"/2) HOME OFFICE EXPENSE AT THE RATE OF TWO PERCENT (2 PERCENT) OF
THE TOTAL COSTS OF PERFORMING THE WORK UNDER THE CONTRACT.
"G. IF THE PARTIES FAIL TO AGREE UPON THE ADJUSTMENT TO BE MADE THE
DISPUTE SHALL BE DETERMINED AS PROVIDED IN ARTICLE 11 HEREOF.'
ARTICLE 11 PROVIDED THAT EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN
THE CONTRACT, ALL DISPUTES CONCERNING QUESTIONS OF FACT ARISING UNDER
THE CONTRACT WERE TO BE DECIDED BY THE CONTRACTING OFFICER SUBJECT TO
WRITTEN APPEAL BY THE CONTRACTOR TO THE HEAD OF THE DEPARTMENT CONCERNED
OR HIS DULY AUTHORIZED REPRESENTATIVE WHOSE DECISION WAS TO BE FINAL AND
CONCLUSIVE UPON THE PARTIES.
IN THE COURSE OF MAKING PAYMENTS UNDER THE CONTRACT DOUBT AROSE AS TO
WHETHER CERTAIN ITEMS OF COST IN CONNECTION WITH THE CONTRACT WORK
SHOULD BE INCLUDED IN THE COMPUTATION OF THE ,CONTRACTOR'S ADJUSTED
COST" AS DEFINED IN ARTICLE 29 OF THE CONTRACT. IN OUR DECISION OF
MARCH 18, 1958, B-134500, WE HELD THAT OF THE THREE ITEMS PRESENTED FOR
OUR CONSIDERATION, ONLY THE ITEM HERE INVOLVED WAS NOT TO BE SO
CONSIDERED. THAT ITEM IN THE AMOUNT OF $11,881.78--- LATER SHOWN AS
$11,995--- WAS MADE THE SUBJECT OF A CLAIM PRESENTED TO OUR OFFICE AND
WAS DISALLOWED BY THE SETTLEMENT OF MAY 8, 1959.
IN YOUR LETTER OF JUNE 2 YOU REFER TO THE STATEMENT IN OUR DECISION
THAT "WHILE COSTS OF SUCH NATURE COULD BE ALLOWED IF INCURRED IN EFFORTS
TO OBTAIN A SATISFACTORY SETTLEMENT OF ALL MATTERS INVOLVING THE
OBLIGATION OF THE GOVERNMENT TO MAKE PAYMENT PURSUANT TO THE CONTRACT
PROVISIONS, IT WOULD NOT BE PROPER TO ALLOW ANY AMOUNT EXPENDED IN THE
PROSECUTION OF AN UNLIQUIDATED DAMAGE CLAIM AGAINST THE GOVERNMENT.'
ALSO, YOU STATE THAT THE AMOUNT OF $11,995 COMPRISES TWO ITEMS. THE
FIRST ITEM OF $10,717.49 REPRESENTS AMOUNTS CLAIMED TO HAVE BEEN
EXPENDED FOR ROUTINE LEGAL WORK AND PRESENTATION OF CLAIMS AGAINST THE
GOVERNMENT ARISING UNDER THE CONTRACT. THE SECOND ITEM OF $1,277.51
REPRESENTS EXPENSES INVOLVED IN CONNECTION WITH THE FILING OF A SUIT
AGAINST THE UNITED STATES IN THE COURT OF CLAIMS ON JANUARY 7, 1957, FOR
THE RECOVERY OF $646,000 ALLEGEDLY EXPENDED BY YOU BECAUSE THE
GOVERNMENT-OWNED QUARRY WAS NOT AS REPRESENTED. IT HAS BEEN INFORMALLY
ASCERTAINED THAT THE SUIT IS STILL PENDING IN COURT.
WHEN YOUR CLAIM, IN THE AMOUNT OF $11,995, WAS SUBMITTED TO OUR
OFFICE FOR SETTLEMENT IT WAS ACCOMPANIED BY A STATEMENT DATED MARCH 4,
1959, BY THE CONTRACTING OFFICER, COLONEL A. M. JACOBY, CORPS OF
ENGINEERS. IN THAT STATEMENT HE POINTS OUT THAT THE AUDITING OF YOUR
ACCOUNTS BY A CERTIFIED PUBLIC ACCOUNTANT INDICATES A VERIFICATION OF
YOUR EXPENDITURES BUT IS NOT, IN ITSELF, ACCEPTED BY THE CONTRACTING
OFFICE AS CLASSIFYING ALL COSTS, PARTICULARLY LEGAL EXPENSES, AS
ALLOWABLE COSTS. THE CONTRACTING OFFICER STATES FURTHER THAT COSTS
INCURRED IN PROSECUTION OF CLAIMS AGAINST A PARTY OTHER THAN A MEMBER OF
THE ORGANIZATION NO DOUBT WOULD BE CONSIDERED GOOD COSTS AND ACCEPTED
UNDER RECOGNIZED COMMERCIAL ACCOUNTING PRINCIPLES. THE GOVERNMENT,
HOWEVER, WAS CONSIDERED BY HIM AS A "MEMBER OF THE ORGANIZATION" SINCE
IT PARTICIPATED IN CERTAIN PROFITS OF THE VENTURE THROUGH APPLICATION OF
ARTICLE 29 OF THE CONTRACT. AND "IF LEGAL COSTS OF THE CONTRACTOR ON
SUITS AGAINST THE GOVERNMENT ARE ALLOWABLE" HE POSES THE QUESTION AS TO
HOW THE EXPENSES OF DEFENSE BY THE GOVERNMENT SHOULD BE CONSIDERED. HE
RECOMMENDED THAT THE CLAIM BE DISALLOWED IN ITS ENTIRETY FOR THE REASON
THAT HE BELIEVED THAT EXPENSES INVOLVING CONTROVERSIES BETWEEN THE
PARTIES PARTICIPATING IN A PORTION OF THE PROFITS APPEARED TO BE
EXPENSES WHICH NORMALLY SHOULD BE PAID FROM FUNDS AVAILABLE FOR HOME
OFFICE OPERATIONS, WHICH IN THIS CASE WAS FIXED AT TWO PERCENT OF THE
TOTAL COSTS OF PERFORMING THE WORK UNDER THE CONTRACT.
THE RECORD PRESENTLY BEFORE OUR OFFICE DOES NOT SHOW THAT WE WERE
FULLY APPRISED AT THE TIME OF OUR DECISION, OF ALL THE DETAILS OF THE
EXPENSES NOW CLAIMED. HOWEVER, IN VIEW OF THE FOREGOING, IT MUST BE
CONCLUDED THAT THE LEGAL AND OTHER EXPENSES INVOLVED IN PROCESSING
CLAIMS AGAINST THE GOVERNMENT MUST BE REGARDED AS INCLUDED IN THE TWO
PERCENT ALLOWANCE FOR HOME OFFICE EXPENSE.
WITH REGARD TO YOUR REQUEST TO BE ADVISED AS TO THE ADMINISTRATIVE
PROCEDURE "AVAILABLE TO US AT THIS TIME" SINCE YOU WERE NOT ADVISED BY
THE CONTRACTING OFFICER AS TO THE MERITS OF YOUR CLAIM
AFTER YOU SUBMITTED IT TO HIM ON OCTOBER 15, 1958, YOUR ATTENTION IS
INVITED TO THE PROVISIONS OF ARTICLES 11 AND 29 (G) OF THE CONTRACT. IT
IS NOTED, HOWEVER, THAT AT THE TIME OF FILING YOUR CLAIM YOU DID NOT
REQUEST A FINDING FROM THE CONTRACTING OFFICER IN REGARD TO THE MATTER
SO THAT YOU MIGHT TAKE AN APPEAL THEREFROM IF THE FINDING WERE ADVERSE
TO YOU.
B-137482, AUG. 13, 1959
TO LOS ANGELES AIR SERVICE:
YOUR LETTER DATED JULY 2, 1959, FORWARDED A CLAIM IN THE AMOUNT OF
$50,999.16, REPRESENTING DAMAGES IN THE FORM OF LOST PROFITS ALLEGEDLY
SUSTAINED BY REASON OF THE GOVERNMENT'S DELAY UNTIL DECEMBER 19, 1958,
IN AWARDING YOUR COMPANY A CONTRACT FOR AIR PASSENGER TRANSPORTATION
SERVICES UNDER IFB 11-626-59-3-CAB.
YOUR CLAIM ARISES AS A RESULT OF THE CIRCUMSTANCES UNDER WHICH THE
DEPARTMENT OF THE AIR FORCE, AFTER REJECTING YOUR LOW BID ON ITEM 7
UNDER THE ABOVE INVITATION, AWARDED A CONTRACT TO COASTAL CARGO COMPANY,
INC., FOR THE SERVICES COVERED BY THIS ITEM AND CONTINUED TO ACCEPT SUCH
SERVICES FROM THAT COMPANY DURING THE PERIOD FROM OCTOBER 1 TO DECEMBER
18, 1958, AT WHICH TIME THE SMALL BUSINESS ADMINISTRATION CERTIFIED YOUR
COMPANY AS COMPETENT TO PERFORM THE REQUIRED SERVICE, THE AWARD TO
COASTAL WAS CANCELLED, AND A CONTRACT WAS AWARDED TO YOUR COMPANY
COVERING THE REMAINING PERIOD FROM DECEMBER 19, 1958, THROUGH SEPTEMBER
30, 1959.
THE AMOUNT OF YOUR CLAIM REPRESENTS A COMPUTATION OF PROFITS
ALLEGEDLY LOST BY YOUR COMPANY ON 1356 PASSENGERS DURING THE PERIOD
OCTOBER 1 THROUGH DECEMBER 18, 1958. YOUR CLAIM IS APPARENTLY BASED
UPON A BELIEF THAT YOU WERE ENTITLED TO RECEIVE A CONTRACT AWARD ON OR
BEFORE OCTOBER 1, 1958; THAT FAILURE TO RECEIVE SUCH AWARD WAS DUE TO
THE ILLEGAL AND WRONGFUL FAILURE OF THE CONTRACTING OFFICER TO FOLLOW
PROCEDURES PRESCRIBED BY DEPARTMENTAL REGULATIONS; AND THAT FAILURE TO
RECEIVE A TIMELY AWARD DID NOT RESULT FROM FAULT OR NEGLIGENCE OF YOUR
COMPANY. YOUR LETTER OF JULY 2, 1959, THEREFORE REQUESTS OUR FAVORABLE
DECISION OR, IN THE EVENT THE CLAIM IS DISALLOWED, YOU ASK THAT THE
CLAIM BE REFERRED TO THE CONGRESS UNDER THE PROVISIONS OF THE ACT OF
APRIL 10, 1928, 31 U.S.C. 236.
THE PAYMENT JURISDICTION OF THIS OFFICE ON CLAIMS AGAINST THE
GOVERNMENT IS LIMITED TO THOSE CASES IN WHICH THE FACTS AND
CIRCUMSTANCES CLEARLY INDICATE THE EXISTENCE OF AN ENFORCEABLE
OBLIGATION AGAINST THE UNITED STATES.
YOUR CLAIM CONTAINS NO REFERENCE TO A LEGAL PRINCIPLE OR PRECEDENT
WHICH WOULD INDICATE THAT THE GOVERNMENT, UNDER THE FACTS AND
CIRCUMSTANCES IN THIS CASE, IS LEGALLY LIABLE FOR PAYMENT OF SUCH CLAIM,
AND OUR RESEARCH OF LEGAL AUTHORITIES LEADS US TO THE CONCLUSION THAT NO
SUCH LIABILITY DOES EXIST. IN THIS CONNECTION, SEE PERKINS V. LUKENS
STEEL CO., 310 U.S. 113, HOLDING THAT THE ADVERTISING STATUTES ARE FOR
THE BENEFIT AND PROTECTION OF THE GOVERNMENT AND CONFER NO ENFORCEABLE
RIGHTS ON BIDDERS; ROBERT HAWTHORNE, INC. V. U.S. DEPARTMENT OF THE
INTERIOR, 160 F.SUPP. 417, STATING A SIMILAR RULE WITH RESPECT TO
AGENCY PROCUREMENT REGULATIONS; AND HEYER PRODUCTS COMPANY, INC. V. THE
UNITED STATES, 140 F.SUPP. 409, HOLDING THAT AN AWARD TO A HIGHER BIDDER
DOES NOT ENTITLE THE LOW BIDDER TO RECOVER THE PROFITS WHICH COULD
REASONABLY HAVE BEEN ANTICIPATED IF THE CONTRACT HAD BEEN AWARDED TO THE
LOW BIDDER.
WHILE THERE CAN BE NO DOUBT THAT THE PER PASSENGER BID PRICE
SUBMITTED BY YOUR COMPANY ON ITEM 7 WAS BASED UPON TRANSPORTING A
GREATER NUMBER OF PASSENGERS THAN CAN BE ANTICIPATED UNDER THE CONTRACT
AWARDED TO YOU, OUR RECORDS INDICATE THAT DURING THE ENTIRE PERIOD OF
PERFORMANCE BY COASTAL YOUR COMPANY INSISTED THAT THE AWARD TO COASTAL
SHOULD BE CANCELLED AND A CONTRACT FOR THE REMAINING SERVICES SHOULD BE
AWARDED TO YOU AT THE PER PASSENGER PRICE SET OUT IN YOUR BID. WHETHER
SUCH PRICE WOULD HAVE BEEN GREATER IF IT HAD BEEN SUBMITTED ON THE
REDUCED NUMBER OF PASSENGERS CONTEMPLATED BY THE CONTRACT EVENTUALLY
AWARDED TO YOUR COMPANY WOULD APPEAR TO BE IMMATERIAL. UPON
CANCELLATION OF THE AWARD TO COASTAL THERE WAS NO OBLIGATION ON THE PART
OF THE CONTRACTING OFFICER TO AWARD A CONTRACT TO YOUR COMPANY AND,
OTHER THAN THE FACT THAT YOUR INSISTENCE THAT THE AWARD TO COASTAL BE
CANCELLED AND A CONTRACT FOR THE REMAINING SERVICES BE AWARDED TO YOUR
COMPANY OPERATED AS A CONTINUING OFFER TO PERFORM THE REMAINING SERVICES
AT THE PER PASSENGER PRICE STATED IN YOUR BID, THERE WOULD APPEAR TO
HAVE BEEN NO LEGAL BASIS UPON WHICH AN AWARD COULD HAVE BEEN MADE TO
YOUR COMPANY, OR UPON WHICH YOUR COMPANY COULD HAVE BEEN BOUND BY SUCH
AWARD TO PERFORM THE REMAINING SERVICES.
AS INDICATED BY THE MEYER CASE CITED ABOVE, NO LIABILITY ON THE PART
OF THE GOVERNMENT FOR LOSS OF ANTICIPATED PROFITS BY YOUR COMPANY WOULD
HAVE ARISEN IF, UPON CANCELLATION OF THE AWARD TO COASTAL, THE
DEPARTMENT OF THE AIR FORCE HAD DECIDED TO EITHER READVERTISE THE ITEM 7
REQUIREMENTS OR TO COMPLETELY ABANDON PROCUREMENT OF THE REMAINING
SERVICES FROM COMMERCIAL CARRIERS. WE SEE NO SOUND BASIS FOR CONTENDING
THAT SUCH LIABILITY WOULD ARISE SOLELY AS A RESULT OF CONTRACTING WITH
YOUR COMPANY TO PERFORM THE REMAINING SERVICES. IT IS THEREFORE OUR
OPINION THAT THE EXTENT OF THE GOVERNMENT'S LIABILITY TO YOUR COMPANY IS
DEFINED BY, AND LIMITED TO, PAYMENT AT THE RATE STATED IN YOUR CONTRACT
FOR SUCH SERVICES AS MAY ACTUALLY BE RENDERED THEREUNDER. ACCORDINGLY,
PAYMENT OF YOUR CLAIM MUST BE DENIED.
CONCERNING YOUR REQUEST THAT THE CLAIM BE TRANSMITTED TO THE CONGRESS
FOR CONSIDERATION UNDER 31 U.S.C. 236, IT SHOULD BE NOTED THAT THIS
STATUTE PROVIDES FOR SUCH ACTION ONLY WHERE WE BELIEVE THE CLAIM
CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING
OF THE CONSIDERATION OF THE CONGRESS. WE DO NOT CONSIDER YOUR CLAIM TO
CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD JUSTIFY THIS
OFFICE IN RECOMMENDING PRIVATE RELIEF LEGISLATION. IN VIEW THEREOF,
YOUR REQUEST THAT THE CLAIM BE TRANSMITTED TO THE CONGRESS UNDER THE
PROVISIONS OF 31 U.S.C. 236 MUST ALSO BE DENIED.
B-138452, AUG. 13, 1959
TO THE SECRETARY OF THE AIR FORCE:
REFERENCE IS MADE TO YOUR LETTER OF JULY 23, 1959, FORWARDING A LIST
CONTAINING THE NAMES OF 14 PERSONS WHO ARE MEMBERS OF THE AIR FORCE
RESERVE OR THE AIR NATIONAL GUARD, WHO ARE OVER 60 YEARS OF AGE, AND WHO
HAVE BEEN RETAINED IN AN ACTIVE RESERVE STATUS SUBSEQUENT TO QUALIFYING
FOR RETIRED PAY UNDER 10 U.S.C. 1331. THE LETTER--- ASSIGNED SUBMISSION
NO. SS-AF 424, BY THE DEPARTMENT OF DEFENSE PAY AND ALLOWANCE
COMMITTEE-- CONTAINS YOUR DETERMINATION THAT THE INDIVIDUALS LISTED ARE
CONSIDERED TO HAVE BEEN RETAINED IN AN ACTIVE RESERVE STATUS PURSUANT TO
LAW AFTER THE DATE THEY QUALIFIED FOR TITLE III RETIRED PAY (THAT IS,
RETIRED PAY AUTHORIZED BY TITLE III OF THE ACT OF JUNE 29, 1948, 62
STAT. 1087, WHICH WAS SUPERSEDED BY CHAPTER 67 AND OTHER PROVISIONS OF
TITLE 10, U.S. CODE).
IN OUR DECISION OF APRIL 1, 1959, B-138452, 38 COMP. GEN. 647, IT WAS
STATED THAT IN ORDER FOR A MEMBER TO QUALIFY FOR INCREASED RETIRED PAY
BENEFITS UNDER 10 U.S.C. 676, HIS RETENTION ON ACTIVE DUTY OR IN SERVICE
IN A RESERVE COMPONENT MUST BE DIRECTED "BY ORDER OF THE SECRETARY
CONCERNED.' WE INDICATED THAT THE AUTHORITY VESTED IN THE SECRETARIES
CONCERNED WAS INTENDED TO BE USED SPARINGLY AND DISCRIMINATINGLY, AND
THAT UNLESS A MEMBER WAS "RETAINED" UNDER AN ORDER, INSTRUCTION OR
REGULATION ISSUED BY THE APPROPRIATE SECRETARY, SERVICE PERFORMED BY THE
MEMBER AFTER BECOMING QUALIFIED FOR RETIREMENT PAY MAY NOT BE COUNTED TO
INCREASE THE RETIREMENT PAY BENEFITS TO WHICH HE WOULD BE ENTITLED ON
THE BASIS OF HIS SERVICE AND GRADE ON HIS SIXTIETH BIRTHDAY.
YOUR PRESENT LETTER PRESENTS THE QUESTION WHETHER THE DETERMINATION
MADE THEREIN MAY BE ACCEPTED AS MEETING THE "ORDER" REQUIREMENTS OF 10
U.S.C. 676 IN THE CASES OF THE PERSONS NAMED IN THE LIST TO WHICH SUCH
DETERMINATION APPLIES.
AFTER CAREFUL CONSIDERATION OF THE VARIOUS FACTORS INVOLVED, AN
AFFIRMATIVE ANSWER TO SUCH QUESTION APPEARS WARRANTED AND YOU ARE
ADVISED THAT THE MEMBER LISTED WILL BE CONSIDERED AS RETAINED FOR
SERVICE IN A RESERVE COMPONENT BY YOUR ORDER, AFTER QUALIFYING FOR
RETIRED PAY, AND WILL BE CONSIDERED AS ENTITLED TO THE BENEFITS WHICH
ACCRUE TO ELIGIBLE MEMBERS UNDER 10 U.S.C. 676, OR SECTION 203 (E) OF
THE ACT OF JUNE 29, 1948, 62 STAT. 1088, FROM WHICH THE CODE PROVISION
WAS DERIVED.
B-138622, AUG. 13, 1959
TO NAVAJO FREIGHT LINES, INC. :
REFERENCE IS MADE TO YOUR LETTER OF JUNE 16, 1959, REQUESTING REVIEW
OF THE AUDIT ACTION TAKEN ON YOUR BILL NO. 277-4236 FOR TRANSPORTATION
CHARGES ON SHIPMENTS MOVING FROM SAVANNA, OKLAHOMA, TO HAWTHORNE,
NEVADA, IN MARCH 1956.
YOU BILLED ORIGINALLY AND COLLECTED CHARGES COMPUTED AT A RATE OF
$3.43 PER 100 POUNDS, AS PROVIDED IN ITEM 600 ON 1ST REVISED PAGE 78-B,
EFFECTIVE NOVEMBER 28, 1955, OF U.S. GOVERNMENT QUOTATION NO. 43-D,
ISSUED BY THE ROCKY MOUNTAIN MOTOR TARIFF BUREAU, INC. YOUR
SUPPLEMENTAL BILL NO. 277-4236-A WAS PREDICATED UPON A RATE OF $3.93 PER
100 POUNDS, AS PROVIDED IN ITEM 600 ON 4TH REVISED PAGE 78-B OF THE SAID
QUOTATION, ISSUED APRIL 20, 1956, AND STATED THEREON TO BE EFFECTIVE
NOVEMBER 28, 1955. THE LATTER BILL WAS PAID ON VOUCHER NO. 522005,
JUNE 1956 ACCOUNT OF M. C. DODSON. THIS RETROACTIVE QUOTATION
AMENDMENT, MADE "TO CORRECT PUBLICATION ERROR," APPARENTLY WAS INTENDED
TO APPLY A $3.93 RATE FOR THE PERIOD FROM NOVEMBER 28, 1955, TO MARCH
19, 1956, WHILE THE 1ST AND 2ND REVISED PAGES 78-B WERE IN EFFECT. IN
THE SUBSEQUENT AUDIT OF THE PAYMENTS MADE INCIDENT TO YOUR BILLS NOS.
277-4236 AND 277-4236-A, WE DETERMINED THAT YOU WERE ENTITLED TO THE
RATE OF $3.43 PER 100 POUNDS, AUTHORIZED IN ITEM 600 ON 2ND REVISED PAGE
78-B OF THE QUOTATION IN QUESTION, ISSUED DECEMBER 27, 1955, AND
EFFECTIVE THE SAME DAY, AND WE ISSUED A NOTICE OF OVERPAYMENT, FORM NO.
1003, IN THE AMOUNT OF $909.40 COMPUTED ON THAT BASIS.
ROCKY MOUNTAIN MOTOR TARIFF BUREAU, INC., U.S. GOVERNMENT QUOTATION
NO. 43-D, WHICH WAS VOLUNTARILY PROMULGATED PURSUANT TO SECTION 22 OF
THE INTERSTATE COMMERCE ACT, 49 U.S.C.A. 22, CONSISTS OF A SERIES OF
CONTINUING UNILATERAL OFFERS BY ITS PARTICIPANTS TO TRANSPORT FREIGHT
FOR THE UNITED STATES, ON AND AFTER SPECIFIED DATES, AT RATES AND
CHARGES NAMED THEREIN. ITEM 600 ON 2ND REVISED PAGE 78-B, OFFERED, ON
AND AFTER DECEMBER 27, 1955, A RATE OF $3.43 PER 100 POUNDS, SUBJECT TO
30,000 POUNDS VOLUME MINIMUM WEIGHTS, FOR THE CARRIAGE OF AMMUNITION
AND/OR EXPLOSIVES AND/OR FIREWORKS, BETWEEN THE NAVAL AMMUNITION DEPOT,
MCALESTER (SAVANNA, HAYWOOD), OKLAHOMA, AND THE NAVAL AMMUNITION DEPOT,
HAWTHORNE, NEVADA. THE GOVERNMENT'S TENDER AT MCALESTER (SAVANNA),
OKLAHOMA, ON MARCH 13, 14 AND 16, 1956, OF SIX SHIPMENTS OF AMMUNITION
FOR CANNON WITH EXPLOSIVE PROJECTILES--- WEIGHING IN EXCESS OF 30,000
POUNDS EACH--- FOR TRANSPORTATION TO HAWTHORNE, NEVADA, OPERATED AS
ACCEPTANCE OF THIS OFFER. THE CARRIER'S UNDERTAKING, PURSUANT TO THE
TERMS OF THE BILL OF LADING CONTRACT, WAS FULLY EXECUTED WHEN THE
SHIPMENTS WERE DELIVERED AT HAWTHORNE ON MARCH 19, 20 AND 27, 1956, AT
WHICH TIME YOU WERE ENTITLED TO, CLAIMED, AND DID COLLECT, CHARGES IN
ACCORDANCE WITH THE OFFER HELD OUT IN ITEM 600 ON 2ND REVISED PAGE 78-B,
EFFECTIVE DECEMBER 27, 1955.
IT IS A FUNDAMENTAL PRINCIPLE OF CONTRACT LAW THAT WHEN A BIDDER HAS
MADE A MISTAKE IN THE SUBMISSION OF A BID, AND THE BID HAS BEEN
ACCEPTED, HE MUST BEAR THE CONSEQUENCES THEREOF, UNLESS THE MISTAKE WAS
MUTUAL OR THE ERROR WAS SO APPARENT THAT IT MUST BE PRESUMED THE
CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE
THEREOF. SEE ELLICOTT MACHINE COMPANY V. UNITED STATES, 44 C.CLS. 127;
AMERICAN WATER SOFTENER COMPANY V. UNITED STATES, 50 ID. 209; UNITED
STATES V. CONTI; 119 F.2D 652; 6 COMP. GEN. 526; 8 ID. 362; 15 ID.
1049; 18 ID. 942; 20 ID. 652; 23 ID. 596, 598. IT IS EQUALLY WELL
ESTABLISHED THAT MUTUAL MISTAKE--- NOT UNILATERAL--- AFFORDS THE ONLY
LEGAL JUSTIFICATION FOR THE MODIFICATION OR REVISION OF AN OTHERWISE
VALID CONTRACT. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS.
249, 259; SELIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507; 29
COMP. GEN. 323, 324. NO EVIDENCE OF MUTUAL MISTAKE HAS BEEN PRESENTED
IN THIS INSTANCE.
WHILE THERE MAY HAVE BEEN CIRCUMSTANCES WHICH YOU DEEM SUFFICIENT TO
JUSTIFY THE RETROACTIVE EFFECTIVE DATE, WE MUST NEVERTHELESS ADHERE TO
THE RULE THAT GOVERNMENT OFFICERS HAVE NO AUTHORITY TO CHANGE OR MODIFY
EXISTING GOVERNMENT CONTRACTS SO AS TO INCREASE THE GOVERNMENT'S
LIABILITY WITHOUT A CORRESPONDING INCREASED BENEFIT TO THE UNITED
STATES. SEE VULCANITE CEMENT CO. V. UNITED STATES, 74 C.CLS. 692, 705;
J. J. PRESIS AND CO. V. UNITED STATES, 58 ID. 81; YALE AND TOWNE MFG.
CO. V. UNITED STATES, 67 ID. 618. THIS BEING TRUE, WE CANNOT AUTHORIZE
GIVING EFFECT TO THE INCREASED RATE IN ITEM 600 ON 4TH REVISED PAGE 78-B
PRIOR TO APRIL 20, 1956, THE DATE OF ISSUE.
ACCORDINGLY, THE CHARGES COLLECTED ON YOUR SUPPLEMENTAL BILL NO.
277-4236-A REPRESENT AN ERRONEOUS PAYMENT IN THAT THEY EXCEED CHARGES ON
THE SHIPMENTS INVOLVED COMPUTED ON THE BASIS OF THE RATE OF $3.43 PER
100 POUNDS FOUND TO BE APPLICABLE UNDER THE SAID ITEM 600 ON 2ND REVISED
PAGE 78-B. THE OVERPAYMENT OF $909.40 ON THIS BILL SHOULD BE REFUNDED
PROMPTLY.
B-138651, AUG. 13, 1959
TO MR. ROBERT B. SELIG:
ON JULY 2, 1959, YOU REQUESTED REVIEW OF OUR SETTLEMENT OF MARCH 18,
1959, DISALLOWING YOUR CLAIM FOR ADDITIONAL MILEAGE IN CONNECTION WITH
YOUR TEMPORARY DUTY TRAVEL FROM YOUR RESIDENCE AT NEW BEDFORD,
MASSACHUSETTS, TO YOUR TEMPORARY DUTY STATION AT HUDSON, MASSACHUSETTS.
YOU TRAVELED BY PRIVATELY OWNED AUTOMOBILE BETWEEN NEW BEDFORD AND
HUDSON WITHOUT STOPPING AT YOUR HEADQUARTERS IN BOSTON, MASSACHUSETTS,
ON FREQUENT OCCASIONS BETWEEN JANUARY 2, 1958, AND MAY
6, 1958, UNDER TEMPORARY DUTY ORDERS AUTHORIZING THIS TRAVEL ON A
DAILY OR INTERMITTENT BASIS WITH MILEAGE AT ?08 PER MILE "FROM RESIDENCE
TO TDY STATION.' UPON SUBMISSION OF A TRAVEL VOUCHER
YOU WERE ADMINISTRATIVELY ALLOWED MILEAGE BETWEEN BOSTON AND HUDSON,
A DISTANCE OF 30 MILES RATHER THAN BETWEEN NEW BEDFORD AND HUDSON, A
DISTANCE OF APPROXIMATELY 84 MILES. YOU THEN SUBMITTED A CLAIM IN THE
AMOUNT OF $622.08 TO THIS OFFICE FOR THE DIFFERENCE BETWEEN THE MILEAGE
CLAIMED AND THAT ALLOWED FOR A TOTAL OF 72 ROUND TRIPS. OUR
DISALLOWANCE WAS BASED ON ARMY DEPARTMENT, CIVILIAN PERSONNEL
REGULATIONS T3.1-1 AND T3.3-4D, DATED MARCH 20, 1957. YOU APPEAL THIS
SETTLEMENT NOTWITHSTANDING THE EXACT WORDING OF THOSE REGULATIONS WHICH,
IN PROVIDING FOR THE SITUATION HERE IN QUESTION, LIMIT REIMBURSEMENT TO
MILEAGE BETWEEN HEADQUARTERS AND TEMPORARY DUTY
STATION. AS A BASIS FOR THIS APPEAL YOU USE A COMBINATION OF TWO
REGULATIONS, FIRST, CIVILIAN PERSONNEL REGULATION T3.2-5, DATED MARCH
20, 1957, WHICH DEFINES LOCAL TRAVEL IN SUCH A WAY THAT IT WOULD BE
POSSIBLE TO HOLD THAT THE TRAVEL YOU PERFORMED WAS LOCAL TRAVEL, AND
SECOND, AR 55-32 WHICH AUTHORIZES REIMBURSEMENT FOR LOCAL TRAVEL ?08 PER
MILE, BASED ON SPEEDOMETER READING.
PARAGRAPHS 1 AND 8 OF AR 55-34 ARE AS FOLLOWS:
"1. PURPOSE. THESE REGULATIONS PRESCRIBE THE POLICIES AND
PROCEDURES WHEREBY MILITARY OR CIVILIAN PERSONNEL OF THE ARMY
ESTABLISHMENT MAY BE AUTHORIZED PAYMENT OR REIMBURSEMENT OF EXPENSES FOR
THE PERFORMANCE OF LOCAL TRAVEL (AS OPPOSED TO TDY DIRECTED TRAVEL)
NECESSARY IN CONDUCTING OFFICIAL GOVERNMENT BUSINESS WITHIN AND AROUND
THEIR DESIGNATED DUTY STATIONS.
"8. TDY OR PCS TRAVEL. THESE REGULATIONS ARE IN NO WAY APPLICABLE
TO THE USE OF COMMERCIAL TAXICABS, BUSES, STREETCARS, TRAINS, AND
PRIVATELY OWNED VEHICLES, OR FOR FERRY, BRIDGE, AND SIMILAR FARES AND
TOLLS IN CONNECTION WITH PCS AND/OR TDY TRAVEL.'
SINCE YOUR TRAVEL WAS PERFORMED PURSUANT TO TEMPORARY DUTY ORDERS,
REIMBURSEMENT UNDER AR 55-34 WOULD SEEM TO BE PRECLUDED.
FURTHERMORE, IT IS A SETTLED PRINCIPLE IN THE INTERPRETATION OF
REGULATIONS THAT A SPECIFIED PROVISION WILL PREVAIL OVER A MORE GENERAL
PROVISION. SINCE CPR T3.3-4D REGULATES THE SITUATION UNDER WHICH YOUR
CLAIM ARISES IT MUST BE APPLIED RATHER THAN THE MORE GENERAL PROVISION
OF THE REGULATIONS YOU CITE.
B-139610, AUG. 13, 1959
TO ASSOCIATED AERO SCIENCE LABORATORIES, INC. :
REFERENCE IS MADE TO YOUR LETTER OF MAY 13, 1959, PROTESTING AGAINST
THE AWARD OF CONTRACT NO. N123 (61756) 19425A (PMR), BY THE NAVY
PURCHASING OFFICE, LOS ANGELES, CALIFORNIA, TO LAND-AIR, INC., CHICAGO,
ILLINOIS, FOR FURNISHING PERSONNEL AND MATERIALS TO ACCOMPLISH DATA
REDUCTION, MATHEMATICAL AND ENGINEERING SERVICES. YOU REQUEST THAT THE
ABOVE CONTRACT BE SET ASIDE AND AWARD MADE TO YOU SINCE YOU SUBMITTED
THE LOWEST BID IN RESPONSE TO THE INVOLVED INVITATION.
AS YOU WERE ADVISED IN LETTER OF MAY 20, 1959, WE REFERRED THE MATTER
OF YOUR PROTEST TO THE SECRETARY OF THE NAVY WITH A REQUEST FOR A
COMPLETE REPORT THEREON, AND IN RESPONSE TO SUCH REQUEST WE RECEIVED A
REPORT DATED JULY 23, 1959, WITH SUPPORTING DOCUMENTS, FROM THE
ASSISTANT SECRETARY OF THE NAVY.
IN THAT REPORT IT IS STATED THAT THE ASSISTANT SECRETARY OF THE NAVY
GRANTED AUTHORITY TO NEGOTIATE A CONTRACT PURSUANT TO 10 U.S.C. 2304
(A) (11) AND A QUESTIONNAIRE WAS SENT TO APPROXIMATELY 100 FIRMS WHICH
MIGHT BE INTERESTED IN PROVIDING THE SERVICES. SEVENTEEN FIRMS
RESPONDED TO THE QUESTIONNAIRE AND, AFTER SCREENING FOR GENERAL
EXPERIENCE BY THE NAVY PURCHASING OFFICE, LOS ANGELES, AND TECHNICAL
PERSONNEL OF THE PACIFIC MISSILE RANGE, NINE FIRMS WERE SELECTED AS THE
BEST SOURCES FROM WHICH TO SOLICIT PROPOSALS. NO EFFORT WAS MADE AT
THAT TIME TO SURVEY IN DETAIL THEIR QUALIFICATIONS IN THE THREE SERVICE
AREAS TO BE PERFORMED; NAMELY, DATA REDUCTION, MATHEMATICAL SERVICES,
AND ENGINEERING SERVICES. THE EXCLUSION OF THE OTHER EIGHT FIRMS WAS
BASED PRIMARILY ON THE FACT THAT THEY LACKED EXPERIENCE AND PERSONNEL
REQUIRED FOR THE TYPE OF SERVICES SPECIFIED. THE REQUEST FOR PROPOSALS
WAS ISSUED ON DECEMBER 16, 1958, AND PROPOSALS WERE RECEIVED FROM EIGHT
OF THE NINE PROSPECTIVE CONTRACTORS SOLICITED.
UPON ANALYSIS OF THE PROPOSAL SUBMITTED BY ASSOCIATED AERO SCIENCE
LABORATORIES, INC., THE TECHNICAL EVALUATORS FOUND THAT THE PROPOSAL
FAILED IN SEVERAL RESPECTS ADEQUATELY TO MEET THE REQUIREMENTS SPELLED
OUT IN THE REQUEST FOR PROPOSALS AND THE SPECIFICATIONS. SPECIFICALLY,
IT IS REPORTED THAT WHILE IT WAS DETERMINED THAT THE EXPERIENCE AND
BACKGROUND OF YOUR FIRM IN THE FIELD OF BASIC DATA REDUCTION WORK WAS
ACCEPTABLE, THE PROPOSAL WAS UNACCEPTABLE IN THE SIZE OF THE TEAM
PROPOSED TO BE FURNISHED TO CARRY THE ESTIMATED WORKLOAD IN THE AREA.
THE GOVERNMENT RECORDS INDICATED THAT YOUR FIRM UTILIZED 96 PEOPLE TO DO
THE BASIC REDUCTION WORK FOR THE ACTIVITY IN 1953, WHEREAS UNDER THE
INSTANT PROCUREMENT YOU PROPOSED TO USE 47 PEOPLE TO ACCOMPLISH A
GREATER VOLUME OF MORE COMPLEX DATA REDUCTION WORK DURING THE FIRST YEAR
OF THE CONTRACT. IT IS POINTED OUT THAT IN SPITE OF THE PROGRESS MADE
SINCE 1953 IN PROCESSING DATA REDUCTION BY IMPROVED METHODS AND
MACHINES, THE VOLUME AND COMPLEXITY OF THE WORK HAD INCREASED SO GREATLY
SINCE 1953 THAT AT THE TIME OF EVALUATION OF THE PROPOSALS, THE BASIC
DATA REDUCTION WORK AT THE ACTIVITY WAS BEING ACCOMPLISHED BY THE
INCUMBENT CONTRACTOR WITH A COMPLEMENT OF APPROXIMATELY 100 PEOPLE.
COMPARISON OF YOUR FIRM'S PROPOSAL WITH THOSE OF THE THREE COMPANIES
DETERMINED TO BE MOST TECHNICALLY ACCEPTABLE; NAMELY, LAND-AIR, RCA,
AND TELECOMPUTING, DISCLOSED THAT YOU PROPOSED TO ACCOMPLISH ALL THE
WORK ESTIMATED TO BE REQUIRED DURING THE FIRST YEAR WITH A STAFF OF 63
PEOPLE WHEREAS THE CITED COMPANIES CONSIDERED 113, 116, AND 153,
RESPECTIVELY, AS THE MINIMUM STAFFING NECESSARY. THE GOVERNMENT HAD
ESTIMATED THAT 120 PEOPLE WOULD BE REQUIRED TO MEET THE FIRST YEAR'S
ANTICIPATED WORKLOAD IN ALL CATEGORIES. FURTHERMORE, YOUR PROPOSAL WAS
FOUND TO BE INADEQUATE IN REGARD TO THE NUMBER OF QUALIFIED KEY
PERSONNEL IN THE HIGHER LEVEL MATHEMATICAL WORK CATEGORIES. FOR
INSTANCE, YOU PROPOSED TO USE ONE PROFESSIONAL MATHEMATICIAN, TWO
COMPUTER PROGRAMMERS, AND ONE MATHEMATICAL AIDE WHEREAS LAND-AIR, RCA,
AND TELECOMPUTING PROPOSED TO USE 8, 14, AND 8; 22, 8, AND 15; AND 4,
23, AND 27, RESPECTIVELY.
ON FEBRUARY 6, 1959, THE PACIFIC MISSILE RANGE FORWARDED TO THE NAVY
PURCHASING OFFICE ITS TECHNICAL RECOMMENDATION FOR AWARD TO LAND-AIR,
INC., OF A CONTRACT FOR THE REQUIRED SERVICES. THE TECHNICAL
RECOMMENDATION WAS DOCUMENTED BY AN ENUMERATION OF THE CRITERIA USED IN
MAKING THE TECHNICAL EVALUATION. THE PURCHASING OFFICE AFTER CAREFUL
STUDY OF THE TECHNICAL RECOMMENDATION CONCLUDED THAT YOUR PROPOSAL WAS
INADEQUATE FROM THE POINT OF VIEW OF LABOR UTILIZATION, ORGANIZATIONAL
STRUCTURE AND COMPOSITION, AND THE QUALIFICATIONS OF LABOR
CLASSIFICATIONS ESPECIALLY IN KEY POSITIONS. ON THE BASIS OF THIS
REVIEW THE NAVY PURCHASING OFFICE REVIEW BOARD APPROVED THE
RECOMMENDATION OF AWARD TO LAND-AIR.
THE SUBJECT CONTRACT WAS NEGOTIATED PURSUANT TO 10 U.S.C. 2304 (A)
(11) WHICH AUTHORIZES THE HEAD OF THE AGENCY TO NEGOTIATE WITHOUT FORMAL
ADVERTISING A PURCHASE OR CONTRACT, IF THE PURCHASE OR CONTRACT IS FOR
PROPERTY OR SERVICES THAT HE DETERMINES TO BE FOR EXPERIMENTAL,
DEVELOPMENT, OR RESEARCH WORK, OR FOR MAKING OR FURNISHING PROPERTY FOR
EXPERIMENT, TENT, DEVELOPMENT, OR RESEARCH. WHEN THE AUTHORITY TO
NEGOTIATE APPLIES AND IS USED THE TERMS AND CONDITIONS UPON WHICH
PROPOSALS ARE REQUESTED AND EVALUATED ARE MATTERS PRIMARILY FOR
DETERMINATION BY THE AGENCY, AND THE RULES OF FORMALLY ADVERTISED
COMPETITIVE BIDDING ARE NOT APPLICABLE. UNDER THE AUTHORITY TO
NEGOTIATE, THE AUTHORIZED CONTRACTING OFFICIALS LEGALLY MAY TAKE INTO
CONSIDERATION NOT ONLY PRICE BUT ALL FACTORS AFFECTING THE NEEDS AND
INTERESTS OF THE GOVERNMENT.
MOREOVER, THE DRAFTING OF SPECIFICATIONS WHICH WILL MEET THE MINIMUM
NEEDS OF THE GOVERNMENT AND THE FACTUAL DETERMINATION AS TO WHETHER THE
SERVICES AND MATERIALS OFFERED COMPLY WITH THOSE NEEDS AND
SPECIFICATIONS ARE PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE
OFFICE. UNDER THE
FACTS OF RECORD AND APPLICABLE LAW WE FEEL THAT THE EVALUATION BY TH
DEPARTMENT OF THE NAVY CONSTITUTES A BONA FIDE DETERMINATION ADEQUATELY
SUPPORTED BY SUBSTANTIAL EVIDENCE.
IN VIEW THEREOF, IT MUST BE CONCLUDED THAT THERE IS NO LEGAL BASIS
FOR CANCELING THE ABOVE AGREEMENT AND DIRECTING THE AWARD OF A SIMILAR
CONTRACT TO YOUR CORPORATION.
B-139853, AUG. 13, 1959
TO VALLEY BOLT CORPORATION:
FURTHER REFERENCE IS MADE TO YOUR COMMUNICATION DATED JUNE 1, 1959,
WITH ENCLOSURES, TO THE COMMANDING OFFICER, MOBILE AIR MATERIAL AREA,
BROOKLEY AIR FORCE BASE, MOBILE, ALABAMA, PROTESTING THE ACTION TAKEN BY
THE AIR FORCE BASE WITH RESPECT TO CERTAIN INVITATIONS FOR BIDS WHICH
WERE ISSUED BY THE BASE DURING APRIL AND MAY 1959. A COPY OF YOUR
COMMUNICATION WAS FORWARDED TO OUR OFFICE FOR A DETERMINATION AS TO THE
PROPRIETY OF THE ACTION TAKEN.
INVITATION NO. 01-601-59-1145, AS AMENDED, WAS ISSUED ON APRIL 3,
1959, BY HEADQUARTERS, MOBILE AIR MATERIAL AREA, BROOKLEY AIR FORCE
BASE, FOR FURNISHING 46 ITEMS OF VARIOUS SIZES, QUANTITIES, ETC., OF
INTERNAL WRENCHING BOLTS FOR SHIPMENT TO THE AIR FORCE BASE. ALSO,
INVITATION NO. 01-601-59-1246 WAS ISSUED ON APRIL 16, 1959, BY THE BASE
COVERING 12 ITEMS OF SUBSTANTIALLY THE SAME TYPE OF BOLTS FOR SHIPMENT
TO THE SAME DESTINATION. BEFORE AWARDS WERE MADE ON ITEMS NOS. 1
THROUGH 26, 40, 42, 43, 45, AND 46 UNDER INVITATION NO. 1145, AND ITEMS
NOS. 1 THROUGH 11 AND 13 UNDER INVITATION NO. 1246, ALL OF WHICH ITEMS
WERE REQUIRED TO COMPLY WITH MILITARY SPECIFICATION NO. MIL-B-7838A, A
NEW PRICE LIST OF THE VOI SHAN MANUFACTURING COMPANY, EFFECTIVE MAY 8,
1959, WAS RECEIVED BY THE BROOKLEY AIR FORCE BASE. THE PRICE LIST
APPARENTLY COVERED INTERNAL WRENCHING BOLTS OF ALL DIAMETERS THROUGH 5/8
INCH IN A VARIETY OF LENGTHS AND BOLTS WHICH COMPLIED WITH THE
APPLICABLE MILITARY SPECIFICATION. SINCE IT APPEARED FROM THE
EVALUATION OF THE BIDS RECEIVED THAT $141,388.89 WAS THE LOWEST TOTAL
COST AT WHICH THESE BOLTS COULD BE PROCURED UNDER INVITATIONS NOS. 1145
AND 1246, WHEREAS THE SAME BOLTS WERE LISTED IN THE NEW PRICE LIST FOR A
TOTAL PRICE OF $60,657.89, A DETERMINATION WAS MADE BY THE CONTRACTING
OFFICER OF THE BROOKLEY AIR
FORCE BASE TO READVERTISE THE REQUIREMENT, OR AT LEAST A PART
THEREOF. ON THAT BASIS, INVITATION NO. 01-601-59-1494, AS AMENDED, WAS
ISSUED ON MAY 20, 1959, BY THE AIR FORCE BASE FOR 45 ITEMS OF THE
INTERNAL WRENCHING BOLTS. AN EVALUATION OF THE BIDS RECEIVED UNDER THIS
INVITATION REVEALED THE VOI SHAN MANUFACTURING COMPANY TO BE THE
APPARENT LOW BIDDER ON ALL ITEMS EXCEPT NOS. 7, 18, 39, AND 45. THE
BROOKLEY AIR FORCE BASE REPORTS THAT THE TOTAL PRICE OF THE COMPANY FOR
THE ITEMS
BID WAS $72,295.09, WHICH WAS HIGHER THAN THE COMPANY'S NEW PRICE
LIST INDICATED IT WOULD BE BUT, AT THE SAME TIME, IT WAS $69,093.80 LESS
THAN THE APPARENT LOW BIDS RECEIVED ON INVITATIONS NOS. 1145 AND 1246.
YOU PROTEST THE READVERTISEMENT OF THIS PROCUREMENT FOR THE REASON
THAT THE ABSTRACTS OF BIDS SHOWED THAT YOU WERE THE LOW BIDDER ON THE
MAJORITY OF ITEMS SET FORTH UNDER INVITATIONS NOS. 1145 AND 1246. YOU
CONTEND THAT INVITATION NO. 1494 COVERED 41 ITEMS ORIGINALLY LISTED
UNDER INVITATIONS NOS. 1145 AND 1246 ON WHICH YOU WERE THE LOW BIDDER
AND THAT THERE WERE OMITTED FROM INVITATION NO. 1494, ONLY THE 18
ORIGINAL ITEMS ON WHICH YOU WERE NOT THE LOW BIDDER. ALSO, YOU ALLEGE
THAT NO REASONS HAVE BEEN BROUGHT TO YOUR ATTENTION AS TO WHY THE ARMED
SERVICES PROCUREMENT REGULATION WAS NOT FOLLOWED IN THIS INSTANCE BY THE
AWARDING OF A CONTRACT TO YOU AS THE LOWEST RESPONSIBLE BIDDER. YOU
REQUEST, THEREFORE, THAT THE PROCUREMENT ACTION UNDER INVITATION NO.
1494 BE DEFERRED PENDING A DETERMINATION BY OUR OFFICE AS TO THE
LEGALITY OF THE ACTION TAKEN.
THE RECORD BEFORE US SHOWS THAT BEFORE AWARDS WERE MADE IN CONNECTION
WITH INVITATIONS NOS. 1145 AND 1246 THERE WAS BROUGHT TO THE
CONTRACTING OFFICER'S ATTENTION ADDITIONAL INFORMATION IN THE FORM OF A
NEW PRICE LIST OF THE VOI SHAN MANUFACTURING COMPANY. THE LIST SET
FORTH NEW PRICES EFFECTIVE AS OF MAY 8, 1959, ON THE BOLTS COVERED BY
MILITARY SPECIFICATION NO. MIL-B-7838A. MOREOVER, THE BROOKLEY AIR
FORCE BASE REPORTS THAT PAST EXPERIENCE SHOWED THAT THE PRICE LIST WAS
INDICATIVE OF PRICES THAT COULD BE EXPECTED ON INVITATIONS FOR BIDS;
ALSO, THAT A SAVING OF APPROXIMATELY $72,000 REASONABLY MIGHT BE
ANTICIPATED ON THE BASIS OF SUCH PRICE LIST.
IT IS PROVIDED IN 10 U.S.C. 2305 (B) THAT "ALL BIDS MAY BE REJECTED
IF THE HEAD OF THE AGENCY DETERMINES THAT REJECTION IS IN THE PUBLIC
INTEREST.' THE HEAD OF THE AGENCY MAY, UNDER 10 U.S.C. 2311, DELEGATE
THE AUTHORITY TO MAKE SUCH DETERMINATION TO ANY OTHER OFFICER OR
OFFICIAL OF THAT AGENCY. THAT AUTHORITY HAS BEEN DELEGATED TO THE
CONTRACTING OFFICER BY THE TERMS OF PARAGRAPH 2-403 OF THE ARMED
SERVICES PROCUREMENT REGULATION. THEREFORE, IT APPEARS THAT THE
CONTRACTING OFFICER ACTED WITHIN HIS AUTHORITY IN REJECTING ALL BIDS AND
READVERTISING. THE AUTHORITY VESTED IN THE HEAD OF THE AGENCY, AND
DELEGATED TO THE CONTRACTING OFFICER, IS EXTREMELY BROAD AND WE HAVE
CONSISTENTLY HELD THAT A DETERMINATION PURSUANT THERETO IS NOT SUBJECT
TO REVIEW BY THIS OFFICE EXCEPT POSSIBLY UPON A CLEAR SHOWING OF FRAUD
OR BAD FAITH AMOUNTING TO FRAUD.
OF COURSE, WE ARE AWARE THAT THE REJECTION OF BIDS AFTER THEY ARE
OPENED AND EACH BIDDER HAS LEARNED HIS COMPETITOR'S PRICE IS A SERIOUS
MATTER AND SHOULD NOT BE DONE EXCEPT FOR COGENT REASONS. NEVERTHELESS,
WE HAVE RECOGNIZED THAT SINCE CONTRACTING OFFICERS ARE AGENTS OF THE
GOVERNMENT REQUIRED TO WORK IN THE BEST INTERESTS OF THE GOVERNMENT,
WHEN READVERTISING MAY RESULT IN SUBSTANTIAL SAVINGS TO THE GOVERNMENT
SUCH ACTION, WHEN PROPERLY AUTHORIZED, SHOULD BE CONSIDERED. 36 COMP.
GEN. 364.
IT IS THEREFORE CLEAR THAT THE CONTRACTING OFFICER'S REJECTION OF ALL
BIDS WAS WITHIN HIS AUTHORITY AND IN VIEW OF THE FACT THAT SUBSTANTIALLY
LOWER PRICES WERE OBTAINED UPON READVERTISEMENT, SUCH ACTION WAS IN THE
BEST INTERESTS OF THE GOVERNMENT. ACCORDINGLY, WE MUST CONCLUDE THAT
HIS ACTION IN THAT REGARD IS NOT SUBJECT TO LEGAL OBJECTION.
WITH RESPECT TO YOUR CONTENTIONS THAT 41 ITEMS WERE READVERTISED ON
WHICH YOU HAD SUBMITTED THE LOW BIDS AND THAT THERE WERE OMITTED FROM
THE READVERTISEMENT ONLY THE 18 ITEMS ON WHICH YOU WERE NOT THE LOW
BIDDER, THE CONTRACTING OFFICER REPORTS THAT THE ONLY ITEMS WHICH WERE
ORIGINALLY INCLUDED UNDER INVITATIONS NOS. 1145 AND 1246 THAT DID NOT
APPEAR ON INVITATION NO. 1494 WERE ORIGINAL ITEMS NOS. 27 THROUGH 39,
41, AND 44 ON INVITATION NO. 1145 AND ALL ITEMS EXCEPT ITEM NO. 12 ON
INVITATION NO. 1246. IT IS REPORTED FURTHER THAT THE SAID ITEMS, WHICH
WERE EXCLUDED FROM THE READVERTISEMENT, COVERED THE TYPE OF BOLTS
MANUFACTURED TO A SPECIFICATION OTHER THAN THE MILITARY SPECIFICATION
NO. MIL-B-7838A, AND, AS SUCH, WERE NOT INCLUDED IN THE PRICE LIST
PREVIOUSLY MENTIONED. THERE ARE 15 OF THE LATTER TYPE OF ITEMS--- 27
THROUGH 39, 41 AND 44--- UNDER INVITATION NO. 1145 WHICH WERE NOT
READVERTISED, NINE OF WHICH NOW ARE BEING CONSIDERED BY THE BROOKLEY AIR
FORCE BASE FOR AWARD TO YOU AS THE LOWEST RESPONSIBLE BIDDER. YOU DID
NOT SUBMIT A BID ON TWO OF THE OTHER ITEMS AND YOU WERE NOT THE LOW
BIDDER ON THE REMAINING FOUR. ITEM NO. 12 OF INVITATION NO. 1246 ALSO
WAS AN ITEM NOT COVERED BY MILITARY SPECIFICATION NO. MIL-B-7838A AND,
THEREFORE, WAS NOT READVERTISED BUT NOW IS BEING CONSIDERED FOR AWARD TO
THE VOI SHAN MANUFACTURING COMPANY AS THE LOWEST RESPONSIBLE BIDDER.
YOU MAY BE INFORMED THAT THE DEPARTMENT OF THE AIR FORCE ADVISES THAT
A STUDY CURRENTLY IS BEING MADE OF THE SUBMISSION, BY A NUMBER OF
BIDDERS, OF "EQUAL BIDS" WHICH APPEARS TO HAVE OCCURRED UNDER THE
SUBJECT INVITATIONS, AS WELL AS UNDER A NUMBER OF PRIOR INVITATIONS, FOR
THE PROCUREMENT OF SIMILAR MATERIALS.
B-139870, AUG. 13, 1959
TO CAPTAIN W. A. BAILEY, DISBURSING OFFICER:
UNDER DATE OF JUNE 9, 1959, THE CHIEF OF FINANCE FORWARDED YOUR
LETTER OF MAY 6, 1959, SUBMITTING SUPPLEMENTAL INACTIVE DUTY TRAINING
ARMY RESERVE PAYROLL, WITH SUPPORTING PAPERS, IN THE CASE OF SERGEANT
TERRY M. THOMPSON, ER 52 396 669, FOR ADVANCE DECISION WHETHER PAYMENT
MAY BE
MADE TO HIM FOR INACTIVE DUTY TRAINING ASSEMBLIES HE ATTENDED FOR TH
PERIOD OCTOBER 1, 11957, TO DECEMBER 31, 1957.
BY PARAGRAPH 194, SPECIAL ORDERS NO. 30, HEADQUARTERS, XX U.S. ARMY
CORPS (RESERVE), FORT HAYES, COLUMBUS, OHIO, DATED FEBRUARY 12, 1958,
SERGEANT THOMPSON WAS ORIGINALLY ASSIGNED TO THE 350TH EVACUATION
HOSPITAL DETACHMENT FROM THE 2196TH USAR CONTROL GROUP, WITH EFFECTIVE
DATE OF CHANGE OF STRENGTH ACCOUNTABILITY STATED AS FEBRUARY 27, 1958.
YOU REPORT THAT DA FORM NO. 1379 OF THE 660TH TRANSPORTATION COMPANY
INDICATES THAT SERGEANT THOMPSON WAS "ATTACHED FROM OTHER ORGANIZATION.'
UNDER THE PROVISIONS OF PARAGRAPH 207, SPECIAL ORDERS NO. 98,
HEADQUARTERS, XX, U.S. ARMY CORPS, FORT HAYES, COLUMBUS, OHIO, DATED MAY
19, 1958, THE ORDERS OF FEBRUARY 12, 1958, WERE AMENDED TO CHANGE THE
UNIT ASSIGNMENT OF THE ENLISTED MAN TO THE 660TH TRANSPORTATION COMPANY
BUT NO CHANGE WAS MADE IN THE EFFECTIVE DATE OF CHANGE OF STRENGTH
ACCOUNTABILITY. THE ORDERS OF MAY 19, 1958, WERE AMENDED BY PARAGRAPH
117, SPECIAL ORDERS NO. 145, SAME HEADQUARTERS, DATED JULY 25, 1958, SO
AS TO CHANGE THE EFFECTIVE DATE OF CHANGE OF STRENGTH ACCOUNTABILITY
FROM FEBRUARY 27, 1958, TO SEPTEMBER 12, 1957.
AN EXTRACT COPY OF DA FORM 1379 OF THE 660TH TRANSPORTATION COMPANY
FOR THE MONTHS OF OCTOBER, NOVEMBER AND DECEMBER, 1957, SHOWS THAT
SERGEANT THOMPSON ATTENDED A TOTAL OF NINE INACTIVE DUTY TRAINING
ASSEMBLIES FOR THE PERIOD. YOU EXPRESS THE VIEW THAT SPECIAL ORDERS NO.
30 (98) AND NO. 145 ARE NOT VALID INASMUCH AS "CONFIRMATION OF VERBAL
ORDERS IS NOT INCORPORATED THEREIN," AND THAT THE VALIDITY OF THE CLAIM
IS QUESTIONABLE IN VIEW OF THE RETROACTIVE CHANGE OF EDCSA DATE FROM
FEBRUARY 27, 1958, TO SEPTEMBER 12, 1957, BEING EFFECTED BY ORDERS
ISSUED ON JULY 25, 1958.
THE AVAILABLE RECORD DOES NOT SHOW WHETHER SERGEANT THOMPSON WAS
ACTING ON VERBAL ORDERS WHEN HE ATTENDED THE INACTIVE DUTY TRAINING
ASSEMBLIES WITH THE 660TH TRANSPORTATION COMPANY. NEITHER DOES IT
APPEAR THAT HE WAS ASSIGNED TO THAT COMPANY DURING THE PERIOD IN
QUESTION. DA FORM 1379 INDICATES THAT HE WAS "ATTACHED FROM OTHER
ORGANIZATION.' PRESUMABLY HE WAS OFFICIALLY ASSIGNED TO THE 2196TH USAR
CONTROL GROUP DURING THE PERIOD HE WAS ATTENDING THE TRAINING ASSEMBLIES
IN QUESTION SINCE SPECIAL ORDERS NO. 30, ORIGINALLY ASSIGNED HIM FROM
THAT CONTROL GROUP TO THE 350TH EVACUATION HOSPITAL DETACHMENT EFFECTIVE
FEBRUARY 27, 1958.
AS INDICATED ABOVE THE RECORD DOES NOT SHOW UPON WHAT AUTHORITY
SERGEANT THOMPSON ATTENDED THE INACTIVE DUTY TRAINING ASSEMBLIES WITH
THE 660TH TRANSPORTATION COMPANY. IF HE WAS ACTING UNDER VERBAL ORDERS,
IT IS CLEAR THAT SUCH ORDERS WERE NOT LATER CONFIRMED BY WRITTEN ORDERS.
SEE, IN THIS CONNECTION, PARAGRAPH 3002-2 OF THE JOINT TRAVEL
REGULATIONS. IT IS WELL SETTLED THAT RETROACTIVE ORDERS, SUCH AS
SPECIAL ORDERS NO. 145, PURPORTING TO CHANGE THE EDCSA DATE FROM
FEBRUARY 27, 1958, TO SEPTEMBER 12, 1957, ARE WITHOUT EFFECT TO EITHER
INCREASE OR DECREASE VESTED RIGHTS OF GOVERNMENT PERSONNEL. B-134395,
FEBRUARY 3, 1958; 23 COMP. GEN. 713; 24 ID. 439.
ONLY ATTENDANCE PURSUANT TO PROPER ASSIGNMENT ORDERS MAY BE
CONSIDERED ATTENDANCE FOR PAY PURPOSES.
ACCORDINGLY, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE
SUPPLEMENTAL PAYROLL WHICH, TOGETHER WITH SUPPORTING PAPERS, IS BEING
RETAINED HERE.
B-139902, AUG. 13, 1959
TO FIRST LIEUTENANT ROBERT E. ORKAND:
REFERENCE IS MADE TO YOUR LETTER OF MAY 28, 1959, REQUESTING REVIEW
OF OUR SETTLEMENT OF APRIL 24, 1959, WHICH DISALLOWED YOUR CLAIM FOR
BASIC ALLOWANCE FOR QUARTERS AS A FIRST LIEUTENANT WITHOUT DEPENDENTS
FOR THE PERIOD FEBRUARY 5, 1958, THRU MAY 30, 1958.
DEPARTMENT OF THE ARMY, PERMISSIVE TRAVEL ORDERS, DATED JANUARY 13,
1958, PERMITTED YOU TO PROCEED TO COLUMBIA UNIVERSITY, NEW YORK, NEW
YORK, FOR TEMPORARY DUTY FOR APPROXIMATELY 115 DAYS FOR THE STATED
PURPOSE OF FULFILLING REQUIREMENTS FOR A BACCALAUREATE DEGREE. THE
ORDERS EXPRESSLY PROVIDED THAT NO EXPENSE TO THE GOVERNMENT WOULD BE
INCURRED BY REASON OF THIS TEMPORARY DUTY. THE RECORD INDICATES THAT A
DA FORM 137, INSTALLATION CLEARANCE RECORD, WAS EXECUTED IN YOUR CASE
AND SIGNED BY YOU ON JANUARY 25, 1958, IN PREPARATION FOR YOUR DEPARTURE
FROM FORT ORD ON JANUARY 26TH IN ORDER TO REPORT ON FEBRUARY 5, 1958, AT
COLUMBIA UNIVERSITY. YOU HAVE PRESENTED EVIDENCE INDICATING THAT NO
GOVERNMENT QUARTERS WERE ASSIGNED TO OR OCCUPIED BY YOU WHILE AT
COLUMBIA UNIVERSITY. IT APPEARS TO BE YOUR CONTENTION THAT THE FACT
THAT YOU WERE REQUIRED TO CLEAR YOUR BACHELOR OFFICER'S QUARTERS AT FORT
ORD ENTITLES YOU TO THE BASIC ALLOWANCE FOR QUARTERS WHILE IN NEW YORK.
FURTHER, YOU STATE IN YOUR REQUEST FOR REVIEW THAT YOU ARE NOT SEEKING
THIS ALLOWANCE BECAUSE OF EXPENSE OF MAINTAINING PRIVATELY PROCURED
QUARTERS AT YOUR PERMANENT STATION, SINCE NONE WAS INCURRED, BUT AS
RECOMPENSE FOR LIKE EXPENSES INCURRED AT YOUR TEMPORARY DUTY STATION.
PARAGRAPH 2 OF EXECUTIVE ORDER NO. 10204, DATED JANUARY 15, 1951,
ISSUED PURSUANT TO THE PROVISIONS OF THE CAREER COMPENSATION ACT OF
1949, 63 STAT. 802, 813, STATES THAT EXCEPT AS OTHERWISE PROVIDED BY
STATUTE A MEMBER SHALL BE ENTITLED TO PAYMENT OF BASIC ALLOWANCE FOR
QUARTERS "IN ACCORDANCE WITH THESE AND ANY REGULATIONS PRESCRIBED
PURSUANT HERETO" DURING SUCH TIME AS THE MEMBER IS ENTITLED TO RECEIVE
BASIC PAY. PARAGRAPH 6 OF EXECUTIVE ORDER NO. 10204 AUTHORIZES THE
SECRETARIES OF THE SERVICES CONCERNED TO PRESCRIBE SUCH SUPPLEMENTARY
REGULATIONS CONSISTENT WITH THAT EXECUTIVE ORDER AS THEY MAY DEEM
NECESSARY OR DESIRABLE. ARMY REGULATIONS 37-104, PARAGRAPH 5-6A,
PROMULGATED UNDER THIS AUTHORITY PROVIDE AS FOLLOWS:
"5-6. TEMPORARY DUTY OR TRAVEL STATUS
"A. TEMPORARY DUTY. A MEMBER WITHOUT DEPENDENTS IS ENTITLED TO THE
BASIC ALLOWANCE FOR QUARTERS WHEN ON TEMPORARY DUTY (INCLUDING TEMPORARY
DUTY ON TRANSPORT) IF IN BASIC ALLOWANCE FOR QUARTERS STATUS AND
PERMANENT STATION REMAINS UNCHANGED. THIS IS TRUE WHETHER OR NOT
QUARTERS ARE FURNISHED AT TEMPORARY DUTY STATIONS. A MEMBER WILL NOT BE
ENTITLED TO BASIC ALLOWANCE FOR QUARTERS, HOWEVER, IF FURNISHED OR
ASSIGNED QUARTERS AT PERMANENT STATION.'
THUS, MEMBERS, WITHOUT DEPENDENTS, PERFORMING TEMPORARY DUTY AWAY
FROM A PERMANENT STATION AT WHICH THEY WERE NOT ASSIGNED, OR FURNISHED,
QUARTERS, BUT AT WHICH THEY WERE PAID A RENTAL ALLOWANCE AND REQUIRED TO
PROCURE THEIR OWN QUARTERS, CONTINUE TO RECEIVE THE RENTAL ALLOWANCE TO
MEET THE CONTINUING EXPENSE OF MAINTAINING SUCH PRIVATELY FINANCED
QUARTERS AT THE PERMANENT STATION DURING THEIR TEMPORARY ABSENCE FROM
THAT STATION. ON THE OTHER HAND, MEMBERS WHO OCCUPY GOVERNMENT QUARTERS
WHILE PERFORMING DUTY AT THE PERMANENT STATION, AND HENCE ARE NOT IN
RECEIPT OF A BASIC ALLOWANCE FOR QUARTERS, DO NOT ACQUIRE A RIGHT TO
RECEIVE SUCH ALLOWANCE UPON DEPARTING FOR A PERIOD OF TEMPORARY DUTY.
WITH RESPECT TO THE FACT THAT YOU WERE REQUIRED TO CLEAR YOUR QUARTERS,
PRESUMABLY IN ANTICIPATION OF YOUR PROLONGED ABSENCE, IT SEEMS
REASONABLE TO ASSUME THAT, IN SUCH CIRCUMSTANCES, PUBLIC QUARTERS AT THE
PERMANENT STATION ORDINARILY WOULD BE MADE AVAILABLE FOR INTERIM
ASSIGNMENT TO OTHER MEMBERS TEMPORARILY IN NEED OF QUARTERS. NORMALLY A
MEMBER ASSIGNED BACHELOR OFFICERS' QUARTERS AT HIS PERMANENT STATION IS
NOT CONCERNED ABOUT THE USE TO WHICH SUCH QUARTERS ARE PUT DURING HIS
TEMPORARY ABSENCE SINCE MEMBERS PERFORMING DUTY AWAY FROM THEIR
PERMANENT STATION UNDER ORDERS ARE IN RECEIPT OF PER DIEM ALLOWANCES
WHICH, IF NO QUARTERS ARE FURNISHED AT THE TEMPORARY DUTY STATION,
INCLUDE AN ALLOWANCE FOR QUARTERS. THE ORDERS OF JANUARY 13, 1958, WERE
NOT ORDERS WHICH YOU WERE REQUIRED TO OBEY BUT WERE PERMISSIVE ORDERS
WHICH YOU COULD EITHER ACCEPT OR REJECT AS YOU SAW FIT. HOWEVER, HAVING
ACCEPTED THESE ORDERS YOU ARE BOUND BY THEIR CONDITIONS, ONE OF WHICH
WAS THAT NO ENTITLEMENT TO TRAVEL ALLOWANCES, THAT IS, TO TRANSPORTATION
OR PER DIEM, WOULD ACCRUE TO YOU BY REASON OF YOUR ABSENCE FROM YOUR
PERMANENT STATION. SINCE YOUR STATUS AT YOUR PERMANENT STATION WAS THAT
OF A MEMBER FURNISHED OR ASSIGNED GOVERNMENT QUARTERS, YOU ARE NOT
ENTITLED UNDER APPLICABLE LAW AND REGULATIONS TO THE BASIC ALLOWANCE FOR
QUARTERS WHILE ABSENT FROM SUCH STATION, NOTWITHSTANDING THE FACT THAT
YOU WERE REQUIRED UNDER THE PROVISIONS OF YOUR PERMISSIVE TRAVEL ORDERS
TO PROCURE QUARTERS AT YOUR OWN EXPENSE WHILE ATTENDING COLUMBIA
UNIVERSITY.
B-139989, AUG. 13, 1959
TO MRS. IVY BAKER PRIEST, TREASURER OF THE UNITED STATES TREASURY
DEPARTMENT:
ON JUNE 2, 1959, FILE CC-424-L, THE SPECIAL ASSISTANT TREASURER
REFERRED TO OUR OFFICE FOR CONSIDERATION THE QUESTION OF WHAT
DISPOSITION SHOULD BE MADE OF THE PROCEEDS OF A CHECK ON WHICH
RECLAMATION ACTION HAD RESULTED IN A COLLECTION FROM THE CASHING
ENDORSER UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED.
THE CHECK IN QUESTION IS INCOME TAX REFUND CHECK NO. 15,491,827,
DATED APRIL 22, 1958, FOR $389.37, DRAWN IN FAVOR OF THE CO-PAYEES J. G.
AND M. R. PALMER (FULL NAMES JOHN G. AND MYRTLE R. PALMER) WHO WERE
HUSBAND AND WIFE. PURSUANT TO THE CLAIM OF MYRTLE R. PALMER, WHO
ALLEGED FORGERY OF HER NAME ON THE ITEM, RECOVERY OF THE FULL AMOUNT WAS
EFFECTED FROM JOHN G. PALMER.
ON JUNE 3, 1958, MYRTLE R. AND JOHN GUY PALMER EXECUTED A PROPERTY
SETTLEMENT AGREEMENT WHICH WAS WITNESSED BY THEIR RESPECTIVE ATTORNEYS.
PARAGRAPH IV THEREOF PROVIDES AS FOLLOWS:
"HUSBAND AGREES THAT THE INCOME TAX RETURN COMING TO THE PARTIES ON
THEIR JOINT RETURN FOR THE TAX YEAR 1957, AND ON WHICH THERE WILL BE AN
INCOME TAX REFUND OF APPROXIMATELY $389.00, SHALL BE PAYABLE TO WIFE,
SINCE THE REFUND COMES AS A RESULT OF A STOCK LOSS HAD BY WIFE ON
CERTAIN PROPERTY WHICH WAS HER SEPARATE PROPERTY. HUSBAND AGREES TO
ENDORSE SAID CHECK TO WIFE, AND ANY AND ALL OTHER DOCUMENTS NECESSARY TO
MAKE SAID REFUND THE SEPARATE PROPERTY OF WIFE.'
THE AGREEMENT WAS MADE PART OF THE INTERLOCUTORY DIVORCE DECREE
GRANTED MRS. PALMER BY THE CALIFORNIA SUPERIOR COURT ON JUNE 20, 1958.
HOWEVER, PRIOR TO THE EXECUTION OF THE AGREEMENT, MR. PALMER HAD
RECEIVED, ENDORSED, AND NEGOTIATED THE CHECK WITHOUT HIS WIFE'S
KNOWLEDGE.
THE UNITED STATES SECRET SERVICE REPORTS THAT THE COURT SUBSEQUENTLY
RULED THAT THAT PORTION OF THE SETTLEMENT AGREEMENT PERTAINING TO THE
CHECK "WAS NOT LEGAL IN THAT THAT COURT DID NOT HAVE THE JURISDICTION OF
DIRECTING THE DISPOSITION OF THE PROCEEDS OF THE CHECK.'
UPON INTERVIEW BY THE SECRET SERVICE MR. PALMER EXECUTED RELEASE FORM
NO. 6735, RELEASING HIS CLAIM FOR THE PROCEEDS OF THE CHECK IN QUESTION
BUT HE SPECIFICALLY DELETED THE LANGUAGE ACKNOWLEDGING RECEIPT OF THE
AMOUNT THEREOF. HE EXPLAINED THAT HE DID NOT INTEND TO WAIVE HIS RIGHT
TO MAKE CLAIM FOR ONE-HALF OF THE AMOUNT OF THE CHECK.
THE SPECIAL ASSISTANT TREASURER SAYS THAT IT IS THE CONTENTION OF
CO-PAYEE JOHN GUY PALMER THAT HE IS ENTITLED TO ONE-HALF THE AMOUNT
INVOLVED IN VIEW OF THE RULING OF THE CALIFORNIA SUPERIOR COURT AND
INTENDS TO PRESS HIS CLAIM THEREFOR, AND THAT CO-PAYEE MYRTLE R. PALMER
REFUSES TO ACCEPT ONE-HALF THE AMOUNT OF THE CHECK AND INSISTS THAT HER
CLAIM FOR THE ENTIRE AMOUNT BE APPROVED.
WITH RESPECT TO THE REPORTED RULING BY THE CALIFORNIA SUPERIOR COURT
TO THE EFFECT THAT THAT PORTION OF THE SETTLEMENT AGREEMENT PERTAINING
TO THE CHECK WAS NOT LEGAL IN THAT THE COURT DID NOT HAVE JURISDICTION
OF DIRECTING THE DISPOSITION OF THE PROCEEDS OF THE CHECK, IT IS OBVIOUS
THAT THE RULING OF THE COURT RELATED TO THE PROPRIETY OF INCLUDING THAT
PORTION OF THE AGREEMENT IN THE DIVORCE DECREE RATHER THAN RELATING TO
THE MERITS OF SUCH PORTION OF THE AGREEMENT. THIS IS BECAUSE THE STATED
REASON FOR THE RULING IS THAT THE COURT LACKED JURISDICTION TO DIRECT
THE DISPOSITION OF THE PROCEEDS OF THE CHECK. FURTHERMORE, IT IS WELL
ESTABLISHED THAT A VALID CONTRACT SETTLING PROPERTY RIGHTS BETWEEN
MARRIED PERSONS DOES NOT REQUIRE THE APPROVAL OF A DIVORCE COURT TO
RENDER IT EFFECTIVE. IT IS BINDING ON THE PARTIES AND ENFORCEABLE BY
EITHER OF THEM AGAINST THE OTHER EVEN THOUGH THE COURT FAILS OR REFUSES
TO ADOPT OR APPROVE THE AGREEMENT BY ITS DECREE IN A DIVORCE PROCEEDING.
SANBORN V. SANBORN, 39 P.2D 830; GREEN V. GREEN, 151 P.2D 679;
ROBERTS V. ROBERTS, 256 P. 826; SCHNERR F. SCHNERR, 17 P.2D 749;
SECTIONS 158, 159, CIVIL CODE OF THE STATE OF CALIFORNIA. IT THUS
APPEARS THAT THE VALIDITY OF THE SETTLEMENT AGREEMENT, HERE INVOLVED,
HAS NOT BEEN AFFECTED BY THE SUBSEQUENT RULING OF THE COURT THAT THE
PORTION RELATING TO THE TAX REFUND CHECK WAS IMPROPERLY INCLUDED IN THE
DIVORCE DECREE. ACCORDINGLY, PAYMENT OF THE FULL AMOUNT OF THE CHECK
MAY BE MADE TO MYRTLE R. PALMER.
B-140108, AUG. 13, 1959
TO CAPTAIN J. V. HEIMARK, U.S. NAVAL ATTACHE, UNITED STATES EMBASSY,
MEXICO CITY:
ON JUNE 19, 1959, YOU REQUESTED AUTHORITY TO PURCHASE TRANSPORTATION
FOR MRS. ANITA PINI, A CIVILIAN EMPLOYEE TRANSFERRING FROM YOUR OFFICE
TO THE OFFICE OF THE UNITED STATES NAVAL ATTACHE IN BONN, GERMANY, ON A
FOREIGN FLAG VESSEL INSTEAD OF ON A SHIP OF UNITED STATES REGISTRY.
YOU SAY THAT THERE ARE NO VESSELS UNDER UNITED STATES REGISTRY
DEPARTING MEXICO FOR EUROPE. YOUR LETTER FURTHER READS:
"2. MRS. PINI DOES NOT DESIRE TO TAKE LEAVE IN THE UNITED STATES
ENROUTE TO BONN, GERMANY, BUT DESIRES TO TAKE HER LEAVE OUTSIDE THE
UNITED STATES WHILE ENROUTE. SHE HAS STATED THAT SHE PREFERS SURFACE
VESSEL IN LIEU OF AIR TRANSPORTATION * * *.
"3. THE MOST DIRECT ROUTE VIA SURFACE VESSEL FROM MEXICO TO EUROPE
IS ON BOARD A VESSEL OF THE "COMPANIA TRANS ATLANTICA ESPANOLA" LINES,
WHICH IS NOT REGISTERED UNDER THE LAWS OF THE UNITED STATES AND HAS THE
FOLLOWING SCHEDULE:
TABLE
DEP: VERACRUZ, MEXICO 2-3 OCT 1959
ARR: HAVANA, CUBA 5 OCT 1959
DEP: HAVANA, CUBA 8 OCT 1959
ARR: NEW YORK, NEW YORK 11 OCT 1959
DEP: NEW YORK, NEW YORK 16 OCT 1959
ARR: BILBAO, SPAIN 26 OCT 1959
TRAVEL FROM BILBAO, SPAIN TO BONN, GERMANY TO BE VIA RAIL.'
THUS, IT APPEARS THAT IN ORDER TO USE AN AMERICAN VESSEL IT WILL BE
NECESSARY FOR MRS. PINI TO TRAVEL TO A PORT OUTSIDE OF MEXICO AND
TRANSSHIP AT THAT POINT TO AN AMERICAN VESSEL.
SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, 49 STAT. 2015, 46
U.S.C. 1241, PROVIDES:
"ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING ON OFFICIAL
BUSINESS OVERSEAS OR TO OR FROM ANY OF THE POSSESSIONS OF THE UNITED
STATES SHALL TRAVEL AND TRANSPORT HIS PERSONAL EFFECTS ON SHIPS
REGISTERED UNDER THE LAWS OF THE UNITED STATES WHERE SUCH SHIPS ARE
AVAILABLE UNLESS THE NECESSITY OF HIS MISSION REQUIRES THE USE OF A SHIP
UNDER A FOREIGN FLAG: PROVIDED, THAT THE COMPTROLLER GENERAL OF THE
UNITED STATES SHALL NOT CREDIT ANY ALLOWANCE FOR TRAVEL OR SHIPPING
EXPENSES INCURRED ON A FOREIGN SHIP IN THE ABSENCE OF SATISFACTORY PROOF
OF THE NECESSITY REFOR.'
IN 31 COMP. GEN. 351, WE HELD IN PART THAT "* * * WHERE A ROUTING
DESIGNED TO UTILIZE AN AMERICAN VESSEL INVOLVES CONSIDERABLE LAND TRAVEL
OR TRANSPORTATION ON A FOREIGN VESSEL FOR A PART OF THE JOURNEY WITH A
CONSEQUENT TRANSSHIPMENT TO AN AMERICAN VESSEL AT EXCESSIVE EXTRA COST
AND DELAY, FOREIGN VESSELS FURNISHING DIRECT TRANSPORTATION BETWEEN THE
PORT OF ORIGIN OF THE TRAVEL AND THE PORT OF DESTINATION GENERALLY MAY
BE USED.' ELABORATING ON THAT POINT IN 36 COMP. GEN. 53, WE SAID:
"WHILE UNDER 31 COMP. GEN. 351, FOREIGN VESSELS FURNISHING DIRECT
SERVICE MAY BE USED GENERALLY WHERE THE PORT OF ORIGIN OF THE OCEAN
TRAVEL AND THE PORT OF DESTINATION ARE NOT BOTH SERVED BY AMERICAN
VESSELS, THERE IS THE EXPLICIT REQUIREMENT THAT A ROUTING DESIGNED TO
UTILIZE AN AMERICAN SHIP INVOLVES TRANSSHIPMENT "AT EXCESSIVE EXTRA COST
AND DELAY.' * * * HAVING IN MIND THE PRIMARY PURPOSE OF SECTION 901,
MERE INCONVENIENCE TO THE TRAVELER, REASONABLE DELAYS AND MINOR
ECONOMIES ARE NOT FACTORS WHICH NORMALLY WOULD JUSTIFY THE USE OF
FOREIGN VESSELS OVER THOSE OPERATING UNDER THE AMERICAN FLAG. * * *"
WE HELD FURTHER IN THAT DECISION THAT "AS A GENERAL RULE * * *
EMPLOYEES WHOSE OFFICIAL TRAVEL ORIGINATES OR TERMINATES AT A PORT
SERVICED BY FOREIGN VESSELS ARE NOT REQUIRED TO TRANSSHIP IN ORDER TO
UTILIZE AMERICAN VESSELS.' WE EMPHASIZED, HOWEVER, THAT SUCH RULE WOULD
NOT APPLY TO EMPLOYEES WHOSE TRAVEL BEGAN AT AN INLAND POINT
NECESSITATING TRANSSHIPMENT IN ANY EVENT. IN MRS. PINI'S CASE, HER
PROPOSED TRAVEL WOULD REQUIRE TRANSSHIPMENT AT VERA CRUZ AND, IF THE
FOREIGN FLAG VESSEL WAS USED, AGAIN AT BILBAO, SPAIN. HENCE, THE
GENERAL RULE QUOTED ABOVE MAY NOT BE APPLIED TO HER TRAVEL.
YOUR LETTER SHOWS THAT THE VESSEL WHICH MRS. PINI WOULD PREFER TO USE
WILL STOP IN NEW YORK FOR ABOUT FIVE DAYS. SINCE SEVERAL AMERICAN LINES
PROVIDE REGULAR SAILINGS FROM NEW YORK TO PORTS IN EUROPE, WE MUST
CONCLUDE THAT, NOTWITHSTANDING A TRANSSHIPMENT WOULD BE REQUIRED THERE,
THE USE OF A FOREIGN FLAG SHIP FROM NEW YORK TO EUROPE IS NOT AUTHORIZED
UNDER SECTION 901 IN THESE CIRCUMSTANCES. REGARDING MARINE SURFACE
TRANSPORTATION FROM VERA CRUZ TO NEW YORK, THERE WOULD BE NO OBJECTION
TO THE USE OF A FOREIGN FLAG VESSEL UNLESS A PASSENGER VESSEL OF
AMERICAN REGISTRY IS AVAILABLE AT THE TIME.
IN REACHING THIS CONCLUSION WE ASSUME THAT ACCOMMODATIONS WILL BE
AVAILABLE UPON A VESSEL OF AMERICAN REGISTRY, SAILING FROM NEW YORK ON
APPROXIMATELY THE SAME DATE AS THE VESSEL OF FOREIGN REGISTRY TO WHICH
YOU REFER.
B-140296, AUG. 13, 1959
TO H. E. CUTTER AND DAD DRILLING COMPANY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 10, 1959, IN EFFECT,
REQUESTING RECONSIDERATION OF SETTLEMENT DATED JUNE 19, 1959, BY WHICH
OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR THE SUM OF $1,101.25,
REPRESENTING ADDITIONAL COMPENSATION ALLEGED TO BE DUE YOU FOR WORK
PERFORMED UNDER GEOLOGICAL SURVEY CONTRACT NO. 14-08-001-5810, DATED
OCTOBER 28, 1958.
THE RECORD SHOWS THAT BY LETTER OF MARCH 27, 1959, YOU SUBMITTED TO
THE GEOLOGICAL SURVEY A CLAIM IN THE NET AMOUNT OF $1,098.61, CONSISTING
OF THE PRINCIPAL SUM OF $6,762.20, CLAIMED TO BE DUE YOU UNDER THE
CONTRACT OF OCTOBER 28, 1958, LESS A CREDIT OF $293.40 FOR UNUSED PIPE,
AND LESS
PAYMENTS OF $1,436.85 AND $3,983.64, PLUS INTEREST CLAIMED IN THE
AMOUNT OF $50.30. THE PRINCIPAL AMOUNT OF $6,762.20 CONSISTED OF THE
SUM OF $5,384.70 FOR 5,790 FEET OF DRILLING AT $0.93 PER FOOT; THE SUM
OF $730 FOR FURNISHING AND INSTALLING 1,008 FEET OF PIPE; AND THE SUM
OF $647.50 FOR 70 HOURS OF STANDBY TIME OF $9.25 PER HOUR. BY CHECK
DATED DECEMBER 12, 1958, YOU WERE PAID THE SUM OF $1,434.22--- NOT THE
SUM OF $1,436.84 INDICATED IN YOUR LETTER OF MARCH 27, 1959--- COVERING
THE FOLLOWING ITEMS:
CHART
FOR DRILLING 1,545 FEET (TEST HOLES NOS. 1
THROUGH 7) AT $0.93 PER FOOT $1,436.85
FOR FURNISHING AND INSTALLING 2-INCH PIPE AND
SANDPOINT IN TEST HOLE NO. 4--- 126 FEET AT
$0.73 PER FOOT 91.98
STANDBY TIME--- 7 HOURS AT $9.25 PER HOUR 64.75
----------
TOTAL $1,593.58
LESS 10 PERCENT RETAINED 159.36
----------
BALANCE $1,434.22
BY YOUR LETTER OF JANUARY 1, 1959, YOU SUBMITTED TO THE GEOLOGICAL
SURVEY A FURTHER CLAIM IN THE NET AMOUNT OF $4,568.56, STATED AS
COVERING THE FOLLOWING ITEMS:
FOR DRILLING 5,790 FEET (TEST HOLES NOS. 1
THROUGH 26) AT $0.93 PER FOOT $5,394.70
FOR FURNISHING AND INSTALLING 2-INCH PIPE---
527 FEET AT $0.73 PER FOOT 384.71
"LOGING AND WAITING TIME" 236.00
----------
TOTAL $6,005.41
LESS PRIOR PAYMENTS 1,436.85
----------
BALANCE $4,568.56
THERE APPEAR TO BE TWO ERRORS IN THE ABOVE CLAIM--- THE TOTAL OF THE
FIRST THREE ITEMS SHOULD BE $6,015.41 AND THE PREVIOUS PAYMENT WAS IN
THE AMOUNT OF $1,434.22.
IN HIS FINDINGS OF FACT CONCERNING YOUR CLAIM, THE PROCUREMENT
OFFICER, MR. C. C. SCHADE, REPORTED THAT YOU WERE ENTITLED TO BE PAID
THE NET AMOUNT OF $3,983.63 FOR THE WORK ACTUALLY PERFORMED ON WELLS
NOS. 8 THROUGH 26, INCLUSIVE, AS SHOWN BY THE FOLLOWING COMPUTATION:
ITEM NO. 1 4,245 FEET OF DRILLING AT
$0.93 PER FOOT $3,947.85
ITEM NO. 2 398 FEET OF PIPE AT $0.73 PER FOOT 290.54
ITEM NO. 3 STANDBY TIME AT WELL NO. 10--- 3 HOURS
AT $9.25 PER HOUR 27.75
STANDBY TIME AT WELL NO. 13--- 2 1/2
HOURS AT $9.25 PER HOUR 23.13
----------
TOTAL $4,289.27
MR. SCHADE REPORTED FURTHER THAT THE GEOLOGICAL SURVEY FILLED IN 17
HOLES AT A COST OF $20 EACH AND THAT THE GOVERNMENT IS ENTITLED TO A
DEDUCTION THEREFOR IN THE AMOUNT OF $340; ALSO, THAT THE SURVEY
DEVELOPED WELL NO. 23 AT A COST OF $125 AND THAT A DEDUCTION OF THAT
AMOUNT SHOULD BE MADE. SUBTRACTING THE TOTAL OF THESE TWO ITEMS ($465)
FROM THE AMOUNT OF $4,289.27, PAYABLE UNDER YOUR CONTRACT, LEAVES A
BALANCE OF $3,824.27, AND ADDING THE AMOUNT OF $159.36, WITHHELD IN THE
PRIOR PAYMENT, LEAVES THE SUM OF $3,983.63 AS DUE AND PAYABLE UNDER THE
CONTRACT. THE RECORDS INDICATE THAT YOU WERE PAID THE LATTER AMOUNT BY
CHECK DATED MARCH 9, 1959. THE CLAIM CONSIDERED IN THE SETTLEMENT OF
JUNE 19, 1959, COVERED THE DIFFERENCES BETWEEN THE AMOUNTS PAID AND THE
AMOUNTS CLAIMED BY YOU TO BE DUE UNDER THE CONTRACT, THAT IS TO SAY, THE
SUM OF $54.08, REPRESENTING 15 PERCENT OF THE VALUE OF 473 FEET OF
UNUSED GALVANIZED STEEL PIPE; THE AMOUNT OF $531.87 AS THE DIFFERENCE
BETWEEN THE SUM OF $647.50 FOR 70 HOURS OF STANDBY TIME CLAIMED BY YOU
AND THE AMOUNT OF $115.43 ($64.75 PLUS $27.75 PLUS $23.13) REPORTED BY
THE PROCUREMENT OFFICER AS ALLOWABLE UNDER THE CONTRACT, TOGETHER WITH
THE DEDUCTIONS AMOUNTING TO $465 MADE BY THE GOVERNMENT FOR UNFINISHED
WORK REQUIRED BY THE CONTRACT.
YOUR CLAIM IN THE AMOUNT OF $54.08 WAS PROPERLY DISALLOWED IN THE
SETTLEMENT OF JUNE 19, 1959, FOR THE REASON THAT THE CONTRACT IN THIS
CASE CLEARLY SHOWS THAT THE QUANTITY OF PIPE REQUIRED WAS ESTIMATED AND
THAT PAYMENT WOULD BE MADE AT THE CONTRACT RATE FOR ONLY SUCH PIPE AS
WAS ACTUALLY USED. THE RECORD INDICATES THAT 524 FEET OF PIPE WERE
ACTUALLY FURNISHED AND THAT PAYMENT WAS MADE THEREFOR AT THE AUTHORIZED
RATE. RESPECTING THE AMOUNT OF $531.87, IT MAY BE SAID THAT IN THE
SETTLEMENT OF CONTRACT CLAIMS IT IS OUR PRACTICE TO ACCEPT THE REPORT OF
THE ADMINISTRATIVE OFFICE CONCERNING THE SERVICES RENDERED UNDER THE
CONTRACT. THIS NECESSARILY MUST BE THE PRACTICE BECAUSE OUR OFFICE HAS
NO FIRST-HAND INFORMATION REGARDING SUCH MATTER. IN THIS CASE THE
GEOLOGICAL SURVEY REPORTED THAT YOU WERE ENTITLED TO BE PAID FOR 12 1/2
HOURS OF STANDBY TIME, AND THAT AMOUNT HAS BEEN PAID.
AS TO THE SUM OF $50.30, REPRESENTING YOUR CLAIM FOR INTEREST, IT HAS
BEEN HELD IN NUMEROUS CASES THAT IN THE ABSENCE OF A STIPULATION TO PAY
INTEREST OR STATUTE ALLOWING INTEREST, NONE CAN BE RECOVERED AGAINST THE
UNITED STATES ON UNPAID ACCOUNTS OR CLAIMS. SEE THE OPINION RENDERED BY
THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT IN THE CASE OF NEW
YORK AND PORTO RICO S.S. COMPANY V. UNITED STATES, 29 F.2D 1014; ALSO,
CONSOLIDATED ENGINEERING COMPANY V. UNITED STATES, 35 F.SUPP. 980, AND
SMYTH V. UNITED STATES, 302 U.S. 329, 353.
THE REASONS FOR THE DISALLOWANCE OF YOUR CLAIM FOR REFUND OF SUMS
AGGREGATING $465 DEDUCTED FROM AMOUNTS OTHERWISE PAYABLE TO YOU, ARE
FULLY SET FORTH IN THE SETTLEMENT AND ADDITIONAL COMMENT THEREON APPEARS
NOT TO BE REQUIRED EXCEPT TO SAY THAT THE RECORD SEEMS TO CLEARLY
ESTABLISH THAT YOU FAILED TO COMPLETE CERTAIN WORK REQUIRED OF YOU UNDER
THE CONTRACT, AND THAT THE GOVERNMENT WAS REQUIRED TO INCUR A COST
AMOUNTING TO $465 FOR ITS COMPLETION.
THERE IS NOTHING IN YOUR LETTER OF JULY 10, 1959, WHICH WOULD JUSTIFY
OUR OFFICE IN REVISING THE ACTION TAKEN IN THE SETTLEMENT OF JUNE 19,
1959, AND THE SAME IS SUSTAINED.
B-140297, AUG. 13, 1959
TO THE SECRETARY OF THE INTERIOR:
REFERENCE IS MADE TO LETTER OF JULY 22, 1959, WITH ENCLOSURES, FROM
MR. E. A. POYNTON, BUREAU OF INDIAN AFFAIRS, ALBUQUERQUE, NEW MEXICO,
REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO AN
ERROR ALLEGED BY NOYES CONSTRUCTION CO. TO HAVE BEEN MADE IN ITS BID
SUBMITTED IN RESPONSE TO AN INVITATION FOR BIDS ON PROJECT NO.
ABU-PH-37, COVERING HOSPITAL CONSTRUCTION AND REMODELING AT ROSEBUD,
SOUTH DAKOTA.
THE INVITATION, DATED MAY 13, 1959, REQUESTED BIDS TO BE OPENED AT
2:00 P.M. ON JUNE 24, 1959. AT THE TIME OF OPENING, FIVE BIDS HAD BEEN
RECEIVED RANGING--- ON THE BASE PROPOSAL--- FROM $680,000 TO $753,400.
THERE HAD BEEN RECEIVED ALSO A TELEGRAM FROM NOYES CONSTRUCTION CO.
DEDUCTING $170,000 FROM ITS BID BUT THE BID HAD NOT YET BEEN RECEIVED.
THE BID WAS POSTMARKED AS RECEIVED AT ALBUQUERQUE AT 3:30 P.M. AND WAS
RECEIVED AT THE CONTRACTING OFFICE AT 3:40 P.M. ON JUNE 24. IT IS
REPORTED THAT AFTER INVESTIGATION IT WAS DETERMINED THAT FAILURE OF THE
BID TO ARRIVE ON TIME "WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH
THE BIDDER WAS NOT RESPONSIBLE" AND THAT, THEREFORE, THE BID WAS OPENED
FOR CONSIDERATION. THE ORIGINAL BID WAS IN THE AMOUNT OF $800,000 ON
THE BASE PROPOSAL, LEAVING A NET BID OF $630,000 AS AMENDED BY THE
TELEGRAM. IT APPEARS THAT MR. NOYES OF NOYES CONSTRUCTION CO. MADE A
TELEPHONE CALL TO THE CONTRACTING OFFICE ABOUT 2:45 P.M. ON JUNE 24 AND
WAS ADVISED AS TO THE AMOUNTS OF THE BIDS RECEIVED, NO MENTION BEING
MADE OF THE RECEIPT OF THE TELEGRAPHIC MODIFICATION OF THE NOYES BID OR
THE FACT THAT ITS BID HAD NOT BEEN RECEIVED AT THAT TIME. AT
APPROXIMATELY 3:00 P.M., THE CONTRACTING OFFICE MADE A TELEPHONE CALL TO
MR. NOYES ADVISING HIM THAT THE BID HAD NOT YET BEEN RECEIVED, ALTHOUGH
THE TELEGRAPHIC MODIFICATION HAD BEEN RECEIVED PRIOR TO THE TIME OF
OPENING THE BIDS. DURING THIS CONVERSATION, MR. NOYES ALLEGED AN ERROR
OF APPROXIMATELY $30,000 IN THE NOYES BID.
IN A LETTER DATED JUNE 25, 1959, NOYES CONSTRUCTION CO. REQUESTED
THAT ITS BID BE INCREASED $31,513 TO A TOTAL OF $661,513, ALLEGING AN
ERROR OF $31,513 IN ITS BID, RESULTING FROM FAILURE TO INCLUDE AN ITEM
OF FIVE PERCENT FOR OVERHEAD. HOWEVER, IN A MEMORANDUM DATED JUNE 26,
1959, MR. NOYES STATED THAT IF THE ERROR HAD NOT BEEN MADE THE BID
WOULD HAVE BEEN "A ROUNDED OFF FIGURE OF $661,000.00.'
TRANSMITTED WITH THE LETTER OF JUNE 25 WERE ESTIMATE SHEETS, SWORN TO
AS BEING THE ORIGINAL SHEETS, APPARENTLY SUBSTANTIATING THE BIDDER'S
CONTENTION THAT NO ITEM FOR OVERHEAD WAS INCLUDED IN THE BID. ALTHOUGH
A NOTATION "PLUS 5 PERCENT" IS FOUND NEAR THE END OF THE ESTIMATE
SHEETS, NO CORRESPONDING AMOUNT HAD BEEN ADDED. IN A MEMORANDUM DATED
JULY 6, 1959, FROM THE CONSTRUCTION MANAGEMENT ENGINEER, REPORTING ON
HIS PERSONAL INVESTIGATION AT THE BIDDER'S OFFICE, IT IS STATED THAT THE
RECORD SATISFACTORILY ESTABLISHED THAT IT WAS THE REGULAR PRACTICE OF
THE NOYES CONSTRUCTION CO. TO ADD TO ITS BIDS AN ITEM OF FIVE PERCENT
FOR OVERHEAD.
BY LETTER OF JUNE 30, 1959, AWARD WAS MADE TO NOYES CONSTRUCTION CO.
(CONTRACT NO. 14-20-150-315) AT A CONTRACT PRICE OF $624,500 ($630,000
LESS AN ALTERNATE BID DEDUCTION OF $5,500 FOR OMISSION OF DENTAL
EQUIPMENT), IT BEING STATED IN THE LETTER THAT THE ALLEGATION OF ERROR
AND REQUEST FOR RELIEF WOULD BE SUBMITTED TO THE GENERAL ACCOUNTING
OFFICE FOR DECISION.
IN ITS LETTER OF JUNE 30, 1959, THE BIDDER STATES IN SUBSTANCE THAT
ITS FAILURE TO INCLUDE THE ITEM FOR OVERHEAD RESULTED FROM THE FACT THAT
IT WAS "EXTREMELY BUSY WITH MORE THAN THAT JOB WHICH WERE LET AT 2:00
P.M. THAT DAY; " ALSO, THAT THE MISTAKE WAS NOT DISCOVERED UNTIL
APPROXIMATELY :00 P.M. ON JUNE 24--- TOO LATE TO ALLEGE THE MISTAKE
PRIOR TO THE BID OPENING.
THE INFORMATION AVAILABLE APPEARS TO SUPPORT ADEQUATELY THE
DETERMINATION OF THE CONTRACTING OFFICER THAT THE FAILURE OF THE NOYES
CONSTRUCTION CO. BID TO ARRIVE IN TIME FOR THE BID OPENING RESULTED FROM
A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE, IT
APPEARING THAT ORDINARILY THE BID WOULD HAVE ARRIVED AT ALBUQUERQUE AT
9:12 A.M. ON JUNE 24. MOREOVER, IT MAY BE REGARDED AS SATISFACTORILY
ESTABLISHED THAT NOYES CONSTRUCTION CO., MADE A BONA FIDE ERROR IN ITS
BID AS ALLEGED AND EXPLAINED BY IT.
FOR THE REASONS ABOVE SET FORTH, WE OFFER NO OBJECTION TO INCREASING
THE CONTRACT PRICE IN THE AMOUNT OF $31,000 TO A TOTAL PRICE OF $655,500
WHICH IS STILL $20,000 LESS THAN THE NEXT LOW BID OF H. HALVORSON, INC.,
($680,000 LESS AN ALTERNATE BID DEDUCTION OF $4,500 FOR OMISSION OF
DENTAL EQUIPMENT). REFERENCE TO THIS DECISION SHOULD ACCOMPANY THE
CONTRACT.
THE ORIGINAL PAPERS TRANSMITTED WITH MR. POYNTON'S LETTER ARE
RETURNED HEREWITH AND THE COPIES ARE BEING RETAINED HERE.
B-131606, AUG. 12, 1959
TO MRS. MILDRED H. BISSETT:
ON JULY 1, 1959, YOU WROTE FURTHER CONCERNING YOUR EFFORTS TO HAVE
THE AMOUNT OF UNPAID COMPENSATION DUE YOUR DECEASED BROTHER, CHESTER A.
HORNEY, PAID TO YOU AS ADMINISTRATRIX OF HIS ESTATE.
OUR OFFICE HAS ADVISED YOU PREVIOUSLY THAT SINCE THE OFFICIAL RECORD
SHOWS YOUR BROTHER TO HAVE BEEN MARRIED TO ANNA COX HORNEY, THOUGH
SEPARATED AT THE TIME OF HIS DEATH, THE STATUTE DOES NOT PERMIT THE
PAYMENT OF UNPAID COMPENSATION TO ANY PERSON OTHER THAN THE WIDOW. WE
ADVISED YOU THAT IN ORDER FOR YOU TO RECEIVE THE MONEY AS ADMINISTRATRIX
IT WOULD BE NECESSARY FOR YOU TO FURNISH PROOF THAT ANNA COX HORNEY
PREDECEASED YOUR BROTHER OR THAT THE MARRIAGE HAD NEVER EXISTED OR HAD
BEEN LEGALLY TERMINATED PRIOR TO HIS DEATH.
IN YOUR LAST LETTER YOU SAY THAT THE PENNSYLVANIA STATE DEPARTMENT OF
HEALTH SEARCHED THE RECORDS FROM 1926 THROUGH 1943 AND FOUND NO RECORD
OF SUCH MARRIAGE. WE CANNOT CONSIDER SUCH A STATEMENT, EVEN IF
SUPPORTED BY AN OFFICIAL REPORT FROM THE STATE OF PENNSYLVANIA, AS PROOF
THAT NO LEGAL MARRIAGE EVER EXISTED BECAUSE, FOR ONE REASON, THE
MARRIAGE COULD HAVE BEEN PERFORMED IN ANOTHER STATE.
WE KNOW OF NOTHING MORE THAN WE MIGHT ADD TO OUR STATEMENTS IN THIS
AND PREVIOUS LETTERS TO YOU ON THIS SUBJECT. WITHOUT THE POSITIVE PROOF
DESCRIBED IN OUR SECOND PARAGRAPH ABOVE, THE CLAIM CANNOT BE PAID TO ANY
ONE EXCEPT YOUR BROTHER'S WIDOW AS PROVIDED IN THE STATUTE.
B-139737, AUG. 12, 1959
TO THE SECRETARY OF THE NAVY:
ON MAY 25, 1959, THE ASSISTANT SECRETARY REQUESTED OUR DECISION
WHETHER EMPLOYEES WHO ARE PLACED BY LAW IN THE FIRST LONGEVITY STEP OF A
GRADE PRIOR TO COMPLETING THE TIME NORMALLY REQUIRED FOR THE FIRST
LONGEVITY STEP INCREASE UNDER FACTS SIMILAR TO THOSE CONSIDERED IN 31
COMP. GEN. 166, MAY INCLUDE TIME SPENT IN A SAVED RATE OF COMPENSATION
BETWEEN THE MAXIMUM SCHEDULED RATE OF THEIR GRADE WITH THE TIME SPENT IN
THE FIRST LONGEVITY STEP OF SUCH GRADE FOR THE PURPOSE OF ESTABLISHING
ENTITLEMENT FOR A SECOND LONGEVITY STEP INCREASE. HIS DOUBT IN THE
MATTER APPEARS TO BE BASED UPON THE CONCLUSIONS STATED IN OUR DECISION
34 COMP. GEN. 691.
APPARENTLY THE FACTS CONCERNING THE EMPLOYEES UPON WHICH A DECISION
IS REQUESTED ARE SIMILAR TO THOSE STATED BY QUESTION 10 IN 31 COMP.
GEN. 166. THOSE FACTS ARE QUOTED AS FOLLOWS:
"10. AS THE RESULT OF A SAVINGS CLAUSE IN THE CLASSIFICATION ACT OF
1949 AS EMPLOYEE, FOR EXAMPLE, IN GS-5, IS RECEIVING A RATE WHICH FALLS
BETWEEN THE MAXIMUM SCHEDULED RATE AND THE FIRST LONGEVITY STEP FOR THE
GRADE OF HIS POSITION. UNDER SECTION 1 (B) (2) (A) OF THE NEW ACT, HE
IS MOVED TO THE FIRST LONGEVITY RATE AND THEN GRANTED THE INCREASE AT
THAT RATE. DOES HE BEGIN A NEW LONGEVITY PERIOD ON THAT DATE? (THE LAW
REQUIRES THAT EACH THREE-YEAR LONGEVITY PERIOD BE SERVED AT A LONGEVITY
RATE FOR THAT GRADE.) FOR EXAMPLE, IF THIS EMPLOYEE HAD SERVED TWO YEARS
TOWARD A LONGEVITY STEP INCREASE AT THE IN-BETWEEN RATE, UNDER FORMER
LAW AND CURRENT REGULATIONS, IS HE STILL REQUIRED TO SERVE THREE YEARS
FROM THE DATE HE WAS ADVANCED TO THE FIRST LONGEVITY RATE EVEN THOUGH HE
DID NOT RECEIVE A FULL STEP INCREASE? (SEE SEC. 25.52 (B) AND SEC.
25.54 OF THE FEDERAL EMPLOYEES PAY REGULATIONS.)"
IN ANSWER TO THE ABOVE QUESTION WE SAID THAT UNDER THE PROVISIONS OF
SECTION 702 (A) OF THE CLASSIFICATION ACT OF 1949 ONE OF THE CONDITIONS
TO ELIGIBILITY FOR LONGEVITY STEP INCREASES IS THAT THE EMPLOYEE MUST
HAVE COMPLETED THREE YEARS OF CONTINUOUS SERVICE AT THE MAXIMUM
SCHEDULED RATE OF HIS GRADE OR AT ONE OF THE PRESCRIBED LONGEVITY STEPS.
SINCE BY INITIAL ADJUSTMENT REQUIRED BY THE PROVISIONS OF SECTION 1 (B)
(2) (A) OF PUBLIC LAW 201, THE EMPLOYEE IN QUESTION MOVED TO THE FIRST
LONGEVITY RATE AS OF THE EFFECTIVE DATE OF THE ACT, IT FOLLOWS THAT HE
MUST COMPLETE THREE YEARS OF CONTINUOUS SERVICE AT SUCH RATE BEFORE HE
IS ELIGIBLE FOR ADVANCEMENT TO THE SECOND LONGEVITY RATE.
OUR DECISION 34 COMP. GEN. 691 CONCERNED THE RIGHTS OF EMPLOYEES TO
PERIODIC AND LONGEVITY STEP-INCREASES UPON CONVERSION OF THEIR CPC
POSITIONS TO GS POSITIONS UNDER THE PROVISIONS OF SECTION 106 OF THE ACT
OF SEPTEMBER 1, 1954, 68 STAT. 1105. THAT SECTION PRESCRIBED THE
BEGINNING AND ENDING DATES OF THE PERIOD DURING WHICH THE CONVERSION OF
THE CPC POSITIONS TO GS POSITIONS WAS TO BE MADE AS WELL AS THE BASIS
FOR THE INITIAL ADJUSTMENTS OF RATES UPON CONVERSION. IN CONSTRUING THE
1954 ACT WE HELD THAT TIME SPENT AT THE MAXIMUM SCHEDULED RATE OF THE
CPC POSITION AND IN THE LONGEVITY STEP OF THE GS POSITION COULD BE
COMBINED TOWARDS THE NEXT LONGEVITY STEP INCREASE. HOWEVER, WE WERE
CAREFUL TO POINT OUT THAT SECTION 25.54 OF THE FEDERAL PERSONNEL MANUAL
APPEARED TO HAVE NO APPLICATION TO THIS SITUATION SINCE THE EMPLOYEE
CONCERNED WAS NOT RECEIVING A RATE OF BASIC COMPENSATION IN EXCESS OF
THE SCHEDULED RATE FOR THE GRADE AS A RESULT OF A SAVING PROVISION.
THEREFORE, THIS DECISION WAS LIMITED TO THE CPC POSITIONS WHICH WERE
CONVERTED TO GS POSITIONS UNDER THE PROVISIONS OF THE 1954 ACT.
SINCE THE SPECIFIC FACTS CONCERNING THE SAVED RATE OF COMPENSATION
FOR THE NAVY EMPLOYEES IN QUESTION WERE NOT PRESENTED TO US IN THE
ASSISTANT SECRETARY'S LETTER, OTHER THAN THAT THE FACTS ARE SIMILAR TO
THOSE CONSIDERED BY US IN 31 COMP. GEN. 166, WE MUST ASSUME THAT OUR
ANSWER TO QUESTION 10, AS QUOTED ABOVE, APPLIES TO THE FACTS IN THEIR
CASES. THEREFORE, UPON THE BASIS OF THIS ASSUMPTION, WE MUST CONCLUDE
THAT THE NAVY EMPLOYEES CONCERNED MUST COMPLETE THREE YEARS OF
CONTINUOUS SERVICE AT THEIR ADJUSTED RATE BEFORE THEY ARE ELIGIBLE FOR
ADVANCEMENT TO THE NEXT LONGEVITY RATE.
B-139800, AUG. 12, 1959
TO BRIGHTMAN TRUCK PARTS COMPANY:
REFERENCE IS MADE TO YOUR LETTER OF JULY 29, 1959, REQUESTING
RECONSIDERATION OF OUR DECISION OF JULY 27, 1959, WHICH DISALLOWED YOUR
CLAIM FOR $93, REPRESENTING REFUND OF THE AMOUNT PAID FOR
QUANTITY OF COPPER TUBING PURCHASED FROM THE DEPARTMENT OF THE NAVY
UNDER CONTRACT NO. N407S-7336, DATED FEBRUARY 4, 1959.
THE BASIC REASON SET FORTH IN OUR DECISION FOR DENYING YOU RELIEF WAS
THAT UNDER THE TERMS OF THE CONTRACT (PARAGRAPH 1 AND 2 OF THE GENERAL
SALE TERMS AND CONDITIONS) THE PARTIES AGREED THAT ANY RISK AS TO THE
CONDITION OF THE MATERIAL SOLD OR FROM THE FAILURE TO INSPECT THE
MATERIAL BEFORE THE SALE WAS CONSUMMATED WAS ASSUMED BY YOU AS ONE OF
THE ELEMENTS OF THE BARGAIN. IN THE LATTER CONNECTION, YOU REITERATE
YOUR CONTENTION THAT YOU FOUND IT IMPOSSIBLE TO VISIT THE DISPOSAL SITE
TO EXAMINE THE MATERIAL, IN VIEW OF WHICH YOU SEEK A CREDIT OF ONE-HALF
OF THE CONTRACT CONSIDERATION.
WE HAVE REVIEWED THE CASE CAREFULLY AND WE FIND NO LEGAL BASIS FOR A
CONCLUSION DIFFERENT FROM THAT REACHED IN OUR DECISION OF JULY 27, 1959.
REGARDING INSPECTION OF THE MATERIAL, IT SEEMS CLEAR THAT, HAD A
REPRESENTATIVE OF YOUR FIRM INSPECTED THE DISPOSAL SITE BEFORE
SUBMITTING A BID, THE DISPARITY BETWEEN THE ADVERTISED SIZE OF THE
TUBING AND THE ACTUAL SIZE, OR THE SUITABILITY OF THE TUBING FOR ANY
CONTEMPLATED USE, WOULD HAVE BEEN APPARENT. HOWEVER THAT MAY BE, THE
EXPRESS DISCLAIMER OF WARRANTY PROVISIONS OF THE CONTRACT WOULD PRECLUDE
ANY ADJUSTMENT OF THE CONTRACT PRICE. IN THE CASE OF OVERSEAS
NAVIGATION CORPORATION V. UNITED STATES, 131 C.CLS. 70, THE COURT HELD
THAT THE TERMS OF THE SALE CONTRACT THERE UNDER CONSIDERATION, INCLUDING
THE "AS IS, WHERE IS" PROVISIONS, SPOKE FOR THEMSELVES AND THE PURCHASER
WAS LEGALLY BOUND BY THEM.
THE SUPREME COURT HAS CLEARLY STATED THE PRINCIPLE THAT IN THESE
CASES THE ONLY OBLIGATION OF THE GOVERNMENT IS TO ACT IN GOOD FAITH.
LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90; MAGUIRE AND CO. V.
UNITED STATES, 273 U.S. 67. IN OUR NUMEROUS DECISIONS ON COMPLAINTS
RECEIVED FROM PURCHASE OF GOVERNMENT SURPLUS PROPERTY WE HAVE CONSTANTLY
SOUGHT TO APPLY THAT CRITERION.
IN THE CIRCUMSTANCES, THERE BEING NO INDICATION THAT THE SUBJECT SALE
WAS CONDUCTED IN OTHER THAN GOOD FAITH, WE HAVE NO ALTERNATIVE BUT TO
SUSTAIN THE ACTION PREVIOUSLY TAKEN.
B-140102, AUG. 12, 1959
TO MISS FLORENCE SIMENHOFF:
YOUR LETTER OF JUNE 23, 1959, REQUESTS REVIEW OF OUR SETTLEMENT OF
MAY 28, 1959, WHICH DISALLOWED YOUR CLAIM FOR $175 WHICH, YOU SAY,
REPRESENTS THE UNAPPLIED BALANCE OF WAR BOND PAYROLL DEDUCTIONS AND CASH
DEPOSITS BY YOU PRIOR TO YOUR SEPARATION FROM SERVICE UNDER THE WAR
SHIPPING ADMINISTRATION AND THE UNITED STATES MARITIME COMMISSION.
CAREFUL CONSIDERATION HAS BEEN GIVEN YOUR CLAIM. HOWEVER, THE
PHOTOSTATIC COPY OF YOUR INDIVIDUAL EARNINGS RECORD DURING THE PERIOD IN
QUESTION, SEPTEMBER 1, 1944, THROUGH JUNE 30, 1945, SHOWS THAT PAYROLL
DEDUCTIONS TOTALING $860 WERE MADE FROM YOUR SALARY. THAT SUM PLUS THE
CASH DEPOSITS YOU MADE OF $25 AND $40 AMOUNTED TO $925. OF THAT SUM,
$750 WAS USED ON APRIL 30, 1945, TO ISSUE BOND NO. M-6,910,412-E TO
YOU. THE DEDUCTION OF $50 IN PAY PERIOD ENDING APRIL 30, 1945, WAS
COMBINED WITH THE $25 CASH DEPOSIT TO PROCURE BOND NO. C-91,758,867-E
($75) ON MAY 24, 1945. THE CASH DEPOSIT OF $40 BY YOU ON MAY 23, 1945
AND THE $60 DEDUCTION DURING PAY PERIOD ENDING MAY 31, 1945 (TOTALING
$100) WERE "REFUNDED" TO YOU, ACCORDING TO THE PAY RECORDS WE HAVE.
THEREFORE, AS THE RECORD, INCLUDING THE EXHIBITS FURNISHED BY YOU,
DOES NOT INDICATE THAT ANY AMOUNT IS DUE YOU, WE CAN ONLY SUSTAIN THE
DISALLOWANCE OF YOUR CLAIM.
B-135770, AUG. 11, 1959
TO CENTRAL OF GEORGIA RAILWAY COMPANY:
FURTHER REFERENCE IS MADE TO THE REQUEST IN YOUR LETTER OF APRIL 6,
1959, FOR RECONSIDERATION OF THE SETTLEMENTS ISSUED ON YOUR BILLS
N-22347, 23190, 23191, AND 24082-G-A, COVERING SEVERAL SHIPMENTS OF M-5
AND M-9-A-1 HALF-TRACK VEHICLES WHICH MOVED IN TRANSPORTATION FROM LIMA,
OHIO, TO FORT BENNING JUNCTION, GEORGIA, DURING 1943. THIS MATTER WAS
THE SUBJECT OF OUR DECISION OF SEPTEMBER 23, 1958, B-135770, AFFIRMED BY
OUR B-135770 OF FEBRUARY 4, 1959.
IN AGAIN REASSERTING YOUR VIEW THAT THE GREATER MINIMUM WEIGHT IS
APPLICABLE FOR THE COMPUTATION OF THE FREIGHT CHARGES ON THESE
SHIPMENTS, YOU CONTEND THAT THE ONLY DISTINCTION BETWEEN THE RATINGS
NAMED IN ITEMS 34581 AND 43812 OF CONSOLIDATED FREIGHT CLASSIFICATION 15
RESTS ON THE PRESENCE OR ABSENCE OF GUNS IN THE SHIPMENT. YOU ALSO
INVITE OUR ATTENTION TO AN ASSERTED CONFLICT BETWEEN THE DETERMINATION
MADE ON THE SHIPMENTS HERE INVOLVED AND THE DETERMINATION MADE AS TO
THOSE CONSIDERED UNDER OUR FILE B-121682, WHICH INVOLVED QUESTION AS TO
THE EFFECT OF RULE 18 IN THE CLASSIFICATION OF SHIPMENTS COMPRISED OF
HALF-TRACK VEHICLES AND BOMED MACHINE GUNS.
WHILE YOU INDICATE A CONCURRENCE WITH THE STATEMENT IN OUR FILE
B-121682 THAT THE AFFIXING OF GUNS WOULD NOT CHANGE THE COMMODITY
DESCRIPTION OF THE ITEM SHIPPED FROM A HALF-TRACK VEHICLE TO A
COMBINATION ARTICLE RATABLE IN ACCORDANCE WITH RULE 18, YOU NOW TAKE
ISSUE WITH A STATEMENT MADE IN FILE B-135770 AS TO THE BASIC DIFFERENCE
EXISTING BETWEEN HALF-TRACK VEHICLES DESIGNED AS PERSONNEL CARRIERS AND
HALF-TRACK VEHICLES DESIGNED AS ORDNANCE EQUIPMENT. THE ISSUE WHICH YOU
RAISE, HOWEVER, DOES NOT SEEM RELEVENT IN RESOLVING THE PROPER CHARGES
APPLICABLE ON THE SHIPMENTS HERE UNDER CONSIDERATION SINCE THE OFFICE OF
THE CHIEF OF ORDNANCE HAS STATED IN A LETTER ADDRESSED TO OUR OFFICE
THAT IT WAS NOT THE PRACTICE OF THE LIMA TANK DEPOT TO SHIP HALF-TRACK
VEHICLES OF THIS DESCRIPTION WITH GUNS MOUNTED, AND ITEM 34581
SPECIFICALLY IS APPLICABLE ONLY TO "HALF TRACKS, ARMY, WITH GUNS MOUNTED
THEREON * * *.' MOREOVER, AS WE PREVIOUSLY STATED CONCERNING THESE
SHIPMENTS, THE DEPARTMENT OF THE ARMY HAS ADVISED THAT THEIR RECORDS
SHOW THAT STANDARD ARMAMENT WAS NOT INCLUDED WITH THE SHIPMENTS.
REGARDING YOUR ASSERTION THAT OUR DECISIONS BOTH CONFIRM AND DENY
THAT GUNS WERE INCLUDED WITH THE SHIPMENTS, IT MUST BE POINTED OUT THAT
THE DETERMINATION MADE IN EACH INSTANCE WAS NECESSARILY PREMISED ON THE
FACTUAL INFORMATION OF RECORD SURROUNDING THE PARTICULAR SHIPMENTS UNDER
CONSIDERATION. IT WILL BE OBSERVED THAT THE SHIPMENTS MOVED FROM
DIFFERENT ORIGINS TO DIFFERENT DESTINATIONS AND CONSISTED OF DIFFERENT
MODELS OF THE HALF-TRACK VEHICLES.
ACCORDINGLY, AND SINCE YOUR LETTER FAILS TO DISCLOSE ANY ADDITIONAL
INFORMATION NOT PREVIOUSLY CONSIDERED, THE CONCLUSION IN OUR DECISIONS
OF SEPTEMBER 23, 1958, AND FEBRUARY 4, 1959, IS REAFFIRMED AND FURTHER
SIMILAR CORRESPONDENCE--- NOT CONTAINING ANY NEW AND MATERIAL
EVIDENCE--- WOULD APPEAR TO SERVE NO USEFUL PURPOSE.
B-139149, AUG. 11, 1959
TO MR. HANS MARKO:
REFERENCE IS MADE TO YOUR LETTER DATED JUNE 24, 1959, REQUESTING
RECONSIDERATION OF OUR DECISION OF JUNE 4, 1959, WHICH DISALLOWED YOUR
CLAIM FOR $5,544.31, AS ADDITIONAL AMOUNTS ALLEGED DUE UNDER CONTRACT
NO. HAT/1/-320, DATED AUGUST 23, 1950.
ON SEPTEMBER 18, 1951, YOU EXECUTED A FULL RELEASE OF YOUR CLAIMS FOR
A PAYMENT OF 2,257 SCHILLINGS. YOU NOW CONTEND THAT THE RELEASE HAD
REFERENCE ONLY TO THE 2,257 SCHILLINGS. ALSO, YOU STATED THAT HAD YOU
KNOWN OF THE CONTENTS OF THIS RELEASE YOU WOULD NOT HAVE SIGNED IT AND
THAT YOU SIGNED IT UNDER PRESSURE.
THE RECORD BEFORE OUR OFFICE DOES NOT AGREE WITH YOUR CONTENTIONS.
IT APPEARS THAT AFTER YOU HAD RECEIVED SEVERAL PAYMENTS PRIOR TO THE
CANCELLATION OF THE CONTRACT THERE ENSUED A SHARP DISAGREEMENT AS TO THE
BALANCE DUE, WHICH LED TO A CONFERENCE ATTENDED BY YOU IN SALZBURG ON
SEPTEMBER 18, 1951. AT THAT TIME YOU SIGNED THE RELEASE IN QUESTION.
IT IS CLEAR FROM THE LANGUAGE OF THE RELEASE THAT YOU RENOUNCED ALL
RIGHTS TO FURTHER MONEY PAYMENTS UNDER THE CONTRACT. SINCE THE RELEASE
WAS WRITTEN IN THE GERMAN LANGUAGE, WE ASSUME YOU MUST HAVE UNDERSTOOD
WHAT WAS SAID THEREIN. THERE IS NO EVIDENCE THAT ANY PRESSURE WAS PUT
UPON YOU TO SIGN THE INSTRUMENT. IT HAS BEEN HELD MANY TIMES BY THE
COURTS AND THE ACCOUNTING OFFICERS OF THE UNITED STATES GOVERNMENT THAT
THE EXECUTION OF A RELEASE PRECLUDES A CONTRACTOR FROM THEREAFTER
PRESENTING ANY CLAIM ARISING OUT OF THE TRANSACTION INVOLVED, EXCEPT
SUCH CLAIMS AS MAY HAVE BEEN SPECIFICALLY EXCEPTED BY THE TERMS OF THE
RELEASE. SEE UNITED STATES V. WM. CRAMP AND SONS SHIP AND ENGINE
BUILDING COMPANY, 206 U.S. 118; C. R. WILSON BODY COMPANY V. UNITED
STATES, 59 C.CLS. 611; BEIN V. UNITED STATES, 101 C.CLS. 144; 23
COMP. GEN. 632; 25 ID. 893.
B-139564, AUG. 11, 1959
TO STEIN AND SHOSTAK:
THIS REFERS TO LETTER (AND ENCLOSURE) OF YOUR CLIENTS, U.S. WIPING
MATERIALS CORP. AND J. ROSENBERG, DATED NOVEMBER 27, 1957, MAKING CLAIM
FOR THE PROCEEDS OF CERTAIN CUSTOMS REFUND CHECKS (LISTED BELOW) AND TO
YOUR CORRESPONDENCE AND ENCLOSURES IN CONNECTION THEREWITH.
THE CHECKS ARE AS FOLLOWS:
TABLE
CHECK NO. DATE AMOUNT PAYEE 30,101,614
$13,607.58 W. X. HUBER AND CO. 30,121,340 12-11-56
HUBER CO.
THESE CHECKS REPRESENT REFUNDS OF EXCESSIVE CUSTOMS DUTIES PAID ON 61
CUSTOMS ENTRIES FILED BY CUSTOMHOUSE BROKER W. X. HUBER IN THE NAME OF
W. X. HUBER CO., FOR THE ACCOUNT OF THE ACTUAL OWNERS (ULTIMATE
CONSIGNEES) JOE ROSENBERG (5 ENTRIES) AND U.S. WIPING MATERIALS CORP.
(56 ENTRIES). THE ENTRIES WERE RELIQUIDATED PURSUANT TO JUDGMENTS OF
THE UNITED STATES CUSTOMS COURT IN ABSTRACT DECISIONS NOS. 60095 (37
CUST.CT. 286) AND 60163 (37 CUST.CT. 310). WITH THE EXCEPTION OF 6
ENTRIES NO OWNER'S DECLARATIONS WERE FILED AND THE OWNER'S DECLARATIONS
WERE NOT TIMELY FILED AS TO THE 6 ENTRIES.
IN ADDITION TO THE CHECKS REFERRED TO ABOVE, WE ALSO HAVE CUSTOMS
REFUND CHECK NO. 10,924,860, ISSUED NOVEMBER 27, 1957, IN THE AMOUNT OF
$180 PAYABLE TO THE ORDER OF W. X. HUBER CO., IN CONNECTION WITH ENTRY
NO. 2538 OF SEPTEMBER 20, 1939. IT APPEARS FROM THE RECORD BEFORE US
THAT U.S. WIPING MATERIALS CORP. WAS THE PLAINTIFF IN THE UNITED STATES
CUSTOMS COURT IN CONNECTION WITH THE ENTRY NO. 2538 UNDER PROTEST NO.
17270-K/30897, IN COTTON PRODUCTS CORPORATION ET AL. V. UNITED STATES,
DECIDED AUGUST 16, 1956 (ABSTRACT DECISION NO. 60173). LAWRENCE AND
TUTTLE, LOS ANGELES, CALIFORNIA, APPEAR AS ATTORNEYS OF RECORD FOR THE
PLAINTIFFS. ACCORDINGLY, INSTRUCTIONS ARE BEING ISSUED TODAY TO OUR
CLAIMS DIVISION TO TRANSMIT CHECK NO. 10,924,860, PROPERLY ENDORSED, TO
U.S. WIPING MATERIAL CORP.
IT APPEARS FROM THE RECORD BEFORE US THAT THE PLAINTIFF IN THE ABOVE
CITED CUSTOMS COURT ACTIONS IN CONNECTION WITH THE ENTRIES INVOLVED IN
YOUR CLIENTS' CLAIMS WAS W. X. HUBER CO., AND AS INDICATED ABOVE THE
BUREAU OF CUSTOMS HAD THE REFUND CHECKS DRAWN PAYABLE TO W. X. HUBER
CO., AS NOMINAL CONSIGNEES AND OWNER OF RECORD, PURSUANT TO CUSTOMS LAWS
AND REGULATIONS.
THE RECORD DISCLOSES THAT THE CHECKS WERE MAILED IN THE CARE OF THE
COLLECTOR OF CUSTOMS AT LOS ANGELES, CALIFORNIA, IN ACCORDANCE WITH MR.
HUBER'S REQUEST. J. ROSENBERG, BY LETTER DATES DECEMBER 5, 1956, ON
BEHALF OF HIMSELF AND U.S. WIPING MATERIALS CORP. REQUESTED W. X. HUBER
TO ENDORSE OVER TO THE CORPORATION AND/OR HIMSELF THE REFUND CHECKS
BEING HELD IN THE OFFICE OF COLLECTOR OF CUSTOMS OF LOS ANGELES, SINCE
THE DUTIES WERE PAID BY J. ROSENBERG OR THE CORPORATION ON THE
MERCHANDISE INVOLVED, WHICH WAS OWNED BY ONE OR THE OTHER OF THE PARTIES
AND NEITHER WERE INDEBTED TO W. X. HUBER. BY LETTER DATED DECEMBER 14,
1956, TO THE U.S. WIPING MATERIALS CORP. AND MR. J. ROSENBERG, MR. HUBER
ALLEGED HE WAS ENTITLED TO 25 PERCENT OF THE REFUNDS BUT THAT HE DID NOT
INTEND TO HOLD ANY FUNDS BELONGING TO MR. ROSENBERG OR THE CORPORATION.
MR. ROSENBERG AND THE CORPORATION DENY THAT THERE IS ANY BASIS FOR MR.
HUBER'S CLAIM AND APPARENTLY REQUESTED THAT THE BUREAU OF CUSTOMS
FORWARD THE MATTER HERE FOR SETTLEMENT BY US, WHICH THE BUREAU DID BY
LETTER DATED MARCH 27, 1959.
NUMEROUS REASONS WERE ADVANCED BY YOU AND YOUR CLIENTS IN YOUR
EARLIER CORRESPONDENCE AS TO (1) WHY PAYMENTS SHOULD NOT BE MADE TO MR.
HUBER, AND (2) WHY PAYMENTS SHOULD BE MADE TO YOUR CLIENTS.
GENERALLY THE BASIS SET FORTH FOR NOT MAKING PAYMENT TO MR. HUBER I
THAT YOUR CLIENTS ARE NOT INDEBTED TO HIM AND THAT HE WILL NOT PAY OVER
THE CUSTOMS REFUNDS TO YOUR CLIENTS IF PAYMENT IS MADE TO HIM; AND THE
BASIS FOR PAYMENT TO YOUR CLIENTS IS THAT THEY WERE THE ACTUAL OWNERS OF
THE MERCHANDISE AND HAD PAID ALL CUSTOMS DUTIES DUE THEREON.
SUBSEQUENTLY BY LETTER DATED APRIL 3, 1959, YOU REQUESTED A
CONFERENCE CONCERNING THE MATTER WITH REPRESENTATIVES OF THIS OFFICE,
AND THE CONFERENCE WAS HELD ON APRIL 16, 1959. DURING THE CONFERENCE
YOU INDICATED THAT MR. HUBER HAD DIED AND YOU REQUESTED THAT WE WITHHOLD
ACTION ON THE CASE FOR 30 DAYS SO THAT YOU COULD PETITION THE CUSTOMS
COURT FOR AN AMENDED JUDGMENT. WE AGREED TO COMPLY WITH YOUR REQUEST.
IN LETTER DATED MAY 8, 1959, YOU STATED YOU HAD FILED THE NECESSARY
PLEADINGS WITH THE UNITED STATES CUSTOMS COURT AT NEW YORK AND HAD
APPLIED FOR CLARIFICATION OF THE "JUDGMENT ORDER.' BY LETTER DATED MAY
21, 1959, YOU ADVISED US IN PERTINENT PART AS FOLLOWS:
"PURSUANT TO THE PROCEEDINGS INITIATED BY ME BEFORE THE UNITED STATES
CUSTOMS COURT IN APRIL OF THIS YEAR, OF WHICH I INFORMED YOU IN MY
LETTER OF MAY 8, THAT COURT HAS NOT ISSUED ITS ORDER DATED MAY 18, 1959,
CORRECTING NUNC PRO TUNC, ITS JUDGMENT ORDER OF JULY 5, 1956, FROM WHICH
THE REFUNDS THE SUBJECT OF THIS CLAIM STEM, TO SHOW IN FULL THE NAMES OF
THE TRUE PARTIES PLAINTIFF. COPY OF THE COURT ORDER OF MAY 18, 1959, IS
ATTACHED HERETO, TOGETHER WITH COPY OF THE DECISION, SCHEDULE OF ENTRIES
AND JUDGMENT ORDER OF JULY 5, 1956, TO WHICH IT RELATES. THIS JUDGMENT,
AS CORRECTED, COVERS ALL BUT THREE OF THE ENTRIES THE SUBJECT OF THE
ABOVE CLAIM.
"ALSO ENCLOSED IS COPY OF CERTIFIED COPY OF JUDGMENT ORDER OF THE
UNITED STATES CUSTOMS COURT DATED AUGUST 16, 1956 IN THE MATTER OF J.
ROSENBERG V. UNITED STATES, PROTEST NO. 594425-G/8, TC., WHICH COVERS
THE THREE REMAINING ENTRIES (OF J. ROSENBERG) THE SUBJECT OF THE ABOVE
CLAIM, AS FOLLOWS:
TABLE
"ENTRY NO. DATE OF ENTRY AMOUNT REFUNDED D.E
6-21-32 $ 85.50 D.E. 1060 8-16-32
3085 11-10-32 112.50
"ON THE BASIS OF THE RECORD NOW BEFORE YOU, IT IS RESPECTFULLY
REQUESTED THAT THE REFUNDS THE SUBJECT OF THE ABOVE CLAIMS BE ISSUED IN
ACCORDANCE WITH THE CLAIMS OF MY CLIENTS AND THE JUDGMENT ORDERS OF THE
UNITED STATES CUSTOMS COURT, TO THE TRUE PARTIES PLAINTIFF, J.
ROSENBERG AND U.S. WIPING MATERIALS CORPORATION, WHO ACTUALLY PAID THE
DUTIES, AND WHO ARE NAMED IN THE JUDGMENT ORDERS OF THE UNITED STATES
CUSTOMS COURT. THIS DISPOSITION OF THE MATTER WOULD BE CONSISTENT WITH
THE DETERMINATION MADE BY YOUR OFFICE IN 1953 IN THE CASE OF T. W. HOLT
AND CO., WHEREIN THE JUDGMENT ORDER OF THE UNITED STATES CUSTOMS COURT
WAS IN THE NAME OF T. W. HOLT AND CO., TO WHOM PAYMENT OF THE REFUNDS
WAS AUTHORIZED BY THE GENERAL ACCOUNTING OFFICE, NOTWITHSTANDING THAT
THE ENTRIES WERE MADE IN THE NAME OF HIS CUSTOM HOUSE BROKER AND THAT NO
OWNER'S DECLARATIONS HAD BEEN FILED.'
THE CERTIFIED COPY OF JUDGMENT ORDER OF THE UNITED STATES CUSTOMS
COURT, DATED AUGUST 16, 1956, IS NOT "IN THE MATTER OF J. ROSENBERG V.
UNITED STATES," AS STATED IN YOUR LETTER BUT IS IN THE MATTER OF J.
ROSENBERG ET AL. V. UNITED STATES, PROTEST NO. 594425-G/8 ETC., AND THE
SCHEDULE OF PROTESTS ANNEXED TO THE JUDGMENT ORDER OF THE COURT SHOWS
THAT W. X. HUBER CO. WAS THE PLAINTIFF IN QUESTION IN CONNECTION WITH
THE THREE ENTRIES CITED IN YOUR LETTER.
A COPY OF THE UNITED STATES CUSTOMS COURT ORDER, DATED MAY 18, 1959,
DISCLOSES THAT THE ORDER CORRECTED THE JUDGMENT ORDER ENTERED JULY 5,
1956 (ABSTRACT DECISION NO. 60095, 37 CUST.CT. 6),"NUNC PRO TUNC TO
SHOW THE FULL NAME OF THE PARTIES PLAINTIFF AS "W. X. HUBER CO. A/C
U.S. WIPING MATERIALS CORP. ET AL., " AS SET OUT ON THE STIPULATION OF
SUBMISSION.' MAY 18 ORDER ALSO CORRECTED THE SCHEDULE OF ENTRIES
ATTACHED TO THE SAID DECISION "NUNC PRO TUNC TO SHOW THE FULL NAMES OF
THE PARTIES PLAINTIFF AS SET OUT IN THE STIPULATION OF SUBMISSION, TO
WIT, AS "W. X. HUBER CO. A/C U.S. WIPING MATERIALS CORP.' IN ALL OF
THE ENTRIES COVERED BY THE SAID SCHEDULE," WITH THE EXCEPTION OF THE
LAST THREE "WHEREIN THE FULL NAME OF THE PLAINTIFF BE AND THE SAME IS
HEREBY CORRECTED NUNC PRO TUNC TO READ "W. X. HUBER CO. A/C J.
ROSENBERG.' "
AMENDING THE JUDGMENT IN THE MANNER INDICATED WOULD APPEAR MERELY TO
SET FORTH SPECIFICALLY THAT THE CUSTOMS REFUNDS TO BE PAID W. X. HUBER
CO. ARE FOR THE ACCOUNT OF U.S. WIPING MATERIALS CORP. OR J. ROSENBERG,
AS THE CASE MAY BE. IN VIEW OF THE RELATIONSHIP BETWEEN THE PARTIES W.
X. HUBER CO. WOULD HAVE BEEN OBLIGED TO ACCOUNT TO YOUR CLIENTS FOR THE
REFUNDS, EVEN THOUGH THE JUDGMENT WERE NOT CORRECTED. SEE 19 C.F.R.
31.10 (K) (1). IN OTHER WORDS W. X. HUBER CO. WOULD HAVE BEEN
ACCOUNTABLE TO THE U.S. WIPING MATERIALS CORP. OR J. ROSENBERG FOR ANY
MONEY PAID IT UNDER THE ORIGINAL JUDGMENT. ANY CHECKS COVERING THE
CUSTOMS REFUNDS DUE PURSUANT TO THE AMENDED JUDGMENT ORDER WOULD SHOW
THE PAYEE TO BE "W. X. HUBER CO. A/C U.S. WIPING MATERIALS CORP.' OR
"W. X. HUBER CO. A/C J. ROSENBERG," AS THE CASE MAY BE.
YOU CONTEND THAT PAYMENT OF THE PROCEEDS OF THE CHECKS TO YOUR CLIENT
WOULD BE CONSISTENT WITH OUR DETERMINATION IN THE CASE OF T. W. HOLT
AND COMPANY, WHEREIN THE JUDGMENT ORDER OF THE UNITED STATES CUSTOMS
COURT WAS IN THE NAME OF THAT COMPANY. YOU SAY THAT WE AUTHORIZED
PAYMENT OF THE CUSTOMS REFUNDS TO THE SAID COMPANY, NOTWITHSTANDING THAT
THE ENTRIES WERE MADE IN THE NAME OF HIS
CUSTOMHOUSE BROKER AND THAT NO OWNER'S DECLARATION HAD BEEN FILED.
THE CASE OF T. W. HOLT AND COMPANY V. UNITED STATES, 41 C.C.P.A.
(CUSTOMS) 8, IS DISTINGUISHABLE FROM THE INSTANT CASE. IN THAT CASE THE
ACTUAL OWNER, T. W. HOLT AND COMPANY, WAS THE PLAINTIFF IN THE CUSTOMS
COURT PROCEEDING AND THE NOMINAL CONSIGNEE WAS NOT A PARTY THERETO.
HENCE, THE JUDGMENT IN THAT CASE WAS IN FAVOR OF T. W. HOLT AND COMPANY
AND THEREFORE WE MADE REFUND OF THE EXCESS CUSTOMS DUTIES IN ACCORDANCE
WITH THE JUDGMENT OF THE CUSTOMS COURT. HOWEVER, IN THE INSTANT CASE
JUDGMENT WAS ORIGINALLY IN FAVOR OF W. X. HUBER CO. AND WAS
SUBSEQUENTLY CORRECTED IN FAVOR OF W. X. HUBER CO. A/C U.S. WIPING
MATERIALS CORP. OR J. ROSENBERG, ACCORDING TO THE ENTRIES AND PROTESTS
INVOLVED. AS INDICATED ABOVE IT IS OUR VIEW THAT
PAYMENT MAY NOT BE MADE TO THE U.S. WIPING MATERIALS CORP. OR J.
ROSENBERG, BUT INSTEAD MUST BE MADE TO W. X. HUBER CO., IN ACCORDANCE
WITH THE AMENDED JUDGMENT.
IT IS CLEAR FROM THE FOREGOING THAT ON THE PRESENT RECORD WE MAY NOT
PAY THE CUSTOMS REFUNDS IN QUESTION TO YOUR CLIENTS EXCEPT FOR THE
PROCEEDS OF CHECK NO. 10,924,860, SINCE NEITHER WOULD BE QUALIFIED TO
GIVE A GOOD ACQUITTANCE TO THE UNITED STATES.
CONCERNING PAYMENT TO W. X. HUBER CO., YOUR LETTER INDICATES THAT W.
X. HUBER, ALSO KNOWN AS W. X. HUBER AND W. X. HUBER CO., IS NOW
DECEASED. IT APPEARS THAT W. X. HUBER CONDUCTED HIS CUSTOMHOUSE
BROKERAGE BUSINESS UNDER THE NAME AND IN THE STYLE OF W. X. HUBER CO.
W. X. HUBER THROUGH HIS ATTORNEYS BY LETTER DATED JULY 9, 1957,
REQUESTED PAYMENT BE MADE TO HIM. HOWEVER, THE POWER OF ATTORNEY GIVEN
BY W. X. HUBER TO HIS ATTORNEYS WOULD BE TERMINATED BY MR. HUBER'S
DEATH, IF IN FACT HE IS DECEASED, AND WE HAVE NO CLAIM BEFORE US FROM A
LEGAL REPRESENTATIVE OF MR. HUBER'S ESTATE. THEREFORE, WE WILL RETAIN
THE CUSTOMS REFUND CHECKS HERE.
IF WITHIN A REASONABLE TIME YOU ADVISE US THAT YOU ARE TAKING
APPROPRIATE ACTION TO OBTAIN A COURT ORDER OR DECREE TO THE EFFECT THAT
YOUR CLIENTS, RATHER THAN W. X. HUBER CO., ARE ENTITLED TO THE REFUNDS
OF THE EXCESS CUSTOMS DUTIES OR THE PROCEEDS OF THE CHECKS, OR THAT A
PUBLIC ADMINISTRATOR, OR YOUR CLIENTS, HAVE OBTAINED LETTERS OF
ADMINISTRATION IN CONNECTION WITH MR. HUBER'S ESTATE, PURSUANT TO
SECTION 422, PROBATE CODE ANNOTATED, DEERING'S CALIFORNIA CODE, WE WILL
HOLD THE MATTER IN ABEYANCE PENDING THE OUTCOME OF THE COURT
PROCEEDINGS, OR, IN CASE LETTERS OF ADMINISTRATION HAVE BEEN OBTAINED, A
CLAIM FROM THE PERSON APPOINTED ADMINISTRATOR TOGETHER WITH PROOF OF HIS
APPOINTMENT.
B-139812, AUG. 11, 1959
TO MR. RAMON C. JOSEF:
ON JULY 20, 1959, YOU WROTE AGAIN CONCERNING THE DISALLOWANCE OF YOUR
CLAIM FOR RETROACTIVE ADJUSTMENT OF SALARY FOR THE PERIOD OF YOUR
EMPLOYMENT WITH THE DEPARTMENT OF THE AIR FORCE IN THE PHILIPPINES.
IN OUR LETTER DATED JULY 1, 1959, TO YOU, WE AFFIRMED THE
DISALLOWANCE ON THE BASIS THAT THE AIR FORCE REGULATIONS IN EFFECT ON
OCTOBER 5, 1952, THE DATE OF THE PROMOTION ON WHICH YOUR CLAIM IS BASED,
PROVIDED FOR RESTORATION TO A HIGHER PREVIOUSLY HELD STEP RATE ONLY IF
THE EARLIER CHANGE TO A LOWER GRADE HAD BEEN IN LIEU OF SEPARATION FOR
REDUCTION IN FORCE OR BY DISPLACEMENT, NEITHER OF WHICH WAS INVOLVED IN
YOUR CASE. WE POINTED OUT ALSO THAT THE FEDERAL PERSONNEL MANUAL, PART
25, Z-1-319, SECTION 25-103 (B) (1) AND PUBLIC LAW 594 APPROVED JUNE 18,
1956, APPLY ONLY TO POSITIONS UNDER THE CLASSIFICATION ACT OF 1949 AS
AMENDED AND THAT FOR PAY ADJUSTMENT PURPOSES POSITIONS SUCH AS YOURS
OCCUPIED BY NON-CITIZENS ARE CONSIDERED WAGE BOARD POSITIONS NOT UNDER
THE CLASSIFICATION ACT.
YOU ARE APPARENTLY UNDER THE MISTAKEN IMPRESSION THAT THE AIR FORCE
REGULATIONS WHICH WE RELIED ON IN OUR REVIEW OF YOUR CLAIM (PARAGRAPH
13C, CHAPTER P-9.7, AFM 40-1), WAS DATED MARCH 24, 1954,
AND WOULD NOT COVER THE PERSONNEL ACTION DATED OCTOBER 5, 1952. THE
REGULATION ON WHICH WE RELIED, HOWEVER, WAS CLEARLY CITED IN OUR LETTER
TO YOU AS BEING DATED JULY 18, 1951.
WE FIND NO MERIT TO YOUR CONTENTION IN YOUR LAST LETTER THAT TO
CONSIDER POSITIONS SUCH AS YOURS OCCUPIED BY NON-CITIZENS AS WAGE BOARD
POSITIONS NOT UNDER THE CLASSIFICATION ACT WOULD BE IN CONFLICT WITH
PROVISIONS INCLUDED IN VARIOUS MILITARY APPROPRIATION ACTS AS FOLLOWS:
"PROVISIONS OF LAW PROHIBITING THE PAYMENT OF COMPENSATION TO, OR
EMPLOYMENT OF, ANY PERSON NOT A CITIZEN OF UNITED STATES SHALL NOT APPLY
TO PERSONNEL OF THE NATIONAL MILITARY ESTABLISHMENT.'
TO CONSIDER POSITIONS OCCUPIED BY NON-CITIZENS AS WAGE BOARD
POSITIONS DOES NOT HAVE THE EFFECT OF DENYING PAYMENT OF COMPENSATION TO
SUCH NON-CITIZENS AND THEREFORE THE PROVISION OF LAW QUOTED ABOVE AND IN
YOUR LETTER HAS NO BEARING ON YOUR CASE.
YOUR ALLEGATION, EVEN IF PROVED, THAT THE DEPARTMENT OF THE AIR FORCE
EXTENDED THE BENEFITS OF SECTION 25-103 (B) (1) OF THE FEDERAL PERSONNEL
MANUAL TO ONE EMPLOYEE, MR. DOMINGO SUBIA, DOES NOT JUSTIFY THE
ALLOWANCE OF YOUR CLAIM ALTHOUGH SUCH ACTION ON THE PART OF THE
DEPARTMENT OF THE AIR FORCE MIGHT GIVE RISE TO A CLAIM BY THE UNITED
STATES AGAINST MR. SUBIA FOR OVERPAYMENT OF SALARY.
CONCERNING YOUR REQUEST THAT WE HELP YOU "REFER THIS TO THE U.S.
COURT OF CLAIMS," WE MUST ADVISE THAT WE HAVE NO AUTHORITY TO TAKE SUCH
ACTION. OUR JURISDICTION TO SETTLE CLAIMS AGAINST THE GOVERNMENT IS
INDEPENDENT OF THE JURISDICTION OF THE COURT OF CLAIMS BUT WE KNOW OF NO
REASON WHY YOU COULD NOT FILE A PETITION IN THAT COURT IF YOU SO DESIRE.
B-140053, AUG. 11, 1959
TO FLEET STORAGE CORPORATION:
REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 29, 1959, PROTESTING
THE ACTION OF THE DEPARTMENT OF THE NAVY IN AWARDING CONTRACTS TO OTHERS
THAN YOUR CONCERN UNDER INVITATIONS NOS. B-211-59-131 AND B-212-59-131.
THE ADMINISTRATIVE REPORT REQUESTED OF THE DEPARTMENT OF THE NAVY ON
THOSE MATTERS HAS NOW BEEN RECEIVED. ON INVITATION NO. B-211-59-131
YOU LISTED YOUR FIRST CHOICE OFFERING TO PURCHASE ALL FIVE VESSELS FOR
$176,099. YOUR SECOND CHOICE OFFERED TO PURCHASE FOUR VESSELS, YOUR
THIRD CHOICE THREE VESSELS, AND SO DOWN THE LINE. THEN YOUR BID FOR
EACH INDIVIDUAL VESSEL WAS $36,290. AFTER EACH CHOICE YOU STATED "DO
NOT USE OUR OWN INDIVIDUAL BIDS AGAINST US.' THE SAME PATTERN WAS USED
ON INVITATION NO. B-212-59-131.
UNDER PARAGRAPH 3 OF BOTH INVITATIONS TO BID THE GOVERNMENT RESERVED
THE RIGHT TO ACCEPT A BID ON ANY ONE OR GROUP OF ITEMS AS MIGHT BE IN
THE BEST INTEREST OF THE GOVERNMENT.
IN EVALUATING THE BIDS RECEIVED, THE DEPARTMENT OF THE NAVY
CONSIDERED THAT THE HIGH BID OF $37,333.33, SUBMITTED BY PHILLIPS WALKER
SALES COMPANY ON ITEM 1, SALES INVITATION B-211-59-131, WAS ACCEPTABLE.
THE EFFECT OF THIS EXERCISE OF CHOICE WAS TO ELIMINATE THE FIRST
ALTERNATIVE OF YOUR BID. SIMILARLY, ON ITEM 5, THE BID OF $38,666 WAS
CONSIDERED ACCEPTABLE, THUS ELIMINATING THE SECOND ALTERNATIVE OF YOUR
BID. THE THIRD ALTERNATIVE OF YOUR BID, OFFERING TO PURCHASE ANY THREE
VESSELS FOR $101,789, WAS ACCEPTABLE TO THE GOVERNMENT. IN THIS MANNER
THE GOVERNMENT OBTAINED THE HIGHEST MONETARY RETURN WITHOUT IN ANY WAY
DISTURBING THE ORDER OF CHOICE AS CONTAINED IN YOUR BID, AND YOUR BID ON
INDIVIDUAL VESSELS WAS NOT USED AGAINST YOU.
EVALUATION OF BIDS UNDER INVITATION TO BID B-212-59-131 WAS CONDUCTED
ON THE SAME BASIS.
THE ABOVE DESCRIBED METHOD OF EVALUATION REFLECTS A TOTAL NET RETURN
OF $12,029 GREATER THAN THE COMBINED FIRST CHOICE BID OF YOUR CONCERN.
FOR THE REASONS ABOVE INDICATED, OUR OFFICE WOULD NOT BE JUSTIFIED IN
OBJECTING TO THE ACTION TAKEN BY THE DEPARTMENT OF THE NAVY IN THE
MATTER.
B-140199, AUG. 11, 1959
TO CAPTAIN WESLEY E. THOMAS, FC:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 3, 1959, REQUESTING DECISION
WHETHER PAYMENT IS AUTHORIZED ON AN ENCLOSED VOUCHER STATED IN FAVOR OF
SPECIALIST-4 (E-4) ARSINCE L. LOVING FOR THE DIFFERENCE BETWEEN PAY OF
AN E-4 WITH 14 YEARS' SERVICE UNDER THE ACT OF MAY 20, 1958, 72 STAT.
122 ($190 PER MONTH), AND "SAVED PAY" OF AN E-4 WITH 14 YEARS' SERVICE
($202.80 PER MONTH) FOR THE PERIOD JULY 22, 1958, TO MAY 31, 1959. THE
REQUEST HAS BEEN ALLOCATED DO NUMBER 433 BY THE DEPARTMENT OF DEFENSE
MILITARY PAY AND ALLOWANCE COMMITTEE.
IT APPEARS THAT ON APRIL 17, 1958, ARSINCE L. LOVING WAS SERVING AS A
SPECIALIST-4 (E-4) WITH 14 YEARS' SERVICE; THAT ON THAT DATE HE WAS
APPOINTED TO THE GRADE OF SPECIALIST-5 (E-5); THAT ON JULY 17, 1958,
THIS APPOINTMENT WAS DETERMINED TO BE ERRONEOUS, HAVING BEEN MADE IN
EXCESS OF AUTHORIZATION; AND THAT ON JULY 22, 1958, LOVING WAS REDUCED
TO THE GRADE OF SPECIALIST-4 (E-4). IT FURTHER APPEARS THAT
DETERMINATION HAS BEEN MADE UNDER PARAGRAPH 40 OF ARMY REGULATIONS
624-200, MAY 19, 1958, THAT LOVING IS ENTITLED TO RETAIN THE PAY OF AN
E-5 RECEIVED BY HIM DURING THE PERIOD APRIL 17, 1958, TO JULY 21, 1958,
ON THE BASIS THAT HE SERVED AS A DE FACTO MEMBER OF THAT GRADE DURING
THAT PERIOD.
THE ACT OF MAY 20, 1958, 72 STAT. 122, BECAME EFFECTIVE ON JUNE 1,
1958. SECTION 10 OF THAT ACT, 72 STAT. 130, PROVIDES IN PERTINENT PART
THAT:
"THE ENACTMENT OF THIS ACT SHALL NOT OPERATE TO REDUCE---
"/1) THE BASIC PAY OR RETIRED PAY TO WHICH A MEMBER OR FORMER MEMBER
OF A UNIFORMED SERVICE WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE
OF THIS ACT * * *.'
ON MAY 31, 1958, LOVING WAS SERVING DE FACTO AS AN E-5 UNDER AN
ERRONEOUS APPOINTMENT TO THAT GRADE. SINCE THE APPOINTMENT WAS
ERRONEOUS, HIS E-4 STATUS HAD NOT BEEN TERMINATED. AS AN E-4 HE
WAS ENTITLED, HAD HE BEEN SERVING ON ACTIVE DUTY IN THAT GRADE, TO
E-4 PAY. THE FACT THAT HE WAS NOT ACTUALLY IN RECEIPT OF SUCH PAY ON
MAY 31, 1958, DOES NOT EFFECT HIS RIGHT TO SAVED PAY. COMPARE 38 COMP.
GEN. 50; B-139150, JUNE 16, 1959.
ACCORDINGLY, LOVING IS ENTITLED BEGINNING JULY 22, 1958, TO THE SAVED
PAY OF AN E-4 WITH 14 YEARS' SERVICE, $202.80 PER MONTH. PAYMENT ON THE
VOUCHER WHICH IS RETURNED HEREWITH IS AUTHORIZED, IF OTHERWISE CORRECT.
B-140225, AUG. 11, 1959
TO BEN SADOFF IRON AND METAL COMPANY:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 30, 1959, REQUESTING
RECONSIDERATION OF SETTLEMENT DATED JUNE 19, 1959, WHICH DISALLOWED YOUR
CLAIM FOR REFUND OF AN UNSTATED AMOUNT AS OVERAGE IN WEIGHT DELIVERED ON
ITEM 22A UNDER CONTRACT NO. N228S-36225, DATED OCTOBER 27, 1958.
BY INVITATION NO. B-89-59-228 BIDS WERE REQUESTED FOR THE PURCHASE
FROM THE GOVERNMENT OF VARIOUS LOTS OF SCRAP MATERIALS. IN RESPONSE,
YOU SUBMITTED A BID OF $4,957.80 ON ITEM NO. 14 AND $15,679.95 ON ITEM
NO. 22A, THE ITEM UNDER DISPUTE, DESCRIBED IN THE INVITATION AS
CONSISTING OF ALL MATERIAL LISTED AND DESCRIBED IN ITEMS 20 AND 22,
INCLUSIVE, AMOUNTING TO 2,193 SHORT TONS. YOUR BID WAS ACCEPTED AS TO
BOTH ITEMS. THE RECORD DISCLOSES THAT YOU RECEIVED 2,298.321 SHORT TONS
UNDER ITEM NO. 22A FOR WHICH YOU PAID THE CONTRACT PRICE OF $7.15 PER
TON.
THE INVITATION CONTAINED THE "GENERAL SALE TERMS AND CONDITIONS," THE
PERTINENT PROVISIONS OF WHICH READ AS FOLLOWS:
2. CONDITION OF PROPERTY.--- ALL PROPERTY LISTED HEREIN IS OFFERED
FOR SALE "AS IS" AND ,WHERE IS," AND WITHOUT RECOURSE AGAINST THE
GOVERNMENT. * * * THE DESCRIPTION IS BASED ON THE BEST AVAILABLE
INFORMATION, BUT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY, OR
REPRESENTATION, EXPRESSED OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER,
QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF ANY OF THE PROPERTY, OR ITS
FITNESS FOR ANY USE OR PURPOSE, AND NO CLAIM WILL BE CONSIDERED FOR
ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE BASED UPON FAILURE
OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED; THIS IS NOT A
SALE BY SAMPLE.'
SUBSEQUENT TO DELIVERY, YOU ADVISED THE DISPOSAL AGENCY THAT THERE
WAS A VARIATION BETWEEN THE WEIGHT OF THE BOXES DELIVERED AND THE WEIGHT
SHOWN IN THE DESCRIPTION OF ITEM NO. 22 AND YOU CLAIMED AN ADJUSTMENT
FOR AN OVERAGE IN DUNNAGE WEIGHT OF 480,000 POUNDS BASED ON THE AVERAGE
WEIGHT OF BOXES REMOVED AND THE WEIGHT AS DESCRIBED IN THE INVITATION TO
BID. YOUR CLAIM WAS DENIED ADMINISTRATIVELY AND SUBSEQUENTLY FORWARDED
TO THE CLAIMS DIVISION OF OUR OFFICE WHERE IT WAS DISALLOWED BY THE
SETTLEMENT OF JUNE 19, 1959, FOR THE REASONS SET FORTH THEREIN.
IN REQUESTING REVIEW OF THE SETTLEMENT YOU STATE THAT THE METHOD IN
WHICH THE MATERIAL WAS STORED PREVENTED A THOROUGH INSPECTION PRIOR TO
BIDDING; THAT YOU WERE ADVISED THAT THE ACTUAL GROSS WEIGHT OF THE
BOXES DESCRIBED IN ITEM NO. 22 WAS 52 POUNDS EACH; AND THAT YOUR BID
WAS SUBMITTED ACCORDINGLY. IN THIS CONNECTION, YOU CONTEND THAT YOU
SHOULD NOT BE PENALIZED IF THE STOCK RECORDS DID NOT SHOW WHAT ACTUALLY
WAS IN THE WAREHOUSES.
IN DISPOSING OF SURPLUS MATERIALS THE GOVERNMENT IS NOT ENGAGED IN
NORMAL TRADE AND FREQUENTLY IS IGNORANT OF THE CONDITION, QUANTITY,
WEIGHT, ETC., OF THE GOODS IT SELLS. THAT FACT IS MADE KNOWN TO ALL
BIDDERS BY THE "AS IS" TERMS OF THE CONTRACT, QUOTED ABOVE.
FURTHERMORE, THE DESCRIPTION OF THE MATERIAL OFFERED FOR SALE IN THE
PRESENT CASE WAS BASED ON THE "BEST INFORMATION AVAILABLE" AND INCLUDED
THE STATEMENT THAT THE WEIGHT SHOWN WAS GROSS WEIGHT AND NO DEDUCTION
WOULD BE MADE FOR THE WEIGHT OF CONTAINERS. THUS, UNDER THE CLEAR TERMS
OF THE CONTRACT YOU AGREED TO ASSUME THE RISK AS TO THE WEIGHT OF THE
MATERIAL SOLD AS ONE OF THE ELEMENTS OF THE BARGAIN. IN THE CASE OF
OVERSEAS NAVIGATION CORPORATION V. UNITED STATES, 131 C.CLS. 70, THE
COURT HELD THAT THE TERMS OF THE SALE CONTRACT THERE UNDER
CONSIDERATION, INCLUDING ITS "AS IS, WHERE IS," PROVISIONS, SPOKE FOR
THEMSELVES AND THE PLAINTIFF WAS LEGALLY BOUND BY THEM.
THERE IS NO INDICATION IN THE PRESENT CASE THAT THE INVITATION WAS
NOT PREPARED IN GOOD FAITH OR THAT THERE WAS BETTER INFORMATION
AVAILABLE TO THE GOVERNMENT. THE MERE FACT THAT THE DISPOSAL OFFICER
MAY HAVE HAD AN ERRONEOUS UNDERSTANDING AS TO THE WEIGHT OF THE SURPLUS
MATERIAL DOES NOT ENTITLE YOU TO RELIEF. SEE HOOVER V. UTAH NURSERY
COMPANY, 7 F.2D 270.
ON THE BASIS OF THE FACTS AND EVIDENCE PRESENTLY OF RECORD, THERE
APPEARS TO BE NO LEGAL BASIS FOR AUTHORIZING A REFUND OF ANY PART OF THE
PURCHASE PRICE, OR FOR AUTHORIZING ANY ADJUSTMENT WHATEVER IN THE PRICE
FIXED IN THE CONTRACT FOR THE MATERIAL INVOLVED. ACCORDINGLY, THE
SETTLEMENT OF JUNE 19, 1959, IS SUSTAINED.
B-140282, AUG. 11, 1959
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED JULY 21, 1959, FROM THE ASSISTANT
SECRETARY (LOGISTICS), WITH ENCLOSURES, REQUESTING A DECISION AS TO THE
ACTION TO BE TAKEN WITH RESPECT TO AN ERROR ALLEGED BY KEYSTONE BOLT AND
NUT CORPORATION TO HAVE BEEN MADE IN ITS PROPOSAL ON WHICH CONTRACT NO.
(28-024) 59-0195, DATED JULY 31, 1958, IS BASED.
BY INVITATION DATED JUNE 24, 1958, BIDS WERE REQUESTED FOR FURNISHING
VARIOUS ITEMS OF SCREWS AND BOLTS IN ACCORDANCE WITH DESIGNATED
SPECIFICATIONS. IN RESPONSE, KEYSTONE BOLT AND NUT CORPORATION
SUBMITTED A BID INCLUDING A QUOTATION OF $3.65 C ON ITEM 9, THE ITEM IN
DISPUTE, DESCRIBED IN THE INVITATION AS "BOLT, MACHINE, HEX-HD, DRILLED
FOR LOCKING WIRE (3 HOLES), ALLOY STEEL, CAD PLATED, 1/4 - 28 UNF-3A X
1-5/32.' ONE OTHER BID WAS RECEIVED ON ITEM NO. 9--- THAT OF CENTURY
FASTENERS CORP. IN THE AMOUNT OF ?065 EACH.
FOLLOWING THE ACCEPTANCE OF ITS BID AND DELIVERY OF THE ITEM THE
KEYSTONE BOLT AND NUT CORPORATION, BY LETTER OF NOVEMBER 10, 1958,
ADVISED THAT AN ERROR HAD BEEN MADE IN ITS BID ON ITEM NO. 9; THAT A
TYPOGRAPHICAL ERROR IN THE PLACEMENT OF THE DECIMAL POINT HAD RESULTED
IN A QUOTATION OF $3.65 C INSTEAD OF $36.50 C; AND REQUESTED THAT THE
TOTAL PRICE OF $58.40 BE INCREASED TO $584, OR, IN ANY EVENT TO THE
AMOUNT OF THE NEXT LOWEST BID.
IT APPEARS FROM THE RECORD THAT THE CONTRACTOR MADE A MISTAKE IN ITS
BID, AS ALLEGED; HOWEVER, IT APPEARS FURTHER THAT, IN HIS CONSIDERATION
OF THE TWO BIDS RECEIVED, THERE WAS NOTHING TO PLACE
THE CONTRACTING OFFICER ON EITHER ACTUAL OR CONSTRUCTIVE NOTICE THA
KEYSTONE HAD MADE A MISTAKE IN ITS QUOTATION. FURTHERMORE, THE OTHER
BIDDER VERIFIED ITS BID PRICE OF ?065 AND INDICATED THAT IT COULD HAVE
PERFORMED AT THAT PRICE.
IN 20 COMP. GEN. 652 IT IS STATED:
"THE ESTABLISHED RULE IS THAT WHERE A BIDDER HAS MADE A MISTAKE IN
THE SUBMISSION OF A BID AND THE BID HAS BEEN ACCEPTED, HE MUST BEAR THE
CONSEQUENCE THEREOF UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR WAS SO
APPARENT THAT IT MUST BE PRESUMED THE CONTRACTING OFFICER KNEW OF THE
MISTAKE AND SOUGHT TO TAKE ADVANTAGE THEREOF. 26 COMP. DEC. 286; 6
COMP. GEN. 526; 8 ID. 362.'
IN THE INSTANT MATTER, IT IS CLEAR THAT SUCH ERROR AS MAY HAVE BEEN
MADE WAS NOT MUTUAL AND, AS INDICATED ABOVE, THERE WAS NOTHING TO PLACE
THE CONTRACTING OFFICER ON NOTICE OF THE POSSIBILITY OF ERROR. NEITHER
WAS THE ALLEGED ERROR INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT.
ACCORDINGLY, THE ESTABLISHED RULE ABOVE QUOTED IS FOR APPLICATION HERE.
THE ACCEPTANCE OF THE ORDER BY THE CONTRACTOR BY SHIPMENT OF THE
SUPPLIES PRIOR TO ANY ALLEGATION OF ERROR BY IT CONSUMMATED A BINDING
AND VALID CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE
PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313;
AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 55;
26 COMP. GEN. 415; 29 ID. 323.
IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING NO OFFICER OF
THE GOVERNMENT HAS THE AUTHORITY TO GIVE AWAY OR SURRENDER A RIGHT
VESTED IN OR ACQUIRED BY THE GOVERNMENT UNDER A CONTRACT. 14 COMP.
GEN. 468; 20 ID. 703 AND COURT CASES CITED.
FOR THE REASONS ABOVE SET FORTH, THERE APPEARS NO VALID BASIS FOR ANY
ADJUSTMENT IN THE CONTRACT PRICE.
WITH THE EXCEPTION OF THE STATEMENT OF THE CONTRACTING OFFICER, THE
PAPERS ARE RETURNED.
B-140338, AUG. 11, 1959
TO HONORABLE FRANKLIN FLEETE, ADMINISTRATOR, GENERAL SERVICES
ADMINISTRATION:
REFERENCE IS MADE TO YOUR LETTER OF JULY 27, 1959, WITH ENCLOSURES,
SUBMITTING FOR OUR DECISION A REQUEST MADE BY THE OCTAGON PROCESS, INC.,
FOR RELIEF FROM EXCESS COSTS AMOUNTING TO $775.14 ASSESSED AGAINST THAT
CONCERN BY OFFICIALS OF THE DENVER OFFICE OF YOUR ADMINISTRATION BY
REASON OF DEFAULT UNDER A PURCHASE ORDER (57-D-7373-1; ITEM
6846-664-7061) COVERING THE PURCHASE OF 10,000 POUNDS OF HERBICIDE.
BY THE INDICATED PURCHASE ORDER DATED JANUARY 14, 1957, THE OCTAGON
PRESS, INC., AGREED TO DELIVER TO THE DENVER FEDERAL CENTER, GENERAL
SERVICES ADMINISTRATION, ON OR BEFORE FEBRUARY 5, 1957, APPROXIMATELY
10,000 POUNDS OF HERBICIDE TO CONFORM TO CERTAIN STATED SPECIFICATIONS,
THE SHIPMENT TO BE MADE IN 200 50-POUND COMMERCIAL-TYPE CONTAINERS. YOU
REPORT THAT THERE WAS SOME DELAY IN DELIVERY IN THIS CASE BUT THAT NO
ACTION WITH RESPECT TO SUCH DELAYED DELIVERY WAS TAKEN BY YOUR DENVER
OFFICE EITHER PRIOR TO OR SUBSEQUENT TO THE ARRIVAL OF THE SHIPMENT AT
ITS DESTINATION. IS IS YOUR VIEW THAT LATENESS IN DELIVERY DOES NOT
APPEAR TO BE AN ISSUE IN THIS MATTER.
BY LETTER DATED MARCH 7, 1957, THE CONTRACTING OFFICER AT DENVER
ADVISED THE CONTRACTOR OF THE TERMINATION OF THE CONTRACT FOR THE REASON
THAT THE SHIPMENT WHICH HAD BEEN MADE PURSUANT TO THE PURCHASE ORDER
FAILED TO CONFORM TO THE REQUIREMENTS OF THE SPECIFICATIONS. THE
PRIMARY GROUND FOR THE DEFAULT ACTION WAS THAT THE PACKAGING OF THE
DELIVERED HERBICIDE WAS NOT CORRECT IN THAT A LARGE PERCENTAGE OF THE
SHIPPING CONTAINERS WERE NOT OF THE 50-POUND COMMERCIAL-TYPE AS REQUIRED
BY THE PURCHASE ORDER. THE TERMINATION LETTER ALSO INDICATED THAT A
REPURCHASE WAS THEN BEING MADE WITH EXCESS COSTS TO BE CHARGED TO THE
CONTRACTOR. ON THE SAME DAY THE CONTRACTING OFFICER REQUESTED BIDS FOR
THE REPURCHASE OF THE SAME QUANTITY OF HERBICIDE FROM OTHER SUPPLIERS.
A NEW COMMITMENT WAS THEREUPON PLACED WITH ANOTHER SUPPLIER AT A HIGHER
PRICE.
IN LETTER OF MARCH 26, 1957, SETTING FORTH ITS REASON FOR PROTESTING
THE TERMINATION ACTION, THE CONTRACTOR EMPHASIZED THE FACT THAT THE
TERMINATION LETTER AND THE ISSUANCE OF AN INVITATION COVERING THE
REPURCHASE WERE ACCOMPLISHED SIMULTANEOUSLY SO THAT NO OPPORTUNITY WAS
AFFORDED THE CONTRACTOR TO CORRECT THE DEFICIENCY. THE CONTRACTOR
STATED FURTHER THAT IT COULD READILY HAVE ARRANGED FOR REPACKAGING OF
THE MATERIAL AND COULD HAVE RETURNED THE SAME PROPERLY PACKAGED TO THE
GOVERNMENT IN A PERIOD OF THREE TO FOUR DAYS. THERE WAS TRANSMITTED
WITH YOUR LETTER A BRIEF PREPARED BY COUNSEL FOR THE CONTRACTOR WHEREIN
REFERENCE WAS MADE TO CERTAIN CONTRACT PROVISIONS CONSIDERED BY HIM AS
DETERMINATIVE OF THE MATTERS HERE INVOLVED. YOU EXPRESSED THE VIEW THAT
THE CONTRACTOR'S CONTENTIONS ARE SUPPORTED BY THE PERTINENT FACTS AND
CIRCUMSTANCES, AND YOU, THEREFORE, RECOMMENDED THAT YOU BE AUTHORIZED TO
RELIEVE THE CONTRACTOR OF THE EXCESS COSTS INVOLVED IN THIS CASE.
PARAGRAPH 11 OF THE GENERAL PROVISIONS (STANDARD FORM 32, 1949
EDITION--- INCLUDED BY REFERENCE IN THE PURCHASE ORDER) PROVIDED, IN
PERTINENT PART, THAT THE GOVERNMENT BY WRITTEN NOTICE OF DEFAULT TO THE
CONTRACTOR COULD TERMINATE THE CONTRACT AND CHARGE HIM WITH ANY EXCESS
COSTS INCURRED IN PROCURING THE SUPPLIES ELSEWHERE IN THE FOLLOWING
CIRCUMSTANCES:
"/II) IF THE CONTRACTOR FAILS TO PERFORM ANY OF THE OTHER PROVISIONS
OF THIS CONTRACT, OR SO FAILS TO MAKE PROGRESS AS TO ENDANGER
PERFORMANCE OF THIS CONTRACT IN ACCORDANCE WITH ITS TERMS, AND IN EITHER
OF THESE TWO CIRCUMSTANCES DOES NOT CURE SUCH FAILURE WITHIN A PERIOD OF
10 DAYS (OR SUCH LONGER PERIOD AS THE CONTRACTING OFFICER MAY AUTHORIZE
IN WRITING) AFTER RECEIPT OF NOTICE FROM THE CONTRACTING OFFICER
SPECIFYING SUCH FAILURE.'
THE TERMS OF THE QUOTED "DEFAULT" PROVISIONS CLEARLY INDICATE THAT A
CONTRACTOR WHO DELIVERS MATERIALS FOUND NOT TO CONFORM TO THE CONTRACT
SPECIFICATIONS SHALL BE ENTITLED TO A 10-DAY PERIOD IN WHICH TO "CURE"
ANY DEFICIENCIES BROUGHT TO HIS ATTENTION. IT APPEARS FROM THE RECORD
THAT THIS REQUIREMENT WAS NOT COMPLIED WITH IN THE INSTANT CASE. THAT
IS TO SAY, THE CONTRACTOR WAS NOT GIVEN AN OPPORTUNITY TO MEET THE
PACKAGING SPECIFICATIONS WHICH, IT ALLEGES, IT COULD READILY HAVE
ARRANGED FOR IN THREE TO FOUR DAYS.
IT IS OUR VIEW THAT UNDER THE FACTS REPORTED IN THIS CASE THERE IS NO
LEGAL BASIS FOR CHARGING THE CONTRACTOR WITH THE AMOUNT OF THE EXCESS
COSTS INCURRED ON REPURCHASE.
IN RESPONSE TO YOUR REQUEST, THE ENCLOSURES TO YOUR LETTER ARE
RETURNED HEREWITH.
B-139546, AUG. 10, 1959
TO R. A. WILSON, DISBURSING OFFICER, SPECIAL PAYMENTS DEPARTMENT:
BY SECOND ENDORSEMENT DATED MAY 5, 1959, THE COMPTROLLER OF THE NAVY
FORWARDED YOUR LETTER OF APRIL 24, 1959, REQUESTING A DECISION (ASSIGNED
SUBMISSION NO. DO-N-416) AS TO THE PROPER RATE OF RETIRED PAY PAYABLE
TO CHARLES E. TAYLOR, 349 17 62, NAVCAD, USNR (RETIRED), IN THE
CIRCUMSTANCES DISCLOSED.
YOU SAY THAT ON JUNE 1, 1958, TAYLOR WAS PLACED ON THE TEMPORARY
DISABILITY RETIRED LIST IN THE RATE OF NAVAL AVIATION CADET, WITH 3
YEARS, 2 MONTHS, AND 1 DAY OF SERVICE FOR BASIC PAY PURPOSES, AND A
DISABILITY RATED AT 75 PERCENT, PURSUANT TO THE PROVISIONS OF 10 U.S.C.
YOU SAY THAT PAYMENTS OF DISABILITY BENEFITS WERE WITHHELD UNTIL THE
PROVISIONS OF 10 U.S.C. 1217 WERE AMENDED RETROACTIVELY TO PROVIDE
NAVAL AVIATION CADETS WITH THE BENEFITS OF CHAPTER 61, TITLE 10, U.S.
CODE. IN THAT CONNECTION, THE PROVISIONS OF 10 U.S.C. 1217 WERE
AMENDED RETROACTIVELY TO AUGUST 10, 1956, BY SECTION 33 (A) (7) OF THE
ACT OF SEPTEMBER 2, 1958, 72 STAT. 1564. SEE SECTION 33 (G) OF THAT
ACT, 72 STAT. 1568.
YOU SAY THAT UNDER THE PROVISIONS OF 10 U.S.C. 1401, TAYLOR WAS
ENTITLED, AT HIS ELECTION, TO RECEIVE RETIRED PAY COMPUTED BY EITHER---
"METHOD A--- MONTHLY BASIC PAY OF GRADE TO WHICH HE WAS ENTITLED ON
DAY BEFORE PLACEMENT ON TEMPORARY DISABILITY RETIRED LIST (111.15) TIMES
PERCENTAGE OF DISABILITY (75 PERCENT).
"METHOD B--- MONTHLY BASIC PAY OF GRADE TO WHICH HE WAS ENTITLED ON
DAY BEFORE PLACEMENT ON TEMPORARY DISABILITY RETIRED LIST (111.15) TIMES
2 1/2 PERCENT TIMES YEARS ACTIVE SERVICE (4).'
YOU ALSO STATE THAT TAYLOR'S ACCOUNT WAS ESTABLISHED IN ACCORDANCE
WITH THE PROVISIONS OF THE ACT OF SEPTEMBER 2, 1958, RETROACTIVE TO JUNE
1, 1958, WITH MONTHLY RETIRED PAY AT THE RATE OF $83.36, INCREASED TO
$88.36 (PURSUANT TO SECTION 4 (B) OF THE ACT OF MAY 20, 1958, 72 STAT.
128, BASED ON HIS ELECTION UNDER METHOD A.
YOU REFER TO THE PROVISIONS OF SECTIONS 1372 AND 6912 OF TITLE 10, AS
AMENDED, AND YOU ASK WHETHER IN VIEW OF THOSE PROVISIONS, TAYLOR IS
ENTITLED TO RETIRED PAY AT THE GROSS MONTHLY RATE OF $120, BASED ON THE
BASIC PAY PROVIDED FOR ENLISTED MEMBERS IN PAY GRADE E-4, WITH OVER
THREE YEARS' SERVICE.
SECTION 1372 OF TITLE 10, PROVIDES, IN PART, AS FOLLOWS:
"UNLESS ENTITLED TO A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISION
OF LAW, ANY MEMBER OF AN ARMED FORCE WHO IS RETIRED FOR PHYSICAL
DISABILITY UNDER SECTION 1201 OR 1204 OF THIS TITLE, OR WHOSE NAME IS
PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER SECTION 1202 OR
1205 OF THIS TITLE, IS ENTITLED TO THE GRADE EQUIVALENT TO THE HIGHEST
OF THE FOLLOWING:
"/1) THE GRADE OR RANK IN WHICH HE IS SERVING ON THE DATE WHEN HIS
NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR, IF HIS NAME
WAS NOT CARRIED ON THAT LIST, ON THE DATE WHEN HE IS RETIRED.'
SECTION 6912 OF TITLE 10, AS AMENDED BY SECTION 1 (147) (A) OF THE
ACT OF SEPTEMBER 2, 1958, 72 STAT. 1513, PROVIDES, IN PART, AS FOLLOWS:
"AVIATION CADETS: BENEFITS
"EXCEPT AS PROVIDED IN SECTION 251 (A) OF TITLE 37, AVIATION CADETS
OR THEIR BENEFICIARIES ARE ENTITLED TO THE SAME ALLOWANCES, PENSIONS,
GRATUITIES, AND OTHER BENEFITS AS ARE PROVIDED FOR ENLISTED MEMBERS IN
PAY GRADE E-4. * * *"
AS ORIGINALLY CODIFIED, SECTION 6912 (A) OF TITLE 10, PRESCRIBED,
AMONG OTHER THINGS, THE MONTHLY RATE OF PAY TO WHICH AN AVIATION CADET
WAS ENTITLED WHILE ON ACTIVE DUTY, AND THE LANGUAGE OF SUBSECTION (C) OF
THAT SECTION--- CARRIED FORWARD FROM SECTION 6 OF THE ACT OF AUGUST 4,
1942, 56 STAT. 738--- IS IDENTICAL TO THAT NOW CONTAINED IN SECTION
6912, AS AMENDED. THE EFFECT OF THE ACT OF SEPTEMBER 2, 1958, AMENDING
SECTION 6912, WAS SIMPLY TO SEPARATE ITEMS RELATING TO ,BENEFITS" AND
ITEMS RELATING TO PAY AND ALLOWANCES TO WHICH AVIATION CADETS ARE
ENTITLED. IN CONNECTION WITH SECTION 6912, IT WAS STATED IN H.R. REPORT
NO. 930, P. 60, AND SENATE REPORT NO. 2095, P. 75, TO ACCOMPANY H.R.
8943, WHICH BECAME THE ACT OF SEPTEMBER 2, 1958, THAT "THE SUBSTANCE OF
FORMER SUBSECTIONS (A) (LESS CLAUSE (4) ( AND (B) IS COVERED BY THE
CAREER COMPENSATION ACT, AS AMENDED BY THE ACT OF MARCH 31, 1955 (69 (69
STAT. 19) AND SECTION 10 OF THIS ACT.'
THE GRADE OF AVIATION CADET IS A SPECIAL ENLISTED GRADE IN THE NAVAL
SERVICE. SEE 10 U.S. CODE 6911 (A), WHICH SUPERSEDED SECTION 2 OF THE
NAVAL AVIATION CADET ACT OF 1942, 56 STAT. 737. SECTION 201 (E) OF THE
CAREER COMPENSATION ACT OF 1949 AS ADDED BY SECTION 2 (3) OF THE CAREER
INCENTIVE ACT OF 1955, 69 STAT. 19, 37 U.S.C. 232 (E), PROVIDES THAT
AVIATION CADETS ENLISTED OR APPOINTED UNDER THE ARMY AVIATION CADET ACT,
55 STAT. 239, AS AMENDED, OR UNDER THE NAVAL AVIATION CADET ACT OF 1942,
56 STAT. 737, AS AMENDED, ARE ENTITLED TO MONTHLY PAY AT THE RATE OF 50
PERCENT OF THE BASIC PAY OF A COMMISSIONED OFFICER IN PAY GRADE C-1 WITH
UNDER TWO CUMULATIVE YEARS OF SERVICE.
WHILE UNDER THE PROVISIONS OF SECTION 6912 OF TITLE 10, AS AMENDED,
AN AVIATION CADET IS ENTITLED TO THE SAME "ALLOWANCES, PENSIONS,
GRATUITIES, AND OTHER BENEFITS AS ARE PROVIDED FOR ENLISTED MEMBERS IN
PAY GRADE E-4," WE FIND NOTHING IN THE LAW OR ITS LEGISLATIVE HISTORY
WHICH WOULD INDICATE THAT AN AVIATION CADET RETIRED BY REASON OF
PHYSICAL DISABILITY IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE
BASIS OF THE BASIC PAY PRESCRIBED FOR MEMBERS IN PAY GRADE E-4. ON THE
CONTRARY, SINCE CONGRESS HAS EXPRESSLY FIXED THE MONTHLY RATE OF PAY OF
AVIATION CADETS, IT SEEMS REASONABLY CLEAR THAT THE PROVISIONS OF
SECTION 6912 DO NOT PURPORT TO AFFECT EITHER THE RATE OF PAY OR THE
GRADE IN WHICH THE MEMBER SERVED AS AN AVIATION CADET. COMPARE 30 COMP.
GEN. 431 AND 35 COMP. GEN. 324.
SINCE TAYLOR WAS SERVING IN THE GRADE OF AVIATION CADET ON THE DATE
WHEN HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, IT
FOLLOWS THAT HE IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE
BASIS OF THE MONTHLY RATE OF PAY AS FIXED FOR AN AVIATION CADET, NAMELY,
AS SHOWN IN THE COMPUTATION UNDER METHOD A OF YOUR SUBMISSION. HE IS
NOT ENTITLED TO COMPUTE HIS RETIRED PAY ON THE BASIS OF THAT OF AN
ENLISTED MEMBER IN GRADE E-4 WITH OVER THREE YEARS' SERVICE. YOUR
QUESTION IS ANSWERED ACCORDINGLY.
B-139772, AUG. 10, 1959
TO PUTNAM MILLS CORPORATION:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 3, 1959, PROTESTING
THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS
NO. QM/CTM/-36-243-59-746, ISSUED BY THE MILITARY CLOTHING AND TEXTILE
SUPPLY AGENCY.
THE INVITATION REQUESTED BIDS ON TWO TYPES OF NYLON TWILL CLOTH WITH
DELIVERY TO COMMENCE DURING THE MONTH OF SEPTEMBER 1959, AND MONTHLY
ALLOTMENTS THEREAFTER. YOU SUBMITTED THE LOWEST BID RECEIVED. HOWEVER,
THE BID WAS REJECTED BY THE CONTRACTING OFFICER FOR THE REASON THAT YOU
WERE NOT CONSIDERED A RESPONSIBLE BIDDER UNDER THE PARTICULAR
INVITATION.
YOU PROTEST THE DETERMINATION MADE BY THE CONTRACTING OFFICER ON THE
BASIS THAT YOUR RECORD WITH THE GOVERNMENT HAS BEEN EXCELLENT. IT IS
ALSO STATED THAT THE FINISHER DESIGNATED BY THE SUCCESSFUL BIDDER IS THE
FIRM WHICH HAS HAD THE MAJOR SHARE OF DIFFICULTY IN PRODUCING
SPECIFICATION MATERIAL AND THAT THE FINISHER WHOM YOU CHOSE IS THE ONLY
ONE SO FAR THAT HAS BEEN CONSISTENT IN PRODUCING SPECIFICATION FABRIC.
THE REPORT AND PAPERS FURNISHED IN THE MATTER BY THE DEPARTMENT OF
THE ARMY SHOW THAT THE MATERIAL COVERED BY THE INVITATION IS TO BE USED
FOR AIR FORCE CWU COVERALLS TO BE MANUFACTURED AT THE MILITARY CLOTHING
AND TEXTILE SUPPLY AGENCY FACTORY; THAT ALL PLANNING RELATIVE TO
MANUFACTURE
OF THE COVERALLS IS BASED ON THE REQUIRED CLOTH DELIVERIES FROM
SEPTEMBER THROUGH DECEMBER AND THAT ANY DELAY IN DELIVERY WILL HAVE AN
ADVERSE EFFECT ON THE FACTORY SCHEDULE, INCLUDING IDLING OF THE
ADDITIONAL PERSONNEL HIRED FOR THIS PROGRAM.
IT IS REPORTED THAT AN EXAMINATION OF ITS PERFORMANCE UNDER THE
CONTRACTS AWARDED TO PUTNAM MILLS CORPORATION SINCE MAY 27, 1958, SHOWED
THAT OUT OF 11 CONTRACTS TWO WERE TERMINATED FOR DEFAULT AND 6 OTHERS
WERE DELINQUENT AT ONE STAGE OR ANOTHER DURING PERFORMANCE; AND THAT IN
4 DIFFERENT CONTRACTS AFTER AWARD YOU ELECTED TO CHANGE SUPPLIERS. IT
IS STATED THAT IT MUST BE ASSUMED THAT THE DELINQUENCIES AROSE AS A
RESULT OF INADEQUATE ADMINISTRATION OF THE CONTRACTS AND CONTROL OF THE
SUPPLIERS. IT IS FURTHER REPORTED THAT THE DETERMINATION WAS MADE ON
THE BASIS OF THE OVERALL PERFORMANCE UNDER THE PRIOR CONTRACTS AND NOT
SOLELY ON THE DEFAULT TERMINATIONS AND THAT SUCH ACTION WAS NOT TAKEN AS
A PUNITIVE MEASURE FOR THE DEFAULTS.
THE RECORD SHOWS THAT THE CONTRACTING OFFICER'S DETERMINATION THAT
YOU WERE NOT A RESPONSIBLE BIDDER UNDER THE INSTANT INVITATION WAS
CONCURRED IN BY TWO OTHER ADMINISTRATIVE OFFICIALS AND WAS ALSO APPROVED
BY THE CHIEF, PURCHASING BRANCH.
WITH RESPECT TO THE CONTENTION THAT THE FINISHER CHOSEN BY YOU IS THE
ONLY ONE WHO SO FAR HAS BEEN CONSISTENT IN PRODUCING SPECIFICATION
FABRIC, THE RECORD SHOWS THAT YOU LISTED IN YOUR BID TWO DYEING AND
FINISHING CONCERNS AND THAT ONE OF THOSE LISTED IS THE SAME FINISHER
DESIGNATED BY AND BEING USED BY THE SUCCESSFUL BIDDER. IT WOULD APPEAR,
THEREFORE, THAT YOUR OBJECTION TO THE FINISHER DESIGNATED BY THE
SUCCESSFUL BIDDER IS INCONSISTENT SINCE YOU DESIGNATED THE SAME FIRM AS
ONE OF YOUR SUBCONTRACTORS.
PARAGRAPH 1-902 ARMED SERVICES PROCUREMENT REGULATION, REQUIRES THAT
PURCHASES SHALL BE MADE FROM RESPONSIBLE PROSPECTIVE CONTRACTORS WHO
MEET THE STANDARDS SET FORTH IN PARAGRAPH 1-903. AMONG THE REQUIREMENTS
IS THAT THE PROSPECTIVE CONTRACTOR IS ABLE TO COMPLY WITH THE REQUIRED
DELIVERY AND PERFORMANCE SCHEDULE AND HAS A SATISFACTORY RECORD OF
PERFORMANCE.
STRICT ADHERENCE TO THE DELIVERY SCHEDULE IS REQUIRED UNDER THE
INSTANT INVITATION, AND BASED UPON YOUR PERFORMANCE UNDER RECENT PRIOR
CONTRACTS, THE CONTRACTING OFFICER COULD NOT DETERMINE THAT YOU WERE A
RESPONSIBLE BIDDER. IN THE ABSENCE OF A SHOWING THAT THE DETERMINATION
MADE WAS NOT BASED UPON THE REASONABLE EXERCISE OF HONEST JUDGMENT THERE
IS NO BASIS UPON WHICH WE WOULD BE WARRANTED IN QUESTIONING THE
ADMINISTRATIVE DETERMINATION.
B-140133, AUG. 10, 1959
TO ELLIOTT MOYER, ESQUIRE:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 11, 1959, WITH
ENCLOSURES, WHEREIN ON BEHALF OF YOUR CLIENT, ERMAN-HOWELL DIVISION,
LURIA STEEL AND TRADING CORPORATION, YOU REQUESTED RECONSIDERATION OF
SETTLEMENT DATED MAY 11, 1959, BY WHICH OUR CLAIMS DIVISION DISALLOWED
YOUR CLIENT'S CLAIM IN THE AMOUNT OF $2,134.70, REPRESENTING AN AMOUNT
CLAIMED TO BE DUE UNDER CONTRACT NO. DA/S/-05-001-ORD-197, DATED JUNE
26, 1958.
THE CLAIM COVERED BY THE SETTLEMENT OF MAY 11, 1959, REPRESENTED
COSTS ALLEGED TO HAVE BEEN INCURRED IN WEIGHT LOSS, SWITCHING CARS, AND
REWORKING MATERIAL DELIVERED UNDER THE CITED CONTRACT. THE CLAIM AS TO
WHICH YOU HAVE REQUESTED RECONSIDERATION IS IN THE REDUCED AMOUNT OF
$651.20, STATED IN YOUR LETTER OF JUNE 11, 1959, TO THE PROPERTY
DISPOSAL OFFICER AT THE PUEBLO ORDNANCE DEPOT, AS REPRESENTING 43,080
POUNDS OF WORTHLESS SCRAP RUBBER WHICH WAS SHIPPED TO AND ,CHARGED TO
THE PURCHASER AT THE RATE OF $33.86 A TON.' SINCE THE CONTRACT RATE FOR
THE MATERIAL INVOLVED WAS $20.29 PER TON, MR. MASON OF OUR OFFICE MADE
INFORMAL INQUIRY AS TO THE BASIS FOR THE QUOTED STATEMENT AND WAS
ADVISED BY YOU THAT THE STATED RATE OF $33.86 PER TON INCLUDES FREIGHT
CHARGES OF $13.57 PER TON.
AS A BASIS FOR REQUESTING RECONSIDERATION IN THIS CASE, IT WAS STATED
IN YOUR LETTER, AMONG OTHER THINGS, THAT IRRESPECTIVE OF PARAGRAPH 2 OF
THE GENERAL SALE TERMS AND CONDITIONS, PARAGRAPHS 8 AND 11 PROVIDE FOR
AND REQUIRE AN ADJUSTMENT OF THE EXCESS CHARGE RESULTING FROM THE
INCLUSION OF THE VALUELESS EXTRANEOUS MATERIAL IN THE SHIPMENT. AT A
CONFERENCE WITH MR. MASON ON JULY 14, 1959, YOU INSISTED THAT THE
PROVISIONS OF PARAGRAPHS 1 AND 2 OF THE GENERAL SALE TERMS AND
CONDITIONS ARE NOT CONTROLLING IN THIS CASE, IT BEING YOUR VIEW THAT
UNDER THE DESCRIPTIVE LANGUAGE OF THE INVITATION THE GOVERNMENT COULD
MAKE NO CHARGE FOR OTHER THAN THE ACTUAL WEIGHT OF THE STEEL SCRAP
INCLUDED IN THE SHIPMENT.
THE RECORD SHOWS THAT BY INVITATION NO. 05-001-S-58-41, DATED JUNE 4,
1958, THE PROPERTY DISPOSAL BRANCH, PUEBLO ORDNANCE DEPOT, PUEBLO,
COLORADO, OFFERED FOR SALE VARIOUS ITEMS OF GOVERNMENT-OWNED SURPLUS
PROPERTY CONSISTING OF, AMONG OTHER THINGS, FERROUS AND NON-FERROUS
SCRAP, THE BIDS TO BE OPENED AT 10 A.M. ON JUNE 23, 1958. IN RESPONSE
THERETO, YOUR CLIENT SUBMITTED BIDS FOR SEVERAL OF THE ITEMS AMONG WHICH
WAS ITEM NO. 34, DESCRIBED IN THE INVITATION AS APPROXIMATELY 260 TONS
OF
"MISC HEAVY MELTING, UNPREPARED IRON AND STEEL SCRAP CONSISTING OF
DEMILITARIZED 90 MM GUNS, ETC., EST GOVT ACQ COST $607,445.02.'
YOUR CLIENT SUBMITTED A BID FOR ITEM NO. 34 AT THE PRICE OF $20.29
PER GROSS TON, OR FOR A TOTAL OF $5,275.40, AND, BEING THE HIGHEST BID
RECEIVED FOR THAT ITEM, A CONTRACT WAS AWARDED ACCORDINGLY. YOUR CLIENT
ACTUALLY WAS SHIPPED 270.2767 GROSS TONS AND PAID THEREFOR THE SUM OF
$5,483.91.
THEREAFTER YOUR CLIENT FILED A CLAIM FOR REFUND OF THE AMOUNT OF
$2,134.70, IT BEING ALLEGED THAT THE MATERIAL SHIPPED WAS REJECTED DUE
TO THE FACT THAT IT CONTAINED TANK TRACKS HEAVILY CONTAMINATED WITH
RUBBER, AND THAT SINCE RUBBER CAN IN NO WAY BE CLASSIFIED AS UNPREPARED
IRON AND STEEL SCRAP, A REFUND SHOULD BE MADE.
IN TRANSMITTING THE CLAIM IN QUESTION TO OUR CLAIMS DIVISION FOR
SETTLEMENT, THE OFFICE OF THE QUARTERMASTER GENERAL, DEPARTMENT OF THE
ARMY, MADE THE FOLLOWING STATEMENT:
"* * * THE CONTRACTING OFFICER HAS ADVISED THAT BOGIE ASSEMBLIES,
TANK TRACKS, ETC., CONTAINING RUBBER ARE HISTORICALLY FOUND IN
UNPREPARED SCRAP OF THIS TYPE. RUBBER CONTAMINATED STEEL TANK TRACK AS
TO ITEM 34 WAS NOT MIXED WITH THE BALANCE OF THE LOT BUT PLACED AT ONE
END OF THE LOT AND THUS PHYSICALLY SEPARATED FROM THE OTHER ITEMS DURING
THIS SALE. THE CUSTOMER REGISTER RECORDS OF THE DISPOSAL INSTALLATION
INDICATE THAT THE CLAIMANT DID NOT INSPECT THE ITEM PRIOR TO BIDDING. *
* *"
IT SEEMS APPARENT THAT IF YOUR CLIENT HAD INSPECTED THE PROPERTY IN
QUESTION PRIOR TO SUBMITTING A BID, AS IT WAS INVITED AND URGED TO DO,
IT COULD HAVE READILY ASCERTAINED THE ACTUAL CONDITION THEREOF, AND THIS
SEEMS TO BE PARTICULARLY TRUE IN THIS CASE SINCE IT IS REPORTED THE
RUBBER CONTAMINATED MATERIAL WAS PHYSICALLY SEPARATED FROM THE OTHER
ITEMS DURING THE SALE. IN ADDITION TO INVITING AND URGING PROSPECTIVE
BIDDERS TO INSPECT THE PROPERTY PRIOR TO SUBMITTING BIDS, PARAGRAPH 1 OF
THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT PROVIDED THAT IN
NO CASE WOULD FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR
WITHDRAWAL OF A BID AFTER OPENING. IN THE CASE OF PAXTON-MITCHELL
COMPANY V. UNITED STATES, 172 F.SUPP. 463, THE COURT OF CLAIMS IN GIVING
CONSIDERATION TO THE PROVISIONS OF PARAGRAPH 1, HELD:
"A BIDDER FAILS TO INSPECT AT HIS PERIL. HAD PLAINTIFF MADE AN
INSPECTION BEFORE MAKING ITS BID, AS IT DID AFTERWARDS, IT COULD HAVE
DISCOVERED THAT MUCH OF THE MATERIAL WAS MALLEABLE IRON. VISUAL
INSPECTION WAS INEFFECTUAL, BUT MICROSCOPIC INSPECTION WAS EFFECTUAL, AS
WAS ALSO CHEMICAL ANALYSIS. PLAINTIFF WAS REQUIRED TO MAKE THE SORT OF
INSPECTION THAT WAS EFFECTUAL. ITS FAILURE TO DO SO LEAVES IT NO ROOM
TO COMPLAIN.'
YOUR CLIENT'S CLAIM APPEARS TO BE PREDICATED UPON THE THEORY THAT IT
WAS ENTITLED TO RELY UPON THE DESCRIPTIVE LANGUAGE OF THE INVITATION,
THAT IS TO SAY, IT EXPECTED TO RECEIVE 260 GROSS TONS OF IRON AND STEEL
SCRAP, AND SHOULD NOT BE REQUIRED TO PAY FOR ANY EXTRANEOUS MATTER
INCLUDED THEREIN. RESPECTING SUCH VIEW IT MAY BE SAID THAT THE IMPLIED
WARRANTY WHICH GENERALLY IS IMPOSED BY LAW IN CONNECTION WITH SUCH
TRANSACTIONS IS NOT FOR APPLICATION WHERE THE UNITED STATES IS A PARTY
SINCE, IN THE DISPOSITION OF EXCESS OR OBSOLETE MATERIALS AND SUPPLIES,
THE GOVERNMENT IS NOT ENGAGED IN NORMAL TRADE OR BUSINESS. IN ORDER TO
AVOID ANY POSSIBLE LIABILITY UNDER CIRCUMSTANCE SUCH AS ARE HERE
INVOLVED, THERE WAS INCLUDED IN THE INVITATION PARAGRAPH 2 OF THE
GENERAL SALE TERMS AND CONDITIONS, IN PART, AS FOLLOWS:
"ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND "WHERE
IS," AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. * * * THE DESCRIPTION
IS BASED ON THE BEST AVAILABLE INFORMATION, BUT THE GOVERNMENT MAKES NO
GUARANTY WARRANTY, OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO
QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE OR DESCRIPTION OF ANY
OF THE PROPERTY, OR ITS FITNESS FOR ANY USE OF PURPOSE, AND NO CLAIM
WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE
SALE BASED UPON FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD
EXPECTED * * *.'
IN CONSTRUING SUCH PROVISIONS IT HAS CONSISTENTLY BEEN HELD BY THE
COURTS AND OUR OFFICE THAT WHERE THERE IS AN EXPRESS DISCLAIMER OF
WARRANTY, AS IN THIS CASE, NO SUCH WARRANTY MAY BE IMPLIED FROM THE
DESCRIPTION OF THE PROPERTY SOLD, AND THAT THE DISCLAIMER OF WARRANTY
EXTENDS TO AND INCLUDES THE DESCRIPTION. SEE, IN THIS CONNECTION
LUMBRASO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER COMPANY V. UNITED
STATES, 52 F.2D 31, CERTIORARI DENIED, 284 U.S. 676; TRIAD CORPORATION
V. UNITED STATES, 63 C.CLS. 151; AND I. SHAPIRO AND COMPANY V. UNITED
STATES, 66 C.CLS. 424. THESE CASES, ALSO INVOLVING A VARIANCE IN THE
CONDITIONS OF THE PROPERTY FROM THAT OF THE DESCRIPTION IN THE
INVITATION, HOLD THAT UNDER SUCH CIRCUMSTANCES BUYERS HAVE NO RIGHT TO
EXPECT, HAVE NOTICE NOT TO EXPECT, AND CONTRACT NOT TO EXPECT ANY
WARRANTIES WHATSOEVER. ALSO, THE LAW IS WELL SETTLED THAT IN SALES OF
PERSONAL PROPERTY, IN THE ABSENCE OF AN EXPRESS WARRANTY, AND WHERE THE
SELLER IS GUILTY OF NO FRAUD, AND IS NEITHER THE MANUFACTURER OR GROWER
OF THE ARTICLES HE SELLS, THE MAXIM OF CAVEAT EMPTOR APPLIES. SEE
BARNARD V. KELLOGG, 10 WALL 383.
IN HOLDING HEREIN THAT THE SETTLEMENT OF MAY 11, 1959, WAS CORRECT,
WE HAVE CONSIDERED THE HOLDING OF THE COURT IN THE CASE OF UNITED STATES
V. ALEXANDER, 115 F.SUPP. 240, AND THE OPINIONS OF THE ARMED SERVICES
BOARD OF CONTRACT APPEALS CITED IN THE PENULTIMATE PARAGRAPH OF YOUR
LETTER OF JUNE 11, 1959, TO THE PROPERTY DISPOSAL OFFICER. IN THE
ALEXANDER CASE AN ACTION WAS INSTITUTED BY THE UNITED STATES TO RECOVER
THE PURCHASE PRICE OF CERTAIN MATERIALS SOLD TO THE DEFENDANT UNDER A
CONTRACT CONTAINING THE USUAL PROVISIONS FOR INSPECTION AND A DISCLAIMER
OF ANY WARRANTY, ETC. UPON COMPLAINT BY THE DEFENDANT THAT THE PROPERTY
DELIVERED DID NOT CONFORM TO THAT DESCRIBED IN THE INVITATION, THE
CONTRACTING OFFICER SET ASIDE THE CONTRACT AS TO THE ALLEGED
MISDESCRIBED PROPERTY AND REFUNDED THE PURCHASE PRICE. THE COURT HELD,
IN EFFECT, THAT THE PROPERTY DELIVERED DID NOT IN ANY WAY CORRESPOND TO
THE DESCRIPTION AND THAT THE CONTRACTING OFFICER ACTED PROPERLY IN
REFUNDING THE PURCHASE PRICE, THIS IS TO SAY, PURSUANT TO AUTHORITY
CONTAINED IN THE CONTRACT.
IT IS OUR VIEW THAT THERE WAS NO SUCH MIS-DESCRIPTION OF THE PROPERTY
IN THIS CASE AS APPEARS TO HAVE BEEN INVOLVED IN THE ALEXANDER CASE. IN
THE INSTANT CASE THE GOVERNMENT INTENDED TO DELIVER THE PROPERTY
ADVERTISED WHEREAS IN THE ALEXANDER CASE THE COURT FOUND THAT THE
PROPERTY INVOLVED WAS DESCRIBED AS "JEEP WHEELS" BUT THE GOVERNMENT
INTENDED TO SELL SEMI-OBSOLETE PARTS OF COMMON CARRIAGES. IN OUR VIEW
THERE IS SUBSTANTIAL DOUBT THAT THE COURT'S HOLDING IN THAT CASE WAS
PROPER. BUT, BE THAT AS IT MAY, SUBSTANTIAL SUPPORT FOR OUR VIEW OF
THIS CASE WILL BE FOUND IN THE HOLDINGS OF THE COURT IN THE CASES
HEREINBEFORE REFERRED TO.
WITHOUT CONSIDERING IN DETAIL THE SEVERAL OPINIONS RENDERED BY THE
ARMED SERVICES BOARD OF CONTRACT APPEALS, IT SEEMS SUFFICIENT TO POINT
OUT THAT THE FACTUAL SITUATIONS DESCRIBED IN THOSE CASES ARE NOT, IN OUR
OPINION, COMPARABLE TO THOSE IN THE INSTANT MATTER. CERTAINLY, THIS IS
TRUE WITH RESPECT TO THE CITED CASES OF HERMAN REID, ASBGA NO. 3615, AND
THE J. H. SURPLUS DISTRIBUTORS COMPANY, ASBGA NO. 765, WHEREIN THE
BOARD'S ACTION APPEARS TO HAVE BEEN BASED UPON A SHORTAGE IN THE
QUANTITY OF MATERIAL SHIPPED. THERE WAS NO "SHORTAGE" IN THE INSTANT
CASE AS THAT TERM WAS USED IN THESE CASES.
UPON THE BASIS OF WHAT IS HEREINBEFORE SET FORTH, THE ACTION OF OUR
CLAIMS DIVISION IN DISALLOWING YOUR CLIENT'S CLAIM APPEARS TO HAVE BEEN
CORRECT, AND IS SUSTAINED.
B-140294, AUG. 10, 1959
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED JULY 22, 1959, WITH ENCLOSURES,
FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), RELATING TO A
MISTAKE IN BID ALLEGED BY THE PATHMAN CONSTRUCTION COMPANY, 1735 WEST
FULLERTON AVENUE, CHICAGO, ILLINOIS, AFTER THE AWARD OF CONTRACT NO.
DA-11-032-7253, DATED APRIL 27, 1959, FOR THE CONSTRUCTION OF OFFICERS'
QUARTERS, RELATED SITE WORK AND PARKING LOT AT THE CHANUTE AIR FORCE
BASE, ILLINOIS. OUR DECISION IS REQUESTED AS TO WHETHER THE REQUEST OF
THE CONTRACTOR FOR REFORMATION OF THE CONTRACT MAY BE GRANTED.
THE RECORD SHOWS THAT BY INVITATION NO. ENG-11-032-59-18, DATED MARCH
20, 1959, THE U.S. ARMY ENGINEER DISTRICT, CHICAGO, REQUESTED BIDS FOR
FURNISHING ALL LABOR, EQUIPMENT, AND MATERIALS AND TO PERFORM ALL WORK
REQUIRED FOR THE ABOVE-INDICATED CONSTRUCTION, THE BIDS TO BE OPENED AT
2 P.M. ON APRIL 17, 1959. NINE BIDS WERE RECEIVED IN RESPONSE TO THE
INVITATION, THE LOWEST BEING THAT OF THE PATHMAN CONSTRUCTION COMPANY AT
THE TOTAL BID PRICE OF $509,879. THE OTHER EIGHT BIDS RANGED FROM
$551,843 TO $642,748.
THE CONTRACTING OFFICER REPORTED THAT ON APRIL 21, 1959, MR. PATHMAN
CAME TO HIS OFFICE AND STATED THAT HE BELIEVED A MISTAKE HAD BEEN MADE
IN HIS BID AND THAT HE WAS HAVING IT CHECKED. ON APRIL 24, 1959, MR.
PATHMAN AGAIN VISITED THE OFFICE OF THE CONTRACTING OFFICER AND AT THAT
TIME HE STATED THAT ALTHOUGH THERE HAD BEEN A MISTAKE IN HIS BID (NO
AMOUNT GIVEN) HE WOULD ACCEPT THE JOB AND ABSORB THE AMOUNT OF THE
MISTAKE. SINCE MR. PATHMAN HAD INDICATED HIS WILLINGNESSS TO ACCEPT THE
JOB, EVEN THOUGH HE ALLEGED THERE HAD BEEN A MISTAKE, AWARD OF THE
CONTRACT WAS MADE TO HIS COMPANY ON APRIL 27, 1959.
THE RECORD FURTHER SHOWS THAT BY LETTER OF MAY 7, 1959, THE PATHMAN
CONSTRUCTION COMPANY SUBMITTED EXECUTED COPIES OF THE CONTRACT AND THE
SUPPORTING PERFORMANCE AND PAYMENT BONDS, IT BEING ALLEGED IN THAT
LETTER THAT AN ERROR HAD BEEN MADE IN THE COMPANY'S BID IN THE AMOUNT OF
$34,560. IT WAS CLAIMED THAT THE ESTIMATOR HAD INSERTED A PRICE OF
$2,400 IN LIEU OF $2,400 IN LIEU OF $24,000 FOR MILLWORK WHICH CAUSED AN
ERROR OF $21,600, AND THAT HE THEN USED THE SAME FIGURE IN ARRIVING AT
THE ESTIMATE FOR LABOR FOR INSTALLING THE MILLWORK WHICH RESULTED IN AN
ADDITIONAL ERROR OF $12,960. THE LETTER OF MAY 7, 1959, CONTAINS THE
FOLLOWING STATEMENT:
"* * * IN ORDER TO AVOID ANY DELAY IN THE PROSECUTION OF THE CONTRACT
WE ARE ACCEPTING THE CONTRACT AS WRITTEN AND SUBMIT FOR YOUR
CONSIDERATION THE FACTS AND CIRCUMSTANCES RELATING TO THE ABOVE
MENTIONED MISTAKE WITH THE HOPE THAT AFTER DUE EXAMINATION AND STUDY OF
THE DATA HEREWITH SUBMITTED THAT WE MAY BE GRANTED AN ADDITION TO OUR
CONTRACT PRICE.'
ALTHOUGH MR. PATHMAN ADVISED ORALLY PRIOR TO AWARD THAT HE BELIEVED A
MISTAKE HAD BEEN MADE IN THE COMPANY'S BID, HE FAILED TO FURNISH ANY
FACTS OR INFORMATION TO SUBSTANTIATE THE ALLEGED ERROR. ON THE
CONTRARY, HE SPECIFICALLY ADVISED THAT THE COMPANY WOULD ACCEPT THE JOB
AND THAT THE AMOUNT OF THE ERROR WOULD BE ABSORBED. IN THE ABSENCE OF
FACTS TO SUBSTANTIATE THE ALLEGED ERROR AND IN VIEW OF THE COMPANY'S
STATED WILLINGNESS TO ACCEPT THE AWARD, IT APPEARS THAT THE CONTRACTING
OFFICER WAS ENTIRELY JUSTIFIED IN AWARDING THE CONTRACT TO THAT CONCERN
AS THE LOWEST RESPONSIBLE BIDDER. IT MAY BE ADDED THAT THE DIFFERENCE
BETWEEN THE LOW BID PRICE OF $509,879 AND THE NEXT LOW BID OF $551,843
APPEARS NOT SUFFICIENT TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE
PROBABILITY OF ERROR.
THERE IS NOT INVOLVED IN THIS CASE ANY QUESTION OF RESERVATION BY THE
CONTRACTOR PRIOR TO AWARD OF A RIGHT TO CLAIM AN ADJUSTMENT IN PRICE
BECAUSE OF THE ERROR REFERRED TO. ON THE CONTRARY, AS PREVIOUSLY
STATED, THE COMPANY GAVE EVERY INDICATION THAT IT DID NOT INTEND TO
PRESS ITS CLAIM OF ERROR. UNDER THE FACTS REPORTED, THERE APPEARS TO BE
NO QUESTION OF LACK OF GOOD FAITH ON THE PART OF THE CONTRACTING OFFICER
IN ACCEPTING THE LOWEST BID, AND WE MUST, THEREFORE, CONCLUDE THAT THE
ERROR WAS UNILATERAL ONLY AND THAT THE ACCEPTANCE OF THE BID CONSUMMATED
A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND OBLIGATIONS OF
THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S.
313. IT IS WELL ESTABLISHED THAT RIGHTS THUS VESTED IN THE GOVERNMENT
MAY NOT BE SURRENDERED IN THE ABSENCE OF SOME CONCOMITANT BENEFIT
FLOWING TO THE UNITED STATES. SIMPSON V. UNITED STATES, 172 U.S. 372;
UNITED STATES V. AMERICAN SALES CORPORATION, 27 F.2D 389, AFFIRMED 32
F.2D 141, CERTIORARI DENIED, 280 U.S. 574; PACIFIC HARDWARE AND STEEL
COMPANY V. UNITED STATES, 49 C.CLS. 327, 335; BAUSCH AND LOMB OPTICAL
COMPANY V. UNITED STATES, 78 ID. 584, 607.
ACCORDINGLY, WE CONCLUDE THAT THERE IS NO LEGAL BASIS FOR REFORMATION
OF THE CONTRACT IN THIS CASE SO AS TO AUTHORIZE PAYMENT OF THE
ADDITIONAL SUM OF $34,560 CLAIMED TO BE DUE BECAUSE OF THE ALLEGED
ERROR.
THE ENCLOSURES TO THE LETTER OF JULY 22, 1959, ARE RETURNED HEREWITH.
B-131798, AUG. 7, 1959
TO MR. ROBERT P. RAPP, MANAGER, A. B. JAMES FREIGHT LINES:
REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 13, 1957, FILE N-705/52,
REQUESTING REVIEW OF OUR AUDIT ACTION ON YOUR BILL N-705 AS TO THE
TRANSPORTATION OF 8,190 POUNDS OF ALUMINUM TANKS, SET UP, CRATED, AND
ONE BOX OF PORTABLE ELECTRIC HEATERS (AIR HEATERS), WEIGHING 55 POUNDS
(TOTAL 8,245 POUNDS), FROM NORTH ISLAND, CALIFORNIA, TO ALAMEDA,
CALIFORNIA, ON BILL OF LADING NO. N-30485727, IN DECEMBER 1951. THE
BILL OF LADING BEARS THE FOLLOWING NOTATION "ORDERED AND FURNISHED TWO
35 FOOT SEMI-TRUCKS.'
FOR THE TRANSPORTATION OF THIS SHIPMENT, WEIGHING 8,245 POUNDS, YOU
CLAIMED AND WERE PAID $450, COMPUTED ON THE BASIS OF A RATE OF 75 CENTS
PER 100 POUNDS, MINIMUM WEIGHT 30,000 POUNDS, FOR EACH OF THE TRUCKS
USED FOR THE TRANSPORTATION. THIS RATE IS PROVIDED IN ITEM NO. 200 OF
SOUTHWESTERN MOTOR TARIFF BUREAU "U.S. GOVERNMENT QUOTATION NO. 1.' BY
REFERENCE MARK (1) ITEM NO. 200 IS MADE ,SUBJECT TO THE PROVISIONS OF
RULE NOS. 110 AND 120.' THE MINIMUM WEIGHT AND AMOUNT CLAIMED BY YOU FOR
THIS TRANSPORTATION IS APPARENTLY BASED UPON YOUR INTERPRETATION OF RULE
NO. 110. IN THE AUDIT OF THIS PAYMENT OUR TRANSPORTATION DIVISION FOUND
THAT THE CHARGE FOR THIS TRANSPORTATION SHOULD BE $261.46, COMPUTED ON
THE BASIS OF A RATE OF 65 CENTS PER 100 POUNDS, MINIMUM WEIGHT 40,000
POUNDS, PROVIDED IN ITEM NO. 200, AND A CONSTRUCTIVE WEIGHT OF 40,225
POUNDS PURSUANT TO THE PROVISIONS OF RULE NO. 120 OF THE MENTIONED
QUOTATION. UPON YOUR FAILURE TO REFUND THE OVERPAYMENT OF $188.54, A
LIKE AMOUNT WAS DEDUCTED IN MAKING PAYMENT OF YOUR BILL NO. N-243 ON
VOUCHER NO. 335313 OF THE APRIL 1957 ACCOUNTS OF J. E. LEWIS, NAVY
DISBURSING OFFICER.
IN YOUR REQUEST FOR REVIEW YOU NOTE THAT THE RATES IN ITEM NO. 200
ARE MADE SUBJECT TO THE PROVISION OF RULE NOS. 110 AND 120 AND STATE
THAT THE RATES IN THAT ITEM "ARE NOT APPLICABLE UNLESS SUBJECT TO RULE
110.' IT IS YOUR POSITION THAT THE ANNOTATION "ORDERED AND FURNISHED TWO
35
FOOT SEMI-TRUCKS" ON THE BILL OF LADING FULFILLED ALL OF THE LEGAL
REQUIREMENTS OF RULE NO. 110. YOU ASSERT THAT THIS SHIPMENT REQUIRED
TWO 35-FOOT SEMI-TRUCKS AND THAT THEY WERE DEMANDED BY VIRTUE OF THE
SPECIFIED ANNOTATION, WHICH YOU MAINTAIN DENOTES EXCLUSIVE USE.
RULE NO. 110 OF SOUTHWESTERN MOTOR TARIFF BUREAU LOCAL U.S.
GOVERNMENT QUOTATION NO. 1, ENTITLED "EXCLUSIVE USE OF CARRIER'S
EQUIPMENT," PROVIDES THAT:
"/A) WHEN EXCLUSIVE USE OF CARRIER'S EQUIPMENT IS REQUIRED OR
DEMANDED BY THE SHIPPER TO MEET THE NEEDS OF SPECIAL CONDITIONS, CHARGES
SHALL BE ASSESSED BY APPLYING THE APPLICABLE CLASS OR COMMODITY RATE
NAMED IN THIS QUOTATION, SUBJECT TO THE FOLLOWING MINIMUM WEIGHTS:
TABLE
(1) LENGTH OF EQUIPMENT MINIMUM WEIGHT
IN LINEAL FEET IN POUNDS
* * * * * * *
OVER 22 FEET BUT NOT OVER 35 FEET ........ 30,000
"/B) SHIPPER RESERVES THE RIGHT TO ORDER SIZE OF EQUIPMENT AND IN
SUCH CASES THE SIZE OF EQUIPMENT ORDERED MUST BE INDICATED ON THE BILLS
OF LADING.'
THUS, IT IS CLEAR THAT THIS RULE IS APPLICABLE ONLY WHEN THE
EXCLUSIVE USE OF A CARRIER'S EQUIPMENT IS REQUIRED OR DEMANDED BY THE
SHIPPER. THIS RECORD DOES NOT ESTABLISH THAT THE EXCLUSIVE USE OF THE
CARRIER'S EQUIPMENT WAS EITHER REQUIRED OR DEMANDED BY THE SHIPPER. THE
MERE
ORDERING OF EQUIPMENT DOES NOT SIGNIFY SUCH A CONDITION, AND IT IS
NOT INDICATED THAT THE CARRIER WAS PRECLUDED FROM LOADING ADDITIONAL
FREIGHT IN ANY USED SPACE IN THE TRUCKS. CORRESPONDENCE OF THE
ADMINISTRATIVE OFFICE HERE INVOLVED REFLECTS ITS CONCURRENCE IN THE VIEW
THAT A REQUEST FOR EXCLUSIVE USE OF TRUCK IS A CONDITION PRECEDENT TO
THE APPLICATION OF THE CHARGE BASIS SET FORTH IN RULE NO. 110. AN
ENDORSEMENT ON THE BILL OF LADING, NOT MADE IN THIS CASE, DEFINITELY
STATING THE SHIPPER'S REQUIREMENT FOR THE EXCLUSIVE USE OF A TRUCK
ORDERED AND FURNISHED WOULD SERVE TO ESTABLISH THAT FACT. SEE, IN THIS
CONNECTION, GUS BLASS CO. V. POWELL BROS. TRUCK LINE, 53 M.C.C. 603;
A.C.F. BRILL MOTORS CO. V. SUPER SERVICE MOTOR FREIGHT CO., 54 M.C.C.
721; AND THE CLARK THREAD CO., INC. V. PILOT FREIGHT CARRIERS, INC., 62
M.C.C. 185.
INSOFAR AS YOU MIGHT HAVE RECEIVED INFORMAL ADVICE AS TO THE NATURE
OF THE ENDORSEMENT TO BE PLACED ON A BILL OF LADING FOR YOUR PROTECTION
WHERE A TRUCK OF A CERTAIN SIZE IS ORDERED AND FURNISHED, IT WOULD
APPEAR NECESSARY TO CONSIDER SUCH STATEMENTS IN THE LIGHT OF THE
PARTICULAR FACTS AND TARIFF PROVISIONS APPLYING IN A SPECIFIC SITUATION;
AND IT MAY BE NOTED THAT INFORMAL OPINIONS EXPRESSED BY AN OFFICER OR
EMPLOYEE OF THE GENERAL ACCOUNTING OFFICE DO NOT CONSTITUTE OFFICIAL
DETERMINATIONS AND ARE NOT CONTROLLING IN OUR AUDIT OF PARTICULAR
TRANSACTIONS.
ACCORDINGLY, THE AUDIT ACTION TAKEN IN THIS MATTER IS NOT IN ERROR
AND REVISION THEREOF IS NOT JUSTIFIED.
B-134383, AUG. 7, 1959
TO THE SECRETARY OF STATE:
REFERENCE IS MADE TO MEMORANDUM DATED JULY 6, 1959, AND ENCLOSURES,
FROM THE DIRECTOR, OFFICE OF FOREIGN BUILDINGS, DEPARTMENT OF STATE, TO
THE DIRECTOR OF THE CLAIMS DIVISION OF OUR OFFICE, RETURNING FOR OUR
CONSIDERATION THE CLAIM OF THE UNITED STATES AGAINST THE INSURANCE
COMPANIES INVOLVED IN THE SHIPMENTS OF TRAVERTINE STONE PURCHASED FROM
COLONNA AND COMPANY, INCORPORATED, UNDER CONTRACT NO. SCC-2288, DATED
AUGUST 16, 1950.
A RE-EXAMINATION OF THE ADMINISTRATIVE FILE TRANSMITTED HERE WITH THE
ABOVE CORRESPONDENCE DISCLOSES THAT CERTIFICATES OF INSURANCE WERE
OBTAINED ON THE OCEAN SHIPMENTS OF THE STONE FROM ITALIAN PORTS TO
HAVANA, CUBA, BY THE CONTRACTOR, WHICH CERTIFICATES SUBSEQUENTLY WERE
ASSIGNED TO THE GOVERNMENT. THE RECORD FAILS TO ESTABLISH CONCLUSIVELY
THAT ALL OF THE DAMAGES OCCURRED WHILE THE GOODS WERE IN TRANSIT AND
THEREFORE COVERED BY THE POLICIES. FURTHERMORE, IT IS DOUBTFUL THAT THE
PROVISIONS OF THE POLICIES RELATING TO DAMAGE CLAIMS WERE COMPLIED WITH
UPON RECEIPT OF THE CONSIGNMENTS AT DESTINATION IN ORDER TO OVERCOME THE
TECHNICAL DEFENSES NOW INTERPOSED BY THE INSURANCE COMPANIES.
IN VIEW OF THESE CIRCUMSTANCES WE ARE UNABLE TO RECOMMEND THAT ANY
FURTHER PROCEEDINGS BE UNDERTAKEN BY THE EMBASSY IN ROME, AND THEREFORE
WE ARE CLOSING THE FILE IN THIS CASE.
ENCLOSURES A AND B RECEIVED WITH THE REFERRED-TO CORRESPONDENCE ARE
RETURNED.
B-139161, AUG. 7, 1959
TO STAFF SERGEANT WILLIAM M. MOSS:
REFERENCE IS MADE TO YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL OF YOUR
DEPENDENTS (WIFE AND FOUR CHILDREN) FROM NEW YORK, NEW YORK, TO BRIZE,
NORTON, ENGLAND.
BY PARAGRAPH 1, SPECIAL ORDERS NO. 548, DATED JUNE 6, 1958, YOU WERE
RELIEVED FROM ASSIGNMENT AT HUNTER AIR FORCE BASE, GEORGIA, AND
TRANSFERRED TO DUTY OVERSEAS. THE ORDERS AUTHORIZED CONCURRENT TRAVEL
OF DEPENDENTS AND FURTHER AUTHORIZED YOU TO PROCEED TO YOUR HOME,
WAYNESVILLE, NORTH CAROLINA, AS LEAVE NOT EARLIER THAN JUNE 29, 1958.
THE ORDERS INSTRUCTED YOU AND YOUR DEPENDENTS TO BE AVAILABLE AT THAT
ADDRESS FOR PORT CALL OF THE COMMANDING GENERAL FORT HAMILTON, NEW YORK,
ON OR AFTER AUGUST 1, 1958, AND IF PORT CALL WAS NOT RECEIVED 15 DAYS
PRIOR TO THAT DATE, YOU WERE TO CONTACT FORT HAMILTON, PREFERABLY BY
WIRE, FOR FURTHER INSTRUCTIONS.
IT APPEARS THAT ON JULY 15, 1958, YOU WIRED FORT HAMILTON AND WERE
ADVISED THAT THE PORT CALL WOULD BE DELAYED BECAUSE SPACE WAS NOT
AVAILABLE; THAT YOU SHOULD USE ALL ACCRUED LEAVE PLUS 30 DAYS' ADVANCE
LEAVE, AND THAT YOU SHOULD MAKE FURTHER INQUIRY PRIOR TO EXPIRATION OF
ADVANCE LEAVE. YOU ALLEGE THAT ON AUGUST 19, 1958, YOU PHONED THE NEW
YORK INSTALLATION, AS INSTRUCTED, AND WERE ADVISED OF FURTHER DELAY
BECAUSE OF NONRECEIPT OF PASSPORTS FOR YOUR TWO STEPSONS. YOU FURNISHED
THE INFORMATION THAT THOSE CHILDREN WERE COVERED BY YOUR WIFE'S BRITISH
PASSPORT. ON THE SAME DATE YOU WERE ADVISED THAT YOU WERE SCHEDULED TO
TRAVEL BY GOVERNMENT AIR FROM MCGUIRE AIR FORCE BASE, NEW JERSEY, ON
AUGUST 26, 1958, BUT THAT SPACE WAS NOT AVAILABLE FOR TRAVEL OF YOUR
DEPENDENTS ON THAT DATE. YOU DEPARTED MCGUIRE AIR FORCE BASE EN ROUTE
TO BURTONWOOD, ENGLAND, ON AUGUST 26, 1958. YOU HAVE FURNISHED A
CERTIFICATE STATING THAT SPACE WAS NOT AVAILABLE FOR TRAVEL OF YOUR
DEPENDENTS ON THE SAME FLIGHT. YOU FURTHER STATE YOU WERE ADVISED ON
AUGUST 19, 1958, THAT THE AVAILABILITY OF SPACE FOR THE TRAVEL OF YOUR
DEPENDENTS "COULD BE ANY TIME UP TO SIX OR EIGHT MONTHS," BUT THAT IF
YOU WANTED TO BEAR THE EXPENSE FOR THEIR TRAVEL YOU WOULD BE REIMBURSED.
THE RECORD HERE DOES NOT SUPPORT THAT STATEMENT. IT IS
ADMINISTRATIVELY REPORTED, HOWEVER, THAT ON AUGUST 19, 1958, YOU
REQUESTED THAT YOUR FAMILY'S PASSPORTS BE FORWARDED TO YOU AT YOUR LEAVE
ADDRESS, AND THAT YOU WERE ADVISED IF YOU ARRANGED FOR THEIR COMMERCIAL
TRANSPORTATION TO ENGLAND FROM PERSONAL FUNDS YOU WOULD NOT BE
REIMBURSED. SUCH ADVICE UNDOUBTEDLY WAS PREMISED ON THE FACT THAT
GOVERNMENT TRANSPORTATION WOULD BE AVAILABLE AND COULD BE FURNISHED IN
PROPER TIME. ON AUGUST 22, 1958, YOU PURCHASED COMMERCIAL AIR
TRANSPORTATION FOR YOUR DEPENDENTS FROM NEW YORK TO LONDON. THEY
DEPARTED ON AUGUST 25, 1958.
THE TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES
IS GOVERNED BY JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO SECTION
303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C.
253. PARAGRAPH 7002-1B OF THOSE REGULATIONS PROVIDES THAT FOR
TRANSOCEANIC TRAVEL OF DEPENDENTS TO OR FROM AREAS OUTSIDE THE UNITED
STATES, GOVERNMENT AIRCRAFT OR VESSELS WILL BE UTILIZED, IF AVAILABLE,
EXCEPT IN CERTAIN INSTANCES. THE ONLY EXCEPTION WHICH SEEMS PERTINENT
TO YOUR CLAIM IS THE ONE WHICH PERMITS USE OF COMMERCIAL TRANSPORTATION
WHEN IT IS DETERMINED BY THE APPROPRIATE AUTHORITY OF THE SERVICE
CONCERNED THAT THE USE OF GOVERNMENT FACILITIES WOULD INVOLVE A DELAY OF
MORE THAN 30 DAYS. THE DEPARTMENT OF THE AIR FORCE HAS ADVISED US THAT
IT HAS BEEN AIR FORCE POLICY SINCE MAY 27, 1958, TO MOVE ALL AIR FORCE
PERSONNEL AND THEIR ACCOMPANYING DEPENDENTS BY AIR UNLESS THE DEPENDENTS
REFUSE TO FLY; THAT YOUR FAMILY DID NOT REFUSE TO TRAVEL BY THAT MEANS,
AND THAT THERE HAS ALWAYS BEEN ADEQUATE GOVERNMENT AIRLIFT TO MOVE ALL
PERSONNEL PROGRAMMED TO MOVE DURING A GIVEN MONTH. WHILE THAT REPORT IS
NOT IN AGREEMENT WITH THE INFORMATION YOU STATE WAS FURNISHED YOU AS TO
THE AVAILABILITY OF GOVERNMENT TRANSPORTATION, IT LONG HAS BEEN THE RULE
OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT IN CASES INVOLVING CONFLICT
BETWEEN STATEMENTS MADE BY THE CLAIMANT AND OFFICIAL REPORTS FROM THE
ADMINISTRATIVE OFFICE, TO ACCEPT THE LATTER. FURTHERMORE, EVEN IF IT
WERE ESTABLISHED THAT YOU RECEIVED INFORMATION AS ALLEGED, SUCH
ERRONEOUS INFORMATION WOULD CONSTITUTE NO LEGAL BASIS FOR ALLOWING YOUR
CLAIM. ON THE BASIS OF THE FACTS PRESENTED IT MUST BE CONCLUDED THAT
GOVERNMENT TRANSPORTATION WOULD HAVE BEEN AVAILABLE FOR TRAVEL OF YOUR
DEPENDENTS AND THAT IT WOULD HAVE BEEN FURNISHED WITHIN 30 DAYS AFTER
YOUR DEPARTURE AND, HENCE, THERE IS NO LEGAL BASIS FOR THE PAYMENT OF
YOUR CLAIM.
THE DEPARTMENT OF THE AIR FORCE IN TRANSMITTING YOUR CLAIM TO THIS
OFFICE RECOGNIZED THAT THERE IS NO LEGAL AUTHORITY FOR PAYMENT BY THE
ADMINISTRATIVE BRANCH OF THE GOVERNMENT. HOWEVER, IT RECOMMENDED THAT
YOUR CLAIM BE GIVEN FAVORABLE CONSIDERATION UNDER THE PROVISIONS OF THE
MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 31 U.S.C. 236.
THAT ACT PROVIDES FOR THE SUBMISSION TO THE CONGRESS BY THIS OFFICE
OF ONLY THOSE CASES WHEREIN THERE IS A LEGAL OR EQUITABLE LIABILITY ON
THE PART OF THE GOVERNMENT AND SETTLEMENT CANNOT BE MADE SOLELY BECAUSE
OF THE ABSENCE OF AN APPROPRIATION AVAILABLE THEREFOR. SINCE, AS
INDICATED ABOVE, THERE IS NO LIABILITY ON THE PART OF THE GOVERNMENT IN
THIS CASE, THE MATTER IS NOT WITHIN THE PURVIEW OF THE MERITORIOUS
CLAIMS ACT AND WE HAVE NO AUTHORITY THEREUNDER TO SUBMIT IT TO THE
CONGRESS. 38 COMP. GEN. 314.
B-139645, AUG. 7, 1959
TO MR. JULIUS W. PULLEN, SFC, RA 14 223 389:
REFERENCE IS MADE TO YOUR LETTER OF APRIL 25, 1959, WITH ENCLOSURE,
REQUESTING REVIEW OF SETTLEMENT DATED APRIL 16, 1959, WHICH DISALLOWED
YOUR CLAIM FOR PER DIEM INCIDENT TO TEMPORARY DUTY PERFORMED AT CAMP
HAVEN, WISCONSIN, DURING THE PERIOD JUNE 2 TO JULY 31, 1957.
BY LETTER ORDERS 5-23 DATED MAY 8, 1957, FORT SHERIDAN, ILLINOIS, YOU
WERE DIRECTED TO PROCEED FROM THAT STATION TO CAMP HAVEN FOR TEMPORARY
DUTY FOR APPROXIMATELY THREE MONTHS FOR THE PURPOSE OF SUPPORT OF SUMMER
TRAINING. THE ORDERS SPECIFICALLY PROVIDED THAT ALL TEMPORARY DUTY
PERFORMED THEREUNDER CONSTITUTED DUTY OF A TYPE CONTEMPLATED BY
PARAGRAPH 4201.6, JOINT TRAVEL REGULATIONS. YOUR CLAIM WAS DISALLOWED
ON THE BASIS THAT WHILE IT WAS SUPPORTED BY A CERTIFICATE THAT YOU WERE
FURNISHED GOVERNMENT TEMPORARY DUTY QUARTERS SEPARATELY, OR SUCH
QUARTERS WERE AVAILABLE, FROM THE RESERVE COMPONENTS PERSONNEL
PARTICIPATING IN THE TRAINING.
PARAGRAPH 4201.6 OF THE JOINT TRAVEL REGULATIONS, CITED IN YOUR
ORDERS, PROHIBITS THE PAYMENT OF PER DIEM TO MEMBERS OF THE UNIFORMED
SERVICES WHILE PARTICIPATING IN FIELD DUTY TYPE ACTIVITIES (OTHER THAN
ADVANCED PLANNING AND CRITIQUE PHASES) WHERE BOTH RATIONS IN KIND AND
QUARTERS ARE AVAILABLE, OR FURNISHED, EXCEPT FOR PERIOD INVOLVING
TEMPORARY DUTY ON AN INSTALLATION OF THE UNIFORMED SERVICES AND PER DIEM
IS AUTHORIZED IN ACCORDANCE WITH REGULATIONS ISSUED BY THE SECRETARY OF
THE SERVICE CONCERNED. SUCH EXCEPTION HAS NO APPLICATION TO ANY DUTY
SITUATION NOT PERFORMED AT AN INSTALLATION OF THE UNIFORMED SERVICES.
PARAGRAPH 3C OF ARMY REGULATIONS 35-3080, IN EFFECT AT THE TIME HERE
INVOLVED, IMPLEMENTING THE ABOVE EXCEPTION TO THE PROHIBITION AGAINST
PAYMENT OF PER DIEM TO MEMBERS PARTICIPATING IN FIELD DUTY TYPE
ACTIVITIES, DEFINES AN ,INSTALLATION OF THE UNIFORMED SERVICES" AS "THE
REAL ESTATE AND IMPROVEMENTS THEREON DESIGNATED AS A MILITARY CAMP,
POST, STATION, DEPOT, OR RESERVATION AT WHICH FUNCTIONS OF THE UNIFORMED
SERVICES ARE CARRIED ON AND WHICH HAS BEEN ESTABLISHED BY ORDER OF ONE
OF THE SERVICES.' IN VIEW OF THE APPARENT PURPOSE FOR WHICH AUTHORITY TO
PAY PER DIEM INCIDENT TO FIELD DUTY AT AN INSTALLATION WAS EXTENDED IN
THE JOINT TRAVEL REGULATIONS, THE IMPLEMENTING REGULATIONS ARE
CONSIDERED TO CONTEMPLATE AND TO REFER ONLY TO ACTIVE INSTALLATIONS IN
OPERATION UNDER THE NORMAL CIRCUMSTANCES OF HAVING QUARTERS AND MESSING
FACILITIES PROVIDED AND AVAILABLE NOT ONLY TO PERSONNEL PERMANENTLY
STATIONED THERE BUT ALSO TO THE COMPARATIVELY FEW PERSONS WHO MIGHT BE
ASSIGNED THERE FROM TIME TO TIME ON A TEMPORARY BASIS.
IN RESPONSE TO OUR INQUIRY AS TO THE STATUS OF CAMP HAVEN, WISCONSIN,
INCLUDING THE USE TO WHICH IT WAS PUT DURING THE PERIOD OF YOUR CLAIM,
THE DEPARTMENT OF THE ARMY REPORTED THAT "CAMP HAVEN, WISCONSIN, WAS
USED AS AN ACTIVE DUTY TRAINING SITE DURING THE PERIOD 8 MAY--- 31 JULY,
1957.' IN VIEW OF THIS REPORT THE CONCLUSION APPEARS REQUIRED THAT CAMP
HAVEN WAS NOT AN ,INSTALLATION OF THE UNIFORMED SERVICES" WITHIN THE
MEANING OF THE PER DIEM EXCEPTION PROVISIONS OF ARMY REGULATIONS 35-3080
AS THEN IN EFFECT. HENCE, THERE WOULD APPEAR TO BE NO LEGAL BASIS FOR
ALLOWING YOUR CLAIM.
B-139695, AUG. 7, 1959
TO LIEUTENANT COLONEL J. L. WHIPPLE, F.C., DISBURSING OFFICER:
REFERENCE IS MADE TO YOUR LETTER DATED MAY 5, 1959, FORWARDED UNDER
D.O. NUMBER 418 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND
ALLOWANCE COMMITTEE, REQUESTING AN ADVANCE DECISION ON AN ENCLOSED
VOUCHER PROPOSING PAYMENT OF RETIRED PAY IN THE NET AMOUNT OF $5,729.41,
TO THE ESTATE OF THE LATE MAJOR EDMUND T. DOUGLAS, RETIRED.
MAJOR DOUGLAS WAS AWARDED RETIRED PAY BY LETTER ORDER DATED APRIL 7,
1959, AND WAS PLACED ON THE RETIRED LIST UNDER THE PROVISIONS OF 10
U.S.C. 1331-1337, WITH ENTITLEMENT TO RECEIVE RETIRED PAY EFFECTIVE
JANUARY 1, 1950.
MAJOR DOUGLAS COMPLETED AND SIGNED A DA FORM 1041 ENTITLED "ELECTION
OF OPTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953,"
10 U.S.C. 1431-1438, ON JANUARY 21, 1959. WHILE THEREBY INDICATING
THAT HE DESIRED TO PARTICIPATE IN THE CONTINGENCY OPTION ACT PROGRAM AND
ELECTING OPTION I WITH OPTION IV AT ONE-HALF REDUCED RETIRED PAY, HE
ALSO CHECKED ITEM 11 OF THE FORM READING "I DO NOT DESIRE TO RECEIVE
REDUCED RETIRED PAY IN ORDER TO PROVIDE AN ANNUITY FOR MY DEPENDENTS.'
SINCE THE ELECTION OF AN ANNUITY UNDER THE PROGRAM REQUIRES A PRESCRIBED
REDUCTION IN RETIRED PAY THE MILITARY AUTHORITIES WROTE TO MAJOR DOUGLAS
ASKING HIM TO SUBMIT A SIGNED STATEMENT REGARDING HIS INTENT. BY LETTER
OF APRIL 19, 1959, THE MILITARY AUTHORITIES WERE INFORMED THAT MAJOR
DOUGLAS DIED FEBRUARY 9, 1959, WITHOUT FURTHER WRITTEN INDICATION OF HIS
INTENT. THIS LETTER, SIGNED BY W. T. DOUGLAS, SON, AND MRS. MARY A.
DOUGLAS, SPOUSE OF THE DECEDENT, CO-EXECUTORS OF HIS WILL, STATED THAT
THE CHECK AT ITEM 11 WAS AN ERROR AND THAT AN ANNUITY WAS INTENDED.
FORM DD 418, ALSO SIGNED BY THE CO-EXECUTORS, WAS FORWARDED INDICATING
THIS INTENT. THE AMOUNT PROPERLY PAYABLE ON THE SUBMITTED VOUCHER
DEPENDS UPON WHETHER MAJOR DOUGLAS IS TO BE REGARDED AS HAVING VALIDLY
ELECTED THE ANNUITY FOR HIS WIDOW.
ADMITTEDLY, TO THE INFORMED, THE INTENT OF MAJOR DOUGLAS AS RECORDED
ON THE FORM 1041 IS NOT CLEAR. THE RECORD AS A WHOLE, HOWEVER, SUGGESTS
THAT MAJOR DOUGLAS UNDERSTOOD ITEM 11 TO MEAN THAT HE HAD THE CHOICE OF
ELECTING THE SELECTED ANNUITY EITHER WITH OR WITHOUT A REDUCTION IN HIS
RETIRED PAY. SUCH AN INTERPRETATION--- BY A PERSON NOT FAMILIAR WITH
THAT PORTION OF THE STATUTE REQUIRING A REDUCTION OF RETIRED PAY AND
BASED SOLELY ON THE FORM--- DOES NOT APPEAR TO BE UNREASONABLE. IN THIS
RESPECT, ASIDE FROM MAKING IT CLEAR TO PARTICIPANTS IN THE CONTINGENCY
OPTION ACT PROGRAM THAT THEIR RETIRED PAY WILL BE REDUCED, THE PURPOSE
OF INCLUDING ITEM 11 IN THE FORM IS NOT APPARENT. OBVIOUSLY ITS PURPOSE
IS NOT TO DEFEAT AN OTHERWISE VALID ELECTION AS EVIDENCED BY THE
VOLUNTARY EXECUTION OF THE FORM AND COMPLETION OF THE MATERIAL ITEMS OF
THE FORM. THUS, REGARDLESS OF WHAT MAJOR DOUGLAS INTENDED WHEN HE
CHECKED ITEM 11, IT IS OUR VIEW THAT HIS ACT IN THAT RESPECT MAY NOT BE
VIEWED AS EVIDENCE THAT HE DID NOT INTEND TO PROVIDE THE SELECTED
ANNUITY FOR HIS WIDOW.
THE PAYMENT PROPOSED ON THE SUBMITTED VOUCHER REFLECTS AN ADJUSTMENT
TO EFFECT RETIRED PAY DEDUCTIONS TO PROVIDE THE ANNUITY ELECTED BY MAJOR
DOUGLAS AND IT IS ASSUMED THAT SUCH ADJUSTMENT HAS BEEN PROPERLY
COMPUTED. ACCORDINGLY, THE PAYMENT AS PROPOSED IS AUTHORIZED, IF
OTHERWISE CORRECT. THE VOUCHER IS RETURNED HEREWITH.
B-139754, AUG. 7, 1959
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO LETTER OF MAY 26, 1959, FROM THE ASSISTANT
SECRETARY OF THE NAVY REQUESTING DECISION AS TO THE PROPRIETY OF
CHARGING NAVAL APPROPRIATIONS TO DEFRAY DRAYAGE COSTS INCURRED IN A
PARTIAL WITHDRAWAL OF HOUSEHOLD GOODS FROM TEMPORARY STORAGE BY A MEMBER
OF THE UNIFORMED SERVICES. THE REQUEST HAS BEEN ASSIGNED CONTROL NO.
59-23 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.
THE SPECIFIC CASE INVOLVES A MEMBER WHOSE HOUSEHOLD GOODS WERE MOVED
AT GOVERNMENT EXPENSE UPON PERMANENT CHANGE OF STATION. IT IS STATED
THAT PRIOR TO THE SHIPMENT THE MEMBER WAS ADVISED HE WOULD BE ASSIGNED
INITIALLY TO PARTIALLY FURNISHED TEMPORARY QUARTERS AT HIS NEW STATION
FOR THE REASON THAT PERMANENT QUARTERS WERE NOT THEN AVAILABLE.
CONSEQUENTLY, THE MEMBER SEGREGATED AND TAGGED CERTAIN ITEMS WHICH HE
INTENDED FOR EARLY DELIVERY TO HIS TEMPORARY QUARTERS. UPON ARRIVAL AT
DESTINATION, THE HOUSEHOLD EFFECTS, WEIGHING 10,460 POUNDS, WERE
TEMPORARILY STORED IN COMMERCIAL FACILITIES. SUBSEQUENTLY, THE MEMBER
WITHDREW THE TAGGED ITEMS AND HAD THEM DELIVERED TO HIS TEMPORARY
QUARTERS. THE GOVERNMENT PAID $96.75 FOR STORAGE, WAREHOUSE HANDLING
AND LOCAL DRAYAGE OF THOSE ITEMS. UPON ASSIGNMENT TO PERMANENT
QUARTERS, THE REMAINING HOUSEHOLD GOODS WERE WITHDRAWN AT A COST TO THE
GOVERNMENT OF $296.55 FOR STORAGE, WAREHOUSE HANDLING AND LOCAL DRAYAGE.
IT IS REPORTED THAT IN EACH CASE THE DRAYAGE WAS AT THE RATE OF $1.50
PER HUNDREDWEIGHT AND THAT THE RATE WOULD HAVE BEEN THE SAME IF DRAYAGE
HAD BEEN IN ONE LOT, SO THAT NO GREATER COST WAS INCURRED BY REASON OF
DRAYAGE IN TWO LOTS. IT IS STATED, HOWEVER, THAT UPON ADMINISTRATIVE
REVIEW OF THE PAYMENTS, QUESTION HAS ARISEN AS TO THE PROPRIETY OF THE
PAYMENT FOR DRAYAGE IN CONNECTION WITH THE PARTIAL WITHDRAWAL.
SECTION 303 (C) OF THE CAREER COMPENSATION ACT AS AMENDED, 37 U.S.C.
253, PROVIDES THAT UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE
SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES WHEN ORDERED TO
MAKE A CHANGE OF STATION SHALL BE ENTITLED TO TRANSPORTATION (INCLUDING
PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE AND REPACKING) OF BAGGAGE
AND HOUSEHOLD EFFECTS. PARAGRAPH 8100.3 OF THE JOINT TRAVEL
REGULATIONS, PROVIDES THAT WITHDRAWAL OF PARTIAL LOTS OF HOUSEHOLD GOODS
FROM TEMPORARY STORAGE AT GOVERNMENT EXPENSE IS NOT AUTHORIZED, BUT THAT
A MEMBER MAY WITHDRAW A PART OF HIS HOUSEHOLD GOODS FROM TEMPORARY
STORAGE UPON PAYMENT OF ALL COSTS OF ACCESS AND REMOVAL WITHOUT THEREBY
FORFEITING HIS RIGHT TO CONTINUED TEMPORARY STORAGE AND ULTIMATE
DELIVERY OF THE REMAINDER OF HIS HOUSEHOLD GOODS.
UNDER THE LAW AND CONTROLLING REGULATIONS THE MEMBER IS ENTITLED TO
TRANSPORTATION OF HIS EFFECTS FROM HIS RESIDENCE AT THE OLD STATION TO
HIS RESIDENCE AT THE NEW STATION AND TO NECESSARY STORAGE INCIDENT TO
TRANSPORTATION. NORMALLY, WHERE TEMPORARY STORAGE IS REQUIRED, THE
EFFECTS ARE REMOVED FROM STORAGE AND HAULED TO THE MEMBER'S RESIDENCE IN
ONE LOT AT GOVERNMENT EXPENSE. THE APPARENT PURPOSE OF PARAGRAPH 8100.3
IS TO PERMIT THE MEMBER TO WITHDRAW A PORTION OF HIS EFFECTS FROM
STORAGE ONLY IF HE PAYS THE COST OF ACCESS AND REMOVAL--- THIS BEING AN
EXPENSE THE GOVERNMENT ORDINARILY WOULD NOT INCUR. HE IS, HOWEVER,
ENTITLED TO DRAYAGE OF THOSE EFFECTS FROM STORAGE TO RESIDENCE AT
GOVERNMENT EXPENSE AND TO THE SUBSEQUENT DRAYAGE OF THE MAJOR PORTION OF
HIS EFFECTS UPON THEIR REMOVAL FROM STORAGE, NOT TO EXCEED THE COST HAD
THE EFFECTS BEEN HAULED IN ONE LOT.
ON THE BASIS OF THE FACTS PRESENTED, PAYMENT OF THE DRAYAGE COSTS WAS
PROPER.
B-139828, AUG. 7, 1959
TO MR. ROBERT O. BLANKENSHIP:
REFERENCE IS MADE TO YOUR LETTER DATED MAY 6, 1959, CONCERNING YOUR
INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $698.25, REPRESENTING
OVERPAYMENT FOR TRAVEL OF DEPENDENTS INCIDENT TO YOUR SERVICE IN THE
UNITED STATES AIR FORCE.
THE RECORD SHOWS THAT BY PARAGRAPH 8, SPECIAL ORDERS NO. 226, ISSUED
SEPTEMBER 30, 1953, AT HEADQUARTERS CHANUTE AIR FORCE BASE AND 3345TH
TECHNICAL TRAINING WING, CHANUTE AIR FORCE BASE, ILLINOIS, YOU WERE
RELIEVED FROM ASSIGNMENT AND DUTY AT THAT STATION AND ASSIGNED TO PARKS
AIR FORCE BASE, CALIFORNIA. YOU WERE TO REPORT NOT LATER THAN OCTOBER
25, 1953, FOR FURTHER TREATMENT, OBSERVATION AND/OR DISPOSITION.
INFORMATION FURNISHED BY THE HOSPITAL AT CHANUTE AIR FORCE BASE SETS
FORTH THE REASON FOR YOUR TRANSFER AS IN ACCORDANCE WITH AIR FORCE
MANUAL 35-4 FOR APPEARANCE BEFORE MEDICAL AND PHYSICAL EVALUATION
BOARDS. PURSUANT TO THE ABOVE MENTIONED ORDERS YOU EXECUTED A VOUCHER
FOR REIMBURSEMENT OF DEPENDENTS' TRAVEL FROM URBANA, ILLINOIS, TO SAN
FRANCISCO, CALIFORNIA, OCTOBER 6 TO 19, 1953, AND WERE PAID $352.65, AS
EVIDENCED BY DISBURSING OFFICER VOUCHER NO. 9180, OCTOBER 1953 ACCOUNTS
OF R. R. BRYANT, SYMBOL 225-066.
IT IS REPORTED THAT YOU WERE HOSPITALIZED AT THE 3275TH UNITED STATES
AIR FORCE HOSPITAL, PARKS AIR FORCE BASE, CALIFORNIA, A TOTAL OF 11
DAYS--- FROM OCTOBER 19 TO OCTOBER 29, 1953. BY PARAGRAPH 1, SPECIAL
ORDERS NO. 245, ISSUED OCTOBER 30, 1953, AT HEADQUARTERS, PARKS AIR
FORCE BASE, CALIFORNIA, YOU WERE DIRECTED TO PROCEED TO YOUR HOME OF
RECORD, 3855 GRAPEVINE, HUNTINGTON, WEST VIRGINIA, TO ARRIVE THERE ON
NOVEMBER 10, 1953, ON WHICH DATE YOU WERE TO BE RELIEVED FROM EXTENDED
ACTIVE DUTY. PURSUANT TO THOSE ORDERS YOU EXECUTED A VOUCHER FOR
REIMBURSEMENT OF DEPENDENTS' TRAVEL FROM PARKS AIR FORCE BASE,
CALIFORNIA, TO HUNTINGTON, WEST VIRGINIA, NOVEMBER 2 TO 11, 1953, AND
WERE PAID $406.05, AS EVIDENCED BY DISBURSING OFFICER VOUCHER NO.
13955, DECEMBER 1953 ACCOUNTS OF R. R. BRYANT, SYMBOL 225-066.
PARAGRAPH 7004-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT:
"SUBJECT TO SUBPAR. 4 WHEN A MEMBER IS TRANSFERRED FROM EITHER A
TEMPORARY OR PERMANENT DUTY STATION TO A HOSPITAL OR FROM A HOSPITAL
WHERE LISTED AS A PATIENT TO ANOTHER HOSPITAL FOR OBSERVATION AND
TREATMENT, TRANSPORTATION FOR HIS DEPENDENTS IS AUTHORIZED, AS FOR A
PERMANENT CHANGE OF STATION, FROM THE LAST PERMANENT DUTY STATION TO THE
CITY OR TOWN IN WHICH THE HOSPITAL IS LOCATED.'
SUBPARAGRAPH 4 PROVIDES, IN PART, AS FOLLOWS:
"4. CERTIFICATE REQUIRED. WHEN A MEMBER IS HOSPITALIZED AND A
CERTIFICATE IS EXECUTED BY THE COMMANDING OFFICER OF THE HOSPITAL
SETTING FORTH THE FINDING THAT THE PERIOD OF TREATMENT CAN BE EXPECTED
TO BE PROLONGED, DEPENDENTS OF THE MEMBER MAY BE TRANSPORTED AT
GOVERNMENT EXPENSE * * "
IN OUR LETTER OF FEBRUARY 4, 1959, YOU WERE INFORMED THAT AN
EXAMINATION OF THE RECORDS FAILED TO DISCLOSE THAT A CERTIFICATE, AS
REQUIRED BY SUBPARAGRAPH 4, HAD BEEN ISSUED BY THE COMMANDING OFFICER AT
PARKS AIR FORCE BASE, CALIFORNIA. THE CERTIFICATE FURNISHED BY YOU IN
SUPPORT OF THE PAYMENTS RECEIVED WAS ISSUED AT CHANUTE AIR FORCE BASE,
ILLINOIS, AND CANNOT BE HELD TO HAVE SATISFIED THE REQUIREMENTS
SPECIFIED BY SUBPARAGRAPH 4 SINCE IT IS CLEAR THAT THE COMMANDING
OFFICER OF THE HOSPITAL WHO IS TO ISSUE THE CERTIFICATE REQUIRED BY THAT
SUBPARAGRAPH IS THE COMMANDING OFFICER OF A HOSPITAL RECEIVING THE
PATIENT. THE OBVIOUS PURPOSE OF THE CITED REGULATIONS IS TO PREVENT
UNNECESSARY TRAVEL OF DEPENDENTS--- TRAVEL INCIDENT TO A BRIEF, AS
CONTRASTED TO A PROLONGED, HOSPITALIZATION--- BY REQUIRING AN EVALUATION
OF THE PATIENT'S CONDITION AND PROGNOSIS BY THE RECEIVING HOSPITAL
AUTHORITIES BEFORE TRANSPORTATION OF DEPENDENTS IS AUTHORIZED.
IN YOUR LETTER OF MAY 6, 1959, YOU POINT OUT THAT YOUR ORDERS (S.O.
NO. 226, SEPTEMBER 30, 1953) DIRECTED A PERMANENT CHANGE OF STATION FROM
CHANUTE AIR FORCE BASE TO PARKS AIR FORCE BASE AND APPARENTLY YOU
CONTEND THAT TRAVEL OF DEPENDENTS IS AUTHORIZED ON THE BASIS OF A
PERMANENT CHANGE OF STATION. PARAGRAPH 1150-10 OF THE JOINT TRAVEL
REGULATIONS DEFINES A PERMANENT STATION AS THE POST OF DUTY OR OFFICIAL
STATION TO WHICH A MEMBER IS "ASSIGNED OR ATTACHED FOR DUTY.' ALTHOUGH
THE REGULATIONS (PARAGRAPH 7004-1 AND 7004-4) AUTHORIZE TRANSPORTATION
OF DEPENDENTS, IF THE PROPER CERTIFICATE IS ISSUED, WHEN A MEMBER IS
TRANSFERRED TO A HOSPITAL OR FROM ONE HOSPITAL TO ANOTHER HOSPITAL, IT
WILL BE NOTED THAT SUCH AUTHORIZATION IS NOT ON THE BASIS THAT AN ACTUAL
PERMANENT CHANGE OF STATION IS INVOLVED BUT FOR TRANSPORTATION "AS FOR A
PERMANENT CHANGE OF STATION.' WHILE SPECIAL ORDERS NO. 226 DIRECTED A
PERMANENT CHANGE OF STATION YOU WERE NOT ASSIGNED OR ATTACHED TO PARKS
AIR FORCE BASE HOSPITAL FOR DUTY. IT IS CLEAR THAT YOU WERE TRANSFERRED
TO THE HOSPITAL FOR APPEARANCE BEFORE MEDICAL AND PHYSICAL EVALUATION
BOARDS AND FOR FURTHER "TREATMENT, OBSERVATION AND/OR DISPOSITION.'
HENCE, UNDER THE LAW AND THE REGULATIONS, THE SPECIAL ORDERS NO. 226 MAY
NOT BE ACCEPTED AS CONSTITUTING A PERMANENT CHANGE OF STATION FOR
PURPOSES OF REIMBURSEMENT FOR TRAVEL OF DEPENDENTS. SEE, ALSO, 4 COMP.
GEN. 653 AND 17 ID. 133, WHEREIN IT WAS HELD THAT ADMISSION TO A
HOSPITAL FOR TREATMENT DOES NOT OPERATE AS A PERMANENT CHANGE OF STATION
ENTITLING DEPENDENTS TO TRANSPORTATION WHEN THE OFFICER IS STATIONED
WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES.
HOWEVER, AS WAS NOTED IN OUR PRIOR SETTLEMENT, YOU WERE ENTITLED TO
TRANSPORTATION OF YOUR DEPENDENTS NOT TO EXCEED THE DISTANCE FROM YOUR
LAST PERMANENT DUTY STATION (CHANUTE AIR FORCE BASE, ILLINOIS) TO YOUR
HOME (HUNTINGTON, WEST VIRGINIA), A DISTANCE OF 403 MILES, AT 15 CENTS
PER MILE. THIS AMOUNTS TO $60.45 WHICH REDUCES YOUR INDEBTEDNESS TO
$698.25 ($352.65 PLUS $486.05 MINUS $60.45 EQUALS $698.25).
ACCORDINGLY, YOU ARE INDEBTED TO THE UNITED STATES IN THE SUM OF
$698.25. IN ORDER TO PRECLUDE THE NECESSITY OF FURTHER LEGAL ACTION IN
THIS MATTER, PAYMENT OF THIS AMOUNT SHOULD BE MADE BY CHECK OR MONEY
ORDER PAYABLE TO THE "U.S. GENERAL ACCOUNTING OFFICE," AND FORWARDED TO
THE FOLLOWING ADDRESS:
U.S. GENERAL ACCOUNTING OFFICE
POST OFFICE BOX 2610
B-139867, AUG. 7, 1959
TO MRS. PURITA LIWANAG VDA DE BISENTE:
REFERENCE IS MADE TO YOUR LETTER DATED MAY 7, 1959, CONCERNING YOUR
CLAIM FOR ARREARS OF PAY BELIEVED TO BE DUE YOU AS THE WIDOW OF THE LATE
DOMINGO BISENTE, AS OF FEBRUARY 27, 1942, THE DATE OF HIS DEATH WHILE
SERVING AS AN ENLISTED MAN, UNITED STATES NAVY.
AFTER THE RECEIPT OF YOUR ORIGINAL CLAIM DATED OCTOBER 3, 1945, FOR
THE ARREARS OF PAY DUE THE DECEDENT, OUR CLAIMS DIVISION BY LETTER DATED
DECEMBER 31, 1946, ADVISED YOU THAT SETTLEMENT OF THE CLAIM WAS BEING
STATED IN FAVOR OF THE JUDGE ADVOCATE GENERAL OF THE PHILIPPINE ARMY, AS
ADMINISTRATOR OF THE DECEDENT'S ESTATE, AND THAT YOUR CLAIM AS WIDOW
SHOULD BE SUBMITTED TO HIM. BY SETTLEMENT DATED JANUARY 2, 1947, THE
JUDGE ADVOCATE GENERAL OF THE PHILIPPINE ARMY, AS ADMINISTRATOR OF THE
ESTATE OF THE DECEDENT, WAS ALLOWED THE SUM OF $340.05, REPRESENTING
ARREARS OF PAY DUE AT THE DATE OF DEATH. SUBSEQUENTLY, IN REPLY TO YOUR
LETTER OF MARCH 7, 1950, THE CLAIMS DIVISION BY LETTER OF APRIL 26,
1950, ADVISED YOU THAT FURTHER CORRESPONDENCE IN CONNECTION WITH YOUR
CLAIM SHOULD BE ADDRESSED TO THE JUDGE ADVOCATE GENERAL OF THE
PHILIPPINE ARMY, SINCE PAYMENT OF THE FULL AMOUNT FOUND DUE HAD BEEN
ALLOWED TO HIM BY THE SETTLEMENT OF JANUARY 2, 1947.
ALLOWED TO HIM BY THE SETTLEMENT OF JANUARY 2, 1947.
THE SETTLEMENT OF CLAIMS FOR AMOUNTS DUE DECEASED MEMBERS OF THE NAVY
WHO DIED PRIOR TO JANUARY 1, 1956, WAS GOVERNED BY THE ACT OF MAY 27,
1908, 35 STAT. 373, AS AMENDED BY THE ACT OF FEBRUARY 25, 1946, 60 STAT.
30. WHILE THAT ACT PERMITS PAYMENT OF THE AMOUNT DUE TO A WIDOW, SUCH
PAYMENT IS AUTHORIZED ONLY IN THE EVENT A DEMAND IS NOT PRESENTED BY A
DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE. UPON THE RECEIPT OF
SUCH A DEMAND BY A LEGAL REPRESENTATIVE THE ACT REQUIRED THAT THE AMOUNT
DUE BE ALLOWED TO SUCH REPRESENTATIVE.
PHILIPPINE REPUBLIC ACT NO. 136, SECTION 1, AS AMENDED, NOW CONTAINED
IN SECTION 58 OF TITLE 78, PHILIPPINE ANNOTATED LAWS PROVIDES, AMONG
OTHER THINGS, THAT MONIES UNDER THE LAWS OF THE UNITED STATES AND OF THE
PHILIPPINES DUE TO THE DECEASED OR INCOMPETENT FILIPINOS WHO WERE
MEMBERS
OF THE UNITED STATES ARMY, UNITED STATES NAVY, OR THE PHILIPPINE
SCOUTS, THE DECEDENTS BEING DOMICILED IN THE PHILIPPINES AT THE TIME OF
THEIR DEATH, SHALL BE ADMINISTERED BY THE JUDGE ADVOCATE GENERAL OF THE
PHILIPPINE ARMY, OR HIS DULY AUTHORIZED REPRESENTATIVES.
UNDER THE ABOVE STATUTES, WHERE THE DECEASED MEMBER WAS A CITIZEN OR
DOMICILIARY OF THE PHILIPPINES AT THE TIME OF HIS DEATH, OCCURRING
BEFORE JANUARY 1, 1956, THE LAW REQUIRES THAT THE JUDGE ADVOCATE
GENERAL, AS THE ADMINISTRATOR OF THE ESTATE, BE RECOGNIZED AS THE LAWFUL
CLAIMANT. HENCE, THE SETTLEMENT OF JANUARY 2, 1947, ALLOWING THE AMOUNT
DUE TO THE JUDGE ADVOCATE GENERAL OF THE PHILIPPINE ARMY, AS THE
ADMINISTRATOR OF THE ESTATE OF THE DECEDENT, WAS PROPER AND CONSTITUTED
AN ACQUITTANCE TO THE GOVERNMENT OF ITS OBLIGATION IN THE MATTER.
ACCORDINGLY, WE AGAIN MUST ADVISE YOU THAT ANY PAYMENT OF THE ARREARS
OF PAY TO YOU IS A MATTER FOR ADJUSTMENT WITH THE JUDGE ADVOCATE GENERAL
OF THE PHILIPPINE ARMY, NOW THE JUDGE ADVOCATE GENERAL OF THE ARMED
FORCES OF THE PHILIPPINES. WE SUGGEST THAT YOU RENEW YOUR CLAIM TO THE
OFFICE OF THAT OFFICIAL AND IF YOU ARE UNABLE TO OBTAIN SATISFACTION
PERHAPS THE REPRESENTATIVE OF A LOCAL SERVICEMAN'S ORGANIZATION MAY BE
ABLE TO ASSIST YOU.
B-140063, AUG. 7, 1959
TO MR. GEORGE SHOOP:
REFERENCE IS MADE TO A REQUEST FOR RECONSIDERATION OF THE ACTION
TAKEN IN OUR CLAIMS DIVISION SETTLEMENT DATED JULY 16, 1958, WHICH
SETTLEMENT DISALLOWED YOUR CLAIM FOR LIBERTY LOAN BONDS BELIEVED TO BE
PURCHASED THROUGH DEDUCTIONS FROM YOUR PAY WHILE SERVING IN THE UNITED
STATES ARMY DURING WORLD WAR I. THE REQUEST FOR RECONSIDERATION WAS
SUBMITTED TO THIS OFFICE ON YOUR BEHALF BY MR. JOHN J. CORCORAN,
NATIONAL REHABILITATION COMMISSION, THE AMERICAN LEGION, WASHINGTON,
.C., AT THE REQUEST OF MR. WALTER H. LANGE, FIELD SERVICE OFFICER, THE
AMERICAN LEGION, DEPARTMENT OF INDIANA.
IN YOUR LETTER POSTMARKED NOVEMBER 19, 1957, ADDRESSED TO THE UNITED
STATES TREASURY AND REFERRED HERE THROUGH THE DEPARTMENT OF THE ARMY,
YOU STATED THAT YOU PURCHASED LIBERTY BONDS DURING WORLD WAR I; THAT
AFTER YOUR DISCHARGE AND RETURN HOME YOU WERE UNABLE TO LOCATE YOUR
BONDS; THAT IN 1944 YOU WERE ABLE TO OBTAIN THE SERIAL NUMBERS OF THE
BONDS; THAT YOUR HOME WAS DESTROYED BY FIRE AND THE SERIAL NUMBERS WERE
LOST; AND THAT YOU WERE TO BE NOTIFIED WHEN YOUR BONDS WERE LOCATED,
BUT THAT YOU RECEIVED NO SUCH NOTIFICATION.
AN EXAMINATION OF A TRANSCRIPT OF YOUR ARMY PAY RECORD SHOWS THAT
BOND DEDUCTIONS AT $25 PER MONTH FROM OCTOBER 1917 THROUGH JUNE 1918,
AND $23.75 FOR THE MONTH OF JULY 1918, OR A TOTAL OF $248.75 WERE MADE
FROM YOUR PAY DURING THAT PERIOD. HOWEVER, YOUR CLAIM WAS DISALLOWED BY
SETTLEMENT DATED JULY 16, 1958, FOR THE REASON THAT, SINCE YOU FAILED TO
PRESENT A CLAIM FOR APPROXIMATELY 40 YEARS, DURING WHICH PERIOD CERTAIN
OFFICIAL RECORDS HAVE BEEN DESTROYED PURSUANT TO LAW, IT CANNOT BE
ASCERTAINED THAT THE BONDS HAD NOT BEEN DELIVERED AND REDEEMED, AND IN
THE ABSENCE OF OFFICIAL RECORDS SHOWING THAT PAYMENT WAS NOT MADE, THERE
WAS NO AUTHORITY FOR PAYMENT OF YOUR CLAIM.
A REPORT FROM THE BUREAU OF THE PUBLIC DEBT, U.S. TREASURY
DEPARTMENT, CONCERNING CASES OF THIS KIND INDICATES THAT LIBERTY BONDS
PURCHASED THROUGH PAYROLL DEDUCTIONS WERE NOT REQUIRED TO BE ISSUED IN
REGISTERED FORM AND FOR THE MOST PART WERE DELIVERED CURRENTLY TO THE
PURCHASER. IT IS STATED IN THE REPORT, AS PERTINENT TO SUCH CASES, THAT
THE TREASURY DEPARTMENT DOES NOT KEEP A RECORD OF THE INDIVIDUAL
HOLDINGS OF COUPON BONDS AND NOTES, AS THESE SECURITIES ARE PAYABLE TO
BEARER AND TITLE TO THEM PASSES BY DELIVERY WITHOUT ENDORSEMENT AND
WITHOUT NOTICE TO THE TREASURY DEPARTMENT.
THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, HAS REPORTED WITH
RESPECT TO SUCH CASES THAT IN VIEW OF THE LENGTH OF TIME THAT HAS
ELAPSED, AND THE EXTENT OF THE NORMAL DETERIORATION OF DEPARTMENT OF THE
ARMY FILES OVER SUCH AN EXTENDED PERIOD, THE DEPARTMENT OF THE ARMY IS
NOT IN A POSITION TO DETERMINE CONCLUSIVELY THAT A LIBERTY LOAN BOND WAS
OR WAS NOT ISSUED TO A MEMBER WHO HAD DEDUCTIONS FROM HIS MILITARY PAY
DURING THE PERIOD 1917 THROUGH 1919.
THE ACCOUNTING OFFICERS OF THE GOVERNMENT, IN THE ABSENCE OF CLEAR
AND SATISFACTORY EVIDENCE OF THE VALIDITY AND NONPAYMENT OF A CLAIM,
HAVE CONSISTENTLY REFUSED TO ALLOW A CLAIM WHERE THE CLAIMANT HAS SLEPT
ON HIS RIGHTS FOR LONG PERIODS OF YEARS. SEE 4 COMP. DEC. 276; 5 COMP.
DEC. 282; AND 4 COMP. GEN. 805. INASMUCH AS YOU FAILED TO PRESENT
YOUR CLAIM FOR APPROXIMATELY 40 YEARS, DURING WHICH PERIOD THE RECORDS
NECESSARY EITHER TO JUSTIFY OR REFUTE YOUR CLAIM HAVE BEEN DESTROYED
PURSUANT TO LAW OR OTHERWISE HAVE BECOME UNAVAILABLE, THERE IS NO
ALTERNATIVE BUT TO SUSTAIN THE DISALLOWANCE OF YOUR CLAIM.
B-140400, AUG. 7, 1959
TO MR. ERNEST W. BRACKETT, DIRECTOR, PROCUREMENT AND SUPPLY, NATIONAL
AERONAUTICS AND SPACE ADMINISTRATION:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 4, 1959, WITH ENCLOSURES,
REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING ERRORS
ALLEGED BY THE STAR MACHINE AND TOOL COMPANY AND THE ALLOY-FREITAG
CORPORATION TO HAVE BEEN MADE IN THEIR BIDS OPENED ON JULY 7, 1959.
BY INVITATION NO. C-411-PB, THE LEWIS RESEARCH CENTER OF THE NATIONAL
AERONAUTICS AND SPACE ADMINISTRATION, CLEVELAND, OHIO, REQUESTED BIDS
FOR FURNISHING SERVICES AND MATERIALS NECESSARY FOR MACHINING TWO
FLUORINE PUMP SCROLLS IN ACCORDANCE WITH THE GOVERNMENT'S
SPECIFICATIONS. IN RESPONSE THE STAR MACHINE AND TOOL COMPANY SUBMITTED
A BID DATED JULY 6, 1959, OFFERING TO PERFORM THE WORK FOR A JOB PRICE
OF $2,440; AND THE ALLOY-FREITAG CORPORATION SUBMITTED A TELEGRAPHIC
BID DATED JULY 7, 1959, OFFERING TO PERFORM THE JOB FOR A PRICE OF
$3,990. THE ABSTRACT OF BIDS SHOWS THAT THE SIX OTHER BIDDERS ON THE
FLUORINE SCROLLS QUOTED JOB PRICES RANGING FROM $5,420 TO $11,500.
UPON BEING REQUESTED TO VERIFY THEIR BIDS, THE STAR MACHINE AND TOOL
COMPANY AND THE ALLOY-FREITAG CORPORATION ADVISED BY LETTERS DATED JULY
8, 1959, THAT ERRORS HAD BEEN MADE IN THEIR BIDS IN THAT THEY FAILED TO
INCLUDE IN THEIR BID PRICES THE COST OF CERTAIN ITEMS OF WORK. THE STAR
MACHINE AND TOOL COMPANY ALLEGED THAT IN COMPUTING ITS BID PRICE, IT
INCLUDED THE COST OF MACHINING ONLY ONE SCROLL RATHER THAN TWO SCROLLS,
AS REQUIRED AND REQUESTED THAT ITS BID PRICE FOR THE JOB BE CORRECTED TO
$4,393. THE ALLOY-FREITAG CORPORATION ALLEGED THAT THE TOOLING AND
MODEL COSTS HAD BEEN OMITTED FROM ITS BID PRICE AND REQUESTED THAT ITS
BID PRICE FOR THE JOB BE INCREASED TO $4,870 TO COVER THE COST OF THE
OMITTED ITEMS. IN SUPPORT OF THEIR ALLEGATIONS OF ERROR, THE TWO
BIDDERS SUBMITTED CERTAIN WORKSHEETS.
ON THE RECORD, THERE APPEARS NO ROOM FOR DOUBT THAT THE STAR MACHINE
AND TOOL COMPANY AND THE ALLOY-FREITAG CORPORATION MADE ERRORS IN THEIR
BIDS, AS ALLEGED. THE CIRCUMSTANCES IN THE PRESENT CASE, HOWEVER, ARE
NOT SUCH AS WOULD WARRANT A DEPARTURE FROM THE BASIC RULE THAT BIDS MAY
NOT BE CHANGED AFTER THE BIDS HAVE BEEN OPENED. SEE 17 COMP. GEN. 575.
ACCORDINGLY, SINCE IT WAS BELIEVED THAT THE BIDS OF THE STAR MACHINE
AND TOOL COMPANY AND THE ALLOY-FREITAG CORPORATION WERE ERRONEOUS, AND
SINCE SUCH BELIEF WAS CONFIRMED AND THE ERRORS WERE EXPLAINED BY THE
BIDDERS PRIOR TO AWARD, THE BIDS OF THE STAR MACHINE AND TOOL COMPANY
AND THE ALLOY-FREITAG CORPORATION MAY BE DISREGARDED IN MAKING THE
AWARD.
B-139423, AUG. 6, 1959
TO MR. BERNARD B. MILLER:
WE HAVE RECEIVED, BY REFERENCE FROM THE FINANCE CENTER, U.S. ARMY,
INDIANAPOLIS, INDIANA, YOUR LETTERS DATED NOVEMBER 17, 1958, AND
FEBRUARY 17, 1959, WHICH APPARENTLY RELATE TO THE AMOUNT OF $735.31,
WHICH THE DEPARTMENT OF THE ARMY PAID TO YOU BY CHECK DATED NOVEMBER 12,
1957, ON THE BASIS OF THE CORRECTION OF YOUR MILITARY RECORDS. YOU
INDICATE, GENERALLY, THAT YOU BELIEVE THE AMOUNT SO PAID, WHICH
REPRESENTED PAY AND ALLOWANCES FOUND DUE YOU AS OF SEPTEMBER 8, 1945,
THE DATE OF YOUR DISCHARGE AS PRIVATE, ARMY OF THE UNITED STATES, WAS
COMPUTED INCORRECTLY.
SECTION 15 2 OF TITLE 10 OF THE U.S. CODE CONTAINS THE STATUTORY
PROVISIONS RELATING TO CORRECTION OF MILITARY RECORDS AND TO CLAIMS
INCIDENT THERETO. IT IS THERE PROVIDED, AMONG OTHER THINGS, 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, AND THAT, EXCEPT WHEN PROCURED
BY FRAUD, A CORRECTION SO MADE IS FINAL AND CONCLUSIVE ON ALL OFFICERS
OF THE UNITED STATES. THAT SECTION FURTHER PROVIDES THAT THE DEPARTMENT
CONCERNED MAY PAY, FROM APPLICABLE CURRENT APPROPRIATIONS, A CLAIM FOR
THE LOSS OF PAY, ALLOWANCES, COMPENSATION, EMOLUMENTS, OR OTHER
PECUNIARY BENEFITS, OR FOR THE REPAYMENT OF A FINE OR FORFEITURE, IF, AS
A RESULT OF CORRECTING A RECORD UNDER THAT SECTION, THE AMOUNT IS FOUND
TO BE DUE THE CLAIMANT ON ACCOUNT OF HIS OR ANOTHER'S SERVICE IN THE
ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD, AS THE CASE MAY BE,
AND THAT A CLAIMANT'S ACCEPTANCE OF A SETTLEMENT UNDER THAT SECTION
FULLY SATISFIES THE CLAIM CONCERNED.
WE HAVE IN OUR FILE ON YOUR CASE A PHOTOCOPY OF CHECK NO. 1,198,420,
DATED NOVEMBER 12, 1957, IN THE AMOUNT OF $735.31, DRAWN ON THE
TREASURER OF THE UNITED STATES BY LIEUTENANT COLONEL N. P. HANNA TO THE
ORDER OF BERNARD B. MILLER, 196 ROCKAWAY PARKWAY, BROOKLYN, NEW YORK.
THAT CHECK, WHICH COVERED THE PAYMENT MADE BY THE DEPARTMENT OF THE
ARMY, ON NOVEMBER 12, 1957, ON THE BASIS OF THE CORRECTION OF YOUR
MILITARY RECORDS, BEARS THE ENDORSEMENT OF "BERNARD B. MILLER" AND HAS
BEEN PAID BY THE TREASURER OF THE UNITED STATES. SINCE IT APPEARS THAT
YOU ACCEPTED THE AMOUNT SO PAID, IT MUST BE CONCLUDED THAT, IN
ACCORDANCE WITH THE APPLICABLE STATUTORY PROVISIONS, YOUR ACCEPTANCE OF
THAT AMOUNT FULLY SATISFIED YOUR CLAIM FOR PAY AND ALLOWANCES DUE AS OF
SEPTEMBER 8,
1945, THE DATE OF YOUR DISCHARGE AS PRIVATE, ARMY OF THE UNITED
STATES.
B-139515, AUG. 6, 1959
TO THE SECRETARY OF THE AIR FORCE:
IN LETTER OF APRIL 22, 1959, FROM THE ASSISTANT SECRETARY OF THE AIR
FORCE (FINANCIAL MANAGEMENT), DECISION IS REQUESTED AS TO WHETHER THERE
WILL BE OBJECTION TO PAYMENT OF AN EMERGENCY COST-OF-LIVING ALLOWANCE TO
A MEMBER OF THE AIR FORCE ON ACCOUNT OF HIS WIFE'S RESIDENCE IN LEGHORN,
ITALY, AS AN EMERGENCY EVACUEE, IF BASED ON A RETROACTIVELY EFFECTIVE
SPECIAL DETERMINATION TO BE MADE UNDER PARAGRAPH 4306 OF THE JOINT
TRAVEL REGULATIONS. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 59-15.
THE FACTS INVOLVED, AS SET FORTH IN THE ASSISTANT SECRETARY'S LETTER,
ARE THAT DURING THE EARLY PART OF AUGUST 1958, THE DEPENDENTS OF
MILITARY PERSONNEL ON DUTY IN ONE OF THE EASTERN MEDITERRANEAN COUNTRIES
WERE ORDERED EVACUATED TO ROME AND NAPLES, ITALY. AFTER EVACUATION
ORDERS
WERE ISSUED AND CERTAIN DEPENDENTS HAD DEPARTED IT WAS LEARNED THAT
ONE OF THE DEPENDENTS REQUIRED MEDICAL ATTENTION OR HOSPITALIZATION. BY
A DISPATCH, COMPETENT AUTHORITY ORDERED THAT AFTER THE DEPENDENT ARRIVED
IN ROME SHE BE DIRECTED TO REPORT TO THE UNITED STATES ARMY HOSPITAL AT
LEGHORN. SHE WAS HOSPITALIZED UPON ARRIVAL AT LEGHORN ON OR ABOUT
AUGUST 10, 1958, AND UPON RELEASE FROM THE HOSPITAL ON AUGUST 19 SHE WAS
REQUIRED TO REMAIN IN THE LEGHORN AREA PENDING THE BIRTH OF A CHILD.
SHE WAS AGAIN HOSPITALIZED ON SEPTEMBER 30 WHEN HER SON WAS BORN, SHE
REMAINED IN THE HOSPITAL UNTIL OCTOBER 7, AND UPON DISCHARGE SHE
CONTINUED TO RESIDE IN THE AREA OF THE HOSPITAL. IT IS STATED THAT A
TIMELY DETERMINATION PRESCRIBING EMERGENCY COST-OF-LIVING ALLOWANCES FOR
THE DEPENDENTS AT ROME AND NAPLES WAS MADE SHORTLY AFTER THE ARRIVAL OF
THE DEPENDENTS THERE, BUT THAT DUE TO ADMINISTRATIVE ERROR IN FAILING TO
COMPLY WITH THE REQUIREMENT OF SUBPARAGRAPH 4306-5 OF THE JOINT TRAVEL
REGULATIONS, A REPORT ON THE DETAILED SUBSISTENCE COSTS INCURRED BY THE
DEPENDENT AT LEGHORN WAS NOT FURNISHED THE PER DIEM, TRAVEL AND
TRANSPORTATION ALLOWANCE COMMITTEE, AND CONSEQUENTLY, NO ACTION WAS
TAKEN TO AUTHORIZE EMERGENCY ALLOWANCES FOR HER.
PARAGRAPH 4306 OF THE JOINT TRAVEL REGULATIONS, AS APPEARING IN
CHANGE 61 TO THE REGULATIONS DATED AUGUST 1, 1957, IN EFFECT WHEN THE
DEPENDENT IN QUESTION WAS EVACUATED TO LEGHORN, PROVIDES FOR THE PAYMENT
TO A MEMBER WHOSE DEPENDENTS ARE ORDERED TO BE EVACUATED FROM THE
VICINITY OF HIS DUTY STATION TO ANOTHER OVERSEAS AREA OF AN EMERGENCY
COST-OF-LIVING ALLOWANCE TO BE PRESCRIBED BY SPECIAL DETERMINATION OF
THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, AT THE
REQUEST OF THE COMMANDER ORDERING THE EVACUATION, OR OTHER COMPETENT
AUTHORITY, ON THE BASIS OF A REPORT OF ACTUAL DETAILED COSTS OF QUARTERS
AND SUBSISTENCE BEING EXPERIENCED BY DEPENDENTS IN THE AREA TO WHICH
EVACUATED, AS ASCERTAINED AND FURNISHED TO THE COMMITTEE BY THE SENIOR
COMMANDER OF THAT AREA, OR ANY OTHER COMPETENT AUTHORITY, AS SOON AS
POSSIBLE AFTER THE ARRIVAL THERE OF THE DEPENDENTS. IN CHANGE 73, WHICH
IS DATED OCTOBER 1, 1958, AND HENCE NOT FOR APPLICATION HERE, FURTHER
PROVISION IS MADE FOR THE PAYMENT OF AN EMERGENCY ALLOWANCE FOR A PERIOD
NOT TO EXCEED 30 DAYS BASED ON THE DAILY TRAVEL PER DIEM RATE PRESCRIBED
FOR THE AREA IN TABLE 3, APPENDIX B, PENDING THE PRESCRIBING OF AN
EMERGENCY COST-OF-LIVING ALLOWANCE BY THE SECRETARY CONCERNED AND THE
CHAIRMAN OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.
ALSO, IT IS PROVIDED THAT EMERGENCY COST-OF-LIVING ALLOWANCES ARE
PAYABLE FROM THE DAY OF ARRIVAL OF THE DEPENDENTS IN THE DESIGNATED SAFE
HAVEN AREA.
A RETROACTIVE APPLICATION OF REGULATIONS OR OTHER ADMINISTRATIVE
ACTION TO EFFECT A DIVESTMENT OR INCREASE OF RIGHTS OF A MEMBER THAT
HAVE ACCRUED AND BECOME FIXED, IS NOT PROPER. 23 COMP. GEN. 713.
ALTHOUGH AN APPLICATION OF THAT PRINCIPLE WITH RESPECT TO THE RATES AT
WHICH COST-OF-LIVING ALLOWANCES INCIDENT TO EMERGENCY EVACUATIONS ARE TO
BE PAID WOULD NOT APPEAR TO BE APPROPRIATE, IT WOULD APPEAR THAT BOTH
THE LAW AND THE PROVISIONS OF PARAGRAPH 4306 OF THE JOINT TRAVEL
REGULATIONS REQUIRE A CONTEMPORANEOUS DETERMINATION OF SUCH RATES.
ASSUMING, HOWEVER, THAT THE NECESSARY DATA WITH RESPECT TO THE COST OF
LIVING AT LEGHORN, ITALY, DURING HIS DEPENDENT'S EVACUATION TO THAT
PLACE REMAINS AVAILABLE, WE WILL NOT OBJECT TO THE PAYMENT OF A
COST-OF-LIVING ALLOWANCE TO THE MEMBER INVOLVED IN THE PRESENT
SUBMISSION ON THE BASIS OF A SPECIAL DETERMINATION AS PROPOSED. YOUR
QUESTIONS ARE ANSWERED ACCORDINGLY.
B-139901, AUG. 6, 1959
TO UNION PACIFIC RAILROAD COMPANY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 9, 1959, FILE GTW
154374, CONCERNING YOUR SUPPLEMENTAL BILL TW-154374-A, OUR CLAIM NO.
TK-304024. WE HAVE COMPLETED OUR REVIEW OF THE ACCOUNT IN QUESTION AND
HAVE AUTHORIZED THE ISSUANCE OF A REVISED SETTLEMENT WHICH SHOULD REACH
YOU IN DUE COURSE.
B-139909, AUG. 6, 1959
TO FIRST LIEUTENANT D. L. TISDEL, USAF, ACCOUNTING AND FINANCE
OFFICER:
BY LETTER DATED JUNE 11, 1959, THE DEPUTY DIRECTOR OF ACCOUNTING AND
FINANCE, COMPTROLLER, U.S. AIR FORCE, FORWARDED YOUR LETTER DATED
FEBRUARY 24, 1959, PRESENTING FOR ADVANCE DECISION A MILITARY PAY ORDER
DATED FEBRUARY 19, 1959, AUTHORIZING THE ADJUSTMENT OF THE PAY OF AIRMAN
WILLIAM E. BUCHANAN, AF 1436 1103, FOR THE PERIOD BEGINNING OCTOBER 8,
1958, TO GIVE HIM CREDIT FOR SAVED PAY UNDER RATES IN EFFECT ON MAY 31,
1958. YOUR REQUEST FOR DECISION WAS ASSIGNED AIR FORCE REQUEST NO. 423
BY THE DEPARTMENT OF DEFENSE, MILITARY AND PAY ALLOWANCE COMMITTEE.
IT APPEARS THAT AS OF MAY 31, 1958, THE DAY BEFORE THE EFFECTIVE DATE
OF THE ACT OF MAY 20, 1958, 72 STAT. 122, AIRMAN BUCHANAN WAS ENTITLED
TO THE BASIC PAY OF AN AIRMAN SECOND CLASS WITH OVER 8 YEARS OF SERVICE
AT THE RATE OF $148.20 A MONTH AND THAT UNDER THE SAVINGS PROVISION OF
THAT ACT HE RECEIVED PAY AT THAT RATE FROM JULY 1 THROUGH OCTOBER 7,
1958. IT ALSO APPEARS THAT BECAUSE OF REDUCTIONS IN RATINGS HE, AS AN
ENLISTED MAN WITH OVER 8 YEARS OF SERVICE, WAS PAID BASIC PAY AS AN
AIRMAN THIRD CLASS FROM OCTOBER 8 THROUGH NOVEMBER 16, 1958, AT $108 A
MONTH, AND AS AN AIRMAN BASIC THEREAFTER AT THE RATE OF $105 A MONTH.
THOSE ARE THE RATES WHICH WERE AUTHORIZED EFFECTIVE JUNE 1, 1958, UNDER
THE PROVISIONS OF THE ACT OF MAY 20, 1958.
THE MILITARY PAY ORDER HERE INVOLVED PROPOSES TO ADJUST AIRMAN
BUCHANAN'S PAY ON THE BASIS THAT, NOTWITHSTANDING THE REDUCTIONS IN
RATINGS, HIS PAY, UNDER THE SAVINGS PROVISIONS OF THE ACT OF MAY 20,
1958, SHOULD HAVE BEEN COMPUTED AT THE RATES IN EFFECT ON MAY 31, 1958,
FOR THE REDUCED RATINGS. THE MILITARY PAY ORDER CITES OUR DECISION
DATED SEPTEMBER 26, 1950, 30 COMP. GEN. 119, AS AUTHORITY FOR THE
ADJUSTMENT. YOU INDICATE IN YOUR LETTER DATED FEBRUARY 24, 1959,
HOWEVER, THAT, SINCE THAT DECISION RELATES TO THE SAVED PAY PROVISIONS
OF THE CAREER COMPENSATION ACT OF 1949, DOUBT EXISTS AS TO WHETHER IT IS
PROPERLY FOR APPLICATION IN THE PRESENT CASE.
THE DECISION OF SEPTEMBER 26, 1950, RECOGNIZED THAT THE SAVINGS
PROVISIONS IN SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949
SAVED A MEMBER OTHERWISE ENTITLED TO ITS BENEFITS FROM ANY REDUCTION "BY
REASON OF THIS ACT" IN THE TOTAL COMPENSATION, AS DEFINED THEREIN, WHICH
HE WAS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON
SEPTEMBER 30, 1949; THAT THE THIRD PROVISO IN THAT SECTION CONTEMPLATED
THAT A MEMBER RECEIVING SAVED TOTAL COMPENSATION MIGHT THEREAFTER FAIL
TO QUALIFY FOR A PART OF SUCH TOTAL COMPENSATION BUT SUCH FAILURE TO
QUALIFY FOR A PART OF THE SAVED TOTAL COMPENSATION WOULD NOT NECESSARILY
TERMINATE HIS RIGHT TO SAVED TOTAL COMPENSATION; AND THAT THE PRIMARY
PURPOSE OF SECTION 515 (B) WAS TO PERMIT MEMBERS OTHERWISE ENTITLED TO
ITS BENEFITS TO CONTINUE TO RECEIVE THE BENEFITS OF THE SERVICEMEN'S
DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, IN ADDITION TO THE PAY AND
ALLOWANCES UNDER THE PRIOR LAW. ON SUCH BASIS, WE CONCLUDED THAT A
MEMBER OF THE UNIFORMED SERVICES OTHERWISE ENTITLED TO THE BENEFITS OF
SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949 WHO WAS REDUCED
IN GRADE OR RATING BY ADMINISTRATIVE ACTION OR SENTENCE OF COURT-MARTIAL
IN EFFECT MERELY FAILED TO QUALIFY FOR THAT PART OF HIS SAVED TOTAL
COMPENSATION REPRESENTING THE DIFFERENCE IN PAY, ETC., BETWEEN THE TWO
GRADES AND, HENCE, MIGHT CONTINUE TO RECEIVE SAVED TOTAL COMPENSATION
COMPUTED ON THE BASIS OF THE PAY AND ALLOWANCES APPLICABLE TO THE
REDUCED GRADE OR RATING UNDER THE LAWS IN EFFECT ON SEPTEMBER 30, 1949,
IN ADDITION TO THE BENEFITS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT
OF 1942, AS AMENDED.
SECTION 10 OF THE ACT OF MAY 20, 1958, 72 STAT. 130, EFFECTIVE JUNE
1958, IS, IN PERTINENT PART, AS FOLLOWS:
"SEC. 10. THE ENACTMENT OF THIS ACT SHALL NOT OPERATE TO REDUCE---
"/1) THE BASIC PAY OR RETIRED PAY TO WHICH A MEMBER OR FORMER MEMBER
OF A UNIFORMED SERVICE WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE
OF THIS ACT * * *.'
THAT PROVISION HAS, BY ITS EXPRESS TERMS, A MUCH MORE LIMITED
APPLICATION THAN THE PROVISIONS CONSIDERED IN THE DECISION OF SEPTEMBER
26, 1950. IT REFERS, INSOFAR AS HERE PERTINENT, ONLY TO A REDUCTION,
BECAUSE OF ENACTMENT OF THE ACT OF MAY 20, 1958, IN THE BASIC PAY TO
WHICH ENTITLED ON MAY 31, 1958. IT IS APPARENT THAT A REDUCTION IN
BASIC PAY BY REASON OF A REDUCTION IN GRADE OR RATING AS A RESULT OF
ADMINISTRATIVE ACTION OR SENTENCE OF A COURT-MARTIAL IS NOT A REDUCTION
IN BASIC PAY BY REASON OF THE "ENACTMENT OF THIS ACT.' CONSEQUENTLY, THE
SAID SAVINGS PROVISION DOES NOT OPERATE TO ENTITLE SUCH A MEMBER TO
CONTINUE TO RECEIVE THE SAVED BASIC PAY TO WHICH HE WAS ENTITLED PRIOR
TO THE EFFECTIVE DATE OF THE REDUCTION IN GRADE OR RATING OR TO HAVE HIS
BASIC PAY IN SUCH REDUCED GRADE OR RATING COMPUTED AT THE RATE IN EFFECT
ON MAY 31, 1958.
SECTION 3 (D) OF H.R. 9979 (THE PREDECESSOR BILL CONSIDERED BY THE
HOUSE COMMITTEE ON ARMED SERVICES PRIOR TO THE INTRODUCTION OF H.R.
11470, WHICH BECAME THE 1958 ACT) EXPRESSLY PROVIDED THAT, IF A MEMBER
WAS REDUCED IN GRADE FOR INEFFICIENCY OR DISCIPLINARY REASONS, THE SAVED
PAY RATE WOULD CEASE TO APPLY AND, IF REDUCED IN GRADE FOR OTHER THAN
INEFFICIENCY OR DISCIPLINARY REASONS, THE MEMBER WOULD BE ENTITLED TO
HAVE HIS ACTIVE DUTY PAY COMPUTED ON THE OLD RATES INCREASED BY 6
PERCENT OR ON THE NEW RATES, WHICHEVER WOULD BE HIGHER. WE VIEW THE
APPARENTLY DELIBERATE OMISSION OF THAT SPECIAL PROVISION FROM THE BILL
ENACTED INTO LAW AS INDICATING THE ABSENCE OF A LEGISLATIVE INTENT THAT
A MEMBER SHOULD HAVE HIS ACTIVE DUTY PAY COMPUTED ON THE OLD RATES
(INCLUDING THE LONGEVITY PAY FACTOR) WHEN REDUCED IN GRADE, WHATEVER THE
REASON. IT MAY BE NOTED THAT THE 1958 ACT AFFECTS ACTIVE DUTY PAY
DIFFERENTLY THAN RETIRED PAY, WHICH IS GOVERNED BY THE SPECIAL
PROVISIONS OF SECTIONS 3 AND 4 OF THE 1958 ACT. SEE B-138825, JUNE 19,
1959, 38 COMP. GEN. - .
ACCORDINGLY, THE PROPOSED ADJUSTMENT IS NOT AUTHORIZED AND THE
MILITARY PAY ORDER WHICH WAS SUBMITTED BY YOU WILL BE RETAINED HERE.
B-134259, AUG 5, 1959
TO CENTRAL OF GEORGIA RAILWAY COMPANY:
REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 2, 1958, APRIL 22 AND
APRIL 23, 1959, ADDRESSED TO OUR TRANSPORTATION DIVISION, CONCERNING
YOUR FILES NUMBERED N-28774-G-A, N-19324-G-A AND N-23101-G-A,
RESPECTIVELY.
YOUR LETTER OF DECEMBER 2, 1958, IS A REQUEST FOR FURTHER
CONSIDERATION OF OUR DECISIONS OF MARCH 27, MAY 14 AND NOVEMBER 4, 1958,
IN WHICH WE SUSTAINED THE DISALLOWANCE OF YOUR SUPPLEMENTAL CLAIMS
28774-A AND 28774-B. THESE CLAIMS ARE FOR ADDITIONAL FREIGHT CHARGES
FOR THE TRANSPORTATION OF "UTILITY LIGHT HARDWOODS" WHICH MOVED FROM
MONTGOMERY, ALABAMA, TO SAVANNAH, GEORGIA, FOR EXPORT TO GREAT BRITAIN
UNDER LEND-LEASE REQUISITION NO. UK-19000.
YOUR REQUEST FOR FURTHER CONSIDERATION IS BASED UPON THE CONTENTION
THAT THE MATERIAL DEVOTED TO "SHIPYARD PLANT AND CONSTRUCTION" WAS FOR
CIVIL USE AND THAT NO PROOF OR OTHER SATISFACTORY EVIDENCE HAS BEEN
FURNISHED TO THE CONTRARY.
IN DETERMINING THE APPLICABILITY OF LAND-GRANT RATES, THE PROPERTY
MOVES FOR "MILITARY OR NAVAL AND NOT FOR CIVIL USE" IF THAT WAS THE
INTENDED USE AT THE TIME THE SHIPMENT WAS MADE AND THE ACTUAL USE IS
IMMATERIAL. SEE UNITED STATES V. SPOKANE, PORTLAND AND SEATTLE RY.CO.,
261 F.2D 681. THE TEST FOR THE INTENDED USE OF THE PROPERTY FOR
"MILITARY OR NAVAL AND NOT FOR CIVIL USE" IS EXPRESSED IN NORTHERN
PACIFIC R.CO. V. U.S., 330 U.S. 248, 254, AS FOLLOWS:
"* * * MILITARY OR NAVAL USE INCLUDES ALL PROPERTY CONSUMED BY THE
ARMED FORCES OR BY THEIR ADJUNCTS, ALL PROPERTY WHICH THEY USE TO
FURTHER THEIR PROJECTS, ALL PROPERTY WHICH SERVES THEIR MANY NEEDS OR
WANTS IN TRAINING OR PREPARATION FOR WAR, IN COMBAT, IN MAINTAINING THEM
AT HOME OR ABROAD, IN THEIR OCCUPATION AFTER VICTORY IS WON. IT IS THE
RELATION OF THE SHIPMENT TO THE MILITARY OR NAVAL EFFORT THAT IS
CONTROLLING UNDER SEC. 321 (A).'
IT IS OUR VIEW THAT THE "UTILITY LIGHT HARDWOODS" REQUISITIONED FOR
USE IN NOVEMBER 1943, IN GREAT BRITAIN AND SHIPPED DURING THE EARLY
MONTHS OF 1944 AT WHICH TIMES THE WAR THERE WAS IN ITS MOST CRITICAL
PHASE FOR "SHIPYARD PLANT AND CONSTRUCTION" WERE INTENDED TO BE USED FOR
THE MILITARY OR NAVAL AND NOT FOR THE CIVIL USE AND WERE, THEREFORE,
ENTITLED TO BE SHIPPED AT LAND-GRANT RATES. ALSO, AS STATED IN OUR
LETTER OF MARCH 27, 1958, SETTLEMENT AS TO SHIPMENTS UNDER THIS
PARTICULAR REQUISITION WAS MADE ON SUCH BASIS IN ATLANTIC COAST LINE
RAILROAD COMPANY V. UNITED STATES, COURT OF CLAIMS NO. 48900. WHILE THE
SETTLEMENT IN THAT CASE WAS BASED UPON STIPULATION AGREED UPON BY THE
PARTIES AND IS NOT BINDING AS TO YOUR CLAIM, THE FACT THAT SUCH
AGREEMENT WAS REACHED AND APPROVED BY THE COURT INDICATES THAT
SETTLEMENT ON SUCH BASIS IS FAIR AND EQUITABLE. IN ANY EVENT, WE FIND
NO PROPER BASIS FOR MODIFYING OUR PRIOR DECISIONS AS TO YOUR
SUPPLEMENTAL CLAIMS 28744-A AND 28774-B, AND OUR DECISIONS OF MARCH 27,
MAY 14, AND NOVEMBER 4, 1958, ARE REAFFIRMED. FURTHER CORRESPONDENCE
RELATIVE TO THESE CLAIMS NOT PRESENTING ANY FACTS OR EVIDENCE NOT
PREVIOUSLY CONSIDERED WOULD APPEAR TO SERVE NO USEFUL PURPOSE.
YOUR LETTERS OF APRIL 22 AND APRIL 23, 1959, FILE NOS. 19324-G-A AND
N-23101-G-A (REQUISITION NUMBERS UK-13805 AND UK-17014) PERTAIN TO
CLAIMS ARISING FROM COMMODITY CREDIT CORPORATION SHIPMENTS. LAND-GRANT
DEDUCTIONS ON LEND-LEASE SHIPMENTS MADE BY THE COMMODITY CREDIT
CORPORATION WERE DISCUSSED IN NEGOTIATIONS BETWEEN REPRESENTATIVES OF
OUR OFFICE, DEPARTMENT OF JUSTICE AND A SPECIAL JOINT ACCOUNTING LAW
COMMITTEE APPOINTED BY THE ACCOUNTING DIVISION AND THE LAW COMMITTEE OF
THE ASSOCIATION OF AMERICAN RAILROADS. THE PURPOSE OF THESE
NEGOTIATIONS WAS TO EXPLORE THE POSSIBILITY OF REACHING AGREEMENT ON THE
SETTLEMENT OF ALL OUTSTANDING LAND-GRANT CLAIMS ON LEND-LEASE SHIPMENTS
OF THE COMMODITY CREDIT CORPORATION. A TENTATIVE PROPOSAL OF THE
ASSOCIATION OF AMERICAN RAILROADS FOR SETTLEMENT OF LAND-GRANT
DEDUCTIONS ON COMMODITY CREDIT CORPORATION LEND-LEASE SHIPMENTS, EXCEPT
THE SO-CALLED RUSSIAN REQUISITIONS, IS PRESENTLY BEING CONSIDERED BY THE
GOVERNMENT. IF SUCH SETTLEMENT IS ACCEPTED BY THE PARTIES CONCERNED AND
YOU FEEL, BASED THEREON, THAT ADDITIONAL AMOUNTS ARE DUE YOU WE WILL BE
PLEASED, AT YOUR REQUEST, TO THEN CONSIDER YOUR SUPPLEMENTAL CLAIMS ON
THESE SHIPMENTS.
B-136146, AUG. 5, 1959
TO MRS. MARY E. RING:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 27, 1959, REQUESTING
RECONSIDERATION OF YOUR CLAIM FOR $720 INCIDENT TO THE OCCUPANCY OF YOUR
HOUSE BY THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, UNDER LEASE NO.
DA-49-080-ENG-3333, DATED DECEMBER 1, 1956, AS AMENDED.
THE LEASE PROVIDED FOR A TERM BEGINNING DECEMBER 1, 1956, AND ENDING
JUNE 30, 1957, PROVIDED THAT, UNLESS AND UNTIL THE GOVERNMENT SHOULD
GIVE NOTICE OF TERMINATION IN ACCORDANCE WITH PARAGRAPH 12, THE LEASE
WOULD REMAIN IN EFFECT UNTIL JUNE 30, 1967. PARAGRAPH 12, HOWEVER,
GRANTED THE GOVERNMENT THE RIGHT TO TERMINATE THE LEASE AT ANY TIME BY
GIVING 30 DAYS WRITTEN NOTICE TO THE LESSOR PRIOR TO THE END OF ANY
GOVERNMENT FISCAL YEAR. ON MAY 11, 1957, YOU ACKNOWLEDGED RECEIPT OF
THE GOVERNMENT'S CANCELLATION NOTICE EFFECTIVE AS OF JUNE 30, 1957, AND
YOU IN TURN ISSUED TIMELY WRITTEN NOTICE TO THE GOVERNMENT THAT
RESTORATION WOULD BE REQUIRED. IT IS ADMINISTRATIVELY REPORTED THAT THE
PREMISES WERE VACATED BY THE GOVERNMENT PRIOR TO JUNE 30, 1957, THAT ON
THIS DATE YOU MET WITH THE GOVERNMENT'S REPRESENTATIVE AT THE HOUSE BUT
REFUSED TO DISCUSS RESTORATION OF THE LEASED PREMISES UNTIL YOU HAD
CONSULTED WITH YOUR ATTORNEY; THAT WHILE ON JULY 8, 1957, YOU WERE
REQUESTED TO SUBMIT A LIST OF REPAIRS YOU CONSIDERED NECESSARY FOR
RESTORATION OF THE PREMISES, NO FURTHER COMMUNICATION WAS RECEIVED FROM
YOU UNTIL AUGUST 13, 1957.
BY SUPPLEMENTAL AGREEMENT NO. 1, EXECUTED BY YOU ON SEPTEMBER 23,
1957, YOU AGREED TO ACCEPT $269 IN LIEU OF PHYSICAL RESTORATION OF THE
HOUSE AND TO ACCEPT SURRENDER OF THE PREMISES AS OF JUNE 30, 1957, IN
ITS CONDITION AT THAT TIME, AND TO ASSUME THE CUSTODY, CARE, AND CONTROL
THEREOF, THE GOVERNMENT THEREAFTER TO BE RELIEVED OF ANY AND ALL
RESPONSIBILITY THEREFOR. IN THIS SAME INSTRUMENT YOU RELEASED AND
FOREVER DISCHARGED THE UNITED STATES FROM ANY AND ALL MANNER OF ACTIONS,
LIABILITY AND CLAIMS FOR DAMAGES, AND RESTORATION OF THE LEASED PREMISES
EXCEPT THE FOLLOWING:
TABLE
A. OCTOBER 1956 RENTAL. $140.00
B. NOVEMBER 1956 RENTAL. 140.00
C. JULY 1957 RENTAL FOR SHOWING THE
PROPERTY AND TAKING CARE OF
DAMAGES. 140.00
D. TIME AND MENTAL AND PHYSICAL
STRAIN TO WHICH OWNER WAS
SUBJECTED, TOGETHER WITH TELEPHONE,
ETC. 300.00
--------
TOTAL $720.00
BY SETTLEMENT OF JANUARY 16, 1958, YOU WERE ALLOWED $70, REPRESENTING
ONE-HALF MONTH'S RENTAL FOR JULY 1957, AS ADMINISTRATIVELY RECOMMENDED.
THE BALANCE OF YOUR CLAIM WAS DISALLOWED AND THE SETTLEMENT ACTION WAS
SUSTAINED IN OUR DECISION OF MAY 28, 1958, TO YOU.
SINCE THE GOVERNMENT DID NOT OCCUPY YOUR HOUSE PRIOR TO DECEMBER 1,
1956, THE EFFECTIVE DATE OF THE LEASE, AND SINCE THE LEASE CONTAINS NO
PROVISION FOR ANY PAYMENT FOR ANY PERIOD PRIOR THERETO, THERE IS NO
LEGAL BASIS FOR PAYMENT OF THE RENT CLAIMED UNDER ITEMS (A) AND (B) OF
YOUR CLAIM. THE INSPECTION OF THE HOUSE IN THE MONTH OF OCTOBER 1956
WAS MERELY PRELIMINARY TO THE LEASE AGREEMENT AND YOU WERE PUT ON NOTICE
THAT THE INSPECTING OFFICERS HAD NOTHING TO DO WITH THE ACTUAL LEASING
OF YOUR HOME. FURTHER, YOU WERE INFORMED THAT IF ANOTHER LESSEE DESIRED
TO RENT THE HOUSE YOU WERE UNDER NO OBLIGATION TO HOLD SAME FOR THE
GOVERNMENT. IN ANY EVENT, THE WRITTEN LEASE ALONE FIXED THE OBLIGATIONS
AND RIGHTS OF THE PARTIES AND ANY STATEMENT THAT MAY HAVE BEEN MADE, OR
ANY UNDERSTANDING YOU MAY HAVE HAD AT THAT TIME, CANNOT OPERATE TO VARY
THE PLAIN INTENTION OF THE PARTIES AS EXPRESSED IN THE LEASE. HENCE,
SINCE THE PAYMENT OF ANY ADDITIONAL RENTAL NOT PROVIDED FOR IN THE LEASE
WOULD OPERATE AS A MODIFICATION OF THE LEASE PREJUDICIAL TO THE
INTERESTS OF THE GOVERNMENT, THERE IS NO LEGAL BASIS FOR PAYMENT OF ANY
ADDITIONAL RENTAL FOR THE MONTHS OF OCTOBER AND NOVEMBER 1956.
AS TO ITEM (C), YOU CONTEND, IN EFFECT, THAT YOU ARE ENTITLED TO A
FULL MONTH'S RENT FOR THE MONTH OF JULY 1957, SINCE YOU COULD NOT TAKE
CARE OF THE REPAIRS IN LESS TIME THAN 30 DAYS. IN ACCEPTING THE NOTICE
OF CANCELLATION OF THE LEASE EFFECTIVE AS OF JUNE 30, 1957, AND
SURRENDER OF THE BUILDING WITHOUT ANY RESERVATION FOR RENT UNTIL THE
PREMISES WERE RESTORED OR SATISFACTORY ARRANGEMENTS WERE MADE THEREFOR,
YOU WAIVED WHATEVER RIGHT YOU MAY HAVE HAD FOR RENT AFTER JUNE 30, 1957.
THE FACT THAT IN THE SUPPLEMENTAL AGREEMENT EXECUTED ON SEPTEMBER 23,
1957, YOU RESERVED THE RIGHT TO FILE A CLAIM FOR RENT FOR THE ENTIRE
MONTH OF JULY 1957, WHILE AT THE SAME TIME AGREEING TO ACCEPT $269 IN
LIEU OF RESTORATION, DID NOT OPERATE TO VALIDATE YOUR CLAIM FOR THE
WHOLE MONTH. IN THE LIGHT OF THE FOREGOING, AND CONSIDERING YOUR
REFUSAL TO DISCUSS RESTORATION ON JUNE 30, 1957, AND YOUR FAILURE TO
TIMELY RESPOND TO THE GOVERNMENT'S LETTER OF JULY 8, 1957, REQUESTING A
LIST OF THE DESIRED REPAIRS, THERE IS NO PROPER BASIS FOR ALLOWANCE OF
ANY ADDITIONAL RENTAL. NEITHER IS THERE ANY PROPER BASIS FOR ANY
ALLOWANCE FOR TAKING CARE OF THE DAMAGES AND SHOWING THE PROPERTY. ANY
EXPENSES THAT MAY HAVE BEEN INCURRED BY YOU IN SHOWING THE PREMISES ARE
ONLY SUCH AS THOSE WHICH ULTIMATELY WOULD HAVE BEEN INCURRED BY YOU IN
ANY EVENT, EVEN IF THE GOVERNMENT'S TENURE HAD EXTENDED THROUGH JUNE 30,
1967. THIS TYPE OF EXPENSE TOGETHER WITH THE EXPENSES FOR TAKING CARE
OF THE DAMAGES, AND THE EXPENSES CLAIMED UNDER ITEM (D) OF YOUR CLAIM
FOR TIME, MENTAL AND PHYSICAL STRAIN, TELEPHONE, ETC., GENERALLY ARE
REGARDED AS CONSEQUENTIAL IN NATURE FOR WHICH NO RECOVERY IS AUTHORIZED.
FOR THE FOREGOING REASONS IT MUST BE CONCLUDED THAT THERE IS NO LEGAL
BASIS FOR ANY CHANGE OR MODIFICATION OF THE ACTION HERETOFORE TAKEN ON
YOUR CLAIM.
B-139394, AUG. 5, 1959
TO GENERAL ELECTRIC COMPANY:
FURTHER REFERENCE IS MADE TO YOUR PROTEST RELATIVE TO THE REJECTION
OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. M6-48-59,
ISSUED BY THE VETERANS ADMINISTRATION SUPPLY DEPOT, SUMMERVILLE, NEW
JERSEY, FOR X-RAY EQUIPMENT, IN ACCORDANCE WITH FEDERAL SPECIFICATION
GG-X-635A, OCTOBER 4, 1956.
AS YOU ARE AWARE, THE VETERANS ADMINISTRATION REPORTED THAT THE
EQUIPMENT OFFERED BY YOU WAS REJECTED FOR NOT COMPLYING WITH THE
SPECIFICATIONS FOR THE FOLLOWING REASONS:
TABLE ITEM 1. PARAGRAPH 1.2.1.5 OF FEDERAL SPECIFICATI
GG-X-635A, DATED OCTOBER 4, 1956, DESCRIBES A
TYPE III BODY SECTIONAL DEVICE PROVIDING FOR
RADIOGRAPHY FROM THE HORIZONTAL PLANE THROUGH THE
VERTICAL PLANE. GENERAL ELECTRIC OFFERED A DEVICE
PROVIDING FOR HORIZONTAL AND VERTICAL RADIOGRAPHY
ONLY. ITEMS 4, 5, AND 6. PARAGRAPH 1.2.1.3 DESCRIBES A TYPE II TU
SUPPORTED FROM OVERHEAD ONLY. GENERAL ELECTRIC
OFFERED A TYPE III TUBESTAND SUPPORTED FROM THE
FLOOR AND OVERHEAD. ITEMS 7, 8, AND 9. PARAGRAPH 3.4.3.4 REQUIRES
VERTICAL ADJUSTMENT
FOR THE POSITIONING OF THE X-RAY TUBE TO BE
ACTUATED BY AN ELECTRIC MOTOR. THEY OFFERED A UNIT
REQUIRING MANUAL ADJUSTMENT OF THE TUBE.
IN YOUR LETTER OF JUNE 19, 1959, EXCEPTION IS TAKEN TO THE STATEMENT
THAT THE TUBESTAND OFFERED UNDER ITEMS 4, 5, AND 6 WERE SUPPORTED FROM
THE FLOOR AND OVERHEAD RATHER THAN FROM OVERHEAD ONLY, AS REQUIRED BY
THE SPECIFICATION. IT IS STATED THAT THE PRIMARY REASON GIVEN YOU FOR
THE REJECTION OF YOUR BID WAS THE FAILURE TO PROVIDE AN ELECTRIC MOTOR
TO POSITION THE TUBEHEAD IN THE VERTICAL POSITION AS REQUIRED BY THE
SPECIFICATION. IT IS CONTENDED THAT THIS REQUIREMENT OF THE FEDERAL
SPECIFICATION IS RESTRICTIVE. OBJECTION IS ALSO TAKEN TO OTHER
PROVISIONS OF THE SPECIFICATION AND IT IS STATED THAT THE EQUIPMENT OF
NO SINGLE MANUFACTURER COMPLIES WITH THE VARIOUS REQUIREMENTS OF THE
SPECIFICATIONS, IF STRICTLY INTERPRETED.
SINCE IT IS CONCEDED THAT THE EQUIPMENT OFFERED BY YOU DID NOT COMPLY
WITH THE ADVERTISED SPECIFICATIONS, WE WOULD NOT BE WARRANTED IN
QUESTIONING THE REJECTION OF YOUR BID UNDER THE INVITATION HERE
INVOLVED. HOWEVER, WE ARE FORWARDING A COPY OF YOUR LETTER OF JUNE 19,
1959, TO THE ADMINISTRATOR OF VETERANS AFFAIRS AND ALSO TO THE
ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, FOR CONSIDERATION OF
POSSIBLE MODIFICATION OR CLARIFICATION OF FEDERAL SPECIFICATION
GG-X-635A.
B-139771, AUG. 5, 1959
TO UNION PACIFIC RAILROAD COMPANY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 26, 1959, GG-60828,
REQUESTING REVIEW OF OUR SETTLEMENT DATED DECEMBER 29, 1958, WHICH
DISALLOWED YOUR CLAIM FOR $760.34 ASSERTED IN CONNECTION WITH A
SHIPMENT, IN 1943, OF 117,882 POUNDS OF CANNED MEATS FROM HOUSTON,
TEXAS, TO OLYMPIA, WASHINGTON, UNDER GOVERNMENT BILLS OF LADING NOS.
A-3213768 AND A-513526.
OUR RECORDS SHOW THAT THE INBOUND SHIPMENT ORIGINATED AT HOUSTON
UNDER BILL OF LADING NO. A-3213768 AND WAS DELIVERED FOR STORAGE IN
TRANSIT AT DENVER, COLORADO, BY THE DENVER AND RIO GRANDE WESTERN
RAILROAD COMPANY. THE OUTBOUND MOVEMENT FROM THE TRANSIT STATION
(DENVER) WAS ACCOMPLISHED UNDER BILL OF LADING NO. A-513526, RECEIPTED
FOR BY THE UNION PACIFIC RAILROAD COMPANY, WHICH CARRIER MADE DELIVERY
OF THE GOODS TO OLYMPIA, WASHINGTON, FOR EXPORT.
BOTH THE INBOUND AND THE OUTBOUND SHIPMENTS WERE BILLED BY THE
CARRIERS AND PAID ON THE BASIS OF LOCAL MOVEMENTS, BUT IN OUR SUBSEQUENT
AUDIT OF THE PAYMENT VOUCHERS WE ISSUED A NOTICE OF OVERPAYMENT (FORM
1003) STATING AN AMOUNT OF $760.34 AS OVERPAID, BASED UPON OUR
APPLICATION OF THE TRANSIT PRIVILEGE UNDER AUTHORITY OF ASSOCIATION OF
AMERICAN RAILROADS SECTION 22 QUOTATION 41-B. THE REPORTED OVERCHARGE
OF $760.34 WAS COLLECTED FROM AMOUNTS OTHERWISE FOUND DUE YOU, PURSUANT
TO 49 U.S.C. 66.
YOU HAVE PROTESTED OUR ACTION, AS AFORESAID, ON THE GROUND THAT THE
THROUGH RATE PROVISIONS OF ASSOCIATION OF AMERICAN RAILROADS SECTION 22
QUOTATION NO. 41-B, AMENDMENT NO. 8, ITEM 14, PARAGRAPH (B), ARE
APPLICABLE ONLY WHEN THE INBOUND CARRIER TO, AND THE OUTBOUND CARRIER
FROM, THE TRANSIT STATION ARE THE SAME; AND SINCE THE INBOUND SHIPMENT
OF THIS CARGO TO DENVER WAS ACCOMPLISHED BY THE DENVER AND RIO GRANDE
WESTERN RAILROAD COMPANY, AND THE OUTBOUND SHIPMENT FROM THAT POINT WAS
PERFORMED BY THE UNION PACIFIC RAILROAD COMPANY, YOU CONTEND THAT THE
GOVERNMENT IS NOT ENTITLED TO TRANSIT PRIVILEGES.
ASSOCIATION OF AMERICAN RAILROADS SECTION 22 QUOTATION NO. 41-B, ITEM
14, PARAGRAPH (B) READS:
"/B) THE INBOUND LINE-HAUL CARRIER SERVING THE TRANSIT POINT SHALL
SUPERVISE AND MANAGE THE TRANSIT PRIVILEGE IN ACCORDANCE WITH THE
PROVISIONS OF THIS QUOTATION AND KEEP ALL RECORDS REQUIRED OF THE
CARRIERS IN CONNECTION THEREWITH. ALL ARRANGEMENTS FOR THE OUTBOUND
MOVEMENT OF EACH SHIPMENT FROM SUCH TRANSIT POINT MUST BE MADE WITH SUCH
INBOUND CARRIER.'
IT WILL BE OBSERVED THAT THERE IS NO SPECIFIC PROVISION IN THE
QUOTATION NO. 41-B THAT THE OUTBOUND CARRIER FROM THE TRANSIT POINT
SHALL BE THE SAME AS THE INBOUND CARRIER, AS YOU CONTEND. RATHER, IT IS
OUR BELIEF THAT THE PRIMARY PURPOSE OF THE QUOTED PROVISION IS TO
IDENTIFY THE CARRIER FROM WHICH THE TRANSIT PRIVILEGE MUST BE REQUESTED
AND TO PROVIDE THAT NOTICE BE GIVEN TO THAT CARRIER OF SUBSEQUENT
OUTBOUND SHIPMENT. MOREOVER, SINCE THE CARRIER GRANTING THE TRANSIT
PRIVILEGE IS REQUIRED BY THE TERMS OF THE QUOTATION TO SUPERVISE THE
TRANSIT RECORDS, THE QUOTED PROVISION THAT "ARRANGEMENTS" FOR OUTBOUND
SHIPMENTS MUST BE MADE WITH THE INBOUND CARRIER WAS DESIGNED FOR THE
PURPOSE OF GIVING THAT CARRIER NOTICE SO THAT IT CAN ADJUST THE TRANSIT
RECORDS, AND WAS NOT INTENDED TO REQUIRE THAT THE INBOUND CARRIER
PERFORM THE OUTBOUND HAUL. TO GIVE EFFECT TO THE CONSTRUCTION PLACED ON
THE ITEM 4 (B) BY YOU WOULD BE TO PRECLUDE THE APPLICATION OF THE
TRANSIT PRIVILEGE AT JUNCTION POINTS WHERE THE INBOUND CARRIER REACHES
ITS TERMINAL. THERE IS NOTHING IN THE QUOTATION THAT WARRANTS SUCH A
CONSTRUCTION, PARTICULARLY SINCE THE THROUGH RATE IS APPLICABLE ON
TRAFFIC INTERCHANGED AT DENVER, COLORADO.
ACCORDINGLY, IT MUST BE CONCLUDED THAT THE PROPER CHARGES ON THESE
SHIPMENTS ARE THOSE COMPUTED ON THE BASIS OF THE THROUGH RATE, PLUS A
TRANSIT CHARGE, SUCH AS WERE PAID HERE, AND THEREFORE OUR SETTLEMENT OF
DECEMBER 29, 1958, DISALLOWING YOUR CLAIM, IS SUSTAINED.
B-139801, AUG. 5, 1959
MR. ROBERTO SANTIAGO-VASQUEZ:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 7, 1959, IN EFFECT
REQUESTING REVIEW OF THE SETTLEMENT OF AUGUST 12, 1955, WHICH DISALLOWED
YOUR CLAIM FOR TRAVEL AND TRANSPORTATION ALLOWANCES FOR YOURSELF, YOUR
WIFE AND TWO CHILDREN, WHO WERE FOUR YEARS AND ONE YEAR OF AGE,
RESPECTIVELY, FOR TRAVEL PERFORMED FROM NEW YORK, NEW YORK, TO A
SELECTED HOME, GUAYAMA, PUERTO RICO, BY WAY OF SAN JUAN, PUERTO RICO,
INCIDENT TO YOUR RETIREMENT FROM THE UNITED STATES ARMY, IN THE GRADE OF
BY PARAGRAPH 12, SPECIAL ORDERS NO. 20, LETTERMAN ARMY HOSPITAL, SAN
BY PARAGRAPH 12, SPECIAL ORDERS NO. 20, LETTERMAN ARMY HOSPITAL, SAN
FRANCISCO, CALIFORNIA, DATED JANUARY 28, 1955, YOU WERE ORDERED TO
PROCEED TO YOUR HOME, 456 PULASKY STREET, BROOKLYN, NEW YORK, AND REMAIN
THERE AWAITING FURTHER ORDERS IN CONNECTION WITH PHYSICAL EVALUATION
BOARD PROCEEDINGS. BY PARAGRAPH 88, SPECIAL ORDERS NO. 36, DEPARTMENT
OF THE ARMY, WASHINGTON, D.C., DATED FEBRUARY 21, 1955, WHILE AT
BROOKLYN, YOU WERE PLACED ON THE RETIRED LIST AS PERMANENTLY UNFIT FOR
DUTY BY REASON OF PHYSICAL DISABILITY EFFECTIVE FEBRUARY 28, 1955. THE
RECORD SHOWS THAT ON MARCH 12, 1955, YOU AND YOUR DEPENDENTS TRAVELED BY
COMMERCIAL AIR FROM NEW YORK TO SAN JUAN, AT A COST TO YOU OF $160, AND
THENCE, BY HIRED VEHICLE TO GUAYAMA AT A COST OF $25. YOUR CLAIM WAS
DISALLOWED BY THE SETTLEMENT OF AUGUST 12, 1955, ON THE GROUND THAT
GOVERNMENT WATER TRANSPORTATION BETWEEN NEW YORK AND PUERTO RICO WAS
AVAILABLE. IN SUPPORT OF YOUR REQUEST FOR FURTHER CONSIDERATION OF YOUR
CLAIM YOU CITE PUBLIC LAW 85-576.
THE PUBLIC LAW TO WHICH YOU REFER, PUBLIC LAW 85-576, 72 STAT. 455,
APPROVED BY THE PRESIDENT OF THE UNITED STATES ON JULY 31, 1958,
CONCERNS ONLY MEMBERS OF THE UNIFORMED SERVICES WHO BECAUSE OF PHYSICAL
INCAPACITY OR MENTAL INCOMPETENCE WERE UNABLE TO TRAVEL TO A SELECTED
HOME WITHIN THE TIME LIMITATION FIXED BY THE EXISTING LAW AND
REGULATIONS. SINCE YOU WERE ABLE TO PERFORM, AND DID PERFORM, TRAVEL TO
YOUR SELECTED HOME IMMEDIATELY FOLLOWING YOUR RETIREMENT, THIS LAW DOES
NOT EFFECT YOUR CLAIM IN ANY WAY.
UNDER THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS PROMULGATED
PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 303 OF THE CAREER
COMPENSATION ACT OF 1949, 63 STAT. 813, YOU WERE ENTITLED TO
REIMBURSEMENT FOR ALL LAND TRAVEL INVOLVED IN PROCEEDING FROM THE PLACE
OF YOUR RETIREMENT TO YOUR SELECTED HOME ON A MILEAGE BASIS AT THE RATE
OF SIX CENTS A MILE FOR YOURSELF AND FOR EACH DEPENDENT 12 YEARS OF AGE
OR OVER, AND THE RATE OF THREE CENTS A MILE FOR EACH DEPENDENT FIVE
YEARS OF AGE OR OVER, BUT UNDER 12 YEARS OF AGE. WITH RESPECT TO
TRANSOCEAN TRAVEL, HOWEVER, APPLICABLE REGULATIONS REQUIRE THAT SUCH
TRAVEL SHALL NOT BE BY OTHER THAN GOVERNMENT AIRCRAFT OR VESSEL.
ACCORDINGLY, SINCE THE RECORDS SHOW THAT GOVERNMENT WATER TRANSPORTATION
WAS AVAILABLE FOR MILITARY MEMBERS AND ELIGIBLE DEPENDENTS DURING THE
PERIOD OF YOUR TRAVEL, THERE IS NO LEGAL BASIS ON WHICH WE MAY ALLOW ANY
PART OF THE AMOUNT CLAIMED BY YOU FOR TRAVEL BY COMMERCIAL AIR FROM NEW
YORK TO SAN JUAN. WITH RESPECT TO THE LAND TRAVEL FROM SAN JUAN TO
GUAYAMA, YOU ARE ENTITLED TO REIMBURSEMENT FOR SUCH TRAVEL ON A MILEAGE
BASIS FOR YOURSELF AND YOUR WIFE. A SETTLEMENT FOR THE AMOUNT FOUND
DUE, COMPUTED ON THE BASIS INDICATED ABOVE, WILL ISSUE IN DUE
B-140182, AUG. 5, 1959
TO IDEAL RESTAURANT SUPPLY CO., INC. :
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 24, 1959,
REGARDING OUR SETTLEMENT DATED JUNE 5, 1959, WHICH DISALLOWED YOUR CLAIM
FOR $45 ALLEGED TO BE DUE UNDER DEPARTMENT OF THE AIR FORCE PURCHASE
ORDER NO. (04-606) 58-22906, DATED JUNE 26, 1958.
ON THE BASIS OF THE BID WHICH YOU SUBMITTED TO THE MCCLELLAN AIR
FORCE BASE, THE PURCHASE ORDER WAS ISSUED TO YOU ON JUNE 26, 1958, FOR
FURNISHING, AMONG OTHERS, ITEM NO. 8012, COVERING 25 DELIVERY AND
STORAGE PASTRY CABINETS AT $68.07 EACH, OR FOR A TOTAL PRICE FOR THE
ITEM OF $1,701.75. SUBSEQUENT TO THE AWARD IT WAS FOUND THAT IN
CONSIDERING THE BIDS WHICH WERE RECEIVED, THE GOVERNMENT PURCHASING
OFFICER MISTAKENLY BELIEVED THAT THE DIFFERENCE OF $9.57, WHICH EXISTED
BETWEEN THE LOWEST BID RECEIVED OF $58.50 FOR THE CABINETS AND YOUR BID
OF $68.07, WAS THE TOTAL DIFFERENCE IN THE BIDS INSTEAD OF THE
DIFFERENCE IN THE UNIT PRICES ONLY AND, THEREFORE, MADE A MULTIPLE AWARD
TO YOU UNDER PARAGRAPH NO. 15 OF THE SPECIAL PROVISIONS OF THE
INVITATION. AS A RESULT, YOU WERE ADVISED BY TELEPHONE ON JULY 15,
1958, THAT AN ERROR HAD BEEN MADE IN AWARDING ITEM NO. 8012 TO YOU AND
LATER YOU WERE ADVISED NOT TO INCUR ANY RESPONSIBILITY WITH RESPECT TO
PERFORMANCE. THE ITEM ULTIMATELY WAS CANCELED FROM THE PURCHASE ORDER
AND NO SUBSEQUENT ORDER WAS ISSUED FOR THE CABINETS AS THE REQUIREMENT
THEREFOR NO LONGER EXISTED. YOU CLAIM THE SUM OF $45, ALLEGEDLY
REPRESENTING THE COST OF LONG DISTANCE TELEPHONE CALLS, LEGAL AND OFFICE
EXPENSES.
YOUR LETTER OF JUNE 24, 1959, ADVANCES THE CONTENTION THAT THE LOW
BID OF $58.50 WAS NOT THE LOWEST CORRECT BID RECEIVED SINCE THE CABINET
OFFERED BY THAT BID WAS OF A DIFFERENT MANUFACTURE AND NOT OF THE
REQUIRED CAPACITY AND, THEREFORE, WAS NOT THE EQUAL OF THE ITEM
SPECIFIED IN THE INVITATION. IN VIEW OF THIS, YOU STATE IT CANNOT BE
UNDERSTOOD HOW THE AWARD MADE TO YOU CAN BE CONSIDERED ILLEGAL. ALSO,
YOU CONTEND THAT SINCE NO OTHER AWARD WAS MADE FOR THE PASTRY CABINETS
THE CANCELLATION WAS FOR THE CONVENIENCE OF THE GOVERNMENT AND UNDER
THOSE CIRCUMSTANCES YOU ARE ENTITLED TO THE EXPENSES INCURRED BY REASON
OF THE SAID CANCELLATION.
THE PROVISIONS OF THE PROCUREMENT LAW APPLICABLE TO THE TRANSACTIONS
WITH WHICH WE ARE HERE CONCERNED MAY BE FOUND IN 10 U.S.C. 2305 (B) AND
REQUIRE, IN PERTINENT PART, THAT:
"AWARDS SHALL BE MADE * * * 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. * * *"
THE FACTS AS REPORTED BY THE DEPARTMENT OF THE AIR FORCE SHOW THAT
CRESCENT METAL PRODUCTS, C., DID SUBMIT THE LOWEST BID RECEIVED.
MOREOVER, THERE CAN BE NO DOUBT THAT PRIOR TO THE CANCELLATION OF ITEM
NO. 8012 FROM THE PURCHASE ORDER, THE MCCLELLAN AIR FORCE BASE FULLY
CONSIDERED AND DETERMINED THAT THE PASTRY CABINETS OFFERED BY THE LOW
BIDDER WERE IN STRICT COMPLIANCE WITH THE REQUIREMENTS OF THE
INVITATION. IN VIEW OF THIS, AND SINCE IT IS NOT SHOWN THAT CRESCENT
METAL PRODUCTS, INC., WAS NOT AN OTHERWISE RESPONSIBLE BIDDER, IT IS
OBVIOUS THAT THE PURCHASING OFFICER'S REJECTION OF THE CORPORATION'S LOW
BID OF $58.50 EACH--- THROUGH THE ERRONEOUS BELIEF AS TO THE EXTENT OF
THE DIFFERENCE IN THE BIDS--- AND THE AWARD OF THE CONTRACT TO YOU AS
THE NEXT LOWEST RESPONSIBLE BIDDER WAS CONTRARY TO THE STATUTE AND,
THEREFORE, WAS WITHOUT LEGAL EFFECT TO CREATE A CONTRACT. AS STATED IN
OUR SETTLEMENT OF JUNE 5, 1959, THE PRINCIPLE IS WELL ESTABLISHED THAT
ACTS OF CONTRACTING OFFICERS IN EXCESS OF AUTHORITY CONFERRED UPON THEM
BY STATUTE OR REGULATION ARE VOID AND DO NOT BIND OR ESTOP THE
GOVERNMENT.
IN ADDITION, THE DEPARTMENT OF THE AIR FORCE REPORTS THAT YOUR
TELEPHONE CALLS TO THE MCCLELLAN AIR FORCE BASE WERE MADE AT GOVERNMENT
EXPENSE. ALSO, IT APPEARS FROM YOUR LETTER OF JULY 19, 1958, TO THAT
BASE THAT YOU PLACED YOUR ORDER FOR THE PASTRY CABINETS AND CARRIED ON
RELATED NEGOTIATIONS WITH YOUR MANUFACTURER'S REPRESENTATIVE RIGHT IN
NEW YORK CITY. HOWEVER, EVEN IF YOUR CLAIM FOR THE $45 WERE COMPLETELY
SUBSTANTIATED, OUR OFFICE CONSISTENTLY HAS DENIED REIMBURSEMENT OF COSTS
INCURRED BY BIDDERS IN RELIANCE ON AN ILLEGAL AWARD WHERE THERE IS NO
SHOWING THAT THE UNITED STATES HAS RECEIVED ANY DIRECT BENEFIT FROM SUCH
EXPENDITURES. PERSONS DEALING WITH AGENTS OF THE UNITED STATES ARE
PRESUMED TO KNOW THE EXTENT OF THE AGENT'S AUTHORITY AND EXPENSES
INCURRED BY A BIDDER BASED ON AN ILLEGAL AWARD ARE INCURRED AT HIS OWN
RISK. SEE 37 COMP. GEN. 51.
WE DO NOT AGREE THAT THE CANCELLATION OF ITEM NO. 8012 WAS MADE FOR
THE CONVENIENCE OF THE GOVERNMENT. THE DEPARTMENT OF THE AIR FORCE
EXPRESSLY STATES THAT THE CANCELLATION BECAME NECESSARY BECAUSE OF THE
ILLEGAL AWARD. ALSO, THE FACT THAT THE AIR FORCE BASE NEGOTIATED WITH
YOU AT OR ABOUT THE TIME THE ERRONEOUS AWARD WAS DISCOVERED TO SEE IF
YOU COULD FURNISH THE CABINETS AT A REDUCED PRICE CLEARLY SHOWS THAT AT
THAT TIME THE BASE STILL WAS DESIROUS OF EFFECTING DELIVERY OF THE
CABINETS IF SOME OTHER MUTUALLY SATISFACTORY AND PROPER ADJUSTMENT OF
THE TRANSACTION COULD BE WORKED OUT. THE FACT THAT IT LATER WAS
DETERMINED THE CABINETS WERE NO LONGER REQUIRED IN NO WAY MAY BE
ASSOCIATED WITH THE PRIOR CANCELLATION.
B-140192, AUG. 5, 1959
TO MRS. ESPERANZA O. SNOOK:
YOUR LETTER OF JUNE 15, 1959, REQUESTS REVIEW OF OUR DEMANDS FOR
PAYMENT OF $421.41 WHICH WAS ERRONEOUSLY PAID TO YOU BY THE CIVIL
SERVICE COMMISSION AS LUMP SUM BENEFIT AND SURVIVOR'S ANNUITY BENEFIT
AFTER THE DEATH OF LLOYD SNOOK.
YOU HAVE BEEN INFORMED THAT PAYMENT TO YOU OF THE LUMP SUM BENEFIT
WAS IN ERROR BECAUSE A VALID DESIGNATION OF BENEFICIARY ON THE PART OF
LLOYD SNOOK WAS NOT ON FILE WITH THE CIVIL SERVICE COMMISSION. THE
DESIGNATION OF BENEFICIARY FILED BY MR. SNOOK IN 1948 WAS MADE NULL AND
VOID BY THE ACT OF JUNE 14, 1950, 64 STAT. 215, 5 U.S.C. 724 (K), AND NO
DESIGNATION WAS SUBSEQUENTLY FILED. YOU NOW CONTEND THAT THE ABSENCE OF
A DESIGNATION OF BENEFICIARY, EXECUTED SUBSEQUENT TO SEPTEMBER 1, 1950,
AS REQUIRED BY THE CITED ACT, IN LIGHT OF THE 1948 DESIGNATION, IS
MERELY A MATTER OF PROCEDURE AND SHOULD NOT DEFEAT YOUR RIGHT TO THAT
PAYMENT. THE DESIGNATION OF BENEFICIARY EXECUTED IN 1948 EXPRESSLY WAS
RENDERED NULL AND VOID BY THE ACT OF JUNE 14, 1950. THE ACT AFFORDED
EACH EMPLOYEE AN OPPORTUNITY TO REDESIGNATE A BENEFICIARY BUT PROVIDED
THAT IN THE ABSENCE OF SUCH A REDESIGNATION, PAYMENT SHALL BE MADE TO
THE WIDOW OF SUCH EMPLOYEE OR AS OTHERWISE PROVIDED BY THE STATUTE. THE
PROVISION FOR A REDESIGNATION, THEREFORE, MUST BE REGARDED AS
SUBSTANTIVE RATHER THAN PROCEDURAL IN NATURE.
ALSO, YOU CONTEND THAT THE CIVIL SERVICE COMMISSION WAS IN ERROR IN
ITS DETERMINATION THAT YOU HAVE FAILED TO ESTABLISH YOURSELF AS THE
WIDOW OF LLOYD SNOOK AND IN ITS DEMAND FOR REPAYMENT OF ANNUITY BENEFITS
YOU HAD RECEIVED. WE ARE INFORMED THAT AFTER A CAREFUL STUDY AND FIELD
INVESTIGATION, THE COMMISSION DETERMINED THAT THE VALIDITY OF YOUR
MARRIAGE TO MR. SNOOK COULD NOT BE ESTABLISHED BECAUSE EVIDENCE OF THE
DISSOLUTION OF MR. SNOOK'S TWO PREVIOUS MARRIAGES COULD NOT BE FOUND.
THE COMMISSION IS CHARGED BY LAW WITH THE ADMINISTRATION OF THE CIVIL
SERVICE RETIREMENT ACT AND WE HAVE CONSISTENTLY TAKEN THE VIEW THAT THE
DETERMINATION OF ELIGIBILITY FOR ANNUITIES OR OTHER RETIREMENT BENEFIT
PAYMENTS PRIMARILY IS WITHIN THE JURISDICTION OF THE ADMINISTERING
AGENCY. SEE 30 COMP. GEN. 51 AND CASES CITED THEREIN. WE ARE, HOWEVER,
CHARGED BY THE BUDGET AND ACCOUNTING ACT, 1921, AS AMENDED, 31 U.S.C.
71, WITH THE RESPONSIBILITY OF SETTLING OR ADJUSTING CLAIMS BY THE
UNITED STATES.
WE HAVE BEEN INFORMALLY ADVISED BY THE VETERANS ADMINISTRATION THAT
THERE IS NO "LUMP SUM BALANCE" DUE YOU AS WIDOW OF LLOYD SNOOK. WE
MUST, THEREFORE, REQUEST THAT YOU COMPLY WITH OUR PREVIOUS DEMANDS FOR
PAYMENT AND FORWARD A REMITTANCE IN THE FULL AMOUNT OR A PROMPT INITIAL
PAYMENT, TOGETHER WITH A DEFINITE PLAN FOR PAYMENT OF THE BALANCE IN
INSTALLMENTS WITHIN A REASONABLE TIME. REMITTANCES SHOULD BE MADE BY
CHECK OR MONEY ORDER DRAWN TO THE ORDER OF THE ,U.S. GENERAL ACCOUNTING
OFFICE" AND FORWARDED TO THE U.S. GENERAL ACCOUNTING OFFICE, POST OFFICE
BOX 2610, WASHINGTON 13 D.C., QUOTING THE REFERENCE DW-Z-1841539-CMM-7.
B-140214, AUG. 5, 1959
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED JULY 13, 1959, WITH ENCLOSURES,
FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), RELATING TO A
MISTAKE IN BID ALLEGED BY THE A AND B SURPLUS COMPANY, 465 WEST
BROADWAY, NEW YORK 12, NEW YORK, AFTER THE AWARD OF A CONTRACT PURSUANT
TO INVITATION FOR BIDS NO. 15-010-S-59-14, DATED APRIL 15, 1959--- A
SPOT BID SALE. OUR DECISION IS REQUESTED AS TO WHETHER THE CONTRACTOR
MAY BE RELIEVED OF THE AWARD OF ITEMS 38 AND 39 COVERED BY THE
INVITATION.
THE RECORD SHOWS THAT BY THE CITED INVITATION THE LEXINGTON SIGNAL
DEPOT, LEXINGTON, KENTUCKY, OFFERED FOR SALE VARIOUS ITEMS OF
GOVERNMENT-OWNED SURPLUS PROPERTY, THE BIDS TO BE OPENED AT 1 P.M. ON
APRIL 15, 1959. IN RESPONSE TO THE INVITATION, THE A AND B SURPLUS
COMPANY SUBMITTED THE FOLLOWING BIDS: ITEM 38, 20,000 SUPPRESSORS AT
THE PRICE OF $0.0636 EACH, AND ITEM 39, 50,000 SUPPRESSORS AT THE PRICE
OF $0.0686 EACH. AWARD WAS MADE ACCORDINGLY. FIVE OTHER BIDS WERE
RECEIVED AS TO EACH OF THESE ITEMS, THE BIDS AS TO ITEM 38 RANGING FROM
$0.0022 EACH TO $0.023 EACH, AND AS TO ITEM 39 FROM $0.002 EACH TO
$0.025 EACH.
IT IS REPORTED THAT ON APRIL 16, 1959, THE DAY FOLLOWING THE BID
OPENING MR. SAFFAR OF THE A AND B SURPLUS COMPANY CALLED THE PROPERTY
DISPOSAL OFFICE FOR THE RESULTS OF THE SALE AND WAS ADVISED THAT HIS
FIRM HAD BEEN AWARDED ITEMS 38 AND 39 AT THE ABOVE-STATED PRICES.
THEREUPON MR. SAFFAR STATED HE HAD EVIDENTLY MADE AN ERROR IN PLACING
THE DECIMAL POINT SINCE HE HAD INTENDED TO BID ONLY $0.00636 EACH FOR
ITEM 38 AND $0.00686 EACH FOR ITEM 39. THE NEXT DAY, APRIL 17, 1959,
THE PROPERTY DISPOSAL OFFICER RECEIVED A LETTER FROM THE CONTRACTOR
CONFIRMING THE INFORMATION GIVEN OVER THE TELEPHONE AND COMPLAINING
FURTHER THE ERROR WHICH HAD BEEN MADE IN SUBMITTING ITS BID, IT BEING
POINTED OUT THAT THE FIRM HAD SUBMITTED A BID OF ONLY $0.00383 EACH FOR
A QUANTITY OF 144,588 SUPPRESSORS WHICH WERE OFFERED FOR SALE AT ANOTHER
INSTALLATION. WITH LETTER OF APRIL 20, 1959, THE CONTRACTOR SUBMITTED
AS FURTHER EVIDENCE OF ITS ERROR INFORMATION SHOWING THAT A QUANTITY OF
31,300 SUPPRESSORS--- THE SAME ITEM AS HERE INVOLVED--- HAD BEEN SOLD BY
THE DEPARTMENT OF THE NAVY AT BAYONNE, NEW JERSEY, AT THE PRICE OF
$0.0137 EACH. BY A FURTHER LETTER DATED JUNE 9, 1959, THE CONTRACTOR
SUBMITTED ITS COPY OF THE SALES INVITATION ON WHICH ITEMS 38 AND 39 WERE
SHOWN AS IN THE AMOUNTS OF $127.20 AND $343, RESPECTIVELY.
IN HIS FINDINGS AND RECOMMENDATION IN THIS CASE, THE CONTRACTING
OFFICER STATED THAT IN OCTOBER 1958, AN EQUAL QUANTITY OF SUPPRESSORS,
VERY SIMILAR TO THOSE HERE INVOLVED, WERE SOLD AT HIS INSTALLATION AT
THE PRICE OF $0.0161 EACH, AND THAT THE AVERAGE BID RECEIVED WAS
$0.00794. IT WAS THE OPINION OF THE CONTRACTING OFFICER THAT AN HONEST
ERROR WAS MADE BY THE BIDDER AND HE RECOMMENDED THAT THE CONTRACTOR BE
RELIEVED OF LIABILITY AND THAT THE ITEMS BE AWARDED AT THE NEXT HIGHEST
BID, PROVIDED THE NEXT HIGHEST BIDDER IS WILLING TO ACCEPT THE AWARD AT
THE TIME OF THE RECEIPT OF A FINAL DECISION IN THE MATTER. BY A
SUPPLEMENTAL STATEMENT DATED JUNE 11, 1959, THE CONTRACTING OFFICER
REPORTED THAT THE BIDS OF THE A AND B SURPLUS COMPANY FOR ITEMS 38 AND
39 WERE UNUSUALLY HIGH COMPARED TO THE OTHER BIDS RECEIVED, BUT THAT
THEY WERE NOT SO UNUSUALLY HIGH THAT AN ERROR SHOULD HAVE BEEN SUSPECTED
AT THE TIME THE SALE WAS BEING CONDUCTED; THAT WIDE VARIANCES IN
BIDDING FOR SURPLUS PROPERTY ARE COMMON OCCURRENCES; AND THAT SINCE
AWARDS ON SPOT BID SALES ARE MADE "ON THE SPOT" AT THE TIME OF SALE
THERE IS NOT SUFFICIENT TIME FOR A CLOSE ANALYSIS OF EACH BID RECEIVED.
BY SECOND ENDORSEMENT DATED MAY 26, 1959, THE U.S. ARMY DISPOSAL
CENTER, CAMERON STATION, ALEXANDRIA, VIRGINIA, RECOMMENDED THAT THE
AWARDS ON ITEMS 38 AND 39 BE CANCELLED; THAT THE CONTRACTOR BE GRANTED
RELIEF; AND THAT THE PROPERTY ON ITEMS 38 AND 39 BE READVERTISED ON A
SUBSEQUENT SALE. IN A REPORT DATED JUNE 26, 1959, THE OFFICE OF THE
QUARTERMASTER GENERAL RECOMMENDED THAT NO RELIEF BE ALLOWED IN THIS
CASE, IT BEING STATED THAT THE VARIATION IN BIDS WAS NOT SO UNUSUAL AS
TO INDICATE ERROR AND THAT THE ALLEGED INTENDED EXTENSION WAS NOT SHOWN
ON THE SPOT BID CARD.
IT HAS BEEN HELD IN NUMEROUS DECISIONS OF OUR OFFICE THAT IN VIEW OF
WIDE RANGE OF PRICES ORDINARILY RECEIVED ON SALVAGE, WASTE AND SURPLUS
PROPERTY, A MERE PRICE DIFFERENCE WOULD NOT NECESSARILY PLACE A
CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR, AS WOULD
SIMILAR PRICE DIFFERENCES ON NEW EQUIPMENT OR SUPPLIES TO BE FURNISHED
THE GOVERNMENT. THE REASON FOR SUCH HOLDINGS IS THAT THE PRICES OFFERED
TO THE GOVERNMENT FOR ITS PROPERTY ARE BASED MORE OR LESS UPON THE USE
TO WHICH THE PROPERTY IS TO BE PUT BY THE PARTICULAR BIDDER OR UPON THE
RISK OF RESALE THE BIDDER MIGHT WISH TO TAKE.
IT IS TO BE NOTED THAT IN THE INSTANT MATTER THE CONTRACTING OFFICER
REPORTED THAT WHILE THE BIDS OF THE A AND B SURPLUS COMPANY WERE
UNUSUALLY HIGH COMPARED TO THE OTHER BIDS RECEIVED, THEY WERE NOT SO
UNUSUALLY HIGH THAT AN ERROR SHOULD HAVE BEEN SUSPECTED AT THE TIME THE
SALE WAS BEING CONDUCTED. INSOFAR AS THE PRESENT RECORD SHOWS, THE
ACCEPTANCE OF THE BID IN THIS CASE WAS IN GOOD FAITH, NO ERROR HAVING
BEEN ALLEGED UNTIL AFTER AWARD. ACCORDINGLY, THE ACCEPTANCE OF THE BIDS
CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND
OBLIGATIONS OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE
COMPANY, 249 U.S. 313, AND AMERICAN SMELTING AND REFINING COMPANY V.
UNITED STATES, 259 U.S. 75.
THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE
TO AN INVITATION TO BID IS UPON THE BIDDER. SEE FRAZIER-DAVIS
CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163.
IF AN ERROR WAS MADE IN THE PREPARATION OF THE BID, AS ALLEGED, IT
PROPERLY MAY BE ATTRIBUTED TO THE CONTRACTOR'S NEGLIGENCE AND SINCE THE
ERROR WAS UNILATERAL--- NOT MUTUAL--- THE CONTRACTOR IS NOT ENTITLED TO
RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259,
AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.
ACCORDINGLY, THERE APPEARS TO BE NO LEGAL BASIS WHEREBY THE CONTRACTOR
MAY BE RELIEVED FROM ITS OBLIGATIONS UNDER THE CONTRACT.
B-140235, AUG. 5, 1959
TO LARIS BROTHERS AND COMPANY, INC. :
REFERENCE IS MADE TO YOUR LETTER OF JUNE 25, 1959, REQUESTING
RECONSIDERATION OF SETTLEMENT DATED APRIL 29, 1959, WHICH DISALLOWED
YOUR CLAIM FOR $6,262.20 AS A REFUND OF A PORTION OF THE PRICE WHICH YOU
PAID THE DEPARTMENT OF THE ARMY FOR SURPLUS MATERIAL PURSUANT TO
CONTRACT NO. DA/A/28-013-AI-42, DATED JULY 22, 1958.
BY INVITATION NO. 28-013-S-58-93 BIDS WERE REQUESTED FOR THE PURCHASE
FROM THE GOVERNMENT OF MISCELLANEOUS SCRAP MATERIALS. IN RESPONSE, YOU
SUBMITTED A BID OF $80,350.92 FOR ITEM NO. 7, DESCRIBED IN THE
INVITATION AS ONE LOT OF SPRINGS, VOLUTE G102, CONSISTING OF
APPROXIMATELY 144,889 EACH, USED, APPROXIMATE WEIGHT 5,650,671 POUNDS.
YOUR BID, WHICH WAS THE HIGHEST OF SIX BIDS COVERING A RANGE FROM
$4,347.84 TO THE NEXT HIGHEST BID OF $72,037, WAS ACCEPTED AND, UPON THE
PAYMENT OF $80,350.92, THE FULL CONTRACT CONSIDERATION, DELIVERY OF THE
MATERIAL WAS EFFECTED.
THE INVITATION CONTAINED THE "GENERAL SALE TERMS AND CONDITIONS," THE
PERTINENT PROVISIONS OF WHICH ARE AS FOLLOWS:
"2. CONDITION OF PROPERTY.--- ALL PROPERTY LISTED HEREIN IS OFFERED
FOR SALE "AS IS" AND ,WHERE IS," AND WITHOUT RECOURSE AGAINST THE
GOVERNMENT. * * * THE DESCRIPTION IS BASED ON THE BEST AVAILABLE
INFORMATION, BUT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY, OR
REPRESENTATION, EXPRESSED OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER,
QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF ANY OF THE PROPERTY, OR ITS
FITNESS FOR ANY USE OR PURPOSE, AND NO CLAIM WILL BE CONSIDERED FOR
ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE BASED UPON FAILURE
OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED; THIS IS NOT A
SALE BY SAMPLE.'
"8. ADJUSTMENT FOR VARIATION IN QUANTITY OR WEIGHT.--- ANY VARIATION
BETWEEN THE QUANTITY OR WEIGHT LISTED FOR ANY ITEM AND THE QUANTITY OR
WEIGHT OF SUCH ITEM TENDERED OR DELIVERED TO THE PURCHASER WILL BE
ADJUSTED ON THE BASIS OF THE UNIT PRICE QUOTED FOR SUCH ITEM; BUT NO
ADJUSTMENT FOR SUCH VARIATION WILL BE MADE WHERE AN AWARD IS MADE ON A
"PRICE FOR THE LOT" BASIS.'
SUBSEQUENT TO DELIVERY, YOU ADVISED THE DISPOSAL AGENCY THAT ONLY
133,597 PIECES WERE RECEIVED--- A SHORTAGE OF 11,292--- ON THE BASIS OF
WHICH YOU SUBMITTED A CLAIM FOR $6,262.20, REPRESENTING THE VALUE OF
11,292 PIECES AT ?55457 EACH, WHICH FIGURE YOU APPARENTLY USED IN MAKING
YOUR LOT BID OF $80,350.92. YOUR CLAIM WAS FORWARDED TO THIS OFFICE
AND DISALLOWED BY THE SETTLEMENT OF APRIL 29, 1959, FOR THE REASONS SET
FORTH HEREIN.
IN REQUESTING REVIEW OF THE SETTLEMENT YOU STATE THAT THE GOVERNMENT
MADE A MISTAKE IN ITS ESTIMATE OF THE TOTAL NUMBER OF UNITS IN THE LOT;
THAT THE SHORTAGE OF CLOSE TO 10 PERCENT WAS MORE THAN "APPROXIMATE," AS
ADVERTISED; THAT THE MANNER IN WHICH THE PROPERTY WAS STORED MADE IT
IMPOSSIBLE UPON INSPECTION TO PROPERLY ESTIMATE THE NUMBER OF
SPRINGS; AND THAT YOUR BID WAS APPROXIMATELY $8,000 MORE THAN THAT OF
THE NEXT HIGHEST BIDDER.
AT THE OUTSET, IT MAY BE STATED THAT THE CONCEPT OF MUTUAL MISTAKE
HAS GENERALLY NO PROPER APPLICABILITY TO CONTRACTS OF SALE OF GOVERNMENT
PROPERTY CONTAINING THE STANDARD DISCLAIMER OF WARRANTY CLAUSE SUCH AS
USED IN THE PRESENT CASE. B-130285, FEBRUARY 26, 1957, 36 COMP. GEN.
612.
IN DISPOSING OF SURPLUS MATERIALS THE GOVERNMENT IS NOT ENGAGED IN
NORMAL TRADE AND FREQUENTLY IS IGNORANT OF THE CONDITION, QUANTITY,
WEIGHT, ETC., OF THE GOODS IT SELLS. THAT FACT IS MADE KNOWN TO ALL
BIDDERS BY THE "AS IS" TERMS OF THE CONTRACT, QUOTED ABOVE. FURTHERMORE
THE PRESENT SALE WAS BY LOT AND BIDDERS WERE SPECIFICALLY CAUTIONED IN
PARAGRAPH 8 OF THE GENERAL SALE TERMS AND CONDITIONS, QUOTED ABOVE, THAT
NO ADJUSTMENT FOR A VARIATION IN THE QUANTITY OR WEIGHT LISTED FOR ANY
ITEM AND THE QUANTITY OR WEIGHT TENDERED OR DELIVERED TO THE PURCHASER
WOULD BE MADE WHERE AWARD IS MADE ON A "PRICE FOR THE LOT" BASIS. THUS,
UNDER THE CLEAR TERMS OF THE CONTRACT YOU AGREED TO ASSUME THE RISK AS
TO THE QUANTITY AND WEIGHT OF THE MATERIAL SOLD AS ONE OF THE ELEMENTS
OF THE BARGAIN. IN THE CASE OF OVERSEAS NAVIGATION CORPORATION V.
UNITED STATES, 131 C.CLS. 70, THE COURT HELD THAT THE TERMS OF THE SALE
CONTRACT THERE UNDER CONSIDERATION, INCLUDING ITS "AS IS, WHERE IS"
PROVISIONS, SPOKE FOR THEMSELVES AND THE PLAINTIFF WAS LEGALLY BOUND BY
THEM.
THERE IS NO INDICATION IN THE PRESENT RECORD THAT THE INVITATION WAS
NOT PREPARED IN GOOD FAITH OR THAT THERE WAS BETTER INFORMATION
AVAILABLE TO THE GOVERNMENT. THE MERE FACT THAT THE DISPOSAL OFFICER
MAY HAVE HAD AN ERRONEOUS UNDERSTANDING AS TO THE QUANTITY AND WEIGHT OF
THE SURPLUS MATERIAL DOES NOT ENTITLE YOU TO RELIEF. SEE LUMBRAZO V.
WOODRUFF, 175 N.E. 525, 75 A.L.R. 1017; AND HOOVER V. UTAH NURSERY
COMPANY, 7 F.2D 270.
WE TURN NOW TO THE QUESTION WHETHER THE DELIVERY OF 133,597 UNITS
UNDER THE CONTRACT CAN BE CONSIDERED AS APPROXIMATELY 144,889.
GENERALLY, WHERE A CONTRACT PROVIDES FOR THE FURNISHING OF A SPECIFIED
QUANTITY OF SUPPLIES, MATERIALS, ETC., SUBJECT TO THE QUALIFYING WORDS
SUCH AS "MORE OR LESS," "ABOUT," "APPROXIMATELY," AND THE LIKE, AND
THERE IS NO SUPPLEMENTAL LANGUAGE THEREIN FROM WHICH IT MIGHT BE
INFERRED THAT THE PARTIES DID NOT INTEND TO BE BOUND BY THE QUANTITY
SPECIFIED, THE QUALIFYING WORDS WILL EXCUSE ONLY MINOR OR ACCIDENTAL
VARIATIONS IN QUANTITY, SUCH AS MAY ARISE FROM SLIGHT AND UNIMPORTANT
EXCESSES OR DEFICIENCIES IN NUMBER, MEASURE AND WEIGHT. 15 COMP. GEN.
386; 19 ID. 599. WHERE, HOWEVER, AS IN THE PRESENT CASE, THE
QUALIFYING WORDS ARE SUBJECT TO FURTHER STIPULATIONS AND CONDITIONS,
NEITHER THE DESIGNATED QUANTITY NOR SUCH QUANTITY WITH SLIGHT VARIATIONS
WILL BE REGARDED AS CONTROLLING. BRAWLEY V. UNITED STATES, 96 U.S.
168; MORRIS AND CUMMINGS DREDGING CO. V. UNITED STATES, 78 C.CLS. 511,
517; 38 COMP. GEN. 119, 122.
ON THE BASIS OF THE FACTS AND EVIDENCE PRESENTLY OF RECORD, THERE
APPEARS TO BE NO LEGAL BASIS FOR AUTHORIZING A REFUND OF ANY PART OF THE
PURCHASE PRICE, OR FOR AUTHORIZING ANY ADJUSTMENT WHATEVER IN THE PRICE
FIXED IN THE CONTRACT FOR THE MATERIAL INVOLVED. ACCORDINGLY, THE
SETTLEMENT OF APRIL 29, 1959, IS SUSTAINED.
B-140342, AUG. 5, 1959
TO MR. LEMUEL A. GARRISON, SUPERINTENDENT, YELLOWSTONE NATIONAL PARK,
DEPARTMENT OF THE NTERIOR:
REFERENCE IS MADE TO YOUR LETTER OF JULY 27, 1959, FILE D22 391 MCL,
REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO AN
ERROR ALLEGED BY MCLAUGHLIN CONSTRUCTION COMPANY TO HAVE BEEN MADE IN
ITS BID SUBMITTED IN RESPONSE TO YOUR INVITATION FOR BIDS FOR GRADING
AND DRAINAGE OF CAMPGROUND ROADS AND PARKING AREAS AT GRANT VILLAGE,
YELLOWSTONE NATIONAL PARK, WYOMING.
IN RESPONSE TO THE INVITATION, THREE BIDS WERE SUBMITTED ON THE
APPROXIMATE QUANTITIES OF 27 ITEMS OF WORK, OR IN THE TOTAL OF
$105,543.50, $159,458, AND $193,734.50. THE GOVERNMENT ESTIMATE FOR THE
WORK WAS IN THE AMOUNT OF $185,000. UPON THE OPENING OF BIDS ON JULY
16, 1959, A REPRESENTATIVE OF MCLAUGHLIN CONSTRUCTION COMPANY, WHO WAS
THE LOW BIDDER, STATED THAT HE WOULD CHECK THE AMOUNTS BID FOR THE
VARIOUS ITEMS. BY LETTER DATED JULY 20, 1959, THE LOW BIDDER SUBMITTED
THE WORKSHEETS USED IN PREPARING ITS BID AND EXPLAINED HOW THE ALLEGED
ERROR OCCURRED. IT IS STATED THAT ONE PERSON STARTED THE PREPARATION OF
THE ESTIMATE BUT DID NOT FINISH IT ON ACCOUNT OF BEING CALLED AWAY ON
BUSINESS. THE PERSON STARTING THE ESTIMATE SHEETS TRANSFERRED THE
DIRECT COSTS OF $95,232 TO A TABULATION SHEET AND THE DIRECT COSTS
WERE SHOWN IN A COLUMN HEADED ,INDIRECT JOB COSTS APPORTIONED" WHICH THE
SECOND PARTY USED AS A BASIS FOR THE BID BY ADDING APPROXIMATELY 10
PERCENT FOR PROFIT TO THE AMOUNTS OF THE VARIOUS ITEMS. HOWEVER, THE
AMOUNT OF $38,905 SHOWN ON A TABULATION SHEET AS INDIRECT COSTS HAD NOT
BEEN ADDED TO THE AMOUNT OF $95,232 ITEMIZED ON THE DIRECT COST SHEET.
IT APPEARS THAT AWARD HAS NOT BEEN MADE IN THIS CASE. WE HAVE STATED
ON NUMEROUS OCCASIONS THAT NO RELIEF MAY BE GRANTED FOR A UNILATERAL
ERROR. HOWEVER, AN EXCEPTION TO THIS RULE EXISTS WHERE THE ERROR IS
ALLEGED BEFORE AWARD AND THE BIDDER SUBMITS EVIDENCE WHICH SUPPORTS HIS
CONTENTION AND AS TO WHICH THERE IS NO REASONABLE GROUND FOR DOUBT.
UNDER SUCH CIRCUMSTANCES A BID CANNOT BE ACCEPTED IN GOOD FAITH SO AS TO
CONSUMMATE A VALID AND BINDING CONTRACT. SEE 36 COMP. GEN. 441. THE
EVIDENCE SUBMITTED IN THIS CASE MUST BE REGARDED AS ESTABLISHING THE
FACT THAT AN ERROR WAS MADE IN THE BID AS ALLEGED. THERE IS SOME DOUBT,
HOWEVER, AS TO THE AMOUNT THE BIDDER ACTUALLY INTENDED TO BID AND, IN
SUCH CASES, IT HAS BEEN OUR POSITION THAT CORRECTION OF A BID SHOULD NOT
BE ALLOWED.
ACCORDINGLY, YOU ARE ADVISED THAT THE BID OF MCLAUGHLIN CONSTRUCTION
COMPANY SHOULD BE DISREGARDED IN MAKING AWARD.
B-90580, AUG. 5, 1959
TO MR. CIPRIANO PORTELLO:
REFERENCE IS MADE TO YOUR LETTER OF APRIL 23, 1959, ADDRESSED TO THE
UNITED STATES CIVIL SERVICE COMMISSION, AND FORWARDED TO THIS OFFICE BY
THE NAVY FINANCE CENTER, CLEVELAND 14, OHIO, WHEREIN YOU REQUEST THAT
PAYMENT OF YOUR PENSION AS A RETIRED MEMBER, UNITED STATES NAVY, BE
RESUMED. YOU STATE, IN EFFECT, THAT, BECAUSE YOU ARE OLD, SICKLY AND
WITH NO MEANS OF LIVELIHOOD, YOUR CLAIM FOR RETIRED PAY SHOULD BE
ALLOWED IN JUSTICE AND EQUITY. YOU ALSO STATE THAT YOU ARE ENCLOSING A
COPY OF YOUR "PARDON" PAPER AS EVIDENCE THAT YOU HAVE NOT DONE ANYTHING
WRONG TO THE ARMED FORCES OF THE PHILIPPINES AND TO THE REPUBLIC OF THE
PHILIPPINES.
THE RECORDS OF THIS OFFICE DISCLOSE THAT YOUR CLAIM FOR THE PROCEEDS
OF RETIRED PAY CHECKS FOR THE MONTHS OF NOVEMBER AND DECEMBER 1941, AND
FOR RETIRED PAY FOR THE PERIOD BEGINNING JANUARY 1, 1942, AS NATIVE
MACHINIST'S MATE, SECOND CLASS, UNITED STATES NAVY, RETIRED, WAS
DISALLOWED BY OFFICE SETTLEMENT DATED JULY 30, 1950, SUBSTANTIALLY FOR
THE REASON THAT THE RECORD INDICATED THAT YOU JOINED AND SERVED THE
ENEMY JAPANESE AS A MOTOR LAUNCH OPERATOR FOR THE JAPANESE NAVY IN OR
ABOUT 1942 TO 1945 AND THAT BY REASON OF SUCH TREASONABLE ACT YOU WERE
PRECLUDED FROM RECEIVING ANY RETIRED PAY SUBSEQUENT TO JANUARY 1, 1942,
INCIDENT TO YOUR STATUS OF A RETIRED MAN OF THE UNITED STATES NAVY.
SUCH SETTLEMENT ALSO STATED THAT, WHILE IT WOULD APPEAR THAT YOU MAY
HAVE A RIGHT TO ANY UNPAID RETIRED PAY FOR THE PERIODS PRIOR TO 1942,
THE RECORDS DISCLOSE THAT YOU WERE IN RECEIPT OF A $500 PARTIAL PAYMENT
ON MAY 2, 1945, BY MOBILE SETTLEMENT NO. 1 IN THE PHILIPPINES, WHICH
AMOUNT WOULD GREATLY EXCEED ANY RETIRED PAY WHICH MAY BE DUE YOU FOR
SUCH PRIOR
PERIOD.
THE DISALLOWANCE OF YOUR CLAIM WAS SUSTAINED ON REVIEW BY THIS OFFICE
IN LETTER B-90580, DATED SEPTEMBER 15, 1952, WHEREIN IT WAS STATED, IN
PART, THAT:
"THE ACCOUNTING OFFICERS ARE NOT REQUIRED TO CERTIFY OR APPROVE FOR
PAYMENT CLAIMS IN WHICH THEY HAVE DOUBT AS TO THE VALIDITY OF THE CLAIM
OR THE LEGALITY OF THE PAYMENT, AND, IN THAT CONNECTION, IT IS NOT
NECESSARY TO DETERMINE AFFIRMATIVELY THAT THE CLAIM IS INVALID IN ORDER
TO DISALLOW IT. WHEN A CASE ARISES WITH RESPECT TO WHICH THERE IS NO
CONTROLLING JUDICIAL PRECEDENT, AND SUBSTANTIAL DOUBT EXISTS AS TO THE
ACTION WHICH A COURT OF COMPETENT JURISDICTION MIGHT TAKE THEREON, IT
HAS BEEN REGARDED AS THE DUTY OF THE ACCOUNTING OFFICERS TO RESOLVE THE
DOUBT IN FAVOR OF THE INTERPRETATION WHICH WILL BEST SERVE THE INTERESTS
OF THE UNITED STATES. SEE 18 COMP. GEN. 749. FURTHER, THE ESTABLISHED
RULE OF THE ACCOUNTING OFFICERS IN SUCH CASES IS TO DISALLOW THE ENTIRE
CLAIM, LEAVING THE CLAIMANT TO PURSUE HIS REMEDY IN A COURT OF COMPETENT
JURISDICTION, WHERE THE MATTER MAY BE DETERMINED ON PROPER EVIDENCE
UNDER OATH, SUBJECT TO CROSS EXAMINATION AND OTHER JUDICIAL PROCESSES,
AND LEAVING IT TO THE COURT TO DETERMINE THE MERITS OF THE ENTIRE
MATTER.'
SEE LONGWILL V. UNITED STATES, 17 C.CLS. 288, 291.
THE COPY OF THE "PARDON" TO WHICH YOU REFER IN YOUR LETTER WAS NOT
RECEIVED WITH YOUR LETTER AND THE DEPARTMENT OF THE NAVY ADVISES THAT
SUCH WAS NOT ENCLOSED. HOWEVER, IN THE PRESENTATION OF YOUR ORIGINAL
CLAIM YOU FURNISHED A TRUE COPY OF THE ORDER DATED FEBRUARY 17, 1948,
ISSUED BY THE FIRST DIVISION, PEOPLES COURT, REPUBLIC OF THE
PHILIPPINES, WHEREIN IT IS STATED, IN EFFECT, THAT BY VIRTUE OF REPUBLIC
OF THE PHILIPPINES PROCLAMATION NO. 51 (A PROCLAMATION GRANTING
AMNESTY), IT APPEARED YOU FELL WITHIN THE BENEFITS OF THE SAID AMNESTY
PROCLAMATION, AND DECLARED THAT YOU WERE ENTITLED TO THE GRANT OF
AMNESTY FOR THE OFFENSE CHARGED.
THE MATTER OF AMNESTY GRANTED IN YOUR CASE WAS CONSIDERED IN THE
SETTLEMENT OF YOUR CLAIM AND UPON REVIEW OF SUCH SETTLEMENT HERE. IN
OUR LETTER OF SEPTEMBER 15, 1952, YOU WERE ADVISED THAT, WHILE YOU WERE
RELIEVED OF ANY CRIMINAL LIABILITY FOR THE TREASONABLE OVERT ACTS OF
WHICH YOU WERE ACCUSED, A GRANT OF AMNESTY THEREFOR COULD HAVE NO
BEARING ON THE COMMISSION OF THE ACTS WHICH CONSTITUTED THE OFFENSE FOR
WHICH YOU STOOD ACCUSED. THE AUTHORITY OF OUR OFFICE UNDER SECTION 236,
REVISED STATUTES, AS AMENDED BY SECTION 305 OF THE BUDGET AND ACCOUNTING
ACT OF 1921, 42 STAT. 20, DOES NOT EXTEND TO CLAIMS BASED SOLELY ON
EQUITABLE OR MORAL OBLIGATION BUT MUST BE EXERCISED WITHIN THE
PROVISIONS OF APPLICABLE STATUTES.
IN THE LETTERS OF JULY 30, 1950, AND SEPTEMBER 15, 1952, MENTIONED
ABOVE, YOU WERE FULLY ADVISED AS TO THE REASONS WHY YOUR CLAIM COULD NOT
BE ALLOWED BY THIS OFFICE. SINCE YOUR PRESENT LETTER CONTAINS NO
INFORMATION NOT CONSIDERED WHEN THOSE LETTERS WERE WRITTEN, IT DOES NOT
WARRANT ANY REVISION OF OUR PRIOR ACTION ON YOUR CLAIM.
B-138616, AUG. 4, 1959
TO MISSOURI PACIFIC RAILROAD COMPANY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 4, 1959, WITH
ENCLOSURES, FILE 12-GC-67463, CONCERNING YOUR CLAIM FOR $73.98,
REPRESENTING AN AMOUNT THE DEPARTMENT OF AGRICULTURE WITHHELD FROM THE
TRANSPORTATION CHARGES DUE YOU ON YOUR BILL NO. 67463, TO COMPENSATE THE
GOVERNMENT FOR ONE CARTON CHECKED SHORT AT DESTINATION AND 13 CARTOONS
REJECTS FROM A CARLOAD SHIPMENT OF 2,400 CARTONS OF EXTRACTED HONEY.
THE SHIPMENT WAS TRANSPORTED IN NOVEMBER 1951, UNDER GOVERNMENT BILL OF
LADING A-1347840, FROM JOSEPHINE, TEXAS, TO NEW ORLEANS, LOUISIANA, WITH
A STOP-OFF FOR PARTIAL UNLOADING AT MONROE, LOUISIANA.
IN RESPONSE TO OUR REQUEST OF MAY 29, 1959, YOU HAVE SUBMITTED
DOCUMENTARY EVIDENCE WHICH TENDS TO ESTABLISH THAT YOUR CLAIM FOR THE
VALUE OF THE ONE CARTON OF HONEY ALLEGED TO HAVE BEEN SHORT AT
DESTINATION SHOULD BE ALLOWED.
THE NOTICE OF SUSPENSION, DATED JUNE 27, 1952, WHICH WAS SENT TO YOU
BY THE DEPARTMENT OF AGRICULTURE, SHOWS THAT THE VALUE OF THE HONEY WAS
"$0.17615" PER POUND, AND THAT ONE CARTON WEIGHED 30 POUNDS (SIX 5-POUND
PACKAGES IN EACH CARTON). THE VALUE OF ONE CARTON, THEREFORE, IS $5.28
(30 POUNDS AT ?17615) AND THAT AMOUNT WILL BE CERTIFIED FOR PAYMENT,
NOTICE OF WHICH WILL REACH YOU IN DUE COURSE.
B-140126, AUG. 4, 1959
TO THE SECRETARY OF AGRICULTURE:
BY REFERENCE FROM THE HONORABLE F. EDWARD HEBERT, HOUSE OF
REPRESENTATIVES, WE RECEIVED A COPY OF LETTER DATED JUNE 30, 1959, FROM
THE UNITED STATES CIVIL SERVICE COMMISSION TO HIM, CONCERNING THE
PROMOTIONS OF PRIVATE EDWARD BOBACK, FORT MYER, VIRGINIA, IN POSSIBLE
CONTRAVENTION OF THE SO-CALLED WHITTEN AMENDMENT, 5 U.S.C. 43, WHILE AN
EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE.
THE COMMISSION IN ITS LETTER TO REPRESENTATIVE HERBERT INFORMED HIM
THAT SUBJECT TO THE CONCURRENCE OF OUR OFFICE CONCERNING ANY PAY MATTERS
IN THE CASE, NO ADJUSTMENT OF THE PROMOTION ACTIONS OR RECOVERY OF
SALARY PAYMENTS IN THE CASE OF PRIVATE EDWARD BOBACK WOULD BE REQUIRED.
WE CONCUR IN THE COMMISSION'S VIEW AND ARE SO INFORMING YOU SO THAT
APPROPRIATE ADMINISTRATIVE ACTION MAY BE TAKEN TO CLOSE HIS CASE.
A COPY OF THIS LETTER IS BEING ENCLOSED WITH OUR LETTER TO
REPRESENTATIVE HERBERT.
B-140286, AUG. 4, 1959
TO MR. B. P. BELLPORT, REGIONAL DIRECTOR, BUREAU OF RECLAMATION:
REFERENCE IS MADE TO YOUR LETTER OF JULY 17, 1959, WITH ENCLOSURES,
REQUESTING OUR DECISION AS TO WHETHER THE BID OF HUMBOLDT WRECKING
CONTRACTORS MAY BE CONSIDERED FOR AWARD FOR WORK UNDER SPECIFICATIONS
NO. 200C-420, CEMETERY RELOCATION, TRINITY RESERVOIR AREA, CENTRAL
VALLEY PROJECT, CALIFORNIA.
THE RECORD INDICATES THAT HUMBOLDT WRECKING CONTRACTORS SUBMITTED THE
LOWEST BID FOR THE TWENTY-ONE ITEMS CALLED FOR IN THE SCHEDULE, AND THE
BASIS FOR YOUR REQUEST FOR A DECISION IN THIS MATTER ARISES OUT OF THE
FACT THAT THE LOW BIDDER FAILED TO INSERT UNIT PRICES FOR ITEMS 8 AND 19
AS REQUIRED BY THE SPECIFICATIONS, ALTHOUGH THE TOTALS FOR EACH OF THE
ITEMS WERE INCLUDED IN ITS BID.
ITEM 8 OF THE INVITATION REQUESTED BIDS FOR FURNISHING 4,000 FEET,
BOARD MEASURE, FOR ROUGH BOXES, BOTH THE UNIT PRICE AND THE TOTAL BID
PRICE TO BE SET FORTH IN THE BID. ITEM 19 CALLED FOR FURNISHING AND
ERECTING 1,050 LINEAR FEET OF CHAIN-LINK FENCE, BOTH THE UNIT PRICE AND
THE TOTAL BID PRICE TO BE STATED. THE LOW BIDDER FAILED TO INSERT THE
UNIT PRICES FOR THESE TWO ITEMS. BY LETTER OF JULY 13, 1959, HUMBOLDT
WRECKING CONTRACTORS ADVISED THAT THEY WERE "A LITTLE CONFUSED" AS TO
ITEM 8 AND FIGURED THEIR BID PRICE TO "SO MUCH PER BOX.' THEY STATED,
HOWEVER, THAT THE UNIT PRICE AS TO THIS ITEM SHOULD READ $517.50---
MEANING, OF COURSE, PER THOUSAND FEET. AS TO ITEM 19, FOR FURNISHING
AND ERECTING 1,050 LINEAR FEET OF CHAIN-INK FENCE, THE LOW BIDDER GAVE
NO EXPLANATION FOR FAILURE TO INSERT A UNIT PRICE, IT BEING MERELY
STATED IN THE LETTER OF JULY 13, 1959, THAT THE UNIT PRICE SHOULD READ
"$2.85.7"--- INTERPRETED BY YOU AND CORRECTLY SO, WE THINK, AS $2.857.
RESPECTING SUCH UNIT BID PRICE YOU POINT OUT THAT THE PRICE OF $2,857
WHEN MULTIPLIED BY 1,050 LINEAR FEET RESULTS IN THE AMOUNT OF
$2,999.85--- NOT THE AMOUNT OF $3,000 SHOWN IN THE BID.
WHILE THE INVITATION SHOWS DEFINITE QUANTITIES OF WORK OR MATERIALS
REQUIRED IN CONNECTION WITH THE TWENTY-ONE ITEMS INVOLVED, IT IS ASSUMED
THAT THEY ARE ESTIMATED QUANTITIES. THAT IS TO SAY, IF THE WORK TO BE
PERFORMED OR THE MATERIALS TO BE FURNISHED SHOULD BE LESS THAN
INDICATED, THEN PAYMENTS WOULD BE MADE AT THE UNIT RATE. IF THIS
ASSUMPTION IS CORRECT, THE NECESSITY FOR STATED UNIT PRICES IS OBVIOUS.
HOWEVER, IT WOULD APPEAR THAT UNIT PRICES ARE UNNECESSARY IN CONNECTION
WITH THE EVALUATION OF THE BIDS FOR THE PURPOSE OF AWARDING A CONTRACT,
SO LONG AS TOTAL PRICES PER ITEM ARE SHOWN. UNDER THE FACTS DISCLOSED
BY THE RECORD IN THIS CASE, INCLUDING THE FACT THAT NO BID FOR LESS THAN
THE TOTAL WORK WILL BE CONSIDERED, IT APPEARS THAT THE TOTAL BID PRICE
OF $36,725--- CORRECTED TO $35,725 BY REASON OF AN ERROR IN THE
EXTENSION OF ITEM 2--- IS THE BID PRICE FOR CONSIDERATION IN MAKING AN
AWARD. IN ANY EVENT, THE REQUIRED UNIT PRICES HAVING BEEN SUPPLIED IN
THE LETTER OF JULY 13, 1959, THE FAILURE TO INCLUDE THEM IN THE ORIGINAL
BID MAY BE CONSIDERED AS AN INFORMALITY WHICH MAY BE WAIVED AS IN THE
INTERESTS OF THE UNITED STATES. IF A CONTRACT IN THIS CASE IS AWARDED
TO HUMBOLDT WRECKING CONTRACTORS, AND SHOULD A QUESTION ARISE AS TO
PAYMENT UNDER ITEMS 8 AND 19, IT APPEARS THAT THE CONTRACTOR WOULD NOT
BE IN A POSITION TO CLAIM PAYMENT AT A RATE DIFFERENT FROM THAT STATED
IN THE LETTER OF JULY 13, 1959.
B-135772, AUG. 3, 1959
TO GULF MOBILE AND OHIO RAILROAD COMPANY:
REFERENCE IS MADE TO YOUR REQUEST, PER FILE NUMBER GOVT.
G-37752-CL-24, FOR REVIEW OF THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM
FOR $105.63, REPRESENTING FIFTY PERCENT OF THE VALUE OF ONE BOX OF
AIRPLANE WHEELS LOST FROM A SHIPMENT OF GOVERNMENT PROPERTY MOVING FROM
THE NEW YORK PORT OF EMBARKATION TO BROOKLEY AIR FORCE BASE, ALABAMA, IN
JANUARY 1952, UNDER GOVERNMENT BILL OF LADING NO. WW-9558466.
THE RECORD IN THE INSTANT CASE SHOWS THAT THE LESS-THAN-CARLOAD
SHIPMENT OF 82 BOXES, INCLUDING ONE BOX CONTAINING AIRPLANE WHEELS,
WEIGHING 130 POUNDS, WAS RECEIVED BY THE INITIAL CARRIER, BUSH
TERMINAL RAILWAY COMPANY, ON JANUARY 10, 1952. THE SHIPPING
INSTRUCTIONS ON THE BILL OF LADING AUTHORIZED SHIPMENT VIA "BT AND NEC.
CONN. LINES" AND BY "PKG CAR IF AVAILABLE.' THE SHIPMENT APPARENTLY WAS
LOADED INITIALLY IN A FERRY CAR, AND ALTHOUGH THE BILL OF LADING SHOWS
THE INITIAL CAR NUMBER TO HAVE BEEN ACL 14290, THE SHIPMENT SEEMS TO
HAVE BEEN TRANSFERRED, WHILE EN ROUTE TO THE BILLED DESTINATION, TO CAR
CB AND Q 16970.
WHEN UNLOADED AT DESTINATION, THE SHIPMENT CHECKED SHORT "ONE (1) BOX
WHEELS AIRPLANE WT. 130 LBS., TALLY R-503173, ST 52-09616 CONTAINING ONE
(1) EACH 4109-530402M WHEEL ASSY. AT $203.90--- $20390. 130 LBS.
$203.90," AS NOTED ON THE REVERSE OF THE BILL OF LADING. THE INDICATED
AMOUNT, PLUS UNEARNED FREIGHT, WAD DEDUCTED FROM YOUR BILL G-37752, TO
REIMBURSE THE GOVERNMENT FOR THIS LOSS. YOUR CLAIM FOR $105.63, TREATED
HERE AS AN OFFER TO SETTLE THIS MATTER ON A FIFTY PERCENT BASIS, WAS
DISALLOWED FOR THE REASON THAT YOU PRESENTED NOTHING TO OVERCOME THE
PRESUMPTION OF NEGLIGENCE ARISING FROM YOUR FAILURE TO DELIVER THE BOX
OF AIRPLANE WHEELS IN GOOD ORDER AND CONDITION AND, THEREFORE, THERE
APPEARED TO BE NO BASIS FOR SETTLEMENT FOR LESS THAN THE FULL VALUE OF
THE LOST ARTICLES.
YOUR PRESENT CONTENTION APPEARS TO BE THAT YOU DO NOT CONSIDER YOUR
CLAIM AS BEING ON "A COMPROMISE BASIS AS IT HAS BEEN A LONG ESTABLISHED
FACT, WHEN THE RESPONSIBILITY FOR LOSS CANNOT BE DETERMINED, THAT
CARRIERS ARE ONLY LIABLE FOR FIFTY PERCENT.'
IN CASES OF DOUBTFUL LIABILITY, AND WHERE THE RECORD DOES NOT CLEARLY
ESTABLISH THE MEASURE OF DAMAGES, THERE MAY EXIST A COMMONLY ACCEPTED
AREA FOR AGREED SETTLEMENTS. HOWEVER, IN INSTANCES WHERE, AS HERE, THE
RECORD SHOWS DELIVERY TO THE INITIAL CARRIER, AND FAILURE TO DELIVER AT
DESTINATION, THERE IS CLEARLY PRESENTED A CASE OF CARRIER LIABILITY, AND
WE ARE NOT APPRISED OF ANY RULE OF LAW THAT REQUIRES ADJUSTMENT ON ANY
BASIS OTHER THAN FULL VALUE. WHEN THE GOVERNMENT, AS CONSIGNEE AND
HOLDER OF THE BILL OF LADING, DETERMINED THAT THE BOX OF AIRPLANE WHEELS
HAD NOT BEEN DELIVERED, THE PRESUMPTION AROSE THAT THE BOX HAD BEEN LOST
BY REASON OF THE NEGLIGENCE OF THE DELIVERING CARRIER OR ITS AGENTS.
THE BURDEN OF PROOF THAT THE LOSS RESULTED FROM SOME CAUSE FOR WHICH THE
CARRIER WAS NOT RESPONSIBLE IN LAW OR BY CONTRACT WAS THEN CAST UPON THE
CARRIER. GALVESTON, HARRISBURG AND SAN ANTONIO RAILWAY CO. V. WALLACE,
223 U.S. 481.
THE INSTANT MATTER IS NOT, AS YOU TERM IT,"AN UNDETERMINED LOSS.' THE
RECORD IS CLEAR THAT 82 BOXES, INCLUDING ONE BOX OF AIRPLANE WHEELS WERE
DELIVERED TO THE INITIAL CARRIER, AND YOUR WAREHOUSE FOREMAN AT MOBILE,
ALABAMA, ADMITS THAT YOUR COMPANY RECEIVED, AND STATES THAT THERE WAS
RELOADED INTO ANOTHER CAR, 82 BOXES. ONLY 81 BOXES ARRIVED AT
DESTINATION. THIS IS CLEARLY NOT A CASE OF TALLY ERROR, WITH EQUAL
OPPORTUNITY FOR ERROR IN COUNTING A NUMBER OF IDENTICAL ITEMS AT EITHER
ORIGIN OR DESTINATION. ONLY ONE BOX OF AIRPLANE WHEELS WAS SHIPPED, AND
THE ADMINISTRATIVE OFFICE REPORTS THAT THE ONE BOX WAS NOT DELIVERED.
INASMUCH AS YOU HAVE PRESENTED NO EVIDENCE TO OVERCOME THE PRESUMPTION
OF NEGLIGENCE ARISING FROM YOUR FAILURE TO DELIVER, THE DEDUCTION ACTION
BY THE ADMINISTRATIVE OFFICE APPEARS TO HAVE BEEN PROPER. ACCORDINGLY,
THE SETTLEMENT DISALLOWING YOUR CLAIM APPEARS TO HAVE BEEN CORRECT, AND
IS HEREBY SUSTAINED.
B-137444, AUG. 3, 1959
TO CENTRAL OF GEORGIA RAILWAY COMPANY:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 19, 1959, FILE N-62117-G-A,
REQUESTING THE FURTHER CONSIDERATION OF OUR DECISIONS OF JANUARY 28,
1959, AND JUNE 10, 1959, B-137444, WHICH SUSTAINED THE DISALLOWANCE OF
YOUR CLAIM FOR $921.94. THE AMOUNT NOW CLAIMED BY YOU IS IN ADDITION TO
THE AMOUNT ORIGINALLY PAID TO YOU FOR THE TRANSPORTATION OF THESE USED
TRUCKS FROM NEBO, CALIFORNIA, TO AUGUSTA, GEORGIA, IN SEPTEMBER 1952.
YOUR PRESENT SUBMISSION QUOTES AT LENGTH FROM THE CASE OF UNITED
STATES V. MISSOURI-KANSAS-TEXAS R. CO., 194 F.2D 777, WHICH YOU URGE
SUPPORTS YOUR ASSERTION THAT ITEM 5745 OF TRANS-CONTINENTAL FREIGHT
BUREAU TARIFF NO. 2-R APPLIES ONLY ON "BRIDGE BUILDERS, CONTRACTORS OR
GRADERS OUTFITS.' YOU ASSERT FURTHER, THAT OUR DECISION FAILED TO
COMPARE THIS ITEM WITH THE COMMODITY DESCRIPTION FOR FREIGHT AUTOMOBILES
IN ITEM 6820 OF THAT TARIFF AND URGE THAT THE SETUP OF THIS ITEM DOES
NOT WARRANT THE CONCLUSION REACHED BY OUR OFFICE.
YOUR LETTER PRESENTS NOTHING WHICH HAS NOT BEEN CONSIDERED PREVIOUSLY
AT YOUR REQUEST IN CONNECTION WITH THE RECORD OF THE PAYMENT OF THE
TRANSPORTATION CHARGES ON THIS SHIPMENT. FURTHER, NO REASON HAS BEEN
FOUND FOR CHARGING OUR CONCLUSION WITH RESPECT TO THE APPLICATION OF
THIS TARIFF ITEM. ACCORDINGLY, OUR PRIOR DECISIONS ARE AFFIRMED AND YOU
ARE INFORMED THAT THIS MATTER MUST BE CONSIDERED BY THIS OFFICE AS
CLOSED AND THE RECORD WILL BE FILED WITHOUT FURTHER ACTION.
B-139441, AUG. 3, 1959
TO MRS. FRANCES O. BALDES HANKS:
ON APRIL 1, 1959, YOU REQUESTED RECONSIDERATION OF THE ACTION TAKEN
RESULTING IN THE DEDUCTION OF $124.24, FROM YOUR CIVIL SERVICE
RETIREMENT FUND ACCOUNT IN SATISFACTION OF THE INDEBTEDNESS WITH WHICH
YOU WERE CHARGED INCIDENT TO THE SHIPMENT OF YOUR HOUSEHOLD GOODS FROM
NORFOLK, VIRGINIA, TO ALBUQUERQUE, NEW MEXICO.
YOU WERE ADVISED IN NUMEROUS LETTERS FROM THE DEPARTMENT OF THE ARMY
AND OUR CLAIMS DIVISION OF THE BASIS FOR THE INDEBTEDNESS, THAT IS, THAT
YOU WERE AUTHORIZED TO SHIP 3,125 POUNDS AT GOVERNMENT EXPENSE AND THE
RECORD SHOWS THAT YOUR HOUSEHOLD GOODS WEIGHED 1,873 POUNDS IN EXCESS OF
THE AUTHORIZED LIMIT. THE HOUSEHOLD GOODS WERE SHIPPED FROM NORFOLK,
VIRGINIA, BY TWO SEPARATE BILLS OF OF LADING, BOTH ISSUED ON JANUARY 5,
1955, EACH FOR TWO BOXES--- ONE SHIPMENT WEIGHING 3,400 POUNDS AND THE
OTHER 1,598 POUNDS. THE 3,400 POUND SHIPMENT WAS CONSIGNED TO MRS. FRED
PETTIT, 1111 RIDGECREST DRIVE, S.E., ALBUQUERQUE, AND THE 1,598 POUND
SHIPMENT TO SPRINGER TRANSFER COMPANY AT ALBUQUERQUE. YOU CONCEDE
RECEIPT OF THE 3,400 POUND SHIPMENT BUT YOU DENY SHIPMENT OR RECEIPT OF
THE 1,598 POUND SHIPMENT. YOU FURTHER ALLEGE THAT YOU PAID AN EXCESS
SHIPPING CHARGE AT KIRTLAND AIR FORCE BASE, ALBUQUERQUE, ON 275 POUNDS
(THE DIFFERENCE BETWEEN YOUR AUTHORIZATION OF 3,125 POUNDS AND THE 3,400
POUNDS WHICH YOU CONCEDE HAVING RECEIVED).
THE RECORD CONTAINS THE ORIGINAL GOVERNMENT BILL OF LADING FOR THE
3,400 POUND SHIPMENT BEARING YOUR SIGNATURE AS HAVING RECEIVED THAT
SHIPMENT. THE ORIGINAL OF THE OTHER BILL OF LADING FOR THE 1,598 POUND
SHIPMENT WAS LOST BEFORE THE SHIPMENT WAS DELIVERED. HOWEVER, THE
UNIVERSAL CARLOADING AND DISTRIBUTING COMPANY, INC., HAS FURNISHED FROM
ITS FILES A CERTIFIED TRUE COPY OF A FREIGHT BILL CONSTITUTING A
DELIVERY RECEIPT WHICH ALSO BEARS YOUR SIGNATURE AS HAVING RECEIVED THE
SHIPMENT OF 1,598 POUNDS. WE ARE FORWARDING A COPY OF EACH OF THE
DOCUMENTS BEARING YOUR SIGNATURE.
WE DIRECT YOUR ATTENTION TO THE FACT THAT THE WEIGHTS OF THE TWO
SHIPMENTS WERE GROSS WEIGHTS WHICH INCLUDED PACKING MATERIALS AND
CRATING. WE HAVE OBSERVED IN SOME INSTANCES OF OVERSEAS SHIPMENTS THAT
THE WEIGHT OF THE PACKING AND CRATING--- WHICH NECESSARILY MUST BE
SUBSTANTIAL--- EXCEEDED THE NET WEIGHT OF THE HOUSEHOLD EFFECTS.
PERHAPS, THAT IS WHY YOU FEEL THAT THE WEIGHT OF THE SHIPMENTS EXCEEDED
THE AMOUNT OF GOODS YOU OWNED AT THE TIME.
CONCERNING YOUR ALLEGATION THAT YOU PAID EXCESS CHARGES AT KIRTLAND
AIR FORCE BASE ON 275 POUNDS OF THE 3,400 POUND SHIPMENT, WE MUST POINT
OUT THAT THE OFFICIAL RECORD CONTAINS NO REFERENCE TO SUCH A PAYMENT.
IF YOU HAVE A RECEIPT OR ANY OTHER PAPER EVIDENCING THIS PAYMENT WE
SUGGEST THAT YOU FORWARD IT HERE IN ORDER THAT SUCH AMOUNT MAY BE
REFUNDED TO YOU.
THEREFORE, AFTER THOROUGH REVIEW OF THE RECORDS INVOLVED WE MUST
CONCLUDE THAT THE CHARGE AGAINST YOU IN THE AMOUNT OF $124.24 WAS
CORRECT (WITH THE QUALIFICATION CONCERNING THE ALLEGED PAYMENT OF EXCESS
CHARGES ON 275 POUNDS, MENTIONED ABOVE) AND THAT THE ACTION OF THE
DEPARTMENT OF THE ARMY AND THE UNITED STATES CIVIL SERVICE COMMISSION IN
RECOVERING THE DEBT FROM YOUR RETIREMENT FUND ACCOUNT WAS PROPER.
B-139489, AUG. 3, 1959
TO CALFEE, FOGG, MCCHORD AND HALTER:
FURTHER REFERENCE IS MADE TO OUR LETTER OF MAY 13, 1959, RELATIVE TO
THE JOINT PROTEST OF YOUR CLIENTS, LUCAS MACHINE DIVISION OF THE NEW
BRITAIN MACHINE COMPANY AND DELAWARE VALLEY MACHINERY, INC., AGAINST THE
AWARD OF A CONTRACT TO A HIGHER BIDDER UNDER INVITATION NO.
IFB-156-237-59 BY PROCUREMENT OFFICIALS OF THE SUPPLY DEPARTMENT, NAVAL
AIR MATERIAL CENTER, NAVAL CENTER, PHILADELPHIA, PENNSYLVANIA. RECEIPT
IS ALSO ACKNOWLEDGED OF YOUR LETTER OF JUNE 8, 1959.
THE INVITATION SOLICITED BIDS FOR FURNISHING TWO BORING AND MILLING
MACHINES IN ACCORDANCE WITH BUREAU OF AERONAUTICS INDUSTRIAL RESERVE
SPECIFICATION NO. 58-25 AND OTHER REQUIREMENTS ATTACHED TO THE
INVITATION FOR BIDS. PROSPECTIVE BIDDERS WERE ADVISED IN THE INVITATION
THAT DELIVERY OF THE TWO MACHINES WAS REQUIRED TO BE MADE WITHIN EIGHT
WEEKS FROM THE DATE OF THE CONTRACT. BIDS WERE OPENED ON FEBRUARY 25,
1959. IT IS REPORTED THAT, PRIOR TO THE OPENING OF BIDS, THERE HAD BEEN
RECEIVED A LETTER DATED FEBRUARY 3, 1959, FROM DELAWARE VALLEY
MACHINERY, INC., REQUESTING CERTAIN CHANGES IN THE
SPECIFICATIONS, PARTICULARLY PARAGRAPH 3.27.1, DEPTH CONTROL, SO THAT
IT COULD SUBMIT A BID WITHOUT EXCEPTION TO THE SPECIFICATIONS. IN
RESPONSE TO THIS REQUEST, THE PROCURING AGENCY ADVISED THAT THE CHANGES
IN THE SPECIFICATIONS REQUESTED REQUIREMENTS AND THAT, THEREFORE, THE
SUGGESTED CHANGES COULD NOT BE CONSIDERED FOR THE PROCUREMENT IN
QUESTION. SUBSEQUENTLY, DELAWARE VALLEY MACHINERY, INC., SUBMITTED ITS
BID OFFERING TO FURNISH TWO LUCAS MODEL NO. 41B48'S HORIZONTAL BORING
AND MILLING MACHINES AT THE UNIT PRICES SET FORTH THEREIN. WITH ITS BID
THE CORPORATION SUBMITTED A LETTER DATED FEBRUARY 24, 1959, IN WHICH IT
POINTED OUT THAT IT COULD NOT COMPLY WITH THE REQUIREMENTS OF PARAGRAPH
3.27.1, DEPTH CONTROL, OF THE SPECIFICATIONS, WHICH CALLED FOR A
,ROTATING TURRET BAR," FOR THE REASON THAT THIS ATTACHMENT WAS A
PATENTED FEATURE OFFERED BY THE DEVLIEG MACHINE COMPANY AND, THEREFORE,
OBVIOUSLY COULD NOT BE OFFERED BY ANY OTHER MANUFACTURER. THE BID OF
DELAWARE VALLEY MACHINERY, INC., WAS LOW BUT WAS REJECTED AS NOT
CONFORMING TO THE SPECIFICATIONS AND AWARD WAS MADE ON APRIL 20, 1959,
TO THE ONLY OTHER BIDDER, W. E. SHIPLEY MACHINERY COMPANY, WHO OFFERED
TO FURNISH TWO DEVLIEG NO. 3P-48, SPIRAMATIC JIG MILLS, AT THE UNIT
PRICES SET FORTH IN ITS BID. IT IS REPORTED THAT ONE OF THE TWO
MACHINES WAS SHIPPED BY THE SUCCESSFUL BIDDER ON MAY 19, 1959.
IN THEIR LETTER OF MAY 6, 1959, TO OUR OFFICE, LUCAS MACHINE DIVISION
OF THE NEW BRITAIN MACHINE COMPANY AND DELAWARE VALLEY MACHINERY, INC.,
CONTEND THAT THE LUCAS BORING MACHINE CAN AND
DOES ACCOMPLISH THE NECESSARY END RESULT CALLED FOR IN PARAGRAPH
3.27.1 OF THE SPECIFICATIONS AND THAT THEIR BID SHOULD NOT BEEN REJECTED
BECAUSE THE MACHINE OFFERED BY THEM DID NOT HAVE THE REQUIRED ROTATING
TURRET BAR.
IN THE ADMINISTRATIVE REPORT OF MAY 14, 1959, IT IS STATED THAT THE
BID OF DELAWARE VALLEY MACHINERY, INC., WAS REJECTED FOR THE FOLLOWING
REASONS:
"12. TECHNICAL ANALYSIS OF THE EQUIPMENT OFFERED BY DELAWARE VALLEY
DISCLOSED THAT THE LUCAS MACHINES WHICH WERE OFFERED DID NOT CONFORM TO
THE ESSENTIAL REQUIREMENTS OF THE SPECIFICATION, AND THIS BID WAS
THEREFORE CONSIDERED TO BE NON-RESPONSIVE. SOME OF THE SIGNIFICANT
DEVIATIONS FROM THE SPECIFICATION REQUIREMENT ARE DETAILED BELOW:
"/A) SPEC. PARAGRAPH 3.27.1--- DEPTH CONTROL: THE MECHANISM SHALL BE
EQUIPPED WITH A BAR FEED DEPTH CONTROL ATTACHMENT CONSISTING OF A
ROTATING TURRET BAR CARRYING AT LEAST TWELVE ADJUSTABLE STOPS WHICH CAN
BE SET TO TRIP THE BAR FEED AUTOMATICALLY AT ANY DESIRED POSITION. THE
DEPTH CONTROL SHALL PERMIT ACCURATE DUPLICATION OF PRODUCTION WORK
INVOLVING MULTIPLE COUNTERBORING, FACING OR BACK FACING OPERATIONS TO
CLOSE LIMITS.
"DELAWARE VALLEY BID: THE LUCAS MACHINE OFFERED HAS A PROGRAM BAR
WITH 6 SLOTS, HAVING TWO ABUTMENTS FOR EACH SLOT. ONE ABUTMENT IN EACH
SLOT IS USED FOR DEPTH BORING IN THE OUTFEED DIRECTION AND THE OTHER FOR
BACK SPOT FACING IN THE INFEE DIRECTION.
"THE PROGRAM BAR LIMITS THE CAPACITY OF THE MACHINE BY PROVIDING ONLY
6 STOPS WHICH CAN BE POSITIONED FOR INFEE, AND 6 STOPS FOR OUTFEED.
THIS WAS CONFIRMED BY MR. VILLWOCK OF LUCAS MACHINE COMPANY DURING
CONFERENCE AT NAVAL AIR MATERIAL CENTER PURCHASE DIVISION ON 27 APRIL
1959, AND IN DELAWARE VALLEY LETTER OF 3 FEBRUARY 1959, ENCLOSURE (2).
IT WILL ALSO BE NOTED THAT DELAWARE VALLEY, IN THEIR LETTER OF 24
FEBRUARY 1959, ENCLOSURE (4), STATED THAT THE MACHINE THEY OFFERED
"MEETS ALL OTHER MINIMUM AND MAXIMUM DETAILS REQUESTED IN THE
SPECIFICATIONS"
"COMMENT BY NAVAL AIR MATERIAL CENTER TECHNICAL DEPARTMENT: ROTATING
TURRET STOPS HAVE BEEN USED SUCCESSFULLY FOR MANY YEARS ON ENGINE
LATHES, TURRET LATHES, DRILL PRESSES, BORING AND MILLING MACHINES. THEY
PROVIDE A SIMPLE ACCURATE, TROUBLE-FREE MEANS FOR OBTAINING THE DESIRED
RESULTS BY INHERENT DESIGN OF CONSTANTLY MAINTAINING AN EQUALLY SPACED
RELATIONSHIP BETWEEN THE STOP ELEMENTS AND ITS CENTRAL SUPPORT.
"/B) SPEC. PARAGRAPH 3.8--- BED: THE BED-WAYS SHALL BE OF SUFFICIENT
DIMENSIONS TO FULLY SUPPORT THE SADDLE AND TABLE, AND MAINTAIN POSITION
REGARDLESS OF WEIGHT OF WORKPIECE WHEN TABLE IS AT ANY POINT WITHIN ITS
COMPLETE TRAVEL RANGE.
"DELAWARE VALLEY BID: THE LUCAS MACHINES OFFERED DO NOT PROVIDE FULL
TABLE SUPPORT. THEIR MACHINE HAS A TABLE 50 INCHES LONG, WHICH OPERATES
ON WAYS 78 INCHES LONG. IN ORDER TO OBTAIN FULL USE OF THE TABLE SIZE
IT WILL OVERHANG THE WAYS AT LEAST 11 INCHES AT EACH END OF ITS TRAVEL.
THIS PROVIDES APPROXIMATELY 20 PERCENT LESS THAN FULL SUPPORT OVER THE
WAYS
"/C) SPEC. PARAGRAPH 3.9--- SADDLE: THE SADDLE SHALL HAVE SLIDE WAYS
OF SUCH PROPORTIONS AS TO ASSURE ADEQUATE SUPPORT AND ACCURATE TABLE
TRAVEL.
"DELAWARE VALLEY BID: THE LUCAS MACHINE OFFERED HAS A SADDLE MOUNTED
ON VERY NARROW WAYS, BUT IS PROVIDED WITH ADDITIONAL OUTER SUPPORT.
THESE OUTER SUPPORTS EXTEND THE BEARING POINTS TO 48 INCHES WIDTH. IN
ORDER TO OBTAIN FULL USE OF THE TABLE SIZE IT WILL OVERHANG THE OUTER
SUPPORT BEARING BY OVER 50 PERCENT OF ITS LENGTH.
"/D) SPEC. PARAGRAPH 3.16--- AUTOMATIC POSITIONING: THE MACHINE
SHALL AUTOMATICALLY RELEASE THE TENSION OF THE SCREWS AND MECHANISMS SO
THAT APPLICATION OF THE LOCKS WILL SECURE THE SLIDES IN THEIR SELECTED
POSITION.
"DELAWARE VALLEY BID: THEY OFFER NO TENSION RELEASE BUT STATE "THE
LUCAS DESIGN DOES NOT PERMIT EXCESSIVE TENSION IN THE SCREWS.'
"/E) SPEC.--- PAGE 10, DATA SHEET A, UNIT 1, AND PAGE 12, DATA SHEET
B, UNIT 2: RAPID TRAVERSE RATE, HIGH (APPROX.) .... 150 IPM DELAWARE
VALLEY BID: ........................................... 75 IPM NAVAL
AIR MATERIAL CENTER NOTE: THIS WOULD INCREASE TRAVERSING TIME UP TO 100
PERCENT.'
THE DRAFTING OF PROPER SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF
THE GOVERNMENT IS A FUNCTION OF THE PROCURING AGENCY. 17 COMP. GEN.
554. WHILE THE LAW CONTEMPLATES FAIR AND UNRESTRICTED COMPETITION, THE
MERE FACT THAT A PARTICULAR BIDDER MAY NOT BE ABLE TO MEET THE MINIMUM
REQUIREMENTS OF AN INVITATION IS NOT SUFFICIENT TO WARRANT A CONCLUSION
THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. 30 COMP. GEN. 368. IN
OTHER WORDS, THE PROCURING AGENCY CANNOT BE REQUIRED TO ADVERTISE ON THE
BASIS OF SPECIFICATIONS REFLECTING SOMETHING LESS THAN ITS BONA FIDE
REQUIREMENTS SIMPLY TO EXPAND COMPETITION. 36 COMP. GEN. 251.
THEREFORE, IN THE ABSENCE OF A SHOWING THAT THE SPECIFICATIONS DID NOT
IN FACT REPRESENT A BONA FIDE DETERMINATION OF THE GOVERNMENT'S ACTUAL
REQUIREMENTS, THERE APPEARS NO BASIS UPON WHICH WE CAN OBJECT TO THE
ADMINISTRATIVE ACTION TAKEN IN THE MATTER.
B-139605, AUG. 3, 1959
TO COLONEL PHILIP I. BAKER:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 17, 1959, IN WHICH YOU AGAIN
REQUEST RECONSIDERATION OF YOUR CLAIM FOR INCREASED RETIRED PAY PURSUANT
TO THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY
READJUSTMENT ACT OF 1942, 56 STAT. 368, 37 U.S.C. 115.
YOU STATE YOU NOTED OUR LETTER OF JUNE 2, 1959, B-139605, BUT ARE
STILL NOT CONVINCED THAT THE LAW DOES NOT APPLY TO ALL RETIRED OFFICERS
WHO SERVED PRIOR TO NOVEMBER 12, 1918. IN ADDITION, YOU REQUEST
CONSIDERATION OF YOUR CLAIM FOR SUCH INCREASES ON THE BASIS OF A
VETERANS' ADMINISTRATION DETERMINATION OF 30 PERCENT SERVICE CONNECTED
DISABILITY, MADE DECEMBER 16, 1957, WHICH YOU BELIEVE ENTITLES YOU TO
DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF TITLE IV OF THE CAREER
COMPENSATION ACT OF 1949.
IN THE CASE OF BERRY V. UNITED STATES, 123 C.CLS. 530, REFERRED TO IN
OUR LETTER OF JUNE 2, 1959, THE COURT OF CLAIMS LISTED THREE FACTORS
WHICH LEAD IT TO CONCLUDE THAT CONGRESS INTENDED THE FOURTH PARAGRAPH OF
SECTION 15 TO BE LIMITED TO OFFICERS OF THE REGULAR SERVICES NAMED IN
THE TITLE OF THAT ACT. BRIEFLY, THEY ARE THAT AT THE TIME OF THE
ENACTMENT OF THAT PROVISION THE RETIREMENT LAWS APPLICABLE TO OFFICERS
OF THE REGULAR SERVICES GENERALLY WERE NOT APPLICABLE TO OFFICERS OF THE
RESERVE COMPONENTS; THAT THROUGHOUT THE ENTIRE PAY READJUSTMENT ACT OF
1942, CONGRESS PLAINLY DESIGNATED THOSE PROVISIONS WHICH WERE INTENDED
TO APPLY TO THE RESERVE COMPONENTS AND THE OMISSION OF ANY REFERENCE TO
SUCH RESERVE COMPONENTS IN THE SAID FOURTH PARAGRAPH, WHEN CONSIDERED IN
CONNECTION WITH THE CAREFUL REFERENCES CONTAINED IN THE OTHER SECTIONS
OF THAT ACT WAS EVIDENCE OF CONGRESSIONAL INTENT, AND FINALLY, THAT THE
LEGISLATIVE HISTORY OF THE FOURTH PARAGRAPH SHOWS THAT IT WAS INTENDED
TO PROVIDE FOR OFFICERS OF THE REGULAR NAVY AND THE OTHER SERVICES THE
SAME BENEFITS PROVIDED FOR OFFICERS OF THE REGULAR ARMY UNDER THE ACT OF
JUNE 13, 1940, 54 STAT. 380, 10 U.S.C. 971 (B) (11946 EDITION). WE
MENTIONED FURTHER IN THE PRIOR LETTER, THAT THE COURT STATED IN THE CASE
OF REYNOLDS V. UNITED STATES, 125 C.CLS. 108, THAT THE LEGISLATIVE
HISTORY OF THE CAREER COMPENSATION ACT OF 1949 SHOWS AN ABSENCE OF ANY
INTENT ON THE PART OF CONGRESS TO PLACE A NEW INTERPRETATION ON SECTION
15 OF THE PAY READJUSTMENT ACT OF 1942. THIS VIEW WAS AFFIRMED IN TRACY
V. UNITED STATES, 136 C.CLS 211, WHEREIN THE COURT HELD THAT ONLY THOSE
RESERVE OFFICERS RETIRED ON ACCOUNT OF PHYSICAL DISABILITY WERE ELIGIBLE
FOR CONSIDERATION UNDER PARAGRAPH 4, SECTION 15. SEE THE PROVISIONS OF
SECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949, 60 STAT. 825.
A READING OF THESE DECISIONS WILL INDICATE CLEARLY THAT THE COURT OF
CLAIMS, AS WELL AS THIS OFFICE, HAS INTERPRETED PARAGRAPH 4, SECTION 15
OF THE PAY READJUSTMENT ACT OF 1942, AS NOT BEING APPLICABLE TO RESERVE
OFFICERS RETIRED FOR REASONS OTHER THEN PHYSICAL DISABILITY.
WITH RESPECT TO YOUR ADDITIONAL REQUEST FOR CONSIDERATION OF YOUR
ENTITLEMENT TO SUCH INCREASE ON THE BASIS OF THE VETERANS ADMINISTRATION
DETERMINATION OF SERVICE CONNECTED DISABILITY, YOU ARE ADVISED THAT THIS
OFFICE HAS NO AUTHORITY TO DETERMINE ENTITLEMENT TO DISABILITY
RETIREMENT PAY UNDER THE CAREER COMPENSATION ACT, SUCH AUTHORITY BEING
VESTED IN THE SECRETARY OF THE ARMY UNDER THE PROVISIONS OF SECTION 414
OF THAT ACT, 63 STAT. 825, 37 U.S.C. 284. SEE ALSO, E.O. 10122 DATED
APRIL 14, 1950, 15 F.R. 2173. YOUR INQUIRY SHOULD BE DIRECTED TO THAT
DEPARTMENT, WHICH AGENCY WILL ADVISE YOU AS TO THE PROCEDURE REQUIRED TO
ESTABLISH YOUR RIGHT TO DISABILITY RETIREMENT PAY.
B-140264, AUG. 3, 1959
TO MR. ABRAHAM BELILOVE:
IN A LETTER DATED JULY 7, 1959, YOU REQUEST RECONSIDERATION OF THE
SETTLEMENT OF JUNE 8, 1959, WHICH DISALLOWED THE CLAIM OF FEDERAL METALS
COMPANY WITH RESPECT TO ITEM NO. 31 UNDER INVITATION NO. B-44-59-128
ISSUED BY THE NAVAL SUPPLY DEPOT, GREAT LAKES, ILLINOIS. YOU ALSO REFER
IN THE LETTER OF JULY 7, 1959, TO ANOTHER LETTER FROM YOU DATED JUNE 16,
1959.
THE FACTS ARE NOT IN DISPUTE. BRIEFLY STATED FEDERAL METALS COMPANY
WAS HIGH BIDDER ON ITEM 31, WHICH WAS IDENTIFIED IN THE INVITATION FOR
SALE ON AN "AS IS, WHERE IS" BASIS AS "TOOL STEEL, ALLOY,
TUNGSTEN-MOLYBDENUM, * * *.' HOWEVER, CARBON STEEL WAS DELIVERED AND
YOUR CLAIM OF $992 REPRESENTS THE DIFFERENCE IN VALUE. IN DISALLOWING
THE CLAIM BY SETTLEMENT OF JUNE 8, 1959, WE STATED THAT THE CONTRACT
TERMS IMPOSED UPON THE PURCHASER THE RISK IF THE PROPERTY FAILED TO
CORRESPOND WITH THE DESCRIPTION. SUCH RISK CAN BE AVOIDED ONLY IF IT
CAN BE SHOWN THAT THE DISPOSAL OFFICER ACTED IN BAD FAITH OR HAD
KNOWLEDGE OF ANY MISDESCRIPTION. NO SUCH SHOWING HAS BEEN MADE HERE.
IN THE RECENT LETTERS YOU STATE THAT THE ORIGINAL CLAIM COULD NOT AND
DID NOT ALLEGE BAD FAITH.
ON THE BASIS THAT ANOTHER ITEM (NO. 22) OF THE INVITATION PERTAINS
TO CARBON STEEL, YOU CONCLUDE THAT THE DISPOSAL OFFICER SHOULD HAVE
KNOWN THAT ITEM 31 WAS BEING MISDESCRIBED. MOREOVER, YOU POINT OUT THAT
INSPECTION WOULD NOT HAVE REVEALED THE MISDESCRIPTION.
WHILE IT MAY BE THAT THE DISPOSAL OFFICER KNEW THE DIFFERENCE
GENERALLY, BETWEEN ALLOY AND CARBON STEEL, IT DOES NOT FOLLOW IN LOGIC
OR LAW THAT HE KNEW ITEM 31 WAS MISDESCRIBED. ACTUAL KNOWLEDGE OF THE
MISDESCRIPTION OF A PARTICULAR ITEM, RATHER THAN GENERAL KNOWLEDGE THAT
TWO ITEMS ARE DIFFERENT IN NATURE, IS NECESSARY TO SHIFT THE BURDEN OF
RISK FROM THE BUYER.
YOUR FINAL POINT REGARDING INSPECTION IS, WE BELIEVE, COMPLETELY
DISPOSED OF BY A RECENT DECISION OF THE COURT OF CLAIMS. IN THE CASE OF
PAXTON-MITCHELL COMPANY V. THE UNITED STATES, C.CLS. NO. 109-58,
DECIDED APRIL 8, 1959, THE CONTRACT OF SALE WAS FOR STEEL ON AN "AS IS,
WHERE IS" BASIS. HOWEVER, THE STEEL SCRAPS WERE 49.7 PERCENT MALLEABLE
IRON. STEEL AND MALLEABLE IRON ARE NOT DISTINGUISHABLE, ACCORDING TO
THE AGREEMENT OF COUNSEL IN THAT CASE, BY THE NAKED EYE. AFTER QUOTING
ARTICLES 1 AND 2 OF THE GENERAL SALE TERMS AND CONDITIONS (BOTH
IDENTICAL TO ARTICLES 1 AND 2 OF THE FEDERAL METALS COMPANY CONTRACT AND
SUMMARIZED IN OUR SETTLEMENT OF JUNE 8, 1959) THE COURT SAID:
"A BIDDER FAILS TO INSPECT AT HIS PERIL. HAD PLAINTIFF MADE AN
INSPECTION BEFORE MAKING ITS BID, AS IT DID AFTERWARDS, IT COULD HAVE
DISCOVERED THAT MUCH OF THE MATERIAL WAS MALLEABLE IRON. VISUAL
INSPECTION WAS INEFFECTUAL, BUT MICROSCOPIC INSPECTION WAS EFFECTUAL, AS
WAS ALSO CHEMICAL ANALYSIS. PLAINTIFF WAS REQUIRED TO MAKE THE SORT OF
INSPECTION THAT WAS EFFECTUAL. IT MADE NONE, NOT EVEN A VISUAL
INSPECTION. ITS FAILURE TO SO DO LEAVES IT NO ROOM TO COMPLAIN.'
THE PLAINTIFF'S PETITION IN THAT CASE WAS DISMISSED.
IN VIEW OF THE CIRCUMSTANCES OUR SETTLEMENT OF JUNE 8, 1959, IS
CORRECT AND MUST BE SUSTAINED.
B-140298, AUG. 3, 1959
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO A LETTER (R11.2 L8) L8/NT4-28), DATED JULY 23,
1959, WITH ENCLOSURES, FROM THE ASSISTANCE CHIEF FOR PURCHASING, BUREAU
OF SUPPLIES AND ACCOUNTS, REQUESTING A DECISION AS TO WHETHER SALES
CONTRACT NO. N228S-39741 MAY BE CANCELED BECAUSE OF AN ERROR THE
CONTRACTOR, SIERRA SCRAP AND SALVAGE, RENO, NEVADA, ALLEGES IT MADE IN
ITS BID ON WHICH THE CONTRACT WAS BASED.
THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, BY SALES INVITATION NO.
B-219-59-228, ISSUED MAY 7, 1959, SOLICITED BIDS FOR THE PURCHASE FROM
THE GOVERNMENT OF CERTAIN MISCELLANEOUS USABLE SURPLUS MATERIAL
DESCRIBED THEREIN. IN RESPONSE TO THE INVITATION, SIERRA SCRAP AND
SALVAGE SUBMITTED, AMONG OTHERS, A BID OF ".007" PER FOOT AND AN
EXTENDED TOTAL PRICE OF "17.01" FOR THE LOT OF WIRE--- 24,300 FEET--- IN
ITEM NO. 24, DESCRIBED AS:
"WIRE, AWG CABLE DEMO. SINGLE CONDUCTION, RUBBER COATED COPPER.
ACQUISITION: $2,430.00. APPARENTLY UNUSED - IN GOOD CONDITION. EST.
WT. 460 LBS. CUBE 24. OPEN ROLLS--- NOT PACKED FOR SHIPMENT.' THE
ABSTRACT OF BIDS SHOWS THAT SEVEN OTHER BIDS--- RANGING FROM $0.003786
TO $0.00011 PER FOOT--- WERE RECEIVED ON ITEM NO. 24. APPARENTLY,
BECAUSE THE TOTAL PRICE INSERTED IN THE BID OF SIERRA SCRAP AND SALVAGE
FOR ITEM NO. 24 DID NOT AGREE WITH THE SPECIFIED UNIT PRICE MULTIPLIED
BY THE STIPULATED QUANTITY, THE SALES CONTRACTING OFFICER CHANGED THE
TOTAL BID PRICE TO "$170.10.' THE BID OF SIERRA SCRAP AND SALVAGE ON
ITEM NO. 24, AS CHANGED, BEING THE HIGHEST BID RECEIVED, WAS ACCEPTED
AND SALE OF THE MATERIAL IN THAT ITEM WAS AWARDED TO THAT FIRM IN THE
TOTAL AMOUNT OF $170.10 ON CONTRACT NO. N228S-39741, AND THE CONTRACT
AND INSTRUCTIONS WERE MAILED TO THE PURCHASER ON JUNE 4, 1959.
THEREAFTER, BE LETTER DATED JUNE 10, 1959, TO THE CONTRACTING
OFFICER, SIERRA SCRAP AND SALVAGE CLAIMED THAT AN ERROR HAD BEEN MADE IN
ITS BID ON ITEM NO. 24, ALLEGING THAT THE UNIT PRICE SHOULD
HAVE READ ".0007" PER FOOT INSTEAD OF ".007" AS SHOWN ON ITS BID,
THAT ITS EXTENDED TOTAL OF $17.01 WAS CORRECT, AND THAT ITS BID DEPOSIT
WAS COMPUTED ON THE BASIS OF THAT TOTAL FOR ITEM NO. 24. THE PURCHASER
REQUESTED ADJUSTMENT OF THE ERROR IN ITS BID PRICE AND THE SALE CONTRACT
PRICE OR, IF THERE WAS A HIGHER BIDDER, THAT THE MATERIAL BE AWARDED TO
THAT BIDDER. IN LETTER DATED JULY 18, 1959, RECEIVED BY THE NAVAL
SUPPLY CENTER ON JUNE 19, 1959, THE PURCHASER EXPLAINED THAT ITS TOTAL
BID OF $17.01 ON ITEM NO. 24 WAS BASED ON THE SCRAP VALUE OF RECLAIMABLE
COPPER AND THAT
THE ERROR IN ITS BID RESULTED FROM A MISPLACED DECIMAL POINT IN ITS
CALCULATION OF THE UNIT PRICE AS ".007" INSTEAD OF ".0007.' IN
SUBSTANTIATION OF ITS CLAIM OF ERROR THE PURCHASER SUBMITTED ITS
WORKSHEET, WHICH CONFIRMS THE ERROR, AS ALLEGED.
THE CONTRACTING OFFICER REPORTS THAT THE CLAIMANT'S BID OF $0.007 PER
FOOT ON ITEM NO. 24 IS 1.85 TIMES HIGHER THAN THE NEXT LOWER BID
RECEIVED; THAT SHOULD THE CLAIMANT'S BID BE CORRECTED AS REQUESTED IT
WOULD NOT BE THE HIGHEST; THAT THE TAPE SUBMITTED WITH THE LETTER OF
JULY 18 SHOWS THAT AN ERROR WAS MADE BY THE BIDDER IN ITS DECIMAL POINT
PLACEMENT; AND, FURTHER, THAT THE DEPOSIT ACCOMPANYING ITS BID WAS
BASED ON ITS TOTAL BID PRICE OF $17.01 FOR ITEM NO. 24. THE CONTRACTING
OFFICER RECOMMENDS THAT THE AWARD OF ITEM NO. 24 TO SIERRA SCRAP AND
SALVAGE BE CANCELED WITHOUT PENALTY TO IT.
ERROR AS TO ITEM NO. 24 IS APPARENT ON THE FACE OF CLAIMANT'S BID,
SINCE THE UNIT PRICE OF $0.007 WHEN MULTIPLIED BY THE QUANTITY OF 24,300
DOES NOT EQUAL THE AMOUNT OF $17.01 EXTENDED IN THE TOTAL COLUMN OF ITS
BID. HOWEVER, IF THE UNIT PRICE OF $0.0007, CLAIMED BY THE PURCHASER AS
ITS INTENDED UNIT PRICE, IS MULTIPLIED BY THE QUANTITY SPECIFIED FOR
ITEM NO. 24 THE TOTAL WILL BE $17.01, THE SAME AMOUNT SHOWN ON ITS BID
IN THE TOTAL COLUMN FOR THAT ITEM. IN THE CIRCUMSTANCES, THE
CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF POSSIBLE ERROR IN THE
BID, AND THE BIDDER SHOULD HAVE BEEN REQUESTED TO VERIFY ITS BID BEFORE
THE ACCEPTANCE THEREOF.
WHILE THE INVITATION TO BID PROVIDED IN PARAGRAPH 3 OF THE GENERAL
SALE TERMS AND CONDITIONS THAT, IN CASE OF ERROR IN THE EXTENSION OF
PRICES IN THE BID, THE UNIT PRICES WOULD GOVERN, AND WHILE IT HAS BEEN
HELD THAT THERE IS NO DUTY UPON THE CONTRACTING OFFICER TO COMPUTE THE
EXTENSIONS OF UNIT PRICES CONTAINED IN BIDS IN ORDER TO DETERMINE THE
CORRECTNESS OF SUCH EXTENSIONS, THAT PRINCIPLE CLEARLY IS NOT FOR
APPLICATION WHERE, AS HERE, AN ERROR IN EITHER THE UNIT PRICE OR THE
TOTAL PRICE IS APPARENT ON THE FACE OF THE BID AND THE CONTRACTING
OFFICER IS ON NOTICE OF SUCH ERROR PRIOR TO AND AT THE TIME OF MAKING
THE AWARD. SEE 15 COMP. GEN. 746.
ACCORDINGLY, CONTRACT NO. N228S-39741 MAY BE CANCELED WITHOUT
LIABILITY TO THE COMPANY AND, THEREFORE, REFUND OF ANY MONEY ADVANCED OR
PAID UNDER THE SALES TRANSACTION SHOULD BE MADE TO THE PURCHASER.
B-139167, JUL. 31, 1959
TO THE COLUMBUS PRODUCTION MANUFACTURING COMPANY:
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 6, 1959,
REGARDING OUR SETTLEMENT DATED FEBRUARY 13, 1959, WHICH DISALLOWED YOUR
CLAIM FOR $516.16 ALLEGED TO BE DUE FOR OVERCHARGE OF INTEREST ON
$13,764.39, AS COVERED BY INVOICES NOS. 1960, 1961, 1962, AND 1963 UNDER
DEPARTMENT OF THE NAVY CONTRACT NO. N600/A/42894, DATED AUGUST 3, 1956.
YOU ALSO MAKE CLAIM UNDER THE CONTRACT FOR THE INTEREST, APPARENTLY IN
THE AMOUNT OF $259.58, CHARGED ON THE SUM OF $5,121.47 WHICH WAS HELD IN
RESERVE IN A NAVY SPECIAL BANK ACCOUNT AT YOUR LOCAL BANK.
UNDER THE CONTRACT YOU AGREED TO FURNISH TO THE DEPARTMENT OF THE
NAVY CERTAIN QUANTITIES AND TYPES OF AIRCRAFT CATAPULTS, SPARE PARTS,
ETC., FOR A TOTAL PRICE OF $104,735.13. ON FEBRUARY 8, 1957,
MODIFICATION NO. 2 WAS ISSUED TO THE CONTRACT WHICH PROVIDED FOR ADVANCE
PAYMENTS TO BE MADE TO YOU OF NOT TO EXCEED A TOTAL OF $60,000 IN
ACCORDANCE WITH THE TERMS OF EXHIBIT A, WHICH WAS ATTACHED TO AND MADE A
PART OF THE CONTRACT. IT APPEARS THAT PURSUANT TO THE MODIFICATION
CERTAIN ADVANCE PAYMENTS--- $50,000 IN FEBRUARY 1957 AND $10,000 IN
MARCH 1957--- WERE MADE TO YOU BY DEPOSIT INTO A NAVY SPECIAL BANK
ACCOUNT AS REQUIRED UNDER PARAGRAPH 2, EXHIBIT A, MODIFICATION NO. 2.
IT APPEARS FURTHER THAT DEDUCTIONS FROM AMOUNTS OTHERWISE PROPERLY DUE
YOU WERE MADE BY THE DEPARTMENT OF THE NAVY FOR INTEREST ON CERTAIN
UNPAID BALANCES OF THE ADVANCED PAYMENTS IN ACCORDANCE WITH THE
PROVISIONS OF PARAGRAPHS 5 AND 14 OF EXHIBIT A. THIS ACTION RESULTED IN
YOUR CLAIMS WHICH ARE NOW BEFORE US.
IN YOUR LETTER OF MARCH 6, 1959, AND OTHER CORRESPONDENCE OF RECORD,
YOU TAKE THE POSITION WITH RESPECT TO YOUR CLAIM FOR $516.16 THAT
INVOICES NOS. 1960, 1961, 1962, AND 1963 COVERING THE $13,764.39 PAYMENT
WERE SENT TO THE INSPECTOR OF NAVAL MATERIAL (INSNAT), CINCINNATI, IN
THE NORMAL MANNER AND THAT THE INVOICES NO DOUBT WERE MISPLACED
SOMEWHERE BETWEEN THAT OFFICE AND GREAT LAKES, ILLINOIS, WHERE THEY WERE
TO BE FORWARDED FOR PAYMENT.
THERE IS IN THE RECORD BEFORE US A COPY OF A MEMORANDUM DATED OCTOBER
31, 1958, FROM THE COMPTROLLER OF THE NAVY TO THE OFFICER IN CHARGE,
U.S. NAVY REGIONAL ACCOUNTS OFFICE, GREAT LAKES, ILLINOIS, WHEREIN IT IS
STATED THAT "IT WOULD THEREFORE APPEAR FROM THE ABOVE SEQUENCE OF EVENTS
THAT THE INVOICES MIGHT HAVE BEEN MISLAID IN THE OFFICE OF THE INSPECTOR
OF NAVAL MATERIAL, CINCINNATI, AND NOT FORWARDED TO THE ADDRESSEE ON A
TIMELY BASIS.' ALSO, A REFERENCE IS MADE IN THE MEMORANDUM TO A
STIPULATION IN PARAGRAPHS 217723 OF ONM ADMINISTRATION MANUAL, THAT FORM
DD 250 MAY BE USED AS AN INVOICE PROVIDED THAT IT IS PROPERLY DESIGNATED
AS SUCH. ATTACHED TO D.O. VOUCHER NO. 58419, ON WHICH PAYMENT OF THE
$13,764.39 ULTIMATELY WAS MADE ON JUNE 6, 1958, ARE FOUR FORMS DD 250
DESIGNATED AS ORIGINAL INVOICE NO. 1960, INVOICE NO. 1961, INVOICE NO.
1962, AND INVOICE NO. 1963. IN ADDITION, EACH INVOICE SHOWS INSPECTION
AND ACCEPTANCE OF THE CATAPULTS BY A GOVERNMENT REPRESENTATIVE ON
SEPTEMBER 9, 1957. THEREFORE, SINCE FORMS DD 250, WHICH, INCIDENTALLY,
YOU STATE HAD BEEN USED AS INVOICES FOR ALL PRIOR AND SUBSEQUENT
BILLINGS UNDER THE CONTRACT, PROPERLY WERE DESIGNATED AS INVOICES AND
WERE IN THE HANDS OF AN AUTHORIZED GOVERNMENT REPRESENTATIVE OF
SEPTEMBER 9, 1957, AND SINCE THE PAYMENT ON JUNE 6, 1958, ACTUALLY WAS
MADE ON THE BASIS OF SUCH FORMS DD 250, AS INVOICES, RATHER THAN ON ANY
OTHER TYPE OF PRIVATE INVOICE FORM, IT IS NOT BELIEVED THAT THE
GOVERNMENT WOULD BE WARRANTED IN CHARGING YOU INTEREST ON THE $13,764.39
FOR THE PERIOD SEPTEMBER 9, 1957, TO JUNE 6, 1958. IT APPEARS THAT THE
GOVERNMENT WAS IN THE POSITION TO CREDIT YOU WITH THE PAYMENT OF
$13,764.39 IN THE NAVY SPECIAL BANK ACCOUNT ON OR ABOUT SEPTEMBER 9,
1957.
ACCORDINGLY, INSTRUCTIONS ARE TODAY BEING ISSUED TO OUR CLAIMS
DIVISION TO ALLOW YOUR CLAIM IN THE AMOUNT OF $516.16, IF OTHERWISE
CORRECT.
WITH RESPECT TO YOUR CLAIM FOR THE INTEREST CHARGED YOU ON THE AMOUNT
OF $5,121,47--- APPARENTLY COMPUTED BY GREAT LAKES IN THE AMOUNT OF
$259.58 FOR THE PERIOD JULY 31, 1957, TO AUGUST 5, 1958--- YOU CONTEND
THAT A REQUEST, WHICH WAS MADE IN YOUR BEHALF TO THE NAVY REGIONAL
ACCOUNTS OFFICE AT GREAT LAKES TO WITHDRAW THIS AMOUNT OF MONEY FROM THE
NAVY SPECIAL BANK ACCOUNT WENT UNANSWERED AND, THEREFORE, YOU WERE
FORCED TO PAY INTEREST ON THE MONEY WHICH WAS INTENDED TO BE WITHDRAWN
IN PARTIAL REPAYMENT OF THE MONEY ADVANCED TO YOU BY THE NAVY UNDER THE
SUBJECT CONTRACT. IN THIS CONNECTION, THE DEPARTMENT OF THE NAVY
REPORTS THAT IT HAS NO RECORD OF ANY REQUEST FROM YOU FOR WITHDRAWAL OF
THE $5,121.47, OR ANY PART THEREOF, PRIOR TO THE RECEIPT OF YOUR LETTER
DATED JULY 10, 1958, TO THE CINCINNATI INSPECTOR OF NAVAL MATERIAL. IN
THAT LETTER YOU STATE THAT THE $5,121.47 SHOULD BE USED TO REIMBURSE THE
NAVY FOR THE ADVANCE PAYMENTS AND THAT "THIS WILL ALSO STOP OUR INTEREST
FOR THAT PORTION OF ADVANCE PAYMENTS.' THE LATTER STATEMENT CLEARLY
IMPLIES YOUR RECOGNITION OF A PROPER INTEREST CHARGE UP TO THAT TIME AT
LEAST. MOREOVER, THERE IS IN THE RECORD BEFORE US A COPY OF YOUR LETTER
DATED DECEMBER 13, 1957, TO THE GREAT LAKES REGIONAL ACCOUNTS OFFICE,
WHEREIN YOU REFERRED TO LIQUIDATION OF THE ADVANCE PAYMENT ACCOUNT BUT
SAID NOTHING ABOUT YOUR ALLEGED PREVIOUS REQUEST FOR WITHDRAWAL OF THE
$5,121.47 TO REIMBURSE THE ACCOUNT. IN VIEW OF THE FOREGOING, THERE IS
NO LEGAL BASIS FOR ALLOWANCE OF ANY PART OF THE INTEREST OF $259.58
CHARGED TO YOUR ACCOUNT SINCE SUCH AMOUNT APPEARS TO HAVE BEEN PROPERLY
COMPUTED AND CHARGED UNDER APPLICABLE PROVISIONS OF THE CONTRACT, AS
AMENDED.
B-139680, JUL. 31, 1959
TO LIEUTENANT COLONEL THOMAS F. MCCORD, USA:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 2, 1959, WHICH HAS BEEN
REFERRED TO THIS OFFICE BY THE DEPARTMENT OF THE ARMY. YOUR LETTER
PROTESTS THE ACTION TAKEN IN OUR CLAIMS DIVISION SETTLEMENT DATED
NOVEMBER 25, 1958, WHICH DISALLOWED YOUR CLAIM FOR A SECOND DISLOCATION
ALLOWANCE FOR FISCAL YEAR 1956 INCIDENT TO TRAVEL PERFORMED UNDER
PERMANENT CHANGE OF STATION ORDERS DATED SEPTEMBER 29, 1955.
FROM THE RECORD, IT APPEARS THAT BY ORDERS DATED AUGUST 10, 1955, YOU
WERE TRANSFERRED FROM SALZBURG, AUSTRIA, TO LEGHORN, ITALY. IT IS SHOWN
THAT YOU WERE PAID A DISLOCATION ALLOWANCE INCIDENT TO THAT CHANGE OF
STATION. BY ORDERS DATED SEPTEMBER 29, 1955, YOU WERE TRANSFERRED FROM
LEGHORN, ITALY, TO THE CONTINENTAL UNITED STATES, AND YOUR DEPENDENTS
PERFORMED THE PERTINENT TRAVEL COMMENCING OCTOBER 26, 1955. YOUR CLAIM
IS FOR AN ADDITIONAL DISLOCATION ALLOWANCE DURING FISCAL YEAR 1956
INCIDENT TO THE LATTER PERMANENT CHANGE OF STATION.
SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY
SECTION 2 (12) OF THE ACT OF MARCH 31, 1955, 69 STAT. 21, AUTHORIZES
PAYMENT OF A DISLOCATION ALLOWANCE TO A MEMBER OF A UNIFORMED SERVICE
WHOSE DEPENDENTS ARE AUTHORIZED TO MOVE, AND ACTUALLY MOVE, IN
CONNECTION WITH HIS PERMANENT CHANGE OF STATION UNDER REGULATIONS
APPROVED BY THE SECRETARY OF THE DEPARTMENT CONCERNED. IT FURTHER
PROVIDES THAT "THE MEMBER SHALL BE ENTITLED TO THE PAYMENT OF A
DISLOCATION ALLOWANCE FOR NOT MORE THAN ONE PERMANENT CHANGE OF STATION
DURING ANY FISCAL YEAR, EXCEPT ON THE FINDING OF THE SECRETARY OF THE
DEPARTMENT CONCERNED THAT THE EXIGENCIES OF THE SERVICE REQUIRE MORE
THAN ONE SUCH CHANGE OF STATION DURING ANY FISCAL YEAR.'
PROMULGATED PURSUANT TO THE AUTHORITY VESTED BY STATUTE, AND IN
EFFECT AT THE TIME OF ISSUANCE OF THE ORDERS DIRECTING THE CHANGE OF
STATION INVOLVED AND THE TRAVEL PERFORMED THEREUNDER WAS COMMENCED,
PARAGRAPH 9003-7, CHANGE 35, JOINT TRAVEL REGULATIONS, PROVIDED THAT A
DISLOCATION ALLOWANCE IS NOT PAYABLE FOR MORE THAN ONE PERMANENT CHANGE
OF STATION DURING ANY FISCAL YEAR EXCEPT ON THE FINDING OF THE SECRETARY
OF THE DEPARTMENT CONCERNED THAT THE EXIGENCIES OF THE SERVICE REQUIRE
MORE THAN ONE CHANGE OF STATION DURING THE CURRENT FISCAL YEAR.
ON APRIL 5, 1955, DEPARTMENT OF THE ARMY MESSAGE 301395 WAS ISSUED TO
VARIOUS COMMANDS INCLUDING COMMANDING GENERAL, UNITED STATES FORCES IN
AUSTRIA, SALZBURG, AUSTRIA, THE ORDER ISSUING AUTHORITY HERE INVOLVED.
IN THAT MESSAGE IT WAS BROUGHT TO THE ATTENTION OF THAT HEADQUARTERS
THAT A STATEMENT OF POLICY REGARDING PAYMENT OF DISLOCATION ALLOWANCE
FOR MORE THAN ONE PERMANENT CHANGE OF STATION DURING ANY FISCAL YEAR WAS
BEING FORMULATED. SUBSEQUENTLY, ALSO, TO IMPLEMENT THE STATUTORY
PROVISIONS CONTAINED IN SECTION 303 (C), DEPARTMENT OF THE ARMY MESSAGE
346979, DATED SEPTEMBER 12, 1955, ON THE SUBJECT OF DISLOCATION
ALLOWANCE, WAS ISSUED. IN THE LATTER MESSAGE, PARAGRAPH 3D PROVIDED
THAT ALL PERMANENT CHANGES OF STATION EFFECTIVE ON OR AFTER APRIL 1,
1955, AND PRIOR TO SEPTEMBER 9, 1955, EXCEPT THOSE MADE AT THE REQUEST
OF OR FOR THE PERSONAL CONVENIENCE OF THE INDIVIDUAL, WERE DETERMINED TO
BE REQUIRED BY THE EXIGENCIES OF THE SERVICE. FOR SECOND OR SUBSEQUENT
MOVES WITHIN A FISCAL YEAR OCCURRING DURING THAT PERIOD, SPECIAL ORDERS
WOULD BE AMENDED TO INCLUDE THE STATEMENT INDICATED IN PARAGRAPH 6 (THAT
ORDERS ISSUED PURSUANT TO AN APPROVED REQUEST WILL STATE: "THIS ADD FY
MOV IS AUTH BY THE SA PER DA MCG -------") CITING THE MESSAGE AS
AUTHORITY.
AS THE EFFECTIVE DATE OF THE PERMANENT CHANGE OF STATION AS
AUTHORIZED BY YOUR ORDERS OF SEPTEMBER 29, 1955, OCCURRED SUBSEQUENT TO
SEPTEMBER 8, 1955, YOUR ELIGIBILITY FOR ENTITLEMENT TO A SECOND
DISLOCATION ALLOWANCE DURING THE SAME FISCAL YEAR WAS GOVERNED BY
PARAGRAPH 4 OF THE DEPARTMENT OF THE ARMY MESSAGE 346979.
PARAGRAPH 4 OF DA 346979 PROVIDED THAT ANY TRAVEL OF INDIVIDUALS,
WHICH TRAVEL CONSISTS OF A SECOND PERMANENT CHANGE OF STATION DURING A
FISCAL YEAR AND IF NEITHER AUTHORIZED BY PARAGRAPH 3A (CONCERNING MOVES
FROM OR BETWEEN SERVICE SCHOOLS) NOR REQUIRED BY THE EXIGENCIES OF THE
SERVICE (PARAGRAPH 3B, CONCERNING PERMANENT CHANGE OF STATION OF THE
UNIT TO WHICH THE MEMBER WAS ASSIGNED, AND PARAGRAPH 3C, CONCERNING
MOVES OCCASIONED BY ASSIGNMENT IN A PATIENT STATUS TO, FROM
OR BETWEEN MEDICAL DETACHMENTS) WAS PROHIBITED EXCEPT:
"A. AS AUTH IN ADV OF THE TVL BY THE SA.
"B. IN TIME OF WAR OR NATL EMERG.'
THUS, SUCH REGULATIONS, LIKE THE REGULATIONS CONTAINED IN ARMY
REGULATIONS 35-3065, DATED JANUARY 6, 1956 (SUPERSEDING DA MESSAGE
301395) REQUIRED THE APPROVAL BY THE SECRETARY OF THE ARMY, IN ADVANCE
OF TRAVEL, OF MORE THAN ONE PERMANENT CHANGE OF STATION IF DISLOCATION
ALLOWANCE WAS TO BE PAID.
YOUR CLAIM WAS DISALLOWED ON THE GROUNDS THAT THE AMENDMENT OF YOUR
ORDERS ON SEPTEMBER 3, 1958 (ALMOST THREE YEARS AFTER YOUR ORDERS DATED
SEPTEMBER 29, 1955), WHICH AUTHORIZED YOUR ADDITIONAL PERMANENT CHANGE
OF STATION FOR WHICH A SECOND DISLOCATION ALLOWANCE DURING ONE FISCAL
YEAR IS CLAIMED, WAS NOT CONSIDERED AS MEETING THE REQUIREMENTS OF THE
LAW AND REGULATIONS, AND THEREFORE, PAYMENT OF DISLOCATION ALLOWANCE WAS
NOT AUTHORIZED.
IN VIEW OF THE REGULATIONS CONTAINED IN DA MESSAGE 346979, ISSUED
PURSUANT TO STATUTE, THE AMENDATORY ORDERS ISSUED SEPTEMBER 3, 1958,
COULD HAVE NO EFFECT TO SUPPLY THE APPROVAL BY THE SECRETARY OF THE ARMY
OF MORE THAN ONE PERMANENT CHANGE OF STATION WHICH WAS REQUIRED AS A
CONDITION PRECEDENT TO PAYMENT OF DISLOCATION ALLOWANCE. OUR OFFICE IS
REQUIRED TO SETTLE CLAIMS ON THE BASIS OF APPLICABLE LAW AND
REGULATIONS. B-131153, SEPTEMBER 26, 1957. THE CITED STATUTE AND
REGULATIONS BAR PAYMENT OF A DISLOCATION ALLOWANCE INCIDENT TO MORE THAN
ONE PERMANENT CHANGE OF STATION DURING ANY FISCAL YEAR AS THEREIN
SPECIFIED, AND HENCE, NO RIGHT TO SUCH AN ALLOWANCE ACCRUED INCIDENT TO
YOUR CHANGE OF STATION ORDERS DATED SEPTEMBER 29, 1955, BECAUSE IT IS
SHOWN THAT YOU WERE PAID SUCH AN ALLOWANCE INCIDENT TO ORDERS OF AUGUST
10, 1955. ACCORDINGLY, ON THE PRESENT RECORD, PAYMENT OF YOUR CLAIM IS
NOT AUTHORIZED AND OUR SETTLEMENT OF NOVEMBER 25, 1958, IS SUSTAINED.
THE PAPERS SUBMITTED HERE IN SUPPORT OF A CLAIM BECAME PART OF THE
RECORDS OF THIS OFFICE AND MAY NOT BE RETURNED. FOR USE IN SUITS OR
CLAIMS AGAINST THE UNITED STATES, PHOTOSTATIC COPIES MAY BE SUPPLIED
UPON PAYMENT OF THE USUAL CHARGES THEREFOR.
B-139925, JUL. 31, 1959
TO MR. PAUL K, PASCHKE:
ON JUNE 12, 1959, YOU REQUESTED OUR DECISION WHETHER YOU MAY ACCEPT
BILLINGS AND APPROVE PAYMENTS TO THE UNIVERSITY OF PENNSYLVANIA FOR
TUITION AND FEES ON ACCOUNT OF THE ENROLLMENT OF MRS. MARIJA B.
NOVOSEL, AN INTERNATIONAL COOPERATION ADMINISTRATION PARTICIPANT FROM
YUGOSLAVIA. THE QUESTION ARISES BECAUSE THE ACTUAL CHARGES AS BILLED BY
THE UNIVERSITY FOR THE SPRING SEMESTER, 1959, ARE HIGHER THAN OFFICIALS
OF THE DEPARTMENT ARRANGING HER ENROLLMENT WERE INFORMED THEY WOULD BE.
THE FILE INDICATES THAT IN ARRANGING MRS. NOVOSEL'S ENROLLMENT
INQUIRY WAS MADE ON NOVEMBER 4, 1958, TO THE PSYCHOLOGICAL LABORATORY
AND CLINIC OF THE UNIVERSITY. MRS. MARY L. RYAN, ADMINISTRATIVE
ASSISTANT IN THE CLINIC, REPLIED ON DECEMBER 8, 1958, THAT THE
"APPROXIMATE COST OF TUITION AND FEES FOR ONE YEAR AMOUNTS TO $800.' ON
JANUARY 5, 1959, THE ADMINISTRATIVE ASSISTANT SECRETARY WROTE MRS. RYAN
IN PART AS FOLLOWS:
"THIS LETTER MAY BE CONSIDERED YOUR AUTHORITY TO BILL THE DEPARTMENT
OF LABOR FOR SERVICES INCURRED ON BEHALF OF MRS. NOVOSEL WITH THE
UNDERSTANDING THAT THE CHARGES WILL NOT EXCEED 0.00.'
MRS. NOVOSEL DULY ENTERED THE UNIVERSITY AT THE BEGINNING OF THE
SPRING SEMESTER IN FEBRUARY 1959. ON MAY 22, THE SUPERVISOR OF STUDENT
ACCOUNTS WROTE TO THE DEPARTMENT POINTING OUT THAT THE ORIGINAL
"ESTIMATE" OF $850 (OR $800) GIVEN BY THE PSYCHOLOGICAL LABORATORY AND
CLINIC WAS ERRONEOUS IN THAT IT WAS BASED ON THE 1957-1958 RATE INSTEAD
OF THE INCREASED RATES FOR THE 1958-1959 AND THE 1959-1960 SCHOOL YEARS
AS PUBLISHED IN THE RESPECTIVE CATALOGS, COPIES OF WHICH YOU FORWARDED
AND WHICH WE RETURN HEREWITH. THE UNIVERSITY PROPOSED TO INCREASE THE
PREVIOUS ESTIMATE BY $245 TO CONFORM WITH THE APPLICABLE PUBLISHED RATES
MAKING A TOTAL OF $1,095 FOR TWO SEMESTERS.
IN THE CIRCUMSTANCES, WE DO NOT CONSIDER THAT THE CORRESPONDENCE
BETWEEN THE DEPARTMENT AND THE UNIVERSITY CREATED A CONTRACT BY WHICH
THE UNIVERSITY COULD BE RESTRICTED TO THE QUOTATION OF $850 FOR TUITION
AND FEES BECAUSE WE PRESUME THAT MRS. RYAN HAD NO AUTHORITY TO ALTER THE
OFFICIALLY ESTABLISHED TUITION AND FEE RATES PUBLISHED BY THE
UNIVERSITY. THEREFORE, OUR OFFICE WOULD NOT OBJECT TO THE PAYMENT OF
THE PROPER TUITION AND FEES COMPUTED ON THE ESTABLISHED RATES APPLICABLE
TO OTHER STUDENTS, IF ADMINISTRATIVELY APPROVED.
IN THAT CONNECTION, WE ARE UNABLE TO VERIFY THE CORRECTNESS OF THE
AMOUNT OF $1,095 FOR TWO SEMESTERS FROM THE RATES SET OUT IN THE
APPLICABLE CATALOGS. WE UNDERSTAND, HOWEVER, THAT THE UNIVERSITY HAS
INFORMALLY INDICATED TO YOUR OFFICE THAT THIS FIGURE IS IN ERROR AND
THAT THE UNIVERSITY IS IN THE PROCESS OF FURNISHING YOU A REVISED AND
CORRECTED BILLING.
THEREFORE, THE CORRECT AMOUNT BASED ON APPLICABLE CATALOG RATES, MAY
BE CERTIFIED FOR PAYMENT. THE VOUCHER WHICH MAY NOT BE CERTIFIED IN ITS
PRESENT AMOUNT IS RETURNED.
B-139934, JUL. 31, 1959
TO MR. W. R. PILCHER, DISBURSING OFFICER:
BY THIRD INDORSEMENT DATED JUNE 11, 1959, THE OFFICE OF THE CHIEF OF
ENGINEERS, DEPARTMENT OF THE ARMY, FORWARDED FOR OUR CONSIDERATION YOUR
REQUEST OF MAY 14, 1959, FILE NO. SWLFE, FOR AN ADVANCE DECISION ON THE
DISPOSITION TO BE MADE OF THE CROP DAMAGE CLAIM OF H. N. ALLISON AND
DOXIE A. ALLISON, HUSBAND AND WIFE, ROUTE 1, BOX 88, HEBER SPRINGS,
ARKANSAS.
BY A PERMIT DATED OCTOBER 11, 1955, SIGNED BY H. M. ALLISON ONLY, THE
UNITED STATES WAS GRANTED PERMISSION, UNTIL JULY 1, 1956, TO ENTER UPON
THE ALLISONS' LAND "TO CONDUCT SURVEYS, TO PROSECUTE CORE BORINGS AND
OTHER FOUNDATION EXPLORATIONS, TO CONSTRUCT AND REMOVE TEMPORARY
BUILDINGS, AND TO PROSECUTE SUCH OTHER WORK AS IS NECESSARY FOR THE
CONDUCT OF AUTHORIZED INVESTIGATION AND/OR THE PREPARATION OF PLANS AND
SPECIFICATIONS FOR THE PROPOSED GREERS FERRY DAM PROJECT.' THE PERMIT,
APPARENTLY GRANTED WITHOUT CONSIDERATION, PROVIDED FOR REIMBURSEMENT "AT
THE CURRENT MARKET PRICES FOR ANY CROPS DAMAGED.'
SUBSEQUENTLY, AT THE REQUEST OF THE GOVERNMENT, MR. ALLISON EXTENDED
THE PERIOD OF THE PERMIT TO JUNE 30, 1958. ON JULY 5, 1958, A RELEASE
WAS OBTAINED FROM MR. ALLISON DISCHARGING THE UNITED STATES FROM ALL
MANNER OF ACTIONS, LIABILITY, AND CLAIMS ARISING OUT OF THE
RIGHT-OF-ENTRY PERMIT AND OCCUPATION BY THE UNITED STATES OF THE
PROPERTY.
IN A LETTER OF DECEMBER 27, 1958, MRS. DOXIE A. ALLISON, WIFE OF H.
M. ALLISON, SUBMITTED A CLAIM IN THE AMOUNT OF $600 FOR CROP DAMAGE
DURING 1957 AND 1958. INVESTIGATION REVEALED THAT TITLE TO THE PROPERTY
WAS VESTED IN MR. AND MRS. ALLISON AS TENANTS BY THE ENTIRETIES, AND
THAT A $225 CROP DAMAGE HAD BEEN SUFFERED BY THEM INCIDENT TO THE
EXERCISE BY THE GOVERNMENT OF THE RIGHT OF ENTRY. THE ALLISONS HAVE
SUBMITTED AN INVOICE FOR THE SUM OF $225, TO COVER THEIR CLAIM.
MR. AND MRS. ALLISON ARE STATED TO BE APPROXIMATELY 75 YEARS OF AGE
AND OF LIMITED EDUCATION. ON MARCH 12, 1959, THEY WERE CONTACTED, AND
THE PREVIOUSLY EXECUTED RELEASE WAS BROUGHT TO THEIR ATTENTION. MR.
ALLISON RECOGNIZED HIS SIGNATURE ON THE RELEASE BUT HAD NO RECOLLECTION
OF SIGNING THE PAPER. HE CONTENDS HE DID NOT UNDERSTAND THE TRUE INTENT
OF THE RELEASE AND SIGNED IT UNDER A MISAPPREHENSION AS TO THE PURPOSES
STATED THEREIN.
WHILE NOT SPECIFICALLY STATED, WE GATHER FROM YOUR LETTER THAT NO
CONSIDERATION ACTUALLY PASSED INCIDENT TO THE EXECUTION OF THE
RELEASE--- THE ENTIRE AMOUNT OF THE LOSS ($225) BEING ADMINISTRATIVELY
RECOMMENDED FOR PAYMENT. IT ALSO APPEARS THE POSITION OF THE GOVERNMENT
HAS NOT BEEN ADVERSELY AFFECTED TO WARRANT CONSIDERING MR. ALLISON
ESTOPPED FROM DENYING THE VALIDITY OF THE RELEASE.
WE ARE OF THE VIEW THE RELEASE NEED NOT BE CONSIDERED IN THE PAYMENT
OF THIS CLAIM, AND THE AMOUNT OF THE LOSS SUFFERED BY THE ALLISONS
SHOULD BE PAID JOINTLY TO BOTH OF THEM.
B-140241, JUL. 31, 1959
TO MR. CHARLES E. MORELOCK, ACTING AREA DIRECTOR, DEPARTMENT OF THE
INTERIOR, BUREAU OF INDIAN AFFAIRS:
REFERENCE IS MADE TO YOUR LETTER DATED JULY 15, 1959, WITH
ENCLOSURES, REQUESTING OUR DECISION AS TO THE ACTION TO BE TAKEN WITH
RESPECT TO AN ERROR ALLEGED TO HAVE BEEN MADE IN THE BID OF D. W.
FALLS, INC., ALBUQUERQUE, NEW MEXICO, UNDER INVITATION NO. GA600-34470,
DATED MAY 5, 1959.
IN RESPONSE TO THE INVITATION, D. W. FALLS, INC., SUBMITTED A BID
OFFERING TO CLEAR TIMBER AND BRUSH OFF OF A 740-ACRE AREA OF LAND ON THE
SANDIA PUEBLO, SANDOVAL COUNTY, NEW MEXICO, FOR A TOTAL CONSIDERATION OF
$11,100. TEN DAYS AFTER BIDS WERE RECEIVED, THE CORPORATION, BY WIRE
DATED JUNE 13, 1959, ADVISED THE GALLUP AREA OFFICE THAT ITS BID SHOULD
HAVE BEEN $21,100 INSTEAD OF $11,100 AND, THEREFORE, REQUESTED THAT ITS
BID BE WITHDRAWN. SUBSEQUENTLY, THE CORPORATION FURNISHED COPIES OF ITS
ORIGINAL BID ESTIMATE IN SUPPORT OF THE ALLEGATION OF ERROR.
A THERMOFAX COPY OF THE BID ESTIMATE SHEET WAS SWORN TO BY THE
SECRETARY OF D. W. FALLS, INC., AS BEING AN EXACT DUPLICATE OF THE
ORIGINAL BID ESTIMATE AND SHOWS, AS EXPLAINED BY THE CORPORATION, THAT
IN EXTENDING THE AMOUNT OF THE BID FOR THE ESTIMATED NUMBER OF HOURS OF
WORK INVOLVED AT THE ESTIMATED RATE PER HOUR--- 450 HOURS AT $46.44 AN
HOUR--- THE AMOUNT OF $10,898 WAS ARRIVED AT INSTEAD OF THE CORRECT
AMOUNT OF $20,898. HENCE, THE COPY OF THE BID ESTIMATE APPEARS TO
SUBSTANTIATE THE CORPORATION'S ALLEGATION OF THE ERROR OF $10,000 IN THE
BID WHICH, AFTER INCLUDING AN ADDITIONAL AMOUNT OF APPROXIMATELY TWO
PERCENT TO COVER THE STATE SCHOOL TAXES, RESULTED IN THE ROUNDED OUT BID
OF $11,100. MOREOVER, THE ABSTRACT OF BIDS SHOWS THAT EIGHT OTHER BIDS
WERE RECEIVED WHICH RANGED FROM $19,749.75 TO $98,450.
IN VIEW OF THE FOREGOING, THERE CAN BE LITTLE, IF ANY, DOUBT THAT AN
ERROR WAS MADE IN THE BID OF D. W. FALLS, INC., AND SINCE IT WAS ALLEGED
PROMPTLY AND ACCEPTABLE PROOF FURNISHED TO SUBSTANTIATE THE EXPLANATION
THEREOF, THE BID OF THE CORPORATION MAY BE DISREGARDED IN MAKING THE
AWARD.
THE PAPERS, WITH THE EXCEPTION OF THE COPY OF THE LETTER DATED JUNE
17, 1959, OF D. W. FALLS, INC., ITS AFFIDAVIT AND THE THERMOFAX COPY OF
THE BID ESTIMATE SHEET, ARE RETURNED HEREWITH.
B-125744, JUL. 30, 1959
TO THE SECRETARY OF DEFENSE:
REFERENCE IS MADE TO LETTER DATED JUNE 19, 1959, FROM THE ASSISTANT
SECRETARY OF DEFENSE (COMPTROLLER), FORWARDING COMMITTEE ACTION NO. 244
OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AND
REQUESTING RECONSIDERATION OF THAT PART OF OUR DECISION DATED NOVEMBER
29, 1955, 35 COMP. GEN. 302, WHICH HELD, IN ANSWER TO QUESTION 3, THAT A
CONVICTION BY A COURT-MARTIAL OF AN OFFENSE WHICH IS A FELONY AS DEFINED
IN PARAGRAPH 213D (6) OF THE MANUAL FOR COURTS-MARTIAL, 1951, WOULD BE A
CONVICTION OF AN OFFENSE WHICH IS A FELONY "UNDER THE LAWS OF THE UNITED
STATES," WITHIN THE MEANING OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT.
1142.
IN THE DISCUSSION IN COMMITTEE ACTION NO. 244 THERE IS QUOTED AN
EXTRACT FROM WINTHROP, MILITARY LAW AND PRECEDENTS (2D ED., 1920) AT
PAGE 108, WHICH READS AS FOLLOWS:
"IT IS FURTHER TO BE SAID OF THE OFFENSES WHICH ARE THE SUBJECTS OF
THE ARTICLES OF WAR THAT THERE IS NO DISTINCTION BETWEEN THEM OF
"FELONY" AND "MISDEMEANOR.' NONE OF THEM ARE FELONIES AND NONE OF THEM
ARE MISDEMEANORS AT MILITARY LAW, BUT ALL ARE MERELY MILITARY CRIMES * *
*. NO SENTENCE OF COURT-MARTIAL * * * CAN INVOLVE THE DISABILITY OR
OTHER PENAL CONSEQUENCE ORDINARILY ATTACHING TO CONVICTION OF FELONY OR
OTHER INFAMOUS CRIME.'
IT IS STATED IN THE COMMITTEE ACTION THAT, UNDER THIS VIEW, IT WOULD
APPEAR TO FOLLOW THAT AN OFFENSE UNDER THE UNIFORM CODE OF MILITARY
JUSTICE IS NOT AN OFFENSE "WHICH IS A FELONY UNDER THE LAWS OF THE
UNITED STATES," SINCE NO OFFENSE UNDER MILITARY LAW COULD PROPERLY BE
TERMED A ,FELONY.' IN SUPPORT OF THE RULE LAID DOWN BY WINTHROP, THERE
ARE CITED KURTZ V. MOFFITT, 115 U.S. 487 (1885), AND UNITED STATES V.
CLARK, 31 F. 710 (C.C.E.D. MICH., 1887). VARIOUS OTHER MATTERS ARE
DISCUSSED WHICH ARE BELIEVED TO HAVE A BEARING ON THE QUESTION HERE
INVOLVED.
AFTER OUR DECISION OF NOVEMBER 29, 1955, WAS WRITTEN, THIS MATTER WAS
FURTHER CONSIDERED BY US IN RESPONSE TO A REQUEST OF A FORMER CHAIRMAN
OF THE UNITED STATES CIVIL SERVICE COMMISSION FOR A DECISION WHICH WOULD
ESTABLISH CRITERIA FOR DETERMINING WHETHER A MILITARY OFFENSE "IS A
FELONY UNDER THE LAWS OF THE UNITED STATES" WITHIN THE MEANING OF
SECTION 1, CLAUSE (2) OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142.
IN OUR DECISION DATED MAY 11, 1956, B-127022, WE ADHERED TO THE VIEWS
EXPRESSED IN THE PRIOR DECISION AND ADVISED HIM, IN PERTINENT PART, AS
FOLLOWS:
"ALTHOUGH MILITARY REGULATIONS WHEN CONSISTENT WITH EXISTING
STATUTORY ENACTMENTS HAVE THE FORCE OF LAW, THEY CANNOT ABROGATE OR
DEROGATE FROM THE FEDERAL STATUTES WHICH REMAIN IN FULL FORCE AND VIRTUE
AS THE LAW OF THE LAND. 6 C.J.S. 348. THEREFORE,"FELONY" AS DEFINED IN
THE FEDERAL STATUTES WOULD ALSO CONSTITUTE THE DEFINITION OF "FELONY"
APPLICABLE TO MILITARY OFFENSES, NOTWITHSTANDING THAT THE DISTINCTION
BETWEEN FELONIES AND MISDEMEANORS HAS NOT BEEN RECOGNIZED IN MILITARY
LAW. SEE UNITED STATES V. CLARK, 31 FED. 710; WINTHROP MILITARY LAW
(2D ED 1920 REPRINT) P. 108; OP.J.A.G.A. 1952/8326, 3 DIG.OPS., POSTS,
ETC., SEC. 23.1. THUS, A DETERMINATION WHETHER
ANY MILITARY OFFENSE IS A FELONY INVOLVES (1) WHETHER THE OFFENSE IS
PUNISHABLE BY DEATH OR CONFINEMENT EXCEEDING ONE YEAR, AND (2) WHETHER
THE OFFENSE IS OF A CIVIL NATURE.
"IN CASES WHERE THE SENTENCE IMPOSSIBLE FOR THE OFFENSE FOR WHICH THE
APPLICANT WAS CONVICTED, EXCEEDS ONE YEAR, REFERENCE SHOULD BE MADE TO
THE UNITED STATES CODE OR THE CODE OF THE DISTRICT OF COLUMBIA TO
ASCERTAIN WHETHER THE PARTICULAR OFFENSE IS ANALOGOUS TO ONE OF A CIVIL
NATURE. SEE UNITED STATES V. MOORE (NO. 5026), 18 CMR 311; OP.J.A.G.,
VOL. 2, 1918, P. 707. IF THE ABOVE TWO REQUIREMENTS ARE MET, THE
MILITARY OFFENSE PROPERLY MAY BE CONSIDERED A FELONY FOR PURPOSES OF THE
ACT OF SEPTEMBER 1, 1954.'
MOST OF THE MATTERS MENTIONED IN COMMITTEE ACTION NO. 244 WERE
CONSIDERED AT THE TIME OUR DECISION OF NOVEMBER 29, 1955, WAS RENDERED
AND WE FIND NOTHING IN THE SUBMISSION WHICH WOULD WARRANT ANY CHANGE IN
THE CONCLUSION REACHED BY US IN THAT DECISION.
B-139603, JUL. 30, 1959
TO THE AMERICAN AIRLINES, INC. :
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 8, 1959, IN WHICH YOU
REQUESTED A REVIEW OF OUR SETTLEMENT OF MARCH 17, 1959, DISALLOWING YOUR
CLAIM PER BILL 960183-GAO FOR $53.95 ADDITIONAL CHARGES FOR PASSENGER
TRANSPORTATION SERVICES FURNISHED FOR THE ACCOUNT OF THE DEPARTMENT OF
THE ARMY IN SEPTEMBER 1956, PURSUANT TO UNITED STATES GOVERNMENT
TRANSPORTATION REQUEST NO. M-1,349,483.
FOR THIS TRANSPORTATION, YOU ORIGINALLY BILLED THE GOVERNMENT AND
WERE PAID THE AMOUNT OF $161.90, BASED ON CHARGES FOR ONE-WAY ADULT
FIRST CLASS FARE, LESS 10 PERCENT MILITARY DISCOUNT, AND ONE HALF-FARE
FROM EL PASO, TEXAS, TO NEW YORK, NEW YORK. THE AMOUNT OF THE
HALF-FARE, $53.95, WAS DISALLOWED IN OUR AUDIT OF THE VOUCHER INVOLVED,
ON THE BASIS THAT THE REQUEST FOR TRANSPORTATION WAS LIMITED TO ONE FULL
FARE. AFTER REFUNDING THE INDICATED AMOUNT, YOUR COMPANY FILED THE
RECLAIM BILL HERE INVOLVED. IT APPEARS TO BE YOUR VIEW THAT THE PHRASE
"FOR USE OF MRS. ANN C. BALLANTYNE AND ONE OTHER," APPEARING ON THE
TRANSPORTATION REQUEST, AUTHORIZED THE FURNISHING OF THE TICKETS ISSUED.
SO FAR AS PERTINENT HERE, THE TRANSPORTATION REQUEST READS AS
FOLLOWS:
"THE AMERICAN AIRLINES, INC. COMPANY IS REQUESTED TO FURNISH FIRST
CLASS AIR TRANSPORTATION AT LOWEST RATE FROM EL PASO, TEXAS, TO NEW
YORK, N.Y. VIA AAL DESTN ONE FULL FARE FOR USE OF MRS. ANN C. BALLANTYNE
AND ONE OTHER * * *.'
THE UNDERSCORED WORDS WERE ENTERED BY TYPEWRITER IN THE BLANK SPACES
PROVIDED FOR THE PURPOSE ON THAT PART OF THE PRINTED FORM WHICH IS
ADDRESSED TO CARRIERS AND IS DESIGNED TO FURNISH THEM WITH INFORMATION
AS TO THE CHARACTER OF SERVICE REQUESTED, AND AS TO THE PERSON OR
PERSONS TO WHOM THE SERVICE SHOULD BE RENDERED. THE QUOTED LANGUAGE
CLEARLY ESTABLISHES THAT ONLY "ONE FULL FARE" WAS AUTHORIZED. HOWEVER,
IN ADDITION, THE TRANSPORTATION REQUEST, IN THE SPACE RESERVED IN THE
LOWER RIGHT HAND CORNER OF THE FORM FOR AGENCIES OF THE GOVERNMENT TO
ENTER ACCOUNTING DATA, THERE APPEARS A NOTATION WHICH INCLUDES THE
STATEMENT "2 DEPS, WIFE AND SON AGE 11 MONTHS 1ST LT. JOHN L.
BALLANTYNE * * *.' THIS ADDITIONAL INFORMATION AS TO THE AGE OF MRS.
BALLANTYNE'S CHILD APPEARS SUFFICIENT TO APPRISE THE CARRIER THAT THE
"ONE OTHER" REFERRED TO IN THE TRANSPORTATION REQUEST WAS AN INFANT ONLY
ELEVEN MONTHS OLD, WHO COULD, UNDER APPLICABLE TARIFFS, BE CARRIED BY
ITS MOTHER AT NO ADDITIONAL CHARGE. IN ANY EVENT, EVEN IF PROOF (NOT
AVAILABLE IN THIS RECORD) WERE SUBMITTED THAT THE CHILD ACTUALLY
OCCUPIED A SEAT, THE GOVERNMENT WOULD NOT BE LIABLE FOR MORE THAN ONE
FULL FARE ON THE TRANSPORTATION REQUEST USED, SINCE IT DID NOT
AUTHORIZE, REQUEST, OR REQUIRE THE ADDITIONAL SEAT.
ACCORDINGLY, OUR SETTLEMENT OF MARCH 17, 1959, DISALLOWING YOUR CLAIM
FOR $53.95, WAS CORRECT, AND IS HEREBY SUSTAINED.
B-140173, JUL. 30, 1959
TO MR. DAVID J. SAVORY:
YOUR LETTER OF APRIL 10, 1959, TRANSMITTED BY THE A.F.G.E. ON JUNE
24, 1959, TO US, REQUESTS THAT WE REVIEW OUR CLAIMS DIVISION SETTLEMENT
OF DECEMBER 16, 1958, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL
COMPENSATION BELIEVED TO BE DUE YOU BECAUSE AN ALLEGED EXCESSIVE DELAY
IN THE ADMINISTRATIVE PROCESSING OF YOUR PROMOTION FROM GS-11 TO GS-12
AS AN EMPLOYEE OF THE FRANKFORD ARSENAL, PHILADELPHIA 37, PENNSYLVANIA.
SPECIFICALLY YOU REQUEST THAT A SPECIAL RULING BE MADE IN YOUR FAVOR
(NOTWITHSTANDING THE SETTLEMENT) "TO EFFECT A FAIR ADJUSTMENT FOR THE
LOSSES CURRED.'
THE RECORD SHOWS THAT A REQUEST OR RECOMMENDATION (STANDARD FORM NO.
52) FOR YOUR PROMOTION WAS PREPARED ON APRIL 11, 1958. SOME TIME LATER,
UPON YOUR INQUIRY, IT WAS DETERMINED THAT THE FORM HAD NOT BEEN RECEIVED
IN THE CIVILIAN PERSONNEL OFFICE, BUT A DUPLICATE FORM NO. 52 WAS
FORWARDED ON MAY 21, 1958, AS ORDERED, THROUGH DIRECTED CHANNELS TO THE
COMMANDING GENERAL WHO APPROVED THE PROMOTION ON JULY 10, 1958. THE
RECORD SHOWS SOME PRELIMINARY ACTION TOWARD YOUR PROMOTION BEGAN SOME
TIME PRIOR TO MAY 21, 1958. HOWEVER, AND EVEN THOUGH YOU HAD BEEN ON
DETAIL OR OTHERWISE WERE PERFORMING THE DUTIES OF THE GS-12 POSITION OF
JUNE 20, 1958, THE DATE OF ENACTMENT OF THE FEDERAL EMPLOYEES SALARY
INCREASE ACT OF 1958, 72 STAT. 203, WE KNOW OF NO AUTHORITY WHEREBY THE
PROMOTION OR A SALARY ADJUSTMENT MAY BE MADE RETROACTIVE AS YOU SUGGEST.
ALTHOUGH THE DELAY IN QUESTION OCCURRED THROUGH NO FAULT ON YOUR PART,
IT DOES NOT APPEAR THAT YOU ACQUIRED A VESTED RIGHT TO A SALARY
ADJUSTMENT PRIOR TO THE DATE ON WHICH THE PROMOTION LEGALLY WAS
EFFECTED.
THE RULE IS WELL ESTABLISHED THAT MORE NOMINATIONS OR RECOMMENDATIONS
BY SUPERVISORY OR PERSONNEL OFFICERS WHO ARE NOT VESTED WITH THE FINAL
APPOINTING AUTHORITY DO NOT CONSTITUTE PROPER AUTHORITY FOR THE PAYMENT
OF COMPENSATION. ADMINISTRATIVE PROMOTIONS UNDER DISCRETIONARY
AUTHORITIES MAY NOT BE MADE RETROACTIVE. IN THE ABSENCE OF A PATENT
ERROR IN A PERSONNEL ACTION UNDER A MANDATORY PROVISION OF LAW, OR OF
CONTROLLING REGULATIONS, WE KNOW OF NO BASIS WHEREBY YOUR PROMOTION
COULD LAWFULLY HAVE BECOME EFFECTIVE PRIOR TO JULY 6, 1958.
IN LIGHT OF THE FOREGOING COMMENTS, THE SETTLEMENT OF DECEMBER 16,
1958, MUST BE AND IS SUSTAINED.
B-140219, JUL. 30, 1959
MR. ALBERTO C. TEODORO:
YOUR LETTER OF MAY 12, 1959, REQUESTS REVIEW OF OUR SETTLEMENT OF
FEBRUARY 2, 1959, WHICH DISALLOWED YOUR CLAIM FOR AMOUNTS BELIEVED DUE
YOU AS A RESULT OF YOUR EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY FROM
DECEMBER 1, 1945 TO JUNE 3, 1949.
AS STATED IN OUR SETTLEMENT YOUR CLAIM WAS RECEIVED IN OUR OFFICE ON
SEPTEMBER 26, 1958. UNDER THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31
U.S.C. 71A, ANY CLAIM AGAINST THE UNITED STATES WHICH IS NOT RECEIVED IN
THE GENERAL ACCOUNTING OFFICE WITHIN TEN YEARS OF ITS ACCRUAL IS BARRED.
THEREFORE, WE ARE PRECLUDED FROM CONSIDERING THAT PORTION OF YOUR
CLAIM WHICH ACCRUED PRIOR TO SEPTEMBER 26, 1948.
WE HAVE CAREFULLY REVIEWED THE REPORTS AND RECORDS OF YOUR
EMPLOYMENT, FURNISHED BY THE DEPARTMENT OF THE ARMY, FOR THAT PORTION OF
YOUR CLAIM ARISING AFTER SEPTEMBER 26, 1948. THOSE RECORDS SHOW THAT
YOU RECEIVED YOUR BASIC PAY PLUS 50 PERCENT "BONUS" ALLOWANCE PROVIDED
IN YOUR CONTRACT DURING THE PERIOD OF YOUR EMPLOYMENT. THE FILE
REFLECTS THAT YOU DID NOT SERVE DURING A WAR PERIOD AND THEREFORE ARE
NOT ENTITLED TO A "WAR BONUS.'
THE RECORDS SHOW THAT UPON SEPARATION YOU WERE PAID A LUMP SUM FOR
ALL ANNUAL LEAVE TO YOUR CREDIT. SICK LEAVE, UNDER THE ANNUAL AND SICK
LEAVE ACTS OF 1936, 49 STAT. 1162, 5 U.S.C. 30 F-K AND LEAVE REGULATIONS
30.101 OF THE CIVIL SERVICE COMMISSION, MAY BE USED AS LEAVE ONLY AND
ANY BALANCE OF SICK LEAVE TO THE CREDIT OF AN EMPLOYEE AT THE TIME OF
HIS SEPARATION MAY NOT BE PAID FOR. THE RECORD SHOWS THAT NO PAYMENT IS
DUE YOU FOR ANY OVERTIME.
YOU WERE FURNISHED SUBSISTENCE AND QUARTERS WITHOUT COST TO YOU UNDER
THE EMPLOYMENT CONTRACT USED BY THE DEPARTMENT OF THE ARMY AT THE TIME
OF YOUR EMPLOYMENT. UNDER THE SAME CONTRACT PAYMENTS FOR PER DIEM AND
TRAVEL EXPENSES ARE SUBJECT TO THE STANDARDIZED GOVERNMENT TRAVEL
REGULATIONS. THERE IS NO INDICATION IN THE RECORDS OF YOUR EMPLOYMENT
THAT YOU EVER BECAME ENTITLED TO PAYMENTS UNDER THESE REGULATIONS SINCE
THE DEPARTMENT OF THE ARMY REPORTS THAT YOU WERE DISCHARGED AT YOUR HOME
PORT OF HIRE.
UPON COMPLETE REVIEW OF THE RECORDS, WE FIND THAT NO MONEY IS DUE
YOU; HENCE, THE SETTLEMENT DISALLOWING YOUR CLAIM IS SUSTAINED.
B-140292, JUL. 30, 1959
TO MR. LEON W. HILL:
REFERENCE IS MADE TO YOUR LETTER OF JULY 22, 1959, WITH ENCLOSURES,
SUBMITTING FOR CONSIDERATION THE MATTER OF A MISTAKE ALLEGED BY WOLFE
BROTHERS, P.O. BOX 517, CRESCENT, OKLAHOMA, TO HAVE BEEN MADE IN THEIR
BID SUBMITTED IN RESPONSE TO SPECIFICATIONS NO. 500C-68 FOR BERMUDA
GRASSING DOWNSTREAM SLOPE, FORT COBB DAM, WASHITA BASIN PROJECT,
OKLAHOMA.
THE ABSTRACT OF BIDS SHOWS THAT TWO BIDS WERE RECEIVED IN THIS CASE,
THE LOWER BEING THAT SUBMITTED BY WOLFE BROTHERS IN THE AMOUNT OF
$12,615, AND THE SECOND LOW BY C. J. TATE AND SONS IN THE AMOUNT OF
$48,240. YOU REPORT THAT IN CHECKING THE LOW BID A CLERICAL ERROR IN
THE EXTENSION OF ITEM 2 WAS NOTED AND CORRECTED AND THAT, AS CORRECTED,
THE LOW BID WOULD BE INCREASED TO $16,800. YOU REPORT, FURTHER THAT
IMMEDIATELY AFTER THE BID OPENING, THE "BIDDER'S CARRIER" TELEPHONED THE
LOW BIDDER AND HE RELAYED THE MESSAGE THAT THE LOW BIDDER HAD MADE A
MISTAKE ON ITEM 3, IN THAT HIS BID SHOULD HAVE BEEN 27 CENTS PER SQUARE
YARD RATHER THAN 7 CENTS PER SQUARE YARD AS SHOWN IN THE LOW BID. THE
LOW BIDDER SENT A TELEGRAM ON JULY 10, 1959, TO THE PROJECT MANAGER,
REQUESTING WITHDRAWAL OF HIS BID UNDER THE INDICATED SPECIFICATIONS. IN
SUPPORT OF THE ALLEGED ERROR, THERE WAS TRANSMITTED WITH YOUR LETTER AN
AFFIDAVIT DATED JULY 14, 1959, BY MR. DON E. WOLFE--- ONE OF THE
PARTNERS--- TO THE EFFECT THAT THE ERROR WAS CLERICAL. THE BIDDER'S
WORKSHEET SHOWS A PRICE OF 27 CENTS PER SQUARE YARD FOR ITEM 3, ALTHOUGH
THE FIGURE "2" IS SO POORLY WRITTEN IT CAN BE MISTAKEN FOR A ZERO.
IT WAS STATED IN YOUR LETTER THAT A COMPARISON OF THE BIDS RECEIVED
FOR THIS WORK WAS MADE WITH YOUR ENGINEER'S ESTIMATE AND THE PROGRAMED
AMOUNT; THAT THE ENGINEER'S ESTIMATE WAS $44,400; THAT THE SECOND BID
WAS IN THE AMOUNT OF $48,240; AND THAT THE PROGRAMED AMOUNT FOR THE
WORK WAS $50,000. YOU, THEREFORE, ARE OF THE VIEW THAT WOLFE BROTHERS
SUBMITTED AN UNSOUND BID AND YOU RECOMMEND THAT THE LOW BID BE PERMITTED
TO BE WITHDRAWN AND AWARD AUTHORIZED TO THE SECOND LOW BIDDER.
ON THE BASIS OF THE RECORD BEFORE OUR OFFICE, THERE IS NO REASONABLE
ROOM FOR DOUBT THAT AN ERROR IN BID WAS MADE BY THE LOW BIDDER.
ACCORDINGLY, SINCE THE ERROR WAS ALLEGED AND EXPLAINED PRIOR TO AWARD,
THE BID OF WOLFE BROTHERS MAY BE DISREGARDED IN MAKING AN AWARD.
B-130988, JUL. 29, 1959
TO THE HONORABLE SUMNER G. WHITTIER, ADMINISTRATOR, VETERANS
ADMINISTRATION:
ON JULY 13, 1959, YOUR REFERENCE 033A, YOUR DEPUTY ADMINISTRATOR
REQUESTED OUR DECISION AS TO WHETHER, UNDER THE FACTS SET FORTH BELOW,
THE SALARY RATE OF EDWARD I. ARPIN AS A MEMBER OF THE VETERANS EDUCATION
APPEALS BOARD IS CREDITABLE IN ESTABLISHING HIS "HIGHEST PREVIOUS RATE"
UNDER FEDERAL PAY REGULATIONS 25.102 (J) AND 25.103 (B) UPON HIS
APPOINTMENT AS ATTORNEY TRIAL EXAMINER WITH VETERANS ADMINISTRATION.
MR. ARPIN WAS APPOINTED TO HIS POSITION ON THE VETERANS EDUCATION
APPEALS BOARD BY THE PRESIDENT UNDER THE AUTHORITY OF SECTION 2 OF THE
VETERANS' EDUCATION AND TRAINING AMENDMENTS OF 1950, 64 STAT. 338, 38
U.S.C. (SUPP. V) CH. 12A VETS.REG.NO. 1 (A) PART VIII, PAR 11 (D), WHICH
PROVIDES FOR THE BOARD AND SETS THE COMPENSATION OF ITS MEMBERS AT $50
FOR EACH DAY ACTUALLY SPENT BY THEM IN THE WORK OF THE BOARD. THE BOARD
DESIGNATED MR. ARPIN AS RESIDENT AND PRESIDING MEMBER AND INSTRUCTED HIM
TO PERFORM HIS DUTIES ON A REGULARLY SCHEDULED WORKWEEK. MR. ARPIN
SERVED IN THIS CAPACITY FROM SEPTEMBER 5, 1950, TO OCTOBER 27, 1957, AT
WHICH TIME THE BOARD WENT OUT OF EXISTENCE. ALTHOUGH HIS TOUR OF DUTY
FOR THIS PERIOD WAS IN EXCESS OF 40 HOURS PER WEEK HE CONTINUED TO BE
PAID AT THE STATUTORY RATE OF $50 FOR EACH DAY ACTUALLY WORKED.
ON JULY 15, 1958, MR. ARPIN WAS REEMPLOYED BY YOU AS ATTORNEY TRIAL
EXAMINER, GS-14 AT $11,355 PER ANNUM, THE MINIMUM RATE FOR THAT GRADE,
WITH THE STIPULATION THAT SUCH RATE WOULD BE INCREASED RETROACTIVELY IF
HE WAS ENTITLED TO A HIGHER RATE. WHEN YOU WERE INFORMED BY THE CIVIL
SERVICE COMMISSION THAT MR. ARPIN'S COMPENSATION AS A MEMBER OF THE
BOARD COULD BE USED AS HIS HIGHEST PREVIOUS RATE IF IT WAS
ADMINISTRATIVELY DETERMINED THAT HE HAD WORKED A REGULARLY SCHEDULED
TOUR OF DUTY IN THAT POSITION HIS COMPENSATION WAS RETROACTIVELY
INCREASED TO $12,555 PER ANNUM, THE MAXIMUM SCHEDULED RATE OF GS-14.
OUR OFFICE ISSUED AN INFORMAL INQUIRY DATED JUNE 2, 1959, QUESTIONING
THIS INCREASE IN SALARY ON THE BASIS THAT AN EMPLOYEE IS NOT ENTITLED TO
CREDIT OF SALARY EARNED WHILE EMPLOYED ON A "WHEN ACTUALLY EMPLOYED"
BASIS AS HIS "HIGHEST PREVIOUS RATE," CITING 30 COMP. GEN. 375 AS THE
BASIS FOR SUCH AUDIT ACTION. IN THAT CASE WE HELD THAT EMPLOYMENT
OF AN EXPERT OR CONSULTANT UNDER SECTION 15 OF THE ADMINISTRATIVE
EXPENSES ACT OF 1946, 60 STAT. 810, 5 U.S.C. 55A, EITHER ON A TEMPORARY
OR INTERMITTENT BASIS, MAY NOT BE CONSIDERED AN EMPLOYEE'S FIRST
APPOINTMENT UNDER SECTIONS 801 AND 802 OF THE CLASSIFICATION ACT OF
1949, 63 STAT. 969, 5 U.S.C. 1131, 1132. SINCE MR. ARPIN WAS NOT
APPOINTED TO THE BOARD UNDER SECTION 15 OF THE ADMINISTRATIVE EXPENSES
ACT OF 1946, THAT DECISION IS NOT FOR APPLICATION TO HIM.
FEDERAL EMPLOYEES' PAY REGULATIONS 25.102 (J) AND 25.103 (B), ISSUED
PURSUANT TO SECTIONS 801 AND 802 OF THE CLASSIFICATION ACT OF 1949
AUTHORIZES THE USE OF PREVIOUS SALARY WHEN A REGULAR TOUR OF DUTY IS
ESTABLISHED AND WHEN AN APPOINTMENT OR SERIES OF APPOINTMENTS CONTINUES
FOR A PERIOD OF 90 DAYS.
SINCE IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT MR. ARPIN HAD A
REGULAR TOUR OF DUTY IN HIS POSITION WITH THE VETERANS EDUCATION APPEALS
BOARD AND SINCE THAT POSITION CONTINUED OVER A PERIOD IN EXCESS OF 90
DAYS WE SEE NO LEGAL OBJECTION TO PAYMENT OF HIS SALARY AT A RATE ABOVE
THE MINIMUM FOR THE GRADE TO WHICH HE WAS APPOINTED AS LONG AS THE RATE
AT WHICH HE IS PAID IS NOT IN
B-134791, JUL. 29, 1959
TO THE AMERICAN PRESIDENT LINES:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 11, 1959, REQUESTING
RECONSIDERATION OF OUR DECISION OF MARCH 6, 1958 (37 COMP. GEN. 583),
WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR REFUND OF $91.51 OF
THE TOTAL AMOUNT OF $119.85 ADMINISTRATIVELY WITHHELD TO COMPENSATE FOR
THE LOSS AND DAMAGE SUSTAINED BY A GOVERNMENT-OWNED CHEVROLET STATION
WAGON WHILE IN TRANSIT DURING 1956, FROM JERSEY CITY, NEW JERSEY, TO
MANILA, PHILIPPINE ISLANDS, ABOARD THE S.S. PRESIDENT ARTHUR V/18, UNDER
GOVERNMENT BILL OF LADING NO. GS-739434.
YOU CONTEND THAT THE VEHICLE WAS NOT DAMAGED TO THE EXTENT REPORTED
BY THE GOVERNMENT AT THE TIME OF ITS DISCHARGE FROM THE VESSEL AT THE
PORT OF MANILA, IT BEING YOUR POSITION THAT ONLY THE LEFT FRONT AND REAR
FENDERS WERE THEN FOUND TO BE DENTED AND SCRATCHED. HENCE, YOU HAVE
VOLUNTARILY ASSUMED LIABILITY FOR ONLY $28.34 OF THE TOTAL REPORTED LESS
AND DAMAGE TO THIS VEHICLE, REPRESENTING WHAT PURPORTS TO BE AN ESTIMATE
OF THE COST OF REPAIRING THE DAMAGE NOTED AT THE TIME OF DISCHARGE. IN
SUPPORT OF YOUR POSITION, YOU HAVE SUBMITTED A STATEMENT DATED MAY 21,
1959, FROM THE ACTING CHIEF, ADMINISTRATIVE DEPARTMENT, MANILA PORT
SERVICE, ALONG WITH A COPY OF BAD ORDER EXAMINATION REPORT NO. 4947,
DATED AUGUST 23, 1956, PURPORTING TO ESTABLISH THAT AT THE TIME THE
AUTOMOBILE WAS UNLOADED FROM THE VESSEL, THERE WERE EVIDENCES OF DAMAGE
ONLY TO THE VEHICLE'S LEFT FRONT AND REAR FENDERS.
ESSENTIALLY, THE QUESTION OF THE EXTENT OF THE LOSS OR DAMAGE
SUFFERED BY A CARGO WHILE IN TRANSIT IS ONE OF FACT, AS TO WHICH THE
ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE NO DIRECT OR FIRST-HAND
KNOWLEDGE. HENCE, IN CONTROVERSIAL ISSUES OF FACT, SUCH AS WE HAVE
HERE, IT HAS BECOME THE INVARIABLE RULE OF OUR OFFICE TO ACCEPT THE
CORRECTNESS OF THE FACTS AS REPORTED TO US BY THE ADMINISTRATIVE
OFFICIALS OF THE GOVERNMENT, PARTICULARLY IN THE ABSENCE OF EVIDENCE
SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF CORRECTNESS WHICH
NECESSARILY MUST BE ACCORDED THEM. SEE 20 COMP. GEN. 573, 578; 18 ID.
799; 16 ID. 410; 3 ID. 51.
AS YOU PREVIOUSLY WERE ADVISED IN OUR DECISION OF MARCH 6, 1958, NOT
ONLY WAS THE COVERING BILL OF LADING NOTED AT THE TIME TO SHOW A RUBBER
FLOOR MATTING AND A GAS-TANK CAP MISSING UPON ARRIVAL OF THE VEHICLE AT
MANILA, BUT IT ALSO SHOWS THAT DENTS AND SCRATCHES WERE VISIBLE ON THE
BODY AS WELL AS THE FENDERS OF THE AUTOMOBILE. FURTHER, IN AN "OVER,
SHORT, AND DAMAGE REPORT," AND ALSO IN AN ADMINISTRATIVE REPORT PREPARED
BY THE CONSIGNEE AROUND THE TIME OF DISCHARGE OF THIS CARGO, THE SAID
LOSS AND DAMAGE ARE REPORTED SUBSTANTIALLY AS FOLLOWS:
TABLE
MISSING OR DAMAGED COST
1 FRONT FLOOR RUBBER MATTING, MISSING $13.05
1 CAP, GAS, MISSING 1.225
RIGHT REAR TOP CORNER DENTED 18 INCHES BY
2 INCHES DEEP
RIGHT REAR CORNER SLIGHTLY DENTED
LEFT SIDE BODY SCRATCHED AND SLIGHTLY DENTED
LEFT FRONT FENDER DENTED 105.575
------------
$119.850
SINCE THE EVIDENCE PRESENTED BY YOU IS NOT DEEMED TO BE SUFFICIENT TO
OVERCOME THE PRESUMPTION OF CORRECTNESS WHICH WE ATTACH TO THE
ADMINISTRATIVE STATEMENTS AND THE BILL OF LADING RECORD, YOU ARE ADVISED
THAT OUR DECISION OF MARCH 6, 1958, WHICH SUSTAINED THE DISALLOWANCE OF
YOUR CLAIM, IS AFFIRMED.
B-137876, JUL. 29, 1959
TO RICHARD BENNETT, ESQUIRE:
REFERENCE IS MADE TO YOUR LETTER OF JULY 8, 1959, REQUESTING THAT WE
FURTHER RECONSIDER THAT PART OF OUR SETTLEMENT OF MARCH 19, 1959,
DISALLOWING PAYMENT TO CAPTAIN J. A. BARHANOVIC UPON SIX OF 18 CHECKS
INVOLVED IN HIS CLAIM NO. Z-159901, WHICH SETTLEMENT WAS TWICE SUSTAINED
AFTER RECONSIDERATIONS PURSUANT TO YOUR EARLIER REQUESTS OF APRIL 17,
AND JUNE 9, 1959.
THE BASIS FOR THE DISALLOWANCE HAS BEEN FULLY EXPLAINED IN OUR
LETTERS OF MAY 21 AND JULY 6, 1959, AND IT WOULD SERVE NO USEFUL PURPOSE
TO REITERATE THE REASONS STATED THEREIN.
YOUR LATEST REQUEST FOR RECONSIDERATION OF THE CLAIM IS APPARENTLY
BASED UPON THE BELIEF THAT WE HAVE MISCONSTRUED THE HOLDING OF THE COURT
IN UNITED STATES V. GUARANTY TRUST COMPANY OF NEW YORK, 293 U.S. 340,
RELIED UPON BY US IN REACHING OUR DECISION. YOU STATE THAT UNDER THE
LAW OF YUGOSLAVIA, CAPTAIN BARHANOVIC, AS THE HOLDER OF THE CHECKS IN
QUESTION, HAS GOOD TITLE TO THEM AND IS ENTITLED TO PAYMENT; THAT IT IS
NOT NECESSARY THAT HE BE A BONA FIDE HOLDER OF THE CHECKS. YOU STATE
ALSO THAT IN THE GUARANTY TRUST CASE, THE BANK ACQUIRED GOOD TITLE TO
THE CHECK INVOLVED "IN SPITE OF A KNOWN FORGED INDORSEMENT.'
IT IS OBVIOUS FROM EVEN A CURSORY READING OF THE GUARANTY TRUST CASE
THAT THE BANK WAS NOT AWARE OF THE FORGED INDORSEMENT AT THE TIME IT
ACCEPTED TRANSFER OF THE CHECK. IN A RECITATION OF THE FACTS IN THE
CASE, IT IS STATED AT PAGE 344 "THAT EACH OF THESE BANKS PAID A VALUABLE
CONSIDERATION, RECEIVED THE CHECK IN GOOD FAITH, TOOK IT WITHOUT NOTICE
OF THE FORGERY OR OTHER DEFECT, AND WAS NOT GUILTY OF ANY FRAUD OR
NEGLIGENCE.' IT IS EQUALLY OBVIOUS THAT HAD THE BANK KNOWN OF THE FORGED
INDORSEMENT PRIOR TO ITS BECOMING TRANSFEREE OF THE CHECK, THE COURT
WOULD NOT HAVE REACHED THE CONCLUSION IT DID, AND THAT WHERE THE COURT
SPEAKS OF THE "TRANSFEREE WITHOUT INDORSEMENT" AT PAGE 348, IT IS
REFERRING TO A BONA FIDE TRANSFER FOR VALUE.
AS TO THE APPLICABLE PROVISIONS OF THE LAW OF YUGOSLAVIA, THERE IS
QUOTED BELOW A PORTION OF THE FOOTNOTE APPEARING AT 293 U.S. 343,
PARAGRAPHS (A) (B) AND (C) OF WHICH CLEARLY REQUIRE THE BONA FIDES OF
THE TRANSFEREE IN ORDER FOR HIM TO OBTAIN GOOD TITLE.
"UPON THE NEGOTIATION AND TRANSFER OF A CHECK OR BILL OF EXCHANGE
EACH TRANSFEREE, ENDORSEE, OR HOLDER THEREOF OBTAINS A GOOD TITLE TO THE
INSTRUMENT AND ACQUIRES THE RIGHT TO COLLECT AND RETAIN THE PROCEEDS
THEREOF, EVEN THOUGH THE ENDORSEMENT OF THE PAYEE IS FORGED WHERE
"/A) THE INSTRUMENT PURPORTS TO BEAR A CHAIN OR SERIES OF
ENDORSEMENTS FROM THE PAYEE OF THE INSTRUMENT TO THE TRANSFEREE, HOLDER
OR ENDORSEE THEREOF; AND
"/B) THE SAID TRANSFEREE, HOLDER OR ENDORSEE GIVES VALUABLE
CONSIDERATION FOR THE INSTRUMENT; AND
"/C) THE SAID TRANSFEREE, HOLDER OR ENDORSEE TAKES THE INSTRUMENT
WITHOUT ACTUAL NOTICE OF ANY FORGERY OR OTHER DEFECT IN THE INSTRUMENT
AND IS NOT GUILTY OF ANY FRAUD OR GROSS NEGLIGENCE IN TAKING THE
INSTRUMENT: "
AS YOU HAVE NOT SET FORTH ANY SOUND BASIS UPON WHICH THE DECISIONS WE
HAVE PREVIOUSLY RENDERED IN THE MATTER MIGHT BE CONSIDERED AS BEING IN
ERROR, OUR SETTLEMENT OF MARCH 19, 1959, IS AGAIN SUSTAINED.
B-139244, JUL. 29, 1959
TO THE SECRETARY OF THE NAVY:
IN LETTER OF APRIL 3, 1959, FROM THE ASSISTANT SECRETARY OF THE NAVY
(PERSONNEL AND RESERVE FORCES), DECISION IS REQUESTED AS TO WHETHER THE
JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE TRAVEL AND
TRANSPORTATION ALLOWANCES FOR CERTAIN OFFICER AND ENLISTED PERSONNEL OF
THE NAVAL SERVICE SENTENCED TO A PUNITIVE DISCHARGE OR DISMISSAL BUT
PRIOR TO THE COMPLETION OF APPELLATE REVIEW, IN THE CIRCUMSTANCES SET
FORTH BELOW. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 59-9.
IN OUR DECISION OF DECEMBER 29, 1958, B-137883, IT WAS HELD THAT
SINCE PRISONERS RELEASED FROM CONFINEMENT IN DISCIPLINARY BARRACKS ON
"COMMANDANT'S PAROLE" CONTINUE TO BE MEMBERS OF THE UNIFORMED SERVICES
PENDING APPELLATE REVIEW ACTION, AND ARE TECHNICALLY IN LEGAL CUSTODY
AND CONTROL OF THE COMMANDANT, THEY MAY BE REGARDED AS "GENERAL
PRISONERS" WITHIN THE CONTEMPLATION OF SECTION 303 (E) OF THE CAREER
COMPENSATION ACT OF 1949, 37 U.S.C. 253 (E), AND SO ENTITLED TO RECEIVE
THE TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED BY THE SECRETARIES
CONCERNED UNDER THAT STATUTORY AUTHORITY. IN THE ASSISTANT SECRETARY'S
LETTER, REFERENCE IS MADE TO A SECNAV INSTRUCTION PREPARED BY THE BUREAU
OF NAVAL PERSONNEL WHICH WOULD AUTHORIZE LEAVE PENDING COMPLETION OF
APPELLATE REVIEW FOR MEMBERS OF THE NAVAL SERVICE WHO ARE SENTENCED TO A
PUNITIVE DISCHARGE OR DISMISSAL AND ARE NOT IN CONFINEMENT (BECAUSE THE
SENTENCE DID NOT INCLUDE CONFINEMENT OR THE PERIOD OF CONFINEMENT ENDED
WHILE THE APPELLATE REVIEW WAS STILL IN PROGRESS).
IT IS STATED THAT UNLESS A REHEARING TAKES PLACE, IT IS COMTEMPLATE
THAT SUCH MEMBERS WILL BE SEPARATED UNDER THE SENTENCE BY ADMINISTRATIVE
ACTION WHEN THE APPELLATE REVIEW IS COMPLETED WITHOUT REQUIRING THEIR
PRESENCE. THE PROPOSED INSTRUCTION, IT IS STATED, COVERS PERMISSIBLE
PROCEDURES FOR GRANTING LEAVE FOR BOTH OFFICERS AND ENLISTED MEMBERS
WITH AND WITHOUT LEAVE TO THEIR CREDIT, AND THE MEMBERS CONCERNED
INCLUDE THOSE WHO ARE NOT IN A PAY STATUS BECAUSE THEIR PERIOD OF
ENLISTMENT HAS EXPIRED. THE SUGGESTED AMENDMENT TO THE JOINT TRAVEL
REGULATIONS, IN THE FORM OF A NEW PARAGRAPH, IS AS FOLLOWS:
"5500 CONVICTED PERSONNEL, AWAITING COMPLETION OF APPELLATE REVIEW
"1. A MEMBER WHO IS AWAITING COMPLETION OF APPELLATE REVIEW OF HIS
OR HER COURT-MARTIAL SENTENCE TO A PUNITIVE DISCHARGE OR DISMISSAL AND
WHO IS GRANTED LEAVE IS ENTITLED TO TRANSPORTATION IN KIND AND MEAL
TICKETS TO HIS OR HER HOME OF RECORD OR PLACE AUTHORIZED FOR RESIDENCE
WHILE ON LEAVE.
"2. IN THE EVENT A REHEARING IS ORDERED FOLLOWING COMPLETION OF SUCH
TRAVEL, OR OFFICIAL TRAVEL IS REQUIRED TO BE PERFORMED FOR
HOSPITALIZATION, PHYSICAL EXAMINATION, DISCHARGE, OR OTHER PURPOSES, THE
MEMBER WILL BE FURNISHED TRANSPORTATION IN KIND AND MEAL TICKETS, IF
PRACTICABLE, FROM HIS OR HER HOME OF RECORD OR PLACE OF RESIDENCE TO THE
FACILITY CONCERNED AND FOR RETURN TRAVEL, IF APPROPRIATE. IN THE EVENT
IT IS IMPRACTICAL TO FURNISH TRANSPORTATION IN KIND AND MEAL TICKETS FOR
ANY OF THE LATER TRAVEL, REIMBURSEMENT WILL BE EFFECTED ON THE BASIS OF
$0.05 PER MILE FOR THE OFFICIAL DISTANCE AND $1.50 PER MEAL FOR THE
REQUIRED TRAVEL TIME ONLY. NO ALLOWANCES ARE AUTHORIZED OTHER THAN FOR
THE ACTUAL AND NECESSARY PERIODS OF TRAVEL.'
SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949 AUTHORIZES THE
PAYMENT UNDER REGULATIONS TO BE PROMULGATED BY THE SECRETARIES CONCERNED
OF TRAVEL AND TRANSPORTATION ALLOWANCES, WITHIN SPECIFIED LIMITATIONS,
GENERALLY ON THE BASIS OF TRAVEL BY MEMBERS OF THE UNIFORMED SERVICES
PERFORMED WHILE IN AN ACTIVE DUTY STATUS ON PERMANENT CHANGE OF STATION,
OR WHEN OTHERWISE AWAY FROM THEIR DESIGNATED POSTS OF DUTY ON PUBLIC
BUSINESS, OR WHILE PROCEEDING TO THE FIRST DUTY STATION OR AWAY FROM THE
LAST DUTY STATION INCIDENT TO ENTRANCE UPON OR DEPARTURE FROM ACTIVE
MILITARY DUTY. SECTION 303 (E) OF THE ACT GRANTS TO THE SECRETARIES
CONCERNED THE FURTHER AUTHORITY TO PROMULGATE REGULATIONS PRESCRIBING
THE ALLOWANCES AUTHORIZED IN SECTION 303 (A), BUT FOR PAYMENT TO
PERSONNEL IN CERTAIN DESIGNATED CIRCUMSTANCES OR CATEGORIES NOT
OTHERWISE FALLING WITHIN THE LIMITATIONS AND CIRCUMSTANCES OF
ENTITLEMENT CONTEMPLATED IN SECTION 303 (A). UNDER THAT AUTHORITY THE
SECRETARIES, WITH "DUE CONSIDERATION BEING GIVEN TO THE RIGHTS OF THE
GOVERNMENT AS WELL AS THOSE OF THE INDIVIDUAL," MAY BY REGULATIONS
PRESCRIBE THE TRAVEL AND TRANSPORTATION ALLOWANCES OTHERWISE PROVIDED
UNDER SECTION 303 (A) FOR PAYMENT TO PERSONS FALLING FAIRLY WITHIN THE
CATEGORY AND UNDER THE CIRCUMSTANCES SET FORTH IN SECTION 303 (E).
SINCE THE MEMBERS CONSIDERED IN THE DECISION OF DECEMBER 29, 1958,
ACTUALLY WERE PRISONERS WHO, ALTHOUGH ON COMMANDANT'S PAROLE, REMAINED
SUBJECT TO CONFINEMENT, IT WAS CONSIDERED THAT THEY WERE GENERAL
PRISONERS UNDER SECTION 303 (E). IT APPEARS, HOWEVER, THAT THOSE NOW
UNDER CONSIDERATION, INCLUDING THOSE WHOSE CONFINEMENT HAS ENDED, ARE
NOT HELD IN CUSTODY, AND ARE NOT SUBJECT TO INCARCERATION IN ANY WAY.
THERE WOULD APPEAR TO BE NO SOUND BASIS UPON WHICH IT COULD BE CONCLUDED
THAT UNDER THOSE CIRCUMSTANCES THEY ARE GENERAL PRISONERS WITHIN THE
CONTEMPLATION OF THAT SECTION. CONSEQUENTLY, SECTION 303 (E) FURNISHES
NO AUTHORITY FOR THE PROPOSED REGULATIONS, AND AUTHORITY, IF ANY, FOR
TRAVEL AND TRANSPORTATION ALLOWANCES IN THE CIRCUMSTANCES MUST BE FOUND
IN SECTION 303 (A).
ENTITLEMENT TO BENEFITS UNDER SECTION 303 (A) IS DEPENDENT UPON THE
EXISTENCE OF A TRAVEL STATUS INCIDENT TO TRAVEL ON PUBLIC BUSINESS OR IN
THE PUBLIC INTEREST AWAY FROM THE DESIGNATED POST OF DUTY. THE
GOVERNMENT HAS FOR MANY YEARS RECOGNIZED ITS OBLIGATION TO RETURN
MILITARY PERSONNEL TO THEIR HOME OR PLACE OF ENTERING THE SERVICE
INCIDENT TO A TERMINATION OF MILITARY SERVICE AND SECTION 303 (A) MAKES
SPECIFIC PROVISION IN RECOGNITION OF THAT OBLIGATION EVEN THOUGH
MILITARY STATUS MAY NOT EXIST AT THE TIME THE TRAVEL ACTUALLY IS
PERFORMED. THE CHANGE PROPOSED TO BE MADE IN THE REGULATIONS, HOWEVER,
DOES NOT APPEAR TO BE FOR THE PURPOSE OF PROVIDING TRANSPORTATION AT
GOVERNMENT EXPENSE INCIDENT TO THE TERMINATION OF AN ACTIVE MILITARY
STATUS, THE MAXIMUM WHICH COULD BE ALLOWED ON THAT BASIS BEING FOR THE
ONE TRIP FROM LAST STATION TO HOME OR TO THE PLACE FROM WHICH ORDERED TO
ACTIVE DUTY. RATHER, THE ASSISTANT SECRETARY'S LETTER INDICATES QUITE
CLEARLY THAT THE PERSONS INVOLVED WOULD BE IN A VOLUNTARY LEAVE
STATUS--- THOSE WHO HAVE UNUSED LEAVE TO THEIR CREDIT BEING IN A PAY
STATUS AND THOSE WITH NO LEAVE TO THEIR CREDIT BEING IN A
LEAVE-WITHOUT-PAY STATUS. CAREFUL CONSIDERATION HAS BEEN GIVEN TO THE
MATTERS STATED IN THE ASSISTANT SECRETARY'S LETTER BUT WE KNOW OF NO
STATUTORY AUTHORITY FOR TRANSPORTATION AT GOVERNMENT EXPENSE FOR TRAVEL
INCIDENT TO SUCH A LEAVE STATUS. ACCORDINGLY, IN THE ABSENCE OF SOME
APPROPRIATE CHANGE IN THE LAW, WE ARE OF THE OPINION THAT NO AUTHORITY
EXISTS FOR THE PROPOSED CHANGE IN THE REGULATIONS.
B-139340, JUL. 29, 1959
TO COMMERCIAL MOTOR FREIGHT, INC. :
FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 8, 1959, IN EFFECT
REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE OF FEBRUARY 9, 1959,
WHICH DISALLOWED YOUR CLAIM FOR $71.65, PER YOUR BILL SUPP-45690,
ASSERTED IN CONNECTION WITH THE TRANSPORTATION OF ORDNANCE STORES,
WEIGHING 17,250 POUNDS, FROM PROVIDENCE, RHODE ISLAND, TO CINCINNATI,
OHIO, UNDER GOVERNMENT BILL OF LADING NO. N-30864154, IN FEBRUARY 1956.
FOR YOUR SERVICES YOU CLAIMED AND WERE PAID $523.60, BASED UPON A
FIRST-CLASS RATE OF $3.74 PER 100 POUNDS, APPLIED TO A MINIMUM WEIGHT OF
14,000 POUNDS, AS PRESCRIBED IN ITEM 130 OF EASTERN CENTRAL MOTOR
CARRIERS ASSOCIATION TARIFF NO. 31-A. IN OUR AUDIT OF YOUR ORIGINAL
BILLING, WE APPLIED THE CLASS 70 (TRUCKLOAD) RATE OF $2.62 PER 100
POUNDS TO THE ACTUAL WEIGHT OF THE SHIPMENT, AS PRESCRIBED IN ITEM 73560
OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-3 AND TARIFF NO. 31-A,
MAKING AN AUTHORIZED PAYMENT THEREFOR OF $451.95. THE AMOUNT OF THE
DETERMINED OVERCHARGE OF $71.65 WAS COLLECTED BY SET-OFF FROM AMOUNTS
OTHERWISE DUE YOU.
IN YOUR LETTER OF APRIL 8, 1959, YOU REITERATE YOUR PREVIOUS
CONTENTION THAT EXCLUSIVE USE OF THE VEHICLE WAS REQUESTED BY THE NAVY,
AND THAT THE SHIPMENT MOVED UNDER SEAL NO. 2372 APPLIED BY NAVY
PERSONNEL. FURTHER, YOU CONTEND THAT THE EXCLUSIVE USE RULE HAS BEEN
SANCTIONED BY THE INTERSTATE COMMERCE COMMISSION, AND THAT TO ALLOW THE
THE GOVERNMENT A REFUND IN THE AMOUNT CLAIMED TO BE DUE FOR THIS
SHIPMENT WOULD BE CONTRARY TO LAW.
THE BILL OF LADING INVOLVED BORE THE FOLLOWING NOTATION:
"EXCLUSIVE USE OF VEHICLE AUTHORIZED "NAVY SEALS APPLIED TO
EQUIPMENT. DO NOT BREAK SEALS EXCEPT IN EMERGENCY OR WITH PRIOR
APPROVAL OF THE NAVY DEPARTMENT. IF BROKEN, APPLY CARRIER SEALS
IMMEDIATELY AND NOTIFY INSPECTOR OF NAVAL MATERIAL, C/O CROSLEY DIV.
CINCINNATI, OHIO.' "
ITEM 130 OF TARIFF NO. 31-A, UPON WHICH YOU RELY IN SUPPORT OF YOUR
CLAIM FOR CHARGES BASED ON THE EXCLUSIVE USE OF THE VEHICLE INVOLVED,
CONTAINS THE FOLLOWING PROVISION:
"EACH BILL OF LADING COVERING SHIPMENTS FOR WHICH EXCLUSIVE USE OF
VEHICLE IS PROVIDED MUST BE MARKED OR STAMPED AS FOLLOWS:
"EXCLUSIVE USE OF VEHICLE ORDERED BY SHIPPER
------------------------------------------------
(SHIPPER'S SIGNATURE)" "
BILL OF LADING N-30864154 IS NOT MARKED OR STAMPED IN THE REQUIRED
MANNER, THAT IS, THE NOTATION, AS MADE, DOES NOT ESTABLISH THAT
EXCLUSIVE USE WAS REQUESTED OR "ORDERED BY SHIPPER," NOR DOES THE
SHIPPER'S (OR ANY OTHER) SIGNATURE APPEAR UNDER THE BILL OF LADING
NOTATION, WHICH SHOWS ONLY THAT EXCLUSIVE USE WAS "AUTHORIZED," WITHOUT
ANY INDICATION AS TO THE PARTY RESPONSIBLE FOR THAT NOTATION. STRICT
COMPLIANCE WITH TARIFF REQUIREMENTS IS ESSENTIAL AS A CONDITION TO THEIR
APPLICABILITY. SEE SOUTHERN KNITWEAR MILLS, INC. V. ASSOCIATED
TRANSPORT, INC., 9 FED. CARRIER CASES 710; GUS BLASS CO. V. POWELL
BROS. TRUCK LINE, 53 N.C.C. 603, 605.
IN ADDITION TO THE FACT THAT THERE WAS A FAILURE TO PLACE THE
RELEVANT NOTATIONS ON THE BILL OF LADING IN THE FORM REQUIRED BY THE
TARIFF, SO AS TO UNEQUIVOCALLY ESTABLISH THAT EXCLUSIVE USE WAS DESIRED
AND ORDERED, IT IS NOTED THAT BILL OF LADING N-30864154 ALSO CONTAINS A
NOTATION, DIRECTLY ABOVE THE ONE TO THE EFFECT THAT THE EXCLUSIVE USE OF
VEHICLE WAS AUTHORIZED (NOT ORDERED), READING:
"RATE 262 MIN WT 16000 T/L CLASS 70 TARIFF ECM 31-A"
SUCH A NOTATION REFLECTS THE SHIPPER'S INTENTION THAT THE SHIPMENT BE
ACCORDED TRUCKLOAD SERVICE AT THE TRUCKLOAD RATE ($2.62 PER 100 POUNDS),
TO WHICH WE GAVE EFFECT IN COMPUTING THE ALLOWANCE CHARGES. THE
SITUATION SUGGESTS THAT THE 125 CANS OF ORDNANCE STORES, WEIGHING 17,250
POUNDS, AS DESCRIBED ON BILL OF LADING N-30864154, WERE SUFFICIENT TO
FILL THE VEHICLE USED TO CAPACITY. WHERE A VEHICLE IS FULLY LOADED,
EVEN IF IT BE ASSUMED, BUT NOT ADMITTED ON THIS RECORD, THAT THE
EXCLUSIVE USE OF THE VEHICLE CONTAINING THE SHIPMENT ORDERED IN
ACCORDANCE WITH THE TERMS OF THE PERTINENT TARIFF PROVISION, A SHIPPER
DERIVES NO BENEFIT FROM EXCLUSIVE USE, WHICH IS DESIGNED TO ACCORD
TRUCKLOAD SERVICE TO LESS-THAN-TRUCKLOAD SHIPMENTS. IN SUCH A CASE THE
APPLICABLE CHARGES PROPERLY SHOULD BE BASED ON THE TRUCKLOAD RATE
APPLIED TO THE ACTUAL WEIGHT, IF IN EXCESS OF THE MINIMUM WEIGHT, AS IN
THE PRESENT MATTER. SEE CURTIS LIGHTING, INC. V. MID-STATES FREIGHT
LINES, 303 I.C.C. 576.
OUR SETTLEMENT CERTIFICATE DISALLOWING YOUR CLAIM WAS CONSISTENT WITH
THE FOREGOING VIEWS AND, ACCORDINGLY, IT IS SUSTAINED.
B-139483, JUL. 29, 1959
TO MR. RALPH RUSSELL:
LETTERS IN YOUR BEHALF DATED MARCH 16, APRIL 9, AND MAY 1, 1959, TO
THE SECRETARY OF THE INTERIOR, CONCERNING OUR SETTLEMENT OF OCTOBER 28,
1958, OF YOUR CLAIM ON ACCOUNT OF SUSPENSION AND REMOVAL AS AN EMPLOYEE
OF THE FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR, HAVE BEEN
REFERRED HERE FOR CONSIDERATION.
OUR RECORDS SHOW THAT, FOLLOWING YOUR SUSPENSION ON OCTOBER 13, 1953,
YOU WERE TERMINATED ON APRIL 9, 1954, PURPORTEDLY UNDER AUTHORITY OF THE
ACT OF AUGUST 26, 1950, 5 U.S.C. 22-1, AND EXECUTIVE ORDER NO. 10450,
AND THAT YOU WERE RESTORED ON JULY 1, 1958, AS A RESULT OF THE DECISION
OF THE UNITED STATES SUPREME COURT IN COLE V. YOUNG. 351 U.S. 536.
OUR SETTLEMENT OF OCTOBER 28, 1958, ALLOWED BACK PAY FOR THE PERIOD
OF SUSPENSION AND REMOVAL UNDER SECTION 6 (B) OF THE ACT OF AUGUST 24,
1912, AS ADDED BY THE ACT OF JUNE 10, 1948 (PUBLIC LAW 623), 5 U.S.C.
652 (B), AND, BECAUSE OF EXPRESS TERMS OF THE STATUTE, WE ADVISED ON THE
SETTLEMENT THAT ANNUAL LEAVE DOES NOT ACCRUE DURING PERIODS OF
SUSPENSION. THE BACK PAY WAS COMPUTED AT THE RATE OF COMPENSATION
RECEIVED ON THE DATE OF SUSPENSION, AS PROVIDED BY THE STATUTE.
THE ITEMS CONCERNING WHICH RECONSIDERATION IS REQUESTED ARE DISPOSED
OF AS FOLLOWS:
1. CASH PAYMENTS FOR ANNUAL LEAVE WHICH HAVE ACCRUED DURING THE
PERIOD OF SUSPENSION AND REMOVAL.
WE CONCLUDED IN OUR DECISION OF JULY 22, 1959, TO THE POSTMASTER
GENERAL, COPY ENCLOSED, THAT WE WOULD CONSIDER COLE V. YOUNG RESTORATION
CASES AS FALLING WITHIN THE BACK PAY PROVISIONS OF THE ACT OF AUGUST 26,
1950, CITED ABOVE. WE HAVE CONSTRUED THAT STATUTE AS AUTHORIZING THE
CREDITING OF LEAVE FOR PERIODS OF SUSPENSION AND REMOVAL THEREUNDER,
SUBJECT TO STATUTORY CEILINGS ON THE ACCUMULATION OF LEAVE. 31 COMP.
GEN. 58; 35 ID. 121. WHILE THE COURT OF CLAIMS HELD IN HYNNING V.
UNITED STATES, DECIDED MARCH 5, 1958, THAT IT WAS EMPOWERED TO AWARD
JUDGMENT FOR THE MONEY VALUE OF ABOVE-CEILING ANNUAL LEAVE ACCRUALS, WE
HAVE DECIDED TO ADHERE TO THE POSITION WE TOOK IN 35 COMP. GEN. 121,
SUPRA, AT LEAST UNTIL FURTHER JUDICIAL PRECEDENT REQUIRES US TO
RECONSIDER OUR POSITION. 38 COMP. GEN. 249, 251. THEREFORE, SINCE THE
ACCUMULATION OF 439 HOURS OF ANNUAL LEAVE TO YOUR CREDIT ON THE DATE OF
SUSPENSION, WHICH NOW HAS BEEN RECREDITED, IS THE MAXIMUM PERMITTED BY
LAW (5 U.S.C. 2066 (A) (, NO ADDITIONAL ANNUAL LEAVE MAY BE CREDITED.
IN ANY EVENT, THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944,
AS AMENDED, 5 U.S.C. 61B AND G, AUTHORIZES CASH PAYMENTS FOR LEAVE ONLY
IN THE CASES OF EMPLOYEES WHO ARE SEPARATED FROM SERVICE, WHO ENTER UPON
ACTIVE SERVICE IN THE ARMED FORCES, OR WHO DIE; AND NONE OF THOSE
CONDITIONS HAVE OCCURRED IN YOUR CASE SINCE THE DATE OF RESTORATION.
THERE IS NO STATUTORY CEILING ON THE ACCUMULATION OF SICK LEAVE, AND
WE SHALL ADVISE THE SECRETARY OF THE INTERIOR THAT WE HAVE NO OBJECTION
TO HIS CREDITING TO YOUR ACCOUNT OF SICK LEAVE ACCRUAL FOR THE PERIOD OF
SUSPENSION AND TERMINATION.
2. RECOMPUTATION OF BACK PAY TO ALLOW CREDIT FOR PERIODIC STEP
INCREASES, STATUTORY BASE PAY INCREASED AND THE LONGEVITY INCREASE WHICH
WOULD HAVE BECOME DUE DURING THE PERIOD OF SUSPENSION AND TERMINATION.
THE BACK PAY FORMULA PRESCRIBED BY THE ACT OF AUGUST 26, 1950, SUPRA,
IS AS FOLLOWS:
"* * * AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNT SUCH
PERSON WOULD NORMALLY HAVE EARNED DURING THE PERIOD OF SUCH SUSPENSION
OR TERMINATION, AT THE RATE HE WAS RECEIVING ON THE DATE OF SUSPENSION
OR TERMINATION, AS APPROPRIATE, AND THE INTERIM NET EARNINGS OF SUCH
PERSON.'
THE UNDERSCORED PORTION OF THE STATUTE NECESSARILY PRECLUDES THE
TAKING INTO ACCOUNT OF ANY CHANGE IN THE RATE OF COMPENSATION WHICH
MIGHT HAVE OCCURRED DURING A PERIOD OF SUSPENSION OR TERMINATION. 38
COMP. GEN. 132; 35 ID. 121; HYNNING V. UNITED STATES, SUPRA. SINCE
BACK PAY WAS COMPUTED IN THIS CASE UPON THE BASIS OF THE RATE YOU WERE
RECEIVING ON THE DATE OF SUSPENSION, NO REVISION OF THE SETTLEMENT IN
THAT RESPECT IS REQUIRED.
3. REFUND OF DEDUCTIONS FROM BACK PAY FOR FEDERAL EMPLOYEES GROUP
LIFE INSURANCE.
SECTION 5 (A) OF THE LIFE INSURANCE ACT, 5 U.S.C. 2094 (A), PROVIDES
FOR AUTOMATIC COVERAGE OF ELIGIBLE EMPLOYEES UNLESS WRITTEN NOTICE IS
GIVEN OF A DESIRE NOT TO BE COVERED AND, ALSO, FOR THE WITHHOLDING OF
PREMIUMS FROM SALARY PAYMENTS. THE REGULATIONS OF THE CIVIL SERVICE
COMMISSION ISSUED PURSUANT TO THE ACT, 5 CFR 37.3, FIXED THE EFFECTIVE
DATE AS THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN AFTER AUGUST
28, 1954, WHICH, GENERALLY, WAS AUGUST 29, 1954.
YOU WERE NOT ACTUALLY IN SERVICE ON THE EFFECTIVE DATE OF THE ACT.
HOWEVER, YOUR RESTORATION WITH BACK PAY (NOW HELD TO BE PROPERLY FOR
DETERMINATION UNDER THE 1950 STATUTE) HAS THE EFFECT OF CONSTITUTING YOU
AN EMPLOYEE OF THE UNITED STATES RETROACTIVELY EFFECTIVE TO THE DATE OF
TERMINATION, SO THAT, IN RETROSPECT, YOU WERE AN EMPLOYEE SUBJECT TO THE
LIFE INSURANCE ACT ON AUGUST 29, 1954. WE NOTE THAT THE REGULATIONS OF
THE CIVIL SERVICE COMMISSION, 5 CFR 22.306, RELATING TO APPEALS OF
VETERANS PREFERENCE EMPLOYEES NOW PROVIDE FOR POSTHUMOUS CONSIDERATION
OF APPEALS AND ISSUANCE OF RETROACTIVE, CORRECTIVE RECOMMENDATIONS IN
THE CASE OF DECEASED PPELLANTS; AND WE CANNOT SAY THAT THE COURTS WOULD
NOT TAKE THE SAME VIEW IN SUITS CONTESTING THE VALIDITY OF REMOVALS FROM
FEDERAL SERVICE. THEREFORE, IT IS POSSIBLE THAT INSURANCE BENEFITS
(WHICH INCLUDE PAYMENTS ON ACCOUNT OF DISMEMBERMENT AS WELL AS DEATH)
MAY BECOME RETROACTIVELY AVAILABLE IN THE CASES OF INDIVIDUALS WHOSE
REMOVALS ARE APPEALED. THERE BEING POTENTIAL COVERAGE, THE ASSESSMENT
OF PREMIUMS IS, IN OUR OPINION, REQUIRED.
FOR THE REASONS STATED ABOVE, WE CONCLUDE THAT THE DEDUCTION FOR LIFE
INSURANCE IN THE SETTLEMENT OF YOUR CLAIM WAS PROPER AND THE ACTION IS
SUSTAINED.
ANY FURTHER REPRESENTATION HERE BY AN ATTORNEY OR AGENT IN CONNECTION
WITH YOUR CLAIM SHOULD BE ACCOMPANIED BY A DULY EXECUTED POWER OF
ATTORNEY OR OTHER DOCUMENTARY EVIDENCE OF THE ATTORNEY'S OR AGENT'S
AUTHORITY TO ACT FOR YOU. 4 CFR 1.8, 31.3.
B-139514, JUL. 29, 1959
TO THE SECRETARY OF THE AIR FORCE:
REFERENCE IS MADE TO LETTER OF APRIL 22, 1959, FROM THE ASSISTANT
SECRETARY OF THE AIR FORCE, PDTATAC CONTROL NO. 59-11, REQUESTING A
DECISION AS TO WHETHER THE SECRETARIES CONCERNED HAVE AUTHORITY TO AMEND
CHAPTER 10 OF THE JOINT TRAVEL REGULATIONS TO AUTHORIZE PAYMENT OF A
TRAILER ALLOWANCE TO A MEMBER OF THE UNIFORMED SERVICES INCIDENT TO HIS
TRANSFER FROM A STATION IN THE UNITED STATES TO A HOSPITAL FOR TREATMENT
WHEN IT IS APPROPRIATELY CERTIFIED THAT THE PERIOD OF HOSPITALIZATION IS
EXPECTED TO BE PROLONGED.
THE LETTER OF THE ASSISTANT SECRETARY IS, IN PART, AS FOLLOWS:
"THE TRANSFER OF A MEMBER FROM OVERSEAS TO A HOSPITAL IN THE UNITED
STATES FOR TREATMENT IS REGARDED AS A PERMANENT CHANGE OF STATION AND
INCIDENT THERETO TRANSPORTATION OF DEPENDENTS, HOUSEHOLD GOODS, AND
PAYMENT OF A DISLOCATION ALLOWANCE, OR PAYMENT OF A TRAILER ALLOWANCE IN
LIEU OF THE LATTER TWO ENTITLEMENTS IS AUTHORIZED. THE TRANSFER FROM A
STATION IN THE UNITED STATES TO A HOSPITAL FOR TREATMENT IS NOT REGARDED
AS A PERMANENT CHANGE OF STATION. HOWEVER, CONTINGENT UPON THE ISSUANCE
OF A CERTIFICATE THAT THE PERIOD OF HOSPITALIZATION IS EXPECTED TO BE
PROLONGED, TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS IS
AUTHORIZED "AS FOR A PERMANENT CHANGE OF STATION" IN ACCORDANCE WITH
PARAGRAPHS 7004-1 AND 80094F (2), JOINT TRAVEL REGULATIONS.
THERE IS NO SIMILAR PROVISION IN THE REGULATIONS FOR THE PAYMENT OF A
TRAILER ALLOWANCE "AS FOR A PERMANENT CHANGE OF STATION.'
SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED,
37 U.S.C. 253 (C), PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES WHEN
ORDERED TO MAKE A PERMANENT CHANGE OF STATION SHALL BE ENTITLED TO
CERTAIN ALLOWANCES IN ADDITION TO THEIR OWN TRAVEL ALLOWANCES. THE
ADDITIONAL ALLOWANCES, SUBJECT TO REGULATION BY THE SECRETARIES, INCLUDE
TRANSPORTATION OF DEPENDENTS, TRANSPORTATION, INCLUDING PACKING AND
CRATING, OF BAGGAGE AND HOUSEHOLD EFFECTS, AND A DISLOCATION
ALLOWANCE. IT FURTHER PROVIDES THAT IN LIEU OF TRANSPORTATION OF
BAGGAGE AND HOUSEHOLD EFFECTS, A MEMBER WHO TRANSPORTS A HOUSE TRAILER
OR MOBILE DWELLING WITHIN THE CONTINENTAL UNITED STATES FOR USE AS A
RESIDENCE AND WHO WOULD OTHERWISE BE ENTITLED TO TRANSPORTATION OF
BAGGAGE AND HOUSEHOLD EFFECTS SHALL, UNDER REGULATIONS PRESCRIBED BY THE
SECRETARY CONCERNED, BE ENTITLED TO A REASONABLE ALLOWANCE, NOT TO
EXCEED 20 CENTS PER MILE, OR TO THE DISLOCATION ALLOWANCE, WHICHEVER HE
ELECTS. THE LEGISLATIVE HISTORY OF THE LATTER PROVISION SHOWS THAT IT
WAS INTENDED TO MAKE IT POSSIBLE FOR A MEMBER WHO HAS ALL HIS FURNITURE
IN A TRAILER TO RECEIVE COMPENSATION FOR MOVING HIS FURNITURE IN THE
TRAILER INSTEAD OF MOVING IT IN A SEPARATE VAN. SEE 101 CONGRESSIONAL
RECORD 3430, (MARCH 30, 1955).
PARAGRAPH 8254-2, CHANGE 82, DATED JULY 1, 1959 (FORMERLY PARAGRAPH
8009-4F (2) (, JOINT TRAVEL REGULATIONS, ISSUED PURSUANT TO SECTION 303
(C) OF THE CAREER COMPENSATION ACT OF 1949, PROVIDES AS FOLLOWS:
"TO HOSPITALS FROM PLACES WITHIN THE UNITED STATES. FOR MEMBERS ON
ACTIVE DUTY WHO ARE TRANSFERRED FROM EITHER A PERMANENT OR TEMPORARY
DUTY STATION, OR FROM A HOSPITAL WHERE THEY ARE LISTED AS PATIENTS, TO A
HOSPITAL FOR FURTHER OBSERVATION AND TREATMENT, SHIPMENT OF HOUSEHOLD
GOODS FROM THE LAST OR ANY PREVIOUS PERMANENT DUTY STATION AND/OR POINTS
OF STORAGE TO THE CITY OR TOWN IN WHICH SUCH HOSPITAL IS LOCATED, BUT
NOT TO THE HOSPITAL ITSELF, IS AUTHORIZED AS FOR A PERMANENT CHANGE OF
STATION, PROVIDED THAT THE COMMANDING OFFICER OF THE HOSPITAL, AFTER AN
EVALUATION OF THE CASE, CERTIFIES THAT THE PERIOD OF TREATMENT IN THAT
HOSPITAL CAN BE EXPECTED TO BE PROLONGED. THIS CERTIFICATE WILL BE
FURNISHED IN ADDITION TO OTHER SUPPORTING PAPERS REQUIRED WITH THE
APPLICATION FOR TRANSPORTATION OF HOUSEHOLD GOODS (STANDARD FORM 116).'
SINCE THE ABOVE-QUOTED REGULATIONS, ISSUED IN ACCORDANCE WITH THE
STATUTE, AUTHORIZE THE SHIPMENT OF HOUSEHOLD EFFECTS IN THE
CIRCUMSTANCES THERE STATED AS FOR A PERMANENT CHANGE OF STATION, AND
SINCE THE STATUTE AUTHORIZES THE PAYMENT OF A TRAILER ALLOWANCE TO A
MEMBER WHO WOULD
OTHERWISE BE ENTITLED TO SHIPMENT OF HOUSEHOLD EFFECTS, IF HE ELECTS
TO RECEIVE THE TRAILER ALLOWANCE IN LIEU OF SUCH SHIPMENT, IT IS
CONCLUDED THAT THE PROPOSED AMENDMENT TO CHAPTER 10 OF THE JOINT TRAVEL
REGULATIONS WOULD COME WITHIN THE SCOPE OF THE APPLICABLE STATUTE.
ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE.
B-139748, JUL. 29, 1959
TO MAJOR BERNARD J. HUSSEY, AUS, RETIRED:
UPON THE RECEIPT OF YOUR LETTER DATED MAY 25, 1959, STATING THAT OUR
DECISION OF DECEMBER 19, 1956, B-129742,"OVERRULES THE COMPLETE FINDINGS
OF THE ARMY PHYSICAL RETIRING BOARD OF 30 JUNE 1951" IN YOUR CASE AND
ALSO INDICATING THAT THE SAME DECISION HELD YOUR "RETIREMENT FOR
PERMANENT PHYSICAL DISABILITY OF 30 JUNE 1951, AFTER 25 YEARS SERVICE,
WAS ILLEGAL" THERE WAS REQUESTED A FULL AND COMPLETE REPORT CONCERNING
YOUR MILITARY RETIRED PAY STATUS.
THE INFORMATION RECEIVED ON YOUR CASE MAY BE SUMMARIZED AS FOLLOWS:
(1) EFFECTIVE JULY 18, 1950, YOU WERE RELEASED FROM ASSIGNMENT AND
ACTIVE DUTY AS MAJOR, AUS (PARAGRAPH 163, SPECIAL ORDERS NO. 198,
HEADQUARTERS, CAMP STONEMAN, CALIFORNIA, DATED JULY 17, 1950). ON JULY
19, 1950, YOU MADE APPLICATION FOR RETIREMENT AS AN ENLISTED MAN WITH
OVER 20 YEARS' ACTIVE SERVICE, UNDER AUTHORITY OF SECTION 4, ACT OF
OCTOBER 6, 1945, 59 STAT. 539, AS AMENDED BY SECTION 6 (A) OF THE ACT
APPROVED AUGUST 10, 1946, 60 STAT. 995, 996.
(2) YOUR APPLICATION WAS APPROVED AND IN PARAGRAPH 78, DEPARTMENT OF
THE ARMY SPECIAL ORDERS NO. 197, DATED OCTOBER 10, 1950, YOU WERE
DIRECTED TO BE PLACED ON THE RETIRED LIST IN THE ENLISTED GRADE OF
MASTER SERGEANT AND TRANSFERRED TO THE ENLISTED RESERVE CORPS, BOTH
EFFECTIVE OCTOBER 31, 1950. PARAGRAPH 76 FURTHER PLACED YOU ON ACTIVE
DUTY EFFECTIVE NOVEMBER 1, 1950, IN YOUR ENLISTED RESERVE CORPS GRADE
AND STATUS FOR A PERIOD OF 21 MONTHS.
(3) A MESSAGE DATED NOVEMBER 3, 1950, WAS SENT BY THE COMMANDING
OFFICER, CAMP STONEMAN, CALIFORNIA, REQUESTING THAT YOUR RETIREMENT
ORDERS BE REVOKED AND IN PARAGRAPH 75, DEPARTMENT OF THE ARMY SPECIAL
ORDERS NO. 216, DATED NOVEMBER 6, 1950, IT WAS ATTEMPTED TO REVOKE THE
PERTINENT PROVISIONS OF PARAGRAPH 78, DEPARTMENT OF THE ARMY SPECIAL
ORDERS NO. 197, OCTOBER 10, 1950, INSOFAR AS APPLICABLE TO YOU.
(4) PARAGRAPH 76 OF DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 118,
DATED JUNE 15, 1951, DIRECTED YOUR RETIREMENT IN THE GRADE OF MAJOR,
AUS, EFFECTIVE JUNE 30, 1951, BY REASON OF PHYSICAL DISABILITY (SHOWN AS
20 PERCENTUM) PURSUANT TO THE PROVISIONS OF SECTIONS 402 AND 409 OF THE
CAREER COMPENSATION ACT OF 1949. PARAGRAPH 65 FURTHER DIRECTED AN
HONORABLE DISCHARGE FROM YOUR ENLISTED GRADE OF MASTER SERGEANT,
EFFECTIVE JUNE 30, 1951.
(5) THE RECORD INDICATES THAT YOU WERE HONORABLY DISCHARGED AS MASTER
SERGEANT EFFECTIVE JUNE 30, 1951, AND THAT EFFECTIVE FROM JULY 1, 1951,
YOU RECEIVED RETIRED PAY COMPUTED AT THE RATE OF 62 1/2 PERCENT
(REPRESENTING THE TOTAL OF YOUR ACTIVE SERVICE TO JUNE 30, 1951, 24
YEARS, 10 MONTHS AND 7 DAYS, EQUALS 25, TIMES 2 1/2 PERCENT) OF THE
ACTIVE-DUTY PAY OF A MAJOR WITH OVER 22, BUT NOT OVER 26, CUMULATIVE
YEARS OF SERVICE.
THE LEGALITY OF THE DEPARTMENT OF THE ARMY ACTION TAKEN IN YOUR CASE
IN PLACING YOU ON THE DISABILITY RETIRED LIST, PURPORTEDLY UNDER
AUTHORITY OF SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF
1949, 63 STAT. 818 AND 823, RESPECTIVELY, IS GOVERNED NECESSARILY BY
YOUR MILITARY STATUS ON JUNE 30, 1951. ON THAT DATE YOU WERE SERVING ON
ACTIVE DUTY IN YOUR ENLISTED RESERVE CORPS GRADE AND STATUS AS A RETIRED
ENLISTED MAN. SINCE YOU WERE ALREADY IN A RETIRED STATUS ON JUNE 30,
1951, THE PROVISIONS OF SECTION 402 (F) OF THE 1949 LAW, 63 STAT. 820,
DO NOT APPLY TO YOUR CASE. ALSO, SINCE THE PERCENTAGE OF YOUR
DISABILITY RATING IS LESS THAN 30 PERCENT, YOUR STATUS ON JUNE 30, 1951,
DID NOT FULFILL THE REQUIREMENTS PRESCRIBED IN THE LAST PROVISO
CONTAINED IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, AND
IT IS NOT SHOWN THAT YOU INCURRED THAT DISABILITY WHILE SERVING ON
ACTIVE DUTY AFTER RETIREMENT. ACCORDINGLY, ON THE FACTS OF RECORD, NO
STATUTORY BASIS IS PERCEIVED IN SUPPORT OF THE DEPARTMENT OF THE ARMY
ACTION WHICH DIRECTED THAT YOU BE PLACED ON THE DISABILITY RETIRED LIST
EFFECTIVE JUNE 30, 1951.
THUS, UPON A SUBSEQUENT REVIEW OF YOUR MILITARY RECORDS BY THE
DEPARTMENT OF THE ARMY (DISCLOSING THE FACTS RELATED ABOVE), IT WAS
DETERMINED THAT THE PROVISIONS OF PARAGRAPH 65, DEPARTMENT OF THE ARMY
SPECIAL ORDERS NO. 118, DATED JUNE 15, 1951, ATTEMPTING TO PLACE YOU IN
AN OFFICER GRADE ON THE DISABILITY RETIRED LIST EFFECTIVE JUNE 30, 1951,
WERE LEGALLY INEFFECTIVE, SINCE YOUR RETIREMENT AS AN ENLISTED MEMBER
PURSUANT TO THE PROVISIONS OF SECTION 4, ACT OF OCTOBER 6, 1945, AS
AMENDED, HAD PREVIOUSLY BECOME EFFECTIVE ON NOVEMBER 1, 1950. COPIES OF
THE CORRESPONDENCE ON YOUR CASE FURNISHED TO US BY THE DEPARTMENT OF THE
ARMY, DISCLOSES THAT REFERENCE WAS MADE THEREIN TO OUR DECISION OF
DECEMBER 19, 1956, B-129742. THAT DECISION RELATES EXCLUSIVELY TO THE
MEASURE OF REIMBURSEMENT AUTHORIZED FOR TRAVEL OF DEPENDENTS UPON
RETIREMENT, AND, THEREFORE, HAS NO DIRECT CONNECTION WITH YOUR MILITARY
RETIRED PAY STATUS.
THAT DECISION, HOWEVER, CORRECTLY ILLUSTRATES AND APPLIES THE GENERAL
RULE THAT VALID RETIREMENT ORDERS ISSUED BY COMPETENT AUTHORITY MAY NOT
BE REVOKED AFTER THE EFFECTIVE DATE OF RETIREMENT. IN THIS CONNECTION,
SEE THE ENCLOSED COPY OF DECISION DATED JULY 15, 1957, B-131674 (37
COMP. GEN. 19), TO THE SECRETARY OF THE ARMY, WHEREIN THE RULE IS STATED
AS FOLLOWS:
"* * * ONCE THE RETIREMENT HAS BECOME EFFECTIVE, ANY ACTION TAKEN TO
CANCEL THE RETIREMENT OR TO REVOKE THE ORDER RETIRING THE MEMBER IN
ORDER TO PERMIT RETIREMENT UNDER ANOTHER PROVISION OF LAW WOULD BE
LEGALLY INEFFECTIVE.'
ALSO, IT WAS FURTHER POINTED OUT IN THE DECISION OF JULY 15, 1957,
THAT:
"ONLY "SUBSTANTIAL NEW EVIDENCE" RELATING DIRECTLY TO THE CONDITIONS
OF ENTITLEMENT TO THE NONDISABILITY RETIREMENT OR THE INVALIDITY OF THE
RETIREMENT ORDER DUE TO WANT OF AUTHORITY IN THE OFFICER ISSUING IT
COULD CONSTITUTE A BASIS FOR REVOKING THE RETIREMENT ORDER IF
ENTITLEMENT TO SUCH RETIREMENT DID NOT IN FACT EXIST OR THE RETIREMENT
ORDER WAS NOT ISSUED BY ONE HAVING AUTHORITY TO DO SO.'
THE FACTS OF YOUR CASE CLEARLY BROUGHT YOUR RETIRED-PAY STATUS WITHIN
THE RULE REFLECTED IN THE DECISIONS OF DECEMBER 19, 1956, AND JULY 15,
1957, ABOVE REFERRED TO. THERE APPARENTLY WAS NO INVALIDITY IN THE
RETIREMENT ORDERS OF OCTOBER 10, 1950, AND HENCE, YOUR RETIREMENT AS AN
ENLISTED MEMBER BECAME EFFECTIVE ON NOVEMBER 1, 1950. SINCE THE ATTEMPT
TO REVOKE THOSE ORDERS WAS INEFFECTIVE, THE PROVISIONS OF DEPARTMENT OF
THE ARMY SPECIAL ORDERS NO. 118, DATED JUNE 15, 1951, DIRECTING YOUR
RETIREMENT IN THE COMMISSIONED GRADE OF MAJOR, AUS, EFFECTIVE JUNE 30,
1951, BY REASON OF PHYSICAL DISABILITY WERE ALSO LEGALLY INEFFECTIVE.
CONSEQUENTLY, YOU HAVE BEEN ENTITLED TO RECEIVE RETIRED PAY EFFECTIVE
FROM JULY 1, 1951, COMPUTED AT THE RATE OF 62 1/2 PERCENT OF THE
ACTIVE-DUTY PAY OF AN ENLISTED MEMBER IN PAY GRADE E-7, WITH OVER 22,
BUT NOT OVER 26, CUMULATIVE YEARS OF SERVICE.
THE RECORD INDICATES THAT ON AUGUST 23, 1956, YOU COMPLETED A TOTAL
OF 30 YEARS OF SERVICE (ALL PRIOR ACTIVE SERVICE, PLUS YOUR INACTIVE
SERVICE ON THE RETIRED LIST) AND THAT PURSUANT TO THE PROVISIONS OF 10
U.S.C. 3964, 70A STAT. 231, AS AMENDED, YOU WERE ADVANCED (DEPARTMENT OF
THE ARMY SPECIAL ORDERS NO. 69, DATED APRIL 8, 1959) TO THE COMMISSIONED
GRADE OF MAJOR ON THE RETIRED LIST, EFFECTIVE AUGUST 24, 1956.
ACCORDINGLY, THE RECORD ESTABLISHES THAT YOU HAVE BEEN OVERPAID THE
DIFFERENCE (AMOUNTING TO $9,061.60) BETWEEN RETIRED PAY COMPUTED ON THE
BASIS OF ENLISTED GRADE E-7, AND THAT COMPUTED ON THE BASIS OF THE
COMMISSIONED GRADE OF MAJOR, FOR THE PERIOD JULY 1, 1951, TO AUGUST 23,
1956, INCLUSIVE. THE RECORD ALSO INDICATES THAT PURSUANT TO THE
AUTHORITY PRESCRIBED IN THE ACT OF JULY 15, 1954, 68 STAT. 482, 5 U.S.C.
46D (1952 ED.SUPP. II) MONTHLY DEDUCTIONS ARE BEING MADE IN YOUR
CURRENT RETIRED PAY BY THE DEPARTMENT OF THE ARMY TO EFFECT COLLECTION
OF THE OVERPAYMENTS MADE TO YOU.
IN THE CIRCUMSTANCES ABOVE STATED, IT WOULD APPEAR THAT YOUR MOST
EFFECTIVE REMEDY IN THE MATTER MAY BE TO REQUEST THE ARMY BOARD FOR THE
COLLECTION OF MILITARY RECORDS TO MAKE AN APPROPRIATE CORRECTION IN YOUR
MILITARY RECORDS.
B-139916, JUL. 29, 1959
TO WALTER FREEDMAN, ESQUIRE:
IN A LETTER DATED JUNE 15, 1959, YOU PROTESTED, ON BEHALF OF SOCIETA
INDUSTRIALE DEMOLIZIONI RIPARAZIONI MARITIME (SIDEMAR), THE ACTION OF
THE NAVY DEPARTMENT IN DISQUALIFYING SIDEMAR'S BID FOR LIGHT CARRIERS
OFFERED FOR SALE BY THE GOVERNMENT. IN ADDITION TO A FULL REPORT FROM
THE NAVY DEPARTMENT, WE RECEIVED THE VIEWS OF THE DEPARTMENT OF STATE.
ON MAY 1, 1959, UNDER INVITATION NO. B-202-59-131 THE NEW YORK NAVAL
SHIPYARD, BROOKLYN, NEW YORK, ISSUED AN INVITATION FOR THE SALE OF
UTILITY AIRCRAFT CARRIERS CLASSIFIED AS AUXILIARY VESSELS. PARAGRAPH 24
OF THE INVITATION PROVIDES THAT:
"THE PURCHASER MAY NOT EXPORT THE VESSEL (OR VESSELS) FROM THE
CONTINENTAL UNITED STATES, IT'S TERRITORIES OR POSSESSIONS WITHOUT
OBTAINING THE NECESSARY APPROVAL AND LICENSE. EXPORT APPROVAL MUST BE
OBTAINED FROM THE DEPARTMENT OF STATE, OFFICE OF MUNITIONS CONTROL,
WASHINGTON 25, D.C. AND THE LICENSE MUST BE OBTAINED FROM THE
DEPARTMENT OF COMMERCE, LICENSE OFFICE, WASHINGTON 25, D.C. IN
ADDITION, IF THE PURCHASER IS AN ALIEN, HE AGREES TO OBTAIN THE APPROVAL
OF THE UNITED STATES DEPARTMENT OF COMMERCE, MARITIME ADMINISTRATION
PRIOR TO REMOVAL OF THE VESSEL FROM THE UNITED STATES, IT'S TERRITORIES
AND POSSESSIONS. THE DEPARTMENT OF THE NAVY DOES NOT GUARANTEE THAT
EITHER THE LICENSES REFERRED TO HEREIN, OR THE APPROVAL OF THE UNITED
STATES MARITIME ADMINISTRATION, WILL BE GRANTED.'
IT APPEARS THAT PARAGRAPH 24 WAS INCLUDED TO ADVISE FOREIGN BIDDERS
OF THE OBSTACLES INCIDENT TO EXPORTATION AND TO DISCLAIM ANY DUTY OF THE
NAVY TO GUARANTEE GRANTING OF THE NECESSARY LICENSES. SIDEMAR ENTERED A
SEPARATE BID FOR EACH CARRIER, BUT INSERTED THE FOLLOWING PHRASE WITH
EACH ITEM:
"SUBJECT TO RECEIVING ALL PERMITS NECESSARY FOR EXPORTING THIS VESSEL
TO ITALY.'
ALTHOUGH THE SIDEMAR BID WAS HIGHEST ON THREE OF THE FOUR ITEMS, IT
WAS REJECTED AS NON-RESPONSIVE (A QUALIFIED BID) AND THE BID DEPOSIT
RETURNED. SIDEMAR REQUESTED, AFTER BID OPENING, THAT THE QUALIFYING
PHRASES BE WITHDRAWN.
IN HIS LETTER THE ASSISTANT SECRETARY OF STATE INCLUDED THE FOLLOWING
PASSAGE:
"FROM THE INFORMATION MADE AVAILABLE TO THE DEPARTMENT CONCERNING THE
CASE, IT WOULD APPEAR THAT THE DIFFICULTY CONCERNING THE ITALIAN BID
RESULTED FROM UNDERSTANDABLE ADMINISTRATIVE UNCERTAINTY IN INTERPRETING
THE REGULATIONS IMPLEMENTING THE RECENT DECISION TO PERMIT FOREIGN AS
WELL AS DOMESTIC BIDDING ON CERTAIN GOVERNMENT MATERIAL. IT SEEMS THAT
THE ARRANGEMENTS RELATING TO THE BIDDING, WHILE APPARENTLY CLEAR WHEN
VIEWED FROM THE STANDPOINT OF DOMESTIC BIDDERS, CONTAINED AN ELEMENT OF
UNCERTAINTY IN SO FAR AS THE ITALIAN BIDDER WAS CONCERNED. THE
UNCERTAINTY ARISES FROM THE FACT THAT ALTHOUGH THE OFFER REPRESENTED A
POTENTIAL TRANSACTION WITH THE UNITED STATES GOVERNMENT, THROUGH ONE
GOVERNMENT AGENCY, A REQUIREMENT WAS SET FORTH IN PARAGRAPH 24 OF THE
CONDITIONS PROVIDING THAT THE PURCHASER COULD NOT EXPORT THE MATERIAL
WITHOUT FIRST OBTAINING APPROVAL AND LICENSE FROM THE UNITED STATES
GOVERNMENT, THROUGH ANOTHER AGENCY THEREOF. AS SUCH APPROVAL AND
LICENSES CAN NOT BE OBTAINED IN ADVANCE, SUCH A CONDITION WOULD BE
REASONABLE ONLY IF THE FOREIGN BIDDER WERE ENTITLED TO MAKE HIS BID
SUBJECT TO THE SAME CONDITION ESTABLISHED BY THE GOVERNMENT. IT WOULD
NOT APPEAR TO BE A REASONABLE CONDITION OF A SALE TO PLACE FOREIGN
BIDDERS IN THE IMPOSSIBLE POSITION OF AGREEING TO BUY EXPENSIVE MATERIAL
WITHOUT ANY CERTAINTY THAT THE SELLER WILL PERMIT THE MATERIAL TO BE
TAKEN TO THE PLACE OF INTENDED USE. THE INCLUSION OF PARAGRAPH 24 OF
THE CONDITIONS OF PARTICIPATION, UNDER THE CIRCUMSTANCES, THUS SEEMS TO
HAVE CONSTITUTED A CONFUSING ELEMENT IN THE BIDDING ARRANGEMENT. * * *"
WE DO NOT AGREE THAT PARAGRAPH 24,"CONSTITUTED A CONFUSING ELEMENT IN
THE BIDDING ARRANGEMENT.'
THE LANGUAGE OF THAT PARAGRAPH IS PERFECTLY CLEAR WHEN READ IN
CONTEXT, I.E., AS PART OF A DOCUMENT INVITING PROSPECTIVE PURCHASERS TO
BUY GOVERNMENT PROPERTY.
SINCE IT APPEARS THAT THE DEPARTMENT OF THE NAVY DEEMED IT TO BE IN
THE INTEREST OF THE GOVERNMENT TO REQUIRE THE SUCCESSFUL BIDDER TO
ASSUME ABSOLUTE RESPONSIBILITY FOR OBTAINING ANY REQUIRED LICENSES TO
EXPORT THE VESSELS, A BID SO QUALIFIED AS TO RELIEVE THE BIDDER FROM ITS
CONTRACT IN THE EVENT THE LICENSES WERE NOT OBTAINED PROPERLY SHOULD BE
DISREGARDED AS NOT RESPONSIVE TO THE INVITATION FOR BIDS. OBVIOUSLY, A
CONTRACT AWARDED TO A BIDDER WHO SO LIMITS HIS OBLIGATION WOULD NOT BE
THE CONTRACT OFFERED TO ALL BIDDERS, AND WOULD BE A MANIFEST INJUSTICE
TO BIDDERS WILLING TO ACCEPT A CONTRACT UPON THE CONDITIONS OFFERED BY
THE GOVERNMENT AND TO ASSUME THE RISK OF OBTAINING EXPORT LICENSES.
MOREOVER, IT IS A WELL-ESTABLISHED RULE THAT A PUBLIC OFFICER GIVEN
POWER BY STATUTE TO ENTER INTO A CONTRACT ON BEHALF OF THE PUBLIC WITH
THE BEST BIDDER, HAS NO POWER TO GRANT THAT BIDDER ANY TERM MATERIALLY
ADVANTAGEOUS TO HIM WHICH WAS NOT ANNOUNCED IN THE ADVERTISEMENT FOR
BIDS. THE CONTRACT ENTERED INTO MUST BE THE CONTRACT OFFERED TO THE
HIGHEST RESPONSIBLE BIDDER BY ADVERTISEMENT. 8 COMP. GEN. 299.
IN VIEW OF THE QUALIFICATION, WE AGREE WITH THE ADMINISTRATIVE
DETERMINATION TO REJECT SIDMAR'S BID.
B-139985, JUL. 29, 1959
TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE:
ON JUNE 18, 1959, THE ACTING SECRETARY REQUESTED OUR DECISION
WHETHER, IN THE CIRCUMSTANCES OUTLINED BELOW, THE "EXPLANATORY
DECLARATION" SUBMITTED BY DR. ROBERT E. GROSS OF SYRACUSE, NEW YORK,
WOULD BE CONSIDERED BY OUR OFFICE TO BE A "MENTAL RESERVATION" AND SO
INVALIDATE THE OATH OF OFFICE HE SIGNED ON MARCH 4, 1959, AS TO REQUIRE
US TO OBJECT TO PAYMENT OF COMPENSATION TO DR. GROSS. THE MATTER
CONCERNS THE CIVIL OFFICER APPOINTMENT AFFIDAVITS, STANDARD FORM 61A,
WHICH DR. GROSS EXECUTED INCIDENT TO THE OFFER TO HIM OF AN APPOINTMENT
AS A RESERVE OFFICER IN THE COMMISSIONED CORPS OF THE PUBLIC HEALTH
SERVICE. THE "OATH OF OFFICE" IS THAT WHICH IS REQUIRED UNDER THE
PROVISIONS OF 5 U.S.C. 16.
DR. GROSS EXECUTED THE AFFIDAVITS FORM BUT ATTACHED THERETO HIS
"EXPLANATORY DECLARATION," AS FOLLOWS:
"IN TAKING THIS OATH I MAKE NO MENTAL RESERVATION. I AM A MEMBER OF
THE REFORMED PRESBYTERIAN CHURCH OF NORTH AMERICA, AND I DECLARE THAT I
OWE A SUPREME ALLEGIANCE TO THE LORD JESUS CHRIST, AND IN MAKING THAT
DECLARATION I TAKE THE SAME GOD AS MY WITNESS, INVOKING HIS ASSISTANCE
TO HELP ME RENDER DUE OBEDIENCE TO MY COUNTRY IN ALL TEMPORAL MATTERS.
"AND I DO FURTHER DECLARE THAT I DO NOT NOW KNOW ANY MATTER IN WHICH
I INTEND ACTUAL DISOBEDIENCE TO ANY COMMAND OF MY COUNTRY NOW KNOWN TO
ME.'
SECTION 16, TITLE 5, U.S. CODE, PROVIDES THAT THE OATH OF OFFICE TO
BE TAKEN BY ANY PERSON APPOINTED TO ANY OFFICE OF HONOR OR PROFIT EITHER
IN THE CIVIL, MILITARY, OR NAVAL SERVICE, EXCEPT THE PRESIDENT OF THE
UNITED STATES, SHALL BE AS FOLLOWS:
" "I, A B, DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL SUPPORT AND
DEFEND THE CONSTITUTION OF THE UNITED STATES AGAINST ALL ENEMIES,
FOREIGN AND DOMESTIC; THAT I WILL BEAR TRUE FAITH AND ALLEGIANCE TO THE
SAME; THAT I TAKE THIS OBLIGATION FREELY, WITHOUT ANY MENTAL
RESERVATION OR PURPOSE OF EVASION; AND THAT I WILL WELL AND FAITHFULLY
DISCHARGE THE DUTIES OF THE OFFICE ON WHICH I AM ABOUT TO ENTER. SO
HELP ME GOD.' "
THE EXECUTION OF A VALID OATH OF OFFICE GENERALLY IS A CONDITION
PRECEDENT TO THE PAYMENT OF COMPENSATION. SEE 21 COMP. GEN. 817.
THE PUBLIC HEALTH SERVICE ADVISED DR. GROSS THAT AS HE HAD SIGNED THE
OATH OF OFFICE FORM AS BEING SUBJECT TO HIS PERSONAL INTERPRETATION OR
RELIGIOUS CONVICTIONS HE HAD NOT COMPLIED WITH ONE OF THE CONDITIONS FOR
APPOINTMENT AS A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE
RESERVE CORPS. AFTER RECONSIDERATION, HOWEVER, THE ACTING SECRETARY
SAYS YOUR DEPARTMENT NOW BELIEVES THE ADMINISTRATIVE ACTION IN DENYING
EMPLOYMENT TO DR. GROSS WAS ERRONEOUS, AND THAT HIS "EXPLANATORY
DECLARATION" OF RELIGIOUS FAITH IS NOT REGARDED AS A "MENTAL
RESERVATION" WITHIN THE MEANING OF THAT PHRASE AS CONTAINED IN 5 U.S.C.
16; NOR SUCH AS WOULD PRECLUDE HIS EMPLOYMENT BECAUSE SUCH STATEMENT IS
NOW REGARDED AS MERELY EXPLANATORY OF HIS RELIGIOUS BELIEFS.
IN SUPPORT OF THE PROPOSITION, THAT THE ABOVE "EXPLANATORY
DECLARATION" DOES NOT INVALIDATE THE OATH OF OFFICE, A PAMPHLET---
EVIDENTLY PREPARED BY THE COMMITTEE ON THE OATH, REFORMED PRESBYTERIAN
CHURCH OF NORTH AMERICA--- IS ENCLOSED WITH THE ACTING SECRETARY'S
LETTER WHICH EXPOUNDS SOMEWHAT THE CONCLUSION THE SUPREME COURT REACHED
IN GIROUARD V. UNITED STATES, 328 U.S. 61; OVERRULING UNITED STATES V.
SCHWIMMER, UNITED STATES V. MACINTOSH, AND UNITED STATES V. BLAND, 279
U.S. 644, 283 ID. 605 AND 636, RESPECTIVELY. THE GIROUARD CASE
SPECIFICALLY CONCERNED THE PROVISIONS OF SECTION 335 OF THE NATIONALITY
ACT OF 1940, 54 STAT. 1137, 1157, 8 U.S.C. 735 (B) (1946 EDITION).
THAT ACT REQUIRED IN NATURALIZATION PROCEEDINGS AN OATH OF ALLEGIANCE,
AS FOLLOWS:
"I HEREBY DECLARE, ON OATH, THAT I ABSOLUTELY AND ENTIRELY RENOUNCE
AND ABJURE ALL ALLEGIANCE AND FIDELITY TO ANY FOREIGN PRINCE, POTENTATE,
STATE, OR SOVEREIGNTY OF WHOM OR WHICH I HAVE HERETOFORE BEEN A SUBJECT
OR CITIZEN; THAT I WILL SUPPORT AND DEFEND THE CONSTITUTION AND LAWS OF
THE UNITED STATES OF AMERICA AGAINST ALL ENEMIES, FOREIGN AND DOMESTIC;
THAT I WILL BEAR TRUE FAITH AND ALLEGIANCE TO THE SAME; AND THAT I TAKE
THIS OBLIGATION FREELY WITHOUT ANY MENTAL RESERVATION OR PURPOSE OF
EVASION: SO HELP ME GOD.'
MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT, IN PERTINENT
PART, AS FOLLOWS:
"* * * ONE MAY SERVE HIS COUNTRY FAITHFULLY AND DEVOTEDLY, THOUGH HIS
RELIGIOUS SCRUPLES MAKE IT IMPOSSIBLE FOR HIM TO SHOULDER A RIFLE.
DEVOTION TO ONE'S COUNTRY CAN BE AS REAL AND AS ENDURING AMONG
NON-COMBATANTS AS AMONG COMBATANTS. ONE MAY ADHERE TO WHAT HE DEEMS TO
BE HIS OBLIGATION TO GOD AND YET ASSUME ALL MILITARY RISKS TO SECURE
VICTORY. THE EFFORT OF WAR IS INDIVISIBLE; AND THOSE WHOSE RELIGIOUS
SCRUPLES PREVENT THEM FROM KILLING ARE NO LESS PATRIOTS THAN THOSE WHOSE
SPECIAL TRAITS OR HANDICAPS RESULT IN THEIR ASSIGNMENT TO DUTIES FAR
BEHIND THE FIGHTING FRONT. EACH IS MAKING THE UTMOST CONTRIBUTION
ACCORDING TO HIS CAPACITY. THE FACT THAT HIS RULE MAY BE LIMITED BY
RELIGIOUS CONVICTIONS RATHER THAN BY PHYSICAL CHARACTERISTICS HAS NO
NECESSARY BEARING ON HIS ATTACHMENT TO HIS COUNTRY OR ON HIS WILLINGNESS
TO SUPPORT AND DEFEND IT TO HIS UTMOST.
"PETITIONER'S RELIGIOUS SCRUPLES WOULD NOT DISQUALIFY HIM FROM
BECOMING A MEMBER OF CONGRESS OR HOLDING OTHER PUBLIC OFFICES. WHILE
ARTICLE VI, CLAUSE 3 OF THE CONSTITUTION PROVIDES THAT SUCH OFFICIALS,
BOTH OF THE UNITED STATES AND THE SEVERAL STATES,"SHALL BE BOUND BY OATH
OR AFFIRMATION, TO SUPPORT THIS CONSTITUTION," IT SIGNIFICANTLY ADDS
THAT "NO RELIGIOUS TEST SHALL EVER BE REQUIRED AS A QUALIFICATION TO ANY
OFFICE OR PUBLIC TRUST UNDER THE UNITED STATES.' THE OATH REQUIRED IS IN
NO MATERIAL RESPECT DIFFERENT FROM THAT PRESCRIBED FOR ALIENS UNDER THE
NATIONALITY ACT. IT HAS LONG CONTAINED THE PROVISION "THAT I WILL
SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES AGAINST ALL
ENEMIES, FOREIGN AND DOMESTIC; THAT I WILL BEAR TRUE FAITH AND
ALLEGIANCE TO THE SAME; THAT I TAKE THIS OBLIGATION FREELY, WITHOUT ANY
MENTAL RESERVATION OR PURPOSE OF EVASION . . .' R.S. SEC. 1757, 5 U.S.C.
SEC. 16. AS MR. CHIEF JUSTICE HUGHES STATED IN HIS DISSENT IN THE
MACINTOSH CASE (283 U.S. P. 631),"THE HISTORY OF THE STRUGGLE FOR
RELIGIOUS LIBERTY, THE LARGE NUMBER OF CITIZENS OF OUR COUNTRY, FROM THE
VERY BEGINNING, WHO HAVE BEEN UNWILLING TO SACRIFICE THEIR RELIGIOUS
CONVICTIONS, AND IN PARTICULAR, THOSE WHO HAVE BEEN CONSCIENTIOUSLY
OPPOSED TO WAR AND WHO WOULD NOT YIELD WHAT THEY SINCERELY BELIEVED TO
BE THEIR ALLEGIANCE TO THE WILL OF GOD"--- THESE CONSIDERATIONS MAKE IT
IMPOSSIBLE TO CONCLUDE "THAT SUCH PERSONS ARE TO BE DEEMED DISQUALIFIED
FOR PUBLIC OFFICE IN THIS COUNTRY BECAUSE OF THE REQUIREMENT OF THE OATH
WHICH MUST BE TAKEN BEFORE THEY ENTER UPON THEIR DUTIES.'
"MR. JUSTICE HOLMES STATES IN THE SCHWIMMER CASE (279 U.S. PP.
654-55): "IF THERE IS ANY PRINCIPLE OF THE CONSTITUTION THAT MORE
IMPERATIVELY CALLS FOR ATTACHMENT THAN ANY OTHER IT IS THE
PRINCIPLE OF FREE THOUGHT--- NOT FREE THOUGHT FOR THOSE WHO AGREE
WITH US BUT FREEDOM FOR THE THOUGHT THAT WE HATE. I THINK THAT WE
SHOULD ADHERE TO THAT PRINCIPLE WITH REGARD TO ADMISSION INTO, AS WELL
AS TO LIFE WITHIN THIS COUNTRY.' THE STRUGGLE FOR RELIGIOUS LIBERTY HAS
THROUGH THE CENTURIES BEEN AN EFFORT TO ACCOMMODATE THE DEMANDS OF THE
STATE TO THE CONSCIENCE OF THE INDIVIDUAL. THE VICTORY FOR FREEDOM OF
THOUGHT RECORDED IN OUR BILL OF RIGHTS RECOGNIZES THAT IN THE DOMAIN OF
CONSCIENCE THERE IS A MORAL POWER HIGHER THAN THE STATE. THROUGHOUT THE
AGES, MEN HAVE SUFFERED DEATH RATHER THAN SUBORDINATE THEIR ALLEGIANCE
TO GOD TO THE AUTHORITY OF THE STATE.
FREEDOM OF RELIGION GUARANTEED BY THE FIRST AMENDMENT IS THE PRODUC
OF THAT STRUGGLE. AS WE RECENTLY STATED IN UNITED STATES V. BALLARD,
322 U.S. 78, 86,"FREEDOM OF THOUGHT, WHICH INCLUDES FREEDOM OF
RELIGIOUS BELIEF, IS BASIC IN A SOCIETY OF FREE MEN. BOARD OF EDUCATION
V. BARNETTE, 319 U.S. 624.' THE TEST OATH IS ABHORRENT TO OUR
TRADITION. OVER THE YEARS, CONGRESS HAS METICULOUSLY RESPECTED THAT
TRADITION AND EVEN IN TIME OF HAS SOUGHT TO ACCOMMODATE THE MILITARY
REQUIREMENTS TO THE RELIGIOUS SCRUPLES OF THE INDIVIDUAL. WE DO NOT
BELIEVE THAT CONGRESS INTENDED TO REVERSE THAT POLICY WHEN IT CAME TO
DRAFT THE NATURALIZATION OATH. SUCH AN ABRUPT AND RADICAL DEPARTURE
FROM OUR TRADITIONS SHOULD NOT BE IMPLIED. SEE SCHNEIDERMAN V. UNITED
STATES, 320 U.S. 118, 132. COGENT EVIDENCE WOULD BE NECESSARY TO
CONVINCE US THAT CONGRESS TOOK THAT COURSE.
"WE CONCLUDE THAT THE SCHWIMMER, MACINTOSH AND BLAND CASES DO NOT
STATE THE CORRECT RULE OF .'
THAT VIEW OF THE SUPREME COURT IS PROPERLY FOR CONSIDERATION IN
CONSTRUING THE SAME LANGUAGE, NAMELY,"THAT I TAKE THIS OBLIGATION FREELY
WITHOUT ANY MENTAL RESERVATION OR PURPOSE OF EVASION," WHICH IS
CONTAINED IN 5 U.S.C. 16 AND STANDARD FORM 61A. IN THAT CONNECTION WE
CONCUR IN YOUR DEPARTMENT'S VIEW THAT THE "EXPLANATORY DECLARATION" IN
QUESTION MERELY REPRESENTS THE RELIGIOUS BELIEF OF DR. GROSS, AND DOES
NOT NEGATIVE HIS PRECEDING COMMITMENT TO SUPPORT AND DEFEND THE
CONSTITUTION OF THE UNITED STATES AGAINST ALL ENEMIES AND TO BEAR TRUE
FAITH AND ALLEGIANCE TO THE SAME. HENCE, THE ATTACHMENT OF SUCH
DECLARATION TO HIS OATH OF OFFICE IS NOT REGARDED BY US AS A ,MENTAL
RESERVATION" WITHIN THE MEANING OF 5 U.S.C. 16.
IN LIGHT OF THE ABOVE DISCUSSION AND THE HOLDING BY THE SUPREME
COURT, WE CONCUR IN THE CONCLUSION STATED IN THE ACTING SECRETARY'S
LETTER. HENCE, WE WOULD NOT OBJECT TO OTHERWISE PROPER PAYMENT OF
COMPENSATION TO DR. GROSS UPON HIS APPOINTMENT AND THE TAKING OF THE
OATH ACCOMPANIED BY THE REFERRED-TO "EXPLANATORY DECLARATION.'
B-140123, JUL. 28, 1959
TO COMMANDER EDWARD W. WUNCH., USN:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 16, 1959, IN EFFECT
REQUESTING REVIEW OF OUR SETTLEMENT OF APRIL 23, 1959, WHICH DISALLOWED
YOUR CLAIM FOR ADDITIONAL RETIRED PAY ON AND AFTER OCTOBER 1, 1949,
BASED ON THE HOLDINGS IN THE CASES OF GORDON V. UNITED STATES, 134
C.CLS. 840; FIELD V. UNITED STATES, C.CLS.NO. 525-53, DECIDED JANUARY
15, 1958; AND SHERFEY V. UNITED STATES, C.CLS.NO. 324-56, DECIDED
JANUARY 15, 1958.
THE RECORD INDICATES THAT YOU WERE RETIRED AS A LIEUTENANT COMMANDER
ON JUNE 30, 1939, THAT YOU WERE RECALLED TO ACTIVE DUTY ON SEPTEMBER 27,
1940, AND THAT YOU WERE RELEASED TO INACTIVE DUTY ON NOVEMBER 2, 1946,
AND ADVANCED TO THE RANK OF COMMANDER, AT WHICH TIME YOU HAD COMPLETED
28 YEARS, 1 MONTH AND 7 DAYS OF ACTIVE SERVICE.
IT APPEARS THAT WITH ONE IMPORTANT EXCEPTION, YOUR CIRCUMSTANCES ARE
SIMILAR TO THOSE CONSIDERED IN THE GORDON, FIELD AND SHERFEY CASES. AS
STATED IN THE COPY OF THE RETIRED NAVAL PERSONNEL NEWSLETTER ENCLOSED
WITH YOUR LETTER, THE PLAINTIFFS IN THOSE CASES WERE ENTITLED TO RETIRED
PAY COMPUTED BY THE METHOD THERE EXPLAINED "PLUS THE SUBSEQUENT
INCREASES IN RETIRED PAY WHICH HAVE BEEN PROVIDED BY LAW.' NO RIGHT TO
INCREASED RETIRED PAY ACCRUED TO THEM UNDER THE CAREER COMPENSATION ACT
OF 1949, 63 STAT. 802 AND NONE WAS AWARDED THEM UNDER THE DECISIONS IN
THOSE CASES. THEIR RE-RETIREMENTS PRIOR TO OCTOBER 1, 1949, ENTITLED
THEM TO INCREASES UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY
READJUSTMENT ACT OF 1942, 56 STAT. 367, COMPUTED AT RATES OF PAY
PRESCRIBED BY LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949. THE INCREASES IN
RETIRED PAY THEY HAVE RECEIVED ON AND AFTER THAT DATE WERE THE
PERCENTAGE INCREASES AUTHORIZED BY THE ACTS OF MAY 19, 1952, 66 STAT.
79, MARCH 31, 1955, 69 STAT. 18, AND MAY 20, 1958, 72 STAT. 122, FOR
MEMBERS ENTITLED TO RETIRED PAY UNDER LAWS IN EFFECT PRIOR TO OCTOBER 1,
1949.
YOU HAVE OVER 28 YEARS OF ACTIVE SERVICE TO YOUR CREDIT AND THAT FACT
PLACED YOU IN A MORE FAVORABLE POSITION THAN THE PLAINTIFFS IN THE CITED
CASES WHO HAD LESS, SINCE IT ENABLED YOU TO QUALIFY FOR AN INCREASE IN
RETIRED PAY UNDER METHOD (B), SECTION 511 OF THE CAREER COMPENSATION
ACT. IF SUCH PLAINTIFFS HAD HAD SUFFICIENT ACTIVE SERVICE TO QUALIFY
FOR INCREASED RETIRED PAY UNDER SECTION 511, NO ADDITIONAL RETIRED PAY
WOULD HAVE BEEN AWARDED THEM BY THE COURT ON AND AFTER OCTOBER 1, 1949,
SINCE IN THAT EVENT, THEY ALREADY WOULD HAVE RECEIVED MORE THAN WAS
PAYABLE UNDER THE RE-RETIREMENT RULE OF THOSE CASES.
DURING THE PERIOD OCTOBER 1, 1949, THROUGH APRIL 30, 1952, YOU WERE
PAID AT THE RATE OF $408.98 PER MONTH, COMPUTED AS FOLLOWS: $584.25
(PAY OF A COMMANDER WITH OVER 26 YEARS' SERVICE) TIMES 2 1/2 PERCENT
TIMES 28 (YEARS OF ACTIVE SERVICE). IT APPEARS THAT YOU HAVE RECEIVED
APPROPRIATE INCREASES IN RETIRED PAY SINCE THE LATTER DATE AS PROVIDED
BY LAW. THE RATE PAYABLE UNDER THE CITED CASES FROM THE TIME OF YOUR
RE-RETIREMENT TO APRIL 30, 1952--- YOU WERE PAID AT THAT RATE UP TO
OCTOBER 1, 1949--- WAS $348.91 OR 75 PERCENT OF $465.21, THE ACTIVE DUTY
PAY TO WHICH YOU WERE ENTITLED AT THE TIME OF YOUR RE-RETIREMENT, UNDER
THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY THE ACT OF JUNE 29,
1946, 60 STAT. 343.
IT IS CLEAR THAT DURING THE PERIOD OCTOBER 1, 1949, THROUGH MARCH 31,
1959, YOU HAVE RECEIVED RETIRED PAY IN EXCESS OF THAT PAYABLE UNDER THE
THEORY OF THE GORDON, FIELD AND SHERFEY CASES. ACCORDINGLY, NO
ADDITIONAL RETIRED PAY IS DUE TO YOU AND OUR SETTLEMENT OF APRIL 29,
1959, IS SUSTAINED.
A-24222, JUL. 27, 1959
TO THE HONORABLE SUMNER G. WHITTIER, ADMINISTRATOR, VETERANS
ADMINISTRATION:
IN LETTER DATED DECEMBER 18, 1958, FILE 134D3, FROM THE DIRECTOR,
SUPPLY SERVICE OF YOUR DEPARTMENT OF MEDICINE AND SURGERY, TO THE
DIRECTOR OF OUR TRANSPORTATION DIVISION, AUTHORITY IS REQUESTED TO USE
ON GOVERNMENT BILLS OF LADING IN DESCRIBING VARIOUS ARTICLES SHIPPED
FROM YOUR WAREHOUSES THE GENERAL COMMODITY DESCRIPTION "FREIGHT, ALL
KINDS" ("FAK") WHERE TARIFF OR QUOTATION RATES ARE AVAILABLE FOR
SHIPMENTS SO CLASSIFIED. PARAGRAPH 6 OF THE ADMINISTRATIVE DIRECTIONS
ON THE REVERSE OF THE BILL OF LADING PROVIDES THAT BILLS OF LADING
DESIGNATE THE ARTICLES SHIPPED BY THE CARRIER'S CLASSIFICATION OR TARIFF
DESCRIPTION, IF POSSIBLE, OTHERWISE THAT A CLEAR NONTECHNICAL
DESCRIPTION BE USED TO WHICH MAY BE ADDED THE DEPARTMENTAL NOMENCLATURE,
IF DESIRED. IT ALSO REQUIRES THAT THERE BE STATED "SEPARATELY SUCH
WEIGHTS, DIMENSIONS, AND MANNER OF PACKING AS MAY BE NECESSARY TO
ASCERTAIN CLASSIFICATIONS AND RATES AND TO ENABLE RECOVERY IN CASE OF
LOSS OR DAMAGE.'
THE QUESTION OF THE CONSOLIDATION OF ITEMS ORDINARILY STOCKED AND
SHIPPED FROM YOUR SUPPLY DEPOTS UNDER THE GENERAL HEADING OF
"FOODSTUFFS, CANNED, PRESERVED OR PREPARED" AND OF OTHER ARTICLES UNDER
THE GENERAL HEADING OF "FREIGHT, ALL KINDS" ("FAK") WAS CONSIDERED AT A
CONFERENCE ON APRIL 24, 1957, ATTENDED BY MR. HOWARD E. PROPST OF THE
CENTRAL OFFICE, TRAFFIC SECTION, OF YOUR ADMINISTRATION, AND MEMBERS OF
OUR TRANSPORTATION DIVISION. AT THAT TIME, IT APPEARED SHIPMENT OF
FOODSTUFFS UNDER A GENERAL HEADING WAS OF PRIMARY INTEREST; HOWEVER, IF
THE PROPOSAL TO CONSOLIDATE FOODSTUFFS UNDER A GENERAL HEADING WERE
APPROVED AND ITS USE PROVED ADVANTAGEOUS TO YOUR ADMINISTRATION, IT WAS
INDICATED CONSIDERATION WOULD BE GIVEN AT A LATER DATE, TO THE
CONSOLIDATION OF THE OTHER ITEMS SHIPPED UNDER A SIMILAR GENERAL
DESCRIPTION. THAT CONFERENCE WAS FOLLOWED BY A LETTER DATED MAY 2,
1957, FROM THE DIRECTOR, SUPPLY SERVICE, DEPARTMENT OF MEDICINE AND
SURGERY-OPERATIONS, TO THE DIRECTOR OF OUR TRANSPORTATION DIVISION,
RELATIVE TO THE CONSOLIDATION OF THE DESCRIPTION OF FOODSTUFFS SHIPPED.
IN JUSTIFICATION OF SUCH CONSOLIDATION IT WAS STATED:
"IN ALMOST EVERY INSTANCE, MOTOR AS WELL AS RAIL, COMMODITY LISTS ARE
PUBLISHED COVERING GROUPS OF SUCH ITEMS AS "FOODSTUFFS, CANNED,
PRESERVED, OR PREPARED.' THE APPLICATION OF THESE LISTS IS WIDE SPREAD.
OUR PLAN IS TO CONSOLIDATE THE VARIOUS ITEMS WE SHIP IN ACCORDANCE WITH
THE COMMODITY LISTS AND SHOW ONE LINE ON THE BILL OF LADING TO COVER
THIS CONSOLIDATION. THE DESCRIPTION ON THE BILL OF LADING WOULD APPEAR
AS "FOODSTUFFS, CANNED OR PRESERVED AS DESCRIBED IN LIST NO. ------,
TARIFF NO. ------, COMMISSION NO. ------.' THOSE ITEMS IN THE SHIPMENT
NOT INCLUDED IN THE LIST WILL BE SHOWN SEPARATELY ON THE BILL OF LADING
PROPERLY DESCRIBED IN CLASSIFICATION TERMS. USING THE LIST WOULD NOT BE
DEVIATING FROM PROPER DESCRIPTIONS IN THAT THE CHARGES WOULD BE BASED ON
THE COMMODITY LIST TO WHICH REFERENCE WAS MADE.
"WE ARE NOW USING THE EXACT CLASSIFICATION DESCRIPTION FOR EACH
COMMODITY, REQUIRING APPROXIMATELY 100 ENTRIES PER BILL OF LADING.
USING THE PROPOSED PROCEDURE, THE SUBSISTENCE PORTION OF THE BILL OF
LADING COULD BE REDUCED TO TWENTY-FIVE ENTRIES, RESULTING IN
CONSIDERABLE SAVINGS IN TYPING TIME. FURTHER BENEFITS WOULD RESULT WHEN
THE BILL OF LADING WAS RATED BY THE VETERANS ADMINISTRATION, THE CARRIER
AND GENERAL ACCOUNTING OFFICE. ADDITIONAL SAVINGS WOULD RESULT IN USING
LESS CONTINUATION SHEETS AND A LESSER AMOUNT OF FILING SPACE FOR THESE
EXTRA SHEETS.
"AT OUR DEPOTS, THERE ARE QUALIFIED TRAFFIC MEN AND THE SYSTEM WOULD
BE OPERATED UNDER THEIR CONTROL. THE PROCEDURE WOULD BE POLICED BY
CENTRAL OFFICE PERIODICALLY TO INSURE STRICT COMPLIANCE WITH TARIFF
PROVISIONS. CHANGES WOULD BE MADE IN OUR LISTS AS TARIFF SUPPLEMENTS OR
REISSUES BECAME EFFECTIVE.'
THAT PROCEDURE WAS APPROVED IN A LETTER DATED JUNE 13, 1957, FROM OUR
TRANSPORTATION DIVISION, TO THE DIRECTOR, SUPPLY SERVICE, DEPARTMENT OF
MEDICINE AND SURGERY, OF YOUR ADMINISTRATION, ON CONDITION THAT "SHOULD
THE NEED ARISE TO SUBSEQUENTLY IDENTIFY THE CONSIST OF A PARTICULAR
SHIPMENT, E.G., IN CASES OF CLAIMS FOR LOSS AND/OR DAMAGE TO SHIPMENTS,
ADEQUATE INFORMATION WOULD BE AVAILABLE TO US FROM THE RELATED VETERANS
ADMINISTRATION SHIPPING DOCUMENTS.'
YOUR PRESENT REQUEST IS FOR AN EXTENSION OF THE PERMISSION PREVIOUSLY
GIVEN SO AS TO INCLUDE COMMODITIES COMING UNDER THE COMMODITY
DESCRIPTIONS "FREIGHT, ALL KINDS" ("FAK"). THE RECORD PRESENTED SHOWS
THAT THE SUPPLY DEPOT ON ROYCE, NEW JERSEY, HAS RECEIVED SECTION 22
QUOTATIONS FROM VARIOUS CARRIERS WHICH LIST THE ITEMS SHIPPED BY THAT
DEPOT IN TWO CATEGORIES AS FOLLOWS:
"A. FREIGHT, ALL KINDS, EXCEPT COMMODITIES COVERED IN DESCRIPTION B
"B. FOODSTUFFS AS STOCKED BY THE VETERANS ADMINISTRATION; EXCEPT
FRESH MEATS AND PERISHABLES.'
THE LETTER DATED MAY 5, 1958, IN THE RECORD, FROM THE MANAGER, OF THE
SUPPLY DEPOT, AT ROYCE, NEW JERSEY, INDICATES THAT THOSE ITEMS SHIPPED
BY THAT DEPOT WHICH CAN MOVE CHEAPER AT TARIFF RATES, THAN UNDER THE
ABOVE DESCRIPTIONS, WILL BE ITEMIZED SEPARATELY WITH PROVISION FOR THE
APPLICATION OF THE LOWER RATES.
CONSIDERING THE JUSTIFICATION FOR THE PROPOSAL WHICH IS SUBSTANTIALLY
SIMILAR TO THAT PRESENTED IN CONNECTION WITH THE FOODSTUFF LISTS, AND
THE ASSURANCE THAT THE PROPOSED PROCEDURE WOULD BE UNDER THE CONTROL OF
QUALIFIED TRAFFIC PERSONNEL AT THE DEPOTS AND WOULD BE POLICED
PERIODICALLY BY REPRESENTATIVES OF YOUR CENTRAL OFFICE, AND THAT
ADEQUATE INFORMATION AS TO THE ACTUAL CONSIST OF A SHIPMENT WILL BE MADE
AVAILABLE TO OUR OFFICE IF NEEDED, AS FOR EXAMPLE, IN CASES OF CLAIMS
ARISING FROM LOSS AND/OR DAMAGE, YOUR PROPOSAL IS APPROVED.
B-139443, B-139444, JUL 27, 1959
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
FRED A. BANTZ, UNDER SECRETARY OF THE NAVY:
REFERENCE IS MADE TO LETTER FROM YOUR OFFICE DATED APRIL 13, 1959
(NCA213), REQUESTING CLARIFICATION OF THE ACTION TAKEN BY THE CLAIMS
DIVISION OF THIS OFFICE IN GENERAL ACCOUNTING OFFICE SETTLEMENTS DATED
DECEMBER 16, 1958, AND JANUARY 15, 1959, IN THE CASES OF LIEUTENANT
CHARLIE SHERROD EAST AND LIEUTENANT COMMANDER CLARENCE EARL WILLIAMS,
RESPECTIVELY, BOTH RETIRED OFFICERS OF THE UNITED STATES NAVY.
LIEUTENANT EAST WAS ALLOWED ADDITIONAL RETIRED PAY UNDER THE RULE OF
THE GORDON, FIELD AND SHERFEY CASES IN THE SETTLEMENT OF DECEMBER 16,
1958, FOR THE ALLOWABLE PERIOD PRECEDING OCTOBER 1, 1949, ONLY, WHEREAS
IN THE SETTLEMENT OF JANUARY 15, 1959, ADDITIONAL RETIRED PAY DUE UNDER
THE RULE OF THE GORDON, FIELD AND SHERFEY CASES WAS ALLOWED TO
LIEUTENANT COMMANDER WILLIAMS FOR THE PERIOD OCTOBER 1, 1949, TO OCTOBER
31, 1958, INCLUSIVE, AS WELL AS FOR THE ALLOWABLE PERIOD PRECEDING
OCTOBER 1, 1949. THE INQUIRY PRESENTED IN THE LETTER OF APRIL 13, 1959,
RELATES TO THE REASON WHY LIEUTENANT COMMANDER WILLIAMS' CLAIM WAS
ALLOWED AND THE CLAIM OF LIEUTENANT EAST WAS DENIED FOR THE PERIOD
COMMENCING OCTOBER 1, 1949.
BOTH OFFICERS WERE RETIRED FOR PHYSICAL DISABILITY PRIOR TO OCTOBER
1, 1949, AND BOTH OF THEM ELECTED, UNDER OPTION (A) IN SECTION 411 OF
THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, TO QUALIFY FOR
DISABILITY RETIRED PAY PURSUANT TO THE PROVISIONS OF THE 1949 LAW. THEY
THEREBY BECAME ENTITLED TO RECEIVE RETIRED PAY EFFECTIVE FROM OCTOBER 1,
1949, BY FURTHER ELECTING AS PRESCRIBED IN SECTION 402(D) OF THE 1949
LAW, 63 STAT. 818, TO COMPUTE THEIR RETIRED PAY (1) ON THE BASIS OF THE
CREDITABLE NUMBER OF YEARS OF ACTIVE SERVICE TO WHICH ENTITLED UNDER
SECTION 412 OF THE ACT, 63 STAT. 824, OR (2) ON THE PERCENTAGE OF THEIR
DISABILITY AT THE TIME OF RETIREMENT. IN BOTH CASES THE GREATER AMOUNT
OF RETIRED PAY RESULTED FROM THE PERCENTAGE OF DISABILITY - 60 PERCENT
IN THE CASE OF LIEUTENANT COMMANDER WILLIAMS, AND 75 PERCENT (THE
MAXIMUM FOR A 100 PERCENT DISABILITY RATING) IN THE CASE OF LIEUTENANT
EAST.
THE RIGHT TO RECEIVE THE BENEFITS PRESCRIBED IN THE FOURTH PARAGRAPH
OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368 ("75 PER
CENTUM OF *** ACTIVE DUTY PAY AT THE TIME OF *** RETIREMENT") AS A
RESULT OF THE "RE-RETIREMENT" CONCEPT ADOPTED BY THE COURT OF CLAIMS IN
THE GORDON, FIELD AND SHERFEY DECISIONS OF APRIL 3, 1956, AND JANUARY
15, 1958, NECESSARILY ARISES, RETROACTIVELY EFFECTIVE, FROM A DATE PRIOR
TO OCTOBER 1, 1949. IN B-137364, SEPTEMBER 30, 1958, IT WAS CONCLUDED
THAT THIS OFFICE WOULD FOLLOW THE RULE ESTABLISHED IN THE GORDON, FIELD
AND SHERFEY DECISIONS.
IN THE CASE OF LIEUTENANT COMMANDER WILLIAMS (GENERAL ACCOUNTING
OFFICE CLAIMS FILE Z-1903772), THE AMOUNT OF RETIRED PAY WHICH HE
ELECTED TO RECEIVE UNDER OPTION (A) OF SECTION 411 IS LESS THAN THAT
WHICH HE HAS LEGALLY BEEN ENTITLED TO RECEIVE EFFECTIVE FROM OCTOBER 1,
1949, UNDER OPTION (B) OF SECTION 411 PURSUANT TO THE RULE OF THE
GORDON, FIELD AND SHERFEY CASES. BECAUSE OF THAT SITUATION, WILLIAMS
WAS ALLOWED THE PAY TO WHICH HE WAS ENTITLED NOTWITHSTANDING HIS
ELECTION. COMPARE 33 COMP. GEN. 71, TRAVIS V. UNITED STATES, 137 C.
CLS. 148, AND PHELAN V. UNITED STATES, C. CLS. NO. 50-57, DECIDED JUNE
3, 1959.
THE FACTS IN THE CASE OF LIEUTENANT EAST (GENERAL ACCOUNTING OFFICE
CLAIMS DIVISION FILE Z-1906026) ARE DIFFERENT FOR THE REASON THAT, WHILE
THE RATE OF HIS RETIRED PAY UNDER THE RULE OF THE GORDON, FIELD AND
SHERFEY CASES IS GREATER DURING THE PERIOD OCTOBER 1, 1949, TO MARCH 31,
1955, INCLUSIVE, THAN THAT RECEIVED BY HIM DURING THAT SAME PERIOD
PURSUANT TO HIS ELECTION OF OPTION (A) IN SECTION 411, THE RATE OF HIS
RETIRED PAY UNDER OPTION (A) EFFECTIVE APRIL 1, 1955, EXCEEDED THE
AMOUNT DUE HIM UNDER THE GORDON, FIELD AND SHERFEY RULE. IN THE ABSENCE
OF AN EXPRESS AND SPECIFIC RESCISSION BY LIEUTENANT EAST OF HIS VALID
ELECTION (MADE IN THE MONTH OF SEPTEMBER 1950) TO RECEIVE RETIRED PAY
EFFECTIVE FROM OCTOBER 1, 1949, UNDER OPTION (A) OF SECTION 411, THE
SETTLEMENT OF DECEMBER 16, 1958, ALLOWED ADDITIONAL RETIRED PAY UNDER
THE RULE OF THE GORDON, FIELD AND SHERFEY CASES FOR THE PERIOD FROM
SEPTEMBER 8, 1948, TO SEPTEMBER 30, 1949, ONLY, SUCH ACTION APPEARING TO
BE THE MOST ADVANTAGEOUS TO THE CLAIMANT AT THAT TIME. MR. EAST HAS NOW
FILED AN ACTION IN THE COURT OF CLAIMS FOR FURTHER ADJUSTMENT OF HIS
RETIRED PAY. SEE PETITION FILED JULY 9, 1959, IN EAST V. UNITED STATES,
C. CLS. NO. 301-59.
THE ENCLOSURES RECEIVED WITH THE LETTER OF APRIL 13, 1959, ARE
RETURNED HEREWITH.
B-139792, JUL. 27, 1959
TO MANHATTAN LIGHTING EQUIPMENT CO. :
REFERENCE IS MADE TO YOUR LETTER DATED JULY 16, 1959, WITH
ENCLOSURES, AND PRIOR CORRESPONDENCE, PROTESTING THE ACTION OF THE
DEPARTMENT OF THE NAVY IN REFUSING TO MAKE AWARDS OF CONTRACTS TO YOU
UNDER CERTAIN INVITATIONS FOR BIDS.
THE ADMINISTRATIVE REPORT, REQUESTED OF THE DEPARTMENT OF THE NAVY ON
THOSE MATTERS, HAS NOW BEEN RECEIVED. IT APPEARS THAT YOUR FIRM
SUBMITTED THE LOWEST BID UNDER THE INVITATIONS INVOLVED.
THESE BIDS WERE REJECTED BY THE CONTRACTING OFFICER ON THE BASIS OF
AN ADMINISTRATIVE DETERMINATION THAT YOUR FIRM WAS NOT A "REGULAR
DEALER" WITHIN THE PURVIEW OF SECTION 1-201.9 (B) OF THE ARMED SERVICES
PROCUREMENT REGULATION. THIS DETERMINATION WAS BASED UPON A REPORT
PREPARED BY THE INSPECTOR OF NAVAL MATERIAL, NEW YORK, NEW YORK.
IT APPEARS THAT YOUR COMPLAINTS STEM FROM YOUR OVERALL
DISSATISFACTION WITH THE FINDINGS REPORTED BY PERSONNEL ATTACHED TO THE
OFFICE OF INSPECTOR OF NAVAL MATERIAL, NEW YORK CITY, WHO CONDUCTED
SURVEYS OF YOUR PLANT AND FACILITIES FOR THE PURPOSE OF DETERMINING YOUR
CAPACITY TO BID AS A "REGULAR DEALER" UNDER THE INVITATIONS INVOLVED.
WHILE YOU CONTEND THAT THE REPORTS MADE BY THE INSPECTOR WERE
INACCURATE, THERE IS NOTHING OF RECORD TO INDICATE THAT THE INSPECTORS
WERE PREJUDICED OR BIASED.
AS POINTED OUT IN NUMEROUS DECISIONS OF OUR OFFICE TO YOU, THE
FUNCTION OF DETERMINING FACTUALLY WHETHER A PARTY IS A QUALIFIED OR
RESPONSIBLE BIDDER LIES PRIMARILY WITH THE INTERESTED GOVERNMENT
CONTRACTING ACTIVITY, AND THE PROPER EXERCISE OF THAT FUNCTION
NECESSARILY INVOLVES A DETERMINATION OF THE BIDDER'S FINANCIAL
RESPONSIBILITY, SKILL, INTEGRITY, EXPERIENCE, AND OVERALL CAPACITY TO
PERFORM. HENCE, YOU WILL APPRECIATE THAT WE CANNOT USURP PURELY
ADMINISTRATIVE FUNCTIONS, AND SUBSTITUTE OUR JUDGMENT FOR THAT OF THE
CONTRACTING AGENCY IN MATTERS OF THIS KIND.
WE HAVE BEEN ADVISED BY THE BUREAU OF SUPPLIES AND ACCOUNTS,
DEPARTMENT OF THE NAVY, THAT AT ONE TIME AN ATTEMPT WAS MADE BY THE NAVY
TO MAINTAIN AN INSPECTOR'S SURVEY LIST OF THE ITEMS ON WHICH YOU WERE
DETERMINED TO BE A REGULAR DEALER. IT WAS SOON RECOGNIZED THAT SUCH A
LIST COULD NOT BE KEPT CURRENT AND, FOR THIS REASON, ITS USE WAS
DISCONTINUED. THE PRESENT PROCEDURE IS TO MAKE DETERMINATIONS ON A
CASE-BY-CASE BASIS.
FOR THE REASONS ABOVE INDICATED, OUR OFFICE WOULD NOT BE JUSTIFIED IN
OBJECTING TO THE ACTION TAKEN BY THE DEPARTMENT OF THE NAVY IN THE
MATTER.
B-139800, JUL. 27, 1959
TO THE BRIGHTMAN TRUCK PARTS COMPANY:
REFERENCE IS MADE TO YOUR LETTER DATED APRIL 27, 1959, AND ENCLOSURE,
RELATIVE TO YOUR CLAIM FOR $93, REPRESENTING REFUND OF THE AMOUNT PAID
FOR A QUANTITY OF COPPER TUBING PURCHASED FROM THE DEPARTMENT OF THE
NAVY UNDER CONTRACT NO. N407A-7336, DATED FEBRUARY 4, 1959.
THE INVITATION DESCRIBED THE ITEM INVOLVED AS "COPPER TUBE, WITH
FLARED CONNECTIONS. OVERALL LENGTH 108 INCHES, 5/8 INCH O.D., SOFT
COPPER.' YOU ALLEGE THAT THE TUBING RECEIVED WAS 3/8 INCH O.D. AND NOT
AS DESCRIBED. IN LETTER OF APRIL 8, 1959, TO THE DISPOSAL OFFICER, YOU
STATED THAT YOU HAD NO USE FOR THE 3/8 INCH TUBING AND REQUESTED
PERMISSION TO RETURN THE MATERIAL WITH A REFUND OF THE PURCHASE PRICE.
BY LETTER OF APRIL 10, 1959, THE DISPOSAL OFFICER DENIED YOUR REQUEST.
PARAGRAPHS 1 AND 2 OF THE GENERAL SALE TERMS AND CONDITIONS PROVIDE
AS FOLLOWS:
"1. INSPECTION.--- BIDDERS ARE INVITED AND URGED TO INSPECT THE
PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS. PROPERTY WILL BE
AVAILABLE FOR INSPECTION AT THE PLACES AND TIMES SPECIFIED IN THE
INVITATION. THE GOVERNMENT WILL NOT BE OBLIGED TO FURNISH ANY LABOR FOR
SUCH PURPOSE. IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR
A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.
"2. CONDITION OF PROPERTY.--- ALL PROPERTY LISTED HEREIN IS OFFERED
FOR SALE "AS IS" AND ,WHERE IS," AND WITHOUT RECOURSE AGAINST THE
GOVERNMENT. * * * THE DESCRIPTION IS BASED ON THE BEST AVAILABLE
INFORMATION, BUT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY, OR
REPRESENTATION, EXPRESSED OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER,
QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF ANY OF THE PROPERTY, OR ITS
FITNESS FOR ANY USE OR PURPOSE, AND NO CLAIM WILL BE CONSIDERED FOR
ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE BASED UPON FAILURE
OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED; THIS IS NOT A
SALE BY SAMPLE.'
IT IS CLEAR THAT MORE EXPLICIT LANGUAGE COULD NOT HAVE BEEN USED TO
APPRISE ALL PROSPECTIVE BIDDERS THAT THEY WERE CONTRACTING FOR THE
PURCHASE OF LISTED MATERIALS AT THEIR OWN RISK. THE COURTS HAVE HELD
CONSISTENTLY THAT SUCH PROVISIONS CONSTITUTE AN EXPRESS DISCLAIMER OF
WARRANTY. MAGUIRE AND COMPANY V. UNITED STATES, 273 U.S. 67; LUMBRAZO
V. WOODRUFF, 175 N.E. 525; W. E. HEDGER COMPANY V. UNITED STATES, 52
F.2D 31, CERTIORARI DENIED, 284 U.S. 676. THESE CASES CONCLUDE THAT
UNDER SUCH CIRCUMSTANCES BUYERS HAVE NO RIGHT TO EXPECT, HAVE NOTICE NOT
TO EXPECT, AND CONTRACT NOT TO EXPECT ANY WARRANTIES WHATEVER. IN
DISPOSING OF SURPLUS MATERIALS, THE GOVERNMENT IS NOT ENGAGED IN NORMAL
TRADE AND FREQUENTLY IS NOT AWARE OF THE CONDITION OR THE QUANTITY OF
THE GOODS IT SELLS. THAT FACT IS MADE KNOWN TO ALL BIDDERS BY THE TERMS
OF THE CONTRACT WHEREBY THE PARTIES AGREE THAT THE RISK AS TO THE
CONDITION AND THE QUANTITY OF THE MATERIAL SOLD IS ASSUMED BY THE
PURCHASER AS ONE OF THE ELEMENTS OF THE BARGAIN. SEE 36 COMP. GEN.
612.
NO LEGAL RESPONSIBILITY WOULD ATTACH TO THE GOVERNMENT AS A RESULT OF
THE SALE IN QUESTION IN THE ABSENCE OF A SHOWING OF BAD FAITH ON THE
PART OF THE DISPOSAL OFFICER OR HIS AGENTS. LIPSHITZ AND COHEN V.
UNITED STATES, 269 U.S. 90. THERE IS NOTHING IN THE RECORD TO INDICATE
THAT THE DISPOSAL OFFICER OR HIS AGENTS ACTED OTHER THAN IN GOOD FAITH
THROUGHOUT THE TRANSACTION.
ALSO, IT APPEARS THAT YOU FAILED TO TAKE ADVANTAGE OF YOUR RIGHT TO
MAKE AN INSPECTION OF THE PROPERTY PRIOR TO THE SUBMISSION OF YOUR BID,
HAVING BOUGHT THE PROPERTY WITHOUT INSPECTING IT. MORE THAN THAT, THE
INVITATION EXPRESSLY PROVIDED THAT IN NO CASE WOULD FAILURE TO INSPECT
CONSTITUTE GROUNDS FOR A CLAIM. SINCE YOU FAILED TO TAKE ADVANTAGE OF
THE OPPORTUNITY OFFERED YOU TO INSPECT, BUT PURCHASED THE TUBING WITHOUT
DOING SO, YOU BOUGHT AT YOUR OWN RISK AND ARE NOT NOW
ENTITLED TO THE RELIEF SOUGHT. SEE M. SAMUEL AND SONS V. UNITED
STATES, 61 C.CLS. 373; BRODY V. UNITED STATES, 64 C.CLS. 538; SACHS
MERCANTILE COMPANY, INC. V. UNITED STATES, 78 C.CLS. 801; AND
PAXTON-MITCHELL CO. V. UNITED STATES, C.CLS. NO. 109-58, DECIDED APRIL
8, 1959.
ACCORDINGLY, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM.
B-140107, JUL. 27, 1959
TO M AND S EXPORT COMPANY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 15, 1959, REQUESTING
REVIEW OF OUR SETTLEMENT DATED JUNE 11, 1959, WHICH DISALLOWED YOUR
CLAIM--- APPARENTLY FOR $262.20--- UNDER DEPARTMENT OF THE AIR FORCE
CONTRACT NO. AF/29-602/S-59-14.
IN RESPONSE TO INVITATION NO. 29-602-S-58-5, ISSUED ON JUNE 9, 1958,
BY THE WALKER AIR FORCE BASE, NEW MEXICO, YOU SUBMITTED A BID OFFERING
TO PURCHASE ITEM NO. 3, COVERING 800 UNUSED WOOLEN SWEATERS AT $1.311
EACH, OR FOR A TOTAL PRICE OF $1,048.40. AN AWARD WAS MADE TO YOU ON
THIS ITEM BY THE AIR FORCE BASE ON JULY 16, 1958, RESULTING IN CONTRACT
NO. AF/29-602/S-59-14, AND PAYMENT IN FULL WAS MADE BY YOU ON JULY 28,
1958. BY A WIRE MESSAGE DATED JULY 31, 1958, THE BASE
PROCUREMENT OFFICE ADVISED YOU OF THE AVAILABILITY OF A 25 PERCENT
OVERRUN OF THE SWEATERS COVERED BY ITEM NO. 3 AND ON AUGUST 11, 1958,
YOUR CHECK WAS RECEIVED BY THE BASE IN PAYMENT FOR THE OVERRUN. IN A
LETTER DATED OCTOBER 23, 1958, YOU ADVISED THE BASE PROCUREMENT OFFICE
THAT YOU DID NOT RECEIVE UNUSED SWEATERS BUT RATHER RECEIVED TORN
SWEATERS, PARTS OF SWEATERS, USED UNDERWEAR AND JUST PLAIN GARBAGE. AS
A RESULT, YOU CLAIM, IN YOUR LETTER OF NOVEMBER 10, 1958, SOME FORM OF
COMPENSATION FOR THE ADDITIONAL 200 USED AND TORN SWEATERS DELIVERED TO
YOU.
IT APPEARS FROM YOUR LETTER OF JUNE 15, 1959, THAT THE SOLE BASIS FOR
THE REQUEST FOR REVIEW OF OUR SETTLEMENT IS THAT YOU HAD THE RIGHT TO,
BUT DID NOT, RECEIVE 200 ADDITIONAL SWEATERS IN THE SAME UNUSED
CONDITION AS THE ORIGINAL 800 SWEATERS SOLD TO YOU. YOU TAKE THE
POSITION THAT WHILE NOT INTENTIONAL THERE WAS BAD FAITH OR
MISREPRESENTATION PRESENT IN YOUR CONTRACT. IN THIS CONNECTION, THE
EVIDENCE OF RECORD DOES NOT SHOW THAT THE USED SWEATERS RECEIVED BY YOU
WERE COMPRISED OF THE 200 OVERRUN. THE DEPARTMENT OF THE AIR FORCE
REPORTS THAT THE ADDITIONAL 200 SWEATERS WERE IN THE SAME CONDITION AS
THOSE ORIGINALLY OFFERED FOR SALE. IN VIEW THEREOF, IT IS JUST AS
REASONABLE TO ASSUME THAT THE USED SWEATERS WERE INCLUDED IN THE
ORIGINAL OFFERING OF 800 SWEATERS AS TO ASSUME THAT THEY WERE COMPRISED
ONLY OF THE OVERRUN OF 200.
ASIDE FROM THAT, THE FACTS CLEARLY SUPPORT THE CONCLUSION THAT THE
SALE OF THE 25 PERCENT OVERRUN OF THE 200 SWEATERS TO YOU WAS SO CLOSELY
ASSOCIATED IN ALL DETAILS WITH THE SALE OF THE ORIGINAL QUANTITY OF 800
SWEATERS WAS TO BE CONSIDERED AS ONE AND THE SAME TRANSACTION UNDER THE
CONTRACT. IN FACT, UNDER PARAGRAPH 19 OF THE ADDITIONAL SALE TERMS AND
CONDITIONS THE GOVERNMENT RESERVED THE RIGHT TO VARY THE QUANTITY UP TO
25 PERCENT IN EXCESS OF THAT STATED IN THE INVITATION FOR BIDS. IT IS
OBVIOUS FROM YOUR CONTENTIONS IN THE MATTER THAT YOU CONCUR IN THIS
DETERMINATION. THIS BEING THE CASE, THE ENTIRE QUANTITY OF 1,000
SWEATERS SOLD TO YOU WAS SUBJECT TO ALL OF THE TERMS AND CONDITIONS SET
FORTH IN THE CONTRACT OF SALE INCLUDING, OF COURSE, THE USUAL DISCLAIMER
OF WARRANTY PROVISION. IN THIS CONNECTION, IT CONSISTENTLY HAS BEEN
HELD BY THE COURTS AND OUR OFFICE THAT IN THE SALE OF PERSONAL PROPERTY
BY DESCRIPTION, THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL
CORRESPOND WITH THE DESCRIPTION; BUT WHERE THERE IS AN EXPRESS
DISCLAIMER OF WARRANTY--- AS IN THIS CASE--- NO SUCH WARRANTY MAY BE
IMPLIED FROM THE DESCRIPTION OF THE PROPERTY SOLD, AS THE DISCLAIMER OF
WARRANTY EXTENDS TO AND INCLUDES THE DESCRIPTION. SEE,
IN THAT CONNECTION, LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER
COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED 284 U.S. 676;
TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151; AND I. SHAPIRO AND
COMPANY V. UNITED STATES, 66 C.CLS. 424. WHILE IT IS ADMITTED, AS
CONTENDED BY YOU, THAT INVITATION NO. 29-602-S-58-5 EXPRESSLY DESCRIBED
THE SWEATERS AS UNUSED, THE DISCLAIMER OF WARRANTY PROVISION ALSO
EXPRESSLY STIPULATED, AMONG OTHERS, THAT THE GOVERNMENT MAKES NO
GUARANTY, WARRANTY, ETC., EITHER OF THE DESCRIPTIONS USED IN THE
INVITATION OR OF THE FITNESS OF THE PROPERTY BEING SOLD FOR ANY USE OR
PURPOSE. UNDER SUCH CONDITIONS, THE DESCRIPTIONS OF PROPERTY APPEARING
IN SALE INVITATIONS OF THIS KIND REPRESENT NOTHING MORE THAN A MERE
EXPRESSION OF OPINION OF THE GOVERNMENT AS TO WHAT IT BELIEVES THE
PROPERTY, OR THE CONDITION THEREOF, TO BE AND, IN THE ABSENCE OF BAD
FAITH OR FRAUD--- NOT SHOWN TO HAVE BEEN PRESENT--- THE GOVERNMENT
INCURS NO LEGAL OBLIGATION SHOULD IT LATER BE ESTABLISHED THAT AN HONEST
ERROR IN JUDGMENT WAS MADE WITH RESPECT TO SOME DETAIL OF THE
DESCRIPTION USED.
REGARDING YOUR STATEMENT THAT UNDERWEAR AND OTHER ITEMS WERE INCLUDED
IN THE SHIPMENT OF THE SWEATERS TO YOU, THE CHIEF OF THE REDISTRIBUTION
AND MARKETING SECTION OF THE DEPOT, WHO COUNTED AND PACKED THE SWEATERS
IN ORDER TO EXPEDITE THE SHIPMENT, HAS STATED THAT THERE WERE NO PARTS
OF SWEATERS OR UNDERWEAR INCLUDED IN THE SHIPMENT.
B-140137, JUL. 27, 1959
TO MR. HAMILTON MORTON, CONTRACTING OFFICER, UNITED STATES
INFORMATION AGENCY:
REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1959, REQUESTING A
DECISION AS TO THE ACTION TO BE TAKEN IN CONNECTION WITH A BID RECEIVED
FROM THE GENERAL ELECTRIC COMPANY PURSUANT TO INVITATION NO.
59-214-19-/B), ISSUED BY THE UNITED STATES INFORMATION AGENCY ON JUNE 8,
1959.
THE INVITATION REQUESTED BIDS FOR FURNISHING VARIOUS ITEMS OF
TRANSMITTING AND POWER ELECTRONIC TUBES FOR USE BY THE OVERSEAS RELAY
BASES OF THE VOICE OF AMERICA. BIDS WERE REQUESTED ON THE BASIS OF
DELIVERY F.O.B. U.S. INFORMATION AGENCY WAREHOUSE, BROOKLYN, NEW YORK
(OPTION A), AND/OR F.O.B. BROADCASTING STATION, COUNTRY OF IMPORTATION
(OPTION B). ARTICLE X OF THE INVITATION ENTITLED "WARRANTY," PROVIDES,
IN PERTINENT PART, THAT---
"ALL TUBES SHALL BE WARRANTED, FOR A PERIOD OF TWENTY-FOUR (24)
MONTHS FROM DATE OF SHIPMENT, TO BE FREE FROM DEFECTS IN WORKMANSHIP,
MATERIALS AND CONSTRUCTION * * *.'
IN ITS BID, GENERAL ELECTRIC TAKES EXCEPTION TO THE WARRANTY CLAUSE
OF THE INVITATION, STATING THAT ITS QUOTATION IS BASED ON ITS STANDARD
C-1000 WARRANTY ONLY, WHICH, AMONG OTHER THINGS, REDUCES, FROM
TWENTY-FOUR TO EIGHTEEN, THE NUMBER OF MONTHS AFTER SHIPMENT IN WHICH
THE WARRANTY MAY BE INVOKED.
UNDER OPTION A, ITEM 50, TUBE TYPE 869B, THE GENERAL ELECTRIC COMPANY
QUOTED A PRICE OF $62.57 EACH. THREE OTHER BIDS ON THIS ITEM RANGED
FROM $105 TO $133 EACH. UPON REQUEST FOR VERIFICATION OF ITS BID,
GENERAL ELECTRIC REPLIED THAT IT HAD MADE A TYPOGRAPHICAL ERROR IN ITS
BID IN THAT IT HAD INTENDED TO BID $82.57 INSTEAD OF $62.57 EACH FOR
ITEM 50 AND HAS FURNISHED PRICE LIST INFORMATION TO SUPPORT THE
ALLEGATION OF ERROR.
ON THE BASIS OF THE FOREGOING, YOU REQUEST TO BE ADVISED WHETHER THE
EXCEPTION TAKEN BY GENERAL ELECTRIC TO THE WARRANTY PROVISIONS OF THE
INVITATION MAY BE WAIVED AS A MINOR DEVIATION IN THE CASE OF ITEM 50
AND, ALSO, AS TO ITEMS 46 AND 52 WITH RESPECT TO WHICH THE COMPANY MIGHT
ALSO BE IN LINE FOR AWARD AS TO THE SOLE BIDDER.
THE DECISIONS OF OUR OFFICE ARE UNIFORM IN HOLDING THAT A BIDDER MAY
NOT QUALIFY ITS PROPOSAL IN SUCH A MANNER AS TO MATERIALLY VARY THE
ADVERTISED TERMS OF THE INVITATION. IN OUR DECISION OF AUGUST 20, 1954,
34 COMP. GEN. 82, WE HELD THAT PUBLIC OFFICERS MAY NOT ACCEPT BIDS NOT
COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS; NOR MAY THEY
PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER BIDS ARE OPENED. SEE,
ALSO, 17 COMP. GEN. 554.
WHILE, IN THE PRESENT CASE, IT IS SPECULATIVE AS TO THE EXTENT THAT
THE PRICE MAY HAVE BEEN AFFECTED, IT SEEMS CLEAR THAT THE STATED
EXCEPTION TO THE WARRANTY PROVISIONS OF THE INVITATION CONSTITUTES A
DEVIATION WHICH GOES TO THE PRICE AND THE QUALITY (30 COMP. GEN. 179),
AND IT IS ENTIRELY CONCEIVABLE THAT THE OTHER BIDDERS ON ITEM 50 MIGHT
HAVE SUBMITTED LOWER BIDS HAD THEY BEEN PERMITTED TO INCLUDE IN THEIR
BIDS A WARRANTY PROVISION LESS STRINGENT THAN THAT CONTAINED IN THE
INVITATION. CONSEQUENTLY, SINCE GENERAL ELECTRIC'S BID ON ITEM 50 IS
NOT RESPONSIVE TO THE INVITATION, IT SHOULD BE DISREGARDED AND,
THEREFORE, IT BECOMES UNNECESSARY TO CONSIDER THE ALLEGATION OF ERROR IN
CONNECTION WITH THAT ITEM.
REGARDING ITEMS 46 AND 52, WE FEEL THAT GENERAL ELECTRIC'S BID
THEREON LIKEWISE SHOULD BE REJECTED AND THE NEED FOR THESE TWO ITEMS
READVERTISED, IN THE ABSENCE OF INFORMATION WHICH WOULD INDICATE THAT
THE OTHER PROSPECTIVE BIDDERS WOULD NOT HAVE SUBMITTED BIDS ON THE BASIS
OF AN EIGHTEEN MONTHS WARRANTY PROVISION RATHER THAN TWENTY-FOUR MONTHS,
AS PROVIDED IN THE INVITATION.
B-138648, JUL. 24, 1959
TO SUNROC CORPORATION:
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 28, 1959,
REGARDING OUR SETTLEMENT OF JANUARY 21, 1959, WHICH DISALLOWED YOUR
CLAIM FOR $455.01 REPRESENTING DISCOUNT ALLEGED TO HAVE BEEN IMPROPERLY
DEDUCTED UNDER GENERAL SERVICES ADMINISTRATION CONTRACTS NOS.
GS-00S-19521 AND GS-00S-19522 DATED SEPTEMBER 2, 1958.
UNDER THE CONTRACTS YOU AGREED TO FURNISH TO THE GENERAL SERVICES
ADMINISTRATION, FEDERAL SUPPLY SERVICE, NATIONAL BUYING DIVISION,
CERTAIN QUANTITIES OF ELECTRIC WATER COOLERS FOR A TOTAL PRICE OF
$30,273.08 FOR EACH CONTRACT. A PROMPT PAYMENT DISCOUNT OF 10 PERCENT,
20 CALENDAR DAYS WAS ALLOWED UNDER BOTH CONTRACTS. AFTER RECEIPT OF A
NUMBER OF THE PURCHASE ORDERS UNDER THE CONTRACTS IT APPEARS THAT YOU
EXECUTED CERTAIN ASSIGNMENT PAPERS ON OR ABOUT SEPTEMBER 11, 1958,
NAMING THE CHICAGO NATIONAL BANK AS ASSIGNEE UNDER THE SAID ORDERS.
PAYMENTS OF INVOICES NOS. HO-222 AND HO-224 UNDER CONTRACT NO.
GS-00S-19521 AND INVOICES NOS. HO-223 AND HO-225 UNDER CONTRACT NO.
GS-00S-19522 WERE WITHHELD PENDING CERTAIN CORRECTIONS NECESSARY TO BE
MADE ON THE ASSIGNMENTS. PAYMENTS WERE MADE ON THE INVOICES LESS THE
DISCOUNT OF $455.01 TO THE CHICAGO NATIONAL BANK ON OCTOBER 29, 1958,
WHICH WAS THE DAY FOLLOWING THE DATE THE ASSIGNMENT PAPERS WERE ACCEPTED
AS CORRECT BY THE GENERAL SERVICES ADMINISTRATION. THIS RESULTED IN
YOUR CLAIM FOR THE ALLEGED UNACCRUED DISCOUNT THAT WAS TAKEN.
FOLLOWING A CONFERENCE OF YOUR MR. MORRISON WITH REPRESENTATIVES OF
OUR OFFICE YOUR LETTER DATED APRIL 8, 1959, WAS RECEIVED SETTING FORTH
ADDITIONAL FACTS IN THE MATTER. A REPORT WAS REQUESTED FROM THE GENERAL
SERVICES ADMINISTRATION WITH RESPECT TO THE CONTENTS OF YOUR LETTER AND
THE REPORT NOW HAS BEEN RECEIVED. BY LETTER DATED MAY 27, 1959, THE
GENERAL SERVICES ADMINISTRATION ALSO FORWARDED TO OUR OFFICE FOR
SETTLEMENT YOUR CLAIM IN THE TOTAL AMOUNT OF $1,458.37 FOR DISCOUNTS
ALSO ALLEGEDLY IMPROPERLY TAKEN IN THE PAYMENT OF INVOICES NO.S HO-216
AND HO-220 UNDER CONTRACT NO. GS-00S-19521 AND INVOICES NO.S HO-217 AND
HO-221 UNDER CONTRACT NO. GS-00S-19522. THIS ADDITIONAL CLAIM WAS THE
SUBJECT OF YOUR LETTER OF APRIL 2, 1959, TO THE GENERAL SERVICES
ADMINISTRATION--- COPY TO OUR OFFICE--- AND APPEARS TO INVOLVE
CIRCUMSTANCES IDENTICAL TO THOSE ATTENDING YOUR CLAIM FOR $455.01.
THEREFORE, BOTH CLAIMS WILL BE HERE CONSIDERED.
FROM YOUR CORRESPONDENCE OF RECORD AS WELL AS THE INFORMATION
INFORMALLY FURNISHED BY MR. MORRISON YOUR POSITION IN THE MATTER
APPEARS TO BE THAT THE ASSIGNMENT PAPERS WERE PROPERLY PREPARED FROM THE
INFORMATION AVAILABLE TO YOU AT THE TIME YOU EXECUTED THE ASSIGNMENTS
AND, THEREFORE, ANY CORRECTIONS OR ADJUSTMENTS WHICH LATER BECAME
NECESSARY ON THE ASSIGNMENT PAPERS WERE CAUSED BY ERRORS MADE, OR
CHANGES DESIRED, BY THE GENERAL SERVICES ADMINISTRATION IN THE CONTRACT
TERMS. THIS BEING THE CASE YOU CONTEND THAT THE DISCOUNT ONLY COULD
HAVE BEEN PROPERLY EARNED BY THE PAYMENT OF THE SUBJECT INVOICES WITHIN
20 DAYS AFTER RECEIPT THEREOF.
ARTICLE 8A OF THE GENERAL PROVISIONS OF STANDARD FORM 32, OCTOBER
1957 EDITION, WAS INCORPORATED IN AND MADE A PART OF CONTRACTS NOS.
GS-00S-19521 AND GS-00S-19522. THE ARTICLE IS APPLICABLE TO THIS TYPE
OF DEFINITE QUANTITY CONTRACT IN EXCESS OF $1,000 AND EXPRESSLY
PROVIDES, IN EFFECT, THAT CLAIMS FOR MONEYS DUE THE CONTRACTOR MAY BE
ASSIGNED BUT THAT SUCH ASSIGNMENT SHALL COVER ALL AMOUNTS PAYABLE. IN
YOUR LETTER OF APRIL 2, 1959, TO THE GENERAL SERVICES ADMINISTRATION YOU
STATED: "ON SEPTEMBER 11, 1958 WE ASSIGNED YOUR PURCHASE ORDERS, WHICH
WERE DATED SEPTEMBER 4, 1958 TO THE CHICAGO NATIONAL BANK AS YOUR
CONTRACTS WERE NOT ON HAND AT THAT TIME. THE FORMAL CONTRACTS WERE NOT
RECEIVED FROM YOU UNTIL SEPTEMBER 22, 1958.' ON THE BASIS OF THIS
STATEMENT AND OTHER INDICATIONS IN THE RECORD THERE CAN BE LITTLE, IF
ANY, DOUBT THAT YOU FIRST ATTEMPTED TO ASSIGN THE MONEYS DUE UNDER
INDIVIDUAL PURCHASE ORDERS ISSUED UNDER THE CONTRACTS--- PERMITTED ONLY
ON INDEFINITE QUANTITY CONTRACTS UNDER ARTICLE 16 OF THE SUPPLEMENTAL
PROVISIONS, GSA FORM 1424, NOVEMBER 1957 EDITION--- RATHER THAN TO
ASSIGN ALL THE MONEYS DUE OR TO BECOME DUE UNDER THE CONTRACTS AS A
WHOLE AS CONTEMPLATED BY ARTICLE 8A. WHILE THE CONTRACTS LATER WERE
ASSIGNED AND ULTIMATELY ACCEPTED BY THE GENERAL SERVICES ADMINISTRATION
AS BEING IN PROPER FORM, THE RECORD BEFORE US APPEARS TO SUBSTANTIATE
OUR BELIEF THAT THE DELAY IN PERFECTING THE ASSIGNMENT PAPERS WAS
LARGELY, IF NOT WHOLLY, ATTRIBUTABLE TO THE ATTEMPTED ASSIGNMENT BY YOU
OF THE MONEYS DUE UNDER THE PURCHASE ORDERS INDIVIDUALLY. THIS
CONCLUSION APPEARS CONFIRMED BY THE GENERAL SERVICES ADMINISTRATION
LETTER OF OCTOBER 14, 1958, TO THE CHICAGO NATIONAL BANK WHEREIN IT WAS
STATED THAT "AN ASSIGNMENT MUST COVER ALL MONEYS DUE OR TO BECOME DUE,
AND THAT TRANSFER OF A PORTION OF MONEY DUE ONE CONTRACT CANNOT BE
TRANSFERRED TO ANOTHER CONTRACT.' IN THAT LETTER IT WAS THEREFORE
REQUESTED THAT THE INSTRUMENTS OF ASSIGNMENTS BE REVISED TO REFLECT THE
REFERRED-TO CORRECT TOTAL CONTRACT PRICES.
IN VIEW OF THE FOREGOING, AND SINCE PAYMENTS ON ALL OF THE INVOICES
WITH WHICH WE ARE HERE CONCERNED APPEAR TO HAVE BEEN MADE WITHIN THE
20-DAY ALLOWABLE DISCOUNT PERIOD AFTER THE INSTRUMENTS OF ASSIGNMENTS
WERE PERFECTED AND ACCEPTED BY THE GENERAL SERVICES ADMINISTRATION, IT
ONLY REASONABLY MAY BE CONCLUDED THAT THE DISCOUNT TAKEN WAS PROPERLY
EARNED.
ACCORDINGLY, THE SETTLEMENT OF JANUARY 21, 1959, IS SUSTAINED. ALSO,
YOUR INITIAL CLAIM FOR THE ADDITIONAL AMOUNT OF $1,458.37 IS DISALLOWED
FOR LIKE REASONS.
NO REPORT TO DATE HAS BEEN RECEIVED FROM THE GENERAL SERVICES
ADMINISTRATION WITH RESPECT TO THE AMOUNTS OF $583.35 AND $991.70 ALSO
CLAIMED IN YOUR LETTER OF APRIL 2, 1959, TO THE GENERAL SERVICES
ADMINISTRATION UNDER INVOICES NOS. HO-215 AND HO-227, RESPECTIVELY.
UPON RECEIPT OF THEIR REPORT REGARDING THESE ITEMS WE WILL ADVISE YOU OF
OUR CONCLUSIONS THEREON.
B-139023, B-139927, JUL. 24, 1959
TO KING AND KING:
REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1959, WITH POWER OF
ATTORNEY ATTACHED, PRESENTING A CLAIM ON BEHALF OF EUGENE JOSEPH
CHRISTIAN FOR THE DIFFERENCE BETWEEN DISABILITY RETIRED PAY AS INCREASED
BY CREDIT FOR YEARS OF ACTIVE DUTY PLUS YEARS OF INACTIVE DUTY IN THE
FLEET RESERVE AND THE RETIRED PAY ACTUALLY RECEIVED BY HIM FROM OCTOBER
1, 1949, TO THE DATE OF SETTLEMENT OF THE CLAIM.
YOU SAY THAT THE CLAIMANT IS ALSO ONE OF THE PLAINTIFFS IN THE CLASS
ACTION OF FRANK ALOIS BRANDENSTEIN, ET AL. V. UNITED STATES, C.CLS.NO.
98-59, FILED IN THE UNITED STATES COURT OF CLAIMS TO RECOVER INCREASED
DISABILITY RETIRED PAY FOR PART OF THE PERIOD COVERED BY YOUR CLAIM. IT
IS PRESUMED, THEREFORE, THAT YOU ARE FILING THIS CLAIM TO TOLL THE
TEN-YEAR STATUTE OF LIMITATIONS APPLICABLE TO CLAIMS FILED IN THIS
OFFICE. INASMUCH AS THE SAME LEGAL QUESTIONS ARE INVOLVED IN THE
BRANDENSTEIN CASE AND THE CLAIM FILED HERE--- EXCEPT FOR THE DIFFERENT
LIMITATION PERIOD FOR FILING CLAIMS IN THE GENERAL ACCOUNTING OFFICE AND
CASES FILED IN THE COURT OF CLAIMS, ACT OF OCTOBER 9, 1940, 54 STAT.
1061, AND 28 U.S.C. 2501, RESPECTIVELY--- NO ACTION WILL BE TAKEN ON THE
CLAIM PENDING THE CONCLUSION OF THE JUDICIAL PROCEEDINGS NOW BEFORE THE
COURT.
FOR YOUR INFORMATION, THIS OFFICE HAS BEEN ADVISED BY THE DEPARTMENT
OF JUSTICE THAT ON MAY 20, 1959, EUGENE JOSEPH CHRISTIAN, FILED A
PETITION AS PLAINTIFF IN A CASE ENTITLED EUGENE JOSEPH CHRISTIAN V.
UNITED STATES, C.CLS.NO. 220-59, IN THE UNITED STATES COURT OF CLAIMS TO
RECOVER INCREASED DISABILITY RETIRED PAY FROM OCTOBER 1, 1949, TO THE
PRESENT TIME COMPUTED ON THE BASIS OF 100 PERCENT DISABILITY RATHER THAN
ON THE BASIS OF 20 YEARS OF CREDITABLE SERVICE FOR RETIREMENT PAY
PURPOSES.
B-139715, JUL. 24, 1959
TO CAPTAIN J. S. GRAY, JR., USN:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 8, 1959, IN EFFECT
REQUESTING REVIEW OF THE SETTLEMENT OF NOVEMBER 21, 1955, WHICH
DISALLOWED YOUR CLAIM FOR REFUND OF $711.06, REPRESENTING THE AMOUNT
COLLECTED FROM YOU AS THE COST OF SHIPPING HOUSEHOLD EFFECTS IN EXCESS
OF YOUR AUTHORIZED WEIGHT ALLOWANCE FROM THE UNITED STATES TO NAPLES,
ITALY.
BY BUREAU OF NAVAL PERSONNEL ORDERS DATED SEPTEMBER 18, 1952, YOU
WERE TRANSFERRED FROM THE U.S.S. CORAL SEA (CVB-143) TO DUTY WITH THE
COMMANDER, FLEET AIR, EASTERN ATLANTIC AND MEDITERRANEAN. THE RECORD
INDICATES THAT YOU ORIGINALLY REQUESTED THE SUPPLY OFFICER, NAVAL GUN
FACTORY, WASHINGTON, D.C., TO SHIP CERTAIN HOUSEHOLD EFFECTS TO
NONTEMPORARY STORAGE IN THE UNITED STATES AND TO SHIP CERTAIN OTHER
EFFECTS TO YOU AT NAPLES, ITALY. ON DECEMBER 31, 1952, YOU SENT
MESSAGE TO THE HOUSEHOLD EFFECTS SECTION, NAVAL GUN FACTORY,
WASHINGTON, D.C., REQUESTING THAT ALL YOUR HOUSEHOLD EFFECTS BE SHIPPED
TO NAPLES AND THAT NONE BE SHIPPED TO STORAGE IN THE UNITED STATES. THE
RECORD INDICATES THAT THE MESSAGE REACHED THE NAVAL GUN FACTORY ONE DAY
BEFORE A SHIPMENT OF YOUR EFFECTS (SHIPMENT NO. 4) PURSUANT TO EARLIER
ARRANGEMENTS, WAS MADE TO MECHANICSBURG, PENNSYLVANIA, FOR NONTEMPORARY
STORAGE. SUBSEQUENTLY, THOSE EFFECTS WERE RESHIPPED TO BAYONNE, NEW
JERSEY, FOR TRANSSHIPMENT TO NAPLES, ITALY. NO PART OF THE CHECKAGE
AGAINST YOUR PAY WAS MADE BY REASON OF THE FACT THAT SHIPMENT FROM
WASHINGTON TO BAYONNE WAS MADE VIA MECHANICSBURG. IN THE SETTLEMENT OF
NOVEMBER 21, 1955, THERE WAS CONSIDERED THE TOTAL WEIGHT OF THE EFFECTS
SHIPPED TO YOUR OVERSEAS RESIDENCE AND THE REGULATIONS APPLICABLE TO THE
SHIPMENT OF HOUSEHOLD EFFECTS IN EXCESS OF YOUR AUTHORIZED ALLOWANCE.
IN YOUR PRESENT LETTER YOU STATE THAT TWO ERRORS ON THE PART OF THE
SUPPLY OFFICER, NAVAL GUN FACTORY, WASHINGTON, D.C., ARE INVOLVED: "/1)
SENDING THE WRONG SHIPMENT OF EFFECTS TO STORAGE AND (2) AFTER HAVING
RECEIVED A MESSAGE ASKING THAT NOTHING BE STORED, PERMITTING THIS
SHIPMENT TO BE SENT TO MECHANICSBURG FOR LONG TIME STORAGE.' YOU STATE
THAT THE IMPROPER SHIPMENT OF YOUR EFFECTS CAUSED YOU AND YOUR FAMILY TO
LIVE IN A HOTEL, WITH INCREASED PERSONAL EXPENSE FOR MORE THAN FOUR
MONTHS. IT IS YOUR CONTENTION THAT NO OFFICER SHOULD BE OUT OF POCKET
DUE TO ERRORS COMMITTED BY A GOVERNMENT AGENCY.
THEREFORE, YOU REQUEST RECONSIDERATION ON THE BASIS OF RESPONSIBILITY
FOR ERROR RATHER THAN ON THE NET WEIGHT OF THE EFFECTS SHIPPED.
THE RECORD DOES NOT ESTABLISH WHY YOUR MESSAGE OF DECEMBER 31, 1952,
DID NOT RESULT IN ACTION BY THE SUPPLY OFFICER AT THE NAVAL GUN FACTORY
TO PREVENT SHIPMENT NO. 4 OF YOUR EFFECTS FROM GOING FORWARD TO
MECHANICSBURG, PENNSYLVANIA, FOR NONTEMPORARY STORAGE. HOWEVER, THAT
MATTER IS NOT MATERIAL HERE SINCE NO INCREASED SHIPPING COSTS WERE
CHARGED TO YOU AS A RESULT OF SUCH SHIPMENT. IF, AS INDICATED, SUCH
SHIPMENT CAUSED A DELAY IN THEIR BEING MOVED TO NAPLES AND YOU INCURRED
ADDITIONAL EXPENSE AS THE RESULT OF NOT BEING ABLE TO ESTABLISH A
HOUSEHOLD IN NAPLES AT AN EARLIER DATE, SUCH DELAY FURNISHES NO BASIS
FOR A CLAIM AGAINST THE GOVERNMENT, SINCE IT IS WELL ESTABLISHED THAT IN
THE ABSENCE OF A STATUTE SO PROVIDING, THE GOVERNMENT IS NOT LIABLE FOR
LOSS OR DAMAGE RESULTING FROM NEGLIGENT ACTS OR OMISSIONS OF DUTY OF
OFFICERS OR AGENTS EMPLOYED IN THE PUBLIC SERVICE. SEE ROBERTSON V.
SICHEL, 127 U.S. 507, 515, AND CASES THERE CITED.
CONCERNING YOUR STATEMENT THAT "UNNECESSARY EFFECTS WEIGHED
SUFFICIENTLY TO HAVE ELIMINATED OVERWEIGHT CHARGES HAD THEY BEEN STORED
AS ORIGINALLY REQUESTED AND NOT SHIPPED TO ITALY"--- PRESUMABLY YOU
REFER TO SHIPMENT NO. 2--- IT APPEARS THAT SUCH EFFECTS WERE SHIPPED
PURSUANT TO DIRECTIONS IN YOUR MESSAGE OF DECEMBER 31, 1952, REQUESTING
SHIPMENT OF "ALL" HOUSEHOLD EFFECTS AND DIRECTING THAT "NO ITEMS" BE
STORED IN THE UNITED STATES. IN YOUR LETTER OF JANUARY 12, 1954,
TO THE NAVY REGIONAL ACCOUNTS OFFICE, YOU STATED THAT YOUR MESSAGE
"REQUESTED IMMEDIATE SHIPMENT OF THE BULK OF ALL MY EFFECTS" BUT THAT
ABOUT HALF OF THESE (SHIPMENT NO. 4) WERE ERRONEOUSLY SENT TO STORAGE
BEFORE BEING SHIPPED TO NAPLES. THE RECORD CONTAINS NO EVIDENCE THAT
YOU HAVE PREVIOUSLY REGARDED SHIPMENT NO. 2 AS UNNECESSARY OR THAT IT
WAS MADE AGAINST YOUR WILL. THE SHIPMENT WAS RECEIVED BY YOU IN NAPLES
ON MARCH 20, 1953, AND APPARENTLY WAS SHIPPED AFTER DECEMBER 31, 1952.
IT INCLUDED DISHES WHICH ARE A NECESSARY PART OF MOST HOUSEHOLDS.
ACCORDINGLY, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM
AND THE SETTLEMENT OF NOVEMBER 21, 1955, IS SUSTAINED.
B-139746, JUL. 24, 1959
TO THE SECRETARY OF THE NAVY:
ON MAY 26, 1959, (FILE NCA1411), ADMIRAL G. F. BEARDSLEY, OFFICE OF
THE COMPTROLLER, DEPARTMENT OF THE NAVY, FORWARDED HERE A LETTER DATED
APRIL 30, 1959 (FILE OIR 250:IB), FROM THE CHIEF OF INDUSTRIAL
RELATIONS, REQUESTING OUR DECISION AS TO WHETHER FREDERICKTOWN,
MISSOURI, MAY BE CONSIDERED AS MR. CLAYTON MCKINZIE'S ACTUAL PLACE OF
RESIDENCE FOR HOME LEAVE TRAVEL EXPENSE PURPOSES.
MR. MCKINZIE AND FAMILY (WIFE, AND DAUGHTER AGE 11), PERFORMED ROUND
TRIP TRAVEL FROM HIS DUTY STATION ON GUAM, MARIANAS ISLANDS, TO
FREDERICKTOWN, MISSOURI, BETWEEN DECEMBER 19, 1958, AND FEBRUARY 5,
1959, AT PERSONAL EXPENSE. AT THE TIME OF THE TRAVEL, HE WAS ASSIGNED
TO THE NAVAL AIR STATION, AGANA, GUAM. ALTHOUGH HE WAS IN HAWAII ON
JULY 25, 1956, THE DATE HE EXECUTED A RENEWAL AGREEMENT FOR ANOTHER TOUR
OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES, AND HAD RESIDED THERE FOR
OVER 20 YEARS PRIOR TO 1954, HE CONTENDS THAT IN JULY 1956, HIS ACTUAL
RESIDENCE WAS AT FREDERICKTOWN, MISSOURI. ONE AFFIDAVIT ON FILE READS,
AS FOLLOWS:
"I BENJAMINE L. TINNIN, ASSOCIATE JUDGE 2ND DISTRICT MADISON COUNTY
COURT, DO HEREBY CERTIFY THAT WILLIAM CLAYTON MCKINZIE WAS A RESIDENT OF
MADISON COUNTY IN THE STATE OF MISSOURI ON JULY 25, 1956. HE WAS BORN
IN THE STATE OF MISSOURI; HE ENLISTED IN THE U.S. ARMY IN MISSOURI AND
HAS ALWAYS MAINTAINED MISSOURI AS HIS LEGAL RESIDENCE.'
THE RECORD AVAILABLE HERE INDICATES THAT MR. MCKINZIE HAD RESIDED IN
HAWAII MORE THAN NINE YEARS BEFORE HE BECAME A FEDERAL EMPLOYEE--- HIS
FIRST EMPLOYMENT WITH THE DEPARTMENT OF THE NAVY IS SHOWN TO HAVE BEEN
AT PEARL HARBOR, HAWAII, IN 1942. IN OCTOBER 1942 HE REPORTED 1770 LIME
STREET, HONOLULU, HAWAII, TO BE HIS RESIDENCE AND THE PLACE WHERE HE HAD
THEN RESIDED FOR SIX MONTHS. IT APPEARS HE HAS BEEN EMPLOYED
INTERMITTENTLY BY THE GOVERNMENT IN HAWAII SINCE 1942, AND THE RECORD
CONTAINS A NUMBER OF OTHER ADDRESSES IN HAWAII WHICH, PRIOR TO 1956, HE
SPECIFICALLY REPORTED AS HIS PLACE OF RESIDENCE.
MR. MCKINZIE, AS INDICATED ABOVE, IS SHOWN TO HAVE RESIDED IN HAWAII
CONTINUOUSLY FROM 1932 UNTIL 1954, WHEN HE WAS TRANSFERRED TO MIDWAY
ISLAND. SUBSEQUENTLY (ON AUGUST 19, 1957), HE WAS TRANSFERRED TO HIS
PRESENT POSITION WITH THE NAVAL AIR STATION, AGANA, GUAM.
NOTWITHSTANDING THE HAWAIIAN RESIDENCES REFERRED TO HEREIN AND THE
LENGTH OF TIME DURING WHICH THE CLAIMANT HAS BEEN ABSENT FROM THE UNITED
STATES, HE ALLEGES THAT BLOCK I OF HIS "ORIGINAL EMPLOYMENT AGREEMENT"
DATED JULY 25, 1956, ERRONEOUSLY SHOWED AN ADDRESS IN HAWAII RATHER THAN
FREDERICKTOWN, MADISON COUNTY, MISSOURI, AS HIS PLACE OF RESIDENCE. HE
SPECIFICALLY REFERS TO THE REGULATIONS OF THE DEPARTMENT OF THE NAVY
(NCPI 240. 3-7) WHICH PERMIT THE CORRECTION OF THE RECORD TO SHOW THE
PLACE OF ACTUAL RESIDENCE AT THE TIME OF HIS ASSIGNMENT TO OVERSEAS
DUTY. HE EXPRESSES THE VIEW THAT OUR DECISIONS IN 34 COMP. GEN. 540,
AND 35 ID. 270, WARRANT ALLOWANCE OF THE TRANSPORTATION EXPENSES
CLAIMED. THERE IS NOTHING IN THE RECORD TO SHOW THAT THE CLAIMANT HAS
HERETOFORE PRESENTED A SIMILAR CLAIM FOR TRAVEL EXPENSES FROM AN
OVERSEAS LOCATION TO FREDERICKTOWN, MISSOURI. HE REPORTS THAT DURING
THE PERIOD OF HIS LONG ABSENCE FROM THE UNITED STATES NO ATTEMPT WAS
EVER MADE TO EXERCISE THE RIGHT OF SUFFRAGE IN THE STATE OF MISSOURI BY
ABSENTEE BALLOT, BUT HE SAYS THIS IS SO BECAUSE VOTING LAWS IN MISSOURI,
MAKE IT PRACTICALLY IMPOSSIBLE TO FILE ABSENTEE BALLOTS. MOREOVER, NO
ORDERS WERE ISSUED AUTHORIZING THE TRAVEL FOR WHICH REIMBURSEMENT IS
REQUESTED, AND PAYMENT OF THE SUM CLAIMED IS ADMINISTRATIVELY
DISAPPROVED, IT HAVING BEEN DETERMINED ADMINISTRATIVELY THAT THE
CLAIMANT'S PLACE OF ACTUAL RESIDENCE WAS NOT IN THE UNITED STATES ON THE
DATE OF HIS APPOINTMENT.
THE STATUTORY AUTHORITY FOR THE PAYMENT OF EXPENSES FOR ROUND-TRIP
TRAVEL OF EMPLOYEES AND THEIR IMMEDIATE FAMILIES FROM POSTS OF DUTY
OUTSIDE THE CONTINENTAL UNITED STATES TO PLACES OF ACTUAL RESIDENCE IN
THE UNITED STATES FOR THE PURPOSE OF HOME LEAVE IS CONTAINED IN THE ACT
OF AUGUST 31, 1954, 68 STAT. 1008, 5 U.S.C. 73B-3. THAT ACT PROVIDES,
IN PERTINENT PART, AS FOLLOWS:
"* * * THAT EXPENSES OF ROUND TRIP TRAVEL OF EMPLOYEE AND
TRANSPORTATION OF IMMEDIATE FAMILY BUT EXCLUDING HOUSEHOLD EFFECTS, FROM
THEIR POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO
THE PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR TRANSFER TO
TO SUCH OVERSEAS POSTS OF DUTY, SHALL BE ALLOWED IN THE CASE OF PERSONS
WHO HAVE SATISFACTORILY COMPLETED AN AGREED PERIOD OF SERVICE OVERSEAS
AND ARE RETURNING TO THEIR ACTUAL PLACE OF RESIDENCE FOR THE PURPOSE OF
TAKING LEAVE PRIOR TO SERVING ANOTHER TOUR OF DUTY AT THE SAME OR SOME
OTHER OVERSEAS POST, UNDER A NEW WRITTEN AGREEMENT ENTERED INTO BEFORE
DEPARTING FROM THE OVERSEAS POST. * * *.'
SECTION 27 (B), TITLE VI OF EXECUTIVE ORDER NO. 9805, GOVERNING THE
ALLOWANCE OF TRAVEL AND TRANSPORTATION IN CONNECTION WITH LEAVE FOR
RETURNING TO PLACE OF RESIDENCE BETWEEN TOURS OF OVERSEAS DUTY, READS IN
PERTINENT PART AS FOLLOWS:
"/B) TRAVEL ALLOWANCE. AN ELIGIBLE EMPLOYEE SHALL BE ALLOWED TRAVEL
EXPENSES * * * FOR HIMSELF AND TRANSPORTATION EXPENSES FOR HIS IMMEDIATE
FAMILY FROM HIS POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO
THE PLACE OF HIS ACTUAL RESIDENCE AT THE TIME OF HIS APPOINTMENT OR
TRANSFER TO A POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES
(HEREINAFTER REFERRED TO IN THIS SECTION AS "PLACE OF ACTUAL RESIDENCE")
AND FROM SUCH PLACE OF ACTUAL RESIDENCE TO THE SAME OR ANOTHER POST OF
DUTY OUTSIDE THE CONTINENTAL UNITED STATES * * *.'
NAVY CIVILIAN PERSONNEL INSTRUCTIONS 240.3-7 (IN EFFECT ON AND AFTER
MAY 1, 1957), PROVIDE, IN PERTINENT PART, AS FOLLOWS:
"* * * THE OBLIGATIONS OF THE GOVERNMENT FOR RETURN TRANSPORTATION
FOR PURPOSES OF SEPARATION AND FOR ROUND-TRIP TRAVEL UNDER A RENEWAL
AGREEMENT ARE LIMITED TO EXPENSES NECESSARY FOR RETURN TO SUCH PLACE OF
ACTUAL RESIDENCE. WHEN AN ORIGINAL EMPLOYMENT AGREEMENT IS NEGOTIATED,
A DETERMINATION OF THE PLACE OF ACTUAL RESIDENCE OF THE EMPLOYEE SHALL
BE MADE AND SUCH PLACE OF ACTUAL RESIDENCE SHOWN IN THE EMPLOYEE'S
COMPLETED AGREEMENT SHALL BE ENTERED IN BLOCK I OF THE RENEWAL AGREEMENT
UNLESS IT IS DETERMINED THAT AN ERROR WAS MADE IN DETERMINING THE
EMPLOYEE'S PLACE OF ACTUAL RESIDENCE WHEN THE COMPLETED AGREEMENT WAS
EXECUTED. IN SUCH EVENT, THE TRUE PLACE OF ACTUAL RESIDENCE AT THE TIME
OF ASSIGNMENT TO OVERSEAS DUTY SHOULD BE DETERMINED AND ENTERED IN BLOCK
I OF THE RENEWAL AGREEMENT. * * * SUCH FINDING, WHEN THE ISSUE IS
RAISED, SHOULD BE BASED UPON A CONSIDERATION OF ALL FACTORS WHICH MAY BE
PERTINENT SUCH AS PROPERTY OWNERSHIP, PREVIOUS RESIDENCE, VOTING RECORD,
AND EARLIER ACT OF EXPRESSIONS OR INTENTION ON THE PART OF THE EMPLOYEE
* * *.'
THE PHRASE "PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR
TRANSFER" IS NOT DEFINED IN THE STATUTE AS AMENDED, AND NEITHER IS IT
DEFINED IN THE REGULATIONS ISSUED BY THE BUREAU OF THE BUDGET (TITLE VI,
EXECUTIVE ORDER NO. 9805), IMPLEMENTING SUCH STATUTE. THE PLACE
CONSTITUTING THE "ACTUAL RESIDENCE" MUST BE DETERMINED UPON THE FACTS
AND CIRCUMSTANCES IN EACH INDIVIDUAL CASE. THE RESPONSIBILITY FOR THAT
DETERMINATION PRIMARILY IS AN ADMINISTRATIVE ONE.
IN OUR DECISION OF APRIL 20, 1955, 34 COMP. GEN. 540, WE RULED THAT
AN INDIVIDUAL LOCALLY HIRED IN HAWAII WHO CLAIMED HIS ACTUAL RESIDENCE
WAS EAST ST. LOUIS, ILLINOIS, AT THE TIME (1947) HE RECEIVED THE FEDERAL
APPOINTMENT, AND WHO CONTINUED IN THE FEDERAL SERVICE UNTIL 1955, AND
WAS WILLING TO EXECUTE A RENEWAL AGREEMENT FOR FURTHER DUTY OVERSEAS,
WAS ENTITLED TO EXPENSES FOR ROUND TRIP TRAVEL AND TRANSPORTATION FOR
HIMSELF AND FAMILY TO EAST ST. LOUIS, ILLINOIS, FOR THE PURPOSE OF
TAKING HOME LEAVE, PROVIDED, IN FACT, EAST ST. LOUIS WAS HIS RESIDENCE
AS CLAIMED.
ALSO, OUR DECISION OF NOVEMBER 4, 1955 (35 COMP. GEN. 270), HELD THAT
AN INDIVIDUAL GIVEN A FEDERAL APPOINTMENT IN 1943 WHILE RESIDING IN
SEATTLE, WASHINGTON, WHO WAS TRANSFERRED TO ALASKA AND ON MAY 5, 1946,
RESIGNED TO ACCEPT ANOTHER FEDERAL POSITION EFFECTIVE THE FOLLOWING DAY,
WAS ENTITLED TO RETURN TRAVEL TO SEATTLE AT GOVERNMENT EXPENSE IN 1954.
IN EACH OF THE ABOVE-CITED CASES IT APPEARS THAT THE EMPLOYEE'S
SERVICES WITH THE FEDERAL GOVERNMENT WERE CONTINUOUS (WITHOUT BREAK)
FROM THE DATE OF HIS APPOINTMENT UNTIL THE HOME LEAVE TRAVEL HAD BEEN
PERFORMED. MOREOVER, IN EACH INSTANCE THE ENTITLEMENT WAS CONSIDERED
PROPER ONLY UPON A DEFINITE DETERMINATION THAT THE EMPLOYEE'S PLACE OF
RESIDENCE WAS IN THE UNITED STATES AT THE TIME OF SUCH APPOINTMENT.
IN THE LIGHT OF ALL THE FACTS AND CIRCUMSTANCES HERE INVOLVED AS SET
FORTH ABOVE, WE CONCLUDE THAT A FIRM BASIS EXISTS FOR THE ADMINISTRATIVE
DETERMINATION THAT FREDERICKTOWN, MISSOURI, WAS NOT THE CLAIMANT'S
ACTUAL PLACE OF RESIDENCE ON THE DATE OF HIS APPOINTMENT. CONSEQUENTLY,
HE IS NOT ENTITLED TO "HOME LEAVE" TRAVEL EXPENSES AS CLAIMED. SEE 37
COMP. GEN. 119.
THEREFORE, PAYMENT OF THE VOUCHER IS NOT AUTHORIZED. THE VOUCHER AND
RELATED PAPERS ARE RETURNED.
B-139779, JUL. 24, 1959
JOHN L. ROGERS, JR.,:
REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 23, 1958, AND MAY 11,
1959, FILE S-9316, CONCERNING A CLAIM OF THE UNITED STATES AGAINST YOUR
COMPANY IN THE AMOUNT OF $6,170.66 FOR DAMAGES TO RUBBER STORED AT B AND
O PIER 6, ST. GEORGE LIGHTERAGE, STATEN ISLAND, NEW YORK. OF THIS
AMOUNT $6,061.56 WAS DEDUCTED IN MAY 1955, FROM BALTIMORE AND OHIO
RAILROAD BILL NO. 0502416, AND $109.10 FROM OTHER BILLS DUE YOUR
COMPANY. THE SUM OF $6,170.66 WAS COMPUTED ON THE BASIS OF AN ALLOWANCE
TO THE PURCHASER, LITTLEJOHN AND COMPANY, INC., OF TWO CENTS PER POUND
ON 308,533 POUNDS OF CRUDE RUBBER DUE TO THE DETERIORATED CONDITION OF
THE RUBBER AS A RESULT OF STORAGE IN YOUR CUSTODY. IN YOUR LETTER OF
DECEMBER 23, 1958, YOU CONTEND THAT THE GOVERNMENT HAS FAILED TO PROVE
THAT THE BALTIMORE AND OHIO RAILROAD WAS NEGLIGENT IN ITS PERFORMANCE OF
DUTIES AS A WAREHOUSEMAN, AND THAT APART FROM THE QUESTION OF LIABILITY,
THE AMOUNT ALLOWED AS DAMAGES WAS EXCESSIVE, UNREASONABLE AND DOES NOT
REPRESENT A PROPER MEASURE OF DAMAGES TO THE RUBBER.
THE GENERAL SERVICES ADMINISTRATION ON FEBRUARY 1, 1952, UNDER THE
PROVISIONS OF TRUNK LINE TARIFF NO. 116-E, I.C.C. NO. A-931, STORED
1,380 BALES OF LIBERIAN CREPE RUBBER WEIGHING 308,426 POUNDS AT THE
BALTIMORE AND OHIO FACILITY KNOWN AS ST. GEORGE LIGHTERAGE, PIER NO. 6,
STATEN ISLAND, NEW YORK, RULE NO. S-1, ITEM 8000, OF THIS TARIFF, MAKES
THE BALTIMORE AND OHIO RAILROAD COMPANY LIABLE AS A WAREHOUSEMAN FOR THE
STORAGE OF THIS RUBBER.
THE GENERAL SERVICES ADMINISTRATION HAS REPORTED THAT A SURVEY TEAM
ASSIGNED TO INSPECT THE STORED MATERIAL ON OCTOBER 29, 1953, MADE THE
FOLLOWING REPORT, IN PART:
"STORAGE FEATURES--- THE CONTRACTOR ADVISES THERE ARE PRESENTLY
STORED IN THIS PIER WAREHOUSE APPROXIMATELY 300 TONS (3000 BALES) OF
CRUDE RUBBER. THIS MATERIAL IS ALL GOVERNMENT-OWNED STRATEGIC AND
CRITICAL MATERIAL. ALL OF THE RUBBER IS ON SMALL BOARDS USED FOR
DUNNAGE AND AT DIFFERENT LOCATIONS, LARGE PUDDLES OF WATER WERE EVIDENT.
WHILE THESE PRESENT PUDDLES OF WATER WERE NOT IN DIRECT CONTRACT WITH
THE RUBBER, THERE WAS STRONG EVIDENCE OF PREVIOUS WATER HAVING BEEN IN
CONTACT WITH THE RUBBER AND ON MANY PILES. A WATER MARK WAS EVIDENT
ABOUT THREE INCHES ON THE FLOOR OR BOTTOM TIER BALES. THIS DAMAGE IS
SERIOUS AND DEFINITELY ALL CLAIMS FOR THIS DAMAGE SHOULD BE FOR THE
ACCOUNT OF THE BALTIMORE AND OHIO RAILROAD CO. THE PILES ARE ALL
SEPARATED AND NO PILE EXCEEDS SIX FEET IN HEIGHT. AT ANOTHER LOCATION,
HEAT WAS DETECTED ON A LOT OF RUBBER WHICH WAS LOCATED NEAR AN OPEN DOOR
USED FOR LOADING FREIGHT TO RAIL CARS FROM THE PIER. IT IS EVIDENT THAT
THIS DOOR IS ALWAYS OPEN THROUGHOUT THE WORK DAY AND DIRECT SUNLIGHT HAS
CAUSED THIS DAMAGE.'
SUBSEQUENTLY IT WAS LEARNED THAT ON OCTOBER 1, 1953, THERE WAS A FIRE
AT PIER 6, BALTIMORE AND OHIO RAILROAD, STATEN ISLAND, NEW YORK. THE
NEW YORK CITY FIRE DEPARTMENT REPORTS THAT THE ALARM WAS RECEIVED AT
11:31 A.M. THERE WERE PRESENT SIX COMPANIES, TOGETHER WITH A FIREBOAT
AND RESERVE COMPANY. THERE WAS ALSO PRESENT ONE BALTIMORE AND OHIO
R.R.CO. TUGBOAT, AND B AND O EMPLOYEES ALSO OPERATED A HOSE LINE. WHILE
THE FIRE WAS CONFINED TO THE OUTER OR WATER END OF THE
PIER, IT IS REPORTED THAT QUANTITIES OF WATER WERE PLAYED ON THE PIE
STRUCTURE AND ON THE RUBBER ITSELF.
THE NEW YORK CONSOLIDATED LAW SERVICE, VOLUME 4, GENERAL BUSINESS
LAW, SECTION 107 PROVIDES:
"LIABILITY FOR CARE OF GOODS.--- A WAREHOUSEMAN SHALL BE LIABLE FOR
ANY LOSS OR INJURY TO THE GOODS CAUSED BY HIS FAILURE TO EXERCISE SUCH
CARE IN REGARD TO THEM AS A REASONABLY CAREFUL OWNER OF SIMILAR GOODS
WOULD EXERCISE, BUT HE SHALL NOT BE LIABLE, IN THE ABSENCE OF AN
AGREEMENT TO THE CONTRARY, FOR ANY LOSS OR INJURY TO THE GOODS WHICH
COULD NOT HAVE BEEN AVOIDED BY THE EXERCISE OF SUCH CARE.'
WHILE A WAREHOUSEMAN IS NOT RESPONSIBLE FOR INJURY TO GOODS OCCURRING
WITHOUT NEGLIGENCE ON HIS PART, HE IS LIABLE, IN THE ABSENCE OF
AFFIRMATIVE PROOF THAT IT IS NOT NEGLIGENCE, WHERE GOODS ARE
DELIVERED TO HIM IN GOOD CONDITION AND REDELIVERED BY HIM IN BAD
CONDITION. 93 C.J.S., WAREHOUSEMAN AND SAFE DEPOSITARIES SEC. 30 (A).
BULLINGTON V. NEW YORK TERMINAL WAREHOUSE CO., 110 F.SUPP. 728, REVERSED
ON OTHER GROUNDS 213 F.2D 340. IN THE CASE OF GENERAL FOODS CORPORATION
V. BEARD'S ERIE BASIN, INC., 32 N.Y.S.2D 682, A CONSIGNMENT OF COCOA
BEANS WHICH HAD BEEN DELIVERED TO A WAREHOUSE IN GOOD CONDITION WAS
FOUND TO HAVE BEEN DAMAGED BY WATER. THE COURT HELD THAT SUCH A SHOWING
ESTABLISHES A PRIMA FACIE CASE AGAINST THE WAREHOUSEMAN AND THE BURDEN
OF REBUTTING THE PRESUMPTION OF NEGLIGENCE SO CREATED WAS UPON THE
WAREHOUSEMAN.
SINCE THERE HAS BEEN NO SHOWING THAT THE DAMAGES OCCURRED FROM AN
EXCUSABLE CAUSE OR A CAUSE BEYOND YOUR CONTROL, IT MUST BE CONCLUDED
THAT YOUR COMPANY IS LIABLE FOR THE DAMAGES SUSTAINED BY THE GOVERNMENT.
AS TO THE QUESTION OF DAMAGES, THE COURTS HAVE HELD THAT IN FIXING
THE MEASURE OF DAMAGES THE AIM IS TO PROVIDE REIMBURSEMENT FOR THE
ACTUAL LOSS, WHICH IS USUALLY ASCERTAINED BY FINDING THE DIFFERENCE
BETWEEN REASONABLE MARKET VALUE IMMEDIATELY BEFORE AND AFTER THE INJURY.
HOWEVER, THERE IS NO FIXED INFLEXIBLE RULE FOR DETERMINING THE MEASURE
OF DAMAGES FOR INJURY TO PROPERTY, AND WHATEVER FORMULA IS MOST
APPROPRIATE TO COMPENSATE THE INJURED PARTY FOR THE LOSS SUSTAINED IN
THE PARTICULAR CASE WILL BE ADOPTED. SEE WERT V. GEESLIN, 69 SO.2D
718, CERT.DEN. 69 SO.2D 724; BASIN OIL CO. OF CALIFORNIA V. BAASH-ROSS
TOOL CO., 271 P.2D 122. IN THIS INSTANCE THE SALE PRICE OF THE RUBBER
WAS NEGOTIATED WITH LITTLEJOHN AND COMPANY BY ENTIRE LOT. AT THE TIME
OF THE SALE IT WAS KNOWN THAT ALL OF THE BALES WERE NOT DAMAGED AND
APPARENTLY THIS FACT WAS TAKEN INTO CONSIDERATION IN ARRIVING AT THE
ALLOWANCE OF 2 CENTS PER POUND ON THE ENTIRE CONSIGNMENT. IN THE
ABSENCE OF ANY CLEAR SHOWING AS TO WHAT EXTENT THE DAMAGES ARE
EXCESSIVE OR UNREASONABLE, WE HAVE NO ALTERNATIVE BUT TO ACCEPT THE
REPORT OF THE ADMINISTRATIVE AGENCY AS TO THE TOTAL DAMAGES SUSTAINED.
IN YOUR LETTER OF DECEMBER 23, 1958, YOU EXPRESS A DESIRE TO DISCUSS
THIS CLAIM IN DETAIL IN AN EFFORT TO WORK OUT A SATISFACTORY SETTLEMENT.
IN THIS CONNECTION IT SHOULD BE STATED THAT THE DECISIONS OF OUR OFFICE
ARE BASED UPON THE WRITTEN RECORD, AND IF YOU HAVE SOME NEW EVIDENCE
AVAILABLE WHICH HAS NOT BEEN HERETOFORE CONSIDERED, IT SHOULD BE REDUCED
TO WRITING AND FORWARDED TO US FOR OUR CONSIDERATION. HOWEVER,
REPRESENTATIVES OF OUR OFFICE ARE AVAILABLE DURING ANY WORKING DAY, FROM
9 A.M. TO 4 P.M., MONDAY THROUGH FRIDAY, IF A CONFERENCE IS STILL
DESIRED.
B-139787, JUL. 24, 1959
TO ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 29, 1959, FILE
7298-BJ-D 69496, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT DATED
APRIL 17, 1959, WHICH DISALLOWED YOUR CLAIM FOR $113.85, PER YOUR BILL
NO. D-69496-B, ADDITIONAL FREIGHT IN CONNECTION WITH THE TRANSPORTATION
OF A QUANTITY OF SMALL ARMS AND ROCKET AMMUNITION FROM PROVING GROUND,
ILLINOIS, TO FORT LEONARD WOOD, MISSOURI, UNDER GOVERNMENT BILL OF
LADING NO. WY-5927067, DATED SEPTEMBER 16, 1955.
THE SHIPMENT CONSISTED OF 97,734 POUNDS OF SMALL ARMS AMMUNITION, AND
3,978 POUNDS OF ROCKET AMMUNITION WITH EXPLOSIVE PROJECTILES, FOR WHICH
YOU BILLED THE GOVERNMENT AND WERE PAID $1,363.53. IN OUR SUBSEQUENT
AUDIT OF YOUR BILLING, WE APPLIED THE CLASS 45 RATE OF $1.05 PER HUNDRED
POUNDS, PLUS 15 PERCENT, ON 97,734 POUNDS OF SMALL ARMS AMMUNITION, AND
THE CLASS 65 RATE OF $1.52 PER HUNDRED POUNDS, PLUS 15 PERCENT, ON THE
3,978 POUNDS OF ROCKET AMMUNITION, AS AUTHORIZED IN ASSOCIATION OF
AMERICAN RAILROADS SECTION 22 QUOTATION NO. 14-A. WE DETERMINED THAT
YOU PROPERLY WERE ENTITLED TO PAYMENT ON THIS SHIPMENT OF $1,249.68, AND
THAT YOU HAD BEEN OVERPAID $113.85. THE LATTER AMOUNT WAS COLLECTED BY
SET-OFF, AS AUTHORIZED IN 49 U.S.C. 66. CONCURRENT WITH THE
DISALLOWANCE OF YOUR CLAIM FOR $113.85 ADDITIONAL FREIGHT CHARGES, IT
WAS DETERMINED THAT BY VIRTUE OF THE APPLICATION OF THE SO-CALLED
MODIFIED RULE 10 PROVISION IN THE APPLICABLE FREIGHT TARIFF, YOU HAD
BEEN OVERPAID AN ADDITIONAL $325.94 ON THIS SHIPMENT, NOTICE OF WHICH
WAS FURNISHED YOU ON OUR FORM NO. 1003, DATED APRIL 14, 1959. WE
INFORMED YOU THAT THIS SO-CALLED MODIFIED RULE 10 WAS AUTHORIZED
PURSUANT TO ITEM 6 OF QUOTATION NO. 14.
IN YOUR LETTER OF MAY 29, 1959, YOU PROTESTED OUR ACTION AS
AFORESAID, ALLEGING THAT THE TERM ,OTHER PRIVILEGES," AS USED IN ITEM 6
OF SECTION 22 QUOTATION NO. 14-A, CONCERNS ONLY SUCH PRIVILEGES AS BACK
HAUL OR STORAGE AND WAS NOT DESIGNED TO BE "SUBSTITUTION FOR A RATE
FEATURE.' FURTHERMORE, YOU CONTEND THAT RULE 10 HAS NO APPLICATION TO AN
"LCL PORTION" OF A SHIPMENT.
ITEM 6 OF SECTION 22 QUOTATION NO. 14-A, AS AMENDED, APPLICABLE TO
SHIPMENTS OF EXPLOSIVES, AND SUBJECT TO A MINIMUM CARLOAD WEIGHT OF
50,000 POUNDS, READS AS FOLLOWS:
"IN THE ABSENCE OF SPECIFIC PROVISIONS TO THE CONTRARY IN THIS
QUOTATION, SHIPMENTS MADE HEREUNDER ARE SUBJECT TO ALL CHARGES AND ALL
ALLOWANCES FOR OR IN RESPECT OF DIVERSION, RECONSIGNMENT, DEMURRAGE,
SWITCHING, AND TO ALL OTHER PRIVILEGES, CHARGES AND RULES WHICH IN ANY
WAY INCREASE OR DECREASE THE AMOUNT TO BE PAID ON ANY SHIPMENT OR WHICH
INCREASE OR DECREASE THE VALUE OF THE SERVICE AS PROVIDED IN APPLICABLE
TARIFFS ON FILE WITH THE INTERSTATE COMMERCE COMMISSION, OR BY SECTION
22 QUOTATIONS, WITHOUT, IN ANY CASE, ANY LAND-GRANT DEDUCTION.'
THUS, ITEM 6 ABOVE EXPRESSLY PROVIDES THAT, IN THE ABSENCE OF
SPECIFIC PROVISIONS TO THE CONTRARY, SHIPMENTS MADE UNDER QUOTATION NO.
14-A ARE SUBJECT TO ALL PRIVILEGES, CHARGES AND RULES WHICH IN ANY WAY
INCREASE OR DECREASE THE AMOUNT TO BE PAID ON A SHIPMENT, AS PROVIDED IN
TARIFFS ON FILE WITH THE INTERSTATE COMMERCE COMMISSION.
PART 1 OF ITEM NO. 280-C, SUPPLEMENT 23 TO WESTERN TRUNK LINES'
TARIFF W-25-J, READS:
"PART 1.--- EXCEPT AS OTHERWISE PROVIDED IN THIS ITEM, WHEN A NUMBER
OF ARTICLES FOR WHICH THE SAME OR DIFFERENT RATINGS OR RATES ARE
PROVIDED WHEN IN STRAIGHT CARLOADS ARE SHIPPED AT ONE TIME BY ONE
CONSIGNOR TO ONE CONSIGNEE AND DESTINATION, IN A CARLOAD (SEE RULE 14 OF
WESTERN CLASSIFICATION), THEY WILL BE CHARGED AT THE ACTUAL OR
AUTHORIZED ESTIMATED WEIGHT AND AT THE STRAIGHT CARLOAD CLASS OR
COMMODITY RATE (NOT MIXED CARLOAD RATE) APPLICABLE TO EACH ARTICLE,
EXCEPT AS PROVIDED IN RULES 12 AND 45 OF WESTERN CLASSIFICATION. THE
CARLOAD MINIMUM WEIGHT WILL BE THE HIGHEST PROVIDED FOR ANY ARTICLE IN
THE MIXED CARLOAD, AND ANY DEFICIT IN THE MINIMUM WEIGHT WILL BE CHARGED
FOR AT THE HIGHEST CARLOAD RATING OR RATE APPLICABLE TO ANY ARTICLE IN
THE MIXED CARLOAD.'
THE ABOVE TARIFF ITEM NO. 280-C PROVIDES A BASIS FOR THE COMPUTATION
OF TRANSPORTATION CHARGES ON A MIXED CARLOAD SHIPMENT AND PLAINLY GRANTS
A PRIVILEGE, OR AUTHORIZES APPLICATION OF A RULE, WHICH DECREASES THE
AMOUNT WHICH OTHERWISE WOULD BE PAYABLE ON THIS SHIPMENT AND, THEREFORE,
CONSTITUTES ONE OF THE PRIVILEGES OR RULES CONTEMPLATED BY ITEM 6 OF
SECTION 22 QUOTATION NO. 14-A. SINCE NO SPECIFIC PROVISION TO THE
CONTRARY HAS BEEN FOUND IN THE QUOTATION REFERRED TO, IT SEEMS CLEAR
THAT USE AND APPLICATION OF THE MIXED CARLOAD RULE IS FULLY JUSTIFIED IN
THIS INSTANCE.
ACCORDINGLY, OUR PRIOR SETTLEMENT ACTION ON YOUR SUPPLEMENTAL BILL IS
SUSTAINED.
B-139852, JUL. 24, 1959
TO MR. ALFRED G. STELLATO:
YOUR LETTER OF JUNE 8, 1959, WITH ENCLOSURES, REQUESTS
RECONSIDERATION OF OUR SETTLEMENT OF JANUARY 30, 1958, WHICH DISALLOWED
YOUR CLAIM FOR $83.68 ADMINISTRATIVELY DEDUCTED ON BUREAU VOUCHER NO.
20, DATED JULY 1, 1957, COVERING TRAVEL AND TEMPORARY DUTY EXPENSES
UNDER TRAVEL ORDER NO. R3-143, DATED MAY 28, 1957.
THE RECORD SHOWS THAT YOU WERE AUTHORIZED TO TRAVEL FROM WASHINGTON,
D.C., TO BALTIMORE, MARYLAND, TO PERFORM TEMPORARY DUTY OF 60 DAYS. THE
TRAVEL ORDER AUTHORIZED $12 PER DIEM IN LIEU OF SUBSISTENCE, BUT
CONTAINS NO SPECIFIC PROVISION CONCERNING RETURN TO HEADQUARTERS ON
WEEK-ENDS. YOU REMAINED AWAY FROM WASHINGTON, D.C., OVER THE WEEK-ENDS
OF JUNE 8, 15, 22, AND 29, 1957, ALTHOUGH MILEAGE FOR FOUR ROUND TRIPS
BETWEEN YOUR HOME IN WASHINGTON, AND YOUR TEMPORARY DUTY STATION IN
BALTIMORE, WOULD HAVE BEEN MUCH LESS THAN PER DIEM ALLOWANCE CLAIMED FOR
THE NONWORK DAYS AWAY FROM WASHINGTON. BY ADMINISTRATIVE AUDIT
STATEMENT DATED JULY 3, 1957, OF THE $108 CLAIMED BY YOU FOR PER DIEM
DURING THE WEEK-ENDS IN QUESTION, YOU WERE ALLOWED $24.32 REPRESENTING
FOUR ROUND TRIPS FROM BALTIMORE TO WASHINGTON, D.C., 304 MILES AT ?08
PER MILE. YOUR CLAIM WAS DISALLOWED BY OUR OFFICE ON THE BASIS OF
SECTION 1.1 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS WHICH
PROVIDES THAT EMPLOYEES ARE EXPECTED TO EXERCISE THE SAME CARE IN
INCURRING EXPENSES THAT A PRUDENT PERSON WOULD EXERCISE IF TRAVELING ON
PERSONAL BUSINESS.
IN YOUR LETTER OF DECEMBER 9, 1957, TO OUR OFFICE, SUBMITTING YOUR
ORIGINAL CLAIM YOU SAID IN PART AS FOLLOWS:
"IN ARRIVING AT A DECISION, I WISH THE FOLLOWING INFORMATION,
SUBSEQUENTLY GLEANED FROM THE STANDARDIZED GOVERNMENT TRAVEL
REGULATIONS, BE TAKEN INTO CONSIDERATION:
"/1) SECTION 3, PARAGRAPH 3.8 (A), P.4, MAY, 1957
AT THE DISCRETION OF THE ADMINISTRATIVE OFFICIALS, A TRAVELER MAY BE
REQUIRED TO RETURN TO HIS OFFICIAL STATION FOR NONWORK DAYS.
"/2) SECTION 3, PARAGRAPH 3.8 (G), P.5, MAY, 1957
AN EMPLOYEE IN A TRAVEL STATUS ON A PER DIEM BASIS, WHO IS NOT
REQUIRED TO PERFORM DUTY ON SUNDAYS AND HOLIDAYS IS ENTITLED TO HIS FULL
PER DIEM ALLOWANCE NOTWITHSTANDING THAT HE MAY BE ABSENT FROM HIS
TEMPORARY DUTY STATION ON SUCH DAYS FOR PERSONAL REASONS.
"/3) SECTION 3, PARAGRAPH 3.8 (I), P.5, MAY, 1957
IF AN EMPLOYEE ABSENTS HIMSELF FROM HIS TEMPORARY DUTY STATION AND
RETURNS TO HIS OFFICIAL HEADQUARTERS PURSUANT TO PROPER ORDERS, HIS PER
DIEM WOULD OF COURSE TERMINATE AS OF THE HOUR OF ARRIVAL AT HIS OFFICIAL
HEADQUARTERS.'
THE ABOVE QUOTATIONS WHICH WERE CONSIDERED WHEN OUR SETTLEMENT OF
JANUARY 30, 1958, WAS ISSUED APPARENTLY ARE FROM THE CIVIL SERVICE
HANDBOOK S-806, INSTRUCTIONS ON OFFICIAL TRAVEL AND TRANSPORTATION OF
HOUSEHOLD GOODS. THOSE SECTIONS DO NOT PURPORT TO AUTHORIZE AN EMPLOYEE
TO REMAIN AWAY FROM HIS HEADQUARTERS ON NONWORKDAYS AT GOVERNMENT
EXPENSE IN CONTRAVENTION OF SECTION 1.1 OF THE STANDARDIZED GOVERNMENT
TRAVEL REGULATIONS. FURTHERMORE, IN THE INTRODUCTION TO THE CIVIL
SERVICE HANDBOOK S-806, PARAGRAPH 4 STATES IN PART AS FOLLOWS:
"EACH TRAVELER, * * * SHOULD ACQUAINT HIMSELF THOROUGHLY WITH THE
TRAVEL REGULATIONS AS WELL AS THE ADMINISTRATIVE REGULATIONS OUTLINED IN
THIS HANDBOOK.'
ALSO, SECTION 3, PARAGRAPH 3.8A OF THE CIVIL SERVICE TRAVEL
REGULATIONS HAS BEEN AMENDED TO CLARIFY THE NECESSITY FOR THE RETURN OF
AN EMPLOYEE TO HIS HEADQUARTERS ON NONWORKDAYS WHEN THE TEMPORARY DUTY
STATION IS CLOSE BY HIS HEADQUARTERS AND PROVIDES AS FOLLOWS:
"WHEN THE TEMPORARY DUTY STATION OF AN EMPLOYEE IS SO NEAR TO THE
OFFICIAL STATION, OR THE PLACE OF ABODE FROM WHICH HE COMMUTES DAILY TO
HIS OFFICIAL STATION, THAT THE SAVINGS BY RETURNING THERETO OVER
WEEK-ENDS AND HOLIDAYS WOULD EXCEED THE COST OF TRAVEL, AND UNLESS
OFFICIAL DUTY REQUIRES HIS PRESENCE AT THE TEMPORARY STATION AT SUCH
TIMES, HE SHOULD RETURN TO THE OFFICIAL STATION. (SEE 27 C.G. 50).'
SECTION 1.1 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AS
ABOVE INDICATED, PROVIDES THAT EMPLOYEES ARE EXPECTED TO USE THE SAME
CARE IN INCURRING EXPENSES THAT A PRUDENT PERSON WOULD EXERCISE IF
TRAVELING ON PERSONAL BUSINESS. WHEN THE TEMPORARY DUTY POST OF AN
EMPLOYEE IS SO NEAR TO THE OFFICIAL STATION THAT SUBSTANTIAL EXPENSES
WOULD BE SAVED BY RETURNING THERETO OVER WEEK-ENDS, AS IN YOUR CASE, THE
PROVISIONS OF SAID SECTION, GENERALLY, WOULD REQUIRE A RETURN TO THE
OFFICIAL STATION. THE ADMINISTRATIVE REPORT IN YOUR CASE, IN PERTINENT
PART, READS AS FOLLOWS:
"* * * THE CASE WAS CAREFULLY REVIEWED IN THIS OFFICE AND IT WAS OUR
OPINION THAT MR. STELLATO DID NOT ACT AS A PRUDENT PERSON WHEN HE STAYED
IN BALTIMORE FOR THE TWO NON-WORK DAYS AND THREE NIGHTS OF EACH WEEKEND.
HE IS THE ONLY EMPLOYEE DETAILED TO BALTIMORE WHO DID NOT RETURN TO HIS
HOME ON FRIDAY NIGHT AND REMAIN THERE UNTIL MONDAY MORNING. FURTHER, IT
IS A WELL KNOWN FACT THAT MANY PEOPLE COMMUTE DAILY BETWEEN THE TWO
CITIES. IT WOULD NOT, THEREFORE, SEEM A PROPER EXPENDITURE OF
GOVERNMENT FUNDS TO PAY PER DIEM TO AN EMPLOYEE FOR TWO AND ONE-FOURTH
NON-WORK DAYS EACH WEEK-END MERELY BECAUSE HE PERSONALLY DESIRED TO
REMAIN IN BALTIMORE.'
THEREFORE, AND SINCE THERE IS NOTHING OF RECORD TO SHOW THAT YOUR
OFFICIAL DUTIES REQUIRED YOUR PRESENCE AT THE TEMPORARY DUTY POST OVER
THE WEEK-ENDS IN QUESTION YOUR ELECTION TO REMAIN THERE FOR THE
NONWORKDAYS MUST BE CONSIDERED TO HAVE BEEN FOR PERSONAL REASONS AND WE
HAVE NO ALTERNATIVE BUT TO SUSTAIN THE ACTION TAKEN IN OUR SETTLEMENT OF
JANUARY 30, 1958.
B-140045, JUL. 24, 1959
TO LIEUTENANT COLONEL A. R. RICKETTS, USAF:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 23, 1959, REQUESTING AN
ADVANCE DECISION AS TO WHETHER MAJOR JAMES W. ISBELL, AO 163 3301, IS
ENTITLED TO PAYMENT OF DISLOCATION ALLOWANCE ON A VOUCHER SUBMITTED TO
YOU FOR PAYMENT. IT IS TO BE NOTED THAT WHILE YOUR REQUEST FOR ADVANCE
DECISION APPEARS TO HAVE BEEN PROPERLY ADDRESSED IN ACCORDANCE WITH
PARAGRAPH 70204-B (1), AFM 173-10, IT WAS NOT TRANSMITTED THROUGH
COMMAND CHANNELS TO THE DIRECTOR OF FINANCE, UNITED STATES AIR FORCE,
DENVER, COLORADO, AS PRESCRIBED IN PARAGRAPH 70204-B (7).
THE RECORD INDICATES THAT AS A RESULT OF THE DEACTIVATION OF HIS
PERMANENT DUTY STATION AT MANHATTAN BEACH AIR FORCE STATION, BROOKLYN,
NEW YORK, MAJOR ISBELL WAS REASSIGNED, EFFECTIVE MAY 29, 1958, TO THE
FLOYD BENNETT NAVAL AIR STATION, BROOKLYN, NEW YORK, WITH HIS DETACHMENT
AS ITS COMMANDER. THE ORDERS INDICATED THAT A PERMANENT CHANGE OF
STATION WAS INVOLVED AND STATED THAT DISLOCATION ALLOWANCE WAS
AUTHORIZED. IT WAS STATED THAT MAJOR ISBELL'S DEPENDENTS WERE REQUIRED
TO VACATE GOVERNMENT QUARTERS AT MANHATTAN BEACH AIR FORCE STATION, AND
THEY OBTAINED CIVILIAN QUARTERS IN THE VICINITY OF FLOYD BENNETT NAVAL
AIR STATION. THE QUESTION PRESENTED IS WHETHER ENTITLEMENT TO
DISLOCATION ALLOWANCE EXISTS IN CONNECTION WITH A MEMBER'S TRANSFER FROM
ONE MILITARY INSTALLATION TO ANOTHER WITHIN THE CORPORATE LIMITS OF THE
SAME CITY, WHEN SUCH REASSIGNMENT IS DUE TO DEACTIVATION OF A MILITARY
BASE OR STATION, AND THE MEMBER IS REQUIRED TO VACATE GOVERNMENT
QUARTERS AT THE OLD INSTALLATION AND PROCURE CIVILIAN QUARTERS IN THE
VICINITY OF THE NEW INSTALLATION.
UNDER AUTHORITY OF SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF
1949, AS ADDED BY SECTION 2 (12) OF THE ACT OF MARCH 31, 1955, 69 STAT.
18, 21, 37 U.S.C. 253 (C), PARAGRAPH 9002, JOINT TRAVEL REGULATIONS, WAS
PROMULGATED. THAT PARAGRAPH, IN EFFECT AT THE TIME THE ORDERS WERE
ISSUED, PROVIDES FOR PAYMENT OF A DISLOCATION ALLOWANCE WHEN DEPENDENTS
RELOCATE THEIR HOUSEHOLD IN CONNECTION WITH A PERMANENT CHANGE OF
STATION. PARAGRAPH 9003-7 OF THOSE REGULATIONS PROVIDES THAT THE
ALLOWANCE WILL NOT BE PAYABLE IN CONNECTION WITH PERMANENT CHANGE OF
STATION TRAVEL PERFORMED FOR ANY PERMANENT CHANGE OF STATION BETWEEN
STATIONS LOCATED WITHIN THE CORPORATE LIMITS OF THE SAME CITY.
THE PRIMARY PURPOSE OF THE DISLOCATION ALLOWANCE IS TO COMPENSATE
SERVICE PERSONNEL WITH DEPENDENTS FOR EXPENSES INHERENT IN RELOCATING
THEIR HOUSEHOLD IN CONNECTION WITH A PERMANENT CHANGE OF STATION. A
RIGHT TO A DISLOCATION ALLOWANCE CANNOT ARISE UNDER THE STATUTE UNTIL A
,PERMANENT CHANGE OF STATION" HAS BEEN ORDERED. A PERMANENT STATION IS
DEFINED IN PARAGRAPH 1150-10 OF THE JOINT TRAVEL REGULATIONS AS THE POST
OF DUTY OR OFFICIAL STATION (INCLUDING THE HOME YARD OR HOME PORT OF A
VESSEL) TO WHICH A MEMBER IS ASSIGNED FOR DUTY OTHER THAN TEMPORARY
DUTY, THE LIMITS OF WHICH, IF IN A CITY OR TOWN, WILL BE THE CORPORATE
LIMITS OF SUCH CITY OR TOWN. IT FOLLOWS THAT NO PERMANENT CHANGE OF
STATION IS INVOLVED WHEN A MEMBER IS TRANSFERRED FROM ONE MILITARY
INSTALLATION TO ANOTHER WITHIN THE SAME CITY AND NO RIGHT TO DISLOCATION
ALLOWANCE WOULD ACCRUE IN ANY EVENT TO A MEMBER IN CONNECTION WITH SUCH
TRAVEL. 36 COMP. GEN. 13; ID. 824; B-127797, AUGUST 22, 1956.
SINCE NO PERMANENT CHANGE OF STATION WITHIN THE MEANING OF THE JOINT
TRAVEL REGULATIONS WAS INVOLVED IN MAJOR ISBELL'S CHANGE OF DUTY
ASSIGNMENT, THE FACT THAT THE DEACTIVATION OF THE BASE AT MANHATTAN
BEACH AIR FORCE STATION REQUIRED THE VACATING OF GOVERNMENT QUARTERS AT
THAT BASE AND THE RELOCATION OF HIS HOUSEHOLD, DID NOT GIVE RISE TO ANY
RIGHT TO A DISLOCATION ALLOWANCE UNDER HIS APPLICABLE STATUTE.
ACCORDINGLY, YOU ARE NOT AUTHORIZED TO PAY THE OFFICER'S CLAIM AND THE
VOUCHER WILL BE RETAINED HERE.
B-140088, JUL. 24, 1959
TO MR. CHARLES E. PORTER:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 15, 1959, REQUESTING REVIEW
OF CLAIMS DIVISION'S SETTLEMENT OF MAY 20, 1959, WHICH DISALLOWED YOUR
CLAIM FOR INCREASED RETIRED PAY UNDER THE PROVISIONS OF THE FOURTH
PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT.
368, INCIDENT TO YOUR SERVICE IN THE UNITED STATES NAVY, RETIRED, AS
CHIEF BOATSWAIN.
THE DISALLOWANCE STATED THAT THE ABOVE STATUTORY PROVISION IS NOT A
RETIREMENT STATUTE BUT RELATES SOLELY TO THE METHOD OF COMPUTING RETIRED
PAY OF CERTAIN "OFFICERS" AND YOUR RETIREMENT WAS PURSUANT TO STATUTES
APPLICABLE TO ENLISTED FLEET RESERVISTS. YOU STATE IN YOUR LETTER THAT
IT IS TRUE THAT YOU RETIRED AS AN ENLISTED MAN BUT A YEAR OR SO LATER
YOU WERE PLACED ON THE RETIRED LIST AS A PERMANENT CHIEF WARRANT OFFICER
RETROACTIVE TO DATE OF RETIREMENT AND THEREFORE, YOU BELIEVE YOU ARE
ENTITLED TO THE INCREASED RETIRED PAY HELD TO BE DUE RETIRED OFFICERS
WHO QUALIFIED UNDER THE RULING IN OUR DECISION OF SEPTEMBER 30, 1958,
B-137364.
IN THE CASE OF BERRY V. UNITED STATES, 123 C.CLS. NO. 530 AND
REYNOLDS V. UNITED STATES, 125 C.CLS. 108, IT WAS HELD THAT CONGRESS
INTENDED THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT
OF 1942 TO BE APPLICABLE ONLY TO OFFICERS OF THE REGULAR COMPONENTS OF
THE SERVICES MENTIONED IN THE TITLE OF THE ACT. YOU WERE RETIRED AS A
MEMBER OF THE FLEET RESERVE WHICH WAS EXPRESSLY INCLUDED IN SECTION 1 OF
THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, AS A COMPONENT OF THE
NAVAL RESERVE. FURTHERMORE, AS STATED IN THE DISALLOWANCE, YOU WERE
RETIRED AS AN ENLISTED MAN BUT PURSUANT TO SECTION 10 OF THE ACT OF JULY
24, 1941, AS AMENDED BY SECTION 8 OF THE 1946 ACT, 60 STAT. 26-28, YOU
BECAME ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS OF THE HIGHEST RANK
ATTAINED (CHIEF WARRANT OFFICER). IT HAS BEEN HELD THAT A FLEET
RESERVIST, RETIRED UNDER SIMILAR CIRCUMSTANCES WAS RETIRED IN THE
"OFFICE" OF AN ENLISTED MAN, AND, AS SUCH, IS NOT ELIGIBLE FOR THE
BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT
ACT. SEE 26 COMP. GEN. 5; 36 ID. 8. THE ACTION OF THE CLAIMS DIVISION
IS SUSTAINED.
B-139153, JUL. 23, 1959
TO THE SUPERIOR IRON AND METAL CO., INC. :
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 9, 1959, IN
WHICH YOU REQUEST REVIEW OF OUR SETTLEMENT DATED MARCH 4, 1959, WHICH
DISALLOWED YOUR CLAIM UNDER CONTRACT NO. AF 12/621/S-15, DATED JULY 29,
1958. YOU STATE THAT YOU DID NOT BASE YOUR CLAIM ON A SHORTAGE OF
WEIGHT, BUT INCLUDED THE WEIGHT TICKETS AS PROOF THAT YOU DID NOT
RECEIVE COMPLETE UNITS AND DID NOT RECEIVE THE MATERIAL YOU INSPECTED
AND BID ON. YOU ALLEGE THAT UNITS WERE MISSING BY COUNT AND WEIGHT.
UNDER THE CITED CONTRACT YOU AGREED TO PURCHASE FROM THE GOVERNMENT,
AT YOUR BID PRICE OF $101.18 EACH, SIX UNITS OF SURPLUS PROPERTY LISTED
AND DESCRIBED UNDER ITEM NO. 6 IN BID INVITATION NO. 12-617-S-58-3, AS
FOLLOWS:
"MAINTENANCE SHELTER, AIRCRAFT, J-LA ACQ. COST $1,476.07 EA. APPROX.
COMBINED WT. 67,849 LBS. CODE 49. USED.'
REGARDING YOUR ALLEGATION THAT IN THE MATERIAL RECEIVED BY YOU UNDER
THE CONTRACT "UNITS WERE MISSING BY COUNT AND BY WEIGHT" FROM THE
MATERIAL INSPECTED BY YOU PRIOR TO SUBMITTING YOUR BID, WHILE YOU HAVE
SUBMITTED COPIES OF FORT WAYNE CITY SCALES WEIGHT TICKETS PURPORTEDLY
SHOWING THAT YOU RECEIVED ONLY 14,390 POUNDS WHEN THE APPROXIMATE WEIGHT
OF THE MATERIAL WAS GIVEN IN THE BID INVITATION AS APPROXIMATELY 67,840
POUNDS, THIS DOES NOT IN AND OF ITSELF SHOW A SHORTAGE IN THE NUMBER OF
UNITS ACTUALLY DELIVERED TO AND RECEIVED BY YOU. FURTHERMORE, AS WAS
STATED IN OUR CERTIFICATE OF SETTLEMENT, THE MAINTENANCE SHELTERS UNDER
ITEM NO. 6 WERE OFFERED FOR SALE ON A PER EACH BASIS, AND BY ARTICLE 2
OF THE GENERAL SALE TERMS AND CONDITIONS OF THE BID INVITATION--- WHICH
BECAME A MATERIAL PART OF THE CONTRACT--- PROSPECTIVE BIDDERS WERE PUT
ON NOTICE THAT THE PROPERTY WAS BEING SOLD "AS IS" AND "WHERE IS," AND
WITHOUT RECOURSE AGAINST THE GOVERNMENT. THAT ARTICLE ALSO PROVIDED
THAT THE DESCRIPTION OF THE PROPERTY WAS BASED UPON THE BEST AVAILABLE
INFORMATION, BUT THE GOVERNMENT MADE NO GUARANTY, WARRANTY, OR
REPRESENTATION WHATSOEVER AS TO THE QUANTITY, KIND, CHARACTER, QUALITY,
WEIGHT, SIZE, OR DESCRIPTION OF THE PROPERTY, AND THAT NO CLAIM WOULD BE
CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE
BASED UPON THE
FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED.
THE DEPARTMENT OF THE AIR FORCE REPORTS THAT THE REDISTRIBUTION AND
MARKETING ACTIVITY OFFICER AT BUNKER HILL AIR FORCE BASE, INDIANA,
STATES THAT THE RECORDS OF THE ACTIVITY DO NOT REFLECT ANY DIFFERENCE
BETWEEN THE NUMBER OF UNITS SPECIFIED IN THE BID INVITATION AND THE
NUMBER DELIVERED TO YOU. THUS, THE QUESTION IN THE INSTANT CASE
RESOLVES ITSELF INTO A DISPUTED QUESTION OF FACT AS TO THE NUMBER OF
UNITS DELIVERED TO YOU.
IT IS THE ESTABLISHED RULE OF OUR OFFICE, WHEN THERE IS A COMPLETE
DISAGREEMENT, AS HERE, BETWEEN THE FACTS AS REPORTED BY THE
ADMINISTRATIVE OFFICE AND THOSE STATED BY THE CLAIMANT, TO ACCEPT THE
FACTS ADMINISTRATIVELY REPORTED AS CONTROLLING THE DISPOSITION OF THE
CLAIM IN THE ABSENCE OF EVIDENCE LEGALLY SUFFICIENT TO OVERCOME THE
PRESUMPTION OF THEIR CORRECTNESS. SEE 16 COMP. GEN. 325; 18 ID. 799,
800. CONSEQUENTLY, SINCE NO SUCH EVIDENCE HAS BEEN PRESENTED, WE HAVE
NO ALTERNATIVE BUT TO ACCEPT THE STATEMENT OF THE DISPOSAL AGENCY AS
TO THE NUMBER OF UNITS DELIVERED TO YOU UNDER THE CONTRACT.
IN THE CIRCUMSTANCES, WE FIND NO LEGAL BASIS FOR AUTHORIZING ANY
ADJUSTMENT IN THE PRICE ON CONTRACT NO. AF 12/621/S-15. ACCORDINGLY,
THE SETTLEMENT OF MARCH 4, 1959, IS SUSTAINED.
B-139232, JUL. 23, 1959
TO THE MAINE CENTRAL RAILROAD COMPANY:
REFERENCE IS MADE TO YOUR LETTERS OF MARCH 27 AND JUNE 15, 1959,
AR-10 AND AR-11, RESPECTIVELY, IN EFFECT REQUESTING REVIEW OF OUR
SETTLEMENT DATED DECEMBER 18, 1958, WHICH DISALLOWED YOUR CLAIM FOR
$327.53 ADDITIONAL FREIGHT, PER YOUR BILLS NOS. A-451-A 2/58 AND A-451-B
10/56 SUPP. 3/59, IN CONNECTION WITH THE TRANSPORTATION OF MISCELLANEOUS
ITEMS OF SUPPLY FROM FORT CAMPBELL, EDGOTEN, KENTUCKY, TO DOW AIR FORCE
BASE, BANGOR, MAINE, UNDER GOVERNMENT BILLS OF LADING NOS. WY-6194431,
WY-6194461, WY-6194425, WY-6194463 AND WY-6194462, EACH OF WHICH WAS
RECEIPTED BY THE INITIAL CARRIER'S AGENT ON AUGUST 28, 1956.
OUR RECORDS SHOW THAT EACH OF THE BILLS OF LADING CITED, EXCEPT FOR
WY-6194425, DATED AUGUST 23, 1956, WAS ISSUED BY THE TRANSPORTATION
OFFICER AT FORT CAMPBELL, KENTUCKY, ON AUGUST 27, 1956, AND THAT ALL OF
THEM WERE PRESENTED TO THE INITIAL CARRIER FOR EXECUTION AT THE SAME
TIME, AUGUST 28, 1956. THE RECORD SHOWS FURTHER THAT ALL OF THE
TRANSPORTED MATERIALS WERE LOADED IN CAR DL AND W 36629 BY THE SHIPPER
ON AUGUST 28, 1956, AND THAT THE ENTIRE SHIPMENT WAS CONSIGNED TO THE
ONE CONSIGNEE, DOW AIR FORCE BASE, BANGOR, MAINE. THUS, THE SHIPMENT
MOVED, WITHOUT BREAKING BULK, FROM ORIGIN TO DESTINATION, WHERE THE
MATERIALS WERE UNLOADED BY THE CONSIGNEE.
YOUR ORIGINAL BILLING ON THIS SHIPMENT (A-451-10/56) WAS IN THE
AMOUNT OF $1,099.98, CORRECTLY COMPUTED UPON THE BASIS OF THE CARLOAD
RATINGS AND MIXED CARLOAD MINIMUM WEIGHT ON A PORTION OF THE SHIPMENT AS
PROVIDED UNDER RULE 10 OF THE UNIFORM FREIGHT CLASSIFICATION NO. 3, PLUS
CERTAIN LESS-THAN-CARLOAD RATINGS AS APPLIED TO ACTUAL WEIGHTS ON THE
REMAINDER. IN NOVEMBER 1956, YOU WERE PAID $1,099.98 UPON THE BASIS OF
YOUR ORIGINAL BILLING.
BY YOUR BILL NO. A-451-A 2/58, YOU CLAIMED $327.53 ADDITIONAL FREIGHT
BASED UPON COMPUTATIONS SET FORTH IN AN ACCOMPANYING STATEMENT, SHOWING
A TOTAL TRANSPORTATION CHARGE FOR THIS SHIPMENT OF $1,427.51, IN LIEU OF
THE SUM OF $1,099.98 ORIGINALLY CLAIMED AND PAID. YOUR SUPPLEMENTAL
CLAIM FOR PAYMENT UPON THE BASIS OF LESS-THAN-CARLOAD RATES IS BASED
ESSENTIALLY UPON THE PREMISE THAT SINCE FIVE SEPARATE BILLS OF LADING
WERE INVOLVED, THE PRESENT MOVEMENT DID NOT CONSTITUTE A REGULAR CARLOAD
SHIPMENT AS TO WHICH THE CARLOAD RATES ON THE TRANSPORTED COMMODITIES
WOULD APPLY.
AS YOU WERE ADVISED IN OUR SETTLEMENT OF DECEMBER 18, 1958, RULE 14,
SECTION 1 OF THE UNIFORM FREIGHT CLASSIFICATION EXPRESSLY PROVIDES THAT
"ONLY ONE BILL OF LADING FROM ONE LOADING POINT AND ONE FREIGHT BILL (AS
HERE) SHALL BE ISSUED FOR SUCH CL SHIPMENT.' IN ADDITION THERETO, THE
INTERSTATE COMMERCE COMMISSION, AND THE COURTS AS WELL, HAVE RECOGNIZED
THAT THE RESPONSIBILITY OF PREPARING AND ISSUING PROPERLY EXECUTED BILLS
OF LADING RESTS PRIMARILY UPON THE CARRIER, AND NOT THE SHIPPER. NOT
ONLY DOES THE RECORD HERE ESTABLISH THAT THE MATERIALS INVOLVED WERE
SHIPPED FROM ONE STATION, IN ONE CAR, AND IN ONE CALENDAR DAY, TO ONE
DESTINATION, BUT, ALSO, THAT THE FIVE BILLS OF LADING WERE PRESENTED TO
THE CARRIER FOR EXECUTION AT THE SAME TIME. IN A SOMEWHAT PARALLEL
SITUATION CONSIDERED IN THE CASE OF EXPOSITION COTTON MILLS V. SOUTHERN
RAILWAY COMPANY, 234 I.C.C. 441, AT PAGE 442, THE COMMISSION SAID:
"ALL THE FACTS AND CIRCUMSTANCES ATTENDING THE MAKING OF THESE
SHIPMENTS AND THE BILLS OF LADING ON THEIR FACE CONCLUSIVELY SHOW THAT
THEY WERE CARLOAD SHIPMENTS. THE QUESTION PRESENTED HERE IS WHETHER THE
FACT THAT MORE THAN ONE BILL OF LADING WAS ISSUED PREVENTS THE
APPLICATION OF THE CARLOAD RATE. IF IT DOES, UNDER RULE 14 THE ISSUANCE
OF MORE THAN ONE FREIGHT BILL WOULD ALSO HAVE THAT EFFECT. IT IS
SIGNIFICANT THAT THE FIRST SENTENCE OF RULE 14 PROVIDES THAT CARLOAD
RATES APPLY ONLY WHEN THE CONDITIONS THERE STATED ARE COMPLIED WITH, BUT
THAT NO SUCH PROHIBITION IS CONTAINED IN THE SECOND SENTENCE, WHICH IS
THE ONLY ONE WITH WHICH WE ARE HERE CONCERNED. THAT SENTENCE SAYS THAT
ONLY ONE BILL OF LADING AND FREIGHT BILL "SHALL" BE ISSUED. CARRIERS
ONLY CAN ISSUE FREIGHT BILLS, AND THE CARMACK AMENDMENT SPECIFICALLY
REQUIRES THAT THEY ISSUE THROUGH BILLS OF LADING. THE DUTY OF ISSUING
APPROPRIATE BILLS OF LADING RESTS ON THE CARRIERS, AND IT IS THEY WHO
ARE PROHIBITED FROM ISSUING MORE THAN ONE BILL OF LADING ON A CARLOAD
SHIPMENT BY RULE 14. * * *"
SEE ALSO, WILLINGHAM V. SELIGMAN, 179 F.2D 257.
IN THE CIRCUMSTANCES HERE PREVAILING, IT SEEMS CLEAR THAT CARLOAD
SERVICE WAS IN FACT PERFORMED ON THIS SHIPMENT, AND THE MANNER OF
BILLING, THEREFORE, MAY NOT BE USED TO WITHHOLD FROM THE SHIPPER THE
RATE PUBLISHED FOR THE SERVICE RECEIVED BY HIM. SOUTHGATE BROKERAGE
CO., INC. V. LEHIGH VALLEY RAILWAY COMPANY, 274 I.C.C. 245, 247.
YOUR CONTENTION THAT THESE SHIPMENTS WERE TENDERED UNROUTED IS NOT
UNDERSTOOD IN VIEW OF THE FACT THAT EACH BILL OF LADING BORE THE
NOTATION "TC AND CHEAPEST CONN. PKG CAR IF AVAIL., " OR ITS EQUIVALENT.
OTHERWISE, YOUR REFERENCE TO A QUOTATION FROM THE "TRAFFIC WORLD," AND
THE CASES CITED BY YOU IN SUPPORT OF YOUR POSITION, ARE NOT DEEMED
APPLICABLE TO THE FACTS IN THE INSTANT CASE.
B-139576, JUL. 23, 1959
TO THE ARROW OIL COMPANY:
REFERENCE IS MADE TO YOUR LETTER OF MAY 8, 1959, PROTESTING THE
REJECTION OF YOUR BID ON INVITATION NO. IFB 59-111 ISSUED BY THE
MILITARY PETROLEUM SUPPLY AGENCY ON JANUARY 22, 1959, FOR THE FURNISHING
OF PETROLEUM PRODUCTS TO VARIOUS INSTALLATIONS DURING THE PERIOD FROM
MAY 1, 1959, THROUGH OCTOBER 31, 1959.
UNDER THE INVITATION, BIDS WERE REQUESTED--- TO BE OPENED FEBRUARY
24, 1959--- FOR FURNISHING VARIOUS ITEMS OF PETROLEUM PRODUCTS, AND
QUOTATIONS COULD BE SUBMITTED EITHER ON A FIRM BASIS FOR THE CONTRACT
PERIOD OR AN ESCALATED BASIS. BIDDERS WHO DESIRED TO SUBMIT PRICES
SUBJECT TO ESCALATION WERE TO COMPLETE SECTION I OF THE SCHEDULE IN
WHICH POSTED OR PUBLISHED PRICES, EXCLUSIVE OF ALL TAXES, WERE TO BE
SHOWN. SECTION II OF THE SCHEDULE LISTED THE SUPPLIES REQUIRED AND THE
PRICES OFFERED FOR SUCH SUPPLIES WERE TO BE INSERTED OPPOSITE THE
APPLICABLE ITEMS. THE PRICES SO OFFERED WERE TO BE CONSIDERED THE BASE
PRICES. UPON THE OPENING OF BIDS, THE CONTRACTING OFFICER NOTED THAT
THE PRICES BID BY YOU WERE OUT OF LINE WITH THE OTHER BIDS RECEIVED AND
REQUESTED YOU TO CONFIRM WHETHER YOUR UNIT PRICES INCLUDED THE FEDERAL
EXCISE TAX OF $0.03 PER GALLON. YOU REPLIED THAT YOUR PRICES DID NOT
INCLUDE STATE OR FEDERAL TAXES. YOU WERE REQUESTED TO FURNISH WORK
PAPERS AND EVIDENCE TO SUPPORT THE ALLEGED OMISSION OF FEDERAL TAX FROM
YOUR PRICES. YOU PREPARED A STATEMENT SETTING FORTH YOUR INDICATED
COSTS OF GASOLINE WHICH YOU SUBMITTED IN SUPPORT OF THE ERROR. YOU DID
NOT FURNISH ANY WORKSHEETS OR OTHER EVIDENCE WHICH WOULD CLEARLY
ESTABLISH THE AMOUNTS INTENDED TO BE BID FOR EACH ITEM NOR WAS THE
INTENDED BID ASCERTAINABLE BY REFERENCE TO THE INVITATION AND BID ALONE.
IN MAKING AWARD YOUR BID ON THE VARIOUS ITEMS WAS DISREGARDED.
REFERENCE TO PARAGRAPH 20 OF THE GENERAL PROVISIONS FOR PETROLEUM
PRODUCTS MADE A PART OF THE CONTRACT INDICATES THAT EXCEPT AS MIGHT BE
OTHERWISE PROVIDED IN THE CONTRACT, THE CONTRACT PRICE INCLUDED ALL
FEDERAL, STATE AND LOCAL TAXES APPLICABLE TO THE CONTRACT ON THE TAX
INCLUSIVE DATE.
PARAGRAPH 21 OF THE SAME PROVISIONS ALSO PROVIDED THAT UNLESS
OTHERWISE INDICATED IN THE SCHEDULE, ALL CONTRACT PRICES FOR MOTOR FUEL,
ETC., INCLUDED THE FEDERAL EXCISE TAX OF $0.03 PER GALLON. THE PRICES
SET OUT IN SECTION II OF THE SCHEDULE IN WHICH NO REFERENCE TO TAXES WAS
MADE, WERE THEREFORE TO BE CONSIDERED AS TAX INCLUSIVE.
IT HAS BEEN HELD BY OUR OFFICE IN 36 COMP. GEN. 441 THAT WHERE A
BIDDER FURNISHES EVIDENCE BEFORE AWARD WHICH REASONABLY ESTABLISHES THAT
HE HAS OMITTED A MATERIAL ITEM OF COST FROM THE BID PRICE, THE
GOVERNMENT IS JUSTIFIED IN DISREGARDING THE BID IN MAKING AWARD. ALSO,
IT HAS BEEN HELD IN 31 COMP. GEN. 183, THAT IN ORDER TO AUTHORIZE A
RECALCULATION OF A BID AND TO PERMIT ITS CORRECTION, THERE MUST BE
FURTHER AND CONCLUSIVE PROOF OF THE AMOUNT OF THE INTENDED BID. THE
ADMINISTRATIVE OFFICE HAS CONCLUDED IN THIS CASE THAT THERE HAS NOT BEEN
SUBMITTED ANY CONCLUSIVE PROOF OF THE AMOUNT OF THE INTENDED BID ON EACH
ITEM AND DID NOT PERMIT CORRECTION. THERE HAS NOT BEEN FURNISHED ANY
EVIDENCE TO WARRANT OUR OFFICE IN DISAGREEING WITH THE ACTION TAKEN BY
THE ADMINISTRATIVE OFFICE IN THIS CASE AND WE FIND NO BASIS FOR HOLDING
THAT YOUR BID SHOULD HAVE BEEN CONSIDERED IN MAKING AWARD.
B-139672, JUL. 23, 1959
TO MR. LOU W. HATCH, AUTHORIZED CERTIFYING OFFICER, BUREAU OF LAND
MANAGEMENT, DEPARTMENT OF THE INTERIOR:
REFERENCE IS MADE TO YOUR LETTER OF MAY 14, 1959, WITH ENCLOSURES,
FORWARDING THE CLAIM OF THE SWANSON BROS. LUMBER CO., INC., IN THE
AMOUNT OF $204.75, REPRESENTING THE VALUE OF A DOUGLAS-FIR TREE WHICH
WAS REMOVED BY THE SPRINGFIELD LUMBER MILLS FROM THE CUTTING AREA
DESCRIBED IN TIMBER SALES CONTRACT NO. 14-11-001/9/-92 FOR SWANSON. A
VOUCHER COVERING THE PAYMENT OF THE CLAIM WAS NOT ENCLOSED WITH YOUR
LETTER. AS A CERTIFYING OFFICER, YOU ARE NOT ENTITLED TO A DECISION
EXCEPT AS TO A QUESTION OF LAW INVOLVED IN THE PAYMENT OF A VOUCHER
PRESENTED TO YOU FOR CERTIFICATION. SEE 35 COMP. GEN. 28. HOWEVER, THE
VOUCHER REQUIREMENT IN THIS INSTANCE WILL BE WAIVED WITH THE
UNDERSTANDING THAT VOUCHERS WILL BE SUBMITTED IN THE FUTURE WITH
REQUESTS FOR DECISIONS.
UNDER THE CONTRACT DATED MARCH 15, 1956, SWANSON PURCHASED 1,587M
BOARD FEET OF DOUGLAS-FIR FOR $108,312.75, TO BE CUT BY IT FROM THE
CONTRACT CUTTING AREA. HOWEVER, SOMETIME IN JULY 1956, SPRINGFIELD CUT
AND REMOVED A BLOWN-DOWN TREE FROM THE CONTRACT AREA. THEREAFTER, IN
MARCH 1958, THE BUREAU MADE DEMAND UPON SPRINGFIELD FOR DAMAGES ARISING
OUT OF THE TRESPASS IN ACCORDANCE WITH SECTION 105.810 OF THE OREGON
REVISED STATUTES, PROVIDING FOR TREBLE DAMAGES IN THE CASE OF WILFUL
TRESPASS. THEREUPON, SPRINGFIELD TENDERED, AND THE BUREAU ACCEPTED, THE
SUM OF $195 AS DOUBLE DAMAGES FOR THE TRESPASS AS AUTHORIZED BY SECTION
105.815 OF THE OREGON REVISED STATUTES WHERE THE TRESPASS IS CASUAL OR
INVOLUNTARY. THE DAMAGES WERE COMPUTED BY DOUBLING THE APPRAISED
(MARKET VALUE) STUMPAGE RATE OF $32.50 AND MULTIPLYING IT BY THE VOLUME
(3 THOUSAND BOARD FEET) REMOVED IN TRESPASS. ON THE OTHER HAND, SWANSON
IS CLAIMING THE VALUE OF SUCH STUMPAGE AT THE CONTRACT ESTIMATED UNIT
PRICE OF $68.25 OR A TOTAL OF $204.75.
IT APPEARS THAT THE TRESPASS OCCURRED SUBSEQUENT TO THE EXECUTION OF
THE TIMBER SALES CONTRACT BUT PRIOR TO THE COMMENCEMENT OF LOGGING
OPERATIONS BY SWANSON. THE CONTRACT CLEARLY OBLIGATED THE GOVERNMENT TO
SELL, AND SWANSON TO BUY, ALL THE TIMBER IN THE CONTRACT DESIGNATED
AREA, EXCEPT THAT RESERVED TO THE UNITED STATES. HENCE, TO THE EXTENT
THAT A TREE WAS REMOVED BY TRESPASS FROM THE CONTRACT AREA, THERE WAS A
FAILURE OF CONSIDERATION ON ACCOUNT OF WHICH THE PURCHASER IS ENTITLED
TO RELIEF. SEE B-130656, FEBRUARY 19, 1957.
HOWEVER, WE DO NOT BELIEVE THAT THE RELIEF REQUESTED BY SWANSON
SHOULD BE MEASURED BY THE AMOUNT OF DAMAGES COLLECTED BY THE GOVERNMENT
FROM SPRINGFIELD. AN EXACT MEASURE OF DAMAGES IS AVAILABLE FROM THE
CONTRACT ITSELF, THAT IS, $68.25 PER THOUSAND BOARD FEET. THEREFORE,
AND SINCE PAYMENT BASED UPON SUCH CONTRACT RATE WILL EFFECTIVELY
COMPENSATE SWANSON FOR THE LOSS WHICH A FULFILLMENT OF THE CONTRACT BY
THE GOVERNMENT WOULD HAVE PREVENTED, THE CLAIM IN THE AMOUNT OF $204.75
MAY BE ALLOWED IF OTHERWISE CORRECT.
B-139896, JUL. 23, 1959
TO DEWITT T. YATES, ESQUIRE:
ON BEHALF OF YOUR CLIENT, UNITED STATES OVERSEAS AIRLINES, INC., YOU
PROTESTED THE AWARD TO TWENTIETH CENTURY AIRLINES MADE BY MATS PURSUANT
TO REQUEST FOR PROPOSALS MAMPC-25-E-1. IN YOUR LETTER OF JUNE 9, 1959,
YOU CONTENDED THAT TWENTIETH CENTURY AIRLINES, A "PART 45" CARRIER, DID
NOT QUALIFY FOR AWARD BECAUSE IT IS NOT A "CIVIL AIR CARRIER" WITHIN THE
MEANING OF SECTION 634 OF THE DEPARTMENT OF DEFENSE APPROPRIATIONS ACT
OF 1959, AND THAT THE AWARD IS IN DEROGATION OF THE CIVIL AERONAUTICS
BOARD'S "STATEMENT OF GENERAL POLICY ON RATES FOR MILITARY TRAFFIC DATED
10 MARCH 1959.'
THE REQUEST FOR PROPOSALS IN THE INSTANT CASE INVOLVED PASSENGER
AIRLIFT SERVICES IN THE PACIFIC AREA FOR THE MONTHS OF JULY, AUGUST, AND
SEPTEMBER 1959. TWENTY-EIGHT COMMERCIAL AIR CARRIERS HOLDING CURRENT
CALL TYPE BASIC AGREEMENTS FOR COMMERCIAL AIRLIFT SERVICES WERE
SOLICITED.
THE FIRST ISSUE RAISED IN YOUR PROTEST WAS THE SUBJECT OF OUR
DECISION OF MAY 29, 1959, B-139296. IN THAT DECISION WE CONCLUDED THAT
"PART 45" CARRIERS ARE NOT EXCLUDED FROM AWARDS OF MATS AIRLIFT
CONTRACTS MADE IN CONFORMANCE WITH SECTION 634 OF THE DEPARTMENT OF
DEFENSE APPROPRIATIONS ACT OF 1959. WE ARE ENCLOSING A COPY OF THAT
DECISION FOR YOUR CONVENIENCE.
IN REGARD TO YOUR SECOND CONTENTION, THE CIVIL AERONAUTICS BOARD HAS
FAILED TO ADOPT ITS POSITION AS EXPRESSED IN THE STATEMENT OF POLICY
DATED MARCH 10, 1959. ON JUNE 11, 1959, THE BOARD ISSUED A STATEMENT,
IDENTIFIED AS CAB 59-21, WHICH CONTAINS, AMONG OTHERS, THE FOLLOWING
PARAGRAPH:
"THE CAB HAS DETERMINED THAT IT WILL NOT ADOPT THE PROPOSED STATEMENT
OF GENERAL POLICY ON RATES FOR MILITARY TRAFFIC WHICH WAS MADE PUBLIC ON
MARCH 10, 1959, AS A PROPOSED AMENDMENT TO PART 399 OF THE BOARD'S
ECONOMIC REGULATIONS.'
UNDER THE CIRCUMSTANCES THERE IS NO LEGAL BASIS FOR US TO QUESTION
THE AWARD MADE TO TWENTIETH CENTURY AIRLINES.
B-139960, JUL. 23, 1959
TO MR. MARVIN W. BINGHAM, AUTHORIZED CERTIFYING OFFICER, DEPARTMENT
OF HEALTH, EDUCATION, AND WELFARE:
YOUR LETTER OF JUNE 12, 1959, REQUESTS OUR DECISION AS TO WHETHER YOU
PROPERLY MAY CERTIFY FOR PAYMENT THE SUPPLEMENTAL VOUCHER TRANSMITTED IN
FAVOR OF CHARLES G. HAYNES, FOR $4.40, REPRESENTING MILEAGE FOR THE USE
OF PRIVATELY OWNED AUTOMOBILE FROM HOME TO OFFICE AND RETURN, INCIDENT
TO TRAVEL ON OFFICIAL DUTY ON OCTOBER 13, 1958, AND APRIL 22, 1959.
THE RECORD INDICATES THAT ON OCTOBER 13, 1958, MR. HAYNES LEFT HIS
RESIDENCE BY PRIVATELY OWNED AUTOMOBILE WITH SUFFICIENT LUGGAGE FOR USE
IN TRAVELING ON OFFICIAL BUSINESS FOR A FIVE-WEEK PERIOD. HE WENT FROM
HIS HOME TO THE NATIONAL AIRPORT VIA THE OFFICE FOR THE PURPOSE OF
PICKING UP NECESSARY OFFICIAL DOCUMENTS AND PERFORMING ABOUT 2 1/2 HOURS
OF WORK IN PREPARATION FOR THE TRIP. HE LEFT THE OFFICE BY TAXICAB FOR
THE AIRPORT, PAYING A TAXICAB FARE OF $1.10, FOR WHICH MR. HAYNES HAS
BEEN REIMBURSED. THE SUPPLEMENTAL CLAIM FOR APRIL 22, 1959, IS SIMILAR
IN THAT THE EMPLOYEE WENT FROM HIS HOME TO THE AIRPORT VIA HIS OFFICE
FOR THE SAME PURPOSES, TAKING LUGGAGE SUFFICIENT FOR A TEN-DAY TRIP.
MR. HAYNES LEFT THE OFFICE FOR THE AIRPORT BY PRIVATELY OWNED AUTOMOBILE
FOR WHICH HE HAS BEEN REIMBURSED ON A MILEAGE BASIS.
YOU SUGGEST THAT THE EMPLOYEE MAY BE REIMBURSED FOR ROUND TRIP
MILEAGE FROM HIS HOME TO HIS OFFICE UNDER OUR HOLDING IN 36 COMP. GEN.
476. IN THAT DECISION WE HELD, QUOTING FROM THE SYLLABUS:
"AN EMPLOYEE WHO USED A TAXICAB FROM RESIDENCE TO OFFICE BECAUSE SHE
WAS REQUIRED TO TAKE A SUITCASE IN PREPARATION FOR A FIVE-DAY TRAVEL
STATUS TO BEGIN FROM THE OFFICE INCIDENT TO A CIVIL DEFENSE EXERCISE MAY
HAVE THE OFFICE CONSIDERED AS A TERMINAL SO AS TO BE ENTITLED TO
REIMBURSEMENT FOR THE TAXI FARE.'
THE ABOVE-CITED DECISION DEALT WITH REIMBURSEMENT FOR TAXICAB FARES
UNDER PARAGRAPH 8A (NOW SECTION 3.1B) OF THE STANDARDIZED GOVERNMENT
TRAVEL REGULATIONS, WHICH PROVIDES THAT THE USUAL TAXICAB FARES FROM
STATION, WHARF, OR OTHER TERMINAL TO EITHER PLACE OF ABODE OR PLACE OF
BUSINESS AND FROM EITHER PLACE OF ABODE OR PLACE OF BUSINESS TO STATION,
WHARF, OR OTHER TERMINAL WILL BE ALLOWED.
THE INSTANT CASE INVOLVES REIMBURSEMENT FOR THE USE OF PRIVATELY
OWNED AUTOMOBILE UNDER SECTION 3.5B (1) OF THE STANDARDIZED GOVERNMENT
TRAVEL REGULATIONS, WHICH PROVIDES IN PART, AS FOLLOWS:
"IN LIEU OF THE USE OF A TAXICAB UNDER THE PROVISIONS OF SECTION
3.1B, PAYMENT ON A MILEAGE BASIS AT THE RATE OF 10 CENTS PER MILE WILL
BE ALLOWED FOR THE ROUND-TRIP MILEAGE OF A PRIVATELY OWNED AUTOMOBILE
USED IN CONNECTION WITH AN EMPLOYEE GOING FROM HIS PLACE OF ABODE TO A
COMMON CARRIER TERMINAL OR FROM A COMMON CARRIER TERMINAL TO HIS PLACE
OF ABODE: PROVIDED, THAT THE AMOUNT OF REIMBURSEMENT SHALL NOT EXCEED
THE USUAL TAXICAB FARE, INCLUDING ALLOWABLE TIP, FOR A ONE-WAY TRIP FROM
HIS PLACE OF ABODE TO TERMINAL OR FROM TERMINAL TO HIS PLACE OF ABODE.'
WE HAVE REGARDED THE TERMS "OR OTHER TERMINAL" AND "COMMON CARRIER
TERMINAL" APPEARING IN SECTION 3.1B AND 3.5B (1) OF THE TRAVEL
REGULATIONS, AS COVERING TRAVEL TO ANY TERMINAL. SEE B-136626, AUGUST
4, 1958 (COPY ENCLOSED). SEE ALSO THE REVISED 3.1B AND 3.5B (1), BUREAU
OF THE BUDGET, CIRCULAR NO. A-7, REVISED, TRANSMITTAL MEMORANDUM NO. 10,
DATED JUNE 22, 1959 (EFFECTIVE AUGUST 1, 1959), TO THE SAME EFFECT.
IN OUR DECISION OF DECEMBER 31, 1956, B-129785 (36 COMP. GEN. 476),
CITED ABOVE, THE EMPLOYEE'S OFFICE WAS HELD TO BE A "TERMINAL" WITHIN
THE PURVIEW OF THE TERM AS USED IN PARAGRAPH 8A (NOW SECTION 3.1B) OF
THE TRAVEL REGULATIONS SINCE IT WAS THE POINT OF DEPARTURE ON TEMPORARY
DUTY TRAVEL BY PRIVATELY OWNED AUTOMOBILE.
IN THE SITUATION HERE PRESENTED, THE AIRPORT WAS THE POINT OF
DEPARTURE BY COMMON CARRIER. HOWEVER NECESSARY THE EMPLOYEE'S STOP OFF
AT HIS OFFICE MAY HAVE BEEN FOR PURPOSES OF THE TRIP, HIS OFFICE MAY NOT
BE CONSIDERED AS A "TERMINAL" WITHIN THE PURVIEW OF THE TERM "COMMON
CARRIER TERMINAL" AS USED IN SECTION 3.5B (1) OF THE STANDARDIZED
GOVERNMENT TRAVEL REGULATIONS. SEE B-138143, JANUARY 8, 1959 (COPY
ENCLOSED).
THEREFORE, THE VOUCHER, RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR
PAYMENT.
B-140029, JUL. 23, 1959
TO MR. CLEA HARWICK, AUTHORIZED CERTIFYING OFFICER, ACCOUNTING
DIVISION, FEDERAL AVIATION GENCY:
ON JUNE 24, 1959, THE CHIEF, AUDIT BRANCH, ACCOUNTING DIVISION,
FORWARDED HERE YOUR LETTER OF JUNE 19, 1959, REQUESTING OUR DECISION
UPON THE PROPRIETY OF CERTIFYING FOR PAYMENT TRANSMITTAL RECLAIM
VOUCHERS IN FAVOR OF JEROME E. LARDY AND RICHARD J. MOORE IN THE AMOUNT
OF $221 EACH, REPRESENTING PER DIEM WHILE ON DUTY AT COLD BAY, ALASKA,
FOR THE PERIOD FEBRUARY 12 THROUGH FEBRUARY 28, 1959.
THE RECORD SHOWS THAT TRAVEL ORDER NO. 559-4729, AUTHORIZED MR.
LARDY TO TRAVEL FROM FAIRBANKS, ALASKA, TO COLD BAY FOR A PERMANENT
CHANGE OF STATION WITH A LAYOVER OF TWO DAYS IN ANCHORAGE, ALASKA, FOR
FAMILIARIZATION AND LIAISON VISIT WITH THE REGIONAL OFFICE. HE ARRIVED
AT COLD BAY ON FEBRUARY 12, 1959. TRAVEL ORDER NO. 559-4738, AUTHORIZED
MR. MOORE TO TRAVEL FROM FAIRBANKS TO COLD BAY FOR A PERMANENT CHANGE
OF STATION. HE ARRIVED AT COLD BAY ON FEBRUARY 12, 1959. AT THE TIME
THE POSITIONS AT COLD BAY WERE ADVERTISED IT WAS ANNOUNCED THAT A
ONE-BEDROOM APARTMENT, SUITABLE FOR A BACHELOR OR MARRIED COUPLE, WOULD
BE FURNISHED. HOWEVER, BECAUSE OF A DELAY IN SHIPPING CONSTRUCTION
MATERIAL, THE APARTMENTS WERE NOT COMPLETED UNTIL MARCH 1, 1959. THE
TWO EMPLOYEES WERE ASSIGNED TRANSIENT QUARTERS WITHOUT COOKING
FACILITIES UPON THEIR ARRIVAL AT COLD BAY UNTIL SUCH TIME AS THE
APARTMENTS BECAME AVAILABLE. MEALS WERE OBTAINED FROM THE NORTHWEST
AIRLINES AT A COST OF $10 PER DAY. IT WAS NECESSARY FOR THE EMPLOYEES
ARRIVE AT THEIR NEW HEADQUARTERS PRIOR TO THE COMPLETION OF PERMANENT
QUARTERS IN ORDER TO ALLEVIATE A HAZARDOUS AIR TRAFFIC SITUATION IN THE
COLD BAY AREA.
THE ESTABLISHED RULE IS THAT THE EFFECTIVE DATE OF A CHANGE OF
HEADQUARTERS IS THE DATE THE EMPLOYEE ARRIVES AT THE NEW STATION. 28
COMP. GEN. 285; 29 ID. 100. THE TRAVEL EXPENSE ACT OF 1949, 5 U.S.C.
836, AUTHORIZES THE ALLOWANCE OF PER DIEM TO CIVILIAN EMPLOYEES ONLY
WHILE "AWAY FROM THEIR DESIGNATED POSTS OF DUTY.' FURTHERMORE, PARAGRAPH
6.8 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROHIBITS PAYMENT
OF PER DIEM IN LIEU OF SUBSISTENCE AT AN EMPLOYEE'S PERMANENT
DUTY STATION. THERE IS NO AUTHORITY FOR AN AGENT OR OFFICER OF THE
GOVERNMENT, INCLUDING OUR OFFICE, TO WAIVE ANY PROVISION OF A STATUTE OR
INCUR ANY OBLIGATION WHICH WOULD RESULT IN AN EXPENDITURE OF PUBLIC
FUNDS IN EXCESS OF THAT SPECIFICALLY PROVIDED BY THE STATUTE.
THEREFORE, THE VOUCHERS MAY NOT BE CERTIFIED FOR PAYMENT. THE
VOUCHERS AND RELATED PAPERS ARE RETURNED.
B-140075, JUL. 23, 1959
TO MAJOR MARSHALL E. HANSON, USAF:
YOUR LETTER OF JUNE 2, 1959, REQUESTS REVIEW OF OUR SETTLEMENT DATED
MAY 6, 1959, WHICH DISALLOWED YOUR CLAIM FOR $71.99 REPRESENTING THE
AMOUNT PAID BY YOU TO THE GOVERNMENT AS EXCESS COST OF SHIPPING YOUR
HOUSEHOLD GOODS UNDER THE CIRCUMSTANCES SHOWN BELOW.
BY ORDERS DATED APRIL 1, 1958, YOU WERE TRANSFERRED FROM YOUR
OVERSEAS DUTY STATION TO DAVIS-MONTHAN AIR FORCE BASE, ARIZONA. AT YOUR
REQUEST A QUANTITY OF HOUSEHOLD EFFECTS WERE PACKED, CRATED AND SHIPPED
FROM YOUR OVERSEAS STATION TO DAVIS-MONTHAN AIR FORCE BASE AND ANOTHER
SHIPMENT WAS PACKED, CRATED AND SHIPPED TO THE LATTER PLACE FROM
FAIRCHILD, WASHINGTON. SINCE THE WEIGHT OF YOUR EFFECTS EXCEEDED YOUR
WEIGHT ALLOWANCE, YOU WERE CHARGED WITH THE EXCESS COST INCURRED. A
FULL EXPLANATION OF THE COMPUTATION OF THE EXCESS COST WAS FURNISHED YOU
BY THE TRANSPORTATION DIVISION, FINANCE CENTER, U.S. ARMY, BY LETTER OF
OCTOBER 20, 1958, AND CHECKAGE OF THE AMOUNT INVOLVED WAS EFFECTED IN
YOUR PAY ACCOUNT. YOUR CLAIM FOR REFUND WAS DISALLOWED BY THE
SETTLEMENT MENTIONED ABOVE FOR THE REASONS STATED THERETO.
IN YOUR PRESENT LETTER YOU SAY THAT THE WEIGHT OF YOUR EFFECTS
SHIPPED IN CONNECTION WITH AN EARLIER PERMANENT CHANGE OF STATION WAS
WITHIN YOUR AUTHORIZED WEIGHT LIMITATION AND YOU BELIEVE THAT THE EXCESS
WEIGHT IN THIS CASE IS DUE TO AN ERROR IN WEIGHING AND/OR TYPING WHICH
MAY HAVE BEEN MADE BY CARRIERS HANDLING THE SHIPMENT OR TO EXCESSIVE
PACKING USED BY THE NORWEGIAN TRANSFER COMPANY BECAUSE OF THEIR
THOROUGHNESS IN PREPARING AN OVERSEAS SHIPMENT. YOU REQUEST THAT WE
DESIGNATE A DISINTERESTED PARTY TO DETERMINE THE WEIGHT OF YOUR
HOUSEHOLD EFFECTS RATHER THAN ACCEPT THE WEIGHTS SHOWN IN THE BILLS OF
LADING.
SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT.
814, PROVIDES THAT, UNDER SUCH CONDITIONS AND LIMITATIONS AS THE
SECRETARIES MAY PRESCRIBE, MEMBERS OF THE UNIFORMED SERVICES SHALL BE
ENTITLED TO TRANSPORTATION OF HOUSEHOLD EFFECTS IN CONNECTION WITH A
CHANGE OF STATION. JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO
THAT AUTHORITY PROVIDE (PARAGRAPH 8001) THAT HOUSEHOLD EFFECTS WITHIN
SPECIFIED WEIGHT ALLOWANCES, DESIGNATED AS ACTUAL NET WEIGHTS, ARE
AUTHORIZED FOR SHIPMENT. SUCH WEIGHTS ARE SET FORTH FOR VARIOUS RANKS
AND GRADES AND PROVISION IS MADE FOR A PERCENTAGE INCREASE TO ALLOW FOR
PACKING AND CRATING. UNDER THAT PROVISION, THE AUTHORIZED NET WEIGHT OF
HOUSEHOLD EFFECTS WHICH MAY BE SHIPPED AT PUBLIC EXPENSE IS INCREASED BY
5 PERCENT FOR SHIPMENT BY VAN, AND BY 40 PERCENT FOR SHIPMENT BY RAIL OR
WATER. THE REGULATIONS FURTHER PROVIDE (SAME PARAGRAPH) THAT WHEN
SPECIALLY DESIGNED HOUSEHOLD GOODS SHIPPING BOXES, LIFT VANS, OR
TRANSPORTERS ARE USED, THE DIFFERENCE BETWEEN THE WEIGHT OF THE
CONTAINER WHEN LOADED AND WHEN EMPTY (THAT IS, THE WEIGHT OF GOODS IN
THE CONTAINER) WILL BE REDUCED BY 15 PERCENT TO ALLOW FOR THE WEIGHT OF
THE PACKING MATERIALS WITHIN THE CONTAINER.
THE FOREGOING REGULATIONS CONTEMPLATE THE SHIPMENT AT GOVERNMENT
EXPENSE OF HOUSEHOLD GOODS, AS PACKED FOR SHIPMENT, AT NOT TO EXCEED AN
OVER-ALL WEIGHT ALLOWANCE OF NET WEIGHT PLUS AN ALLOWANCE FOR PACKING
AND CRATING. SUCH OVER-ALL WEIGHT ALLOWANCE, OF WHICH THE NET WEIGHT OF
THE HOUSEHOLD GOODS IS BUT ONE COMPONENT PART, REPRESENTS THE MAXIMUM
WEIGHT THAT MAY BE SHIPPED AT GOVERNMENT EXPENSE IRRESPECTIVE OF WHETHER
THE ACTUAL NET WEIGHT OF THE GOODS SHIPPED EXCEEDS THE NET WEIGHT
ALLOWANCE SET FORTH IN THE REGULATIONS. WEIGHTS EXCEEDING THE MAXIMUM
OVER-ALL WEIGHT ARE PROPERLY CHARGEABLE TO THE SHIPPER. OUR
CONSIDERATION OF YOUR CLAIM MAY NOT TAKE INTO ACCOUNT THE WEIGHT OF YOUR
PRIOR SHIPMENTS NOR ARE WE AUTHORIZED TO MAKE ANY ADJUSTMENT FOR PACKING
IN EXCESS OF THAT BELIEVED BY YOU TO HAVE BEEN NECESSARY. ALSO, SINCE
FREIGHT CHARGES ARE COMPUTED ON THE GROSS WEIGHT OF A SHIPMENT OF
HOUSEHOLD EFFECTS AND SINCE APPLICABLE REGULATIONS CLEARLY CONTEMPLATED
THAT THE MAXIMUM GROSS WEIGHT, DEPENDENT UPON THE MODE OF TRANSPORTATION
USED, WHICH MAY BE SHIPPED AT GOVERNMENT EXPENSE SHALL BE COMPUTED BY
THE METHODS THERE PROVIDED, IT WOULD APPEAR THAT A REWEIGHING OF YOUR
EFFECTS AT THIS TIME AS YOU REQUEST WOULD SERVE NO USEFUL PURPOSE.
SINCE THE WEIGHT OF YOUR HOUSEHOLD EFFECTS AS SHIPPED EXCEEDED YOUR
WEIGHT ALLOWANCE PLUS THE ALLOWANCE FOR PACKING AND CRATING, YOU WERE
PROPERLY CHARGED WITH THE EXCESS COST OF THE SHIPMENT.
ACCORDINGLY, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM AND
THE SETTLEMENT OF MAY 6, 1959, IS SUSTAINED.
B-140119, JUL. 23, 1959
TO MR. LES W. COOK, AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF
INTERIOR:
YOUR LETTER OF JUNE 25, 1959, REFERENCE D-311A, REQUESTS OUR DECISION
AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT THE SUPPLEMENTAL VOUCHER
TRANSMITTED IN FAVOR OF MR. ROBERT I. BARRY, FOR $30 AS REIMBURSEMENT
FOR THE STORAGE CHARGE ON A PRIVATELY OWNED AUTOMOBILE USED IN OFFICIAL
TRAVEL FROM ANCHORAGE, ALASKA, TO WHITEHORSE, YUKON TERRITORY, THENCE TO
YAKIMA, WASHINGTON.
THE RECORD DISCLOSES THAT THE EMPLOYEE WAS INSTRUCTED TO PROCEED FROM
PHOENIX, ARIZONA, TO JUNEAU, ANCHORAGE, AND RETURN FOR THE PURPOSE OF
AUDITING THE DISTRICT OFFICE AT JUNEAU AND THE EKLUTNA PROJECT OFFICE AT
ANCHORAGE. MR. BARRY WAS AUTHORIZED TO USE, AS REQUIRED, COMMON
CARRIER, PRIVATELY OWNED AUTOMOBILE AT A MILEAGE RATE OF SEVEN CENTS PER
MILE, ADMINISTRATIVELY DETERMINED TO BE TO THE ADVANTAGE OF THE
GOVERNMENT, AND GOVERNMENT-OWNED CONVEYANCE.
THE EMPLOYEE SAYS THAT HE TRAVELED FROM HIS TEMPORARY DUTY STATION AT
PHOENIX, ARIZONA, ABOUT JANUARY 1958, TO ANCHORAGE BY PRIVATELY OWNED
AUTOMOBILE FOR THE PURPOSE OF MAKING AN AUDIT OF THE EKLUTNA PROJECT.
HE COMPLETED THE AUDIT EARLY IN APRIL 1958, AND PROCEEDED TO JUNEAU TO
AUDIT THE DISTRICT OFFICE OF THE BUREAU OF RECLAMATION. HE TRAVELED BY
PRIVATELY OWNED AUTOMOBILE TO WHITEHORSE, YUKON TERRITORY, THENCE BY
COMMERCIAL AIRWAY TO JUNEAU. THE AUTOMOBILE WAS STORED AT WHITEHORSE
FROM APRIL 4, 1958, TO JUNE 4, 1958, AT WHICH TIME THE EMPLOYEE, HAVING
COMPLETED THE AUDIT IN JUNEAU, RETURNED BY COMMERCIAL AIRWAY TO
WHITEHORSE, YUKON TERRITORY, TO PICK UP HIS AUTOMOBILE UPON PAYMENT OF
STORAGE CHARGES OF $30. HE THEN PROCEEDED BY PRIVATELY OWNED AUTOMOBILE
FROM THERE TO HIS NEXT TEMPORARY DUTY STATION, YAKIMA, WASHINGTON.
THE EMPLOYEE SAYS THAT IT IS IMPOSSIBLE TO GET TO JUNEAU FROM ANY
OUTSIDE POINT PRIOR TO THE LATTER PART OF MAY WITH AN AUTOMOBILE WITHOUT
SHIPMENT OF THE CAR BY OCEAN FREIGHT. MR. BARRY COULD HAVE LEFT THE
AUTOMOBILE AT THE EKLUTNA PROJECT INSTEAD OF HIS TAKING IT TO
WHITEHORSE, BUT THE EMPLOYEE SAYS THAT TO HAVE DONE SO WOULD HAVE
INVOLVED TEN TIMES MORE STORAGE CHARGES.
YOU SAY THAT MR. BARRY EXERCISED DUE CARE IN INCURRING EXPENSES THAT
A PRUDENT PERSON WOULD EXERCISE IF TRAVELING ON PERSONAL BUSINESS.
THE ALLOWANCE OF MILEAGE TO AN OFFICER OR EMPLOYEE FOR OFFICIAL
TRAVEL PERFORMED IN A PRIVATELY OWNED AUTOMOBILE AS AUTHORIZED BY THE
TRAVEL EXPENSE ACT OF 1949, AS AMENDED, 5 U.S.C. 835-842, IS A
COMMUTATION OF THE EXPENSE OF OPERATING SUCH AUTOMOBILE. THE ALLOWANCE
OF MILEAGE FOR AUTOMOBILE TRAVEL IS IN LIEU OF ALL TRANSPORTATION COSTS
EXCEPT ACTUAL EXPENSES INCURRED FOR ITEMS EXPRESSLY ENUMERATED IN THE
ACT, SUPRA, WHICH INCLUDE FERRY FARES, BRIDGE, ROAD, AND TUNNEL TOLLS.
THE LONG ESTABLISHED RULE IS THAT AN EMPLOYEE WHO RECEIVES
REIMBURSEMENT UPON A MILEAGE BASIS FOR THE USE OF A PRIVATELY OWNED
AUTOMOBILE ASSUMES ALL EXPENSE FOR MAINTENANCE AND OPERATION OF THE
VEHICLE, INCLUDING GARAGE STORAGE. B-100332, JANUARY 8, 1951 (COPY
ENCLOSED).
IN THE PRESENT SITUATION, HOWEVER, SINCE WE UNDERSTAND THE TRAVEL BY
AUTOMOBILE TO JUNEAU WAS IMPOSSIBLE DURING THE PART OF THE YEAR WHEN THE
TRAVEL WAS BEING PERFORMED, AND SINCE IT APPEARS THAT MR. BARRY DID THE
MOST ECONOMICAL THING HE COULD DO UNDER THE CIRCUMSTANCES, WE CONCLUDE
THAT THE EMPLOYEE'S MILEAGE STATUS TERMINATED FOR REASONS BEYOND HIS
CONTROL AT WHITEHORSE, WHEN HE PLACED HIS CAR IN STORAGE, AND, PURSUANT
TO HIS TRAVEL ORDERS, USED OTHER MEANS OF TRANSPORTATION TO PROCEED TO
JUNEAU FOR ADDITIONAL TEMPORARY DUTY BEFORE RETURNING TO WHITEHORSE FOR
THE RESUMPTION OF HIS MILEAGE STATUS. UNDER SUCH CIRCUMSTANCES, THE
STORAGE CHARGES REASONABLY MAY BE VIEWED AS AN EXTRAORDINARY TRAVEL
EXPENSE NECESSARILY INCURRED BY THE EMPLOYEE IN CONNECTION WITH THE
TRANSACTION OF OFFICIAL BUSINESS, IN NOWISE COMMUTED, HENCE REIMBURSABLE
UNDER SECTION 10.5 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.
SEE 29 COMP. GEN. 440.
THEREFORE, AND SINCE A RECEIPT HAS BEEN FURNISHED IN SUPPORT OF THE
STORAGE CHARGES, THE VOUCHER, WHICH IS RETURNED, MAY BE CERTIFIED FOR
PAYMENT, IF OTHERWISE CORRECT.
B-140130, JUL. 23, 1959
TO HONORABLE E. R. QUESADA, ADMINISTRATOR, FEDERAL AVIATION AGENCY:
REFERENCE IS MADE TO YOUR LETTER OF JULY 2, 1959, WITH ENCLOSURES,
REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR
WHICH THE HENKELMANN CONSTRUCTION COMPANY, INC., GREEN BAY, WISCONSIN,
ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. FA3-250 WAS AWARDED.
THE FEDERAL AVIATION AGENCY, KANSAS CITY, MISSOURI, BY INVITATION NO.
3-59-39 REQUESTED BIDS UNDER SCHEDULE NO. 2 FOR FURNISHING LABOR,
CERTAIN MATERIALS AND PERFORMING ALL WORK IN CONNECTION WITH THE
CONSTRUCTION OF A HIGH INTENSITY APPROACH LIGHT SYSTEM. THE WORK TO BE
PERFORMED UNDER SCHEDULE NO. 2 WAS DIVIDED INTO 21 ITEMS FOR THE
PURPOSES OF SUBMITTING BIDS AND FOR MAKING PAYMENT FOR THE WORK TO BE
PERFORMED. IN RESPONSE THE HENKELMANN CONSTRUCTION COMPANY, INC.,
SUBMITTED A BID DATED MARCH 23, 1959, OFFERING TO PERFORM THE WORK
DESCRIBED UNDER ITEMS 1 TO 21, INCLUSIVE, OF SCHEDULE NO. 2 FOR THE
TOTAL AGGREGATE BID PRICE OF $19,449.80. ON MARCH 25, 1959, THE
AGGREGATE BID OF THE HENKELMANN CONSTRUCTION COMPANY, INC., ON SCHEDULE
NO. 2 WAS ACCEPTED AND COPIES OF THE CONTRACT AND BOND FORMS WERE
TRANSMITTED TO THE CORPORATION FOR EXECUTION.
BY LETTER DATED MARCH 28, 1959, THE HENKELMANN CONSTRUCTION COMPANY,
INC., ADVISED THE CONTRACTING OFFICER THAT IT WAS RETURNING THE CONTRACT
AND BOND FORMS UNSIGNED FOR THE REASON THAT AN ERROR HAD BEEN MADE IN
ITS BID ON ITEM 17 OF SCHEDULE NO. 2; AND THAT A UNIT PRICE OF $748.28
RATHER THAN A UNIT PRICE OF $185, WHICH AMOUNT, IT STATED, COVERED ONLY
THE COST OF THE ELECTRICAL WORK, SHOULD HAVE BEEN QUOTED FOR ITEM 17.
IN REPLY THERETO THE CONTRACTING OFFICER ADVISED THE CORPORATION BY
LETTER DATED MARCH 31, 1959, THAT HE WAS WITHOUT AUTHORITY TO INCREASE
THE UNIT PRICE FOR ITEM 17 OF SCHEDULE NO. 2 BUT THAT AFTER EXECUTION OF
THE CONTRACT AND BOND FORMS, THE CORPORATION COULD SUBMIT A STATEMENT
EXPLAINING THE ERROR IN ITS BID, WHICH WOULD BE TRANSMITTED TO THE
COMPTROLLER GENERAL OF THE UNITED STATES FOR HIS CONSIDERATION. BY
LETTER DATED APRIL 3, 1959, THE CORPORATION SUBMITTED A STATEMENT
EXPLAINING THE ERROR IN ITS BID AND IN ITS LETTER THE CORPORATION STATED
THAT IT WAS AGAIN RETURNING THE CONTRACT AND BOND FORMS UNSIGNED BECAUSE
IT WAS UNABLE TO PERFORM THE WORK DESCRIBED UNDER ITEM 17 OF SCHEDULE
NO. 2 AT THE PRICE SPECIFIED IN THE CONTRACT. WITH ITS LETTER THE
CORPORATION SUBMITTED A COST BREAKDOWN OF ITS INTENDED BID PRICE OF
$748.28 FOR ITEM 17 OF SCHEDULE NO. 2 AND ON THE SHEET CONTAINING SUCH
BREAKDOWN, THE CORPORATION INDICATED THAT THE CORRECT AGGREGATE BID
PRICE FOR SCHEDULE NO. 2 IS $23,392.76. IN SUPPORT OF ITS ALLEGATION OF
ERROR, THE CORPORATION SUBMITTED ITS ORIGINAL WORKSHEET ON ITEM 17 OF
SCHEDULE NO. 2. THE WORKSHEET SHOWS THE PRICES FOR EXCAVATING, CONCRETE
AND GRADING WORK, STRUCTURAL STEEL, PAINTING, SOCIAL SECURITY AND
UNEMPLOYMENT TAXES, AND PROFIT OF 10 PERCENT, AND THE TOTAL OF SUCH
PRICES IS SHOWN AS $554.50. BELOW THE AMOUNT OF $554.50, THERE APPEARS
ON THE WORKSHEET A UNIT PRICE OF $185 FOR ELECTRICAL WORK, WHICH PRICE
THE CORPORATION ALLEGES IT ERRONEOUSLY QUOTED AS THE UNIT PRICE FOR ITEM
17 OF SCHEDULE NO. 2. BY LETTER DATED APRIL 7, 1959, THE CONTRACTING
OFFICER ADVISED THE CORPORATION THAT UNLESS IT EXECUTED AND RETURNED THE
ENCLOSED CONTRACT AND BOND FORMS BY THE DATE SPECIFIED THEREIN, IT WOULD
BE CONSIDERED IN DEFAULT UNDER THE CONTRACT AND THAT THE CONTRACT WOULD
BE AWARDED TO THE NEXT LOWEST BIDDER. THE RECORD INDICATES THAT IN
RESPONSE TO THIS REQUEST, THE CORPORATION EXECUTED AND RETURNED THE
CONTRACT AND BOND FORMS AND THAT SUCH FORMS WERE RECEIVED BY THE
CONTRACTING OFFICE ON APRIL 14, 1959.
THE LIST OF BIDS IN THE CONTRACTING OFFICER'S REPORT SHOWS THAT THE
FOUR OTHER AGGREGATE BIDS ON SCHEDULE NO. 2 WERE IN THE AMOUNTS OF
$25,050, $25,646, $30,021.75, AND $30,395.75, AND THAT THE GOVERNMENT'S
ESTIMATE FOR THE SCHEDULE WAS $31,414.50. IN VIEW OF THE DIFFERENCE
BETWEEN THE AGGREGATE BID OF HENKELMANN CONSTRUCTION COMPANY, INC., OF
$19,449.80 FOR SCHEDULE NO. 2 AND THE NEXT LOWEST AGGREGATE BID RECEIVED
THEREON, THE PROBABILITY OF ERROR WAS APPARENT AND, IN THESE
CIRCUMSTANCES, THE BID SHOULD NOT HAVE BEEN ACCEPTED WITHOUT REQUESTING
THE CORPORATION TO VERIFY ITS BID ON SCHEDULE NO. 2.
THERE APPEARS LITTLE ROOM FOR DOUBT THAT THE CORPORATION MADE A BONA
FIDE ERROR ON ITEM 17 OF SCHEDULE NO. 2, AS ALLEGED, AND IT APPEARS THAT
THE PRICE THE CORPORATION INTENDED TO BID FOR THAT ITEM IS ESTABLISHED
SUFFICIENTLY BY THE CORPORATION'S WORKSHEET AND COST BREAKDOWN.
ACCORDINGLY, SINCE THE RECORD INDICATES THAT THE CORPORATION WAS
INSTRUCTED TO PERFORM THE WORK REQUIRED UNDER SCHEDULE NO. 2, SUBJECT TO
ACTION BY THE COMPTROLLER GENERAL OF THE UNITED STATES ON THE CLAIM FOR
RELIEF, CONTRACT NO. FA3-250 MAY BE AMENDED TO INCREASE THE UNIT PRICE
FOR ITEM 17 TO $748.28 AND PAYMENT FOR THAT ITEM IS AUTHORIZED TO BE
MADE ON THAT BASIS. THE AGGREGATE BID OF THE HENKELMANN CONSTRUCTION
COMPANY, INC., ON SCHEDULE NO. 2, AS CORRECTED, WILL STILL BE THE LOWEST
AGGREGATE BID RECEIVED ON THAT SCHEDULE.
A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE AMENDMENT TO BE
ATTACHED TO THE CONTRACT.
B-140146, JUL. 23, 1959
TO MR. GEORGE P. OVERLY:
YOUR LETTER OF JUNE 9, 1959, REQUESTS RECONSIDERATION OF OUR OFFICE
SETTLEMENT OF APRIL 30, 1959, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL
COMPENSATION BELIEVED TO BE DUE YOU INCIDENT TO YOUR EMPLOYMENT WITH THE
DEPARTMENT OF THE NAVY, NAVAL STATION, SANGLEY POINT, PHILIPPINE
ISLANDS.
YOUR CLAIM WAS DISALLOWED BECAUSE THE RECORD SHOWS THAT THE POSITION
YOU OCCUPIED AS FIREFIGHTER WAS ESTABLISHED FOR NON-AMERICAN CITIZENS;
THAT YOU WOULD NOT HAVE BEEN ELIGIBLE FOR THE POSITION AS AN AMERICAN
CITIZEN; THAT AFTER YOU PRESENTED EVIDENCE ON APRIL 23, 1958, TO SHOW
THAT YOU ACQUIRED CITIZENSHIP ON AUGUST 21, 1956, ACTION TO PLACE YOU IN
A POSITION, BUT NOT RETROACTIVELY, SUBJECT TO THE CLASSIFICATION ACT OF
1949, AS AMENDED, WAS APPROVED DECEMBER 12, 1958, TO BECOME EFFECTIVE ON
DECEMBER 14, 1958; THAT DUE TO BUDGETARY AND STATUTORY CEILING
LIMITATIONS YOU WERE SEPARATED ON DECEMBER 13, 1958, WHICH BECAME
EFFECTIVE PRIOR TO ADMINISTRATIVE ACTION TO PLACE YOU IN A POSITION
UNDER THE CLASSIFICATION ACT OF 1949.
YOU CONTEND THAT YOU WERE AN AMERICAN CITIZEN AND SHOULD HAVE BEEN
SUBJECT TO THE CLASSIFICATION ACT SCHEDULES OF COMPENSATION. SECTION
202 (11) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1082,
SPECIFICALLY PROVIDES THAT SUCH ACT SHALL NOT APPLY TO "ALIENS OR
PERSONS NOT CITIZENS OF THE UNITED STATES WHO OCCUPY POSITIONS OUTSIDE
THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA.' WE UNDERSTAND THAT
UNDER THAT PROVISION IT WAS THE PRACTICE IN MANY AREAS OUTSIDE THE
UNITED STATES TO ESTABLISH TWO SETS OF POSITIONS WHICH MIGHT HAVE
INVOLVED THE SAME DUTIES. THESE WERE (1) THOSE POSITIONS NORMALLY
OCCUPIED BY ALIEN AND NATIVE EMPLOYEES WHO WERE NOT SUBJECT TO THE
CLASSIFICATION ACT AND (2) THOSE POSITIONS WHICH WERE REQUIRED TO BE
FILLED BY CITIZENS OF THE UNITED STATES AND THUS SUBJECT TO THE
CLASSIFICATION ACT.
THE PAY OF THE ALIEN AND NATIVE EMPLOYEES USUALLY WAS PRESCRIBED BY
THE DEPARTMENT OR AGENCY TO ACCORD WITH THE RATES PREVAILING IN THE
PARTICULAR AREA, THE COMPENSATION THUS ESTABLISHED GENERALLY BEING LOWER
THAN THE COMPENSATION PROVIDED BY THE CLASSIFICATION ACT SCHEDULES.
IT WAS OBVIOUS TO YOU WHEN YOU FIRST WERE EMPLOYED THAT THE POSITION
TO BE OCCUPIED WAS ONE OF THOSE ESTABLISHED IN THE NATIVE RATE.
MOREOVER, THERE WAS NO OBLIGATION ON THE PART OF THE DEPARTMENT OF THE
NAVY TO CREATE AN ADDITIONAL POSITION UNDER THE CLASSIFICATION ACT IN
ORDER TO RETAIN YOU ON THE ROLLS AFTER YOU HAD ESTABLISHED YOUR
CITIZENSHIP. PRESUMABLY, SUCH AN ACTION WOULD HAVE BEEN PRECLUDED
BECAUSE OF THE LIMITATION OF FUNDS EVEN IF IT HAD BEEN DESIRABLE.
UNDER THE CIRCUMSTANCES WE MUST SUSTAIN THE ACTION IN OUR SETTLEMENT
OF APRIL 30, 1959, IN DENYING ADDITIONAL COMPENSATION TO YOU DURING THE
PERIOD IN QUESTION.
A-56721, JUL. 22, 1959
TO EMERY AND WOOD, ATTORNEYS AT LAW:
IN YOUR LETTER OF JUNE 17, 1959, YOU REQUEST RECONSIDERATION OF OUR
DECISION DATED MAY 7, 1959, A-56721, DENYING THE CLAIM OF MAJOR OLIVER
HOLDEN FOR INCREASED RETIRED PAY ON THE GROUND OF THE DOCTRINE OF RES
JUDICATA HE HAVING PREVIOUSLY HAD HIS RIGHT TO INCREASED RETIRED PAY
ADJUDICATED BY THE COURT OF CLAIMS IN THE CASE OF HOLDEN V. UNITED
STATES, 123 C.CLS. 866. AS A BASIS FOR THIS REQUEST YOU CITE THE
COURT'S RULING IN THE CASE OF HARRINGTON V. UNITED STATES, C.CLS.
424-57, DECIDED JUNE 3, 1959.
THE COURT CONCLUDED IN THE HARRINGTON CASE THAT ITS PRIOR DECISION ON
AN ACTION BY THE PLAINTIFF FOR INCREASED RETIRED PAY WAS NOT RES
JUDICATA WITH RESPECT TO THE CLAIM FOR INCREASED RETIRED PAY THERE
ASSERTED. IN ARRIVING AT THIS CONCLUSION, HOWEVER, THE COURT POINTED
OUT THAT THE SECOND CLAIM AROSE UNDER A STATUTE WHICH HAD NOT BEEN
ENACTED WHEN THE PETITION WHICH WAS THE SUBJECT OF THE PRIOR DECISION
WAS FILED. APPARENTLY THAT FACT FORMED THE PRIMARY BASIS FOR THE
COURT'S CONCLUSION.
SINCE THE STATUTE ON WHICH MAJOR HOLDEN BASES HIS PRESENT CLAIM WAS
IN EXISTENCE WHEN HE FILED THE PETITION WHICH RESULTED IN THE DECISION
REPORTED AT 123 C.CLS. 866, AND ANY RIGHT THEREUNDER COULD HAVE BEEN
CLAIMED IN THAT PETITION, WE DO NOT BELIEVE THAT THE CITED DECISION IN
THE HARRINGTON CASE CONSTITUTES ANY AUTHORITY FOR FAVORABLE ACTION ON
HIS PRESENT CLAIM. ACCORDINGLY WE MUST CONTINUE TO DENY MAJOR HOLDEN'S
CLAIM, AT LEAST UNTIL SUCH TIME AS THE COURT HAS CONSIDERED AND RULES ON
THE RES JUDICATA QUESTION PRESENTED IN HIS PRESENT CASE. IN THIS
CONNECTION SEE OUR COMMENTS IN THE DECISION OF MAY 7, 1959, CONCERNING
THE PENDING CASE OF BERRY V. UNITED STATES, C.CLS. NO. 108-59.
B-132335, JUL. 22, 1959
TO MIMASU SANGYO G. K. :
REFERENCE IS MADE TO YOUR LETTER DATED MARCH 21, 1959, REQUESTING
FURTHER CONSIDERATION OF OUR DECISION OF JANUARY 27, 1958, SUSTAINING
THE SETTLEMENT OF APRIL 30, 1957, WHICH DISALLOWED YOUR CLAIM FOR A
PARTIAL REFUND OF THE AMOUNT PAID FOR UNPREPARED STEEL AND IRON HEAVY
(SCRAP) PURCHASED FROM THE UNITED STATES DEPARTMENT OF THE ARMY UNDER
CONTRACT NO. DA/S/92-557-FEC-11873, DATED AUGUST 31, 1956.
THE MATTERS PRESENTED IN SUPPORT OF YOUR CONTENTION WERE CONSIDERED
IN OUR DECISION OF JANUARY 27, JUNE 10, AND NOVEMBER 21, 1958. NO NEW
EVIDENCE HAVING BEEN PRESENTED BY YOU, THE ACTION PREVIOUSLY TAKEN BY
OUR OFFICE IN THE MATTER IS AFFIRMED. ALL CLAIMS FOR AND AGAINST THE
UNITED STATES ARE SUBJECT TO SETTLEMENT IN THE GENERAL ACCOUNTING
OFFICE, AND OUR DECISIONS ARE BINDING UPON ALL DEPARTMENTS AND AGENCIES
OF THE EXECUTIVE BRANCH OF THE UNITED STATES GOVERNMENT.
IF YOUR REQUEST THAT YOUR CLAIM BE REFERRED TO "MEMBERS OF UPPER AND
LOWER HOUSE" HAS REFERENCE TO THE ACT OF APRIL 10, 1928, 31 U.S.C. 236,
YOU ARE ADVISED YOUR CLAIM DOES NOT CONTAIN SUCH ELEMENTS OF EQUITY AS
WOULD REQUIRE OUR OFFICE TO REPORT IT TO THE UNITED STATES CONGRESS FOR
CONSIDERATION UNDER THAT ACT.
IN THE CIRCUMSTANCES, IT APPEARS THAT FURTHER CORRESPONDENCE WITH OUR
OFFICE ON THIS CLAIM WILL SERVE NO USEFUL PURPOSE.
B-140101, JUL. 22, 1959
TO COLONEL SPOTTSWOOD W. DUKE:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 18, 1959, CONCERNING THE
ACTION TAKEN BY OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM FOR
INCREASED RETIRED PAY COMPUTED ON THE BASIS OF THE FOURTH PARAGRAPH OF
SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942.
AS ALLEGED BY YOU, AND AS SHOWN IN VOLUME 2, 1959 ARMY REGISTER, AT
PAGE 146, YOU WERE RETIRED AS A COLONEL, USAR, UNDER THE PROVISIONS OF
TITLE III OF THE ACT OF JUNE 29, 1948 (PUBLIC LAW 810), 62 STAT. 1087,
EFFECTIVE MAY 31, 1954, AND YOUR RETIRED PAY APPARENTLY WAS COMPUTED IN
ACCORDANCE WITH THE PROVISIONS OF THAT ACT. YOU CLAIMED THE DIFFERENCE
BETWEEN THE AMOUNT OF RETIRED PAY RECEIVED BY YOU SINCE RETIREMENT AND
RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF YOUR ACTIVE DUTY PAY
AT THE TIME OF RETIREMENT UNDER THE 1942 ACT.
WE HAVE CONSISTENTLY HELD THAT THE FOURTH PARAGRAPH OF SECTION 15 OF
THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, 368, APPLIES ONLY TO
OFFICERS OF THE REGULAR SERVICES AND THAT RESERVE OFFICERS RETIRED NOT
BY REASON OF PHYSICAL DISABILITY, AS IN YOUR CASE, ARE NOT ENTITLED TO
THE BENEFITS OF THOSE PROVISIONS. B-94125, JULY 27, 1950. THE COURT OF
CLAIMS HAS TAKEN THE SAME VIEW IN ITS OPINIONS RENDERED IN BERRY V.
UNITED STATES, 123 C.CLS. 530, AND REYNOLDS V. UNITED STATES,
125 C.CLS. 108.
ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION DISALLOWING YOUR
CLAIM WAS CORRECT AND IS SUSTAINED.
FOR YOUR INFORMATION, HOWEVER, THERE ARE NOW PENDING IN THE COURT OF
CLAIMS, SEVERAL PETITIONS WHICH INVOLVE THE SAME STATUTORY PROVISIONS
AND THE IDENTICAL ISSUES RAISED IN YOUR CLAIM. THE CASES NOW BEFORE THE
COURT ARE PAUL V. BARNES, ET AL. V. UNITED STATES, C.CLS. NO. 236-59;
WILLIAM H. ABRAMS, ET AL. V. UNITED STATES, C.CLS. 237-59, AND JOHN C.
ABBOTT, ET AL. V. UNITED STATES, C.CLS. NO. 235-59.
B-140191, JUL. 22, 1959
TO MR. FRANKLIN L. THATCHER, CONTRACTING OFFICER, UNITED STATES
TREASURY DEPARTMENT:
REFERENCE IS MADE TO YOUR LETTER (C:AD:O:P), DATED JULY 10, 1959,
WITH ENCLOSURES, REQUESTING A DECISION CONCERNING AN ERROR WHICH NOONAN
BUSINESS FORMS COMPANY, WASHINGTON, D.C., ALLEGES IT MADE IN ITS BID
SUBMITTED IN RESPONSE TO INVITATION NO. 34 (FY-59).
INVITATION NO. 34 (FY-59), ISSUED JUNE 16, 1959, BY THE TREASURY
DEPARTMENT, INTERNAL REVENUE SERVICE, AND MAILED TO OVER 30 PROSPECTIVE
BIDDERS, SOLICITED BIDS FOR PRICES FOR THE PRODUCTION OF 1,500,000
COPIES OF FORM 1-A, A MARGINALLY PUNCHED ASSEMBLY, AND DELIVERY THEREOF
AS SPECIFIED IN THE INVITATION.
YOU STATE THAT AN EXAMINATION AND COMPARISON OF THE BIDS RECEIVED
SHOWED THAT THE LOW BIDDER, NOONAN BUSINESS FORMS COMPANY, MAY HAVE
ERRED IN SUBMITTING THE COST OF THE REQUIRED RAILWAY EXPRESS PROTECTIVE
SIGNATURE SERVICE, THE BID PRICES FOR THIS SERVICE, WHICH WAS LISTED AS
A SEPARATE ITEM BY EACH BIDDER, BEING AS FOLLOWS:
TABLE
NOONAN BUSINESS FORMS COMPANY . . . . . . $311.65
PHILIP HANO CO., INC. . . . . . . . . . 982.87
THE STANDARD REGISTER COMPANY . . . . . 825.00
THE EGRY REGISTER COMPANY . . . . . . . 891.04.
THE NOONAN BUSINESS FORMS COMPANY WAS, THEREFORE, REQUESTED TO VERIFY
ITS BID, AND IN REPLY THE COMPANY IN A LETTER DATED JULY 1, 1959, STATED
THAT THROUGH A MISINTERPRETATION OF THE SPECIFICATIONS THAT PART OF ITS
BID RELATING TO TRANSPORTATION COSTS WAS IN ERROR AND REQUESTED
PERMISSION TO WITHDRAW ITS BID. IN LETTER DATED JULY 7, 1959, THE
BIDDER EXPLAINED IN DETAIL HOW THE ERROR OCCURRED AND THAT ITS CORRECT
BID FOR "PROTECTIVE SERVICE" FREIGHT COST SHOULD HAVE BEEN "0.66 CENTS
PER M" INSTEAD OF "0.20 CENTS PER M" ON WHICH ITS BID PRICE WAS FIGURED,
AND THAT SHOULD IT BE COMPELLED TO PRODUCE AND SHIP THE FORMS IN
ACCORDANCE WITH THE SPECIFICATIONS AS IT NOW CORRECTLY UNDERSTANDS THEM,
THE SHIPPING BY RAILWAY EXPRESS PROTECTIVE SIGNATURE SERVICE WOULD
RESULT IN A SUBSTANTIAL MONETARY LOSS TO THE COMPANY. THE COMPANY AGAIN
REQUESTED THAT IT BE PERMITTED TO WITHDRAW ITS BID.
THE RECORD LEAVES LITTLE, IF ANY, DOUBT THAT THE COMPANY MADE AN
ERROR IN ITS BID, AS ALLEGED. ACCORDINGLY, SINCE YOU BELIEVED THAT THE
BID OF NOONAN BUSINESS FORMS COMPANY WAS ERRONEOUS AND SUCH BELIEF WAS
CONFIRMED AND THE ERROR WAS EXPLAINED BY THE BIDDER PRIOR TO AWARD, ITS
BID MAY BE DISREGARDED IN MAKING THE AWARD.
B-94123, JUL. 22, 1959
TO EMERY AND WOOD:
IN YOUR LETTER OF JUNE 17, 1959, YOU REQUEST RECONSIDERATION OF OUR
DECISION DATED APRIL 22, 1959, B-94123, DENYING THE CLAIM OF MAJOR
CHARLES F. FRIZZELL, JR., FOR INCREASED RETIRED PAY ON THE GROUND OF THE
DOCTRINE OF RES JUDICATA, HE HAVING PREVIOUSLY HAD HIS RIGHT TO
INCREASED RETIRED PAY ADJUDICATED BY THE COURT OF CLAIMS IN THE CASE OF
FRIZZELL V. UNITED STATES, 122 C.CLS. 337. AS A BASIS FOR THIS REQUEST
YOU CITE THE COURT'S RULING IN THE CASE OF HARRINGTON V. UNITED STATES,
C.CLS. NO. 424-57, DECIDED JUNE 3, 1959.
THE COURT CONCLUDED IN THE HARRINGTON CASE THAT ITS PRIOR DECISION ON
A CLAIM BY THE PLAINTIFF FOR INCREASED RETIRED PAY WAS NOT RES JUDICATA
WITH RESPECT TO THE CLAIM FOR INCREASED RETIRED PAY THERE ASSERTED. IN
ARRIVING AT THIS CONCLUSION, HOWEVER, THE COURT POINTED OUT THAT THE
SECOND CLAIM AROSE UNDER A STATUTE WHICH HAD NOT BEEN ENACTED AT THE
TIME WHEN THE PETITION WHICH WAS THE SUBJECT OF THE PRIOR DECISION WAS
FILED. APPARENTLY THAT FACT FORMED THE PRIMARY BASIS FOR THE COURT'S
CONCLUSION.
SINCE THE STATUTE ON WHICH MAJOR FRIZZELL BASES HIS PRESENT CLAIM WAS
IN EXISTENCE WHEN HE FILED THE PETITION WHICH RESULTED IN THE DECISION
REPORTED AT 123 C.CLS. 337, AND ANY RIGHT THEREUNDER COULD HAVE BEEN
CLAIMED IN THAT PETITION, WE DO NOT BELIEVE THAT THE CITED DECISION IN
THE HARRINGTON CASE CONSTITUTES ANY AUTHORITY FOR FAVORABLE ACTION ON
HIS PRESENT CLAIM. ACCORDINGLY WE MUST CONTINUE TO DENY MAJOR
FRIZZELL'S CLAIM, AT LEAST UNTIL SUCH TIME AS THE COURT HAS CONSIDERED
AND RULED ON THE RES JUDICATA QUESTION PRESENTED IN HIS PRESENT CASE.
IN THIS CONNECTION SEE OUR COMMENTS IN THE DECISION OF APRIL 22, 1959,
CONCERNING THE PENDING CASE OF BERRY V. UNITED STATES, C.CLS. NO.
108-59.
A-44840, JUL. 21, 1959
TO MR. H. R. OWSLEY, FINANCE OFFICER, VETERANS BENEFITS OFFICE:
REFERENCE IS MADE TO YOUR LETTER OF APRIL 28, 1959, FILE C-1 270 847,
MCGRATH, JAMES G., CODE 72, 3072/242A, IN WHICH YOU REQUEST OUR VIEWS AS
TO WHETHER MR. JAMES G. MCGRATH IS ENTITLED TO EMERGENCY OFFICER RETIRED
PAY IN THE GRADE OF MAJOR.
ENCLOSED WITH YOUR LETTER IS A LETTER DATED FEBRUARY 23, 1959, FROM
MR. MCGRATH TO THE ADMINISTRATOR OF VETERANS AFFAIRS, IN WHICH THE
FORMER OFFICER STATES THAT WHEN HIS NAME WAS PLACED ON THE EMERGENCY
OFFICERS' RETIRED LIST IN 1928 IN THE GRADE OF CAPTAIN, HE HELD THE
RESERVE RANK OF MAJOR; THAT HE HAS QUALIFIED FOR AND IS RECEIVING
RETIRED PAY COMPUTED UNDER THE PROVISIONS OF SECTION 402 (D) OF THE
CAREER COMPENSATION ACT OF 1949, AND THAT UNDER OUR DECISION B-136900 HE
CLAIMS THE RETIRED PAY OF A MAJOR.
DECISION B-136900, OCTOBER 6, 1958, 38 COMP. GEN. 268, IMPLEMENTED
OUR DECISION OF MARCH 7, 1958, B-123643, 37 COMP. GEN. 585, IN WHICH WE
STATED THAT WE WOULD FOLLOW THE PRINCIPLE OF THE TRACY (136 C.CLS.
211), LOWELL (C.CLS.NO. 361-56, DECIDED JANUARY 15, 1958), AND BUDD
(C.CLS.NO. 467-56, DECIDED JANUARY 15, 1958) CASES AND MATTERS OF
DISABILITY RETIRED PAY ARISING UNDER SECTION 402 (D) OF THE CAREER
COMPENSATION ACT OF 1949, 63 STAT. 818. IN THOSE CASES THE COURT HELD
THAT UNDER SECTION 402 (D), DISABILITY RETIRED PAY, INSOFAR AS THE GRADE
IN WHICH AN INDIVIDUAL IS RETIRED IS CONCERNED, SHOULD BE COMPUTED ON
THE BASIS OF THE PERMANENT RESERVE GRADE HELD BY THE MEMBER AT THE TIME
OF RETIREMENT, IF HIGHER THAN THE TEMPORARY GRADE IN THE ARMY OF THE
UNITED STATES IN WHICH HE THEN WAS SERVING, EVEN THOUGH HE MAY NEVER
HAVE PERFORMED ANY ACTIVE DUTY IN THE HIGHER PERMANENT GRADE.
MR. MCGRATH'S RETIRED PAY ACCRUES TO HIM UNDER THE ACT OF MAY 24,
1928, 45 STAT. 735, PROVIDING THAT NON-REGULAR OFFICERS WHO INCURRED
PHYSICAL DISABILITY OF NOT LESS THAN 30 PERCENTUM DURING SERVICE IN "THE
WORLD WAR" SHOULD RECEIVE "RETIRED PAY AT THE RATE OF 75 PERCENTUM OF
THE PAY TO WHICH THEY WERE ENTITLED AT THE TIME OF THEIR DISCHARGE FROM
THEIR COMMISSIONED SERVICE.' THE TERM "WORLD WAR" WAS DEFINED AS
INCLUDING THE PERIOD FROM APRIL 6, 1917, TO JULY 2, 1921.
WHILE MR. MCGRATH MAY HAVE "HELD" THE GRADE OF MAJOR WHEN HE WAS
PLACED ON THE EMERGENCY OFFICERS' RETIRED LIST IN THE GRADE OF CAPTAIN,
HIS SITUATION IS NOT COMPARABLE TO THAT OF TRACY, LOWELL, AND BUDD---
OFFICERS OF THE ARMY OF THE UNITED STATES HOLDING HIGHER PERMANENT
COMMISSIONS IN THE OFFICERS RESERVE CORPS--- SINCE MR. MCGRATH'S RIGHT
TO RETIRED PAY IS RESTRICTED TO PAY OF THE EMERGENCY OFFICER GRADE IN
WHICH HE SERVED ON ACTIVE DUTY DURING WORLD WAR I. COMPARE, GENERALLY,
TALL V. UNITED STATES, 79 C.CLS. 251.
MR. MCGRATH APPEARS TO BE ENTITLED TO THE RETIRED PAY OF A CAPTAIN,
WHICH HE PRESUMABLY IS RECEIVING.
B-138293, JUL. 21, 1959
TO KING AND KING:
REFERENCE IS MADE TO YOUR LETTER DATED APRIL 3, 1959, REQUESTING
RECONSIDERATION OF OUR DECISION DATED MARCH 2, 1959, B-138293, WHEREIN
JOHN HANSEN, CHIEF BOATSWAIN, U.S. NAVY, RETIRED, WAS DENIED THE TEN
PERCENT ALLOWANCE FOR GOOD CONDUCT IN THE COMPUTATION OF HIS RETIRED
PAY, AS PROVIDED IN THE FIRST PROVISO TO SECTION 203 OF THE NAVAL
RESERVE ACT OF 1938, 52 STAT. 1178. IN OUR DECISION OF MARCH 2, 1959,
WE ADVISED YOU THAT A REPORT BY THE BUREAU OF NAVAL PERSONNEL STATED
THAT MR. HANSEN'S AVERAGE MARKS IN CONDUCT WAS BUT 94 PERCENT, WHEREAS
THE LAW REQUIRED THAT THE AVERAGE MARKS IN CONDUCT FOR TWENTY OR MORE
YEARS SHALL NOT BE LESS THAN 95 PERCENTUM OF THE MAXIMUM FOR ENTITLEMENT
TO THE TEN PERCENT INCREASE IN RETIRED PAY.
IN YOUR PRESENT LETTER YOU STATE THAT COPIES OF MR. HANSEN'S NAVAL
RECORDS, IN YOUR POSSESSION, AND INFORMAL DISCUSSIONS WITH THE BUREAU OF
NAVAL PERSONNEL, INDICATE THAT MR. HANSEN'S MARKS AVERAGED 95.3 PERCENT.
IN VIEW OF YOUR REPRESENTATION WE REQUESTED A FURTHER REPORT FROM THE
BUREAU OF NAVAL PERSONNEL, AND BY LETTER DATED JUNE 25, 1959, WE WERE
ADVISED AS FOLLOWS:
"THE RECORDS OF THE BUREAU SHOW THAT CHIEF BOATSWAIN HANSEN'S AVERAGE
CONDUCT MARK FOR THE PERIOD 6 JANUARY 1903 TO 18 JULY 1922 AND FROM 5
JUNE 1942 TO 30 SEPTEMBER 1943 WAS 93.57.
"THIS LETTER CANCELS BUREAU OF NAVAL PERSONNEL LETTER PERS-E24-MRT:DJ
OF 13 FEBRUARY 1959.'
ACCORDINGLY, SINCE MR. HANSEN'S AVERAGE MARK FOR GOOD CONDUCT FOR
ENLISTED SERVICE IS BUT 93.57 PERCENT, HE IS NOT ENTITLED TO THE
INCREASE IN RETIRED PAY PROVIDED BY LAW. THE SETTLEMENT OF JULY 21,
1958, OMITTING SUCH INCREASE, WAS CORRECT, AND OUR DECISION OF MARCH 2,
1959, SUSTAINING THE SETTLEMENT, UPON FURTHER REVIEW, IS ADHERED TO.
B-138871, JUL. 21, 1959
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO LETTER OF FEBRUARY 20, 1959, WITH ENCLOSURES,
FROM THE ASSISTANT SECRETARY OF THE NAVY, PDTATAC CONTROL NUMBER 59-3,
QUESTIONING THE PROPRIETY OF AUDIT EXCEPTIONS TAKEN BY OUR MARINE CORPS
AUDIT BRANCH TO PAYMENTS MADE TO SERGEANT CARL D. MACEK, USMC, FOR PER
DIEM COVERING THE PERIOD FROM OCTOBER 5, 1955, TO AUGUST 7, 1957,
INCIDENT TO TEMPORARY DUTY PERFORMED AT SAN DIEGO, CALIFORNIA, IN THE
CIRCUMSTANCES SHOWN.
BY ORDERS DATED OCTOBER 3, 1955, AS MODIFIED, ISSUED BY HEADQUARTERS,
MARINE CORPS BASE, CAMP PENDLETON, CALIFORNIA, SERGEANT MACEK WAS
DIRECTED TO PROCEED ON OCTOBER 4, 1955, FROM CAMP PENDLETON AND REPORT
AT THE MARINE CORPS RECRUIT DEPOT, SAN DIEGO, CALIFORNIA, FOR TEMPORARY
ADDITIONAL DUTY FOR AN INDEFINITE PERIOD IN CONNECTION WITH THE
COMMANDING GENERAL'S PICKET BOAT, AND UPON COMPLETION OF SUCH TEMPORARY
ADDITIONAL DUTY HE WAS DIRECTED TO RETURN TO CAMP PENDLETON AND RESUME
HIS REGULAR DUTIES. HE REPORTED, AS DIRECTED, AT SAN DIEGO ON OCTOBER
4, 1955. BY ORDERS DATED JULY 2, 1957, ISSUED BY HEADQUARTERS, MARINE
CORPS BASE, CAMP PENDLETON, HE WAS DIRECTED TO PROCEED AND REPORT TO THE
MARINE CORPS RECRUIT DEPOT, SAN DIEGO, CALIFORNIA, FOR TEMPORARY
ADDITIONAL DUTY FOR A PERIOD OF ABOUT 13 WEEKS IN CONNECTION WITH
SERVING AS A CREW MEMBER ABOARD THE COMMANDING GENERAL'S PICKET BOAT.
SUCH ORDERS FURTHER PROVIDED THAT UPON COMPLETION OF THE TEMPORARY
ADDITIONAL DUTY AND WHEN DIRECTED BY PROPER AUTHORITY NOT LATER THAN
SEPTEMBER 30, 1957, HE WOULD RETURN TO CAMP PENDLETON AND RESUME HIS
REGULAR DUTIES. HE RECEIVED THESE ORDERS AT SAN DIEGO. HE RETURNED TO
CAMP PENDLETON AND RESUMED HIS REGULAR DUTIES ON AUGUST 8, 1957. HE WAS
PAID PER DIEM FOR THE PERIOD FROM OCTOBER 5, 1955, TO AUGUST 7, 1957,
EXCEPT FOR A PERIOD OF LEAVE, WHILE ON DUTY AT SAN DIEGO. IT IS SHOWN
THAT HE RESIDED IN SAN DIEGO FROM MAY 1954 THROUGH THE PERIOD HERE
INVOLVED. IT APPEARS THAT DURING SUCH PERIOD HE WAS AUTHORIZED TO MESS
SEPARATELY AND WAS PAID COMMUTED RATIONS. EXCEPTIONS WERE TAKEN TO THE
PER DIEM PAYMENTS MADE TO SERGEANT MACEK ON THE BASIS THAT SAN DIEGO WAS
HIS DUTY STATION AND HENCE HE WAS NOT ENTITLED TO PER DIEM WHILE ON DUTY
THERE.
IT IS STATED IN THE LETTER OF THE ASSISTANT SECRETARY THAT SERGEANT
MACEK'S DUTIES IN CARRYING OUT THE TEMPORARY ADDITIONAL DUTY ORDERS
REQUIRED HIM TO REMAIN IN THE IMMEDIATE VICINITY OF THE PICKET BOAT,
WHICH BOAT WAS REQUIRED TO BE ON CALL FOR 24 HOURS EVERYDAY; AND THAT
SINCE THE NORMAL COMPLEMENT OF THE BOAT WAS THREE MEMBERS, SERGEANT
MACEK REMAINED ON THE BOAT EVERY THIRD NIGHT. IT IS FURTHER STATED THAT
THE BOAT WAS ASSIGNED TO THE COMMANDING GENERAL, MARINE CORPS BASE, CAMP
PENDLETON, FOR PATROL OF THE OCEAN WATERS IMMEDIATELY ADJACENT TO CAMP
PENDLETON, WHICH IS APPROXIMATELY 35 MILES FROM THE MARINE CORPS RECRUIT
DEPOT AT SAN DIEGO; AND THAT THE ORDER ISSUING AUTHORITY CONTEMPLATED
THAT THE TEMPORARY ADDITIONAL DUTY DIRECTED WAS TO BE OF SHORT DURATION
BECAUSE OF THE OFFICIAL MISSION OF THE PICKET BOAT AND THE BELIEF THAT
AT SOME FUTURE DATE THE BOAT WOULD BE BERTHED IN THE ACTUAL HARBOR
FACILITIES OF CAMP PENDLETON WHEN THOSE FACILITIES BECAME AVAILABLE. ON
SUCH BASIS, IT IS REQUESTED THAT THE EXCEPTIONS IN QUESTION BE
WITHDRAWN.
SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT.
813, AND PARAGRAPH 3050 OF THE JOINT TRAVEL REGULATIONS AUTHORIZE THE
PAYMENT OF PER DIEM AND OTHER TRAVEL ALLOWANCES TO MEMBERS OF THE
UNIFORMED SERVICES ONLY FOR PERIODS WHILE THEY ARE IN A TRAVEL STATUS
AWAY FROM THEIR DESIGNATED POSTS OF DUTY. FOR THE PURPOSES OF
ENTITLEMENT TO PER DIEM, A MEMBER'S DUTY STATION HAS BEEN HELD TO
INCLUDE THE PLACE FROM WHICH HE COMMUTES DAILY TO HIS STATION. 34 COMP.
GEN. 549. ALSO, COMPARE B-138660, DATED MARCH 30, 1959.
IT APPEARS THAT PRIOR TO THE TIME SERGEANT MACEK WAS DIRECTED TO
PROCEED FROM HIS PERMANENT DUTY STATION AT CAMP PENDLETON TO SAN DIEGO
BY THE ORDERS OF OCTOBER 3, 1955, HE COMMUTED DAILY FROM HIS RESIDENCE
IN SAN DIEGO TO CAMP PENDLETON. DURING THE TIME HE WAS PERFORMING
TEMPORARY DUTY AT SAN DIEGO, HE CONTINUED TO RESIDE IN THAT CITY. THUS,
HE MAY NOT BE REGARDED AS HAVING BEEN AWAY FROM HIS DESIGNATED POST OF
DUTY FOR PER DIEM PURPOSES WITHIN THE MEANING OF THE STATUTE AND
REGULATIONS. IN ADDITION, IT MAY BE STATED THAT THE BASIC PURPOSE OF
THE PER DIEM ALLOWANCE IS TO COMPENSATE MEMBERS FOR THEIR INCREASED
LIVING EXPENSES WHEN REQUIRED BY COMPETENT ORDERS TO SUBSIST THEMSELVES
AWAY FROM THEIR USUAL PLACES OF ABODE. SERGEANT MACEK APPARENTLY DID
NOT INCUR ANY ADDITIONAL COST BY REASON OF HIS TEMPORARY DUTY AT SAN
DIEGO. ON THE CONTRARY, IT WOULD APPEAR THAT HE INCURRED LESS EXPENSE
BY REASON OF SUCH TEMPORARY DUTY BECAUSE OF THE SHORTER DISTANCE OF
DAILY TRAVEL FROM HIS RESIDENCE TO HIS PLACE OF TEMPORARY DUTY IN SAN
DIEGO.
ACCORDINGLY, THE EXCEPTIONS IN QUESTION ARE PROPER AND COLLECTION OF
THE INDICATED OVERPAYMENTS SHOULD BE EFFECTED.
B-139778, JUL. 21, 1959
TO MRS. MATILDE BIDED AGASID:
REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 9, 1958, RECEIVED IN
THIS OFFICE ON MAY 21, 1959, BY REFERENCE FROM THE U.S. ARMY FINANCE
CENTER, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF NOVEMBER 14,
1958, WHICH PARTIALLY DISALLOWED YOUR CLAIM AS GUARDIAN OF YOUR HUSBAND,
SERGEANT MARCUS G. AGASID, FOR REIMBURSEMENT FOR TRAVEL EXPENSES
INCIDENT TO HIS DISABILITY RETIREMENT FROM THE MILITARY SERVICE.
THE RECORDS SHOW THAT SERGEANT AGASID WAS TRANSFERRED FROM LETTERMAN
ARMY HOSPITAL, SAN FRANCISCO, TO THE VETERANS ADMINISTRATION HOSPITAL,
LOS ANGELES, CALIFORNIA, ON JULY 24, 1951, AND THAT HE REMAINED AT THAT
HOSPITAL CONTINUOUSLY UNTIL SEPTEMBER 24, 1952. HE WAS PLACED ON THE
RETIRED LIST BECAUSE OF PHYSICAL DISABILITY ON AUGUST 31, 1951. AFTER A
DETERMINATION BY THE VETERANS ADMINISTRATION MEDICAL STAFF THAT SERGEANT
AGASID HAD ATTAINED MAXIMUM HOSPITAL BENEFIT HE WAS RELEASED ON
SEPTEMBER 24, 1952. THE RECORD SHOWS THAT SHORTLY THEREAFTER HE
TRAVELED TO SAN FRANCISCO VIA BUS AT HIS OWN EXPENSE AND ON APRIL 8,
1953, HE LEFT FOR MANILA, PHILIPPINE ISLANDS, BY COMMERCIAL STEAMSHIP
AND ARRIVED THERE ON MAY 2, 1953.
IN OUR SETTLEMENT DATED NOVEMBER 14, 1958, THE SUM OF $28.20 WAS
ALLOWED ON YOUR CLAIM BASED ON MILEAGE FROM THE VETERANS ADMINISTRATION
CENTER, LOS ANGELES, CALIFORNIA, TO SAN FRANCISCO, CALIFORNIA. THAT
PART OF YOUR CLAIM FOR REIMBURSEMENT OF SERGEANT AGASID'S TRAVEL FROM
SAN FRANCISCO TO MANILA, PHILIPPINE ISLANDS, WAS DISALLOWED ON THE BASIS
THAT GOVERNMENT TRANSPORTATION WAS AVAILABLE FROM SAN FRANCISCO TO
MANILA, PHILIPPINE ISLANDS, DURING THE PERIOD IN QUESTION.
IN YOUR LETTER OF DECEMBER 9, 1958, YOU STATE THAT AFTER SERGEANT
AGASID TRAVELED TO SAN FRANCISCO HE WAS PUT IN THE CUSTODY OF A SOCIAL
WORKER ASSOCIATED WITH THE VETERANS ADMINISTRATION AND THAT SERGEANT
AGASID'S FAILURE TO USE THE AVAILABLE GOVERNMENT TRANSPORTATION WAS DUE
TO THE FACT THAT THE SOCIAL WORKER WAS NOT AWARE OF THE AVAILABILITY OF
GOVERNMENT TRANSPORTATION, OR PREFERRED TRAVEL BY COMMERCIAL VESSEL.
YOU STATE THAT SERGEANT AGASID ACCEPTED ANY MEANS PRESENTED HIM FOR HIS
TRAVEL BECAUSE HE WAS MENTALLY INCOMPETENT AND UNABLE TO MAKE ANY
DECISIONS ON HIS OWN.
THE TRANSPORTATION OF MILITARY PERSONNEL IS GOVERNED BY SECTION 303
(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, AND BY
REGULATIONS PROMULGATED PURSUANT THERETO. ARMY REGULATION 55-117 DATED
JANUARY 23, 1951, SETS OUT THE POLICY GOVERNING PASSENGER TRAVEL TO,
FROM, AND BETWEEN AREAS BEYOND THE CONTINENTAL UNITED STATES AND
PROVIDES AS FOLLOWS:
"1. GENERAL--- A. THE POLICIES CONTAINED HEREIN GOVERN THE
TRANSPORTATION OF ALL PERSONS OF THE DEPARTMENT OF DEFENSE (MILITARY,
CIVILIAN EMPLOYEES, AND DEPENDENTS OF BOTH) TRAVELING AT GOVERNMENT
EXPENSE TO, FROM, AND BETWEEN AREAS BEYOND THE CONTINENTAL UNITED
STATES.
"C. IT IS INTENDED THAT GOVERNMENT TRANSPORTATION BE UTILIZED WHEN
IT IS AVAILABLE AND MEETS THE REQUIREMENTS OF THE SERVICES.
"2.C. WHEN IS THE ONLY GOVERNMENT TRANSPORTATION AVAILABLE * * * ALL
PERSONNEL WILL BE REQUIRED TO UTILIZE MSTS FACILITIES.'
A REPORT FURNISHED BY THE CHIEF OF TRANSPORTATION,DEPARTMENT OF THE
ARMY, STATES THAT MILITARY SEA TRANSPORTATION SERVICE VESSELS OPERATED
BETWEEN SAN FRANCISCO, CALIFORNIA, AND MANILA, AND THAT MILITARY AIR
TRANSPORTATION SERVICE AIRCRAFT OPERATED BETWEEN TRAVIS AIR FORCE BASE,
CALIFORNIA, AND CLARK AIR FORCE BASE, MANILA, DURING THE PERIOD IN
QUESTION. SUCH SERVICE WAS AVAILABLE FOR ALL ELIGIBLE PERSONNEL. YOUR
STATEMENT THAT SERGEANT AGASID WAS INCOMPETENT AT THE TIME THAT THE
TRAVEL TOOK PLACE IS NOT ESTABLISHED BY THE AVAILABLE RECORD. BUT EVEN
IF IT WERE TO BE ESTABLISHED THAT SERGEANT AGASID WAS INCOMPETENT AT
THAT TIME, THE ABOVE QUOTED REGULATION MAKES NO EXCEPTION IN SUCH CASES
AND THIS OFFICE WOULD NOT BE AUTHORIZED TO ALLOW YOUR CLAIM IN THE
ABSENCE OF A STATUTE OR REGULATION SO PROVIDING. FURTHERMORE, THE DUTY
OF COMPLYING WITH THE ABOVE REGULATION RESTS UPON THE TRAVELER, AND
RELIANCE UPON THE SOCIAL WORKER, IF SUCH WERE THE CASE, PROVIDES NO
BASIS FOR RELIEVING SERGEANT AGASID OF THAT DUTY.
ACCORDINGLY, SINCE IT IS CLEAR FROM THE RECORD THAT SERGEANT AGASID
FAILED TO UTILIZE AVAILABLE GOVERNMENT TRANSPORTATION THERE IS NO LEGAL
BASIS FOR REIMBURSEMENT FOR THE COST OF TRANSPORTATION PERFORMED BY
COMMERCIAL VESSEL AT PERSONAL EXPENSE. THE DISALLOWANCE OF YOUR CLAIM
WAS PROPER AND IS SUSTAINED.
B-140084, JUL. 21, 1959
TO MR. JAMES M. CARPENTER, CONTRACTING OFFICER, DEPARTMENT OF THE
INTERIOR:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 29, 1959, REQUESTING A
DECISION AS TO THE ACTION THAT SHOULD BE TAKEN WITH RESPECT TO AN ERROR
ALLEGED BY NEILSONS INCORPORATED, DOLORES, COLORADO, TO HAVE BEEN MADE
IN ITS BID ON PROJECT NO. RO 33-68, CONSTRUCTION OF WATER AND SEWER
SYSTEMS, HUINS AREA, MESA VERDE NATIONAL PARK, COLORADO.
THE RECORD SHOWS THAT THE BIDS WERE OPENED IN SANTA FE, NEW MEXICO,
AT 3:00 P.M. ON JUNE 19, 1959. IT IS REPORTED THAT FOUR BIDDERS WERE
PRESENT AT THE OPENING OF THE BIDS AND THAT ALTHOUGH MR. ARTHUR L.
NEILSON, VICE PRESIDENT OF NEILSONS INCORPORATED, DELIVERED HIS BID IN
PERSON ON JUNE 19, HE DID NOT REMAIN FOR THE OPENING. ON SATURDAY
MORNING, JUNE 20, MR. NEILSON TELEPHONED YOUR OFFICE AND IN THE ENSUING
CONVERSATION STATED THAT IN THE EVENT HE WAS THE LOW BIDDER ON THE MESA
VERDE PROJECT, HE HAD MADE A SERIOUS MISTAKE IN HIS BID. MR. NEILSON
WAS ADVISED THAT WHILE THE BID EVALUATION HAD NOT BEEN COMPLETED, HE
APPEARED TO BE THE LOW BIDDER. MR. NEILSON REQUESTED, IN THE EVENT HE
WAS FOUND TO BE LOW BIDDER, TO BE ADVISED WHAT STEPS HE COULD TAKE TO
RECTIFY HIS ERROR OR TO WITHDRAW HIS BID. HE EXPLAINED THAT IN
OBTAINING QUOTATIONS FROM SUPPLIERS BY TELEPHONE HE RECEIVED A QUOTATION
ON A DIFFERENT TYPE OF PIPE FROM THAT REQUIRED BY ITEMS 3 AND 7 OF THE
SPECIFICATIONS, AND THAT SUCH FACT WAS NOT DISCOVERED BY HIM UNTIL THAT
MORNING. MR. NEILSON WAS ADVISED THAT HE SHOULD SUBMIT IN WRITING A
STATEMENT EXPLAINING THE ALLEGED ERROR AND EVIDENCE IN SUPPORT THEREOF.
BY LETTERS OF JUNE 23 AND 24, 1959, MR. NEILSON EXPLAINED THE ERROR
AND SUBMITTED IN SUPPORT THEREOF HIS ORIGINAL ESTIMATE SHEETS AND TWO
WRITTEN QUOTATIONS FROM SUPPLIERS. MR. NEILSON REQUESTED PERMISSION TO
WITHDRAW HIS BID, OR TO ADJUST HIS BID TO $41,617.31 TO COMPENSATE FOR
THE ALLEGED ERROR.
A COMPARISON OF THE BID PRICES BETWEEN MR. NEILSON'S BID AND THE NEXT
LOW BID REFLECTS A CONSIDERABLE DIFFERENCE BETWEEN THE BID PRICES FOR
ITEMS 3 AND 7, PARTICULARLY THOSE FOR ITEM 7, $16,736.15 AS AGAINST
$25,720.82. MR. NEILSON'S AGGREGATE BID IS IN THE AMOUNT OF $31,463.41
AND THE TWO NEXT LOW AGGREGATE BIDS ARE IN THE AMOUNTS OF $44,703.78 AND
$46,748.97.
ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD THERE APPEARS NO
DOUBT THAT AN ERROR WAS MADE IN THE BID AS ALLEGED. HOWEVER, THE
EVIDENCE DOES NOT WARRANT CORRECTION OF THE BID, AS SUCH ACTION WOULD
AMOUNT TO PERMITTING THE BIDDER TO RECOMPUTE HIS BID WHICH IS NOT
PERMITTED AFTER BID OPENING. SEE 17 COMP. GEN. 575.
ACCORDINGLY, SINCE ERROR WAS ALLEGED AND EVIDENCE WAS SUBMITTED PRIOR
TO AWARD, WHICH REASONABLY ESTABLISHES THAT AN ERROR WAS, IN FACT, MADE,
THE BID OF NEILSONS INCORPORATED SHOULD BE DISREGARDED IN CONSIDERING
THE BIDS FOR AWARD.
THE PAPERS, WITH THE EXCEPTION OF THE LETTERS DATED JUNE 23 AND 24,
1959, AND THE ABSTRACT OF THE BIDS, ARE RETURNED.
B-140177, JUL. 21, 1959
TO MR. HUGH M. MILLER, CONTRACTING OFFICER, NATIONAL PARK SERVICE,
DEPARTMENT OF THE INTERIOR:
REFERENCE IS MADE TO YOUR LETTER OF JULY 9, 1959, WITH ENCLOSURES,
FILE REFERENCE D3415, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN
CONCERNING AN ERROR WHICH MR. CLYDE HUTCHESON, FLAGSTAFF, ARIZONA,
ALLEGES HE MADE IN HIS BID OPENED ON JUNE 23, 1959.
BY INVITATION DATED MAY 15, 1959, BIDS WERE REQUESTED FOR FURNISHING
MATERIALS AND FOR PERFORMING ALL WORK NECESSARY FOR THE CONSTRUCTION OF
A VISITOR CENTER AND A 3-UNIT APARTMENT HOUSE AT MONTEZUMA CASTLE
NATIONAL MONUMENT, CAMP VERDE, ARIZONA, PROJECT NO. MC-W-203. IN
RESPONSE MR. CLYDE HUTCHESON SUBMITTED A BID DATED JUNE 20, 1959,
OFFERING TO CONSTRUCT THE VISITOR CENTER FOR THE LUMP SUM OF $39,940 AND
TO CONSTRUCT THE APARTMENT HOUSE FOR THE LUMP SUM OF $26,270. THE
ABSTRACT OF BIDS SHOWS THAT THE TWO OTHER BIDDERS ON THE VISITOR CENTER
QUOTED PRICES OF $67,258 AND $73,750.
YOU STATE THAT ON JUNE 29, 1959, MR. HUTCHESON ADVISED YOUR OFFICE BY
TELEPHONE THAT AN ERROR IN ADDITION HAD BEEN MADE ON HIS WORKSHEET FOR
THE VISITOR CENTER AND THAT MR. HUTCHESON WAS ADVISED TO SUBMIT A
STATEMENT EXPLAINING THE ERROR AND HIS ORIGINAL WORKSHEETS.
IN A CONFIRMING TELEGRAM DATED JUNE 29, 1959, MR. HUTCHESON STATED
THAT HIS BID PRICE FOR THE VISITOR CENTER HAD BEEN UNDERSTATED BY
$10,000 AND THAT HE WOULD BE WILLING TO SIGN THE CONTRACT PAPERS ON THE
BASIS OF THE CORRECT BID PRICE OF $49,940. BY LETTER DATED JULY 2,
1959, MR. HUTCHESON SUBMITTED HIS WORKSHEET, WHICH SHOWS VARIOUS ITEMS
OF COST AND THE TOTAL OF THOSE ITEMS IS SHOWN AS $39,940. MR.
HUTCHESON'S ORIGINAL BID PRICE. THE CORRECT TOTAL FOR THESE ITEMS IS
$49.940.
ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD, THERE APPEARS NO
DOUBT THAT MR. HUTCHESON MADE AN ERROR IN HIS BID, AS ALLEGED, AND IT IS
APPARENT THAT THE INTENDED BID PRICE FOR THE VISITOR CENTER WAS $49,940,
WHICH AMOUNT IS STILL LOWER THAN THE NEXT LOWEST BID RECEIVED ON THAT
PROJECT. ACCORDINGLY, THE BID OF MR. CLYDE HUTCHESON MAY BE CORRECTED
TO PROVIDE FOR A PRICE OF $49,940 FOR THE VISITOR CENTER, AND THE BID,
AS SO CORRECTED, MAY BE CONSIDERED WITH THE OTHER BIDS IN MAKING THE
AWARD.
IN THE EVENT OF AWARD OF THE VISITOR CENTER TO MR. HUTCHESON, A
REFERENCE TO THIS DECISION SHOULD BE MADE ON THE CONTRACT.
B-138418, JUL. 20, 1959
TO THE GLEDHILL ROAD MACHINERY CO. . *
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 9, 1959,
PROTESTING THE REJECTION OF YOUR LOW BID SUBMITTED PURSUANT TO ITEMS 1
AND 2 OF INVITATION NO. 30-601-59-25, ISSUED NOVEMBER 5, 1958, AT
MITCHEL AIR FORCE BASE.
THE ITEMS OF THE INVITATION CALLED FOR 9 SNOW PLOWS DESCRIBED AS
"GOOD ROADS MODEL NO. 721 OR EQUAL.' AT BID OPENING ON NOVEMBER 24,
1958, THE THREE LOW BIDS WERE FOUND TO BE AS FOLLOWS:
TABLE
BIDDER PRICE PER UNIT PRODUCT OFFERED 1. THE
MACHINERY
CO. $744.80 GLEDHILL MODEL
11HTRW-BA 2. H. O. PENN MACHINERY CO.,
INC. 1,022.90 DO 3. ANDERSON ENGINEERING CO. 1
T-482
IT IS REPORTED BY THE ADMINISTRATIVE AGENCY THAT THE TWO LOW BIDS
WERE REJECTED BECAUSE THE PRODUCT OFFERED WAS DEEMED NOT TO MEET THE
SPECIFICATIONS IN THE FOLLOWING RESPECTS:
"A. THE TRIP ASSEMBLY IS UNSHIELDED WHICH COULD POSSIBLY CAUSE
JAMMING FROM FREEZING ICE AND SNOW.
"B. THERE IS NO LANDSIDE PLATE ON THE SMALL END OF PLOW, WHICH IN
THE OPINION OF THE EVALUATORS, IS A STRUCTURAL WEAKNESS.
"C. THE REVERSING FRAME IS OF A TRIANGULAR TYPE WHICH IS NOT AS
STRONG AS THE SEMI-CIRCLE TYPE CONSTRUCTION.
"D. THERE ARE ONLY SIX (6) VERTICAL REINFORCING MEMBERS, OR RIBS,
WHEREAS THE GOOD ROADS AND THE ANDERSON MODELS HAVE SEVEN (7).'
THE THIRD LOW BID WAS FOUND TO BE IN CONFORMITY WITH THE
SPECIFICATIONS AND AWARD WAS THEREFORE MADE TO THE ANDERSON ENGINEERING
CO. ON DECEMBER 3, 1958. WE ARE ADVISED THAT THE EQUIPMENT HAS BEEN
DELIVERED, ACCEPTED, AND PAID FOR.
IN YOUR LETTER OF JANUARY 9, 1959, YOU RESPOND TO THE POINTS RAISED
AS TO THE ALLEGED FAILURE OF YOUR PRODUCT TO CONFORM TO THE
SPECIFICATION REQUIREMENTS AS FOLLOWS:
1. GOOD ROADS MODEL NO. 721 USES A COMPRESSION SPRING TO ACCOMPLISH
THE TRIPPING ACTION WHILE YOUR PRODUCT USES EXTENSION SPRINGS. ALTHOUGH
SHIELDING OF THE COMPRESSION SPRING IS NECESSARY TO KEEP THE PLOW
OPERATIONAL, YOU CONTEND THAT THERE IS NO SIMILAR NECESSITY FOR
SHIELDING AN EXTENSION SPRING.
2. YOU STATE THAT THE LACK OF A LANDSIDE PLATE ON THE SMALL END OF
THE PLOW IS NOT A WEAKNESS, SINCE THE SMALL END OF THE MOLDBOARD IS
OTHERWISE AMPLY BRACED, AND UNDER THE CIRCUMSTANCES THE ABSENCE OF A
LANDSIDE PLATE IS ACTUALLY AN ASSET.
3. YOU STATE THAT THE TRIANGULAR TYPE REVERSING FRAME USED IN YOUR
PRODUCT IS STRONGER THAN THE SEMI-CIRCLE TYPE.
4. YOU STATE THAT YOUR PRODUCT HAS THE SAME NUMBER OF VERTICAL RIBS
AS GOOD ROADS MODEL NO. 721 AND THAT CONFUSION PERHAPS ARISES FROM THE
METHOD OF COUNTING.
WITH RESPECT AT LEAST TO THE FIRST THREE ITEMS THERE APPEARS TO BE NO
CONTROVERSY AS TO THE FACTS (THAT YOUR PRODUCT HAS AN UNSHIELDED SPRING,
HAS NO LANDSIDE PLATE AND USES THE TRIANGULAR TYPE REVERSING FRAME
WHEREAS THE MODEL CITED IN THE SPECIFICATIONS AND THAT OFFERED IN THE
ACCEPTED BID HAVE SHIELDED SPRINGS, LANDSIDE PLATES AND EMPLOY
SEMI-CIRCLE TYPE CONSTRUCTION ON THE REVERSING FRAME) BUT ONLY AS TO THE
CONCLUSIONS TO BE DRAWN FROM THOSE FACTS.
THE ESTABLISHMENT OF THE GOVERNMENT'S ACTUAL REQUIREMENTS AND THE
DETERMINATION AS TO WHETHER ARTICLES OFFERED CONFORM THERETO ARE
PRIMARILY WITHIN THE PROVINCE OF THE ADMINISTRATIVE AGENCY, IN THIS CASE
THE DEPARTMENT OF THE AIR FORCE. 17 COMP. GEN. 554. DIFFERENCES MAY
ARISE AS TO THE DESIRABILITY OF ONE TYPE OF PRODUCT AS OPPOSED TO
ANOTHER. HOWEVER, WE CANNOT INTERFERE WITH THE ADMINISTRATIVE
CONCLUSIONS IN THE ABSENCE OF A FINDING THAT THE DEVELOPMENT AND
APPLICATION OF THE SPECIFICATIONS DID NOT REPRESENT BONA FIDE
DETERMINATIONS BY THE ADMINISTRATIVE OFFICERS CONCERNED. SINCE SUCH
LACK OF BONA FIDES HAS NEITHER BEEN SHOWN NOR EVEN ALLEGED, THERE EXISTS
NO BASIS UPON WHICH WE MAY INTERFERE WITH THE ADMINISTRATIVE ACTION
TAKEN.
B-139593, JUL. 20, 1959
TO THE SECRETARY OF HEALTH, EDUCATION AND WELFARE:
REFERENCE IS MADE TO YOUR LETTER DATED MAY 8, 1959, AND ENCLOSURES,
RELATIVE TO THE PROTEST OF THE SHAMPAINE ELECTRIC COMPANY, INC., TO THE
AWARD OF A CONTRACT BY YOUR DEPARTMENT TO THE AMERICAN STERILIZER
COMPANY UNDER INVITATION NO. 261-12-3-58.
BY INVITATION NO. 261-12-3-58, DATED NOVEMBER 18, 1958, THE
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, PUBLIC HEALTH SERVICE,
NATIONAL INSTITUTES OF HEALTH, BETHESDA, MARYLAND, REQUESTED BIDS FOR
THE FURNISHING OF A CYLINDRICAL STERILIZER. PARAGRAPH 1 OF THE DETAILED
SPECIFICATIONS PROVIDED THAT ALL DETAILS OF DESIGN, CONSTRUCTION AND
TESTING SHOULD CONFORM TO STANDARDS ADOPTED BY THE AMERICAN SOCIETY
MECHANICAL ENGINEERS' LATEST CODE FOR UNFIRED PRESSURE VESSELS. MORE
IMPORTANT, PARAGRAPH 6 OF THE SPECIFICATIONS PROVIDED THAT THE
STERILIZING FUNCTIONS OF THE STERILIZER SHOULD BE CONTROLLED BY A SINGLE
TOP OPERATING VALVE OF THE MULTI-PORT TYPE. IT APPEARS THAT THE
AMERICAN STERILIZER COMPANY WAS THE ONLY BIDDER WHO OFFERED TO FURNISH A
STERILIZER WITH A SINGLE TOP OPERATING VALUE AS REQUIRED BY THE
SPECIFICATIONS. THE SHAMPAINE ELECTRIC COMPANY, INC., WHO SUBMITTED THE
LOW BID, OFFERED TO FURNISH A STERILIZER WITH A TWO VALVE ARRANGEMENT.
THE PROTEST OF THE SHAMPAINE ELECTRIC COMPANY, INC., IS BASED ON THE
CONTENTIONS THAT (A) THE TWO VALVE ARRANGEMENT AND ALTERNATE PRESSURE
CONTROL OFFERED IN THEIR PROPOSAL ARE EQUAL TO THE SINGLE TOP OPERATED
MULTI-PORT VALVE AND THE TYPE OF STEAM PRESSURE REGULATOR VALVE
SPECIFIED IN THE INVITATION; THAT (B) OTHER FEDERAL AGENCIES HAVE
ACCEPTED EITHER ARRANGEMENT AS EQUAL AND THAT (C) THE STERILIZER OFFERED
BY THE COMPANY DID CONFORM TO THE STANDARDS ADOPTED BY THE AMERICAN
SOCIETY MECHANICAL ENGINEERS' CODE.
YOU STATED IN YOUR LETTER OF MAY 8, 1959, THAT WHILE THE PROPOSAL OF
THE PROTESTANT FURTHER DEVIATED FROM THICKNESSES OF CHAMBER SHELL,
JACKET SHELL, AND BACKHEAD SPECIFIED IN THE INVITATION, THE STERILIZER
OFFERED DID COMPLY WITH THE AMERICAN SOCIETY MECHANICAL ENGINEERS' CODE
IN DESIGN, FABRICATION, INSPECTION, AND TESTING AND THAT YOUR DEPARTMENT
WOULD NOT HAVE REJECTED THE COMPANY'S BID FOR THESE REASONS ALONE.
OUR OFFICE HAS CONSISTENTLY HELD THAT THE RESPONSIBILITY FOR DRAFTING
PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND FOR
DETERMINING FACTUALLY WHETHER ARTICLES OFFERED BY BIDDERS MEET THOSE
SPECIFICATIONS IS PRIMARILY FOR ADMINISTRATIVE AGENCIES. 17 COMP. GEN.
554. WHILE IT IS THE DUTY OF OUR OFFICE TO DETERMINE WHETHER
SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE OF COMPETITION, 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. THERE IS NO REQUIREMENT
THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED
AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS
TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF
ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE
OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE
CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEED.
THE SPECIFICATIONS IN THE INSTANT CASE MAY HAVE BEEN DRAWN AROUND THE
EQUIPMENT OF A PARTICULAR MANUFACTURER; HOWEVER, YOU STATED THAT YOUR
TECHNICAL RESEARCH STAFF HAS ESTABLISHED FROM ACTUAL EXPERIENCE THAT THE
OPERATIONAL CHARACTERISTICS OF THE STERILIZER MANUFACTURED BY THE
AMERICAN STERILIZER COMPANY HAVE, IN THEIR OPINION, DECIDED ADVANTAGES
OPERATIONALLY AND MAINTENANCE-WISE OVER THE STERILIZER OFFERED BY THE
PROTESTANT. FURTHER, IT IS STATED THAT THE SPECIFIED SYSTEMS ARE NOT
PATENTED AND ARE THEREFORE AVAILABLE FOR USE BY ANY MANUFACTURER.
IN THE CIRCUMSTANCES, OUR OFFICE IS NOT REQUIRED TO OBJECT TO THE
AWARD OF A CONTRACT TO THE AMERICAN STERILIZER COMPANY.
B-139770, JUL. 20, 1959
TO MR. W. R. WILSON, AUTHORIZED CERTIFYING OFFICER, OFFICE OF CIVIL
AND DEFENSE MOBILIZATION:
YOUR LETTER OF MAY 29, 1959, SUBMITS TWO VOUCHERS, ONE FOR $245.10,
THE OTHER FOR $159.50, IN FAVOR OF BENJAMIN CAPLAN, COVERING PER DIEM,
TRANSPORTATION, AND OTHER TRAVEL EXPENSES FOR THE PERIOD MARCH 16 TO
APRIL 10, 1959, AS A WHEN-ACTUALLY-EMPLOYED (WAE) CONSULTANT. YOU ASK
WHETHER THOSE VOUCHERS MAY BE CERTIFIED FOR PAYMENT UNDER THE FACTS AND
CIRCUMSTANCES HEREINAFTER RELATED.
THE RECORD SHOWS MR. CAPLAN RECEIVED AN EXCEPTED APPOINTMENT JANUARY
2, 1958, AS A WAE CONSULTANT NOT TO EXCEED JULY 1, 1958, AT A PER DIEM
SALARY OF $50 WHEN ACTUALLY EMPLOYED WITH HEADQUARTERS, WASHINGTON, D.C.
ON JULY 2, 1958, THAT APPOINTMENT WAS EXTENDED TO JANUARY 1, 1959. WE
HAVE RECEIVED INFORMATION BY TELEPHONE THAT MR. CAPLAN WORKED ONLY TWO
DAYS, NAMELY, JANUARY 2 AND 3, 1958, DURING THE FOREGOING PERIOD. THE
RECORD ALSO SHOWS THAT HIS APPOINTMENT WAS EXTENDED ON JANUARY 2 TO JULY
1, 1959, AND WE UNDERSTAND HE WORKED ONLY FROM MARCH 16 TO APRIL 10,
1959, THE PERIOD COVERED BY THE SUBMITTED VOUCHERS. ON APRIL 13, 1959,
HE WAS REINSTATED TO A CAREER POSITION AS INTERNATIONAL ECONOMIST, GRADE
GS-15, $13,970 PER ANNUM, TOP STEP OF THE GRADE, BASED UPON PRIOR
SERVICE IN GRADE GS-16, TOP STEP OF THE GRADE. FURTHER, THE RECORD
SHOWS THAT TRAVEL ORDERS, THROUGH ADMINISTRATIVE MISUNDERSTANDING OR
OVERSIGHT, WERE NOT ISSUED COVERING THE PERIOD MARCH 16 THROUGH 29,
1959, BUT THAT ADMINISTRATIVE ACTION HAS BEEN TAKEN TO APPROVE THE
TRAVEL EXPENSES FOR THAT PERIOD. SECTION 2.1, STANDARDIZED GOVERNMENT
TRAVEL REGULATIONS. TRAVEL AUTHORIZATION NO. 3204, DATED MARCH 20,
1959, COVERS THE PERIOD FROM MARCH 30 TO MAY 1, 1959.
YOU SAY THAT YOU UNDERSTAND PAYMENT OF A PER DIEM ALLOWANCE TO A
CONSULTANT WHILE AWAY FROM HIS HOME OR REGULAR PLACE OF BUSINESS IS
CONTINGENT UPON THE INTERMITTENT NATURE OF HIS EMPLOYMENT. YOU REFER TO
OUR DECISION, 35 COMP. GEN. 90, WHEREIN WE SO HELD. IN THAT DECISION
YOU WILL NOTE WE WERE CONCERNED WITH CONSULTANTS WHOSE TRAVEL EXPENSES
WERE PAYABLE UNDER SECTION 5, PUBLIC LAW 600, 5 U.S.C. 73B-2. MR.
CAPLAN WAS EMPLOYED UNDER EXECUTIVE ORDER NO. 10647, SECTION 101 (B),
WHICH RELATES TO SUBSECTION 710 (C) OF THE DEFENSE PRODUCTION ACT, 50
U.S.C., APP. 2160 (C). THEREUNDER, TRANSPORTATION AND PER DIEM ARE NOT
LIMITED TO "INTERMITTENT" EMPLOYMENT AS IN THE CASE UNDER 5 U.S.C.
73B-2. HENCE, OUR DECISION 35 COMP. GEN. 90 HAS NO APPLICATION HERE.
HOWEVER, THE RECORD CONTAINS THE FOLLOWING PERTINENT INFORMATION:
"* * * ON JANUARY 5, 1959, THIS OFFICE SUBMITTED A FORM 52 REQUESTING
MR. CAPLAN'S APPOINTMENT AS FULL TIME SENIOR PLANNING OFFICER. DUE TO
THE EXTREMELY HEAVY WORKLOAD IN ADMINISTRATION RESULTING FROM THE
CONSOLIDATION OF THE TWO AGENCIES WE WERE NOT ABLE TO OFFER MR. CAPLAN
AN APPOINTMENT UNTIL THE 10TH OF MARCH. FOR PERSONAL AND BUSINESS
REASONS HE REQUESTED THAT THE APPOINTMENT NOT BE MADE EFFECTIVE UNTIL
THE MIDDLE OF APRIL.
"BECAUSE OF URGENT GOVERNMENT PROBLEMS REQUIRING THE SERVICES OF A
TOP FLIGHT ECONOMIST, WE URGED HIM TO WORK OUT AN ARRANGEMENT WHEREBY HE
COULD BEGIN TO PROVIDE US WITH STAFF ASSISTANCE AT AN EARLIER DATE. THE
OCDM URGENTLY NEEDED HIS SERVICES TO ASSIST IN THE DEVELOPMENT OF AN
OVER-ALL ANALYSIS OF THE ECONOMIC IMPACT OF NATIONAL SECURITY PROGRAMS
IN TIME FOR THE ANNUAL REVIEW OF BASIC NATIONAL SECURITY POLICY WHICH
BEGAN IN MARCH. HIS SERVICES WERE ALSO REQUIRED FOR THE ANALYSIS OF
IMPACT OF AGENCY PROGRAMS ON PRICES AND COSTS IN CONNECTION WITH THE
COMMITTEE ON GOVERNMENT ACTIVITIES AFFECTING PRICES AND COSTS HEADED BY
THE CHAIRMAN OF THE COUNCIL OF ECONOMIC ADVISERS. THERE WERE ALSO A
NUMBER OF OTHER URGENT ECONOMIC QUESTIONS BEFORE THE COUNCIL ON FOREIGN
ECONOMIC POLICY ON WHICH OCDM WISHED TO HAVE HIS ADVICE. WE RECOGNIZED
THAT, IF HIS SERVICES WERE TO BE AVAILABLE IMMEDIATELY, IT WOULD BE
NECESSARY FOR HIM TO RETURN TO NEW YORK FROM TIME TO TIME FOR A BRIEF
PERIOD.
"THEREFORE, AT OUR REQUEST AND IN THE BEST INTERESTS OF THE
GOVERNMENT, HE AGREED TO SERVE ON A WAE BASIS UNTIL APRIL 13 AT WHICH
TIME, IT WAS AGREED, HIS PERMANENT APPOINTMENT SHOULD BECOME EFFECTIVE.'
IT IS EVIDENT FROM THE FOREGOING QUOTATION THAT THE CONSULTANT'S WORK
HAD GROWN TO A FULL TIME POSITION. NOTHING FURNISHED SHOWS WHETHER THE
WORK HE PERFORMED AS A WAE DURING THE PERIOD NOW IN QUESTION WAS
DIFFERENT FROM THE WORK PERFORMED AS A FULL TIME EMPLOYEE. FURTHER, THE
RECORD SHOWS THAT FROM MARCH 16, 1959, HE WORKED FULL TIME--- EIGHT
HOURS PER DAY, FIVE DAYS A WEEK--- AND THE TRAVEL INVOLVED WAS PERFORMED
ON WEEK ENDS. BASED UPON THE PRESENT RECORD THE DELAYING OF A FORMAL
PROCESSING OF THE FULL TIME APPOINTMENT PAPERS STRONGLY SUGGESTS THAT
SUCH DELAY WAS TO PERMIT OR SECURE THE PAYMENT OF TRAVEL EXPENSES.
THEREFORE, UPON THE PRESENT RECORD, NO PROPER BASIS EXISTS FOR
AUTHORIZING PAYMENT OF THE VOUCHERS.
B-139843, JUL. 20, 1959
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO LETTER OF JUNE 4, 1959, WITH ENCLOSURES, FROM
THE ASSISTANT SECRETARY OF THE ARMY (MANPOWER, PERSONNEL AND RESERVE
FORCES), REQUESTING A DECISION AS TO WHETHER ANY OR ALL OF THE ITEMS OF
THE CLAIM OF THE OREGON, PACIFIC AND EASTERN RAILWAY COMPANY FOR
EXTRAORDINARY MAINTENANCE OF 7 1/2 MILES OF RELOCATED TRACKS, PROVIDED
FOR BY THE COMPANY UNDER CONTRACT W698ENG-1847, DATED JULY 2, 1941, MAY
BE ALLOWED.
IT IS STATED THAT THE CLAIM HAS BEEN CONSIDERED UNDER SECTION 9 OF
THE FLOOD CONTROL ACT OF 1946, 33 U.S.C. 701 (Q), WHICH IS IN THE NATURE
OF AN EQUITABLE STATUTE, AND THAT THE CHIEF OF ENGINEERS HAS NOT FOUND
THAT THE DAMAGES ARE THE RESULT OF OPERATION OF THE PROJECT,
PREREQUISITE FOR RELIEF UNDER THIS STATUTE.
THE DISTRICT ENGINEER, THE CONTRACTING OFFICER, RECOMMENDED THAT NO
ACTION BE TAKEN WITH RESPECT TO ITEM 1 OF PART I, BUT THAT CASH
SETTLEMENTS BE EFFECTED WITH RESPECT TO ITEMS 2 AND 3 THEREOF. ALSO, HE
RECOMMENDED ALLOWANCE OF ALL OF THE ITEMS, TOTALING $94,837.04, IN PART
II OF THE CLAIM. IT IS STATED, HOWEVER, THAT THE CHIEF OF ENGINEERS
DOES NOT OCCUR IN ALL OF THE RECOMMENDATIONS OF THE CONTRACTING OFFICER.
SPECIFICALLY, HE PROPOSES DISALLOWANCE OF ITEMS 2, 5, AND 6 OF PART II
OF THE CLAIM.
AT THE TIME NEGOTIATIONS WERE ENTERED INTO WITH THE CLAIMANT FOR THE
RELOCATION OF THE RAILROAD, WHICH WAS USED FOR HAULING TIMBER, IT HAD AN
OVERALL LENGTH OF 20 MILES. ORIGINALLY, AN ATTEMPT WAS MADE TO OBTAIN
CLAIMANT'S CONSENT FOR ABANDONMENT, BUT CLAIMANT REFUSED AND REQUESTED
NEGOTIATIONS ON THE BASIS OF A LIFE EXPECTANCY OF FROM 10 TO 30 YEARS
FOR THE RAILROAD. A PAYMENT OF $20,160 TO THE RAILROAD WAS MUTUALLY
AGREED UPON FOR INCREASED OPERATION AND MAINTENANCE BASED ON AN
OPERATING LIFE OF 20 YEARS. THIS PAYMENT WAS BASED UPON EXTRA FUEL,
EQUIPMENT, AND RIGHT-OF-WAY MAINTENANCE CONSIDERED TO BE REQUIRED FOR
THE ADDITIONAL 1.12 MILES OF LINE AND THE INCREASED GRADE AND CURVATURE.
FROM THIS AMOUNT, HOWEVER, THERE WAS DEDUCTED AN AMOUNT ESTIMATED BY
THE GOVERNMENT AS SAVINGS IN REPLACEMENT OF BALLAST STRUCTURES AND
RIGHT-OF-WAY FENCES, WHICH REDUCED THE PROPOSED PAYMENT TO THE RAILROAD
TO THE NET AMOUNT OF $3,768, WHICH WAS AGREED TO BY THE RAILROAD AND
INCORPORATED IN THE CONTRACT.
THE CITED CONTRACT PROVIDED FOR RELOCATION OF THE RAILROAD PURSUANT
TO PLANS AND SPECIFICATIONS APPROVED IN ADVANCE BY THE COMPANY. THE
CONTRACT, AMONG OTHER THINGS, OBLIGATED THE GOVERNMENT TO CONSTRUCT THE
RELOCATED SECTION IN ACCORDANCE WITH SUCH PLANS AND SPECIFICATIONS AND
TO CONVEY SAME TO THE RAILROAD READY FOR OPERATION; TO PAY THE
RAILROAD, UPON ACCEPTANCE OF THE RELOCATED LINE, A CAPITALIZED SUM OF
$3,768 FOR EXCESS OPERATION AND MAINTENANCE COSTS AS INDICATED ABOVE,
TOGETHER WITH A MONTHLY PAYMENT OF $250 TO THE RAILROAD DURING
CONSTRUCTION AS COMPENSATION FOR ENGINEERING, INSPECTION, LEGAL, AND
ADMINISTRATIVE EXPENSES, THE AGGREGATE PAYMENT FOR THESE EXPENSES,
HOWEVER, NOT TO EXCEED $3,000.
ARTICLE III (B) OF THE CONTRACT OBLIGATED THE COMPANY UPON COMPLETION
OF THE RELOCATED SECTION TO PERMIT CONNECTION OF SAME WITH THE EXISTING
TRACKS AND THEREAFTER TO OPERATE ITS TRAINS OVER THE RELOCATED LINE AND
TO MAINTAIN SAME; PROVIDED, HOWEVER, THAT---
"* * * BEFORE THE RELOCATED LINE IS ACCEPTED BY THE RAILROAD FOR
OPERATION AND MAINTENANCE A DETAILED INSPECTION SHALL BE MADE JOINTLY BY
REPRESENTATIVES OF THE GOVERNMENT AND THE RAILROAD FOR THE PURPOSE OF
DETERMINING WHETHER OR NOT THE RELOCATED LINE HAS BEEN COMPLETED IN
ACCORDANCE WITH THE PLANS AND SPECIFICATIONS. IF THIS INSPECTION
DEVELOPS THAT THE LINE HAS BEEN SO COMPLETED, IT SHALL BE ACCEPTED
FORTHWITH BY THE RAILROAD IN WRITING. IF THIS INSPECTION DEVELOPS THAT
ANY OF THE WORK HAS NOT BEEN COMPLETED IN ACCORDANCE WITH THE PLANS AND
SPECIFICATIONS IT SHALL BE DETERMINED WHAT ITEMS OF WORK STILL REMAIN TO
BE DONE OR TO BE CORRECTED, AND SUCH WORK SHALL THEREAFTER BE DONE BY
THE GOVERNMENT AT ITS SOLE COST AND EXPENSE, WHEREUPON THE RAILROAD
SHALL ACCEPT THE RELOCATED LINE FOR OPERATION AND MAINTENANCE.'
ARTICLE V OF THE CONTRACT PROVIDED THAT:
"IN CONSIDERATION OF THE PAYMENTS AND THE FULFILLMENT OF THE MUTUAL
COVENANTS HEREIN SET FORTH THE RAILROAD DOES HEREBY RELEASE AND FOREVER
DISCHARGE THE GOVERNMENT FROM ANY AND ALL CLAIMS OR DEMANDS FOR DAMAGES
TO OR CAUSES OF ACTION OF EVERY KIND RELATING TO ITS PROPERTIES INVOLVED
HEREIN AND THE USE THEREOF WHICH MAY BE CAUSED BY THE CONSTRUCTION,
OPERATION OR MAINTENANCE OF THE AFORESAID DORENA DAM AND RESERVOIR,
AND/OR FROM ANY AND ALL CLAIMS AND DEMANDS FOR DAMAGES OR CAUSES OF
ACTION ARISING OUT OF THE CHANGES AND RELOCATION OF THE RAILROAD'S
FACILITIES HEREIN PROVIDED FOR.'
ON AUGUST 28, 1942, CONSTRUCTION OF THE RELOCATED LINE WAS
INTERRUPTED BECAUSE OF THE WAR EMERGENCY. WORK WAS RESUMED IN 1946 AND
WAS COMPLETED ON AUGUST 4, 1947, WHEN THE RAILROAD STARTED OPERATING THE
RELOCATED LINE. PRIOR THERETO THE RESIDENT ENGINEER AND REPRESENTATIVES
OF THE RAILROAD INSPECTED THE RELOCATED LINE ON JULY 30, 1947. THE
COMPANY DID NOT THEN ACCEPT THE RELOCATED LINE IN WRITING AS PROVIDED IN
THE CONTRACT.
BY LETTER DATED AUGUST 1, 1947, THE ATTORNEY FOR THE COMPANY
REQUESTED THE DISTRICT ENGINEER TO ENTER INTO A SUPPLEMENTAL AGREEMENT
UNDER WHICH THE GOVERNMENT WOULD ASSUME LIABILITY FOR EXTRAORDINARY
MAINTENANCE FOR A PERIOD OF ONE YEAR AFTER THE FILLING OF THE RESERVOIR.
THIS REQUEST WAS REFUSED IN REPLY OF AUGUST 7, 1947, WHEREIN IT WAS
POINTED OUT THAT THE RAILROAD WAS RESPONSIBLE FOR ORDINARY MAINTENANCE
AND ORDINARY SLIDES. THE ATTORNEY WAS INFORMED, HOWEVER, THAT IN THE
EVENT A MAJOR SLIDE SHOULD OCCUR DURING THE FIRST YEAR OF OPERATION OF
THE RESERVOIR A CORRECTION WOULD BE CONSIDERED BY APPLICATION OF SECTION
9 OF THE FLOOD CONTROL ACT OF 1946, 33 U.S.C. 701Q.
THE FIRST FILLING OF THE RESERVOIR OCCURRED ON MAY 27, 1950, WHEN THE
POOL WAS FILLED TO AN ELEVATION OF 832.3, AND IT IS REPORTED THAT THE
SPILLWAY AT ELEVATION 835 HAS NEVER BEEN OVERTOPPED EXCEPT DURING THE
FLOOD OF DECEMBER 1955. IN THE MEANTIME, EFFORTS WERE MADE TO DISCHARGE
THE GOVERNMENT'S OBLIGATION TO THE RAILROAD BY PAYMENT OF THE BALANCE
DUE UNDER THE CONTRACT WHICH COULD NOT BE DONE UNTIL WRITTEN ACCEPTANCE
OF THE RELOCATED LINE AS REQUIRED BY THE CONTRACT. IN A CONFERENCE HELD
ON SEPTEMBER 11, 1951, IN THE OFFICE OF THE DISTRICT ENGINEER, THE
REPRESENTATIVES OF THE RAILROAD SUBMITTED CLAIMS FOR ADDITIONAL
OPERATION AND MAINTENANCE COSTS AND, APPARENTLY, RENEWED THE COMPANY'S
REQUEST FOR AMENDING THE CONTRACT FOR THAT PURPOSE. BY LETTER OF THE
SAME DATE, HOWEVER, THE RAILROAD'S ATTORNEY WAS INFORMED THAT THE
CONTRACT WAS ENTERED INTO AFTER EXTENSIVE STUDIES AND NEGOTIATIONS AND
THAT, THEREFORE, THE COMPANY'S REQUEST COULD NOT BE GRANTED. IN URGING
FORMAL ACCEPTANCE OF THE RELOCATED LINE WITH DISTRICT ENGINEER'S OFFICE
INFORMED THE ATTORNEY THAT, NOTWITHSTANDING THE PROVISIONS OF THE
CONTRACT AND THE ACCEPTANCE IN WRITING AS THEREIN REQUIRED, THAT OFFICE
WOULD CONSIDER "ANY CLAIMS FOR EXCESSIVE OPERATION AND MAINTENANCE
COSTS, NOT PREVIOUSLY ANTICIPATED OR PROVIDED FOR, UNDER THE PROVISIONS
OF SECTION 9 OF THE FLOOD CONTROL ACT OF 1946, A COPY OF WHICH IS
ATTACHED.' A WRITTEN ACCEPTANCE WAS EXECUTED BY THE RAILROAD OF
SEPTEMBER 28, 1951, ACKNOWLEDGING THAT THE RELOCATED LINE HAD NOT BEEN
COMPLETED BY THE GOVERNMENT IN A SATISFACTORY AND ACCEPTABLE MANNER.
BY LETTER DATED SEPTEMBER 10, 1956, THE RAILROAD FILED A CLAIM FOR
$94,837.04. THE CLAIM AS OUTLINED IN THE RECOMMENDATIONS OF THE OFFICE
OF THE DISTRICT ENGINEERS IS AS FOLLOWS:
TABLE
RECOMMENDED PART ITEM
RAILWAY CLAIM GOVERNMENT ACTION
I CERRO GORDO CUT DEFERRED CONSTRUCTION NONE
REQUIRED
SLIDE AREA AT M.P. DEFERRED CONSTRUCTION CASH SETTLEMENT.
5.5 REQUIRED
AREA AT AXIS OF DAM DEFERRED CONSTRUCTION
REQUIRED CASH SETTLEMENT. II EXTRAORDINARY MTNCE
$30,666.32 ASSUME PAYMENT
REPLACEMENT OF
PASSING AND SIDE
TRACKS 29,409.50 DO DO
LOSS OF PRESENT SIDE
TRACK 8,482.22 DO DO
COST OF RAIL ANCHORS 6,292.00 DO DO
LEGAL AND ENGINEERING
FEES 2,595.00 DO DO
BETTERMENTS CLAIMED BY
GOVERNMENT 17,392.00 DO DO
----------------- ---------------
PART II TOTALS $94,837.04 $93,837.04
PART II OF THE CLAIM REPRESENTS WORK ALREADY PERFORMED BY THE
RAILROAD WHICH IT IS BELIEVED SHOULD HAVE BEEN INCLUDED IN THE CONTRACT
UNDER THE HEADING OF DEFERRED MAINTENANCE. PART I OF THE CLAIM CONSISTS
OF CORRECTIVE AND REMEDIAL MEASURES TO BE TAKEN TO PREVENT FURTHER
DAMAGE.
TO AUTHORIZE THE CORRECTIVE WORK UNDER PART I OF THE CLAIM AND TO
AUTHORIZE ALLOWANCE OF ANY OR ALL OF THE WORK UNDER PART II OF THE CLAIM
FOR WHICH THE RAILROAD IS SEEKING REIMBURSEMENT WOULD, IN EFFECT,
REQUIRE A REFORMATION OR RENEGOTIATION OF THE RELOCATION CONTRACT,
NOTWITHSTANDING THAT THE CONTRACT WAS COMPLETED UPON ACCEPTANCE OF THE
RELOCATED ROAD ON SEPTEMBER 28, 1951. THIS ACCEPTANCE RECITES THAT,
UPON COMPLETION OF THE RELOCATED RAILROAD, A DETAILED JOINT INSPECTION
WAS MADE FOR THE PURPOSE OF DETERMINING WHETHER THE RELOCATED LINE HAD
BEEN COMPLETED IN ACCORDANCE WITH THE PLANS AND SPECIFICATIONS; THAT IT
HAD BEEN DETERMINED THAT THE WORK HAD BEEN COMPLETED BY THE GOVERNMENT
IN A SATISFACTORY MANNER; AND THAT, THEREFORE, THE RELOCATED LINE WAS
OFFICIALLY ACCEPTED BY THE RAILROAD FOR MAINTENANCE AND OPERATION.
WHILE IT MAY BE, AS THE RECORD INDICATES, THAT THE WRITTEN ACCEPTANCE
WAS EXECUTED BY THE COMPANY UNDER THE IMPRESSION THAT ITS CLAIM FOR
INCREASED MAINTENANCE COSTS WOULD BE ADJUSTED UNDER SECTION 9 OF THE
FLOOD CONTROL ACT OF 1946, ANY REPRESENTATION TO THAT EFFECT BY ANY
OTHER OFFICIAL THAN THE CHIEF OF ENGINEERS, THE ONLY OFFICIAL AUTHORIZED
BY SECTION 9 TO GRANT RELIEF UNDER THIS STATUTORY PROVISION, WAS CLEARLY
UNAUTHORIZED AND NOT BINDING UPON THE GOVERNMENT. 18 COMP. GEN. 568.
THE COMPANY, IN ANY EVENT, WAS REQUIRED TO ACCEPT THE COMPLETED
RELOCATED LINE IF THE CONSTRUCTION MET THE REQUIREMENTS OF THE CONTRACT,
WHICH REQUIREMENTS WERE SATISFIED WHEN THE COMPANY IN THE FORMAL
ACCEPTANCE OF THE RELOCATED LINE ACKNOWLEDGED THAT IT HAD BEEN COMPLETED
BY THE GOVERNMENT IN A SATISFACTORY AND ACCEPTABLE MANNER. HENCE, IT
CANNOT BE SAID THAT THE COMPANY, BY ACCEPTING SAME, DID ANY MORE THAN IT
WAS OBLIGATED TO DO.
AS TO THE CLAIM FOR $30,666.32 UNDER ITEM (1) PART II OF THE CLAIM
FOR EXTRAORDINARY MAINTENANCE OF THE RELOCATED TRACKS, THE RECORD
CLEARLY INDICATES THAT THE COST OF OPERATING THE RAILROAD HAS BEEN
INCREASED CONSIDERABLY BECAUSE OF RELOCATION OF THE LINE. THE WORK
HOWEVER, FOR
WHICH REIMBURSEMENT IS CLAIMED, WAS NOT PROVIDED FOR IN THE CONTRACT
ARTICLE II (C) PROVIDED FOR A LUMP-SUM PAYMENT OF $3,768 AS THE AMOUNT
AGREED UPON BY THE PARTIES AS REPRESENTING THE EXCESS OPERATION AND
MAINTENANCE COSTS FOR THE RELOCATED LINE. SINCE THIS AMOUNT HAS BEEN
PAID TO, AND ACCEPTED BY, THE RAILROAD THERE IS NO LEGAL BASIS FOR ANY
ADDITIONAL PAYMENT OF THIS ITEM. 34 COMP. GEN. 212.
WITH RESPECT TO ITEMS (2) AND (3), PART II OF THE CLAIM FOR
$29,409.50 FOR REPLACEMENT OF THE PASSING AND SIDE TRACKS, NO PROVISION
WAS MADE IN THE CONTRACT FOR THE CONSTRUCTION OF THESE TRACKS. THE
RECORD INDICATES THAT THESE TRACKS WERE CONSTRUED BY THE COMPANY AT ITS
OWN EXPENSE SHORTLY AFTER THE RELOCATED LINE WAS DELIVERED TO THE
RAILROAD ON AUGUST 4, 1947, AND AFTER THE COMPANY WAS NOTIFIED THAT THE
SITE WHERE IT PROPOSED TO CONSTRUCT SAME WAS IN AN AREA A PORTION OF
WHICH WAS LOCATED ON LOOSELY DUMPED SPOIL MATERIAL AND THAT APPRECIABLE
SETTLEMENT MIGHT BE EXPECTED. NO SUCH TRACKS HAD EXISTED ON THE
REPLACED PORTION OF THE LINE PRIOR TO THE RELOCATION.
IN SUCH CIRCUMSTANCES WE SEE NO JUSTIFICATION FOR ANY ALLOWANCE FOR
EITHER ITEM (2) OR THE COMPANY'S CLAIM FOR $8,482.22, IN ITEM (3) PART
II, FOR THE LOSS OF THE SIDE TRACKS.
AS TO THE CLAIM FOR $6,292 FOR RAIL ANCHORS UNDER ITEM (4) PART II,
IT IS UNDERSTOOD THE COMPANY CONTENDS THAT ANCHORS SHOULD HAVE BEEN
PROVIDED BECAUSE OF THE STEEP GRADE OF THE RELOCATED LINE, KINKS IN THE
RELAY RAIL, AND INCREASED CURVATURE. IN THE ABSENCE OF A PROVISION FOR
INSTALLATION OF RAIL ANCHORS IN THE SPECIFICATIONS OF THE RELOCATION
CONTRACT WE FAIL TO SEE ANY LEGAL JUSTIFICATION FOR SUCH A CLAIM,
PARTICULARLY IN VIEW OF THE GENERAL RELEASE IN ARTICLE V OF THE CONTRACT
WHEREIN THE COMPANY, IN CONSIDERATION OF THE PAYMENTS AND THE
FULFILLMENT OF THE MUTUAL COVENANTS, RELEASED AND DISCHARGED THE
GOVERNMENT FROM ANY AND ALL CLAIMS OR DEMANDS FOR DAMAGES OR CAUSES OF
ACTION OF ANY KIND TO THE COMPANY'S PROPERTY CAUSED BY THE CONSTRUCTION,
OPERATION OR MAINTENANCE OF THE DAM OR RESERVOIR OR FROM ANY AND ALL
CLAIMS AND OR CAUSES OF ACTION ARISING OUT OF THE CHANGES AND RELOCATION
OF THE RAILROAD FACILITIES AS PROVIDED IN THE CONTRACT.
WITH RESPECT TO ITEM (6), PART II, WHEREIN THE COMPANY CLAIMS $17,392
FOR BETTERMENTS CLAIMED BY THE GOVERNMENT, AS EXPLAINED ABOVE, BOTH THE
SUM OF $21,160 AS THE INCREASED OPERATING AND MAINTENANCE COSTS, AND THE
CREDIT OF $17,392 AS SAVINGS IN REPLACEMENT OF BALLAST, STRUCTURES, AND
RIGHT-OF-WAY FENCES, WERE EXPRESSLY AGREED UPON BY THE PARTIES AND
EMBODIED IN THE CONTRACT, AND THE RAILROAD HAS PRESENTED NO ADEQUATE
GROUND FOR AVOIDING IT. SINCE THE AGREED AMOUNT HAS BEEN PAID AND
ACCEPTED BY THE COMPANY AS THE EXCESS OPERATION AND MAINTENANCE COSTS
THERE IS NO LEGAL BASIS FOR ALLOWANCE OF ANY ADDITIONAL AMOUNT.
FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C.CLS. 120.
EVEN IF THE COMPANY'S CLAIM WAS OTHERWISE PROPER FOR ALLOWANCE, THE
ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, WITH CERTAIN
EXCEPTIONS NOT HERE MATERIAL, BARS CLAIMS COGNIZABLE BY THE GENERAL
ACCOUNTING OFFICE IF NOT RECEIVED WITHIN 10 FULL YEARS AFTER THE DATE
SUCH CLAIM FIRST ACCRUED. SINCE THE RECORD SHOWS THAT SOME OF THE WORK
FOR WHICH REIMBURSEMENT IS NOW CLAIMED WAS PERFORMED MORE THAN 10 YEARS
BEFORE THE CLAIM WAS RECEIVED IN THIS OFFICE (JUNE 8, 1959),
REIMBURSEMENT THEREFOR WOULD BE FOREVER BARRED.
IN VIEW OF THE FOREGOING WE FIND NO LEGAL BASIS FOR ALLOWANCE OF ANY
PART OF THE CLAIM, UNLESS IT MAY BE BROUGHT UNDER THE PROVISIONS OF
SECTION 9 OF THE FLOOD CONTROL ACT, AND JURISDICTION THEREUNDER IS
VESTED EXCLUSIVELY IN THE CHIEF OF ENGINEERS.
B-139869, JUL. 20, 1959
TO MR. JOSEPH R. PAQUETT, FEDERAL AVIATION AGENCY:
YOUR LETTER OF MAY 12, 1959, FORWARDED TO OUR OFFICE BY LETTER OF MAY
20, 1959, FROM THE FEDERAL AVIATION AGENCY, REQUESTS THAT OUR OFFICE
RENDER A DECISION RELIEVING YOU OF THE OBLIGATION OF REFUNDING THE COST
OF THAT PORTION OF YOUR TRAVEL BETWEEN LOS ANGELES, CALIFORNIA, AND
MEXICO CITY, MEXICO, REFERRED TO IN OUR SETTLEMENT OF AUGUST 19, 1958.
THE RECORD SHOWS THAT TRAVEL ORDER NO. 558-6801, DATED JUNE 25, 1957,
AUTHORIZED TRAVEL AND TRANSPORTATION EXPENSES FOR YOURSELF AND
DEPENDENTS FROM ANNETTE, ALASKA, TO MEXICO CITY, MEXICO, IN ACCORDANCE
WITH THE HOME LEAVE PROVISIONS OF PUBLIC LAW 737, APPROVED AUGUST 31,
1954, 68 STAT. 1008. ROUND-TRIP TICKETS FOR TRAVEL BY AIR FROM ANNETTE
TO MEXICO CITY AND RETURN FOR YOURSELF AND DEPENDENTS WERE PURCHASED ON
GOVERNMENT TRANSPORTATION REQUEST NO. AO,504,953 AT A COST TO THE
GOVERNMENT OF APPROXIMATELY $1,265.45. YOU DEPARTED ANNETTE BY AIRPLANE
ON JULY 1, 1957, MAKING CONNECTIONS AT SEATTLE, WASHINGTON, AND STOPPING
OFF AT LOS ANGELES, CALIFORNIA, AWAITING FLIGHT TO MEXICO CITY. ON JULY
2, 1957, YOU DEPARTED LOS ANGELES ARRIVING IN MEXICO CITY THE SAME DAY.
IN AUDITING YOUR EXPENSE VOUCHER THE ADMINISTRATIVE OFFICE ALLOWED THE
COST OF TRANSPORTATION AND TRAVEL EXPENSES OF ROUND TRIP FROM ANNETTE TO
LOS ANGELES, THE POINT OF DEPARTURE FROM THE CONTINENTAL UNITED STATES
TO MEXICO CITY.
OUR SETTLEMENT OF AUGUST 19, 1958, POINTED OUT TO YOU THAT, UNDER THE
APPLICABLE LAW AND REGULATIONS, SINCE YOUR HOME WAS LOCATED IN
SPRINGFIELD, MASSACHUSETTS, AND YOU DID NOT ELECT TO USE ANY PLACE
WITHIN THE UNITED STATES FOR YOUR VACATION HEADQUARTERS, TRAVEL ORDER
NO. 558-6801 WAS WITHOUT LEGAL EFFECT TO OBLIGATE GOVERNMENT
APPROPRIATED FUNDS.
SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 808, 5
U.S.C. 73B-3, AS AMENDED, AUTHORIZES TRAVEL FOR LEAVE PURPOSES TO "PLACE
OF ACTUAL RESIDENCE.' AS RECOGNIZED IN 35 COMP. GEN. 246, THAT PHRASE
IS NOT VIEWED AS REQUIRING TRAVEL TO THE ACTUAL RESIDENCE AS A CONDITION
TO THE ALLOWANCE OF TRAVEL EXPENSES. REGULATIONS, IMPLEMENTING THE
STATUTE (SECTION 27 (B) OF EXECUTIVE ORDER NO. 9805, AS ADDED BY BUREAU
OF BUDGET CIRCULAR A-4, MAY 3, 1955), AUTHORIZE TRAVEL TO "ANOTHER
LOCATION WITHIN THE COUNTRY, TERRITORY, OR POSSESSION IN WHICH SUCH
PLACE OF ACTUAL RESIDENCE IS LOCATED.' THE STATUTORY REGULATIONS,
HOWEVER, OBVIOUSLY CONTEMPLATE THAT AN EMPLOYEE MAY REASONABLY WISH TO
TAKE HIS LEAVE AT ANOTHER LOCATION AND SO AUTHORIZE PAYMENT OF HIS
TRAVEL EXPENSES TO ANOTHER LOCATION WITH CERTAIN LIMITATIONS.
PARTICULARLY PERTINENT TO THE TRAVEL PERFORMED BY YOU IS THE REQUIREMENT
THAT THE OTHER LOCATION BE "WITHIN THE COUNTRY, TERRITORY, OR POSSESSION
IN WHICH SUCH PLACE OF ACTUAL RESIDENCE IS LOCATED.'
IN VIEW OF THAT REQUIREMENT IN THE STATUTORY REGULATION, WHICH HAS
THE SAME FORCE AND EFFECT AS A STATUTE AND SINCE YOUR HOME WAS IN
SPRINGFIELD AND YOU DID NOT ELECT TO USE ANY PLACE WITHIN THE UNITED
STATES FOR YOUR VACATION HEADQUARTERS WE FEEL THAT TRAVEL ORDER NO.
558-6801 WAS WITHOUT LEGAL EFFECT TO OBLIGATE GOVERNMENT APPROPRIATED
FUNDS FOR ANY PART OF THE TRIP.
REGARDING RELIEF FROM PAYMENT OF YOUR INDEBTEDNESS, OUR OFFICE HAS NO
AUTHORITY TO WAIVE COLLECTION OF AN INDEBTEDNESS, BASED UPON MONEY
ERRONEOUSLY PAID BY A GOVERNMENT AGENCY, UPON CONSIDERATIONS OF
HARDSHIP, OR GOOD FAITH.
B-140012, JUL. 20, 1959
TO THE HONORABLE RAYMOND BLATTENBERGER, PUBLIC PRINTER:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 23, 1959, REQUESTING A
DECISION AS TO WHETHER OR NOT YOU MAY BE AUTHORIZED TO APPLY THE SUM OF
$21,462.71, WITHHELD AS LIQUIDATED DAMAGES FOR DELAYS IN DELIVERY UNDER
A CONTRACT WITH ARTHUR J. GARVIN PRESS, INC., DENISON, TEXAS, AGAINST A
PENALTY OF 50 PERCENT OF THE CONTRACT PRICE AS RECOMMENDED BY THE
REQUISITIONING AGENCY, THE DEPARTMENT OF THE NAVY, ON ACCOUNT OF
DEFECTIVE WORK FURNISHED UNDER THE CONTRACT.
THE RECORD SHOWS THAT ON APRIL 16, 1958, THE GOVERNMENT PRINTING
OFFICE ADVERTISED FOR BIDS ON THE PRODUCTION OF 8,500,000 (PLUS OR MINUS
ONE PERCENT) ONE PART CONTINUOUS MARGINALLY PUNCHED FORMS FOR SHIPMENT
ON OR BEFORE JUNE 27, 1958. THE BID OF ARTHUR J. GAVRIN PRESS, INC.,
WAS ACCEPTED ON APRIL 30, 1958, AND ON MAY 1, 1958, PURCHASE ORDER NO.
14763 FOR 8,500,000 COPIES OF THE REPAIR PARTS STOCK RECORD FORMS WAS
ISSUED AND FORWARDED TO THE CONTRACTOR. THE TOTAL CONTRACT PRICE FOR
THE 8,500,000 UNITS WAS $54,995, COMPUTED AT THE BID PRICE OF $6.47 PER
THOUSAND FORMS. THE CONTRACTOR MADE SHIPMENTS TO THE NAVY INSTALLATIONS
AS REQUIRED, BUT NOT WITHIN THE SPECIFIED TIME. ON SEPTEMBER 30, 1958,
VOUCHERS WERE SUBMITTED ON WHICH CLAIMS WERE MADE FOR PAYMENT OF A TOTAL
AMOUNT OF $55,448.77, INCLUDING THE CONTRACT PRICE OF $55,292.62 FOR
8,546,000 FORMS DELIVERED, AND AMOUNTS TOTALING $156.15 TO COVER
AUTHORIZED AIR FREIGHT CHARGES ON THREE OF THE NINE SHIPMENTS. ON A
PAYMENT VOUCHER DATED OCTOBER 15, 1958, THE SUM OF $21,462.71 WAS
DEDUCTED AS LIQUIDATED DAMAGES FOR DELAYS IN DELIVERY, AND THE
CONTRACTOR WAS PAID THE NET AMOUNT OF $33,986.06 ON THE CLAIMS FOR
$55,448.77. THE LIQUIDATED DAMAGES WERE COMPUTED AT THE CONTRACT RATE
OF ONE PERCENT OF THE CONTRACT PRICE FOR QUANTITIES NOT DELIVERED IN
ACCORDANCE WITH SPECIFICATIONS FOR EACH WORKING DAY THAT THE CONTRACTOR
WAS IN DEFAULT OF THE SHIPPING SCHEDULE. ALTHOUGH SHIPMENTS WERE
REQUIRED BY THE TERMS OF THE CONTRACT TO BE MADE ON OR BEFORE JUNE 27,
1958, A SCHEDULE OF SHIPMENTS ATTACHED TO THE PAYMENT VOUCHER INDICATES
THAT THE FIRST SHIPMENT WAS MADE ON JULY 9, 1958, AND THAT THE LAST
SHIPMENT WAS ACCOMPLISHED ON SEPTEMBER 15, 1958.
IT IS REPORTED THAT ON NOVEMBER 20, 1958, MR. J. A. RICHEY OF THE
EDITORIAL AND PRINTING BRANCH, PUBLICATION DIVISION, DEPARTMENT OF THE
NAVY, TELEPHONED YOUR DIRECTOR OF PLANNING SERVICE AND ADVISED HIM THAT
THEIR GREAT LAKES INSTALLATIONS WAS HAVING DIFFICULTY WITH THE FORMS
BECAUSE THE MARGINALLY PUNCHED HOLES WERE NOT PLACED IN PROPER RELATION
TO THE PRINTED MATTER AND, AS A RESULT, THE PRINTING PERFORMED BY IBM
MACHINE 402 DID NOT APPEAR IN ITS PROPER LOCATION. THIS MATTER WAS
LATER MADE THE SUBJECT OF LETTERS DATED DECEMBER 5, 1958, AND FEBRUARY
18, 1959, FROM MR. RICHEY TO THE GOVERNMENT PRINTING OFFICE. MR. RICHEY
STATED THAT, AS OF THE LATTER DATE, THERE WERE APPROXIMATELY 4,500,000
CARDS FROM CONTRACTOR'S SHIPMENTS ON HAND AT STOCK POINTS, WHICH
REPRESENTED PRACTICALLY ALL OF THE MATERIAL AVAILABLE FOR ISSUE AND USE.
IT WAS INDICATED THAT IT WOULD NOT BE FEASIBLE TO FREEZE THIS QUANTITY
FROM ISSUE AND IT WAS STATED THAT A SUBSTANTIAL LOSS OF TIME AND
MATERIALS RESULTED FROM THE CONTINUED USE OF THE DEFECTIVE PRODUCT. IT
WAS CONTEMPLATED THAT ISSUANCE OF THE DEFECTIVE FORMS WOULD BE SUSPENDED
AT SUCH TIME AS STOCKS OF FORMS MEETING SPECIFICATIONS WERE AT AN
ADEQUATE LEVEL, AND IT WAS RECOMMENDED THAT THE GOVERNMENT PRINTING
OFFICE TAKE ACTION TO RECOVER A PART OF THE COST OF THE DEFECTIVE FORMS
DELIVERED TO THE DEPARTMENT OF THE NAVY, OR TO SECURE FROM THE
CONTRACTOR A REPRINT OF A SATISFACTORY AMOUNT OF PERFECT MATERIAL. MR.
RICHEY SUGGESTED THAT 50 PERCENT OF THE CONTRACT PRICE WOULD BE A
REASONABLE BASIS FOR RECOVERY IN VIEW OF THE DIFFICULTIES EXPERIENCED IN
THE USE OF THE MATERIAL, ITS INFERIOR PERFORMANCE IN MACHINE RUNS, AND
THE LESS THAN DESIRABLE END PRODUCT WHICH RESULTED.
THE CONTRACTOR WAS ADVISED BY LETTER DATED MARCH 12, 1959, OF THE
COMPLAINT MADE BY THE DEPARTMENT OF THE NAVY, AND WAS REQUESTED TO
REVIEW THE MATTER IMMEDIATELY AND INFORM THE GOVERNMENT PRINTING OFFICE
AS TO THE MANNER IN WHICH THE CONTRACTOR WISHED TO PROCEED WITH RESPECT
TO THE ALTERNATIVE METHODS OF MAKING AN ADJUSTMENT AS RECOMMENDED BY THE
DEPARTMENT OF THE NAVY. IN THE CONTRACTOR'S REPLY OF MARCH 20, 1959, IT
WAS NOT CONTENDED THAT THE FORMS WERE NOT DEFECTIVE BUT IT WAS EXPLAINED
THAT A CONSIDERABLE AMOUNT OF DIFFICULTY WAS EXPERIENCED IN PERFORMING
THE CONTRACT, WHICH RESULTED PRIMARILY FROM A BREAKDOWN OF EQUIPMENT AT
THE COMMENCEMENT OF THE JOB. IT WAS ALLEGED THAT THERE WAS NOT ENOUGH
TIME TO BUILD NEW DIE CUTTING RINGS AND A SHAFT FOR THE PRESS; THAT A
CONTRAPTION WAS IMPROVISED AT CONSIDERABLE EXPENSE TO DO THE DIE CUTTING
ON SEMI-MANUAL OPERATION AFTER THE FORMS WERE PRINTED AND FOLDED; THAT
THE CONTRIVANCE OPERATED VERY SLOWLY AND BROKE DOWN ALMOST DAILY; AND
THAT EXPENDITURES, PLUS THE LIQUIDATED DAMAGE ASSESSMENTS OF $21,462.71,
TOTALED $79,462.71. THE CONTRACTOR EVIDENCED A DESIRE TO MAINTAIN A
GOOD RECORD OF PERFORMANCE UNDER GOVERNMENT PRINTING CONTRACTS, BUT
STATED THAT "IN OUR PRESENT FINANCIAL CONDITION, GAVRIN PRESS IS IN NO
POSITION TO ABSORB ADDITIONAL PENALTIES.' ALSO, ON THE BASIS THAT THE
GOVERNMENT PRINTING OFFICE CONSIDERED SETTLEMENT ON ACCOUNT OF A
DEFECTIVE PERFORMANCE OF THE CONTRACT OF APRIL 30, 1958, TO BE
ABSOLUTELY NECESSARY, THE CONTRACTOR REQUESTED THAT SETTLEMENT ACTION BE
HELD IN ABEYANCE FOR AT LEAST ANOTHER YEAR OR TWO UNTIL THE CONTRACTOR'S
FINANCIAL CONDITIONS IMPROVED.
IT IS STATED IN YOUR LETTER THAT YOUR CONTRACTING OFFICER HAS BEEN
ADVISED VERBALLY BY THE DEPARTMENT OF THE NAVY THAT AN OVERALL REDUCTION
OF 50 PERCENT WILL SATISFY ALL CLAIMS OF THE DEPARTMENT IN CONNECTION
WITH THIS JOB, INCLUDING THE DELAY IN RECEIVING THE FORMS. THE 50
PERCENT WOULD AMOUNT TO $27,646.31, AND, IF THE SUM OF $21,462.71
WITHHELD AS LIQUIDATED DAMAGES WERE APPLIED AGAINST THE PENALTY OF
$27,646.31, THERE WOULD BE A BALANCE OF $6,183.60 DUE THE GOVERNMENT
FROM THE CONTRACTOR. OTHERWISE, IF A DEDUCTION OF 50 PERCENT WERE MADE
IN ADDITION TO THE DELAY DAMAGES, THE TOTAL CHARGE AGAINST THE
CONTRACTOR WILL AMOUNT TO $49,109.02 WHICH WOULD MEAN THAT THE
CONTRACTOR, INSTEAD OF OBTAINING AT LEAST $27,646.31 AS PAYMENT FOR THE
FORMS DELIVERED, WILL EVENTUALLY RECEIVE ONLY $6,183.60 FOR 8,546,000
FORMS. YOU EXPRESS THE VIEW THAT SUCH AMOUNT WOULD NOT REPRESENT A FAIR
AND REASONABLE PAYMENT FOR THE FORMS RECEIVED BY THE GOVERNMENT, BUT
INDICATE THAT THE BALANCE OF $6,183.60 DUE THE GOVERNMENT ON THE BASIS
OF APPLYING THE AMOUNT ALREADY COLLECTED AS LIQUIDATED DAMAGES AGAINST A
50 PERCENT REDUCTION CAN BE RECOVERED BY YOUR OFFICE.
IT IS, OF COURSE, WELL SETTLED THAT THE VALIDITY OF A LIQUIDATED
DAMAGE STIPULATION IN A CONTRACT IS UNAFFECTED BY THE FACT THAT NO
ACTUAL DAMAGE CAN BE SHOWN TO HAVE RESULTED FROM THE BREACH OF THE
PERFORMANCE REQUIREMENTS COVERED THEREBY, OR THE FACT THAT THE ACCRUAL
OF LIQUIDATED DAMAGES IN THE PARTICULAR CASE MAY EQUAL OR EVEN EXCEED
THE AGREED CONTRACT PRICE. SEE 36 COMP. GEN. 143, 145. APPARENTLY,
THERE EXISTS NO LEGAL BASIS UPON WHICH THE FULL AMOUNT CHARGED TO ARTHUR
J. GAVRIN PRESS, INC., AS LIQUIDATED DAMAGES FOR DELAYS IN PERFORMANCE
OF THE CONTRACT OF APRIL 30, 1958, MAY BE APPLIED AGAINST SUCH AMOUNT AS
MAY BE DUE THE GOVERNMENT AS A REDUCTION IN THE CONTRACT PRICE BECAUSE
THE FORMS DELIVERED UNDER THE CONTRACT DID NOT MEET SPECIFICATION
REQUIREMENTS.
HOWEVER, IF THE TOTAL CONTRACT PRICE SHOULD BE ADJUSTED IN ACCORDANCE
WITH THE CONTRACT PROVISION THAT "IN THE EVENT PUBLIC NECESSITY REQUIRES
THE USE OF MATERIALS OR SUPPLIES NOT CONFORMING TO THE SPECIFICATIONS,
PAYMENT THEREFOR SHALL BE MADE AT A PROPER REDUCTION IN PRICE," IT WOULD
APPEAR THAT LIQUIDATED DAMAGES SHOULD BE ASSESSED ON THE BASIS OF THE
REDUCED PRICE, AND WOULD THUS BE PROPORTIONATELY LESS THAN THE AMOUNT
PREVIOUSLY ASSESSED.
YOU ARE THEREFORE ADVISED THAT, IN OUR OPINION, YOU ARE NOT
AUTHORIZED ON THE PRESENT RECORD TO APPLY THE FULL AMOUNT OF $21,462.71
AGAINST A 50 PERCENT PENALTY OR REDUCTION ON ACCOUNT OF DEFECTIVE WORK
FURNISHED UNDER THE CONTRACT, BUT THAT LIQUIDATED DAMAGES FOR DELAYED
DELIVERIES SHOULD BE CHARGED ON THE BASIS OF SUCH REDUCED PRICE FOR THE
SUPPLIES FURNISHED AS YOU MAY DETERMINE TO BE PROPER.
IT APPEARS THAT A REDUCTION OF THE CONTRACT UNIT PRICE FROM $6.47 PER
THOUSAND TO $5.305 PER THOUSAND, AND ASSESSMENT OF LIQUIDATED DAMAGES AT
ONE PERCENT PER DAY ON THE REDUCED PRICE, WOULD SUBSTANTIALLY ACHIEVE
THE ADJUSTMENT RECOMMENDED BY THE NAVY.
AS REQUESTED, THE CORRESPONDENCE AND DOCUMENTS FORWARDED WITH YOUR
LETTER ARE RETURNED
B-140069, JUL. 20, 1959
TO THE BROSE OFFSET LITHOGRAPHIC COMPANY, INC. :
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 8, 1959, REQUESTING
RECONSIDERATION OF SETTLEMENT DATED MAY 26, 1959, BY WHICH OUR CLAIMS
DIVISION DISALLOWED YOUR CLAIM FOR REFUND OF LIQUIDATED DAMAGES IN THE
AMOUNT OF $230.86, ASSESSED BY A GOVERNMENT PRINTING OFFICE ON ACCOUNT
OF LATE DELIVERY OF A QUANTITY OF PAMPHLETS REQUIRED TO BE FURNISHED
UNDER A PURCHASE ORDER DATED JUNE 26, 1958.
AS A BASIS FOR YOUR REQUEST, YOU SEEM TO TAKE THE POSITION THAT A
TELEPHONE CONVERSATION BETWEEN YOUR MR. BROSE AND THE CONTRACTING
OFFICER ON JULY 22, 1958, DID NOT AFFECT THE CONTRACT TERMS, SINCE
ARTICLE 2 OF CONTRACT TERMS NO. 1 PROVIDED THAT---
"* * * NO ORAL STATEMENT OF ANY PERSON SHALL BE ALLOWED IN ANY MANNER
OR DEGREE TO MODIFY OR OTHERWISE AFFECT THE TERMS, CONDITIONS, OR
SPECIFICATIONS OF THE CONTRACT OR ANY PURCHASE ORDER THEREUNDER. * * *"
YOU THEN GO ON TO SAY IN YOUR LETTER THAT SINCE THE CONTRACT
PRECLUDED VERBAL CHANGES, YOU EXPECTED TO RECEIVE A CHANGE ORDER SETTING
FORTH SUCH NEW TERMS AND CONDITIONS AS MAY HAVE BEEN DESIRED. ALSO, YOU
REFERRED TO ARTICLE 17 OF CONTRACT TERMS NO. 1, RELATING TO DELAY IN
DELIVERY, WHICH PROVIDES THAT PENALTIES AND/OR DAMAGES SHALL NOT BE
APPLIED AGAINST THE CONTRACTOR FOR DELAYS IN DELIVERY OCCASIONED BY
UNFORSEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT FAULT OR NEGLIGENCE
OF THE CONTRACTOR, AND YOU INSIST THAT YOU COULD HAVE PERFORMED THE WORK
WITHIN THE SPECIFIED TIME IF THE NEGATIVES TO BE FURNISHED BY THE
GOVERNMENT PRINTING OFFICE HAD BEEN DELIVERED TO YOU WITHIN THE CONTRACT
SCHEDULE, THAT IS TO SAY, BY JUNE 27, 1958.
THE RECORD SHOWS THAT THE PURCHASE ORDER OF JUNE 26, 1958, WAS ISSUED
PURSUANT TO YOUR BID DATED JUNE 17, 1958, WHEREBY YOU AGREED TO FURNISH
5,000 COPIES OF A PAMPHLET CONSISTING OF 40 PAGES AND COVER AT THE PRICE
OF $685, AND AN ADDITIONAL 290 COPIES AT THE PRICE OF $17.40, SHIPMENT
TO BE MADE ON OR BEFORE JULY 28, 1958, SUBJECT TO LIQUIDATED DAMAGES AT
THE RATE OF ONE PERCENT OF THE CONTRACT PRICE FOR EACH DAY OF DELAY.
AMONG OTHER THINGS, THE PURCHASE ORDER PROVIDED THAT THE GOVERNMENT
PRINTING OFFICE WOULD FURNISH YOUR CONCERN WITH ONE SET (42) OF FILM
NEGATIVES BY JUNE 27, 1958. THESE NEGATIVES WERE NOT FURNISHED UNTIL
JULY 23, 1958, AND THUS WERE 17 WORKING DAYS LATE; HOWEVER, THE SPECIAL
TERMS AND CONDITIONS, ON WHICH YOUR BID WAS BASED, CONTAINED THE
FOLLOWING SPECIFIC PROVISION:
"IN THE EVENT COPY AND/OR MATERIALS WHICH ARE TO BE FURNISHED THE
GOVERNMENT ARE NOT FURNISHED AS SCHEDULED, THE DELIVERY SCHEDULE WILL BE
EXTENDED AUTOMATICALLY BY THE NUMBER OF WORKING DAYS COPY AND/OR
MATERIALS ARE WITHHELD FROM THE CONTRACTOR. WHEN DELIVERY IS MADE LATER
THAN THE DATE ESTABLISHED BY SUCH EXTENSION, THE CONTRACTOR WILL BE
CONSIDERED TO BE DELINQUENT. FURTHER EXTENSION OR ADJUSTMENT OF
SCHEDULE MAY BE MADE IF REQUESTED IN WRITING BY THE CONTRACTOR AND
APPROVED BY THE GOVERNMENT PRINTING OFFICE AND ORDERING AGENCY.'
IT IS CLEAR THAT UNDER THE QUOTED TERMS AND CONDITIONS OF THE
CONTRACT THE FAILURE OF THE GOVERNMENT PRINTING OFFICE TO FURNISH THE
NEGATIVES UNTIL JULY 23, 1958, DID NOT CONSTITUTE A BREACH OF THE
CONTRACT OR EXCUSE YOU FROM PERFORMING IT, BUT MERELY REQUIRED AN
EXTENSION OF THE CONTRACT DELIVERY DATE BY A NUMBER OF WORKING DAYS
EQUAL TO THE GOVERNMENT'S DELAY IN SHIPMENT, PLUS THREE DAYS OF GRACE
PROVIDED FOR ELSEWHERE IN THE CONTRACT. IT FOLLOWS THAT NO CHANGE ORDER
WAS REQUIRED TO PLACE THE EXTENDED DELIVERY DATE INTO EFFECT SINCE THE
CONTRACT ITSELF SO PROVIDED, AND THE TELEPHONE CONVERSATION REFERRED TO
DOES NOT APPEAR TO BE MATERIAL.
RESPECTING THE PENULTIMATE PARAGRAPH OF YOUR LETTER, TO THE EFFECT
THAT YOU ARE WITHOUT FAULT OR NEGLIGENCE IN THIS MATTER SINCE THE DELAY
WAS DUE TO THE FAILURE OF THE GOVERNMENT PRINTING OFFICE TO FURNISH THE
NEGATIVES WITHIN THE PRESCRIBED TIME, AND THAT UNDER ARTICLE 17 OF
CONTRACT TERMS NO. 1 NO LIQUIDATED DAMAGES SHOULD BE CHARGED IN THIS
CASE, IT APPEARS THAT THE DELAY IN THIS CASE ATTRIBUTABLE TO THE
GOVERNMENT PRINTING OFFICE WAS, UNDER THE CONTRACT TERMS, AUTOMATICALLY
COMPENSATED FOR BY THE EQUIVALENT EXTENSION OF TIME FOR DELIVERY. ALSO,
UNDER THE TERMS OF THE CITED ARTICLE, IN ORDER TO BE RELIEVED FROM
LIQUIDATED DAMAGES FOR DELAY FOR REASONS BEYOND YOUR CONTROL, ETC., YOU
WERE REQUIRED TO GIVE THE CONTRACTING OFFICER WRITTEN NOTICE WITHIN
TEN CALENDAR DAYS FROM THE BEGINNING OF SUCH DELAY. THERE IS NOTHIN
IN THE RECORD BEFORE OUR OFFICE INDICATING THAT SUCH NOTICE WAS GIVEN,
IT BEING STATED BY YOU MERELY THAT THE DELAY WOULD AFFECT YOUR VACATION
SCHEDULE AND PLANT PRODUCTION.
UNDER THE FACTS OF RECORD IN THIS CASE WE ARE OF THE VIEW THAT THE
ACTION OF THE GOVERNMENT PRINTING OFFICE IN ASSESSING AND COLLECTING
LIQUIDATED DAMAGES WAS LEGALLY PROPER. SEE ROBINSON V. UNITED STATES,
261 U.S. 486. ACCORDINGLY, THE ACTION TAKEN IN THE SETTLEMENT OF MAY
26, 1959, DISALLOWING YOUR CLAIM, APPEARS TO HAVE BEEN CORRECT AND IS
SUSTAINED.
B-140104, JUL. 20, 1959
TO THE HIGGINS METAL PRODUCTS COMPANY:
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 15, 1959,
REQUESTING A REVIEW OF OUR SETTLEMENT DATED JUNE 8, 1959, WHICH
DISALLOWED YOUR CLAIM FOR $59.52 UNDER DEPARTMENT OF THE ARMY PURCHASE
ORDER NO. 33-079-59-1986.
YOU NOW CONTEND THAT YOUR CLAIM IS FOR ALLOWANCE BECAUSE "NO
REQUIREMENT WAS STIPULATED IN THE BID FORM AND CONTRACT THAT SPECIAL
PACKAGING WAS REQUIRED.' THIS ALLEGATION, HOWEVER, IS NOT CONSISTENT
WITH THE FACTS AS SHOWN BY THE RECORD BEFORE US. ATTACHED TO DD FORM
747 "REQUEST FOR QUOTATION," FORWARDED TO YOU BY THE ROSSFORD ORDNANCE
DEPOT, IS A COPY OF A LETTER WHICH EXPRESSLY SETS FORTH UNDER PARAGRAPH
NO. 6, DETAILED PACKAGING REQUIREMENTS FOR THE PRIMER FIRING FIXTURES.
MOREOVER, ON PAGE 3 OF THE PURCHASE ORDER ISSUED BY THE DEPOT, IN
RESPONSE TO YOUR QUOTATION, THERE WERE LIKEWISE STIPULATED THE PACKAGING
REQUIREMENTS INVOLVED. YOUR ACCEPTANCE OF THE PURCHASE ORDER AND
DELIVERY THEREUNDER RESULTED IN A VALID AND BINDING AGREEMENT ON YOUR
PART TO PERFORM IN ACCORDANCE WITH ITS TERMS AND AT THE PRICE STIPULATED
THEREIN. 36 COMP. GEN. 191.
B-115351, JUL. 17, 1959
TO MR. CLARENCE G. MORSE:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 24, 1959, TRANSMITTING FOR
REVIEW AND APPROVAL TWO CHANGES TO THE ACCOUNTING PRINCIPLES AND
STANDARDS WHICH UNDERLIE THE ACCOUNTING SYSTEM OF THE MARITIME
ADMINISTRATION AND THE FEDERAL MARITIME BOARD PREVIOUSLY APPROVED IN OUR
LETTER OF MARCH 2, 1955 (B-115351).
THE TWO CHANGES TO WHICH YOU REFER RELATE TO ACCOUNTING PRINCIPLES
6.A. AND 13, THE LATTER REPLACING ACCOUNTING PRINCIPLE 6.C. AS REVISED
THESE PRINCIPLES ARE:
"6. ACCOUNTS ARE MAINTAINED ON AN ACCRUAL BASIS FOR ALL SIGNIFICANT
ITEMS EXCEPT FOR THE FOLLOWING:
A. THE ACCOUNTS DO NOT PROVIDE FOR ACCRUAL OF ANNUAL LEAVE DURING
THE FISCAL YEAR; HOWEVER, THE CUMULATIVE ANNUAL LEAVE EARNED BUT NOT
TAKEN OR DISALLOWED IS DETERMINED AT THE CLOSE OF EACH FISCAL YEAR AND
THE NET INCREASE OR DECREASE FOR THE PERIOD RECORDED IN THE ACCOUNTS TO
DISCLOSE THE ESTIMATED LEAVE LIABILITY.
"13. AN ALLOWANCE FOR UNCOLLECTIBLE ACCOUNTS WILL BE MADE TO PROVIDE
FOR LOSSES THAT MAY RESULT FROM RECEIVABLES THAT MAY PROVE TO BE
UNCOLLECTIBLE.'
YOUR LETTER STATED THAT THE ALLOWANCE FOR UNCOLLECTIBLE ACCOUNTS IS
TO BE BASED ON AN ANALYSIS OF PAST DUE RECEIVABLES; AND THAT
ADJUSTMENTS OF BILLINGS DUE TO ERRORS IN LAW OR FACT WHICH CONSTITUTE
THE MAJOR AMOUNTS OF RECEIVABLES WRITTEN OFF ARE TO BE CHARGED TO THE
INCOME ACCOUNT ORIGINALLY CREDITED, RATHER THAN TO THE ALLOWANCE.
REPRESENTATIVES OF YOUR OFFICE HAVE INFORMED US THAT THIS BASIS FOR
DETERMINING THE ALLOWANCE FOR BAD DEBTS HAS BEEN ADOPTED BECAUSE THE
AMOUNTS OF ADJUSTMENTS FOR ERRORS WERE NOT PREDICTABLE. THEY AGREED,
HOWEVER, THAT TO THE EXTENT SUCH ADJUSTMENTS MAY BECOME REASONABLY
PREDICTABLE IN THE FUTURE, APPROPRIATE ALLOWANCE WILL BE MADE FOR THEM
BY CHARGES TO CURRENT EXPENSES.
BASED ON THE ABOVE UNDERSTANDINGS, THE PRINCIPLES, AS OUTLINED IN
YOUR LETTER OF MARCH 24, 1959, ARE APPROVED.
B-118666, JUL. 17, 1959
HASTINGS-RAYDIST, INC. :
REFERENCE IS MADE TO YOUR LETTER OF MARCH 28, 1959, WITH ENCLOSURES,
RECOMMENDING AN INVESTIGATION OF ALL ASPECTS OF WHAT YOU CONSIDER TO
HAVE BEEN UNREASONABLE AUDITING AND EXAMINATION PROCEDURES BY THE
ADMINISTRATIVE OFFICE AND BY THE GENERAL ACCOUNTING OFFICE IN CONNECTION
WITH CONTRACT NO. AF 08/606/-103.
AS YOU STATE IN YOUR LETTER, YOUR COMPLAINT REGARDING THIS MATTER WAS
DISCUSSED BY YOU AT A HEARING BEFORE THE SENATE SELECT COMMITTEE ON
SMALL BUSINESS, AT WHICH REPRESENTATIVES OF OUR OFFICE ALSO TESTIFIED.
YOUR LETTER FURTHER ALLEGES THAT MANY OF THE STATEMENTS MADE BY OUR
REPRESENTATIVES AT THAT HEARING WERE MISLEADING AND INACCURATE.
AS A RESULT OF YOUR LETTER THE TRANSCRIPT OF THE HEARING HAS BEEN
SCRUTINIZED CAREFULLY IN AN ATTEMPT TO DISCOVER INACCURATE OR MISLEADING
STATEMENT BY OUR REPRESENTATIVES. WE FOUND ONE RELATIVELY IMMATERIAL
INACCURACY IN OUR TESTIMONY, CONCERNING THE CONTENTS OF A LETTER WHICH
WAS QUOTED IN THE OPINION OF THE UNITED STATES DISTRICT COURT. THIS
INACCURACY WAS CORRECTED IN A MEMORANDUM TO THE STAFF OF THE SELECT
COMMITTEES. IT APPEARS TO BE YOUR POSITION, JUDGING FROM THE SUMMARY OF
THE LITIGATION ENCLOSED WITH YOUR LETTER, THAT YOU WERE IMPROPERLY
DENIED INTEREST ON THE $2,000 JUDGMENT YOU OBTAINED. WE MUST DISAGREE
WITH YOUR POSITION ON THIS, AND WE WERE SUPPORTED IN OUR DISAGREEMENT BY
THE DEPARTMENT OF JUSTICE. BY REASON OF YOUR AGREEMENT TO DISMISS THE
APPEAL, THE QUESTION WAS NOT ADJUDICATED BY THE CIRCUIT COURT OF
APPEALS. WE HAVE FOUND NO OTHER INACCURACIES OR MISLEADING STATEMENTS
IN OUR TESTIMONY.
IN OUR AUDITS OF COMPANIES ENGAGED IN THE PERFORMANCE OF DEFENSE
CONTRACT ACTIVITIES, WE MAKE EVERY EFFORT TO BE FAIR AND OBJECTIVE AND,
AT THE SAME TIME, WE ATTEMPT TO AVOID INTERFERING WITH COMPANIES
CARRYING OUT OPERATIONS FOR THE GOVERNMENT. ALTHOUGH SOMETIMES
COMPANIES COMPLAIN OF INCONVENIENCES RESULTING FROM THE WORK OF THIS
OFFICE, WE BELIEVE THAT THE RESULTS OF OUR RELATIVELY EXTENSIVE
EXAMINATIONS OF OPERATIONS UNDER DEFENSE CONTRACTS HAVE DEMONSTRATED
THAT THE REVIEW OF CONTRACTORS' OPERATIONS UNDER GOVERNMENT CONTRACTS IS
ESSENTIAL TO ADEQUATELY PROTECT THE GOVERNMENT'S INTEREST.
B-136507, JUL. 17, 1959
TO THE UNIVERSAL CARLOADING AND DISTRIBUTING CO., INC. :
FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 16, 1959,
REQUESTING REVIEW OF THE SETTLEMENT (IN CLAIM NO. TK 622620), DATED
MARCH 17, 1959, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $1,898.53,
REPRESENTING AN AMOUNT ADMINISTRATIVELY DEDUCTED TO REIMBURSE THE
GOVERNMENT FOR THE DAMAGE SUFFERED BY A SHIPMENT OF 100 SHEET STEEL
CLOTHES CHECKING LOCKERS, S.U., WHILE IN TRANSIT FROM THE PLANT OF
FEDERAL PRISON INDUSTRIES, INC., LEWISBURG, PENNSYLVANIA, TO THE FEDERAL
SUPPLY CENTER, GENERAL SERVICES ADMINISTRATION WAREHOUSE, LOS ANGELES,
CALIFORNIA, UNDER GOVERNMENT BILL OF LADING NO. GS-73629, DATED FEBRUARY
12, 1953.
THE AMOUNT OF YOUR CLAIM REPRESENTS THE TRANSPORTATION CHARGES OF
$803.53 APPLICABLE TO THE SAID SHIPMENT, PLUS THE CONTRACT VALUE OF THE
LOCKERS, AMOUNTING TO $1,595, MINUS THE AMOUNT OF $500 RECEIVED BY YOU
IN SALVAGING THE ITEMS AFTER THEIR DELIVERY TO, AND REJECTION BY, THE
CONSIGNEE--- THE GENERAL SERVICES ADMINISTRATION.
OUR RECORDS SHOW THAT THE LOCKERS WERE PICKED UP AT ORIGIN BY YOUR
AGENT, HALL'S MOTOR TRANSIT COMPANY, ON FEBRUARY 12, 1953, AND THAT THE
CONSIGNMENT ARRIVED AT DESTINATION ON FEBRUARY 27 AND MARCH 3, 1953.
UPON INSPECTION OF 71 OF THE UNITS, CONDUCTED ON MARCH 5, 1953, IT WAS
FOUND THAT EACH OF THE UNITS WAS SEVERELY DAMAGED, THE DAMAGE CONSISTING
PRINCIPALLY OF "PAINT RUBS," DENTED AND GOUGED PANELS, ETC., WHEREUPON
THE ENTIRE SHIPMENT WAS REJECTED BY THE CONSIGNEE, AND THEN TURNED OVER
TO THE CARRIER FOR SALVAGE.
BASICALLY, IT IS YOUR CONTENTION THAT THE LOCKERS WERE NOT PACKED IN
ACCORDANCE WITH CLASSIFICATION REQUIREMENTS. YOUR REQUEST FOR REFUND IS
APPARENTLY PREDICATED ON THE GROUND THAT FAILURE TO PACK IN COMPLIANCE
WITH THE REQUIREMENTS OF THE RAILROAD FREIGHT CLASSIFICATION CONSTITUTES
A FAULT OF THE SHIPPER, AND RELIEVES THE CARRIER FROM LIABILITY FOR
DAMAGE.
IT IS NOTED THAT YOUR BILL NO. G-210661 WAS FOR FREIGHT CHARGES OF
$803.53, APPARENTLY BASED ON A FIRST CLASS RATE OF $8.83 PER 100 POUNDS.
BY A REQUEST FOR REFUND FROM NO. 1003, DATED OCTOBER 31, 1956, YOU WERE
ADVISED THAT THE PROPER FREIGHT CHARGES WERE DETERMINED TO BE $631.04,
BASED ON A RATE OF $6.03 PER 100 POUNDS, PLUS THE EX PARTE NO. 175
INCREASE OF 15 PERCENT. THE $6.03 RATE IS NAMED IN ITEM 5580 OF
TRANS-CONTINENTAL FREIGHT BUREAU FREIGHT TARIFF NO. 1-B, I.C.C. NO.
1551. THE USE OF ALL-RAIL FREIGHT RATES OR CHARGES, WHEN LOWER THAN
FREIGHT FORWARDER PUBLISHED RATES, IS AUTHORIZED BY YOUR FREIGHT
FORWARDER FREIGHT-RATE EQUALIZATION AGREEMENT DATED MARCH 28, 1949,
FILED WITH THE BUREAU OF FEDERAL SUPPLY, U.S. TREASURY DEPARTMENT.
ITEM 5580 NAMES A LESS CARLOAD COMMODITY RATE ON--- AMONG OTHER
ARTICLES--- "LOCKERS, PARCEL OR CLOTHES CHECKING, SHEET STEEL OR WIRE
MESH, SEPARATE OR COMBINED, IN CRATES OR K.D. FLAT IN BUNDLES.' IN THIS
CONNECTION, IT MAY BE STATED THAT WHILE THE BILL OF LADING DESCRIPTION
SHOWS BOTH: "LOCKERS, CLOTHES, CHECKING, SHEET STEEL," AND "STEEL
STORAGE OR WARDROBE LOCKERS, S.U., " IT HAS BEEN ASCERTAINED FROM THE
GENERAL SERVICES ADMINISTRATION FREIGHT CLASSIFICATION GUIDE DATED
JANUARY 1953, THAT THE ARTICLES HERE SHIPPED ACTUALLY WERE SHEET STEEL
CLOTHES CHECKING LOCKERS.
WHILE THE COMMODITY DESCRIPTION IN ITEM 5580 INDICATES A PACKING
REQUIREMENT FOR SHIPMENT "IN CRATES," THE RECORD INDICATES THAT THESE
CLOTHES LOCKERS WERE PACKED IN A CORRUGATED FIBERBOARD CONTAINER. AN
EXAMINATION OF THE RECORD BEFORE US SUPPORTS THE CONCLUSION THAT THE
LOCKERS WERE PACKED IN A FIBERBOARD CONTAINER COMPLYING WITH THE
REQUIREMENTS OF RULE 41 OF THE CONSOLIDATED FREIGHT CLASSIFICATION.
ITEM 800, ON PAGE 181 OF THE TRANS-CONTINENTAL FREIGHT BUREAU TARIFF NO.
1-B, PROVIDES RULES FOR APPLYING THE PACKING REQUIREMENTS SET FORTH IN
THE SEVERAL COMMODITY RATE ITEMS IN THE TARIFF. IT IS SHOWN, IN
SUBSTANCE, THAT FIBERBOARD BOXES ARE FIRST CLASS PACKAGES; AND THAT
CRATES ARE SECOND CLASS PACKAGES. PARAGRAPH (F) OF ITEM 800 PROVIDES
THAT:
"RATES PROVIDED FOR ARTICLES IN ANY PACKAGE OF THE SECOND CLASS ALSO
APPLY UPON THE SAME ARTICLES IN ANY PACKAGE OF THE FIRST OR IN ANY OTHER
PACKAGE OF THE SECOND CLASS.'
THUS, SINCE THE COMMODITY RATE NAMED IN ITEM 5580 APPLIES ON
SHIPMENTS IN CRATES, IT IS ALSO APPLICABLE ON SHIPMENTS OF THE SAME
ARTICLES IN FIBERBOARD BOXES. IT SHOULD BE NOTED ALSO THAT THE ITEM 800
REFERRED TO ABOVE STATES THAT "THE VARIOUS KINDS OF PACKAGES NAMED IN
THE COMMODITY ITEMS MUST MEET THE REQUIREMENTS SPECIFIED BELOW," AND NO
REFERENCE IS MADE TO THE PACKING REQUIREMENTS IN THE CONSOLIDATED
FREIGHT CLASSIFICATION.
IT IS ACCORDINGLY CONCLUDED THAT THE PACKING OF THE SHEET STEEL
CLOTHES CHECKING LOCKERS COMPLIED WITH THE REQUIREMENTS IN CONNECTION
WITH THE COMMODITY RATE FOUND TO BE PROPERLY APPLICABLE TO THIS
SHIPMENT. MOREOVER, THE PROPER DESCRIPTION OF THE LOCKERS HERE SHIPPED
IS CONTAINED IN ITEM 26695 OF CONSOLIDATED FREIGHT CLASSIFICATION NO.
20, NAMING A RATING ON:
"LOCKERS, PARCEL OR CLOTHES CHECKING, SHEET STEEL OR WIRE MESH,
SEPARATE OR COMBINED, LCL IN BOXES OR CRATES, OR WALLS (SIDES) PROTECTED
BY FIBERBOARD TESTING NOT LESS THAN 200 LBS; CL, LOOSE OR IN PACKAGES.'
THE COPIES OF CORRESPONDENCE SUBMITTED BY YOU WITH REFERENCE TO THE
APPLICABILITY OF PACKAGE 16-F, AS DESCRIBED IN THE CLASSIFICATION, SHOW
THAT CONSIDERATION WAS GIVEN ONLY TO THE ARTICLES DESCRIBED IN ITEMS
19845 AND 19855 OF CLASSIFICATION NO. 20, AS "CABINETS OR LOCKERS,
STORAGE, WARDROBE OR KITCHEN, NOIBN * * * STEEL WITHOUT GLASS.'
BILL NO. 953-CL-40 FURNISHED YOU BY GENERAL SERVICES ADMINISTRATION
ON MARCH 23, 1953, SHOWS THAT THE LOCKER IN QUESTION WAS LISTED AS STOCK
ITEM NO. 26-L-2229-100 IN THE FEDERAL SUPPLY CATALOG, AND, AS STATED
ABOVE, THE GENERAL SERVICES ADMINISTRATION FREIGHT CLASSIFICATION GUIDE
DATED JANUARY 1953, SHOWS THAT THIS ITEM IS PROPERLY DESCRIBED AS SHEET
STEEL CLOTHES CHECKING LOCKERS, NAMED IN ITEM 26695 OF CONSOLIDATED
FREIGHT CLASSIFICATION NO. 20, AND FURTHER SPECIFICALLY DESCRIBED FOR
SHIPMENT IN CRATES IN ITEM 5580 OF THE TRANS-CONTINENTAL FREIGHT TARIFF
NO. 1-B.
ACCORDINGLY, FOR THE REASONS STATED, THE SETTLEMENT DISALLOWING YOUR
CLAIM IS SUSTAINED.
B-139516, JUL. 17, 1959
TO MR. JOSEPH HALPERN, PRESIDENT:
WE HAVE YOUR LETTER OF JULY 10, 1959, ENCLOSING A COPY OF A LETTER
DATED APRIL 29, 1959, ADDRESSED TO YOU BY THE ASSOCIATED GENERAL
CONTRACTORS OF AMERICA, INC.
YOU STATE THAT IN VIEW OF OUR OPINION, AS SET FORTH IN OUR DECISION
OF JULY 1, 1959, THAT THE CORPS OF ENGINEERS DID NOT HAVE A JUSTIFIABLE
BASIS ON WHICH TO DETERMINE THAT YOUR COMPANY WAS NOT A RESPONSIBLE
BIDDER UNDER INVITATION NO. ENG-30-347-59-18, YOU HOPE THAT WE WILL BE
ABLE TO ASSIST YOU IN OBTAINING THE RELIEF TO WHICH YOU FEEL YOU ARE
ENTITLED.
AS WE STATED IN OUR DECISION, SINCE THE CONTRACT FOR THIS JOB WAS
AWARDED TO ANOTHER CONCERN ON MAY 5, 1959, AND SINCE WE ARE INFORMED
THAT THE CONTRACTOR RECEIVING THE AWARD HAS MADE SUBSTANTIAL COMMITMENTS
AND IS PROCEEDING WITH PERFORMANCE, AND THAT AN URGENT NEED EXISTS FOR
EARLY COMPLETION, THE SITUATION IS SUCH THAT, FROM A PRACTICAL
STANDPOINT, WE WOULD NOT BE JUSTIFIED IN DIRECTING CANCELLATION OF THE
CONTRACT, EITHER IN WHOLE OR IN PART, AS YOU REQUEST. HOWEVER, AS WE
LATER ADVISED YOU IN OUR MEETINGS ON THE MATTER, WE ARE INITIATING AN
INVESTIGATION OF THE ENTIRE CASE AND, OF COURSE, ANY FURTHER ACTION ON
OUR PART WILL BE DETERMINED BY THE RESULTS DISCLOSED BY THAT
INVESTIGATION.
B-139892, JUL. 17, 1959
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED JUNE 10, 1959, WITH ENCLOSURES,
FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS) CONCERNING AN ERROR
IN BID WESTINGHOUSE ELECTRIC SUPPLY COMPANY, WASHINGTON, D.C., ALLEGED
AFTER AWARD OF CONTRACT NO. DA-44-008-ENG-1268 BASED ON THE BID.
BY INVITATION TO BID NO. ENG-44-008-59-1, ISSUED JULY 8, 1958, THE
PURCHASING AND CONTRACTING OFFICE, FORT BELVOIR, VIRGINIA, SOLICITED
BIDS FOR FURNISHING TWO ITEMS OF CABLE TO BE DELIVERED F.O.B. FORT
BELVOIR, VIRGINIA. IN RESPONSE THERETO, ONLY TWO BIDS WERE RECEIVED,
THE AGGREGATE LOW BID OF $1,876.48 FOR BOTH ITEMS BEING FROM
WESTINGHOUSE ELECTRIC SUPPLY COMPANY WHICH INCLUDED A PRICE OF $1,675
(REEL DEPOSIT $37) ON ITEM NO. 1 DESCRIBED IN THE INVITATION, AS
FOLLOWS:
"CABLE; ASBESTOS--- VARNISHED COMBRIC INSULATED POWER CABLE,
3-CONDUCTOR STRANDED, BURIAL TYPE, AVML-LEAD SHEATHED, A.W.G. 2/0 600
VOLT (MINIMUM 440 VOLT) 120 AMP, 110 DEGREES C, TO BE IN 1 (ONE) PIECE
1000 FEET LONG.'
THE CONTRACTING OFFICER REPORTS THAT THE BID OF $1,675 (REEL DEPOSIT
$37) ON ITEM NO. 1 FROM WESTINGHOUSE ELECTRIC SUPPLY COMPANY WAS
PATENTLY DISPROPORTIONATE TO THE ONLY OTHER BID--- $2,771 (ITEM 1 REEL
DEPOSIT $60/--- RECEIVED ON THAT ITEM SINCE IT WAS 62 PERCENT THEREOF;
THAT WESTINGHOUSE ELECTRIC SUPPLY COMPANY WAS, THEREFORE, PROMPTLY
REQUESTED TO VERIFY ITS PROPOSAL IN ITEM NO. 1, BEING ADVISED AT THE
TIME THAT ITS PRICE SEEMED VERY LOW; THAT THE COMPANY IMMEDIATELY
VERIFIED AND CONFIRMED ITS BID; AND THAT THE LOW BID OF WESTINGHOUSE
ELECTRIC SUPPLY COMPANY WAS THEN ACCEPTED BY HIM AND AWARD OF CONTRACT
NO. DA-44-008-ENG-1268 WAS ISSUED AUGUST 19, 1958, IN THE AGGREGATE
AMOUNT OF $1,876.48 COVERING BOTH ITEMS NOS. 1 AND 2.
AFTER AWARD, WESTINGHOUSE ELECTRIC SUPPLY COMPANY IN LETTER DATED
SEPTEMBER 23, 1958, TO THE CONTRACTING OFFICER REQUESTED THAT ITS
CONTRACT BE CANCELED, BECAUSE OF AN ERRONEOUS QUOTATION ON THE MATERIAL
COVERED BY ITEM NO. 1 ALLEGED BY ITS SUPPLIER, CRESCENT INSULATED WIRE
AND CABLE COMPANY, AND ADVICE BY ITS SUPPLIER THAT THEY WERE UNABLE TO
FURNISH THE ASBESTOS VARNISHED AND LEAD CABLE AS REQUIRED SINCE THEY
WERE NOT LICENSED TO MANUFACTURE THAT TYPE OF CABLE. HOWEVER, IN A
LATER LETTER DATED OCTOBER 3, 1958, TO THE CONTRACTING OFFICER, THE
CONTRACTOR ADVISED THAT IT HAD MADE AN AGREEMENT WITH ANACONDA WIRE AND
CABLE COMPANY WHEREBY THEY WOULD APPLY CABLE AS REQUIRED BY ITEM NO. 1
FOR A TOTAL PRICE OF $2,700; THAT IT WOULD DO EVERYTHING TO EXPEDITE
PROMPT FULFILLMENT OF THE CONTRACT; AND THAT ANY CONSIDERATION WHICH
MIGHT BE GIVEN IT WOULD BE APPRECIATED. IN LETTERS DATED OCTOBER 21 AND
23, 1958, THE CONTRACTOR AGAIN ALLEGED THAT AN ERROR HAD BEEN MADE,
EXPLAINED THE CIRCUMSTANCES OF THE ERROR, AND REQUESTED AN INCREASE IN
ITS CONTRACT PRICE OF $1,025 ON ITEM NO. 1. THE CONTRACTOR STATED ALSO
THAT AT THE TIME IT WAS REQUESTED TO VERIFY ITS BID THE EXACT DOLLAR
AMOUNT OF THE DIFFERENCE BETWEEN ITS BID AND THE OTHER BID ON ITEM NO. 1
"NATURALLY" WAS NOT CALLED TO ITS ATTENTION, BUT AS IT WAS AWARE THAT
ITS SUPPLIER HAD DELIBERATELY QUOTED A PRICE APPROXIMATELY $300 LOWER
THAN THE STANDARD PRICE FOR VARNISHED CAMBRIC AND LEAD CABLE IT ASSUMED
THAT THIS DIFFERENCE ACCOUNTED FOR THE INQUIRY; AND THAT IT WAS NOT
UNTIL AFTER THE AWARD AND ITS ORDER HAD REACHED THE FACTORY THAT THE
SUPPLIER REALIZED THEIR ERROR AND ADVISED IT THEREOF. WESTINGHOUSE
ELECTRIC SUPPLY COMPANY STEADFASTLY MAINTAINED THAT IN ITS TELEPHONE
CONVERSATION WITH ITS SUPPLIER'S LOCAL REPRESENTATIVE "ASBESTOS" CABLE
WAS ORDERED. THE CONTRACTOR PLEADED THAT SINCE IT DID NOT MAKE THE
ORIGINAL ERROR ITS REQUEST FOR AN INCREASE IN THE CONTRACT SHOULD BE
CONSIDERED IN ORDER THAT IT MIGHT NOT REALIZE SUCH A LARGE LOSS ON THE
TRANSACTION AND, IN SUPPORT OF ITS REQUEST, SUBMITTED A CERTIFIED
STATEMENT BY THE REPRESENTATIVE OF ITS ORIGINAL SUPPLIER TO THE EFFECT
THAT THE ERROR WAS MADE IN HIS OFFICE AND NOT BY WESTINGHOUSE ELECTRIC
SUPPLY COMPANY, AND COPIES OF ITS PURCHASE ORDER TO ANACONDA WIRE AND
CABLE COMPANY AND OF THE LATTER'S QUOTATION FOR SUPPLYING THE CABLE
MEETING THE CONTRACT REQUIREMENTS.
THE CONTRACTOR'S PROPOSAL IS FOR MODIFICATION OF THE CONTRACT BY
INCREASING THE CONTRACT PRICE ON ITEM NO. 1 TO $2,700, PLUS $37 REEL
DEPOSIT, AND THE AGGREGATE CONTRACT PRICE FOR BOTH ITEMS NOS. 1 AND 2 TO
$2,901.48.
IN THE PRESENT CASE, THERE WAS NO MUTUAL MISTAKE. IN FACT, THE
RECORD ESTABLISHES THAT THERE WAS NO MISTAKE, AS SUCH, IN THE BID OF
WESTINGHOUSE ELECTRIC SUPPLY COMPANY, ITS BID AND THE ACCEPTANCE THEREOF
BEING EXACTLY AS INTENDED. THE ALLEGED MISTAKE WAS ONE ON THE PART OF
THE CONTRACTOR'S SUPPLIER ONLY WHICH, UNDER THE CIRCUMSTANCES, AFFORDS
NO GROUND FOR RELIEF. SEE 31 COMP. GEN. 479. MOREOVER, THE CONTRACTING
OFFICER, IN HIS REPORT COVERING THE CONTRACT TRANSACTIONS, STATES THAT
NOTWITHSTANDING ITS ALLEGATION OF MISTAKE AND REQUEST FOR RELIEF,
WESTINGHOUSE ELECTRIC SUPPLY COMPANY HAD FULLY AND SATISFACTORILY
PERFORMED THE CONTRACT. IN THIS CONNECTION, SEE THE CASE OF BOARD OF
TRUSTEES OF NATIONAL TRAINING SCHOOL FOR BOYS V. O. D. WILSON CO.,
INC., 133 F.2D 399, WHEREIN THE COURT STATED THAT THE APPELLEE COULD NOT
PERFORM THE CONTRACT AND THEN REPUDIATE THE CONTRACT AND RECOVER AS IF
THERE HAD BEEN NONE.
WHILE WE NOTE THE RECOMMENDATIONS OF THE CONTRACTING OFFICER AND OF
THE LEGAL DIVISION (ENGINEERS) FOR MODIFICATION OF THE CONTRACT, YET AN
EXAMINATION OF THE FACTS IN THIS CASE WOULD NOT SEEM TO WARRANT US
AUTHORIZING SUCH MODIFICATION, PARTICULARLY IN VIEW OF THE VERIFICATION
OF THE BID BY THE CONTRACTOR PRIOR TO AWARD AND, ALSO, SINCE THERE WAS
ONLY ONE OTHER BID.
ACCORDINGLY, CONTRACT NO. DA-44-008-ENG-1268 MAY NOT BE REFORMED TO
INCREASE THE PRICE STATED THEREIN.
B-139971, JUL. 17, 1959
TO THE SECRETARY OF AGRICULTURE:
REFERENCE IS MADE TO A LETTER DATED JUNE 19, 1959, AND ENCLOSURES,
FROM THE ADMINISTRATIVE ASSISTANT SECRETARY OF AGRICULTURE REQUESTING A
DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR MITTS AND
MERRILL, INC., ALLEGES IT MADE IN ITS BID ON WHICH A CONTRACT WAS
AWARDED TO THAT COMPANY ON MAY 12, 1959.
BY INVITATION NO. R2-59-48, ISSUED APRIL 9, 1959, THE UNITED STATES
DEPARTMENT OF AGRICULTURE, FOREST SERVICE, LINCOLN, NEBRASKA, REQUESTED
BIDS FOR ONE PORTABLE TRAILER MOUNTED CHIPPER. IN RESPONSE, MITTS AND
MERRILL, INC., SUBMITTED A BID OF $2.732, WITH PROMPT PAYMENT DISCOUNT
OF 19 PERCENT FOR PAYMENT WITHIN 30 CALENDAR DAYS, OR A NET PRICE OF
$2,212.92. THE OTHER TWO BIDS RECEIVED WERE $2,650 AND $2.926, NET.
AWARD WAS MADE TO MITTS AND MERRILL, INC., MAY 12, 1959. IT IS STATED
THAT IMMEDIATELY ON RECEIVING THE NOTICE OF AWARD, THE CONTRACTOR
ADVISED THE CONTRACTING OFFICER THAT IT HAD MADE AN ERROR IN ITS BID IN
THAT IT HAD INTENDED TO BID $3,373, LESS DISCOUNT OF 19 PERCENT FOR
PAYMENT WITHIN 30 DAYS, OR A NET OF $2,732.13. BY LETTER OF MAY 22,
1959, THE COMPANY FURNISHED ITS ORIGINAL WORKSHEET, ITS COPY OF THE
INVITATION AND ITS PRICE LIST DATED JANUARY 20, 1959. THE WORKSHEET
SHOWS THAT ITS BID WAS INTENDED AS $3,373, LESS DISCOUNT OF 19 PERCENT
FOR PAYMENT WITHIN 30 DAYS. THE BASIC PART OF THE CHIPPER, THE ENGINE,
WAS LISTED ON THE COMPANY'S PRICE LIST AS $3,125. THIS PRICE WAS USED
ON THE COMPANY'S WORKSHEET IN ARRIVING AT THE BID OF $3,373.
THE CONTRACTING OFFICER STATED THAT THE DIFFERENCE BETWEEN THE BIDS
RECEIVED WAS NOT CONSIDERED SUFFICIENT TO PLACE THE CONTRACTING OFFICER
ON NOTICE THAT AN ERROR HAD BEEN MADE, OR THAT THE LOWEST BID RESULTED
BY REASON OF A MISTAKE MADE ON THE PART OF THE BIDDER.
IN THE SPACE PROVIDED IN THE BID FORM FOR SHOWING THE RATES OF PROMPT
PAYMENT DISCOUNT, THE COMPANY OFFERED A DISCOUNT OF 19 PERCENT FOR
PAYMENT WITHIN 30 DAYS. A PROMPT PAYMENT DISCOUNT OF 19 PERCENT WOULD
APPEAR TO BE OUT OF ALL PROPORTION TO THE PERCENTAGE OF DISCOUNT
GENERALLY ALLOWED ON A TIME OR PROMPT-PAYMENT BASIS. IN THE
CIRCUMSTANCES, IT WOULD APPEAR THAT A REQUEST FOR VERIFICATION OF THE
BID WOULD HAVE BEEN IN ORDER BEFORE ITS ACCEPTANCE. IT APPEARS PROBABLE
THAT IF THE BID HAD BEEN QUESTIONED, THE COMPANY WOULD HAVE DETECTED ITS
ERROR IN SHOWING THE CONTRACT PRICE AS $2,732.
ACCORDINGLY, THE CONTRACT SHOULD BE CANCELED WITHOUT LIABILITY TO THE
COMPANY.
B-139991, JUL. 17, 1959
TO MR. JOSEPH F. CARROLL:
IN YOUR RECENT UNDATED LETTER, POSTMARKED JUNE 1, 1959, YOU REQUEST
REVIEW OF OUR CLAIMS DIVISION SETTLEMENT DATED MAY 26, 1959, WHICH
DISALLOWED YOUR CLAIM FOR RETROACTIVE PAYMENT FOR MILITARY LEAVE.
THE RECORD SHOWS THAT YOU WERE PLACED ON MILITARY FURLOUGH (WHICH FOR
THIS PURPOSE HAS THE SAME EFFECT AS SEPARATION FOR MILITARY SERVICE)
FROM YOUR CIVILIAN POSITION ON NOVEMBER 15, 1948, AND THAT YOU SERVED ON
ACTIVE MILITARY DUTY FROM THAT DATE UNTIL JUNE 12, 1953. YOU WERE
CONTINUED IN A MILITARY FURLOUGH STATUS FROM YOUR CIVILIAN POSITION
UNTIL JULY 13, 1953, ON WHICH DATE YOU WERE REEMPLOYED BY THE INTERNAL
REVENUE SERVICE. OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM BECAUSE YOUR
ACTIVE MILITARY DUTY EXTENDED BEYOND FOUR YEARS AND THERE WAS NO SHOWING
THAT YOU WERE UNABLE TO OBTAIN RELEASE ORDERS SOONER. IN YOUR REQUEST
FOR REVIEW, YOU ASK "WHAT TYPE OF CERTIFICATION AND FROM WHOM IN THE
NAVY DEPARTMENT WILL MEET THE REQUIREMENTS TO SHOW THAT I COULD NOT BE
RELEASED AT ANY EARLIER DATE.'
AS POINTED OUT IN THE SETTLEMENT, A STATUS AS "AN OFFICER OR EMPLOYEE
OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA" AT THE TIME OF
ENTITLEMENT IN A NECESSARY REQUISITE TO AN INDIVIDUAL'S RIGHT TO RECEIVE
PAY FOR MILITARY LEAVE. WHEN THE EMPLOYEE WAS ALREADY ON ACTIVE
MILITARY DUTY ON JANUARY 1, 1953, THE EFFECTIVE DATE OF THE ARMED FORCES
RESERVE ACT OF 1952, HIS INITIAL "TIME OF ENTITLEMENT" TO MILITARY LEAVE
UNDER THE TERMS OF THAT ACT MUST BE CONSIDERED TO HAVE BEGUN ON THAT
DATE. HOWEVER, AN EMPLOYEE-RESERVIST SEPARATED FOR MILITARY SERVICE OR
ON MILITARY FURLOUGH CANNOT BE CONSIDERED TO ALSO HAVE A CIVILIAN
OFFICER OR EMPLOYEE STATUS WHILE SERVING ON ACTIVE DUTY EXCEPT BY VIRTUE
OF THE PROVISIONS OF 50 U.S.C. 459 (G) (2) AND 459 (C). THESE SECTIONS
TOGETHER REQUIRE THAT STATUS TO BE IMPUTED RETROACTIVELY TO THE EMPLOYEE
BUT ONLY IF HE IS ENTITLED UNDER THOSE SECTIONS TO RESTORATION TO HIS
CIVILIAN POSITION AND IS RESTORED, HAVING SERVED NO LONGER THAN FOUR
YEARS ON ACTIVE DUTY OR WAS RELEASED "AS SOON AFTER THE EXPIRATION OF
SUCH FOUR YEARS AS HE IS ABLE TO OBTAIN ORDERS RELIEVING HIM FROM ACTIVE
DUTY.'
THUS, WITHOUT A SHOWING THAT YOU WERE UNABLE TO OBTAIN RELEASE ORDERS
FROM THE NAVY BEFORE OR AT THE EXPIRATION OF FOUR YEARS SERVICE AND THAT
YOUR ACTUAL RELEASE DATE OF JUNE 12, 1953, WAS IN FACT THE EARLIEST DATE
FOR WHICH YOU WERE ABLE TO OBTAIN RELEASE ORDERS, YOU WERE NOT ENTITLED
AS A MATTER OF RIGHT TO RESTORATION TO YOUR FORMER POSITION,
NOTWITHSTANDING THE FACT THAT THE TREASURY DEPARTMENT CHOSE TO TREAT
YOUR REEMPLOYMENT AS A "RESTORATION.' NOT HAVING A "RIGHT" TO
RESTORATION, YOU HAD NO RIGHT TO HAVE THE STATUS OF CIVILIAN OFFICER OR
EMPLOYEE RETROACTIVELY IMPUTED TO YOU FOR THE PERIOD YOU WERE IN
MILITARY SERVICE. THEREFORE, SINCE THERE IS NO SUCH RIGHT IN YOUR CASE
TO WHICH ENTITLEMENT TO MILITARY LEAVE AFTER JANUARY 1, 1953, COULD
ATTACH, THE SETTLEMENT DISALLOWING YOUR CLAIM MUST BE AND IS HEREBY
SUSTAINED.
CONCERNING YOUR QUESTION AS TO WHAT TYPE OF CERTIFICATION WOULD MEET
THE REQUIREMENTS OF THE STATUTE, WE CANNOT PRESCRIBE SPECIFICALLY ON
THAT POINT. IT WOULD APPEAR, HOWEVER, THAT NORMALLY A BASIC REQUIREMENT
WOULD BE A SHOWING THAT THE INDIVIDUAL HAD ACTUALLY REQUESTED TO BE
RELEASED BEFORE OR AT THE EXPIRATION OF FOUR YEARS SERVICE AND THAT HIS
REQUEST WAS OFFICIALLY DENIED BY THE PROPER COMMANDER HAVING FINAL
AUTHORITY TO DO SO. EVIDENCE OF THOSE ACTIONS, IF TAKEN, SHOULD
CONSTITUTE A PART OF YOUR OFFICIAL RECORD ON FILE IN THE DEPARTMENT
OF THE NAVY.
B-127051, JUL. 16, 1959
TO COLONEL STEVE J. GADLER, USAF, RETIRED:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 4, 1959, IN EFFECT
REQUESTING REVIEW OF YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL OF YOUR
DEPENDENT MOTHER BY COMMERCIAL AIR FROM WIESBADEN, GERMANY, TO RAPID
CITY, SOUTH DAKOTA, IN APRIL 1948. YOUR CLAIM WAS DISALLOWED BY OUR
SETTLEMENT DATED MAY 12, 1954.
YOU WERE TRANSFERRED TO DUTY OVERSEAS BY PARAGRAPH 6, SPECIAL ORDERS
NO. 339, DATED DECEMBER 5, 1946, CAMP KILMER, NEW JERSEY. BY TRAVEL
AUTHORIZATION OF DEPENDENTS DATED MAY 27, 1947, YOUR WIFE AND SON
RESIDING IN ST. PAUL, MINNESOTA, AND YOUR MOTHER RESIDING IN LEAD, SOUTH
DAKOTA, WERE AUTHORIZED TO PROCEED TO A PORT OF EMBARKATION FOR
TRANSPORTATION TO WIESBADEN, GERMANY, YOUR OVERSEAS STATION, IN
ACCORDANCE WITH THE PROVISIONS OF WAR DEPARTMENT CIRCULAR NO. 391, DATED
DECEMBER 29, 1945. IT APPEARS THAT YOU RETURNED TO THE UNITED STATES
FROM YOUR OVERSEAS ASSIGNMENT IN JUNE 1950, UNDER CHANGE OF STATION
ORDERS DATED MAY 24, 1950. YOUR MOTHER'S RETURN TRAVEL MORE THAN TWO
YEARS PRIOR TO YOUR CHANGE OF STATION ORDERS, WAS STATED TO HAVE BEEN
PERFORMED ON THE ADVICE OF HER PHYSICIAN, DR. VERNON D. E. SMITH, OF
ST. PAUL, MINNESOTA, THAT SHE RETURN TO HER HOME IN SOUTH DAKOTA FOR
REASONS OF HEALTH. THE RECORD INDICATES THAT NO ORDERS WERE ISSUED TO
AUTHORIZE THAT TRAVEL.
AT THE TIME THE TRAVEL IN QUESTION WAS PERFORMED THE BASIC AUTHORITY
FOR TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES
WAS CONTAINED IN SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56
STAT. 364, WHICH AUTHORIZED TRANSPORTATION OF DEPENDENTS TO THE NEW DUTY
STATION "WHEN" THE MEMBER WAS ORDERED TO MAKE A PERMANENT CHANGE OF
STATION. NO RIGHT TO TRANSPORTATION OF DEPENDENTS COULD ACCRUE TO A
MEMBER UNDER SUCH PROVISION PRIOR TO THE ISSUANCE OF ORDERS DIRECTING A
CHANGE OF HIS PERMANENT STATION, AND CONSEQUENTLY IT CANNOT BE
CONSIDERED AS AUTHORITY FOR THE TRAVEL OF YOUR MOTHER IN 1948 INASMUCH
AS YOUR CHANGE OF STATION ORDERS WERE NOT ISSUED UNTIL MAY 24, 1950.
THERE ALSO WAS IN EFFECT AT THAT TIME THE MILITARY APPROPRIATION ACT
OF 1948, 61 STAT. 551, 554, WHICH PROVIDED THAT SUCH DEPENDENTS OF
MILITARY AND CIVILIAN PERSONNEL IN AND UNDER THE MILITARY ESTABLISHMENT
ON DUTY AT OVERSEAS STATIONS, AS MIGHT BE DETERMINED BY THE SECRETARY OF
WAR, COULD, PRIOR OR SUBSEQUENT TO THE ISSUANCE OF ORDERS FOR THE RELIEF
OF SUCH PERSONNEL FROM THEIR STATIONS, BE FURNISHED TRANSPORTATION TO
THE UNITED STATES AT GOVERNMENT EXPENSE. WAR DEPARTMENT CIRCULAR NO.
83, MARCH 22, 1946, PROMULGATED UNDER A SIMILAR PROVISION IN AN EARLIER
APPROPRIATION ACT AND CONTINUED IN EFFECT AT THE TIME HERE INVOLVED,
AUTHORIZED THE MOVEMENT AT GOVERNMENT EXPENSE FROM OVERSEAS STATIONS OF
"SPOUSES AND CHILDREN" WHO WERE ACQUIRED BY PERSONNEL WHILE ON DUTY
OVERSEAS. CIRCULAR NO. 83 FURTHER SPECIFICALLY PROVIDED THAT DEPENDENTS
MOVED FROM THE UNITED STATES TO AN OVERSEAS STATION UPON PERMANENT
CHANGE OF STATION UNDER CIRCULAR NO. 391 OF DECEMBER 29, 1945, WERE NOT
WITHIN ITS SCOPE, THAT IS, THEY WERE NOT ENTITLED TO TRANSPORTATION TO
THE UNITED STATES PRIOR TO THE RETURN OF THE PERSON ON WHOM DEPENDENCY
WAS CLAIMED. THUS, YOUR
DEPENDENT MOTHER CLEARLY WAS NOT INCLUDED IN THE DEPENDENTS
DETERMINED BY THE SECRETARY OF WAR AS ENTITLED TO TRANSPORTATION UNDER
THE 1948 APPROPRIATION ACT.
ACCORDINGLY, YOU ARE ADVISED THAT THERE IS NO LEGAL BASIS FOR THE
PAYMENT OF YOUR CLAIM. THE SETTLEMENT OF MAY 12, 1954, WAS CORRECT AND
IS SUSTAINED.
B-137210, JUL. 16, 1959
TO MR. THOMAS STACEY BUBIER:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 26, 1959, CONCERNING OUR
LETTER OF SEPTEMBER 9, 1958, TO THE HONORABLE OLIN E. TEAGUE WITH
RESPECT TO H.R. 13794, 85TH CONGRESS,"A BILL TO AMEND SECTION 302 OF THE
SOLDIERS AND SAILORS CIVIL RELIEF ACT OF 1940 WITH RESPECT TO THE METHOD
OF FORECLOSURE OF MORTGAGES, AND FOR OTHER PURPOSES" WHICH IS THE
SUBJECT OF A SIMILAR BILL, H.R. 6636, INTRODUCED IN THE 86TH CONGRESS.
THE CURRENT BILL EMBODIES SEVERAL MODIFICATIONS WHICH CONFORM WITH
OUR COMMENTS ON H.R. 13794 AND, AS INDICATED IN YOUR LETTER, ITS
PROVISIONS REPRESENT AN IMPROVEMENT OVER THOSE OF THE PREVIOUSLY
PROPOSED BILL.
YOUR OBSERVATION THAT "THE SERVICEMAN OUGHT NOT TO BE ABLE TO CLAIM
THE RELIEF AFFORDED BY THE STATUTE UNLESS HE SHOWS ON RECORD THAT HE IS
ENTITLED TO IT" SEEMS TO BE A REASONABLE ONE. HOWEVER, IN OUR OPINION,
SUCH FACT WOULD NOT JUSTIFY LEGISLATIVE ACTION WHEREBY THE JUST AND
EQUITABLE RIGHTS OF OTHERS DERIVED FROM THE SERVICEMAN MAY BE IMPAIRED
OR CUT OFF EVEN THOUGH, AS YOU SUGGEST, SUCH HARDSHIP CASES MIGHT BE FEW
IN NUMBER.
WE APPRECIATE YOUR INTEREST IN THIS PROPOSED LEGISLATION AND THE
VIEWS AND COMMENTS YOU HAVE MADE.
B-138784, JUL. 16, 1959
GENERAL EXHIBITS AND DISPLAYS, INC. :
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 29, 1959, WITH REGARD
TO THE AWARD OF A CONTRACT TO HARTWIG DISPLAYS, DIVISION OF HARTWIG,
INC., UNDER REQUEST FOR QUOTATION NO. QM 44-109-59-NEG-71 ISSUED BY THE
PURCHASING DIVISION, CAMERON STATION QUARTERMASTER ACTIVITIES,
ALEXANDRIA, VIRGINIA, ON OCTOBER 3, 1958.
IN OUR DECISION OF MAY 22, 1959, WE HELD THAT WE COULD FIND NO PROPER
BASIS FOR DIRECTING THE CANCELLATION OF THE AWARD MADE TO HARTWIG
DISPLAYS. THE SUBSTANCE OF YOUR LETTER OF MAY 29 IS THAT THE CONTRACTOR
HAS REQUESTED AN ADDITIONAL AMOUNT OF APPROXIMATELY $11,000 TO COMPLETE
THE CONTRACT IN ACCORDANCE WITH THE ARMY'S SPECIFICATIONS AND THAT THIS
INDICATES THAT THE ,AWARD-WINNING FIRM" QUOTED ON SPECIFICATIONS
DIFFERENT FROM THOSE ON WHICH YOU HAD SUBMITTED YOUR BID.
YOUR LETTER WAS REFERRED TO THE SECRETARY OF THE ARMY FOR A REPORT AS
TO THE CORRECTNESS OF YOUR CONTENTIONS. THAT REPORT HAS NOW BEEN
RECEIVED AND IS TO THE EFFECT THAT THE CONTRACTING OFFICER HAS STATED
CATEGORICALLY THAT HARTWIG HAS NOT REQUESTED ANY ADDITIONAL FUNDS TO
COMPLETE THE CONTRACT IN ACCORDANCE WITH THE SPECIFICATIONS AND THAT
THERE IS NO EVIDENCE THAT ANY GOVERNMENT OFFICIAL SO ADVISED YOU. IT IS
STATED, HOWEVER, THAT TECHNICAL PERSONNEL OF THE ARMY ORDNANCE CORPS DID
DISCUSS WITH THE CONTRACTOR THE MATTER OF CERTAIN ADDITIONAL WORK FOR
WHICH HE GAVE AN INFORMAL ESTIMATE OF $11,000 BUT IT WAS DECIDED NOT TO
REQUEST PROCUREMENT OF THIS ADDITIONAL WORK.
WITH REGARD TO YOUR CONTENTION THAT THE CONTRACTOR QUOTED ON
SPECIFICATIONS DIFFERENT FROM THOSE YOU USED AS A BASIS OF YOUR
QUOTATION, IT IS REPORTED THAT THE PROCUREMENT WAS PREPARED AND
FURNISHED TO THE CONTRACTING OFFICER BY THE ARMY EXHIBIT UNIT AND THAT
THE FURTHER EXPLANATION OF THE MINIMUM NEEDS OF THE GOVERNMENT, AS
STATED IN THE CONTRACTING OFFICER'S LETTER OF DECEMBER 18, 1958, AND
SENT TO ALL INTERESTED CONCERNS, WAS APPROVED BY THE ARMY EXHIBIT UNIT.
IT IS REPORTED FURTHER THAT PERSONNEL OF THE ARMY EXHIBIT UNIT HAVE
STATED THAT ANY TECHNICAL INFORMATION FURNISHED BY THEM TO YOU, AS WELL
AS THAT FURNISHED TO ANY OTHER INTERESTED FIRM, WAS IN ACCORD WITH THE
SPECIFICATION AND EXPLANATIONS USED BY THE CONTRACTING OFFICER. IN THE
ABSENCE OF CONVINCING EVIDENCE TO THE CONTRARY, WE MUST ACCEPT THE
REPORT OF THE ADMINISTRATIVE OFFICE ON THIS MATTER.
ACCORDINGLY, OUR OFFICE CANNOT FIND ANY BASIS FOR HOLDING THAT THE
AWARD OF THE CONTRACT WAS IMPROPER.
B-138940, JUL. 16, 1959
TO THE SECRETARY OF LABOR:
YOUR LETTER OF MARCH 6, 1959, REQUESTS A DECISION WHETHER THE
REASONABLE EXPENSES INCURRED BY THE DEPARTMENT OF THE TREASURY IN
ADMINISTERING THE TEMPORARY UNEMPLOYMENT COMPENSATION ACT OF 1958, 72
STAT. 171, ARE RECOVERABLE UNDER SECTION 104 (A) OF THAT ACT. IF OUR
ANSWER IS IN THE NEGATIVE YOU REQUEST A DECISION WHETHER THE REFERRED-TO
EXPENSES ARE "EMPLOYMENT SECURITY ADMINISTRATIVE EXPENDITURES" WITHIN
THE MEANING OF SECTION 901 (B) OF TITLE IX OF THE SOCIAL SECURITY ACT,
AS AMENDED, 42 U.S.C. 1101 (B).
SECTION 104 (A) OF THE TEMPORARY UNEMPLOYMENT COMPENSATION ACT OF
1958 PROVIDES:
"THE TOTAL CREDITS ALLOWED UNDER SECTION 3302 (C) OF THE FEDERAL
UNEMPLOYMENT TAX ACT (26 U.S.C. 3302 (C) TO TAXPAYERS WITH RESPECT TO
WAGES ATTRIBUTABLE TO A STATE FOR THE TAXABLE YEAR BEGINNING ON JANUARY
1, 1963, AND FOR EACH TAXABLE YEAR THEREAFTER, SHALL BE REDUCED IN THE
SAME MANNER AS THAT PROVIDED BY SECTION 3302 (C) (2) OF THE FEDERAL
UNEMPLOYMENT TAX ACT FOR THE REPAYMENT OF ADVANCES MADE UNDER TITLE XII
OF THE SOCIAL SECURITY ACT, AS AMENDED (42 U.S.C. 1321 ET SEQ.), UNLESS
OR UNTIL THE SECRETARY OF THE TREASURY FINDS THAT BY DECEMBER 1 OF THE
TAXABLE YEAR THERE HAVE BEEN RESTORED TO THE TREASURY THE AMOUNTS OF
TEMPORARY UNEMPLOYMENT COMPENSATION PAID IN THE STATE UNDER THIS ACT
(EXCEPT AMOUNTS PAID TO INDIVIDUALS WHO EXHAUSTED THEIR UNEMPLOYMENT
COMPENSATION UNDER TITLE XV OF THE SOCIAL SECURITY ACT AND TITLE IV OF
THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952 PRIOR TO THEIR MAKING
THEIR FIRST CLAIMS UNDER THIS ACT), THE AMOUNT OF COSTS INCURRED IN THE
ADMINISTRATION OF THIS ACT WITH RESPECT TO THE STATE, AND THE AMOUNT
ESTIMATED BY THE SECRETARY OF LABOR AS THE STATE'S PROPORTIONATE SHARE
OF OTHER COSTS INCURRED IN THE ADMINISTRATION OF THIS ACT.'
AS INDICATED IN YOUR LETTER, WHETHER EXPENSES INCURRED BY THE
DEPARTMENT OF THE TREASURY IN ADMINISTERING THE TEMPORARY UNEMPLOYMENT
COMPENSATION ACT OF 1958 ARE RECOVERABLE UNDER SECTION 104 (A) OF THE
ACT WOULD APPEAR TO DEPEND ON WHETHER SUCH EXPENSES MAY BE CONSIDERED
"OTHER OSTS" WITHIN THE MEANING OF THAT PHRASE AS USED THEREIN.
THE TWO CATEGORIES OF ADMINISTRATIVE COSTS (AS DISTINGUISHED FROM
AMOUNTS OF TEMPORARY UNEMPLOYMENT COMPENSATION) SPECIFICALLY REFERRED TO
IN SECTION 104 (A) AND RECOVERABLE FROM THE STATES THEREUNDER ARE (1)
"THE AMOUNT OF COSTS INCURRED IN THE ADMINISTRATION OF THIS ACT WITH
RESPECT TO THE STATE," AND (2) "THE AMOUNT ESTIMATED BY THE SECRETARY OF
LABOR AS THE STATE'S PROPORTIONATE SHARE OF OTHER COSTS INCURRED IN THE
ADMINISTRATION OF THIS ACT.' AS INDICATED IN YOUR LETTER THE TERM "OTHER
COSTS" AS USED IN SECTION 104 (A) APPARENTLY IS INTENDED TO DESCRIBE ALL
FEDERAL COSTS INCURRED IN ADMINISTERING THE ACT WHICH ARE NOT
ATTRIBUTABLE TO ANY PARTICULAR STATE. IN ANY EVENT THE TERM IS NOT
LIMITED AND IS BROAD ENOUGH TO ENCOMPASS ANY FEDERAL ADMINISTRATIVE
COSTS NOT INCURRED WITH RESPECT TO A PARTICULAR STATE. THUS IT WOULD
APPEAR TO ENCOMPASS COSTS INCURRED BY THE DEPARTMENT OF THE TREASURY
UNDER THE ACT.
FURTHER, THE LEGISLATIVE HISTORY OF H.R. 12065, WHICH BECAME THE
TEMPORARY UNEMPLOYMENT COMPENSATION ACT OF 1958, DISCLOSES THAT THE BILL
AS ORIGINALLY REPORTED OUT BY THE HOUSE COMMITTEE ON WAYS AND MEANS DID
NOT CONTAIN A REPAYMENT PROVISION SUCH AS SECTION 104 (A). SECTION 104
(A) WAS ONE OF THE PROVISIONS OF AN AMENDMENT IN THE NATURE OF A
SUBSTITUTE OFFERED BY MR. HERLONG, WHICH STRUCK OUT EVERYTHING AFTER THE
ENACTING CLAUSE OF H.R. 12065. THE PROPOSED AMENDMENT IN THE NATURE OF
A SUBSTITUTE WAS SUBSEQUENTLY ENACTED INTO LAW. APPARENTLY THE PURPOSE
OF THE REPAYMENT PROVISION (SECTION 104 (A) ( WAS TO INSURE THAT FEDERAL
FUNDS EXPENDED UNDER THE ACT (EXCEPT THOSE AMOUNTS SPECIFICALLY EXCEPTED
BY SECTION 104 (A) ( INCLUDING FUNDS EXPENDED FOR ADMINISTRATIVE COSTS
WOULD BE RECOVERED FROM THE PARTICIPATING STATES. NOTE IN CONNECTION
WITH THE REPAYMENT PROVISION THE COMPARISON OF PROVISIONS OF H.R. 12065
AS ORIGINALLY REPORTED OUT BY THE HOUSE COMMITTEE WITH THE PROVISIONS OF
THE AMENDMENT THERETO OFFERED BY MR. HERLONG, PAGE 7106, CONGRESSIONAL
RECORD (TEMPORARY EDITION), MAY 1, 1958, AND NOTE STATEMENT ON PAGE 8562
THEREOF.
IN VIEW OF THE FOREGOING, YOU ARE ADVISED THAT EXPENSES INCURRED BY
THE DEPARTMENT OF THE TREASURY IN ADMINISTERING THE TEMPORARY
UNEMPLOYMENT COMPENSATION ACT OF 1958 ARE RECOVERABLE UNDER SECTION 104
(A) THEREOF.
B-139140, JUL. 16, 1959
TO AYTON AND ASHTON:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 27, 1959,
PROTESTING THE AWARD OF A CONTRACT BY THE PURCHASING AND CONTRACTING
SECTION OF REGION 3, FEDERAL SUPPLY SERVICE, GENERAL SERVICES
ADMINISTRATION, TO A HIGHER BIDDER ON INVITATION NO.
R2B-63740-N-R-2-13-59 DATED JANUARY 26, 1959.
IN RESPONSE TO OUR REQUEST, GENERAL SERVICES ADMINISTRATION HAS
FURNISHED A REPORT IN THE MATTER, INCLUDING COPIES OF PERTINENT PAPERS.
THE INVITATION REQUESTED BIDS--- TO BE OPENED FEBRUARY 13, 1959---
FOR FURNISHING 1,444 SQUARE FEET OF WRESTLING MATS DESCRIBED IN THE
INVITATION AS FOLLOWS:
"1. MAT, WRESTLING, FOAM, TOP, BOTTOM AND EDGES PLASTIC COATED,
MOISTURE PROOF, SURFACE STRENGTH OF NOT LESS THAN 2400 P.S.I., MAXIMUM 2
PERCENT SHRINKAGE, ELONGATION FACTOR OF NOT LESS THAN 457 AND A COATING
STRENGTH OF NOT LESS THAN 6600 POUNDS PER SQUARE INCH, TO CONSIST OF
THREE INDIVIDUAL SECTIONS, SIZE OF EACH SECTION TO BE 38 FEET BY 12
FEET--- 8 INCHES BY 1 INCH THICK, EACH SECTION TO BE EQUIPPED WITH
ADEQUATE PLASTIC HANGING STRAPS FOR HANGING MATS, COLOR: LIGHT GREEN
(BOTH SIDES), AS MANUFACTURED BY PECSOLITE EQUIPMENT COMPANY OR EQUAL.'
SPECIAL NOTICE NO. 1, ISSUED JANUARY 30, 1959, FURNISHED TO BIDDERS
FORM R3-T291, AUGUST 1958, WHICH INADVERTENTLY HAD NOT BEEN MAILED WITH
THE INVITATION. FORM R3-T291 PROVIDED:
"THIS INVITATION INCLUDES ITEM/S) REQUIRING THE BIDDER TO BID ON
BRAND NAME ARTICLES "OR UAL.' THIS IS DUE TO LACK OF SATISFACTORY
SPECIFICATION OR COMMODITY DESCRIPTION.
"SUCH REFERENCE IS INTENDED TO BE DESCRIPTIVE BUT NOT RESTRICTIVE,
AND IS FOR THE SOLE PURPOSE OF INDICATING TO PROSPECTIVE BIDDERS A
DESCRIPTION OF THE ARTICLE/S) THAT WILL BE SATISFACTORY.
"BIDS ON COMPARABLE ITEMS SIMILAR IN BASIC FUNCTIONAL RESPECTS EXCEPT
AS OTHERWISE SPECIFIED HEREIN WILL BE CONSIDERED, PROVIDED THE BIDDER
SUBMITS WITH HIS BID CUTS, ILLUSTRATIONS AND OTHER DESCRIPTIVE MATTER
WHICH WILL CLEARLY INDICATE THE CHARACTER OF THE ARTICLE OFFERED AND THE
DIFFERENCE FROM THE ARTICLE SPECIFIED. FAILURE TO FURNISH SUCH
DESCRIPTIVE LITERATURE SHALL BE CAUSE FOR REJECTION. THE BIDDER'S
ATTENTION IS SPECIFICALLY INVITED TO PROVISION 2 ENTITLED ,BRAND NAMES"
CONTAINED IN GSA FORM 1424, SUPPLEMENTAL PROVISIONS, INCORPORATED IN
SUBJECT INVITATION.
"BIDDER SHALL ACKNOWLEDGE HEREUNDER THE RECEIPT OF THIS NOTICE AND
RETURN THE SIGNED COPIES, IN DUPLICATE, WITH HIS BID.'
SPECIAL NOTICE NO. 2 ISSUED FEBRUARY 5, 1959, DELETED THAT PORTION OF
THE INVITATION REQUIRING PLASTIC HANGING STRAPS FOR HANGING MATS.
PROVISION NO. 2 OF GENERAL SERVICES ADMINISTRATION FORM 1424,
SUPPLEMENTAL PROVISIONS, REFERRED TO IN FORM R3-T291 QUOTED ABOVE
PROVIDES IN PERTINENT PART AS FOLLOWS:
"/A) GOVERNMENT-SPECIFIED BRAND NAMES.
"/1) ANY REFERENCE IN THE SCHEDULE TO MANUFACTURERS' BRAND NAMES AND
MODEL OR CATALOG NUMBERS IS DUE TO LACK OF A SATISFACTORY SPECIFICATION
OR COMMODITY DESCRIPTION. SUCH REFERENCE IS INTENDED TO BE DESCRIPTIVE,
BUT NOT RESTRICTIVE, AND IS FOR THE SOLE PURPOSE OF INDICATING TO
PROSPECTIVE BIDDERS A DESCRIPTION OF THE ARTICLES THAT WILL BE
SATISFACTORY. BIDS ON COMPARABLE ITEMS WILL BE CONSIDERED, PROVIDED THE
BIDDER STATES IN HIS BID THE EXACT ARTICLE HE IS OFFERING. (FOR THE
PURPOSE OF DESCRIBING EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH, CUTS,
ILLUSTRATIONS, AND OTHER DESCRIPTIVE MATTER WHICH WILL CLEARLY INDICATE
THE CHARACTER OF THE ARTICLE OFFERED BY THE BIDDER AND THE DIFFERENCE
FROM THE ARTICLE SPECIFIED SHALL BE INCLUDED.) IN THE ABSENCE OF SUCH
DESCRIPTIVE MATTER, IT IS UNDERSTOOD THAT THE BIDDER IS OFFERING THE
SPECIFIC ITEM NAMED IN THE INVITATION FOR BIDS.'
IN RESPONSE TO THE INVITATION, YOU SUBMITTED THE LOW BID OF $2,772.48
($1.92 PER SQUARE FOOT). THE TWO OTHER BIDS RECEIVED WERE IN THE
AMOUNTS OF $2,801.36 ($1.94 PER SQUARE FOOT) AND $3,460 ($2.39612 PER
SQUARE FOOT). UNDER DATE OF FEBRUARY 24, 1959, AWARD WAS MADE TO THE
HIGH BIDDER, FRANK A. THORNTON, THE TWO LOWER BIDS HAVING BEEN REJECTED
ON THE GROUND THAT THEY WERE NOT RESPONSIVE TO THE INVITATION. YOUR
APPEAL OF MARCH 13, 1959, TO THE ADMINISTRATOR OF GENERAL SERVICES WAS
REFERRED TO THE BOARD OF REVIEW, GENERAL SERVICES ADMINISTRATION, WHICH
HELD A HEARING ON THE APPEAL ON APRIL 28, 1959. BY ITS DECISION DATED
JUNE 15, 1959, THE BOARD OF REVIEW DENIED THE APPEAL ON THE GROUND THAT
YOUR BID, INCLUDING THE ATTACHED DESCRIPTIVE LITERATURE, WAS PROPERLY
REJECTED AS BEING NON-RESPONSIVE TO THE INVITATION.
IN YOUR BID IT WAS SPECIFICALLY STATED THAT YOU PROPOSED TO FURNISH
ENSOLITE BRAND MATS, NO. EMP, MANUFACTURED BY PREMIER ATHLETIC PRODUCTS
CORPORATION--- NOT MATS MANUFACTURED BY PECSOLITE EQUIPMENT COMPANY,
REFERRED TO IN THE INVITATION. THE PRINTED DESCRIPTIVE LITERATURE ON
ENSOLITE GYM MATS MANUFACTURED BY PREMIER ATHLETIC PRODUCTS CORPORATION
ACCOMPANYING YOUR BID CONTAINS INFORMATION IN PART AS FOLLOWS:
"MATS ARE FABRICATED TO ANY SIZE BY COMBINING THE "ENSOLITE" SHEETS
AND COVERING WITH A HEAVY, CANVAS SUPPORTED VINYL PLASTIC OR A TOUGH,
SMOOTH, LONG WEARING PAINT. BOTH OFFER EITHER SIDE OF MAT FOR USE.
"SUPPORTED PLASTIC COVER PROTECTS THE ENSOLITE FROM SCUFFING AND
KEEPS IT SANITARY. MATS SO COVERED ARE EQUIPPED WITH HANDLES FOR
HANGING AND STORING. CAN BE MADE IN GRAY, RED, BLUE, GREEN, BROWN AND
IVORY.
"PAINTED MATS ARE COMPLETELY SEALED AND THE ENSOLITE IS PROTECTED
FROM WEAR AND MOISTURE ON BOTH SIDES AND EDGES. THIS IS THE POPULAR
FINISH WHEN USED FOR BOXING AND WRESTLING. COLOR IS A NEUTRAL GRAY
ONLY. NO HANDLES ON THESE PAINTED MATS.
"NO. ENC--- 1 INCH--- PLASTIC COVER * * *
NO. ENP--- 1 INCH--- PAINT COVER * * *.'
IN THE DECISION OF THE BOARD OF REVIEW IT IS STATED:
"THE FEDERAL SUPPLY SERVICE CONTENDED THAT THE REQUISITIONING AGENCY
REQUESTED THE PURCHASE OF LIGHT GREEN WRESTLING MATS AND THAT IT WAS
THEIR UNDERSTANDING THAT THE COLOR OF THE MATS WAS AN IMPORTANT FACTOR
FROM THE VIEWPOINT OF THE REQUISITIONING AGENCY, IN THE TREATMENT AND
REHABILITATION OF PSYCHIATRIC PATIENTS. FURTHER, THAT THE OFFERING OF
NEUTRAL GRAY COLOR WAS A MAJOR DEVIATION FROM THE INVITATION FOR BIDS
AND THAT THE BID WAS NON-RESPONSIVE FOR THIS REASON.'
THE BOARD OF REVIEW HELD THAT THE FEDERAL SUPPLY SERVICE WAS
JUSTIFIED IN CONCLUDING THAT YOUR PROPOSAL TO FURNISH MATS IN A NEUTRAL
GRAY COLOR ONLY WAS A SUBSTANTIVE DEVIATION. THE BOARD CONCLUDED ALSO
THAT YOUR PROPOSAL TO FURNISH MATS HAVING A "PAINT COVER" DID NOT
FULFILL THE REQUIREMENT OF THE INVITATION FOR "PLASTIC COATED" MATS AND
JUSTIFIED REJECTION OF YOUR BID.
IT IS WELL ESTABLISHED THAT THE DRAFTING OF SPECIFICATIONS DESIGNED
TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT AND THE DETERMINATION AS TO
WHETHER THE BIDS RECEIVED ARE RESPONSIVE TO SUCH SPECIFICATION IS
PRIMARILY A RESPONSIBILITY OF THE ADMINISTRATIVE OFFICE REQUIRING THE
MATERIALS, EQUIPMENT OR SERVICES. 21 COMP. GEN. 1132, 1136. IN THE
INSTANT MATTER, IT APPEARS THAT THE EQUIPMENT SPECIFICALLY OFFERED BY
YOU DID NOT MEET THE REQUIREMENTS OF THE INVITATION WITH RESPECT TO
PLASTIC COATING AND COLOR, WHICH REQUIREMENTS MAY BE REGARDED AS
REASONABLE AND PROPER.
YOUR APPARENT VIEW THAT THE TERMS "PLASTIC COVER" AND "PAINT COVER"
ARE SYNONYMOUS APPEARS INCONSISTENT WITH THE FACT THAT THE DESCRIPTIVE
LITERATURE SUBMITTED WITH YOUR BID DISTINGUISHES BETWEEN THESE TERMS AND
DESCRIBES THE MATS WHICH YOU PROPOSED TO FURNISH (NO. ENP) AS HAVING A
PAINT COVER. MOREOVER, AS HELD BY THE BOARD OF REVIEW, YOUR CONTENTION
THAT THE SPECIFICATIONS WERE NOT CLEAR AS TO CERTAIN OTHER REQUIREMENTS
IS NOT RELEVANT TO THE MATTER NOW AT ISSUE, SINCE THE SPECIFICATIONS
WERE ENTIRELY CLEAR IN REQUIRING PLASTIC COATING AND LIGHT GREEN
COLOR--- REQUIREMENTS AS TO WHICH YOUR BID WAS NOT RESPONSIVE.
IN VIEW OF THE FOREGOING, THERE APPEARS NO PROPER BASIS UPON WHICH
OUR OFFICE MAY QUESTION THE ACTION OF THE CONTRACTING OFFICER IN
REJECTING YOUR BID.
B-139644, JUL. 16, 1959
TO MR. EDMUND L. CARTER, AUTHORIZED CERTIFYING OFFICER, UNITED STATES
OPERATIONS MISSION TO PANAMA:
YOUR LETTER OF APRIL 18, 1959, REQUESTS OUR DECISION UPON THE
PROPRIETY OF PAYING AN INSURANCE PREMIUM CLAIM SUBMITTED BY DR. JAMES G.
TOWNSEND, AN EMPLOYEE OF THE INTERNATIONAL CORPORATION ADMINISTRATION
WITH THE UNITED STATES OPERATIONS MISSION TO PANAMA.
DR. TOWNSEND SEEKS REIMBURSEMENT OF THE EXPENSES HE INCURRED, IN THE
AMOUNT OF $13.60, TO EXTEND THE COVERAGE OF HIS PERSONAL AUTOMOBILE
INSURANCE TO INCLUDE PROTECTION AGAINST LIABILITY FOR PROPERTY DAMAGE
WHILE OPERATING A GOVERNMENT-OWNED (ICA) VEHICLE ASSIGNED TO HIM. HE
STATES HE PURCHASED THE ADDITIONAL INSURANCE COVERAGE IN COMPLIANCE WITH
THE MISSION'S POLICY SET FORTH IN A BULLETIN OF JUNE 8, 1955, ENTITLED
"MISSION INFORMATION NO. 6.' THE BULLETIN STATES:
"WE HAVE BEEN INFORMED THAT IT IS POSSIBLE FOR YOU TO OBTAIN A RIDER
TO YOUR AUTOMOBILE INSURANCE POLICY WHICH WILL COVER YOU WHILE DRIVING A
CAR OTHER THAN THAT INSURED UNDER YOUR POLICY. INFORMATION INDICATES
THAT THIS RIDER WILL BE AN INEXPENSIVE PROTECTION FOR YOU IN CASE OF AN
ACCIDENT WHEN DRIVING, FOR EXAMPLE, A SERVICIO OR AN INSTITUTE CAR.
"IT IS SUGGESTED THAT YOU CONTACT YOUR LOCAL INSURANCE REPRESENTATIVE
IN ORDER TO ASCERTAIN THE COVERAGE OFFERED BY HIM AND THE COST OF SUCH
COVERAGE.'
IN CONNECTION WITH THIS CLAIM YOU REFER TO THE MISSION'S REGULATIONS
REGARDING THE USE OF GOVERNMENT-OWNED VEHICLES. THEY PROVIDE, IN PART:
"ALL ICA EMPLOYEES DESIGNATED TO DRIVE ,GOVERNMENT-OWNED" VEHICLES ARE
REQUIRED TO MEET LOCAL REQUIREMENTS FOR LIABILITY INSURANCE AND TO
POSSESS VALID CANAL ZONE AND VALID PANAMA DRIVING LICENSES.' YOU ALSO
INVITE OUR ATTENTION TO THE GOVERNMENT OF PANAMA LAW NO. 159, SEPTEMBER
19, 1941, WHICH, AS TRANSLATED, STATES: "ALL VEHICLES MOVED BY
MECHANICAL FORCE MUST BE INSURED WITH POLICIES AGAINST DAMAGE TO OTHER
PERTY.'
IT APPEARS THE GOVERNMENT-OWNED VEHICLE ASSIGNED TO DR. TOWNSEND HAS
NOT BEEN COMMERCIALLY INSURED, AND AS TO IT THE GOVERNMENT, IN KEEPING
WITH LONG ESTABLISHED POLICY, HAS ASSUMED ITS OWN RISKS. SEE 13 COMP.
DEC. 779; 4 COMP. GEN. 690; 19 ID. 798; 35 ID. 391. SEE, ALSO, IGA
MANUAL 351.1,"TORT CLAIMS.' IT FURTHER APPEARS THE ADDITIONAL INSURANCE
OBTAINED WAS NOT FOR THE PROTECTION OF THE GOVERNMENT BUT DR. TOWNSEND.
EVEN IF THE PANAMANIAN LAW PREVIOUSLY REFERRED TO WAS INTENDED TO
APPLY TO VEHICLES OF A FOREIGN SOVEREIGN, AND THE ICA IN ACCORDANCE WITH
ITS POLICY SET FORTH IN ICATO A-466 OF APRIL 5, 1956, REFERRED TO IN
YOUR LETTER, WOULD ORDINARILY IN COMPLIANCE WITH LOCAL LAW OBTAIN
INSURANCE UPON ITS VEHICLES, THE RIGHT OF DR. TOWNSEND TO REIMBURSEMENT
FOR THE PERSONAL INSURANCE OBTAINED IS NOT THEREBY DETERMINED. NOR DOES
THE RIGHT TO REIMBURSEMENT TURN UPON THE QUESTION OF WHETHER DR.
TOWNSEND WAS REQUIRED BY PANAMANIAN LAW OR THE MISSION'S REGULATIONS OR
INFORMATION BULLETIN TO OBTAIN THE PERSONAL INSURANCE; BUT, RATHER,
ASIDE FROM ANY QUESTION OF THE MISSION'S AUTHORITY TO AUTHORIZE
REIMBURSEMENT, UPON WHETHER THE REGULATIONS OR INFORMATION BULLETIN CAN
BE CONSIDERED AS CONTEMPLATING REIMBURSEMENT OF THE PERSONAL INSURANCE
EXPENSE.
THE COST OF PERSONAL LIABILITY INSURANCE IS THROUGHOUT THE GOVERNMENT
GENERALLY CONSIDERED A PERSONAL EXPENSE OF THE OPERATOR OF A GOVERNMENT
VEHICLE. SEE B-123196, DECEMBER 16, 1955, TO THE SECRETARY OF STATE.
THE MISSION'S REGULATIONS AND INFORMATION BULLETIN DO NOT PROVIDE FOR
REIMBURSEMENT OF THAT EXPENSE; NOR DO THEY AUTHORIZE THE OBLIGATION OF
PUBLIC FUNDS THEREFOR. THEY DO HOWEVER, AS WE READ THE REGULATIONS AND
INFORMATION BULLETIN, REFLECT THE GENERALLY ACCEPTED POINT OF VIEW THAT
THE COST OF INSURANCE COVERING THE INDIVIDUAL LIABILITY OF AN OPERATOR
OF A GOVERNMENT VEHICLE IS A PERSONAL EXPENSE OF THE OPERATOR.
THE CLAIM OF DR. TOWNSEND, AND THE SIMILAR CLAIMS REFERRED TO IN YOUR
LETTER, ARE THEREFORE DEEMED NOT FOR PAYMENT.
B-139685, JUL. 16, 1959
TO THE CHICAGO PNEUMATIC TOOL COMPANY:
FURTHER REFERENCE IS MADE TO A COPY OF YOUR LETTER DATED MAY 19,
1959, ADDRESSED TO THE GENERAL SERVICES ADMINISTRATION PROTESTING THE
ACTION OF THAT ADMINISTRATION IN AWARDING A CONTRACT TO THE WHITE MOTOR
COMPANY UNDER INVITATION NO. FW-3R-18051/1-A-2-59.
YOUR PROTEST IS BASED ON THE ALLEGATION THAT THE WHITE MOTOR COMPANY
DID NOT SUPPLY LITERATURE AS REQUIRED ON PAGE 5 OF THE INVITATION FOR
BIDS AND DID NOT SPECIFY THE TYPE OF SWITCHGEAR OR THE MAKE OF THE
GENERATOR. ALSO, YOU CONTEND THAT THE WHITE MOTOR COMPANY FAILED TO
SUPPLY POLAR DIAGRAMS AS REQUIRED ON PAGE 5 OF THE SPECIFICATIONS
ATTACHED TO THE INVITATION FOR BIDS.
AS YOU WERE ADVISED BY OUR COMMUNICATION OF MAY 26, 1959, UPON
RECEIPT OF YOUR PROTEST WE REQUESTED A COMPLETE ADMINISTRATIVE
INVESTIGATION INTO THE FACTS OF THIS CASE, WHICH INVESTIGATION HAS SINCE
BEEN CONCLUDED, WITH RESULTS SUBSTANTIALLY AS FOLLOWS:
ON PAGE 4 OF THE WHITE BID THEY STATED THAT THEY WERE OFFERING THEIR
SUPERIOR BRAND MODEL NO. 40-SX-6. THE LITERATURE COVERING THIS MODEL
WAS SUBMITTED BY WHITE WITH THEIR BID. THE GENERAL SERVICES
ADMINISTRATION HAS FURNISHED US PHOTOSTATIC COPIES OF THIS DESCRIPTIVE
LITERATURE. ALSO, POLAR DIAGRAMS WERE WITH THE WHITE BID AT THE TIME OF
BID OPENING. THE PURCHASING AGENCY HAS FURNISHED US COPIES OF THESE
DIAGRAMS. THUS, YOUR ALLEGATION THAT WHITE FAILED TO SUPPLY THE
REQUIRED LITERATURE AND DIAGRAMS APPEARS TO BE UNFOUNDED.
WITH RESPECT TO THE SWITCHGEAR AND GENERATOR REQUIRED BY THE
INVITATION, THE WHITE BID CONTAINED A SUBSTANTIAL AMOUNT OF DESCRIPTION
AND SPECIFICATIONS OF THE SWITCHGEAR AND GENERATOR TO BE SUPPLIED IN
CONNECTION WITH THE PRODUCT BUT ADMITTEDLY FAILED TO GIVE THE NAME OR
MAKE OF THESE ITEMS. HOWEVER, UPON A REVIEW OF ALL BIDS RECEIVED BY THE
TUDOR ENGINEERING COMPANY, ACTING AS CONSULTANT ENGINEERS FOR
INTERNATIONAL COOPERATION ADMINISTRATION, THAT FIRM ADVISED THAT THE
SWITCHGEAR AND GENERATOR OFFERED BY WHITE WAS SATISFACTORY AND
RECOMMENDED THAT THE WHITE BID BE ACCEPTED. IN VIEW OF THE OVER-ALL
DESCRIPTION OF THESE ITEMS SUPPLIED BY WHITE AND THE OTHERWISE COMPLETE
RESPONSE OF ITS BID, THESE OMISSIONS WERE ADMINISTRATIVELY DETERMINED TO
BE A MINOR IRREGULARITY IN THE BID AND THE WHITE BID WAS ACCEPTED.
IT HAS BEEN CONSISTENTLY HELD THAT DEFICIENCIES OR DEVIATIONS IN BIDS
MAY BE WAIVED ONLY IF THEY DO NOT GO TO THE SUBSTANCE OF THE BID OR WORK
AN INJUSTICE TO OTHER BIDDERS. SEE 35 COMP. GEN. 98. SINCE THE
DEFICIENCIES DO NEITHER OF THESE THINGS, THERE IS NO LEGAL BASIS UPON
WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ADMINISTRATIVE ACTION
TAKEN IN THE MATTER.
B-139911, JUL. 16, 1959
TO COLONEL R. P. MUHLBACH, USAF, CHIEF, ALLOTMENT AND RETIRED PAY
DIVISION, HEADQUARTERS, U.S. AIR FORCE:
THE DEPUTY DIRECTOR OF ACCOUNTING AND FINANCE, HEADQUARTERS, UNITED
STATES AIR FORCE, FORWARDED WITH TRANSMITTAL LETTER DATED JUNE 11, 1959,
YOUR LETTER OF MAY 4, 1959, REQUESTING AN ADVANCE DECISION CONCERNING
THE PROPRIETY OF PAYMENT ON A VOUCHER FORWARDED THEREWITH STATED IN
FAVOR OF RANDLE TAYLOR, TRUSTEE FOR MAJOR LEVERN A. FEE, A RETIRED AIR
FORCE OFFICER. THIS REQUEST WAS APPROVED FOR SUBMISSION BY THE
DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE AS AIR FORCE
REQUEST NO. 422, AND THE AMOUNT OF $886.99 STATED IN THE VOUCHER
REPRESENTS THE DIFFERENCE IN THE OFFICER'S DISABILITY RETIRED PAY AS A
MAJOR WITH OVER 22 YEARS' SERVICE AND AS A MAJOR WITH OVER 26 YEARS'
SERVICE FOR THE PERIOD AUGUST 1, 1952, TO DECEMBER 31, 1958.
THE PERTINENT FACTS CONCERNING THE OFFICER'S RETIRED STATUS AS
PRESENTED IN YOUR SUBMISSION SHOW THAT BY ORDERS OF JULY 22, 1952, THE
OFFICER WAS RELEASED FROM ACTIVE DUTY AND RETIRED IN THE GRADE OF
CAPTAIN EFFECTIVE JULY 31, 1952, UNDER THE PROVISIONS OF SECTIONS 402
AND 409, PUBLIC LAW 351, 81ST CONGRESS, 63 STAT. 816, 823, BY REASON OF
100 PERCENT PERMANENT DISABILITY. COUNTING JULY 31, 1952, AS A DAY OF
ACTIVE SERVICE, HE HAD COMPLETED CONTINUOUS ACTIVE SERVICE, AS ENLISTED
MAN AND OFFICER OF 26 YEARS, 0 MONTHS, AND ONE DAY, FOR BOTH ACTIVE DUTY
AND BASIC PAY PURPOSES. IT IS STATED THAT RETIRED PAY HAS BEEN PAID FOR
THE PERIOD AUGUST 1, 1952, THROUGH DECEMBER 31, 1958, BASED ON 75
PERCENT OF THE ACTIVE DUTY PAY RATE FOR A CAPTAIN WITH OVER 22 YEARS OF
SERVICE FOR PAY PURPOSES, THERE BEING NO FURTHER INCREMENT FOR AN
OFFICER OF THAT GRADE WITH GREATER SERVICE. IT IS FURTHER STATED THAT
PURSUANT TO COMPTROLLER GENERAL'S DECISION, B-123643, DATED MARCH 7,
1958, HE WAS RECERTIFIED FOR RETIREMENT PAY PURPOSES IN THE GRADE OF
MAJOR WITH THE SAME SERVICE OF 26 YEARS, 0 MONTHS AND ONE DAY. SINCE AN
OVER 26 YEAR LONGEVITY BRACKET IS APPLICABLE IN DETERMINING THE ACTIVE
DUTY PAY RATES FOR THE GRADE OF MAJOR, AND INASMUCH AS MAJOR FEE
COMPLETED 26 YEARS' SERVICE ON JULY 30, 1952, IT IS STATED THAT A
QUESTION ARISES AS TO THE PROPRIETY OF RECOMPUTING HIS RETIRED PAY BASED
ON THE GRADE OF MAJOR WITH OVER 26 YEARS SERVICE FOR PAY PURPOSES.
SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S. CODE
272 (D), PROVIDES FOR THE PAYMENT OF DISABILITY RETIREMENT PAY COMPUTED
BY ONE OF THE METHODS THERE PRESCRIBED ON THE BASIS OF "THE MONTHLY
BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY HIM * * * AT THE TIME OF
HIS RETIREMENT.'
SECTION 201 (A) OF THE CAREER COMPENSATION ACT, 37 U.S. CODE, 232
(A), PROVIDES THAT FOR THE PURPOSE OF COMPUTING THE BASIC PAY OF MEMBERS
OF THE UNIFORMED SERVICES, PAY GRADES ARE PRESCRIBED AND MONTHLY BASIC
PAY FOR SUCH MEMBERS IS ESTABLISHED WITHIN EACH PAY GRADE ACCORDING TO
CUMULATIVE YEARS OF SERVICE.
THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930 (QUOTING FROM 5
U.S. CODE 47 (A), PROVIDES:
"RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS,
CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR
WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT ON THE FIRST DAY OF THE MONTH
FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE
EFFECTIVE, AND SAID FIRST DAY OF THE MONTH FOR RETIREMENTS MADE AFTER
JULY 1, 1930, SHALL BE FOR ALL PURPOSES IN LIEU OF SUCH DATE FOR
RETIREMENT AS WAS ON APRIL 23, 1930, AUTHORIZED; EXCEPT THAT THE RATE
OF ACTIVE OR RETIRED PAY OR ALLOWANCE SHALL BE COMPUTED AS OF THE DATE
RETIREMENT WOULD HAVE OCCURRED IF THIS SECTION HAD NOT BEEN ENACTED.'
WHILE THE 31ST DAY OF ANY MONTH IS EXCLUDED IN THE COMPUTATION OF
PAY, SEE SECTION 6, ACT OF JUNE 30, 1906, AS AMENDED, 5 U.S. CODE 84, AN
INCREASE IN PAY ON THE BASIS OF CUMULATIVE YEARS OF SERVICE IS EARNED BY
ACTUAL SERVICE. SINCE MAJOR FEE'S SERVICE BEGAN ON JULY 31, 1926, THAT
DAY IS A DAY OF SERVICE TO BE COUNTED IN DETERMINING HIS YEARS OF
SERVICE, AND HIS 26 YEARS OF SERVICE WERE COMPLETED ON THE DAY OF THE
MONTH NEXT PRECEDING THE ANNIVERSARY DATE OF HIS ENTRANCE INTO SERVICE,
OR JULY 30, 1952. SECTION 202 (A) OF THE CAREER COMPENSATION ACT, 37
U.S. CODE 233 (A), ENUMERATES THE SERVICE WHICH IS CREDITABLE IN
COMPUTING THE CUMULATIVE YEARS OF SERVICE "TO BE COUNTED BY MEMBERS OF
THE UNIFORMED SERVICES FOR DETERMINING THE AMOUNT OF BASIC PAY THEY ARE
ENTITLED TO RECEIVE UPON COMPLETION OF SUCH YEARS OF SERVICE.' WHERE A
MEMBER COMPLETES 26 CUMULATIVE YEARS OF SERVICE ON A CERTAIN DATE, HIS
RIGHT TO RECEIVE MONTHLY BASIC PAY AT THE NEXT HIGHER RATE PRESCRIBED
FOR HIS PAY GRADE BY SECTION 201 OF THAT ACT, THAT IS, "OVER 26"
CUMULATIVE YEARS OF SERVICE, BECOMES EFFECTIVE ON THE FOLLOWING DAY.
WHILE THE ORDERS OF JULY 22, 1952, PROVIDED FOR MAJOR FEE'S RELEASE FROM
ACTIVE DUTY AND RETIREMENT ON JULY 31, 1952, SUCH ORDERS APPARENTLY
CONTEMPLATED THAT HIS ACTIVE DUTY STATUS SHOULD CONTINUE THROUGH THAT
DAY SINCE, BY REASON OF THE ACT OF APRIL 23, 1930, HE COULD NOT LEGALLY
BE PLACED ON THE RETIRED LIST PRIOR TO AUGUST 1, 1952. THUS, HAVING
COMPLETED 26 YEARS AND ONE DAY OF SERVICE PRIOR TO THE EFFECTIVE DATE OF
HIS RETIREMENT, AUGUST 1, 1952, IT FOLLOWS THAT HE IS ENTITLED TO HAVE
HIS RETIRED PAY COMPUTED ON THE BASIS OF "OVER 26" YEARS OF SERVICE AS
PRESCRIBED BY SECTIONS 201 (A) AND 402 (D) OF THE CAREER COMPENSATION
ACT. COMPARE 36 COMP. GEN. 612 (ANSWER TO SECOND QUESTION), AND
DECISION IN THE CASE OF LAMBERT V. UNITED STATES, 121 C.CLS. 333.
ACCORDINGLY, PAYMENT ON THE VOUCHER, RETURNED HEREWITH, IS
AUTHORIZED, IF OTHERWISE CORRECT.
B-140095, JUL. 16, 1959
TO C. I. WHITTEN TRANSFER CO. :
REFERENCE IS MADE TO YOUR LETTER OF JUNE 30, 1959, PROTESTING THE
AUDIT ACTION TAKEN ON THE ACCOUNT COVERED BY OUR FILE
T-GAO-317828-2/58-"N"-2000.
UNDER OUR EXISTING PROCEDURES, NOTICES OF OVERPAYMENT ORDINARILY ARE
NOT REVIEWABLE BY THE COMPTROLLER GENERAL, SINCE NO FINAL ACTION, AS BY
SETTLEMENT CERTIFICATE, HAS BEEN TAKEN. THEREFORE, WE ARE FORWARDING
YOUR LETTER TO OUR TRANSPORTATION DIVISION FOR ASSOCIATION WITH THE
PERTINENT TRANSACTION AND REEXAMINATION OF THE MATTER IN THE LIGHT OF
YOUR PRESENT ALLEGATIONS. IT IS POSSIBLE THAT THEIR FURTHER EXAMINATION
WILL RESULT IN A SUBMISSION TO US FOR INSTRUCTIONS AS TO THE DISPOSITION
OF THE MATTER.
THE PROCEDURE FOR RECONSIDERATION AND REVIEW OF TRANSPORTATION CLAIM
SETTLEMENTS ARE CONTAINED IN TITLE 4 OF THE CODE OF FEDERAL REGULATIONS,
1958 SUPPLEMENT, SUBCHAPTER D, PART 55. FOR YOUR INFORMATION WE QUOTE
SECTIONS 55.1 AND 55.2:
"55.1 PROTEST TO SETTLEMENT ACTION. IF A CLAIMANT DISAGREES WITH THE
ACTION TAKEN BY THE TRANSPORTATION DIVISION UPON ITS CLAIM, A LETTER MAY
BE ADDRESSED TO THE DIRECTOR, TRANSPORTATION DIVISION, U.S. GENERAL
ACCOUNTING OFFICE, WASHINGTON 25, D.C., REQUESTING RECONSIDERATION OF
SUCH ACTION. SUCH LETTERS SHOULD SET FORTH IN DETAIL THE LEGAL,
TECHNICAL, AND FACTUAL DATA AND FURNISH SUCH ADDITIONAL INFORMATION AND
DOCUMENTATION AS IS RELIED UPON TO RAISE SUBSTANTIVE DOUBT AS TO THE
CLAIM SETTLEMENT ACTION.
"55.2 REVIEW BY THE COMPTROLLER GENERAL OF THE UNITED STATES. IF THE
CLAIMANT DESIRES A REVIEW OF THE FINAL ACTION TAKEN BY THE
TRANSPORTATION DIVISION UPON SETTLEMENT, HE MAY REQUEST REVIEW BY THE
COMPTROLLER GENERAL. THE REQUEST SHOULD BE ADDRESSED TO THE COMPTROLLER
GENERAL OF THE UNITED STATES, U.S. GENERAL ACCOUNTING OFFICE, WASHINGTON
25, D.C., AND SHOULD SET FORTH IN DETAIL THE LEGAL, TECHNICAL, AND
FACTUAL REASONS URGED AS WARRANTING REVISION OF THE ACTION TAKEN.'
IN INSTANCES WHERE FINAL ACTION, AS BY SETTLEMENT CERTIFICATE, HAS
BEEN ACCOMPLISHED, WE WILL BE IN A POSITION TO CONSIDER A REQUEST FOR
REVIEW AS TO THE PROPRIETY OF THE SETTLEMENT ACTION. YOUR REQUEST FOR
REVIEW SHOULD INCLUDE REFERENCE TO PARTICULAR BILL NUMBERS, GOVERNMENT
DISBURSING OFFICER VOUCHER NUMBERS, BILLS OF LADING, AND OTHER RELEVANT
INFORMATION.
B-138668, JUL. 15, 1959
TO THE UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF
RECLAMATION:
WE HAVE YOUR LETTER OF JULY 2, 1959 (YOUR REFERENCE 300),
TRANSMITTING COPIES OF CORRESPONDENCE RELATIVE TO THE CLAIMS OF GEORGE
E. HUNTER AND ALBERT DEWITT IN THE AMOUNTS OF $1,228.73 AND $637.38,
RESPECTIVELY, AGAINST GILLUM AND DEL FANTE CONSTRUCTION COMPANY, INC.,
SUBCONTRACTOR FOR CARTER-SCHNEIDER CONSTRUCTION COMPANY, CONTRACTOR FOR
UNITED STATES FIDELITY AND GUARANTY COMPANY, COMPLETING SURETY UNDER
CONTRACT NO. 14-06-D-1680, SPECIFICATIONS NO. DC-4551, SCHEDULE NO. 2,
WITH EUCLID CONSTRUCTION COMPANY, DEFAULTED ORIGINAL CONTRACTOR FOR THE
CONSTRUCTION AND COMPLETION OF THE PALE VERDE LEVEE SYSTEM.
BY LETTER DATED APRIL 13, 1959, YOUR OFFICE SUBMITTED A SIMILAR CLAIM
BY THE J AND F TRUCKING COMPANY, INC., OF SUN VALLEY, CALIFORNIA, IN THE
AMOUNT OF $5,972.92 FOR TRUCK SERVICE FURNISHED TO GILLUM AND DEL FANTE
CONSTRUCTION COMPANY, INC., ON THE SAME SUBJECT.
BY LETTER DATED MAY 6, 1959, MORE CORRESPONDENCE WAS TRANSMITTED TO
THIS OFFICE RELATIVE TO NUMEROUS OTHER CLAIMS OF SUPPLIERS OF LABOR AND
MATERIAL ON THIS PROJECT.
ENCLOSED HEREWITH IS A COPY OF OUR LETTER (B-138668) DATED JUNE 10,
1959, TO SENATOR CLAIR ENGLE RELATIVE TO THE CLAIM OF THE J AND F
TRUCKING COMPANY, INC. FOR THE REASONS STATED IN THAT LETTER THE CLAIMS
OF SUBCONTRACTORS ARE NOT CONSIDERED TO BE COGNIZABLE BY OUR OFFICE AND
WILL BE FILED WITHOUT ACTION UNLESS PRESENTED SPECIFICALLY AS DIRECT
CLAIMS AGAINST THE UNITED STATES.
B-139607, JUL. 15, 1959
TO C. C. GORDON, AUTHORIZED CERTIFYING OFFICER:
REFERENCE IS MADE TO YOUR LETTER OF MAY 6, 1959, REQUESTING A
DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON AN ENCLOSED VOUCHER
PROPOSING PAYMENT TO CHIEF SUPPLY CLERK CHARLES C. CUNNINGHAM, U.S.
COAST GUARD, RETIRED, OF $8.13 REPRESENTING THE DIFFERENCE BETWEEN THE
MONTHLY RETIRED PAY PAID TO HIM FOR APRIL 1959 AS A RETIRED COMMISSIONED
WARRANT OFFICER (W-2) WITH OVER 20 YEARS OF SERVICE AND THE MONTHLY
RETIRED PAY WHICH WOULD HAVE BEEN PAID TO HIM FOR THAT MONTH AS A
RETIRED ENLISTED MAN E-9, WITH THE SAME SERVICE.
IT APPEARS THAT ON MARCH 31, 1959, MR. CUNNINGHAM WAS AN ENLISTED MAN
SERVING IN GRADE E-9 AND THAT HE WAS RETIRED APRIL 1, 1959, PURSUANT TO
14 U.S.C. 355, WHICH PROVIDES THAT AN ENLISTED MAN WHO HAS COMPLETED 20
YEARS OF SERVICE MAY, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE
COMMANDANT OF THE COAST GUARD, BE RETIRED WITH RETIRED PAY OF THE GRADE
OR RATING WITH WHICH RETIRED. SINCE IT IS SHOWN THAT MR. CUNNINGHAM,
HAD SERVED SATISFACTORILY IN THE HIGHER TEMPORARY GRADE OF COMMISSIONED
WARRANT OFFICER, HE WAS PLACED ON THE RETIRED LIST AS A COMMISSIONED
WARRANT OFFICER PURSUANT TO 14 U.S.C. 362, WHICH PROVIDES, IN PART, THAT
AN ENLISTED MAN RETIRED UNDER SECTION 355 SHALL BE RETIRED WITH THE
HIGHEST GRADE OR RATING HELD WHILE ON ACTIVE DUTY IN WHICH HE SERVED
SATISFACTORILY AS DETERMINED BY THE SECRETARY. SINCE SECTION 362 ALSO
PROVIDES FOR PAYMENT OF THE RETIRED PAY OF THE HIGHER GRADE OR RATING IN
WHICH RETIRED, HE WAS PAID THE RETIRED PAY AUTHORIZED FOR HIS
COMMISSIONED WARRANT OFFICER GRADE. THIS RESULTED IN MR. CUNNINGHAM
RECEIVING FOR THE MONTH OF APRIL 1959, $8.13 LESS THAN HE WOULD HAVE
RECEIVED HAD HE BEEN RETIRED IN HIS ENLISTED GRADE.
SECTION 424 OF TITLE 14, U.S. CODE, PROVIDES, IN PART, THAT:
"THE PROVISIONS OF ANY SECTION OF THIS TITLE SHALL NOT BE CONSTRUED
SO AS TO PREVENT ANY OFFICER OR ENLISTED MAN FROM BEING PLACED ON THE
RETIRED LIST WITH THE HIGHEST GRADE OR RATING AND THE HIGHEST RETIRED
PAY TO WHICH SUCH OFFICER OR ENLISTED MAN MAY BE ENTITLED UNDER THE
PROVISIONS OF ANY OTHER SECTION OF THIS TITLE OR UNDER THE PROVISIONS OF
ANY OTHER LAW. * * *"
SUCH PROVISIONS PLAINLY DECLARE THAT NOTHING IN ANY SECTION OF TITLE
14 SHALL BE CONSTRUED TO DENY TO THE INDIVIDUAL CONCERNED BOTH THE
HIGHEST RETIRED GRADE AND THE HIGHEST RETIRED PAY AUTHORIZED FOR HIM BY
ANY SECTION OF TITLE 14 OR BY ANY OTHER LAW. COMPARE 37 COMP. GEN.
446, CONSTRUING THE SOMEWHAT SIMILAR PROVISIONS OF 10 U.S.C. 1401. BUT
FOR THE PROVISIONS OF SECTION 362, MR. CUNNINGHAM WOULD BE ENTITLED TO
THE HIGHER RETIRED PAY AUTHORIZED FOR AN ENLISTED MAN, E-9. SEE 14
U.S.C. 421 (A). HENCE, AN APPLICATION OF THE RETIRED PAY PROVISIONS OF
SECTION 362 SO AS TO PREVENT HIM FROM RECEIVING THE HIGHER ENLISTED
RETIRED PAY WHICH HE WOULD HAVE RECEIVED BUT FOR THAT SECTION, WOULD BE
INCONSISTENT WITH THE PROVISIONS OF SECTION 424.
ACCORDINGLY, PAYMENT ON THE SUBMITTED VOUCHER, WHICH IS RETURNED
HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.
B-139643, JUL. 15, 1959
TO MR. THEODORE M. PETERSEN:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 23, 1959,
REQUESTING REVIEW OF OUR SETTLEMENT OF APRIL 3, 1959, WHICH DISALLOWED
YOUR CLAIM FOR PER DIEM INCIDENT TO DUTY PERFORMED AT WASHINGTON, D.C.,
AS CHIEF GUNNER'S MATE, UNITED STATES COAST GUARD, DURING THE PERIOD
MARCH 10, 1952, TO JUNE 15, 1954.
UNDER ORDERS OF THE COMMANDING OFFICER, USCGC MACKINAC (WAVP-371)
DATED MARCH 7, 1952, YOU WERE DIRECTED TO PROCEED AND REPORT TO THE
COMMANDER, COAST GUARD GROUP, BALTIMORE, MARYLAND, FOR ASSIGNMENT TO
DUTY BY THE COMMANDER, 5TH COAST GUARD DISTRICT, AND IT WAS STATED THAT
"THIS ORDER CONSTITUTES A PERMANENT CHANGE OF STATION FOR YOU FROM
PRESENT STATION TO SUCH STATION AS MAY BE ASSIGNED BY THE COMMANDER, 5TH
CG DISTRICT.' INDORSEMENT OF MARCH 10, 1952, SHOWS THAT YOU REPORTED AT
BALTIMORE AS DIRECTED ON MARCH 10 FOR ASSIGNMENT TO DUTY.
YOU STATE THAT YOU WERE ORDERED VERBALLY BY THE EXECUTIVE OFFICER,
BALTIMORE GROUP, TO REPORT TO THE COMMANDANT, UNITED STATES COAST GUARD
HEADQUARTERS, FOR TEMPORARY ADDITIONAL DUTY AT THE TREASURY PISTOL
RANGE, WASHINGTON, D.C., AND THAT YOU WERE ADVISED THAT NO WRITTEN
ORDERS WERE ISSUED TO YOU DIRECTING TEMPORARY DUTY AT WASHINGTON FOR THE
REASON THAT HEADQUARTERS THERE DID NOT HAVE A PERSONNEL ALLOWANCE OR
BILLET FOR A GUNNER'S MATE OF ANY CLASS. YOU STATE FURTHER THAT YOU
CONTINUED IN THAT CAPACITY, EXCEPT FOR THE PERIOD JULY 20 TO SEPTEMBER
21, 1953, WHEN ASSIGNED TO DUTY WITH THE COAST GUARD RIFLE AND PISTOL
TEAM DETACHMENT, UNTIL ADMINISTRATIVELY TRANSFERRED TO WASHINGTON IN
JUNE OR JULY 1954, DUE TO AUTHORIZATION OF A BILLET AT THAT TIME, AND
THAT YOUR TOUR OF DUTY AT THE TREASURY RANGE IN WASHINGTON ENDED
AUGUST 30, 1956. IN SUPPORT OF YOUR CLAIM YOU HAVE SUBMITTED COPIES OF
CORRESPONDENCE FROM THE COMMANDER, BALTIMORE GROUP, DATED SEPTEMBER 16,
1953, AND FEBRUARY 19, 1954, STATING THAT YOU THEN WERE ASSIGNED TO
TEMPORARY DUTY AT COAST GUARD HEADQUARTERS IN WASHINGTON.
SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT.
813, PROVIDES AUTHORITY, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES
CONCERNED, FOR THE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES OF
TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHEN IN THE PERFORMANCE OF
PUBLIC BUSINESS AWAY FROM THEIR DESIGNATED POSTS OF DUTY PURSUANT TO THE
REQUIREMENTS OF COMPETENT ORDERS. REGULATIONS PROMULGATED UNDER THAT
AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 1150
OF THOSE REGULATIONS DEFINES THE MEMBER'S DESIGNATED POST OF DUTY OR
PERMANENT DUTY STATION AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH
HE IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY OR
TEMPORARY ADDITIONAL DUTY. IT IS THE PLACE WHERE HIS BASIC DUTY
ASSIGNMENT IS FOR PERFORMANCE. THE TERM "TEMPORARY DUTY," WHICH
INCLUDES TEMPORARY ADDITIONAL DUTY, IS DEFINED IN PARAGRAPH 3003-2 OF
THE REGULATIONS TO MEAN DUTY AT A LOCATION OTHER THAN THE PERMANENT
STATION TO WHICH A MEMBER IS ORDERED TO TEMPORARY DUTY UNDER ORDERS
WHICH PROVIDE FOR TRAVEL TO THE PERMANENT STATION UPON ITS COMPLETION.
PARAGRAPHS 3000 AND 3001 PROVIDE THAT NO REIMBURSEMENT FOR TRAVEL IS
AUTHORIZED UNLESS WRITTEN ORDERS OF COMPETENT AUTHORITY HAVE BEEN ISSUED
THEREFOR.
THE QUESTION OF WHETHER AN ASSIGNMENT TO A PARTICULAR STATION IS
TEMPORARY OR PERMANENT IS ONE OF FACT TO BE DETERMINED FROM THE ORDERS
UNDER WHICH THE ASSIGNMENT IS MADE AND, WHERE NECESSARY, FROM THE
CHARACTER OF THE ASSIGNMENT--- PARTICULARLY AS TO ITS DURATION, NATURE
OF THE DUTY, EXISTENCE OF DUTY OBLIGATIONS AT ANOTHER STATION, ETC.
WHILE AN ADMINISTRATIVE EVALUATION OF THE CHARACTER OF THE ASSIGNMENT,
SUCH AS THAT INDICATED BY THE COMMANDER, BALTIMORE GROUP, IN THE PAPERS
FORWARDED BY YOU ORDINARILY IS GIVEN CONSIDERABLE WEIGHT IN SUCH A
DETERMINATION, IT IS NOT CONCLUSIVE IN THE MATTER WHEN OTHER AVAILABLE
EVIDENCE IS CONSIDERED SUFFICIENT TO INDICATE THE EXISTENCE OF A
CONTRARY FACTUAL SITUATION.
UNDER THE ORDERS OF MARCH 7, 1952, YOU WERE DIRECTED TO MAKE A
PERMANENT CHANGE OF STATION TO SUCH STATION AS MAY BE ASSIGNED. WHILE
YOU CONTEND THAT THE ASSIGNMENT AT WASHINGTON WAS INTENDED AS ONE TO
TEMPORARY ADDITIONAL DUTY AND THAT YOU WERE TO BE CARRIED ON THE ROLLS
AS PERMANENTLY ASSIGNED AT BALTIMORE, NOTHING APPEARING IN THE RECORD
INDICATES THAT YOU WERE IN FACT GIVEN A BASIC DUTY ASSIGNMENT AT
BALTIMORE OR THAT IT WAS INTENDED THAT YOU SHOULD PROCEED TO BALTIMORE
FOR DUTY UPON THE COMPLETION OF A TEMPORARY STAY IN WASHINGTON. ON THE
CONTRARY, THE DURATION OF YOUR STAY IN WASHINGTON AND THE ABSENCE
WRITTEN ORDERS DIRECTING TEMPORARY DUTY AT WASHINGTON AND UPON ITS
COMPLETION A RETURN TO BALTIMORE FOR DUTY, AS REQUIRED BY THE CITED
REGULATIONS, INDICATE THAT THE PERMANENT STATION ASSIGNED YOU UNDER THE
ORDERS OF MARCH 7, 1952, WAS AT WASHINGTON. UNDER SUCH CIRCUMSTANCES,
IT IS CONSIDERED THAT YOUR PERMANENT STATION WAS AT WASHINGTON, D.C.,
DURING THE PERIOD INVOLVED, AND CONSEQUENTLY, THAT NO AUTHORITY EXISTS
FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF APRIL 3,
1959, IS SUSTAINED.
B-140019, JUL. 15, 1959
TO THE HONORABLE ROBERT E. MCLAUGHLIN, PRESIDENT, BOARD OF
COMMISSIONERS OF THE DISTRICT OF COLUMBIA, WASHINGTON 4, D.C. :
REFERENCE IS MADE TO YOUR LETTER OF JUNE 23, 1959, REQUESTING A
DECISION AS TO WHETHER WILKINSON-S, WASHINGTON, D.C., IS ENTITLED TO
REFUND OF AMOUNTS DEDUCTED ON ACCOUNT OF DELAY IN DELIVERY OF LOCKERS
UNDER PURCHASE ORDER NO. 38479, DATED FEBRUARY 13, 1958.
THE PROCUREMENT OFFICE, GOVERNMENT OF THE DISTRICT OF COLUMBIA, BY
INVITATION NO. 20245-JM, DATED JANUARY 21, 1958, REQUESTED BIDS, ON
ALTERNATE BASES, FOR FURNISHING 354 LOCKERS TO THE D.C. GENERAL
HOSPITAL. WITH RESPECT TO REQUIRED DELIVERY, PAGE 4 OF THE INVITATION
PROVIDED AS FOLLOWS:
"TIME OF DELIVERY ESSENTIAL: TIME OF DELIVERY IS OF THE ESSENCE AND
SHALL BE A FACTOR IN MAKING AWARD HEREIN. DELIVERY SHALL BE MADE AT
DESTINATION WITHIN 45 CALENDAR DAYS FROM DATE OF PURCHASE ORDER. IF NO
BIDS ARE RECEIVED OFFERING DELIVERY WITHIN THE TIME SPECIFIED HEREIN,
AWARD MAY BE MADE TO THE LOWEST QUALIFIED BIDDER OFFERING THE SHORTEST
DELIVERY TIME. IN THE EVENT A LOWER BID IS RECEIVED AND REJECTED SOLELY
BECAUSE OF NONCONFORMANCE WITH THE DELIVERY TIME SPECIFIED HEREIN, THE
CONTRACTOR WHO RECEIVES THE AWARD WILL NOT BE PAID IN EXCESS OF THE
REJECTED LOW BID PRICE SHOULD HE NOT MAKE COMPLETE DELIVERY WITHIN THE
STIPULATED TIME.'
ALSO, THE INVITATION PROVIDED THAT IN THE EVENT OF DELAY IN DELIVERY
THE CONTRACTOR WOULD BE ASSESSED LIQUIDATED DAMAGES AT THE RATE OF $50
FOR EACH CALENDAR DAY OF DELAY EXCEPT THAT THE CONTRACTOR WAS NOT TO BE
ASSESSED FOR ANY LIQUIDATED DAMAGES WHEN THE DELAY IN DELIVERY WAS DUE
TO CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OF THE CONTRACTOR.
THE LOWEST BID RECEIVED WHICH CONFORMED TO SPECIFICATIONS, EXCEPT AS
TO REQUIRED DELIVERY TIME, WAS IN THE AMOUNT OF $5,751.54, LESS PROMPT
PAYMENT DISCOUNT OF 1 PERCENT--- 10 DAYS, OR A NET OF $5,694.02, BUT
DELIVERY TIME PROMISED WAS "45-60" DAYS. THE SECOND LOW BID IN THE
AMOUNT OF $6,081 WAS SUBMITTED BY THE CLAIMANT, WILKINSON-S, AND IT
PROMISED DELIVERY WITHIN 40 DAYS FROM DATE OF PURCHASE ORDER. PURCHASE
ORDER NO. 38479 WAS DATED AND MAILED TO THE CLAIMANT ON FEBRUARY 13,
1958, THUS ESTABLISHING THE DATE OF COMPLETION AS MARCH 25, 1958. THE
CONTRACT WAS NOT COMPLETED UNTIL APRIL 6, 1958, OR AFTER A DELAY OF 12
CALENDAR DAYS, FOR WHICH LIQUIDATED DAMAGES IN THE AMOUNT OF $600 WAS
DEDUCTED IN MAKING PAYMENT. ALSO, THERE WAS DEDUCTED BECAUSE OF DELAY
IN COMPLETION, THE AMOUNT OF $386.98, REPRESENTING THE DIFFERENCE
BETWEEN THE LOW NET BID OF $5,694.02 AND THE CLAIMANT'S BID OF $6,081.
THE TERMS OF THE INVITATION WHICH BECAME A PART OF THE CONTRACT
CLEARLY CONTEMPLATED THAT ANY BID WHICH DID NOT CONFORM TO THE REQUIRED
DELIVERY TIME OF 45 CALENDAR DAYS WAS NOT FOR CONSIDERATION IN MAKING
AWARD IF OTHER BIDS SO CONFORMING WERE RECEIVED. THE LOW BIDDER IN THIS
CASE OFFERED DELIVERY WITHIN 45 TO 60 CALENDAR DAYS WHEREAS THE CLAIMANT
OFFERED DELIVERY WITHIN 40 CALENDAR DAYS. WHILE WE HAVE HELD IN 28
COMP. GEN. 717 AND 33 COMP. GEN. 395 THAT IT MAY BE PROPER TO STIPULATE
IN A CONTRACT AWARDED TO A PARTY OTHER THAN THE LOW BIDDER BECAUSE OF
PROMISED EARLIER DELIVERY THAT IN THE EVENT THE CONTRACTOR FAILS TO MAKE
DELIVERY WITHIN THE CONTRACT TIME HE SHOULD BE PAID THE PRICE QUOTED BY
THE LOW BIDDER, IT DOES NOT APPEAR THAT THE CONTRACT PRICE SHOULD BE
REDUCED TO THE REJECTED LOW BID PRICE IN THIS INSTANCE. WE BELIEVE THAT
THE PROPER INTERPRETATION OF THE ABOVE-QUOTED CLAUSE IS THAT REDUCTION
OF THE ACCEPTED BID TO THE LOWEST BID PRICE ON ACCOUNT OF LATE DELIVERY
CAN ONLY BE MADE IN A CASE WHERE THE ACCEPTED BID FAILED TO OFFER TO
COMPLY WITH THE REQUIRED DELIVERY TERMS OF THE INVITATION. ASIDE FROM
THIS OBJECTION, THIS CONTRACT PROVISION TAKES INTO ACCOUNT ONLY ONE
ELEMENT OF POSSIBLE DAMAGE BY REASON OF DELAY IN DELIVERY WHILE THE
USUAL LIQUIDATED DAMAGE CLAUSE PROVIDING FOR THE ASSESSMENT OF
LIQUIDATED DAMAGES AT THE RATE OF $50 FOR EACH CALENDAR DAY OF DELAY
COVERS ALL ELEMENTS OF POSSIBLE DAMAGES OCCASIONED BY DELAY.
IT IS STATED IN YOUR LETTER THAT THE CLAIMANT HAS NOT FURNISHED ANY
REASONS THAT WOULD EXCUSE IT UNDER THE TERMS OF THE CONTRACT FOR ANY OF
THE DELAY. ACCORDINGLY, THE CLAIMANT IS ENTITLED TO REFUND OF THE
AMOUNT REPRESENTING THE DIFFERENCE BETWEEN ITS BID AND THAT OF THE LOW
BIDDER BUT IS NOT ENTITLED TO REFUND OF THE AMOUNT OF $600 ASSESSED AS
LIQUIDATED DAMAGES FOR THE 12 DAYS' DELAY.
B-131587, JUL. 14, 1959
TO THE SECRETARY OF DEFENSE:
YOUR ASSISTANT SECRETARY'S LETTER OF MAY 26, 1959, REQUESTS OUR
DECISION UPON SEVERAL QUESTIONS INVOLVING THE CONSTRUCTION OF SECTION 7
OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, 5 U.S.C 73B-3.
THE REFERRED-TO ACT READS IN PART AS FOLLOWS:
"* * * AND PROVIDED FURTHER, THAT EXPENSES OF RETURN TRAVEL AND
TRANSPORTATION UPON SEPARATION FROM THE SERVICE SHALL BE ALLOWED WHETHER
SUCH SEPARATION IS FOR THE PURPOSE 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: PROVIDED FURTHER,
THAT EXPENSES OF ROUND TRIP TRAVEL OF EMPLOYEE AND TRANSPORTATION OF
IMMEDIATE FAMILY BUT EXCLUDING HOUSEHOLD EFFECTS, 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 HAVE SATISFACTORILY
COMPLETED AN AGREED PERIOD OF SERVICE OVERSEAS AND ARE RETURNING TO
THEIR ACTUAL PLACE OF RESIDENCE FOR THE PURPOSE OF TAKING LEAVE PRIOR TO
SERVING ANOTHER TOUR OF DUTY AT THE SAME OR SOME OTHER OVERSEAS POST,
UNDER A NEW WRITTEN AGREEMENT ENTERED INTO BEFORE DEPARTING FROM
THE OVERSEAS POST: * * *.'
YOUR ASSISTANT SECRETARY'S LETTER IS IN PART AS FOLLOWS:
"* * * THE DEPARTMENT OF DEFENSE PROPOSES TO CONTINUE THE PRACTICE OF
EMPLOYING TEACHERS FOR ITS OVERSEAS DEPENDENTS SCHOOLS UNDER ONE-YEAR
TRANSPORTATION AGREEMENTS. AT THE SAME TIME, THE DEPARTMENT WOULD LIKE
TO PLACE REASONABLE LIMITATIONS UPON THE GRANTING OF RETURN
TRANSPORTATION TO THESE TEACHERS, WHICH WOULD APPROXIMATE AS CLOSELY AS
POSSIBLE THE PRACTICE OBSERVED WITH RESPECT TO OTHER CIVILIAN EMPLOYEES.
THIS WOULD INVOLVE:
"/A) SEPARATION BY RESIGNATION AND FURNISHING RETURN TRANSPORTATION
TO THOSE TEACHERS WHO, UPON SATISFACTORY COMPLETION OF SERVICE INVOLVING
ONE SCHOOL YEAR, WISH TO RETURN TO THE UNITED STATES. IN SUCH CASES THE
SEPARATION WOULD NORMALLY BE WITH THE STIPULATION THAT THE TEACHER WOULD
NOT BE REHIRED FOR THE SUBSEQUENT SCHOOL YEAR EXCEPT IN AN OVERSEAS AREA
WHERE THE NORMAL TOUR OF DUTY FOR CIVILIAN EMPLOYEE HAS BEEN ESTABLISHED
AS ONE YEAR.
"/B) NOT PROVIDING RETURN TRANSPORTATION TO THOSE TEACHERS WHO, UPON
SATISFACTORY COMPLETION OF SERVICE INVOLVING ONE SCHOOL YEAR, AGREE TO
SERVE FOR THE SUBSEQUENT SCHOOL YEAR. THESE TEACHERS, UPON COMPLETION
OF THE SECOND CONSECUTIVE SCHOOL YEAR, WOULD BE PROVIDED RETURN
TRANSPORTATION TO THE UNITED STATES, OR, IN CASES WHERE THEY WERE
WILLING TO SERVE FOR AN ADDITIONAL SCHOOL YEAR, THEY WOULD BE PROVIDED
ROUND TRIP TRANSPORTATION UPON SIGNING A RENEWAL TRANSPORTATION
AGREEMENT.
"/C) CONTINUATION OF THE CYCLE DESCRIBED IN (A) AND (B) FOR
SUBSEQUENT OVERSEAS TOURS.
"THE FOLLOWING QUESTIONS ARE SUBMITTED FOR YOUR CONSIDERATION:
"1. WOULD YOUR OFFICE BE REQUIRED TO OBJECT TO THE PRACTICES
OUTLINED ABOVE IF CLEARLY DESCRIBED IN THE TRANSPORTATION AGREEMENTS?
"2. IN OVERSEAS AREAS WHERE THE NORMAL TOUR OF DUTY FOR CIVILIAN
EMPLOYEES AS SPECIFIED IN TRANSPORTATION AGREEMENTS IS ONE YEAR, COULD
TEACHERS BE GRANTED ROUND TRIP TRANSPORTATION HOME AT GOVERNMENT EXPENSE
ON COMPLETION OF THE SCHOOL YEAR (9 OR 10 MONTHS) WITHOUT REQUIRING THAT
THEY BE SEPARATED AND THEN REHIRED FOR THE SUBSEQUENT YEAR?
"3. WHEN IT IS KNOWN THAT AN EMPLOYEE'S SERVICE WILL BE REQUIRED FOR
A CONTINUOUS PERIOD OF LESS THAN ONE YEAR (AS IN THE CASE OF TEACHERS)
BUT THAT SUCH SERVICES WILL BE REQUIRED AGAIN FOR SUBSEQUENT COMPARABLE
PERIODS OF TIME, MAY TRANSPORTATION AGREEMENTS BE CONCLUDED FOR LESS
THAN ONE YEAR AND THUS AVOID THE NECESSITY FOR SEPARATING AND REHIRING
THE EMPLOYEE?
"THE RECRUITING CAMPAIGN FOR TEACHERS FOR THE OVERSEAS DEPENDENTS
SCHOOLS FOR THE 1959-1960 SCHOOL YEAR IS NOW BEING ORGANIZED. AN EARLY
DECISION ON THESE QUESTIONS WOULD BE APPRECIATED IN ORDER THAT ANY
NECESSARY CHANGES IN TRANSPORTATION AGREEMENTS CAN BE MADE IN TIME TO BE
APPLICABLE FOR THAT SCHOOL YEAR.'
UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT AN EMPLOYEE AND
DEPENDENTS MAY BE RETURNED TO THE UNITED STATES AT GOVERNMENT EXPENSE
ONLY IF HE SHALL HAVE COMPLETED A MINIMUM PERIOD OF SERVICE OUTSIDE THE
CONTINENTAL UNITED STATES OF NOT LESS THAN ONE NOR MORE THAN THREE YEARS
UNLESS HE IS BEING SEPARATED PRIOR TO THE COMPLETION OF SUCH PERIOD OF
SERVICE FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE DEPARTMENT
OR AGENCY CONCERNED. THE PRACTICES DESCRIBED IN SUBPARAGRAPHS
DESIGNATED (A), (B), AND (C) OF YOUR ASSISTANT SECRETARY'S LETTER,
QUOTED ABOVE, APPEAR TO BE CONSISTENT WITH THE QUOTED PROVISIONS OF
SECTION 7 AND WE SEE NO LEGAL BASIS FOR OBJECTING TO THE INCLUSION OF
APPROPRIATE PROVISIONS IN TRANSPORTATION AGREEMENTS TO INSURE ADHERENCE
TO SUCH PRACTICES. YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.
THE "AGREED PERIOD SERVICE" WHICH MUST BE COMPLETED AS A CONDITION OF
ELIGIBILITY FOR ROUND-TRIP TRAVEL AND TRANSPORTATION AT GOVERNMENT
EXPENSES FOR THE PURPOSE OF TAKING LEAVE REFERS TO A MINIMUM PERIOD OF
SERVICE OF NOT LESS THAN ONE OR MORE THAN THREE YEARS AGREED UPON IN
ADVANCE. UNLESS SUCH AGREED MINIMUM PERIOD OF SERVICE OF AT LEAST ONE
YEAR IS COMPLETED BY AN EMPLOYEE PRIOR TO HIS RETURN TO THE UNITED
STATES FOR THE PURPOSE OF TAKING LEAVE, NEITHER HE NOR HIS DEPENDENTS
WOULD BE ENTITLED TO TRAVEL OR TRANSPORTATION AT GOVERNMENT EXPENSE.
ANY AGREEMENT PURPORTING TO SHORTEN THE ONE YEAR MINIMUM REQUIREMENT
WOULD BE INEFFECTIVE TO ACCOMPLISH SUCH PURPOSE. WE HAVE NOTED NOTHING
IN THE LANGUAGE OF S. 96, (DEFENSE DEPARTMENT OVERSEAS TEACHERS PAY AND
PERSONNEL PRACTICES ACT) OR IN ITS LEGISLATIVE HISTORY THAT SUGGESTS ANY
DIFFERENT CONCLUSION WOULD BE WARRANTED UNDER THAT LEGISLATION THAN THAT
ARRIVED AT HEREIN. THEREFORE, THE REMAINING TWO QUESTIONS (QUESTIONS 2
AND 3) ALSO ARE ANSWERED IN THE NEGATIVE.
B-139846, JUL. 14, 1959
TO MR. CHARLES W. POOLEY, JR. :
FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE REJECTION BY
THE SMITHSONIAN INSTITUTION OF YOUR LOW BID SUBMITTED IN RESPONSE TO
INVITATION NO. 59-SI-755, ISSUED MARCH 18, 1959, AND AGAINST THE AWARD
OF THE CONTRACT TO REMINGTON RAND.
THE INVITATION REQUESTED BIDS ON A QUANTITY OF "LIBRARY STACKS, METAL
AND WOOD," AS THEREIN SPECIFIED, FOR DELIVERY TO THE NATIONAL AIR MUSEUM
STORAGE AREA, SILVER HILL, MARYLAND.
INVITATIONS WERE SENT TO FIVE MANUFACTURERS AND THREE BIDS WERE
RECEIVED AS FOLLOWS:
TABLE
ESTEY CORPORATION $13,673.00
REMINGTON RAND 16,107.00
VIRGINIA METAL PRODUCTS, INC. 17,977.00
IN COMPLIANCE WITH PARAGRAPH 1.2 OF THE SPECIFICATIONS THE ESTEY
CORPORATION, BY LETTER DATED MARCH 21, 1959, LISTED THE FOLLOWING
DEVIATIONS FROM THE ADVERTISED SPECIFICATIONS:
"1) UPRIGHTS PARAGRAPH 5. OUR UPRIGHTS ARE OF ONE PIECE CONSTRUCTION
WHICH PROVIDE A NEATER APPEARANCE, A MORE PRECISE LOCATION OF SLOTS, AND
35 1/2 INCHES CLEAR BETWEEN SHELF BRACKETS AS COMPARED TO THE 35 1/4
DIMENSION CALLED FOR IN PARAGRAPH 2.2 (12.2). DIMENSION CALLED FOR IN
PARAGRAPH 2.2 (12.2).
"2) BASE BRACKETS PARAGRAPH 8. OUR BASE BRACKETS ARE MADE OF TWO
FORMED SECTIONS OF 16 GUAGE STEEL WHICH PROVIDE A ROUNDED EXPOSED EDGE,
WHICH WOULD BE LESS LIKELY TO DAMAGE BOOKS THAN THE SINGLE THICKNESS OF
11 GUAGE METAL SPECIFIED.
"3) CLOSED BASES PARAGRAPH 9. OUR BASE IS OF A ONE PIECE
CONSTRUCTION, COMPRISING A 4 INCH HIGH BASE AND SHELF, WHICH PROVIDES A
NEATER APPEARANCE AND A MORE RIGID BASE.'
PARAGRAPH 5.1 OF THE SPECIFICATIONS, ENTITLED "UPRIGHTS," IS AS
FOLLOWS:
"UPRIGHTS SHALL CONSIST OF TWO 16-GUAGE CHANNEL SHAPES WITH STIFFENED
FLANGES PLACED BACK TO BACK TO MEASURE 2 INCH SQUARE IN CROSS SECTION.
EACH UPRIGHT SHALL HAVE NOT LESS THAN 8 RIGHT ANGLE B/E/NDS IN CROSS
SECTION, TO DEVELOP MAXIMUM STRENGTH. EACH UPRIGHT SHALL BE PERFORATED
THE FULL HEIGHT, ON BOTH FACES, WITH TWO VERTICAL ROWS OF RECTANGULAR
SLOTS 1/4 INCH TIMES 5/8 INCH IN SIZE, ON 1 INCH CENTERS, TO RECEIVE THE
HOOKS AND SAFETY LUGS OF THE SHELF BRACKETS. INTERMEMBERING HOLES, FOR
SWAY BRACES, TIE CHANNELS AND PARTICULARLY FOR THE ATTACHMENT OF PLATE
BASE BRACKETS, SHALL BE LOCATED IN THE WEB OF THE UPRIGHTS TO DEVELOP
FULL STRENGTH FOR THE CONNECTION OF THESE MEMBERS.'
PARAGRAPH 8.1 OF THE SPECIFICATIONS, ENTITLED "BASE BRACKETS," IS AS
FOLLOWS:
"8.1 BASE BRACKETS, TO FUNCTION AS GUSSETS, SHALL BE MADE OF 11-GUAGE
STEEL WITH NEATLY ROUNDED FRONT CORNERS, AND SHALL BE ATTACHED TO THE
WEBS ONLY OF THE STACK UPRIGHTS WITH CONNECTING BOLTS WHICH MUST NOT
PROJECT INTO THE SHELF AREA TO DAMAGE THE FILED MATERIAL.'
PARAGRAPH 9 OF THE SPECIFICATIONS IS AS FOLLOWS:
"9. CLOSED BASES SHALL CONSIST OF BOTTOM SHELVES OF THE SAME DESIGN
AS ADJUSTABLE SHELVES. CLOSURE PLATES OF 18-GUAGE STEEL SHALL BE
FURNISHED AT THE FRONT EDGE OF THE BASE SHELVES, CLOSING THE SPACE TO
THE FLOOR.'
THE SMITHSONIAN INSTITUTION HAS REPORTED THAT THE ADVERTISED
SPECIFICATIONS WERE DEVELOPED TO ASSURE THE PROCUREMENT OF EQUIPMENT
WHICH WOULD PROVIDE MAXIMUM RIGIDITY AND PERMANENCE COMPARABLE TO AND IN
KEEPING WITH OTHER ASPECTS OF THE BUILDING IN WHICH IT WAS TO BE
INSTALLED. IT IS FURTHER REPORTED THAT THE SPECIFICATIONS WERE PREPARED
AFTER CAREFUL CONSIDERATION OF THESE REQUIREMENTS AND OF THE TYPES OF
CONSTRUCTION AVAILABLE IN THE OPEN MARKET.
WHILE THE ADVERTISED SPECIFICATIONS WERE FULLY DETAILED AS TO
MATERIALS TO BE USED, METHODS OF CONSTRUCTION, DIMENSIONS, ETC., THE
PROVISIONS OF PARAGRAPH 1.2, CALLING FOR DISCLOSURE OF ANY DEVIATIONS OF
ITEMS OFFERED ARE INDICATIVE OF A WILLINGNESS TO CONSIDER ITEMS
DIFFERING IN MINOR OR IMMATERIAL DETAILS. HOWEVER, THE SMITHSONIAN
INSTITUTION REJECTED THE LOW BID OF YOUR CORPORATION AS BEING
NONRESPONSIVE TO THE MINIMUM REQUIREMENTS OF THE SPECIFICATIONS.
THE DETERMINATION OF THE NEEDS OF THE GOVERNMENT, AND THE PREPARATION
OF SPECIFICATIONS STATING THOSE NEEDS, ARE MATTERS WITHIN THE AUTHORITY
OF THE PROPER ADMINISTRATIVE OFFICIALS OF THE PURCHASING OR USING
AGENCIES, AND THE QUESTION WHETHER EQUIPMENT OFFERED BY A BIDDER
CONFORMS WITH THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS IS
PRIMARILY FOR DETERMINATION BY THEIR CONTRACTING OR ADMINISTRATIVE
OFFICIALS. SEE O-BRIEN V. CARNEY, 6 F.SUPP. 761; ROYAL SUNDRIES CORP.
V. UNITED STATES, 111 F.SUPP. 136; 35 COMP. GEN. 174, 179-180.
WITH RESPECT TO THE SPECIFIC DEVIATIONS PROPOSED IN YOUR BID, THE
ADMINISTRATIVE OFFICE OFFERS NO COMMENT ON THE THIRD ITEM, AND WE
THEREFORE ASSUME THAT IT WAS NOT CONSIDERED MATERIAL. AS TO THE SECOND,
WE ARE ADVISED THAT THE THICKNESS OF 11-GUAGE STEEL IS EXACTLY TWICE
THAT OF 16-GUAGE, AND IT WOULD THEREFORE APPEAR, IN THE ABSENCE OF A
SPECIFIC STATEMENT TO THE CONTRARY, THAT TWO SECTIONS OF THE LIGHTER
METAL MIGHT BE SUBSTANTIALLY EQUIVALENT TO ONE OF THE HEAVIER. THE
UPRIGHTS, HOWEVER, INVOLVED IN THE FIRST DEVIATION, ARE REQUIRED BY
PARAGRAPH 5.1 OF THE SPECIFICATIONS TO BE SO CONSTRUCTED AS TO GIVE NOT
LESS THAN 8 BENDS IN CROSS-SECTION, WHEREAS THE ADMINISTRATIVE OFFICE
REPORTS THAT THE DESIGN OFFERED BY YOU IS ONE-PIECE TUBULAR SECTION
HAVING ONLY SIX BENDS IN CROSS-SECTION. WE ARE THEREFORE UNABLE TO SAY
THAT THERE IS NO SUBSTANTIAL BASIS FOR THE ADMINISTRATIVE CONCLUSION
THAT THE STACKS OFFERED BY YOU VARIED MATERIALLY FROM THE SPECIFICATION
REQUIREMENTS, AND HAVE NO ALTERNATIVE BUT TO AFFIRM THE ADMINISTRATIVE
REJECTION OF YOUR BID.
B-140049, JUL. 14, 1959
TO MR. S. MAURICE LIVINGSTON:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 15, 1959, REQUESTING REVIEW
OF OFFICE SETTLEMENT DATED MAY 21, 1959, WHICH DISALLOWED YOUR CLAIM FOR
ADJUSTMENT AND REFUND IN CONNECTION WITH PURCHASES BY YOU OF CERTAIN
LOTS OF SURPLUS PROPERTY FROM THE UNITED STATES ARMY ORDNANCE DEPOT,
OPPANA, JAPAN.
THE ADMINISTRATIVE REPORT, ON WHICH OUR SETTLEMENT OF MAY 21, 1959,
WAS BASED, STATES THAT ON MORE THAN ONE OCCASION YOU WERE CAUTIONED AND
WARNED THAT THE PROPERTY WAS BEING SOLD ON A "LOT BASIS" AND NOT BY
WEIGHT, AND THAT YOU WERE FURTHER INFORMED THAT ANY INFORMATION ON
TONNAGE WOULD NOT BE ACCURATE AND THAT THE BEST EVIDENCE WOULD BE GAINED
BY AN INSPECTION OF THE PROPERTY. THIS REPORT WAS SIGNED BY M.
SPIELMAN, CONTRACTING OFFICER, AND YOUR LETTER PRESENTS A DIRECT AND
IRRECONCILABLE CONTRADICTION OF HIS STATEMENTS.
FOLLOWING IS A COMPARISON OF THE BIDS RECEIVED UNDER THE THREE
REQUESTS FOR PROPOSALS. IN EVALUATING THE OFFERS, IT WILL BE NOTED THAT
ALL APPEAR TO BE REASONABLY WITHIN THE SAME RANGE:
CONTRACT FEC-N26962
TABLE
BIDDER NEGOTIATED BID
S. M. LIVINGSTON YEN 3,300,000.00
FUKUSHIMA SHOTEN YEN 3,050,000.00
KOTOBUKI BUSSAN CO, LTD YEN 3,050,000.00
ARAI SHOJI CO, LTD YEN 3,000,000.00
CONTRACT FEC-N26961
TABLE
BIDDER NEGOTIATED BID
S. M. LIVINGSTON YEN 5,000,000.00
KOTOBUKI BUSSEN CO, LTD YEN 4,889,700.00
SANKO KOUZAI CO YEN 4,670,000.00
ARAI SHOJI CO, LTD YEN 4,658,860.00
IKEDA SHOJI CO, LTD YEN 4,510,000.00
TAKAO SHOKAI CO, LTD YEN 2,500,000.00
CONTRACT FEC-N26946
TABLE
BIDDER NEGOTIATED BID
S. M. LIVINGSTON YEN 2,300,000.00
KENEISHI SHOTEN YEN 1,950,000.00
DAIDO SHOKAI YEN 1,920,000.00
KOTOBUKI BUSSEN CO, LTD YEN 1,907,600.00
HONDA PIPE CO, LTD YEN 1,800,000.00"
THE CONTRACTING OFFICER'S REPORT STATED, IN PART, AS FOLLOWS:
"10. IN CORRELATING THE ABOVE-CITED BIDS SUBMITTED BY MR.
LIVINGSTON WITH BIDS OF SECOND HIGH BIDDERS, IT IS CONSIDERED THAT BIDS
WERE SUBMITTED ON A TRUE LOT BASIS, RATHER THAN ON THE BASIS OF
ESTIMATED WEIGHTS. FURTHER, IN ANALYZING THE CORRELATION OF MR.
LIVINGSTON'S BIDS WITH THOSE OF SECOND HIGH BIDDERS, IT IS MOST
INTERESTING TO NOTE THAT THERE IS AN EXTREMELY LOW MARGIN OF DIFFERENCE
IN BIDS SUBMITTED FOR PROPERTY SOLD UNDER CONTRACT N26961. THIS IS THE
LOT IN WHICH THERE IS THE BULK OF THE DIFFERENCE IN THE ESTIMATED AND
TRUE WEIGHTS (204.6 TONS). THE DIFFERENCE IN BIDS SUBMITTED BY MR.
LIVINGSTON AND THE SECOND HIGH BIDDER, WHO WAS NOT FURNISHED WEIGHT
FIGURES, AND WHO BASED HIS BID COMPLETELY ON THE INSPECTION OF THE
PROPERTY AND ON ITS FAIR VALUE TO HIM, AMOUNTED TO LESS THAN $300 FOR
THE ENTIRE LOT (ABOUT $1.15 PER TON OF ACTUAL WEIGHT).
"11. IT IS FURTHER CONSIDERED THAT THE PURCHASE OFFER SUBMITTED BY
MR. LIVINGSTON IS A FAIR AND REASONABLE ONE. THIS IS BASED ON THE
FOLLOWING:
"A. AVERAGE PRICES RECEIVED FOR THE TYPE OF ITEMS SOLD UNDER THE
SAME SALES TERMS, IF CORRELATED TO "PER TON" OFFERS, AVERAGE BETWEEN $40
TO $80 PER TON, DEPENDING ON THE CONDITION OF THE PROPERTY. MR.
LIVINGSTON'S OFFER, BASED ON THE ACTUAL "PER TON" COST, AMOUNTED TO
APPROXIMATELY $46 PER TON.
"B. MR. LIVINGSTON'S OFFER FOR THE THREE COMBINED LOTS AMOUNTED TO
APPROXIMATELY $29,444. SECOND HIGH BIDS FOR THE COMBINED LOTS SUBMITTED
BY BIDDERS ON A "LOT" BASIS AMOUNTED TO APPROXIMATELY $27,470. THIS
AMOUNTED TO A DIFFERENCE OF ONLY $1,974. ALSO, IT IS AGAIN POINTED OUT
THAT THE DIFFERENCE IN OFFERS FOR THE LOT WHEREIN THE BULK OF THE
DIFFERENCE BETWEEN ACTUAL AND ESTIMATED WEIGHTS OCCURRED (N26961)
AMOUNTED TO LESS THAN $300.
"12. IN REVIEWING THE ABOVE, IT IS CONCLUDED THAT THE CLAIMANT WAS
FULLY AWARE OF THE FACT THAT THE PROPERTY WAS BEING SOLD ON A "LOT
BASIS" AND NOT BY WEIGHT; THAT ALTHOUGH HE WAS FURNISHED INFORMATION AS
TO WEIGHT HE WAS CAUTIONED MORE THAN ONCE AS TO ITS INACCURACY; THAT
WEIGHT WOULD NOT BE CONSIDERED IN MAKING AN AWARD; THAT THE CLAIMANT
WAS FULLY AWARE OF THE TERMS AND CONDITIONS OF THE CONTRACT; THAT HE
WAS CAUTIONED MORE THAN ONCE TO MAKE AN INSPECTION; THAT AN INSPECTION
WAS MADE BY HIS AGENT; THAT THE CLAIMANT CANNOT JUSTLY CONTEND HE WAS
MISLED; THAT HIS DEMAND FOR RELIEF IS BASED ON MORAL AND NOT LEGAL
GROUNDS; THAT THERE IS CONSIDERABLE EVIDENCE THAT BIDS WERE ACTUALLY
SUBMITTED ON A TRUE VALUE "LOT" BASIS; AND THAT BIDS WERE WITHIN THE
PRICE RANGE NORMALLY RECEIVED FOR GOODS OF THIS TYPE. THEREFORE, IT IS
RECOMMENDED THAT THE CLAIM BE DISAPPROVED.'
OUR OFFICE HAS NO FACILITIES OR PROCEDURES TO RESOLVE DISPUTED
QUESTIONS OF FACT, AND, IN CASES OF DIRECT CONFLICT SUCH AS THIS, WE ARE
BOUND TO ACCEPT THE ADMINISTRATIVE STATEMENT IN THE ABSENCE OF
COMPLETELY CONVINCING RECORD EVIDENCE TO THE CONTRARY.
ACCEPTING, AS WE MUST, THE ADMINISTRATIVE REPORT, WE HAVE NO
ALTERNATIVE BUT TO APPLY THE LAW, WHICH IS CLEAR THAT WHERE SURPLUS
MATERIALS ARE OFFERED FOR SALE BY THE GOVERNMENT ON AN "AS IS" BASIS,
WITHOUT WARRANTY OR GUARANTY OF ANY KIND, A BIDDER WHO FAILS TO TAKE
ADVANTAGE OF AN OPPORTUNITY TO INSPECT CANNOT SUBSEQUENTLY RECOVER ON
THE GROUNDS THAT THE MATERIALS ARE OF AN INFERIOR QUALITY, OR THAT THEY
WERE SOMETHING OTHER THAN WHAT HE THOUGHT HE WAS BUYING. THE UNITED
STATES COURT OF CLAIMS AND THE SUPREME COURT OF THE UNITED STATES HAVE
RENDERED NUMEROUS DECISIONS IN WHICH THESE PRINCIPLES ARE ASSERTED. SEE
H. SAMUEL AND SONS V. UNITED STATES, 61 C.CLS. 373; TRIAD CORPORATION
V. UNITED STATES, 63 C.CLS. 151; S. BRODY V. UNITED STATES, 64 C.CLS.
538; S. SNYDER CORP. V. UNITED STATES, 68 C.CLS. 667; SILBERSTEIN AND
SON V. UNITED STATES, 69 C.CLS. 412; SACHS MERCANTILE CO. V. UNITED
STATES, 78 C.CLS. 801; LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S.
90; METTRAM V. UNITED STATES, 271 U.S. 15; MAQUIRE AND CO. V. UNITED
STATES, 273 U.S. 67. SEE, ALSO, 29 COMP. GEN. 310 AND 32 ID. 181.
ALTHOUGH IT IS ADMITTED THAT THE RESULTS IN THIS TYPE OF CASE
SOMETIMES MAY SEEM HARSH, IT DOES NOT APPEAR THAT ANY REASONABLE
EQUITABLE INTERPRETATION OF THE PUBLISHED CONDITIONS OF SALE WOULD
WARRANT THE CONCLUSION THAT THE GOVERNMENT OWED ANY HIGHER DEGREE OF
CARE OR DUTY TO BIDDERS THAN TO DELIVER THE EXACT PROPERTY WHICH WAS
AVAILABLE FOR INSPECTION. SEE PAXTON-MITCHELL CO. V. UNITED STATES
(C.CLS. APRIL 8, 1959), 172 F.SUPP. 463.
ACCORDINGLY, THE PREVIOUS ACTION TAKEN IN THE MATTER APPEARS PROPER,
AND IS SUSTAINED.
B-123725, JUL. 13, 1959
TO MRS. MAE E. DUNHAM:
REFERENCE IS MADE TO YOUR LETTERS OF APRIL 16 AND JUNE 12, 1959,
CONCERNING YOUR CLAIM FOR THE ARREARS OF PAY AND ALLOWANCES DUE THE
ESTATE OF THE LATE MASTER SERGEANT BYRON R. DUNHAM, INFANTRY, AS OF
DECEMBER 31, 1953, THE PRESUMPTIVE DATE OF HIS DEATH.
IN THE LETTERS OF APRIL 16 AND JUNE 12, 1959, YOU SAY THAT YOU HAVE
NOW BEEN RECOGNIZED BY THE VETERANS ADMINISTRATION AS THE LEGAL WIDOW OF
THE DECEDENT AND RECEIVE A PENSION AS SUCH WIDOW. ON THE BASIS OF SUCH
RECOGNITION YOU URGE THAT YOUR CLAIM AS WIDOW FOR THE ARREARS OF PAY AND
ALLOWANCES SHOULD BE ALLOWED.
WE ARE ADVISED THAT THE ACTION OF THE VETERANS ADMINISTRATION IN
AWARDING DEPENDENCY AND INDEMNITY COMPENSATION TO YOU AS WIDOW OF
SERGEANT DUNHAM WAS TAKEN UNDER SECTION 2 OF THE ACT OF AUGUST 28, 1957,
PUBLIC LAW 85-209, 71 STAT. 485. THIS SECTION PROVIDES THAT WHENEVER,
IN THE CONSIDERATION OF ANY CLAIM FILED BY A WOMAN AS THE WIDOW OF A
VETERAN FOR GRATUITOUS DEATH BENEFITS UNDER LAWS ADMINISTERED BY THE
VETERANS' ADMINISTRATION, IT IS ESTABLISHED BY SATISFACTORY EVIDENCE
THAT SHE, WITHOUT KNOWLEDGE OF ANY LEGAL IMPEDIMENT, ENTERED INTO A
MARRIAGE WITH SUCH VETERAN WHICH, BUT FOR A LEGAL IMPEDIMENT, WOULD HAVE
BEEN VALID, AND THEREAFTER COHABITED WITH HIM FOR FIVE OR MORE YEARS
IMMEDIATELY BEFORE HIS DEATH, THE PURPORTED MARRIAGE SHALL BE DEEMED TO
BE A VALID MARRIAGE IF NO CLAIM HAS BEEN FILED BY THE LEGAL WIDOW.
THE LAWS RELATING TO VETERANS BENEFITS, HOWEVER, ARE SEPARATE AND
DISTINCT FROM THE LAWS RELATING TO THE SETTLEMENT OF ACCOUNTS OF
DECEASED MEMBERS OF THE ARMED FORCES AND HAVE NO APPLICATION IN THE
SETTLEMENT OF SUCH ACCOUNTS BY OUR OFFICE. HENCE, THE ACT OF AUGUST 28,
1957, AFFORDS NO BASIS FOR FAVORABLE ACTION ON YOUR CLAIM FOR THE
ARREARS OF PAY AND ALLOWANCES DUE SERGEANT DUNHAM'S ESTATE. AS FULLY
EXPLAINED TO YOU IN OUR DECISION OF MAY 20, 1955, B-123725, AND LETTER
OF JULY 7, 1955, COPIES ENCLOSED, THE SETTLEMENT OF ACCOUNTS OF DECEASED
PERSONNEL OF THE ARMY WHO DIED PRIOR TO JANUARY 1, 1956, IS GOVERNED BY
THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, NOW SECTION 29 OF THE ACT OF
SEPTEMBER 2, 1958, 72 STAT. 1563, AND PAYMENT OF THE AMOUNT DUE IN THIS
CASE, AMOUNTING TO APPROXIMATELY $2,391.95, MAY BE MADE ONLY TO A DULY
APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE OF THE LATE SERGEANT
DUNHAM, THAT IS, AND ADMINISTRATOR OR EXECUTOR APPOINTED BY A COURT OF
COMPETENT JURISDICTION.
IF THE PROCEDURE FOR OBTAINING THE APPOINTMENT OF A LEGAL
REPRESENTATIVE IS NOT CLEAR TO YOU, IT IS SUGGESTED THAT YOU PRESENT
THIS LETTER AND THE COPIES OF THE DECISION OF MAY 20, 1955, AND THE
LATTER OF JULY 7, 1955, TO THE SERVICE REPRESENTATIVE OF ANY LOCAL
SERVICEMAN'S ORGANIZATION, THE AMERICAN RED CROSS, OR TO THE CLERK OF
THE PROBATE COURT, ANYONE OF WHOM, GENERALLY, WILL BE GLAD TO ADVISE YOU
HOW TO PROCEED. ANY CLAIM BY A LEGAL REPRESENTATIVE SHOULD BE
TRANSMITTED TO THE GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION,
WASHINGTON 25, D.C.
B-132994, JUL. 13, 1959
TO THE SECRETARY OF THE AIR FORCE:
THE GENERAL ACCOUNTING OFFICE DURING THE PAST SEVERAL YEARS HAS BEEN
REVIEWING SUPPLY AND PHASE-OUT OPERATIONS OF AIR MATERIEL FORCE,
EUROPEAN AREA (AMFEA). BASICALLY, OUR OBJECTIVE HAS BEEN TO REVIEW THE
EFFECTIVENESS OF POLICIES, PROCEDURES, AND MANAGEMENT CONTROLS
ESTABLISHED BY THE AIR FORCE TO ASSURE THE ECONOMICAL AND EFFICIENT
ADMINISTRATION OF THOSE OPERATIONS.
IN PARTICULAR, WE HAVE REPORTED TO THE CONGRESS IN FEBRUARY 1958 ON
CONDITIONS AT THE SOUTHERN AREA MATERIEL AREA, EUROPE (SAMAE),
NOUASSEUR, MOROCCO. IN OUR REPORT WE POINTED OUT THE NEED FOR
MORE EFFECTIVE UTILIZATION OF DEPOT STOCKS AND WE WERE ADVISED THAT
IMMEDIATE STEPS WERE BEING TAKEN TO CARRY OUT THE CORRECTIVE ACTION
RECOMMENDED. WE INDICATED AT THAT TIME THAT WE WOULD EVALUATE THE
EFFECTIVENESS OF THE REVISED PROCEDURES IN OUR NEXT REVIEW. SIMILAR
REVIEWS HAVE BEEN MADE AT OTHER SUPPLY ACTIVITIES IN EUROPE. WE ARE
CURRENTLY PREPARING A REPORT SUMMARIZING OUR WORK IN SUPPLY ACTIVITIES
OF THE AIR FORCE INCLUDING ACTIVITIES IN THE EUROPEAN THEATER.
WE HAVE LEARNED THAT THE OFFICE OF THE INSPECTOR GENERAL USAF HAS
ISSUED A REPORT ENTITLED ,SURVEY OF EFFECTIVENESS OF DEPOT CLOSE-OUT
PROCEDURES IN EUROPE AND NORTH AFRICA, 13 JANUARY--- 20 FEBRUARY 1959.'
IN VIEW OF OUR WORK AT THESE ACTIVITIES, OUR EUROPEAN BRANCH INFORMALLY
REQUESTED AMFEA OFFICIALS TO FURNISH US A COPY OF THE REPORT FOR OUR
REVIEW. WE WERE ADVISED THAT NO COPY WAS AVAILABLE IN EUROPE AND,
FURTHERMORE, THAT THEY WERE WITHOUT AUTHORITY TO MAKE SUCH A REPORT
AVAILABLE TO US. IT WAS SUGGESTED THAT WE OBTAIN THE REPORT AT
DEPARTMENTAL LEVEL.
WE BELIEVE IT IS ESSENTIAL IN OUR REVIEW OF THE EFFECTIVENESS OF THE
REVISED PROCEDURES AND ADMINISTRATIVE ACTIONS TAKEN AS THE RESULT OF OUR
RECOMMENDATIONS THAT WE REVIEW THE INFORMATION CONTAINED IN THE
INSPECTOR GENERAL'S REPORT. THIS WILL ENABLE US TO AVOID ANY REPETITION
OF WORK ALREADY ACCOMPLISHED BY THE AIR FORCE AND WOULD CONTRIBUTE TO
THE COMPLETENESS AND OBJECTIVITY OF OUR EVALUATION OF AIR FORCE
ADMINISTRATION.
WE CANNOT FULLY DISCHARGE OUR STATUTORY RESPONSIBILITIES WITHOUT
ACCESS TO THE REPORTS RESULTING FROM INTERNAL REVIEWS OF ADMINISTRATIVE
PRACTICES AND ACTIVITIES MADE BY THE INSPECTOR GENERAL OF THE AIR FORCE,
INSPECTOR GENERALS OF AIR FORCE COMMANDS, AND OTHER MANAGEMENT REVIEW
GROUPS. AS WE HAVE PREVIOUSLY ADVISED YOU, THE CONGRESSIONAL POLICY SET
FORTH IN SECTION 111 (D) OF THE ACCOUNTING AND AUDITING ACT OF 1950
PROVIDES THAT OUR AUDIT WILL BE DIRECTED, AMONG OTHER THINGS, TO
DETERMINING THE ADEQUACY OF THE AGENCIES' INTERNAL FINANCIAL CONTROL
OPERATIONS. ALSO, THE REPORTS ON INTERNAL REVIEWS OF ACTIVITIES ARE
CLEARLY A PART OF "INTERNAL AUDIT AND CONTROL" WITHIN SECTION 117 (A) OF
THE ACCOUNTING AND AUDITING ACT OF 1950, AND SO SPECIFICALLY REQUIRED TO
BE CONSIDERED BY THE COMPTROLLER GENERAL IN THE CONDUCT OF HIS AUDITS.
SUCH INFORMATION SHOULD NOT BE WITHHELD OR SUBJECT TO PROCEDURES
DESIGNED TO SCREEN OR UNNECESSARILY DELAY THE RELEASE OF OFFICIAL
DOCUMENTS, PAPERS, OR RECORDS TO THE GENERAL ACCOUNTING OFFICE. THE AIR
FORCE REQUIREMENT THAT INDIVIDUAL REQUESTS FOR ACCESS TO SUCH REPORTS
AND RECORDS BE CONSIDERED BY THE SECRETARY OF THE AIR FORCE SERIOUSLY
DELAYS THE GENERAL ACCOUNTING OFFICE IN THE PERFORMANCE OF ITS DUTIES
AND IS AN EXTREMELY COSTLY AND WASTEFUL PRACTICE FOR BOTH THE GENERAL
ACCOUNTING OFFICE AND THE AIR FORCE.
YOUR COOPERATION IS REQUESTED IN PROVIDING PROMPTLY A COPY OF THE
REPORT ENTITLED "SURVEY OF EFFECTIVENESS OF DEPOT CLOSE-OUT PROCEDURES
IN EUROPE AND NORTH AFRICA, 13 JANUARY--- 20 FEBRUARY 1959" TO THE
DEFENSE ACCOUNTING AND AUDITING DIVISION OF THIS OFFICE FOR USE IN THEIR
REVIEW OF SUPPLY ACTIVITIES IN EUROPE AND NORTH AFRICA. WE REQUEST,
ALSO, THAT YOU RECONSIDER YOUR POLICY AND PROCEDURES IN MAKING SUCH
REPORTS AVAILABLE TO THE GENERAL ACCOUNTING OFFICE.
B-136485, JUL. 13, 1959
TO MR. HARRY E. WOOD:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 15, 1959, WITH RESPECT TO
OUR REPORT OF JUNE 11, 1959, TO THE CHIEF CLERK OF THE COURT OF CLAIMS,
IN THE CASE OF JAMES B. COUSART V. UNITED STATES, C.CLS. 238-58. YOU
INDICATE THAT IN OUR REPORT NO CREDIT WAS GIVEN FOR MAJOR COUSART'S
SERVICE FROM NOVEMBER 1, 1919 TO NOVEMBER 9, 1920, DURING WHICH PERIOD
HE WAS WITH THE PENNSYLVANIA NATIONAL GUARD.
THE STATEMENT OF SERVICE FURNISHED BY THE ADJUTANT GENERAL'S OFFICE,
DEPARTMENT OF THE ARMY, SHOWS THAT MAJOR COUSART HAD 25 YEARS, 5 MONTHS
AND 3 DAYS' SERVICE FOR LONGEVITY PAY AND RETIREMENT PURPOSES. NO
CREDITABLE SERVICE WAS SHOWN TO HAVE BEEN PERFORMED FROM MAY 22, 1919,
THROUGH JUNE 20, 1923. THE STATEMENT OF NATIONAL GUARD SERVICE
FORWARDED WITH YOUR LETTER SHOWS THAT MAJOR COUSART WAS HONORABLY
DISCHARGED FROM FEDERAL SERVICE MAY 21, 1919, WAS COMMISSIONED AS MAJOR,
PENNSYLVANIA NATIONAL GUARD, NOVEMBER 1, 1919, AND RESIGNED HIS
COMMISSION NOVEMBER 9, 1920. THERE IS NO INFORMATION BEFORE THIS OFFICE
INDICATING THAT MAJOR COUSART'S APPOINTMENT WAS FEDERALLY RECOGNIZED,
NOR IS THERE SUCH A SHOWING IN THE STATEMENT OF SERVICE RECEIVED WITH
YOUR LETTER. ALSO, THE 1931 NATIONAL GUARD REGISTER FAILS TO SHOW THAT
MAJOR COUSART HAD FEDERALLY RECOGNIZED SERVICE DURING THE PERIOD IN
QUESTION.
THE NATIONAL GUARD IS A STATE FORCE AND THE APPOINTMENT OF OFFICERS
THEREIN IS RESERVED TO THE STATES. SECTION 74 OF THE NATIONAL DEFENSE
ACT OF 1916, 39 STAT. 201, AS AMENDED, FIXES THE QUALIFICATIONS FOR
OFFICERS OF THE NATIONAL GUARD TO BE ENTITLED TO RECOGNITION UNDER ITS
PROVISIONS AND REQUIRES THAT THE OFFICERS SUBSCRIBE TO THE OATH SET OUT
IN SECTION 73. SECTION 75 PROVIDES FURTHER THAT EACH OFFICER HEREAFTER
APPOINTED AN OFFICER OF THE NATIONAL GUARD MUST SUCCESSFULLY PASS AN
EXAMINATION IN ORDER TO QUALIFY UNDER THAT ACT.
FEDERAL RECOGNITION IS NOT AN APPOINTMENT BUT A DETERMINATION THAT,
FROM AND SUBSEQUENT TO THE DATE STATED, THE OFFICER HAS QUALIFIED UNDER
THE NATIONAL DEFENSE ACT AS AN OFFICER OF THE NATIONAL GUARD. NOT BEING
FEDERALLY RECOGNIZED, AN OFFICER WOULD NOT BE ENTITLED TO ANY PAY FROM
FEDERAL FUNDS AND SERVICE AS SUCH AN OFFICER IS NOT CREDITABLE FOR
LONGEVITY PAY OR RETIREMENT PURPOSES. SEE GENERALLY, 22 COMP. GEN.
439, 442; 23 ID. 755, 760; 24 ID. 507 AND 10 U.S.C. 1332B (4), 70A
STAT. 103.
INASMUCH AS THE OFFICIAL RECORDS DO NOT INDICATE THE OFFICER'S
APPOINTMENT AS MAJOR, NOVEMBER 1, 1919 WAS FEDERALLY RECOGNIZED, THE
PERIOD FROM NOVEMBER 1, 1919 TO NOVEMBER 9, 1920 WAS PROPERLY EXCLUDED
FROM THE COMPUTATION OF HIS SERVICE. ACCORDINGLY, WE MUST ADHERE TO THE
COMPUTATION SET OUT IN OUR REPORT OF JUNE 11, 1959, TO THE CHIEF CLERK
OF THE COURT OF CLAIMS.
B-138452, JUL. 13, 1959
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 19, 1959, FORWARDING A LIST
CONTAINING THE NAMES OF 185 PERSONS WHO ARE MEMBERS OF THE ARMY RESERVE
OR THE NATIONAL GUARD, WHO ARE OVER 60 YEARS OF AGE, AND WHO HAVE BEEN
RETAINED IN AN ACTIVE RESERVE STATUS SUBSEQUENT TO QUALIFYING FOR
RETIRED PAY UNDER 10 U.S.C. 1331. THE LETTER--- ASSIGNED SUBMISSION NO.
SS-A-420, BY THE DEPARTMENT OF DEFENSE PAY AND ALLOWANCE COMMITTEE---
CONTAINS YOUR DETERMINATION THAT THE INDIVIDUALS LISTED ARE CONSIDERED
TO HAVE BEEN RETAINED IN AN ACTIVE RESERVE STATUS PURSUANT TO LAW, AFTER
THE DATE THEY QUALIFIED FOR TITLE III RETIRED PAY (THAT IS, RETIRED PAY
AUTHORIZED BY TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087,
WHICH WAS SUPERSEDED BY CHAPTER 67 AND OTHER PROVISIONS OF TITLE 10,
U.S. CODE).
IN OUR DECISION OF APRIL 1, 1959, B-138452, 38 COMP. GEN. - , IT WAS
STATED THAT IN ORDER FOR A MEMBER TO QUALIFY FOR INCREASED RETIRED PAY
BENEFITS UNDER 10 U.S.C. 676, HIS RETENTION ON ACTIVE DUTY OR IN
SERVICE IN A RESERVE COMPONENT MUST BE DIRECTED "BY ORDER OF THE
SECRETARY CONCERNED.'
WE INDICATED THAT THE AUTHORITY VESTED IN THE SECRETARIES CONCERNED
WAS INTENDED TO BE USED SPARINGLY AND DISCRIMINATINGLY, AND THAT UNLESS
A MEMBER WAS "RETAINED" UNDER AN ORDER, INSTRUCTION OR REGULATION ISSUED
BY THE APPROPRIATE SECRETARY, SERVICE PERFORMED BY THE MEMBER AFTER
BECOMING QUALIFIED FOR RETIREMENT PAY MAY NOT BE COUNTED TO INCREASE THE
RETIREMENT PAY BENEFITS TO WHICH HE WOULD BE ENTITLED ON THE BASIS OF
HIS SERVICE AND GRADE ON HIS SIXTIETH BIRTHDAY.
YOUR PRESENT LETTER PRESENTS THE QUESTION WHETHER THE DETERMINATION
MADE THEREIN MAY BE ACCEPTED AS MEETING THE "ORDER" REQUIREMENTS OF 10
U.S.C. 676 IN THE CASES OF THE PERSONS NAMED IN THE LIST TO WHICH SUCH
DETERMINATION APPLIES.
AFTER CAREFUL CONSIDERATION OF THE VARIOUS FACTORS INVOLVED, AN
AFFIRMATIVE ANSWER TO SUCH QUESTION APPEARS WARRANTED AND YOU ARE
ADVISED THAT THE MEMBERS LISTED WILL BE CONSIDERED AS RETAINED FOR
SERVICE IN A RESERVE COMPONENT BY YOUR ORDER, AFTER QUALIFYING FOR
RETIRED PAY, AND WILL BE CONSIDERED AS ENTITLED TO THE BENEFITS WHICH
ACCRUE TO ELIGIBLE MEMBERS UNDER 10 U.S.C. 676, OR SECTION 203 (E) OF
THE ACT OF JUNE 29, 1948, 62 STAT. 1088, FROM WHICH THE CODE PROVISION
WAS DERIVED.
B-139696, JUL. 13, 1959
TO BROWNWOOD MANUFACTURING COMPANY:
FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 22, 1959,
PROTESTING ANY AWARD UNDER INVITATIONS FOR BIDS NOS.
QM/CTM/-36-243-59-644 AND QM/CTM/-36-243-59-684 PENDING FURTHER
DETERMINATION OF YOUR STATUS. WHILE THE TELEGRAM INDICATES THAT A
FURTHER EXPLANATION WOULD FOLLOW, WE ASSUME, SINCE SUCH EXPLANATION HAS
NOT BEEN RECEIVED, THAT YOU HAVE NOTHING IN ADDITION TO SUBMIT WITH
RESPECT TO THE PROTEST.
INVITATION NO. 644 WAS ISSUED ON APRIL 1, 1959, AND OPENED ON APRIL
22, 1959. INVITATION NO. 684 WAS ISSUED ON APRIL 9, 1959, AMENDED BY
ADDENDUM NO. 1 DATED APRIL 17, 1959, AND OPENED ON APRIL 30, 1959.
INVITATION NO. 644 WAS ISSUED ON APRIL 1, 1959, AND OPENED ON
FOLLOWS:
"BIDS OR PROPOSALS UNDER THIS PROCUREMENT ARE SOLICITED FROM SMALL
BUSINESS CONCERNS ONLY AND THIS PROCUREMENT IS TO BE AWARDED ONLY TO ONE
OR MORE SMALL BUSINESS CONCERNS. THIS ACTION IS BASED ON A
DETERMINATION BY THE CONTRACTING OFFICER, ALONE OR IN CONJUNCTION WITH A
REPRESENTATIVE OF THE SMALL BUSINESS ADMINISTRATION, THAT IT IS IN THE
INTEREST OF MAINTAINING OR MOBILIZING THE NATION'S FULL PRODUCTIVE
CAPACITY OR IN THE INTEREST OF WAR OR NATIONAL DEFENSE PROGRAMS.'
SMALL BUSINESS SET-ASIDES OF THIS TYPE ARE AUTHORIZED BY SECTION 15
OF THE SMALL BUSINESS ACT, 72 STAT. 395.
BECAUSE OF A DETERMINATION BY THE SMALL BUSINESS ADMINISTRATION ON
THE STATUS OF BROWNWOOD IN CONNECTION WITH ANOTHER INVITATION, THE
CONTRACTING OFFICER REQUESTED A DETERMINATION AS TO WHETHER THAT FIRM
QUALIFIED AS A SMALL BUSINESS CONCERN UNDER THE PROCUREMENT HERE BEING
CONSIDERED. THE SMALL BUSINESS ADMINISTRATION ADVISED THE PROCURING
AGENCY ON JUNE 5, 1959, THAT BROWNWOOD, FOR PURPOSES OF THIS
PROCUREMENT, WAS DETERMINED TO BE A LARGE BUSINESS. SUCH DETERMINATION
BY THE SMALL BUSINESS ADMINISTRATION IS MADE CONCLUSIVE ON THE
PROCUREMENT AGENCIES OF THE GOVERNMENT BY SECTION 8 (B) (6) OF THE SMALL
BUSINESS ACT, 72 STAT. 390. IN VIEW THEREOF, IT IS CLEAR THAT BROWNWOOD
IS NOT ELIGIBLE FOR AWARD UNDER THE TERMS OF THE INVITATIONS AND WE MUST
CONCLUDE THAT THE BIDS SUBMITTED BY BROWNWOOD PURSUANT TO THE
INVITATIONS WERE PROPERLY REJECTED.
B-139698, JUL 13, 1959
TO THE GILLSAM MANUFACTURING COMPANY, INC. :
FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 22, 1959,
PROTESTING ANY AWARD PURSUANT TO INVITATION FOR BIDS NO.
QM/CTM/-36-243-59-677, ISSUED APRIL 9, 1959, AND MODIFIED BY ADDENDUM
NO. 1 DATED APRIL 20, 1959, PENDING CLARIFICATION OF YOUR STATUS.
WHILE THE TELEGRAM INDICATES THAT A FURTHER EXPLANATION WILL FOLLOW, WE
ASSUME, SINCE SUCH EXPLANATION HAS NOT BEEN RECEIVED IN THE INTERVENING
PERIOD, THAT YOU HAVE NOTHING ADDITIONAL TO SUBMIT WITH RESPECT TO THE
PROTEST.
WE ARE ALSO IN RECEIPT OF A TELEGRAM OF MAY 22, 1959, PROTESTING THE
SAME AWARD, BEARING THE NAME OF MR. ROSENFELD AS REPRESENTATIVE OF THE
BONHAM MANUFACTURING COMPANY. THE FOLLOWING APPLIES EQUALLY TO BOTH
PROTESTS.
UPON OPENING THE BIDS ON APRIL 27, 1959, IT WAS DETERMINED THAT,
SOLELY ON THE BASIS OF BID PRICE, BOTH GILLSAM AND BONHAM WOULD BE
ELIGIBLE FOR AWARD OF SOME PORTION OF THE PROCUREMENT. THE INVITATION,
HOWEVER, PROVIDED AT PAGE 21 AS FOLLOWS:
"BIDS OR PROPOSALS UNDER THIS PROCUREMENT ARE SOLICITED FROM SMALL
BUSINESS CONCERNS ONLY AND THIS PROCUREMENT IS TO BE AWARDED ONLY TO ONE
OR MORE SMALL BUSINESS CONCERNS. THIS ACTION IS BASED ON A
DETERMINATION BY THE CONTRACTING OFFICER, ALONE OR IN CONJUNCTION WITH A
REPRESENTATIVE OF THE SMALL BUSINESS ADMINISTRATION, THAT IT IS IN THE
INTEREST OF MAINTAINING OR MOBILIZING THE NATION'S FULL PRODUCTIVE
CAPACITY OR IN THE INTEREST OF WAR OR NATIONAL DEFENSE PROGRAMS.'
SMALL BUSINESS SET-ASIDES OF THIS TYPE ARE AUTHORIZED BY SECTION 15
OF THE SMALL BUSINESS ACT, 72 STAT. 395.
BY LETTER OF MAY 1, 1959, THE SMALL BUSINESS STATUS OF GILLSAM AND
BONHAM WAS CHALLENGED BY ONE OF THE OTHER BIDDERS. IN ACCORDANCE WITH
THE PROCEDURE PRESCRIBED IN SECTION 1-703 OF THE ARMED SERVICE
PROCUREMENT REGULATION, THE CONTRACTING OFFICER, ON MAY 4, 1959,
REQUESTED A SIZE DETERMINATION FROM THE SMALL BUSINESS ADMINISTRATION.
BY MEMORANDA OF MAY 20, 1959, FROM THE SMALL BUSINESS ADMINISTRATION
REPRESENTATIVE, THE PROCURING AGENCY WAS ADVISED OF THE SMALL BUSINESS
ADMINISTRATION DETERMINATION THAT NEITHER GILLSAM NOR BONHAM QUALIFIED
AS A SMALL BUSINESS UNDER THAT PROCUREMENT. SUCH DETERMINATION IS
CONCLUSIVE ON THE PROCUREMENT AGENCIES OF THE GOVERNMENT UNDER SECTION 8
(B) (6) OF THE SMALL BUSINESS ACT, 72 STAT. 390. IN VIEW THEREOF, IT IS
CLEAR THAT NEITHER FIRM IS ELIGIBLE FOR AWARD UNDER THE TERMS OF THE
INVITATION AND WE MUST CONCLUDE THAT THE BIDS OF GILLSAM AND BONHAM WERE
PROPERLY REJECTED.
B-24693, JUL. 13, 1959
TO MASTER SERGEANT CORNELIUS J. MURPHY:
YOUR LETTER OF MAY 7, 1959, REQUESTS REVIEW OF OUR SETTLEMENT OF
SEPTEMBER 29, 1954, DISALLOWING YOUR CLAIM FOR BASIC ALLOWANCE IN LIEU
OF QUARTERS FOR YOUR DEPENDENT MOTHER DURING THE PERIOD OF OCTOBER 1,
1949, THROUGH JUNE 16, 1950, AND SUPPLIES ADDITIONAL INFORMATION
REQUESTED IN LETTER DATED APRIL 5, 1955, B-24693.
THE RECORD INDICATES THAT YOU WERE SERVING AS A MASTER SERGEANT
STATIONED AT FORT MONMOUTH, NEW JERSEY, DURING THE PERIOD OF YOUR CLAIM
AND THAT YOUR MOTHER, MRS. MARGARET MURPHY, RESIDED AT 41-21 54TH
STREET, WOODSIDE, LONG ISLAND, NEW YORK. PAY RECORDS AVAILABLE TO THIS
OFFICE INDICATE THAT YOU WERE PAID A BASE PAY OF $198 PER MONTH AS A
MASTER SERGEANT WITH OVER 12 YEARS' SERVICE AND $1.25 PER DAY AS
QUARTERS ALLOWANCE FOR YOUR DEPENDENT MOTHER WAS PAID TO HER, DURING THE
PERIOD OF OCTOBER 1, 1949, THROUGH JANUARY 30, 1950, UNDER THE SAVED PAY
PROVISION OF SECTION 515 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63
STAT. 831, 37 U.S.C. 315, WHICH IS AS FOLLOWS:
"SEC. 515. (A) NO MEMBER SERVING ON ACTIVE DUTY ON THE EFFECTIVE
DATE OF THIS ACT SHALL, PRIOR TO JULY 1, 1952, AND WHILE SERVING ON
CONTINUOUS ACTIVE DUTY, INCLUDING FOR THE PURPOSE OF SUCH CONTINUOUS
ACTIVE-DUTY SERVICE IN A REENLISTMENT ENTERED INTO WITHIN THREE MONTHS
FROM THE DATE OF LAST DISCHARGE, SUFFER ANY REDUCTION BY REASON OF THIS
ACT IN THE TOTAL COMPENSATION WHICH HE IS ENTITLED TO RECEIVE UNDER ANY
PROVISION OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING SUCH
EFFECTIVE DATE: PROVIDED, THAT (1) THE PROVISIONS OF THIS SUBSECTION
SHALL CEASE TO APPLY TO SUCH MEMBER WHENEVER HE SHALL BECOME ENTITLED TO
RECEIVE TOTAL COMPENSATION IN EXCESS OF THE AMOUNT TO WHICH HE WAS
ENTITLED ON THE DAY PRECEDING SUCH EFFECTIVE DATE; AND (2) THE
PROVISIONS OF THIS SUBSECTION SHALL CEASE TO APPLY TO ANY PART OF SUCH
TOTAL COMPENSATION UPON THE FAILURE OF SUCH MEMBER TO QUALIFY THEREFOR *
* *.'
THE OFFICIAL PAY RECORDS DO NOT INDICATE THAT ANY COLLECTION OR
CHECKAGE OF PREVIOUSLY PAID ALLOWANCE WAS MADE IN YOUR PAY ACCOUNT
DURING THE PERIOD OF OCTOBER 1, 1949, THROUGH DECEMBER 31, 1950. AN
EXAMINATION OF THE ACCOUNTS OF MAJOR H. C. EICHEN, FORT MONMOUTH, NEW
JERSEY, FOR THE MONTHS OF JANUARY, FEBRUARY AND MARCH 1950 BY OUR ARMY
AUDIT BRANCH DOES NOT REVEAL A COLLECTION OF $202.50 FROM YOU AS YOU
CONTEND. IT THEREFORE APPEARS THAT YOU WERE PAID THE ALLOWANCE CLAIMED
FOR THE PERIOD OF OCTOBER 1, 1949, THROUGH JANUARY 30, 1950, AND IT DOES
NOT APPEAR THAT YOU HAVE SUBSEQUENTLY REFUNDED THE SUMS PAID AS ALLEGED.
IN THE ABSENCE OF EVIDENCE ESTABLISHING THAT YOU REPAID THAT AMOUNT TO
THE GOVERNMENT, NO ACTION MAY BE TAKEN TO REFUND IT TO YOU.
WHILE YOU HAD BEEN PAID UNDER THE SAVED PAY PROVISIONS OF SECTION 515
(A) OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, PRIOR TO FEBRUARY 1,
1950, IT APPEARS FROM THE OFFICIAL PAY RECORDS THAT YOUR ENTITLEMENT TO
THE BENEFITS OF THAT PROVISION WERE ERRONEOUSLY TERMINATED AFTER THAT
DATE. IT APPARENTLY WAS ADMINISTRATIVELY DETERMINED THAT, SINCE YOUR
SAVED PAY TOTALED $233 FOR THE MONTH OF FEBRUARY ($198 AS PAY OF A
MASTER SERGEANT WITH OVER 12 YEARS' SERVICE PLUS $35 ALLOWANCE IN LIEU
OF QUARTERS FOR YOUR DEPENDENT MOTHER AT THE RATE OF $1.25 PER DAY FOR
28 DAYS) AND THE PAY OTHERWISE PROVIDED BY THE CAREER COMPENSATION ACT
OF 1949, TOTALED $235.20 FOR THAT MONTH, YOU WERE NO LONGER ENTITLED TO
"SAVED PAY.' THIS DETERMINATION APPEARS INCORRECT IN THAT IT SEEMS
UNLIKELY THAT THE CONGRESS INTENDED TO TERMINATE THE BENEFITS OF THE
SAVED PAY PROVISION OF SECTION 515 (A) SIMPLY BECAUSE AN ALLOWANCE FOR
QUARTERS WAS REDUCED BELOW THE USUAL AMOUNT IN THE SHORT MONTH OF
FEBRUARY. CONSEQUENTLY IT APPEARS THAT YOU WERE ENTITLED TO THE
BENEFITS OF THE "SAVED PAY" PROVISIONS OF SECTION 515 (A) OF THE CAREER
COMPENSATION ACT OF 1949, FOR THE PERIOD OF FEBRUARY 1, 1950, THROUGH
JUNE 16, 1950, AS CLAIMED.
HOWEVER, THE EFFECT OF SECTION 515 (A) IS TO PRESERVE THE RIGHT TO
RECEIVE THE LARGER OF THE SUMS WHICH RESULT FROM COMPUTATION OF PAY
UNDER SAVED PAY PROVISIONS AND PAY OTHERWISE PROVIDED BY THE CAREER
COMPENSATION ACT. YOU ARE THEREFORE ENTITLED TO THE DIFFERENCE BETWEEN
THAT WHICH YOU RECEIVED AND THAT WHICH SHOULD HAVE BEEN PAID TO YOU.
THE PAY RECORDS SHOW THAT YOU WERE PAID $235.20 PER MONTH FOR THE
SUBJECT PERIOD AS SHOWN BELOW AND IT APPEARS THAT YOU SHOULD HAVE BEEN
PAID SAVED PAY IN THE MANNER AND AMOUNTS INDICATED BELOW.
TABLE
SAVED PAY AT $198 PER MONTH
FEBRUARY 1--- JUNE 16, 1950 $ 897.60
QUARTERS ALLOWANCE FOR DEPENDENT MOTHER
AT $1.25 PER DAY FEBRUARY 1--- JUNE 16,
1950 170.00
------------
$ 1,067.60
LESS PAY RECEIVED AT $235.20 PER MONTH
FEBRUARY 1--- JUNE 16, 1950 $ 1,066.24
-------------
BALANCE DUE $ 1.36
ACCORDINGLY, SETTLEMENT WILL ISSUE IN THE AMOUNT OF $1.36.
THERE IS NO AUTHORITY OF LAW FOR THE ALLOWANCE OF A QUARTERS
ALLOWANCE FOR YOUR MOTHER IN ADDITION TO BASIC PAY AT THE RATE OF
$235.20 FOR THE PERIOD FEBRUARY 1 TO JUNE 16, 1950, SINCE IT DOES NOT
APPEAR THAT YOUR MOTHER RESIDED IN YOUR HOUSEHOLD WITHIN THE MEANING OF
SECTION 102 (G) OF THE CAREER COMPENSATION ACT, 63 STAT. 804, 37 U.S.C.
231 (G), WHICH PROVIDED IN PART AS OLLOWS:
"/G) THE TERM "DEPENDENT" SHALL INCLUDE AT ALL TIMES AND IN ALL
PLACES THE LAWFUL WIFE AND UNMARRIED LEGITIMATE CHILDREN, UNDER
TWENTY-ONE YEARS OF AGE, OF ANY MEMBER OF THE UNIFORMED SERVICES, EXCEPT
AS HEREINAFTER LIMITED IN THIS SUBSECTION. SUCH TERM SHALL INCLUDE THE
FATHER OR MOTHER OF SUCH MEMBER, PROVIDED HE OR SHE IS IN FACT DEPENDENT
ON SUCH MEMBER FOR OVER HALF OF HIS OR HER SUPPORT AND ACTUALLY RESIDES
IN THE HOUSEHOLD OF SAID MEMBER. * * *"
THIS PROVISION DEFINING THE WORD "DEPENDENT" AS USED IN THE ACT, WAS
CONSIDERED IN OUR DECISION 29 COMP. GEN. 280 WHEREIN IT WAS STATED THAT
A MEMBER IS NOT ENTITLED TO QUARTERS ALLOWANCE ON ACCOUNT OF AN
OTHERWISE DEPENDENT PARENT WHO, FOR ANY REASON, RESIDES ELSEWHERE THAN
IN QUARTERS MAINTAINED BY THE MEMBER AS A RESIDENCE AT HIS PERMANENT
DUTY STATION.
WHILE YOU INDICATE THAT YOU CONSIDERED THE QUARTERS MAINTAINED BY YOU
FOR YOUR MOTHER AT WOODSIDE AS YOUR HOUSEHOLD, YOU IN FACT DID NOT
RESIDE AT THAT PLACE BUT OCCUPIED QUARTERS IN BARRACKS AT FORT MONMOUTH.
OUR DECISION, 29 COMP. GEN. 280, ALSO STATED THAT THE QUARTERS
ALLOWANCE PROVIDED BY SECTION 203 OF THE CAREER COMPENSATION ACT OF
1949, SUPRA, WAS NOT ON THE BASIS OF DEPENDENCY BUT RATHER TO PROVIDE
ADEQUATE QUARTERS FOR THE MEMBER AT, OR CONVENIENT TO, HIS PERMANENT
STATION. CONSEQUENTLY, YOU DID NOT QUALIFY UNDER THE CAREER
COMPENSATION ACT OF 1949 FOR A BASIC ALLOWANCE FOR QUARTERS AND NO
ALLOWANCE FOR YOUR DEPENDENT MOTHER CAN BE CONSIDERED PAYABLE FOR THE
PERIOD OF FEBRUARY 1, 1950, THROUGH JUNE 16, 1950, UNDER THAT ACT.
ALSO, YOU MAY NOT RECEIVE PAY AT THE RATE OF $235.20 A MONTH FOR THAT
PERIOD UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT IN ADDITION
TO A QUARTERS ALLOWANCE UNDER THE PROVISIONS OF THE PAY READJUSTMENT ACT
OF 1942, 56 STAT. 359. THERE IS NO AUTHORITY OF LAW TO ALLOW YOU PAY
UNDER THE 1949 ACT AND A QUARTERS ALLOWANCE UNDER THE 1942 ACT.
B-59971, JUL. 13, 1959
TO MRS. NERVIE DAVIS:
REFERENCE IS MADE TO A LETTER DATED JULY 3, 1959, WRITTEN ON YOUR
BEHALF BY MR. J. HARRISON WESTOVER, ATTORNEY AT LAW, FURTHER CONCERNING
YOUR CLAIM FOR THE BALANCE OF THE ARREARS OF PAY DUE IN THE CASE OF YOUR
LATE SON, THOMAS E. DAVIS, AS OF FEBRUARY 1, 1945, THE DATE OF RECEIPT
OF THE EVIDENCE OF HIS DEATH WHILE SERVING IN THE ARMED FORCES OF THE
UNITED STATES.
BY DECISION OF JULY 1, 1959, B-59971, WE ADVISED YOU, AMONG OTHER
THINGS, THAT WE WERE ENDEAVORING TO ASCERTAIN FROM THE VETERANS
ADMINISTRATION WHETHER ITS RECORDS SHOW THE FATHER OF YOUR LATE SON TO
BE LIVING OR DEAD. WE HAVE NOW INFORMALLY ASCERTAINED FROM THAT AGENCY
THAT A RECORD OF ONLY ONE CYRUS G. DAVIS HAS BEEN LOCATED AND THAT HE IS
CURRENTLY RECEIVING VETERANS' BENEFITS FROM THAT ADMINISTRATION INCIDENT
TO HIS SERVICE IN THE UNITED STATES ARMY FROM MAY 2, 1914, TO JUNE 4,
1920, AND FROM OCTOBER 5, 1946, TO MARCH 4, 1949. IT IS FURTHER
REPORTED THAT THE LATEST CORRESPONDENCE OF THAT ADMINISTRATION WITH THE
VETERAN IS DATED FEBRUARY 19, 1957. SUCH RECORDS ALSO SHOW THAT CYRUS
G. DAVIS ADVISED THE VETERANS ADMINISTRATION THAT HE WAS BORN JANUARY 7,
1895, AT BANYON, PENNSYLVANIA; AND THAT HE WAS MARRIED ON JUNE 19,
1921, AT ALTOONA, PENNSYLVANIA, TO NERVIE NICKOLSEN. HE LIKEWISE
ADVISED THE ADMINISTRATION THAT FOUR CHILDREN WERE BORN OF THIS
MARRIAGE, NAMELY, CRISSIE, BORN DECEMBER 1, 1921, THOMAS, BORN AUGUST 6,
1923, MARY, BORN SEPTEMBER 10, 1924, AND MARSHALL, BORN FEBRUARY 2,
1926.
SINCE THE ABOVE-MENTIONED PERSON APPARENTLY IS THE FATHER OF YOUR
LATE SON AND THE RECORD INDICATES THAT HE IS STILL LIVING, THERE IS NO
FURTHER ACTION WE MAY TAKE AT THIS TIME WITH RESPECT TO YOUR CLAIM FOR
THE BALANCE DUE YOUR SON'S ESTATE. IN THAT CONNECTION IT MAY AGAIN BE
POINTED OUT THAT THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, AND THE
SUPERSEDING PROVISIONS OF SECTION 29 OF THE ACT OF SEPTEMBER 2, 1958, 72
STAT. 1563, CONSTITUTE OUR SOLE AUTHORITY FOR SETTLING YOUR LATE SON'S
ACCOUNT. UNDER THE PROVISIONS OF THOSE STATUTES THERE IS NO AUTHORITY
TO ALLOW ANY AMOUNT TO THE ADMINISTRATRIX OF A DECEASED HEIR. AND,
WHILE A PROBATE COURT OF THE STATE OF PENNSYLVANIA HAS JUDICIALLY
DETERMINED THAT THE FATHER IS PRESUMED TO BE DEAD, SUCH DETERMINATION IS
NOT CONCLUSIVE ON THIS OFFICE AND CONSTITUTES NO LEGAL BASIS TO ALLOW
YOU THE BALANCE DUE AS THE SOLE SURVIVING PARENT SINCE THE RECORDS OF
THE VETERANS ADMINISTRATION INDICATE THAT THE FATHER IS STILL LIVING.
B-136525, JUL. 10, 1959
TO THE SIDRAN SPORTSWEAR, INC. :
WE REFER TO YOUR LETTER OF APRIL 23, 1959, AND PRIOR CORRESPONDENCE,
CONCERNING A PROTEST BY THE BONHAM MANUFACTURING COMPANY, INC., OF
BONHAM, TEXAS, AGAINST REJECTION OF ITS LOW BID SUBMITTED PURSUANT TO
INVITATION NO. QM/CTM/-36-243-58-772.
THE INVITATION, ISSUED APRIL 18, 1958, SOLICITED BIDS FOR 526,590
MAN'S WOOL BLUE SERGE COATS IN ACCORDANCE WITH MILITARY SPECIFICATION
MIL-C-3310A/BSAF), AS AMENDED. THE REPORT AND RECOMMENDATION OF THE
CONTRACTING OFFICER STATES THAT THE BID SUBMITTED BY BONHAM WAS REJECTED
UPON A DETERMINATION THAT IT WAS NOT A RESPONSIBLE CONTRACTOR WITHIN THE
MEANING OF SECTION 1-307 OF THE ARMED SERVICES PROCUREMENT REGULATION.
MORE SPECIFICALLY, THE BID WAS REJECTED BECAUSE OF POOR PERFORMANCE ON A
THEN CURRENT CONTRACT FOR THE SAME ITEM AND BECAUSE OF THE LACK OF
,KNOW-HOW" AND ADEQUATE PERSONNEL. THE CURRENT CONTRACT REFERRED TO IS
NO. DA-36-243-QM/CTM/-1689, 01-724-C-58 AWARDED TO SIDRAN SPORTSWEAR,
INC., ON JANUARY 24, 1958, FOR DELIVERY OF 75,000 MAN'S WOOL BLUE SERGE
COATS. THERE APPEARS TO BE NO QUESTION THAT A SUFFICIENT
IDENTITY OF INTEREST EXISTS AS TO THE TWO FIRMS SO THAT PERFORMANCE
BY SIDRAN MAY PROPERLY BE CONSIDERED IN ASSESSING THE RESPONSIBILITY OF
BONHAM.
IN AN ENCLOSURE TO A LETTER OF JANUARY 26, 1959, FROM YOUR ATTORNEY,
IT IS CONTENDED THAT THE ALLEGED POOR PERFORMANCE ON CONTRACT NO. 1689
WAS CAUSED TO A LARGE EXTENT BY POOR ADMINISTRATION OF THE CONTRACT ON
THE PART OF GOVERNMENT REPRESENTATIVES; THAT THE GOVERNMENT RETARDED
AND HAMPERED PRODUCTION UNDER THE CONTRACT BY LATE DELIVERY OF MATERIAL;
AND THAT ALTHOUGH THE DELIVERY SCHEDULE WAS EXTENDED FOR THE EXACT
PERIOD OF SUCH DELAY IT CREATED A PRODUCTION IMPEDIMENT WHICH CAUSED
SIGNIFICANT ADDITIONAL DELAY. IT IS ALLEGED FURTHER THAT DELAY WAS
CAUSED BY THE REFUSAL OF THE GOVERNMENT INSPECTOR TO PROMPTLY ADVISE THE
CONTRACTOR OF DEFICIENCIES NOTED IN THE PILOT LOT, BY NUMEROUS CHANGES
IN SPECIFICATION MADE BY THE GOVERNMENT, BY THE FAILURE OF THE
GOVERNMENT TO FURNISH ON TIME A PATTERN FOR SIZE 42L, AND BY THE FAILURE
OF THE GOVERNMENT TO PROMPTLY MAKE ALLOWANCES FOR THE DISCREPANCY
BETWEEN THE LAPEL AND FINISH SHAPER WORKING PATTERN.
CONTRACTS ENTERED INTO AFTER FORMAL ADVERTISING ARE REQUIRED TO BE
AWARDED UNDER 10 U.S.C. 2305 (B) TO THE "RESPONSIBLE BIDDER" WHOSE BID
CONFORMS TO THE INVITATION AND WILL BE MOST ADVANTAGEOUS
TO THE UNITED STATES. A RESPONSIBLE CONTRACTOR UNDER ASPR 1-903.1
(IV) MUST HAVE A SATISFACTORY RECORD OF PERFORMANCE, AND A SERIOUS
DELINQUENCY IN CURRENT CONTRACT PERFORMANCE MAY REQUIRE A PRESUMPTION
THAT THE CONTRACTOR DOES NOT HAVE SUCH SATISFACTORY RECORD. (THE
MATERIAL IN ASPR 1-903.1 (IV) WAS AT THE TIME OF BID REJECTION FOUND IN
SUBSTANTIALLY SIMILAR FORM AT ASPR 1-307.) WE HAVE HELD THAT A HISTORY
OF DELINQUENT PERFORMANCE UNDER PRIOR CONTRACTS IS A PROPER BASIS FOR
DETERMINING THAT A BIDDER IS NOT RESPONSIBLE. 37 COMP. GEN. 798; ID.
756.
AS INDICATED ABOVE, IT APPEARS TO BE YOUR CONTENTION THAT ANY
DEFICIENCY IN PERFORMANCE, INCLUDING DELAY, UNDER CONTRACT NO. 1689 WAS
CAUSED BY GOVERNMENT REPRESENTATIVES, AND THAT IF THE GOVERNMENT HAD
PROPERLY FULFILLED ITS OBLIGATIONS UNDER THE CONTRACT SIDRAN WOULD HAVE
BEEN ABLE TO PERFORM SATISFACTORILY AND IN ACCORDANCE WITH THE
PRESCRIBED DELIVERY SCHEDULE.
CONTRACT NO. 1689 INCORPORATED, BY REFERENCE, STANDARD FORM 32
(NOVEMBER 1949 EDITION) WHICH PROVIDES AT PARAGRAPH 12:
"12. DISPUTES
"EXCEPT AS OTHERWISE PROVIDED IN THIS CONTRACT, ANY DISPUTE
CONCERNING A QUESTION OF FACT ARISING UNDER THIS CONTRACT WHICH IS NOT
DISPOSED OF BY AGREEMENT SHALL BE DECIDED BY THE CONTRACTING OFFICER,
WHO SHALL REDUCE HIS DECISION TO WRITING AND MAIL OR OTHERWISE FURNISH A
COPY THEREOF TO THE CONTRACTOR. WITHIN 30 DAYS FROM THE DATE OF RECEIPT
OF SUCH COPY, THE CONTRACTOR MAY APPEAL BY MAILING OR OTHERWISE
FURNISHING TO THE CONTRACTING OFFICER A WRITTEN APPEAL ADDRESSED TO THE
SECRETARY, AND THE DECISION OF THE SECRETARY OR HIS DULY AUTHORIZED
REPRESENTATIVE FOR THE HEARING OF SUCH APPEALS SHALL BE FINAL AND
CONCLUSIVE: PROVIDED, THAT IF NO SUCH APPEAL IS TAKEN, THE DECISION OF
THE CONTRACTING OFFICER SHALL BE FINAL AND CONCLUSIVE. IN CONNECTION
WITH ANY APPEAL PROCEEDING UNDER THIS CLAUSE, THE CONTRACTOR SHALL BE
AFFORDED AN OPPORTUNITY TO BE HEARS AND TO OFFER EVIDENCE IN SUPPORT OF
ITS APPEAL. PENDING FINAL DECISION OF A DISPUTE HEREUNDER, THE
CONTRACTOR SHALL PROCEED DILIGENTLY WITH THE PERFORMANCE OF THE CONTRACT
AND IN ACCORDANCE WITH THE CONTRACTING OFFICER'S DECISION.'
A REVIEW OF THE CONTRACT FILE INDICATES THAT BY LETTER OF APRIL 1,
1958, YOU REQUESTED AN EXTENSION OF ONE MONTH AND 28 DAYS IN THE
DELIVERY SCHEDULE BECAUSE OF THE DELAY BY THE GOVERNMENT IN FURNISHING
THE SIZE 42L PATTERN. YOUR REQUEST FOR THE EXTENSION WAS DENIED BY
LETTER OF APRIL 15, 1958, FROM THE CONTRACTING OFFICER. THERE IS NO
INDICATION THAT THE DETERMINATION WAS APPEALED WITHIN THE TIME AND IN
THE MANNER PRESCRIBED. SUCH LETTER CONSTITUTES A FINDING OF FACT BY THE
CONTRACTING OFFICER WHICH MUST BE CONSIDERED AS FINAL AND CONCLUSIVE IN
THE ABSENCE OF AN APPEAL. B-138352, APRIL 14, 1959; JOHN ARBORIO, INC.
V. UNITED STATES, 110 C.CLS. 432; ARNOLD M. DIAMOND V. UNITED STATES,
98 C.CLS. 493. FAILURE TO PURSUE THE ADMINISTRATIVE REMEDY PRESCRIBED
BY PARAGRAPH 13 RENDERS THE CONTRACTING OFFICER'S DETERMINATION
CONCLUSIVE EVEN IF IT IS ASSUMED THAT SUCH DETERMINATION WAS ARBITRARY,
CAPRICIOUS, OR SO GROSSLY ERRONEOUS AS TO IMPLY BAD FAITH. UNITED
STATES V. HOLPUCH CO., 328 U.S. 234; UNITED STATES V. BLAIR, 321 U.S.
730; UNITED STATES V. SMITH, 152 FED.SUPP. 322. SINCE THE FINDING WAS
NOT APPEALED PURSUANT TO PARAGRAPH 12, THE CITED AUTHORITIES REQUIRE
THAT IT BE ACCEPTED AS CORRECT. THEREFORE, WE MUST REGARD IT AS
SUFFICIENT, WITHOUT CONSIDERATION OF THE MERITS OF YOUR OTHER
CONTENTIONS, TO SUPPORT THE DETERMINATION OF THE CONTRACTING OFFICER AS
TO LACK OF RESPONSIBILITY. 37 COMP. GEN. 798; ID 756.
WE NOTE, IN ADDITION, THAT ON JULY 23, 1958, THE GOVERNMENT AND THE
CONTRACTOR ENTERED INTO A SUPPLEMENTAL AGREEMENT, CITED AS MODIFICATION
NO. 4, WHEREBY THE DELIVERY SCHEDULE WAS EXTENDED UPON THE PAYMENT BY
THE CONTRACTOR TO THE GOVERNMENT OF $1,500. A SIMILAR SUPPLEMENTAL
AGREEMENT, DESIGNATED AS MODIFICATION NO. 6, WAS ENTERED INTO ON
SEPTEMBER 10, 1958, IN CONSIDERATION OF PAYMENT BY THE CONTRACTOR TO THE
GOVERNMENT OF $3,050. BOTH MODIFICATIONS CONTAIN THE FOLLOWING
RECITATIONS:
"WHEREAS, CONTRACTOR HAS FAILED TO MEET THE ABOVE-RECITED DELIVERY
SCHEDULE; AND
"WHEREAS, CONTRACTOR'S DELINQUENCY IS NOT EXCUSABLE; AND * * *.'
WE ARE AWARE THAT THE CONTRACTOR BY LETTER OF NOVEMBER 7, 1958,
ADVISED THE THEN CONTRACTING OFFICER THAT NOTWITHSTANDING THE EXECUTION
OF THE AFORESAID MODIFICATIONS THE ABOVE QUOTED RECITATIONS WERE
CONSIDERED TO BE CONTRARY TO FACT. NEVERTHELESS, THE FAILURE TO APPEAL
THE FACTUAL DETERMINATIONS UNDERLYING THE MODIFICATIONS, AS PROVIDED IN
PARAGRAPH 12 OF STANDARD FORM 32, APPEARS TO REQUIRE THAT SUCH
DETERMINATIONS BE REGARDED AS CONCLUSIVE OF THE MATTER.
IN ACCORDANCE WITH THE FOREGOING WE MUST CONCLUDE THAT THERE HAS BEEN
PRESENTED NO LEGAL BASIS UPON WHICH WE MAY OBJECT TO THE REJECTION OF
THE BONHAM MANUFACTURING COMPANY'S BID UNDER INVITATION NO.
QM/CTM/-36-243-58-772.
B-139383, JUL. 10, 1959
TO S. SCHAPIRO AND SONS, INC. :
REFERENCE IS MADE TO LETTERS DATED APRIL 10 AND MAY 21, 1959, WITH
ENCLOSURES, FROM THE LAW FIRM OF GORDON, FEINBLATT AND ROTHMAN,
REQUESTING ON YOUR BEHALF A REVIEW OF SETTLEMENT DATED FEBRUARY 5, 1959,
WHICH DISALLOWED YOUR CLAIM FOR $5,374.68 UNDER UNNUMBERED CONTRACT
DATED JUNE 27, 1957.
UNDER THE CONTRACT YOU AGREED TO PURCHASE ALL OF THE SCRAP CANVAS
ACCUMULATED AT 16 MAIL BAG DEPOSITORIES LOCATED THROUGHOUT THE UNITED
STATES AT A PRICE OF ?08798 PER POUND DURING THE PERIOD FROM JULY 1,
1957, TO JUNE 30, 1958.
BY LETTER DATED FEBRUARY 6, 1938, YOU ADVISED THE POST OFFICE
DEPARTMENT, BUREAU OF FACILITIES, THAT YOU HAD RECEIVED A LETTER FROM
THE PAPER MILL WHICH WAS BUYING THE SCRAP CANVAS FROM YOU EXPRESSING
ALARM OVER THE FACT THAT SOME OF THE SCRAP MAIL BAGS IT WAS RECEIVING
HAD HEAT-SEALED PLASTIC PATCHES WHICH WERE DELETERIOUS TO THE
MANUFACTURE OF FINE PAPER. YOU REQUESTED THAT THE BUREAU OF FACILITIES
ALERT THE VARIOUS MAIL BAG DEPOSITORIES TO SEPARATE THE MAIL BAGS WITH
HEAT-SEALED PATCHES AND NOT SHIP THEM TO YOU. IN A LETTER DATED
FEBRUARY 14, 1958, THE BUREAU OF FACILITIES ADVISED YOU THAT THE VARIOUS
MAIL BAG DEPOSITORIES WERE BEING NOTIFIED TO MAKE EVERY EFFORT TO REMOVE
MAIL BAGS CONTAINING HEAT-SEALED PATCHES FROM THE SHIPMENTS BEING MADE
TO YOU, BUT THAT THE BUREAU COULD NOT GUARANTEE THAT THE MAIL BAGS
FURNISHED WOULD BE ENTIRELY FREE FROM HEAT-SEALED PATCHES.
IN A LETTER DATED JULY 15, 1958, YOU REQUESTED REIMBURSEMENT OF THE
SUM OF $5,374.68 REPRESENTING THE EXTRA COSTS INCURRED BY YOU IN
HANDLING THE MAIL BAGS WITH THE HEAT-SEALED PATCHES. IN A LETTER DATED
SEPTEMBER 29, 1958, YOU WERE ADVISED BY THE ADMINISTRATIVE OFFICE THAT
IN VIEW OF THE PROVISIONS OF PARAGRAPH 2 OF THE GENERAL SALE TERMS AND
CONDITIONS AND OF PARAGRAPH 12 OF THE SPECIAL CONDITIONS OF THE
CONTRACT, NO LEGAL BASIS EXISTED FOR PAYMENT OF YOUR CLAIM.
SUBSEQUENTLY, YOU FILED THE CLAIM WITH OUR OFFICE AND IT WAS DISALLOWED
BY SETTLEMENT OF FEBRUARY 5, 1959.
YOUR ATTORNEY'S BASIC CONTENTIONS IN SUPPORT OF HIS REQUEST FOR
REVIEW OF THE SETTLEMENT APPEAR TO BE THAT (1) THE PROVISIONS OF
PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT ARE
NOT APPLICABLE IN YOUR CASE FOR THE REASON THAT THE DESCRIPTION OF THE
MATERIAL FURNISHED IN THE INVITATION WAS NOT BASED ON THE BEST
INFORMATION AVAILABLE TO THE GOVERNMENT; (2) THAT NO OPPORTUNITY FOR
PRIOR INSPECTION BY BIDDERS EXISTED; AND (3) THAT YOU WERE INDUCED TO
FULLY PERFORM THE CONTRACT ON THE REPRESENTATION BY POST OFFICE
DEPARTMENT OFFICIALS THAT YOUR CLAIM FOR THE ADDITIONAL EXPENSES
INCURRED AND TO BE INCURRED IN HANDLING THE MAIL BAGS WITH THE
HEAT-SEALED PATCHES WOULD BE PAID.
IN REGARD TO YOUR ATTORNEY'S FIRST CONTENTION THAT THE DESCRIPTION OF
THE SCRAP CANVAS WAS NOT BASED ON THE BEST INFORMATION AVAILABLE TO THE
GOVERNMENT BECAUSE THE USE OF THE HEAT-SEAL PATCH WAS CONTEMPLATED AT
THE TIME BIDS WERE REQUESTED THE DIRECTOR, DIVISION OF SUPPLIES STATES
IN HIS REPORT THAT SUCH CONTENTION IS UNFOUNDED; THAT WHILE THE
HEAT-SEALED PATCH METHOD HAD BEEN SUGGESTED TO THE POST OFFICE
DEPARTMENT AT APPROXIMATELY THE SAME TIME THE INVITATION WAS ISSUED IT
WAS NOT CONTEMPLATED FOR USE AT THAT TIME; AND THAT THE USE OF THE
HEAT-SEALED PATCHES IN REPAIRING THE MAIL BAGS WAS INTRODUCED DURING THE
SECOND HALF OF THE CONTRACT PERIOD PRIMARILY ON AN EXPERIMENTAL BASIS
AND ONLY A VERY LOW PERCENTAGE OF THE BAGS WERE AFFECTED.
CONCERNING THE ALLEGED PROMISE BY POST OFFICE DEPARTMENT OFFICIALS TO
PAY YOU THE ADDITIONAL EXPENSES INCURRED IN HANDLING THE MAIL BAGS WITH
THE HEAT-SEALED PATCHES IF YOU CONTINUED PERFORMANCE OF THE CONTRACT,
THE DIRECTOR, DIVISION OF SUPPLIES REPORTS THAT NEITHER HE NOR THE CHIEF
OF PROCUREMENT HAD MADE ANY COMMITMENTS, EITHER IN WRITING OR ORALLY, TO
YOU WITH REGARD TO PAYMENT OF SUCH EXPENSES.
WE AGREE WITH YOUR ATTORNEY'S SECOND CONTENTION THAT NO OPPORTUNITY
FOR PRIOR INSPECTION OF ALL THE MATERIAL EXISTED FOR BIDDERS SINCE THE
MATERIAL TO BE PURCHASED UNDER THE CONTRACT WAS TO BE GENERATED OVER A
PERIOD OF ONE YEAR. WE DO NOT AGREE, HOWEVER, THAT THIS FACT RENDERS
INOPERATIVE THE PROVISIONS OF THE CONTRACT EXPRESSLY DISCLAIMING ANY
WARRANTIES AS TO THE DESCRIPTION OF THE MATERIAL OR ITS FITNESS FOR ANY
USE OR PURPOSE.
PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS, WHICH APPLIES
TO THE CONDITION OF THE PROPERTY, EXPRESSLY STATES:
"ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND "WHERE
IS," AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. * * * THE DESCRIPTION
IS BASED ON THE BEST AVAILABLE INFORMATION, BUT THE
GOVERNMENT MAKES NO GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESSED
OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR
DESCRIPTION OF ANY OF THE PROPERTY, OR ITS FITNESS FOR ANY USE OR
PURPOSE, AND NO CLAIM WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR
FOR RESCISSION OF THE SALE BASED UPON FAILURE OF THE PROPERTY TO
CORRESPOND WITH THE STANDARD EXPECTED; THIS IS NOT A SALE BY SAMPLE.'
ALSO, PARAGRAPH 12 OF THE SPECIAL CONDITIONS OF THE CONTRACT PROVIDES
AS FOLLOWS:
"12. QUALITY CONDITION AND QUANTITY NOT GUARANTEED--- THE MATERIAL
WILL BE UNSEGREGATED AND CONSIST MAINLY OF OLD CANVAS WITH AND WITHOUT
METAL PARTS ATTACHED; CANVAS CUTTINGS, PRACTICALLY FREE OF METAL;
LACING CORD IN SACK AND POUCH HEADS, WITH METAL PARTS ATTACHED; MAIL
BAGS AND CANVAS CUTTINGS CONTAINING PAINT, VARNISH, OIL, GREASE, MILDEW,
ETC. ; AND DYED MATERIAL, SUCH AS AIR MAIL BAGS. SHIPMENTS WILL NOT
CONTAIN OLD BURLAP, LACING CORD NOT ATTACHED TO SACK OR POUCH HEADS,
CANVAS BASKET INSERTS, OR BURNT MATERIAL. THE QUANTITIES GIVEN ARE
ESTIMATED ON THE BASIS OF PAST EXPERIENCE.'
YOU WERE SPECIFICALLY WARNED IN PARAGRAPH 12 OF THE SPECIAL
CONDITIONS THAT THE SCRAP CANVAS WOULD CONSIST OF, AMONG OTHER THINGS,
"MAIL BAGS AND CANVAS CUTTINGS CONTAINING PAINT, VARNISH, OIL, GREASE,
MILDEW, ETC. ; AND DYED MATERIAL, SUCH AS AIR MAIL BAGS.' AT THE TIME
IT ISSUED THE INVITATION, THE GOVERNMENT WAS UNAWARE OF THE SUBSTANCES
WHICH MIGHT CONTAMINATE THE MAIL BAGS IN THE FUTURE AND, THEREFORE, BY
THE USE OF THE CHARACTER "ETC., " PROSPECTIVE BIDDERS WERE PLACED ON
ACTUAL NOTICE OF THE FACT THAT THE MAIL BAGS COULD BE CONTAMINATED BY
SUBSTANCES OTHER THAN THOSE NAMED. UNDER THE PROVISIONS OF PARAGRAPH 12
OF THE SPECIAL CONDITIONS, THE GOVERNMENT ONLY GUARANTEED THAT
"SHIPMENTS WILL NOT CONTAIN OLD BURLAP, LACING CORD NOT ATTACHED TO SACK
OR POUCH HEADS, CANVAS BASKET INSERTS, OR BURNT MATERIAL.' IN THESE AND
SIMILAR CIRCUMSTANCES THE COURTS HAVE HELD THAT THE ELEMENT OF GOOD
FAITH IS ALL THAT IS REQUIRED OF THE VENDOR. SEE W. E. HEDGER COMPANY
V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED, 284 U.S. 676; AND
TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151, 156. THERE IS NO
EVIDENCE IN THE RECORD OF WILLFUL MISREPRESENTATION OR BAD FAITH ON THE
PART OF THE GOVERNMENT. ASSUMING THAT AT THE TIME THE INVITATION WAS
ISSUED, POST OFFICE DEPARTMENT OFFICIALS KNEW THAT HEAT-SEALED PATCHES
WOULD BE USED IN REQUIRING THE MAIL BAGS, THERE IS NO EVIDENCE
INDICATING THAT SUCH OFFICIALS KNEW THAT THE EXISTENCE OF SUCH PATCHES
ON BAGS WOULD SUBSTANTIALLY REDUCE THEIR VALUE. THE MATERIAL WAS SOLD
FOR WHAT THE GOVERNMENT THOUGHT IT TO BE AND AS STATED IN STANDARD
MAGNESIUM CORPORATION V. UNITED STATES, 241 F.2D 677, 679,"THERE WAS, BY
NO MEANS, A RIDICULOUS DISCREPANCY BETWEEN THE GOODS TENDERED AND THE
GOODS DESCRIBED; "THIS IS NOT A CASE OF ORDERING APPLES AND GETTING
ORANGES.' " UNDER THE CONDITIONS OF THE SALE OF THE GOVERNMENT WAS ONLY
OBLIGED TO ACT IN GOOD FAITH, AND THIS IT DID. SEE LIPSHITZ AND COHEN
V. UNITED STATES, 269 U.S. 90, 92; MAGQUIRE AND CO. V. UNITED STATES,
273 U.S. 67; AND LUMBRAZO V. WOODRUFF, 175 N.E. 525.
ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD, THERE APPEARS TO BE
NO LEGAL BASIS FOR AUTHORIZING PAYMENT OF THE ADDITIONAL EXPENSES
INCURRED BY YOU IN HANDLING THE MAIL BAGS WITH THE HEAT-SEALED PATCHES.
B-139590, JUL. 10, 1959
TO MRS. MIRIAM M. FURBERSHAW:
THIS REFERS TO YOUR UNDATED LETTER RECEIVED HERE ON APRIL 29, 1959,
REQUESTING REVIEW OF THE SETTLEMENT OF APRIL 22, 1959, WHICH DISALLOWED
YOUR CLAIM FOR THE PROCEEDS OF AN UNDESCRIBED SALARY CHECK ISSUED IN
1946. THE CLAIM WAS DISALLOWED BY OUR OFFICE BECAUSE THE REPORT
FURNISHED BY THE DEPARTMENT CONCERNED SHOWED THAT THE CHECK IN QUESTION
REPRESENTED AN OVERPAYMENT, AND WAS PROPERLY RETURNED BY YOU FOR
CANCELLATION. FURTHER, IT WAS REPORTED THAT YOU WERE CORRECTLY PAID
THROUGH THE DATE OF YOUR SEPARATION.
IN THE CORRESPONDENCE CONCERNING THIS MATTER YOU SAY THAT YOU WERE
ASSIGNED TO THE FOREIGN ECONOMIC ADMINISTRATION, JULY 1, 1943, AND
RESIGNED ON MAY 26, 1946, TO ACCEPT EMPLOYMENT WITH THE WAR DEPARTMENT.
YOU SAY THAT AT THE TERMINATION OF YOUR SERVICES WITH THE FOREIGN
ECONOMIC ADMINISTRATION YOU RECEIVED A SALARY CHECK REPRESENTING TWO
WEEKS PAY, WHICH YOU RETURNED, ACCOMPANIED BY A LETTER ADDRESSED TO THE
PERSONNEL PEOPLE IN CHARGE, STATING IN EFFECT, THAT THE SALARY CHECK
REPRESENTED AN OVERPAYMENT. YOU FURTHER SAY THAT THE CHECK WAS
ERRONEOUSLY RETURNED BY YOU SINCE IT REPRESENTED SALARY FOR THE FIRST
TWO WEEKS OF EMPLOYMENT WITH THE FOREIGN ECONOMIC
ADMINISTRATION BEGINNING WITH JULY 1, 1943, WHICH WAS HELD BACK DUE
TO A "PAY-LAG" SYSTEM THEN IN EFFECT. YOU ASSERT THAT THE PERSONNEL
OFFICE WHICH ACCEPTED THE RETURNED SALARY CHECK ERRED IN ACCEPTING THE
CHECK AND THAT IT SHOULD BE REISSUED TO YOU WITH INTEREST ACCRUING FROM
THE DATE THE CHECK WAS RETURNED AND ACCEPTED.
BY LETTER DATED MARCH 24, 1959, THE EMPLOYEE ACCOUNTS AND REPORTS
BRANCH, OFFICE OF FINANCE, DEPARTMENT OF STATE REPORTED TO US AS
FOLLOWS:
"YOUR LETTER DATED MARCH 6, 1959, * * * RELATING TO THE CLAIM OF
MIRIAM M. FURBERSHAW, * * * HAS BEEN RECEIVED.
"AN EXAMINATION OF THE FISCAL RECORDS OF THE CLAIMANT INDICATES THAT
HER SERVICES WITH THE FOREIGN ECONOMIC ADMINISTRATION WERE TERMINATED TO
ACCEPT EMPLOYMENT WITH THE WAR DEPARTMENT EFFECTIVE MAY 27, 1946. IN
THE PAY PERIOD MAY 19 THROUGH JUNE 1, 1946 A CHECK WAS ISSUED IN THE NET
AMOUNT OF $187.65 REPRESENTING 80 HOURS SALARY FOR THIS PERIOD AT $4520
PER ANNUM PLUS AN ADJUSTMENT BETWEEN $4520 AND $4300 FOR THE PERIOD
FEBRUARY 10 THROUGH MAY 18, 1946. SINCE THE CLAIMANT ENTERED ON DUTY
WITH THE WAR DEPARTMENT EFFECTIVE MAY 27, 1946, SHE WAS NOT ENTITLED TO
THE FULL PROCEEDS OF THIS CHECK, AND RECORDS SHOW THAT A REFUND OF 40
HOURS SALARY OVERPAYMENT FOR THE PERIOD MAY 27 THROUGH JUNE 1, 1946 IN
THE NET AMOUNT OF $66.97 WAS OBTAINED AND RECORDED ON SCHEDULE OF
COLLECTIONS NO. 124 IN THE SEPTEMBER 1946 ACCOUNTS OF E. J. BRENNA,
SYMBOL 2000. THIS TRANSACTION WOULD, THEREFORE, SETTLE CLAIMANT'S PAY
ACCOUNT WITH THE FOREIGN ECONOMIC ADMINISTRATION. FURTHER EXAMINATION
SHOWS THAT A CHECK IN THE NET AMOUNT OF $141.94 WAS ERRONEOUSLY ISSUED
IN THE PAY PERIOD JUNE 2 THROUGH 15, 1946, AND SUBSEQUENTLY CANCELLED.
SINCE MRS. FURBERSHAW WAS NOT ENTITLED TO THIS CHECK, IT WAS IN ORDER TO
CANCEL THE CHECK. NO DOUBT, THIS IS THE CHECK TO WHICH SHE REFERS IN
HER CLAIM. THEREFORE, IT WOULD APPEAR THAT MRS. FURBERSHAW WAS
CORRECTLY PAID BY THE DEPARTMENT (FOREIGN ECONOMIC ADMINISTRATION)
THROUGH THE DATE OF HER SEPARATION, AND HER CLAIM SHOULD BE DENIED.'
THE ABOVE-QUOTED REPORT DOES NOT REFER TO SALARY CHECK ISSUED IN
PAYMENT FOR SERVICES RENDERED BY YOU DURING 1943 AND IT MAY BE THAT THE
YEAR MENTIONED IN YOUR LETTER IS AN ERROR.
HOWEVER THAT MAY BE, IN THE FURTHERANCE OF A CLAIM COGNIZABLE BY OUR
OFFICE UNDER THE LAW, IT IS INCUMBENT UPON THE CLAIMANT TO ESTABLISH BY
PROPER EVIDENCE THAT THE CLAIM IS DUE AND PAYABLE. MOREOVER, WHEN THERE
IS A CONFLICT BETWEEN THE FACTS ALLEGED BY A CLAIMANT AND THE FACTS
ADMINISTRATIVELY REPORTED AS VERIFIED FROM THE OFFICIAL RECORD, OUR
CONCLUSIONS NECESSARILY MUST BE BASED UPON THE OFFICIAL WRITTEN RECORD,
WHICH RECORD IS PRESUMED TO BE CORRECT IN THE ABSENCE OF CLEAR EVIDENCE
TO THE CONTRARY. SEE B-136447, JULY 18, 1958 (COPY ENCLOSED); ALSO 37
COMP. GEN. 797, 798. THE INFORMATION YOU HAVE FURNISHED US IS NOT
SUFFICIENT TO JUSTIFY A DETERMINATION BY OUR OFFICE THAT THE
ADMINISTRATIVE REPORT FURNISHED IS INCORRECT OR THAT YOUR CLAIM IS
ALLOWABLE.
THEREFORE, AND AS YOUR LETTER RECEIVED APRIL 29, 1959, ADDS NO FACT
OR EVIDENCE OF A CIRCUMSTANCE NOT ALREADY CONSIDERED IN OUR SETTLEMENT
OF APRIL 22, 1959, THE SETTLEMENT IS SUSTAINED.
B-139613, JUL. 10, 1959
TO THE PIEDMONT AND NORTHERN RAILWAY COMPANY:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 10, 1959, FILE RD-639, AND
PRIOR CORRESPONDENCE, REGARDING REVIEW OF THE SETTLEMENTS (PER
TK-666122, TK-665902 AND TK-665921) WHICH DISALLOWED YOUR CLAIMS ON
BILLS NOS. 130, 132 AND 134 FOR THE AMOUNTS OF $264.03, $93.88 AND
$281.64. THESE AMOUNTS ARE IN ADDITION TO THOSE PREVIOUSLY CLAIMED BY
AND PAID TO YOU FOR THE TRANSPORTATION FROM SANTA CLARA AND SANTA
MONICA, CALIFORNIA, TO CHARLOTTE, NORTH CAROLINA, OF CERTAIN CONTAINERS
TO BE USED IN CONNECTION WITH THE SHIPMENT OF MISSILES, XM-326 AND
M-326.
THE SHIPMENTS WERE TRANSPORTED IN MARCH AND MAY 1957. THE CHARGES
ORIGINALLY CLAIMED AND PAID TO YOU FOR THIS TRANSPORTATION WAS COMPUTED
ON THE BASIS OF A COMMODITY RATE OF $4.16 PER 100 POUNDS WHICH APPLIED
ON "CONTAINERS, SHEET IRON OR STEEL, SET UP * * * BARRELS, DRUMS OR
KEGS, N.O.I.B.N., SHIPPING * * * IN STRAIGHT OR MIXED CARLOADS," AND WAS
PUBLISHED IN ITEM 4233-A OF TRANS-CONTINENTAL FREIGHT BUREAU FREIGHT
TARIFF NO. 2-7, I.C.C. 1574. THE ABBREVIATION O.I.B.N.' IS DEFINED IN
ITEM 9600 OF THE TARIFF AS MEANING "THAT THE DESCRIPTION OF WHICH IT IS
A PART APPLIES ON ARTICLES INCLUDED IN THE SAME "N.O.I.B.N.' DESCRIPTION
IN THE WESTERN CLASSIFICATION.'
IN YOUR REQUEST FOR REVIEW YOU URGE THAT THOSE CONTAINERS SHOULD BE
RATED UNDER THE RULE (17) OF ANALOGY, APPLYING THE RATING IN EITHER
ITEMS 13785 AND 13790 OR IN ITEMS 41569 AND 41705 OF THE UNIFORM FREIGHT
CLASSIFICATION NO. 3. THESE ITEMS ARE, IN PERTINENT PART, AS FOLLOWS:
TABLE
ITEM ARTICLE RATING
13785 "CONTAINERS, SHEET IRON OR STEEL, S.U. * * *" 13790 "BAR
SHIPPING * * *" 40
* * * * * * *
41560 "TANKS:
41705 "IRON OR STEEL, NOIBN, PLATE OR SHEET, SU:
1/4 INCH OR THINNER, BUT NOT THINNER THAN
16 GAUGE * * * :
NOT NESTED, LOOSE OR IN PACKAGES 40"
THUS, THE ONLY QUESTION FOR DETERMINATION IS WHETHER THESE CONTAINERS
WERE, IN FACT, DRUMS N.O.I.B.N., SHIPPING; OR WHETHER THEY WERE ONLY
ANALOGOUS TO AN ARTICLE LISTED IN ITEMS 13785 AND 13790 WHICH COVER
CONTAINERS, SHEET IRON OR STEEL, SET UP--- "BARRELS, DRUMS OR KEGS,
NOIBN, SHIPPING; " OR TO AN ARTICLE LISTED IN ITEM 41705 WHICH COVERS
TANKS,"IRON OR STEEL, NOIBN, PLATE OR SHEET, S.U;,--- "1/4 INCH OR
THINNER, BUT NOT THINNER THAN 16 GUAGE"--- "NOT NESTED, LOOSE OR IN
PACKAGES.' WE HAVE BEEN UNABLE TO FIND A REPORT OF ANY CASE IN WHICH THE
INTERSTATE COMMERCE COMMISSION HAS DEFINED THE GENERIC TERM "DRUM.' IN
MERRIAM-WEBSTER'S NEW INTERNATIONAL DICTIONARY--- SECOND EDITION, THE
WORDS CONTAINER, DRUM AND TANK ARE DEFINED IN PERTINENT PART, AS
FOLLOWS:
CONTAINER
"A RECEPTACLE, AS A BOX, CARTON, OR CRATE, USED IN COMMERCE, FOR THE
PACKING AND SHIPMENT OF ARTICLES; " ALSO, AS "A LARGE WEATHERPROOF BOX
OR TANK, USUALLY OF METAL, DESIGNED FOR THE SHIPMENT OF FREIGHT IN BULK
BY MOTOR TRUCK OR RAILROAD FREIGHT CAR.'
DRUM
"A METAL BARREL FOR LIQUID, AS OIL; " ALSO, AN "A CYLINDRICAL BOX,
TUB, CASE, OR THE LIKE, AS FOR PACKING OR STORING FIGS, COD, SPIRITS,
SHOT, FOR HOLDING A COILED SPRING, ETC.'
TANK
"A LARGE BASIN, CISTERN, OR OTHER ARTIFICIAL RECEPTACLE FOR LIQUIDS,
AS A SWIMMING TANK; A GASOLINE TANK.'
IN THE CASE OF UNITED STATES V. ONE ELECTRONIC POINTMAKER, 149
F.SUPP. 427-429, A DRUM IS DESCRIBED AS "A CYLINDRICAL BOX, TUBE, CASE
OR THE LIKE.' NOWHERE HAVE BEEN ABLE TO FIND A RULE DEFINING THE
DIMENSIONS OF A DRUM, OR ITS STANDARD GALLONAGE CAPACITY, EXCEPT AS TO
GASOLINE AND OIL DRUMS OF 50-55 GALLONS. THESE CONTAINERS FOR MISSILES,
NOT BEING A "RECEPTACLE FOR LIQUID," APPARENTLY CANNOT DESCRIBED AS A
TANK. THE DEFINITION OF A DRUM AS A CYLINDRICAL BOX * * * OR THE LIKE
FOR PACKING OR STORING OR FOR HOLDING A COILED SPRING, ETC., INDICATES
THAT DRUMS MAY BE OF MANY SIZES, INCLUDING THOSE CONTAINERS UNDER
CONSIDERATION HERE. THERE IS NOTHING OF RECORD HERE WHICH WOULD
INDICATE THAT THE COMMODITY DESCRIPTION ON CONTAINERS, SHEET IRON OR
STEEL, S.U.--- "BARRELS, DRUMS OR KEGS, NOIBN, SHIPPING," IS NOT
APPLICABLE ON THESE IRON OR STEEL SHIPPING CONTAINERS. THE MILITARY
TRAFFIC MANAGEMENT AGENCY, U.S. ARMY, HAS ADVISED THIS OFFICE,
INFORMALLY, THAT THESE SHIPMENTS OF SHIPPING CONTAINERS, MISSILE, M-326,
ARE PROPERLY FOR RATING AS CONTAINERS, SHEET IRON OR STEEL, SU., DRUMS,
NOIBN, SHIPPING.
ACCORDINGLY, UPON THE PRESENT RECORD, THE DISALLOWANCE OF YOUR CLAIMS
IS SUSTAINED.
B-139710, JUL. 10, 1959
TO MR. LYLE E. KALLSTROM:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 31, 1959, TO MR. FRED E.
WAHLERS, FORWARDED TO THIS OFFICE BY A LETTER OF APRIL 29, 1959, FROM
MR. JOHN J. CORCORAN, DIRECTOR, REHABILITATION COMMISSION, THE AMERICAN
LEGION. YOUR LETTER OF MARCH 31, 1959, CONCERNS ADDITIONAL SUMS WHICH
YOU BELIEVE ARE DUE TO YOUR MOTHER, MRS. LEAH KALLSTROM, AS SURVIVING
PARENT OF YOUR DECEASED BROTHER, SEAMAN, FIRST CLASS, ALLEN E.
KALLSTROM, 306 33 03, UNITED STATES NAVAL RESERVE AND IS IN EFFECT A
REQUEST FOR REVIEW OF OUR SETTLEMENTS OF NOVEMBER 18, 1946, AND DECEMBER
11, 1947.
YOU STATE THAT YOU BELIEVE THAT NOT ALL OF THE PAY DUE THE DECEDENT'S
ACCOUNT WAS PAID TO THE PARENTS IN COMPLIANCE WITH THE MISSING PERSONS
ACT OF 1942, AS AMENDED, 50 U.S.C. APP. 1001, ET SEQ. AND THAT YOU
BELIEVE THAT THE DIFFERENCE BETWEEN THE SUMS PAID TO THE SURVIVING
PARENTS UNDER SETTLEMENT CERTIFICATES NO. 1445267 ($1,385.92) AND NO.
1617969 ($76.80) AND THE SUM OF $2,025.00, THE TOTAL SUM TO WHICH YOU
BELIEVE THE DECEDENT WAS ENTITLED FOR THE PERIOD JULY 24, 1945, TO JULY
25, 1946, WHILE CARRIED AS MISSING IN ACTION, IS DUE TO THE FAILURE TO
INCLUDE AVIATION PAY IN THE COMPUTATION. YOU HAVE THEREFORE CLAIMED THE
SUM OF $562.28, MINUS ANY PROPER DEDUCTION, AS DUE TO THE DECEDENT'S
MOTHER, MRS. LEAH KALLSTROM.
THE OFFICIAL RECORDS SHOW THAT SEAMAN ALLEN EIDE KALLSTROM WAS
OFFICIALLY REPORTED TO BE MISSING IN ACTION AS OF JULY 24, 1945, AS THE
RESULT OF COMBAT ACTION. FOR PAY AND ALLOWANCES PURPOSES, THE
DEPARTMENT OF THE NAVY DETERMINED THAT HIS DEATH IS PRESUMED TO HAVE
OCCURRED ON JULY 25, 1946, AND THE SURVIVING PARENTS, MR. ERIC W.
KALLSTROM AND MRS. LEAH KALLSTROM, WERE PAID EQUAL PORTIONS OF THE
AMOUNT OF $1,385.92 SHOWN DUE ON ACCOUNT FORWARDED TO THIS OFFICE BY THE
DEPARTMENT OF THE NAVY UNDER SECTION 9 OF THE MISSING PERSONS ACT OF
1942, AS AMENDED, 50 U.S.C. APP. 1009. SUBSEQUENTLY THE PARENTS WERE
ALLOWED THE ADDITIONAL SUM OF $76.80 BY OUR SETTLEMENT OF DECEMBER 26,
1947, SUCH ACTION HAVING RESULTED FROM A DETERMINATION BY THE VETERANS
ADMINISTRATION THAT THE DATE OF THE ENLISTED MAN'S DEATH, FOR INSURANCE
PURPOSES, WAS JULY 24, 1945, AND, HENCE, THERE WAS NOT CHARGEABLE
AGAINST HIS ACCOUNT INSURANCE ALLOTMENT DEDUCTIONS AT THE MONTHLY RATE
OF $6.40 FOR THE MONTHS OF JULY 1945 THROUGH JUNE 1946. THE SETTLEMENTS
MADE BY THIS OFFICE WERE BASED UPON THE ACCOUNT FORWARDED TO US BY THE
DEPARTMENT OF THE NAVY AND THE AMOUNT SO CERTIFIED IS CONCLUSIVE UNDER
THE PROVISIONS OF SECTION 9 OF THE MISSING PERSONS ACT OF 1942, AS
AMENDED, WHICH IS, IN PART, AS FOLLOWS:
"* * * DETERMINATIONS ARE AUTHORIZED TO BE MADE BY THE HEAD OF THE
DEPARTMENT CONCERNED, OR BY SUCH SUBORDINATE AS HE MAY DESIGNATE, OF
ENTITLEMENT OF ANY PERSON, UNDER PROVISION OF THE ACT, TO PAY AND
ALLOWANCES, INCLUDING CREDITS AND CHARGES IN HIS ACCOUNT, AND ALL SUCH
DETERMINATIONS SHALL BE CONCLUSIVE * * *.'
WHILE THE ADMINISTRATIVE DETERMINATION OF CREDITS AND CHARGES IN THE
DECEDENT'S ACCOUNT AT THE PRESUMPTIVE DATE OF DEATH IS CONCLUSIVE, THE
STATEMENT OF HIS ACCOUNT DOES NOT SHOW IN DETAIL HOW THE AMOUNT DUE WAS
COMPUTED. THE ACCOUNT FURNISHED US SHOWS THAT A BALANCE DUE OF
$1,233.29 WAS CARRIED FORWARD TO THE MONTH OF JULY 1946 AND FOR THE
PERIOD JULY 1 TO 25, 1946, HE WAS CREDITED WITH BASE AND LONGEVITY PAY
AT THE RATE OF $94.50 A MONTH, SEA AND FOREIGN SERVICE PAY AT THE
MONTHLY RATE OF $18, AND AVIATION PAY AT THE MONTHLY RATE OF $56.25.
ALSO, HE WAS CREDITED WITH A QUARTERLY CLOTHING ALLOWANCE AS OF JULY 1,
1946, IN THE AMOUNT OF $12. THE FOREGOING PAY RATES WERE AUTHORIZED
EFFECTIVE JULY 1, 1946, BY THE ACT OF JUNE 29, 1946, 60 STAT. 343.
EFFECTIVE JULY 24, 1945, THE DATE THE ENLISTED MAN WAS REPORTED TO BE
MISSING IN ACTION, A SEAMAN, FIRST CLASS, WITH LESS THAN THREE YEARS OF
SERVICE, WHO WAS SERVING ON FOREIGN DUTY WAS ENTITLED TO BASE AND
FOREIGN SERVICE PAY OF $79.20 A MONTH. A 50 PERCENT INCREASE OR $39.60
A MONTH ADDITIONAL PAY WAS AUTHORIZED FOR AVIATION DUTY.
THE RECORDS INDICATE THAT THE DECEDENT COMPLETED THREE YEARS OF
SERVICE FOR LONGEVITY PAY PURPOSES ON MARCH 29, 1946. THE BASE AND
LONGEVITY PAY RATE FOR A SEAMAN, FIRST CLASS, WITH OVER THREE YEARS OF
SERVICE, INCLUDING FOREIGN SERVICE PAY EFFECTIVE MARCH 30, 1946, WAS
$82.50 A MONTH AND AN ADDITIONAL 50 PERCENT OR $41.25 WAS AUTHORIZED FOR
AVIATION DUTY. THUS, CONTRARY TO YOUR CONTENTIONS, IT WILL BE SEEN THAT
PAY AT THE RATES ON WHICH THE SIX MONTHS' DEATH GRATUITY WAS COMPUTED,
WAS NOT AUTHORIZED TO BE CREDITED TO THE DECEDENT'S ACCOUNT FOR THE
ENTIRE PERIOD HE WAS CARRIED IN A MISSING IN ACTION STATUS. ALSO, THE
RECORD SHOWS THAT THERE WAS CHARGEABLE AGAINST THE DECEDENT'S ACCRUED
PAY A MONTHLY ALLOTMENT OF $35 WHICH WAS PAID TO HIS MOTHER THROUGH JUNE
1946.
ANY FURTHER INQUIRY CONCERNING THE BASIS ON WHICH THE DECEDENT'S
FINAL ACCOUNT WAS COMPUTED SHOULD BE ADDRESSED TO THE DEPARTMENT OF THE
NAVY.
B-139732, JUL. 10, 1959
TO ENSIGN P. A. HARDACRE, S.C. :
BY SECOND ENDORSEMENT DATED MAY 25, 1959, THE COMPTROLLER OF THE NAVY
FORWARDED YOUR LETTER OF MARCH 31, 1958, WITH ENCLOSURES, REQUESTING A
DECISION AS TO WHETHER YOU ARE AUTHORIZED TO CREDIT THE PAY ACCOUNT OF
EUGENE C. PERCIVAL, USN, AEC, 575 28 93, WITH TEMPORARY LODGING
ALLOWANCE FOR THE PERIOD FEBRUARY 15 TO MAY 5, 1958, IN THE
CIRCUMSTANCES SHOWN. THE SUBMISSION OF YOUR REQUEST WAS ASSIGNED
PDTATAC CONTROL NUMBER 59-25.
THE RECORD INDICATES THAT ON NOVEMBER 22, 1957, PERCIVAL DEPARTED
FROM THE UNITED STATES NAVAL AIR STATION, JACKSONVILLE, FLORIDA, ON
PERMANENT CHANGE OF STATION UNDER STANDARD TRANSFER ORDER NO.
SC-280-57, DIRECTING TEMPORARY DUTY UNDER INSTRUCTION EN ROUTE AT
BURBANK, CALIFORNIA. CONCURRENT TRAVEL OF DEPENDENTS WAS AUTHORIZED TO
HIS NEW DUTY STATION (ABN BARRIER SERVICE SQUADRON TWO) AT BARBERS
POINT, TERRITORY OF HAWAII. ON FEBRUARY 14, 1958, HE AND HIS DEPENDENTS
ARRIVED AT THE RECEIVING STATION, PEARL HARBOR, TERRITORY OF HAWAII,
AFTER COMPLETION OF HIS TRAINING AT BURBANK. HIS ORDERS WERE MODIFIED
ON THAT DATE TO PROVIDE THAT HIS NEW PERMANENT DUTY ASSIGNMENT WOULD BE
ABN BARRIER SERVICE SQUADRON TWO AT MIDWAY ISLAND. DUE TO THE CURRENT
WAITING PERIOD FOR HOUSING AT MIDWAY ISLAND, HIS DEPENDENTS WERE NOT
AUTHORIZED CONCURRENT TRAVEL TO THAT POINT. IT IS REPORTED THAT HE
OBTAINED HOTEL ACCOMMODATIONS FOR HIMSELF, HIS WIFE AND FIVE CHILDREN ON
FEBRUARY 14, 1958, AT THE ISLANDER HOTEL, HONOLULU, TERRITORY OF HAWAII,
WHICH HE OCCUPIED WITH HIS DEPENDENTS UNTIL HE PROCEEDED TO MIDWAY
ISLAND ON FEBRUARY 24, 1958. THE DEPENDENTS CONTINUED TO OCCUPY THEIR
HOTEL QUARTERS UNTIL GOVERNMENT QUARTERS WERE AVAILABLE AT MIDWAY ISLAND
ON MAY 5, 1958. CERTIFICATES SIGNED BY COMMANDER, R. N. SMITH, USN,
COMMANDING OFFICER, ATTEST THAT NO GOVERNMENT QUARTERS WERE AVAILABLE
FOR THE PERIOD FEBRUARY 14 TO MAY 5, 1958, AND THAT WHILE A GOVERNMENT
MESS WAS AVAILABLE TO THE MEMBER THROUGHOUT THE PERIOD, IT WAS NOT
AVAILABLE TO HIS DEPENDENTS. A MILITARY PAY ORDER SIGNED BY THE SAME
OFFICER AUTHORIZED THE DISBURSING OFFICER TO ENTER CREDIT FOR TEMPORARY
LODGING ALLOWANCE ON PERCIVAL'S PAY ACCOUNT FOR THE ENTIRE PERIOD AT THE
RATE FOR THE AREA INDICATED AND THE NUMBER OF PERSONS LISTED IN THE
MEMBER'S CERTIFICATE CLAIMING TEMPORARY LODGING ALLOWANCE.
THE PAYMENT OF STATION ALLOWANCES, INCLUDING TEMPORARY LODGING
ALLOWANCE IS AUTHORIZED BY SECTION 303 (B) OF THE CAREER COMPENSATION
ACT OF 1949, 37 U.S.C. 253, IN ACCORDANCE WITH APPROPRIATE REGULATIONS.
PARAGRAPH 4305-5 OF THE JOINT TRAVEL REGULATIONS APPEARS TO CONTEMPLATE
PAYMENT OF STATION ALLOWANCES, AS PRESCRIBED IN PARAGRAPHS 4301 AND 4303
OF SUCH REGULATIONS, TO A MEMBER ON DUTY AT AN OVERSEAS STATION, IF HIS
DEPENDENTS ARE DIVERTED TO ANOTHER PLACE WHILE EN ROUTE TO THAT STATION
BECAUSE THE DESTINATION HAS BECOME A RESTRICTED AREA, AT THE RATE
APPLICABLE FOR THE PLACE TO WHICH DIVERTED.
IT APPEARS THAT PERCIVAL'S NEW STATION WAS CHANGED FROM BARBERS
POINT, TERRITORY OF HAWAII, TO MIDWAY ISLAND BY THE ENDORSEMENT TO HIS
ORDERS AT THE TIME OF HIS ARRIVAL AT THE RECEIVING STATIONS, PEARL
HARBOR, AND PRIOR TO HIS ARRIVAL AT BARBERS POINT. IT ALSO APPEARS THAT
MIDWAY ISLAND WAS A "RESTRICTED AREA" WITHIN THE CONTEMPLATION OF THE
CITED REGULATIONS, SINCE CONCURRENT TRAVEL OF DEPENDENTS TO MIDWAY
ISLAND WAS NOT AUTHORIZED. PARAGRAPH 4300-5 OF THE JOINT TRAVEL
REGULATIONS, CHANGE 60, THEN IN EFFECT, PROVIDED AS FOLLOWS:
"5. RESTRICTED AREA. A RESTRICTED AREA, AS USED IN THIS PART, IS
DEFINED AS ANY AREA INTO WHICH THE ENTRY OF DEPENDENTS HAS BEEN
PROHIBITED, TEMPORARILY OR PERMANENTLY, BY ORDER OF COMPETENT
AUTHORITY.'
SINCE PERCIVAL AND HIS DEPENDENTS WERE STILL EN ROUTE TO HIS NEW
STATION AT BARBERS POINT AT THE TIME THAT STATION WAS CHANGED TO MIDWAY
ISLAND, IT APPEARS PROPER TO REGARD THEM AS BEING IN A TRAVEL STATUS EN
ROUTE TO THE LATTER PLACE AFTER THAT CHANGE WAS MADE. SINCE TRAVEL TO
THAT PLACE WAS BARRED AT THAT TIME, HIS DEPENDENT'S STAY AT HONOLULU MAY
BE CONSIDERED AS A DIVERSION INCIDENT TO THAT MOVEMENT. WHILE IT
APPEARS THAT A MEMBER ACTUALLY MUST REPORT FOR DUTY AT A PERMANENT DUTY
STATION OVERSEAS BEFORE BECOMING ENTITLED TO TEMPORARY LODGING
ALLOWANCES (SEE 38 COMP. GEN. 583), THIS REQUIREMENT WAS MET WHEN
PERCIVAL PROCEEDED TO MIDWAY ISLAND ON FEBRUARY 24, 1958. HE REMAINED
THERE UNTIL JOINED BY HIS DEPENDENTS.
ALTHOUGH PARAGRAPH 4305-5 INDICATES THAT THE TEMPORARY LODGING
ALLOWANCE IS PAYABLE FROM THE DAY OF ARRIVAL AT THE PLACE TO WHICH
DIVERTED, TO THE DAY PRIOR TO DEPARTURE THEREFROM, THE ALLOWANCES
PAYABLE ARE THOSE PRESCRIBED IN PARAGRAPHS 4301 AND 4303. SUBPARAGRAPH
2B OF THE LATTER LIMITS THE PAYMENT OF TEMPORARY LODGING ALLOWANCES TO A
PERIOD OF 60 DAYS.
ACCORDINGLY, PAYMENT OF THE ALLOWANCE CLAIMED IS AUTHORIZED UNDER THE
MILITARY PAY ORDER, RETURNED HEREWITH, FOR NO MORE THAN 60 DAYS OF THE
PERIOD FEBRUARY 24 THROUGH MAY 5, 1958, IF OTHERWISE CORRECT.
B-139793, JUL. 10, 1959
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO LETTER DATED JUNE 1, 1959, FROM THE DEPUTY
COMPTROLLER OF THE NAVY, TRANSMITTING THE MEMORANDUM OF SENATOR HENRY M.
JACKSON DATED MARCH 6, 1959, AND ENCLOSURE, RELATIVE TO DEDUCTIONS FROM
THE PAY OF ALPHONSES K. DELAGRANGE, UTC, USN, IN THE AMOUNT OF $69.39,
FOR MILEAGE PAID FROM TREASURE ISLAND, CALIFORNIA, TO SEATTLE,
WASHINGTON, AND PER DIEM IN MAY AND JUNE 1956.
OUR DEFENSE ACCOUNTING AND AUDITING DIVISION TOOK EXCEPTION TO A
PAYMENT ON VOUCHER NO. 208, JULY 1956 ACCOUNT OF B. K. ARADT, SYMBOL NO.
540680, ON THE GROUND THAT THE PAYMENT WAS FOR TRAVEL PERFORMED IN
CONNECTION WITH THE MEMBER'S TRANSFER BETWEEN TWO DUTY STATIONS OUTSIDE
THE CONTINENTAL UNITED STATES UNDER ORDERS WHICH DIRECTED TRAVEL TO THE
CONTINENTAL UNITED STATES FOR LEAVE PURPOSES. THE EXCEPTION WAS CLEARED
ON THE BASIS OF A REPLY REPORTING CHECKAGE OF THE FULL AMOUNT OF THE
ERRONEOUS PAYMENT.
THE PAY RECORDS SHOW THAT DELAGRANGE WAS DETACHED FROM DUTY AT THE
NAVAL AIR STATION, ATSUGI, JAPAN, ON MAY 10, 1956, AND ARRIVED IN THE
CONTINENTAL UNITED STATES ON MAY 17, 1956; THAT HE TOOK LEAVE FROM MAY
19 TO JUNE 16, 1956, AND REPORTED AT THE NAVAL RECEIVING STATION,
SEATTLE, WASHINGTON, ON JUNE 18, 1956; THAT HE DEPARTED SEATTLE ON JUNE
22, 1956, AND REPORTED FOR DUTY WITH MOBILE CONSTRUCTION BATTALION NO. 5
AT ADAK, ALASKA, ON JUNE 24, 1956.
IN OUR DECISIONS INTERPRETING THE LAW AND REGULATIONS APPLICABLE IN
CASES SIMILAR TO THE ONE HERE INVOLVED, WE CONSISTENTLY HAVE RULED THAT
TRAVEL WHILE ON LEAVE INCIDENT TO A PERMANENT CHANGE OF STATION, TO THE
EXTENT THAT SUCH TRAVEL EXCEEDS THE DISTANCE FROM THE OLD TO THE NEW
STATION, IS NOT TRAVEL ON OFFICIAL BUSINESS. THE INSTANT CASE IS ONE OF
APPROXIMATELY 250 WHICH REQUIRED IDENTICAL AUDIT ACTION ON OVERPAID
ALLOWANCES FOR LEAVE TRAVEL PERFORMED BETWEEN JULY 1, 1955, AND JUNE 30,
1958, AND FOR WHICH CHECKAGE OR COLLECTION HAS BEEN EFFECTED.
PUBLIC LAW 86-25, APPROVED MAY 13, 1959, PROVIDES AS FOLLOWS:
"THAT THE ISSUANCE OF TRANSPORTATION REQUESTS (INCLUDING THE COST OF
TRANSPORTING EXCESS BAGGAGE) AND PAYMENTS MADE FOR MILEAGE OR PER DIEM,
OR BOTH, TO MEMBERS OF THE NAVAL SERVICE FOR TRAVEL PERFORMED BY THEM BY
COMMERCIAL CARRIERS AFTER JUNE 30, 1955, AND BEFORE JULY 1, 1958, UNDER
ORDERS THAT TRANSFERRED THEM BETWEEN DUTY STATIONS (INCLUDING VESSELS)
OUTSIDE THE UNITED STATES AND AUTHORIZED THEM LEAVE EN ROUTE IN THE
UNITED STATES ARE VALIDATED. ANY MEMBER OR FORMER MEMBER OF THE NAVAL
SERVICE WHO HAS WHOLLY OR PARTLY REIMBURSED THE UNITED STATES FOR THE
VALUE OF TRANSPORTATION REQUESTS SO ISSUED TO HIM OR FOR PAYMENTS SO
MADE TO HIM IS ENTITLED TO HAVE REFUNDED THE AMOUNT HE HAS SO REIMBURSED
THE UNITED STATES.
"SEC. 2. CURRENT APPROPRIATIONS AVAILABLE TO THE DEPARTMENT OF THE
NAVY FOR THE PAY AND ALLOWANCES OF MEMBERS OF THE NAVAL SERVICE ARE
AVAILABLE FOR REFUNDS UNDER THIS ACT.'
AUTHORITY TO MAKE REFUND TO THE MEMBERS CONCERNED, REQUESTED BY THE
NAVY FINANCE CENTER PURSUANT TO PUBLIC LAW 86-25, HAS BEEN GRANTED.
ALTHOUGH IT APPEARS THAT THE PRIMARY PURPOSE OF PUBLIC LAW 86-25 WAS TO
RELIEVE LIABILITY FOR THE COST OF TRANSPORTATION REQUESTS ERRONEOUSLY
FURNISHED FOR LEAVE TRAVEL, ITS PROVISIONS APPEAR BROAD ENOUGH TO
INCLUDE THE INSTANT AND SIMILAR CASES. ACCORDINGLY, RECREDIT OF THE
AMOUNT DEDUCTED IN DELAGRANGE'S CASE AND IN SIMILAR CASES ALSO MAY BE
EFFECTED BY THE NAVY FINANCE CENTER, IF OTHERWISE PROPER.
SENATOR JACKSON IS BEING ADVISED BY LETTER OF TODAY OF OUR ACTION IN
THIS MATTER.
B-139796, JUL. 10, 1959
TO MR. GLEN W. HOAR, AUTHORIZED CERTIFYING OFFICER, FOOD AND DRUG
ADMINISTRATION:
REFERENCE IS MADE TO YOUR LETTER OF MAY 28, 1959, REQUESTING AN
ADVANCE DECISION CONCERNING WHETHER GEORGE L. DICKENS, A FORMER EMPLOYEE
OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE REMOVED FOR CAUSE,
MAY BE CONSIDERED INDEBTED TO THE UNITED STATES FOR GOVERNMENT MONEYS HE
IS BELIEVED, ON THE BASIS OF CIRCUMSTANTIAL EVIDENCE, TO HAVE STOLEN.
YOUR DOUBT IN THE MATTER CONCERNS THE DISPOSITION TO BE MADE OF THE
FINAL SALARY ACCRUING TO MR. DICKENS AT THE TIME OF HIS REMOVAL AND
STEMS FROM THE ACT OF FEBRUARY 24, 1931, 5 U.S.C. 46A, WHICH PROVIDES:
"FROM AND AFTER FEBRUARY 24, 1931, THERE SHALL BE NO WITHHOLDING OR
CONFISCATION OF THE EARNED PAY, SALARY, OR EMOLUMENT OF ANY CIVIL
EMPLOYEE OF THE UNITED STATES REMOVED FOR CAUSE: PROVIDED, THAT IF AT
THE TIME OF SUCH REMOVAL ANY SUCH EMPLOYEE IS INDEBTED TO THE UNITED
STATES ANY SALARY, PAY, OR EMOLUMENT ACCRUING TO SUCH EMPLOYEE COMING
WITHIN THE PROVISIONS OF THIS SECTION SHALL BE APPLIED IN WHOLE OR IN
PART TO THE SATISFACTION OF ANY CLAIM OR INDEBTEDNESS DUE TO THE UNITED
STATES.'
SPECIFICALLY, OUR DECISION IS REQUESTED AS TO WHETHER THE PAYROLL
COVERING UNPAID SALARY AND UNAPPLIED BOND DEDUCTIONS FOR PAYMENT TO MR.
DICKENS MAY BE CERTIFIED OR WHETHER THESE AMOUNTS SHOULD BE APPLIED IN
SATISFACTION OF THE SHORTAGE AND CREDITED TO THE APPROPRIATION TO WHICH
THE STOLEN MONEYS WOULD OTHERWISE HAVE BEEN DEPOSITED.
ON FEBRUARY 17, 1959, MR. DICKENS, A MESSENGER, WAS GIVEN A SUSPENDED
SENTENCE OF 180 DAYS AND PLACED ON PROBATION FOR ONE YEAR AFTER PLEADING
GUILTY TO THE THEFT OF $55 IN GOVERNMENT FUNDS FROM THE CENTRAL MAIL
ROOM OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE. THIS MONEY
WAS RECOVERED BY THE GOVERNMENT FROM MR. DICKENS. THE THEFT OCCURRED ON
JANUARY 15, 1959, AND MR. DICKENS WAS REMOVED FOR CAUSE SHORTLY
THEREAFTER.
IT APPEARS THAT ON TWO PREVIOUS OCCASIONS, A TOTAL OF $486 IN CASH---
$198 ON NOVEMBER 10, 1958, AND $288 ON DECEMBER 2, 1958--- WAS SENT TO
THE CENTRAL MAIL ROOM OF THE DEPARTMENT FOR TRANSMITTAL TO THE TREASURY
AND THAT IN EACH INSTANCE, THE MONEYS DID NOT REACH THE TREASURY. THESE
LOSSES WERE REPORTED TO THE FEDERAL BUREAU OF INVESTIGATION WHICH
INVESTIGATED THE MATTER. YOU STATE THAT WHILE MR. DICKENS HAS DENIED
THAT HE STOLE THE MISSING $486, YOUR AGENCY IS CONVINCED, ON THE BASIS
OF THE FOLLOWING CIRCUMSTANTIAL EVIDENCE DEVELOPED, THAT HE WAS
RESPONSIBLE FOR THE SHORTAGE.
WHEN HE WAS APPREHENDED ON JANUARY 15, 1959, FOR THE THEFT OF THE
$55, MR. DICKENS HAD IN HIS WALLET A SLIP OF PAPER UPON WHICH WAS
WRITTEN THE FIGURE "198," THE EXACT AMOUNT OF THE NOVEMBER 10, SHORTAGE.
SEVERAL MONEY ORDER STUBS, DATED DECEMBER 3, 1958, SHOWING PAYMENT FOR
BILLS, WERE ALSO IN HIS POCKET. DECEMBER 3, 1958, THE DAY FOLLOWING THE
SECOND SHORTAGE, WAS IN A NON-PAYDAY WEEK AND ACCORDING TO A NEWSPAPER
ACCOUNT OF THE JANUARY 15, THEFT, MR. DICKENS GAVE "PRESSING DEBTS" AS
HIS REASON FOR TAKING THE $55. FURTHER, ALTHOUGH MR. DICKENS DENIED
ANY THEFT FROM THE MAILS OTHER THAN THE $55 THEFT, HE ALSO HAD IN HIS
POCKET AT THE TIME OF HIS APPREHENSION ON JANUARY 15, A PARTIALLY TORN
ENVELOPE CONTAINING A LETTER FROM AN EMPLOYEE TO HER GRANDMOTHER. THIS
EMPLOYEE HAD FROM TIME TO TIME MAILED SMALL AMOUNTS OF CASH. FINALLY,
DESPITE THE FACT THAT THE MAIL ROOM WAS UNDER SURVEILLANCE BY AN FBI
AGENT ON JANUARY 15, 1959, MR. DICKENS WAS SO SKILLFUL IN ABSTRACTING
THE ENVELOPE CONTAINING THE $55 THAT THE AGENT STATED HE WAS BARELY ABLE
TO OBSERVE IT.
THE EVIDENCE DISCLOSED THROUGH INVESTIGATION BY THE FEDERAL BUREAU OF
INVESTIGATION IS SUFFICIENT TO ESTABLISH A PRIMA FACIE CASE AGAINST MR.
DICKENS; AND THE ADMINISTRATIVE OFFICE CONCERNED HAS FOUND ON THE BASIS
OF THAT EVIDENCE, THAT MR. DICKENS IS, IN FACT, RESPONSIBLE FOR THE LOSS
SUSTAINED BY THE GOVERNMENT. MR. DICKENS HAS DENIED RESPONSIBILITY BUT,
APPARENTLY, HAS SUBMITTED NO EVIDENCE TO SUPPORT HIS DENIAL. A MERE
CATEGORICAL DENIAL IS NOT SUFFICIENT TO OVERCOME THE PRIMA FACIE CASE
ESTABLISHED BY THE INVESTIGATION AND ADMINISTRATIVE FINDING, AND MR.
DICKENS MUST BE CONSIDERED INDEBTED TO THE UNITED STATES. SEE 19 COMP.
GEN. 88.
ACCORDINGLY, THE PAYROLL VOUCHER COVERING UNPAID SALARY AND UNAPPLIED
BOND DEDUCTIONS FOR PAYMENT TO MR. DICKENS MAY NOT PROPERLY BE
CERTIFIED, THE TOTAL THEREOF BEING FOR APPLICATION TOWARD SATISFACTION
OF THE INDEBTEDNESS AND FOR CREDIT TO THE APPROPRIATE ACCOUNT IN THE
TREASURY TO WHICH THE $486 WOULD HAVE OTHERWISE BEEN DEPOSITED.
B-139972, JUL. 10, 1959
TO MR. RICHARD V. WOOLRIDGE, AUTHORIZED CERTIFYING OFFICER,
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE:
YOUR LETTER OF JUNE 16, 1959, REQUESTS OUR DECISION WHETHER YOU MAY
CERTIFY FOR PAYMENT THE VOUCHER FOR $94.50, THEREWITH TRANSMITTED IN
FAVOR OF MISS LOVINA A. WOODROW, AN EMPLOYEE OF THE PUBLIC HEALTH
SERVICE.
THE RECORD SHOWS THAT MISS WOODROW TRAVELED ON OFFICIAL BUSINESS BY
CHARTERED AIRPLANE DURING APRIL AND MAY 1959, RESPECTIVELY, FROM BETHEL,
ALASKA, TO QUINHAGAK, ALASKA, AND RETURN, AND FROM BETHEL TO AKIAK,
ALASKA, AND RETURN. IN PREPARING THE VOUCHER YOUR OFFICE HAS APPLIED A
$6 PER DIEM RATE FOR TRAVEL TIME BETWEEN THE SAID POINTS. YOU SAY THAT
IN TALKING WITH OTHER LOCAL AUTHORIZED CERTIFYING OFFICERS, REGARDING
THE SUBMITTED VOUCHER, THEY ARE OF THE OPINION THE $6 RATE IS NOT
APPLICABLE BECAUSE ALL TRAVEL HAS BEEN PERFORMED WITHIN ONE LOCALITY.
ATTACHMENT A (APPENDIX I, REVISED), TRANSMITTAL MEMORANDUM NO. 9, TO
BUREAU OF BUDGET CIRCULAR A-7, REVISED, DATED FEBRUARY 17, 1959, SETTING
FORTH THE MAXIMUM PER DIEM RATES FOR TRAVEL BEYOND THE LIMITS OF THE
CONTINENTAL UNITED STATES PROVIDES IN PART AS FOLLOWS:
"* * * THESE PER DIEM RATES ARE NOT APPLICABLE WHILE TRAVELERS ARE EN
ROUTE BY AIRPLANE, TRAIN, OR BOAT TO OR FROM, OR BETWEEN, LOCALITIES
BEYOND THE LIMITS OF THE CONTINENTAL UNITED STATES AND IN ALASKA, IN
ACCORDANCE WITH SECTION 6.2C OF STANDARDIZED GOVERNMENT TRAVEL
REGULATIONS, EFFECTIVE AUGUST 1, 1956. THEY ARE APPLICABLE TO TRAVEL
WITHIN A LOCALITY AS SPECIFIED BELOW.
"THE CHANGES, IDENTIFIED BY ASTERISK, ARE EFFECTIVE MARCH 1, 1959.
MAXIMUM PER
"LOCALITY DIEM RATES
* * * * * *
*ALASKA
ANCHORAGE 21.00
*FAIRBANKS 21.00
*JUNEAU 21.00
*OTHER 15.00
* * * * * *"
SECTION 6.2C OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS
PROVIDES IN PART AS FOLLOWS:
"A PER DIEM RATE OF $6 IS PRESCRIBED FOR * * * TRAVEL BY AIRPLANE,
TRAIN, OR BOAT * * * EN ROUTE TO OR FROM A LOCALITY BEYOND THE LIMITS OF
THE CONTINENTAL UNITED STATES, OR BETWEEN SUCH LOCALITIES, INCLUDING
STOPOVERS OF LESS THAN 6 HOURS: * * *.'
THE WORD "OTHER," AS USED IN TRANSMITTAL MEMORANDUM NO. 9, TO BUREAU
OF BUDGET CIRCULAR NO. A-7, REVISED, CONCERNING MAXIMUM PER DIEM RATES
IN ALASKA, MEANS LOCALITIES IN ALASKA OTHER THAN THOSE ENUMERATED
THEREIN, NAMELY, ANCHORAGE, FAIRBANKS, AND JUNEAU. THEREFORE, IF THE
TRAVEL AUTHORIZATION AUTHORIZED THE MAXIMUM RATE OF PER DIEM FOR THE
TRAVEL IN QUESTION, THE EMPLOYEE WOULD BE ENTITLED TO $15 WHILE
TRAVELING BY AIRPLANE BETWEEN THE POINTS IN QUESTION AS THEY ARE
CONSIDERED TO BE WITHIN ONE LOCALITY.
ACTION ON THE VOUCHER, WHICH, TOGETHER WITH RELATED PAPERS IS
RETURNED, MAY BE TAKEN IN ACCORDANCE WITH THE FOREGOING HOLDING.
B-140006, JUL. 10, 1959
TO MRS. B. C. SCARIOT, AUTHORIZING CERTIFYING OFFICER, TREASURY
DEPARTMENT:
BY LETTER OF JUNE 16, 1959, YOU ASK WHETHER THE VOUCHER ENCLOSED
THEREWITH PROPERLY MAY BE CERTIFIED FOR PAYMENT. THE SAID VOUCHER IS
STATED IN FAVOR OF HARRY WILSON FOR $25 WHICH REPRESENTS THE AMOUNT OF
THE FEE PAID BY HIM WHEN HE SUBMITTED AN APPLICATION TO PRACTICE BEFORE
THE INTERNAL REVENUE SERVICE.
IT IS EXPLAINED THAT SINCE MR. WILSON IS NEITHER AN ATTORNEY NOR A
CERTIFIED PUBLIC ACCOUNTANT HE WOULD BE REQUIRED TO TAKE A WRITTEN
EXAMINATION TO ESTABLISH HIS ELIGIBILITY FOR ENROLLMENT. MR. WILSON NOW
HAS ADVISED THAT HE DOES NOT WISH TO TAKE THE WRITTEN EXAMINATION AND
HAS REQUESTED THAT THE APPLICATION FEE BE REFUNDED TO HIM.
RELATIVE TO THIS MATTER SECTION 10.5 (A) OF TREASURY DEPARTMENT
CIRCULAR NO. 230 (REVISED) PROVIDES IN PERTINENT PART AS FOLLOWS:
"* * * AN APPLICANT FOR ENROLLMENT SHALL FILE WITH THE DIRECTOR OF
PRACTICE AN APPLICATION ON FORM 23, PROPERLY EXECUTED UNDER OATH OR
AFFIRMATION. SUCH APPLICATION SHALL BE ACCOMPANIED BY A CHECK OR MONEY
ORDER IN THE AMOUNT OF $25.00, PAYABLE TO THE TREASURER OF THE UNITED
STATES, WHICH AMOUNT SHALL CONSTITUTE A FEE WHICH SHALL BE CHARGED TO
EACH APPLICANT FOR ENROLLMENT. THE FEE SHALL BE RETAINED BY THE UNITED
STATES WHETHER OR NOT THE APPLICANT IS GRANTED ENROLLMENT. * * *"
CONCERNING THE ABOVE LANGUAGE THE DIRECTOR OF PRACTICE IS QUOTED IN
YOUR LETTER AS STATING THAT---
"IT WAS THE INTENTION OF SECTION 10.5 (A) TO WARN APPLICANTS FOR
SPECIAL ENROLLMENT THAT THE $25.00 APPLICATION FEE WOULD NOT BE REFUNDED
WHERE THE APPLICANT, (1) SAT FOR THE EXAMINATION BUT FAILED TO PASS;
(2) PASSED THE WRITTEN EXAMINATION BUT BECAUSE OF DEROGATORY CHARACTER
REPORT OR FOR SOME OTHER REASON WAS NOT GRANTED ENROLLMENT. IT WAS NOT
INTENDED THAT THE FEE WOULD BE EXACTED AND RETAINED WHERE THE APPLICANT
WAS FOUND TO BE NOT QUALIFIED TO TAKE THE WRITTEN EXAMINATION OR FOR
SOME REASON REQUESTED WITHDRAWAL OF HIS APPLICATION BEFORE THE TIME OF
THE EXAMINATION.'
THE MATTER IS NOT FREE OF DOUBT UNDER THE PRESENT WORDING OF THE
REGULATION. IN VIEW OF THE EXPRESSED PURPOSE OF THE REGULATION,
HOWEVER, AND WHAT OTHERWISE MIGHT BE CONSIDERED A RATHER INEQUITABLE
RESULT, WE WILL NOT OBJECT TO THE REFUND OF THE APPLICATION FEE "WHERE
THE APPLICANT WAS FOUND TO BE NOT QUALIFIED TO TAKE THE WRITTEN
EXAMINATION OR FOR SOME REASON REQUESTED WITHDRAWAL OF HIS APPLICATION
BEFORE THE TIME OF THE EXAMINATION.'
ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE
PROCESSED FOR PAYMENT IF OTHERWISE PROPER.
B-139507, JUL. 9, 1959
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO YOUR LETTER OF APRIL 30, 1959, REQUESTING OUR
DECISION AS TO WHETHER, IN VIEW OF THE FACTS SET FORTH IN THE ATTACHED
FILE, MAGUIRE HOMES, INC., THE "ELIGIBLE BUILDER" UNDER HOUSING CONTRACT
NO. DA-19-016-ENG-5307 DATED APRIL 17, 1957 (FOR "CONSTRUCTION OF
CAPEHART FAMILY HOUSING AND OFF-SITE IMPROVEMENTS AND UTILITIES FOR
PROVIDENCE DEFENSE AREA AT BRISTOL, COVENTRY, FOSTER, NORTH KINGSTOWN
AND NORTH SMITHFIELD, RHODE ISLAND"), MAY BE ALLOWED THE SUM OF
$10,414.18 CLAIMED TO BE DUE IN ADDITION TO THE CONTRACT PRICE. THE
AMOUNT CLAIMED BY THE ELIGIBLE BUILDER (HEREINAFTER REFERRED TO AS THE
CONTRACTOR) REPRESENTS USE TAXES IN THE SUM OF $10,250.04, WITH INTEREST
OF $164.14, IMPOSED BY THE STATE OF RHODE ISLAND AND PAID BY NATIONAL
HOMES, INC., LAFAYETTE, INDIANA, ON PREFABRICATED HOUSES SOLD TO AND
USED BY THE CONTRACTOR IN THE PERFORMANCE OF THE HOUSING CONTRACT.
UNDER THE GENERAL LAWS OF RHODE ISLAND (1956), TITLE 44, CHAPTER 18,
"SALES AND USE TAXES--- LIABILITY AND COMPUTATION," A SALES TAX IS
IMPOSED AT THE RATE OF SPECIFIED PERCENTAGES UPON SALES AT RETAIL IN THE
STATE BASED ON THE GROSS RECEIPTS FROM SUCH SALES (44-18-18), AND A USE
TAX IS IMPOSED AT THE SAME RATES ON THE STORAGE, USE, OR OTHER
CONSUMPTION IN THE STATE OF TANGIBLE PERSONAL PROPERTY PURCHASED FROM
ANY RETAILER BASED ON THE SALE PRICE OF THE PROPERTY (44-18-20).
SECTION 44-18-10 DEFINES "USE" TO INCLUDE "THE EXERCISE OF ANY RIGHT OR
POWER OVER TANGIBLE PERSONAL PROPERTY INCIDENT TO THE OWNERSHIP OF THAT
PROPERTY, EXCEPT THAT IT DOES NOT INCLUDE THE SALE OF THAT PROPERTY IN
THE REGULAR COURSE OF BUSINESS.' SECTION 44-18-25 PROVIDES THAT IT SHALL
BE PRESUMED THAT ALL GROSS RECEIPTS ARE SUBJECT TO THE SALES TAX, AND
THAT THE USE OF ALL TANGIBLE PERSONAL PROPERTY IS SUBJECT TO THE USE
TAX, AND THAT ALL TANGIBLE PERSONAL PROPERTY SOLD OR IN PROCESSING OR
INTENDED FOR DELIVERY OR DELIVERED IN THE STATE IS SOLD OR DELIVERED FOR
STORAGE, USE, OR OTHER CONSUMPTION IN THE STATE, UNTIL THE CONTRARY IS
ESTABLISHED TO THE SATISFACTION OF THE ADMINISTRATOR; THAT THE BURDEN
OF PROVING THE CONTRARY IS UPON THE PERSON WHO MAKES THE SALE AND THE
PURCHASER, UNLESS THE PERSON WHO MAKES THE SALE TAKES FROM THE PURCHASER
A CERTIFICATE TO THE EFFECT THAT THE PURCHASE WAS FOR RESALE; THAT "THE
CERTIFICATE RELIEVES THE PERSON MAKING THE SALE FROM THE BURDEN OF PROOF
ONLY IF TAKEN IN GOOD FAITH FROM A PERSON WHO IS ENGAGED IN THE BUSINESS
OF MAKING SALES AT RETAIL AND WHO HOLDS A PERMIT AS PROVIDED IN SECTION
44-19-2 OR SECTION 44-19-3 AND WHO, AT THE TIME OF MAKING THE PURCHASE,
INTENDS TO SELL WHAT IS SO PURCHASED IN THE REGULAR COURSE OF BUSINESS *
* *" AND THAT THE CERTIFICATE SHALL CONTAIN SUCH INFORMATION AND BE IN
SUCH FORM AS THE TAX ADMINISTRATOR MAY REQUIRE.
SALES AND USES BEYOND THE CONSTITUTIONAL POWERS OF THE STATE ARE
EXEMPTED UNDER SECTION 44-18-30; AND THE GROSS RECEIPTS FROM SALES
DIRECTLY TO THE UNITED STATES, ITS AGENCIES AND INSTRUMENTALITIES, ARE
EXEMPTED FROM THE COMPUTATION OF THE SALES TAX (44-18-31). SECTION
44-18-32 DEALS EXPRESSLY WITH SALES TO FEDERAL CONTRACTORS AND PROVIDES
AS FOLLOWS:
"44-18-32. SALES TO FEDERAL CONTRACTORS.--- THE SALES TAX IMPOSED BY
THIS CHAPTER SHALL APPLY TO THE GROSS RECEIPTS FROM THE SALE OF ANY
TANGIBLE PERSONAL PROPERTY TO CONTRACTORS PURCHASING SUCH PROPERTY
EITHER AS THE AGENTS OF THE UNITED STATES OR FOR THEIR OWN ACCOUNT AND
SUBSEQUENT RESALE TO THE UNITED STATES FOR USE IN THE PERFORMANCE OF
CONTRACTS WITH THE UNITED STATES FOR THE CONSTRUCTION OF IMPROVEMENTS ON
OR TO REAL PROPERTY, EXCEPT INSOFAR AS THE IMPOSITION OF SUCH A TAX
WOULD VIOLATE THE PROVISIONS OF THE CONSTITUTION OF THE UNITED STATES.'
THE HOUSING CONTRACT WAS BASED ON AN INVITATION FOR BIDS ISSUED
DECEMBER 19, 1956, WHICH CITES ,TITLE IV OF THE HOUSING AMENDMENTS OF
1955 (PUBLIC LAW 345, 84TH CONGRESS; 69 STAT. 635), AS AMENDED,
ENTITLED "ARMED SERVICES HOUSING MORTGAGE INSURANCE," " AS AUTHORITY FOR
THE UNDERTAKING. PURSUANT TO THIS AUTHORITY THE SECRETARY OF DEFENSE OR
HIS DESIGNEE MAY ENTER INTO CONTRACTS WITH ANY ELIGIBLE BIDDER FOR THE
CONSTRUCTION OF URGENTLY NEEDED MILITARY HOUSING WHICH CONTRACTS "SHALL
CONTAIN SUCH TERMS AND CONDITIONS AS THE SECRETARY MAY DETERMINE TO BE
NECESSARY TO PROTECT THE INTERESTS OF THE UNITED STATES.' 42 U.S.C.
1594A. THE INVITATION CONTAINED SPECIFIC PROVISIONS RELATING TO TAXES
AS SET FORTH IN THE ACCOMPANYING SPECIMEN CONTRACT AND GENERAL
PROVISIONS ULTIMATELY INCORPORATED INTO THE CONTRACT. UNDER ARTICLE XX,
ENTITLED "SALE TO OR SALE FOR RESALE TO THE DEPARTMENT," IT WAS PROVIDED
THAT SUPPLIES AND MATERIALS REQUIRED FOR THE PROJECT WERE TO BE PROCURED
BY THE CONTRACTOR (ON HIS OWN ACCOUNT) FOR RESALE TO THE GOVERNMENT, AS
FOLLOWS:
"ARTICLE XX--- SALE TO OR SALE FOR RESALE TO THE DEPARTMENT
"/34) NOTWITHSTANDING ANY OTHER PROVISION OF THIS HOUSING CONTRACT,
AND NOTWITHSTANDING THE MORTGAGE FINANCING OF THE PROJECT, ALL MACHINES,
EQUIPMENT, SUPPLIES AND MATERIALS SHOWN IN THE DRAWINGS AND
SPECIFICATIONS TO BE ACQUIRED BY THE ELIGIBLE BUILDER AND THE
MORTGAGOR-BUILDER, OR TO BE MANUFACTURED BY THE ELIGIBLE BUILDER AND THE
MORTGAGOR-BUILDER, OR EITHER OF THEM, FOR INCORPORATION INTO THE HOUSING
PROJECT, WHICH REMAIN PERSONAL PROPERTY UNDER THE LAWS OF THE STATE,
SHALL, IF THEY MEET THE STANDARDS REQUIRED BY THIS HOUSING CONTRACT, BE
SO ACQUIRED FOR RESALE, OR MANUFACTURED FOR SALE, TO THE DEPARTMENT.'
BY ADDENDUM NO. 3 DATED JANUARY 3, 1957, THE FOLLOWING PARAGRAPH WAS
ADDED AT THE END OF THE INVITATION FOR BIDS:
" "33. EACH BIDDER SHALL INCLUDE THE FOLLOWING STATEMENT IN HIS BID:
" "THIS BID DOES NOT TAKE INTO CONSIDERATION ANY POSSIBLE STATE SALES
TAX ON ANY ITEMS INCORPORATED IN THE PERMANENT CONSTRUCTION.' "
THE SUCCESSOR CONTRACTING OFFICER HAS STATED IN HIS REPORT ON THIS
MATTER THAT ADDENDUM NO. 3 WAS ISSUED "IN ORDER TO PLACE ALL BIDDERS ON
AN EQUAL BIDDING BASIS, IT NOT BEING KNOWN WHETHER THE CAPEHART PROJECTS
WERE SUBJECT TO TAXATION * * *.' HE ALSO STATED THAT "THE PHRASE "USE
TAX" WAS NOT INCLUDED IN SAID ADDENDUM NO. 3 INASMUCH AS SALES AND USE
TAXES WERE CONSIDERED SYNONYMOUS IN THAT THE FUNCTION OF A USE TAX IS
THE MEANS OF ENFORCING A SALES TAX ON PERSONAL PROPERTY PURCHASED IN A
STATE OTHER THAN THE "SALES TAX STATE" BUT STORED, USED OR CONSUMED IN
THE "SALES TAX STATE" (THAT IS, OUT OF STATE PURCHASES WHERE ITEMS
PURCHASED ARE INTENDED FOR USE IN RHODE ISLAND).' THE SUCCESSOR
CONTRACTING OFFICER STATED FURTHER THAT "SINCE THIS OFFICE INTENDED TO
INCLUDE THE USE TAX IN ADDENDUM NO. 3, AND WHEREAS THE CONTRACTOR
THOUGHT THAT THE SALES AND USE TAX WERE SYNONYMOUS, I.E. THAT THE WORDS
"SALES TAX" INCLUDED USE TAXES AS WELL IT IS THE CONTRACTING OFFICER'S
FINDING THAT THE SUBJECT CLAIM IS MERITORIOUS," AND HE HAS REQUESTED
AUTHORITY TO REFORM ADDENDUM NO. 3 ACCORDINGLY.
COPIES OF CORRESPONDENCE FURNISHED WITH THE FILE SUBMITTED DISCLOSE
THAT IN DISCUSSIONS WITH THE CONTRACTOR, ADMINISTRATIVE OFFICIALS OF
YOUR DEPARTMENT CLAIMED EXEMPTION FROM STATE TAXATION RELYING ON THE
PROVISIONS OF SECTION 511 (LAST PROVISO) OF THE HOUSING ACT OF 1956,
PUBLIC LAW 84-1020, 70 STAT. 1111, AND ON THE FURTHER BASIS THAT UNDER
ARTICLE XX OF THE CONTRACT THE CONTRACTOR MIGHT BE CONSIDERED AS ACTING
AS AN AGENT IN PROCURING MATERIALS AND SUPPLIES FOR RESALE TO THE
GOVERNMENT. THE FILE ALSO DISCLOSES THAT THE CONTRACTOR ADVISED ITS
SUBCONTRACTORS AND SUPPLIERS THAT THEY WERE NOT TO TAKE INTO
CONSIDERATION SALES OR USE TAXES ON ITEMS FURNISHED BY THEM IN
CONNECTION WITH THE CONSTRUCTION OF THE PROJECT. THE RHODE ISLAND
TAXING OFFICIALS TOOK THE POSITION THAT UNLESS THE CONTRACTOR "HAD BEEN
APPOINTED AND WAS ACTING AS AGENT FOR THE GOVERNMENT IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 6 (B) OF REGULATION C GOVERNING CONTRACTORS
AND SUBCONTRACTORS" THE CONTRACTOR WOULD BE REGARDED AS THE PURCHASER AT
RETAIL AND WOULD BE LIABLE FOR THE SALES AND USE TAXES, AND ADVISED THAT
IT WAS THEIR UNDERSTANDING THE CONTRACTOR HAD NOT BEEN SO APPOINTED OR
AUTHORIZED TO ACT AS AGENT FOR THE GOVERNMENT. THEREAFTER, THE
ADMINISTRATIVE OFFICIALS SUGGESTED THAT EXEMPTION FROM THE USE TAX ONLY
BE CLAIMED ON THE BASIS THAT THE RHODE ISLAND USE TAX PROVISION DID NOT
APPLY TO PERSONAL PROPERTY PURCHASED FOR RESALE, OR OPERATE SO AS TO
MAKE THE USE TAX APPLICABLE TO OUT-OF-STATE PURCHASES BY A CONTRACTOR OF
PROPERTY INTENDED SOLELY FOR RESALE TO THE UNITED STATES WITHIN THE
STATE. NATIONAL HOMES CORPORATION SUBSEQUENTLY RECEIVED FROM THE STATE
TAX ADMINISTRATION OFFICER A "NOTICE OF DEFICIENCY DETERMINATION UNDER
THE SALES AND USE TAX LAW" SHOWING THE AMOUNT OF THE TAX, INTEREST AND
PENALTY DUE, AND THE CONTRACTOR HAS NOW REQUESTED "THAT THE CONTRACT
PRICE BE INCREASED BY THE AMOUNT OF $10,250.04 AND INTEREST OF $164.14,
WHICH SUM REPRESENTS THE AMOUNT RHODE ISLAND SALES TAX PAID BY NATIONAL
HOMES CORPORATION ON PREFABRICATED HOUSES SOLD BY THAT CORPORATION TO
MAGUIRE HOMES, INC. AND USED BY IT IN THE PERFORMANCE OF THIS CONTRACT,
AND HAS BEEN BILLED TO MAGUIRE HOMES, INC.'
THE LAST PROVISO IN SECTION 511 OF THE HOUSING ACT OF 1956 (NOTE 42
U.S.C. 1594) PROVIDES IN MATERIAL PART THAT "PROPERTIES LEASED PURSUANT
TO THE PROVISIONS OF SECTION 805 OF THE NATIONAL HOUSING ACT, AS
AMENDED, ON OR AFTER AUGUST 11, 1955 (SECTION 1748D OF TITLE 12), * * *
SHALL BE EXEMPT FROM STATE OR LOCAL TAXES OR ASSESSMENTS.' THIS PROVISO
CONSIDERED WITH THE OTHER PROVISIONS OF THE LAW, ITS LEGISLATIVE HISTORY
AND PURPOSE REASONABLY CONSTRUED REFERS TO PROPERTY
TAXES UPON LEASEHOLD INTERESTS, AND NOT TO TRANSACTIONS UNDER
CONSTRUCTION CONTRACT OPERATIONS SUCH AS HERE INVOLVED. SEE APPLICATION
OF S. S. SILBERBLATT, INC., DECIDED DECEMBER 2, 1958, BY THE APPELLATE
DIVISION, SUPREME COURT OF NEW YORK, 180 N.Y.S.2D 210, 213, WHERE THIS
STATUTE WAS CONSIDERED AND THE AUTHORITIES CITED. IN OTHER WORDS, THE
STATUTORY AUTHORITY FOR THE HOUSING CONTRACT DOES NOT CONTAIN A GENERAL
EXEMPTION FROM STATE TAXATION SUCH AS WAS CONSIDERED IN CARSON V.
ROANE-ANDERSON CO., 342 U.S. 232 (JANUARY 7, 1952) WHERE IT WAS HELD
THAT THE BROAD LANGUAGE OF SECTION 9 (B) OF THE ATOMIC ENERGY ACT OF
1946, 60 STAT. 765, PROVIDING THAT "THE COMMISSION, AND THE PROPERTY,
ACTIVITIES, AND INCOME OF THE COMMISSION, ARE HEREBY EXPRESSLY EXEMPTED
FROM TAXATION IN ANY MANNER OR FORM BY ANY STATE, COUNTY, MUNICIPALITY,
OR ANY SUBDIVISION THEREOF" (WHICH SECTION WAS REPEALED FOLLOWING THE
COURT'S RULING INDICATING A CONGRESSIONAL RECOGNITION OF THE FEDERAL
GOVERNMENT'S OBLIGATION TO SHARE THE BURDEN COVERED BY SUCH TAXATION),
EXEMPTED CONTRACTORS WITH THE ATOMIC ENERGY COMMISSION FROM SALES AND
USE TAXES IMPOSED BY THE TENNESSEE RETAILERS' SALES TAX ACT. FURTHER,
THE CONTRACT PROVISIONS HERE INVOLVED DO NOT PURPORT TO NAME THE
GOVERNMENT AS THE REAL PURCHASER, WHICH WAS THE SITUATION CONSIDERED IN
KERN-LIMERICK V. SCURLOCK, 347 U.S. 110 (FEBRUARY 8, 1954) WHERE THE
COURT HELD THAT THE ARKANSAS GROSS RECEIPTS TAX LAW OF 1941, IMPOSING AN
EXCISE TAX ON THE GROSS RECEIPTS FROM ALL SALES IN THE STATE, WAS
UNCONSTITUTIONAL AS APPLIED TO THE PURCHASE OF TRACTORS FOR USE IN
PERFORMING A GOVERNMENT CONTRACT WHICH EXPRESSLY PROVIDED THAT THE
CONTRACTOR SHOULD ACT AS A PURCHASING AGENT FOR THE GOVERNMENT. AS A
MATTER OF FACT, THE INFORMATION FURNISHED SHOWS THAT AS EARLY AS MARCH
1, 1954, MORE THAN TWO YEARS PRIOR TO THE DATE OF THE HOUSING CONTRACT
INVITATION, IT WAS THE ESTABLISHED POLICY OF THE DEPARTMENT OF DEFENSE
GOVERNING PROCUREMENT CONTRACTS (WITH THE EXCEPTION OF CERTAIN NAVY
COST-TYPE CONTRACTS) THAT CONTRACTORS WOULD NOT BE DESIGNATED AS AGENTS
OF THE GOVERNMENT FOR THE PURCHASE OF SUPPLIES. THIS POLICY APPARENTLY
WAS IN EFFECT WHEN THE HOUSING CONTRACT WAS MADE, AND IT SEEMS
ABUNDANTLY CLEAR FROM THE FOREGOING THAT THERE WAS NO INTENTION ON THE
PART OF THE STATE TAXING AUTHORITIES TO FOREGO THE COLLECTION OF SALES
AND USE TAXES ON TRANSACTIONS INCIDENT TO THE PERFORMANCE OF
CONSTRUCTION CONTRACTS WHERE THE CONTRACTORS WERE NOT AUTHORIZED AGENTS
OF THE GOVERNMENT UNLESS, OF COURSE, SUCH TRANSACTIONS WERE OTHERWISE
EXEMPT UNDER THE CONSTITUTIONAL IMMUNITY OF THE UNITED STATES OR UNDER
THE PROVISIONS OF THE STATE STATUTES.
STATUTORY PROVISIONS FOR SALES AND USE TAXES SIMILAR TO THOSE OF THE
STATE OF RHODE ISLAND WERE CONSIDERED BY THE SUPREME COURT OF THE UNITED
STATES AND FOUND TO BE A VALID EXERCISE OF THE STATE TAXING POWER IN
HENNEFORD V. SILAS MASON CO., 300 U.S. 577 (MARCH 29, 1957), UPHOLDING A
USE TAX IMPOSED BY THE STATE OF WASHINGTON ON PROPERTY BROUGHT INTO THE
STATE FOR USE OF CONTRACTORS IN THE CONSTRUCTION OF GRAND COULEE DAM.
THAT THE CONSTITUTION DOES NOT EXTEND SOVEREIGN EXEMPTION FROM STATE
TAXATION TO CORPORATIONS OR INDIVIDUALS CONTRACTING WITH THE UNITED
STATES MERELY BECAUSE THEIR ACTIVITIES ARE USEFUL TO THE GOVERNMENT, OR
BECAUSE THE ECONOMIC BURDEN IS SHIFTED TO THE GOVERNMENT THROUGH
OPERATION OF THEIR CONTRACTS, IS WELL ESTABLISHED. JAMES V. DRAVO
CONTRACTING CO., 302 U.S. 134, 153 (DECEMBER 6, 1937); ALABAMA V. KING
AND BOOZER, 314 U.S. 1 AND CURRY V. UNITED STATES, 314 U.S. 14 (NOVEMBER
10, 1941); AND ESSO STANDARD OIL V. EVANS, 345 U.S. 495 (MAY 4, 1953).
RECENTLY THE COURT REVIEWED AND APPROVED THE RATIONALE OF THESE CASES
IN UNITED STATES V. CITY OF DETROIT, 355 U.S. 466, 469, SUSTAINING A TAX
IMPOSED BY THE STATE OF MICHIGAN AGAINST A LESSEE OF GOVERNMENT
PROPERTY, AND IN CITY OF DETROIT V. MURRAY CORPORATION, 355 U.S. 489
(MARCH 3, 1958) SUSTAINING A PERSONAL PROPERTY TAX IN THE NATURE OF A
USE TAX IMPOSED BY THE CITY OF DETROIT AND WAYNE COUNTY, MICHIGAN,
AGAINST A GOVERNMENT CONTRACTOR, WHERE IT IS STATED AT PAGE 494,"THE ONE
PRINCIPLE IN THIS AREA WHICH HAS HERETOFORE BEEN CLEARLY SETTLED IS THAT
THE IMPOSITION OF AN INCREASED FINANCIAL BURDEN ON THE GOVERNMENT DOES
NOT BY ITSELF INVALIDATE A STATE TAX.'
MANIFESTLY, SALES TAX AND USE TAX ARE NOT SYNONYMOUS PHRASES.
HOWEVER, A USE TAX MAY BE IMPOSED IN CONJUNCTION WITH A SALES TAX AND
OPERATE AS A "COMPENSATING TAX" AS EXEMPLIFIED IN THE HENNEFORD CASE,
AND IT IS APPARENT THAT THE "SALES AND USE TAXES" IMPOSED UNDER CHAPTER
18 OF THE RHODE ISLAND STATUTES HAVE BEEN SO CONSTRUED AND APPLIED BY
THE STATE TAXING AUTHORITIES. FURTHERMORE, IT SEEMS CLEAR FROM THE
TERMS OF THE CONTRACT REQUIRING THE CONTRACTOR TO "FURNISH ALL LABOR,
MATERIAL, TOOLS, PLANT AND EQUIPMENT, AND PERFORM ALL SERVICES AND WORK
NECESSARY TO CONSTRUCT THE HOUSING PROJECT" (ARTICLE I) AND PROVIDING
FOR PERIODICAL PAYMENTS TO THE CONTRACTOR BASED UPON "THE TOTAL OF THE
PURCHASE PRICE OR THE ESTIMATED COST, WHICHEVER IS LESS, OF UNINSTALLED
ACCEPTABLE MATERIALS SUITABLY STORED ON THE MORTGAGED PROPERTY IN A
MANNER ACCEPTABLE TO THE CONTRACTING OFFICER, PLUS THE COST OF THE
PORTIONS OF THE WORK ACCEPTABLY COMPLETED" (ARTICLE IV), CONSIDERED WITH
THE OTHER CONTRACT PROVISIONS AS A WHOLE, THAT THE TRANSACTION
INVOLVED--- A PURCHASE OF PREFABRICATED HOUSES FROM NATIONAL HOMES,
INC.--- WAS NOT A SALE AT RETAIL TO THE CONTRACTOR FOR RESALE IN THE
REGULAR COURSE OF BUSINESS WITHIN THE MEANING OF THE STATUTORY
DEFINITION 44-18-10 AND THE PROVISIONS OF SECTION 44-18-25 OF THE RHODE
ISLAND STATUTES SO AS TO BE EXEMPTED FROM THE USE TAX IMPOSED. ON THE
CONTRARY, THE RECORD REASONABLY ESTABLISHES THAT THE CONTRACTOR
PURCHASED THE PREFABRICATED HOUSES ON HIS OWN ACCOUNT FOR USE IN
PERFORMANCE OF THE CONTRACT; THAT TITLE TO THE ITEMS PURCHASED PASSED
TO THE CONTRACTOR ON DELIVERY IN THE STATE OF RHODE ISLAND; AND IN THE
ABSENCE OF AN APPROPRIATE RESALE CERTIFICATE FROM THE PURCHASER, THE
SELLER BECAME LIABLE FOR COLLECTION OF THE USE TAX IN QUESTION. CF.
AVCO MANUFACTURING CORPORATION V. CONNELLY, 140 A.2D 479, AND UNITED
AIRCRAFT CORPORATION V. CONNELLY, 140 A.2D 486, BOTH DECIDED MARCH 25,
1958, WHERE THE SUPREME COURT OF ERRORS OF CONNECTICUT CONSIDERED AND
CONSTRUED SALES AND USE TAXES ASSESSED AGAINST FEDERAL CONTRACTORS UNDER
STATUTES EMPLOYING LANGUAGE ALMOST IDENTICAL WITH THE RHODE ISLAND
STATUTES, AND THE AUTHORITIES THERE CITED. SEE, ALSO, CUSTOM BUILT
HOMES CO. V. KANSAS STATE COMMISSION OF REVENUE AND TAXATION, 334 P.2D
808, REHEARING DENIED MARCH 11, 1959, WHERE THE SUPREME COURT OF KANSAS
SUSTAINED A TAX ASSESSMENT AGAINST A CONTRACTOR BASED, AS HERE, UPON THE
USE OF PREFABRICATED HOUSE UNITS PURCHASED FROM AN OUT-OF-STATE
MANUFACTURER.
HENCE, IN VIEW OF THE SUCCESSOR CONTRACTING OFFICER'S REPORT TO THE
EFFECT THAT IT WAS THE INTENTION OF THE CONTRACTING PARTIES TO EXCLUDE
FROM THE CONTRACT PRICE "USE" AS WELL AS "SALES" TAXES UNDER THE
LANGUAGE "ANY POSSIBLE STATE SALES TAX" APPEARING IN ADDENDUM NO. 3,
UPON RECEIPT OF SATISFACTORY EVIDENCE OF PAYMENT THEREOF TO NATIONAL
HOMES, INC., REIMBURSEMENT OF THE AMOUNT CLAIMED BY THE CONTRACTOR MAY
BE MADE.
B-139642, JUL. 9, 1959
TO OSCAR LLOYD LATHIM, CD1, 9423406:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 21, 1959, IN EFFECT
REQUESTING REVIEW OF THE SETTLEMENT OF APRIL 9, 1959, WHICH DISALLOWED
YOUR CLAIM FOR REFUND OF $74.73, REPRESENTING THE AMOUNT COLLECTED FROM
YOU AS THE COST OF STORAGE OF YOUR HOUSEHOLD EFFECTS FROM MAY 14 TO
NOVEMBER 13, 1956.
BY ORDERS DATED APRIL 30, 1956, YOU WERE TRANSFERRED FROM WASHINGTON,
D.C., TO PORT HUENEME, CALIFORNIA, FOR TEMPORARY DUTY OF 14 WEEKS'
DURATION ATTENDING THE NAVAL SCHOOL, AND FOR FURTHER ASSIGNMENT. THE
ORDERS REQUIRED YOU TO REPORT NOT LATER THAN JUNE 29, 1956. BY ORDERS
DATED OCTOBER 23, 1956, YOU WERE TRANSFERRED TO U.S. NAVAL MOBILE
CONSTRUCTION BATTALION ELEVEN AT FORT HUENEME FOR DUTY. ON THE BASIS OF
THE FIRST ORDERS YOUR HOUSEHOLD EFFECTS, WEIGHING 2,490 POUNDS, WERE
HAULED TO COMMERCIAL STORAGE IN WASHINGTON, D.C., ON MAY 14, 1956. THE
DEPARTMENT OF THE NAVY PAID $170.60 REPRESENTING THE COST OF HAULING
YOUR EFFECTS TO STORAGE, HANDLING IN STORAGE, AND STORAGE FOR SIX
MONTHS. UPON AUDIT OF THE DISBURSING OFFICER'S ACCOUNT WE TOOK
EXCEPTION TO THE PAYMENT OF STORAGE AND RELATED HANDLING CHARGES. AS
THE RESULT, THE AMOUNT OF THE EXCEPTION WAS COLLECTED FROM YOU BY
CHECKAGE. IN THE SETTLEMENT MENTIONED ABOVE IT WAS STATED THAT THE
STORAGE WAS NOT INCIDENT TO AN ACTUAL SHIPMENT OF THE EFFECTS AND THAT
YOUR EFFECTS APPARENTLY WERE PLACED IN STORAGE PENDING FURTHER
DISPOSITION. IN YOUR REQUEST FOR REVIEW YOU STATE THAT YOU COULD NOT
HAVE SHIPPED YOUR EFFECTS AT THE TIME THEY WERE PLACED IN STORAGE FOR
THE REASON THAT YOU WERE NOT ASSIGNED TO PERMANENT DUTY UNTIL SIX MONTHS
LATER; THAT YOU DID NOT CONTEMPLATE LEAVING THEM IN STORAGE
INDEFINITELY, AND THAT AS A MATTER OF FACT YOUR WIFE HAD THEM SHIPPED TO
OXNARD, CALIFORNIA, IN OCTOBER 1957, AT WHICH TIME SHE HAD A FEW ITEMS
MOVED INTO FURNISHED QUARTERS AND THE BALANCE PLACED IN STORAGE.
THE STORAGE OF HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES
IS GOVERNED BY JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO SECTION
303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C.
253C. PARAGRAPH 8006-1 OF THOSE REGULATIONS PROVIDES FOR TEMPORARY
STORAGE IN COMMERCIAL FACILITIES WHEN NECESSARY IN CONNECTION WITH A
SHIPMENT OF EFFECTS INCIDENT TO A PERMANENT CHANGE OF STATION. IT HAS
BEEN HELD THAT THE MOVEMENT OF EFFECTS FROM STORAGE AT THE OLD STATION
TO STORAGE AT THE NEW STATION, OR OTHER DESTINATION, IS MERELY A
CONTINUATION OF STORAGE INTERRUPTED BY TRANSPORTATION FROM ONE PLACE OF
STORAGE TO ANOTHER PLACE OF STORAGE AND, CONSEQUENTLY CANNOT BE
CONSIDERED TEMPORARY STORAGE UNDER THE CONDITIONS CONTEMPLATED BY THE
STATUTE AND APPLICABLE REGULATIONS. IN THE CIRCUMSTANCES, THERE WAS NO
AUTHORITY FOR PAYMENT OF ANY PART OF THE STORAGE, AND THERE IS NO LEGAL
BASIS FOR PAYMENT OF YOUR CLAIM.
B-139863, JUL. 9, 1959
TO THE PACIFIC INTERMOUNTAIN EXPRESS COMPANY:
REFERENCE IS MADE TO YOUR THREE LETTERS OF MAY 7, 1959, UNDER YOUR
CLAIMS NOS. 8-35, 9-2387, AND 9-2147, CONCERNING OVERPAYMENTS OF
$686.80, $3,045.71, AND $333.46 STATED ON YOUR BILLS NOS. 25104, 25052,
AND 25277, RESPECTIVELY, FOR THE TRANSPORTATION OF GOVERNMENT PROPERTY
UNDER GOVERNMENT BILLS OF LADING.
OUR NOTICES OF OVERPAYMENT (USGAO FORM 1003), REQUESTING REFUND OF
THE AMOUNT FOUND OVERPAID ON EACH BILL, WERE SENT TO YOU ON BILL NO.
25104 IN DECEMBER 1957 (AMENDED APRIL 1959), AND ON BILLS NOS. 25052 AND
25277 IN APRIL 1959. THE SHIPMENTS INVOLVED MOVED IN JULY AND AUGUST
1955; YOU DECLINE REFUND OF THE OVERPAYMENTS BECAUSE, IN YOUR VIEW,
THEY ARE "OUTLAWED" UNDER SECTION 204A OF THE INTERSTATE COMMERCE ACT,
49 U.S.C. 304A, WHICH, PRIOR TO ITS AMENDMENT IN 1958 BY PUBLIC LAW
85-762, 72 STAT. 859, PROVIDED A TWO-YEAR LIMITATION PERIOD ON ACTIONS
AT LAW BY AND AGAINST COMMON CARRIERS BY MOTOR VEHICLE SUBJECT TO PART
II OF THE INTERSTATE COMMERCE ACT. IN SUPPORT OF YOUR VIEW YOU REFER TO
UNITED STATES V. DEQUEEN AND EASTERN RAILROAD COMPANY, 167 F.SUPP. 545,
DECIDED NOVEMBER 28, 1958, BY THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF ARKANSAS, WHICH HOLDS THAT SECTION 16 (3) (C) OF THE
INTERSTATE COMMERCE ACT, 49 U.S.C. 16 (3) (C), WHICH, PRIOR TO ITS
AMENDMENT IN 1958, PROVIDED A TWO-YEAR LIMITATION PERIOD ON ACTIONS AT
LAW AGAINST CARRIERS SUBJECT TO PART I OF THE INTERSTATE COMMERCE ACT,
APPLIES TO SUITS FOR OVERPAYMENTS FILED BY THE UNITED STATES AGAINST
RAIL CARRIERS.
THE UNITED STATES GENERAL ACCOUNTING OFFICE IS REQUIRED BY SECTION
305 OF THE BUDGET AND ACCOUNTING ACT OF 1921, 31 U.S.C. 71, TO SETTLE
AND ADJUST 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. SEE SKINNER AND EDDY CORP. V. MCCARL, 275 U.S. 1, 4.
CARRIERS' BILLS, GENERALLY, ARE PAID UPON PRESENTATION, PRIOR TO OUR
AUDIT AND SETTLEMENT, BUT THE RIGHT IS RESERVED TO THE UNITED STATES TO
RECOVER ANY OVERPAYMENTS BY DEDUCTION. SECTION 322 OF THE
TRANSPORTATION ACT OF 1940, 49 U.S.C. 66. IN DISCHARGING OUR
RESPONSIBILITIES UNDER THOSE AND OTHER LAWS, QUESTIONS OFTEN ARISE
CONCERNING THE LEGALITY OF PAYMENTS MADE FROM APPROPRIATED MONIES. IT
MAY BE NOTED THAT DECISIONS OF THE UNITED STATES DISTRICT COURTS AND
OTHER LOWER COURTS ARE GIVEN EFFECT WHERE APPROPRIATE AND JUSTIFIED IN
CONNECTION WITH THE DISPOSITION OF THOSE QUESTIONS. HOWEVER, WHERE, AS
IN THIS INSTANCE, A LOWER COURT DECISION IS CONTRARY TO THE INTERESTS OF
THE GOVERNMENT AND IN CONFLICT WITH A GENERAL PRINCIPLE SETTLED IN THE
GOVERNMENT'S FAVOR ON VARIOUS OCCASIONS BY OTHER COURTS, WE WOULD NOT BE
JUSTIFIED IN GIVING SUCH DECISION CONTROLLING EFFECT IN OUR AUDIT
ACTIVITIES.
GENERALLY, THE UNITED STATES, IN ASSERTING RIGHTS VESTED IN IT AS A
SOVEREIGN GOVERNMENT, IS NOT BOUND BY ANY STATUTE OF LIMITATION, UNLESS
THE CONGRESS CLEARLY HAS MANIFESTED A CONTRARY INTENTION. UNITED STATES
V. NASHVILLE, C. AND ST. L. RY. CO., 118 U.S. 120 (1886); CHESAPEAKE
AND DELAWARE CANAL CO. V. UNITED STATES, 250 U.S. 123 (1919); GRAND
TRUNK WESTERN RY. CO. V. UNITED STATES, 252 U.S. 112 (1920); AND
GUARANTY TRUST CO. V. UNITED STATES, 304 U.S. 126 (1938). THE
PROVISIONS OF 49 U.S.C. 16 (3) HAVE BEEN HELD TO BE INAPPLICABLE TO
ACTIONS AT LAW BY THE UNITED STATES; ILLINOIS CENTRAL R. CO. V.
ROGERS, 253 F.2D 349 (1958); SHUTT V. UNITED STATES, 218 F.2D 10,
CERTIORARI DENIED 350 U.S. 822 (1955); COMPARE UNITED STATES V. WESTERN
PACIFIC RAILROAD COMPANY, 352 U.S. 59, 71 (1956). WE NOTE THAT THE
DEQUEEN CASE UPON WHICH YOU RELY, NOW IS ON APPEAL TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH CIRCUIT. UNITED STATES V. DEQUEEN AND
EASTERN RAILROAD COMPANY, NO. 16203.
IT SHOULD ALSO BE NOTED THAT THE PROVISIONS OF 49 U.S.C. 66 PUT NO
TIME LIMIT ON THE RIGHT OF THE UNITED STATES TO MAKE DEDUCTIONS FOR
TRANSPORTATION OVERPAYMENTS AND THAT, AS THE UNITED STATES COURT OF
CLAIMS OBSERVED,"IT WOULD BE REMARKABLE IF THE GOVERNMENT'S RIGHT OF
SETOFF WERE BARRED 2 YEARS AFTER THE DELIVERY OF THE GOODS," SINCE A
CARRIER'S CLAIM MAY BE SUED UPON AT ANY TIME WITHIN 6 YEARS AFTER IT
ACCRUES. ATLANTIC COAST LINE R. CO. V. UNITED STATES, 140 F.SUPP.
569, 572.
IN THESE CIRCUMSTANCES, WE WOULD NOT BE WARRANTED IN CONCLUDING, AS
YOU DO, THAT SECTION 204A OF THE INTERSTATE COMMERCE ACT SUPPLIES TO
ACTIONS BY THE UNITED STATES, OR THAT THE EXPIRATION OF THE LIMITATION
PERIOD IN THAT SECTION PRECLUDES THE RECOVERY OF OVERPAID TRANSPORTATION
CHARGES.
IN THE ABSENCE OF ANY SUBSTANTIVE DEFENSE TO THE DETERMINATION OF THE
OVERPAYMENTS REPORTED IN THE PRESENT MATTER, PROMPT REFUND SHOULD BE
MADE TO AVOID COLLECTION BY OTHER MEANS.
B-139888, JUL. 9, 1959
TO MRS. DOROTHY V. HUFF:
YOUR LETTER OF JUNE 8, 1959, WITH ENCLOSURES, REQUESTS OUR DECISION
CONCERNING THE PROPRIETY OF CERTIFYING FOR PAYMENT A TRANSMITTED PAYROLL
VOUCHER FOR $95.93 IN FAVOR OF MR. GARY F. BANKS FOR SERVICES PERFORMED
IN EXCESS OF THE LIMITATION IN THE EMPLOYMENT AGREEMENT OF 130 DAYS OF
SERVICE OR $1,270 IN A SERVICE YEAR.
THE RECORD SHOWS THAT THROUGH AN ADMINISTRATIVE OVERSIGHT THIS
EMPLOYEE PERFORMED SERVICES IN EXCESS OF THE MAXIMUM HOURS OR AGGREGATE
EARNINGS GRANTED IN AN EXCEPTED APPOINTMENT WITH THE CIVIL AERONAUTICS
ADMINISTRATION, A PREDECESSOR AGENCY OF THE FEDERAL AVIATION AGENCY, AND
RECEIVED AN AGGREGATE OF $1,819.88 THROUGH THE PAY PERIOD ENDED MAY 2,
1959. HE ALSO PERFORMED ADDITIONAL SERVICES OF 53 HOURS DURING THE
PERIOD FROM MAY 5 TO MAY 28, 1959, FOR WHICH PAYMENT OF
$95.93 HAS NOT BEEN MADE. MR. BANKS WAS SEPARATED FROM THE SERVICE
MAY 29, 1959. YOUR DOUBT IN THE MATTER ARISES WHETHER THE UNITED STATES
IS LEGALLY OBLIGATED TO PAY FOR THE EXCESS SERVICES RENDERED BY MR.
BANKS WHICH YOU SAY WERE SATISFACTORILY PERFORMED IN GOOD FAITH, AND THE
GOVERNMENT RECEIVED BENEFIT FOR SUCH SERVICES IN AN AREA WHERE THERE WAS
A CRITICAL SHORTAGE OF QUALIFIED PERSONNEL.
THE RECORD SHOWS THAT THE EXCESS SERVICES PERFORMED RESULTED FROM AND
ADMINISTRATIVE OVERSIGHT BY OMITTING PROPER CONTROLS ON THE PAYROLL
RECORD, AND WERE NOT RENDERED PURSUANT TO AN ADMINISTRATIVE EXTENSION OF
THE APPOINTMENT BEYOND 130 WORKING DAYS IN A SERVICE YEAR, NOR IS THERE
ANY EVIDENCE THAT MR. BANKS' EXCESS SERVICES WERE REQUESTED BY AN
OFFICER AUTHORIZED TO CONTRACT FOR YOUR AGENCY OR ITS PREDECESSOR.
THEREFORE, ON THE PRESENT RECORD MR. BANKS MUST BE CONSIDERED A DE
FACTO EMPLOYEE AFTER THE EXPIRATION OF HIS 130-DAY APPOINTMENT, AND
FOLLOWING THE ESTABLISHED RULE, HE WOULD BE ENTITLED TO RETAIN THE
SALARY ALREADY RECEIVED BUT WOULD NOT BE ENTITLED TO BE PAID ANY AMOUNT
IN ADDITION THERETO. SEE 28 COMP. GEN. 514.
THE VOUCHER, WHICH TOGETHER WITH RELATED PAPERS IS RETURNED, MAY NOT
BE CERTIFIED FOR PAYMENT.
B-139893, JUL. 9, 1959
TO THE JAN PACKAGING INC. :
REFERENCE IS MADE TO A LETTER DATED MAY 29, 1959, FROM SAMUEL
VOLTAGGIO, COUNSELLOR AT LAW, REQUESTING REVIEW OF GENERAL ACCOUNTING
OFFICE CERTIFICATE OF SETTLEMENT DATED MAY 5, 1959, WHICH DISALLOWED
YOUR CLAIM FOR REFUND OF THE PURCHASE PRICE, PLUS FREIGHT CHARGES,
ALLEGED TO BE DUE YOU FOR CERTAIN SURPLUS MATERIAL PURCHASED BY YOU FROM
THE GOVERNMENT UNDER SALES CONTRACT NO. N164-8244 WITH THE DEPARTMENT
OF THE NAVY.
THE CONTENTIONS URGED BY YOU IN THE MATTER HAVE RECEIVED CAREFUL
CONSIDERATION AND, FOR THE REASONS SET FORTH IN THE CERTIFICATE OF
SETTLEMENT, IT WAS HELD THAT THERE WAS NO LEGAL AUTHORITY FOR THE
ALLOWANCE OF YOUR CLAIM. YOU HAVE NOT SUBMITTED ANY INFORMATION OR DATA
IN ADDITION TO THAT PREVIOUSLY FURNISHED AND CONSIDERED BY OUR OFFICE,
AND UPON A RE-EXAMINATION OF THE RECORD NOTHING IS DISCLOSED WHICH COULD
BE ACCEPTED AS REQUIRING A CONCLUSION DIFFERENT FROM THAT PREVIOUSLY
REACHED IN THE MATTER.
REGARDING YOUR ALLEGATION THAT THE GOVERNMENT MISREPRESENTED THE
MATERIAL SOLD AND DELIVERED TO YOU UNDER THE CONTRACT BECAUSE THE
MATERIAL DID NOT MEET THE SPECIFICATIONS SET FORTH UNDER ITEM NO. 62 OF
THE BID INVITATION, THE RECORD SHOWS THAT THE DESCRIPTION IN THE
INVITATION FOR THE BARRIER MATERIAL UNDER THAT ITEM MADE NO MENTION OF
THE FACT THAT THE MATERIAL CONFORMED TO ANY SPECIFICATION, AND IT IS
ADMINISTRATIVELY REPORTED THAT THE MATERIAL DELIVERED TO YOU DOES
CONFORM TO THE INVITATION DESCRIPTION. CONSEQUENTLY, THERE IS NO BASIS
FOR YOUR ALLEGATION OF MISREPRESENTATION BY THE GOVERNMENT OF THE
MATERIAL IN QUESTION.
MOREOVER, THE RECORD SHOWS THAT YOU DID NOT MAKE ANY INSPECTION OF
THE MATERIAL IN ITEM NO. 62 PRIOR TO SUBMITTING YOUR BID THEREON, AS ALL
PROSPECTIVE BIDDERS WERE CAUTIONED TO DO. ACCORDINGLY, THE FACTS IN THE
INSTANT CASE FALL SQUARELY WITHIN THE PRINCIPLE OF LAW ANNOUNCED BY THE
UNITED STATES COURT OF CLAIMS IN THE CASE OF TRIAD CORPORATION V.
UNITED STATES, 63 C.CLS. 141, WHEREIN THE COURT REJECTED THE
PLAINTIFF'S CLAIM AND STATED, AT PAGE 156, THAT:
"THE PLAINTIFF DID NOT TAKE ADVANTAGE OF ITS RIGHT TO INSPECT BUT
BOUGHT THE LOT WITHOUT INSPECTING IT.
"UNDER THE TERMS OF THE CATALOGUE IT IS DIFFICULT TO PERCEIVE HOW THE
GOVERNMENT COULD HAVE GIVEN PURCHASERS MORE SPECIFIC WARNING THAN IT
DID, THAT THEY BOUGHT AT THEIR RISK WHAT MATERIAL IT HAD AND WAS
OFFERING FOR SALE; THAT IF A PURCHASER WISHED TO PROTECT HIMSELF HE
COULD DO SO BY INSPECTION, FULL OPPORTUNITIES FOR WHICH WERE OFFERED,
AND THAT IF HE FAILED TO INSPECT AND RECEIVED SOMETHING OTHER THAN WHAT
HE THOUGHT HE WAS BUYING HE COULD HAVE NO REDRESS AND COULD NOT CLAIM
ALLOWANCES BY REASON THEREOF. MORE THAN THAT, HE WAS DISTINCTLY TOLD
THAT FAILURE TO INSPECT WOULD NOT BE CONSIDERED AS A GROUND FOR
ADJUSTMENT. IF PLAINTIFF NEGLECTED TO EMBRACE THE OPPORTUNITY OFFERED
IT TO INSPECT AND PURCHASED THE PROPERTY WITHOUT DOING SO, WITH NOTICE
THAT IT BOUGHT AT ITS OWN RISK, IT CREATED BY ITS OWN NEGLIGENCE THE
SITUATION FROM WHICH IT NOW SEEKS RELIEF.'
SEE, ALSO, PAXTON-MITCHELL COMPANY V. UNITED STATES, C.CLS. NO.
109-58, APRIL 8, 1959.
IN VIEW OF THE FOREGOING THE SETTLEMENT DISALLOWING YOUR CLAIM WAS
PROPER, AND IS SUSTAINED.
B-139956, JUL. 9, 1959
TO MR. HARRY L. ARKIN:
REFERENCE IS MADE TO YOUR LETTER DATED JUNE 8, 1959, REQUESTING
REVIEW OF SETTLEMENT DATED MAY 27, 1959, WHICH DISALLOWED YOUR CLAIM FOR
PER DIEM FOR THE PERIOD MARCH 1 TO 6, 1959, AND FOR THE COST OF SHIPPING
YOUR PRIVATELY OWNED AUTOMOBILE FROM BREMERHAVEN, GERMANY, TO NEW YORK,
NEW YORK.
BY ORDERS DATED JANUARY 23, 1959, YOU WERE RELIEVED FROM YOUR
OVERSEAS ASSIGNMENT IN LIBYA, AFRICA, AND DIRECTED TO REPORT TO
FRANKFURT AIR PASSENGER CENTER, RHEIN/MAIN AIR BASE, GERMANY, NOT LATER
THAN 1400 HOURS, FEBRUARY 28, 1959, FOR TRANSPORTATION TO THE UNITED
STATES, FOR RELEASE FROM ACTIVE DUTY. THESE ORDERS FURTHER STATED
"SHIPMENT OF POV VIA SECONDARY PORT OF BREMERHAVEN, GERMANY AUTHORIZED
BY 17AF MESSAGE DM-4 43616, 24 DEC. 58.'
IT APPEARS THAT PRIOR TO MAKING ARRANGEMENTS ON NOVEMBER 30, 1958,
FOR THE PURCHASE OF A NEW CAR IN GERMANY FOR DELIVERY TO YOU EN ROUTE TO
THE UNITED STATES, YOU WERE ASSURED AT YOUR OLD STATION THAT TRANSOCEAN
SHIPMENT OF SUCH VEHICLE FROM BREMERHAVEN, GERMANY, TO THE UNITED STATES
WOULD BE AT GOVERNMENT EXPENSE. WHEN YOU PRESENTED YOUR CAR AT THE PORT
IN GERMANY FOR SHIPMENT THE TRANSPORTATION OFFICER ADVISED YOU THAT HE
COULD NOT ACCEPT IT BECAUSE AIR FORCE LETTER NO. 75-4, DATED JANUARY
14, 1959, ISSUED BY THE DEPARTMENT OF THE AIR FORCE, WASHINGTON, D.C.,
PROHIBITED SHIPMENT OF A PRIVATELY OWNED VEHICLE FROM A PORT OTHER THAN
THE PORT SERVING THE MEMBER'S OLD OVERSEAS STATION. ATTEMPTS WERE MADE
TO OBTAIN SPECIAL PERMISSION TO SHIP YOUR AUTOMOBILE AT GOVERNMENT
EXPENSE AS A RESULT OF WHICH YOUR DEPARTURE DATE WAS EXTENDED TO MARCH
6, 1959, BY SPECIAL ORDERS NO. W-110, DATED FEBRUARY 28, 1959, WITH "6
DAYS PERMISSIVE TDY AT NO EXPENSE TO THE GOVT STARTING ON OR ABOUT 28
FEB 59.' THE REQUEST FOR PERMISSION TO MAKE THE SHIPMENT FOR YOU WAS
EXPRESSLY DENIED BY HEADQUARTERS, UNITED STATES AIR FORCE, WHEREUPON YOU
HAD YOUR CAR SHIPPED AT PERSONAL EXPENSE ON A VESSEL OF FOREIGN
REGISTRY. YOUR CLAIM FOR REIMBURSEMENT OF THE EXPENSES SO INCURRED,
TOGETHER WITH PER DIEM FOR THE DELAY OF SIX DAYS AUTHORIZED INCIDENT TO
YOUR EFFORTS TO OBTAIN SHIPMENT OF YOUR CAR AT PUBLIC EXPENSE, WAS
DENIED BY THE SETTLEMENT OF MAY 27, 1959. IN URGING PAYMENT OF YOUR
CLAIM, YOU CONTEND, IN SUBSTANCE, THAT AIR FORCE LETTER NO. 75-4,
JANUARY 14, 1959, HAS NO APPLICATION BECAUSE IT IS DATED SUBSEQUENT TO
DECEMBER 1959 WHEN YOUR REQUEST FOR SHIPMENT OF A CAR WAS ACTUALLY
APPROVED BY HEADQUARTERS, SEVENTEENTH AIR FORCE, AND BECAUSE FAILURE TO
SHIP YOUR CAR CONTRAVENED A RIGHT VESTED IN YOU BY SECTION 617 OF THE
NATIONAL MILITARY ESTABLISHMENT APPROPRIATION ACT OF 1950, 63 STAT.
1020.
THE STATUTE CITED BY YOU PROVIDES AS FOLLOWS:
"WHEN PERSONNEL OF THE AIR FORCE OR ARMY ARE ORDERED TO MAKE A
PERMANENT CHANGE OF STATION, MOTOR VEHICLES OWNED BY THEM FOR THEIR
PERSONAL USE (NOT TO EXCEED ONE VEHICLE PER PERSON) MAY BE TRANSPORTED
TO THEIR NEW POSTS OF DUTY ON GOVERNMENT-OWNED VESSELS.'
THIS STATUTE IS NOT SELF-EXECUTING BUT REQUIRES THAT IMPLEMENTING
REGULATIONS BE ISSUED BY THE SECRETARIES OF THE SERVICES INVOLVED. THE
AIR FORCE LETTER NO. 75-4, JANUARY 14, 1959, WAS NOT THE INITIAL ACTION
OF THE SECRETARY OF THE AIR FORCE UNDER THIS STATUTE WITH RESPECT TO THE
SHIPMENT OF PRIVATELY OWNED VEHICLES FROM SECONDARY PORTS BUT WAS A
RESTATEMENT OF AIR FORCE LETTER NO. 75-4, TO THE SAME EFFECT, ISSUED
JULY 23, 1958. SINCE THE PROVISION IN YOUR ORDERS OF JANUARY 23, 1959,
PURPORTING TO AUTHORIZE SHIPMENT OF YOUR CAR FROM THE SECONDARY PORT OF
BREMERHAVEN WAS CONTRARY TO THEN CONTROLLING REGULATIONS IT IS WITHOUT
EFFECT. HENCE, IRRESPECTIVE OF THE PROVISIONS OF ANY SUBSEQUENT
REGULATIONS, THERE IS NO LEGAL BASIS UPON WHICH WE MAY ALLOW YOUR CLAIM
FOR REIMBURSEMENT FOR COSTS INCURRED BY YOU FOR TRANSOCEAN SHIPMENT OF
YOUR AUTOMOBILE.
CONCERNING YOUR CLAIM FOR PER DIEM FOR THE PERIOD MARCH 1 TO 6, 1959,
SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813,
PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED,
MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO TRAVEL AND
TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS.
JOINT TRAVEL REGULATIONS PROMULGATED UNDER THAT ACT PROVIDE (PARAGRAPH
3050-1) THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION
ALLOWANCES ONLY WHEN ACTUALLY IN A TRAVEL STATUS WHILE PERFORMING TRAVEL
ON PUBLIC BUSINESS UNDER COMPETENT ORDERS. PARAGRAPH 6453 OF THE SAME
REGULATIONS PROVIDES THAT ORDERS PERMITTING A MEMBER TO TRAVEL AS
DISTINGUISHED FROM ORDERS DIRECTING HIM TO TRAVEL DO NOT ENTITLE HIM TO
EXPENSES OF TRAVEL.
THE ORDERS OF FEBRUARY 28, 1959, AMENDED YOUR ORDERS OF JANUARY 23,
1959, BY EXTENDING YOUR DEPARTURE DATE FOR THE UNITED STATES TO MARCH 6,
1959, SO THAT YOU COULD REMAIN OVERSEAS PENDING RECEIPT OF REPLY TO THE
TRANSPORTATION OFFICER'S REQUEST FOR SPECIAL PERMISSION TO SHIP YOUR
AUTOMOBILE. SINCE THE POSTPONEMENT OF YOUR DEPARTURE DATE WAS ORDERED
FOR YOUR PERSONAL BENEFIT AND NOT FOR THE PURPOSES OF PUBLIC BUSINESS,
PAYMENT OF PER DIEM ALLOWANCE FOR THE PERIOD INVOLVED WOULD NOT BE
AUTHORIZED. CF. 30 COMP. GEN. 19.
B-139995, JUL. 9, 1959
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED JUNE 23, 1959, FROM THE ASSISTANT
SECRETARY OF THE ARMY (LOGISTICS), REQUESTING A DECISION AS TO THE
ACTION TO BE TAKEN CONCERNING AN ERROR MICROMATIC MACHINE CORPORATION
ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. DA 36-039-SC-75817,
DATED JANUARY 23, 1959, IS BASED.
BY INVITATION NO. SC-36-039-59-550-B4, ISSUED DECEMBER 12, 1958, THE
UNITED STATES ARMY SIGNAL SUPPLY AGENCY, PHILADELPHIA, PENNSYLVANIA,
REQUESTED BIDS FOR FURNISHING OF CERTAIN AXLE HANDLES AND AXLES. ITEM
NO. 2, THE ITEM HERE INVOLVED, CALLED FOR BIDS ON 446 AXLES IN
ACCORDANCE WITH SIGNAL CORPS DRAWING NO. SC-D-20714. OF 47 FIRMS
SOLICITED, 16 SUBMITTED BIDS ON ITEM NO. 2. THE BIDS RANGED FROM THE
CONTRACTOR'S LOW BID OF $4.90 EACH, AS FOLLOWS: $5.45, $5.75, $5.95,
$5.99, $6.44, $6.49, $6.93, $7.30, $7.50, $8.30, $9.29, $9.40, $13.40,
$14.30, AND $16 EACH. AWARD WAS MADE ON JANUARY 23, 1959, TO MICROMATIC
FOR THE ENTIRE QUANTITY OF ITEM NO. 2. BY LETTER DATED MARCH 2, 1959,
THE CONTRACTOR ADVISED THE CONTRACTING OFFICER THAT, IN RECHECKING ITS
ESTIMATE, IT CAME UPON A SERIOUS ERROR AND THAT IT HAD MISCALCULATED ITS
MATERIAL REQUIREMENTS. IT ALLEGED THAT IT CALCULATED MATERIAL
REQUIREMENTS AT 5,100 POUNDS AT $0.18 PER POUND AND THEN, INSTEAD OF
EXTENDING TO THE CORRECT AMOUNT OF $920 (ACTUALLY $918), THE EXTENSION
WAS ERRONEOUSLY CALCULATED AT $100.
THE CONTRACTING OFFICER STATES THAT HE HAD NO REASON TO SUSPECT ANY
ERROR IN THE BID AT THE TIME OF AWARD. ERROR WAS NOT APPARENT ON THE
FACE OF THE BID, AND WE DO NOT CONSIDER THE DISCREPANCY BETWEEN THE
COMPANY'S BID AND THE OTHER BIDS RECEIVED GREAT ENOUGH TO CHARGE THE
CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF THE PROBABILITY OF ERROR
IN THE BID. IT FOLLOWS THAT THE ACCEPTANCE OF THE COMPANY'S BID WAS IN
GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED BY IT UNTIL MORE THAN A MONTH
AFTER THE AWARD OF THE CONTRACT--- AND THAT SUCH ACTION CONSUMMATED A
VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND OBLIGATIONS OF THE
PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313;
AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES. 259 U.S.
75.
THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE
TO AN INVITATION TO BID IS UPON THE BIDDER. SEE FRAZIER-DAVIS
CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163.
IF AN ERROR WAS MADE IN THE PREPARATION OF THE BID, AS ALLEGED, IT
MUST BE ATTRIBUTED SOLELY TO THE CONTRACTOR'S NEGLIGENCE AND, SINCE THE
ERROR UPON WHICH THE REQUEST FOR RELIEF IS BASED WAS UNILATERAL, NOT
MUTUAL, AND THE BID WAS ACCEPTED IN GOOD FAITH AND WITHOUT NOTICE OF ANY
DEFECT IN THE BID, THE CONTRACTOR IS NOT ENTITLED TO RELIEF FROM ITS
OBLIGATIONS UNDER THE CONTRACT. SEE OGDEN AND DOUGHERTY V. UNITED
STATES, 102 C.CLS. 249, 259, AND SALIGMAN ET AL. V. UNITED STATES. 56
F.SUPP. 505, 607.
B-129821, JUL. 8, 1959
TO THE ILLINOIS CENTRAL RAILROAD COMPANY:
REFERENCE IS MADE TO YOUR BILL NO. AFR-23911-B, FOR $251.76,
REPRESENTING AN ADDITIONAL AMOUNT CLAIMED TO BE DUE FOR THE
TRANSPORTATION OF A FREIGHT AUTOMOBILE FROM WEST CARTERET, NEW JERSEY,
TO NEW ORLEANS, LOUISIANA, UNDER GOVERNMENT BILL OF LADING NO.
WY-731096, DATED AUGUST 27, 1952.
THE CLAIMED AMOUNT WAS DEDUCTED BY US FROM AMOUNTS OTHERWISE DUE YOU
ON YOUR BILLS AFR-43769 AND AFR-57004, AND YOUR SUPPLEMENTAL BILLING ON
YOUR BILLS AFR-23911-B, IN EFFECT, IN A REQUEST FOR RECONSIDERATION OF
OUR DECISION B-129821, DATED DECEMBER 3, 1957, WHEREIN THE BASIS FOR OUR
ACTION WAS EXPLAINED TO YOU IN DETAIL, AS FOLLOWS:
"UPON FURTHER EXAMINATION OF THE MATTER OF THE ALLOWABLE CHARGES ON
THIS SHIPMENT, WE HAVE CONCLUDED THAT THE CHARGES FOR THIS SERVICE ARE
PROPERLY GOVERNED BY THE INTERSTATE COMMERCE COMMISSION DOCKET 28300
CLASS RATES. ITEM NO. 46510 OF TRUNK LINE TARIFF BUREAU FREIGHT TARIFF
NO. 141-B ESTABLISHES EXCEPTIONS TO THE CLASSIFICATION BASIS OF MINIMUM
WEIGHTS ON FREIGHT AUTOMOBILES, BUT DOES NOT SHOW ANY CLASSIFICATION
RATINGS THEREFOR. THIS TARIFF PROVIDES IN RULE 2 THAT IF NO RATING FOR
AN ARTICLE IS SHOWN IN THE EXCEPTIONS, THE RATING IN THE SOUTHERN
CLASSIFICATION WILL APPLY. BEFORE MAY 30, 1952, SECTION 1 OF TRUNK LINE
TERRITORY TARIFF BUREAU TARIFF NO. 44-I PROVIDED THAT THE NAMED RATE
BASE NUMBERS WOULD ALSO APPLY WHERE THE APPLICABLE RATING IS PUBLISHED
IN THE SOUTHERN CLASSIFICATION AND THE APPLICABLE CARLOAD MINIMUM WEIGHT
IS PUBLISHED IN THE EXCEPTIONS TO THE SOUTHERN CLASSIFICATIONS.
HOWEVER, WITH THE ADVENT OF THE UNIFORM CLASSIFICATION AND THE DOCKET
28300 SCALE OF RATES IN MAY 1952, THIS PROVISION WAS OMITTED IN
SUPPLEMENT NO. 179 OF THE TARIFF. SECTION 1, AS AMENDED, PROVIDED THAT
THE RATE BASE NUMBERS APPLIED:
"WHERE APPLICABLE RATING IS PUBLISHED IN EXCEPTIONS TO SOUTHERN
CLASSIFICATION, TO THE EXTENT PROVIDED FOR IN ITEM NO. 5 OF TARIFF,
SUBJECT TO APPLICABLE RULES AND OTHER PROVISIONS IN EXCEPTIONS TO
SOUTHERN CLASSIFICATION AND TO APPLICABLE RULES AND OTHER PROVISIONS,
EXCEPT RATINGS, IN SOUTHERN CLASSIFICATION.'
SINCE NO RATING IS PUBLISHED FOR FREIGHT AUTOMOBILES IN ITEM NO.
46510 OF THE EXCEPTIONS TO THE SOUTHERN CLASSIFICATIONS FREIGHT TARIFF
NO. 141-B, THE RATE BASE NUMBERS NAMED IN TARIFF NO. 44-I CANNOT BE USED
TO COMPUTE THE APPLICABLE CHARGES. THE CHARGES WILL BE COMPUTED ON THE
BASIS OF THE DOCKET 28300 CLASS RATES NAMED IN TRUNK LINE TERRITORY
TARIFF BUREAU FREIGHT TARIFF NO. E/S 1008, AND AN AMENDED NOTICE OF
OVERPAYMENT REFLECTING IN DETAIL THIS NEW BASIS WILL BE SENT TO YOU.'
THE SUBSTANCE OF THE FOREGOING IS THAT, WITH THE EFFECTIVE DATE OF
SUPPLEMENT NO. 179 TO TRUNK LINE TERRITORY TARIFF BUREAU TARIFF NO.
44-I, THE RATES IN THAT TARIFF APPLIED ONLY WHEN THE APPLICABLE RATING
WAS NAMED IN EXCEPTIONS TO THE SOUTHERN CLASSIFICATION.
THE DEDUCTIONS AGGREGATING $251.76, FROM YOUR BILLINGS ON THIS
SHIPMENT APPEAR TO HAVE BEEN COMPUTED IN ACCORDANCE WITH THE TARIFF
DETERMINED TO BE PROPER FOR APPLICATION IN OUR DECISION OF DECEMBER 3,
1957, AND SINCE YOU HAVE PRESENTED NO NEW OR MATERIAL EVIDENCE SUCH AS
WOULD JUSTIFY A MODIFICATION OR REVERSAL OF OUR PRIOR ACTION IN THIS
MATTER, THE SAID DECISION, AND OUR
B-133439, JUL. 8, 1959
TO T.I.M.E., INCORPORATED:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 12, 1959, WITH
ENCLOSURE, REQUESTING RECONSIDERATION OF OUR SETTLEMENT CERTIFICATE (IN
CLAIM NO. TK 648818), DATED JANUARY 29, 1959, WHICH DISALLOWED YOUR
CLAIM FOR $733.82, PER YOUR BILL NO. 4-1758A, FOR ADDITIONAL FREIGHT
CHARGES IN CONNECTION WITH THE TRANSPORTATION OF A QUANTITY OF ALUMINUM
CONTAINERS FROM PANAMA CITY, FLORIDA, TO TUCSON, ARIZONA, UNDER
GOVERNMENT BILL OF LADING NO. AF 7742582, ISSUED JANUARY 31, 1958.
OUR RECORDS SHOW THAT YOU ORIGINALLY WERE PAID $1,470.46, COMPUTED
UPON THE BASIS OF A CLASS 200 RATE OF $15.71 PER 100 POUNDS, AS APPLIED
TO THE TOTAL WEIGHT OF THE SHIPMENT, 9,360 POUNDS. THEREAFTER, BY YOUR
SUPPLEMENTAL BILL NO. 4-1758A, YOU CLAIMED AN ADDITIONAL AMOUNT OF
$733.82, OR A TOTAL OF $2,204.28 ON THE SHIPMENT, BASED UPON THE CLASS
300 RATE OF $23.55 PER 100 POUNDS, AT ACTUAL WEIGHT, PER ITEM 19980-A,
SUPPLEMENT NO. 16 TO NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-3,
APPLICABLE TO THE ITEM: "CARRIERS, SHIPPING * * * CONTAINERS, NOI, BULK
COMMODITY SHIPPING, ALUMINUM, SU.'
IN OUR AUDIT OF THE PAYMENT VOUCHER, OUR TRANSPORTATION DIVISION
DETERMINED THAT YOU SHOULD HAVE BEEN PAID ONLY $625.25 ON THE SHIPMENT,
BASED UPON A CLASS 85 RATE OF$6.68 PER 100 POUNDS, PER ITEM 12610 OF
NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-3, APPLICABLE TO: "BOXES OR
CRATES * * * AMMUNITION OR SMOKELESS POWDER SHIPPING, NOI.' ACCORDINGLY,
ON FEBRUARY 2, 1959, WE ISSUED OUR FORM NO. 1003 STATING AN OVERPAYMENT
TO YOU OF $845.21.
BY LETTER DATED MARCH 12, 1959, YOU PROTESTED OUR ACTION, CONTENDING,
IN SUBSTANCE, THAT ITEM 19980, SUPPLEMENT NO. 16 TO NATIONAL MOTOR
FREIGHT CLASSIFICATION NO. A-3, NAMING A CLASS 300 RATING ON BULK
COMMODITY SHIPPING CONTAINERS, ALUMINUM, CONTAINS A MORE SPECIFIC
DESCRIPTION OF THE TRANSPORTED COMMODITY THAN DOES ITEM 12610 THEREOF,
AND THAT, UPON THE BASIS OF THE RATE ALLOWED BY US, YOU WOULD BE EARNING
ONLY ?24 PER TRUCK MILE FOR THE CAPACITY LOAD IN YOUR FIRST HAULING
VEHICLE. YOU ALSO STATE THAT 8,640 POUNDS OF THIS COMMODITY FILL A
35-FOOT TRAILER TO CAPACITY AND THAT 720 POUNDS FOLLOWED IN ANOTHER
TRAILER.
INFORMATION RECEIVED FROM THE ADMINISTRATIVE AGENCY INDICATES THAT
THIS SHIPMENT CONSISTED OF AN ALUMINUM SHIPPING CASE, MANUFACTURED AND
PROCURED FOR THE PURPOSE OF TRANSPORTING AND STORING MISSILE COMPONENTS.
THE CASE WAS SHIPPED IN AN OUTER CONTAINER AND WAS 94.75 INCHES IN
LENGTH, 24 INCHES IN HEIGHT, AND 24 INCHES IN WIDTH. THE BILL OF LADING
WEIGHT INDICATES THAT EACH PACKAGE WEIGHED 240 POUNDS. THE GROSS CUBIC
MEASUREMENT OF EACH CASE IS SAID TO BE 31.5 CUBIC FEET. SINCE THE TOTAL
CUBIC MEASUREMENT OF THE 39 CASES HERE SHIPPED IS APPROXIMATELY 1,230
CUBIC FEET, IT IS NOT UNDERSTOOD HOW THE SHIPMENT REQUIRED THE USE OF
MORE THAN ONE TRAILER, INASMUCH AS THIS COMMODITY DOES NOT SEEM TO BE
SUCH SIZE OR SHAPE AS TO PRESENT AN UNUSUAL LOADING PROBLEM.
WITH REGARD TO YOUR CONTENTION THAT THIS COMMODITY SHOULD BE
DESCRIBED AS "CONTAINERS, NOI, BULK COMMODITY SHIPPING, ALUMINUM," THAT
DESCRIPTION SEEMS TO COVER A COMMODITY SUBSTANTIALLY DIFFERENT FROM THAT
UNDER PRESENT CONSIDERATION. THE ALUMINUM CASE TRANSPORTED BY YOU, HAS
A FULL LENGTH REMOVABLE COVER, AND HAS BUILT-IN CRADLING COVERED WITH
CUSHIONING MATERIAL. SUCH A CONTAINER CAN HARDLY BE SAID TO BE
ANALOGOUS TO A CONTAINER USED FOR SHIPPING BULK COMMODITIES.
AFTER FURTHER CONSIDERATION OF THE NATURE OF THIS ALUMINUM CASE, WE
HAVE CONCLUDED THAT THE CLASSIFICATION DESCRIPTIONS OF "ALUMINUM
ARTICLES, NOI," SUBJECT TO A LESS-THAN-TRUCKLOAD RATING OF CLASS 100,
PER ITEM 3290 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-3,
MF-I.C.C. NO. 8, MORE PRECISELY DESCRIBES THE ARTICLE. IT IS OUR
UNDERSTANDING THAT THE MILITARY TRAFFIC MANAGEMENT AGENCY AND THE
AIRCRAFT INDUSTRIES ASSOCIATION ARE IN ACCORD WITH THIS VIEW.
ACCORDINGLY, OUR SETTLEMENT WHICH DISALLOWED YOUR BILL NO. 4-1758A IS
SUSTAINED, AND THE REQUEST FOR REFUND OF OVERPAYMENT WILL BE AMENDED TO
REFLECT THE VIEWS STATED ABOVE.
B-137471, JUL. 8, 1959
TO WHEELER AND WHEELER:
REFERENCE IS MADE TO YOUR LETTER DATED MAY 19, 1959, SUBMITTING A
CLAIM IN BEHALF OF COASTAL CARGO CO., INC., FOR $158,530.89 ALLEGED TO
BE DUE THE CLAIMANT AS A RESULT OF TERMINATION OF CONTRACT AF 11/626/75.
THE CONTRACT IN QUESTION WAS AWARDED TO THE CLAIMANT ON SEPTEMBER 16,
1958, AND COVERED THE TRANSPORTATION OF 500 AIR PASSENGERS PER MONTH, AT
A PRICE OF $222.90 PER PASSENGER, FROM CHARLESTON AIR FORCE BASE TO
NOURASSEUR, AND RETURN, DURING THE PERIOD OCTOBER 1, 1958, THROUGH
SEPTEMBER 30, 1959. PURSUANT TO ADVICE FROM THIS OFFICE DATED DECEMBER
9, 1958, B-137471, THE CONTRACT AWARD TO THE CLAIMANT WAS CANCELLED BY
THE DEPARTMENT OF THE AIR FORCE ON DECEMBER 18, 1958, AND AN AWARD FOR
THE REMAINING PORTION OF THE SERVICES COVERED BY CONTRACT AF 11/626/75
WAS MADE TO LOS ANGELES AIR SERVICE, INC., THE LOWEST RESPONSIBLE
BIDDER, AT A PRICE OF $215.08 PER PASSENGER.
AS SET OUT IN A STATEMENT BY THE CLAIMANT'S CERTIFIED PUBLIC
ACCOUNTANT THE CLAIM SUBMITTED CONSISTS OF LOSSES IN THE AMOUNT OF
$55,994.61 WHICH THE CLAIMANT INCURRED IN PERFORMING 19 FLIGHTS BETWEEN
THE DATE OF AWARD AND THE DATE OF CANCELLATION, PLUS LOSSES OF
$74,122.97 WHICH OCCURRED DURING JANUARY, FEBRUARY, AND MARCH, 1959,
BECAUSE THE CLAIMANT'S OBLIGATIONS UNDER CONTRACT AF 11/626/75 PRECLUDED
THE ADVANCE SOLICITATION OF OTHER CONTRACTS TO BE PERFORMED DURING THIS
PERIOD. ADDITIONALLY, THE CLAIM INCLUDES AN AMOUNT OF $28,413.31
REPRESENTING AN UNREALIZED PROFIT OF 8 PERCENT ON $355,166.41, THE
REPORTED COST TO THE CLAIMANT OF PERFORMING THE 19 FLIGHTS PRIOR TO
DECEMBER 18, 1958, WHICH ARE MENTIONED ABOVE.
SINCE YOUR LETTER FAILS TO SET OUT A SPECIFIC LEGAL BASIS UPON WHICH
THE CLAIM IS BASED IT WOULD APPEAR APPROPRIATE, BEFORE CONSIDERING THE
MERITS OF THE CLAIM, TO ADVISE YOU THAT THIS OFFICE IS WITHOUT
JURISDICTION TO AUTHORIZE THE PAYMENT OF CLAIMS WHICH ARE BASED UPON
EQUITABLE GROUNDS, AND WHERE THE VALIDITY OF A CLAIM, AS A MATTER OF
LAW, IS DOUBTFUL, OR WHERE SUBSTANTIAL DEFENSES IN LAW WOULD APPEAR TO
EXIST, WE ARE REQUIRED TO DISALLOW PAYMENT OF SUCH CLAIMS. LONGWILL V.
UNITED STATES, 17 C.CLS. 288, 291.
AS INDICATED IN OUR LETTER OF DECEMBER 8, 1958, DIRECTING THE
SECRETARY OF THE AIR FORCE TO CANCEL THE AWARD MADE TO THE CLAIMANT,
SUCH CANCELLATION WAS BASED UPON A DETERMINATION THAT THE CONTRACTING
OFFICER WAS REQUIRED TO MAKE THE AWARD TO THE LOWEST RESPONSIBLE BIDDER
AND THAT HE WAS WITHOUT AUTHORITY, UNDER APPLICABLE LAW AND REGULATIONS,
TO MAKE THE AWARD TO THE CLAIMANT. THE LAW IS SETTLED THAT FEDERAL
CONTRACTING OFFICERS, IN EXERCISING POWERS CONFERRED UPON THEM BY
STATUTE OR REGULATION, ARE BOUND TO FOLLOW PRESCRIBED PROCEDURES, AND
ACTS OF SUCH OFFICERS IN EXCESS OF THEIR AUTHORITY ARE VOID AND DO NOT
BIND OR ESTOP THE GOVERNMENT. 43 AM.JUR., PUBLIC OFFICERS, 249, 256;
54 AM.JUR., UNITED STATES, 92; THE FLOYD ACCEPTANCES, 74 U.S. 666;
WISCONSIN CENTRAL RAILROAD CO. V. UNITED STATES, 164 U.S. 190; UTAH
POWER AND LIGHT CO. V. UNITED STATES, 243 U.S. 389; UNITED STATES V.
CITY AND COUNTY OF SAN FRANCISCO, 310 U.S. 16; UNITED STATES V.
AMERICAN SALES CORP., 27 F.2D 389; THE GOVERNMENT OF THE VIRGIN ISLANDS
V. GORDON AND OTHERS, 244 F.2D 818; LENDERS CASE, 7 C.CLS. 530;
SCHNEIDER V. UNITED STATES, 19 C.CLS. 547; BARNES ET AL. V. DISTRICT
OF COLUMBIA, 22 C.CLS. 366; CONSOLIDATED SUPPLY CO. V. UNITED STATES,
59 C.CLS. 197.
IN VIEW OF THE ABOVE CITED AUTHORITIES IT IS OUR OPINION THAT THE
AGREEMENT SET OUT IN CONTRACT AF 11/626/75 WAS INVALID AND UNENFORCEABLE
FROM ITS INCEPTION. SINCE NO VALID OR ENFORCEABLE AGREEMENT EXISTED, IT
FOLLOWS THAT THERE CAN BE NO VALID OR ENFORCEABLE CLAIM FOR DAMAGES
BASED UPON BREACH OR TERMINATION OF THE CONTRACT IN QUESTION. CORBIN ON
CONTRACTS, SECTION 993.
UNDER THE CIRCUMSTANCES THE ONLY REMAINING QUESTION FOR CONSIDERATION
WOULD APPEAR TO BE THE EXTENT OF THE GOVERNMENT'S LIABILITY, IF ANY,
UNDER THE DOCTRINE OF QUANTUM MERUIT FOR THE SERVICES RENDERED BY THE
CLAIMANT. WILLISTON ON CONTRACTS, SECTIONS 1770 AND 1786A.
THE AMOUNT OF RECOVERY PERMITTED ON THE BASIS OF QUANTUM MERUIT FOR
SERVICES FURNISHED UNDER AN INVALID OR UNENFORCEABLE CONTRACT IS THE
REASONABLE VALUE OF THE SERVICES. 98 C.J.S. 825; 58 AM.JUR., WORK AND
LABOR, 35. AND THE LIMIT OF RECOVERY UNDER SUCH AGREEMENT HAS BEEN
VARIOUSLY SAID TO BE THE CONTRACT PRICE, THE VALUE OF THE SERVICES
REGARDLESS OF THE CONTRACT PRICE, AND THE BENEFIT RECEIVED BY THE
RECIPIENT OF THE SERVICE. 58 AM.JUR., WORK AND LABOR, 35. WHILE THE
CONTRACT PRICE IS THEREFORE NOT CONTROLLING IN DETERMINING THE
REASONABLE VALUE OF SERVICES FURNISHED, IT HAS BEEN HELD THAT WHERE THE
SUBJECT MATTER IS A PROPER SUBJECT OF CONTRACT AND THE SERVICE WAS
PERFORMED IN GOOD FAITH, THE RIGHT OF RECOVERY IN QUANTUM MERUIT EXISTS
UP TO THE LIMIT, BUT NOT BEYOND, THE AMOUNT WHICH WOULD HAVE BEEN
RECOVERABLE UNDER A VALID CONTRACT COVERING THE SAME SUBJECT MATTER. 99
C.J.S. 825. AND WHERE THE CONTRACT HAS BEEN PARTIALLY PERFORMED THE ONE
FURNISHING THE SERVICES IS NOT ENTITLED TO RECOVER AT THE CONTRACT RATE
WHEN SUCH RATE IS GREATER THAN THE REASONABLE VALUE OF THE SERVICES
RENDERED, NOR MAY HE RECOVER MORE WHERE THE REASONABLE VALUE OF THE
SERVICES HAS ALREADY BEEN PAID. 71 C.J. 165-166. THE REASONABLE VALUE
OF SERVICES FURNISHED UNDER AN INVALID OR UNENFORCEABLE CONTRACT IS NOT
THE LOST FRUITS OF THE CONTRACT OR THE DAMAGES SUSTAINED BY THE
CONTRACTOR, 98 C.J.S. 825, AND WHERE THE SUM CALLED FOR IN AN INVALID OR
UNENFORCEABLE CONTRACT HAS BEEN PAID AND RECEIVED, NO MORE CAN BE
RECOVERED IN AN ACTION BASED UPON QUANTUM MERUIT. 58 AM.JUR., WORK AND
LABOR, 35; 76 ALR 1412-1413.
UNDER THE PRINCIPLES SET OUT ABOVE THERE WOULD APPEAR TO BE
CONSIDERABLE AUTHORITY TO THE EFFECT THAT BOTH THE REASONABLE VALUE OF
THE SERVICES PERFORMED BY THE CLAIMANT AND THE VALUE OF THE BENEFITS
RECEIVED BY THE GOVERNMENT FROM SUCH SERVICES SHOULD BE COMPUTED AT THE
RATE OF $215.08 PER PASSENGER, AS SET OUT IN THE LOW BID SUBMITTED BY
LOS ANGELES AIR SERVICE, INC., AND AT WHICH RATE THE GOVERNMENT HAS BEEN
RECEIVING SIMILAR SERVICES FROM THAT COMPANY SINCE THE AWARD TO THE
CLAIMANT WAS CANCELLED. BE THAT AS IT MAY, WE UNDERSTAND THAT THE SUM
OF $299,171.80 RECEIVED BY THE CLAIMANT REPRESENTS FULL PAYMENT AT THE
CONTRACT PRICE OF $222.90 PER PASSENGER FOR THE NINETEEN FLIGHTS
PERFORMED, AND IT IS OUR OPINION THAT THE AUTHORITIES CITED ABOVE
CLEARLY INDICATE THERE IS NO LEGAL LIABILITY ON THE PART OF THE
GOVERNMENT TO PAY THE CLAIMANT ANY AMOUNT IN ADDITION THERETO.
IN THE ABSENCE OF SUCH LIABILITY THE GENERAL ACCOUNTING OFFICE IS
WITHOUT JURISDICTION TO AUTHORIZE ADDITIONAL PAYMENT, AND PAYMENT OF THE
CLAIM MUST THEREFORE BE DENIED.
B-139728, JUL. 8, 1959
TO THE UNION PACIFIC RAILROAD COMPANY:
REFERENCE IS MADE TO THE REQUEST IN YOUR LETTER OF MAY 22, 1959, FILE
GTA 50234, FOR REVIEW OF THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM (OUR
FILE TK-661-611) FOR $253.89 ADDITIONAL FREIGHT CHARGES ON A SHIPMENT OF
DRY EDIBLE BEANS COVERED BY BILL OF LADING A-3364852, NOVEMBER 8, 1943.
THE PAYMENT RECORD SHOWS THAT THE SHIPMENT MOVED IN CAR CNW 73104
FROM THE TRINIDAD BEAN AND ELEVATOR COMPANY AT BRUSH, COLORADO, TO THE
WAR SHIPPING ADMINISTRATION, COMMERCIAL DISPATCH CORPORATION, AT
PORTLAND, OREGON, FOR EXPORTATION TO THE UNION OF SOVIET SOCIALIST
REPUBLICS. THE COMMERCIAL BILL OF LADING UNDER WHICH THE SHIPMENT WAS
TENDERED TO THE CARRIER AT BRUSH, COLORADO, IS ANNOTATED TO SHOW THE
PURCHASE ORDER AND CONTRACT PROCUREMENT NUMBERS, THE EXPORT ODT PERMIT
NUMBER, AND THE LEND-LEASE REQUISITION NUMBER AND BEARS A NOTATION THAT
THE BILL OF LADING WAS TO BE EXCHANGED AT DESTINATION FOR A GOVERNMENT
BILL OF LADING.
FOR THE SERVICES PERFORMED, YOUR COMPANY ORIGINALLY CLAIMED CHARGES
OF $848.78, WHICH INCLUDED A RECONSIGNING CHARGE OF $2.48. THE FINANCE
OFFICE ELIMINATED THE RECONSIGNING CHARGE FROM YOUR BILL AND PAID YOU
$846.30 ($848.78 LESS $2.48), COMPUTED BY THE APPLICATION OF A GROSS
RATE OF $1.05 PER HUNDRED POUNDS ON THE 80,600 POUNDS CONTAINED IN THE
SHIPMENT. THE AMOUNT OF $846.30 SO PAID WAS LATER REDUCED TO $822.12 BY
A REFUND OF $24.18 TO COVER THE PORT ALLOWANCE. THE LOWER CHARGES OF
$592.41 COMPUTED IN THE AUDIT HERE WERE BASED ON A NET RATE OF 73 1/2
CENTS PER HUNDRED POUNDS, WHICH WAS THE REMAINDER OF THE GROSS RATE OF
$1.05 PER HUNDRED POUNDS NAMED IN TRANS-CONTINENTAL FREIGHT BUREAU
TARIFF 4-U, I.C.C. 1499, AFTER THE DEDUCTION OF THE APPLICABLE
LAND-GRANT. THE PORT ALLOWANCE WAS NOT CONSIDERED SPECIFICALLY IN OUR
AUDIT HERE. OUR RECOVERY BY DEDUCTION OF $253.89 FROM YOUR BILL NO.
W-281127 REDUCED THE PAYMENT TO YOU TO $568.23. THIS CHARGE APPEARS
PROPER, BEING BASED ON THE LAND-GRANT-REDUCED RATE OF 73 1/2 CENTS, LESS
THE PORT ALLOWANCE.
WHILE THE SPECIFIC REASON FOR YOUR ASSERTION THAT YOUR SUPPLEMENTAL
BILL DID NOT RECEIVE DUE CONSIDERATION IS NOT DISCLOSED IN YOUR LETTER,
IT APPEARS FROM THE INFORMATION OF RECORD TO BE PREMISED UPON A
CONTENTION THAT THE USE OF LAND GRANT IN OUR SETTLEMENT BASIS WAS
IMPROPER BECAUSE THE PROPERTY WAS NOT MILITARY OR NAVAL PROPERTY OF THE
UNITED STATES MOVING FOR MILITARY OR NAVAL USE. LEND-LEASE REQUISITION
R-6556 SHOWS THAT THIS SHIPMENT COMPRISED PART OF 30,000 NET TONS OF
DRIED BEANS REQUISITIONED FOR SHIPMENT OVERSEAS FOR THE USE OF THE
RUSSIAN MILITARY FORCES.
IN THIS CONNECTION, ATTENTION IS INVITED TO THE NINTH CIRCUIT COURT
OF APPEALS DECISION IN UNITED STATES V. SPOKANE, PORTLAND AND SEATTLE
RAILWAY COMPANY, 261 F.2D 681, WHEREIN THE COURT, AFTER REITERATING THE
GENERAL PRINCIPLE OF TRANSPORTATION LAW THAT TARIFF RATES ARE
DETERMINABLE AT THE TIME THE SHIPMENT IS MADE, FOUND THAT WITHIN THE
MEANING OF SECTION 321 (A) OF THE TRANSPORTATION ACT OF 1940, 54 STAT.
896, 954, 49 U.S.C.A. 65, THE PROPERTY THERE INVOLVED MOVED FOR MILITARY
OR NAVAL USE BECAUSE IT WAS SO INTENDED AT THE TIME THE SHIPMENT WAS
MADE FROM THE POINT OF ORIGIN. MILITARY USE HAS BEEN DEFINED AS
COVERING MUCH MORE THAN PROPERTY CONSUMED BY THE ARMED FORCES OF THE
UNITED STATES OR BY THEIR ADJUSTMENTS. NORTHERN PACIFIC RAILWAY V.
UNITED STATES, 330 U.S. 248, 254. IN FACT, THE MILITARY USE NEED NOT BE
BY TROOPS OF THE UNITED STATES. SEE SOUTHERN PACIFIC COMPANY V. THE
UNITED STATES, 107 C.CLS. 167, WHEREIN IT WAS HELD THAT LAND-GRANT
DEDUCTIONS WERE APPLICABLE IN COMPUTING THE CHARGES ON SHIPMENTS OF
TRUCKS DESTINED FOR ULTIMATE USE BY THE CHINESE ARMY.
ACCORDINGLY, THE REDUCTION MADE FOR LAND GRANT FROM THE APPLICABLE
COMMERCIAL CHARGES APPEARS PROPER IN COMPUTING THE CHARGES APPLICABLE ON
THIS SHIPMENT. THEREFORE, THE SETTLEMENT IS SUSTAINED.
B-139895, JUL. 8, 1959
TO THE WISE CONTRACTING COMPANY:
REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 11, 1959, PROTESTING
AGAINST THE CONSIDERATION OF A BID SUBMITTED BY THE VIRGINIA ENGINEERING
COMPANY, INC., NEWPORT NEWS, VIRGINIA, FOR THE CONSTRUCTION OF A UNITED
STATES POST OFFICE BUILDING AT PORTSMOUTH, VIRGINIA.
WE ADVISED YOU UNDER DATE OF JUNE 22, 1959, THAT A REQUEST FOR A
REPORT ON THE MATTER OF YOUR PROTEST HAD BEEN FORWARDED TO THE
ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION. IN RESPONSE TO SUCH
REQUEST THERE HAS BEEN RECEIVED FROM THE ACTING COMMISSIONER, PUBLIC
BUILDINGS SERVICE, A REPORT DATED JULY 2, 1959, WHICH IS IN PERTINENT
PART AS FOLLOWS:
"BY INVITATION DATED APRIL 28, 1959, BIDS WERE INVITED FOR THIS
PROJECT, TO BE RECEIVED UNTIL 2 P.M., EASTERN DAYLIGHT TIME, JUNE 2,
1959. A COPY OF THE INVITATION IS ENCLOSED. BY TELEGRAM DATED MAY 28,
1959, CONFIRMED BY ADDENDUM NO. 3, DATED JUNE 1, 1959, THE BID OPENING
WAS POSTPONED TO 2 P.M., EASTERN DAYLIGHT TIME, JUNE 9, 1959. A COPY OF
ADDENDUM NO. 3 IS ENCLOSED.
"AT THE APPOINTED TIME, SIX BIDS HAD BEEN RECEIVED, AT 1:35 P.M.,
EASTERN DAYLIGHT TIME, JUNE 9, 1959, A REPRESENTATIVE OF THE VIRGINIA
ENGINEERING COMPANY, INC., APPEARED AT THE BID ROOM AND SUBMITTED A
"MODIFICATION TO MAILED BID FOR CONSTRUCTION OF UNITED STATES POST
OFFICE, ETC., PORTSMOUTH, VIRGINIA.' THIS MODIFICATION WAS RECEIVED AND
APPROPRIATELY TIME-STAMPED. THE BIDS RECEIVED PRIOR TO THE TIME SET FOR
BID OPENING WERE PUBLICLY OPENED AND READ. HOWEVER, SINCE NO BID HAD
BEEN RECEIVED FROM THE VIRGINIA ENGINEERING COMPANY, INC., THE ENVELOPE
CONTAINING THE MODIFICATION WAS NOT OPENED, BUT WAS HELD FOR
CONSIDERATION IN THE EVENT THAT AN ACCEPTABLE LATE BID WAS RECEIVED FROM
THAT COMPANY.
"PARAGRAPH 7 OF THE INSTRUCTIONS TO BIDDERS, WHICH ACCOMPANIED THE
INVITATION FOR BIDS, READS IN PART AS FOLLOWS:
"RECEIPT AND OPENING OF BIDS. (A) BIDS WILL BE SUBMITTED PRIOR TO
THE TIME FIXED IN THE INVITATION FOR BIDS. BIDS RECEIVED AFTER THE TIME
SO FIXED ARE LATE BIDS; AND THE EXACT DATE AND HOUR OF MAILING SUCH
BIDS, AS SHOWN BY THE CANCELLATION STAMP OR BY THE STAMP OF AN APPROVED
METERING DEVICE WILL BE RECORDED. SUCH LATE BIDS WILL BE CONSIDERED,
PROVIDED, THEY ARE RECEIVED BEFORE THE AWARD HAS BEEN MADE, AND PROVIDED
FURTHER, THE FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO A DELAY IN THE
MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OTHERWISE LATE BIDS
WILL NOT BE CONSIDERED BUT WILL BE HELD UNOPENED UNTIL THE TIME OF AWARD
AND THEN RETURNED TO THE BIDDER, UNLESS OTHER DISPOSITION IS REQUESTED
OR AGREED TO BY THE BIDDER.
"ON JUNE 10, 1959, AT 10:16 A.M., AN ENVELOPE BEARING THE RETURN
ADDRESS OF THE VIRGINIA ENGINEERING COMPANY, INC., WAS RECEIVED IN THE
BID OPENING ROOM MARKED "BID FOR CONSTRUCTION (EXCEPT PASSENGER
ELEVATOR) OF THE UNITED STATES POST OFFICE, ETC., AT PORTSMOUTH,
VIRGINIA, TO BE OPENED AT 2 P.M., EASTERN DAYLIGHT TIME, JUNE 9, 1959.'
THE ENVELOPE ALSO HAD AFFIXED TO IT A STICKER GIVING INVITATION NUMBER,
DATE OF OPENING, TIME OF OPENING, AND THE PROJECT DESIGNATION.
"THE ENVELOPE WAS MARKED "AIR MAIL, SPECIAL DELIVERY" AND WAS STAMPED
AS HAVING BEEN MAILED AT NEWPORT NEWS, VIRGINIA, AT 12 NOON, JUNE 8,
1959. ON THE REVERSE SIDE OF THE ENVELOPE ANOTHER STAMP APPEARS,
SHOWING THAT THE ENVELOPE WAS RECEIVED IN WASHINGTON, D.C. AT 9 P.M.,
JUNE 8, 1959, FOR SPECIAL DELIVERY. THE FRONT OF THE ENVELOPE CONTAINS
ANOTHER STAMP SHOWING THAT IT WAS RECEIVED BY GSA, MAIL ROOM, AT 7 A.M.,
ON JUNE 10, 1959. THE ORIGINAL ENVELOPE IS ENCLOSED.
"AT APPROXIMATELY 10 A.M. ON THE SAME DAY A REPRESENTATIVE OF THE
PUBLIC BUILDINGS SERVICE, WHICH SOLICITED THE BIDS, CALLED MR. EDWARDS
OF THE POST OFFICE DEPARTMENT AND WAS ADVISED BY HIM THAT THE BID SHOULD
HAVE BEEN RECEIVED IN THE MAIN POST OFFICE IN WASHINGTON, D.C. AT ANY
TIME ON JUNE 8, 1959, AND SHOULD HAVE BEEN DELIVERED TO THE REGIONAL
OFFICE BUILDING, WHERE THE BIDS WERE OPENED, ON THE FIRST MAIL ON JUNE
9, 1959. SINCE IT WAS APPARENT THAT THE LATENESS OF THE BID WAS DUE
SOLELY TO DELAYS IN THE MAIL, THE PUBLIC BUILDINGS SERVICE PROCEEDED TO
OPEN THE BID AND THE MODIFICATION THEREOF. COPIES OF THE BID AND THE
MODIFICATION AND A TABULATION OF ALL BIDS, INCLUDING THE LATE BID AND
THE MODIFICATION THEREOF ARE ENCLOSED.
"ON JUNE 15, 1959, A LETTER WAS WRITTEN TO THE ACTING POSTMASTER
ASKING FOR CONFIRMATION OF THE VERBAL INFORMATION RECEIVED ON JUNE 10,
1959 AS TO THE TIME THAT THE BID OF THE VIRGINIA ENGINEERING COMPANY,
INC. SHOULD HAVE BEEN RECEIVED. BY MEMORANDUM DATED JUNE 16, 1959, FROM
THE ACTING POSTMASTER, HE ADVISED AS FOLLOWS:
" "IN ACCORDANCE WITH AVAILABLE SCHEDULES, SUBJECT BID, IN THE NORMAL
COURSE, WOULD BE DUE TO ARRIVE AT THIS OFFICE AT 2:40 A.M. ON JUNE 9,
1959, AND DELIVERY WOULD BE EFFECTED ON THE MORNING OF THAT DATE.'
"COPIES OF THESE TWO COMMUNICATIONS ARE ALSO ENCLOSED.
"THE PROTEST OF THE WISE CONTRACTING COMPANY, INC. WHICH YOU RECEIVED
IS BASED ON THE FACT THAT THE VIRGINIA ENGINEERING COMPANY'S BID WAS
RECEIVED AT 7 A.M. JUNE 10, 1959, WHEREAS THE BID OPENING TIME WAS 2
P.M. JUNE 9, 1959.
"BASED ON THE FACTS STATED ABOVE, NAMELY THAT THE BID WAS MAILED FROM
NEWPORT NEWS, VIRGINIA, AIR MAIL, SPECIAL DELIVERY, AT 12 NOON ON JUNE
8, 1959, AND WAS RECEIVED IN THE WASHINGTON POST OFFICE AT 9 P.M. ON THE
SAME DATE, PLUS THE VERBAL AND WRITTEN STATEMENTS FROM THE POST OFFICE
DEPARTMENT, WE CAN ONLY CONCLUDE THAT THE LATENESS IN THE RECEIPT OF THE
BID WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT
RESPONSIBLE.'
THE ONLY QUESTION FOR DETERMINATION IS WHETHER THE EVIDENCE OF RECORD
ESTABLISHES THAT THE FAILURE OF THE SUBJECT BID TO ARRIVE ON TIME WAS
DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT
RESPONSIBLE. AS STATED IN THE FOREGOING REPORT THE TIME STAMPS
APPEARING ON THE ENVELOPE CONTAINING THE BID SHOWS THAT THE PARCEL
ARRIVED IN THE WASHINGTON POST OFFICE AT 9 P.M., JUNE 8, 1959; THAT IT
WAS FIRST RECEIVED IN THE GENERAL SERVICES ADMINISTRATION AT 7 A.M.,
JUNE 10, 1959; AND THAT IT WAS STAMPED IN AT THE BID OPENING ROOM OF
THAT AGENCY AT 10:16 A.M. ON JUNE 10, 1959. WE FIND NO BASIS FOR
QUESTIONING THE CORRECTNESS OR REASONABLENESS OF THE QUOTED STATEMENT OF
THE ACTING POSTMASTER AT WASHINGTON, D.C., THAT IN THE NORMAL COURSE OF
THE MAIL SERVICE THE PARCEL INVOLVED WOULD HAVE BEEN DELIVERED TO THE
ADDRESSEE ON THE MORNING OF JUNE 9, 1959. ACCORDINGLY, THERE DOES NOT
APPEAR TO BE ANY DOUBT THAT THE DELAY OF ONE DAY IN THE DELIVERY OF THE
BID SUBMITTED BY VIRGINIA ENGINEERING COMPANY, INC., WAS DUE TO THE
FAILURE OF PROPER HANDLING OF THE ENVELOPE BY THE POSTAL SERVICE AND NOT
IN ANY WAY ATTRIBUTABLE TO THE LOW BIDDER.
IN VIEW THEREOF WE CONCUR WITH THE FINDINGS AND CONCLUSION OF THE
ADMINISTRATIVE OFFICE TO THE
B-136334, JUL. 7, 1959
TO THE COOLEY ELECTRIC MANUFACTURING CORPORATION:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 28, 1958, AND
SUBSEQUENT CORRESPONDENCE, REQUESTING RECONSIDERATION OF OUR DECISION OF
AUGUST 25, 1958, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR
INCREASED COSTS OCCASIONED BY CHANGED PACKING REQUIREMENTS UNDER
CONTRACT NO. AF 09/603/-32330, AS AMENDED.
AS STATED IN OUR LETTER OF OCTOBER 1, 1958, TO YOU, WE INSTRUCTED THE
CLAIMS DIVISION OF OUR OFFICE TO DETERMINE THE EXTENT THE EXCESS COSTS
RESULTING FROM THE SHIPPING INSTRUCTIONS WHICH CHANGED THE CONTRACT
PACKING REQUIREMENTS AND TO ALLOW SUCH AMOUNT AS MAY BE APPROPRIATE
UNDER THE CIRCUMSTANCES. SUCH FURTHER DEVELOPMENT OF YOUR CLAIM HAS
BEEN MADE AND, FOR THE REASONS SET FORTH BELOW, WE ARE UNABLE TO ALLOW
ANY ADDITIONAL COSTS ATTRIBUTABLE TO THE CHANGED PACKING REQUIREMENTS.
A FURTHER REVIEW OF THIS MATTER REVEALS THAT THE SHIPPING
INSTRUCTIONS IN THE INVITATION FOR BIDS REQUIRED EXPORT PACKAGING AND
THAT YOUR BID INCLUDED AN ITEM OF COST FOR SUCH PACKAGING. THE COST OF
COMMERCIAL PACKING 12 EACH OF ITEM 1 UNDER THE CONTRACT HAS BEEN
REPORTED TO HAVE BEEN ABOUT $25 LESS PER UNIT THAN EXPORT PACKING.
HENCE, IT IS NOT UNDERSTOOD HOW THE CHANGE IN PACKING REQUIREMENTS FROM
EXPORT TO COMMERCIAL PACK COULD HAVE RESULTED IN ANY ADDITIONAL COSTS.
STANDARD FORM "PRESERVATION PACKAGING AND PACKING REQUIREMENTS" MCP
71-163, PAGE 1, WHICH WAS INCORPORATED INTO AND MADE A PART OF THE
CONTRACT, SPECIFICALLY PROVIDED FOR EXPORT PACKING AND SHIPPING
CONTAINERS. THEREFORE, IT WOULD APPEAR THAT YOU WERE OBLIGATED TO
PRESERVE AND PACKAGE ALL THE ITEMS FOR EXPORT SHIPMENT AND THAT ANY
LATER CHANGE TO A LESS EXPENSIVE PACKAGING REQUIREMENT CERTAINLY WOULD
HAVE EFFECTED A SAVINGS IN COST TO YOUR COMPANY.
B-138828, JUL. 7, 1959
TO MR. JOHN HARDY:
YOUR LETTER OF MAY 12, 1959, REQUESTS A REVIEW OF OUR DECISION OF
MARCH 27, 1959, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR
COMPENSATORY TIME OR ADDITIONAL COMPENSATION WHEN YOU SAY YOU WERE
REQUIRED TO WORK IN EXCESS OF 2,016 HOURS IN A YEAR, 1958, IN WHICH A
HOLIDAY OCCURRED ON SATURDAY (OUTSIDE YOUR REGULAR WORKWEEK). YOU SAY
THIS RESULTED IN YOUR BEING REQUIRED TO PERFORM DUTY FOR AN ADDITIONAL 8
HOURS, OR A TOTAL OF 2,024 HOURS, IN THAT YEAR FOR WHICH YOU BELIEVE YOU
ARE ENTITLED TO BE PAID ADDITIONAL COMPENSATION.
YOUR DOUBT IN THE MATTER APPEARS TO ARISE FROM THE REQUIREMENTS OF
SECTION 601 (D) OF PUBLIC LAW 68, POSTAL FIELD SERVICE COMPENSATION ACT,
1955, 39 U.S.C. 1001 (D), THAT A FACTOR OR DIVISOR OF 2,080 BE USED IN
COMPUTING THE HOURLY SALARY RATE OF A REGULAR HOURLY RATE EMPLOYEE OF
THE POSTAL FIELD SERVICE AND 2,016 FOR SUBSTITUTE EMPLOYEES. THE
REFERENCE IN OUR LETTER OF MARCH 27 TO HOUSE OF REPRESENTATIVES REPORT
NO. 728, WHEREIN IT STATES THAT THE DIVISOR OR FACTOR FOR REGULAR POSTAL
EMPLOYEES WAS DETERMINED UPON THE BASIS OF A 52-WEEK YEAR WITH 40 HOURS
OF WORK EACH WEEK, WHICH FOR A REGULAR EMPLOYEE GENERALLY WOULD INCLUDE
64 HOURS OF 8 PAID HOLIDAYS, APPARENTLY HAS LED YOU TO AN ERRONEOUS
CONCLUSION THAT A REGULAR HOURLY RATE POSTAL FIELD SERVICE EMPLOYEE IS
PAID FOR NO MORE THAN 2,016 HOURS IN ANY YEAR.
SECTION 1001 OF TITLE 39 OF THE UNITED STATES CODE READS IN PART AS
FOLLOWS:
"EMPLOYEES IN THE POSTAL FIELD SERVICE SHALL BE PAID COMPENSATION IN
TWENTY-SIX INSTALLMENTS. EACH SUCH INSTALLMENT SHALL BE THE
COMPENSATION FOR A PAY PERIOD OF TWO WEEKS.
"/C) HOURLY RATE EMPLOYEES.
AS BASIS COMPENSATION FOR THE PAY PERIOD, AN HOURLY RATE EMPLOYEE
SHALL BE PAID AN AMOUNT EQUAL TO THE PRODUCT OF HIS HOURLY RATE OF BASIC
COMPENSATION AND THE NUMBER OF HOURS OF SERVICE FOR WHICH HE HAS CREDIT.
"/D) RULES FOR COMPUTATION OF RATES OTHER THAN ANNUAL RATES.
FOR PURPOSES OF COMPUTING RATES OF COMPENSATION OTHER THAN ANNUAL
RATES THE FOLLOWING RULES SHALL GOVERN:
(1) TO COMPUTE AN HOURLY RATE OF BASIC COMPENSATION FOR EMPLOYEES
OTHER THAN SUBSTITUTE EMPLOYEES, THE ANNUAL RATE OF BASIC COMPENSATION
SHALL BE DIVIDED BY 2,080.
(2) TO COMPUTE AN HOURLY RATE OF BASIC COMPENSATION FOR SUBSTITUTE
EMPLOYEES, THE ANNUAL RATE OF BASIC COMPENSATION SHALL BE DIVIDED BY
2,016.'
THE FACTORS OR DIVISORS WERE PRESCRIBED BY THE ACT FOR THE PURPOSE OF
COMPUTING HOURLY RATES FOR REGULAR AND SUBSTITUTE POSTAL FIELD SERVICE
EMPLOYEES AND HAVE NO APPLICATION TO THE OVERTIME STATUTES, NOR IS THERE
ANY PROVISION UNDER THE ACT OR ANY OTHER ACT WHICH LIMITS THE NUMBER OF
WORK-HOURS FOR HOURLY POSTAL EMPLOYEES TO 2,016 HOURS IN ANY YEAR. THE
REGULAR HOURLY EMPLOYEE IS PAID ON THE BASIS OF 2,080 HOURS, EVEN THOUGH
HE WORKS LESS HOURS BECAUSE OF HOLIDAYS FALLING WITHIN HIS REGULAR
WORKWEEK.
SINCE IT APPEARS FROM YOUR LETTER OF MAY 12 THAT YOU WERE PAID DURING
THE YEAR 1958 FOR 2,080 WORK-HOURS--- WHICH INCLUDED 7 HOLIDAYS OR 56
HOURS, AT THE RATE PROVIDED BY STATUTE, FOR WHICH NO PERFORMANCE OF DUTY
WAS REQUIRED--- YOU ARE NOT ENTITLED TO PAYMENT OF ADDITIONAL
COMPENSATION FOR THE ADDITIONAL 8 HOURS WORKED, WITHIN THE 2,080 HOURS
FOR WHICH YOU HAVE BEEN PAID, BECAUSE OF THE HOLIDAY OCCURRING ON
SATURDAY. WE RECOGNIZE THAT, UNDER THE STATUTE, EVEN THOUGH YOU WORKED
AN ADDITIONAL DAY IN 1958 BECAUSE A HOLIDAY FELL ON SATURDAY, THE PAY
YOU RECEIVED WAS THE SAME AS YOU WOULD HAVE RECEIVED HAD THE HOLIDAY
FALLEN ON A DAY WITHIN YOUR REGULAR WORKWEEK. LIKEWISE, WE REALIZE THAT
IN THIS SITUATION A SUBSTITUTE MAY HAVE RECEIVED ADDITIONAL PAY FOR THE
SAME NUMBER OF HOURS OF WORK PERFORMED BY YOU BUT, ON THE OTHER HAND, A
SUBSTITUTE WHOSE SERVICES WERE REQUIRED FOR FEWER HOURS DURING THE YEAR
AS A RESULT OF THE HOLIDAY HAVING FALLEN ON SATURDAY WOULD HAVE RECEIVED
LESS PAY DURING THE YEAR.
B-138962, JUL. 7, 1959
TO THE SECRETARY OF THE TREASURY:
IN A LETTER OF MARCH 4, 1959, CC:AT:AGB, THE DIRECTOR OF THE
OPERATING FACILITIES DIVISION, INTERNAL REVENUE SERVICE, SUBMITTED FOR
OUR CONSIDERATION A QUESTION ARISING OUT OF THE SETTLEMENT OF THE SUIT
OF CHARLES LAMBERT AGAINST THE UNITED STATES, IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI. THE LETTER
WILL BE CONSIDERED AS A REQUEST FROM YOU FOR A DECISION UNDER THE
PROVISIONS OF THE ACT OF JULY 31, 1894, 28 STAT. 207, 208, AS AMENDED,
42 STAT. 24.
AS THE RESULT OF AN ACCIDENT ON A PUBLIC HIGHWAY IN MISSISSIPPI,
INVOLVING AN AUTOMOBILE DRIVEN BY AN INTERNAL REVENUE SERVICE EMPLOYEE
ON OFFICIAL BUSINESS AND A MOTORCYCLE DRIVEN BY CHARLES LAMBERT, THE
LATTER FILED SUIT UNDER THE FEDERAL TORT CLAIMS ACT FOR THE SUM OF
$50,000. MR. LAMBERT'S ATTORNEYS OFFERED TO SETTLE THE SUIT FOR THE
SUM OF $6,000 AND ASSURANCE THAT THEIR CLIENT WOULD NOT HAVE TO PAY FOR
HOSPITAL AND MEDICAL SERVICES RECEIVED FROM THE VETERANS ADMINISTRATION.
IT APPEARS MR. LAMBERT, A VETERAN, WAS ADMITTED TO A VETERANS
ADMINISTRATION HOSPITAL FOR TREATMENT OF THE INJURIES SUSTAINED IN THE
ACCIDENT AND HAS BEEN BILLED BY THE VETERANS ADMINISTRATION IN THE
AMOUNT OF $4,684.86.
THE DEPARTMENT OF JUSTICE, AFTER INFORMING THE INTERNAL REVENUE
SERVICE OF THE OFFER OF COMPROMISE AND THAT THE VETERANS ADMINISTRATION
WISHED TO BE REIMBURSED FOR THE MEDICAL SERVICES FURNISHED MR. LAMBERT,
ACCEPTED THE COMPROMISE OFFER WITH THE APPARENT ACQUIESCENCE OF THE
INTERNAL REVENUE SERVICE.
THE DISTRICT COURT APPROVED THE COMPROMISES BY AN ORDER OF OCTOBER
25, 1958. THE ORDER, PROVIDING FOR THE PAYMENT OF $6,000 TO THE
PLAINTIFF AND THE WAIVER OF THE VETERANS ADMINISTRATION HOSPITAL BILL,
WENT ON TO STATE "THAT INSOFAR AS PLAINTIFF IS CONCERNED DEFENDANT
UNITED STATES, ON BEHALF OF THE VETERANS ADMINISTRATION, WAIVES
COLLECTION OF PLAINTIFF'S HOSPITAL BILL IN THE SUM OF $4,684.86.'
THE DEPARTMENT OF JUSTICE ON NOVEMBER 5, 1958, FORWARDED THE COURT
ORDER TO THE INTERNAL REVENUE SERVICE AND REQUESTED THE PREPARATION OF
CHECKS FOR THE SUMS PAYABLE, UNDER THE ORDER, TO MR. LAMBERT AND HIS
ATTORNEYS. THE DEPARTMENT ALSO REQUESTED THE SERVICE TO FORWARD TO THE
VETERANS ADMINISTRATION A CHECK IN THE AMOUNT OF $4,684.86.
IN A LETTER DATED DECEMBER 12, 1958, THE CHIEF COUNSEL OF THE
INTERNAL REVENUE SERVICE ADVISED THE DEPARTMENT OF JUSTICE THAT THE
ORDER OF THE COURT PRESENTED NO PROBLEM AS REGARDS THE PAYMENT TO MR.
LAMBERT AND HIS ATTORNEYS, BUT THAT IT DID NOT APPEAR THE ORDER AFFORDED
ANY BASIS FOR THE PAYMENT OF THE MEDICAL BILL BY THE INTERNAL REVENUE
SERVICE. THE LETTER WENT ON TO STATE THAT IF THE VETERANS
ADMINISTRATION INSISTED ON REIMBURSEMENT FROM THE INTERNAL REVENUE
SERVICE THE COURT ORDER SHOULD BE AMENDED TO PROVIDE FOR THE ISSUANCE OF
A CHECK TO CHARLES LAMBERT IN THE AMOUNT OF $4,684.86 AND FOR THE
INDORSEMENT OF SUCH CHECK BY THE PLAINTIFF TO THE VETERANS
ADMINISTRATION FOR THE PAYMENT OF THE HOSPITAL BILL. THAT UNLESS THE
ORDER WAS SO CHANGED IT WOULD BE NECESSARY FOR THE VETERANS
ADMINISTRATION TO PROCESS ANY CLAIM IT MIGHT ASSERT AGAINST THE INTERNAL
REVENUE SERVICE IN THE CASE THROUGH THE GENERAL ACCOUNTING OFFICE.
THE COURT ON DECEMBER 31, 1958, AMENDED ITS FINAL ORDER AS FOLLOWS:
"IT APPEARING TO THE COURT THAT THE INTERNAL REVENUE SERVICE SHOULD
REIMBURSE THE VETERANS ADMINISTRATION FOR THE PLAINTIFF'S HOSPITAL BILL
INCURRED ON ACCOUNT OF THE ACCIDENT COMPLAINED OF IN THE COMPLAINT, SAID
BILL BEING IN THE SUM OF $4,684.86, AND THAT IT WAS THE INTENTION OF THE
VETERANS ADMINISTRATION TO WAIVE THE HOSPITAL BILL AS TO THE PLAINTIFF
ONLY AND THAT AGENCY INSISTS ON REIMBURSEMENT FROM THE INTERNAL REVENUE
SERVICE, AND THE COURT BEING OF THE OPINION THAT THIS REIMBURSEMENT
SHOULD BE MADE, IT IS HEREBY ORDERED AND ADJUDGED THAT THE INTERNAL
REVENUE SERVICE ISSUE ITS CHECK PAYABLE JOINTLY TO MESSRS. BUNTIN AND
MARTIN, ATTORNEYS OF RECORD FOR CHARLES LAMBERT, AND THE VETERANS
ADMINISTRATION OF THE UNITED STATES, AND DELIVER THE SAME TO THE UNITED
STATES ATTORNEY FOR APPROPRIATE DISPOSITION. THE UNITED STATES ATTORNEY
IS DIRECTED TO OBTAIN AN ENDORSEMENT OF SUCH CHECK BY PLAINTIFF'S
ATTORNEYS AND THEN TURN SAME OVER TO THE VETERANS ADMINISTRATION FOR
PAYMENT OF THE HOSPITAL BILL ABOVE MENTIONED. LET THE COURT'S FINAL
ORDER IN THIS CAUSE HERETOFORE ENTERED ON THE 25TH DAY OF OCTOBER 1958
BE AMENDED TO THE EXTENT HEREINABOVE SET FORTH.'
THE LETTER OF THE DIRECTOR, OPERATING FACILITIES DIVISION, REQUESTS
OUR OPINION WHETHER IT WOULD BE PROPER FOR THE INTERNAL REVENUE TO ISSUE
A CHECK IN COMPLIANCE WITH THE AMENDED COURT ORDER.
SECTION 2677, TITLE 28, UNITED STATES CODE, AUTHORIZES THE ATTORNEY
GENERAL, WITH THE APPROVAL OF THE COURT, TO ARBITRATE, COMPROMISE, OR
SETTLE ANY CIVIL ACTION ON CLAIMS FOR MONETARY DAMAGES FOR PERSONAL OR
PROPERTY INJURY CAUSED BY THE NEGLIGENT OR WRONGFUL ACT OF AN EMPLOYEE
OF THE GOVERNMENT WHILE ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT. AND
SECTION 2672 PROVIDES THAT "ANY AWARD, COMPROMISE, OR SETTLEMENT MADE BY
THE ATTORNEY GENERAL PURSUANT TO SECTION 2677 OF THIS TITLE, SHALL BE
PAID BY THE HEAD OF THE FEDERAL AGENCY CONCERNED OUT OF APPROPRIATIONS
AVAILABLE TO SUCH AGENCY.'
THE COURT ORDER AS AMENDED, WITH WHICH WE ARE HERE CONCERNED, WAS
ISSUED INCIDENT TO THE COMPROMISE OF A CLAIM AGAINST THE UNITED STATES
UNDER AUTHORITY OF SECTION 2677. THE INSTRUCTION IN THE ORDER, THAT THE
INTERNAL REVENUE SERVICE ISSUE A CHECK FOR REIMBURSEMENT OF THE VETERANS
ADMINISTRATION, WAS FOR THE PURPOSE OF THE COMPROMISE AND NEED NOT BE
VIEWED AS INVOLVING MERELY AN INTERNAL FISCAL TRANSACTION OF THE
GOVERNMENT BEYOND THE PURVIEW OF THE COURT. FURTHERMORE, THE
APPROPRIATION FOR SALARIES AND EXPENSES OF THE INTERNAL REVENUE SERVICE
IS AVAILABLE FOR THE PAYMENT OF THE HOSPITAL AND MEDICAL EXPENSES
INCURRED, AS AN ITEM OF THE COMPROMISE, AND WE SEE NO SERIOUS OBJECTION
TO COMPLIANCE BY THE INTERNAL REVENUE SERVICE WITH THE AMENDED ORDER OF
THE COURT.
B-139676, JUL. 7, 1959
TO THE MARVIN COMPANY:
REFERENCE IS MADE TO YOUR LETTER OF APRIL 30, 1959, REQUESTING REVIEW
OF THE SETTLEMENT DATED APRIL 27, 1959, WHICH DISALLOWED YOUR CLAIM FOR
$140.28 ALLEGED TO BE DUE AS A PARTIAL REFUND FOR TWO LOTS OF BEARINGS
PURCHASED FROM THE GOVERNMENT UNDER SALES CONTRACT NO.
(40-604/S-58-333.
YOU STATE IN YOUR LETTER OF JUNE 4, 1958, TO THE CONTRACTING OFFICER,
THAT THE MATERIAL OFFERED FOR SALE UNDER ITEMS 18 AND 19 WAS PACKED IN
11 BOXES, 10 OF WHICH WERE MARKED "QUAN. 60 EA.' AND THE 11TH BOX WAS
MARKED "QUAN. 27 EA.' YOU ALLEGE THAT WHEN YOU RECEIVED THESE BOXES, IT
WAS DISCOVERED UPON OPENING THEM THAT THE BOXES MARKED "QUAN. 60 EA.'
ACTUALLY CONTAINED 40 BEARINGS AND THAT THE 11TH BOX WAS PROPERLY MARKED
"QUAN. 27 EA. ; " AND THAT WHILE YOU REALIZE THAT THIS WAS A "BY LOT"
PURCHASE, IT IS CUSTOMARY TO CHECK ONE BOX AND ACCEPT THE
GOVERNMENT-MARKED QUANTITY ON THE BALANCE. IN A LETTER DATED DECEMBER
11, 1958, TO THE CONTRACTING OFFICER, YOU STATED THAT THERE WAS A
SHORTAGE OF 200 BEARINGS AT ?7014 EACH IN THE TWO LOTS COVERING ITEMS 18
AND 19.
UNDER THE CONTRACT YOU WERE AWARDED ITEMS 18 AND 19 OF THE INVITATION
FOR BIDS ON A "PRICE FOR THE LOT" BASIS. PARAGRAPH 2 OF THE GENERAL
SALE TERMS AND CONDITIONS OF THE CONTRACT PROVIDED THAT THE PROPERTY WAS
OFFERED "AS IS" AND "WHERE IS" AND THAT THE DESCRIPTION WAS BASED ON THE
BEST AVAILABLE INFORMATION, BUT THAT THE GOVERNMENT MADE NO GUARANTY,
WARRANTY, OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO QUANTITY OR
WEIGHT. ALSO, THE BIDDERS WERE WARNED, UNDER PARAGRAPH 8, THAT IN THE
EVENT OF ANY VARIATION BETWEEN THE QUANTITY OR WEIGHT LISTED FOR ANY
ITEM AND THE QUANTITY OR WEIGHT OF SUCH ITEM TENDERED OR DELIVERED TO
THE PURCHASER, NO ADJUSTMENT FOR SUCH VARIATION WOULD BE MADE WHERE AN
AWARD WAS MADE ON A "PRICE FOR THE LOT" BASIS.
IT CONSISTENTLY HAS BEEN HELD BY THE COURTS AND OUR OFFICE THAT AN
EXPRESS DISCLAIMER OF WARRANTY--- AS HERE--- VITIATES ANY AND ALL
WARRANTIES WHICH OTHERWISE MIGHT ARISE OUT OF A SALES TRANSACTION. SEE
W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED 284
U.S. 676; UNITED STATES V. KELLY, 112 F.SUPP. 831; AND TRIAD
CORPORATION V. UNITED STATES, 63 C.CLS. 151. TO ILLUSTRATE, THE CASE
OF MAGUIRE AND COMPANY V. UNITED STATES, 273 U.S. 67, INVOLVED AN ,AS
IS" SALE OF CLOTH BY THE GOVERNMENT UNDER AN INVITATION WHICH GAVE THE
WEIGHT PER YARD OF THE MATERIALS. IT TURNED OUT THAT THE MATERIALS DID
NOT CONFORM TO THE SPECIFIED WEIGHT. IN DENYING THE PLAINTIFF RECOVERY,
THE UNITED STATES SUPREME COURT HELD THAT THE GIVEN WEIGHT COULD NOT BE
CONSIDERED AS A WARRANTY UNDER THE ADVERTISED TERMS OF THE SALE. ALSO,
IN LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90, AN AGENT FOR THE
GOVERNMENT LISTED FOR SALE CERTAIN ITEMS OF JUNK AT SEVERAL LOCATIONS,
SETTING FORTH THE WEIGHTS AND KINDS OF EACH. ALTHOUGH THE QUANTITIES
TURNED OUT TO BE MUCH LESS THAN THOSE SHOWN IN THE ADVERTISEMENT, THE
PLAINTIFFS WERE HELD NOT TO HAVE ANY CAUSE OF ACTION, SINCE, AS STATED
BY THE SUPREME COURT, THE MENTIONING OF THE QUANTITIES ,CANNOT BE
REGARDED AS IN THE NATURE OF A WARRANTY, BUT MERELY AS AN ESTIMATE OF
THE PROBABLE AMOUNTS IN REFERENCE TO WHICH GOOD FAITH ONLY COULD BE
REQUIRED OF THE PARTY MAKING IT.' THE FACT THAT THE GOVERNMENT AND YOU
MAY HAVE BEEN MISTAKEN AS TO THE NUMBER OF THE BEARINGS IN THE CASES
MARKED "QUAN. 60 EA.' DOES NOT ENTITLE YOU TO RELIEF SINCE THE COURTS
HAVE HELD THAT THE DISCLAIMER OF WARRANTY CLAUSES EMPLOYED IN GOVERNMENT
CONTRACTS SUCH AS HERE INVOLVED PRECLUDE RECOVERY ON THE THEORY OF
MUTUAL MISTAKE. SEE AMERICAN SANITARY RAG CO. V. UNITED STATES, C.CLS.
NO. 161-57, DECIDED MAY 7, 1958, AND CASES CITED THEREIN.
IN VIEW OF THE FOREGOING, THERE EXISTS NO LEGAL BASIS FOR MAKING AN
ADJUSTMENT OF THE CONTRACT PRICE BASED UPON A SHORTAGE OF THE ITEMS
INVOLVED UNLESS IT CAN BE SHOWN THAT THE REPRESENTATIVES OF THE
GOVERNMENT DID NOT ACT IN GOOD FAITH. FROM THE EVIDENCE PRESENTED THERE
IS NO REASONABLE BASIS FOR CONCLUDING THAT THE REPRESENTATIVES OF THE
GOVERNMENT DID NOT ACT IN GOOD FAITH.
B-139707, JUL. 7, 1959
TO THE ATLANTIC AND PACIFIC WIRE AND CABLE COMPANY, INC. :
REFERENCE IS MADE TO YOUR LETTER DATED MAY 5, 1959, AND PREVIOUS
CORRESPONDENCE, REQUESTING REVIEW OF SETTLEMENT DATED APRIL 30, 1959,
WHICH DISALLOWED YOUR CLAIM FOR $430.95 REPRESENTING FREIGHT CHARGES
ALLEGED TO BE DUE UNDER CONTRACT NO. AF 42/600/-9828, DATED JUNE 27,
1952.
THE CONTRACT WAS TERMINATED PURSUANT TO TERMINATION SUPPLEMENTAL
AGREEMENT NO. 7. YOU WERE INSTRUCTED TO SHIP THE SURPLUS PROPERTY
LISTED ON THE TERMINATION INVENTORY SCHEDULE TO ROME AIR FORCE DEPOT,
ROME, NEW YORK, ON A GOVERNMENT BILL OF LADING. THE RECORDS DISCLOSE
THAT ON SEPTEMBER 15, 1954, MR. OBOLER, PRESIDENT OF THE ATLANTIC AND
PACIFIC WIRE AND CABLE COMPANY, NC., ACKNOWLEDGED RECEIPT OF THE
GOVERNMENT BILL OF LADING. HOWEVER, YOU IGNORED INSTRUCTIONS TO USE THE
GOVERNMENT BILL OF LADING AND SHIPPED THE ITEMS ON OCTOBER 12 AND 13,
1954, BY COMMERCIAL BILL OF LADING. ON OCTOBER 19, 1954, YOU AND THE
CONTRACTING OFFICER EXECUTED A SUPPLEMENTAL AGREEMENT WHICH PROVIDED FOR
PAYMENT OF $28,579 IN TOTAL AND FINAL SETTLEMENT UNDER THE CONTRACT.
ON THE SAME DATE YOU WROTE A LETTER TO THE ADMINISTRATIVE OFFICE
CONFIRMING THAT YOU HAD ACTUALLY SHIPPED THE MATERIAL AND AGREED TO
ACCEPT THE AMOUNT OF $28,579, WHICH WAS PAID YOU ON OCTOBER 27, 1954.
IT WAS NOT UNTIL DECEMBER 12, 1957, THAT YOU CLAIMED THE AMOUNT
INVOLVED. YOU STATE THAT THE BILL OF LADING WAS DELAYED UNDULY IN THE
MAIL AND WAS NOT RECEIVED BY YOU IN TIME FOR USE IN SHIPPING THE
MATERIAL. HOWEVER, MR. OBOLER OF YOUR FIRM ACKNOWLEDGED RECEIPT OF THE
GOVERNMENT BILL OF LADING ON SEPTEMBER 15, 1954, AND SHIPMENT WAS MADE
OCTOBER 12, 1954. CONSEQUENTLY, YOUR CLAIM FOR THE FREIGHT CHARGES MUST
HAVE BEEN KNOWN TO YOU AT THE TIME YOU SIGNED THE SUPPLEMENTAL AGREEMENT
ON OCTOBER 19, 1954, ACCEPTING THE PAYMENT OF $28,579 IN TOTAL AND FINAL
SETTLEMENT. AS NO EXCEPTION WAS TAKEN IN THE SETTLEMENT IT MUST BE
TAKEN AS FINAL. IT HAS BEEN HELD MANY TIMES BY THE COURTS AND THE
ACCOUNTING OFFICERS OF THE GOVERNMENT THAT THE EXECUTION OF A RELEASE
PRECLUDES A CONTRACTOR FROM THEREAFTER PRESENTING ANY CLAIM ARISING OUT
OF THE TRANSACTION INVOLVED, EXCEPT SUCH CLAIMS AS MAY HAVE BEEN
SPECIFICALLY EXCEPTED BY THE TERMS OF THE RELEASE. SEE UNITED STATES V.
WM. CRAMP AND SONS SHIP AND ENGINE BUILDING COMPANY, 206 U.S. 118; C.R.
WILSON BODY COMPANY V. UNITED STATES, 59 C.CLS. 611; BEIN V. UNITED
STATES, 101 C.CLS. 144; 23 COMP. GEN. 632; 25 ID. 893.
ACCORDINGLY, THE SETTLEMENT OF APRIL 30, 1959, IS SUSTAINED.
WITH REGARD TO YOUR INQUIRY,"WHEN WILL THIS MATTER BE REFERRED TO THE
BOARD OF APPEALS," YOU ARE ADVISED THAT DECISIONS OF THE COMPTROLLER
GENERAL OF THE UNITED STATES ARE BINDING UPON THE EXECUTIVE DEPARTMENTS
AND ESTABLISHMENTS OF THE GOVERNMENT. CONSEQUENTLY, THIS MATTER CANNOT
BE REFERRED TO ANY "BOARD OF APPEALS.' HOWEVER, YOUR ATTENTION IS
INVITED GENERALLY TO 28 U.S.C. 1346 AND 1491, PERTAINING TO SUITS
AGAINST THE UNITED STATES WHICH ARE COGNIZABLE IN THE DISTRICT COURTS
AND THE COURT OF CLAIMS OF THE UNITED STATES.
B-139842, JUL. 7, 1959
TO THE HONORABLE NORMAN P. MASON, ADMINISTRATOR, HOUSING AND HOME
FINANCE AGENCY:
YOUR LETTER OF JUNE 5, 1959, ASKS WHETHER A FORMER CONGRESSMAN, WHOSE
FINAL SALARY IN THAT CAPACITY WAS $22,500 PER YEAR, WHO HAS BEEN
APPOINTED TO A POSITION IN YOUR AGENCY MAY HAVE HIS SALARY FIXED AT THE
MAXIMUM RATE OF THE GRADE IN WHICH APPOINTED OR AT THE MINIMUM RATE
THEREOF UNDER THE PROVISIONS OF 5 U.S.C.A. 1132 (C).
YOU FURNISH WITH YOUR SUBMISSION A LETTER DATED MAY 1, 1959, FROM THE
HONORABLE H. R. GROSS, HOUSE OF REPRESENTATIVES, TO YOU, EXPRESSING HIS
VIEW CONCERNING THE MATTER, AND A MEMORANDUM DATED JUNE 5, 1959, FROM
YOUR GENERAL COUNSEL EXPRESSING HIS OPINION REGARDING THE QUESTION.
5 U.S.C.A. 1132 (C) READS AS FOLLOWS:
"ANY EMPLOYEE IN THE LEGISLATIVE BRANCH WHOSE COMPENSATION IS
DISBURSED BY THE SECRETARY OF THE SENATE OR THE CLERK OF THE HOUSE OF
REPRESENTATIVES, AND WHO HAS COMPLETED TWO OR MORE OF YEARS OF SERVICE
AS SUCH AN EMPLOYEE, MAY UPON APPOINTMENT TO A POSITION SUBJECT TO THIS
CHAPTER HAVE HIS INITIAL RATE OF COMPENSATION FIXED AT THE MINIMUM RATE
OF THE APPROPRIATE GRADE, OR AT ANY STEP OF SUCH GRADE THAT DOES NOT
EXCEED THE HIGHEST PREVIOUS RATE OF COMPENSATION RECEIVED BY HIM DURING
SUCH SERVICE IN THE LEGISLATIVE BRANCH.'
THE FOREGOING STATUTORY PROVISION, GRANTING ADMINISTRATIVE DISCRETION
IN THE USE OF THE HIGHEST PREVIOUS RATE ATTAINED IN THE LEGISLATIVE
BRANCH, WAS ENACTED TO OVERCOME THE EFFECT OF OUR DECISION 28 COMP. GEN.
455. THAT DECISION HELD AS FOLLOWS, QUOTING FROM THE SYLLABUS:
"UPON APPOINTMENT IN A POSITION UNDER THE CLASSIFICATION ACT IN THE
EXECUTIVE BRANCH OF THE GOVERNMENT, THE SALARY RATES ATTAINED BY
EMPLOYEES IN THE POSITIONS IN AGENCIES UNDER THE LEGISLATIVE OR JUDICIAL
BRANCH OF THE GOVERNMENT--- NOT OTHERWISE SUBJECT TO THE CLASSIFICATION
ACT--- MAY NOT BE USED AS A BASIS FOR FIXING THEIR INITIAL SALARY RATES
ABOVE THE MINIMUM OF THE GRADE, UNDER THE RULE IN 26 COMP. GEN. 368,
RESPECTING THE FIXING OF INITIAL SALARY RATES OF EMPLOYEES UPON
TRANSFER, PROMOTION, REINSTATEMENT, ETC., IN CLASSIFIED POSITIONS ON THE
BASIS OF THE HIGHER RATE ATTAINED IN ANY PREVIOUS GOVERNMENT POSITION.'
SEE PAGES 2570 AND 71 U.S. CODE, CONGRESSIONAL AND ADMINISTRATIVE
NEWS, 85TH CONGRESS, 2D SESSION, 1958.
UNDER 2 U.S.C.A. 78, THE SERGEANT AT ARMS OF THE HOUSE OF
REPRESENTATIVES IS CHARGED WITH THE DUTY, AMONG OTHERS, TO KEEP THE
ACCOUNTS FOR THE PAY AND MILEAGE OF MEMBERS AND DELEGATES AND PAY THEM
AS PROVIDED BY LAW. FURTHER, UNDER 2 U.S.C.A. 80, THE MONEYS WHICH HAVE
BEEN, OR MAY BE, APPROPRIATED FOR THE COMPENSATION AND MILEAGE OF
MEMBERS AND DELEGATES SHALL BE PAID ON REQUISITIONS DRAWN BY THE
SERGEANT AT ARMS OF THE HOUSE OF REPRESENTATIVES AND SHALL BE KEPT,
DISBURSED, AND ACCOUNTED FOR BY HIM ACCORDING TO LAW AND HE SHALL BE A
DISBURSING OFFICER. BY THE TERMS OF 2 U.S.C.A. 83, THE SERGEANT AT ARMS
OF THE HOUSE OF REPRESENTATIVES SHALL CONTINUE IN HIS OFFICE UNTIL A
SUCCESSOR IS CHOSEN AND QUALIFIED.
SINCE THE SERGEANT AT ARMS, UNDER THE FOREGOING STATUTORY PROVISIONS,
DISBURSES THE COMPENSATION OF THE MEMBERS OF THE HOUSE OF
REPRESENTATIVES, IS A CONTINUING OFFICIAL THEREOF, AND SINCE, ALSO, THE
LANGUAGE OF 5 U.S.C.A. 1132 (C) ABOVE, APPLIES ONLY TO "ANY EMPLOYEE OF
THE LEGISLATIVE BRANCH WHOSE COMPENSATION IS DISBURSED BY BY THE * * *
CLERK OF THE HOUSE OF REPRESENTATIVES * * *," AND FURTHER, HAVING IN
MIND THE PURPOSE OF THE LATTER STATUTE AS INDICATED ABOVE WE ARE
REQUIRED TO CONCLUDE THAT THE STATUTORY PROVISION HAS NO APPLICATION TO
EX-MEMBERS OF CONGRESS.
THEREFORE, SINCE THE APPOINTMENT HERE REPRESENTS A NEW APPOINTMENT,
OF AN EX-MEMBER OF CONGRESS TO A POSITION IN THE EXECUTIVE BRANCH, THE
PROPER SALARY FOR THE POSITION MUST BE AT THE MINIMUM RATE OF THE GRADE.
B-139980, JUL. 7, 1959
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED JUNE 19, 1959, WITH ENCLOSURES,
FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), RELATING TO A
CLAIM SUBMITTED BY THE CUMMINGS BOAT COMPANY, TACOMA, WASHINGTON, FOR
ADDITIONAL COMPENSATION UNDER CONTRACT NO. DA-04-197-TC-3283, IT BEING
ALLEGED BY THE CLAIMANT THAT IT MADE A MISTAKE IN ITS BID OF JUNE 23,
1958, COVERING THE DRYDOCKING, TOWING, CLEANING, PAINTING, AND REPAIR OF
THE U.S. ARMY VESSEL DESIGN NO. 259 (VESSEL NUMBER "T-89"). IN VIEW OF
THE FACTS SET FORTH IN THE FILE, OUR DECISION IS REQUESTED AS TO WHETHER
THE RELIEF REQUESTED MAY BE GRANTED.
THE RECORD SHOWS THAT BY INVITATION NO. TC-04-542-58-92, DATED JUNE
12, 1958, THE U.S. ARMY TRANSPORTATION TERMINAL COMMAND, PACIFIC, FORT
MASON, CALIFORNIA, INVITED BIDS FOR THE PERFORMANCE OF THE WORK REFERRED
TO IN THE PRECEDING PARAGRAPH, THE BIDS TO BE OPENED AT 10 A.M. ON JUNE
23, 1958. FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION, THE
LOWEST BEING THAT SUBMITTED BY THE CUMMINGS BOAT COMPANY AT THE BID
PRICE OF $2,512. A CONTRACT WAS AWARDED TO THE COMPANY ON JUNE 23,
1958, AT ITS BID PRICE. THE FOUR OTHER BIDS RECEIVED RANGED IN PRICE
FROM $4,101 TO $6,415.
THE CONTRACTING OFFICER REPORTS THAT THE AWARD WAS MADE AT 10:15 A.M.
ON JUNE 23, 1958, AND THAT AT 3:30 P.M. ON THE SAME DAY A REPRESENTATIVE
OF THE CONTRACTOR CALLED STATING THAT AN ERROR HAD BEEN MADE IN THAT
THERE HAD BEEN OMITTED FROM THE BID PRICE THE COST OF PARTS REQUIRED BY
ITEM 2.01--- "MAIN ENGINE REPAIR"--- OF THE SPECIFICATIONS. THE RECORD
SHOWS THAT THE BID OF THE CUMMINGS BOAT COMPANY AS TO ITEM 2.01 WAS IN
THE AMOUNT OF $370, WHEREAS THE BIDS OF THE FOUR OTHER BIDDERS FOR THIS
ITEM WERE IN THE AMOUNTS OF $1,249, $1,800, $1,847, AND $2,380. THE
WORK APPEARS TO HAVE BEEN COMPLETED ON AUGUST 8, 1958. UNDER DATE OF
OCTOBER 31, 1958, THE CONTRACTOR REQUESTED PAYMENT OF THE ADDITIONAL SUM
OF $917.40, CLAIMED TO REPRESENT THE ADDITIONAL COST INVOLVED IN THE
REPAIR OF THE MAIN ENGINE REDUCTION GEAR. THAT AMOUNT CONSISTS OF THE
SUM OF $834, AS OF THE COST OF THE PARTS REQUIRED, PLUS TEN PERCENT
($83.40) FOR PROFIT. THE CLAIM WAS SUPPORTED BY A LETTER DATED JUNE 10,
1958, FROM HATCH AND KIRK, INC., TO THE CONTRACTOR, QUOTING A PRICE OF
$834, FOR THE MARINE ENGINE PARTS CALLED FOR BY THE SPECIFICATIONS TO
THE "T-89.'
THE CONTRACTING OFFICER TAKES THE POSITION THAT HE WAS NOT ON
CONSTRUCTIVE NOTICE OF ERROR IN THE BID PRIOR TO THE AWARD OF THE
CONTRACT. IT WAS, HOWEVER, HIS OPINION, BASED UPON REVIEW OF THE JOB
ORDER FILE AND A COMPARISON WITH THE BID BREAKDOWN OF ALL OTHER BIDS
RECEIVED, THAT THE PRICE FOR THE REPAIR PARTS FOR ITEM 2.01 WAS OMITTED
BY THE CONTRACTOR FROM THE PRICE BID FOR THIS ITEM, AND HE RECOMMENDED
THAT THE CONTRACTOR'S CLAIM IN THE AMOUNT OF $917.40 BE FAVORABLY
CONSIDERED--- THAT AMOUNT REPRESENTING A FAIR ESTIMATE OF THE COST TO
THE CONTRACTOR OF THE REPAIR PARTS FOR THE ENGINE.
IT WAS THE RECOMMENDATION OF THE CHIEF OF TRANSPORTATION, AS HEAD OF
A PROCURING ACTIVITY, THAT THE CLAIM OF THE CUMMINGS BOAT COMPANY BE
ALLOWED TO THE EXTENT OF $834. IN CONNECTION WITH SUCH RECOMMENDATION,
THE CHIEF OF TRANSPORTATION EXPRESSED THE VIEW THAT THE CONTRACTING
OFFICER SHOULD HAVE BEEN ON NOTICE OF THE ERROR PRIOR TO AWARD, THIS
VIEW BEING BASED UPON THE DIFFERENCE BETWEEN THE DOLLAR AMOUNT OF THE
LOW BID AND THE FOUR OTHER BIDS AS TO ITEM 2.01; ALSO, THAT THE SAME IS
TRUE RESPECTING THE DIFFERENCE BETWEEN THE TOTAL PRICE OF THE LOW BIDDER
AND THE FOUR OTHER BIDDERS.
ON THE BASIS OF THE RECORD IN THIS CASE, THERE APPEARS TO BE NO DOUBT
THAT AN ERROR WAS MADE IN THE BID AS ALLEGED. FURTHERMORE, THE
PROBABILITY OF ERROR IS SO CLEARLY INDICATED BY THE DIFFERENCE IN THE
BID PRICES THAT IT APPEARS THE CONTRACTING OFFICER SHOULD HAVE BEEN ON
CONSTRUCTIVE NOTICE OF ERROR AND, THEREFORE, SHOULD HAVE REQUESTED
VERIFICATION PRIOR TO AWARD. UNDER THIS CIRCUMSTANCE, WE CONCLUDE THERE
IS A PROPER LEGAL BASIS FOR AMENDING THE CONTRACT HEREIN SO AS TO
AUTHORIZE PAYMENT OF THE ADDITIONAL SUM OF $834, AND ACTION BY YOUR
DEPARTMENT MAY BE TAKEN ACCORDINGLY. A COPY OF THIS DECISION SHOULD BE
ATTACHED TO THE AMENDMENT.
B-139993, JUL. 7, 1959
TO THE HONORABLE JOHN A. MCCONE, CHAIRMAN, UNITED STATES ATOMIC
ENERGY COMMISSION:
WE REFER TO A LETTER OF JUNE 22, 1959, SIGNED BY THE GENERAL MANAGER
CONCERNING REIMBURSABLE COST TYPE CONTRACT NO. AT/30-1/-1349 WITH YALE
UNIVERSITY.
THE CONTRACT, IN EFFECT SINCE MAY 14, 1952, PROVIDES FOR THE
FOLLOWING WORK TO BE PERFORMED BY THE UNIVERSITY:
1. MODIFICATION OF A GOVERNMENT-OWNED PULSED LINEAR ACCELERATOR.
2. CONSTRUCTION OF A NEW BUILDING TO HOUSE THE ACCELERATOR.
3. PERFORMANCE OF A RESEARCH PROGRAM UTILIZING THE ACCELERATOR.
WHILE THE CONTRACT CALLS FOR PERFORMANCE OF ALL THREE OF THE
FOREGOING ITEMS, IT CONTAINS, IN ARTICLE II--- CONSIDERATION, SPECIFIC
PROVISION FOR PAYMENT ONLY WITH RESPECT TO THE LATTER TWO.
AMPLE EVIDENCE HAS BEEN PRESENTED TO ESTABLISH THAT THE PARTIES TO
THE CONTRACT INTENDED THAT THE UNIVERSITY SHOULD BE REIMBURSED FOR COSTS
IN CONNECTION WITH MODIFICATION OF THE LINEAR ACCELERATOR AND AUTHORITY
IS REQUESTED TO REFORM THE CONTRACT TO CLEARLY REFLECT SUCH INTENTION.
WHERE BY REASON OF A MUTUAL MISTAKE A CONTRACT AS REDUCED TO WRITING
DOES NOT REFLECT THE ACTUAL AGREEMENT OF THE PARTIES, THE CONTRACT MAY
BE REFORMED TO REFLECT SUCH AGREEMENT. 30 COMP. GEN. 220. AS STATED,
THE INTENTION OF THE PARTIES HAS BEEN CLEARLY ESTABLISHED.
WE NOTE THAT WHILE ARTICLE II OF THE CONTRACT SPECIFICALLY COVERS
PAYMENTS WITH RESPECT TO THE TWO ITEMS ABOUT WHICH NO QUESTION HAS
ARISEN, IT ALSO PROVIDES AT PARAGRAPH 2:
"THE CONTRACTOR SHALL BE REIMBURSED BY THE GOVERNMENT WITHOUT
DUPLICATION, FOR SUCH OF ITS ACTUAL COSTS AND EXPENSES * * * (II) AS ARE
INCURRED IN CONFORMITY WITH THE PROVISIONS OF THIS CONTRACT, * * *.'
UNLESS THE QUOTED PROVISION IS INTERPRETED TO APPLY TO THE
REIMBURSEMENT OF COSTS RELATING TO THE MODIFICATION OF THE LINEAR
ACCELERATOR, IT IS A MERE REDUNDANCY COVERING CONSIDERATION FOR
PERFORMANCE OF PORTIONS OF THE WORK ALREADY COVERED WITH MORE
PARTICULARITY ELSEWHERE IN THE ARTICLE. CONTRACTS SHOULD BE INTERPRETED
SO AS TO GIVE MEANING TO EACH PART. B-137872, JANUARY 27, 1959.
THEREFORE, IT APPEARS THAT THE UNIVERSITY MAY BE REIMBURSED ITS COSTS IN
CONNECTION WITH MODIFICATION OF THE LINEAR ACCELERATOR WITHOUT REFORMING
THE CONTRACT. HOWEVER, SINCE THE ULTIMATE EFFECT WOULD BE THE SAME AND
SINCE IT WOULD UNQUESTIONABLY RESULT IN CLARIFYING THE MATTER, WE HAVE
NO OBJECTION TO THE PROPOSED REFORMATION.
B-132839, JUL. 6, 1959
TO THE NORTH AMERICAN VAN LINES, INC. :
REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 27, 1959, FILE C-37016,
REQUESTING RECONSIDERATION OF OUR DECISION DATED SEPTEMBER 5, 1958,
B-132839, PERTAINING TO YOUR BILL NO. C-37016, COVERING FREIGHT CHARGES
ON A SHIPMENT OF HOUSEHOLD EFFECTS TRANSPORTED FROM NORFOLK, VIRGINIA,
TO MONTCLAIR, NEW JERSEY, UNDER GOVERNMENT BILL OF LADING N-31162049,
DATED APRIL 11, 1953.
YOUR CLAIM WAS DISALLOWED BECAUSE AT THE TIME THIS SHIPMENT MOVED TWO
SETS OF RATES WERE AVAILABLE IN INDEPENDENT MOVERS' AND WAREHOUSEMEN'S
ASSOCIATION, INC., AGENT, TARIFF NO. 7, MF-I.C.C. NO. 21, FOR
STORAGE-IN-TRANSIT AND PICK-UP OR DELIVERY (HANDLING OR HAULING FROM
STORAGE) SERVICE, AND WE USED THE LOWER RATE PROVIDED IN ITEM 80-B OF
THE TARIFF, AS SUPPLEMENTED, IN ADHERENCE TO THE WELL-ESTABLISHED RULE
THAT WHERE TWO RATES ARE AVAILABLE FOR THE SAME SERVICE A SHIPPER IS
ENTITLED TO APPLY THE LOWER RATE.
YOU URGE THAT TWO SETS OF RATES FOR THE SERVICE PERFORMED WERE NOT
AVAILABLE IN TARIFF NO. 7, AS SUPPLEMENTED. SIMILAR OBJECTIONS TO THOSE
MADE BY YOU WERE RAISED BY MOVERS' AND WAREHOUSEMEN'S ASSOCIATION OF
AMERICA, INC., IN BEHALF OF SEVERAL CARRIERS IN CONNECTION WITH TARIFF
NO. 7. THEY WERE CONSIDERED AND ANSWERED IN OUR DECISION OF MAY 12,
1959, B-137919, COPY ENCLOSED. SINCE YOU HAVE ADVANCED NOTHING IN
SUPPORT OF YOUR CONTENTION WHICH WE HAVE NOT ALREADY CONSIDERED IN THE
DECISION TO YOU OF SEPTEMBER 5, 1958, AS AMPLIFIED BY THE DECISION OF
MAY 12, 1959, OUR PRIOR CONCLUSION IS AFFIRMED.
B-137876, JUL. 6, 1959
TO RICHARD BENNETT, ESQUIRE:
YOUR LETTER OF JUNE 9, 1959, REQUESTS FURTHER CONSIDERATION OF THAT
PART OF OUR SETTLEMENT OF MARCH 19, 1959, WHICH DISALLOWED PAYMENT TO
CAPTAIN J. A. BARHANOVIC OF THE PROCEEDS OF SIX OF THE 18 CHOCKS
INVOLVED IN HIS CLAIM NO. S-159901.
YOU NOW PROPOSE TO OBTAIN RELEASES FROM THE PAYEES OF THE SIX CHOCKS
WHICH WERE DISALLOWED. YOU SAY THAT THERE IS A POSSIBILITY THAT THE
PAYEES OF AT LEAST SOME OF THE DISALLOWED CHOCKS, CAN BE CONTACTED AND
YOU APPARENTLY FEEL THAT RELEASES OF ANY CLAIMS THE PAYEES MAY HAVE ON
THESE CHOCKS WOULD PERFECT CAPTAIN BARHANOVIC'S CLAIM.
CAPTAIN BARHANOVIC'S CLAIM IS SOLELY UPON THE CHECKS INVOLVED, AND,
AS YOU ARE AWARE THE INDORSEMENTS ON THE SIX CHECKS IN QUESTION DIFFER
FROM THE NAMES OF THE RESPECTIVE PAYEES. WHILE THE RECORD DISCLOSES
THAT SOME OF THESE PAYEES WERE ILLITERATE, THERE IS NO EVIDENCE THAT ANY
OF THE ILLITERATE PERSONS AFFIXED THEIR NAMES TO THE CHECKS. UNDER THE
LAW OF YUGOSLAVIA, WHICH WE ARE BOUND TO FOLLOW IN THIS MATTER IN VIEW
OF THE DECISION RENDERED BY THE SUPREME COURT IN UNITED STATES V.
GUARANTY TRUST COMPANY OF NEW YORK, 293 U.S. 340, THE TRANSFEREE OF A
CHECK, WHO TAKES IT IN GOOD FAITH AND FOR VALUE WITHOUT NOTICE THAT THE
INDORSEMENT OF A PAYEE'S NAME WAS FORGED OR NOTICE OF OTHER DEFECT, AND
WITHOUT NEGLIGENCE OR FRAUD ON HIS OWN PART, ACQUIRES TITLE TO THE
INSTRUMENT AND THE RIGHT TO COLLECT IT AND RETAIN THE PROCEEDS. IN
ACCORDANCE WITH THIS PRINCIPLE, CAPTAIN BARHANOVIC WAS ALLOWED THE
PROCEEDS OF 12 OF THE 18 CHECKS ORIGINALLY INVOLVED.
THE REMAINING SIX CHECKS CANNOT BE HELD EVEN TO APPEAR TO BEAR THE
PAYEE'S INDORSEMENTS AND, ACCORDINGLY, CAPTAIN BARHANOVIC'S CLAIM AS A
BONA FIDE HOLDER THEREOF WAS PROPERLY DISALLOWED. FURTHERMORE, A
RELEASE BY THE PAYEE NOW STATING THAT THEY HAD RECEIVED THE PROCEEDS OF
THE CHECKS AND HAVE NO FURTHER INTEREST THEREIN COULD NOT ESTABLISH ANY
RIGHTS IN THE CLAIMANT ON HAVING TAKEN THE CHECKS UNDER CIRCUMSTANCES
SUCH AS TO CONSTITUTE HIM A BONA FIDE HOLDER.
THEREFORE, AND SINCE THE RECORD CONTAINS NOTHING, OTHER THAN THE
CHECKS INVOLVED, THAT WOULD FORM THE BASIS OF A CLAIM AGAINST THE UNITED
STATES, SUCH RELEASES AS YOU PROPOSE TO OBTAIN FROM THE PAYEES WOULD
NOT, ALONE, BE OF ANY VALUE.
OUR SETTLEMENT OF MARCH 19, 1959, DISALLOWING PAYMENT OF THE SIX
CHECKS IN QUESTION IS SUSTAINED.
B-139042, JUL. 6, 1959
TO THE HONORABLE SUMNER G. WHITTIER:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 10, 1959, REQUESTING
RECONSIDERATION OF DECISIONS OF OUR OFFICE DATED APRIL 14, 1959, AND MAY
21, 1959, REGARDING THE INTERPRETATION OF THE PROVISIONS OF VETERANS
ADMINISTRATION CONTRACT V1006C-319 WITH THE FRANCHI CONSTRUCTION
COMPANY, INC., FOR CONSTRUCTION AT THE VETERANS ADMINISTRATION HOSPITAL,
BEDFORD, MASSACHUSETTS, IN THE MATTER OF PAYMENT THEREUNDER FOR ROCK
EXCAVATION. IT WAS AGREED AT A CONFERENCE ON MAY 27, 1959, THAT WE
WOULD RECONSIDER THE INTERPRETATION GIVEN IN OR DECISIONS TO THE EFFECT
THAT THE CONTRACTOR WOULD BE ENTITLED TO AN EQUITABLE ADJUSTMENT IN THE
CONTRACT PRICE WITH RESPECT TO ALL ROCK (AS DEFINED IN PARAGRAPH 1-14 OF
THE SPECIFICATIONS) ENCOUNTERED AND EXCAVATED WITHIN THE "ROCK PAYMENT
LINES" AS SPECIFIED IN PARAGRAPH 1-19 OF THE CONTRACT SPECIFICATIONS.
AS INDICATED IN YOUR LETTER, IT WAS THE VIEW OF YOUR ENGINEERING
PERSONNEL WHO ATTENDED THE CONFERENCE OF MAY 27, 1959, THAT THE CONTRACT
INTERPRETED IN ITS ENTIRETY, IN THE LIGHT OF THE ENGINEERING ASPECTS
THEREOF, AND THE REFERENCE IN THE SPECIFICATIONS TO ARTICLE 4, CHANGED
CONDITIONS, OF THE CONTRACT, REQUIRED THE CONTRACTOR TO REMOVE THE
QUANTITIES OF SPECIFICATION ROCK SHOWN ON THE DRAWINGS WITHOUT
ADDITIONAL PAYMENT; BUT THAT AN ADJUSTMENT IN THE CONTRACT PURSUANT TO
ARTICLE 4 IS INDICATED FOR ADDITIONAL SPECIFICATION ROCK ENCOUNTERED AND
REMOVED, SUBJECT, OF COURSE, TO SET-OFF FOR A CORRESPONDING QUANTITY OF
EARTH NOT REMOVED.
IT IS REPORTED THAT THE QUANTITIES OF SPECIFICATION ROCK TO BE
EXCAVATED AS SHOWN ON THE CONTRACT DRAWINGS TOTAL 4,340 CUBIC YARDS;
THAT THE QUANTITIES OF SUCH ROCK ACTUALLY ENCOUNTERED AND EXCAVATED WILL
APPROXIMATE 8,000 CUBIC YARDS; THAT STUDIES BY THE VETERANS
ADMINISTRATION INDICATE A FAIR AVERAGE PRICE FOR THIS ROCK REMOVAL,
INCLUDING CONTRACTOR'S OVERHEAD AND PROFIT, TO BE IN THE NEIGHBORHOOD OF
$15 PER CUBIC YARD; AND THAT THE CONTRACTOR'S SUBMISSIONS INDICATE
CLAIMS, EXCLUSIVE OF OVERHEAD AND PROFIT, OF $28 AND $36 PER CUBIC YARD,
RESPECTIVELY, FOR OPEN CUT ROCK EXCAVATION AND EXCAVATION OF TRENCH
ROCK.
IT IS STATED IN YOUR LETTER THAT IN THE COURSE OF THE CONFERENCE YOUR
ENGINEERING PERSONNEL REVIEWED THE PLANS AND SPECIFICATIONS WITH OUR
OFFICIALS WITH PARTICULAR REFERENCE TO THE ENGINEERING ASPECTS THEREOF,
POINTING OUT THE REFERENCES ON CONTRACT DRAWINGS TO QUANTITIES AND
CHARACTER OF ROCK TO BE EXCAVATED AND CALLING ATTENTION TO THE LOGS OF
CORE BORINGS SHOWN DIAGRAMMATICALLY THEREON INDICATING THE LOCATIONS AND
ELEVATIONS AT WHICH ROCK WAS TO BE ANTICIPATED. YOU REFER ALSO TO THE
DISCUSSION OF THE TECHNICAL SPECIFICATION PROVISIONS RELATING TO ROCK
EXCAVATION, WITH SPECIAL ATTENTION BEING GIVEN TO THE INTERPRETATION TO
BE PLACED UPON PARAGRAPH 1-13 THEREOF IN THE LIGHT OF THE DATA GIVEN ON
THE DRAWINGS AND THE REFERENCE IN PARAGRAPH 1-13 TO THE MACHINERY FOR
ADJUSTMENT IN THE CONTRACT PROVIDED IN ARTICLE 4 FOR SUBSURFACE OR
LATENT PHYSICAL CONDITIONS AT THE SITE DIFFERING MATERIALLY FROM THOSE
INDICATED IN THE CONTRACT, REFERRED TO SPECIFICALLY IN PARAGRAPH 1-13.
FURTHER, YOU STATE THAT YOUR PERSONNEL REVIEWED WITH OUR OFFICIALS THE
ABSTRACT OF BIDS RECEIVED FOR THE PROJECT AND THE CONTRACTOR'S COST
BREAKDOWN OF JULY 17, 1958, SUBMITTED AFTER AWARD OF CONTRACT FOR
PARTIAL PAYMENT PURPOSES. AS SUGGESTED, SUCH DATA WAS NOT PREVIOUSLY
FURNISHED TO OUR OFFICE, NOR HAD THE COST ASPECTS OF THE MATTER BEEN
DISCUSSED WITH OUR LEGAL STAFF PRIOR TO THE CONFERENCE OF MAY 27, 1959.
PARAGRAPH 1-13 OF THE CONTRACT SPECIFICATIONS PROVIDES AS FOLLOWS:
"ROCK ESTIMATES: SHOULD ROCK (AS HEREINAFTER DEFINED) BE
ENCOUNTERED, THE TOTAL AMOUNT OF ROCK IN PLACE SHALL BE DETERMINED AS
HEREINAFTER SPECIFIED. ADJUSTMENT FOR THE EXCAVATION OF SUCH ROCK WILL
BE MADE AS PROVIDED IN ARTICLES 3 AND 4 OF THE CONTRACT.'
ARTICLES 3 AND 4 DO NOT SPECIFICALLY RELATE TO ROCK EXCAVATION BUT
CONCERN CHANGES AND CHANGED CONDITIONS AND EQUITABLE ADJUSTMENTS
THEREFOR. SINCE PARAGRAPH 1-13 OF THE CONTRACT SPECIFICATIONS DOES NOT
OTHERWISE INDICATE THAT A LIMITATION WOULD BE PLACED UPON THE QUANTITIES
OF CLASSIFICATION ROCK WHICH WOULD BE FOR CONSIDERATION IN DETERMINING
THE AMOUNT OF A PRICE ADJUSTMENT FOR ENCOUNTERING SUCH ROCK, THERE WOULD
SEEM TO BE A REASONABLE BASIS FOR THE CONCLUSION THAT THE REFERENCE TO
ARTICLES 3 AND 4 WAS DESIGNED SOLELY FOR THE PURPOSE OF INDICATING THE
PROCEDURES WHICH WOULD BE FOLLOWED IN THE MAKING OF ANY SUCH PRICE
ADJUSTMENT AND THAT, IN NO EVENT, WOULD THE ADJUSTMENT BE MADE OTHER
THAN ON THE BASIS OF INCREASED COSTS OF PERFORMANCE DUE TO THE
ENCOUNTERING OF ROCK AS CLASSIFIED IN PARAGRAPH 1-14 OF THE
SPECIFICATIONS.
ON THE OTHER HAND, THE REFERENCE TO ARTICLES 3 AND 4 COULD BE
CONSTRUED AS MEANING ALSO THAT THE CONTRACT PRICE WAS TO INCLUDE PAYMENT
FOR ALL CLASSIFICATION ROCK UP TO THE TOTAL OF THE ESTIMATED QUANTITIES
SET FORTH ON THE CONTRACT DRAWINGS, SINCE THE EXCAVATION OF THE
ESTIMATED QUANTITIES OF SPECIFICATION ROCK CERTAINLY WOULD NOT
ORDINARILY HAVE CONSTITUTED CHANGES OR CHANGED CONDITIONS WITHIN THE
MEANING OF ARTICLES 3 AND 4 OF THE CONTRACT.
THE CONTRACTOR'S COST BREAKDOWN OF JULY 17, 1958, INCLUDES THE SUMS
OF $111,709 AND $59,089 FOR "EXCAVATION BLDG" AND "ROADS, WALKS,
GRADING.' AT THE CONFERENCE OF MAY 27, 1959, YOUR REPRESENTATIVES
QUESTIONED THESE AMOUNTS AS BEING UNREASONABLY HIGH, PARTICULARLY IF, AS
ALLEGED, THE CONTRACTOR HAD NOT INCLUDED IN ITS BID PRICE AN AMOUNT
BELIEVED TO BE SUFFICIENT TO COVER THE EXCAVATION OF THE ESTIMATED
QUANTITIES OF CLASSIFICATION ROCK AS SHOWN ON THE CONTRACT DRAWINGS.
ALSO, IT APPEARS THAT THE CONTRACTOR HAS NOT BEEN ABLE TO FURNISH
INFORMATION TO SUBSTANTIATE SUCH COST FIGURES.
ALTHOUGH THE CONTRACT PROVISIONS RESPECTING PAYMENT FOR
CLASSIFICATION ROCK MAY BE CONSIDERED TO BE AMBIGUOUS IN CERTAIN
RESPECTS, THE PROBABILITY THAT THE CONTRACTOR INTENDED THAT ITS BID
PRICE WOULD INCLUDE THE COST OF EXCAVATING THE ESTIMATED QUANTITIES OF
CLASSIFICATION ROCK WOULD SEEM TO WARRANT THE EXCLUSION OF SUCH
ESTIMATED QUANTITIES IN COMPUTING THE PRICE ADJUSTMENT DUE UNDER
PARAGRAPH 1-13 OF THE CONTRACT SPECIFICATIONS. SPECIFICALLY, YOU ARE
ADVISED THAT, IN THE CIRCUMSTANCES, THERE NOW APPEARS TO BE ADEQUATE
JUSTIFICATION FOR ADOPTION OF THE INTERPRETATION PLACED UPON THE
CONTRACT TERMS BY YOUR ENGINEERING PERSONNEL.
THE CONTRACT SPECIFICATIONS, DRAWINGS, ABSTRACT OF BIDS AND
CONTRACTOR'S COST BREAKDOWN ARE RETURNED HEREWITH.
B-139497, JUL. 6, 1959
TO THE FINANCE AND ACCOUNTING OFFICER, HEADQUARTERS, FORT BENJAMIN
HARRISON:
ON MARCH 11, 1959, THE ASSISTANT FINANCE AND ACCOUNTING OFFICER
TRANSMITTED TO US A VOUCHER IN THE AMOUNT OF $10.19 REPRESENTING
COMPENSATION FOR JANUARY 31, 1958, BASED UPON THE FACTS AND
CIRCUMSTANCES RELATED HEREINAFTER. OUR DECISION IS REQUESTED WHETHER
THE VOUCHER MAY BE PAID. ALSO YOU ASK WHETHER A TECHNICIAN WHOSE
EMPLOYMENT TERMINATED JANUARY 24 AND WHOSE TERMINAL LEAVE EXPIRED 7
HOURS PRIOR TO CLOSE OF BUSINESS JANUARY 31 IS ENTITLED TO FULL MONTH'S
PAY OR SHOULD HIS PAY BE REDUCED BY 7 HOURS. THE VOUCHER HAS NO
CONNECTION WITH THIS QUESTION.
THE RECORD SHOWS THAT THE TECHNICIAN, AN EMPLOYEE OF THE ARMY
NATIONAL GUARD, INDIANA, TO WHOM THE PAYMENT IS PROPOSED, WAS IN A LEAVE
WITHOUT PAY STATUS ATTENDING A SERVICE SCHOOL FROM JANUARY 1 THROUGH 29,
1958. PRESUMABLY, HIS ATTENDANCE THEREAT WAS IN A MILITARY CAPACITY.
HE RETURNED TO WORK ON THE 30TH OF JANUARY FOR WHICH DAY PAYMENT HAS
BEEN MADE. HE ALSO WORKED ON THE 31ST DAY OF THAT MONTH AND THE
SUBMITTED VOUCHER REPRESENTS COMPENSATION THEREFOR. BECAUSE TECHNICIANS
ARE PAID UPON THE BASIS OF A 30-DAY MONTH--- UNDER THE PROVISIONS OF
5 U.S.C.A. 84, THE ACT OF JUNE 30, 1906, 34 STAT. 763, AS AMENDED BY THE
ACT OF JUNE 30, 1945, 59 STAT. 303--- YOU HAVE DOUBT WHETHER THE VOUCHER
MAY BE PAID.
5 U.S.C.A. 84, PROVIDES, IN PERTINENT PART, AS FOLLOWS:
"WHERE THE COMPENSATION OF ANY PERSON IN THE SERVICE OF THE UNITED
STATES * * * IS ANNUAL OR MONTHLY THE FOLLOWING RULES FOR DIVISION OF
TIME AND COMPUTATION OF PAY FOR SERVICES RENDERED ARE ESTABLISHED:
ANNUAL COMPENSATION SHALL BE DIVIDED INTO TWELVE EQUAL INSTALLMENTS, ONE
OF WHICH SHALL BE THE PAY FOR EACH CALENDAR MONTH; AND IN MAKING
PAYMENTS FOR A FRACTIONAL PART OF A MONTH ONE THIRTIETH OF ONE OF SUCH
INSTALLMENT, OR OF A MONTHLY COMPENSATION, SHALL BE THE DAILY RATE OF
PAY. FOR THE PURPOSE OF COMPUTING SUCH COMPENSATION AND FOR COMPUTING
TIME FOR SERVICES RENDERED DURING A FRACTIONAL PART OF A MONTH IN
CONNECTION WITH ANNUAL OR MONTHLY COMPENSATION, EACH AND EVERY MONTH
SHALL BE HELD TO CONSIST OF THIRTY DAYS, WITHOUT REGARD TO THE ACTUAL
NUMBER OF DAYS IN ANY CALENDAR MONTH, THUS EXCLUDING THE 31ST OF ANY
CALENDAR MONTH FROM THE COMPUTATION * * *. ANY SUCH PERSON ENTERING THE
SERVICE OF THE UNITED STATES DURING A THIRTY-ONE DAY MONTH AND SERVING
UNTIL THE END THEREOF SHALL BE ENTITLED TO PAY FOR THAT MONTH FROM THE
DATE OF ENTRY TO THE 30TH DAY OF SAID MONTH, BOTH DATES INCLUSIVE; * *
* PROVIDED, THAT FOR ONE DAY'S UNAUTHORIZED ABSENCE ON THE 31ST DAY OF
ANY CALENDAR MONTH ONE DAY'S PAY SHALL BE FORFEITED.'
NATIONAL GUARD REGULATIONS 75-16, DATED JANUARY 7, 1953, IN FORCE AND
EFFECT AT THE TIME THE SERVICES HERE INVOLVED WERE RENDERED PROVIDE, IN
PERTINENT PART, AS FOLLOWS:
"3. DEFINITIONS--- THE FOLLOWING DEFINITIONS ARE APPLICABLE;
"F. NATIONAL GUARD CIVILIAN PERSONNEL EMPLOYED UNDER THE AUTHORITY
OF THESE REGULATIONS ARE CONSIDERED TO BE EMPLOYEES OF THE SEVERAL
STATES, * * * ALTHOUGH PAID FROM FEDERAL FUNDS APPROPRIATED FOR THE
NATIONAL GUARD (21 COMP. GEN. 305). AS SUCH, THEY ARE NOT USUALLY
SUBJECT TO THE REGULATIONS GOVERNING FEDERAL CIVIL SERVICE EMPLOYEES,
HOWEVER, THE BASIC PERSONNEL POLICIES APPLICABLE TO FEDERAL CIVIL
SERVICE EMPLOYEES MAY BE USED AS A GUIDE PENDING A DECISION BY THE
CHIEF, NATIONAL GUARD BUREAU ON THE MATTERS NOT COVERED IN THESE
REGULATIONS OR CURRENT DIRECTIVES.
"11. PAYMENT--- A. NATIONAL GUARD CIVILIAN PERSONNEL, WITH THE
EXCEPTION OF THOSE IN THE DISTRICT OF COLUMBIA, WILL BE PAID
SEMI-MONTHLY OR MONTHLY BY THE ACCOUNTING AND DISBURSING OFFICER
DESIGNATED TO PAY NATIONAL GUARD VOUCHERS FOR THE STATE CONCERNED.
NATIONAL GUARD CIVILIAN PERSONNEL OF THE DISTRICT OF COLUMBIA WILL BE
PAID ON A BI-WEEKLY BASIS. * * *.'
WHILE THE ABOVE REGULATIONS POINT OUT THAT SUCH PERSONNEL ARE NOT
EMPLOYEES OF THE FEDERAL GOVERNMENT AS DETERMINED BY OUR DECISION, 21
COMP. GEN. 305, THE EMPLOYEE HERE IS PAID ON A 30-DAY BASIS UNDER THE
LANGUAGE OF 5 U.S.C.A. 84 QUOTED ABOVE. WE ARE, THEREFORE, REQUIRED TO
CONCLUDE THAT PAYMENT FOR JANUARY 31, 1958, AS PROPOSED ON THE SUBMITTED
VOUCHER, IS NOT AUTHORIZED. SEE 15 COMP. GEN. 208. THEREFORE, THE
VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE PAID.
UNDER THE AUTHORITY OF 31 U.S.C.A. 74, DISBURSING OFFICERS ARE
ENTITLED TO DECISIONS ONLY UPON SPECIFIC QUESTIONS INVOLVED IN A VOUCHER
PROPERLY BEFORE THEM FOR PAYMENT. 38 COMP. GEN. AT PAGE 6 AND CASE
CITED THEREIN. HENCE, WE MAY RENDER NO AUTHORITATIVE ANSWER TO YOUR
SECOND QUESTION.
B-139917, JUL. 6, 1959
TO THE ATTORNEY GENERAL:
BY LETTER OF MAY 28, 1959, GCD:RM 77-44-181, THE ASSISTANT ATTORNEY
GENERAL, CIVIL DIVISION, REQUESTED OUR COMMENTS AS TO WHETHER
CONSTRUCTION OF A PUBLIC WORK UTILIZING PLANS DISSIMILAR TO THOSE
ORIGINALLY PREPARED WITH FUNDS ADVANCED UNDER TITLE V OF THE WAR
MOBILIZATION AND RECONVERSION ACT OF 1944, 50 U.S.C. 1671, 1946 ED.,
SHOULD BE CONSIDERED WITHIN THE AREA OF DE MINIMIS MENTIONED IN UNITED
STATES V. CITY OF WENDELL, IDAHO, 237 F.2D 51.
THE RECORD SHOWS THAT THE TOWN OF FROID, MONTANA, WAS ADVANCED $5,231
FOR THE PREPARATION OF PLANS FOR CONSTRUCTION OF A PUBLIC WORK DESCRIBED
AS "WATER SUPPLY, STORAGE AND DISTRIBUTION.' IT
APPEARS THAT THE TOWN CONSTRUCTED SUCH A PUBLIC WORK BUT THAT THE
ORIGINAL PLANS FOR WHICH THE ADVANCE WAS RECEIVED WERE NOT UTILIZED,
CONSTRUCTION HAVING BEEN ACCOMPLISHED UNDER A SECOND SET OF PLANS
SUBSEQUENTLY PURCHASED. THE ADMINISTRATIVE REPORT OF COMPARISON MADE
BETWEEN THE ORIGINAL PLANS AND THE PLANS USED CONCLUDES THAT "THEY
DIFFER CONSIDERABLY IN THE DESIGN, THE LOCATION OF THE MAIN SUPPLY LINE
FROM THE WELL TO THE POINT OF INTERSECTION WHERE THE TOWN DISTRIBUTES
WATER, (AND) THE SIZE OF LINES, VALVES, FITTINGS, AND FIRE HYDRANTS.' IT
IS OBVIOUS, HOWEVER, FROM REVIEW OF THE REPORT OF COMPARISON, THAT THE
PROJECT CONSTRUCTED, WHILE VARYING IN DESIGN AND LOCATION OF COMPONENT
PARTS FROM THE ORIGINAL PLANS, IS ESSENTIALLY THE "WATER SUPPLY, STORAGE
AND DISTRIBUTION" SYSTEM CONTEMPLATED BY THE TOWN OF FROID WHEN THE
ADVANCE WAS REQUESTED.
THE REPORT SPEAKS ONLY OF THE WATER SUPPLY AND DISTRIBUTION SYSTEM
FOR THE TOWN OF FROID, MONTANA.
NOWHERE IS THERE INDICATION THAT MORE THAN ONE SYSTEM IS INVOLVED.
SECTION 501 (C) OF THE ACT, 50 U.S.C. 1671 (C), 1946 ED., PROVIDES THAT
"ADVANCES UNDER THIS SECTION TO ANY PUBLIC AGENCY SHALL BE REPAID BY
SUCH AGENCY IF AND WHEN THE CONSTRUCTION OF PUBLIC WORKS SO PLANNED IS
UNDERTAKEN.'
THE WENDELL CASE INVOLVED THE QUESTION OF WHETHER A PAVING PROJECT
ACTUALLY ACCOMPLISHED WAS ESSENTIALLY THE SAME AS THE PROJECT FOR WHICH
AN ADVANCE WAS REQUESTED. SINCE THERE ARE USUALLY NUMEROUS POTENTIAL
PAVING PROJECTS IN A CITY, THE SPECIFIC AREAS COVERED OR THE SPECIFIC
STREET BLOCKS INCLUDED IN EACH PROJECT WERE THE FACTORS WHICH WOULD
CONCLUSIVELY DETERMINE WHETHER THE COMPLETED PROJECT WAS THE SAME AS
ORIGINALLY PLANNED. IT WAS IN THIS CONTEXT THAT THE COURT STATED THAT A
PAVING PROJECT ON THE WEST SIDE OF TOWN WOULD NOT BE THE SAME AS A
PAVING PROJECT ON THE EAST SIDE OF TOWN; OR IF THERE WERE A DE MINIMIS
OF OVERLAPPING OF THE AREAS THE PROJECTS WOULD NOT BE THE SAME. IN OUR
LETTER TO YOU DATED MAY 1, 1958, B-134457 (YOUR REFERENCE GCD:RM
77-59-142), WE DISCUSSED IN CONSIDERABLE DETAIL OUR VIEWS ON THE
APPLICATION OF THE WENDELL CASE AND CONCLUDED THAT WHERE AN ADVANCE FOR
PLANNING WATER FACILITIES OBVIOUSLY CONTEMPLATED THE CONSTRUCTION OF
ONLY ONE SUCH FACILITY TO SERVE THE ENTIRE CITY, THE LOCATION OF THE
PROJECT WOULD NOT BE CONTROLLING AS TO WHETHER CONSTRUCTION THEREOF WAS
PURSUANT TO THE GENERAL OVERALL PLAN FOR WHICH THE ADVANCE HAD BEEN
MADE.
SUBSEQUENT TO OUR LETTER, AND IN ACCORD THEREWITH, IT WAS HELD IN
UNITED STATES V. CITY OF WILLIS, TEXAS, 164 F.SUPP. 324, THAT EVEN
THOUGH CONSTRUCTION PLANS FOR WHICH MONEY ADVANCED WAS USED WERE NOT
CONSIDERED FEASIBLE BY THE CITY AND WERE NOT USED AND PLANS PREPARED BY
OTHER ENGINEERS WERE EVENTUALLY USED IN CONSTRUCTION OF A SANITARY SEWER
SYSTEM AND DISPOSAL PLANT, SUMS ADVANCED BY FEDERAL WORKS ADMINISTRATOR
WERE REQUIRED TO BE REPAID. THE CITY OF WILLIS (AS DID THE TOWN OF
FROID) DENIED THAT ANY CONSTRUCTION WAS EVER UNDERTAKEN OR STARTED OR
THAT ANY CONTRACT WAS EVER LET UNDER THE ORIGINAL PLANS, FOR WHICH THE
MONEY WAS ADVANCED, AND THAT IT THEREFORE WAS NOT LIABLE FOR THE MONEY
ADVANCED BY THE UNITED STATES. RELYING ON THE WENDELL CASE
AND THE CASE OF UNITED STATES V. BOARD OF EDUCATION OF CITY OF
BISMARCK, 126 F.SUPP. 338, THE COURT HELD THAT REPAYMENT OF THE ADVANCE
MATURED WHEN THE CITY UNDERTOOK CONSTRUCTION OF ITS SANITARY SEWER
SYSTEM AND DISPOSAL PLANT. THE COURT QUOTED THE CONCLUSION IN THE
BISMARCK CASE THAT THE PHRASE "PUBLIC WORK SO PLANNED," AS USED IN THE
ACT, RELATES TO THE GENERAL PLAN CONTEMPLATED BY THE APPLICANT WHEN
REQUESTING AN ADVANCE OF FUNDS FROM THE GOVERNMENT.
THE SITUATION IN THE WILLIS CASE IS COMPARABLE TO THAT INVOLVED HERE
AND THE HOLDING THEREIN LEAVES LITTLE ROOM FOR DOUBT THAT THE INSTANT
CASE DOES NOT FALL WITHIN THE AREA OF DE MINIMIS MENTIONED IN THE
WENDELL CASE.
B-139931, JUL. 6, 1959
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO A LETTER DATED JUNE 16, 1959 (R11.2 L8/L8)
NT4-28), WITH ENCLOSURES, FROM THE ASSISTANT CHIEF FOR PURCHASING,
BUREAU OF SUPPLIES AND ACCOUNTS, SUBMITTING FOR CONSIDERATION THE MATTER
OF A MISTAKE IN BID ALLEGED BY THE AIRCRAFT ENGINE PARTS COMPANY,
BURBANK, CALIFORNIA, AFTER THE AWARD OF SALES CONTRACT NO. N228S-39488
(SALES INVITATION NO. B-208-59-228) BY THE NAVAL SUPPLY CENTER, OAKLAND,
CALIFORNIA. IN VIEW OF THE FACTS DISCLOSED BY THE RECORD IN THIS CASE,
OUR DECISION IS REQUESTED AS TO WHETHER RELIEF PROPERLY MAY BE DENIED,
SINCE THE ERROR, IF ANY, APPEARS TO BE UNILATERAL.
THE RECORD SHOWS THAT BY THE CITED INVITATION, DATED APRIL 15, 1959,
THE DISPOSAL DEPARTMENT, NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA,
REQUESTED BIDS FOR THE PURCHASE OF CERTAIN GOVERNMENT-OWNED SURPLUS
PROPERTY, CONSISTING OF AVIATION MATERIALS LOCATED AT THE NAVAL SUPPLY
ANNEX, STOCKTON, CALIFORNIA, THE BIDS TO BE OPENED AT 1 P.M. ON MAY 6,
1959. TWO BIDS WERE RECEIVED FOR ITEM 76, THE HIGHER BEING THAT
SUBMITTED BY THE AIRCRAFT ENGINE PARTS COMPANY AT THE PRICE OF $198.92,
AND THE OTHER BY CAL METALS AT THE PRICE OF $90.97. UNDER DATE OF MAY
12, 1959,
A CONTRACT WAS AWARDED TO THE AIRCRAFT ENGINE PARTS COMPANY ON THE
BASIS THAT ITS BID WAS THE HIGHEST RECEIVED.
THE CONTRACTING OFFICER REPORTS THAT BY A COMMUNICATION DATED MAY 15,
1959, THE CONTRACTOR ADVISED THAT ITS BID OF $198.92 WAS INTENDED FOR
ITEM 75, AND THAT THEREUPON THE CONTRACTOR WAS REQUESTED TO FURNISH
WRITTEN CONFIRMATION OF THE ALLEGED ERROR TOGETHER WITH ANY
SUBSTANTIATING EVIDENCE AVAILABLE. BY A LETTER OF THE SAME DAY THE
CONTRACTOR ADVISED THAT AN ERROR HAD BEEN MADE IN TRANSFERRING THE
FIGURES FROM A WORKSHEET. IN SUPPORT OF THE ALLEGATION OF ERROR, THE
CONTRACTOR SUBMITTED A WORKSHEET INDICATING AN INTENDED BID PRICE OF
$198.92 FOR ITEM 75--- NO ENTRY APPEARING THEREON FOR ITEM 76. THE
CONTRACTING OFFICER POINTED OUT THAT THE CONTRACTOR'S BID OF $198.92 FOR
ITEM 76 IS APPROXIMATELY 2.186 TIMES HIGHER THAN THE NEXT HIGH BID
RECEIVED BUT THAT, HOWEVER, THERE WAS NO EVIDENCE ON THE FACE OF THE BID
TO ALERT HIM TO THE POSSIBILITY OF ERROR. ON THE BASIS OF THE FACTS IN
THIS CASE, THE CONTRACTING OFFICER EXPRESSED THE VIEW THAT THE
CONTRACTOR DID MAKE AN ERROR IN ITS BID AS CLAIMED, AND HE RECOMMENDED
THAT THE AWARD OF ITEM 76 TO THE AIRCRAFT ENGINE PARTS COMPANY BE
CANCELLED WITHOUT PENALTY TO THE COMPANY.
THE FACT THAT THERE WAS A CONSIDERABLE VARIANCE BETWEEN THE TWO BIDS
RECEIVED FOR ITEM 76 APPEARS NOT TO BE A MATTER FOR CONSIDERATION IN THE
INSTANT CASE. IT HAS BEEN HELD BY OUR OFFICE IN NUMEROUS DECISIONS THAT
IN VIEW OF THE WIDE RANGE OF PRICES ORDINARILY RECEIVED ON SALVAGE,
WASTE AND SURPLUS PROPERTY, A MERE PRICE DIFFERENCE WOULD NOT
NECESSARILY PLACE A CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF
ERROR, AS WOULD SIMILAR PRICE DIFFERENCES ON NEW EQUIPMENT OR SUPPLIES
TO BE FURNISHED TO THE GOVERNMENT. THIS POSITION IS BASED UPON THE FACT
THAT PRICES OFFERED TO THE GOVERNMENT FOR ITS PROPERTY ARE BASED MORE OR
LESS UPON THE USE TO WHICH THE PROPERTY IS TO BE PUT BY A PARTICULAR
BIDDER OR UPON THE RISK OF RESALE THE BIDDER MIGHT WISH TO TAKE. SEE 16
COMP. GEN. 596; 17 ID. 388; ID. 601; ID. 976; 28 ID. 261, AND ID.
550.
THE PRIMARY QUESTION FOR CONSIDERATION IS NOT WHETHER AN ERROR WAS
MADE IN THE BID, BUT WHETHER A VALID AND BINDING CONTRACT WAS
CONSUMMATED BY THE ACCEPTANCE THEREOF. THE INVITATION ISSUED IN THIS
CASE WAS CLEAR AND UNAMBIGUOUS AS TO THE MATERIALS OFFERED FOR SALE.
THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE
TO THE INVITATION WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION
COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. IF AN ERROR WAS MADE IN
THE PREPARATION OF THE BID, AS ALLEGED, IT PROPERLY MAY BE ATTRIBUTE
SOLELY TO THE CONTRACTOR'S NEGLIGENCE, AND, SINCE THE ERROR ON WHICH THE
CLAIM FOR RELIEF IS BASED WAS UNILATERAL, NOT MUTUAL, THE CONTRACTOR IS
NOT ENTITLED TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102
C.CLS. 249, 259, AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505,
507.
THE CONTRACTING OFFICER REPORTS THAT THE AMOUNT OF $39.78,
REPRESENTING TWENTY PERCENT OF THE TOTAL AMOUNT BID ON ITEM 76, HAS BEEN
RETAINED PENDING SETTLEMENT OF THE CLAIM. THAT PROCEDURE APPEARS TO BE
AUTHORIZED BY PARAGRAPH 18 OF THE GENERAL SALE TERMS AND CONDITIONS AND
IS APPROVED.
B-139963, JUL. 6, 1959
TO MR. JAMES L. CHERRY:
REFERENCE IS MADE TO YOUR LETTERS OF MARCH 6, 1959, AND APRIL 16,
1959, FORWARDED TO THIS OFFICE BY THE FINANCE CENTER, UNITED STATES
ARMY, ON MAY 18, 1959, IN EFFECT REQUESTING RECONSIDERATION OF OUR
SETTLEMENT OF JANUARY 29, 1959, WHICH DISALLOWED YOUR CLAIM FOR REFUND
OF MONEY BELIEVED TO HAVE BEEN DEPOSITED IN THE SOLDIERS' DEPOSITS.
AS A BASIS FOR YOUR CLAIM, YOU SAY THAT DURING THE SPRING OF 1943,
WHILE YOU WERE HOSPITALIZED IN A UNITED STATES ARMY HOSPITAL NEAR
SYDNEY, AUSTRALIA, YOU TURNED OVER TO SERGEANT NICK POSEY, A FINANCE
OFFICER AT THE HOSPITAL, 150 POUNDS STERLING FOR DEPOSIT IN A SOLDIERS'
DEPOSIT ACCOUNT, AND THAT THE RECEIPT WHICH SERGEANT POSEY GAVE YOU FOR
THE MONEY HAS BEEN LOST.
YOUR CLAIM WAS DENIED BY THE SETTLEMENT OF JANUARY 29, 1959, AS A
CLAIM BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C.
237, DUE TO YOUR FAILURE TO FILE YOUR CLAIM IN THIS OFFICE WITHIN 10
YEARS OF THE DATE OF ITS ACCRUAL. SINCE THE BARRING ACT DOES NOT APPLY
TO AMOUNTS DEPOSITED IN THE SOLDIERS' DEPOSIT ACCOUNT THAT ACTION WAS
IMPROPER AND YOUR CLAIM SHOULD HAVE BEEN SETTLED ON ITS MERITS. A
SEARCH OF THE APPROPRIATE SOLDIERS' DEPOSIT RECORDS FAILS TO DISCLOSE
THAT ANY MONEY WAS EVER DEPOSITED BY YOU OR IN YOUR NAME, AND IN THE
ABSENCE OF A RECEIPT FOR THE DEPOSIT WE HAVE NO MEANS OF VERIFYING THE
TRANSACTION.
WE ARE ADVISED THAT AT THE TIME WHEN YOU SAY YOU GAVE SERGEANT POSEY
THE 150 POUNDS STERLING FOR DEPOSIT IT WAS THE PRACTICE TO MAINTAIN
DEPOSITORY ACCOUNTS AT MILITARY HOSPITALS FOR THE PURPOSE OF
SAFEGUARDING MONIES OF PATIENTS. THESE ACCOUNTS WERE MAINTAINED BY ARMY
PERSONNEL, BUT THE FUNDS THEREIN WERE NOT OFFICIAL MONIES AND WERE TO BE
RETURNED TO THE PATIENT ON DISCHARGE OR TRANSFER FROM THE HOSPITAL.
POSSIBLY THE MONEY IN QUESTION WAS PLACED IN SUCH AN ACCOUNT. HOWEVER,
THE RECORDS OF SUCH ACCOUNTS, WHICH ARE RETAINED BY THE DEPARTMENT OF
THE ARMY, ARE DESTROYED PURSUANT TO LAW AFTER A 12 YEAR PERIOD UNDER
CURRENT RECORD DISPOSAL PROCEDURES. SINCE THE RECORDS PERTAINING TO
SUCH ACCOUNTS SET UP IN 1943 HAVE NOW BEEN DESTROYED WE ARE UNABLE TO
ADVISE YOU AS TO WHETHER YOUR MONEY WAS HANDLED AND REPAID TO YOU UNDER
THAT PROCEDURE.
WE PROPERLY MAY NOT AUTHORIZE THE REFUND OF AN AMOUNT FROM THE
SOLDIERS' DEPOSIT ACCOUNT, OR OTHER DEPOSITORY ACCOUNT, IN THE ABSENCE
OF SOME OFFICIAL RECORD SHOWING THAT SUCH AMOUNT WAS RECEIVED BY THE
GOVERNMENT FOR DEPOSITING IN THAT ACCOUNT. NO OFFICIAL RECORD OF YOUR
DEPOSIT HAS BEEN FOUND AND APPARENTLY, AT THIS LATE DATE, NONE IS IN
EXISTENCE. ACCORDINGLY, UNLESS YOU ARE ABLE TO FURNISH SOME RECORD
EVIDENCE OF THE DEPOSIT WE CANNOT GIVE YOUR CLAIM FAVORABLE
CONSIDERATION.
B-110008, JUL. 2, 1959
TO MR. FRANZ O. WILLENBUCHER:
IN LETTER OF APRIL 9, 1959, YOU, AS ATTORNEY FOR LIEUTENANT COMMANDER
DANIEL E. WHELAN, JR., UNITED STATES COAST AND GEODETIC SURVEY, RETIRED,
REQUEST RECONSIDERATION OF THE ACTION TAKEN IN OUR SETTLEMENT DATED
MARCH 26, 1959, DISALLOWING HIS CLAIM FOR ADDITIONAL RETIRED PAY
BELIEVED DUE HIM SINCE JULY 1, 1953, THE EFFECTIVE DATE OF HIS REVERSION
TO INACTIVE STATUS ON THE RETIRED LIST.
THE SUBJECT OFFICER SERVED ON ACTIVE DUTY IN THE MILITARY FORCES OF
THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, AND IN THE COAST AND
GEODETIC SURVEY FROM JUNE 27, 1921, TO JULY 2, 1926, THE DATE OF HIS
RETIREMENT FOR PHYSICAL DISABILITY. HE WAS RECALLED TO ACTIVE DUTY IN
THE COAST AND GEODETIC SURVEY ON AUGUST 16, 1943, AND THEREAFTER
RELEASED TO AN INACTIVE STATUS ON THE RETIRED LIST EFFECTIVE JULY 1,
1953. IT APPEARS THAT PURSUANT TO HIS ELECTION MADE UNDER AUTHORITY OF
SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, TO
QUALIFY FOR DISABILITY RETIRED PAY UNDER THE PROVISIONS OF TITLE IV OF
THAT ACT, HE HAS RECEIVED DISABILITY RETIRED PAY EFFECTIVE FROM JULY 1,
1953, COMPUTED AS PROVIDED IN SECTION 402 (D), 63 STAT. 818, AT THE RATE
OF 60 PERCENT (REPRESENTING THE PERCENTAGE OF HIS DISABILITY) OF THE
MONTHLY BASIC PAY OF A LIEUTENANT COMMANDER WITH OVER 18, BUT NOT OVER
22, CUMULATIVE YEARS OF SERVICE, REFLECTING ALL CREDITABLE SERVICE AS OF
JULY 2, 1926, THE DATE OF HIS RETIREMENT, PLUS ALL HIS SUBSEQUENT ACTIVE
SERVICE TO JUNE 30, 1953.
IT IS ALLEGED BOTH IN THE PETITION NO. 469-57, NOW PENDING BEFORE THE
COURT OF CLAIMS (A MOTION TO DISMISS THE PETITION IS BEING HELD IN
ESCROW BY THE DEPARTMENT OF JUSTICE) AND IN THE CLAIM PRESENTED TO THIS
OFFICE, THAT BY REASON OF HAVING SERVED IN THE MILITARY FORCES OF THE
UNITED STATES PRIOR TO NOVEMBER 12, 1918, THE PLAINTIFF IS ENTITLED
UNDER AUTHORITY OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY
READJUSTMENT ACT OF 1942, 56 STAT. 368, 37 U.S.C. 115 (1946 EDITION),
TO COMPUTE HIS RETIRED PAY EFFECTIVE FROM JULY 1, 1953, AT THE RATE OF
75 PERCENT OF THE MONTHLY BASIC PAY PRESCRIBED IN THE CAREER
COMPENSATION ACT OF 1949, FOR AN OFFICER OF HIS GRADE WITH OVER 30
CUMULATIVE YEARS OF SERVICE. THE CLAIM PRESENTED TO THIS OFFICE WAS
DISALLOWED IN THE SETTLEMENT OF MARCH 26, 1959, FOR THE REASON THAT UPON
HIS RELEASE FROM ACTIVE DUTY AND REVERSION TO INACTIVE-DUTY STATUS ON
THE RETIRED LIST EFFECTIVE JULY 1, 1953, THE PLAINTIFF'S RETIRED PAY
STATUS CAME SQUARELY WITHIN THE SCOPE OF SECTIONS 411, 402 (D), AND 516
OF THE CAREER COMPENSATION ACT OF 1949.
IT IS YOUR CONTENTION THAT SINCE THE PROVISIONS OF THE FOURTH
PARAGRAPH OF SECTION 15 OF THE 1942 LAW WERE NOT REPEALED UPON ENACTMENT
OF THE CAREER COMPENSATION ACT OF 1949, THE BENEFITS RESULTING FROM THE
"RE-RETIREMENT" CONCEPT WHICH HAS BEEN ADOPTED BY THE COURT OF CLAIMS IN
CONSTRUING THESE STATUTORY PROVISIONS ACCRUE TO AN OFFICER PREVIOUSLY
RETIRED INCIDENT TO A RELEASE FROM ACTIVE DUTY ON OR AFTER OCTOBER 1,
1949, AS WELL AS INCIDENT TO A RELEASE FROM ACTIVE DUTY BEFORE OCTOBER
1, 1949. HOWEVER, THE COURT OF CLAIMS HAS NOT YET PASSED UPON THE
APPLICABILITY OF THE PROVISIONS OF SECTION 516 OF THE 1949 LAW TO
PREVIOUSLY RETIRED OFFICERS WHO SERVED IN THE MILITARY AND NAVAL FORCES
OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, UPON THEIR RELEASE FROM
ACTIVE DUTY AND REVERSION TO INACTIVE DUTY STATUS ON THE RETIRED LIST ON
OR AFTER OCTOBER 1, 1949. IN VIEW OF THE FACT THAT THE "RE-RETIREMENT"
CONCEPT WHICH THE COURT OF CLAIMS HAS APPLIED TO THE PROVISIONS OF THE
FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 LAW WITH RESPECT TO THE
PERIOD PRECEDING OCTOBER 1, 1949, IS WITHOUT OTHER LEGAL PRECEDENT, THIS
OFFICE PROPERLY MAY NOT EXTEND THE AREA OF OPERATION NOW BEING ACCORDED
TO THESE STATUTORY PROVISIONS UNDER THE RULE ESTABLISHED BY THE COURT IN
THE DANIELSON, GORDON, FIELD AND SHERFEY CASES AS TO ANY PART OF THE
PERIOD BEGINNING OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER
COMPENSATION ACT OF 1949.
IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO THE FACT THAT AT THE
TIME THE CAREER COMPENSATION ACT OF 1949 WAS ENACTED INTO LAW, THE
CONCEPT THAT THE WORDS "HEREAFTER RETIRED" (CONTAINED IN THE FOURTH
PARAGRAPH OF SECTION 15 OF THE 1942 ACT) INCLUDED SITUATIONS WERE
PREVIOUSLY RETIRED OFFICERS REVERTED TO A RETIRED STATUS AFTER A TOUR OF
ACTIVE DUTY, WAS UNKNOWN TO THE LAW. IN RETAINING THAT PARAGRAPH (SEE
SECTION 531 (B) (34) OF THE CAREER COMPENSATION ACT)
WHILE AT THE SAME TIME ENACTING DETAILED PROVISIONS IN SECTION 516 OF
THAT ACT CONCERNING THE METHOD OF COMPUTING INCREASES IN RETIRED PAY
WHICH WERE TO RESULT FROM ACTIVE DUTY PERFORMED AFTER RETIREMENT, IT IS
DIFFICULT TO IMPUTE TO THE CONGRESS AN INTENT TO GIVE THE WORDS
"HEREAFTER RETIRED" A MEANING OTHER THAN IS CONVEYED IN THEIR NORMAL USE
AND UNDERSTANDING--- AN ORIGINAL RETIREMENT, AS DISTINGUISHED FROM A
THEN UNKNOWN "RE-RETIREMENT"--- AND THUS AS PROVIDING TWO DIFFERENT
METHODS OF COMPUTING INCREASES IN RETIRED PAY FOLLOWING COMPLETION OF A
TOUR OF ACTIVE DUTY TERMINATING ON OR AFTER OCTOBER 1, 1949. WHILE THE
COURT HAS SINCE INTERPRETED THE QUOTED WORDS AS INCLUDING A
"RE-RETIREMENT," ITS DECISIONS TO THAT EFFECT HAVE ALL RELATED TO
,RE-RETIREMENTS" PRIOR TO OCTOBER 1, 1949. IN ENACTING SECTION 516 OF
THE 1949 ACT, THE CONGRESS FIXED A LEGISLATIVE POLICY AND PRESCRIBED A
METHOD OF COMPUTING RETIRED PAY APPLICABLE TO RETIRED PERSONNEL OF THE
UNIFORMED SERVICES WHO WERE RECALLED TO ACTIVE DUTY AND WHO REVERTED TO
AN INACTIVE STATUS UPON RELEASE FROM ACTIVE DUTY ON OR AFTER OCTOBER 1,
1949. WHILE IT MAY BE THAT THE COURT OF CLAIMS WILL HOLD THAT SUCH
GENERAL POLICY IS NOT APPLICABLE IN A CASE SUCH AS THE PRESENT ONE, THE
MATTER IS SUFFICIENTLY DOUBTFUL AS TO WARRANT OUR LEAVING THIS QUESTION
TO THE COURT FOR DECISION.
ACCORDINGLY, IN THE ABSENCE OF A COURT DECISION ON THE POINT HERE
INVOLVED, IT IS OUR VIEW THAT THE RIGHT TO INCREASED RETIRED PAY IN SUCH
A CASE IS FOR DETERMINATION EXCLUSIVELY IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 516, OR WHERE APPLICABLE, IN ACCORDANCE WITH THE
PROVISIONS OF SECTIONS 411 AND 402 (D) OF THE 1949 LAW.
B-134449, JUL. 2, 1959
TO THE GENERAL INSURANCE COMPANY OF AMERICA:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 9, 1959, AND ITS ENCLOSED
BRIEF, WHEREIN YOU CONTEND THAT OUR DECISION OF APRIL 27, 1959,
AUTHORIZING THE SETOFF OF A TAX INDEBTEDNESS OF THE DEFAULTING
CONTRACTOR AGAINST PERCENTAGES RETAINED FROM THE CONTRACTOR'S EARNINGS
PRIOR TO DEFAULT WAS ERRONEOUS AND THAT THE RETAINED PERCENTAGES SHOULD
BE PAID TO YOUR COMPANY, THE COMPLETING SURETY UNDER CONTRACT NO.
DA-45-164-ENG-2255 WITH MAX M. STOECKERT, D/B/A) UNIVERSITY BRICK AND
TILE COMPANY. YOU ALSO STATE THAT YOU DESIRE A HEARING IN THIS MATTER
AND AN OPPORTUNITY TO ANSWER SUCH OPPOSING CONTENTIONS AS MAY BE RAISED.
IN SUPPORT OF YOUR CONTENTIONS, YOU ALLEGE THAT OUR DECISION IS
INCONSISTENT WITH A PREVIOUS DECISION DATED SEPTEMBER 20, 1957,
B-132347, AND THAT IT IS ALSO "CONTRARY TO THE WEIGHT OF AUTHORITY IN
THIS COUNTRY ON ANALOGOUS FACTS.'
WE DO NOT CONSIDER THE FACTS INVOLVED IN THE 1957 DECISION ANALOGOUS.
IN THAT CASE THE UNFINISHED WORK WAS COMPLETED UNDER AN ASSIGNMENT BY
THE CONTRACTOR TO THE SURETY. IN THE INSTANT CASE THE SURETY COMPLETED
THE WORK UNDER AN EXPRESS AGREEMENT WITH THE GOVERNMENT, PARAGRAPH 3 OF
WHICH PROVIDED IN PERTINENT PART: "THE GOVERNMENT WILL PAY TO THE
SURETY ALL PAYMENTS TO BECOME DUE AS BASED ON EARNED ESTIMATES FOR THE
WORK PERFORMED BY IT AND, UPON COMPLETION AND ACCEPTANCE OF ALL WORK TO
BE PERFORMED UNDER THE CONTRACT, THE GOVERNMENT WILL PAY RETAINED
PERCENTAGES, IF ANY, APPLICABLE TO THE SURETY'S EARNINGS.' OUR DECISION
GAVE EFFECT TO THE INTENTION OF THE PARTIES THUS CLEARLY EXPRESSED, AND
MANIFESTLY ANY OTHER UNDERSTANDING YOU MAY HAVE HAD BECAME MERGED INTO
AND SUPERSEDED BY THE EXPRESS AGREEMENT. IT IS NOT UNDERSTOOD THAT ANY
OF THE COURT OPINIONS REFERRED TO IN YOUR BRIEF INVOLVED A SIMILAR
"TAKEOVER" AGREEMENT. FURTHERMORE, OUR DETERMINATION IN THE INSTANT
CASE IS CONSISTENT WITH THE RULE ESTABLISHED BY THE AUTHORITIES CITED
THAT THE UNITED STATES CANNOT BE DEPRIVED OF ITS RIGHT TO APPLY MONEY
DUE ITS DEBTOR IN SATISFACTION OF AN EXISTING DEBT MERELY BECAUSE THE
COMPLETING SURETY RATHER THAN THE CONTRACTOR-DEBTOR IS CLAIMING THE
FUND. UNITED STATES V. MUNSEY TRUST COMPANY, 332 U.S. 234; AND
STANDARD ACCIDENT INSURANCE COMPANY V. UNITED STATES, 119 C.CLS. 749.
WITH RESPECT TO YOUR REQUEST FOR A HEARING, UNDER OUR PRACTICE
MATTERS PRESENTED ARE CONSIDERED AND DETERMINED ON THE BASIS OF THE
WRITTEN RECORD. INTERVIEWS ARE GRANTED, HOWEVER, TO AFFORD AN
OPPORTUNITY FOR DISCUSSION AND THE PRESENTATION OF ADDITIONAL
INFORMATION AND EVIDENCE, AND WHILE WE DO NOT BELIEVE AN INTERVIEW WOULD
SERVE ANY USEFUL PURPOSE IN THE INSTANT CASE, NEVERTHELESS, IF YOU SO
DESIRE, PLEASE ADVISE US A FEW DAYS IN ADVANCE OF THE TIME YOU EXPECT TO
BE PRESENT IN ORDER THAT THE NECESSARY ARRANGEMENTS MAY BE MADE.
B-137990, JUL. 2, 1959
TO MR. ROBERT E. GARDNER:
YOUR LETTER OF OCTOBER 28, 1958, CLAIMS ADDITIONAL COMPENSATION UNDER
THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR SERVICES IN EXCESS OF 40 HOURS
PER WEEK SAID TO HAVE BEEN RENDERED AS A BORDER PATROL OFFICER,
IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE, DURING
THE PERIOD NOVEMBER 20, 1945, TO APRIL 24, 1955.
YOU SAY THAT ALL HOURS OF OVERTIME PERFORMED BY YOU DURING THE PERIOD
OF YOUR CLAIM WERE PERFORMED WITH THE KNOWLEDGE AND CONSENT OF YOUR
LOCAL BORDER PATROL SECTOR AND DISTRICT SUPERVISORY AND ADMINISTRATIVE
OFFICIALS AND WERE APPROVED BY THEM OR THEIR DESIGNATED REPRESENTATIVES
THROUGH THE AFFIXING OF THEIR SIGNATURES TO TIME AND ATTENDANCE REPORTS
AS EXAMINING AND APPROVING OFFICER. ALSO, YOU SAY THAT BECAUSE OF THE
CLOSE ASSOCIATION AND SIMILARITY OF DUTIES, FUNCTIONS, ORGANIZATION, AND
ADMINISTRATION WHICH EXISTED BETWEEN THE BORDER PATROL OF THE
IMMIGRATION AND CUSTOMS SERVICES AT THE TIME THE CUSTOMS BORDER PATROL
WAS IN EXISTENCE, YOUR CLAIM FOR PAYMENT IS BASED UPON DECISIONS OF THE
UNITED STATES COURT OF CLAIMS IN NOS. 50303, 50367, AND 50471
(ANDERSON, ET AL. V. UNITED STATES, 136 C.CLS. 365), THROUGH WHICH
BORDER PATROL OFFICERS OF THE CUSTOMS SERVICE WERE PAID FOR OVERTIME AS
WAS PROVIDED FOR IN THE FEDERAL EMPLOYEES PAY ACT OF 1945.
SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296,
AS ORIGINALLY ENACTED AND AS AMENDED BY THE ACT OF SEPTEMBER 1, 1954, 68
STAT. 1109, PROVIDES FOR PAYMENT OF OVERTIME COMPENSATION TO CERTAIN
EMPLOYEES FOR ALL HOURS OF WORK "OFFICIALLY ORDERED OR APPROVED" IN
EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK.
REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION PURSUANT TO THE
PROVISIONS OF LAW REFERRED TO ABOVE PROVIDE GENERALLY FOR PAYMENT FOR
OVERTIME OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN ANY
ADMINISTRATIVE WORKWEEK. THE REGULATIONS ALSO PROVIDE THAT NO OVERTIME
IN EXCESS OF ANY THAT MAY BE INCLUDED IN THE REGULARLY SCHEDULED
ADMINISTRATIVE WORKWEEK SHALL BE ORDERED OR APPROVED EXCEPT IN WRITING
BY AN OFFICER OR EMPLOYEE TO WHOM SUCH AUTHORITY HAS BEEN DELEGATED.
WE HAVE BEEN ADVISED BY THE IMMIGRATION AND NATURALIZATION SERVICE
THAT ATTORNEY GENERAL'S ORDER NO. 1 REQUIRES THAT ALL PAID OVERTIME IN
THE DEPARTMENT OF JUSTICE BE ORDERED BY THE HEAD OF THE DIVISION OR
OFFICE AND APPROVED IN ADVANCE BY THE DEPUTY ATTORNEY GENERAL OR THE
ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL, WITH CERTAIN EXCEPTIONS NOT
PERTINENT HERE. ALSO, THE SERVICE ADVISES THAT YOU HAVE BEEN PAID, OR
GRANTED OR CREDITED WITH COMPENSATORY TIME, FOR ALL OVERTIME PROPERLY
AUTHORIZED OR APPROVED IN ACCORDANCE WITH THE FOREGOING REGULATIONS AND
PROCEDURES.
WE ARE UNABLE TO CONCLUDE FROM THE PRESENT RECORD THAT YOU WERE
INDUCED TO PERFORM OVERTIME BY A SUBORDINATE OFFICER WITH THE FULL
KNOWLEDGE AND APPROVAL AND UNDER THE LEADERSHIP AND SPECIFIC SUGGESTION
OF THE CHIEF OF THE SERVICE AS WAS FOUND IN THE ANDERSON CASE CITED
ABOVE.
IN VIEW OF THE ADMINISTRATIVE REPORT, AND OF THE APPLICABLE STATUTES
AND REGULATIONS, YOUR CLAIM FOR ADDITIONAL COMPENSATION FOR OVERTIME
SERVICES MUST BE DISALLOWED.
CONCERNING YOUR REQUEST FOR PAYMENT FOR UNUSED COMPENSATORY TIME
STANDING TO YOUR CREDIT, WE MUST ADVISE THAT THERE IS NO AUTHORITY FOR
THE PAYMENT OF COMPENSATION FOR COMPENSATORY TIME CREDITED IN ACCORDANCE
WITH SECTION 202 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AND
VARIOUS AMENDMENTS THERETO, 5 U.S.C. 912, IN THE ABSENCE OF A SHOWING
THAT, BECAUSE OF AN EXIGENCY OF THE SERVICES BEYOND YOUR CONTROL, YOU
HAVE NOT BEEN OR CANNOT BE GRANTED THE COMPENSATORY TIME. 25 COMP. GEN.
62; 26 ID. 750.
B-138062, JUL. 2, 1959
TO MR. A. M. FLATEQUAL, AUTHORIZED CERTIFYING OFFICER, FOREIGN
AGRICULTURAL SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE:
YOUR LETTER OF MAY 5, 1959, WITH ENCLOSURES, REQUESTS RECONSIDERATION
OF OUR DECISION OF JANUARY 2, 1959, B-138062, WHICH HELD THAT A RECLAIM
VOUCHER IN FAVOR OF HAROLD C. LARSEN, AN EMPLOYEE OF THE FOREIGN
AGRICULTURAL SERVICE, COULD NOT BE CERTIFIED FOR PAYMENT. THE RECLAIM
VOUCHER IN THE TOTAL AMOUNT OF $24.56, WHICH WAS ADMINISTRATIVELY
SUSPENDED ON HIS ORIGINAL TRAVEL VOUCHER, REPRESENTS THE COST OF
TRANSPORTING MR. LARSEN'S AUTOMOBILE BY BOAT FROM STOCKHOLM, SWEDEN, TO
HELSINKI, FINLAND, A DISTANCE OF APPROXIMATELY 256 MILES, ON JUNE 11,
1958. IN FAVOR OF HAROLD C. LARSEN, AN EMPLOYEE OF THE FOREIGN
AGRICULTURAL SERVICE, COULD NOT BE CERTIFIED FOR PAYMENT. THE RECLAIM
VOUCHER IN THE TOTAL AMOUNT OF $24.56, WHICH WAS ADMINISTRATIVELY
SUSPENDED ON HIS ORIGINAL TRAVEL VOUCHER, REPRESENTS THE COST OF
TRANSPORTING MR. LARSEN'S AUTOMOBILE BY BOAT FROM STOCKHOLM, SWEDEN, TO
HELSINKI, FINLAND, A DISTANCE OF APPROXIMATELY 256 MILES, ON JUNE 11,
1958.
THE RECORD SHOWS THAT MR. LARSEN, THE AGRICULTURE ATTACHE FOR SWEDEN
AND FINLAND WITH HEADQUARTERS IN STOCKHOLM, SWEDEN, WHILE TRAVELING ON
OFFICIAL BUSINESS BETWEEN STOCKHOLM AND HELSINKI, TRAVELED BY AIRPLANE
AND HAD HIS AUTOMOBILE SHIPPED BY BOAT. IN OUR DECISION OF JANUARY 2,
1959, WE SAID THAT WE HAD FOUND NO SPECIFIC OR GENERAL PROVISIONS OF LAW
OR REGULATIONS UNDER WHICH THE TRANSPORTATION EXPENSES FOR AN EMPLOYEE'S
PRIVATELY OWNED AUTOMOBILE UNDER CIRCUMSTANCES SIMILAR TO THOSE COVERED
BY THE RECLAIM VOUCHER MAY BE ALLOWED.
YOU SAY IN YOUR LETTER:
"* * * AS PREVIOUSLY STATED, MR. LARSEN, WHILE HEADQUARTERED IN
STOCKHOLM, WAS ASSIGNED RESPONSIBILITY FOR AGRICULTURAL REPORTING FOR
BOTH SWEDEN AND FINLAND. THIS REQUIRES CONSIDERABLE TRAVEL BETWEEN THE
CAPITOL CITIES AND IN CARRYING OUT CERTAIN DUTIES OF HIS OFFICE. THE
USE OF AN AUTOMOBILE IS ESSENTIAL TO THE ACCOMPLISHMENT OF THE MISSION.
"BECAUSE OF THE LOCATION OF THE TWO COUNTRIES, THE ALTERNATIVE TO
MOVE THE CAR BY BOAT, FROM STOCKHOLM TO HELSINKI, WOULD HAVE BEEN AN
OVER-LAND TRIP OF ABOUT 1,218 MILES (DIRECT ROUTING) PLUS 4 OR 5 DAYS
PER DIEM DEPENDING ON ROAD CONDITIONS. THIS COST WOULD HAVE BEEN
$121.80 FOR MILEAGE, PLUS $48 OR $60, FOR PER DIEM, WITHOUT
CONSIDERATION OF THE ADDITIONAL TIME THE ATTACHE WOULD HAVE BEEN ABSENT
FROM HIS OFFICE.
"* * * WITHOUT TAKING INTO CONSIDERATION THE PER DIEM SAVINGS
INVOLVED IN THE OVER-WATER TRAVEL BETWEEN STOCKHOLM AND HELSINKI, WE
WISH TO POINT OUT THE ECONOMY OF THE METHOD OF TRAVEL UTILIZED OVER THAT
WHICH WOULD HAVE BEEN INVOLVED IF THE GOING OUT TRIP HAD BEEN OVER-LAND
BY CAR.
TABLE
"1. IF EMPLOYEE HAD TRAVELED BY BOAT ACCOMPANIED BY CAR:
ONE WAY BOAT TICKET PLUS CABIN CHARGE: $22.04
TRANSPORTATION OF CAR: 24.60
--------
TOTAL $46.64
"2. IF EMPLOYEE TRAVELED BY PLANE AND SHIPPED
CAR (UNACCOMPANIED):
ONE WAY AIR TICKET: $25.50
TRANSPORTATION OF CAR: 49.20
--------
TOTAL $74.70
"3. TRANSPORTATION COST ACTUALLY INCURRED:
ONE WAY AIR TICKET: $25.50
ONE WAY TRANSPORTATION OF CAR: $24.60*
---------
TOTAL $50.10
*THE EMPLOYEE RECEIVED THE LOWER RATE FOR TRANSPORTING CAR,
VIA BOAT, SINCE IT WAS ACCOMPANIED BY ANOTHER PERSON.
"4. AGAINST ANY OF THE ABOVE COSTS, THERE WOULD HAVE BEEN A MILEAGE
EXPENSE FOR TRAVEL BY CAR FROM STOCKHOLM TO HELSINKI, VIA HAPARANDA, AS
FOLLOWS:
1,218 MILES AT 10 CENTS OR $121.80
"THERE RESULTS A SAVING IN TRANSPORTATION OF ABOUT $71.70 BY THE
METHOD USED OVER THE USE OF A CAR FOR THE OUTGOING TRIP. IN ADDITION
THERE SHOULD BE CONSIDERED THE SAVING IN PER DIEM WHICH WOULD INVOLVE 4
OR 5 DAYS IF TRAVEL WERE BY CAR, APPROXIMATELY 1 DAY BY BOAT, AND 1/4
DAY BY AIR.
* * *"
THE INFORMATION NOW AVAILABLE SHOWS THAT (1) WHILE AN AUTOMOBILE
ROUTE IS AVAILABLE THERE WOULD HAVE BEEN AN INCREASED COST TO THE
GOVERNMENT BECAUSE OF THE MILEAGE AND ADDITIONAL TRAVEL TIME OF
APPROXIMATELY 4 DAYS, (2) THE USE OF THE BOAT TO TRANSPORT THE
AUTOMOBILE WHILE EVIDENTLY NOT A ,FERRY" WITHIN THE LITERAL MEANING OF
SECTION 3.5B OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, WHEN
CONSIDERED TOGETHER WITH THE "PRUDENT PERSON" PROVISION IN SECTION 1.1
OF THE REGULATIONS, FALLS WITHIN THE SPIRIT OF THE REGULATIONS, AND (3)
THE USE OF AN AUTOMOBILE WAS DETERMINED ADMINISTRATIVELY AS ESSENTIAL TO
THE ACCOMPLISHMENT OF THE ASSIGNED MISSION. IN THAT REGARD WE ASSUME
THAT NO GOVERNMENT AUTOMOBILE WAS AVAILABLE AT HELSINKI AND THAT HIRE OF
A SPECIAL CONVEYANCE WAS NOT FEASIBLE. IN THE REPORTED CIRCUMSTANCES OF
THIS PARTICULAR CASE, OUR OFFICE WILL NOT OBJECT TO CERTIFICATION OF THE
VOUCHER IF OTHERWISE CORRECT.
B-139094, JUL. 2, 1959
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED MAY 22, 1959, FROM THE DEPUTY
ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), WITH ENCLOSURES, IN
RESPONSE TO OUR REQUEST FOR A REPORT RELATIVE TO THE PROTEST OF STEWART
AND STEVENSON SERVICES, INC., AGAINST THE AWARD OF CONTRACT NO.
DA-41-243-CIVENG-59-141, TO APPLIED POWER EQUIPMENT AND MANUFACTURING
COMPANY.
THE RECORD SHOWS THAT ON JANUARY 30, 1959, THE ARMY ENGINEER
DISTRICT, GALVESTON, TEXAS, REQUESTED BIDS FOR FURNISHING A DIESEL POWER
UNIT FOR USE IN A LOCOMOTIVE CRANE. PARAGRAPH 2 OF THE DETAILED
SPECIFICATIONS OF THE INVITATION PROVIDED, AMONG OTHER STIPULATIONS,
THAT--- "THE ENGINE SHALL HAVE NOT LESS THAN TWO (2) CYLINDERS AND SHALL
HAVE A TOTAL EFFECTIVE DISPLACEMENT OF NOT LESS THAN 400 CUBIC INCHES;
I.E., IF THE ENGINE IS FOUR CYCLE, 400 CUBIC INCHES MINIMUM ACTUAL
DISPLACEMENT IS REQUIRED; OR IF THE ENGINE IS TWO CYCLE, 200 CUBIC
INCHES MINIMUM ACTUAL DISPLACEMENT IS REQUIRED. * * *.' IN RESPONSE TO
THE INVITATION, STEWART AND STEVENSON SERVICES, INC., OFFERED TO FURNISH
A THREE CYLINDER, TWO CYCLE, DIESEL ENGINE HAVING A DISPLACEMENT OF
212.8 INCHES FOR $4,988. THE APPLIED POWER EQUIPMENT AND MANUFACTURING
COMPANY OFFERED TO FURNISH A FOUR CYLINDER, FOUR CYCLE ENGINE HAVING A
DISPLACEMENT OF 344 CUBIC INCHES, OR 56 CUBIC INCHES LESS THAN THE 400
CUBIC INCH DISPLACEMENT CALLED FOR IN THE SPECIFICATIONS, FOR A NET
PRICE OF $4,800. AFTER EVALUATING THE BIDS THE GALVESTON ENGINEER
DISTRICT AWARDED THE CONTRACT TO APPLIED POWER EQUIPMENT AND
MANUFACTURING COMPANY, NOTWITHSTANDING THE FAILURE OF ITS ENGINE TO MEET
THE ADVERTISED SPECIFICATIONS.
AN UNDATED REPORT BY THE CONTRACTING OFFICER SUBMITTED IN SUPPORT OF
THE ACTION TAKEN, CONCLUDES AS FOLLOWS:
"IT IS CONSIDERED THAT THE ENGINE OFFERED BY APPLIED POWER EQUIPMENT
AND MANUFACTURING COMPANY MEETS THE ESSENTIAL REQUIREMENTS OF THE
SPECIFICATION. FURTHER, IT IS CONSIDERED THAT THE PROTEST BY STEWART
AND STEVENSON SERVICES, INC., IS BASED ON A MINOR TECHNICALITY. AWARD
WAS MADE AFTER FULL INVESTIGATION AND ANALYSIS OF ALL AVAILABLE
INFORMATION AND IS CONSIDERED TO BE JUST AND FAIR AND NOT PREJUDICIAL TO
STEWART AND STEVENSON SERVICES AND/OR THE GENERAL MOTORS EQUIPMENT ON
WHICH THEIR BID WAS BASED.'
WHILE THE GOVERNMENT RESERVED THE RIGHT IN THE INVITATION FOR BIDS TO
WAIVE ANY INFORMALITY IN BIDS RECEIVED, THE INFORMALITIES AND MINOR
IRREGULARITIES WHICH MAY BE WAIVED ARE THOSE OF FORM AND NOT OF
SUBSTANCE, OR OF SOME IMMATERIAL AND INCONSEQUENTIAL DEFECT IN OR
VARIATION OF A BID FROM THE EXACT REQUIREMENTS OF THE ADVERTISED
INVITATION AND SPECIFICATIONS. SUCH MINOR DEVIATIONS MAY BE WAIVED
PROVIDED THEY DO NOT GO TO THE SUBSTANCE OF THE BID OR WORK AN INJUSTICE
TO OTHER BIDDERS. SEE 30 COMP. GEN. 179.
HERE THE INVITATION CALLED FOR THE FURNISHING OF A POWER UNIT IN
STRICT ACCORDANCE WITH THE SPECIFICATIONS AND IF THE ENGINE IS FOUR
CYCLE, 400 CUBIC INCHES MINIMUM ACTUAL DISPLACEMENT IS REQUIRED. IT
WOULD SEEM APPARENT THAT, IN VIEW OF THE PRECISE LANGUAGE USED IN THE
INVITATION, THE PISTON DISPLACEMENT OF THE ENGINE DESIRED WAS A MATERIAL
REQUIREMENT. THE TREATMENT OF SUCH STIPULATION HERE AS IMMATERIAL
CLEARLY WAS PREJUDICIAL TO THE RIGHTS OF THE PROTESTANT, AND MAY HAVE
BEEN A DETERRING FACTOR AS TO OTHER POTENTIAL BIDDERS WHO FAILED TO
RESPOND TO THE INVITATION.
WHILE IT APPEARS OBVIOUS TO US THAT THE CONTRACT SHOULD NOT HAVE BEEN
AWARDED, NO FURTHER QUESTION WILL BE RAISED AS TO THE ADMINISTRATIVE
ACTION TAKEN IN THIS PROCUREMENT SINCE IT IS UNDERSTOOD THAT DELIVERY OF
THE EQUIPMENT HAS BEEN MADE. IN FUTURE PROCUREMENTS IT IS SUGGESTED
THAT, IF REASONABLE TOLERANCES RESPECTING PISTON DISPLACEMENT ARE
ACCEPTABLE TO YOUR DEPARTMENT, INVITATION SPECIFICATIONS SHOULD BE
STATED IN APPROXIMATE TERMS.
B-139573, JUL. 2, 1959
TO MR. T. R. SCANLAN:
REFERENCE IS MADE TO YOUR LETTER OF MAY 8, 1959, AND SUBSEQUENT
CORRESPONDENCE, PROTESTING AGAINST THE REJECTION OF BIDS SUBMITTED IN
RESPONSE TO INVITATION FOR BIDS NO. ORD-20-113-59-850 ISSUED ON FEBRUARY
13, 1959, BY THE ORDNANCE TANK AUTOMOTIVE COMMAND FOR 21,399 EACH 11.00
TIMES 20 TIRES AND FOR A SET-ASIDE QUANTITY OF 21,400 EACH FOR
SUBSEQUENT NEGOTIATION WITH ELIGIBLE BIDDERS IN LABOR SURPLUS AREAS.
SEVENTEEN BIDS WERE RECEIVED AND PUBLICLY OPENED ON MARCH 5, 1959,
AND THE BID PRICES OF THE EIGHT LOWEST BIDDERS ON THE NON-SET-ASIDE
PORTION WERE AS FOLLOWS:
TABLE
LEE 2,000 EACH AT $69,57
DUNLOP 500 EACH AT 75.33
COOPER 2,880 EACH AT 75.42
MANSFIELD 5,400 EACH AT 75.68
PACIFIC 3,234 EACH AT 76.03
MOHAWK 2,000 EACH AT 78.15
GATES 1,000 EACH AT 78.79
DAYTON 5,600 EACH AT 79.16
UPON ANALYSIS OF THE BID PRICES IN RELATION TO THE PRICES UNDER
PREVIOUS PROCUREMENTS, IT WAS DETERMINED THAT THE BIDS RECEIVED PERSUANT
TO THE SUBJECT INVITATION WERE OUT OF PROPORTION TO COST INCREASES
OCCURRING SINCE THE DATE OF THE LAST PROCUREMENT OF THESE TIRES. THE
ANALYSIS OF BID PRICES WAS BASED ON A COMPARISON OF THE BIDS RECEIVED
UNDER INVITATION NO. 59-850 WITH THOSE PREVIOUSLY SUBMITTED UNDER
INVITATION NO. 58-848 OPENED ON MAY 19, 1958, AND AWARDED TO GOODYEAR
TIRE COMPANY AT A PRICE OF $53.39 EACH FOR 21,544 TIRES. IT WAS
REVEALED BY SUCH ANALYSIS THAT AN OVER-ALL PRICE INCREASE OF ABOUT 30
PERCENT WAS REFLECTED IN THE EIGHT LOWEST BIDS, AS WELL AS IN THE BIDS
OF THE OTHER BIDDERS, WHICH INCREASE IS GREATER THAN THAT JUSTIFIED BY
PRODUCTION COST INCREASES SINCE MAY 1958. IN VIEW THEREOF, ALL BIDS
WERE REJECTED AS BEING UNREASONABLE AS TO PRICE, AND YOUR COMPANY WAS SO
ADVISED. ON APRIL 20, 1959, THE IDENTICAL REQUIREMENT WAS READVERTISED
AND BIDS SUBMITTED IN RESPONSE THERETO WERE SCHEDULED FOR OPENING ON MAY
4, 1959. THAT OPENING DATE WAS EXTENDED TO JUNE 15, 1959. HOWEVER,
AWARD UNDER THE NEW INVITATION, NO. 59-1242, IS BEING HELD IN ABEYANCE
PENDING OUR CONSIDERATION OF YOUR PROTEST.
IT IS THE CONTENTION OF YOUR COMPANY THAT THE BIDS RECEIVED UNDER
INVITATION NO. 59-850 WERE NOT UNREASONABLE AS TO PRICE BECAUSE (1) THE
BIDS WERE COMPARABLE IN PRICE WITH FEDERAL SUPPLY SCHEDULE PRICES AND
(2) THE REJECTION OF BIDS BASED UPON COMPARISON WITH THOSE RECEIVED
UNDER INVITATION NO. 58-848 IS WITHOUT SUPPORT IN FACT AND CAN ONLY
RESULT IN ABUSE OF ADVERTISED COMPETITIVE BIDDING. YOU ALSO ARGUE, IN
EFFECT, THAT A COMPARISON OF BIDS TO A PRIOR LOW BID, WHICH RESULTED IN
A LOSS TO THE BIDDER, IS CONTRARY TO THE INTERESTS OF THE GOVERNMENT
SINCE SUCH LOSS COULD BE USED TO OFFSET PROFITS TO BE DETERMINED UNDER
THE RENEGOTIATION ACT WITH RESPECT TO SUCH BIDDER'S OVER-ALL GOVERNMENT
BUSINESS. IN THE PRESENT POSTURE OF THIS CASE, WE ARE NOT PERSUADED
THAT THE RENEGOTIATION ACT IMPLICATION, STANDING ALONE, HAS ANY RELEVANT
BEARING ON THE MATTER OF DETERMINING THE REASONABLENESS OF BID PRICES
PER SE. TURNING THEN TO YOUR PRINCIPAL CONTENTION THAT THE BID PRICES
SUBMITTED UNDER INVITATION NO. 59-850 WERE NOT UNREASONABLE, IT APPEARS
THAT YOU ATTACK THE BASES OF THE DETERMINATION ON THE GROUND THAT IT IS
NOT SUPPORTED BY THE PAST PROCUREMENT HISTORY OF THE SAME OR SIMILAR
TIRES. WE HAVE CAREFULLY REVIEWED THE DATA SUBMITTED BY YOU IN THE
LIGHT OF THE ADMINISTRATIVE REPORT AND WE ARE NOT CONVINCED AT THIS TIME
THAT THE REJECTION ACTION CONSTITUTED AN ABUSE OF DISCRETION OR A
VIOLATION OF THE COMPETITIVE BIDDING STATUTE.
10 U.S. CODE 2305 (B) PROVIDES THAT "ALL BIDS MAY BE REJECTED IF THE
HEAD OF THE AGENCY DETERMINES THAT REJECTION IS IN THE PUBLIC INTEREST.'
THAT AUTHORITY HAS BEEN DELEGATED, PURSUANT TO 10 U.S. CODE 2311, TO
THE CONTRACTING OFFICER BY THE TERMS OF PARAGRAPH 2-403 (C) OF THE ARMY
PROCUREMENT PROCEDURE. THE AUTHORITY TO REJECT ALL BIDS IS EXTREMELY
BROAD AND WE HAVE CONSISTENTLY HELD THAT A DETERMINATION PURSUANT TO
SUCH AUTHORITY IS NOT ORDINARILY SUBJECT TO REVIEW. SEE B-118013, MARCH
31, 1954; B-128422, AUGUST 30, 1956; B-131028, APRIL 29, 1957; HARNEY
V. DUNKEE, 237 P.2D 561; ALR 2D 469; CHAMPION COATED PAPER COMPANY V.
JOINT COMMITTEE, 47 APP.D.C. 141.
ARTICLE 8 OF THE TERMS AND CONDITIONS OF THE INVITATION PROVIDES THAT
"THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY AND ALL BIDS.' IT HAS
BEEN HELD THAT IRRESPECTIVE OF SUCH RESERVATION, A REQUEST FOR BIDS DOES
NOT IMPART AN OBLIGATION TO ACCEPT ANY OF THE OFFERS RECEIVED, INCLUDING
THE LOWEST CORRECT BID. O-BRIEN V. CARNEY, 6 F.SUPP. 761; SCOTT V.
UNITED STATES, 44 C.CLS. 524; COLORADO PAVING COMPANY V. MURPHY, 78 F.
28.
A SIMILAR MATTER WAS THE SUBJECT OR OUR DECISION REPORTED AT 36 COMP.
GEN. 364, AND IT WAS POINTED OUT THEREIN 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 SUPPLIES, A REJECTION OF ALL BIDS AND A READVERTISEMENT FOR
NEW BIDS WAS CONSIDERED AS A PROPER EXERCISE OF ADMINISTRATIVE
DISCRETION. ALSO, SEE, 17 COMP. GEN. 554.
IN VIEW OF THE FOREGOING, WE FIND NO LEGAL JUSTIFICATION ON THE BASIS
OF THE PRESENT RECORD FOR DISTURBING THE ACTION TAKEN BY THE PROCUREMENT
AGENCY IN THE MATTER. ACCORDINGLY, BY LETTER OF TODAY TO THE SECRETARY
OF THE ARMY, COPY ENCLOSED, HE IS BEING ADVISED THAT WE WOULD HAVE NO
OBJECTION IF THE BIDS RECEIVED IN RESPONSE TO INVITATION NO. 59-1242 BE
EVALUATED FOR THE PURPOSES OF MAKING AN AWARD TO THE LOWEST RESPONSIBLE
BIDDER.
B-139583, JUL. 2, 1959
TO MR. F. R. MATHEWS:
REFERENCE IS MADE TO YOUR LETTER OF MAY 9, 1959, AND SUBSEQUENT
CORRESPONDENCE, PROTESTING AGAINST THE REJECTION OF BIDS SUBMITTED IN
RESPONSE TO INVITATION FOR BIDS NO. ORD-20-113-59-850 ISSUED ON FEBRUARY
13, 1959, BY THE ORDNANCE TANK AUTOMOTIVE COMMAND FOR 21,399 EACH 11.00
TIMES 20 TIRES AND FOR A SET-ASIDE QUANTITY OF 21,400 EACH FOR
SUBSEQUENT NEGOTIATION WITH ELIGIBLE BIDDERS IN LABOR SURPLUS AREAS.
SEVENTEEN BIDS WERE RECEIVED AND PUBLICLY OPENED ON MARCH 5, 1959,
AND THE BID PRICES OF THE EIGHT LOWEST BIDDERS ON THE NON-SET-ASIDE
PORTION WERE AS FOLLOWS:
TABLE
LEE 2,000 EACH AT $69.57
DUNLOP 500 EACH AT 75.33
COOPER 2,880 EACH AT 75.42
MANSFIELD 5,400 EACH AT 75.68
PACIFIC 3,234 EACH AT 76.03
MOHAWK 2,000 EACH AT 78.15
GATES 1,000 EACH AT 78.79
DAYTON 5,600 EACH AT 79.16
UPON ANALYSIS OF THE BID PRICES IN RELATION TO THE PRICES UNDER
PREVIOUS PROCUREMENTS, IT WAS DETERMINED THAT THE BIDS RECEIVED PURSUANT
TO THE SUBJECT INVITATION WERE OUT OF PROPORTION TO COST INCREASES
OCCURRING SINCE THE DATE OF THE LAST PROCUREMENT OF THESE TIRES. THE
ANALYSIS OF BID PRICES WAS BASED ON A COMPARISON OF THE BIDS RECEIVED
UNDER INVITATION NO. 59-850 WITH THOSE PREVIOUSLY SUBMITTED UNDER
INVITATION NO. 58-848 OPENED ON MAY 19, 1958, AND AWARDED TO GOODYEAR
TIRE COMPANY AT A PRICE OF $53.39 EACH FOR 21,544 TIRES. IT WAS
REVEALED BY SUCH ANALYSIS THAT AN OVER-ALL PRICE INCREASE OF ABOUT 30
PERCENT WAS REFLECTED IN THE EIGHT LOWEST BIDS, AS WELL AS IN THE BIDS
OF THE OTHER NINE BIDDERS, WHICH INCREASE IS GREATER THAN THAT JUSTIFIED
BY PRODUCTION COST INCREASES SINCE MAY 1958. IN VIEW THEREOF, ALL BIDS
WERE REJECTED AS BEING UNREASONABLE AS TO PRICE, AND YOUR COMPANY WAS SO
ADVISED. ON APRIL 20, 1959, THE IDENTICAL REQUIREMENT WAS READVERTISED
AND BIDS SUBMITTED IN RESPONSE THERETO WERE SCHEDULED FOR OPENING ON MAY
4, 1959. THAT OPENING DATE WAS EXTENDED TO JUNE 15, 1959. HOWEVER,
AWARD UNDER THE NEW INVITATION, NO. 59-1242, IS BEING HELD IN ABEYANCE
PENDING OUR CONSIDERATION OF YOUR PROTEST.
IT IS THE CONTENTION OF YOUR COMPANY THAT THE BIDS RECEIVED UNDER
INVITATION NO. 59-850 WERE NOT UNREASONABLE AS TO PRICE BECAUSE (1) THE
BIDS WERE COMPARABLE IN PRICE WITH FEDERAL SUPPLY SCHEDULE PRICES AND
(2) THE REJECTION OF BIDS BASED UPON COMPARISON WITH THOSE RECEIVED
UNDER INVITATION NO. 58-848 IS WITHOUT SUPPORT IN FACT AND CAN ONLY
RESULT IN ABUSE OF ADVERTISED COMPETITIVE BIDDING. YOU ALSO ARGUE, IN
EFFECT, THAT A COMPARISON OF BIDS TO A PRIOR LOW BID, WHICH RESULTED IN
A LOSS TO THE BIDDER, IS CONTRARY TO THE INTERESTS OF THE GOVERNMENT
SINCE SUCH LOSS COULD BE USED TO OFFSET PROFITS TO BE DETERMINED UNDER
THE RENEGOTIATION ACT WITH RESPECT TO SUCH BIDDER'S OVER-ALL GOVERNMENT
BUSINESS. IN THE PRESENT POSTURE OF THIS CASE, WE ARE NOT PERSUADED
THAT THE RENEGOTIATION ACT IMPLICATION, STANDING ALONE, HAS ANY RELEVANT
BEARING ON THE MATTER OF DETERMINING THE REASONABLENESS OF BID PRICES
PER SE. TURNING THEN TO YOUR PRINCIPAL CONTENTION THAT THE BID PRICES
SUBMITTED UNDER INVITATION NO. 59-850 WERE NOT UNREASONABLE, IT APPEARS
THAT YOU ATTACK THE BASES OF THE DETERMINATION ON THE GROUND THAT IT IS
NOT SUPPORTED BY THE PAST PROCUREMENT HISTORY OF THE SAME OR SIMILAR
TIRES. WE HAVE CAREFULLY REVIEWED THE DATA SUBMITTED BY YOU IN THE
LIGHT OF THE ADMINISTRATIVE REPORT AND WE ARE NOT CONVINCED AT THIS TIME
THAT THE REJECTION ACTION CONSTITUTED AN ABUSE OF DISCRETION OR A
VIOLATION OF THE COMPETITIVE BIDDING STATURE.
10 U.S. CODE 2305 (B) PROVIDES THAT "ALL BIDS MAY BE REJECTED IF THE
HEAD OF THE AGENCY DETERMINES THAT REJECTION IS IN THE PUBLIC INTEREST.'
THAT AUTHORITY HAS BEEN DELEGATED, PURSUANT TO 10 U.S. CODE 2311, TO
THE CONTRACTING OFFICER BY THE TERMS OF PARAGRAPH 2-403 (E) OF THE ARMY
PROCUREMENT PROCEDURE. THE AUTHORITY TO REJECT ALL BIDS IS EXTREMELY
BROAD AND WE HAVE CONSISTENTLY HELD THAT A DETERMINATION PURSUANT TO
SUCH AUTHORITY IS NOT ORDINARILY SUBJECT TO REVIEW. SEE B-118013, MARCH
31, 1954; B-128422, AUGUST 30, 1956; B-131028, APRIL 29, 1957; HARNEY
V. DUNKEE, 237 P.2D 561; 31 ALR 2D 469; CHAMPION COATED PAPER COMPANY
V. JOINT COMMITTEE, 47 APP.D.C. 141.
ARTICLE 8 OF THE TERMS AND CONDITIONS OF THE INVITATION PROVIDES THAT
"THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY AND ALL BIDS.' IT HAS
BEEN HELD THAT, IRRESPECTIVE OF SUCH RESERVATION, A REQUEST FOR BIDS
DOES NOT IMPART AN OBLIGATION TO ACCEPT ANY OF THE OFFERS RECEIVED,
INCLUDING THE LOWEST CORRECT BID. O-BRIEN V. CARNEY, 6 F.SUPP. 761;
SCOTT V. UNITED STATES, 44 C.CLS. 524; COLORADO PAVING COMPANY V.
MURPHY, 78 F. 28.
A SIMILAR MATTER WAS THE SUBJECT OF OUR DECISION REPORTED AT 36 COMP.
GEN. 364, AND IT WAS POINTED OUT THEREIN 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 SUPPLIES, A REJECTION OF ALL BIDS AND A READVERTISEMENT FOR
NEW BIDS WAS CONSIDERED AS A PROPER EXERCISE OF ADMINISTRATIVE
DISCRETION. ALSO, SEE, 17 COMP. GEN. 554.
IN VIEW OF THE FOREGOING, WE FIND NO LEGAL JUSTIFICATION ON THE BASIS
OF THE PRESENT RECORD FOR DISTURBING THE ACTION TAKEN BY THE PROCUREMENT
AGENCY IN THE MATTER. ACCORDINGLY, BY LETTER OF TODAY TO THE SECRETARY
OF THE ARMY, COPY ENCLOSED, HE IS BEING ADVISED THAT WE WOULD HAVE NO
OBJECTION IF THE BIDS RECEIVED IN RESPONSE TO INVITATION NO. 59-1242 BE
EVALUATED FOR THE PURPOSE OF MAKING AN AWARD TO THE LOWEST RESPONSIBLE
BIDDER.
B-139585, JUL. 2, 1959
TO VAN VALBENBURGH, HOOGER AND NEVILLE, INC. :
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 8, 1959, PROTESTING
THE INCLUSION OF A STIPULATION FOR WAIVER OF THE USUAL PATENT
INFRINGEMENT INDEMNITY CLAUSE IN INVITATION TO BID NO. IFB600-1759-59
ISSUED BY THE NAVY PURCHASING OFFICE FOR "ELECTRONIC TRAINER-TESTERS" ON
WHICH IT IS STATED YOU HAVE A PATENT.
YOU ALLEGE IN YOUR LETTER THAT THIS WAIVER WAS NOT NECESSARY TO
ATTRACT A SUFFICIENT AND COMPETITIVE NUMBER OF BIDDERS AND THAT THERE
WAS NO JUSTIFICATION FOR A DEPARTURE FROM A POLICY OF INDEMNIFICATION
SET FORTH IN ASPR 9 AND RELATED SECTIONS. YOU QUESTION THE PROPRIETY OF
THE ADMINISTRATIVE ACTION FROM THE STANDPOINT OF GOVERNMENT ECONOMY AND
EFFICIENCY AND ALLEGE THAT IT WAS IN CONFLICT WITH THE PRINCIPLES STATED
IN OUR DECISION OF OCTOBER 6, 1958, 38 COMP. GEN. 276.
THE ADMINISTRATIVE OFFICE HAS REPORTED THAT THE WAIVER STIPULATION
WAS INCLUDED IN THE INVITATION IN ACCORDANCE WITH THE PROVISIONS OF ASPR
9-103.4 WHICH HAS THE FORCE AND EFFECT OF LAW AND PROVIDES, AS FOLLOWS:
"WAIVER OF INDEMNITY BY THE GOVERNMENT. IN THE EVENT THAT IT IS
DESIRED TO ACCEPT ONE OR MORE SPECIFIED UNITED STATES PATENTS FROM THE
INDEMNIFICATION PROVISIONS OF THE PROCEDING CLAUSES, AUTHORITY SHALL
FIRST BE OBTAINED FROM THE SECRETARY CONCERNED OR HIS AUTHORIZED
REPRESENTATIVE, AND THE FOLLOWING CLAUSE SHALL BE INCLUDED IN THE
CONTRACT, IN ADDITION TO THE PATENT INDEMNITY CLAUSE:
"WAIVER OF INDEMNITY
ANY PROVISION OF THIS CONTRACT TO THE CONTRARY NOTWITHSTANDING, THE
GOVERNMENT HEREBY AUTHORIZES AND CONSENTS TO THE USE AND MANUFACTURE,
SOLELY IN THE PERFORMANCE OF THIS CONTRACT, OF ANY INVENTION COVERED BY
THE UNITED STATES PATENTS IDENTIFIED AND LISTED BELOW, AND WAIVES
INDEMNIFICATION BY THE CONTRACTOR WITH RESPECT TO SUCH PATENTS:
(IDENTIFY THE PATENTS BY NUMBER OR BY OTHER MEANS IF MORE APPROPRIATE).'
IN OUR DECISION OF OCTOBER 6, 1958, IT WAS POINTED OUT THAT THE
PROVISIONS OF 28 U.S.C. 1498 PROVIDE AN EXCLUSIVE REMEDY FOR THE
ENFORCEMENT OF PATENTEES' RIGHTS ASSERTED IN CONNECTION WITH PROCUREMENT
OF SUPPLIES BY THE GOVERNMENT AND THAT THE INCLUSION OF THE STANDARD
CLAUSES ENTITLED "NOTICE AND ASSISTANCE REGARDING PATENT INFRINGEMENT,"
"AUTHORIZATION AND CONSENT," AND "PATENT INDEMNITY" IN THE INVITATION
PLACED ALL BIDDERS ON A COMMON BASIS IN THIS REGARD. HOWEVER, THERE IS
NO MANDATORY REQUIREMENT THAT A PATENT INDEMNITY CLAUSE BE INCLUDED IN A
GOVERNMENT CONTRACT, AND SUCH A REQUIREMENT WAS NOT INTENDED BY THE
LANGUAGE QUOTED BY YOU FROM OUR DECISION OF OCTOBER 6, 1958. THE
ADVISABILITY OF USING THE INDEMNITY CLAUSE IS THE PRIMARY RESPONSIBILITY
OF THE PROCURING AGENCY AND, SINCE THE GOVERNMENT'S LIABILITY IS LIMITED
BY THE PROVISIONS OF 28 U.S.C. 1498 TO THE PAYMENT OF REASONABLE
COMPENSATION, THE OMISSION OF THE INDEMNITY CLAUSE WOULD NOT NECESSARILY
RESULT IN HIGHER COST TO THE GOVERNMENT. WE, THEREFORE, FIND NO
JUSTIFIABLE BASIS FOR QUESTIONING THE ADMINISTRATIVE ACTION.
B-139684, JUL. 2, 1959
TO THE GORDON ENTERPRISES:
REFERENCE IS MADE TO YOUR LETTER OF APRIL 29, 1959, REQUESTING
RECONSIDERATION OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED SEPTEMBER
8, 1958, WHICH DISALLOWED YOUR CLAIM IN THE AMOUNT OF $153.36 AS A
REFUND OF THAT AMOUNT PAID BY YOU FOR STORAGE CHARGES ASSESSED AGAINST
YOU BECAUSE OF DELAY IN REMOVING SURPLUS MATERIAL PURCHASED BY YOU FROM
BROOKLEY AIR FORCE BASE, ALABAMA, UNDER CONTRACT NO. AF 01/601/S-2286
DATED JANUARY 24, 1958. IN YOUR LETTER YOU CONTEND THAT THE STORAGE
RATES PAID BY YOU ($0.02 PER SQUARE FOOT FOR INSIDE STORAGE AND $0.01
PER SQUARE FOOT FOR OUTSIDE STORAGE PER DAY) IS UNREASONABLE AS
INDICATED BY THE MUCH LOWER RATES AT ROBINS AIR FORCE BASE, GEORGIA
($0.00364 PER SQUARE FOOT FOR INSIDE STORAGE AND $0.001436 PER SQUARE
FOOT FOR OUTSIDE STORAGE PER DAY). YOU REQUEST REFUND OF AN AMOUNT "IN
PROPORTION TO THE EXCESS STORAGE CHARGES.'
MANY OF THE FACTS OF THE MATTER WERE SET OUT IN THE SETTLEMENT OF
SEPTEMBER 8, 1958, AND NEED NOT BE REPEATED HERE. WITH RESPECT TO THE
RATES CHARGEABLE FOR STORAGE, PARAGRAPH 7 OF GENERAL SALE TERMS AND
CONDITIONS OF THE CONTRACT PROVIDES:
"* * * IF THE PURCHASER FAILS TO REMOVE THE PROPERTY WITHIN THE
SPECIFIED TIME, THE GOVERNMENT SHALL HAVE THE RIGHT TO CHARGE THE
PURCHASER AND COLLECT UPON DEMAND A REASONABLE STORAGE CHARGE IF THE
PROPERTY IS STORED ON PREMISES OWNED OR CONTROLLED BY THE GOVERNMENT, OR
STORE THE PROPERTY ELSEWHERE FOR THE PURCHASER'S ACCOUNT, AND ALL COSTS
INCIDENT TO SUCH STORING, INCLUDING HANDLING AND MOVING CHARGES, SHALL
BE BORNE AND PAID BY THE PURCHASER; IN ADDITION TO THE FOREGOING
RIGHTS, THE GOVERNMENT MAY, AFTER THE EXPIRATION OF THIRTY (30) DAYS
AFTER THE DATE SPECIFIED FOR REMOVAL, AND UPON TEN (10) DAYS' WRITTEN
NOTICE (CALCULATED FROM THE DATE OF MAILING) TO THE PURCHASER (WHICH TEN
(10) DAYS' WRITTEN NOTICE MAY, AT THE OPTION OF THE CONTRACTING OFFICER,
BE INCLUDED EITHER PARTLY OR WHOLLY IN THE THIRTY (30) DAYS SPECIFIED
ABOVE OR MAY BE IN ADDITION THERETO), RESELL THE PROPERTY, APPLYING THE
PROCEEDS THEREFROM AGAINST THE STORAGE AND ANY OTHER COSTS INCURRED FOR
PURCHASER'S ACCOUNT. * * *"
PARAGRAPH C OF ADDITIONAL PROVISIONS OF SALE IS AS FOLLOWS:
"C. STORAGE RATES:
"/1) REFERENCE PARA 7 GENERAL SALE TERMS AND CONDITIONS ON PAGE TWO
(2) THE FOLLOWING STORAGE RATE WILL BE CHARGED TO THE PURCHASER FOR
FAILURE TO REMOVE PROPERTY WITHIN THE SPECIFIED TIME AS DENOTED ON
CONTRACT.
"/2) INSIDE STORAGE CHARGE: RATE OF .02 PER SQ. FOOT PER DAY. THE
MATERIAL STORED IN OR ON PALLETS WILL BE CHARGED BY THE SPACE OCCUPIED
BY THE PALLET.
"/3) OUTSIDE STORAGE CHARGES: RATE OF .01 PER SQ. FOOT PER DAY. THE
MATERIAL STORED IN OR ON PALLETS WILL BE CHARGED BY THE SPACE OCCUPIED
BY THE PALLET.'
HAVING REGARD FOR THE ABOVE-QUOTED PROVISIONS OF THE CONTRACT
SPECIFICALLY FIXING THE RATES CHARGEABLE FOR STORAGE, SUCH RATES ARE NOT
OPEN TO QUESTION AT THIS TIME. SINCE IT APPEARS TO BE AGREED THAT THE
STORAGE PAID BY YOU WAS COMPUTED AT THE RATES FIXED BY THE CONTRACT,
THERE IS NO LEGAL BASIS FOR REFUND OF ANY PORTION OF THE AMOUNT SO PAID.
THEREFORE, THE SETTLEMENT OF
B-139700, JUL. 2, 1959
TO MRS. JULIA B. FURST
ON APRIL 30, 1959, YOUR ATTORNEY FURNISHED INFORMATION IN THE FORM OF
AFFIDAVITS EXECUTED BY YOU AND TWO COLLEAGUES OF YOUR DECEASED HUSBAND
WHO WORKED WITH HIM AT THE PORT OF NEW YORK, BUREAU OF CUSTOMS, TREASURY
DEPARTMENT, IN SUPPORT OF YOUR CLAIM, AS SURVIVING SPOUSE, FOR
ADDITIONAL COMPENSATION FOR NIGHT OR OVERTIME SERVICES AS A CUSTOMS
INSPECTOR. THE AFFIDAVITS SHOW THAT THE DIARIES KEPT BY THE DECEDENT,
FROM WHICH VERIFICATION MIGHT BE MADE OF THE AMOUNT CLAIMED, WERE
DESTROYED BY YOU THREE YEARS AFTER YOUR HUSBAND'S DEATH, AND THAT SUCH
DIARIES WERE USED TO PREPARE THE TABULATION REPRESENTING THE AMOUNT
CLAIMED. BASED THEREON, YOUR ATTORNEY REQUESTS THAT WE ACCEPT THE
AFFIDAVITS AS A PROPER SUBSTITUTE FOR THE DESTROYED DIARIES AND ALLOW
THE CLAIM. YOUR EARLIER CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED
DECEMBER 11, 1958, BECAUSE NO OFFICIAL RECORDS WERE AVAILABLE FROM WHICH
THE TABULATION COULD BE VERIFIED AND BECAUSE YOU HAD NOT FURNISHED THE
DIARIES OR OTHER PERSONAL RECORDS REQUIRED. WE ADVISED THEREIN THAT THE
UNSUPPORTED TABULATION COULD NOT BE ACCEPTED AS THE BASIS FOR ALLOWANCE
OF THE CLAIM BUT THAT UPON
SUBMISSION OF THE DIARIES OR OTHER RECORDS, FURTHER CONSIDERATION
WOULD BE GIVEN TO THAT PORTION OF THE CLAIM NOT BARRED FROM
CONSIDERATION BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061.
IN OUR EFFORTS TO SETTLE THIS CLASS OF CLAIMS WE HAD BEEN CONFRONTED
WITH THE FACT THAT THE OFFICIAL RECORDS OF THE TIME WORKED AND THE
AMOUNTS OF OVERTIME ALREADY PAID TO THE CUSTOMS INSPECTORS INVOLVED HAVE
BEEN DESTROYED BECAUSE OF LAPSE OF TIME. IN THOSE CIRCUMSTANCES WE
DETERMINED THAT WE WOULD ACCEPT COMPUTATIONS BASED UPON PERSONAL
DIARIES, PROVIDED THE DIARIES BE FURNISHED US FOR EXAMINATION ALONG WITH
THE COMPUTATIONS, AND THAT THE BUREAU OF CUSTOMS COULD VERIFY FROM STILL
AVAILABLE PORT RECORDS THAT THE VESSELS IN CONNECTION WITH WHICH
INSPECTIONAL SERVICES WERE ALLEGED TO HAVE BEEN RENDERED WERE IN PORT ON
THE DATES CLAIMED.
WE FEEL THAT THE FOREGOING EVIDENTIARY REQUIREMENTS ARE THE MINIMUM
ONES ACCEPTABLE IN SUPPORT OF THIS CLASS OF CLAIMS. WITHOUT THE DIARIES
OR OTHER RECORDS OF THE ENTIRE ACCOUNT OF THE PERIOD OF THE CLAIM WE
CANNOT DETERMINE WHAT PRIOR PAYMENTS ARE AVAILABLE AS OFFSETS AGAINST
THE ADDITIONAL AMOUNTS CLAIMED. THE POSSIBLE OFFSETS ARISE BECAUSE IN
SOME RESPECTS THE PREVIOUS METHOD OF COMPUTING COMPENSATION WAS MORE
FAVORABLE TO THE INSPECTORS THAN THE METHOD NOW IN USE.
31 U.S.C.A. 71 READS, IN PERTINENT PART, AS FOLLOWS:
"ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED
STATES OR AGAINST IT * * * SHALL BE SETTLED AND ADJUSTED IN THE GENERAL
ACCOUNTING OFFICE.'
THE STATUTE DOES NOT PRESCRIBE WHAT EVIDENCE SHALL BE THE BASIS FOR
THE ALLOWANCE OF THE CLAIM.
THAT IS LEFT TO OUR DISCRETION. IN ORDINARY CIRCUMSTANCES WHERE IT
IS PRACTICABLE TO FURNISH COMPLETE INFORMATION AS TO THE STATE OF THE
ACCOUNT OF ANY DECEASED INDIVIDUAL FORMERLY EMPLOYED BY THE GOVERNMENT,
SUCH COMPLETE INFORMATION IS REQUIRED. BUT WHERE SUCH INFORMATION
CANNOT BE FURNISHED THERE IS DISCRETION AS TO WHAT OTHER EVIDENCE MAY
REASONABLY ESTABLISH THAT THE UNITED STATES IS INDEBTED IN A SPECIFIC
AMOUNT TO THE ESTATE OF THE DECEASED FORMER EMPLOYEE. WE MUST, IN ALL
INSTANCES, PROTECT THE INTEREST OF THE GOVERNMENT. 22 COMP. GEN. 269.
IN VIEW OF THE FOREGOING FACTS AND CIRCUMSTANCES WE CONCLUDE THAT WE
COULD NOT PROPERLY PROTECT THE INTEREST OF THE UNITED STATES IN THIS
MATTER IF WE ACCEPTED THE AFFIDAVITS PRESENTED AS A BASIS FOR ALLOWING
THE CLAIM. THEREFORE, OUR SETTLEMENT OF DECEMBER 11, 1958, IS
SUSTAINED.
B-139886, JUL. 2, 1959
TO THE SECRETARY OF THE TREASURY:
ON MARCH 17, 1959, THE ACTING SECRETARY OF THE TREASURY, A. GILMORE
FLUES, RECOMMENDED THE RELIEF FROM LIABILITY OF ACCOUNTABLE OFFICERS,
FRANK A. THORNTON, COLLECTOR OF CUSTOMS AT SAN DIEGO, CALIFORNIA, AND J.
S. BOGAN, DEPUTY COLLECTOR OF CUSTOMS AT SAN YSIDRO, CALIFORNIA, FOR THE
LOSS OF GOVERNMENT FUNDS UNDER THE ACT OF AUGUST 1, 1947, PUBLIC LAW
321, AS AMENDED, 31 U.S.C. 82A-1, ON THE BASIS THAT THE LOSS OCCURRED
THROUGH NO NEGLIGENCE OF THE ACCOUNTABLE OFFICERS BUT BY REASON OF THE
ACT OR OMISSION OF ONE OF THEIR SUBORDINATES. THE EVIDENCE SUBMITTED
WITH THE LETTER INCLUDES REPORTS OF THE FEDERAL BUREAU OF INVESTIGATION
AND AFFIDAVITS OF INDIVIDUALS ALLEGEDLY POSSESSING INTIMATE KNOWLEDGE OF
THE FACTS IN THE CASE.
THE RECORD SHOWS THAT ON FEBRUARY 8, 1958, DANA M. DAVIS, CUSTOMS
OFFICER AT THE SUBPORT SAN YSIDRO, WORKED THE SHIFT FROM 8 A.M. TO 4
P.M., AND AT THE END OF HIS SHIFT HE PLACED COLLECTIONS IN THE SUM OF
$515, TOGETHER WITH ASSOCIATED DOCUMENTS, IN AN ENVELOPE WHICH HE
LABELED AND PLACED IN A SAFE PURSUANT TO THE USUAL PROCEDURES. ON
TUESDAY, FEBRUARY 11, 1958, THE LOSS OF THAT ENVELOPE WAS DISCOVERED BY
GRACE G. JOHNSON, THE SUBPORT CASHIER, WHEN SHE DETECTED CERTAIN
UNACCOUNTED FOR SERIAL NUMBERS WHICH REPRESENTED MR. DAVIS' ENVELOPE.
MEANWHILE, ON MONDAY, FEBRUARY 10, 1958, MRS. HELEN S. WILLIAMS, TRAINEE
CASHIER, REMOVED THE ACCUMULATED SHIFT ENVELOPES FROM THE SAFE AND
PREPARED THE CONTENTS FOR TRANSMITTAL TO HEADQUARTERS AT SAN DIEGO.
MRS. WILLIAMS DID NOT REPORT AS MISSING THE ENVELOPE WHICH MR. DAVIS
CLAIMS THAT HE PLACED IN THE SAFE, ALTHOUGH SHE ALLEGEDLY SHOULD HAVE
DISCOVERED THE LOSS IN THE NORMAL COURSE OF HER DUTIES.
THE SAFE IN WHICH THE ACCUMULATED SHIFT ENVELOPES WERE PLACED WAS
LOCATED IN THE BAGGAGE AREA BEHIND THE SERVICE COUNTER. THAT AREA WAS
IN FULL VIEW OF CUSTOMERS AND WAS ACCESSIBLE WITHOUT SUPERVISION TO SUCH
CUSTOMERS, CUSTOMS BROKERS AS WELL AS ALL INSPECTORS, PRISONERS, AND
LAW-ENFORCEMENT OFFICERS FROM MANY DEPARTMENTS AND AGENCIES AS WELL AS
33 EMPLOYEES OTHERWISE. NOTWITHSTANDING THIS, THE SAFE WAS LOCKED ONLY
FROM 12 MIDNIGHT TO 8 A.M., DURING WHICH TIME THE BAGGAGE ROOM WAS NOT
USED.
THE FILE INCLUDES THE STATEMENT OF ROBERT S. BAKER, INVESTIGATOR OF
THE FBI, THAT U.S. CUSTOMS INSPECTOR DANA M. DAVIS SUSPECTS MRS. HELEN
S. WILLIAMS, A TRAINEE FOR THE POSITION OF CASHIER, BECAUSE OF HER PAST
RECORD OF BORROWING FROM OTHER EMPLOYEES. MRS. WILLIAMS ALLEGEDLY WAS
DISCHARGED FOR HER FAILURE TO REPORT THE THEFT, WHICH SHE ALLEGEDLY
SHOULD HAVE DETECTED IN THE NORMAL COURSE OF HER DUTIES; BUT THERE IS
NO EVIDENCE IN THE RECORD THAT SHE HAD ANYTHING TO DO WITH THE LOSS OF
THE ENVELOPE.
SECTION 1 OF THE ACT OF AUGUST 1, 1947, AS AMENDED, 31 U.S.C. 82A-1,
PROVIDES IN PERTINENT PART AS FOLLOWS:
"THE GENERAL ACCOUNTING OFFICE IS AUTHORIZED, AFTER CONSIDERATION OF
THE PERTINENT FINDINGS AND IF IN CONCURRENCE WITH THE DETERMINATIONS AND
RECOMMENDATIONS OF THE HEAD OF THE DEPARTMENT OR INDEPENDENT
ESTABLISHMENT CONCERNED, TO RELIEVE ANY DISBURSING OR OTHER ACCOUNTABLE
OFFICER OR AGENT OR FORMER DISBURSING OR OTHER ACCOUNTABLE OFFICER OR
AGENT OF ANY SUCH DEPARTMENT OR INDEPENDENT ESTABLISHMENT OF THE
GOVERNMENT CHARGED WITH RESPONSIBILITY ON ACCOUNT OF PHYSICAL LOSS OR
DEFICIENCY OF GOVERNMENT FUNDS, VOUCHERS, RECORDS, CHECKS, SECURITIES,
OR PAPERS IN HIS CHARGE, OR TO AUTHORIZE THE REIMBURSEMENT, FROM ANY
APPROPRIATION OR FUND AVAILABLE FOR PURPOSES OF THE ACTIVITY IN WHICH
THE LOSS OR DEFICIENCY OCCURRED, OF AMOUNTS PAID SUBSEQUENT TO AUGUST 1,
1947, BY OR ON BEHALF OF THE OFFICER OR AGENT IN RESTITUTION OF THE LOSS
OR DEFICIENCY, IF THE HEAD OF THE DEPARTMENT OR INDEPENDENT
ESTABLISHMENT DETERMINES (1) THAT SUCH LOSS OR DEFICIENCY OCCURRED WHILE
SUCH OFFICER OR AGENT WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL
DUTIES, OR THAT SUCH LOSS OR DEFICIENCY OCCURRED BY REASON OF THE ACT OR
OMISSION OF A SUBORDINATE OF SUCH OFFICER OR AGENT; AND (2) THAT SUCH
LOSS OR DEFICIENCY OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF
SUCH OFFICER OR AGENT. * * *"
THE PLACING OF ENVELOPES CONTAINING CASH IN AN UNLOCKED SAFE AS
LOCATED IN THIS CASE WITH ACCESSIBILITY TO NUMEROUS PERSONS CONSTITUTES
A PRIMA FACIE CASE OF NEGLIGENCE. IT DOES NOT APPEAR OF RECORD THAT IN
THUS USING THE UNLOCKED SAFE THE SUBORDINATES DEPARTED FROM THE
ESTABLISHED CUSTOM AND PROCEDURE NOR DOES THE RECORD ESTABLISH THAT THE
LOSS OCCURRED BY REASON OF AN ACT OR OMISSION OF THE SUBORDINATES.
HOWEVER, NEGLIGENCE MUST BE IMPUTED TO THE ACCOUNTABLE OFFICERS IN THE
ABSENCE OF SATISFACTORY EVIDENCE TO THE CONTRARY.
ON THE BASIS OF THE PRESENT RECORD, I AM UNABLE TO CONCUR WITH THE
ADMINISTRATIVE DETERMINATION OF LACK OF NEGLIGENCE ON THE PART OF THE
ACCOUNTABLE OFFICERS AND THAT THE LOSS WAS DUE TO AN ACT OR OMISSION OF
THE SUBORDINATES, AND, THEREFORE, CANNOT GRANT RELIEF PURSUANT TO THE
APPLICABLE STATUTE.
B-137999, JUL. 1, 1959
TO THE AUTHORIZED CERTIFYING OFFICER, OUTDOOR RECREATION RESOURCES
REVIEW COMMISSION:
THIS REFERS TO YOUR LETTER OF MAY 11, 1959, WITH ENCLOSURES,
INCLUDING BUREAU VOUCHER NO. 30640 FOR $126.72 STATED IN FAVOR OF
ELIZABETH POSTOSKIE, IMPREST FUND CASHIER, OUTDOOR RECREATION RESOURCES
REVIEW COMMISSION, REQUESTING OUR DECISION AS TO WHETHER THE VOUCHER
PROPERLY MAY BE CERTIFIED FOR PAYMENT.
THE SUM CLAIMED REPRESENTS THE AMOUNT REQUIRED TO REPLENISH FUNDS
USED TO PURCHASE GROCERIES AND MISCELLANEOUS ITEMS DEEMED NECESSARY FOR
SERVING CONFERENCE ROOM LUNCHES TO THE 15-MEMBER OUTDOOR RECREATION
RESOURCES REVIEW COMMISSION. THE RECORD DISCLOSES THAT FOOD WAS
PURCHASED AND LUNCHES SERVED TO COMMISSION MEMBERS ON FIVE SEPARATE
OCCASIONS FROM JANUARY 20 THROUGH MARCH 23, 1959; THAT THESE IN-MEETING
LUNCHES HAD THE ADVANCE APPROVAL OF THE MEMBERS, AND THAT A SUBSTANTIAL
SAVING ACCRUED TO THE GOVERNMENT AS A RESULT THEREOF.
YOUR DOUBT IN THE MATTER ARISES BECAUSE OF TWO ITEMS TOTALING $8.30
CLAIMED ON SUBVOUCHERS NOS. 39 AND 40, THE SUM OF $3 REPRESENTING THE
PRICE PAID FOR FLOWERS PURCHASED ON DECEMBER 11, 1958, PRIOR TO THE
PERIOD STIPULATED ABOVE, AND THE BALANCE THEREOF COVERING THE COST OF
ONE CARTON (12-24 OZ. BOTTLES) OF MOUNTAIN VALLEY (MINERAL) WATER
PURCHASED FOR COMMISSION MEMBERS ON FEBRUARY 20, 1959. YOU REFER TO OUR
DECISION TO MR. R. ANDERSON, AUTHORIZED CERTIFYING OFFICER FOR THE
COMMISSION, DATED DECEMBER 16, 1958, B-137999, WHICH HELD THAT THE COST
OF LUNCHES FURNISHED TO COMMISSION MEMBERS FALLS WITHIN THE LANGUAGE OF
SECTION 3 (B) OF THE OUTDOOR RECREATION RESOURCES REVIEW ACT APPROVED
JUNE 28, 1958, 72 STAT. 238. THAT STATUTE PROVIDES THAT ,EACH MEMBER
SHALL BE ENTITLED TO REIMBURSEMENT FOR ACTUAL TRAVEL AND SUBSISTENCE
EXPENSE INCURRED IN THE SERVICES OF THE COMMISSION.'
THE SUM OF $3 EXPENDED FOR FLOWERS, OF COURSE, IS NOT A REIMBURSABLE
EXPENSE. THIS PURCHASE WAS NOT FOR SUBSISTENCE; NOR IS IT POSSIBLE TO
CONSTRUE SUCH A PURCHASE AS BEING INCURRED "IN THE SERVICES OF THE
COMMISSION.' CONCERNING THE EXPENSE FOR DRINKING WATER, THE RULE
GENERALLY APPLIED IN THE CASE OF THE PURCHASE OF DRINKING WATER BY AN
OFFICER OR EMPLOYEE ENTITLED TO REIMBURSEMENT OF ACTUAL EXPENSES OF
SUBSISTENCE IS THAT REIMBURSEMENT IS NOT AUTHORIZED UNLESS IT IS
ESTABLISHED THAT THERE IS A REASONABLE NECESSITY THEREFOR FROM THE
STANDPOINT OF THE OFFICER OR EMPLOYEE. IN THE ABSENCE OF ANY SUCH
SHOWING WE CONCLUDE THAT THE PURCHASE OF DRINKING (MINERAL) WATER AS
MADE HERE IS NOT A PROPER CHARGE AGAINST APPROPRIATED FUNDS. SEE 5
COMP. GEN. 90. CF. 28 ID. 627; 31 ID. 501. THEREFORE, UPON THE
PRESENT RECORD, THAT PORTION OF THE VOUCHER INVOLVING EXPENSES ($8.30)
INCURRED FOR FLOWERS AND MOUNTAIN VALLEY WATER MAY NOT BE CERTIFIED FOR
PAYMENT.
B-139065, JUL. 1, 1959
TO CAPTAIN LARA P. GOOD, 04977, RETIRED:
YOUR LETTER OF FEBRUARY 24, 1959, REQUESTS REVIEW OF OUR SETTLEMENT
OF DECEMBER 30, 1958, WHICH AUTHORIZED ADDITIONAL RETIREMENT PAY FOR THE
PERIOD OF AUGUST 6, 1948, THROUGH OCTOBER 31, 1958, UNDER THE THEORY OF
GORDON V. UNITED STATES, 134 C.CLS. 840. YOU REQUEST REVIEW OF THAT
SETTLEMENT BECAUSE YOU FEEL THAT NOT ALL OF THE PERTINENT FACTS WERE
AVAILABLE TO THIS OFFICE AT THE TIME OF SETTLEMENT, AND YOU ALSO PRESENT
TWO ALTERNATE THEORIES REGARDING INCREASED RETIREMENT PAY WHICH YOU FEEL
IS DUE TO YOU.
IT APPEARS FROM THE RECORD THAT YOU WERE PLACED ON THE RETIRED LIST
IN THE GRADE OF CAPTAIN EFFECTIVE DECEMBER 31, 1922, FOR DISABILITY,
PURSUANT TO THE PROVISIONS OF SECTION 1251, REVISED STATUTES, UPON
COMPLETION OF OVER SIX YEARS' SERVICE. THE APPLICATION OF THE THEORY OF
THE GORDON CASE INCREASED YOUR SERVICE FOR LONGEVITY PAY PURPOSES TO
OVER 27 YEARS. OUR SETTLEMENT OF DECEMBER 30, 1958, ALLOWING YOU
$14,097.18 INCLUDED ADDITIONAL RETIRED PAY FOR THE PERIOD OF AUGUST 6,
1948, THROUGH OCTOBER 31, 1958. YOUR CLAIM FOR THE PERIOD TO AUGUST 6,
1948, WAS DENIED PURSUANT TO THE PROVISIONS OF THE ACT OF OCTOBER 9,
1940, 54 STAT. 1061, WHICH READS AS FOLLOWS:
"THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY A 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: 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.'
YOU STATE THAT THIS DENIAL WAS IN ERROR, SINCE YOU FILED A CLAIM IN
THIS OFFICE FOR INCREASED RETIREMENT PAY IN 1945. AS PROOF OF THIS
ASSERTION YOU HAVE SUBMITTED PHOTOSTATIC COPIES OF SEVERAL LETTERS TO
AND FROM THE ARMY FINANCE OFFICE DURING THE PERIOD OF LATE 1944 AND
EARLY 1945. THE LETTERS FROM THE ARMY FINANCE OFFICE DENIED YOUR CLAIMS
AND ADVISED YOU TO SUBMIT YOUR CLAIM TO THE GENERAL ACCOUNTING OFFICE.
A PHOTOSTATIC COPY OF WHAT YOU STATE IS A CARBON COPY OF
LETTER ADDRESSED TO THE GENERAL ACCOUNTING OFFICE DATED JUNE 15,
1945, IS INCLUDED AS EVIDENCE THAT A CLAIM WAS ACTUALLY MADE.
THAT LETTER MAKES A CLAIM FOR INCREASED RETIRED PAY ON TWO THEORIES,
ONE SIMILAR TO THAT FOUND VALID BY THE COURT OF CLAIMS IN THE GORDON
CASE. SUCH A CLAIM, IF PROPERLY FILED IN THE GENERAL ACCOUNTING OFFICE,
WOULD TOLL THE ABOVE QUOTED STATUTE. HOWEVER, THERE IS NO RECORD OF
RECEIPT OF YOUR LETTER OF JUNE 15, 1945, IN THIS OFFICE. THE ONLY
RECORD OF PRIOR CLAIMS FILED BY YOU WITH THIS OFFICE WAS DESTROYED
PURSUANT TO LAW ON OR ABOUT APRIL 11, 1958. A SEARCH OF RECORDS WITH
CLAIMS NUMBERS SIMILAR TO THAT OF THE FILE DESTROYED INDICATES THAT THE
FILE DESTROYED AT THAT TIME CARRIED A NUMBER ASSIGNED IN THE LAST
QUARTER OF 1924. NO FURTHER EVIDENCE OF THE CONTENTS OF THAT FILE IS
PRESENTLY AVAILABLE. IT CAN BE SEEN, THEREFOR, THAT THIS OFFICE HAS NO
EVIDENCE OF RECORD TO SUPPORT YOUR CONTENTION THAT A CLAIM WAS ACTUALLY
FILED SOMETIME DURING 1945. IF SUCH A CLAIM HAD BEEN RECEIVED HERE, WE
WOULD HAVE TAKEN ACTION ON IT AND DOUBTLESS YOU WOULD HAVE BEEN NOTIFIED
OF THAT ACTION. THE PHOTOSTATIC COPY SUBMITTED CANNOT BE CONSIDERED
SUFFICIENT TO SUPPORT PAYMENT IN ABSENCE OF OTHER EVIDENCE INDICATING
THAT THE CLAIM WAS ACTUALLY RECEIVED BY THIS OFFICE AS REQUIRED BY THE
QUOTED STATUTE.
THE BURDEN OF PROOF OF A CLAIM AGAINST THE UNITED STATES IS ON THE
CLAIMANT. IT FOLLOWS THAT HE MUST PRESENT EVIDENCE SUFFICIENT TO
SUPPORT PAYMENT. THIS REMAINS TRUE EVEN WHEN RECORDS WHICH MIGHT
SUPPORT THE CLAIMANT HAVE BEEN DESTROYED PURSUANT TO LAW. B-87560,
FEBRUARY 9, 1951; B-85772, FEBRUARY 8, 1950. ACCORDINGLY, NO PAYMENT
OF ADDITIONAL RETIREMENT PAY FOR THE PERIOD OF NOVEMBER 11, 1943,
THROUGH AUGUST 5, 1948, MAY BE MADE UPON THE EVIDENCE PRESENTLY
AVAILABLE TO THIS OFFICE.
YOUR LETTER ALSO STATES THAT ON VARIOUS OCCASIONS YOU HAVE FILED
CLAIMS WITH THE FINANCE OFFICE, UNITED STATES ARMY, FOR ADDITIONAL
RETIRED PAY UNDER THE THEORY OF THE GORDON CASE AND THAT ALL SUCH CLAIMS
WERE DENIED PRIOR TO OUR SETTLEMENT OF DECEMBER 30, 1958. WHILE THE
FACT THAT CLAIMS WERE MADE WITH THE FINANCE OFFICE, U.S. ARMY, IS NOT
DENIED, SUCH A FILING DOES NOT CONSTITUTE A FILING IN THIS OFFICE WITHIN
THE TERMS OF THE ACT OF OCTOBER 9, 1940. 32 COMP. GEN. 267; B-131512,
SEPTEMBER 3, 1957. THEREFORE, CLAIMS FILED WITH THE FINANCE OFFICE,
UNITED STATES ARMY, CANNOT BE CONSIDERED TO HAVE TOLLED THE BAR OF THE
ACT OF OCTOBER 9, 1940, AND HENCE, PROVIDES NO BASIS FOR CONSIDERATION
OF YOUR CLAIM BY THIS OFFICE. YOU MAY ALSO BE INFORMED THAT THE BAR OF
THE QUOTED STATUTE IS MANDATORY AND CANNOT BE WAIVED BY THIS OFFICE OR
BY ANY OFFICER OF THE GOVERNMENT.
YOUR LETTER ALSO REQUESTS REVIEW OF THAT PORTION OF OUR SETTLEMENT OF
DECEMBER 30, 1958, WHICH DENIED YOUR CLAIM FOR PAY BASED UPON THE PAY
RECEIVED BY A MAJOR WITH OVER 27 YEARS' SERVICE. AVAILABLE ARMY RECORDS
AND INFORMATION FURNISHED BY THE ADJUTANT GENERAL INDICATE THAT THE
HIGHEST RANK SATISFACTORILY HELD BY YOU WAS CAPTAIN. IT APPEARS THAT
YOUR CLAIM FOR RETIREMENT PAY AS A MAJOR WITH OVER 27 YEARS SERVICE IS
BASED UPON A MISUNDERSTANDING OF THE PAY READJUSTMENT ACT OF 1942, 56
STAT. 359, WHICH WAS IN EFFECT AT THE TIME OF YOUR RE-RETIREMENT ON
NOVEMBER 11, 1943. THE APPLICABLE PORTION OF THE STATUTE IS AS FOLLOWS:
"THE PAY OF THE FIFTH PERIOD SHALL BE PAID TO LIEUTENANT COLONELS OF
THE ARMY, COMMANDERS OF THE NAVY, AND OFFICERS OF CORRESPONDING GRADE
WHO ARE NOT ENTITLED TO THE PAY OF THE SIXTH PERIOD; AND TO MAJORS OF
THE ARMY, LIEUTENANT COMMANDERS OF THE NAVY, AND OFFICERS OF
CORRESPONDING GRADE, WHO HAVE COMPLETED TWENTY-THREE YEARS' SERVICE.
"THE PAY OF THE FOURTH PERIOD SHALL BE PAID TO MAJORS OF THE ARMY,
LIEUTENANT COMMANDERS OF THE NAVY, AND OFFICERS OF CORRESPONDING GRADE
WHO ARE NOT ENTITLED TO THE PAY OF THE FIFTH PERIOD; TO CAPTAINS OF THE
ARMY, LIEUTENANTS OF THE NAVY, AND OFFICERS OF CORRESPONDING GRADE, WHO
HAVE COMPLETED SEVENTEEN YEARS' SERVICE.'
YOUR CONTENTION APPEARS TO BE THAT, INASMUCH AS A CAPTAIN WITH OVER
17 YEARS' SERVICE WAS TO RECEIVE THE PAY OF THE FOURTH PERIOD, WHICH WAS
THE PAY GRADE ASSIGNED TO A MAJOR, AND SINCE A MAJOR WITH OVER 23 YEARS'
SERVICE WAS TO RECEIVE THE PAY OF THE FIFTH PERIOD, A CAPTAIN WITH OVER
23 YEARS' SERVICE SHOULD ALSO RECEIVE THE PAY OF THE FIFTH PERIOD. SUCH
CONTENTION IS WITHOUT BASIS IN THE LANGUAGE OF THE STATUTE. IT CLEARLY
STATED THAT A CAPTAIN WHO HAS COMPLETED 17 YEARS' SERVICE SHALL RECEIVE
THE PAY OF THE FOURTH PERIOD AND THAT A MAJOR WHO HAS COMPLETED 23
YEARS' SERVICE SHALL RECEIVE THE PAY OF THE FIFTH PERIOD. THERE IS
NOTHING TO INDICATE THAT BECAUSE A CAPTAIN HAS COMPLETED 23 YEARS OF
SERVICE HE SHALL BE ENTITLED TO THE SAME PAY AS A MAJOR WITH A SIMILAR
AMOUNT OF SERVICE. ON THE CONTRARY THE CLEAR IMPORT OF THE STATUTE IS
TO ALLOW THE PAY OF THE NEXT HIGHER PERIOD TO OFFICERS WHO HAVE
COMPLETED THE STIPULATED TERM OF SERVICE. HAD CONGRESS INTENDED TO
AUTHORIZE PAYMENT ON THE THEORY YOU ADVANCE, SOME INDICATION OF SUCH
INTENT WOULD NECESSARILY HAVE BEEN INCLUDED IN THE STATUTE.
IT APPEARS THAT WHILE ON ACTIVE DUTY YOU WERE NOT DRAWING THE PAY OF
A MAJOR WITH OVER 23 YEARS' SERVICE, BUT RATHER DRAWING THE PAY OF A
CAPTAIN WITH OVER 23 YEARS' SERVICE, WHICH IS BASED UPON THE SAME PAY
PERIOD (FOURTH) AS THAT DRAWN BY A MAJOR WITH LESS THAN 23 YEARS
SERVICE.
YOU CANNOT BE CONSIDERED TO BE ENTITLED TO RETIREMENT PAY AS A MAJO
WITH OVER 23 YEARS' SERVICE, SINCE YOU DID NOT HOLD THAT RANK WHILE ON
ACTIVE DUTY AND HAVE NEVER BEEN ENTITLED TO PAY BASED UPON THAT RANK AND
PERIOD OF SERVICE. FOR THIS REASON IT APPEARS THAT THE SETTLEMENT OF
DECEMBER 30, 1958, WHICH ALLOWED YOU THE DIFFERENCE BETWEEN 75 PERCENT
OF ACTIVE DUTY PAY AS A CAPTAIN RETIRED FOR DISABILITY WITH OVER 6
YEARS' SERVICE AND 75 PERCENT OF ACTIVE DUTY PAY FOR A CAPTAIN WITH OVER
27 YEARS' SERVICE WAS CORRECT AND CONSISTENT WITH THE PAY READJUSTMENT
ACT OF 1942, AND SUBSEQUENTLY AUTHORIZED PAY INCREASES FOR RETIRED
PERSONNEL.
YOUR THIRD CLAIM FOR INCREASED RETIRED PAY IS BASED UPON YOUR SERVICE
IN THE CALIFORNIA NATIONAL GUARD IN THE RANK OF COLONEL WITH DATE OF
RANK FROM FEBRUARY 25, 1947, AND YOUR INTERPRETATION OF GRAYSON V.
UNITED STATES, 137 C.CLS. 779. AS PROOF OF THIS CLAIM YOU HAVE
FORWARDED PHOTOSTATIC COPIES OF YOUR COMMISSION BY THE STATE OF
CALIFORNIA, AND STATE OF CALIFORNIA MILITARY DEPARTMENT SPECIAL ORDERS
NO. 186, DATED SEPTEMBER 27, 1956, ACCEPTING YOUR VOLUNTARY RESIGNATION
IN THE RANK OF COLONEL AND PLACING YOU UPON THE RETIRED LIST OF THE
CALIFORNIA NATIONAL GUARD IN THE RANK OF BRIGADIER GENERAL AND A
STATEMENT OF SERVICE PREPARED BY YOU.
THE FACTS ALLEGED BY YOU CONCERNING YOUR SERVICE IN THE CALIFORNIA
NATIONAL GUARD ARE NOT DISPUTED BY THIS OFFICE. HOWEVER, THOSE FACTS DO
NOT APPEAR TO ENTITLE YOU TO RETIRED PAY BASED UPON THE RANK ATTAINED IN
THE NATIONAL GUARD. YOUR INTERPRETATION OF THE GRAYSON CASE APPEARS
ERRONEOUS, SINCE THE MEMBER INVOLVED IN THAT CASE WAS NOT AWARDED
ADDITIONAL RETIRED PAY ON THE BASIS OF A HIGHER RANK ATTAINED DURING
SERVICE IN A NATIONAL GUARD UNIT, BUT RATHER ON THE BASIS OF A HIGHER
RANK GAINED WHILE ON ACTIVE FEDERAL SERVICE AS A BRIGADIER GENERAL, ARMY
OF THE UNITED STATES. THE ADDITIONAL RETIRED PAY AWARDED IN THE GRAYSON
CASE IS BASED UPON THE COURT OF CLAIMS INTERPRETATION OF SECTION 203 (A)
OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT
OF 1948, 62 STAT. 1081, 1085. SECTION 203 (A) PROVIDED AS FOLLOWS:
"SEC. 203 (A). EACH COMMISSIONED OFFICER OF THE REGULAR ARMY OR OF
ANY RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES, AND EACH
COMMISSIONED OFFICER OF THE REGULAR AIR FORCE OR OF ANY RESERVE
COMPONENT OF THE AIR FORCE OF THE UNITED STATES, HERETOFORE OR HEREAFTER
RETIRED OR GRANTED RETIREMENT PAY UNDER ANY PROVISION OF LAW SHALL BE
ADVANCED ON THE APPLICABLE OFFICERS' RETIRED LIST TO THE HIGHEST
TEMPORARY GRADE IN WHICH HE SERVED SATISFACTORILY FOR NOT LESS THAN SIX
MONTHS WHILE SERVING ON ACTIVE DUTY, AS DETERMINED BY THE COGNIZANT
SECRETARY, DURING THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30, 1946, AND
SHALL RECEIVE RETIRED PAY AT THE RATE PRESCRIBED BY LAW, COMPUTED ON THE
BASIS OF THE BASE AND LONGEVITY PAY WHICH HE WOULD RECEIVE IF SERVING ON
ACTIVE DUTY IN SUCH HIGHER GRADE: PROVIDED, THAT RETIRED PAY OF SUCH
HIGHEST GRADE SHALL BE WITHOUT CREDIT FOR SERVICE ON THE RETIRED LIST.'
AN EXPLANATION OF THE PURPOSE OF THIS SECTION AND THE EFFECT OF THE
GRAYSON CASE WAS INCLUDED IN 37 COMP. GEN. 538 (COPY ENCLOSED). THE
EXPLANATION OF SECTION 203 (A) IN PERTINENT PART IS AS FOLLOWS:
"THE PERTINENT PROVISIONS OF SECTION 203 (A) OF THE 1948 LAW--- AS
AMENDED BY PUBLIC LAW 547, 84TH CONGRESS, MAY 31, 1956, 70 STAT. 222,
DELETING THE PHRASE "DURING THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30,
1946,"--- WERE REPLACED BY SECTION 3963 (A), TITLE 10, U.S. CODE, ACT OF
AUGUST 10, 1956, 70A STAT. 230, 231. A COMMISSIONED OFFICER WITHIN THE
SCOPE OF SECTION 3963 (A) OF THE 1956 ACT IS ENTITLED TO A RETIRED GRADE
EQUAL TO THE "HIGHEST TEMPORARY GRADE" IN THE ARMY IN WHICH HE "SERVED
ON ACTIVE DUTY SATISFACTORILY" AS DETERMINED BY THE SECRETARY OF THE
ARMY "FOR NOT LESS THAN SIX MONTHS.' THE TERM "ACTIVE DUTY" IS DEFINED
IN SECTION 101 (22), TITLE 10, AND IN SECTION 101 (11), TITLE 32, U.S.
CODE, 70A STAT. 5,597, RESPECTIVELY, AS "FULL-TIME DUTY IN THE ACTIVE
MILITARY SERVICE OF THE UNITED STATES.' THE DEFINITION SAYS THAT "ACTIVE
DUTY" INCLUDES "DUTY ON THE ACTIVE LIST, FULL-TIME TRAINING DUTY, ANNUAL
TRAINING DUTY, AND ATTENDANCE, WHILE IN THE ACTIVE MILITARY SERVICE, AT
A SCHOOL DESIGNATED AS A SERVICE SCHOOL BY LAW OR BY THE SECRETARY OF
THE MILITARY DEPARTMENT CONCERNED.' "
IT IS CLEAR THAT THE FACTS PRESENTED BY YOU DO NOT ENTITLE YOU TO
ADDITIONAL RETIRED PAY UNDER THE THEORY OF THE GRAYSON CASE. THE
SECRETARY OF THE ARMY HAS NOT CERTIFIED THAT YOU AT ANY TIME HELD A RANK
HIGHER THAN CAPTAIN WHILE IN THE ACTIVE FEDERAL SERVICE; ON THE
CONTRARY, AS PREVIOUSLY STATED, THE ADJUTANT GENERAL HAS INDICATED THAT
THE HIGHEST RANK YOU HAVE HELD WHILE ON ACTIVE FEDERAL SERVICE WAS
CAPTAIN. IT THEREFORE APPEARS THAT THERE IS NO MERIT IN YOUR CLAIM FOR
INCREASED RETIREMENT PAY.
ACCORDINGLY, OUR SETTLEMENT OF DECEMBER 30, 1958, MUST BE, AND IS
SUSTAINED.
B-139359, JUL. 1, 1959
TO MR. W. R. WILSON, AUTHORIZED CERTIFYING OFFICER, OFFICE OF CIVIL
AND DEFENSE MOBILIZATION:
YOUR LETTER OF APRIL 15, 1959, REQUESTS OUR DECISION AS TO WHETHER,
UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED, PAYMENT OF PER
DIEM FROM TIME OF DEPARTURE FROM OR ARRIVAL AT THE OFFICIAL STATION IS
AUTHORIZED ON A TRAVEL VOUCHER TRANSMITTED THEREWITH IN FAVOR OF MR.
WILLARD D. WHITFIELD.
YOU SAY THAT MR. WHITFIELD CLAIMS PER DIEM INCIDENTAL TO OFFICIAL
TRAVEL FROM THE TIME HE LEFT HIS OFFICIAL STATION AT HARVARD,
MASSACHUSETTS, 10:00 P.M., UNTIL DEPARTURE OF THE RAIL CARRIER FROM THE
TERMINAL AT BOSTON, MASSACHUSETTS, 12:30 A.M., AND FROM THE TIME OF
RETURN TO THE RAIL TERMINAL TO THE TIME OF RETURN TO OFFICIAL STATION IN
ADDITION TO THE TRAVEL TIME BY COMMON CARRIER. YOU ALSO SAY THAT THE
DISTANCE BETWEEN HARVARD AND BOSTON IS 37 MILES AND THAT MILEAGE TO AND
FROM BOSTON AT THE RATE OF ?10 PER MILE WAS AUTHORIZED TO MR.
WHITFIELD. IN ADDITION, YOU SAY THAT IN THE PAST YOUR AGENCY HAS
ALLOWED PER DIEM FROM THE TIME OF DEPARTURE FROM THE OFFICIAL DUTY
STATION OR RESIDENCE, WHEN THE COMMON CARRIER TERMINAL IS A CONSIDERABLE
DISTANCE FROM THE DESIGNATED POST OF DUTY AND A MEANS OF TRANSPORTATION
OTHER THAN COMMON CARRIER IS USED TO REACH THE COMMON CARRIER TERMINAL.
YOU HAVE SAID THAT THIS PROCEDURE ARISES FROM THE FACT THAT SIX OF YOUR
REGIONAL OFFICES ARE LOCATED AT OUT OF THE WAY PLACES RANGING IN
DISTANCE FROM 25 TO 55 MILES FROM COMMON CARRIER TERMINALS AND THAT THE
MOST ECONOMICAL MODE OF TRANSPORTATION AVAILABLE IS PRIVATELY OR
GOVERNMENT OWNED AUTOMOBILE.
IN 38 COMP. GEN. 511 (B-51729, JANUARY 29, 1959), REFERRED TO IN YOUR
LETTER, WE HELD THAT SECTION 6.9C OF THE STANDARDIZED GOVERNMENT TRAVEL
REGULATIONS "RESTRICTS THE COMMENCEMENT OR TERMINATION OF PER DIEM TO
THE TIME OF ACTUAL DEPARTURE FROM OR ARRIVAL AT THE REGULAR TERMINAL OF
THE TRAIN, BOAT, OR OTHER CONVEYANCE USED BY THE TRAVELER, AND THIS
APPLIES IRRESPECTIVE OF WHETHER THE TERMINAL OR PLACE OF RESIDENCE IS
WITHIN OR OUTSIDE THE HEADQUARTERS OF THE EMPLOYEE.'
ALSO, SEE SECTION 6.9C, AS REVISED EFFECTIVE AUGUST 1, 1959, TO THE
SAME EFFECT.
THEREFORE, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE
CERTIFIED FOR PAYMENT.
B-139454, JUL. 1, 1959
TO SIDRAN SPORTSWEAR, INC. :
FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 18, 1959, AND TO
YOUR TELEGRAM OF MAY 22, 1959, PROTESTING THE REJECTION OF YOUR LOW BID
SUBMITTED PURSUANT TO INVITATION FOR BIDS NO. QM/CTM) 36-243-59-601,
ISSUED MARCH 10, 1959, BY THE MILITARY CLOTHING AND TEXTILE SUPPLY
AGENCY FOR 25,669 MEN'S GREEN WOOL JERSEY OVERCOATS.
THE INVITATION PROVIDED AT PAGE 17 OF THE SCHEDULE AS FOLLOWS:
"QUALIFIED MANUFACTURERS LIST:8 THIS IS ISSUED PURSUANT TO THE
QUALIFIED MANUFACTURERS LIST PROGRAM. BIDS WILL BE ACCEPTED ONLY FROM
QUALIFIED FIRMS. A QUALIFIED FIRM IS A FIRM APPEARING ON THE QUALIFIED
MANUFACTURERS LIST FOR THE ITEM BEING PROCURED AND WHICH PROPOSES TO
MANUFACTURE AT THE PLANT/S) WHICH SERVED AS A BASIS FOR ITS
QUALIFICATION OR THE QUALIFICATION OF ANY OTHER FIRM ON THE PERTINENT
LIST. FIRMS ON THE LIST WILL BE PERMITTED TO SUBMIT ADDITIONAL PLANTS
FOR QUALIFICATION, BUT SUCH ADDITIONAL PLANTS WILL NOT BE CONSIDERED FOR
THIS INVITATION FOR BIDS IF NOT QUALIFIED PRIOR TO BID OPENING. FIRMS
NOT ON THE PERTINENT LIST WILL BE PERMITTED TO APPLY FOR
QUALIFICATION AT ANY TIME, BUT THEY WILL NOT BE FURNISHED INVITATION
FOR BIDS UNTIL THEY HAVE QUALIFIED. BIDS RECEIVED FROM FIRMS WHICH HAVE
NOT QUALIFIED PRIOR TO THE OPENING OF THE BIDS WILL NOT BE CONSIDERED.'
YOUR BID WAS REJECTED BECAUSE, ALTHOUGH YOUR FIRM SIDRAN SPORTSWEAR
IS ON THE QUALIFIED MANUFACTURERS LIST FOR THE ITEM UNDER PROCUREMENT,
YOU INDICATED IN YOUR BID AN INTENTION TO USE A PLANT OF THE BENHAM
MANUFACTURING COMPANY WHICH DID NOT SERVE AS A BASIS FOR YOUR
QUALIFICATION OR THE QUALIFICATION OF ANY OTHER FIRM. ACCORDINGLY,
UNDER THE TERMS OF THE QUOTED PROVISION, YOUR BID WAS NOT FOR
CONSIDERATION.
THE INVITATION ALSO PROVIDED AT PAGE 18:
"BIDS OR PROPOSALS UNDER THIS PROCUREMENT ARE SOLICITED FROM SMALL
BUSINESS CONCERNS ONLY AND THIS PROCUREMENT IS TO BE AWARDED ONLY TO ONE
OR MORE SMALL BUSINESS CONCERNS. THIS ACTION IS BASED ON A
DETERMINATION BY THE CONTRACTING OFFICER, ALONE OR IN CONJUNCTION WITH A
REPRESENTATIVE OF THE SMALL BUSINESS ADMINISTRATION, THAT IT IS IN THE
INTEREST OF MAINTAINING OR MOBILIZING THE NATION'S FULL PRODUCTIVE
CAPACITY OR IN THE INTEREST OF WAR OR NATIONAL DEFENSE PROGRAMS.'
SMALL BUSINESS SET-ASIDES OF THIS TYPE ARE AUTHORIZED PURSUANT TO
SECTION 15 OF THE SMALL BUSINESS ACT, 72 STAT. 395.
WE HAVE BEEN ADVISED THAT THE SMALL BUSINESS ADMINISTRATION HAS
DETERMINED THAT SIDRAN SPORTSWEAR, INC., DOES NOT QUALIFY AS A SMALL
BUSINESS CONCERN WITH RESPECT TO THE SUBJECT PROCUREMENT. SUCH A
DETERMINATION BY THE SMALL BUSINESS ADMINISTRATION IS CONCLUSIVE ON THE
PROCUREMENT AGENCIES OF THE GOVERNMENT PURSUANT TO SECTION 8 (B) (6) OF
THE SMALL BUSINESS ACT, 72 STAT. 390. IN VIEW OF THE DETERMINATION BY
THE SMALL BUSINESS ADMINISTRATION, IT IS CLEAR THAT YOUR FIRM IS NOT
ELIGIBLE FOR AWARD UNDER THE INVITATION'S TERMS. THEREFORE, WHETHER THE
BASIS UPON WHICH THE CONTRACTING OFFICER REJECTED YOUR BID WAS PROPER
BECOMES AS ACADEMIC QUESTION AND NEED NOT BE CONSIDERED FURTHER.
B-139516, JUL. 1, 1959
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED JUNE 10, 1959, FROM THE ASSISTANT
SECRETARY OF THE ARMY (LOGISTICS), IN RESPONSE TO OUR REQUEST FOR A
REPORT RELATIVE TO THE PROTEST OF VAUGHN CONSTRUCTION CORPORATION, LONG
ISLAND CITY, NEW YORK, AGAINST THE AWARD OF A CONTRACT TO A HIGHER
BIDDER ON INVITATION NO. ENG-30-347-59-18 FOR CONSTRUCTION WORK AT
ERNEST HARMON AIR FORCE BASE, NEWFOUNDLAND, CANADA.
THE RECORD SHOWS THAT THE UNITED STATES ARMY ENGINEER DISTRICT,
EASTERN OCEAN, UNDER DATE OF FEBRUARY 5, 1959, REQUESTED BIDS--- TO BE
OPENED MARCH 17, 1959 (AS AMENDED/--- FOR THE CONSTRUCTION OF AIRFIELD
WORK, BUILDINGS AND UTILITIES AT ERNEST HARMON AIR FORCE BASE,
NEWFOUNDLAND, CANADA. INSTRUCTIONS TO BIDDERS (STANDARD FORM 22)
ACCOMPANYING THE INVITATION PROVIDED IN PART:
"3. BIDDER'S QUALIFICATIONS. BEFORE A BID IS CONSIDERED FOR AWARD,
THE BIDDER MAY BE REQUESTED BY THE GOVERNMENT TO SUBMIT A STATEMENT OF
FACTS IN DETAIL AS TO HIS PREVIOUS EXPERIENCE IN PERFORMING SIMILAR OR
COMPARABLE WORK, AND OF HIS BUSINESS AND TECHNICAL ORGANIZATION AND
FINANCIAL RESOURCES AND PLANT AVAILABLE AND TO BE USED IN PERFORMING THE
CONTEMPLATED WORK.
"11. AWARD OF CONTRACT. (A) THE CONTRACT WILL BE AWARDED AS SOON AS
PRACTICABLE TO THE LOWEST RESPONSIBLE BIDDER, PRICE AND OTHER FACTORS
CONSIDERED, PROVIDED HIS BID IS REASONABLE AND IT IS TO THE INTEREST OF
THE GOVERNMENT TO ACCEPT IT.
"12. REJECTION OF BIDS. THE GOVERNMENT RESERVES THE RIGHT TO REJECT
ANY AND ALL BIDS WHEN SUCH REJECTION IS IN THE INTEREST OF THE
GOVERNMENT; TO REJECT THE BID OF A BIDDER WHO HAS PREVIOUSLY FAILED TO
PERFORM PROPERLY OR COMPLETE ON TIME CONTRACTS OF A SIMILAR NATURE; AND
TO REJECT THE BID OF A BIDDER WHO IS NOT, IN THE OPINION OF THE
CONTRACTING OFFICER, IN A POSITION TO PERFORM THE CONTRACT.'
IN RESPONSE TO THE INVITATION, FOUR BIDS WERE RECEIVED AS FOLLOWS:
TABLE
VAUGHN CONSTRUCTION CORPORATION $443,777
ARGO CONSTRUCTION LTD. 464,927
J. A. JONES CONSTRUCTION COMPANY 474,960
AYERS-HAGAN-BOOTH 520,296
AFTER HAVING MADE A PREAWARD SURVEY AND AFTER THE MATTER HAD BEEN
CONSIDERED AND REVIEWED AT VARIOUS LEVELS, AWARD WAS MADE ON MAY 5,
1959, TO ARGO CONSTRUCTION LTD., THE SECOND LOW BIDDER, AND NOTICE TO
PROCEED WITH THE WORK WAS ISSUED ON MAY 13, 1959.
IT IS REPORTED THAT VAUGHN CONSTRUCTION CORPORATION WAS UNKNOWN TO
THE CONTRACTING OFFICER AND WAS NOT LISTED IN ANY CONTRACTORS' REGISTER
OR THE DUN AND BRADSTREET REFERENCE IN THE CONTRACTING OFFICE.
INFORMATION OBTAINED FROM MR. JOSEPH HALPERN AND OTHER SOURCES SHOWED
THAT MR. HAPERN WAS SOLE OWNER OF VAUGHN CONSTRUCTION CORPORATION,
JOSEPH HALPERN CONSTRUCTION, INC., AND JAD CONSTRUCTION CORPORATION;
THAT NEITHER VAUGHN CONSTRUCTION CORPORATION NOR JOSEPH HALPERN
CONSTRUCTION COMPANY, INC., HAD PERFORMED CONSTRUCTION; AND THAT JAD
CONSTRUCTION CORPORATION HAD ALL OF THE CONSTRUCTION EQUIPMENT AND HAD
PERFORMED CONSTRUCTION AS A SUBCONTRACTOR TO JOSEPH HALPERN AND OTHER
CONTRACTORS. IT IS REPORTED FURTHER THAT NONE OF THE NAMED CORPORATIONS
HAD PERFORMED CONSTRUCTION WORK OVERSEAS, ALTHOUGH MR. HALPERN WAS A
PRINCIPAL IN WALTERS CONSTRUCTION COMPANY WHEN THAT COMPANY PERFORMED
SOME CONSTRUCTION WORK IN THE VIRGIN ISLANDS OVER 20 YEARS AGO, AT WHICH
TIME HE ADMINISTERED THE CONTRACT FROM THE HOME OFFICE. THE FILE SHOWS
THAT VAUGHN CONSTRUCTION CORPORATION WAS INCORPORATED IN NEW YORK IN
1957 AND HAD BEEN DORMANT FROM ITS INCEPTION.
IN AN ADMINISTRATIVE FINDINGS OF FACT SIGNED BY FOUR REPRESENTATIVES
OF THE GOVERNMENT IT IS STATED:
"7. IT IS APPARENT THAT JOSEPH HALPERN IS THE PARTY IN INTEREST.
THE MAJOR PORTION OF HIS RECENT WORK HAS BEEN PERFORMED IN HIS OWN NAME
UNDER CONTRACTS WITH THE NEW YORK DISTRICT. PERTINENT DETAILS OF FIVE
SUCH CONTRACTS AS FURNISHED BY NEW YORK DISTRICT ARE ATTACHED HERETO,
WHICH INDICATE THAT THIS CONTRACTOR WAS UNABLE TO COMPLETE CONSTRUCTION
ON SCHEDULE. FURTHER, ON TWO OF THESE PROJECTS, FAMILY HOUSING AND NIKE
SITES, PERFORMANCE WAS SUCH AS TO WARRANT AN ,UNSATISFACTORY"
PERFORMANCE RATING. THE NEW YORK DISTRICT HAS STATED ITS INTENT TO RATE
,UNSATISFACTORY" THE FOLLOWING FACTORS ON ENG FORM 2456 FOR THESE TWO
CONTRACTS: SUCCESS IN MEETING SCHEDULED COMPLETION DATES, QUALITY OF
WORK PERFORMED, COOPERATIVE ATTITUDE OF PRINCIPALS AND OTHER PERSONNEL,
AND EFFECTIVENESS OF SUPERVISION. THE "UNSATISFACTORY" RATING HAS BEEN
ORALLY CONCURRED IN PERSONALLY BY COLONEL T. D. RODGERS, NEW YORK
DISTRICT ENGINEER.
"8. ALTHOUGH MR. HALPERN IS THE PARTY IN INTEREST IN THIS BID, HE
DID NOT SUBMIT THE BID IN HIS OWN NAME, NOR DID HE SIGN THE BIDDING
DOCUMENT AS AN OFFICIAL OF THE VAUGHN CONSTRUCTION CORPORATION. HIS SON
SIGNED THE BID, AS VICE PRESIDENT, ALTHOUGH THE DUN AND BRADSTREET
REPORT INDICATES THE SON IS SECRETARY. THEREFORE, WHETHER INTENTIONAL
OR NOT, MR. HALPERN PLACED HIMSELF IN THE POSITION OF BEING ABLE TO
DECIDE, AFTER BID OPENING, WHETHER TO ACCEPT THIS WORK OR NOT, BY BEING
ABLE TO OFFER OR WITHDRAW HIS SUPPORT FROM VAUGHN CONSTRUCTION
CORPORATION. TO PERMIT SUCH A BIDDER TO HAVE A CHOICE, AFTER BID
OPENING, TO QUALIFY OR NOT QUALIFY FOR AN AWARD, AT HIS DISCRETION, IS
UNFAIR TO THE OTHER COMPETING BIDDERS AND DETRIMENTAL TO THE COMPETITIVE
BIDDING SYSTEM.
"9. IT IS EVIDENT THAT THE VAUGHN CONSTRUCTION CORPORATION COULD NOT
PERFORM SATISFACTORILY PER SE, IN VIEW OF LACK OF EXPERIENCE, DORMANT
STATUS SINCE INCEPTION, LOW FINANCIAL POSITION AND EXTREMELY LIMITED
ASSETS. EVEN IF COMPLETELY SUPPORTED BY JOSEPH HALPERN AND HIS
ORGANIZATION AND ASSETS, IT IS CONCLUDED THAT THE COMBINATION WOULD BE
AT BEST MARGINAL FOR OVERSEAS CONSTRUCTION, DUE TO LACK OF EXPERIENCE IN
OVERSEAS WORK AND THE RECENT UNSATISFACTORY PERFORMANCE OF JOSEPH
HALPERN IN RELATIVELY LOCAL STATESIDE WORK FOR THE CORPS OF ENGINEERS.
THE FACT THAT JOSEPH HALPERN ORALLY OFFERED TO ACCEPT THE AWARD
PERSONALLY AND JOINTLY WITH VAUGHN CONSTRUCTION CORPORATION DOES NOT
CHANGE THE ABOVE CONCLUSION.
"10. BASED ON THE ABOVE IT IS CONCLUDED THAT THE VAUGHN CONSTRUCTION
CORPORATION CANNOT BE CONSIDERED A RESPONSIBLE BIDDER WITHIN THE INTENT
OF PARAGRAPH 1-307 OF APP, AND ACCORDINGLY, AWARD TO THIS CONCERN WOULD
NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT. THE VAUGHN CONSTRUCTION
CORPORATION BID SHOULD BE REJECTED AND AWARD MADE TO ARGO CONSTRUCTION
LTD., THE SECOND LOW BIDDER.'
WE HAVE CONSISTENTLY FOLLOWED THE RULE THAT THE MATTER OF A BIDDER'S
QUALIFICATIONS AND RESPONSIBILITY IS SOLELY FOR DETERMINATION BY THE
CONTRACTING AGENCY WITH WHICH THIS OFFICE WILL NOT INTERFERE IN THE
ABSENCE OF A SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS
THEREFOR. 37 COMP. GEN. 430. IN THE INSTANT CASE WE WILL NOT DISTURB
THE AWARD TO ARGO CONSTRUCTION LTD., SINCE WE ARE INFORMALLY ADVISED
THAT THE CONTRACTOR HAS MADE SUBSTANTIAL COMMITMENTS, THE WORK IS NOW
PROCEEDING, AND AN URGENT NEED EXISTS FOR EARLY COMPLETION. WE THINK,
HOWEVER, THAT THERE IS A SERIOUS QUESTION AS TO THE PROPRIETY OF THE
REJECTION OF VAUGHN'S BID.
IN THE FIRST PLACE WE HAVE HELD THAT IN EVALUATING THE EXPERIENCE AND
FINANCIAL RESPONSIBILITY OF A NEWLY FORMED COMPANY THERE MAY BE
CONSIDERED THE EXPERIENCE, RESOURCES, AND RESPONSIBILITY OF THE
PRINCIPAL OFFICERS OF THE COMPANY. 36 COMP. GEN. 673; 38 COMP. GEN.
572. SINCE MR. HALPERN IS THE SOLE OWNER OF VAUGHN, WE THINK THAT HIS
RESOURCES AND EXPERIENCE PROPERLY WERE FOR CONSIDERATION IN DETERMINING
THE RESPONSIBILITY OF VAUGHN. THE RECORD CONTAINS A STATEMENT SHOWING
PERTINENT DETAILS OF FIVE CONTRACTS INDICATING THAT MR. HALPERN WAS
UNABLE TO COMPLETE CONSTRUCTION ON SCHEDULE AND HIS PERFORMANCE RATING
ON TWO OF THE CONTRACTS WAS UNSATISFACTORY. IT IS NOTED THAT THE
CONTRACTS CITED WERE COMPLETED DURING THE YEARS 1954 THROUGH 1958, THE
LATEST ONE BEING CONTRACT ENG-7944, WHICH STARTED ON JULY 30, 1957, AND
WAS COMPLETED ON NOVEMBER 21, 1958, FOURTEEN DAYS LATER THAN THE
REQUIRED COMPLETION DATE, AS AMENDED. WE DO NOT BELIEVE THAT THE NATURE
OF THE PERFORMANCE UNDER THE FOUR PRIOR CONTRACTS CITED WAS FOR
CONSIDERATION IN DETERMINING THE RESPONSIBILITY OF MR. HALPERN SINCE,
NOTWITHSTANDING THE ALLEGED UNSATISFACTORY PERFORMANCE OF THOSE
CONTRACTS, CONTRACT ENG-7944 WAS THEREAFTER AWARDED TO MR. HALPERN. IT
IS ONLY REASONABLE TO ASSUME THAT AT THAT TIME YOUR DEPARTMENT DID NOT
CONSIDER THAT THE ALLEGED POOR PERFORMANCE AND LATE COMPLETION UNDER
THOSE CONTRACTS AFFECTED HIS RESPONSIBILITY TO PERFORM CONTRACT
ENG-7944.
A FURTHER BASIS FOR REJECTING VAUGHN'S BID WAS THAT MR. HALPERN
LACKED EXPERIENCE IN PERFORMING CONTRACTS IN A FOREIGN COUNTRY. APART
FROM THE FACT THAT THE INVITATION DID NOT CONTAIN ANY REQUIREMENT THAT A
BIDDER HAVE PREVIOUS OVERSEAS EXPERIENCE, WE ARE OF THE VIEW THAT IN
CASES WHERE A FINANCIALLY RESPONSIBLE BIDDER HAS HAD ADEQUATE EXPERIENCE
AND BACKGROUND IN THE PERFORMANCE OF CONTRACTS OF SIMILAR MAGNITUDE AND
COMPLEXITIES IN THE UNITED STATES THERE IS NO SUFFICIENT JUSTIFICATION
FOR CONCLUDING THAT HE IS NOT CAPABLE OF PERFORMING SUCH A CONTRACT IN A
FOREIGN COUNTRY.
ANOTHER FACTOR GIVEN FOR REJECTING VAUGHN WAS THAT IT HAD A LOW
FINANCIAL POSITION AND EXTREMELY LIMITED ASSETS. AS PREVIOUSLY STATED,
WE BELIEVE THAT THE FINANCIAL POSITION OF MR. HALPERN, THE SOLE OWNER
OF VAUGHN, PROPERLY WAS FOR CONSIDERATION IN DETERMINING THE FINANCIAL
CAPACITY OF VAUGHN. THERE APPEARS LITTLE DOUBT THAT MR. HALPERN HAS
SUFFICIENT FUNDS TO FINANCE THE CONTRACT WORK. WHAT APPEARS TO BE EVEN
MORE SIGNIFICANT IS THE FACT THAT PARAGRAPH GC-16 OF THE GENERAL
CONDITIONS OF THE SPECIFICATIONS REQUIRED THE SUCCESSFUL CONTRACTOR TO
FURNISH A PERFORMANCE BOND ACCEPTABLE TO THE GOVERNMENT IN THE PENAL SUM
OF 100 PERCENT OF THE CONTRACT PRICE. THIS REQUIREMENT WOULD APPEAR TO
PROTECT THE INTERESTS OF THE GOVERNMENT SO FAR AS THE CONTRACTOR'S
FINANCIAL RESPONSIBILITY IS CONCERNED.
WHILE WE FEEL THAT THE ADMINISTRATIVE ACTION TAKEN IN THIS CASE WAS
BASED ON RATHER TENUOUS EVIDENCE, IN VIEW OF THE REASONS STATED ABOVE WE
WILL NOT REQUIRE ANY FURTHER ACTION IN THE MATTER.
B-139718, JUL. 1, 1959
TO MR. ROGER M. BACON:
REFERENCE IS MADE TO YOUR LETTER DATED MAY 6, 1959, REQUESTING
RECONSIDERATION OF OUR SETTLEMENT OF MAY 1, 1959, WHICH DISALLOWED YOUR
CLAIM FOR REIMBURSEMENT FOR TRAVEL FROM SAN JUAN, PUERTO RICO, TO NEW
YORK, NEW YORK, INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY UNDER ORDERS
DATED NOVEMBER 14, 1958.
IN YOUR LETTER OF NOVEMBER 21, 1958, ADDRESSED TO THE SETTLEMENT
DIVISION, FINANCE CENTER, UNITED STATES ARMY, WHICH WAS FORWARDED TO OUR
OFFICE IN CONNECTION WITH YOUR CLAIM, YOU STATED THAT AT THE TIME OF
YOUR SEPARATION FROM THE ARMY AT FORT BUCHANAN, PUERTO RICO, ON NOVEMBER
14, 1958, YOU WERE PAID FOR TRAVEL FROM NEW YORK, NEW YORK, TO YOUR HOME
OF RECORD (BRECKSVILLE, OHIO). IN SEPTEMBER, 1958, YOU SIGNED A WAIVER
OF GOVERNMENT TRANSPORTATION WHICH ENABLED YOU TO BE SEPARATED IN PUERTO
RICO. PARAGRAPH 9 OF SPECIAL ORDERS, NO. 225, DATED NOVEMBER 14, 1958,
STATES THAT YOU WAIVED GOVERNMENT TRANSPORTATION FROM PUERTO RICO TO THE
CONTINENTAL UNITED STATES FOR THE PURPOSE OF TRAVEL AT YOUR OWN EXPENSE
WITH THE UNDERSTANDING THAT SUCH TRANSPORTATION WOULD NOT BE FURNISHED
AT A LATER DATE. ALTHOUGH AT THAT TIME YOU FULLY REALIZED THAT THE ARMY
WAS NOT THEREAFTER OBLIGATED TO FURNISH YOU WITH TRANSPORTATION FROM
PUERTO RICO TO THE CONTINENTAL UNITED STATES, YOU STATE THAT BEFORE YOUR
SEPARATION YOU NOTICED A MESSAGE FROM THE DEPARTMENT OF THE ARMY WHICH
STATED THAT THE ARMY MUST PROVIDE PERSONNEL WITH TRANSPORTATION TO THE
APPROPRIATE PORT OF EMBARKATION EVEN THOUGH THEY MAY BE SEPARATED
OVERSEAS. YOU FURTHER STATE THAT AFTER SEEING THIS MESSAGE YOU
ATTEMPTED TO GET A MATS FLIGHT TO THE UNITED STATES BUT THAT YOU WERE
REFUSED TRANSPORTATION BECAUSE YOU HAD NOT GIVEN THE TRANSPORTATION
OFFICER 60 DAYS' NOTICE.
IN A LONG LINE OF DECISIONS THIS OFFICE HAS HELD THAT A WAIVER OF
GOVERNMENT TRANSPORTATION BY A MEMBER OF THE ARMED SERVICES WHEN
SUPPORTED BY PROPER CONSIDERATION CONSTITUTES A CONTRACT BETWEEN THE
MEMBER AND THE GOVERNMENT AND IS BINDING UPON THE MEMBER CONCERNED. 3
COMP. GEN. 207; 30 ID. 480; AND 37 ID. 53. THE RECORD CLEARLY SHOWS
THAT THE WAIVER WHICH YOU SIGNED WAS IN CONSIDERATION OF YOUR BEING
ALLOWED TO BE SEPARATED IN PUERTO RICO RATHER THAN RETURNING TO THE
CONTINENTAL UNITED STATES FOR SUCH SEPARATION. THE AGREEMENT BY THE
ARMY WHICH ALLOWED YOU TO BE SEPARATED IN PUERTO RICO WAS A SUFFICIENT
CONSIDERATION TO SUPPORT THE WAIVER OF GOVERNMENT TRANSPORTATION. SEE 3
COMP. GEN. 534. IT MUST BE CONCLUDED, THEREFORE, THAT THE WAIVER
CONSTITUTED A VALID CONTRACT WHICH PRECLUDES ANY RIGHT WHICH YOU MAY
HAVE HAD, PRIOR TO THE WAIVER, OF RECEIVING GOVERNMENT TRANSPORTATION.
WHILE THE DEPARTMENT OF THE ARMY MESSAGE REFERRED TO BY YOU, OF WHICH WE
HAVE NO KNOWLEDGE, MAY HAVE THE EFFECT OF NO LONGER REQUIRING THE
EXECUTION OF WAIVERS FOR MEMBERS OF THE ARMY SEPARATED OVERSEAS, IT DOES
NOT APPEAR THAT SUCH MESSAGE COULD BE HELD TO HAVE INVALIDATED THE
CONTRACT AGREED UPON.
ACCORDINGLY, IT MUST BE CONCLUDED THAT YOU WERE NOT ENTITLED TO
REIMBURSEMENT IN LIEU OF GOVERNMENT TRANSPORTATION FROM PUERTO RICO TO
THE CONTINENTAL UNITED STATES. THE SETTLEMENT OF MAY 1, 1959, WHICH
DISALLOWED YOUR CLAIM, IS SUSTAINED.
B-139768, JUL. 1, 1959
TO MR. ELIAS G. ABRAHAM:
THIS REFERS TO YOUR LETTER OF MAY 11, 1959, REQUESTING REVIEW OF
GENERAL ACCOUNTING OFFICE SETTLEMENT DATED APRIL 6, 1959, WHICH
DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION FOR OVERTIME SERVICES
ALLEGED TO HAVE BEEN RENDERED AND, ALSO, FOR EXCESS DEDUCTIONS
PURPORTEDLY MADE FOR QUARTERS WHILE AN EMPLOYEE OF THE DEPARTMENT OF THE
ARMY ASSIGNED TO DUTY AS A SEAMAN IN THE MARITIME SERVICE DURING THE
PERIOD FROM 1945 TO 1952.
AS YOU WERE PREVIOUSLY INFORMED, YOUR CLAIM (LETTER DATED MARCH 7,
POSTMARKED MARCH 17, 1959) WAS NOT RECEIVED HERE UNTIL MARCH 24, 1959.
IN OUR SETTLEMENT WE MADE SPECIFIC REFERENCE TO THE ACT OF OCTOBER 9,
1940, 54 STAT. 1061, SECTION 1 OF WHICH READS 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.: 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.'
AS A RESULT OF THE ABOVE-QUOTED STATUTORY PROVISION, ACTION ON THAT
PART OF YOUR CLAIM INVOLVING THE PERIOD PRIOR TO MARCH 24, 1949, IS
BARRED AND CANNOT NOW BE CONSIDERED BY OUR OFFICE.
PRIOR TO THE RELEASE OF OUR SETTLEMENT DATED APRIL 6, 1959, WE
RECEIVED AN OFFICIAL ADMINISTRATIVE REPORT DATED FEBRUARY 27, 1959, FROM
HEADQUARTERS, U.S. ARMY, RYUKYU ISLANDS, FORT BUCKNER, APO 331,
PERTAINING TO MARITIME EMPLOYEES WITH THE DEPARTMENT OF THE ARMY,
RYUKYUS COMMAND, WHO WERE FED AND BILLETED ON BOARD U.S. VESSELS. THE
REPORT READS:
"1. THIS OFFICE HAS NOT AND WILL NOT MAKE PAYMENT OF THIS CLAIM.
"2. MR. GLUDO WAS NEVER CHARGED FOR QUARTERS OR SUBSISTENCE. THE
IER'S INCLOSED SHOW NO CHARGES. THE 1955 IER SHOWS A LIKE AMOUNT GIVEN
AND DEDUCTED WHICH IS AN ACCOUNTING PROCEDURE AND DOES NOT AFFECT THE
EMPLOYEE WHO WAS BILLETED AND FED FREE OF CHARGE ABOARD SHIP.
"3. THE CONTRACTS ENCLOSED IN THIS CASE REFLECT THAT THE NUMEROUS
CLAIMS FOR OVERTIME, S AND Q, WAR BONUS, PER DIEM, ETC, ARE NOT
APPLICABLE FOR ANY MARITIME EMPLOYEE. ALL CLAIMS RECEIVED ARE BEING
RETURNED FOR ALL ITEMS AS THESE MARITIME EMPLOYEES HAVE NO CLAIMS. THE
ONLY EMPLOYEES WITH CLAIMS ARE THESE DEPT. OF THE ARMY EMPLOYEES
BILLETED ON THE ARMY BASE AND CHARGED AN EXCESS FOR QUARTERS AFTER 9
NOVEMBER 1952. ANY FUTURE CLAIMS RECEIVED FROM MARITIME EMPLOYEES WILL
BE RETURNED AS DENIED UNDER THE SAME STIPULATIONS AS THE CONTRACTS THEY
SIGNED.'
EVEN THOUGH THE REPORT JUST QUOTED SPECIFICALLY NAMES ONLY ONE
INDIVIDUAL HAVING AN ASSIGNMENT SIMILAR TO THE ONE YOU OCCUPY, IT IS
EVIDENT THEREFROM THAT MARITIME EMPLOYEES OF THE ARMY ASSIGNED TO
HEADQUARTERS, RYUKYUS COMMAND, WHO ARE SUBSISTED AND QUARTERED ON BOARD
GOVERNMENT VESSELS, ARE NOT ENTITLED TO OVERTIME COMPENSATION, OR TO
REFUNDS REPRESENTING EXCESS CHARGES PURPORTEDLY MADE FOR QUARTERS DURING
THE PERIOD FROM MARCH 24, 1949, TO 1952.
FOR THE REASONS HEREINABOVE INDICATED WE FIND NO BASIS FOR THE
PAYMENT OF YOUR CLAIM. CONSEQUENTLY, THE SETTLEMENT OF APRIL 6, 1959,
MUST BE AND IS, SUSTAINED.
B-139807, JUL. 1, 1959
TO ANTHONY A. MANN, CWO, USA, W2152553:
REFERENCE IS MADE TO YOUR LETTER OF MAY 22, 1959, REQUESTING REVIEW
OF OUR SETTLEMENT OF MAY 8, 1959, WHICH DENIED YOUR CLAIM FOR ADDITIONAL
ALLOWANCES FOR TRAVEL AND TRANSPORTATION OF DEPENDENTS IN CONNECTION
WITH TRAVEL PERFORMED BETWEEN EL TIGRE AND CARACUS, VENEZUELA, ON AUGUST
30, 1957, INCIDENT TO A PERMANENT CHANGE OF STATION. YOU ALSO REQUEST
THAT YOUR CLAIM BE REFERRED TO THE CHIEF OF FINANCE, DEPARTMENT OF THE
ARMY, FOR RECONSIDERATION OF THE OFFICIAL LAND MILEAGE DISTANCE FROM EL
TIGRE TO CARACAS, PREVIOUSLY FIXED BY THAT AUTHORITY AT 226 MILES.
IT APPEARS THAT YOU WERE ASSIGNED ON PERMANENT CHANGE OF STATION TO
QUITO, ECUADOR, BY LETTER ORDER NO. 2727, DATED AUGUST 15, 1957,
HEADQUARTERS U.S. ARMY CARIBBEAN. PARAGRAPH TWO OF THOSE ORDERS
AUTHORIZED/YOU TO PROCEED FROM EL TIGRE TO CARACAS VIA PRIVATELY OWNED
CONVEYANCE AND PARAGRAPH THREE AUTHORIZED CONCURRENT TRAVEL OF YOUR TWO
DEPENDENTS. THE RECORD INDICATES THAT YOU TRAVELED BY PRIVATELY OWNED
AUTOMOBILE FROM EL TIGRE TO CARACAS, AN ACTUAL HIGHWAY DISTANCE OF 373
MILES. PAYMENT WAS MADE TO YOU FOR YOUR TRAVEL AND TRANSPORTATION OF
YOUR DEPENDENTS AT THE RATE OF $0.12 PER MILE FOR TWO ADULT DEPENDENTS
AND $0.06 PER MILE FOR YOURSELF, ON THE BASIS OF A DISTANCE OF 226 MILES
ESTABLISHED BY THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, IN DD FORM
NO. 753, DATED OCTOBER 25, 1957. YOUR CLAIM IS FOR ADDITIONAL MILEAGE
ON THE BASIS OF THE DISTANCE ACTUALLY TRAVELED (373 MILES) AT THE RATES
PREVIOUSLY PAID.
YOUR CLAIM WAS SUBMITTED ORIGINALLY BY LETTER OF NOVEMBER 19, 1957,
TO THE INSTALLATION FINANCE AND ACCOUNTING OFFICER, FORT CLAYTON, CANAL
ZONE, SETTING FORTH THE ESSENTIAL FACTS AND A SCHEDULE OF THE DISTANCE
TRAVELED. THIS LETTER WAS FORWARDED TO THE DEPARTMENT OF THE ARMY,
CHIEF OF FINANCE, FOR REDETERMINATION OF THE OFFICIAL DISTANCE BETWEEN
EL TIGRE AND CARACAS, IN VIEW OF THE INFORMATION FURNISHED BY YOU. THE
CHIEF OF FINANCE REPLIED THAT THE DISTANCE WAS FIXED ON THE BASIS OF AIR
DISTANCE SINCE AIR TRANSPORTATION APPEARED TO BE THE ONLY COMMERCIAL
TRANSPORTATION AVAILABLE. BY THIRD INDORSEMENT THE INSTALLATION FINANCE
AND ACCOUNTING OFFICER RESUBMITTED YOUR CLAIM AND REFERRED TO THE ROAD
USED BY YOU, STATING THAT HE FELT THAT THE DISTANCE OF 226 MILES WAS NOT
EQUITABLE IN VIEW OF THE FACTS PRESENTED. IN FOURTH INDORSEMENT THE
CHIEF OF FINANCE STATED THAT THE DISTANCE OF 373 MILES WAS PREVIOUSLY
CONSIDERED EXCESSIVE AND THAT THE DISTANCE OF 226 MILES WAS THEREFOR
ESTABLISHED. IT WAS ALSO POINTED OUT THAT OFFICIAL DISTANCES ARE
ORDINARILY DETERMINED VIA ROUTES USED BY COMMERCIAL TRANSPORTATION
RATHER THAN PERSONAL MEANS AS SET FORTH IN PARAGRAPH 5 OF THE OFFICIAL
TABLE OF DISTANCES.
THE AUTHORITY OF THE CHIEF OF FINANCE TO DETERMINE OFFICIAL DISTANCES
IS PROVIDED IN SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949,
37 U.S.C. 253, AS FOLLOWS:
"* * * THE TRAVEL AND TRANSPORTATION ALLOWANCES WHICH SHALL BE
AUTHORIZED FOR EACH TYPE OF TRAVEL SHALL BE LIMITED TO ONE OF THE
FOLLOWING: (1) TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR, OR A
MONETARY ALLOWANCE IN LIEU OF COST OF TRANSPORTATION AT A RATE NOT IN
EXCESS OF 7 CENTS PER MILE BASED ON DISTANCES ESTABLISHED OR TO BE
ESTABLISHED OVER THE SHORTEST USUALLY TRAVELED ROUTES, IN ACCORDANCE
WITH MILEAGE TABLES PREPARED BY THE CHIEF OF FINANCE OF THE DEPARTMENT
OF THE ARMY UNDER THE DIRECTION OF THE SECRETARY OF THE ARMY * * *.'
UNDER SUCH STATUTORY PROVISIONS, THE AUTHORITY OF THE CHIEF OF
FINANCE TO DETERMINE OFFICIAL DISTANCES IS CLEAR AND WE MAY NOT QUESTION
DETERMINATIONS SO MADE. THE DISTANCE BETWEEN EL TIGRE AND CARACAS WAS
CONSIDERED ON THREE SEPARATE OCCASIONS BY THE CHIEF OF FINANCE WITH THE
RESULTING DETERMINATION THAT THE OFFICIAL DISTANCE WAS 226 MILES.
INASMUCH AS THAT DETERMINATION WAS MADE WITH FULL KNOWLEDGE OF THE FACTS
PRESENTED BY YOU, THE MATTER WILL NOT BE RESUBMITTED TO THAT OFFICIAL
FOR FURTHER CONSIDERATION.
YOU EXPRESS THE BELIEF THAT LETTER ORDER NO. 2727 AUTHORIZED
COMMERCIAL TRANSPORTATION OF YOUR AUTOMOBILE FROM EL TIGRE TO CARACAS
AND THAT DRIVING THAT AUTOMOBILE FROM EL TIGRE TO CARACAS RESULTED IN A
SAVING TO THE UNITED STATES AND THE GOVERNMENT OF ECUADOR. THIS
CONTENTION APPEARS TO BE BASED UPON A MISUNDERSTANDING OF THE CITED
ORDERS. PARAGRAPH FIVE STATES, IN PERTINENT T,"SHPMT OF ONE (1) POV BY
GOVT AND/OR COML VES AUTH FR CARACAS, VENEZUELA TO QUITO, EQUADOR (AR
55-76).' PARAGRAPH SIX STATES (IN PERTINENT PART): "THE GOVT OF ECUADOR
WILL REIMBURSE THE US GOVT FOR COST INCURRED IN THE MOV OF OFF, DEPN,
TRANS BY AND SHPMT OF POV AND SHPMT OF HHG FR PRESENT STA TO ECUADOR.'
IT IS CLEAR THAT PARAGRAPH FIVE AUTHORIZES SHIPMENT OF YOUR AUTOMOBILE
ONLY FROM CARACAS TO QUITO. PARAGRAPH SIX DID NOT CONFER ADDITIONAL
RIGHTS UPON YOU. IT MERELY INDICATED THE MEASURE OF REIMBURSEMENT WHICH
WOULD BE MADE TO THE UNITED STATES BY THE GOVERNMENT OF ECUADOR.
PARAGRAPH 9, ARMY REGULATIONS 55-76, SEPTEMBER 26, 1955, EXPRESSLY
PROVIDED THAT COMMERCIAL LAND SHIPMENT OF PRIVATELY OWNED VEHICLES WAS
NOT AUTHORIZED AT GOVERNMENT EXPENSE. THE UNDERSCORED PORTIONS OF
PARAGRAPH SIX OF YOUR ORDERS DO NOT INDICATE THAT PAYMENT WAS TO BE MADE
FOR COMMERCIAL SHIPMENT OF YOUR AUTOMOBILE FROM EL TIGRE, BUT RATHER
THAT REIMBURSEMENT WAS TO BE MADE FOR THE COST OF TRAVEL BY PRIVATELY
OWNED VEHICLE (EL TIGRE TO CARACAS) AND SHIPMENT OF THAT VEHICLE FROM
CARACAS TO QUITO, AS WELL AS REIMBURSEMENT FOR THE SHIPMENT OF HOUSEHOLD
GOODS FROM YOUR OLD STATION (EL TIGRE) TO QUITO.
IT THEREFORE APPEARS THAT THERE IS NO BASIS FOR THE PAYMENT OF
ADDITIONAL ALLOWANCES FOR TRAVEL AND TRANSPORTATION OF DEPENDENTS OR
REIMBURSEMENT FOR THE TRANSPORTATION OF YOUR AUTOMOBILE. ACCORDINGLY,
THE SETTLEMENT OF MAY 22, 1959, IS SUSTAINED.
B-139812, JUL. 1, 1959
TO MR. RAMON C. JOSEF:
ON MAY 20, 1959, YOU REQUESTED RECONSIDERATION OF OUR CLAIMS DIVISION
SETTLEMENT DATED APRIL 6, 1959, WHICH DISALLOWED YOUR CLAIM FOR A
RETROACTIVE ADJUSTMENT IN SALARY BASED ON CERTAIN PERSONNEL ACTIONS AS
DESCRIBED BELOW.
THE RECORD SHOWS THAT YOU WERE GIVEN A TEMPORARY APPOINTMENT ON
DECEMBER 6, 1950, AS PROPERTY AND SUPPLY CLERK, S-7, STEP 5 (EQUIVALENT
TO LGS-3, STEP 5) WITH HEADQUARTERS, 13TH AIR FORCE. SALARY ADJUSTMENT
TO STEP 5 WAS BASED ON YOUR PREVIOUS SEPARATION BY REDUCTION IN FORCE
FROM THE MANILA ENGINEER DISTRICT ON NOVEMBER 30, 1950, AS S-9, STEP 4
(EQUIVALENT TO LGS-4, STEP 4). YOUR TEMPORARY APPOINTMENT WAS
TERMINATED ON FEBRUARY 24, 1951, TO ENABLE YOU TO ACCEPT AN EXCEPTED
APPOINTMENT EFFECTIVE FEBRUARY 25, 1951, AS PROPERTY AND SUPPLY CLERK
LGS-2, STEP 5, ?505 PER HOUR, THE SALARY ADJUSTMENT TO STEP 5 AGAIN
BEING BASED ON YOUR EARLIER SEPARATION BY REDUCTION IN FORCE FROM THE
MANILA ENGINEER DISTRICT BECAUSE YOU WERE REEMPLOYED WITHIN ONE YEAR.
ON OCTOBER 5, 1952, YOU WERE PROMOTED TO LGS-3, STEP 1, ?525 PER HOUR.
YOUR CLAIM IS BASED ON THE BELIEF THAT, WHEN YOU WERE PROMOTED ON
OCTOBER 5, 1952, TO LGS-3, STEP 1, YOUR SALARY SHOULD HAVE BEEN ADJUSTED
TO STEP 5 IN THAT GRADE BECAUSE YOU PREVIOUSLY HAD HELD A POSITION AT
THAT LEVEL. OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM POINTED OUT
THAT THE AIR FORCE REGULATIONS IN EFFECT ON OCTOBER 5, 1952, PROVIDED
FOR RESTORATION OF THE PREVIOUS STEP RATE ONLY IF THE EARLIER CHANGE TO
LOWER GRADE HAD BEEN IN LIEU OF SEPARATION BY REDUCTION IN
FORCE. IT WAS POINTED OUT, ALSO, THAT THE FEDERAL PERSONNEL MANUAL,
PART 25, Z-1-319, SECTION 25-103 (B) (1), AND PUBLIC LAW 594, APPROVED
JUNE 18, 1956, WHICH, YOU CITED IN SUPPORT OF YOUR CLAIM, BOTH APPLY
ONLY TO POSITIONS UNDER THE CLASSIFICATION ACT OF 1949, AS AMENDED AND,
THAT FOR PAY ADJUSTMENT PURPOSES, POSITIONS SUCH AS YOURS OCCUPIED BY
NON-CITIZENS ARE CONSIDERED WAGE BOARD POSITIONS NOT UNDER THE
CLASSIFICATION ACT.
IN YOUR REQUEST FOR RECONSIDERATION, YOU CONTEND THAT PARAGRAPHS 11B
AND 12B, SECTION 7, AF P9.7, AFM 40-1 DATED JULY 18, 1951, SHOULD GOVERN
YOUR SALARY ADJUSTMENT UPON PROMOTION IN 1952. YOU POINT OUT THAT THOSE
PARAGRAPHS DO NOT MAKE ENTITLEMENT TO THE HIGHER RATE CONTINGENT UPON
THE PREVIOUS CHANGE IN A LOWER GRADE HAVING BEEN IN LIEU OF SEPARATION
BY REDUCTION IN FORCE AS WAS INDICATED IN OUR SETTLEMENT. HOWEVER,
THOSE PARAGRAPHS HAVE NO APPLICATION TO YOUR CASE BECAUSE THEY RELATE
ONLY TO REASSIGNMENTS--- PARAGRAPH 11 TO REASSIGNMENT IN THE SAME WAGE
AREA AND PARAGRAPH 12 TO REASSIGNMENT IN A DIFFERENT WAGE AREA.
PARAGRAPH 13 GOVERNS IN YOUR CASE AND IT REQUIRES GENERALLY THE RATE OF
PAY OF AN EMPLOYEE WHO IS PROMOTED TO BE SET AT THE LOWEST STEP RATE OF
THE NEW GRADE WHICH EXCEEDS THE CURRENT RATE. SUBPARAGRAPH 13C PERMITS
ADJUSTMENT TO A HIGHER STEP RATE ONLY IF THE PREVIOUS CHANGE TO A LOWER
GRADE WAS ACCEPTED BY THE EMPLOYEE IN LIEU
OF SEPARATION FOR REDUCTION IN FORCE OR OF SEPARATION BY
DISPLACEMENT, NEITHER OF WHICH IS INVOLVED IN YOUR CASE. THE RECORD
SHOWS THAT YOUR CHANGE TO THE LOWER GRADE IN FEBRUARY 1951 WAS TO PERMIT
YOU TO ACCEPT APPOINTMENT TO A REGULAR EXCEPTED POSITION IN LIEU OF THE
IMMEDIATELY PROSPECTIVE SEPARATION BY TERMINATION BY YOUR TEMPORARY
APPOINTMENT. THEREFORE, YOU WERE NOT ENTITLED TO THE BENEFITS OF
SUBPARAGRAPH 13C. YOUR STATEMENT THAT YOU WERE TOLD AT THE TIME THAT IF
YOU DID NOT ACCEPT THE LOWER POSITION YOU WOULD BE SEPARATED BY
REDUCTION IN FORCE IS NOT IN CONFORMITY WITH THE OFFICIAL RECORD WHICH
MUST BE ACCORDED THE GREATER WEIGHT IN THE ABSENCE OF PROOF SHOWING THE
RECORD TO BE IN ERROR.
WE MUST APPLY THE SAME REASONING TO YOUR OTHER CONTENTIONS WHICH WE
HAVE CAREFULLY CONSIDERED BUT FOUND TO BE WITHOUT MERIT. THEREFORE, THE
SETTLEMENT DISALLOWING YOUR CLAIM MUST BE AND IS HEREBY SUSTAINED.
B-139850, JUL. 1, 1959
TO BARNEY S. BOGAN, JR. CAPT., JAGC, USAR:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 8, 1959, REQUESTING REVIEW
OF OUR SETTLEMENT OF JUNE 4, 1959, WHICH DISALLOWED YOUR CLAIM FOR
REFUND OF CHECKAGE IN THE AMOUNT OF $10.45 REPRESENTING ACTIVE DUTY PAY
AND ALLOWANCES FOR ONE DAY, JANUARY 10, 1955, INCIDENT TO YOUR BEING
ORDERED TO ACTIVE DUTY AS A COMMISSIONED OFFICER OF THE UNITED STATES
ARMY RESERVE.
THE RECORDS SHOW THAT BY SPECIAL ORDERS NO. 246, DATED DECEMBER 15,
1054, YOU WERE ORDERED TO ACTIVE DUTY AND DIRECTED TO PROCEED ON JANUARY
10, 1955, FROM YOUR HOME, SHREVEPORT, LOUISIANA, TO FORT BENNING,
GEORGIA, WHERE YOU WERE TO REPORT NOT LATER THAN JANUARY 12, 1955, FOR
TEMPORARY DUTY TO ATTEND A COURSE OF INSTRUCTION. YOU WERE AUTHORIZED
TO TRAVEL BY PRIVATELY OWNED CONVEYANCE. IN YOUR LETTER OF JULY 25,
1957, TO THE FINANCE OFFICER, SOUTHERN AREA COMMAND, USAG SAG, A COPY OF
WHICH WAS FORWARDED TO THIS OFFICE IN CONNECTION WITH YOUR CLAIM, YOU
STATED THAT YOU TRAVELED BY PRIVATELY OWNED VEHICLE AND SPEND THE NIGHT
OF JANUARY 10 IN MERIDIAN, ISSISSIPPI; THAT ON THE MORNING OF JANUARY
11 YOU DEPARTED MERIDIAN AND ARRIVED IN COLUMBUS, GEORGIA THAT
AFTERNOON; THAT PRIOR TO 1700 HOURS ON JANUARY 11 YOUR REPORTED TO FORT
BENNING IN ORDER TO LEARN WHERE YOU SHOULD REPORT THE NEXT MORNING; AND
THAT ON JANUARY 12 YOU REPORTED TO YOUR STUDENT COMPANY AT APPROXIMATELY
0800 HOURS.
IN OUR SETTLEMENT OF JUNE 4, 1959, IT WAS POINTED OUT THAT THE
OFFICIAL MILEAGE FROM SHREVEPORT, LOUISIANA, TO FORT BENNING, GEORGIA,
IS SHOWN AS 627 MILES AND THAT UNDER EXECUTIVE ORDER 10153 YOU WERE
ENTITLED TO COUNT ONLY TWO DAYS OF TRAVEL TIME AS ACTIVE DUTY. IT WAS
ALSO STATED THAT THERE APPEARED TO HAVE BEEN NO REQUIREMENT THAT YOU
PERFORM ANY DUTY ON JANUARY 12, 1955, OTHER THAN THAT OF REPORTING IN AT
FORT BENNING, WHICH APPARENTLY COULD HAVE BEEN DONE AT ANY HOUR OF THAT
DAY AND, THEREFORE, THERE WAS NO REASON WHY TRAVEL COULD NOT HAVE BEEN
PERFORMED ON JANUARY 12. HENCE, THE DATE THAT YOU WERE REQUIRED TO
"BEGIN TO COMPLY WITH YOUR ORDERS," ALLOWING TWO DAYS TRAVEL TIME, WAS
JANUARY 11, 1955. IN YOUR LETTER OF JUNE 8, 1959, YOU CONTEND THAT IN
DEPARTING ON JANUARY 10, 1955, YOUR WERE MERELY COMPLYING WITH YOUR
ORDERS AND THAT IF YOU SHOULD HAVE DEPARTED ON JANUARY 11, 1955, THEN
THE ORDERS BRANCH OF THE DEPARTMENT OF DEFENSE MADE AN ERROR AND YOU
SHOULD NOT BE PENALIZED.
SECTION 201 (E) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807
PROVIDES AS FOLLOWS:
"* * * THAT IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE
PRESIDENT, IN THE CASE OF MEMBERS OF THE UNIFORMED SERVICES CALLED OR
ORDERED TO EXTENDED ACTIVE DUTY IN EXCESS OF 30 DAYS, ACTIVE DUTY SHALL
INCLUDE THE TIME REQUIRED TO PERFORM TRAVEL FROM HOME TO FIRST DUTY
STATION AND FROM LAST DUTY STATION TO HOME BY THE MODE OF TRANSPORTATION
AUTHORIZED IN ORDERS FOR SUCH MEMBERS. * * *"
EXECUTIVE ORDER NO. 10153, AUGUST 17, 1950, PRESCRIBING REGULATIONS
PURSUANT TO THAT SECTION PROVIDES THAT:
"SEC. 2. IN CASE TRAVEL BY PRIVATE CONVEYANCE IS SPECIFICALLY
AUTHORIZED AND THE TRAVEL IS SO PERFORMED, THE TRAVEL TIME INCLUDED AS
ACTIVE DUTY SHALL BE COMPUTED ON THE BASIS OF ONE DAY FOR EACH THREE
HUNDRED MILES TRAVELLED, AND ONE DAY OF TRAVEL TIME SHALL ALSO BE
ALLOWED FOR EACH FRACTION OF THREE HUNDRED MILES IN EXCESS OF ONE
HUNDRED AND FIFTY MILES. * * *"
THE EXECUTIVE ORDER FURTHER PROVIDES THAT THE SECRETARIES CONCERNED
MAY PRESCRIBE, WITH RESPECT TO PERSONNEL WITHIN THEIR RESPECTIVE
DEPARTMENTS, SUCH SUPPLEMENTARY REGULATIONS AS THEY MAY DEEM NECESSARY
OR DESIRABLE FOR CARRYING OUT SUCH REGULATIONS. PARAGRAPH 9B (1),
CHANGE NO. 2, ARMY REGULATIONS 35-1320, DATED FEBRUARY 25, 1954,
PROVIDES THAT THE PAY AND ALLOWANCES OF COMMISSIONED OFFICERS OF THE
ARMY RESERVE "COMMENCE ON THE DAY THEY OFFICIALLY AND NECESSARILY BEGIN
TO COMPLY WITH THE ORDERS CALLING THEM TO ACTIVE DUTY.' PARAGRAPH 9G OF
THESE REGULATIONS PROVIDES THAT THE "TERM "NECESSARILY COMPLYING WITH
ORDERS" MEANS THAT FOR PAY PURPOSES, COMPLIANCE MAY NOT BEGIN EARLIER
THAN THE TIME NECESSARY FOR TRAVEL BY NORMAL SURFACE CARRIER IN ORDER TO
REACH THE STATION ON THE DAY HE IS TO REPORT, UNLESS TRAVEL BY PRIVATELY
OWNED CONVEYANCE IS SPECIFICALLY AUTHORIZED IN THE ORDERS.'
THUS, WHERE TRAVEL IS PERFORMED BY COMMON CARRIER THE DAY OF
REPORTING, WHICH CLEARLY MAY BE AT ANY TIME DURING THE DAY SPECIFIED, IS
A TRAVEL DAY. TRAVEL BY PRIVATELY OWNED AUTOMOBILE, WHICH IS AUTHORIZED
FOR THE CONVENIENCE OF THE MEMBER CONCERNED WHEN THE ORDERED ACTIVE DUTY
IS DEEMED TO BE OF SUCH DURATION AS TO WARRANT THE AUTHORIZATION OF THE
ADDITIONAL TRAVEL TIME USUALLY RESULTING, IS IN LIEU OF TRAVEL BY COMMON
CARRIER. IT FOLLOWS THAT IN SUCH CASE THE DAY OF REPORTING LIKEWISE IS
TO BE TREATED AS A TRAVEL DAY. HENCE, WHERE IT IS FOUND THAT, ON THE
BASIS OF REQUIRED TRAVEL TIME BY THE MODE OF TRANSPORTATION AUTHORIZED,
COMPUTED IN ACCORDANCE WITH THE APPLICABLE STATUTE AND REGULATIONS, THE
EFFECTIVE DATE STATED IN ORDERS TO ACTIVE DUTY IS INCORRECT, SUCH DATE
IS WITHOUT EFFECT FOR PAY PURPOSES. THEREFORE, SINCE YOUR REPORTING
DATE WAS JANUARY 12 AND SINCE YOU WERE ENTITLED TO COUNT ONLY TWO DAYS
TRAVEL TIME AS ACTIVE DUTY UNDER EXECUTIVE ORDER 10153 WHICH TRAVEL
COULD HAVE BEEN ACCOMPLISHED ON JANUARY 11 AND 12, 1955, THERE IS NO
AUTHORITY FOR REFUND OF THE AMOUNT CHECKED AS PAY AND ALLOWANCES FOR
JANUARY 10, 1955. ACCORDINGLY, THE SETTLEMENT OF JUNE 4, 1959, IS
CORRECT AND IS SUSTAINED.
B-139879, JUL. 1, 1959
TO MR. ELIOT GERBER:
ON MAY 26, 1959, YOU REQUESTED REVIEW OF OUR SETTLEMENT OF MAY 21,
1959, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION FOR A COURSE WHICH
YOU SAY YOU TAUGHT IN MILITARY LAW TO SENIOR ROTC STUDENTS AT THE
UNIVERSITY OF MICHIGAN IN 1957. YOUR CLAIM WAS TRANSMITTED HERE
PURSUANT TO 4 CFR 31.4 WHICH PROVIDES THAT CLAIMS WHICH CANNOT BE
DISPOSED OF ADMINISTRATIVELY WILL BE TRANSMITTED TO THE CLAIMS DIVISION
OF THE GENERAL ACCOUNTING OFFICE BY THE ADMINISTRATIVE OFFICE.
THE RECORD FAILS TO SHOW THAT YOU WERE CALLED TO ACTIVE DUTY FOR THE
PURPOSE OF TEACHING THE COURSE IN QUESTION OR THAT YOU WERE OTHERWISE
EMPLOYED OR AWARDED A CONTRACT TO TEACH SUCH COURSE.
4 CFR 31.7 PROVIDES THAT CLAIMS ARE SETTLED ON THE BASIS OF THE FACTS
AS ESTABLISHED BY THE GOVERNMENT AGENCY CONCERNED AND BY EVIDENCE
SUBMITTED BY THE CLAIMANT; THAT SETTLEMENTS ARE FOUNDED ON A
DETERMINATION OF THE LEGAL LIABILITY OF THE UNITED STATES UNDER THE
FACTUAL SITUATION INVOLVED AS ESTABLISHED BY THE WRITTEN RECORD; AND
THAT THE BURDEN IS ON CLAIMANTS TO ESTABLISH THE LIABILITY OF THE UNITED
STATES, AND THE CLAIMANTS' RIGHT TO PAYMENT. IN CASES INVOLVING
DISPUTED QUESTIONS OF FACT BETWEEN A CLAIMANT AND THE ADMINISTRATIVE
OFFICERS OF THE GOVERNMENT, THE UNBROKEN RULE OF THE ACCOUNTING OFFICERS
OF THE GOVERNMENT IS TO ACCEPT THE STATEMENT OF FACTS FURNISHED BY THE
ADMINISTRATIVE OFFICERS.
FURTHERMORE, IT IS "THE UNDOUBTED RIGHT AND DUTY" OF THE ACCOUNTING
OFFICERS OF THE GOVERNMENT TO REJECT ANY CLAIM IN WHOLE OR IN PART "AS
THEIR JUDGMENT DICTATES" TO WHICH THEY BELIEVE THERE MAY BE SUBSTANTIAL
DEFENSES IN LAW, OR AS TO THE VALIDITY OF WHICH THEY ARE IN DOUBT
(LONGWILL V. UNITED STATES, 17 C.CLS. 288, 291), LEAVING THE CLAIMANTS
TO PROSECUTE THEIR CLAIMS IN A COURT OF LAW.
ACCORDINGLY, ON THE PRESENT RECORD WE ARE REQUIRED TO SUSTAIN THE
SETTLEMENT OF MAY 21, 1959.
B-59971, JUL. 1, 1959
TO MRS. NERVIE DAVIS:
REFERENCE IS MADE TO LETTERS DATED MAY 19 AND JUNE 24, 1959, WRITTEN
ON BEHALF BY MR. J. HARRISON WESTOVER, ATTORNEY AT LAW, FURTHER
CONCERNING THE BALANCE OF THE ARREARS OF PAY DUE IN THE CASE OF YOUR
LATE SON, THOMAS E. DAVIS, AS OF FEBRUARY 1, 1945, THE DATE OF RECEIPT
OF EVIDENCE OF HIS DEATH WHILE SERVING IN THE ARMED FORCES OF THE UNITED
STATES.
IN THE LETTER OF MAY 19, 1959, MR. WESTOVER SAYS THAT IN PENNSYLVANIA
A PERSON IS PRESUMED TO BE DEAD IF HE IS ABSENT FROM HIS DOMICILE FOR
SEVEN YEARS AND IS UNHEARD OF DURING THAT PERIOD. HE ALSO SAYS THAT THE
ORPHANS' COURT OF CAMBRIA COUNTY, PENNSYLVANIA, DECREED THE LEGAL
PRESUMPTION OF THE DEATH OF CYRUS GORDON DAVIS, THE FATHER OF YOUR LATE
SON, AND THAT ON THE BASIS OF SUCH DECREE YOU WERE APPOINTED
ADMINISTRATRIX OF THE ESTATE OF CYRUS GORDON DAVIS. THERE WAS ENCLOSED
WITH THE LETTER OF MAY 19, 1959, A CERTIFICATE OF THE SAME DATE BY THE
REGISTER OF THE PROBATE OF WILLS AND GRANTING OF LETTERS OF
ADMINISTRATION OF CAMBRIA COUNTY, PENNSYLVANIA, CERTIFYING THAT YOU WERE
APPOINTED SUCH ADMINISTRATRIX ON THAT DATE. REQUEST IS MADE THAT THE
BALANCE DUE BE PAID TO YOU AS ADMINISTRATRIX OF THE ESTATE OF CYRUS
GORDON DAVIS.
AS WE HAVE EXPLAINED TO YOU PREVIOUSLY, THE SETTLEMENT OF ACCOUNTS OF
DECEASED MEMBERS OF THE ARMED FORCES WHO DIED PRIOR TO JANUARY 1, 1956,
WAS GOVERNED BY THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30. THAT ACT
PROVIDED THAT IN THE ABSENCE OF A CLAIM FROM A DULY APPOINTED LEGAL
REPRESENTATIVE OF THE ESTATE OF THE DECEASED MEMBER AND WHERE SUCH
MEMBER WAS NOT SURVIVED BY A WIDOW OR CHILD, THE AMOUNT DUE NIGHT BE
ALLOWED "TO THE FATHER AND MOTHER IN EQUAL PARTS; FOURTH, IF EITHER THE
FATHER OR MOTHER BE DEAD, THEN TO THE ONE SURVIVING; FIFTH, IF THERE BE
NO WIDOW, WIDOWER, CHILD, FATHER, OR MOTHER AT THE DATE OF SETTLEMENT,
THEN TO THE BROTHERS AND SISTERS AND CHILDREN OF DECEASED BROTHERS AND
SISTERS, PER STIRPES.' IT WILL BE NOTED THAT PAYMENT WAS AUTHORIZED
UNDER THE STATUTE, IN THE DESIGNATED ORDER OF PRECEDENCE, TO THE HEIR OR
HEIRS SURVIVING AT THE DATE OF OUR SETTLEMENT. NO PROVISION WAS MADE
FOR PAYMENT TO THE LEGAL REPRESENTATIVE OF THE ESTATE OF A DECEASED
HEIR. WHILE THE FOREGOING PROVISIONS OF THE 1946 ACT HAVE NOW BEEN
SUPERSEDED BY SIMILAR PROVISIONS CONTAINED IN SECTION 29 OF PUBLIC LAW
85-861, APPROVED SEPTEMBER 2, 1958, 72 STAT. 1563, NO CHANGE WAS MADE IN
THE ORDER OF PRECEDENCE IN SETTLING SUCH ACCOUNTS. HENCE, YOUR
APPOINTMENT AS ADMINISTRATRIX OF THE ESTATE OF THE FATHER OF THE
DECEASED SOLDIER CONSTITUTES NO LEGAL BASIS TO ALLOW YOU THE BALANCE DUE
IN THAT CAPACITY.
WHILE MR. WESTOVER STATES THAT THE ORPHANS' COURT OF CAMBRIA COUNTY,
PENNSYLVANIA, DECREED THE LEGAL PRESUMPTION OF THE DEATH OF CYRUS GORDON
DAVIS BECAUSE HE HAS BEEN ABSENT FROM HIS DOMICILE AND UNHEARD OF FOR
MORE THAN SEVEN YEARS, SUCH DECREE DOES NOT APPEAR TO CONSTITUTE A
JUDICIAL DETERMINATION THAT THE FATHER IS IN FACT DEAD AND, THEREFORE,
AFFORDS NO BASIS TO ALLOW YOU THE BALANCE DUE AS THE SOLE SURVIVING
PARENT.
IN OUR DECISION OF JANUARY 28, 1959, B-59971, WE EXPLAINED TO YOU
THAT, IN VIEW OF THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT.
1061, BARRING CLAIMS THAT ARE NOT RECEIVED HERE WITHIN 10 YEARS AFTER
THE DATE THE CLAIM FIRST ACCRUED, A CLAIM BY A LEGAL REPRESENTATIVE OF
THE ESTATE OF YOUR LATE SON COULD NOW RECEIVE FAVORABLE CONSIDERATION
ONLY IF SUCH A CLAIM IS ACCOMPANIED BY A DETERMINATION BY THE PROBATE
COURT THAT YOU WOULD BE ENTITLED, PERSONALLY, TO RECEIVE THE FULL AMOUNT
DUE.
FOR THE FOREGOING REASONS, THERE IS NO BASIS ON THE PRESENT RECORD TO
ALLOW YOU THE BALANCE DUE.
HOWEVER, IN VIEW OF STATEMENTS IN YOUR PREVIOUS COMMUNICATIONS TO US
TO THE EFFECT THAT YOUR HUSBAND, AFTER HE LEFT HOME, WAS A PATIENT IN
HOSPITALS OF THE VETERANS ADMINISTRATION AT ASPINWALL, PENNSYLVANIA, AND
DAYTON, OHIO, WE ARE ENDEAVORING TO ASCERTAIN FROM THAT ADMINISTRATION
WHETHER ITS RECORDS SHOW YOUR HUSBAND IS LIVING OR DEAD. SHOULD IT BE
ESTABLISHED THAT HE IS NO LONGER ALIVE, APPROPRIATE ACTION WILL BE TAKEN
TO ALLOW YOU THE AMOUNT DUE YOUR SON'S ESTATE.
B-63549, B-129993, JUL. 1, 1959
TO MR. FRANZ O. WILLENBUCHER:
REFERENCE IS MADE TO YOUR LETTERS OF MAY 20 AND MAY 21, 1959,
RESPECTIVELY, ON BEHALF OF COMMANDER ALBERT G. BARRY, JR., AND REAR
ADMIRAL JOHN D. SMALL, REQUESTING RECONSIDERATION OF OUR ACTION
DISALLOWING THEIR CLAIMS FOR INCREASED RETIRED PAY BY REASON OF
INCLUSION OF SERVICE AS MIDSHIPMEN IN THE NAVAL ACADEMY UNDER
APPOINTMENTS MADE PRIOR TO MARCH 4, 1913.
BOTH RETIRED OFFICERS ARE PLAINTIFFS IN A PETITION FILED MARCH 9,
1959 IN THE COURT OF CLAIMS, SEEKING JUDGMENT IN THE MATTER.
SUBSEQUENTLY, ON BEHALF OF YOUR CLAIMANTS, YOU HAVE FILED WITH THE
ATTORNEY GENERAL OF THE UNITED STATES, A MOTION TO DISMISS THEIR
CLAIMS WITH THE COURT OF CLAIMS, TO BE HELD IN ESCROW PENDING THE
SATISFACTORY SETTLEMENT OF THE MATTER BY THIS OFFICE.
IN YOUR LETTERS YOU STATE THAT IT WAS CONCLUDED IN B-138512, DATED
MARCH 11, 1959 (38 COMP. GEN. 605), THAT THIS OFFICE WILL FOLLOW THE
HOLDING OF THE COURT OF CLAIMS IN THE BROWNELL (BROWNELL V. UNITED
STATES, 140 C.CLS. 427) AND THE FOSTER (FOSTER V. UNITED STATES, 140
C.CLS. 427) CASES AND WILL INCLUDE MIDSHIPMAN SERVICE UNDER
APPOINTMENTS MADE PRIOR TO MARCH 4, 1913, IN COMPUTING RETIRED PAY OF
OFFICERS WHO WERE ON ACTIVE DUTY ON JUNE 30, 1922, BUT WHO SUBSEQUENTLY
DID NOT HAVE CONTINUOUS ACTIVE DUTY. SINCE YOU INDICATE BOTH OFFICERS
IN THIS CASE FULFILLED THIS REQUIREMENT, YOU CONTEND THAT THE BASIC
REASON FOR CONSIDERING THEIR CLAIMS RES ADJUDICATA, IS NO LONGER PRESENT
AND THAT ALL THAT IS NEEDED NOW IS A MERE MATHEMATICAL COMPUTATION
INVOLVING A MINISTERIAL ACT.
COMMANDER BARRY WAS THE PLAINTIFF IN THE CASE OF BARRY V. UNITED
STATES, 123 C.CLS. 530, IN WHICH THE COURT DENIED HIS CLAIM FOR
ADDITIONAL RETIRED PAY FROM FEBRUARY 1, 1947, COMPUTED AT 75 PERCENT OF
HIS ACTIVE DUTY PAY AT DATE OF RETIREMENT. ADMIRAL SMALL WAS ONE OF THE
PLAINTIFFS IN BROYDERICK, ET AL. V. UNITED STATES, 140 C.CLS. 427, AND
HIS CLAIM FOR INCREASED RETIRED PAY EFFECTIVE OCTOBER 1, 1949, BASED ON
SECTION 511 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 311,
WAS DENIED. THE PERIODS COVERED BY THE PRESENT CLAIM ARE WITHIN THOSE
CONSIDERED IN THE COURT OF CLAIMS CASES AND THE PLAINTIFFS COULD HAVE
INCLUDED IN THEIR PETITIONS, CLAIMS FOR THE INCREASED RETIRED PAY ON THE
BASIS THEY NOW CLAIM THEY ARE ENTITLED, INASMUCH AS SUCH RIGHT HAD
EXISTED FROM THE DATE OF THEIR RETIREMENT. THE JUDGMENTS AS TO THEIR
RIGHTS TO ADDITIONAL RETIRED PAY FOR THE PERIODS COVERED BY COURT OF
CLAIMS WERE DETERMINATIVE NOT ONLY AS TO THE MATTERS LITIGATED BUT ALSO
AS TO ALL RELEVANT ISSUES WHICH COULD HAVE BEEN RAISED BUT WERE NOT
LITIGATED IN THE SUIT. HEISER V. WOODRUFF, ET AL., 327 U.S. 726;
STOCKBRIDGE TRIBE OF INDIANS V. UNITED STATES, 63 C.CLS. 268, 269;
INTERNATIONAL MARINE TURBINE CO. V. UNITED STATES, 74 C.CLS. 132;
ELECTRIC BOAT COMPANY V. UNITED STATES, 81 C.CLS. 361; AND MCSHAIN V.
UNITED STATES, 87 C.CLS. 601. SEE ALSO THE CASE OF FRED A. GATTUS V.
UNITED STATES, C.CLS. 540-58, DISMISSED MAY 13, 1959 BY THE COURT ON THE
GROUND THAT THE CLAIM WAS BARRED BY THE DOCTRINE OF RES JUDICATA. WE
HAVE ALSO HELD THAT SUCH DETERMINATIONS INCLUDE PERIODS BEFORE AND AFTER
THE DATE OF THE COURT'S JUDGMENT AND OUR OFFICE WOULD NOT TAKE ACTION
INCONSISTENT WITH THE RESULT WHICH WOULD BE REACHED IF THE MATTERS HERE
INVOLVED WERE AGAIN CONSIDERED BY THE COURTS. SEE 36 COMP. GEN. 489;
ID. 501.
FOR THE ABOVE-MENTIONED REASONS, NO ADDITIONAL PAYMENT TO EITHER
CLAIMANT WOULD BE WARRANTED AND THE DISALLOWANCES OF SEPTEMBER 18, 1958,
IN THE CASE OF COMMANDER BARRY, AND OCTOBER 3, 1958, IN THE CASE OF
ADMIRAL SMALL, ARE SUSTAINED.
B-114365, JUN 30, 1959
HEADNOTES-UNAVAILABLE
SUBJECT:
NEW U.S. GOVERNMENT BILL OF LADING FORMS
TO THE HEADS OF DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND OTHERS
CONCERNED:
U. S. GOVERNMENT BILL OF LADING AND RELATED STANDARD FORMS ARE BEING
REVISED TO MAKE THEM MORE ADAPTABLE FOR USE ON SHIPMENTS VIA ALL MODES
OF TRANSPORTATION AND TO PROVIDE FOR THE FURNISHING OF MORE COMPLETE
SHIPPING INFORMATION. THE FORMS INVOLVED ARE:
STANDARD FORM
NUMBER
1103 U. S. GOVERNMENT BILL OF LADING - ORIGINAL
1103A U. S. GOVERNMENT BILL OF LADING - MEMORANDUM COPY
1104 U. S. GOVERNMENT BILL OF LADING - SHIPPING ORDER
1105 U. S. GOVERNMENT FREIGHT WAYBILL - ORIGINAL
1106 U. S. GOVERNMENT FREIGHT WAYBILL - CARRIER'S COPY
1109 U. S. GOVERNMENT BILL OF LADING - ORIGINAL, CONTINUATION
SHEET
1109A U. S. GOVERNMENT BILL OF LADING - MEMORANDUM, CONTINUATION
SHEET
1110 U. S. GOVERNMENT BILL OF LADING - SHIPPING ORDER,
CONTINUATION SHEET
1111 U. S. GOVERNMENT FREIGHT WAYBILL - ORIGINAL, CONTINUATION
SHEET
1112 U. S. GOVERNMENT FREIGHT WAYBILL - CARRIER'S COPY, CONTINUATION
SHEET
1131 U. S. GOVERNMENT TRANSIT BILL OF LADING - ORIGINAL
1131A U. S. GOVERNMENT TRANSIT BILL OF LADING - MEMORANDUM COPY
1132 U. S. GOVERNMENT TRANSIT BILL OF LADING - SHIPPING ORDER
1133 U. S. GOVERNMENT TRANSIT FREIGHT WAYBILL - ORIGINAL
1134 U. S. GOVERNMENT TRANSIT FREIGHT WAYBILL - CARRIER'S COPY
THESE FORMS WILL BE AVAILABLE IN THREE DIFFERENT SETS OF SEVEN PARTS
EACH. THE ARRANGEMENT OF THE STANDARD FORMS WITHIN EACH SET WILL BE AS
FOLLOWS:
1. REGULAR BILL OF LADING SETS - STANDARD FORMS
NOS. 1103, 1104, 1105, 1106, AND THREE 1103A'S
2. SETS OF CONTINUATION SHEETS - STANDARD FORMS
NOS. 1109, 1110, 1111, 1112, AND THREE 1109A'S
3. TRANSIT BILL OF LADING SETS - STANDARD FORMS
NOS. 1131, 1132, 1133, 1134, AND THREE 1131A'S
SEPARATE COPIES OF STANDARD FORMS 1103A, 1109A, AND 1131A WILL BE
AVAILABLE FOR ADDITION TO THE SEVEN-PART SETS BY THOSE AGENCIES WHICH
NEED MORE THAN THREE COPIES OF THESE MEMORANDUM FORMS IN THEIR BILL OF
LADING SETS.
REGULAR BILL OF LADING SETS AND TRANSIT BILL OF LADING SETS WILL BE
PRENUMBERED AT THE TIME OF MANUFACTURE. AN ALPHABETICAL-NUMERICAL
SEQUENCE WILL BE FOLLOWED IN NUMBERING THESE ASSEMBLIES. REGULAR BILL
OF LADING SETS WILL START WITH THE NUMBER A 0,000,001 AND CONTINUE
THROUGH A 9,999,999, AFTER WHICH THE LETTER SYMBOL WILL CHANGE TO B,
THENCE C, ETC. TRANSIT BILL OF LADING SETS WILL START WITH THE NUMBER
AT 000,001 AND CONTINUE THROUGH AT 999,999, AFTER WHICH THE LETTER
SYMBOLS WILL CHANGE TO BT, THENCE CT, ETC.
AS HERETOFORE, A DEPARTMENT OR ESTABLISHMENT MAY HAVE OVERPRINTED ON
FORMS TO BE USED BY IT, WHEN MORE ECONOMICAL AND ADVANTAGEOUS TO DO SO,
THE NAME OF THE DEPARTMENT OR ESTABLISHMENT, NAME OF BUREAU OF SERVICE,
PLACE OF ISSUE, TITLE OF ISSUING OFFICER, AND DESIGNATION OF
APPROPRIATION OR FUND CHARGEABLE. OVERPRINTING, HOWEVER, WILL INCREASE
THE COST OF FORMS ORDERED.
IN ADDITION TO THE STANDARD FORMS SPECIFIED ABOVE, THE FOLLOWING ARE
ALSO BEING REVISED:
STANDARD FORM
NUMBER
1107 TEMPORARY RECEIPT IN LIEU OF U. S. GOVERNMENT BILL OF LADING
1108 CERTIFICATE IN LIEU OF LOST U. S. GOVERNMENT BILL OF
LADING - ORIGINAL
1108A CERTIFICATE IN LIEU OF LOST U.S. GOVERNMENT BILL OF
LADING - MEMORANDUM
ALL OF THE NEW BILL OF LADING FORMS WITH THE EXCEPTION OF STANDARD
FORM NUMBER 1107, WILL BE PUT INTO USE ON NOVEMBER 1, 1959, AND ON AND
AFTER THAT DATE THE USE OF THE OLD FORMS WILL BE DISCONTINUED. THE NEW
STANDARD FORM NO. 1107 WILL NOT BE USED UNTIL EXISTING SUPPLIES OF THE
PRESENT FORM IN THE DEPARTMENTS AND AGENCIES AND IN THE FEDERAL SUPPLY
SERVICE ARE DEPLETED. IN ORDER TO INSURE THAT ADEQUATE SUPPLIES ARE
AVAILABLE IN TIME TO MEET THE NOVEMBER 1ST DEADLINE, IT IS IMPORTANT
THAT EACH AGENCY OR OTHER AUTHORIZED PURCHASER NOTIFY THE GENERAL
SERVICES ADMINISTRATION BY JULY 15, 1959, OF (1) ESTIMATED ANNUAL
REQUIREMENTS ON EACH OF THE FORMS OR FORM ASSEMBLIES AND (2) ANTICIPATED
FREQUENCY OF REORDERS. SUCH NOTIFICATIONS SHOULD BE FORWARDED TO:
GENERAL SERVICES ADMINISTRATION
FEDERAL SUPPLY SERVICE
INVENTORY MANAGEMENT BRANCH
ROOM 6051
REGIONAL OFFICE BUILDING
WASHINGTON 25, D. C.
THESE NOTIFICATIONS SHOULD BE ACCOMPANIED BY PURCHASE ORDERS COVERING
AN INITIAL 90-DAY SUPPLY OF THE NEW FORMS. IF AGENCY OVER-PRINTING IS
DESIRED ON A SUBSEQUENT ORDER, A PRINTING AND BINDING REQUISITION
CONTAINING THE COPY FOR THE OVERPRINT SHOULD ACCOMPANY SUCH ORDER.
CHAPTER 3000 OF TITLE 5 OF THE GENERAL ACCOUNTING OFFICE POLICY AND
PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES IS BEING AMENDED TO
COVER THE USE OF THE NEW BILL OF LADING FORMS. DISTRIBUTION OF THESE
REVISIONS WILL BE MADE IN THE NEAR FUTURE.
B-139217, JUN 29, 1959
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
LIEUTENANT COLONEL J. L. WHIPPLE, FC; DEPARTMENT OF THE ARMY:
REFERENCE IS MADE TO YOUR LETTER OF JANUARY 5, 1959, REQUESTING
DECISION AS TO THE PROPER AMOUNT OF ANNUITY PAYMENT FOR THE MONTH OF
JUNE 1958 TO MRS. LUCINA ECLIPSE RAFAEL, WIDOW OF FIRST LIEUTENANT
BERNARDINO A. RAFAEL, PHILIPPINE SCOUTS, RETIRED, WHO DIED JUNE 28,
1958. IT IS STATED THAT THE REQUEST FOR DECISION HAS BEEN ALLOCATED D.
O. NUMBER 409 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF
DEFENSE.
SECTION 22A OF THE ACT OF JUNE 3, 1916, AS ADDED BY SECTION 22 OF THE
ACT OF JUNE 4, 1920, 41 STAT. 770, PROVIDES IN PERTINENT PART THAT
OFFICERS OF THE PHILIPPINE SCOUTS "SHALL HEREAFTER BE RETIRED UNDER THE
SAME CONDITIONS, AND THOSE HEREAFTER PLACED ON THE RETIRED LIST SHALL
RECEIVE THE SAME RETIRED PAY, AS OTHER OFFICERS OF THE LIKE GRADES AND
LENGTH OF SERVICE."
THE ACT OF MAY 7, 1932, 47 STAT. 150, 10 U.S.C. 1028C (1946 EDITION),
PROVIDES:
"THAT ALL WARRANT OFFICERS AND ENLISTED MEN WHO SERVED IN THE ARMY,
NAVY, MARINE CORPS, OR COAST GUARD OF THE UNITED STATES DURING THE WORLD
WAR OR THE SPANISH-AMERICAN WAR, AND WHOSE SERVICE DURING SUCH WAR WAS
CREDITABLE, AND WHO HAVE BEEN OR HEREAFTER MAY BE RETIRED ACCORDING TO
LAW, SHALL ON THE DATE OF APPROVAL OF THIS ACT OR UPON RETIREMENT IN THE
CASE OF THOSE NOW ON THE ACTIVE LISTS OF THE SERVICES NAMED HEREIN, BE
ADVANCED IN RANK ON THE RETIRED LIST TO THE HIGHEST COMMISSIONED,
WARRANT, OR ENLISTED GRADE HELD BY THEM DURING SUCH WAR: *** AND
PROVIDED FURTHER, THAT NO INCREASE IN ACTIVE OR RETIRED PAY OR
ALLOWANCES SHALL RESULT FROM THE PASSAGE OF THIS ACT."
SECTIONS 2 AND 3 OF THE ACT OF JUNE 30, 1941, 55 STAT. 394, 10 U.S.C.
939, 982A (1946 EDITION), PROVIDED THAT:
"SEC. 2. AN ENLISTED MAN OF THE REGULAR ARMY OR OF THE PHILIPPINE
SCOUTS WHO HAS SERVED TWENTY YEARS OR MORE IN THE MILITARY FORCES OF THE
UNITED STATES AND WHO HAS BECOME PERMANENTLY INCAPACITATED FOR ACTIVE
SERVICE DUE TO PHYSICAL DISABILITY INCURRED IN LINE OF DUTY SHALL BE
PLACED ON THE RETIRED LIST.
"SEC. 3. WHEN AN ENLISTED MAN IS PLACED ON THE RETIRED LIST PURSUANT
TO THE PROVISIONS OF THE NEXT PRECEDING SECTION HE SHALL RECEIVE 75 PER
CENTUM OF THE AVERAGE PAY HE WAS RECEIVING FOR SIX MONTHS PRIOR TO HIS
RETIREMENT ***."
SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823,
PERMITTED "ANY MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES
HERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY AND NOW RECEIVING OR
ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY" TO ELECT WITHIN FIVE
YEARS AFTER OCTOBER 1, 1949, TO QUALIFY FOR DISABILITY RETIRED PAY UNDER
THE PROVISIONS OF THAT ACT. SECTION 402(D) OF THE ABOVE ACT, 63 STAT.
818, PROVIDED THAT A PERSON QUALIFYING FOR DISABILITY RETIRED PAY UNDER
TITLE IV OF THE ACT WOULD BE ENTITLED TO SUCH PAY COMPUTED BY
MULTIPLYING THE MONTHLY BASIC PAY AT THE TIME OF RETIREMENT BY (1) A
NUMBER EQUAL TO THE SUM OF YEARS OF ACTIVE SERVICE CREDITABLE TO THE
MEMBER TIMES 2 1/2 PER CENTUM, OR (2) BY THE PERCENTAGE OF DISABILITY AT
THE TIME OF RETIREMENT. THE SECOND PROVISO TO SECTION 402(D) WAS AS
FOLLOWS:
"THAT THE DISABILITY RETIREMENT PAY OF ANY SUCH MEMBER WHO SHALL HAVE
HELD A TEMPORARY RANK, GRADE, OR RATING HIGHER THAN THE RANK, GRADE, OR
RATING HELD BY HIM AT THE TIME OF PLACEMENT OF HIS NAME UPON THE
TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF HIS RETIREMENT,
WHICHEVER IS EARLIER, AND WHO SHALL HAVE SERVED SATISFACTORILY IN SUCH
HIGHER RANK, GRADE, OR RATING AS DETERMINED BY THE SECRETARY CONCERNED,
SHALL BE COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF SUCH HIGHER
RANK, GRADE, OR RATING TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE BEEN
SERVING ON ACTIVE DUTY IN SUCH HIGHER RANK, GRADE, OR RATING AT THE TIME
OF PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT
THE TIME OF RETIREMENT, WHICHEVER IS EARLIER."
SECTION 513 OF THE CAREER COMPENSATION ACT OF 1949 PROVIDES IN
PERTINENT PART THAT:
"ANY ENLISTED PERSON OR WARRANT OFFICER OF THE UNIFORMED SERVICES WHO
SERVED IN WORLD WAR I, HERETOFORE OR HEREAFTER RETIRED FOR ANY REASON,
SHALL (1) BE ADVANCED ON THE RETIRED LIST OF THE SERVICE CONCERNED TO
THE HIGHEST FEDERALLY RECOGNIZED OFFICER RANK OR GRADE SATISFACTORILY
HELD BY SUCH ENLISTED PERSON OR WARRANT OFFICER UNDER A PERMANENT OR
TEMPORARY APPOINTMENT FOR ANY PERIOD OF SERVICE BETWEEN APRIL 6, 1917,
AND NOVEMBER 11, 1918, AND (2) IF NOT ENTITLED TO RECEIVE RETIRED PAY OR
DISABILITY RETIREMENT PAY BASED ON A HIGHER OFFICER RANK OR GRADE BY
SOME OTHER PROVISION OF LAW, BE ENTITLED TO RECEIVE RETIRED PAY OR
DISABILITY RETIREMENT PAY COMPUTED ON THE BASIS OF THE OFFICER RANK OR
GRADE TO WHICH PREVIOUSLY ADVANCED ON A RETIRED LIST OR COMPUTED ON THE
BASIS OF THE OFFICER GRADE OR RANK AUTHORIZED BY THIS SECTION ***."
IT APPEARS THAT ON NOVEMBER 30, 1941, BERNARDINO A. RAFAEL WAS
RETIRED AS A SERGEANT, PHILIPPINE SCOUTS, UNDER THE PROVISIONS OF THE
ACT OF JUNE 30, 1941, SUPRA; AND THAT HE THEN HAD TOTAL SERVICE, ALL OF
WHICH WAS ACTIVE, OF 24 YEARS, 6 MONTHS, 14 DAYS, INCLUDING COMMISSIONED
SERVICE FROM NOVEMBER 20, 1918, TO DECEMBER 19, 1918. IT FURTHER
APPEARS THAT CONCURRENTLY WITH RETIREMENT HE WAS ADVANCED ON THE RETIRED
LIST TO THE RANK OF FIRST LIEUTENANT UNDER THE ABOVE ACT OF MAY 7, 1932.
ALSO, IT APPEARS THAT FROM DECEMBER 1, 1941, TO SEPTEMBER 30, 1949, HE
WAS PAID THE RETIRED PAY OF A SERGEANT, PHILIPPINE SCOUTS, EXCEPT FOR
PERIODS WHEN HE ELECTED TO WAIVE RETIRED PAY IN ORDER TO RECEIVE
COMPENSATION FROM THE VETERANS ADMINISTRATION.
ON SEPTEMBER 13, 1950, THE ARMY PHYSICAL REVIEW COUNCIL DETERMINED
THAT LIEUTENANT RAFAEL WAS 50 PERCENT DISABLED AT THE TIME OF HIS
RETIREMENT. EARLIER, AUGUST 31, 1950, IT HAD BEEN DETERMINED THAT HE
WAS ENTITLED TO RETIRED PAY AS A FIRST LIEUTENANT UNDER THE PROVISIONS
OF SECTION 513 OF THE CAREER COMPENSATION ACT OF 1949, SUPRA. WHILE
THIS DETERMINATION OF ENTITLEMENT TO OFFICER PAY SOLELY UNDER AUTHORITY
OF SECTION 513 WAS ERRONEOUS (32 COMP. GEN. 71), IT IS ASSUMED THAT A
SIMILAR DETERMINATION WOULD BE MADE ESTABLISHING THAT HE SERVED
SATISFACTORILY AS A FIRST LIEUTENANT WITHIN THE CONTEMPLATION OF THE
SECOND PROVISO TO SECTION 402(D) OF THE CAREER COMPENSATION ACT. ON THE
BASIS OF THE DETERMINATION OF ENTITLEMENT TO RETIRED PAY AS AN OFFICER
UNDER SECTION 513, LIEUTENANT RAFAEL WAS ADVISED BY THE ACCOUNTING AND
DISBURSING OFFICE, CLARK AIR FORCE BASE, ON DECEMBER 14, 1950 THAT:
"PLEASE BE ADVISED THAT EFFECTIVE 1 OCTOBER 1949, YOU ARE ENTITLED TO
RECEIVE RETIRED PAY COMPUTED BY ONE OF THE FOLLOWING METHODS:
"(A) $261.85 - AMOUNT OF PAY BASED ON 75% DISABILITY
"(B) 218.21 - AMOUNT OF PAY BASED ON CREDITABLE SERVICE
"(C) 241.50 - AMOUNT OF PAY COMPUTED UNDER THE LAW IN EFFECT
PRECEDING PUBLIC LAW 351, 81ST CONGRESS, APPROVED 12 OCTOBER 1949."
ON APRIL 20, 1951, THE OFFICER REPLIED TO THE ABOVE LETTER OF
DECEMBER 14, 1950, STATING THAT" *** I ELECT TO BE PAID AS INDICATED IN
(A) OF PARAGRAPH 2, OF THE ATTACHED LETTER."
PRESUMABLY, LIEUTENANT RAFAEL'S RETIRED PAY WAS COMPUTED AS $261.85
PER MONTH FROM OCTOBER 1, 1949, TO APRIL 30, 1952, UNDER THE CAREER
COMPENSATION ACT OF 1949; AS $272.33 PER MONTH FROM MAY 1, 1952, TO
MARCH 31, 1955, UNDER THE ACT OF MAY 19, 1952, 66 STAT. 79; AS $310.05
PER MONTH FROM APRIL 1, 1955, TO MAY 31, 1958, UNDER THE ACT OF MARCH
31, 1955, 69 STAT. 18; AND AS $328.65 PER MONTH FROM JUNE 1, 1958, TO
THE DATE OF HIS DEATH, UNDER THE ACT OF MAY 20, 1958, 72 STAT. 122 - ALL
COMPUTATIONS BEING ON THE BASIS OF ENTITLEMENT TO RETIRED PAY AS OF
OCTOBER 1, 1949, AT 75 PERCENT OF THE PAY OF A FIRST LIEUTENANT WITH 24
YEARS' SERVICE.
IT IS STATED THAT ON DECEMBER 15, 1953, LIEUTENANT RAFAEL ELECTED
UNDER THE PROVISIONS OF THE ACT OF AUGUST 8, 1953, 67 STAT. 501, TO
RECEIVE REDUCED RETIRED PAY TO PROVIDE AN ANNUITY FOR HIS DEPENDENTS
FOLLOWING HIS DEATH, AND THAT THE AMOUNT TO BE DEDUCTED FROM HIS MONTHLY
RETIRED PAY AND THE AMOUNT OF THE ANNUITY WHICH WOULD ACCRUE EACH MONTH
TO HIS DEPENDENTS WERE COMPUTED ON THE BASIS OF ENTITLEMENT TO RETIRED
PAY ON DECEMBER 15, 1953, AT THE RATE OF $272.33 PER MONTH.
THE LAST SENTENCE OF SECTION 2 OF THE NATIONAL DEFENSE ACT OF 1916,
AS AMENDED, WHICH WAS DELETED BY SECTION 3 OF THE ACT OF JUNE 28, 1947,
61 STAT. 192, PROVIDED THAT, "EXCEPT IN TIME OF WAR OR SIMILAR EMERGENCY
WHEN THE PUBLIC SAFETY DEMANDS IT, THE NUMBER OF ENLISTED MEN IN THE
REGULAR ARMY SHALL NOT EXCEED TWO HUNDRED-EIGHTY THOUSAND, INCLUDING THE
PHILIPPINE SCOUTS." ALSO, SEE 3 COMP. GEN. 132, AND CASES THEREIN CITED,
TO THE EFFECT THAT ENLISTED MEN OF THE PHILIPPINE SCOUTS WERE ENLISTED
MEN OF THE REGULAR ARMY WITHIN THE CONTEMPLATION OF VARIOUS STATUTES.
WE THINK THAT THE ABOVE STATUTE AND HOLDINGS WARRANT THE CONCLUSION
THAT AN ENLISTED MAN OF THE PHILIPPINE SCOUTS RETIRED FOR DISABILITY
PRIOR TO OCTOBER 1, 1949, WAS A "MEMBER OR FORMER MEMBER OF THE
UNIFORMED SERVICES HERETOFORE RETIRED FOR PHYSICAL DISABILITY" WITHIN
THE MEANING OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, AND
THUS ELIGIBLE TO MAKE AN ELECTION UNDER THAT SECTION.
ON APRIL 20, 1951, WHICH WAS WITHIN THE FIVE-YEAR PERIOD PRESCRIBED
IN THE ABOVE SECTION, LIEUTENANT RAFAEL MADE AN ELECTION UNDER SECTION
411. HE HAD BEEN TOLD THAT HE WAS ENTITLED TO MONTHLY RETIRED PAY OF
(A) $261.85, 75 PERCENT OF THE BASIC PAY, UNDER THE CAREER COMPENSATION
ACT OF A FIRST LIEUTENANT WITH 24 YEARS' SERVICE, (B) $218.21, 62 1/2
PERCENT - 25 (24 YEARS, 6 MONTHS, 14 DAYS, AS 25 YEARS) TIMES 2 1/2
PERCENT - OF THE ABOVE BASIC PAY, OR (C) $241.50, 75 PERCENT OF THE
ACTIVE-DUTY PAY ON SEPTEMBER 30, 1949, OF A FIRST LIEUTENANT WITH 24
YEARS' SERVICE. THE PROFFERED OPTIONS (A) AND (C) WERE ERRONEOUS SINCE
THE OFFICER NEVER WAS ENTITLED TO RETIRED PAY AT 75 PERCENT OF THE PAY
OF A FIRST LIEUTENANT. HE SHOULD HAVE BEEN ADVISED THAT HE WAS ENTITLED
TO (1) 50 PERCENT (PERCENTAGE OF DISABILITY) OF THE BASIC PAY UNDER THE
CAREER COMPENSATION ACT OF A FIRST LIEUTENANT WITH 24 YEARS' SERVICE, OR
(2) 62 1/2 PERCENT OF SUCH BASIC PAY, COMPUTED ON YEARS OF ACTIVE DUTY,
AS STATED IN OPTION (B) OR (3), THE RETIRED PAY OF A SERGEANT WHICH HE
WAS RECEIVING ON SEPTEMBER 30, 1949. THE OFFICER ELECTED TO TAKE THE
PROFFERED OPTION (A). WHILE THE AMOUNT STATED TO BE DUE UNDER THAT
OPTION WAS MORE THAN THAT TO WHICH HE WAS ENTITLED, HE APPARENTLY
INTENDED TO ELECT TO TAKE THE HIGHEST RATE OF RETIRED PAY WHICH HE MIGHT
CLAIM UNDER THE DIFFERENT OPTIONS WHICH WERE AUTHORIZED UNDER SECTION
411 OF THAT ACT. WE THINK THAT THE ELECTION SHOULD BE SO CONSIDERED.
THE HIGHEST RATE OF RETIRED PAY WHICH LIEUTENANT RAFAEL MIGHT CLAIM
EFFECTIVE OCTOBER 1, 1949, WAS $218.21 PER MONTH, OPTION (B). WE THINK
THAT HE BECAME ENTITLED TO RETIRED PAY IN THAT AMOUNT EFFECTIVE OCTOBER
1, 1949. EFFECTIVE MAY 1, 1952, ON THE SAME BASIS HE WAS ENTITLED TO
RETIRED PAY AT THE RATE OF $226.94 PER MONTH. THIS WAS THE RATE TO
WHICH HE WAS ENTITLED ON DECEMBER 15, 1953, THE DATE OF HIS ELECTION TO
RECEIVE REDUCED RETIRED PAY TO PROVIDE AN ANNUITY FOR HIS SURVIVING
DEPENDENTS. THE AMOUNT TO BE DEDUCTED FROM HIS PAY AND THE AMOUNT OF
SUCH ANNUITY SHOULD HAVE BEEN COMPUTED ON THAT BASIS.
THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.
INSTRUCTIONS ARE BEING ISSUED TODAY THAT APPROPRIATE AUDIT ACTION BE
TAKEN REGARDING OVERPAYMENTS OF RETIRED PAY TO LIEUTENANT RAFAEL.
B-139304, JUN 29, 1959
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
CHIEF OF ENGINEERS DEPARTMENT OF THE ARMY:
REFERENCE IS MADE TO 3RD INDORSEMENT, DATED APRIL 9, 1959, FORWARDING
A REQUEST OF THE DISBURSING OFFICE, U.S. ARMY ENGINEER DISTRICT,
VICKSBURG, MISSISSIPPI, FOR AN ADVANCE DECISION AS TO THE PROPRIETY OF
PAYMENT OF THE CLAIM OF MR. HAROLD G. SCHULTZ, AN EMPLOYEE OF THAT
OFFICE, FOR REFUND OF $7.53 REPRESENTING LOST DISCOUNT COLLECTED FROM
HIM.
THE TOTAL DISCOUNT OF $15.06 WAS COLLECTED FROM MESSRS. SCHULTZ AND
ARLEDGE IN THE AMOUNTS OF $7.53 EACH. MR. ARLEDGE HAS NOT MADE A CLAIM
FOR THE AMOUNT COLLECTED FROM HIM. THE DISCOUNT REPRESENTS THE
DIFFERENCE OF 10 PERCENT BETWEEN THE GROSS RATES AND NET RATES OF THE
ELECTRICAL BILL FOR THE SARDIS DAM FIELD OFFICE FOR THE PERIOD BETWEEN
NOVEMBER 17 AND DECEMBER 17, 1958.
THE DISCOUNT PROVISION OF SCHEDULE B-2 OF CONTRACT NO.
DA-22-052-ENG-1395 WITH THE TALLAHATCHIS VALLEY ELECTRIC POWER
ASSOCIATION PROVIDES AS FOLLOWS:
"PAYMENT
"ABOVE RATES, INCLUDING SURCHARGE, ARE NET, THE GROSS RATES BEING TEN
PAID WITHIN TEN (10) DAYS FROM DATE OF BILL, THE GROSS RATES SHALL
APPLY."
THE ONLY CONTENTION RAISED BY MR. SCHULTZ IS THAT THE INVOICES DID
NOT BEAR A DATE AND THEREFORE THE DISCOUNT DATE COULD NOT PROPERLY BE
COMPUTED.
THE SUPERINTENDENT, SARDIS DAN FIELD OFFICE, BY 3RD INDORSEMENT DATED
MARCH 12, 1959, STATED THAT THE INVOLVED INVOICES WERE RECEIVED AT THAT
OFFICE ON JANUARY 6, 1959, AND THAT THE FINAL DATE ON WHICH PAYMENT
COULD HAVE BEEN MADE ON THESE INVOICES AND THE DISCOUNT PROPERLY
DEDUCTED WAS JANUARY 13, 1959. PAYMENT ON THE INVOICE WAS NOT MADE
UNTIL JANUARY 14, 1959.
THE MANAGER OF THE TALLAHATCHIE VALLEY ELECTRIC POWER ASSOCIATION BY
LETTER DATED MARCH 11, 1959, TO MR. MCLAUGHLIN, COMPTROLLER, U.S. ARMY
ENGINEER DISTRICT, VICKSBURG, MISSISSIPPI, STATED IN PART AS FOLLOWS:
"IT IS TRUE THAT THE ELECTRIC BILLS WE SEND OUT DO NOT SHOW THE DATE
THEY LEAVE THE OFFICE EXCEPT POST MARK. HOWEVER, IN THE EXTREME RIGHT
HAND CORNER OF THE BILL THE DATE THAT THE GROSS RATE IS APPLICABLE IS
GIVEN. IN THE CASE OF THE BILLS REFERRED TO IN YOUR LETTER, IT IS
ALWAYS THE 13TH OF THE MONTH. THIS IS THE SAME BILLING THAT GOES TO ALL
OTHER CONSUMERS OF THE ASSOCIATION. IT IS RATHER IMPRACTICAL TO HAVE
BOTH THE BILLING DATE AND THE DISCOUNT DATE, SINCE IN MOST CASES THESE
BILLS ARE MAILED OUT MORE THAN TEN DAYS IN ADVANCE OF THE DISCOUNT DATE.
"WE HAVE CHECKED ON OTHER BILLS GOING OUT ON THE SAME ROUTE, IN FACT,
ON THE SAME ROAD AS THE U.S. ENGINEERS FIELD OFFICE AT SARDIS DAM, AND A
NUMBER OF THESE BILLS WERE PAID ON JANUARY 3RD. THIS IS DEFINITE PROOF
TO US THAT ALL OF THE BILLS WERE MAILED NOT LATER THAN JANUARY 3RD. AS
A RULE, THESE BILLS GO OUT ON THE FIRST OR SECOND OF EACH MONTH. OUR
POLICY IS, AND ALWAYS HAS BEEN, THAT IF FOR ANY REASON BILLS ARE NOT
MAILED OUT AT LEAST TEN DAYS BEFORE THE DATE OF THE DISCOUNT THAT THE
DISCOUNT IS EXTENDED. THAT, WE FEEL, IS A PART OF OUR RATE SCHEDULE."
THE ADMINISTRATIVE REPORT ALSO SHOWS THAT ALTHOUGH MR. ARLEDGE
DELAYED FOR 2 DAYS THE PROCESSING OF THE INVOICES ON WHICH THE DISCOUNT
WAS DEDUCTED, THE INVOICES WERE IN MR. SCHULTZ'S HANDS ON JANUARY 13,
1959, AND COULD HAVE BEEN PAID ON THAT DATE EXCEPT FOR HIS OVERSIGHT IN
HAVING THAN VOUCHED AND PASSED FOR PAYMENT.
THIS OFFICE KNOWS OF NO GENERAL AUTHORITY FOR THE ASSESSMENT OF
CHARGES AGAINST EMPLOYEES OF THE GOVERNMENT FOR LOSSES SUSTAINED BY THE
GOVERNMENT AS THE RESULT OF ERROR IN JUDGMENT OR NEGLECT OF DUTY.
ACCORDINGLY, IN THE ABSENCE OF AUTHORITY CONTAINED IN A SPECIFIC
PROVISION OF LAW, AN APPROPRIATE REGULATION, OR OTHERWISE, THE CHARGES
AGAINST MESSRS. SCHULTS AND ARLEDGE, IN THE AMOUNT OF $7.53 EACH,
SHOULD BE REMOVED AND, IF OTHERWISE PROPER, ACTION TAKEN TO REFUND THE
AMOUNTS COLLECTED.
THE VOUCHERS SUBMITTED WITH YOUR REQUEST FOR AN ADVANCE DECISION ARE
RETURNED HEREWITH.
B-139624, JUN 29, 1959
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
SECRETARY OF THE AIR FORCE:
REFERENCE IS MADE TO LETTER OF APRIL 29, 1959, FROM THE ASSISTANT
SECRETARY OF THE AIR FORCE, PER DIEM, TRAVEL AND TRANSPORTATION
ALLOWANCE COMMITTEE CONTROL NO. 59-12, REQUESTING A DECISION AS TO
WHETHER IT WOULD BE WITHIN THE "SPIRIT AND INTENT OF THE LAW" IF THE
JOINT TRAVEL REGULATIONS WERE AMENDED TO PROVIDE (1) AN ALLOWANCE FOR
TRANSPORTATION OF A TRAILER WITHIN ALASKA, AND (2) AN ALLOWANCE FOR
TRANSPORTATION OF A TRAILER BETWEEN THE STATE OF ALASKA AND ANOTHER ONE
OF THE STATES WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES.
PUBLIC LAW 20 (ACT OF MARCH 31, 1955, 69 STAT. 22) AMENDED SECTION
303(C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, TO PROVIDE
IN PERTINENT PART, THAT -
"*** IN LIEU OF TRANSPORTATION OF BAGGAGE AND HOUSEHOLD EFFECTS, A
MEMBER OF A UNIFORMED SERVICE WHO TRANSPORTS A HOUSE TRAILER OR MOBILE
DWELLING WITHIN THE CONTINENTAL UNITED STATES FOR USE AS A RESIDENCE AND
WHO WOULD OTHERWISE BE ENTITLED TO TRANSPORTATION OF BAGGAGE AND
HOUSEHOLD EFFECTS, UNDER THIS SECTION, SHALL UNDER REGULATIONS
PRESCRIBED BY THE SECRETARY CONCERNED BE ENTITLED TO A REASONABLE
ALLOWANCE, NOT TO EXCEED 20 CENTS PER MILE, OR TO THE DISLOCATION
ALLOWANCE AUTHORIZED IN THIS SECTION, WHICHEVER HE SHALL ELECT."
THE REGULATIONS INVOLVED ARE CONTAINED IN CHAPTER 10 OF THE JOINT
TRAVEL REGULATIONS. PARAGRAPH 10000 OF THAT CHAPTER STATES THAT THE
STATUTE PROVIDING FOR THE TRAILER ALLOWANCE LIMITS THE ALLOWANCE TO THE
DISTANCE A HOUSE TRAILER IS ACTUALLY TRANSPORTED "WITHIN CONTINENTAL
UNITED STATES" AND TO CASES IN WHICH THE HOUSE TRAILER IS INTENDED FOR
USE AS A RESIDENCE AT DESTINATION; THAT THE TRANSPORTATION OF A HOUSE
TRAILER OUTSIDE THE "UNITED STATES" IS AT PERSONAL EXPENSE OF THE
MEMBER.
IN OUR DECISION OF DECEMBER 18, 1958, B-137903, 38 COMP. GEN. 447, WE
CONSIDERED THE EFFECT OF SECTION 8(D) OF THE ACT OF JULY 7, 1958, PUBLIC
LAW 85-508, 72 STAT. 344, WHICH PROVIDES THAT "ALL OF THE LAWS OF THE
UNITED STATES SHALL HAVE THE SAME FORCE AND EFFECT WITHIN SAID STATE
(ALASKA) AS ELSEWHERE WITHIN THE UNITED STATES." WE CONCLUDED THAT THE
EFFECT OF THAT PROVISION MERELY WAS TO GIVE THE LAWS OF THE UNITED
STATES SUCH AS THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 806,
AND THE TRAVEL EXPENSE ACT OF 1949, 63 STAT. 166, THE SAME VALIDITY AND
FORCE IN ALASKA - AFTER ADMISSION AS A STATE - AS ELSEWHERE IN THE
UNITED STATES. WE THEN WENT ON TO SAY IN THAT DECISION THAT "UNDER THIS
VIEW OF THE QUOTED STATUTORY PROVISION LAWS OF THE UNITED STATES SUCH AS
HERE INVOLVED WHILE BEING APPLICABLE IN ALASKA WOULD IN NO WAY BE
MODIFIED BY THE ADMISSION OF ALASKA AS A STATE AND THE SCOPE AND
COVERAGE OF ANY PARTICULAR LAW WOULD, AS IS THE CASE AT THE PRESENT
TIME, DEPEND UPON THE LANGUAGE AND LEGISLATIVE HISTORY OF SUCH LAW."
THE SIGNIFICANT TERM IN THE STATUTES CONSIDERED IN THAT DECISION AND
IN SECTION 303(C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, IS
"CONTINENTAL UNITED STATES." UNDER THE STATUTES DIFFERENT TREATMENT WAS
ACCORDED EMPLOYEES AND MEMBERS OF THE UNIFORMED SERVICES OF THE UNITED
STATES IN THE TERRITORY OF ALASKA BECAUSE THEY WERE OUTSIDE THE
"CONTINENTAL UNITED STATES." PARAGRAPH 1150-16 OF THE JOINT TRAVEL
REGULATIONS DEFINES THE TERM "UNITED STATES" AS USED IN THE JOINT TRAVEL
REGULATIONS AS "THE 48 STATES AND THE DISTRICT OF COLUMBIA." THAT SAME
DEFINITION CONSISTENTLY HAS BEEN APPLIED IN CONSTRUING THE TERM
"CONTINENTAL UNITED STATES." CF. 16 COMP. GEN. 772. UNDER ANALOGOUS
CIRCUMSTANCES, WE CONCLUDED IN OUR DECISION, 38 COMP. GEN. 447, THAT THE
TRAVEL EXPENSE ACT OF 1949, 63 STAT. 166, AND THE ADMINISTRATIVE
EXPENSES ACT OF 1946, 60 STAT. 806, WOULD CONTINUE TO APPLY IN ALASKA
AFTER HER ADMISSION AS A STATE IN THE SAME MANNER AS THERETOFORE
APPLIED. ON THE BASIS OF THAT DECISION AND SINCE NO INDICATION HAD BEEN
FOUND OF A LEGISLATIVE INTENT TO ABOLISH THE PRESENT DIFFERENTIATION
BETWEEN ALASKA AND THE "48 STATES AND THE DISTRICT OF COLUMBIA," OUR
VIEW IS THAT SECTION 303(C) SHOULD CONTINUE TO BE APPLIED AS HERETOFORE
UNTIL SUCH TIME AS THE CONGRESS MAY EXPRESSLY MODIFY SAID SECTION TO
PRESCRIBE A DIFFERENT METHOD OF APPLICATION.
ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.
B-137618, JUN 23, 1959
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
O. P. EASTERWOOD, JR., ESQUIRE:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 10, 1959, WITH
ENCLOSURES, RELATIVE TO THE PROTEST OF LEROY PEDERSEN AGAINST THE AWARD
OF A SALES CONTRACT TO THE HUGO NOU CORPORATION UNDER INVITATION FOR
BIDS NO. 64-709-S-58-4, ISSUED BY THE SOUTHERN AIR MATERIAL AREA, CLARK
AIR FORCE BASE, PHILIPPINE ISLANDS, ON FEBRUARY 6, 1958.
AS YOU WERE PREVIOUSLY ADVISED, THE SECRETARY OF THE AIR FORCE WAS
REQUESTED TO FURNISH A REPORT CONCERNING THE "SUBSTANTIAL EVIDENCE"
SUBMITTED BY MR. PEDERSEN TO SHOW THAT THE JOINT VENTURE WAS FINANCIALLY
CAPABLE AND HAD THE TECHNICAL FACILITIES TO PERFORM THE SALES CONTRACT.
THE SUPPLEMENTAL REPORT HAS BEEN CAREFULLY REVIEWED IN THE LIGHT OF THE
ARGUMENTS ADVANCED AND THE EVIDENCE SUBMITTED BY MR. PEDERSEN. HOWEVER,
WE REMAIN OF THE OPINION THAT NO BASES EXIST, EITHER IN FACT OR LAW, FOR
QUESTIONING THE AWARD AS MADE.
THE ADMINISTRATIVE REPORT, WHICH IS A CLASSIFIED DOCUMENT AND
THEREFORE SUBJECT TO THE PRESCRIBED PROCEDURES FOR SAFEGUARDING NATIONAL
SECURITY INFORMATION, CONCLUSIVELY ESTABLISHES THAT THE ADMINISTRATIVE
DETERMINATION TO REJECT THE BID OF THE JOINT VENTURE WAS ENTIRELY
PROPER. THE RECORD AS SUPPLEMENTED SPECIFICALLY CONSIDERED THE
ARGUMENTS AND EVIDENCE PRESENTED BY MR. PEDERSEN AND WE BELIEVE THAT THE
RECORD MUST BE ACCORDED FINALITY SO FAR AS THE MATTER OF RESPONSIBILITY
IS CONCERNED. IN CASES SIMILAR TO THE ONE HERE INVOLVED, WE INVARIABLY
ACCEPT THE ADMINISTRATIVE REPORT OF BID REJECTION WHEN IT IS CLEARLY
DEMONSTRATED THEREBY THAT THE REPORTED ACTION WAS TAKEN IN GOOD FAITH
AND IS FULLY SUPPORTED BY THE RECORD.
WHILE WE MAY NOT FULLY DISCUSS THE MERITS OF MR. PEDERSEN'S PROTEST
IN THE LIGHT OF THE CLASSIFICATION OF THE ADMINISTRATIVE REPORT, WE ARE
QUITE SURE THAT YOU WILL AGREE THAT TO DO OTHERWISE WOULD CONTRAVENE THE
EXPRESS PROHIBITIONS AGAINST THE RELEASE OF CLASSIFIED INFORMATION AS
CONTAINED IN SECTION 7 OF EXECUTIVE ORDER 10501 DATED NOVEMBER 5, 1953,
3 CFR 983 AND 984, 1949-1953 COMPILATION.
ACCORDINGLY, WE REMAIN OF THE VIEW THAT THE REJECTION OF THE BID OF
THE JOINT VENTURE WAS NOT IMPROPER UNDER THE CIRCUMSTANCES THERE
PRESENT.
B-139600, JUN 23, 1959
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
LIEUTENANT COLONEL J. L. WHIPPLE, F. C.; DEPARTMENT OF THE ARMY:
REFERENCE IS MADE TO YOUR UNDATED LETTER, WITH ENCLOSURES, FORWARDED
HERE BY INDORSEMENT DATED JUNE 1, 1959, OF THE FIELD DIVISION, OFFICE OF
THE CHIEF OF FINANCE, REQUESTING DECISION WHETHER PAYMENT MAY BE MADE TO
FIRST LIEUTENANT MICHAEL J. COLLINS, JR., U.S.A.R., ON A VOUCHER IN THE
AMOUNT OF $6,919.38, REPRESENTING THE DIFFERENCE BETWEEN THE PAY AND
ALLOWANCES OF A SECOND LIEUTENANT AND FIRST LIEUTENANT FOR THE PERIOD
FROM OCTOBER 17, 1954, THROUGH JUNE 15, 1955, THE PAY AND ALLOWANCES OF
A FIRST LIEUTENANT FROM JUNE 16, 1955, THROUGH JULY 23, 1956, AND PAY
AND ALLOWANCES FOR 60 DAYS ACCRUED LEAVE, LESS $943.50 FEDERAL
WITHHOLDING TAX. YOUR REQUEST HAS BEEN ALLOCATED D.O. NO. 421 BY THE
DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.
IT APPEARS THAT THE OFFICER WAS APPOINTED SECOND LIEUTENANT IN THE
UNITED STATES ARMY RESERVE ON APRIL 17, 1953, AND ENTERED UPON EXTENDED
ACTIVE DUTY IN SUCH GRADE FOR NOT LESS THAN THREE YEARS; THAT ON JUNE
5, 1954, HE WAS CONVICTED BY A GENERAL COURT-MARTIAL; THAT THE APPROVED
COURT-MARTIAL SENTENCE PROVIDED FOR DISMISSAL FROM THE SERVICE, TOTAL
FORFEITURES AND CONFINEMENT AT HARD LABOR FOR 10 YEARS; AND THAT
EFFECTIVE JUNE 15, 1955, HE WAS DISMISSED FROM THE SERVICE AND CONFINED
AT UNITED STATES DISCIPLINARY BARRACKS, FORT LEAVENWORTH, KANSAS. PRIOR
TO THAT TIME HE APPARENTLY WAS CONFINED IN DISCIPLINARY BARRACKS AT CAMP
GORDON, GEORGIA.
IT ALSO APPEARS THAT ON JUNE 23, 1955, THE OFFICER TIMELY PETITIONED
THE JUDGE ADVOCATE GENERAL OF THE ARMY FOR A NEW TRIAL WHICH WAS GRANTED
ON THE BASIS OF NEWLY DISCOVERED EVIDENCE AND SUBSTANTIAL EVIDENCE OF
FRAUD ON THE COURT PREJUDICIAL TO THE OFFICER; THAT ON JANUARY 6, 1956,
THE DESIGNATED CONVENING AUTHORITY FOR THE OFFICER'S NEW TRIAL,
DISMISSED ALL CHARGES AGAINST HIM AND ORDERED RESTORATION OF ALL RIGHTS,
PRIVILEGES AND PROPERTY OF WHICH HE HAD BEEN DEPRIVED BY VIRTUE OF THE
APPROVED SENTENCE OF THE COURT; THAT ON JANUARY 20, 1956, THE OFFICER
WAS RELEASED FROM CONFINEMENT AND SET AT LIBERTY; AND THAT ON FEBRUARY
9, 1956, AN HONORABLE DISCHARGE CERTIFICATE WAS SUBSTITUTED FOR THE
PREVIOUSLY EXECUTED SENTENCE OF DISMISSAL, EFFECTIVE THE SAME DATE.
THEREAFTER, UNDER THE PROVISIONS OF ARTICLE 75(C), UNIFORM CODE OF
MILITARY JUSTICE, THE OFFICER PETITIONED THE PRESIDENT OF THE UNITED
STATES FOR REAPPOINTMENT AS A COMMISSIONED OFFICER. THAT PETITION WAS
APPROVED AND THE TENDERED INDEFINITE TERM APPOINTMENT AS FIRST
LIEUTENANT IN THE UNITED STATES ARMY RESERVE WAS ACCEPTED ON JULY 23,
1956.
IT FURTHER APPEARS THAT THE OFFICER PETITIONED THE ARMY BOARD FOR
CORRECTION OF MILITARY RECORDS FOR CORRECTION OF HIS ARMY RECORDS, AND
UNDER THE PROVISIONS OF 10 U.S.C. 1552 HIS RECORDS WERE CORRECTED TO
SHOW:
"A. THAT HE WAS PROMOTED TO FIRST LIEUTENANT, ARMY OF THE UNITED
STATES, ON 17 OCTOBER 1954;
"B. THAT THE ORDERS WHICH EFFECTED HIS DISMISSAL FROM THE SERVICE ON
15 JUNE 1955 ARE CONSIDERED TO BE NULL AND VOID AND OF NO FURTHER FORCE
OR EFFECT;
"C. THAT THE ORDERS WHICH EFFECTED HIS HONORABLE DISCHARGE FROM THE
SERVICE ON 15 JUNE 1955 ARE CONSIDERED TO BE NULL AND VOID AND OF NO
FURTHER FORCE OR EFFECT;
"D. THAT HE WAS PROMOTED TO FIRST LIEUTENANT, UNITED STATES ARMY
RESERVE, ON 16 APRIL 1956;
"E. THAT HE WAS RELIEVED FROM ACTIVE DUTY ON 23 JULY 1956 IN THE
GRADE OF FIRST LIEUTENANT, ARMY OF THE UNITED STATES; AND
"F. THAT HE SERVED ON CONTINUOUS ACTIVE DUTY FROM 17 APRIL 1953
THROUGH 23 JULY 1956."
IT IS STATED THAT A CERTIFICATE WAS FORWARDED TO CLAIMANT FOR THE
AMOUNT CONSIDERED TO BE DUE AS A RESULT OF THE CORRECTION OF HIS
RECORDS, BUT SINCE THE COMPUTATION DID NOT INCLUDE CREDIT FOR QUARTERS
ALLOWANCE FOR THE PERIOD JUNE 16, 1955, THROUGH JULY 23, 1956, THE
OFFICER REFUSED TO EXECUTE THE CLAIM CERTIFICATE. THE OFFICER'S
ATTORNEY CONTENDS THAT A PRISON CELL IS NOT ADEQUATE QUARTERS FOR AN
OFFICER. A NEW CLAIM CERTIFICATE WAS PREPARED AND SIGNED BY THE
CLAIMANT WHICH INCLUDED CREDIT FOR QUARTERS ALLOWANCE FOR PERIOD JULY 8,
1954, THROUGH JULY 23, 1956. THE CREDIT FOR QUARTERS ALLOWANCE INCLUDES
THE PERIOD THE ORIGINAL SENTENCE WAS APPROVED FOR TOTAL FORFEITURES AND
CONFINEMENT THROUGH THE CORRECTED DATE OF RELEASE FROM ACTIVE DUTY.
THE QUESTION PRESENTED IS WHETHER THE OFFICER WAS FURNISHED QUARTERS,
WHILE A PRISONER, THAT WERE APPROPRIATE TO HIS RANK OR ADEQUATE FOR AN
OFFICER. A COROLLARY QUESTION IS WHETHER THE SUBSISTENCE ALLOWANCE DUE
THE OFFICER MAY BE PROPERLY ADJUSTED FOR THE RATIONS FURNISHED FOR THE
PERIOD OF CONFINEMENT OF THE OFFICER.
UNDER THE PROVISIONS OF SECTION 1552, OF TITLE 10, UNITED STATES
CODE, ADMINISTRATIVE CORRECTION OF MILITARY RECORDS IS AUTHORIZED IN
CASES WHERE, IN THE JUDGMENT OF THE SECRETARY CONCERNED, SUCH ACTION IS
NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE AND CORRECTIONS SO
MADE ARE FINAL AND CONCLUSIVE ON OUR OFFICE. HENCE, A DETERMINATION OF
THE AMOUNT WHICH MAY BE PAID UNDER SUCH CORRECTION REQUIRES ONLY THE
APPLICATION OF THE PROPER PAY STATUTES TO THE FACTS IN THE CASE AND THE
CLAIMANT'S STATUS AS FIXED BY HIS CORRECTED RECORD. 32 COMP. GEN. 242;
32 COMP. GEN. 372.
SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 63
STAT. 812, PROVIDES, IN PERTINENT PART AS FOLLOWS:
"SEC. 302. (A) EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION OR BY ANY
OTHER PROVISION OF LAW, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO
RECEIVE BASIC PAY SHALL BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR
QUARTERS IN SUCH AMOUNT AND UNDER SUCH CIRCUMSTANCES AS ARE PROVIDED IN
THIS SECTION: ***
"(B) EXCEPT AS OTHERWISE PROVIDED BY LAW, NO BASIC ALLOWANCE FOR
QUARTERS SHALL ACCRUE TO MEMBERS OF THE UNIFORMED SERVICES ASSIGNED TO
GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE
UNIFORMED SERVICES, APPROPRIATE TO THEIR RANK, GRADE, OR RATING AND
ADEQUATE FOR THEMSELVES AND DEPENDENTS, IF WITH DEPENDENTS."
WHILE THE OFFICER'S RECORD WAS CORRECTED TO OMIT ALL REFERENCE TO HIS
COURT-MARTIAL AND MATTERS RELATED THERETO, IT DOES NOT NECESSARILY
FOLLOW THAT THERE WOULD BE NO REFERENCE TO THE OCCUPANCY OF QUARTERS.
HOWEVER, SINCE IT DOES NOT APPEAR THAT THE FURNISHING OF QUARTERS IN
CONNECTION WITH HIS CONFINEMENT IN DISCIPLINARY BARRACKS UNDER THE
COURT-MARTIAL SENTENCE, COULD PROPERLY BE REGARDED AS AN ASSIGNMENT OF
QUARTERS APPROPRIATE TO HIS RANK, HE IS ENTITLED TO A BASIC ALLOWANCE
FOR QUARTERS DURING THAT PERIOD.
ALSO, THE OFFICER IS ENTITLED TO THE BASIC ALLOWANCE FOR SUBSISTENCE,
IN VIEW OF THE PLAIN PROVISIONS OF SECTION 301(A) OF THE CAREER
COMPENSATION ACT, THE PERTINENT PART OF WHICH PROVIDES THAT "OFFICERS
SHALL, AT ALL TIMES, BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR
SUBSISTENCE ON A MONTHLY BASIS." HOWEVER, HIS MEALS WERE FURNISHED AT
GOVERNMENT EXPENSE. HIS PAY RECORD SHOWS THAT SUBSISTENCE WAS FURNISHED
IN KIND ON A FIELD RATION BASIS PRIOR TO JUNE 16, 1955, AND THAT
DEDUCTIONS WERE MADE FOR THE VALUE OF THE MEALS SO FURNISHED. PARAGRAPH
4-4C, ARMY REGULATIONS 37-104. PROPER DEDUCTIONS SHOULD ALSO BE MADE
FOR THE MEALS FURNISHED AFTER THAT DATE. COMPARE PARAGRAPH 4-4B OF THE
CITED REGULATIONS.
ACCORDINGLY, THE VOUCHER AND ACCOMPANYING CLAIM ARE RETURNED AND, IF
AMENDED TO INCLUDE THE ADDITIONAL DEDUCTIONS MENTIONED ABOVE, MAY BE
PAID IF OTHERWISE CORRECT.
B-139675, JUN 19, 1959
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
FINANCE AND ACCOUNTING OFFICER:
REFERENCE IS MADE TO YOUR LETTER OF MAY 15, 1959 (FINXE-B 167/9 MAR
59), TRANSMITTING A VOUCHER STATED IN FAVOR OF CHERRY TRANSFER AND
STORAGE COMPANY, ATLANTA, GEORGIA, FOR $336.96 COVERING CHARGES FOR
STORAGE OF HOUSEHOLD GOODS OF M/SGT. EUGENE WELLER, AND REQUESTING AN
ADVANCE DECISION THEREON.
SERVICES FOR WHICH PAYMENT IS CLAIMED WERE RENDERED UNDER AUTHORITY
OF BASIC AGREEMENT NO. DA 09-030-QM 10-420, DATED NOVEMBER 26, 1956,
WHICH QUOTES RATES BY ITEMS OF SERVICE. PAYMENT IS TO BE MADE UPON
DELIVERY OF HOUSEHOLD GOODS TO STORAGE WAREHOUSE PLUS ONE MONTH'S
STORAGE CHARGE AND EACH SIX MONTHS THEREAFTER UNTIL GOODS ARE REMOVED.
SUPPLEMENTAL AGREEMENT NUMBER 5, UPON WHICH THE VOUCHER WAS
SUBMITTED, QUOTES THE FOLLOWING RATES:
"ITEM I PACKING $2.25 PER GROSS CWT
" II WARDROBE NO CHARGE
" III DRAYAGE ZONE #1 3.00 PER CWT
" IV HANDLING IN 5.15 PER CWT
" V STORAGE NO CHARGE
" VI HANDLING OUT .85 PER CWT
" VII DELIVERY NO CHARGE
" VIII UNPACKING NO CHARGE"
ITEM V SHOWS "NO CHARGE" FOR STORAGE, YET THIRTY MONTHS STORAGE IS
INVOLVED. SINCE THE $5.15 PER CWT "HANDLING IN" CHARGE APPEARS TO
INCLUDE ENOUGH TO TAKE CARE OF STORAGE EXPENSE QUESTION ARISES AS TO
WHETHER THIS CONSTITUTES AN ADVANCE PAYMENT OF STORAGE CHARGES.
DEPARTMENT OF DEFENSE DIRECTIVE NUMBER 4145.16-R REGARDING
"COMMERCIAL WAREHOUSING AND RELATED SERVICES FOR HOUSEHOLD GOODS OF
MILITARY PERSONNEL" REQUIRES USING ACTIVITIES TO ISSUE SERVICE ORDERS TO
THE FIRM WHOSE BASIC AGREEMENT OFFERS THE LOWEST OVERALL COST TO THE
GOVERNMENT, WHETHER OR NOT THE RATES STIPULATED IN THE BASIC AGREEMENT
INCLUDE ANY CHARGE FOR STORAGE.
THIS OFFICE IS IN AGREEMENT WITH THE VIEW EXPRESSED BY THE OFFICE OF
THE GENERAL COUNSEL, OFFICE OF THE QUARTERMASTER GENERAL, IN THIS
MATTER, NAMELY THAT:
"ONCE A SERVICE ORDER HAS BEEN ISSUED, THE GOVERNMENT BECOMES
CONTRACTUALLY BOUND TO MAKE PAYMENT TO THE CONTRACTOR AT THE RATES
STIPULATED IN THE BASIC AGREEMENT. INASMUCH AS THE BASIC AGREEMENT IN
THIS INSTANCE SPECIFIES NO CHARGE FOR STORAGE, PAYMENT OF THE STIPULATED
HANDLING IN CHARGE DOES NOT CONSTITUTE AN ADVANCE PAYMENT FOR STORAGE
CHARGES."
WHILE IT IS QUITE PROBABLE THAT THE CONTRACTOR HAS INCLUDED HIS
STORAGE CHARGES IN OTHER TEMS, THERE IS NO WAY BY WHICH WE CAN DETERMINE
THE AMOUNT REPRESENTING STORAGE CHARGES WHICH IS HIDDEN UNDER OTHER
ITEMS. BY THE SAME TOKEN IT MAY ALSO BE SAID THAT THE STORAGE CHARGES
UNDER SUPPLEMENTAL AGREEMENT NUMBER 9, EFFECTIVE MARCH 24, 1959, WHICH
IS $.05 PER CWT PER MONTH, INDICATES THAT THE STORAGE CHARGES ARE
COVERED UNDER OTHER ITEMS THERE.
THE GOVERNMENT, HAVING ISSUED A SERVICE ORDER BY WHICH IT IS AGREED
THAT "NO CHARGE" IS TO BE MADE FOR STORAGE, OR THAT A NOMINAL CHARGE
WILL BE MADE, DOES NOT APPEAR TO BE IN A POSITION SUBSEQUENTLY TO
QUESTION THE VALIDITY OF THE PAYMENT ON THE GROUND THAT IT CONSTITUTES
AN ADVANCE PAYMENT FOR STORAGE. STRICTLY SPEAKING THE STORAGE CHARGES
ARE AS THEY ARE SET FORTH IN THE SUPPLEMENTAL AGREEMENT. FURTHERMORE
THIS OFFICE KNOWS OF NO BASIS UPON WHICH PAYMENT COULD BE MADE OTHER
THAN UPON THE TERMS AGREED UPON.
ACCORDINGLY, THIS OFFICE PERCEIVES NO LEGAL OBJECTION TO PAYMENT OF
THE ENCLOSED VOUCHER IN THE AMOUNT OF $336.96, IF OTHERWISE CORRECT. IT
IS NOTED THAT THE AMOUNT OF $339.96 WAS ERRONEOUSLY ENTERED UNDER THE
HEADING "AMOUNT VERIFIED; CORRECT FOR," ON THE VOUCHER.
B-139689, JUN 18, 1959
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
WILLIAM L. MCELWEE, SWCP, 4709470, USN:
REFERENCE IS MADE TO YOUR CLAIM FOR PER DIEM FOR THE PERIOD SEPTEMBER
29, 1955, TO JANUARY 19, 1956, FORWARDED HERE BY LETTER DATED APRIL 15,
1959, FROM THE UNITED STATES NAVY REGIONAL ACCOUNTS OFFICE. A SIMILAR
CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF JUNE 10, 1957, AND YOUR
PRESENT CLAIM WILL BE TREATED AS A REQUEST FOR REVIEW OF THAT
SETTLEMENT.
THE RECORD SHOWS YOU WERE DEPLOYED TO ANTIGUA, BRITISH WEST INDIES,
AS A MEMBER OF A MOBILE CONSTRUCTION UNIT DURING THE PERIOD INVOLVED
UNDER VERBAL ORDERS GIVEN PURSUANT TO MOVEMENT ORDERS NO. 203-55, OF
AUGUST 29, 1955. WRITTEN ORDERS ISSUED ON JUNE 7, 1956, PURPORTING TO
CONFIRM VERBAL ORDERS DIRECTING TEMPORARY ADDITIONAL DUTY FOR THE PERIOD
IN QUESTION.
FOR A LONG TIME DUTY OF THIS TYPE WAS NOT GENERALLY REGARDED AS
TEMPORARY DUTY ENTITLING MEMBERS SO ENGAGED TO PER DIEM. AS A RESULT,
MUCH OF SUCH DUTY WAS PERFORMED UNDER ORAL ORDERS ISSUED PURSUANT TO
SO-CALLED MOVEMENT ORDERS, OR UNDER WRITTEN ORDERS DESIGNATING THE
ASSIGNMENT SIMPLY AS DUTY. TO CLARIFY THE NAVY DEPARTMENT POLICY IN
THIS REGARD THE SECRETARY OF THE NAVY ISSUED SECNAV INSTRUCTIONS 7220.19
ON JUNE 4, 1956. AS TO DUTY OF THIS TYPE ALREADY COMPLETED, PARAGRAPH 6
OF THE SECRETARY'S INSTRUCTIONS PROVIDED:
"C. MEMBERS WHO HAVE COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY
AND WHO, PRIOR TO RECEIPT OF THIS INSTRUCTION, WERE ISSUED WRITTEN
TEMPORARY ADDITIONAL DUTY ORDERS WHICH WERE DIRECTED TO AN INDIVIDUAL OR
TO A GROUP WITH EACH INDIVIDUAL NAMED WILL BE PAID THE APPROPRIATE PER
DIEM ALLOWANCES.
"D. MEMBERS WHO HAVE COMPLETED A PERIOD OF TEMPORARY ADDITIONAL
DUTY, FOR WHICH THE REQUIRED WRITTEN ORDERS WERE NOT ISSUED PRIOR TO THE
DATE OF THIS INSTRUCTION, WILL NOT BE ISSUED CONFIRMING ORDERS."
THE PROVISIONS OF SUBPARAGRAPH C OF PARAGRAPH 6, SECNAV INSTRUCTIONS
7220.19, QUOTED ABOVE, CONSTITUTE AN EFFECTIVE EXERCISE OF
ADMINISTRATIVE DISCRETION IN AUTHORIZING PAYMENT OF PER DIEM TO MEMBERS
WHO HAD COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY FOR WHICH
CONFIRMATORY WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS ALREADY HAD BEEN
ISSUED. THESE WRITTEN ORDERS, HOWEVER, IN ORDER TO BE EFFECTIVE MUST BE
SUCH AS COMPLY WITH THE APPLICABLE STATUTE AND REGULATIONS ISSUED
PURSUANT THERETO.
SECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 57
U.S.G. 253 813, AUTHORIZES PAYMENT OF TRAVEL AND TRANSPORTATION
ALLOWANCES UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARIES
CONCERNED ONLY FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER COMPETENT
ORDRRS WHICH CONTEMPLATES, GENERALLY, WRITTEN ORDERS USSUED IN ADVANCE
OF TRAVEL. PARAGRAPHS 3002-1 AND 3002-2 OF THE JOINT TRAVEL REGULATIONS
PROVIDE THAT WRITTEN ORDERS ISSUED BY COMPETENT AUTHORITY ARE REQUIRED
FOR OFFICIAL TRAVEL OR FOR REIMBURSEMENT OF EXPENSES INCIDENT THERETO,
BUT THAT A VERBAL ORDER GIVEN IN ADVANCE OF TRAVEL AND SUBSEQUENTLY
CONFIRMED IN WRITING GIVING DATE OF VERBAL ORDER AND APPROVED BY
COMPETENT AUTHORITY WILL MEET THE REQUIREMENT FOR WRITTEN ORDERS.
PARAGRAPH 3003-2 OF THE HOINT TRAVEL REGULATIONS DEFINES TEMPORARY DUTY
ORDERS AS ORDERS TO DUTY AT A LOCATION OTHER THAN THE MEMBER'S PERMANENT
STATION WHICH ORDERS PROVIDE FOR FURTHER ASSIGNMENT TO A NEW PERMANENT
STATION OR FOR RETURN TO THE OLD PERMANENT STATION. YOUR ORDERS OF JUNE
7, 1956, WHILE CAPTIONED "TEMPORARY ADDITIONAL DUTY; CONFIRMATION OF
VERBAL ORDERS FOR" ARE NOT COMPETENT ORDERS. WHILE THEY SHOW THAT YOU
WERE ASSIGNED TO DUTY WITH THE U. S. NAVAL MOBILE CONSTRUCTION BATTALION
SIX ON OCTOBER 9, 1955, AND THAT YOU WERE DETACHED ON JANUARY 20, 1956,
TO COMPLY WITH ORDERS TRANSFERRING YOU TO DUTY AT NORFOLK, VIRGINIA,
THEY DO NOT CONFIRM SPECIFIC VERBAL ORDERS DIRECTING TRAVEL, AND
PROVIDING FOR YOUR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR
YOUR RETURN TO YOUR OLD PERMANENT STATION, BUT RECITE ONLY THAT THEY
CONFIRM SUCH ORDERS FOR THE DUTY PERFORMED AS MUST HAVE BEEN ISSUED "AS
A MATTER OF NECESSITY." HENCE, THESE ORDERS DO NOT MEET THE REQUIREMENT
OF PARAGRAPH 6C OF SECNAV INSTRUCTION 7220.19 FOR WRITTEN TEMPORARY
ADDITIONAL DUTY ORDERS AND AFFORD NO BASIS FOR THE ALLOWANCE OF YOUR
CLAIM. MODIFICATION AT THIS TIME OF THOSE ORDERS TO SHOW TEMPORARY DUTY
WAS IN FACT PERFORMED DURING THE PERIOD OF YOUR CLAIM WOULD SERVE NO
USEFUL PURPOSE. SEE PARAGRAPH 6D OF THE CITED SECNAV INSTRUCTION WHICH
PROVIDES IN EFFECT THAT UNLESS PROPER CONFIRMATORY ORDERS WERE ISSUED
PRIOR TO RECEIPT OF THAT INSTRUCTION, CONFIRMING ORDERS WILL NOT BE
ISSUED. ALSO, TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED
RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE
ACCRUED AND BECOME FIXED UNDER THE APPLICABLE STATUTES, REGULATIONS AND
ORDERS FOR TRAVEL ALREADY PERFORMED. SEE 23 COMP. GEN. 716; 24 ID.
439.
ACCORDINGLY, THERE IS NO FURTHER ACTION WE MAY TAKE IN THE MATTER.
B-139150, JUN 16, 1959
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
MAJOR R. M. BURRILL, U.S. MARINE CORPS:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 18, 1959, REQUESTING A
DECISION AS TO THE PROPER AMOUNT OF DISABILITY SEVERANCE PAY IN THE CASE
OF HENRY W. HARRIS, FORMER PRIVATE, FIRST CLASS, UNITED STATES MARINE
CORPS. THIS REQUEST WAS ASSIGNED SUBMISSION NO. DO-MC-408 BY THE
MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.
IT APPEARS THAT HARRIS WAS TRANSFERRED TO THE TEMPORARY DISABILITY
RETIRED LIST ON MAY 1, 1954, WITH A DISABILITY RATING OF 50 PERCENT, AND
WITH TOTAL SERVICE OF 10 YEARS, 3 MONTHS, 7 DAYS, OF WHICH 10 YEARS, 2
MONTHS, 22 DAYS WAS ACTIVE SERVICE. IT ALSO APPEARS THAT EFFECTIVE MAY
1, 1954, HE WAS CREDITED WITH RETIRED PAY AT THE RATE OF $62.40 PER
MONTH, 50 PERCENT OF THE ACTIVE-DUTY PAY OF A PRIVATE, FIRST CLASS, WITH
10 YEARS' SERVICE; THAT ON THE SAME BASIS HE WAS CREDITED WITH RETIRED
PAY AT THE RATE OF $66.30 PER MONTH EFFECTIVE APRIL 1, 1955; AND THAT
PURSUANT TO SECTION 4 OF THE ACT OF MAY 20, 1958, 72 STAT. 128, HE WAS
CREDITED EFFECTIVE JUNE 1, 1958, WITH RETIRED PAY AT THE RATE OF $70.28
PER MONTH, $66.30 INCREASED BY 6 PERCENT.
IT IS INDICATED THAT HARRIS' DISABILITY RATING DECREASED FROM 50
PERCENT TO LESS THAN 30 PERCENT, AND THAT HE WAS SEPARATED FROM THE
SERVICE EFFECTIVE JANUARY 31, 1959, UNDER APPLICABLE PROVISIONS OF TITLE
IV OF THE CAREER COMPENSATION ACT OF 1949 (NOW 10 U.S.C. 1203, 1210(E))
AND WAS PAID SEVERANCE PAY IN THE AMOUNT OF $2,160 PURSUANT TO THE
PROVISIONS OF THAT TITLE CODIFIED IN 10 U.S.C. 1212. COMPARE 37 COMP.
GEN. 166 AND 446.
SECTION 10 OF THE ABOVE ACT OF MAY 20, 1958, 72 STAT. 130 (QUOTING
FROM 37 U.S.C.A. 232, NOTE), PROVIDES, IN PERTINENT PART, THAT:
"THE ENACTMENT OF THIS ACT SHALL NOT OPERATE TO REDUCE -
"(1) THE BASIC PAY OR RETIRED PAY TO WHICH A MEMBER OR FORMER MEMBER
OF A UNIFORMED SERVICE WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE
OF THIS ACT ***."
SECTION 1212 OF TITLE 10, U.S. CODE, PROVIDES, IN PERTINENT PART,
THAT:
"(A) UPON SEPARATION FROM HIS ARMED FORCE UNDER SECTION 1203 OR 1206
OF THIS TITLE, A MEMBER IS ENTITLED TO DISABILITY SEVERANCE PAY COMPUTED
BY MULTIPLYING (1) HIS YEARS OF SERVICE, BUT NOT MORE THAN 12, COMPUTED
UNDER SECTION 1208 OF THIS TITLE, BY (2) THE HIGHEST OF THE FOLLOWING
AMOUNTS:
"(A) TWICE THE AMOUNT OF MONTHLY BASIC PAY TO WHICH HE WOULD BE
ENTITLED IF SERVING (I) ON ACTIVE DUTY ON THE DATE WHEN HE IS SEPARATED
AND (II) IN THE GRADE AND RANK IN WHICH HE WAS SERVING ON THE DATE WHEN
HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, OR IF HIS
NAME WAS NOT CARRIED ON THAT LIST, ON THE DATE WHEN HE IS SEPARATED."
PARAGRAPHS (B), (C), AND (D), OF SUBSECTION (A) RELATE TO CONDITIONS
NOT PRESENT IN HARRIS' CASE AND HENCE ARE NOT MATERIAL HERE.
YOUR LETTER PRESENTS FOR CONSIDERATION THREE POSSIBLE METHODS OF
COMPUTATION OF HARRIS' DISABILITY SEVERANCE PAY AS FOLLOWS:
"A. BASIC PAY OF E-2 OVER 14 YEARS UNDER PL 85-422, 85TH CONGRESS,
$108.00 TIMES 2(MONTHS) TIMES 10 (YEARS ACTIVE DUTY), RESULTING IN
$2,160.00.
"B. BASIC PAY OF E-2 OVER 10 YEARS UNDER PL 346-82ND CONGRESS,
$124.80 TIMES 2(MONTHS) TIMES 10 (YEARS ACTIVE DUTY), RESULTING IN
$2,496.00. IT IS TO BE NOTED THAT HARRIS WAS ACTUALLY IN RECEIPT OF
$124.80 PER MONTH AT TIME OF TRANSFER TO THE TEMPORARY DISABILITY
RETIRED LIST ON 1 MAY 1954.
"C. BASIC PAY OF E-2 OVER 14 YEARS UNDER PL 20-84TH CONGRESS,
$132.60 TIMES 2(MONTHS) TIMES 10 (YEARS ACTIVE DUTY), OR $2,652.00.
THIS COMPUTATION IS BASED ON THE PREMISE THAT HAD HARRIS REMAINED ON
ACTIVE DUTY IN LIEU OF BEING TRANSFERRED TO THE TEMPORARY DISABILITY
RETIRED LIST ON 1 MAY 1954 HE WOULD HAVE BEEN IN RECEIPT OF $132.60 PER
MONTH ON 31 MAY 1958 AND WOULD HAVE REMAINED IN A 'SAVED-PAY' STATUS."
IT IS STATED THAT HARRIS WAS PAID DISABILITY SEVERANCE PAY IN THE
AMOUNT OF $2,160, COMPUTED UNDER METHOD A.
IT WAS HELD IN 19 COMP. GEN. 573 THAT THE SAVED-PAY PROVISIONS OF THE
PAY READJUSTMENT ACT OF JUNE 10, 1922, SAVED TO AN OFFICER, RETIRED
PRIOR TO THE EFFECTIVE DATE OF THAT ACT, THE RIGHT TO BOTH ACTIVE-DUTY
PAY AND RETIRED PAY ON THE BASIS OF THE LAWS IN EFFECT ON THE DAY
PRECEDING SUCH EFFECTIVE DATE. ALSO, IT HAS BEEN HELD THAT THE SAVINGS
PROVISIONS OF SECTION 10 OF THE ACT OF MAY 10, 1958, RELATING TO
ACTIVE-DUTY PAY, ARE NOT RESTRICTED SOLELY TO THE PROTECTION OF THE RATE
OF SUCH PAY ACTUALLY ACCRUING TO A MEMBER ON MAY 31, 1958. SEE 38 COMP.
GEN. 47, 49-50, ANSWERS TO QUESTIONS H AND I, AND 38 COMP. GEN. 50,
BOTH DECISIONS HOLDING THAT SUCH SAVINGS PROVISIONS APPLY TO MEMBERS WHO
WERE IN A NONPAY STATUS ON MAY 31, 1958, SAVING TO THEM THE RATE OF PAY
TO WHICH THEY WOULD HAVE BEEN ENTITLED HAD THEY BEEN ON ACTIVE DUTY ON
THAT DAY. COMPARE 29 COMP. GEN. 241, 253, ANSWER TO QUESTION 11, A
SIMILAR HOLDING AS TO THE SAVED-PAY PROVISIONS OF THE CAREER
COMPENSATION ACT OF 1949.
IN CONSONANCE WITH THE ABOVE DECISIONS WE THINK THAT SECTION 10 OF
THE ACT OF MAY 20, 1958, OPERATES IN THE PRESENT CASE TO SAVE TO HARRIS
THE RIGHT TO ACTIVE-DUTY PAY, SHOULD ANY ACCRUE TO HIM AFTER MAY 31,
1958, COMPUTED ON THE BASIS OF THE PAY TO WHICH HE WOULD HAVE BEEN
ENTITLED IF HE HAD BEEN ON ACTIVE DUTY ON THAT DAY. SINCE HIS
DISABILITY SEVERANCE PAY IS FOR COMPUTATION ON THE BASIS OF THE ACTIVE
DUTY PAY TO WHICH HE WOULD HAVE BEEN ENTITLED IF HE HAD SERVED ON ACTIVE
DUTY ON JANUARY 31, 1959, IT FOLLOWS THAT SUCH SEVERANCE PAY SHOULD HAVE
BEEN COMPUTED ON THE RATE OF 132.60 PER MONTH AS SET OUT IN METHOD C,
ABOVE.
THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.
B-139188, JUN 10, 1959
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
LIEUTENANT COLONEL J. L. WHIPPLE:
BY FIRST ENDORSEMENT DATED MARCH 30, 1959, THE FIELD DIVISION, OFFICE
OF THE CHIEF OF FINANCE, FORWARDED YOUR LETTER OF MARCH 13, 1959, WITH
ENCLOSURES, SUBMITTING FOR ADVANCE DECISION (ASSIGNED DO NO. 410 BY THE
DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE) A VOUCHER
STATED IN FAVOR OF MRS. REGINA M. BEDNER, WIFE OF DAVID L. BEDNER,
FORMER ENLISTED MAN, REGULAR ARMY, REPRESENTING A CLASS Q ALLOTMENT FOR
THE PERIOD MAY 1, 1956, TO AUGUST 31, 1956, IN THE CIRCUMSTANCES
DISCLOSED. THE PROPOSED PAYMENT IS BASED ON A CORRECTION OF THE
ENLISTED MAN'S PAY RECORDS UNDER THE PROVISIONS OF 10 U.S.C. 1552.
IT APPEARS FROM THE RECORDS AND THE INFORMATION FURNISHED THAT MR.
BEDNER WAS INDUCTED INTO THE ARMY ON JUNE 8, 1953, AND AFTER SERVING
OVER SIX MONTHS HE ENLISTED IN THE REGULAR ARMY ON DECEMBER 19, 1953.
HE WAS RELEASED FROM ACTIVE DUTY AND TRANSFERRED TO THE ARMY RESERVE ON
DECEMBER 18, 1956. IT APPEARS THAT HE AUTHORIZED A CLASS Q ALLOTMENT
FOR HIS FORMER WIFE AND CHILD IN THE AMOUNT OF $117.10 A MONTH PAYABLE
TO HIS WIFE EFFECTIVE JULY 1, 1953, AND THAT SUCH ALLOTMENT WAS
DISCONTINUED JANUARY 31, 1954, BECAUSE OF THE DEATH OF HIS WIFE ON
JANUARY 30, 1954. IT APPEARS FURTHER THAT FOLLOWING HIS FIRST WIFE'S
DEATH HE AUTHORIZED A CLASS Q ALLOTMENT OF $91.30 A MONTH TO MRS. ROSE
SORRENTINO, CUSTODIAN OF HIS CHILD (MATERNAL GRANDMOTHER) EFFECTIVE
JANUARY 1, 1954; THAT SUCH ALLOTMENT WAS INCREASED TO $137.10 A MONTH
EFFECTIVE NOVEMBER 1, 1954; AND THAT PAYMENTS WERE MADE THROUGH AUGUST
31, 1956.
IT IS REPORTED THAT THE ENLISTED MEMBER SUBMITTED DOCUMENTS
AUTHORIZING THE DISCONTINUANCE OF THE ALLOTMENT OF $137.10 TO HIS CHILD
EFFECTIVE JULY 31, 1956, BECAUSE THE CHILD WAS ADOPTED BY THIRD PARTIES.
YOU SAY THAT THE AUTHORIZATION WAS RECEIVED TOO LATE TO PREVENT THE
MAILING OF THE CHECK FOR AUGUST 1956 AND SINCE THE CHILD WAS ADOPTED ON
AUGUST 13, 1956, IT WAS DETERMINED BY YOUR OFFICE THAT ENTITLEMENT
EXISTED TO THE ALLOTMENT THROUGH AUGUST 31, 1956.
YOU REPORT THAT FORMS 137 AND 1341 DATED AUGUST 27, 1956, WERE
RECEIVED SHOWING THAT THE SERVICE MEMBER REMARRIED ON APRIL 14, 1956,
AND HE AUTHORIZED A CLASS Q ALLOTMENT OF $137.10 A MONTH IN BEHALF OF
HIS WIFE, MRS. REGINA M. BEDNER, EFFECTIVE SEPTEMBER 1, 1956. PAYMENTS
WERE MADE THROUGH DECEMBER 31, 1956, WHEN THE ALLOTMENT WAS DISCONTINUED
DUE TO HIS DISCHARGE ON DECEMBER 18, 1956. YOUR LETTER INDICATES THAT
INFORMATION ON FILE SHOWS THAT THE SERVICEMAN INITIATED DOCUMENTS ON
APRIL 23, 1956, AUTHORIZING AN ALLOTMENT OF $137.10 A MONTH FOR HIS WIFE
EFFECTIVE MAY 1, 1956. HOWEVER, BECAUSE OF AN ADMINISTRATIVE ERROR, THE
DOCUMENTS WERE NOT FORWARDED TO THE FINANCE CENTER, INDIANAPOLIS,
INDIANA, AND THEREFORE NO PAYMENTS WERE MADE TO THE WIFE FOR THE PERIOD
MAY 1, 1956, TO AUGUST 31, 1956. IN THAT CONNECTION, ITEM 40 OF THE
ENLISTED MAN'S PAY RECORD CLOSED JUNE 30, 1956, CONTAINS A NOTATION THAT
DEPENDENCY WAS ESTABLISHED FOR WIFE AND CHILD ON MAY 1, 1956. YOU ALSO
SAY THAT IF THE ALLOTMENT OF $137.10 A MONTH HAD BEEN APPORTIONED
BETWEEN HIS WIFE AND CHILD IN ACCORDANCE WITH THE PROVISIONS OF
PARAGRAPH 89, ARMY REGULATIONS 37-104, THE WIFE WOULD HAVE RECEIVED
TWICE AS MUCH AS THE CHILD ($91.40 AND $45.70 A MONTH RESPECTIVELY).
MR. BEDNER REQUESTED THE ARMY BOARD FOR CORRECTION OF MILITARY
RECORDS TO CORRECT HIS RECORDS TO SHOW THAT HE WAS ENTITLED TO
REIMBURSEMENT OF $548.40, WHICH HE BELIEVED SHOULD HAVE BEEN PAID TO HIS
PRESENT WIFE, REGINA M. BEDNER, FOR THE FOUR MONTHS AFTER THEIR
MARRIAGE, MAY THROUGH AUGUST 1956. THAT AMOUNT REPRESENTS $137.10, THE
FULL CLASS Q ALLOTMENT FOR THAT PERIOD. THE CORRECTION BOARD IN ITS
CONCLUSIONS ON JUNE 11, 1958, RECOGNIZED THAT THERE WAS SOME DELAY IN
EFFECTING APPLICANT'S SPECIFIC REQUEST FOR A CHANGE IN HIS ALLOTMENT DUE
TO AN ADMINISTRATIVE ERROR, BUT DENIED MR. BEDNER'S APPLICATION BECAUSE
OF INSUFFICIENT EVIDENCE OF ERROR OR INJUSTICE TO WARRANT GRANTING THE
RELIEF REQUESTED. HOWEVER, ON NOVEMBER 18, 1958, THE UNDER SECRETARY OF
THE ARMY, IN A MEMORANDUM FOR THE ADJUTANT GENERAL, REQUESTED THE
CORRECTION OF THE RECORDS AS FOLLOWS:
"HAVING CONSIDERED THE FINDINGS, CONCLUSIONS AND RECOMMENDATION OF
THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, AND UNDER THE
PROVISIONS OF 10 U.S.C. 1552, IT IS REQUESTED:
"THAT ALL OF THE DEPARTMENT OF THE ARMY RECORDS OF DAVID L. M.
BEDNER BE CORRECTED TO SHOW THAT HE AUTHORIZED A CLASS Q ALLOTMENT OF
$137.10 PER MONTH IN FAVOR OF HIS WIFE, REGINA M. BEDNER, DURING THE
MONTH OF APRIL 1956 AND THAT SUCH ALLOTMENT WAS APPROVED BY THE FINANCE
CENTER, INDIANAPOLIS, INDIANA, EFFECTIVE 1 MAY 1956, AND PRORATED
BETWEEN HIS WIFE AND CHILD THROUGH THE MONTH OF AUGUST 1956."
THEREAFTER ON JANUARY 30, 1959, MR. BEDNER EXECUTED A CERTIFICATE
ACCEPTING THE PAYMENT TENDERED (UNDER THE PROVISIONS OF 10 U.S.C.
1552(C)) IN THE AMOUNT OF $335.82, PAYABLE TO MRS. REGINA M. BEDNER,
ALLOTTEE, COMPUTED AS FOLLOWS: CLASS Q ALLOTMENT AT $91.40 A MONTH FOR
THE PERIOD MAY 1 TO AUGUST 31, 1956, $365.60, LESS $29.78 DUE THE UNITED
STATES BY REASON OF OVERPAYMENT OF TRAVEL PAY ON DISCHARGE, DECEMBER 18,
1956.
SINCE AFTER SIX MONTHS' SERVICE AS AN INDUCTEE MR. BEDNER WAS
DISCHARGED AT FORT CAMPBELL, KENTUCKY, FOR THE SPECIFIC PURPOSE OF
REENLISTING IN THE REGULAR ARMY, HE WAS NOT ENTITLED TO AN INCREASED
TRAVEL ALLOWANCE UPON FINAL DISCHARGE BY REASON OF HIS DISCHARGE AND
REENLISTMENT AT FORT CAMPBELL, KENTUCKY. UPON FINAL DISCHARGE, HE WAS
ENTITLED ONLY TO MILEAGE FROM FORT EUSTIS, VIRGINIA, TO HIS HOME OF
RECORD, BALTIMORE, MARYLAND, THE PLACE FROM WHICH HE APPARENTLY WAS
ORDERED TO ACTIVE DUTY. THE DISTANCE BETWEEN FORT EUSTIS, VIRGINIA, TO
HIS HOME OF RECORD, BALTIMORE, MARYLAND, THE PLACE FROM WHICH HE
APPARENTLY WAS ORDERED TO ACTIVE DUTY. THE DISTANCE BETWEEN FORT
EUSTIS, VIRGINIA, AND BALTIMORE, MARYLAND, IS 213 MILES AT $.06 A MILE,
OR $12.78, RESULTING IN A OVERPAYMENT OF $43.50, LESS CREDIT DUE HIM OF
$13.72, LEAVING A BALANCE OF $29.78 DUE THE UNITED STATES.
YOU SAY THAT, SINCE THE ALLOTMENT WAS NOT APPORTIONED BETWEEN THE
WIFE AND CHILD DURING THE PERIOD IN QUESTION, THE FOLLOWING QUESTIONS
CONCERNING THE WIFE'S ENTITLEMENT ARE RAISED:
"A. DOES THE CORRECTED RECORD STATED ON 18 NOVEMBER 1958 REQUIRE
PAYMENT TO CONFORM TO THE RECORD AS CORRECTED?
"B. IF AN ADJUSTMENT OF PAYMENT IS REQUIRED, WHAT IS THE PROPER
AMOUNT DUE EACH PAYEE UNDER THE CORRECTED RECORD?
"C. IF THE PAYMENT IS MADE, WILL MRS. SORRENTINO, WHO RECEIVED
PAYMENT FOR THE SERVICEMAN'S CHILD, BE REQUIRED TO REFUND THE DIFFERENCE
BETWEEN THE AMOUNT SHE HAS RECEIVED AND THAT AMOUNT DUE HER AS A RESULT
OF THE ADJUSTMENT?"
UNDER THE PROVISIONS OF 10 U.S.C. 1552(A), 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. SUCH SECTION FURTHER PROVIDES THAT,
EXCEPT WHEN PROCURED BY FRAUD, A CORRECTION IS FINAL AND CONCLUSIVE ON
ALL OFFICERS OF THE UNITED STATES. HENCE, UNDER THE STATUTE ANY ACTION
TO BE TAKEN WITH RESPECT TO A MEMBER'S PAY ACCOUNT FOLLOWING A
CORRECTION OF HIS RECORD MUST BE CONSISTENT WITH THE RECORD AS
CORRECTED.
WITH RESPECT TO QUESTION C, WHEN A MEMBER AUTHORIZES AN ALLOTMENT OF
HIS PAY, UNDER THE APPLICABLE STATUTES THE ALLOTMENT PAYMENTS ARE MADE
SUBJECT TO ANY CONDITIONS THAT MAY BE IMPOSED BY REGULATIONS.
REGULATIONS CONTAINED IN AR 35-1465, DATED JULY 7, 1955, AND IN AR
35-1901, DATED JULY 20, 1955, PROVIDED FOR PAYMENT OF THE CLASS Q
ALLOTMENT UNTIL RECEIPT BY ALLOTMENT OPERATIONS OF NOTICE TO CHANGE OR
DISCONTINUE THE ALLOTMENT AND ALSO PROVIDED FOR ADDITIONAL ALLOTMENT
DEDUCTIONS FROM THE MEMBER'S PAY WHERE PAYMENT OF THE ALLOTMENT COULD
NOT BE TIMELY CHANGED OR DISCONTINUED BECAUSE OF DELAY IN THE RECEIPT BY
ALLOTMENT OPERATIONS OF APPROPRIATE DOCUMENTS. WHERE THE CHANGE OR
DISCONTINUANCE NOTICE WAS NOT TIMELY RECEIVED, IN THE CIRCUMSTANCES OF
THIS CASE, PAYMENTS ON THE BASIS OF INFORMATION THEN IN ALLOTMENT
OPERATIONS WERE PROPER PAYMENTS FOR WHICH DEDUCTIONS FROM THE MEMBER'S
PAY WERE REQUIRED TO BE MADE. IN ORDER FOR THE GOVERNMENT TO RECOVER
THE ALLOTMENT PAYMENTS FROM MRS. SORRENTINO IT WOULD BE NECESSARY TO
ESTABLISH THAT ALLOTMENT OPERATIONS RECEIVED TIMELY NOTICE OF THE
REDUCTION IN OR DISCONTINUANCE OF THE ALLOTMENT. THE ALLOTMENT PAYMENTS
RECEIVED BY HER FOR THE PERIOD MAY THROUGH AUGUST 1956 APPEAR TO HAVE
BEEN PROPERLY MADE AND THERE IS NOT APPARENT ANY TENABLE BASIS UPON
WHICH THE GOVERNMENT MAY RECOVER ANY PART OF THEM FROM HER. WHILE THE
CORRECTION MADE IN THIS CASE BY THE SECRETARY OF THE ARMY IS NOT
ENTIRELY CLEAR, IT DOES NOT PURPORT TO CHANGE THE RECORD OF THE PAYMENTS
ACTUALLY MADE FOR THE BENEFIT OF THE ENLISTED MAN'S CHILD AND IN OUR
OPINION SUCH CORRECTION MAY NOT BE VIEWED AS RETROACTIVELY MAKING MRS.
SORRENTINO LIABLE FOR REFUND OF ANY PART OF THE PAYMENTS INVOLVED WHICH
WERE PROPERLY PAID TO HER UNDER THE APPLICABLE REGULATIONS PURSUANT TO
THE MEMBER'S REQUEST AND FOR HIS BENEFIT. QUESTION C IS ANSWERED IN THE
NEGATIVE.
A CLASS Q ALLOTMENT, LIKE OTHER ALLOTMENTS, IS AN AUTHORIZATION BY A
MEMBER IN THE MILITARY SERVICE TO PAY A SPECIFIED AMOUNT OF HIS PAY AND
ALLOWANCES TO A DESIGNATED ALLOTTEE. SUCH AUTHORIZATION WAS RECOGNIZED
IN THIS CASE AND, AS INDICATED ABOVE, CERTAIN PROPER ALLOTMENT PAYMENTS
WERE MADE AND CHARGED AGAINST THE MEMBER'S ACCOUNT. THE BALANCE OF HIS
PAY AND ALLOWANCES, AFTER OTHER PROPER DEDUCTIONS, WAS RECEIVED BY HIM
AND IT DOES NOT APPEAR, EVEN AFTER THE CORRECTION OF THE RECORD, THAT
ANY AMOUNT REMAINS TO HIS CREDIT WHICH MAY BE PAID TO HIS WIFE AS A
CLASS Q ALLOTMENT. THERE IS NO INDICATION IN THE RECORD THAT THE MEMBER
HAS NOT RECEIVED THE BALANCE OF HIS AUTHORIZED PAY AND ALLOWANCES, AFTER
PROPER DEDUCTIONS, AND PAYMENT OF AN ADDITIONAL ALLOTMENT - WHICH MUST
ALSO BE CONSIDERED PART OF HIS PAY AND ALLOWANCES - WOULD RESULT IN AN
OVERPAYMENT OF PAY AND ALLOWANCES WHICH WOULD BE FOR RECOVERY FROM THE
MEMBER. WE KNOW OF NO AUTHORITY FOR PAYMENT OF A CLASS Q ALLOTMENT TO
THE FORMER ENLISTED MAN'S WIFE WITHOUT A CORRESPONDING DEBIT IN HIS PAY
ACCOUNT. ACCORDINGLY, SINCE IT APPEARS THAT PAYMENT OF THE AMOUNT
CLAIMED BY THE FORMER ENLISTED MAN FOR HIS WIFE WOULD RESULT IN HIS
INDEBTEDNESS TO THE GOVERNMENT FOR THE FULL AMOUNT PAID, NO PAYMENT IS
PROPER. QUESTION A IS ANSWERED IN THE NEGATIVE AND, IN VIEW OF THAT
ANSWER, NO REPLY TO QUESTION B IS REQUIRED. THE VOUCHER AND SUPPORTING
PAPERS ARE RETAINED HERE.
B-136903, JUN 9, 1959
HEADNOTES-UNVAILABLE
PRECIS-UNAVAILABLE
JACK W. HUDSON:
YOUR LETTER OF APRIL 24, 1959, REQUESTS REVIEW OF OUR CLAIMS DIVISION
SETTLEMENT OF MARCH 20, 1959, WHICH DENIED YOUR REQUEST FOR PAYMENT ON A
COMMUTED BASIS OF THE EXPENSES FOR TRANSPORTATION OF YOUR BOAT AND BOAT
TRAILER OR ALTERNATIVELY FOR 880 POUNDS OF THE HOUSEHOLD GOODS CARRIED
THEREIN, OR IN LIEU OF SUCH ALLOWANCE REIMBURSEMENT FOR ACTUAL EXPENSES
CLAIMED BY YOU FOR TRANSPORTATION OF THE HOUSEHOLD GOODS INCIDENT TO
PERMANENT CHANGE OF STATION FROM MINNEAPOLIS, MINNESOTA, TO NEW YORK,
NEW YORK.
THE FACTS PRESENTED BY THE RECORD AND YOUR LETTERS INDICATE THAT YOU
PURCHASED THE BOAT TRAILER TO TRANSPORT THE BOAT AND CERTAIN HOUSEHOLD
GOODS WHICH YOU HAD REASON TO BELIEVE WOULD EXCEED THE WEIGHT LIMITATION
OF 7,000 POUNDS. LATER YOU LEARNED THAT THAT PORTION OF YOUR HOUSEHOLD
GOODS WHICH WAS SHIPPED BY COMMERCIAL CARRIER HAD A TOTAL WEIGHT OF
6,120 POUNDS. IT ALSO APPEARS THAT YOU WERE INFORMED BY THE BUDGET AND
FINANCE OFFICER THAT IT WAS NOT NECESSARY TO DETERMINE THE ACTUAL WEIGHT
OF THE HOUSEHOLD GOODS TRANSPORTED IN THE BOAT AND NO ACTUAL WEIGHT OR
ESTIMATE OF WEIGHT BASED UPON CUBIC MEASUREMENTS OF PROPERLY LOADED VAN
SPACE HAVE BEEN PRESENTED. YOUR CLAIM IS BASED UPON THE CONTENTION THAT
THE AUTHORITY FOR THE TRANSPORTATION OF "HOUSEHOLD GOODS AND PERSONAL
EFFECTS" PROVIDED BY SECTION 1(B) OF THE ADMINISTRATIVE EXPENSES ACT OF
1946 (5 U.S.C. 73B-1(B)) AND EXECUTIVE ORDER NO. 9305, AS AMENDED,
INCLUDES REIMBURSEMENT FOR THE TRANSPORTATION OF A BOAT AND BOAT TRAILER
OR ALTERNATIVELY THAT REIMBURSEMENT IS AUTHORIZED FOR THE ESTIMATED
WEIGHT OF HOUSEHOLD GOODS AND PERSONAL EFFECTS TRANSPORTED IN A BOAT
TRANSPORTED ON A BOAT TRAILER. YOU HAVE CONTENDED THAT THE TERM
"PERSONAL EFFECTS" AS USED IN THE ADMINISTRATIVE EXPENSES ACT OF 1946,
SUPRA, IS SYNONYMOUS WITH THE TERM "PERSONAL PROPERTY," BASING SUCH
CONTENTION UPON THE FACT THAT IN 21 COMP. GEN. 40, THE TERM "PERSONAL
EFFECTS" USED IN THE ACT OF OCTOBER 10, 1940 (54 STAT. 1105), WAS
CONSTRUED TO BE SYNONYMOUS WITH "PERSONAL PROPERTY" GENERALLY.
YOUR CONTENTIONS AS TO THE INTENT OF CONGRESS IN THE USE OF THE WORDS
"HOUSEHOLD GOODS AND PERSONAL EFFECTS" ARE NOT SUPPORTED BY THE
LEGISLATIVE HISTORY OF THE ADMINISTRATIVE EXPENSES ACT OF 1946. IN H.
REPORT. NO. 2186, 79TH CONG., ON H.R. 6533, REPORTED FROM THE COMMITTEE
ON EXPENDITURES IN THE EXECUTIVE DEPARTMENTS, HOUSE OF REPRESENTATIVES,
AND IN S. REPT. NO. 1636, 79TH CONG., ON S. 1666, REPORTED FROM THE
COMMITTEE ON EXPENDITURES IN THE EXECUTIVE DEPARTMENTS, THE EXPLANATION
OF SECTION 1 OF THOSE BILLS, THE FORMER OF WHICH WAS SUBSEQUENTLY
ENACTED AS THE ADMINISTRATIVE EXPENSES ACT OF 1946, SUPRA, REFERS TO
COMMUTATION FOR SHIPMENT OF "HOUSHOLD GOODS" WITHOUT ADDITIONAL
REFERENCE TO OTHER PERSONAL PROPERTY. CONSEQUENTLY, AND SINCE IN THEIR
ORDINARY AND USUAL USAGE THE TERMS "HOUSEHOLD GOODS" AND "PERSONAL
EFFECTS" REFER TO PARTICULAR KINDS OF PERSONAL PROPERTY - THAT
ASSOCIATED WITH THE HOUSE AND THE PERSON - CERTAIN ITEMS OF PERSONAL
PROPERTY MAY REASONABLY BE CONSIDERED BEYOND THEIR PURVIEW. FOR THAT
REASON, AND AS IT WAS WITH REFERENCE TO THE PARTICULAR PURPOSE OF THE
1940 ACT - TO ACHIEVE UNFORMITY IN THE ADMINISTRATION OF SEVERAL BASIC
ACTS AUTHORIZING THE MOVEMENT OF EFFECTS OF EMPLOYEES - THE DEFINITION
FOUND IN 21 COMP. GEN. 40 DOES NOT CONTROL THE USE OF THE TERM "PERSONAL
EFFECTS" AS FOUND IN THE ADMINISTRATIVE EXPENSES ACT OF 1946. IT
FOLLOWS THAT OUR PREVIOUS STATEMENT IN B-136903, AUGUST 27, 1958, THAT
PERSONALLY OWNED BOATS AND BOAT TRAILERS ARE NOT "HOUSEHOLD GOODS AND
PERSONAL EFFECTS" WHICH MAY BE TRANSPORTED AT GOVERNMENT EXPENSE MUST BE
AFFIRMED. YOUR FIRST CLAIM MUST, ACCORDINGLY, BE DENIED.
YOUR ALTERNATIVE CLAIM IS FOR REIMBURSEMENT EITHER AT COMMUTED RATES
OR FOR THE ACTUAL EXPENSE OF 880 POUNDS OF THE HOUSEHOLD GOODS AND
PERSONAL EFFECTS TRANSPORTED IN THE BOAT LOADED ON THE BOAT TRAILER.
THE PAYMENT OF MILEAGE AND PAYMENT FOR TRANSPORTATION OF HOUSEHOLD GOODS
ARE PRESENTED SEPARATELY IN EXECUTIVE ORDER NO. 9805, AS AMENDED, AND
MAY BOTH BE PAID FOR A SINGLE MOVEMENT. SEE 34 COMP. GEN. 29. HOWEVER,
SUCH A RIGHT IS BASED UPON EITHER AN ACTUAL WEIGHT ATTESTED BY PROPER
EVIDENCE THEREOF, OR A CONSTRUCTIVE WEIGHT BASED UPON 7 POUNDS PER CUBIC
FOOT OF PROPERLY LOADED VAN SPACE OCCUPIED. NO ACCEPTABLE EVIDENCE OF
WEIGHT OR AMOUNT OF PROPERLY LOADED VAN SPACE HAS BEEN PRESENTED BY YOU.
THE ESTIMATED WEIGHT PRESENTED IS APPARENTLY BASED SOLELY UPON YOUR
ASSERTIONS, AND ALTHOUGH APPROVED ADMINISTRATIVELY, MAY NOT BE ACCEPTED
BY OUR OFFICE. CONSEQUENTLY, REIMBURSEMENT MAY BE BASED ONLY UPON
ACTUAL EXPENSE, IF ANY, INCURRED BY YOU IN THE TRANSPORTATION OF THE
SUBJECT HOUSEHOLD GOODS.
YOUR CASE APPEARS SIMILAR IN SOME RESPECTS TO 29 COMP. GEN. 95,
WHEREIN PAYMENT FOR TRANSPORTATION OF HOUSEHOLD GOODS WAS ALLOWED FOR
THE ACCEPTABLE ESTIMATED WEIGHT, BUT SUCH PAYMENT WAS NOT TO EXCEED
ACTUAL EXPENSE. THOSE EXPENSES LISTED BY YOU IN YOUR LETTER OF DECEMBER
3, 1958, ARE NOT REIMBURSABLE FOR THE FOLLOWING REASONS. THE ADDITIONAL
COST OF A HEAVY DUTY BOAT TRAILER IS NOT REIMBURSABLE SINCE IT IS AN
ESTIMATED COST BASED ON THE ESTIMATED ADDITIONAL CAPACITY NECESSARY FOR
TRANSPORTATION OF THE GOODS. SPECIAL TOLLS FOR BRIDGES, TUNNELS, AND
TURNPIKES, AND FOR STORAGE AND WEIGHING OF THE TRAILER ARE CLAIMED;
HOWEVER, THOSE TOLLS AND CHARGES ARE BASED UPON THE USE OF A TRAILER,
AND NOT UPON THE FACT THAT HOUSEHOLD GOODS WERE HAULED THEREIN. HENCE,
THEY ARE NOT ACTUAL EXPENSES OF THE TRANSPORTATION OF THE SUBJECT
HOUSEHOLD GOODS. THE ONLY BASIS FOR THE CLAIMED EXTRA GASOLINE AND
AUTOMOBILE DEPRECIATION COSTS IN YOUR ASSERTION, WHICH IS NOT SUFFICIENT
TO ESTABLISH THE AMOUNT, IF ANY, OF SUCH COSTS PROPERLY REFERABLE TO THE
TRANSPORTATION OF YOUR HOUSEHOLD GOODS. THE OTHER COSTS OF PACKING
CARTONS AND LABOR ARE UNSUPPORTED BY RECEIPTS OR OTHER EVIDENCE AND ARE
ONLY APPROXIMATE COSTS AND CANNOT, THEREFORE, BE A BASIS FOR
REIMBURSEMENT.
FOR THE ABOVE STATED REASONS OUR CLAIMS DIVISION SETTLEMENT OF MARCH
20, 1959, DENYING YOUR CLAIM IS AFFIRMED.
B-139210, JUN 9, 1959
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
CAPTAIN GEORGE W. ENGLE, USAF:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 20, 1959, REQUESTING
DECISION WHETHER MR. CARL F. HODGES IS ENTITLED TO PAYMENT ON AN
ENCLOSED VOUCHER AND MILITARY PAY ORDER REPRESENTING A LUMP-SUM
READJUSTMENT PAYMENT OF $4,110.60 UNDER 50 U.S.C. 1016. YOUR REQUEST
WAS ASSIGNED AIR FORCE REQUEST NO. 411 BY THE MILITARY PAY AND ALLOWANCE
COMMITTEE, DEPARTMENT OF DEFENSE.
SECTION 564 OF TITLE 10, UNITED STATES CODE, PROVIDES IN PERTINENT
PART THAT:
"(A) UNLESS RETIRED OR SEPARATED UNDER SOME OTHER PROVISION OF LAW, A
PERMANENT REGULAR WARRANT OFFICER WHO HAS TWICE FAILED OF SELECTION FOR
PROMOTION TO THE NEXT HIGHER PERMANENT REGULAR WARRANT OFFICER GRADE
SHALL -
"(3) IF HE HAS LESS THAN 18 YEARS OF SUCH ACTIVE SERVICE ON (A) THE
DATE WHEN THE SECRETARY CONCERNED APPROVES THE REPORT OF THE BOARD UNDER
SECTION 560 (G) OF THIS TITLE, (B) THE DATE WHEN HIS NAME WAS REMOVED
FROM THE RECOMMENDED LIST UNDER SECTION 562 (A) OF THIS TITLE, OR (C)
THE DATE PRESCRIBED BY THE SECRETARY CONCERNED UNDER SECTION 557 (B) OF
THIS TITLE, WHICHEVER APPLIES, BE SEPARATED 60 DAYS AFTER THAT DATE WITH
SEVERANCE PAY COMPUTED UNDER SECTION 1167 OF THIS TITLE, UNLESS -
"(A) UPON HIS REQUEST AND IN THE DISCRETION OF THE SECRETARY
CONCERNED, HE IS ENLISTED IN THE GRADE PRESCRIBED BY THE SECRETARY ***