1, 1965, THROUGH FEBRUARY 15, 1966, WHICH INDICATED THAT 43
PERCENT OF THE ORDERS PLACED WERE DELIVERED LATE. CONSIDERATION WAS
ALSO GIVEN TO THE FACT THAT, WHEN INFORMATION AS TO YOUR PERFORMANCE
RECORD WAS SOUGHT FROM OTHER REGIONS THE PICTURE WAS THE SAME. THE
QUESTION OF YOUR RESPONSIBILITY WAS THEREFORE CONSIDERED BY THE REGIONAL
BUYER AND BY THE CHIEF, BUYING DIVISION, AND IT WAS DETERMINED THAT NO
AWARD WOULD BE MADE TO YOU, DUE TO NONRESPONSIBILITY. THIS CASE
LIKEWISE WAS NOT REFERRED TO SBA, SINCE THE PROCEDURE FOR REFERRAL UNDER
THE COC PROCEDURE DOES NOT APPLY TO PROPOSED AWARDS OF LESS THAN $2,500.
THE DETERMINATION OF A PROSPECTIVE CONTRACTOR'S ABILITY TO PERFORM IS
PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE OFFICERS CONCERNED, AND IN
MAKING THIS DETERMINATION THEY ARE VESTED WITH CONSIDERABLE DISCRETION.
IN THE ABSENCE OF ANY SHOWING OF BAD FAITH OR OTHER ABUSE OF THIS
DISCRETION, WE ARE NOT REQUIRED TO OBJECT TO THE DETERMINATION MADE BY
THE ADMINISTRATIVE AGENCY. 37 COMP. GEN. 430, 435. IT DOES APPEAR, AND
IS ADMITTED BY THE CENTRAL OFFICE OF GSA, THAT IN MAKING THE EVALUATION
IN CONNECTION WITH INVITATION NO. 86167, THE REGIONAL OFFICE PROBABLY
PLACED TOO GREAT WEIGHT ON FAULTY PERFORMANCE PRIOR TO JULY 1965. ALSO,
THE ONLY EXTENSIVE DELAYS IN DELIVERIES TO THE DENVER REGIONAL OFFICE
WERE ON ORDERS DATED JULY 1, 1965, AND PRIOR THERETO. HOWEVER, ON THE
BASIS OF THE INFORMATION BEFORE THE RESPECTIVE CONTRACTING OFFICERS WE
CANNOT CONCLUDE THAT THEIR DETERMINATIONS WERE NOT MADE IN GOOD FAITH OR
WITHOUT SUBSTANTIAL REASONS. SINCE THE BIDS OF THE SUCCESSFUL BIDDERS
CONFORMED TO THE INVITATIONS FOR BIDS, AND WERE ACCEPTED IN GOOD FAITH
BY THE CONTRACTING OFFICERS, WE BELIEVE THAT VALID OBLIGATIONS WERE
BROUGHT INTO EXISTENCE BY ACCEPTANCE, WHICH WERE BINDING ON THE
GOVERNMENT. IN THE CIRCUMSTANCES, WE WOULD NOT BE JUSTIFIED IN
OBJECTING TO THE AWARDS AS MADE, AND YOUR PROTEST MUST THEREFORE BE
DENIED.
IN YOUR LETTER OF MARCH 23, 1966, TO GSA IN WASHINGTON, YOU REFER TO
THE STATEMENT IN LETTER OF SEPTEMBER 7, 1965, FROM GSA'S GENERAL COUNSEL
TO THIS OFFICE, THAT THE ACTION TAKEN BY THE DENVER OFFICE IN NOT MAKING
AN INDEPENDENT CHECK OF YOUR RESPONSIBILITY WITH RESPECT TO IFB 36379,
OPENED JUNE 9, 1965, WAS NOT CONDONED, AND THAT SAID OFFICE WOULD BE
APPROPRIATELY ADMONISHED. THIS ACTION WAS TAKEN BY A MEMORANDUM DATED
JANUARY 4, 1966, AND GSA HAS STATED THAT SINCE THIS MEMORANDUM
APPARENTLY WAS INSUFFICIENT, FURTHER REMEDIAL ACTION IS BEING TAKEN BY
MEMORANDA TO ALL REGIONAL COUNSELS AND TO APPROPRIATE OFFICIALS OF THE
FEDERAL SUPPLY SERVICE TO COVER THE ENTIRE QUESTION OF RESPONSIBILITY IN
SUCH CASES MORE SPECIFICALLY. ADDITIONALLY, WE HAVE BEEN ADVISED THAT
AN AWARD WAS MADE TO YOU EARLY IN APRIL 1966, BY THE GSA CENTRAL OFFICE
IN THE APPROXIMATE AMOUNT OF $108,000 UNDER IFB FPNGC-L-55839, AND THAT
YOU RECEIVED AN AWARD FROM THE ATLANTA REGIONAL OFFICE ON MAY 10, 1966,
FOR APPROXIMATELY $17,000. IN VIEW OF THESE RECENT AWARDS TO YOUR FIRM
AND THE ACTION TAKEN BY GSA TO ENSURE THAT MORE CAREFUL REVIEW IS MADE
OF DETERMINATIONS OF NONRESPONSIBILITY, THE PREVIOUSLY EXISTING PROBLEMS
RELATING TO DETERMINATIONS OF YOUR RESPONSIBILITY APPEAR TO HAVE BEEN
SATISFACTORILY RESOLVED.
B-159230, JUL. 7, 1966
TO SPECIALIST 5 EMORY R. STOCKHAM, USA:
REFERENCE IS MADE TO YOUR LETTER OF APRIL 29, 1966, AND TO A LETTER
DATED APRIL 6, 1966, WRITTEN IN YOUR BEHALF BY MAJOR STANLEY L. SCHARF,
THE THEN EXECUTIVE OFFICER OF YOUR UNIT, THE 45TH MEDICAL COMPANY (AIR
AMBULANCE), RELATIVE TO YOUR CLAIM FOR INCENTIVE FLIGHT PAY DURING THE
PERIOD JULY 1, 1963, THROUGH FEBRUARY 20, 1964. YOUR CLAIM HAD BEEN
DISALLOWED BY SETTLEMENT DATED JANUARY 18, 1966, ON THE BASIS THAT THERE
WAS NO EVIDENCE IN THE RECORD BEFORE THIS OFFICE ESTABLISHING THAT
MINIMUM FLIGHT REQUIREMENTS HAD BEEN MET BY YOU FOR ANY PORTION OF THE
PERIOD OF YOUR CLAIM, OTHER THAN FOR AUGUST 1963. YOU HAD BEEN PAID
INCENTIVE PAY FOR AUGUST 1963 ON VOUCHER NO. 607737, DATED FEBRUARY 6,
1964.
THE RECORDS INDICATE THAT AFTER YOUR ENTIRE UNIT WAS TRANSFERRED IN
JULY 1963 FROM EUROPE TO FT. BRAGG, NORTH CAROLINA, YOUR FLYING STATUS,
AS WELL AS THE FLYING STATUS OF OTHER MEMBERS OF YOUR UNIT, REMAINED
BASICALLY UNCHANGED. HOWEVER, IT IS CLEAR THAT, EXCEPT FOR THE MONTH OF
AUGUST 1963, AIRCRAFT WERE NOT AVAILABLE FOR YOU TO PERFORM FLIGHTS TO
QUALIFY FOR INCENTIVE PAY DURING SEVERAL MONTHS FOLLOWING YOUR RETURN TO
THE UNITED STATES. A CERTIFICATE ISSUED BY YOUR COMMANDING OFFICER ON
MAY 13, 1964, STATED THAT AIRCRAFT WERE NOT AVAILABLE DURING THE PERIOD
JULY 1, 1963, THROUGH NOVEMBER 27, 1963, AND THAT SIX AIRCRAFT WERE
ASSIGNED TO YOUR UNIT AND AVAILABLE FROM NOVEMBER 28, 1963, TO DECEMBER
31, 1963.
UPON RECEIPT OF YOUR LETTER OF APRIL 29, 1966, EFFORT WAS MADE BY
THIS OFFICE TO PROCURE RECORDS THROUGH THE DEPARTMENT OF THE ARMY TO
ESTABLISH THAT YOU ACTUALLY PERFORMED THE MINIMUM FLIGHTS REQUIRED
DURING THE PERIOD IN QUESTION TO QUALIFY FOR INCENTIVE PAY. THAT
EFFORT, HOWEVER, WAS UNSUCCESSFUL AND CONSEQUENTLY WE HAVE BEEN UNABLE
TO CONFIRM THAT YOU MET THE NECESSARY FLIGHT REQUIREMENTS. IN THIS
REGARD, THE LETTER DATED APRIL 6, 1966, MENTIONED ABOVE, FROM MAJOR
SCHARF, IN WHICH HE INDICATES THAT IF YOU DID NOT RECEIVE INCENTIVE
FLIGHT PAY AT THE TIME, YOU SHOULD BE PAID SUCH PAY, IS NOT IN ITSELF
SUFFICIENT TO ESTABLISH THAT THE REQUISITE FLYING TIME WAS ACTUALLY
PERFORMED BY YOU. A CLAIM SUCH AS YOURS SHOULD BE SUPPORTED WITH A
CERTIFICATE BY AN AUTHORIZED OFFICER AS TO THE FLIGHTS ACTUALLY
PERFORMED DURING THE PERIOD CLAIMED, INCLUDING INFORMATION AS TO THE
NUMBER, DURATION AND DATES OF SUCH FLIGHTS. SUCH SPECIFIC EVIDENCE IS
NECESSARY SO THAT A PROPER DETERMINATION CAN BE MADE AS TO WHETHER THERE
HAS BEEN COMPLIANCE WITH THE LAWS AND REGULATIONS GOVERNING INCENTIVE
FLIGHT PAY. ACCORDINGLY, ON THE
PRESENT RECORD, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.
IF YOU ARE ABLE TO PROCURE AND FURNISH THIS OFFICE WITH A CERTIFICATE
AS INDICATED ABOVE AS TO THE FLIGHTS PERFORMED BY YOU DURING THE PERIOD
IN QUESTION THE MATTER WILL BE GIVEN FURTHER CONSIDERATION.
B-159320, JUL. 7, 1966
TO ACCOUNTING AND FINANCE OFFICER, EDWARDS AIR FORCE BASE,
CALIFORNIA:
BY LETTER OF MAY 27, 1966, THE DIRECTORATE OF ACCOUNTING AND FINANCE
FORWARDED YOUR REQUEST FOR AN ADVANCE DECISION AS TO THE DISPOSITION
WHICH SHOULD BE MADE OF THE AMOUNT DUE UNDER CONTRACT AF 04/611/-10704
WITH WESTERN HYDRO ENGINEERING, INC., IN VIEW OF THE NUMBER OF CLAIMS
WHICH HAVE BEEN MADE AGAINST THE AMOUNT BY VARIOUS CLAIMANTS.
THE CONTRACT WAS FOR THE OVERHAUL OF A DIESEL ENGINE. THE $4,780
CONTRACT PRICE WAS INCREASED BY AMENDMENTS TO $6,008.44, WHICH AMOUNT
HAS NOW BEEN DETERMINED TO BE PAYABLE ON ACCOUNT OF THE WORK PERFORMED.
IT IS REPORTED THAT DURING THE PERFORMANCE OF THE CONTRACT, THE
CONTRACTOR CEASED OPERATING AS A CORPORATION, ALTHOUGH NOT DECLARED
DISSOLVED OR IN RECEIVERSHIP, AND ASSIGNED THE CONTRACT TO ITS
SECRETARY-TREASURER, WILLIAM D. SANFORD. THE NOTARIZED ASSIGNMENT
DOCUMENT READS AS FOLLOWS:
"WESTERN HYDRO ENGINEERING, INC., HEREBY TRANSFERS, ASSIGNS AND
CONVEYS ALL OF ITS RIGHT, TITLE AND INTEREST IN AND TO THE CERTAIN
CONTRACT BETWEEN WESTERN HYDRO ENGINEERING, INC. AND EDWARDS AIR FORCE
BASE, KNOWN AND DESCRIBED AS CONTRACT NO. AF 04/611/-10704 TO WILLIAM D.
SANFORD, INDIVIDUALLY ON THE DATE ABOVE WRITTEN.
WESTERN HYDRO ENGINEERING, INC.
BY (S) WILLIAM D. SANFORD
------------------------------
WILLIAM D. SANFORD
BY (S) MILLIE COOK
------------------------------
MILLIE COOK"
MR. SANFORD COMPLETED THE CONTRACT AND REQUESTED THAT $6,008.44 BE
PAID TO HIM. THERE HAS ALSO BEEN RECEIVED FROM KEEN INVESTMENT COMPANY,
HOLDER OF AN ACCOUNT RECEIVABLE FROM WESTERN HYDRO, A CLAIM FOR $4,780,
THE AMOUNT OF THE ACCOUNT RECEIVABLE AND THE ORIGINAL CONTRACT PRICE.
IN SUPPORT OF THE CLAIM, KEEN INVESTMENT COMPANY PRESENTED A XEROX COPY
OF A SCHEDULE OF ACCOUNTS INCLUDING AN INDEBTEDNESS OF $4,780 AS A
RESULT OF CONTRACT AF 04/611/-10704. AT THE BOTTOM OF THE SCHEDULE
THERE APPEARS A STATEMENT AS FOLLOWS:
"FOR AND IN CONSIDERATION OF PAYMENT OF $1.00 AND OTHER GOOD AND
VALUABLE CONSIDERATIONS, THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED,
PURSUANT TO TERMS OF AN EXISTING CONTRACT BY AND BETWEEN THE UNDERSIGNED
AND KEEN INVESTMENT CO., THE CONDITIONS, REPRESENTATIONS, WARRANTIES,
AND AGREEMENTS OF WHICH, ARE MADE A PART OF THIS SALE AND ASSIGNMENT AND
INCORPORATED HEREUNTO, THE UNDERSIGNED HEREBY SELLS, TRANSFERS, AND
ASSIGNS TO KEEN INVESTMENT CO., ITS SUCCESSORS OR ASSIGNS, ALL OF THE
RIGHT, TITLE AND INTEREST OF THE UNDERSIGNED IN AND TO THE ACCOUNTS
RECEIVABLE, NOTES, TRADE ACCEPTANCES, MERCHANDISE AND/OR OTHER EVIDENCE
OF INDEBTEDNESS ABOVE NAMED AND HEREIN CERTIFIED, INCLUDING ALL MONIES
DUE TO OR TO BECOME DUE UPON THE SAME.'
THE STATEMENT IS SIGNED BY WAYNE W. DOUGHERTY AS VICE PRESIDENT OF
WESTERN HYDRO. IN ADDITION, WILLIAM J. WRIGHT, A RECEIVER FOR THE SMALL
BUSINESS ADMINISTRATION (SBA), HAS REQUESTED PAYMENT OF A JUDGMENT
ISSUED BY THE SUPERIOR COURT OF THE STATE OF CALIFORNIA AGAINST WESTERN
HYDRO AND WILLIAM SANFORD IN THE AMOUNT OF $4,080 FOR PREMISES IN THE
CUSTODY OF SBA OCCUPIED FOR ABOUT 9 MONTHS. ALSO, THE INTERNAL REVENUE
SERVICE (IRS) HAS FILED A NOTICE OF LEVY FOR $1,949.36 REPRESENTING
UNPAID TAXES. THE STATE OF CALIFORNIA EMPLOYMENT RELATIONS AGENCY HAS
PRESENTED A CLAIM FOR $3,276.27 BOTH AS AN EXISTING AND PROSPECTIVE
LEGAL ASSIGNEE FOR UNPAID WAGES TO EMPLOYEES OF WESTERN HYDRO AND FOR
$777.78 FOR UNPAID UNEMPLOYMENT INSURANCE TAX.
THE CONTRACT WITH WESTERN HYDRO CONTAINS A "NO-SET-OFF" PROVISION IN
THE ASSIGNMENT OF CLAIMS CLAUSE. UNDER THE "NO-SET-OF" PROVISION, THE
GOVERNMENT IS SPECIFICALLY PRECLUDED FROM SETTING OFF CERTAIN ITEMS
ENUMERATED IN THE ASSIGNMENT OF CLAIMS ACT OF 1940, 31 U.S.C. 203 AND 41
U.S.C. 15. HOWEVER, AN ASSIGNMENT DOES NOT EXTINGUISH THE RIGHTS OF
THE GOVERNMENT ACQUIRED BY THE TERMS OF THE CONTRACT. 35 COMP. GEN.
149. THE WALSH-HEALEY ACT, 41 U.S.C. 35, A LABOR STANDARDS ACT, DOES
NOT APPLY TO THE CONTRACT BECAUSE IT IS FOR LESS THAN $10,000, BUT ONE
OF THE CONDITIONS OF THE CONTRACT IS THAT LABORERS AND MECHANICS
EMPLOYED UPON THE WORK SHALL BE PAID TIME-AND-A-HALF AS OVERTIME
COMPENSATION AS REQUIRED BY THE WORK HOURS ACT OF 1962, 40 U.S.C. 327,
AND THAT IF UNPAID IN THAT REGARD THE CONTRACTING OFFICER MAY WITHHOLD
MONEY TO ACCOMPLISH THAT PURPOSE. MOREOVER, PENALTIES, WHICH CAN ALSO
BE WITHHELD, ARE PROVIDED IN THE CONTRACT FOR DISREGARDING THE OVERTIME
REQUIREMENTS. THE DISPOSITION OF THE SUMS WITHHELD FOR THE LABORERS AND
MECHANICS IS REQUIRED TO BE MADE BY OUR OFFICE. 40 U.S.C. 330 (A). NO
CLAIM IS MADE NOR IS THERE ANY INFORMATION IN THE PAPERS FURNISHED WITH
THE REQUEST FOR A DECISION THAT THERE WERE ANY VIOLATIONS OF THE
OVERTIME PROVISIONS. THEREFORE, IT IS NOT NECESSARY TO CONSIDER WHETHER
ANY PART OF THE CONTRACT FUNDS SHOULD BE WITHHELD FOR THE EMPLOYEES AND
IT IS NOT NECESSARY TO CONSIDER THE STANDING OF THE STATE OF CALIFORNIA
AS THEIR ASSIGNEE.
THE ASSIGNMENT OF CLAIMS ACT OF 1940, AS AMENDED, PROVIDES THAT THE
MONEYS DUE OR TO BECOME DUE UNDER A CONTRACT REQUIRING PAYMENTS
AGGREGATING $1,000 OR MORE CAN ONLY BE VALIDLY ASSIGNED IF THE
ASSIGNMENT IS TO A "BANK, TRUST COMPANY, OR OTHER FINANCING
INSTITUTION.' WILLIAM SANFORD OBVIOUSLY DOES NOT QUALIFY AS ANY ONE OF
THE TYPES OF ASSIGNEES DESIGNATED IN THE ACT.
ON THE OTHER HAND, INFORMATION FURNISHED WITH YOUR REQUEST FOR A
DECISION INDICATES THAT KEEN INVESTMENT COMPANY IS A SHORT TERM BUSINESS
CREDIT INSTITUTION AND IS GENERALLY REGARDED AS A FACTOR. FACTORS ARE
REGARDED AS "FINANCING INSTITUTIONS.' 36 COMP. GEN. 19; 31 ID. 90.
THEREFORE, KEEN INVESTMENT COMPANY MAY BE RECOGNIZED AS A PROPER
ASSIGNEE. THE ASSIGNEE'S ENTITLEMENT TO THE CONTRACT PROCEEDS IS
LIMITED BY THE AMOUNT OF THE ASSIGNOR'S INDEBTEDNESS TO THE ASSIGNEE.
37 COMP. GEN. 9; 36 ID. 19; 35 ID. 104. SINCE THE ASSIGNEE HAS NOT
CLAIMED ANY MORE THAN THE AMOUNT OF THE ASSIGNOR'S INDEBTEDNESS TO IT
THE SUM OF $4,780 PROPERLY SHOULD BE PAID TO THE KEEN INVESTMENT
COMPANY.
SINCE THE BALANCE OF THE MONEY WILL NOT BE SUFFICIENT TO COVER BOTH
THE CLAIM FOR SBA AND IRS, THERE REMAINS FOR CONSIDERATION A QUESTION AS
TO WHICH SHOULD HAVE PRIORITY TO THE REMAINING MONEY. SECTIONS 6321 AND
6322 OF TITLE 26, UNITED STATES CODE, PROVIDE THAT THE FAILURE TO PAY
UPON DEMAND ANY TAX DUE CREATES A LIEN IN FAVOR OF THE UNITED STATES
UPON ALL PROPERTY AND RIGHTS TO PROPERTY, WHETHER REAL OR PERSONAL,
BELONGING TO THE TAXPAYER, SUCH LIEN ARISING GENERALLY AT THE TIME OF
THE TAX ASSESSMENT. HOWEVER, SECTION 6323 PROVIDES THAT THE LIEN
IMPOSED BY SECTION 6321 SHALL NOT BE VALID AGAINST A JUDGMENT CREDITOR
UNTIL NOTICE OF THE LIEN HAS BEEN FILED. THE COPY OF THE IRS NOTICE OF
LEVY FURNISHED WITH YOUR LETTER SHOWS THAT TWO ASSESSMENTS WERE MADE
AGAINST WESTERN HYDRO IN OCTOBER 1965. THE JUDGMENT OBTAINED BY THE
RECEIVER FOR SBA IS DATED NOVEMBER 24, 1965. NO INFORMATION HAS BEEN
FURNISHED AS TO WHETHER IRS FILED A NOTICE OF LIEN. EVIDENCE OF THE
DATE OF FILING OF THE NOTICE OF LIEN IN THE MANNER PRESCRIBED BY SECTION
6323 SHOULD BE OBTAINED FROM IRS. IF IT DEVELOPS THAT NOTICE WAS FILED
BEFORE THE JUDGMENT WAS OBTAINED, IRS SHOULD BE GIVEN FIRST PRIORITY.
IF IT DEVELOPS THAT NO NOTICE WAS FILED OR WAS FILED AFTER THE DATE OF
THE JUDGMENT, THE JUDGMENT SHOULD RECEIVE PRIORITY.
AS A MATTER OF MUTUAL ACCOUNTING, THE GOVERNMENT IS ENTITLED TO
PROTECT ITS OWN INTERESTS BEFORE THE INTERESTS OF OTHERS TO THE EXTENT
THAT IT IS LEGALLY ABLE. UNITED STATES V. MUNSEY TRUST CO., 332 U.S.
234. THEREFORE, SINCE AFTER SATISFACTION OF THE GOVERNMENT'S INTEREST,
THERE ARE NO FURTHER FUNDS AVAILABLE, WHETHER THE STATE OF CALIFORNIA
SHOULD BE PAID BY THE GOVERNMENT FOR UNPAID UNEMPLOYMENT INSURANCE TAX
IS ACADEMIC.
B-159337, JUL. 7, 1966
TO THE HONORABLE J. GEORGE STEWART, ARCHITECT OF THE CAPITOL:
REFERENCE IS MADE TO YOUR LETTER DATED JUNE 1, 1966, WITH ENCLOSURES,
REQUESTING OUR DECISION AS TO THE AMOUNT OF A PAYMENT WHICH MAY PROPERLY
BE MADE TO JOHN HARBESON, WM. J. H. HOUGH, WM. H. LIVINGSTON AND ROY F.
LARSON, ARCHITECTS AND FURNITURE CONSULTANTS, UNDER CONTRACT NO.
ACHO-245, DATED MAY 27, 1963, TO FURNISH ALL NECESSARY PROFESSIONAL
SERVICES FOR THE DESIGN AND PROCUREMENT OF FURNITURE AND FURNISHINGS FOR
THE RAYBURN HOUSE OFFICE BUILDING, PURSUANT TO THE AUTHORITY CONFERRED
BY PUBLIC LAW 24, 84TH CONGRESS, 69 STAT. 40, 41 AND BY PUBLIC LAW
88-25, 77 STAT. 32.
THE SUBJECT CONTRACT INCLUDES THE FOLLOWING PROVISIONS WITH RESPECT
TO THE PAYMENT OF COMPENSATION FOR SERVICES RENDERED THEREUNDER:
"ARTICLE 3. IN CONSIDERATION OF THE FURNISHING BY THE PARTIES OF THE
SECOND PART OF THE SERVICES DESCRIBED IN ARTICLES 1 AND 2 HEREOF, THE
PARTY OF THE FIRST PART SHALL PAY THE PARTIES OF THE SECOND PART AS
COMPENSATION AN AMOUNT EQUAL TO FIVE AND ONE-HALF PERCENT (5 1/2
PERCENT) OF THE TOTAL COST OF ALL FURNITURE AND FURNISHINGS PROCURED FOR
THE RAYBURN HOUSE OFFICE BUILDING, FOR WHICH SERVICES ARE FURNISHED.'
"ARTICLE 4. FOR THE PURPOSE OF MAKING PARTIAL PAYMENTS AND FOR
PAYMENT IN THE EVENT OF TERMINATION OF THE CONTRACT AS HEREINAFTER
PROVIDED, THE PERCENTAGE TO BE PAID SHALL BE BASED UPON AN ESTIMATED
COST OF THREE MILLION DOLLARS ($3,000,000) FOR THE FURNITURE AND
FURNISHINGS, UNTIL SUCH TIME AS THE ACTUAL COST CAN BE DETERMINED, AT
WHICH TIME THE AMOUNTS DUE SHALL BE ADJUSTED TO CONFORM TO THE ACTUAL
COST. ALL SERVICES PERFORMED PRIOR TO THE LETTING OF THE PRINCIPAL
CONTRACT OR CONTRACTS FOR THE FURNITURE AND FURNISHINGS SHALL BE
EVALUATED AT SEVENTY-FIVE PERCENT (75 PERCENT) OF THE CONSIDERATION, AND
ALL SERVICES PERFORMED AFTER THE LETTING OF THE PRINCIPAL CONTRACT OR
CONTRACTS SHALL BE EVALUATED AT TWENTY-FIVE PERCENT (25 PERCENT) OF THE
SIDERATION.'
IT IS REPORTED THAT CONSULTANT SERVICES WERE RENDERED UNDER THE
SUBJECT CONTRACT IN CONNECTION WITH 30 SEPARATE PROCUREMENT CONTRACTS,
INCLUDING ONE CONTRACT FOR THE MANUFACTURE AND DELIVERY OF BRONZE WIRE
MAIL BASKETS FOR THE REPRESENTATIVES' OFFICE SUITES. DRAWINGS AND
SPECIFICATIONS FOR THE MAIL BASKETS WERE DEVELOPED BY THE CONSULTANTS
AND, IN ACCORDANCE WITH THEIR RECOMMENDATIONS, A CONTRACT WAS AWARDED TO
THE LOW BIDDER IN THE AMOUNT OF $10,140. SUBSEQUENTLY, BUT BEFORE THE
WORK UNDER THE MANUFACTURER'S CONTRACT HAD PROGRESSED VERY FAR, IT WAS
LEARNED THAT THE CONGRESSMEN GENERALLY DID NOT WANT THE MAIL BASKETS
INSTALLED IN THEIR SUITES. AS A RESULT, THE MANUFACTURER WAS ADVISED
THAT HIS CONTRACT WAS CANCELLED. THE MANUFACTURER WAS REIMBURSED FOR
THE EXPENSES HE HAD INCURRED PRIOR TO CANCELLATION IN THE AMOUNT OF
$1,727.80. IN CONNECTION WITH THAT SETTLEMENT, IT IS REPORTED THAT THE
CONSULTANTS WERE REQUESTED TO EVALUATE AND GIVE THEIR RECOMMENDATIONS ON
THE MANUFACTURER'S CLAIM, HOWEVER, YOU DO NOT INDICATE THAT SUCH ACTIONS
ARE REGARDED AS BEING OUTSIDE THE SCOPE OF THEIR DUTIES (ARTICLE 1 (I)
). THE CONSULTANTS HAVE SUBMITTED AN INVOICE IN AN AMOUNT EQUAL TO 75
PERCENT OF 5 1/2 PERCENT OF $10,140 AS THEIR FEE FOR SERVICES RENDERED
UP TO THE TIME OF AWARD OF THE CONTRACT FOR THE MAIL BASKETS.
IT IS YOUR RECOMMENDATION THAT THE CONSULTANTS BE COMPENSATED FOR THE
SERVICES RENDERED IN CONNECTION WITH THE MAIL BASKET CONTRACT AND THAT
THEIR COMPENSATION BE COMPUTED ON THE BASIS OF 75 PERCENT OF 5 1/2
PERCENT OF $10,140 PLUS 25 PERCENT OF 5 1/2 PERCENT OF $1,727.80.
UNDER THE TERMS OF ARTICLE 3 OF THE CONSULTANTS' CONTRACT IT WAS
AGREED THAT THEIR COMPENSATION FOR THE DESCRIBED SERVICES SHOULD BE AN
AMOUNT EQUAL TO 5 1/2 PERCENT OF THE TOTAL COST OF ALL FURNITURE AND
FURNISHINGS PROCURED FOR THE RAYBURN BUILDING FOR WHICH SUCH SERVICES
WERE FURNISHED. WITH THE POSSIBLE EXCEPTION OF THE WORD "PROCURED,"
WHICH WILL BE DISCUSSED HEREAFTER, THE MEANING OF THIS PROVISION IS
CLEAR. ARTICLE 4 RELATES ONLY TO PARTIAL OR PROGRESS PAYMENTS AND
PAYMENT IN THE EVENT OF TERMINATION OF THE CONSULTANTS' CONTRACT, FOR
THE PURPOSES OF WHICH AN ESTIMATED COST FIGURE OF $3,000,000 IS TO APPLY
UNTIL SUCH TIME AS THE ACTUAL COST CAN BE DETERMINED, AT WHICH TIME THE
AMOUNTS DUE SHALL BE ADJUSTED TO CONFORM TO THE ACTUAL COST. THE
PERCENTAGE FORMULA STATED IN ARTICLE 4 APPEARS INTENDED TO APPLY WHERE
PROGRESS PAYMENTS ARE MADE AND IS NOT INTENDED TO APPLY FOR FINAL FEE
COMPUTATION PURPOSES. READING SUCH PROVISIONS TOGETHER, AND
PARTICULARLY THE PHRASES "TOTAL COST" AND "ACTUAL COST," IT IS
REASONABLY CLEAR THAT IT WAS INTENDED THE CONSULTANTS' FEE SHOULD BE
GEARED TO THE TOTAL AMOUNT ACTUALLY PAID FOR ALL THE FURNITURE AND
FURNISHINGS PROCURED, FOR WHICH SERVICES ARE FURNISHED. ALTHOUGH THE
WORD PROCURED" IS GENERALLY DEFINED TO MEAN "ACQUIRED" OR "OBTAINED,"
AND IT DOES NOT APPEAR THAT ANY OF THE MAIL BASKETS WERE ACQUIRED BY THE
GOVERNMENT, WE DO NOT THINK IT SHOULD BE SO STRICTLY CONSTRUED WITH
RESPECT TO THE CONTRACT FOR THE PROCUREMENT OF THE MAIL BASKETS AS TO
REQUIRE THE EXCLUSION OF THE $1,727.80, ACTUALLY PAID IN CONNECTION
THEREWITH, AS A COMPONENT OF THE TOTAL COST FOR THE FURNITURE AND
FURNISHINGS PROCURED UNDER THE 30 INDIVIDUAL CONTRACTS UPON WHICH THE
CONSULTANTS' COMPLETE FEE PRESUMABLY WILL BE COMPUTED.
WHILE IT IS NOTED THAT YOUR RECOMMENDATION THAT PAYMENT BE COMPUTED
ACCORDING TO THE PRICE STATED IN THE CONTRACT FOR THE BASKETS (RATHER
THAN THE ACTUAL AMOUNT PAID IN CONNECTION THEREWITH) IS MADE ON THE
BASIS OF CONSIDERATIONS WHICH YOU FEEL ARE EQUITABLE UNDER THE
CIRCUMSTANCES, IT IS WELL SETTLED THAT ACCOUNTING OFFICERS OF THE
GOVERNMENT MAY NOT SETTLE QUESTIONS ON AN EQUITABLE--- AS DISTINGUISHED
FROM A LEGAL--- BASIS. 42 COMP. GEN. 124, 142. FURTHER, IT IS ALSO
WELL SETTLED THAT WHEN A VALID AND BINDING CONTRACT HAS VESTED IN THE
UNITED STATES THE RIGHT TO HAVE PERFORMANCE STRICTLY IN ACCORDANCE WITH
THE TERMS OF THE CONTRACT, NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO
DIVEST THE GOVERNMENT OF SUCH VESTED RIGHT OR TO ALLOW COMPENSATION FOR
PERFORMANCE IN AN AMOUNT GREATER THAN THAT AGREED UPON IN THE CONTRACT
(20 COMP. GEN. 652, 658), EVEN THOUGH UNFORESEEN CAUSES MAY RENDER THE
CONTRACT PERFORMANCE MORE BURDENSOME OR LESS PROFITABLE THAN ANTICIPATED
(26 COMP. GEN. 365, 367).
ACCORDINGLY, IT IS OUR OPINION THAT PAYMENT TO THE CONSULTANTS FOR
SERVICE PERFORMED IN CONNECTION WITH THE MAIL BASKETS IN QUESTION SHOULD
BE LIMITED TO AN AMOUNT EQUAL TO 5 1/2 PERCENT OF $1,727.80.
B-159478, JUL. 7, 1966
TO MR. DOMINGO VENTENILLA:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 17, 1966, REQUESTING
RECONSIDERATION OF YOUR CLAIM FOR UNUSED LEAVE AND TRAVEL PAY BELIEVED
DUE YOU UPON DISCHARGE FROM THE PHILIPPINE SCOUTS ON MARCH 22, 1949.
YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON
JUNE 29, 1959, AND ON JULY 27, 1959, IT WAS RETURNED TO YOU BY THE
CLAIMS DIVISION OF OUR OFFICE FOR THE REASON THAT CONSIDERATION THEREOF
IS BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, A COPY OF WHICH
WAS FURNISHED YOU. THIS ACT PROVIDES IN PERTINENT PART AS FOLLOWS:
"/1) EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE
BY THE GENERAL ACCOUNTING OFFICE * * * SHALL BE FOREVER BARRED UNLESS
SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN
AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN
TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: * * *.
"/2) WHENEVER ANY CLAIM BARRED BY SECTION 1 SHALL BE RECEIVED IN THE
GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A
COPY OF THIS ACT, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT
FURTHER COMMUNICATION.'
BY LETTERS DATED OCTOBER 5, 1960, AND NOVEMBER 30, 1960, YOU ALSO
WERE ADVISED THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION BY OUR OFFICE
UNDER THE ACT OF OCTOBER 9, 1940, SINCE MORE THAN 10 FULL YEARS HAD
ELAPSED BETWEEN THE DATE OF YOUR DISCHARGE FROM SERVICE AND THE DATE
YOUR CLAIM WAS FIRST RECEIVED IN THIS OFFICE. IN THE LETTER OF NOVEMBER
30, 1960, YOU WERE FURTHER ADVISED THAT THE GENERAL ACCOUNTING OFFICE
AND THE DEPARTMENT OF THE ARMY ARE SEPARATE AND DISTINCT AGENCIES OF THE
GOVERNMENT AND THE FILING OF A CLAIM WITH THE DEPARTMENT OF THE ARMY
DOES NOT CONSTITUTE THE FILING OF A CLAIM WITH OUR OFFICE.
IN YOUR LETTER OF MAY 17, 1966, YOU REQUEST THAT YOUR CLAIM BE
RECONSIDERED UNDER THE ACT OF JUNE 24, 1965, PUBLIC LAW 89-50, 79 STAT.
173. THIS LAW WAS ENACTED TO AUTHORIZE MUSTERING-OUT PAY TO A SMALL
NUMBER OF OFFICERS WHO WERE INTEGRATED INTO THE REGULAR ARMY OR AIR
FORCE AFTER JUNE 26, 1950, AND BEFORE JULY 16, 1952, AND WHO WERE
OTHERWISE PRECLUDED FROM RECEIVING THE MUSTERING-OUT PAY BY REASON OF
THEIR FAILURE TO MAKE APPLICATION THEREFOR PRIOR TO THE STATUTORY
DEADLINE DATE OF JULY 17, 1959. ITS PROVISIONS WERE NOT INTENDED TO IN
ANY WAY AMEND OR ABRIDGE THE APPLICATION OF THE ABOVE-QUOTED PROVISIONS
OF THE ACT OF OCTOBER 9, 1940, IN THE MATTER OF CLAIMS AGAINST THE
UNITED STATES. THUS, IT IS NOT FOR CONSIDERATION IN CONNECTION WITH
YOUR CLAIM.
SINCE UNDER THE ACT OF OCTOBER 9, 1940, WE ARE PRECLUDED FROM
CONSIDERING YOUR CLAIM, THERE IS NO FURTHER ACTION OUR OFFICE MAY TAKE
ON THE CLAIM.
B-159015, JUL. 6, 1966
TO SERVO CORPORATION OF AMERICA:
FURTHER REFERENCE IS MADE TO A COPY OF YOUR LETTER OF APRIL 19, 1966,
THE ORIGINAL OF WHICH WAS SENT TO MR. JAMES FULTON, CONTRACTING OFFICER,
ABERDEEN PROVING GROUND, MARYLAND 21005, PROTESTING THE AWARD OF A
CONTRACT UNDER INVITATION FOR BIDS NO. AMC/X/18-001-66-152, TO ANY
OTHER BIDDER.
THE INVITATION, CALLING FOR ONE EACH INFRARED MICROSCOPE IN
ACCORDANCE WITH SPECIFICATIONS SET FORTH ON PAGES 11, 12 AND 13 OF THE
INVITATION, WAS ISSUED ON NOVEMBER 26, 1965. AS A RESULT OF A WIRE FROM
YOUR COMPANY, QUESTIONING CERTAIN OF THE SPECIFICATIONS, AMENDMENT NO. 2
TO THE INVITATION WAS ISSUED, CLARIFYING THE SPECIFICATION. THE
FOLLOWING FOUR BIDS WERE RECEIVED AND WERE OPENED ON JANUARY 19, 1966:
CHART
1. SERVO CORPORATION OF AMERICA $23,823
2. QUANTA LABORATORIES, INC. 46,600
3. BARNES ENGINEERING COMPANY 42,398
4. ELECTRO OPTICAL INDUSTRIES, INC. 8,160
THE LOW BIDDER, ELECTRO OPTICAL INDUSTRIES, INC., WAS DETERMINED TO
BE NONRESPONSIVE TO THE INVITATION IN THAT IT FAILED TO INCLUDE WITH ITS
BID ANY DESCRIPTIVE LITERATURE AS REQUIRED BY THE PROVISIONS OF
AMENDMENT NO. 2 TO THE INVITATION. THE NEXT LOW BID, THAT OF YOUR
COMPANY, WAS TECHNICALLY REVIEWED AND IT WAS DETERMINED THAT YOUR BID
DID NOT MEET THE SPECIFICATION REQUIREMENTS. BY WIRE DATED MARCH 4,
1966, YOUR COMPANY STATED THAT IT WISHED "TO RESTATE THAT OUR BID DID
NOT TAKE EXCEPTION ON QUALIFICATION TO THE SUBJECT IFB.' BECAUSE OF THIS
MESSAGE THE CHIEF, TERMINAL BALLISTICS LABORATORY, OF THE BALLISTICS
RESEARCH LABORATORIES (TBL, BRL) WAS REQUESTED TO HAVE AN INDEPENDENT
TECHNICAL REVIEW MADE BY APPROPRIATE PERSONNEL OF TBL, BRL, FOR THE
PURPOSE OF ASSURING THAT THE BID SUBMITTED BY YOUR COMPANY DID OR DID
NOT, IN FACT, MEET THE SPECIFICATIONS. THE REQUESTED REVIEW WAS MADE BY
A MEMBER OF EXTERIOR BALLISTICS LABORATORY (EBL) AND WAS FURNISHED IN A
DETERMINATION AND FINDING DATED MARCH 30, 1966. THIS REVIEW CONCLUDED
THAT YOUR BID SHOULD BE REJECTED FOR FAILURE TO MEET THE INVITATION FOR
BIDS SPECIFICATIONS. AWARD WAS THEREFORE MADE ON APRIL 11, 1966, TO
BARNES ENGINEERING COMPANY UNDER CONTRACT NO. DA 18-001-AMC-1062 (X).
THE BASIS OF YOUR PROTEST AS SET FORTH IN YOUR LETTER DATED APRIL 19,
1966, IS THAT A PROCUREMENT DIVISION REPRESENTATIVE AT ABERDEEN PROVING
GROUND HAD STATED THAT THE ABSTRACT FILED BY ARMY PERSONNEL WHO
EVALUATED THE PROPOSALS GAVE ONLY ONE REASON FOR ELIMINATING YOUR
COMPANY AS
FOLLOWS:
"REJECTED BECAUSE SPECIFICATION STATES THAT THE OPTICS MUST NOT LIMIT
WAVELENGTH RESPONSE OUT TO 25 MICRONS IN THE INFRARED. THIS IS
CONSIDERED AN ESSENTIAL SPECIFICATION. BIDDER (SERVO) PROPOSED A BARIUM
FLUORIDE DEWAR WINDOW WITH TRANSMISSION FROM VISIBLE TO 14 MICRONS.
THIS WINDOW
IS PART OF THE OPTICS AND CLEARLY LIMITS THE WAVELENGTH RESPONSE TO
14 MICRONS IN THE INFRARED.'
YOUR LETTER STATES, IN PERTINENT PART, AS FOLLOWS:
"THE BARIUM FLUORIDE WINDOW WE PROPOSED IS AN INTEGRAL PART OF THE
DEWAR WHICH IN TURN IS AN INTEGRAL PART OF THE DETECTOR. THUS, THE
BARIUM FLUORIDE WINDOW IS AN INTEGRAL PART OF THE DETECTOR AND NOT OF
THE PRIMARY OPTICAL SYSTEM. OUR PRIMARY OPTICAL SYSTEM DOES NOT LIMIT
THE WAVELENGTH RESPONSE IN THE VISIBLE SPECTRUM OR OUT TO 25 MICRONS IN
ACCORDANCE WITH SPECIFICATION II.C.
"OUR PROPOSED DETECTOR, MERCURY-DOPED GERMANIUM, MEETS ALL OF THE
REQUIREMENTS OF I.C.
"SINCE THE ARMY DOES NOT REQUIRE THAT THE DETECTOR BE SENSITIVE OUT
TO 25 MICRONS BUT ONLY THAT THE OPTICS TRANSMIT TO 25 MICRONS, IT IS
OBVIOUS THAT THE DETECTOR MUST BE REPLACED SHOULD THE ARMY DECIDE TO
MAKE MEASUREMENTS BETWEEN 7 AND 25 MICRONS.'
THE ADMINISTRATIVE REPORT EFFECTIVELY ANSWERS THE STATEMENTS MADE IN
YOUR PROTEST SETTING FORTH, IN PERTINENT PART, THAT:
"IT IS TRUE THAT THE SPECIFICATIONS REQUIRES DETECTOR RESPONSE TO
WAVE LENGTHS FROM RED TO AT LEAST 7.5 MICRONS. IT IS ALSO TRUE THAT THE
SPECIFICATION REQUIRES THAT THE OPTICS MUST NOT LIMIT THE WAVELENGTH
RESPONSE IN THE VISIBLE SPECTRUM OR OUT TO 25 MICRONS IN THE INFRARED.
WE ARE THEREFORE ASKING FOR A UNIT WHICH WILL GIVE BOTH OF THE
REFERENCED FEATURES, THAT IS, DETECTOR RESPONSE AT LEAST TO 7.5 AND
OPTICS TRANSMISSION OUT TO 25 MICRONS. SUCH AN ARRANGEMENT ALLOWS THE
USE OF DETECTORS OF DIFFERENT TYPES AND CHARACTERISTICS WITHOUT HAVING
TO CHANGE AN ENTIRE INTEGRAL ELEMENT. THIS PROVIDES INCREASED
FLEXIBILITY OF THE EQUIPMENT FOR RESEARCH APPLICATIONS.
THE SPECIFICATIONS WERE WRITTEN IN THIS MANNER TO COVER THE MINIMUM
ESSENTIAL NEEDS OF THE GOVERNMENT.'
WITH REGARD TO THE BARIUM FLUORIDE WINDOW, IT IS POINTED OUT THAT
THERE WAS NO SPECIFICATION BY THE ARMY THAT IT BE AN INTEGRAL AND
INSEPARABLE PART OF THE DETECTOR. YOUR DESIGN, WHICH YOU INDICATE MAKES
THE BARIUM FLUORIDE WINDOW UNDETACHABLE FROM THE DETECTOR, MAY RESULT IN
ADDITIONAL
NEEDLESS COST TO THE GOVERNMENT IN THE FUTURE. THIS IS WHAT THE
SPECIFICATIONS GUARD AGAINST. IT IS THE CONSIDERED CONCLUSION OF THE
ADMINISTRATIVE TECHNICAL REVIEWER THAT THE BARIUM FLUORIDE WINDOW IS AN
OPTICAL ELEMENT ABOUT WHICH THE SPECIFICATIONS ARE CLEAR, THAT WHILE
YOUR COMPANY MANUFACTURES AN INTEGRAL OPTICAL AND DETECTOR SYSTEM
ALLOWING INTEGRAL SUBSTITUTION OF OPTICAL AND SENSING DEVICE, THE BRL
SPECIFICATION REQUIREMENTS FOR THE BAND TRANSMISSION CHARACTERISTICS MAY
NOT BE DISREGARDED. IT IS FURTHER REPORTED THAT IT WAS THE INTENT OF
THE PROCUREMENT THAT THE OPTICAL SYSTEM HAVE THE RESPONSE REQUIRED BY
THE PROCUREMENT SPECIFICATIONS AND ALLOW USE OF AN INDEPENDENT SENSING
SYSTEM. SUCH AN ARRANGEMENT ALLOWS THE USE OF SENSING SYSTEMS OF
DIFFERENT TYPES AND CHARACTERISTICS, WITHOUT MODIFICATION OF THE OPTICAL
SYSTEM, THUS PROVING INCREASED FLEXIBILITY OF USE OF THE EQUIPMENT FOR
RESEARCH APPLICATION AND ALLOWING GENERAL USE OF THE INSTRUMENT FOR
SPECIALIZED RESEARCH APPLICATIONS. HENCE, THE USE OF THE DESIGN,
WHEREIN THE OPTICAL AND SENSING SYSTEMS ARE INTEGRAL AS STATED IN YOUR
PROTEST LETTER TO BE THE CHARACTERISTIC OF YOUR PROPOSED DEVICE, RESULTS
IN AN UNRESPONSIVE BID AND ONE NOT IN CONSONANCE WITH THE AIM OF THE
PROCUREMENT.
IT WAS FOUND THAT YOUR INSTRUMENT HAD A PERMANENTLY BUILT-IN DRAIN OF
RADIANT ENERGY IN ITS OPTICAL PATH, THE FOUR REFLECTING MIRRORS IN THE
VIEWING SYSTEM PLUS THE APERTURE IN ONE OF THE REFLECTING MIRRORS,
RESULTING IN OPTICAL LOSSES. IT WAS ALSO FOUND THAT THE DEWAR WINDOW IS
PART OF THE OPTICS AND CLEARLY LIMITS THE WAVELENGTH RESPONSE TO 14
MICRONS IN THE INFRARED, THUS NOT MEETING THE LONG WAVELENGTH
REQUIREMENT OF THE SPECIFICATIONS. IT WAS ADMINISTRATIVELY CONSIDERED
TO BE NOT IN THE INTEREST OF THE GOVERNMENT TO PURCHASE EQUIPMENT AT
WHAT APPEARS TO BE A LOWER PRICE, NOT CONFORMING PRECISELY TO
SPECIFICATION REQUIREMENTS AND WHICH WOULD REQUIRE CONSIDERABLE
EXPENDITURE TO MAKE THE EQUIPMENT GENERALLY USEFUL FOR WIDE RANGE
RESEARCH APPLICATIONS.
ARMED SERVICES PROCUREMENT REGULATION PARAGRAPH 2-404.2 (B) PROVIDES:
"/B) ANY BID WHICH DOES NOT CONFORM TO THE SPECIFICATIONS CONTAINED
OR REFERENCED IN THE INVITATION FOR BIDS SHALL BE REJECTED UNLESS THE
INVITATION AUTHORIZED THE SUBMISSION OF ALTERNATE BIDS AND THE SUPPLIES
OFFERED AS ALTERNATES MEET THE REQUIREMENTS SPECIFIED IN THE
INVITATION.'
SECTION 2305 (C), TITLE 10, U.S.C., PROVIDES, INTER ALIA, THAT AWARDS
SHALL BE MADE WITH REASONABLE PROMPTNESS BY GIVING WRITTEN NOTICE TO THE
RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE THE
MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS
CONSIDERED.
IT IS NOT OUR FUNCTION TO TECHNICALLY EVALUATE BIDS AND PROPOSALS, OR
TO MAKE AN INDEPENDENT DETERMINATION IN THIS CASE AS TO WHETHER YOUR BID
WAS IN COMPLIANCE WITH THE SPECIFICATIONS. SEE, GENERALLY, 17 COMP.
GEN. 554; 19 ID. 587; 40 ID. 35. INDEED, WE ARE NOT EQUIPPED TO DO
SO. IT DOES APPEAR, HOWEVER, THAT YOUR BID WAS EVALUATED IN ACCORDANCE
WITH THE ESTABLISHED EVALUATION PROCEDURE, AND THAT ANOTHER FIRM WAS
DULY SELECTED FOR AWARD UNDER THIS PROCEDURE. SEE 35 COMP. GEN. 174
AND 40 COMP. GEN. 132, 135.
THEREFORE, SINCE THERE IS NO EVIDENCE THAT THE ADMINISTRATIVE ACTION
IN THIS CASE WAS ARBITRARY OR CAPRICIOUS, WE WILL NOT ATTEMPT TO
SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY NOR DO WE
PERCEIVE ANY BASIS UPON WHICH WE COULD OBJECT TO THE AWARD TO A HIGHER
BIDDER. AGENCIES OF THE GOVERNMENT ARE NOT REQUIRED TO MAKE PURCHASES
OF EQUIPMENT NOT FULFILLING THEIR REQUIREMENTS SIMPLY BECAUSE A LOWER
PRICE CAN BE OBTAINED IN THAT WAY.
B-159073, JUL. 6, 1966
TO BUREAU OF NAVAL WEAPONS:
WE REFER TO YOUR LETTER OF APRIL 21, 1966, REQUESTING RECONSIDERATION
OF OUR CLAIMS DIVISION SETTLEMENT CERTIFICATE DATED APRIL 8, 1966,
Z-2316823, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM FOR THE
PERIOD FROM OCTOBER 3 THROUGH OCTOBER 22, 1965, INCIDENT TO YOUR TRAVEL
FROM WASHINGTON, D.C., TO DAYTON, OHIO, AND THE TEMPORARY TRAINING DUTY
YOU PERFORMED AT WRIGHT-PATTERSON AIR FORCE BASE PURSUANT TO YOUR TRAVEL
ORDER NO. T-0612/66 DATED SEPTEMBER 23, 1965, AS AN EMPLOYEE OF THE
SPECIAL PROJECTS OFFICE, BUREAU OF NAVAL WEAPONS, DEPARTMENT OF THE
NAVY.
YOUR LETTER OF FEBRUARY 10, 1966, TO WHICH YOU REFER, INDICATES YOU
ARE CLAIMING ADDITIONAL PER DIEM ONLY FOR 18 3/4 DAYS, FROM OCTOBER 4
THROUGH THREE-FOURTHS OF OCTOBER 22. THAT IS THE TIME YOU WERE IN
DAYTON FOR PURPOSES OF ATTENDING THE SPECIFIED MAINTENANCE MANAGEMENT
TRAINING COURSE. THE RECORD SHOWS THAT, IN LIEU OF YOUR ACTUAL
SUBSISTENCE EXPENSES WHICH YOU CLAIM, ON DISBURSING OFFICER VOUCHER NO.
18984 YOU WERE ALLOWED PER DIEM AT THE RATE OF $7 APPLICABLE TO THE
SUBSISTENCE FACILITIES (QUARTERS AND/OR MEALS) WHICH HAD BEEN ARRANGED
FOR PERSONS ATTENDING THE TRAINING COURSE AT THE AIR FORCE BASE.
HOWEVER, YOU SAY YOU DID NOT USE THOSE OFFICIAL FACILITIES BUT THAT YOU
SECURED COMMERCIAL LODGINGS AND MEALS,"BECAUSE IT WAS FELT THAT THE
EXTENSIVE OUTSIDE
STUDY REQUIRED BY THE COURSE COULD BE PERFORMED BETTER IN A PRIVATE
MOTEL ROOM.' FURTHER, YOU SAY THE $7 PER DIEM ALLOWANCE DID NOT COVER
ALL OF THE COSTS OF YOUR COMMERCIAL QUARTERS AND EALS; YOU ESTIMATE A
TOTAL OF $146,"APPROXIMATELY 45 PERCENT" OF YOUR COSTS, WERE "EXPENSES
INCURRED ESSENTIAL TO THE CONDUCT OF OFFICIAL BUSINESS.' ALSO, YOUR
LETTER OF APRIL 21 SUGGESTS THAT THE SETTLEMENT DID NOT GIVE FULL
CONSIDERATION TO THE "MITIGATING CIRCUMSTANCES" DESCRIBED IN YOUR LETTER
OF FEBRUARY 10. HOWEVER, YOU MAY REST ASSURED THAT EVERY CIRCUMSTANCE
TO WHICH YOU REFER NOW HAS BEEN CAREFULLY CONSIDERED.
OUR DISPOSITION OF YOUR CLAIM MUST TAKE INTO CONSIDERATION THE
PROVISIONS CONTAINED IN THE APPLICABLE REGULATIONS WHICH WERE IN EFFECT
AT THE TIME THE TRAVEL ORDER WAS ISSUED AND DURING THE PERIOD OF YOUR
TRAINING DUTY.
AS INDICATED IN THE SETTLEMENT OF APRIL 8, 1966, THE $7 RATE OF PER
DIEM WHICH BECAME EFFECTIVE SEPTEMBER 1, 1965, AS PRESCRIBED BY CHANGE
2, PART IV, APPENDIX C, VOLUME 2, JOINT TRAVEL REGULATIONS (JTR),
CONSTITUTED THE ONLY RATE OF PER DIEM THAT WAS AUTHORIZED TO BE PAID
DURING THE PERIOD COVERED BY YOUR CLAIM TO EMPLOYEES ATTENDING THE
TRAINING COURSES AT WRIGHT-PATTERSON AIR FORCE BASE. SEE PARAGRAPH
C8101-2H OF SUCH JOINT TRAVEL REGULATIONS. IN SUCH CONNECTION, WE
UNDERSTAND THAT NO DIFFERENT PER DIEM RATE HAD BEEN SPECIFIED FOR
WRIGHT-PATTERSON UNDER THE AUTHORITY OF PARAGRAPH C8101-2A (3) OR
C8051-5 OF THE REGULATIONS. ALSO, OF SIGNIFICANCE IS PARAGRAPH C1057-2
OF SUCH REGULATIONS ISSUED ON JULY 1, 1965, WHICH IS AS FOLLOWS:
"2. TRAINING COURSE REQUIREMENT. EMPLOYEES ATTENDING TRAINING
COURSES WILL BE REQUIRED TO OCCUPY AVAILABLE ADEQUATE GOVERNMENT
QUARTERS. THIS REQUIREMENT APPLIES TO QUARTERS LOCATED WHERE A TRAINING
COURSE IS HELD INCLUDING QUARTERS AVAILABLE IN THE VICINITY OF THE
TRAINING COURSE LOCATION, PROVIDED THAT TRANSPORTATION BETWEEN QUARTERS
LOCATIONS AND TRAINING LOCATION IS FURNISHED WITHOUT COST TO THE
EMPLOYEE, OR REIMBURSEMENT FOR TRANSPORTATION EXPENSE IS AUTHORIZED.
TRAINING COURSE ANNOUNCEMENTS AND TRAVEL ORDERS WILL INCLUDE
APPROPRIATE INSTRUCTIONS ABOUT THE AVAILABILITY AND REQUIRED USE OF
QUARTERS. REDUCED PER DIEM ALLOWANCE PRESCRIBED IN CHAPTER 8 APPLIES.
CERTIFICATES OF NONAVAILABILITY WILL NOT BE ISSUED OR ACCEPTED IF
NON-USE OF ADEQUATE AVAILABLE QUARTERS IS FOR PERSONAL REASONS.'
WHILE IT IS UNFORTUNATE THAT YOU WERE UNFAMILIAR WITH APPENDIX C OF
THE REGULATIONS AND MAY NOT HAVE BEEN GIVEN ANY SPECIFIC ADVICE
CONCERNING THE $7 RATE OF PER DIEM AT WRIGHT-PATTERSON OR CONCERNING THE
UTILIZATION OF GOVERNMENT QUARTERS AT SUCH BASE, SUCH FACT WOULD NOT
WARRANT OUR OFFICE IN ALLOWING ANY GREATER AMOUNT THAN PROVIDED FOR IN
YOUR ORDERS AND UNDER THE CONTROLLING REGULATIONS REFERRED TO ABOVE.
THEREFORE, BASED UPON THE PRESENT RECORD, THE DISALLOWANCE OF YOUR
CLAIM IS SUSTAINED.
B-159416, JUL. 6, 1966
TO AUTHORIZED CERTIFYING OFFICER, NATIONAL PARK SERVICE:
THIS REFERS TO YOUR LETTER OF MAY 23, 1966, FILE P-14, AND
ENCLOSURES, REQUESTING OUR DECISION AS TO WHETHER THE CLAIM OF EVELYN R.
WEIGMAN, AN EMPLOYEE OF THE NATIONAL PARK SERVICE, FOR BACK PAY MAY BE
APPROVED WITHIN THE PROVISIONS OF PUB.L. 89-380, APPROVED MARCH 30,
1966.
IT APPEARS FROM YOUR LETTER AND OTHER PAPERS SUBMITTED THAT MRS.
WEIGMAN MADE APPLICATION FOR OPTIONAL RETIREMENT AS OF DECEMBER 26,
1965, AND PURSUANT THERETO WAS SEPARATED FROM SERVICE EFFECTIVE THAT DAY
AND WAS GIVEN A LUMP-SUM PAYMENT FOR HER ANNUAL LEAVE COVERING A
SUFFICIENT NUMBER OF HOURS TO HAVE CARRIED HER THROUGH MARCH 22, 1966,
HAD SHE GONE ON LEAVE RATHER THAN RETIRING.
UPON CONSIDERATION OF HER APPLICATION FOR RETIREMENT THE CIVIL
SERVICE COMMISSION FOUND THAT MRS. WEIGMAN WAS NOT ELIGIBLE FOR
RETIREMENT FOR THE REASON THAT CERTAIN SERVICES SHE HAD RENDERED DURING
THE PERIODS FROM JULY 20, 1937, TO DECEMBER 5, 1938, AND FROM AUGUST 17,
1939, TO OCTOBER 25, 1939,"WERE PROJECT SERVICE WITH THE W.P.A. AND ARE
NOT CREDITABLE FOR RETIREMENT PURPOSES," AND THEREFORE SHE DID NOT HAVE
THE REQUIRED YEARS OF SERVICE. THE DECISIONS OF THE COMMISSION IN THAT
REGARD ARE NOT SUBJECT TO REVIEW EITHER BY THE EMPLOYING AGENCY OR BY
OUR OFFICE. FURTHERMORE, IT IS SHOWN THAT AS EARLY AS OCTOBER 1, 1956,
MRS. WEIGMAN WAS ADVISED BY THE COMMISSION THAT THE PROJECT SERVICE IN
QUESTION WAS NOT CREDITABLE FOR RETIREMENT PURPOSES.
MRS. WEIGMAN RETURNED TO DUTY ON MARCH 1, 1966, REFUNDED THAT PORTION
OF HER LUMP-SUM ANNUAL LEAVE PAYMENT FOR THE PERIOD MARCH 1 THROUGH
MARCH 22, 1966, AND HAS BEEN RECREDITED WITH 128 HOURS OF ANNUAL LEAVE
COVERED BY SUCH REFUND. HOWEVER, SHE APPARENTLY BELIEVES THAT HER
SEPARATION FROM SERVICE FROM DECEMBER 27, 1965, THROUGH FEBRUARY 28,
1966, CONSTITUTES "AN UNJUSTIFIED AND UNWARRANTED PERSONNEL ACTION"
WITHIN THE MEANING OF PUB.L. 89-380.
SECTION 3 OF PUB.L. 89-380 PROVIDES:
"EACH CIVILIAN OFFICER OR EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF
AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND, ON OR
AFTER THE DATE OF ENACTMENT OF THIS ACT, BY APPROPRIATE AUTHORITY UNDER
APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR
UNWARRANTED PERSONNEL ACTION TAKEN PRIOR TO, ON, OR AFTER THE DATE OF
ENACTMENT OF THIS ACT, WHICH HAS RESULTED IN THE WITHDRAWAL OR REDUCTION
OF ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF SUCH
OFFICER OR EMPLOYEE---"
IN HIS REPORT ON H.R. 1647 (CONTAINED IN SENATE REPORT NO. 1062,
DATED MARCH 10, 1966) MR. JOHN W. MACY, JR., CHAIRMAN OF THE UNITED
STATES CIVIL SERVICE COMMISSION, MADE THE FOLLOWING REMARKS IN
CLARIFICATION OF THE STATUTORY LANGUAGE QUOTED ABOVE:
"* * * IT LIMITS COVERAGE TO UNJUSTIFIED OR UNWARRANTED ACTIONS TAKEN
ON OR AFTER THE DATE OF ENACTMENT, EXCEPT FOR (1) TIMELY EMPLOYEE
APPEALS NOT YET DECIDED AT THE TIME OF ENACTMENT, AND (2) PRIOR ACTIONS
REVIEWED AT AGENCY DISCRETION AND CORRECTED ON WHICH THE DECISION
FAVORABLE TO THE EMPLOYEE IS MADE ON OR AFTER THE DATE OF ENACTMENT,
WHETHER OR NOT THE REVIEW WAS BEGUN BEFORE ENACTMENT. * * *"
THUS, ASIDE FROM ANY QUESTION AS TO WHETHER THE PERSONNEL ACTION
TAKEN IN MRS. WEIGMAN'S CASE WAS UNJUSTIFIED OR UNWARRANTED WITHIN THE
MEANING OF THE ACT IT IS CLEAR THAT PUB.L. 89-380 IS NOT APPLICABLE
THERETO SINCE SHE WAS RESTORED TO DUTY PRIOR TO THE DATE OF ENACTMENT OF
THAT LAW. SEE DECISION OF MAY 23, 1966, B-159133, 45 COMP. GEN. - .
THE BACK PAY PROVISIONS OF THE ACT OF AUGUST 24, 1912, AS AMENDED, 5
U.S.C. 652, LIKEWISE ARE INAPPLICABLE IN THIS CASE, IT HAVING BEEN HELD
THAT SUCH PROVISIONS HAVE NO APPLICATION TO VOLUNTARY OR INVOLUNTARY
SEPARATION ON ACCOUNT OF RETIREMENT. SEE ELLMORE V. BRUCKER, 236 F.2D
734 AND MURPHY V. WILSON, 236 F.2D 737. THEREFORE, THE CLAIM OF MRS.
WEIGMAN FOR BACK PAY COVERING THE PERIOD OF SEPARATION MAY NOT BE
ALLOWED. IT IS ASSUMED THAT THE RECORDS WILL BE ADJUSTED TO SHOW MRS.
WEIGMAN IN AN ANNUAL LEAVE STATUS DURING THE PERIOD INVOLVED AND THAT
PROPER ADJUSTMENTS WILL BE MADE CONCERNING DEDUCTIONS FOR RETIREMENT,
INSURANCE, ETC. SEE 11 COMP. GEN. 202.
THE DOCUMENTS ACCOMPANYING YOUR SUBMISSION ARE RETURNED HEREWITH.
THE COPIES ARE BEING RETAINED IN OUR FILES.
B-159435, JUL. 6, 1966
TO AUTHORIZED CERTIFYING OFFICER, FEDERAL AVIATION AGENCY:
THIS REFERS TO YOUR LETTER OF JUNE 1, 1966, WITH ENCLOSURES,
REFERENCE AL-26, FORWARDED HERE BY LETTER OF JUNE 14, 1966, REFERENCE
MS-430, FROM THE ACTING CHIEF, ACCOUNTING PROGRAMS DIVISION, REQUESTING
AN ADVANCE DECISION AS TO WHETHER THE ENCLOSED VOUCHER MAY BE CERTIFIED
FOR PAYMENT.
THE VOUCHER IN THE AMOUNT OF $750.63 REPRESENTS TRAVEL EXPENSES OF
MR. DELBERT B. THOMAS AND HIS DEPENDENTS IN RETURNING TO NORWALK,
CALIFORNIA, FOR HOME LEAVE COMMENCING DECEMBER 18, 1965. PRIOR TO THE
TRAVEL INVOLVED THE EMPLOYEE EXECUTED AN EMPLOYMENT AGREEMENT SHOWING
THAT NORWALK, CALIFORNIA, WAS HIS PLACE OF ACTUAL RESIDENCE FOR HOME
LEAVE PURPOSES. THE INFORMATION FURNISHED REVEALS THAT AT THE TIME OF
MR. THOMAS' EMPLOYMENT WITH THE FEDERAL AVIATION AGENCY HIS EMPLOYMENT
PAPERS SHOWED THAT:
1. ALASKA WAS HIS LEGAL OR VOTING RESIDENCE.
2. HE LEFT THE PACIFIC PLUMBING COMPANY, LOS ANGELES, CALIFORNIA,
FOR THE PURPOSE OF MOVING TO ALASKA.
3. HE ARRIVED IN ALASKA SOMETIME IN AUGUST OR SEPTEMBER 1961.
4. HE WAS EMPLOYED BY THE ALASKA TRADES SUPPLY, INC., ANCHORAGE,
ALASKA, FROM SEPTEMBER 1961 TO JUNE 8, 1962, UNTIL LAID OFF FOR LACK OF
BUSINESS.
ON THE BASIS OF THE FACTS PRESENTED IT WAS ADMINISTRATIVELY
DETERMINED THAT MR. THOMAS' PLACE OF ACTUAL RESIDENCE AT THE TIME OF
EMPLOYMENT WAS ANCHORAGE, ALASKA.
THE AUTHORITY FOR THE PAYMENT OF THE ROUND-TRIP TRAVEL OF EMPLOYEES
AND THEIR IMMEDIATE FAMILIES FROM POSTS OF DUTY OUTSIDE THE CONTINENTAL
UNITED STATES TO THE PLACES OF ACTUAL RESIDENCE IN THE UNITED STATES IS
CONTAINED IN PUB.L. 737, APPROVED AUGUST 31, 1954, 68 STAT. 1008, 5
U.S.C. 73B-3, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:
"* * * EXPENSES OF ROUND TRIP TRAVEL OF EMPLOYEE AND TRANSPORTATION
OF IMMEDIATE FAMILY * * * FROM THEIR POSTS OF DUTY OUTSIDE THE
CONTINENTAL UNITED STATES TO THE PLACES OF ACTUAL RESIDENCE AT TIME OF
APPOINTMENT OR TRANSFER TO SUCH OVERSEAS POSTS OF DUTY, SHALL BE ALLOWED
IN THE CASE OF PERSONS WHO * * * ARE RETURNING TO THEIR ACTUAL PLACE OF
RESIDENCE FOR THE PURPOSE OF TAKING LEAVE * * *.'
UNDER THE ABOVE-QUOTED STATUTORY LANGUAGE THE LOCATION OF THE
EMPLOYEE'S PLACE OF ACTUAL RESIDENCE FOR BOTH SEPARATION AND HOME LEAVE
TRAVEL PURPOSES IS ESTABLISHED AT THE "TIME" OF THE EMPLOYEE'S
APPOINTMENT OR TRANSFER TO THE OVERSEAS POST OF DUTY AND IS NOT AFFECTED
BY CHANGES IN THE EMPLOYEE'S INTENTIONS SUBSEQUENT TO THE "TIME" OF SUCH
APPOINTMENT OR TRANSFER. THE LEGISLATIVE HISTORY OF THE ACT DOES NOT
REVEAL A CONGRESSIONAL INTENT TO THE CONTRARY. 37 COMP. GEN. 846.
THE CITED LAW DOES NOT PRECLUDE CORRECTION OF ERRORS WHEN IT LATER
SHOWS CLEARLY THAT, IN FACT, THE PLACE OF ACTUAL RESIDENCE WAS OTHER
THAN THE PLACE NAMED IN THE EMPLOYMENT PAPERS. A CLEAR SHOWING OF SUCH
AN ERROR DOES NOT APPEAR TO HAVE BEEN MADE IN THIS CASE. THE FACT THAT
MR. THOMAS RETAINED OWNERSHIP OF HIS PROPERTY IN NORWALK WHILE IN
ALASKA IS NOT CONTROLLING AND THERE IS NO EVIDENCE TO INDICATE WHAT HIS
INTENTIONS WERE IN REGARD TO BECOMING A PERMANENT RESIDENT OF ALASKA
WHEN HE MOVED THERE IN AUGUST OR SEPTEMBER 1961, FOR EMPLOYMENT WITH A
PRIVATE CONCERN.
THEREFORE, ON THE BASIS OF THE PRESENT RECORD WE FIND NO BASIS FOR
DISAGREEING WITH THE DETERMINATION OF THE AGENCY THAT ALASKA WAS MR.
THOMAS' ACTUAL RESIDENCE AT TIME OF APPOINTMENT. THE VOUCHER, WHICH IS
RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.
B-123343, JUL. 5, 1966
TO MR. E. GARRISON WOOD:
FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED MAY 23, 1966,
REQUESTING RECONSIDERATION OF (1) THE ACTION TAKEN BY OUR CLAIMS
DIVISION IN SETTLEMENT DATED OCTOBER 2, 1953, DISALLOWING YOUR CLAIM FOR
REIMBURSEMENT OF EXPENSES INCURRED IN THE TRANSPORTATION OF YOUR
HOUSEHOLD EFFECTS FROM READING, PENNSYLVANIA, TO SALEM, VIRGINIA,
INCIDENT TO YOUR DISCHARGE JULY 22, 1949, AND (2) THE ACTION TAKEN IN
SETTLEMENT DATED FEBRUARY 17, 1955, DISALLOWING YOUR CLAIM FOR RENTAL
ALLOWANCE FOR THE PERIOD JULY 25 TO OCTOBER 2, 1947, AS LIEUTENANT
COLONEL, UNITED STATES AIR FORCE.
IN OUR SETTLEMENT OF OCTOBER 2, 1953, YOUR CLAIM WAS DISALLOWED FOR
THE REASON THAT YOU DID NOT FURNISH THE NECESSARY SUPPORTING PAPERS AS
REQUIRED BY PARAGRAPH 22C, EXECUTIVE ORDER NO. 10053, DATED APRIL 20,
1949, GOVERNING THE SHIPMENT OF HOUSEHOLD GOODS OF MEMBERS OF THE
UNIFORMED SERVICES. THE EXECUTIVE ORDER PROVIDED THAT CLAIMS FOR
REIMBURSEMENT OF COST OF SHIPPING HOUSEHOLD EFFECTS SHOULD BE SUPPORTED
BY, AMONG OTHER THINGS, THE ORIGINAL OF THE CARRIER'S BILL, SHOWING THE
DATE SHIPMENT WAS MADE; THE POINT OF ORIGIN AND DESTINATION; WEIGHT OF
PROFESSIONAL BOOKS, PAPERS AND EQUIPMENT; WEIGHT OF OTHER ARTICLES;
THE TOTAL WEIGHT SHIPPED, AND THE AMOUNT OF THE CHARGES, RECEIPTED BY
THE CARRIER'S AGENT TO SHOW PAYMENT IN FULL. YOUR PRESENT LETTER
FURNISHES ONLY APPROXIMATE INFORMATION RELATIVE TO THE SHIPMENT WITHOUT
TRANSMITTING THE NECESSARY EVIDENCE IN SUPPORT OF THE CLAIM, AS
ENUMERATED IN EXECUTIVE ORDER NO. 10053, AND IS THEREFORE NOT SUFFICIENT
TO AUTHORIZE PAYMENT OF YOUR CLAIM.
ACCORDINGLY, IN THE ABSENCE OF RECEIPTS, CARRIER'S BILLS, OR OTHER
EVIDENCE OF THE COSTS YOU INCURRED IN SHIPPING YOUR EFFECTS, THERE IS NO
BASIS UPON WHICH REIMBURSEMENT MAY BE MADE. THEREFORE, THE ACTION TAKEN
BY OUR CLAIMS DIVISION ON OCTOBER 2, 1953, RELATIVE TO THAT CLAIM IS
SUSTAINED.
WITH RESPECT TO YOUR CLAIM FOR RENTAL ALLOWANCE, OUR RECORDS SHOW
THAT A SETTLEMENT CERTIFICATE WAS ISSUED BY OUR CLAIMS DIVISION ON
AUGUST 16, 1955, BY WHICH YOU WERE ALLOWED RENTAL ALLOWANCE IN THE
AMOUNT OF $234.50 FOR THE PERIOD FROM JULY 26 TO OCTOBER 2, 1947, WITH
THE NOTATION THAT YOU HAD BEEN PREVIOUSLY PAID FOR JULY 25. THE AMOUNT
ALLOWED WAS OFFSET AGAINST YOUR INDEBTEDNESS TO THE UNITED STATES OF
$385.20 ON ACCOUNT OF ALLOTMENT OVERPAYMENT, THEREBY REDUCING YOUR
OUTSTANDING INDEBTEDNESS TO $150.70.
B-158961, JUL. 5, 1966
TO PIERCY AND ROGERS, ATTORNEYS AT LAW:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 13, 1966, WITH ENCLOSURE,
REQUESTING RECONSIDERATION OF OUR DECISION DATED MAY 19, 1966, B-158961,
WHICH AFFIRMED THE PRIOR ACTION TAKEN IN DISALLOWING THE CLAIM OF MR.
KENNETH K. LIND.
IN YOUR LETTER REQUESTING REVIEW YOU STATE THAT WITH RESPECT TO THE
SIGNIFICANT FACTS CONCERNING THIS MATTER, OUR RECENT LETTER IS
INCOMPLETE IN SOME REGARDS, AND INCORRECT IN OTHERS. YOU ENCLOSE A COPY
OF MR. LIND'S LETTER OF OCTOBER 20, 1965, WHICH YOU ALLEGE CLEARLY SETS
FORTH BACKGROUND AND CIRCUMSTANCES INVOLVED IN THIS MATTER. YOU STATE
THAT THE POSTPONEMENT OF THE STARTING DATE UNTIL JUNE 30 WAS ENTIRELY
FOR THE CONVENIENCE OF THE GOVERNMENT AND AT THE SPECIAL REQUEST OF
MAJOR ROBINSON WHO STATED THAT THIS WAS THE DATE HE WOULD BE ABLE TO
HAVE THE AREA FREE FOR WORK. YOU FURTHER STATE THAT NOT ONLY WERE THE
PREMISES UNAVAILABLE ON JUNE 30, BUT NO SPECIAL EFFORTS WERE MADE BY THE
GOVERNMENT TO MAKE THEM AVAILABLE BY JULY 1, AND, THEREFORE, THE
GOVERNMENT BREACHED THE CONTRACT.
MR. LIND'S LETTER OF OCTOBER 20, 1965, WAS PART OF THE RECORD UPON
WHICH OUR DECISION OF MAY 19, 1966, WAS BASED. THE FACTS OF RECORD WERE
THOROUGHLY AND CAREFULLY CONSIDERED IN OUR DECISION AND IT WAS CONCLUDED
THAT THE DELAY WAS NOT SO UNREASONABLE AS TO CONSTITUTE A BREACH OF THE
CONTRACT. SINCE YOU HAVE FURNISHED NO NEW MATERIAL FACTS OR EVIDENCE
NOT ALREADY CONSIDERED IN CONNECTION WITH THE CLAIM, OUR PREVIOUS
DECISION WHICH SUSTAINED THE DISALLOWANCE OF MR. LIND'S
B-159402, JUL. 5, 1966
TO MR. BANAAG S. NOVICIO:
THIS REFERS TO YOUR LETTER OF MAY 25, 1966, AND ENCLOSURES,
REQUESTING REVIEW OF OUR SETTLEMENT OF JANUARY 24, 1966, WHICH
DISALLOWED YOUR CLAIM FOR RETROACTIVE ADJUSTMENT IN COMPENSATION BECAUSE
OF ERRORS ALLEGEDLY COMMITTED IN ESTABLISHING YOUR SALARY RATE.
YOU ALLEGE THAT THE FIRST ERROR OCCURRED ON JULY 12, 1953, WHILE YOU
WERE EMPLOYED WITH THE DEPARTMENT OF THE AIR FORCE IN MANILA,
PHILIPPINES. THE RECORD SHOWS THAT ON NOVEMBER 18, 1951, YOU WERE
PROMOTED FROM GRADE F-GS-4, STEP 2 ($0.61 PER HOUR), TO GRADE F-GS-4,
STEP 3 ($0.64 PER HOUR). IN ACCORDANCE WITH ARMY-AIR FORCE WAGE BOARD
LETTER DATED OCTOBER 12, 1951, THE FIVE STEP WAGE SCHEDULE FOR
NON-MANUAL FILIPINO EMPLOYEES (APPLICABLE TO YOU) WAS CONVERTED TO A
FOUR STEP WAGE SCHEDULE, EFFECTIVE DECEMBER 2, 1951. UNDER THE NEW
SCHEDULE STEP 3 BECAME STEP 2 WITH NO CHANGE IN COMPENSATION RATE. A
NOTATION WAS MADE IN YOUR OFFICIAL PERSONNEL FOLDER THAT YOU WERE
CHANGED FROM STEP 3 TO STEP 2 OF GRADE F-GS-4, BUT YOUR SALARY RATE
REMAINED THE SAME ($0.64 PER HOUR).
ON JULY 2, 1952, AFTER THE EFFECTIVE DATE OF THE CHANGE IN YOUR WAGE
SCHEDULE, YOU WERE REDUCED TO A LOWER GRADE. THE PERSONNEL ACTION FORM
EFFECTING THIS REDUCTION PROPERLY SHOWS THAT YOU WERE REDUCED FROM GRADE
F-GS-4, STEP 2 ($0.64 PER HOUR), TO GRADE F-GS-3, STEP 4 ($0.6050 PER
HOUR). ON JANUARY 4, 1953, THE PAY FOR YOUR STEP (F-GS-3, STEP 4) WAS
ADJUSTED TO $0.68 PER HOUR. SUBSEQUENTLY THE POSITION DESIGNATION
F-GS-3 WAS CONVERTED TO LGS-3.
EFFECTIVE JULY 12, 1953, YOU WERE PROMOTED FROM GRADE LGS (FORMERLY
F-GS) 3, STEP 4 (1.36 PESOS OR $0.68 PER HOUR), TO GRADE LGS-4, STEP 2
(1.48 PESOS OR $0.74 PER HOUR). THE PERSONNEL ACTION FORM, DATED JULY
9, 1953, EFFECTING YOUR PROMOTION, CONTAINS A STATEMENT IN THE "REMARKS"
SECTION THAT THE PAY ADJUSTMENT IS AUTHORIZED IN ACCORDANCE WITH SECTION
25.103 (B) OF THE FEDERAL EMPLOYEES PAY REGULATIONS. SINCE THAT SECTION
OF THE PAY REGULATIONS CONCERNS THE APPLICATION OF THE HIGHEST PREVIOUS
RATE RULE, IT IS APPARENT THAT YOUR ADMINISTRATIVE OFFICE INTENDED TO
GIVE YOU THE BENEFIT OF THE HIGHEST SALARY RATE PREVIOUSLY EARNED BY
YOU. THEREFORE, YOUR SALARY RATE WAS FIXED AT STEP 2 OF GRADE LGS-4,
WHICH CONSTITUTED THE HIGHEST SALARY RATE PREVIOUSLY EARNED BY YOU.
HOWEVER, YOU CONTEND THAT SINCE YOU ONCE OCCUPIED STEP 3 OF GRADE F-GS-4
UNDER THE WAGE SCHEDULE IN EFFECT PRIOR TO DECEMBER 2, 1951, YOUR SALARY
SHOULD HAVE BEEN FIXED AT STEP 3 OF GRADE LGS-4 UPON YOUR PROMOTION IN
JULY 1953.
THE HIGHEST SALARY RATE PREVIOUSLY ATTAINED BY YOU PRIOR TO JULY 12,
1953, WAS THE RATE FIXED FOR STEP 3 OF GRADE F-GS-4 ($0.64 PER HOUR)
WHICH WAS CONVERTED TO STEP 2 OF GRADE F-GS-4 ($0.64 PER HOUR) ON
DECEMBER 2, 1951. YOU NEVER OCCUPIED STEP 3 OF GRADE F-GS-4 UNDER THE
REVISED WAGE SCHEDULE AND THE PAY RATE FIXED FOR THAT STEP OF THE
REVISED SCHEDULE WAS NEVER APPLICABLE IN YOUR CASE. WE HAVE HELD THAT
THE HIGHEST PREVIOUS RATE RULE REFERS TO THE SALARY RATE PREVIOUSLY
ATTAINED RATHER THAN TO THE RELATIVE SALARY STEP WITHIN A GRADE. 34
COMP. GEN. 691. THEREFORE, IN FIXING YOUR SALARY RATE UPON YOUR
REPROMOTION TO GRADE 4 ON JULY 12, 1953, IT WAS PROPER FOR YOUR
ADMINISTRATIVE OFFICE TO LOOK TO THE HIGHEST SALARY RATE PREVIOUSLY
ATTAINED BY YOU UNDER THE
CURRENT WAGE SCHEDULE, THAT IS, STEP 2 OF GRADE LGS-4.
YOU ALSO ALLEGE THAT AN ERROR WAS COMMITTED IN ESTABLISHING YOUR
INITIAL SALARY RATE UPON YOUR TRANSFER FROM THE DEPARTMENT OF THE AIR
FORCE TO THE AMERICAN EMBASSY IN MANILA, DEPARTMENT OF STATE, ON
NOVEMBER 21, 1955.
IMMEDIATELY PRIOR TO YOUR TRANSFER YOU WERE BEING PAID COMPENSATION
AT THE RATE OF GRADE LGS-4, STEP 4 (3,328 PESOS PER ANNUM). THE
DEPARTMENT OF STATE FIXED YOUR SALARY AT GRADE FSL-10A (2,580 PESOS PER
ANNUM) WHICH WAS THE MINIMUM STEP OF THE GRADE. YOU CONTEND THAT YOU
SHOULD HAVE BEEN GIVEN THE BENEFIT OF YOUR HIGHEST PREVIOUS RATE EARNED
WITH THE DEPARTMENT OF THE AIR FORCE.
IN SUPPORT OF YOUR CONTENTION YOU CITE SECTION 1105 OF THE FOREIGN
SERVICE ACT OF AUGUST 13, 1946. THAT SECTION CONCERNED THE INITIAL
CLASSIFICATION OF POSITIONS FOR FOREIGN SERVICE STAFF OFFICERS AND
EMPLOYEES WHOSE COMPENSATION SCHEDULE WAS PRESCRIBED BY THAT ACT. IT
DID NOT PERTAIN TO ALIEN CLERKS AND EMPLOYEES WHOSE COMPENSATION IS
ADMINISTRATIVELY FIXED. MOREOVER, SUCH SECTION HAD NO BEARING ON THE
ESTABLISHMENT OF INITIAL RATES OF COMPENSATION OF APPOINTEES THEREAFTER
APPOINTED TO POSITIONS UNDER THE STAFF OFFICER AND EMPLOYEE SCHEDULE.
THE REGULATION APPLICABLE TO YOUR APPOINTMENT WITH THE FOREIGN SERVICE
IS SECTION 912.53 OF VOLUME 1, FOREIGN SERVICE MANUAL, PART IV (DATED
APRIL 22, 1952). SECTION 912.53 PROVIDES AS FOLLOWS:
"APPOINTMENT RATE
"EACH LOCAL EMPLOYEE WILL BE APPOINTED AT A LOCAL CURRENCY SALARY
RATE WITHIN THE CLASS TO WHICH HIS POSITION IS ALLOCATED IN THE POST'S
LOCAL SALARY SCHEDULE. ORDINARILY, IT IS THE BEST PRACTICE TO APPOINT
NEW EMPLOYEES AT THE ENTRANCE RATE (MINIMUM SALARY RATE) OF THE PROPER
CLASS IN ORDER TO AVOID INEQUITIES TO EMPLOYEES WITH LONGER SERVICE AND
PROVIDE THE MAXIMUM USE OF THE CLASS SALARY RANGE FOR PERIODIC
WITHIN-CLASS SALARY PROMOTIONS DURING EMPLOYEE TENURE. A LOCAL EMPLOYEE
MAY BE APPOINTED AT AN INTERMEDIATE STEP RATE OF A CLASS INSTEAD OF THE
MINIMUM SALARY RATE, WHEN HE HAS HAD LONG EXPERIENCE IN THE TYPE OF WORK
REQUIRED OR POSSESSES OTHER EXCEPTIONAL QUALIFICATIONS. LOCAL
EMPLOYMENT PRACTICES AND PREVIOUS EARNINGS OF THE APPOINTEE MAY SERVE AS
A GUIDE FOR THE FOREIGN SERVICE POST IN THIS MATTER.'
UNDER THAT REGULATION APPOINTING OFFICERS AT FOREIGN SERVICE POSTS
MAY CONSIDER THE PREVIOUS EARNINGS OF LOCAL EMPLOYEES WHEN ESTABLISHING
INITIAL SALARY RATES, BUT THEY ARE NOT REQUIRED TO DO SO. THE LANGUAGE
OF THE REGULATION CLEARLY IS PERMISSIVE.
THE RULE IS WELL ESTABLISHED THAT IN THE ABSENCE OF A SHOWING OF A
BONA FIDE ERROR AT THE TIME THE INITIAL SALARY RATE IS FIXED IN THE NEW
POSITION OR GRADE WHEN AN EMPLOYEE IS REEMPLOYED, TRANSFERRED,
REASSIGNED, PROMOTED, REPROMOTED OR DEMOTED, THERE IS NO AUTHORITY TO
CHANGE SUCH INITIAL RATE EITHER RETROACTIVELY OR PROSPECTIVELY. WE HAVE
PERMITTED ADJUSTMENTS IN SUCH RATES IN CERTAIN CASES WHEN BONA FIDE
ERRORS OCCURRED IN FAILURES TO CARRY OUT WRITTEN ADMINISTRATIVE POLICY
OF A NONDISCRETIONARY NATURE OR IN COMPLYING WITH ADMINISTRATIVE
REGULATIONS HAVING MANDATORY EFFECT. 31 COMP. GEN. 15; 34 ID. 380; 39
ID. 550.
AS POINTED OUT ABOVE, THE APPLICABLE REGULATION (SECTION 912.53) WAS
MERELY PERMISSIVE. FURTHERMORE, YOUR ADMINISTRATIVE OFFICE HAS REPORTED
THAT AT THE TIME OF YOUR APPOINTMENT THERE EXISTED NO ESTABLISHED POLICY
TO RECOGNIZE THE HIGHEST PREVIOUS RATE WHEN APPOINTING LOCAL EMPLOYEES.
IN FACT OUR RECORDS INDICATE THAT AT THE TIME OF YOUR EMPLOYMENT WITH
THE EMBASSY IT WAS MUTUALLY UNDERSTOOD THAT YOU WERE ACCEPTING SUCH
EMPLOYMENT AT A CUT IN SALARY. THUS, IT CANNOT BE ESTABLISHED THAT AN
ERROR WAS MADE IN FIXING YOUR SALARY RATE UPON YOUR TRANSFER TO THAT
POSITION AND THERE IS NO LEGAL BASIS TO RETROACTIVELY ADJUST YOUR
SALARY RATE.
B-159415, JUL. 5, 1966
TO AUTHORIZED CERTIFYING OFFICER, GENERAL SERVICES ADMINISTRATION:
THIS REFERS TO YOUR LETTER OF JUNE 10, 1966, WITH ENCLOSURES,
REFERENCE 3BCRPA, REQUESTING OUR DECISION WHETHER YOU MAY CERTIFY FOR
PAYMENT THE ENCLOSED VOUCHER FOR $531.62 IN FAVOR OF MR. EUGENE AIKEN,
JR., AN EMPLOYEE OF THE GENERAL SERVICES ADMINISTRATION.
YOU SAY THAT YOUR ONLY UNCERTAINTY IS THE PAYMENT OF THAT PART
PERTAINING TO THE CLAIM FOR $432.50, THE ACTUAL COST OF MOVING MR.
AIKEN'S HOUSEHOLD GOODS. MR. AIKEN SAID THAT WHEN OBTAINING ESTIMATES
FOR THE MOVE HE FOUND THAT HE COULD HAVE HIS FURNISHINGS MOVED WITHIN
FIVE DAYS BASED ON A MINIMUM WEIGHT OF 4,900 POUNDS, OR HAVE THEM PLACED
IN STORAGE AND HELD FOR CONSOLIDATION WITH OTHER GOODS, AND PAY THE
MOVERS ON THE ACTUAL WEIGHT OF 3,820 POUNDS. MR. AIKEN, ALSO, SAID
THAT HAD HIS HOUSEHOLD GOODS NOT BEEN DELIVERED PROMPTLY, CONTINUED
RESIDENCE AT
HOTEL WITH FOUR CHILDREN, AGES 1 THROUGH 11, MIGHT PROVE DETRIMENTAL
TO THE HEALTH OF HIS WIFE WHO WAS 7 MONTHS PREGNANT AT THE TIME.
BY TRAVEL AUTHORIZATION DATED SEPTEMBER 30, 1965, THE CLAIMANT WAS
DIRECTED TO BEGIN TRAVEL TO HIS NEW DUTY STATION OCTOBER 10, 1965. HIS
DEPENDENTS WERE AUTHORIZED TO TRAVEL AT A LATER DATE. THE DEPENDENTS
DEPARTED THE OLD DUTY STATION NOVEMBER 7, 1965, AND ARRIVED AT THE NEW
DUTY STATION THE SAME DAY. THE EFFECTS--- ACTUAL WEIGHT 3,820 POUNDS
BUT MOVING AS 4,900 POUNDS--- WERE SHIPPED BY MOTOR CARRIER UNDER A BILL
OF LADING DATED NOVEMBER 3, 1965, AND THE DELIVERY RECEIPT WAS SIGNED BY
THE CLAIMANT ON NOVEMBER 5, 1965.
5 U.S.C. 73B-1 (B) (SECTION 1 (B) OF THE ADMINISTRATIVE EXPENSES ACT
OF 1946, 60 STAT. 806, AS AMENDED), READS IN PERTINENT PART AS FOLLOWS:
"IN LIEU OF THE PAYMENT OF ACTUAL EXPENSES OF TRANSPORTATION,
PACKING, CRATING, TEMPORARY STORAGE, DRAYAGE, AND UNPACKING OF HOUSEHOLD
GOODS AND PERSONAL EFFECTS, IN THE CASE OF SUCH TRANSFERS BETWEEN POINTS
IN CONTINENTAL UNITED STATES, REIMBURSEMENT SHALL BE MADE TO THE OFFICER
OR EMPLOYEE ON A COMMUTED BASIS (NOT TO EXCEED THE AMOUNT WHICH WOULD BE
ALLOWABLE FOR THE AUTHORIZED WEIGHT ALLOWANCE) AT SUCH RATES PER ONE
HUNDRED POUNDS AS MAY BE FIXED BY ZONES IN REGULATIONS PRESCRIBED BY THE
PRESIDENT. * * *"
SECTION 2.1D OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, TRANSMITTED
UNDER DATE OF APRIL 30, 1962, EFFECTIVE JUNE 1, 1962, ISSUED UNDER THE
AUTHORITY DELEGATED BY EXECUTIVE ORDER NO. 10530, MAY 10, 1954, AS
AMENDED, PROVIDES IN PERTINENT PART AS FOLLOWS:
"* * * IF THE WEIGHT TRANSPORTED IS LESS THAN THE MINIMUM WEIGHT
CHARGED BY THE COMMERCIAL CARRIER, THE REIMBURSEMENT SHALL BE AT THE
MINIMUM WEIGHT CHARGED INSTEAD OF THE ACTUAL WEIGHT TRANSPORTED.'
WHEN IT APPEARS FROM THE SURROUNDING CIRCUMSTANCES THAT SPACE
RESERVATION SERVICE OR DELIVERY ON A SPECIFIED DATE WAS REASONABLY
NECESSARY TO ACCOMPLISH THE MOVEMENT OF HOUSEHOLD EFFECTS COINCIDENT
WITH THE CHANGE OF STATION, AND A SHOWING IS MADE THAT CHARGES HAVE BEEN
ASSESSED AND PAID ON A MINIMUM-WEIGHT BASIS FOR SUCH SPACE RESERVATION
SERVICE REQUESTED AND FURNISHED, THE SUBJECT PROVISION OF THE
REGULATIONS MAY BE CONSTRUED TO AUTHORIZE REIMBURSEMENT UNDER THE
COMMUTED RATE SYSTEM FOR THE MINIMUM WEIGHT CHARGED RATHER THAN THE
LESSER ACTUAL WEIGHT. SEE B-107822, MARCH 5, 1952. OF COURSE, THE
REIMBURSABLE WEIGHT MAY NOT EXCEED THE MAXIMUM WEIGHT ALLOWED BY LAW.
THE RECORD SHOWS THAT IN ORDER FOR THE CLAIMANT TO PROVIDE PROPER
LIVING CONDITIONS FOR HIS FAMILY AT THE NEW DUTY STATION, IT WAS NOT
UNREASONABLE IN VIEW OF THE NUMBER OF SMALL CHILDREN AND THE PHYSICAL
CONDITION OF HIS WIFE FOR HIM TO REQUEST SPACE RESERVATION SERVICE IN
ORDER TO GET SERVICE WITHIN A LIMITED TIME.
THE RECEIPTED BILL OF LADING SUBMITTED WITH YOUR LETTER OF JUNE 10,
1966, CONTAINS A TYPEWRITTEN NOTATION "RES 700 CU. FT SPACE RES.' ALSO,
THERE APPEARS THEREON UNDER NET WEIGHT A PENCIL NOTATION "3820 AS 4900
LBS.' THE APPLICABLE TARIFF, HOUSEHOLD GOODS CARRIERS BUREAU AGENT
TARIFF NO. 107-B, MF-I.C.C. NO. 121, RULE 5, SPACE RESERVATION, SHOWS
THAT THE NUMBER OF CUBIC FEET ORDERED MULTIPLIED BY 7 POUNDS PER CUBIC
FOOT WOULD BE THE WEIGHT CHARGED FOR THE MOVEMENT OF THE GOODS. THE
TARIFF ALSO PROVIDES THAT FOR SPACE RESERVATION SERVICE THERE IS A
MINIMUM OF 300 CUBIC FEET AND ADDITIONAL SPACE IS ALLOWED IN MULTIPLES
OF 100 CUBIC FEET. IT IS OUR UNDERSTANDING THAT SPACE RESERVATION
SERVICE IS REQUESTED BY A PERSON IN ORDER THAT DELIVERY MAY BE MADE
WITHIN A CERTAIN NUMBER OF DAYS. SINCE THE SPACE THE HOUSEHOLD GOODS
WOULD OCCUPY APPARENTLY WAS FIGURED ON AN ESTIMATED BASIS, THE
RESERVATION OF 700 CUBIC FOOT SPACE DOES NOT APPEAR TO BE OUT OF LINE
EVEN THOUGH THE ACTUAL WEIGHT OF THE HOUSEHOLD GOODS WHEN SHIPPED WAS
DETERMINED TO BE 3,820 POUNDS. THEREFORE, REIMBURSEMENT FOR THE
SHIPMENT OF THE EFFECTS SHOULD BE AT THE COMMUTED RATE PROVIDED IN GSA
BULLETIN FPMR NO. A-2, GENERAL ATTACHMENT A, FOR 4,900 POUNDS; THAT IS
4,900 POUNDS AT $8.50 PER HUNDRED POUNDS OR $416.50.
ACTION ON THE VOUCHER WHICH IS RETURNED HEREWITH SHOULD BE TAKEN IN
ACCORDANCE WITH THE FOREGOING.
B-158673, JUL. 1, 1966
TO TATE ENGINEERING, INC. :
FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 7, 1966, AND THE
COPY OF A LETTER DATED MARCH 8, 1966, PROTESTING AGAINST AWARD OF
CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS NO.
AMC/T/23-195-66-349, ISSUED BY THE UNITED STATES ARMY MOBILITY EQUIPMENT
CENTER, ST. LOUIS, MISSOURI.
THE SUBJECT INVITATION WAS ISSUED ON FEBRUARY 1, 1966, AND CALLED FOR
BIDS FOR FURNISHING AND INSTALLING 5,000 SQUARE FEET OF ELEVATED
FLOORING. IN THE INVITATION, PARAGRAPH 1E OF THE ,STATEMENT OF WORK"
PROVIDED THAT "CONTINUOUS STRINGERS SHALL BE ROLLED STEEL WITH AN
INTEGRAL VINYL RIB UPPERMOST TO SEAL AND PREVENT LATERAL MOVEMENT OF
PANELS. STEEL STRINGERS SHALL BE GALVANIZED.' ON FEBRUARY 12, 1966,
AMENDMENT NO. 1 TO THE INVITATION WAS ISSUED, AND IN PERTINENT PART
AMENDED PARAGRAPH 1E TO READ THAT "STRINGERS SHALL BE ALUMINUM.
CONTINUOUS STRINGERS SHALL BE EXTRUDED ALUMINUM CHANNELS WITH AN
INTEGRAL VINYL RIB UPPERMOST TO SEAL AND PREVENT LATERAL MOVEMENT OF
PANELS.' BID OPENING DATE WAS EXTENDED TO FEBRUARY 23, 1966, AND BY A
LATER AMENDMENT TO FEBRUARY 25, 1966.
IT IS REPORTED THAT TWO BIDS, INCLUDING YOUR BID, WERE RECEIVED.
BOTH BIDS AND ACCOMPANYING DESCRIPTIVE LITERATURE WAS SUBMITTED TO
TECHNICAL PERSONNEL OF THE PROCURING AGENCY AND IT WAS FOUND THAT YOUR
BID WAS NONRESPONSIVE TO THE REQUIREMENTS OF THE INVITATION. IN YOUR
PROTEST, YOU CONTEND THAT YOUR BID WAS BASED ON INFORMATION SUPPLIED BY
THE CONTRACTING OFFICER REPRESENTATIVE AND WAS RESPONSIVE. ALSO, YOU
SAY THAT THE SPECIFICATION, AS WRITTEN, IS PROPRIETARY, LIMITING
COMPLETE COMPLIANCE TO ONE SUPPLIER. YOU FURTHER CONTEND THAT WHILE THE
SUBJECT PROCUREMENT WAS A SMALL BUSINESS SET-ASIDE, THE MANUFACTURER
REPRESENTED BY BUNCE BUILDING CORPORATION IS NOT A SMALL BUSINESS
CONCERN.
CONCERNING YOUR FIRST CONTENTION, THAT YOUR BID WAS RESPONSIVE TO THE
REQUIREMENTS OF THE INVITATION, THE RECORD SHOWS THAT THE FOLLOWING
TECHNICAL EVALUATION AND DETERMINATION WAS MADE OF THE BIDS SUBMITTED:
"3. IT HAS BEEN DETERMINED THAT THE STATEMENT OF WORK IN THE IFB IS
NOT RESTRICTIVE OR PROPRIETARY AS ALLEGED IN THE LETTER OF PROTEST FROM
TATE ENGINEERING, INC. DATED 8 MARCH 1966. IN SUPPORT OF THIS
DETERMINATION, THE FOLLOWING CONSIDERATIONS WERE GIVEN TO EACH ITEM OF
STATEMENT OF WORK.
"A. "THE ELEVATED FLOORING SHALL BE CAPABLE OF SUSTAINING A UNIFORM
LOAD OF 250 PSF OR CONCENTRATED LOAD OF 1000 LBS.'
"DETERMINATION--- A REVIEW OF BROCHURES REVEALS BOTH TATE
ENGINEERING, INC. AND LISKEY ALUM, INC. CONFORM TO THESE REQUIREMENTS.
"B. "THE ELEVATED FLOOR SHALL CONSIST OF 2 FEET BY 2 FEET MODULAR
TILE-COVERED PANELS, SUPPORTED AND POSITIONED ON ALL SIDES BY A RIGID
GRID SYSTEM OF PEDESTAL-SUPPORTED CONTINUOUS STRINGERS. CONTINUOUS
STRINGERS SHALL BE SECURELY FASTENED TO THE PEDESTAL CAPS. THE
SUPPORTING STRUCTURE OF THE FLOOR SYSTEM SHALL BE LATERALLY STABLE IN
ITSELF IN ALL DIRECTIONS AND SHALL NOT DEPEND ON THE FLOOR PANELS FOR
STABILITY. FLOOR PANELS AND STRINGERS WILL INTERLOCK WITH FLOOR PANELS
AND STRINGERS INSTALLED AT DOORS 4, 6 AND 8 IN ROOMS 106 AND 107 OF THE
ADPE CENTER.'
"A REVIEW OF THE BROCHURES REVEALS THAT BOTH COMPANIES WOULD FURNISH
PANELS 2 FEET BY 2 FEET IN SURFACE DIMENSIONS. THE TATE PANEL IS A
MAXIMUM OF 1 1/4 INCHES THICK AND THE LISKEY PANEL IS 1 3/16 INCHES
THICK. THERE IS, HOWEVER, A SIGNIFICANT DIFFERENCE IN DESIGN OF THE TWO
PANELS WHICH EFFECTS THE BEARING ON THE STRINGERS. THE LISKEY DESIGN
PROVIDES FOR THE UNDER SURFACE OF THE PANEL AT ALL EDGES TO REST ON THE
STRINGERS, THUS MAINTAINING A DEPTH OF 1 3/16 INCHES FROM TOP OF
STRINGER TO TOP OF PANEL. THE TATE DESIGN IS UNDERCUT ON ALL EDGES TO
PROVIDE A PROJECTION OF APPROXIMATELY 1/4 INCH BY 1/4 INCH AT THE TOP.
IT IS ON THIS PROJECTION THAT THE PANEL IS HUNG TO THE STRINGER AND THE
RESULT IS A REDUCED BEARING SURFACE AND A DEPTH OF ONLY 1/4 INCH FROM
TOP OF STRINGER TO TOP OF PANEL. THE DIFFERENCE IN ELEVATION BETWEEN
THE TWO TYPES OF FLOORING COULD BE AS MUCH AS 15/16 INCH, AND THIS
OBVIOUSLY WOULD CREATE A SERIOUS OBSTRUCTION TO PROPER INTERLOCKING AT
DOORS 4, 6 AND 8.
"IN REGARDS TO THE CONTINUOUS STRINGERS BEING ATTACHED TO THE
PEDESTAL CAPS, THE TATE BROCHURE INDICATES THAT THE SHORT LENGTH
STRINGERS WOULD BE BOLTED TO THE PEDESTAL WITH ONE BOLT AND A TATE
CLAMP. THE LISKEY BROCHURE INDICATES THAT ALL STRINGERS ARE ATTACHED TO
THE PEDESTAL WITH 4 BOLTS AND A HOLDING CLAMP.
"DETERMINATION---
"/1) PANEL SIZE IS NONRESTRICTIVE AND EACH FIRM PROPOSED USING THE
SPECIFIED SIZE.
"/2) STRINGERS ARE NONRESTRICTIVE AND EACH FIRM PROPOSED THE
FOLLOWING:
"/A) TATE ENGINEERING, INC. STRINGER WOULD BE OF STEEL CONSTRUCTION,
WITH EACH STRINGER IN 2-FOOT LENGTHS, BOLTED TO PEDESTAL CAP WITH TATE
CLAMP AND ONE BOLT.
"/B) LISKEY ALUM, INC. STRINGER WOULD BE OF ALUMINUM IN 8-FOOT
LENGTHS IN ONE DIRECTION AND 2-FOOT LENGTHS OF CROSSBRIDGING BOLTED TO
PEDESTAL CAP WITH 4 BOLTS AND CLAMPS.
"DUE TO THE DIFFERENCE IN DESIGN AND THE THICKNESS OF PANELS THE
REQUIREMENTS FOR INTERLOCKING AT DOORS 4, 6 AND 8 COULD NOT BE MET WITH
THE TATE FLOORING. A COMPARISON OF THE TWO DESIGNS OF STRINGERS AND
PANELS AND METHODS OF ATTACHING TO THE PEDESTAL INDICATES THAT THE
LISKEY UNIT IS SUPERIOR AND THAT A GREATER DEGREE OF STABILITY WOULD BE
ACHIEVED.
"C. "PEDESTALS SHALL CONSIST OF A STEEL BASE PLATE 4 INCHES BY 4
INCHES BY 3/16, WELDED TO A 3/4 INCH ROD THREADED 4 INCHES FOR A CADMIUM
PLATED NUT AND LOCKNUT. PEDESTALS SHALL BE PAINTED.'
"A REVIEW OF THE TATE ENGINEERING, INC. BROCHURE AND LETTER OF
EXCEPTIONS, DATED 15 FEBRUARY 1966, REVEALS THAT BASE PLATE WOULD BE 4
INCHES BY 4 INCHES BY 1/8 INCH AND A LOCKNUT WOULD NOT BE FURNISHED, BUT
A SPECIAL SPRING WIRE HOLDER WOULD BE USED. THE LISKEY ALUM, INC.
PEDESTAL CONFORMS TO THE REQUIREMENTS IN ALL RESPECTS.
"DETERMINATION--- PEDESTAL CAPS ARE NONRESTRICTIVE. DIECAST ALUMINUM
IS SPECIFIED BUT NOT BY TYPE OR DESIGN. TATE ENGINEERING QUALIFIED
THEIR BID BY OFFERING STEEL IN LIEU OF ALUMINUM. LISKEY ALUM, INC. TOOK
NO EXCEPTIONS. THE REQUIREMENT FOR USE OF ALUMINUM PEDESTAL CAPS IN
LIEU OF STEEL WAS TO RETARD CORROSIVE DETERIORATION CAUSED BY
ELECTROLYTIC ACTION.
"E. "CONTINUOUS STRINGERS SHALL BE ROLLED STEEL WITH AN INTEGRAL
VINYL RIB UPPERMOST TO SEAL AND PREVENT LATERAL MOVEMENT OF PANELS.
STEEL STRINGERS SHALL BE GALVANIZED.' AMENDMENT NO. 1 CHANGES THIS
PARAGRAPH TO READ "STRINGERS SHALL BE ALUMINUM. CONTINUOUS STRINGERS
SHALL BE EXTRUDED ALUMINUM CHANNELS WITH AN INTEGRAL VINYL RIB UPPERMOST
TO SEAL AND PREVENT LATERAL MOVEMENT OF THE PANELS. THE FLOOR HEIGHT
SHOULD BE APPROXIMATELY 8 1/4 INCHES (INCHES). A VINYL SPACING RIDGE
WITH PANEL BEARING SEAL IS TO BE PROVIDED ON TOP OF ALL STRINGERS AS A
PLENUM SEAL.
A 2 FOOT BY 2 FOOT GRID SYSTEM IS REQUIRED WITH MAIN STRINGERS ON 2
FOOT CENTERS.'
"A REVIEW OF TATE ENGINEERING, INC. BROCHURE AND LETTER OF EXCEPTIONS
DATED 15 FEBRUARY 1966, REVEALS THAT STRINGERS WOULD BE OF STEEL AND NO
VINYL RIB WOULD BE FURNISHED SINCE THEIR PANEL IS SUPPLIED WITH A VINYL
RIB ON UPPERMOST EDGE. A CONTINUOUS STRINGER IN ONE DIRECTION WOULD NOT
BE SUPPLIED BUT STRINGERS IN 2 FOOT LENGTHS BOLTED TO PEDESTALS WOULD BE
FURNISHED.
"A REVIEW OF LISKEY ALUM, INC. BROCHURE REVEALS THAT CONTINUOUS
EXTRUDED ALUMINUM STRINGERS WOULD BE USED IN ONE DIRECTION WITH 2 FOOT
ALUMINUM STRINGERS FOR CROSSBRIDGING, BOLTED AT PEDESTALS WITH 4 BOLTS
ON 2 FOOT CENTERS. EACH STRINGER, EITHER CONTINUOUS OR CROSSBRIDGING,
WOULD BE CAPPED IN UPPERMOST SIDE WITH VINYL RIBBING.
"DETERMINATION--- CONTINUOUS STRINGER OF ALUMINUM WITH THE INTEGRAL
VINYL RIB UPPERMOST IS NONRESTRICTIVE INASMUCH AS TYPE, STYLE AND DESIGN
ARE NOT SPECIFIED. ALUMINUM EXTRUSIONS FOR THIS REQUIREMENT ARE
AVAILABLE FROM WAREHOUSES AND MILLS AND THE METHOD OF ATTACHING THE
VINYL THERETO IS OPTIONAL WITH THE CONTRACTOR. TATE ENGINEERING
QUALIFIED THEIR PROPOSAL BY STATING STRINGERS WOULD BE MADE OF STEEL AND
THAT THE VINYL RIB IS INCORPORATED ON PANEL EDGE TRIM RATHER THAN ON THE
STRINGER. THE USE OF STRINGERS OF 2 FOOT INTEGRALS WITH JOINTS AT EACH
POINT WILL PROVIDE A GRID WHICH IS UNSTABLE UNTIL THE PANELS ARE
INSTALLED. VINYL RIBS ON UPPERMOST SIDE OF PANELS WILL NOT PROVIDE
RADIOS SUPPRESSION. THE USE OF STEEL REQUIREMENTS WILL BE CONDUCIVE TO
CORROSIVE DETERIORATION BY CAUSING AN ELECTROLYTIC REACTION.'
THE FOREGOING TECHNICAL EVALUATION BY THE PROCURING AGENCY IS
SPECIFIC IN THE AREAS WHERE YOUR BID WAS NONRESPONSIVE, PARTICULARLY IN
YOUR QUALIFYING YOUR BID BY OFFERING STEEL WHERE ALUMINUM WAS REQUIRED.
IN THIS RESPECT, THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS
WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND FOR DETERMINING FACTUALLY
WHETHER THE GOODS OR SERVICES OFFERED BY BIDDERS MEET THOSE
SPECIFICATIONS IS PRIMARILY FOR THE ADMINISTRATIVE AGENCY INVOLVED. 17
COMP. GEN. 554. THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR
UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE
GOVERNMENT'S NEED IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE
SPECIFICATIONS ARE UNDULY RESTRICTIVE. 30 COMP. GEN. 368; 33 ID. 586.
MOREOVER, WHILE YOU GENERALLY ALLEGE THAT YOUR BID WAS BASED "ON
INFORMATION SUPPLIED BY CONTRACTING OFFICER REPRESENTATIVE," ARTICLE 4
OF THE INVITATION PROVIDED THAT THE GOVERNMENT ASSUMES NO RESPONSIBILITY
FOR ANY CONCLUSIONS OR INTERPRETATIONS MADE BY THE CONTRACTOR ON THE
BASIS OF INFORMATION MADE AVAILABLE BY THE GOVERNMENT.
WITH REGARD TO YOUR ALLEGATION THAT THE MANUFACTURER REPRESENTED BY
BUNCE IS NOT A SMALL BUSINESS CONCERN, THE SMALL BUSINESS ADMINISTRATION
REPORTS THAT BUNCE WOULD UTILIZE THE PRODUCT OF LISKEY ALUMINUM CO. OF
GLEN BURNIE, MARYLAND, WHICH HAS A TOTAL EMPLOYMENT OF LESS THAN 500
PERSONS, CLASSIFYING IT AS A SMALL BUSINESS IN AN INDUSTRY HAVING A
500-EMPLOYEE SIZE STANDARD. IN ANY EVENT, THE RECORD SHOWS THAT THE
BIDS WERE OPENED ON FEBRUARY 25, 1966, AND YOUR PROTEST WAS NOT MADE
UNTIL MARCH 8, 1966. SINCE THIS WAS MORE THAN 5 DAYS AFTER BID OPENING,
IT WAS NOT TIMELY UNDER SECTION 121.3-5 OF THE SMALL BUSINESS SIZE
STANDARDS REGULATION, AND COULD NOT BE CONSIDERED.
IN THE CIRCUMSTANCES, NO LEGAL BASIS EXISTS FOR DISTURBING THE ACTION
OF THE ADMINISTRATIVE OFFICIALS, AND YOUR PROTEST IS DENIED.
B-159290, JUL. 1, 1966
TO THE ADMINISTRATOR OF VETERANS AFFAIRS, VETERANS ADMINISTRATION:
WE ARE IN RECEIPT OF A LETTER DATED MAY 26, 1966, FROM THE DIRECTOR,
SUPPLY MANAGEMENT SERVICE, OFFICE OF MANAGEMENT AND EVALUATION, VETERANS
ADMINISTRATION, REGARDING AN ALLEGED MISTAKE IN BID AFTER AWARD BY THE
ARMED FORCES SUBSCRIPTION AGENCY (HEREAFTER REFERRED TO AS AFSA),
WASHINGTON, D.C., IN RESPONSE TO INVITATION FOR BIDS NO. M10-1-66,
ISSUED BY THE VETERANS ADMINISTRATION SUPPLY DEPOT, SOMERVILLE, NEW
JERSEY, ON SEPTEMBER 13, 1965.
THE ABOVE-REFERENCED INVITATION SOLICITED BIDS ON FURNISHING VARIOUS
AMERICAN AND FOREIGN PERIODICALS WHICH WERE SEPARATED INTO GROUPS "A"
AND "B" FOR GENERAL AND TECHNICAL JOURNALS, RESPECTIVELY. THE COVER
PAGE ON THE LIST OF PERIODICALS FOR GROUP "B" SHOWS THE TWO METHODS FOR
EVALUATION OF THE BIDS. THE CONTRACTOR WAS PERMITTED TO SUBMIT HIS BID
BY EITHER METHOD. UNDER METHOD ONE THE CONTRACTOR AGREED TO SUPPLY
ITEMS 30010 THROUGH 42460, WITH CERTAIN EXCEPTIONS, FOR A STATED TOTAL
AMOUNT; AND UNDER METHOD TWO THE CONTRACTOR AGREED TO SUPPLY ITEMS
10005 THROUGH 42460, WITH CERTAIN EXCEPTIONS, FOR A STATED TOTAL AMOUNT.
THUS, THE AWARD WAS TO BE MADE, REGARDLESS OF THE METHOD CHOSEN, ON THE
BASIS OF THE TOTAL STATED AMOUNT, OR, THE AGGREGATE BID. THREE FIRMS
RESPONDED TO THE INVITATION AS FOLLOWS:
TABLE
ARMED EBSCO NATIONAL PUBLICATIONS
GROUP FORCES INDUSTRIES COMPANY
------- ------ ---------- --------------------
A $165,095.89 $171,838.42 $171,000
B 369,223.40 380,495.39 370,000
A AND B 532,570.68 549,572.15 NO BID
THESE FIGURES ARE THE NET DOLLAR AMOUNTS.
INASMUCH AS AFSA SUBMITTED THE LOWEST BID, THE CONTRACTING OFFICER
AWARDED IT CONTRACT NO. V-7023-L-136, ON OCTOBER 29, 1965. ON THE SAME
DAY, THE CONTRACTING OFFICER ALSO NOTIFIED AFSA THAT A PERFORMANCE BOND
WAS REQUIRED IN ACCORDANCE WITH THE CONTRACT. AFTER RECEIPT OF THE BOND
AND WHILE PREPARING THE PURCHASE ORDER, THE CONTRACTING OFFICER
DISCOVERED AN ERROR IN THE UNIT PRICE OF ITEM NO. 33850 IN GROUP B. THE
ERROR WAS NOTICED BECAUSE ITEM NO. 33840, DRUG TOPICS, HAD A UNIT PRICE
OF $10.00, WHEREAS ITEM NO. 33850, THE COMBINED PUBLICATIONS DRUG TOPICS
WITH RED BOOK PRICE LIST, HAD A UNIT PRICE OF ONLY $9.00. AFSA WAS THEN
NOTIFIED OF ITS ERROR AND TOLD THAT REGARDLESS OF THE PRICES QUOTED,
THEY WERE OBLIGATED TO SUPPLY BOTH PUBLICATIONS. PAYMENT IN THE FULL
AMOUNT OF THE ORIGINAL CONTRACT PRICE HAS ALREADY BEEN MADE AND
PERFORMANCE HAS BEEN SATISFACTORY.
AFSA SPECIFICALLY REQUESTS AN ADDITIONAL PAYMENT IN THE AMOUNT OF
$1,421.88, WHICH REPRESENTS THE DIFFERENCE BETWEEN THE BID PRICE AND THE
CORRECT PRICE OF $19.00 PER UNIT FOR THE DRUG TOPICS WITH RED BOOK PRICE
LIST, INCLUDING THE STATED DISCOUNT. THE CONTRACT PRICE, AS SO
CORRECTED, WOULD NOT EXCEED THAT OF THE NEXT LOWEST ACCEPTABLE BID.
GENERALLY, A CONTRACT WILL NOT BE REFORMED WHEN A UNILATERAL MISTAKE
IS ALLEGED AFTER THE CONTRACT HAS BEEN AWARDED BECAUSE ONCE A BID HAS
BEEN ACCEPTED, A BINDING CONTRACT IS FORMED AND THE CONTRACTOR MUST BEAR
THE CONSEQUENCES OF HIS OWN MISTAKE. 36 COMP. GEN. 441, 17 COMP. GEN.
575. HOWEVER, WHERE THE CIRCUMSTANCES ARE SUCH THAT, PRIOR TO
ACCEPTANCE OF THE BID, THE CONTRACTING OFFICER HAD ACTUAL OR
CONSTRUCTIVE NOTICE OF THE PROBABILITY OF AN ERROR THEREIN, ACCEPTANCE
OF THE BID DOES NOT RESULT IN A BINDING CONTRACT. IN THE INSTANT CASE
WE FEEL THE CONTRACTING OFFICER DID NOT HAVE CONSTRUCTIVE NOTICE OF THE
PROBABILITY OF ERROR IN AFSA'S BID SINCE, AS NOTED ABOVE, THE AWARD WAS
MADE ON THE BASIS OF THE AGGREGATE BID RATHER THAN ON AN ITEM-BY-ITEM
BASIS. THIS OFFICE HAS HELD WHERE AN AWARD IS TO BE MADE ON THE BASIS
OF AN AGGREGATE BID, THE CONTRACTING OFFICER HAS NO DUTY TO EXAMINE THE
INDIVIDUAL BIDS. SEE B-138212, JANUARY 21, 1959. THEREFORE, WE CANNOT
SAY A REASONABLY PRUDENT CONTRACTING OFFICER IN THIS CASE SHOULD HAVE
BEEN ON NOTICE OF THE PROBABILITY OF ERROR IN AFSA'S BID. FURTHERMORE,
EVEN THOUGH AFSA ACTED IN COMPLETE GOOD FAITH, WE DO NOT FEEL IT IS
UNCONSCIONABLE TO REQUIRE IT TO PERFORM UNDER THE TERMS OF ITS BID SINCE
THE GOVERNMENT CONTRIBUTED IN NO WAY TO THE COMMISSION OR FURTHERANCE OF
THE MISTAKE.
IN VIEW OF THE ABOVE THE PROTEST OF AFSA IS DENIED AND THE REQUEST
FOR AN ADDITIONAL PAYMENT IN THE AMOUNT OF $1,421.88 IS DENIED.
RETURNED IS YOUR FILE, AS REQUESTED.
B-159490, JUL. 1, 1966
TO DIRECTOR, DEFENSE SUPPLY AGENCY:
REFERENCE IS MADE TO A LETTER AND ENCLOSURES DATED JUNE 20, 1966,
FILE DSAH-G, FROM MR. R. F. S. HOMANN, ASSISTANT COUNSEL, REQUESTING
OUR DECISION AS TO WHETHER ITEM 80 OF SURPLUS SALES CONTRACT
44-6088-043, ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, OAKLAND,
CALIFORNIA, AND AWARDED TO J.M.T. SERVICE, HAYWOOD, CALIFORNIA, MAY BE
RESCINDED BECAUSE OF A MISTAKE IN BID ALLEGED AFTER AWARD.
ITEM 80 OF THE SUBJECT CONTRACT CONSISTED OF 14,500 POUNDS OF IRON
AND STEEL SCRAP,"CONSISTING OF INSULATED STEEL WIRE WITH FOREIGN MATTER
CONSISTING OF COPPER STRANDS IN PORTIONS OF SOME RE.' THE BID OF J.M.T.
SERVICE WAS HIGH AT $ .30 PER POUND AND ITEM 80 WAS AWARDED TO THAT
FIRM.
THREE OTHER BIDS WERE SUBMITTED ON ITEM 80, IN THE AMOUNTS OF $
.0511, $ .042, AND $ .0212 PER POUND. CURRENT MARKET APPRAISALS OF $
.005 AND $ .02 PER POUND WERE FURNISHED BY THE OFFICE SALES SPECIALIST
AND THE HOLDING ACTIVITY, RESPECTIVELY, AND THESE APPRAISALS WERE BEFORE
THE CONTRACTING OFFICER AT THE TIME AWARD WAS MADE.
AFTER PAYMENT HAD BEEN MADE, MR. J. L. COSETTI, OWNER OF J.M.T.
SERVICE, ADVISED THE CONTRACTING OFFICER THAT A MISTAKE HAD BEEN MADE ON
THE J.M.T. BID ON ITEM 80, AND THAT THE CORRECT BID SHOULD HAVE BEEN $
.030 PER POUND RATHER THAN $ .30 PER POUND. MR. COSETTI SUBMITTED
WORKSHEETS SUBSTANTIATING HIS ALLEGATION THAT HIS INTENDED BID WAS $
.030 PER POUND, AND REQUESTED THAT THE AWARD OF ITEM 80 TO HIS FIRM BE
RESCINDED. THE CONTRACTING OFFICER RECOMMENDS THAT THE AWARD BE
RESCINDED ON THE GROUNDS THAT THE EVIDENCE SUBMITTED SUBSTANTIATES THE
ALLEGATION OF MISTAKE AS WELL AS THE AMOUNT OF THE INTENDED BID, AND
THAT THE DISPARITY BETWEEN THE J.M.T. BID AND THE OTHER BIDS WAS SO
GREAT THAT IT SHOULD HAVE PLACED HIM ON NOTICE OF THE POSSIBILITY THAT A
MISTAKE HAD BEEN MADE. IT IS POINTED OUT THAT THE J.M.T. BID WAS NEARLY
SIX TIMES THE AMOUNT OF THE NEXT LOWEST BID AND THIRTY TIMES THE AMOUNT
OF THE AVERAGE OF THE TWO MARKET APPRAISALS LISTED ABOVE.
WHILE A WIDE RANGE OF BID PRICES IN SURPLUS SALES ORDINARILY IS NOT
ENOUGH TO PUT THE CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF AN ERROR
BECAUSE OF THE VARIETY OF USES TO WHICH THE SURPLUS MAY BE PUT, WE FEEL
THAT THE FACTS SET OUT ABOVE ARE SUFFICIENT TO SUPPORT A FINDING THAT
THE CONTRACTING OFFICER WAS ON CONSTRUCTIVE NOTICE THAT AN ERROR HAD
BEEN MADE.
ACCORDINGLY, WE AGREE WITH THE CONTRACTING OFFICER'S RECOMMENDATION
THAT THE SUBJECT CONTRACT BE RESCINDED AND THE CONTRACT PRICE REFUNDED
TO J.M.T. SERVICE.
B-104136, JUN. 30, 1966
TO MR. MOSES L. ARNOVITZ:
REFERENCE IS MADE TO YOUR LETTER OF MAY 22, 1966, REQUESTING FURTHER
CONSIDERATION OF YOUR CLAIM FOR $100 WHICH YOU BELIEVE IS DUE YOU AS
MUSTERING-OUT PAY INCIDENT TO YOUR DISCHARGE FROM THE ARMY ON JANUARY
14, 1943. ADDITIONALLY, YOU SEEK INFORMATION AS TO THE TYPE OF
DISCHARGE YOU RECEIVED, THE DISCHARGE CERTIFICATE STATING THAT SUCH
ACTION WAS TAKEN "BY REASON OF C.D.D. SECTION II, ARMY REGULATIONS
615-360 AND 3RD IND., HQ., IRTC, FT MCCLELLAN, ALA., DATED JAN. 7TH,
1943.'
SECTION II OF ARMY REGULATIONS 615-360, NOVEMBER 26, 1942, PROVIDED
FOR A DISCHARGE FROM ARMY SERVICE BASED ON A DISABILITY UNDER A
CERTIFICATE OF DISABILITY FOR DISCHARGE (C.D.D.), AND IT IS INDICATED
THAT SUCH ACTION WAS APPROVED IN YOUR CASE BY 3RD INDORSEMENT, OF
JANUARY 7, 1943, HEADQUARTERS, INFANTRY RESERVE TRAINING CENTER, FT.
MCCLELLAN, ALABAMA.
CONCERNING YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY, YOUR
ATTENTION IS INVITED TO THE FACT THAT THE SERVICE OF 2 MONTHS AND 11
DAYS SHOWN IN YOUR CERTIFICATE OF DISCHARGE WAS "SERVICE FOR LONGEVITY
PAY.' SECTION 9 OF THE PAY READJUSTMENT ACT OF 1942 CH. 413, 56 STAT.
363, AUTHORIZED THE CREDITING OF VARIOUS SERVICE FOR LONGEVITY PAY
PURPOSES INCLUDING "ACTIVE FEDERAL SERVICE" AND INACTIVE "SERVICE IN THE
ENLISTED RESERVE CORPS.' ONLY ACTIVE SERVICE WAS CREDITABLE IN
DETERMINING ENTITLEMENT TO MUSTERING-OUT PAY AND SINCE YOU HAD LESS THAN
60 DAYS OF SUCH SERVICE, THERE IS NO BASIS FOR THE PAYMENT OF YOUR
CLAIM.
B-158125, JUN. 30, 1966
TO WALDENSE D. MALOUF:
THIS REFERS TO YOUR LETTER OF NOVEMBER 8, 1965, AS WELL AS THE
FURTHER CORRESPONDENCE RELATING TO YOUR CLAIM OF PROPRIETARY
INFRINGEMENT IN BEHALF OF PRECISION PLATING AND METAL FINISHING,
INCORPORATED. IT IS CLAIMED THAT PRECISION'S PROPRIETARY PROCESS FOR
THE REPAIR AND FILL OF POROSITY IN LIGHT METAL CASTINGS WAS PUBLISHED IN
A MARTIN-MARIETTA CORPORATION "REVISED SPECIFICATION NO. P 31057, DATED
FEBRUARY 1961, AND ALSO IN A MILITARY SPECIFICATION MPD NO. 3245A,
DATED APRIL 1961.'
WE HAVE CAUSED AN INVESTIGATION TO BE MADE OF YOUR ALLEGATION
CONCERNING MILITARY SPECIFICATION MPD NO. 3245A DATED 25 APRIL 1961.
THE SPECIFICATION COVERS THE REQUIREMENTS FOR SILVER-GOLD PLATED,
ALUMINUM-BASE HIGH-FREQUENCY ELECTRONIC COMPONENTS, AND WAS PREPARED BY
THE ARMY ROCKET AND GUIDED MISSILE AGENCY, REDSTONE ARSENAL, ALABAMA.
THE ARMY REPORTS TO US THAT ALL INFORMATION CONTAINED IN THE
SPECIFICATIONS FROM MARTIN CONCERNING THE PLATING PROCESS WAS OBTAINED
BY THE GOVERNMENT UNDER CONTRACT AND WITH UNLIMITED RIGHTS; AND THAT AT
NO TIME WAS ANY INFORMATION ON THIS SUBJECT RECEIVED BY THE GOVERNMENT
WITH ANY RESTRICTIVE MARKINGS OR NOTICE OF PROPRIETARY RIGHTS. IT IS
FURTHER REPORTED THAT THERE IS NO INDICATION THAT ANY GOVERNMENT
EMPLOYEE IN RESIDENCE AT THE MARTIN COMPANY ORLANDO PLANT OR ANY
GOVERNMENT SUBCONTRACTOR WAS AWARE OF ANY RESTRICTION ON THE DATA
INCORPORATED IN MPD NO. 3245A. THE ARMY STATES THAT THE FIRST
KNOWLEDGE IT HAD OF THIS CLAIM WAS WHEN IT RECEIVED YOUR LETTER DATED
NOVEMBER 20, 1963.
WE RECOGNIZE THAT PRECISION PLATING IS PRESENTLY IN LITIGATION WITH
MARTIN-MARIETTA ON THIS MATTER IN THE FEDERAL DISTRICT COURT, ORLANDO,
FLORIDA. UNDER THE CIRCUMSTANCES WE OFFER NO COMMENTS ON THE MERITS OF
THIS CONTROVERSY.
SINCE YOU HAVE NOT STATED ANY DETAILS TO SUPPORT A SPECIFIC CLAIM
AGAINST THE UNITED STATES IN ANY DEFINITE AMOUNT, WE FIND NO BASIS FOR
ACTION FAVORABLE TO YOUR CLIENT BY THIS OFFICE.
B-158322, JUN. 30, 1966
TO THE MORGAN DRIVE AWAY, INC. :
SUBJECT: DAMAGE TO TRAILER OF SERGEANT CHOYCE MCDOWELL, $6,085
REFERENCE IS MADE TO THE LETTER DATED JANUARY 11, 1966, MORGAN DRIVE
AWAY FILE 10/25 1216-63-58, REQUESTING THAT OUR OFFICE OBTAIN AND REVIEW
THE FILE CONCERNING THE ABOVE MATTER. IT APPEARS FROM THE BILL OF
LADING (B-9643091) AND PAYMENT RECORD THAT MOST OF THE TRANSPORTATION
WAS ACCOMPLISHED BY USE OF RAILROAD SERVICE. THE ABOVE AMOUNT OF THE
DAMAGES, AS COMPUTED BY THE AIR FORCE HAS BEEN DEDUCTED FROM AMOUNTS
OTHERWISE DUE YOUR COMPANY. REFERENCE IS MADE ALSO TO YOUR LETTER OF
FEBRUARY 25, 1966, CONTAINING AN OFFER TO ASSUME LIABILITY FOR 50
PERCENT OF THE AMOUNTS ASSESSED BY THE ADMINISTRATIVE OFFICE CONCERNED
IN COMPROMISE SETTLEMENT OF SIMILAR CLAIMS RELATING TO DAMAGE SUSTAINED
BY THE TRAILERS OF SERGEANTS JACK E. SEIDER, JR. AND ROGER L. SLAUGHTER
WHILE BEING TRANSPORTED BY YOUR COMPANY. THAT COMPROMISE PROPOSAL HAS
BEEN REFERRED TO THE DEPARTMENT OF JUSTICE FOR CONSIDERATION. WE WILL
ADVISE AS TO THE DISPOSITION OF THAT MATTER AS SOON AS WE ARE INFORMED
OF THE DEPARTMENT'S DECISION. NO DEDUCTIONS HAVE BEEN MADE FROM YOUR
COMPANY'S ACCOUNTS TO RECOVER THE AMOUNTS DETERMINED TO BE DUE FOR THE
DAMAGE TO THE TWO TRAILERS CONCERNED IN THAT CASE.
WE HAVE EXAMINED THE MCDOWELL FILE AND HAVE CONSIDERED YOUR
STATEMENTS AS TO STRUCTURAL DEFECTS IN THE MCDOWELL TRAILER. WE ARE,
HOWEVER, UNABLE TO CONCLUDE FROM THE PRESENT RECORD THAT THE
ADMINISTRATIVE DETERMINATION THAT YOUR COMPANY IS LEGALLY RESPONSIBLE
FOR THE DAMAGE INVOLVED IS INCORRECT. IN THE ABSENCE OF CONVINCING
EVIDENCE EXONERATING THE CARRIER FROM LIABILITY WE CANNOT DISTURB THE
ADJUSTMENT MADE BY THE AIR FORCE IN ENFORCING THE DETERMINATION OF
CARRIER LIABILITY.
IN ADDITION, WE NOTE FROM THE FILE THAT YOUR COMPANY WAS PAID CHARGES
OF $1,951.50 FOR THE TRANSPORTATION OF THE MCDOWELL TRAILER. IT HAS
BEEN HELD THAT WHERE FREIGHT IS SO BADLY DAMAGED IN TRANSIT THAT IT
CANNOT BE DELIVERED IN SPECIE THE FREIGHT CHARGES ARE NOT EARNED. THE
WILLDOMINO, 300 F. 5, 21, AND W. A. STACKPOLE MOTOR TRANSPORTATION, INC.
V. MALDEN SPINNING AND DYEING CO., 263 F.2D 47. THE PRESENT RECORD
INDICATES THAT THE TRAILER HERE INVOLVED WAS SO BADLY DAMAGED AS TO BE
UNREPAIRABLE, AND WAS IN FACT SOLD FOR SALVAGE. THE AIR FORCE ALLOWED
YOUR COMPANY CREDIT FOR THE AMOUNT RECEIVED AS SALVAGE. UNDER THESE
CIRCUMSTANCES WE ARE OF THE VIEW THAT ON THE PRESENT RECORD THE FREIGHT
CHARGES WERE NOT EARNED ON THE SHIPMENT. APPROPRIATE COLLECTION ACTION
WILL BE TAKEN TO RECOVER THE TRANSPORTATION CHARGES PAID TO YOUR COMPANY
IN THE EVENT THEY ARE NOT REFUNDED WITHIN A REASONABLE TIME.
B-158524, JUN. 30, 1966
TO THE DAMIANO BROTHERS WELDING COMPANY, INCORPORATED:
REFERENCE IS MADE TO A TELEGRAM DATED MAY 27, 1966, TO OUR OFFICE
FROM THE HONORABLE CLAIBORNE PELL, UNITED STATES SENATOR FROM RHODE
ISLAND, PROTESTING ON YOUR BEHALF THE HANDLING OF A PROCUREMENT OF ONE
HUNDRED CORE UNITS FOR PORTABLE POST OFFICES BY THE BUREAU OF
FACILITIES, POST OFFICE DEPARTMENT. WE HAVE INQUIRED INTO THE MATTER
AND HAVE DISCOVERED THAT THIS IS THE FIRST VOLUME PURCHASE OF THE
SELF-SERVICE POSTAL UNITS AND IT INVOLVES THE FABRICATION OF COMPONENT
PARTS, DELIVERY TO AND ASSEMBLY AT SELECTED SITES IN LOCATIONS
THROUGHOUT THE UNITED STATES.
THREE ATTEMPTS HAVE NOW BEEN MADE TO EFFECTUATE THE PROCUREMENT.
INVITATION FOR BIDS NO. 1261, ISSUED ON MARCH 11, 1966, AND OPENED ON
APRIL 28, 1966, RESULTED IN FIVE BIDS RANGING FROM $12,100 EACH TO
$16,729.36. THE TWO LOWEST BIDS OF $12,100.00 AND $12,155.00 WERE
DISREGARDED AS NONRESPONSIVE AND THE THIRD LOWEST BID, THAT OF YOUR
COMPANY IN THE AMOUNT OF $15,500, WAS CONSIDERED UNREASONABLY HIGH. AN
INDEPENDENT GOVERNMENT ESTIMATE OF THE COST OF PERFORMANCE RANGED FROM
$7,500 TO $8,000 EACH AND ALL BIDS WERE CONSEQUENTLY REJECTED AS
EXCESSIVE.
EACH BIDDER WHO HAD BID ON THE INVITATION WAS SENT A COPY OF REQUEST
FOR PROPOSALS NO. NC-37-66 ISSUED ON MAY 2 COVERING THE SAME
REQUIREMENT. AS A HEDGE AGAINST THE POSSIBILITY OF UNREASONABLE
PRICES SIMPLER DRAWINGS AND SPECIFICATIONS WERE PREPARED AFTER
ISSUANCE OF THE SOLICITATION AND PRIOR TO RECEIPT OF PROPOSALS. THE
FIVE OFFERS RECEIVED RANGED UPWARD FROM THE PRICE SUBMITTED BY YOUR
COMPANY. NEGOTIATIONS WERE UNDERTAKEN WITH YOU, AND A PRE-AWARD SURVEY
TEAM VISITED YOUR COMPANY ON MAY 20, THE DAY AFTER THE CLOSING DATE FOR
RECEIPT OF THE OFFERS. THE TEAM CONCLUDED THAT THE PRICE WAS STILL
UNREASONABLY HIGH AND THE COST BREAKDOWN WHICH YOU FURNISHED INDICATED
THAT IT WOULD BE IMPOSSIBLE TO INDUCE YOU TO REDUCE YOUR PRICE TO AN
AMOUNT CONSIDERED REASONABLE.
INVITATION FOR BIDS NO. 1357, BASED ON FURTHER REVISED SPECIFICATIONS
AND DRAWINGS, WAS ISSUED ON MAY 24 WITH AN OPENING DATE OF JUNE 20. THE
DEPARTMENT ADVISES US THAT LOWER PRICES ARE EXPECTED TO RESULT FROM THE
THIRD SOLICITATION BECAUSE OF THE SIMPLER REQUIREMENTS AND BECAUSE
BIDDERS ARE NOW PERMITTED TO BID ON A REGIONAL BASIS AS WELL AS ON AN
AGGREGATE BASIS. ECONOMIES ARE SAID TO BE LIKELY TO FLOW FROM LOCAL
FABRICATION.
OUR OFFICE HAS NEVER CONDONED THE INDISCRIMINATE ISSUANCE OF
INVITATIONS AND THEIR CANCELLATION AFTER BID OPENING BECAUSE OF THE
DELETERIOUS EFFECT SUCH PROCEDURES ARE BOUND TO HAVE UPON THE MORALE OF
BIDDERS AND THE FAIRNESS OF THE COMPETITIVE BIDDING SYSTEM. AS THE
COURT OBSERVED IN THE MASSMAN CONSTRUCTION COMPANY V. UNITED STATES,
102 CT.CL. 699, AT PAGE 719:
"TO HAVE A SET OF BIDS DISCARDED AFTER THEY ARE OPENED AND EACH
BIDDER HAS LEARNED HIS COMPETITOR'S PRICE IS A SERIOUS MATTER, AND IT
SHOULD NOT BE PERMITTED EXCEPT FOR COGENT REASONS.'
ALTHOUGH THE SAME REASONS DID NOT APPLY WITH EQUAL FORCE TO
NEGOTIATED PROCUREMENTS, WE THINK THE PRINCIPLE IS EQUALLY FOR
APPLICATION.
NEVERTHELESS CONGRESS HAS SEEN FIT TO EMPOWER AGENCY HEADS WITH
AUTHORITY TO REJECT ALL BIDS AND CANCEL INVITATIONS WHEN IT IS IN THE
PUBLIC INTEREST TO DO SO. CF. 41 U.S.C. 253 (B) STATING THAT "* * * ALL
BIDS MAY BE REJECTED WHEN THE AGENCY HEAD DETERMINES THAT IT IS IN THE
PUBLIC INTEREST SO TO DO.' , WHICH HAS EQUAL, IF NOT GREATER,
APPLICATION TO NEGOTIATED PROCUREMENTS. IT HAS FREQUENTLY BEEN HELD
THAT A SOLICITATION OF OFFERS DOES NOT IMPORT ANY OBLIGATION TO ACCEPT
ANY OF THE PROPOSALS RECEIVED, INCLUDING THE LOWEST RESPONSIVE BID.
PERKINS V. LUKENS STEEL CO., 310 U.S. 113; O-BRIEN V. CARNEY, ET AL., 6
F.SUPP. 761; 42 COMP. GEN. 604, 606; 41 ID. 709. THE REGULATIONS
PERMIT THE CANCELLATION OF INVITATIONS WHEN ALL BIDS RECEIVED ARE AT
UNREASONABLE PRICES OR WHEN IT APPEARS THAT THE NEEDS OF THE GOVERNMENT
CAN BE SATISFIED BY A LESS EXPENSIVE ARTICLE DIFFERING FROM THAT ON
WHICH BIDS WERE INVITED. FEDERAL PROCUREMENT REGULATIONS 1-2.404-1 (4)
AND (5). FURTHERMORE THE THREE SOLICITATIONS ISSUED IN THIS CASE
EXPRESSLY RESERVED TO THE GOVERNMENT THE RIGHT TO REJECT ALL BIDS OR
OFFERS.
ALTHOUGH IT IS REGRETTABLE THAT THE SAME REQUIREMENT HAD TO BE
RESTATED AND RESUBMITTED TO COMPETITION THREE TIMES IT APPEARS FROM THE
RECORD THAT THE PROCEDURE WAS UNAVOIDABLE AND NOT ATTRIBUTABLE TO ANY
NEGLIGENCE ON THE PART OF GOVERNMENT OFFICIALS. WE ARE UNAWARE OF ANY
SOUND BASIS UPON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE LEGALITY
OF THE AWARD OF AWARDS PROPOSED TO BE MADE UNDER THE MOST RECENT
INVITATION NOR WOULD WE BE AUTHORIZED TO DIRECT ITS CANCELLATION AND THE
CONSUMMATION OF A CONTRACT WITH YOUR COMPANY PURSUANT TO REQUEST FOR
PROPOSALS NO. NC-37-66. WE MUST THEREFORE ADVISE YOU THAT WE INTEND TO
TAKE NO FURTHER ACTION ON THE MATTER.
B-159061, JUN. 30, 1966
TO CHADWICK, PETRIKIN, SMITHERS AND GINSBURG:
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 27, 1966, AND TO
SUBSEQUENT CORRESPONDENCE, CONCERNING THE PROTEST OF THE UNITED DAIRY
EQUIPMENT COMPANY OF WEST CHESTER, PENNSYLVANIA, AGAINST THE POSSIBLE
AWARD OF A CONTRACT TO THE DAIRY SYNTHESIZING CORPORATION INTERNATIONAL
(DSCT), NEW YORK, NEW YORK, PURSUANT TO REQUEST FOR QUOTATIONS NO.
189-29-66, ISSUED BY THE NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA.
QUOTATIONS WERE REQUESTED FOR ESTABLISHMENT AT THE UNITED STATES
NAVAL BASE, GUANTANAMO BAY, CUBA, OF A MILK RECOMBINING PLANT AND FOR
THE PRODUCTION AND DELIVERY OF DAIRY PRODUCTS TO THE NAVAL SUPPLY DEPOT
AT THE BASE. DSCI APPARENTLY SUBMITTED THE LOWEST RESPONSIVE PROPOSAL
AND IT REMAINED FOR THE CONTRACTING OFFICER TO DETERMINE WHETHER THAT
COMPANY QUALIFIED AS A RESPONSIBLE PROSPECTIVE CONTRACTOR FOR THE
PERFORMANCE OF THE WORK INVOLVED IN ESTABLISHMENT OF THE MILK
RECOMBINING PLANT AND THE SUBSEQUENT PRODUCTION AND DELIVERY OF
RECOMBINED MILK AND MILK PRODUCTS.
IN YOUR LETTER DATED APRIL 27, 1966, A PROTEST WAS ENTERED AGAINST AN
AWARD TO DSCI FOR THE STATED REASON THAT IT HAD NOT BEEN ESTABLISHED
THAT THE COMPANY IS A RESPONSIBLE PROSPECTIVE CONTRACTOR UNDER THE LAWS
AND REGULATIONS PERTAINING TO AWARDS OF GOVERNMENT CONTRACTS. NO
INFORMATION WAS FURNISHED AT THAT TIME IN SUPPORT OF THE PROTEST. A
REPORT WAS THEN REQUESTED AND SUBSEQUENTLY OBTAINED FROM THE DEPARTMENT
OF THE NAVY, INDICATING THAT A DETERMINATION OF RESPONSIBILITY FAVORABLE
TO DSCI HAD BEEN MADE IN ACCORDANCE WITH THE STANDARDS SET FORTH IN
SECTION 1-903 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). THE
SUBSTANCE OF THAT REPORT WAS DISCUSSED WITH REPRESENTATIVES OF YOUR FIRM
AND AN OFFICIAL OF THE UNITED DAIRY EQUIPMENT COMPANY AT A MEETING HELD
IN OUR OFFICE ON JUNE 1, 1966. IT WAS AGREED THAT THE BASIS FOR
OBJECTION TO AN AWARD TO DSCI SHOULD BE PRESENTED IN WRITING AND THAT WE
WOULD THEN REQUEST A SUPPLEMENTAL REPORT FROM THE DEPARTMENT OF THE NAVY
WITH SPECIFIC REFERENCE TO THE CONTENTIONS MADE. YOUR LETTER DATED JUNE
7, 1966, SETS FORTH THE BASIS FOR THE PROTEST AND, AS PREVIOUSLY
ARRANGED, A COPY OF THE LETTER WAS FORWARDED TO THE DEPARTMENT FOR
CONSIDERATION AND REPORT. YOU HAVE BEEN FURNISHED BY LETTER DATED JUNE
16, 1966, A COPY OF THE NAVY'S REPLY OF JUNE 14, 1966, WHICH AFFIRMED
THE DEPARTMENT'S PREVIOUS RECOMMENDATION THAT THE PROTEST BE DENIED.
IT WAS DETERMINED BY THE DEPARTMENT OF THE NAVY THAT DSCI HAS
ADEQUATE FINANCIAL RESOURCES; THAT IT HAS THE ABILITY TO MEET REQUIRED
DELIVERY DATES; THAT IT HAS A SATISFACTORY RECORD OF PERFORMANCE; AND
THAT THERE IS NOTHING TO INDICATE A LACK OF INTEGRITY ON THE PART OF
DSCI.
WITH RESPECT TO THE MATTER OF FINANCIAL RESOURCES, IT WAS REPORTED
THAT THE COMPANY'S ABILITY TO OBTAIN NECESSARY FINANCING WAS VERIFIED BY
THE OFFICE OF NAVAL MATERIAL. DSCI HAD SUBMITTED IN
THAT CONNECTION A CASH FLOW CHART COVERING PROJECTED OPERATIONS UNDER
A CONTRACT WITH THE AIR FORCE BEING PERFORMED IN PAKISTAN, A CONTRACT
WITH THE NAVY WHICH IS BEING PERFORMED IN ROTA, SPAIN, AND THE PROPOSED
CONTRACT FOR PLANT ESTABLISHMENT AND PRODUCTION OF RECOMBINED MILK AND
MILK PRODUCTS. THE COMPANY ALSO SUBMITTED EVIDENCE TO SHOW THAT IT HAD
RECEIVED FROM THE CROWN DISCOUNT CORPORATION A COMMITMENT UP TO $50,000
FOR FINANCING THE PROJECT AT ROTA, SPAIN, AND A LETTER DATED MARCH 30,
1966, FROM THE CENTRAL BANK NEW YORK TRUST COMPANY, STATING THAT THE
BANK WAS PREPARED TO MAKE AVAILABLE TO DSCI UP TO $100,000 BETWEEN MARCH
1966 AND JUNE 1967, AND THAT ,IN EVALUATING YOUR CASH FLOW PROJECTION,
IT WOULD APPEAR THAT THIS SHOULD BE SUFFICIENT TO SUSTAIN ALL YOUR
PRESENT CONTRACTS INCLUDING THE PROSPECTIVE GUANTANAMO CONTRACT.'
IN REGARD TO THE QUESTION OF THE ABILITY OF DSCI TO MEET REQUIRED
DELIVERY DATES, IT WAS ORIGINALLY REPORTED THAT DAIRY PROCESSING
EQUIPMENT IS READILY AVAILABLE ON THE COMMERCIAL MARKET FROM STOCK OR
WITH SHORT DELIVERY REQUIREMENTS. THIS FACT WAS VERIFIED THROUGH
QUOTATIONS RECEIVED BY DSCI IN FEBRUARY 1966 IN CONNECTION WITH THE
PROJECT AT ROTA, SPAIN. ALSO, INVESTIGATION DISCLOSED THAT DSCI HAD
PLACED ORDERS FOR EQUIPMENT FOR USE UNDER THE ROTA CONTRACT, AND THAT
THE COMPANY WAS APPARENTLY MAKING PROGRESS IN A MANNER TO ASSURE TIMELY
PERFORMANCE OF THAT CONTRACT. IT WAS SUBSEQUENTLY REPORTED THAT, DUE TO
GOVERNMENT DELAYS IN RENOVATING THE BUILDING AT ROTA, SPAIN, THE
CONTRACTOR IS NOW IN PROCESS OF INSTALLING EQUIPMENT AND IN PROGRESSING
SATISFACTORILY; THAT PRODUCTION AT ROTA IS ESTIMATED TO COMMENCE BY
JUNE 29, 1966, AND THERE IS NO INDICATION THAT THE CONTRACTOR WILL BE
UNABLE TO MEET THE PRODUCTION REQUIREMENTS; AND THAT, IN FACT, PENDING
COMPLETION OF EQUIPMENT INSTALLATION, DSCI IS HAULING MILK FROM SEVILLE,
SPAIN.
RELATIVE TO THE QUESTION OF WHETHER DSCI HAS A SATISFACTORY RECORD OF
PERFORMANCE, IT WAS REPORTED THAT THE COMPANY HAS BEEN PERFORMING
SATISFACTORILY THE AIR FORCE CONTRACT COVERING OPERATIONS IN PAKISTAN,
AND THAT, EXCEPT FOR THAT CONTRACT AND THE NAVY CONTRACT BEING PERFORMED
IN ROTA, SPAIN, THE COMPANY HAS NOT ENTERED INTO PREVIOUS CONTRACTS WITH
THE GOVERNMENT. WITH RESPECT TO THE AIR FORCE CONTRACT WITH DSCI, THE
NAVY RECEIVED A COMMUNICATION FROM THE AIR FORCE EUROPEAN PROCUREMENT
CENTER-GERMANY, STATING, THAT DSCI "HAS PERFORMED HIGHLY SATISFACTORILY,
IN ACCORDANCE WITH INFORMATION RECEIVED FROM HEADQUARTERS WITHIN THAT
AREA.'
YOUR LETTER DATED JUNE 7, 1966, REFERS TO VARIOUS FACTORS TO BE
CONSIDERED UNDER THE PROVISIONS OF SECTION 1-903, ASPR, IN DETERMINING A
CONTRACTOR'S RESPONSIBILITY, INCLUDING THE QUESTION AS TO WHETHER THE
PROSPECTIVE CONTRACTOR HAS THE NECESSARY ORGANIZATION, OPERATIONAL
CONTROLS AND TECHNICAL SKILLS, OR THE ABILITY TO OBTAIN THEM, AND HAS
THE NECESSARY PRODUCTION, CONSTRUCTION, AND TECHNICAL EQUIPMENT AND
FACILITIES, OR THE ABILITY TO OBTAIN THEM. THE LETTER ALSO REFERS TO
THE NECESSITY FOR AN AFFIRMATIVE DETERMINATION THAT THE PROSPECTIVE
CONTRACTOR MEETS THE STANDARDS FOR QUALIFICATION AS A RESPONSIBLE BIDDER
OR OFFERER, AND STATES THAT ASPR REQUIRES THAT A PREAWARD SURVEY BE
PERFORMED WHEN THE INFORMATION AVAILABLE IS NOT SUFFICIENT TO ENABLE THE
CONTRACTING OFFICER TO MAKE A DETERMINATION REGARDING RESPONSIBILITY.
IT IS CONTENDED THAT A PREAWARD SURVEY WAS REQUIRED IN THIS CASE FOR THE
REASON THAT SUCH A SURVEY WOULD HAVE ADEQUATELY SHOWN THAT DSCI COULD
NOT HAVE BEEN DETERMINED TO BE A RESPONSIBLE PROSPECTIVE CONTRACTOR.
IT IS ALLEGED THAT THERE WAS A DELAY OF APPROXIMATELY SIX MONTHS IN
THE COMMENCEMENT OF PRODUCTION OPERATIONS IN PAKISTAN UNDER THE AIR
FORCE CONTRACT; THAT DSCI ERRONEOUSLY ASSUMED THAT AN $0.08 PER POUND
GOVERNMENT SUBSIDY ON MILK POWDER WOULD BE AVAILABLE; THAT IT APPLIED
FOR A CONTRACT PRICE INCREASE WHICH WAS GRANTED BY THE AIR FORCE; THAT
FOREMOST DAIRIES, A PREVIOUS CONTRACTOR AT ROTA, SPAIN, DID NOT MAKE ITS
FACILITIES AVAILABLE TO DSCI AND IT WAS THEREFORE NECESSARY FOR DSCI TO
INSTALL A PLANT OF ITS OWN; THAT THE ROTA AND GUANTANAMO PROJECTS ARE
CONSIDERABLY MORE EXTENSIVE THAN THE AIR FORCE PROJECT IN PAKISTAN; AND
THAT DSCI MUST MEET A CAPITAL REQUIREMENT OF AT LEAST $200,000 FOR EACH
INSTALLATION AT ROTA AND GUANTANAMO. IN ADDITION, IT IS ALLEGED THAT
THE CONTRACTOR AT EACH OF THESE SITES MUST PROVIDE A SUPPLY OF MILK
INGREDIENTS FOR PERIODS OF APPROXIMATELY SIX MONTHS, INCLUDING THREE
MONTHS' SUPPLY ON HAND AND AN ADDITIONAL PIPE LINE SUPPLY FOR THREE
MONTHS' OPERATIONS.
IT IS FURTHER ALLEGED THAT CREDIT FOR CERTAIN PURCHASES OF SUPPLIES
USED IN PAKISTAN WAS AFFORDED TO AN AFFILIATED CONCERN AND NOT TO DSCI,
AND THERE WAS SUBMITTED A COPY OF A DUN AND BRADSTREET REPORT DATED
MARCH 23, 1966, INDICATING THAT THE COMPANY OBTAINED A CHATTEL MORTGAGE
IN THE AMOUNT OF $27,913.80 ON THE EQUIPMENT INSTALLED AT THE PAKISTAN
SITE; THAT ATTEMPTS TO CONTRACT THE OFFICERS OF DSCI HAD BEEN
DIFFICULT; AND THAT THE COMPANY HAS ADMINISTRATIVE FACILITIES IN A
BUILDING AT ST. THOMAS, VIRGIN ISLANDS, WHICH IS OWNED AND MAINTAINED BY
THE VIRGIN ISLAND MILLS COMPANY. YOU STATE, HOWEVER, THAT AN
INVESTIGATION WOULD SHOW THAT MR. PAUL FRANKEL IS THE SOLE AND ACTIVE
OFFICER IN DSCI, THAT HE HAS NO ADMINISTRATIVE FACILITIES AT ST.
THOMAS, VIRGIN ISLANDS, BUT WAS ENGAGED SOLELY AS AN EMPLOYEE OF THE
VIRGIN ISLAND MILLS COMPANY.
THE DUN AND BRADSTREET REPORT SHOWS THE ADDRESS OF DSCI TO BE 350
FIFTH AVENUE, NEW YORK, NEW YORK. IT LISTS PAUL FRANKEL AS PRESIDENT OF
DSCI, JOEL TURNER AS TREASURER, DANIEL WEITZNER, .D., AS SECRETARY, AND
THE SAME INDIVIDUALS AS DIRECTORS OF DSCI. MR. TURNER HAS TAKEN AN
ACTIVE INTEREST IN THE PROTEST OF THE UNITED DAIRY EQUIPMENT COMPANY,
AND HAS SHOWN THE NEW ADDRESS OF THE COMPANY TO BE 180 MADISON AVENUE,
NEW YORK, NEW YORK. SO FAR AS CONCERNS MR. FRANKEL, IT APPEARS TO BE
IMMATERIAL WHETHER HE HAS BEEN ENGAGED AS AN EMPLOYEE OF THE VIRGIN
ISLAND MILLS COMPANY, SINCE THE RECORD BEFORE US INDICATES THAT HE IS
THE OFFICER OF DSCI WHO IS PRIMARILY RESPONSIBLE FOR SUPERINTENDENCE OF
THE WORK UNDER THE FIRM'S GOVERNMENT CONTRACTS, AND THE RECORD
REASONABLY ESTABLISHES THAT HE HAS THE NECESSARY QUALIFICATIONS FOR SUCH
SUPERVISION. AS A MATTER
OF FACT, THE RECORD OF THE CASE INCLUDES FAVORABLE COMMENTS ON MR.
FRANKEL'S QUALIFICATIONS IN LETTERS DATED FEBRUARY 2, 1961, AND DECEMBER
10, 1963, FROM THE COMPANY WHICH YOU REPRESENT AND VIRGIN ISLANDS MILK,
LTD. THOSE LETTERS SHOW MR. FRANKEL'S EXPERIENCE TO INCLUDE EXPERIENCE
IN THE SELECTION OF EQUIPMENT PLACED IN DAIRY PLANTS, THE INSTALLATION
OF EQUIPMENT AND THE TRAINING AND SUPERVISION OF PLANT OPERATING
PERSONNEL.
IT IS CONTENDED THAT THE NAVY SHOULD HAVE MADE A PREAWARD SURVEY OF
THE OFFERER'S FACILITIES BEFORE AWARDING THE CONTRACT FOR ESTABLISHMENT
AND OPERATION OF THE PLANT IN ROTA, SPAIN. IT IS ALSO CONTENDED THAT
THE PERFORMANCE OF THE FIRM'S CONTRACT IN PAKISTAN WAS FAULTY AND THE
GOVERNMENT STILL DOES NOT HAVE THE BENEFIT OF COMPLETE PERFORMANCE BY
THE COMPANY OF A GOVERNMENT CONTRACT. THE PAKISTAN CONTRACT APPEARS TO
BE STILL IN EFFECT AND THERE HAS NOT BEEN COMPLETE PERFORMANCE UNDER THE
ROTA CONTRACT. HOWEVER, THE NAVY HAS INDICATED THAT PERFORMANCE UNDER
THE ROTA CONTRACT IS PROGRESSING SATISFACTORILY AND, REGARDLESS OF
DIFFICULTIES WHICH MAY HAVE BEEN EXPERIENCED DURING THE EARLY STAGES OF
PERFORMANCE OF THE PAKISTAN CONTRACT, IT IS EVIDENT THAT THE NAVY WOULD
BE JUSTIFIED IN ACCEPTING THE AIR FORCE STATEMENT THAT DSCI HAS
PERFORMED HIGHLY SATISFACTORILY, EVEN THOUGH THAT STATEMENT APPARENTLY
REFERRED TO PERFORMANCE AS A WHOLE WITHOUT REFERENCE TO DELAYS IN
STARTING PRODUCTION OR TO THE CAUSES FOR ANY SUCH DELAYS. APPARENTLY
THE AIR FORCE WOULD NOT HAVE GRANTED A PRICE INCREASE UNLESS, AS
REQUIRED UNDER THE PROVISIONS OF PUBLIC LAW 85-804, 72 STAT. 972, IT WAS
DETERMINED THAT SUCH ACTION WOULD FACILITATE THE NATIONAL DEFENSE. NOR
WOULD IT SEEM TO BE PROPER FOR THE NAVY TO CONSIDER THE GRANTING OF
RELIEF UNDER THAT STATUTE AS AN INDICATION THAT THE CONTRACTOR DOES NOT
HAVE A SATISFACTORY RECORD OF PERFORMANCE INSOFAR AS THE PAKISTAN
CONTRACT IS CONCERNED.
NEITHER DO WE SEE ANY BASIS FOR CONCLUDING THAT THE COMPANY DOES NOT
HAVE SUFFICIENT OR ADEQUATE FINANCIAL RESOURCES FOR PERFORMANCE OF THE
PROPOSED GUANTANAMO CONTRACT BECAUSE IT OBTAINED A LOAN UNDER A CHATTEL
MORTGAGE OF EQUIPMENT INSTALLED AT THE PAKISTAN SITE, NOR BECAUSE, IN
THE COURSE OF PERFORMANCE OF THE PAKISTAN CONTRACT, ONE OR MORE
SUPPLIERS MAY HAVE REFUSED TO ALLOW CREDIT TO DSCI BUT BILLED ONE OR
MORE AFFILIATES OF DSCI IN ACCORDANCE WITH A PRIOR ARRANGEMENT OR
AGREEMENT.
IN THE LATTER CONNECTION, WE DO NOT AGREE WITH YOUR SUGGESTION THAT
THIS WOULD HAVE BEEN IN VIOLATION OF THE SPIRIT IF NOT THE REQUIREMENT
OF ASPR 1-904.3 WHICH PROVIDES, IN PART, THAT AFFILIATED CONCERNS SHALL
BE CONSIDERED AS A SEPARATE ENTITIES IN DETERMINING WHETHER ONE OF THEM
WHICH IS TO PERFORM THE CONTRACT MEETS THE APPLICABLE STANDARDS FOR A
RESPONSIBLE PROSPECTIVE CONTRACTOR. ASPR 1-505.3 REQUIRES THAT CERTAIN
INFORMATION BE SOUGHT FROM THE PROSPECTIVE CONTRACTOR, INCLUDING THE
"FINANCIAL HISTORY OF THE CONTRACTOR AND AFFILIATED CONCERNS," AND THIS
WOULD SEEM REASONABLE TO SUGGEST THAT THERE WOULD BE NO OBJECTION TO
FINANCIAL ARRANGEMENTS BETWEEN AN AFFILIATE AND THE PROSPECTIVE
CONTRACTOR CONCERNING PAYMENT FOR SUPPLIES OR EQUIPMENT TO BE USED IN
PERFORMANCE OF THE PROPOSED CONTRACT.
IT APPEARS FROM YOUR LETTER THAT THERE IS A MISUNDERSTANDING OF THE
TERM "PRE-AWARD SURVEYS," AS USED IN ASPR 905.4. AS STATED IN PARAGRAPH
(A) OF THAT SECTION OF THE ASPR, A PREAWARD SURVEY IS AN EVALUATION OF A
PROSPECTIVE CONTRACTOR'S CAPABILITY AND SUCH EVALUATION MAY BE
ACCOMPLISHED BY USE OF DATA ON HAND, DATA FROM ANOTHER GOVERNMENT AGENCY
OR COMMERCIAL SOURCE, AS ON-SITE INSPECTION OF PLANT AND FACILITIES TO
BE USED FOR PERFORMANCE ON THE PROPOSED CONTRACT, OR ANY COMBINATION OF
THE ABOVE. THE NAVY DID CONDUCT A PREAWARD SURVEY IN THIS CASE,
ALTHOUGH IT APPEARS THAT THE CONTRACTING OFFICER DID NOT REQUEST AN
ON-SITE INSPECTION OF THE ADMINISTRATIVE OR OTHER FACILITIES OF DSCI.
WHETHER OR NOT TO REQUEST AN ON-SITE INSPECTION WAS A MATTER FOR
DECISION BY THE CONTRACTING OFFICER, AND, ALTHOUGH IT MAY VERY WELL BE
THAT AN ON-SITE INSPECTION OF THE FIRM'S ADMINISTRATIVE FACILITIES WOULD
HAVE BEEN APPROPRIATE BEFORE AWARD OF THE ROTA CONTRACT, IT APPEARS THAT
NO USEFUL PURPOSE WOULD BE ACCOMPLISHED BY SUCH AN INSPECTION AT THIS
TIME SINCE THE FIRM HAS ALREADY DEMONSTRATED TO THE SATISFACTION OF THE
DEPARTMENT OF THE NAVY THAT IT IS FULLY CAPABLE OF PERFORMING THE ROTA
CONTRACT, AND SIMILAR CONTRACT PERFORMANCE WOULD BE REQUIRED WITH
RESPECT TO THE PROJECT AT GUANTANAMO BAY, CUBA.
IN OUR OPINION, SINCE DSCI APPEARS TO HAVE THE NECESSARY EXPERIENCE
FOR PERFORMANCE OF THE PARTICULAR WORK, AND THE EVIDENCE APPEARS TO
JUSTIFY THE NAVY'S POSITION THAT NO FACILITIES ARE REQUIRED WITHIN THE
CONTINENTAL LIMITS OF THE UNITED STATES OTHER THAN TO ASSURE PROCUREMENT
OF THE PRODUCTION EQUIPMENT WHICH IS TO BE INSTALLED IN A PLANT BUILDING
FURNISHED BY THE GOVERNMENT,
DETERMINATION OF RESPONSIBILITY FAVORABLE TO DSCI WOULD NOT APPEAR TO
BE SUBJECT TO QUESTION BY OUR OFFICE ON THE GROUND THAT IT IS EITHER
ARBITRARY OR CAPRICIOUS OR NOT MADE IN ENTIRE GOOD FAITH. SEE 43 COMP.
GEN. 228, 230.
SO FAR AS CONCERNS FINANCIAL RESOURCES OR THE QUESTION AS TO THE
ABILITY OF DSCI TO UNDERTAKEN AN ADDITIONAL CONTRACT SIMILAR IN EXTENT
TO THE CONTRACT BEING PERFORMED AT ROTA, SPAIN, THERE IS NOTHING TO
INDICATE THAT THE FIRM HAS ENCOUNTERED FINANCIAL DIFFICULTIES IN
PERFORMANCE OF THE ROTA CONTRACT AND THERE COULD BE A REASONABLE
DIFFERENCE OF OPINION AS TO THE ADDITIONAL AMOUNT REQUIRED TO FINANCE
DSCI'S OPERATIONS IN PAKISTAN UNDER THE AIR FORCE CONTRACT AT ROTA,
SPAIN, AND AT GUANTANAMO BAY, CUBA, IF IT RECEIVED AN AWARD UNDER
REQUEST FOR QUOTATIONS NO. 189-29-66. ACCORDING TO DSCI'S CASH FLOW
CHART, ITS REQUIREMENT WOULD AMOUNT TO APPROXIMATELY $88,000 AS OF JULY
1966, FROM WHICH TIME THE EXPECTED RECEIPTS FROM SALES OF DAIRY PRODUCTS
WOULD EXCEED MONTHLY EXPENDITURES. APPARENTLY, IN VIEW OF THE PROGRESS
ALREADY REPORTED AS HAVING BEEN MADE IN CONNECTION WITH THE CONTRACT
BEING PERFORMED AT ROTA, SPAIN, IT WOULD NOT BE UNREASONABLE TO CONCLUDE
THAT DSCI COULD UNDERTAKE SUCCESSFULLY THE PERFORMANCE OF AN ADDITIONAL
CONTRACT OF THE SAME RELATIVE MAGNITUDE AT THIS TIME.
WE BELIEVE THAT THE NAVY HAS MADE AN ADEQUATE INVESTIGATION OF THE
MATTER AND THAT WE WOULD NOT BE WARRANTED IN TAKING THE POSITION THAT AN
AWARD OF THE GUANTANAMO BAY CONTRACT TO DSCI WOULD BE IMPROPER, IF IT IS
THE NAVY'S FINAL DETERMINATION THAT THE COMPANY IS FULLY CAPABLE OF
MEETING THE REQUIREMENTS OF THE PROPOSED CONTRACT. ACCORDINGLY, THE
PROTEST MADE TO OUR OFFICE CONCERNING THE QUESTION OF THAT FIRM'S
RESPONSIBILITY MUST BE, AND IS, HEREBY DENIED.
WE RECOGNIZE THAT, NOTWITHSTANDING THE LENGTH OF THIS LETTER, WE HAVE
NOT HEREIN TREATED AT LENGTH ALL OF THE CONTENTIONS MADE ON BEHALF OF
YOUR CLIENT. HOWEVER, EACH OF THESE CONTENTIONS HAS BEEN CAREFULLY
CONSIDERED IN RELATION TO THE VALIDITY OF THE DETERMINATION OF
RESPONSIBILITY AND WE HAVE FOUND NOTHING WHICH WOULD WARRANT ANY CHANGE
IN THE CONCLUSION EXPRESSED IN THE
B-159067, JUN. 30, 1966
TO CARDINAL PLASTICS, INCORPORATED:
FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER DATED APRIL 28,
1966, PROTESTING THE ALLEGEDLY RESTRICTIVE CHARACTER OF THE
SPECIFICATIONS UTILIZED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE, PUBLIC HEALTH SERVICE, IN TWO RECENT INVITATIONS FOR BIDS ON
RIGID PLASTIC PIPE. THE SOLICITATIONS TO WHICH YOU REFER ARE INVITATION
FOR BIDS NO. 2999-4-27-66, COVERING A TOTAL QUANTITY OF 47,000 LINEAL
FEET OR TWO AND THREE INCH DIAMETER, POLYVINYL CHLORIDE PIPE, ISSUED ON
APRIL 11, 1966, BY THE INDIAN HEALTH AREA OFFICE, PHOENIX, ARIZONA, AND
INVITATION FOR BIDS NO. 2893-5-2-66, COVERING A TOTAL QUANTITY (AS
AMENDED) OF 96,800 LINEAL FEET OF TWO AND ONE-HALF INCH DIAMETER PIPE,
ISSUED ON APRIL 20, 1966, BY THE INDIAN HEALTH AREA OFFICE, ALBUQUERQUE,
NEW MEXICO. FOUR BIDS ON THE FORMER INVITATION WERE OPENED ON APRIL 27,
1966, BUT NO AWARD HAS BEEN MADE PENDING OUR DECISION OF YOUR PROTEST.
THE LATTER INVITATION WAS SCHEDULED FOR OPENING ON MAY 2 BUT WAS
CANCELLED FOR POSSIBLE RESTRICTIVENESS ON APRIL 29.
YOU OBJECT TO THE PRESCRIPTION IN BOTH SPECIFICATIONS OF A RUBBER
RING SEAL METHOD FOR JOINING THE PIPE FOR THE EXCLUSION OF THE
SOLVENT-WELD METHOD WHICH YOUR COMPANY PROPOSED TO USE IF AWARDED THE
CONTRACTS. BOTH INVITATIONS STIPULATED THAT THE PIPE BE BELLED END,
RING-TITE JOINT COMPLETE WITH THE NECESSARY RUBBER RINGS AND LUBRICANT
FOR ASSEMBLY IN 20 FEET LENGTHS, JOHNS-MANVILLE "RING-TITE PVC 160" OR
ETHYL CORPORATION VIS QUEEN "PVC BELL-RING" OR EQUAL. YOU ASSERT THAT
THE SPECIFICATIONS USED WERE RESTRICTIVE OF COMPETITION BECAUSE THE BELL
AND SPIGOT JOINT HAS BEEN PATENTED BY A SWISS FIRM WHICH HAS LICENSED
ONLY TWO AMERICAN MANUFACTURERS, THE JOHNS-MANVILLE AND ETHYL
CORPORATIONS, TO PRODUCE IT. FURTHERMORE YOU CONTEND THAT THE SLIP
JOINT METHOD OF COUPLING HAS NO ADVANTAGES OVER THE CEMENT WELDED
COUPLING BUT BIDS ON THE FORMER TYPE OF PIPE HAVE BEEN RUNNING BETWEEN
$6 AND $11 HIGHER PER HUNDRED LINEAL FEET.
THAT THE GOVERNMENT WILL HAVE TO PAY A PREMIUM FOR PIPE OF BELL AND
SPIGOT CONSTRUCTION IS AMPLY DEMONSTRATED BY THE RESULTS OF IFB 2999.
ALTHOUGH WE DO NOT KNOW YOUR TOTAL PRICE ON THE PROCUREMENT BECAUSE IT
WAS NOT STATED IN YOUR TELEGRAPHIC BID AND THE CONTRACTING AGENCY
DISREGARDED YOUR OFFER AS NOT BEING IN A FORMAT ACCEPTABLE UNDER THE
TERMS OF THE INVITATION, MOMSEN-DUNNEGAN-RYAN COMPANY PROPOSED TO SUPPLY
A PRODUCT OF THE PLASTEX COMPANY WHICH IS TO BE ASSEMBLED BY MEANS OF
THE SOLVENT WELD JOINT FOR A TOTAL EVALUATED PRICE OF $13,208.73. THE
TOTAL EVALUATED PRICES OF THE OTHER BIDDERS WERE: JOHNS-MANVILLE SALES
CORPORATION-$16,755.60; PIONEER PLUMBING SUPPLY COMPANY (BIDDING ON A
PRODUCT OF THE ETHYL CORPORATION/-$17,500.94; ETHYL
CORPORATION-$18,739.50.
THE DEPARTMENT HAS EXPRESSED THE OPINION, HOWEVER, THAT PIPE OF THE
BELL AND SPIGOT CONFIGURATION IS WORTH THE DIFFERENCE IN PRICE AND SUITS
ITS ACTUAL MINIMUM NEEDS WHEREAS PIPE WHICH MUST BE WELDED TOGETHER DOES
NOT. WE ARE INFORMED THAT THE PIPE BEING PROCURED UNDER THE TWO
INVITATIONS IS REQUIRED FOR SEVERAL PROJECTS TO BE PERFORMED ON INDIAN
RESERVATIONS BY INEXPERIENCED CREWS CONSISTING OF LOCAL PEOPLE RECRUITED
BY THE TRIBES. IT IS REPORTED THAT ALTHOUGH THE INITIAL COST OF
MATERIALS NECESSARY TO PERFORM THE WORK BY THE SOLVENT-WELD METHOD IS
LESS EXPENSIVE, THE TOTAL COST OF A PROJECT PERFORMED BY THE RUBBER
RING-SEAL METHOD, INCLUDING INSTALLATION AND PROVISION FOR THE
LIKELIHOOD OF SUBSEQUENT REPAIRS, RENDERS THE LATTER TECHNIQUE MORE
ATTRACTIVE TO THE PROCURING AGENCY THAN THE FORMER. THE SLIP JOINT
METHOD OF COUPLING IS SAID TO BE SIMPLER TO INSTALL AND LESS SUSCEPTIBLE
TO FAILURE BECAUSE OF SUB-STANDARD WORK OR INEXPERIENCED WORKERS FOR THE
FOLLOWING REASONS. BY THIS TECHNIQUE IT IS POSSIBLE TO LAY PIPE
CONTINUOUSLY AND FREQUENTLY TO TRENCH, INSTALL THE PIPE, TEST, AND
BACKFILL, ALL IN THE SAME DAY. GREAT CARE NEED NOT BE EXERCISED BY THE
WORKMEN. IN CONTRADISTINCTION, A WIDER TRENCH MUST BE DUG
FOR A SOLVENT WELD INSTALLATION TO ACCOMMODATE "SNAKING," THE PIECE
OF TUBING MUST BE JOINED TOGETHER IN THE FIELD USING SPECIALLY
COMPOUNDED PLASTIC SOLVENT, AND THE FINISHED LINE MUST BE PERMITTED TO
CURE PRIOR TO TESTING AND BACKFILLING. MANUFACTURER'S LITERATURE
INDICATES THAT HANDLING OF STRENGTH IS NOT DEVELOPED FOR 30 MINUTES,
ONLY 10 PERCENT OF RATED PRESSURES MAY BE APPLIED DURING THE FIRST FOUR
HOURS, AND THE RATED STRENGTH OF THE PIPE IS NOT ATTAINED FOR ONE OR TWO
DAYS. EXTREME CARE MUST BE EXERCISED TO KEEP THE CONNECTING SURFACES OF
THE JOINTS CLEAN DURING INSTALLATION, TO ASSURE THAT NEITHER TOO LITTLE
NOR TOO MUCH SOLVENT IS APPLIED, AND TO PREVENT THE PIPE FROM MOVING TOO
SOON AFTER THE JOINT IS COMPLETED. IT WOULD APPEAR THAT INSTALLATION BY
THE SOLVENT WELD PROCESS WOULD BE LIKELY TO CONSUME MORE LABOR HOURS PER
JOB BECAUSE OF THE TIME SPAN NECESSARY TO COMPLETE THE INSTALLATION
CYCLE AND EVEN BECAUSE OF THE DIFFICULTIES TO BE ENCOUNTERED WHEN MOVING
FROM ONE JOINT TO THE SUCCESSIVE JOINT SINCE IF THE PREVIOUS JOINT IS
JIGGLED WHILE MAKING UP THE NEXT JOINT BEFORE THE WELD HAS CURED IT IS
SUBJECT TO LEAKING UNDER PRESSURE. THE TESTING PROCEDURE INVOLVED IN
THE SOLVENT WELD LINE, ACCORDING TO THE RECORD BEFORE US, IS MORE
RIGOROUS AND TIME CONSUMING IN THAT COOL WATER SHOULD BE RUN THROUGH THE
COMPLETED PIPELINE TO SHRINK IT TO NORMAL LENGTH PRIOR TO BACKFILLING.
LINE INSTALLED BY THE RUBBER RING-SEAL METHOD CAN BE TESTED IMMEDIATELY
AT THE SPECIFIED PRESSURE, ANY NECESSARY REPAIRS CAN BE MADE AT ONCE,
AND BACKFILLING CAN BE PERFORMED AS PART OF A CONTINUOUS PROCEDURE. IN
SHORT, UNLIKE THE SOLVENT-WELD METHOD, THE BELL AND SPIGOT METHOD
ENABLES A STRICT CONSTRUCTION SCHEDULE TO BE FOLLOWED.
IT ALSO APPEARS THAT THE PUBLIC HEALTH SERVICE HAS IN THE PAST CAUSED
PIPE TO BE LAID BY BOTH PROCEDURES ON MANY OCCASIONS AND IT HAS
INVARIABLY EXPERIENCED BETTER JOINTS AND FEWER REPAIRS WHEN USING THE
METHOD ADVERTISED IN THE SPECIFICATIONS UNDER CONSIDERATION. VARIOUS
MEMORANDA WRITTEN BY GOVERNMENT ENGINEERS AND TECHNICAL PERSONNEL IN THE
RECORD BEFORE US DISCLOSE THAT THE NUMEROUS DEFECTIVE JOINTS ENCOUNTERED
WHEN LAYING PIPE BY THE SOLVENT WELD PROCESS CAN BE IN LARGE MEASURE
ATTRIBUTED TO CONDITIONS OF BLOWING DUST ADHERING TO THE PIPE AFTER
APPLICATION OF THE SOLVENT AND BEFORE THE JOINT IS ASSEMBLED AND TO THE
EFFECT OF EXPANSION AND CONTRACTION ON WEAK JOINTS AFTER INSTALLATION
HAS BEEN COMPLETED. YOU STATE IN YOUR LETTER THAT THE METHOD OF
,SNAKING" THE PIPE INTO THE HOLE SHOULD SUFFICE TO PRECLUDE ANY PROBLEMS
FROM DEVELOPING IN FINISHED LINE AS THE RESULT OF EXPANSION AND
CONTRACTION DUE TO CHANGES IN TEMPERATURE. GOVERNMENT ENGINEERS REBUT
THIS CONTENTION BY ARGUING THAT THE EFFICACY OF THE "SNAKING" TECHNIQUE
IS SEVERELY DIMINISHED BY THE FACT THAT LATERAL MOVEMENT OF THE PIPE IS
NECESSARILY RESTRICTED AFTER THE TRENCH HAS BEEN FILLED AND COMPACTED.
THE QUESTION WHETHER A PARTICULAR SPECIFICATION PERMITS FULL AND FREE
COMPETITION WITHIN THE MEANING OF 41 U.S.C. 253 (A) HAS BEEN HELD TO
DEPEND ON WHETHER OR NOT ONLY THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT
AND NOT THE PERSONAL PREFERENCES OF ADMINISTRATIVE OFFICIALS ARE SET
FORTH AND UPON THE CLARITY OF THE STATEMENT ARTICULATING THESE
REQUIREMENTS. 41 COMP. GEN. 348, 350; ID. 242, 250; ID. 76; 38 ID.
291; 37 ID. 323. WE FIND NO REASONABLE BASIS IN THE RECORD BEFORE US
FOR DOUBTING THAT THE BELL AND SPIGOT COUPLING ARRANGEMENT IS AN
ESSENTIAL FEATURE OF THE VARIOUS PIPELINES PROPOSED TO BE CONSTRUCTED AS
THE RESULT OF THE INVITATIONS UNDER DISCUSSION. THE GOVERNMENT'S
FUNCTIONAL REQUIREMENTS FOR SIMPLICITY OF INSTALLATION, UNINTERRUPTED
WORK FLOW, AND MINIMIZATION OF DEFECTS ARE, ACCORDING TO POSITIVE
ENGINEERING DETERMINATIONS IN THE FILE BEFORE US, UNQUESTIONABLY SERVED
BY THE SPECIFIED COUPLING AND NOT FURTHERED BY THE SOLVENT-WELD METHOD.
THE FACT THAT ONLY A LIMITED NUMBER OF SOURCES CAN FULFILL THE
SPECIFICATIONS ADVERTISED AND THE EXISTENCE OF A PATENT ON A KEY
COMPONENT OF THE LINE MAY NOT
BE REGARDED AS DECISIVE. INDEED THE GOVERNMENT WOULD NOT BE ACTING
IN VIOLATION OF COMPETITIVE BIDDING STATUTES EVEN IF ONLY ONE FIRM COULD
SUPPLY ITS NEEDS PROVIDED THE SPECIFICATIONS ARE REASONABLE AND
NECESSARY FOR THE PURPOSE INTENDED. B-148200 DATED SEPTEMBER 26, 1962.
FURTHERMORE, AS WAS POINTED OUT IN 34 COMP. GEN. 336, AT PAGE 338:
"* * * THE GOVERNMENT OF THE UNITED STATES CANNOT BE LIMITED IN ITS
PROCUREMENT ONLY TO THOSE ITEMS WHICH ARE NOT PATENTED, OR AS TO WHICH
NO PATENTED PROCESSES OR DEVICES ARE INVOLVED IN THEIR MANUFACTURE.'
IF, AS WE THINK HAS BEEN SATISFACTORILY DEMONSTRATED HERE, THE ACTUAL
NEEDS OF THE GOVERNMENT CAN ONLY BE MET WITHIN THE PRESENT STATE OF THE
ART BY THE RUBBER RING SEAL COUPLING, THEN OUR OFFICE WOULD NOT BE
JUSTIFIED IN HOLDING A SPECIFICATION CALLING FOR THAT DEVICE TO BE
RESTRICTIVE.
FOR THE REASONS OUTLINED ABOVE WE ARE ADVISING THE PUBLIC HEALTH
SERVICE THAT WE WOULD NOT BE OBLIGED TO OBJECT TO THE CONSUMMATION OF
AWARDS TO THE LOWEST RESPONSIBLE AND RESPONSIVE BIDDERS UNDER
SPECIFICATIONS WHICH YOU HAVE PROTESTED.
B-159140, JUN. 30, 1966
TO MR. MALVIN W. MANN:
REFERENCE IS MADE TO YOUR LETTER OF MAY 1, 1966, IN EFFECT REQUESTING
RECONSIDERATION OF OUR SETTLEMENT DATED APRIL 4, 1966, WHICH DISALLOWED
YOUR CLAIMS FOR READJUSTMENT PAY, REIMBURSEMENT FOR TRANSPORTATION OF
YOUR HOUSEHOLD EFFECTS AND REIMBURSEMENT FOR TRAVEL PERFORMED FROM
CHARLESTON AIR FORCE BASE, SOUTH CAROLINA, TO NORTH SIOUX CITY, SOUTH
DAKOTA (FORMERLY STEVENS, SOUTH DAKOTA), INCIDENT TO YOUR DISCHARGE AS
FIRST LIEUTENANT, UNITED STATES AIR FORCE RESERVE, EFFECTIVE DECEMBER
21, 1956.
BY SPECIAL ORDER NO. 252, HEADQUARTERS CHARLESTON AIR FORCE BASE,
SOUTH CAROLINA, DATED DECEMBER 19, 1956, YOU WERE RELIEVED FROM
ASSIGNMENT WITH THE 1608TH OPERATIONS SQUADRON; YOUR RESIGNATION WAS
ACCEPTED BY THE PRESIDENT, AND YOU WERE DISCHARGED UNDER OTHER THAN
HONORABLE CONDITIONS, EFFECTIVE DECEMBER 21, 1956. THE ORDERS PROVIDED
THAT THE TRANSPORTATION OFFICER WOULD FURNISH TRANSPORTATION IN KIND TO
YOUR HOME OF RECORD, STEVENS, SOUTH DAKOTA. THE AUTHORITY FOR YOUR
SEPARATION FROM THE SERVICE WAS STATED TO BE SEPARATION DESIGNATION
NUMBER (SDN) 625, RESIGNATION; PARAGRAPH 7A (1), AIR FORCE REGULATIONS
36-12, AND HEADQUARTERS, UNITED STATES AIR FORCE MESSAGE AFPMP-4BC,
169511, DATED DECEMBER 17, 1956.
BY LETTER TO THE AIR FORCE ACCOUNTING AND FINANCE OFFICE, DENVER,
COLORADO, DATED MAY 26, 1965, YOU STATED THAT THE AIR FORCE DISCHARGE
REVIEW BOARD HAD RECENTLY ISSUED YOU A DISCHARGE CERTIFICATE "UNDER
HONORABLE CONDITIONS," DATED DECEMBER 21, 1956, IN PLACE OF THE
DISCHARGE UNDER OTHER THAN HONORABLE CONDITIONS. YOU THEREFORE CLAIMED
LEAVE PAY, MUSTERING-OUT PAY, TRAVEL ALLOWANCE ON SEPARATION AND
REIMBURSEMENT OF EXPENSES IN THE SHIPMENT OF HOUSEHOLD EFFECTS. YOU
ALSO CLAIMED ELIGIBILITY TO SEVERANCE PAY. THE RECORD SHOWS THAT
INCIDENT TO THE CHANGE IN THE CHARACTER OF YOUR DISCHARGE, THE
DEPARTMENT OF THE AIR FORCE HAS ALLOWED YOU PAY AND ALLOWANCES FOR YOUR
ACCRUED LEAVE, MUSTERING-OUT PAY, AND TRAVEL ALLOWANCES FOR YOUR WIFE'S
TRAVEL TO YOUR HOME OF RECORD. MILEAGE FOR YOUR OWN TRAVEL WAS DENIED
SINCE THE PAY RECORDS SHOW THAT YOU WERE TO BE FURNISHED A
TRANSPORTATION REQUEST AT TIME OF DISCHARGE FOR USE IN OBTAINING
TRANSPORTATION AT GOVERNMENT EXPENSE TO YOUR HOME OF RECORD.
REIMBURSEMENT FOR SHIPMENT OF HOUSEHOLD EFFECTS WAS DENIED IN THE
ABSENCE OF DOCUMENTS SHOWING THE WEIGHT OF THE GOODS AND THE EXPENSES
INCURRED. ALSO, READJUSTMENT PAY WAS DENIED FOR THE REASON THAT IT IS
AUTHORIZED INCIDENT TO AN INVOLUNTARY SEPARATION FROM THE SERVICE
WHEREAS YOU VOLUNTARILY RESIGNED.
IN YOUR LETTER DATED DECEMBER 14, 1956, YOU STATED THAT YOU MOVED THE
HOUSEHOLD GOODS YOURSELF AND YOU DO NOT HAVE ANY PAID BILLS OR RECORDS.
HOWEVER, YOU CONTRACTED A LOCAL MOVER AND HE PREPARED AN ESTIMATE OF
WHAT THE COSTS MIGHT HAVE BEEN, $569.77 BASED ON AN ESTIMATED WEIGHT OF
5,020 POUNDS, WHICH YOU ENCLOSED. YOU STATED FURTHER THAT YOU TRAVELED
BY AUTOMOBILE TO YOUR HOME OF RECORD FROM CHARLESTON AIR FORCE BASE AND
YOUR WIFE ACCOMPANIED YOU IN ANOTHER CAR AND YOU REQUESTED REIMBURSEMENT
FOR YOUR TRAVEL AND THAT OF YOUR WIFE. ALSO, YOU HAVE DENIED THAT YOU
VOLUNTARILY RESIGNED, STATING THAT YOUR RESIGNATION WAS DUE TO UNDUE
PRESSURE, COERCION AND UNDERHANDED TACTICS.
YOUR CLAIMS WHICH HAD NOT BEEN ADMINISTRATIVELY ALLOWED WERE
TRANSMITTED TO OUR OFFICE FOR SETTLEMENT AND BY SETTLEMENT DATED APRIL
4, 1966, THEY WERE DISALLOWED FOR THE REASONS STATED THEREIN.
OTHER THAN SEVERANCE PAY FOR PHYSICAL DISABILITY, SEVERANCE PAY IS
AUTHORIZED UNDER THE PROVISIONS OF 10 U.S.C. 8786 TO AN OFFICER OF THE
REGULAR AIR FORCE UPON REMOVAL FROM THE ACTIVE LIST BY HONORABLE
DISCHARGE AT HIS REQUEST UNDER THE CIRCUMSTANCES THERE PROVIDED. FOR A
MEMBER OF A RESERVE COMPONENT, READJUSTMENT PAY WAS AUTHORIZED AT THE
TIME OF YOUR DISCHARGE BY SECTION 265 OF THE ARMED FORCES RESERVE ACT OF
1952 AS ADDED BY THE ACT OF JULY 9, 1956, P.L. 676, 70 STAT. 517, WHICH
PROVIDES IN PERTINENT PART IN SUBSECTION (A) THEREOF, THAT SUCH A MEMBER
WHO IS INVOLUNTARILY RELEASED FROM ACTIVE DUTY AFTER ENACTMENT OF THAT
SECTION AND AFTER HAVING COMPLETED
IMMEDIATELY PRIOR TO SUCH RELEASE AT LEAST 5 YEARS OF CONTINUOUS
ACTIVE DUTY, EXCEPT FOR BREAKS IN SERVICE OF NOT MORE THAN 30 DAYS, AS
EITHER AN OFFICER, WARRANT OFFICER OR ENLISTED PERSON, IS ENTITLED TO A
LUMP-SUM READJUSTMENT PAYMENT COMPUTED ON THE BASIS OF ONE-HALF OF ONE
MONTH'S BASIC PAY IN THE GRADE IN WHICH HE WAS SERVING AT THE TIME OF
RELEASE FROM ACTIVE DUTY, FOR EACH YEAR OF
ACTIVE SERVICE COMPUTED AS THERE PROVIDED. ALSO, IT IS PROVIDED THAT
ANY PRIOR PERIOD FOR WHICH SEVERANCE PAY HAD BEEN RECEIVED UNDER ANY
OTHER PROVISION OF LAW SHALL BE EXCLUDED IN THE COMPUTATION AND THAT
THERE SHALL BE DEDUCTED FROM SUCH PAYMENT ANY MUSTERING-OUT PAYMENT
RECEIVED BY THE MEMBER. SUBSECTION (B) (1) PROVIDES THAT A PERSON WHO
IS RELEASED FROM ACTIVE DUTY AT HIS OWN REQUEST IS NOT ENTITLED TO ANY
PAYMENT UNDER THAT SECTION. ALSO, SUBPARAGRAPH (B) (3) PROVIDES THAT
UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF DEFENSE, A PERSON WHO
IS RELEASED FROM ACTIVE DUTY BECAUSE OF MORAL OR PROFESSIONAL
DERELICTION IS NOT ENTITLED TO ANY PAYMENT. BY SECTION 102A OF PUBLIC
LAW 87-651, 76 STAT. 506, THESE PROVISIONS PERTAINING TO READJUSTMENT
PAY WERE ADDED TO TITLE 10 OF THE UNITED STATES CODE AS SECTION 687.
IMPLEMENTING AIR FORCE REGULATIONS IN EFFECT AT THE TIME OF YOUR
DISCHARGE, WERE CONTAINED IN PARAGRAPH 7A, AIR FORCE REGULATIONS 36-12,
DATED JULY 27, 1954, CITED IN YOUR SEPARATION ORDERS, WHICH PROVIDED
THAT AN OFFICER WHOSE CONDUCT HAS BEEN SUCH AS TO BRING HIM WITHIN THE
PURVIEW OF THAT REGULATION MAY TENDER HIS RESIGNATION FOR THE GOOD OF
THE SERVICE. PARAGRAPH 17, AIR FORCE REGULATIONS 36-2, WHICH WAS DATED
NOVEMBER 8, 1957, BUT WHICH STATED THE POLICY OF THE DEPARTMENT RELATIVE
TO THE ELIMINATION OF OFFICER PERSONNEL OF THE AIR FORCE SERVING ON
EXTENDED ACTIVE DUTY, PROVIDES THAT AN OFFICER APPEARING AS A RESPONDENT
BEFORE A BOARD OF INQUIRY WILL HAVE THE RIGHT, AMONG OTHERS, TO TENDER
HIS RESIGNATION AS PROVIDED FOR IN PARAGRAPH 7, AIR FORCE REGULATIONS
36-12. IT PROVIDES FURTHER AS A NOTATION TO THAT PARAGRAPH, THAT A
RESERVE OFFICER WHO TENDERS A RESIGNATION OR REQUESTS RELEASE FROM
ACTIVE DUTY DOES SO VOLUNTARILY AND THEREFORE DISQUALIFIES HIMSELF, IF
OTHERWISE ELIGIBLE, FOR ENTITLEMENT TO READJUSTMENT PAY UNDER THE ACT OF
JULY 9, 1956.
THE RECORD BEFORE US DOES NOT DISCLOSE THE CIRCUMSTANCES WHICH
PROMPTED YOUR RESIGNATION FROM THE SERVICE, BUT UNDER THE REGULATION THE
CHOICE OF WHETHER TO RESIGN WAS YOURS AND, HENCE, THERE IS NO BASIS FOR
US TO CONCLUDE THAT IT WAS NOT, IN FACT, VOLUNTARY. UNDER THE ABOVE
REGULATIONS IT IS CONSIDERED THAT A MEMBER WHO TENDERS HIS RESIGNATION
FROM THE SERVICE UNDER THE CIRCUMSTANCES THERE PROVIDED MAKES A
VOLUNTARY CHOICE AND UPON ACCEPTANCE OF THE RESIGNATION HE IS REGARDED
AS HAVING BEEN RELEASED FROM ACTIVE DUTY AT HIS OWN REQUEST. THE
STATUTE SPECIFICALLY PROVIDES THAT READJUSTMENT PAY IS NOT AUTHORIZED IN
THESE CIRCUMSTANCES. THEREFORE, SINCE YOU APPEAR TO HAVE VOLUNTARILY
RESIGNED FROM THE SERVICE IN DECEMBER 1956, THE SUBSEQUENT CHANGE IN THE
CHARACTER OF YOUR DISCHARGE DOES NOT ENTITLED YOU TO READJUSTMENT PAY.
AS TO YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED IN THE
TRANSPORTATION OF YOUR HOUSEHOLD EFFECTS, GOVERNING REGULATIONS PROVIDE
THAT SUCH CLAIMS ARE SETTLED ON AN ACTUAL REIMBURSEMENT BASIS, NOT TO
EXCEED WHAT IT WOULD HAVE COST THE GOVERNMENT HAD SHIPMENT BEEN MADE BY
AN AIR FORCE TRANSPORTATION OFFICER. INASMUCH AS YOU STATED THAT YOU
HAULED YOUR HOUSEHOLD EFFECTS TO YOUR HOME OF RECORD, REIMBURSEMENT
WOULD BE LIMITED TO THE ACTUAL COST INCURRED BY YOU FOR SUCH HAULING;
INCLUDING COST OF RENTAL OF A TRUCK OR TRAILER OR ANY OTHER VEHICLE USED
IN SUCH HAULING, AND THE COST OF GASOLINE, OIL AND OTHER INCIDENTAL
EXPENSES INCURRED DURING THE HAUL. IN THE ABSENCE OF RECEIPTS OR OTHER
EVIDENCE OF THE COSTS YOU INCURRED, THERE IS NO BASIS UPON WHICH
REIMBURSEMENT MAY BE MADE FOR THE MOVEMENT OF YOUR HOUSEHOLD EFFECTS.
WITH RESPECT TO YOUR CLAIM FOR TRAVEL ALLOWANCE DUE ON DISCHARGE,
DECEMBER 21, 1956, PARAGRAPH M5300 OF THE JOINT TRAVEL REGULATIONS IN
EFFECT AT THAT TIME, PROVIDED THAT WHEN TRANSPORTATION IS AUTHORIZED TO
A MEMBER DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS, SUCH
TRANSPORTATION WOULD BE LIMITED TO TRANSPORTATION IN KIND FOR TRAVEL
WITHIN THE UNITED STATES. PARAGRAPH M4150-1 OF THE REGULATIONS PROVIDED
THAT, GENERALLY, ALLOWANCES TO MILITARY PERSONNEL FOR PERMANENT CHANGE
OF STATION TRAVEL, WHICH INCLUDES TRAVEL FROM LAST STATION TO HOME, WILL
BE ON THE BASIS OF MILEAGE AT THE RATE OF 6 CENTS PER MILE, OR
TRANSPORTATION IN KIND OR TRANSPORTATION REQUESTS PLUS
A PER DIEM ALLOWANCE. THE ORDERS DATED DECEMBER 19, 1956, DIRECTIN
YOUR DISCHARGE, PROVIDED THAT THE TRANSPORTATION OFFICE WOULD FURNISH
YOU TRANSPORTATION IN KIND TO YOUR HOME OF RECORD AND THE PAY RECORD FOR
THE PERIOD JULY 1 TO DECEMBER 21, 1956, CONTAINS A NOTATION THAT A
TRANSPORTATION REQUEST WOULD BE FURNISHED YOU FOR TRAVEL FROM CHARLESTON
AIR FORCE BASE TO STEVENS, SOUTH DAKOTA. AS YOU HAVE BEEN PREVIOUSLY
ADVISED, THE AIR FORCE IS UNABLE TO VERIFY WHETHER A TRANSPORTATION
REQUEST WAS ISSUED AND WAS UTILIZED, BECAUSE SUCH RECORDS HAVE BEEN
DESTROYED. IN VIEW OF YOUR EXPLANATION, HOWEVER, THAT YOU DID NOT
TRAVEL AT GOVERNMENT EXPENSE TO YOUR HOME OF RECORD WHEN DISCHARGED, BUT
THAT YOU AND YOUR WIFE EACH DROVE AN AUTOMOBILE TO NORTH SIOUX CITY FROM
YOUR LAST DUTY STATION, THE RECORD WILL BE ACCEPTED AS ESTABLISHING THAT
YOU DID NOT PERFORM SUCH TRAVEL AT GOVERNMENT EXPENSE. THEREFORE, IN
VIEW OF THE CHANGE IN THE CHARACTER OF YOUR DISCHARGE CERTIFICATE, OUR
CLAIMS DIVISION WILL ISSUE A SETTLEMENT IN YOUR FAVOR ALLOWING MILEAGE
IN THE AMOUNT DUE FOR YOUR TRAVEL.
B-159386, JUN. 30, 1966
TO LIEUTENANT R. A. MATTHEWS, DO, USN:
REFERENCE IS MADE TO YOUR LETTER DATED MAY 10, 1966, YOUR REFERENCE
CODE CRD, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF CREDITING
THE PAY ACCOUNT OF ENSIGN ANNA FEDORA, 690105W, WITH BASIC ALLOWANCE FOR
QUARTERS AS AN OFFICER WITH A DEPENDENT HUSBAND EFFECTIVE APRIL 22,
1966. YOUR REQUEST HAS BEEN FORWARDED TO THIS OFFICE BY THE COMPTROLLER
OF THE NAVY AND HAS BEEN ASSIGNED SUBMISSION NUMBER DO-N-910 BY THE
DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.
SECTION 403 OF TITLE 37, U.S. CODE, PROVIDES FOR PAYMENT OF BASIC
ALLOWANCE FOR QUARTERS TO MEMBERS OF THE UNIFORMED SERVICES. FOR THE
PURPOSES OF QUALIFICATION FOR THIS ALLOWANCE, THE TERM "DEPENDENT" IS
DEFINED IN 37 U.S.C. 401 AS INCLUDING---
"/1) HIS SPOUSE;
HOWEVER, 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 IN A UNIFORMED SERVICE, THIS OFFICE HAS CONSISTENTLY TAKEN THE
POSITION THAT THE HUSBAND MUST BE INCAPABLE OF SELF-SUPPORT DUE TO A
PHYSICAL OR MENTAL INCAPACITY, SEE 32 COMP. GEN. 364, AND THE EVIDENCE
SUBMITTED MUST SUPPORT BOTH DEPENDENCY AS WELL AS SUCH INCAPACITY. SEE
B-148561, DATED APRIL 20, 1962.
THE INFORMATION SUBMITTED IN THE PRESENT CASE INDICATES THAT THE
MEMBER'S HUSBAND, WILLIAM HARRISON RIANHARD, USNR, WAS PLACED ON THE
TEMPORARY DISABILITY RETIREMENT LIST EFFECTIVE APRIL 22, 1966, WITH A
DISABILITY RATING OF 100 PERCENT.
WHILE HIS DISABILITY RATING AND THE NATURE OF HIS DISABILITY INDICATE
THE POSSIBILITY THAT HE IS INCAPABLE OF SELF-SUPPORT, NEVERTHELESS THE
MERE FACT THAT MR. RIANHARD WAS FOUND TO BE 100 PERCENT DISABLED FOR
THE PURPOSE OF ACTIVE NAVAL SERVICE AND WAS PLACED ON THE TEMPORARY
DISABILITY RETIREMENT LIST, DOES NOT IN ITSELF ESTABLISH THAT HE IS
ACTUALLY DEPENDENT ON THE MEMBER AND UNABLE TO BE GAINFULLY EMPLOYED.
NO CERTIFICATION BY HIS ATTENDING PHYSICIAN HAS BEEN FURNISHED AS TO THE
PERMANENCY OF HIS INCAPACITY AND HIS EMPLOYMENT LIMITATIONS. HENCE, ON
THE BASIS OF THE PRESENT RECORD WE CANNOT CONCLUDE THAT THE MEMBER'S
HUSBAND IS DEPENDENT UPON HER WITHIN THE MEANING OF THE STATUTE AND
PAYMENT OF BASIC ALLOWANCE FOR QUARTERS IN HER CASE IS NOT AUTHORIZED.
THIS DECISION, HOWEVER, DOES NOT PRECLUDE FURTHER CONSIDERATION OF
ENSIGN FEDORA'S CLAIM UPON THE SUBMISSION OF ADDITIONAL EVIDENCE AS TO
HER HUSBAND'S CONDITION AND HIS EMPLOYMENT POSSIBILITIES.
B-157652, JUN. 29, 1966
TO SELLERS, CONNER AND CUNEO:
REFERENCE IS MADE TO THE CORRESPONDENCE AND CONFERENCES YOU AND
REPRESENTATIVES OF THE EAGLE CRUSHER COMPANY, INC., HAVE HAD WITH OUR
OFFICE ON PROTESTS RELATING TO DEFENSE SUPPLY AGENCY (DSA) INVITATIONS
FOR BIDS DSA-700-66-0598 AND -1298 AND REQUESTS FOR PROPOSALS
DSA-700-66-NEG-1302, -2453 AND -2663.
IN B-150369, AUGUST 22, 1963, 43 COMP. GEN. 193, OUR OFFICE HELD THAT
DSA, IN A SOLICITATION FOR BIDS ON SPARE PARTS, COULD NOT PROPERLY USE
ROCK CRUSHER SPARE PARTS DRAWINGS FURNISHED IN CONFIDENCE TO DSA BY
EAGLE CRUSHER IN AN EARLIER PROCUREMENT FOR ROCK CRUSHERS AND THAT THE
DRAWINGS SO ISSUED WITH AN INVITATION FOR BIDS SHOULD BE RECOVERED.
SUBSEQUENTLY, IN B-153941, AUGUST 27, 1964, OUR OFFICE INDICATED THAT IT
DOUBTED THAT A DSA DRAWING OF A SPARE PART KNOWN AS A MOVABLE JAW
CRUSHER WAS PREPARED INDEPENDENT OF THE EAGLE CRUSHER CONFIDENTIAL SPARE
PART DRAWING FOR THAT ITEM AND HELD THAT IT TOO COULD NOT BE USED IN AN
INVITATION FOR BIDS FOR MOVABLE JAW CRUSHERS AND THAT THE INVITATION FOR
BIDS SHOULD BE WITHDRAWN. AT A LATER DATE, DSA ISSUED A REQUEST FOR
PROPOSALS FOR A QUANTITY OF STATIONARY JAW CRUSHERS DESCRIBED BRIEFLY AS
EAGLE CRUSHER PART NUMBER 1120A. THE REQUEST FOR PROPOSALS MADE NO
REFERENCE TO ANY DRAWINGS. EABLE CRUSHER AND ANOTHER COMPANY FURNISHED
PROPOSALS FOR THE JAW CRUSHERS. DSA INQUIRED OF THE OTHER COMPANY HOW
IT INTENDED TO BE ABLE TO SUPPLY THE JAW CRUSHERS IF GRANTED A CONTRACT.
THE COMPANY RESPONDED BY FURNISHING A DRAWING OF STATIONARY AND MOVABLE
JAW CRUSHERS WHICH DRAWING ON ITS FACE PURPORTS TO HAVE BEEN PREPARED
FROM DATA OBTAINED FROM WORN SAMPLES OF EAGLE CRUSHER JAW CRUSHERS. THE
COMPANY ADVISED FURTHER THAT IF IT WERE TO RECEIVE A CONTRACT FOR THE
JAW CRUSHERS IT WOULD PROVIDE THE DRAWING AND THE RIGHT OF UNLIMITED USE
TO DSA AS A PART OF THE CONTRACT. DSA
CONTRACTED WITH THE COMPANY ON THAT BASIS AND HAS USED THE DRAWING SO
OBTAINED AS PART OF SUBSEQUENT SOLICITATIONS FOR BIDS FOR STATIONARY AND
MOVABLE JAW CRUSHERS. IN SOMEWHAT SIMILAR FASHION, DSA HAS OBTAINED
DRAWINGS FROM THE KENSINGTON STEEL DIVISION OF POOR AND COMPANY OF SPARE
PARTS KNOWN AS SMOOTH ROLLS. DSA HAS NOTED THAT, UNLIKE THE SITUATION
WITH THE EAGLE CRUSHER DRAWINGS OF THE JAW CRUSHERS, DSA HAS NEVER
DISCLOSED THE EAGLE CRUSHER DRAWINGS OF SMOOTH ROLLS. EAGLE CRUSHER
PROTESTS THE USE OF THE AFTER-ACQUIRED DRAWINGS ON THE JAW CRUSHERS AND
THE SMOOTH ROLLS ON THE BASIS THAT SUCH USE IS IN DEROGATION OF THE
PRIOR DECISIONS CITED ABOVE.
IN THE EARLY CONSIDERATION OF THIS MATTER, CONFLICTING VIEWPOINTS
WERE EXPRESSED BY DSA AND EAGLE CRUSHER AS TO WHETHER THE DRAWINGS
FURNISHED BY EABLE CRUSHER CONTAINED PROPRIETARY DATA. WHILE IN THE
EARLY DECISION THE EAGLE CRUSHER DATA IS REFERRED TO AS BEING
"PROPRIETARY," THE WORD WAS USED ONLY AS A TERM OF DESCRIPTION RATHER
THAN AS A TERM OF ART. THIS IS MANIFESTED IN THE DECISION IN THAT IT
RECOGNIZES THE POSSIBLE DEROGATION OF THE LICENSE GRANTED THE GOVERNMENT
UNDER THE RIGHTS IN DATA CLAUSE EMPLOYED IN THE ROCK CRUSHER CONTRACT
WITH EAGLE CRUSHER, BUT TURNS INSTEAD ON THE BASIS THAT SINCE EAGLE
CRUSHER HAD FURNISHED THE DRAWINGS WITH THE UNDERSTANDING THAT THEY
WOULD BE TREATED AS CONFIDENTIAL AND NOT DISCLOSED TO COMPETITION,
PRINCIPLES OF EQUITY AND FAIR DEALING DICTATED THAT THE DRAWINGS BE
REGARDED AS CONFIDENTIAL NONETHELESS. THEREFORE, WHEN IT APPEARED THAT
DSA WAS NOT OBSERVING THE CONFIDENCE REPOSED IN THE GOVERNMENT BY
PUBLISHING EAGLE CRUSHER DRAWINGS AND DRAWINGS WHICH APPEARED TO HAVE
BEEN COPIED BY DSA FROM EAGLE CRUSHER DRAWINGS, OUR OFFICE OBJECTED TO
THIS BREACH OF CONFIDENCE. HOWEVER, THOSE DECISIONS DID NOT FORECLOSE
DSA FROM USING ANY OTHER AVENUES AVAILABLE TO IT FOR OBTAINING SIMILAR
INFORMATION THROUGH PROPER MEANS. THE RESTATEMENT, TORTS SECTION 757,
RECOGNIZES THAT WHILE A PARTY MAY BE PRECLUDED FROM USING INFORMATION
OBTAINED IN CONFIDENCE, HE IS NOT PRECLUDED, BUT RATHER MAY BE COMPELLED
TO GO TO ANOTHER SOURCE FOR THE INFORMATION. THE SITUATION WITH EAGLE
CRUSHER IS SUCH THAT WHAT EAGLE CRUSHER SOUGHT TO PROHIBIT WHEN IT MADE
THE DRAWINGS AVAILABLE TO THE GOVERNMENT WAS THE DISCLOSURE BY THE
GOVERNMENT OF THOSE DRAWINGS TO THE BUSINESS COMMUNITY. THERE WAS NO
AGREEMENT THAT THE GOVERNMENT WOULD NOT DISCLOSE ANY INFORMATION WHICH
IT MIGHT OBTAIN PROPERLY FROM OTHER SOURCES.
OUR OFFICE RULED AGAINST THE USE OF THE DSA DRAWING WHICH WAS
PURPORTEDLY BASED ON REVERSE ENGINEERING BECAUSE FROM THE EVIDENCE, OF
WHICH ONE FACTOR WAS THAT THE DSA DRAWING CONTAINED A MATHEMATICALLY
INACCURATE COMPUTATION WHICH WAS ALSO IN THE EAGLE CRUSHER DRAWING, IT
APPEARED THAT THE DSA DRAWING WAS COPIED FROM THE EAGLE CRUSHER DRAWING
AND IT WAS BELIEVED THAT SUCH USE WOULD BE A VIOLATION OF THE CONFIDENCE
REPOSED IN THE GOVERNMENT. IN THE CURRENT PROTEST, IT IS POINTED OUT
THAT THE DRAWING WHICH DSA OBTAINED ON THE JAW CRUSHERS FROM ANOTHER
SOURCE CONTAINS THE SAME MATHEMATICAL INACCURACY IN THAT IT SHOWS 17
EQUAL SPACES AT 1.948 AS EQUAL TO 33 1/8 INSTEAD OF 33.116. WHILE IN
THE CONTEXT OF THE FACTS IN OUR EARLIER DECISION, WE CONSTRUED THE
MATHEMATICAL INACCURACY AS AN INDICATION THAT DSA HAD COPIED THE EAGLE
CRUSHER DRAWING, THE DRAWING OF THE JAW CRUSHERS WHICH DSA HAS OBTAINED
FROM ANOTHER SOURCE PURPORTS ON THE FACE OF IT TO HAVE BEEN COPIED FROM
WORN SAMPLES OF EAGLE CRUSHER JAW CRUSHERS ON MARCH 14, 1962, WHICH WAS
BEFORE DSA EVER DISCLOSED THE EAGLE CRUSHER DRAWINGS OF THE PARTS
PUBLICLY. MOREOVER, FROM THE INFORMATION FURNISHED BY EAGLE CRUSHER IT
APPEARS THAT THE COMPANY HAS BEEN PRODUCING THE TYPE OF JAW CRUSHERS
INVOLVED SINCE THE 1940-S. THEREFORE, IT IS ENTIRELY POSSIBLE THAT THE
DRAWING OF THE JAW CRUSHERS OBTAINED FROM ANOTHER SOURCE COULD HAVE BEEN
PREPARED FROM WORN SAMPLES AS REPRESENTED. ALTHOUGH THERE WAS AN
OPPORTUNITY FOR ANYONE TO EXAMINE THE EAGLE CRUSHER DRAWINGS AND THE DSA
DRAWINGS PREPARED FROM THEM BEFORE THOSE DRAWINGS WERE RECOVERED BY DSA,
THE NEW SOURCE HAD NO REASON TO MISREPRESENT WHEN THE DRAWINGS WERE
PREPARED AS IT WOULD NOT KNOW THAT THE GOVERNMENT WOULD ATTACH ANY
IMPORTANCE TO THE FACT THAT IT WAS PREPARED PRIOR TO DSA DISCLOSURE.
THUS, IN THE CIRCUMSTANCES, THE REPRESENTATION ON THE DRAWING AS TO THE
TIME OF PREPARATION IS CREDIBLE. IN THAT CIRCUMSTANCE, THE SO-CALLED
"MATHEMATICAL INACCURACY" IS CONSIDERED TO BE A FRACTIONAL
REPRESENTATION OF A DECIMAL NUMBER AND DOES NOT NECESSARILY EVIDENCE
COPYING FROM DRAWINGS DISCLOSED BY DSA. OF COURSE, WITH RESPECT TO THE
DRAWINGS OF THE SMOOTH ROLLS WHICH DSA HAS OBTAINED FROM ANOTHER SOURCE,
DSA HAS REPRESENTED THAT IT HAS NOT AT ANY TIME DISCLOSED EAGLE
CRUSHER'S DRAWINGS OF THAT PART, SO THAT SUCH DRAWINGS CANNOT IN ANY WAY
BE ATTRIBUTED TO THE DRAWINGS WHICH EAGLE CRUSHER FURNISHED THE
GOVERNMENT FOR THAT PART.
ACCORDINGLY, IT IS THE CONCLUSION OF OUR OFFICE THAT THE PROCUREMENT
OF JAW CRUSHERS AND SMOOTH ROLLS ON THE BASIS OF THE DRAWINGS WHICH DSA
HAS OBTAINED FROM SOURCES OTHER THAN EAGLE CRUSHER WOULD NOT BE
IMPROPER. THE PROTEST OF EAGLE CRUSHER AGAINST THE USE OF SUCH DRAWINGS
IS
B-158550, JUN. 29, 1966
TO THE SECRETARY OF DEFENSE:
BY LETTER OF FEBRUARY 15, 1966, A PROTEST WAS FILED IN THIS OFFICE BY
THE FOREGGER COMPANY, INCORPORATED, ROSLYN HEIGHTS, NEW YORK, AGAINST A
SOLE-SOURCE PROCUREMENT OF GAS ANESTHESIA APPARATUS BY THE DEFENSE
SUPPLY AGENCY UNDER REQUEST FOR PROPOSALS NO. DSA-120-66-NEG-1376.
ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO THE FOREGGER COMPANY,
INCORPORATED, IN CARE OF ITS SPECIAL COUNSEL, E. K. CUBIN, ESQUIRE, OF
WASHINGTON, D.C., DENYING ITS PROTEST.
ONE OF THE REASONS ASSERTED IN JUSTIFICATION OF A SOLE SOURCE OF
SUPPLY WAS THAT THE CONTRACTOR, OHIO CHEMICAL AND SURGICAL EQUIPMENT
COMPANY OF MADISON, WISCONSIN, WAS THE ONLY FIRM WHICH COULD MEET IN A
TIMELY FASHION THE GOVERNMENT'S MINIMUM REQUIREMENTS. IT WAS FURTHER
CONTENDED THAT OPENING THE PROCUREMENT TO OTHER FIRMS WOULD ADD
APPROXIMATELY 5 YEARS TO THE DELIVERY DATE BECAUSE THESE FIRMS WOULD
HAVE TO GO THROUGH EXTENSIVE DEVELOPMENT AND TEST PHASES BEFORE THEIR
MACHINES WOULD BE ACCEPTABLE. THE REASON FOR THIS TIME LAG, WE FEEL, IS
A RESULT OF INAPPROPRIATE PROCUREMENT METHODS BY THE DEFENSE MEDICAL
MATERIEL COMMAND (DMMC). FOR EXAMPLE, AFTER A SATISFACTORY MACHINE WAS
DEVELOPED BY OHIO CHEMICAL AND THE ARMY MEDICAL EQUIPMENT RESEARCH AND
DEVELOPMENT LABORATORY (MERDL), A CONTRACT FOR SIX PROTOTYPES WAS MADE
WITH OHIO CHEMICAL IN 1959. THIS CONTRACT HAD NO PROVISION FOR THE
ACQUISITION OF TECHNICAL DATA BY THE GOVERNMENT. WE FEEL THIS OMISSION
WAS IN DIRECT CONTRAVENTION OF THE SPIRIT OF THE ARMED SERVICES
PROCUREMENT REGULATION, PARAGRAPH 9-202, WHICH STATES THAT THE
GOVERNMENT HAS MANY USES FOR TECHNICAL DATA, ONE OF WHICH IS ITS
INCLUSION IN CONTRACT SPECIFICATIONS IN ORDER TO OBTAIN COMPETITION
AMONG BIDDERS AND FURTHER ECONOMY IN GOVERNMENT PROCUREMENT. HAD
TECHNICAL DATA BEEN ACQUIRED FROM OHIO CHEMICAL IN 1959, THE INSTANT
PROCUREMENT, AS WELL AS FUTURE PROCUREMENTS FOR THE SAME MACHINES, MIGHT
WELL HAVE BEEN ECONOMICALLY AND TECHNICALLY MORE ADVANTAGEOUS TO THE
GOVERNMENT AS A RESULT OF INCREASED COMPETITION. OR, IF OHIO CHEMICAL
WAS THEN, AS NOW, UNWILLING TO SUPPLY SUCH DATA, CONSIDERATION COULD
HAVE BEEN GIVEN TO ALTERNATIVE METHODS OF SECURING COMPETITION FOR THE
DESIRED EQUIPMENT.
IN ACCORDANCE WITH THE ABOVE, WE RECOMMEND THAT PROCUREMENT OFFICERS
BE MADE AWARE OF THE ADVANTAGES WHICH INURE TO THE GOVERNMENT WHEN
TECHNICAL DATA IS ACQUIRED IN DEVELOPMENT SITUATIONS SUCH AS THIS ONE,
AND THE "SOLE SOURCE" DISADVANTAGE WHICH MAY DEVELOP OTHERWISE.
B-158550, JUN. 29, 1966
TO THE FOREGGER COMPANY, INCORPORATED:
REFERENCE IS MADE TO THE LETTER DATED FEBRUARY 15, 1966, FROM YOUR
CLIENT, THE FOREGGER COMPANY, INCORPORATED, ROSLYN HEIGHTS, NEW YORK,
PROTESTING AGAINST THE ISSUANCE OF REQUEST FOR PROPOSALS NO.
DSA-120-66-NEG-1376, BY THE DEFENSE PERSONNEL SUPPORT CENTER, DEFENSE
SUPPLY AGENCY, PHILADELPHIA, PENNSYLVANIA, TO THE OHIO CHEMICAL AND
SURGICAL EQUIPMENT COMPANY, MADISON, WISCONSIN.
THE ABOVE REFERENCED-REQUEST FOR PROPOSALS (RFP) WAS ISSUED ON
JANUARY 3, 1966, FOR THE PROCUREMENT OF 782 UNITS (SUBSEQUENTLY REDUCED
TO 723 UNITS) OF ANESTHESIA APPARATUS, GAS, NITROUS OXIDE, ETHER, AND
CYCLOPROPANE, PORTABLE, 4 CYLINDER CAPACITY. ONLY ONE FIRM, OHIO
CHEMICAL AND SURGICAL EQUIPMENT COMPANY, WAS SOLICITED AND, INDEED, THE
SOLICITATION PROVIDED THAT THE APPARATUS TO BE FURNISHED WAS THAT OF
OHIO CHEMICAL HAVING BEEN DEVELOPED IN JOINT EFFORT WITH THE ARMY
MEDICAL EQUIPMENT RESEARCH AND DEVELOPMENT LABORATORY (MERDL), AT FORT
TOTTEN, LONG ISLAND, NEW YORK. ON JANUARY 31, 1966, A REPRESENTATIVE OF
THE FOREGGER COMPANY TELEPHONED THE PURCHASING AGENT AT THE DEFENSE
PERSONNEL SUPPORT CENTER (DPSC) TO INQUIRE WHY HIS FIRM HAD NOT BEEN
SOLICITED FOR THIS PROCUREMENT AND TO REQUEST THAT COPIES OF THE RFP BE
SENT TO HIM IMMEDIATELY. AT THIS TIME FOREGGER WAS ADVISED OF THE
GOVERNMENT'S DETERMINATION THAT ONLY OHIO CHEMICAL COULD FULFILL THE
GOVERNMENT'S MINIMUM REQUIREMENTS AND, ACCORDINGLY, THAT FIRM HAD BEEN
DESIGNATED AS THE SOLE SOURCE OF SUPPLY FOR THIS PROCUREMENT.
NOTWITHSTANDING THIS DETERMINATION, COPIES OF THE RFP AND ALL APPLICABLE
DRAWINGS WERE FURNISHED TO THE FOREGGER COMPANY AND ALSO TO THE MCKESSON
APPLIANCE COMPANY, TOLEDO, OHIO, AND THE HARRIS CALORIFIC COMPANY,
CLEVELAND, OHIO, IN RESPONSE TO SIMILAR INQUIRIES FROM THESE FIRMS. ON
FEBRUARY 28, 1966, THE EXTENDED DATE FOR THE RECEIPT OF PROPOSALS, A
REPRESENTATIVE OF OHIO CHEMICAL DELIVERED THAT COMPANY'S PROPOSAL TO THE
DPSC. NO OTHER PROPOSALS WERE RECEIVED THAT DAY AND NONE HAVE BEEN
RECEIVED SINCE. THE FOREGGER COMPANY PROTESTS THAT IT AS WELL AS OTHER
INTERESTED PARTIES SHOULD BE ALLOWED TO PARTICIPATE IN AN OPEN,
COMPETITIVE BID ON THIS PROCUREMENT AND THAT THE EXTENDED OPENING DATE
WAS FOR THE CONVENIENCE OF OHIO CHEMICAL AND DID NOT ALLOW SUFFICIENT
TIME FOR FOREGGER AND THE OTHER FIRMS TO DEVELOP ACCURATE PROPOSALS. AT
THIS POINT IT SHOULD BE NOTED AN AWARD WAS MADE TO OHIO CHEMICAL AND
SURGICAL EQUIPMENT COMPANY FOR 723 UNITS ON MAY 13, 1966.
GENERALLY, SUPPLIES AND SERVICES FOR THE GOVERNMENT ARE REQUIRED TO
BE PROCURED BY FORMAL ADVERTISING. THERE ARE INSTANCES, HOWEVER, WHEN
FORMAL ADVERTISING IS NOT FEASIBLE, AND THE PROCUREMENT AGENCY IS, IN
SUCH INSTANCES, AUTHORIZED TO NEGOTIATE A PURCHASE OR A CONTRACT. IN
THIS REGARD, 10 U.S.C. 2304 (A) (7) PROVIDES AS FOLLOWS:
"/A) PURCHASES OF AND CONTRACTS FOR PROPERTY OR SERVICES COVERED BY
THIS CHAPTER SHALL BE MADE BY FORMAL ADVERTISING IN ALL CASES IN WHICH
THE USE OF SUCH METHOD IS FEASIBLE AND PRACTICABLE UNDER THE EXISTING
CONDITIONS AND CIRCUMSTANCES. IF USE OF SUCH METHOD IS NOT FEASIBLE AND
PRACTICABLE, THE HEAD OF AN AGENCY, SUBJECT TO THE REQUIREMENTS FOR
DETERMINATIONS AND FINDINGS IN SECTION 2310, MAY NEGOTIATE SUCH A
PURCHASE OR CONTRACT, IF---
"/7) THE PURCHASE OR CONTRACT IS FOR MEDICINE OR MEDICAL SUPPLIES; *
* *.'
THIS OFFICE HAS BEEN INFORMED BY DPSC THAT AN EXTENDED DELAY, PERHAPS
AS MUCH AS FIVE YEARS, COULD RESULT IF THIS PROCUREMENT IS OPENED FOR
COMPETITIVE BIDDING BECAUSE OF EXTENSIVE DEVELOPMENT AND TEST PHASES
NECESSARY FOR THIS TYPE OF EQUIPMENT. WE FEEL SUCH A DELAY MAKES FORMAL
ADVERTISING UNFEASIBLE AND IMPRACTICABLE IN THIS CASE. THUS, DPSC WAS
AUTHORIZED BY STATUTE TO PROCURE THE ANESTHESIA APPARATUS BY NEGOTIATION
RATHER THAN BY FORMAL ADVERTISING.
THE STATUTE (10 U.S.C. 2304 (G) ( ALSO REQUIRES THAT PROPOSALS SHOULD
BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES CONSISTENT
WITH THE NATURE AND REQUIREMENTS OF THE SUPPLIES OR SERVICES TO BE
PROCURED. THE DEFENSE MEDICAL MATERIEL BOARD (DMMB) DETERMINED IN
WRITING ON NOVEMBER 1, 1965, THAT "ONLY THE ANESTHESIA APPARATUS AS
DESCRIBED ABOVE AND MANUFACTURED BY OHIO CHEMICAL AND SURGICAL EQUIPMENT
COMPANY MEETS THE MINIMUM REQUIREMENTS OF THE GOVERNMENT.' THE ARMED
SERVICES PROCUREMENT REGULATION, ASPR, PARAGRAPH 3-207.2 (II) REQUIRES,
WHENEVER PRACTICABLE, THAT "SUCH ADVANCE PUBLICITY AS IS CONSIDERED
SUITABLE WITH REGARD TO THE SUPPLIES INVOLVED AND OTHER RELEVANT
CONSIDERATIONS SHALL BE GIVEN FOR A PERIOD OF AT LEAST 15 DAYS BEFORE
MAKING A PURCHASE OF OR CONTRACT FOR SUPPLIES OR SERVICES, UNDER THIS
AUTHORITY OF THIS PARAGRAPH 3-207, FOR MORE THAN $10,000.' AS NOTED
ABOVE, FOREGGER, AS WELL AS MCKESSON APPLIANCE COMPANY AND HARRIS
CALORIFIC COMPANY, WAS FURNISHED COPIES OF THE RFP AND ALL APPLICABLE
DRAWINGS MORE THAN 15 DAYS BEFORE THE CONTRACT WAS AWARDED.
IN VIEW OF THE FACTS AND CIRCUMSTANCES INVOLVED IN THIS CASE, WE FIND
NO ABUSE OF DISCRETION BY THE CONTRACTING OFFICER AND THE PROTEST OF THE
FOREGGER COMPANY IS ACCORDINGLY DENIED.
B-159198, JUN. 29, 1966
TO THE TRADERS DISTRIBUTING COMPANY, INC. :
REFERENCE IS MADE TO YOUR LETTER OF MAY 12, 1966, WHICH PROTESTED
AGAINST THE AWARD TO ANY OFFEROR WHO SUBMITTED A HIGHER PROPOSAL THAN
YOURS IN RESPONSE TO REQUEST FOR PROPOSALS (RFP) 604-501-66 ISSUED BY
THE U.S. NAVAL SUPPLY CENTER, PEARL HARBOR, HAWAII, ON MARCH 7, 1966.
THE SUBJECT RFP REQUESTED OFFERS BY 4 P.M., HAWAIIAN STANDARD TIME
(HST) ON MARCH 28, 1966, FOR 5 ITEMS EACH OF COPPER-NICKEL SOFT RODS IN
VARIOUS DIAMETERS RANGING FROM 2 1/2 INCHES TO 5 INCHES. SECTION 7 OF
THE SCHEDULE TO THE RFP ENTITLED "NOTICE TO OFFERORS" READS AS FOLLOWS:
"7.1 - CAUTION - LATE PROPOSALS
SEE THE SPECIAL PROVISION IN THIS SOLICITATION ENTITLED "LATE
PROPOSALS.'
"7.2 TELEGRAPHIC OFFERS
TELEGRAPHIC OFFERS MAY BE SUBMITTED IN RESPONSE TO THIS REQUEST FOR
PROPOSALS. TELEGRAPHIC OFFERS MUST BE RECEIVED IN THIS OFFICE PRIOR TO
THE TIME SPECIFIED FOR CLOSING OF BUSINESS. SUCH OFFERS MUST SPECIALLY
REFER TO THIS REQUEST FOR PROPOSALS, MUST INCLUDE THE ITEM OR SUB-ITEMS,
QUANTITIES, AND UNIT PRICES FOR WHICH THE OFFER IS SUBMITTED AND THE
TIME AND PLACE OF DELIVERY; AND MUST CONTAIN ALL THE REPRESENTATIONS
AND OTHER INFORMATION REQUIRED BY THE REQUEST FOR PROPOSALS TOGETHER
WITH A STATEMENT THAT THE OFFEROR AGREES TO ALL THE TERMS, CONDITIONS
AND PROVISIONS OF THE PROPOSAL. FAILURE TO FURNISH, IN THE TELEGRAPHIC
OFFER, THE REPRESENTATIONS AND INFORMATION REQUIRED BY THE REQUEST FOR
PROPOSALS MAY NECESSITATE REJECTION OF THE OFFER. SIGNED COPIES OF THE
REQUEST FOR PROPOSALS MUST BE FURNISHED IN CONFIRMATION OF THE
TELEGRAPHIC OFFER.
NOTE
ADDRESS TELEGRAPHIC OFFERS TO THE CONTRACTING OFFICER, PURCHASE
DEPARTMENT, U.S. NAVAL SUPPLY CENTER, PEARL HARBOR, HAWAII.'
IN RESPONSE TO THE RFP, WHICH WE ARE ADVISED HAD AN ISSUE PRIORITY
ONE DUE TO THE URGENT NEED FOR THE ITEMS, THE ONLY RESPONSIVE OFFER
RECEIVED BEFORE THE TIME SET FOR OPENING WAS FROM THE COULTER STEEL AND
FORGE COMPANY. THAT OFFER WAS FOR ALL UNITS OF ALL ITEMS AT A TOTAL
PRICE OF $26,337.20.
YOUR FIRM, THE RECORD SHOWS, SUBMITTED PROPOSAL PRIOR TO THE OPENING
DATE FOR PROPOSALS, BUT IT FAILED TO INCLUDE THE PRICES, GUARANTEED
SHIPPING WEIGHTS AND VOLUME FOR THE 5 ITEMS TO BE FURNISHED. WITHE THE
PROPOSAL WAS A NOTATION INDICATING A TELEGRAPHIC MODIFICATION WAS TO
FOLLOW SUPPLYING THE OMITTED INFORMATION. THE TELEGRAPHIC MODIFICATION
WAS SENT FROM SAN FRANCISCO, CALIFORNIA, AT 3:17 P.M. MARCH 28, 1966,
AND WAS RECEIVED IN THE PEARL HARBOR NAVAL SUPPLY CENTER ON MARCH 29,
1966. THIS WAS AFTER THE OPENING TIME AND DATE SET FOR THE SUBMISSION
OF PROPOSALS, I.E., 4 P.M., HST, MARCH 28, 1966. THE CONTRACTING
OFFICER, BY LETTER OF APRIL 27, 1966, ADVISED
YOUR COMPANY THE SUBJECT TELEGRAM WAS A "LATE PROPOSAL," AND ITS
RECEIPT WAS NOT DUE TO MISHANDLING BY THE GOVERNMENT. ACCORDINGLY, YOUR
PROPOSAL WAS NOT CONSIDERED IN THE PROCUREMENT, BUT WAS RETURNED. ON
APRIL 11, 1966, PRIOR TO THE LETTER REJECTING AND RETURNING YOUR
PROPOSAL, THE PROPOSAL SUBMITTED BY COULTER AND FORGE COMPANY WAS
ACCEPTED.
YOUR LETTERS OF MAY 7, 1966, AND MAY 12, 1966, ENUNCIATE THE BELIEF
THAT THE LATE ARRIVAL OF THE TELEGRAM WAS DUE SOLELY TO POOR HANDLING BY
THE TELEGRAPH COMPANY. THEREFORE, YOU ASSERT IT SHOULD HAVE BEEN
CONSIDERED IN ACCORDANCE WITH PARAGRAPH 3 (II) ENTITLED "LATE PROPOSALS"
(DD FORM 746) FOUND IN THE TERMS AND CONDITIONS OF THE RFP. THAT
PARAGRAPH READS IN PERTINENT PART AS FOLLOWS:
"LATE PROPOSALS - (A) PROPOSALS AND MODIFICATIONS RECEIVED AT THE
OFFICE DESIGNATED IN THE REQUEST FOR PROPOSALS AFTER THE CLOSE OF
BUSINESS ON THE DATE SET FOR RECEIPT THEREOF (OR AFTER THE TIME SET FOR
RECEIPT IF A PARTICULAR TIME IS SPECIFIED) WILL NOT BE CONSIDERED
UNLESS:
(I) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER
(II) THEY ARE SENT BY * * * TELEGRAPH; AND, IT IS DETERMINED BY THE
GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO DELAY * * * BY THE
TELEGRAPH COMPANY, FOR WHICH THE OFFEROR WAS NOT RESPONSIBLE * * *.'
IN SUPPORT OF SUCH CONTENTION YOUR LETTER OF MAY 7, 1966, STATES:
"A. OUR TELEGRAM WAS GIVEN TO WESTERN UNION AT APPROXIMATELY 12:00
NOON, PACIFIC STANDARD TIME, ON MARCH 28. THE TIME SHOWN ON THE COPY OF
THE TELEGRAM THAT YOU FORWARDED TO US, 3:17 .M., IS THE TIME THAT THE
TELEGRAPH COMPANY TRANSMITTED THE MESSAGE AND NOT THE TIME THAT THEY
RECEIVED IT FROM US. THE APPROXIMATELY THREE-HOUR DELAY IN TRANSMITTING
THE MESSAGE IS CERTAINLY ABOVE AND BEYOND OUR CONTROL. AS SET FORTH IN
PAR. 3, SUBPAR. II, IT WOULD APPEAR THAT THE DELAY IN TRANSMISSION AND
SUBSEQUENT LATE ARRIVAL AT YOUR OFFICE WAS DUE SOLELY TO IMPROPER
HANDLING BY THE WESTERN UNION CO. ACCORDINGLY, WE BELIEVE THAT OUR
TELEGRAPHIC PROPOSAL WAS TIMELY.
"B. AT THE TIME WE GAVE THE MESSAGE TO WESTERN UNION, WE ASKED THEM
HOW LONG IT WOULD TAKE TO TRANSMIT THE MESSAGE TO PEARL HARBOR. WE WERE
TOLD THAT IT WOULD REQUIRE A MINIMUM OF TWO HOURS AND A MAXIMUM OF FOUR
HOURS. AT THAT TIME, IT WAS ONLY 10:00 A.M. IN HAWAII AND WE THEREFORE
HAD SIX HOURS FOR THE MESSAGE TO BE RECEIVED IN PEARL HARBOR.
"C. WE HAVE CONTACTED WESTERN UNION AND THEY HAVE PROMISED THAT THEY
WILL MAKE A COMPLETE INVESTIGATION OF THIS MATTER AND PROVIDE US WITH
DOCUMENTARY EVIDENCE TO SUBSTANTIATE THE AFOREMENTIONED STATEMENTS.'
THE REPORT RECEIVED FROM THE CONTRACTING AGENCY IN THIS MATTER
INDICATES THAT NONE OF THE AFORESAID DOCUMENTARY EVIDENCE TO
SUBSTANTIATE THE DELAY HAS BEEN RECEIVED BY THE CONTRACTING AGENCY.
FURTHERMORE, NONE HAS BEEN RECEIVED BY THIS OFFICE.
THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) AT SECTION 2-303.4
SETS OUT THE REGULATIONS APPLICABLE TO CONSIDERATION OF LATE TELEGRAPHIC
BIDS. THEREIN IT IS POINTED OUT "A LATE TELEGRAPHIC BID SHALL BE
PRESUMED TO HAVE BEEN FILED WITH THE TELEGRAPH COMPANY TOO LATE TO BE
RECEIVED IN TIME, EXCEPT WHERE THE BIDDER DEMONSTRATES BY CLEAR AND
CONVINCING EVIDENCE, WHICH INCLUDES SUBSTANTIATION BY AN AUTHORIZED
OFFICIAL OF THE TELEGRAPH COMPANY, THAT THE BID, AS RECEIVED AT THE
OFFICE DESIGNATED IN THE INVITATION FOR BIDS, WAS FILED WITH THE
TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL
TRANSMISSION PROCEDURE SO AS NOT TO HAVE BEEN LATE.' THE LATE BID
PROVISIONS OF ASPR 2-303 ARE MADE APPLICABLE TO LATE PROPOSALS BY ASPR
3-506.
WHILE THE FACTS YOU HAVE ALLEGED IN YOUR LETTER OF MAY 7 MAY VERY
WELL BE TRUE, NO EVIDENCE AS REQUIRED BY ASPR 2-303.4 SUBSTANTIATING
YOUR STATEMENTS APPEARS IN THE RECORD. ACCORDINGLY, THIS OFFICE MUST
ASSUME THAT THE TELEGRAM IN QUESTION WAS FILED TOO LATE TO BE RECEIVED
BY THE CONTRACTING OFFICE BEFORE 4 P.M. HST, MARCH 28, 1966, AND WE
MUST CONCLUDE THAT IT WAS PROPERLY REJECTED AS A LATE PROPOSAL. IN VIEW
THEREOF, IT WOULD APPEAR THAT THE CONTRACT NEGOTIATED WITH COULTER STEEL
AND FORGE COMPANY PURSUANT TO 10 U.S.C. 2304 (A) (2) CONSTITUTES A VALID
AND BINDING OBLIGATION OF THE GOVERNMENT, AND YOUR PROTEST MUST
THEREFORE BE DENIED.
B-158950, JUN. 28, 1966
TO SFC JOEL R. SCHENKELBERGER:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 29, 1966,
REQUESTING REVIEW OF THE SETTLEMENT OF MARCH 22, 1966, WHICH DISALLOWED
YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE, TYPE II, FOR THE PERIOD
NOVEMBER 15, 1963 TO MAY 10, 1965, WHILE ON DUTY OVERSEAS.
YOU WERE ORDERED TO DUTY OVERSEAS BY PARAGRAPH 10, SPECIAL ORDER NO.
177, DATED AUGUST 20, 1963, WHICH DESIGNATED THE LENGTH OF DUTY AS "LONG
TOUR.' UNDER DEPARTMENT OF DEFENSE DIRECTIVE NO. 1315.7, APRIL 6, 1963,
SUCH DESIGNATION INDICATED YOU WOULD BE ACCOMPANIED BY YOUR DEPENDENTS.
IN PRESENTING YOUR ORIGINAL CLAIM ON AUGUST 30, 1965, YOU STATED YOU DID
NOT ATTEMPT TO TAKE YOUR FAMILY TO YOUR OVERSEAS STATION BECAUSE OF THE
WAITING LIST FOR FAMILY HOUSING IN OKINAWA, AND THAT AFTER ARRIVING
THERE YOU ELECTED TO LEAVE YOUR FAMILY IN THE CONTINENTAL UNITED STATES.
THAT CLAIM WAS REJECTED BY THE FINANCE CENTER, U.S. ARMY, FOR THE
REASON THAT YOU WERE OVERSEAS ON APRIL 1, 1964, AND HAD NOT MADE AN
ELECTION WITHIN 30 DAYS OF THAT DATE TO SERVE THE ,ALL OTHERS" TOUR AS
REQUIRED BY REGULATIONS. ON JANUARY 6, 1966, YOU FILED A SECOND CLAIM
SAYING
THAT YOU WERE IN VIETNAM FROM JANUARY 16 TO JULY 17, 1964, AND WERE
NOT GIVEN AN OPPORTUNITY TO SELECT THE "ALL OTHERS" OR "WITH DEPENDENTS"
TOUR WHILE IN VIETNAM OR AFTER YOUR RETURN TO OKINAWA. IN THE
SETTLEMENT IT WAS POINTED OUT THAT ARMY REGULATIONS 37-104, CHANGE 84,
DATED APRIL 27, 1964 (AND CHANGE 82, DATED APRIL 1, 1964) PROMULGATED
PURSUANT TO 37 U.S.C. 427 PROVIDE THAT TO QUALIFY FOR FAMILY SEPARATION
ALLOWANCE, TYPE II, MEMBERS ON DUTY AT OR EN ROUTE TO THE OVERSEAS
STATION ON APRIL 1, 1964, HAD 30 DAYS FROM APRIL 1, 1964, OR 30 DAYS
AFTER REPORTING AT THE OVERSEAS STATION, WHICHEVER WAS LATER, TO SELECT
THE LENGTH OF HIS OVERSEAS TOUR, EITHER THE ,ALL OTHERS" (SHORT TOUR) OR
THE "WITH DEPENDENTS" (LONG TOUR); THAT MEMBERS WHO SELECTED THE "ALL
OTHERS" TOUR WERE ENTITLED TO THE ALLOWANCE AND THAT YOU HAD NOT DONE
SO. THE SETTLEMENT ALSO STATED THAT THE ALLOWANCE WAS TO COMPENSATE
MEMBERS WITH DEPENDENTS FOR ADDED EXPENSE INCURRED AT THE PLACE WHERE
THE DEPENDENTS RESIDE AS A RESULT OF THE SEPARATION OF THE MEMBERS FROM
HIS DEPENDENTS FOR A SUBSTANTIAL PERIOD OF TIME. IN YOUR PRESENT LETTER
YOU SAY THAT WHILE IT IS TRUE THAT YOU DID NOT MAKE SUCH A SELECTION,
SINCE THE ALLOWANCE WAS TO COMPENSATE FOR THE ADDED EXPENSE DURING
SEPARATION OF THE MEMBER FROM HIS DEPENDENTS AND SINCE YOU IN FACT WERE
NOT ACCOMPANIED BY YOUR DEPENDENTS YOU BELIEVE YOUR CLAIM SHOULD BE
PAID.
THE PERTINENT STATUTE, 37 U.S.C. 427 (B), AS ADDED BY SECTION 11 OF
THE UNIFORMED SERVICES PAY ACT OF 1963, PUB.L. 88-132, APPROVED OCTOBER
2, 1963, PROVIDES FOR PAYMENT OF A FAMILY SEPARATION ALLOWANCE,
DESIGNATED BY THE SERVICES AS TYPE II, TO CERTAIN MEMBERS UNDER
SPECIFIED CIRCUMSTANCES INCLUDING WHEN "THE MOVEMENT OF HIS DEPENDENTS
TO HIS PERMANENT STATION OR A PLACE NEAR THAT STATION IS NOT AUTHORIZED
AT THE EXPENSE OF THE UNITED STATES UNDER SECTION 406 OF THIS TITLE" AND
HIS DEPENDENTS DO NOT RESIDE AT OR NEAR THAT STATION. THE LEGISLATIVE
HISTORY OF SECTION 427 (B) SHOWS THAT THE RATIONALE OF THE ALLOWANCE IS
THAT "ENFORCED SEPARATIONS" OF SERVICEMEN FROM THEIR FAMILIES CAUSE
ADDED HOUSEHOLD AND FAMILY EXPENSE WHERE THE MEMBER IS ABSENT FOR ANY
SUBSTANTIAL PERIOD OF TIME. SEE 43 COMP. GEN. 547, COPY ENCLOSED.
SECTION 406 OF TITLE 37, U.S. CODE, PROVIDES IN EFFECT THAT A MEMBER
OF THE UNIFORMED SERVICE WHO IS ORDERED TO MAKE A PERMANENT CHANGE OF
STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS
DEPENDENTS, REIMBURSEMENT THEREFOR OR A MONETARY ALLOWANCE IN LIEU OF
TRANSPORTATION, SUBJECT TO SUCH CONDITIONS AND LIMITATIONS, FOR SUCH
GRADES AND RATINGS, AND TO AND FROM SUCH PLACES AS MAY BE PRESCRIBED BY
THE SECRETARIES CONCERNED. THE CONDITIONS AND LIMITATIONS ARE SET FORTH
IN CHAPTER 7 OF THE JOINT TRAVEL REGULATIONS.
THE RECORD DOES NOT INDICATE THAT YOUR DEPENDENTS WERE NOT PERMITTED
TO JOIN YOU IN OKINAWA AND THAT TRANSPORTATION WAS DENIED UNDER SECTION
406 OF TITLE 37, U.S. CODE. YOUR ORDERS, BY DESIGNATING "LONG TOUR"
INDICATED YOUR DEPENDENTS WOULD BE AUTHORIZED TO BE AT YOUR STATION AND
THE RECORD SHOWS YOU VOLUNTARILY CHOSE NOT TO HAVE THEM AT OKINAWA, YOUR
PERMANENT STATION OVERSEAS. THEREFORE, THERE WAS NOT AN "ENFORCED
SEPARATION" BY REASON OF YOUR DUTY ASSIGNMENT AT OKINAWA AS CONTEMPLATED
BY THE STATUTE. THE ELECTION OF THE "ALL OTHERS" TOUR WHEN MADE WITHIN
PROPER TIME AFTER APRIL 1, 1964, RESULTED IN AN ENDORSEMENT ON ORDERS
STATING THAT TRANSPORTATION OF DEPENDENTS TO THE OVERSEAS STATION WAS
NOT AUTHORIZED. SUCH BARRING OF DEPENDENTS RESULTED IN AN ENFORCED
SEPARATION AS REQUIRED FOR PAYMENT OF THE TYPE II FAMILY SEPARATION
ALLOWANCE. SINCE YOU DID NOT MAKE SUCH ELECTION YOUR ORDERS WERE NOT SO
ENDORSED AND YOU DID NOT BECOME ELIGIBLE FOR THE ALLOWANCE WHILE ON DUTY
IN OKINAWA NOTWITHSTANDING THAT YOUR DEPENDENTS WERE NOT AT YOUR
OVERSEAS STATION.
THE RECORD DOES NOT SHOW WHY YOU WERE NOT AFFORDED AN OPPORTUNITY TO
ELECT THE "ALL OTHERS" TOUR WITHIN 30 DAYS OF APRIL 1. SINCE THIS MAY
HAVE BEEN AN OVERSIGHT ON THE PART OF ARMY PERSONNEL, IT MAY BE STATED
IT IS WELL ESTABLISHED THAT IN THE ABSENCE OF SPECIFIC PROVISION OF LAW,
THE GOVERNMENT IS NOT LIABLE FOR NEGLIGENCE OR OMISSIONS ON THE PART OF
ITS OFFICERS AND EMPLOYEES. GERMAN BANK V. UNITED STATES, 148 U.S. 573;
19 COMP. GEN. 503, 22 ID. 221.
SINCE OKINAWA WAS A STATION TO WHICH TRAVEL OF DEPENDENTS WAS
AUTHORIZED UPON APPROVAL OF THE OVERSEAS COMMANDER AND YOU DID NOT
SELECT THE "ALL OTHERS" TOUR, THERE WAS NO ENFORCED SEPARATION
FROM YOUR DEPENDENTS AND, FOR THAT REASON, THERE IS NO BASIS FOR
PAYMENT OF THE FAMILY SEPARATION ALLOWANCE INCIDENT TO THAT DUTY
ASSIGNMENT.
WITH RESPECT TO YOUR STATEMENT THAT YOU WERE IN VIETNAM FROM JANUARY
16 TO JULY 17, 1964, THE DEPARTMENT OF THE ARMY HAS RECOMMENDED PAYMENT
OF FAMILY SEPARATION ALLOWANCE TO YOU FOR THAT PERIOD SINCE DEPENDENTS
ARE NOT PERMITTED THERE. WHILE YOUR DEPENDENTS WERE NOT AT YOUR
PERMANENT DUTY STATION, 37 U.S.C. 427 (B) (3) AUTHORIZES PAYMENT OF THE
FAMILY SEPARATION ALLOWANCE WITHOUT OTHER LIMITATION WHEN A MEMBER IS ON
TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION FOR A CONTINUOUS PERIOD
OF MORE THAN 30 DAYS AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR HIS
TEMPORARY DUTY STATION. CONSEQUENTLY, IT IS CONCLUDED THAT YOU ARE
ENTITLED TO FAMILY SEPARATION ALLOWANCE FOR SUCH PERIOD OF DUTY IN
VIETNAM AND OUR CLAIMS DIVISION WILL ISSUE A SETTLEMENT IN YOUR FAVOR
FOR THE AMOUNT DUE ON THAT BASIS.
B-159059, JUN. 28, 1966
TO THE AUTHORIZED CERTIFYING OFFICER, BUREAU OF MINES:
ON APRIL 26, 1966, YOU REQUESTED OUR DECISION WHETHER THERE SHOULD BE
CERTIFIED FOR PAYMENT A VOUCHER IN THE AMOUNT OF $115 IN FAVOR OF THE
RESEARCH AND EDUCATION ASSOCIATION, 420 MADISON AVENUE, NEW YORK, NEW
YORK, COVERING SEMINAR FEE FOR HARRY PERRY, DIRECTOR OF COAL RESEARCH,
BUREAU OF MINES.
MR. PERRY SUBMITTED AN INFORMAL APPLICATION TO THE CLAIMANT TO ATTEND
AN ENERGY CONVERSION SEMINAR SCHEDULED FOR FEBRUARY 10 AND 11, 1966. HE
RECEIVED NOTICE OF ACCEPTANCE OF HIS APPLICATION ON FEBRUARY 3, 1966.
THE SEMINAR ANNOUNCEMENT SPECIFICALLY PROVIDED THAT CANCELLATIONS OF
RESERVATIONS FOR THE SEMINAR MIGHT NOT BE MADE AFTER THE CLOSING DATE
FOR RESERVATIONS WHICH DATE WAS SHOWN TO BE FEBRUARY 7 BUT REGISTRANTS
WERE FREE TO SEND SUBSTITUTES.
MR. PERRY DID NOT ATTEND THE SEMINAR. FURTHER, HE DID NOT SEND A
SUBSTITUTE NOR DID HE MAKE A TIMELY REQUEST FOR CANCELLATION OF HIS
RESERVATION. HIS EXPLANATION THEREOF IS CONTAINED IN HIS MEMORANDUM OF
APRIL 21, 1966, IN PART AS FOLLOWS:
"IN THE MEANTIME I BECAME HEAVILY INVOLVED IN THE PREPARATION OF THE
5 YEAR ADVANCE BUDGET AND WAS GIVEN THE RESPONSIBILITY TO MONITOR THE 5
YEAR ENERGY BUDGET.
"I WAS PARTICULARLY ANXIOUS TO ATTEND THE SEMINAR SO I DELAYED
CANCELLATION UNTIL FEBRUARY 7 WHICH IS PROBABLY THE DAY THE UNDATED FORM
6-95 WAS MAILED FROM WASHINGTON. SINCE THE ASSOCIATION
RECEIVED NOTICE OF MY CANCELLATION TOO LATE TO ARRANGE FOR A
REPLACEMENT, THE REGISTRATION FEE IS A LEGITIMATE OBLIGATION CHARGEABLE
TO FUNDS INDICATED ON THE PURCHASE REQUISITION.'
MR. PERRY WAS AUTHORIZED TO APPROVE TRAINING FOR PERIODS OF 40 HOURS
OR LESS. THE ACCEPTANCE OF HIS APPLICATION BY THE CLAIMANT RESULTED IN
A VALID OBLIGATION FOR PAYMENT OF THE FEE, SUBJECT TO CANCELLATION OF
THE RESERVATION ON OR BEFORE FEBRUARY 7, 1966. THERE IS NO INDICATION
WHY THE CANCELLATION COULD NOT HAVE BEEN MADE BY TELEPHONE OR TELEGRAM
ON FEBRUARY 7, 1966, WHICH MR. PERRY STATES ALSO WAS "PROBABLY" THE DAY
THE UNDATED FORM 6-95 (NOTICE OF CANCELLATION) WAS MAILED FROM
WASHINGTON. PERHAPS SUCH MEANS OF CANCELLATION DID NOT OCCUR TO MR.
PERRY BECAUSE OF THE PRESS OF OTHER DUTIES OR ELSE HE BELIEVED THE FORM
6-95 TO WHICH HE REFERS WOULD BE MAILED IN TIME TO EFFECT THE
CANCELLATION BY FEBRUARY 7. BE THAT AS IT MAY, IT DOES NOT APPEAR THAT
THE RESEARCH AND EDUCATION ASSOCIATION WAS IN ANY WAY RESPONSIBLE FOR
THE AGENCY'S FAILURE TO GIVE TIMELY NOTICE OF CANCELLATION. THEREFORE,
THE VOUCHER WHICH IS RETURNED HEREWITH MAY BE CERTIFIED FOR PAYMENT IF
OTHERWISE CORRECT.
B-159075, JUN. 28, 1966
TO STAFF SERGEANT DIOSDADO B. NUNEZA, RA:
REFERENCE IS MADE TO YOUR LETTER DATED APRIL 18, 1966, REQUESTING
RECONSIDERATION OF SETTLEMENT DATED APRIL 4, 1966, WHICH DISALLOWED YOUR
CLAIM FOR REIMBURSEMENT OF COST OF DEPENDENTS' TRAVEL FROM OAKLAND,
CALIFORNIA, TO HONOLULU, HAWAII, JULY 29, 1965, INCIDENT TO ORDERS OF
JULY 19, 1965.
BY PARAGRAPH 19, SPECIAL ORDERS NO. 148, DEPARTMENT OF THE ARMY, U.S.
ARMY ELECTRONIC PROVING GROUND, FORT HUACHUCA, ARIZONA, DATED JULY 19,
1965, YOU WERE ASSIGNED ON PERMANENT CHANGE OF STATION TO HEADQUARTERS
SEVENTH ARMY, APO NEW YORK, NEW YORK, TO REPORT FOR OVERSEAS
TRANSPORTATION ON SEPTEMBER 6, 1965. SPECIAL INSTRUCTIONS IN THE ORDERS
STATED THAT CONCURRENT TRAVEL OF DEPENDENTS WAS DISAPPROVED AND THERE
WAS AN ESTIMATED MINIMUM DELAY IN ASSIGNING GOVERNMENT QUARTERS FOR A
PERIOD OF 16 WEEKS FROM REPORTING DATE AT OVERSEAS REPLACEMENT STATION.
ON SEPTEMBER 8, 1965, YOU PRESENTED A REQUEST FOR ADJUSTMENT OF YOUR
FOREIGN SERVICE TOUR FROM ,WITH DEPENDENTS" 36 MONTHS' TO AN "ALL
OTHERS" 24 MONTHS' TOUR, AS SET OUT IN PARAGRAPH 29A (2),
ARMY REGULATIONS 55-46. AS A REASON FOR SUCH REQUEST, YOU SAID THAT
IN VIEW OF THE 16-WEEK WAITING PERIOD INDICATED IN YOUR ORDERS OF JULY
19, 1965, AND REFUSAL OF YOUR REQUEST FOR CONCURRENT TRAVEL, YOU MOVED
YOUR DEPENDENTS FROM FORT HUACHUCA, ARIZONA, TO HONOLULU, HAWAII, YOUR
HOME OF RECORD, AT YOUR OWN EXPENSE, AND THAT YOU DECIDED THEREAFTER
THAT THEY WOULD STAY IN HAWAII WHILE YOU SERVED A 24 MONTH FOREIGN TOUR.
BY INDORSEMENT DATED NOVEMBER 3, 1965, YOUR REQUEST FOR THE "ALL
OTHERS" TOUR WAS APPROVED BY ORDER OF THE SECRETARY OF THE ARMY.
IN YOUR CLAIM DATED NOVEMBER 15, 1965, YOU REQUESTED REIMBURSEMENT
FOR EXPENSES INCURRED IN THE TRAVEL OF YOUR DEPENDENTS FROM CALIFORNIA
TO HAWAII, STATING THAT YOU HAD BEEN PAID FOR THEIR TRAVEL FROM ARIZONA
TO CALIFORNIA. YOU REFERRED TO YOUR REQUEST DATED SEPTEMBER 8, 1965,
AND INDICATED IT SHOWED THAT A REQUEST FOR DEPENDENTS' TRAVEL WAS NOT
PREVIOUSLY MADE BECAUSE DEPENDENTS' TRAVEL TO A DESIGNATED LOCATION IS
NOT AUTHORIZED AT GOVERNMENT EXPENSE UNDER APPLICABLE REGULATIONS IF THE
WAITING PERIOD FOR GOVERNMENT QUARTERS ON FOREIGN ASSIGNMENT IS LESS
THAN 20 WEEKS. IT APPEARS TO BE YOUR VIEW THAT BECAUSE OF THE APPROVAL
OF YOUR REQUEST FOR CHANGE TO AN "ALL OTHERS" TOUR YOU SHOULD BE
CONSIDERED AS ENTITLED TO PAYMENT FOR YOUR DEPENDENTS' TRAVEL TO HAWAII,
AS TO A DESIGNATED LOCATION, SINCE THERE WOULD BE NO AUTHORITY FOR THEIR
TRAVEL TO YOUR OVERSEAS DUTY STATION INCIDENT TO THE "ALL OTHERS" TOUR.
THE STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS OF MEMBERS
OF THE UNIFORMED SERVICES, 37 U.S.C. 406, EXPRESSLY PROVIDES THAT
TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A MEMBER'S
ORDERED CHANGE OF PERMANENT STATION SHALL BE SUBJECT TO SUCH CONDITIONS
AND LIMITATIONS, FOR SUCH GRADES, RANKS, AND RATINGS, AND TO AND FROM
SUCH PLACES AS THE SECRETARIES CONCERNED MAY PRESCRIBE. REGULATIONS
ISSUED BY THE SECRETARIES TO IMPLEMENT THIS STATUTORY AUTHORITY ARE
CONTAINED IN CHAPTER 7 OF THE JOINT TRAVEL REGULATIONS. PARAGRAPH M7000
OF THE REGULATIONS PROVIDES THAT MEMBERS, GENERALLY, ARE ENTITLED TO
TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT
CHANGE OF STATION FOR TRAVEL PERFORMED FROM THE OLD PERMANENT STATION TO
THE NEW PERMANENT STATION OR BETWEEN POINTS OTHERWISE AUTHORIZED IN SUCH
REGULATIONS. AS AN EXCEPTION TO THAT PROVISION, PARAGRAPH M7000-12
PROVIDES THAT ANY TRAVEL OF DEPENDENTS BETWEEN POINTS OTHERWISE
AUTHORIZED TO A PLACE AT WHICH THEY DO NOT INTEND TO ESTABLISH A
RESIDENCE MAY NOT BE CONSIDERED AN OBLIGATION OF THE GOVERNMENT.
WHEN FOR MILITARY REASONS, WHICH MAY INCLUDE CONSIDERATION OF MATTERS
PERTAINING TO THE GENERAL WELFARE OF DEPENDENTS, SUCH AS THE
AVAILABILITY OF HOUSING, A MEMBER'S FAMILY IS NOT PERMITTED TO ACCOMPANY
HIM TO THE PLACE OF HIS NEW PERMANENT ASSIGNMENT, THE ASSIGNMENT IS
REGARDED AS BEING TO A RESTRICTED AREA AS CONTEMPLATED BY THE USE OF
THAT TERM IN PARAGRAPH M7005, JOINT TRAVEL REGULATIONS. IN SUCH
CIRCUMSTANCES, PARAGRAPH M7005-2 PROVIDES THAT WHEN THE OLD DUTY STATION
IS LOCATED IN THE UNITED STATES, TRANSPORTATION OF DEPENDENTS IS
AUTHORIZED TO ANY PLACE IN THE UNITED STATES THE MEMBER MAY DESIGNATE;
THE POINT OF ACTUAL DEPARTURE OF DEPENDENTS FROM THE UNITED STATES IN
CONJUNCTION WITH TRAVEL TO A PLACE OUTSIDE THE UNITED STATES DESIGNATED
BY THE MEMBER; OR TO THE PANAMA CANAL ZONE, PUERTO RICO, ALASKA,
HAWAII, OR ANY TERRITORY OR POSSESSION OF THE UNITED STATES, IF APPROVED
BY THE SECRETARY OF THE SERVICE CONCERNED OR HIS DESIGNATED
REPRESENTATIVE, AND IN THE ABSENCE OF SUCH APPROVAL, TRANSPORTATION OF
DEPENDENTS WILL BE AUTHORIZED TO THE POINT OF ACTUAL DEPARTURE FROM THE
UNITED STATES. WHILE SUCH AUTHORITY PERMITS A SUBSTITUTION OF
DESIGNATION OF DESTINATION FOR DEPENDENTS IN PLACE OF THE RESTRICTED
DUTY STATION, OVERSEAS TRAVEL TO HAWAII MUST BE APPROVED BY THE
SECRETARY CONCERNED AND QUALIFICATION FOR SUCH BENEFITS IS SUBJECT TO
THE REQUIREMENTS OF PARAGRAPH M7000-12 THAT TRAVEL TO A DESIGNATED PLACE
MUST BE PERFORMED WITH THE SPECIFIC INTENTION OF ESTABLISHING A
RESIDENCE THERE UNTIL REMOVAL OF THE RESTRICTION AT THE MEMBER'S
OVERSEAS DUTY STATION OR RECEIPT OF FURTHER CHANGE OF STATION ORDERS.
INASMUCH AS YOU INDICATED IN YOUR CLAIM THAT IT WAS NOT UNTIL AFTER
YOUR DEPENDENTS TRAVELED ON JULY 29, 1965, TO HONOLULU THAT YOU DECIDED
THAT YOU WOULD REQUEST AN "ALL OTHERS" TOUR AND THAT THEY WOULD REMAIN
IN HAWAII FOR ITS DURATION RATHER THAN PROCEED TO YOUR DUTY STATION
OVERSEAS, IT APPEARS QUESTIONABLE THAT THEIR TRAVEL TO HAWAII PROPERLY
SHOULD BE CONSIDERED AS HAVING BEEN PERFORMED WITH THE INTENTION OF
ESTABLISHING RESIDENCE THERE, THAT INTENTION ARISING ONLY AFTER THE
TRAVEL. IN ANY EVENT, THE APPROVAL OF THE "ALL OTHERS" TOUR DID NOT
LESSEN THE REQUIREMENT OF PARAGRAPH M7005-2 FOR APPROVAL BY THE
SECRETARY CONCERNED OR HIS REPRESENTATIVE OF DEPENDENTS' TRAVEL TO
HAWAII TO SUPPORT PAYMENT OF TRAVEL ALLOWANCES BEYOND THE POINT OF
ACTUAL DEPARTURE FROM THE UNITED STATES. SEE PARAGRAPH 44, ARMY
REGULATIONS 55-46. THE TRAVEL OF YOUR DEPENDENTS TO HAWAII WAS NOT
APPROVED AS REQUIRED BY THE REGULATIONS. THEREFORE, THERE IS NO
AUTHORITY FOR THE REIMBURSEMENT OF THE TRANSPORTATION COSTS INVOLVED IN
YOUR DEPENDENTS' TRAVEL FROM OAKLAND, CALIFORNIA, TO HONOLULU, HAWAII.
B-159240, JUN. 28, 1966
TO MR. FORREST A. DANIELS:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 28, 1966, IN EFFECT
REQUESTING REVIEW OF THE SETTLEMENT OF FEBRUARY 14, 1966, WHICH ALLOWED
$13.50 AS TRAVEL ALLOWANCE FROM FORT LEAVENWORTH, KANSAS, TO DEXTER,
IOWA, INCIDENT TO YOUR DISCHARGE AS PRIVATE, ARMY OF THE UNITED STATES,
ON DECEMBER 29, 1920, ON THE BASIS OF YOUR RECORDS AS CORRECTED ON
NOVEMBER 11, 1965, AND DISALLOWED FURTHER PAY AND ALLOWANCES INCIDENT TO
THE CORRECTION.
THE RECORD SHOWS THAT ON FEBRUARY 24, 1920, YOU ENLISTED IN THE ARMY
OF THE UNITED STATES FOR 3 YEARS AT CAMP DODGE, IOWA; THAT YOUR HOME OF
RECORD WAS DEXTER, IOWA, AND THAT YOU SUBSEQUENTLY WERE TRIED BY GENERAL
COURT MARTIAL FOR VIOLATION OF THE 94TH AND 96TH ARTICLES OF WAR AND
FOUND GUILTY. THE SENTENCE IMPOSED BY GENERAL COURT MARTIAL NO. 21,
HEADQUARTERS 4TH DIVISION, ON JULY 23, 1920, WAS FOR DISHONORABLE
DISCHARGE, FORFEITURE FOR ALL PAY AND ALLOWANCES AND CONFINEMENT AT
HARD LABOR FOR 6 MONTHS. YOU WERE CONFINED TO U.S. DISCIPLINARY
BARRACKS AT FORT LEAVENWORTH, KANSAS, ON JULY 28, 1920, AND WERE
DISHONORABLY DISCHARGED DECEMBER 29, 1920, HAVING LOST 184 DAYS UNDER
ARTICLE OF WAR 107.
ARTICLE OF WAR 107, 41 STAT. 809, PROVIDES THAT EVERY SOLDIER WHO IS
CONFINED FOR MORE THAN ONE DAY UNDER SENTENCE, SHALL BE LIABLE TO SERVE,
AFTER HIS RETURN TO A FULL DUTY STATUS, FOR SUCH PERIOD AS SHALL, WITH
THE TIME HE MAY HAVE SERVED PRIOR TO SUCH CONFINEMENT, AMOUNT TO THE
FULL TERM OF THAT PART OF HIS ENLISTMENT PERIOD WHICH HE IS REQUIRED TO
SERVE WITH HIS ORGANIZATION BEFORE BEING FURLOUGHED TO THE ARMY RESERVE.
YOU WERE NOT RESTORED TO A DUTY STATUS AND CONSEQUENTLY HAVE A TOTAL OF
184 DAYS LOST, THAT IS, DAYS ON WHICH YOU DID NOT SERVE IN A PAY STATUS
BUT FOR WHICH YOU NOW APPARENTLY BELIEVE YOU ARE ENTITLED TO PAY BECAUSE
OF THE CORRECTION OF YOUR MILITARY RECORD.
ON NOVEMBER 11, 1965, THE SECRETARY OF THE ARMY APPROVED THE
RECOMMENDATION OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS,
UNDER THE PROVISIONS OF 10 U.S.C. 1552, AND DIRECTED (1) THAT ALL THE
DEPARTMENT OF THE ARMY RECORDS PERTAINING TO YOUR SERVICE BE CORRECTED
TO SHOW YOU WERE SEPARATED FROM THE ARMY OF THE UNITED STATES WITH A
CERTIFICATE OF HONORABLE DISCHARGE DATED DECEMBER 29, 1920, AND (2) THAT
THE DEPARTMENT OF THE ARMY ISSUE TO YOU A CERTIFICATE OF HONORABLE
DISCHARGE DATED DECEMBER 29, 1920, IN LIEU OF THE DISHONORABLE DISCHARGE
OF THE SAME DATE. SUCH ACTION WAS TAKEN BY THE DEPARTMENT OF THE ARMY.
NO OTHER CORRECTION WAS MADE IN YOUR RECORD.
SECTION 1552, TITLE 10, UNITED STATES CODE, PROVIDES THAT THE
SECRETARY OF A MILITARY DEPARTMENT, UNDER PROCEDURES ESTABLISHED BY HIM
AND APPROVED BY THE SECRETARY OF DEFENSE, AND ACTING THROUGH BOARDS OF
CIVILIANS OF THE EXECUTIVE PART OF THAT MILITARY DEPARTMENT, MAY CORRECT
ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO
CORRECT AN ERROR OR REMOVE AN INJUSTICE. EXCEPT WHEN PROCURED BY FRAUD,
A CORRECTION UNDER THIS SECTION IS FINAL AND CONCLUSIVE ON ALL OFFICERS
OF THE UNITED STATES AND THE MEMBER BECOMES ENTITLED TO ALL THE BENEFITS
DUE ON THE BASIS OF THE FACTS AS SHOWN IN THE CORRECTION.
THUS, UPON CORRECTION OF THE RECORDS TO SHOW THAT YOU WERE HONORABLY
DISCHARGED ON DECEMBER 29, 1920, YOU BECAME ENTITLED TO A CERTIFICATE OF
HONORABLE DISCHARGE AND TO MILEAGE FROM LAST STATION TO HOME OF RECORD.
HOWEVER, SINCE THERE WAS NO CORRECTION IN THE COURT MARTIAL SENTENCE OF
JULY 23, 1920, OR OTHER RECORD TO SHOW THAT YOUR DUTY STATUS WAS
RESTORED FOR THE PERIOD OF YOUR CONFINEMENT FOR PAY PURPOSES, YOU ARE
NOT ENTITLED TO ANY PAY AND ALLOWANCES FOR THE LOST DAYS.
SINCE THE SETTLEMENT OF FEBRUARY 14, 1966, ALLOWED YOU MILEAGE FROM
LAST STATION TO HOME AS FOR AN HONORABLE DISCHARGE, IT WAS CORRECT AND
IS SUSTAINED.
B-159371, JUN. 28, 1966
TO THE DIRECTOR, DEFENSE SUPPLY AGENCY:
REFERENCE IS MADE TO A LETTER DATED JUNE 6, 1966, FILE DSAH-G, FROM
THE ASSISTANT COUNSEL SUBMITTING PAGE AIRCRAFT INDUSTRIES' REQUEST TO
RESCIND CONTRACT NO. 46-6041-181, AWARDED MARCH 1, 1966, TO OUR OFFICE
FOR CONSIDERATION. THE REQUEST IS PREDICATED UPON ALLEGED MISTAKES IN
THE BIDS PAGE SUBMITTED IN RESPONSE TO ITEMS NOS. 93 THROUGH 96 OF
INVITATION FOR BIDS NO. 46-6041.
THE ITEMS WERE DESCRIBED AS FOLLOWS:
"ENGINE, AIRCRAFT. PRATT-WHITNEY AIRCRAFT. MODEL R1830-94, 14
CYLINDER, TWO ROW, RADIAL AIR COOLED, RECIPROCATING ENGINE.
"ACQUISITION COST - $10,000.00"
EACH ENGINE DESCRIBED APPEARED TO BE IN POOR CONDITION BUT THE
CURRENT MARKET APPRAISAL WAS NOT AVAILABLE. PAGE SUBMITTED A HIGH BID
OF $2,711 ON EACH ITEM AND THE SECOND HIGH BIDS ON THE FOUR ITEMS WERE,
RESPECTIVELY, $1,555.55; $1,700; $1,900; AND $2,100. THERE WERE 10
TO 14 OTHER BIDS SUBMITTED ON EACH ITEM WHICH RANGED DOWNWARDS TO A LOW
OF $24.10. THE AVERAGE BID WAS APPROXIMATELY $660.
AFTER THE AWARD PAGE ALLEGED THAT IT HAD INTENDED TO BID $677.75 ON
EACH OF THE FOUR ITEMS, WHICH WOULD HAVE TOTALED $2,711, HOWEVER, THE
TYPIST IN PREPARING THE BID ERRONEOUSLY INSERTED $2,711 FOR EACH ITEM,
MAKING A GRAND TOTAL OF $10,844.
THE GENERAL PRINCIPLES APPLICABLE TO THIS CASE ARE SET OUT IN
SALIGMAN V. UNITED STATES, 56 F.SUPP. 505, 507, WHERE IT WAS HELD THAT
IF THE PURCHASER MADE A UNILATERAL MISTAKE IN BID, AND WAS SUBSEQUENTLY
AWARDED THE CONTRACT, HE WOULD BE BOUND BY IT AND MUST BEAR THE
CONSEQUENCES--- UNLESS THE ERROR WAS SO APPARENT THAT IT MUST BE
PRESUMED THAT THE CONTRACTING OFFICER HAD CONSTRUCTIVE NOTICE OF THE
ERROR. IN THAT CASE THE CONTRACT IS VOIDABLE AT THE PURCHASER'S OPTION.
SEE 5 WILLISTON, CONTRACTS, SEC. 1598; 23 COMP. GEN. 596; KEMP V.
UNITED STATES, 38 F.SUPP. 568; WENDER PRESSES, INC. V. UNITED STATES,
343 F.2D. 961.
IN THE INSTANT CASE THE FILE REVEALS THAT THE CONTRACTING OFFICER
KNEW, AT THE TIME OF THE AWARD, THAT WHEN THE SAME ITEMS HAD BEEN
AWARDED TO ANOTHER HIGH BIDDER ON A PRIOR SALE, THE EARLIER PURCHASER
HAD ALLEGED THAT THE ENGINES WERE NOT WORTH THE $1,533.33 EACH, WHICH HE
HAD PAID FOR THEM, AND HAD CHOSEN TO DEFAULT UNDER HIS CONTRACT RATHER
THAN PERFORM. PAGE'S BID WAS $1,177.67 HIGHER FOR EACH ENGINE, THAN THE
PRIOR PRICE. FURTHERMORE, THE CONTRACTING OFFICER ADMITS THAT HE
RECOGNIZED THE ABOVE-STATED DISPARITY IN BID PRICES BUT HE ATTRIBUTED IT
TO THE CURRENT VIET NAM CRISIS.
WHILE THE GENERAL RULE IS THAT A WIDE RANGE OF BID PRICES IN SURPLUS
SALES IS NOT INDICATIVE OF A MISTAKE BECAUSE OF THE MANY POSSIBLE USES
TO WHICH THE ITEMS MAY BE PUT, IT IS OUR OPINION THAT THE FACTS IN THIS
CASE JUSTIFY AN EXCEPTION TO THE RULE. FOR THE ABOVE-STATED REASONS, IT
MAY BE CONCLUDED THAT THE CONTRACTING OFFICER WAS PLACED ON CONSTRUCTIVE
NOTICE OF THE ERROR, AND THAT THE BID SHOULD HAVE BEEN VERIFIED. WE
ACCORDINGLY CONCUR WITH YOUR RECOMMENDATION THAT THE SUBJECT CONTRACT
SHOULD BE RESCINDED.
B-159372, JUN. 28, 1966
TO THE SECRETARY OF THE INTERIOR:
BY LETTER DATED JUNE 7, 1966, WITH ENCLOSURES, DEPUTY ASSISTANT
SECRETARY GEORGE E. ROBINSON REQUESTED OUR DECISION AS TO WHETHER
CONTRACT NO. 14-06-700-1239 DATED NOVEMBER 8, 1956, BETWEEN THE BUREAU
OF RECLAMATION AND THE COUNTY OF PLATTE, WYOMING, MAY BE AMENDED TO
PROVIDE FOR ADDITIONAL ROAD CONSTRUCTION AND THE PURCHASE OF SNOW
REMOVAL EQUIPMENT FOR THE COUNTY.
THE CONTRACT, AMONG OTHERS, COVERED THE CONSTRUCTION OF A COUNTY ROAD
ABOUT 16 MILES IN LENGTH IN REPLACEMENT OF AN EAST-WEST COUNTY ROAD OF
ABOUT 8 MILES IN LENGTH WHICH FORMERLY CUT THROUGH THE RESERVOIR AREA
APPROXIMATELY 3 MILES NORTH OF GLENDO DAM AND RESERVOIR, OREGON TRAIL
DIVISION, MISSOURI RIVER BASIN PROJECT. IT IS STATED THAT THE PURPOSE
OF THE PROPOSED AMENDMENT (SUPPLEMENTAL CONTRACT NO. 1) WOULD BE TO
REMEDY DEFICIENCIES IN THE RELOCATED ROAD AS CONSTRUCTED BY THE BUREAU
AND TO ACQUIRE FOR THE COUNTY MAINTENANCE AND SNOW REMOVAL EQUIPMENT
WHICH IS REQUIRED BECAUSE OF CERTAIN OBJECTIONABLE CONDITIONS PREVAILING
ON A PORTION OF THE ALINEMENT OF THE RELOCATED ROAD THAT WERE NOT
PRESENT ON THE ROAD IN ITS ORIGINAL LOCATION.
DURING THE NEGOTIATIONS AND PRIOR TO EXECUTION OF THE CONTRACT, THE
COUNTY WAS ADVISED BY THE BUREAU THAT THE NEW RELOCATED ROAD, THOUGH
CONSIDERABLY LONGER, WOULD BE AT LEAST AS GOOD AS THE ONE IT REPLACED IN
THE RESERVOIR AREA. THE NEW RELOCATED ROAD WAS TRANSFERRED TO THE
COUNTY ON SEPTEMBER 15, 1958, FOR USE AND MAINTENANCE IN ACCORDANCE WITH
THE PROVISIONS OF THE RELOCATION CONTRACT. ARTICLES 3 AND 7 OF THE
CONTRACT PROVIDE:
"3. UPON COMPLETION OF THE WORK INVOLVED HEREIN, THE OFFICER OF THE
BUREAU OF RECLAMATION IN CHARGE OF THE GLENDO UNIT OF THE MISSOURI RIVER
BASIN PROJECT SHALL NOTIFY THE COUNTY IN WRITING THAT SUCH RELOCATION
AND RECONSTRUCTION WORK HAS BEEN COMPLETED. UNLESS WRITTEN NOTICE TO
THE CONTRARY IS RECEIVED FROM THE COUNTY WITHIN 30 DAYS THEREAFTER, SUCH
WORK SHALL BE CONCLUSIVELY PRESUMED TO BE ACCEPTED BY THE COUNTY AS
SATISFACTORY. AFTER THE COMPLETION AND FINAL ACCEPTANCE OF THE WORK AS
HEREINABOVE PROVIDED, THE SAID RELOCATED ROADS AND RECONSTRUCTED ROADS,
INCLUDING ROADWAY ACROSS GLENDO DAM AND DIKES, SHALL BE MAINTAINED BY
THE COUNTY AT ITS SOLE COST AND EXPENSE.
"7. UPON THE PERFORMANCE OF THIS CONTRACT BY THE UNITED STATES
ACCORDING TO THE TERMS AND CONDITIONS THEREOF, THE COUNTY HEREBY FOREVER
RELEASES AND DISCHARGES THE UNITED STATES FROM ALL LIABILITY FOR DAMAGE
RESULTING FROM THE RELOCATION, CONSTRUCTION, OR RECONSTRUCTION OF COUNTY
ROADS AS A RESULT OF THE CONSTRUCTION OF GLENDO DAM AND RESERVOIR WHICH
NECESSITATED SAID RELOCATION, CONSTRUCTION, AND RECONSTRUCTION.'
THE PROBLEM AREAS ON THE ALINEMENT OF THE RELOCATED ROAD AND THE
JUSTIFICATIONS FOR EXECUTION OF THE PROPOSED AMENDMENT ARE EXPLAINED IN
THE JUNE 7 LETTER AS FOLLOWS:
"DURING 1964, A 100-FOOT SECTION ALONG THE CENTERLINE OF THE ROAD WAS
INVOLVED IN A LANDSLIDE WHEREBY THE FILL PORTION OF THE ROADBED SLID
TOWARD THE RIVER, LEAVING APPROXIMATELY ONE-HALF OF THE ROADBED LOCATED
IN SIDE HILL CUT ON FIRM GROUND. THE COUNTY RESTORED THE ROADWAY BY
REPLACING THE FILL ON THE DOWNHILL ONE-HALF OF THE ROADBED AT A COST OF
APPROXIMATELY $3,000. A SIMILAR SLIDE OCCURRED IN JUNE 1965 ON AN
ADJACENT SECTION OF ROADWAY. THIS, TOO, HAS BEEN REPAIRED BY PLATTE
COUNTY AT A COST OF APPROXIMATELY $4,000. * * *
"SURVEY CROSS SECTIONS OF THE SLIDE SLOPES ON THE RIVER SIDE OF THE
ROADWAY TAKEN APRIL 2, 1966, ESTABLISH THE FACT THAT THE FILL SECTION
HAS NOT STABILIZED AND FURTHER SERIOUS SUBSIDENCE IS IN EVIDENCE. * * *
"PROBLEM AREA NO. 2 CONCERNS THE STEEP UPHILL GRADE (7.75 PERCENT)
CONTIGUOUS WITH THE SOUTH OR RIGHT ABUTMENT OF THE DAM. THIS GRADE,
APPROXIMATELY 1,800 FEET LONG, IS LOCATED ON A NORTHERLY SLOPE WHICH
CAUSES IT TO RETAIN ICE AND SNOW ON THE ROADWAY SURFACE DURING THE
WINTER MONTHS. * * * COUNTY OFFICIALS STATE THAT FREQUENTLY VEHICLES,
INCLUDING SCHOOL BUSES, MUST PUT CHAINS ON TO NEGOTIATE THIS GRADE.
"PROBLEM AREA NO. 3 CONCERNS THE ALINEMENT OF THE RELOCATED ROAD
APPROXIMATELY 3 MILES SOUTH OF GLENDO. AT THIS POINT, THE ROAD
ALINEMENT TRAVERSES THE CENTERLINE OF A SERIES OF THREE DIKES WHICH WERE
CONSTRUCTED AS A PART OF THE PROJECT TO RETAIN THE WATER IN THE
RESERVOIR WHEN IT IS AT MAXIMUM LEVELS. A SHORT RADIUS CURVE IN THE
ROADWAY ALINEMENT FORMS THE CONNECTION BETWEEN ROAD SECTIONS LOCATED ON
THE CRESTS OF TWO OF THE DIKES AND NUMEROUS VEHICLES HAVE LEFT THE ROAD
AT THIS POINT, EVEN THOUGH GUARD POSTS HAVE BEEN ERECTED. * * *
"AS A RESULT OF THE DIFFICULTIES THE RESIDENTS OF THE COUNTY HAVE
ENCOUNTERED IN THE USE OF THE NEW ROAD, PRIVATE CITIZENS AND THE PLATTE
COUNTY BOARD OF COMMISSIONERS, HAVE, ON NUMEROUS OCCASIONS, COMPLAINED
THAT THE GOVERNMENT DID NOT KEEP ITS PROMISE TO CONSTRUCT A ROAD THAT
WAS AS GOOD AS THE ORIGINAL ONE THAT WAS INUNDATED BY THE RESERVOIR. IN
ADDITION TO BEING LONGER AND MORE COSTLY TO MAINTAIN, IT IS MORE
SUSCEPTIBLE TO ADVERSE WEATHER CONDITIONS, MORE ACCIDENTS HAVE OCCURRED
DUE TO A DEFICIENCY OF ALINEMENT, AND A PORTION OF THE ROADBED IS
LOCATED IN AN UNSTABLE FOUNDATION, THE CONTINUAL RESTORATION OF WHICH IS
BEYOND THE COUNTY'S PHYSICAL PLANT AND FINANCIAL CAPABILITY.
"THE COMMUNITY'S DISSATISFACTION WAS VOICED TO BUREAU OF RECLAMATION
REPRESENTATIVES OF THE PROJECT MANAGER'S OFFICE, CASPER, WYOMING, ON
AUGUST 12, 1965, IN A MEETING ATTENDED BY LOCAL RESIDENTS, SCHOOL
OFFICIALS, AND THE PLATTE COUNTY BOARD OF COMMISSIONERS. AT THIS
MEETING, IT WAS POINTED OUT THAT THE COUNTY WAS AGAIN HAVING TO REPAIR
THE ROADWAY AT THE SLIDE ABOVE THE LEFT ABUTMENT OF THE DAM. THEY FELT
THAT THEY WERE ONLY ABLE TO PERFORM A TEMPORARY REPAIR, AND THE PROBLEM
HERE WOULD RECUR. THEY REQUESTED THAT ADEQUATE MEASURES BE TAKEN AS
SOON AS POSSIBLE TO CORRECT ALL THREE OF THE DEFICIENCIES IN THE
RELOCATED ROAD NOTED ABOVE SO THAT IT WOULD BE AT LEAST AS GOOD AS THE
ROAD PREVIOUSLY USED BEFORE CONSTRUCTION OF GLENDO DAM.
"NOTWITHSTANDING THE PREVIOUS POSITION TAKEN BY REPRESENTATIVES OF
THE BUREAU OF RECLAMATION THAT THE ROAD WAS CONSTRUCTED TO STANDARDS SET
FORTH IN THE 1956 AGREEMENT, IT IS THE DETERMINATION OF THE REGIONAL
DIRECTOR, WHO IS THE CONTRACTING OFFICER UNDER THE RELOCATION CONTRACT,
THAT AS A MATTER OF FACT BOTH PARTIES TO THE CONTRACT ERRED, AND
CONSTRUCTION OF THE ROAD WAS DEFICIENT IN THE FOLLOWING RESPECTS:
"1. THE GOVERNMENT ERRED IN NOT PROPERLY EVALUATING THE GEOLOGIC
CONDITIONS IN TRYING TO LOCATE THE ROADWAY ABOVE THE LEFT ABUTMENT OF
THE DAM ON A TRANSVERSE CUT AND FILL SIDE HILL SECTION.
"2. IN LOCATING THE ROADWAY ON A STEEP GRADE ABOVE THE RIGHT
ABUTMENT ON A NORTHERLY SLOPING HILLSIDE, NEITHER PARTY REALIZED THAT
DURING THE WINTER MONTHS IT CREATED A MAINTENANCE PROBLEM THAT IS BEYOND
THE COUNTY'S CAPABILITY TO CORRECT WITH ITS EXISTING EQUIPMENT.
"3. IN DESIGNING THE ROAD, THE GOVERNMENT PROPOSED, AND THE COUNTY
ACCEPTED, PLANS WITH A 25 DEGREE CURVE BETWEEN DIKES NO. 1 AND 2, THREE
MILES SOUTH OF GLENDO, WYOMING. SURFACING MATERIALS WERE NOT PLACED ON
THE ROAD UNTIL CONSTRUCTION OF THE DAM WAS COMPLETE SINCE THIS PART OF
THE COUNTY ROAD WAS ALSO USED AS A CONSTRUCTION ACCESS ROAD. AFTER THE
GOVERNMENT PAVED THE ROAD WITH BITUMINOUS SURFACING MATERIALS, TRAFFIC
SPEED INCREASED, AND THE SHARP CURVE AT THIS LOCATION BECAME AN OBVIOUS
TRAFFIC HAZARD.'
IT IS REPORTED THAT THE TOTAL COST FOR CORRECTING THE ROAD
DEFICIENCIES IS ESTIMATED AT $149,000, $12,000 OF WHICH REPRESENTS THE
COST OF THE MAINTENANCE AND SNOW REMOVAL EQUIPMENT TO BE FURNISHED TO
THE COUNTY. IN FURTHER JUSTIFICATION FOR THE EXPENDITURE REPRESENTED BY
THE PROPOSED AMENDMENT, IT IS STATED THAT:
"IT WAS THE INTENTION OF BOTH THE COUNTY AND THE GOVERNMENT THAT A
ROAD OF EQUIVALENT STANDARDS, SAFE FOR OPERATION OF VEHICLES, BE
PROVIDED BY THE RELOCATED ROAD CONSTRUCTED BY THE GOVERNMENT. WHILE THE
COUNTY WAS RESPONSIBLE AND DID REVIEW THE PLANS AND SPECIFICATIONS,
THEY, BECAUSE OF THEIR LIMITED KNOWLEDGE AND UNFAMILIARITY WITH THE
INTRICACIES OF PROPER DESIGN FOR THE CONSTRUCTION REQUIRED, RELIED ON
THE GOVERNMENT'S ENGINEERING JUDGMENT IN A FIELD WHICH WAS THE
GOVERNMENT'S FORTE. IT IS THE DETERMINATION OF THE CONTRACTING OFFICER
THAT MUTUAL MISTAKES OF FACT OCCURRED AND EXISTED AS TO THE PERPLEXING
GEOLOGICAL CONDITIONS ENCOUNTERED, THE FAILURE TO FORESEE THE SNOW AND
ICING PROBLEM, AND THE INHERENT DANGER OF THE SHORT RADIUS CURVE. THE
TRUE PHYSICAL FACTS WERE NOT KNOWN, OR THEIR SIGNIFICANCE NOT
APPRECIATED, BY EITHER THE GOVERNMENT OR THE COUNTY AT THE TIME THE
RELOCATION CONTRACT WAS EXECUTED AND THE WORK PERFORMED. IN ORDER TO
CORRECT THE RESULTS OF THESE MUTUAL MISTAKES, IT WILL BE NECESSARY TO
ENTER INTO A SUPPLEMENTAL CONTRACT TO RECONSTRUCT THE TWO SEGMENTS OF
THE ROAD AND PROVIDE SNOW REMOVAL EQUIPMENT AS OUTLINED ABOVE. THE
COUNTY FEELS THAT THEY CAN ASSUME ALL FUTURE MAINTENANCE AND ANNUAL
OPERATING COSTS IF THE DEFICIENCIES IN THE THREE PROBLEM AREAS ARE
CORRECTED. IT IS DETERMINED TO BE IN THE BEST INTEREST OF THE UNITED
STATES TO CORRECT THESE CONSTRUCTION DEFICIENCIES.
"THE SITUATION IN THIS CASE, INVOLVING AS IT DOES UNSATISFACTORY
GEOLOGICAL AND DESIGN CONDITIONS WHICH WERE NOT FORESEEN AT THE TIME THE
CONTRACT BETWEEN THE UNITED STATES AND PLATTE COUNTY WAS CONSUMMATED,
AND WHICH HAVE RESULTED IN FAILURE AND HAZARDS TO PUBLIC SAFETY, IS
SIMILAR TO THAT COVERED IN COMP. GEN. B-151280, MAY 6, 1963.'
THE EVIDENCE AS HERETOFORE SET FORTH REASONABLY ESTABLISHES THAT THE
PARTIES WERE MUTUALLY MISTAKEN AS TO THE UNUSUAL GEOGRAPHIC CONDITIONS
INHERENT IN THE CONSTRUCTION OF THE RELOCATED ROAD AND THAT THE DESIGN
ENGINEERING USED BY THE BUREAU DID NOT TAKE INTO CONSIDERATION THE
PERPLEXING GEOGRAPHIC CONDITIONS THAT WOULD BE ENCOUNTERED DURING
CONSTRUCTION. APART FROM THIS, ALTHOUGH THE ROAD WAS ACCEPTED BY THE
COUNTY, IT APPEARS THAT AFTER USING THE ROAD DEFECTS APPEARED WHICH WERE
NOT APPARENT AT THE TIME OF ACCEPTANCE AND, THEREFORE, THE GOVERNMENT
FAILED TO MEET ITS OBLIGATION TO CONSTRUCT A ROAD OF EQUIVALENT
STANDARDS THAT WOULD BE AS GOOD AS THE ROAD IT REPLACED, AND THAT THE
STANDARDS OF CONSTRUCTION USED DID NOT FAIRLY COMPLY WITH STATE-COUNTY
STANDARDS. SEE B-156391 DATED APRIL 19, 1965.
CONCERNING THE LEGAL EFFECT OF ARTICLE 7, ABOVE, ON THE PROPOSED
AMENDMENT, WE NOTE THAT AFTER ARTICLE 7 CAME INTO FORCE AND EFFECT THE
CONDUCT OF THE PARTIES WAS SUCH AS WOULD EVIDENCE AN INTENTION THAT THEY
NEVER CONSTRUED THE ARTICLE AS PRECLUDING THE EVENTUAL EXECUTION OF THE
AMENDMENT OR THAT CORRECTIVE ACTION BY THE GOVERNMENT WOULD BE
NECESSARY. THAT BEING THE CASE, WE DO NOT BELIEVE THAT ARTICLE 7, PER
SE, LEGALLY PRECLUDES EXECUTION OF THE PROPOSED AGREEMENT. SEE
WINN-SENTER CONSTRUCTION CO., ET AL. V. UNITED STATES, 110 CT. CL. 34;
J. G. WATTS CONSTRUCTION COMPANY V. UNITED STATES, 161 CT. CL. 801, 807.
HOWEVER, THE FURNISHING OF MAINTENANCE AND SNOW REMOVAL EQUIPMENT TO
THE COUNTY AS PART OF THE CONSIDERATION OF THE PROPOSED CONTRACT
AMENDMENT WOULD NOT BE PROPER. THE PARTIES TO THE CONTRACT--- WHICH
COVERED ONLY THE RELOCATION AND ABANDONMENT OF COUNTY ROADS--- CANNOT BY
AMENDMENT OR MODIFICATION TRANSFORM THE EXISTING CONTRACT INTO A NEW OR
DIFFERENT ONE. THE PROPOSED AMENDMENT AS DRAFTED WOULD HAVE THE EFFECT
OF ALTERING AN OBLIGATION TO RELOCATE ROADS AS GOOD AS THE FORMER ROADS
TO ONE WHICH WOULD PROVIDE THE COUNTY WITH PHYSICAL ASSETS NOT
ORIGINALLY CONTEMPLATED OR CONTRACTED FOR. THIS IS CONTRARY TO THE
LEGAL THEORY AND BASIS OF CONTRACT MODIFICATION AND/OR AMENDMENT WHICH
IMPLY CHANGE OR VARIANCE IN SOME PARTICULAR OF AN ALREADY CREATED OR
LEGALLY EXISTING RIGHT; THAT IS, IN THIS SITUATION, A PROPERLY
CONSTRUCTED RELOCATED ROAD. SEE SCHNEIDER V. UNITED STATES, 19 CT.CL.
547, 551; BOARD OF DIRECTORS, ETC. V. BOARD OF EDUCATION, ETC., 97
N.W.2D 166, 167; 19 COMP. GEN. 662, 666.
SUBJECT TO THE FOREGOING, WE WOULD HAVE NO OBJECTION TO THE PROPOSED
AMENDMENT. SEE B-151280, MAY 6, 1963, CITED IN THE DEPUTY ASSISTANT
SECRETARY'S LETTER. AS REQUESTED, THE FILES TRANSMITTED WITH THE LETTER
OF JUNE 7 ARE RETURNED HEREWITH.
B-159410, JUNE 28, 1966
TO THE DISBURSING OFFICER, BUFFALO DISTRICT, CORPS OF ENGINEERS,
DEPARTMENT OF THE ARMY:
WE REFER TO YOUR LETTER OF JUNE 8, 1966, YOUR REFERENCE NCBDC, BY
WHICH YOU REQUEST OUR DECISION WHETHER YOU MAY PAY THE VOUCHER SUBMITTED
BY MR. NICHOLAS SALUK, AN EMPLOYEE OF THE BUFFALO DISTRICT, CORPS OF
ENGINEERS, TO REIMBURSE HIM FOR THE COSTS HE INCURRED FOR NOON MEALS
WHILE ON DUTY AWAY FROM THE DREDGE "LYMAN" TO WHICH HE WAS ASSIGNED.
YOU SAY THAT MR. SALUK, WHO IS EMPLOYED IN THE POSITION OF LAUNCH
OPERATOR, WAS ASSIGNED TO DRIVE A TRUCK TO PICK UP SUPPLIES AND MAIL ON
CERTAIN DAYS BETWEEN FEBRUARY 4 AND MARCH 31, 1966. WHEN ASSIGNED TO
SUCH DUTY HE WAS AWAY FROM THE DREDGE FROM 9:30 A.M. TO 4:30 P.M. AND
WAS NOT ABLE TO OBTAIN NOON MEALS ABOARD THE DREDGE. SINCE MEALS ARE
FURNISHED WITHOUT CHARGE TO EMPLOYEES ASSIGNED TO DUTY ON THE DREDGE
"LYMAN" UNDER THE AUTHORITY OF THE ACT OF MAY 13, 1955, 69 STAT. 48, MR.
SULAK CLAIMS REIMBURSEMENT AT THE RATE OF $1.50 FOR EACH OF 27 DAYS HE
WAS ASSIGNED TO DUTY WHICH PREVENTED HIM FROM OBTAINING HIS NOON MEAL
ABOARD THE DREDGE.
THE ACT OF MAY 13, 1955, PROVIDES:
"* * * THAT NOTWITHSTANDING THE PROVISIONS OF SECTION 3 OF THE ACT OF
MARCH 5, 1928, EMPLOYEES OF THE CORPS OF ENGINEERS, DEPARTMENT OF THE
ARMY, ENGAGED ON FLOATING PLANT OPERATIONS MAY BE FURNISHED SUBSISTENCE
AND/OR QUARTERS ON VESSELS WITHOUT CHARGE WHENEVER MESSING AND/OR
QUARTERING ARE DETERMINED TO BE EQUITABLE TO THE EMPLOYEES AND TO BE
NECESSARY IN THE PUBLIC INTEREST IN CONNECTION WITH SUCH OPERATIONS.
ANY SUCH SUBSISTENCE AND QUARTERS SHALL BE FURNISHED IN ACCORDANCE WITH
STANDARDS PRESCRIBED BY THE SECRETARY OF THE ARMY.'
THAT PROVISION OF LAW SPECIFICALLY AUTHORIZES THE FURNISHING OF MEALS
IN KIND TO EMPLOYEES ENGAGED IN FLOATING PLANT OPERATIONS. HOWEVER, IT
DOES NOT PROVIDE FOR THE PAYMENT OF AN ALLOWANCE OR FOR THE
REIMBURSEMENT OF EXPENSES INCURRED WHEN EMPLOYEES WHO ARE ENTITLED TO
MEALS FREE OF CHARGE ARE FOR ONE REASON OR ANOTHER PREVENTED FROM TAKING
ADVANTAGE OF SUCH BENEFIT. FURTHERMORE, AS INDICATED IN YOUR LETTER OF
JUNE 8, MR. SALUK IS NOT ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE
UNDER SECTION 3 OF THE TRAVEL EXPENSE ACT OF 1949, AS AMENDED, 5 U.S.C.
836, AND PARAGRAPH 6.11 OF THE STANDARDIZED GOVERNMENT TRAVEL
REGULATIONS BY REASON OF THE DUTY HE PERFORMED AWAY FROM HIS ASSIGNED
DUTY STATION BETWEEN 9:30 A.M. AND 4:30 P.M. THUS, THERE DOES NOT
APPEAR TO BE ANY BASIS FOR REIMBURSING MR. SALUK FOR THE COST OF MEALS
PURCHASED AWAY FROM HIS
ASSIGNED DUTY STATION.
B-159002, JUN. 27, 1966
TO MR. JOSEPH SACHTER:
FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED MAY 2 AND 10, 1966,
PROTESTING, IN BEHALF OF A AND M INSTRUMENT, INC., THE CANCELLATION AND
REISSUANCE OF INVITATION FOR BIDS NO. N0016366B0157 BY THE UNITED STATES
NAVAL AVIONICS FACILITY, INDIANAPOLIS, INDIANA.
THE INVITATION WAS ISSUED ON JANUARY 24, 1966, REQUESTING BIDS ON
METERS, MILITARY STANDARD DRAWING MS17322-5, REVISION "C," WITH DELIVERY
REQUIREMENTS AS FOLLOWS:
"DESIRED 10 EACH 90 DAYS AFTER DATE OF CONTRACT AND CONTINUING AT THE
RATE OF 20 EACH EVERY 30 DAYS UNTIL DELIVERIES ARE COMPLETE.
"MAXIMUM ACCEPTABLE 10 EACH 180 DAYS AFTER DATE OF CONTRACT AND
CONTINUING AT THE RATE OF 20 EACH EVERY 30 DAYS UNTIL DELIVERIES ARE
COMPLETE.'
THE BIDS WERE OPENED ON FEBRUARY 14, 1966, THE THREE BIDS RECEIVED
BEING AS FOLLOWS:
CHART
UNIT
PRICE DISCOUNT EXTENSION A AND M INSTRUMENT, INC.
$48.32 1 PERCENT - 30 $4,590.40 THE A. W. HAYDON CO.
4,631.25 GENERAL TIME CORP. 51.00 -
YOUR CLIENT'S BID INDICATED THAT IT INTENDED TO SUPPLY A PRODUCT OF
HAYDON'S MANUFACTURE. WHILE THESE BIDS WERE ALL CONSIDERED RESPONSIVE
UPON REVIEW SHORTLY AFTER OPENING, FURTHER EXAMINATION OF A AND M'S BID
DURING CONSIDERATION OF ITS PROTEST REVEALED THAT IT WAS NONRESPONSIVE
DUE TO THE FACT THAT ON PAGE THREE OF THE INVITATION SCHEDULE IT
PROPOSED A DELIVERY FOR 10 UNITS ONLY OF THE REQUIRED ITEMS 90 DAYS
AFTER DATE OF CONTRACT WITH NO SCHEDULE INDICATED FOR THE DELIVERY OF
THE REMAINING 85 UNITS OF THE PROCUREMENT. ATTACHED TO THE BID OF THE
A. W. HAYDON CO. WAS ITS COVERING LETTER DATED JANUARY 31, 1966, WHICH
STATED, IN PART,"THE NEXT PRICE BREAK OCCURS AT 100 UNITS. DELIVERED
PRICE FOR 100 UNITS IS $34.25 EACH, * * * WITHIN 90 DAYS.' THIS
STATEMENT LED THE CONTRACTING OFFICER TO BELIEVE THAT THE PRICES WERE
UNREASONABLE BECAUSE IF THE QUANTITY WAS INCREASED TO 100, OR JUST 5
UNITS MORE, THE SUPPLIES COULD BE PURCHASED FOR LESS BY SOME $1,119.50,
BASED UPON THE BID OF A AND M, AND $1,206.25 BASED UPON THE BID OF
HAYDON, OR APPROXIMATELY 25 PERCENT LESS PER ITEM. THUS, THERE WAS AN
INDICATION THAT THE PRICING RANGE WAS OUT OF BALANCE, SINCE 100 UNITS
COULD BE PURCHASED FOR CONSIDERABLY LESS THAN THE AMOUNTS BID FOR 95
UNITS. FROM THE INFORMATION REVEALED BY ALL THE BIDS CONSIDERED
TOGETHER THE CONTRACTING OFFICER WAS PUT ON NOTICE OF PROBABLE PRICING
DISCREPANCIES FOR THE ITEM. UPON CONFIRMATION OF THE INFORMATION
CONTAINED IN THE HAYDON LETTER THE CONTRACTING OFFICER DETERMINED TO
REJECT ALL BIDS AND CANCEL THE INVITATION BECAUSE ALL BIDS WERE
UNREASONABLE AND TO REISSUE IT.
ALL BIDDERS WERE SO ADVISED.
THE REQUIREMENT WAS READVERTISED BY INVITATION FOR BIDS NO.
N00-16366B0157, DATED APRIL 5, 1966, WHICH OPENED ON APRIL 27, 1966.
THE INVITATION WAS DISTRIBUTED TO SEVEN PROSPECTIVE BIDDERS.
THE TIME OF DELIVERY STATED IN THIS INVITATION IS AS FOLLOWS:
CHART
CALENDAR DAYS AFTER DATE OF AWARD 90 120 150 180 210 240
QUANTITY 10 20 20 20 20 5
ONE BID WAS RECEIVED, THAT OF THE A. W. HAYDON COMPANY WHOSE LOT
PRICE WAS $3,425, DISCOUNT 1/2 PERCENT--- 10 DAYS. YOUR PROTEST CITES
2-404.1 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION AND STATES THAT
THE CHARACTERIZATION OF A AND M'S BID AS BEING "UNREASONABLE" BEARS NO
RELATIONSHIP TO THE FACTS, THE DIFFERENCE BETWEEN THE HIGHEST AND LOWEST
BID BEING LESS THAN 6 PERCENT. IT IS SHOWN TO BE YOUR VIEW THAT "WHERE
A SOLICITATION RESULTS IN WIDELY VARYING BIDS THOSE BIDS AT EITHER END
OF THE SPECTRUM MAY NOT SATISFY THE CRITERION OF REASONABLENESS. THIS,
HOWEVER, HARDLY SEEMS TO FIT THE SITUATION HERE.' THUS, YOU INDICATE A
VIEW THAT SUBMITTED BIDS MAY ONLY BE CONSIDERED UNREASONABLE IN RELATION
TO EACH OTHER. THE PROTEST FURTHER STATES THAT A AND M WAS LED TO
BELIEVE THAT THE QUANTITY OF ITEMS SOUGHT TO BE PROCURED WAS TO BE
CHANGED IN THE REISSUED INVITATION, THAT IT WAS NOT, AND THAT TO
SANCTION THE PRACTICE OF CANCELLATION AND REISSUANCE IN THESE
CIRCUMSTANCES WOULD VIOLATE THE TENETS AND PROSCRIPTIONS OF THIS OFFICE
IN SEEKING TO MAINTAIN THE CONFIDENCE AND INTEGRITY ATTACHED TO THE
COMPETITIVE BIDDING SYSTEM, CITING, AMONG OTHERS, OUR DECISION AT 36
COMP. GEN. 364. YOU ASK THAT AWARD BE MADE TO THE PROTESTING CONTRACTOR
AS THE "LOW RESPONSIVE BIDDER" IN THESE CIRCUMSTANCES.
THE DEPARTMENT OF THE NAVY REPORTS THAT, CONTRARY TO STATEMENTS MADE
IN YOUR MEMORANDUM OF LAW SUBMITTED WITH YOUR MAY 10 LETTER, THE A AND M
COMPANY WAS NEVER ADVISED THE PROCUREMENT WOULD BE NEGOTIATED OR THAT
THE REQUIREMENT HAD BEEN INCREASED BUT WAS ADVISED THAT THE REASON FOR
CANCELLATION WAS UNREASONABLENESS OF PRICE. THE COMPANY WAS ALSO
ADVISED THAT ITS BID WAS CONSIDERED NONRESPONSIVE BECAUSE OF ITS FAILURE
TO OFFER A DELIVERY SCHEDULE FOR 85 DAYS OF THE UNITS BEING PROCURED.
SECTION 2305 (C) OF TITLE 10, UNITED STATES CODE, PROVIDES THAT ALL
BIDS MAY BE REJECTED IF IT IS DETERMINED THAT REJECTION IS IN THE PUBLIC
INTEREST. IN ADDITION, ASPR 2-404.1 (A) AND (B) (VI) PROVIDE, IN
PERTINENT PART, AS FOLLOWS:
"/A) THE PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE BID SYSTEM
DICTATES THAT AFTER BIDS HAVE BEEN OPENED, AWARD MUST BE MADE TO THAT
RESPONSIBLE BIDDER WHO SUBMITTED THE LOWEST RESPONSIBLE BID, UNLESS
THERE IS A COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE
INVITATION. * * *
"/B) * * * INVITATIONS FOR BIDS MAY BE CANCELED AFTER OPENING BUT
PRIOR TO AWARD WHERE SUCH ACTION IS CONSISTENT WITH (A) ABOVE AND THE
CONTRACTING OFFICER DETERMINES IN WRITING THAT---
"/VI) ALL OTHERWISE ACCEPTABLE BIDS RECEIVED ARE AT UNREASONABLE
PRICES; * * *.'
IN DECISION DATED NOVEMBER 2, 1956, B-128646, PUBLISHED AT 36 COMP.
GEN. 364, WE HELD, IN PERTINENT PART, AS FOLLOWS:
"* * * BIDS * * * UNDER THE ORIGINAL INVITATION WERE REJECTED BECAUSE
THEY WERE CONSIDERED EXCESSIVE, AND BIDS WERE SOLICITED UNDER A NEW
INVITATION TO INSURE THAT THE UNITED STATES WOULD RECEIVE THE BENEFIT OF
THE FULL AND OPEN COMPETITION WHICH WAS CONTEMPLATED BY THE ADVERTISING
STATUTES. SUCH STATUTES WERE ENACTED FOR THE PROTECTION OF THE
INTERESTS OF THE UNITED STATES AND NOT FOR THE BENEFIT OR PROTECTION OF
BIDDERS. PERKINS V. LUKENS STEEL COMPANY, 310 U.S. 113, 126;
AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S.
75, 78. WE HAVE NEVERTHELESS CONSTANTLY SOUGHT TO PROTECT AND MAINTAIN
THE PRINCIPLES OF IMPARTIALITY AND FAIR PLAY UPON WHICH THE COMPETITIVE
BIDDING SYSTEM DEPENDS, AND HAVE NEVER COUNTENANCED THE REJECTION OF
BIDS MERELY FOR THE PURPOSE OF AFFORDING THE BIDDERS AN OPPORTUNITY TO
BETTER THE PRICES OF THEIR COMPETITORS.
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 THINK THAT WHAT WAS SAID IN THAT CASE SUMMARIZES THE INSTANT
SITUATION AS WELL. IN ADDITION, SECTION 8 (B) OF THE PRESENT INVITATION
SPECIFICALLY RESERVED TO THE GOVERNMENT THE RIGHT TO REJECT ANY AND ALL
BIDS IN THE INTEREST OF THE GOVERNMENT.
IN VIEW OF THE ABOVE STATUTORY AUTHORITY, THE IMPLEMENTING
REGULATIONS, CASE AUTHORITY CITED, AND THE EXPRESS RESERVATION IN THE
INVITATION FOR BIDS OF THE RIGHT TO REJECT ANY AND ALL BIDS, THERE
APPEARS TO BE NO SOUND BASIS FOR YOUR CONTENTION THAT THE NAVAL AVIONICS
FACILITY COULD NOT, UNDER THE CIRCUMSTANCES, BEING ON NOTICE OF THE
IMBALANCE IN PRICING, REJECT ALL BIDS RECEIVED UNDER THE INVITATION, BUT
WAS BOUND TO AWARD A CONTRACT TO YOU AS THE LOWEST RESPONSIVE BIDDER.
IN THE INSTANT CASE ALL BIDDERS UNDER THE ORIGINAL INVITATION HAD EQUAL
OPPORTUNITY TO BE APPRISED OF THE BIDS SUBMITTED BY THEIR COMPETITORS
AND ALL BIDDERS UNDER THE READVERTISED INVITATION HAD EQUAL OPPORTUNITY
TO SUBMIT COMPETITIVE PROPOSALS WITHOUT REGARD TO THE ORIGINAL BID
PRICES. IN VIEW OF THE FACT THAT A BID HAS BEEN RECEIVED WHICH IS
SUBSTANTIALLY LOWER THAN THE LOWEST BID PRICE WHICH COULD HAVE BEEN
ACCEPTED UNDER THE ORIGINAL INVITATION, IT WOULD APPEAR THAT THE
DECISION OF THE CONTRACTING OFFICER TO READVERTISE WAS IN THE BEST
INTEREST OF THE GOVERNMENT. SEE 36 COMP. GEN. 364.
IN THE CIRCUMSTANCES, THERE IS NO LEGAL BASIS ON WHICH THIS OFFICE
MAY QUESTION THE ADMINISTRATIVE ACTION PREVIOUSLY TAKEN IN THE MATTER OR
AN AWARD TO THE LOW BIDDER UNDER THE READVERTISED PROCUREMENT AND YOUR
PROTEST IS DENIED.
B-159042, JUN. 27, 1966
TO THE ADMINISTRATOR, VETERANS AFFAIRS, VETERANS ADMINISTRATION:
REFERENCE IS MADE TO THE LETTER DATED APRIL 26, 1966, FROM THE
DIRECTOR, SUPPLY MANAGEMENT SERVICE, VETERANS ADMINISTRATION, YOUR
REFERENCE 074B, CONCERNING THE ALLEGED MISTAKE IN BID BY SOUTHWESTERN
DRUG CORPORATION, DALLAS, TEXAS, IN RESPONSE TO SOLICITATION FOR OFFERS
NO. 7023-MS-1-66, FSC GROUP 65, PART I, SECTION B, ISSUED BY THE
VETERANS ADMINISTRATION.
THE ABOVE REFERENCED SOLICITATION WAS ISSUED ON JULY 29, 1965, AND
CONTEMPLATED MULTIPLE AWARDS FOR VARIOUS DRUG AND PHARMACEUTICAL
PRODUCTS FOR THE CONTRACT PERIOD JANUARY 1, 1966, THROUGH DECEMBER 31,
1968. NEGOTIATIONS WERE CONDUCTED PURSUANT TO THE AUTHORITY IN SECTION
302 (C) (7) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF
1949, 63 STAT. 377, WITH MANUFACTURERS OF THE DRUGS BEING SOLICITED, AS
WELL AS THE PROTESTANT, A DISTRIBUTOR OF THESE DRUGS. SOUTHWESTERN HELD
A SIMILAR CONTRACT FOR THE PERIOD JANUARY 1, 1963 THROUGH DECEMBER 31,
1965, AND SUBMITTED A PRICE LIST FOR THE NEW CONTRACT IDENTICAL TO THE
ONE IT USED UNDER THE PREVIOUS CONTRACT. THE CONTRACTING OFFICER ALSO
HAD PRICE LISTS FROM THE MANUFACTURERS OF THE PRODUCTS WHICH QUOTED
HIGHER PRICES THAN SOUTHWESTERN'S BID. SOUTHWESTERN ALLEGES THAT IT
SUBMITTED ITS OLD PRICE LIST IN THE MISTAKEN BELIEF THAT INASMUCH AS THE
CONTRACT WAS NOT TO BEGIN FOR SEVERAL MONTHS IT WOULD BE ALLOWED TO MAKE
CORRECTIONS AFTER ACCEPTANCE FOR CHANGED PRICES DUE TO INCREASES IN
MANUFACTURERS' PRICES. AWARDS WERE MADE TO SOUTHWESTERN AND THE FIVE
MANUFACTURERS COVERING THE SAME PRODUCTS AND THE SAME TIME PERIOD.
SOUTHWESTERN CLAIMS IT SHOULD BE PERMITTED TO AMEND ITS PRICE LIST
BECAUSE THE CONTRACTING OFFICER HAD NOTICE OF ITS MISTAKE IN THAT HE
SHOULD HAVE REALIZED THAT A DISTRIBUTOR CANNOT SELL A PRODUCT FOR LESS
THAN THE MANUFACTURER CAN SELL IT.
AS NOTED ABOVE, THE ONLY MISTAKE MADE BY SOUTHWESTERN WAS ITS BELIEF
THAT IT WOULD BE ALLOWED TO AMEND ITS PRICE LIST AFTER IT WAS ACCEPTED.
THERE IS NO DOUBT SOUTHWESTERN INTENDED TO SUBMIT THE OLD PRICE LIST.
WITHOUT CATEGORIZING AS TO THE TYPE OF MISTAKE INVOLVED IN THE CASE, WE
FEEL THE CONTRACTING OFFICER HAD CONSTRUCTIVE, IF NOT ACTUAL NOTICE OF
AN ERROR IN SOUTHWESTERN'S BID SINCE HE HAD PRICE LISTS FROM THE
MANUFACTURERS OF THE PRODUCTS WHICH QUOTED HIGHER PRICES THAN DID
SOUTHWESTERN'S BID. A CONTRACTING OFFICER SHOULD REALIZE THAT A
DISTRIBUTOR CANNOT SELL A PRODUCT FOR LESS THAN THE MANUFACTURER CAN
SELL IT, AND WE BELIEVE HE SHOULD HAVE ASKED SOUTHWESTERN TO VERIFY ITS
BID, WHICH WOULD, IN ALL LIKELIHOOD, HAVE DISCLOSED SOUTHWESTERN'S
MISTAKEN BELIEF.
GENERALLY, REFORMATION OF A CONTRACT IS NOT PERMITTED UNLESS THE
CONTRACTOR CAN SHOW BY CLEAR AND CONVINCING EVIDENCE WHAT HE INTENDED TO
BID. HERE, SOUTHWESTERN CANNOT SHOW THIS INASMUCH AS IT DID NOT KNOW,
WHEN IT SUBMITTED THE BID, WHAT THE MANUFACTURERS' PRICES WOULD BE AND,
THUS, HAD NOTHING UPON WHICH TO BASE ITS BID. THEREFORE, AN ADJUSTMENT
IN THE CONTRACT PRICE IS NOT POSSIBLE IN THIS CASE.
HOWEVER, IN VIEW OF THE FACT THE CONTRACTING OFFICER HAD AT LEAST
CONSTRUCTIVE NOTICE OF THE ERROR IN SOUTHWESTERN'S BID AND DID NOT
ATTEMPT TO VERIFY IT, AND, BECAUSE SOUTHWESTERN SEEMS TO HAVE ACTED IN
GOOD FAITH FROM THE OUTSET, WE FEEL IT WOULD BE UNCONSCIONABLE TO
REQUIRE SOUTHWESTERN TO PERFORM UNDER THE PRICES IT BID. SEE B-138570,
MARCH 10, 1959.
B-159110, JUN. 27, 1966
TO THE CORPORATION COUNSEL, THE CITY OF NEW YORK:
WE REFER TO YOUR REQUEST OF APRIL 19, 1966, FOR RECONSIDERATION OF
THE CLAIM OF THE CITY OF NEW YORK FOR WATER SERVICES FURNISHED THE
UNITED STATES ARMY SIGNAL CORPS, LONG ISLAND, NEW YORK, DURING 1943 AND
1946.
THE CITY'S CLAIM WAS DISALLOWED PURSUANT TO THE ACT OF OCTOBER 9,
1940, 54 STAT. 1061 (31 U.S.C. 71A), AS IT HAD NOT BEEN RECEIVED IN OUR
OFFICE WITHIN TEN YEARS AFTER IT FIRST ACCRUED. THE ACT OF 1940
PROVIDES, SO FAR AS IS HERE PERTINENT, AS FOLLOWS:
"* * * THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY
STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE
UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION
305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24),
AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED
UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR
OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE
WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED * * *.'
YOU REQUEST RECONSIDERATION OF THE CITY'S CLAIM ON THE PREMISE THAT
THE CITY OF NEW YORK, AS A POLITICAL SUBDIVISION OF THE STATE OF NEW
YORK, WOULD SEEM TO COME WITHIN THE EXCEPTION RECOGNIZED BY THE ACT.
THE TERM "ANY STATE" IN A GIVEN CONTEXT MAY BE PROPERLY VIEWED AS
INCLUDING POLITICAL SUBDIVISIONS OF A STATE, BUT SUCH IS NOT THE
SITUATION INVOLVING A STATUTORY BAR OF TEN YEAR OLD CLAIMS. CF.
WESTCHESTER FIRE INSURANCE COMPANY V. DAVENPORT, 91 N.Y. 574, 591. THE
EXTENSION OF THE EXCEPTION TO INCLUDE THE NUMEROUS COUNTIES,
MUNICIPALITIES, DISTRICTS, ETC., OF THE SEVERAL STATES APPEARS
UNWARRANTED WITH REFERENCE TO THE PRIMARY PURPOSE OF THE STATUTE.
MOREOVER, THE LEGISLATIVE HISTORY OF THE EXCEPTION SHOWS IT ORIGINATED
AS A SENATE AMENDMENT TO OVERCOME THE OBJECTION OF THE SENATOR FROM
VERMONT THAT THE BILL, H.R. 8150, WHICH BECAME THE 1940 ACT, WOULD BAR
"A CLAIM OF THE STATE OF VERMONT THAT IS OLDER THAN 10 YEARS * * *.' 86
CONGRESSIONAL RECORD 12746, 12802.
WE CONSEQUENTLY ARE OF THE OPINION THAT THE 1940 ACT IS APPLICABLE TO
THE CLAIM OF THE CITY OF NEW YORK, AND THEREFORE SUSTAIN THE PRIOR
ACTION DISALLOWING THE CLAIM.
B-159137, JUN. 27, 1966
TO MRS. OLA E. MAILHOT:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 28, 1966,
CONCERNING THE ACTION TAKEN BY OUR CLAIMS DIVISION IN LETTER OF APRIL
26, 1966, WHICH DENIED YOUR CLAIM FOR FAMILY ALLOWANCE PAYMENTS
BELIEVED TO BE DUE YOU FOR THE PERIOD NOVEMBER 1, 1948, TO MARCH 1,
1950, INCIDENT TO THE SERVICE OF YOUR HUSBAND SERGEANT LEO J. MAILHOT,
UNITED STATES ARMY, RETIRED. THERE HAS ALSO BEEN RECEIVED HERE YOUR
LETTER OF MAY 13, 1966, CONCERNING THE SAME MATTER.
AS POINTED OUT IN OUR CLAIMS DIVISION LETTER OF APRIL 26, 1966, AND
AS SHOWN BY YOUR HUSBAND'S MILITARY PAY RECORDS, FAMILY ALLOWANCE--- NOT
CLASS Q ALLOTMENT--- WAS AUTHORIZED BY LAW AND IN EFFECT DURING THE
PERIOD COVERED BY YOUR CLAIM. IT WAS NOT UNTIL NOVEMBER 1, 1950, THAT
YOUR HUSBAND ESTABLISHED A CLASS Q ALLOTMENT OF $125 PER MONTH ($40 PLUS
BASIC ALLOWANCE FOR QUARTERS OF $85 PER MONTH) AS REQUIRED BY THE
DEPENDENTS ASSISTANCE ACT OF 1950, APPROVED SEPTEMBER 8, 1950, CH. 922,
64 STAT. 794. HENCE, IT APPEARS THAT YOU ARE CLAIMING THE PROCEEDS OF
FAMILY ALLOWANCE CHECKS FOR THE PERIOD INVOLVED (NOVEMBER 1948 THROUGH
FEBRUARY 1950), WHICH YOU SAY YOU NEVER RECEIVED. YOU FURTHER SAY THAT
SINCE DEDUCTIONS WERE MADE FROM YOUR HUSBAND'S PAY YOU CANNOT UNDERSTAND
WHY YOU HAVE NOT RECEIVED THE CHECKS AND YOU ASK THAT WE EXAMINE THE
CANCELLED CHECKS. IT IS UNDERSTOOD THAT SUCH CHECKS ARE NO LONGER
AVAILABLE, DESTRUCTION OF PAID GOVERNMENT CHECKS BEING AUTHORIZED UNDER
PROVISIONS OF LAW, CITED BELOW, RELATING TO THE "DISPOSITION OF
RECORDS.'
THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, CH. 443, 56 STAT.
381, AS AMENDED BY THE ACT OF OCTOBER 26, 1943, CH. 281, 57 STAT. 577,
AND IN EFFECT DURING THE PERIOD INVOLVED, PROVIDED THAT FOR ANY PERIOD
DURING WHICH AN ENLISTED MAN WAS IN THE ACTIVE MILITARY SERVICE OF THE
UNITED STATES, HIS DEPENDENT OR DEPENDENTS SHOULD BE ENTITLED TO RECEIVE
A MONTHLY FAMILY ALLOWANCE CONSISTING OF THE GOVERNMENT'S CONTRIBUTION
AND A REDUCTION IN, OR CHARGE AGAINST, THE PAY OF THE ENLISTED MAN IN
THE AMOUNT OF $22 A MONTH. UNDER THE LAW IT WAS THE DEPENDENT OR
DEPENDENTS OF THE ENLISTED MAN, AND NOT THE ENLISTED MAN HIMSELF, WHO
WERE ENTITLED TO THE FAMILY ALLOWANCE PAYMENTS. THE AMOUNT PAYABLE FOR
A WIFE AND TWO CHILDREN WAS $100 PER MONTH.
AN EXAMINATION OF YOUR HUSBAND'S MILITARY PAY RECORDS SHOWS THAT
FAMILY ALLOWANCE DEDUCTIONS OF $22 A MONTH WERE MADE FROM HIS PAY DURING
THE PERIOD DECEMBER 1948 THROUGH SEPTEMBER 30, 1949. COMMENCING OCTOBER
1, 1949, YOUR HUSBAND CONTINUED TO BE ENTITLED TO FAMILY ALLOWANCE
BENEFITS UNDER THE SAVINGS PROVISIONS IN SECTION 515 (B) OF THE CAREER
COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 831, AND HIS PAY ACCOUNT
SHOWS THAT AFTER MAKING THE NECESSARY ACCOUNTING ADJUSTMENTS TO REFLECT
HIS SAVED PAY, AN APPROPRIATE FAMILY ALLOWANCE DEDUCTION WAS MADE DURING
THE REMAINING PERIOD OF YOUR CLAIM.
THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, HAS REPORTED THAT
THERE IS NO RECORD OF ANY FAMILY ALLOWANCE CHECKS HAVING BEEN RETURNED
AS UNDELIVERABLE (SEE LETTER FROM THAT OFFICE DATED OCTOBER 27, 1965,
ADDRESSED TO MR. MAILHOT). PURSUANT TO OUR RECENT INQUIRY, THE ARMY
FINANCE CENTER HAS INFORMALLY ADVISED US THAT THE FAMILY ALLOWANCE
FOLDER--- WHICH GENERALLY CONTAINS A RECORD OF THE PAYMENTS MADE--- IN
YOUR HUSBAND'S CASE IS NOT AVAILABLE. SINCE FAMILY ALLOWANCE PAYMENTS
IN YOUR CASE WERE DISCONTINUED OVER 15 YEARS AGO, PRESUMABLY THE FAMILY
ALLOWANCE FOLDER AND RECORDS HAVE BEEN DESTROYED PURSUANT TO LAW (SEE
CHAPTER 10, TITLE 44 U.S. CODE, RELATING TO ,DISPOSITION OF RECORDS").
IN THIS CONNECTION, IT IS NOTED THAT MR. MAILHOT IN HIS LETTER OF
SEPTEMBER 23, 1964, TO THE DEPARTMENT OF THE ARMY INQUIRING ABOUT THIS
MATTER, INDICATED THAT FOR THE PERIOD PRIOR TO RECEIPT OF CLASS Q
ALLOTMENT CHECKS--- WHICH ALLOTMENT (CLASS Q) WAS NOT ESTABLISHED UNTIL
NOVEMBER 1, 1950--- YOU RECEIVED TWO CHECKS, ONE IN THE AMOUNT OF $600
AND THE OTHER IN THE AMOUNT OF $700. THIS WOULD SEEM TO INDICATE THAT
FAMILY ALLOWANCE PAYMENTS WERE MADE TO YOU IN TWO LUMP-SUM PAYMENTS
WHICH APPEAR TO COVER A SUBSTANTIAL PERIOD OF YOUR CLAIM. SUCH CHECKS
HAVING BEEN ISSUED TO YOU, THERE IS NO REASON TO SUPPOSE THAT SUBSEQUENT
CHECKS WERE NOT ISSUED FOR THE FAMILY ALLOWANCE PAYMENTS CURRENTLY DUE
AT THAT TIME.
EVEN IF THE FAMILY ALLOWANCE RECORDS WERE NOW AVAILABLE AND THE
FAMILY ALLOWANCE PAYMENTS COULD BE VERIFIED BY IDENTIFYING THE CHECK
NUMBERS, ETC., AND IT COULD NOW BE ESTABLISHED THAT ONE OR MORE OF THE
CHECKS WERE NOT CASHED BY YOU, CONSIDERATION OF YOUR CLAIM FOR SUCH
CHECKS WOULD BE BARRED BECAUSE YOUR CLAIM WAS NOT PRESENTED TO THE
GENERAL ACCOUNTING OFFICE OR THE TREASURER OF THE UNITED STATES WITHIN
SIX YEARS AFTER ISSUANCE OF THE CHECK OR CHECKS AS REQUIRED BY SECTION 2
OF THE ACT OF JUNE 22, 1926, CH. 650, 44 STAT. 761, AS AMENDED 31 U.S.C.
122, WHICH PROVIDES IN PART AS FOLLOWS:
"HEREAFTER ALL CLAIMS ON ACCOUNT OF ANY CHECK, CHECKS, WARRANT, OR
WARRANTS APPEARING FROM THE RECORDS OF THE GENERAL ACCOUNTING OFFICE OR
THE TREASURY DEPARTMENT TO HAVE BEEN PAID, SHALL BE BARRED IF NOT
PRESENTED TO THE GENERAL ACCOUNTING OFFICE OR THE TREASURER OF THE
UNITED STATES WITHIN SIX YEARS AFTER THE DATE OF ISSUANCE OF THE CHECK,
CHECKS, WARRANT, OR WARRANTS INVOLVED. * * *"
YOUR ATTENTION IS ALSO INVITED TO THE ACT OF OCTOBER 9, 1940, CH.
788, 54 STAT. 1061, 31 U.S.C. 71A, 237, WHICH PROVIDES THAT EVERY CLAIM
OR DEMAND--- WITH CERTAIN EXCEPTIONS NOT APPLICABLE TO YOUR--- AGAINST
THE UNITED STATES COGNIZABLE BY OUR OFFICE IS "FOREVER BARRED UNLESS
SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE (THE GENERAL
ACCOUNTING OFFICE) WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST
ACCRUED.' YOUR CLAIM WAS NOT RECEIVED IN OUR OFFICE UNTIL 1964.
ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION IN LETTER OF
APRIL 26, 1966, IS SUSTAINED.
B-159250, JUN. 27, 1966
TO TALLEY INDUSTRIES, INC. :
BY LETTER DATED MAY 19, 1966, WITH ENCLOSURES, YOU PROTESTED AGAINST
THE EXCLUSION OF YOUR COMPANY FROM PARTICIPATION IN THE PROCUREMENT
SOLICITED BY BUREAU OF NAVAL WEAPONS, DEPARTMENT OF THE NAVY, UNDER
REQUEST FOR PROPOSALS NO. 0092-66, DATED FEBRUARY 24, 1966.
PURSUANT TO 10 U.S.C. 2304 (A) (14) AND ARMED SERVICES PROCUREMENT
REGULATION 3-214.3, THE ASSISTANT SECRETARY OF THE NAVY (INSTALLATIONS
AND LOGISTICS) ISSUED DETERMINATION AND FINDING NO. 0092-66 JUSTIFYING
THE PROPOSED NEGOTIATION OF A CONTRACT FOR TECHNICAL OR SPECIALIZED
SUPPLIES REQUIRING AN EXTENDED PERIOD OF PREPARATION FOR MANUFACTURE.
IN PERTINENT PART THE ASSISTANT SECRETARY FOUND AND DETERMINED THAT:
"1. THE PROPOSED CONTRACT PROVIDES FOR THE PROCUREMENT OF
APPROXIMATELY SEVEN HUNDRED AND FIFTY SIX (756) MK 2 MOD 1 AND MK 3 MOD
1 GAS GENERATOR SETS, EACH INCLUDING TWO (2) MK 247 MOD 0 IGNITERS;
APPROXIMATELY ONE HUNDRED (100) ADDITIONAL SPARE IGNITERS MK 247 MOD 0;
THIRTY EIGHT (38) COMPLETE GAS GENERATOR SET PRODUCTION SAMPLES AND
PREPRODUCTION TESTING QUALIFICATION ROGRAM; AND AN OPTION FOR
APPROXIMATELY THREE HUNDRED (300) ADDITIONAL COMPLETE GAS GENERATOR SETS
WITH THE OPTION TO BE EXERCISED PRIOR TO 31 AUGUST 1966.
"3. THE NAVY HAS REQUIREMENTS FOR THESE GAS GENERATOR SETS BEGINNING
IN JULY 1966 AND CONTINUING THROUGH OCTOBER 1966. A LARGE PERCENTAGE OF
THE QUANTITY REQUIRED IS URGENTLY NEEDED FOR A REGRAINING PROGRAM FOR
OVERAGED GENERATORS; THE REMAINDER IS NEEDED TO MATE WITH DELIVERY OF
NEW TARTAR G C AND A UNITS. THE OPTION QUANTITY IS FOR MAP
REQUIREMENTS. DELIVERY OF THIS QUANTITY, IF PROCURED, WILL FOLLOW THE
INITIAL QUANTITY. ROCKETDYNE DIVISION OF NORTH AMERICAN AVIATION IS THE
ONLY SOURCE THAT HAS PRODUCED GAS GENERATORS TO THE SPECIFICATIONS FOR
THE PROPOSED PROCUREMENT. IT CAN BEGIN DELIVERY APPROXIMATELY FOUR (4)
MONTHS FROM DATE OF CONTRACT. NO OTHER SOURCE COULD MEET THE INITIAL OR
TERMINAL DELIVERY REQUIREMENTS FOR THE BASIC QUANTITY OR THE OPTION
QUANTITY. ACCORDINGLY, AWARD OF A CONTRACT BY FORMAL ADVERTISING OR TO
A SOURCE OTHER THAN ROCKETDYNE WOULD BE IMPRACTICABLE, BECAUSE IT WOULD
UNDULY DELAY DELIVERY OF GAS GENERATORS NEEDED FOR THE TARTAR MISSILE
PROGRAM.'
UNDER 10 U.S.C. 2310, AS AMENDED BY PUBLIC LAW 87-653, SUCH
DETERMINATION IS FINAL AND NOT SUBJECT TO LEGAL OBJECTION BY OUR OFFICE.
HOWEVER, THERE IS FOR OUR CONSIDERATION WHETHER, AS A MATTER OF LAW,
YOUR COMPANY WAS ENTITLED TO COMPETE ON A NEGOTIATION BASIS FOR THIS
SOLICITATION.
10 U.S.C. 2304 (G) PROVIDES THAT IN ALL NEGOTIATED PROCUREMENTS IN
EXCESS OF $2,500 IN WHICH TIME OF DELIVERY WILL PERMIT, PROPOSALS SHALL
BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES "CONSISTENT
WITH THE NATURE AND REQUIREMENTS OF THE SUPPLIES OR SERVICES TO BE
PROCURED * * *.' UPON REVIEW OF THE REPORT OF THE NAVAL ORDNANCE SYSTEMS
COMMAND ON YOUR PROTEST, WE FEEL THAT THE SOLE SOURCE SOLICITATION OF
THE ROCKETDYNE DIVISION OF NORTH AMERICAN AVIATION, INC., WAS AMPLY
JUSTIFIED ON THE BASIS OF EXTREME URGENCY AS FOUND BY THE ASSISTANT
SECRETARY IN HIS FINDING, SUPRA. RELEVANT TO THE FOREGOING IS OUR
HOLDING IN 44 COMP. GEN. 590, 593:
"WHILE THE APPLICABLE STATUTE (10 U.S.C. 2304 (G) ( REQUIRES THAT
EVEN WHERE AUTHORITY EXISTS TO NEGOTIATE PROCUREMENTS, PROPOSALS SHALL
BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES CONSISTENT
WITH THE NATURE AND REQUIREMENTS OF THE SUPPLIES OR SERVICES TO BE
PROCURED, THE "PUBLIC EXIGENCY" JUSTIFICATION FOR NEGOTIATION IMBUES THE
CONTRACTING OFFICER WITH A CONSIDERABLE RANGE OF DISCRETION IN
DETERMINING THE EXTENT OF NEGOTIATION CONSISTENT WITH THE EXIGENCY OF
THE SITUATION. IN THE ABSENCE OF EVIDENCE INDICATING AN ARBITRARY OR
CAPRICIOUS EXERCISE OF THE DISCRETION PERMITTED, OUR OFFICE IS NOT
REQUIRED TO OBJECT THERETO. SINCE THE DECISION TO LIMIT NEGOTIATIONS *
* * INDICATES A REASONABLE BASIS THEREFOR, IN THE LIGHT OF THE
INFORMATION IN HAND AT THE TIME, WE SEE NO BASIS UPON WHICH WE MAY
PROPERLY OBJECT.'
THE GRAVAMEN OF YOUR COMPLAINT IS THAT THE MOD 2 GAS GENERATORS
OFFERED BY YOUR COMPANY IN ITS UNSOLICITED QUOTATION OF MARCH 25, 1966,
ARE EQUIVALENT TO, OR BETTER THAN, THE MOD 1 VERSION SOLICITED FROM
ROCKETDYNE. FOR THAT REASON, YOU CONTEND THAT THE NAVY MAY NOT PROPERLY
EXCLUDE YOUR COMPANY FROM COMPETING FOR THIS PROCUREMENT. THE BASES OF
THE ADMINISTRATIVE CONCLUSION TO EXCLUDE YOUR COMPANY FROM THE
NEGOTIATION FOR THIS PROCUREMENT ARE SET OUT BELOW IN ORDER TO AFFORD
YOUR COMPANY A CLEAR UNDERSTANDING OF THIS PARTICULAR SOLICITATION.
"THE MK 2 MOD 1 AND MK 3 MOD 1 GAS GENERATORS AND THE IGNITER MK 247
MOD 0 WERE DESIGNED AND DEVELOPED BY ROCKETDYNE IN 1958 AND 1959 UNDER
CONTRACT NORD-18145. DURING DEVELOPMENT AND EARLY PRODUCTION,
ROCKETDYNE ENCOUNTERED MANY TECHNICAL PROBLEMS BEFORE ACHIEVING
SUCCESSFUL RESULTS. THESE PROBLEMS PARTICULARLY CONCERNED FORMULATING,
MIXING, CURING AND OTHERWISE PROCESSING AND SHAPING THE COMBUSTIBLE
GRAIN IN SUCH A WAY AS TO PROVIDE AND CONSISTENTLY MAINTAIN GAS
PRESSURES WITHIN THE MAXIMUM AND MINIMUM TIME/PRESSURE LIMITS REQUIRED
FOR PROPER OPERATION OF THE GUIDANCE AND CONTROL ELEMENTS OF THE
MISSILE.
"ROCKETDYNE THEREAFTER FOR SEVERAL YEARS WAS USED AS THE NAVY'S
SOURCE FOR FURNISHING AND LOADING GRAIN AND IGNITERS IN ACCORDANCE WITH
SPECIFICATIONS DERIVED FROM THE DEVELOPMENT EFFORT AND EARLY PRODUCTION
EXPERIENCE, WHICH SPECIFICATIONS COVERED THE FORMULATION OF THE GRAIN
AND PROCESSING THEREOF AS SO DEVELOPED, AS WELL AS PERFORMANCE
REQUIREMENTS FOR ACCEPTANCE TESTS, REGARDING IGNITION OF AND PRESSURE
GENERATED BY THE GRAIN. AS LOADED AS SO SPECIFIED, THE GENERATORS WERE
DESIGNATED AS GAS GENERATORS MK 2 MOD 1 AND MK 3 MOD 1.
"FOR THE FISCAL YEAR 1963 PROCUREMENT, HOWEVER, IT WAS DECIDED TO
OBTAIN COMPETITION BY FORMAL ADVERTISING. THE PROCUREMENT CALLED FOR
FABRICATING AND LOADING GRAIN IN ACCORDANCE WITH THE ABOVE-MENTIONED
SPECIFICATIONS FOR SOME 1442 GAS GENERATOR SETS. (A "SET" CONSISTS OF
ONE MK 2 AND ONE MK 3 GAS GENERATOR, EACH WITH IGNITOR, NEEDED TO EQUIP
ONE MISSILE.) BIDS WERE RECEIVED FROM ROCKETDYNE, BERMITE AND TALLEY,
TALLEY WAS AWARDED THE PROCUREMENT (CONTRACT NOW 64-0132-F) IN NOVEMBER
1963.
"SEVERAL WEEKS AFTER AWARD, IT APPEARED THAT TALLEY PROPOSED TO
DEVIATE FROM THE CONTRACT SPECIFICATION REGARDING THE GRAIN FORMULATION.
THIS EVIDENTLY AROSE FROM THE FACT THAT THE PRODUCER (PHILIPPS
PETROLEUM) OF AN INGREDIENT SPECIFIED AS A BINDER FOR THE GRAIN HAD
DISCONTINUED MANUFACTURE THEREOF, IN FAVOR OF A PRODUCT WHICH PHILLIPS
CONSIDERED SUPERIOR FOR ITS GENERAL CUSTOMERS; AND PHILLIPS WAS NOT
WILLING TO UNDERTAKE MANUFACTURE OF THE DISCONTINUED MATERIAL TO PROVIDE
THE RELATIVELY SMALL QUANTITY NEEDED BY TALLEY.
"SEVERAL CONFERENCES WERE HELD BETWEEN REPRESENTATIVES OF TALLEY AND
OF THE BUREAU OF NAVAL WEAPONS AT WHICH THE MATTER OF THE BINDER WAS
DISCUSSED. TALLEY EVIDENTLY HAD AT STAKE NOT ONLY THE AVOIDANCE OF THE
HIGHER COST OF OBTAINING THE SPECIFIED BINDER BUT ALSO AVOIDING THE
DELAY INCIDENT THERETO, IN THE FACE OF THE TIGHT SCHEDULES SET UP IN ITS
CONTRACT. MOREOVER, TALLEY ACTUALLY PROCEEDED WITH WORK ON PRODUCTION
UNITS AS WELL AS ON PRE-PRODUCTION UNITS IN THE PRE-PRODUCTION PHASE
UTILIZING THE NEW BINDER; AND THE GREATER TALLEY'S INVESTMENT OF TIME
AND MONEY IN PROCEEDING ON THAT BASIS, THE MORE IMPORTANT IT PRESUMABLY
BECAME TO TALLEY IN TERMS OF MONEY AND TO ALL CONCERNED IN TERMS OF
MEETING SCHEDULES THAT USE OF THE NEW BINDER NOT BE DISAPPROVED BY THE
BUREAU.
"THE BUREAU ALSO HAD A STRONG INTEREST IN AVOIDING DELAY, BECAUSE
REQUIREMENTS FOR DELIVERY OF ADDITIONAL GAS GENERATORS WERE CONSIDERED
URGENT. ON THE OTHER HAND, THE DIFFICULTIES ENCOUNTERED OVER A LONG
PERIOD OF TIME BY ROCKETDYNE IN DEVELOPING AND PRODUCING UNITS WHICH
WOULD PERFORM AS DESIRED INDICATED THAT A CHANGE IN THE GRAIN
FORMULATION INVOLVED RISK THAT THE TALLEY PRODUCT WOULD NOT MEET
REQUIREMENTS.
"THE FAMILY OF PROPELLANTS INVOLVED (UTILIZING AMMONIUM NITRATE AS
THE OXIDIZER) IS BY NO MEANS PERFECTLY UNDERSTOOD. SUBSTANTIAL
VARIATIONS IN THE PERFORMANCE OF THE FINISHED (LOADED) GRAIN CAN BE
PRODUCED BY SEEMINGLY INSIGNIFICANT VARIATIONS IN THE PROPORTIONS OF THE
GRAIN INGREDIENTS, IN THE METHOD AND RATE OF ADDITION OF INGREDIENTS TO
THE MIXER, IN THE DURATION AND TEMPERATURE OF MIXING, AND IN THE
MOISTURE IN THE AIR DURING FABRICATION AND LOADING OF THE GRAIN. FOR
EXAMPLE, AFTER ROCKETDYNE HAD LONG BEEN IN PRODUCTION, THAT COMPANY
DECIDED TO INTRODUCE A MORE UP-TO-DATE MIXER. ROCKETDYNE FOUND THAT IT
COULD NOT MAKE ACCEPTABLE GRAIN WITH THIS MIXER BUT WAS ABLE TO DO SO
WHEN IT RESUMED USE OF THE OLD ONE. COMMAND TECHNICAL PERSONNEL HAVE
FOUND NO SATISFACTORY EXPLANATION FOR THIS.
"ALTHOUGH ALLOWING TALLEY TO USE THE NEW BINDER WAS THEREFORE
ACKNOWLEDGED TO INVOLVE RISK OF FAILURE, NAVY TECHNICIANS WERE UNABLE TO
DEMONSTRATE THAT THE CHANGE WOULD RESULT IN UNACCEPTABLE GRAIN; AND THE
CHANGE WAS NOT WITHOUT TECHNICAL ATTRACTIVENESS IN THAT THE FORMULATION
WOULD THEN BE MORE CLOSELY AKIN THAN THE MOD 1 FORMULATION TO MATERIALS
WITH WHICH TALLEY HAD HAD EXPERIENCE IN PRODUCING. GIVEN THESE FACTORS
AND THE MOUNTING OF PRESSURE TO AVOID ANY DELAY TO PRODUCTION AS THE
TIME WHEN FINISHED GENERATORS WOULD BE NEEDED DREW NEARER, IT WAS
DECIDED TO PERMIT TALLEY TO CONTINUE TO PROCEED WITH USE OF THE NEW
BINDER. THE DEGREE OF JEOPARDY TO PROGRAM REQUIREMENTS WAS FELT TO BE
NOT UNACCEPTABLE IN THAT IT WAS BELIEVED THAT ROCKETDYNE COULD BE CALLED
ON TO MAKE UP THE DEFICIENCY IF TALLEY FAILED. THE DECISION TO PERMIT
USE OF THE NEW BINDER WAS EVIDENTLY COMMUNICATED TO TALLEY VERBALLY,
WITHOUT ANY EXPRESS WRITTEN CONFIRMATION.
"TALLEY DELIVERED PRE-PRODUCTION SAMPLES ON SCHEDULES IN MARCH 1964,
FOR TEST PRIOR TO PROCEEDINGS WITH PRODUCTION, WHICH WAS SCHEDULED TO
START IN MAY 1964. THE SAMPLES FAILED THE TESTS IN SOME RESPECTS AND
THERE FOLLOWED A YEAR OF EFFORT TO QUALIFY THE TALLEY PRODUCT, ENDING AT
THE SUCCESSFUL CONCLUSION OF PRE-PRODUCTION QUALIFICATION TESTS IN MARCH
1965. TALLEY PRODUCTION DELIVERIES STARTED IN APRIL 1965 AND WERE
COMPLETED IN NOVEMBER 1965. IN THE INTERIM, IT WAS NECESSARY TO MAKE
ADDITIONAL PROCUREMENTS FROM ROCKETDYNE TO MEET URGENT FLEET
REQUIREMENTS.
"FOR PRESENT PURPOSES IT MAY BE SAID THAT AT THE TIME OF TESTING OF
TALLEY'S PRODUCTION LOTS FOR ACCEPTANCE, THE LOTS ACCEPTED PASSED THE
SPECIFIED ACCEPTANCE TESTS RELATING TO THE ABILITY OF THE GENERATORS TO
GENERATE PRESSURES WITHIN THE RANGE SET OUT IN THE APPLICABLE CONTRACT
SPECIFICATION. HOWEVER, TESTS CONDUCTED BY THE NAVY ON TALLEY UNITS
FROM TIME TO TIME FROM 4 TO 6 MONTHS AFTER THEIR ACCEPTANCE RAISED DOUBT
AS TO THE SUITABILITY OF THE TALLEY UNITS FOR THEIR INTENDED USE.
"PERIODICALLY, AFTER DELIVERY, GAS GENERATORS ARE TESTED ON A SAMPLE
BASIS TO KEEP TRACK OF THE CAPABILITIES OF ASSOCIATED LOTS IN SERVICE AS
AGING OF THE GRAIN PROCEEDS. IN JUNE 1965, ON TESTING OF THE TYPE LIFE
CONTROL SAMPLE OF TWO MK 2 MOD 2 AND TWO MK 3 MOD 2 UNITS, ONE MK 3 UNIT
PRODUCED PRESSURE BELOW SPECIFICATION LIMITS.
"FOLLOWING FAILURES ASCRIBED TO FAULTY GENERATORS IN FIRING OF
COMPLETE TARTAR MISSILES WHICH CONTAINED TALLEY GENERATORS, THE NAVAL
PROPELLANT PLANT IN JUNE 1965 CONDUCTED AN INVESTIGATION IN
WHICH FOURTEEN MK 3 MOD 2 UNITS AND FORTY-FIVE MK 2 MOD 2 UNITS WERE
FIRED. (BOTH MK 2 AND MK 3 USE THE SAME PROPELLANTS AND IGNITER.) ONE
MK 3 UNIT EXCEEDED THE SPECIFIED UPPER PRESSURE LIMIT. TWELVE MK 2
UNITS FAILED TO MEET MINIMUM SPECIFICATION REQUIREMENTS.
"IN OCTOBER 1965, THE NAVAL PROPELLANT PLANT DESIRED TO CHECK OUT A
NEWLY INSTALLED DEVICE CALLED A BALLISTIC CENTRIFUGE, DESIGNED TO
SUBJECT GENERATORS TO RAPID ACCELERATION AND OTHER CONDITIONS
ENCOUNTERED IN MISSILE FLIGHT, AS ENVISIONED IN TESTS CALLED FOR BY THE
SPECIFICATIONS. AVAILABLE TALLEY-PRODUCED UNITS WERE EMPLOYED INITIALLY
FOR THE CHECK-OUT OF THE CENTRIFUGE. ON THE FIRST TWO UNITS, THE
IGNITER FIRED BUT FAILED TO IGNITE THE GRAIN. SEVEN ADDITIONAL MK 3 MOD
2 UNITS WERE THEN PUT ON THE CENTRIFUGE. THESE IGNITED, BUT TWO
EXTINGUISHED AFTER BURNING FOR SEVERAL SECONDS AND TWO OTHERS BURNED
BELOW MINIMUM SPECIFICATION LIMITS. AS A CHECK ON THE CENTRIFUGE
DEVICE, A SIMILAR NUMBER OF ROCKETDYNE UNITS WAS THEN PUT THROUGH THE
SAME TESTS ON THE MACHINE. THESE UNITS WITHOUT EXCEPTION BURNED WITHIN
SPECIFICATION REQUIREMENTS.
"THE FOREGOING RESULTS SHOWED SO WIDE A VARIANCE FROM SPECIFIED
PERFORMANCE BY TALLEY UNITS ONLY A FEW MONTHS AFTER DELIVERY AS TO
INDICATE THE POSSIBLE EXISTENCE OF SERIOUS PROBLEMS. ELEVEN ADDITIONAL
TALLEY MK 3 MOD 2 UNITS WERE THEN TESTED IN A MODIFIED (REDUCED)
ACCELERATION ENVIRONMENT. NONE OF THESE EXTINGUISHED, BUT TWO PRODUCED
PRESSURES CONSIDERABLY EXCEEDING SPECIFICATION LIMITS.
"THUS, AT THE CONCLUSION OF THE CENTRIFUGE TESTS IN NOVEMBER 1965, A
TOTAL OF 83 TALLEY UNITS HAD BEEN SUBJECTED TO CONTROLLED TESTS FROM
FOUR TO SIX MONTHS AFTER ACCEPTANCE INTO INVENTORY, AND 22 UNITS (OR
OVER 25 PERCENT) FAILED TO BURN IN ACCORDANCE WITH SPECIFICATIONS. ALL
OF THE UNITS WERE FROM LOTS THAT WERE JUDGED SATISFACTORY AT THE TIME OF
ACCEPTANCE. EXPERIENCE GAINED FROM THE ROCKETDYNE-PRODUCED MOD 1
GENERATORS INDICATES THAT ABOUT FIVE YEARS SHOULD HAVE ELAPSED BEFORE
FAILURES OF THE EXTENT AND QUANTITY EXHIBITED BY THE TALLEY UNITS TESTED
WOULD BE ENCOUNTERED. MOST OF THE FAILURES REPRESENT INABILITY TO
GENERATE MINIMUM REQUIRED PRESSURE, A PHENOMENON ASSOCIATED WITH AGING.
THEREFORE, FOR REASONS NOT NOW KNOWN TO THE NAVY, IT APPEARED IN
NOVEMBER 1965, AND STILL APPEARS, THAT THE PROPELLANTS USED IN THE
TALLEY UNITS ARE GENERALLY AGING AT AN ABNORMAL RATE AND THEIR
SUITABILITY FOR SERVICE USE IN MISSILES IS DEFINITELY DOUBTFUL. THE
NAVY'S DOUBT IN THIS REGARD IS INCREASED BY THE TALLEY GENERATORS WHICH
PRODUCED PRESSURES EXCEEDING THE SPECIFICATION LIMITS; THIS BEHAVIOR IS
ATYPICAL, SUGGESTION ERRATIC INSTABILITY OF THE TALLEY MOD 2 GRAIN, FOR
REASONS NOT UNDERSTOOD BY THE NAVY.
"THE PROCUREMENT TO WHICH THE INSTANT PROTEST RELATES WAS FORMALLY
PLANNED IN 1965 AS A NEGOTIATED PURCHASE IN WHICH ROCKETDYNE AND TALLEY
WOULD COMPETE. THIS PLAN WAS REFLECTED IN THE RELATED PROCUREMENT
REQUEST, DATED 22 JUNE 1965 (COPY ATTACHED). THE ABOVE-DESCRIBED TESTS
OF TALLEY UNITS IN OCTOBER 1965, WHEN ADDED TO THE RESULTS OF THE
EARLIER POST-ACCEPTANCE TESTS ALSO DESCRIBED ABOVE, PERSUADED THE NAVY
THAT IT SIMPLY COULD NOT JUSTIFY PERMITTING ACQUISITION OF ANY
MORE MOD 2 UNITS UNLESS AND UNTIL SUCH TIME AS IT COULD BE RELIABLY
DETERMINED, DESPITE THE EVIDENCE TO THE CONTRARY SHOWN BY THE TESTS,
THAT THE MOD 2 (TALLEY) VERSION WOULD AFTER DELIVERY CONTINUE TO PERFORM
WITHIN ACCEPTABLE PRESSURE LIMITS WHEN FIRED AT ANY TIME OVER A
REASONABLY LONG PERIOD OF SERVICE LIFE. A PRIMARY PURPOSE OF THE
SURFACE MISSILE SYSTEMS PROJECT, DESIGNATED BY THE SECRETARY OF THE NAVY
FOR HIGH PRIORITY ATTENTION AND EFFORT, IS TO IMPROVE THE RELIABILITY IN
PERFORMANCE OF THE FAMILY OF SHIP-LAUNCHED ANTIAIRCRAFT GUIDED MISSILES
OF WHICH THE TARTAR IS ONE OF THE PRINCIPAL IN-SERVICE MEMBERS. THE
EVIDENCE DERIVED FROM THE ABOVE-MENTIONED TESTS IS CONSIDERED, IN THE
TECHNICAL JUDGMENT OF THE PROJECT OFFICE AND OF THIS COMMAND, TO PROVIDE
REASONABLE BASIS FOR SUBSTANTIAL DOUBT AS TO THE RELIABILITY IN SERVICE
PERFORMANCE OF THE TALLEY (MOD 2) PRODUCT; THE BASIC PURPOSE OF
IMPROVING RELIABILITY COULD NOT BE SERVED BY PROCURING MORE MOD 2 UNITS
WHILE THAT DOUBT PERSISTED.
"ACCORDINGLY, AT THE END OF NOVEMBER 1965, THE PROJECT OFFICE
DIRECTED THAT THE PROCUREMENT REQUEST BE AMENDED TO DELETE REFERENCE
THEREIN TO MOD 2 UNITS, LEAVING ONLY THE MOD 1 PRODUCT IN THE REQUEST.
"MEANWHILE, HOWEVER, THE BUREAU OF NAVAL WEAPONS UNIT WHICH PREPARED
SYNOPSES OF PROCUREMENTS FOR PUBLICATION IN THE COMMERCE DAILY HAD
ALREADY PREPARED A SYNOPSIS FOR THE PROCUREMENT IN QUESTION, BASED ON
THE ORIGINAL PROCUREMENT PLAN, PURSUANT TO A REQUEST ON 17 SEPTEMBER
1965 FROM THE HEAD OF A DIFFERENT UNIT IN THE BUREAU, WHICH PREPARED
REQUESTS FOR PROPOSALS OR QUOTATIONS. THAT UNMODIFIED SYNOPSIS,
COVERING INTENDED PROCUREMENT OF GAS GENERATORS MOD 1 AND MOD 2, WAS
RELEASED CONCURRENTLY WITH THE MODIFIED RFQ DATED 24 FEBRUARY 1966 FOR
MOD 1 UNITS ONLY. THE SYNOPSIS PREPARATION UNIT WAS INADVERTENTLY NOT
INFORMED BY THE UNIT WHICH PREPARED RFQS OF THE CHANGE IN THE
PROCUREMENT PLAN. IT SEEMS LIKELY THAT THE RETIREMENT AND REPLACEMENT
IN LATE DECEMBER 1965 OF THE HEAD OF THE UNIT WHICH PREPARED RFQS HAD A
BEARING ON THIS FAILURE OF COMMUNICATIONS.
"ON 4 MARCH 1966, TALLEY REQUESTED A COPY OF THE RFQ AND THE SYNOPSIS
PREPARATION UNIT THEN LEARNED THAT THE SYNOPSIS WAS IN ERROR. AN
IMMEDIATE ATTEMPT BY TELEPHONE CALL TO CHICAGO TO PREVENT ITS
PUBLICATION FAILED, AS THE COMMERCE DAILY HAD ALREADY BEEN PUBLISHED
CONTAINING THE SYNOPSIS AS SHOWN IN ATTACHMENT TO TALLEY'S PROTEST.
THEREUPON A SYNOPSIS CONSISTENT WITH THE RFQ WAS PREPARED AND PUBLISHED
ON 8 MARCH 1966.
"THE EXCLUSION IN THE 8 MARCH SYNOPSIS OF THE MOD 2 (TALLEY) VERSION,
WHICH HAD FOUR DAYS EARLIER BEEN SYNOPSIZED AS COMPETITIVE, MIGHT
UNDERSTANDABLY SUGGEST AN ARBITRARY ATTEMPT TO EXCLUDE THE MOD 2 FROM
COMPETITION. IN FACT, HOWEVER, THE 4 MARCH SYNOPSIS REFLECTED
ADMINISTRATIVE ERROR IN FAILURE TO REFLECT THE DECISION MADE SOME THREE
MONTHS EARLIER THAT THE MOD 2 COULD NOT BE CONSIDERED ACCEPTABLE FOR
PROCUREMENT.
"THE NAVY DOES NOT CONSIDER IT IMPOSSIBLE, AND HOPES, THAT THROUGH
SUBSEQUENT AND FUTURE TESTS AND INVESTIGATION IT MAY BE FOUND THAT THE
BURNING CHARACTERISTICS OF MOD 2 UNITS IN INVENTORY DEPART LESS
DRAMATICALLY FROM THOSE REQUIRED FOR RELIABLE SERVICE THAN IS INDICATED
BY THE ABOVE-MENTIONED TESTS ALREADY CONDUCTED. WHILE STEPS TO PERFORM
ADDITIONAL TESTS WERE INITIATED AFTER THE "CENTRIFUGE TESTS" IN NOVEMBER
1965, FURTHER TESTS WERE AND HAVE BEEN HANDICAPPED BY LACK OF IGNITERS.
THE NOVEMBER TESTS DISCLOSED DEFICIENCIES IN THE DESIGN OF THE IGNITERS
DELIVERED, RELATIVE TO INSERTING THEM IN THE UNITS WITHOUT INADVERTENTLY
DAMAGING ELECTRICAL CONTACT PINS, AND IT WAS ARRANGED THAT TALLEY WOULD
REPLACE ALL THE IGNITERS. DELIVERIES OF THE NEW IGNITERS COMMENCED ONLY
RECENTLY. MOREOVER, A NECESSARY PARTY OF TESTING THE CHARACTERISTICS OF
THE MOD 2 CONSISTS OF PERIODIC TESTS OVER A PERIOD REASONABLY SIMULATING
THE DESIRED SERVICE LIFE OF ABOUT 5 YEARS. THUS, THE DOUBTS AS TO THE
MOD 2'S SUITABILITY AS THEY APPEARED IN NOVEMBER 1965 STILL REMAIN AND
CANNOT BE EXPECTED TO BE ADEQUATELY RESOLVED (AT LEAST IN FAVOR OF THE
MOD 2) FOR A CONSIDERABLE ADDITIONAL PERIOD OF TIME.
"ON THE OTHER HAND, THE NAVY HAS A HIGH DEGREE OF CONFIDENCE IN THE
ABILITY OF THE MOD 1 PRODUCT TO OPERATE SATISFACTORILY IN SERVICE USE.
THIS CONFIDENCE DERIVES FROM AT LEAST TWO SOURCES. FIRST, THE RESULTS
OF CONTROLLED TESTS OF MOD 1 UNITS WHEREIN BURNING AND PRESSURES ARE
CLOSELY MEASURED UNDER CONTROLLED CONDITIONS, AS IN THE ABOVE-MENTIONED
TESTS OF MOD 2 UNITS. THESE TESTS INCLUDE SOME INCIDENTAL TESTING (AS
FOR CHECK-OUT OF THE CENTRIFUGE EQUIPMENT IN NOVEMBER 1965) AND ALSO A
PLANNED SERIES OF TESTS, OF SAMPLES OF DELIVERED LOTS, AT SIX-MONTH
INTERVALS AFTER DELIVERY, TO MONITOR THE EFFECT OF AGING ON THE BEHAVIOR
OF THE UNITS, PARTICULARLY AS TO BURNING PERFORMANCE. AGING FOR THESE
LIFE TESTS IS ACCELERATED BY CONTROLLED DEVICES DESIGNED TO SIMULATE IN
6 MONTHS CONDITIONS WHICH UNITS WOULD EXPERIENCE DURING A YEAR IN
SERVICE. A QUANTITY OF APPROXIMATELY 140 MOD 1 UNITS HAVE BEEN SO
TESTED. THE AVERAGE PERCENTAGE OF FAILURE OF TESTED MOD 1 UNITS TO BURN
WITHIN SPECIFICATION LIMITS DURING A SIMULATED LIFE OF FOUR YEARS IS
ABOUT 8 PERCENT, REFLECTING AN INCREASE IN THE RATE OF FAILURE AS AGE
ADVANCES. THE AVERAGE PERCENTAGE OF FAILURE IN THE PERIODIC TESTS
PRECEDING THE FOURTH-YEAR TEST IS LESS THAN 4 PERCENT.
"ANOTHER SOURCE OF CONFIDENCE IS THE PERFORMANCE OF COMPLETE TARTAR
MISSILES EQUIPPED WITH MOD 1 UNITS WHEN FIRED. * * * PERFORMANCE ON
EACH FIRING IS OBSERVED AND REPORTED IN DETAIL. THE * * * FAILURES
WHICH CAN BE ATTRIBUTED WITH CERTAINTY TO GAS GENERATOR FAILURE
REPRESENT ABOUT 1 PERCENT OF THE TOTAL FLIGHTS. AN ADDITIONAL * * *
FAILURES OCCURRED BECAUSE OF ELECTRICAL PROBLEMS, WHICH CAN INCLUDE
FAULTY GAS GENERATOR PERFORMANCE, BUT THE REPORTS INDICATE THAT THE
MAJORITY OF THESE FAILURES WERE ATTRIBUTABLE TO SO-CALLED SECONDARY
FAILURES, SUCH AS POOR CONTACTS, IN THE EXTENSIVE WIRING AND CIRCUITRY
IN THE MISSILE GUIDANCE AND CONTROL UNIT. EVEN WERE ALL SUCH FAILURES
ATTRIBUTED TO FAULT ON THE PART OF MOD 1 GENERATORS THE THE TOTAL
PERCENTAGE OF FAILURE WOULD BE LESS THAN 5 PERCENT.
"THUS, THE NAVY CANNOT AND DOES NOT AGREE WITH TALLEY'S CLAIM, ON
WHICH TALLEY'S PROTEST IS BASICALLY FOUNDED, THAT THE MOD 1 AND MOD 2
ARE, FOR PURPOSES OF THE PROTESTED PROCUREMENT, EQUIVALENT PRODUCTS.
UNLESS THE NAVY IS TO ABDICATE ITS RESPONSIBILITY FOR CONDUCT OF THE
MISSILE PROGRAM CONCERNED, INCLUDING THE PRIMARY EFFORT TO IMPROVE
MISSILE RELIABILITY, THE NAVY, NOT TALLEY, MUST DETERMINE EQUIVALENCY.
SUCH DETERMINATION IS A MATTER OF PROFESSIONAL, TECHNICAL JUDGMENT. THE
PRECEDING PORTIONS OF THIS REPORT SHOW WHY SUCH JUDGMENT BY THE NAVY
THAT THE MOD 2 CAN NOT NOW BE DEEMED EQUIVALENT TO THE MOD 1, NOR AN
ACCEPTABLE ALTERNATE THERETO, IS NEITHER ARBITRARY NOR UNREASONABLE.
"IT MUST BE ACKNOWLEDGED THAT MUCH TIME HAS PASSED SINCE RECEIPT OF
TALLEY'S 15 MARCH 1966 LETTER TO THE SECRETARY OF THE NAVY VIA THE
BUREAU OF NAVAL WEAPONS. EFFORTS SPEND IN THE MECHANICS OF PREPARING
AND PROCESSING A REPLY TO THAT LETTER, ALONG THE SAME LINES INDICATED
HEREIN, WERE DEEMED OVERTAKEN BY EVENTS AND HAVE BEEN REORIENTED TO
EXTENSIVE EFFORT, UNDERLYING THE REPORT MADE BY THIS LETTER, TO ASSURE
IDENTIFICATION AND VALIDATION OF DATA AND PREMISES FORMING THE BASIS OF
THE NAVY'S EXCLUSION OF MOD 2 UNITS FROM COMPETING IN THE PROCUREMENT IN
QUESTION HERE. HOWEVER, NOTWITHSTANDING THE TIME EXPENDED BY THE NAVY
IN THESE EFFORTS, THE URGENCY OF THE NEED FOR MORE GAS GENERATORS WHICH
WILL OPERATE RELIABLY HAS NOT DIMINISHED IN FACT.
"WHILE THE COMMAND UNDERSTANDS TALLEY'S PROTEST AS BEING FOUNDED ON
THE NAVY'S EXCLUSION OF THE MOD 2 PRODUCT FROM COMPETING WITH THE MOD 1
PRODUCT, FOR PURPOSES OF THE PROCUREMENT IN QUESTION, IT SHOULD BE NOTED
HERE THAT TALLEY'S UNSOLICITED PROPOSAL ALSO INCLUDED A PROPOSAL TO
FURNISH THE MOD 1 PRODUCT. TALLEY HAS NOT BEEN A PRODUCER OF THAT
PRODUCT; ROCKETDYNE ALONE HAS BEEN A QUALIFIED PRODUCER THEREOF.
BECAUSE OF THE UNPREDICTABLE AND UNEXPLAINABLE VAGARIES OF THE MATERIALS
INVOLVED, IT IS THE JUDGMENT OF COGNIZANT NAVY TECHNICAL SPECIALISTS
THAT IT WOULD REQUIRE A PERIOD OF SEVERAL MONTHS, AND COULD WELL REQUIRE
A YEAR, FOR A NEW SOURCE (EVEN ONE WITH TALLEY'S GENERAL COMPETENCE IN
THE FIELD) TO LEARN HOW TO PRODUCE ACCEPTABLE AND RELIABLE MOD 1 GRAINS.
THESE TECHNICAL CONSIDERATIONS, COUPLED WITH THE URGENCY FOR REASONS
ALREADY STATED OF OBTAINING NEWLY-LOADED GAS GENERATORS, REASONABLY
WARRANT THE NAVY IN EXCLUDING TALLEY FROM COMPETING AS A SOURCE FOR MOD
1 GAS GENERATORS. IT MAY ALSO BE NOTED, INCIDENTALLY, THAT EVEN AFTER
CONSIDERING APPROPRIATE EVALUATION FACTORS, TALLEY'S QUOTE ON MOD 1 GAS
GENERATORS SUBSTANTIALLY EXCEEDS THAT OF ROCKETDYNE.'
CONSIDERING THE FINALITY THAT ATTACHED AS A MATTER OF LAW TO THE
ASSISTANT SECRETARY'S FINDING AND DETERMINATION, AND THE FACT THAT
TECHNICALLY COGNIZABLE PERSONNEL OF THE NAVAL ORDINANCE COMMAND HAVE
CAREFULLY AND THOROUGHLY EVALUATED YOUR MOD 2 GAS GENERATORS ON THE
BASIS OF THE NAVY'S URGENT REQUIREMENTS, WE HAVE NO ALTERNATIVE BUT TO
DENY YOUR PROTEST.
B-159101, JUN. 24, 1966
TO MR. CECIL H. KERNS:
YOUR LETTER OF JUNE 14, 1966, WITH ATTACHMENTS, REQUESTS THAT THIS
OFFICE CONSIDER THE CLAIM OF RACINE COLLEGE IN THE STATED AMOUNT OF
$460,000,000. RACINE COLLEGE MAKES IT CLAIM AS RESIDUARY BENEFICIARY OF
THE WILL OF CAROLINE DURKEE WHO DIED ON DECEMBER 9, 1887.
THE AMOUNT CLAIMED REPRESENTS THE PRINCIPAL SUM PLUS ACCRUED INTEREST
OF CERTAIN PARAMOUNT LIEN BONDS WHICH ALLEGEDLY WERE OWNED BY CHARLES
DURKEE, THE HUSBAND OF CAROLINE DURKEE, AT THE TIME OF HIS DEMISE ON
JANUARY 14, 1870. CAROLINE DURKEE INHERITED THE BULK OF HER HUSBAND'S
ESTATE.
IT WOULD SERVE NO USEFUL PURPOSE TO DETAIL HERE THE BASIS FOR THE
CLAIM MADE NOR THE GROUNDS ARGUED FOR THE JURISDICTION OF THIS OFFICE
OVER THE CLAIM PRESENTED. THE PETITION OF HOWARD T. FOULKES, AS
ADMINISTRATOR OF THE ESTATES OF CHARLES DURKEE AND CAROLINE DURKEE,
DECEASED, AND AS SECRETARY-TREASURER OF THE BOARD OF TRUSTEES OF RACINE
COLLEGE, RESIDUARY BENEFICIARY, COURT OF CLAIMS NO. 401-64, WAS
DISMISSED BY THE COURT OF CLAIMS ON OCTOBER 29, 1965. ON APPEAL THE
SUPREME COURT DENIED CERTIORARI BY ITS ORDER NO. 955, FOULKES,
ADMINISTRATOR V. UNITED STATES, 383 U.S. 944 (MARCH 21, 1966). WE VIEW
THE ABOVE-CITED JUDICIAL ACTIONS AS RES JUDICATA SO FAR AS OUR OFFICE IS
CONCERNED AND OUR CONSIDERATION OF THE MATTER IS THEREFORE PRECLUDED.
MOREOVER, EVEN IF WE WERE AUTHORIZED TO CONSIDER THE CLAIM, ITS AGE
COUPLED WITH ALL THE PRIOR LITIGATION INVOLVING THE SUBJECT MATTER OF
THE CLAIM WOULD RAISE SUFFICIENT DOUBT AS TO ITS VALIDITY TO PRECLUDE
ITS ALLOWANCE BY THE GENERAL ACCOUNTING OFFICE. LONGWILL V. UNITED
STATES, 17 CT.CL. 288; CHARLES V. UNITED STATES, 19 C.T.CL. 316.
ADDITIONALLY, THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31
U.S.C. 237, BARS ALL CLAIMS OTHERWISE COGNIZABLE BY THIS OFFICE WHICH
ARE NOT RECEIVED HERE WITHIN TEN FULL YEARS FROM THE TIME THEY ACCRUE.
SPECIFICALLY THE LAW CODIFIED AT 31 U.S.C. 237 PROVIDES:
"/1) EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE,
TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED
STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND
236 OF THIS TITLE, SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING
THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR
ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER
THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY
PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES
ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER
ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE
IS ESTABLISHED.
"/2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION
SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED
TO THE CLAIMANT, WITH A COPY OF THIS SECTION, AND SUCH ACTION SHALL BE A
COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'
B-157774, JUN. 23, 1966
TO MR. WINSTON EDMOND:
REFERENCE IS MADE TO YOUR LETTER OF APRIL 7, 1966, REQUESTING FURTHER
CONSIDERATION OF YOUR CLAIM FOR PAY AND ALLOWANCES BELIEVED TO BE DUE,
INCIDENT TO YOUR SERVICE IN THE U.S. ARMY FROM JUNE 1943 TO JUNE 1944.
AS THE BASIS FOR YOUR REQUEST, YOU CONTEND THAT OUR DECISION OF
NOVEMBER 23, 1965, CONTAINED SOME INACCURACIES, INCLUDING A REFERENCE TO
A LETTER FROM YOU DATED JULY 15, 1947, WHICH, YOU STATE, YOU DID NOT
WRITE, AND YOU CONTINUE TO INSIST THAT ADDITIONAL MONIES ARE DUE YOU FOR
YOUR ARMY SERVICE.
WE ARE ENCLOSING A COPY OF YOUR LETTER DATED JULY 15, 1947. THE
SIGNATURE THEREON APPEARS TO BE GENUINE AS DO THOSE ON THE PAYROLL
VOUCHERS MENTIONED IN OUR DECISION OF NOVEMBER 23, 1965, VIZ, VOUCHERS
NUMBERED 6777, 9477 AND 23640. THE PAYMENTS MADE ON THOSE VOUCHERS AND
ON THE FINAL PAY VOUCHER (NO. 3369) MENTIONED IN YOUR LETTER OF JULY 15,
1947, SHOW THAT YOU WERE OVERPAID IN THE AMOUNT OF $5.80.
AS YOUR LETTER OF APRIL 7, 1966, PRESENTS NO EVIDENCE NOT PREVIOUSLY
CONSIDERED, THERE IS NO FURTHER ACTION OUR OFFICE MAY TAKE ON YOUR
CLAIM.
B-158953, JUN. 23, 1966
TO SILENT HOIST AND CRANE CO., INC. :
REFERENCE IS MADE TO YOUR LETTERS OF APRIL 13 AND MAY 10, 1966,
PROTESTING AGAINST THE AWARD OF NEGOTIATED CONTRACTS, ON A SOLE SOURCE
BASIS, FOR THE PURCHASE OF MATERIALS HANDLING EQUIPMENT BY THE DEFENSE
GENERAL SUPPLY CENTER (DGSC), DEFENSE SUPPLY AGENCY (DSA), RICHMOND,
VIRGINIA, UNDER REQUEST FOR PROPOSALS (RFP) NOS. DSA-4-66-4406,
4-66-4407, 4-66-4478, 4-66-4740 AND 4-66-4965. ALL OF THE EQUIPMENT IN
QUESTION--- FORKLIFT TRUCKS, VARYING IN CAPACITY FROM 4,000 POUNDS TO
15,000 POUNDS AND WAREHOUSE TRACTORS OF 4,000-POUND CAPACITY--- IS TO BE
SHIPPED TO SOUTHEAST ASIA TO SUPPORT COMBAT OPERATIONS IN VIET NAM.
WITH SPECIFIC REFERENCE TO RFP NO. DSA-4-66-4740, WHICH COVERS
FORKLIFT TRUCKS WITH A 15,000 POUND CAPACITY, MANUFACTURED BY THE HYSTER
CO., YOU STATE THAT SINCE THE ITEM IS IDENTICAL TO EQUIPMENT PROCURED
THROUGH COMPETITIVE NEGOTIATIONS IN WHICH YOU PARTICIPATED IN LATE 1963,
UNDER RFP NO. DSA-4-64-646, WHICH CITED MILITARY SPECIFICATION
MIL-T-15442J, IT IS NOT A PROPRIETARY ITEM; THAT THE 1963 UNIT PRICE
WAS APPROXIMATELY $8,000; AND THAT THE PRICE AT WHICH THE CURRENT AWARD
WAS MADE IS APPROXIMATELY 18 PERCENT HIGHER. YOU QUESTION WHY SUCH
PREVIOUSLY PURCHASED UNITS COULD NOT BE SHIPPED OVERSEAS AND WHY
REPLACEMENT UNITS COULD NOT BE PROCURED ON A COMPETITIVE BASIS. YOU
STATE THAT THE DEPARTMENT OF THE NAVY, BUREAU OF SUPPLIES AND ACCOUNTS
(NOW NAVY SUPPLY SYSTEMS COMMAND), HAS A STANDARDIZATION PROGRAM FOR THE
EQUIPMENT AND THAT A NEW SPECIFICATION, MIL-T-21870, INCORPORATING
AMENDMENTS AND CHANGES IN MIL-T-15442J, WILL BE ISSUED IN A FEW MONTHS;
ACCORDINGLY, YOU QUESTION WHETHER THE DEPARTMENT OF DEFENSE (DOD) IS NOT
DEFEATING ITS OWN STANDARDIZATION PROGRAM BY NEGOTIATING FOR UNITS
IDENTICAL TO THE PREVIOUSLY PURCHASED UNITS PRIOR TO THE ISSUANCE OF THE
NEW STANDARDIZATION REQUIREMENTS. ADDITIONALLY, YOU STATE THAT SINCE
CONGRESS HAS NOT DECLARED WAR, WARTIME PROCUREMENT PROCEDURES CANNOT BE
EMPLOYED AND THAT IN VIEW OF THE QUANTITY INVOLVED (EQUAL TO A YEAR'S
NEEDS), THE SECRETARIAL DETERMINATION TO NEGOTIATE SOLE SOURCE IS NOT IN
THE BEST INTERESTS OF THE GOVERNMENT, IS STIFLING TO COMPETITION, AND IS
MANIFESTLY UNFAIR TO YOU, A SMALL BUSINESS CONCERN WHICH IS IN A
POSITION TO FURNISH THE EQUIPMENT IN ACCORDANCE WITH THE APPLICABLE
SPECIFICATIONS. ACCORDINGLY, YOU REQUEST THAT PENDING OUR DECISION ON
YOUR PROTEST, STOP WORK ORDERS BE ISSUED ON ALL OF THE CONTRACTS.
ON FEBRUARY 19 AND MARCH 5, 1966, THE ARMY MOBILITY EQUIPMENT CENTER,
ST. LOUIS, MISSOURI, ISSUED TO THE DGSC FIVE MILITARY INTERDEPARTMENTAL
PURCHASE REQUESTS (MIPRS) FOR THE EQUIPMENT IN QUESTION. FOUR OF THE
MIPRS COVERED FORKLIFT TRUCKS, TO BE DELIVERED BY AUGUST 21, 1966, AND
EACH CITED ONLY ONE MANUFACTURER'S MODEL. THREE OF THE FORKLIFT TRUCK
MODELS, ONE EACH MANUFACTURED BY THE BAKER DIVISION, OTIS ELEVATOR
COMPANY, BY THE TOW MOTOR CORPORATION, AND BY THE HYSTER COMPANY, WERE
TO COMPLY WITH MILITARY SPECIFICATION NO. MIL-T-15442J, DATED SEPTEMBER
5, 1962, AS AMENDED, AND THE FOURTH FORKLIFT TRUCK MODEL, MANUFACTURED
BY THE BAKER DIVISION, OTIS ELEVATOR COMPANY, WAS TO COMPLY WITH
MILITARY SPECIFICATION NO. MIL-T-15636G, DATED JULY 17, 1963. THE
REMAINING MIPR COVERED A WAREHOUSE TRACTOR, MANUFACTURED BY UNITED
TRACTOR, INC., TO BE DELIVERED BY THE 90TH DAY OF 1967 (I.E., MARCH 31),
AND THE APPLICABLE MILITARY SPECIFICATION WAS NO. MIL-T-15830H, DATED
APRIL 11, 1963.
AUTHORITY TO NEGOTIATE EACH OF THE CONTRACTS WITH THE PARTICULAR
MANUFACTURER WAS INCLUDED IN A DETERMINATION AND FINDINGS (D AND F)
SIGNED BY THE ASSISTANT SECRETARY OF THE ARMY ON MARCH 25, 1966, FOR
EACH PROCUREMENT, PURSUANT TO 10 U.S.C. 2304 (A) (13) AND ARMED SERVICES
PROCUREMENT REGULATION (ASPR) 3-213. IN EACH D AND F, THE ASSISTANT
SECRETARY STATED THAT HE HAD DETERMINED THAT THE EQUIPMENT CONSTITUTES
TECHNICAL EQUIPMENT; THAT STANDARDIZATION OF THE EQUIPMENT AND
INTERCHANGEABILITY OF ITS PARTS ARE NECESSARY IN THE PUBLIC INTEREST;
AND THAT PROCUREMENT OF THE EQUIPMENT AND PARTS BY NEGOTIATION IS
NECESSARY TO ASSURE SUCH STANDARDIZATION AND INTERCHANGEABILITY. THE
DOCUMENTATION ON WHICH THE D AND F'S WERE BASED STATES THAT IMMEDIATE
STANDARDIZATION FOR EACH ITEM IS NECESSARY, INTERCHANGEABILITY WITH
ITEMS OF EQUIPMENT DAMAGED DURING COMBAT OR OTHER EMERGENCY BEING
ESSENTIAL; THAT EXISTING ASSETS IN THE SUPPLY SYSTEM ARE NOT SUFFICIENT
TO SATISFY THE VIET NAM REQUIREMENTS, THUS MAKING REDISTRIBUTION OF SUCH
ASSETS INFEASIBLE; THAT IT IS UNECONOMICAL TO USE OR DEVELOP MILITARY
DESIGN FOR THE ITEMS; THAT THE PROCUREMENT IS EXPECTED TO RESULT IN
SUBSTANTIAL SAVINGS BY LIMITING THE NUMBER AND VARIETY OF ITEMS IN VIET
NAM, BY REDUCING THE EXPENSE OF PERSONNEL TRAINING AND PUBLISHING OF
LITERATURE ON A VARIETY OF MAJOR ITEMS, BY PERMITTING CANNIBALIZATION
AND INTERCHANGEABILITY OF PARTS THEREBY REDUCING DOWN TIME AND CRASH
REQUISITIONS, AND BY FACILITATING SUPPORT IN COMBAT; THAT THE USE OF
FORMAL ADVERTISING WOULD DEFEAT THE OBJECTIVES OF STANDARDIZATION OF THE
ITEM BY INTRODUCING DIFFERENT MAKES AND MODELS, COMPONENT PARTS,
TECHNICAL LITERATURE, AND MAINTENANCE PROCEDURES INTO THE SUPPLY SYSTEM;
AND THAT COMPETITIVE PROCUREMENT WILL BE UTILIZED FOR REQUIREMENTS FOR
OTHER THAN VIET NAM.
IN EACH CASE, PRIOR TO AWARD, THE CONTRACTING OFFICER MADE A COMPLETE
PRICE ANALYSIS, AS REQUIRED BY ASPR 3-811. IN EACH ANALYSIS, PRIOR
PROCUREMENTS OF THE ITEMS WERE CITED; COMPARISON OF PREVIOUS PRICES WAS
MADE; FACTORS ACCOUNTING FOR PRICE INCREASES WERE DISCUSSED; AND IT
WAS DETERMINED THAT ALL OF THE PRICES QUOTED BY THE FIRMS SOLICITED,
WHICH WERE BELOW THE ESTIMATED PRICES REFLECTED ON THE MIPRS, WERE FAIR
AND REASONABLE. FURTHER, IT WAS DISCLOSED THAT THE TOWMOTOR 4,000-
POUND CAPACITY FORKLIFT TRUCK, THE BAKER DIVISION 6,000-POUND CAPACITY
FORKLIFT TRUCK, THE HYSTER CO. 15,000-POUND CAPACITY FORKLIFT TRUCK, AND
THE UNITED TRACTOR WAREHOUSE TRACTOR HAD PREVIOUSLY BEEN APPROVED OR
SELECTED FOR STANDARDIZATION.
WITH REGARD TO RFP NO. DSA-4-66-4740, WHICH INVOLVES PROCUREMENT OF
200 HYSTER CO. FORKLIFT TRUCKS AND A ONE-YEAR SUPPLY OF SUPPORT PARTS,
THE PRICE ANALYSIS SHOWS THAT THE AWARD PRICE OF $9,460 PER UNIT IS 14.5
PERCENT HIGHER THAN THE PREVIOUS CONTRACT PRICE OF $8,259 PER UNIT;
THAT THE OTHER PRICES QUOTED IN CONNECTION WITH THE JANUARY 1964
PROCUREMENT OF THE ITEM RANGED FROM $8,796 TO $11,550 PER UNIT; AND
THAT THE CURRENT AWARD PRICE IS 32.6 PERCENT LOWER THAN HYSTER'S
CONSUMER PRICE FOR SIMILAR EQUIPMENT WITH THE OPERATIONAL EQUIPMENT
REQUIRED BY THE RFP. THE RECORD FURTHER SHOWS THAT, AS WITH THE OTHER
EQUIPMENT INVOLVED, SUBSTANTIAL QUANTITIES OF THE HYSTER EQUIPMENT HAD
PREVIOUSLY BEEN DELIVERED TO VIET NAM, A FACTOR WHICH INFLUENCED THE
SELECTION OF THE ITEM FOR STANDARDIZATION.
CONCERNING THE DOD STANDARDIZATION PROGRAM FOR SUCH EQUIPMENT UNDER
THE DIRECTION OF THE NAVY SUPPLY SYSTEM COMMAND, THE CONTRACTING OFFICER
MAKES THE FOLLOWING COMMENTS:
"* * * THIS PROGRAM IS CONCERNED WITH THE DEVELOPMENT OF A
SPECIFICATION FOR FORKLIFT TRUCKS TO MEET THE NEEDS OF ALL THE MILITARY
SERVICES AND IS NOT PERTINENT TO STANDARDIZATION OF PARTICULAR MAKES AND
MODELS OF EQUIPMENT FOR THE PURPOSE OF ACHIEVING INTERCHANGEABILITY OF
PARTS AND REDUCTION OF STOCKS OF PARTS TO SUPPORT AN OVERSEAS THEATER OF
OPERATIONS. IT SHOULD BE NOTED THAT THIS EQUIPMENT IS BASICALLY
COMMERCIAL MODIFIED TO MEET THE REQUIREMENTS OF MILITARY SPECIFICATIONS
AND THAT PARAGRAPH 10/A) (4) OF THE REQUESTS FOR APPROVAL OF THE
DETERMINATIONS AND FINDINGS STATES DEVELOPMENT OF MILITARY DESIGN IS
UNECONOMICAL.'
THE STATUTORY AUTHORITY PURSUANT TO WHICH THE CONTRACTS IN QUESTION
WERE NEGOTIATED, 10 U.S.C. 2304/A) (13), PROVIDES THAT THE HEAD OF A
DEFENSE AGENCY MAY NEGOTIATE A CONTRACT IF THE PURCHASE OR CONTRACT IS
FOR EQUIPMENT THAT HE DETERMINES TO BE TECHNICAL EQUIPMENT WHOSE
STANDARDIZATION AND THE INTERCHANGEABILITY OF WHOSE PARTS ARE NECESSARY
IN THE PUBLIC INTEREST AND WHOSE PROCUREMENT BY NEGOTIATION IS NECESSARY
TO ASSURE THAT STANDARDIZATION AND INTERCHANGEABILITY. THERE IS NO
PROVISION IN THE STATUTE RESTRICTING THE EXERCISE OF SUCH AUTHORITY TO
WARTIME, AND UNDER 10 U.S.C. 2310, THE DETERMINATION TO NEGOTIATE IS
FINAL.
ASPR 3-213.2, WHICH SETS FORTH THE POLICIES AND PROCEDURES TO BE
EMPLOYED IN PROCUREMENTS NEGOTIATED UNDER 10 U.S.C. 2304/A) (13), READS,
IN PART, AS FOLLOWS:
"3-213.2 APPLICATION
"/A) THE AUTHORITY OF THIS PARAGRAPH 3-213 MAY BE USED FOR PROCURING
ADDITIONAL UNITS AND REPLACEMENT ITEMS OF SPECIFIED MAKES AND MODELS OF
TECHNICAL EQUIPMENT AND PARTS, WHICH ARE ITHER: (I) FOR TACTICAL USE,
OR (II) AN INTEGRAL PART OF OR USED IN DIRECT SUPPORT OF A WEAPONS
SYSTEM, OR (III) FOR USE IN ALASKA, HAWAII OR OUTSIDE THE REMAINDER OF
THE UNITED STATES, IN THEATERS OF OPERATIONS, ON BOARD NAVAL VESSELS, OR
AT ADVANCED OR DETACHED BASES; AND WHICH HAVE BEEN ADOPTED AS STANDARD
ITEMS OF SUPPLY IN ACCORDANCE WITH PROCEDURES PRESCRIBED BY EACH
RESPECTIVE DEPARTMENT. A CURRENT OR RECURRING PROCUREMENT REQUIREMENT
FOR THE ITEM SHALL BE PRESENT.
"/B) THIS AUTHORITY WOULD APPLY, FOR EXAMPLE, WHENEVER IT IS
NECESSARY:
(I) TO LIMIT THE VARIETY AND QUANTITY OF PARTS THAT MUST BE CARRIED
IN STOCK;
(II) TO MAKE POSSIBLE, BY STANDARDIZATION, THE AVAILABILITY OF PARTS
THAT MAY BE INTERCHANGED AMONG ITEMS OF DAMAGED EQUIPMENT DURING COMBAT
OR OTHER EMERGENCY;
(III) TO PROCURE FROM SELECTED SUPPLIERS TECHNICAL EQUIPMENT WHICH IS
AVAILABLE FROM A NUMBER OF SUPPLIERS BUT WHICH WOULD HAVE SUCH VARYING
PERFORMANCE OR DESIGN CHARACTERISTICS (NOTWITHSTANDING DETAILED
SPECIFICATIONS AND RIGID INSPECTION) AS WOULD PREVENT STANDARDIZATION
AND INTERCHANGEABILITY OF PARTS; OR
(IV) TO PROVIDE A UNIFORM CONFIGURATION OF EQUIPMENT FOR MATERIEL
PROGRAMMED FOR A MILITARY ASSISTANCE PROGRAM (MAP) COUNTRY OR
COUNTRIES.'
BASED ON THE FACTS REPORTED AS THE BASIS FOR THE D ANF F-S, WE MUST
CONCLUDE THAT THE PROCUREMENTS IN QUESTION HAVE BEEN CONDUCTED IN
ACCORDANCE WITH THE LAW AND THE REGULATIONS AND WE WOULD NOT BE
JUSTIFIED IN QUESTIONING EITHER THE STANDARDIZATION ACTION OR THE
NEGOTIATION WITH ONLY ONE SOURCE IN EACH INSTANCE. FURTHER, THE
PROCUREMENTS NOT BEING COMPETITIVE, THERE IS NO REQUIREMENT THAT THE
SMALL BUSINESS STATUS OF OTHER PRODUCERS BE CONSIDERED IN MAKING AWARD.
IN VIEW OF THE LIMITATION OF THE STANDARDIZATION PROCEDURE IN CONNECTION
WITH THESE PROCUREMENTS TO THE NEEDS FOR VIET NAM, THERE IS NO STIFLING
OF COMPETITION INSOFAR AS THE NEEDS OF OTHER AREAS ARE CONCERNED.
CONCERNING THE MATTER OF ISSUANCE OF STOP ORDERS UNDER THE CONTRACTS
PENDING OUR DECISION ON YOUR PROTEST, YOU ARE ADVISED THAT OUR OFFICE,
HAS CONSISTENTLY TAKEN THE POSITION THAT WE CANNOT REQUIRE THE
CONTRACTING AGENCY TO CAUSE WORK TO BE STOPPED UNTIL WE HAVE DECIDED THE
PROPRIETY OF THE AWARD, ALTHOUGH WE BELIEVE THAT SUCH ACTION SHOULD BE
TAKEN WHERE THE GOVERNMENT'S INTERESTS WOULD NOT THEREBY BE PREJUDICED.
WE MUST, HOWEVER, RECOGNIZE THAT THE PROCURING AGENCY, HAVING THE
RESPONSIBILITY FOR SEEING THAT OPERATIONAL PROGRAMS OF THE GOVERNMEN
ARE NOT UNREASONABLY DELAYED BY LACK OF NECESSARY SUPPLIES, IS IN A
BETTER POSITION TO DETERMINE THE EXTENT TO WHICH THE INTERESTS OF THE
GOVERNMENT WOULD BE PREJUDICED. WHEN A PROTEST IS RECEIVED AFTER AWARD,
AND IT REASONABLY APPEARS THAT THE AWARD MAY BE HELD TO BE INVALID AND A
DELAY IN RECEIVING THE SUPPLIES OR SERVICES IS NOT PREJUDICIAL TO THE
GOVERNMENT'S INTEREST, THE CONTRACTING OFFICER WILL
FREQUENTLY SEEK A MUTUAL AGREEMENT WITH THE SUCCESSFUL BIDDER TO STO
WORK ON A NO COST BASIS, OR SERVE NOTICE THAT NO COST SHOULD BE INCURRED
PENDING RESOLUTION OF THE PROTEST. IN THIS CASE, THE URGENCY OF THE
PROCUREMENTS APPEARS TO INDICATE THAT ISSUANCE OF STOP WORK ORDERS MAY
WELL HAVE BEEN CONTRARY TO THE GOVERNMENT'S INTERESTS, AND WE THEREFORE
SEE NO BASIS TO QUESTION AN ADMINISTRATIVE DECISION NOT TO ISSUE SUCH
ORDERS.
B-159209, JUN. 23, 1966
TO MR. EUGENE DREXLER:
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 24, 1966,
SUBMITTED AS ATTORNEY IN SUPPORT OF THE PROTEST FILED BY ZINGER
CONSTRUCTION COMPANY, INC., VALLEY STREAM, NEW YORK (HEREAFTER ZINGER),
AGAINST AWARD OF CONTRACT TO BALABAN-GORDON COMPANY, INC., NEW YORK, NEW
YORK (HEREAFTER BALABAN-GORDON), THE LOW BIDDER UNDER INVITATION FOR
BIDS NO. NBY 70515, ISSUED BY THE EASTERN DIVISION, NAVAL FACILITIES
ENGINEERING COMMAND.
THE INVITATION, ISSUED APRIL 7, 1966, SOLICITED BIDS FOR THE
REHABILITATION OF VARIOUS BUILDINGS AT THE MILITARY OCEAN TERMINAL,
UNITED STATES NAVAL SUPPLY CENTER, BAYONNE, NEW JERSEY. BID OPENING WAS
SCHEDULED FOR 3:00 P.M., E.D.T., MAY 10, 1966. ON MAY 5, 1966, BY
NOTICE NO. 1, THE BID OPENING WAS POSTPONED TO 3:00 P.M., E.D.T., MAY
13, 1966. ALL FIRMS THAT HAD DRAWN COPIES OF THE PLANS AND
SPECIFICATIONS WERE ADVISED OF THE CHANGE BY TELEGRAM AND BID OPENING
WAS HELD ON MAY 13, 1966, AT THE SCHEDULED TIME. AWARD WAS MADE TO
BALABAN-GORDON ON MAY 24, 1966.
IT WAS PROVIDED IN THE INVITATION THAT BIDDERS SUBMIT A BID GUARANTEE
IN THE SUM OF 20 PERCENT OF THE BID PRICE, EXECUTED ON STANDARD FORM 24,
JUNE 1964 EDITION, A BID BOND FORM PRESCRIBED BY THE GENERAL SERVICES
ADMINISTRATION AND EXTENSIVELY USED IN GOVERNMENT CONTRACTING. ON THIS
FORM, UNDER SECTION TITLE "BID IDENTIFICATION," THERE ARE THREE BLANK
BOXES. ONE IS FOR THE BID DATE; THE SECOND FOR THE INVITATION NUMBER;
AND THE THIRD FOR THE SUBJECT OF THE INVITATION, I.E. * "CONSTRUCTION,
AND THE THIRD FOR THE SUBJECT OF THE INVITATION, I.E. : "CONSTRUCTION,"
,SUPPLIES," OR "SERVICES.' BALABAN-GORDON INSERTED THE DATE "5/10/66" IN
THE BOX FOR BID DATE; ,SPEC. NBY 70515" IN THE BOX FOR INVITATION
NUMBER; AND, THE TERM "CONSTRUCTION" IN THE BOX FOR THE SUBJECT OF THE
INVITATION. YOU HAVE ASSERTED IN BEHALF OF ZINGER, THE SECOND LOW
BIDDER, THAT BY INSERTING "5/10/66, AS THE BID DATE INSTEAD OF "5/13/66"
(THE DATE TO WHICH BID OPENING WAS POSTPONED) THE BID BOND CONTAINS A
DEFECT SO SUBSTANTIAL AS TO OPERATE AS A FAILURE TO SUBMIT ANY BOND.
YOU CONTEND THAT BALABAN-GORDON DID NOT PROPERLY IDENTIFY THE BID AND,
THEREFORE, THE CONTRACTING OFFICER COULD NOT ACCEPT THE BID WITHOUT
OBTAINING THE CONSENT OF BALABAN-GORDON AS TO WHAT BID THEY INTENDED TO
COVER BY THE BOND. YOU FURTHER CONTEND THAT BALABAN-GORDON MADE A
MISTAKE WITH RESPECT TO PARAGRAPH 3 ON THE BID FORM 21 BY THEIR STATING
THAT THEY HAD NOT PARTICIPATED IN CONTRACTS CONTAINING THE EQUAL
OPPORTUNITY CLAUSE ORIGINALLY CONTAINED IN EXECUTIVE ORDER NO. 10925.
AS TO THIS LATTER CONTENTION NOTHING IN THE RECORD INDICATES
BALABAN-GORDON MISTAKENLY FILLED IN THE PARAGRAPH, NOR HAVE YOU
INTRODUCED ANY EVIDENCE SUBSTANTIATING YOUR BELIEF. NAVAL FACILITIES
ENGINEERING COMMAND INFORMS US THEIR RECORDS INDICATE THAT
BALABAN-GORDON HAS NOT PERFORMED ANY WORK FOR THE COMMAND SINCE 1954.
EXECUTIVE ORDER NO. 10925 IS DATED MARCH 6, 1961. THEREFORE, WE HAVE
NO BASIS TO QUESTION THE REPRESENTATION, AND WE CONCLUDE THERE WAS NO
ERROR.
WITH REGARD TO YOUR FORMER CONTENTION, WE CANNOT AGREE THAT THE
DEFECT IN THE BID DATE WAS SO SUBSTANTIAL AS TO OPERATE AS A FAILURE TO
SUBMIT ANY BOND.
STANDARD FORM 24 IS A BID GUARANTEE TO INDEMNIFY THE GOVERNMENT IN
THE EVENT THE SUCCESSFUL BIDDER REFUSES TO EXECUTE A CONTRACT UPON
ACCEPTANCE OF ITS BID. WHEN A BOND IS SUBMITTED IN THE CORRECT AMOUNT
REQUIRED BY THE INVITATION FOR BIDS, BUT WHICH CONTAINS THE POSTPONED
BID DATE UNDER THE BID IDENTIFICATION SECTION INSTEAD OF THE BID DATE TO
WHICH THE OPENING WAS POSTPONED, THE TEST TO BE APPLIED IS WHETHER THE
GOVERNMENT COULD ENFORCE AGAINST THE SURETY THE BOND AS SUBMITTED IN THE
EVENT THE LOW BIDDER REFUSED TO PROCEED FURTHER WITH PERFORMANCE ONCE
AWARD WAS MADE. CF. 39 COMP. GEN. 60 (1959).
THE SURETY ON THE BALABAN-GORDON BOND IS A PAID OR COMMERCIAL SURETY.
WITH RESPECT TO THE REQUISITES, CONTENTS AND VALIDITY OF A BOND ISSUED
BY SUCH A SURETY THE FOLLOWING IS QUOTED FROM 12 AM. JUR. 2D BONDS,
SECTION 4 (PAGE 408):
"* * * DEFECTS, OR ERRORS IN THE CONTENT OR EXECUTION OF A BOND, IF
NOT OF A MATERIAL CHARACTER, WILL NOT ORDINARILY CHANGE THE VALIDITY OR
EFFECT OF THE INSTRUMENT * * * .'
ONE OF THE CASES CITED AS AN EXAMPLE OF A CASE CONTAINING A DEFECT
NOT OF A MATERIAL CHARACTER IS IN RE MOFFITTS ESTATE, 75 A.2D 698
(1950). IN THAT CASE THE VALIDITY OF A BOND WAS NOT AFFECTED BY THE
FACT THAT IT WAS ERRONEOUSLY DATED. THE COURT, ON PAGE 699, STATED:
"* * * THE FACT THAT A BOND IS ERRONEOUSLY DATED, OR BEARS NO DATE AT
ALL WILL NOT AFFECT ITS VALIDITY IF COMPLIANCE HAS BEEN MADE WITH OTHER
ESSENTIALS NECESSARY TO GIVE IT A LEGAL AND BINDING EFFECT.'
THIS PRINCIPLE, WHILE APPLYING TO A DIFFERENT FACT SITUATION, IS
APPLICABLE HERE. THE DATE IN QUESTION IN THE MOFFITT CASE WAS NOT PART
OF THE IDENTIFICATION SECTION OF THE BOND FORM, BUT WAS THE DATE OF
EXECUTION OF THE BOND ITSELF. IN THE PRESENT CASE, THE PURPOSE OF THE
BOX "BID DATE" IS ONLY TO IDENTIFY THE BID COVERED BY THE BOND. IT DOES
NOT REPRESENT THE COMMENCEMENT OF THE TIME LIMITATION FOR WHICH THE
SURETY MAY BE LIABLE UNDER THE BOND. THE BOND AND THE BID MUST BE
CONSIDERED TOGETHER, AND THE EFFECTIVE DATE OF THE SURETY'S LIABILITY
WOULD NOT BEGIN UNTIL THE ACCEPTANCE OF THE BID BY THE GOVERNMENT.
GENERALLY, THE GOVERNMENT HAS A SIXTY-DAY PERIOD AFTER OPENING TO ACCEPT
A BID AND THE DATE OF OPENING IS DETERMINED BY THE INVITATION, NOT BY
THE BOND.
THEREFORE, SINCE THE DATE OF OPENING WAS POSTPONED, THE FACT THAT THE
ORIGINAL DATE WAS NOT CHANGED ON THE BID BOND FORM WOULD NOT AFFECT THE
PERIOD OF LIABILITY WHICH THE SURETY ORIGINALLY CONTRACTED FOR.
BY PLACING A BID DATE "5/10/66" IN THE BID IDENTIFICATION INSTEAD OF
"5/13/66" BALABAN-GORDON DID NOT FAIL TO IDENTIFY WHAT BID WAS COVERED
BY THE BOND. NOT ONLY WAS THE BID IDENTIFICATION NUMBER CORRECT (WHICH
IS THE ONLY INVITATION OUTSTANDING WITH THAT NUMBER FOR THE
REHABILITATION OF BUILDINGS AT THE MILITARY OCEAN TERMINAL), BUT ALSO
THE TERM "CONSTRUCTION" WAS PRESENT. THE DATE "5/10/66" ACTUALLY DOES
ASSIST IN IDENTIFYING THE BID AS THAT WAS THE DATE ORIGINALLY SCHEDULED
FOR OPENING.
THEREFORE, IT DOES NOT APPEAR THAT THERE COULD ARISE ANY CONFUSION AS
TO THE BID COVERED BY THE BOND. THE BOND SUBMITTED WITH THE
BALABAN-GORDON BID IS ENFORCEABLE BY THE GOVERNMENT AGAINST THE SURETY,
AND ACCORDINGLY, YOUR PROTEST IS DENIED.
B-159296, JUN. 23, 1966
TO THE PECK IRON AND METAL CO., INC. :
REFERENCE IS MADE TO YOUR LETTER OF JUNE 14, 1966, INQUIRING WHETHER
UNITED STATES CURRENCY AND/OR OBLIGATIONS OF THE UNITED STATES, IN THE
FACE AMOUNT REQUIRED, MAY BE SUBSTITUTED IN LIEU OF PERFORMANCE BOND ON
STANDARD FORM 25 TO SATISFY THE REQUIREMENTS IN INVITATION FOR BIDS
(IFB) NO. 18-6068, ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, DEFENSE
SUPPLY AGENCY (DSA), BROOKLYN, NEW YORK.
THERE IS NO REQUIREMENT THAT OUR OFFICE RENDER AN ADVANCE DECISION TO
A PROSPECTIVE BIDDER, IN THE ABSENCE OF AN ACTUAL OR IMMINENT
CONTROVERSY RELATIVE TO A PARTICULAR PROCUREMENT. SINCE DSA IS
RESPONSIBLE FOR THE PREPARATION OF THE IFB, IT IS OUR VIEW THAT ANY
QUESTION YOU MAY HAVE CONCERNING THE REQUIREMENTS OF THE IFB SHOULD BE
PRESENTED DIRECTLY TO DSA IN THE FIRST INSTANCE.
FOR YOUR INFORMATION, HOWEVER, ARMED SERVICES PROCUREMENT REGULATION
10-202 PROVIDES AS OLLOWS:
"10-202 OPTIONS IN LIEU OF SURETIES. ANY ONE OR MORE OF THE TYPES OF
SECURITY LISTED BELOW MAY BE DEPOSITED BY THE CONTRACTOR IN LIEU OF
FURNISHING CORPORATE OR INDIVIDUAL SURETIES ON BONDS. ANY SUCH SECURITY
ACCEPTED BY THE CONTRACTING OFFICER SHALL BE PROMPTLY TURNED OVER TO THE
DISBURSING OFFICER CONCERNED FOR ARMY, NAVY, AND DEFENSE SUPPLY AGENCY
CONTRACTS, AND TO THE ACCOUNTING AND FINANCE OFFICER CONCERNED FOR AIR
FORCE CONTRACTS, EXCEPT THAT WHEN UNITED STATES BONDS OR NOTES ARE
INVOLVED, THEY SHALL BE DEPOSITED AS PROVIDED IN 10-202.1. ANY SUCH
SECURITY OR ITS EQUIVALENT SHALL BE RETURNED TO THE CONTRACTOR WHEN THE
OBLIGATION OF THE BOND HAS BY ITS TERMS CEASED.
"10-202.1 UNITED STATES BONDS OR NOTES. IN ACCORDANCE WITH THE
PROVISIONS OF THE ACT OF 24 FEBRUARY 1919, AS AMENDED (6 U.S.C. 15) AND
TREASURY DEPARTMENT CIRCULAR NO. 154 (6 FEBRUARY 1935), ANY PERSON
REQUIRED TO FURNISH A BOND HAS THE OPTION, IN LIEU OF FURNISHING SURETY
OR SURETIES THEREON, OF DEPOSITING UNITED STATES BONDS OR NOTES IN AN
AMOUNT EQUAL AT THEIR PAR VALUE TO THE PENAL SUM OF THE BOND, TOGETHER
WITH AN AGREEMENT AUTHORIZING THE COLLECTION OR SALE OF SUCH UNITED
STATES BONDS OR NOTES IN THE EVENT OF DEFAULT ON THE PENAL BOND. THE
CONTRACTING OFFICER MAY TURN THESE SECURITIES OVER TO THE DISBURSING
OFFICER OR ACCOUNTING AND FINANCE OFFICER AS PROVIDED IN 10-202, OR
DEPOSIT THEM WITH THE TREASURER OF THE UNITED STATES, A FEDERAL RESERVE
BANK, BRANCH FEDERAL RESERVE BANK HAVING THE REQUISITE FACILITIES, OR
OTHER DEPOSITARY DULY DESIGNATED FOR THAT PURPOSE BY THE SECRETARY OF
THE TREASURY, UNDER PROCEDURES PRESCRIBED BY THE DEPARTMENT CONCERNED
AND TREASURY DEPARTMENT CIRCULAR NO. 154. HOWEVER, THE CONTRACTING
OFFICER SHALL DEPOSIT WITH THE TREASURER OF THE UNITED STATES ALL SUCH
BONDS AND NOTES RECEIVED BY HIM IN THE DISTRICT OF COLUMBIA.
"10-202.2 CERTIFIED OR CASHIER'S CHECKS, BANK DRAFTS, MONEY ORDERS,
OR CURRENCY. ANY PERSON REQUIRED TO FURNISH A BOND HAS THE OPTION, IN
LIEU OF FURNISHING SURETY OR SURETIES THEREON, OF FURNISHING A CERTIFIED
CASHIER'S CHECK, A BANK DRAFT, A POST OFFICE MONEY ORDER, OR CURRENCY,
IN AN AMOUNT EQUAL TO THE PENAL SUM OF THE BOND, WHICH THE CONTRACTING
OFFICER WILL IMMEDIATELY DEPOSIT WITH THE APPROPRIATE ACTIVITY NAMED IN
10-202. CERTIFIED OR CASHIER'S CHECKS, BANK DRAFTS, OR POST OFFICE
MONEY ORDERS SHALL BE DRAWN TO THE ORDER OF THE TREASURER OF THE UNITED
STATES.'
YOUR ATTENTION IS DIRECTED TO THE FACT THAT THE SUBSTITUTION OF
CURRENCY OR THE OTHER DESIGNATED ASSETS WHICH IS PERMITTED BY THE
REGULATION IS NOT IN LIEU OF THE REQUIRED BOND, BUT MERELY AN
ALTERNATIVE TO THE FURNISHING OF A SURETY THEREON.
B-158190, JUN. 22, 1966
TO MR. JAMES V. GETZFRED:
WE ARE IN RECEIPT OF A LETTER FROM THE HONORABLE CLAIR A. CALLAN,
HOUSE OF REPRESENTATIVES, DATED JUNE 9, 1966, ENCLOSING YOUR LETTER OF
JUNE 7, 1966, WHICH REQUESTS FURTHER CONSIDERATION OF YOUR CLAIM FOR
BACK PAY AT THE RATE OF A PFS-2 POSITION, RATHER THAN AT THE RATE OF A
PFS-1 POSITION, FOR THE PERIOD NOVEMBER 26, 1960 TO NOVEMBER 2, 1961.
WHETHER YOU WERE ENTITLED TO CONVERSION UNDER EXECUTIVE ORDER NO.
10880 AND PROMOTION TO A POSITION IN LEVEL PFS-2 ARE MATTERS EXCLUSIVELY
WITHIN THE JURISDICTION OF THE POST OFFICE DEPARTMENT AND THE UNITED
STATES CIVIL SERVICE COMMISSION. SINCE NEITHER OF THOSE AGENCIES
AFFIRMATIVELY RULED THAT YOU WERE ENTITLED TO PROMOTION PRIOR TO YOUR
ACTUAL PROMOTION ON OCTOBER 28, 1961, AND SINCE, ON THE RECORD
PRESENTED, WE FIND NO BASIS FOR HOLDING THAT YOU WERE SEPARATED FROM THE
SERVICE DURING THE PERIOD IN QUESTION, THE GENERAL ACCOUNTING OFFICE IS
WITHOUT AUTHORITY TO ALLOW THE BACK PAY FOR THE PERIOD CLAIMED. PAYMENT
FOR THE PERIOD OF SEPARATION, JANUARY 7 TO JUNE 7, 1966, WAS AUTHORIZED
AT THE PFS-1 RATE BY GENERAL ACCOUNTING OFFICE SETTLEMENT OF MAY 19,
1964. ALSO, AS YOU POINT OUT IN YOUR LETTER OF JUNE 7, 1966, TO MR.
CALLAN,
ADDITIONAL COMPENSATION HAS BEEN AUTHORIZED TO YOU FOR THE PERIOD OF
DETAIL (APRIL TO NOVEMBER 1960) TO THE HIGHER RATE POSITION.
THEREFORE, OUR DECISION OF JANUARY 27, 1966, B-158190, DISALLOWING
YOUR CLAIM FOR ADDITIONAL COMPENSATION AT THE PFS-2 RATE FOR THE PERIOD
NOVEMBER 26, 1960 TO NOVEMBER 2, 1961, MUST BE SUSTAINED.
OUR DECISION IS BY LAW BINDING ON THE EXECUTIVE BRANCH OF THE
GOVERNMENT BUT DOES NOT PRECLUDE PROSECUTION BY YOU OF YOUR CASE IN THE
COURT OF CLAIMS.
B-158355, JUN. 22, 1966
TO ARKAY INTERNATIONAL, INC. :
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 14, 1966,
PROTESTING CANCELLATION OF INVITATION FOR BIDS NO. 36-600-65-427 BY THE
DEPARTMENT OF THE AIR FORCE. YOU REQUESTED THAT THE INVITATION BE
REINSTATED AND AWARD BE MADE TO THE LOWEST RESPONSIBLE BIDDER AND
SUGGESTED, IN THE ALTERNATIVE, IN EFFECT, THAT YOU SHOULD BE ALLOWED
SOME RELIEF FOR THE DAMAGES YOU HAVE INCURRED BY REASON OF THE
INVESTMENT OF TIME AND MONEY IN CONNECTION WITH YOUR BID AND ITS
EVALUATION. YOUR ATTORNEY, MR. MILTON FISHER, BY TELEPHONE CALL OF JUNE
9, 1966, HAS INFORMALLY REQUESTED THAT WE CONSIDER A DIRECTED
NEGOTIATION WITH YOUR COMPANY IN THE CIRCUMSTANCES.
THE INVITATION WAS ISSUED DECEMBER 9, 1964, AND BIDS WERE OPENED
JANUARY 8, 1965. BIDS WERE REQUESTED ON ITEM NO. 1, 298 EACH, AND ITEM
NO. 2, 527 EACH, MULTIMETER, AN/PSM6, WITH BOTH ITEMS SPECIFYING "FIRST
ARTICLES APPROVAL REQUIRED.' THE FOLLOWING BIDS WERE RECEIVED:
TABLE
A. S/B) INTERNATIONAL RESEARCH AND ENGINEERING CORP. $40,491
B. S/B AIMES ENGINEERING CO., INC. 86,770
C. S/B MED. ELECTRONICS, INC. 105,882
D. S/B ARKAY INTERNATIONAL, INC. 115,520
E. S/B BRUNO-NEW YORK INDUSTRIES, CORP. 123,511
BIDDERS A, B, AND C RECEIVED NEGATIVE FACILITY CAPABILITY REPORTS
(FCR) BECAUSE OF DEFICIENCIES IN CAPACITY OR CREDIT.
THE OFFICIAL RECORD IN THIS CASE SHOWS THAT THE INVITATION WAS
CANCELLED FOLLOWING CONSIDERATION OF PROTESTS RAISED CONCERNING ALLEGED
AMBIGUITIES AND DISCREPANCIES IN THE SPECIFICATIONS, INCLUDING THE
REQUIREMENT FOR FIRST ARTICLE TESTING OF A DUAL QUANTITY OF ITEMS. THE
PROTESTS CONSIDERED COVERED ITEMIZATION OF DEFICIENCIES IN THE TECHNICAL
ORDERS, TECHNICAL AMBIGUITIES IN SPECIFICATIONS, MISSTATED AND AMBIGUOUS
FIRST ARTICLE REQUIREMENTS, UNREALISTIC DELIVERY SCHEDULES, PROCUREMENT
ADMINISTRATIVE IRREGULARITIES BY THE PROCURING OFFICE IN NOT ADHERING TO
APPLICABLE PRINCIPLES IMPOSED BY THE ARMED SERVICES PROCUREMENT
REGULATIONS (ASPR) AND POSSIBLE PATENT INFRINGEMENTS IN THE USE OF THE
CIRCUIT BREAKER REQUIRED. IT WAS THE ADMINISTRATIVE CONCLUSION THAT AT
BEST THE SPECIFICATIONS WERE SUBJECT TO VARIOUS INTERPRETATIONS AND IT
WAS AGREED THAT REVISION TO MORE PRECISE AND DEFINITIVE REQUIREMENTS
SHOULD BE ACCOMPLISHED TO AVOID DIFFICULTIES DURING CONTRACTOR
PERFORMANCE. HENCE, THE SPECIFICATIONS WERE ADMINISTRATIVELY CONSIDERED
TO BE INADEQUATE AND AMBIGUOUS AND THE INVITATION WAS CANCELLED.
WHILE IT IS THE OPINION OF THIS OFFICE, BASED UPON THE SUBMITTED
RECORD, THAT THE SPECIFICATIONS WERE NEITHER SUFFICIENTLY INADEQUATE NOR
AMBIGUOUS AS TO REQUIRE THE CANCELLATION OF THE INVITATION IT APPEARS
THAT THE CONTRACTING OFFICER AND THE PROCUREMENT AGENCY WERE ACTING IN
GOOD FAITH IN THE BELIEF THAT CORRECTED SPECIFICATIONS WOULD IMPROVE THE
INVITATION AND RESULT IN EVALUATION OF FACTORS APPLICABLE TO ALL
BIDDERS, WHEN THEY ACTED UNDER THE AUTHORITY OF ASPR 2-404.1 (B) (I),
WHICH PROVIDES FOR THE CANCELLATION OF AN INVITATION FOR BIDS CONTAINING
INADEQUATE OR AMBIGUOUS SPECIFICATIONS. IT FURTHER APPEARS THAT IN THE
INTERIM PERIOD OF TIME SPENT IN ANALYZING PROTESTS AGAINST AN AWARD AND
CONDUCTING FACILITIES CAPABILITY SURVEYS OF THE BIDDERS, THE FUNDS WHICH
HAD BEEN AVAILABLE TO COVER THE AIR FORCE REQUIREMENTS HAD BEEN
WITHDRAWN, THAT THE NUMBER OF ITEMS ADVERTISED WERE NO LONGER REQUIRED
AND THAT FUTURE REQUIREMENTS WOULD BE INCLUDED IN THE NEXT REQUIREMENTS
COMPUTATION. THE REDUCED NEEDS APPLICABLE TO THE CANCELLED PROCUREMENTS
ARE FOR 339 MULTIMETERS OF WHICH A PURCHASE REQUESTED FOR 125 HAS BEEN
RECEIVED AT SAN ANTONIO AIR MATERIEL AREA, (SAAMA). THE PURCHASE
REQUEST FOR 214, THE REMAINDER OF THE 339 PRESENTLY REQUIRED IS IN
PROCESS AT MIDDLETOWN AIR MATERIEL AREA, WHICH STATIONS PHASE-OUT,
HAVING HAD SOME PROBABLE BEARING ON THE HANDLING OF THE PROCUREMENT AT
ISSUE, IS NOW BEING COMPLETED. IT APPEARS, THEREFORE, THAT THE CHANGED
REQUIREMENTS FURTHER SUPPORT AUTHORIZATION FOR CANCELLATION OF THE
INVITATION AS PROVIDED IN ASPR 2-404.1/B) (III). IT IS ADMINISTRATIVELY
REPORTED THAT WHEN THE PURCHASE REQUEST FOR 214 MULTIMETERS AND THE
SPECIFICATION CHANGES ARE RECEIVED AT SAAMA THE NEW PROCUREMENT PLAN
WILL BE FORMULATED AND SUBSEQUENT SOLICITATION FOR THESE REQUIREMENTS
WILL BE SENT TO YOUR COMPANY.
IT CONSISTENTLY HAS BEEN HELD BY THE ACCOUNTING OFFICERS OF THE
GOVERNMENT AND BY THE COURTS THAT THE QUESTION OF REJECTING ALL BIDS AND
READVERTISING IS A MATTER OF ADMINISTRATIVE DISCRETION. ALSO, IT HAS
BEEN HELD THAT A REQUEST FOR BIDS DOES NOT IMPORT ANY OBLIGATION TO
ACCEPT ANY OF THE BIDS RECEIVED, INCLUDING THE LOWEST CORRECT BIDS. 17
COMP. GEN. 554; 26 ID. 49; PERKINS V. LUKENS STEEL CO., 310 U.S. 113;
O-BRIEN V. CARNEY, 6 F.SUPP. 761; COLORADO PAVING COMPANY V. MURPHY, 78
F. 28. IN THE CIRCUMSTANCES WE FIND THAT THE ACTION TAKEN IN CANCELLING
THE INVITATION WAS NOT ARBITRARY OR AN ABUSE OF THE ADMINISTRATIVE
POWERS AND THAT THE REDUCED REQUIREMENT FOR THE PROCUREMENT PROVIDED A
FURTHER REASON FOR CANCELLATION AND MAKES IMPROPER A DIRECTED AWARD TO
ANY BIDDER AT THIS TIME. UNITED STATES V. BROOKRIDGE FARM, 111 F.2D
461.
ACCORDINGLY, WE MUST DENY YOUR REQUEST FOR REINSTATEMENT OF THE
ORIGINAL INVITATION.
REGARDING YOUR SUGGESTION THAT THE AIR FORCE BE DIRECTED TO NEGOTIATE
WITH YOUR COMPANY IN FUTURE PROCUREMENTS OF THIS ITEM, APPARENTLY
BECAUSE THE INVITATION WAS CANCELLED, WE MUST ADVISE THAT THESE
CIRCUMSTANCES ARE NOT INCLUDED IN ASPR 3-100, ET SEQ., WHICH PROVIDES
AUTHORITY FOR PROCUREMENT BY NEGOTIATION AND THE LIMITATIONS THEREON.
REGARDING YOUR SUGGESTION OF ENTITLEMENT TO DAMAGES FOR TIME AND
MONEY INVESTED UNDERGOING FACILITY CAPABILITY REVIEW, THE COURTS HAVE
HELD THAT AN UNSUCCESSFUL BIDDER IS NOT ENTITLED TO RECOVER DAMAGES FOR
FAILURE TO CONTRACT WITH HIM. HEYER PRODUCTS COMPANY, INC. V. UNITED
STATES, 140 F.SUPP. 409, AND AUTHORITIES CITED THEREIN.
THEREFORE, THERE IS NO LEGAL BASIS UPON WHICH YOUR SUGGESTED CLAIM
FOR DAMAGES COULD BE ALLOWED.
B-158707, JUN. 22, 1966
TO DISBURSING OFFICER, RETIRED PAY DEPARTMENT, U.S. NAVY FINANCE
CENTER:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 16, 1966
(XO:HWM:WR 7220/755 21 66), REQUESTING AN ADVANCE DECISION AS TO WHETHER
ALVIN A. RABE, 755 21 66, ETCS, USNFR, F6, MADE A TIMELY AND VALID
ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10
U.S.C. 1431-1446. YOUR REQUEST WAS FORWARDED TO THIS OFFICE BY SECOND
ENDORSEMENT OF THE COMPTROLLER OF THE NAVY, DATED MARCH 10, 1966, HAVING
BEEN ASSIGNED SUBMISSION NUMBER DO-N-898 BY THE DEPARTMENT OF DEFENSE
MILITARY PAY AND ALLOWANCE COMMITTEE.
THE MATERIAL CONTAINED IN THE FILE, INCLUDING A COPY OF THE DUPLICATE
OF THE MEMBER'S NAVPERS 591 FORM TRANSMITTED TO THIS OFFICE BY YOUR
LETTER DATED MAY 3, 1966, INDICATES THAT MR. RABE WAS TRANSFERRED TO THE
FLEET RESERVE ON NOVEMBER 29, 1964, AFTER SERVING ON ACTIVE DUTY FOR
MORE THAN 20 YEARS. AT THE TIME HIS RETAINER PAY ACCOUNT WAS
ESTABLISHED, THE RECORDS IN YOUR OFFICE AND THOSE OF THE U.S. NAVY
FAMILY ALLOWANCE ACTIVITY, CONTAINED NO INFORMATION THAT AN ELECTION
UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN HAD BEEN MADE BY
HIM. AS A RESULT IT WAS PRESUMED THAT NO ELECTION HAD BEEN INTENDED AND
HIS RETAINER PAY ACCOUNT WAS ESTABLISHED WITHOUT ANNUITY DEDUCTIONS
BEING MADE. HOWEVER, BY LETTER DATED DECEMBER 29, 1964, HE ADVISED YOUR
OFFICE THAT NO DEDUCTIONS FOR THE ANNUITY WERE BEING MADE AND REQUESTED
VERIFICATION OF HIS PARTICIPATION IN THE PROGRAM, CONTENDING THAT HE HAD
CHOSEN OPTIONS 2 AND 4. LATER, UPON REQUEST BY YOUR OFFICE, HE
SUBMITTED A COPY OF THE TRIPLICATE OF THE NAVPERS 591 FORM DATED
NOVEMBER 22, 1962, RETAINED BY HIM, AS CONFIRMATION OF HIS ELECTION. IT
IS REPORTED THAT HE COMPLETED 18 YEARS OF SERVICE FOR BASIC PAY PURPOSES
ON THE LATTER DATE.
YOU STATE THAT UPON RECEIPT OF THE TRIPLICATE COPY OF THE 591 FORM,
DEDUCTIONS WERE ESTABLISHED ON A TENTATIVE BASIS AND OTHER APPROPRIATE
NAVAL ACTIVITIES WERE REQUESTED TO MAKE A THOROUGH SEARCH OF THEIR
RECORDS FOR THE ORIGINAL AND THE SERVICE COPY (DUPLICATE) OF THE
ELECTION FORM SIGNED BY THE MEMBER. ALTHOUGH THE ORIGINAL OF THE
DOCUMENT WAS NEVER LOCATED, THE SERVICE COPY WAS FOUND IN THE MEMBER'S
SERVICE FILE AT THE NAVAL RESERVE MANPOWER CENTER. BOTH THE SERVICE
COPY AND THE TRIPLICATE RETAINED BY THE MEMBER ARE ALIKE IN EVERY
RESPECT, EACH APPEARING TO BE COMPLETE AND REGULAR ON ITS FACE, BUT
NEITHER COPY WAS SIGNED BY AN ATTESTING OFFICER.
ON THE BASIS OF THESE FACTS, A DETERMINATION IS REQUESTED AS TO
WHETHER THE DUPLICATE COPY CONSTITUTES ADEQUATE EVIDENCE OF A VALID AND
TIMELY ELECTION. YOU REFER TO OUR DECISION OF NOVEMBER 3, 1959, 39
COMP. GEN. 349, WHEREIN IT IS STATED THAT ANY SIGNED COPY OF THE
ELECTION FORM CONSTITUTES PRIMARY EVIDENCE TO ESTABLISH THE FACT OF AN
ELECTION OF OPTIONS.
SINCE THE DUPLICATE COPY WAS FOUND IN THE PLACE IT NORMALLY WOULD
HAVE BEEN LOCATED IF THE ORIGINAL HAD BEEN FILED WITH THE PROPER NAVAL
AUTHORITIES, SUCH COPY MAY BE ACCEPTED AS ESTABLISHING THE FACTS STATED
ON ITS FACE IN THE ABSENCE OF EVIDENCE TO THE CONTRARY. NO INFORMATION
HAS BEEN FURNISHED TENDING TO SHOW THAT THE ORIGINAL ELECTION FORM WAS
NOT ACTUALLY SIGNED BY THE MEMBER WHEN HE SIGNED THE DUPLICATE COPY AND
SINCE NOVEMBER 22, 1962, THE DATE APPEARING ON THE DUPLICATE, WAS THE
LAST DAY ON WHICH MR. RABE COULD MAKE A VALID ELECTION, WE WILL CONSIDER
SUCH COPY AS BEING SUFFICIENT EVIDENCE TO ESTABLISH THAT THE ORIGINAL OF
THE ELECTION FORM TIMELY AND IRRETRIEVABLY PASSED BEYOND HIS CONTROL ON
THAT DATE INTO THE POSSESSION OF THE APPROPRIATE NAVAL OFFICIALS.
COMPARE 44 COMP. GEN. 229.
ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE AND PROPER
MONTHLY DEDUCTIONS FROM THE MEMBER'S RETAINER PAY SHOULD BE CONTINUED.
B-158900, JUN. 22, 1966
TO AMERICAN NICKEL ALLOY MANUFACTURING CORP. :
REFERENCE IS MADE TO YOUR LETTER OF MAY 25, 1966, WHEREIN YOU REFER
TO YOUR DECISION OF MAY 9, 1966, B-158900, IN WHICH WE SUSTAINED THE
ACTION OF OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM FOR $450,
REPRESENTING A PORTION OF THE AMOUNT PAID BY YOU TO THE DEFENSE SURPLUS
SALES OFFICE, NORFOLK, VIRGINIA, FOR CERTAIN PROPERTY PURCHASED UNDER
SALES CONTRACT NO. DSA-25-S-7252.
YOU CLAIM AN ADJUSTMENT IN THE SALES PRICE FOR SHORT WEIGHT OF SEVEN
ARTICLES OF NICKEL ALLOY DUCT WELDMENT PURCHASED BY YOU AND YOU CONTEND
THAT PARAGRAPH 8 (ADJUSTMENT FOR VARIATION IN QUANTITY OR WEIGHT) OF THE
GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION PROVIDES FOR SUCH AN
ADJUSTMENT.
AS STATED IN OUR DECISION, THE EXPRESS DISCLAIMER OF WARRANTY IN THE
INVITATION PRECLUDES A CLAIM BASED ON MISDESCRIPTION IN THE ABSENCE OF
EVIDENCE OF BAD FAITH OR FRAUD ON THE PART OF THE GOVERNMENT.
THEREFORE, REGARDLESS OF THE WEIGHT OF THE MATERIAL, NO ADJUSTMENT OF
THE PURCHASE PRICE MAY BE GRANTED ON ACCOUNT OF ANY ERROR IN THE
DESCRIPTION OF THE MATERIAL. ALSO, IN THE DECISION WE STATED THAT THE
ADJUSTMENT FOR VARIATION IN QUANTITY OR WEIGHT CLAUSE, PARAGRAPH 8 OF
THE GENERAL SALE TERMS AND CONDITIONS, HAS NO APPLICATION TO YOUR CASE.
IT WAS POINTED OUT IN THE DECISION THAT THE ADJUSTMENT IN PARAGRAPH 8
APPLIES TO WEIGHT WHERE THE SALE IS OFFERED IN TERMS OF WEIGHT BUT
WHERE, AS HERE, THE SALE IS OFFERED IN TERMS OF QUANTITY (7 EA), THE
ADJUSTMENT APPLIES ONLY TO A VARIANCE IN QUANTITY.
IN YOUR LETTER REQUESTING REVIEW YOU STATE THAT PARAGRAPH 8 DOES NOT
SAY THAT AN ADJUSTMENT APPLIES TO WEIGHT ONLY WHERE A SALE IS OFFERED IN
TERMS OF WEIGHT, AND THAT IT APPLIES TO A VARIANCE IN QUANTITY ONLY IF
THE SALE IS IN THE TERM OF QUANTITY (7 EA). YOU ALSO STATE THAT WHILE
OUR INTERPRETATION MAY EVEN BE THE MEANING OF THE WORDING OF PARAGRAPH
8, YOUR FIRM ACTED BY THE WORDING ALONE WHICH, YOU ALLEGE, IS THAT AN
ADJUSTMENT WILL BE MADE ON THE BASIS OF QUANTITY OR WEIGHT. FINALLY,
YOU STATE THAT WHILE IT IS TRUE THAT SEVEN UNITS WERE OFFERED AND THAT
YOU RECEIVED SEVEN UNITS, THE FACT NEVERTHELESS REMAINS THAT THE
INVITATION ALSO SHOWED AN ESTIMATED TOTAL WEIGHT WHICH, YOU CONTEND,
FALLS UNDER THE "GUARANTEED DESCRIPTION CLAUSE," AND THAT YOUR FIRM
RECEIVED ONLY APPROXIMATELY ONE-HALF OF THIS WEIGHT.
OUR INTERPRETATION OF THE PROVISIONS OF PARAGRAPH 8 IS NOT WITHOUT
ANY FOUNDATION. YOUR ATTENTION IS AGAIN INVITED TO THE CASE OF WESTERN
NON-FERROUS METALS CORP. V. UNITED STATES, 192 F.SUPP. 774, A CASE
INVOLVING A SALE OF SURPLUS PROPERTY ON A UNIT BASIS AND INVOLVING A
PROVISION SIMILAR TO PARAGRAPH 8. IN THAT CASE THE COURT HELD THE
PROVISION INAPPLICABLE AS A BASIS FOR RECOVERY, STATING THAT THE
ESTIMATED WEIGHT IN THE SALES INVITATION WAS OFFERED ONLY AS PART OF THE
GOVERNMENT'S DESCRIPTION OF THE PROPERTY AND NOT AS A MEASURE OF
QUANTITY, AND THAT THE UNIT OF SALE WAS "EACH" OR BY THE PIECE, RATHER
THAN BY WEIGHT. SINCE THE NUMBER OF PIECES OFFERED WAS ACTUALLY
DELIVERED, RECOVERY WAS DENIED. ANOTHER CASE INVOLVING A SALE OF
SURPLUS PROPERTY ON A UNIT BASIS AND INVOLVING A PROVISION SIMILAR TO
PARAGRAPH 8 WAS THAT OF PAUL VARKELL AND HYMAN NUTKIS V. UNITED STATES,
167 CT.CL. 522 (1964). IN THAT CASE THE UNITED STATES COURT OF CLAIMS
HELD THAT THE PLAINTIFF WAS NOT ENTITLED TO RELIEF BECAUSE THE ROLLS OF
FILM, WHICH HE HAD PURCHASED ON A PER ROLL BASIS, CONTAINED 100 FEET OF
FILM RATHER THAN 400 FEET OF FILM AS STATED IN THE INVITATION.
IN REGARD TO YOUR STATEMENT THAT THE ESTIMATED TOTAL WEIGHT SHOWN IN
THIS INVITATION FOR ITEM 77 IS COVERED BY THE "GUARANTEED DESCRIPTION
CLAUSE," YOUR ATTENTION IS INVITED TO THAT PART OF SUB-PARAGRAPH (2) OF
THE CLAUSE WHICH PROVIDES THAT "ESTIMATES AS TO "WEIGHT" OF PROPERTY
OFFERED FOR SALE BY THE "UNIT" ARE NOT GUARANTEED.'
B-159213, JUN. 22, 1966
TO AUTHORIZED CERTIFYING OFFICER, SMALL BUSINESS ADMINISTRATION:
THIS IS IN REPLY TO YOUR LETTER OF MAY 17, 1966, ASKING OUR OFFICE TO
ADVISE WHETHER A VOUCHER FOR TRAVEL AND TRANSPORTATION EXPENSES IN FAVOR
OF MR. JOHN J. SHERIDAN, AN EMPLOYEE OF SMALL BUSINESS ADMINISTRATION
(SBA) MAY BE CERTIFIED FOR PAYMENT IN THE AMOUNT OF $258.50. THIS
VOUCHER INCLUDES THE SUM OF $158.50 REPRESENTING THE COST OF MR.
SHERIDAN'S TRAVEL AND TRANSPORTATION FROM ST. THOMAS, VIRGIN ISLANDS, TO
WASHINGTON, D.C., AND RETURN DURING JUNE 1965 TO INQUIRE ABOUT HIS
HOUSEHOLD EFFECTS WHICH WAS DISALLOWED, PLUS $100 CLAIMED FOR AUTHORIZED
LOCAL TRAVEL IN THE VIRGIN ISLANDS WHICH WAS DEDUCTED BY THE AGENCY FROM
ANOTHER VOUCHER FOR APPLICATION TO MR. SHERIDAN'S INDEBTEDNESS OF
$159.45, THE COST OF HIS INITIAL TRAVEL TO THE VIRGIN ISLANDS FROM
WASHINGTON, D.C.
THE AGREEMENT BETWEEN MR. SHERIDAN AND THE SBA, DATED MAY 19, 1965,
PROVIDED THAT THE COSTS OF HIS TRAVEL AND TRANSPORTATION BETWEEN
WASHINGTON, D.C., AND THE VIRGIN ISLANDS INCIDENT TO A CHANGE IN DUTY
STATION WOULD BE BORNE BY THE AGENCY WITH THE UNDERSTANDING THAT HE
WOULD REMAIN THERE 24 MONTHS. IT WAS ALSO AGREED THAT UPON FAILURE TO
FULFILL THE AGREEMENT MR. SHERIDAN WOULD BE RESPONSIBLE FOR ANY TRAVEL
AND TRANSPORTATION EXPENSES IN CONNECTION WITH HIS TRANSFER.
IT IS REPORTED THAT MR. SHERIDAN DEPARTED WASHINGTON FOR THE VIRGIN
ISLANDS ON MAY 23, 1965, TO TAKE OVER THE POSITION OF PROGRAM MANAGER,
GRADE GS-13-9, WITH A PER ANNUM SALARY OF $15,435, AND A COST OF LIVING
ALLOWANCE OF 15 PERCENT, REDUCED TO 5 PERCENT ON JULY 1, 1965, WHICH WAS
TAX FREE. HE RETURNED TO WASHINGTON IN JUNE 1965, PURPORTEDLY TO
ARRANGE FOR MOVING HIS HOUSEHOLD EFFECTS FROM VIRGINIA TO THE VIRGIN
ISLANDS AND ASSERTED THAT THE PURPOSE OF THE TRIP HAD PREVIOUSLY BEEN
DISCUSSED IN WASHINGTON. THE RECORD INDICATES THAT MR. SHERIDAN ADVISED
OFFICIALS OF THE SBA WHILE IN WASHINGTON ON THIS TRIP OF THE HIGH COST
OF LIVING IN THE VIRGIN ISLANDS AND SOUGHT A POSITION WITH SBA AT
HEADQUARTERS. WE UNDERSTAND INFORMALLY THAT MR. SHERIDAN NEVER RETURNED
TO THE VIRGIN ISLANDS BUT REMAINED ON LEAVE WITHOUT PAY UNTIL A POSITION
BECAME AVAILABLE IN WASHINGTON TO WHICH HE WAS APPOINTED AROUND AUGUST
1, 1965.
IN A LETTER OF EXPLANATION ACCOMPANYING THE VOUCHER MR. SHERIDAN
EXPLAINED THAT HIS TAKE HOME PAY AMOUNTED TO $930 PLUS $64 COST OF
LIVING ALLOWANCE; ALSO, THAT SHELTER AND SUBSISTENCE EXPENSES AMOUNTED
TO $650-$700, LEAVING ONLY $344-$294 TO MEET OTHER EXPENSES. HE POINTED
OUT THAT FOOD AND UTILITIES WERE VERY EXPENSIVE. UNDER THE
CIRCUMSTANCES HE FELT THAT HIS RETURN WAS FOR REASONS BEYOND HIS
CONTROL.
THE AUTHORIZATION FOR TRAVEL, DATED JUNE 7, 1965, DIRECTING MR.
SHERIDAN'S TRAVEL FROM THE VIRGIN ISLANDS TO WASHINGTON ON OR ABOUT JUNE
19, 1965, WAS FOR THE STATED PURPOSE OF CARING FOR MATTERS RELATED TO
THE CHANGE OF HIS OFFICIAL DUTY STATION FROM WASHINGTON TO ST. THOMAS.
THE AUTHORIZING OFFICER, MR. ANTONIO YORDAN, STATES THAT MR. SHERIDAN
TOLD HIM THAT HE HAD BEEN AUTHORIZED BY THE WASHINGTON OFFICE TO RETURN
TO WASHINGTON ON JUNE 18 TO TAKE CARE OF SHIPPING HIS BELONGINGS TO THE
VIRGIN ISLANDS. THE AGENCY DISALLOWED MR. SHERIDAN'S CLAIM FOR THE
ABOVE TRAVEL APPARENTLY BECAUSE IT WAS NOT ESSENTIAL TRAVEL IN
CONNECTION WITH OFFICIAL BUSINESS. SECTION 1.4 STANDARDIZED GOVERNMENT
TRAVEL REGULATIONS; SEE 19 COMP. GEN. 658; B-57426, MAY 16, 1946;
B-121118, MARCH 22, 1955. HOWEVER, IT APPEARS THAT THE CLAIMANT NOW
DESIRES TO HAVE SUCH TRAVEL REGARDED AS A RETURN TO THE UNITED STATES
FOR REASONS BEYOND HIS CONTROL.
THE AGREEMENT PREVIOUSLY REFERRED TO WAS DRAWN IN ACCORDANCE WITH THE
PROVISIONS OF THE ACT OF AUGUST 2, 1946, AS AMENDED, 5 U.S.C. 73B-3,
WHICH AUTHORIZES THE PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES OF OF
EMPLOYEES IN HIS CATEGORY TO AND FROM POSTS OF DUTY OUTSIDE THE
CONTINENTAL UNITED STATES. THAT ACT PROVIDES IN PART:
"* * * THAT SUCH EXPENSES OF TRAVEL AND TRANSPORTATION TO POSTS OF
DUTY OUTSIDE THE CONTINENTAL UNITED STATES SHALL NOT BE ALLOWED UNLESS
AND UNTIL THE PERSON SELECTED FOR APPOINTMENT SHALL AGREE IN WRITING TO
REMAIN IN THE GOVERNMENT SERVICE FOR TWELVE MONTHS FOLLOWING HIS
APPOINTMENT, UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND
ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED AND IN CASE OF
VIOLATION OF SUCH AGREEMENT ANY MONEYS EXPENDED BY THE UNITED STATES ON
ACCOUNT OF SUCH TRAVEL AND TRANSPORTATION SHALL BE RECOVERABLE FROM THE
INDIVIDUAL CONCERNED AS A DEBT DUE THE UNITED STATES: AND PROVIDED
FURTHER, THAT EXPENSES OF RETURN TRAVEL AND TRANSPORTATION UPON
SEPARATION FROM THE SERVICE SHALL BE ALLOWED WHETHER SUCH SEPARATION IS
FOR THE PURPOSES OF THE GOVERNMENT OR FOR PERSONAL CONVENIENCE, BUT
SHALL NOT BE ALLOWED UNLESS SUCH PERSONS SELECTED FOR APPOINTMENT
OUTSIDE THE CONTINENTAL UNITED STATES SHALL HAVE SERVED FOR A MINIMUM
PERIOD OF NOT LESS THAN ONE NOR MORE THAN THREE YEARS PRESCRIBED IN
ADVANCE BY THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED OR UNLESS
SEPARATION IS FOR REASONS BEYOND THE CONTROL OF THE INDIVIDUAL AND
ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED. * * *"
IMPLEMENTING REGULATIONS IN SECTION 1.5 OF BUREAU OF THE BUDGET
CIRCULAR NO. A-56 ARE TO THE SAME EFFECT AS FOLLOWS:
"* * * IN CASE OF VIOLATION OF SUCH AGREEMENT ANY MONEY EXPENDED BY
THE UNITED STATES ON ACCOUNT OF THE TRAVEL AND TRANSPORTATION SHALL BE
RECOVERABLE FROM THE INDIVIDUAL CONCERNED AS A DEBT DUE THE UNITED
STATES. * * *"
FURTHERMORE, MR. SHERIDAN'S AGREEMENT WITH THE SBA CONTAINED THE
FOLLOWING PROVISION:
"IN THE EVENT YOU FAIL TO FULFILL THE TERMS OF THIS AGREEMENT, ANY
MONEY EXPENDED BY THE SBA ON ACCOUNT OF TRAVEL AND TRANSPORTATION SHALL
BE RECOVERABLE FROM YOU AS A DEBT OWED THE UNITED STATES. HOWEVER, IF
YOU ARE SEPARATED FROM THE SERVICE PRIOR TO COMPLETION OF THE PERIOD OF
SERVICE SPECIFIED ABOVE FOR REASONS BEYOND YOUR CONTROL AND ACCEPTABLE
TO THE SBA, THE COST OF TRAVEL AND TRANSPORTATION WILL BE PAID BY SBA.'
BY LETTER OF JUNE 6, 1966, THE DIRECTOR, OFFICE OF PERSONNEL, SBA HAS
ADVISED US THAT MR. SHERIDAN'S RETURN TO THE UNITED STATES WAS FOR HIS
OWN CONVENIENCE. MOREOVER, THERE HAS BEEN NO DETERMINATION BY THE SBA
THAT MR. SHERIDAN'S RETURN TO THE CONTINENTAL UNITED STATES WAS FOR
REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE AGENCY. IN VIEW
THEREOF, WE ARE REQUIRED TO HOLD THAT UNDER THE APPLICABLE LAW AND
REGULATIONS AS WELL AS THE TERMS OF MR. SHERIDAN'S AGREEMENT WITH THE
AGENCY HE IS NOT ENTITLED TO REIMBURSEMENT OF RETURN EXPENSES TO
WASHINGTON IN JUNE 1965, AND ALSO MUST BE HELD LIABLE FOR THE EXPENSES
OF HIS TRANSFER TO THE VIRGIN ISLANDS IN MAY 1965.
IN VIEW OF THE FOREGOING THE VOUCHER, WITH ACCOMPANYING PAPERS, IS
RETURNED HEREWITH AND MAY NOT BE CERTIFIED FOR PAYMENT.
B-154956, JUN. 21, 1966
TO ZERO MANUFACTURING CO:
IN YOUR LETTER OF MARCH 14, 1966, YOU PROTEST THE AWARD ON JANUARY
27, 1966, OF CONTRACT DSA 120-3082 FOR MEDICAL CHESTS TO THE LOW
OFFEROR, ROIS MANUFACTURING CO., PURSUANT TO REQUEST FOR PROPOSALS (RFP)
DSA 120-66-NEG-270, ISSUED BY DEFENSE PERSONNEL SUPPORT CENTER (DPSC), A
PURCHASING ACTIVITY OF THE DEFENSE SUPPLY AGENCY (DSA). YOU ALLEGED
THAT SINCE ROIS WAS OVER 9 MONTHS LATE IN THE DELIVERY OF MEDICAL CHESTS
AWARDED IN JULY OF 1964, UNDER DSA CONTRACT DSA 2-10320, AWARD OF THE
SUBJECT CONTRACT TO THAT FIRM IS VIOLATIVE OF "POLICIES SET DOWN BY THE
SECRETARY OF DEFENSE THAT CONTRACTS (NOT) BE AWARDED TO VENDORS WHO ARE
CURRENTLY LATE ON IVERY.' YOU ALSO ALLEGED IT IS UNFAIR TO LEGITIMATE
CONTRACTORS AND TO TAXPAYERS FOR THE GOVERNMENT TO HAVE AGREED TO PAY A
HIGHER PRICE UNDER THE SUBJECT CONTRACT FOR A QUANTITY OF ITEMS
SIMILAR TO THOSE CANCELLED OUT OF ROIS' 1964 CONTRACT, ALTHOUGH THE
QUANTITY UNDER THE SUBJECT CONTRACT IS GREATER THAN THAT UNDER THE
PREVIOUS ONE.
THE RECORD SHOWS THAT THE 2 LOWEST OF 4 OFFERS WHICH DPSC RECEIVED BY
SEPTEMBER 1, 1965, WERE AS FOLLOWS:
TABLE
ROIS ZERO
DESTINATION ORIGIN DESTINATION ONLY
$730,058.05 $705,050.10 $953,447.41
ALTHOUGH ROIS HAD OFFERED A SUBSTANTIALLY LOWER PRICE THAN YOU, A
FACILITY-CAPABILITY REPORT OF SEPTEMBER 23, 1965, DISCLOSED THE
FOLLOWING WEAKNESSES OF THAT FIRM:
1. THE PROPOSED CONTRACTOR'S DELINQUENT STATUS AND PAST HISTORY OF
POOR PERFORMANCE.
2. ANTICIPATED DELAY IN DELIVERY OF CONTRACT DSA 2-10320 FOR AN ITEM
IDENTICAL TO AN ITEM ON THE SUBJECT RFP.
3. LACK OF OPEN PRODUCTION CAPACITY.
4. LACK OF FIRM COMMITMENTS FOR NECESSARY RAW MATERIAL AND
CONTRACTING.
5. LACK OF ADEQUATE LEAD TIME TO MANUFACTURE TOOLING.
6. LACK OF FIRM COMMITMENTS FOR PROPOSED SUBCONTRACTED TOOLING.
IN VIEW OF THE FOREGOING, AWARD TO ROIS WAS NOT RECOMMENDED.
A SIMILAR SURVEY OF YOUR FIRM, PERFORMED ON OCTOBER 26, WAS FAVORABLE
IN ALL RESPECTS. HOWEVER, DUE TO THE WIDE DIFFERENCE IN THE PRICES
BETWEEN YOUR OFFER AND ROIS-, YOU WERE REQUESTED TO SUBMIT A COST
BREAKDOWN. BEFORE THE AUDIT OF THE BREAKDOWN WAS COMPLETED ON JANUARY
4, 1966, THE CONTRACTING OFFICER ORDERED A COMPLETE RESURVEY OF ROIS
BECAUSE OVER 2 MONTHS HAD ELAPSED SINCE THE SEPTEMBER SURVEY. THIS
SECOND FACILITY-CAPABILITY REPORT, DATED DECEMBER 16, 1965, OFFERED THE
FOLLOWING INFORMATION TO UP-DATE THAT CONTAINED IN THE PREVIOUS SURVEY:
"1. THE PROPOSED CONTRACTOR'S DELINQUENT STATUS AND PAST HISTORY OF
POOR PERFORMANCE. THIS SITUATION REMAINS ESSENTIALLY THE SAME AND IS
THE BASIS FOR A RECOMMENDATION OF NO AWARD ON THE SUBJECT RE-SURVEY.
"2. CONTRACT DSA 2-10320 FOR 22,194 EACH CHEST NO. 3. A CONTRACT
MODIFICATION EXTENDING THE DELIVERY SCHEDULE FOR A MONETARY
CONSIDERATION HAS BEEN ISSUED. A TOTAL OF 2,054 UNITS HAVE BEEN
DELIVERED AND THE CONTRACT IS PROCEEDING ON SCHEDULE. THE PRESENT
FORECASTED COMPLETION IS 7 FEBRUARY 1966 IN ACCORDANCE WITH SCHEDULE ON
THE MODIFICATION. THE ITEM ON THIS CONTRACT IS IDENTICAL TO ITEM 3 OF
THE SUBJECT R.F.P. INVOLVED IN THIS RE-SURVEY.
"3. THE LACK OF OPEN PRODUCTION CAPACITY SHOULD BE ALLEVIATED. THIS
DETERMINATION IS BASED UPON THE PROPOSED CONTRACTOR HAVING THE
CAPABILITY OF MEETING THE DELIVERY SCHEDULE AS SET FORTH IN THE ROIS
MFG. CO. PROPOSED DELIVERY SCHEDULE. THIS ROIS PROPOSED DELIVERY
SCHEDULE WAS REQUESTED BY DPSC-PMH-4UB, MR. HENRY SAGANICH, IN THE
REQUEST FOR SURVEY.
"4. THE PROPOSED CONTRACTOR NOW HAS SATISFACTORY FIRM COMMITMENTS
FROM SUPPLIERS FOR RAW MATERIALS AND FOR SUBCONTRACTING FROM PHILMONT
PRESSED STEEL INC.
"5. THE PROPOSED CONTRACTOR HAS COMPLETED ADDITIONAL TOOLING SINCE
THE ORIGINAL SURVEY AND THE LEAD TIME FOR COMPLETION OF ALL TOOLING IS
CONSIDERED TO BE ADEQUATE.
"6. THE PROPOSED CONTRACTOR NOW HAS SATISFACTORY FIRM COMMITMENTS
FOR THAT PORTION OF TOOLING THAT WOULD BE SUBCONTRACTED TO PHILMONT
PRESSED STEEL, INC.
"ALTHOUGH AS INDICATED ABOVE, THE BULK OF THE ORIGINAL CAUSES FOR A
NO-AWARD RECOMMENDATION HAVE BEEN ELIMINATED, THE COMPANY'S HISTORY OF
POOR PERFORMANCE AND CURRENT HIGH DELINQUENCY RATE REMAINS. AN ANALYSIS
OF THE CURRENT BACK LOG OF WORK INDICATES THAT AS OF THE DATE OF THIS
SURVEY OPEN CAPACITY SHOULD EXIST DURING THE PERIOD OF PERFORMANCE FOR
THE PROPOSED CONTRACT. A DETERRENT TO ACCEPTING SUCH AN ANALYSIS IS THE
FACTOR THAT THE COMPANY HAS RECENTLY RECEIVED WITHOUT BENEFIT OF
PRE-AWARD SURVEY, SEVERAL NEW CONTRACTS OF A HIGH PRIORITY. DCASR
EXPERIENCE WITH THIS COMPANY INDICATES THAT THE CONTRACTOR WILL ACCEPT
VIRTUALLY ANY AND ALL CONTRACTS WITH DISREGARD TO EXISTING OR FUTURE
DELIVERY REQUIREMENTS. PAST HISTORY OF PERFORMANCE PROHIBITS A
RECOMMENDATION OF ANYTHING EXCEPT-NO-AWARD IN SPITE OF THE COMPANY'S
TECHNICAL ABILITY TO PRODUCE THE REQUIREMENTS OF THE R.F.P.'
NEVERTHELESS, THE CONTRACTING OFFICER DETERMINED THAT SINCE ROIS HAD
IMPROVED ITS POSITION TO THE POINT OF POSSESSING THE PRESENT CAPACITY
AND TECHNICAL ABILITY TO DO AN ACCEPTABLE JOB, AND WAS DEMONSTRATING
SUFFICIENT TENACITY AND PERSEVERANCE AWARD SHOULD BE RECOMMENDED TO THAT
FIRM. ALL MEMBERS OF THE PURCHASING ACTIVITY'S CONTRACT REVIEW BOARD
CONCURRED WITH THE RECOMMENDATION, BUT DISCUSSIONS WITH DSA HEADQUARTERS
RESULTED IN A REQUEST BY THE CONTRACTING OFFICER FOR A PARTIAL RESURVEY
OF ROIS, WHICH WAS COMPLETED ON JANUARY 20, 1966. IT DISCLOSED THE
FOLLOWING INFORMATION:
"THE PROPOSED CONTRACTOR HAS RECENTLY MADE A CONCENTRATED EFFORT TO
RELIEVE THE HIGH RATE OF DELINQUENCIES THAT HAS EXISTED FOR THE PAST
SEVERAL MONTHS. AT THE TIME OF (THE SECOND) SURVEY DCRP-65-12-19, THE
CONTRACTOR HAD NINE (9) DELINQUENCIES THAT WERE CONSIDERED TO BE THE
FAULT OF THE CONTRACTOR. AT THE PRESENT TIME, THIS NUMBER IS DOWN TO
FOUR (4). IT IS THE OPINION OF THE INDUSTRIAL SPECIALIST THAT THE
PRESENT DELINQUENT CONTRACTS WILL BE CURED WITHIN A PERIOD OF TWO
MONTHS.
"THE CONTRACTOR IS PRESENTLY PERFORMING ON CONTRACT DSA 2-10320 FOR
22,194 EACH CHEST NO. 3. THIS IS AN IDENTICAL ITEM TO ITEM 3 OF THE
SUBJECT R.F.P. INVOLVED IN THIS RE-SURVEY. THE CONTRACTOR HAS FALLEN
SLIGHTLY BEHIND CONTRACT SCHEDULE ON CONTRACT DSA 2-10320. HOWEVER, THE
CONTRACTOR'S RATE OF PRODUCTION HAS BEEN GREATLY ACCELERATED DURING THE
FIRST TWO WEEKS OF JANUARY 1966 AND NOW IS WELL IN EXCESS OF THE RATE
THAT WOULD BE REQUIRED ON THE SUBJECT PROPOSED PROCUREMENT. COMPLETION
OF CONTRACT DSA 2-10320 IS NOW FORECASTED FOR 18 FEBRUARY 1966. ALL OF
THE OTHER INFORMATION CONTAINED IN SURVEY DCRP 65-12-19 STILL PERTAINS
WITH THE FOLLOWING EXCEPTION;
SINCE ONE MONTH HAS ELAPSED SINCE THE LAST SURVEY (DCRP-65-12-19),
ONE MONTH MUST BE ADDED TO THE CONTRACTOR'S PROPOSED DELIVERY SCHEDULE.
"THE PROPOSED CONTRACTOR IS CONSIDERED TO HAVE SUFFICIENT TECHNICAL
ABILITY, PERSONNEL, EXPERIENCE, ADEQUATE FACILITIES, REASONABLY FIRM
COMMITMENTS AND OPEN CAPACITY TO PERFORM IN ACCORDANCE WITH THE SUBJECT
R.F.P. AND THEREFORE FULL AWARD IS RECOMMENDED.'
ACCORDINGLY, THE CONTRACT WAS AWARDED TO ROIS.
WITH RESPECT TO THAT PART OF YOUR FIRST ALLEGATION WHICH NOTES THAT
ROIS IS OVER 9 MONTHS LATE ON CONTRACT DSA 2-10320, IT SHOULD BE NOTED
THAT IN OUR DECISION TO YOU OF MARCH 22, 1965, WE POINTED OUT THAT AN
8-MONTH DELIVERY EXTENSION WAS ANTICIPATED DUE TO GOVERNMENT-CAUSED
DELAYS. WE ARE ADVISED THAT FURTHER DELAYS WERE EXPERIENCED IN THE
CONTRACT, BUT THAT SINCE SOME WERE NOT EXCUSABLE, THE CONTRACT PRICE WAS
REDUCED BY APPROXIMATELY $11,000.
CONCERNING YOUR REFERENCE TO POLICIES OF THE SECRETARY OF DEFENSE
THAT CONTRACTS NOT BE AWARDED TO VENDORS WHO ARE CURRENTLY LATE ON
DELIVERY, WE ARE UNABLE TO FIND ANY POLICY WHICH CATEGORICALLY PROHIBITS
SUCH AWARDS. THE RELEVANT POLICIES WE HAVE FOUND ARE THE FOLLOWING
SECTIONS FROM THE ARMED SERVICES PROCUREMENT REGULATION (ASPR):
"1-902 GENERAL POLICY. PURCHASES SHALL BE MADE FROM, AND CONTRACTS
SHALL BE AWARDED TO, RESPONSIBLE PROSPECTIVE CONTRACTORS ONLY. A
RESPONSIBLE PROSPECTIVE CONTRACTOR IS ONE WHICH MEETS THE STANDARDS SET
FORTH IN 1-903.1 AND 1-903.2 * * *. WHILE IT IS IMPORTANT THAT
GOVERNMENT PURCHASES BE MADE AT THE LOWEST PRICE, THIS DOES NOT REQUIRE
AN AWARD TO A MARGINAL SUPPLIER SOLELY BECAUSE HE SUBMITS THE LOWEST BID
OR OFFER. * * *. RECENT UNSATISFACTORY PERFORMANCE, IN EITHER AN AWARD
TO A MARGINAL SUPPLIER SOLELY BECAUSE HE SUBMITS THE LOWEST BID OR
OFFER. * * *.
RECENT UNSATISFACTORY PERFORMANCE, IN EITHER QUALITY OR TIMELINESS OF
DELIVERY, WHETHER OR NOT DEFAULT PROCEEDINGS WERE INSTITUTED, IS AN
EXAMPLE OF A PROBLEM WHICH THE CONTRACTING OFFICER MUST CONSIDER AND
RESOLVE AS TO ITS IMPACT ON THE CURRENT PROCUREMENT PRIOR TO MAKING AN
AFFIRMATIVE DETERMINATION OF RESPONSIBILITY. * * *
"1-903 MINIMUM STANDARDS FOR RESPONSIBLE PROSPECTIVE CONTRACTORS.
"1-903.1 GENERAL STANDARDS. EXCEPT AS OTHERWISE PROVIDED IN THIS
PARAGRAPH 1-903, A PROSPECTIVE CONTRACTOR MUST:
"/II) BE ABLE TO COMPLY WITH THE REQUIRED OR PROPOSED DELIVERY OR
PERFORMANCE SCHEDULE, TAKING INTO CONSIDERATION ALL EXISTING BUSINESS
COMMITMENTS, COMMERCIAL AS WELL AS GOVERNMENTAL (FOR SBA CERTIFICATES OF
COMPETENCY, SEE 1-705.4);
"/III) HAVE A SATISFACTORY RECORD OF PERFORMANCE (CONTRACTORS WHO ARE
SERIOUSLY DEFICIENT IN CURRENT CONTRACT PERFORMANCE, WHEN THE NUMBER OF
CONTRACTS AND THE EXTENT OF DEFICIENCY OF EACH ARE CONSIDERED, SHALL, IN
THE ABSENCE OF EVIDENCE TO THE CONTRARY OR CIRCUMSTANCES PROPERLY BEYOND
THE CONTROL OF THE CONTRACTOR, BE PRESUMED TO BE UNABLE TO MEET THIS
REQUIREMENT). PAST UNSATISFACTORY PERFORMANCE, DUE TO FAILURE TO APPLY
NECESSARY TENACITY OR PERSEVERANCE TO DO AN ACCEPTABLE JOB, SHALL BE
SUFFICIENT TO JUSTIFY A FINDING OF NONRESPONSIBILITY AND IN THE CASE OF
SMALL BUSINESS CONCERNS, SHALL NOT REQUIRE SUBMISSION OF THE CASE TO THE
SMALL BUSINESS ADMINISTRATION; SEE 1-705.4/A) (IV) AND 1-905.2;
"1-904 DETERMINATIONS OF RESPONSIBILITY AND NONRESPONSIBILITY.
"1-904.1 REQUIREMENT. EXCEPT AS OTHERWISE PROVIDED IN 1-904.2, NO
PURCHASE SHALL BE MADE FROM, AND NO CONTRACT SHALL BE AWARDED TO, ANY
PERSON OR FIRM UNLESS THE CONTRACTING OFFICER FIRST MAKES, SIGNS, AND
PLACES IN THE CONTRACT FILE, AN AFFIRMATIVE DETERMINATION THAT THE
PROSPECTIVE CONTRACTOR IS RESPONSIBLE WITHIN THE MEANING OF 1-902. * *
*. WHERE A BID OR OFFER ON WHICH AN AWARD WOULD OTHERWISE BE MADE IS
REJECTED BECAUSE THE PROSPECTIVE CONTRACTOR IS FOUND TO BE
NONRESPONSIBLE, A DETERMINATION OF NONRESPONSIBILITY SHALL BE MADE
SIGNED, AND PLACED IN THE FILE. * * *
"1-905.) GENERAL
"/B) MAXIMUM PRACTICABLE USE SHALL BE MADE OF CURRENTLY VALID
INFORMATION ON FILE OR WITHIN THE KNOWLEDGE OF PERSONNEL IN THE
DEPARTMENT OF DEFENSE.
"1-905.2 WHEN INFORMATION WILL BE OBTAINED. GENERALLY, INFORMATION
REGARDING THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR (INCLUDING
PRE-AWARD SURVEYS (SEE 1-905.4) WHEN DEEMED NECESSARY) SHALL BE OBTAINED
PROMPTLY AFTER BID OPENING OR RECEIPT OF PROPOSALS. * * *.
NOTWITHSTANDING THE FOREGOING, INFORMATION REGARDING FINANCIAL RESOURCES
(SEE 1-903.1 (I) ( AND PERFORMANCE CAPABILITY (SEE 1-903.1 (II) ( SHALL
BE OBTAINED ON AS CURRENT A BASIS AS FEASIBLE WITH RELATION TO THE DATE
OF CONTRACT AWARD.
"1-905.4 PRE-AWARD SURVEYS.
(A) GENERAL. A PRE-AWARD SURVEY IS AN EVALUATION BY A CONTRACT
ADMINISTRATION OFFICE OF A PROSPECTIVE CONTRACTOR'S CAPABILITY TO
PERFORM UNDER THE TERMS OF A PROPOSED CONTRACT. SUCH EVALUATION SHALL
BE USED BY THE CONTRACTING OFFICER IN DETERMINING THE PROSPECTIVE
CONTRACTOR'S RESPONSIBILITY. * * *"
FROM THE FACTS OF THIS CASE, IT APPEARS THAT THE CONTRACTING OFFICER
USED THE PRE-AWARD SURVEY, OBTAINED ON AS CURRENT A BASIS AS FEASIBLE,
TO DECIDE THAT ROIS HAD A RECORD OF PERFORMANCE WHICH, WHEN CONSIDERED
WITH ITS PRESENT CAPABILITY OF COMPLYING WITH THE PROPOSED DELIVERY
SCHEDULE, WAS SUFFICIENTLY SATISFACTORY TO WARRANT AN AFFIRMATIVE
DETERMINATION OF RESPONSIBILITY.
THE FOLLOWING OBSERVATION, MADE IN OUR DECISION TO YOU OF SEPTEMBER
22, 1964, IS APPLICABLE HERE:
"THIS OFFICE HAS CONSISTENTLY HELD THAT THE DETERMINATION OF A
BIDDER'S OVER-ALL RESPONSIBILITY IS PRIMARILY THAT OF THE CONTRACTING
AGENCY AND NOT OF THE GENERAL ACCOUNTING OFFICE. 38 COMP. GEN. 131;
33 ID. 549. WHETHER A BIDDER IS, OR IS NOT, CAPABLE OF PRODUCING IN
ACCORDANCE WITH CONTRACT REQUIREMENTS IS A QUESTION OF FACT, AND IN THE
ABSENCE OF EVIDENCE THAT THE DETERMINATION OF A BIDDER'S CAPABILITIES
WAS BASED ON ERROR, FRAUD OR FAVORITISM, THIS OFFICE WILL THEREFORE
ACCEPT THE FINDINGS OF THE CONTRACTING AGENCY. 40 COMP. GEN. 294.'
IN 39 COMP. GEN. 705, 711, WE FURTHER OBSERVED:
"* * * THE PROJECTION OF A BIDDER'S ABILITY TO PERFORM IF AWARDED A
CONTRACT IS OF NECESSITY A MATTER OF JUDGMENT.
WHILE SUCH JUDGMENT SHOULD BE BASED ON FACT AND SHOULD BE ARRIVED AT
IN GOOD FAITH, IT MUST PROPERLY BE LEFT LARGELY TO THE SOUND
ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICES INVOLVED, SINCE
THEY ARE IN THE BEST POSITION TO ASSESS RESPONSIBILITY, THEY MUST BEAR
THE MAJOR BRUNT OF ANY DIFFICULTIES EXPERIENCED BY REASON OF THE
CONTRACTOR'S LACK OF ABILITY, AND THEY MUST MAINTAIN THE DAY TO DAY
RELATIONS WITH THE CONTRACTOR ON BEHALF OF THE GOVERNMENT. FOR THESE
REASONS, IT WOULD BE UNREASONABLE TO SUPERIMPOSE THE JUDGMENT OF OUR
OFFICE OR ANY OTHER AGENCY OR GROUP ON THAT OF THE CONTRACTING
OFFICIALS. * * *"
WHETHER ROIS' RECORD OF PAST PERFORMANCE WAS SATISFACTORY ENOUGH TO
WARRANT A FINDING OF RESPONSIBILITY, OR TO PUT IT ANOTHER WAY, WAS SO
UNSATISFACTORY AS TO WARRANT A FINDING OF NONRESPONSIBILITY, WAS CLEARLY
A MATTER OF JUDGMENT. IN SUCH CIRCUMSTANCES, THIS OFFICE WILL NOT
INTERDICT THE GOOD FAITH ATTEMPT OF THE AGENCY TO SECURE A CONTRACT FROM
THAT SOURCE WHICH APPEARS TO REPRESENT THE LOWEST POSSIBLE COST FOR THE
GOODS OR SERVICES BEING PROCURED.
SINCE OUR REVIEW OF THE RECORD DISCLOSES NO EVIDENCE OF FRAUD, ERROR
OR FAVORITISM IN THE AGENCY'S DETERMINATION THAT ROIS IS A RESPONSIBLE
BIDDER, WE FIND NO BASIS TO OBJECT TO THAT DETERMINATION.
YOU ALSO ALLEGE THAT DSA HAS ACTED UNFAIRLY IN AWARDING AN ITEM IN
THE SUBJECT CONTRACT TO ROIS AT A HIGHER PRICE THAN ROIS OFFERED FOR A
SMALLER QUANTITY OF THE SAME APPROXIMATELY 1 1/2 YEARS AGO. IN VIEW OF
THE AMOUNT OF TIME WHICH HAS ELAPSED SINCE THE EARLIER AWARD, THE FACT
THAT BIDDERS WERE NOT THEN REQUIRED TO FURNISH THEIR OWN TOOLING, AS
THEY WERE IN THE SUBJECT PROCUREMENT, AND THE FACT THAT YOUR BID FOR THE
RESPECTIVE CONTRACT ITEMS SHOWED A UNIT DOLLAR INCREASE OF ALMOST THE
SAME MAGNITUDE AS ROIS-, WE ARE NOT DISPOSED TO ACCORD ANY SIGNIFICANCE
TO YOUR ALLEGATION.
B-154956, JUN. 21, 1966
TO DIRECTOR, DEFENSE SUPPLY AGENCY:
ENCLOSED IS A COPY OF OUR DECISION OF TODAY ON A PROTEST BY ZERO
MANUFACTURING CO. AGAINST THE AWARD OF CONTRACT DSA 120-3082 TO ROIS
MANUFACTURING CO. THIS MATTER WAS THE SUBJECT OF A REPORT FROM YOUR
ASSISTANT COUNSEL, DATED MAY 20, 1966, THE ENCLOSURES TO WHICH ARE
RETURNED.
IN VIEW OF THE ADMINISTRATIVE ERRORS CONNECTED WITH CONTRACT DSA
2-10320, ZERO'S CONTINUING ALLEGATIONS TO THE EFFECT THAT ANY SAVINGS
REPRESENTED BY ROIS' LOW OFFERS IS ILLUSORY BECAUSE OF THE REAL COST
INVOLVED IN CONTRACTOR DELAYS, AND THE APPARENT FACT THAT DSA HAS NO
CURRENT COST INFORMATION ON THE TOOLING ROIS WAS REQUIRED TO FURNISH, WE
THINK IT WOULD HAVE BEEN ESPECIALLY APPROPRIATE TO HAVE REQUIRED
CERTIFIED COST DATA FOR CONTRACT DSA 120-3082. WE ASSUME THAT FUTURE
PROCUREMENTS OF THESE ITEMS WILL BE ACCOMPLISHED BY FORMAL ADVERTISING.
HOWEVER, IF SUCH IS NOT THE CASE, WE SUGGEST THAT YOU CONSIDER
INSTRUCTING THE PURCHASING ACTIVITY TO ATTEMPT TO OBTAIN COST DATA FOR
THESE ITEMS.
B-157055, JUN. 21, 1966
TO THE SECRETARY OF THE ARMY:
ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO FREQUENCY ENGINEERING
LABORATORIES (FEL) CONCERNING ITS PROTEST AGAINST AWARD TO CALIFORNIA
COMPUTER PRODUCTS INC. UNDER INVITATION FOR BIDS (IFB) NO.
AMC/A/-36-038-65-1033 (WEI), ISSUED MAY 3, 1965, BY FRANKFORD ARSENAL,
PHILADELPHIA, PENNSYLVANIA. THE MATTER HAS BEEN THE SUBJECT OF REPORTS
DATED APRIL 28 AND MAY 31, 1966, FROM THE DIRECTOR OF PROCUREMENT AND
PRODUCTION, HEADQUARTERS, ARMY MATERIEL COMMAND.
THE PROCUREMENT WAS RESTRICTED TO SMALL BUSINESS CONCERNS, AND FIVE
BIDS WERE RECEIVED. THE THREE LOWEST BIDS, INCLUDING FEL'S BID, RANGING
FROM $677,309 TO $788,562 FOR THE FIRM QUANTITY OF 49 UNITS ON WHICH
BIDS WERE EVALUATED, HAVE BEEN ELIMINATED FROM CONSIDERATION FOR THE
REASONS SET FORTH IN OUR DECISION TO FEL. THE FOURTH BID, SUBMITTED BY
CALIFORNIA COMPUTER PRODUCTS INC. (CALIFORNIA COMPUTER), WAS IN THE
AMOUNT OF $1,107,748, AND THE FIFTH AND HIGHEST BID WAS $1,444,312.
ALTHOUGH THE CONTRACTING OFFICER CONSIDERS THAT AWARD TO CALIFORNIA
COMPUTER AT ITS ORIGINAL BID PRICE WOULD NOT BE IN THE BEST INTERESTS OF
THE GOVERNMENT, THE DIFFERENCE BETWEEN FEL'S BID AND CALIFORNIA
COMPUTER'S BID AMOUNTING TO 63.5 PERCENT, IT IS THE POSITION OF THE
CONTRACTING OFFICER, WITH WHICH HEADQUARTERS, ARMY MATERIEL COMMAND,
CONCURS, THAT AWARD MAY BE MADE TO CALIFORNIA COMPUTER AT A VOLUNTARILY
REDUCED BID PRICE WHICH COMPARES FAVORABLY WITH PRIOR PROCUREMENT PRICES
FOR THE SAME ITEM AND IS THUS REGARDED BY THE CONTRACTING OFFICER AS
REASONABLE. THE BASIS FOR SUCH POSITION IS STATED TO BE THE APPLICATION
OF THE RULE SET FORTH IN B-74013, MARCH 9, 1948, AND IN VARIOUS OTHER
DECISIONS OF OUR OFFICE, BASED UPON ALECH LEITMAN V. UNITED STATES, 104
CT.CL. 324, THAT THE GOVERNMENT MAY ACCEPT A VOLUNTARY REDUCTION OFFERED
BY THE LOWEST RESPONSIBLE AND RESPONSIVE BIDDER.
IN B-157411, NOVEMBER 4, 1965, 45 COMP. GEN.----, WE HELD THAT WHERE
ONLY ONE SMALL BUSINESS BIDDER SUBMITTED A BID IN RESPONSE TO A SMALL
BUSINESS RESTRICTED INVITATION, AND THE PRICE QUOTED WAS UNREASONABLE,
IT WAS IMPROPER TO NEGOTIATE WITH THAT BIDDER ALONE TO OBTAIN A
REASONABLE PRICE. THAT DECISION WAS BASED IN PART UPON DOUBT EXPRESSED
AS TO THE PROPRIETY OF THE SMALL BUSINESS RESTRICTION, BUT SOME OF THE
REASONING FOLLOWED IN THE DECISION AND THE DISCUSSION OF THE
APPLICABILITY OF LEITMAN, SUPRA, CONTAINED THEREIN, CREATES DOUBT AS TO
THE PROPRIETY (AT LEAST IN A SMALL BUSINESS RESTRICTED PROCUREMENT) OF
CONSIDERING EVEN A VOLUNTARY OFFER OF A PRICE REDUCTION BY A LOW BIDDER
WHERE IT APPEARS THAT IN THE ABSENCE OF SUCH REDUCTION ALL BIDS WOULD BE
REJECTED AS UNREASONABLE.
HOWEVER, IN VIEW OF THE FACT THAT WE ARE NOW ADVISED THAT THE FIFTH
BIDDER ON THE SUBJECT PROCUREMENT, CHRISTIAN PRECISION MANUFACTURING
COMPANY, IS CONSIDERED NONRESPONSIBLE FOR THE FALT EQUIPMENT, LEAVING
CALIFORNIA COMPUTER AS THE ONLY ONE OF THE FIVE BIDDERS NOW REGARDED AS
A RESPONSIBLE SOURCE, AND SINCE IT APPEARS THAT THE PRICE REDUCTION
OFFERED WAS ENTIRELY VOLUNTARY AND UNSOLICITED, WE WILL INTERPOSE NO
OBJECTION TO AWARD OF A CONTRACT TO CALIFORNIA COMPUTER ON ITS BID AS
REDUCED, IF IT BE DETERMINED BY YOUR AGENCY THAT SUCH ACTION WOULD BE IN
THE BEST INTEREST OF THE GOVERNMENT, IN THE LIGHT OF THE REPORTED
URGENCY OF THE NEED FOR THE ITEMS INVOLVED.
THE FILE FORWARDED WITH THE REPORT FROM HEADQUARTERS, ARMY MATERIEL
COMMAND, IS RETURNED.
B-157055, JUN. 21, 1966
TO FREQUENCY ENGINEERING LABORATORIES:
REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 22, 1966, AS
SUPPLEMENTED BY YOUR LETTER OF APRIL 13, PROTESTING AGAINST ANY AWARD BY
THE DEPARTMENT OF THE ARMY UNDER INVITATION FOR BIDS (IFB) NO.
AMC/A/-36-038-65-1033 (WEI), ISSUED MAY 3, 1965, BY FRANKFORD ARSENAL,
PHILADELPHIA, PENNSYLVANIA.
THE IFB SOLICITED BIDS, ON A TOTAL SMALL BUSINESS SET-ASIDE BASIS, TO
FURNISH A QUANTITY OF COMPUTER LOGIC TEST SET UNITS (FALT) FOR DELIVERY
TO ONE DESTINATION DURING THE PERIOD APRIL 1966 THROUGH JULY 1966, AND
FOR A QUANTITY OF PULSE GENERATORS FOR DELIVERY TO FOUR DESTINATIONS
DURING THE PERIOD NOVEMBER 1965 THROUGH MAY 1966. OF THE 13 FIRMS TO
WHICH COPIES OF THE IFB WERE DISTRIBUTED, 5 SUBMITTED BIDS, WHICH WERE
OPENED ON JUNE 4, 1965, AS SCHEDULED. BASED ON A FIRM REQUIREMENT FOR
49 FALT UNITS, THE EVALUATION RESULTS WERE AS FOLLOWS:
TABLE
BIDDER BID PRICE
FREQUENCY ENGINEERING LABORATORIES, INC. $ 677,309
TECHNICAL SUPPORT CO. 763,929
RODALE ELECTRONICS, INC. 788,562
CALIFORNIA COMPUTER PRODUCTS, INC. 1,107,748
CHRISTIAN PRECISION MFG. CO. 1,444,312
IN JUNE 1965, TECHNICAL SUPPORT COMPANY (TECHNICAL SUPPORT) PROTESTED
THAT YOU WERE NOT A RESPONSIBLE BIDDER, HAVING FAILED TO DELIVER
ACCEPTABLE FALT UNITS ON A CURRENT CONTRACT; THAT YOU WERE NOT CAPABLE
OF BUILDING UP TO AN ACCEPTABLE DELIVERY RATE WITHIN A REASONABLE TIME;
AND THAT THE POSSIBILITY OF A DEFAULT BY YOU WAS PREDICTED. IN JULY
1965, CALIFORNIA COMPUTER PRODUCTS, INC. (CALIFORNIA COMPUTER) PROTESTED
AWARD TO ANY OTHER BIDDER, STATING THAT NONE OF THE THREE LOWER BIDDERS,
OF WHICH YOU WERE LOWEST, HAD THE CAPABILITY OR TECHNICAL KNOWLEDGE TO
FABRICATE THE FALT AND THAT YOUR DELINQUENT PERFORMANCE OF YOUR CURRENT
CONTRACT DID NOT QUALIFY YOU TO RECEIVE ADDITIONAL ORDERS FOR FALT
EQUIPMENT. IN THE LIGHT OF AN ADMINISTRATIVE REPORT FROM THE DEPARTMENT
OF THE ARMY, WHICH INDICATED THAT ON THE BASIS OF A PRE-AWARD SURVEY YOU
HAD BEEN FOUND QUALIFIED TO PERFORM THE CONTRACT, THAT YOUR
DELINQUENCIES ON OTHER CONTRACTS HAD BEEN SATISFACTORILY EXPLAINED, AND
THAT DELIVERIES UNDER YOUR FALT CONTRACT (AWARDED TO YOU IN JUNE 1964)
WOULD BE COMPLETED PRIOR TO THE DELIVERY DATES SET FORTH IN THE IFB, WE
DENIED BOTH THE TECHNICAL SUPPORT AND CALIFORNIA COMPUTER PROTESTS IN
OUR DECISIONS B-157055, SEPTEMBER 2, 1965, STATING THAT THE RECORD DID
NOT AFFORD A LEGAL BASIS TO QUESTION THE ADMINISTRATIVE DETERMINATION
THAT YOU WERE A RESPONSIBLE BIDDER.
IN NOVEMBER 1965, TECHNICAL SUPPORT RENEWED ITS PROTEST AGAINST ANY
AWARD TO YOU, AGAIN CONTENDING THAT YOU WERE NOT RESPONSIBLE SINCE YOU
HAD YET TO DELIVER AN ACCEPTABLE FALT UNIT UNDER YOUR EXISTING CONTRACT,
AND ALLEGING THAT THE CONTRACTING OFFICER WAS POSTPONING THE AWARD UNTIL
YOU COMMENCED DELIVERY UNDER SUCH CONTRACT AND THERE WAS ASSURANCE THAT
YOU WOULD PERFORM SATISFACTORILY. UPON RECEIPT OF A SUPPLEMENTAL REPORT
FROM THE DEPARTMENT OF THE ARMY, WE ADVISED TECHNICAL SUPPORT IN OUR
DECISION, B-157055, MAY 13, 1966, OF THE VARIOUS FACTORS WHICH ACCOUNTED
FOR THE DELAY IN AWARD UNDER THE IFB. OUR DECISION READS, IN PERTINENT
PART, AS FOLLOWS:
"WHILE YOUR PROTEST OF JUNE 21 WAS AWAITING OUR DECISION,
POSTPONEMENT OF THE AWARD WAS PROPER IN ACCORDANCE WITH THE PROVISIONS
OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-407.9/B). AFTER OUR
DECISION WAS RELEASED ON SEPTEMBER 2, HOWEVER, THE CONTRACTING OFFICER
DELAYED AWARD ON THE BASIS OF KNOWLEDGE THAT FEL WAS ENCOUNTERING
PRODUCTION DIFFICULTIES UNDER ITS EXISTING FALT CONTRACT. THE
DETERMINATION TO POSTPONE AWARD RATHER THAN DECLARE FEL NONRESPONSIBLE
WAS MOTIVATED BY INDICATIONS THAT SOLUTION OF FEL'S PRODUCTION
DIFFICULTIES APPEARED IMMINENT; BY THE FACT THAT FEL'S BID WAS
$87,087.37 AND $111,288.83 LOWER THAN THE SECOND AND THIRD LOW BIDS,
RESPECTIVELY; AND BY PRELIMINARY DATA INDICATING THAT THERE WERE
SERIOUS QUESTIONS AS TO THE RESPONSIBILITY OF EITHER THE SECOND LOW
BIDDER (YOU) OR THE THIRD LOW BIDDER.
"WE ARE NOW ADVISED THAT ON THE BASIS OF A RESURVEY OF FEL, THE
CONTRACTING OFFICER HAS MADE A DETERMINATION THAT FEL IS NOT RESPONSIBLE
BECAUSE OF LACK OF TENACITY AND PERSEVERANCE IN FAILING TO ADHERE TO ITS
DELIVERY SCHEDULE UNDER ITS PRIOR CONTRACT. IN ADDITION, THE SMALL
BUSINESS ADMINISTRATION, UPON INQUIRY BY THE CONTRACTING OFFICER, HAS
RULED THAT FEL IS NO LONGER SMALL BUSINESS FOR THE PROCUREMENT IN
QUESTION. WE ARE ADVISED ALSO THAT THE CONTRACTING OFFICER DETERMINED
THAT YOU WERE NOT A RESPONSIBLE BIDDER AND THAT YOUR APPLICATION FOR A
CERTIFICATE OF COMPETENCY WAS DENIED BY SBA.
"SINCE BOTH YOU AND FEL HAVE BEEN ELIMINATED FROM CONSIDERATION FOR
AWARD UNDER THE IFB, YOUR PROTEST HAS BECOME ACADEMIC, AND NO FURTHER
DISCUSSION BY OUR OFFICE OF FEL'S RESPONSIBILITY, OR OF THE OTHER ISSUES
YOU HAVE RAISED, APPEARS NECESSARY.'
IN YOUR LETTER OF FEBRUARY 22, YOU REQUESTED THAT NO AWARD BE MADE
UNDER THE IFB. YOU STATED THAT THE SIZE STANDARD (500 EMPLOYEES)
ADMINISTRATIVELY APPLIED TO THE PROCUREMENT WAS IN ERROR; THAT YOU WERE
APPEALING THE MATTER TO THE SMALL BUSINESS ADMINISTRATION (SBA) ON THE
BASIS THAT A 750-EMPLOYEE SIZE STANDARD SHOULD APPLY; AND THAT THE
DELAY IN MAKING AWARD WAS PREJUDICIAL TO YOU, IN THAT YOUR STATUS HAD
CHANGED FROM SMALL BUSINESS TO LARGE BUSINESS (I.E., THE NUMBER OF YOUR
EMPLOYEES HAD INCREASED FROM FEWER THAN 500 TO MORE THAN 600) BETWEEN
THE TIME THE IFB WAS ISSUED AND THE DATE YOUR STATUS WAS CHALLENGED,
RESULTING IN AN ADVERSE SBA SIZE DETERMINATION ON FEBRUARY 1, 1966.
IN YOUR LETTER OF APRIL 13, YOU ENCLOSED A COPY OF SBA'S DECISION OF
APRIL 5, WHICH DENIED YOUR APPEAL FROM ITS FEBRUARY 1 DECISION AND WHICH
HELD THAT A 500-EMPLOYEE SIZE CLASSIFICATION APPLIED TO THE PROCUREMENT.
YOU NOW CONTEND THAT THE SET-ASIDE SHOULD BE WITHDRAWN AND THE
PROCUREMENT READVERTISED ON AN UNRESTRICTED BASIS. THE BASIS FOR SUCH
CONTENTION IS THAT THE $1,071,112 BID OF CALIFORNIA COMPUTER, THE LOW
ELIGIBLE BIDDER, NOW THAT YOU HAVE BEEN ELIMINATED FROM CONSIDERATION AS
A LARGE BUSINESS CONCERN AND THE SECOND AND THIRD LOW BIDDERS HAVE BEEN
DISQUALIFIED BY REASON OF SBA'S DENIAL OF A CERTIFICATION OF COMPETENCY
TO EITHER BIDDER, IS UNREASONABLE SINCE IT EXCEEDS YOUR LOW BID OF
$619,853 (EVALUATED BY THE PROCURING ACTIVITY AS $677,309) BY
APPROXIMATELY 70 PERCENT. FURTHER, YOU STATE THAT WHILE AN INCREASE IN
YOUR PRICE WOULD PROBABLY BE REQUIRED UPON REBIDDING, ANY NEW BID
SUBMITTED BY YOU WOULD BE SUBSTANTIALLY LOWER THAN CALIFORNIA COMPUTER'S
BID. YOU CITE SEVERAL DECISIONS OF OUR OFFICE UPHOLDING THE WITHDRAWAL
OF JOINT SMALL BUSINESS SET-ASIDES ON THE BASIS OF UNREASONABLE PRICES.
CONCERNING YOUR PERFORMANCE UNDER YOUR CURRENT FALT CONTRACT, YOU
MAKE THE FOLLOWING TATEMENTS:
"BOTH FREQUENCY ENGINEERING LABORATORIES AND CALIFORNIA COMPUTER HAVE
BEEN PRIOR SUPPLIERS OF FALT UNITS, BUT AN ENGINEERING CHANGE ORDER
COVERING AN ESSENTIAL PART OF THIS EQUIPMENT WAS MADE SUBSEQUENT TO THE
FURNISHING OF ALL UNITS MANUFACTURED BY CALIFORNIA COMPUTER. THIS
CHANGE ORDER REQUIRED A COMPREHENSIVE DEVELOPMENT PROGRAM BY FREQUENCY
ENGINEERING LABORATORIES OVER THE PAST EIGHTEEN MONTHS AND HAS AFFECTED
THE ORIGINAL DELIVERY SCHEDULE OF FALT UNITS NOW BEING MANUFACTURED BY
FREQUENCY ENGINEERING LABORATORIES. HOWEVER A RIGHT EXISTS FOR AN
EQUITABLE ADJUSTMENT EXTENDING SUCH ORIGINAL DELIVERY SCHEDULE AND
FREQUENCY ENGINEERING LABORATORIES IS NOW IN FULL CONFORMANCE WITH ITS
REVISED SCHEDULE, WHICH TAKES INTO ACCOUNT THE NECESSARY DELAYS CAUSED
BY THE ENGINEERING CHANGE ORDER.
"IN ADDITION, IT HAS BEEN REPORTED THAT THE PERFORMANCE OF FREQUENCY
ENGINEERING LABORATORIES UNDER CONTRACT DA-36-038-AMC 1030 (A) HAS BEEN
MADE A SUBJECT OF PROTESTS TO THE GENERAL ACCOUNTING OFFICE WITH THE
ALLEGATION THAT FREQUENCY ENGINEERING LABORATORIES IS NOT A RESPONSIVE
BIDDER TO SUBJECT IFB DUE TO NON DELIVERY UNDER CONTRACT DA 36-038-AMC-
1030 (A) IT IS THE POSITION OF FREQUENCY ENGINEERING LABORATORIES THAT
THE ENGINEERING CHANGES DIRECTED REPRESENT EXCUSABLE DELAY TO BE
NEGOTIATED UNDER AFOREMENTIONED CONTRACT.'
A SUPPLEMENTAL REPORT DATED MAY 31, 1966, FROM THE DEPARTMENT OF THE
ARMY SUBSTANTIATES THE PRIOR ADMINISTRATIVE REPORT PURSUANT TO WHICH OUR
DECISION B-157055 OF MAY 13, 1966, TO TECHNICAL SUPPORT WAS ISSUED, AND
SHOWS THAT OF THE 122 UNITS REQUIRED UNDER YOUR JUNE 1964 CONTRACT, AS
AMENDED, ONLY 15 UNITS HAVE BEEN DELIVERED BY YOU TO DATE. FURTHER, THE
PROCURING ACTIVITY STATES THAT WHILE THE DELAY IN AWARD AND IN MAKING
THE ULTIMATE DETERMINATION OF YOUR RESPONSIBILITY MAY HAVE CONSTITUTED
AN ERROR IN PROCUREMENT JUDGMENT, SUCH ACTION DID NOT WORK TO YOUR
PREJUDICE NOR WAS IT INTENDED TO FAVOR ANY BIDDER. ON THE CONTRARY, IT
IS REPORTED, YOU WERE GIVEN EVERY CONSIDERATION SINCE YOUR INTERESTS
COINCIDED WITH THE INTERESTS OF THE GOVERNMENT, AND HAD A PROMPT
DECISION BEEN MADE ON YOUR RESPONSIBILITY, A NEGATIVE DETERMINATION
WOULD HAVE RESULTED.
CONCERNING THE EFFECT OF THE ENGINEERING CHANGE ORDER UNDER YOUR JUNE
1964 CONTRACT, THE CONTRACTING OFFICER REPORTS THAT THE CHANGES REQUIRED
BY SUCH ORDER, WHICH HAS BEEN IDENTIFIED AS NO. F-43025, MODIFICATION
NO. 5, DATED JUNE 19, 1964, DID NOT AFFECT THE RECEIPT OF MATERIAL,
PRODUCTION AND DELIVERY. FURTHER, IT IS NOTED THAT NO REQUEST FOR A
TIME EXTENSION (REVISED DELIVERY SCHEDULE) WAS INCLUDED IN YOUR CLAIM
FOR EQUITABLE ADJUSTMENT BASED ON SAID ORDER, ALTHOUGH THE DEVELOPMENTAL
EFFORT ALLEGEDLY STARTED IN OCTOBER 1964, EIGHT MONTHS PRIOR TO JUNE
1965, THE TIME AGREEMENT WAS REACHED ON THE EQUITABLE ADJUSTMENT FOR THE
CHANGE ORDER.
AS TO YOUR STATEMENT THAT YOU ARE IN FULL CONFORMANCE ON YOUR REVISED
SCHEDULE, THE CONTRACTING OFFICER REPORTS THAT REQUESTS ADDRESSED TO YOU
FOR A REVISED DELIVERY SCHEDULE AND AN OFFER OF A PRICE CONCESSION FOR
EXTENSION OF THE DELIVERY SCHEDULE HAVE MET WITH NO RESPONSE FROM YOU;
THEREFORE, THERE IS NO MUTUALLY AGREED UPON REVISED DELIVERY SCHEDULE AT
THE PRESENT TIME. FURTHER, IT IS REPORTED THAT SINCE THE ISSUANCE OF
THE CONTRACTING OFFICER'S DETERMINATION OF FEBRUARY 16, 1966, THAT YOU
ARE NOT RESPONSIBLE FOR LACK OF TENACITY AND PERSEVERANCE IN FAILING TO
ADHERE TO THE DELIVERY SCHEDULE, YOUR PERFORMANCE HAS NOT IMPROVED SO AS
TO WARRANT A DETERMINATION THAT YOU ARE PRESENTLY A RESPONSIBLE BIDDER
FOR THE PROCUREMENT IN QUESTION.
REGARDING CALIFORNIA COMPUTER'S BID PRICE OF $1,107,748, THE
CONTRACTING OFFICER CONCURS WITH YOUR VIEW THAT AWARD AT SUCH PRICE
WOULD NOT BE IN THE BEST INTEREST OF THE GOVERNMENT. HOWEVER, IT IS
REPORTED THAT BY LETTER DATED JULY 2, 1965, CALIFORNIA COMPUTER,
VOLUNTARILY OFFERED TO REDUCE ITS UNIT PRICES SO THAT ITS BID PRICE FOR
THE FIRM QUANTITY OF 49 UNITS ANNOUNCED AT BID OPENING TO $788,078, OR
ONLY 16.3 PERCENT HIGHER THAN YOUR BID OF $677,309. CALIFORNIA COMPUTER
HAS SINCE EXTENDED THE PERIOD FOR ACCEPTANCE OF ITS BID AND, FOLLOWING
REJECTION OF ALL LOWER BIDS HAS REPEATED ITS PREVIOUS OFFER TO REDUCE
ITS ORIGINAL BID PRICES. BASED ON THE PRESENT FIRM REQUIREMENT FOR 62
FALT UNITS, ON WHICH YOUR BID WOULD BE EVALUATED AS $799,809, CALIFORNIA
COMPUTER'S PRICE OF $914,278 WOULD BE ONLY 14.3 PERCENT HIGHER.
FURTHER, THE CONTRACTING OFFICER ASSERTS THAT SINCE YOU HAVE BEEN
INEXCUSABLY DELINQUENT UNDER YOUR CURRENT FALT CONTRACT, HAVE NEVER
PRODUCED ACCEPTABLE FALTS IN PRODUCTION QUANTITIES, AND ACKNOWLEDGE THAT
YOUR PRICE WOULD BE INCREASED SHOULD THE PROCUREMENT BE READVERTISED,
YOUR LOW BID IS NOT A TRUE CRITERION OF WHAT A RESPONSIBLE LARGE
BUSINESS CONCERN WOULD BID ON THE FALT, NOR IS IT A GAGE OR MEASURE OF
WHETHER THE TOTAL SMALL BUSINESS SET-ASIDE HAS GENERATED A REASONABLE
PRICE. CONVERSELY, CALIFORNIA COMPUTER'S VOLUNTARILY REDUCED PRICE
($13,951.61 PER UNIT FOR THE 62 UNITS NOW REQUIRED) COMPARES FAVORABLY
WITH ITS UNIT PRICE OF $12,485 FOR 92 FALT UNITS UNDER A TOTAL SMALL
BUSINESS SET-ASIDE CONTRACT (NO. DA-36-038-ORD-22307) AWARDED TO
CALIFORNIA COMPUTER ON JUNE 29, 1962, APPROXIMATELY FOUR YEARS AGO, AND
WITH THE LOW UNIT PRICE OF $11,699 BID ON THE SAME PROCUREMENT BY
AMELCO, NC., WHO, AS A LARGE BUSINESS CONCERN, WAS NOT ELIGIBLE FOR
AWARD OF THE CONTRACT. IN THIS CONNECTION, THE CONTRACTING OFFICER
POINTS OUT THAT IF THE CURRENT PROCUREMENT NEED WERE 92 UNITS, AS IN THE
1962 PROCUREMENT, CALIFORNIA COMPUTER'S UNIT PRICE WOULD DROP TO
$11,968.47, REFLECTING A DECREASE IN ITS 1962 BID PRICE OF $516.53, OR 4
PERCENT. ACCORDINGLY, IT IS THE POSITION OF THE CONTRACTING OFFICER,
AND OF HEADQUARTERS, UNITED STATES ARMY MATERIEL COMMAND, THAT THE
VOLUNTARILY REDUCED PRICE OF CALIFORNIA COMPUTER IS REASONABLE; THAT
SINCE CALIFORNIA COMPUTER IS NOW THE LOWEST RESPONSIVE, RESPONSIBLE
BIDDER ACCEPTANCE OF CALIFORNIA COMPUTER'S REDUCED BID PRICE IS NOT
PREJUDICAL TO OTHER BIDDERS AND IS IN THE BEST INTERESTS OF THE
GOVERNMENT; AND, THEREFORE, CANCELLATION OF THE SET-ASIDE AND
READVERTISEMENT OF THE PROCUREMENT ON AN UNRESTRICTED
BASIS ARE NOT NECESSARY IN THE PUBLIC INTEREST. IN SUPPORT OF ITS
VIEW THAT THE VOLUNTARY REDUCTION IN BID OFFERED BY CALIFORNIA MAY BE
CONSIDERED, THE PROCURING ACTIVITY CITES LEITMAN V. UNITED STATES, 104
CT.CL. 324, AND OUR DECISIONS B-74013, MARCH 9, 1948; B-146229,
SEPTEMBER 1, 1961; 37 COMP. GEN. 251; 39 ID. 779; AND 42 ID. 170.
ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-407.1 PROVIDES FOR
AWARD OF ADVERTISED PROCUREMENTS WITHIN THE ACCEPTANCE PERIOD STATED IN
THE BID OR ANY EXTENSION THEREOF. ASPR 2-407.2 REQUIRES A DETERMINATION
BY THE CONTRACTING OFFICER, PRIOR TO AWARD, THAT THE PROSPECTIVE
CONTRACTOR IS RESPONSIBLE. ASPR 1-903.1, RELATING TO MINIMUM STANDARDS
FOR RESPONSIBLE PROSPECTIVE CONTRACTORS, REQUIRES THAT SUCH CONTRACTORS
HAVE A SATISFACTORY RECORD OF PERFORMANCE.
UNDER ASPR 1-903.1/III), PAST UNSATISFACTORY PERFORMANCE, DUE TO
FAILURE TO APPLY NECESSARY TENACITY OR PERSEVERANCE TO DO ANY ACCEPTABLE
JOB, SHALL BE SUFFICIENT TO JUSTIFY A FINDING OF NONRESPONSIBILITY AND
IN THE CASE OF SMALL BUSINESS CONCERNS SHALL NOT REQUIRE SUBMISSION OF
THE CASE TO THE SBA.
WHEN AN ADVERTISED PROCUREMENT IS SET ASIDE FOR AWARD TO SMALL
BUSINESS CONCERNS, THE SUCCESSFUL BIDDER MUST QUALIFY AS A SMALL
BUSINESS CONCERN BOTH AS A CONDITION FOR BIDDING AND AS A CONDITION FOR
AWARD. ACCORDINGLY, IF PRIOR TO AWARD THE APPARENTLY SUCCESSFUL
BIDDER'S STATUS AS A SMALL BUSINESS CONCERN IS CHALLENGED, EITHER BY
ANOTHER BIDDER WITHIN THE TIME LIMIT PRESCRIBED BY ASPR 1-703/B) (1) OR
BY THE CONTRACTING OFFICER, WHO IS NOT BOUND BY ANY SUCH TIME
LIMITATION, AND THE SBA DETERMINES THAT THE BIDDER IS NOT A SMALL
BUSINESS CONCERN FOR THE PURPOSE OF THE PARTICULAR PROCUREMENT, AWARD TO
SUCH BIDDER IS PRECLUDED.
BASED ON THE REPORTED FACTS, AND UNDER THE APPLICABLE STATUTES AND
REGULATIONS, YOU DO NOT QUALIFY FOR AWARD OF THE PROCUREMENT IN QUESTION
FOR TWO REASONS - YOU ARE NOT A SMALL BUSINESS CONCERN FOR THE PURPOSE
OF THIS PROCUREMENT, AND, EVEN IF YOU DID QUALIFY AS A SMALL BUSINESS
CONCERN, YOU HAVE BEEN DISQUALIFIED FOR AWARD ON THE BASIS OF THE
NEGATIVE DETERMINATION OF YOUR RESPONSIBILITY, WHICH WAS BASED ON
FACTORS NOT REQUIRING REFERRAL OF THE MATTER TO SBA UNDER THE
CERTIFICATE OF COMPETENCY PROCEDURE. ACCORDINGLY, WHILE WE ARE MINDFUL
THAT THE DELAY IN MAKING AWARD IN THIS INSTANCE HAS BEEN UNUSUALLY LONG,
A PRACTICE WHICH IS TO BE FROWNED UPON, THE BID ACCEPTANCE PERIODS WERE
EXTENDED, AND, IN ANY EVENT, THE REJECTION OF YOUR BID IS REQUIRED.
CONCERNING THE WITHDRAWAL OF THE SET-ASIDE, AS AUTHORIZED BY ASPR
1-706.3/A) IN THE EVENT THE CONTRACTING OFFICER CONSIDERS THAT AWARD
THEREUNDER WOULD BE DETRIMENTAL TO THE PUBLIC INTEREST (E.G. BECAUSE OF
UNREASONABLE PRICE), WE HAVE RECOGNIZED THAT SUCH ACTION IS A MATTER
RESTING WITHIN ADMINISTRATIVE DISCRETION. 37 COMP. GEN. 147; B-152897,
MARCH 2, 1964, AND DECISIONS THEREIN CITED.
EVEN IF SUCH ACTION WERE TAKEN, AND THE PROCUREMENT READVERTISED ON
AN UNRESTRICTED BASIS, OR IF ALL BIDS WERE REJECTED ON THE BASIS OF
UNREASONABLENESS OF THE PRICE OF THE ONLY RESPONSIBLE BIDDER AND THE
PROCUREMENT NEGOTIATED UNDER 10 U.S.C. 2304 (A) (15), THERE APPEARS TO
BE NO LIKELIHOOD THAT YOU WOULD BE CONSIDERED A RESPONSIBLE BIDDER. IN
THE CIRCUMSTANCES, AND SINCE WE ARE ADVISED THAT THE PROCUREMENT HAS
PRIOR CONTRACT WE WOULD BE RELUCTANT TO REQUIRE ON THE BASIS OF YOUR
PROTEST ANY ACTION WHICH WOULD INVOLVE FURTHER DELAY AND WE ARE
THEREFORE ADVISING THE SECRETARY OF THE ARMY THAT WE WILL INTERPOSE NO
OBJECTION TO AWARD OF A CONTRACT TO CALIFORNIA COMPUTER PRODUCTS, INC.,
ON THE BASIS OF ITS REDUCED PRICE OFFER, IF IT BE DETERMINED BY HIS
DEPARTMENT THAT SUCH ACTION IS IN THE BEST INTEREST OF THE GOVERNMENT.
B-158682, JUN. 20, 1966
TO THE PUBLIC PRINTER, U.S. GOVERNMENT PRINTING OFFICE:
WE REFER TO THE QUESTION WHICH WAS RAISED BY OUR OFFICE WITH REGARD
TO THE GRANTING OF COMPENSATORY TIME OFF IN LIEU OF OVERTIME
COMPENSATION TO CERTAIN EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE
WHICH WAS THE SUBJECT OF YOUR REPORT TO OUR OFFICE OF MAY 23, 1966.
YOU EXPRESS THE BELIEF THAT THE AUTHORITY GIVEN YOU IN THE "KIESS
ACT" (44 U.S.C. 40) WITH REGARD TO FIXING THE COMPENSATION OF EMPLOYEES
OF THE GOVERNMENT PRINTING OFFICE IS BROAD ENOUGH TO PERMIT YOU TO ALLOW
COMPENSATORY TIME OFF IN LIEU OF OVERTIME COMPENSATION TO THOSE
EMPLOYEES OF YOUR OFFICE WHOSE COMPENSATION IS FIXED ON THE BASIS OF THE
COMPENSATION PROVIDED FOR POSITIONS WITH COMPARABLE DUTIES BY THE
CLASSIFICATION ACT OF 1949. YOU PREDICATE YOUR LONG ESTABLISHED POLICY
OF SETTING EQUIVALENT PAY SCALES AND OTHERWISE PATTERNING PERSONNEL
PRACTICES AND PROCEDURES IN ACCORD WITH THE PROCEDURES PRESCRIBED BY LAW
TO EMPLOYEES COVERED BY THE CLASSIFICATION ACT ON THE FACTOR OF
SUBSTANTIALLY EQUAL TREATMENT BEING AFFORDED TO EMPLOYEES PERFORMING
COMPARABLE DUTIES.
WE RECOGNIZE THAT A SUBSTANTIAL BASIS EXISTS FOR THE POSITION TAKEN
BY YOU, NOT ONLY ON THE GROUND OF THE KIESS ACT AUTHORITY BUT ALSO UPON
THE STATED CASH SAVINGS TO THE GOVERNMENT AND EQUITABLE TREATMENT TO THE
EMPLOYEES. FURTHER, WE BELIEVE THAT THE LANGUAGE OF OUR DECISION IN 22
COMP. GEN. 807 COVERING THE GRANTING OF COMPENSATORY TIME FOR
"VOLUNTARY" OVERTIME WORK MAY HAVE BEEN A SIGNIFICANT FACTOR IN THE
ORIGINAL ADMINISTRATIVE DETERMINATION TO GRANT COMPENSATORY TIME OFF.
NEVERTHELESS, OUR OPINION IS THAT THE MATTER OF THE RIGHTS OF THE
GOVERNMENT AND THE EMPLOYEES IS NOT ENTIRELY FREE FROM DOUBT IN THE
ABSENCE OF AFFIRMATIVE LEGISLATION IN THIS AREA. A SIMILAR SITUATION
RECENTLY EXISTED IN THE CASE OF THE METROPOLITAN POLICE FORCE, WHICH
DOUBT HAS SINCE BEEN RESOLVED BY THE ENACTMENT OF PUB.L. 89-282.
IN THE CIRCUMSTANCES, OUR OFFICE WILL NOT FURTHER QUESTION THE
PRACTICE OF GRANTING COMPENSATORY TIME TO THE EMPLOYEES IN QUESTION WITH
THE UNDERSTANDING THAT YOUR OFFICE WILL INITIATE ACTION TO PRESENT TO
THE NEXT REGULAR SESSION OF THE CONGRESS A LEGISLATIVE PROPOSAL
CLARIFYING THIS MATTER.
B-158814, JUN. 20, 1966
TO WESTERN SERVICES, INC. :
FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 28, 1966, AND TO
YOUR LETTER OF APRIL 1, 1966, AND ENCLOSURES, PROTESTING AGAINST
CANCELLATION OF INVITATION FOR BIDS (IFB) NO. GS-08-996, AND
READVERTISEMENT OF THE REQUIREMENT UNDER IFB NO. GS-08-996A, BY THE
GENERAL SERVICES ADMINISTRATION (GSA).
THE SUBJECT INVITATION WAS ISSUED ON JANUARY 31, 1966, AND CALLED FOR
BIDS ON FURNISHING THE GOVERNMENT'S REQUIREMENTS FOR REHABILITATION OF
METAL, WOOD, AND UPHOLSTERED OFFICE, QUARTERS, HOSPITAL, AND
INSTITUTIONAL FURNITURE IN THE REGION 8 AREA, WHICH ENCOMPASSES COLORADO
SPRINGS AND
DENVER, COLORADO, FOR A SPECIFIC PERIOD OF TIME. THE INVITATION
PROVIDED THAT AWARD WOULD BE MADE IN THE AGGREGATE FOR SCHEDULES A, B,
AND C, INCLUDING THE SUPPLEMENTS TO SCHEDULES B AND C IN THE COLORADO
SPRINGS AREA, FOR EACH LOCATION, AND THAT THE LOW AGGREGATE BID WOULD BE
DETERMINED BY MULTIPLYING THE WEIGHT FACTORS SHOWN BY THE UNIT PRICES
BID AND SUBTRACTING TIME DISCOUNTS, IF ANY. BIDS WERE OPENED ON
FEBRUARY 21, 1966, AND YOUR FIRM WAS THE APPARENT LOW BIDDER FOR THE
COLORADO SPRINGS AREA. HOWEVER, YOU WERE ADVISED BY TELEPHONE ON MARCH
16, 1966, THAT ALL BIDS FOR THE COLORADO SPRINGS AND DENVER AREAS WERE
REJECTED AND THE REQUIREMENT WOULD BE READVERTISED.
CONTRACTS WERE AWARDED IN THE OTHER AREAS OF REGION 8.
IN REPLY TO YOUR LETTER OF MARCH 16 PROTESTING THE ACTION TAKEN, THE
REGIONAL ADMINISTRATOR ADVISED YOU BY LETTER DATED MARCH 24, 1966, THAT
ALL BIDS WERE REJECTED "BECAUSE OF (1) ERRONEOUS SPECIFICATIONS,
INCLUDING INCORRECT WEIGHTING OF ITEMS INVOLVED IN AGGREGATE AWARDS AND
DEMONSTRATED FAULTY GROUPING OF ITEMS (2) UNREASONABLE PRICES (3)
UNSATISFACTORY COMPETITIVE RESPONSE.' BIDS UNDER THE READVERTISEMENT
WERE OPENED ON APRIL 4, 1966, AND YOU WERE AWARDED THE CONTRACT FOR THE
COLORADO SPRINGS AREA.
THE PRIMARY QUESTION PRESENTED BY YOUR PROTEST IS WHETHER GSA WAS
JUSTIFIED IN REJECTING BIDS AND READVERTISING THE REQUIREMENT FOR THE
TWO AREAS INVOLVED. THE REGIONAL ADMINISTRATOR'S LETTER OF MARCH 24 SET
FORTH THREE REASONS FOR SUCH ACTION, WHICH YOU HAVE CHALLENGED, AND
WHICH GSA HAS EXPLAINED IN GREATER DETAIL IN A REPORT DATED JUNE 6,
1966, TO OUR OFFICE. WITH REGARD TO THE MATTER OF ERRONEOUS WEIGHTING
OF ITEMS, GSA INFORMS US THAT THIS WAS NOT DETECTED UNTIL AFTER BIDS
WERE OPENED AND EXAMINATION OF YOUR METHOD OF BIDDING DISCLOSED IT.
APPARENTLY THE METHOD OF EVALUATION SPECIFIED IN THE INVITATION WOULD
HAVE BEEN ADEQUATE PROVIDED BIDDERS HAD QUOTED REALISTIC UNIT PRICES FOR
THE ITEMS WITHIN EACH SCHEDULE. HOWEVER, THE EVALUATION FORMULA MADE
POSSIBLE A SITUATION WHEREBY BIDDERS COULD BID LOW ON ITEMS WHICH FROM
PAST EXPERIENCE, OR ON SPECULATION, THEY CONSIDERED UNLIKELY TO COME UP
TO THE STATED WEIGHT FACTORS, AND BID HIGH ON ITEMS LIKELY TO MEET OR
EXCEED THE STATED WEIGHT FACTOR. AFTER OPENING OF THE BIDS, IT WAS FELT
THAT YOUR BID TOOK ADVANTAGE OF THE SITUATION MADE POSSIBLE BY THE
EVALUATION FORMULA BY SUBMITTING UNBALANCED PRICES ON ITEMS WITHIN THE
SCHEDULES. FOR EXAMPLE, WE QUOTE THE FOLLOWING FROM THE ADMINISTRATIVE
REPORT:
"WE FEEL THAT THE PROTESTANT'S BID ON THE ORIGINAL INVITATION DID
TAKE ADVANTAGE OF THE IMPROPER WEIGHTS IN THAT INVITATION. FOR EXAMPLE,
ON SCHEDULE A, ITEM 14, THE BIDDER OFFERED TO REHABILITATE A 5 DRAWER
FILING CABINET FOR $25 LESS THAN HIS PRICE FOR REHABILITATING A 4 DRAWER
CABINET OF THE SAME TYPE. ON ITEM 22, ON SCHEDULE A, THE BIDDER OFFERED
TO REFINISH A 45 INCH BY 34 INCH TABLE AT THE SAME PRICE WHICH HE
OFFERED ON ITEM 21, A TABLE WITH APPROXIMATELY ONE-HALF THE SURFACE
AREA. YET ON ITEM 23, THE COST OF REFINISHING A 60 INCH BY 34 INCH
TABLE WAS OVER DOUBLE THE COST OF ITEM 22. ON ITEM 28 OF SCHEDULE A,
THE BIDDER OFFERED TO REFINISH A DESK AND PROVIDE A NEW PLASTIC TOP AT
THE SAME PRICE AS REFINISHING ALONE. SIMILARLY, ON ITEM 10 OF SCHEDULE
B, THE BIDDER OFFERED TO REUPHOLSTER AN ENTIRE CHAIR AT THE SAME PRICE
OFFERED FOR REUPHOLSTERING THE BACK ONLY OR THE SEAT ONLY.'
FACED WITH THIS SITUATION, THE CONTRACTING OFFICER REVIEWED THE
EVALUATION FORMULA, AND DETERMINED THAT THE WEIGHT FACTORS FOR THE TWO
AREAS IN QUESTION DID NOT ACCURATELY REFLECT THE POTENTIAL REQUIREMENTS
FOR THE ITEMS. ALTHOUGH THE WEIGHT FACTORS MAY ALSO HAVE BEEN ERRONEOUS
IN OTHER AREAS, THERE DID NOT APPEAR TO BE ANY UNBALANCING OF ITEM BID
PRICES AND THEREFORE NO PREJUDICE TO THE BIDDERS OR TO THE GOVERNMENT.
THE WEIGHT FACTORS FOR THE SUPPLEMENTS TO SCHEDULES B AND C, WHICH AS
YOU STATE COMPRISE A LARGE PERCENT OF THE WORK IN THE COLORADO SPRINGS
AREA, WERE NOT CHANGED BECAUSE THEY WERE NOT CONSIDERED ERRONEOUS.
HOWEVER, SINCE THE AWARD WAS TO BE MADE IN THE AGGREGATE FOR ALL
SCHEDULES AND SUPPLEMENTS, THE ERRONEOUS WEIGHT FACTORS WOULD HAVE
DISTORTED THE OVERALL EVALUATION. THE EXAMPLES YOU HAVE CITED TO
SUBSTANTIATE YOUR ALLEGATION THAT THERE ARE AS MANY ERRONEOUS WEIGHT
FACTORS IN THE SECOND IFB AS IN THE FIRST ARE NOT CONSIDERED SIGNIFICANT
SINCE IT WOULD BE EXPECTED THAT WHERE A LARGE NUMBER OF A PARTICULAR
ITEM HAD BEEN REPAIRED IN ONE YEAR THE REQUIREMENT FOR REPAIRS IN THE
SUCCEEDING YEAR WOULD BE LESS AND, CONVERSLY, A LARGER NUMBER WULD
REQUIRE REPAIRING WHERE THE NUMBER REPAIRED IN THE PRECEDING YEAR HAD
BEEN SMALL. MOREOVER, SINCE THE ESTABLISHMENT OF WEIGHT FACTORS IS
LARGELY A MATTER OF JUDGMENT WE WOULD NOT BE JUSTIFIED IN SUBSTITUTING
OUR JUDGMENT FOR THAT OF THE PROCURING ACTIVITY PERSONNEL IN THE ABSENCE
OF A CLEAR INDICATION THAT SUCH FACTOR WAS NOT ARRIVED AT IN GOOD FAITH.
THE REFERENCE TO "FAULTY GROUPING OF ITEMS" IN THE REGIONAL
ADMINISTRATOR'S LETTER WAS DIRECTED TO THE REQUIREMENT THAT AWARD WOULD
BE MADE IN THE AGGREGATE FOR ALL THREE SCHEDULES FOR EACH AREA. IT WAS
FELT THAT THIS HAD THE EFFECT OF LIMITING COMPETITION SINCE SOME FIRMS
MAY NOT HAVE THE CAPACITY TO PERFORM ALL OF THE SERVICES REQUIRED UNDER
ALL THREE SCHEDULES, BUT MAY WELL BE ABLE TO PERFORM THE SERVICES
REQUIRED BY ONE OR EVEN TWO OF THE SCHEDULES. THEREFORE, UNDER THE
READVERTISEMENT BIDDERS WERE ALLOWED TO BID ON ONLY ONE SCHEDULE IF THEY
SO DESIRED AND STILL BE ELIGIBLE FOR AWARD. APPARENTLY AS A RESULT OF
THIS CHANGE TWO ADDITIONAL BIDS WERE RECEIVED ON SCHEDULE B AND A THIRD
BID ON ALL THREE SCHEDULES. IT IS, OF COURSE, A BASIC TENET OF FORMAL
ADVERTISING THAT THE SPECIFICATIONS AND INVITATIONS FOR BIDS SHALL
PERMIT SUCH FREE AND FULL COMPETITION AS IS CONSISTENT WITH THE NEEDS OF
THE AGENCY, WHICH WAS THE AIM OF THIS CHANGE.
WITH RESPECT TO THE ADMINISTRATIVE POSITION THAT YOUR PRICES WERE
UNREASONABLE, WE HAVE BEEN FURNISHED A SCHEDULE COMPARING YOUR BID
PRICES FOR MANY OF THE ITEMS WITH THE PRICES FOR THE SAME ITEMS UNDER
YOUR PREVIOUS CONTRACT. ALL OF THE BID PRICES SHOW AN INCREASE, WITH
MANY OF THEM EXCEEDING 100 PERCENT AND ONE INCREASE OF 500 PERCENT.
WITHOUT SOME EXPLANATION AS TO THE REASON FOR SUCH DRAMATIC INCREASES,
WHICH HAS NOT BEEN FURNISHED, THE ONLY CONCLUSION THAT CAN BE REACHED IS
THAT MANY OF YOUR BID PRICES WERE UNREASONABLE. AS FURTHER PROOF OF THE
VALIDITY OF THIS CONCLUSION, IT IS REPORTED THAT YOUR AGGREGATE BID
PRICE FOR THE COLORADO SPRINGS AREA UNDER THE READVERTISEMENT WAS
APPROXIMATELY 18 PERCENT BELOW THAT UNDER THE SUBJECT IFB, AND THAT AN
AWARD HAS BEEN MADE TO YOUR COMPANY AT SUCH BID PRICE.
AS TO YOUR STATEMENT CONCERNING THE DIFFERENCE IN THE ESTIMATED
DOLLAR VOLUME IN THE TWO IFBS, IT IS STATED IN THE IFB PARAGRAPH
INCLUDING SUCH INFORMATION THAT THE NEED FOR THE SERVICES IS NOT
PRECISELY KNOWN AND THAT NO GUARANTEE IS MADE AS TO THE FIGURES STATED.
FURTHERMORE, IT IS STATED THAT THE FIGURES ARE ESTIMATED ON THE BASIS OF
THE VOLUME UNDER THE PRECEDING CONTRACT, AND IN THE SECOND IFB,"AND/OR
BEST ESTIMATE AVAILABLE.' SINCE THESE FIGURES ARE CLEARLY ESTIMATES,
EVEN IF THEY SHOULD PROVE TO BE INCORRECT, WE FAIL TO SEE HOW THEY CAN
BE RELIED UPON TO FORM THE BASIS OF A PROTEST.
SINCE YOU HAVE PRESENTED NO EVIDENCE IN SUPPORT OF YOUR ALLEGATION
THAT YOUR BID WAS REJECTED AND THE REQUIREMENT READVERTISED FOR THE
PURPOSE OF FAVORING SOME UNKNOWN PERSON OR PERSONS, WE HAVE NOT
INVESTIGATED OR INQUIRED FURTHER INTO THIS MATTER.
SECTION 253 (B) OF TITLE 41, UNITED STATES CODE, AUTHORIZES THE
REJECTION OF ALL BIDS WHEN SUCH ACTION IS DETERMINED TO BE IN THE PUBLIC
INTEREST. ALSO, UNDER SECTION 8/B) OF THE TERMS AND CONDITIONS OF THE
IFB, THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS. THE
AUTHORITY TO REJECT BIDS IS NOT ORDINARILY SUBJECT TO REVIEW BY THIS
OFFICE, AND WE HAVE SPECIFICALLY HELD THAT WHEN IT IS ADMINISTRATIVELY
DETERMINED THAT THE LOWEST ACCEPTABLE BID IS IN EXCESS OF THE AMOUNT FOR
WHICH THE GOVERNMENT SHOULD BE ABLE TO PROCURE THE PARTICULAR SERVICE, A
REJECTION OF ALL BIDS IS A PROPER EXERCISE OF ADMINISTRATIVE DISCRETION.
36 COMP. GEN. 364. AS WAS SAID IN THAT DECISION:
"* * * WE HAVE, NEVERTHELESS, CONSISTENTLY SOUGHT TO PROTECT AND
MAINTAIN THE PRINCIPLES OF IMPARTIALITY AND FAIR PLAY UPON WHICH THE
COMPETITIVE BIDDING SYSTEM DEPENDS, AND HAVE NEVER COUNTENANCED THE
REJECTION OF BIDS MERELY FOR THE PURPOSE OF AFFORDING THE BIDDERS AN
OPPORTUNITY TO BETTER THE PRICES OF THEIR COMPETITORS. 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 TH 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.'
SINCE THE FACTS, AS OUTLINED ABOVE, APPEAR TO SUPPORT THE
ADMINISTRATIVE DECISION TO REJECT ALL BIDS FOR THE TWO AREAS CONCERNED
AND READVERTISE THE REQUIREMENT, WE MUST CONCLUDE THAT SUCH ACTION WAS
JUSTIFIED.
B-158943, JUN. 20, 1966
TO MR. ELIAS FERNANDEZ:
REFERENCE IS MADE TO YOUR LETTER DATED MAY 29, 1966, RELATIVE TO OUR
DECISION OF MAY 24, 1966, AND REQUESTING FURTHER CONSIDERATION BE GIVEN
YOUR CLAIM, CONTENDING THAT THE ACT OF JUNE 22, 1926, ON WHICH OUR
DECISION WAS BASED, DOES NOT CONTROL YOUR CASE.
THE RECORDS OF THE TREASURY DEPARTMENT CLEARLY SHOW THAT TWO CHECKS,
IN THE AMOUNT OF $100 EACH WERE ISSUED ON DECEMBER 30, 1945 AND JANUARY
30, 1946, PAYABLE TO YOU AND SENT TO YOUR ADDRESS IN PUERTO RICO. THEIR
RECORDS FURTHER REFLECT THAT BOTH OF THESE CHECKS WERE CASHED AND
ACCEPTED FOR PAYMENT BY THE TREASURY DEPARTMENT.
YOU STATE THAT YOU NEITHER RECEIVED OR ENDORSED THESE CHECKS NOR GAVE
PERMISSION TO ANYONE ELSE TO RECEIVE THEM ON YOUR BEHALF. HOWEVER, SUCH
MATTERS DO NOT STOP THE OPERATION OF THE ACT OF JUNE 22, 1926, 44 STAT.
761, AS AMENDED, 31 U.S.C. 122, WHICH SPECIFICALLY PROVIDES THAT ALL
CLAIMS CONCERNING CHECKS THAT HAVE BEEN ISSUED AND RECORDED BY THE
TREASURY DEPARTMENT AS HAVING BEEN PAID, MUST BE PRESENTED WITHIN 6
YEARS OF THE DATE OF ISSUE OF SUCH CHECKS OR SUCH CLAIMS WILL BE FOREVER
BARRED. THE FIRST NOTICE THAT THIS OFFICE HAD OF YOUR CLAIM WAS YOUR
LETTER OF DECEMBER 13, 1965, CONSIDERABLY MORE THAN 6 YEARS AFTER THE
CHECKS WERE ISSUED AND CASHED.
AS WAS STATED IN OUR DECISION OF MAY 24, 1966, NOT ONLY IS THIS
OFFICE WITHOUT AUTHORITY TO GRANT ANY EXTENSION OF TIME OR MAKE ANY
EXCEPTION TO THE PROVISIONS OF THE STATUTE, IT IS PREVENTED BY LAW FROM
GIVING YOUR CLAIM FURTHER CONSIDERATION.
YOUR LETTER OF MAY 29, 1966, DOES NOT PRESENT ANY MATTERS NOT
PREVIOUSLY CONSIDERED BY THIS OFFICE AND WE MUST ADHERE TO THE ACTION
TAKEN IN OUR DECISION OF MAY 24, 1966.
B-158980, JUN. 20, 1966
TO SCHURR AND FINLAY, INC. :
REFERENCE IS MADE TO YOUR LETTERS OF MARCH 2 AND APRIL 16, 1966, WITH
ENCLOSURES, REQUESTING RELIEF FROM AN ALLEGED MISTAKE IN YOUR BID UNDER
CONTRACT NBY-67349 FOR THE CONSTRUCTION OF ELECTRICAL DISTRIBUTION
SYSTEM (PIERS 1, 3 AND DRY DOCK 1) LONG BEACH NAVAL SHIPYARD, LONG
BEACH, CALIFORNIA.
INVITATION FOR BIDS (IFB) WAS ISSUED ON OCTOBER 11, 1965, WITH BID
OPENING ON NOVEMBER 18, 1965. OF THE FOUR BIDS RECEIVED, YOUR COMPANY
SUBMITTED THE LOW BID ON BID ITEM NO. 1 OF $428,153. THE GOVERNMENT
ESTIMATE WAS IN THE AMOUNT OF $454,800 AND THE NEXT LOW BID WAS IN THE
AMOUNT OF $499,950.
ON NOVEMBER 19, 1965, THE DAY FOLLOWING THE BID OPENING, MR. R. D.
SCHURR, PRESIDENT OF SCHURR AND FINLAY, INC., VISITED THE CONTRACTS
DIVISION OF THE COMMANDER, SOUTHWEST DIVISION, NAVAL FACILITIES
ENGINEERING COMMAND, THE COGNIZANT OFFICE, AND ORALLY REQUESTED
PERMISSION TO ADJUST THE BID UPWARD BY $32,763 FOR CLAIMED OMISSION OF
CERTAIN CABLE COSTS. MR. SCHURR ALLEGED THAT HE HAD OMITTED AN ITEM IN
PREPARING HIS ESTIMATE. HOWEVER, IN A REPORT FROM THE NAVAL FACILITIES
ENGINEERING COMMAND WE ARE ADVISED THAT THIS OMISSION WAS NOT APPARENT
ON THE BID FACE OR ON ANY DOCUMENT THE AUTHENTICITY AND INTEGRITY OF
WHICH COULD BE ESTABLISHED. THE ADMINISTRATIVE OFFICE CONSIDERED THAT
MR. SCHURR'S ALLEGATIONS MIGHT ESTABLISH THE EXISTENCE OF A MISTAKE IN
VIEW OF THE BID RANGE BUT THOUGHT THAT THE ALLEGATIONS DID NOT ESTABLISH
CLEAR AND CONVINCING EVIDENCE BOTH OF THE EXISTENCE OF A MISTAKE AND THE
BID ACTUALLY INTENDED AS REQUIRED BY THE ARMED SERVICES PROCUREMENT
REGULATION (ASPR) PARAGRAPH 2-406.3 BEFORE A BIDDER IS PERMITTED TO
CORRECT HIS BID UPWARD AFTER THE OPENING OF BIDS.
ACCORDINGLY, MR. SCHURR WAS ADVISED THAT THE BID COULD NOT BE
ADJUSTED AFTER THE BID OPENING, BUT THAT CONSIDERATION WOULD BE GIVEN TO
A REQUEST TO WITHDRAW BASED ON ERROR. IT IS STATED THAT MR. SCHURR
AGREED TO REVIEW HIS WORKSHEETS AND EITHER CONFIRM THE PRICE AS
PRESENTED, OR REQUEST WITHDRAWAL FOR ERROR. BY TELEGRAM OF NOVEMBER 22,
1965, THE COMPANY VERIFIED ITS BID AND INDICATED THAT IT WAS ACCEPTABLE.
THE CONTRACT WAS AWARDED ON NOVEMBER 30, 1965, TO YOU AS LOW BIDDER FOR
BID ITEM NO. 1.
ON APRIL 11, 1966, NEARLY 5 MONTHS AFTER THE AWARD OF THE CONTRACT,
YOU WROTE TO THE CONTRACT DIVISION, SOUTHWEST DIVISION, BUREAU OF YARDS
AND DOCKS, REQUESTING RELIEF ON THE BASIS OF AN ERROR IN YOUR ORIGINAL
BID CALCULATIONS IN THE AMOUNT OF $32,763. YOU ALLEGE THAT AN EMPLOYEE
MADE AN ERROR OR CALCULATION ON ONE ITEM IN THE BID PRICE, BY NOT
EXTENDING AND ADDING AN AMOUNT FOR 1/C-750MCM CABLE. YOU STATE THAT
THIS ITEM WAS LISTED IN YOUR TAKEOFF SHEETS AND UNIT PRICED, BUT THAT AN
EMPLOYEE IN CALCULATING FAILED TO RUN THE EXTENSION ON THIS AND DID NOT
ADD IT ON THE TAPE.
THE RECORD INDICATES THAT YOU WERE GIVEN AMPLE OPPORTUNITY PRIOR TO
AWARD TO REVIEW AND CONFIRM YOUR BID OR REQUEST PERMISSION TO WITHDRAW
ON THE BASIS OF ERROR. HOWEVER, YOU CHOSE NOT TO ATTEMPT TO WITHDRAW
THE BID BUT TO ACCEPT THE AWARD OF THE CONTRACT FOR THE BID PRICE OF
$428,153 WITH THE FULL KNOWLEDGE THAT YOUR REQUEST TO ADJUST THE BID
UPWARD HAD BEEN DENIED.
THE FACTS IN THIS CASE ARE SOMEWHAT SIMILAR TO THOSE CONSIDERED IN
THE CASE OF THE MASSMAN CONSTRUCTION CO. V. UNITED STATES, 102 CT.CL.
699, CERTIORARI DENIED 325 U.S. 866 (1945). IN THAT CASE THE PLAINTIFFS
ALLEGED THAT IT OMITTED AN ITEM OF $88,000 IN ITS BID SUBMITTED TO THE
WAR DEPARTMENT. THE COURT, IN DENYING RECOVERY OF THE AMOUNT ASKED,
STATED AT PAGE 717:
"AT THE TIME THE CONTRACT WAS AWARDED TO THE PLAINTIFF, PURSUANT TO
ITS BID, AND AT THE TIME IT SIGNED THE CONTRACT, THE PLAINTIFF WAS NOT
MISTAKEN. IT HAD BECOME AWARE OF THE MISTAKE IN ITS BID, AND FACED THE
PROBLEM OF WHETHER IT WAS WILLING TO SIGN A CONTRACT FOR THE FIGURE
WHICH IT HAD, BY MISTAKE SINCE DISCOVERED, BID. THE GOVERNMENT WAS ALSO
AWARE OF THE PLAINTIFF'S CLAIM THAT IT HAD MADE A MISTAKE IN ITS BID.
THERE WAS NOT, THEN, AT THE TIME OF SIGNING THE CONTRACT, ANY LACK OF
KNOWLEDGE, EITHER MUTUAL OR UNILATERAL, WHICH CAUSED EITHER OF THEM TO
MAKE THE CONTRACT WHICH THEY DID MAKE, WHEN IN FACT THEY INTENDED TO
MAKE A DIFFERENT CONTRACT. THAT BEING SO, IF WE SHOULD REFORM THE
CONTRACT AS THE PLAINTIFF REQUESTS, WE WOULD BE MAKING FOR THE PARTIES
THE VERY CONTRACT WHICH ONE OF THEM, THE GOVERNMENT, EXPRESSLY REFUSED
TO MAKE AT THAT TIME, THOUGH REQUESTED TO DO SO BY THE PLAINTIFF.'
SEE ALSO BOARD OF TRUSTEES OF NATIONAL TRAINING SCHOOL FOR BOYS V.
O. D. WILSON CO., INC., 133 F.2D 399; 39 COMP. GEN. 405, 23 ID. 596.
IT IS CLEAR THAT ANY ERROR THAT WAS MADE IN THE BID OF THE COMPANY---
THE RESPONSIBILITY FOR THE PREPARATION OF WHICH WAS UPON THE BIDDER---
WAS DUE SOLELY TO ITS OWN OVERSIGHT AND WAS IN NO WAY INDUCED OR
CONTRIBUTED TO BY THE GOVERNMENT. THUS, THE ERROR WAS UNILATERAL--- NOT
MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE YOUR COMPANY TO RELIEF. SEE
26 COMP. GEN. 426 AND THE CASES CITED THEREIN.
ACCORDINGLY, FOR THE FOREGOING REASONS NO VALID BASIS APPEARS FOR
INCREASING THE CONTRACT PRICE.
B-159163, JUN. 20, 1966
TO MR. EDWARD N. NELSON:
THIS IS IN REPLY TO YOUR LETTER OF APRIL 26, 1966, APPEALING FROM OUR
OFFICE SETTLEMENT NO. Z-2310245 OF APRIL 18, 1966, DENYING YOUR CLAIM
FOR OVERTIME AND NIGHT DIFFERENTIAL AS AN EMPLOYEE OF THE POST OFFICE
DEPARTMENT.
THE RECORD INDICATES THAT YOU WERE EMPLOYED IN THE OFFICE OF THE
REGIONAL DIRECTOR, MINNEAPOLIS, MINNESOTA, AS A METHODS AND STANDARDS
ANALYST, PFS-12, STEP 9 AT $12,170 PER ANNUM, DURING THE PERIOD COVERED
BY YOUR CLAIM JULY 8, 1961, TO OCTOBER 8, 1965. YOUR DUTIES CONSISTED
IN TRAVELING TO FIELD POST OFFICES OBSERVING THEIR METHODS OF OPERATION,
ADVISING THEM CONCERNING VARIOUS PROGRAMS INCLUDING THE WORK MEASUREMENT
SYSTEM AND THE NATIONWIDE IMPROVED MAIL SERVICE, AND TALKING OVER
PROBLEMS WITH THE POSTMASTERS. YOU ASSERT THAT YOUR ASSIGNMENTS
REQUIRED YOU TO OBSERVE OPERATIONS ON POST OFFICE WORKROOM FLOORS FROM
EARLY IN THE MORNING THROUGH THE CRITICAL PEAK PERIODS IN THE EVENING,
THAT MUCH OF YOUR WORK IN THE FIELD WAS DONE BEFORE AND AFTER REGULAR
WORKING HOURS, AT NIGHTTIME, AND ON SATURDAYS AND SUNDAYS, AND THAT THIS
WAS KNOWN AND UNDERSTOOD BY YOUR SUPERVISORS.
YOUR CLAIM FOR 353 HOURS COMPENSATORY TIME AND 312 HOURS OF NIGHT
DIFFERENTIAL PAY WAS DENIED BY THE DEPARTMENT IN A LETTER DATED DECEMBER
9, 1965, ON THE GROUND THAT IT HAD NO AUTHORITY TO PAY SUCH A CLAIM NOT
ORDERED BY YOUR SUPERVISORS AND NOT BASED ON OFFICIAL RECORDS, CITING 33
COMP. GEN. 32.
IN SUPPORT OF YOUR CLAIM YOU HAVE SUBMITTED A NUMBER OF WEEKLY
REPORTS OF TRAVEL, A FORM USED IN THE REGIONAL HEADQUARTERS, SHOWING
YOUR TIME OF ARRIVAL AND DEPARTURE AT VARIOUS POST OFFICES THAT YOU
VISITED. YOU ALSO ASSERT THAT YOU WERE REQUIRED BY DEPARTMENTAL
REGULATIONS TO MAINTAIN AN OFFICIAL TRAVEL DIARY FORM 5025, NOT INCLUDED
IN THE RECORD, UPON WHICH THE WEEKLY TRAVEL REPORTS WERE BASED AND WHICH
YOU CONTEND SHOW YOUR ACTUAL HOURS OF WORK AT THE POST OFFICES YOU
VISITED. YOU ALSO INCLUDED ITINERARY SCHEDULES POD FORM 998 SHOWING
YOUR PROPOSED MOVEMENTS WHILE TRAVELING WHICH HAD BEEN INITIALED BY YOUR
SUPERIORS.
WITH RESPECT TO MAXIMUM HOURS OF WORK, COMPENSATORY TIME AND
OVERTIME, 39 U.S.C. 3571 AND 3573 PROVIDE IN PERTINENT PART AS FOLLOWS:
"SEC. 3571. MAXIMUM HOURS OF WORK.
"EXCEPT AS OTHERWISE PROVIDED IN THIS TITLE, EMPLOYEES MAY NOT BE
REQUIRED TO WORK MORE THAN EIGHT HOURS A DAY. THE WORK SCHEDULE OF
EMPLOYEES SHALL BE REGULATED SO THAT THE EIGHT HOURS OF SERVICE DOES NOT
EXTEND OVER A LONGER PERIOD THAN TEN CONSECUTIVE HOURS.
"SEC. 3573. COMPENSATORY TIME, OVERTIME, AND HOLIDAYS.
"IN EMERGENCIES OR IF THE NEEDS OF THE SERVICE REQUIRE, THE
POSTMASTER GENERAL MAY REQUIRE EMPLOYEES TO WORK MORE THAN EIGHT HOURS
IN ONE DAY, OR ON SATURDAYS, SUNDAYS, OR HOLIDAYS. FOR THAT SERVICE HE
SHALL GRANT EMPLOYEES IN THE "PFS" SCHEDULE COMPENSATORY TIME OR PAY
THEM OVERTIME
COMPENSATION UNDER THE FOLLOWING RULES: * * *
"/4) EACH EMPLOYEE IN OR ABOVE SALARY LEVEL PFS-8 WHO PERFORMS
OVERTIME OR HOLIDAY WORK AS DESCRIBED IN THIS SECTION, UNDER REGULATIONS
PRESCRIBED BY THE POSTMASTER GENERAL, SHALL BE GRANTED COMPENSATORY TIME
IN AN AMOUNT EQUAL TO THE OVERTIME OR HOLIDAY WORK.'
AN EXEMPTION FROM THE PROVISIONS OF SECTIONS 3571 AND 3573 FOR SUCH
EMPLOYEES AS THE POSTMASTER DESIGNATES IS CONTAINED IN 39 U.S.C. 3575.
IN PART 755 OF THE POST OFFICE MANUAL, 1954 EDITION, EFFECTIVE AT THE
INCEPTION OF YOUR CLAIM THE POSTMASTER GENERAL PROVIDED FOR OVERTIME,
SATURDAY AND SUNDAY WORK AS FOLLOWS:
".11 OVERTIME WORK
".111 * * * WORK IN EXCESS OF 8 HOURS IN A DAY IS OVERTIME.
".12 SATURDAY AND SUNDAY WORK
"SATURDAY AND SUNDAY EMPLOYMENT SHALL BE RESTRICTED TO ESSENTIAL
SERVICE. * * *
".13 HOLIDAY WORK
".131 * * * HOLIDAY EMPLOYMENT SHALL BE RESTRICTED TO ESSENTIAL
SERVICE. * * *
".14 COMPENSATORY TIME FOR EMPLOYEES IN PFS-8 AND ABOVE
"ELIGIBLE EMPLOYEES IN PFS-8 AND ABOVE WHO ARE REQUIRED TO WORK IN
EXCESS OF 8 HOURS IN ANY ONE DAY, OR TO PERFORM WORK ON SATURDAY,
SUNDAY, OR A DAY OBSERVED AS A HOLIDAY, OR A DAY DEEMED A HOLIDAY FOR
PAY AND LEAVE PURPOSES, SHALL BE GRANTED COMPENSATORY TIME FOR THE WORK
PERFORMED WITHIN 13 PAY PERIODS FOLLOWING THE END OF THE PAY PERIOD IN
WHICH THE SERVICE WAS PERFORMED. THE COMPENSATORY TIME SHALL BE GRANTED
WHEN THE SERVICES CAN BEST BE SPARED. WHERE SUPERVISORY COVERAGE IS
SUFFICIENT, COMPENSATORY TIME FOR SATURDAY AND SUNDAY SERVICE SHALL BE
GRANTED WITHIN 5 WORKING DAYS FOLLOWING THE SATURDAY OR SUNDAY ON WHICH
THE SERVICE WAS PERFORMED.'
AS A PFS-12 IN A REGIONAL OFFICE YOU WERE NOT EXCLUDED FROM
COMPENSATORY TIME FOR OVERTIME WORK UNDER SECTION 755.18 OF THE
REGULATIONS.
AS MAY BE SEEN FROM THE FOREGOING STATUTE OVERTIME WORK AND SATURDAY
AND SUNDAY WORK MAY BE REQUIRED BY THE POSTMASTER GENERAL ONLY IN
EMERGENCIES OR AS THE NEEDS OF THE SERVICE REQUIRE. HIS DETERMINATION
AS TO THE PRESENCE OF THESE CONDITIONS IS A PREREQUISITE TO REQUIRING
SUCH WORK TO BE PERFORMED.
THERE IS NO INDICATION THAT THE EXTRA HOURS AND NIGHT DIFFERENTIAL
FOR WHICH YOU MAKE CLAIM WAS EVER BROUGHT TO THE ATTENTION OF YOUR
SUPERIORS IN THE FORM OF A REQUEST FOR COMPENSATORY TIME FOR WORK IN
EXCESS OF YOUR REGULAR SCHEDULE OR AS A BASIS FOR REQUESTING NIGHT
DIFFERENTIAL PAY FOR HOURS WORKED BETWEEN 6 P.M. AND 6 A.M. IF THE
POSTAL AUTHORITIES HAD BEEN ADVISED THAT YOU WERE PUTTING IN MANY EXTRA
HOURS OF WORK FOR WHICH COMPENSATORY TIME OFF OR SPECIAL PAY ORDINARILY
WOULD BE INVOLVED, IT IS POSSIBLE SOME ARRANGEMENT MIGHT HAVE BEEN MADE
IN YOUR WORKING HOURS OR IF THEY DETERMINED THE OVERTIME AND NIGHT PAY
WORK WAS UNAVOIDABLE THEN COMPENSATORY TIME OFF AND NIGHT PAY WOULD
UNDOUBTEDLY HAVE BEEN AWARDED TO YOU. AN INDIVIDUAL WORKER IS NOT
AUTHORIZED UNDER THE REGULATIONS TO MAKE THE DETERMINATIONS IN HIS OWN
CASE AS TO THE NEED FOR OR THE REQUIREMENT THAT THE OVERTIME OR NIGHT
WORK BE PERFORMED. THIS IS A JUDGMENTAL MATTER RESERVED FOR SUPERVISORS
AUTHORIZED TO APPROVE OVERTIME. ACCORDINGLY, AND AS THE POST OFFICE
DEPARTMENT HAS NOT SEEN FIT TO ADMINISTRATIVELY APPROVE THIS WORK AS
AUTHORIZED OVERTIME, YOUR REQUEST FOR OVERTIME PAY FOR THE PERIOD OF
YOUR CLAIM MUST BE DENIED. THE REASONS SET FORTH ABOVE RELATING TO
DENIAL OF YOUR CLAIM FOR OVERTIME ARE EQUALLY APPLICABLE TO NIGHT
DIFFERENTIAL.
CONCERNING YOUR REQUEST FOR RETURN OF EXHIBITS, YOU MAY BE ADVISED
THAT PAPERS SUBMITTED IN SUPPORT OF A CLAIM BECOME A PART OF THE
PERMANENT RECORDS OF THIS OFFICE.
AS TO WHAT YOUR NEXT LINE OF APPEAL MAY BE, YOUR ATTENTION IS INVITED
TO THE PROVISIONS OF TITLE 28, UNITED STATES CODE, SECTIONS 1346 AND
1491, WHEREIN JURISDICTION IS CONFERRED UPON THE UNITED STATES COURT OF
CLAIMS, WASHINGTON, D.C., AND THE UNITED STATES DISTRICT COURTS
(LIMITATION OF $10,000) TO RENDER JUDGMENT UPON A CLAIM AGAINST THE
UNITED STATES SUCH AS HERE INVOLVED. THERE IS NO FURTHER ADMINISTRATIVE
APPEAL FROM A DECISION OF THE COMPTROLLER GENERAL. IN THE EVENT YOU
DECIDE TO FURTHER PURSUE YOUR CLAIM IN A COURT OF THE UNITED STATES ANY
PAPERS SUBMITTED
HERE WHICH ARE APPLICABLE TO THE MATTER WILL BE MADE AVAILABLE TO TH
COURT UPON REQUEST.
B-159401, JUN. 20, 1966
TO AUTHORIZED CERTIFYING OFFICER, INTERNAL REVENUE SERVICE CENTER,
U.S. TREASURY DEPARTMENT:
YOUR LETTER OF MAY 26, 1966, AND ENCLOSURES, REQUESTS OUR DECISION
WHETHER WAGES REPRESENTING OVERTIME, NIGHT DIFFERENTIAL, AND WORK
PERFORMED ON SUNDAYS AND HOLIDAYS ARE TO BE CONSIDERED AS ,AMOUNTS
EARNED THROUGH OTHER EMPLOYMENT" FOR THE PURPOSE OF COMPUTING THE
DEDUCTIONS FROM BACK PAY DUE AN EMPLOYEE UPON CANCELLATION OF AN
ERRONEOUS REMOVAL ACTION. WHILE A VOUCHER WAS NOT SUBMITTED YOU
INDICATE THAT THE MATTER IS BEFORE YOU FOR DISPOSITION.
THE SPECIFIC CASE BEFORE YOU INVOLVES AN EMPLOYEE WHO WAS RESTORED TO
HIS POSITION WITH THE INTERNAL REVENUE SERVICE ON JANUARY 3, 1966,
FOLLOWING REMOVAL THEREFROM ON DECEMBER 4, 1964. DURING HIS PERIOD OF
SEPARATION THE EMPLOYEE EARNED GROSS INCOME OF $5,775.75 IN PRIVATE
INDUSTRY. OF THAT AMOUNT, APPROXIMATELY $350 REPRESENTS WAGES FOR
OVERTIME, NIGHT DIFFERENTIAL AND WORK PERFORMED ON SUNDAYS AND HOLIDAYS.
THE EMPLOYEE CONTENDS THAT SUCH WAGES ($350) SHOULD NOT BE DEDUCTED
FROM HIS BACK PAY SINCE THEY WERE EARNED EITHER DURING HOURS OR ON DAYS
OUTSIDE OF HIS REGULAR TOUR OF DUTY WITH THE INTERNAL REVENUE SERVICE.
THE DEDUCTION OF INTERIM EARNINGS FROM RETROACTIVE COMPENSATION PAID
AN EMPLOYEE WHO HAS BEEN IMPROPERLY REMOVED FROM THE SERVICE IS REQUIRED
BY SECTION 6 (B) (1) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE
ACT OF JUNE 10, 1948, 5 U.S.C. 652 (B) (1). THAT SECTION REQUIRES THE
DEDUCTION OF "ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING
SUCH PERIOD.' THE RULE EXPRESSED BY THE UNITED STATES COURT OF CLAIMS
AND BY OUR OFFICE UNDER THAT PROVISION IS THAT ONLY THOSE ADDITIONAL
EARNINGS WHICH WOULD HAVE ACCRUED TO THE EMPLOYEE CONCERNED REGARDLESS
OF HIS SUSPENSION OR REMOVAL ARE NOT TO BE DEDUCTED FROM RETROACTIVE
COMPENSATION. JACKSON V. UNITED STATES, 121 CT.CL. 405; 32 COMP. GEN.
408; 34 ID. 384. AMOUNTS EARNED BY A SUSPENDED OR SEPARATED EMPLOYEE
FOR WORK PERFORMED OUTSIDE OF HIS REGULAR HOURS OF EMPLOYMENT WITH THE
GOVERNMENT OR ON DAYS WHICH NORMALLY WOULD HAVE BEEN NONWORKDAYS WITH
THE GOVERNMENT ARE NOT AUTOMATICALLY TO BE SUBTRACTED FROM INTERIM
EARNINGS BUT ARE SUBJECT TO THE RULE EXPRESSED ABOVE. SEE B-95927,
JANUARY 12, 1951, AND B-150550, JANUARY 28, 1963 (COPIES ENCLOSED).
THEREFORE, SINCE THE EMPLOYEE HERE APPARENTLY HAD NO INCOME FROM
OUTSIDE EMPLOYMENT PRIOR TO HIS SEPARATION, THE TOTAL AMOUNT OF INTERIM
EARNINGS ($5,775.75) IS TO BE DEDUCTED FROM HIS RETROACTIVE
COMPENSATION.
B-136051, JUN 17, 1966
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
EDWARD G. BEAGLE, JR., UNITED STATES DEPARTMENT OF THE INTERIOR:
THIS IS IN REPLY TO YOUR LETTER OF MAY 23, 1966, RELATING TO THE
ENTITLEMENT OF MR. EDMUND C. GASS, FORMER ASSISTANT EXECUTIVE DIRECTOR
OF THE CIVIL WAR CENTENNIAL COMMISSION (CWCC) TO SEVERANCE PAY.
YOUR LETTER INDICATES MR. GASS WAS GIVEN AN EXCEPTED APPOINTMENT AS
ASSISTANT EXECUTIVE DIRECTOR OF THE COMMISSION AT THE GS-13 LEVEL ON
APRIL 7, 1958, AND CONTINUED IN THAT POSITION UNTIL THE COMMISSION
TERMINATED BY LAW ON MAY 1, 1966. DURING THE TERM OF HIS EMPLOYMENT,
MR. GASS WAS SUBJECT TO THE CIVIL SERVICE RETIREMENT ACT. AT THE TIME
OF THE TERMINATION OF HIS APPOINTMENT HE WAS NOT ELIGIBLE TO RECEIVE AN
IMMEDIATE ANNUITY SINCE HE WAS ONLY 59 1/2 YEARS OF AGE AND HAD AT THAT
TIME 18 YEARS AND 2 MONTHS OF FEDERAL EMPLOYMENT.
THE CIVIL WAR CENTENNIAL COMMISSION WAS ESTABLISHED PURSUANT TO PUB.
L. 85-305, APPROVED SEPTEMBER 7, 1957, 71 STAT. 626. SECTION 6(C) OF
THE ACT PROVIDED THAT "A FINAL REPORT SHALL BE MADE TO THE CONGRESS NO
LATER THAN MAY 1, 1966, UPON WHICH DATE THE COMMISSION SHALL TERMINATE."
SECTION 6(A) OF PUB. L. 85-305 FURTHER PROVIDED THAT "THE COMMISSION
MAY EMPLOY, WITHOUT REGARD TO CIVIL SERVICE LAWS OR THE CLASSIFICATION
ACT OF 1949, AN EXECUTIVE DIRECTOR AND SUCH EMPLOYEES AS MAY BE
NECESSARY TO CARRY OUT ITS FUNCTIONS."
AS YOU POINT OUT SECTION 9 OF THE FEDERAL EMPLOYEES SALARY ACT OF
1965, PUB. L. 89-301, APPROVED OCTOBER 29, 1965, 79 STAT. 1118, PROVIDES
FOR THE PAYMENT OF SEVERANCE PAY. SECTION 9(B)(2) STATES THAT THE ACT
DOES NOT APPLY TO AN OFFICER SERVING UNDER AN APPOINTMENT WITH A
DEFINITE TIME LIMITATION, EXCEPT ONE SO APPOINTED FOR FULL-TIME
EMPLOYMENT, WITHOUT A BREAK IN SERVICE OR AFTER A SEPARATION OF THREE
DAYS OR LESS, FOLLOWING SERVICE UNDER AN APPOINTMENT WITHOUT TIME
LIMITATION.
IN EXECUTIVE ORDER NO. 11257 OF NOVEMBER 17, 1965, THE PRESIDENT
DESIGNATED THE CIVIL SERVICE COMMISSION AS THE AGENCY TO PRESCRIBE THE
IMPLEMENTING REGULATIONS. THESE REGULATIONS, 550.701 TO 550.708
(ATTACHMENTS TO FPM LTR. 550-13, DATED JANUARY 5, 1966) PROVIDE IN
PERTINENT PART AS FOLLOWS:
"SEC. 550.701(B) EMPLOYEES. (1) EXCEPT AS PROVIDED BY SUBPARAGRAPH
(2) OF THIS PARAGRAPH AND SECTION 9(B) OF THE ACT, THIS SUBPART APPLIES
TO EACH FULL-TIME AND PART-TIME OFFICER AND EMPLOYEE OF A DEPARTMENT,
WITH A REGULARLY PRESCHEDULED TOUR OF DUTY WITHIN EACH ADMINISTRATIVE
WORKWEEK, AND TO EACH HOURLY OFFICER AND EMPLOYEE IN THE POSTAL FIELD
SERVICE, WHO IS SERVING (I) UNDER A CAREER OR CAREER-CONDITIONAL
APPOINTMENT IN THE COMPETITIVE SERVICE OR UNDER THEIR EQUIVALENT IN THE
EXCEPTED SERVICE; (II) UNDER AN INDEFINITE APPOINTMENT IN THE
COMPETITIVE SERVICE MADE UNDER THE INDEFINITE-APPOINTMENT SYSTEM THAT
PRECEDED THE CAREER-CONDITIONAL APPOINTMENT SYSTEM; (III) UNDER AN
INDEFINITE APPOINTMENT WITHOUT TIME LIMITATION IN THE EXCEPTED SERVICE;
(IV) UNDER AN OVERSEAS LIMITED APPOINTMENT WITHOUT TIME LIMITATION; (V)
AS A STATUS QUO EMPLOYEE INCLUDING ONE WHO BECOMES AN INDEFINITE
EMPLOYEE UPON PROMOTION, DEMOTION, OR REASSIGNMENT
"SEC. 550.702 ENTITLEMENT. THIS SUBPART AND SECTION (9) OF THE ACT
APPLY TO THE COMPUTATION AND PAYMENT OF SEVERANCE PAY TO AN EMPLOYEE WHO
IS INVOLUNTARILY SEPARATED FROM THE SERVICE, NOT BY REMOVAL FOR CAUSE ON
CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY.
"SEC. 550.704(B)(4). (I) FOR ENTITLEMENT TO SEVERANCE PAY UNDER
SECTION 9(B)(2) OF THE ACT, THE APPOINTMENT WITHOUT TIME LIMITATION MUST
BE ONE OF THE APPOINTMENTS SPECIFIED IN SECTION 550.701(B)(1) AND THE
TERMINATION FROM THAT APPOINTMENT MUST HAVE RESULTED FROM AN INVOLUNTARY
SEPARATION NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT,
DELINQUENCY, OR INEFFICIENCY. (II) IF AN EMPLOYEE RETAINS ENTITLEMENT
TO SEVERANCE PAY UNDER SECTION 9(B)(2) OF THE ACT, 8BASIC COMPENSATION
AT THE RATE RECEIVED IMMEDIATELY BEFORE SEPARATION' UNDER SECTION 9(D)
OF THE ACT IS THAT BASIC RATE RECEIVED IMMEDIATELY BEFORE THE
TERMINATION OF THE APPOINTMENT WITHOUT TIME LIMITATION.
"(D) DETERMINATION OF TWELVE MONTHS CONTINUOUS SERVICE. THE
REQUIREMENT OF SECTION 9(E) OF THE ACT IS MET IF THE EMPLOYEE ON THE
DATE OF SEPARATION HAS BEEN ON THE ROLLS OF ONE OR MORE DEPARTMENTS
UNDER ONE OR MORE APPOINTMENTS WITHOUT TIME LIMITATION, OR TEMPORARY
APPOINTMENTS THAT PRECEDE OR FOLLOW AN APPOINTMENT WITHOUT TIME
LIMITATION, WITHOUT ANY BREAK IN SERVICE OF MORE THAN THREE CALENDAR
DAYS FOR AT LEAST THE PRECEDING TWELVE CALENDAR MONTHS."
UNDER THE FOREGOING STATUTE AND REGULATIONS AN EMPLOYEE TO BE
ENTITLED TO SEVERANCE PAY MUST BE SERVING UNDER AN INDEFINITE
APPOINTMENT IN THE EXCEPTED SERVICE, UNLESS HIS PRESENT TEMPORARY
APPOINTMENT WAS PRECEDED BY AN INDEFINITE APPOINTMENT FROM WHICH HE WAS
INVOLUNTARILY SEPARATED. THE RECORD INDICATES THAT MR. GASS WAS SERVING
WITH THE CWCC UNDER AN EXCEPTED APPOINTMENT WHICH WOULD TERMINATE ON THE
TERMINATION DATE OF THE COMMISSION MAY 1, 1966. THIS WAS AN APPOINTMENT
WITH A DEFINITE TIME LIMITATION. THEREFORE, INVOLUNTARY SEPARATION FROM
THAT APPOINTMENT DID NOT ENTITLE HIM TO SEVERANCE PAY UNDER THE
ABOVE-QUOTED REGULATIONS OF THE CIVIL SERVICE COMMISSION.
WE NOTE THAT MR. GASS PREVIOUSLY SERVED UNDER AN APPOINTMENT
(EFFECTIVE JULY 1, 1957) AS ARCHIVIST WITH THE NATIONAL PARK SERVICE AND
THAT SUCH APPOINTMENT WAS DESIGNATED AS TEMPORARY PENDING THE
ESTABLISHMENT OF A REGISTER. IT IS UNDERSTOOD INFORMALLY FROM THE CIVIL
SERVICE COMMISSION THAT MR. GASS IS NOT REGARDED AS HAVING SERVED IN THE
NATIONAL PARK SERVICE IN ANY OF THE TYPES OF APPOINTMENTS SPECIFIED IN
SECTION 550.701(B)(1). MOREOVER, AS INDICATED ABOVE, SECTION 550.704(B)
OF THE REGULATIONS STATE THAT EVEN WHERE A TEMPORARY APPOINTMENT FOLLOWS
AN INDEFINITE APPOINTMENT THERE MUST HAVE BEEN AN INVOLUNTARY SEPARATION
FROM THE PRIOR INDEFINITE APPOINTMENT FOR ENTITLEMENT TO SEVERANCE PAY
UNDER SECTION 9(B)(2) OF THE ACT. HERE, THERE IS NO INDICATION THAT MR.
GASS' SEPARATION FROM THE NATIONAL PARK SERVICE - APPARENTLY ON APRIL 6,
1958, TO ACCEPT EMPLOYMENT ON APRIL 7, 1958, WITH THE CIVIL WAR
CENTENNIAL COMMISSION - WAS INVOLUNTARY.
ACCORDINGLY, THERE IS NO AUTHORITY FOR PAYMENT OF SEVERANCE PAY IN
THIS CASE.
B-158783, JUN. 17, 1966
TO MR. LEONARD J. EMMERGLICK:
REFERENCE IS MADE TO YOUR LETTERS DATED MARCH 23, AND 31 AND APRIL
12, 1966, PROTESTING, ON BEHALF OF THE LUPTON MANUFACTURING COMPANY,
ACCEPTANCE OF THE BID OF THE KAISER ALUMINUM AND CHEMICAL SALES UNDER
DEPARTMENT OF THE INTERIOR, BONNEVILLE POWER ADMINISTRATION, INVITATION
FOR BIDS NO. 280.
THE INVITATION, ISSUED ON DECEMBER 22, 1965, COVERED 466 TYPE 88Q,
85-FOOT TOWERS AND RELATED MAST EXTENSIONS FOR USE IN A 750 KV DIRECT-
CURRENT TRANSMISSION LINE. BIDS WERE INVITED FOR DELIVERY OF MATERIAL
EITHER F.O.B. DESTINATION, BEND, OREGON, IN 480 CALENDAR DAYS OR F.O.B.
SHIPPING POINT IN 460 CALENDAR DAYS FROM DATE OF AWARD. FIVE BIDS WERE
RECEIVED AS FOLLOWS:
TABLE
MITSUI AND COMPANY LIMITED, SEATTLE, WASH. $2,406,038.34
(SPECIFYING JAPAN SOURCE) F.O.B. BEND, OREGON
LUPTON MANUFACTURING CO., PHILADELPHIA, PA.
F.O.B. FACTORY (PHILADELPHIA) WITH FREIGHT 826,905.00
ALLOWED TO DESTINATION
PHELPS DODGE COPPER PRODUCTS CORPORATION,
NEW YORK, N.Y., F.O.B., BEND, OREGON 1,206,627.88
KAISER ALUMINUM AND CHEMICAL SALES, OAKLAND, CALIF.
F.O.B. BEND, OREGON 606,084.00
FENTRON INDUSTRIES, INC., SEATTLE, WASH.
F.O.B. TRUCKS, UNLOADING SITE, BEND, OREGON 1,035,549.00
YOU STATE THAT THE VARIANCE BETWEEN THE LOWEST BID BY KAISER AND THE
SECOND LOWEST BID BY LUPTON AND THE PRESUMED VARIANCE BETWEEN THE KAISER
BID AND THE TARGET PRICE FORMULATED BY THE PROCUREMENT AUTHORITY WARRANT
A PRESUMPTION THAT A MISTAKE IN BID OCCURRED ON THE PART OF THE LOWEST
BIDDER, KAISER. YOU STATE FURTHER THAT IF A MISTAKE DID NOT OCCUR IN
THE KAISER BID, SAID BID REPRESENTS AN OFFER TO SELL BELOW COST WHICH
RAISES A SERIOUS QUESTION AS TO THE POSSIBLE VIOLATION OF THE ANTITRUST
LAWS. YOU REQUEST THAT AN INVESTIGATION BE INITIATED, INCLUDING A
REQUEST FOR VERIFICATION FROM THE LOW BIDDER, KAISER, AND IF IT APPEARS
THAT A MISTAKE WAS NOT MADE THAT A DETERMINATION BE MADE REGARDING THE
DETAILS OF THE BELOW COST ASPECTS OF THE LOW BID AND THAT SUCH
INFORMATION BE FURNISHED TO THE APPROPRIATE GOVERNMENTAL AUTHORITY PRIOR
TO ANY AWARD OF THE PROCUREMENT, CITING, AMONG OTHER PROVISIONS OF LAW,
SECTIONS 1, 2 AND 3 OF THE SHERMAN ACT; SECTION 3 OF THE
ROBINSON-PATMAN ACT; SECTION 5 OF THE FEDERAL TRADE COMMISSION ACT, AND
41 U.S.C. 252/D). IN ADDITION TO REFERENCE TO THE FEDERAL ANTITRUST
LAW'S PROHIBITION OF SALES BELOW COSTS YOU CITE SPECIFIC STATE STATUTORY
PROHIBITIONS AGAINST SUCH SALES.
IT IS ADMINISTRATIVELY REPORTED THAT THE PROCURING AGENCY ENGINEER'S
ESTIMATE FOR THE ENTIRE QUANTITY OF MATERIALS TO BE PURCHASED WAS
$643,852, BASED ON AN ESTIMATED WEIGHT OF 1,170,640 POUNDS TOTAL AT A
RATE OF 55 CENTS PER POUND. AN INFORMAL SURVEY OF SEVERAL MAJOR
SUPPLIERS FOR PRICES ON THIS TYPE OF MATERIAL HAD INDICATED PRIOR TO
ISSUANCE OF INVITATIONS THAT A PRICE RANGE OF 42 CENTS TO 70 CENTS PER
POUND COULD BE EXPECTED. THE LOW BID SUBMITTED BY KAISER WAS DETERMINED
TO BE RESPONSIVE SINCE IT MET ALL THE REQUIREMENTS OF THE INVITATION.
ITS TOTAL BID PRICE OF $606,084 IS LESS THAN 6 PERCENT LOWER THAN THE
ENGINEER'S ESTIMATE. BY COMPUTATION, USING THE WEIGHT ON WHICH THE
ENGINEER'S ESTIMATE WAS PREPARED, THE LOW BID AMOUNTS TO SLIGHTLY MORE
THAN 51 CENTS PER POUND, WHICH IS WELL WITHIN THE EXPECTED PRICE RANGE
OF 42 TO 70 CENTS PER POUND.
AS A RESULT OF THE CONCERN EXPRESSED BY A REPRESENTATIVE OF THE
LUPTON COMPANY, PRIOR TO AWARD, THAT THE KAISER BID WAS ERRONEOUS, THE
LOW BIDDER WAS REQUESTED TO CONFIRM ITS PRICE. THIS COMPANY ADVISED THE
BONNEVILLE POWER ADMINISTRATION THAT IT HAD RECHECKED ITS CALCULATIONS,
MEMBER
SIZES, AND WEIGHT TAKE OFF, AS WELL AS ITS MATHEMATICS, AND THAT NO
SIGNIFICANT DISCREPANCY WAS FOUND AND IT VERIFIED ITS BID IN THE TOTAL
AMOUNT OF $606,084. THE QUESTION OF ERRONEOUS BID AGAIN RAISED BY YOUR
BRIEF WOULD APPEAR, THEREFORE, TO HAVE BEEN REMOVED FROM THE FURTHER
CONSIDERATION REQUIRED BY THE DECISIONS CITED BY YOU.
IT IS REPORTED ADMINISTRATIVELY THAT THE SPECIFICATIONS DESCRIBED
ALUMINUM TRANSMISSION LINE TOWERS HAVING A GENERAL OUTLINE AND A
SPECIFIED HEIGHT. THE SPECIFICATIONS INCLUDED THE CONDUCTOR SPACING AND
THE LOAD CHARACTERISTICS REQUIRED OF THE STRUCTURES. BIDDERS WERE
REQUIRED TO DEVELOP THEIR OWN SPECIFIC DESIGNS FOR THE CONSIDERATION OF
THE GOVERNMENT. THIS PERMITTED BIDDERS TO EXERCISE THEIR KNOWLEDGE OF
ENGINEERING CHARACTERISTICS OF VARIOUS SHAPES AND TYPES OF MATERIAL
FABRICATION. THE DESIGN PROPOSED BY THE LOW BIDDER WAS DETERMINED TO BE
SATISFACTORY AND AWARD WAS MADE ON THE INVITATION TO KAISER ON MARCH 22,
1966, IN THE AMOUNT OF $605,326.39. A DEDUCTION OF $757.61 WAS TAKEN BY
THE GOVERNMENT IN EXERCISING ITS OPTION NOT TO REQUIRE A PERFORMANCE
BOND OF THE CONTRACTOR.
UNDER PARAGRAPH 8/A) OF THE BIDDING INSTRUCTIONS, TERMS AND
CONDITIONS OF THE INVITATION, THE CONTRACT WAS REQUIRED TO BE AWARDED TO
"THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR
BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER
FACTORS CONSIDERED.' A "RESPONSIBLE" BIDDER IS ONE WHO MEETS THE
CRITERIA PRESCRIBED BY SECTION 1-1.310-5, FEDERAL PROCUREMENT
REGULATIONS (FPR).
OUR EXAMINATION OF SECTIONS 1, 2 AND 3 OF THE SHERMAN ACT, 15 U.S.C.,
SECS. 1, 2 AND 3; SECTION 3 OF THE ROBINSON-PATMAN ACT, 15 U.S.C. 13A;
SECTION 5 OF THE FEDERAL TRADE COMMISSION ACT, 15 U.S.C. 45 AND THE
PROVISIONS OF 41 U.S.C. 252 (D), CONSIDERED TOGETHER WITH THE PROTEST
AND THE ADMINISTRATIVE REPORT REVEALS NOTHING WHICH WOULD PRECLUDE AWARD
OF A GOVERNMENT CONTRACT TO THE LOW BIDDER IN THIS INSTANCE. FURTHER,
NOTHING IS SET FORTH IN THE CITED CODE PROVISIONS WHICH AUTHORIZES OR
REQUIRES THIS OFFICE TO CONDUCT THE TYPE OF INVESTIGATION OR TO MAKE A
DETERMINATION REGARDING THE DETAILS OF THE ALLEGED BELOW COST ASPECTS OF
THE LOW BID IN CONNECTION WITH A BID PROTEST, AS REQUESTED BY YOU.
PROVISIONS FOR ENFORCING SUCH VIOLATIONS OF THE ANTITRUST LAWS AS
ALLEGED IN YOUR BRIEF, AND REDRESS THEREFOR, ARE PROVIDED IN SECTIONS 4,
15 AND 21 OF TITLE 15, U.S. CODE, AMONG OTHERS. STILL FURTHER, NEITHER
THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT, 41 U.S.C. 251, ET
SEQ., NOR THE PROCUREMENT REGULATIONS ISSUED THEREUNDER PROHIBIT AWARDS
EVEN TO BIDDERS WHO HAVE BEEN CHARGED WITH, OR ARE BEING INVESTIGATED
FOR, ALLEGED VIOLATIONS OF THE ANTITRUST LAWS. THAT IS, IN THE ABSENCE
OF CONVICTION UNDER THE FEDERAL ANTITRUST STATUTES AND RESULTING
DEBARMENT, THERE WOULD APPEAR TO BE NO LEGAL OR PROPER BASIS FOR DENYING
A CONTRACT TO A LOW BIDDER FOR THIS REASON. SEE 1-1.605 OF THE FEDERAL
PROCUREMENT REGULATIONS.
ACCORDINGLY, THE LOW BID HAVING BEEN CONFIRMED BY THE BIDDER AND ITS
PRICE HAVING BEEN FOUND TO BE WITHIN THE EXPECTED RANGE MEASURED BY THE
ADMINISTRATIVE ESTIMATE FOR THE WORK AND MATERIALS, WE FIND NO LEGAL
BASIS FOR QUESTIONING THE AWARD MADE UNDER THE INVITATION AND YOUR
PROTEST IS DENIED.
B-158915, JUN. 17, 1966
TO SPACE AVIONICS INCORPORATED:
BY TELEFAX OF APRIL 8 AND LETTER DATED APRIL 28, 1966, YOU PROTESTED
THE AWARD OF A CONTRACT TO AIR-A-PLANE CORPORATION, A HIGHER BIDDER,
UNDER INVITATION FOR BIDS NO. 189-211-66 ISSUED ON NOVEMBER 18, 1965, BY
THE UNITED STATES NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA. THE
INVITATION COVERED THE MANUFACTURE AND DELIVERY OF 1669 EACH KITS
MODIFYING FREQUENCY GENERATOR CV-731/URC TO ACCEPT THE FREQUENCY
CONVERTER CV-1749 ( ( (UR FOR USE ON RADIO SETS AN/URC-32. THE WORK WAS
TO BE ACCOMPLISHED IN ACCORDANCE WITH MILITARY SPECIFICATION
MIL-E-16400E (NAVY) DATED JUNE 15, 1962, AND AMENDMENT NO. 5, OF AUGUST
16, 1965, THERETO.
OF THE THREE BIDS OPENED ON DECEMBER 17, 1965, THE LOWEST BID OF
TECHNICAL ACCESSORIES COMPANY OFFERING A UNIT PRICE OF $24.90 AND A
PROMPT PAYMENT DISCOUNT OF ONE-HALF PERCENT, 10 DAYS, WAS REJECTED AS
THE RESULT OF AN UNSATISFACTORY PRE-AWARD SURVEY AND NOTIFICATION FROM
THE SMALL BUSINESS ADMINISTRATION THAT THE CONCERN HAD DECLINED TO APPLY
FOR A CERTIFICATE OF COMPETENCY. YOUR BID, THE NEXT LOWEST SUBMITTED,
SET FORTH A UNIT PRICE OF $56.03 TOGETHER WITH A DISCOUNT OF 10.2
PERCENT FOR PAYMENT IN 10 DAYS, 10.1 PERCENT, 20 DAYS, AND 10 PERCENT,
30 DAYS. BUT YOUR BID WAS DISREGARDED BECAUSE IT RECITED "PROGRESS
PAYMENTS ARE REQUESTED" ON PAGE 2 UNDER THE SECTION ENTITLED "SUPPLIES
OR SERVICES AND PRICES" AND THERE WAS NO PROVISION IN THE INVITATION FOR
MAKING
PROGRESS PAYMENTS.
IT IS YOUR CONTENTION THAT EVEN THOUGH THE INVITATION DID NOT
SPECIFICALLY PROVIDE FOR PROGRESS PAYMENTS, NEITHER DID IT EXPRESSLY
DISALLOW THEM. WE HAVE IN THE PAST HELD THAT BIDDERS MAY NOT REQUEST
THE INCLUSION OF PROGRESS PAYMENT PROVISIONS IN CONTRACTS TO BE AWARDED
TO THEM UNLESS THE INVITATION EXPLICITLY CONTEMPLATES THEIR
PERMISSIBILITY AND SOLICITS BIDS ON SUCH BASIS. THUS IN B-128454 DATED
OCTOBER 11, 1956, WE STATED THAT A BID CONDITIONED UPON THE RECEIPT OF
PROGRESS PAYMENTS, WHEN NOT AUTHORIZED IN THE INVITATION, MUST BE
TREATED AS NONRESPONSIVE IN A MATERIAL RESPECT. IN B-154755, SEPTEMBER
23, 1964, WE SAID THAT THE QUESTION IS NOT WHETHER THE INVITATION MAKES
NO MENTION OF PROGRESS PAYMENTS BUT RATHER WHETHER THERE IS A PAYMENTS
CLAUSE IN THE INVITATION WHICH PRESCRIBES A PARTICULAR MODE OF PAYMENT
AND WHICH DOES NOT CONTEMPLATE THE ALLOWABILITY OF PROGRESS PAYMENTS.
CF. 38 COMP. GEN. 131 HOLDING THAT A BID CONDITIONED UPON RECEIPT OF
ANY MANNER OF PAYMENT AT VARIANCE WITH THE ADVERTISED PAYMENTS CLAUSE
MUST BE DECLARED NONRESPONSIVE. THE PRESENT INVITATION INCORPORATED BY
REFERENCE, AS THE SOLE STATEMENT ON THE SUBJECT OF CONTRACT PAYMENTS,
ARTICLE 7 OF STANDARD FORM 32, JUNE 1964 EDITION, WHICH PROVIDES FOR
PAYMENTS ONLY FOR ITEMS WHICH HAVE BEEN DELIVERED TO AND ACCEPTED BY THE
GOVERNMENT.
YOU ARGUE THAT THE GRANTING OF PROGRESS PAYMENTS WAS NOT AND SHOULD
NOT HAVE BEEN TREATED AS A CONDITION OF YOUR BID, AND THAT THEREFORE THE
NAVY SHOULD HAVE AWARDED YOU THE CONTRACT AS THE LOWEST RESPONSIVE
BIDDER WITHOUT A PROGRESS PAYMENTS PROVISION. AS WAS OBSERVED IN
B-154755 REFERRED TO ABOVE:
"WHILE WE WOULD AGREE THAT IN THE ORDINARY SENSE THE WORD "REQUEST"
IS PRECATORY IN NATURE, ITS PRECISE MEANING MUST DEPEND UPON THE
EXISTING CIRCUMSTANCES. * * * SINCE THE INVITATION PROVIDED FOR A
METHOD OF PAYMENT WE THINK IT NOT UNREASONABLE TO VIEW YOUR REQUEST AS
SOMETHING MORE THAN A MERE WISH OR DESIRE. HAD YOUR BID BEEN ACCEPTED
IT COULD HAVE BEEN ARGUED THAT THE GOVERNMENT ACCEPTED YOUR REQUEST FOR
PROGRESS PAYMENTS AND WAS BOUND TO MAKE PAYMENT IN ACCORDANCE THEREWITH.
IF, AS SUGGESTED, YOUR REQUEST WAS IN THE NATURE OF MERE HOPE OR WISH
AND YOU INTENDED TO ACCEPT A CONTRACT SUBJECT TO THE "PAYMENTS" ARTICLE,
IT WAS INCUMBENT UPON YOU TO CLEARLY EXPRESS SUCH INTENTION. * * * IT
IS A RULE OF LONG STANDING THAT WHERE TWO POSSIBLE MEANINGS CAN BE
REACHED FROM THE TERMS OF A BID A BIDDER MAY NOT BE PERMITTED TO EXPLAIN
WHAT HE INTENDED SINCE HE WOULD THEN BE IN A POSITION TO AFFECT THE
RESPONSIVENESS OF HIS BID. * * *.'
AS A SMALL BUSINESS CONCERN YOU MAINTAIN THAT THE INVITATION SHOULD
HAVE PERMITTED REQUESTS FOR PROGRESS PAYMENTS BECAUSE OF THE ANNOUNCED
PURPOSE OF APPENDIX E TO THE ARMED SERVICES PROCUREMENT REGULATION,
PROMULGATED IN IMPLEMENTATION OF 10 U.S.C. 2307 (A), TO FACILITATE AND
ACCELERATE THE MAKING OF PROGRESS PAYMENTS REQUESTED BY SMALL BUSINESS
CONCERNS BIDDING ON GOVERNMENT CONTRACTS. E-001 AND E-204. THE
REGULATIONS REQUIRE THE INCLUSION OF A PROVISION CONTEMPLATING PROGRESS
PAYMENTS IN INVITATIONS ONLY WHEN THE PERIOD BETWEEN THE INITIATION OF
WORK AND THE FIRST DELIVERY OF PRODUCTION UNITS MAY BE EXPECTED TO
EXCEED SIX MONTHS IN DURATION. CF. B-149730 DATED OCTOBER 12, 1962. WE
COMPUTE THE PERTINENT TIME PERIOD HERE TO BE LESS THAN SIX MONTHS AND
THE RECORD SHOWS THAT IF THE FIRST ARTICLE IS APPROVED WHEN AND AS
SUBMITTED, AND DELIVERIES ARE MADE AS SPECIFIED, THE SUCCESSFUL
CONTRACTOR IS ENTITLED TO REQUEST AND RECEIVE A MINIMUM OF $49,500 IN
PARTIAL PAYMENTS WITHIN 180 DAYS AFTER THE DATE OF THE CONTRACT. THIS
REPRESENTS MORE THAN HALF OF THE TOTAL CONTRACT PRICE. WHILE WE AGREE
THAT YOU MAY NOT HAVE BEEN ADEQUATELY FOREWARNED IN THIS INSTANCE THAT A
PROGRESS PAYMENTS CLAUSE COULD NOT BE INCLUDED IN THE ULTIMATE CONTRACT
CONTRARY TO THE CLEAR IMPORT OF SECTION E-504.6 OF THE APPLICABLE
REGULATIONS, THE DISCRETION TO DETERMINE WHETHER OR NOT PROVISION FOR
PROGRESS PAYMENTS IS TO BE MADE IN INVITATIONS IS REPOSED IN THE
CONTRACTING OFFICER AND OUR OFFICE IS WITHOUT AUTHORITY TO OBJECT TO HIS
FAILURE TO EXERCISE IT ON THE FACTS OF THIS CASE.
B-158915, JUN. 17, 1966
TO SECRETARY OF THE NAVY:
BY LETTER DATED APRIL 27, 1966, SIGNED BY THE ASSISTANT CHIEF FOR
PURCHASING (SANDA 642), BUREAU OF SUPPLIES AND ACCOUNTS, YOUR DEPARTMENT
FORWARDED A REPORT ON THE PROTEST OF SPACE AVIONICS, INCORPORATED,
AGAINST THE AWARD OF A CONTRACT TO A HIGHER BIDDER UNDER INVITATION FOR
BIDS NO. 189-211-66 ISSUED ON NOVEMBER 18, 1965, BY THE UNITED STATES
NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA.
PROTESTANT HAS STATED THAT IT WAS NOT FOREWARNED PRIOR TO BID OPENING
THAT A PROGRESS PAYMENTS CLAUSE COULD NOT BE INCLUDED IN THE ULTIMATE
CONTRACT. IT IS NOTED THAT IF NO EFFORT WAS MADE TO INFORM PROSPECTIVE
BIDDERS OF THIS CIRCUMSTANCE, THE INJUNCTION SET FORTH AT SECTION
E-504.6, APPENDIX E TO THE ARMED SERVICES PROCUREMENT REGULATION, THAT
THE RECIPIENTS OF SOLICITATIONS BE KEPT AWARE WHEN INVITATIONS DO NOT
PROVIDE FOR PROGRESS PAYMENTS THAT PROGRESS PAYMENT CLAUSES CANNOT BE
INCLUDED IN THE CONTRACT AT THE TIME OF AWARD, WAS NOT FOLLOWED.
B-159076, JUN. 17, 1966
TO MR. FRED W. SHIELDS:
REFERENCE IS MADE TO YOUR LETTER OF APRIL 25, 1966, REQUESTING
RECONSIDERATION OF THE CLAIM OF JAMES EUGENE NEWELL, GMGC, USN
(RETIRED), FOR INCREASED RETIRED PAY, WHICH WAS DISALLOWED BY GENERAL
ACCOUNTING OFFICE SETTLEMENT DATED APRIL 21, 1966.
THE RECORD INDICATES THAT MR. NEWELL WAS ENLISTED IN THE REGULAR NAVY
FROM MARCH 14, 1935, TO APRIL 28, 1939, A PERIOD OF 4 YEARS, 1 MONTH,
AND 15 DAYS; FROM JUNE 19, 1939, TO JUNE 22, 1943, A PERIOD OF 4 YEARS
AND 4 DAYS; FROM JUNE 23, 1943, TO JUNE 22, 1947, A PERIOD OF 4 YEARS;
FROM JUNE 23, 1947, TO MAY 24, 1951, A PERIOD OF 3 YEARS, 11 MONTHS, AND
2 DAYS; AND FROM MAY 25, 1951, TO NOVEMBER 15, 1954, A PERIOD OF 3
YEARS, 5 MONTHS, AND 21 DAYS. HE WAS TRANSFERRED TO THE FLEET RESERVE
WITH RETAINER PAY EFFECTIVE NOVEMBER 16, 1954. FROM NOVEMBER 17, 1936,
TO JANUARY 19, 1937, A PERIOD OF 2 MONTHS AND 3 DAYS, HE WAS ABSENT FROM
DUTY ON ACCOUNT OF INJURY, SICKNESS OR DISEASE RESULTING FROM HIS OWN
MISCONDUCT.
IT APPEARS THAT AT THE TIME OF TRANSFER TO THE FLEET RESERVE THE NAVY
CREDITED HIM WITH 4 YEARS, 1 MONTH, AND 15 DAYS IN HIS FIRST ENLISTMENT,
WITHOUT DEDUCTION ON ACCOUNT OF THE "SKMC" ABSENCE OF 2 MONTHS AND 3
DAYS FROM NOVEMBER 17, 1936, TO JANUARY 19, 1937, AND WITH ONLY 3 YEARS,
11 MONTHS, AND 2 DAYS FOR THE ENLISTMENT BEGINNING IN 1947, WITHOUT
CREDIT FOR 28 DAYS CONSTRUCTIVE TIME TO WHICH HE WAS ENTITLED BECAUSE OF
HIS EARLY DISCHARGE IN 1951. IN OTHER WORDS, AT THAT TIME HE WAS
CREDITED WITH A TOTAL OF 19 YEARS, 6 MONTHS, AND 12 DAYS FOR TRANSFER
PURPOSES.
YOU SAY THAT MR. NEWELL WAS CREDITED WITH 20 YEARS' SERVICE FOR
TRANSFER PURPOSES FOR MORE THAN 10 YEARS, BUT THAT RECENTLY THE NAVY
FINANCE CENTER HAS TAKEN THE POSITION THAT HE IS ENTITLED TO CREDIT FOR
ONLY 19 YEARS RATHER THAN 20 YEARS ACTIVE NAVAL SERVICE IN THE
COMPUTATION OF HIS RETIRED PAY. YOU SUGGEST THAT THE NAVY ACTED
ERRONEOUSLY SINCE, IN YOUR VIEW, EVEN IF CREDIT IS WITHHELD FOR THE
PERIOD NOVEMBER 17, 1936, TO JANUARY 19, 1937, WHEN HE WAS ABSENT FROM
DUTY BECAUSE OF INJURY, SICKNESS, OR DISEASE RESULTING FROM HIS OWN
MISCONDUCT (UNDER THE ACT OF AUGUST 29, 1916, CH. 417, 39 STAT. 580, AS
AMENDED, 34 U.S.C. 183, 1952 ED.), HIS RETIRED PAY SHOULD BE COMPUTED ON
THE PAY OF AN ENLISTED MAN WITH OVER 20 YEARS OF SERVICE IF PROPER
CREDIT IS GIVEN FOR CONSTRUCTIVE SERVICE. WHILE YOU SAY THAT HIS ENTIRE
SERVICE AMOUNTS TO 19 YEARS, 4 MONTHS, AND 8 DAYS COMPUTED ON A
DAY-FOR-DAY BASIS AND 19 YEARS, 4 MONTHS, AND 12 DAYS WHEN GIVEN CREDIT
FOR HIS CONSTRUCTIVE SERVICE (LESS TIME LOST ON ACCOUNT OF MISCONDUCT),
IT IS NOT KNOWN HOW YOU ARRIVE AT SUCH CONCLUSIONS SINCE IT APPEARS THAT
THE CREDITING OF 4 FULL YEARS FOR EACH OF THE PERIODS MARCH 14, 1935, TO
APRIL 28, 1939, AND JUNE 23, 1947 TO MAY 24, 1951, LEAVES HIM WITH LESS
THAN 19 1/2 YEARS OF SERVICE FOR LONGEVITY PAY PURPOSES. COMPUTED ON
THAT BASIS HIS CREDITABLE SERVICE IN THE BASIC PAY FACTOR IS AS FOLLOWS:
TABLE
YEARS MONTHS DAYS
MARCH 14, 1935, TO APRIL 28, 1939 4 0 0
JUNE 19, 1939, TO JUNE 22, 1943 4 0 4
JUNE 23, 1943, TO JUNE 22, 1947 4 0 0
JUNE 23, 1947, TO MAY 24, 1951 4 0 0
MAY 25, 1951, TO NOVEMBER 15, 1954 3 5 21
TOTAL CREDITABLE SERVICE 19 5 25
ACCORDINGLY, MR. NEWELL IS NOT ENTITLED TO CREDIT FOR 20 YEARS'
SERVICE FOR LONGEVITY PAY PURPOSES IN THE BASIC PAY FACTOR IN THE
COMPUTATION OF HIS RETIRED PAY. THE SETTLEMENT OF APRIL 21, 1966, WAS
CORRECT AND THEREFORE IS SUSTAINED.
B-159276, JUN. 17, 1966
TO AUTHORIZED CERTIFYING OFFICER, BUREAU OF MINES, UNITED STATES
DEPARTMENT OF THE INTERIOR DENVER FEDERAL CENTER:
YOUR LETTER OF MAY 24, 1966, REQUESTS OUR DECISION WHETHER YOU MAY
CERTIFY FOR PAYMENT THE VOUCHER TRANSMITTED THEREWITH IN FAVOR OF
WILLIAM P. ZELINSKI FOR $31.84 REPRESENTING A LUMP-SUM LEAVE PAYMENT FOR
16 HOURS ANNUAL LEAVE.
YOU REPORT THAT MR. ZELINSKI RECEIVED A CAREER-CONDITIONAL
APPOINTMENT AS A STUDENT TRAINEE ON JUNE 25, 1964. DURING THE PERIOD
JUNE 25 THROUGH SEPTEMBER 3, 1964 (A TOTAL OF 71 DAYS), THE EMPLOYEE
WORKED FULL TIME WITH A REGULARLY SCHEDULED TOUR OF DUTY. EFFECTIVE
SEPTEMBER 4, 1964, MR. ZELINSKI'S EMPLOYMENT STATUS WAS CHANGED TO ON
INTERMITTENT BASIS BY MEANS OF A PAY ADJUSTMENT ACTION. IT APPEARS THAT
NO SEPARATION OR TRANSFER WAS EFFECTED AT THAT TIME. DURING THE PERIOD
SEPTEMBER 4, 1964, TO MAY 25, 1965, THE EMPLOYEE REMAINED IN AN
INTERMITTENT STATUS WITH NO PRESCRIBED TOUR OF DUTY. ON MAY 25, 1965,
HE RETURNED TO A FULL-TIME STATUS WITH A REGULAR TOUR OF DUTY AND
RENDERED FULL-TIME SERVICE UNTIL SEPTEMBER 10, 1965, WHEN HIS EMPLOYMENT
AGAIN WAS CHANGED TO AN INTERMITTENT BASIS. HE CONTINUED TO SERVE AS AN
INTERMITTENT EMPLOYEE UNTIL HIS RESIGNATION ON DECEMBER 9, 1965.
MR. ZELINSKI WAS NOT CREDITED WITH ANNUAL LEAVE FOR THE PERIOD JUNE
25 THROUGH SEPTEMBER 3, 1964, SINCE HE PERFORMED ONLY 71 DAYS ON
FULL-TIME SERVICE. UPON HIS RETURN TO A FULL-TIME STATUS ON MAY 25,
1965, IT WAS ADMINISTRATIVELY DETERMINED THAT HE WOULD HAVE TO COMMENCE
A NEW 90-DAY QUALIFYING PERIOD IN ACCORDANCE WITH SECTION 203/I) OF THE
ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED. YOU SUGGEST THAT THE
EMPLOYEE MAY BE CREDITED WITH ANNUAL LEAVE FOR THE PERIOD JUNE 25
THROUGH SEPTEMBER 3, 1964, EITHER ON THE THEORY THAT (1) HE COMPLETED
THE 90-DAY QUALIFYING PERIOD ON JUNE 12, 1965 (A COMBINATION OF THE 71
DAYS OF FULL-TIME SERVICE RENDERED DURING THE PERIOD JUNE 25 THROUGH
SEPTEMBER 3, 1964, AND 19 DAYS FULL-TIME SERVICE RENDERED DURING THE
PERIOD MAY 25 THROUGH JUNE 12, 1965), OR (2) HE COMPLETED THE 90-DAY
QUALIFYING PERIOD ON SEPTEMBER 22, 1964 (A COMBINATION OF THE 71 DAYS OF
FULL-TIME SERVICE DURING THE PERIOD JUNE 25 THROUGH SEPTEMBER 3, 1964,
AND 19 DAYS OF THE FOLLOWING INTERMITTENT SERVICE).
WE ARE CONCERNED HERE WITH THE APPLICATION OF SECTION 203/I) OF THE
ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 2062/I), WHICH
PROVIDES:
"NOTWITHSTANDING THE PROVISIONS OF SUBSECTION (A) OF THIS SECTION, AN
OFFICER OR EMPLOYEE SHALL BE ENTITLED TO ANNUAL LEAVE UNDER THIS CHAPTER
ONLY AFTER HAVING BEEN EMPLOYED CURRENTLY FOR A CONTINUOUS PERIOD OF
NINETY DAYS UNDER ONE OR MORE APPOINTMENTS WITHOUT BREAK IN SERVICE. IN
ANY CASE IN WHICH AN OFFICER OR EMPLOYEE COMPLETES A PERIOD OF
CONTINUOUS EMPLOYMENT OF NINETY DAYS THERE SHALL BE CREDITED TO HIM AN
AMOUNT OF ANNUAL LEAVE EQUAL TO THE AMOUNT WHICH, BUT FOR THIS
SUBSECTION WOULD HAVE ACCRUED TO HIM UNDER SUBSECTION (A) OF THIS
SECTION DURING SUCH PERIOD.'
IN 31 COMP. GEN. 215, WE HELD, QUOTING FROM THE SYLLABUS:
"UNDER THE PROVISIONS OF SECTION 202/B) OF THE ANNUAL AND SICK LEAVE
ACT OF 1951, EXCLUDING FROM THE LEAVE BENEFITS UNDER THE ACT PART-TIME
OFFICERS AND EMPLOYEES (EXCEPT HOURLY EMPLOYEES IN THE FIELD SERVICE OF
THE POST OFFICE DEPARTMENT) FOR WHOM THERE HAS NOT BEEN ESTABLISHED A
REGULAR TOUR OF DUTY DURING EACH WORKWEEK, EMPLOYEES WITH
WHEN-ACTUALLY-EMPLOYED APPOINTMENTS WHOSE REGULAR TOUR OF DUTY HAS NOT
BEEN PRESCRIBED IN ADVANCE AND NOT ENTITLED TO THE LEAVE BENEFITS OF THE
ACT EVEN THOUGH THEY MIGHT ACTUALLY WORK FULL TIME FOR LONG PERIODS.'
IN 35 COMP. GEN. 638, WE HELD:
"SECTION 203/I) SUSPENDS ANY CREDIT FOR ANNUAL LEAVE "UNDER THIS
TITLE" UNTIL THE EMPLOYEE SHALL HAVE BEEN EMPLOYED CONTINUOUSLY FOR A
PERIOD OF 90 DAYS. THE CONCLUSION IS REQUIRED THAT THE 90-DAY
EMPLOYMENT PERIOD MUST BE IN A POSITION NOT EXCLUDED FROM THE ACCRUAL OF
LEAVE UNDER SECTION 202 OF THAT ACT UNLESS SUCH POSITION BE ONE IN WHICH
LEAVE IS TRANSFERABLE UNDER SECTION 205 OF THE ACT, 5 U.S.C. 2064. * *
* "
SINCE MR. ZELINSKI SERVED ON AN INTERMITTENT BASIS WITH NO PRESCRIBED
REGULAR TOUR OF DUTY DURING THE PERIOD SEPTEMBER 4, 1964, TO MAY 25,
1965, IT FOLLOWS FROM THE ABOVE THAT NO PART OF SUCH PERIOD OF
INTERMITTENT SERVICE MAY BE CREDITED TOWARD THE 90-DAY QUALIFYING
PERIOD. HOWEVER, THIS DOES NOT MEAN THAT IN THE CIRCUMSTANCES PRESENTED
SUCH PERIOD OF INTERMITTENT SERVICE NECESSARILY CONSTITUTES A "BREAK IN
SERVICE" WITHIN THE MEANING OF SECTION 203 (I) ABOVE.
IN 37 COMP. GEN. 523 WE CONSIDERED THE CASE OF A GROUP OF STUDENT
TRAINEES WHO HELD CAREER-CONDITIONAL APPOINTMENTS UNDER WHICH THEY
PERFORMED FULL-TIME SERVICE WITH REGULAR TOURS OF DUTY DURING THE
SUMMER. UPON RESUMPTION OF THE SCHOOL YEAR EACH STUDENT EMPLOYEE WAS
CHANGED TO A WAE INTERMITTENT BASIS BY THE ISSUANCE OF A PAY ADJUSTMENT
ACTION ON A PAYROLL CHANGE SLIP BUT CONTINUED TO HOLD THE SAME
CAREER-CONDITIONAL APPOINTMENT. UNDER THE SPECIFIC FACTS OF THAT CASE,
WE HELD THAT THE PERIOD OF INTERMITTENT EMPLOYMENT DID NOT CONSTITUTE A
BREAK IN SERVICE SO AS TO REQUIRE A NEW 90-DAY QUALIFYING PERIOD UPON
THE STUDENT'S RETURN TO A FULL-TIME STATUS THE FOLLOWING SUMMER.
CONSISTENT WITH THAT DECISION WE HOLD THAT MR. ZELINSKI DID NOT HAVE TO
BEGIN A NEW 90-DAY QUALIFYING PERIOD UPON HIS RETURN TO FULL-TIME
EMPLOYMENT ON MAY 25, 1965, BUT THAT HE MAY BE REGARDED AS HAVING
COMPLETED THE 90-DAY QUALIFYING PERIOD ON JUNE 12, 1965, AS SUGGESTED IN
YOUR LETTER.
THEREFORE, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED
FOR PAYMENT IF OTHERWISE CORRECT.
B-159285, JUN. 17, 1966
TO FEDERAL HIGHWAY ADMINISTRATOR, BUREAU OF PUBLIC ROADS, DEPARTMENT
OF COMMERCE:
REFERENCE IS MADE TO A COPY OF A LETTER DATED FEBRUARY 15, 1966, AND
ENCLOSURES, FROM B. M. FRENCH, CONTRACTING OFFICER, PORTLAND, OREGON,
REQUESTING OUR ADVICE AND INSTRUCTIONS AS TO THE PARTY TO WHOM FINAL
PAYMENT UNDER CONTRACT NO. CPR 8-1365 SHOULD BE MADE.
THE SUBJECT CONTRACT WAS AWARDED TO WESTERN STATES LEASING COMPANY ON
MAY 4, 1964, FOR CONSTRUCTION OF OREGON FOREST HIGHWAY PROJECT 33-2/1),
PENDLETON-JOHN DAY HIGHWAY, IN THE ESTIMATED TOTAL AMOUNT OF
$370,323.50, AT UNIT PRICE RATES FIXED BY THE CONTRACT. PERFORMANCE AND
PAYMENT BONDS, EACH IN THE AMOUNT OF $185,161.75, WERE FURNISHED BY THE
OREGON AUTOMOBILE INSURANCE COMPANY. ON SEPTEMBER 23, 1964, THE
CONTRACTOR ASSIGNED ALL THE MONEYS DUE OR TO BECOME DUE UNDER THE
CONTRACT TO THE FIRST NATIONAL BANK OF PORTLAND PURSUANT TO THE
ASSIGNMENT OF CLAIMS ACT OF 1940, AS AMENDED, 31 U.S.C. 203. THE
CONTRACTOR WAS DECLARED IN DEFAULT ON JUNE 9, 1965, AND ITS RIGHT TO
PROCEED WITH THE WORK THEREUNDER WAS TERMINATED. BY LETTER OF THE SAME
DATE THE SURETY WAS FURNISHED A COPY OF THE TERMINATION NOTICE, AND
ADVISED AS FOLLOWS:
"* * * IN SITUATIONS OF THIS KIND, IT IS THE PRACTICE OF THE BUREAU
OF PUBLIC ROADS TO PERMIT THE SURETY, IF IT SO DESIRES, TO COMPLETE THE
UNFINISHED WORK WITH A CONTRACTOR OF ITS CHOICE, SUBJECT TO THE
CONDITION THAT THE QUALIFICATIONS OF SUCH CONTRACTOR ARE ACCEPTABLE TO
THE GOVERNMENT. IN SUCH EVENT PAYMENT FOR WORK PERFORMED FROM THE DATE
OF DEFAULT TO THE DATE OF COMPLETION WILL BE MADE TO THE SURETY AT THE
UNIT PRICES SET FORTH IN THE CONTRACT, AND THE SURETY WILL BE RECOGNIZED
AS OCCUPYING THE SAME POSITION AS THE ORIGINAL CONTRACTOR IN COMPLETING
THE WORK.
"IT IS UNDERSTOOD THAT SUCH ARRANGEMENT IS SIMPLY TO PERMIT THE
SURETY TO COMPLETE THE WORK UNDER SAID CONTRACT AND WILL IN NO WAY
CHANGE OR ALTER THE CONDITIONS OF THE CONTRACT PERFORMANCE AND PAYMENT
BONDS. NO FURTHER PAYMENTS WILL BE MADE WITH RESPECT TO EARNINGS BY THE
DEFAULTED CONTRACTOR PRIOR TO THE DATE OF DEFAULT UNTIL THE PROJECT IS
COMPLETED AND THE AMOUNT OF ANY EXCESS COSTS OCCASIONED TO THE
GOVERNMENT BY REASON THEREOF HAS BEEN DETERMINED.'
UNDER DATE OF JUNE 17, 1965, THE SURETY, THROUGH ITS ATTORNEY,
FORMALLY ADVISED THE CONTRACTING ACTIVITY THAT IT DESIRED TO COMPLETE
THE WORK CALLED FOR UNDER THE CONTRACT, CONFIRMING VERBAL ADVICE TO THAT
EFFECT SAID TO HAVE BEEN GIVEN AT A MEETING ON JUNE 11. THE WORK WAS
PERFORMED BY THE SURETY'S CONTRACTOR AND ACCEPTED BY THE GOVERNMENT ON
SEPTEMBER 14, 1965. THE SURETY WAS PAID ON THE BASIS OF UNIT PRICES
FIXED BY THE CONTRACT, THE SUM OF $159,454.96 FOR THE COMPLETION WORK,
AND PAID ITS CONTRACTOR A TOTAL OF $180,200.40 IN EXCESS THEREOF. IN
ADDITION, THE RECORD INDICATES THAT THE SURETY PAID $129,271.57 TO
PERSONS WHO HAD NOT BEEN PAID BY WESTERN STATES FOR LABOR AND MATERIAL
FURNISHED TO IT PRIOR TO DEFAULT.
THERE REMAINS UNPAID BY THE GOVERNMENT A BALANCE OF $38,530.03
REPRESENTING EARNINGS BY THE CONTRACTOR PRIOR TO DEFAULT AFTER DEDUCTION
OF LIQUIDATED DAMAGES ASSESSED UNDER THE CONTRACT FOR DELAY, AND TAXES
PAID TO THE INTERNAL REVENUE SERVICE ON A LEVY AGAINST THE CONTRACTOR.
THE FILE SUBMITTED BY THE CONTRACTING OFFICER INDICATES THAT THE
GOVERNMENT HAS NO INTEREST IN THE AMOUNT EARNED BY THE CONTRACTOR AND
REMAINING UNPAID, AND IS MERELY A STAKEHOLDER THEREOF. IN A LETTER
DATED JANUARY 26, 1966, THE ASSIGNEE BANK ACKNOWLEDGED SATISFACTION OF
THE CONTRACTOR'S OBLIGATION TO IT AND THAT IT HAS NO CLAIM AGAINST ANY
MONEYS DUE UNDER THE CONTRACT. THE SURETY HAS PRESENTED ITS CLAIM FOR
THE BALANCE BY VIRTUE OF ITS RIGHTS OF SUBROGATION.
IN THESE CIRCUMSTANCES, IT IS THE POSITION OF OUR OFFICE THAT IN THE
ABSENCE OF ANY CLAIM BY THE GOVERNMENT AGAINST THE CONTRACTOR THE
COMPLETING SURETY IS ENTITLED TO THE FUNDS UNPAID AND STILL OWING BY THE
GOVERNMENT TO THE PRINCIPAL UNDER THE CONTRACT, TO THE EXTENT OF THE
SURETY'S ACTUAL COST OF COMPLETION OF THE CONTRACT, EXCLUSIVE OF ANY
EXPENDITURES UNDER THE PAYMENT BOND. B-157625, SEPTEMBER 17, 1965; SEE
ALSO, 31 COMP. GEN. 103, 108; 40 ID. 85, 888. SINCE IN THIS CASE THE
COSTS OF COMPLETION EXCEED THE MONEY IN THE HANDS OF THE GOVERNMENT, THE
$38,530.03 MAY PROPERLY BE PAID TO THE SURETY. A COPY OF THIS DECISION
SHOULD BE ATTACHED TO THE VOUCHER.
B-159340, JUN. 16, 1966
TO MIDWEST WASTE MATERIAL COMPANY:
REFERENCE IS MADE TO YOUR LETTER DATED MARCH 29, 1966, REQUESTING THE
CANCELLATION OF CONTRACT 21-6031-001 WITH THE DEFENSE LOGISTICS SERVICES
CENTER FOR THE PURCHASE OF CERTAIN SCRAP CLOTH. YOUR CONTENTION IS THAT
THE DESCRIPTIONS OF ITEMS 118 "COTTON RAGS, SCRAP: - CONSISTING OF
SHIRTS, TROUSERS, BLOUSES, SKIRTS, ETC.' AND 119 "WOOL RAGS, SCRAP -
CONSISTING OF TROUSERS, COATS, SKIRTS, ETC.' ARE INCORRECT IN THAT THE
MATERIAL WAS ALSO MUTILATED. THE AGENCY CONTENDS THAT MUTILATION REFERS
TO THE CONDITION OF THE PROPERTY, UPON WHICH THERE IS AN EXPRESS
DISCLAIMER OF WARRANTY BY THE GOVERNMENT, WHILE YOUR POSITION IS THAT
"MUTILATED" IS A DESCRIPTIVE TERM AND THAT YOU ARE PROTECTED BY THE
GUARANTEED DESCRIPTIONS CLAUSE OF SALES INVITATION 21-6031.
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY CONTAINS THE FOLLOWING
PERTINENT DEFINITIONS:
"RAG * * * A WASTE PIECE OF CLOTH TORN OR CUT OFF (AS FROM A FABRIC
OR GARMENT) * * * RAGS PL: REMNANTS OF USED OR UNUSED CLOTH AND
DISCARDED CLOTHING * * * AN UNEVENLY SHAPED OR TORN FRAGMENT * * *.
"SCRAP * * * A SMALL DETACHED PIECE * * *.
"MUTILATE * * * TO CUT UP OR ALTER RADICALLY AS TO MAKE IMPERFECT * *
*.'
DEFENSE DISPOSAL MANUAL 4160.1 CONTAINS THE FOLLOWING APPLICABLE
DEFINITIONS:
"108. SCRAP. PROPERTY THAT HAS NO VALUE EXCEPT FOR ITS BASIC
MATERIAL CONTENT * * *.
"68. MUTILATION. THE ACT OF MAKING MATERIAL UNFIT FOR ITS INTENDED
PURPOSES BY CUTTING, TEARING, SCRATCHING, CRUSHING, BREAKING, PUNCHING,
SEARING, BURNING, NEUTRALIZING, ETC.'
INTERPRETING THE SALES INVITATION IN LIGHT OF THESE DEFINITIONS, WOOL
AND COTTON TROUSERS, COATS, SKIRTS, ETC., EITHER IN WHOLE ARTICLES OR
SMALL DETACHED PIECES AND FRAGMENTS, WERE OFFERED FOR SALE. SINCE THIS
PROPERTY WAS AVAILABLE FOR DELIVERY, WE FIND NOTHING MISLEADING ABOUT
THE DESCRIPTION. THE METHOD BY WHICH THE ITEMS WERE PUT IN THEIR
PRESENT STATE--- BY CUTTING AND TEARING--- IS NOT MATERIAL TO THE
DESCRIPTION. IN OTHER WORDS, THE ADDITION OF THE TERM ,MUTILATED" IS
UNNECESSARY FOR A SUFFICIENT DESCRIPTION.
SINCE THE MUTILATION OF THE CLOTH REFERRED TO ITS CONDITION AND THE
EXPRESS DISCLAIMER OF WARRANTY REMOVES ANY WARRANTY AS TO ITS CONDITION,
W. E. HEDGER CO. V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED 284 US
676, THE DUTY FELL UPON YOUR COMPANY AS A PROSPECTIVE BIDDER, TO INSPECT
THE ITEMS. HAVING FAILED TO DO SO, YOU ARE NOT ENTITLED TO RELIEF FROM
YOUR OBLIGATION UNDER THE CONTRACT. PAXTON-MITCHELL COMPANY V. UNITED
STATES, 172 F.SUPP. 463.
B-157217, JUN. 15, 1966
TO INSTRUMENT SYSTEMS CORPORATION:
WE HAVE YOUR LETTER OF JUNE 1, 1966, WITH FURTHER REFERENCE TO THE
PERFORMANCE OF LABOR SURPLUS AREA SET-ASIDE CONTRACT NO. N600/19/64199
BY THE ASTRONAUTICS CORPORATION OF AMERICA. YOU ALLEGE THAT ALTHOUGH
ASTRONAUTICS HAS ISSUED PURCHASE ORDERS IN THE AMOUNT OF $93,257 TO THE
ELECTRONIC INSTRUMENTS CORP., HURLEY, WISCONSIN, A SUBSTANTIAL PORTION
OF THIS WORK HAS BEEN SUBCONTRACTED OUT OF THE HURLEY LABOR SURPLUS AREA
TO OTHER SUPPLIERS. YOU THEREFORE CONCLUDE THAT ASTRONAUTICS IS STILL
TECHNICALLY IN VIOLATION OF ITS SET-ASIDE CONTRACT.
IN THE ABSENCE OF EVIDENCE WHICH WOULD SUBSTANTIATE YOUR ALLEGATIONS,
NO ACTION WITH RESPECT THERETO WILL BE TAKEN BY OUR OFFICE. IN ANY
EVENT, YOUR COMPLAINT HAS REFERENCE TO THE MANNER IN WHICH ASTRONAUTICS
IS PERFORMING ITS CONTRACT. WE HAVE NO AUTHORITY TO OVERSEE THE
PERFORMANCE OF GOVERNMENT CONTRACTS; RATHER, THE COGNIZABLE PROCUREMENT
AGENCY IS CHARGED WITH THE RESPONSIBILITY OF ADMINISTERING ITS CONTRACTS
IN ACCORDANCE WITH THEIR TERMS AND CONDITIONS. IT IS THEREFORE
SUGGESTED THAT YOU COMMUNICATE YOUR COMPLAINT TO THE PROPER OFFICE OF
THE DEPARTMENT OF THE NAVY.
B-158797, JUN. 15, 1966
TO MR. ROBERT D. KIRKPATRICK:
WE REFER TO YOUR LETTER OF MAY 25, 1966, CONCERNING YOUR CLAIM FOR
PER DIEM ALLOWANCE WHILE YOU WERE PERFORMING DUTY AT SOMERVILLE, TEXAS,
AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY.
AS EXPLAINED TO YOU IN OUR DECISIONS OF APRIL 8 AND MAY 19, 1966, THE
DOCUMENTARY EVIDENCE OF RECORD HERE ESTABLISHES THAT SOMERVILLE, TEXAS
(NOT FORT WORTH, TEXAS, THE DIVISIONAL HEADQUARTERS OF YOUR ACTIVITY),
HAD PROPERLY BEEN DESIGNATED AS YOUR OFFICIAL DUTY STATION FOR THE
PERIOD IN QUESTION. ASIDE FROM THE FACT THAT THE TRAVEL ORDER DIRECTING
YOUR TRAVEL FROM FORT WORTH TO SOMERVILLE DID NOT AUTHORIZE A PER DIEM
ALLOWANCE EXCEPT FOR TRAVEL TIME, SECTION 6.8 OF THE STANDARDIZED
GOVERNMENT TRAVEL REGULATIONS EXPRESSLY PROHIBITS PER DIEM ALLOWANCE AT
AN EMPLOYEE'S PERMANENT DUTY STATION. SEE ALSO SECTION 3 OF THE TRAVEL
EXPENSE ACT OF 1949, AS AMENDED, 5 U.S.C. 836, WHICH AUTHORIZES THE
PRESCRIBING OF A PER DIEM ALLOWANCE FOR FEDERAL EMPLOYEES ONLY WHEN THEY
ARE "TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS
OF DUTY; " AND SECTION 1.5 OF THE TRAVEL REGULATIONS PROVIDING, AMONG
OTHER THINGS, THAT ,DESIGNATED POST OF DUTY AND OFFICIAL STATION MEAN
ONE AND THE SAME * * *.'
WE HAVE CAREFULLY REVIEWED YOUR CLAIM IN THE DECISIONS REFERRED TO
ABOVE; AND YOUR PRESENT LETTER PRESENTS NOTHING NOT HERETOFORE
CONSIDERED IN ARRIVING AT OUR CONCLUSION. THEREFORE, OUR PRIOR ACTION
ON YOUR CLAIM IS SUSTAINED.
ANY FURTHER REQUEST FROM YOU FOR A REVIEW OF YOUR CLAIM, NOT
SUPPORTED BY NEW AND SUBSTANTIAL
B-159080, JUN. 15, 1966
TO SECOND LIEUTENANT GERALD W. BYRN, FC, USA:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 20, 1966, IN EFFECT
REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED APRIL 1, 1966, WHICH
DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM FOR THE PERIOD AUGUST 11
TO SEPTEMBER 2, 1965, INCIDENT TO TEMPORARY DUTY AT FORT BENJAMIN
HARRISON, INDIANA.
BY LETTER ORDERS A-06-1116 DATED JUNE 9, 1965, YOU WERE DIRECTED TO
REPORT TO HEADQUARTERS FIFTH LOGISTICS COMMAND, FORT BRAGG, NORTH
CAROLINA, FOR ACTIVE DUTY, WITH TEMPORARY DUTY EN ROUTE AT THE ARMY
SCHOOL CENTER/POST HEADQUARTERS, FORT BENJAMIN HARRISON, INDIANA, FOR
APPROXIMATELY 14 WEEKS, TO REPORT NOT LATER THAN JULY 4, 1965. YOU WERE
PAID PER DIEM AT THE RATE OF $3.50, AUTHORIZED FOR OFFICERS WHEN
GOVERNMENT QUARTERS AND MESS ARE AVAILABLE AT THE TEMPORARY DUTY
STATION, FOR THE PERIOD JULY 5, 1965, TO OCTOBER 8, 1965, FOR THE
TEMPORARY DUTY AT FORT BENJAMIN HARRISON. YOUR CLAIM FOR ADDITIONAL PER
DIEM ON THE BASIS OF NONAVAILABILITY OF QUARTERS WAS DISALLOWED BY THE
SETTLEMENT OF APRIL 1, 1966, FOR THE REASON THAT YOU WERE NOT ISSUED A
STATEMENT OF NONAVAILABILITY OF GOVERNMENT QUARTERS BY THE COMMANDING
OFFICER OF FORT BENJAMIN HARRISON. IN YOUR LETTER OF APRIL 20, 1966,
YOU REQUEST INFORMATION AS TO THE REGULATION OR REFERENCE ON WHICH THE
DISALLOWANCE OF YOUR CLAIM IS BASED.
SECTION 404 OF TITLE 37, UNITED STATES CODE, PROVIDES THAT UNDER
REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A
UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES
FOR TRAVEL PERFORMED UNDER ORDERS UPON A CHANGE OF PERMANENT STATION, OR
OTHERWISE, OR WHEN AWAY FROM HIS DESIGNATED POST OF DUTY. PARAGRAPH
M1150-5 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THIS
AUTHORITY, PROVIDES THAT THE TERM "GOVERNMENT QUARTERS" MEANS ANY
SLEEPING ACCOMMODATIONS OWNED OR LEASED BY THE UNITED STATES GOVERNMENT,
PROVIDED THEY ARE MADE AVAILABLE TO, OR UTILIZED BY, THE MEMBER
CONCERNED. WITH EXCEPTIONS NOT HERE INVOLVED, PARAGRAPH M4451 OF THE
REGULATIONS REQUIRES MEMBERS IN A TRAVEL STATUS TO UTILIZE AVAILABLE
GOVERNMENT QUARTERS TO THE MAXIMUM EXTENT PRACTICABLE AND PROVIDES FOR A
STATEMENT BY THE COMMANDING OFFICER AT THE POINT OF TEMPORARY DUTY AS TO
THE NONAVAILABILITY OF GOVERNMENT QUARTERS FOR THE ENTIRE PERIOD OF
TEMPORARY DUTY INVOLVED, IF THE LENGTH OF TEMPORARY DUTY IS FOR A PERIOD
OF 24 HOURS OR MORE, IN SUPPORT OF A CLAIM FOR ALLOWANCES MADE ON THAT
BASIS. IN VIEW OF SUCH PROVISIONS, THE EXISTENCE OF ANY AVAILABLE
USABLE GOVERNMENT QUARTERS PROVIDING SLEEPING ACCOMMODATIONS WOULD
PRECLUDE ENTITLEMENT TO THE QUARTERS PORTION OF PER DIEM TO MEMBERS ON
TEMPORARY DUTY AT SUCH PLACE EVEN THOUGH THEY FAILED TO OCCUPY SUCH
QUARTERS, AND WOULD PROVIDE NO LEGITIMATE BASIS FOR THE ISSUANCE BY THE
COMMANDING OFFICER OF A STATEMENT OF NONAVAILABILITY FOR SUCH MEMBERS.
THE RECORD DOES NOT SHOW WHY THE BACHELOR OFFICERS' QUARTERS AT FORT
BENJAMIN HARRISON WERE DECLARED NOT SUITABLE ON AUGUST 11, 1965, OR
WHETHER SUCH DECLARATION WAS AS TO SUITABILITY FOR PURPOSES OF
ASSIGNMENT FOR PERMANENT DUTY RESIDENCE ONLY. NOR HAS THE ARMY REPORTED
WHY YOU WERE DENIED A CERTIFICATE OF NONAVAILABILITY OF QUARTERS FOR THE
PERIOD OF YOUR CLAIM. THE FACT THAT THE BACHELOR OFFICERS' QUARTERS
WERE DECLARED NOT SUITABLE WOULD NOT ESTABLISH THEIR NONAVAILABILITY FOR
PER DIEM PURPOSES UNLESS CLEARLY SHOWN TO HAVE BEEN DONE BECAUSE THE
QUARTERS WERE NOT AVAILABLE AS SLEEPING ACCOMMODATIONS SINCE, AS
INDICATED ABOVE, THE REGULATIONS REQUIRE ONLY THAT THERE BE AVAILABLE TO
THE MEMBER ON TEMPORARY DUTY USABLE GOVERNMENT QUARTERS PROVIDING
SLEEPING ACCOMMODATIONS.
THE PURPOSE FOR THE REQUIREMENT OF THE STATEMENT BY THE COMMANDING
OFFICER AS TO THE NONAVAILABILITY OF GOVERNMENT QUARTERS IN SUPPORT OF A
CLAIM FOR PER DIEM IS TO PROVIDE EVIDENCE FROM AN OFFICIAL WHOSE
KNOWLEDGE OF THE FACTS IN THE MATTER PARTICULARLY QUALIFIES HIM FOR
MAKING A DETERMINATION, AND THE REGULATIONS DO NOT AUTHORIZE OUR OFFICE
TO QUESTION SUCH DETERMINATION. IN THE ABSENCE OF SUCH EVIDENCE, OR
OTHER EVIDENCE TO SHOW THAT DURING THE PERIOD COVERED BY YOUR CLAIM
QUARTERS SUITABLE TO PROVIDE SLEEPING ACCOMMODATIONS WOULD NOT HAVE BEEN
AVAILABLE HAD YOU REQUESTED THEM, THERE IS NO AUTHORITY TO ALLOW YOUR
CLAIM FOR ADDITIONAL PER DIEM.
ACCORDINGLY, THE SETTLEMENT OF APRIL 1, 1966, DISALLOWING YOUR CLAIM
WAS CORRECT AND IS SUSTAINED.
WITH REGARD TO YOUR STATEMENT THAT CERTIFICATES OF NONAVAILABILITY OF
GOVERNMENT QUARTERS WERE ISSUED TO OTHER MEMBERS OF YOUR CLASS, THE
CORRECTNESS OF PER DIEM PAYMENTS THAT MAY HAVE BEEN MADE TO THOSE
MEMBERS ON THE BASIS OF THE CERTIFICATES WILL BE FOR CONSIDERATION IN
THE AUDIT OF DISBURSING OFFICERS' ACCOUNTS. HOWEVER, THE FACT, IF
ESTABLISHED, THAT OTHER MEMBERS WERE ERRONEOUSLY PAID PER DIEM AFFORDS
NO BASIS FOR ALLOWING YOUR CLAIM.
B-159168, JUN. 15, 1966
TO MR. STANLEY R. HILL:
THIS REFERS TO LETTER OF APRIL 29, 1966, WITH ENCLOSURES, REFERENCE
4C/1815, FROM MR. J. F. GRINER, WRITTEN IN YOUR BEHALF, CONCERNING YOUR
CLAIM FOR NIGHT DIFFERENTIAL PAY FOR 534 HOURS OF NIGHT DUTY AS AN
AIRPLANE PILOT, GRADE GS-11, WITH THE ARMY AVIATION SCHOOL, CAMP RUCKER,
ALABAMA, DURING THE PERIOD SEPTEMBER 15, 1955, TO THE PRESENT DATE.
THE FACTS IN YOUR CASE WERE FULLY SET FORTH IN OUR OFFICE SETTLEMENT
OF APRIL 12, 1966, DISALLOWING YOUR CLAIM, AND NEED NOT BE REPEATED
HERE.
CONCERNING THE TIMELY FILED PORTION OF YOUR CLAIM FOR NIGHT
DIFFERENTIAL, SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59
STAT. 298, AS AMENDED, 68 STAT. 1110, PROVIDES FOR PAYMENT OF NIGHT
DIFFERENTIAL TO EMPLOYEES ASSIGNED TO A REGULAR TOUR OF DUTY BETWEEN THE
HOURS OF 6 P.M. AND 6 A.M. GENERALLY SPEAKING, THE WORK, TO CONSTITUTE
"REGULARLY SCHEDULED WORK," MUST BE DULY AUTHORIZED IN ADVANCE AND MUST
BE SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS.
SEE 40 COMP. GEN. 397, 399. THE DEPARTMENT OF THE ARMY HAS FURNISHED
OUR OFFICE A REPORT WHICH SHOWS THAT DURING YOUR ENTIRE TOUR OF DUTY YOU
WERE NEVER ASSIGNED TO A REGULAR TOUR OF DUTY BETWEEN THE HOURS OF 6
P.M. AND 6 A.M.
WHILE THE ENCLOSURES FORWARDED WITH THE LETTER OF APRIL 29, 1966,
SHOWS THAT YOU OCCASIONALLY MAY HAVE WORKED OVERTIME, THE DEPARTMENT OF
THE ARMY HAS ADVISED OUR OFFICE THAT FOR ANY DUTIES PERFORMED BY YOU
OUTSIDE YOUR REGULAR TOUR OF DUTY YOU RECEIVED COMPENSATORY LEAVE.
FURTHERMORE, IT DOES NOT APPEAR THAT 534 HOURS OF OVERTIME SERVICE AT
NIGHT OVER A PERIOD IN EXCESS OF TEN YEARS (APPROXIMATELY 6 1/2 DAYS A
YEAR) IS ANY INDICATION THAT THE ADMINISTRATIVE OFFICE ACTED IMPROPERLY
IN FAILING TO ASSIGN YOU TO A REGULAR NIGHT SHIFT WHEREBY YOU WOULD BE
ENTITLED TO NIGHT DIFFERENTIAL PAY.
THEREFORE, THE ACTION TAKEN IN OUR SETTLEMENT OF APRIL 12, 1966, IS
SUSTAINED.
B-159009, JUN. 14, 1966
TO LIEUTENANT COLONEL GERALD R. MULBERRY, USAF:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 11, 1966,
REQUESTING RECONSIDERATION OF SETTLEMENT DATED MARCH 25, 1966, WHICH
DISALLOWED YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE FOR THE PERIOD MAY
20 TO 25, 1965.
BY ORDERS DATED MARCH 10, 1965, YOU WERE RELIEVED FROM YOUR
ASSIGNMENT, HEADQUARTERS 86TH AIR DIVISION (DEF) (USAFE) APO NEW YORK
(09012) AND REASSIGNED TO HEADQUARTERS BOSTON AIR DEFENSE SECTOR (ADC),
HANCOCK FIELD, NEW YORK (13225). THE RECORD SHOWS THAT PURSUANT TO
THOSE ORDERS YOUR OCCUPANCY OF GOVERNMENT QUARTERS WAS TERMINATED ON MAY
20, 1965, AND ON THAT DAY, YOU AND YOUR DEPENDENTS (WIFE AND SON) MOVED
INTO A PRIVATE RESIDENCE AT MIESENBACH, GERMANY, FOR THE REASON THAT NO
HOTEL WAS AVAILABLE. YOU RESIDED THERE UNTIL MAY 25, 1965. YOUR CLAIM
FOR TEMPORARY LODGING ALLOWANCE, WHICH IS SUPPORTED BY A CERTIFICATE OF
NON-AVAILABILITY OF GOVERNMENT QUARTERS AND MESS, WAS DISALLOWED BY THE
SETTLEMENT DATED MARCH 25, 1966, FOR THE REASON THAT YOU DID NOT FURNISH
RECEIPTS OR OTHER EVIDENCE TO SHOW YOU INCURRED MORE THAN NORMAL EXPENSE
FOR HOTEL OR HOTEL-LIKE ACCOMMODATIONS.
IN YOUR PRESENT LETTER YOU SAY THAT LODGING WAS ACQUIRED AT THE BEST
AVAILABLE HOTEL-LIKE ACCOMMODATIONS, AND WHILE YOU DID NOT RECEIVE A
RECEIPT FROM THE OWNER OF THE RESIDENCE WHERE YOU STAYED, YOU DO NOT
FIND SUCH RECEIPT IS REQUIRED BY PARAGRAPH M4303 OF THE REGULATIONS.
FURTHER, YOU SAY THAT ALL OF THE CONDITIONS OF PARAGRAPH M4303-2A DID
EXIST IN YOUR SITUATION AND THEREFORE YOUR CLAIM SHOULD BE ALLOWED.
UNDER THE PERTINENT STATUTE, 37 U.S.C. 405, THE SECRETARIES OF THE
UNIFORMED SERVICES MAY AUTHORIZE THE PAYMENT TO MEMBERS OF THE UNIFORMED
SERVICES ON DUTY OUTSIDE THE UNITED STATES, OR IN HAWAII OR ALASKA,
WHETHER OR NOT IN A TRAVEL STATUS, OF A PER DIEM CONSIDERING ALL
ELEMENTS OF COST OF LIVING TO MEMBERS AND THEIR DEPENDENTS, INCLUDING
THE COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL
EXPENSES. REGULATIONS ISSUED UNDER THAT AUTHORITY ARE CONTAINED IN THE
JOINT TRAVEL REGULATIONS. THE PURPOSE OF THE TEMPORARY LODGING
ALLOWANCE, AS STATED IN PARAGRAPH M4303 OF THE JOINT TRAVEL REGULATIONS,
IS TO PARTIALLY REIMBURSE A MEMBER FOR THE MORE THAN NORMAL EXPENSES
INCURRED AT HOTELS OR HOTEL-LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS
UPON INITIAL ARRIVAL AT THE FOREIGN STATION PENDING COMPLETION OF
PERMANENT LIVING ARRANGEMENTS, OR IMMEDIATELY PRECEDING DEPARTURE
THEREFROM ON PERMANENT CHANGE OF STATION AND AFTER TERMINATION OF
ASSIGNMENT TO GOVERNMENT QUARTERS OR SURRENDER OF OTHER PERMANENT LIVING
ACCOMMODATIONS. IN ACCORD WITH THAT PURPOSE, PARAGRAPH M4303-2A OF THE
REGULATIONS AUTHORIZES PAYMENT OF THE ALLOWANCE BASED ON THE SOMEWHAT
HIGHER TRAVEL PER DIEM RATES DESIGNED TO REIMBURSE TRANSIENTS FOR THEIR
EXTRAORDINARY EXPENSE OF TRAVEL IN CIRCUMSTANCES WHERE GOVERNMENT
QUARTERS ARE NOT FURNISHED, THE MEMBER IS REQUIRED TO SECURE TEMPORARY
LODGINGS, AND HE OR HIS DEPENDENTS, OR BOTH, ACTUALLY OCCUPY HOTEL OR
HOTEL-LIKE ACCOMMODATIONS AT PERSONAL EXPENSE. IN OTHER WORDS, THE
REGULATIONS CONTEMPLATE PAYMENT OF THE HIGHER RATES ONLY UNDER SPECIAL
CIRCUMSTANCES APPROXIMATING THOSE MET BY TRAVELERS. IT IS CONSIDERED,
THEREFORE, THAT BENEFITS MAY NOT ACCRUE UNDER THE REGULATIONS
IMMEDIATELY PRECEDING DEPARTURE ON A PERMANENT CHANGE OF STATION FROM A
PERMANENT DUTY STATION OUTSIDE THE UNITED STATES UNLESS THE MEMBER BY
USING HOTEL OR HOTEL-LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS INCURS
LIVING EXPENSES WHICH SUBSTANTIALLY EXCEED THOSE THAT WOULD BE INCURRED
UNDER NORMAL PERMANENT LIVING ARRANGEMENTS.
IN YOUR CLAIM FOR THE TEMPORARY LODGING ALLOWANCE YOU STATED "LODGING
WAS ACQUIRED IN LOCAL RESIDENCE WHERE A HOTEL BILL WAS NOT TENDERED.'
HOWEVER, THERE IS NOTHING IN THE RECORD ESTABLISHING THAT BY OCCUPYING
SUCH ACCOMMODATIONS YOU WERE COMPELLED TO PAY HIGH TRANSIENT RENTAL AND
USE PUBLIC RESTAURANTS. BOTH ARE QUALIFYING CONDITIONS CONTEMPLATED BY
THE REGULATIONS AND BOTH MUST BE MET BEFORE THE ALLOWANCE IS PAYABLE.
B-150362, AUGUST 26, 1963. COMPARE 33 COMP. GEN. 451.
WHILE THE REGULATION DOES NOT REQUIRE SUBMISSION OF HOTEL RECEIPTS TO
SUPPORT A CLAIM FOR TEMPORARY LODGING ALLOWANCE, AS A PRACTICAL MATTER
HOTEL RECEIPTS ARE CONSIDERED ACCEPTABLE EVIDENCE THAT THE MEMBER HAS
NECESSARILY OCCUPIED HOUSING OF THE TYPE USUALLY OCCUPIED BY TRANSIENTS
AT A COST GREATER THAN THAT WHICH ORDINARILY WOULD BE INCURRED IN
PERMANENT-TYPE HOUSING. IN THIS CONNECTION, PRIVATE RESIDENCES,
PENSION-TYPE ACCOMMODATIONS, AND SIMILAR HOUSING FACILITIES, WITH
CHARACTERISTICS WHICH RENDER THEM SUITABLE FOR PERMANENT-TYPE HOUSING
ARE NOT REGARDED AS HOTEL OR HOTEL-LIKE ACCOMMODATIONS WITHIN THE
MEANING OF THE REGULATIONS IN THE ABSENCE OF AN AFFIRMATIVE SHOWING THAT
RESULTING LIVING EXPENSES SIGNIFICANTLY EXCEED THOSE THAT MIGHT BE
EXPECTED IN PERMANENT HOUSING ARRANGEMENTS.
CONSEQUENTLY, IN THE ABSENCE OF EVIDENCE TO SHOW THAT THE COST TO YOU
FOR THE QUARTERS OCCUPIED BY YOU AND YOUR DEPENDENTS AND FOR MEALS
OBTAINED IN RESTAURANTS DURING THE PERIOD IN QUESTION WAS SUBSTANTIALLY
GREATER THAN THAT WHICH ORDINARILY WOULD BE INCURRED UNDER MORE
PERMANENT LIVING ARRANGEMENTS, THERE IS NO LEGAL BASIS TO ALLOW YOUR
CLAIM. ACCORDINGLY, ON THE PRESENT RECORD THE SETTLEMENT OF MARCH 25,
1966, IS SUSTAINED.
CONCERNING YOUR REQUEST THAT WE RETURN YOUR CLAIM TO YOU UNTIL YOU
ARE ABLE TO SUBMIT ADDITIONAL SUPPORTING EVIDENCE, YOU ARE ADVISED THAT
ALL PAPERS, EXCEPT THE MEMBER'S ORDERS, FILED IN CONNECTION WITH A CLAIM
AGAINST THE UNITED STATES AND CONSIDERED IN REACHING A DECISION
RESPECTING THE CLAIMANT'S RIGHTS BECOME A PART OF THE PERMANENT FILES OF
THIS OFFICE. CONSISTENTLY, IT HAS BEEN THE PRACTICE OF OUR OFFICE AND
OF THE FORMER ACCOUNTING OFFICERS OF THE TREASURY IN SUCH CASES TO
RETAIN THE PAPERS FILED IN CLAIMS AGAINST THE UNITED STATES AS PART OF
THE PERMANENT RECORDS. SEE 31 U.S.C. 71 AND 74; ALSO 1 COMP. GEN.
631, 634. ACCORDINGLY, WE ARE UNABLE TO COMPLY WITH YOUR REQUEST FOR
THE RETURN OF YOUR CLAIM.
B-159144, JUN. 14, 1966
TO COMMANDER ROBERT K. RIPLEY, USN:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 25, 1966,
REQUESTING REVIEW OF OUR SETTLEMENT DATED APRIL 21, 1966, WHICH
DISALLOWED YOUR CLAIMS FOR REIMBURSEMENT OF COSTS INCURRED FOR EXCESS
VALUATION ON A SHIPMENT OF 165 POUNDS OF ITEMS OF EXTRAORDINARY VALUE
FROM LONDON, ENGLAND, TO ALEXANDRIA, VIRGINIA, AND SHIPMENT OF YOUR
AUTOMOBILE FROM LONDON TO BALTIMORE, MARYLAND, INCIDENT TO YOUR RETURN
FROM OVERSEAS UNDER BUREAU OF NAVAL PERSONNEL ORDER 145754 DATED OCTOBER
12, 1965.
THE RECORD SHOWS THAT YOU PURCHASED A PEUGEOT AUTOMOBILE IN MAY 1965
THROUGH CARS OVERSEAS, INCORPORATED, AND IT WAS DELIVERED TO YOU IN
LONDON FROM PARIS WHERE IT WAS MANUFACTURED. YOU SAY THAT WHEN YOU
RECEIVED ORDERS TO RETURN TO THE UNITED STATES YOU WERE TOLD BY THE
SUPPLY OFFICER OF COMNAVACTS, ENGLAND, THAT SINCE YOUR FRENCH MADE
PEUGEOT HAD BEEN DELIVERED TO YOU IN EUROPE IT WOULD HAVE TO BE SHIPPED
TO THE UNITED STATES AT YOUR EXPENSE.
SECTION 2634 OF TITLE 10, OF THE UNITED STATES CODE (SUPP. I),
PROVIDES THAT WHEN A MEMBER OF AN ARMED FORCE IS ORDERED TO MAKE A
CHANGE OF PERMANENT STATION, ONE MOTOR VEHICLE OWNED BY HIM AND FOR HIS
PERSONAL USE OR THE USE OF HIS DEPENDENTS MAY, UNLESS A MOTOR VEHICLE
OWNED BY HIM WAS TRANSPORTED IN ADVANCE OF THAT CHANGE OF PERMANENT
STATION UNDER SECTION 406/H) OF TITLE 37 OF THE CODE, BE TRANSPORTED BY
VESSEL AS THERE PROVIDED, AT THE EXPENSE OF THE UNITED STATES, TO HIS
NEW STATION OR SUCH OTHER PLACE AS THE SECRETARY CONCERNED MAY
AUTHORIZE. IMPLEMENTING REGULATIONS ISSUED PURSUANT TO THIS STATUTE ARE
CONTAINED IN VOLUME V, BUREAU OF SUPPLIES AND ACCOUNTS MANUAL.
PARAGRAPH 58302 OF THE REGULATIONS RESTRICTS SHIPMENT OF FOREIGN MADE
VEHICLES UNLESS OWNED BY THE MEMBER OR ON ORDER PRIOR TO MARCH 6, 1961,
EXCEPT IN THE CASE OF USED VEHICLES PURCHASED BY DEPARTMENT OF DEFENSE
PERSONNEL FROM OTHER PERSONNEL OF THE DEPARTMENT AFTER MARCH 6, 1961,
WHEN THE FOLLOWING CONDITIONS ARE ESTABLISHED BY DOCUMENTARY EVIDENCE,
SUCH AS BILLS OF SALE, TITLES, AND REGISTRATION CERTIFICATES: OWNERSHIP
ON MARCH 6, 1961, BY PERSONNEL ELIGIBLE FOR SHIPMENT OF THE VEHICLE AT
GOVERNMENT EXPENSE AND UNBROKEN CHAIN OF OWNERSHIP SINCE MARCH 6, 1961,
BY DEPARTMENT OF DEFENSE PERSONNEL OTHERWISE ELIGIBLE FOR SHIPMENT OF
THE VEHICLE AT GOVERNMENT EXPENSE. PARAGRAPH 58303 PROVIDES THAT
REQUESTS FOR SHIPMENT OF MOTOR VEHICLES WILL BE MADE BY THE OWNER ON
MOTOR VEHICLE SHIPMENT APPLICATION (DD FORM 828), AND THAT UNDER NO
CIRCUMSTANCES WILL OWNERS SUBMIT APPLICATIONS DIRECT TO STEAMSHIP
COMPANIES. SEE ALSO PARAGRAPH M11002-1 OF THE JOINT TRAVEL REGULATIONS.
UNDER THE GOVERNING REGULATIONS THE APPROPRIATE GOVERNMENT SHIPPING
OFFICER WAS PROHIBITED FROM SHIPPING YOUR AUTOMOBILE BECAUSE IT WAS A
FOREIGN MADE VEHICLE PURCHASED AND DELIVERED TO YOU OVERSEAS SUBSEQUENT
TO MARCH 6, 1961. NEITHER THE STATUTE NOR THE REGULATIONS CONTAIN ANY
PROVISION FOR REIMBURSING A MEMBER, IN CIRCUMSTANCES SUCH AS YOURS, WHO
MAKES HIS OWN ARRANGEMENTS FOR SHIPPING HIS VEHICLE ON A COMMERCIAL
VESSEL. SINCE YOU WERE NOT AUTHORIZED TO MAKE PERSONAL ARRANGEMENTS FOR
THE SHIPMENT OF YOUR AUTOMOBILE TO THE UNITED STATES AT GOVERNMENT
EXPENSE AND THE APPROPRIATE NAVAL SHIPPING OFFICER HAD NO AUTHORITY TO
ARRANGE FOR ITS SHIPMENT, THERE IS NO BASIS ON WHICH YOU MAY BE
REIMBURSED FOR ANY OF THE CHARGES INCURRED BY YOU IN SHIPPING YOUR
AUTOMOBILE FROM LONDON, ENGLAND, TO BALTIMORE, MARYLAND.
REGARDING YOUR CLAIM FOR REIMBURSEMENT OF COST OF INSURANCE FOR
EXCESS VALUATION ON SHIPMENT OF 165 POUNDS OF VALUABLES, PARAGRAPH M8006
OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT ITEMS OF EXTRAORDINARY
VALUE WHICH ARE PRONE TO PILFERAGE WHEN SHIPPED BY ORDINARY MODES OF
TRANSPORTATION,
MAY BE SHIPPED BY THE EXPEDITED MODE OF TRANSPORTATION WHICH WILL
PRODUCE THE LOWEST OVER-ALL COST TO THE GOVERNMENT AND WHICH WILL
PROVIDE SATISFACTORY SERVICE WITHOUT DIMINISHING THE MEMBER'S WEIGHT
ALLOWANCE OF UNACCOMPANIED BAGGAGE. PARAGRAPH M8009 OF THE REGULATIONS
PROVIDES THAT UPON HIS WRITTEN REQUEST AND AGREEMENT TO PAY ANY
ADDITIONAL COST OCCASIONED THEREBY, THE MEMBER MAY DEVIATE FROM THE
REGULATIONS BY HAVING SPECIAL SERVICES EMPLOYED INCLUDING ADDITIONAL
VALUATION. IN YOUR APPLICATION FOR SHIPMENT NO. 2 OF HOUSEHOLD GOODS
(DD FORM 1299) DATED OCTOBER 29, 1965, YOU REQUESTED THAT HOUSEHOLD
GOODS WITH A VALUATION OF $5,000 BE SHIPPED BY PROTECTED MODE, AND THE
APPLICATION STATES THAT YOU WOULD REMIT THE PROPER AMOUNT OR PERMIT THE
APPLICATION OF AS MUCH OF YOUR PAY AS WOULD BE NECESSARY TO COVER ALL
EXCESS COST OCCASIONED BY THIS SHIPMENT. THUS, IT APPEARS THAT ON THE
BASIS OF THIS APPLICATION, THESE GOODS WERE SHIPPED BY REA EXPRESS, THE
CARRIER'S INVOICE SHOWING AN EXPRESS CHARGE OF $6 PLUS A VALUE CHARGE OF
$60 BASED ON A VALUATION OF $5,000.
THERE IS NOTHING ON YOUR APPLICATION FOR SHIPMENT NO. 2 TO SHOW THAT
YOU HAD INSURANCE ON THESE GOODS TO COVER THE VALUE YOU PLACED ON THEM
AND THAT YOU WANTED THEM SHIPPED AT A VALUATION WHICH WOULD RESULT IN
THE LOWEST APPLICABLE RATE ESTABLISHED IN THE CARRIER'S TARIFFS.
RATHER, YOUR APPLICATION REQUESTED A PROTECTED MODE OF SHIPMENT FOR
GOODS VALUED AT $5,000 AND PROVIDED THAT YOU WOULD PAY ANY EXCESS COST
OCCASIONED THEREBY. FOR THIS REASON AND SINCE THE SHIPPING CHARGES FOR
EXCESS VALUATION OF GOODS IS NOT AN ITEM THAT IS REIMBURSABLE BY THE
GOVERNMENT, YOU CLAIM FOR REIMBURSEMENT OF THE VALUE CHARGE OF $60 MAY
NOT BE ALLOWED.
WHILE THE RECORD DOES NOT SHOW THAT THERE WAS ANY ADMINISTRATIVE
ERROR IN EITHER THE EXCESS VALUATION OF SHIPMENT NO. 2 OR IN THE
SHIPMENT OF YOUR AUTOMOBILE AS YOU ALLEGE, YOU ARE ADVISED THAT IT IS
WELL ESTABLISHED THAT IN THE ABSENCE OF SPECIFIC STATUTORY PROVISIONS
THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT ACTS OF ITS OFFICERS,
AGENTS OR EMPLOYEES EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR
OFFICIAL DUTIES. GERMAN BANK V. UNITED STATES, 148 U.S. 73; 19 COMP.
GEN. 503; 22 COMP. GEN. 221.
ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM BY THE SETTLEMENT OF
APRIL 21, 1966, WAS CORRECT AND IS SUSTAINED.
B-159201, JUN. 14, 1966
TO SECRETARY OF THE NAVY:
REFERENCE IS MADE TO LETTER OF MAY 16, 1966, FROM THE UNDER SECRETARY
OF THE NAVY REQUESTING A DECISION INVOLVING THE STATUS AND RIGHTS OF
REAR ADMIRAL WILFRED A. HEARN, CURRENTLY SERVING AS JUDGE ADVOCATE
GENERAL OF THE NAVY. THE LETTER WAS ASSIGNED CLEARANCE NUMBER SS-N-907
BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.
IT APPEARS THAT REAR ADMIRAL HEARN WAS APPOINTED JUDGE ADVOCATE
GENERAL OF THE NAVY BY THE PRESIDENT FOR A FOUR-YEAR TERM COMMENCING
APRIL 1, 1964. SUCH APPOINTMENT WAS ACCOMPLISHED IN ACCORDANCE WITH THE
PROVISIONS OF 10 U.S.C. 5148 (A), PROVIDING AS FOLLOWS:
"THERE IS IN THE EXECUTIVE PART OF THE DEPARTMENT OF THE NAVY THE
OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE NAVY. THE JUDGE ADVOCATE
GENERAL SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND
CONSENT OF THE SENATE, FOR A TERM OF FOUR YEARS. HE SHALL BE APPOINTED
FROM OFFICERS OF THE NAVY OR THE MARINE CORPS WHO ARE MEMBERS OF THE BAR
OF A FEDERAL COURT OR THE HIGHEST COURT OF A STATE OR TERRITORY AND WHO
HAVE HAD AT LEAST EIGHT YEARS OF EXPERIENCE IN LEGAL DUTIES AS
COMMISSIONED OFFICERS.'
AN OFFICER SERVING AS JUDGE ADVOCATE GENERAL OF THE NAVY HAS THE RANK
OF REAR ADMIRAL AND HE IS ENTITLED TO ACTIVE DUTY BASIC PAY AND
ALLOWANCES AS A REAR ADMIRAL OF THE UPPER HALF. 10 U.S.C. 5148 (B),
5133 (A) AND 37 U.S.C. 202 (H) (6). REAR ADMIRAL HEARN'S PERMANENT
NAVAL STATUS IS THAT OF A CAPTAIN. HE IS RESTRICTED IN THE PERFORMANCE
OF DUTY HAVING BEEN APPOINTED TO THE ACTIVE LIST IN THE LINE OF THE NAVY
AND DESIGNATED FOR PERFORMANCE OF SPECIAL DUTY IN THE FIELD OF LAW UNDER
THE PROVISIONS OF SECTION 401 OF THE OFFICER PERSONNEL ACT OF 1947, CH.
512, 61 STAT. 869, NOW FOUND IN 10 U.S.C. 5587. SEE 10 U.S.C. 5001 (A)
(8).
REAR ADMIRAL HEARN'S PAY ENTRY BASE DATE IS SHOWN TO BE APRIL 6,
1942, AND ON THAT BASIS HE IS ENTITLED TO COMPUTE HIS CURRENT ACTIVE
DUTY PAY AS A REAR ADMIRAL OF THE UPPER HALF WITH OVER 22 YEARS OF
SERVICE CREDITABLE FOR BASIC PAY. IT APPEARS THAT HE HAS BEEN CREDITED
WITH CONSTRUCTIVE SERVICE UNDER SECTION 2 OF THE ACT OF AUGUST 5, 1949,
CH. 402, 63 STAT. 569, AND THAT HIS SERVICE DATE (THE DATE FROM WHICH
AN OFFICER'S COMMISSIONED SERVICE IS DEEMED TO HAVE COMMENCED FOR THE
PURPOSE OF DETERMINING ELIGIBILITY FOR CONTINUATION ON THE ACTIVE LIST
OR INVOLUNTARY SEPARATION FROM THE ACTIVE LIST) IS JUNE 30, 1935, HE
HAVING BEEN ALIGNED WITH AN OFFICER OF THE NAVAL ACADEMY CLASS OF 1935.
HENCE, HE WILL BE CONSIDERED TO HAVE 31 YEARS OF TOTAL COMMISSIONED
SERVICE ON JUNE 30, 1966, WITHIN THE MEANING OF 10 U.S.C. 6387 RELATING
TO COMPUTATION OF COMMISSIONED SERVICE.
THE INITIAL AND BASIC ISSUE POSED RELATES TO THE EFFECT OF THE
PROVISIONS OF 10 U.S.C. 6377 (A) ON REAR ADMIRAL HEARN'S CURRENT NAVAL
STATUS. SECTION 6377 (A), AS AMENDED AUGUST 3, 1961, BY SECTION 5 (28),
PUB.L. 87-123, 75 STAT. 266, PROVIDES:
"IF NOT ON A PROMOTION LIST AND IF NOT CONTINUED ON THE ACTIVE LIST
UNDER SECTION 6378 OF THIS TITLE, EACH OFFICER RESTRICTED IN THE
PERFORMANCE OF DUTY SERVING IN THE GRADE OF CAPTAIN ON THE ACTIVE LIST
IN THE LINE OF THE NAVY SHALL, SUBJECT TO SECTION 5777 OF THIS TITLE
(PROVISIONS RELATING TO REMOVAL OF AN OFFICER'S NAME FROM A PROMOTION
LIST--- NOT APPLICABLE IN THIS CASE), BE RETIRED ON JUNE 30 OF THE
FISCAL YEAR IN WHICH HE COMPLETES 31 YEARS OF TOTAL COMMISSIONED SERVICE
AS COMPUTED UNDER SECTION 6387 OF THIS TITLE.'
SUBSECTION (B) OF SECTION 5148, TITLE 10, U.S. CODE, AS AMENDED BY
SECTION 14C/20), PUB.L. 87-649, SEPTEMBER 7, 1962, 76 STAT. 501,
PROVIDES THAT THE JUDGE ADVOCATE GENERAL OF THE NAVY "IS ENTITLED TO THE
SAME RANK AND PRIVILEGES OF RETIREMENT" AS PROVIDED FOR CHIEFS OF
BUREAUS IN SECTION 5133 OF THAT TITLE. SECTION 5133, AS AMENDED, IN
PERTINENT PART CURRENTLY PROVIDES AS FOLLOWS:
"/A) UNLESS APPOINTED TO A HIGHER GRADE UNDER ANOTHER PROVISION OF
LAW, AN OFFICER OF THE NAVY, WHILE SERVING AS A CHIEF OF BUREAU, HAS THE
RANK OF REAR ADMIRAL. * * *
"/B) * * * AN OFFICER WHO IS RETIRED WHILE SERVING AS A CHIEF OF
BUREAU, OR WHO, AFTER SERVING AT LEAST TWO AND ONE-HALF YEARS AS A CHIEF
OF BUREAU, IS RETIRED AFTER COMPLETION OF THAT SERVICE WHILE SERVING IN
A LOWER RANK OR GRADE, MAY, IN THE DISCRETION OF THE PRESIDENT, BE
RETIRED WITH THE GRADE OF REAR ADMIRAL * * * AND WITH RETIRED PAY BASED
ON THAT GRADE. IF HE IS RETIRED WITH THE GRADE OF REAR ADMIRAL, HE IS
ENTITLED TO THE RETIRED PAY OF A REAR ADMIRAL IN THE UPPER HALF OF THAT
GRADE. * * *"
THE PROVISIONS OF SECTION 5148/A), TITLE 10, U.S. CODE, PRESENTLY
GOVERNING THE APPOINTMENT BY THE PRESIDENT OF AN OFFICER OF THE NAVY OR
MARINE CORPS AS JUDGE ADVOCATE GENERAL OF THE NAVY FOR A TERM OF FOUR
YEARS DO NOT CONTAIN ANY SAVINGS PROVISIONS SUCH AS THOSE FOUND, FOR
EXAMPLE, IN SECTIONS, 5596 (F), 5597 (H), 5784 (E) AND 5787 (H), TITLE
10, U.S. CODE, PROTECTING THE ,PERMANENT, PROBATIONARY, OR ACTING
STATUS" OF MEMBERS OF THE NAVAL SERVICE TEMPORARILY APPOINTED OR
TEMPORARILY PROMOTED TO HIGHER GRADE UNDER THOSE SECTIONS. IT LONG HAS
BEEN CONSIDERED, HOWEVER, THAT THE APPOINTMENT OF AN OFFICER BY THE
PRESIDENT TO THE OFFICE OF JUDGE ADVOCATE GENERAL OF THE NAVY (OR AS A
CHIEF OF BUREAU) FOR A STATUTORY TERM OF FOUR YEARS DOES NOT AFFECT OR
TERMINATE THE NAVAL STATUS OF THE OFFICER SO APPOINTED AND THAT AFTER
COMPLETION OF THE FOUR-YEAR TERM IN SUCH OFFICE, OR EARLIER SEPARATION
BY RETIREMENT OR OTHERWISE, THE OFFICER CONCERNED REVERTS BY OPERATION
OF LAW TO HIS FORMER STATUS IN THE NAVY. SEE 10 OP.ATT.GEN. 377; 27
ID. 376; 28 ID. 531 AND 31 ID. 55I. ALSO, SEE STOKES V. UNITED STATES,
54 CT.CL. 70 (1919), LAWS RELATING TO THE NAVY, ANNOTATED, 1922, AT
PAGES 366 TO 369, AND 25 OP.ATT.GEN. 294, AT PAGE 297.
A NAVAL OFFICER WHO IS APPOINTED AS A CHIEF OF BUREAU IS CONSIDERED
AS SERVING IN THAT OFFICE DURING THE TERM OF HIS APPOINTMENT AND SUCH AN
OFFICER REVERTS TO HIS FORMER STATUS IN THE NAVAL SERVICE WHEN HE
RETURNS FROM ACTIVE SERVICE IN THE APPOINTED OFFICE TO ACTIVE SERVICE IN
HIS PERMANENT NAVAL STATUS. THE PROVISIONS OF 10 U.S.C. 5133 (B)
CURRENTLY GOVERNING THE RETIRED GRADE OF AN OFFICER OF THE NAVAL SERVICE
WHO, AFTER COMPLETION OF NOT LESS THAN TWO AND ONE-HALF YEARS OF SERVICE
AS A CHIEF OF BUREAU IS RETIRED "WHILE SERVING IN A LOWER GRADE OR RANK"
CLEARLY IMPLY THAT SUCH AN OFFICER RESUMES AN ACTIVE DUTY STATUS IN HIS
PERMANENT GRADE OR RANK AFTER COMPLETION OF HIS SERVICE AS A CHIEF OF
BUREAU. CF. 27 COMP. GEN. 296, 299.
IT SEEMS QUITE DOUBTFUL THAT REAR ADMIRAL HEARN PROPERLY SHOULD BE
CONSIDERED DURING THE PERIOD OF HIS SERVICE AS JUDGE ADVOCATE GENERAL OF
THE NAVY, A STATUTORY OFFICE WHICH CARRIES THE RANK OF REAR ADMIRAL AND
AND WHICH ENTITLES HIM TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES OF A
REAR ADMIRAL OF THE UPPER HALF, AS "SERVING IN THE GRADE OF CAPTAIN ON
THE ACTIVE LIST IN THE LINE OF THE NAVY" FOR THE PURPOSES OF SECTION
6377 (A). THE PROVISIONS OF SECTION 5148 (A), QUOTED ABOVE, EXPRESSLY
AND SPECIFICALLY PROVIDE THAT THE JUDGE ADVOCATE GENERAL SHALL BE
APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE
SENATE "FOR A TERM OF FOUR YEARS.' THE STATUTORY ENACTMENTS FROM WHICH
THOSE SPECIFIC PROVISIONS OF LAW WERE DERIVED WERE ENACTED NOT ONLY TO
CREATE THE OFFICE OF JUDGE ADVOCATE GENERAL OF THE NAVY AND TO GOVERN
THE MANNER OF APPOINTMENT THERETO BUT ALSO TO REGULATE THE TERM OF THE
INCUMBENT OF THAT OFFICE. IT IS OUR VIEW THAT THE FOUR-YEAR TERM
PRESCRIBED FOR THE JUDGE ADVOCATE GENERAL OF THE NAVY IS NOT SUBJECT TO
CURTAILMENT UNDER THE PROVISIONS OF SECTION 6377 (A) WHICH ARE GENERAL
IN SCOPE. IF GIVEN EFFECT IN HIS CASE SUCH STATUTORY PROVISIONS COULD
FORCE REAR ADMIRAL HEARN INTO RETIREMENT FROM ACTIVE SERVICE ON JUNE 30,
1966, IRRESPECTIVE OF THE WISHES OF THE PRESIDENT AND THE SENATE BECAUSE
HIS NAME IS NOT ON A PROMOTION LIST FOR PROMOTION TO THE GRADE OF REAR
ADMIRAL, A SITUATION WHICH IS PATENTLY ABSURD SINCE HE HAS BEEN
PERSONALLY SELECTED BY THE PRESIDENT AND CONFIRMED BY THE SENATE
AS A CAPTAIN ON THE ACTIVE LIST OF THE NAVY FULLY QUALIFIED TO SERVE
FOR FOUR YEARS AS JUDGE ADVOCATE GENERAL OF THE NAVY WITH THE RANK OF
REAR ADMIRAL. IN THE CIRCUMSTANCES, THE CONCLUSION APPEARS WARRANTED
THAT SECTION 6377 (A) SHOULD BE VIEWED AS INAPPLICABLE IN HIS CASE
DURING HIS STATUTORY TERM OF OFFICE AS JUDGE ADVOCATE GENERAL.
THE PARTICULAR QUESTION CONCERNING REAR ADMIRAL HEARN'S FUTURE
RETIRED PAY STATUS IS STATED AS FOLLOWS:
"DECISION IS THEREFORE REQUESTED AS TO THE PROPER BASIS FOR THE
COMPUTATION OF RETIRED PAY IN THE CASE OF REAR ADMIRAL HEARN UNDER 10
USC 5148, 5133, AND OTHER PERTINENT PROVISIONS OF LAW, WHEN RETIRED,
ASSUMING THAT HE CONTINUES TO SERVE AS JUDGE ADVOCATE GENERAL UNTIL THE
EXPIRATION OF HIS TERM OF OFFICE WITHOUT RESORT TO THE CONTINUATION
PROCEDURES OF 10 USC 6378 AND IS RETIRED ON APRIL 1, 1968, OR RETIRES
VOLUNTARILY BEFORE THE END OF HIS TERM. SPECIFICALLY, DECISION IS
REQUESTED WHETHER SUCH COMPUTATION WOULD BE ON THE BASIS OF THE BASIC
PAY OF A REAR ADMIRAL OF THE UPPER HALF, WITH 26 YEARS AS THE MULTIPLIER
IN THE COMPUTATION.'
IN THE EVENT OF REAR ADMIRAL HEARN'S RETIREMENT EFFECTIVE APRIL 1,
1968, HE WOULD BE ENTITLED TO THE BENEFITS AUTHORIZED IN 10 U.S.C. 5133
(B). UNDER THE PROVISIONS OF THAT SUBSECTION HE MAY, IN THE DISCRETION
OF THE PRESIDENT,"BE RETIRED WITH THE GRADE OF REAR ADMIRAL * * * AND
WITH RETIRED PAY BASED ON THAT GRADE.' IF RETIRED WITH THE GRADE OF REAR
ADMIRAL HE WILL BE ENTITLED TO THE RETIRED PAY OF A REAR ADMIRAL IN THE
UPPER HALF OF THAT GRADE. SINCE HIS PAY ENTRY BASE DATE IS SHOWN AS
APRIL 6, 1942, HE WILL BE IN RECEIPT OF BASIC PAY ON MARCH 31, 1968, AS
AN OFFICER (PAY GRADE 0-8) WITH OVER 22 YEARS OF SERVICE AND WITH 25
YEARS, 11 MONTHS AND 25 DAYS OF SERVICE CREDITABLE UNDER 10 U.S.C. 1405
IN ESTABLISHING THE RETIRED PAY MULTIPLIER FACTOR IN 10 U.S.C. 6323.
THE LAST SENTENCE IN SECTION 1405 EXPRESSLY PROVIDES THAT FOR THE
PURPOSE OF THAT SECTION A PART OF A YEAR THAT IS SIX MONTHS OR MORE IS
COUNTED AS A WHOLE YEAR, AND A PART OF A YEAR THAT IS LESS THAN SIX
MONTHS IS DISREGARDED. HENCE, THE MULTIPLIER FACTOR IN COMPUTING REAR
ADMIRAL HEARN'S RETIRED PAY UNDER SECTION 6323, EFFECTIVE AS OF APRIL 1,
1968, WOULD BE BASED ON 26 YEARS OF SERVICE.
IF HE IS VOLUNTARILY PLACED ON THE RETIRED LIST PRIOR TO APRIL 1,
1968, UNDER AUTHORITY OF 10 U.S.C. 6323, REAR ADMIRAL HEARN'S RETIRED
PAY WOULD BE COMPUTED AS INDICATED ABOVE, BUT IT SHOULD BE NOTED THAT
THE BENEFITS OF THE LAST SENTENCE IN 10 U.S.C. 1405 WILL NOT RESULT IN
26 YEARS OF SERVICE BEING CREDITABLE FOR THE MULTIPLIER FACTOR IN
COMPUTING HIS RETIRED PAY UNTIL HE HAS COMPLETED 25 YEARS AND 6 MONTHS
OF SERVICE AS PROVIDED IN SECTION 1405, AS AMENDED.
B-15928, JUN. 14, 1966
TO MR. LEONARD CURRERI:
THIS REFERS TO YOUR LETTER OF FEBRUARY 11, 1966, WHICH REQUESTS
RECONSIDERATION OF OUR OFFICE SETTLEMENT OF FEBRUARY 7, 1966, WHICH
DISALLOWED YOUR CLAIM FOR PAYMENT OF EIGHT DAYS ANNUAL LEAVE ALLEGED TO
BE DUE AT DATE OF RETIREMENT AND FOR EXTRA PAY FOR WORKING ALL LEGAL
HOLIDAYS DURING THE PERIOD JANUARY 1942 THROUGH DECEMBER 1945, AS A
CIVILIAN EMPLOYEE OF THE NEW YORK NAVAL SHIPYARD.
THE FILE INDICATES THAT FOR THE PERIOD JANUARY 1942 THROUGH DECEMBER
1945, YOU WERE A WAGE BOARD EMPLOYEE AND DURING THIS PERIOD FOR THE
HOLIDAYS WORKED YOU RECEIVED YOUR REGULAR PAY. YOU ARE OF THE OPINION
THAT YOU SHOULD HAVE BEEN PAID EXTRA PAY FOR THE HOLIDAYS WORKED.
THE ONLY STATUTE REFERRING TO HOLIDAY PAY FOR WAGE BOARD EMPLOYEES,
DURING THE PERIOD IN QUESTION, WAS THE ACT OF JUNE 29, 1938, 52 STAT.
1246, WHICH PROVIDED:
"THAT HEREAFTER WHENEVER REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT
WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A
PIECE-WORK BASIS ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE
OF THE OCCURRENCE OF A HOLIDAY SUCH AS NEW YEAR'S DAY, WASHINGTON'S
BIRTHDAY, MEMORIAL DAY, FOURTH OF JULY, LABOR DAY, THANKSGIVING DAY,
CHRISTMAS DAY, OR ANY OTHER DAY DECLARED A HOLIDAY BY FEDERAL STATUTE OR
EXECUTIVE ORDER, OR ANY DAY ON WHICH THE DEPARTMENTS AND ESTABLISHMENTS
OF THE GOVERNMENT ARE CLOSED BY EXECUTIVE ORDER, THEY SHALL RECEIVE THE
SAME PAY FOR SUCH DAYS AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK
IS PERFORMED.
"SEC. 2. THE JOINT RESOLUTION OF JANUARY 6, 1885 (U.S.C., TITLE 5,
SEC. 86), AND ALL OTHER LAWS INCONSISTENT OR IN CONFLICT WITH THE
PROVISIONS OF THIS ACT ARE HEREBY REPEALED TO THE EXTENT OF SUCH
INCONSISTENCY OR CONFLICT.'
IT WILL BE OBSERVED THAT SAID STATUTE RELATES TO PAY FOR HOLIDAYS ON
WHICH NO WORK IS PERFORMED AND AS IT SPECIFICALLY REPEALED A PRIOR
STATUTE UNDER WHICH DOUBLE COMPENSATION FOR HOLIDAYS HAD BEEN
AUTHORIZED, IT HAS BEEN CONSISTENTLY INTERPRETED BY THIS OFFICE AS
AUTHORIZING ONLY AN ORDINARY DAY'S PAY FOR HOLIDAYS IRRESPECTIVE OF
WHETHER WORKING OR NOT WORKING UNLESS THERE IS IN EXISTENCE DURING THE
INVOLVED PERIOD A WAGE BOARD AGREEMENT PROVIDING FOR EXTRA PAY FOR
EMPLOYEES WHO ARE REQUIRED TO WORK ON A LEGAL HOLIDAY. THE SUPREME
COURT OF THE UNITED STATES HAS HELD TO THE SAME EFFECT. SEE UNITED
STATES V. BERGH, 352 U.S. 40. THE RECORD INDICATES THAT A WAGE BOARD
AGREEMENT WAS NOT IN EFFECT IN THE DEPARTMENT OF THE NAVY AUTHORIZING
EXTRA PAY FOR WORK PERFORMED
ON HOLIDAYS FOR EMPLOYEES OF YOUR CLASS DURING THE PERIOD IN
QUESTION. THEREFORE, THERE IS NO AUTHORITY FOR ALLOWANCE OF EXTRA
COMPENSATION FOR SUCH WORK.
CONCERNING YOUR CLAIM FOR LUMP-SUM PAYMENT OF ACCRUED LEAVE WHILE IN
A SICK LEAVE STATUS THE RECORD SHOWS THAT YOU WERE MANDATORILY RETIRED
ON APRIL 30, 1965, BECAUSE YOU HAD REACHED THE AGE OF 70 ON APRIL 22,
1965. YOU HAD ELECTED TO USE ALL OF YOUR ACCRUED ANNUAL LEAVE BEFORE
TAKING SICK LEAVE STARTING DECEMBER 18, 1964. YOU WERE ON APPROVED SICK
LEAVE THROUGH APRIL 30, 1965, AND THE ANNUAL LEAVE YOU REFER TO WAS
EARNED WHILE YOU WERE ON SICK LEAVE. UNDER THE CIRCUMSTANCES YOU WERE
ENTITLED UNDER THE LUMP-SUM LEAVE ACT OF 1944, 5 U.S.C. 61B TO PAYMENT
FOR SUCH ANNUAL LEAVE UPON SEPARATION FROM THE SERVICE ON APRIL 30,
1965. ACCORDINGLY, A SETTLEMENT WILL ISSUE IN YOUR FAVOR IN THE AMOUNT
FOUND DUE IN THE NEAR FUTURE.
YOUR SEPARATION FROM THE GOVERNMENT SERVICE WAS EFFECTED PURSUANT TO
5 U.S.C. 2255/A) WHICH READS IN PART AS FOLLOWS:
"* * * AN EMPLOYEE WHO SHALL HAVE ATTAINED THE AGE OF SEVENTY YEARS
AND COMPLETED FIFTEEN YEARS OF SERVICE SHALL BE AUTOMATICALLY SEPARATED
FROM THE SERVICE. SUCH SEPARATION SHALL BE EFFECTIVE ON THE LAST DAY OF
THE MONTH IN WHICH SUCH EMPLOYEE ATTAINS THE AGE OF SEVENTY YEARS * *
*.'
SINCE YOU REACHED THE AGE OF SEVENTY YEARS ON APRIL 22, 1965, AND HAD
MORE THAN FIFTEEN YEARS SERVICE IT WAS MANDATORY THAT YOUR SERVICES BE
TERMINATED ON APRIL 30, 1965. THEREFORE, THE DEPARTMENT OF THE NAVY'S
ACTION IN THAT RESPECT WAS PROPER.
CONCERNING YOUR QUESTION AS TO THE APPLICABILITY OF THE MANDATORY
RETIREMENT LAW TO CONGRESSMEN AND SENATORS YOUR ATTENTION IS INVITED TO
THOSE PROVISIONS OF CIVIL SERVICE RETIREMENT ACT, 5 U.S.C. 2251/B) AND
2255/D) WHICH STATE THAT THE AUTOMATIC SEPARATION REQUIREMENT OF THE ACT
DOES NOT APPLY TO MEMBERS OF CONGRESS. WE ARE NOT AWARE OF THE REASON
FOR THAT EXEMPTION, BUT IT MAY BE BECAUSE THE MEMBERS ARE ELECTED
OFFICIALS.
WE HOPE THE FOREGOING EXPLAINS THE VARIOUS MATTERS TO YOUR
SATISFACTION.
B-142060, JUN. 13, 1966
TO MR. ANTHONY B. CATALDO:
REFERENCE IS MADE TO YOUR LETTERS DATED MAY 27 AND 31, 1965, RELATIVE
TO YOUR REQUEST FOR PAYMENT OF THE AMOUNT OF $8,758 ON THE BASIS OF A
DETERMINATION BY THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF
NEW YORK, THAT YOU HAVE A CHARGING LIEN FOR SUCH AMOUNT AGAINST THE SUM
OF $17,516 WHICH HAS BEEN WITHHELD FROM PAYMENT UNDER NAVY CONTRACT NO.
NBY-21183, AS AMENDED.
CONTRARY TO YOUR STATEMENTS IN THE MATTER, OUR LETTER TO YOU OF MAY
25, 1966, EXPRESSED NO OPINION AS TO THE VALIDITY OF ANY OF THE
CONFLICTING CLAIMS FOR THE AMOUNT OF $17,516 OR PORTIONS THEREOF. ALSO,
ALTHOUGH YOU STATE THAT YOU ARE SURE THAT THE CONTRACTING CONCERN HAS NO
TAX LIABILITY, YOU ARE AGAIN ADVISED THAT THIS IS A MATTER UNDER
INVESTIGATION BY INTERNAL REVENUE SERVICE AND AN OFFSET AGAINST THE SUM
OF $17,516 WILL BE REQUIRED IF THE CONTRACTOR IS, IN FACT, INDEBTED TO
THE UNITED STATES FOR UNPAID TAXES AND ANY APPLICABLE PENALTIES AND
INTEREST.
SO FAR AS CONCERNS YOUR CLAIM NO ACTION BY OUR OFFICE WOULD BE PROPER
AT THIS TIME, REGARDLESS OF THE QUESTION OF TAX LIABILITY, SINCE THE
CLAIM WAS MADE THE SUBJECT OF A SUIT FILED BY YOU IN THE COURT OF CLAIMS
AND THERE IS PENDING BEFORE THE SUPREME COURT OF THE UNITED STATES YOUR
PETITION FOR THE GRANTING OF A WRIT OF CERTIORARI WITH RESPECT TO THE
DISMISSAL OF THE SUIT BY THE COURT OF CLAIMS ON JANUARY 24, 1966. THE
DEPARTMENT OF JUSTICE IS CHARGED WITH THE RESPONSIBILITY OF DEFENDING
SUITS AGAINST THE UNITED STATES AND, UNTIL THE FINAL DISPOSITION OF THE
CASE BY THE FEDERAL COURTS, ANY FURTHER CORRESPONDENCE IN THE MATTER
SHOULD BE CARRIED ON WITH
B-155453, JUN. 13, 1966
TO MR. LOUIE E. MILLER:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 12, 1966, AND
ENCLOSURES, IN EFFECT REQUESTING RECONSIDERATION OF THE CLAIM PREVIOUSLY
PRESENTED BY YOU AND YOUR WIFE, MRS. ELIZABETH MILLER, FOR PAY AND
ALLOWANCES AND 6-MONTHS' DEATH GRATUITY DUE IN THE CASE OF YOUR LATE
SON, CAPTAIN WALDO H. MILLER, UNITED STATES AIR FORCE, WHO DIED ON
OCTOBER 20, 1963.
OUR RECORD SHOWS THAT CAPTAIN WALDO H. MILLER DIED AS THE RESULT OF A
KNIFE WOUND INFLICTED BY HIS WIFE, MRS. SHEILA JO MILLER, APPARENTLY
DURING A SCUFFLE IN THEIR TRAILER WHICH WAS PARKED IN
TRAILER PARK IN FLOROSA, FLORIDA. THERE WERE NO EYE WITNESSES TO TH
HOMICIDE, AND ON JULY 15, 1964, THERE WAS ENTERED A "NOLLE PROSEQUI" ON
A MURDER CHARGE, THAT IS, THE STATE ELECTED NOT TO PROCEED FURTHER IN
THE CASE. THE WIDOW'S CLAIM AS THE DESIGNATED BENEFICIARY FOR THE
ACCRUED PAY AND ALLOWANCES AND AS THE PREFERRED PAYEE (WIDOW) DESIGNATED
IN THE LAW TO RECEIVE THE 6-MONTHS' DEATH GRATUITY WAS DISALLOWED BY
SETTLEMENT OF OUR CLAIMS DIVISION, DATED FEBRUARY 16, 1965, FOR THE
REASON THAT A CLEAR CASE OF SELF-DEFENSE ON HER PART WAS NOT ESTABLISHED
BY THE FACTS AND CIRCUMSTANCES, AS RELATED IN THE INVESTIGATIONAL
REPORTS AND DEPOSITIONS COVERING THE HOMICIDE, AND THAT THE MATTER WAS
DOUBTFUL TO WARRANT PAYMENT TO HER. SHE WAS INFORMED THAT IN SUCH
CIRCUMSTANCES PAYMENT TO HER COULD BE MADE ONLY PURSUANT TO A JUDICIAL
DETERMINATION ESTABLISHING HER RIGHT TO SUCH PAY OR UPON THE SUBMISSION
OF SATISFACTORY EVIDENCE ESTABLISHING THAT THE KILLING OF HER HUSBAND
WAS IN SELF-DEFENSE.
SUBSEQUENTLY, YOUR WIFE AND YOU, AS PARENTS, FILED CLAIM FOR THE PAY
AND ALLOWANCES AND THE 6-MONTHS' DEATH GRATUITY. BY LETTER DATED APRIL
8, 1966, YOU WERE ADVISED THAT UNDER THE ORDER OF PRECEDENCE SET FORTH
IN THE LAWS GOVERNING THE PAYMENT OF THE PAY AND ALLOWANCES (10 U.S.C.
2771) AND THE 6-MONTHS' DEATH GRATUITY (10 U.S.C. 1477) MRS. SHEILA JO
MILLER AS THE DESIGNATED BENEFICIARY AND AS WIDOW WOULD HAVE A PREFERRED
RIGHT TO THE AMOUNT DUE IN THIS CASE. YOU WERE ALSO ADVISED THAT ANY
PAYMENT TO HER REQUIRED SUPPORT BY A JUDICIAL DETERMINATION OR EVIDENCE
AS DESCRIBED IN THE ABOVE-MENTIONED SETTLEMENT OF FEBRUARY 16, 1965.
YOU SAY IN YOUR LETTER OF APRIL 12, 1966, AMONG OTHER THINGS, THAT
THE VETERANS ADMINISTRATION, MINNEAPOLIS, MINNESOTA, MADE AN AWARD TO
YOUR WIFE AND YOU ON ACCOUNT OF YOUR SON'S INSURANCE, AND YOU CONTEND
THAT SINCE MRS. SHEILA JO MILLER REMARRIED ON JULY 16, 1964, SHE NOW
WOULD NOT HAVE ANY "RIGHT" TO THE AMOUNT DUE FROM THE UNITED STATES. IN
SUPPORT OF THAT CONTENTION YOU FURNISHED (1) A COPY OF LETTER DATED
DECEMBER 31, 1964, FROM THE VETERANS ADMINISTRATION REGIONAL OFFICE, ST.
PETERSBURG, FLORIDA, IN WHICH IT IS STATED THAT MRS. SHEILA JO MILLER'S
CLAIM FOR DEPENDENCY AND INDEMNITY COMPENSATION WAS DISALLOWED, AND (2)
A COPY OF AN AFFIDAVIT DATED JULY 12, 1965, BY MR. DRISCOLL OGLESBY,
DEPUTY SHERIFF OF OKALOOSA COUNTY, FLORIDA, SUMMARIZING THE
INVESTIGATION CONDUCTED BY HIM IN CONNECTION WITH THE DEATH OF YOUR SON
FOR USE IN THE CASE OF JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY AND
STATE MUTUAL LIFE ASSURANCE COMPANY OF AMERICA V. SHEILA JO MILLER AND
LOUIE HERMAN MILLER, CIVIL ACTION NO. P-1492, UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF FLORIDA, PENSACOLA DIVISION.
THE LAWS RELATING TO VETERANS' BENEFITS ARE SEPARATE AND DISTINCT
FROM THE LAWS RELATING TO THE SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS
OF THE ARMED FORCES OR THE PAYMENT OF THE 6-MONTHS' DEATH GRATUITY.
HENCE, THE DETERMINATION MADE BY THE VETERANS ADMINISTRATION AS TO THE
ENTITLEMENT OF YOUR WIFE AND YOU TO THE INSURANCE PAYABLE BY THAT
ADMINISTRATION IS NOT CONCLUSIVE OF YOUR ENTITLEMENT TO THE ARREARS OF
PAY AND ALLOWANCES AND THE 6-MONTHS' DEATH GRATUITY. SEE THOMPSON V.
FLEMMING, 188 F.SUPP. 123 (D.ORE., 1960), IN WHICH THE COURT HELD THAT
EACH FACT FINDING AGENCY IS ENTITLED TO MAKE ITS OWN DECISION ON
EVIDENCE BEFORE IT AND THE FACT THAT ANOTHER TRIBUNAL HAS REACHED A
DIFFERENT CONCLUSION ON THE SAME CASE DOES NOT INVALIDATE ANY DECISION
WHICH HAS PROPER EVIDENTIARY SUPPORT, EVEN THOUGH BOTH AGENCIES ARE
THOSE OF THE FEDERAL GOVERNMENT. THUS, THE DETERMINATION OF THE
VETERANS ADMINISTRATION THAT MRS. SHEILA JO MILLER IS NOT ENTITLED TO
DEPENDENCY AND INDEMNITY COMPENSATION MAY NOT BE ACCEPTED BY THIS OFFICE
AS PRECLUDING CONSIDERATION OF HER CLAIM FOR THE PAY AND ALLOWANCES AND
6-MONTHS' DEATH GRATUITY IF AND WHEN A JUDICIAL DETERMINATION IS MADE IN
HER FAVOR OR UPON RECEIPT OF EVIDENCE CLEARLY ESTABLISHING THAT THE
KILLING OF THE LATE CAPTAIN MILLER WAS IN SELF-DEFENSE. FURTHERMORE,
THE FACT THAT SHE REMARRIED WOULD NOT BY ITSELF BAR HER ENTITLEMENT, IF
OTHERWISE ESTABLISHED, TO THE AMOUNTS CLAIMED BY HER INASMUCH AS HER
RELATIONSHIP TO THE LATE CAPTAIN MILLER FOR THE PURPOSE OF THE GOVERNING
LAWS MUST BE CONSIDERED AS OF THE DATE OF HIS DEATH.
SINCE MRS. SHEILA JO MILLER (NOW MRS. SHEILA JO IVES OR IVEY,
ACCORDING TO YOUR LETTER) MAY HAVE A PREFERRED RIGHT TO THE PAY AND
ALLOWANCES AS THE DESIGNATED BENEFICIARY OF THE LATE CAPTAIN MILLER (10
U.S.C. 2771) AND TO THE 6-MONTHS' DEATH GRATUITY AS HIS WIDOW (10 U.S.C.
1477) AND SINCE SUCH RIGHT MAY BE ESTABLISHED BY A JUDICIAL
DETERMINATION IN HER FAVOR OR BY SATISFACTORY EVIDENCE ESTABLISHING THAT
SHE ACTED IN SELF-DEFENSE WHEN SHE KILLED THE LATE CAPTAIN MILLER, THIS
OFFICE IS WITHOUT AUTHORITY ON THE PRESENT RECORD TO ALLOW TO YOUR WIFE
AND YOU, AS PARENTS, THE AMOUNT DUE FROM THE UNITED STATES. ACCORDINGLY
FURTHER ACTION ON YOUR CLAIM AT THIS TIME IS NOT WARRANTED.
IN ACCORDANCE WITH YOUR REQUEST, THE PAPERS WHICH ACCOMPANIED YOUR
LETTER ARE RETURNED.
B-156129, JUN. 13, 1966
TO DENNING AND WOHLSTETTER:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 17, 1966, IN WHICH YOU
REQUEST RECONSIDERATION OF THE DECISION DATED AUGUST 17, 1965, B-156129,
WHICH SUSTAINED IN PART THE SETTLEMENT DISALLOWING A CLAIM OF VON DER
AHE VAN LINES FOR $549.64 FOR SERVICES PERFORMED UNDER A GOVERNMENT BILL
OF LADING ISSUED TO ADVANCE CONTAINER TRANSIT. THE LATTER COMPANY
APPARENTLY IS A SUBSIDIARY OF VON DER AHE VAN LINES.
THE SERVICES IN QUESTION CONSISTED OF THE TRANSPORTATION OF 1,510
POUNDS OF HOUSEHOLD GOODS FROM FORT WAINWRIGHT, ALASKA, TO WAVERLY,
IOWA. THE SHIPMENT WAS TENDERED TO ADVANCE CONTAINER TRANSIT'S ORIGIN
AGENT FOR CARRIAGE IN ACCORDANCE WITH REVISION NO. 49 TO ADVANCE
CONTAINER TRANSIT'S FREIGHT TARIFF NO. 1, EFFECTIVE AUGUST 15, 1961, AND
THE GOVERNMENT BILL OF LADING AUTHORIZING THE SHIPMENT SHOWS ON ITS FACE
THAT IT WAS SURRENDERED TO THE FORWARDER'S AGENT AT ORIGIN. THE
SHIPMENT WAS DELIVERED AT DESTINATION BY UNIVERSAL CARLOADING AND
DISTRIBUTING COMPANY. THAT COMPANY, A REGULATED FORWARDER SUBJECT TO
THE PROVISIONS OF PART IV OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 1001
ET SEQ., ACCEPTED THE SUBJECT SHIPMENT AT SEATTLE, WASHINGTON, FROM
ALASKA TRUCK TRANSPORT, INC., AS SHIPPER. THERE IS NO INDICATION IN THE
COMMERCIAL BILL OF LADING OR IN ANY OF THE PAPERS RECEIVED WITH
UNIVERSAL'S BILLING FOR TRANSPORTATION CHARGES THAT ALASKA TRUCK
TRANSPORT WAS IN ANY WAY ASSOCIATED WITH ADVANCE CONTAINER TRANSIT, VON
DER AHE, OR ARCTIC MOVING COMPANY.
UNDER ADVANCE CONTAINER TRANSIT'S RATE TENDER, THE TOTAL CHARGES FOR
THE TRANSPORTATION, INCLUDING STORAGE-IN-TRANSIT AND ACCESSORIAL
SERVICES, WERE $549.64. THIS SUM HAS BEEN PAID TO UNIVERSAL CARLOADING
AND DISTRIBUTING COMPANY ($508.18) AND VON DER AHE VAN LINES ($41.46).
THE RECORD INDICATES THAT NEITHER VON DER AHE VAN LINES, INC., NOR
ADVANCE CONTAINER TRANSIT, INC., MADE ANY PAYMENT TO UNIVERSAL, ALTHOUGH
VON DER AHE VAN LINES, INC., IS SHOWN TO HAVE PAID ARCTIC MOVING COMPANY
$197.91, OF WHICH $182.71 WAS FOR ORIGIN SERVICES AND $15.20 WAS FOR 19
PADS. IT IS YOUR CONTENTION THAT THE PAYMENT MADE BY THE GOVERNMENT TO
UNIVERSAL CARLOADING AND DISTRIBUTING COMPANY WAS ERRONEOUS BECAUSE THAT
FORWARDER WAS NOT IN PRIVITY WITH THE CONTRACT OF CARRIAGE AND WAS NOT
AUTHORIZED BY ADVANCE CONTAINER TRANSIT TO RECEIVE PAYMENT FOR THE
SERVICES IN QUESTION.
ALTHOUGH THE RECORD IN THIS MATTER CONTAINS JUSTIFICATION FOR DEALING
WITH UNIVERSAL CARLOADING AS THE PARTY ENTITLED TO PAYMENT OF THE
TRANSPORTATION CHARGES, THERE APPARENTLY WAS NO PRIVITY OF
CONTRACT BETWEEN THE UNITED STATES AND UNIVERSAL CARLOADING AND THE
LATTER HAD NO RIGHT TO PAYMENT ON THAT GROUND. WE, THEREFORE, WOULD
AGREE WITH THE GENERAL PROPOSITION THAT ORDINARILY, ABSENT ANY SPECIAL
CIRCUMSTANCES, WHEN THE GOVERNMENT OFFERS A SHIPMENT MOVING BY THE
DOOR-TO-DOOR CONTAINER METHOD TO AN EXEMPT FREIGHT FORWARDER OR AN
ORGANIZATION OTHERWISE OPERATING AS A FORWARDER AND ASSUMING
RESPONSIBILITY FOR THE ENTIRE SHIPMENT, PAYMENT SHOULD BE MADE ONLY TO
THE PARTY WITH WHICH THE GOVERNMENT MADE THE CONTRACT, THE FORWARDER
SHOWN ON THE GOVERNMENT BILL OF LADING AS ACCEPTING A SHIPMENT FOR
TRANSPORTATION TO THE INDICATED DESTINATION.
IN OUR OPINION, HOWEVER, THE FACTS AND CIRCUMSTANCES OF THIS CASE ARE
SUCH AS TO JUSTIFY AN INFERENCE OF APPARENT AUTHORITY ON THE PART OF
UNIVERSAL CARLOADING TO BILL FOR THE CHARGES. IT SEEMS CLEAR THAT
UNIVERSAL CARLOADING WAS ADVANCE CONTAINER TRANSIT'S AGENT FOR DELIVERY.
IF IT WERE NOT, THEN IT COULD NOT BE SAID THAT ADVANCE CONTAINER
TRANSIT PERFORMED THE CONTRACT AND THE PAYMENT TO UNIVERSAL CARLOADING
WOULD HAVE BEEN PROPER BECAUSE THE GOVERNMENT RECEIVED THE BENEFIT OF
THAT FORWARDER'S SERVICES. THEREFORE, ONE ELEMENT OF APPARENT AUTHORITY
WAS PRESENT: THERE WAS AN AGENCY RELATIONSHIP ON THE PART OF UNIVERSAL
CARLOADING TO ADVANCE CONTAINER TRANSIT.
IN ADDITION, UNIVERSAL CARLOADING HAD POSSESSION OF THE ONE DOCUMENT
WHICH WOULD ENABLE EITHER IT OR ITS PRINCIPAL TO BILL FOR THE CHARGES;
NAMELY, THE ORIGINAL GOVERNMENT BILL OF LADING. IF UNIVERSAL CARLOADING
WERE NOT IN FACT AUTHORIZED BY ITS PRINCIPAL TO BILL FOR THE CHARGES,
THEN ADVANCE CONTAINER TRANSIT WAS NEGLIGENT IN ALLOWING UNIVERSAL
CARLOADING TO OBTAIN POSSESSION OF THE BILL OF LADING AND THEREBY
REPRESENT THAT IT WAS AUTHORIZED TO BILL FOR THE SERVICES. FINALLY, IN
RELIANCE UPON THE REPRESENTATION MADE BY UNIVERSAL CARLOADING, SUPPORTED
BY THE DOCUMENTARY INDICIA OF APPARENT AUTHORITY, THE DISBURSING OFFICER
PAID OUT GOVERNMENT FUNDS FOR THE SERVICES IN QUESTION. IN OUR OPINION,
THIS PAYMENT WAS EFFECTIVE TO DISCHARGE THE GOVERNMENT'S
OBLIGATION ON THE CONTRACT TO THE EXTENT OF THE AMOUNT PAID.
ORDINARILY THE PAYMENT IN QUESTION WOULD NOT HAVE BEEN MADE BECAUSE
THE DISBURSING OFFICERS USUALLY DO NOT OBSERVE THE RIGHT OF A CORPORATE
AGENT TO BILL IN ITS OWN NAME FOR SERVICES PERFORMED UNDER A CONTRACT
MADE WITH ITS PRINCIPAL. THIS IS BECAUSE OF THE PROHIBITIONS CONTAINED
IN THE SO-CALLED ANTI-ASSIGNMENT STATUTES, 31 U.S.C. 203 AND 41
U.S.C. 15. IT IS GENERALLY RECOGNIZED, HOWEVER, THAT THE PROTECTION OF
THE ANTI-ASSIGNMENT STATUTES CAN BE WAIVED AND THAT SUCH WAIVER CANNOT
BE MADE THE BASIS FOR IMPEACHMENT BY THE PRINCIPAL OF THE SETTLEMENT
MADE WITH HIS AGENT. BAILEY V. UNITED STATES, 109 U.S. 432 (1883);
LOPEZ V. UNITED STATES, 24 CT.CL. 84 (1889); BANK OF CALIFORNIA,
NATIONAL ASS-N. V. COMMISSIONER OF INTERNAL REVENUE, 9TH CIR., 133 F.2D
428 (1943).
AS STATED ABOVE, THE TOTAL AMOUNT DUE FOR THE SERVICES IN QUESTION
HAS BEEN PAID TO VON DER AHE VAN LINES AND TO UNIVERSAL CARLOADING AND
DISTRIBUTING COMPANY. FOR THE REASONS STATED, THE CONCLUSION REACHED IN
THE PRIOR DECISION IS REAFFIRMED, AND NO ADDITIONAL CHARGES ARE PAYABLE
FOR THE TRANSPORTATION OF THE SHIPMENT IN QUESTION.
B-156727, JUN. 13, 1966
TO GENTEX CORPORATION:
WE REFER TO YOUR LETTER OF MAY 10, 1966, RESTATING YOUR POSITION IN
REGARD TO OUR DECISION B-156727, OCTOBER 7, 1965, DENYING YOUR PROTEST
AGAINST THE PROCUREMENT OF HGU-7/P FLYING HELMETS BY THE DEPARTMENT OF
THE AIR FORCE UNDER SPECIFICATIONS WHICH ARE ALLEGED TO INCORPORATE
FEATURES PROPRIETARY TO GENTEX, AND OUR RECONSIDERATION OF THAT DECISION
DATED FEBRUARY 14, 1966.
ON THE FIRST PAGE OF YOUR LETTER YOU STATE THAT OUR DECISION WAS
"BASED ON CLEAR ERROR, FACTUAL GAPS, AND SELF-SERVING CONCLUSIONS.' WE
CONTINUE TO BE OF THE VIEW THAT OUR DISAGREEMENTS HAVE ARISEN OUT OF
DIFFERENCES BETWEEN YOU AND THE AIR FORCE AS TO THE RELEVANT FACTUAL
SITUATION. IN THIS CIRCUMSTANCE WE CAN ONLY REITERATE OUR POSITION THAT
OUR OFFICE IS NOT ABLE, BECAUSE OF ITS LIMITED POWERS, TO DECIDE FACTUAL
CONTROVERSIES SUCH AS THIS AND, WHEN ONE ARISES, WE MUST ACCEPT THE
DEPARTMENT'S STATEMENT.
WE NOTE THAT, WHILE YOU HAVE RAISED CERTAIN QUESTIONS, YOU HAVE
PRESENTED NO NEW EVIDENCE. THE MATTER HAS BEEN THOROUGHLY CONSIDERED
TWICE BEFORE AND, AS BEFORE, WE SUGGEST YOU PURSUE YOUR REMEDIES IN A
MORE APPROPRIATE FORUM. IN THE ABSENCE OF ANY NEW EVIDENCE THIS LETTER
WILL SERVE TO CLOSE OUR FILE IN THE MATTER.
B-157726, JUN. 13, 1966
TO CONSOLIDATED ELECTRODYNAMICS CORPORATION:
REFERENCE IS MADE TO YOUR LETTER OF APRIL 1, 1966, REQUESTING
INFORMATION PERTAINING TO THE PROCEDURE AND JUSTIFICATION USED BY THE
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), JOHN F. KENNEDY
SPACE CENTER, IN MAKING A SOLE-SOURCE AWARD IN CONNECTION WITH EQUIPMENT
ORIGINALLY ADVERTISED FOR UNDER INVITATION FOR BIDS NO. CC-31-6, WHICH
WAS THE SUBJECT OF OUR DECISION B-157726, DATED JANUARY 28, 1966.
IN OUR DECISION OF JANUARY 28, 1966, TO THE ADMINISTRATOR, NASA, WE
UPHELD YOUR PROTEST AGAINST ANY AWARD OF CONTRACT UNDER INVITATION FOR
BIDS NO. CC-31-6, IN VIEW OF THE RESTRICTIVE CHARACTER OF THE INVITATION
PURCHASE DESCRIPTION. A COPY OF THE DECISION OF JANUARY 28, 1966, WAS
SENT TO YOU FOR YOUR INFORMATION.
REGARDING YOUR REQUEST AS TO THE PROCEDURE AND JUSTIFICATION USED BY
NASA IN MAKING A SOLE-SOURCE AWARD OF THE EQUIPMENT, THE PROCURING
AGENCY REPORTS THAT ON JANUARY 24, 1966, BECAUSE OF THE EXTREME URGENCY
OF THE SUBJECT PROCUREMENT, INQUIRY WAS MADE TO OUR OFFICE AS TO THE
STATUS OF OUR DECISION ON YOUR INITIAL PROTEST. AT THAT TIME THE
OPINION WAS EXPRESSED THAT YOUR PROTEST WOULD BE UPHELD AND THAT THE
INVITATION IN QUESTION WAS RESTRICTIVE. BASED ON THE FOREGOING, THE
INVITATION WAS CANCELED AND KENNEDY SPACE CENTER PROCEEDED TO NEGOTIATE
WITH AMPEX CORPORATION FOR A SOLE-SOURCE AWARD. SUCH NEGOTIATING ACTION
WAS IN CONSONANCE WITH THE PENULTIMATE PARAGRAPH OF OUR DECISION OF
JANUARY 28, 1966, IN WHICH WE STATED AS FOLLOWS:
"IT APPEARS FROM THE RECORD THAT THE SALIENT CHARACTERISTICS OF THE
BRAND NAME EQUIPMENT, INCLUDING DESIGN FEATURES, ARE NECESSARY TO MEET
THE MINIMUM NEEDS OF THE GOVERNMENT. IF THAT BE A FACT, WE DIRECT YOUR
ATTENTION TO THE ABOVE-QUOTED PORTION OF DECISION B-155826 WHEREIN
RESORT TO NEGOTIATION PROCEDURES IS INDICATED.'
AS A PREREQUISITE TO NEGOTIATING THE SUBJECT PROCUREMENT, THE
CONTRACTING OFFICER MADE A DETERMINATION AND FINDINGS THAT THE
PROCUREMENT IS FOR EQUIPMENT FOR WHICH IT IS IMPRACTICABLE TO SECURE
COMPETITION BY FORMAL ADVERTISING AND THAT NEGOTIATION OF A CONTRACT FOR
THIS PROCUREMENT IS AUTHORIZED PURSUANT TO 10 U.S.C. 2304 (A) (10), AS
CONTEMPLATED BY PARAGRAPH 3.210-2 (I) OF THE NASA PROCUREMENT
REGULATION. THE REASONS AND JUSTIFICATION USED BY NASA FOR THE
NEGOTIATION OF THIS PROCUREMENT AS DISCUSSED IN THE DETERMINATION AND
FINDINGS ARE AS FOLLOWS:
"1. THE NASA/KSC PROPOSES TO ENTER INTO A CONTRACT FOR 18 EACH, HIGH
PERFORMANCE, WIDEBAND INSTRUMENTATION TAPE RECORDER SYSTEMS, OF VARIOUS
CONFIGURATIONS, WITH VARYING ACCESSORIES/FEATURES, AMPEX CORPORATION
MODELS FR1400/600, TOGETHER WITH MANUALS, INSTALLATION AND ACCEPTANCE
CHECKOUT SERVICES, AS MORE PARTICULARLY DESCRIBED IN TECHNICAL EXHIBIT
K-EF3-65-12.
THE TOTAL ESTIMATED COST IS $900,000 FOR WHICH FUNDS ARE BOTH
AUTHORIZED AND AVAILABLE.
"2. THE TAPE RECORDER SYSTEMS ARE REQUIRED BY THE TELEMETRIC SYSTEMS
DIVISION, INS-3, FOR THE ACQUISITION AND REDUCTION OF TELEMETRY DATA
DURING PRE-EVENT, INFLIGHT AND POST-EVENT LAUNCH OPERATIONS OF THE
SATURN 1B, SATURN V AND APOLLO VEHICLES. THE TYPE AND APPLICATION OF
DATA WHICH WILL BE PROCESSED ON THESE SYSTEMS ARE VITALLY NECESSARY TO
SPACE VEHICLE DEVELOPMENT ENGINEERS OF THE NASA/PRIME AEROSPACE STAGE
CONTRACTOR'S TEAMS (NORTH AMERICAN, DOUGLAS, CHRYSLER AND BOEING).
WITHOUT THE TIMELY AND QUALITY FLOW OF TELEMETRY DATA, CRUCIAL
ENGINEERING DECISIONS HAVING A BEARING ON THE NEED FOR SPACE VEHICLE
CONFIGURATION DESIGN CHANGES BEFORE THE NEXT VEHICLE ACCEPTANCE CHECKOUT
TEST MUST BE DELAYED WITH THE CONSEQUENCE OF PROBLEMATICAL SLIPPAGES IN
THE CRITICAL TIME SCHEDULES OF THE SATURN 1B, II, IVB AND V AND APOLLO
SPACE PROGRAMS.
"3. I HEREBY FIND THAT USE OF FORMAL ADVERTISING IS NOT PRACTICABLE
AND FEASIBLE FOR THE FOLLOWING REASONS:
"A. THE RECORDERS WITH THE MINIMUM OPERATIONAL AND FUNCTIONAL
CAPABILITIES NECESSARY TO EFFECTIVELY AND EFFICIENTLY ACCOMPLISH THE
MISSION TASKS ASSIGNED TO THE TELEMETRIC SYSTEMS DIVISION IN SUPPORT OF
THE SATURN/APOLLO PROGRAM ARE OBTAINABLE FROM ONLY ONE FIRM, AMPEX
CORPORATION, THE SOLE SOURCE OF SUPPLY. THE EXISTENCE OF THIS FACTUAL
SITUATION IS AMPLIFIED BY THE FACT THAT INVITATION FOR BIDS CC31-6
FAILED TO MATERIALIZE IN RECEIPT OF COMPETITIVE BIDS.
"B. THE AFOREMENTIONED INVITATION, WHICH WAS ISSUED 27 AUGUST 1965
AND OPENED 21 DECEMBER 1965 WAS THE SUBJECT OF A PROTEST BY CONSOLIDATED
ELECTRODYNAMICS CORPORATION WITH THE U.S. COMPTROLLER GENERAL'S OFFICE.
THE PROTESTOR ASSERTED THAT CERTAIN ASPECTS OF THE BRAND NAME
SPECIFICATIONS WERE INCAPABLE OF COMPLIANCE BECAUSE OF INCLUSION OF
RESTRICTIVE PROPRIETARY DESIGN DATA, WHILE THE GOVERNMENT'S CONTENTION
WAS THAT THEY WERE INCLUDED AS BEING INDICATIVE OF THE DEGREE OF THE
GOVERNMENT'S MINIMUM OPERATIONAL AND FUNCTIONAL CAPABILITIES REQUIRED
FOR THE USE AND PURPOSE INTENDED.
"C. THE U.S. COMPTROLLER GENERAL'S DECISION ALLUDES TO THE
PROTESTOR'S ASSERTIONS THAT THE PURCHASE DESCRIPTION INCLUDED CERTAIN
RESTRICTIVE DESIGN FEATURES PECULIAR TO THE BRAND NAME PRODUCT NAMED IN
THE INVITATION, AND THEREFORE, CONSIDERS THE INVITATION DEFICIENT AND
INVALID FOR PURPOSES OF AN AWARD THEREUNDER.
"D. THE SUBSTITUTION OF ANY OTHER MAKE RECORDERS, NOT MEETING THE
MINIMUM OPERATIONAL AND FUNCTIONAL CAPABILITIES, AS REPRESENTED BY THE
AMPEX MODEL FR 1400/600 DESCRIPTIVE SPECIFICATIONS IN CANCELLED IFB 31-6
WOULD DENY THE TECHNICAL USER THE CAPABILITIES REQUIRED FOR THE
SUCCESSFUL ACCOMPLISHMENT OF ITS ASSIGNED MISSION TASKS AND
RESPONSIBILITY, FOR WHICH THE RECORDERS ARE REQUIRED.
"E. THE IMPACT OF THE DELAY (SOME 4 MONTHS) FROM RECEIPT AND
RESOLUTION OF THE PROTEST HAS MATERIALLY CAUSED A CONDITION OF
"COMPELLING URGENCY" FOR THE RECORDERS. IMMEDIATE AWARD AND DELIVERY BY
THE SHORTEST POSSIBLE TIME IS GRAVELY IMPERATIVE TO MINIMIZE FINANCIAL
AND OPERATIONAL ADVERSITIES ALREADY ENCOUNTERED BY THE TELEMETRIC SYSTEM
DIVISION. BECAUSE OF THEIR PRIMARY ASSIGNMENT TO THE SATURN 1B LAUNCH
SERIES, ESPECIALLY THE 202 LAUNCH SCHEDULED FOR THE SECOND QUARTER OF
THIS YEAR, IT IS ABSOLUTELY ESSENTIAL THAT ALL RECORDERS BE ON HAND TO
ENABLE THE TECHNICAL ORGANIZATION TO CARRY OUT ITS MISSION TASKS AND
COMMITMENTS TO OTHER NASA TECHNICAL ORGANIZATIONS.'
A COPY OF THE FINDINGS QUOTED ABOVE WAS FURNISHED TO MR. WILLIAM HUEY
OF YOUR CORPORATION AT HIS REQUEST BY OUR OFFICE.
UNDER THE PROVISIONS OF 10 U.S.C. 2304 (A) (10) PURCHASES AND
CONTRACTS MAY BE NEGOTIATED IF IT IS IMPRACTICABLE TO OBTAIN
COMPETITION. IMPLEMENTING THAT AUTHORITY, NASA PROCUREMENT REGULATION
3.210-2 (I) AUTHORIZES NEGOTIATION "WHEN SUPPLIES OR SERVICES CAN BE
OBTAINED FROM ONLY ONE PERSON OR FIRM ("SOLE SOURCE OF SUPPLY").' UNDER
SUCH REGULATION THE REQUIRED DETERMINATION AND FINDINGS WAS MADE TO
SUPPORT THE NEGOTIATING AUTHORITY AND SUCH FINDING IS BY LAW MADE FINAL.
SEE SECTION 2310 (B), TITLE 10, UNITED STATES CODE, AS AMENDED BY
PUBLIC LAW 87-653, APPROVED SEPTEMBER 10, 1962.
WE TRUST THAT THE FOREGOING INFORMATION EXPLAINS THE PROCEDURE AND
JUSTIFICATION USED BY THE PROCURING AGENCY IN MAKING THE NEGOTIATED
AWARD TO AMPEX IN THIS PROCUREMENT.
B-158563, JUN. 13, 1966
TO B AND W MECHANICAL CONTRACTORS, INCORPORATED:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 8, 1966, ADDRESSED
TO THE BUREAU OF YARDS AND DOCKS (NOW DESIGNATED NAVY FACILITIES
ENGINEERING COMMAND), CHARLESTON, SOUTH CAROLINA, PROTESTING THE AWARD
OF CONTRACT NBY 74094, INTERIM REPAIRS TO SECOND BATTALION BARRACKS,
MARINE CORPS RECRUIT DEPOT, PARRIS ISLAND, SOUTH CAROLINA.
UNDER AN EARLIER INVITATION FOR THE PROJECT, BIDS WERE SCHEDULED FOR
OPENING ON JANUARY 25, 1966, AT 11:00 A.M., EASTERN STANDARD TIME. ON
THIS DATE YOU FILED A TELEGRAM AT THE CHARLESTON, SOUTH CAROLINA,
WESTERN UNION OFFICE AT 10:39 A.M., INTENDING TO REDUCE YOUR BID PRICE
FOR THE WORK. THE TELEGRAM, DELAYED IN TRANSMISSION, WAS NOT RECEIVED
AT THE PARRIS ISLAND COMMUNICATION CENTER UNTIL 2:10 P.M., AND DID NOT
REACH THE OFFICER IN CHARGE OF BID OPENING UNTIL THE FOLLOWING MORNING.
THIS MODIFICATION WOULD HAVE MADE YOU THE LOW BIDDER, BUT IT WAS
DETERMINED BY THE NAVAL FACILITIES ENGINEERING COMMAND (BUREAU OF YARDS
AND DOCKS), AND THE OFFICER IN CHARGE OF CONSTRUCTION, THAT THE
TELEGRAM, FILED 21 MINUTES BEFORE BID OPENING, WAS NOT FILED IN
SUFFICIENT TIME TO HAVE BEEN DELIVERED PRIOR TO BID OPENING BY NORMAL
TRANSMISSION PROCEDURES.
IN A LETTER DATED FEBRUARY 21, 1966, ADDRESSED TO OUR OFFICE, YOU
PROTESTED AWARD OF THE ORIGINAL CONTRACT TO ANYONE BUT YOURSELF. IT WAS
THEREAFTER DETERMINED BY THE NAVAL FACILITIES ENGINEERING COMMAND
(BUREAU OF YARDS AND DOCKS) TO REJECT ALL BIDS AND READVERTISE THE
PROJECT UNDER REVISED SPECIFICATIONS. AS A RESULT, WE CLOSED OUR FILE
ON THE MATTER WITHOUT DECIDING WHETHER YOUR TELEGRAPHIC BID MODIFICATION
SHOULD HAVE BEEN CONSIDERED.
A REVISED INVITATION WAS ISSUED ON MARCH 18, 1966. BIDS WERE OPENED
AT THE SCHEDULED TIME, 1:00 A.M., EASTERN STANDARD TIME, APRIL 5, 1966,
AT THE MARINE CORPS DEPOT, PARRIS ISLAND, SOUTH CAROLINA. YOU SUBMITTED
THE APPARENT LOW BID OF $176,539 FOR ITEM I, AND $171,539 FOR ITEM 2.
AT 11:35 A.M. OF THAT MORNING THE OFFICER IN CHARGE OF CONSTRUCTION
TELEPHONED THE BID OPENING OFFICE FOR ADVICE THAT A TELEGRAPHIC BID
MODIFICATION HAD BEEN RECEIVED AT THE MARINE CORPS COMMUNICATIONS CENTER
AT 11:27 A.M. THE TELEGRAM, FROM H. L. GROHNE COMPANY (HEREAFTER
GROHNE), DECATUR, ILLINOIS, REDUCED THE FIRM'S BID PRICES OF $198,730
FOR ITEM 1 AND $191,730 FOR ITEM 2 BY $60,000 AND $27,000 RESPECTIVELY,
THEREBY MAKING GROHNE THE LOWEST BIDDER ON BOTH ITEMS.
THE RECORD ESTABLISHES THAT GROHNE'S TELEGRAPHIC BID MODIFICATION WAS
FILED WITH THE DECATUR, ILLINOIS, OFFICE OF THE WESTERN UNION TELEGRAPH
COMPANY, AT 9:07 A.M., CENTRAL STANDARD TIME 10:07 A.M., E.S.T.). THE
MANAGER OF THE WESTERN UNION OPERATING DEPARTMENT IN DECATUR, ILLINOIS,
STATES THAT IT WOULD BE REASONABLE TO EXPECT DELIVERY OF THE MESSAGE,
MARKED FOR RUSH HANDLING, PRIOR TO 10:00 A.M., CENTRAL STANDARD TIME
(11:00 A.M., E.S.T.) AND THAT BECAUSE OF A TORNADO WHICH HAD SWEPT
THROUGH FLORIDA ON APRIL 3, 1966, WESTERN UNION FACILITIES IN THE
SOUTHERN STATES WERE DISRUPTED AND THE REMAINING FACILITIES WERE
OVERTAXED WITH MESSAGES TO THE STRICKEN AREA. THEREFORE, DELIVERY OF
GROHNE'S TELEGRAM WAS DELAYED AND WAS NOT DELIVERED UNTIL AFTER BID
OPENING.
BASED UPON THIS STATEMENT OF THE WESTERN UNION COMPANY IT WAS
DETERMINED BY THE NAVAL FACILITIES ENGINEERING COMMAND (BUREAU OF YARDS
AND DOCKS) THAT THE MODIFICATION WAS LATE AS A RESULT OF A DELAY BY THE
TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE AND, PURSUANT
TO THE INVITATION PROVISIONS, SHOULD BE ACCEPTED.
THE INVITATION CONTAINED THE FOLLOWING PROVISION:
"7. LATE BIDS AND MODIFICATIONS OR WITHDRAWALS. (A) BIDS AND
MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AT THE OFFICE DESIGNATED
IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS
WILL NOT BE CONSIDERED UNLESS: (1) THEY ARE RECEIVED BEFORE AWARD IS
MADE; AND EITHER (2) THEY ARE SENT BY * * * TELEGRAPH IF AUTHORIZED,
AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE
SOLELY TO DELAY IN THE MAILS, OR DELAY BY THE TELEGRAPH COMPANY, FOR
WHICH THE BIDDER WAS NOT RESPONSIBLE; * * *.'
AWARD WAS MADE TO GROHNE ON APRIL 26, 1966.
YOU HAVE ASSERTED THAT THE ACCEPTANCE OF GROHNE'S LATE TELEGRAPHIC
BID MODIFICATION IS INCONSISTENT WITH THE REJECTION OF YOUR LATE
TELEGRAPHIC BID MODIFICATION FOR THE INVITATION OPENED JANUARY 25, 1966.
AS INDICATED PREVIOUSLY, SINCE ALL BIDS WERE REJECTED UNDER THE EARLIER
INVITATION TO PERMIT READVERTISING UNDER REVISED SPECIFICATIONS, WHETHER
YOUR TELEGRAM SHOULD HAVE BEEN CONSIDERED AS TIMELY FILED BECAME
ACADEMIC AND UNNECESSARY TO DECIDE.
THE ONLY ISSUE BEFORE US IS WHETHER THE CONTRACTING OFFICER WAS
CORRECT IN DETERMINING THAT THE GROHNE TELEGRAM, FILED 53 MINUTES BEFORE
BID OPENING, WAS FILED IN SUFFICIENT TIME FOR THE TELEGRAM TO HAVE BEEN
DELIVERED ON TIME BY NORMAL TRANSMISSION PROCEDURES. IT SHOULD BE NOTED
THAT THE GREATER DISTANCE INVOLVED IN FORWARDING THE GROHNE TELEGRAM
SHOULD NOT APPRECIABLY AFFECT THE TRANSMISSION TIME.
THE TEST OF WHETHER A TELEGRAPHIC BID MODIFICATION RECEIVED LATE IS
ACCEPTABLE OR NOT IS THREEFOLD. FIRST, THE BID MODIFICATION MUST HAVE
BEEN FILED IN TIME FOR RECEIPT BY BID OPENING TIME BY NORMAL
TRANSMISSION PROCEDURE. SECOND, THERE MUST BE A SUBSEQUENT DELAY BY THE
TELEGRAPH COMPANY THROUGH NO FAULT OR NEGLECT ON THE PART OF THE BIDDER.
AND THIRD, THAT DELAY MUST BE ABNORMAL DELAY OR TIME BEYOND THAT
USUALLY ENCOUNTERED UNDER NORMAL TRANSMISSION PROCEDURE. SEE 40 COMP.
GEN. 290 (1960); 39 COMP. GEN. 586 (1960). THUS A LATE TELEGRAPHIC
MODIFICATION MUST MEET ALL THREE OF THE ELEMENTS OF THE TEST IN ORDER TO
BE ACCEPTABLE. IT HAS BEEN DETERMINED THAT THE GROHNE BID MODIFICATION
WAS FILED IN SUFFICIENT TIME TO HAVE BEEN RECEIVED IN NORMAL
TRANSMISSION PROCEDURE, THAT THE DELAY WAS CAUSED SOLELY BY THE
TELEGRAPH COMPANY, AND THAT THE DELAY WAS ABNORMAL.
IN VIEW OF THE FOREGOING WE FIND NO LEGAL OBJECTION TO THE
DETERMINATION TO ACCEPT THE TELEGRAPHIC MODIFICATION OF H. L. GROHNE
COMPANY. YOUR PROTEST MUST, THEREFORE, BE DENIED.
B-158768, JUN. 13, 1966
TO AUTHORIZED CERTIFYING OFFICER, BUREAU OF MINES, UNITED STATES
DEPARTMENT OF THE INTERIOR:
YOUR LETTER OF MARCH 18, 1966, REQUESTS OUR DECISION WHETHER THE
AMOUNT OF $117.50 STATED ON THE ENCLOSED TRAVEL VOUCHER PROPERLY IS FOR
PAYMENT TO MR. RAYMOND P. MALONEY IN ACCORDANCE WITH TRAVEL
AUTHORIZATION NO. J-T-1 DATED JULY 9, 1965, WHICH WAS ISSUED TO HIM FOR
THE PURPOSE OF TAKING LEAVE BETWEEN TOURS OF DUTY AT JUNEAU, ALASKA, IN
CONSIDERATION OF HIS AGREEMENT DATED JULY 14, 1965, PURSUANT TO PUB.L.
737 APPROVED AUGUST 31, 1954, 5 U.S.C. 73B-3 (A).
THE TRAVEL AUTHORIZATION AND THE AGREEMENT INDICATED THAT MR.
MALONEY COULD TRAVEL AT GOVERNMENT EXPENSE BY "COMMON CARRIER" FROM
JUNEAU VIA SAN FRANCISCO-RENO-DENVER-MITCHELL, SOUTH DAKOTA, TO CHICAGO,
ILLINOIS, AND RETURN VIA SPOKANE, WASHINGTON, TO JUNEAU. SUCH ITINERARY
TO CHICAGO AS THE DESTINATION LEAVE POINT WAS AUTHORIZED IN LIEU OF
TRAVEL TO PITTSBURGH, PENNSYLVANIA, HIS ACTUAL PLACE OF RESIDENCE
DESIGNATED AT THE TIME OF HIS APPOINTMENT OR TRANSFER TO JUNEAU.
THE SUBMITTED PAPERS DO NOT INDICATE ANY OFFICIAL DUTY WAS TO BE
PERFORMED AT SAN FRANCISCO, RENO OR DENVER. HENCE, THOSE POINTS ARE FOR
EXCLUSION IN COMPUTING THE COMPARATIVE COSTS OF PROPER TRAVEL TO
CHICAGO. IN HIS CASE ONLY THE CHICAGO DESTINATION IS APPLICABLE FOR
PURPOSES OF LEAVE, UNDER THE CITED LAW, WHICH IT APPEARS HE REQUESTED IN
LIEU OF A USUALLY TRAVELED DIRECT ROUND-TRIP ROUTE FROM JUNEAU TO
PITTSBURGH. THAT IS TO SAY IT APPEARS THAT IN ARRANGING FOR THE ,HOME
LEAVE" MR. MALONEY CHOSE NOT TO GO TO PITTSBURGH AS HIS DESTINATION
POINT FOR ANY PART OF HIS LEAVE BUT, IN LIEU THEREOF, REQUESTED TRAVEL
AUTHORITY TO GO ON LEAVE EASTWARD ONLY AS FAR AS CHICAGO. THE SITUATION
HERE IS SOMEWHAT SIMILAR TO THOSE CONSIDERED IN OUR DECISIONS AT 37
COMP. GEN. 119; 39 ID. 337 AND 41 ID. 553.
UNDER THE STATUTORY REGULATIONS AN EMPLOYEE MAY ELECT A LESS DISTANT
LOCATION FOR LEAVE PURPOSES. SEE SECTION 4.2, BUREAU OF THE BUDGET
CIRCULAR NO. A-56. HOWEVER, NEITHER THE STATUTE NOR THE REGULATIONS
CONTEMPLATE TRAVEL TO AN ALTERNATE LEAVE POINT AND THENCE TO VARIOUS
OTHER POINTS AT GOVERNMENT EXPENSE AS SUGGESTED BY MR. MALONEY.
IN THE CASE PRESENTED THE COST OF DIRECT JET COACH ROUND-TRIP
TRANSPORTATION BETWEEN JUNEAU AND CHICAGO, VIA SEATTLE, IS $330.90 PLUS
PER DIEM OF $40 (1 1/4 DAYS EACH WAY AT $16 PER DAY), AND TAXICAB COSTS
OF $4.50 INCURRED AT SEATTLE. THE TOTAL CONSTRUCTIVE DIRECT ROUND-TRIP
COST, THEREFORE, WAS $375.40. FOR TRAVEL AS PERFORMED TRANSPORTATION
COSTS OF $262.40 WERE INCURRED ON GOVERNMENT TRANSPORTATION REQUESTS.
THUS, THERE IS FOR ALLOWANCE ONLY OTHERWISE PROPER COSTS WHICH DO NOT
EXCEED $113 ($375.40 MINUS $262.40). PER DIEM OF $40 IS ALLOWABLE, PLUS
$60 CASH TRANSPORTATION FROM JUNEAU TO SEATTLE, TAXICAB FARES OF $4.50
AT SEATTLE, AND TAXICAB FARES OF $2.50 AT SPOKANE, OR A TOTAL OF $107.
SINCE THAT SUM IS LESS THAN THE CONSTRUCTIVE COST CEILING OF $113,
PAYMENT IN THE AMOUNT OF $107 IS PROPER. NO ALLOWANCE MAY BE MADE FOR
THE COST OF TAXICAB FARES INCURRED AT WATERTOWN SINCE THE COST OF THE
SIDE TRIP BETWEEN MINNEAPOLIS AND WATERTOWN IS NOT AN ALLOWABLE ITEM.
THEREFORE, IF OTHERWISE PROPER, THE VOUCHER MAY BE CERTIFIED FOR
PAYMENT IN THE AMOUNT OF $107.
B-158860, JUN. 13, 1966
TO MRS. ANN L. BARAY:
WE HAVE RECEIVED A LETTER DATED FEBRUARY 15, 1966, FROM MR. CURTIS E.
RISTESUND WHO WE UNDERSTAND IS REPRESENTING YOU IN CONNECTION WITH YOUR
CLAIM FOR REIMBURSEMENT OF MILEAGE FOR THE PERIOD JULY 1962 THROUGH
SEPTEMBER 1, 1964, INVOLVING THE USE OF YOUR PRIVATELY OWNED AUTOMOBILE
FOR OFFICIAL BUSINESS AT YOUR PERMANENT DUTY STATION.
YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION UNDER DATE OF
SEPTEMBER 15, 1965, FOR THE REASONS THAT YOUR TRAVEL WAS PERFORMED
WITHOUT THE PRIOR APPROVAL OF THE BASE MOTOR POOL, AS REQUIRED, AND
WITHOUT A SHOWING THAT GOVERNMENT TRANSPORTATION FOR THE PERFORMANCE OF
YOUR DUTIES WAS NOT AVAILABLE. THE REQUEST IS NOW MADE THAT WE
RECONSIDER THE MATTER.
OUR RULING IN 26 COMP. GEN. 463 (B-62220, JANUARY 8, 1947) HAS BEEN
CITED TO THE EFFECT THAT AN ADMINISTRATIVE DETERMINATION OF ADVANTAGE TO
THE GOVERNMENT WITH RESPECT TO TRAVEL BY PRIVATELY OWNED AUTOMOBILE ON A
MILEAGE BASIS AUTHORIZED OR APPROVED PURSUANT TO THE STANDARDIZED
GOVERNMENT TRAVEL REGULATIONS, NEED NOT BE SUPPORTED BY A SHOWING THAT
SUCH MODE OF TRAVEL WAS MORE ECONOMICAL TO THE UNITED STATES. FURTHER
IT IS POINTED OUT THAT REIMBURSEMENT IS BELIEVED TO BE DUE YOU BECAUSE
MR. FRANCIS G. LEAP, THE COMMISSARY OFFICER FOR WHOM YOU WORKED
AUTHORIZED AND APPROVED THE TRAVEL VOUCHERS UPON WHICH YOU CLAIMED
MILEAGE FOR THE PERIOD JULY 1962 THROUGH SEPTEMBER 1, 1964, IN THE
AMOUNT OF $327.
THERE IS NO QUESTION BUT THAT AT THE TIME YOU PERFORMED THE TRAVEL
FOR WHICH YOU MAKE CLAIM THAT REIMBURSEMENT ON A MILEAGE BASIS FOR THE
USE OF PRIVATELY OWNED AUTOMOBILES WAS PERMITTED UNDER CERTAIN
CIRCUMSTANCES AND WHEN PROPERLY AUTHORIZED OR APPROVED IN ACCORDANCE
WITH THE ESTABLISHED POLICIES OF THE INSTALLATION INVOLVED. AIR FORCE
MANUAL 40-10J, CHAPTER 2, DATED SEPTEMBER 14, 1960, PARAGRAPH 3B,
PROVIDED THAT NO TRAVEL ORDERS WOULD BE ISSUED FOR LOCAL TRAVEL WITHIN
OR IN THE IMMEDIATE VICINITY OF AN EMPLOYEE'S OFFICIAL DUTY STATION.
THIS IS IN ACCORD WITH OUR DECISION IN 24 COMP. GEN. 858. THE CURRENT
JOINT TRAVEL REGULATIONS ISSUED BY THE DEPARTMENT OF DEFENSE FOR
CIVILIAN PERSONNEL, EFFECTIVE JULY 1, 1965, CHAPTER 2, PART B, PARAGRAPH
C 2050, SUBPARAGRAPH 3, ARE TO THE SAME EFFECT.
THE ADMINISTRATIVE REPORT FURNISHED IN YOUR CASE SHOWS THAT THE
REGULATIONS APPLICABLE TO THE TYPE OF TRAVEL INVOLVED IN YOUR CLAIM
PROVIDED THAT THE REQUIREMENTS FOR GOVERNMENT TRANSPORTATION WITHIN AND
AROUND HAMILTON AIR FORCE BASE WAS TO BE MADE KNOWN TO THE BASE MOTOR
POOL DISPATCHER; THAT THE OPERATING OFFICIAL, APPARENTLY THIS WAS MR.
LEAP, WAS TO PREPARE THE LOCAL TRAVEL AUTHORIZATION AND FORWARD SAME TO
THE BASE TRANSPORTATION OFFICER WHO WAS REQUIRED TO MAKE DETERMINATIONS
AS TO THE AVAILABILITY OR NONAVAILABILITY OF GOVERNMENT TRANSPORTATION.
IN ADDITION, IT WAS REQUIRED BY THOSE REGULATIONS THAT CLAIMS FOR
REIMBURSEMENT SHOULD BE SUBMITTED FOR PAYMENT WITHIN ONE MONTH AFTER THE
TRAVEL WAS PERFORMED.
WE NOTE THAT MR. LEAP EXECUTED THREE LOCAL TRAVEL AUTHORIZATIONS
SHOWING THE DATES OF JUNE 30, 1963, JUNE 30, 1964, AND OCTOBER 21, 1964.
NONE OF THESE AUTHORIZATIONS WAS SUPPORTED BY A DETERMINATION OF
NONAVAILABILITY OF TRANSPORTATION BY THE MOTOR POOL OFFICER AS REQUIRED
BY THE REGULATIONS REFERRED TO ABOVE. WE FIND NO OFFICIAL RECORD IN THE
PAPERS FURNISHED US TO SUPPORT YOUR ALLEGATION THAT GOVERNMENT
TRANSPORTATION WAS NOT AVAILABLE FOR THE PERFORMANCE OF THE TRAVEL
INVOLVED. FURTHER, WE NOTE FROM THE ADMINISTRATIVE REPORT FURNISHED
THAT MR. LEAP ADVISED THAT YOUR USE OF YOUR PRIVATELY OWNED AUTOMOBILE
WAS VOLUNTARY ON YOUR PART; THAT YOU WERE ADVISED TO USE BASE TAXI
SERVICE IN THE PERFORMANCE OF SUCH TRAVEL BUT INDICATED THAT YOU WOULD
RATHER USE YOUR OWN CAR AS IT WAS MORE CONVENIENT. WE ALSO NOTE FROM
THE ADMINISTRATIVE REPORT THAT OTHER ADMINISTRATIVE OFFICIALS CONCLUDED
FROM THE INFORMATION OF RECORD THAT YOUR USE OF YOUR OWN CAR FOR THE
TRAVEL CLAIMED WAS VOLUNTARY. THE ADMINISTRATIVE REPORT ALSO POINTS OUT
THAT IT WAS NOT UNTIL YOU WERE ASSIGNED TO THE TRAVEL SECTION OF THE
BASE ACCOUNTING AND FINANCE OFFICE ON SEPTEMBER 6, 1964, THAT YOU WERE
AWARE OF THE FACT THAT REIMBURSEMENT COULD HAVE BEEN AUTHORIZED FOR SUCH
TRAVEL PROVIDED THE REQUIREMENTS OF THE APPLICABLE LOCAL REGULATIONS
WERE MET. YOUR CLAIM WAS NOT MADE UNTIL OCTOBER 26, 1964.
SINCE IT IS APPARENT FROM THE ADMINISTRATIVE REPORT RECEIVED
CONCERNING THIS MATTER THAT YOU DID NOT MEET THE REQUIREMENTS OF THE
APPLICABLE LOCAL REGULATIONS PLUS THE FACT THAT THERE ARE SIGNIFICANT
DIFFERENCES BETWEEN YOUR CONTENTIONS AND THE STATEMENTS MADE BY THE
RESPONSIBLE OFFICIALS, WE HAVE NO BASIS, UPON THE PRESENT RECORD, FOR
THE ALLOWANCE OF YOUR CLAIM. IT IS THE ESTABLISHED RULE OF GOVERNMENT
ACCOUNTING OFFICERS TO REJECT OR TO DISALLOW CLAIMS CONCERNING WHICH
THERE IS REASONABLE DOUBT.
B-158889, JUN. 13, 1966
TO DIRECTOR, DEFENSE SUPPLY AGENCY:
ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO INSTRUMENT SYSTEMS
CORPORATION, DENYING ITS PROTEST AGAINST THE REJECTION OF ITS BID UNDER
INVITATION FOR BIDS (IFB) NO. DSA-9-66-1854, ISSUED JANUARY 24, 1966, BY
THE DEFENSE ELECTRONICS SUPPLY CENTER (DESC), DEFENSE SUPPLY AGENCY
(DSA), DAYTON, OHIO. THE MATTER WAS THE SUBJECT OF A REPORT DATED MAY
23, 1966, FROM YOUR ASSISTANT COUNSEL.
CONCERNING THE TWO AMENDMENTS TO THE IFB, NEITHER OF WHICH WAS TIMELY
ACKNOWLEDGED BY ASTROCOM ELECTRONICS, INC., THE SECOND LOW BIDDER WHO
RECEIVED THE AWARD, WE CONCUR WITH THE VIEW OF THE DESC THAT IN THE
CIRCUMSTANCES OF THIS CASE NEITHER AMENDMENT HAD ANY SUBSTANTIVE EFFECT
ON THE IFB TERMS. WITH RESPECT TO AMENDMENT NO. 2, HOWEVER, IT IS OUR
VIEW THAT, NORMALLY, A REDUCTION IN AN INITIAL DELIVERY REQUIREMENT FROM
2,500 TO 1,000 UNITS WOULD APPEAR TO BE A SUBSTANTIVE CHANGE IN DELIVERY
REQUIREMENTS, AND, THEREFORE, A BIDDER'S FAILURE TO TIMELY ACKNOWLEDGE
SUCH AN AMENDMENT WOULD RENDER HIS BID NONRESPONSIVE. IN THIS CASE,
HOWEVER, THERE IS NO SHOWING THAT THE
CHANGE IN THE QUANTITY OF THE INITIAL SHIPMENT COULD REASONABLY HAVE
BEEN EXPECTED TO RESULT IN AN UPWARD REVISION OF ASTROCOM'S BID.
B-144185, JANUARY 25, 1961. ACCORDINGLY, WE ARE UNABLE TO CONCLUDE THAT
OTHER BIDDERS HAVE BEEN PREJUDICED BY THE FAILURE OF ASTROCOM TO
ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 2 TO THE IFB. THEREFORE, WE FIND
NO LEGAL BASIS FOR OBJECTION TO THE AWARD MADE TO ASTROCOM ON THE BASIS
OF ITS BID OFFERING AN INITIAL DELIVERY OF 2,500 UNITS.
B-158889, JUN. 13, 1966
TO INSTRUMENT SYSTEMS CORPORATION:
REFERENCE IS MADE TO YOUR PROTEST BY TELEGRAM AND LETTER OF APRIL 5,
1966, AGAINST AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS (IFB)
NO. DSA-9-66-1854, ISSUED JANUARY 24, 1966, BY THE DEFENSE ELECTRONICS
SUPPLY AGENCY (DSA), DAYTON, OHIO.
THE IFB SOLICITED BIDS TO FURNISH 6,079 HEADSETS TO BE MANUFACTURED
IN ACCORDANCE WITH CERTAIN MILITARY SPECIFICATIONS AND DRAWINGS AND TO
BE DELIVERED TO THE DESC AT DAYTON. BIDS WERE PERMITTED ON EITHER OF
TWO BASES--- BID "A" FIRST ARTICLE APPROVAL REQUIRED OR BID "B" FIRST
ARTICLE APPROVAL NOT REQUIRED, AND PROVISION WAS MADE FOR AWARD OF A
LABOR SURPLUS AREA SET-ASIDE QUANTITY OF 6,080 UNITS.
ON PAGE 5 OF THE IFB, BIDDERS WERE CAUTIONED THAT ONLY THE CLAUSES
CHECKED IN THE BID SCHEDULE WERE APPLICABLE; THAT CLAUSES A, M AND P
MUST BE COMPLETED BY BIDDERS; AND THAT BIDS SUBMITTED OTHER THAN AS
SPECIFIED IN THE SCHEDULE WOULD BE REJECTED. YOUR PROTEST CONCERNS ONLY
CLAUSE A.
UNDER CLAUSE A, ENTITLED "F.O.B. POINT, INSPECTION AND ACCEPTANCE,"
WHICH INCLUDED INFORMATION BLANKS TO BE FILLED IN BY THE BIDDER AND
PROVISIONS RELATING TO BOTH F.O.B. ORIGIN AND F.O.B. DESTINATION
SHIPMENTS, SUBCLAUSE A (1) RELATING TO F.O.B. ORIGIN SHIPMENTS WAS LINED
OUT, BUT SUBCLAUSE A (2) GOVERNING F.O.B. DESTINATION SHIPMENTS WAS LEFT
INTACT AND CHECK MARKS INDICATED THAT THE CONTRACTOR WAS TO BEAR THE
EXPENSE OF SHIPMENT OF THE PROCUREMENT ITEMS TO DESTINATION; THAT
INSPECTION BY THE GOVERNMENT WAS TO BE AT THE CONTRACTOR'S PLANT, THE
LOCATION TO BE STATED BY THE CONTRACTOR; AND THAT ACCEPTANCE WAS TO BE
AT DESTINATION.
BIDS WERE OPENED ON FEBRUARY 18, AND YOUR BID, QUOTING A UNIT PRICE
OF $27.92 UNDER BID "A," WAS LOW. EXAMINATION OF YOUR BID REVEALED THAT
NONE OF THE REQUESTED INFORMATION RELATING TO F.O.B. DESTINATION
SHIPMENTS HAD BEEN FURNISHED UNDER CLAUSE A (2), BUT NEXT TO THE CLAUSE
A TITLE, I.E., "F.O.B. POINT, INSPECTION AND ACCEPTANCE," THERE HAD BEEN
INSERTED "HUNTINGTON, NEW YORK.' IN A LETTER DATED MARCH 2, TO DESC, YOU
MADE THE FOLLOWING STATEMENTS CONCERNING YOUR ID:
"ISC/TELEPHONICS HAS BECOME AWARE OF A MINOR INFORMALITY IN THE
EXECUTION OF OUR RESPONSE TO SUBJECT IFB. IN INSERTING OUR PLANT
ADDRESS AS THE PROPOSED POINT FOR INSPECTION AND ACCEPTANCE, IT WAS
LOCATED INADVERTENTLY IN THE SPACES PROVIDED UNDER F.O.B. ORIGIN
INSTEAD OF UNDER F.O.B. DESTINATION AS DICTATED BY THE FORMAT OF THE
IFB. IT WAS THIS CONTRACTOR'S INTENTION TO COMPLY WITH ALL THE TERMS
AND CONDITIONS OF THE IFB; INCLUDING SHIPMENT TO DESTINATIONS
PRESCRIBED, AT OUR COST. WE REQUEST THAT THE INFORMALITY BE OVERLOOKED
BY THE CONTRACTING OFFICER IN DETERMINING ELIGIBILITY FOR AWARD UNDER
SUBJECT IFB.
"THE CONTRACTING OFFICER'S ATTENTION IS ALSO DIRECTED TO THE FACT
THAT THE AVERAGE COST OF TRANSPORTATION FROM THE CONTRACTOR'S PLANT TO
DESTINATIONS OUTLINED IN THE IFB IS .088 PER UNIT. YOUR ATTENTION IS
ALSO DIRECTED TO THE FACT THAT THE LOWEST BID, OTHER THAN
ISC/TELEPHONICS WAS .18 PER UNIT ABOVE OUR BID. ADDING TRANSPORTATION
COST TO OUR BID WOULD RESULT IN A TOTAL UNIT PRICE LOWER THAN THAT OF
THE NEXT LOW BIDDER.'
ON THE BASIS THAT YOUR BID AS SUBMITTED DESIGNATED HUNTINGTON AS THE
F.O.B. POINT AND ALSO AS THE POINT FOR INSPECTION AND ACCEPTANCE,
CONTRARY TO THE IFB TERMS PROVIDING THAT THE DESTINATION (DAYTON) WAS
THE F.O.B. POINT AS WELL AS THE POINT AT WHICH ACCEPTANCE BY THE
GOVERNMENT WAS TO BE EFFECTED, THE DESC DETERMINED THAT YOUR BID WAS NOT
RESPONSIVE AND, THEREFORE, CORRECTION OF YOUR MISTAKE COULD NOT BE
PERMITTED UNDER THE MISTAKE IN BID PROCEDURES BY ACCEPTANCE OF YOUR
EXPLANATION AFTER BID OPENING. ACCORDINGLY, YOU WERE INFORMED BY LETTER
OF MARCH 31 THAT YOUR BID WAS REJECTED AS NONRESPONSIVE. SUBSEQUENTLY,
AWARD WAS MADE TO ASTROCOM ELECTRONICS, INC. (ASTROCOM), THE SECOND LOW
BIDDER, WHO QUOTED A UNIT PRICE OF $28.10 UNDER BID "B," AND IT IS OUR
UNDERSTANDING THAT SUCH ACTION HAD BEEN TAKEN PRIOR TO THE RECEIPT BY
THE DESC OF NOTICE OF THE PROTEST FILED BY YOU WITH OUR OFFICE.
YOU STATE THAT YOU FIRST LEARNED OF THE PROCUREMENT ON FEBRUARY 17,
AND THAT SINCE TIME DID NOT PERMIT MAILING OF A BID SET TO YOU AND ITS
RETURN TO THE DESC FOR THE BID OPENING ON THE NEXT DAY, YOUR DAYTON
REPRESENTATIVE EXECUTED YOUR BID. YOU ALLEGE THAT THE BID FORM SO
EXECUTED WAS NOT PROPERLY MARKED TO DELETE THE NONAPPLICABLE F.O.B.
PROVISIONS OR TO INDICATE THE INFORMATION TO BE FURNISHED UNDER CLAUSE A
(2) ON F.O.B. DESTINATION SHIPMENTS, AND, THEREFORE, YOUR REPRESENTATIVE
INSERTED YOUR ADDRESS IN THE F.O.B. ORIGIN AREA OF THE BID FORM. ON
SUCH BASIS, AND ON THE BASIS THAT EVEN WITH ADDITION OF TRANSPORTATION
COSTS FROM YOUR PLANT TO THE DESTINATION YOUR BID WOULD BE LOWER THAN
ASTROCOM'S BID, YOU REQUEST THAT AWARD BE MADE TO YOU.
THE RECORD SHOWS THAT YOU WERE NOT SOLICITED FOR THE PROCUREMENT IN
QUESTION FOR THE REASONS THAT YOU WERE NOT CITED AS A SOURCE ON THE
PURCHASE REQUEST AND YOUR NAME DOES NOT APPEAR ON THE DESC MECHANIZED
LIST FOR 5,965 ITEMS. THE RECORD FURTHER SHOWS THAT ON THE BID FORM
WHICH YOUR REPRESENTATIVE EXECUTED, NOT ONLY WERE THE PROVISIONS AND
INFORMATION BLANKS IN SUBCLAUSE A (1), RELATING TO F.O.B. ORIGIN
SHIPMENTS, LINED OUT, THUS INDICATING THAT THEY WERE NOT APPLICABLE, BUT
SUBCLAUSE A (2), RELATING TO F.O.B. DESTINATION SHIPMENTS, WAS MARKED AS
FOLLOWS:
TABLE
"/2) X ITEM/S) 1 . F.O.B. DESTINATION. SUPPLIES SHALL BE
--- ----- SHIPPED DIRECT BY THE CONTRACTOR TO THE SPECIFIED
COMMERCIAL BILL OF LADING OR THE EXPENSE OF THE CONTRACTOR.
(A) ITEM/S) . FINAL INSPECTION AND ACCEPTANCE
--- ----- SHALL BE AT DESTINATION.
X (B) (I) ITEM/S) 1 . INSPECTION AT CONTRACTOR'S
--- ----- PLANT LOCATED AT
-------------------------------------------------- ACCEPTANCE SHALL BE
AT DESTINATION.
(II) ITEM/S) 1 . INSPECTION AT CONTRACTOR'S
----- PLANT LOCATED AT
-------------------------------------------------- AND/OR
SUBCONTRACTOR'S PLANT LOCATED AT --------------------------- ACCEPTANCE
SHALL BE AT DESTINATION.
NOTE: IF (B) ABOVE IS CHECKED, BIDDER MUST COMPLETE (B) (I) OR (B)
(II).
F.O.B. DESTINATION (JULY 1962). SUPPLIES SHALL BE DELIVERED TO THE
CONSIGNEE INSTALLATION AT THE EXPENSE OF CONTRACTOR. THE GOVERNMENT
WILL NOT BE LIABLE FOR ANY TRANSPORTATION, DELIVERY, STORAGE, DEMURRAGE,
ACCESSORIAL, OR OTHER CHARGES INVOLVED PRIOR TO ACTUAL DELIVERY OF THE
SUPPLIES TO THE DESTINATION.'
UNDER THE APPLICABLE PROCUREMENT STATUTE, 10 U.S.C. 2305, AND ARMED
SERVICES PROCUREMENT REGULATION (ASPR) 2-404.2 (A), BIDS ARE REQUIRED TO
CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE ADVERTISED INVITATION.
PARAGRAPH 8 (A), BIDDING INSTRUCTIONS TERMS AND CONDITIONS (SUPPLY
CONTRACT), STANDARD FORM 33-A, INCORPORATED IN THE IFB, WHICH PROVIDES
THAT THE CONTRACT WILL BE AWARDED TO THE RESPONSIBLE BIDDER, WHOSE BID
CONFORMING TO THE INVITATION, WILL BE MUST ADVANTAGEOUS TO THE
GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED, IS CONSISTENT WITH THE
STATUTE AND THE REGULATION. FURTHER, WHILE ASPR 2-405 PERMITS WAIVER OF
MINOR INFORMALITIES OR IRREGULARITIES IN BID, SUCH DEVIATIONS ARE
LIMITED TO THOSE OF FORM OR SOME IMMATERIAL VARIATION FROM THE EXACT
REQUIREMENTS OF THE INVITATION, HAVING NO EFFECT ON QUALITY, QUANTITY OR
DELIVERY OF THE SUPPLIES OR PERFORMANCE OF THE SERVICES BEING PROCURED
AND THE CORRECTION OR WAIVER OF WHICH WOULD NOT AFFECT THE RELATIVE
STANDING OF, OR BE OTHERWISE PREJUDICIAL TO, BIDDERS. MOREOVER, THE
FACT THAT A DEVIATION IN A BID WAS OCCASIONED BY A MISTAKE ON THE PART
OF THE BIDDER DOES NOT AFFORD A BASIS TO PERMIT CORRECTION OF THE
MISTAKE AFTER BID OPENING, CORRECTION OF A MISTAKE UNDER THE RULES
RELATING TO MISTAKES IN BID BEING AUTHORIZED ONLY WHEN THE BID IS
RESPONSIVE IN THE FORM IN WHICH IT IS SUBMITTED. 38 COMP. GEN. 819; 40
ID. 132, 134.
WITH RESPECT TO THE FACT THAT THE GOVERNMENT, BY ACCEPTANCE OF A
NONRESPONSIVE BID IN A SPECIFIC CASE, COULD REALIZE A SUBSTANTIAL
SAVING, WE HAVE HELD THAT IT IS INFINITELY MORE IN THE PUBLIC INTEREST
TO ABIDE BY THE RULES OF COMPETITIVE BIDDING THAN TO GAIN A PECUNIARY
ADVANTAGE BY VIOLATION THEREOF. 17 COMP. GEN. 554, 558.
THE IFB REQUIREMENT THAT THE CONTRACTOR BEAR THE COST OF
TRANSPORTATION OF THE PROCUREMENT ITEMS FROM HIS PLANT TO THE
DESTINATION DESIGNATED IN THE IFB AFFECTED THE BID PRICES; THEREFORE,
FAILURE OF A BID TO AGREE TO SUCH REQUIREMENT MUST BE REGARDED AS A
MAJOR DEVIATION. ACCORDINGLY, SINCE YOUR BID AS ORIGINALLY SUBMITTED
DID NOT OBLIGATE YOU TO PAY ANY TRANSPORTATION COSTS BEYOND YOUR PLANT
AT HUNTINGTON, NEW YORK, IT WAS NONRESPONSIVE ON ITS FACE. THEREFORE,
NOTWITHSTANDING THAT THE NONRESPONSIVENESS WAS DUE TO A MISTAKE ON YOUR
PART, OR THAT YOUR BID AS CORRECTED WOULD BE LOWER THAN ANY OTHER BID,
THE MISTAKE MAY NOT NOW BE CORRECTED TO RENDER YOUR BID RESPONSIVE SINCE
SUCH ACTION WOULD BE IN VIOLATION OF THE RULES OF COMPETITIVE BIDDING AS
WELL AS THE TERMS OF THE IFB, THE PROCUREMENT STATUTE AND THE
REGULATIONS. SEE B-146170, SEPTEMBER 15, 1961.
IN THE CIRCUMSTANCES, WE CONCUR WITH THE REJECTION OF YOUR BID BY THE
DESC. ACCORDINGLY, YOUR PROTEST IS DENIED.
B-159056, JUN. 13, 1966
TO BEKINS VAN AND STORAGE CO. :
REFERENCE IS MADE TO YOUR LETTERS OF APRIL 25, 1966, TO CONGRESSMAN
JOEL T. BROYHILL AND TO THE TRANSPORTATION AND COMMUNICATION SERVICE,
GENERAL SERVICES ADMINISTRATION (GSA), PROTESTING AGAINST REJECTION OF
YOUR BID UNDER INVITATION FOR BIDS (IFB) NO. 3TTM-317, ISSUED BY GSA.
THE SUBJECT INVITATION, ISSUED APRIL 18, 1966, CALLED FOR BIDS ON
FURNISHING TRANSPORTATION AND RELATED MOVING SERVICES FOR RELOCATION OF
THE FOREIGN SERVICE INSTITUTE, DEPARTMENT OF STATE, FROM ITS PRESENT
LOCATIONS TO A NEW BUILDING IN ARLINGTON, VIRGINIA. BIDS WERE SCHEDULED
FOR OPENING ON APRIL 22, 1966. THE INVITATION PROVIDED THAT THE MOVE
WOULD COMMENCE ON MAY 27, 1966 AND SHOULD BE COMPLETED ON MAY 30, 1966,
AND IN THE EVENT THE BUILDING WAS NOT READY FOR OCCUPANCY IN TIME FOR
THE SCHEDULED MOVE THE CONTRACTOR MUST PROCEED ON A REVISED SCHEDULE.
ON APRIL 20, DURING A TOUR OF INSPECTION OF THE PREMISES, IT IS REPORTED
THAT SEVERAL PROSPECTIVE BIDDERS ADVISED THE GSA REPRESENTATIVE THAT
THEIR UNION CONTRACTS EXPIRED ON MAY 31, 1966, AND THAT WHILE FIRM BIDS
COULD BE MADE TO THAT DATE ASSURANCES COULD NOT BE GIVEN THAT THE SAME
PRICES WOULD PREVAIL THEREAFTER. THEREUPON, THE GSA REPRESENTATIVE
ERRONEOUSLY ADVISED THE PROSPECTIVE BIDDERS THAT THEY COULD INCLUDE AN
ESCALATION PROVISION IN THEIR BIDS TO COVER THE CONTINGENCY. HOWEVER,
THE IFB DID NOT PROVIDE FOR ESCALATED BIDS, AND IT WAS NOT AMENDED TO SO
PROVIDE.
SEVEN BIDS WERE RECEIVED AND OPENED ON APRIL 22, AND YOUR BID WAS LOW
AT $19,495, WITH THE FOLLOWING QUALIFICATION:
"IF MOVE IS DELAYED BEYOND MAY 31, 1966 BID WILL BE INCREASED BY THE
SAME PERCENTAGE AS NEW UNION CONTRACT INCREASES OVER WAGE RATE IN EFFECT
MAY 31, 1966.' YOUR BID ALSO INCLUDED THE FIGURE "0" IN THE SPACE
PROVIDED FOR INDICATING THE NUMBER OF CALENDAR DAYS WITHIN WHICH YOUR
OFFER COULD BE ACCEPTED. THE THIRD LOW BIDDER ALSO INCLUDED AN
ESCALATION CLAUSE IN ITS BID. KANE TRANSFER COMPANY, THE SECOND LOW
BIDDER AT $21,649 (LESS A 1 PERCENT DISCOUNT FOR PAYMENT WITHIN 20
DAYS), DID NOT INCLUDE AN ESCALATION CLAUSE IN ITS BID. YOUR LETTER OF
APRIL 25, 1966, TO GSA WAS IN RESPONSE TO A TELEPHONE INQUIRY FROM GSA
CONCERNING BOTH THE "0" FIGURE AND ESCALATION PROVISION IN THE BID. IT
IS THEREIN EXPLAINED THAT THE "0" WAS INTENDED TO MEAN THAT YOUR OFFER
WAS OPEN FOR ACCEPTANCE FOR THE 60 DAY PERIOD STATED IN THE BID FORM
"UNLESS A DIFFERENT PERIOD IS INSERTED BY THE BIDDER.' WITH REGARD TO
THE ESCALATION CLAUSE, YOU ASKED THAT YOU BE PERMITTED TO DELETE IT FROM
THE BID AND HAVE THE $19,495 FIGURE CONSIDERED YOUR FIRM AND TOTAL
FIGURE.
THE REPORT FROM GSA INDICATES THAT WHILE THE "O" FIGURE WAS
CONSIDERED AS BEING SOMEWHAT AMBIGUOUS IN MEANING, NO DECISION WAS MADE
TO REJECT YOUR BID FOR THIS REASON. HOWEVER, IT WAS CONCLUDED THAT THE
ESCALATION PROVISION DID MAKE THE BID NONRESPONSIVE AND, THEREFORE, IT
MUST BE REJECTED AS REQUIRED BY FEDERAL PROCUREMENT REGULATIONS
1-2.407-4 (A), WHICH PROVIDES THAT WHERE THE IFB DOES NOT CONTAIN A
PRICE ESCALATION CLAUSE, BIDS WHICH CONTAIN ESCALATION WITH NO CEILING
SHALL BE REJECTED UNLESS A CLEAR BASIS FOR EVALUATION EXISTS.
WE MUST AGREE WITH THE ADMINISTRATIVE POSITION THAT INCLUSION OF THE
INDEFINITE ESCALATION CLAUSE IN YOUR BID RENDERED IT NONRESPONSIVE AND
PROPERLY FOR REJECTION UNDER THE CITED REGULATION. IN THE FORM
SUBMITTED, IT WOULD BE IMPOSSIBLE TO EVALUATE YOUR BID ON AN EQUAL BASIS
WITH OTHER BIDS, SINCE THE MAXIMUM AMOUNT, ABOVE WHICH THE BID PRICE
COULD NOT ESCALATE, WAS UNDETERMINABLE. 38 COMP. GEN. 253. MOREOVER,
THE REQUEST AND OFFER TO DELETE THIS PROVISION FROM THE BID COULD NOT
PROPERLY BE CONSIDERED OR PERMITTED SINCE TO DO SO WOULD BE PREJUDICIAL
TO THE OTHER BIDDERS. 38 ID. 612. ACCORDINGLY, YOUR PROTEST AGAINST
REJECTION OF YOUR BID MUST BE DENIED.
IT SHOULD BE NOTED HOWEVER, THAT IN ADDITION TO THE DECISION TO
REJECT YOUR BID FOR THE REASON HERETOFORE DISCUSSED, IT WAS ULTIMATELY
DECIDED TO REJECT ALL BIDS AND READVERTISE. THE BASIS FOR THIS DECISION
WAS TWOFOLD. FIRST, IT WAS FELT THAT THE UNAUTHORIZED STATEMENT OF THE
GSA REPRESENTATIVE CONCERNING THE ACCEPTABILITY OF ESCALATION CLAUSES IN
THE BIDS WAS MISLEADING AND PREJUDICIAL TO AT LEAST TWO OF THE BIDDERS.
SECOND, SINCE THE INCREASE IN UNION WAGES WAS AN IMMINENT POSSIBILITY IT
WAS BELIEVED THAT THE IFB SHOULD HAVE BEEN AMENDED TO ALLOW ESCALATION
ON A UNIFORM BASIS SO THAT ALL POTENTIAL BIDDERS WOULD HAVE BEEN ON AN
EQUAL BASIS IN THIS REGARD, AND THE GOVERNMENT WOULD HAVE GAINED THE
ADVANTAGE OF TRULY COMPETITIVE BIDDING, WITHOUT THE INCLUSION OF AMOUNTS
TO COVER CONTINGENCIES WHICH MAY NEVER MATERIALIZE. ALTHOUGH IT IS OUR
OPINION THAT BIDS SHOULD BE REJECTED AFTER THEY HAVE BEEN PUBLICLY
OPENED ONLY FOR THE MOST COGENT
REASONS, WE BELIEVE THE CIRCUMSTANCES IN THE INSTANT CASE PRESENT
SUCH REASONS, AND WE ARE THEREFORE ADVISING THE ADMINISTRATOR OF GENERAL
SERVICES ADMINISTRATION THAT WE SEE NO VALID BASIS FOR OBJECTION TO SUCH
ACTION UNDER IFB 3TTM-317.
B-159164, JUN. 13, 1966
TO AUTHORIZED CERTIFYING OFFICER, FEDERAL AVIATION AGENCY:
YOUR LETTER OF APRIL 21, 1966, REFERENCE AC-24, WITH ENCLOSURES,
REFERRED TO US BY THE FEDERAL AVIATION AGENCY ON MAY 10, 1966, REFERENCE
MS-430, ASKS WHETHER THE CLAIM OF MR. ALFRED B. BONE, 603 FOURTH AVENUE,
N.E., ARDMORE, OKLAHOMA, FOR OVERTIME SERVICES ALLEGED TO HAVE BEEN
PERFORMED BY HIM ON WEEKENDS AND HOLIDAYS IN 1952, 1953 AND 1954 FOR THE
FORMER CIVIL AERONAUTICS ADMINISTRATION MAY BE PAID.
THE PRESENTATION OF THE CLAIM TO US FOR THE FIRST TIME INVOKES THE
PROVISIONS OF 31 U.S.C. 237 WHICH READS, IN PERTINENT PART, AS FOLLOWS:
"/1) EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE,
TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED
STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND
236 OF THIS TITLE, SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING
THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR
ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER
THE DATE SUCH CLAIM FIRST ACCRUED: * * *
"/2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION
SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED
TO THE CLAIMANT, WITH A COPY OF THIS SECTION, AND SUCH ACTION SHALL BE A
COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.' IN VIEW THEREOF
PAYMENT OF THE CLAIM IS BARRED. THE FACT THAT A CLAIM WAS ORIGINALLY
SUBMITTED TO THE ADMINISTRATIVE OFFICE IN 1954 DOES NOT SATISFY THE
REQUIREMENT OF THE STATUTE THAT THE CLAIM BE RECEIVED IN OUR OFFICE
WITHIN THE TIME LIMIT SPECIFIED. MOREOVER, UNDER THAT STATUTE THERE
WOULD BE NO AUTHORITY IN YOUR AGENCY TO NOW MAKE PAYMENT OF THE CLAIM
EVEN IF OTHERWISE PROPER.
B-159299, JUN. 13, 1966
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO LETTER OF MAY 27, 1966, FROM THE UNDER SECRETARY
OF THE ARMY (PDTATAC CASE NO. 66-20) REQUESTING OUR VIEWS CONCERNING THE
VALIDITY OF CERTAIN TRAVEL RIGHTS WHICH IT IS PROPOSED TO ACCORD CERTAIN
EXPERIENCED AND SKILLED MILITARY PERSONNEL CURRENTLY STATIONED IN
EUROPE, BECAUSE THE SITUATION IN VIETNAM REQUIRES THEIR IMMEDIATE RETURN
BY THE ARMY TO THE UNITED STATES TO STAFF NEW UNITS FOR EARLY DEPLOYMENT
TO SOUTHEAST ASIA.
IT IS STATED THAT THE MOVEMENT OF THESE MEMBERS, OVER AND ABOVE THE
HEAVY SUMMER ROTATION FLOW FROM EUROPE, HAS SATURATED TRANSPORTATION
FACILITIES RESULTING, IN THE CASE OF OCEAN SHIPPING, IN THE EXISTENCE
CURRENTLY AT BREMERHAVEN, GERMANY, OF A BACKLOG OF MORE THAN 2,000
AUTOMOBILES, THE OWNERS OF WHICH, WITH THEIR FAMILIES, ARE ARRIVING IN
THE UNITED STATES BY AIR BETWEEN THE DATE OF THE UNDER SECRETARY'S
LETTER AND JUNE 5, 1966. THE UNDER SECRETARY SAYS THAT IN SOME CASES
DEPENDENTS OF THE SERVICEMEN ASSIGNED TO THE DEPLOYING UNITS WILL SETTLE
AT LOCATIONS IN THE UNITED STATES AT POINTS BEYOND OR IN OPPOSITE
DIRECTIONS FROM THE SPONSOR'S NEW DUTY STATION AND THAT, LACKING AN
AUTOMOBILE UPON ARRIVAL IN THE CONTINENTAL UNITED STATES BECAUSE OF THE
GOVERNMENT'S INABILITY, DUE TO THE UNUSUAL DEMANDS ON OCEAN SHIPPING
FACILITIES, TO SHIP SERVICEMEN'S CARS PROMPTLY, THE MEMBER HAS A CHOICE
OF (A) ACCOMPANYING DEPENDENTS TO SELECTED POINT OF RESIDENCE AT
PERSONAL EXPENSE; OR (B) LACKING FUNDS, ALLOWING DEPENDENTS TO PROCEED
AND ESTABLISH RESIDENCE WITHOUT HIS HELP; AND, WITH REFERENCE TO THE
AUTOMOBILE, RETURNING TO THE PORT FOR THE CAR LATER AT PERSONAL EXPENSE,
HAVING DEPENDENTS RETURN TO CLAIM THE CAR, OR ABANDONING IT.
THE UNDER SECRETARY SAYS THAT WHAT HE HAS IN MIND IN THE
CIRCUMSTANCES INDICATED IS DIRECTING THE MEMBERS INVOLVED TO TRAVEL ON
TEMPORARY DUTY TO THEIR CONTINENTAL UNITED STATES UNITS VIA THE LOCATION
WHERE THEIR DEPENDENTS WILL RESIDE WHILE THEY ARE ON DUTY IN VIETNAM,
WHERE THE MEMBERS WILL BE AUTHORIZED TO REMAIN FOR A SHORT PERIOD FOR
THE PURPOSE OF SETTLING THEIR DEPENDENTS AND AVAILING THEMSELVES OF
WHATEVER LEAVE THEY MAY BE PERMITTED TO TAKE PRIOR TO REPORTING TO THEIR
UNITS. SUBSEQUENTLY, HE SAYS, IF TIME PERMITS AND THEIR AUTOMOBILES
ARRIVE AT A CONTINENTAL UNITED STATES PORT, HE INTENDS ISSUING FURTHER
TEMPORARY DUTY ORDERS DIRECTING THE MEMBERS TO TRAVEL TO THE PORT, TAKE
POSSESSION OF THEIR VEHICLE, AND DRIVE IT TO THE DESIGNATED PLACE FOR
THE USE OF DEPENDENTS AND RETURN TO THEIR DUTY STATION OR, IF THEY SO
DESIRE, TO DRIVE THE VEHICLE FROM THE PORT TO THEIR CURRENT CONTINENTAL
UNITED STATES DUTY STATION.
THE UNDER SECRETARY RECOGNIZES THAT IN NORMAL CIRCUMSTANCES THE
TRAVEL AND TEMPORARY DUTY WHICH HE PROPOSES TO DIRECT, TO THE EXTENT
THAT IT EXCEEDS THAT NECESSARY TO ACCOMPLISH THE DUTY REQUIREMENTS OF
THE PROJECTED CHANGES OF STATION, WOULD BE CONSIDERED PERSONAL
CONVENIENCE TRAVEL, LACKING THE ELEMENTS OF GOVERNMENT INTEREST. HE
EXPRESSES THE BELIEF, HOWEVER, THAT THE UNUSUAL AND EMERGENCY SITUATION
WHICH REQUIRES THE RAPID REASSIGNMENT OF MEMBERS AND RELOCATION OF
DEPENDENTS INCIDENT TO MEETING OUR VIETNAM COMMITMENTS, AND THE
GOVERNMENT'S INABILITY TO PROVIDE FOR THE EXPEDITIOUS RETURN OF
AUTOMOBILES TO THE UNITED STATES, IMPOSE A HEAVY MORAL OBLIGATION ON THE
GOVERNMENT TO PROVIDE FOR THE RESULTING ADDITIONAL TRAVEL AND TEMPORARY
DUTY OUTLINED AT GOVERNMENT EXPENSE. IN SUCH CIRCUMSTANCES HE SUGGESTS
THE VIEW THAT A DIRECTION BY THE SECRETARY OF THE TRAVEL ENVISIONED AS
BEING NECESSARY IN THE MILITARY SERVICE SHOULD MEET THE REQUIREMENT
NORMALLY ASSOCIATED WITH THE EXISTENCE OF A "TRAVEL STATUS" FOR TRAVEL
ALLOWANCE PURPOSES WITHIN THE CONTEMPLATION OF THE PROVISIONS OF 37
U.S.C. 411 (C), WHICH VESTS IN THE SECRETARIES CONCERNED THE AUTHORITY
TO DETERMINE WHAT CONSTITUTES A TRAVEL STATUS UNDER THE PERTINENT
PROVISIONS OF 37 U.S.C. 404.
PUBLIC BUSINESS IS THE FOUNDATION UPON WHICH ENTITLEMENT TO BENEFITS
UNDER 37 U.S.C. 404, AS UNDER PRIOR STATUTORY AUTHORITY FOR TRAVEL AND
TRANSPORTATION OF MILITARY PERSONNEL, RESTS. 36 COMP. GEN. 257; 42
COMP. GEN. 27 AND COURT CASES CITED IN THESE DECISIONS. PARAGRAPH M3050
OF THE JOINT TRAVEL REGULATIONS CONTAINING THE DETERMINATION BY THE
SECRETARIES OF THE CONSTITUENTS OF A TRAVEL STATUS UNDER THE PROVISIONS
OF 37 U.S.C. 411 (C) CLEARLY RECOGNIZES THIS LEGAL REQUIREMENT. THE
PHRASE "PUBLIC BUSINESS," AS SO USED, RELATES TO THE ACTIVITIES OR
FUNCTIONS OF THE SERVICE TO WHICH THE TRAVELER IS ATTACHED, AND IT HAS
BEEN HELD THAT THE TRAVEL CONTEMPLATED IS THAT WHICH REASONABLY MAY BE
CONSIDERED AS HAVING BEEN PERFORMED IN THE ACCOMPLISHMENT OF THE PURPOSE
AND REQUIREMENTS OF SUCH ACTIVITIES AND FUNCTIONS. 38 COMP. GEN. 873.
IN THE EVENT OF A DIRECTED CHANGE OF STATION, THE ELEMENT OF PUBLIC
BUSINESS WITH RESPECT TO THE AUTHORIZED TRAVEL INCLUDES ONLY THAT TRAVEL
NECESSARY TO CARRY OUT THE REQUIREMENTS OF THE STATION CHANGE. WE ARE
NOT AWARE OF ANY AUTHORITY THAT REASONABLY COULD BE CONSIDERED TO
SUPPORT A CONCLUSION THAT TRAVEL ALLOWANCES COULD ACCRUE INCIDENT TO ANY
TRAVEL EXCEEDING THAT REQUIRED TO ACCOMPLISH THE DIRECTED CHANGE OF
STATION.
WHILE STATUTORY AUTHORITY IS PROVIDED GENERALLY FOR THE MOVEMENT OF
DEPENDENTS AND HOUSEHOLD EFFECTS TO THE NEW DUTY STATION OR ELSEWHERE AT
GOVERNMENT EXPENSE IN CONNECTION WITH A DIRECTED PERMANENT CHANGE OF
STATION, THAT AUTHORITY DOES NOT RELATE TO THE MEMBER'S TRAVEL AND HAS
NOT BEEN RECOGNIZED AS PROVIDING ANY BASIS FOR THE VIEW THAT PUBLIC
BUSINESS IS INVOLVED IN A MEMBER'S TRAVEL EXCEEDING THAT REQUIRED TO
ACCOMPLISH THE REQUIREMENTS OF HIS TRAVEL ORDERS, PERFORMED TO
FACILITATE THE MOVEMENT OF THE DEPENDENTS AND HOUSEHOLD EFFECTS. SUCH
ADDITIONAL TRAVEL UNIFORMLY HAS BEEN CONSIDERED AS TRAVEL FOR PERSONAL
REASONS NOT INVOLVING PUBLIC BUSINESS EVEN THOUGH DIRECTLY CONCERNED
WITH MOVEMENT OF THE DEPENDENTS AND HOUSEHOLD GOODS AT GOVERNMENT
EXPENSE AS AN INCIDENT TO THE MEMBER'S CHANGE OF STATION. B-156275,
APRIL 28, 1965; B-130254, MARCH 4, 1957. COMPARE 39 COMP. GEN. 495.
SECTION 209 OF THE ACT OF JUNE 30, 1932, 47 STAT. 405, AS AMENDED, 5
U.S.C. 73C, PROVIDES THAT NO LAW OR REGULATION AUTHORIZING OR PERMITTING
THE TRANSPORTATION AT GOVERNMENT EXPENSE OF THE EFFECTS OF OFFICERS,
EMPLOYEES, OR OTHER PERSONS, SHALL BE CONSTRUED OR APPLIED AS INCLUDING
OR AUTHORIZING THE TRANSPORTATION OF AN AUTOMOBILE, EXCEPT THAT IN ANY
FISCAL YEAR NOT MORE THAN $5,000 MAY BE EXPENDED FOR SUCH PURPOSE BY THE
DEPARTMENT OF THE ARMY AND A LIKE AMOUNT BY THE NAVY DEPARTMENT. THAT
LIMITATION HAS BEEN MODIFIED (10 U.S.C. 2634) TO AUTHORIZE SHIPMENT OF
AUTOMOBILES ON PERMANENT CHANGE OF STATION BUT, WITH EXCEPTIONS NOT HERE
MATERIAL, SUCH AUTHORITY IS LIMITED TO MOVEMENT BY WATER TRANSPORTATION
ONLY. ALSO, WHEN THE MOVEMENT OF A MEMBER'S DEPENDENTS, HOUSEHOLD
EFFECTS AND A MOTOR VEHICLE IS AUTHORIZED UNDER 37 U.S.C. 406 (H) FROM
AN OVERSEAS LOCATION TO AN APPROPRIATE LOCATION IN THE UNITED STATES,
WITHOUT CHANGE OF STATION FOR THE MEMBER, TRANSPORTATION OF THE MOTOR
VEHICLE IS LIMITED TO THAT AFFORDED UNDER 10 U.S.C. 2634.
CONSEQUENTLY, IN VIEW OF SUCH STATUTORY DENIAL OF AUTHORITY FOR THE
TRANSPORTATION AT GOVERNMENT EXPENSE OF MEMBERS' AUTOMOBILES BEYOND
POINT OF DEBARKATION UPON ENTRY INTO THE UNITED STATES ON PERMANENT
CHANGE OF STATION, IT IS APPARENT FOR REASONS MORE COMPELLING THAN IN
THE CASES OF ADDITIONAL TRAVEL PERFORMED IN CONNECTION WITH THE
FACILITATION OF MOVEMENT OF HOUSEHOLD GOODS AND DEPENDENTS BEING MOVED
AT GOVERNMENT EXPENSE INCIDENT TO THE MEMBER'S PERMANENT CHANGE OF
STATION, THAT THE ELEMENT OF PUBLIC BUSINESS IS LACKING IN THE MOVEMENT
OF THE MEMBER'S AUTOMOBILE IN THE UNITED STATES. THEREFORE,
REIMBURSEMENT FOR TRAVEL HAS BEEN DENIED ON THAT BASIS FOR TRAVEL
PERFORMED PRIMARILY FOR THE PURPOSE OF ACCOMPLISHING THE MOVEMENT OF AN
AUTOMOBILE WITHIN THE UNITED STATES BY DIRECTION OF COMPETENT ORDERS.
SEE DECISION OF SEPTEMBER 6, 1960, 40 COMP. GEN. 156. WE ARE OF THE
VIEW THAT FOR THE REASONS SET FORTH IN THAT DECISION TRAVEL DIRECTED FOR
THE PURPOSES STATED BY THE UNDER SECRETARY IN HIS LETTER OF MAY 27,
1966, COULD NOT BE CONSIDERED, EVEN UNDER THE UNUSUAL AND EMERGENCY
CONDITIONS OUTLINED, TO INVOLVE PUBLIC BUSINESS SO AS TO AUTHORIZE ITS
PERFORMANCE AT PUBLIC EXPENSE.
B-159304, JUN. 13, 1966
TO CALIFORNIA PUMP AND WELLS:
REFERENCE IS MADE TO YOUR LETTER OF MAY 12, 1966, IN WHICH YOU
REQUEST THAT WE CONSIDER YOUR CLAIM FOR MONIES ALLEGEDLY OWED YOU BY THE
HARTFORD INSURANCE GROUP, SAN FRANCISCO, CALIFORNIA, ACTING AS SURETY ON
PAYMENT BOND N-3240884, OBTAINED BY PRECISION DRILLING COMPANY, SANTA
ROSA, CALIFORNIA, UNDER CONTRACT NO. DA 04-036-AMC-28 (M).
YOU STATE THAT YOU WERE A SUBCONTRACTOR FOR PRECISION DRILLING
COMPANY UNDER CONTRACT WITH THE DEPARTMENT OF THE ARMY TO DRILL A DEEP
WATER WELL AT SIERRA ARMY DEPOT, HERLONG, CALIFORNIA. CONSTRUCTION OF
THE WELL, PUMP HOUSE AND OTHER RELATED SERVICES WAS COMPLETED AND
ACCEPTED BY THE GOVERNMENT ON SEPTEMBER 18, 1964. AT THAT TIME THE
PRIME CONTRACTOR, PRECISION DRILLING COMPANY, SUBMITTED A CLAIM OF
$1,080.21 BEFORE THE ARMED SERVICES BOARD OF CONTRACT APPEALS FOR EXTRA
MATERIALS AND SERVICES PERFORMED BY YOU UNDER THREE SEPARATELY PRICED
ITEMS OF THE CONSTRUCTION PROJECT. IN DECISION ASBCA NO. 10574,
SEPTEMBER 23, 1965, A TOTAL AMOUNT OF $837.64 WAS AWARDED TO PRECISION.
APPARENTLY ALL OR PART OF THIS SUM HAS NOT BEEN PAID YOU AND YOU REQUEST
THAT WE ORDER THE SURETY TO MAKE THE PAYMENT.
IT IS AN ESTABLISHED RULE OF LAW THAT CONTRACTS OR AGREEMENTS TO
PERFORM WORK FOR OR TO FURNISH SUPPLIES TO PRIME CONTRACTORS ENGAGED IN
THE PERFORMANCE OF CONTRACTS WITH THE GOVERNMENT DO NOT CREATE PRIVITY
OF CONTRACT BETWEEN THE SUBCONTRACTOR AND THE UNITED STATES. SEE UNITED
STATES V. DRISCOLL, 96 U.S. 421 (1877); MERRITT V. UNITED STATES, 267
U.S. 338 (1925); ARMSTRONG V. UNITED STATES, 169 F.SUPP. 259 (1959).
SINCE YOU ARE NOT A PARTY TO THE PRIME CONTRACT, YOU HAVE NO BASIS
FOR SUBMITTING A CLAIM AGAINST THE GOVERNMENT IN THIS MATTER. THE
GOVERNMENT'S ONLY OBLIGATION HERE IS TO PAY THE PRIME CONTRACTOR THE
AMOUNT SPECIFIED IN HIS CONTRACT WITH THE GOVERNMENT, AND THE AMOUNT
AWARDED BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS WHICH APPARENTLY
HAS BEEN DONE. IN VIEW OF THE FACT THAT YOUR CONTRACT IS WITH PRECISION
DRILLING COMPANY, YOUR REQUEST FOR PAYMENT MUST BE SETTLED WITH THAT
COMPANY.
THE ONLY PROTECTION WHICH THE GOVERNMENT PROVIDES FOR SUBCONTRACTORS
IS CONTAINED IN THE MILLER ACT, 40 U.S.C. 270A. THIS LAW REQUIRES
CERTAIN GOVERNMENT CONTRACTORS TO FURNISH PAYMENT BONDS WHICH ARE IN THE
NATURE OF A SUBSTITUTE FOR MECHANICS' LIENS NOT RECOGNIZABLE BY THE
GOVERNMENT. IN THE EVENT A SUBCONTRACTOR IS UNABLE TO WORK OUT AN
ADJUSTMENT OF ITS UNPAID ACCOUNT WITH THE GOVERNMENT CONTRACTOR OR ITS
SURETY, IT IS GIVEN THE RIGHT UNDER SECTION 2 OF THE MILLER ACT, 40
U.S.C. 270B, TO ENFORCE COLLECTION THROUGH SUIT UNDER THE PAYMENT BOND.
HOWEVER, A SUBCONTRACTOR'S RIGHT TO SUE ON A PAYMENT BOND EXPIRES ONE
YEAR AFTER THE DAY ON WHICH THE LAST OF THE LABOR WAS PERFORMED OR
MATERIAL WAS SUPPLIED, 40 U.S.C. 270B (B).
B-159139, JUN. 10, 1966
TO ADMINISTRATOR, VETERANS ADMINISTRATION:
REFERENCE IS MADE TO A LETTER DATED MAY 9, 1966, WITH ENCLOSURES,
FROM THE DIRECTOR, SUPPLY MANAGEMENT SERVICE, SUBMITTING FOR OUR
DECISION A REQUEST BY M AND M REMODELING CONTRACTORS FOR RELIEF UNDER
CONTRACT NO. V5238C-348 AWARDED BY THE VETERANS ADMINISTRATION WEST SIDE
HOSPITAL, CHICAGO, ILLINOIS.
THE VETERANS ADMINISTRATION WEST SIDE HOSPITAL REQUESTED BIDS--- TO
BE OPENED FEBRUARY 15, 1966--- FOR FURNISHING MATERIALS AND LABOR AND
FOR PERFORMING ALL WORK NECESSARY FOR THE REMODELING OF NINTH FLOOR "A"
SECTION OF BUILDING NO. 1, FOR 40-BED NURSING HOME CARE UNIT, PROJECT
NO. 12-5414. THE INVITATION CALLED FOR THE SUBMISSION OF A BASE BID
PRICE AND PRICES FOR ALTERNATES "A," "B" AND "C.' IN RESPONSE M AND M
REMODELING CONTRACTORS SUBMITTED A BID DATED FEBRUARY 15, 1966, WHEREIN
IT QUOTED A BASE BID PRICE OF $44,585 AND A PRICE OF $4,400 FOR
ALTERNATE "C," MAKING AN AGGREGATE TOTAL PRICE OF $48,985 FOR BOTH
ITEMS. THE ABSTRACT OF BIDS SHOWS THAT FOR THE WORK COVERED BY THE BASE
BID PRICE AND ALTERNATE "C" THE THREE OTHER BIDDERS QUOTED AGGREGATE
TOTAL PRICES OF $62,350, $76,640 AND $84,936. THE RECORD INDICATES THAT
THE GOVERNMENT'S ESTIMATE FOR THE WORK COVERED BY THE BASE BID PRICE AND
ALTERNATE "C" WAS $61,000.
IT IS REPORTED THAT MR. EARL V. MAROVITZ OF M AND M REMODELING
CONTRACTORS WAS PRESENT AT THE BID OPENING TOGETHER WITH REPRESENTATIVES
OF VEE SEE CONSTRUCTION COMPANY AND THE J. S. DREW CONSTRUCTION COMPANY
AND THAT SINCE THERE WAS A SIGNIFICANT DIFFERENCE BETWEEN THE PRICE
QUOTED BY M AND M REMODELING CONTRACTORS AND THE PRICES QUOTED BY OTHER
BIDDERS, THE CONTRACTING OFFICER'S DESIGNEE ASKED MR. MAROVITZ TO
CONFIRM HIS COMPANY'S BID PRICE. ALTHOUGH AT THAT TIME MR. MAROVITZ HAD
IN HIS POSSESSION THE COMPANY'S ESTIMATE SHEET HE DID NOT CONSULT SUCH
SHEET BEFORE CONFIRMING HIS COMPANY'S BID PRICE. IN A LETTER DATED
MARCH 2, 1966, THE CONTRACTING OFFICER ADVISED M AND M REMODELING
CONTRACTORS THAT A CONTRACT FOR THE WORK COVERED BY THE BASE BID PRICE
AND ALTERNATE "C" HAD BEEN AWARDED TO THE COMPANY.
BY LETTER DATED MARCH 11, 1966, THE COMPANY ADVISED THE CONTRACTING
OFFICER THAT AN ERROR IN ADDITION IN THE AMOUNT OF $13,000 HAD BEEN MADE
IN ITS BID AND THAT THE PRICE FOR THE WORK COVERED BY THE BASE BID PRICE
AND ALTERNATE "C" SHOULD HAVE READ $61,985. THE COMPANY STATED THAT THE
ESTIMATE SHEET WHICH IT HAD SUBMITTED AT THE TIME OF THE BID OPENING
WOULD SUBSTANTIATE THAT AN ERROR WAS MADE BY IT, AS ALLEGED. THE
COMPANY'S ESTIMATE SHEET SHOWS VARIOUS ITEMS OF COST, AMONG
WHICH IS ONE FOR "GEN. WORK" IN THE AMOUNT OF $13,970. THE TOTAL OF
THESE ITEMS IS SHOWN ON THE ESTIMATE SHEET AS BEING $31,640; HOWEVER,
THE CORRECT TOTAL FOR THESE ITEMS IS $44,640--- A DIFFERENCE OF $13,000.
IN A LETTER DATED MARCH 21, 1966, THE COMPANY REQUESTED THAT THE
CONTRACT PRICE FOR THE WORK BE INCREASED BY $13,000.
IN HIS LETTER OF MAY 9, 1966, IN WHICH HE RECOMMENDED THAT THE
CONTRACT PRICE OF THE PROJECT BE INCREASED BY $13,000, THE DIRECTOR,
SUPPLY MANAGEMENT SERVICE, POINTS OUT THAT WHEN THE CONTRACTOR WAS
REQUESTED TO VERIFY ITS BID PRICE IT WAS NOT SPECIFICALLY ADVISED THAT
ITS BID WAS SIGNIFICANTLY OUT OF LINE WITH THE NEXT LOW BID AND WITH THE
GOVERNMENT'S ESTIMATE.
GENERALLY, WHEN A BIDDER IS REQUESTED TO AND DOES VERIFY HIS BID, THE
SUBSEQUENT ACCEPTANCE OF THE BID CONSUMMATES A VALID AND BINDING
CONTRACT. SEE 18 COMP. GEN. 942, 947; AND 27 ID. 17. HOWEVER, IT IS
REPORTED THAT ONE OF THE OTHER BIDDERS PRESENT AT THE BID OPENING
REMARKED TO THE CONTRACTING OFFICER THAT HE COULD NOT CONCEIVE HOW M AND
M REMODELING CONTRACTORS COULD PERFORM THE PROJECT WORK AT ITS BID
PRICE. IN VIEW THEREOF, IT WOULD NOT APPEAR THAT THE VERIFICATION OF M
AND M REMODELING CONTRACTORS' BID--- CONDUCTED INFORMALLY AT THE BID
OPENING AND INVOLVING AN IMMEDIATE "ON THE SPOT" CONFIRMATION OF THE BID
WITHOUT APPARENT FURTHER CHECK--- WAS SUFFICIENTLY ADEQUATE TO DISPEL
THE ALREADY EXISTING DOUBT THAT THE GOVERNMENT CONTRACTING OFFICER HAD
AS TO THE CORRECTNESS OF THE BID AND, THEREFORE, IT WOULD APPEAR THAT
THERE STILL EXISTED, AFTER CONFIRMATION, AMPLE REASON FOR THE
CONTRACTING OFFICER TO HAVE REQUESTED A FURTHER CLARIFICATION OF THE
COMPANY'S BID PRIOR TO ITS ACCEPTANCE. IN THE CIRCUMSTANCES, AND SINCE
THE ERROR WAS ALLEGED AND ESTABLISHED PRIOR TO THE RECEIPT OF THE NOTICE
TO PROCEED, THE COMPANY SHOULD NOT BE REQUIRED TO PERFORM THE PROJECT
WORK AT THE PRICE QUOTED IN ITS BID.
IT IS REPORTED THAT AFTER THE COMPANY ALLEGED ERROR IN ITS BID IT WAS
INSTRUCTED TO CONTINUE THE WORK AT THE PRICE BID SUBJECT TO POSSIBLE
CORRECTION BY HIGHER AUTHORITY. ACCORDINGLY, CONTRACT NO. V5238C-348
MAY BE AMENDED TO INCREASE THE PRICE FOR THE PROJECT TO $61,985, AS
RECOMMENDED BY THE DIRECTOR, AND PAYMENT FOR THE WORK IS AUTHORIZED TO
BE MADE ON THAT BASIS. THE BID OF M AND M REMODELING CONTRACTORS, AS
CORRECTED, WILL STILL BE THE LOWEST BID RECEIVED ON THE PROJECT.
A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE AMENDMENT TO BE
ATTACHED TO THE CONTRACT.
B-159233, JUN. 10, 1966
TO COLUMBUS BLANK BOOK COMPANY:
YOUR LETTER OF MARCH 14, 1966, TO THE DIRECTOR OF PROCUREMENT,
DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO, PROTESTING AWARD OF
A CONTRACT TO ANY COMPANY OTHER THAN YOURS UNDER INVITATION FOR BIDS
DSA-700-66-3301, HAS BEEN FORWARDED TO THIS OFFICE FOR CONSIDERATION.
THE INVITATION WAS ISSUED ON FEBRUARY 4, 1966, FOR BIDS ON A CONTRACT
FOR PERFORMANCE OF PRINTING WORK TO BE REQUIRED BY THE GOVERNMENT DURING
THE PERIOD MARCH 1, 1966, THROUGH FEBRUARY 28, 1967. NINETEEN ITEMS,
EACH CONSISTING OF A TYPE OF PRINTING AND/OR PAPER BROKEN DOWN INTO
VARIOUS SUB-ITEMS BY QUANTITY, WITHIN THE GENERAL CLASSIFICATION, WERE
LISTED FOR BIDDING. THE SUB-ITEMS WERE FURTHER BROKEN DOWN BY PAPER
SIZE. THE INVITATION REQUIRED THAT BIDDERS BID ON ALL ITEMS OF WORK AND
STATED THAT FAILURE TO BID ON ALL ITEMS WOULD RENDER THE BID NOT
RESPONSIVE, AND THAT THE AWARD WAS TO BE MADE ON AN ALL OR NONE BASIS TO
THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER. THE BID PRICE, FOR
EVALUATION PURPOSES, WAS TO BE DETERMINED BY THE COST OF THE TOTAL
ESTIMATED WORK TO BE PERFORMED. THE INVITATION STATED THAT THIS COST
WAS TO BE ARRIVED AT BY MULTIPLYING THE UNIT PRICE OF THE BID BY THE
ESTIMATED QUANTITIES OF EACH ITEM OF WORK TO BE PERFORMED. THE AWARD
CLAUSE OF THE INVITATION CARRIED THE FURTHER ADVICE TO "SEE ARTICLE 12
OF SPECIAL PROVISIONS HEREOF FOR THE ESTIMATED QUANTITIES.' FURTHER,
PARAGRAPH 1C OF THE SPECIAL PROVISIONS PROVIDED AS FOLLOWS:
"C. PRICES SHALL BE ENTERED FOR EACH PRICING ELEMENT SHOWN FOR EACH
ITEM. FOR EXAMPLE, UNDER ITEM NO. 1, SUB-ITEM NO. G, EIGHT PRICES ARE
TO BE ENTERED. THUS, THERE WILL BE PRICES SHOWN FOR ITEMS NO/S. 1G1,
1G2, 1G3, ETC. THE TOTAL NUMBER OF PRICES REQUIRED UNDER ITEM NO. 1 IN
ITS ENTIRETY AMOUNTS TO 71 DIFFERENT PRICES.'
IN THE SPACE PROVIDED FOR INSERTION OF BID PRICES (PAGES 1 THROUGH 22
OF THE INVITATION), IN MOST OF THE INSTANCES WHERE THERE WERE NO
ESTIMATED QUANTITIES PROVIDED FOR A PARTICULAR SUB-ITEM SIZE, THE SPACE
FOR PRICES WAS "X-ED" OUT. THIS WAS NOT, HOWEVER, TRUE AS TO SOME 87
SUB-ITEMS OF THE INVITATION.
MCGREGOR AND WERNER, INC., BEAVER PRESS, AND YOUR COMPANY SUBMITTED
BIDS. IN ACCORDANCE WITH THE STATED METHOD OF EVALUATION OF BIDS,
MCGREGOR AND WERNER, INC., WAS FOUND TO BE LOW AND WAS AWARDED CONTRACT
NO. DSA-700-19494 ON FEBRUARY 24, 1966. YOUR PROTEST FOLLOWED, ALLEGING
THAT THE SUCCESSFUL BIDDER WAS NOT RESPONSIVE BECAUSE IT HAD FAILED TO
INCLUDE PRICES IN SEVERAL AREAS AND THAT YOUR COMPANY WAS THE ONLY
RESPONSIVE BIDDER. IT IS REPORTED THAT REPRESENTATIVES OF YOUR COMPANY
HAVE AGREED ORALLY THAT MCGREGOR AND WERNER, INC. OFFERED BIDS ON EACH
AND EVERY ITEM AND SUB-ITEM FOR WHICH AN ESTIMATED QUANTITY WAS LISTED
ON THE INVITATION. YOUR PROTEST, HOWEVER, IS BASED UPON THE VIEW THAT
YOUR BID WAS THE ONLY RESPONSIVE BID "BY VIRTUE OF OUR BIDDING ON ALL
ITEMS IN ANSWER TO YOUR "QUOTE ALL OR NOTHING REQUEST" AND THE
COMPETITIVE BIDDERS
FAILURE TO COMPLY TO YOUR "ALL OR NOTHING" SPECIFICATION BY VIRTUE OF
PRICE OMISSIONS.'
THE DEFENSE SUPPLY AGENCY REPORTS THAT, THROUGH INADVERTENCE, THE
SPACE FOR INSERTION OF PRICES FOR CERTAIN OF THE SUB-ITEMS FOR WHICH NO
ESTIMATED QUANTITIES WERE GIVEN, AND WHICH WERE NOT TO BE INCLUDED IN
BID EVALUATION, WERE NOT "X-ED" OUT, AND THAT IT DID NOT AND DOES NOT
INTEND TO ORDER THE SERVICES UNDER THESE SUB-ITEMS.
WHILE THE FIRST SENTENCE OF THE AWARD CLAUSE OF THE INVITATION STATED
THAT "AWARD WILL BE MADE ON THE "ALL OR NONE" BASIS TO THE LOWEST
RESPONSIVE RESPONSIBLE BIDDER," THE CLAUSE ALSO STATED, AS SET FORTH
ABOVE, THE BASIS UPON WHICH THE BID PRICE FOR EVALUATION PURPOSES WOULD
BE DETERMINED AND WHERE INFORMATION AS TO THE ESTIMATED QUANTITIES COULD
BE FOUND. "ALL OR NONE," GENERALLY, AND IN THE CONTEXT OF THE PRESENT
INVITATION, MUST BE CONSTRUED AS MEANING ALL THE GOVERNMENT'S
REQUIREMENTS AS SET FORTH IN THE INVITATION. WE HAVE HELD THAT EVEN
WHERE IT IS DETERMINED AFTER BID OPENING NOT TO PURCHASE CERTAIN ITEMS,
THE FAILURE TO BID ON THOSE ITEMS, EVEN THOUGH REQUIRED BY THE TERMS OF
THE INVITATION, DOES NOT RENDER THE BID NONRESPONSIVE WITH RESPECT TO
ITEMS ACTUALLY BID UPON. B-158962, MAY 11, 1966. AS ABOVE-INDICATED IT
WAS NEVER THE ADMINISTRATIVE INTENTION IN THIS CASE TO EVALUATE AND
AWARD THOSE ITEMS AS TO WHICH THE LOW BIDDER FAILED TO SUBMIT PRICES.
WE MUST THEREFORE CONCLUDE THAT THE LOW BIDDER'S FAILURE IN THAT REGARD
DID NOT RENDER ITS BID NONRESPONSIVE. AS WE STATED IN 39 COMP. GEN.
595, 597,"AN AUTOMATIC REJECTION OF A BID BECAUSE OF A FAILURE TO
CONFORM TO A PURELY TECHNICAL OR OVER-LITERAL READING OF THE STATED
REQUIREMENTS MAY BE AS ARBITRARY AS A WAIVER OF NONRESPONSIVENESS TO A
MATERIAL AND SUBSTANTIAL REQUIREMENT.'
SINCE CLEAR PROVISION FOR EVALUATION WAS STATED AND ESTIMATED
QUANTITIES OF REQUIRED SUB-ITEMS WERE FURNISHED WE BELIEVE THE AWARD TO
MCGREGOR AND WERNER, INC. WAS PROPER. YOUR PROTEST MUST, THEREFORE, BE
DENIED.
B-159349, JUN. 10, 1966
TO THE SECRETARY OF AGRICULTURE:
BY LETTER DATED JUNE 3, 1966, WITH ENCLOSURES, ASSISTANT SECRETARY
GEORGE L. MEHREN REQUESTED OUR DECISION WITH RESPECT TO A PROTEST MADE
BY AMERICAN INSTRUMENT CO., INC., AGAINST ANY AWARD UNDER INVITATION FOR
BIDS NO. 94-N-ARS-66, ISSUED ON APRIL 2, 1966, BY THE AGRICULTURAL
RESEARCH SERVICE, NORTHERN ADMINISTRATIVE DIVISION, MINNEAPOLIS,
MINNESOTA. THE COMPANY PROTESTS ON THE BASES THAT INSUFFICIENT TIME WAS
ALLOWED BY THE INVITATION TO SUBMIT A RESPONSIVE BID, AND THAT THE
INVITATION RESTRICTED BIDDING TO ONLY ONE SUPPLIER.
THE INVITATION REQUESTED BIDS--- FOR PUBLIC OPENING ON APRIL 19,
1966--- FOR FURNISHING AND CONNECTING TO EXISTING FACILITIES LABORATORY
ROCKER-SHAKER ASSEMBLIES IN ACCORDANCE WITH DETAILED SPECIFICATIONS.
THE INVITATION WAS FURNISHED TO 10 PROSPECTIVE BIDDERS AND, IN THE CASE
OF THE AMERICAN INSTRUMENT CO., IT WAS MAILED TO THE COMPANY'S MIDWEST
BRANCH OFFICE AT CHICAGO, ILLINOIS. CLARIFYING AMENDMENTS WERE ISSUED
ON APRIL 6 AND 8 AND APPARENTLY WERE FURNISHED TO THE
PROSPECTIVE BIDDERS.
ON APRIL 12, THE AMERICAN INSTRUMENT CO. AT SILVER SPRING, MARYLAND,
REQUESTED THAT A COPY OF THE INVITATION BE FURNISHED TO IT, AND ON APRIL
13 A COPY OF THE INVITATION AS AMENDED WAS FORWARDED TO THE COMPANY AT
ITS SILVER SPRING ADDRESS. IT IS REPORTED IN THIS CONNECTION THAT THE
COMPANY WAS ON THE ORIGINAL BIDDERS' LIST BUT LISTED AT ITS CHICAGO
OFFICE, AND THAT THE INVITATION WAS MAILED TO THAT OFFICE AT THE REQUEST
OF THE COMPANY'S REPRESENTATIVE WITH WHOM THE PROCUREMENT AGENCY HAS
BEEN DOING BUSINESS FOR SEVERAL YEARS. IT IS FURTHER REPORTED THAT
RESPONSES TO OTHER INVITATIONS HAVE BEEN SUBMITTED BY THE COMPANY'S
MIDWEST OFFICE. BY TELEGRAM DATED APRIL 15, THE COMPANY REQUESTED AN
EXTENSION OF THE BID OPENING TIME BUT THE CONTRACTING OFFICER DENIED THE
REQUEST ON THE BASIS THAT THERE WAS AMPLE TIME TO PREPARE AND SUBMIT A
BID ESPECIALLY SINCE THE COMPANY HAD IN ITS POSSESSION A COPY OF THE
INVITATION MAILED TO ITS CHICAGO OFFICE AND THE COPY FURNISHED TO ITS
SILVER SPRING OFFICE ON APRIL 13.
41 U.S.C. 253 (A) REQUIRES THAT ADVERTISEMENTS FOR BIDS SHALL BE MADE
A SUFFICIENT TIME PREVIOUS TO THE PURCHASE OR CONTRACT SO AS TO PERMIT
SUCH FULL AND FREE COMPETITION AS IS CONSISTENT WITH THE PARTICULAR
PROCUREMENT. SECTION 1-2.202-1 OF THE FEDERAL PROCUREMENT REGULATIONS
(FPR) IMPLEMENTS THIS REQUIREMENT AND PROVIDES THAT INVITATIONS SHALL
ALLOW SUFFICIENT TIME TO PERMIT PROSPECTIVE BIDDERS TO PREPARE AND
SUBMIT BIDS. AS A GENERAL RULE, BIDDING TIME SHOULD NOT BE LESS THAN 15
CALENDAR DAYS WHEN PROCURING STANDARD COMMERCIAL ARTICLES (FPR SEC.
1-2.202-1 (C) ). IT APPEARS FROM THE RECORD THAT THE BIDDING TIME
PROVIDED BY THE INVITATION MET THESE REQUIREMENTS AND THAT NO
SUBSTANTIAL BASIS EXISTED FOR GRANTING ADDITIONAL TIME TO THE COMPANY
FOR SUBMITTING A BID. THE FACT THAT THE INVITATION WAS RECEIVED AT THE
COMPANY'S MIDWEST OFFICE RATHER THAN AT ITS MARYLAND OFFICE IS NOT OF
MATERIAL SIGNIFICANCE SINCE THE GOVERNMENT DID, IN FACT, EXTEND
COMPETITIVE OPPORTUNITY TO THE COMPANY. IT WAS THE COMPANY'S
RESPONSIBILITY THEREAFTER TO SUBMIT A TIMELY BID IF IT DESIRED TO
COMPETE FOR THE PROCUREMENT. CONSIDERING ALSO THAT THE INVITATION WAS
SENT TO THE CHICAGO ADDRESS SHOWN ON THE BIDDERS' LIST, WE MUST CONCLUDE
THAT THE COMPANY WAS GIVEN SUFFICIENT TIME TO RESPOND TO THE INVITATION.
CF. 34 COMP. GEN. 684.
CONCERNING THE SECOND CONTENTION OF THE COMPANY THAT THE INVITATION
WAS RESTRICTIVE, WE NOTE THAT THE RECORD CONTAINS A MEMORANDUM DATED
APRIL 21, 1966, FROM AN OFFICIAL OF THE PROCUREMENT ACTIVITY WHEREIN IT
IS DEMONSTRATED THAT THE SPECIFICATIONS WERE IN FACT NOT RESTRICTIVE OF
COMPETITION BUT REPRESENTED A STATEMENT OF THE GOVERNMENT'S ESSENTIAL
MINIMUM NEEDS WHICH WERE REFLECTED IN SPECIFICATIONS THAT WERE NOT
DRAFTED AROUND THE EQUIPMENT OF ANY PARTICULAR MANUFACTURER. IN VIEW OF
THIS ADMINISTRATIVE STATEMENT OF THE COMPETITIVE CHARACTER OF THE
SPECIFICATIONS, WE FIND NO SUBSTANCE TO THE COMPANY'S CONTENTION.
ACCORDINGLY, ON THE RECORD BEFORE US, THE PROTESTS OF THE AMERICAN
INSTRUMENT CO. SHOULD BE DENIED.
B-157468, JUN. 9, 1966
TO BURNETT CONSTRUCTION COMPANY:
REFERENCE IS MADE TO YOUR ATTORNEY'S LETTER DATED JANUARY 21, 1965,
PRESENTING YOUR CLAIMS FOR THE RECOVERY OF $22,672.31 ALLEGEDLY
WRONGFULLY WITHHELD BY THE GENERAL SERVICES ADMINISTRATION (GSA) UNDER
CONTRACT NO. GS-07-B-4355, AND FOR $23,710 FOR DAMAGES ALLEGED TO HAVE
BEEN SUFFERED BY YOU AS THE RESULT OF DELAYS IN PERFORMANCE OF SAID
CONTRACT OCCASIONED BY ACTS OR DEFAULTS OF THE GOVERNMENT.
THE CLAIM FOR $22,672.31 COVERS MATTERS WHICH WERE THE SUBJECT OF TWO
APPEALS BY YOU BEFORE THE GSA BOARD OF CONTRACT APPEALS, DOCKET NOS.
831 AND 832, ALTHOUGH THERE IS A DISCREPANCY OF $50 BETWEEN THE AMOUNT
NOW BEING CLAIMED ($22,672.31) AND THE AMOUNTS INVOLVED IN THOSE APPEALS
($18,902.31 AND $3,720 RESPECTIVELY, OR A TOTAL OF $22,622.31). YOUR
DAMAGE CLAIM OF $23,710 WAS ALSO THE SUBJECT OF AN APPEAL TO THE BOARD
IN DOCKET NO. 861.
THE FOLLOWING PERTINENT FACTS ARE TAKEN FROM THE BOARD'S DECISION IN
DOCKETS 831 AND 832. CONTRACT NO. GS-07-B-4355, WHICH COVERED THE
CONSTRUCTION (EXCEPT ELEVATOR) OF THE U.S. POST OFFICE AND COURT HOUSE
AT VICTORIA, TEXAS, WAS AWARDED TO BURNETT ON JULY 24, 1959, FOR THE
LUMP-SUM PRICE OF $1,076,070. THE CONTRACT CONTAINED THE GENERAL
PROVISIONS (STANDARD FORM 23A) PRESCRIBED BY THE FEDERAL PROCUREMENT
REGULATIONS, INCLUDING THE FOLLOWING CLAUSE IN CONFORMITY WITH THE
DAVIS-BACON ACT:
"20. DAVIS-BACON ACT (40 U.S.C. 276A-A (7) (
(A) ALL MECHANICS AND LABORERS EMPLOYED OR WORKING DIRECTLY UPON THE
SITE OF THE WORK WILL BE PAID UNCONDITIONALLY AND NOT LESS OFTEN THAN
ONCE A WEEK, AND WITHOUT SUBSEQUENT DEDUCTION OR REBATE ON ANY ACCOUNT
(EXCEPT SUCH PAYROLL DEDUCTIONS AS ARE PERMITTED BY THE COPELAND ACT
(ANTI-KICKBACK) REGULATIONS (29 CFR, PART 3) ( THE FULL AMOUNTS DUE AT
TIME OF PAYMENT, COMPUTED AT WAGE RATES NOT LESS THAN THOSE CONTAINED IN
THE WAGE DETERMINATION DECISION OF THE SECRETARY OF LABOR WHICH IS
ATTACHED HERETO AND MADE A PART HEREOF, REGARDLESS OF ANY CONTRACTUAL
RELATIONSHIP WHICH MAY BE ALLEGED TO EXIST BETWEEN THE CONTRACTOR OR
SUBCONTRACTOR AND SUCH LABORERS AND MECHANICS; AND A COPY OF THE WAGE
DETERMINATION DECISION SHALL BE KEPT POSTED BY THE CONTRACTOR AT THE
SITE OF THE WORK IN A PROMINENT PLACE WHERE IT CAN BE EASILY SEEN BY THE
WORKERS.
"/B) IN THE EVENT IT IS FOUND BY THE CONTRACTING OFFICER THAT ANY
LABORER OR MECHANIC EMPLOYED BY THE CONTRACTOR OR ANY SUBCONTRACTOR
DIRECTLY ON THE SITE OF THE WORK COVERED BY THIS CONTRACT HAS BEEN OR IS
BEING PAID AT A RATE OF WAGES LESS THAN THE RATE OF WAGES REQUIRED BY
PARAGRAPH (A) OF THIS CLAUSE, THE CONTRACTING OFFICER MAY (1) BY WRITTEN
NOTICE TO THE GOVERNMENT PRIME CONTRACTOR TERMINATE HIS RIGHT TO PROCEED
WITH THE WORK, OR SUCH PART OF THE WORK AS TO WHICH THERE HAS BEEN A
FAILURE TO PAY SAID REQUIRED WAGES, AND (2) PROSECUTE THE WORK TO
COMPLETION BY CONTRACT OR OTHERWISE, WHEREUPON SUCH CONTRACTOR AND HIS
SURETIES SHALL BE LIABLE TO THE GOVERNMENT FOR ANY EXCESS COSTS
OCCASIONED THE GOVERNMENT THEREBY.
"/C) PARAGRAPHS (A) AND (B) OF THIS CLAUSE SHALL APPLY TO THIS
CONTRACT TO THE EXTENT THAT IT IS (1) A PRIME CONTRACT WITH THE
GOVERNMENT SUBJECT TO THE DAVIS-BACON ACT OR (2) A SUBCONTRACT UNDER
SUCH PRIME CONTRACT.'
IN ADDITION, THE SPECIFICATIONS OF THE CONTRACT CONTAINED THE
FOLLOWING PROVISIONS:
"SECTION 3
"APPLICABLE MINIMUM HOURLY RATES OF WAGES
"3-1. THE ATTACHED WAGE DETERMINATION DECISION OF THE SECRETARY OF
LABOR SPECIFIES THE MINIMUM HOURLY RATES OF WAGES WHICH SHALL BE PAID TO
LABORERS AND MECHANICS EMPLOYED OR WORKING DIRECTLY UPON THE SITE OF THE
WORK EMBRACED BY THIS SPECIFICATION; THE RATES HAVING BEEN DETERMINED
BY THE SECRETARY OF LABOR IN ACCORDANCE WITH THE PROVISIONS OF THE
DAVIS-BACON LAW, AS AMENDED, TO BE THE PREVAILING RATES FOR THE
CORRESPONDING CLASSES OF LABORERS AND MECHANICS EMPLOYED ON CONTRACTS OF
A SIMILAR CHARACTER IN THE LOCALITY WHERE THIS WORK IS TO BE PERFORMED.
THESE MINIMUM HOURLY RATES OF WAGES SHALL APPLY ONLY IF THE CONTRACT IS
IN EXCESS OF $2,000 IN AMOUNT.
"3-2. WHILE THE WAGE RATES GIVEN IN THE ATTACHED DECISION ARE THE
MINIMUM RATES REQUIRED TO BE PAID DURING THE LIFE OF THE CONTRACT, IT IS
THE RESPONSIBILITY OF BIDDERS TO INFORM THEMSELVES AS TO LOCAL LABOR
CONDITIONS SUCH AS THE PREVAILING WAGE RATES, THE LENGTH OF THE WORK DAY
AND WORK WEEK, OVERTIME COMPENSATION, HEALTH AND WELFARE CONTRIBUTIONS,
AVAILABLE LABOR SUPPLY, AND PROSPECTIVE CHANGES OR ADJUSTMENTS OF WAGE
RATES. THE CONTRACTOR SHALL ABIDE BY AND CONFORM TO ALL APPLICABLE
LAWS, EXECUTIVE ORDERS, AND RULES, REGULATIONS AND ORDERS OF FEDERAL
AGENCIES AUTHORIZED TO PASS UPON AND DETERMINE WAGE RATES. NO INCREASE
IN THE CONTRACT PRICE SHALL BE ALLOWED OR AUTHORIZED ON ACCOUNT OF THE
PAYMENT OF WAGE RATES IN EXCESS OF THOSE LISTED IN THE ATTACHED
DECISION.
"3-3. THE WAGE DETERMINATION DECISION OF THE SECRETARY OF LABOR IS
ATTACHED SOLELY FOR THE PURPOSE OF SETTING FORTH THE MINIMUM HOURLY WAGE
RATES REQUIRED TO BE PAID DURING THE LIFE OF THE CONTRACT AND IS NOT TO
BE ACCEPTED AS A GUARANTEE, WARRANTY OR REPRESENTATION AS TO THE WAGE
RATES INDICATED. UNDER NO CIRCUMSTANCES SHALL ANY MISTAKE IN ATTACHING
THE APPROPRIATE WAGE DETERMINATION DECISION OF THE SECRETARY OF LABOR
AND IN THE WAGE RATES SET FORTH ENTITLE THE SUCCESSFUL BIDDER TO
CANCELLATION OF HIS BID OR CONTRACT OR TO AN INCREASE IN THE CONTRACT
PRICE OR OTHER ADDITIONAL PAYMENT OR RECOVERY.'
THE WAGE DETERMINATION DECISION REFERRED TO AND INCLUDED IN THE
ADVERTISED SPECIFICATIONS (WAGE RATE DECISION NO. T-21,257, DATED APRIL
28, 1959) INCLUDED, AMONG OTHERS, THE FOLLOWING CRAFTS AND RATES:
CHART
"CRAFTS PER HOUR
LABORERS:
UNSKILLED $1.95
MASON TENDERS 2.125
MORTAR MIXERS 2.225
PIPELAYERS (CONCRETE AND CLAY) 2.125
ASPHALT RAKERS 1.95
WELL DRILLERS 2.50
BLASTERS 2.375
POWDERMEN 2.375
PLASTERERS' TENDERS 2.225
TRUCK DRIVERS 1.975
TRUCK DRIVERS, FLAT BED AND DUMP 2.025"
NOTICE TO PROCEED WAS ISSUED ON AUGUST 4, 1959. ON AUGUST 10, 1959,
YOU PROTESTED TO THE SECRETARY OF LABOR THAT CERTAIN WAGE RATES IN THE
DECISION WERE IN EXCESS OF THE ACTUAL WAGE RATES PREVAILING IN THE
CONSTRUCTION AREA. ON DECEMBER 9, 1959, THE DEPARTMENT OF LABOR ISSUED
A LETTER OF INADVERTENCE TO GSA STATING THAT THE ABOVE-QUOTED RATES
SHOULD HAVE BEEN OMITTED AND THE FOLLOWING RATES SHOULD HAVE BEEN
SPECIFIED:
CHART
PER HOUR
"LABORERS $1.25
PLASTERERS' TENDERS 1.50
MASON TENDERS 1.375
MORTAR MIXERS 1.50
TRUCK DRIVERS 1.50"
THEREAFTER CONSIDERABLE CORRESPONDENCE WAS EXCHANGED BETWEEN GSA AND
THE CONTRACTOR REGARDING THE MATTER. IN A LETTER DATED MAY 20, 1960,
THE CONTRACTING OFFICER INFORMED THE CONTRACTOR THAT IT HAD THE OPTION
TO (A) PAY WAGES IN FULL AT NOT LESS THAN THE MINIMUM WAGE RATES
CONTAINED IN THE SECRETARY OF LABOR'S ORIGINAL WAGE RATE DECISION, OR
(B) PAY WAGES AT THE RATES SET FORTH IN THE AMENDED WAGE RATE DECISIONS,
OR AT RATES BETWEEN THE MINIMUM RATES OF THE AMENDED DECISION AND THOSE
OF THE ORIGINAL DECISION; AND FURTHER, THAT IF IT ELECTED TO FOLLOW THE
COURSE OUTLINED UNDER (A) THERE WOULD BE NO NEED TO AMEND THE CONTRACT,
BUT THAT IF IT ELECTED TO FOLLOW ONE OF THE COURSES OUTLINED UNDER (B)
THE CONTRACT WOULD BE MODIFIED TO PERMIT THE PAYMENT OF THE LOWER
MINIMUM WAGES, AND THE GOVERNMENT THUS WOULD BE ENTITLED TO A CREDIT
DEDUCTION IN AN AMOUNT EQUAL TO THE TOTAL DIFFERENCE BETWEEN THE WAGES
COMPUTED AT THE ORIGINAL SPECIFIED MINIMUM RATES AND THE ACTUAL WAGES
PAID AT LOWER RATES FOR WORK PERFORMED UNDER THE APPROPRIATE
CLASSIFICATIONS. BY LETTER DATED JULY 1, 1960, THE CONTRACTOR ADVISED
CSA THAT IT HAD ELECTED TO PROCEED WITH THE COMPLETION OF THE PROJECT ON
THE BASIS OF THE LOWER RATES SET FORTH IN THE DEPARTMENT OF LABOR'S
LETTER OF INADVERTENCE, BUT THAT IT DID NOT AGREE THAT THE CONTRACT
PRICE WOULD BE SUBJECT TO ANY ADJUSTMENT BECAUSE OF THAT PROCEDURE.
THEREAFTER, IN A LETTER DATED JULY 13, 1960, GSA ADVISED THE CONTRACTOR
THAT IN VIEW OF ITS ELECTION TO PAY THE LOWER RATES, GSA WOULD FOLLOW
THE PROCEDURE OUTLINED IN THE LETTER OF MAY 20, 1960, AND WOULD
DETERMINE THE AMOUNT OF THE CREDIT ADJUSTMENT DUE THE GOVERNMENT AFTER
THE WORK ON THE PROJECT WAS COMPLETED.
WHEN THE WORK ON THIS PROJECT WAS COMPLETED, AN AUDIT WAS MADE OF THE
PAYROLLS SUBMITTED TO GSA AND AS A RESULT OF THIS AUDIT, THE CONTRACTING
OFFICER DETERMINED THAT EMPLOYEES WORKING ON THE PROJECT IN WAGE
CLASSIFICATIONS AFFECTED BY THE LETTER OF INADVERTENCE HAD BEEN PAID
$18,902.31 LESS THAN THEY WOULD HAVE RECEIVED IF THE RATES FIXED IN THE
ORIGINAL SCHEDULE OF MINIMUM WAGE RATES HAD BEEN PAID. ON THIS BASIS,
GSA WITHHELD FROM PAYMENTS OTHERWISE DUE THE CONTRACTOR THE AMOUNT OF
$19,000.
IN A LETTER DATED JANUARY 20, 1962, YOU SUBMITTED A CLAIM FOR THE
$19,000 WITHHELD, AND AT THE SAME TIME SUBMITTED A CLAIM FOR $3,720 TO
COVER INCREASED EXPENSES INCURRED BETWEEN AUGUST 5, 1959, AND JANUARY
13, 1960, AS THE RESULT OF BEING DIRECTED TO PAY CERTAIN WORKERS AT THE
SCHEDULE OF WAGE RATES CONTAINED IN THE ORIGINAL AWARD.
ON JUNE 6, 1962, THE CONTRACTING OFFICER NOTIFIED YOU THAT THE SUM OF
$18,902.31 WOULD BE WITHHELD AS AN EQUITABLE ADJUSTMENT IN THE CONTRACT
PRICE AS A RESULT OF THE CHANGES WHICH HAD BEEN MADE IN THE WAGE RATES.
YOUR APPEAL OF THIS DECISION UNDER THE "DISPUTES" CLAUSE OF THE CONTRACT
WAS REFERRED TO THE GSA BOARD OF CONTRACT APPEALS AND WAS ASSIGNED
DOCKET NO. 831.
ON MAY 23, 1962, THE CONTRACTING OFFICER CONFIRMED THE PRIOR
REJECTION OF ADDITIONAL COMPENSATION IN THE AMOUNT OF $3,700, AND YOUR
APPEAL FROM THIS DECISION WAS REFERRED TO THE GSA BOARD OF CONTRACT
APPEALS WHERE IT WAS ASSIGNED DOCKET NO. 832. HEARINGS ON THE TWO
APPEALS WERE HELD IN THE GSA REGIONAL OFFICE, DALLAS, TEXAS, ON DECEMBER
5, 1962.
AT THE HEARING, THE CONTRACTOR CONTENDED THAT THE COST ESTIMATES ON
WHICH IT RELIED IN PREPARING ITS BID HAD BEEN BASED ON THE ACTUAL
PREVAILING WAGE RATES IN THE VICTORIA AREA AND THAT IT HAD OVERLOOKED
THE HIGHER WAGE RATES CONTAINED IN THE SECRETARY OF LABOR'S WAGE RATE
DECISION DATED APRIL 28, 1959, WHICH WAS INCLUDED IN THE ADVERTISED
SPECIFICATIONS. IT STATED THAT ITS OFFICERS AND ESTIMATORS WERE WELL
AWARE OF THE ACTUAL PREVAILING WAGE RATES SINCE THE VAST MAJORITY OF ITS
WORK WAS PERFORMED IN THE CORPUS CHRISTI AREA WHICH INCLUDED VICTORIA.
IN SUPPORT OF THIS STATEMENT, IT POINTED OUT THAT THE PRESIDENT OF THE
COMPANY AND TWO OF HIS BROTHERS HAD SERVED AS OFFICERS IN THE LOCAL
CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS AND AS MEMBERS OF THE
NEGOTIATING COMMITTEE WHICH NEGOTIATED WAGE RATES WITH REPRESENTATIVES
OF THE TRADES INVOLVED IN BUILDING CONSTRUCTION IN THE AREA. IT
CONCEDED, HOWEVER, THAT IT DID NOT KNOW WHAT WAGE RATES ITS SEVERAL
SUBCONTRACTORS HAD USED IN PREPARING THE ESTIMATES ON WHICH THEY HAD
BASED THEIR SUBCONTRACT PRICES. IN FURTHER SUPPORT OF ITS POSITION
BURNETT SUBMITTED AFFIDAVITS IN WHICH SEVERAL OF ITS OFFICERS AND
EMPLOYEES STATED THAT ITS BID HAD BEEN PREPARED ON THE BASIS OF THE
LOWER RATES.
IN THE DECISION DATED SEPTEMBER 30, 1963, CONCERNING APPEAL NO. 831,
THE GSA BOARD OF CONTRACT APPEALS MADE REFERENCE TO THE BREAKDOWN OF
ESTIMATED COSTS AND OTHER EVIDENCE SUBMITTED TO SHOW THAT THE BID WAS
BASED ON THE LOWER WAGE RATES RATHER THAN THOSE INCLUDED IN THE SCHEDULE
OF MINIMUM WAGE RATES INCLUDED IN THE ADVERTISED SPECIFICATIONS, AND
CONCLUDED THAT THE EVIDENCE WAS NOT SUFFICIENT TO ESTABLISH THAT THE BID
HAD BEEN SO COMPUTED.
THE BOARD FOUND ALSO THAT THE RECORD CLEARLY SHOWED THE CONTRACTING
OFFICER HAD ISSUED A WRITTEN ORDER AUTHORIZING REDUCTIONS IN HOURLY WAGE
RATES INCLUDED IN THE SCHEDULE OF MINIMUM WAGES IN THE SPECIFICATIONS,
AND THAT SUCH AUTHORIZED LOWER RATES WERE PAID TO EMPLOYEES IN THOSE
WAGE CLASSIFICATIONS FROM JANUARY 14, 1960, UNTIL THE COMPLETION OF THE
PROJECT; THAT TOTAL WAGES PAID TO WORKMEN IN THESE LOWER WAGE
CLASSIFICATIONS WERE $18,902.31 LESS THAN WOULD HAVE BEEN PAID IF THESE
SAME WORKMEN HAD BEEN PAID THE HIGHER WAGE RATES ORIGINALLY INCLUDED IN
THE CONTRACT SPECIFICATIONS.
ON THESE FINDINGS THE BOARD HELD THAT THE GOVERNMENT IS ENTITLED TO
AN EQUITABLE CREDIT ADJUSTMENT IN THE CONTRACT PRICE AS A RESULT OF THE
ISSUANCE OF THE CHANGE ORDER REDUCING THE WAGE RATES INVOLVED IN THE
ORIGINAL SCHEDULE OF WAGE RATES, AND THAT THE SUM OF $18,902.31 AS
DETERMINED BY THE CONTRACTING OFFICER IS THE PROPER AND CORRECT AMOUNT
OF THE EQUITABLE CREDIT ADJUSTMENT TO WHICH THE GOVERNMENT IS ENTITLED.
THE BOARD LIKEWISE DENIED APPEAL NO. 832. THE BASIS FOR THE DENIAL
WAS THAT YOU DID NO MORE THAN YOU WERE OBLIGATED TO DO UNDER THE TERMS
OF THE CONTRACT, AND THAT THE BOARD HAD NO JURISDICTION TO GRANT ANY
RELIEF OUTSIDE THE TERMS OF THE CONTRACT.
IN SUPPORT OF THE CLAIM FOR REFUND OF THE MONEYS WITHHELD TO
EFFECTUATE EQUITABLE ADJUSTMENT YOU SAY, CITING 37 COMP. GEN. 326, THAT
SINCE A MINIMUM WAGE SCHEDULE IS NOT A REPRESENTATION THAT LABOR CAN BE
OBTAINED AT THE RATES SPECIFIED, AND SINCE IT IS THE OBLIGATION OF THE
CONTRACTOR TO BEAR SUCH EXPENSE AS MAY BE NECESSARY TO FURNISH LABOR AND
PERFORM THE CONTRACT, THE FACT THAT THE MINIMUM RATES INCORPORATED IN
THE CONTRACT MAY BE RAISED (OR MAY BE LOWERED) DOES NOT NECESSARILY MEAN
THAT PERFORMANCE IS MADE MORE EXPENSIVE (OR MADE LESS EXPENSIVE) AND
THAT THE CONTRACTOR IS ENTITLED IN EVERY CASE TO ADDITIONAL COMPENSATION
OR REQUIRED TO MAKE A REBATE TO THE GOVERNMENT. IN THIS REGARD YOU
CONTEND THAT WHEN THE MINIMUM WAGE CONDITIONS OF A CONTRACT ARE
MODIFIED, AS THEY WERE HERE, THAT AN ADJUSTMENT IN CONTRACT PRICE IS IN
ORDER ONLY WHEN THE MODIFICATION HAS DECREASED (OR INCREASED) THE
CONTRACTOR'S COST OF PERFORMANCE WHEN COMPARED WITH THE COSTS INCLUDED
IN HIS BID AND THAT HERE CERTAIN BID PAPERS (WHICH YOU ATTACH) SHOW THAT
THE CORRECT RATE WAS AT ALL TIMES CONTEMPLATED IN THE BIDDING PROCESS
AND NO ADJUSTMENT IS IN ORDER.
THE DAVIS-BACON ACT PROVIDES THAT THE ADVERTISED SPECIFICATIONS OF
CERTAIN GOVERNMENT CONSTRUCTION CONTRACTS SHALL CONTAIN A PROVISION
STATING THE MINIMUM WAGES TO BE PAID VARIOUS CLASSES OF LABORERS AND
MECHANICS, WHICH SHALL BE BASED UPON WAGES DETERMINED BY THE SECRETARY
OF LABOR TO BE PREVAILING FOR CORRESPONDING CLASSES OF WORKERS EMPLOYED
ON SIMILAR PROJECTS IN THE AREA. THE PERTINENT REQUIREMENT OF THE ACT
IS FULLY COMPLIED WITH WHEN A CONTRACT IS AWARDED, AS HERE, ON THE BASIS
OF ADVERTISED SPECIFICATIONS WHICH CONTAIN A MINIMUM WAGE SCHEDULE BASED
UPON SUCH A DETERMINATION BY THE SECRETARY OF LABOR. 36 COMP. GEN.
341. ONCE A CONTRACT HAS BEEN AWARDED, THE MINIMUM WAGE FLOOR IS AS
MUCH A FIXED AND BINDING CONDITION OF THE CONTRACT AS ANY OTHER
PROVISION, AND IS SUBJECT TO CHANGE ONLY BY THE SAME METHODS AND ON THE
SAME TERMS AND CONDITIONS--- THAT IS, AMENDMENT BY MUTUAL CONSENT AND
UPON VALID CONSIDERATION OR, AS HERE, BY CHANGE ORDERS ISSUED IN
ACCORDANCE WITH THE CONTRACT PROVISIONS, INCLUDING EQUITABLE ADJUSTMENT
OF THE CONTRACT PRICE. 37 COMP. GEN. 326.
WHAT CONSTITUTES AN EQUITABLE ADJUSTMENT HAS BEEN HELD TO BE A
QUESTION OF FACT. UNITED STATES V. CALLAHAN WALKER CO., 317 U.S. 56;
SILBERBLATT AND LASKER, INC. V. UNITED STATES, 101 CT.CL. 54.
THE "DISPUTES" CLAUSE, CONSISTENT WITH THE WUNDERLICH ACT, 41
U.S.C321 MAKES THE DECISION OF THE ADMINISTRATOR'S DULY AUTHORIZED
REPRESENTATIVE, THE BOARD OF CONTRACT APPEALS, FINAL AND CONCLUSIVE AS
TO FACTUAL MATTERS UNLESS SUCH DECISION IS FRAUDULENT, CAPRICIOUS,
ARBITRARY OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR
IS UNSUPPORTED BY SUBSTANTIAL EVIDENCE. B-142040, AUGUST 27, 1962.
IF THE BOARD'S DECISION, THAT THE GOVERNMENT IS ENTITLED TO AN
EQUITABLE CREDIT ADJUSTMENT OF $18,902.31, IS CONSIDERED AS A
DETERMINATION OF FACT, WE FIND IN THE RECORD NO BASIS FOR HOLDING IT TO
BE FRAUDULENT, ARBITRARY, CAPRICIOUS, GROSSLY ERRONEOUS OR UNSUPPORTED
BY SUBSTANTIAL EVIDENCE. AND IF THE DECISION IS CONSTRUED TO INVOLVE A
LEGAL CONCLUSION WHICH IS NOT FINAL OR BINDING UNDER THE DISPUTES
CLAUSE, WE MUST AGREE WITH THE BOARD'S VIEW OF THE APPLICABLE LAW. THE
CONTRACT AS ADVERTISED AND AWARDED OBLIGATED YOU TO PAY AT LEAST THE
WAGE RATES STIPULATED THEREIN, WHETHER YOUR BID WAS COMPUTED ON THE
BASIS OF THOSE RATES, OR HIGHER RATES, OR LOWER RATES. THE SUBSEQUENT
DETERMINATION OF THE SECRETARY OF LABOR THAT LOWER RATES SHOULD HAVE
BEEN DETERMINED DID NOT CHANGE YOUR OBLIGATION AND DID NOT AUTOMATICALLY
CHANGE OR BECOME A PART OF YOUR CONTRACT. IT FOLLOWS THAT THE
CONTRACTING OFFICER WOULD NOT HAVE AUTHORITY TO MODIFY THE MINIMUM WAGE
RATES FIXED BY THE CONTRACT WITHOUT REQUIRING AN ADJUSTMENT OF THE
CONTRACT PRICE, AND WE ARE SATISFIED THAT SUCH ADJUSTMENT SHOULD BE
MEASURED BY REFERENCE TO THE RATES WHICH WERE REQUIRED BY THE CONTRACT
RATHER THAN TO LOWER RATES ALLEGED TO HAVE BEEN USED IN COMPUTING YOUR
BID.
WITH RESPECT TO OUR DECISION OF JULY 27, 1954, B-119373, TO WHICH
YOUR COUNSEL REFERS, THAT CASE ALSO INVOLVED A SITUATION WHERE AS THE
RESULT OF A LETTER OF INADVERTENCE FROM THE DEPARTMENT OF LABOR, THE
CONTRACTOR WAS AUTHORIZED TO PAY A LOWER WAGE RATE THAN THAT CONTAINED
ORIGINALLY IN THE SPECIFICATIONS. HOWEVER, THE FACTS OF THAT CASE
DIFFERED SIGNIFICANTLY FROM THOSE UNDER CONSIDERATION HERE IN THAT THERE
IT WAS DEFINITELY ESTABLISHED THAT THE SPECIFICATION RATE WAS IN EXCESS
OF THE MAXIMUM SCALE OF WAGES FIXED BY THE WAGE STABILIZATION BOARD, AND
THAT THE CONTRACTOR, ALONG WITH OTHER BIDDERS, EMPLOYED THE LOWER RATE
IN COMPUTING ITS BID. IT ALSO APPEARED THAT A MUCH HIGHER RATE WAS
ACTUALLY PAID BY THE CONTRACTOR PRIOR TO THE COMPLETION OF THE PROJECT,
AND THE CONTRACTOR CONTENDED THAT THE AVERAGE OF WAGES PAID EXCEEDED THE
SPECIFICATION RATE. THUS, SINCE THE AUTHORIZATION TO PAY LOWER WAGES
WAS NOT SHOWN TO HAVE RESULTED IN A DECREASE OF THE CONTRACTOR'S COSTS
NO EQUITABLE CREDIT ADJUSTMENT WAS REQUIRED.
WITH RESPECT TO THE CLAIM FOR $3,720 WHICH WAS DOCKETED AS APPEAL NO.
832, ON OUR VIEW OF THE LAW AS INDICATED ABOVE WE AGREE WITH THE BOARD
THAT THE CONTRACTOR'S PAYMENT OF THE SPECIFICATION RATES WAS STRICTLY IN
ACCORDANCE WITH ITS CONTRACT AND THAT NO REIMBURSEMENT OF ANY AMOUNTS
PAID IN EXCESS OF THE RATES AUTHORIZED BY THE CHANGE ORDER IS
AUTHORIZED.
CLAIM IS ALSO MADE IN THE AMOUNT OF $23,710 FOR DAMAGES OCCASIONED BY
UNREASONABLE DELAYS IN THE CONSTRUCTION PROGRAM CAUSED BY GSA AND ITS
SUPERVISING ARCHITECTS DURING THE PERIOD BETWEEN AUGUST 24, 1959, AND
OCTOBER 28, 1960, STATING THAT THE TOTAL NUMBER OF DAYS OF DELAY
ATTRIBUTABLE TO THE GOVERNMENT IS 153 DAYS. THIS WAS THE SUBJECT OF
YOUR APPEAL TO THE GSA BOARD OF CONTRACT APPEALS IN DOCKET NO. 861.
THIS APPEAL WAS DISMISSED BY THE BOARD AS BEING A CLAIM FOR DAMAGES FOR
BREACH OF CONTRACT OVER WHICH THE BOARD HAD NO JURISDICTION. THE DELAY
CLAIM IS NOT BASED ON A SINGLE DELAY, BUT IS COMPRISED OF SEVERAL
MATTERS INVOLVING DELAYS FOR WHICH YOU CHARGE THE GOVERNMENT WITH
RESPONSIBILITY AS FOLLOWS:
"1. THE CONFLICTING DETAILS ON THE DRAIN TILE BEDS.
CLAIMANT DIRECTED THIS MATTER TO THE ATTENTION OF AN ARCHITECT EARLY
IN THE PROJECT PERIOD AND WHEN UNABLE TO OBTAIN VERBAL ASSURANCE, BY
LETTER DATED AUGUST 24, 1959 * * * CLAIMANT WROTE TO THE ARCHITECT
NOTING WITH SPECIFICITY THE CONFLICTING REFERENCES SET FORTH IN THE
PLANS APPLICABLE TO THE DRAINAGE IN THE BASEMENT AND PLANTING AREAS.
PLAINTIFF ASKED THE ARCHITECT TO PLEASE SEND INSTRUCTIONS AS TO WHICH
DRAINAGE METHOD WAS DESIRED IN THE SEVERAL AREAS INVOLVED. THE
ARCHITECTS AND GENERAL SERVICE ADMINISTRATION WERE ON NOTICE OF THE TIME
IMPORTANCE SURROUNDING THIS ISSUE; HOWEVER, THE REPLY WAS NOT
FORTHCOMING UNTIL SEPTEMBER 28, 1959 * * * WHEN THE ANSWER AS SUPPLIED
DID NOT FULLY COVER THE SUBJECT. ADDITIONAL TIME WAS REQUIRED TO
FINALIZE THE MATTER; HOWEVER, CLAIM IS MADE ONLY FOR 20 DAYS OF THE 35
DAYS BETWEEN THE FILING OF THE WRITTEN REQUEST FOR EXPLANATION AND
RECEIPT OF THE ANSWER INVOLVED.
"2. ERRONEOUS DATA PERTAINING TO SOILBEARING.
ON THURSDAY, SEPTEMBER 10, 1959, THE PROBLEM OF BASEMENT FOOTINGS AND
THE REFUSAL OF THE CONSTRUCTION ENGINEER TO ALLOW CONCRETE TO BE PLACED
UNTIL CLAIMANT ESTABLISHED THAT THE SOIL HAD ADEQUATE BEARING VALUE WAS
DIRECTED TO THE ATTENTION OF ALL THE PARTIES INVOLVED. THE ARCHITECTS
IMMEDIATELY CONTACTED THE GENERAL SERVICE ADMINISTRATION'S DALLAS
OFFICE, BUT DID NOT RECEIVE A RESPONSE WITH FURTHER DIRECTIONS AS TO HOW
TO PROCEED UNTIL SEPTEMBER 14, 1959. CLAIMANT WAS REFUSED APPROVAL BY
THE ARCHITECT TO PROCEED FURTHER UNTIL SEPTEMBER 15, 1959. THE FINAL
APPROVAL WAS NOT OBTAINED SO THE WORK COULD BEGIN UNTIL SEPTEMBER 16,
1959, THEREBY OCCASIONING A SIX DAY DELAY IN CONSTRUCTING A KEY SECTION
OF THE BUILDING, AND THEREBY IN TURN CAUSING CONSIDERABLE DELAY FOR THE
ENTIRE STRUCTURE. BY LETTER OF JANUARY 5, 1960 * * * THE CLAIM FOR THIS
NET SIX DAYS OF TIME WAS FULLY SET FORTH AND THE DAMAGES OCCASIONED
THEREBY WERE DETAILED. BECAUSE OF THE DELAY CLAIMANT EXPERIENCED TWO
HEAVY RAINS DURING THE INSTALLATION OF THE REMAINDER OF THE BASEMENT
FOOTINGS, WHICH CAUSED A GREATER TIME LOSS THAN THE SIX DAYS FOR WHICH
CLAIM IS MADE.
"3. SOLUTION TO THE REPLACEMENT OF THE 4-INCH C.I. DRAIN.
BY LETTER OF SEPTEMBER 4, 1959 * * * CLAIMANT INFORMED THE ARCHITECT
THAT THE DRAIN FROM THE CATCH BASEMENT FROM THE SUMP PUMP WOULD CUT INTO
ANOTHER DRAIN TILE AND REQUESTED CLARIFICATION OF THIS DISCREPANCY. NO
REPLY WAS RECEIVED UNTIL SEPTEMBER 29, 1959. STANDARD PROCEDURE IN
PROBLEMS OF THIS TYPE WOULD DICTATE THAT NO MORE THAN TWO WEEKS SHOULD
BE REQUIRED TO RESOLVE THE DIFFICULTY. IN THIS PARTICULAR CASE, 25 DAYS
WERE REQUIRED TO EFFECT A VERY SIMPLE SOLUTION TO THE PROBLEM.
ACCORDINGLY, A NET DELAY OF 12 DAYS IS CLAIMED UNDER THIS ITEM.
"4. CORRECTION OF ELEVATIONS ON GROUND FLOOR SLABS AND BEAMS AT MAIN
STREET.
ON AUGUST 26, 1959, CLAIMANT SOUGHT ADVICE FROM THE ARCHITECT
REGARDING THE DESIRED TREATMENT OF BEAMS UNDER THE SOLID SLAB AREAS AT
THE FIRST FLOOR LEVEL AT THE MAIN STREET END OF THE BUILDING. IT WAS
IMPERATIVE THAT CLAIMANT KNOW WHETHER THE BEAMS WERE TO SLOPE, DROP OR
INCREASE IN SIZE, ETC. CLAIMANT COULD NOT DETAIL FORMS FOR THESE BEAMS
UNTIL SUCH A DECISION WAS MADE. EVERY TWO OR THREE DAYS THEREAFTER A
REQUEST WAS AGAIN MADE UPON THE ARCHITECT WITHOUT ANY RESPONSE OTHER
THAN,"WE-LL LET YOU KNOW TOMORROW.' ON OCTOBER 2, 1959 * * * PLAINTIFF
REQUESTED THE SAME INFORMATION IN WRITING FROM THE ARCHITECT; HOWEVER,
IT WAS NOT UNTIL OCTOBER 14, 1959 * * * THAT A RESPONSE WAS RECEIVED
ADVISING OF SOME CHANGE IN THE ELEVATION OF THE LOCATION OF THE SLAB AT
THE WEST END OF THE BUILDING, AND THAT THE INFORMATION REQUESTED WOULD
NOT BE FURNISHED UNTIL THE CORRECTED ELEVATION DATA WAS AVAILABLE. ON
NOVEMBER 9, 1959, CLAIMANT AGAIN SOUGHT INFORMATION ON THIS PROBLEM FROM
THE ARCHITECT, BUT IT WAS NOT UNTIL NOVEMBER 26, 1959, THAT THE DETAILS
ALLEGEDLY DESIGNED TO CORRECT THE PROBLEM WERE RECEIVED. WHEN ACTUAL
FORM WORK WAS INITIATED, ADDITIONAL CHANGES HAD TO BE MADE, AND IN SOME
INSTANCES, IT WAS NECESSARY TO BOTH REMOVE AND REBUILD FORMS WHICH HAD
ALREADY BEEN INSTALLED. CLAIMANT SEEKS A NET DELAY OF 50 DAYS ON THIS
ITEM.
"5. INFORMATION ON TRAP DOOR IN CEILING.
BY LETTER OF SEPTEMBER 11, 1959, CLAIMANT SOUGHT APPROVAL FOR A
CHANGE IN THE TRAP DOOR INSTALLATION IN THE CEILING * * *. WHEN ONE
YEAR LATER NO SUCH INFORMATION HAD BEEN RECEIVED, PLAINTIFF AGAIN WROTE
ON AUGUST 4, 1960, ASKING FOR ADVICE * * *. ON SEPTEMBER 2, 1960 * * *
CLAIMANT AGAIN REQUESTED ADVICE ON THIS MATTER AND POINTED OUT THAT THIS
FAILURE TO OBTAIN THE REQUESTED CHANGE PRECLUDED THE COMPLETION OF THE
PLASTER WORK ON THE 4TH FLOOR. A CHANGE ORDER WAS FINALLY INITIATED BY
THE GENERAL SERVICES ADMINISTRATION ON OCTOBER 28, 1960, AFTER THE
PLASTERING CONTRACTOR HAD FINISHED THE WORK ON THE 4TH FLOOR. THIS
RESULTED IN THE PATCHING OF THE PLASTER IN THE TRAP DOOR AREA FOLLOWING
THE ISSUANCE OF THE CHANGE ORDER AND AWAITING THE SPECIFIED CURING
PERIOD PRIOR TO THE START OF PAINTING. A CLAIM OF 45 DAYS IS SOUGHT FOR
THIS DELAY.
"6. WALL LEAK IN UPPER FLOORS.
BY LETTER OF MARCH 17, 1960 * * * CLAIMANT ADVISED THE ARCHITECT OF
THE LEAKAGE PROBLEM THOUGH THE EXTERIOR WALLS AT THE UPPER LEVEL OF THE
BUILDING DUE TO THE FACT THAT FULL HEADER COURSES WERE REQUIRED EVERY
SIXTH COURSE IN THE WALL CONSTRUCTION. BY LETTER OF AUGUST 23, 1960 * *
* CLAIMANT WAS ADVISED THAT THE GENERAL SERVICES ADMINISTRATION WAS
PROPOSING A CHANGE IN THE TREATMENT OF THIS AREA, AMONG OTHERS, AND,
THEREFORE, THAT FURTHER WORK SHOULD BE STOPPED UNTIL THE MATTER WAS
RESOLVED. FINALLY, A CHANGE ORDER WAS PROCESSED AND CLAIMANT WAS
INSTRUCTED TO PROCEED WITH THE WORK ON SEPTEMBER 15, 1960. A NET CLAIM
OF 20 DAYS DELAY IS REQUESTED.
"THE AFORESAID ITEMIZED CLAIMS TOTAL DELAYS OF 153 DAYS. A DETAIL
BREAKDOWN OF THE COST AS A RESULT OF THE DELAYS IS SET FORTH ON ATTACHED
EXHIBIT 17.'
IN ANSWER TO THE CLAIM CONCERNING "1. THE CONFLICTING DETAILS ON THE
DRAIN TILE BEDS.' GSA STATES THAT YOU HAVE SUBMITTED NO EVIDENCE THAT
PROJECT COMPLETION WAS DELAYED IN ANY WAY DURING THE INTERVAL BETWEEN
YOUR LETTER REQUESTING CLARIFICATION OF CERTAIN REFERENCES IN THE
SPECIFICATIONS AND RECEIPT OF THE ARCHITECT'S LETTER OF EXPLANATION;
THAT YOU HAD LIKEWISE FAILED TO FURNISH TO GSA ANY EVIDENCE THAT YOU HAD
BEEN DELAYED IN COMPLETING THE PROJECT BY AWAITING A RESPONSE TO ITS
INQUIRY IN THIS PARTICULAR MATTER; AND THAT A CLAIM FOR MONEY DAMAGES
FOR DELAY APPEARS GROUNDLESS IN THE ABSENCE OF EVIDENCE THAT THE PROJECT
WAS, IN FACT, DELAYED.
IN ANSWER TO THE CLAIM CONCERNING "2. ERRONEOUS DATA PERTAINING TO
SOILBEARING.' GSA STATES THAT WHILE YOU INDICATE THAT CONTRACT
PERFORMANCE WAS STOPPED ON SEPTEMBER 10, 1959, PENDING A DETERMINATION
OF WHETHER OR NOT THE WORK COULD PROCEED IN ACCORDANCE WITH EXISTING
PLANS AND SPECIFICATIONS AND THAT THE WORK WAS RESUMED ON SEPTEMBER 16,
1959, ACCORDING TO GSA RECORDS, NOTICE TO RESUME THE WORK WAS NOT GIVEN
UNTIL SEPTEMBER 22, 1959, AND WORK WAS RESUMED THE FOLLOWING DAY; AND
THAT IN THE PERIOD BETWEEN SEPTEMBER 10 AND 22, 1959, THE FOLLOWING
SEQUENCE OF EVENTS TOOK PLACE. YOU WERE INSTRUCTED TO MAKE SOIL TESTS,
SIX OF THE SEVEN TESTS MADE PURSUANT THERETO BEING CONTRACT
REQUIREMENTS. THE SEVEN TESTS WERE MADE ON SEPTEMBER 14, 1959. FURTHER
TESTING WAS DETERMINED TO BE NECESSARY BUT THESE, WHEN MADE, FAILED TO
MEET SPECIFICATION REQUIREMENTS. THEREFORE ON SEPTEMBER 16, 1959,
REPRESENTATIVES OF THE ARCHITECT AND GSA VISITED THE JOB SITE AND
DECIDED TO SEND SOIL SAMPLES TO AN INDEPENDENT TESTING LABORATORY IN
AUSTIN, TEXAS. YOU WERE INSTRUCTED NOT TO PROCEED UNTIL INFORMATION WAS
RECEIVED ON THE RESULTS. TEST RESULTS WERE RECEIVED ON SEPTEMBER 22,
1959, AND WERE THEN EVALUATED. ON THE SAME DATE SEPTEMBER 22, 1959, YOU
WERE NOTIFIED TO PROCEED WITH THE WORK. GSA FURTHER STATES THAT IT
FOUND THAT THE PROJECT HAD BEEN DELAYED ONLY SIX DAYS AS A RESULT OF THE
INVESTIGATION OF THE UNKNOWN SOIL CONDITION; THAT A CONTRACT CHANGE
ORDER PROPOSAL FROM YOU WAS ACCEPTED, COVERING THE EXTRA COSTS INCURRED
BY YOU AS A RESULT OF THE INVESTIGATION OF THE UNKNOWN SOIL CONDITION;
AND THAT THE CONTRACT PERIOD WAS EXTENDED SIX DAYS TO COVER THE DELAY
ATTRIBUTABLE TO THIS INVESTIGATION.
IN ANSWER TO THE CLAIM CONCERNING "3. SOLUTION TO THE REPLACEMENT OF
THE 4-INCH C.I. DRAIN.' GSA REPORTS THAT WHILE YOU HAVE ALLEGED THAT A
TWELVE-DAY DELAY WAS INCURRED WHILE AWAITING AN ANSWER TO ITS INQUIRY
CONCERNING THE DRAINS, YOU HAD REDUCED YOUR REQUEST TO THE CONTRACTING
OFFICER FOR AN EXTENSION OF TIME FROM TWELVE DAYS TO ONLY ONE DAY
BECAUSE OF OVERLAP WITH THE ALLEGED DELAY DISCUSSED IN CLAIM 1 ABOVE;
THAT IN ORDER TO OVERCOME YOUR PREVIOUS ADMISSION, YOU WOULD BE REQUIRED
TO SUBMIT SOME EVIDENCE SHOWING THAT YOU ACTUALLY DID INCUR GREATER
DELAY THAN PREVIOUSLY ADMITTED; THAT YOU HAVE FURNISHED THE GENERAL
ACCOUNTING OFFICE NOTHING MORE THAN YOUR LETTER ASKING FOR
CLARIFICATION, WHICH HAS NO VALUE BY ITSELF AS EVIDENCE OF DELAY; AND
THAT GSA, FROM A REVIEW OF ITS OWN RECORDS ON THIS PROJECT WAS UNABLE TO
DETERMINE THAT YOU HAD INCURRED ANY DELAY IN COMPLETION OF THE CONTRACT
AS A RESULT OF THIS PARTICULAR INQUIRY.
IN ANSWER TO THE CLAIM CONCERNING "4. CORRECTION OF ELEVATIONS ON
GROUND FLOOR SLABS AND BEAMS AT MAIN STREET.' GSA REPORTS THAT ON
OCTOBER 2, 1959, YOU REQUESTED INFORMATION WITH RESPECT TO THE BEAMS
UNDER THE SOLID SLAB AREAS AT THE FIRST FLOOR LEVEL ON THE MAIN STREET
END OF THE BUILDING; THAT ON OCTOBER 14, THE ARCHITECT REPLIED,
INFORMING YOU THAT SOME CHANGES IN ELEVATION WOULD BE MADE, BUT THAT THE
CHANGES COULD NOT BE FIRMLY SETTLED UPON UNTIL INFORMATION HAD BEEN
RECEIVED FROM THE CITY OF VICTORIA WITH RESPECT TO POSSIBLE REVISIONS IN
THE CURB GRADES; THAT BY NOVEMBER 12, 1959, THE ARCHITECT HAD PREPARED
REVISED DRAWINGS AND SUBMITTED THEM TO GSA FOR APPROVAL; THAT ON
NOVEMBER 18, 1959, THE ARCHITECT WAS INFORMED BY TELEPHONE THAT THE
DRAWINGS WERE APPROVED; THAT YOU DID NOT COMMENCE THE WORK IN QUESTION
UNTIL NOVEMBER 23, 1959; THAT IT APPEARS FROM INFORMATION FURNISHED BY
THE ARCHITECT THAT YOU COULD NOT HAVE STARTED THE WORK EARLIER THAN THE
FIRST WEEK IN NOVEMBER AND THAT AN IRON WORKERS STRIKE FROM NOVEMBER 5
TO 25, 1959, WOULD HAVE PREVENTED YOU FROM COMPLETING THE BEAMS PRIOR TO
THE LATTER PART OF NOVEMBER IN ANY EVENT. GSA FURTHER REPORTS THAT A
YEAR AND A HALF LATER, YOU ASKED FOR A CHANGE ORDER COVERING THE EXTRA
COSTS INCURRED AS A RESULT OF THIS CHANGE; THE FULL AMOUNT OF YOUR
PROPOSAL WAS ULTIMATELY APPROVED AND ACCEPTED; THAT YOU ALSO SOUGHT AN
EXTENSION OF CONTRACT TIME OF 50 DAYS (SUBSEQUENTLY INCREASED TO 53 1/2
DAYS) FOR DELAYS ARISING FROM THIS CHANGE; BUT THAT TAKING ALL THE
ABOVE-RECITED CIRCUMSTANCES INTO CONSIDERATION AS WELL AS THE FACT THAT
CONSTRUCTION WAS NEVER
STOPPED FOR LACK OF THE REVISED DRAWINGS, GSA FOUND THAT THE PROJECT
HAD BEEN DELAYED BY ONLY 17 DAYS. IN CONNECTION THEREWITH GSA STATES
THAT IT WILL BE SEEN THAT THE TOTAL PERIOD OF DELAY BETWEEN THE OCTOBER
2, 1959, REQUEST AND THE NOVEMBER 18, 1959, APPROVAL OF REVISED DRAWINGS
WAS ATTRIBUTABLE IN PART TO THE NECESSITY OF FIRST SECURING THE CITY'S
DECISION AS TO CURB GRADES, FOLLOWED BY THE PREPARATION OF DRAWINGS AND
SECURING APPROVAL THEREOF; THAT THE FIRST CAUSE OF DELAY WAS DUE, NOT
TO ANY ACTION ON THE PART OF GSA, BUT TO A CAUSE OUTSIDE GSA'S CONTROL;
THAT THE SECOND PERIOD OF DELAY, WHICH CAN BE ATTRIBUTED TO THE
GOVERNMENT, IS NOT EXCESSIVE IN GSA'S OPINION, THAT WHILE GSA BELIEVES
YOU WERE DELAYED TO THE EXTENT OF 17 DAYS AS A RESULT OF THIS CHANGE, IT
FEELS THAT ONLY A PORTION THEREOF WAS CAUSED BY THE GOVERNMENT; AND
THAT THIS PORTION WAS NOT EXCESSIVE FOR PREPARATION AND APPROVAL OF
PLANS AND THAT IT COULD NOT BE CONSIDERED SO UNREASONABLE AS TO
CONSTITUTE A BREACH OF CONTRACT.
IN ANSWER TO THE CLAIM CONCERNING "5. INFORMATION ON TRAP DOOR IN
CEILING.' GSA REPORTS THAT IT IS ACKNOWLEDGED THAT APPROXIMATELY A YEAR
ELAPSED FROM THE TIME YOU FIRST MADE INQUIRY AND THE TIME A CHANGE ORDER
PROPOSAL WAS ACCEPTED, BUT THAT GSA WAS UNABLE TO FIND THAT THE PROJECT
COMPLETION ITSELF HAD BEEN DELAYED IN ANY WAY DURING THIS INTERVAL;
THAT SINCE NONE OF THE SUPPORTING DOCUMENTS ATTACHED TO YOUR LETTER TO
OUR OFFICE CONTAIN ANY EVIDENCE THAT THE PROJECT WAS, IN FACT, DELAYED
BY THIS MATTER AND SINCE A CLAIM FOR DAMAGES ARISES ONLY AFTER A
CLAIMANT HAS FIRST ESTABLISHED THAT A DELAY WAS INCURRED, GSA FINDS NO
MERIT IN THIS PORTION OF THE CLAIM. GSA CONTINUES BY STATING THAT IT
WOULD APPEAR THAT YOU ARE EQUATING A DELAY IN RECEIVING INFORMATION OR
ACCEPTANCE OF A CHANGE ORDER WITH A DELAY IN ACTUAL PERFORMANCE OF THE
PROJECT, AN EQUATION WHICH DOES NOT NECESSARILY EXIST AND, IN THIS CASE,
ONE WHICH IS NOT PRESENT; AND THAT IT APPEARS OBVIOUS THIS MINOR CHANGE
COULD NOT AND DID NOT HOLD UP CONTRACT PERFORMANCE BY 45 DAYS, AS YOU
ALLEGE.
IN ANSWER TO THE CLAIM CONCERNING "6. WALL LEAK IN SUPPER FLOORS.'
GSA STATES THAT WHILE YOU HAVE ALLEGED IN YOUR LETTER TO US THAT YOU
WERE DELAYED 20 DAYS IN COMPLETING THE PROJECT AS A RESULT OF THE
WATERPROOFING CHANGE ORDER, YOU HAD EARLIER REDUCED YOUR ALLEGATION OF
DELAY TO ONLY 11 DAYS; THAT IF YOU BELIEVED YOU HAD BEEN DELAYED BY
ONLY 11 DAYS (FOR WHICH A TIME EXTENSION WAS DULY GRANTED), YOU MUST NOW
PRODUCE EVIDENCE TO SUPPORT AN ASSERTION THAT A LONGER DELAY WAS
INCURRED; AND THAT FOR LACK OF SUCH EVIDENCE YOU HAVE FAILED TO
SUBSTANTIATE THE CHARGE OF A 20-DAY DELAY. GSA ALSO STATES THAT THE
ACTUAL DELAY WAS NOT DUE TO UNREASONABLY DILATORY ACTION ON THE PART OF
THE GOVERNMENT; THAT THE ARCHITECT SUSPENDED THE WORK ON THIS PORTION
OF THE PROJECT (NOT THE ENTIRE PROJECT) ON AUGUST 23, 1960, AND ON
AUGUST 31, 1960, SUBMITTED TO YOU A DESCRIPTION OF THE AREA AND PROPOSED
METHOD OF TREATMENT, TOGETHER WITH A REQUEST FOR A PROPOSAL FOR A CHANGE
ORDER; THAT YOU DID NOT SUBMIT YOUR PROPOSAL UNTIL SEPTEMBER 12, 1960;
THAT 3 DAYS LATER, THE PROPOSAL WAS ACCEPTED; THAT GSA FINDS NOTHING IN
THIS SEQUENCE OF EVENTS CONSTITUTING UNNECESSARY OR UNREASONABLE DELAY
ON THE PART OF THE GOVERNMENT; HALF OF WHICH IS ATTRIBUTABLE TO YOU;
AND THAT IT, THEREFORE CANNOT BE CONSIDERED AS A BREACH OF THE CONTRACT
BY THE GOVERNMENT.
AS YOU POINT OUT, CITING J. A. ROSS AND CO. V. UNITED STATES, 126
CT.CL. 323; JAMES STEWART AND CO., INC. V. UNITED STATES, 105 CT.CL.
284; NILS P. SEVERIN V. UNITED STATES, 101 CT.CL. 54; F. H.
SILBERBLATT AND LASKER, INC. V. UNITED STATES, 101 CT.CL. 54; F. H.
MCGRAW AND COMPANY V. UNITED STATES, 131 CT.CL. 501 IT IS WELL SETTLED
THAT THE GOVERNMENT IS ALLOWED ONLY A REASONABLE TIME WITHIN WHICH TO
MAKE PERMITTED CHANGES IN THE SPECIFICATIONS AND IS LIABLE FOR BREACH OF
ITS CONTRACT IF IT UNREASONABLY DELAYS OR DISRUPTS CLAIMANT'S WORK.
HOWEVER, IT IS EQUALLY WELL ESTABLISHED THAT WHILE A CONTRACTOR IS
ENTITLED TO AN EQUITABLE ADJUSTMENT IN THE CONTRACT PRICE FOR PERFORMING
ADDITIONAL OR ALTERED WORK UNDER A CHANGE ORDER WHICH CHANGES THE
CONTRACT DRAWINGS AND/OR SPECIFICATIONS, IN THE ABSENCE OF A "SUSPENSION
OF WORK" CLAUSE, A CONTRACTOR MAY NOT BE PAID ADDITIONAL COMPENSATION TO
COVER COSTS DUE TO REASONABLE DELAYS WHICH RESULT FROM A CHANGE ORDER OR
ORDERS ISSUED UNDER THE "CHANGES" CLAUSE OR "CHANGED CONDITIONS" CLAUSE
OF THE CONTRACT. UNITED STATES V. RICE, 317 U.S. 61; H. E. CROOK CO.
V. UNITED STATES, 270 U.S. 4; AND CHOUTEAU V. UNITED STATES, 95 U.S.
61.
WHILE IT IS OUR POSITION THAT THE CLAIM SETTLEMENT JURISDICTION OF
OUR OFFICE EXTENDS TO CLAIMS OF THE NATURE OF THOSE HERE ASSERTED, IT
HAS BEEN OUR PRACTICE TO DECLINE TO SETTLE SUCH CLAIMS UNLESS BOTH THE
GOVERNMENT'S LIABILITY AND THE AMOUNT OF THE DAMAGES RESULTING FROM THE
GOVERNMENT'S WRONGFUL ACTS WERE ESTABLISHED WITH REASONABLE CERTAINTY.
IN THIS INSTANCE THE STATEMENT OF GSA'S POSITION WITH RESPECT TO EACH OF
THE SEVERAL BASES OF YOUR CLAIM INDICATES THAT THE OCCURRENCE OF
UNREASONABLE DELAYS ATTRIBUTABLE TO THE GOVERNMENT, AND/OR RESULTING
DAMAGE TO YOU, IS EMPHATICALLY DENIED AND MUST, AT BEST, BE CONSIDERED
EXTREMELY DOUBTFUL. IN VIEW OF THE CONFLICTING ALLEGATIONS IN THE
PRESENT RECORD WE CANNOT CONCLUDE THAT THE EVIDENCE BEFORE US IS
SUFFICIENT TO CARRY THE BURDEN, WHICH IS UPON THE CONTRACTOR, TO
ESTABLISH SUCH UNREASONABLE DELAY AS WOULD CONSTITUTE A BREACH OF THE
GOVERNMENT'S OBLIGATIONS.
IN THE CIRCUMSTANCES WE MUST CONSIDER THE DELAY CLAIMS OF SUCH
DOUBTFUL VALIDITY AS TO REQUIRE THEIR REJECTION BY THIS OFFICE, LEAVING
YOU TO SEEK ANY REMEDY THEREFOR IN THE COURTS. SEE LONGWILL V. UNITED
STATES, 17 CT.CL. 288; AND CHARLES V. UNITED STATES, 19 ID. 316.
B-158945, JUN. 9, 1966